the denning law journal 1 denning law journal 2019 vol 31 p 1 introduction to the 2019 general edition the editorial team of the denning law journal are pleased to offer its 2019 general edition, which covers a range of topical issues that fall within the remit of the journal and keeps faith with lord denning’s vision and far-sightedness. the aim of the denning law journal is to provide a forum for the widest discussion of issues arising in the common law world and the commonwealth, and also to embrace wider global issues of contemporary concern. lord denning recognised the importance of: • developing the common law; • focusing on the development of law in commonwealth jurisdictions; • the need for judicial and community recognition of the urgency of reform and modernisation of law; • the need to preserve traditions of judicial independence, integrity, accountability and creativity; • reflecting upon the interplay of law and morality; • the role to be played by the state in the defence of the individual; • international and comparative law; • the protection and promotion of human and constitutional rights; and • the development of constitutional and administrative law. the denning law journal strives to reflect these values and goals in every general edition. we have two new features in this 2019 general edition: the winner of our student writing competition and our conversations section, which invites ongoing dialogue on important legal questions. the winner of our student writing competition is aidan seymour-butler. we are pleased to have students represented among our author contributors and will look to have further student writing competitions in the future. our conversations section features an article by professor aliza organick, on the value of state apologies, and what role these play in state-indigenous peoples relationships. this remains a vital issue in the twenty-first century and we invite comments in response, to foster an open and ongoing dialogue through our law journal. as always, we are grateful for the invaluable assistance of our student editors in proofing this general edition. sarah sargent james slater editors 157 the denning law journal 2017 vol 29 pp 157-162 book review being a judge in the modern world edited by jeremy cooper (oxford university press, uk, 2017) £24.99 (paperback) pp 240, isbn 9780198796602 fred motson* it is something of a modern cliché to cite the daily mail as an example of the more hysterical fringe of the mainstream press, but even by its own standards the newspaper reached new heights in the wake of the high court’s decision in r (on the application of miller and dos santos) v secretary of state for exiting the european union1. despite the rather dry constitutional point that was actually in issue (whether the executive possessed a prerogative power to leave a treaty without parliamentary approval) the mail left no doubt as to its view of the case: ‘enemies of the people’ screamed the headline, with the article going on to suggest that the claimants “had formed an 'unholy alliance' with the judiciary.”2 clearly the position of even the most senior members of the judiciary is far from the distinguished isolation of previous centuries. this increased press ‘scrutiny’ is just one of a number of topics covered by the wide-ranging ‘being a judge in the modern world’ with a list of contributors including both the lord chief justice and his predecessor, two current supreme court justices and the senior president of tribunals, it is of little surprise that this deceptively slim volume covers such a variety of issues. the link is that each chapter is the text of a speech given by its particular author on the topic of ‘being a judge in the modern world’, a lecture series organised by the judicial college. it is made clear in the editor’s introduction that each speaker would “deliver a lecture with the * visiting lecturer in law, university of buckingham. 1 [2016] ewhc 2768 (admin); [2017] 1 all er 158 and upheld by the supreme court, [2017] uksc 5; [2017] 2 wlr 583. 2 james slack, ‘enemies of the people: fury over 'out of touch' judges who have 'declared war on democracy' by defying 17.4m brexit voters and who could trigger constitutional crisis’ daily mail (london, 3 november 2016) 1. book review 158 same title, but with absolute freedom to address the issue in any way they saw fit with neither guidance nor censorship from the judicial college.”3 this was an admirable goal, but once one commences reading the substantive speeches that lack of guidance begins to feel like less of an asset. it is certainly true that the modern judge faces a considerable number of pressures, some of which are novel and some more familiar which are exacerbated by changes in both the legal system and in society as a whole. some of the chapters provide thought-provoking examples: such as the judge who made the mistake of copying and pasting counsel’s written submissions into his judgment;4 or the availability of access to justice in an age of austerity.5 this wider focus is perhaps most notable in contributions from non-judicial figures, such as baroness chakrabarti cbe and alan rusbridger. there is a commendable emphasis on the reality of the judge’s position in the modern world and the book makes a persuasive argument that such a position is beset by challenges on all sides. we are told by various contributors that judges are misunderstood by the public and stereotyped by the press, that their decisions are exploited by grasping politicians and they are themselves often ignored or unrepresented by the other branches of government. it is easy to sympathise with, to borrow the title of joshua rozenberg’s chapter, the ‘embattled judge’. as observed by the current lord chief justice thomas, the average journalist (and by implication man on the clapham omnibus) imagines a judge spending his lunch adjournment “at his inn consuming port and stilton…[when] the actuality [is] that he had been working on the judgment he was about to give and eating a sandwich in his room”.6 a theme which runs through a number of the chapters is what should be expected from our judges in this “modern world”. many of the contributors line up to decry the traditional view of the outdated “crusty old buffer”7 and judges are repeatedly exhorted to “engage” with justice and the modern world. yet in just as many chapters, and often from the same writers, there are dire warnings of the dangers of the judge who overuses social media, or that we live in an age of bloggers and ‘fake news’. some 3 jeremy cooper, ‘introduction’ in jeremy cooper (ed), being a judge in the modern world (oup 2017). 4see joshua rozenberg qc, ‘the embattled judge’ in jeremy cooper (ed), being a judge in the modern world (oup 2017) 53. 5 lord justice ryder, ‘the modernization of access to justice in times of austerity’ in jeremy cooper (ed), being a judge in the modern world (oup 2017). 6 lord thomas of cwmgiedd, ‘reflections of a serving lord chief justice’ in jeremy cooper (ed), being a judge in the modern world (oup 2017) 25. 7 ibid. the denning law journal 159 of the most trenchant observations are made by lord carnwath in ‘reflections on the tribunal reform project’, who notes that on the official judicial website the two questions answered are “do judges use gavels?” and “why do people bow when they come into court?”8. it is clear from this book that many believe that, for good or ill, the judiciary has an image problem – old, outdated and staffed by elderly white men. this leads on to one of the few themes that almost all contributors at least touch on – that increased diversity on the bench is a crucial step towards a more representative and modern judiciary. the tone is set by lord judge in the first chapter who highlights both a current lack of diversity and the flaws of any approach based on ‘quotas’ or positive discrimination. this view is then questioned by baroness chakrabarti, who rather coyly refers to “bringing in people from a wider pool”9, before in the next chapter joshua rozenberg qc again warns of the demotivation that any system of preference can create. thus it continues until lady hale of richmond’s comprehensive account of the current state of diversity in the judiciary in the penultimate chapter. this is the book at its best – major figures both inside and outside the legal system expressing their (not necessarily complementary) views on the idea of judges in the modern world. at these times, it is commendable that the “absolute freedom” was practised as well as promised by the judicial college. yet this freedom is at the same time the book’s greatest weakness. that penultimate chapter referred to above can be found nestled between a very general overview by lord thomas of the position of the judiciary in wider society (including such disparate areas as devolution, the separation of powers, the relevance of the judiciary to small traders and the use of the welsh language in court) and a chapter from lord justice laws on the power of statutory interpretation. by nature any collection of the works of others will suffer from a lack of continuity, to a greater or lesser extent, but this is particularly pronounced in this volume. as already noted, in their desire for oratorical freedom, the judicial college did not provide a common starting point beyond the title of the lecture. unfortunately, the age old dichotomy between certainty and flexibility that underlies all of our law is also present here – and it could be argued that this book has got that balance wrong. mrs. justice bernard begins her lecture by asking, “what is meant by the modern world, and from 8 lord carnwath of notting hill, ‘reflections on the tribunal reform project’ in jeremy cooper (ed), being a judge in the modern world (oup 2017) 107. 9 baroness chakrabarti cbe, ‘walking the tightrope of independence’ in jeremy cooper (ed), being a judge in the modern world (oup 2017) 47. book review 160 whose perspective?”10 the answer here is clearly “the speaker’s”. it seems slightly churlish to make a criticism of inviting a broad range of opinion, and this may well have been a real strength of the lecture series (which took place across the country to different audiences). however, when collected together, it becomes unfortunately clear that most of the chapters say as much about the speaker as about their supposed theme. thus alan rusbridger dwells at length on the economics of online journalism (and even manages to sneak his “comment is free” motto into his speech); baroness chakrabarti concentrates on the iraq war, closed trials and police tactics; mrs justice bernard’s view from the caribbean is more of a view of the caribbean; lord carnwatch as senior president of tribunals speaks on, yes, tribunals; as already mentioned, it falls to the only female supreme court justice to provide a full speech on diversity issues; et cetera. no criticism is intended of the writers or their chosen subjects, nor of the judicial college and the original lecture series. however, the variety of speakers and topics makes it difficult to establish a coherent picture of what exactly it is to be a judge in the modern world. one could argue, with some justification, that this is not what was intended – the book is more of a series of vignettes which each go some way to illuminating a facet of the role of the modern judge. yet even when looked at in this wider context, there remains a disconnect between what each speaker is trying to achieve. some, such as lord carnwath and professor cooper on tribunals, take a very descriptive approach to how our legal system has changed in recent years. others, such as rozenberg and lord judge focus on what qualities the modern judge needs to succeed. then in some of the later chapters, the focus shifts again to the constitution as a whole and the judiciary’s place within it. all are interesting; all relate to judges and the modern world; but they do not relate in any but the most tangential way to what has come before. it is hard to shake the feeling that this is a book to be dipped into, or at most one which may spur the reader to inquire further into a particular field. a good example of this is the use of technology in judicial proceedings. lord judge was never renowned for his technophilia – as lord dyson said, “in a word, the it revolution has completely passed him by. surprisingly, he disputes this, but it is true. his whole family will say that it is true, even his grandchildren. it is as if the it revolution never happened. emails, no; blackberry, no; mobiles, no; ipads, no. i could go on.”11 yet his speech 10 desirée bernard, ‘a view from the caribbean’ in jeremy cooper (ed), being a judge in the modern world (oup 2017) 83. 11 lord dyson mr, ‘valedictory address for lord judge’ (london, 30 july 2013) <https://www.judiciary.gov.uk/announcements/valedictory-addresses-lordjudge/>. the denning law journal 161 contains one particularly noteworthy section which poses a fascinating question. “can we, perhaps most of all, recognise the dire danger of burying our system, our common law system, under mounds and mounds of socalled authorities, decided cases which are supposed to assist the judge by directing him or her to the relevant principle? if we could use modern technology to distil the essential principle to be applied by the court into two or three paragraphs, rather than two or three folders of so-called authorities, that would be a triumph.”12 there is so much in this chapter to discuss. is the former lord chief justice merely advocating better use of modern technology, or a far more radical reform which could involve a dramatic change to the use of legal precedent in court? what could be the effects of a system where the context and explanation of a many-paged judgment is replaced by a “two or three paragraph” summary – in other words, where centuries of legal educators exhorting students to read the case not the headnote is reversed? unfortunately, this issue is not returned to, due to the very nature of the work as a collection of independent speeches. this is far from the only example even within this one area – later lord justice ryder makes tantalising reference to online courts13 while lord thomas warns against their dangers.14perhaps it is asking too much to expect such points to be somehow naturally brought to the mind of other speakers (and it should be emphasised that it was an explicit part of the judicial college lectures that speakers would not be “briefed”) but it once more highlights the problems with collating such a disparate collection under a single heading. on this note, it would be wrong to not at least briefly mention the later chapters in the volume. two chapters are by lord thomas, two by lord justice ryder and as noted above, a chapter by baroness hale on diversity and one by lord justice laws on the power of statutory interpretation. these certainly add a more academic air to the volume, with a much greater emphasis on constitutional principles. however, it is hard not to classify them as essentially addressing “the judiciary in the modern world”, rather than “being a judge” per se. it is perhaps one of the perils of academia that one can easily develop a subject-specific view of legal writing. yet there is some merit in attempting to answer the wider question of what a book can teach the reader by asking 12 lord judge, ‘reflections of a retired lord chief justice’ in jeremy cooper (ed), being a judge in the modern world (oup 2017) 19. 13 lord justice ryder, ‘the modernization of access to justice in times of austerity’ in jeremy cooper (ed), being a judge in the modern world (oup 2017) 141. 14 lord thomas of cwmgiedd, ‘the centrality of justice’ in jeremy cooper (ed), being a judge in the modern world (oup 2017) 160. book review 162 the narrower question of “which module would i recommend this book as reading for?” the answer is, in part, many. many of the later chapters mentioned above would be extremely suitable reading for a student (or researcher) of constitutional law; discussions of the modern profession and diversity in legal skills and practice modules would be aided by chapters such as those by baroness hale and joshua rozenberg; the very specific insights as to tribunals are probably of most use to those undertaking professional courses or beginning in practice. as a coherent whole, the book does not really provide a clear picture of exactly what being a judge in the modern world entails. as a collection of distinct and separate perspectives, it has much value. thus in sum this book is much like its titular “modern world”: at times disparate, diverse and lacking in coherence; yet containing insights and issues very much worthy of further study. 9 denning law journal 2016 vol 28 special issue pp 9-15 commentary brexit and the uk oil & gas sector john c lamaster and marc hammerson abstract on 23 june 2016, the uk electorate voted in a referendum to leave the european union (eu). this outcome is expected to have far-reaching consequences for uk industry, including the oil & gas sector. these include: shortto medium-term uncertainty; potential changes to legislation affecting the downstream industry; restrictions on the free movement of goods and people; effects on the gas market; and renewed impetus for scottish independence. it is impossible at this early stage to reach any definitive conclusions regarding the consequences of brexit to the uk oil & gas industry, but this short article will discuss certain issues that are likely to be of interest and relevance. shortto medium-term uncertainty the referendum is advisory only, and there is no immediate change to the legal or regulatory regime governing the uk oil & gas industry. the formal withdrawal process will commence only upon the delivery by the uk of a notice under article 50 of the treaty of the european union. the treaty, however, does not require the uk to deliver notice within any specified time period, or at all, and the eu cannot compel the uk to do so. the shortto medium-term consequence of the referendum will create a high level of political, economic, social, commercial and legal uncertainty. this includes: when (if at all) the uk will deliver the article 50 notice and commence the formal withdrawal process; what will be the nature of the new relationship to be negotiated between the uk and the eu;  john c lamaster, partner, akin gump strauss hauer & feld llp. email: jlamaster@akingump.com. marc hammerson, partner, akin gump strauss hauer & feld llp. e-mail: mhammerson@akingump.com. this article first appeared in legal brexit published by chambers and partners in october 2016. it is reproduced with permission. http://practiceguides.chambersandpartners.com/practice-guides/legal-brexit mailto:jlamaster@akingump.com mailto:mhammerson@akingump.com http://practiceguides.chambersandpartners.com/practice-guides/legal-brexit brexit and the uk oil & gas sector 10 will brexit lead to similar instability in other eu member states; and will brexit lead to a second referendum on scottish independence? it may take years to answer these questions. in the meantime, this uncertainty is expected to have several consequences for the uk oil & gas industry. the global oil & gas industry has historically been cyclical in nature, and therefore industry participants are somewhat used to dealing with uncertainty. brexit, however, is a unique historical event, without any direct precedent to give the oil & gas industry any guidance as to what to expect. it is anticipated that investment expenditure in the uk continental shelf (ukcs) may suffer as industry participants wait for this uncertainty to be resolved. this could stop investment in new exploration and delay projects that are already planned. such additional negative business sentiment comes at a time of a record decline in the level of expenditure in the ukcs as a result of a low oil & gas price environment. current investment in the ukcs is about one-eighth of its peak. it is also anticipated that the uncertainty arising from brexit could have a negative effect on merger and acquisition (m&a) activity in the oil & gas industry. the m&a market in ukcs assets has been relatively quiet for a while, given the low oil & gas price environment and an unwillingness by buyers to assume decommissioning liabilities associated with aging infrastructure in a mature basin. an inactive m&a market leaves assets in the hands of reluctant owners. one consequence of this is that investment in the ukcs will decline at a faster rate. moreover, without an aggregate level of investment that sustains a critical mass of common-use infrastructure currently in place that can be utilized by new fields, there is a danger that future discoveries become uneconomic to develop and potential reserves are left unexploited. in other words, lack of new investment may cause the ukcs to enter a self-perpetuating cycle of decline. in the months leading up to the referendum vote, the stabilisation of oil & gas prices, albeit at a relatively low level, had given rise to hopes that m&a activity would pick up, as buyers and sellers had a firmer basis to negotiate and agree asset valuations. we wait to see whether the adverse impact on sentiment as a result of brexit reverses, or merely delays, the expected uptick in m&a activity resulting from stabilisation. markets do not like uncertainty, and an immediate consequence of brexit was market volatility, with share prices, commodity prices and exchange rates all being affected. in particular, the pound fell to a 31-year low against the us dollar. this has both good and bad consequences for the uk oil & gas industry. the denning law journal 11 international oil markets are mostly priced in us dollars. as a result, oil producers in the ukcs who have revenues in dollars but a cost base paid for in pounds (such as oil companies with bases or operations in aberdeen) will gain from the foreign exchange adjustment. however, those international participants that earn a significant portion of their revenues in pounds, such as those selling natural gas produced from the ukcs into the uk market, will find their profits devalued when pound revenue is converted into a domestic currency. in the global competition for oil industry capital, this makes the uk a less attractive environment for international investment. if the pound remains devalued then international companies may be less willing to fund new investments in the ukcs. given its age and marginality, these foreign exchange consequences could have an adverse effect on the longevity of the ukcs. it will also increase the existing trend of ukcs assets being domestically owned by companies with their cost of capital priced in pounds, rather than dollars. in the longer term, if the pound remains devalued, the uk overall, as a net importer of oil & gas, will see higher wholesale energy prices. this will eventually trickle down to end-users. the issue of consumer energy costs and the prospect of price controls, which was debated during the 2015 general election campaign, may re-surface as an issue in the next scheduled general election in 2020. any political reaction to higher consumer costs could result in a more interventionist approach being imposed on the uk’s “big 6” energy suppliers. a similar issue, but in respect of the adverse consequences to uk industry and manufacturing of high energy prices, is discussed below. oil & gas legislation from a legislative standpoint, the immediate impact of brexit on the uk oil & gas industry is expected to be minimal. despite the referendum, the uk is still in the eu, at least until the uk delivers the article 50 notice to commence the formal withdrawal process and the mandatory two-year negotiation period is completed. as a result, there is no immediate change to the legal or regulatory regime applicable to the uk oil & gas industry. even when such negotiation period ends, the legislative regime governing upstream uk oil & gas is unlikely to change. most laws derive from domestic policies, such as the current petroleum act, and international agreements to which the uk is a party, such as the united nations convention on the law of the sea. the taxation, licensing and regulatory regime for the upstream industry are all set by uk law and will not change as a result of brexit. eu law does not have a significant effect on the upstream industry, other than through laws of general application such as brexit and the uk oil & gas sector 12 competition, environmental and employment. any changes in uk upstream are far more likely to result from a leave vote in any scottish independence referendum. in this regard, the political division created between scotland and england as a result of the different voting patterns on the eu between the two countries may, in the future, have indirect consequences for the upstream industry. this is discussed below. there could, in contrast, be greater medium-term impact on the downstream oil & gas sector. the uk is a net importer of gas and refined oil, with significant amounts coming from the eu and norway. the uk also exports oil products to the eu. the two-way nature of these flows makes it essential that arrangements are put in place that avoid tariffs on energy. this outcome will depend on whether the uk negotiates to remain in the single market or, if this is not the case, the negotiated position between the uk and eu relating to tariffs on trade in energy. any agreement that allows tariffs or other barriers on the trade in energy is likely to have significant consequences for both the uk and eu. if brexit results in the removal of eu competition laws, then the uk may have some leeway to promulgate laws and regulations that could benefit the downstream industry, such as allowing additional state support of industry during periods of oil price volatility. this could allow a government to take a more interventionist approach to energy and industrial policy. this could be promoted as both a benefit for consumers and also commercial users of energy (such as the uk’s distressed steel industry which has pointed to high energy costs as one of the causes of its current distress). in the longer term, if eu and uk laws begin to diverge in material respects, oil & gas industry participants will have the additional cost and administrative burden of complying with two legal regimes. this could put the uk at a disadvantage in attracting new investment from european oil & gas companies, which are currently active participants in the uk’s downstream sector. overall, the direct effect of brexit on upstream is likely to be minimal and the effect on downstream will be felt, if at all, only over the medium to long-term. therefore we do not anticipate resulting regulatory changes will create a significant impact on the oil & gas industry. in this respect, the industry should continue to enjoy a period of regulatory stability that should hopefully foster long-term investment in the industry. this benefit may be seen as a counter-weight to the other negative factors identified. the denning law journal 13 free movement of goods and people a fundamental principle of the eu’s single market is the free movement of goods and people. european officials have stated that the uk will not be able to retain access to the single market unless it agrees to continue to permit the free movement of people. restricting immigration was a fundamental plank in the leave campaign’s platform, so it is currently difficult to see how the uk can reconcile the political sentiment expressed by the electorate during the referendum campaign with the eu’s fundamental principle that members of the single market must allow free movement of people. the oil & gas industry requires highly-skilled people and a flexible workforce that can be moved efficiently and quickly from project to project. the industry already has a skills shortage and a relatively aged workforce. it would be a burden to the industry if european expatriates could not work in the uk, and if uk expatriates could not work in the eu, without visas, work permits or other administrative restrictions. the burdens placed on industry will depend on whether the uk remains in the single market or, if not, the manner in which this issue is dealt with in the uk’s exit terms. restrictions on the free movement of goods would likely manifest themselves as tariffs. this could affect the uk’s imports of gas and of refined oil from the eu, as well as the uk’s exports of oil products to the eu. if these are imposed this would have a significant effect on the uk’s downand midstream industries – not least because of the uk’s reliance on imported natural gas. effects on the gas market the uk produces approximately 44% of its domestic gas requirements. as a result, the uk is a net importer of gas. it is anticipated that by 2020 the uk will import 70% of its gas requirements. the vast majority of imported gas is piped from europe. a small proportion is shipped in the form of liquefied natural gas (lng) and then re-gassified at a uk import terminal. the long-term result of brexit may be to reduce the uk’s reliance on piped gas from europe and instead look to lng supplies from the recently-opened united states export market (as well as other more traditional non-european shippers of lng such as qatar, trinidad and nigeria). lng, like oil, is a tradable commodity which will be sold to whichever buyer offers the highest price net of indirect costs (such as tariffs). historically, because (in part) of the trade in natural gas between the uk and europe, there has been minimal pricing differences between the price at the uk’s national balancing point (nbp) and european pricing brexit and the uk oil & gas sector 14 points. however, if trade in natural gas between the uk and europe is impeded and balancing between different european grids is impeded, future pricing differentials may emerge. the degree to which the uk moves away from the eu on trade in energy will determine the size of schism that may open up between the two markets. the degree to which the uk is able to negotiate tariff-free trade agreements with countries that supply lng will determine the potential for the uk’s further reliance on gas which is shipped rather than piped. brexit may also accelerate a move towards a different european pricing point for natural gas. the nbp gas trading hub is priced in pounds (with gas contracts traded in pence per therm). the dutch ttf gas trading hub is a euro-denominated market (with gas contracts traded in euro/mwh). the nbp has traditionally had the highest liquidity in europe. however, 2015 saw a change to the ttf having the highest liquidity. it seems that following brexit the shift towards ttf will be accelerated, a trend that was already starting to develop in part due to the fact that the majority of gas trading in europe is denominated in euros rather than pounds. for european companies without uk links, trading at the ttf can avoid additional currency risk exposure. the move by european traders away from nbp has occurred over recent years and looks set to continue. second scottish independence referendum although the uk overall voted for brexit, the majority in scotland voted to remain in the eu. as a result, nicola sturgeon of the scottish national party (snp) was quoted as saying that a second scottish independence referendum was “highly likely” because it was “democratically unacceptable” that scotland faced the prospect of being taken out of the eu against its will. if the uk is broken up into its constituent countries, the majority of the ukcs’s oil & gas fields will fall within the exclusive economic zone belonging to scotland. the uncertainty created by brexit would be intensified by a second scottish independence referendum. this would have several knock-on effects, including the likely dampening of further investment in, and m&a activity involving, the ukcs. an independent scottish government is likely to take a more active approach to managing ukcs production. the snp, a key proponent of independence and the current governing party in the scottish parliament, has promised tax measures to improve exploration and investments and an active policy to ensure that premature cessation of production is avoided. at the same time, it is keen to promote an active industry in decommissioning dis-used infrastructure. the denning law journal 15 it remains to be seen whether a second scottish independence referendum is a realistic possibility. the last referendum resulted in a clear “remain” vote. furthermore, the economics underlying the last referendum were based on an oil price of over $100, and the snp’s plans for an independent nation with a norwegian-style sovereign energy fund does not seem feasible in the current low oil & gas price environment. also, european officials so far have been cool at best to scotland’s suggestions that it wants to leave the uk and join the eu. conclusion it is impossible at this early date to reach any definitive conclusions regarding the consequences of brexit to the uk oil & gas industry. the only certainty is that there will be uncertainty at least in the short and medium term. hopefully we will look back in a few years and realise that leaving the eu has created a more prosperous and competitive uk oil & gas industry. for the time-being, however, it is too early to say. lord denning: christian advocate and judge the rt. hon. lord edmund-davies*' january 23, 1899, is a date assured of a permanent place in english legal history. for it was the day on which, above his father's draper's shop in the then small hampshire town of whitchurch, there was born one destined to playa paramount part in the development of english common law. by today no lawyer and few laymen can fail to know at least the salient facts in the life-history of alfred thompson ('tom') denning, baron denning of whitchurch in the county of hampshire, to give him the full title. it is a thrilling tale of the ascent from comparatively humble origins of one destined to occupy an imperishable place in the ever-unrolling tapestry of the law, a man whose gifts of character and intellect are such that people like myself are proud to be able to say, "i have sat and worked alongside tom denning on the bench and i count that as a privilege beyond all price." the milestones in his life are memorable. educated locally and then as a scholarship boy at andover grammar school, he went on to secure first-class honours at oxford, originally in mathematics and then, a mere year later, in jurisprudence. after active service in france in the 1914-18 great war, he was called to the bar in 1923 and became a king's counsel in 1938. he was appointed a high court judge in 1944 at the early age of 45, was elevated to the court of appeal in 1948, and went to the house of lords in 1957. but in 1962 he returned to the court of appeal as master of the rolls, and he has occupied that august office ever since. it is a stirring story of the recognition and rewarding of sheer merit. but my purpose is to reveal something of the man behind the bald record, and thereby to demonstrate that the mainspring of his life has been his firm belief in the christian religion and his courageous application of christian principles to the task in hand. like most good stories, it all began in his childhood in hampshire, with the family's established practice of regular churchgoing, and leading on in later life to service as a churchwarden and member of the parishional church council. the familiarity with biblical texts which he acquired at an early age did much to form and, indeed, to transform his style of speaking, so that in later life his judgments "'lord of appeal. the substance of this article was first published in [1981] christiarl legal society quarterly. 41 the denning law journal and addresses have (like most parts of the new testament) consisted of sentences of remarkable clarity and brevity, frequently declining to recognise any need for an accompanying verb. early habits die hard, and denning's christian creed remains the dynamic of his life. for many years he has been president of the lawyers' christian fellowship of the united kingdom, and in his address delivered at the annual service in the temple church in october, 1977, he recalled words he had first publicly used a quarter-century earlier. they reveal an attitude which, as i believe, constitutes the bedrock of his christian philosophy and practice. speaking of the ten commandments he said: "this intermingling of religious, moral and legal precepts was typical of early society. but now these precepts have become severed. this severance has gone much too far. they say law governs one's dealing with one's fellows, religion concerns one's dealings with god, but the two are quite separate. likewise they say the law has nothing to do with morality. it lays down rigid rules which must be obeyed without questioning whether they are right or wrong. its function is to keep order, not to do justice. the severance has, i think, gone too far. although religion, law and morals can be separated, they are nevertheless still very much dependent on each other. without religion there can be no morality: and without morality there can be no law." for lord denning, law is (or should be) synonymous with justice, and it is with the doing of justice (as he sees it) that for nearly 40 years on the bench he has dedicated himself. to quote myoid friend, francis cowper, "his eyes are on the future, but his feet stand firmly in the ancient certainties of morality and true religion. they set the standard of the principles of justice to which it is his self-imposed task to mould the law ... times change; new diseases attack individuals and the body politic, and denning is not the doctor to treat the afflicted patients with old prescriptions out of old bottles." he has never restricted himself simply to ascertaining what is the law relevant to the particular facts and then blandly applying it. for ifhe regards the existing law as unjust he will do his utmost to discard it and substitute something better. and so he wrote in the preface to his 1979 work, discipline in the law: "i use the word [discipline] in the sense given in the shorter oxford diaionary of 'instruction imparted to disciples or scholars'. but i have no disciples, and scholars are few. yet i use the word so as to show that i wish to impart instruction instruction, that is, in the principles of the law as they have been, as they are, and as they should be ... like the centurion in the gospel, 'i also am a man set under authority' (luke 7:8). restless under authority, irked by it when i feel it to be wrong nevertheless it is my duty to abide by it unless i can persuade my brethren that it is working injustice. then when authority is shown to be wrong, the time will come when it will be overthrown: or at any 42 lord denning: christian advocate and judge rate it should be. if not by the judges, then by parliament at the instance of the law commission. where i have failed they may succeed." holding this view of the judicial role, it is a natural corollary that lord denning has always imposed the highest standards of conduct upon members of the legal profession, both inside court and out. here are the opening words of one of his early addresses ("the honest lawyer"): "if there is one thing more important than any other in a lawyer it is that he should be honest. he must be honest with his clients. he must be honest with his opponent. he must be honest with the court. above all, he must be honest with himself. this was, you may remember, the precept given by polonius to laertes: 'this above all: to thine own self be true. and it must follow as the night the day, thou canst not then be false to any man'." denning's refusal to apply laws which he regards as out-moded and unjust has been unremitting and relentless. at times it has led to unfortunate clashes with some of his judicial brethren who, though no less dedicated to doing justice than he, have felt compelled to apply the established law, even though they have strongly disliked it and openly criticised it and pleaded for parliament to amend it speedily. perhaps the clearest example of this clash arises from their differing attitudes to the task of interpreting acts of parliament. not for denning a mere literal interpretation, for (as he reminds us) "the letter killeth, but the spirit giveth life" (ii corinthians, 3,6). for him the judge's task is to find out the intention of parliament. he accepts that, in doing this, you must naturally start with the words used in the statute. but, he insists, "you don '[ end with them as some people seem to think. you must discover the meaning of the words ... judges are too often inclined to fold their hands and blame the legislature, when they really ought to set to work to give the words a reasonable meaning, even if this does involve a departure from the letter of them. by so acting they are more likely to find the truth." but finding what is the truth in the context of statutory interpretation can confront the most zealous judge with grievous problems. sometimes his sworn duty to "do right by all manner of people after the laws and usages of this realm" puts the judge in grave difficulty, for certain of those laws and usages may be repugnant to him. he can meet that unfortunate situation in one of two ways. first, when the law appears clear, he can shrug his shoulders, bow to what he regards as the inevitable, and apply it. if he has intellectual and moral twinges in doing so, he can always invoke lord chancellor simonds, who said in 1962: "to me, heterodoxy, or as some might say, heresy is not the more attractive because it is dignified by the name of reform. nor will i easily be led by an undiscerning zeal for some. abstract kind of justice to ignore our first duty, which is to administer justice according to law, the law which is established for us by act of parliament or the binding authority of precedent." 43 the denning law journal alternatively, a judge can be bold and deliberately set out to make new law ifhe thinks the existing legal situation is unsatisfactory. but he risks trouble if he goes about it too bluntly. and sometimes the law, being declared in statutory form, is too much for him, dislike it though he may. in the first year of the 18th century, chief justice holt said, "an act of parliament can do no wrong, though it may do several things that look pretty odd", and judges have long been chafed by this undoubted supremacy of parliament, whose most questionable enactments must be applied. faced by so unfortunate a situation, they must do the best they can. they may, for example, find it possible to hold that some other and fairer construction of a statute is conceivable. if so, they seize upon that more attractive construction with as near an approach to gaiety as is seemly in a judge. if, perchance, there is a lacuna in a statute, they may decide to follow the trail blazed by lord denning, who declared over 30 years ago: "when a defect appears, a judge cannot simply fold his hands and blame the draftsman. he must set to work on the constructive task of finding the intention of parliament ... a judge should ask himself the question: if the makers of the act had themselves come across this ruck in the texture of it, how would they have straightened it out? he must do as they would have done. a judge must not alter the materials of which it is woven, but he can and should iron out the creases." nevertheless, a judge who follows that advice runs the risk of being gravely censured, as lord denning himself was, lord simonds saying: "the duty of the court is to interpret the words that the legislature has used: those words may be ambiguous, but, even if they are, the power and duty of the court to travel outside them on a voyage of discovery are strictly limited ... if a gap is disclosed, the remedy lies in an amending act." but lord denning remained unrepentant, and 20 years later he retorted by saying in the court of appeal, "we do not now in this court stick to the letter of a statute. we go by its true intent. we fill in the gaps." whatever view the reader may take about such gap-filling (and there is room for widely differing opinions even among righteous men), lord denning has scant respect even for long-established law if he thinks its application would lead to an unjust result in the particular case. for to him justice is far preferable to mere conformity, even though the "just" decision may introduce great uncertainty into the law. holding in 1954 that the relevant statute enabled the court to order a husband to pay maintenance for his child born before marriage, and refusing to follow an earlier decision to the opposite effect, he said: "what is the argument on the other side? only this, that no case has been found in which it has been done before. that argument does not appeal to me in the least. if we never do anything which has not been done before, we shall 44 lord denning: christian advocate and judge never get anywhere. the law will stand still whilst the rest of the world goes on: and that will be bad for both." not surprisingly, denning has frequendy been rebuked in the house of lords. but his mettle is such that, though he must naturally dislike such experiences, in no way have they dismayed him. and, to gain his point, he has never hesitated to seek a wider audience for his views. opposing what he regarded as merely slavish adherence to precedent, he went off to oxford in 1959 and delivered in his romanes lecture weighty blows upon the doctrine that even the house of lords was bound by precedent. he said: "if lawyers hold to their precedents too closely, forgetful of the fundamental principles of truth and justice which they should serve, they may find the whole edifice comes tumbling about them." and, echoing mr justice jackson, he continued: "the common law will cease to grow. like a coral reef, it will become a structure offossils ... the house of lords is more than another court oflaw. it is more than another court of appeal. it is the court of parliament itself. it acts for the queen as the fountain of justice in our land. it lays down ... the fundamental principles of the law to govern the people; and, whilst adhering firmly to these principles, it should overrule particular precedents that it finds to be at variance therewith." his words went unheeded at the time. but not for long, for they paved the way leading to the important statement of 1966, in which the house of lords announced their intention" ... to modify their present practice and, while treating former decisions of this house as formally binding, to depart from a previous decision when it proves right to do so." it was a mighty victory. but not as great as lord denning would have liked, since it has been held that in all united kingdom courts below the house of lords the binding force of precedents still prevails in full vigour. even so, it has had an important effect in freeing the house of lords from the shackles of the past and has enabled them to do justice in several cases, regardless of previous holdings which would otherwise have prevented them from adopting what they regarded as a proper and preferable course. were i asked to identify the hall-mark of lord denning's application of christian principles in his judicial work, i should point to his passionate and persistent respect for the individual. and the more the individual lacks the trapping of material power and worldly status, the more doughty is the support which denning extends to him. his manifestly genuine liking of most of the people he meets daily in his busy life is reflected in his instinctive attitude in human relationships. and to see and hear him in his court of a monday morning, dealing with lay litigants, is wondrous to behold. if they appear bewildered (as they often do), he proceeds with ineffable courtesy and tact to put them at their ease; with 45 the denning law journal unrivalled patience he extracts the gist of their grievances; and with consummate ,skill he disposes of their case in such a manner that even the unsuccessful litigant has no proper cause for complaint that he has not been fully and fairly heard. but denning is perhaps at his best in the company of young people, for, without being in the slightest degree "trendy", he has a quality of youthfulness which puts them at their ease and wins their unfailing allegiance. and, despite his high position and massive learning, i doubt that a less pompous man ever lived. time and again denning has recalled the second commandment's insistence that we love our neighbour as ourselves. and he has consistently given "neighbour" the widest connotation. he revelled in the famous words of lord atkin 50 years ago in the "snail in the bottle case" i: "the rule that you are to love your neighbour becomes in law that you must not injure your neighbour: and the lawyer's question 'who is my neighbour?' receives a restricted reply. you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neigpbour. who then in law is my neighbour? the answer seems to be persons who aie so closely and directly affected by my acts that i ought reasonably to have them in contemplation as being so affected when i am directing my mind to the acts or omissions which are called in question." lord denning rightly regarded it as significant that lord atkin drew his principles of justice from the christian commandment of love, and commented: "i do not know where else he is to find them. some people speak of natural justice as though it was a thing well recognisable by anyone, whatever his training and upbringing. but the common law of england has been moulded for centuries by judges who have been brought up in the christian faith. the precepts of religion have been their guide in the administration of justice." denning began his long career on the bench as a divorce judge, and he hated it. fortunately, his servitude lasted only 18 months before he became a king's bench judge. but even so short a period was sufficient to bring home to him many deficiencies in our matrimonial law. and this undoubtedly propelled him later to achieve massive improvements in relation to such complex problems as the deserted wife's equity and her share in the matrimonial home. in matrimonial cases the "neighbour" relationship is obvious. but lord denning has been quick to point out that it is a relationship which has spacious dimensions. it is of fundamental importance in a wide variety of cases. time and again he has reverted to it when dealing with industrial injuries claims brought by workmen against their employers. and it is the basis of many of his decisions arising from the alleged misuse of ministerial powers, and in cases concerning departure from natural justice, cases about unfair discrimination on grounds of i. donoghue v. sit:t'n/son [19321 a.c.562, 580. 46 lord denning: christian advocate and judge race, religion or sex, cases involving the interpretation of exemption clauses in contracts, and in his many decisions which completely transformed the pension rights of ex-servicemen. the catalogue is indeed as long as it is impressive. even so, it amounts to no more than a bald and inadequate guide to the lifework of a man dedicated from childhood to do justice between all people, "without fear or favour, affection or ill will." and that lifework has without doubt been directed and inspired by the christian faith in which he was nurtured and of which he has been an ever-steadfast and passionate advocate. as his score of years (1962-1982) as master of the rolls drew to a close, lord denning acquired and continued the habit of writing a book a year. here they are, with their titles and dates of publication: the discipline of the law (1979); the due process of law (1980); the family story (1981); what's next in the law? (1982) the closing chapter (1983); and landmarks in the law (1984). the title of each suggests that it contains his last words, but his apparently complete recovery from somewhat ailing health has enabled him, now in his 87th year, to continue his vigour, his crusade for law reform. in the recent words of francis cowper, editor the graya, the house magazine of gray's inn, of which lord denning is, naturally, an honorary bencher: "off the bench he can no longer indulge in his favourite sport of tug-of-war with the house of lords. instead, he has joined the lords in their legislative capacity, and is able to make his voice heard in the discussion of acts of parliament, expressing the convictions and propounding the principles which he has always upheld in his judicial capacity. he has only changed his field of action." let me end this inadequate tribute to a great man with whom i have been vastly privileged to work by quoting the concluding words of one of his early published works: "what does it all come to? surely this, that if we seek truth and justice, we cannot find it by argument and debate, nor by reading and thinking, but only by the maintenance of true religion and virtue. religion concerns the spirit in man whereby he is able to recognise what is truth and what is justice; whereas law is only the application, however imperfectly, of truth and justice in our everyday affairs. if religion perishes in the land, truth and justice will also. we have already strayed too far from the faith of our fathers. let us return to it, for it is the only thing that can save us." 2 2. the challgirlg law, 1953. 47 for the purposes of right to self-determination, how does one define people in context of kashmir 337 the denning law journal 2014 vol 26 pp 337-345 book review human dignity and fundamental rights in south africa and ireland anne hughes (pretoria university law press, south africa 2014) isbn 978–1–920538–21–7 rule of law reform and development – charting the fragile path of progress michael j trebilcock and ronald j daniel (edward elgar publishing inc, cheltenham, uk/northampton, ma, usa 2008) isbn–13–978–1848447103 dr jocelynne a scutt  these two scholarly and accessible works stand in their own right, whilst being complementary. each affirms and expands on what magna carta is believed to embody. they engage with the struggle to ensure that law is a living branch of learning and praxis, advancing not only notions of rights but fixing them firmly into the interstices not only of legal decision–making, but throughout the legal systems they address and the societies thereby regulated. rule of law is the more straightforward of the two. human dignity and fundamental rights is more complex. yet both acknowledge the vital importance of law and justice as the basis of a good, decent and just society. each questions how best this can be achieved. michael j trebilcock and ronald j daniels commence by discussing and analysing “rule of law” and its role – and potential role – in development. chapter 1 “the relationship of the rule of law to development” sets the scene. the authors note the difficulty of determining what comes first – a “good” legal system leading to positive economic and social development, or positive economic and social development generating a “good” legal system. they reflect upon the difficulty of fixing precisely what is meant by “rule of law”, quoting rachel kleinfeld‟s proposition that it has many meanings, with different meanings for different people and societies, and matthew stephenson‟s observation that “rule of law” “means whatever one wants it to mean”, a phrase that when used in the context of development ensures project  the hon dr jocelynne a scutt, barrister and human rights lawyer, victorian bar/inner temple, visiting professor and senior teaching fellow, university of buckingham, hunter street, buckingham mk18 1eg. book review 338 finance from the world bank, united nations (un), international monetary fund (imf), or private foundations. a “thick” conception of rule of law encompasses notions of democracy and liberty, incorporating friedrich hayek‟s idea of its importing “universal moral principles” inherently “liberal in character”, whilst a “thin” conception limits it to “those few spare features common to most, though not all, legal systems”. the authors settle on a “thinner” conception of the rule of law, seeing rule of law “as both a set of ideals and an institutional framework”, comprising “elements of … „formal‟ and, „substantive‟ theories …” next, they look at impediments to rule of law reform, including resources (it is here that their chapter on tax administration is vital), social–cultural–historical factors, and political economy–based obstacles (vested interests clashing with ineffective political demand for reforms). having set themselves a challenging brief – they address the “developing world” of asia, africa, latin america and eastern europe – trebilcock and daniels outline a “cluster of features” making up a rule of law “minimally compatible” with “divergent theories of development”:  process values – transparency in law making and adjudicative functions, predictability, stability and enforceability;  institutional values – incorporating judicial independence and professional independence of law enforcement officials including prosecutors and police, lawyers – including public defenders, and legal educational institutions;  legitimacy values – “capacity [for institutions] to engender … obedience and respect”, or “justification for the exercise of authority” and a “broad empirically determined societal acceptance of the system. this in turn sets the scene for the following chapters (2–9):  the judiciary – looking at normative benchmarks, experience with judicial reforms, and conclusions as to success, partial success, or failure;  police – covering normative benchmarks, experience with police reforms, and (similarly) conclusions;  prosecution – addressing normative benchmarks, experience with prosecutorial reforms and (again) conclusions;  correctional institutions – looking at normative benchmarks, experience with corrections reform and (once more) conclusions; the denning law journal 339  tax administration – what are the normative benchmarks, what of experience with reforms in tax administration, and what conclusions can be drawn;  access to justice – here, a normative framework, experience with access to justice reforms, and (following on) conclusions;  legal education – its normative benchmarks, experience with legal education reforms, and conclusions as to success, partial success, or failure;  professional regulation – addressing normative benchmarks, experience with professional regulation reforms, and conclusions as to these efforts. the concluding chapter reviews empirical evidence, looks at “stylized political formations, options for the international community, and reform strategies in political context” – all under the title “rethinking rule of law reform strategies”. this is an ambitious book, generally meeting its goal well. providing a backdrop against which the information and analysis in the following chapters can be measured or at least considered, it sets out in an appendix to chapter 1 statistics relevant to “rule of law” for named “developing” and “developed” countries:  world bank rule of law indicators for 1996 and 2002;  freedom house “freedom ratings” for 2004;  transparency international “corruption perceptions index for 2004. as an example of the book‟s scope, chapter 2 – “the judiciary” acknowledges the “tension between the importance of reform on the one hand, and the plurality of approaches to judging on the other”. judicial reform “as a necessary part of the rule of law reform” is the subject of considerable emphasis by “leading development theorists” (referencing amartya sen at the 2000 world bank legal conference in washington, dc), and is “reflected prominently in international consensus” (citing 1985 un “basic principles on the independence of the judiciary” adopted at the 7 th congress on prevention of crime and torture and endorsed by the general assembly), yet “it remains difficult, if not impossible, to identify an accepted gold standard of the judiciary” (referencing jeremy waldron‟s “moral truth and judicial review”). the chapter reflects on normative benchmarks, then identifies judicial reforms, their operation and prospects in latin america – argentina, el salvador, peru, costa book review 340 rica, the dominican republic, chile, noting that similar criminal procedure reforms have been sponsored by usaid “throughout latin america, including guatemala, bolivia, honduras, … ecuador, colombia, nicaragua, venezuela … and mexico …”; considers central and eastern europe – russia, ukraine, poland, belarus, hungary; africa – botswana, cameroon, kenya, tanzania, liberia, malawi, ethiopia, mozambique, mali, uganda; and asia – china, the philippines, korea, cambodia, viet nam and singapore. it concludes by addressing impediments to “the realization of an independent, yet accountable and legitimate, judicial branch”. obstacles “come in a variety of forms” – including “levers of influence” at various levels, threats to accountability, resource constraints, and impact of cultural, historical and social values. as an example, close historical relationships between executive and judicial branches “can hamper the development of popular legitimacy”, the public remaining “sceptical of the judiciary as a site for fair dispute resolution”. a solution could be creating alternative dispute resolution forums to break with a judicial culture inimical to rule of law reform. subsequent chapters follow the same pattern and generally have a similar country–scope. it is only towards the last chapters: access to justice and legal education – that there seems not quite the same breadth of countries considered. this is a small criticism, however, in light of the authors‟ substantial undertaking. in addition to providing a significant degree of information about a range of countries in each of the areas pinpointed as “developing”, there is analysis of the impact of the methods undertaken and future prospects, together with indications as to why and how different approaches might be implemented. the book is easy to read and fascinating in its insights and reach. anyone working in the field of development and those teaching law students from a range of countries, as well as those keen to contribute usefully to development would be well advised to read and retain this book as a reference work. anne hughes‟ human dignity and fundamental rights is a tour de force. as with rule of law reform the scope of the work is substantial. hughes addresses “dignity” in the context of the irish and south african constitutions, as well referencing cases from “developed” and “developing” countries, some of which feature in rule of law reform. to read the cases and outcomes from argentina, botswana, the gambia, ghana, hungary, india, kenya, latvia, lesotho, malawi, malaysia, namibia, nigeria, seychelles, south africa, swaziland, tanzania, uganda, zambia and zimbabwe provides insights that are unlikely to be gleaned from any other single work, whilst against the backdrop of rule of law reform simultaneously supplies an added dimension to the scholarship and conclusions reached by trebilcock and daniels. human the denning law journal 341 dignity and fundamental rights also highlights how a “developing” country can not only renounce constructively its own dysfunctional history, but provide valuable insights and directions for countries that have prided themselves on substantiating the rule of law, too often seeing their legal systems as “superior”. in referencing case law from australia, canada, finland, france, germany, ireland, italy, aotearoa/new zealand, portugal, spain, switzerland, the united kingdom and the united states of america, as well as again presenting material unlikely to be found in any other single source, human dignity and fundamental rights illustrates well how assumed superiority is so often misplaced. hughes‟ book begins with an introduction, “framework of study and relevance of the proposition” that “dignity” can be a valuable tool for the making of a legal system which recognises and affirms the egalitarian principles seen to be embodied in “the rule of law”. today, considering this from the perspective of a denning review in the year celebrating 800 years of magna carta is the irony that magna carta spoke for an elite – yet is now seen as the foundation of freedoms, rights, and equality for all. “dignity” in the south african constitution was incorporated from the outset to speak of the humanity of every human being, whatever her or his background, origins, race, ethnicity, sex or gender, class or status. and, as hughes points out, the irish constitution of 1937 was the first to incorporate “dignity” with this meaning. finland was earlier – but as hughes again observes, the finnish constitution‟s “dignity” was founded in class, status and a patrician concept: no notion of equality for all in its constitutional inception. human dignity and fundamental rights then moves on, chapter 2 considering “the role of dignity in contemporary jurisprudence”, followed by chapter 3 on “dignity in the south african constitution”. chapters 4 and 5 cover “the right to dignity” and “association of dignity with other rights”, whilst chapter 6 addresses “socio–economic rights” as a context for dignity and dignity rights. chapters 7 and 8 focus on ireland – “irish case law on dignity” and “remedies and scope of fundamental rights in ireland”. the book ends with chapter 9, “summary of conclusions”, as well as a substantial bibliography – 45 pages in length. apart from everything else, for this reviewer, as someone committed to human rights and their incorporation into constitutions and constitutional law, hughes‟ chapter 2 has been extraordinarily influential. the “elitist” and “classist” perspective of dignity – as in “dignified”, dignitaries, etc has troubled me whenever dignity has been advanced as an important extension of human rights discourse. hughes‟ analysis and explication of the way it has been and is employed to relate to all human book review 342 beings – with all human beings included under its umbrella and within its philosophical and practical scope – by various “equality” or “equal rights” philosophers is compelling. together with her analysis and explication of its employment by south africa, in particular, and other countries‟ courts and human rights courts (for example the european court of human rights (ehcr)), it has persuaded this (somewhat) sceptic of the importance of including dignity as an essential expression in written and unwritten constitutions. the australian constitution, for example, has no bill of rights – although attorney–general lionel murphy (later of the high court) tried … as did some of his labor successors (lionel bowen, gareth evans) although with less vigour. any campaign for changing this egregious lack should ensure that, like south africa, “dignity” is a central element, with the australian high court having it made clear that south african jurisprudence needs to be given due regard. all people are entitled to dignity and to its affirmation through the law. whether they are aware of their own dignity as human beings, or aware even of their own existence, everyone is so entitled. hughes observes that waldron (the same waldron referred to by trebilcock and daniels in rule of law reform): … suggests that the issue of how human dignity applies to infants and to the profoundly disabled can be addressed by applying the rank of equality to all humans by virtue of their unrealised potential rationality (albeit that the subject‟s rationality is evolving or may even be impossible to achieve by virtue of his or her condition). 1 she references also l‟heureux–dube j of the canadian supreme court and robins ja of the ontario court of appeal. in fleming v reid, 2 robins ja “highlighted the equal dignity of the mentally ill and the importance of their autonomy”, whilst in quebec (public curator) v syndicat national des employes de l’hospital st–ferdinand, 3 l‟heureux– dube j acknowledged that while “some mentally ill patients may have “a low level of awareness of their environment because of their mental condition”, which may influence their own conception of dignity, “an objective appreciation of dignity” prevails and there could be 1 anne hughes, human dignity and fundamental rights in south africa and ireland (pu law press 2014) 44, n 57. 2 (1991) 82 dlr (45 th ) 298. 3 [1996] 3 scr 1211 the denning law journal 343 “interference with the safeguard of their dignity” [requiring redress], despite the fact that the patients might have “no sense of modesty”. 4 chapters 4 and 5 of the book are particularly important for practising lawyers as well as academics and students of human rights. chapter 4 explains, through case law, how the south african constitution valorises, through “dignity”, the notion and practice of “equal respect”. this leads into analysis of cases addressing punishment – the corporal punishment of children and the punishment of adults; family; defamation, sexual violence; and children – through the application of the principle and practice of dignity–as–right. chapter 5 recounts the way in which the “association of dignity with other rights” advances human rights, again under the south african constitution: freedom and security, looking at persona. freedom, damages for breach of fundamental rights, and bodily and psychological integrity; fair trial and imprisonment – criminal trials and human detention conditions; privacy and autonomy – looking at common law dignitas, the scope of constitutional privacy, the rationale for privacy protection, the contextual extent of privacy, and conflicting interests; freedom of expression – its rational, exclusions from protection, and limits to protection; and equality – as to gender, marital status, sexual orientation, group identity, and comparative equality jurisprudence. chapter 6 is vital in its recognition of the crucial nature of the development of socio–economic rights, a newly burgeoning field. hughes looks here at the interpretation of economic and social rights, their enforceability, the separation of powers, the international covenant on economic, social and cultural rights – justiciability, and judicial enforcement in europe and under the african charter; “progressivity” and judicial enforcement in south africa, particularly looking at housing, healthcare, water and social security. moving to ireland, hughes emphasises that the irish judiciary “could give a deeper meaning to human dignity by seeing it in a relationship context, rather than adopting a restricted individualistic view of it”. 5 this could, she says, result in a “mutually supportive and respectful relationship” developing “between the judiciary and the executive” as has occurred in and for south africa. sadly, despite its early affirmation of “dignity” in the constitution, the irish judiciary has failed, generally, to embrace the potential for advancing human rights whether in discourse, jurisprudence or practice. as hughes says: 4 hughes (n 1). 5 hughes (n 1), xi. book review 344 the depth of philosophical assessment by the judiciary of the meaning of dignity has been shallow with a handful of expectations. frequently the courts have avoided dealing with the dignity factor at all, particularly if there is another value, right or express constitutional provision giving an answer to the problem. this attitude has prevented a holistic view of the constitution … 6 nonetheless, “a trawl of judgments does bear some fruit”. this includes an acknowledgement of the “unique value of each person irrespective of parentage” by keane j in io’t v b, albeit dissenting; 7 judicial recognition of the “human personality doctrine” in foy v an t’ard chlaraitheoir 8 by mckechnie j, observing “the right of everyone to human dignity” with each person having “the freedom to express [her or his] own personality” and recognising as essential the “need to forge one‟s own identity and the rights to self–determination and autonomy”. 9 dignity in the context of family and companionship relationships have been acknowledged by finlay, cj in ag v x 10 and in equality authority v portmarnock golf club by o‟higgins, j, the latter noting that friendships “are based on delight in others‟ company, which cannot be analysed logically”. 11 mccarthy j is recognised by hughes for his “evident humane approach” in jk v vw, 12 “where he took greater cognisance than the majority of the position of the uncommitted unmarried father” with an “evident commitment to equality” also in mckinley v minister for defence 1992], 13 a case relating to the extension to a wife of a husband‟s common law right to sue for loss of consortium and servitium . these examples – and more in this chapter (chapter 7 – “irish case– law on dignity”) are not enough, however, to overcome hughes‟ critique of the narrow focus of the irish courts and judges‟ general omission to affirm “dignity”. she concludes that the irish judiciary would be well– advised to pay attention to the decisions of south africa‟s judiciary on dignity and south african judges‟ capacity for making dignity a central focus of south african jurisprudence and practice. this call can be echoed 6 ibid, 386. 7 [1998] 2 ir 321 (sc). 8 [2002] iehc 116; [2007] iehc 40 9 hughes (n 1) 386-87. 10 [1992] iesc 1; [1992] 1 ir 1. 11 [2009] iesc 73; [2010] 1 ilrm 237, aff‟g [2005] iehc 235. 12 [1990] 2 ir 437 (sc), hughes (n 1) 377, n 16. 13 [1992] 2 ir 333 (sc), hughes (n 1), 392. the denning law journal 345 in relation to the other countries, courts and judiciaries to which human dignity and fundamental rights refers – and of course, any it does not. clearly more could be said about each of these books. apart from a sole criticism – the absence of a subject index which would be immeasurably helpful in referring to human dignity and fundamental rights – a fitting conclusion is that, just as with rule of law reform, hughes‟ book is a “must” for a range of readers. human dignity and fundamental rights should be read and retained for reference by all working in the field of human rights and the law or contemplating entering it – and not only lawyers. bearing the promise of magna carta in mind and 800 years of the struggle for law and rights to have meaning and be meaningful, it is essential reading for judges who, taking their job seriously, wish to become more attuned to rights discourse and the way their power may be exercised far more responsibly in pursuit of “law as justice” and legal decision–making. 131 the denning law journal 2017 vol 29 pp 131-139 case commentary parliamentary privilege in r v white (lord hanningfield) 2016 all equal before the law? murdoch thomson* i. introduction enshrined within the bill of rights of 1689, parliamentary privilege continues to act as a guarantor of democracy and parliamentary supremacy, by providing a shield from unwarranted interference from the executive, the courts and others. central to the constitutional arrangement of the united kingdom, the functions and works of parliament is of paramount importance. parliamentarians, including members of the house of commons and the house of lords, when conducting public duties must be safeguarded to ensure the discharge of such parliamentary business is conducted to the highest possible standard without fear or favour but with professional integrity. freedom of speech and exclusive cognisance are referred as the two broad categories of privilege1 applicable to parliamentarians, both of which promote the freedom of parliament. as per sir edwin sandys' comments prior to the glorious revolution of 1688, “parliament is no parliament if not free”2, and article ix of the bill of rights 1689, “[that] the freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament” 3 , reflects the limitations of the crown and courts to intrude on proceedings. the 1999 joint committee on parliamentary privilege stated that exclusive cognisance “is to ensure that parliament can discharge its functions as a * llb (1st class), student of llm in international and commercial law at the university of buckingham. 1 hm government, parliamentary privilege (cm 8318, 2012) para 17. 2 mary frear keeler, ‘the committee for privileges of the house of commons 1604-10 and 1614’ (1994) 32 parliamentary history 147, 156. 3 bill of rights 1689, s ix. case commentary 132 legislative and deliberative assembly without let or hindrance”.4 privilege promotes parliamentary independence and provides practical measures to ensure the smooth continuity of the democratic process. limited case law5 reflects the successful attempts by both houses to moderate, regulate, and to discipline members, where malpractice is concerned, without the involvement of the courts. the uneasy tension concerning privilege rests within the applicability between members and non-members. where the class of non-members can be subjected to court proceedings, orders, and penalties for behaviours and acts, which if committed by a member and claimed under the elusive banner of forming parliamentary work could result in an alternative direction of justice. ii. proceeding summary of r v white6 on the 18th of july 2016, sitting in southwark crown court his honour judge alistair mccreath [honorary recorder of westminster] directed that a not guilty verdict be entered against the indictment upon the crown offering no evidence and inviting such a course. the verdict favoured lord hanningfield, dismissing allegations of financial misappropriations from the parliamentary expenses system for illegitimate purposes. it was alleged that lord hanningfield made multiple claims for the daily allowance of £300, contrary to the qualifying threshold concerning as to what constituted parliamentary work, and the location in which the parliamentary works occurred. members of the house of lords are afforded financial support and the 2013 guide to financial support for members states under section 4.1.1 “[that a] member is entitled to claim a daily allowance of £300 for each qualifying day of attendance at westminster”.7 4 joint committee on parliamentary privilege, parliamentary privilege (first report) (1998-99, hl 43-1, hc 214-1) para 241. 5 c j builton (ed), erskine may’s treaties on the law, privileges, proceedings and usage of parliament (21st edn, butterworths, 1989) 154 provides a comprehensive listing of contemporary cases concerning parliamentary privilege. 6 r v white (southwark crown court 18th july 2016) 7 house of lords ‘guide to financial support for members’ (parliament, 2013) para 4. available at <https://www.parliament.uk/documents/lords-informationoffice/2013/guide-to-financial-support-for-members-2013.pdf> accessed 3 november 2016. section 4.1.1 was reaffirmed in the 2016 edition of ‘guide to financial support for members’ (parliament, 2016) under section 4. available at <http://www.parliament.uk/documents/lords-finance-office/2016-17/guide-201617.pdf> accessed 3 november 2016. https://www.parliament.uk/documents/lords-information-office/2013/guide-to-financial-support-for-members-2013.pdf https://www.parliament.uk/documents/lords-information-office/2013/guide-to-financial-support-for-members-2013.pdf the denning law journal 133 lord hanningield made occasional claims for the daily allowance whilst only spending 40 minutes within the parliamentary estate.8 it is worth noting that lord hanningfield was previously convicted under section 17 of the theft act 19689 for false accounting and imprisoned for nine months in 2011.10 aside from the criminal proceedings, for which the defence of privilege was not successfully used, the house committee stipulated additional internal disciplinary measures. notably a prohibition from engaging in divisions, or speaking within the chamber until april 2012, when an outstanding sum of £30,000 had been repaid. in october 2013 lord hanningfield return to the house as an unaffiliated life peer, after some considerable distancing from the conservative party. however, in may 2014 lord hanningfield was suspended over expenses manipulation and was required to repay £3,300 whilst observing a house prohibition until may 2015.11 the proceedings on the 18th of july, lasting less than five hours, was primarily directed by the crown prosecution service, not by mccreath j. resulting from a last minute change of interpretation by the house of lords authorities, fundamentally addressing the impact a contested jury would exert upon parliamentary privileges, the prosecution accepted that with no new evidence to challenge the house authorities, the new interpretation 8 martin evans, ‘expense-fiddling peers to be spared criminal trials’ the daily telegraph (london, 19 july 2016) 2. 9 theft act 1968, s 17: 17 false accounting. (1) where a person dishonestly, with a view to gain for himself or another or with intent to cause loss to another,— (a) destroys, defaces, conceals or falsifies any account or any record or document made or required for any accounting purpose; or (b) in furnishing information for any purpose produces or makes use of any account, or any such record or document as aforesaid, which to his knowledge is or may be misleading, false or deceptive in a material particular; he shall, on conviction on indictment, be liable to imprisonment for a term not exceeding seven years. (2) for purposes of this section a person who makes or concurs in making in an account or other document an entry which is or may be misleading, false or deceptive in a material particular, or who omits or concurs in omitting a material particular from an account or other document, is to be treated as falsifying the account or document. 10 ‘lord hanningfield jailed for fiddling expenses’ (bbc news, 1 july 2009) <http://www.bbc.co.uk/news/uk-politics-13989329> accessed 3 november 2016. 11 ‘lord hanningfield set to be suspended over expenses breach’ (bbc news, 12 may 2014) <http://www.bbc.co.uk/news/uk-politics-27373115> accessed 3 november 2016. case commentary 134 would be respected. it is worth noting that as the case primarily concerned two central issues, “(a) whether the defendant was, in fact, undertaking the actives12 he claim[ed] to have been undertaking […], and (b) whether the defendant acted honestly […]” 13 , mccreath j earlier ruled for the jurisdiction of the courts to apply in proceedings.14 however, and on the 18th of july, mccreath j did not present a ruling rather observed how the new position of the crown precipitated a not guilty verdict being entered against the indictment. iii. exclusive cognisance often referred to as the doctrine of necessity15, sir william blackstone described exclusive cognisance as the sole jurisdiction of parliament when “whatever matter arises concerning either house of parliament, ought to be examined, discussed, and adjudged in that house to which it relates, and not elsewhere”. 16 the doctrine provides immunity from the standard application of the law to ensure parliament conducts its work effectively and independently. the privilege of immunity distorts fundamental principles of the rule of law, most notably equality before the law, and creates an imbalance between the rights for access to justice, and the requirement for parliamentary safeguards. such issues are summarised in the 2013-2014 joint committee report on parliamentary privilege: a consequence of parliament’s possession of exclusive cognisance over proceedings in parliament is that participants, both members and non-members, are not legally liable for things said or done in the course of those proceedings; nor are those outside who are 12 malcolm jack (ed), erskine may’s treaties on the law, privileges, proceedings and usage of parliament (24th edn, butterworths, 2011) 203. notably “an exhaustive definition of proceedings in parliament [can] not be achieved”. 13 jeremy johnson qc, ‘regina and lord hanningfield: observations on behalf of the house of lords authorities’ (july 2016) para 4. 14 ibid johnson (n 13) para 15 “it is [the purpose of] the courts (not parliament) to determine whether a particular issues comes within the scope of article 9 of the bill of rights”. 15 for the proposes of this case note, a discussion concerning the significant historical events facilitating the development of the doctrine has been deliberately omitted. for reference, the significant historical events begin with the period of parliamentary interference by king charles i, proceeded by the english civil war, and concludes with the restoration of the crown in 1660. 16 william blackstone, commentaries on the laws of england (1765) 58. the denning law journal 135 adversely affected by things said or done in parliament able to seek redress through the courts.17 the substantive issue concerns the limited jurisdiction of courts to moderate the powers of both parliament and government. bradlaugh v gossett18 demonstrates the refusal by the court to intervene within the internal processes of the house of commons, when the house incorrectly interpreted and applied statute law. to the detriment of mr bradlaugh19, it was held that parliament can exercise sole jurisdiction over matters pertaining “within the walls”20 and preclude the courts from interfering, irrespective of any rights granted by statute law. to this effect, a house may “practically change or practically supersede the law”21 through the actions of its members. however, this paradigm is changing in light of the supreme court decision in r v chaytor.22 it would appear that statute law and the jurisdiction of the court will be limited only when the “activities in question are core to parliament’s function as a legislative and deliberative body”. 23 this assertion signposts the emergence of clarity regarding privilege applications and a departure from the uncertainty surrounding the extent to which statute law interferes with parliament. after the decision in r v herbert24 two differing opinions emerged. the first stated that “where legislation is silent it is taken as not binding on parliament”.25 the second assumed that “law applies to parliament, without any need to explicitly state that it applies”. 26 it would appear the first opinion has been disregarded, as per lord phillips in chaytor; “there appears to have been a presumption in parliament that statute do[es] not apply to activities within 17 joint committee on parliamentary privilege, parliamentary privilege (2013-14, hl 30, hc 100) para 17. 18 [1884] 12 qbd 271. 19 ibid (n 18). mr charles bradlaugh, elected liberal member for northampton (1880-1891), was prevented from entering parliament and from taking the oath of allegiance in accordance with the parliamentary oaths act 1866. the actions of the sergeant at arms who prevented entry, reflected the religious animosity towards atheism. 20 charles gordon (ed), erskine may’s treaties on the law, privileges, proceedings and usage of parliament (20th, butterworths, 1983) 82. 21 gossett (n 18). 22 [2010] uksc 52. 23 hm government (n 1) para 216 [additional emphasis] 24 the king v graham-campbell (ex p herbert) [1935] 1 kb 594. 25 hm government (n 1) para 207. 26 ibid hm government (n 1) para 208. case commentary 136 the palace of westminster […]. that presumption is open to question”.27 the second opinion is supported in the test applied by the 1999 joint committee where exclusive cognisance is available only when “[it] is necessary today, in is present form, for the effective functioning of parliament”.28 additionally, the supreme court of canada held in canada (house of commons) v vaid29 that to assert the right of cognisance “the assembly must show that the sphere of activity for which privilege is claimed is so closely and directly connected with the fulfilment […] of their functions […] that outside interference would undermine the level of autonomy required”.30 both cases31 demonstrate that despite the doctrine of parliamentary sovereignty and the rights of absolute privilege, the courts have formulated a constraint regarding the applicability of exclusive cognisance held by each house. although the principle of judicial obedience32 to the will of parliament is currently maintained, any further court implied limitations may seriously damage parliamentary privilege, both in practice and as a concept. it is worth noting that lord denning mr in british railways board v pickin 33 viewed the function of the courts as mutually beneficial to parliament; “it is the function of the courts to see that the procedure of parliament itself is not abused, and that undue advantage is not taken of it. in so doing the court is not trespassing on the jurisdiction of parliament itself, it is acting in aid of parliament and, might i add, in aid of justice”.34 this view was rejected by the house of lords35, which stated the function of the court was only to consider and apply enactments of parliament. if such a statement made by lord denning mr was upheld, it would have challenged the independence of parliament, and eroded the fundamental articles contained within the bill of rights 1689. despite the limitations implied through the courts, other methods of curtailing privilege can be conducted with the consent of either house in 27 chaytor (n 22) para 78. 28 joint committee on parliamentary privilege (n 4) para 4. 29 [2005] 1 scr 667 30 ibid vaid (n 29) para 4. 31 despite vaid originating from the canadian supreme court the british parliament has endorsed the substantive test. see joint committee on parliamentary privilege (n 17) para 24. 32 diana woodhouse, ‘politicians and the judges: a conflict of interest’ (1996) 49 parliamentary affairs 423. 33 [1973] 1 qb 219. 34 ibid pickin (n 33). 35 [1974] wlr 208 (on appeal to the house of lords). the denning law journal 137 parliament. as held in stockdale v hansard36, each house is the principal judge of its privileges. each house may, as its own discretion, formulate legislation to limit the applicable nature of parliamentary privilege. however, both houses cannot create new privileges. the recall of mps act 2015 provides for the automatic disqualification from the house of commons if a member is “…convicted in the united kingdom for an offence and sentenced”37, for a period greater than 12 months. for the purposes of the act, parliament cannot be viewed to provide sanctuary from the law “where the conduct of a mp does not relate to proceedings in parliament”.38 whilst the act provides a limitation of privilege to members of the house of commons, the house of lords reform act 201439 provides a similar mechanisms for exclusion and expulsion40 for peers. as with all articles of legislation, successor parliaments may elect to repeal the aforementioned acts and reduce the constraints limiting privilege interpretation and application. the doctrine of parliamentary sovereignty would suggest that privilege is an inherent right of westminster, originating from the conception of the british parliamentary model. iv. reform the delicate balance between parliamentary rights and the rule of law has long been an issue discussed within the palace of westminster, the courts, and the public realm. the substantive cause for debate centralises over the extent to which the various forms of privilege can be used; the 36 [1839] 112 er 1112. 37 recall of mps act 2015 s 1(3)(a). 38 hm government (n 1) para 27. 39 dan byles, former conservative member of parliament for north warwickshire (2010-2015), proposed the various reforms in a private members bill in may 2014. as of may 2016, only four peers have been removed under the act entirely for non-attendance (house of lords reform act 2014, s 2) during proceedings. ‘four absent peers cease to be house of lords members’ (bbc news, 19 may 2016) <http://www.bbc.co.uk/news/uk-politics-36330030> accessed 3 november 2016. 40 house of lords reform act 2014, s 3: (1) a member of the house of lords who is convicted of a serious offence ceases to be a member of the house of lords. (2) a person “is convicted of a serious offence” if, and only if, the lord speaker certifies the person, while a member of the house of lords, has been— (a) convicted of a criminal offence, and (b) sentenced or ordered to be imprisoned or detained indefinitely or for more than one year. http://www.bbc.co.uk/news/uk-politics-36330030 case commentary 138 limited jurisdiction of the courts; and the inherent inequality between those who enjoy privileges and those who do not. the joint committee on parliamentary privileges has taken a proactive stance by conducting periodical reviews of privileges. the reports to both houses identifies the relevance of freedom of speech and exclusive cognisance. the committee strongly dispels any doubt that privileges are unwarranted, rather it reaffirms the necessity in relation to the effective discharge of duties required by both houses. the 1999 report suggested comprehensive codification41 with a view of providing greater clarity by codifying all aspects of parliamentary privileges. the proposed parliamentary privileges act aimed to define, amongst other issues, proceedings in parliament, parliamentary competence, and to outline the extent to which privileges could be claimed. the major disadvantage of codification is a reduction in flexibility. cited in the 2013-2014 report, “[…] privilege is a living concept […] and evolves as parliament evolves, and as the law evolves”.42 by codifying privileges, parliament would bind itself to what would quickly become an obsolete interpretation, reflecting outdated opinions and perspectives. in a green paper published in 2012, the government summarised a critical issue, “parliamentary privilege is not a widely understood concept”.43 the paper indicates that special consideration must be afforded towards any motion for reform, and reform ought not be initiated without comprehensive political support. stating that privilege “has developed over many centuries”44, it was the opinion of the government that no legislation should be introduced. indeed, the coalition government between the conservative party and the liberal democrats did not seek reform. it remains to be seen if the current conservative government will introduce legislation to clarify the applicable nature of exclusive cognisance. given the heavy legislative programme, with particular regards towards the forthcoming european union departure, reform appears unlikely. in 2014 the joint committee concluded that an exhaustive list relating to matters subject to exclusive cognisance is “impracticable and undesirable”.45 the fundamental element of parliamentary privilege is to be detached from court interference. by codifying privileges the court would assert an active role regarding interpretation and application. this would be unacceptable as parliamentary freedom would be restricted. the 41 joint committee on parliamentary privilege (n 4) para 378. 42 joint committee on parliamentary privilege (n 17) para 13. 43 hm government (n 1) para 343. 44 ibid hm government (n 1) para 343-35. 45 joint committee on parliamentary privilege (n 17) 71. the denning law journal 139 committee has made a series of recommendations46 that indicate temporal inappropriateness for serious and substantive reform. this is disappointing as the situation continues to be exacerbated by a general lack of consensus concerning the correct application of privileges. the actions of members, reaching beyond the after effects of the 2011 parliamentary expenses scandal, continue to cast doubt within the public realm regarding the appropriateness of implied immunities from the law. during the proceedings against lord hanningfield, the expedited return of a not-guilty verdict precluded a formal examination of the alleged conduct by the member in open court. a jury was not invited to consider the evidence presented by the crown, nor did the court explore the evidence collected by the metropolitan police service and other government agencies. from the application of parliamentary privilege, the trial of lord hanningfield is blatantly different from what would be expected in similar civil or criminal cases concerning financial malpractice. submissions during proceedings exclusively concerned if exclusive cognisance was applicable; such debate would unavailable for individuals not pertaining to the class of parliamentarians. aside from the trial-by-media that lord hanningfield experienced, no substantive penalty has been imposed and to date, no further public investigation has occurred. from r v white47 it is debatable if an application of parliamentary privilege is appropriate regarding financial allegations and the need to encourage transparency of both parliament and parliamentarians. therefore, in situations where public finances are concerned, it could be appropriate for the defences of privilege not to apply. the inherent value of privileges distorting the commonly held maxim of equality would appear as disproportionate in regards to repetitive malpractice and subsequent allegations. parliament, government, and the courts are not directly seeking substantial and immediate reform. it is clear that differing attitudes continue to develop as parliamentary privileges continues to evolve. these attitudes acknowledge the tension between jurisdictional limitations, historical precedents and doctrines, and the distorting effect immunities bears on the rule of law. whilst parliament and government wish to maintain their privileges, and the courts wishing for greater regulation, perhaps the status quo ought to remain. perhaps the debate to have or not to have privilege is inherent within our system of governance. perhaps an evolutionarily path of development, driven by parliament, supported by government, and questioned by the courts, is the future of parliamentary privileges. 46 ibid (n 17) for a definitive list of recommendations proposed by the joint committee. 47 white (n 6). 179 the denning law journal 2018 vol 30 special issue pp 179-187 comment road rules for our country – australia’s constitution and australia’s first peoples senator patrick dodson and graham perrett mp there was a time when most australian drivers would encounter a particular kind of defaced road sign in their travels. speeding along the national highway near the broome turn-off in western australia or dodging kangaroos on the back roads of western queensland around st george, drivers could see a sign urging them to ‘form one lane’ transmogrified by some local wit to read ‘form one planet’. graffiti on signs in a vain attempt to make them say something else can be mildly amusing but completely ineffective. however, whilst it is dangerous (and illegal) to interfere with road signs, sometimes tinkering with an original symbol can achieve something worthwhile, and substantial.  there were no bitumen roads before colonisation. roads are a symbol of colonisation in australia. a sign of development, they divided up the country into a grid of states and territories with artificial boundaries. they were designed so the colonisers could traverse large distances at a fast pace. they are a sign of western modernity – of moving forward. the colonisers built the roads and they also wrote the ‘road rules’ for the nation, the constitution.   the analogy of road rules is useful when thinking about the australian constitution. most of the road rules for our nation are found in our constitution. this foundation document ‘constituted’ the commonwealth of australia on the first of january 1901 and divides power between states and the central government – now often referred to metonym-like as ‘canberra’.  for countless generations before the current constitution was imagined, the continent of australia was subject to a complex and very different set of interlocking rules.  each area of australia was home to a distinct indigenous land holding group, who knew their territory in detail, and with a deep and ongoing connection. distinct groups were also interconnected through song-lines, stories and rituals that drew connections across the lands of first nations. in yawuru country around broome, which senator dodson calls home, this knowledge and connection has evolved over vast amounts of time into a shared understanding that connects people to place, and people to each other.  180 comment the yawuru rules, shared and understood amongst the yawuru people and respected by their neighbours such as the nyikina, existed before time began, and were shaped in the bugarigarra, what westerner’s romantically refer to as ‘the dreaming’. the bugarigarra is the time before time, but which still exists today. community, country and law is grounded in the bugarigarra, the oldest continuing and ongoing legal tradition known to humanity.  but colonisation proceeded in australia without acknowledgement of this ancient and ongoing legal heritage. the colonising forces failed to see at all that there were rules of law that determined land ownership, connection and use. instead, the insidious myth of terra nullius (land belonging to no one) allowed the colonisers to ignore the rules of the land, ignore the interconnectedness of first nations people, and proceed as if it was a case of vacant possession. the colonies were established without consultation, without consent and without compensation. new rules were forced into place over the top of the ancient rules, which remained but were ignored. the challenge for first nations people is to maintain their laws, communities, customs and ongoing connection to land within a framework of colonisation that has never rightfully acknowledged their place as the first peoples of this country, and never consulted them in the creation of the constitution.  when the six former british colonies came together (without any indigenous advice of course) they retained most of their law-making rights (as the states) but agreed to give the new commonwealth the power to make laws about some specific topics. this list of so-called ‘heads of power’ that was a piece of legislation passed by westminster can now be found in section 51 of our nation’s (the australian) constitution. if there is an inconsistency between state laws and canberra, section 109 of the constitution provides that the commonwealth law will prevail. most of the australian nation’s constitutional road rules are not well known. occasionally a section does attract some publicity – such as section 44, which forced an unforeseen number of members and senators to be expelled from the federal parliament over dual citizenship,1 but mostly the constitution is only a matter of abiding interest for academics, legal students and concerned constitutional lawyers. discussions around the constitution are not exactly seen as scintillating yarns, but sections of the constitution underpin our social institutions and social change. the powers of the constitution hold real power and should never be dismissed as merely symbolic. section 71 of our nation’s road rules created the high court. over the years, this court has gradually raised awareness of the road rules and clarified their 1 see bloch and rubenstein pp. 79–101. the denning law journal 181 meaning and interpretation. for example, in 1982 the high court heard a challenge by the queensland state government of the commonwealth’s power to enact legislation under the external affairs power contained in section 51(xxix) of the constitution.  koowarta v bjelke-petersen2 challenged the validity of the racial discrimination act 1975 (cth).  the commonwealth claimed the power to enact the racial discrimination act 1975 (cth) under the foreign affairs power, as it was legislated to give effect to  australia’s obligations under the international convention on the elimination of all forms of racial discrimination. in koowarta3 the queensland government had stopped the aboriginal land fund commission from acquiring the lease of grazing property for the use of mr koowarta and other members of a group of aboriginal people in the wik lands near aurukun in cape york, queensland.   mr koowarta had been acting in keeping with the laws and rules of his wik peoples to gain a foothold on his ancestral lands. those lands had been taken from him by the issuance of a pastoral lease over them. mr koowarta and his countrymen sought to gain access to the land by purchasing the lease of the archer river property from an american businessman who held the lease.  the queensland minister of lands in his reasons for the refusal to grant the lease said: the queensland government does not view favourably proposals to acquire large areas of additional freehold or leasehold land for development by aborigines or aboriginal groups in isolation. understandably, mr koowarta believed that such a refusal was in breach of the racial discrimination act 1975 (cth) and challenged the decision. the queensland state government contended that the racial discrimination act 1975 (cth) was outside the external affairs power of the commonwealth parliament and was invalid. it was only by a very small margin of four to three that the high court held the racial discrimination act 1975 (cth) was valid and the commonwealth did have power to overrule state laws through using the external affairs power in the constitution. belatedly then, the high court found that the commonwealth did have the right to make laws for the people of any race; it did have the power to overturn racially discriminatory actions by a state government; it could enforce international conventions against racism to which the australian nation-state had committed. 2 koowarta v bjelke-petersen [1982] hca 27, 153 clr 168, 39 alr 417. 3 ibid. 182 comment however, the decision did not recognise mr koowarta’s rights to his ancestral lands.  the rules of the road remained the same. just one year after the decision in koowarta,4 the high court once again heard a challenge to the commonwealth’s foreign affairs power in the tasmanian dams case.5 the tasmanian government wanted to construct a hydro-electric dam on the gordon river, on land that had previously been recognised as national park by the tasmanian government. however, it was later excised from the national park by specific tasmanian legislation.   the commonwealth reacted by enacting regulations in march 1983 to list the land as a world heritage conservation area. the world heritage (western tasmanian wilderness) regulations (cth) prohibited, without ministerial consent, the construction of a dam or associated works on the land. the tasmanian government claimed that the commonwealth legislation was beyond its powers and therefore invalid. the high court held by a majority of four to three that the commonwealth had validly used the external affairs power to enact legislation in order to carry out australia’s obligations under the convention concerning the protection of the world cultural and natural heritage. despite the narrow margin, the decision in the tasmanian dams case6 was significant for affirming the extent of the commonwealth power to make laws under the australian constitution. it recognised that the commonwealth could draw down from its international treaty-making powers to override the laws of a state that were inconsistent with that international commitment. it was particularly significant in respect to the commonwealth’s power to make laws in relation to our environment.  both koowarta7 and the tasmanian dams case8 involved a prickly exchange of powers between a state and the commonwealth. although ‘canberra bashing’ is almost a national pastime, the former british colonies do also occasionally voluntarily refer some of their pre-1901 powers to the commonwealth. in some cases, such as the environment protection and biodiversity conservation act 1999 (cth), there is a national agreement to define those matters that are of national significance, in which canberra will have the overriding say.  however, as the states and territories have retained their power to legislate most environmental laws, it has resulted in our country having a de-centralised 4 ibid. 5 commonwealth v tasmania [1983] hca 21, 158 clr 1. 6 ibid. 7 koowarta (n 1). 8 commonwealth v tasmania (n 4). the denning law journal 183 system and the commonwealth government role being significantly limited to those specific issues of national significance only. on a limited number of occasions, commonwealth power to legislate under the constitution has also been modified through referendums, where the parliament takes a question to the australian voters and more than half of them support the question. such proposals must also be carried in at least four of the six states.9 since 1906 australia has held 44 nation-wide referendums, spread out over nineteen different occasions.10 but it is hard to change our road rules this way: the public has only ever said ‘yes’ to eight proposals for constitutional change. although the words of our constitution were actually passed in a parliament in another country by men who didn’t belong here, the words were mostly crafted by blokes who actually did call australia home. unfortunately our nation’s birth certificate made no mention of first nations peoples and the fact they had already been here for more than 60,000 years. they were not included in the drafting sessions, nor recognised in its substance. section 127 was titled ‘aborigines not to be counted in reckoning population’ but this was amended by a 1967 public vote.11 in that significant referendum nearly 91 per cent of the voting public supported the amendment. this was a proposal with a strong moral case, no opposing campaign and clear support from both major parties in the federal parliament. these preconditions are necessary for the high bar of constitutional change to be safely hurdled.  in recent months, in canberra, the parliament has established a committee to wrestle once again with the question of indigenous recognition in the constitution. at the time of writing, this committee, which senator dodson co-chairs, is holding hearings across the kimberley and in canberra. at every hearing first nations people have puzzled over the fact that the constitution does not in any way acknowledge their prior and ongoing ownership of the land and connection to country. some simple truths are a long time in the knowing.  however, our nation’s road rules did gain another indigenous shift in 1992 through the agency of chief justice mason’s courageous high court.  mabo v queensland (no 2)12 recognised native title in australia for the first time. even though david passi, james rice and eddie mabo were meriam people from the torres strait the law changed for all australia. and that was said by some to be the end of the world as we knew it. terra nullius was found to be a lie.  9 see scutt, 121–75. 10 ibid. 11 ibid. 12 mabo v queensland (no 2) [1992] hca 23, 175 clr 1. 184 comment for the first nations who owned and managed this continent for millennia, their spiritual and cultural beliefs were accepted as real by the highest court in the land. the high court found in mabo13 that the legal doctrine of terra nullius which imported all of england’s road rules down-under did not apply equally everywhere. the fact that people had been travelling their own song-lines for around 60,000 years suddenly mattered. existing customary laws and traditional connections to land trumped the english notion of terra nullius. the ancient past prevailed despite many acts done on behalf of the sovereign and often irrespective of white people arriving in an area. some native title rights could be extinguished by governments but this process was not as automatic as previously assumed when the concept of terra nullius was thought to be impregnable and beyond question. after mabo,14 the commonwealth parliament passed native title legislation in a lengthy and hostile parliamentary session. thereafter, once traditional owners demonstrated a connection to their land they could then be involved in decisions about how best to protect it. the legislative change was one of prime minister keating’s (1991–96) practical building blocks of change and social justice.  since the second world war australia has accepted around seven million immigrants. they and their children and grandchildren now belong. they are also connected to a land that holds the oldest footprints in the world.  but we consider that there may be a simple bureaucratic procedure to make all non-indigenous australians even better belong. when the high court created the mabo15 wave it was keating who metaphorically handed out surfboards, trying to take australians all the way to our new national beach. when the high court’s decision was handed down some farmers and commentators and politicians expostulated vigorously. some like joh bjelke-petersen16 were everywhere trying to enforce the notion that the crown had had exclusive possession forever. eventually the cockies17 settled down, even after the wik flare-up18 and tim fischer’s19 calls for ‘bucketloads of extinguishment’, 13 ibid. 14 ibid. 15 ibid. 16 premier of queensland from 1968 to 1987. 17 colloquial australian for ‘farmers’. 18 wik peoples v queensland (‘pastoral leases case’) [1996] hca 40; [1996] 187 clr 1; [1996] 141 alr 129; [1996] 71 aljr 173 (23 december 1996). 19 former australian politician. served as deputy prime minister in the howard government from 1996 to 1999. the denning law journal 185 and australia gained an almost working set of native title registration arrangements. however, such negotiations generally take place far removed from the more densely settled areas. most australians rarely have to consider the indigenous provenance of the property they purchase because native title rights have often been long extinguished. to whom the land belonged before the crown claimed it, is rarely a question that troubles most conveyancers. however, in at least queensland, this historical anomaly could be remedied by a simple tweak in the titles office. certificates of title could easily contain a record of the first nation that once lived, cared for and owned the land where anyone’s residential block is now located. this could be done without stimulating any native title claims or challenging contemporary settled law. most of our symbols sit outside the constitution and land is definitely the largest one. australia’s founding document contemplated a shifting definition of borders. new zealand even has a mention20 in the document’s introduction. with such a fluid definition of this nation in our birth certificate surely australians would feel they belong even more if they could look at a certificate of title that stretched back 3,000 generations or so. this enhanced sense of belonging could also be used to generally improve australians’ sense of stewardship of this land. section 51 of the constitution contains a long list of the responsibilities of the commonwealth government but caring for country is not one of them. however, first nations have continued to bear this sense of duty irrespective of the white shenanigans that have taken place in this great southern kingdom with no king. all decent australians should be encouraged to take on the responsibility of ‘caring for country’. a whole of country problem needs a whole of country solution. making ‘caring for country’ a federal responsibility, following the example long set by first nations, would go some way to addressing the shambolic state of australia’s fragmented environment laws. the federal government has previously embarked on a caring for country approach, albeit on a small scale. the caring for our country initiative was established in july 2008 by the rudd government. its aim was to achieve a healthier, more resilient, better-protected environment that could continue to provide essential ecosystem services as climate change progressed. the initiative saw the integration of a range of national natural resource management programmes, as well as increased funding for indigenous-specific working on country and indigenous protected area programmes.  20 aotearoa/new zealand was originally incorporated into the constitution as an australian state. 186 comment the programme was a success, securing better outcomes for australia’s environment. the initiative saw the uptake of more sustainable farming practices across australia, improved water quality in the great barrier reef, a two-million hectare increase in the amount of native vegetation with protected status, and carbon emissions reduced through the expansion of traditional fire management regimes across northern savannas. in addition to these environmental benefits, the initiative also had many benefits for indigenous people, who were empowered through this programme to, once again, take an even more active role in the management of their country.  sadly, despite its success, the caring for our country programme was not continued when the abbott federal government took office in 2013. the current de-centralised nature of australia’s environmental laws has created a situation where states and territories are auctioning off environmental protections in order to compete for corporate investment. waste management is a good example of how destructive a fractured policy approach can be. the former queensland liberal national party government loosened red tape around waste disposal in that state.  when the $35 per tonne waste levy was scrapped in queensland in 2012, truck after truck then made their way to the queensland border towns to dump their waste for free. in the 2016–17 financial year, a horrifying 900,000 tonnes of sydney garbage was trucked over the tweed river to queensland. other unscrupulous operators bought up industrial sites for the purpose of filling them with millions of discarded tyres. regulation around household garbage collection is treated in a similar ad hoc fashion across the states and territories.  the amount of household waste that is diverted from landfill varies significantly. south australia does it well, with over 75 per cent of its household waste diverted from landfill. however, tasmania and queensland are far behind with around 50 per cent diverted from landfill and the northern territory only recovers around 28 per cent. however, as a nation, australia is well behind other countries in our waste recovery. austria produces a similar amount of waste to australia but diverts around 94 per cent from landfill. without consistency across the states and territories it is almost impossible to have consistent best practice for waste disposal. likewise, our states and territories are primarily responsible for regulating rehabilitation requirements for mining and resource projects. states competing for mining dollars can choose to make their state more attractive for investment by reducing the rehabilitation requirements after the closure of their mines.  whilst the state may benefit from such a short-term investment boost, our nation’s environment is the long-term loser. a national co-ordinated approach to caring for the environment, or ‘caring for country’ as do first nations, would prevent such a race to the bottom of the environmental scrap-heap by the states. strong national the denning law journal 187 leadership could see uniform waste management where the goal is for best practice, not more ephemeral dollars. it could ensure corporate responsibility is not used as a bargaining chip for investment dollars. this nation’s corporations would have a greater responsibility to care for their precious environment. if the list of federal responsibilities included what the first nations considered to be their responsibility for over 60,000 years, ‘caring for country’, there would be a longer term focus on decisions made about our natural landscapes. it would go some way to removing short-term politics from development decisions and ensure that the national interest is considered. suddenly issues such as the degradation of good productive farming land, urban development, falling biodiversity, water security, and the threat of climate change would have to be factors considered by all levels of government. australia’s three different tiers of government would be more likely to work together to solve these common problems. and the commonwealth would have some stick to use alongside the tax-dollar carrots. the environment belongs to all australians, not just farmers and traditional owners – every single one of us. it sustains and nurtures us all.  in senator dodson’s yawuru country, native title holders are working towards a sense of mabu liyan, a healthy spirit, in mabu buru a good place. signs at broome airport welcome tourists in those terms. this sense of connection could be energized for all australians in all parts of the country, from the beach to the bush, from the desert to the daintree rainforest. and just as places can be recognised and acknowledged, so too can our founding documents.  isn’t it time this nation’s birth certificate recognised all its parents? isn’t it time, like vincent lingiari21 fifty years before, that we pour our own sand through our own hands and walk like mates together into the future, having recognised and celebrated the reality of our past. 21 aboriginal rights activist and member of the gurindji people. at an important event in australian history, the then prime minister, gough whitlam, poured the local sand into vincent lingiari’s hands, symbolically handing the wave hill station back to the gurindji people. lord denning in perspective gilbert kodilinye* lord denning the judge and the law edited by j. l. jowell & j. p. w. b. mcauslan [london: sweet & maxwell, 1984. xxxv & 486 pp. hardback £25.00] this volume of essays is perceived by the editors as an assessment of lord denning's contribution to the development of english law during his 38 years on the bench. legal scholars in the united kingdom have traditionally been preoccupied with the exposition and analysis of legal principles and, unlike their north american counterparts, have generally shown little interest in assessing the contributions made by individual judges to the development of the law. the editors express the hope that this book will set a new trend, and that other authors will be encouraged to produce similar volumes on other distinguished and long-serving judges of our time. in the present volume, a team of prominent academic lawyers has surveyed lord denning's judgments in the fields of contract, tort, equity and trusts, family law, land, planning and housing law, administrative law and labour law, and there are additional chapters on lord denning's approach to human rights, his role as jurist and his influence on commonwealth law. it would be impossible in a review of normal length to comment in any detail upon every area covered by this volume. it is proposed, therefore, to look at four 'core' areas in which lord denning's influence has made the greatest impact, namely contract, tort, equity and trusts and land law. the chapter on contract and tort is contributed by professor p. s. atiyah. he points out that any survey of lord denning's contribution in this area will initially require an account of the development of the common law throughout the whole period since the end of the second world war. it is indeed astonishing how many fundamental principles of contract and tort have been moulded by lord denning, and it needed a book of this nature to remind all concerned of the vastness of his influence. the author further emphasises that a survey of lord denning's judgments in contract and tort will serve to dispel the popular belief that his lordship's decisions were constantly rejected by his brethren on the "'lecturer in law, university of birmingham 127 the denning law journal bench or overturned on appeal. on the contrary, in the majority of cases his views were either followed from the outset or, though initially viewed with suspicion, were eventually vindicated through the judicial process or by legislation. starting with the law of contract, lord denning's imprint can be seen in every area. his best-known contribution is undoubtedly the development of the principle of promissory estoppel which he first enunciated in central london property trost ltd. v. high trees house ltd .. i professor atiyah emphasises that lord denning never regarded promissory estoppel as being a reliance-based doctrine, but a promise-based one. it was sufficient that the promise was intended to be acted upon and had in fact been acted upon, and there was no need to show that the promisee had acted to his detriment. another major contribution was the doctrine of fundamental breach which lord denning used for many years in his role as champion of the consumer. this may be cited as an example of a "holding operation" which lord denning has frequently conducted pending statutory intervention in this case the hire purchase acts of 1964-1965 and the unfair contract terms act 1977. in offer and acceptance it was lord denning who, in entores ltd. v. miles far east corporation,2 established the rule that, in determining the time and place of acceptance of an offer, communication of acceptance by telex was to be equated with communication inter praesentes and not with postal ones. in another context, that of a council tenant seeking to enforce an alleged agreement for the sale of a council house against a local authority, lord denning was able to find a concluded contract on seemingly flimsy grounds, but the decision was overruled by the house of lords (gibson v. manchester city council). 3 this case is an example of the kind of approach for which lord denning has often been criticised. it seems that in his determination to support a political policy that of giving council tenants the right to purchase the freeholds of properties let to them he was quite ready to ignore the fact that in this case the prospective purchaser had not secured mortgage finance. to hold the contract binding in such circumstances was detrimental both to the council and to the purchaser. in several other areas of contract law lord denning has been profoundly influential. in particular, he has sought to loosen many of the traditional bonds which tended to inhibit growth and he has introduced a much-needed flexibility. some of these innovations have already become established principles; others have yet to be accepted. instances discussed by professor atiyah include: the partial integration of the law of misrepresentation, warranties and negligence (esso petroleum co. ltd. v. mardon};4 the court's power to imply "reasonable" terms into a contract (liverpool city council v. irwin};5 the concept of inequality of bargaining power (lloyd's bank ltd. v. bund)~;6 the equitable power to set aside a contract 1. [1947] 1 k.b. 1301. 2. [1955] 2 qb. 327. 3. [1978] i w.l.r. 520; [1979j i w.l.r. 294. 4. [1976] qb. 801. 5. [19761 qb. 319. 6. [1975j qb. 326. 128 lord denning in perspective entered into under a fundamental mistake (solle v. butcher);7 and the court's power to award damages for mental upset and inconvenience garois v. swan's tours ltd.). 8 in tort, being a more fluid area than contract, lord denning has had greater scope to develop his public policy ideas, and his influence has been far-reaching. negligence has always been his lordship's particular forte, and many of his most memorable diaa are to be found in negligence cases. perhaps his greatest contribution in this area was his famous dissenting judgment in candler v. crane christmas c5 co.,9 which was so triumphantly vindicated 13 years later in hedley byrne c5 co. v. heller c5 partners, 10 though the expansive approach to liability for negligent misstatements taken by him in candler contrasts oddly with the restrictive one which he later took, in spartan steel c5alloys ltd. v. martin c5 co. ltd., ii with respect to recovery for other forms of purely economic loss. another notable success for lord denning was his decision in dutton v. bognor regis u.d.c., 12 which opened the door for claims by house purchasers against negligent local authority building inspectors and which was followed by the house of lords in anns v. merton london borough.13 the latter case is ~lso significant in that it finally put the seal of approval on lord denning's view which judges had for a long time rejected that liability in negligence actions ultimately depends upon public policy, and it serves as an example of what professor atiyah describes as "lord denning blazing the trail and the house of lords subsequently giving their approva1." 14 lord denning's statements of principle in tort cases have not always met with approval and he has lost a number of important struggles which he had carried on with his customary zea1. for instance, he failed to overturn the well established rule that the employer's duty to fence under the factories act 1961 and its predecessor of 1937 was a duty to keep workers out and not the machinery in, so that a workman could not claim in respect of injuries suffered when a piece of the unfenced machinery escaped and struck him.15 again, lord denning's attempt to introduce a "family car" principle in vicarious liability cases was rebuffed by the house of lords in morgans v. launchbury 16 (though, it may be noted, not because the house disapproved of the principle but because their lordships felt that any change in the law should be brought about by parliament, after due investigation and deliberation, and not by the judiciary). and a third example of lack of success by lord denning is to be 7. [1950] 1 k.b. 671. 8. [1973] 1 qb. 233. 9. [1951] 2 k.b. 164. 10. [1964] a.c. 465. 11. [1973] qb. 27. 12. [1972] 1 qb. 373. 13. [1978] a.c. 728. 14. at p. 61. 15. close v. steel co. of wales [1962] a.c. 367. 16. [1973] a.c. 127. 129 the denning law journal found in cassell v. broome f5 co. ltd.,17 where he was sternly rebuked by the house of lords for refusing, in the court of appeal, to follow the rules relating to exemplary damages which had been laid down by the house in rookes v. barnard, 18 an action on lord denning's part which the house regarded as unconstitutional. in his concluding remarks, professor atiyah suggests that lord denning's innovations have proved more successful in contract and tort than in other fields and this may be due at least to two factors. first, since legislation has not intruded in this area to any great degree, lord denning has been able to "give full rein to his policy orientations without having to contend with the often different policy of parliament." 19 secondly, in both contract and tort lord denning has been "fundamentally in sympathy with the underlying trends in the law", 20 for instance the trend towards giving greater protection to the consumer in contract and the basic ideal that parties who are at fault should be required to pay compensation in tort. lord denning's work in the area of equity and trusts is discussed by mr d. j. hayton. here again the impact of lord denning has been considerable, but his judgments have, in general, been less well received than those in contract and tort. in a sense, the chancery judge is in a most uncomfortable position. on the one hand, he must remind himself that the doctrines of equity are "progressive, refined and improved",2j that courts of equity are invested with many broad discretionary powers, and that the underlying philosophy of equity is that justice should be done between the parties. on the other hand, he must be aware that much of equity lies within the boundaries of property law, and that conveyancers, landowners and all other persons who have interests in property require a high degree of certainty in the law, and that for such persons well settled and clearly defined principles are infinitely preferable to vague, flexible concepts. many commentators take the view that lord denning was too ready to sacrifice certainty in the law in order to reach what he believed to be a fair solution in the instant case, and in so doing he had not only ridden roughshod over many well established principles, but actually confused and muddled the law by attempting to formulate new principles when it was not strictly necessary for the case in hand. mr hayton discusses lord denning's decisions in a wide variety of topics, starting with 'the deserted wife's equity'. this was a major doctrinal innovation of lord denning, whereby a wife was invested with an equitable interest in the matrimonial home which would prevail against successors in title of the husband with notice of her status. the principle was decisively rejected by the house of lords in national pmvincial bank ltd. v. ainsworth,22 on the ground that the wife's right to occupy was personal to her and it would be unfair to the husband's creditors if those rights 17. [1972] a.c. 1027. 18. [1964] a.c. 1129. 19. at p. 76. 20. at p. 77. 21. re hal/etl's estate (1880) 13 ch. d. 696, 710 per sir george jessel, m.r.. 22. [1965] a.c. 1175. 130 lord denning in perspective were to prevail against his trustee in bankruptcy. in the matrimonial homes act 1967 parliament attempted a compromise between the two positions and provided that a spouse, whether deserted or not, could protect her or his interest in the matrimonial home by registering a class f land change which would be good against the whole world except the other spouse's trustee in bankruptcy. other important contributions of lord denning in the field of equity are the development of the mareva injunction (which enables the court on an ex parte application to freeze the assets of a foreign and in some circumstances a locally resident defendant) and the anton piller order (which enables a plaintiff to inspect and seize documents and articles specified in the order, and which has proved to be a useful weapon against vendors of pirate cassettes and against record bootleggers). still in the area of equitable remedies, lord denning has always been hostile to the house of lords decision in american cyanamid co. v. ethicon ltd.,23 which purported to remove the long-established requirement that in an application for an interlocutory injunction, the plaintiff must show a strong prima facie case. mr hayton points out that, by ingenious manipulation of certain diaa in american cyanamid, lord denning and other judges have been able to pay lip-service to that decision whilst in effect deciding cases in the same way as they would have been decided pre-cyanamid. in the author's view, the cyanamid principles are too "artificial and elaborate for pragmatic judges to be controlled by them." 24 and in the very different area of discretionary trusts, it was lord denning who first expressed the view that the test for certainty of objects should be assimilated to the test in mere powers, and his view was eventually accepted by the house of lords in the landmark case of mcphail v. daulton. 25 it is perhaps in the areas of licences, constructive trusts and family property that lord denning's decisions have provoked the most controversy and where he is most open to the charge of having 'muddied the waters'. certainly, the practitioner or the academic who seeks clear-cut and logical principles is likely to be overcome by a sense offrustration when confronted with many of lord denning's judgments in this area. for instance, lord denning would impose a constructive trust "wherever justice and good conscience require it", since the concept is "a liberal process, founded on large principles of equity, to be applied in cases where the defendant cannot conscientiously keep ... property for himself alone, but ought to allow another to have the property or a share in it." 26 lord denning has readily sought to impose a "constructive trust of the new model" in cohabitation cases, where the house is purchased by the man, his cohabitee not contributing towards the purchase price and not therefore acquiring any equitable interest in the property under traditional principles. according to his lordship in such cases the 23. [1975] a.c. 396. 24. at p. 99. 25. [1971] a.c. 424. 26. hussey v. palmer [1972] 1 w.l.r. 1286, 1289. 131 the denning law journal cohabitee is entitled to a share in the house by virtue of the time and effort she puts into looking after the house and caring for her man and any children of the union. quite apart from the uncertainty and unpredictability which so wide a principle generates, as mr hayton points out lord denning's approach in the cohabitation cases cannot be reconciled with the firm view taken by the house of lords in gissingv. gissini7 that the court cannot impose a constructive trust unless there is evidence of a common intention that the claimant should acquire an interest in the home. moreover, the imposition of a constructive trust has serious implications for third parties, whether they be purchasers, donees or creditors, for the beneficiary has the right to trace the property into the hands of any person other than a bona fide purchaser for value without notice, and he or she has priority to recover his full share in the property before the general creditors of the constructive trustee. an even more controversial use of the constructive trust concept by lord denning occurred in binions v. evans, 28 where he held that if p contracts with v to purchase property from v expressly subject to t's contractual licence, then after the purchase p holds the property on constructive trust for t, since it would be unconscionable for p to ignore t's rights. such a proposition runs counter to the well established principle that a contractual licence does not bind third parties and seems to be a complete misuse of the constructive trust concept. mr hayton rightly suggests that such a fundamental change in the law is best left for parliament, which could provide for the registration of contractual licences as land charges. finally, lord denning has sought to widen the scope of proprietary estoppel by suggesting that it is not necessary for the claimant to have expended money on the property or otherwise to have acted to his detriment. this is clearly contrary to a long line of cases following from fry j.'s classic exposition of proprietary estoppel in willmott v. barber,29 and there is no legal justification for it. it must be admitted, however, that the broad flexible discretion which lord denning advocates in both proprietary and promissory estoppel cases has found favour with some judges, and he may ultimately be correct in his assessment that "all these various estoppel principles can now be seen to merge into one general principle shorn oflimitations [that] when the parties to a transaction proceed on the basis of an underlying assumption ... on which they have conducted the dealings between them, neither of them will be allowed to go back on that assumption when it would be unjust or unfair to allow him to do so.,,30 in a most comprehensive chapter entitled "land, planning and housing", professor mcauslan points out that lord denning has been in the forefront of the movement of land law, since the end of the second world war, from a system concerned with private relations between two parties as envisaged in the 1925 27. [19711 a.c. 886. 28. [1972] ch. 359. 29. (1880) 15 ch. d. 96. 30. amalgamated illvestmet1t alld property co. ltd. v. texas lrllemat;ollal barlk lid. [1982] qb. 84, 122. 132 lord denning in perspective legislation to a largely public system in which the law is concerned with such matters as housing and rent control, the use and development of land and the rights and duties of owners, occupiers and dealers in land. the author suggests that, in recent years at least, lord denning's judgments in this area became infused with his political and moral beliefs and, in particular, his lordship appears to have evolved a doctrine of abuse of rights. the themes of balance, responsibility and prevention of abuse of rights became more pronounced in lord denning's judgments after his return to the court of appeal as master of the rolls in 1962. for instance, he dealt with abuse by landlords in luganda v. seroice hotels ltd.31 and drane v. evangelou,32 both cases in which landlords were guilty of harassment against their tenants. in lord denning's view, there was no difficulty in granting injunctions and exemplary damages in such cases since the landlords were challenging not so much the tenants' rights as the role and power of the judicial process. examples of so-called abuses by tenants are bickel v. duke of westminster3 and central estates belgravia ltd. v. woolgar,34 in which lord denning prevented tenants from "taking advantage of' the leasehold reform act 1967. in checking what he perceived as abuses of rights, lord denning paid scant regard to the convenience of conveyancers and, as 'has often been pointed out, was prepared to strain legal rules to their limits in order to do justice in the individual case. indeed, he once admitted that "i prefer to see that justice is done; and let the conveyancers look after themselves." 35 an admirable sentiment, to be sure, but hardly calculated to ensure that lord denning's more maverick decisions will become established precedents. in this survey professor mcauslan also observes that lord denning showed clearly where his personal preferences lay, and, like the lord chancellors of old, infused his decisions with his own individual sense of 'right' and 'wrong'. for instance, he obviously had great sympathy for elderly widows (binions v. evans)36 and admiration for the game of cricket (miller v. jackson),37 with a corresponding dislike of estate agents (dennis reed ltd. v. goody),38 recalcitrant local councillors (asher v. secretary of state for the environment} 39 and caravan site owners (james v. minister of housing and local government}.40 a more objectionable aspect of his lordship's personal preferences is his occasional insensitivity towards 'foreigners', which is perhaps a manifestation not so much of xenophobia as of an obsessive attachment to what he sees as purely 'english' qualitites. offending phrases mentioned by the author include "a large greek cypriot was barring the 31. [1969] 2 ch. 209. 32. [1978] 1 w.l.r. 455. 33. [1976] 3 w.l.r. 805. 34. [1971] 3 all e.r. 647. 35. brikom it/vestments ltd. v. carr [1979] 2 all e.r. 753, 760. 36. [1972] ch. 359. 37. [1977] qb. 966. 38. [1950] 2 k.b. 277. 39. [1974] ch. 208. 40. [1965] 3 all e.r. 602. 133 the denning law journal entrance",41 and "the tenant mr mccall comes from dominica in the west indies; he has been here for 17 years." 42in dealing with a number of cases arising under the housing (homeless persons) act 1977, lord denning showed little sympathy for 'foreign' claimants and seemed to take the view that in seeking the assistance of the courts in order to secure council housing, such claimants were abusing their privileges. choice epithets include "an advancing tide",43 a "coloured woman,,44 and "true born englishmen".45 professor mcauslan suggests that behind lord denning's judgments in such cases lies the notion of the deserving and the undeserving poor, the former of whom are exercising their rights (e.g., council house tenants seeking to purchase their council houses from local authorities) and the latter (e.g., homeless foreigners or council tenants complaining of breaches of duty on the part of local authorities) seeking to abuse their rights. the author regrets that these cases have done "little to enhance lord denning's reputation for seeking the just solution." 46 lord denning's judgments in planning cases are influenced by his concern for traditional rights and customs in respect of land and by his desire to preserve the beauty of the countryside, as exemplified by his hostility towards caravan site owners and industrial development. on a more technical level, professor mcauslan points out that, unlike several other judges, lord denning adjusted quickly to the new approach to land use control under which the traditional concepts of nuisance, trespass, waste, easements and restrictive covenants were downgraded in favour of statutory control in the form of planning permissions, enforcement notices and the like. but he emphasises that although lord denning accepted the new statutory regime, he was able to engraft on to it a framework of principles based upon the same notions of balance and prevention of abuse of rights which he had applied in private law cases, and that "in the guise of setting what appeared to be reasonable limits to the discretion of public authorities [he substituted] a wide judicial discretion for a wide administrative discretion.,,47 in conclusion, there is no doubt that this volume of essays will be most welcomed by academic lawyers, research students and those undergraduates to whom the literature of the law is more than mere examination fodder. it is a truly original conception, and it is a tribute to the authors that they have been able to present such a lucid, substantial and penetrating account of the work of arguably the greatest judge of this century. one can only echo the wish of the editors that this work will inspire others to produce commentaries of a similarly high standard and that such ventures will receive the support which they undoubtedly deserve. 41. dralle v. evaplgelou [1978j 2 all e.r. 437, 439. 42. mccall v. abelesz [1976] qb. 585, 591. 43. de falco v. crawley d.c. [1980j qb. 460, 472. 44. r. v. slough b. c., ex p. ealiplgl.b. c. [1981] i all e.r. 601, 611. 45. de falco v. crawley d.c., supra n. 43, at p. 473. 46. at p. 203. 47. at p. 178. 134 local ombudsmen: the future d. c. m. yardley* the latter part of the twentieth century has been a time of fairly rapid change and reform of the english legal system. courts have been abolished and replaced; new courts or types of judge have been created; and legal process has in many respects been overhauled and in some instances streamlined. many aspects of the system remain either clearly defective or at least questionable in quality, and none of us can ever realistically expect to find that perfection will have been attained. yet the movement for reform is strong, and commands general adherence from all party political quarters, so we can expect the momentum to continue. in this article it is proposed to consider the prospects for reform and strengthening of the position and work of the english local ombudsmen. the movement for the creation of ombudsmen first came to prominence in the united kingdom as a result of the crichel down affair culminating in sir andrew clarke's report published in 1954.1 it gathered in strength steadily during the succeeding decade, assisted in particular by the efforts of justice, the british section of the international commission of jurists, who set up committees which recommended the setting up of ombudsmen to deal with complaints against both central government2 and local government3 authorities. the point had been grasped that there was a gap in our administrative law. the courts provided remedies of various kinds to redress illegality, and they had developed a classification of such illegality by administrative authorities under the headings of ultra vires, breach of natural justice and error of law. there had for years been a volume of criticism based upon the antiquated character of the procedures surrounding the provision for judicial review, a criticism which was not met until the introduction of the modern application for judicial review with effect from 1978,4 though even now there are doubts whether case-law since 1977 had adequately reflected the high hopes raised by the new procedure.5 but what •• chairman of the commission for local administration in england. i. report of the public inquiry ordered by the minister of agriculture into the disposal of land at crichel down, cmnd. 9176. 2. the citizen and the administration: the redress of grievances (1961). 3. the citizen and his council (1971). 4. 5.1. 1977 no. 1955; re-enacted with amendments by the supreme court act 1981, s. 31. 5. see yardley, principles of administrative law 2nd ed. (1986), ch. 5. 163 the denning law journal crichel down had opened up for all to see was the prospect of administrative authorities acting quite legally and yet unfairly or wrongly by ordinary standards of public morality. for such behaviour the law offered no prospect of a right to any redress, and it was for this lacuna that the model presented by the scandinavian office of ombudsman offered the prospect of a substantial improvement in our system. it is well known that the first british ombudsman, the parliamentary commissioner for administration, was set up for great britain by the parliamentary commissioner act 1967.6 the parliamentary commissioner for administration's jurisdiction covered complaints of injustice caused by the maladministration of most of the various central government departments or agencies, and his jurisdiction has been increased on a number of occasions in later years by comparatively minor measures of either primary or secondary legislation. the most important addition to his functions occurred at the time of the reorganisation of the national health service when the original exemption from the parliamentary commissioner for administration's authority of the whole hospital service was reversed by the creation of three separate health service commissioners, for england, wales and scotland,7 with the duty to investigate any alleged failure in a service provided by a health authority, or any action taken by or on behalf of such an authority, where there is a complaint of injustice in consequence of maladministration. although these commissioners seem at first sight to be different ombudsmen, all three offices have in practice always been held by whoever is the current british parliamentary commissioner for administration, and so in reality (and with only minor procedural differences between the work of the apparently separate commissioners) the creation of these offices can be considered as a method of extending the jurisdiction of the parliamentary commissioner for administration. the extension of the ombudsman system from great britain to northern ireland was achieved by the parliamentary commissioner act (northern ireland) 1969 and the commissioner for complaints act (northern ireland) 1969, both passed by the old stormont parliament. the latter measure was the first act within the united kingdom to extend an ombudsman jurisdiction to the workings oflocal government, and it preceded related legislation for england, wales and scotland. nevertheless the northern ireland commissioner for complaints has a jurisdiction extending beyond local government, because in that province there are several important administrative functions entrusted to province-wide bodies which in great britain are the concern of local government authorities. thus his remit covers such bodies as the northern ireland housing trust, the northern ireland fire authority and the northern ireland hospitals authority, as well as 6. this was the second non-scandinavian ombudsman office to be created. the first was in new zealand: parliamentary commissioner (ombudsman) act 1962. 7. by the national health service reorganisation act 1973 (for england and wales), and the national health service (scotland) act 1972. 164 local ombudsmen: the future local authorities. in great britain, on the other hand, the division of labour between the ombudsman dealing with central government functions and those dealing with local government is much more clear-cut. the local ombudsmen for england and wales were set up by the same act in 1974,8 and the local ombudsman for scotland in 1975.9 there are minor differences between them as to jurisdiction, funding etc., but in most respects they have identical powers and functions. each of them has been concerned to improve the service provided, and with varying results, but the remainder of this article will be concerned only with the prospects for development as they relate to the english local ombudsmen. lt is not intended to list here the details of the jurisdiction and procedures of the local ombudsmen, but part iii of the local government act 1974 provides for the setting up of the commission for local administration in england, consisting of an unspecified number of local commissioners, popularly known as local ombudsmen, together with the parliamentary commissioner for administration for great britain, and that one of the local ombudsmen shall be appointed as chairman of the commission. the local ombudsmen have the duty to investigate complaints of injustice suffered in consequence of maladministration in connection with the execution of administrative functions performed by a local authority, police authority, water authority or any joint board of local authorities. there are a number of exclusions from their jurisdiction, such as the investigation of crime, discipline in schools, matters affecting all or most of the inhabitants of an authority's area, matters relating to the pay and conditions of service of local government officers, and matters in respect of which the complainant has a right of recourse to a tribunal, a minister or a court, unless the ombudsman considers that it is unreasonable that he should pursue such a remedy. a complaint must be in writing, must usually be made within twelve months of the matter complained about, and must normally be referred to the ombudsman by a member of the authority concerned with the consent of the complainant, though this latter requirement may be dispensed with if the ombudsman is satisfied that such a member has been asked to refer the complaint and has failed to do so. lt has been consistently argued by the commission since its early days that a complainant ought to have the alternative of direct access to a local ombudsman, but the secretary of state has never agreed to amending legislation designed to effect this, mainly because of the view of the representative body (mentioned below) that such a change might weaken the relationship of the ward councillor with his constituents. in 1984, however, a compromise was achieved with the agreement of the secretary of state and of the representative body which did not require legislation. under this any complaint received direct is no longer returned to the complainant, as it was before, but instead is sent to the civic head of the authority complained about (chairman, mayor or lord mayor), asking him to 8. local government act 1974. 9. local government (scodand) act 1975. 165 the denning law journal effect a local settlement if possible, and if he cannot do so to refer the complaint formally to the local ombudsman; and the complainant is informed that this is being done. thereafter any local settlement or reference by the civic head brings the case into line with the normal practice where a complaint has initially been properly referred, while any failure to settle it or to refer it enables the local ombudsman to exercise his discretion to take it on anyway on the basis that a member has failed to refer it. the result of any investigation must be reported to the complainant, to the authority concerned and to the member of the authority who may have referred the complaint. the authority must then make the report available for public inspection. where the local ombudsman has concluded that injustice has been caused as a result of maladministration, the report must be considered by the authority, which must then tell the ombudsman what action it proposes to take in consequence of it. if the local ombudsman is not satisfied with such action he may make a further report, but he has no other formal means of insisting upon compliance with his findings. the 1974 act provides that the commission for local administration should periodically review its legislative framework as laid down by the act, and report its findings or recommendations to the secretary of state for the environment, and this would seem to be the mechanism which parliament intended to enable reforms or adjustments to be set in motion. unhappily experience has shown it to have worked out less effectively than might have been expected. in the dozen or so years since it was set up the commission has submitted three such reviews to the secretary of state, in 1978, 1980 and 1984, making in all a substantial number of recommendations designed to strengthen the effectiveness of its work. it has been unfortunate in the first place that the commission has usually had to wait a considerable period of time before the secretary of state's response has been forthcoming. the longest period was the three and a half years it took to receive the response to the 1980 review, and the response to the 1984 review took some 13 months to appear. but secondly, and more crucially, the responses have tended for the most part either to be negative or else to accept the main thrust of certain recommendations without thereafter making any provision for ensuring their implementation.) 0 a number of the matters dealt with in the periodical reviews by the commission have been concerned with details, and there may be little point in further ventilating them here. but it has been the belief of the commission that a credible local ombudsman system should have a jurisdiction covering all aspects of local government unless there is some very good reason why an exception should be made. accordingly it has been disappointing to find that successive secretaries of 10. see also recommendations made in a later report byjustice, the local ombudsmen:a review oj the first five years (1980); and yardley, "local ombudsmen in england: recent trends and developments", [1983] public law 522. 166 local ombudsmen: the future state have rejected recommendations to extend the jurisdiction of the commission for local administration to cover parish and town councils (the only local authorities exempted under the act), disciplinary matters within schools, personnel matters, and commercial and contractual matters (most of which, other than transactions relating to the acquisition or disposal of land, are currently exempted). the secretary of state has also not agreed to the suggestion that local ombudsmen should be able to initiate investigations themselves, and he has steadfastly set himself against the repeated recommendation that a complainant should be permitted to register his complaint direct, if he so wishes, rather than through a member of the authority complained about. it should not be thought, however, that he has been stubborn or quixotic in these decisions, for on each of these matters he has reflected the views of the representative body, set up by section 24 of the act, which has a limited role for purposes of consultation, but which is clearly labelled in the act as representing the english authorities under the jurisdiction of the local ombudsmen. granted the statutory position of the representative body, it is not surprising that the secretary of state must pay special heed to its views put forward as "representation". yet there have over the years been a number of recommendations by the commission for reform which htroe been accepted by the secretary of state, and which still await implementation. in response to the 1978 review, for example, it was agreed that authorities should be required to consider a local ombudsman's further report on an investigation in the same way as a first report. again, in response to the 1980 review, it was agreed to repeal the provision excluding from jurisdiction the investigation of action taken by an authority in connection with the investigation or prevention of crime, and also to extend jurisdiction to cover the housing functions of new town bodies and the development control functions of urban development corporations. 11 a very few changes have been implemented, 12 but the only one of substance was in the end achieved by means of a private member's bill introduced into the house of lords by baroness faithful!. this became the local government act 1978, and it gives authorities the power to incur expenditure lawfully to remedy injustices found by local ombudsmen to have been caused by maladministration. ironically the reform was quite unconnected with any review of the act made by the commission. it remains the case that successive secretaries of state have stated their intentions to introduce legislation amending the provisions relating to the commission for local administration, but in the main have failed to carry out these intentions. it is not all that surprising that the department of the environment, with its multifarious and often politically highlighted responsibilities, should consider 11. subsequently reiterated in cmnd. 9563 (1985). under the law reform (miscellaneous provisions) (scotland) act 1985, tenants of the scottish special housing association now have the right to complain to the scottish local ombudsman, and they may do so direct. 12. see, e.g., the local government, planning and land act 1980, s. 184. 167 the denning law journal matters concerning the commission of less urgency than some others. but in the mid-1980s there has been interest in the work of the local ombudsmen from two other significant quarters. in 1984 the house of commons select committee on the parliamentary commissioner for administration became concerned about the fact that in a small number of instances authorities have not accepted or fully implemented the reports of local ombudsmen. strictly speaking the select committee has no direct jurisdiction over the work of local ombudsmen, but its terms of reference include not only the work of the parliamentary commissioner for administration and health service commissioners but also a general oversight of matters which are concerned with furthering the ombudsman principle, and it was on this score that the committee decided to make some inquiries on the issue. secondly in 1985 the committee of inquiry into the conduct of local authority business, chaired by mr david widdicombe, qc, and set up by the secretary of state for the environment, expressed a more general interest in the work of local ombudsmen and its possible expansion. much of the evidence given by the commission to these bodies was in similar vein to that provided by other united kingdom ombudsmen, and in the event the written evidence submitted was followed by oral evidence to the select committee by the writer on 15 may 1984,13 and to the widdicombe committee by all the local ombudsmen from england, scotland and wales on 25 november 1985, the latter evidence being in private. apart from the evidence directed towards the desirability of making the local ombudsman system more comprehensive, special attention was given to what has in general parlance been called "enforcement". the commission made it clear that it has never favoured any reform which would enable it directly to enforce local ombudsmen's recommendations, which are extra-judicial and ought not to be considered as binding enforceable judgments. nevertheless the credibility of the system is harmed if it is seen that authorities may ignore local ombudsmen's reports with impunity if they so choose. it was the clear intention of parliament in 1974 that the act should provide for a means of impartial arbitration, and that it should be effective. the parliamentary commissioner for administration and health service commissioner has no problem on this score because he has the select committee to support him, and may, if necessary, make a report direct to parliament, where mps would be likely to make a sufficient fuss to ensure that recalcitrant departments or civil servants comply. many ombudsmen in other countries report direct to their parliaments, and some even address their parliaments orally. only the british local ombudsmen are without such support and must rely upon their own powers of persuasion with authorities where difficulties arise. accordingly the view put by the english, welsh and scottish local ombudsmen to the select committee and to the widdicombe committee has been that the best solution would be for all authorities always to agree to accept 13. select committee on the parliamentary commissioner for administration, session 1983-84, minutes of evidence. 168 local ombudsmen: the future and implement local ombudsmen's reports, however much they may sometimes dislike them: this is a course which has been urged upon the local authorities by their own associations. but, failing such an achievement, they have urged the importation into great britain of a provision in the commissioner for complaints act (northern ireland) 1969, section 7. uniquely among the provisions for ombudsmen in the united kingdom or elsewhere, a report of the northern ireland commissioner for complaints may be used, at the instance of the complainant, as the basis for a claim in the county court for damages or any other suitable remedy. there is thus little point for an authority in the province to refuse to comply with the terms of a report by the ombudsman because to do so would be likely to result in a court order which, in practice, has normally been identical to the recommendation in the report. the reports of both the select committeel4 and the widdicombe committee1s were published in the summer of 1986. that of the select committee is of course concerned with the single issue of "enforcement". the report is unanimous in its condemnation of those authorities which may from time to time refuse to accept or to implement the recommendations made in the report issued after an investigation by a local ombudsman, and reflects the belief of both local ombudsmen and the representative body that it is really incumbent on the authorities, in the interests of the good name of local government, that they put their own house in order in this respect. but the select committee feels that the time has not yet come for the importation into great britain of the provision for possible court enforcement existing in northern ireland, especially since ombudsmen commonly recommend a higher standard of behaviour than would satisfy mere legal requirements, and thus are in effect requiring moral, rather than legal, duties to be carried out. the select committee leaves it open for this development in the future if what they prefer now proves to be ineffective, but for the present they recommend that the house of commons extend their own remit to enable them to call upon members and officers of recalcitrant local authorities to appear before the select committee to be questioned. it remains to be seen whether the house of commons accepts and implements this recommendation, and if so whether it does prove effective. one can envisage possible confrontation on a centravlocal government basis, and all local ombudsmen still prefer their own chosen solution. but we shall be only too pleased if the select committee report in the end is shown to have done the trick. the report of the widdicombe committee, however, not only covers a much wider field, but is far more radical in approach, and may well have stolen the select committee's thunder. the widdicombe report makes many recommendations about the whole conduct of local authority business which are outside the scope of 14. local gllvernment cases: enforcement of remedies, 15 july 1986 (third report from the seleet committee on the parliamentary commissioner for administration, session 1985-86), h.c. 448. 15. the condua of local authority business, 19 june 1986. 169 the denning law journal this article. but by way of provisions for safeguards against abuse it also recommends some new powers for the audit commission,16 greater accessibility of judicial review,17 and a considerable increase in the jurisdiction, and strengthening of the powers, of the local ombudsmen.]8 for the first time we have an independent report by a body set up specially by the secretary of state himself which has not only endorsed virtually all the suggestions for reform of the arrangements for local ombudsmen which the ombudsmen have themselves urged, but has even gone a step further in recommending a substantial increase in jurisdiction which the ombudsmen have not themselves voluntarily suggested. in brief the widdicombe committee has recommended six main reforms concerning the local ombudsmen. these are: 1. the removal of all the restrictions upon their jurisdiction which the local ombudsmen have already urged; and the speedy implementation of any earlier recommendations which have been accepted by the secretary of state. 2. that local ombudsmen should have the power to investigate individual cases on their own initiative. 3. that local ombudsmen should be able to receive complaints direct from members of the public, even though the committee recognises that the procedural device adopted in 1984 has at least effected an improvement. 4. the abolition of the representative body, and provision for funding the local ombudsmen from central government funds, rather than from local government as at present. s. that there should be a new statutory right for complainants to apply to the county court for a remedy in cases where the local ombudsman has found maladministration leading to injustice and the complainant is dissatisfied with the remedy offered by the local authority, as in northern ireland. 6. that there should be a new statutory power of assistance for individuals wishing to challenge a decision by their local authority in the courts in cases where there are implications for an authority's services at large or for the conduct of its business generally, or where there are important issues of principle on which clarification of the law is desirable, or where there is evidence of persistent breaches of the law; and this new power to provide assistance should be vested in the local ombudsmen. the english local ombudsmen have consistently pressed for i, 2, 3 and 5 above, and it will be seen that recommendation 5 is not only in line with our own views, but also more bold than the solution proposed by the select committee. 16. paragraphs 9.46 9.59. 17. paragraphs 9.85, 9.95 and 9.99. 18. paragraphs 9.64 9.82. 170 local ombudsmen: the future recommendations 4 and 6 are not the ideas of the local ombudsmen, but they welcome them as being in keeping with the general furtherance of their work. the idea behind recommendation 6 is that the local ombudsman should become in a sense a citizen's defender, yet if implemented it would not compromise the essentially impartial character of the ombudsman office because the local ombudsman would not be expected to do any more than decide that any individual case is suitable for a hearing by way of judicial review: he would not in any sense prejudge the case. it is not without interest that a fairly similar suggested reform has been made by lord justice woolf in the second harry street lecture,19 though he does not suggest that the function be given to local ombudsmen. the secretary of state has now embarked upon a comprehensive round of consultations about all the proposals in the widdicombe report, and early legislation on those concerning local ombudsmen cannot be expected. but all local ombudsmen do now have some real hope that their office will be strengthened in the foreseeable future, and that an era of progress towards more adequate provision for extra-judicial justice is around the comer. if the secretary of state needs any further incentive to act to implement the proposals he may perhaps be influenced by a resolution adopted by the committee of ministers of the council of europe on 23 september 198520 that member states should consider extending and strengthening the powers of the ombudsman so as to encourage the effective observance of human rights and fundamental freedoms in the functioning of the administration. just as the franks committee report of 195721 proved to be the watershed between the earlier rather haphazard and mistrusted system of administrative tribunals and their present systematic and generally respected arrangements, so in a few years' time the trigger for a more satisfactory system of local ombudsmen may be seen to have been the work of the widdicombe committee. 19. "public law private law: why the divide? a personal view", [1986] public law 220. 20. recommendation no.8 (85) 13. 21. report of/he committee on adminis/ra/ive tribunals and enquiries, cmnd. 218. 171 in the supreme court of judicature court of appeal civil division royal courts ofjustice. friday, 30th july, 1982 before: the lord chancellor (lord hailsham of st. marylebone) the lord chief justice of england (lord lane) the master of the rolls (lord denning) the president (sir john arnold) and the vice-chancellor (sir robert megarry) * * * valedictory speeches upon the impending retirement of the master of the rolls (in the presence of the lords justices, judges of the high court and members of the bar) * * * (transcript of the shorthand notes of the association of official shorthandwriters ltd., room 392, royal courts of justice, and 2 new square, lincoln's inn, london, w.c.2) * * * the attorney general, the right hon. sir michael havers, qc., represented the senior bar. mr simon brown represented the junior bar. mr f. ashe lincoln, qc. spoke as senior practising silk. 7 the denninglawjournal the lord chancellor:mr attorney, it is given to few men to become a legend in their lifetime. there would be few in this country who would deny that lord denning is one of these few. from the numbers and standing of his own fraternity of the law assembled here today to do him honour, we can readily infer that he has been and is a golden legend. the law in england has its periods of growth and creativity. it has also enjoyed periods of quiescence and consolidation. each period has its value, and, to a large extent, the values are complementary. when i was called to the bar in 1932, lord denning had already been a barrister for nine years. he had six years to go before he donned the silk gown. the law, at least in my opinion, was in one of its periods of quiescence. it seemed almost as if our lady of the common l~w had gone into a decline, and had handed over her power of development to the sovereignty of parliament, which, however, in those pre-war days was not over-ready to accept the baton. true, there were landmark decisions from time to time, like donoghue v. stevenson, and even dissenting opinions such as that of lord atkin in liversidge v. anderson. i put this period of quiescence down as ending somewhere about 1945 after the decision in liversidge and also after the decision in duncan v. cammell, laird. in 1945 lord denning had been a puisne judge for one year. it thus happens that his career spans the next period of about 35 years, let us say from high trees to goun'et, (laughter), and it so happens, partly by chance, but partly also more than coincidentally, that during those 35 years our lady of the common law awoke from her slumbers and entered upon a period of renewed creativity, generated no doubt by the vast social and legislative changes which have overtaken us, and inspired by a desire to do right to all manner of people without fear or favour, affection or ill will, in the changed circumstances of the post-war world. to this period we owe the revival and extension of that sleeping beauty, natural justice, the vast development of administrative law and judicial review, the renewed assertion by the courts of their independence of the executive, and their belief in the rule of law. it would be wholly unjust to others to ascribe all of these changes to the master of the rolls who is now at length to doff his wig and lay aside the silk and golden robes. but it would be equally wrong in his presence and in this company not to acknowledge the vast debt which this revival of the common law owes to his deep learning, his powerful legal intellect, and even to his telling and pungent english style. english law derives from statute and the common law. it is the function of the courts to interpret the one and evolve the other. from its dual source english law derives at once its vitality and its inspiration. the court of appeal remains the focal point of modern english jurisprudence. it is not quite infallible, and, unless it becomes so, there will always be a humble purpose left for the appellate committee of the house of 8 valedictoryspeeches lords. {laughter}. but the court of appeal remains the mainspring of innovation, and, to abandon my metaphor, for twenty years lord denning has presided over the civil division of the courts of appeal. without him, things will never be quite the same again. i like to think that notwithstanding his retirement our period of creativity will not quite come to an end, still less relapse once more into quiescence. but, master of the rolls, we shall miss you. we shall miss your passion for justice, your independence and quality of thought, your liberal mind, your geniality, your unfailing courtesy to colleagues, to counsel, and to litigants in person who, like the poor, are always with us, particularly in the court of appeal. above all, we shall miss you and your gift of friendship, your sturdy independence, and your unflagging and effervescent enthusiasm. now you belong to history. but here you see around you a company of admirers and friends. we wish you well, both you and lady denning. come and see us often. wherever lawyers are gathered together they will always rejoice to see you in their midst. the attorneygeneral:my lord chancellor, my lords; i am here today with my learned friend the solicitor general, the chairman of the bar council, and many, many of my learned friends who have managed to squeeze into this court. i have to tell your lordships that many more are still outside. my lords, just over 36 years ago a young and nervous naval officer on demobilisation leave went to carr manor in leeds as a marshal to three high court judges, mr justice henn-collins, the distinguished criminal lawyer mr justice byrne, and the third was mr justice denning. the nerves were quickly calmed; the young marshal was welcomed and spoiled by his masters. one of the customs in those days was for the judges to lunch in the library at the assize court; and, inevitably, at lunch they discussed their cases. on these occasions mr justice denning was likely to remark, for example, "i think the case of mcmanus v. bowes covers this problem", at which stage the marshal would get to his feet and walk over to the shelves where the library was kept. then mr justice denning would go on and say, "i think you will find it in [1938] 1 king's bench in the judgment of lord justice slesser; i think at page 100." and if! was fast enough i got the book open. then he would go on and say, "i think it is the paragraph which starts, 'i would like to add a few words'." your lordship was always right. it was an attribute and an asset which i have no doubt has been of great value to you in your judicial life. my lords, the marshal at that time did not dream for one moment that all these years later as attorney general he would be saying farewell to that judge in the office of master of the rolls after such a distinguished career. my lords, may i be allowed one indiscretion from those marshalling days? a famous case had just been heard in the court of criminal appeal, and mr justice denning was to write the judgment. the case was called sims. when the judgment had been completed, your lordship handed it to laurie byrne to read. he read it and handed it back without comment. your lordship then said, 9 the denninglawjournal "well; what do you think about it?" mr justice byrne replied with one word a comment indicating dissent. (laughter). my lord, it took many years before the house of lords showed that mr justice byrne was right! my lords, there was a story going round the temple all those years ago, just after the high trees case, of a very gloomy barrister pacing up and down king's bench walk with a look of great depression. he was asked, "why do you look so sad?". he replied, "because i am the only barrister in the temple who has not had a brief as a result of the high trees case." (laughter). my lord, today is a sad day, partly because your lordship has given up your last vice, but also because this is truly the end of an era not only a,re there now no judges in the high court or the court of appeal who can stay on beyond 75, but because we have all become so used to knowing that, if the appeal was interesting enough, it was certain to end up before your lordship. (laughter). my lord, again if! may be a little indiscreet, this knowledge has perhaps shaped a certain amount of government policy over the years. (laughter). it is a useful weapon for government lawyers to be able to remind their administrators and even ministers that a ~ertain decision by them is very likely to come before lord denning. for my part, my lord, the protection you have always sought to give the citizen against bureaucracy has struck a strong chord of sympathy with me. i can also say how much i have always enjoyed appearing before your lordship. my lord, your brilliant career is too well known for me to catalogue today; it has been done by others. my task is to bid you farewell, and on behalf of the entire legal profession and all your many friends to wish you many years of contentment in retirement and to assure you of our greatest respect and our deepest affection. mr brown: my lord chancellor, my lords; i am in the privileged position of saying farewell to your lordship particularly on behalf of the junior bar. my lord, i shall not repeat the tributes paid to your lordship by those who have preceded me, although of course the junior bar adopts them with enthusiasm. rather i would wish to record a different feature of your lordship's reign a feature peculiarly at the heart of the junior bar and it is this: the sheer pleasure that we have always experienced in appearing in your lordship's court. my lord, it has ever been the most benign, the most indulgent and the most relaxed of courts; a court in which we could always look forward, upon sitting down, to being thanked with your lordship's radiant smile even for our most unhelpful contributions. (laughter). what seems to me a good illustration of your lordship's invariable kindness to counsel occurred earlier this year in the depths of that arctic winter. during a case in which many counsel leading and junior counsel were appearing, one senior (and not, i am sure he would forgive my saying, a peculiarly illustrious one) arrived very late an hour and a half late and we were all kept waiting. your lordship's court in due time assembled, and counsel embarked upon a 10 valedictoryspeeches profuse apology. your lordship quickly cut him short, not to upbraid him, not to suggest to him that he might sensibly have left home earlier, but rather to thank him for taking such pains to come at all so that the hearing could be continued. (laughter). indeed, your lordship congratulated him on overcoming the difficulties of his journey for all the world as if he had travelled in from antarctica and not from pinner. (laughter). one also has always felt, appearing before your lordship in court 3, that that is the very fulfilment of one's highest forensic dreams and aspirations; one felt at the very heart of the piccadilly circus of the legal scene. that fact indeed was forever confirmed by the number of people asking the way throughout the court corridors to the master of the rolls' court and by the size of the numbers of tourists sitting always at the back of it. my lord, it is perhaps some small indication of the affection in which your lordship is held by the entire legal profession that there are so many of us in court today and so many more who would wish to get in but cannot. rumours are rife that there are even some judges who have been seeking to impersonate ushers for gaining admission. my lord, it is abundantly clear that, if entry were by ticket, the touts would be having a field day and tickets would be changing hands at black market prices. my lord, obviously we are impoverished by your going, but nothing like to the extent that we feel enriched by the many marvellous years that you have been here. those of us privileged to have practised in your lordship's era and still more those of us like myself lucky enough to have appeared frequently in your lordship's own court will ever treasure that fact and continue to draw strength and guidance from it. my lord, we shall continue also, as will generations to come, to read your lordship's judgments in the reports; and how refreshingly easy it is to read them compared to so many others. we shall recall that short sentences are best and that verbs are optional! (laughter). my lord, as others have already rightly said, we shall of course miss you; but even that feeling is tempered by our hopes and, indeed, our expectations that we shall find you still amongst us in our newspapers (and one must include "private eye"), in our bookshops, on our television screens, and we trust above all in the precincts and the halls of the inns of court now happily all four of them. my lord, we would particularly like to be thought worthy of inclusion amongst the "nice people" whom your lordship has more than once said that you like to eat with and drink with before going to bed with a contented heart. my lord, we the junior bar most earnestly and sincerely wish you and lady denning well. mr ashe lincoln: my lord chancellor, it falls to me as the senior practising silk at the bar to speak third, and i suppose it might be to the contentment of all present if i were to assert what i believe to be the privilege of the third member of the court of appeal and say, "i agree and i have nothing to add"; but in fact, 11 the denning law journal my lord chancellor, i feel emboldened to add a word or two to what has already been said. i feel with respect, that i have a special privilege because it has been my happy fate during the course of my life to serve with members of the denning family in two different disciplines; and i know that my lord denning will not mind my mentioning the fact that i had the very great privilege of serving in the royal navy with his very great brother admiral sir norman denning, who of course served his country so well that few realised that the very existence of the country really depended upon the magnificent work which he did for the intelligence service of the royal navy. but the one outstanding characteristic which one always associates, if i may say so with respect, with the name denning is the humane consideration that one always received from members of that family; not only with a great sense of public service, as exhibited by my lord denning to the law and as exhibited by admiral denning to the royal navy and by his other distinguished brother who served in the army, but also, as has already been pointed out, the humane way in which one could always rely upon my lord denning to approach every human being and every problem. one only had to come into the court of appeal when some of those litigants in person were appearing; and, whilst one might have been excused for chafing at the bit at the amount of patience that the master of the rolls was showing to the litigant in person whilst one was waiting to come on with one's own matter before the court, being anxiously required elsewhere, nevertheless patience was always shown, directions were given, and advice was tendered from the master of the rolls to the litigant in person. never was his reaction infused with intemperance or impatience. in my long experience at the bar i remember so well my first appearance as a young junior in the court of appeal when the presiding judge was not of that patient temperament, and i had a very rough passage indeed. it made one appreciate all the more the kindliness and humanity and benevolence of lord denning when he presided over the court of appeal. so long as the common law exists, the name of lord denning will be revered and remembered not only in this country but throughout the world. i remember in the united states of america how greatly he is respected and how when i visited law colleges and law schools in that country i found that the students had embroidered their t-shirts with the words "root for denning". (laughter). it occurred to me that it might be a useful garment to wear before the court of appeal! (laughter). but, my lords, it was only their way of expressing that affection which is felt for lord denning by the whole of the bar. my lord, i join with those who wish you well in the future and much happiness in your retirement. valedictory speeches were also delivered by mr john platts-mills, qc. on behalf of the western circuit, mr joseph jackson, qc. representing the family law bar association and mr max williams representing the law society. 12 valedictoryspeeches the masterof the rolls: lord chancellor, mr attorney, president of the law society, and friends all; it moves me much to see such a great gathering here of you all. i have known it longer than you, you know. i first came into this building 60 years ago. i got to learn the practice and procedure in the bear garden, as i hope you have! {laughter}. i learned my advocacy before juries, if you please you do not have much chance. i cross-examined here. i sat as a judge here. i sat in the court of appeal. in fact, i know all about it! (laughter). i would remind you that this year this building has been here one hundred years. it was opened by queen victoria in the year 1882; and, if you want to know about it and you do not know your law reports, it is all reported in 10 queen's bench division. but there you are. the lord chancellor, lord selborne, received the key of this building from her majesty, and in his address he included these words: "your majesty's judges are deeply sensible of their own many shortcomings." i expect you, my lord chancellor, will know that lord justice bowen (then a member of the court of appeal) said, "that ought to be amended, you know." (laughter). "we are deeply sensible of one another's shortcomings." he was a great wit not like some of us! (laughter). that was one hundred years ago. but now, my lord chancellor and all my friends, you know, you have spoken much too flatteringly. i speak to you as oliver cromwell spoke to mr lely: "mr lely", he said, "i desire you to use all your skill to paint my picture truly like me and flatter me not at all. but remark all these roughnesses, pimples, warts and everything. otherwise i will not pay a farthing for it." there it is. there are lots of roughnesses, warts and pimples. i know them perfectly well. so do the house of lords! {laughter}. there it is, you know; i have had my day, and i say on a parallel to sir isaac newton: "i do not know what the world may come to think of me, but for myself i like to think of myself as a small boy playing by the seashore, and here and then finding a smoother pebble or a prettier shell than the rest while the great ocean of truth lay undiscovered before me." i may add, "while the great mass of our law lay unexplored." now, on this occasion, may i say how gratified i am that the members of the bar all should be here in such numbers. if i may say so, it is my belief that oral argument is one of the essentials and best ways to a correct decision. it was william temple who took the christian precept of love and said it found its primary expression in society in justice. he went on to say that the way it is to be achieved is that each side should state its case as strongly as it can before the most impartial tribunal available with determination to accept the word of the tribunal. that is our system here oral argument. i wish the sentiment which i have expressed also to be 'in the industrial field that in the industrial disputes that there are each side should state its case before the most impartial tribunal with determination to accept the award of the tribunal. william temple went on 13 the denning law journal to say: "for in that way the two parties are on a level, and they come nearer to the commandment 'thou shalt love thy neighbour as thyself." so much for the bar; but may i say also something of those mr max williams has spoken so kindly for all my friends amongst the solicitors of england and wales. i always like to think that in a way they are the background, servicing the profession. they do not get all the publicity, notice and so forth which members of the bar do. but my word they are of the very best. it is one of my proud duties that amongst my rolls is that of the rolls of solicitors. but i do like to say that they have and should have the command of language. i remember and like to give the picture of walter scott's in his guy mannering. the lay client, colonel mannering, goes into the lawyer's chambers, counsellor' pleydell. when he goes in, he finds the walls lined not with law books, but with books of history and literature (the great authors), and on the wall a painting by jamieson, the scottish painter. pointing to these books of history and literature, the lawyer says, "these are my tools of trade. a lawyer without history or literature is a mere mechanic; a mere working mason. if he have some knowledge of these, he may venture to call himself an architect", and that, if i may say so, either in giving judgment or in expressing it, i have tried and i think it is equally important to express oneself clearly so that all can understand. in speaking to the profession as a whole, i would remind you of that great essayist lord bacon. "i hold," he said, "every man a debtor to his profession. as men of course do seek countenance and profit, so ought they as a duty to endeavour always" as a duty "to be an ornament and help thereunto." there is the profession by which i am surrounded here today, and i know you are ornaments and helps to your profession. i would thank also at this time not only you. i would like to thank our law reporters mavis hill who was in my court for so many years; alan bray now. you know, for any reputation we have, any standing we have, a great deal depends on the law reporters. then there are our shorthandwriters who take down our hesitating words. not only them, but our ushers our staff. i have been privileged to have the best of clerks john king, ross chesney and now peter post. you do not realise how much we owe all those; they are an essential part of all our work. now i have brought something to show you! (laughter). a lady friend of ours, a parsee, a member of lincoln's inn, has been our friend for years. on behalf of the community a case was decided by lord justice ormrod and his colleagues in the court of appeal which won the approval of the parsee community in bombay; and she sent for the court of appeal this gift. i will tell you what she says: "here are seven elephants drawing a dainty silver carriage. the square piece on the rear of the carriage has the single word 'justice' inscribed on it. all the elephants are engaged in the task of pulling the carriage of justice along the narrow white path, the straight and narrow road." then she says, after referring 14 valedictory speeches to the three pale brown elephants: "the great white elephant has no tusks for he does not need tusks to do his work in nature. this elephant's mind and thought force power is so highly developed in nature that he can do the work of spreading justice and maintaining the divine law and order among all souls ... this elephant represents you, lord denning, (laughter), as the greatest force for truth and justice tempered with mercy, alive today." there they are then. i will leave it for you to keep this as a present to the court; but i laughed at her last wish: "i wish you would place this figure in some room in the law courts building where all your judges can see it, for it would serve as a constant reminder to them that justice must ever be done, and the time may come in the future when the great white elephant may no longer be in their midst." (laughter). the time has come. one gets older i am 83 and my wife is 82 we have carried on all this time. i have parodied lewis carroll: '''you are old,' master of the rolls, the young man said, 'and your hair is getting very white; and yet you incessantly stand on your head do you think, at your age, it is right?' 'in my youth,' the master replied to his son, 'i feared it might injure the brain; but, now i am perfectly sure i have none, why, i do it again and again'." (laughter). i do not think i had better try standing on my head any more because there are lots of people to take care of me now. but i would just like to say how moved i am, and how grateful i am to all of you for the wonderful support you have given us over the years all my colleagues here on the bench; all you at the bar; all the solicitors, and friends everywhere. thank you very much. i wish i could say, as a great man did once, "i fought a good fight; i finished the course; i have kept the faith." 15 207 the denning law journal 2018 vol 30 pp 207-217 religious freedom and the australian constitution – origins and future luke beck (routledge 2018) pp 178 jocelynne a. scutt* * senior teaching fellow, university of buckingham. 1 ‘2016 census data reveals ‘no religion’ is rising fast’ (australian bureau of statistics) <http://www.abs.gov.au/ausstats/abs@.nsf/mediareleasesbyreleasedate/ 7e65a144540551d7ca258148000e2b85> accessed 10 october 2018. 2 ibid. 3 ibid. the most recent australian census, conducted by the australian bureau of statistics (abs) in 2016 (with a 95.1 per cent response rate), confirms that australia is ‘increasingly a story of religious diversity, with hinduism, sikhism, islam, and buddhism all increasingly common religious beliefs’.1 of these, between 2006 and 2016 hinduism shows the ‘most significant growth’, attributed to immigration from south east asia, whilst islam (2.6 per cent of the population) and buddhism (2.4 per cent) were the most common religions reported next to christianity, the latter ‘remaining the most common religion’ (52 per cent stating this as their belief). nevertheless, christianity is declining, dropping from 88 per cent in 1966 to 74 per cent in 1991, and thence to the 2016 figure. at the same time, nearly one-third of australians (30 per cent) state they have no religion,2 this group reflecting ‘a trend for decades’ which, says the abs, is ‘accelerating’: those reporting no religion increased noticeably from 19% in 2006 to 30% in 2016 [with] the largest change … between 2011 (22%) and 2016, when an additional 2.2 million people reported having no religion.3 in this, there were not insignificant differences between the states: tasmania reported the lowest religious affiliation rate (53 per cent), whilst new south wales had the highest rate (66 per cent). age was a significant factor, both in terms of particular religious affiliation and in the ‘no religion’ category. those aged sixtyfive years or more were more likely to profess an adherence to christianity. young adults aged between eighteen and thirty-four years had a greater likelihood of 208 book reviews affiliation with religions other than christianity (12 per cent) or to state they had ‘no religion’ (39 per cent).4 yet just as in the united states, despite ‘separation of church and state’, the george w bush administration (2001–09) promoted a strongly religious approach,5 and in the united kingdom tony blair when prime minister (1997–2007) had religion as a guide,6 in australia prime minister john howard (1996–2007) followed suit.7 the emphasis upon religion – that is, christianity – was in the australia context straying into territory generally seen as ‘foreign’ to government.8 this was more so, in light of the increasing numbers professing no religion. against this backdrop, the publication of luke beck’s religious freedom and the australian constitution – origins and future is opportune. the book begins with the tale of a bricklayer, setting the scene for an historical account of the impact one religion in particular, seventh day adventism, had upon efforts taken to ensure that the australian constitution would incorporate a ‘religious freedom’ condition. beck recounts how constable thomas burke of the sydney police confronted robert shannon who was engaged in building a brick and cement house in inner-sydney’s albion street, leichhardt. the day was sunday, shannon was a seventh day adventist, and the sunday observance act 1677 was operative in new south wales. this made it unlawful for any ‘tradesman, artifice workeman labourer or other person whatsoever’ to ‘do or exercise any worldly labour, busines or worke of their ordinary callings upon the lords day or any part thereof (workes of necessity only excepted)’.9 shannon’s protest that 4 ibid. 5 see george w bush, decision points (crown publishing group 2001) providing an insight into his religious commitment. 6 his autobiography covering his political career confirms the religious underpinnings of his life and work. see tony blair, a journey – my political life (random house 2010). 7 john howard, lazarus rising – a personal and political biography (harpercollins 2010) attests to his religious beliefs as important to his standing. 8 renae barker, ‘is australia a secular country? it depends what you mean’ (the conversation) <https://theconversation.com/is-australia-a-secular-country-it-depends-what you-mean-38222> accessed 7 november 2018; amy chien-yu wang, ‘freedom of religion and secularism in australia’ (sbs radio – settlement guide, 27 october 2017) <https://www.sbs.com.au/radio/audiotrack/freedom-religion-and-secularism-australia> accessed 5 november 2018; graham innes, ‘are we really the secular nation we think we are?’ (australian human rights commission, 20 november 2009) <https://www. humanrights.gov.au/news/opinions/are-we-really-secular-nation-we-think-we-are-2009> accessed 5 november 2018. 9 quoted by luke beck, religious freedom and the australian constitution,1 (hereafter ‘beck’). the denning law journal 209 for him ‘the lords day’ or ‘sabbath’ was not sunday, but saturday, was to no avail. on 9 august 1894 shannon appeared at glebe police court where he and burke gave evidence of their encounter. then followed arguments incorporating theology, a proclamation made by victoria in 1858, and a request for an adjournment, all presented articulately by shannon. yet despite his submissions, shannon stood convicted and ‘fined 2 shillings 6 pence and costs, or in default to be set publicly in the stocks for two hours’.10 opting for the stocks proved to be his saving. stocks being unavailable, the proposition that they should be built especially for shannon and that he would be displayed publicly in the streets created such furore – going beyond sydney to melbourne and engaging the oratorical attention of a united states identity – that upon the government’s advice, the governor remitted the sentence.11 this prosecution and others before it propelled the seventh day adventist church into action, ensuring their continuing attention to proposals for fashioning a federation out of the australian colonies. their influence in the constitutional convention debates is recounted by beck, who observes that henry bournes higgins, a principal player in the formulation of the constitution, was largely motivated by the desire to ensure that this religious group along with others could support federation.12 section 116 of the australian constitution, the provision known by the shorthand term ‘religious freedom’, provides: the commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the commonwealth. in 12 chapters, religious freedom and the australian constitution recounts the history of section 116, what motivated its wording and constitutional inclusion, its relation to the constitution’s preamble and what its terms actually mean – or may mean, efforts to amend it during the conventions and in the following century, its interpretation by the high court, and its future. readers may be surprised to learn that section 116 began its life as a provision not relating to the powers of the commonwealth, but to those of the states. the states’ provision preceded the formulation of the commonwealth provision then, when andrew inglis clerk, attorney general for tasmania, prepared a draft 10 beck (n 9) 2. 11 beck (n 9) 2–3. 12 beck (n 9) 103–04. 210 book reviews constitution bill to provide the basis for discussion at the 1891 convention, both states (‘provinces’ in the draft) and commonwealth were covered by stipulations relating to religion:13 46. the federal parliament shall not make any law for the establishment or support of any religion, or for the purpose of giving any preferential recognition to any religion, or for prohibiting the free exercise of any religion. … 81. no province shall make any law prohibiting the free exercise of any religion. ultimately, the impetus for requiring the states to refrain from controls over or interference with religious observance or religion itself was lost, so that the commonwealth alone wears any constitutional constraints covering religion. yet, as beck points out, there is no universal agreement as to what section 116 in all its terms actually means. religious freedom and the australian constitution outlines the very different positions taken by justices ninian stephen and lionel murphy in the 1981 high court decision attorney-general (vic); ex rel black v commonwealth.14 the majority decided that federal funding of religious schools did not violate the establishment clause of section 116, stephen (in the majority) calling upon english jurisprudence in support, murphy (in dissent) asserting that the provision was framed not with regard to the united kingdom, but to the united states. although concluding that neither stephen nor murphy was correct in stipulating one or the other as the origin, beck nonetheless concedes15 the logic of murphy’s view in that the first amendment of the us constitution provides that congress ‘shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…’ additionally, article iv states: ‘…no religious test shall ever be required as a qualification to any office or public trust under the united states’. as it is, beck considers that the ‘starting point’ of any determination as to the meaning of section 116 should be the history of the provision in its australian context – beginning with the constitutional conventions. the starting point should not lie with the united kingdom as a whole, nor with england, nor with the united states. accordingly he thoroughly relates the australian history through eight of his twelve chapters: chapter 1, ‘a sabbath breaker in the stocks’, chapter 2, ‘arguing for a religious character to the australian constitution’, 13 beck (n 9) 79. 14 [1981] hca 2, 146 clr 559. 15 ibid 5. the denning law journal 211 chapter 3, ‘arguing against a religious character to the australian constitution’, chapter 4, ‘a constitutional recognition of god’, chapter 5, ‘a constitutional prohibition against religious laws’, chapter 6, ‘the argument for section 116’, chapter 7, ‘the language of section 116’, and chapter 8, ‘the original understanding of section 116’. all are well-worth reading, bringing to life as they do the constitutional debates, the delegates, the drafts, the characters, the personalities and the arguments. for those with a passion for philosophy, chapter 9 will be of particular notice, traversing as it does ‘what is the point of section 116’ by reference to ‘the neutrality theory’, ‘the safeguard against religious intolerance theory’, ‘comparing the two theories’, ‘why the neutrality theory is wrong’ and ‘why the safeguard against intolerance theory is right’. for the parliamentary draftsperson and all possessing a passion for legislative drafting and statutory interpretation, chapter 8, ‘the original understanding of section 116’ will be of some interest. beck explores the meaning and understanding of the word ‘for’, along with ‘establishment’, ‘religious observance’, ‘free exercise’ and ‘religious tests’. necessarily, it may be said, he makes reference also to ‘american jurisprudence’, ending the chapter with the conclusion that the federal convention ‘was not concerned with precise meanings’, at least insofar as the ‘religion’ provision was concerned.16 ultimately he observes, ‘the precise language’ of section 116 ‘did not receive close attention by the convention’,17 and perhaps thereby its language ‘is rather haphazard’.18 as it proved, the provision went through without demur, although (or perhaps because) many present thought it unnecessary as they considered the federal parliament had no power in relation to religion in any event.19 again perhaps because of this inattention to the language, the 1940s and the second half of the 20th century saw efforts to amend section 116. these gave rise to referenda addressing its scope. in chapter 10, ‘hv evatt’s attempts to amend section 116 in the 1940s’, beck recounts the history of the 1940s push, the brainchild of dr h v evatt who served in the new south wales lower house – the legislative assembly (1925–30) then was appointed to the high court in 1930, serving until 1940 when he retired to stand for the federal parliament. there, he was attorney general in a labor government (1941–49) and eventually leader of the labor opposition (1951–60), then chief justice of the supreme court of new south wales (1960–62). he proposed a new section 60a incorporating, amongst other matters, four freedoms – freedom of speech and expression, religious 16 ex rel black (n 14) 98–129. 17 ex rel black (n 14) 96. 18 ex rel black (n 14) 97. 19 ex rel black (n 17). 212 book reviews freedom, freedom from want, and freedom from fear. his proposition was that whilst section 116 operated simply as a ‘shield’ against encroachments on religious freedom, the new provision would re-orientate the constitutional profile with section 60a providing ‘a sword wielded by the commonwealth to bring about religious freedom in practice’.20 the aim was to ensure constitutional recognition of ‘the great ends of economic security, social justice and individual freedom’. it faltered, however, when the referendum bill failed to proceed beyond first reading in the house of representatives.21 evatt was not defeated. as beck points out, the government then convened a constitutional convention including from the house of representatives evatt and three of his colleagues, plus four opposition members, and four from the senate, together with each state’s premier and leader of the opposition. evatt composed a short volume as a basis for convention discussion, which included a paragraph seeking to define religious freedom as it appeared in his original bill: freedom of religion – means (a) freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen; (b) that no person shall be subject to any disability or be required to take any oath on account of his religion or religious belief, and no religious test shall be imposed in respect of the appointment to or holding of any public office; (c) that no law shall be made for establishing any religion or for imposing any religious observance or for prohibiting the free exercise of any religion.22 analysing the paragraph and observing that this is ‘not really’ a definition, beck notes that in the end evatt sought simply to rework the existing section 116. the convention concluded without advancing the ‘freedom of religion’ question further, with the ‘only significant comment’ being that ‘constitutional guarantees of religious freedom [are] unnecessary in australia’.23 in 1944 evatt tried again with another bill to amend the constitution. this included amongst other ‘safeguards’ one which sought to apply the prohibitions of section 116 to the states.24 this took the matter back to the original 1890s 20 ex rel black (n 14) 132. 21 ex rel black (n 14) 133. 22 h v evatt, post-war reconstruction: a case for greater commonwealth powers (commonwealth government printer 1942) 11; cited by beck (n 9) 134. 23 beck (n 9) 137 (quoting robert menzies – who had served as prime minister (1939– 41), though then a backbencher). 24 ibid. the denning law journal 213 constitutional convention position. the proposal foundered along with all the other provisions when the referendum, held on 19 august 1944, was lost, failing to obtain the required national majority and gaining majorities in two states only, western australia and south australia.25 beck recounts the parliamentary and public debates surrounding the referendum, contrasting evatt’s approach with that of robert menzies, later to become leader of the liberal party of australia and prime minister (1949–66). beck provides an insightful consideration of evatt’s reliance on us jurisprudence, as against menzies’ competing scepticism about what today would be called ‘the human rights project’.26 chapter 11, ‘post-war attempts to amend section 116’ covers the ground from 1973 to 1988, ‘the australian constitutional convention of 1973–85’, ‘whitlam’s attempt to extend section 116 to the states’, ‘the constitutional commission of 1985–88’ and ‘the 1988 rights and freedoms referendum’. beck observes that the 1981 ‘dogs’ case – ‘defence of government schools’ – which sought to ensure that public funding was directed to the secular government education system, and not to schools founded upon religions,27 gave an added impetus to attempts to clarify or amend section 116.28 he quotes the replacement provision proposed by the movement for the defence of government schools: 116. a state shall not, nor shall the commonwealth, make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under a state or under the commonwealth.29 other submissions to the constitutional convention similarly advocated extending section 116 to the states. however, this effort, as evatt’s before it, failed. so did the other attempts of the 1970s and 1980s, all notably driven by labor governments.30 25 h v evatt cited by beck (n 22) 139–40. 26 h v evatt cited by beck (n 22) 139–42. 27 attorney-general (vic), ex rel black v commonwealth (‘dogs’ case’) [1981] 146 clr 559. 28 ibid, 143–44. 29 dogs case (n 27) 144. 30 dogs case (n 27) 145–48 (whitlam labour government), 148–55 (hawke labour government). 214 book reviews beck’s concluding chapter 12, ‘the future of section 116’ provides an astute discussion under headings ‘how does section 116 provide a safeguard against religious intolerance?’, ‘section 116 is concerned with the practical operation of laws’, ‘section 116 should not be interpreted narrowly’, ‘section 116 should be interpreted to avoid religious intolerance on the part of the commonwealth’, and ‘the future of section 116’. liberal prime minister john howard’s introduction of the ‘school chaplaincy programme’ provides a good basis for beck’s wrapping up discussion. in 2007, this programme was introduced under guidelines describing it as ‘a voluntary programme that will assist schools and their communities to support the spiritual well-being of their students’.31 the commonwealth granted funding under contracts with organisations providing chaplains to schools. this generated concern within that part of the australian community holding that the provision of such services is to support religion within the school sector and breach section 116. williams v commonwealth (‘the schools chaplains case’) was run on the basis that the programme guidelines ‘implemented a religious test for a public office or trust under the commonwealth’. beck provides a short analysis of the judgment and reasoning, the high court upholding the programme on the basis not that there was no religious test involved, but that ‘the position of a school chaplain was not “under the commonwealth”’.32 the commonwealth made payments ‘only … once it had received programmes reports about the provision of chaplaincy services’, and ‘could also directly monitor the work of chaplains by conducting visits to schools and by seeking feedback about their work’.33 the high court concluded that the chaplains ‘held no office under the commonwealth’.34 ‘under’, they said, ‘indicates a requirement for a closer connection to the commonwealth than that presented by the facts of this case’.35 there was, therefore, no breach of section 116. beck disagrees, concluding that this determination runs counter to an interpretation of section 116 as designed to ‘avoid religious intolerance on the part of the commonwealth’. surely ‘religious intolerance’ is, runs becks argument, that at which the provision aims. he contends that had the high court considered this as the guiding light for section 31 dogs case (n 27) 164 (citing department of education, science and training (cth), national school chaplaincy programme guidelines 19 january 2007). 32 ibid. 33 ibid. 34 dogs case (n 27) 165 (quoting justice gummow and justice bell, chief justice french and justices hayne, crennan and kiefel concurring in williams v commonwealth [2012] 248 clr 156, [109]–[110]). 35 ibid. the denning law journal 215 116 (which, he proposes, it ought), ‘the high court’s decision … is likely to have been different’.36 in the upshot, the plaintiff in williams v commonwealth, ron williams – an atheist whose children attended a school which employed a chaplain, won because the high court held that the commonwealth could not fund the programme without legislation passed by the federal parliament. ultimately, however, williams lost for (on top of the restrictive and restricting interpretation of section 116) legislation was duly passed and the programme continued, despite considerable objection.37 however, it does not continue unchallenged, most recently by a chaplain claiming discrimination on religious grounds as, although employed by three schools, she was refused employment in primary schools on the ground of her not being a christian.38 in the victorian civil and administrative tribunal (vcat), the claimant’s argument was reported as finding support in williams and justice heydon’s view that the work to be undertaken by ‘chaplains’ ‘could have been done by persons who met a religious test [and] could equally have been done by persons who did not’.39 unfortunately, beck’s book went to press before the vcat case was launched, and the vcat proceeding had reached 36 ibid. 37 theophilus, ‘so what’s the problem with government-funded chaplains in state schools?’ (the conversation, 19 june 2014), <http://theconversation.com/so-whats-theproblem-with-government-funded-chaplains-in-state-schools-28211> accessed 19 november 2018; paul karp, ‘secular groups call for review of “blatantly discriminatory” schools chaplaincy program’ the guardian (1 april 2018) <https://www.theguardian. c om /aust r a l ia-news / 2 018/ap r/ 01/s e cu la r-g r oup sca l l-for-r ev iewof-blat a nt lydiscriminatory-school-chaplains-program> accessed 19 november 2018; paul karp, ‘school chaplains: secular groups say review is proof of religious proselytising’ the guardian(31 may 2018) <https://www.theguardian.com/australia-news/2018/jun/01/school chaplains-secular-groups-say-review-is-proof-of-proselytising> accessed 19 november 2018; paul karp, ‘school chaplains agency faces tax challenge over $33m in donations’ <https://www.theguardian.com/world/2018/sep/23/school-chaplains-agency-faces-taxchallenge-over-33m-in-donations> accessed 19 november 2018. 38 amy remeikis, ‘school chaplains legal challenge argues program is discriminatory’ the guardian (13 june 2018) <https://www.theguardian.com/australia-news/2018/jun/14/ school-chaplains-legal-challenge-argues-program-is-discriminatory> accessed 19 november 2018. 39 ibid; see also damien hurst, ‘budget: it will be chaplains, not social secular workers, in schools’ (14 may 2014) <https://www.theguardian.com/world/2014/may/14/ budget-it-will-be-chaplains-not-secular-social-workers-at-schools> accessed 19 november 2018. 216 book reviews compulsory conference stage only by december 2018,40 so religious freedom and the australian constitution does not include reference to it. the book was completed, too, before the turnbull government launched its ‘review into religious freedom’. conducted by a former liberal party mp, philip ruddock, this caused further consternation on the part of those opposed to religion being intertwined with government. the impetus appeared to come from those within government opposed to gay marriage (the right to which had been won resoundingly in a plebiscite) and to equal opportunity and discrimination legislation which made religious discrimination unlawful.41 still, beck ends religious freedom and the australian constitution on a note that the ‘separation of state and religion’ lobby should find heartening. albeit concluding that section 116 is ‘unlikely to be amended to apply to the states [as] every attempt at doing so has failed, the most recent … suffering the worst defeat of any referendum in australian history’, beck sees section 116 as ‘not … without future prospects’.42 the high court, he says, ‘has seriously misunderstood the point’ of section 116, and its ‘reasoning … is seriously flawed’ in section 116 cases.43 he ends the book with the words: section 116 has the potential to provide a pragmatic safeguard against religious intolerance on the part of the commonwealth, if only the high court understood its history.44 this is on the one hand a strong claim. on the other, for those who have had an abiding interest in section 116 and its place in the constitution as one of the few human rights provisions contained in it, beck’s book provides a welcome contribution. beck avers that his book ‘provides the history’ crucial to future high court decision-making. all who hope for a more reflective jurisprudential analysis 40 advice from associate professor beck, who acts for the claimant at vcat: e-mail advice, 27 november 2018. 41 paul karp, ‘philip ruddock’s religious freedom review holding secret hearings’ the guardian (7 february 2018) <https://www.theguardian.com/australia-news/2018/ feb/08/philip-ruddocks-religious-freedom-review-holding-secret-hearings> accessed 19 november 2018; paul karp, ‘ruddock religious freedom review: what is it and what do we know so far’ the guardian (october 11 2018) <https://www.theguardia.com/ australia-news/2018/oct/11/ruddock-religious-freedom-review-what-is-it-and-what-do-weknow-so-far> accessed 19 november 2018. 42 ibid 165. 43 ibid. 44 ibid. the denning law journal 217 of section 116 by the high court, and who are interested in australian constitutional law generally, will agree. every high court judge and those aspiring to the position should have the book on their bookshelves and, more, read it. for those without such aims, the book is one worthy of being not only on the shelf, but on the desk and well read. religious freedom and the australian constitution is an important addition to australian constitutional law and scholarship, and will please the general reader, too. unincorporated associations: property holding, charitable purposes and dissolution 291 denning law journal 2015 vol 27 pp 291-302 case commentary election petitions and the standard of proof john hatchard  1. introduction in bater v bater 1 denning lj stated that: “… in civil cases, the case may be proved by a preponderance of probability, but there may be degrees of probability within that standard”. 2 he added that a higher degree of probability would be required where a civil court was considering a charge of fraud than when considering whether negligence had been established. even so, a court was not required to adopt “so high a degree as a criminal court, even when it is considering a charge of a criminal nature”. 3 in hornal v neuberger 4 he again suggested that: “the more serious the allegation the higher the degree of probability that is required: but it need not, in a civil case, reach the very high standard required by the criminal law”. 5 courts and tribunals in several jurisdictions have considered the proposition that an “intermediate” standard of proof or even the criminal standard of proof is applicable in a range of civil proceedings. these have involved, for example, cases concerning allegations of fraud, 6 allegations  professor of law, buckingham law school. 1 [1951] p 35. 2 ibid 37. 3 ibid. 4 [1957] 1 qb 247. 5 ibid 258. 6 in addington v texas (1979) 441 us 418, the supreme court of the united states recognised an intermediate standard in the form of “clear and convincing” evidence in civil cases involving allegations of fraud and other quasi-criminal case commentary 292 of professional misconduct, 7 matrimonial issues, 8 child protection proceedings, 9 and contempt of court in civil proceedings. 10 this note explores the issue of the standard of proof in relation to presidential election petitions and reviews two recent decisions by the apex courts in kenya and ghana. these are of particular interest given the very different approach of the uk courts to election petitions (noted below) and epitomised in the case of erlam and others v rahman and others. 11 2. the presidential petition cases disputes as to whether a presidential or parliamentary election was “free and fair” 12 can inevitably raise considerable tensions with the losing candidates often alleging vote-rigging, corruption, bribery and other electoral malpractices by their opponents. 13 allegations of such wrongdoing. another example is found in the international cricket council‟s anti-corruption code for participants. this includes a series of corruptionrelated offences and makes provision for a formal hearing of allegations by the icc anti-corruption tribunal against any person suspected of breaching the code. article 3.1 provides as follows: “... the burden of proof shall be on the icc in all cases brought under the anti-corruption code … and the standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt”. 7 in re a solicitor [1993] qb 69 it was held that allegations of professional misconduct before a solicitors‟ disciplinary tribunal were to be proved to the criminal standard where an allegation amounted to a criminal offence. 8 preston-jones v preston-jones [1951] ac 391 but see now the family law reform act 1969, s 26. 9 in re h (minors) [1996] ac 563 the house of lords overruled earlier decisions and held that the standard of proof was the normal balance of probability in such cases. 10 re bramblevale ltd [1970] ch 128. 11 [2015] ewhc 1215 (qb). 12 a right enshrined in numerous international and regional instruments including the international covenant on civil and political rights (article 25) and the african charter on democracy, elections and governance (chapter 7). see also part i of the charter of the commonwealth. 13 see the discussion in john hatchard, peter slinn & muna ndulo, comparative constitutionalism and good governance in the commonwealth: an eastern and southern african perspective (cambridge university press, cambridge 2004) 62. of course, some of the activities of the losing candidate(s) and their supporters may also involve similar practices. the denning law journal 293 malpractice involving the election of a directly elected president who is both head of state and head of government 14 are of particular concern as they raise issues of the highest political, social and economic importance and sensitivity. especially in small and/or ethnically divided states, the ensuing uncertainty and discontent can have far-reaching repercussions. this is epitomised by the violence in kenya in 2007-8 which followed a disputed presidential election and which led to the deaths of over one thousand people and the displacement of over 600,000. 15 it is therefore essential to have in place a credible and transparent system to address allegations of electoral malpractice. whilst electoral commissions often have general responsibility for the settlement of disputes prior to the election itself, the traditional approach in common law countries is for post-election challenges to be brought to the appropriate court by way of an election petition. given that the allegations by the unsuccessful presidential candidate(s) often include charges of criminal or quasi-criminal conduct on the part of the respondent(s), a key issue in every case concerns the standard of proof to be applied by the court. here there is a divergence of opinion as to the appropriate standard and this is well-illustrated by the cases under review (known collectively as the “presidential petition” cases). both have similar facts. first the kenyan case. in odinga v independent electoral and boundaries commission and others, 16 (the odinga case) following the presidential election in 2013 in kenya, uhuru kenyatta was declared the president-elect. a successful presidential candidate required an overall majority of the valid votes cast. mr kenyatta received 50.7% of the votes cast. 17 the unsuccessful challenger, raila odinga then lodged an election petition averring that “the electoral process was so fundamentally flawed that it precluded the possibility of discerning whether the presidential results declared were lawful”. 18 here the main complaint was that the 14 as well as being commander in chief of the armed forces. 15 for a disturbing account of the post-election violence see generally the final report of the truth and reconciliation commission of kenya, nairobi 2013. 16 [2013] eklr: available at http://www.kenyalaw.org/casesearch/view_preview1.php?link=3777936669285 3178723650 (accessed 1 august 2015). 17 according to the independent electoral and boundaries commission mr uhuru kenyetta received 50.7% of the votes cast whilst mr raila odinga had received 43.31%. 18 odinga (n 16) [15]. http://www.kenyalaw.org/casesearch/view_preview1.php?link=37779366692853178723650 http://www.kenyalaw.org/casesearch/view_preview1.php?link=37779366692853178723650 case commentary 294 election was not carried out in accordance with the electoral law with alleged defects in the voters register being the main cause for concern. in the ghanaian case of akufo-addo v mahama 19 (the mahama case), according to the ghana electoral commission, in the 2012 presidential election of the almost 11 million votes cast, mr john mahama received 50.7% whilst mr nana akufo-addo had received 47.74%. article 63 of the constitution of ghana requires the successful presidential candidate to receive more than 50% of the valid votes cast. a loss of just 154,000 votes would have required a run-off between mr mahama and mr akufo-addo. in his petition, mr akufo-addo alleged that a series of electoral malpractices had affected the outcome of the election. indeed atuguba jsc in the supreme court of ghana noted that “it is clear that the irregularities associated with the 2012 presidential election were substantial”. 20 as regards the burden of proof, the courts in both the odinga and mahama cases adopted the approach of the uganda supreme court in the besigye v museveni, 21 another presidential petition case. here it was held that the burden of proof in election petitions lies on the petitioner to prove not only that there had been non-compliance with the law but also that such failure affected the validity of the election itself. 22 the court then added that the “… only controversy surrounds the standard of proof required to satisfy the court”. 3. what is the standard of proof in presidential petition cases? there are three markedly different approaches considered in the presidential petition cases. 19 the case is seemingly unreported but a copy of the lengthy judgment is available at http://judicial.gov.gh/files/nana_addo_dankwa_akufo_addo__ors_ _vrs__john_dramani_mahama__ors.pdf. (accessed 1 august 2015) all page references to the case in this note refer to this report. 20 99. 21 [2001] ugsc 3. this report is seemingly not readily available and for the purposes of this note, the judgment used is found at http://www.ulii.org/ug/judgment/constitutional-law-election-petitions/2001/3 (accessed 1 august 2015). regrettably, this contains no page numbering nor numbered paragraphs. 22 see odinga (n 16) [196] and mahama 122. http://judicial.gov.gh/files/nana_addo_dankwa_akufo_addo__ors__vrs__john_dramani_mahama__ors.pdf http://judicial.gov.gh/files/nana_addo_dankwa_akufo_addo__ors__vrs__john_dramani_mahama__ors.pdf the denning law journal 295 apply the criminal standard of proof there is some jurisprudence to support the argument raised by the respondents in the odinga case that given the seriousness of the allegations, a presidential election petition becomes a quasi-criminal matter which requires the court to impose the criminal standard of proof. 23 this reflects the view of the supreme court of india in shri kirpal singh v shri v v giri 24 that: “although there are inherent differences between the trial of an election petition and that of a criminal charge in the matter of investigation, the vital point of identity for the two trials is that the court must be able to come to the conclusion beyond any reasonable doubt as to the commission of the corrupt practice”. similarly, the decision of the supreme court of nigeria in nwobodo v onoh 25 is one of a series of cases in which nigerian courts have held that allegations of criminal activity in relation to election petitions must be proved to the criminal standard. 26 this view was supported by anin yeboah jsc in the mahama case who asserted that “it is only when crime is pleaded or raised in evidence that the allegation sought to be proved must be proved beyond reasonable doubt”. 27 this approach also reflects the position in the united kingdom. thus in the erlam case, 28 the petitioners petitioned to have a local election in the london borough of tower hamlets set aside on several grounds, principally alleging that the respondent or his agents had indulged in corrupt and illegal practices contrary to the representation of the people act 1983. in his judgment, commissioner mawrey qc recognised that an election court is a civil court and not a criminal court. 29 however, 23 [181]. for an interesting argument that the criminal standard of proof should be applied to all civil cases involving allegations of criminal conduct see ennis mcbride, „is the civil “higher standard of proof” a coherent concept?‟ (2009) 8(4) law, probability and risk 323. 24 1971(2) scr 197; 1970(2) scc 567. 25 [1984] 1 sc 1; (1983) 14 nscc 470. 26 see also buhari v obasanjo (2005) 13 nwlr (pt. 941) 1 and agagu v mimiko [2009] all fwlr (pt. 462) 1122. 27 460. 28 erlam and others v rahman and others (n 11) 29 [45]. case commentary 296 following the court of appeal decision in r v rowe ex p. mainwaring 30 he noted that: “there was no controversy at the hearing about the standard of proof the court must apply to charges of corrupt and illegal practices. it is settled law that the court must apply the criminal standard of proof, namely proof beyond reasonable doubt”. 31 require the petitioner to establish the case on a balance of probabilities in the well-known case of jugnauth v ringadoo and others, 32 the judicial committee of the privy council affirmed the decision of the supreme court of mauritius, nullifying the election of the appellant, a member of parliament and minister of the government. lord rodger of earlsferry, giving the judgment of the board emphasised that “there is no question of the court applying any kind of intermediate standard” and accordingly: “it follows that the issue for the election court was whether the petitioner had established, on the balance of probabilities, that the election was affected by bribery in the manner specified in the petition.” 33 this view is reflected in the mahama case where the majority of the judges of the supreme court adopted the approach of atuguba jsc who was content to apply section 12 of the evidence act 1975 which provided that the standard of proof is by a “preponderance of probabilities”. 34 in doing so, he emphasised that “the standard of proof in especially election petitions, a species of a civil case, is on the balance of probabilities or preponderance of probabilities”. 35 30 [1992] 1 wlr 1059. 31 [47]. 32 [2008] ukpc 50. 33 [17] and [19]. 34 section 12(2) reads: „“preponderance of probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence‟. 35 at 62. a similar view was taken by owusu jsc (199 et seq), dotse jsc (316), baffoe-bonnie jsc (517) and akoto-bamfo jsc (570). the denning law journal 297 apply an intermediate standard two earlier decisions from commonwealth african courts had supported this approach. in lewanika and others v chiluba 36 the petitioners had alleged that there was bribery, fraud and other electoral irregularities in a presidential election in zambia and sought its nullification. ngulube, cj, giving the judgment of the court, stated: “… we wish to assert that it cannot be seriously disputed that parliamentary election petitions have generally long required to be proved to a standard higher that on a mere balance of probability.” no authority was cited for this statement but it formed the basis of the holding that: “… where the petition has been brought under constitutional provisions and would impact upon the governance of the nation and the deployment of the constitutional power and authority, no less a standard of proof is required. it follows also the issues raised are required to be established to a fairly high degree of convincing clarity”. 37 similarly, in besigye v museveni 38 the unsuccessful presidential candidate had alleged that the respondents were responsible for a series of offences and other illegal electoral practices. odoki cj having referred to the decision of denning lj in bater v bater 39 with approval, asserted that in election petitions the “standard of proof is very high because the subject matter of the petition is of critical importance to the welfare of the people of uganda and their democratic governance”. 40 the supreme court of kenya in the odinga case, considered these cases and also adopted the “higher standard of proof” approach holding that: 36 [1999] 1 lrc 138. 37 no page numbers are provided in the electronic version of the relevant law report. 38 besigye (n 21). 39 n 1. 40 84. case commentary 298 “the threshold of proof should, in principle, be above the balance of probability, though not as high as beyond reasonable doubt: save that this would not affect the normal standards where criminal charges linked to an election, are in question”. 41 similarly, in the mahama case, adinyira jsc noted the need for “high standards of proof” in cases imputing election malpractice and concluded, without further consideration, that the “threshold of proof should, in principle, be above the balance of probability”. 42 4. which standard of proof to apply? applying the criminal standard raises significant issues. as omotola has pointed out, there are already numerous obstacles facing those seeking to bring an electoral petition and “the huge cost of seeking electoral justice, the undue protraction of litigation, and the seeming lack of independence of the judiciary, have served to limit the reach of electoral justice”. 43 in the erlam case, commissioner mawrey qc noted the “enormous courage” required by a private citizen to bring an election petition and that “if things go wrong and the petition is dismissed, the petitioners face a potentially devastating bill of costs which … may well bankrupt them”. 44 thus placing on petitioners an additional hurdle of satisfying the criminal standard of proof is surely unacceptable. even where there are allegations of criminal or quasi-criminal conduct made against the respondents, an election petition is fundamentally different to a criminal case and it follows that the courts in the presidential petition cases rightly recognised this point. 45 the view contrasts starkly with that of the court of appeal in r v rowe. 46 here the court of appeal was considering an appeal from the 41 [203]. emphasis in the original. 42 122-123. 43 shola omotola „explaining electoral violence in africa‟s “new” democracies‟ at page 52: available at www.ajol.info/index.php/ajcr/article/download/63320/51203 (accessed 1 august 2015). 44 erlam and others v rahman and others (n 11) [643] and [644]. 45 in besigye v museveni (n 21), the supreme court also rejected earlier ugandan decisions imposing the criminal standard. 46 n 30. http://www.ajol.info/index.php/ajcr/article/download/63320/51203 the denning law journal 299 divisional court concerning the judicial review of an election petition involving section 115 of the representation of the people act 1983. subsection (1) provides that “a person shall be guilty of a corrupt practice if he is guilty of undue influence”. whilst farquharson lj noted that the issue was not significant in the case itself, he asserted that in addressing the standard of proof in relation to such cases: “… a person accused of corrupt practice before an electoral court should only be held to have committed it if the allegation is proved beyond reasonable doubt. the subsection refers to a person being “guilty” of corrupt practice, and that connotes a criminal offence. it would not be desirable to have a different standard of proof in different courts on the same issue”. 47 it is precisely because an election court is widely (and arguably correctly) viewed as being a civil court, that the imposition of a lower standard of proof is justified. whilst a person found to have been involved in electoral malpractice may face serious consequences, including being disqualified from participation in future elections, an election court does not impose criminal penalties. this is a matter for a criminal court which is very different animal, especially given the application of the right to a fair trial provisions and the restrictive rules as to the admissibility of evidence. as regards the application of an intermediate standard, there are several inter-related arguments to support its adoption. firstly, given their subject matter, presidential petition cases are “peculiar civil proceedings” meriting special treatment. 48 thus as ngulube cj asserted in lewanika v chiluba, given that the outcome of such a case would “impact upon the governance of the nation and the deployment of the constitutional power and authority”, imposing a high evidential hurdle on petitioners would “deter unmeritorious petitions designed to destabilise the new government”. 49 secondly, it is argued that judges must avoid the “political question” for the national constitution has entrusted the people with the task of electing their president. this is highlighted by the holding of supreme court of kenya in the odinga case that: “as a basic principle, it should not be for the court to determine who comes to occupy the 47 ibid 1068. 48 see the supreme court of nigeria in nwobodo v onoh (n 48). 49 ngulube cj in lewanika (n 36). case commentary 300 presidential office”. 50 similarly, atuguba jsc in the mahama case asserted that: “… for starters i would state that the judiciary in ghana, like its counterparts in other jurisdictions, does not readily invalidate a public election but often strives in the public interest, to sustain it”. 51 in analysing such decisions, it is important to place them against the background of the significant pressures inevitably placed on judges dealing with presidential petitions, especially for those serving in small, ethnically divided and/or politically volatile countries. thus imposing a high standard of proof on petitioners can be seen as a way of ensuring that the most sensitive of “political questions” is avoided as well as any “counter-majoritarianism” arguments whilst offering judges some protection from undue political pressure or concerns as to their independence. the arguments against an intermediate standard focus both on practice and policy. as regards the former, the question of what constitutes the appropriate “intermediate standard” is not explored in any of the cases. instead various phrases are suggested including a “fairly high degree of convincing clarity”, “above the balance of probability”, and a “very high standard of proof”. such opaqueness concerning this so-called “high evidential hurdle” is liable to seriously impact on those with a meritorious case and reinforces the argument that the standard of proof is merely being used as a convenient mechanism to prevent/deter challenges to presidential elections. as regards policy, it is a fundamental constitutional right for the people to choose their own president in free and fair elections. it is trite that maintaining a level playing field throughout the electoral process serves to reinforce the constitutional imperative of holding demonstrably free and fair presidential elections in order to establish and maintain political stability and public confidence in the electoral process. as the 50 at [299]. see also the comment by smith etieno „the political question doctrine: a look at petition no 5 of 2013 available at http://www.academia.edu/6730672/the_political_question_doctrine_a_look_at _petiton_no._5_of_2013_raila_odinga_and_2_others_v_i.e.b.c_and_3_others (accessed 1 august 2015). 51 99. the denning law journal 301 supreme court of kenya itself noted in the odinga case, the constitution of kenya places on the judiciary the obligation to: “safeguard the electoral process and ensure that individuals accede to power in the presidential office, only in compliance with the law regarding elections”. 52 it follows that presidential petitions are not “peculiar civil proceedings” as asserted in nwobodo v onoh 53 meriting special treatment but are civil cases raising fundamental constitutional issues. such issues do not require a higher standard of proof than that required in other civil matters. indeed it is because fundamental constitutional rights are involved that the application of the normal civil standard is necessary. accordingly the courts cannot abrogate their constitutional mandate nor seek to circumvent it by requiring a higher standard of proof. this is rightly supported by the majority of the judges in the mahama case. 5. overview the confusion over the standard of proof in presidential petition cases is unnecessary and unacceptable. whilst some might agree with the view of denning lj in bater v bater, albeit in very different circumstances, that: “the difference of opinion which has been evoked about the standard of proof … may well turn out to be more a matter of words than anything else”, 54 the issue is far too serious to adopt this approach. there is therefore no basis for applying anything other than the civil standard of proof. 55 however as lord rodger of earlsferry noted in jugnauth v ringadoo, 56 in an election petition case “as a matter of common sense rather than law” a court was unlikely to be satisfied on the balance of probabilities that there has been bribery without cogent evidence to that effect. 57 this point is reflected in the words of lord nicholls of 52 odinga (n 16) [299]. italics in the original. 53 n 25. 54 ibid 36: a point noted by odoki cj in besigye v museveni (n 21) 8. 55 it is argued that this principle also applies to the uk position and that the decision in r v rowe needs reviewing. 56 n 32 57 [19]. case commentary 302 birkenhead who explained in in re h (minors)(sexual abuse: standard of proof) 58 that: “… some things are inherently more likely than others… on this basis, cogent evidence is generally required to satisfy a civil tribunal that a person has been fraudulent or behaved in some other reprehensible manner. but the question is always whether the tribunal thinks it more probable than not”. 59 whilst bound by the earlier court of appeal decision in r v rowe, it is unfortunate that the court in erlam v rahman did not take the opportunity to at least note this decision, perhaps with a view to having it applied in later election petition cases in the united kingdom. certainly, courts when faced with presidential election petitions should be encouraged to adopt this approach. in the event, the petitioners in both presidential petition cases were unsuccessful. 60 however, disagreement over the fundamental issue as to the appropriate standard of proof to apply in such cases can only bring confusion and a sense of grievance on the part of petitioners and their supporters. overall, perhaps the most noteworthy aspect of the presidential petition cases is that the disputes were fought out in the courts and not in the streets. further that the decisions of each court were respected by the unsuccessful petitioners. accordingly the cases rightly “represent a necessary non-violent, constitutional move, worthy of commendation, to correct and secure the integrity of elections, hence, the future of democracy, peace, stability and development in africa”. 61 58 [1996] ac 563. 59 ibid 586. these words are in stark contrast to the view of the court of appeal in r v rowe. 60 in the mahama case the supreme court of ghana rejected the petition by a 5-4 majority with all the judges recognising that there had been irregularities in the electoral process. however, in the view of the majority, the number of votes affected was not so significant as to make any impact on the result even if they were annulled. 61 a phrase drawn from the danquah institute report on the presidential election petition in ghana 2013, 1: available at http://www.danquahinstitute.org/news/1807-report-on-the-presidential-electionpetition-in-ghana-23-february-2013-updated-18-march.html (accessed 1 august 2015). http://www.bailii.org/cgi-bin/redirect.cgi?path=/uk/cases/ukhl/1995/16.html http://www.danquahinstitute.org/news/1807-report-on-the-presidential-election-petition-in-ghana-23-february-2013-updated-18-march.html http://www.danquahinstitute.org/news/1807-report-on-the-presidential-election-petition-in-ghana-23-february-2013-updated-18-march.html the family law reform act 1987 useful reform but an unhappy compromise? n v. lowe'*' introduction as it states in its long title, the object of the family law reform act 1987, is to reform the law relating to the consequences of birth outside marriage; to make further provision with respect to the rights and duties of parents and the determination of parentage, and for connected purposes. that such reform was needed could hardly be doubted since the pre-1987 act law relating to illegitimacy was both wrong in principle and inadequate in practice: the former, because it is surely indefensible for the law to discriminate against children simply because their parents were not married to one another; the latter principally because financial relief could only be obtained through the highly unsatisfactory means of affiliation proceedings. moreover, with the growing number of children being born outside marriage (126,000 in 1985),1 the need for reform has assumed ever greater importance. insofar as the 1987 act addresses these issues it is a most welcome piece of legislation. on the other hand, the act is immensely complicated and at times obscure and even misleading; it does not abolish the concept of illegitimacy nor, indeed, are all the adverse consequences removed. it may therefore be questioned whether the act goes far enough, and more generally whether its overall framework provides the best means for reforming the law. it is the intention of this article to examine these latter issues first and then to discuss the more important of the substantive provisions.2 the basic strategy (i) sections 1 and 2 as has been said, the 1987 act does not abolish the concept of illegitimacy as such but instead adopts the strategy of substantially reducing the need to refer to that status. this is sought to be achieved first, by removing most (though "reader in law, university of bristol. 1. office of population censuses and surveys: populatioll tretlds (1986), tab]e ii. 2. at the time of writing a number of the provisions have been implemented, principally ss.l, ]8-22, and 26-29. for a complete list see further at n.si. 77 the denning law journal regrettably not all) of the remaining areas of legal discrimination against illegitimate children and, secondly, in cases where it is still necessary to distinguish between children born within marriage and those born without (principally in relation to the rights and duties of fathers), reference is made to the parents (rather than the children) and whether or not they are married to one another. this general approach is set out in ss. 1 and 2 of the act. section 1(1) provides that references in the 1987 act and any succeeding act or statutory instrument to "mothers" or "fathers" or "parents" refers, unless the contrary intention appears, to all such persons regardless of whether they have or had been married to each other at any time.3 the clarity of this opening provision is immediately obscured by definitional provisions designed to distinguish (in simple terms) parents (primarily fathers) of legitimate from those of illegitimate children. to avoid using the words "legitimate" or "illegitimate", s.l(2) refers instead to a person whose parents were not married to each other at the time of the child's birth. however, it was recognised that this shorthand definition was insufficient by itself because a child can be legitimate even though his parents were not married to each other at the time of his birth. accordingly, s.1(2) is made subject to s.1(3) so that references to "a person whose father and mother were not married to each other at the time of the child's birth"4 do not include (correspondingly, references to a person whose parents were married to each other at the time of his birth do include) cases where the child is (a) legitimate even though his parents' marriage is void, (b) legitimated by reason of his parents' subsequent marriage, (c) adopted and (d) "otherwise treated in law as legitimate".5 although ss.1(2) and (3) have the laudable aim of redirecting the discriminatory labels from the child to the parents (it is clearly the spirit of the act to refer to a child as being of unmarried parents rather than as an illegitimate child), they nevertheless make not just for complex but positively misleading law. perhaps the best example of this is schedule 2 part i of the marriage act 1949 (this sets out whose consent is required for a minor's marriage) which, as a result of the amendments of the 1987 act,6 is headed "where parents of the child were married to each other at the time of his birth". the unsuspecting reader might think that that part means what it says and is confined to parents married at the time of the child's birth but this is not so 3. this is a reversal of the previous virtual presumption at any rate with regard to the expression "parent" (less obviously with regard to the expression "father") that it did not include the father of an illegitimate child. 4. by s.1 (4) a child's birth is to be taken to include the period beginning with insemination resulting in his birth or, where there was no such insemination, his conception, and ends with his birth. 5. this is intended to cover the case, for example, where the child is conceived through aid and born to a married woman and who therefore, by virtue of s.27 (discussed, infra), is treated in law as being the child, the woman and her husband. 6. sched. 2, para i i. note also the converse heading in part ii, i.e. "where parents of the child are not married to each other at the time of his birth", substituted by s.9 of the 1987 act. 78 the family law reform act 1987 because, by the newly substituted s.78(la) of the 1949 act,7 that heading must be construed in accordance with s.l of the family law reform act 1987 and therefore includes parents who have married each other after the child's birth etc.. under s.2, certain existing statutes have to be construed in accordance with s.l of the 1987 act. among these acts8 is the child care act 1980 "except part i and ss.13, 24, 64 and 65". the none too obvious intention of this amendment was to make the provisions of the child care act 1980, ss.12 a-f, under which notice of refusal or termination of access to certain children in care has to be served on the parents who then have a right to challenge that decision in the juvenile court, applicable to putative fathers.9 as these provisions fall under part la (i.e. not part i) of the 1980 act the intention was to have them construed according to s.l of the 1987 act.1o however, since by an oversight, the definition of "parent" under s.87(1) of the child care act 1980 (which expressly excludes putative fathers) has been left unaltered, it seems even after this implementation of s.2, putative fathers will still not have the right to challenge access decisions.lo (ii) the background to these pmvisions given the complexity of ss.l and 2, one might question the appropriateness of the whole underlying strategy. to appreciate why this approach was adopted it is necessary to consider the background to the legislation. the act is based upon the recommendations of the law commission. originally, the commission favoured the radical plan that the status of illegitimacy should be abolished altogether.l i they argued that since the label was itself discriminatory, true equality demanded not simply the removal of the remaining areas of legal discrimination but the abolition of the very status. indeed so strongly were they committed to this view, that they were prepared to countenance the necessary corollary of their recommendations that all fathers should be treated equally. the overwhelming response, however, was against giving all fathers automatic rights and accordingly, in their full report on illegitimacy,i2 the law commission did not advocate abolition of the status though they did recommend a change in terminology with the terms "marital" and "non marital" replacing so far as possible "legitimate" and "illegitimate". 7. added by sched. 2 para. 10 (b) of the 1987 act. 8. the others are the national assistance act 1948 s.42(1), the family law reform act 1969 s.6, the guardianship of minors act 1971, the guardianship act 1973 part i, the children act 1975 part ii and the social security act 1986 s.26(3). 9. which they clearly did not prior to the 1987 act; see, e.g., re p (minors: access), p. v. p. (galeshead mbe illieroenillg) (1988) 17ze times 19 february. 10. see, e.g., the comment at [1988] fam. law 151. admittedly other results are more clear; for example, it is absolutely clear that s.1 of the guardianship of minors act 1971 (which states that the child's welfare is of the first and paramount consideration in custody disputes) applies even as between unmarried parents. it will also be clear that the prohibition against mothers and fathers applying for custodianship under s.33(4) children act 1975, applies to unmarried fathers as well. 11. see their working paper no. 74 on illegitimacy published in 1979. 12. law com. no. 118 (1982), particularly at part iv. 79 the denning law journal although the government accepted these proposals in principle, in fact no immediate action was taken, and in the meantime the scottish law commission examined and reported on the issue.13 they observedl4 that "so long as marriage exists and children are born there will be children born out of marriage. in some cases of children born out of marriage the parents will marry each other after the birth: in others they will not. these are facts and, short of abolishing marriage there is nothing the law can do about them." like the english law commission they did not recommend abolishing the status of illegitimacy, but unlike that body the scots could see no merit in introducing the new terms "marital and "non marital". as they said15 that "was just another way of labelling children, and experience in other areas, such as mental illness, suggests that new labels can rapidly take on old connotations." they concluded that they did not wish to see "a discriminatory concept of 'non maritality' gradually replace a disciminatory concept of 'illegitimacy"'. however, like the english law commission, the scots did recommend that the terms "legitimate" and "illegitimate" as applied to people, should wherever possible cease to be used in legislation. to achieve this, they recommended that, where distinctions based on marriage were necessary, future legislation should distinguish between fathers rather than children and where it was thought necessary to distinguish people on the basis of whether or not their parents were married to each other at any relevant time (which they hoped would be a "very rare exception") it should be done expressly in those terms. the scottish law commission's proposals were enacted in the law reform (parent and child) (scotland) act 1986. following these developments, the english law commission reconsidered its proposals and in a second report, published in october 1986,16 advocated reform along the scottish lines. these recommendations were the ones enacted by the family law reform act 1987. (iii) can the law commission's final recommendations bejustified? although it is a major criticism of the 1987 act that it does not remove all legal discrimination against illegitimate children, it is nevertheless submitted that the law commission was right in 1982 to drop its recommendation that the status be abolished altogether and that all fathers be thereby automatically vested with rights over their children. as has convincingly been argued,17 there would be immense practical problems in giving all fathers automatic rights, particularly with respect to adoption and child care law, and the consequential delays and 13. scot. law com. no. 82 (1984). 14. ibid., at para. 9.1. 15. ibid., at para. 9.2. 16. law com. no. 157. 17. mary hayes, 43 m.l.r. 299 (1980) . 80 the family law reform act 1987 difficulties that would inevitably ensue would hardly be for the child's benefit.ls it has nevertheless been arguedl9 that the status could have been abolished without giving all fathers equal rights, it being pointed out that: "it is perfectly possible to allocate rights between parents according to their marital status while holding that all children have equal status." this seems a strong argument but once the commission felt unable to remove all the consequences of illegitimacy it was clearly not open to them to adopt such an option. in fact, however, by adopting the compromise of redirecting the label towards the parents, the commission have come close to accommodating this suggestion. it is also submitted that the law commission were right in 1986 to abandon their earlier proposed introduction of the terms "marital" and "non marital" and to adopt instead the scottish model. while no doubt the new e)\..pressions would have made the task of drafting the legislation easier, nevertheless the comments of the scottish law commission about the dangers of simply introducing new discriminatory labels for old, seem convincing. does this conclusion therefore mean that our law has inevitably to be as tortuous and obscure as ss.1 and 2 of the 1987 act make it? it is suggested not. the scottish legislation is noticeably simpler and with suitable adaptation could have profitably been incorporated into the english legislation. section 2 of the law reform (parent and child) (scotland) act 1986 defines who has parental rights and provides in effect that the mother automatically has such rights regardless of whether she is or has been married to the child's father, whereas the father has such automatic rights only if he or she has been married to the child's mother. had this been done in substitution of ss.1(2)-(4) and had it been stated that a father without automatic rights would be known as the "putative father", then not only would many of the drafting difficulties have been solved,21 with the labelling still directed at the parent rather than the child, but it would also have employed a term already in common use. the substantive changes under the 1987act despite the above criticism of s.1, for the remainder of this article it is nevertheless proposed to follow the spirit of the 1987 act so that where 18. these problems have in no way been diminished by the decision in gillick v. west norfolk and wisbecharea health authority [1986] a.c. 112. hence, in this writer's view, that decision does not affect the validity of the view that all fathers should not be vested with automatic rights; if. stephen cretney's tentative suggestion, at [1987] fam. law 404, that it might. 19. john eekelaar, "second thoughts on liiegitimacy reform", [1985] fam. lalp 261. 20. section 2(2) makes it clear that the father has parental rights where the marriage is voidable or void, provided it was believed by him in good faith at the time of marriage to be valid. 21. section 4(1), for example, (discussed, infra) would have simply stated: "the court may, on the application of the putative father, order that he shall have all the parental rights and duties with respect to the child." admittedly, this approach would not provide a substitute for the headings in sched. 2, part ii of the marriage act 1949 (adverted to, supra), though it is suggested that if the headings respectively referred to "a child whose parents are or have been married to each other" and" a child whose parents are not and never have been married to each other", that would at least be an improvement upon the 1987 act's amendments. 81 the denning law journal differentiation of status needs to be made it will be done by reference to the marital status of the parents rather than by labelling the children. as a matter of shorthand convenience parents of a child who are not and who have never been married to each other (excluding void marriage), will be referred to as "unmarried". (l) the furtherremrrval of legal discrimination against children of umnarried parents many of the adverse legal consequences of being born of unmarried parents had already be.en removed prior to the 1987 act. an important act in that respect was the family law reform act 1969, s.14 of which provided that children born of unmarried parents have succession rights to their parents' estates and vice versa. however, the 1969 act did not give such children any succession rights upon the intestacy of their grandparents or any collateral relatives, nor did it affect the devolution of an entailed estate nor entitle such children to take as an "heir". it is these omissions that have been addressed by the 1987 act. by s.18, the estate of any person, dying intestate after the provision comes into force, is to be distributed without regard to whether the parents of any claimant have or had been married to each other. as a result, children of unmarried parents will be able to claim on the death of, for example, a grandparent, brother or uncle. similarly, he could claim on the death of a first cousin related through brothers whose parents were not married to each other. because of the difficulty in tracing some fathers, whose identity might not be known, a person whose parents were not married to each other is presumed not to have been survived by his father or by anyone related to him only through his father, unless the contrary is shown.22 on the other hand, it should be noted that the exoneration formerly given by s.17 of the 1969 act to trustees and personal representatives who fail to ascertain whether there are children of unmarried parents who can take on an intestacy and who distribute the estate without notice of their existence, is removed by s.20 of the 1987 act. this change had been recommended by the law commission23 upon the basis that (a) it would be inconsistent with the basic policy of removing distinctions based upon the child's status and (b) it in fact imposes no significantly greater burden upon trustees and personal representatives, given their ability to protect themselves by advertising for claimants. whether the commission was over sanguine in their views can be debated. another important change is provided for by s.19, which states that in any disposition whether inter vivos, by will or codicil, made on or after the section comes into force, the use of the word "heir" is not to indicate an intention that a person whose parents have never been married to each other is not to take an interest. by this means it will abolish the rule that only children of married parents can succeed to an entailed interest. 22. section 18. 23. see their second report (law com. no. 158), paras 3.8-3.12. 82 the family law reform act 1987 this new construction of the term "heir" will not mean, however, that children of unmarried parents will thereby be able to succeed to property which is limited to devolve along with a dignity or title of honour. this is made clear by s.19(4). on the other hand this does not mean that such children will never be able so to succeed since that will depend upon the terms of the letters patent issued under the great seal. at the moment they are in a form24 which limits succession to the "heirs ... of his body lawfully begotten", which is enough to show a contrary intention against devolvement to children whose parents are unmarried. however, if her majesty were minded in the future to use the form "to x and the heirs of his body" then any child could succeed under the terms of s.19(2). apart from this latter point, the only remaining area of legal discrimination against children whose parents are unmarried is in respect to british citizenship. under s.50(9) british nationality act 1981, children whose parents are unmarried can only claim citizenship through their mother. hence, they are not entitled to british citizenship even though their father is such a citizen. this rule is unaffected by the 1987 act. although the law commission could see no reason in principle why this rule should not be changed, they felt unable to make definitive reform proposals since it was a united kingdom matter and therefore outside their terms of reference.25 it is surely a matter of profound regret that the government felt unable to change the rule. as one commentator26 has pointed out, with the advent of on a fingerprinting27 by which it has become significantly easier to establish parentage, it is now particularly hard to justify the retention of the current discriminatory rule. (ii) the abolition of affiliation proceedings and the introduction of a new aaion under the guardianship ofminors act 1971 although the foregoing reform is not insignificant, of more practical significance are the provisions dealing with the courts' powers to grant financial relief in respect of children whose parents are unmarried. adopting the law commission's recommendations, the 1987 act abolishes affiliation proceedings28 and replaces them with a new action under the guardianship of minors act 1971. the 1987 act also repeals the statutory embargoes on making financial orders against unmarried parents in wardship and custodianship proceedings.29 as a result of the new provisions under the guardianship of minors act 1971, it will be open to either parent to apply for financial relief.3o this will mean that for 24. see the discussion by the law commission in law com. no. 118, at para. 8.26. 25. see law com. no. 118, at para. 11.9. the scottish law commission came to a similar conclusion; see scot. law. com. no. 82, paras 8.3-8.5. 26. stephen cretney, [19871fam. law 404. 27. see, e.g., rej. [1988)1 f.l.r. 65. it might also be noted that s.23 of the 1987 act amends s.20 of the family law reform act 1969 specifically to allow the courts to order such tests. 28. section 17. 29. see, respectively, sehed. 2 para. 20 and sehed. 2 para. 61. 30. applications for relief will 1101 in themselves put the child's custody in issue. 83 the denning law journal the first time an unmarried father will be able to apply for an order against the mother. more significantly, the mother will no longer have to be "single", which means that a woman still cohabiting with her husband can apply for an order against another man whom she alleges to be the father. another change is the removal of the need for the mother's evidence to be corroborated. of course this will not obviate the need to establish paternity nor does it mean that the courts will necessarily act on uncorroborated evidence.31 another important change introduced by these provisions is the removal of the three year time bar on making an application. this will mean that unmarried fathers who were safe from liability under the old law will no longer have that immunity. the law commission was hesitant in recommending this change32 but in the end felt that the benefit to the child outweighed the detriment to the father. whether the change will lead to a flood of actions remains to be seen, but as the law commission pointed out, in assessing what order, if any, to make, the court is directed under s.12a of the 1971 act to consider all the circumstances of the case including the financial obligations that the father has or is likely to have in the foreseeable future. the length of time before the action is brought is surely likely to be an important factor in itself. in any event many fathers will have since acquired other family commitments and thereby limited their available resources. two other crucial changes are introduced by the new action. first, applications can be made to the high court, county court or magistrates' court. this means that the latter court will lose its exclusive jurisdiction to grant financial relief for children of unmarried parents. secondly, the two higher courts will have wide powers at their disposal, viz. they will be able to grant secured or unsecured periodical payments, lump sums of any amount and require "either parent to transfer to the other parent for the benefit of the child, or to the child, such property as may be specified ... " and to order settlements. precisely what impact these two changes will have is hard to say, though at a stroke they make the action attractive to middle class applicants who at the moment seem to avoid bringing affiliation proceedings. the power to make secured periodical payments orders and unlimited lump sum orders should certainly be useful in cases where the father is better off. it may also be anticipated that higher orders will be sought in the higher courts, particularly where the parents have been living together for any significant period. what use will be made of the powers to make property transfers or settlements is perhaps even more a matter of conjecture. the law commission33 did not envisage the power being used at all frequently, relying on the practice of the divorce courts to lean against making such orders.34 whether this view proves well founded remains to be seen. 31. see law com. no. 118, para. 6.22. 32. ibid., at para. 6.55. 33. ibid., at para. 6.6. 34. see chamberlain v. chamberlain [19741 i all e.r. 33, at p.38 per scarman lj and draskuvic v. draskuvic (\981) ii fam. law 87. 84 the family law reform act 1987 it can be pointed out that unlike divorce proceedings where the court can make orders in favour of the spouse, in these proceedings there will be no such power and hence there will be a stark choice as to whether to make an order for the child's benefit or no order at all. it is suggested that as well as claims against rich fathers, a transfer order is likely to be sought in cases where the parents have cohabited for any length of time. in this latter context it seems quite reasonable to expect, particularly as the child's welfare will be the first and paramount consideration in these proceedings, that the courts will accept the need to preserve the parties' home as a home for the children. indeed the law commission said35 that few commentators thought it a valid objection that a transfer was tantamount to giving the unmarried mother a right to support for her own benefit. even if the court is not prepared to make an outright transfer for the child's benefit, it might be disposed to make a limited transfer until the child has grown up. if this view is taken by the courts then it might be that the law commission seriously underestimated the use to which these powers may be put. in addition to providing an action for unmarried parents, the newly amended guardianship of minors act 1971 provides for an independent right of certain adult children to seek financial relief against their parents.36 under the new s.11037 an action may be brought by any child, regardless of whether his parents are married to each other, provided (a) he is over 18 and "is, will be or (if an order were made under this section) would be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not he also is, will be or would be in gainful employment" or there are other exceptional circumstances justifying an order; (b) his parents are not living together in the same household; and (c) there was no periodical payments order in force in respect of him immediately before he was 16. application may be made in the high court or county court. upon such an application the court is empowered to make an order requiring either or both his parents to pay to the applicant such periodical payments or lump sum as it thinks fit. what use will be made of this action remains to be seen. (iii) the unmarried father's right to apply for a parental rights and duties order faced with opposition to the idea that all fathers should have automatic rights, the law commission instead proposed that unmarried fathers should be allowed to apply for a parental rights and duties order. in this way it was sought to give some recognition to caring but unmarried fathers.311 this proposal has been enacted by s.4 of the 1987 act. the effect of such an order is to vest all the rights and duties in the applicant that he would have had, had he been the married father. 35. ibid., at para. 6.7. 36. this provision enacts the law commission's recommendations; see law com. no. 118, paras. 6.29-6.33. 37. added by s.14 of the 1987 act. 38. see law com. no. 118, paras 7.26 et seq.. 85 the denning law journal according to s.4(2) these rights and duties are to be shared with the mother, or, if she is dead, with any guardian appointed under the guardianship of minors act 1971. read literally this would appear to mean that such rights and duties will not therefore be shared with testamentary guardians, since they will not be appointed under the 1971 act, but it is difficult to believe that this was what was intended. the order will remain in force even where the father and mother continue to live together but it can subsequently be discharged upon the application of the father, mother and, if the mother is dead, any guardian appointed under the guardianship of minors act 1971.39 application for a parental rights and duties order may be made in the high court, county court or magistrates' court.40 in deciding whether to grant the order the court must treat the child's welfare as the first and paramount consideration.4o if an application is made whilst the father and mother are still living together and the mother does not object to it, then no doubt the court will grant the order. in contested cases, however, the court will obviously have to consider what relationship the father has or has had with the child. if there has been no contact at all then it will be difficult to justifyan order being made. on the other hand, if there has been a close relationship, then the mere fact that the court would not grant him day to day control does not ipso facto mean that a parental rights and duties order will be refused. precisely what use will be made of this action is a matter for conjecture. the law commission very much hoped41 that applications would be made while the mother and father are living together, in other words in cases where there is no dispute between the parties. one suspects, however, that few such applications will be made since most people only think about their legal position when things have already gone wrong. the law commission envisaged42 the new order being sought in two other situations, namely, where the mother dies having appointed no guardian and where the parents have separated and the father seeks full parental rights rather than legal custody. a section 4 application has obvious use in the former situation but at first sight there seems little to be gained from a parental rights order that cannot be gained from a legal custody order. however, an unmarried father would be well advised to apply for both,43 since were he to fail to gain legal custody, he would have no parental rights even ifhe were granted access. on the other hand, as previously stated, the refusal of a custody order does not ipso faao mean that a parental rights and duties order will be refused. 39. section 4(3). again this provision seems to exclude testamentary guardians. 40. section 4(4). 41. see law com. no. 157, para. 3.3. 42. law com. no. 118, para. 7.29. 43. cf stevens and legge, "illegitimary obscured but ilot obliterated"; all allalysis of the family law refoml act 1987 [1987] fam. law 409,410 who comment "where there is conflict, s.4 may well be bypassed as the father may be advised to apply for legal custody to be vested in himself alone or with a shared reponsibility with the mother under the 1971 act." 86 the family law reform act ]987 not everyone agrees that s.4 is a good idea,44 but in this writer's view it is a good compromise. indeed one wonders whether the ambit of the provision could be extended to others, for example, step-parents or grandparents. it might be noted that under the equivalent provision in scotland44 it is open to anyone to apply for such an order. (iv) new status.for aid children conceived by a married woman at common law it was clear that a child conceived as a result of artificial insemination of a woman with the semen of a man other than her husband was illegitimate. this was so even if her husband agreed to the insemination. many, including the law commission,46 felt this to be wrong, and following the commission's recommendations, s.27 alters this position. by that section, any child born in england and wales after the implementation of s.27, as a result of artificial insemination of a married woman with the semen of a man other than her husband, will, unless it is proved that the husband did not consent to the insemination, be treated in law as the child of those parties 47 and not of any other person. in other words an aid child born to a married couple is presumptively the child of both parties, that presumption being rebuttable upon showing that the husband did not consent to the artificial insemination of his wife. although as a matter of status for the child this does seems a desirable change in the law, nevertheless it is a powerful objection that it will encourage such spouses to conceal the true origins of the child. indeed it could legalise such deception if it is interpreted as entitling such persons to register the child as their own. it will also be noted that s.27 is limited to children conceived by artificial conception and does not apply to other forms of artificially aided conception. however, the government intends to so extend the provision.48 another, perhaps unintended, result of s.27 is to make surrogacy agreements, which take the form of a married woman agreeing to be inseminated by the semen of the "commissioning father",49 even more difficult to operate. in such cases, unless he can show that he did not consent to the insemination, the husband and not the "commissioning father" will be treated as the child's legal father. consequently, any agreement between the mother and the "commissioning father" will be void under s.1 (2) guardianship act 1973. furthermore any placement with the "commissioning father" with a view to adoption will rank as a private placement and therefore an offence under s.l1 adoption act 1976. 44. see, e.g., the trenchant criticism of the proposal by eekelaar, [19851fam. law 261. 45. section 3 of the law reform (parent and child) (scotland) act 1986 and see the comments of the scottish law commission, scot. law com. no. 82, at p.97. 46. law com. no. 118, para. 12.7 et seq.. 47. but note the proviso re succession to any dignity or title of honour pursuant to s.27(3). 48. see their white paper: human fertilisation and embryology: a fral1lelvorkfor legislation (1987 cm. 259), para. 89. 49. as in re p. (minors) (wardship: surrogacy) [1987] 2 f.l.r. 421. 87 the denning law journal (v) other changes the 1987 act contains a number of other important provisions to which brief attention must now be paid. first there are the provisions under part v dealing with registration of birth. as a result of these amendments the provisions of the births and deaths registration act 1953 have been extended50 inter alia to allow a man alone to request his name to be entered as the father, provided the application is accompanied by (a) a declaration stating himself to be the father and (b) a statutory declaration by the mother stating him to be the father. there are also provisions dealing with the court's power to grant declarations of parentage. section 22 amends s.56 family law act 1986 inter alia to permit an unmarried person being declared a parent. the following declarations can now be sought: (1) that the person named in the application is the mother or father, or that particular persons are the parents of the applicant; (2) that the applicant is the legitimate child of his parents; and (3) that the applicant has or has not become legitimated. section 23 makes the useful and important amendment to s.20 family law reform act 1969, so as to permit the court to order "scientific tests" and thereby enable dna fingerprint testing to be carried out. conclusions the 1987 act contains important and worthwhile reform. unfortunately, that reform is marred by complexity and obscurity. perhaps, given that the law commission's recommendations, upon which the act is based, are in the nature of a compromise some of the complexity is inevitable. however, as it is hoped to have been demonstrated in this article not all of the act's imperfections were unavoidable and indeed if the scottish model had been more closely followed, our own law could have been a great deal simpler. despite its imperfections it must nevertheless be hoped that the whole of the act is implemented as soon as possible. at the time of writing a number of provisions of the act have already been implemented.51 at the moment, however, there are no plans to implement those provisions dealing with the abolition of affiliation proceedings and the creation of a new action under the guardianship of minors act 1971. given that in practical terms, those are the most important of the reforms of the 1987 act it can only be hoped that the government have an early change of mind. 50. following the law commission's recommendations at law com. no. 118, paras. 10.63 et seq.. 51. viz ss.l, 18-22,26-29,31,33 (part), 34; sch 2, paras. 2-4,9-11,16 (c), 19,59,73,74,96; sch 3, paras. 1,8-10; sch 4 (part); si1988/425. these provisions came into force on 4 april 1988. 88 contract and tort after denning m. p. furmston * my brief is to discuss the ways in which english contract and tort law might develop in the rest of the century. 1 the time is propitious for such a review since of the four great figures who have done so much to shape the development of contract and tort law since the war lord denning, lord diplock, lord reid and lord wilberforce,2 three have recently departed from the courts, lord denning and wilberforce by retirement and lord diplock, alas, by death. this permits, and perhaps requires, a pause for reflection and regrouping. if an attempt to answer the question is rash, the posing of the question itself makes some assumptions which are not self evident. to foretell the future assumes that progress will have at least a significant rational element. one of our greatest living historians, a. j. p. taylor, has often argued that on the whole things happen by accident and are not the product of determinist trends. it is difficult not to feel that there is at least a significant accidental element in the development of common law through the process of deciding cases. in a sense the law is at the mercy of litigants since if no litigant brings a question before the courts and in particular if no appellant brings it before the house of lords, developments which are possible may be held up for generations. for instance it seems probable that if some suitable case with appropriate facts had come before the house of lords in the seventies, they would have taken the opportunity to abolish or at least seriously to qualifythe doctrine of privity of contract. even when cases do come before the lords, much may tum on accidents of timing. so it is plausible to speculate that if the la pintada3 case had come before the house of lords before the law commission had recommended the abolition of the general rule that interest was not payable on debts in the absence of agreement,4 their lordships might have " professor of law, university of bristol. 1. a revised version of a paper given at a symposium on anglo-japanese law at the university of warwick on 19 december 1986. 1 am grateful to hugh beale and keith stamon for comments on an earlier draft. 2. the order is alphabetical. 3. [1985] a.c.104. 4. law commission no 88, cmnd. 7229. 65 the denning law journal taken the opportunity to overturn this long-entrenched but barely justifiable rule. even where a problem occurs so frequently that it is almost inevitable that sooner or later it will come before the courts, much may turn on the way in which the merits appear in the particular case, on the forensic tactics used by counsel and indeed, on the composition of the house of lords itself. it is not absurd to suggest that if donoghuev. stevenson5 had been decided by a majority of3:2 in the opposite direction, english law would look rather different today than it does. professor schwartz has recently explained the decision of the plaintiff in the important californian case of j'aire6 to pursue an apparently speculative claim in tort rather than a clear cut claim in contract against a different defendant on the basis of the confession of the plaintiff's attorney that "contracts was never my subject in law school".? despite all these qualifications many common lawyers looking back into the past will find lines of development which seem, at least in retrospect, logically coherent if not inevitable. is it entirely a coincidence that the american courts in mcpherson v. buick8 reached substantially the same result as the english courts in donoghue v. stevenson?9 may there not be something in the logic of the system or the needs of the times which produces similar results in similar places. one of the revelations of comparative law, indeed, is how often the logic of different systems seems to lead to the same result, presumably because of the need to respond to similar social problems. when we turn from case law to legislation, though it is true that most academic lawyers despair from time to time of the possibility of parliament pursuing rational policies in law reform, it is true that in retrospect one can identify developments such as the introduction of criminal appeals or the right of the accused to testify at his own criminal trial, which seem inevitable even though at the time they were highly contentious and violently resisted. to continue at this point therefore, indicates a belief that one can have at least a stab at identifying the future by looking at what has taken place over the last twenty-five years and trying to identify in what directions development seems to follow from this. prediction of future trends assumes the ability to identify the relevant forces for change. without being clearly able to ascribe a precise weight to different forces i start by assuming in what follows that change is partly fuelled by the perceived inherent logic of the system amongst its practitioners; partly by a response to the perceived needs of society as revealed by the accidents of litigation and partly by the choice of subjects for legislative law reform. in this respect a factor that seems to me so far to have been underestimated is the switch to a wholly graduate entry 5. [1932] a.c.s62. 6. 24 cal. 3d 799, 598 p. 2d 60, 157 cal. rptr 407 (1979). 7. in the law of tort: policies atld trends ill liability for damage to property alld ecollomic loss ed. furmston (duckworth, 1986), at p.86. 8. 217 ny 382,111 ne ioso(1916). 9. [1932] a.c.s62. 66 contract and tort after denning into the profession which will mean within a generation a wholly graduate profession. these graduates will be overwhelmingly law graduates and even those who are not law graduates will have received at least two years of systematic instruction in the law. i find it difficult to believe that this will not have a substantial effect on the way in which future generations of lawyers will analyse legal problems. most of us, if we are honest, will admit that many of our ideas were fixed at an early age by the conceptual structure of the subjects as they were taught to us. if this is true then internal developments within university law schools in the way in which the subject is taught will in their turn have effects on how practitioners perceive problems. the relationship of contract and tort one of the most interesting questions which the courts will have to work out over the next twenty years is the relationship between contract and tort. this has a number of aspects. one is attempts by a plaintiff to allege that he has a claim in tort even though he has a claim in contract against the same defendant arising out of the same facts. this problem has in practice arisen primarily in the context of limitation. in this context the fact that the limitation period in contract starts when the contract is broken but that in tort starts when the plaintiff suffers damage means that there may be significant advantages in suing in tort rather than contract for this purpose. after an initial rejection of this possibility by diplock l. j. sitting as a high court judge in bagot v. stevens, scanlan,1o it was accepted in a very full and carefully reasoned judgment by oliver j. in midland bank v. hett stubbs and kemp.ll this decision was expressly approved by the court of appeal in batty v. metropolitan realisations limitei2 and in the leading house of lords decision of pirelli v. faber,13 the defendant did not even think it worth while to argue that the plaintiff, who undoubtedly had a good but statute barred claim in contract could not pursue a claim in tort on the same facts. the only discordant note in this picture is the opinion of the privy council in tai hing cotton mill limited v. liu chong hing bank limited.]4 in this case lord scarman said, "their lordships do not believe that there is anything to the advantage of the law's development in searching for a liability in tort where the parties are in a contractual relationship." on one view this might be taken as disapproval of the reasoning in midland bank but it seems in fact unlikely that this is so. certainly courts in cases after tai hing have continued to treat the midland bank approach as entirely correct in the limitation context.15 in interpreting tai hing it is important to note that the privy council was first of all invited to extend 10. [1966] i qb.197. ii. [1979] ch.384. 12. [1978] qb.554. 13. [1983] 2 a.c.1j see furmston, 1 coiistroction l.r.25. 14. [1985] 2 all e.r.947. 15. see, e.g., london congregational union v. harriss (1986) 8 constroction l.r.s2 67 the denning law journal the implied obligations of the customer to his bank in contract; then when that approach was rejected, to outflank its own decision by holding the customer as under a duty of care in tort. it seems entirely rational to say that the underlying policy considerations were identical whether the question was posed as a contract or a tort question and should therefore receive the same answer.16 it would be strikingly inconvenient if the tai ring opinion were applied in the limitation context since it seems clear that the latent damage act 1986 assumes the correctness of midland bank. one of the paradoxes of this area was that lord scarman sat in pirelli v. faber and was one of the principal architects of the latent damage act 1986. another development has been an attempt by plaintiffs to invoke the law of tort in order to outflank the problems presented by the law of contract, particularly the doctrine of privity of contract. these attempts mirror in a way attempts by previous generations in cases such as de la bere v. pearson 17 to overcome defects in the law of tort (particularly the absence of liability for careless statements) by stretching the law of contract. some of these developments are discussed below in relation to economic loss. some scholars have deduced from these developments that the law of contract and tort are coalescing.18 some, indeed, have spoken of the emergence of "contort" or the death of contract. undoubtedly, it is now important for contract and tort lawyers to be aware of developments in each others' subjects, but for the moment developments seem rather to emphasise the distinction between contract and tort than to mark their confluence. if the law in tort and contract were indeed flowing in a single channel, the results of cases would have surely been the same, whether they were formulated in contract or tort. to permit a plaintiff who has failed in contract to succeed in tort on identical facts against the same defendant, or vice versa, seems rather to point up the distinctiveness of the rules than to reflect their assimilation. of course there must be serious doubts when different results are produced on the same facts, according to which of two apparently equally valid analyses are adopted. this result, however, seems inevitable, unless one is to go down the french road and adopt the rule of non-cumul.19 if we take the case of defective 16. the present writer must confess to grave doubts as to whether the privy council ought not to have accepted the invitation to develop the law in this area by widening liability in contract. the effective question in the case was, who should bear the risk of the plaintiffs dishonest servant. since even the most elementary precautions by the plaintiffs would have revealed his dishonesty at an early stage, it seems hard to apportion all the loss onto the bank since it is much more difficult to see what practical steps the bank could have taken to reduce the chances of loss. it is of course entirely understandable that the privy council should not wish to have gone to the other extreme and held that all customers were under obligation to check their statements. one wonders, however, whether it were not possible to develop some distinction between commercial and private customers in this area. 17. [1908] 1 k.b.280. 18. see particularly cane in the law of tort, supra n.7, ch.6. 19. see herbots in the law of tort, supra n.7, ch.7 at p.139. 68 contract and tort after denning buildings, it is clear that some plaintiffs will only have actions in torts; for instance, because they did not contract with the person who is at fault. in the case of such plaintiffs, limitation periods would inevitably start when damage is suffered. some other plaintiffs will have a choice of suing in contract or tort but it would be difficult to justify their tort claims being rejected simply because their contract claims had been rejected when they had neighbours who were in a different position. that might mean that the second hand buyer could sue the developer when the first purchaser could not. tort collapse of the personal injury system? i cannot myself believe that our existing system for personal injury will continue unreformed into the indefinite future. the criticisms of the existing system have been too often and too well rehearsed to justify repetition here.2o suffice it to say that the existing system consumes an unacceptably large amount of resources in its operation and that in practice it spreads the compensation monies across those injured in a way which is totally erratic, irrational and unjustifiable. sometimes when i make this statement i am told by the audience that vested interests in the present system are too strong for it not to survive. i am reluctant to believe this and contrariwise encouraged by signs that the medical profession is beginning to see the attractions of a system that does not require repeated enquiries into the carelessness of doctors.21 a struggle between the vested interests of doctors on the one hand and personal injury lawyers and insurance companies on the other would be interesting to watch. i think i know which horse i would back. growth of professional negligence litigation the last twenty years have seen a major growth in the willingness of plaintiffs to sue their professional advisors. if one is concerned with a plaintiff who brings a contract action against his own advisor, there has been very little formal change in the law here but a marked increase in willingness to sue. if one considers claims formulated in tort, whether against one's own advisor or against other people's advisors, there has been an explosion of liability since hedley byrne including such decisions as ross v. caunters which would have appeared unthinkable thirty years ago. if we make the plausible assumption that in this field english courts will go some way down the american road, this suggests further geometric increase in professional liability actions. stories, obviously inspired, now regularly appear in the papers about the burdens of insuring against professional negligence and professional bodies, indeed, have grouped together to seek to persuade the government to impose statutory limits on negligence liability. the attraction of this is said to be that it would make insurance problems significantly easier to 20. see, for instance, atiyah, accidents, compensation and the law. 21. see, e.g., stirrat, [19861101 bristol medico-chirurgical journal. 69 the denning law journal overcome. it seems likely however, that the government will resist these blandishments. in any case, it is hardly likely that public opinion would tolerate any limit which was not so large as to leave only a very small number of claims over the limit. it is rumoured that some large firms of accountants have been sued for sums well into nine figures. it seems very doubtful whether judgments of this size could be effectively enforced against the partners of a firm, however large, if it was well in excess of their insurance limit. in any case, if a careless accountant actually causes loss of this scale it is not self-evident that he should not bear it so far as he is able or insured, unless it can be shown that it would be much cheaper and more efficient for the victim to insure. a priori this seems doubtful. it is no doubt a legitimate question whether tort actions for professional negligence are in fact the appropriate way to improve levels of professional competence. there are however, serious grounds for doubt as to how widespread competence is. the professions have only recently begun to bestir themselves in this respect. in particular, granted the complexity and rapid evolution of modern professional skills, the relatively modest programmes of post-qualification continuing education so far adopted are very much a first step. if the professions seek special treatment the least the public should demand in return is that the professions themselves should demonstrate heroic efforts to raise standards. the development of the tort of negligence if one had been asked to present this paper in 1982, the discussion of this section would have appeared much easier. up until that period the post-war developments appeared to reflect a consistent trend towards a hegemony of the tort of negligence within tort law. by this i mean two rather separate developments the one is a movement away from strict liability, at least in respect of the central area of damage to person and property. so successful actions under the rule in rylands v. pletcher are nowadays virtually unknown and the tort of nuisance has been afflicted, admittedly to a degree difficult to define precisely, by ideas of negligence.22 in 1982, one would have been inclined to discount as an immediate possibility the one major departure from this trend which is now evident, that is, the introduc.tion by statute of a strict liability regime for products. although i welcome this development as an improvement on the present law, it is not easy to think of a principled reason for introducing this regime for products only and continuing to operate a negligence regime for road accidents. only the almost fortuitous fact that it is possible to think of plausible eec constitutional reasons for a uniform regime for products but so far impossible to think of similar reasons for a uniform regime for car accidents produces this change. in any case, the existing reform is probably not a very great step forward since the permission of the development risk defence will introduce some questions of fault and in any case the need to operate through the legal system and the possibility of raising defences based on causation or 22. see particularly the wagon mound (no 2) [1967] i a.c.617. 70 contract and tort after denning contributory negligence will mean that the plaintiff will often fall short of full recovery. to this writer at least, strict liability appears a second best alternative to a socially funded scheme. the development does underline however the importance of membership of the eec as a reason for legislative initiatives. when i talk of the hegemony of negligence i have also, perhaps more importantly, in mind the apparently inevitable assumption that a defendant who has been negligent should always be liable. so during the sixties, seventies and early eighties, a number of apparently well established exceptions to this principle crumbled away. the special treatment of buildings appeared to collapse in the face of dutton v. bognor regis23 and anns v. merton;24 the special treatment of nervous shock was made much less special by mcloughlin v. 0 'brian;25 the special immunity of careless statements was removed by hedley byrne26 and its successors, and an apparently major inroad into immunity for the negligent causing of pure economic loss was made by the decision in junior books v. veitchi.27 in 1982, immediately after junior books v. veitchi, it was plausible to assume that english law would find it very difficult to find a stopping place short of complete surrender to the principle that careless defendants would always be liable.28 this was puzzling since the forces which fuelled this development seemed to be entirely conceptual. the notion that he who is careless must pay seemed to be an idea whose time had come. in this respect i cannot help thinking that it was significant that in a very large number of leading negligence cases the court was deciding, without knowing what the facts were, because for procedural reasons the defendant had chosen to fight on the basis that although he was careless he owed no duty of care to the defendant. so for instance, in donoghue v. stevenson,29 hedley byrne v. heller,3o dorset yacht v. home office,3) rondel v. worsley,32 anns v. merton33 and junior books v. veitchi,34 the court was in effect invited to take the defendant's carelessness as read. in several of these cases the defendant had possible arguments that he was not careless but these were not considered by the court. is it not plausible to suggest that that circumstance deprived the court of that perception of the real balance of advantages and balancing of risks which would have emerged from a careful evaluation of the facts as a preliminary to the development of the law? 23. [1972] 1 qb.373. 24. [1978] a.c.728. 25. [1983] 1 a.ca1o. 26. [1964] a.ca65. 27. [1983] 1 a.c.520. 28. for a fuller discussion of the position as it seemed after junior books see stanton in the law of tori, supra n. 7, ch.1. 29. [1932] a.c.562. 30. [1964[ a.c.465. 31. [1970] a.c.1004. 32. [1969] 1 a.c.191. 33. [1978] a.c.728. 34. [1983] 1 a.c.520. 71 the denning law journal whatever the merits of this argument, it seems clear that the period 1982 to 1986 has been marked by a complete stop in this development, if not indeed by a v-tum. so such cases as the aliakmon,35 peabody v. parkinson,36 candlewood v. mitsui37 and muirhead v. industrial tank38 indicate that the courts are certainly not prepared to carry the decision in junior books one step further and indeed indicate that given the right facts they might be prepared to push it a few steps backwards. at the same time courts have been rebuffing attempts to introduce stricter forms of liability in personal injury cases whether based on suing in battery (chatterton v. gerson),39 on allegations of warranty (thake v. maurice)4o or use of "informed consent" (sidaway v. bethlem royal hospital g(jvernors).41 although some and perhaps all of these cases can be defended on the merits42 their cumulative effect is to present a conservative and indeed rather negative posture. at a theoretical level the most important ingredient in the cases is the attempt to resile from the two stage approach of lord wilberforce. in some cases this appears to involve an abandonment or at least a downgrading of arguments based on policy. as far as the law of economic loss is concerned, we seem to have moved from a position in which one might say that sometimes one can recover for it and sometimes not, to a position in which one can say sometimes one cannot recover for it and sometimes one can! neither the expansion of liability in junior books nor its contraction in the later cases can be said to present a coherent principled exposition of where the line is to be drawn between that economic loss which is recoverable and that which is not. it is clear that some cases of recoverable economic loss still exist, particularly in relation to careless statements (and there has been no suggestion that ross v. caunters43 is wrongly decided). one who looks to the future has to guess whether recent developments are simply a halting point in the march forward or whether there is indeed a reversal. in this respect one may perhaps draw attention to another factor in the development of the common law by judicial decision which i call the revulsion factor. after each of the most important steps forward such as donoghue v. stevenson44 and hedley byrne v. heller,45 we tend to have a period of five or ten years in which judges cannot actually believe the evidence of their eyes. so cases decided in the thirties and forties often indicated a 35. [1986] 2 all e.r.l45. 36. [1985] a.c.21o. 37. [1986] a.c.1. 38. [1985] 3 all e.r.705. 39. [1981] qb.432. 40. [1986] 1 all e.r.497. 41. [1985] a.c.871. 42. though not all the commentators have thought so. see, e.g., clarke, [1986] c.l.j.382; markesinis, [1986] c.l.j.384. parliament it seems, may have reversed thea/ialemoll in a fit of absence of mind by section 3(1) of latent damage act 1986 see griew, 136 new law journal 1201. 43. [1980] ch.297. 44. [1932] a.c.562. 45. [1964] a.c.465. 72 contract and tort after denning reluctance to take donoghue v. stevenson as laying down general principles of the kind which we now take for granted. similarly, the immediate post-hedley byrne cases, particularly mutual life v. evatt+6 but also a number of decisions at first instance, indicated a reluctance to believe that the house of lords had actually made the change it had. yet in both these cases, after a time, the broader view of the effect of the cases became established within the collective wisdom of the profession which is in practice such an important though intangible source of law making. it is not inconceivable that the same process will happen with junior books v. veitchi though it would perhaps be a rash lawyer who would confidently predict that it would. contracts it is possible to view the development of the law of contract as reflecting the different weight given at different times to the values of freedom of contract and of paternalism. certainly many developments in the law of contract over the last twenty-five years can be discussed in these terms.+7 for this purpose i am inclined to put forward a thesis that this battle will never be won by one side or the other, and that the real question is not whether paternalism should prevail over freedom of contract or vice versa but where exactly the borderline between their respective spheres of influence should lie. exemption clauses one of the major battle areas in recent years has been the treatment of exemption clauses. the substantive doctrine of fundamental breach as propounded by lord denning in many cases in the court of appeal, represented an entirely understandable attempt to ensure fair dealing for such consumers as purchasers of shoddy second hand cars. it proved impossible however to develop a doctrine which both worked and had real intellectual coherence. as professor brian coote has all too clearly exposed, a system which ignores the distinction between clauses defining liability and clauses seeking to exclude a liability already accepted, will run into endless difficulties. +8 furthermore at the pragmatic level the substantive doctrine of fundamental breach ran into fatal difficulties when it attempted to expand from the area of consumer protection into straightforward commercial contracts as in harbutts plasticine+9 and photo produaion v. securicor.50 in this respect the unfair contract terms act of 1977 has undoubtedly permitted the courts to move back to a more reasoned approach,s! confident that most of the 46. [197]] a.c.793. 47. see collins, the law of contract (]986) and the reviews by reynolds, 102 l.qr.628 and weir, []986] c.l.j.503 for different views. 48. exception clauses (1964). 49. []970]] qb.447. 50. []980] a.c.827. 51. photo production v. securicor [] 980] a.c.827j ailsa craig fishing v. malvem fishing [1983] 1 w.l.r.964. 73 the denning law journal practical problems which have actually given rise to litigation in the past have been taken care of, even though the act exempts some transactions from its scope (such as sales of land, and policies of insurance) where the case for so-doing is far from clearly demonstrated. one of the most controversial decisions implicit in the 1977 act was the granting of power to the courts to declare many exemption clauses in commercial contracts void because unreasonable. since businessmen are certainly entitled to make foolish contracts in general, it is not wholly clear why they should be prohibited from entering into foolish exemption terms. furthermore it can be plausibly argued that it is very difficult for a court to come to a decision on whether a clause is or is not reasonable without an examination of the whole business background and context which is unlikely to be possible in the forum of litigation where the cost is likely to deter all but the most determined parties from presenting the relevant business information to the court. it is striking in this respect that the majority of decisions on reasonableness so far have tended to reach the conclusion that the particular clause litigated was unreasonable. one important message to contracting parties, is that they should employ lawyers who can devise clauses which look reasonable rather than relying, as lawyers rather evasively have in the past, on attempts to exclude liability for everything. in a rational world this ought to lead to more contracts where liability is limited rather than excluded and where the insurance burden is clearly determined by the contract. indeed, it is noticeable that in some of the most complex contracts such as major building contracts, the very sensible practice of all the parties having a single insurance policy with the same insurance company to cover all risks is now widely adopted, thereby avoiding the possibility that the different insurance companies will egg the parties on to litigation in order to shift the risk on to each other (one might say in passing that the time must surely soon come when the doctrine of subrogation is re-examined to see whether in practice it produces desirable or undesirable results in terms of litigation).52 certainty in commercial contraas outside the field of exemption clauses there have been a number of indications of a swing back to valuing the virtues of certainty, particularly in commercial contracts. i have in mind such decisions as bunge v. tradax53 indicating that in appropriate circumstances the court will decide that a contractual term is a condition, even though the parties have not formally so classified it, because of its importance. perhaps even more significant is the line of cases from the laconia54 to the chikuma,55 in which the house of lords has rebuffed repeated attempts by the court of appeal to permit relief to a party who pays a little late where the 52. hasson, 5 oxfordj.l.s.4i6. 53. [1981] 2 all e.r.513. 54. [1977] a.c.850. 55. [1981] 1 all e.r.652. 74 contract and tort after denning contract entitles the other party to terminate for failure in prompt payment. the refusal to spread the doctrine of relief against forfeiture into the area of commercial contracts in such cases as sport international bussum v. inter-footwea~6 is part of the same trend. these developments have been accompanied by a more elaborate and sophisticated analysis of the effect of breach of contract to which both lord wilberforce57 and lord diplock58 made major contributions. difficulties may lie ahead however in deciding how far the decision of the majority of the house of lords in hyundai v. papadopoulos59 that termination leaves unaffected pre-termination obligations to pay money is to be carried. consumer protection i am inclined to think in general that change in the law of contract for the purposes of consumer protection has now reached something near the limits of useful development and that the steps which at least in the short term are required to carry things forward are to be found either in the expansion of the criminal law or in the provision of much cheaper, quicker methods of dispute settlement. it is noticeable if one looks at the cases how few consumer durables give rise to litigation outside the motor industry, and how many of the cases even within the motor industry were brought by the finance companies who continued to insist on payment in full for shoddy cars rather than by consumers asking for their money back. it is i think clear, if one looks at the cases, that in nearly all of them the consumer would in practice have been perfectly content to abandon the vehicle and the money he had already paid, in order to get rid of the transaction. the average consumer finds it difficult to complain and finds the thought of litigation intolerable. inequality of bargaining power one of the most stimulating and controversial initiatives by lord denning in the field of contract law was his suggestion in lloyds bank v. bundlo that there was a general doctrine which could be drawn together from a number of specific examples that a court would interfere with an agreement where one party had taken unfair advantage of a superiority in his bargaining position. on the whole this was received with a somewhat chilly response from english commentators on the grounds that inequality of bargaining power is a vague notion, difficult to describe, analyse or apply.61 the notion has also been received with less than rapturous enthusiasm by many judges, particularly by the house of lords, in national westminster bank v. morgan.62 it is notable, however, that in all the cases 56. [1984] 2 all e.r.321. 57. see, e.g.,}ohnson v. agnew [1980] a.c.367. 58. see, e.g., photo production v. securicor [1980] a.c.827. 59. [1980] 2 all e.r.29. 60. [1975] qb.326. 61. see, e.g., treitel, the law of contract (6th edition 1983), pp.317-318. 62. [1985] a.c.686. 75 the denning law journal where courts have been asked to apply the doctrine and have refused to do so, the judges have been careful first of all to make it clear that the actual contract that they were considering fell comfortably within the area of permissible negotiating tactics. so in bunnah oil v. bank of england,63 in alec lobb v. total oif4 and in morgan itself,65 the primary reason for the decision was that the contract was in fact fair. of course, to test the denning thesis, we need to find a case in which a judge will say that the contract is clearly unfair; that the parties were clearly in an unequal bargaining position, but that the court can do nothing about it. i think it may be some time before this case emerges! if this is correct, then we cannot yet exclude the possibility that in a suitable case some court will feel that the existing pigeon holes do not quite fit the case but that the case requires judicial intervention. in such a case, an appeal may be made again to the spirit of bundy. it is noteworthy in this respect that lord denning's judgment has received much more enthusiastic reception in canada. canadian contract law appears to be much more open to the reception of this kind of broad-brush approach.66 contraa theory some of the questions discussed above implicitly raise questions of what the law of contract is about; what its objectives are and should be, and what is the underlying basis of contractual obligation. these questions having been neglected for thirty years are very much to the fore again. professor patrick atiyah has argued in his usual persuasive fashion that the underlying rationale of the law of contract is or should be reliance rather than the satisfaction of expectations.67 so far i must confess to finding the evidence that this is so less than wholly convincing, but the debate is clearly a fruitful one. questions about reliance are particularly important in relation to the final resolution of doubts about promissory estoppel. it is an illustration of both the strength and the weakness of evolution through the cases that high trees68 should have appeared as if from nowhere in 1947 but that we should still be unsure forty years later where its precise limits lie. similarly, contract lawyers have learned much and will learn more from the application of economic a!lalysis which has been particularly illuminating in the context of contractual remedies. indeed, the whole question of remedies, for so long a topic shuffled off to the end of the course and the back of the book, has moved very much to centre stage; an important example is the new debate as to whether specific performance should be granted on a significantly wider basis than it has 63. (1981) unreported. 64. [1985] 1 all e.r.303. 65. the different way in which the same facts are presented by the court of appeal [1983] 3 all e.r.85 and the house of lords is striking in this respect. 66. see, e.g., monison v. coast finance (1965) 55 d.l.r. (2d) 710; black v. wi/cox (1976) 70 d.l.r. (3d) 192; waddams in lord denning: the judge and the laws ch.lo. 67. see e.g., atiyah, the rise alld fall of freedom of contract, pp.184-189; promises, morals and the law, pp.36-42; 102 l.qr. 363. 68. [1947] k.b.130. 76 contract and tort after denning been in the past. as i was writing an earlier draft of these words i received in the post a report of the decision in posner v. scott-lewis69 (a happily named case!?) where specific performance was granted of an agreement by a landlord to provide a residential porter in a block of flats. this was a classic example of a stipulation which could not be adequately compensated by a payment of d"lmages but where authority might well have persuaded judges twenty or thirty years ago not to accede to an application for specific performance. 69. [1986] 3 all e.r.513. 77 foreword the rt. hon. lord denning my friends at the university of buckingham have decided to launch a law journal. they are fortunate in that lord scarman has agreed to be chairman of the editorial advisory board. but 1 am most embarrassed that they should have called it the denning law journal. 1 cannot think why, except that my judgments have often given rise to controversy and given the commentators something to write about. but 1 appreciate the compliment and would congratulate the university on its enterprise. it is of the first importance that there should be free and open discussion of the issues of the day. the members of this free and independent university self-supporting as it is are well placed to take the lead in these discussions. they will choose subjects of contemporary and practical importance. they will seek contributions from those in the law schools of other universities and also in the practising side of the legal profession. 1 trust it will be well supported. 1 have often been asked: which was your most important judgment? 1 would put it as candlerv. crane, christmasl where 1ventured, in a dissenting opinion, to extend the scope of negligence so as to cover economic loss caused by negligent advice. that view was accepted and adopted 13 years later by the house of lords in hedley byrne v. heller.2 next, 1 would put rex v. northumberland compensation appeal tribunal, ex parte shaw3 where we extended the remedy by prerogative writs to cover, not only excess of jurisdiction by a tribunal, but also error of law. to which 1 would add barnard v. national dock labour boartf where we extended the remedy by declaration so as to make it available when a tribunal acted contrary to natural justice or made a mistake of law. these decisions paved the way for the explosive expansion of judicial review which culminated in 0 'reilly v. mackman.5 1 there traced its history and 1 like to think that it was of help to lord diplock in his most important speech in the house of lords. 1. [1951] 2 k.b.i64. 2. [1964] a.c.465. 3. [1952] 1 k.b.338. 4. [1953] 2 qb.18. 5. [1983] 2 a.c.237. 1 the denning law journal then there are the cases on exception clauses. these go back to my junior days when i induced the court of appeal to uphold a most unrighteous clause in l 'estrange v. craucob.6 but when i was on the bench, we managed to introduce the doctrine of fundamental breach. it started in karsales (harrow) v. wallis.7 a company could not rely on a printed exception clause if it was itself guilty of a breach going to the root of the contract. although that doctrine was afterwards repudiated by the house of lords, we managed in due course to revive it in a new guise. a company could not rely on a printed exception clause unless it was fair and reasonable; that was in ceo. mitchell ltd. v. finney lock seeds8 which was affirmed by the house of lords,9 where lord diplock referred to my contribution to the common law in terms which make me blush with embarrassment but which i treasure beyond measure. then of course there is the mareva injunction which i regard as my most important contribution to commercial law. we there granted injunctions to prevent debtors making away with their assets so as to defeat creditors. this involved our departing from the law of the 19th century. we did it in two interlocutory cases straight off the reel, nippon yusen kaisha v. karageorgislo and mareva v. international bulkcarriers: ii but elaborated in a reserved judgment in the pertamina. 12 although the house of lords threw cold water on it in the siskina,13 the mareva survived and was given statutory force. i suppose i should mention the high trees case.14 it was not a reserved judgment. i decided it at first instance straightaway at the end of the argument. its importance was in getting rid of the old notion that estoppels were confined to representations of fact and did not extend to representations as to the future. it brought in a new species of estoppel called promissory estoppel. many were the doubts cast upon it, notably by the house of lords, but it became and is well established. then there are the cases in family law, in which i sought to bring the law into line with the social changes in the status of women. in bendall v. mcwhirterls we invented the deserted wife's equity only to be reversed later by the house of lords and afterwards restored by statute. in rimmer v. rimmerl6 we gave the working wife a half-share in the matrimonial home: and were never reversed. 6. [1934] 2 k.b.394. 7. [1956] 1 w.l.r.936. 8. [1983] 1 qb.285. 9. [1983] 2 a.c.803. 10. [1975] 1 w.l.r.1093. 11. [1975] 2 ll.l.r.509. 12. [1978] qb.644. 13. [1979] a.c.2io. 14. [1947] k.b.130. 15. [1952] 2 qb.466. 16. [1953] 1 qb.63. 2 foreword then there were excursions into international law. my first case in the house of lords was rahimtoola v. nizam of hyderabad. 17 i took more pains over it than any other case only to be scourged by lord simonds and the other law lords. yet in the end we won. in the trendtex case we did away with the absolute theory of state immunity and replaced it by the restrictive theory. outside the courts, i found the profumo inquiry the most interesting and important of my cases. my reportl9 was a best-seller, but the crown said it was their copyright. they took all the royalties! since my retirement, i have spoken in the house of lords on legal subjects: such as abortion, diplomatic immunity, terrorism, police powers, judicial review, telephone-tapping, kerb-crawling, test-tube babies, surrogate motherhood, and pay rises. all these may be thought fit for discussion in the pages of this journal. our legislators would welcome all the help they can get. so i could go on. you will see why i enjoyed the court of appeal best. it is the linchpin of the law of england. it is the court which lays down the law finally in most cases. very few go to the house of lords. i end with all best wishes for the success of this journal. • 17. [1958] a.c.379. 18. [1977] qb.529. 19. cmnd. 2152 of 1963. 3 3 the denning law journal 2017 vol 29 pp 3-16 reasonable reactions to the wrongness of rape john gardner* in a bracing recent paper1 my old friend bob watt invites me to make a “paradigm shift.”2 he is inspired to do so by his reading of an essay that stephen shute and i wrote nearly two decades ago, called ‘the wrongness of rape.’3 the world as portrayed in this essay, watt says, “does not accord with reality as perceived in our everyday lives by most, if not all, of us.”4 the words “if not all” in this sentence add something of importance. watt hopes that the world as portrayed in our essay does not accord with reality even as shute and i perceive it. i think he worries (with characteristic kindness) that, if we perceive reality in the way in which it is portrayed in ‘the wrongness of rape’, we are basket cases in need of therapeutic intervention. in this response – in which i take the opportunity to revisit several themes from the original essay – i hope to reassure watt (and others of like mind) that the position taken in the essay, particularly on the subject of emotions, is not the disturbing one that he reads into it. there is no reason, i will suggest, for me to “reserve [my] analysis to [my] professional li[fe].”5 nor do i so reserve it. the analysis we offered in ‘the wrongness of rape’ comports with my own everyday experience. for the shute-gardner account of the wrongness of rape has quite ordinary phenomenological ramifications. ultimately it helps to explain, rather than to explain away, the central importance of emotional experience in human life, including of course my own. * professor of law and philosophy, university of oxford. 1 bob watt, ‘the story of rape: wrongdoing and the emotional imagination’ (2014) 26 denning law journal 46. hereafter watt. for the uninitiated, bob writes his forename with a lower-case ‘b.’ 2 ibid. 3 j gardner and s shute, ‘the wrongness of rape’ in jeremy horder (ed), oxford essays in jurisprudence: fourth series (oup 1998); reprinted with minor changes in john gardner, offences and defences (oup 2007). hereafter gardner and shute, ‘wrongness.’ page references here are to the 2007 reprint, which is used by watt and many others. 4 watt (n 1) 46. 5 ibid. reasonable reactions to the wrongness of rape 4 i watt thinks that shute and i underestimate the importance of emotions in moral experience, and, more generally, in human life. we make “a mere sideshow” of them, he says.6 to bear this claim out he latches onto the technical word “epiphenomenon,”7 which shute and i used several times in our essay.8 in the crucial sentence, to which our repetitions of the word are implicitly referring, we claimed that “emotional reactions [to rape] ... must be epiphenomenal, in the sense that they cannot constitute, but must shadow, the basic, or essential, wrongness of rape.”9 this sentence does not say what watt reads it to say, namely that emotional reactions to rape can only play a minor or peripheral role in determining the wrongness of rape. it says that emotional reactions to rape can only play a derivative role in determining the wrongness of rape. a derivative role in the relevant sense might well be a major role, even the dominant role. consider an example from a very different context. i have chosen the example to bring out that the shute-gardner argument is not specifically about emotional reactions, but about reactions more generally. the most weighty reason to keep a promise, and the one that lends most force to one’s duty to do so, is often the fact that the promisee relied on it. why would she have relied on it? well, it was a promise, and a promise is (barring special circumstances) binding on the promisor, and thus fit to be relied upon. so far so good. but the promisee’s reliance cannot now be used to explain why the promise is binding. if the fact that a promise is anyway binding is what makes it fit to be relied upon, the fact that the promise is relied upon cannot also be what makes it binding. the reliance reason for keeping it now points back to some other reason for keeping it. this reason (whatever it is) is the “basic or essential” reason, the one that holds us to our promises even when there is no reliance, and hence helps to justify reliance when there is reliance. notice, however, that this basic or essential reason may have rather little force on its own. one’s duty to keep a promise may not be very stringent until the reliance comes along. still, the reliance remains the derivative consideration; it builds on the more basic one.10 6 ibid 49. 7 ibid 46, 47, 49, 50, 59, 60. 8 gardner and shute, ‘wrongness’ (n 3) 6, 7, 21. 9 ibid 7. 10 for recent discussion of this issue in the context of promising (with greater subtlety than the present context allows) see d owens, ‘the possibility of consent’ ratio 24 (2011) 402 and j raz, ‘is there a reason to keep a promise?’ in g klass, g letsas, and p saprai, philosophical foundations of contract law (oup 2014). the denning law journal 5 shute and i thought that much the same points could be made in connection with strong feelings about rape, including but not limited to the strong feelings of those who are raped. if the strong feelings in question are reasonable ones (as we both thought they generally are) there must be something else wrong with rape, some more “basic or essential” wrongmaking feature of rape, that makes the strong feelings reasonable. possibly the “basic or essential” feature doesn’t make rape very wrong by itself. possibly the grief or shame or horror or rage of the victim (and possibly, in some cases, the anxiety or apprehension of other potential victims, the pity or sorrow or guilt of friends and family, etc.) is what makes the biggest difference to the wrongness of rape. so, possibly, it is the trauma of rape – let’s use this as our umbrella word – that should most concern us in the end. but that doesn’t in any way neutralise our interest in finding what else it is about rape that makes for such trauma. for we should think of the victims of rape as people like ourselves, capable of evaluating their own reactions and (perhaps only with therapeutic help) eventually getting them in some kind of perspective and proportion. shute and i regarded the possibility of relating to one’s emotions in this way as a matter of very great importance, not just for theorists like ourselves who are interested in the emotions as a subject of study, but also for the survivors of rape. rape, we thought, is dehumanising enough already without those who have been raped being condescendingly regarded as having lost their human sensitivity to value, their ability to interpret what has happened, to see how it matters, and to relate critically to their own reactions to it (as well as to the reactions of others). the idea that rape survivors can only be passive in the face of their own pain, overwhelmed and trapped by senseless feelings, only adds insult to injury. ii shute and i devised a hypothetical, now widely-discussed in the literature, to help us work out what it is about rape that is basically or essentially wrong, something that could explain why strong feelings about it are in order. the rape in the hypothetical (heavily sleeping victim, no illeffects, rape never comes to her or anyone else’s attention, rapist coincidentally killed just after leaving) was structured to leave no trauma behind it, except for the traumatised reactions of our readers.11 the latter exception is highly significant, although we deliberately did not mention it at the time. we wanted the imaginary rape in our essay to stir up strong feelings in our readers even though (by hypothesis) there could be no 11 gardner and shute, ‘wrongness’ (n 3). reasonable reactions to the wrongness of rape 6 feelings at all about the rape on the part of anyone inside the imaginary world in which it happened, for in that world (by hypothesis) the rape went entirely undetected. in this ambition of stirring up emotion in our readers we succeeded beyond our dreams. watt is just the latest in a long line of readers to react to our scenario with “disgust ... outrage ... an inward shudder for the victim.”12 indeed that was how we reacted to the example ourselves. why did we look for the same reaction in others? we wanted to test whether the relative moral importance of trauma in rape cases is similar to – for example – the relative moral importance of reliance in promise cases. in promise cases, it is plausible to think that reliance is what tends to make the biggest difference to the stringency of the duty to keep the promise. it is plausible to think that it is not very important to keep a promise that is never relied upon by anyone – say, because it is promptly forgotten by everyone. is the same true of a rape that goes undetected? our experiment suggested that, for most people, it is not. and watt is one of the guinea-pigs who has helped to confirm that result. he has helped to confirm our hunch (reflected in our own feelings about the case we invented) that an undetected rape, hence a rape giving rise to no trauma, is still very seriously wrong. would watt want to say that the rape in our scenario is wrong but not very seriously wrong, something like breaking a promise that nobody recalls or telling a lie that nobody hears? clearly not. like us, he is outraged by the rape. in which case, he helps to vindicate the approach of our essay. there is something seriously wrong with a rape even when, by hypothesis, it gives rise to no trauma. what is that something? that was precisely our question, and it has not gone away. watt could not be further from the truth, then, when he says that our “readers are implicitly required to step inside [the] analysis and to abandon the normal human responses felt when a person is confronted with a story of rape.”13 such abandonment by our readers would have defeated part of the object of the exercise.14 we needed plenty of serious reader-outrage in order to test our hunch that rape with no bad consequences, including no 12 watt (n 1) 49. 13 ibid. 14 a more apt target for watt’s quoted criticism would be pedro almadóvar’s film talk to her (2002) in which a scenario akin to the one shute and i devised is embellished, almost romanticised, in such a way as to make the viewer “abandon the normal human responses felt when ... confronted with a story of rape.” almadóvar’s experiment differed from ours. he really did want his audience to “step inside his analysis” for the first hour of the film – only to be disturbed, as he escorted them back out, at how easily he had made them complicit or quiescent. the denning law journal 7 trauma, is still wrong in a very serious way, such that one should still be seriously outraged on being told of it. and still seriously outraged, notice, even when it is identified in advance as an imaginary scenario and presented in an emotionally-flat “analytical philosophy” tone.15 nobody feels this pained – do they? – if we test them with imaginary cases of inconsequential promise-breaking, inconsequential lying, or inconsequential theft. to warrant such outrage whatever is “basically or essentially” wrong with rape must be something towards the more outrageous end of the spectrum. while the trauma felt by survivors may still be a major factor in assessing the seriousness of particular rapes – we left that contentious matter open16 – the underlying outrageousness of rape, the very thing that shute and i were trying to discover, clearly can’t be something slight. iii by charging that shute and i make “a mere sideshow” of the emotions, watt means that we underestimate their importance. but not only that. he also means that we err in treating emotions as answerable to reasons. if that is an error, i have just repeated it in sections i and ii. i treated it as a proper question to ask whether a certain emotion experienced by a rape victim (or by anyone) is reasonable, in proportion, sensitive to value, etc. watt denounces this (as he sees it) “kantian” rational scrutiny of our emotions in favour of (what he takes to be) its “humean” rival, according to which 15 although our tone could itself be the object of added outrage. we pointed tha t out in the essay (gardner and shute, ‘wrongness’ (n 3) 2), hoping that our readers would not allow their outrage at the thought of the imaginary rape to get mixed up with their outrage at our writing about it with such sang-froid as we did. to judge by watt’s reactions, our hope was in vain. some of his complaints seem to be complaints about the dessicated ways of philosophers as such. see e.g. watt (n 1) 49. 16 contentious because for some ‘rape is rape’ and does not admit of degrees of seriousness. this means refusing to differentiate among rapes according to their consequences, and hence, rejecting “victim impact statements” and the like. ‘rape is rape’ is a slogan usually traced to 1970s campaigner del martin. she continued: “the identity of the rapist does not alter the fact of his act, nor lessen its traumatic effects on the victim.” del martin, battered wives (volcano, california 1976) 181, [italics added]. notice that the italicised words allow that rape would be less serious if it were less traumatic. so martin did not believe that rape did not admit of degrees of seriousness. she merely thought that the identity of the rapist, on its own, was irrelevant to the degree of seriousness. reasonable reactions to the wrongness of rape 8 ‘reason is the slave of the quiet passions.’17 for watt,this means “that our first evaluation of an occurrence, such as rape, is emotional rather than rational,”18 that “emotions are right at the forefront of our assessment of wrongdoing.”19 in this sense, “[o]ne might even say that reason is the true epiphenomenon.”20 consider watt’s words “our first evaluation of an occurrence, such as rape, is emotional rather than rational.” clearly the word “first” here is a red herring. there was nothing in what shute and i wrote to suggest that one feels or should feel no horror, grief, fury or dread at anything in advance of knowing what it is about that thing that makes it horrifying, grievous, infuriating or dreadful. indeed what we said is even compatible with the more radical possibility that horror, grief, fury or dread may properly strike one even before one knows what the horrifying, grievous, infuriating or dreadful thing is (never mind knowing what it is about it that makes it horrifying, grievous, infuriating or dreadful). watt misleads his readers, then, by presenting his disagreement with us as being about whether, when we face something that (properly) evokes emotion, emotion is (properly) the first thing to be evoked. probably this is just a slip on his part; probably it is an explanatory rather than a temporal primacy that he really has in mind when he puts emotions “first.” more revealing, however, are the remaining words in watt’s sentence. in acknowledging that “our ... evaluation of an occurrence” can be emotional, he acknowledges that emotions can have objects, that it is possible to feel horror, grief, fury, or dread at something or about something or towards something, including something “such as rape.” not only possible, one might add, but par for the course. even if one does not yet know what the object of one’s emotional reaction is (even if one does not yet know what it is, say, that is giving one the creeps or the screaming heeby-jeebies) it is surely a built-in feature of one’s emotional reaction that it draws one’s attention to its object, or at least puts one on the lookout for its (as yet undetected) object. if one doesn’t yet know what one is reacting to, one’s reaction inclines one to wonder what it is that one is reacting to. if that much is true, then already one is relating to one’s own reactions in the “critical” way that i described in section iii above. one is asking why – in response to what – one feels as one does, and so one is treating one’s emotions as answerable to reasons. if one discovers that there is nothing to be afraid of, or nothing to be angry about, or nothing to be surprised at, then typically one’s fear or anger or surprise (as the case may be) evaporates – 17 watt (n 1) 58. 18 ibid 59. 19 ibid 60. 20 ibid 59. the denning law journal 9 although of course it may give way to embarrassment at one’s gullibility, or shame at one’s prejudice, etc. and if one discovers that what there is to be afraid of or angry about or surprised at is not as much as at first one imagined, then typically one’s fear or anger or surprise abates pro tanto – although of course it may give way to annoyance at one’s tendency to exaggerate, frustration at one’s lack of discernment, etc. the necessary adjustments when one discovers the truth in such cases might not, i hasten to add, be instantaneous; emotions that we discover to be misplaced, misdirected, or out of proportion, can be sticky. sometimes one even hunts around subconsciously to find some alternative object that would license one to continue feeling as one already does. one’s emotion cries out, if you like, for some object in the world to which it may still qualify as a fitting reaction. and that is all that there is to (typical) emotion’s answerability to reasons. it is no more and no less than is already implicit in watt’s own proposal that in or by an emotion we “evaluat[e] ... an occurrence.” we take something good or bad in the world to befit the emotion in question, even if we don’t yet know what that something is. and watt says precisely that, even about rape: at the thought of rape, we suffer “natural emotional nausea.”21 not any old reaction, notice, but the one that befits rape, and that comes naturally to us as beings who respond to reasons. does watt manage to distance himself somehow from the implications of his remarks, as i have just exposed them? elsewhere in his discussion he is sympathetic to a view put forward by john stanton-ife, to which i am also sympathetic, that rape is or is prone to be “destructive of personality itself.”22 that of course is a reason too, a reason, if stanton-ife is right, that is capable of bearing dramatically on the wrongness of rape. when it bears on the wrongness of rape, it bears by the very same token on the reasonableness of various emotional reactions to rape. that a victim’s personality would or might be destroyed by rape (if and when that is true) is surely a major reason to fear being raped, as well as to abhor rapists and relish their getting their comeuppance, to be saddened by the human capacity for evil, to be anxious or alarmed for the victim, to feel vengeful or heartbroken on her behalf, and more generally, in a suitably empathetic way,23 to share the victim’s pain. 21 ibid 61. 22 watt (n 1) 60, referring to john stanton-ife, ‘horrific crime’ in ra duff et a l (eds) the boundaries of the criminal law (2010). watt’s sympathy for the view is conveyed in watt (n 1) 47 n 3. 23 i believe i am at one with watt in saying that empathy is not an emotion; it is an ability and propensity to share in another’s emotions, also called “fellow-feeling.” i would add, as maybe watt would not, that empathetic people tend to draw the reasonable reactions to the wrongness of rape 10 these emotional reactions all answer to (inter alia) the stanton-ife reason, when that reason holds. but you may say – and watt may be read as saying24 – that the last entry on the list reveals a special twist in the stanton-ife reason. for one part of a victim’s personality that might be damaged or destroyed by rape is the emotional part, which is, as watt rightly says, a “vital part.”25 the person raped might be thereby rendered unrecognisable in respect of some emotional traits (going from sunny, open, and carefree, say, to wary, preoccupied, and panicky). couldn’t this help to show that reasons are the “true epiphenomenon” in the case of rape? we should all have negative emotional reactions to rape partly for the stanton-ife reason, true enough; but the stanton-ife reason itself refers us back to (the rape victim’s) emotions. so this explanation of rape’s wrongness bottoms out, does it not, in emotions rather than reasons? not so if the emotions have the rape as their object. not so if watt is right to think that, in or by her emotions (however transformed by the rape) the rape victim “evaluates” the rape. not so, in other words, if she is still capable of asking what it is about the rape that makes her feel as she does. suppose, as is understandable, that at least in the early months she finds it hard to grasp the reasons why she feels as she does (perhaps because it is hard to confront them when the experience is still so immediate). finding the reasons hard to grasp, but still tortured by her feelings, she sometimes worries that she might be going mad. that worry is fully intelligible on the shute/gardner view, which turns out also to be the watt view: since even very intense emotions answer to reason, being unable to grasp the reason for them is worrying. so one reassuring sign concerning our rape victim’s mental health is that, when confronted with very sticky emotions that she struggles to make intelligible even to herself, she still has this fully intelligible worry about her sanity. that shows that there is hope for her to get back to living her life, even if that means living a different life from the one she lived before and would have been living still, were it not for the rape.26 line at unreasonable feelings. empathy is not a judgment-free trait. for discussion see jesse prinz, ‘against empathy’ (2011) 49 southern journal of philosophy 214, and the reply in the same volume by julia driver. 24 watt (n 1) 47 n 3. 25 ibid 49. 26 is having a different life necessarily a bad thing? you might think not in a case in which the life afterwards includes less naivety, more strength of character, more sense of who one’s friends really are, etc. but i tend to think that even a case like this is double-edged. disillusionment represents a harm, it seems to me, even if one should not have had the illusions in the first place. i say more about this in my forthcoming book from personal life to private law. the denning law journal 11 iv since watt seems to hold emotions answerable to reasons in exactly the same way that shute and i do, one must conclude that he, mistakenly, takes us to be holding emotions answerable to reasons in some other, presumably more objectionable, way. what is that way? strangely, without supporting evidence, watt seems to land us with the view that people should react to the world dispassionately, repressing their emotions in favour of “reason[ing] out a course of action” in a cool-headed way. 27 this is a view commonly (although contentiously) associated with kant, and according to watt “the thrust of [the shute-gardner] argument is kantian.”28 whether it is kant’s view or not, however, it is diametrically opposed to our view. since emotions answer to reason, they belong to what aristotelians (among whom we number ourselves) call “the rational part of the soul.”29 true, one’s emotions are capable of seducing one into doing the wrong thing; but reasoning out a course of action in a cool-headed way is no less capable of doing that. neither the passionate nor the dispassionate among us has any a priori claim to be generally more effective in securing anyone’s (including their own) conformity with reasons; whether a more or less emotional reaction will lead to better reason-conformity just depends on which reasons we are talking about, which emotions, in which circumstances, for which person, in respect of which action, and so on. sometimes, surely, a cold calculation is just the opposite of what is called for. sometimes fleeing in terror, looking away in disgust, remonstrating furiously, weeping with frustration, or hanging one’s head in shame is the only reasonable reaction. shute and i said nothing to suggest otherwise. in fact, and somewhat strangely, it is watt who suggests otherwise. watt ultimately joins with kant, or with kant as contentiously interpreted, in asserting the “irrationality of emotion.”30 he thereby gives succour to the false idea that emotion tends to stand in the way of conformity with reasons, and should, so far as conformity with reasons is concerned, be avoided. it follows from this idea that if emotions are to be “rehabilitated,”31 to be restored to their proper place as “a vital part of the human personality”32 as watt thinks they should be, that rehabilitation cannot be in the name of 27 watt (n 1) 59. 28 ibid 47. 29 see e.g. m nussbaum, ‘aristotle on emotions and rational persuasion’ in ao rorty (ed), essays on aristotle’s rhetoric (university of california press 1996). 30 watt (n 1) 61. 31 ibid 49. 32 ibid. reasonable reactions to the wrongness of rape 12 conformity with reasons. accordingly, thinks watt, we had better learn to care less about conformity with reasons. why be reasonable, he wonders, when you could be in touch with your feelings? and he imagines us responding, tit-for-tat, with the reverse question: why be in touch with your feelings when you could be reasonable? that question certainly has something going for it as compared with watt’s. both questions are ‘why?’ questions that can only be answered by giving a reason. thus watt’s question “why be reasonable when you could be in touch with your feelings?” is a question the asking of which already presupposes the primacy of reasonableness.33 that gives a huge advantage to the riposte: why be in touch with your feelings, when you could be reasonable? but be that as it may, the riposte question is not the one that shute and i asked. our question was: how about having, or at least aspiring to have, reasonable feelings? we therefore did not sign up, as watt does, to the false choice between reasonableness and emotionality. for we did not share his faith in the “irrationality of emotion.” we thought (and i for one continue to think) that emotions not only answer to reasons, but often answer to reasons well, helping (sometimes enabling) people to do and be what they have reason to do and be. the last formulation shows how watt can square his belief in the “irrationality of emotion” with the belief that he seems to share with shute and me, namely that emotions answer to reasons. obviously it is possible to hold that emotions answer to reasons while holding that they do so badly – that, when it comes to improving our conformity with reasons, emotion is generally a poor guide, or at any rate a poorer guide than dispassionately “reason[ing] out a course of action.” this is a popular combination of views – emotions are not arational, but they are irrational – and it is plausible to attribute it to kant. curiously, it is also plausible, on closer inspection, to attribute it to watt. but it is not at all plausible to attribute it to shute and me. we say of emotions: they are not arational and they are not notably irrational either. allowing oneself to be guided by one’s emotions can sometimes lead one astray, of course.34 but cool calculation is no less prone to do so, at any rate a priori. (there may, of course, be a posteriori discrepancies in the success rates of these two modalities across different classes of actions, different agents, different reasons, different emotions, different times and places, etc. all of that would call for empirical research.) 33 gardner, ‘the mark of responsibility’ (2003) 23 oxford journal of lega l studies 157; later version in gardner, offences and defences (n 3). 34 on overestimating the rational reliability of emotion, see my, ‘wrongdoing by results: moore’s experiential argument’ (2012) 18 legal theory 459. the denning law journal 13 v a different strand of watt’s critique is concerned, not with the very idea that emotions answer to reasons, but with the particular reason that shute and i advanced as bearing on the wrongness of rape, and as providing a basis for negative emotional reactions to it. rape, we suggested, is the “sheer use” of a person.35 this is the “basic and essential” reason (a) not to commit it and (b) to feel as we do feel about it when it is committed. in this proposal shute and i admittedly alighted on a vaguely kantian idea. 36 perhaps it is this that leads watt to think, mistakenly, that we must follow kant on other matters too. be that as it may, i am no longer as sure as i once was that the proposal that shute and i made is exactly right. all i can say is that it is in the right neighbourhood. i think we were right to think of rape as a kind of objectification of a person, but possibly wrong to narrow down the relevant kind of objectification so exclusively to sheer use.37 watt does not, however, make an objection to our proposal along these lines. he does not say that some rapes are not sheer uses. rather he repeats a converse objection made by danny statman a few years ago:38 that many sheer uses are not rapes. statman gave the example of “a medical student making use of a person’s body by creeping into her room whilst she is unconscious and examining her facial structure to revise for his examination.” 39 he didn’t deny that this would be wrong; he merely pointed out that what shute and i said about rape would be “incomplete”40 if we failed to explain why the rape, in our much discussed example, seems so much more egregious than the facial examination in his example, even though both are sheer uses of a person. watt does not mention my reply to statman, in which i pointed out that shute and i had, in fact, offered the sketch of an explanation towards the end of our essay.41 our explanation 35 gardner and shute, ‘wrongness’ (n 3) 16. 36 we said that we ‘echoed’ kant: gardner and shute, ‘wrongness’ (n 3) 17. 37 i was given fresh food for thought on this question by m mikkola, ‘dehumanization’ in thom brooks (ed), new waves in ethics (basingstoke 2011) and more recently by m plaxton, ‘nussbaum on sexual instrumentaliation’ (2016) 10 criminal law and philosophy forthcoming. 38 d statman, ‘gardner on the wrongness of rape’ (2012) 4 jerusalem review of legal studies 105. hereafter statman, ‘gardner on the wrongness of rape.’ 39 watt (n 1) 47, paraphrasing statman, ‘gardner on the wrongness of rape’ (n 38) 108-9. 40 watt (n 1) 47, echoing statman, ‘gardner on the wrongness of rape’ (n 38) 109. 41 gardner, ‘in defence of offences and defences’ (2012) 4 jerusalem review of legal studies 110. reasonable reactions to the wrongness of rape 14 was that rape takes an important and socially influential ideal of subjectsubject relations – human sexual relations – and turns it on its head. this gives a special social meaning to rape that other sheer uses do not share.42 in a new (forthcoming) article, called ‘the opposite of rape,’ i have explored this point in a lot more detail.43 i have worked out the relevant ideal of good sex in a way that reveals, i think, why rape is the very antithesis of it, and thereby helps us to see what it is that is especially wrong with rape that does not extend to statman’s example of the facial examination. you do not need to read ‘the opposite of rape,’ however, to see that shute and i anticipated statman’s point and answered it. in my reply to statman i even quoted the relevant paragraph.44 watt turns the screw a little further than statman. he devises an example of sheer use of another person in human sexual relations that does not strike him as wrong at all, and certainly nowhere near the rape end of the spectrum. this move, if successful, neatly sidesteps what shute and i said in anticipation of statman’s objection. for we played the “sex is special” card to show what is especially wrong with sheer use of a person in the sexual context; and watt’s example is designed to show that sheer use of a person need not be especially wrong even in the sexual context. in watt’s example, a woman called mary “wants to be ‘used’” in a controlled sense by [her lover, john] so that she feels no responsibility for that which has happened.’45 in particular (in a nice echo of the rape hypothetical that shute and i devised) mary would like to experiment with john’s attempting to “make love to her while she is asleep.”46 what could shute and i say about this case to explain how distant it is from our case, without giving up our “sheer use” doctrine? a possible response is that watt’s is an example of “sheer use” in quotation marks, rather than sheer use. in an aspect of the story that watt only hints at, and may not mean to rely upon, mary’s wish to experiment in this way is an aspect of what is sometimes known as a “rape fantasy.”47 if watt means to rely upon this feature of the example, then the example tends to count in favour of, not against, the position that shute and i took. for if rape is sheer use of a person, then a theatrical representation of rape ought by the same token to be a theatrical representation of sheer use of a person. on this reading, watt’s words “controlled in a sense” mean that john is to be guided throughout by mary’s script. he must regard and conduct himself as a player in mary’s 42 gardner and shute, ‘wrongness’ (n 3) 22-3. 43 gardner, ‘the opposite of rape’ draft online at <http://bit.ly/1ph522i>. 44 gardner, ‘in defence of offences and defences’ (n 41) 126-7. 45 watt (n 1) 54. 46 ibid 53. 47 ibid 54 (n 27). the denning law journal 15 production, not engaging in sheer use of her but only in the portrayal of sheer use of her, albeit as authentically and with as much improvisation as he can manage and she requires. imagine that he gets carried away with the role and starts to regard the sleeping mary as his sex toy rather than as the impresario behind the show in which she plays the role of his sex toy. then, surely, the case shifts decisively back towards our rape hypothetical. but suppose the “fantasy” theme is another red herring in watt’s critique. suppose mary doesn’t want any masquerade. she wants her lover to fuck her while she’s out cold, ‘just like the imaginary woman in that shute-gardner article i was reading today’ (she tells him). the whole point is that she’s volunteering to be an actual sex toy. tonight, after she’s popped a couple of roofies and got herself a bit aroused, john is to use her in her stupefied form as if she were a kind of super-realistic inflatable doll. no injuries allowed of course (remember the shute-gardner example) but otherwise it’s all to be at his whim, with no thought of her as any kind of participant. the thought that she will be reduced to an object in this way turns her on, she says, and the thought of once having been reduced to an object in this way, she thinks and says, will routinely turn her on afterwards. ‘why not?’ she asks. ‘it’s just some harmless fun.’ if that is more or less the story, then watt’s example fits into a different part of the shute-gardner analysis.48 it is the kind of sexual activity which is covered by the right to sexual freedom. people may waive the duty that others owe them not to mistreat them sexually. it does not mean that there is no mistreatment. like other rights to freedom (freedom of speech, association, conscience, etc.), the right to sexual freedom is mainly there to license people to do objectionable things, and often these things remain objectionable even when done under the license of the right. the right to sexual freedom licenses people – mainly by use of their power to consent – to carry out ignominious sexual experiments with others, to take up sexually degrading lines of work, and of course to have casual and meaningless “utility sex” with virtual strangers. exercising the right, as mary does with john, is capable of taking acts in the “sheer use” category right out of the ‘rape’ category even though they meet the other conditions to qualify as rape. to test the hypothesis, just imagine that john is really into mary’s idea, not out of an uxorious zeal to cater to her peculiar tastes, but because he really likes the idea of fucking an unconscious woman. that doesn’t make him a rapist but it does make him a sleazeball with what today are sometimes called ‘rapey’ tastes, and it’s just as well for him that he has met someone, in mary, who happens to exercise her right to sexual freedom in a way that caters, depressingly, to his sleaziness. why, perhaps his sleaziness is even part of his attraction for her. as watt says, many people have kinky sexual 48 gardner and shute, ‘wrongness’ (n 3) 16-21. reasonable reactions to the wrongness of rape 16 tastes, including tastes to use others and be used by them, and many suffer associated sexual attractions for what their parents might call ‘unsuitable’ partners.49 the right to sexual freedom, as shute and i explained at some length in our essay, is what protects people in giving effect to those tastes and attractions even where, as watt very understatedly puts it in mary’s and john’s case “we may not wholly approve of the[ir] antics.”50 so it turns out that shute and i anticipated watt’s example as well as statman’s. we explained when and why sheer use of someone in sexual relations is “not wrongful”51 (watt’s expression) even when it meets all the other conditions for qualifying as rape. on the other hand we did not suggest, as watt thinks we should have done, that it is “it is the emotional context of that ‘use’ which is important.”52 nor should that be conceded. i do not doubt that in sexual matters, emotional connection is of great importance. it is one of many respects in which good sex may be good. it can be a redeeming feature of sex that it is some other ways pretty bad. but i very much doubt whether it has any role to play in explaining why john, while (zealously or otherwise) carrying out mary’s kinky request, is no rapist. possibly it explains, further back, why mary felt comfortable in giving john her consent to make sheer use of her. but it is her consent that matters to the question of why he is no rapist, and that would equally protect him from being a rapist if mary were an easygoing stranger he met in a bar, or a niche prostitute who specialises in offering the use of her sedated body to sleazy men who are into the idea of fucking an unconscious woman. the emotional context of all this sexual activity is a matter of evaluative importance in various ways. but it is not important, i persist in thinking, in explaining what qualifies as rape, or what is basically and essentially wrong with rape. 49 watt (n 1) 58. 50 ibid. 51 ibid 54. 52 ibid 55. human rights, 'arranged' marriages and nullity law: when do 'force', parental 130 denning law journal 2015 vol 27 pp 130-145 slavery under the european convention on human rights and the jus cogens prohibition of human trafficking stefan kirchner  and vanessa m. frese  abstract human trafficking for purposes of sexual and other forms of slavery continues to pose a major threat to the human rights and human dignity of many persons. this is particularly the case for young women from eastern european nations. not to be confused with human smuggling and undocumented immigration, human trafficking usually aims at exploitation, often through slavery in the form of un-oder underpaid domestic work or forced prostitution. the european convention on human rights (echr) as well as jus cogens outlaw slavery. in this article it is shown by the authors that human trafficking although not explicitly dealt with in the echr is also prohibited if it aims at creating or maintaining a situation of slavery. indeed, it is then prohibited by jus cogens and states have a positive obligation to combat human trafficking effectively. many states fail to do so, showing that this problem is one of law enforcement rather than of creating effective legal norms since those already exist. keywords human trafficking, slavery, european convention on human rights, jus cogens.  associate professor for fundamental and human rights, university of lapland, faculty of law, p. o. box 122, 96101 rovaniemi, finland, email: stefan.kirchner@ulapland.fi,  law student, university of fribourg, avenue de l‘europe 20, 1700 fribourg, switzerland; international law research intern, humanrightslawyer.eu. the denning law journal 131 1 introduction for many people who leave the middle east or africa, europe is the destination of their dreams. often fueled by unrealistic expectations, they risk their lives to escape war, persecution or poverty. for thousands, the mediterranean sea becomes a grave without a gravestone. 1 within europe, many from the formerly communist countries in the east move to the west in the hopes of a better life. in many cases is the life they find not better than the one they left behind; all too often, it is one of exploitation and violence. in particular young women are at risk of being forced into sexual slavery. the understanding of human trafficking for the purpose of sexual slavery which underlies this text is the view that actions which are essential for establishing or maintaining the slavery in questions are also slavery and hence equally prohibited. this includes human trafficking. likewise it includes e.g. violent acts against victims of slavery. such acts forming part of slavery states have an obligation to prevent them. oftentimes, human trafficking is confused with human smuggling. 2 the later refers to the illegal entry into a state 3 while the former is characterized by the abuse of power differentials for exploitative purposes. 4 while often mistakenly thought to be a thing of the past, slavery remains an important issue. indeed, it is thought that the late 20th and early 21st century has seen more slaves than any other time in human history. 5 in this article, it will be shown how the european convention on human rights (echr) 6 protects against human trafficking for the 1 maria margaronis, ‗the mediterranean has become the grave of migrants‘, thenation.com, 9 may 2014, available online at <http://www.thenation.com/blog/179776/mediterranean-has-become-gravemigrants>. 2 on the difference between trafficking and smuggling of humans see marina elefante, ‗slave women: the italian legal response to the international trafficking of women‘ (2007) 1 the protection project journal of human rights and civil society 1, 2. 3 ibid 3. 4 for a more detailed description, see elefante (n 2) 3. 5 terrence mcnally, ‗there are more slaves today than at any time in human history‘, alternet.org, 12 january 2015, available online at http://www.alternet.org/civil-liberties/there-are-more-slaves-today-any-timehuman-history. 6 council of europe, european convention for the protection of human rights and fundamental freedoms, as amended by protocols nos. 11 and 14, 4 november 1950, ets 5, available online at http://www.thenation.com/blog/179776/mediterranean-has-become-grave-migrants http://www.thenation.com/blog/179776/mediterranean-has-become-grave-migrants http://www.alternet.org/civil-liberties/there-are-more-slaves-today-any-time-human-history http://www.alternet.org/civil-liberties/there-are-more-slaves-today-any-time-human-history slavery under the european convention on human rights 132 purposes of slavery but also that in human trafficking can fall within the scope of the jus cogens prohibition of slavery under general public international law. 2. slavery the echr does not define the term ―slavery‖. 7 it does not have to do so. while in many way reminiscent of a self-contained regime, the echr is still an international treaty and as such its interpretation can be informed by international law in general for example the 1924 slavery convention. 8 for the purposes of the convention, the term ―slavery‖ is to be understood as ―the status or condition of a person over whom any or all of the powers attached to the right of ownership are exercised‖. 9 2.1 slavery in general public international law understanding international law requires understanding its historic background. 10 slavery has been around for millennia and has been outlawed in international law for long. the intercontinental slave trade of the colonial era led to efforts to outlaw slavery. 11 jus cogens rules are rules, which have to be obeyed at all times. 12 today, the prohibition of slavery is undoubtedly prohibited under international law 13 ; indeed the international law prohibition of slavery is a norm of jus cogens. 14 in http://www.echr.coe.int/documents/convention_eng.pdf. 7 christoph grabenwarter, europäische menschenrechtskonvention (3rd ed, beck 2008) 55. 8 united nations, slavery convention, 25 sept 1924, unts 60, 254. 9 grabenwarter (n 7) 55. 10 elefante (n 4) 7. on the development of anti-slavery law on the international level in the 18th century, see michael haas, international human rights a comprehensive introduction (1st ed, routledge 2008) 49 and 70. 11 david j. bederman, globalization and international law (1st ed, palgrave, 2008) 35; antonio cassese, international law (1st ed, oxford 2001) 350; christopher joyner, international law in the 21st century rules for global governance (1st ed, rowman & littlefield 2005) 136. 12 see entry "jus cogens" in the cornell university law school legal dictionary, legal information institute, available online at http://www.law.cornell.edu/wex/jus_cogens. 13 thomas buergenthal et al, grundzüge des völkerrechts (1st ed, cf müller 1988) 117. 14 rafael nieto-navia, ‗international peremptory norms (jus cogens) and international humanitarian law‘, available online at http://www.echr.coe.int/documents/convention_eng.pdf http://www.law.cornell.edu/wex/jus_cogens the denning law journal 133 addition, it is not only an obligation erga omnes 15 (an obligation of all subjects of international law 16 towards all other subjects of international law) but also omnium, meaning that slavery is prohibited for everybody, individuals, states, corporations and all other entities, persons and groups of persons. in addition, there is a rule of jus cogens which obliges all states to take positive action and fight slavery. 2.2 slavery and the law of the sea in the 1982 law of the sea convention 17 (losc), this duty has been codified in article 99, which follows similar rules which were contained in international treaties 18 against the trade in slaves. 19 since the 19th and early 20th century 20 a number of such treaties have been concluded, 21 leading to the current situation that slavery is absolutely illegal under international law. article 110 (1) (b) losc provides the legal powers to fulfill this duty by mentioning the reasonable suspicion of trade in slaves by use of a ship as one of the exceptional justifications for boarding a ship on the high seas. due to the jus cogens nature of this obligation, lit. (b) of this norm would not have necessary 22 as it would have followed from the jus cogens duty to fight slavery that such actions may be taken. rather than providing an argument against such a duty, lit. (b) losc has to be seen in the context of para. 1 of article 110 losc, which names all http://www.iccnow.org/documents/writingcolombiaeng.pdf. 15 for an overview over the arguments in favor of understanding rules concerning the protection of women as obligations erga omnes, see farhad malekian, ‗the laws governing crimes against women constituting obligatio erga omne‘, in david wingeate pike (ed), crimes against women (1st ed, nova 2011) 3, 15, with further references. 16 see stephan hobe / otto kimminich, einführung in das völkerrecht (8th ed, cf müller 2004) 64. 17 united nations, convention on the law of the sea, un doc. a/conf. 62/122, (1982) 21 international legal materials 1261. 18 for a short overview, see peter malanczuk, akehurst’s modern introduction to international law (1st ed, routledge 1997, reprint 1998) 21. 19 ibid 188. 20 thomas g weiss et al, the united nations and changing world policies (5th edn, westview 2007) 145. 21 see in detail nina lassen, ‗article 4‘, in gognundur alfredsson et al (eds), the universal declaration of human rights: a common standard of achievement (1st edn, springer netherland 1999) 87, and knut ipsen, völkerrecht (5th edn, beck 2004) 776, with further references. 22 for the opposite view, see dj harris, cases and materials on international law (5th edn, sweet & maxwell 1998) 431. http://www.iccnow.org/documents/writingcolombiaeng.pdf slavery under the european convention on human rights 134 grounds for boarding a ship on the high seas while for example para. 2 of the same norm explains the way in which such boarding may be undertaken etc. 2.3 slavery as an international crime. like a pirate, a slave trader is hostis humani generis, an enemy of all mankind. it can therefore be argued that there is also a universal obligation incumbent upon everybody to fight slavery. slavery is ―a crime under modern international law‖. 23 international criminal law does not cover human trafficking for purposes of forced prostitution. 24 this makes it necessary for states, and indeed for everybody, to take the necessary action to fight slavery. for states this means legislating and enforcing domestic laws which outlaw slavery. for individuals this can mean petitioning your state to actually create such laws or to enforce them better where this is not the case and to inform the authorities of cases of slavery should they become known. 2.4 slavery and the european convention on human rights human rights have sometimes been accused of becoming unclear or suffering from far-reaching demands which lead to a ―[r]ights [i]nflation‖. 25 the issue of slavery is at the exact opposite end of the spectrum in this regard: while de jure slavery is absolutely prohibited, it are de facto the victims who are in the weakest position and least able to speak out and demand their rights. this makes it necessary for human rights activists to take action and to engage in law fare for the purpose of ending slavery not only on paper but also in fact. from the perspective of european human rights law, slavery often receives little attention due to the small number of cases, which have been decided by the european court of human rights. 26 until v cyprus and russia, 27 the leading cases under article 4 echr seem to have been three cases against belgium which did not involve human trafficking: in de wilde, ooms and versyp v 23 joyner (n 11) 136. 24 joyner (n 11) 137. 25 george letsas, a theory of interpretation of the european convention on human rights (1st edn, oxford university press 2007) 120. 26 mark w janis et al, european human rights law text and materials (3rd edn, oxford university press 2008) 231. 27 european court of human rights, rantsev v cyprus and russia, application no. 25965/04, judgment of 7 january 2010. the denning law journal 135 belgium. 28 in the case of van droogenbroeck v belgium 29 ―the applicant submitted that the fact that he had been placed at the disposal of the government as a recidivist, had reduced him to a condition of servitude, since in fact he was subject to arbitrary supervision by the administrative authorities.‖ 30 back then, the commission outlined the elements of servitude in the negative while excluding mr. van droogenbroeck‘s claim 31 , specifically, ―because the measure was one of limited duration only, was subject to judicial review and did not affect the legal status of the person in question.‖ 32 van der mussele v belgium 33 concerned the duty of a trainee lawyer to represent impoverished clients for free. 34 the applicant in karlheinz schmidt v germany 35 complained of inequality before the law. while relating to legitimate concerns of the applicants, these cases seem far removed from the reality of slavery many victims experience everyday all over europe. siliadin v france dealt with the exploitation of a girl under the age of 18 from togo who was in france without a residence permit and who had been exploited there as a domestic worker and was handed over from one family to the next. 36 it was in rantsev v cyprus and russia 37 that the reality of many young women from eastern europe became relevant in the halls of strasbourg. 28 european court of human rights, de wilde, ooms and verysp v belgium, application nos. 2832/66; 2835/66; 2899/66, judgment of 18 june 1971. 29 european court of human rights, van droogenbroeck v belgium, application no. 7906/77, judgment of 24 june 1982. 30 leo zwaak, ‗freedom from slavery, servitude and force or compulsory labour‘ in pieter van dijk et al (eds), theory and practice of the european convention on human rights (1st edn, intersentia 2006) 443, 444. 31 van droogenbroeck v belgium (n 29) [58]. 32 zwaak (n 30) 444; van droogenbroeck v belgium (n 29). 33 european court of human rights, van der mussele v belgium, application no. 8919/80, judgment of 23 november 1983. 34 ibid. 35 european court of human rights, karlheinz schmidt v germany, application no. 13580/88, judgment of 18 july 1994. 36 european court of human rights, siliadin v france, application no. 73316/01, final judgment of 26 october 2005; roberta avellino, ‗trafficking in persons and the european convention of human rights‘, in strasbourg observer, 26 october 2011, available online at http://www.internationallawobserver.eu/2011/12/07/council-of-europe-fightingtrafficking-in-persons/, 3, on the efforts of the coe; ibid, 12, on siliadin v france. 37 rantsev (n 27). http://www.internationallawobserver.eu/2011/12/07/council-of-europe-fighting-trafficking-in-persons/ http://www.internationallawobserver.eu/2011/12/07/council-of-europe-fighting-trafficking-in-persons/ slavery under the european convention on human rights 136 the court‘s view 38 therefore does not go far enough. the decision in rantsev v cyprus and russia was an important landmark not only in terms of the application of article 4 echr to human trafficking, but also a problematic judgment. by allowing for limitations to the general duty to fight human trafficking the court overlooks that while slavery and human trafficking are distinct concepts, human trafficking can be an aspect of slavery. this was also the case in rantsev in this case, the duty to fight human trafficking is a part of the obligation to fight slavery. assuming that the european court of human rights did not intend to weaken either the jus cogens prohibition of slavery or the concept of jus cogens as a whole, it appears that the court, in following for the possibility that the obligation to fight human trafficking for the purpose of sexual slavery is not ―absolute‖ 39 , has overlooked that, while slavery and human trafficking normally are two different legal categories, here the latter is an essential element of the former and is therefore to be treated as such. in the case of slavery this means an absolute jus cogens and erga omnes obligation to combat it. in rantsev the court went into more detail than in the siliadin case 40 – but it did not yet go far enough: ―although the link between trafficking and slavery has been clearly acknowledged by the european court of human rights, that court has shied away from stating explicitly that trafficking amounts to enslavement‖. 41 should the court have to deal with a case like rantsev v cyprus and russia in the future, it would be welladvised to clarify the extent of what constitutes slavery. in vf v france 42 the court decided the applicant to be manifestly illfunded because the applicant was thought not to haven proven that the police should have known that the applicant was a victim of human trafficking and despite shortcomings in the domestic legal system (covering the protection against human trafficking) she was to be deported there to her home country. 43 a lack of evidence was also the reason why 38 rantsev (n 27) [287], see also ryszard piotrowicƶ , ‗states‘ obligations under human rights law towards trafficking in human beings: positive developments in positive obligations‘ (2012) 24:2 international journal of refugee law 181, 198. 39 ibid. 40 ibid 200. 41 ibid 201. 42 european court of human rights, vf c france, application no 7196/10. 43 ibid. the denning law journal 137 the application in m. and others v italy and belgium was dismissed as illfounded. 44 in f.a. v united kingdom the application was concluded inadmissible for failure to lodge an appeal in the domestic court system. 45 this highlights a problem, which is often overlooked. victims of human trafficking often lack access to legal counsel. often their identification documents have been taken away and in many cases they never have a real chance of learning the language of the country to which they have been trafficked. the state‘s obligation to fight slavery is not only negative but as already follows from the general rules of international law outlined earlier positive in nature. states must take effective action to fight slavery. accordingly, the united kingdom in c.n. v united kingdom was found to have violated art. 4 echr due to a lack of effective domestic anti-slavery legislation. 46 while slavery is outlawed on paper, this prohibition is not enforced effectively. while efforts against human trafficking are made by many european states, including the enforcement of criminal law, the duty of states goes beyond the criminal law dimension. states‘ obligations e.g. under article 6 echr, which guarantees the right to a fair trial, also include a duty to enable access to justice. this includes not only a necessity for the establishment of legal aid systems but also requires states to ensure that everybody has the possibility to retain legal counsel including victims of human trafficking. while we all have core human rights qua human, 47 there is a contradiction between the universality of human rights 48 and local conditions of enforcing them. 49 if human rights would have their origin in society, they would be local because when societies became aware of human rights there was no global society. how then do we explain the geltungsgrund of human rights? neither presumption is correct: there has always been a global society in the sense of francisco de vitoria‘s 44 european court of human rights, m and others v italy and bulgaria, application no 40020/03, final judgment of 17 december 2012. 45 european court of human rights, fa v the united kingdom, application no. 20658/11. 46 european court of human rights, cn v the united kingdom, application no. 4239/08, final judgment of 13 february 2013. 47 mark gibney, international human rights law returning to universal principles (1st edn, rowman & littlefield 2008) 3. 48 ibid. 49 christoph menke/arnd pollmann, philosophie der menschenrechte zur einführung (1st edn, junius 2008) 39. slavery under the european convention on human rights 138 totus orbis 50 but it would only have been necessary for the emergence of human rights in so far as a right require an other in relation to whom to claim it. even the smallest groups of humans formed a society in thus widest sense of the term. there have been rights far as long as there have been humans, even before there were concepts or words to describe them. these (proto-) rights include the right to life and the right to be free, not enslaved. these rights follow from the most basic desires of every human, from our nature. in this sense, they are natural rights. later, other rights gained a status of similar importance and the development of language and laws further strengthened the awareness of rights. 51 also under the echr, 52 slavery is ―absolutely‖ 53 prohibited, 54 without any room for justifications. 55 article 4 (1) echr prohibits ―slavery or servitude‖ while under para. 2 ―[n]o one shall be required to perform forced or compulsory labour‖, which is defined further in para. 3. servitude is not the same as slavery. 56 while ―servitude implies being compelled to live on someone else‘s property as well as being required to work.‖ 57 slavery has not been legally defined within the context of article 4 echr. 58 while the european convention on human rights is a selfcontained regime within international law, it remains part of public international law as a whole. therefore the definition of slavery within article 4 echr is the same as that of slavery in public international law in general. 50 josé carlos rojano esquivel, ‗del toto orbis al ordo orbis. el pensamiento internacionalista de fracisco de vitoria‘ (2013) available online at http://biblio.juridicas.unam.mx/libros/8/3540/11.pdf. 51 menke (n 49) 39. 52 on slavery under article 4 of the universal declaration of human rights, see lassen (n 21) 87. 53 philip leach, taking a case to the european court of human rights (2nd edn, oxford university press, 2007) 218. 54 ana maria guerra martins, direito internacional dos direitos humanos (1st edn, al medina, 2013) 208. 55 janis et al (n 26) 230; grabenwarter, (n 7) 156. 56 the same distinction is used in article 8 of the international covenant on civil and political rights; lassen (n 21) 93. 57 leach (n 53) 218; european commission of human rights, van droogenbroeck v belgium, application no. 7906/77, report of 24 june 1982, 79. 58 leach (n 53) 218; grabenwarter (n 7) 156. http://biblio.juridicas.unam.mx/libros/8/3540/11.pdf the denning law journal 139 forced and compulsory labour within the meaning of article 4 paras. 2 and 3 echr can even include cases in which the victim receives some payment. 59 3. human trafficking 3.1 background violence against women is a very widespread phenomenon, 60 yet there is a serious ―lack of public (official) awareness‖. 61 even when public officials speak out against it, often not enough is being done: ―violence against women and girls continues unabated in every continent, country and culture. it takes a devastating toll on women‘s lives, on their families, and on society as a whole. most societies prohibit such violence — yet the reality is that too often, it is covered up or tacitly condoned.‖ 62 gender equality is not enough to provide the protection victims of human rights need, gender neutral law (if one assumes that international human rights law is gender neutral in the first place, a notion which is being challenged 63 although ―[w]omen themselves have begun to use the ―mainstream‖ human rights systems more effectively‖ 64 ). while there are also male victims, human trafficking for the purpose of sexual slavery is a crime which targets mainly women. not enforcing the prohibition of slavery effectively not only is an omission which runs counter to jus cogens obligations of states but primarily violates women‘s rights. the council of europe has fought trafficking, 65 for example with the 59 leach, ibid n 53, 219; european court of human rights, van der mussele v belgium, application no. 8919/80, judgment of 23 november 1983, 34. 60 rhona k. m. smith, texts and materials on international human rights (2nd edn, taylor and francis 2010) 704. 61 ibid 705. 62 ban ki-moon, quoted by ruchi anand, ‗the human rights design: a critique of ‗universality‘ in a patriarchal world‘, in pike (ed) ibid ns 15, 23, 23. 63 georgina ashworth, ‗the silencing of women‘, in tim dunne / nicholas wheeler (eds), human rights in global politics (1st edn, cambridge university press 1999) 259, 259; for a feminist view on the universal declaration of human rights see anand n 62) 23, 25. 64 ashworth ibid 271. 65 ibid; on international law as a tool to fight human trafficking in particular as it relates to modern-day slavery, see kuanruthai siripatthanakosol, human trafficking for sexual exploitation: the framework of human rights protection, doctoral thesis newcastle law school (2010) 77; on efforts by the council of europe in particular see ibid 248. slavery under the european convention on human rights 140 convention on action against trafficking in human beings. 66 the conventions lays its focus on the victims; it does so with anti-trafficking actions and aims to assist and protect victims of human trafficking. in order to achieve this aim, the convention has included in article 5 (3) the "obligation for parties to promote a human rights-based approach in the development, implementation and assessment of the policies and programs to prevent human trafficking". 67 states are obligated to prevent human trafficking, prosecute and punish traffickers, and engage in international co-operation. 37 european countries have already submitted themselves to the convention (including the uk) and thus have committed themselves to upholding its standards. very important to this process is the mechanism to monitor the states‘ compliance with the obligations contained in the convention. this monitoring mechanism‘s purpose is to ensure that the convention‘s provisions do not remain a dead letter, but are effectively implemented. 68 the holistic, preventative and multi-disciplinary approach of the echr encourages co-ordination between the various parties involved in the process. article 5 (3) summons the state parties to promote a human rights-based approach and use gender mainstreaming and a child-sensitive approach to the development and implementation of prevention policies and programs. 69 upping the actions taken toward prevention of trafficking in human beings is one of the five priorities of the recently published eu strategy towards the eradication of trafficking in human beings (2012– 2016). 3.2 human trafficking under the european convention on human rights unlike article 5 of the european union‘s charter of fundamental rights, 70 article 4 echr does not spell out in express terms that human trafficking is prohibited 71 but that does not mean that the european 66 council of europe, convention on action against trafficking in human beings, 16 may 2005, cets 197. 67 petya nestorova, ‗bringing human trafficking out of the shadows: presentation by petya nestorova, executive secretary of the council of europe convention on action against trafficking in human beings‘, 21 november 2012, 1, available online at www.bawso.org.uk/assets/.../petya-presentations.doc. 68 ibid. 69 ibid. 70 ibid. 71 christoph grabenwarter, european convention on human rights (1st edn, beck, 2014) 58. http://www.bawso.org.uk/assets/.../petya-presentations.doc the denning law journal 141 convention on human rights would not provide protection against human trafficking to the contrary. 72 the definition of human trafficking employed by the court is based on the protocol to prevent, suppress and punish trafficking in persons, especially women and children 73 , also known as the palermo protocol. 74 human trafficking ―aims at exploiting a person, over whom powers comparable to the right of ownership are exercised. victims are treated and traded as goods and forced to labour usually of sexual nature for little or no remuneration.‖ 75 human trafficking has an international dimension 76 but while ―transnational criminal law‖ 77 is important in the fight against human trafficking, 78 it remains the responsibility of the national states to secure local law enforcement. 3.3 human trafficking for slavery human trafficking as slavery since rantsev it is clear that article 4 echr protects against human trafficking 79 but the court went a (dramatic but necessary) step further. in the words of christoph grabenwarter: ―by extending the scope of protection of article 4 [echr] to trafficking […], it is now possible to enforce [the rules which are reflected also by] the palermo protocol and the council of europe convention on action against trafficking in human beings by making use of the system of legal protection of the convention‖. 80 grabenwarter here refers directly to the mentioned protocol and convention although to be more precise what is actually enforced are the rules reflected therein, not these legal texts and obligations flowing from them. grabenwarter seems to share this view as 72 ibid. 73 united nations, protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the united nations convention against transnational organized crime, 15 november 2000, unts 2237, 319. 74 grabenwarter (n 71) 58. 75 ibid. 76 elizabeth ivana yuko, theories, practices and promises: human trafficking laws and policies in destination states of the council of europe, llm thesis dublin city university school of law and government (2009) 11. 77 neil boister, ‗transnational criminal law?‘ 14:5 (2003) european journal of international law 5 953. 78 yuko (n 76) 11. 79 grabenwarter (n 71) 59. 80 ibid 58. slavery under the european convention on human rights 142 he continues to write that ―a new obligation is imposed upon member states [of the council of europe], which they have not agreed upon‖. 81 however, we disagree within on the geltungsgrund of this obligation. grabenwarter continues by writing that this ―new obligation‖ 82 will ―bind them [i.e. the states which are parties to the echr but not to the aforementioned protocol and convention] only after ratification of a corresponding additional protocol.‖ 83 while this is true of said legal texts, the basis for the obligation to prevent human trafficking is found not only in customary international law but in jus cogens as human trafficking is a part of slavery 84 and as such absolutely outlawed. on this legal basis, all states worldwide are obliged to take positive action against slavery, including sexual slavery and the human trafficking and exploitation which come with it. as was highlighted in rantsev v cyprus and russia, 85 this obligation is in particular incumbent on states where human trafficking begins and where exploitation happens. the obligation to fight slavery, though, is universal. in particular target countries, such as germany (which after the legalization and regulation of prostitution under the schröder government has become europe‘s brothel 86 ). this obligation is not only objective and limited to the inter-state relations between the parties to the echr but individuals have a right towards the state that the state takes positive action to protect individuals against human rights violations by non-state actors. 87 4. conclusions and outlook after world war ii the states, which ratified the european convention on human rights became models for human rights, which other states strived to emulate. yet, today human trafficking for the purpose of slavery is a highly lucrative business. a lot has been achieved in the last 81 ibid. 82 ibid. 83 ibid 59. 84 see already see jean allain, ‗rantsev v cyprus and russia: the european court of human rights and trafficking as slavery‘, 10 (2010) human rights law review 546, 550 et seq. 85 rantsev (n 27) 308. 86 no author named, ‗brothel crackdown: politicians aim to reform prostitution laws‘, in spiegel online, 22 april 2013, available online at http://www.spiegel.de/international/germany/german-coalition-backs-tougherprostitution-laws-to-curb-trafficking-a-895748.html. 87 anne peters, einführung in die europäische menschenrechtskonvention (1st edn, beck 2003) 15. the denning law journal 143 generations but the existing system is not used effectively enough to protect everybody. the law already exists to make slavery history. what is needed now is the political will to enforce it. states, international organizations and non-governmental organizations (ngos) 88 have at their disposal ―a diverse armoury of pressures against delinquent states‖. 89 when it comes to human trafficking, though, almost all states are involved in one way or an other, often simply by turning a blind eye to the suffering of the victims. globalization makes trafficking easier but it also makes it easier to fight it. despite having been outlawed, slavery has been a part of human history for such a long time that even some of the greatest political thinkers and statesmen (and due to the discrimination of women for millennia, records are available mainly of the political thinkings of men, which might contribute to the neglect with which the issue has been treated for too long) such as jefferson 90 and john locke 91 took slavery as a given. but even in the current age of human rights, slavery continues unabated. indeed, it is thought that there are today more slaves than at any other time in human history. 92 while the increase in the overall human population might explain this phenomenon at least in part, the fact that slavery actually still exists despite generations of efforts to eliminate it, is testament to the failure of the international community. it also reflects negatively on the value of human rights to those in power: ―needless to say, human rights are still easier to endorse than to enforce. the steady stream of international conferences and conventions against genocide, slavery, the use of torture, and racism, and for the protection of women, children, and minorities show that human rights remain in need of rescue‖. 93 88 on the important role of ngos, see elena pariotti, ‗non-state actors, international law and human rights‘, in sanford r silverburg (edn), international law contemporary issues and future developments (1st edn, westview 2011) 95, 96. 89 henry j steiner, ‗international protection of human rights‘, in malcolm d. evans (edn), international law (3rd edn, oxford university press 2010) 784, 799. 90 lynn hunt, inventing human rights a history (1st edn, ww norton 2007) 22. 91 ibid 119. 92 mcnally (n 5) 93 hunt (n 90) 208. slavery under the european convention on human rights 144 the universal declaration of human rights 94 (udhr), which outlaws slavery in article 4, is seen as evidence of a global consensus on certain values. 95 the continued existence of slavery and human trafficking, shows that while there might be some (albeit not necessarily universal) consensus that there should be such rights, there is still no consensus as to the enforcement of such rights. otherwise states would take concerted efforts to free the world‘s 27 million 96 slaves. the ideas of humanitarian intervention and the responsibility to protect are not necessarily dead in the water but international action merely for the protection of human rights is still the exception rather than the norm. the problem of human trafficking and slavery could be solved if all states were not only to create but also to enforce laws to outlaw such crimes. the continued existence of such crimes, in particular violence against women, indicates the absence of a true consensus. however, a consensus 97 is not necessary to find that slavery (and the actions which facilitate it, such as human trafficking and forced prostitution) is absolutely incompatible with the most fundamental human rights. slavery would also be outlawed if there would not be a single word of positive law in this regard. it makes one wonder what it says about a world in which these most basic rights are ignored and indeed violated permanently, where unimaginable wealth and suffering exist next to each other. the continued existence of slavery is a disgrace to the international community and all of us. when used for the aim of creating or establishing a situation of slavery, human trafficking is prohibited by jus cogens. 98 yet, it continues on a large scale: ―despite the fact that there are many international legal instruments applicable when preventing and combating human trafficking, there are also difficult challenges that need to be overcome in order to achieve appreciable results.‖ 99 only relatively few victims 100 are identified 94 united nations, universal declaration of human rights, 10 december 1948, unts 999, 302. 95 norberto bobbio, das zeitalter der menschenrechte ist toleranz durchsetzbar? (1st edn, wagenbach, 1998) 9. 96 didi kirsten tatlow, ‗27 million people said to live in ‗modern slavery‖, in the new york times, 30 june 2013, available online at http://rendezvous.blogs.nytimes.com/2013/06/20/27-million-people-said-to-livein-modern-slavery/?_r=0. 97 for the natural law perspective on this issue, see bobbio, ibid n 95, 9. 98 see also allain (n 84) 550 et seq. 99 venla roth, defining human trafficking and identifying its victims a study on the impact and future challenges of international, european and finnish http://rendezvous.blogs.nytimes.com/2013/06/20/27-million-people-said-to-live-in-modern-slavery/?_r=0 http://rendezvous.blogs.nytimes.com/2013/06/20/27-million-people-said-to-live-in-modern-slavery/?_r=0 the denning law journal 145 and a very small number of perpetrators is actually punished. 101 international law, in particular in europe, already provides a more than sufficient legal basis to require states to take positive action against human trafficking and slavery. the problem at hand is primarily one of insufficient law enforcement. legal responses to prostitution-related trafficking in human beings (2012) 153. 100 ibid. 101 ibid. 185 the denning law journal 2018 vol 30 pp 185-202 statute note money laundering, public beneficial ownership registers and the british overseas territories: the impact of the sanctions and money laundering act 2018 (uk) john hatchard* 1 introduction the revelations from the panama papers 1 have highlighted the potential use of off-shore shell and shelf companies based in the british overseas territories and crown dependencies to facilitate money laundering, tax evasion, the financing of terrorism and other serious and organised crime. the use of such companies has enabled the natural person(s) who ultimately owned or controlled the company to remain concealed behind a nominee director(s) and nominee shareholder(s).2 this has led to international interest and pressure to increase the transparency in the beneficial ownership of such companies. this note explores the important recent developments towards enhancing beneficial ownership transparency, especially as regards the united kingdom (uk) and its overseas territories (ots) and crown dependencies (cds). it is divided into five sections. this section provides an introduction and background to the issue. section 2 reviews some of the ongoing international efforts aimed at improving transparency in beneficial ownership and that is spearheaded by the financial action task force and the g20. section 3 considers beneficial ownership transparency * professor, school of law, university of buckingham. email: john.hatchard@buckingham.ac.uk 1 for details, see the website of the consortium of investigative journalists <https://www.icij.org/> accessed 20 july 2018. 2 the conference of state parties to the united nations convention against corruption, report of the international group meeting on beneficial ownership (cac/cosp/2017/crp.5) para 32, also notes that corruption schemes increasingly use new sophisticated types of corporate vehicles with so-called “tax havens or secrecy jurisdictions” being used to facilitate the criminality. mailto:john.hatchard@bu money laundering, public beneficial ownership registers and the british overseas territories 186 and law enforcement cooperation with reference to the uk, ots and cds. section 4 then focuses on the development of public registers of the beneficial ownership of companies in the ots following the passing of the sanctions and money laundering act 2018. the final section contains a short conclusion. there are 14 overseas territories including anguilla, bermuda, the british virgin islands, cayman islands, gibraltar and the turks & caicos islands 3 whilst the crown dependencies comprises the bailiwick of guernsey, the bailiwick of jersey and the isle of man. 4 all are of international significance as offshore financial centres. yet, as nicholls et al have pointed out, there has been “persistent criticism of the offshore financial sector … since there exist jurisdictions in which legal frameworks and practices obscure the identity of beneficial owners by, for example, placing ownership in the hands of nominee directors and shareholders”. 5 indeed the uk national crime agency has reportedly calculated that £90 billion is laundered through the uk each year and that “this laundering can only be done, by and large, through british overseas territories, which are central to this nefarious activity”.6 the use of off-shore shell and shelf companies to purchase expensive real estate was highlighted in a 2014 study by transparency international which found that 9.3 per cent of properties in the city of westminster, 7.3 per cent in kensington & chelsea, and 4.5 per cent in the city of london were owned by shell companies registered in an offshore “secrecy” jurisdiction.7 the study further revealed that 36,342 london properties 3 the full list is set out in the british nationality act 1981, sch 6. for a useful historical survey of the caribbean ots see peter clegg, ‘non-self-governing territories of the caribbean and debates over autonomy’ in j west (ed), south america, central america and the caribbean 2016 (24th edn, routledge 2016) 33-39: available at <http://eprints.uwe.ac.uk/27446/3/sac.essay.21.2.pdf> accessed 10 july 2018. for a useful history of the ots see foreign & commonwealth office, overseas territories: security, success and sustainability (white paper, cm 8374, 2012). 4 within the bailiwick of guernsey there are three separate jurisdictions: guernsey (which includes the islands of herm and jethou); alderney; and sark (which includes the island of brecqhou). 5 colin nicholls and others, corruption and misuse of public office (3rd edn, oup 2017) para 23.04. 6 andrew mitchell mp in the house of commons debate of the report stage of the sanctions and anti-money laundering bill deb 1 may 2018, 42. 7 transparency international, corruption on your doorstep: how corrupt capital is used to buy property in the uk (transparency international, 2014) 16. http://eprints.uwe.ac.uk/27446/3/sac.essay.21.2.pdf the denning law journal 187 were held by offshore companies with the vast majority being registered in the ots and cds.8 the organisation for economic cooperation and development (oecd) has defined shell companies as: “… entities established not to pursue legitimate business activity but solely to obscure the identity of their beneficial owners and controllers”9 and noted further that a shell company functions as a corporate veil, providing an effective screen separating criminals from illicit financial activities. findlay has also commented that “shell companies that cannot be linked back to the real individuals in control create near-insuperable obstacles for regulators and law enforcement officials”.10 “shelf companies” have also been identified as posing a particular problem as they “provide individuals with a company history and a set of company officials unrelated to the corrupt individual”.11 in this context, a beneficial owner is defined in the financial action task force (fatf) recommendations as follows: “beneficial owner refers to the natural person(s) who ultimately owns or controls a customer and/or the natural person on whose behalf a transaction is being conducted. it also includes those persons who exercise ultimate effective control over a legal person or arrangement”.12 reflecting the often complex ownership and control structures of companies, the fatf recommendations add: “reference to “ultimately owns or controls” and “ultimate effective control” refer to situations in which ownership/control is 8 ibid 5. more than one third of all foreign companies holding london property were incorporated in the british virgin islands (13,831 properties), jersey 14% (5,960 properties), the isle of man 8.5% (3,472 properties) and guernsey 8% (3,280 properties). 9 oecd steering committee on corporate governance, behind the corporate veil: using corporate entities for illicit purposes (paris, 2001) 17. 10 michael findlay, daniel neilson and jason sharman, ‘global shell games: testing money launderers’ and terrorist financiers’ access to shell companies’ (centre for governance and public policy, 2012) 5 < http://www.gfintegrity.org/wp-content/uploads/2014/05/global-shell-games2012.pdf> accessed 20 july 2018. 11 cosp (n 2) para 50. 12 glossary to the fatf recommendations. money laundering, public beneficial ownership registers and the british overseas territories 188 exercised through a chain of ownership or by means of control other than direct control”.13 thus the need to identify the beneficial ownership of companies, (and not just shell and shelf companies), has become of international and national significance in the fight against serious crime. 2 international efforts to improve transparency international efforts to improve the transparency and availability of beneficial ownership information are of relatively recent origin and have particularly focused on the work of the financial action task force and the g20.14 2.1 the financial action task force (fatf) the fatf is an inter-governmental body comprising 37 members. however, through its system of fatf-style regional bodies, some 190 countries are now members of the fatf “family”. its role is to set internationally recognised standards to combat money laundering and this is done through the fatf recommendations.15 in 2003 the fatf for the first time addressed the issue of beneficial ownership and in particular the need for “competent authorities”16 to have access to beneficial ownership information for the purpose of investigation and prosecution. the most recent set of fatf recommendations are the international standards on 13 ibid. 14 another key player is the global forum on transparency and exchange of information for tax purposes. the global forum is “an international body for ensuring the implementation of the internationally agreed standards on tax transparency and exchange of information in the tax area”: see <https://www.oecd.org/tax/transparency/about-the-global-forum/> accessed 15 july 2018. 15 see further <http://www.fatf-gafi.org/> accessed 25 july 2018. the uk is a member of fatf. the ots and cds are not members but are subject to assessment as to their compliance with the fatf recommendations. 16 “competent authorities” refers to “all public authorities with designated responsibilities for combating money laundering and/or terrorist financing”. this includes law enforcement and prosecutorial authorities, supervisory authorities, tax authorities and financial intelligence units: see the glossary to the fatf recommendations. the denning law journal 189 combating money laundering and the financing of terrorism & proliferation (the fatf recommendations). published in 2012 they contain (amongst many other things) “essential measures” that all members of the fatf “family” are required to have in place “to enhance the transparency and availability of beneficial ownership information of legal persons and arrangements”. in particular, recommendation 24 states that: “countries should [must]17 ensure that there is adequate, accurate and timely information on the beneficial ownership and control of legal persons that can be obtained or accessed in a timely fashion by competent authorities…”.18 further, an interpretive note to recommendation 24 states that: “competent authorities should [must] be able to obtain, or have access in a timely fashion to, adequate, accurate and current information on the beneficial ownership and control of companies and other legal persons (beneficial ownership information) that are created in the country”. as regards trusts, recommendation 25 states that countries “should [must] ensure that there is adequate, accurate and timely information on express trusts, including information on the settlor, trustee and beneficiaries that can be obtained or accessed in a timely fashion by competent authorities”.19 improving the transparency and availability of beneficial ownership information remains a high priority, especially as few countries, including 17 the glossary to the fatf recommendations states that “for the purposes of assessing compliance with the fatf recommendations, the word “should” has the same meaning as “must”‘. 18 the fourth european union (eu) money laundering directive was published in 2015 and reflects the additional aml obligations contained in the fatf recommendations. eu member states were required to implement the directive by june 2017. 19 in 2014 the fatf published its guidance on transparency and beneficial ownership. this requires states to ensure that measures are in place to: prevent legal persons or arrangements from being used for criminal purposes; make legal persons/arrangements sufficiently transparent; and ensure that accurate and up-todate basic and beneficial ownership information is available on a timely basis. money laundering, public beneficial ownership registers and the british overseas territories 190 g20 countries, have effective cooperation mechanisms in place.20 clearly, this remains work in progress. it might also be noted that the focus of the fatf is on law enforcement cooperation and there is no mention in the fatf recommendations of the need for member countries to establish a public register of beneficial ownership of companies or trusts. 2.2 g20 the g20 is an informal group of 19 countries and the european union that addresses issues relating to international economic cooperation. reducing corruption remains a high priority and at its 2014 meeting in australia the g20 high-level principles on beneficial transparency ownership (the principles) were agreed. these are a set of “core principles on the transparency of beneficial ownership of legal persons and arrangements and are built on existing international instruments and standards”.21 the principles include the following: 1. countries should have a definition of “beneficial ownership” that captures the natural person(s) who ultimately own or control the legal person or legal arrangement;… 3. countries should ensure that legal persons maintain beneficial ownership information onshore and that information is adequate, accurate and current; 4. countries should ensure that competent authorities (including law enforcement and prosecutorial authorities, supervisory authorities, tax authorities and financial intelligence units) have timely access to adequate, accurate and current information regarding the beneficial ownership of legal persons and legal arrangements. again, there is no reference to a requirement for states to introduce a public register of beneficial ownership. 20 the fatf has reported that to date (july 2018) “… few countries have demonstrated that information is available to competent authorities on the beneficial owner of legal persons and arrangements, or that these persons and arrangements are prevented from being misused.” fatf report to the g20 finance minister and central bank governors (paris, 2018) para 23 <https://www.fatf-gafi.org/media/fatf/documents/reports/fatf-report-g20-fmcbg-july-2018.pdf> accessed 27 july 2018. 21<www.g20.org/sites/default/files/media/g20_highlevel_principles_on_beneficial_ownership_transparency.pdf> accessed 15 july 2018. the denning law journal 191 3 beneficial ownership transparency and law enforcement cooperation: the uk, ots and cds 3.1 the constitutional relationship between the uk, ots and cds examining the constitutional relationship between the uk and the ots and the uk and the cds respectively is fundamental to an understanding of recent developments concerning beneficial ownership transparency. the relationship between the uk and the ots is set out in a 2012 uk government white paper entitled overseas territories: security, success and sustainability (the ot white paper): “the uk, the overseas territories and the crown dependencies form one undivided realm…. each territory has its own constitution and its own government and has its own local laws. as a matter of constitutional law the uk parliament has unlimited power to legislate for the territories. territory constitutions set out the powers and responsibilities of the institutions of government, which for most territories include a governor or commissioner, an elected legislature and ministers. governors or commissioners are appointed by her majesty the queen on the advice of her ministers in the uk, and in general have responsibility for external affairs, defence, internal security (including the police) and the appointment, discipline and removal of public officers. elected governments have a wide range of responsibilities” (my emphasis). the italicised words are crucial as they emphasise that the crown retains a residual power to legislate for the ots. indeed this is specifically provided for in some constitutions of the ots. for example, section 125 of the cayman islands constitutional order 2009 states: “there is reserved to her majesty full power to make laws for the peace, order and good government of the cayman islands”.22 the exercise of this power is normally undertaken by means of an order in council. responsibility for the ots falls on the uk foreign & commonwealth office. 22 si no 1379. see also the turks & caicos constitutional order 2011 that is noted below. such orders may be subject to judicial review: r (bancoult) v sosfca (no 2) [2008] ukhl 61, [2009] ac 453. http://www.publications.parliament.uk/pa/ld200708/ldjudgmt/jd081022/banc-1.htm http://www.publications.parliament.uk/pa/ld200708/ldjudgmt/jd081022/banc-1.htm money laundering, public beneficial ownership registers and the british overseas territories 192 the cds have a very different constitutional history. the channel islands (and probably the isle of man) have never been a colony or conquered or ceded territory and they are not part of the united kingdom administratively or legally. 23 further, they have never had any parliamentary representation in the house of commons.24 they are selfgoverning dependencies of the crown with their own directly elected legislative assemblies, administrative, fiscal and legal systems and law courts.25 the uk ministry of justice, crown dependencies branch, is responsible for managing the constitutional relationship with the cds.26 as regards uk legislation, the position is as follows: “uk legislation rarely extends to the crown dependencies and should not be extended without first consulting the islands” 23 guernsey and jersey were originally part of the duchy of normandy when duke william, following his conquest of england in 1066, became king william i of england. in 1204 when king john lost normandy to the french, the islands elected to remain loyal to the english crown. the isle of man first came under the english crown in 1399, in circumstances which arguably suggest that it is a conquered territory. the point is of no significance today. see generally ministry of justice, background briefing on the crown dependencies: jersey, guernsey and the isle of man (no date) <www.justice.gov.uk/downloads/about/moj/ourresponsibilities/background_briefing_on_the_crown_dependencies2.pdf> accessed 20 july 2018. 24 this provides the basis for an argument that the principle that there should be no legislation without representation undermines the power of the uk parliament to legislate for the cds: see protocol to the european convention of human rights, art 3; mathews v united kingdom (1999) 28 ehrr 361. a similar argument might be made in respect in the ots. 25 see r (barclay) v secretary of state for justice [2014] uksc 54, [2015] ac 276. as lady hale, giving the judgment of the supreme court noted: “not being part of the united kingdom, unlike wales, scotland and northern ireland, the bailiwicks are not represented in the parliament of the united kingdom. they are economically self-sufficient. they pay no taxes to the united kingdom and they receive no contribution from the revenues of the united kingdom. they were not settled by, or conquered by or ceded to, the united kingdom as colonies. their link with the united kingdom and the rest of the commonwealth is through the crown, not in the sense of the ultimate executive authority in the united kingdom, but in the sense of the person of the sovereign. the sovereign’s personal representative in each bailiwick is the lieutenant governor” [8]. 26 this involves a variety of different responsibilities including involvement in key crown appointments, processing legislation for royal assent and issuing letters of entrustment authorising crown dependency governments to negotiate and conclude international agreements. the denning law journal 193 authorities and obtaining their consent. in instances where it does extend, it may do so either by virtue of the act itself or by order in council made with their agreement under an enabling provision contained in the act which provides for it to be extended to the crown dependencies” (my emphasis).27 the highlighted words emphasise that uk legislation does not normally extend to the cds and in any event requires prior consultation with, and consent from, each of them.28 it seems doubtful that an order in council made under the prerogative could be effective in respect of domestic matters in the cds without the consent of the local legislatures.29 3.2 law enforcement cooperation between the uk, ots and cds a recent united nations report has noted that “from a law enforcement perspective, the abuse of “foreign” corporate vehicles that are incorporated outside the main jurisdiction where the … offence was committed constitutes the greatest problem, as it requires international cooperation”.30 this is particularly significant in that for the purposes of mutual legal assistance requests, each of the ots and cds is a separate jurisdiction. at the 2016 london anti-corruption summit, the then british prime minister, david cameron, proposed greater compliance by the ots and cds to provide uk tax and law enforcement authorities with access to 27 uk ministry of justice ‘factsheet on the uk’s relationship with the crown dependencies’ (2014) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/att achment_data/file/696152/crown-dependencies-factsheet.pdf> accessed 17 july 2018. this reflects the position set out, for example in the states of jersey law 2005, art 31. 28 for a helpful discussion on the constitutional relationship see michael birt, ‘the power of the uk to legislate for the crown dependencies without consent: fact or fiction?’ (2017) 21(2) jersey and guernsey law review 152. 29 this point is beyond the scope of this note. the issue is explored by birt who argues that the only circumstances where the prerogative power could be exercised contrary to the wishes of the legislature in a cd would be where there has been a grave breakdown in law and order. in any other circumstance, it would be unreasonable and subject to judicial review, applying bancoult (n 23); ibid 161-162. 30 cosp report (n 2) para 33. money laundering, public beneficial ownership registers and the british overseas territories 194 company ownership records. in april 2016 this resulted in an exchange of notes between the uk government and each of the key ots and the cds.31 in each note, the uk and respective government (referred to as the “participants”) recognised: “the importance of the provision of beneficial ownership information for the prevention and detection of corruption, money laundering, terrorism financing, financing of the proliferation of weapons of mass destruction and other serious and organised crime”.32 each individual note focuses on three key commitments by each of the participants: i) to provide the law enforcement authorities of the other participant with beneficial ownership information for corporate and legal entities incorporated in their respective jurisdiction; ii) to hold adequate, accurate and current beneficial ownership information for corporate and legal entities incorporated in their own jurisdictions; and iii) to give law enforcement authorities of the participants the “automatic” right to the provision of unrestricted and timely (within twenty-four hours or, where urgently required, within an hour) beneficial ownership information held in the other jurisdiction.33 this is a startling development, especially given the fact that previously, such information could only be requested by the uk via the mutual legal assistance process. these commitments were made having regard to the fatf and g20 initiatives and the uk government’s decision to introduce a public central register of beneficial ownership.34 the exchange of notes therefore provides for the “timely, safe and secure access for law enforcement [and tax] authorities to beneficial 31 beneficial ownership: exchange of notes between the uk government, overseas territories and crown dependencies. 32 see exchange of notes between the government of the united kingdom and the government of the cayman islands in respect of the sharing of beneficial ownership information, para 2. 33 a technical protocol is attached to each exchange of notes setting out the practicalities of the arrangements (the technical protocol). 34 see technical protocol, para 3. the denning law journal 195 ownership information”, with the security of the request and information being provided specifically provided for in each note.35 it remains to be seen whether any legal challenges arise from the exchange of beneficial ownership information in this manner, especially given the time-frame in which the information can be demanded.36 since then, the ots and cds have reportedly made “significant progress in implementing the commitments by introducing legislation and establishing, where they did not already exist, central registers or similar effective systems”.37 this represents a major step forward in assisting law enforcement agencies and tax authorities identify the ultimate beneficial ownership of companies registered in the ots and cds. indeed the commitments place the ots and cds ahead of most other jurisdictions and also exceed the current fatf requirements. in may 2018, the minister for europe and the americas, sir alan duncan, informed the house of commons that the arrangements had been used over seventy times and that this beneficial ownership data had “enhanced intelligence leads and investigations on illicit finance”.38 4 the sanctions and anti-money act 2018: towards the introduction of public beneficial ownership registers whilst making beneficial ownership information available to law enforcement authorities is a major step forward, the panama papers disclosures increased the pressure from civil society organisations, in particular, for states to introduce a public registry of beneficial ownership. 35 see technical protocol, para 7(vi). 36 for example, whether the demand meets the criteria for the provision of such information, especially if it is demanded within an hour. for a critical comment see fillipo noseda, ‘too much information: when the uk gets it wrong’ (2017) 21(2) jersey and guernsey law review 182 especially at 193-194. the author also asserts that “the uk government managed to strong-arm the crown dependencies and a number of overseas territories into signing [the exchange of notes]” at 189-190. 37 see statement to the house of commons by sir alan duncan, minister for europe and the americas, hc deb 1 may 2018, vol 640 <https://hansard.parliament.uk/commons/2018-0501/debates/18050126000009/beneficialownershipinoverseasterritoriesandcro wndependencies> accessed 10 july 2018. 38 ibid. https://hansard.parliament.uk/commons/2018-05-01/debates/18050126000009/beneficialownershipinoverseasterritoriesandcrowndependencies https://hansard.parliament.uk/commons/2018-05-01/debates/18050126000009/beneficialownershipinoverseasterritoriesandcrowndependencies https://hansard.parliament.uk/commons/2018-05-01/debates/18050126000009/beneficialownershipinoverseasterritoriesandcrowndependencies money laundering, public beneficial ownership registers and the british overseas territories 196 the uk is the first g20 country to introduce such a register. section 81 of the small business, enterprise and employment act 2015 amended the companies act 2006 and requires companies to keep a “register of people who have significant control over the company”. a “person with significant control” (psc) is an individual who meets one or more of the following conditions: directly or indirectly holds more than 25% of shares in the company; directly or indirectly holds more than 25% of voting rights in the company; directly or indirectly holds the right to appoint or remove a majority of the directors of the company; has the right to exercise, or actually exercises, significant influence or control over the company; where a trust or firm would satisfy one of the first four conditions if it were an individual, any individual holding the right to exercise, or actually exercising, significant influence or control over the activities of that trust or firm. this is not limited to the trustee of the trust. the annual returns by companies (known as “confirmation statements”) must contain beneficial ownership details. the register is accessible to the public free of charge.39 at that point, the uk government resisted the idea of imposing similar provisions on the ots or cds. in fact some significant progress was later reported by the overseas territories directorate in that several of the ots and cds had already established central registers of beneficial ownership or a similar arrangement, although only montserrat had committed to establish a publicly accessible register.40 in 2017 the sanctions and anti-money laundering bill was introduced in the house of lords. this major piece of legislation was 39 for a review of the operation of the register see global witness ‘in pursuit of hidden owners behind companies’ (2018) <https://www.globalwitness.org/en/blog/pursuit-hidden-owners-behind-ukcompanies/> accessed 19 july 2018. 40 foreign & commonwealth office, overseas territories directorate freedom of information act 2000 request ref: 0896-17: ‘overseas territories and crown dependencies 2017’ 8 february 2018 ttps://assets.publishing.service.gov.uk/government/uploads/system/uploads/attach ment_data/file/679038/foi_0896-17_response.pdf> accessed 20 july 2018. in fact jersey established a central register of current beneficial ownership in 1989 as did bermuda in 1981. the denning law journal 197 designed, amongst other things, to prevent money laundering through the use of scottish limited partnerships and to provide power to impose sanctions on individuals for the purpose of preventing, or in response to, a gross human rights abuse or violation.41 originally it contained no provision relating to the establishment of public beneficial ownership registers in the ots and cds and an amendment to do so was rejected by the government. lord ahmad of wimbledon stated that it was only in exceptional circumstances that the uk would legislate for the ots without their consent and that the government wished “to take action within the existing framework of friendly cooperation, building on progress already made”. 42 he also pointed out that the fatf recommendations did not require such registers but that the ots would comply if these became an internationally required standard. in the house of commons, this point was reiterated by sir alan duncan, the minister for europe and the americas, who made it clear that the uk government “would have preferred to work consensually with the overseas territories to make those registers publicly available, as we have done in agreeing the exchange of notes process”.43 however in the house of commons at the report stage, a group of mps from all three main political parties tabled amendments to the bill requiring the uk government to enforce public registers on the ots and the cds by the end of 2020. without an absolute majority in the house of commons, the government decided to concede the point as regards the ots (but not the cds) to enable the enactment of the bill on schedule.44 sir alan duncan informed the house of commons that the uk government recognised the majority view and would not oppose the amendment, this despite his view that legislating directly would damage the autonomy of the ots.45 the act came into force on may 23 2018. section 51 is headed “public registers of beneficial ownership of companies registered in british overseas territories” and provides as follows: 41 popularly known as the magnitsky amendment. 42 hl deb 6 december 2017, c1117. 43 hc deb (n 37) 21. 44 as andrew mitchell mp noted in the house of commons debate on the bill, the acceptance by the government of the new provision “is evidence that, in a hung parliament, power passes from the cabinet room to the floor of the house of commons”: hc deb (n 37) 41. 45 hc deb (n 43). money laundering, public beneficial ownership registers and the british overseas territories 198 “(1) for the purposes of the detection, investigation or prevention of money laundering, the secretary of state must provide all reasonable assistance to the governments of the british overseas territories to enable each of those governments to establish a publicly accessible register of the beneficial ownership of companies registered in each government’s jurisdiction”.46 such register is to be broadly in line with the uk provisions, noted earlier.47 mindful of the reluctance that some ots might display in establishing such a register, section 51(2) carries a threat in that: “the secretary of state must, no later than 31 december 2020, prepare a draft order in council requiring the government of any british overseas territory that has not introduced a publicly accessible register of the beneficial ownership of companies within its jurisdiction to do so”. not surprisingly, the reaction from some ots was very critical of these provisions with two main concerns being raised. firstly, the fact that a public register would put the ots at an economic disadvantage in relation to other off-shore jurisdictions, such as delaware and panama, which do not have such a register. it was argued that inevitably this would lead to individuals moving their companies elsewhere and thus have a negative impact on the financial and corporate services provided by the ots. this is an understandable concern although it is perhaps unlikely that this will significantly affect those who are using these services for legitimate purposes. of course the only way to resolve this concern conclusively is to establish a level playing field with the global introduction of such registers. this is considered further in the next section. secondly, the threat of an order in council to impose a register of beneficial ownership on the ots undermines the right of the ots to internal self-government. sir alan duncan in the house of commons 46 s49(3) provides that “money laundering” has the meaning given by the proceeds of crime act 2002, s 340(11). 47 s22(7) provides that “a “publicly accessible register of the beneficial ownership of companies” means a register which, in the opinion of the secretary of state, provides information broadly equivalent to that available in accordance with the provisions of part 21a of the companies act 2006”. the denning law journal 199 noted that “her majesty’s government are acutely conscious of the sensitivities in the overseas territories that the new [section] may provoke”. indeed, criticism of the act was soon forthcoming from the ots. for example, in a statement issued on 23 may 2018 the premier of the british virgin islands said: “we are deeply disturbed by the decision in the united kingdom which threatens to impose public registers on the bvi…. the government of the virgin islands is committed to pursuing all available legal channels to ensure that publicly available beneficial ownership registers are introduced in the bvi only if and when they become a global standard, which would establish a level playing field for all…. according to the rule of law and the bvi’s constitution, the fundamental rights of privacy of all persons, including citizens and corporate entities, must be protected and upheld”.48 given the revelations from the panama papers, any efforts by the ots to prevent public disclosure of beneficial ownership suggests that they have something to hide. from a constitutional perspective, the use of orders in council to address uk concerns and requirements in the ots is not uncommon. for example the uk abolished capital punishment as well as discrimination on grounds of sexuality in the ots by way of orders in council. perhaps the most notable example came in 2009 when an order in council was published49 effectively suspending the government of the turks & caicos islands and vesting its powers in the governor. this followed a report by sir robin auld which found that there was “a high probability of systematic corruption in government and the legislature and among public officials” in the islands. this led to the making of the turks and caicos islands constitution order 201150 which increased control of the uk over the islands. in particular section 14 provides: “her majesty reserves to herself power, with the advice and consent of her privy council, to make laws for the peace, order and good government of the turks and caicos islands”.51 48 see ds smith, ‘statement by premier on the royal assent of the sanctions and anti-money laundering bill’ (government of the virgin islands, 23 may 2018) <http://www.bvi.gov.vg/media-centre/statement-premier-royal-assent-sanctionsand-anti-money-laundering-bill> accessed 28 july 2018. 49 the turks & caicos islands constitution (interim amendment) order 2009 placed before parliament on 25 march 2009. 50 si 1681 of 2011. 51 for a detailed discussion of the case see nicholls and others (n 5) paras 11.74 et seq. money laundering, public beneficial ownership registers and the british overseas territories 200 making laws designed to help combat money laundering, tax evasion and the financing of terrorism is clearly a matter of good governance and requiring each ot to establish and maintain a public record of beneficial ownership falls directly into this category. it is also worth repeating the view of the uk government in the ot white paper that “as a matter of constitutional law the uk parliament has unlimited power to legislate for the territories”. during the parliamentary debate on the bill, a clause requiring the introduction of a similar provision for the cds was withdrawn. this was in recognition of the very different constitutional relationship between the uk and the cds, noted earlier. thus the requirement for public registers does not currently extend to the cds. 5 conclusion the ongoing work of the fatf and g20 highlights the fact that developing transparency in the beneficial ownership of companies is now a global issue in the fight against money laundering, tax evasion, terrorist financing and other serious crime. a key goal in this regard is for tax authorities and law enforcement agencies to have “adequate and timely information on the beneficial ownership and control of legal persons”.52 this is facilitated by the effective exchange of beneficial ownership information between jurisdictions. given their position as major offshore financial centres, the ots and cds play a key role especially as each is a separate jurisdiction for the purposes of mutual legal assistance requests. the exchange of notes between the uk and the ots and cds is therefore an important, and seemingly effective, contribution to this goal. the process provides an excellent example for all jurisdictions to follow and one that the fatf and g20 should continue to actively encourage. the introduction in the sanctions and anti-money laundering act 2018 of a requirement for the ots to introduce a public register of beneficial ownership is far more controversial. the need to address the issue is certainly urgent given the fact that, as noted earlier, £90 billion is reportedly laundered through the uk each year with the ots being “central to this nefarious activity”. however, the use of the 2018 act to impose the will of the uk parliament on the ots through an order in council, if necessary, highlights the uncertain constitutional relationship between the uk and ots. clegg notes that the current arrangements, at least so far as the caribbean ots are concerned, were not intended to be 52 fatf recommendation 24: see the discussion in section 2 above. the denning law journal 201 permanent but were originally proposed as stepping stones en route to independence. thus the balance of administrative responsibilities is in practice often ill-defined.53 as he also notes, it is open to any ot to move towards full independence, if so desired. whilst this issue is beyond the scope of this note, it may be pointed out that the ots have benefited greatly economically from their continued association with the uk, especially as compared to those former colonies which chose to become independent states. whatever the future constitutional relationship between the uk and ots, the key point is that a public register of beneficial ownership must become a global standard and this is where the fatf, with its global reach, must take swift action. so far as the cds are concerned, eu directives and regulations relating to financial services, economic and monetary union and taxation do not apply there.54 thus they do not fall within the scope of the eu 5th anti-money laundering directive which was published on 19 june 2018 and entered into force on july 9 2018. amongst other things, the directive (which was partly influenced by the publication of the panama papers) requires all states to allow “any member of the general public” access to beneficial ownership registers to obtain information concerning the beneficial owner’s month and year of birth, country of residence, and nationality, as well as the nature and extent of the beneficial interest held. member states are obliged to transpose the regulations into national law by january 20 2020. in practice the cds have opted to follow many aspects of eu legislation and standards. given the continued importance of the corporate and financial sectors in the cds, complying with the eu anti-money laundering requirements may well become necessary. in the uk context, the ability of tax authorities and law enforcement agencies to obtain access to beneficial ownership information from the ots and cds enhances the prospect of identifying the person “with significant control” of a shell or shelf company. using the land registry records which provide information about the legal ownership of real estate, many of which are companies registered in off-shore jurisdictions, it becomes possible to link the legal ownership of property to the beneficial owner(s). if this is a foreign politically exposed person (pep)55 53 see peter clegg (n 3) 2. 54 home office, review of financial regulation in the crown dependencies (cm 4109-i, 1998) para 5.3.5. 55 the proceeds of crime act 2002, s 362b(7) inserted by the criminal finances act 2017, states that a “politically exposed person means a person who is— money laundering, public beneficial ownership registers and the british overseas territories 202 or one of their family members or close associates, this will allow the uk law enforcement authorities to consider applying for an unexplained wealth order (uwo). such an order requires the pep to explain the legitimate source(s) of their wealth. the adequacy of the response or a refusal to provide such information can then be taken into account in any later civil recovery proceedings.56 given the importance of the contribution of civil society organisations (csos) such as global witness and transparency international in highlighting and campaigning for transparency in beneficial ownership, the passing of the 2018 act is a major success. it also offers them the prospect of enhancing their work, and that of other csos, on identifying the beneficial ownership of property and enhancing further the fallout from the panama papers. (a) an individual who is, or has been, entrusted with prominent public functions by an international organisation or by a state other than the united kingdom or another eea state, (b) a family member of a person within paragraph (a), (c) known to be a close associate of a person within that paragraph, or (d) otherwise connected with a person within that paragraph”. 56 see criminal finances act 2017, ss 1-6. mass torts j. g. fleming'*' mass accidents have become a familiar incident of the modern way of life, a by-product of advancing technology in the production, distribution and use of toxic agents, dangerous pharmaceuticals, fast modern transport and other hazardous activities. a single type of product like asbestos or thalidomide, released on a mass market by one or numerous manufacturers, may inflict injury or disease on a vast multitude of consumers or their offspring. or a single accident, like an aeroplane collision, explosion or escape of poison gas (bhopal), may bring injury or death to thousands and dislocation to a whole region. the first is sometimes called a mass products case, the second a mass accident. both entail injury to multiple victims and present adjudicatory problems very different from those faced in routine accidents. the traditional method of case-by-case adjudication and the applicable principles of substantive law, still largely based on an individualistic philosophy of "corrective justice" between man and man, is rather unequal to this challenge. two english cases two mass product disasters have been conspicuous in english experience: thalidomide in the 1960's, opren twenty-five years later. thalidomide (contergan)\ between 1958 and 1961, the distillers company manufactured and marketed under licence in the united kingdom a drug developed by a small, upstart and aggressive german pharmaceutical firm, chemie-griinenthal. the drug was recommended as a non-barbiturate, atoxic sedative and, among others, was taken *professor of law, university of california at berkeley school of law and arthur goodhart professor in legal science, university of cambridge. the child & co. oxford lecture 1988, printed by kind permission of professor fleming and child & co.. 1. the best account, with special focus on the english scene, is by the summy times insight team, suffer ihe children: the slory of thalidomide (1979). sjostrom and nielsson, thalidomide and ihe power of ihe drug companies (1972) deals also with litigation in other countries, including a summary of the german court's justification for terminating the criminal proceedings against officials of chemie-griinenthal. the latter is fully reported in [1971] j.z. 507. 37 the denning lawjournal by women to counteract the strains of early pregnancy. by 1961 a number of newborn infants were born with no, or deformed, limbs, a condition which was linked to the drug about the same time by two gynaecologists, one in australia, the other in germany. eventually some 450 victims emerged in britain, altogether some 8,000 in thirty different countries. in england between 1962 and 1966 proceedings were commenced by the parents of 70 children, 65 of which were settled in 1968 on the basis that they receive 40% of what would have been recoverable if judgment had gone against the defendants.2 the size of the reduction, far beyond a normal discount or settlement, was due, besides disputed fault in testing, to doubts whether the common law recognised a cause of action for pre-natal injury doubts which, at a later stage of negotiations, were somewhat lessened by a favourable australian decision3 and, later yet, prospectively removed by the congenital disabilities (civil liability) act 1976, one of the few lasting legacies of the thalidomide affair. by 1969 distillers had paid out some £1 million to 58 of the claimants. this left 389 other claims which had been started later but eventually qualified under the limitation act. by 1971 distillers, as an act of grace, offered to set up a trust fund of £3% million (originally £2.5 million), spread over ten years. these terms were scathingly castigated by the sunday times in an attempt to arouse public indignation, but distillers immediately sought an injunction against any discussion pending acceptance of the settlement terms on the ground that it constituted an attempt to interfere with the course of justice.4 this legal manoeuvre, supported by the attorneys-general of two successive governments, succeeded in stifling to the very end all factual information regarding the (inadequate) testing procedure by distillers and their german licensors. it is an episode, far better remembered among lawyers, and certainly journalists, than any other aspect of the thalidomide litigation, because it involved an even more divisiveissue freedom of the press and an eventual censure of the house of lords by the european court of human rights.s at first, even discussion in parliament was resisted by invoking the rule against debate on matters sub judice. the matter finally came up on a motion calling on distillers to face up to their moral responsibility and for immediate legislation to establish a trust fund for the children. as a result of continuous agitation in the press and pressure on and by the government the settlement offer was in the end, i.e. after more than 10 years in the courts, increased to £20 million, estimated to be well above the full tort measure of damages. 2. s. v. dis/if/ers co [1970j 1 w.l.r. 114 (two representative actions to set a standard for assessing damages under the settlement). 3. wall v. rama [19721 v.r. 353. 4. aii.-gm. v. times newspapers [1973] qb. 710; [1974] a.c. 273. the injunction was eventually discharged in 1976, shortly before the last four cases were settled. 5. the sundll;y times v. uk [1979] 2 e.h.r.r. 245. 38 mass torts lessons at least two major lessons emerge from this protracted saga. first, that the ultimate outcome was achieved not through the legal process but through extra-legal means. second, that the outcome was not bottomed on principles of legal liability but on an overriding sense of justice. the dismal failure of the legal process revealed several fundamental flaws in the ability of the english system to cope with effective personal injury litigation, especially of mass claims. it is a frequently voiced boast that the division of the english legal profession into solicitors and barristers tends to assure the most skilful representation of the client. alas, this viewpoint focuses primarily on the choice of barrister and trivialises the role of the solicitor. few solicitor firms, outside trade union solicitors, specialise in personal injury claims and acquire anything like the expertise and stamina necessary for energetic litigation. also, litigation being less remunerative than conveyancing and other non-litigious work creates a temptation for less than a hundred per cent effort and, as hazel genn has shown, for cajoling clients into under-value settlements so as to get paid more quickly than in case of protracted proceedings. the original thalidomide claimants did not give careful consideration to the choice of a solicitor with the special expertise and experience their cases required, and there has been criticism of the way in which he dealt with the matter. this points to two critical failures of the afore-mentioned image of superior client representation. first, the choice of solicitor is a blind man's bluff in the absence of advertising or other facilities for identifying specialists in personal injury litigation. fortunately, the intervening years have seen a great improvement in this regard, so much so that it has brought upon the law society angry complaint from the bma.6 secondly, the critical task of assembling the evidence falls to the solicitor; the barrister may not even establish contact with witnesses prior to the trial and is therefore entirely dependent on, and may be handicapped by, the solicitor's preparation.7 the solicitor's task is aggravated by his inability under english procedure to obtain judicial assistance for discovery of evidence (other than of documents). under american practice wide-scale discovery, including the deposition of adversaries and witnesses, is a routine procedure with the result that all relevent evidence available from all sources is likely to be known to both parties prior to trial. by contrast, the thalidomide defendants successfully employed every legal device to withhold information and forbade the use of information from other sources such as the contemporaneous german proceedings. the illuminating forensic history of the thalidomide affair by the insight team of the sunday times, suffer the children, contains a startling indictment of ineptitude 6. see the times, 18 april 1988, protesting the law society's public call on would-be claimants to contact lead solicitors. a recent publication, the legal soo (1988), addressed to potential solicitor recruits, contains information on firms specialising in personal injury work. 7. defending that rule as ensuring the barrister's primary loyalty to the court, is a letter by mr gray qc in the times, 18 april 1988. 39 the denning lawjournal in the cause of the claimants. nor was it confined to the matters already mentioned. the most egregious was the alleged pressure put on clients to accept the defendant's pusillanimous settlement offer which was conditioned on unanimous acceptance. this included the threat of loss of legal aid an unpropitious model for current proposals to channel legal aid to a "lead team" in mass litigation.8 the most troublesome aspect of this story is that these flaws are systemic and unlikely to be effectively remedied without radical reforms affecting the legal profession and legal procedure. it compares most unfavourably with american legal representation on behalf of tort claimants, conducted by specialised and publicity seeking plaintiffs attorneys driven by the incomparable incentive of the contingent fee. the current proposal, discussed later, for modifying legal aid can only marginally affect this comparison. in summary, then, the eventual successful outcome for the thalidomide victims was achieved, not through but notwithstanding the legal process. it was due to the dedicated pursuit of a handful of doctors, scientists and reporters who ultimately succeeded in arousing public indignation through the media and parliament, and forcing distillers to capitulate to terms of social justice. the second lesson was closely related to the first, viz. that the settlement did not reflect principles of tort law so much as superseding notions of social justice, consonant to the imprecation of the sunday times that "there are times when to insist on the letter of the law is as exposed to criticism as infringement of another's legal rights.,,9 it will be recalled that the original settlement offer was discounted to 40% in part because of evidential uncertainties brought about in large measure by the defendant's own conduct. this blanket of information in particular obscured proof of the defendant's testing procedures and knowledge or suspicion of the drug's teratogenic potential, elements essential for proof of negligence. beyond that lay the problem of a duty of care to the unborn, already alluded to. the only official response to the public indignation over thc thalidomide tragedy (apart from a small grant to the trust fund in order to offset income tax) was the appointment of a royal commission, the pearson commission, to report on the general problem of civil liability and compensationjor personal injury. but though its report in 1979 recommended, inter alia, the introduction of strict liability for harmful products to cover situations like thalidomide, it remained stillborn. when eventually strict liability was introduced, it was under compulsion of an ec directive. moreover, it was the british government which insisted on the optional incorporation of a "development risk" defencelo and further diluted that defence 8. another, 'iorribile die/ii, was an attempt, foiled only by the court of appeal, to make the children of dissenters wards of the court and thus obtain judicial co-operation. see sujjer ihe children, siipra n.l, ch.1 i. 9. 24 september 1972. the writer had in mind that the defendant's last year profits were £64.8 millions and that its assets are worth £421 millions. 10. allowing the defendant to plead that "the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of the defect to be discovered": art. 7(e). the defence has not been adopted by the francophone countries and the netherlands. 40 mass torts in the course of enacting it into the domestic legislation of the consumer protection act 1987.ii thus in the end, twenty-five years of soul searching have brought us little, if any, nearer to matching the law to popular expectations, and bode ill for any replay, heaven forbid, of the thalidomide tragedy. a recurring refrain calls for no-fault compensation for dangerous drugs, such as was put into place in sweden and germany in the aftermath of thalidomide. 12 but why, it has been asked, stop at drugs and not extend the programme to all products; indeed, having regard to need, why differentiate between any causes of injury for accident, or, better still, between incapacity from whatever source? 13 opren once again a licensed drug, developed abroad, for dealing with arthritic disease was withdrawn from the american and british markets amidst accusations that it caused serious side effects, including even death. the american manufacturers denied responsibility, contending that all but 30 among 1,300 british claimants suffered symptoms not attributable to the drug and that these and others were caused by excessive doses being prescribed. attempts by 450 british claimants to have their cases tried in indiana, headquarters of the manufacturer eli lilly, were rejected by an indiana court in 1983 on grounds ofjorum non conveniens. last year eli lilly offered a settlement of £21/4million for the 1,200 odd surviving claimants, which was harshly attacked by their lawyers and the media on grounds both of the defendant's profitability and the "grotesque disparity" in the treatment of american and british claimants, the former being paid "gigantic sums" including a $6 million verdict, while the latter were receiving an everage of only $1,800.14 conspicuous in the opren controversy was the impecuniosity of many claimants, which at one time threatened abandoning their c1aimsl5 until a good fairy in the shape of mr godfrey bradman came to their rescue.16 their plight emphasized the failure of the legal aid system to ensure access to justice for that vast portion of the population who were just above the poverty line but lacked the resources to pursue claims in lengthy litigation with a risk, in case of failure, of having to pay the fees not only of their own lawyers but also the defendant's. indeed, even plaintiffs under legal aid have to face the risk of having to bear a, for them, frightening percentage of legal costs.17 11. section 5(e): " ... was not such that a producer ... might be expected to have discovered". this version is currently being contested by the e.c. commission. 12. see fleming, "drug injury compensation plants", 30 am. j. camp. l.297 (1982). 13. see stapleton, disease and the compmsation debate (1986). 14. times, ii december 1987. is. this was precipitated by a ruling (c.a.) requested by the government, that the legal costs would have to be borne per capita by all claimants, including those not qualifying for legal aid: see law magazille, 12 june 1987. 16. see law magazine, 26 june 1987. 17. say, 10 per cent of an estimated £1.5 million in the whooping cough vaccine litigation. total costs were estimated at £5 million: law magazine, 2 october 1987. successful plaintiffs do not derive any benefit from legal aid because the residue of legal costs (after the costs taxed against the defendant) are retained by legal aid out of the award: see davies v. eli lilly rs co. [1987] 1 w.l.r. 1136, at p.1140 ("legal aid helps those who lose cases, not those who win them": per lord donaldson m.r.). 41 the denning law journal their condition compared, in the view of media commentators, very unfavourably with that of american claimants. the latter had so they said the advantage, first of all, of strict products liability. in reality, the more difficult hurdle was that of causation, from proof of which strict liability would no more exempt claimants than a regime of fault liability. we shall see later how american law has sought to ease that burden. in any event, a more significant advantage enjoyed by american litigants was the availability of the contingent fee, hailed as "the key of the door to the courthouse". under what goodhart has called the "american rule", each litigant bears his own lawyer's fees and there is no fee shifting from victor to loser. moreover, in tort cases, the plaintiff does not even have to pay his own lawyer if he loses, the risk being thus borne by the attorney rather than his client. since individual plaintiffs are generally risk averse, if not altogether unable to pay legal fees, this arrangement removes the fearful consequences of losing their case, and indeed provides a partial explanation for american litigiousness and a greater willingness to pursue marginal causes. there is, of course, a price to be paid: if successful, the plaintifps lawyer becomes entitled to a portion of the award one third to one half in order to remunerate him for his efforts in this and other, unsuccessful cases. thus, in a sense, the successful litigant subsidised the unsuccessful; the lawyer, for his part, is an entrepreneur who can evaluate the odds and spread the risk among a larger number of clients. 18 for several reasons, the most cogent being tradition, the contingent fee has been condemned in england (and many other countries) as champerty, in company with such other un-christian vices as usury and gambling. quite frankly, access to justice has not traditionally ranked as an important social goal in this country. not only is actual litigation deplored and discouraged, but the very pursuit of legal claims is viewed with ambivalence. this has borne down hardest on the low-income classes and accounts for the systemic (even systematic) denial of justice for tortious injuries during the nineteenth century and beyond. in order to correct this historic injustice the times leader writer, among others, therefore advocated the "careful" introduction of contingent fees, especially in cases such as opren: "it was reasonable to ask lawyers to share some of the risks; their advice would be none the worse for it", and "it would be a mistake to regard ['the ambulance chasing' lawyer] as the complete refutation of the principle on which the system is based." 19 some years ago justice, the association of reform-minded lawyers, unsuccessfully argued for a modified version of contingent fees in its submission to the royal commission on legal services.20 a more propitious time was now when the clamour over opren had aroused public concern.21 this was a mass tort with 18. see fleming, the americall tort process (1988), ch.6. 19. times, 16 december 1987. 20. justice. lawyers and the legal system: a critique oj legal services ill ellglalld and wales (1977). see white, "contingent fees: a supplement to legal aid?'" 41 m.l.r. 286 (1978). 21. see my article "how enterprising lawyers could help the less well off', fillancial times, 11 march 1988. 42 mass torts more than a thousand plaintiffs. if, instead of handling each claim as a separate unit, they could be aggregated as in an american class action, and a team of lead counsel could represent the whole class before the court, considerable economies could be achieved and legal aid, funnelled to that team, be afforded for the benefit of all. this was the new proposal of the law society to which in substance the lord chancellor gave his blessing in an amendment to the legal aid bill last february.22 procedural changes on the lines of a class action, he added, could be accomplished without legislation by rules of court. we shall try presently to see what can be learned from american experience in such aggregated proceedings. in any event, it is doubtful if su.::h a reform would have produced a different and more satisfactory resolution of the opren litigation. on 9 december 1987, hirst] took the unusual step of canvassing in open court the terms of a settlement reached by the six leading firms of solicitors representing the main body of plaintiffs and eli lilly's solicitors, with the agreement also of the government defendants, the committee on safety of medicine and the licensing authority.23 after stating that the court was neutral, hirst] urged all plaintiffs in the strongest terms to accede lest the settlement break down, and warned that their legal aid might otherwise be discontinued. you will recall a similar episode when the lead counsel for the thalidomide plaintiffs made the same point in order to corral all into a unanimous settlement. this tactic raised not only serious concern on the early occasion about counsels' conflict of interest but also the larger question whether legal aid does not unduly subordinate the interest of individual litigants to administrative efficiency and what is perceived to be the best interest of the group as a whole. this problem would become endemic under the contemplated modification of legal aid in multi-plaintiff litigation, where all claimants are represented by only one legal team. does such a team owe loyalty to each of its many clients? in the united states critics of class actions, among them many plaintiffs lawyers, raise the same objections, though they are often suspected of concern more for their own fees than their clients' welfare. the american experience class actions in the light of american experience,24 english advocates of class actions may be promising themselves too much. those responsible for the introduction of class actions by the federal rules of civil procedure in the mid-1960's did not contemplate their application to tort litigation at all. their principal reason was that tort claims even in mass accidents were unlikely to satisfy one of the essential conditions for class certification, viz. commonality, because damages vary with each plaintiff and are central to their claim. even more, in mass product disasters causation looms large and offers few, even subsidiary, common issues. to revert to 22. davies v. eli lilly ($ co., n.l.]. law rep., 18 december 1987, p.1l83 . . 24. see in more detail fleming, supra n.18, ch.7. 43 the denning law journal the opren case by way of illustration, even if the drug was capable of causing any of the harmful effects complained of, the question whether it actually caused them in each individual case would depend on numerous individualistic factors varying with each patient, such as that his or her deteriorating vision might have been the result of the synergistic effect of other drugs or of consuming excessive doses or just of ageing, not unnatural with a group of arthritic patients. thus, only a negative answer to the only common issue, viz. was the drug capable of causing any of the injuries, could have disposed of all claims uno iau (in one blow) as indeed it did in the recent whooping cough test action.25 another reason for regarding class action treatment as unsuitable for tort claims is that its primary purpose is to make claims for minor losses, which individually would not be worth pursuing, viable when aggravated by numerous plaintiffs, such for example as systematic overcharging of interest by credit card issuers or discriminatory practices in employment or leasing. class actions for such "non-viable, irrecoverable" claims provide an incentive for private law enforcement of social policies and thus occupy a place along with punitive damages and fee shifting (allowing recovery of legal costs, including attorney fees, from the loser as an exception to the general rule). by contrast, tort claims are usually sufficiently substantial in amount to attract lawyers on a contingent fee and can therefore be left to their own devices. american appellate courts have therefore hitherto given no encouragement to certification of class tort actions, to the chagrin of many trial judges overwhelmed with a flood of claimants and the discordant voices of their lawyers, many of whom have reason to dislike class actions because it will adversely affect their fees unless they participate as lead attorneys. more official support has been forthcoming for class actions under a different qualification, viz. where a common fund is inadequate to satisfy all claims, as where the defendant's assets are liable to be exhausted by successive awards of punitive damages and late-comers are at risk of recovering nothing. notably, it is only in this category that all claimants, willy nilly, can be forced into a class action; in cases of commonality so-called "opting-out" must be tolerated for constitutional and other technical reasons. as a result, almost all the spectacular mass tort trials in the united states have relied on other than class action certification. only in the agent orange case, among the more conspicuous mass tort cases, was the trial judge's certification of a class action upheld on appeal; i will later return to other, far more dramatic innovations engineered by the redoubtable judge weinstein in the course of ultimately putting a painful and controversial settlement to bed. the most common aggregative proceeding is the consolidation of claims, especially by multi-district panels which can assign elaims from federal registries all over the country to a single judge for pre-trial disposition. this includes not only the broad-range discovery possible under american procedure (thereby 25. see /11 re paris aircraft crash of march 3, /974,399 f. supp. 732 (d.c. cal. 1975). 44 mass torts saving a great deal of duplication), but extends also to motions on the pleadings and even of summary judgment on particular issues, such as choice of law. indeed in practice, it almost invariably culminates in a settlement into which the judge cajoles the more or less reluctant attorneys and their clients. a paradigm is the turkish airline litigation before the late judge pierson m. hall, a highly experienced aviation judge.26 thus, just as in england,27 consolidation accompanied by one or more test trials on an issue oflaw or damages and followed by settlement remains the usual mode of disposition of mass tort claims. another procedural device, first attempted by the johns-manville corporation in coping with asbestos c1aims,28 and later followed by the a. h. robbins co., manufacturer of the dalkon shield,29 is to seek shelter under chapter 11 of the bankruptcy act. this permits corporate reorganisation where creditors' claims exceed the resources of the enterprise but it is in the creditors' interest to encourage its continued functioning in order to obtain additional compensation out of future profits. burden of proof one of the most frequent difficulties encountered in mass accident cases relates to proof of causality. it has two aspects. first, there is the problem of the indeterminate defendant. it is often unclear which of several manufacturers of, say, a drug produced the particular unit of the product that harmed the plaintiff. the generic character of the product, the inconspicuousness of the exposure event, and the long latency period frequently prevent precise identification of the responsible manufacturer. secondly, there is the problem of the indeterminate plaintiff. especially in pollution cases, the plaintiff can often rely only on general statistical information to suggest that the defendant's emission merely increased the number of sufferers beyond those who could have contracted the disease in any event from other human agents or perhaps legally non-responsible background risks. does this sufficiently identify the plaintiff as one injured, rather than merely threatened, by the defendant? the traditional requirement that the plaintiff prove causality against each defendant on a balance of probabilities reflects our notions of procedural fairness in the individualized confrontation typical of random accidents. it is argued, however, that this "rule is neither rational nor a just means of resolving the systematic causal indeterminacy presented by mass exposure cases.,,30 27. one of the earliest sensational test actions arose from the thetis submarine disaster in which 99 lives were lost (see dullcall v. cammell laird [1942] a.c.264). recent examples are thompsoll v. smiths ship repairers [1984] qb.450, involving more than 20,000 claimants for loss of hearing in shipbuilding work, and loveday v. we/kome foulldatioll, supra n.25, the whooping cough case. 28. see hensler, felstiner, selvin and ebener, asbestos ill the courts: the challenge of mass toxic torts (rand corp. 1985). 29. see mintz, at ally cost: corporate greed, women alld the da/koll shield (1985). 30. rosenberg, "the causal connection in mass exposure cases: a 'public law' vision of the tort system", 97 han'. l. rev. 849, at p.858 (1984). 45 the denning law journal this postulate calls essentially for modification of conventional substantive law in order to exploit the procedural advantages of class actions in mass tort cases. to what extent has substantive law in america already bent to this challenge? 1. the /ndetenninate deftndant modifications of the conventional rule, which places the burden of proof on the plaintiff to identify which one among a group of potential culprits was responsible for his injury, have actually preceded the advent of class actions. most of these emanated from california, and especially the more radical of them have not, at least not yet, been widely followed elsewhere. while the earlier cases involved random accidents, the problem is destined for a more prominent role in products liability claims involving design defects, as already shown by the des, agent orange and asbestos cases. alternative liability the earliest, so-called "alternative liability", theory originated in the case of summers v. tic? 1 where two hunters, using shotguns, fired simultaneously in the direction of the plaintiff, one shot putting out his eye. the court reversed the conventional burden of proof, holding that where a single injury has been inflicted by one or the other of two negligent defendants, but the plaintiff cannot prove which one, it was for each of them to exculpate himself by establishing on a balance of probabilities that he was not the one. the rationale of this decision was that the equities between an innocent plaintiff and two negligent defendants, each one of whom could have oaused his injury, favour placing the risk of proof uncertainty on the latter.32 it has been questioned whether this principle should be confined to two defendants, in which case the odds on either one's being the culprit are 50:50. contribution could ensure that each bore 50 per cent of the loss, so that the extent of each one's liabilitywould in effect reflect the probability of his having caused the injury. while we are in general reluctant to accept statistical proof of culpability, particularly on the question of identification, those concerns have much less weight in application to defendants whose negligence has once been established. moreover, matching the extent ofliability to the degree of probable causation is an accepted rule for assessing damages for future contingencies.33 thus the chance of future arthritis or epilpesy, even ifless than "more probable than not" (51 per cent?), justifies an award, not for 100 per cent, but for the discounted value of its probability (which may be more or less than 50 per cent). applying the same 31. 33 cal.2d 80, 199 p.2d i (i948);followed by the supreme court of canada in cooky. lewis [1951] s.c.r.830. 32. restatement, torts, sec011d 54338 (1965). this principle has been repeatedly applied in chain collision and water pollution cases. it is also behind cases which shift the burden of proof to a negligent tortfeasor to show for how much of the damage he is not responsible. 33. this is well established in english law: see fleming, the law of torts 7th ed. (1987), at p.206. not so well in american law: see king, "causation, valuation and chance", 90 yale l.j. 1353 (1981). 46 http://www.ingentaconnect.com/content/external-references?article=0044-0094(1981)90l.1353[aid=2967649] mass torts rationale to proof, uncertainty on causation both with respect to the question of whether it would have made a difference had the defendant been careful34 and to the present question of which one of several negligent actors caused the injury is therefore not as great a departure from conventional premises as might have first appeared. on the other hand, the principle would not reach to cases where the alternative cause or causes are of innocent origin as in wilsher v. essex a rea health authority.35 that was the case of a prematurely born infant suffering from various illnesses including oxygen deficiency. while in intensive care he was negligently given excessive oxygen and later discovered to be suffering from damaged retinas, a condition that could have had other causes. the house of lords refused to shift the burden of proof to the defendant on the issue of causation as the lower courts had done, merely because the defendant's negligence had entailed a substantial risk of being responsible. that this decision, though couched in rather conservative terms, does not foreclose a different result when the alternative causes are all of negligent origin could look for support to another pair of cases36 whose compatibility rests on just such a distinction in the context of "superseding causation". whether it will is a question raised in a pending appeal to the lords in a case where the plaintiff suffered tetraplegia after being struck successively by two negligent drivers.37 market share the most innovative theory to date was launched by the california court in sindell v. abbott laboratories.38 having rejected all the preceding precedents, including that of joint enterprise, as unsuitable for application against the more than 300 manufacturers of des because they would have exposed each of them to joint and several liability for every injury caused by a "defective"genetic drug, the court discerned a more equitable solution in limiting each manufacturer's liability merely to its market share. that way, when all claims had been satisfied, no one defendant would have had to pay for more injuries than were statistically attributable to him. a number of objections have been raised against this solution. perhaps the most formidable is that it departs from the prior art not merely by lacking all precedent but by being incompatible with the traditional notion of tort as a system of individual responsibility. this was not corrective but distributive justice. allocation of responsibility was based no longer on proof of particular but of statistical causation. despite the court's disavowal, this was indeed an 34. however, the house of lords have recently declined to do so: wilsher v. essex a.h.a. [19881 2 w.l.r. 557; see also kay v. ayrshire (5arrall h.b. [1987j 2 all e.r. 417 (h.l.). 35. supra n.34. 36. joblillg v. associated dain'es [1982] a.c.794; baker v. willoughby [1970j a.c.467. 37. 26 ca1.3d 588, 607 p.2d 924 (1980). 38. see filzgerald v. lalle [1987] qb.781 (c.a.). 47 the denning law journal industry-wide liability. even if defensible in terms of economic efficiency,39it did not conform to basic notions of individual justice. secondly, the assumption that all would work out at the end of the day was wishful thinking. the court was content with the plaintiffs joining the manufacturers of a "substantial share" of the des market, apparently viewing even 70/80 per cent as too ambitious. moreover, it was left uncertain whether a plaintiff could still collect the whole of his judgment from anyone defendant or was limited to the latter's market share. in the first eventuality, the cost of securing contribution and the risk of insolvency beyond his own share would still be borne by each defendant. how does this really differ from solitary liability except insofar as contribution will be regulated by reference to market share rather than other possible criteria of responsibility? the indeterminate plaintiff in the preceding situations the plaintiff knew that he had suffered injury as a result of another's tort but did not know precisely whose. this, the problem of the indeterminate defendant, has its converse image in situations where the claimant is one of several victims, only some of whom have been injured by a single tortfeasor, but who are unable to say which one among them. to illustrate this, the problem of the indeterminate plaintiff, suppose she is one of a group of persons exposed to a toxic emission from the defendant, but the same symptoms also emanate from independent "background risks". for example, in the nevada nuclear explosion case the plaintiffs could point to a strong positive association between their cancer and exposure to ionizing radiation, but their cancer was indistinguishable from that also prevalent and attributable to unknown causes.40 similarly, in the agent orange case, dioxin was present in the vietnam countryside besides the amount in the defoliant used by the us forces, procured from seven identified american chemical companies.41 typically, the association of the injury with the defendant's activity rests on statistical rather than specific (anecdotal) evidence. thus the evidence may show that, after the defendant's emission, the incidence of the particular disease rose from 100 to 190 for a given population. here, doubts about statistical proof are compounded by the fact that it does not even tip the balance of probabilities, i.e. 50 per cent plus. in the wake of sindell, proposals have been made to apply a mirror-image solution to the instant problem so that the defendant would be held responsible for, and the plaintiffs as a group could recover, 9/19 of their injuries.42 39. see calabresi, "concerning cause and the law of torts", 43 u.'chi.l.rev. 69 (1973), especially at pp.84-91. 40. allen v. u.s. 588 f.supp. 247 (d.utah 1984). the same applies to adverse reactions from many drugs, without any clear distinction between iatrogenic and spontaneous illness: see newdick, "strict liability for defective drugs in the pharmaceutical industry", (1985) 101 l.qr. 405, at pp.420-30. 41. in re "agent orange" product liability litigation 597 f.supp.740 (e.d.n.y. 1984). 42. delgado, "beyond sindell: relaxation of cause-in-fact rules for indeterminate plaintiffs", 70 calif l. rev. 881 (1982). 48 mass torts the proposed formula would exact from the defendant an amount precisely proportioned to his share of responsibility for the total incidence of the disease in the area. besides loss spreading, it would promote deterrence and economic efficiency by internalizing the accident cost to the enterprise that is in the best position to reduce accidents and pass on the cost to its beneficiaries by means of insurance and higher prices. rather less satisfactory is the solution at the plaintiffs' end. proportional recovery, by which each member of thl class is compensated in proportion to the damages sustained by the class as a whole, undercompensates some (90 in the preceding example) and overcompensates others (100). but this is still better, so it is contended, than either to compensate none or to compensate all for the full amount of their injuries. the first to adopt this rationale was the ever innovative judge weinstein, in certifyingagent orange for class action treatment. 43 the departure from traditional concepts, propounded in agent orange, is indeed manifold and startling. on the basis of mere statistical evidence of a product's propensity for injury, it sanctions a cause of action by unidentified plaintiffs against unidentified defendants without specific proof of the defective nature of the product or of its having caused injury to a particular plaintiff. in short, most elements of products liability have been collapsed into mere statistical proof of causation.44 while it is true that, strictly speaking, the court's reasoning related only to the fairness of the settlement, it sought approval for an approach to liability that would sever most links to traditional tort principles. afterthought the prospect of enlisting class actions for the radical solution of social problems envisaged by these proposals enjoys far from universal support. for even if the goals are worthy, to entrust such drastic legal change to a selection of activist judges instead of to the traditional venue for political decision in a democracy challenges accepted constitutional understandings. the distance separating these perspectives is nowhere more strikingly illustrated than by the justification for the agent orange settlement enforced by judge weinstein: "even though the evidence presented to the court to date suggests that the case is without merit, the testimony of almost 500 witnesses undoubtedly did serve once again to bring to the public's attention how unfairly vietnam veterans have been treated. they have been abused, rejected and humiliated after serving bravely. their voices should be heeded by the government and public for whom they fought ... 43. supra n.40. 44. sherman, "agent orange problem and the problem of the indeterminate plaintiw', 52 brook/jill l. rev. 369 (1986), at p.390. . 49 the denning law journal whether or not that pain was caused by agent orange, it is shared by a disproportionately large number of vietnam veterans. they and their families should receive recognition, medical treatment and financial support ... the public received the 'benefit' of combat service and should help to defray the cost ... our country is rich in public and private resources of every kind. those resources should be made available to members of the class.,,45 this statement not only turns its back on any dichotomy between principle and policy in judicial decision making, but invokes a goal of social psychology as justification for wealth re-distribution, far removed from any conventional objective of accident compensation policy, let alone of tort law. one might be tempted to dismiss this scenario as but illustrating the jazzy strain of american jurisprudence, but should be chastened by the memory that the thalidomide settlement also fell well beyond the "shadow of the law", though lacking so indiscreet a spokesman. mass litigation is not the only solution for mass accidents. whether the procedure is individualized or aggregative, the tort system reveals its inefficiencies in starkest colour in dealing with mass claims. the funds available for compensation are limited by the resources of the defendants, including liability insurance cover. that even industrial giants can be driven into bankruptcy has been translated from rhetoric to reality in the wake of the asbestos litigation. the most depressing feature is that the exorbitant cost of administering the tort system not only threatens the survival of industries peculiarly exposed to risk of mass claims, like the pharmaceutical and chemical industries, but depletes the available funds for compensating victims by staggering litigation costs. to the extent that traditional rules are already being modified in order to facilitate recovery by victims, the tort system is being distorted, even superseded. if the conventional tort law is thus proving itself inadequate to the task, should we not, instead of merely tinkering with it, consider the more radical solution of entirely replacing it by a compensation scheme? 45. supra n.39, at pp.857-58. 50 for the purposes of right to self-determination, how does one define people in context of kashmir 333 the denning law journal 2014 vol 26 pp 333-336 book review raising freedom’s banner how peaceful demonstrations have changed the world paul harris sc aristotle lane, oxford, 2015 price £12.00, pp 265, isbn 978-0-9933583-0-2 susan edwards* raising freedom’s banner is essential reading for students studying constitutional and administrative law, for those with an interest in human rights and also for those engaged in peaceful protests the world over. paul harris is a practising barrister in england and wales and a senior counsel in hong kong. he founded the bar human rights committee of england and wales. he has acted in several cases involving the right to peaceful protest, a right preserved by much struggle which he meticulously charts throughout the pages of his truly rich and wonderful historical and legal account. paul harris successfully represented falun gong in upholding their right to protest outside a government building in hong kong as part of a peaceful hunger strike against the treatment of falun gong in mainland china. as any visitor to chinatown in london or indeed elsewhere will know falun gong simply wish to pursue their peaceful beliefs in taoist and buddhist teachings. 1 for paul harris protest is the visible existence of the bastion of freedom. harris embarks on this comprehensive historical and global journey documenting the history and development of protest and the evolution of laws that have both sought to defend, to limit, and to extinguish it. it was magna carta that established the right to peaceful protest, and then embodied in the right to petition the king. 2 the doctrine that the king is not beneath man, but beneath god and the law became a foundation stone cast in eternity throughout the centuries. as harris points out the right to petition became a key issue in the constitutional struggles between the stuart kings and parliament in the seventeenth century, a contest ensuing between whether the right existed or whether petitioning the king could * professor of law, university of buckingham and editor of the denning law journal. 1 2. 2 16. book review 334 amount to treason. 3 harris weaves his journey through time and place considering the role of protest in the process of pressure for democracy in democratic revolutions in france, russia, egypt and the ukraine all of which ended in personal tragedy some bringing about the sought after change and social revolution, whilst others not so. it is impossible to do justice to this book in such a short review and in this “embarrassment of riches” it is not possible to identify which instances of protest have been more important in building our contemporary laws. harris researches the evolution of the law to protect the right to protest and also the attempts of the state to curtail the power of the people both thoroughly and extensively. so for example in 1715, the riot act was passed whereby if more than twelve people were assembled and refused to disperse within one hour they would be hanged, although the riot act was concerned less with protest and more with rebellion. 4 in 1817, the seditious meetings act otherwise known as the “gagging act” was introduced to curtail people’s power prohibiting meetings of more than fifty people and if breached then imprisonment for twelve months followed. 5 clearly the groundswell movement towards protecting the right to protest suffered many setbacks at each stage as parliament tried to contain the power of the people and crush opposition. at st peter’s square, manchester in 1819 some 60,000 people had gathered, including woman contingents as well as children, for a meeting to discuss parliamentary reform. the yeomanry plunged into the crowd to arrest hunt who was about to speak, it then turned into a massacre with the yeomanry trampling the crowds and attacking them with sabres. and so at the “peterloo massacre” eleven people were killed and 400 injured. 6 the power of the people in some circumstances has also led to what is called “civil disobedience” where protestors themselves act outside a law that they regard as, in itself, unlawful. and so from the suffragette movement to gandhi who defied the “whites only” dictate and travelled on a “whites only” train in south africa 7 in his pursuit of “satyagraha”, which translated means “firmness for truth”, harris carefully documents the force of civil disobedience for real social and political change. in this “truth” harris documents the resolve of martin luther king who 3 18. 4 22. 5 36. 6 42. 7 127. the denning law journal 335 “perfected the style of demonstration that came to symbolize the civil rights movement” based on non-violence. 8 but legal measures of all kinds have been historically used against the most peaceful of protestors and harris clearly shows that in so far as the interests of the people are concerned history repeats itself. (for example, the labour leader, jeremy corbyn is concerned with what he calls the “social cleansing” of london where social housing becomes unaffordable and ordinary people are forced to move out of the city). hubbard v pitt 9 concerned the granting of an injunction against social workers who had organised a campaign on behalf of tenants in islington and were protesting against the redevelopment by so called “entrepreneurial” developers bent on a process of “gentrification” which was driving ordinary people out of london. prebble and co applied for, and was granted, an injunction following their claims that the protest was going on outside their premises. lord denning in the court of appeal dissented and did not support the granting of an injunction against the protesting social workers since he did not consider a group of protestors on a saturday morning amounted to an unreasonable use of the highway. denning opined “finally, the real grievance of the plaintiffs is about the placards and leaflets. to restrain these by an interlocutory injunction would be contrary to the principle laid down by the court 85 years ago in bonnard v perryman, 10 and repeatedly applied ever since.” 11 harris is also concerned with the power of the police who over the centuries have acted as buffers between the state and civil society in their role in maintaining public order in peaceful protest. he singles out for special treatment the several decisions of the courts with regard to the use of police powers in the policing of demonstrations. the european court of human rights (echr) in the case of austin and others v. the united kingdom, 12 which effectively authorises the use of “kettling” as a legitimate method of containment of protestors under certain circumstances (in this particular case anti-capitalism demonstrators) is singled out for special comment. harris is critical both of the house of lords judgment in this case and the echr which he regards as guilty of “complacent blindness” 13 adding, “it is tempting to feel that a court of 8 151. 9 [1976] 1 qb 142 (harris 171). 10 [1891] 2 ch 269. 11 ibid hubbard v pitt (harris 178). 12 (application nos. 39692/09, 40713/09 and 41008/09). 13 180. book review 336 human rights which shows so little respect for liberty is scarcely worth keeping.” the victims of police power and state power have as harris demonstrates often been the student body whether it be students demonstrating against university fees or in other countries against state intervention or military intervention. at kent state university 14 an antiwar demonstration against the vietnam war ended in tragedy with four students shot dead and nine others wounded. students at tian an men square suffered at the hands of the government police but their peaceful resistance had a momentum that effected significant change. 15 indeed, as he documents, the peaceful protest can be instrumental in expressing the views of the people outside the ballot box. it was “stop the war coalition” and other groups that protested against the involvement of the uk in the iraq war in 2003. as harris reminds us tessa jowell was going to ban the rally because amongst other things she worried about the threat to the likely damage to the grass. she relented. the late tony benn and the late liberal democratic leader, charles kennedy both spoke out against the war on the basis that it was illegal in the absence of a un resolution. given the strength of support against the iraq war it was thought we would not see the likes of eschewing the parliamentary process again. there have been already been demonstrations against military intervention in syria. as harris demonstrates throughout this book preserving and defining the right to protest is essential for those who feel excluded from the political process and for those who distrust it. the exercise of the right to peaceful protest is the palpable evidence that freedom lives. 14 187. 15 216. human rights, 'arranged' marriages and nullity law: when do 'force', parental 258 denning law journal 2015 vol 27 pp 258-278 the nuremberg trials and their legacy for the rights of patients and research subjects paul weindling  “the nuremberg code” when does clinical research designed to save lives and advance medicine become assault and murder? in the twentieth century the line between legitimate research on human subjects and criminal assault has been variously drawn. the demands of the researcher and the voice of the research subject and patient have received varying recognition. with the upswing of clinical research in the early twentieth century and some dramatic breakthroughs in medicine there was a tendency to heroise the researcher in the “fight” against disease. in nazi germany, there were strong pressures to conduct research on lives deemed worthless in the hope of producing valuable breakthroughs in medical research to benefit the nation and race. after all, if the mentally ill and racially inferior jews and gypsies were going to be killed, their bodies might still serve a useful purpose. after ww2 the nuremberg trials were conducted on the basis of “crimes against humanity”, and by documenting wartime atrocities did much to safeguard human rights and dignity. after the four-power international military tribunal at nuremberg came the trial against 20 nazi doctors and three ss administrators: this concluded with a declaration on the conduct of research based on the autonomy and consent of the research subject. on 18 august 1947 a tribunal of three judges at nuremberg promulgated these guidelines on the conduct of human experiments, and how research subjects could be protected. the judges spoke of the  author paul weindling, ma, phd, ml is welcome trust research professor in the history of medicine, oxford brookes university. his research interests cover the history of eugenics, international health organizations, and the victims of nazi coerced experimentation. he is a trustee of cara, the council for at-risk academics. he was recently awarded the anneliese mayer prize which he holds at the german national academy of sciences, leopoldina in halle, germany, and he is senior fellow of the wiesenthal institute for holocaust studies, vienna, email: pjweindling@brookes.ac.uk. the denning law journal 259 requirement for a “voluntary consent” on the part of the research subject. this declaration was unique among all the nuremberg trials, both the international military tribunal of 1945-46 and the subsequent series of united states-conducted “successor trials” at nuremberg from 1946 to 1951. the doctors‟ trial was the only occasion that a set of principles arising from the judicial proceedings was promulgated. the judges stated that while the principles provided rationales for their verdicts, they also hoped that these principles would establish guidelines for best practice in research. these principles have subsequently been called the “nuremberg code” and have been linked with the emergence of the principle of “informed consent”. these principles represent a significant extension of liberties in that they protect an individual‟s body and personal autonomy. contrary to what is often assumed, the term “informed consent” does not appear in the original statement of principles. the term “nuremberg code” is also retrospective, and applied only in the mid-1960s. 1 certainly ideas of consent have become fundamental for clinical research. indeed, they have been extended to all clinical practice. a further step during the 1990s is to see consent as governing all aspects of human relations. important issues arise: first, how well the medical or doctors‟ trial took on aboard nazi medical abuses, which were ultimately genocidal? what distinction there might be between “voluntary consent” and “informed consent”? here issues arise concerning disclosure of medical information concerning the rationales of the experiment on the one side, and the autonomy of the research subject on the other. the historiography divides into two camps. one sees the nuremberg verdict on the nazi doctors and medical officials as central. the other sees a series of case law verdicts as leading to informed consent. coincidentally both strands consider the post-war period with the rise of clinical research as crucial. 2 1 paul weindling, „consent, care and commemoration: the nuremberg medical trial and its legacies for victims of human experiments‟ in volker roelcke, sascha topp and etienne lepicard (eds), silence, scapegoats, self-reflection: the shadow of nazi medical crimes on medicine and bioethics (v & r academic 2014) 29-46. certain passages in the paper cover similar ground, and that the current piece explores issues within a wider context of human rights history 2 ruth faden, tom l beauchamp and nancy king, a history and theory of informed consent (oup 1986). henry k beecher, research and the individual (little, brown 1970). jay katz, experimentation with human beings (1st edn, russell sage foundation 1972). the nuremberg trials and their legacy 260 the medical trial happened to be the first of a series of trials dealing with different sectors of the nazi system of power. the trial was also distinctive in that victims gave eloquent testimony about what they had endured at the hands of their medical torturers. at times the judges asked for opinions from both defendants and prosecutors for their views on the conduct of medical research. in this sense the trial was also an ethics tribunal. it meant that the trial documentation gained iconic status as an overview of human experimentation and atrocities under national socialism. after the trial, involved lawyers and psychiatrists arranged care and supported efforts to secure compensation. the legacy of the nuremberg medical trial has substantial importance in medicine of the second half of the twentieth century when there was an upswing of clinical research, and an evident need for ethical regulation. the legacy of the doctors‟ trial or more accurately the medical trial – as three nazi officials were prosecuted may be viewed as consisting of the ethical requirement of consent, and the lesser known efforts to provide care, and to commemorate the victims. the question was raised around the time of the nuremberg trials as to those victims who were killed, and how they could be best commemorated? an international scientific commission on war crimes worked parallel to the medical trial to assemble details of all unethical experiments and research by the nazis. 3 the task emerged as too great for the limited resources at the time, and the commission was further marginalised in the post-war medical politics. the focus became that of legally based “informed consent”. however, the history is wider ranging and more complex. it is often overlooked how several of the nuremberg trials considered evidence for medical atrocities. human experiments and coerced research were already raised at the four-power international military tribunal. they were given a high profile as part of a general pattern of nazi atrocities. during the following period of united states administration, the trials of air marshall milch and the ss economic administrator oswald pohl also considered the coerced and often fatal experiments. other trials 3 paul weindling, „die internationale wissenschaftskommission zur erforschung medizinischer kriegsverbrechen‟, angelika ebbinghaus and klaus dörner (eds), vernichten und heilen. der nürnberger ärzteprozess und seine folgen (aufbauverlag, 2001), 439-451. paul weindling, nazi medicine and the nuremberg trials: from medical war crimes to informed consent (basingstoke, palgrave-macmillan: 2004). the denning law journal 261 at nuremberg dealt with atrocities perpetrated by specific groups (as the judiciary, high command and industrialists). 4 the fact that victims did not volunteer or consent to the experiments was part of the prosecution case in the successor trials. the issue was raised in the trial against 23 officials of the ig farben chemical corporation, when the extensive typhus (fleckfieber) experiments at buchenwald were part of the prosecution case as count three concerning war crimes. the defence countered that conscientious tests with animals were carried out to ensure the safety of the drugs. 5 moreover, the defence alleged that the criteria for criminality of experiments established at the medical trial were not met. the defence argued, using evidence from the dachau camp doctor, helmuth vetter (a former scientist with ig-farben at leverkusen and who later oversaw experiments at the concentration camps of auschwitz and mauthausen-gusen), that rather than (criminal) experiments, there had been allegedly legitimate “clinical tests” or “practical tests.” 6 “medical experiments” figured as part of count three (slave labour) in the charges against the defendants. here the charge was of: “experiments on human beings (including concentration camp inmates), without their consent, were conducted by farben to determine the effects of deadly gases, vaccines, and related products.” 7 himmler had ambitions for the ss to become a major producer of pharmaceuticals, surpassing ig-farben. he authorised large-scale infectious disease experiments in concentration camps as a way of realizing these schemes. typhus, transmitted by infected lice, was denounced as a “jewish fever” that had to be conquered as it was endemic in eastern poland and the soviet union. the ss medical researchers effectively stole an innovative vaccine devised at the pasteur institute in paris and produced from typhus rickettsia cultured on rabbit lungs. at the concentration camp of buchenwald ss medical researchers infected prisoners, using some prisoners (who mostly died) as “passage-persons” to maintain cultures of the vaccine, and others as test subjects for the new vaccine. 8 4 paul weindling, „victims, witnesses and the ethical legacy of the nuremberg medical trial‟ in kim priemel and alexa stiller (eds), the nuremberg trials (berghahn books 2013) 74-103. 5 trials of war criminals before the nuremberg military tribunals under control council law no. 10 (washington: us government printing office 1949) [hereafter twc] ig farben case, vii 250. 6 ibid 253, 328. 7 ibid vii, 54, 55 (indictment). 8 paul weindling, epidemics and genocide in eastern europe (oup 2000). the nuremberg trials and their legacy 262 the defence at the ig-farben trial took the position of a collective denial of responsibility and knowledge of the criminal experiments at auschwitz. 9 the accused pleaded that they were conscientious professionals. the judges accepted the distinction between an experiment (versuch) and a clinical test or trial: “without going into detail to justify a negative factual conclusion, we may say that the evidence falls short of establishing the guilt of said defendants on this issue beyond a reasonable doubt…the question as to whether the reports submitted to farben by its testing physicians disclosed that illegal uses were being made of such drugs revolves around a controversy as to the proper translation of the german word “versuch” found in such reports and in the documents pertaining thereto. the prosecution says that “versuch” means “experiment” and that the use of this word in said reports was notice to the defendants that testing physicians were indulging in unlawful practices with such drugs. the defendants contend, however, that “versuch”, as used in the context, mean “test” and that the testing of new drugs on sick persons under the reasonable precautions that farben exercised was not only permissible but proper. applying the rule that where from credible evidence two reasonable inferences may be drawn, one of guilt and the other of innocence, the latter must prevail, we must conclude that the prosecution has failed to establish that part of the charge here under consideration.” 10 this verdict of the judges at the ig farben trial that “tests” were permissible effectively reversed the verdict and guidelines pronounced by the judges at the close of the medical trial. the distinction between a therapeutic “test” and an experiment relied on some skilful conjuring with terminology by the defendants and defence lawyers. here, it can be seen that the nuremberg trials left an ambivalent and contradictory legacy, on the one hand with guidelines to protect research subjects, and on the other hand permissive allowing constant clinical testing. the nuremberg medical trial of 1946–47 was necessarily selective as to who was available for prosecution, and since then only clusters of victims have been identified. in the early 1980s günther schwarberg, a journalist for the illustrated magazine stern, named a set of child victims for his reconstruction of the life histories of the “twenty children” killed in 9 case vi, closing statement for all defendants, twc (n 5), viii 972. 10 ibid viii 1172, case vi (decision and judgment). the denning law journal 263 hamburg after transport from auschwitz for a tuberculosis immunisation experiment. the question arises whether what schwarberg achieved in microcosm can be achieved for the totality of victims? victims of experiments have only recently been systematically researched, and the evidence is that there were at least 15500 victims of the coerced research. 11 there is a strange irony regarding the ethical and legal protection of victims of medical atrocities. this is that the principles of informed consent and protection of personal data lead to the withholding of victim-related data. a sort of “catch 22” situation arises: that the information about victims cannot be released without their consent, but you will never know who the victim may have been unless this is released. such a situation prevents the reconstructing of victims‟ life histories – something that provides a long overdue historical basis for compensation and recognises victims and survivors. the effect is not to protect the victims but to protect the identities of the perpetrators of medical atrocities. moreover, the idea of a “nuremberg code” with “informed consent” as a key feature can be seen as retrospective constructs dating from the 1960s. from about this time, the first efforts to identify victims arose, but this was (and remains) a highly marginalised activity, outside the historical mainstream. the medical trial was in chief prosecutor telford taylor‟s words “no mere murder trial”, by which he meant that human experiments were more complex in terms of their intention and organisation than straightforward acts of violence. in fact, the prosecutors delegated to the medical case construed medical atrocities as acts of violence and murder, but ethical issues were periodically discussed in court. the resulting judicial guidelines on human experiments provided research subjects with safeguards, both at an individual and collective level. how public was the judicial declaration on human experiments? the nuremberg trials were conducted under military security. yet throughout journalists, the german delegation of medical observers, other medical observers and national delegates were present. in 1949 the neurologist alexander mitscherlich who led the german medical chambers included the judicial guidelines as a contribution for a future international agreement. 12 although 10000 copies of his analysis of the medical trial, 11 paul weindling, victims and survivors of nazi human experiments: science and suffering in the holocaust (bloomsbury 2014); paul weindling and others, „the victims of unethical human experiments and coerced research under national socialism‟, endeavour (2015). 12 alexander mitscherlich and fred mielke, wissenschaft ohne menschlichkeit (lambert schneider 1949) 267-68. cf alexander mitscherlich, fred mielke (eds), the nuremberg trials and their legacy 264 wissenschaft ohne menschlichkeit (science without humanity) were printed, it is likely that the circulation was in fact limited through the antagonism of senior clinicians. the reissued edition in april 1960 did include the judicial guidelines, and the book has shaped all subsequent analyses of the medical trial, at least in germany. the ethical discourse was by no means restricted to the courtroom. victims had established an ethical agenda prior to the medical trial. there was an explosion of human rights declarations around 1946-48, as the un general assembly convention on the crime and punishment of genocide of 9 december 1948 and the un declaration on human rights of 10 december 1948. the un declared genocide as a crime under international law: “genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group.” 13 here, the judicial declaration should be considered in the context of a wider human rights discourse. figures like the campaigner for the recognition of genocide as an international crime, raphael lemkin saw how minorities – whether ethnic, religious or cultural were inherently in peril and vulnerable to persecution and wholesale extinction. lemkin escaped the nazis when poland was invaded, and invented the term “genocide” in 1944. the issue of genocide was significant in shaping issues for prosecution at the nuremberg medical trial. the medical das diktat der menschenverachtung (lambert schneider 1947). mitscherlich, mielke, medizin ohne menschlichkeit, dokumente des nürnberger ärzteprozesses (s fischer 1960). mitscherlich, mielke (with contributions by ivy, taylor, alexander and deutsch), doctors of infamy: the story of the nazi medical crimes (henry schuman 1949). 13 united nations treaty series, art ii, vol 78 (1951) 277. the denning law journal 265 intelligence officer, john thompson, provided a link between the nuremberg medical trial and international organisations like unesco. 14 towards a code the term “nuremberg code” was not used until the 1960s. the idea of consent was qualified in a variety of ways, for example as “enlightened” or “voluntary”. once one scrutinises its origins, status and meaning, the nuremberg code and the associated idea of “informed consent” are retrospective constructs of a more recent bioethical discourse – when there was a “codification of the code” from the 1980s. the origins of “informed consent” lie in prisoner protests against maltreatment. during the war, victims protested that coerced experiments violated their rights as prisoners. on 4 march 1945 liberated auschwitz prisoner doctors made an international declaration on how prisoners had been treated as experimental animals; they hoped that the allies and neutral states would bring to trial those responsible. their intention was that bringing the perpetrators to justice would mean that such atrocities should not recur in the future. survivors and witnesses of human experiments called for documentation of nazi medical atrocities, justice and compensation. the released prisoners organised committees and issued newsletters about the experiments. by asking when the issue of unethical experiments was first raised, and by whom and in what circumstances, we find that the research subject, and medical understanding of the victim is at the core of the story. this contact with victims was lost, when what later became known as the nuremberg code has achieved recognition. the allied medical intelligence officer, john thompson, who drove forward an ethical agenda to tackle “medical war crimes”, illustrates this loss of perspective. crucial was the encounter with victims, in his case survivors at bergen-belsen. thompson‟s position was to combine martin buber‟s idea of a communing relationship of physician and patient with a spiritually based philosophy of the whole person. in late november 1945 thompson flagged up the issue of nazi human experiments by introducing the concept of a “medical war crime”. thompson defined what scientific practices were criminal, and began documenting where and when the criminality occurred. he alleged that 90% of the work of leading german clinicians and researchers was criminal. in november 1945 he 14 paul weindling, john w thompson, psychiatrist in the shadow of the holocaust, (rochester university press 2010). paul weindling, „zwischen forschung und genozid, „der nürnberger ärzteprozess 1946/47: raphael lemkins standpunkt über menschenversuche und genozid‟ (2007) 48 acta historica leopoldina 79-87. the nuremberg trials and their legacy 266 was the first to identify the human experiments as “medical war crimes” – this new term provided a basis for joint medical and legal investigations. thompson alleged that “the sacrifice of humans as experimental subjects” was widespread in germany. he demanded comprehensive documentation and ethical analysis. he was convinced that inaction would condone the experiments, and that “there is equally a danger that these practices may continue in germany or spread to other countries.” 15 thompson secured an inter-allied meeting of war crimes investigators. he established the international scientific commission at nuremberg to document and ethically analyse all unethical medical experiments, not just those which took place in concentration camps, as it became allied policy to prosecute only the latter. thompson provides a corrective to a standard bioethical approach of seeing a progressive development of codes from the generalised hippocratic oath to the helsinki declaration by the world medical association of 1964 when “informed consent” was key: “9. in any research on human beings, each potential subject must be adequately informed of the aims, methods, anticipated benefits and potential hazards of the study and the discomfort it may entail. he or she should be informed that he or she is at liberty to abstain from participation in the study and that he or she is free to withdraw visor her consent to participation at any time.” this approach moves from the hippocratic oath, to the reich regulations on the conduct of research with humans of 1931, to the nuremberg code, and then on to helsinki declaration. thompson‟s response to the concerns at the nuremberg trials was to put the suffering person first: he combined buber‟s idea of a communing relationship with the roman catholic philosopher jacques maritain, person-based philosophy. by way of contrast, other medical experts at the nuremberg, the american physiologist andrew ivy and neurologist leo alexander looked back to hippocrates. we know from the work of thomas rütten that hippocrates was an ambivalent basis. 16 ivy‟s “outline of principles and rules of experimentation on human subjects”, presented at a meeting at the pasteur institute on 1 august 1946, importantly began with the demand: 15 ibid. 16 thomas rütten, „hitler withor withouthippocrates? the hippocratic oath during the third reich‟ (1997) 12 korot 91-106. the denning law journal 267 “i. consent of the subject is required; i.e. only volunteers should be used. (a)the volunteers before giving their consent, should be told of the hazards, if any.” ivy‟s agenda of a set of guiding principles was intended as a modern form of hippocratic oath, and his public speaking frequently mentioned the oath. at the same time, his outlook was permissive in terms of research, even though he recognised ethical limitations. the issues of animal and human rights converged. ivy was at root a mechanistic physiologist, relying on animal experiments. again, there is a contrast to thompson, who advocated that students should learn from their own bodies rather than animal experiments. the ethos of ivy‟s viewpoint was geared to the take-off of clinical research and trials. two implications were: “voluntary or informed consent provided a safeguard within a model of science that was reductionist. the relationship was contractual between researcher and subject, or by extension physician and patient.” ivy briefed the legal staff of general taylor on the ethics of experimenting on prisoners. the public should not lose confidence in “ethical experimentation.” ivy‟s route was essentially a bargain struck between researcher and subject, and by extension between physician and patient. taking a philosophical view, the corresponding epistemology in the analysis of experimentation was empirical and associationist, and mechanistic in its presuppositions. the german medical observer at the medical trial, the neurologist, alexander mitscherlich reflected on what was the human component in doctor-patient relations? mitscherlich declared that it would be a mistake for physicians to distance themselves from the trial, by seeing the accused in terms of an individual lapse of moral standards. in fact, every doctor needs to recognise what happens when the individual suffering human being becomes an object or a case – “einen fall”. 17 this position represented a quite fundamental critique of mechanistic reductionism as the epistemological basis of medicine. survivors of experiments were key prosecution witnesses at the nuremberg medical trial. they included four of the ravensbrück “rabbits” (these were 74 polish women experimental subjects who were originally 17 alexander mitscherlich, „der arzt und die humanität: erste bemerkungen zum nürnberger ärzteprozeß‟ die neue zeitung 20 december 1946. the nuremberg trials and their legacy 268 called “rabbits” by fellow prisoners and used the name to express defiance, solidarity and contempt for their tormentors). as the literary critic george steiner has observed, the nazis used euphemisms like “disinfection” to disguise their murderous conduct. the “rabbits” used their name as a very direct protest against what they considered the injustice of being condemned for resistance, but then gratuitously abused for experiments. another victim giving evidence concerning his experiences of malaria experiments and then of survival in freezing water experiments at dachau was a roman catholic priest, leo michalowski, also from poland. 18 the nuremberg prosecutors had appealed in the press and on the radio for victims‟ testimony. the survivors‟ voice was heard strongly. the resulting evidence brought out links to “euthanasia” and genocide. in one dramatic courtroom incident, the roma victim of a dachau seawater drinking experiment, karl hoellenrainer, punched the experimenter the austrian internist, wilhelm beiglböck. this was an exceptional confrontation in its directness, but is indicative of the stress of the courtroom encounter. those survivors who gave evidence were representative not only of the groups experimented on – as sulphonamide treatment of wounds, or seawater drinking, but even more broadly of victims as a whole. 19 their role raises a crucial issue of how many victims there were and how widespread the experiments. “enlightened consent” the neurologist leo alexander realised that the legal basis of the medical trial – the prosecution of war crimes as crimes against humanity was too narrow. he tried to broaden the basis of the trial by applying the genocide concept. alexander argued that the german research represented “killing methods for a criminal state”, and as “an aggressive weapon of war”. 20 as in ivy‟s draft code of 31 july 1946, alexander required consent, and voluntary participation of the experimental subject. while ivy required the experiment to be useful, alexander preferred a more generalised 18 harvard law library, „nuremberg trial project‟ (harvard law school library_<http://nuremberg.law.harvard.edu/php/pflip.php?caseid=hlsl_nmt0 1&docnum=2585&numpages=3&startpage=1&title=exhibit.&color_setting=c> accessed 14 october 2015. 19 weindling, „victims, witnesses and the ethical legacy of the nuremberg medical trial‟ (n 4 ) 74-103. 20 alexander papers, durham nc 4/34 memorandum to taylor, mchaney and hardy, „the fundamental purpose and meaning of the experiments in human beings of which the accused in military tribunal no 1, case no 1) have been indicted: thanatology as a scientific technique of genocide‟. the denning law journal 269 viewpoint, that the experiment should not be unnecessary; both agreed that results should be for the good of society. alexander amplified the concept of consent, as based on proven understanding of the exact nature and consequences of the experiment. he considered that a doctor or medical student was most likely to have the capacity for full understanding. the degree of risk was justified by the importance of the experiment, and the readiness of the experimenter to risk his own life. 21 alexander as a neurologist had a greater psychological understanding than ivy, when he defined what constituted “enlightened consent”. his criteria were “legally valid voluntary consent of the experimental subject” requiring: a. the absence of duress. b. sufficient disclosure on the part of the experimenter and sufficient understanding of the exact nature and consequences of the experiment for which he volunteers, to permit an enlightened consent on the part of the experimental subject. the idea of an enlightened consent gave the subject greater agency than being merely a recipient of passive information. his outline of principles went on to state: “2. experiments should be humanitarian with the ultimate aim to cure, treat or prevent illness, and not concerned with killing or sterilization. 3. no experiment is permissible when there is the probability that death or disabling injury of the experimental subject will occur. 4. a high degree of skill and care of the experimenting physician is required. 5. the degree of risk taken should never exceed that determined by the humanitarian importance of the problem. ethically permissible to perform experiments involving significant risks only if not accessible by other means and if he is willing to risk his own life. 6. …the experiment must be such as to yield results for the good of society and not be random and unnecessary in nature.” 21 leo alexander, „ethics of human experimentation‟ (1976) 1 psychiatric journal of the university of ottawa 40. the nuremberg trials and their legacy 270 finally, to protect the research subject, alexander included special provisions to protect mentally ill patients, requiring where possible the consent of the patient in addition to the next of kin or guardian. this provision was not included in the eventual code. the judges adopted ivy‟s notion of voluntary consent, which was less comprehensive than alexander‟s enlightened consent. they shifted the focus away from the physician to the research subject. what was novel was the right to withdraw from the experiment. ivy had required far less when he called for informing the subject of potential hazards. the view that the code “grew out of the trial itself” omits the formative preliminary period, and the crucial inter-allied discussions. 22 while the code was not applied in sentencing, the judges followed ivy in intending that it should prevent future abuses. alexander and ivy cited the hippocratic notion of the doctor‟s duty of care for a patient. hippocratic ideas were opaque given the problems of translation and interpreting the semi-mythical hippocrates. they became subsumed in the political ideology of totalitarianism, in shifting responsibility to an abusive state. medical opposition to interference in the doctor-patient relationship meant that – in ivy‟s words “we must oppose any political theory which would regiment the profession under a totalitarian authority or insidiously strangle its independence.” 23 ivy found support in the medical press. an editorial in the british medical journal diagnosed the problem as political: “the surrender, in fact, of the individual conscience to the mass mind of the totalitarian state.” 24 morris fishbein, the editor of the journal of the american medical association (jama) linked the evidence on compulsory sickness insurance to the deterioration of the ethics of the german medical profession. 25 physicians turned the abuses of nazi medicine into a rallying cry against the socialisation of medical services. the autonomy of science reflected a situation of doctors (notably through the british medical association) opposing central state planning and the welfare state. the scales of justice were heavily tilted by the weight of cold war requirements for strategically 22 evelyne shuster, „fifty years later: the significance of the nuremberg code‟ (1997) the new england journal of medicine 1436; evelyne shuster, „the nuremberg code: hippocratic ethics and human rights‟ (1998) 351 lancet 974. 23 ac ivy, „nazi war crimes of a medical nature‟ (1948) 139 the journal of the american medical association 131. 24 „doctors on trial‟ (1947) 1 british medical journal 143. 25 washington university (seattle) beals papers, box 1 folder 16 fishbein to beals, 20 may 1947. the denning law journal 271 relevant clinical research, and by professional defence of the status of the individual practitioner. in june 1947 the british medical association issued a statement on war crimes and medicine, diagnosing that the corruption of medicine arose from its becoming “an instrument in the hands of the state to be applied in any way desired by its rulers.” the view conveniently absolved physicians from primary guilt. 26 the world medical association has remained the main international body setting international standards on human experimentation: it was first at this association that voluntary and enlightened consent became “informed consent”. the nuremberg code thus arose from the concerns of allied medical war crimes investigators as they encountered the survivors of the human experiments and gathered the records of medical atrocities in concentration camps and clinics. thompson took a crucial initiative in convening an international committee of forensic pathologists and other medical and legal investigators. his international scientific commission offered an alternative tribunal to a public trial that of expert evaluation conducted in closed session. the debates on research provided the initial stimulus for the formulation of a code of experimental ethics. the judges reverted to ivy‟s notion of “voluntary consent”, while they recognised the autonomy rights of the experimental subject in having the freedom to leave the experiment at any time. the judicial promulgation of the guidelines left the status of these guidelines unresolved. although promulgated to a military tribunal, the proceedings were conducted under a glare of publicity with press, and medical, legal and governmental observers. it meant that the guidelines were effectively published. subsequent accounts of the trial, the us abbreviated edition and the digest by the medical observer alexander mitscherlich, included these. ivy warned how the evils of bureaucratised and unethical nazi science could recur. the lesson ivy drew from nuremberg was that it was necessary to sustain clinical freedom for the medical researcher. the cancer drug krebiozen offered the hope for a non-toxic therapy. unfortunately, the drug was bogus, and ivy was discredited. ivy has been further discredited in that historian jon hearkness argues that ivy committed perjury at nuremberg. in contrast to the uk, experiments on prisoners were established practice in us penitentiaries. ivy maintained that statesville, illinois penitentiary experiments had the approval of an ethical committee. although this committee had been 26 „war crimes and medicine‟, statement by the council of the association for submission to the world medical association, (bma 1947). the nuremberg trials and their legacy 272 appointed, it had not met, a mitigating factor is that ivy did correspond with committee members on an individual basis. one might also see ivy as taking in effect “chairman‟s action”. so while technically giving a misleading impression regarding the committee, there were some exonerating circumstances. 27 ivy has also been – unfairly – lambasted as incompetent in his evidence at nuremberg. while infectious diseases were not a special area of his expertise, ivy did well regarding digestive physiology regarding the seawater drinking experiments. he had conducted a self-experiment, and was tolerant when research subjects absconded. he astutely noticed that the accused medical researcher beiglböck altered evidence in his prison cell. ivy is a tragic figure, and although not beyond criticism does merit a degree of rehabilitation, as not unethical in his experiments, and as essentially well motivated. ivy‟s engagement with krebiozen shows something more positive than just scientific naivety: as motivated by support for a non-toxic cancer cure. so while he allowed scientific standards to lapse, the motive was patient welfare. here we see a common pattern with medical scientists involved at nuremberg. alexander moved from neurology to psychiatry, more concerned with care for the whole person. thompson similarly moved from neuro-physiology to education (initiating the unesco programme for germany), and then also to psychiatry. for, the contact with victims remained a determining experience. those driving forward the ethical agenda cared for victims. alexander supported the efforts to look after the polish “rabbits” indicate this, with the efforts of others in the usa to organise care and therapy. legacies the victims‟ perspective opens the way to more fully historicised concepts and procedures in the understanding of the patient both historically and in modern clinical contexts. informed consent as the cardinal principle of physician-patient relations is a very recent innovation, and linked to the “birth of bioethics” since the early 1970s when dedicated institutes – the kennedy institute and hastings centers were founded in the united states. 28 bioethics chimed with more critical and sceptical views of science as part of the counter-culture of protest since the 1960s. 27 jon m harkness, „nuremberg and the issue of wartime experiments on us prisoners: the green committee‟ (1996) 276 jama1672. 28 albert jonsen, birth of bioethics (oup 1998). the denning law journal 273 bioethicists – as an emerging lay professional group wanted a code as part of a sense of the need to regulate innovations. a code also served to legitimate bioethicists‟ nascent endeavours. thus the nuremberg principles became referred to as the “nuremberg code” during the early 1960s. many of the nuremberg trials dealt with aspects of unethical medical research. in formulating a set of principles, the american judges had two aims: first to make clear the principles supporting their judgment. second, at the prompting of ivy who was expert witness to the court – to issue a series of guidelines that might prevent such abuses occurring in the future. ivy had two objectives: first, that there should not be a massive public surge of outrage against all clinical research. in this sense the judicial principles that he recommended were permissive – it was the lay judges who empowered the research subject by inserting that the subject could terminate the experiment at any time. second, that public opposition to vivisection should be defeated by showing that human research was by far the greater cruelty. there is a thin thread of evidence linking the helsinki declaration of 1964 to what has been called – retrospectively the nuremberg code, the judicial pronouncement of 19 august 1947. on the other, and here philosophical commentaries are enlightening – consent goes back to the contract tradition in philosophy. this has echoes of commercial contracts, as well as of the regulation of political power between subject and ruler. 29 to their credit, the first major collection on the nuremberg code was edited by the boston university bioethicists george annas and michael grodin in 1992. despite their important efforts, the history of informed consent remains problematic as de-historicised and restricted to a series of legal verdicts. it involves less the democratising of clinical knowledge but the notion of being informed. here the subject takes a passive role, with the expert being actively in authority, as instructing about risks etc. the term “nuremberg code” is retrospective construct: it appears to have first been used from 1963. on the one side, the american bioethicist, jay katz argued that although the nuremberg code was an important symbolic statement, it had no major role, as case law was decisive. 30 his view contrasts to that of annas and grodin that “all contemporary debate on human 29 neil c manson and onora o‟neill, rethinking informed consent in bioethics (cup 2007) 30 jay katz, experimentation with human beings: the authority of the investigator, subject, professions, and state in the human experimentation process (russell sage foundation 1972). the nuremberg trials and their legacy 274 experimentation is grounded in nuremberg”. they commend – rightly in my view – the remarkable “focus on universal ethical codes in the context of a trial.” but their view is ironically as fixated on courtroom procedure as katz. the harvard anaesthetist henry beecher, a noted critical voice against unbridled experimentalism, in 1966 cautioned against excessive experimentation, and characterised the nuremberg code as “legalistic”, whereas helsinki more wholly ethical in spirit. 31 american bioethicists have been content to work through a legal framework, and since 1973 references have been made to nazi doctors in us court rulings. 32 the legacies have conventionally been considered at a medical level – at that of the world medical association, and the transition to the helsinki declaration‟s principles on human experimentation. what this shows is that the judicial principles were ignored, then the effort was made to introduce a hippocratic style “code of geneva”, and finally informed consent came to operate. while both paths are significant, it seems to me that two elements are missing: the commemoration, and care of victims of the experiments. the twenty children were commemorated anonymously, not least on a memorial plaque dating from 1967. the journalist günther schwarberg first found photographs in 1977, and a list of names in 1978. (two were incorrect; one identified by the mother in 1982, and another by his sister in 2015). it meant that relatives could be finally informed as to their children‟s fate. a memorial dates from 1980, and rose garden from 1982. in 1994 two dutch victims were commemorated by a memorial stone in eindhoven. this commemorates the children by name. in 1995 on the 50 th anniversary streets were named in the hamburg district of burgwedel after the children. 33 in 1985 the radical historian götz aly called for the destruction of body parts from anatomical collections. until this time, institutions felt aggrieved when accusations were levelled against them, and aly was primarily concerned to show the networks of perpetrators. the distinguished biochemist otto butenandt declared this an insult to the dignity of the max planck society, the prestigious research organisation directed by him. then things suddenly changed in 1989. this culminated in a conference of german university ministers and rectors in 1989. in december 1990 histological specimens and brains of 33 children and 31 george annas, michael a grodin (eds), the nazi doctors and the nuremberg code (oxford: oup 1992) 205. 32 ibid 206-8. 33 günther schwarberg (tr), the murders at bullenhuser damm: the ss doctor and the children (indiana up 1984); schwarberg, meine zwanzig kinder (steidl 1996). the denning law journal 275 youths killed in 1940 at brandenburg-görden and held by the max planck institute for brain research in frankfurt were buried. but representatives of german academic institutions were present, rather than relatives or other nazi victims. 34 removal of body parts was done rapidly in the federal republic from 1989, virtually as (to use a national socialist phrase) a nacht und nebel (“night and fog”) action in that the “contaminating” specimens disappeared without documentation. the idea was not to document and to establish provenance. there is consequently no listing of institutes which held body parts deriving from nazi persecution and genocide. in austria, the process took longer but has been more thoughtful, as individual urns at the zentralfriedhof vienna received the parts of victims in 2002. memorials for victims of research atrocities are few, and only exceptionally commemorate victims with the dignity of their full name. the strasbourg gravestone for the victims of the jewish anatomical collection is stark and dignified, yet necessarily anonymous. the identities of the victims are now known, and we can understand how auschwitz was a selection centre for victims across europe. the most personally and engaged is for the twenty children selected in auschwitz, experimented on with a tuberculosis preparation at neuengamme concentration camp, and brutally killed in the cellar at bullenhusen damm on 20 april 1945. here the lives of the children have been reconstructed with a caring dignity. in heidelberg, carl schneider‟s victims are commemorated, but the memorial depersonalises. known victims have been de-identified. 35 history offers an important form of public accountability for medical malpractice. the historian can assess whether practitioners and researchers have shown due care for persons in their care. unless one names, we cannot identify, understand the extent of the atrocity and the suffering. for without a name, we cannot understand the networks of institutions, how a person was transferred from camp to camp, and clinic to clinic. there has been a lack of compensation for victims. the un human rights division passed on 4 july 1950 a resolution on the plight of victims of the so-called scientific experiments. the federal german 34 „trauerfeier für präparate von ns-opfern‟, frankfurter allgemeine zeitung (19 december 1990). 35 paul weindling, „from scientific object to commemorated victim: the children of the spiegelgrund‟ (2013) 35 history and philosophy of life sciences 415; christoph mundt, gerrit hohendorf und maika rotzell (eds), psychiatrische forschung und ns euthanasie: beiträge zu einer gedenkveranstaltung an der psychiatrischen universitätsklinik heidelberg (heidelberg 2001). the nuremberg trials and their legacy 276 ministry of finance turned down numerous applications from the mid1950s onwards. under regulations of 1953 and 1956 the bonn government denied compensation on the grounds that the experiments were not harmful, or that the victim was not in need. at first sterilisation victims and all former resistance combatants were automatically excluded, but then given the lowest rate of compensation. while 87 sterilisation victims received 2000 dm, only one had received compensation for sulphonamide experiments, albeit at a far higher rate. the german governmental position was regarded with contempt both by survivors‟ representative bodies, and psychotherapists, sympathetic to what was becoming recognised as “survivors‟ trauma”. there was hardly any effort to cover the full costs of care, and to provide medical assistance for victims. the demands of sterilisation victims for operative reversal of sterilisation were ignored. sickness insurance funds have never responded to the need to redress medical injuries. most attention was given to the maimed and injured “rabbits” of ravensbrück, but generally the situation has been and remains one of neglect and marginalisation. the final chapter in the history of compensation is that of the injuries falling into the category of “sonstige personenschäden” attached as subsidiary to the forced labour compensation. here, the single lump sum compensation has been often retraumatising and perceived as a further injury. this view was vividly stated by the sterilisation survivor, simon rozenkier to the new york times in 2003. 36 by the early 1960s the federal german government wished to declare the post-war era over, and terminate compensation procedures, which still did not adequately recognised medical crimes. 37 doctors who were former nazis adjudicated on compensation applications. their diagnostic categories were relics of the nazi era. 38 psychiatrists pointed out that by labelling a claimant as a hereditary schizophrenic, the germans were denying responsibility for the traumatic after effects of the experiments. at this point john thompson teamed up with the new york psychiatrists martin wangh, kurt eissler and william niederland, who had pioneered analysis of “survivors‟ syndrome”, to organise the provisional committee for victims of human disasters in 1964. the committee protested to the german chancellor erhard that 43% of compensation claims were 36 steven greenhouse, „capping the cost of atrocity; survivor of nazi experiments says $8,000 isn't enough‟ new york times (new york, 13 november 2003). 37 christian pross, wiedergutmachun:. der kleinkrieg gegen die opfer (athanäum 1988) 110. 38 ibid 142. the denning law journal 277 rejected by the federal german government, which disregarded clear evidence of damage to health because of “outmoded” medical knowledge. 39 their studies acted as symbolic bridge between first hand observers of the atrocities and concerned social scientists and historians. in september 1964 jay katz asked taylor about preparatory drafts of the final code. 40 the committee invited the yale psychologist, robert lifton to address the meeting on psychological effects on the hiroshima and nagasaki victims – indicating a wish to critically engage with the psychology of the victor. 41 lifton contacted leo alexander, mchaney and telford taylor, as his interest was aroused by the problem of the nazi medical psychology. 42 the meeting rekindled recognition for the victims of human experiments, and marked an entry point of historians and bioethicists into the field. the nuremberg code at last began to achieve legal recognition, although this has been a lamentably slow process. we are left with an irony. data protection laws and ethics are meant to protect victims. the effect is to protect perpetrators, by concealing the places where a particular victim was selected. on balance, data protection laws protect the perpetrators, and the legal, administrative and financial agencies supporting research. despite germany‟s efforts in holocaust recognition, commemoration and memorials are few for victims of medical atrocities. the medical victims can be seen as marginalised, misunderstood, and essentially forgotten – indeed, never recognised in any meaningful way. there is no death book giving the names for all victims of the “euthanasia” killings. while a number of institutions have memorials for victims of “euthanasia” at respective institutions, but full names are never given in the federal republic (in contrast to austria). at most, as at the heidelberg psychiatric clinic, the first name and initial is given. public prosecutions could allow names to be cited. here, we may cite the history of the adolescent, ernst lossa, who was a medically murdered victim at kaufbeuren, as an exception. 43 informed consent has become a sacrosanct principle of bioethics. consent forms have become part of routine clinical procedure in the uk. 39 robert j lifton, „provisional committee to chancellor ludwig erhard‟ (1965) new york public library, lifton papers, provisional. 40 columbia law library telford taylor papers, ttp-cls-14/5/6/115 katz to taylor 2 september 1964; taylor to katz 11 september 1964. 41 nylp lp martin wangh to lifton 7 feburary 1965. 42 ttp-cls-14/6/16/343 lifton to taylor 3 july 1979. nypl lifton papers box 5 alexander to lifton 10 oct 1978. 43 paul weindling, „“jeder mensch hat einen name”: psychiatric victims of human experiments under national socialism‟ (2010) 7 die psychiatrie 255. the nuremberg trials and their legacy 278 one point of concern is that informing requires expertise and specialist knowledge. how to inform meaningfully is intrinsically problematic. the risk is that the information will be so technical and expert that the subject ultimately relies on trust which is however not part of the system. the irony of the current situation is that an ethic nominally to protect the person has the effect of depersonalising and limiting the ethical obligation of physician to patient in terms of a formulaic contract. we find a situation of anonymisation and depersonalisation reflected in our limited understanding too of nazi medical atrocities limited to perpetrators, and disinterested in victims and their life histories. in the federal german republic, there has been a situation of nominal and inadequate compensation. every conceivable barrier has been placed to block understanding of victims of medical atrocities. the system generally is one of screening out the identity of the individual person. the anonymised blacked out or partially suppressed names are synonymous with a society uncomfortable with the legacy of a traumatic past. the strict confidentiality required serves to protect institutions and bureaucrats from scrutiny. the question remains, whether the mission to legitimate clinical research rendered the code too permissive in what it condoned, and too weak in its laying down of safeguards for the patient? editorial one feature of the legal scene since the war, and more particularly in more recent years, has been the proliferation of legal journals. accordingly the editor of a new journal may well be expected to provide some special reason to justify yet another periodical, and to explain in what way it seeks to fill in a gap in the literature. some indication, indeed, appears from the very name of our journal. unusual as it is for a legal journal to adopt the name of a judge it is thought to be unprecedented for one to adopt the name of a living judge. but lord denning, of course, is unique. he is fond of quoting shakespeare, and we could all appropriately quote it back at him: "he was a man, take him for all in all, i shall not look upon his like again." (hamlet: act i, scene 2) the original idea was that without being in the normal sense a specialist publication, the denning law journal should not be entirely generalist but should relate to the enormous impact that lord denning has had, directly or indirectly, upon the development of the law during a period that covers all or virtually all of the professional careers of most of those currently engaged in the law, whether as judges, practitioners or academics. it was, of course, absolutely crucial to the project as conceived that it should have the approval of lord denning, who had previously shown his interest in buckingham by giving his name to, and opening, the denning law library. we count ourselves extremely fortunate in the support we have received from lord denning, particularly in his willingness to become the patron of the journal which has the privilege of bearing his name. we have been equally fortunate in persuading lord scarman to become chairman of the editorial advisory board, and in obtaining the ready agreement of the other distinguished lawyers whose names appear on the title page to give their assistance by joining the board. their guidance will help the editors and the editorial committee in their efforts to ensure that so far as possible the contents of the journal are worthy of the name it bears. the policy of the journal is to publish scholarly articles upon matters which relate to the central themes of lord denning's life, work, philosophy and vision. 5 the denning law journal these themes include: i) the importance of developing the common law; ii) the need for judicial and community recognition of the importance and urgency of reform and modernisation of law; iii) the importance of preserving the traditions of judicial independence, integrity and creativity; iv) the importance of reflecting upon the interplay between law and morality; and v) the essential role to be played by the law in the defence of the individual in the modem state. this first issue, dedicated to lord denning, is somewhat different in two respects from the style and content we envisage for future issues. first, the emphasis is much more directly and personally concerned with lord denning's life and work and his own contribution to the law than is expected to be the norm in later issues. secondly, we have taken a deliberate decision to include some material particularly relevant in the light of the emphasis referred to, even though it has previously been published elsewhere. we have done this in cases where we judged that it might well not have come to the attention of many of our readers, and where it was particularly appropriate to this inaugural issue. included in this category is an autobiographical piece by lord denning himself. needless to say, contributors mayor may not agree with lord denning's views on the issues they discuss. no stranger to controversy and a believer in the cut and thrust of argument as a way towards achieving the right result, lord denning is, we believe, the last person who would wish to see a conformist approach. we look forward to publishing a wide range of views which will, we hope and believe, be of interest to all those interested in the development and future of the common law, and be a step towards what should be, in lord denning's words, the common goal of lawyers, namely the "pursuit of truth and justice". in conclusion it is only right, and i would wish, to give due credit to mr clifford hall, the staff editor of the journal, who originated the idea which has led to the publication of this first issue. his enthusiasm ensured that the project went forward despite various difficulties that arose during its period of gestation. i would also like to acknowledge the help and encouragement that have been given by the vicechancellor of the university of buckingham, dr michael barrett, whose support has led the university to take formal responsibility for the venture: it is a happy chance that the first issue appears in the tenth anniversary year of the founding of the university. php 6 access to the us federal courts: only interested parties need apply? barry hough * in the progress towards a comprehensive system of administrative law withering fire has been directed at the doctrine of locus standi as traditionally expounded. the dichotomy forged by the civil law between public and private rights, the former belonging to, and finding their protection in, the crown as parens patriae, and the laner belonging to the right-holder, is simplistic and inadequate in a pluralistic society in which there exist "numerous groups, communities and collectivities" 1 between the individual and the state. a system which regards a remedy as a correlative of a right or interest is somewhat paradoxical; for in public interest litigation the court is expected to have regard to, and to protect, the public interest, but must do so at the instance of an individual affected in his private capacity. applied most strictly, this tends to undermine the rule oflaw since, if no suitably qualified challenger will present himself as plaintiff, the unlawful conduct of the' defendant may continue without a remedy.2 moreover, administrative law has developed somewhat illogically to a point at which it cannot protect the meritorious but unqualified litigant in cases such as gouriet v. union of post office workers,3 but it can offer protection to the unmeritorious litigant affected by an administrative decision which is vitiated by procedural defccts.4 no-one has recognised the deficiencies of the traditional system more than lord denning whose work in this field is well recorded. for him there could be no barrier raised against the individual who' brought a bonafide complaint to the notice of the court. an individual with a prima facie case could overcome the threshold issue. for example; in r. v. paddington valuation-officer, ex p. peachey property corporation ltd. 5 he statcd: "of the school of law, university of buckingham. \. capalletti, "vindicating the public interest through the courts: a comparativist's contribution", access to justice 3 (1979) 514, 52\. see, e.g., the sierra club in sierra club v. monoll 405 u.s. 727 (1972), 2. col/riet v. l!nion ojpost office worker.; [1978] a.c. 435 provides an example in which this may have been the case. 3. supra n.2. 4. in cases where there has been a failure of natural justice an unmeritorious applicant may still be granted relief: ridge v. baldwin [1964] a.c. 40. see also, per lord denning, in annamll/llhodo v. oi/fields worker.;' trade union [1961] a.c. 945, 956. 5. [1966] i qb. 380, 400. 85 the denning law journal "i do not think grievances are to be measured in pounds, shillings and pence. if a ratepayer or other person finds his name included in a valuation list which is invalid, he is entitled to come to court to have it quashed. he is not to be put off by the plea that he has suffered no damage." (emphasis supplied) hence mr blackburn, whose injury was fundamentally no greater than that of the community at large, may have had standing to challenge the prosecution policy of the metropolitan police6 and, later, the unlawful manner in which the greater london council was exercising its powers of film censorship;7 and mr mcwhirter had his day in court to challenge the proposed broadcasting of an allegedly pornographic film notwithstanding that the attorney-general had refused his fiat to relator proceedings.8 as is well known, the house of lords adhered to a more traditional exposition of the standing rules; 9 but there are clear signs that, following the introduction ofr.s.c. order 53, a less restrictive approach has been adopted based on the "sufficient interest" formula.lo it is striking that, whilst lord denning was engaged in re-fashioning english law, similar developments could be traced in other common law jurisdictions and, in particular, the united states. the expansion of the law of standing in federal law has largely been the work of the supreme court. arguably, this trend reached its zenith in us. v. scrap,ii after which concern was expressed that further progress would allow the judiciary, almost by self-invitation, to step beyond the jurisdiction to which it is confined by art. iii of the federal constitution. this notwithstanding, there exists a line of authority which places a fundamental reinterpretation upon art. iii thereby posing new questions touching upon the proper role of the courts in the settlement of disputes. the resulting tensions in the law are not dissimilar to those which sparked between the court of appeal and the house of lords whilst lord denning held office as master of the rolls. developments in the federal c0urts constitute a most valuable study, and the purpose of the present article is to examine and evaluate these as an instructive approach to similar problems which have faced our own courts. it will be shown how, in federal law, the law of standing developed away from a 'strict legal rights' theory to one where access to court was based primarily upon the challenger having suffered some "injury in fact"; how that formula was expanded to the point where "any identifiable trifle" could suffice to generate locus standi; how subsequently the concept of "injury in fact" was limited by the adoption of strict rules requiring that the "injury" be sufficiently proximate to the action challenged; how, in spite of the recent narrowing of the standing concept, 6. [1968] 2 qb. 118. 7. r. v. greater london council, ex p. blackbunl [1976] 1 w.l.r. 550. 8. r. v. independmt broadcasting authon'ty, ex p. mcwhirter [1973] qb. 629. 9. gouriet v. union of post office workers, supra n.2. 10. i.r.c. v. national federation of self-employed and small businesses lid. [1982] a.c. 617; r. v. hammersmith f5 fulham borough coul/cil,ex p. people before profit [1981] ].p.l. 869. 11. 412 u.s. 669 (1973). 86 access to the us federal courts: only interested parties need apply? there remains a line of authority which holds that rules of standing based upon the self-interest of the litigants in the outcome of the litigation are not strictly warranted by art. iii of the federal constitution; and how it is that in certain circumstances any plaintiff may have access to court notwithstanding his own lack of interest in the outcome, provided that the court, on hearing him, can be assured that he will present every view which would have been advanced had the right-holders themselves been before the court. it is not impossible that, at some future date, the abandonment of the traditional "injury-standing" philosophy will be based on an expansion of this line of authority. standing in the u.s. federal courts article iii of the united states constitution places a fundamental limitation upon the competence of the federal courts: their jurisdiction is limited to "cases" or "controversies".12 it has been stated that this rests upon "a single basic idea the idea of separation of powers." 13 the orthodox interpretation of art. iii is that it requires a live dispute between self-interested parties.14 it follows that the courts have never pronounced upon "abstract", "conjectural" or "hypothetical" issues; 15 for example the supreme court has declined to advise the executive on the "construction of treaties, law of nations, and the laws of the united states.,,16 art. iii has been held to prohibit both the litigation of third-party rights,17 and 12. article iii, section 2 1. the judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the united states, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. 13. ai/en v. wright 104 s.ct. 3315, 3325 (1984) per justice o'connor delivering the judgment of the supreme court. 14. if the plaintiffs claim is settled, or he loses his interest in the matter, after the filing of the action, he will lose a legally cognizable interest in the matter which is then "mooted". the courts will generally decline to rule on a matter which has been "mooted", unless the facts are "capable of repetition, yet evading review" in a similar matter. for example, if the plaintiffs interest in the matter is that she is pregnant and denied an abortion by virtue of state laws which she alleges are unconstitutional, she would lose her interest upon the birth of the child. if the court held that her claim were "mooted" by the birth of the child it would effectively deny the plaintiff all chance of appellate review of her case. in the normal process an appeal could not be heard within the normal gestation period of 266 days. thus, a strict application of the "mootness" doctrine would effectively deny her, and every other pregnant challenger, the opportunity to contest the constitutionality of the statute on appeal with the result that the constirutionality of the statute would always evade review in the superior courts: see roe v. wade 41 0 u.s. 113, 125 (1975). 15. allen v. wright, supra n.13. 16. twenty-nine questions concerning the construction of a pending treaty were submitted to the supreme court for its opinion by president washington in 1793. the court declined to consider the matter since no live dispute within art. 1il was involved. the matter, in the absence of a "case" or "controversy", was merely advisory and outside the function of the judicial branch of the state. 17. tilestoll v. ulima ii 318 u.s. 44 (1943). but this seems to admit of exceptions: see singleton v. wulff 966 s.ct. 2868 (1976). 87 the denning law journal generalized grievances.18 the requirement that the plaintiff should demonstrate a "personal stake in the proceedings,,19 is seen as a "core component" of art. iii and derives "directly from the constitution."zo although art. iii is not explicit about the nature of the interest which the plaintiff must demonstrate in the proceedings, and indeed is silent as to whether or not any interest need be shown, nonetheless the courts have felt able to require that an interest must be demonstrated by the litigant and to determine the nature of that interest having regard to the policy function of the law of standing and prevailing social attitudes. originally, the "cases" or "controversies" principle was construed so as to limit the judicial role to the settlement of private disputes. judicial control of administrative action could only proceed at the instance of an individual directly affected in his private legal rights. tennessee electric power co. v. tennessee valley authority is a leading decision in which the "legal interest" test was advanced. it was there held that standing pre-supposed " ... that the right invaded is a legal right. one of property, one arising out of contract, one protected against tortious invasion, or one founded on statute which confers a privilege.,,21 fundamentally, the "legal interest" test denied the individual any protection of non-economic values, the aesthetic, conservational and recreationa1.22 it also. limited the scope for potential challenge to what would generally be a small class of persons affected in their legal rights. the supposed justification for such a rule was that it prevented a multitude of claims arising out of one unlawful act23 and yet would ensure the vindication of the rule of law because the greatest incentive to challenge unlawful conduct lay with those economically affected. however, experience in the united states demonstrated that the fear of judicial inundation could not, by itself, justify continued adherence to such a narrow standing formula as the "legal interest" test. individuals do not trifle with the courts. in recognition of this, and in the limited context of the michigan environmental protection act 1970, the standing barrier was removed since it was felt that if anti-pollution controls were to be effective the private individual must have a central role in the enforcement of the legislation. the act enabled any individual to bring proceedings against anyone else to ensure the protection of the air, water, and natural resources of the state. significantly, michigan is highly 18. schlesinger v. reservists to stop the war 418 u.s. 208 (1974). 19. baker v. carr 369 u.s. 186, 204 (1962). 20. per o'connor]. in allen v. wright, supra n.l3. see per bark]. (concurring) in vanderjagt v. o'neil 699 f. 2d. 1166, 1178-1179: "all of the doctrines that cluster about art. iii not only standing, but moomess, ripenness, politica] question and the like relate in part.. to an idea which is more than an intuition, but less than a rigorous and explicit theory, about the constitutional and prudential limits to the powers of an unelected judiciary in our kind of government." 21. 306 u.s. 118, ]37-]38 (1938). 22. in association of data processingv. camp 397 u.s. 150, 154 (1970), the supreme court emphasized that standing could be based upon <\ threat to these kinds of interests as well as economic loss. 23. this was a policy which was, perhaps, imported into federal law from england. an early statement appears in william's case, 5 co. rep. 72b, 73a. 88 access to the us federal courts: only interested parties need apply? industrialized with extensive mining and manufacturing undertakings within its boundaries, especially around detroit, all of which could pollute four of the five great lakes which lie within the state. however, the courts were not swamped with claims. in the years following the introduction of the act, and notwithstanding the immense potential for litigation, only a comparatively small number of claims were brought under it each year.24 the clear lesson was that the restrictive doctrine of standing could not be justified as a protection for the courts from numerous claims arising out of a single unlawful act. 25 the supreme court responded by abandoning the "legal interest" test in favour of a more extensive standing formula. in association of data processing v. campz6 it was held that access to federal courts would be available to a plaintiff who could demonstrate that: ". .. the challenged action has caused him injury in fact, economic or otherwise. ,,27 and additionally that: " ... the interest sought to be protected is arguably within the zone of interest to be protected or regulated by the statute or constitutional guarantee in question. ,,28 a bi-partite test for standing was thereby introduced. further developments in the law of standing were founded upon the first limb of the test which confirmed the view that standing must depend upon some personal "stake" in the outcome of the litigation.29 this only begged the further question as to what kinds of interest would be sufficient. the second limb of the test was more enigmatic. it is proposed now to consider how the federal courts applied the injury-standing limb of the test; secondly to examine the meaning and value of the "zone of interests" part of the test; and then to consider the most recent developments which have been designed to set new jurisdictional limits through an insistence that the injury complained of must not be too remote from the illegal conduct of the defendant. injury in fact it has been stated that "injury in fact" requires only that the plaintiff show that he has suffered some harm as a result of the defendant's allegedly unlawful conduct.3o the supreme court has confirmed this view by expressing approval of davis' conclusion3! that any identifiable, even though only trifling, loss would satisfy the new standing formula.32 naturally, according to this liberal 24. approximately twenty five cases each year in the years immediately followingthe enactment of this provision. 25. moreover the supreme court reasoned that the "legal interest" test was circular: "the legal interest test goes to the merits. the question of standing is different .. ": 397 u.s. 150, 153 (1970). 26. 397 u.s. 150 (1970). 27. ibid., at p. 152. 28. ibid., at p. 153. 29. supra n. 19. 30. vining, legal identity, at p. 29. 31. "standing: taxpayers and others:', 35 u. chicago l. rev. 601, 603 (1968). 32. u.s. v. scrap, 412 u.s. 669 (1973). 89 the denning law journal interpretation, a variety of non-economic injuries will suffice,33 but it has been held that neither the possible risk of future injury,34 nor the mere exposure of the plaintiff to unlawful action without consequent loss will generate standing.35 the extent to which the "injury in fact" test had broadened the categories of individual entitled to come to court is demonstrated in the scrap case,36 which illustrates the willingness of the supreme court at that time to explore the very limits of the art. iii "cases" or "controversies" principle. scrap, the plaintiffs in this case, challenged a decision of the inter-state commerce commission (lc.c.) to impose a surcharge on railway freight. it was argued that this would augment reliance on non-recyclable goods which, in tum, would cause litter in the washington metropolitan area. scrap, an ad hocenvironmental protection group, alleged that the lc.c.'s decision had been reached without the preparation of the environmental impact statement required by statute. the group's interest in the matter was merely that it used the area in question for recreational purposes. there was no threat to anything which members of scrap owned, yet the supreme court held that such detriment as they suffered was sufficient to constitute "injury in fact". the use of the environment purely for recreation was an interest which the courts had jurisdiction to protect. one interesting feature of the case is that the court was not inhibited by the indirect nature of both the injury and the remedy awarded. for example, the court could not be sure that the quashing of the lc.c.'s decision would alleviate the grievance of scrap; that would be the responsibility of members of the public who used the area in question. thus the court did not require a guarantee that its intervention would redress the "injury in fact" upon which the standing of the group was based. subsequently, however, the supreme court has used the standing barrier in order to deny a claim where it could not positively be shown that the relief sought would provide a remedy for the complaint alleged.37 it is also interesting to note that the loss alleged by scrap was shared in equal measure with other members of the community at large, thereby demonstrating that public values can be the concern of the individual litigant; indeed the case all but suggests that a "private attorney-general" can maintain an action to vindicate the public interest. this notwithstanding, it is also arguable that scrap is but an application of the "injury in fact" principle within the framework laid down by the supreme court in the data processing case. the concern expressed in the latter case that the antiquated "legal interest" test prohibited the protection of non-economic values, itself suggests the propriety of the concern of the members of scrap with the recreational interests which they shared with all other members 33. dala processing v. camp 397 u.s. 150, 154 (1970). 34. roe v. wade 93 s.ct. 705, 714. 35. allen v. wrighl104 s.ct. 3315 (1984). 36.412 u.s. 669 (1973). 37. see, e.g., warth v. seldin 422 u.s. 490 (1975), discussed ilifra. 90 access to the us federal courts: only interested parties need apply? of the community. however, in spite of the bold liberalization of standing achieved in scrap the courts were initially careful not to erode further the notion of "injury in fact". for example, in sie"a club v. morton38 an environmental protection organisation sought, on behalf of its members, to resist the commercial development of a site of great natural beauty adjacent to the sequoia national park. without alleging that any of its members had suffered any harm as a result of the granting of permission to develop that site, the club asserted that, by its nature, it had a special interest in the conservation and maintenance of national parks which would justify the court in awarding it standing to sue. however, the supreme court held that, since the pleadings did not reveal that any "injury in fact" had been suffered by the club's members the action could not proceed in that form. a jortiori standing was denied in o'shea v. littleton39 where the plaintiffs based their claim upon the rights of third parties who, they alleged, had been discriminated against on the grounds of their race and colour in the county's criminal justice system. the appellants had suffered no harm in their own private capacity and so the suit could not be maintained. significantly, the invitation to treat the exposure of the plaintiffs to the illegal conduct of the defendant, without any further 'loss', as constituting "injury in fact", was not accepted by the supreme court recently in allen v. wn'ght.40 as a result of these "cases,it is manifest that the supreme court has been prepared to accept any concrete harm suffered in one's personal capacity as sufficient to generate standing to sue, but that loss suffered by third parties, or the mere exposure to unlawful conduct without any harm resulting in one's private capacity, will not suffice. yet the promise of the data processing case has been fulfilled in so far as the courts will intervene to protect an individual whose interest in the matter was not purely economic, and thus the kinds of injury which will suffice for standing purposes would include the aesthetic, recreational and cultural interests upon which a high value is necessarily placed in a civilized society. the second limb of the data processing test: the zone of interests, protected or regulated the interpretation placed on art. 111 by the supreme court not only requires the plaintiff to demonstrate "injury in fact" but also that the interest he seeks to protect is " ... arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.,,41 doubts have been expressed as to whether or not this provides any workable supplement to the "injury in fact" limb of the test.42 in the data processing case itself, brennan and white jj., who 38. 405 u.s. 727 (1973). 39. 414 u.s. 488 (1974). 40. supra n. 35. 41. associalion ofdalaprocessingv. camp 397 u.s. 150, 153 (1970). 42. vining, legal identity, p. 104 el seq.. 91 the denning law journal delivered dissenting opinions as to the imposition of this second limb of the test, posed the following questions: "what precisely must a plaintiff do to establish that the interest sought to be protected ... is arguably within the zone of interests to be protected or regulated by the statute? how specific an interest must he advance? will a broad, general claim, such as a competitive interest suffice, or must he identify a specific legally protected interest? when, too, is his interest 'arguably' within the 'zone'? does a mere allegation that it falls there suffice? if more than an allegation is required, is the plaintiff required to argue the merits? and what is the distinction between a 'protected' and a 'regulated' interest? is it possible that a plaintiff may challenge agency action under a statute that unquestionably regulates the interests at stake, but that expressly excludes the plaintiffs class from the statutory beneficiaries."43 brennan and white 11 concluded that the standing formula comprised merely "injury in fact". the language of the second limb (the zone of interests proteaed or regulated) suggests that the constitutional guarantee in question must intentionally set out to protect or regulate the interest advanced by the plaintiff before he can have standing to sue. thus, the intention of the legislature in enacting a particular measure is directly at issue. in the united states this has been criticised as unsatisfactory and, ultimately, unworkable. a leading commentator44 has stated that the "statutory beneficiary" inquiry detracts from the central issue, which is determination of harm for the purpose of invoking the judicial role. if the individual has suffered such harm, then he will have suffered "injury in fact" and, by itself, that would satisfy art. iii. the problems inherent in the notion of the "statutory beneficiary" have been judicially recognised, and it may be that this limb of the data processing test is no longer regarded as helpful in any standing inquiry. significantly, in duke power v. carolina environmental stud)' group45 the supreme court established that the constitutional requirements for standing were that the appellant should have suffered "injury in fact" and, additionally, that there should be a causal connection between the injury alleged to have been suffered and the challenged conduct. one commentator has observed that the failure even to note the second limb of the data processing test is "as much a reflection of its irrelevance as its desuetude.,,46 it is likely that the second limb of the data processing test has been abandoned. henceforward, the approach adopted in duke power is probably to be regarded as 43.397 u.s. 150, 177. 44. supra n. 42. 45. 98 s.ct. 2620 (1978). 46. 92 ham l. rev. 253, 261. as ely states, it is difficult to justify the "zone of interests" limb of the test since, in constitutional matters such as the due process guarantee, all citizens of the united states might arguably be within the zone of interests to be protected. this limb of the test is almost meaningless in such matters. 92 access to the us federal courts: only interested parties need apply? authoritative. the plaintiff will have standing if his "injury in fact" is sufficiently proximate to the challenged conduct. the causation requirement in a series of cases the supreme court appeared to resile from the liberal attitude that it had adopted in the scrap case.47 it had been noted with concern, even in scrap itself, that the court had been asked to follow "an attenuated line of causation to the eventual injury",48 quite apart from the fact that the "injury in fact" rule had been so undermined that "any identifiable trifle" could constitute a legally cognizable injury.49 as a result, a renewed search for jurisdiction limitation was begun based upon the concept of remoteness of injury. in warth v. seldin50 it was decided that remoteness involves two related ideas; first, that the plaintiff must show directness of injury and, secondly, redressibility of injury in so far as the relief sought will remove the harm of which the plaintiff complains.51 the directness of injury requirement is a valid one because, in highlighting the defendant's factual responsibility for the plaintiffs injury, the rule ensures that the proper defendant is identified in the suit. the redressibility requirement is thought to emanate from a rule of constitutional law that the court will have no jurisdiction to pronounce upon the matter if its judgment will not affect the controversy between the parties. however, it can be argued that those two requirements have been misapplied or not applied at all. one issue to be resolved was whether these twin causation requirements would prohibit the award of standing to a litigant whose injury was only inflicted indirectly, as, for example, had been the case in scrap. 52 as mentioned above, the members of scrap would have had difficulty in establishing that the possibility of an increase in litter in the environment would be eradicated by the court's intervention in that case. thus a redressibility requirement, strictly applied, could exclude all claims based upon "injury in fact" inflicted only indirectly. however, although in linda r.s. v. richard d. 53 the court declined to award standing to the appellant in these circumstances, a less restrictive attitude now seems to have gained ground. the redressibility requirement, for example, can be satisfied if there is a likelihood, 54 or perhaps a substantial likelihood, 55 that the relief sought will redress the plaintiffs injury. similarly, the plaintiffs injury 47. warth v. seldin 422 u.s. 490 (1975); linda r.s. v. richard d. 410 u.s. 614 (1975); simon v. eastem kentucky welfare rights organization 426 u.s. (1976); and lately, allen v. wright 104 s. ct. 3315 (1984). 48.412 u.s. 669, 688 (1973), per stewart]. 49. ibid., at p. 689 n. 14. 50. supra n. 37. 51. whether the relief sought must, if granted, inevitably redress the injury has been a controversial matter and is discussed below. 52. supra n. 32. 53.410 u.s. 614 (1975). 54. ai/err v. wright, supra n. 47, at p. 3325. 55. duke power v. carolina e,lvirolmumtal study group 438 u.s. 59. 93 the denning law journal need only be "fairly traceable" to the defendant's conduct.56 thus formulated, the twin causation requirements seem to embrace "injury in fact" inflicted indirectly, and standing has been awarded in these circumstances notwithstanding the decision in linda r.s. v. richard d.57 nonetheless, there remains a hesitancy to award standing in these circumstances and this has deprived some would-be litigants of access to court. even in cases in which there has been certainty as to the standards to be applied, the results seem to defy a coherent exposition. simon v. eastern kentucky welfare rights organisation58 illustrates the confusion which clouds the causation issue. here standing was ostensibly denied because the plaintiffs could not show directness of injury. the action was brought by a financially disadvantaged class who sought to challenge a policy of the internal revenue service which conferred a favourable tax status on hospitals which treated poor people only in emergency cases. on behalf of the class it was argued that this policy decision encouraged discrimination in the provision of hospital care against less well-off citizens in violation of their constitutional rights. standing was denied because the supreme court, although apparently paying lip-service to the notion that standing could be awarded to those suffering only an indirect injury, rejected the argument that the quashing of the internal revenue service's policy would remove the incentive to discriminate, thereby providing an indirect remedy for the injury suffered. this argument was dismissed as being "speculative".59 however, it is not unreasonable to assume that individuals will respond to tax incentives; indeed the purpose of granting such an incentive is to promote the activity in question, and the removal of that incentive, by the same token, may discourage it. hence, in contrast to its decision in scrap, the supreme court now seemed willing to intervene only where it would be certain that the granting of relief would alleviate the "injury in fact" upon which the claim was brought. normally, this would be in cases of injury inflicted directly. however, in other cases where the court seems to have been willing to consider the merits the causation requirement has been applied in a less rigorous manner, and standing has been awarded in respect of "injury in fact" inflicted indirectly upon the plaintiffs. this was particularly so in duke power v. carolina environmental study group. 60 in this case an environmental protection group challenged the validity of a federal statute, the price-anderson act, which limited the amount of damages which could be recovered against companies licensed to operate nuclear power stations in the event of a nuclear accident. the act has been passed in order to make the development of the nuclear industry more attractive to investors. the group 56. simoll v. eastem kmtudry welfare rights orgallizatioll and ai/m v. wnghl, supra n. 47. 57. e.g., duke power v. caro/illa elivironmmta/ study group, supra n. 55, and regmts of the university of califomia v. bakke, infra n. 61. 58.426 u.s. 26 (1976). 59. ibid., at pp. 43-44. 60. 98 s. ct. 2620 (1978). 94 access to the us federal courts: only interested parties need apply? alleged that two nuclear plants, which were in the process of being constructed, would cause low-level radiation, thereby affecting the water temperature and wildlife in nearby lakes. had simon been followed, the group would have had difficulty in establishing redressibility since it was unlikely that it could demonstrate that the low level radiation problems were "fairly traceable" to the price-anderson act. similarly it would have been difficult to prove that there was a substantial likelihood that the quashing of the act would cure those problems. the nuclear power stations were already partially constructed and, in view of the substantial commitment of funds already made, it was unlikely that the companies would dismantle the power stations simply because the limit on liability for nuclear accidents had been removed. however, the court held that the group had standing to sue. reliance was placed upon evidence which showed that the companies would not have become involved in the nuclear industry without the safeguards of the price-anderson act. the act was therefore held to have encouraged the growth of the nuclear industry and it was this which forged the necessary causative link between the "injury in fact" and the challenged provision. this being so, it is not easy to understand how in simon the granting of tax concessions to private hospitals, whose medical fees excluded poor patients, did not encourage the hospitals to maintain their activities. the two decisions seem difficult, if not impossible, to reconcile. however, perhaps the most interesting comparison is that between warth v. seldin 61 and regents of the university of california v. bakke.62 in the former case various litigants challenged a city zoning or planning ordinance which, they alleged, prevented the construction of cheaper housing in the city of penfield. it was argued that this violated the constitutional rights63 of the poor since the ordinance would have the effect of denying them access to homes in the city. however, those litigants who based their challenge on the ground that, enjoying only a low or moderate income themselves, the ordinance injured them personally, failed to show that their injury would be redressed by the intervention of the court. house prices were regulated by market forces which, it was held, were beyond judicial influence. however, the market forces argument cannot logically dispose of the case. just as house prices may have been the product of market forces, so were incomes, and it is reasonable to suppose that, in fixing wages, account would have been taken of the local housing costs. naturally, those on low or moderate income would then, presumably, have been able to afford the cheaper property had it been available. the plaintiffs argument was that such housing was not to be constructed by virtue of the zoning ordinance, and it was that legislation, and not market forces, which excluded these litigants from the penfield area. on the facts, it is therefore argued 61. supra n. 37. 62.438 u.s. 265 (1978). 63. as well as rights under the civil rights statute 42 u.s.c.s. c.l. 1981-1983. 95 the denning law journal that the "substantial likelihood" test for redressibility was satisfied as far as these litigants were concerned, and that therefore they should have been awarded standing to sue. in bakke's case standing was awarded on legally similar facts. broadly, a white male applicant was denied a place at a medical school which, in respect of a number of its places, discriminated in favour of minority groups. bakke's academic record was more distinguished than some admitted under this programme and so he alleged that his exclusion violated his constitutional rights. however, he faced the same difficulty concerning the redressibility requirement that had proved fatal to the claims in warth v. seldin. even if the court declared the admissions policy to be unlawful, bakke would not necessarily be admitted to the school. access would still be regulated by the school itself, just as access to penfield in warth v. seldin was considered to have depended upon extraneous market forces: both were outside the control of the court. the supreme court responded by re-examining bakke's injury. it was held that, in truth, his injury was the loss of opportunity to compete for all the places in the school by virtue of the challenged admissions' policy. of course, had a similar approach been adopted in warth v. seldin some of the plaintiffs might also have been awarded standing to sue. after all, they had been denied the right to compete for the more modest property which would have been available in penfield in the absence of the zoning ordinance. arguably these two decisions are also incapable of reconciliation. in conclusion, it seems that although the supreme court has accepted the principle that injury inflicted indirectly may be cognizable, the decisions betray an obvious lack of coherence. the re-definition of bakke's injury makes a nonsense of the decision in warth v. seldin. this haphazard approach has led to judicial doubts as to whether the causation principle is not employed merely as a camouflage for the court's aversion to the plaintiffs claim.64 in considering the causation issue, the problem no longer seems to be the formulation of an appropriate test, but rather, in the light of value judgments which appear to have crept into these recent decisions, of ensuring its consistent application. this haphazard application of the causation rules, allowing the court to award standing in some cases, but not in others which are legally indistinguishable, highlights a continuing, deep-seated, confusion affecting the most basic jurisdictional issues. therefore, in spite of the recent attempts to formulate definitive principles regulating the standing inquiry, the most fundamental questions seem to remain unresolved: what kinds of dispute are amenable to judicial settlement? what kinds of grievance entitle an individual to invoke the aid of the court? have any new solutions to these questions been postulated? 64. per brennan j. (dissenting) in allen \'. wright 104 s. ct. 3315, 3341 (1984). 96 access to the us federal courts: only interested parties need apply? the future of the injury-standing principle the law is still in a transitional stage and the answers to the above questions have not been found. recently, however, there have been signs that possible future developments in the law of standing may be based upon a radical re-appraisal of art. iii which might result in the abandonment of the whole "injury-standing" philosophy. at present this attenuated line of authority is confined to particular circumstances which are thought to be exceptional and only of limited application. but if ever an exception were likely to undermine the general rule, these cases show such a potential since their rationale is precisely that art. iii does not require the individual litigant necessarily to demonstrate any personal interest in the outcome of the suit. it has been stated that art. iii does not, of itself, require that the judicial role be confined to the settlement of disputes between self-interested parties.65 that is a limitation which the courts have placed upon themselves, but which has, in the past, been thought to emanate from an. iii. it has been argued that the "cases" or "controversies" principle merely seeks to entrench the adversarial nature of the judicial process.66 at the heart of this is the notion that the courts depend primarily upon full argument provided by the parties. in order that a just settlement can be reached, each must put forward every view which could be seriously advanced in support of his own case. this has been dubbed "vigorous advocacy" by one party of his own rights.67 however, the quality of "vigorous advocacy", it is now thought, can exist without the plaintiff having any personal interest in the outcome of the litigation; in other words the plaintiff's challenge may be based upon third party rights, because the former may be in a position to advance that cause as effectively as the right-holders themselves. access to court then becomes a question of fact namely whether the challenger can advance every point which might have been made by the right-holders themselves. as will be indicated, the most important consideration is the 'proximity' of the relationship between the challenger and the right-holder. the origins of this view are of respectable antiquity in federal jurisprudence, and are echoed even in our own law.68 an early statement in federal law appears in holden v. hardy,69 in which a state statute prevented employees in the mining industry from working in excess of eight hours each day. a mine owner argued that the statute violated the equal protection clause of the federal constitution in so far as it inflicted particular hardship on his employees and removed from them the right to labour as long as they pleased. the supreme court, in doubting his right to base his challenge upon the loss suffered by third parties, stated: "[his] 65. u.s. parole commissioner v. geraxhly 100 s. ct. 1202 (1980). 66. this has been accepted for a considerable period. hitherto, howcver, only thc plaintiffs cognizable interest guaranteed adversity: bakerv. carr 3669 u.s. 186 (1962), and o'shea v. liltlelon 414 c.s. 488 (1974). 67. sec, e.k.• u.s. parole commissioner v. gerakhl)', mpra n. 65. 68. john v. ras 119691 2 all e.r. 274, 282, per tvlegarry j. 69. 18 s. ct. 383 (1898). 97 the denning law journal argument would certainly come with better grace and greater cogency from his workers." 70 "vigorous advocacy" by the mine owner of the rights of the employees was not likely in this case since they did not enjoy similar interests in the action. clearly the de-regulation of the working hours in mines might lead to exploitation of the miners by the owners, and thus it was likely that the employees would have wished to resist de-regulation. hence, the litigation of the third party rights in this case could not proceed. however, in u.s. parole commissioner v. geraghty,71 the supreme court did hear an appellant who lacked any interest in the suit in the traditional sense. the case concerned a prisoner who, whilst still in custody, sought to challenge the validity of parole release guidelines on behalf of himself and others similarly affected by them. during the course of the suit however, he was released from prison, and so lost his personal interest in the suit. it is settled law that he could have continued to represent the class, in spite of his own lack of a personal interest, if he obtained a certificate from the district court that his action was properly framed.72 this had, however, been denied to him. he wished to appeal against the ruling of the district court, but found himself in the impossible position of not having a cognisable injury in the suit and thus being unable to invoke the aid of the court even by way of appeal from the denial of certification. the supreme court approached the difficulty by examining again the fundamental purposes of the art. iii "cases" or "controversies" principle. at one level the resulting opinion appears to accept the orthodox view that "the imperatives of a dispute capable of judicial resolution are sharply presented issues in a concrete factual setting, and self-interested parties vigorously advocating opposing positions."73 however, in spite of the apparent emphasis placed upon the need for self-interest as an "imperative" of the court's jurisdiction, the supreme court awarded standing to the plaintiff in this case notwithstanding his lack of a personal interest in the outcome of the suit. the crucial finding was that the plaintiff remained a "vigorous advocate" of the class members' interests who were still affected by the parole guidelines in question. whilst "vigorous advocacy" may depend upon the advancement by the plaintiff of a personal interest in the suit, the notion embraces cases in which a non-interested litigant appears before the court. the initiative in this case is thus the divorce of "injury in fact" from the art. iii "cases" or "controversies" principle where effective advocacy can be provided by other means. in determining whether a litigant can provide vigorous advocacy when seeking to litigate third party rights, two considerations seem to assume a greater 70. ibid .. at p. 390. 71. supra n. 65. 72. the certificate is available under federal rule of civil procedure 23. an example of its use appears in sosna v. iowa 419 u.s. 393 (1975). 73. 100 s. ct. 1202, 1212 (1980). 98 access to the us federal courts: only interested parties need apply? importance than all others, and it is these which have allowed the courts to justify this form of litigation as an exception to the general principles of standing. first, there must be a close relationship between the litigant and the third party right-holders; second, the right-holders must find some difficulty in enforcing their own rights, although, as will be seen, in practice little weight seems to be attached to this latter principle. singleton v. wuljf74 provides a typical illustration of this type of litigation. two licensed physicians challenged the constitutional validity of a statute restricting the availability of abortion treatment under the medicaid programme on the grounds that it violated the constitutional rights of their female patients. the court, finding that the doctor/patient relationship was a relationship of confidence, and also that women who might otherwise wish to enforce their own constitutional rights would encounter problems75 which would inhibit their willingness to come to court, allowed the challenge by the physicians. since, it was held, a woman relied upon the doctor to perform any abortion, the interests of both in this challenge could be regarded almost as synonymous. it was stated that "there seems little loss in terms of effective advocacy from allowing the assertion of [the patients' rights] by a physician."76 as was stated in holdetl v. hardy,77 the convergence of interests enjoyed by the right-holders and the challenger is a necessary safeguard for the former, since the challenger will then be able zealously to present their mutual interest in the case, and the principle of res judicata could not then prejudice the right-holders. relationships of sufficient mutuality have been held to include that between teacher/pupil and parent,78 and somewhat controversially, in carey v. population seroices international,79 between vendor and purchaser in a case which concerned the regulation of the marketing of contraceptives. if the latter case is a correct exposition of the law it might not be unreasonable to take the view that the interests of the environmental protection group and the owners of the land threatened with pollution in scrap converged to the extent that litter pollution would almost certainly have been opposed by both. it might therefore have been conceivable that there was no injustice done in hearing only the members of scrap and not the right-holders, since the former could supply the same 74.96 s. ct. 2868 (1976). 75. the court identified "mootness" as the first difficulty encountered (see n. 14 supra). secondly, it was felt that a woman might be deterred by considerations of privacy. significantly, the court admitted that both of these considerations might easily be overcome. mootness could be avoided by the application of the "capable of repetition, yet evading review" principle (n.14 supra); and the litigation' could proceed anonymously as, e.g., in roe v. wade (supra n. 14). thus, the justification for allowing a claim by a non-interested party based upon the supposed difficulty that the right-holders would encounter if enforcing their own rights is somewhat tenuous, and could be regarded as a scarcely veiled attack upon the general injury-standing principle itself. 76. single/on v. wulff, supra n. 74, at p. 2876. 77. supra n. 69. 78. pierce v, society of sisters 268 u.s. 510 (1925). 79.97 s. ct. 2010 (1977). 99 the denning law journal "vigorous advocacy" as the right-holder themselves if they had instituted proceedings. however, in spite of the broadening of the exceptions to the "injury-standing" philosophy, the supreme court in allen v. wright80 emphatically resisted its abandonment. "injury in fact" suffered by the plaintiff is, it was held, of "constitutional significance" and necessarily inherent in art. iii since it was the purpose of that article to foster the separation of powers within the constitution. the judicial branch has no power to decide upon "abstract" issues which fell within the preserve of the representative branches of the state. the judicial power was confined to "specific" matters in which each party had an identifiable stake in the outcome. doubt has therefore been cast upon the propriety of a re-interpretation of art. iii based upon geraghty's case,81 and it is probably unlikely that any fundamental developments in standing are imminent. however, it is important to note that where the court is willing to consider the merits, the matter may well be held to fall within one of the exceptions to the ordinary standing principles. although one purportedly rests upon the narrow grounds that the plaintiff must share a close relationship with the right-holders and that the latter must have some difficulty in enforcing their own rights, the exception is in fact very much more expansive than this formulation suggests. its breadth was revealed by the supreme court when it held that the relationship of vendor and consumer may fall within its parameters,82 in a decision which goes far beyond what had hitherto been acceptable. as a result of this case, the precise limits of this exception category must be in considerable doubt, and its further expansion could, by itself, threaten the orthodox rules of standing based upon "injury in fact". it is now arguable that the continued broadening of the categories of relationship which justify a departure from the orthodox standing principles, coupled with the questions surrounding the true rationale of art. iii, may ultimately lead to an erosion of the injury-standing principle. conclusion the doctrine of locus standi, in its outmoded proprietorial mould, served to exclude the public spirited litigant who stepped forward to challenge unlawful public action in a matter in which he had no legally cognizable interest. consequently, where the attorney-general refused to act, the courts were forced to wait upon a challenge by a member of a possibly small class of those who had suffered the kind of injury which the court would recognise. although, perhaps, the greatest incentive to come to court lay with those affected by the unlawful public action in question, increasingly, those who have wished to do so have been motivated by reasons other than the protection of a personal right or interest of their own. however, under the traditional doctrine of standing, the court has declined to hear the public spirited 80. 104 s. ct. 3315 (1984). 81. supra n. 65. 82. supra n. 79. 100 access to the us federal courts: only interested parties need apply? litigant who lacks a recognized interest in the outcome of the suit, no matter how meritorious the substance of his case.83 in both english law and united states federal law recent developments have sought to strike an appropriate balance between instituting an aaio popularis on the one hand, and enforcing a rigorous doctrine of standing which would inevitably disqualify the meritorious but otherwise unqualified litigant on the other. for lord denning the matter was clear: the court should entertain causes brought bona fide by an individual who could demonstrate a prima facie case that a public authority had breached its public duty. this was the tenor of his judgment in the peachey-property case,84 and it was a theme which he re-iterated in the blackburn cases.85 the house of lords appears to have been persuaded by the pragmatism of such an approach in i.r.c. v. national federation of self-employed and small businesses ltd., 86in which it envisaged circumstances in which a litigant, otherwise lacking a sufficient interest, might nonetheless have standing to sue.87 equally, the supreme court in the data processing case seems to have recognised the prevalence of the public policy considerations weighing upon the standing doctrine. it released the doctrine from its proprietorial chains, but retained the need for the plaintiff to show some detriment in his private capacity. it continued to expand the categories of person entitled to sue in scrap, in which non-economic values were held to constitute "injury in fact", and standing was awarded even though the loss was inflicted only indirectly. data processing and scrap mark significant progress towards a comprehensive system of administrative law in the united states. it is lamentable, however, that the causation principle has been employed subsequently in such an arbitrary manner. the suspicion perhaps cannot be avoided that the denial of standing to litigants such as those in warth v. seldin was predicated upon covert policy reasons which, if disclosed, would perhaps reveal a judicial aversion to the merits of the plaintiffs case. parallel developments in areas generally regarded as justifying a special treatment outside the ordinary standing rules continue to indicate the need for a certain flexibility in the application of the general principle itself. in order to avoid the inconvenience of the normal rules the supreme court has loosened the confines of the exceptional categories, and has justified its decision to do so by questioning the long accepted orthodoxy that art. iii entrenches the injury-standing principle as part of the federal constitution. moreover the continued broadening of the categories of those entitled to circumvent the "injury in fact" requirement may cause the eventual atrophy of the injury-standing 83. e.g., gouriet v. union of post office workers [1978] a.c. 435. 84. [1966j 1 qb. 380, 400. 85. r. v. commissioner of police of the metropolis [1968] 2 qb. 118; blackburn v. a/lornry-generaj [19711 1 w.l.r. 1037; r. v. police commissioner, ex p. blackburn [1973j qb. 241; r. v. greater lonmn council, ex p. blackburn [1976] 1 w.l.r. 550. 86. [1982j a.c. 617. 87. ibid., per lord wilberforce at p. 633; lord fraser at p. 647; lord roskill at p. 662. 101 the denning law journal principle. but, even then, there will be a need for jurisdictional limitations; for, as lord denning said in the peachey property case,88 a 'busybody' should not be entitled as of right to invoke the judicial process. whether or not the united states courts would be able to hold that such a person could not provide "vigorous advocacy" has yet to be decided. however, notwithstanding the valuable work already undertaken by the supreme court, when the courts come to examine these issues the questions to be resolved will be the fundamentally perennial ones: which types of dispute are suited to judical resolution? and when is an individual entitled to invoke the judicial process? these will always remain the raw issues of the standing question, and perhaps it is not desirable that one solution, fixed for all time, should ever be realized; for each generation should be free to choose the values which its society will cherish and to decide how these values will be protected. 88. supra n. 84. 102 civil proceedings in a beleaguered society the rt. hon. lord lowry * when looking for a subject for the child & co lecture, i thought it had better be one on which i could pose as some kind of authority. that narrowed the field considerably, but also made it a safer one in which to wander. many people have already their own ideas about the diplock courts (where they got some of those ideas from i could not pretend to say), and i have had to express my ideas on them to two lord chancellors and seven secretaries of state in the past fifteen years, so i felt that it might be wiser and more profitable this time to consider the impact of the "troubles", as they are euphemistically called, on civil proceedings in northern ireland. inevitably many of the examples will be cases in which i have been involved. this reminded me in a salutary way of a remark made by a man who was my friend, the late judge conaghan, qc., when four of us, then relatively young junior counsel, were getting ready to have lunch one friday: "and now", he said, "for another story of which i am the hero." that, i am afraid, accurately describes, unless one is very careful, about ninety per cent of legal and golfing reminiscences; therefore i must be careful. sir john ross, the last lord chancellor of ireland, published one book of reminiscences and threatened another. there was an unaccountable delay, but the attorney-general, denis henry (who was our first lord chief justice), thought of the solution. "i am told", he said, "that the compositor has run out of capitall's." neither i nor my brethren, much as i admire them all, are the heroes of this story. i am confident that our judicial brethren in england and wales and in scotland would cope equally well with our unusual problems if called upon. my object is simply to show how the courts have reacted to an extraordinary situation. for nearly eighteen years the queen's peace itself has had to meet in a part of her kingdom a vigorous and continuous challenge, and the queen's justice has had to be administered during that time without fear or favour. in such circumstances the rule of law is under threat. in a civil war situation cicero proclaimed, "inter anna silent leges." as the trial judge in r. v. gibney and others! i remembered this and said: • lord chief justice of northem ireland. the child & co london lecture 1987, delivered in the inns of court school of law and reprinted by kind permission of lord lowry and child & co.. 1. [1983] '13 n.i.j.s. 109 the denning law journal " 'amid the clash of arms the laws are silent': so cicero exclaimed over 2000 years ago. during the greatest conflict of our history lord atkin2 bravely ventured to contradict this assertion. now, too, peace, order and society itself are under fierce and constant attack and that is why we must remember lord atkin's famous dictum; 'in this country, amid the clash of arms the laws are not silent. they may be changed, but they speak the same language in war as in peace'." i continued: "this war is being waged by organisations which style themselves armies and observe military procedures, but it has not invaded, and will not be allowed to invade, the courts. the rule of law has prevailed and will continue to prevail there. we will accept but one standard of proof in criminal cases, namely, proof beyond reasonable doubt. this is a concept difficult enough to describe, but easy for an honest man to recognise, which brings to criminal adjudication, whether by a jury or by another tribunal, a certainty and a finality which can be absent from civil proceedings. it is a statement of the obvious that maintaining the rule of law means deciding cases according to law, and the paramount law in criminal cases is that guilt cannot be established save by proof beyond reasonable doubt." you may recall that toward the end of 1971, as a result of complaints in northern ireland, a committee of privy counsellors was appointed to consider "whether, and if so in what respects, the procedures currently authorised for the interrogation of persons suspected of terrorism and for their custody while subject to interrogation require amendment." lord gardiner, famous as a champion of the rule of law, submitted a minority report in which he stated that unauthorised procedures of interrogation had been used which were illegal and would continue to be so unless the law was amended, pointing out at the same time that it was not unnatural for the royal ulster constabulary, who had used the procedures, to assume that the army had satisfied themselves that the procedures which they were training the police to employ were legal. i do not need to discuss the report,3 which was submitted on 31st january, 1972, but i have been struck by the coincidence with my judgment in r. v. gibney inherent in the words used by lord gardiner at paragraph 12, p.15: "the situation in northern ireland is one in which members of the irish republican army are conducting a campaign of terror which includes brutal murder, arson, the use of explosives against innocent men, women and children and outrages of all kinds. there is virtually a war going on between 2. in liversidge v. anderson [1942] a.c. 206, at p.244. 3. cmnd. 4901. 110 civil proceedings in a beleaguered society the government of northern ireland and the irish republican army and in this conflict the lives, not only of innocent civilians but of the police and army, are at stake in circumstances of appalling difficulty for the members of those forces whose courage, resolution and behaviour are all so well known." the comparison between lord gardiner's clear perception of the crisis and his ultimate opinion of the methods used to meet it is, i submit, based on the rule of law, which is the mark of a civilised society. that rule involves a respect for impartial justice. it protects the weak against the strong and the individual against the state. it is most at risk, and therefore most in need of protection, when the state itself is in danger. you may ask whether the rule oflaw ought to be upheld at the risk of the safety of the realm. my answer is, first, that the judges are sworn and obliged to judge according to law. if doing that truly endangers the state, then the law must be changed. but conflict between the rule of law and the public good is more apparent than real. a heavy price can be paid, in terms of stability, if the state itself, through its judges, spurns the rule of law. when i turned to the northern ireland law reports and the northern ireland judgments bulletin (the latter founded on an idea which my predecessor, lord macdermott, imported from cyprus), i was surprised by the number of cases which can be said to arise from the troubles. i shall have to be selective, dividing the subject and picking a few examples. i really cannot in the space available afford a consideration of all the interesting legal points arising from these cases. i plan to look first at actions by individuals against the executive for false imprisonment, assault and similar torts, then at claims for compensation for criminal injuries to the person and to property. next i shall notice the impact of emergency powers, apart from criminal trials. after that, i shall invite you to look at experience in prison, both disciplinary and administrative, and will pass from there to the political mainly local government scene. after that i wish to say something about judicial review, which has been widely resorted to, as you will presently find out. and finally, i shall try to extract some general conclusions from what i have said. my division of topics is arbitrary. there must be overlapping. and, lest you should suppose that the courts are mainly concerned with the kind of cases i am going to talk about, it may be no harm to state that personal injury claims are still the main diet of the queen's bench division and that the county court, chancery and family division business continues with ever-increasing volume, to say nothing about ordinary criminal work, in the volume of which hitherto we have not yet caught up with the mainland. i would first explain that we have three lords justices and six puisne judges, as well as myself, in the supreme court. each is available for every kind of work in addition to his first commitment and all sit in the crown court. there are thirteen county court judges. of these one is chief social security commissioner, another is president of industrial tribunals and a third is president of the lands tribunal. 111 the denning law journal as well as exercising civil jurisdiction at first instance, they hear appeals from magistrates and in that capacity are subject to judicial review and to appeal by case stated. they are also judges of the crown court and, in accordance with my directions given with the authority of the lord chancellor, try all kinds of offences except murder. there are seventeen resident magistrates and a number of deputies. all are barristers or solicitors, like stipendiaries in this jurisdiction. 1. actions against the executive i deal here mainly with claims for false imprisonment and assault, including trespass to the person by shooting, in proceedings commenced by writ of summons or in the county court by civil bill. in the high court the plaintiffs are under our law (s. 62 (1)(d) and (e) of the judicature (northern ireland) act 1978 and its predecessor, the act of 1877) still entitled to a jury, but they have set down nearly all the cases for trial by a judge alone, which some people may regard as an interesting commentary on the judge-alone diplock courts. the facts in these cases, often complex and hotly disputed, as well as the legal issues and, where appropriate, the amount of damages and the question whether aggravated or exemplary damages should be awarded, have therefore by consent almost always been entrusted to the determination of a judge. there are all kinds of action. let me give you one example, walsh v. ministry of deftnce.4 it involved no legal points and was a case of mistaken identity. the plaintiff, a young schoolteacher, was arrested by the army at 6.30 a.m. at home, taken to a police station, where she was kept for two hours. she was released when it seemed that a mistake had been made, but received no explanation, reassurance or apology and she sued for damages alleging that she was "unlawfully detained and kept against her will in degrading circumstances, where she was assaulted, subject to trespass on her person, humiliated, degraded and wrongfully and falsely imprisoned." as i said in my judgment, this was in technical language an accurate description. the defence denying the unlawfulness of the arrest was persisted in up to the morning of the trial and then abandoned. having set out the facts and my comments, and having referred to rookes v. barnard5 and to a decision by kelly l.j. in a similar case, lavery v. ministry of deftnce, 6 i concluded: "the conduct of the defendant's agents at the briefing (and, by unavoidable inference, before it) renders the defendant liable to pay exemplary damages under lord devlin's first common law heading for oppressive and arbitrary action by the servants of the government. i wish to make it clear that there is no evidence that private moran or any other soldier in the patrol behaved badly or that anything gratuitously oppressive was done at springfield road: 4. [1985] 4 n.lj.b. 1. 5. [1964] a.c. 1129. 112 6 [1984] 7 n.1.j.b. civil proceedings in a beleaguered society the fault, and it was a grievous fault which infringed the liberty of an innocent subject, lay with higher authority." i awarded £4,000, to include exemplary damages. recently, in hamilton v. chief constable7 hutton j. awarded £4,000 for an assault in a police station. the case required disputed facts to be elucidated and the judge concluded: "there is nothing in the present case to suggest that the assault by the constable was sanctioned or connived at by any police officer senior to him, but the judgment of kelly l. j. in lavery v. ministry of defence makes it clear that exemplary damages can be awarded against the body or person vicariously liable under common law or statute for an isolated and un sanctioned assault carried out by a soldier or police officer of junior rank, where the nature of the assault and the surrounding circumstances are such that the court considers that exemplary damages should be awarded." many other allegedly similar cases, i should add, have been decided in favour of the defendants. there are two important cases in which the ministry of defence was sued. in farrell v. ministry of defence8 the army got wind of what was believed to be a plan to blow up a bank in newry. they posted snipers on rooftops with a view of the bank. three men approached the bank and looked to be trying to rob two men who were putting a money bag in the night safe. the soldiers gave evidence that they challenged the three men, who ran away; they then opened fire and killed the three men. their right to shoot depended on section 3(1) of the criminal law act (northern ireland) 1967, which is identical with the corresponding provision in force in england: "3(1) a person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large." the widow (by then mrs farrell) of one of the deceased (named mclaughlin) sued the ministry for damages and the case was tried with a jury which was asked, and answered, questions as follows: "1. did the soldiers fire because soldier a suspected with reasonable cause (a) that the husband of the plaintiff and two other men had attempted to place an explosive bomb or an incendiary device in or at the provincial bank, and (b) that such explosive bomb or incendiary device would endanger life? answer: (a) yes (b) yes 7. 1986 unreported. 8. [1980] n.r. 55. 113 the denning law journal 2. if the answer to questions l(a) and l(b) is 'yes', was it reasonable in the circumstances (including the reasonable suspicion of soldier a) in the prevention of crime for the soldiers to fire to kill: answer: yes 3. if the answer to questions l(a) and l(b) is 'yes', was it reasonable in the circumstances (including the reasonable suspicion of soldier a) in effecting the lawful arrest of the three men for the soldiers to fire to kill? answer: yes 4. did the soldiers fire after soldier a had twice shouted at the three men to halt? answer: yes 5. when the barman mr o'neill was at the night safe in the front wall of the provincial bank did the husband of the plaintiff and two other men attempt to rob him of the money he was going to place in the night safe? answer: yes 6. was the shooting entirely out of proportion to the occasion? answer: no 7. was there fault on the part of the husband of the plaintiff which contributed to his death? answer: yes 8. if answers to questions 2 and 3 are 'no' and answer to question 7 is 'yes', what percentage reduction should be made in the damages having regard to the responsibility of the plaintiffs husband for his own death? not answered (% reduction)." the effect of the answers was a verdict for the defendant and the plaintiff appealed. we ordered a new trial, being dissatisfied with the form of the questions and certain parts of the judge's charge, but the ministry appealed to the house of lords, which restored the verdict. having regard to the pleadings and the course of the trial, it does appear that we were wrong to lay so much stress on the need to consider the question of negligent planning, which made it inevitable that escaping men could not be stopped except by shooting them. looking back, i think that our fault was to make a better case for the plaintiff than she made herself a dangerous course, having regard to the duty of the plaintiff to give the defendant notice of her case. i therefore recognise the force of viscount dilhorne's observations on this part of the appeal. because it was a jury trial, there were available no findings of fact, and this did not help the plaintiff. counsel for the 114 civil proceedings in a beleaguered society ministry conceded at the trial that the soldiers would not have been entitled to shoot if their object was to prevent the escape of attempted robbers. although she had lost, mrs farrell found a means of taking the government to strasbourg, where they agreed to pay her quite a lot of money. lynch v. ministry of defence,9 tried by hutton j. without a jury, was a more clearcut case on the facts and the law, which was again section 3(1) of the 1967 act. the plaintiff, driving a car at night in belfast, failed to obey a soldier's red light signal to stop. he was fired on and hit, crashed his car, was badly injured and sued the ministry. the defendant in these circumstances had to justifythe act of firing, and the learned trial judge, although he rejected the reasonableness of shooting to effect an arrest, accepted that the soldiers in firing were using reasonable force in the prevention of crime. he therefore found against the plaintiff and the judgment was not appealed. the outline facts were agreed but all the other facts were disputed. two points are noteworthy. first, criminal cases from northern ireland were referred to, in which section 3(1) had been canvassed, including the decision of the house of lords in attorney-general jor northern ireland's reference. 10 secondly, the passages which the learned trial judge cited at page 229 from the speech of lord diplock and from the judgment ofjones l.j. in theattorney-general's reference and at page 230 from my judgment in an attempted murder case, r. v. mcnaughton, ii tend to show that the crime which is to be prevented need not be imminent in order to make the shooting reasonable. some cases where false imprisonment was alleged made necessary the interpretation of the enabling statute. an example is mckee v. chief constable .for northern ireland,12 where the house of lords, reversing a majority decision of the court of appeal, restored the judgment of the trial judge (macdermott j.) and held that the power to "arrest without warrant any person whom he suspects of being a terrorist" means that a constable makes a lawful arrest if he has an honest, though not necessarily a reasonable, suspicion that the person arrested is a terrorist. the house approved the interpretation by mcgonigal j. of a special powers regulation in in re mcelduff,13 a habeas corpus application in which the arrest was held invalid for other reasons. the remedy of habeas corpus has been freely resorted to. i refer to in re close, 14 in re murph/5 (where o'donnell j. held detention of young persons to be lawful but stated that they ought to have conditions no less favourable than those of convicted young persons serving a sentence) and ex parte lynch,16 where i held that the treatment and conditions of detention accorded to a person lawfully 9. [1983] n.!. 216. 10. [1976] n.!. 169; [1977] a.c. 105. 11. [1975] n.!. 203. 12. [1985] 1 all e.r. 1. 13. [1972] n.!. 1. 14. [1972] n.!. 27. 15. [1973] n.!.].b. nov. 16. [1980] n.!. 126. 115 the denning law journal detained do not touch on the lawfulness of that detention and do not therefore give rise to the remedy of habeas corpus. one of the most interesting habeas corpus applications was quigley v. chief constable, ruc,17 where the sister of linda quigley, whose husband was due to give evidence as an accomplice (or "supergrass") against several accused charged with terrorist offences, applied for a writ of habeas corpus directed to the chief constable to produce linda quigley before the queen's bench division of the high court. she had disappeared with her husband and children from their home in londonderry and later appeared at londonderry recorder's court to pursue a civil claim of her own. her solicitor deposed that mrs quigley consulted with him before court in a place guarded by police and that she expressed a wish to meet relatives who were at the courthouse, but that at the end of the case she left with the police. the respondent's affidavit stated that mr quigley had been taken to a place of safety because terrorists were looking for him, that mrs quigley had gone with him voluntarily, but, while this might well be right, the court considered that a prima facie inference of restraint on mrs quigley existed. the next stage is described in in re quigley. is the respondents made a return to the writ stating that mrs quigley was livingwith her husband and children and that they were receiving police protection by their own wish. "she was free to go where she wished", and the respondents could not therefore produce her body. the applicant sought to impeach the return, alleged contempt of court and cited section 3 of the habeas corpus act 1816. the court held the return good but inquired in accordance with section 3, and then heard mrs quigley in chambers. sitting finally in open court again, hutton j. declared that the facts set forth in the chief constable's returns were true and concluded:19 "after having appeared before me in chambers mrs quigley had a meeting with her sister and other relatives here in the royal courts of justice, and at her own wish she is going to rejoin her husband and children." 2. criminal injuries criminal injury claims for injury to the person and damage to property have been known to the irish courts since 1836. the cost of a successful claim was once borne by county and district rates and now falls on central funds, which is particularly logical where terrorism is concerned. the claim is made to the secretary of state, from whom there is an appeal to the county court and thence to the high court. a case can be stated by either court to the court of appeal on a point of law. the relevant statutes lay down the form and time for application and embody restrictions on the right to recover which are dictated by the terrorist background. someone who has been involved in terrorism cannot recover; a 17. [1983] n.r. 238. 18. [1983] n.r. 24s. 19. p.2s7. 116 cml proceedings in a beleaguered society requisite condition is that full disclosure of facts known to the applicant is made in his application; and, even after an award is made (either by himself or by a court), the secretary of state can withhold all or part of the compensation pending the answers to such reasonable requests (and the reasonableness of a request is justiciable) as the secretary of state may make for further information. the reports are full of these cases and you can imagine the questions of law and fact which must be resolved in order to see what the statutory provisions mean and whether they apply. authorities in the law of tort are called in aid on questions of causation and damages, and decisions in criminal injury cases are in their tum applied in the field of tort. not wishing to venture beyond this brief outline, i shall mention only one case, in which the court of appeal adjourned a case stated in o'dowd v. secretary of statl-° until the house of lords had given its decision in mcloughlin v. o'brian.21 this enabled us to decide with confidence in favour of the applicants, who had suffered nervous shock when three close relatives were murdered and another was wounded in a shooting incident, and the applicants had arrived on the scene shortly afterwards. as well as being concerned with nervous shock, we had to consider the meaning of the words "directly attributable", and the case is a good example of the interaction between tort and criminal injury cases. having derived much assistance in o'dowd from mcgregor v. the board of agriculture jor scotland,22 i cannot resist saying how much more help we could obtain from the session cases, had we the time and the industry to look more often in that direction. 3. emergency powers i shall treat emergency powers by referring to three cases under the civil authorities (special powers) act (northern ireland) 1922. the first, r. (hurne) v. londonderry jj.,23 is of some legal and historical interest and i regard it as an example of a collision between the rule of law and the apparent safety of the state (not by reason of its own facts but because of the wide effect of a decision against, the executive). the case took the form of an application to the divisional court for an order of certiorari to quash a conviction by the magistrate for infringing a regulation under the special powers act, as i shall call it, which made it an offence for a person in a group of three or more persons not to disperse when ordered to do so by, among others, a member of her majesty's forces. the main ground for seeking to quash the conviction relied on the fact that, unlike the parliament of the united kingdom, the northern ireland parliament operated under what could be called a written constitution, consisting of sections 4 and 5 of the government of ireland act 1920, with the result that it was possible for an act of parliament to be ultra vires; a regulation could also be ultra vires, not only for being outside the 20. [1982] n.!. 210. 21. [1983] 1 a.c. 410. 22. [1925] s.c. 613. 23. [1972] n.!. 19. 117 the denning law journal scope of its parent act, but also for inconsistency with sections 4 and 5 of the 1920 act. the defendants were the well-known politican, mr john hume, and four other members of the sdlp who, it seems, had decided to test the validity of the unpopular special powers regulations by sitting on the footpath and refusing to be moved on by the army. the point of the case was that regulation 38 conferred certain powers on members of the armed forces, whereas section 4 of the 1920 act forbade the northern ireland parliament to make a law "in respect of' what were called reserved matters, such as the crown, taxes, foreign relations and "the navy, the army, the air force etc. etc.". in the circumstances prevailing then and since this challenge raised a much more serious issue than the right of a soldier to move on a small group of people who were doing no real harm, because there were in existence other special powers regulations which gave soldiers a power to stop and search at roadblocks and elsewhere and also a power of arrest, which had been exercised many times already. with the activities of the ira at full blast, the whole security system was at risk. the result turned on the interpretation of the words "in respect of", and crown counsel, now carswell j., exercised his considerable intellect and ingenuity in a vain effort to put a gloss on the ordinary meaning of that phrase. we held the regulation to be ultra vires and quashed the conviction. as soon as we had given judgment, the northern ireland act 1972 went through all its stages in both houses at westminster in one day, declaring the parliament of northern ireland to have, and always to have had, power to make regulations of this kind. the court did not resent this, nor, i believe, could anyone else: it was a proper remedial exercise, since there was in the regulations nothing to object to except their invalidity. the legislation was frankly, but necessarily, retrospective. merely to confer immunity for past acts would not have been enough. therefore, when in r. v. gonnan24 a man who had been arrested under special powers regulation 11 was charged with escaping from lawful custody, as the trial judge i held that regulation to be valid in spite of hume's case and because of the validating 1972 act; the rule of law does not invariably side with the citizen. my second example of emergency powers is r. (secretary of state) v. recorder of belfast,25 which raised the question whether various orders made by the minister of home affairs between october 1969 and october 1970 obliging the owners of licensed premises to close were "aas ... involving interference with private rights of property". if so, compensation was payable under section 11(1) of the special powers act. if not, the owners contended, the orders were invalid because the restriction on opening hours amounted to a "taking" of their property contrary to the general prohibition against taking property without compensation in section 5 of the 1920 act. the recorder of belfast held in favour of the owners and ordered an arbitration but the court of appeal, affirming gibson]., held that the word "act" in section 24. [1974] n.1. 152. 25. [1973] n.1. 112. 118 civil proceedings in a beleaguered society 11(1) applied only to physical steps and not to an order. we further held that the restriction on opening was not a taking within the meaning of section 5. the case was a difficult one and splendidly argued, and i was both surprised and sorry that the large, and presumably wealthy, body of owners did not appeal to the house of lords. i feel that the loser in my third emergency powers case was most unfortunate. it was r. (mccreesh) v. county court judge forarmagh, 26 in which the applicant owned a garage and service station in newtownhamilton which catered for heavy goods vehicles on a main route between the republic of ireland and great britain via the port of lame. the army erected security barriers on all streets into newtownhamilton so that passing traffic was diverted, but the applicant still had access from his premises to the street. the applicant claimed compensation under section 25(1) of the northern ireland (emergency provision) act 1973, which was the successor to section 11(1) of the special powers act, but in the court of appeal, reversing gibson l.]., who had reversed the county court judge oudge babington qc.), we held that, although the applicant had a special and individual interest in the public right to the relevant part of the highway and would, apart from statute, be entitled to sue for damages, yet there was no interference with his private right of direct access to the highway, and therefore there was no right to compensation under section 25(1). 4. prisons: disciplinary and administrative aspects. looking first at the disciplinary side, it is generally accepted that judicial review will lie to a board of visitors. a number of prisoners have contended that they are entitled to legal representation at a board hearing absolutely, and not just at the board's discretion according to the criteria in ex parte tarrant,27 a decision of the divisional court which we have followed with no misgivings. indeed the convention on human rights seems to point the same way. article 6(3) provides: "every person charged with a criminal offence has the following minimum rights (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice require." the house of lords has in in re hone28 given leave to appeal from our court of appeal on this question of absolute right and we shall all await the outcome with interest. i enjoyed reading the whole of sir patrick neill's lecture29 and in particular i was cheered by his joining issue on page 7 with your court of appeal's decision in 26. [1978] n.r. 164. 27. [1984] 1 all e.r. 799. 28. 1986 unreported. 29. the child & co lecture, 1985. 119 the denning law journal r. v. deputy guvernor of camphill prison, ex parte king30 to the effect that a prison governor's award cannot be the subject of judicial review. our court of appeal, although mindful of the respect which we always entertain for the decisions of your court of appeal, went the other way in in re mckiernan,31 much attracted by the observations of kerr l. j. in the divisional court, but not then aware of the view which sir patrick had expressed in his lecture. i understand that ex parte leech (unreported) will provide an opportunity for the house of lords to consider the question. on the administrative side, we have corne across a few attempts to query by judicial review executive decisions by the governor and have also had an application32 to quash an order by the secretary of state forbidding mr mccartney, who is serving a sentence of life imprisonment for a terrorist offence, to receive a visit from an elected sinn fein councillor. i heard and refused the application and in doing so made an observation the bearing of which may be appreciated when i pass to the political cases: "it is natural to ask why the respondent's decision should be deemed reasonable when this court has held that members oflocal authorities cannot lawfully take steps to prevent sinn fein councillors from participating in local government business. the difference is that sinn fein councillors are, in the present state of the law, entided as individuals to take their seats and that the other members of the council have no legal power to prevent them from doing so, whereas the respondent here has a right under rule 58(1) to regulate visits to prisoners according to the discretion conferred on him by that rule, so long as the discretion is reasonably exercised within the meaning of the wednesbury case. the anomaly is explained by the absence of a statutory power in the one case and its presence in the other." 5. politics and local government sinn fein is taken to be the political wing of the ira and accordingly the presence of its members on elected bodies has been gready resented. this has caused unionist councillors to try to exclude from the work of the council sinn fein councillors by appointing a special committee consisting of all the members of the council, except the two sinn fein members, to deal with all the council's functions, with the exception of making a rate, borrowing money and acquiring, holding or disposing of land, being the matters expressly excepted by statute from the powers of a committee. hutton j. held, with the aid of authority, that he could take judicial notice of the policy and aims of sinn fein.33 he continued: 30. [1985] q,b. 735. 31. [1985] 6 n.l].b. 6. 32. in re pius mccartney, 1986 unreported. 33. [1985] 7 n.lj.b. 22. 120 cml proceedings in a beleaguered socie1y "therefore i take judicial notice of the facts that the policy and aims of sinn fein are to take power in northern ireland with a ballot paper in one hand and an armalite in the other, that sinn fein gives unambivalent support to the 'armed struggle', which is the euphemism used by sinn fein to describe terrorist murders and other violent crimes committed by the provisional ira, and that when the elected representatives of sinn fein take part in the normal work of an elected council this is just one plank of their policy, th~ other plank being the unambivalent support of murder and other acts of terrorist violence committed to overthrow democratic government in northern ireland." then, having considered all the resolutions aimed at excluding sinn fein from the council's deliberations and finding that they complied with the test of reasonableness posed by associated provincial piaure houses ltd. v. wednesbury corporation,34 and also having noted an elected assembly's power to protect itself, as described by the earl of selbome in barton v. taylor,35 he concluded that the council had no power to exclude members by reason of the objects of their organisation and that the resolution to appoint a committee was ultra vires because the statutory power to do so could not validlybe exercised for a purpose other than that for which the power was created. in the course of his judgment he said (at pas): "i consider that the decision whether or not members of sinn fein should be prevented from sitting as councillors, because it is the policy of sinn fein to support terrorist murder and violence, gives rise to an issue of great general importance and is a decision to be made by the government and parliament and not by individual councils. i am confirmed in this opinion by the consideration that, if an individual council has powers by a majority vote to exclude sinn fein councillors, it appears that, depending upon the strength of the various political parties in the individual council chambers, sinn fein councillors would be excluded from some councils in northern ireland but not from others." carswell j. had to pronounce on a further effort by craigavon council in in re french and others' application.36 the unionists hit on the idea of requiring a declaration against violence as a prerequisite of sitting on the council, but this offended against the plain words of section 21(1) of the northern ireland constitution act 1973 which, as the council argued and as the judge recognised, was enacted for a very different purpose. again, carswell j. considered that the challenged resolutions would have passed the wednesbury test, if that had been the problem. he made this observation:37 34. [1948] 1 k.b. 223. 35. (1886) 11 a.c. 197,203. 36. [1985] 7 n.i.].b. 48. 37. ibid., p.68. 121 the denning law journal "i feel that i should state in conclusion that is has been my concern throughout this matter, sitting as a court of law, to deal purely with the legal issues arising from it. i can only declare and apply the law as in my judgment it presently stands, whether that state of the law may be regarded by any section of the population as satisfactory or deficient. i do not propose to express any opinion on whether the law should be amended. that is within the domain of parliament and her majesty's government, and i do not wish to be taken to express or indicate any views upon such a matter." in in the application of christopher neeson38 the court of appeal approved the reasoning in curran's case and french's case and, for similar reasons, was obliged to hold bad a new idea, which was to create four different committees, each comprising all the council members except sinn fein. carswell]., having quoted the description of sinn fein which i reproduced above, went on in french's case: "notwithstanding these facts which are, in my view, undeniable and universally known, sinn fein has been permitted to operate as a political party without being proscribed, and that being so, it has to be regarded by the law as a legitimate political party whose members are legally entitled to stand for election and take their seats as councillors." in the court of appeal i put it another way: "like carswell j. i adopt what hutton j. said in curran's case, but i do not subscribe to the view that sinn fein has to be regarded as a lawful organisation (or by necessary implication as a 'legitimate political party') just because it has been allowed since 1975 to operate as a political party without being proscribed. that is a different thing from saying, in the present state of the law, that individual members of sinn fein, if not otherwise disqualified, cannot legally stand for election and take their seats as councillors, if elected; but they are entitled to do so despite their membership of sinn fein and not because of it." one can see from these cases, and also appreciate, the difference in the result from that obtained in relation to the administrative ban on prison visiting. the unionist protest against the hillsborough agreement signed on 15th november, 1985 ("the anglo-irish agreement") has also involved the courts. belfast city council, as a protest, adopted a policy of adjourning its meetings and by resolution delegated all its functions (except three which there was no power to delegate) to the town clerk. mr cook, an alliance councillor, obtained from hutton j. a declaration that the council's resolutions were unlawful and an order of mandamus to compel the council to resume normal working: in re cook and others' application.39 the court of appeal affirmed the relief thus granted and, 38. 1986 unreported. 39. [1986] i n.i.j.b. 43 and 89. 122 cml proceedings in a beleaguered society when the council did not comply, the applicant issued contempt proceedings which resulted in the council's being fined £25,000. similar proceedings regarding other district councils have reached various stages of development and it would not be right for me to comment on pending litigation. as hutton]. observed when dealing with applications against a number of councils: "the resolutions were passed as part of the political protest against the angloirish agreement. this court is in no way concerned with the suggested merits or demerits of the anglo-irish agreement; the court is only concerned to decide the issue whether or not the resolutions which are now challenged by the applicants are lawful or unlawful. as the learned lord chief justice stated in delivering the judgment of the court of appeal in cook's case at p.103, it is the duty of the court 'to decide the point at issue according to law and without fear or favour, affection or ill-will'." the learned judge also recalled other observations which i made in that case (at pp.92-3): "what, however, the council is not entitled to do is to refuse or deliberately neglect to discharge its statutory obligations as the elected local authority for the belfast district and thereby to deprive the ratepayers and citizens of belfast of the council's services. nor is it entitled to carry out development in the shape of the banner (which is an advertisement within the meaning of the planning (control of advertisements) regulations (northern ireland) 1973) without first having obtained planning permission. these are the unlawful acts of which the applicants have complained. it is clear that the real dominant purpose of the majority of the council in passing and implementing the resolutions complained of was to oppose the angloirish agreement but, however legitimate a political objective this is thought to be, its legitimacy could not justify or validate the unlawful conduct to which we have referred, and the object of the majority of the council (or even hypothetically of the entire council) cannot with impunity be pursued by the unlawful means which the council, by a majority, has chosen to adopt ... the council's decision was from the local government standpoint, and we emphasise those words, (the local guvernment standpoint) the negation of all the principles according to which local government is carried on through discussion and debate among elected representatives, culminating in decisions on a wide variety of important matters. to say this is not to call in question the ability of the town clerk; but to leave all these matters to a paid official, no matter how competent, is simply not the way to carry on local government. it is in fact completely unreasonable in the wednesbury sense and (we emphasise these words again) in the local guvernment context. as for this step being a way of pursuing a lawful object we hold that it is a wholly unreasonable and therefore unlawful means of pursuing that object, 123 the denning law journal since it undermines the accepted principles of local government in the way that we have pointed out. to put forward section 129 as a shield against the accusation of wednesbury unreasonableness does not prevent the decision to refrain from activity and to delegate everything to the town clerk which could lawfully be delegated from being unreasonable. it is the activity of the elected representatives which is the essence of local government, as distinct from giving the whole matter into the hands of the town clerk to make all the decisions and transact all the busines of which he is legally capable." i do not have to emphasise the wide extent of the discretion which the court is obliged to exercise when it comes to the question of enforcement and considers the impact of its orders on individual councillors. 6. judicial review general points you will have noticed the liberal resort which parties have had to judicial review in order to attain their object of challenging all kinds of decisions and adjudications. the same thing has happened in england and i am prompted to make a few general points. you will recall that in r. v. northumberland compensation appeal tribunal, ex parte shaw 40 the divisional court and the court of appeal rediscovered the weapon of quashing a decision for error of law on the face of the record (and not simply for excess or absence of jurisdiction). this was a weapon the existence of which had been denied by a very distinguished court of appeal in racecourse betting control board v. secretary of state for air. 41 in r. v. crown court for knightsbridge 42 griffiths l. j. again emphasised that for over a hundred years the use of certiorari to quash a decision for error of law on the face of the record fell into disuse, pointing out that, so far as criminal jurisdiction was concerned, this could be largely attributed to the short form of conviction introduced by the summary jurisdiction act, 1848. the northumberland case came as a surprise to the bench and bar in ireland, both north and south, since the weapon referred to had never become rusty, but continued to be wielded vigorously throughout the period in question. our bible on certiorari was r. (martin) v. mahon/4 in which gibson ]., a master of the common law, said:44 "certiorari lies (a) where there is want or excess of jurisdiction when the inquiry begins or during its progress; (b) when in the exercise of jurisdiction there is error on the face of the adjudication; (c) where there has been abuse of jurisdiction (as by mis-stating the complaint, esc., or disregard of the essentials of justice and the conditions regulating the functions and duty of 40. [1951] 1 k.b. 711; [1952] 1 k.b. 338. 41. [1944] ch. 114. 42. [1982] qb. 304 43. [1910] 2 lr. 695. 44. ibid., at p.731. 124 cml proceedings in a beleaguered society the tribuna!); (d) where the court is shown to be disqualified by likelihood of bias or by interest; (e) where there is fraud." the case is one of historical interest, because lord o'brien l.c.j. took the opportunity to assemble a divisional court of eight judges in order to extirpate the heresy committed by palles c.b., (sitting in the exchequer division in 1888 and differing from a decision of the queen's bench division on the same point in the same case two days earlier) when he ruled that, notwithstanding the refusal of certiorari to quash a conviction for lack of evidence, habeas corpus would issue to release the convicted prisoner. we have long memories in ireland and not only in politics. but the northumberland case did not introduce the revolution. that happened in 1977 when a procedure known as judicial review was introduced by order 53. for the first time all or any of the remedies of certiorari, mandamus, prohibition, a declaration and damages could be claimed together in proceedings on the crown side; interrogations could be administered and discovery obtained and oral evidence and cross-examination of a deponent on his affidavit were made more accessible. but no new substantive remedy was provided, except the power in rule 9(4), when certiorari was sought, to remit the matter to the lower deciding authority. this power was confirmed by section 31 (5) of the supreme court act 1981. of course, the changes encouraged the use of judicial review because the new procedure provided a more effective way of reaching the goal. i refer my readers to lord denning's observation in the court of appeal reported in o'reilly v. mackman45 and to lord diplock's in the same case.46 the 1977 innovations followed recommendations by the law commission. almost the same reforms were discussed in the report of the committee on the supreme court of judicature of northern ireland (1970 cmnd 4292, paragraphs 103-116) and these came to fruition in the judicature (northern ireland) act 1978, ss. 18-25 and a new order 53 which came into operation on 1st january, 1981. apart from the new procedural advantages, a homely way of describing the change is to say that, except for your section 31 (5) and the new possibilities introduced by our sections 21 and 25, we started with five golf clubs and can now put them in one bag but we cannot play any shots with them which we could not play before. but there is an atmosphere of change, and that atmosphere has been promoted by the new procedure. in the northumberland case denning l. j. stated:47 "it will have been seen that throughout all the cases there is one governing rule: certiorari is only available to quash a decision for error oflaw if the error appears on the face of the record." 45. [1983] 2 a.c. 237, at pp.253-256 46. at pp.277-282. 47. at p.351. 125 the denning law journal be it noted that this was said in a case where the lower deciding authority was not a court but a tribunal. other things have been said more recently which, i feel, must be very deliberately weighed, having regard to sir patrick neill's statement that since 1977 "the flow of decided cases has accelerated at a dizzy pace." if aljolson were still here, he might exclaim "you ain't heard nothing yet!" i can see merit in approaching courts and other deciding authorities differently, so far as legal error within jurisdiction is concerned, but you will not expect me to discuss such a big subject in my present context. but, what is very important, no matter how orthodox the proposed remedy, is to decide what constitutes the record. many of you will be familiar with the helpful discussion of this point by griffiths l. j. in the knightsbridge crown court case already mentioned. here again i would like to reserve my options for the moment. my feeling is that against the benefit conferred by the new light we must set the danger of being encouraged to ransack with a view to upsetting them all kinds of orders and decisions which until recently would have been regarded as invulnerable to attack by certiorari. and, on the question of unreasonableness, we must beware of relaxing the tests propounded by the court in wednesbury and by lord diplock in ccsu v. minister for the civil service. 48 lastly, we might reflect that it is much easier to obtain leave to apply for judicial review than it was to get a conditional order to quash. this, too, may have had an influence on some final orders which have been granted recently. 7. conclusion now let me try to sum up. you will have seen how easy it is, however apolitically one sets sail, to be engulfed in a whirlpool of politics. indeed that has ceased to be a novel danger in this country. therefore one needs plenty of ballast and ought to cultivate that preference which the late lord justice harman expressed49 for an upright posture. in his thoughtful and valuable collection of essays entitled the judge so lord devlin, discussing the aequum et bonum, the concept of justice according to the merits, as distinct from justice according to law, had this to say;51 "in the first place, justice according to law by imposing a norm also secures it. against the number of cases in which the law hinders the good judge from expressing the aequum et bonum, there must be put the number in which it prevents the bad judge from giving effect to idiosyncratic notions. for most of the law's history the public has looked upon it as a protection against corrupt or stupid judges. when the public thinks of the law as obstructive, it is a high mark of confidence in the judiciary. 48. [1985] a.c. 374, 410g. 49. in re goldschmidt [1957] 1 all e.r. 513, at p.5h. 50. a.v.p. 1979. 51. op. cit. at p.s8. 126 civil proceedings in a beleaguered society akin to this consideration is the thought that the law is a protection for the judges themselves. for the law does and ought to embody the collective wisdom. no judge who applies it can be accused of partiality. a judge who has to reach his conclusion without its guidance or who feels sufficiently confident to reject the guidance puts his personal reputation at stake." more recently lord mccluskey in his inspiring reith lectures has said: "law which is uncertain is bad in principle, even if the results in particular cases can be justified. when longstanding rules can be abandoned, when too many cases divide judicial opinion and can be decided either way, then the warning signals should be out." he further observed that in the law avoidable uncertainty is an evil, and unfettered judicial freedom of choice a vice. let me hark back to liversidge v. anderson,52 not for the purpose of challenging anything said in landmarks in the law, that splendid book by my much loved and admired friend lord denning, but in order to draw a moral. if there is a conflict between expediency and strict law, let the conflict be recognised, and if the law ought to be changed by parliament, then let it be changed and the sooner the better. some of the lessons i have learnt (but one's education is never complete) are the following: 1. the courts must be seen to act independently of the executive and not to be its servants and agents. 2. the courts should not make policy, particularly in a community where even people of goodwill are not agreed on the social and political means to salvation. 3. nor must we bend the facts or the law to achieve what looks like a fair result. "justice" achieved for one side by this method amounts to injustice for the other. 4. the rule of law must be seen to prevail. finally, a story of which counsel is not the hero but which illustrates both error on the face of the record and the conflict between law and the safety of the state. about 1949 i was resisting an application to quash a disjunctive conviction and had found an authority in the shape of r. (patterson) v. tyrone jj. 53 decided on 16th november, 1914 (the date is relevant) by a divisional court in which palles c. b. presided. the conviction recorded that the defendants "did unlawfully buy, detain or receive from soldiers or other persons acting on their behalf military property." there are dozens of cases like this, falling almost indiscriminately on either side of the line. the court had held that this conviction was not bad for uncertainty but, when i hopefully tendered my offering, black l. j. only said, "stealing military equipment was not a very popular offence during the retreat from mons." 52. [1942] a.c. 206. 53. [1915] 2 i.r. 162. 127 for the purposes of right to self-determination, how does one define people in context of kashmir 346 the denning law journal 2014 vol 26 pp 346-349 book review the legal duel: the trips agreement and drug access issues is the agreement actually the cunning manoeuvre it has been dubbed? kenya-india case studies dr brenda p mey, peter lang gmbh, frankfurt 2013 isbn 9783631628010 price £66.00 pb jae sundaram  the problem of access to medicines became acute with the entry of the trade-related aspects of intellectual property rights (trips) agreement in 1995 and caught a number of developing countries around the world, unawares. brenda p mey’s book on access to drugs issues is a study of this particular problem faced in two developing countries, namely india and kenya in the aftermath of the implementation of the trips compliant patent legislation. the two developing countries taken up for study are geographically located in two different continents, namely asia and africa with differing backgrounds and strikingly similar problems. dr mey’s book is a brainchild of her phd thesis of the same title, and a library reference work in every sense. it showcases her talents as a researcher and analyst on the subject matter of lack of access to medicines (in this case india and kenya) as a direct result from the implementation of trips agreement, which grants an extended patent protection to pharmaceutical and chemical products besides others. most developing countries and least developed countries were not fully aware of the consequences of an extended pharmaceutical patent protection sought to be introduced through the world trade organization’s (wto) multilateral trading system, and were hence not fully prepared when the trips agreement was implemented. india and kenya, who produce affordable off-patent generic medicines which in turn are widely used in frontline treatment of diseases like hiv/aids, malaria, etc., in other developing countries and least developed countries around the world. both india and kenya, as members of the wto were required to introduce trips  senior lecturer in law, law school, university of buckingham. email: jae.sundaram@buckingham.ac.uk. the denning law journal 347 compliant intellectual property legislation into their domestic laws, which was to impact their pharmaceutical industry, particularly their capacity to produce and export generic medicines. notwithstanding the impact on domestic manufacturing of generic medicines, the trips agreement had also seriously affected the access to affordable medicines for millions of people around the world due to a multi-fold increase of patented pharmaceutical products. the overall theme of the book focuses on the extent to which the ip rights regime (including flexibilities) introduced under the trips agreement has been used as a tool for enabling access to affordable medicines in india and kenya, and the effect of the trips regime on their domestic pharmaceutical industry. as the book is based on the author’s phd thesis, the groundwork is detailed and the questions raised to achieve the goals set out are clear and specific. the core objective of the book is to find answers to the question posed in the title through the examination of provisions relating to the protection of pharmaceutical patents contained in the trips agreement, and in the domestic patent law legislations implemented in india and kenya following the entry of the trips agreement. the key questions raised on the above theme are, i) what flexibilities are built into the trips to assist the developing country member states (especially to suit kenya and india), to enable them to pursue pro-public health policies geared at facilitating access to medicines; ii) what are the limits that prevent the application of these flexibilities at national levels; iii) how the obligation to promote and protect the right to health may limit the exploitation of the flexibilities contained in the trips agreement; iv) how have the two countries, kenya and india, exploited the flexibilities at national levels to promote cost-effectiveness in their health sectors, while still acting within the overall confines of the trips; and lastly v) what are the problems encountered by kenya and india in the effective implementation of the flexibilities. the use of a range of research methodologies including exploratory, descriptive, qualitative and quantitative methodologies, and interpretation and analysis of court cases, benefits the work. in particular, kenya’s and india’s experience with the actual implementation of the trips has been clearly brought out. the use of different methodologies has been attributed to the fact that the study is interdisciplinary and not limited to intellectual property rights protection. as a precursor to the case studies, dr mey has devoted a chapter of the book to the study of the philosophical foundations/justification for grant of extended protection for pharmaceutical patents under the trips agreement. this chapter with the analysis of property rights theories, tracing the origins from the utilitarianism to the incentive based economic justifications. dr mey covers the theories propounded by locke, kant and hegel, hume and bentham to the more recent works of hettinger lemley from the twentieth century. this part of the book is probably one of the most important areas of book review 348 the study, as it also seeks to balance the justification for patent protection with the right to life contained in various international conventions, including universal declaration of human rights (udhr), international convention on economic social and cultural rights (icescr), and in other regional human rights instruments like the african charter on human and peoples rights (achpr). in her quest to seek answers to the above lead questions, dr mey carefully presents the historical background of both countries taken up for study. kenya and india both former british colonies inherited from their common colonial ruler parliamentary democracy, civic administration, and the common-law legal systems (including ip rights legislations and practices). kenya and india’s ip laws mirrored britain’s patent system dating back to 1856, and were replaced in later years in the post-colonial era. one other reason for the comparative study of patent laws in kenya and india is attributable to the fact that both kenya (in sub-saharan africa) and india (asia) possess a healthy pharmaceutical industry (developed in their post-colonial era), yet the two countries are worlds apart. the indian pharmaceutical sector is, in comparison to kenya’s, much more advanced and remains a major supplier of pharmaceuticals products to both kenya, and other developing countries. indian pharmaceutical sector, although produces bulk drugs for most disease segments, is still mainly dominated by generics medicines developed on the back of a process patent system introduced in the pre-trips era. this legislation was introduced in india in 1971, on the back of recommendations from the justice iyyangar committee, which recommended a clear departure from the product patent model introduced under british rule. with the above laws from 1971, india was able to address the public health concerns domestically and also at the same time accord the foreign patent holders operating in india some form of protection for their inventions. all this was to change with the entry of the trips agreement in 1995, which introduced a product patent system and a 20-year period of patent protection for pharmaceutical products and others. india, till such time it introduced the trips compliant patent laws, had for years been an important supplier of affordable generic pharmaceutical products to many developing countries. to put things in perspective, african countries account for 15% of india’s us $8 billion pharmaceutical exports. kenya, the third-largest african market for generic drugs from india, is estimated to have imported drugs worth more than us $70 million in 2008. the introduction of the trips agreement had not only seen a rise in the prices of patented pharmaceutical products in developing countries, who don’t have a proper health care system, but also has seen the drying up of affordable generic pharmaceutical products from india. one of the populations seriously affected from the problem is those affected by hiv/aids and living in developing countries and least the denning law journal 349 developed countries, and in particular in sub-saharan africa, as they are unable to access frontline antiretroviral (arv) drugs for their treatment. coming to the social economic conditions of the kenya and india, the dr mey points out that although kenya is classified alongside india as a developing country, its industrial development and scientific capacity is not as advanced as india’s. she most importantly observes that intellectual property rights can be said to be better established in kenya than in india through patent laws that are fully trips-compliant. she is also quick to point out that problems of corruption, weak institutional and regulatory frameworks for implementing and enforcing ip rights have “continually restricted the ability of both countries to effectively protect and enforce their ip rights in a manner that allows them to progressively participate in international trade negotiations and international standard-setting processes.” the introduction of intellectual property rights protection in the wto negotiation process and thereafter in the multilateral trading system is dealt with clearly, and so is the opposition from the developing country member states of the wto. it is very obvious that the work is based on a phd thesis as demonstrated by the structure, the research questions raised and the methodologies and the style employed. this does not in any way diminish the intensity of the work in addressing the key issue of access to medicines in india and kenya, with the entry of the trips agreement. while intellectual property laws are said to encourage innovation and remains an interesting area of study in the twenty first century, the enforcement of the intellectual property rights relating to pharmaceutical products at the wto, through the instrument of trips agreement appears to be strained, and coming at a heavy cost, i.e., human cost. there had been a few titles on the subject of access to medicines, and the plight of the patience in developing countries who suffer needlessly due to the extended protection afforded to pharmaceutical patents under the trips agreement, but the one under review is different and presents a balanced study of two developing countries who have a developed pharmaceutical sector in the post-colonial era, but have struggled in the implementation of the trips agreement. for the serious researcher, the book by dr mey presents a stark picture of the realities of access to medicines in the developing countries of india and kenya, and how the reality in the ground had changed since the implementation of the trips agreement into their statute books. overall, dr mey’s book is well researched, presenting a sensitive picture and offering an insight into the legal, political and economic realities of the problems faced by the two countries in their efforts to find a balance in the implementation of the trips agreement. abstract law and political reality in the post-european-accession british constitution j. w bridge'*' "the tide is advancing. it is no use our trying to stop it, any more than king canute did. he got his feet wet. i expect we shall all get our feet wet too." lord denning! introduction just over fourteen years ago the united kingdom acceded to the european communities. membership has necessarily involved accepting "the whole corpus of accumulated community law, particularly in the decisions of the court of justice since 1952.,,2 among those decisions, by far the most important and significant lay down the twin doctrines of the supremacy of community law and the direct enforceability of community law in the courts of the member states.3 at midnight on 31 december 1972/1 january 1973 we therefore entered a new constitutional world which is not an amorphous one but one which exists within a designed framework established by the treaties.4 our membership was initially subject to a period of transition,s but after that had passed we became subject to the full scope and force of community law. as the european court put it: "the expiry of the transitional period laid down by the treaty meant that, from that time, those matters and areas explicitly attributed to the community came under community jurisdiction."6 whilst some still minimise the domestic impact of membership of the community as little more than participation in a europe des ·professor of public law in the university of exeter. 1. "the incoming tide (inaugural lord fletcher lecture, 10 december 1979), in the lord fletcher leaures 1979-1982 (1983), 3 at pa. 2. house of lords, select committee on the european communities, session 1977-78, 17th report, the enlargement of the community, vol. 1, annex a, para. 2. 3. see d. lasok and j. w. bridge, an introduction to the law and institutions of the european communities 3rd ed. (1982), pp. 116-153. 4. cf j. d. 8. mitchell, "constitutional law", in then and now 1799-1974 (1974), 73 at p.loo. 5. see treaty and act of accession 1972,)0 1972, l73/4. 6. case 231/78 e. c. commission v. united kingrkim [1979] e.c.r. 1447 at p. 1461. 23 the denning law journal patties,7 the general consensus of scholarly opinion is that the impact has clearly been constitutional, even if views differ over the sense in which that term should be employed.8 within that consensus, with one major exception,9 runs a common theme that while the continuing nature of the sovereignty of the united kingdom parliamentlo remains intact, a range of practical considerations permit us to honour the legal obligations of community membership. this is borne out by the fact that over the past fourteen years, despite the apparently precarious and uncertain nature of our membership, ii we have very largely played the game according to community rules. our judges have not only arrlied community law they have also acknowledged its supremacy, at least dejaao, and the eponym who graces this journal has been credited with accomplishing a "dexterous revolution".13 parliament, subject to one exception to be discussed later, has made no apparent attempt to legislate contrary to community law. further, when the court of justice has adjudged the law of the united kingdom to be deficient in its implementation of community objectives the necessary corrective action has been taken.14 it is the aim of this article to examine the apparent paradox that while the new european dimension of our law "has not yet upset the basic properties of the legal universe"ls there have nevertheless been major and, it will be argued, enduring 7. see i. harden and n. lewis, the noble lie (1986), at p.310. 8. see, for example, p. bromhead, britain's droeloping constitution (1974) ch.22; o. hood phillips, constititional and administrative law 6th ed. (1978), at pp. 142, 146 and 222; j. usher, europnm community law and national law (1981); t. c. hartley andj. a. g. griffith, guvtrflment atullasp 2nd ed. (1981), at pp. 403-407; l. collins, european community law in the united kingdom 3rd ed. (1984), at pp. 21-33; c. turpin, british gllvernment and the constitution (1985), ch.5; s.a. de smith, constitutional and administrative law 5th ed. (1985), at pp. 37-38, 90-94,104,108; e. c. s. wade and a. w. bradley, constitutional and administrative law 10th ed. (1985), at pp. 81-82,102-103,135-138. 9. see the writings of j. d. b. mitchell, in particular "what happened to the constitution on 1st january 1973?", (1980) 11 cambrian law rroiew 69, who argued that by entering a new but established polity the british constitution experienced a revolutionary change which varied its fundamental legal principles. on the possible transfer of sovereignty see j. usher, european community lars>and nalionaj law (1981). 10. see h. w. r. wade, "the legal basis of sovereignty", [1955] cambridge lawjoumal172 and h. l. a. hart, the concept of law (1961), at p.146. the writer subscribes to this view. 11. as suggested by lord bridge of harwich, "attempts towards a european constitution in the light of the british legal system", inj. schwarze and r. bieber (eds.) eine verfassungjureuroptj (1984), atpp. 119-120. 12. for a review of the cases see d. n. clarke and b. e. sufrin, "constitutional conundrums: the impact of the united kingdom's membership of the communities on constitutional theory", in m. p. furmston, r. kerridge and b. e. sufrin (eds.) the effect on english domestic law ofmembenhip of the european communities and of ratification of the european convention on human rights (1983), 32 at p.57 d seq. 13. see t. r. s. allan, "parliamentary sovereignty: lord denning's dexterous revolution", (1983) 31 oxford journal of legal studies 22. 14. for example, the passenger and goods vehicles (recording equipment) regulations 1979, s. 1. 1979, no. 1746 made in response to case 128/78 e. c. commission v. united kingdom [1979] ecr 419, and the equal pay (amendment) regulations 1983, s. 1. 1983, no. 1794 made in response to case 61/81 e. c. commission v. united kingdom [1982) ecr 2601. as to u.k. sources generally, see sweet & maxwell's encyclopedia of european community law, vols. a i and ii (1973 and continued). 15.0. l. keir and f. h. lawson, cases in constitutional law 6th ed. (1979), preface, at p. v. 24 abstract law and political reality in the british constitution constitutional changes. the starting point will be a consideration of what the community expects of a new member and the british government and parliament's perception of and response to that expectation. from there, the reality of the relationship between community law-making and parliamentary sovereignty will be examined together with the role of part i of the european communities act 1972. finally an overall assessment will be attempted. the obligations of membership and the terms of british' accession the procedure for the admission of a new member state under article 237 of the eec treaty includes the commission expressing an opinion on the application. the several opinions expressed by the commission in connection with the sequence of applications made by the united kingdom clearly spell out the basic terms of membership. in 1963 the commission expressed the view that "any application for accession to the community would mean that the country concerned unreservedly accepted the rules and objectives of the treaty of rome.,,16 it was also made clear that the united kingdom would have to accept not only the treaty but also the substantial advances which had been made since the treaty was signed 17 and community law would have to be given the same force in the united kingdom as in the original member states. 18 four years later, at the time of the united kingdom's second application, the commission made an extensive study of the prospects for enlarging the community. 19 it referred to the scope of the obligations of new members in the following terms: "today, belonging to the communities necessarily means accepting not only their original charters the treaties but also the objectives of political unification affirmed in the preambles to the treaties ... similarly, new members will have to accept the decisions taken since the treaties were adopted. these decisions are the fruit of an often hard-won compromise between the six, and they have also established an incontestable de facto solidarity between them. it would be impossible and illusory to attempt to call them into question. consequently, as a general rule, a solution to the concrete problems will have to be sought by working out transitional measures and not by amending the existing rules."zo in this opinion the commission took specific note of the differences between the united kingdom legal system and the legal systems of the six in the context of 16. eec commission, report to the european parliament on the state of the negotiations with the united kingdom (1963), at p.12. 17. ibid., at p.l11. 18. ibid., at p.l04. 19. e. c. commission, opinion on the applications for membership received from the united kingdom, ireland, denmark and norway, com (67) 750. 20. ibid., at p.5. 21. ibid., at p.103. 25 the denning law journal the proper application of community law in the united kingdom. in the commission's view, "the problems involved in establishing the conditions under which community law will have its full effect in the united kingdom do not in fact differ in character from those already encountered by the present member states.'l21 the commission was satisfied that the transfer to the community, as required by the treaty, of certain legislative powers "with the consequences this entails for the legislative activity of parliament (adoption of measures required by community law, present and future; avoidance of measures incompatible with community law)" could be validly effected by act of parliament.22 the negotiations which led to membership proceeded on that basis so that in its favourable formal opinion on the eve of the signature of the treaty of accession the commission was able to declare: (i) that the treaties, their political objectives and all existing acts of the community institutions were accepted without reserve; (ii) that essential features of the community legal system were the direct applicability of community law and its precedence over national provisions conflicting with it; and (iii) that accession entailed recognition of the binding force of those rules and of the indispensable nature of their observance as a guarantee of the effectiveness and unity of community law.23 therefore, by the treaty and act of accession 1972, "the provisions of the original treaties and the acts adopted by the institutions of the communities" became binding on and applied in the united kingdom from 1 january 1973 subject only to the transitional arrangements.24 it is very clear from government statements, parliamentary debates and other sources that the nature of the legal obligations of membership and their constitutional significance for the united kingdom were fully appreciated. in two of the commission opinions cited earlier reference is made to specific undertakings by her majesty's government to "subscribe fully to the various aims which the governments of the member countries of the community had set themselves",25 to accept not only the economic but also the political objectives of the treaties,26 and to accept "an unprecedented innovation in united kingdom constitutional law" namely the "subordination of municipal law to community law which is directly enforceable". 27 as early as 1962 the then lord chancellor, lord dilhorne, in a debate on britain and the common market said: "if one subscribes to the objectives of the treaties it follows that one cannot logically object to the degree of supra-national determination and administration necessary to secure the 22. ibid 23. e. c. commission, opinion of 19 january 1972 on applications for accession to the european communities by denmark, ireland, norway and the united kingdom, jo 1972, l73/3. 24. act of accession 1972, art. 2. 25. supra n. 16, at pp. 13-14. 26. supra n. 19, at p.18: 27. ibid., at p.103. the recent assertion by lord denning that upon accession the aims of the community were merely economic but have subsequently become political and legal is, with respect, unfounded; see house of lords debates, 5th series, 1985-86, vo1.479,col.1055 et seq. 26 abstract law and political reality in the british constitution uniform application of policy throughout the member states to attain these objectives . . . by agreeing to be bound by the treaty we, of course, commit ourselves to comply with the provisions of that treaty.,,28five years later, under a different government, a white paper was published which assessed the legal and constitutional implications of united kingdom membership.29 in a debate on that document the new lord chancellor, lord gardiner, said: "we have made it clear that it would not be our intention to change the nature, spirit or workings of the community any more than would inevitably result from the fact that the number of members had increased from the present figure.,,30 both conservative and labour governments were therefore ad idem on this fundamental issue and the negotiations which led to accession in 1973 proceeded on this agreed basis.3) parliamentary approval of the decision of principle to join the community was also secured on that basis.32 final confirmation of this, it is submitted, was given by means of the referendum on united kingdom membership in 1975. the "renegotiations" which led up to the referendum were largely focussed on such specific issues as changes in the common agricultural policy and the methods of financing the community budget.33 but one objective of the "renegotiations" potentially struck at the fundamental principles of community law, namely the retention by the united kingdom parliament "of those powers over the british economy needed to pursue effective regional, industrial and fiscal policies" .34further, the right was reserved "to propose changes in the treaties if it should tum out that essential interests cannot be met without them.,,35 the referendum was therefore seen as addressing itself to a unique issue which had "fundamental implications for the future of this country, for the political relationship between the united kingdom and the other member governments of the community, and for the constitutional position of parliament.,,36 in the event the "renegotiations" turned out to be a classic instance of parturiunt montes nascitur ridicu/us mus. on its own admission the labour government did not achieve all its objectives in full.37 the treaties remained 28. house of lords debates, 5th series, 1961-62, vo1.243,co1.421. 29. legal and constitutional implications of united kingdom membership of the european commullities (1967), cmnd.3301. 30. house ('flords debates, 5th series, 1966-67, vo1.282,co1.l205. 31. for example, mr geoffrey rippon in the second reading debate on the european communities bill relied on the 1967 white paper and on the statements of lord gardiner: house of commons debates, 5th series, 1971-72, vo1.831,cols. 278, 279. similarly the conservative government in 1971 confirmed and adopted the negotiating stance which its predecessor had taken: the united kingdom alld the european communities (1971), cmnd.4715, para.22. 32. for the debate on the issue of principle, see house of commons debates, 5th series, 1970-71, vol.823 at cols. 911, 1094, 1234, 1480, 1731 and 2076. 33. see renegotiation of the terms of entry into the european economic community (1974), cmnd.5593. 34. ibid., para.3, at p.4. 35. ibid., para.l5. 36. referendum on united kingdom membership of the european community (1975), cmnd.5925, preface, at p.2. 37. membership of the european community (1975), cmnd.5999, at p.9. 27 the denning law journal unamended.38 in relation to the specific areas of parliamentary lawmaking raised in the "renegotiations", the government appears to have been satisfied that any problems could be solved by administrative means.39 on the more general and fundamental issue of the role of parliament and its relationship with community law the government did little more than re-iterate what had already been said in the 1967 white paper: "national courts are required to apply directly applicable community law and to give it priority should it conflict with nationallegislation.,,4q therefore the significance of the "renegotiations" as far as the fundamental legal obligations of membership were concerned was to confirm them. that confirmation was then included in the terms of the government's recommendation to the electorate to vote for staying in the community.41 the explanatory booklet which the government circulated to all households prior to the referendum referred to the practical restraints on national freedom of action in the modern world and then said: "it is the council of ministers, and not the market's officials, who take the important decisions. these decisions can be taken only if all the members of the council agree. the minister representing britain can veto any proposal for a new law or a new tax if he considers it to be against british interests. ministers from the other governments have the same right to veto.,,42 the clear implication of this is that in all cases where the veto is not invoked the decision will be accepted by the british government and implemented. the referendum was seen by the british government as a unique event and as "the means by which the british people will decide th"e issue of our membership of the european community.,,43 the clear-cut vote in favour of continuing membership may therefore be said to have signified popular approval of the terms of membership. once the "momentous decision" to join the european communities had been made the way forward was very clear. as lord diplock put it in the house of lords' debate on the, european communities bill: "that decision having been made, the obligations which we thereby undertake under the treaties make it inevitable what we have to do to comply with them. the constitutional and legislative system of this country makes it inevitable how, within comparatively narrow limits, we have to do it, and this bill does no more than give legal effect to that political decision."44 to some extent, as lord diplock's observation implies, 38. although the government reserved the right to propose treaty revision in future if necessary, ibid., at p.8. 39. ibid., at p.7 and membership of the european community: report on retlegotiation (1975), cmnd.6003, paras.52-68. 40. cmnd.6003, para.133; the 1967 white paper is quoted at length in para.l34. 41. ibid., paras.114-141. 42. britain's new deal in europe, (hmso, 1975) at p.12. 43. statement by the prime minister on january 23, 1975, supra n.36, annex a, at p.lo. also see g. winterton, "the british grundnorm: parliamentary supremacy re-examined", (1976) 92 l.qr. 591 and a. w. bradley, "the sovereignty of parliamentin perpetuity?", inj.jowell and d. oliver (eds.), the changing constitution (1985) 23, at pao. 44. house of lords debates, 5th series, 1972, vo1.333,col.l275. 28 abstract law and political reality in the british constitution the british government and parliament were faced with a not unfamiliar objective, namely that of giving domestic effect to the provisions of treaties to which the united kingdom had become a party. legislation for this purpose is necessary because of the long-standing constitutional principle that "adherence to a treaty does not of itself have the effect of changing our internal law even where provisions of the treaty are intended to have direct internal effect as law within the participating states."4s the "constitutional innovation",46 however, lay in accepting future community law as enforceable in the united kingdom, enabling community law to override national law so far as inconsistent with it, and requiring the courts of the united kingdom to seek and accept the rulings of the european court.47 the aim of part i of the european comrtmnities act 1972 is to achieve all of those crucial objectives. it is very clear from that act and from official and unofficial statements made about it that those responsible for its preparation fully accepted the traditional view ofpariiamentary sovereignty.48 as lord dilhorne, l.c. put it in a debate in 1962: "an act of parliament would be required to apply these treaties ... that act of parliament, like any other, could be repealed by a subsequent act; and if that happened the treaties would cease to be law in this country ... parliament could repeal the act applying these treaties; it cannot be prevented from doing so.,,49 this traditional approach therefore relies upon the doctrine of parliamentary restraint to ensure that future laws made by parliament are at all times compatible with community law. lord dilhorne, earlier in the speech cited above, said: "in any subsequent legislation of our own we should have to take good care that it did not conflict with any community regulations or directives."so this theme of restraint is taken up by the 1967 white paper,sl by lord gardiner, l.c.s2 and by mr geoffrey rippon when he was introducing the european communities bill in the house of commons. 53 again, as was pointed out at the time, 54 as a matter of principle the doctrine of parliamentary restraint was not unprecedented, s5 although here its scope and its significance for domestic law were both clearly 45. legal and constitutional implications of united kingdom membership of the europeall coml/llmities (1967), cmnd.3301, para.22. also see mcwhirter v. attorney general [1972] c.m.l.r. 882, per lord denning, m.r., at p.886. 46. cmnd.3301, para.22. 47. ibid., paras.22, 23 and 28. 48. see sir geoffrey howe, "the european communities act 1972", (1973) internationalaffairs i, at p.8. 49. house of lords debates, 5th series, 1961-62, vo1.243, cols.421-422. also see the foreign secretary (earl of home) to the same effect, ibid., co1.279. 50. ibid., co1.420. 51. cmnd.3301, para.23. 52. house of lords debates, 5th series, 1966-67, vo1.282, co1.1202. 53. house of commons debates, 5th series, 1971-72, vo1.831, co1.279. 54. see nn.51 and 52, supra. 55. for example, restraint in relation to legislation in conflict with the statute of westminster, 1931 and as a result of treaty constraints imposed by membership of ga ti, nato, and the un. 29 the denning law journal novel. successive british governments in contemplating the practicalities of honouring the obligations of membership of the european community therefore proceeded on the basis that proper restraint would be exercised by parliament. in terms of lord dilhorne's striking simile: ''just as a person does not contemplate divorce when embarking on matrimony ... so here, if we decide to join, we must, i submit, do it wholeheartedly and with the intention of playing our full part as a member of the community in fostering its purposes and objectives."s6 thus the apparent risk to the unity and uniformity of community law represented by the continued existence of the "ultimate sovereignty of parliament"s7 would in practice be removed by the political fact of british membership. thus true to british constitutional tradition and practice a wholly conventional and pragmatic means of achieving the supremacy of community law was adopted, supported by a statutory injunction to the courts in favour of community law.s8 sir geoffrey howe, speaking on behalf of himself and his ministerial colleagues, said at the time: "we did not believe that we could have done more than this to resolve, in advance, every problem or possible conflict that might perhaps arise in the future."s9 it has already been pointed out that the commission of the european communities was fully satisfied that the united kingdom would be able to honour the obligations of membership by the political and legal means proposed, despite the retention of the ultimate sovereignty ofparliament.6o it is indeed arguable that the doctrine of parliamentary restraint is entirely compatible with article 5 of the eec treaty which requires member states to "abstain from any measure which could jeopardise the attainment of the objectives of this treaty,,61 and does not in terms call for a legal guarantee of such abstention. it was not doubted that acceptance of membership of the european community on the terms negotiated would have far-reaching consequences for the practical exercise of law-making power by parliament. this was fully appreciated, for example, by the royal commission on the constitution the deliberations of which took place against the background of the accession negotiations.62all members of the royal commission accepted the traditional doctine of the supremacy of parliament,63 but it was acknowledged that british membership of the european community would involve "the acceptance of a measure of government from 56. house of lords debates, 5th series, 1961-62, vo1.243, coia22. 57. a term used by mr geoffrey rippon: see house of commons debates, 5th series, 1971-72, vol.831, co1.278. 58. by virtue of european communities act 1972, s.2(4) to be discussed further below. on the aim of that subsection see supra n.57 and lord hailsham, l.c. in house of lords debates, 5th series, 1972, vol. 333, co1.1230. 59. "the european communities act 1972", (1973) 49 international affairs 1, at p.lo. 60. supra n.21. 61. emphasis added. 62. the royal commission began its work in 1969 and reported in october 1973. 63. see the royal commission's report, vol.1, cmnd.5460, para.56. 30 http://www.ingentaconnect.com/content/external-references?article=0020-5850(1973)49l.1[aid=5905418] http://www.ingentaconnect.com/content/external-references?article=0020-5850(1973)49l.1[aid=5905418] http://www.ingentaconnect.com/content/external-references?article=0020-5850(1973)49l.1[aid=5905418] abstract law and political reality in the british constitution brussels".64 therefore, in the context of the royal commission's consideration of devolution, a practical consequence of membership would be that "the powers that might be devolved and the freedom with which those powers could be exercised by the regions would be restricted by community provisions applicable within the united kingdom."65 the dissenting minority on the royal commission agreed with this and said that "it would hardly make sense ... to seek to devolve legislativepower and sovereignty ... in those matters where legislative authority is in fact moving from london to brussels.,,66 as mr enoch powell, a well-known opponent of british membership, put it recently "in 1972 the house made a comprehensive renunciation of its powers legislative and financial and of british judicial authority and of the control of the house over policy. it did that on the basis of the treaty to which we were acceding ... ,,67 community law, parliament and the european communities act the assertion was made at the outset that during the fourteen years of membership the united kingdom has been a full and loyal participant in the new constitutional and legal order which it has entered. despite what lord bridge has suggested is an "inherent weakness of our constitution,,68 the forecast of a pair of early commentators has proved accurate and we have "found enough constitutional space to ensure the supremacy of directly applicable community law ... ,,69most attempts to analyse how this has happened have tended to focus on part i of the european communities act and the role of the judges. this is understandable because those matters have a high visibility and are overt manifestations of the actuality of british membership. whilst it is not intended to deny the important part played by the act and by our judges, it is submitted that there are less public but more fundamental factors which explain and in a real sense guarantee our fulfilment of the conditions of membership. these involvethe nature of community law and the part played by the united kingdom government in law-making both by the community and by parliament. in the first place, a characteristic feature of community law as a new and independent legal order with the goal of achieving economic integration is that in a number of important fields it replaces the domestic laws of the member states.70 to take two major instances, both the rules of customs law and of the law relating 64. ibid., para.409. 65. ibid., para.404. also see para.413 to the same effect. 66. see the "memorandum of dissent by lord crowther-hunt and professor a. t. peacock", ruyal commission's report, vol.2, cmnd.5460-i, para.83. also see paras.86 and 88 to the same effect. 67. in a debate on the european community and the single european act, house of commons debates, 6th series, 1985-86, vol.93, cols.352-353. as to the single european act, see european communities no.12 (1986), cmnd.9758. 68. supra n.ll, at p.1l7. 69. g. child and j. evans, britain, europe and the law (1973), at p.20. 70. see generally j. usher, european community law and national law (1981), ch.3. 31 the denning law journal to agriculture currently in force in the united kingdom are the relevant rules of community law. the commissioners of customs and excise and the intervention board for agricultural produce respectively are performing community functions in pursuance of directly applicable community regulations.71 as the european court has said in relation to customs law: "the common customs tariff [has] replaced the national customs tariff of the member states and, subject to review by the courts responsible for applying and interpreting community law, in particular on questions raised under article 177 of the treaty, the community authorities alone have jurisdiction to interpret and determine the legal effect of the headings which it comprises."n a recent case provides a clear illustration of the practical effect of this ruling in the united kingdom. h.m. customs seized consignments of inflatable, life-size "sex dolls", which were being imported into the united kingdom from the federal republic of germany, on the grounds that the seizure was justified by the public morality exception in the rules of community law concerning the free movement of goods.73 the seizure was challenged in an english court which sought a preliminary ruling on the point from the european court. that court ruled that the public morality exception did not apply to these goods since they were not prohibited from manufacture or sale within the united kingdom. the seizure was therefore an unjustified restriction on imports contrary to article 30 of the eec treaty.74 the outcome of this case was subsequently challenged in questions asked in the house of lords. 75lord denning criticised the european court's ruling and asked: "are we not entitled to go by the treaty of rome itself and to ignore, if you please, the wrong decisions of the european court, or can we not tell our courts to cock a snook at the european court?,,76but the government's spokesman made it clear that no such option was in fact open: "under the treaty of rome the government are bound by the judgment of the european court of justice. henceforth customs and excise will apply their controls on imported goods in line with the court's judgment.,,77 given the direct applicability of the relevant rules of law and the acknowledgement of the binding nature of the european court's interpretation of them, the government, as the manager and initiator of parliament's legislative business, is clearly not going to introduce bills relating to customs matters. the field has been pre-empted by community law. while parliament, as a matter of law, retains the authority to 71. see halsbury's laws of england 4th ed., vo1.51, european communities, title 3: application of community law in national courts, paras.3.28, 3.29. 72. case 38/75 douaneagent der n. v. nederlandse spoorwegen v. ilispecteur der invoerrechten ell accjnzc1l [1975] e.c.r. 1439, at p.1449. for cases to similar effect in relation to agriculture see]. usher, supra n.70. 73. see eec treaty, art.36. 74. case 121/85 conegate ltd v. h.m. customs and excise [1986] 1 c.m.l.r. 739. 75. house of lords debates, 5th series, 1985-86, vo1.475,co1.702. 76. ibid., co1.703. also see lord denning's comments in house of lords debates, 5th series, 1985-86, vo1.479,cols.1057-1058. 77. supra n.75, col. 702, per the secretary of state for employment (lord young of graftham). 32 abstract law and political reality in the british constitution legislate in that field, as a practical matter the opportunity to do so will not arise. in such situations as these there can be no real risk of our domestic law conflicting with community law because community law occupies the field. secondly, while the substantive content of community rules is a matter of community law, whenever those rules are changed or new ones made the participation by the united kingdom in the community's law-making processes is of supreme constitutional significance. it must be remembered that the council is the principal community legislator both in the sense of law-making in its own name and in the sense of having authority to confer law-making powers on the commission.78 as a member of the council the united kingdom government therefore participates in all exercises of this legislative authority. under the terms of the eec treaty two patterns of voting are employed in the council: a qualified majority as defined in article 148 (2), as amended; and unanimity. unanimity is required most notably for the issuing of directives by the council under article 100 for the purpose of the approximation of laws. in such a case each member state in effect has a veto. if a directive is issued then, by definition, each member state will have voted in favour of it. such a vote by the united kingdom government implies that the government is willing and intends to take the necessary implementing measures by introducing legislation or otherwise, as appropriate. the practical effect of this is to limit significantly the scope for parliamentary legislation in the field covered by the directive since it may reasonably be supposed that any legislation proposed by the government in this connection will be tailor-made to serve the objectives of the directive to which agreement has already been given. as the house of lords select committee on the european communities has put it: "in concrete terms, the issue by the council of a directive under article 100 takes out of the democratic process of the united kingdom's parliament a part of that country's legislative activity. moreover, since a directive once adopted can be repealed only with the agreement of all the member states, the result of the directive is to move to the council part of the country's legislative activity with no practical possibility of getting it back.,,79 as far as regulations are concerned the general voting requirement is a qualified majority,80 subject to the availability of an extra-legal power of veto under the terms of the luxembourg accords of 196681 whenever "very important interests" of one or more member states are at stake. again, a range of practical possibilities present themselves. if the united kingdom government forms part of a qualified majority in favour of a regulation, or if it opposes a regulation and is out-voted and does not invoke the luxembourg accords, then a regulation will be made. such a 78. see d. lasok and j. w. bridge, supra n.3., chs. s, 6 and 8(d). 79. session 1977-78, 22nd report, approximation of laws under article 100 of the eec treaty, para. is. 80. see eec treaty, art.148(2), as amended. 81. see eec bulletin, 1966, no.3, at pp.9, 10. also see d. lasok and j. w. bridge, supra n.3, at pp.181-18s. 33 the denning law journal regulation, as a directly applicable act82 and by virtue of section 2 (1) of the european communities act 1972, will without further enacnnent be recognised and available in law, and be enforced, allowed and followed in the united kingdom. in such a situation any conflict with prior united kingdom law will be resolved in favour of the regulation by the simple operation of the lex posterior rule. since in such a case the united kingdom government will have taken part in the preparation and enacnnent of the regulation and will have either voted in favour of it or at least acquiesced in it, the likelihood of the government introducing incompatible legislative proposals in parliament is extremely remote.83 if, on the other hand, the united kingdom government invokes the luxembourg accords and uses the veto, then no regulation will be made until the government is satisfied that our "very important interests" have been safeguarded and until then there can be no possibility of conflict with our domestic law on that particular issue. although under the terms of the single european act,84 for the purposes of completing the community's internal market, there will be a move from unanimity to qualified majority voting it has been made clear that the luxembourg accords remain in place and unaffected.85 successive british governments have taken very seriously the responsibilty, in effect remitted to them by parliament through passing the european communities act 1972, for safeguarding united kingdom interests in the deliberations of the council which result in directly applicable community law.86 this has not always endeared the united kingdom to the other member states: "although the united kingdom faithfully implements decisions once they have been taken, other member states see it as reluctant to allow the decisions to be taken in the first place and insisting on every detail being explored and settled in advance.,,87 while in a sense this may make the united kingdom seem less extrovertly communautaire than some members, in terms of comminnent to community law once the decisions have been taken the united kingdom may in some respects be said to be more communautaire than some. this need to be fully convinced before a decision is taken also makes it highly unlikely that any contradictory national legislation will in practice be introduced in parliament. for the practical reasons rehearsed above it is submitted that united kingdom legislation expressly opposing the requirements of community law is extremely 82. by virtue of eec treaty, art.189. 83. cf lord gardiner, l.c., house of lords debates, 5th series, 1966-67, vo1.282,co1.1203. 84. see european communities no. 12 (1986) cmnd.9758, in particular arts.13-19. 85. see the statement by the foreign secretary (sir geoffrey howe), house of commons debates, 6th series, 1985-86, vo1.96,cols.319-321. for a less sanguine view see house of lords select committee on the european communities, session 1985-86, 12th report, the single european act and parliamentary scmtiny, paras.l4 & 15. 86. cf membership of the european commullity: report on renegotiation (1975), cmnd.6003, para. 136 and house of lords select committee on the european communities, session 1984-85, 14th report, european union, para.46. 87. house of lords report on european union, ibid., para.27. 34 abstract law and political reality in the british constitution unlikely given the political fact of continuing british membership: "it is unlikely that parliament in these circumstances would wish to proceed with matters inconsistent with treaty obligations.,,88 a working assumption can therefore be advanced that at any given time the community rules, in the making of which the united kingdom has participated, will fill the occupied field of community concern and that united kingdom legislation, apart from where it is designed to achieve some community goal, will concern itself with the remaining unoccupied field. the united kingdom government is effectively in control of the legislative programme of the british parliament and is also a community legislator through its membership of the council. the government is therefore well-placed to maintain compatibility between the two legal orders. the effectiveness of part i of the european communities act 1972 and the nature of the demands placed on the judiciary by our community membership must therefore be considered against this background of political reality;89 consideration in the light of abstract law while intellectually challenging will not, given the nature of our constitution, tell us much about how the system works in practice. any discrepancies between community law and laws made by the british parliament are therefore likely to be unintentional and the result of inadvertence or faulty drafting. therefore the combination of the statutory rule of construction in favour of community law90 and the requirement that our judges interpret and apply community law in accordance with the case law of the european court91 provide perfecdy adequate practical means of correcting such discrepancies. as sir geoffrey howe has put it: "what the act seeks to do ... is to enjoin our courts, in their interpretation of future legislation, to give full effect to the concept of 'enforceable community rights' which, as defined in section 2 (1) (and the treaties), contains the element of supremacy ... all, therefore, that our courts have been required to do is simply to limit the consequences of any united kingdom statute that does conflict with community law, though in the case of a future statute any limitation of its consequences would be confined to what is practicable and would not be likely to iron out a conflict which was plainly intentional.,,92 this expectation, faciliated by the consistent exercise of parliamentary restraint, has been realised in the form of lord denning's landmark judgment in macarthy's ltd. v. smith, in which he advanced the principle of construction that the courts should always presume that parliament intended to legislate in conformity with our obligations as a member of the community unless the contrary is stated in express 88. mr geoffrey rippon, house of commons debates, 5th series, 1971-72, vo1.831, co1.279. 89. as j. d. b. mitchell once observed "constitutional law is, at least, a half-brother to politics": supra n.4, at p.73. 90. see european communities act 1972, s.2(4). 91. ibid., s.3(1). 92. supra n.48, at pp.7 and 10. 35 the denning law journal terms.93 this principle has subsequently received a measure of support from the house of lords.94 the assertion that the european communities act 1972 can only be amended or repealed by intentional and express terms in a subsequent act raises questions concerning the doctrine of implied repeal. that doctrine, which is seen as a corollary to the traditional doctrine of the sovereignty of parliament, takes the lex posterior rule to its logical extreme and provides that "when two acts conflict the later is construed as amending or repealing the earlier one.,,95 if a directly applicable rule of community law, which is enforceable in the united kingdom by virtue of section 2 (1) of the european communities act 1972, says x and an act of the united kingdom parliament of a later date says x minus 1, has that later act impliedly repealed either the european communities act pro tanto or the community rule in question? it is submitted that the answer to that question is "no" and that that answer has much more to do with the scope of the doctrine of implied repeal and the relationship between community law and the european communities act than it has with the doctrine of the supremacy of community law. the fallacy inherent in the view that the doctrine of implied repeal applies in situations like the hypothetical one mentioned above96 has already been exposed by evelyn ellis: "implied repeal occurs where, as in the vauxhall and ellen street cases, statute 1 makes provision for a particular situation and then statute 2 is passed saying something different about that same situation. there is thus an inconsistency between the two acts and, to the extent of this inconsistency, statute 2 prevails over and impliedly repeals statute 1. in the macartkys type situation there is a conflict between community law and an english statute, but there is no conflict between the european communities aa and any other piece of legislation; the only inconsistency is as between the community law on sex discrimination and the english statute. accordingly, there is no question of the repeal of the european communities act either impliedly or otherwise.'197 an important contributing factor to this outcome is of course the generality of the terms of sections 2 and 3 of the european communities act. those provisions reflect both the separate nature of the rules of community law and their continuing significance for the english legal system. but, in addition, their generality distances the actual rules of 93. [1979] 3 c.m.l.r. 44, at pp.46-47. lord denning re-iterated this principle in his what next i'l the law (1982, at pp.296-300. also see t. r. s. allan, supra n.13. 94. see garlarld v. british rail engineering ltd. [1983] 2 a.c. 751, per lord diplock (giving the unanimous judgment of the house), at p.77t. also see o. hood phillips, "a garland for the lords: parliament and community law again", (1982) 98 l.qr. 524 and t. r. s. allan, "parliamentary sovereignty and the eec", [1982] public law 562. 95. per lord hailsham, l.c., house of lords debates, 5th series, 1972, vol. 333, c01.1230. 96. see o. hood phillips, "has the incoming tide reached the palace of westminster?", (i979) 95 l.qr. 167 and "high tide in the strand? post 1972 acts and community law", (1980) 96 l.qr. 31. 97. "supremacy of parliament and european law", (1980) 96 l.qr. 511, at p.513. the cases cited in the passage quoted are vauxhall estates ltd. v. liverpool corporation [1932] 1 k.b. 733, ellm street estates ltd. v. minister of health [1934] 1 k.b. 590, and macarthys ltd v. smith, supra n.93. 36 abstract law and political reality in the british constitution community law from the rules of united kingdom law thus avoiding a direct confrontation between them and making implied repeal in the situation described above impossible. but is the implied repeal of the european communities act impossible in all situations? clearly there is no obstacle to its implied repeal in a situation in which there is an inconsistency between that act and a later act. 98 in this connection it is interesting to consider whether section 1 (3) of the european communities act has been impliedly amended by section 6 of the european assembly elections act 1978. section 1 (3) of the 1972 act lays down a procedure whereby her majesty in council may specify a treaty to be a community treaty for the purposes of the european communities act subject only to the order in council being approved by both houses of parliament. various additional treaties have been so specified from time to time, for example the financial provisions treaty of 1975 which amended the community's budgetary arrangements.99 implicit in this procedure is the rule that the making of treaties is an executive act in which parliament plays no role.! section 6 of the 1978 act introduces a constitutional novelty by stating that no treaty which provides for any increase in the powers of the assembly shall be ratified by the united kingdom unless it has been approved by an act of parliament. that provision is clearly designed to limit the crown's power of treaty-making in an area of particular concern to the community. it requires in respect of a particular type of treaty prior statutory approval rather than approval by parliamentary resolution after the treaty has been concluded. thus there are here two acts which say different things about the same situation and in accordance with the doctrine of implied repeal it must be presumed that the latter act prevails as a matter of united kingdom law. it does not necessarily follow that such constitutional change will impede the united :kingdom's acceptance and implementation of any future treaty which may confer additional powers on the european parliament. any such treaty would require the unanimous approval of the member states.2 where such a treaty is in fact made then presumably the united kingdom government of the day would secure the passing of the required act of parliament.3 that has in fact just happened for the first time. two of the provisions of the single european act 1986 amend the eec treaty to give the european parliament the right to assent to the future accession of new members and associate members.4 we therefore find in the european communities 98. see evelyn ellis, ibid., at p.514. 99. see european communities (definition of treaties) order 1976, 5.1. 1976, no.217. i. see blackburn v. auornry general [1971] 1 w.l.r. 1037, per lord denning, m.r., at p.1040. 2. under the terms of eec treaty, art.236. 3. if such an act was not passed then the united kingdom would clearly have committed a breach of eec treaty, art.5 by failing to take all appropriate measures to ensure fulfilment of community obligations. for a case in point see case 128/78 ec commission v. united killgdom [1979] e.c.r. 419 (the tachograph case). 4. arts. 8 and 9 which amend eec treaty, arts. 237 and 238 respectively; see european communities no. 12 (1986), cmnd.9758. 37 the denning law journal (amendment) act 1986, the principal aim of which is to amend the european communities act 1972 in the light of the single european act,5 a section which provides: "for the purpose of section 6 of the european assembly elections act 1978 the single european act is hereby approved.,,6 the house of lords in garland did not expressly rule out the possibility of the implied repeal of a rule of community law by a later british statute. but it is suggested that, by giving broad support for lord denning's constructionist approach and given the likely nature of actual inconsistences between british statutes and rules of community law, judicial decisions resolving such inconsistencies in favour of community law are effectively guaranteed. conclusion it is clear that since 1 january 1973 the united kingdom has accepted and participated in a form of two-tier central government with an accompanying duality of legal orders.7 policy-making and law-making are no longer the exclusive concern of the united kingdom government and parliament; significant areas of policy-making and law-making have been transferred to the institutions of the community, with the important rider that such policy and law takes precedence over conflicting national policy and law. in support of the political decision to accede to the community our parliament has, in effect, identified the area within which community law will operate and within that area it has refrained from exercising its own law-making power other than as required by community law. clearly something very remarkable has happened but not, it is submitted, something which is entirely unprecedented. one commentator has spoken of the process of joining the european communities in the following terms: "britain's accession to the european communities was analogous to a constitutional amendment of an unprecedented kind, and the process followed for the decision to join was in itself a constitutional exercise. wholly new processes might have been used, but instead the ordinary parliamentary legislative procedure was made to serve this unusual purpose."s this is indeed no more than the history of constitutional change in this country would suggest: "it has always been convenient, if at all possible, to disguise change as continuity, even where continuity might be ambiguous.,,9 this, in turn, 5. excluding the provisions of the single european act which relate to co-operation in the sphere of foreign policy. 6. section 3(4). 7. c[ report of the royal commission on the constitution, vou, cmnd.5460, para.410 and w. wallace, "less than a federation, more than a regime: the community as a political system", in h. wallace, w. wallace and c. webb (eds.), policy making in the european commlmity 2nd. ed. (1983) 401, at pp.406, 410. 8. p. bromhead, britain's developing constitution (1974), at p.213. 9. j. d. b. mitchell, "the sovereignty of parliament and community law: the stumbling block that isn't there", (1979) 55 international affairs 33, at p.39. 38 http://www.ingentaconnect.com/content/external-references?article=0020-5850(1979)55l.33[aid=6038180] abstract law and political reality in the british constitution reflects the familiar dichotomy between continuing abstract constitutional legality and changing political constitutional reality.1o in terms of the former, parliament retains its absolute power to legislate on any conceivable matter; in terms of the latter, parliament's power is limited in accordance with "an established pattern of commitments", ii the content of which is subject to change. the factors which, as has been argued above, ensure practical british compliance with the obligations of membership of the community are the necessary products of the fact of a continuing and willing british membership. while legally nothing has changed, constitutionally, i.e. politically, there has been a major re-allocation of legislative power: "to this extent, and in the area occupied by community law, parliamentary sovereignty may be said to be in abeyance.,,12 or, as sir leslie scarman (as he then was) has put it, british membership of the community has ended "in fact, if not in theory, parliament's power on all occasions and whenever it chooses to legislate as it alone thinks fit.,,13 any future british legislation which was intentionally and expressly contrary to community law or which repealed the european communities act would reflect not so much a re-assertion of the legal sovereignty of parliament as an exercise of the political sovereignty of the government of the day and, consequently, a fundamental change in britain's relationship with the community. a consideration of the constitutional impact of membership of the community naturally prompts comparisons with the emancipation of the british empire. the apparent distinction between the territorial extent of legislative authority on the one hand, and the scope of the subject matter of legislation on the other is one of no practical significance, given the continuing and absolute nature of the legal sovereignty of parliament. nor can the apparent efficacy of the legislative measures for the emancipation of the british empire be taken to establish parliament's capacity legally to limit its own powers. such a conclusion is fallacious since it fails to give proper weight to the long-established and prevailing views, not least in commonwealth countries themselves, of the extent of the legal powers of the british parliament. long after lord sankey's famous dictum in british coal corporation v. the king, 14the governments, parliaments and courts of canada and australia have fully acknowledged the continuing nature of the legislative supremacy of the british parliament. in litigation arising out of the patriation of the canadian constitution, for which purpose canada requested and 10. this dichotomy is also reflected in the title of the 1967 white paper, legal and constitutional implications oj united kingdom membership oj the european communities, cmnd.330 i. it has also received some judicial recognition: see lord denning's reference to "a constitutional point" in macarthys ltd. v. smith [1979] 3 c.m.l.r. 44 at p.47 and sir robert megarry's express reservation in respect of the european communities act in manuel v. attorney general [1983] ch. 77, at p.86. 11. g. watson, the british constitution and europe (1959), at p.65. 12. c. turpin, british g(!ljernment and the constitution (1985), at p.284. 13. "law and administration: a change in relationship" (1972) 50 public administration 253, at p.255. 14. [1935] a.c. 500, at p.520. 39 http://www.ingentaconnect.com/content/external-references?article=0033-3298(1972)50l.253[aid=5892864] the denning law journal consented to the passing of the canada act 1982 by the united kingdom parliament, the supreme court of canada held that "the legal competence of [the british] parliament ... remains unimpaired, and it is for it alone to determine if and how it will act.,,15 and, further, speaking of the statute of westminster, 1931: "whatever the statute may import as to intra-canadian conventional procedures, there is nothing in it or in the proceedings leading up to it that casts any doubt in law as to the undiminished authority of the parliament of the united kingdom over the british north america act, 1867.,,16 the recent australia act 1986,17 passed at the request and with the consent of australia to achieve a similar purpose, also proceeded on the same basis and against the background of the acknowledgement by the high court of australia that "the united kingdom parliament could of course repeal the statute of westminster. it could repeal the commonwealth of australia constitution act.,,18 therefore, the reason for the effectiveness of the emancipation of canada and australia lies not in any formal legal restraint on the british parliament (for none is possible), but in the political reality of the relationship between the united kingdom and those countries.19 that relationship is a constitutional relationship which is based on "the acceptance of a doctrine, almost amounting to a principle in itself, that the great self-governing dominions are not any longer in tutelage but are constituent units of the british commonwealth of nations.,,2o just as, constitutionally, it is out of the question for the united kingdom to legislate for canada or australia without its request and consent, so it is equally out of the question for the united kingdom parliament to invade the area occupied by community law or otherwise legislate contrary to it. the nature of the constitutional relationship is different in each case but both involve the continuing exercise of political restraint on parliament and in each case the end result is the same. to adopt the terminology ofmr justice rand of the supreme court of canada, within the area occupied by community law the 15. reference re amendmmt of the col/stitutioll of callada (nos 1, 2 alld 3) (1982) 125 d.l.r. (3d) 1, at pal. 16. ihid., at p.42, emphasis added. also see manuel v. attorntry-general [1983] ch.77 (megarry, v.c. and c.a.). 17. see i. s. dickinson, "the australia act 1986 an end to constitutional links between australia and the uk", (1986) 136 new law journal 401. 18. bistriev. rokuv (1976) 135 c.l.r. 552, at p.567 per murphy,]. by the same token it could also repeal the canada act 1982 and the australia act 1986. 19. it is ofinterest that in the commonwealth v. queensland murphy,]. cites british membership of the european community as one of the factors which confirms the independence and political separation of australia from the united kingdom; see (1975) 134 c.l.r. 298, at p.334. 20. the commonwealth v. kreglinger f5 fernau lid. (1926) 37 c.l.r. 393, at pp.413-414 per isaacs,]. who also cites the report of the imperial conference of 1926 to similar effect. more recent opinions of the judicial committee in ibra/ebbe v. the queen [1964] a.c. 900, bribery commissioner v. rallasillghe [1965] a.c. 172, and akar v. attorntry-gmeral of sierra leolle [1970] a.c. 853 are not relevant in this context because they are concerned with the powers of the parliaments of ceylon and sierra leone and not with those of the united kingdom parliament. on this point see comlaekv. cope (1974) 131 c.l.r. 432, at p.452 per barwick, c. j.. 40 abstract law and political reality in the british consti1ljtion united kingdom parliament has become a "bare legislative trustee" for the community?l given continuing political commitment to the community, the practical guarantee of our loyalty is at least as effective as in those member states which have a written constitution.22 by means of what lord watson, almost 100 years ago, aptly termed "the silent operation of constitutional principles"23 there has once again occurred "a constitutional, not legal, abdication of sovereignty,,,24, this time in favour of the european community. recent attempts to re-open this issue in the context of the acceptance and implementation of the single european act are quite misconceived.25 the crucial constitutional decision was taken in 1972, after very careful consideration, and confirmed in 1975. the single european act is no more than a logical progression of what was decided then.26 to vary lord denning's sea metaphor, very much more than our feet have become wet, we are rather in mid-channel and swimming strongly with the current. 21. i.e. rand, "some aspects of canadian constitutionalism", (1960) 38 canadian bar reviw 135, at p.l45. 22. sed quaere whether we now have a form of written constitution subject to judicial review exercised by the european court. 23. cooper v. stuart (1889) 14 app. cas. 286, at p.293. 24. a. berriedale keith, the dominions as suvereign states (1938), at p.122. 25. see the parliamentary debates on the second reading of the european communities (amendment) bill: house of commons debates, 6th series, 1985-86, vol.96, cols.316-393 and house of lords debates, 5th series, 1985-86, vo1.479,cols. 1004-1034, 1046-1088. also see letters to the times on 6, 8,12,16,19,23,26 and 28 may, 1986 and r. scruton, "may the lords preserve us", the times, 23 september 1986, at p.l2. 26. cf. lord bethell, home of lords debates, 5th series, 1985-86, vol. 479, cols.l061-1062. 41 environmental law as an academic subject j. f. garner'*' it is the purpose of this article to endeavour to define the contents of this seemingly new subject and to suggest how it might be presented as a course for a law degree, at either undergraduate or postgraduate level, in universities and polytechnic law schools in this country (with suitable adaptations for scotland). environmental law sounds new and it is certainly new in a law school syllabus sense, but in reality it is as old as the common law itself. the mediaeval statutes that prohibited the planting of trees within 100 feet of the king's highway were designed to protect the passerby from the arrows of robin hood and his men as they passed through sherwood forest. william shakespeare's father was fined in 1584 by the town council of stratford for allowing a dung-heap to accumulate outside his house. james i had passed an ordinance against the burning of "sea coal" within a specified distance of his palace at westminster. so we must start with the common law, and that means primarily the law of nuisance. smoke that may injure a potential plaintiffs health or that of the begonias in his garden may be made the subject of an injunction or give rise to an action for damages. sundry noises, smell and smuts from a petrol depot that disturbed the peace at the plaintiff's home were the subject of successful nuisance proceedings in halsey v. esso petroleum co. ltd .. ! the common law is perhaps most zealous in its protection of the property rights vested in private owners. thus the water in the adjacent river or stream must not be polluted by the agency of some other person higher up the stream and the plaintiff is entitled to a flowof water passing his land in its natural state, unaffected by colour, smell, quality, or temperature, and undiminished in quantity: young v. bankier distillery co.,z but this does not apply to underground percolating water not flowing in a defined channel: bradford v. pickles.3 air and water quality, freedom from unreasonable noise and objectionable substances placed on adjoining land, are therefore assured by the common law to the owner or occupier ofland. he is entitled to peaceful enjoyment of his property "emeritus professor of public law, university of nottingham. 1. [1961] i all e.r. 145. 2. [1897] a.c. 691. 3. [1895] a.c. 587. 51 the denning law journal uninterrupted by the unreasonable use of his neighbour's land: sic utere tuo ut alienum non laedas. also, if a particular nuisance is so serious as to affect a substantial number of her majesty's subjects in a particular locality, the attorney-general may intervene and take proceedings for an injunction to prevent further commission of such a public nuisance: au. -gen. v. p. ya. quarries ltd ..4 but the common law as it has developed has not concerned itself with the rights of the community as such. proceedings in nuisance will depend on the initiative of a land owner or occupier and will be subject to the accidents of litigation, and in particular on the resources and energy of an individual plaintiff. the cholera epidemic and appalling squalor of town life in victorian times made it vitally necessary for parliament to intervene and the great public health acts of 1848 and 1875 were the result. duties were placed on local authorities to provide adequate sewerage systems and the concept of statutory nuisance (now to be found in section 92 of the public health act 1936) has proved to be of great practical benefit. in the twentieth century laws affecting the environment have blossomed apace. by far the most important has been the town and country planning legislation under which the right to develop land has been nationalised. under the town and country planning act 1947 and its successors a land-owner may not, subject to certain detailed exceptions, carry out development on his land without first obtaining permission from the local planning authority. for this purpose "development" means not only the carrying out of building and other operations but also the making of a material change in the use of his land (from which, however, agricultural operations are excepted). this seminal legislation, sensitively used, is potentially of the greatest importance as an advance guard to protect and conserve the environment. however, since the end of the second world war, parliament has passed three major measures in the fight to preserve the environment and curb pollution. these are: the clean air act 1956, supplemented by the act of thc same name of 1968, the control of pollution act 1974, and the wildlife and countryside act 1981. these three acts utilise in different ways four separate but linked mechanisms. these are absolute or qualified prohibitions of specified activities enforced by the criminal law, a licensing system again buttressed by enforcement provisions in default of compliance, special areas within which a particular regime of conduct is to be observed, and systems of management for specified areas. the latter operate through specialised agencies, often enforceable by agreements based on the ordinary law of contract. these mechanisms are built on top of the common law of nuisance as already explained and in no way supersede it. we will now discuss these four mechanisms separately. 4. [1957] 1 all e.r. 894. 52 environmental law as an academic subject licensing the outstanding example of this mechanism is, of course, to be seen in the town and country planning legislation. however, one of the earliest controls using the licensing mechanism in the environmental field was s.112 of the public health act 1875 (since replaced by s.107 of the act of 1936). this required the licensing by the local authority of certain offensive trades such as blood boiling, gut scraping, rag and bone dealing. this was followed by the alkali works etc. regulation act 1906, which required the carrying out of any of a long list of scheduled processes (since extended under the health and safety at work etc. act 1974) to be registered annually with h.m. alkali inspectorate (now replaced by h.m. pollution inspectorate). any such works must be carried out in such a manner as to use "the best practicable means" to ensure that no noxious gases or fumes are emitted into the atmosphere. this statute has proved to be of great importance in the prevention of chemical pollution, but did not have any effect on the emission of carbonaceous vapours from domestic chimneys. also, by reason of the defence of "best practicable means", it has been ineffectual in preventing the escape of sulphur and nitrates from generating stations which are the most important constituents of the phenomenon known as "acid rain". the whole system of town and country planning legislation is based on the licence for planning permission to carry out development coupled with the strict enforcement powers given to the local authority. it is a criminal offence to ignore the terms of an enforcement notice requiring compliance with conditions thus imposed in a planning permission, or requiring the demolition of a building erected without permission or stopping a use of land which has been changed from a previous use without permission. the current town and country planning act of 1971, which has already been amended on many occasions, also elaborates separate codes. these provide for the licensing of alterations or demolition of listed buildings of architectural or historic interest, for the felling or other destruction of trees and woodlands that have been made the subject of special orders, and for the display of advertisements on land. this last system of licensing is similar to the quite separate control contained in s.3 of the control of pollution act 1974, under which a licence must be obtained from the county council for the deposit of waste on any land. such a licence will be refused or issued subject to elaborate conditions the compliance with which will be closely monitored by the county council and subjected to criminal penalties in the event of a failure to comply with any of the conditions. the discharge of trade effluents into the public sewerage system is subject to licensing administered by the water authority. further, the consent of the water authority is necessary before a new discharge is made to a river, stream, estuarine or coastal waters under their control. in all these cases, and indeed in relation to licensing systems generally, it will be a criminal offence to carry out the activity in question without first obtaining a licence and most frequently the statute will empower the licensing authority to 53 the denning law journal impose conditions in the licence, with which it will then normally be an offence to fail to comply. monitoring due compliance with the terms of such a licence will normally be the duty of the licensing authority. special regimes the concept of the special regime whereby a government agency, such as the secretary of state, the countryside commission, the nature conservancy councilor a local authority, is empowered by parliament to designate a defined area of land to be subject to specialised controls, is a common feature of modern conservation law. thus the secretary of state may designate national parks and areas of outstanding natural beauty which then become subject to stricter planning controls than those applying generally. special authorities or combinations of local authorities are appointed to supervise the national parks, but in all these cases land ownership remains in private hands. the minister of agriculture may designate environmentally sensitive areas in which local farmers may be entitled to special grants to enable them to desist from certain farming activities that would harm the environment. the nature conservancy councilor a local authority may designate nature reserves, and may in some cases acquire the land in a reserve and manage it so as to preserve the fauna and flora. somewhat similarly the nature conservancy council may designate land as being a site of special scientific interest (sssi), and the landowner will then be entitled to compensation if he is refused permission to carry on some activity that would harm the nature of the land as an sssi. on a somewhat smaller scale, a local authority may declare land in an urban or rural area to be a conservation area, which again would subject the land to a tighter than normal planning regime. another example of a special regime is the making of a limestone pavement order by the secretary of state under s.34 of the wildlife and countryside act 1981. also special controls may be imposed in respect of moorland areas under s.42 of the act of 1981. access to open country by members of the public may be secured by orders made under s.59 of the national parks and access to the countryside acts 1949. for a somewhat different purpose, a local authority may declare an area to be a smoke control area, which will mean that within the area only "authorised fuels" (a term which includes gas and electricity) may be used for space-heating purposes. this device has been most effective in controlling the emission of carbonaceous vapours into the atmosphere, but it has had no effect on the emission of sulphur or nitrates. somewhat similar are noise abatement zones, within which the noise level may not be exceeded without the consent of the local authority, who may also require these levels to be reduced. other examples of a special regime are the measures designed for the regeneration of inner cities and depressed areas. these include the enterprise zones and special planning zones whereby would-be 54 environmental law as an academic subject developers can obtain some measure of freedom from normal planning controls and in some cases from local taxation. the urban development corporations are designed to secure the same objectives on a somewhat larger scale. the ordinary local authorities in the area are replaced by special corporations with wide powers and nominated, and funded, by central government. the first two urban developments corporations (merseyside and london dockland) are reported to have been reasonably successful, having been created in 1981, and now (1987) four more have recently been designated by the secretary of state. management the most general example of a management agreement is that contained in s.52 of the town and country planning act 1971, supplemented by s.33 of the local government (miscellaneous provisions) act 1982. under this, a local planning authority may enter into an agreement with a prospective developer of land regulating the manner in which such development is to be carried out. these agreements are currently very popular and are sometimes used, but not always, to achieve environmental objectives. such an agreement will be enforceable by the local authority against the developer in accordance with the usual principles of the law of contract, and in the case of the 1982 act agreements against subsequent land owners. under s.39 of the wildlife and countryside act 1981 a local authority may enter into a management agreement with the owner of land for the purpose of conserving or enhancing the natural beauty or amenity of the land or so as to promote its enjoyment by the public. similar agreements may be entered into by the nature conservancy council in respect of land within an sssi. the minister of agriculture may under s.18 of the agriculture act 1986 enter into an agreement with the owner of agricultural land within an "environmentally sensitive area" (esa) providing that the owner shall refrain from specified sensitive activities that would harm the nature of the land as an esa. in return the minister would arrange for compensation to be paid to any such owner. six areas have been designated as esas at the time of writing, 1987, although some 25 further areas are understood to be under consideration. the management agreement in its various forms is a useful and subtle device enabling a government agency to monitor the day to day use of land in the interest of the environment. private ownership of the land continues and an owner who is restricted in the activities he is permitted to pursue will often be entitled to compensation. criminal sanctions without the enforcement of the criminal law, a considerable portion of conservation law would be ineffectual. the penalties of the law, or the threat of such penalties, lies behind the licensing system already described. the deposit of waste on land, the discharge of effiuent into a stream, the failure 55 the denning law journal to observe the best practicable means to prevent the escape of noxious vapours into the atmosphere, in each case without the relevant consent or approval, or to fail to comply with conditions imposed in such a consent or approval, are all made offences by the relevant legislation. so is the failure to comply with the terms of an enforcement notice issued under the town and country planning legislation. however, in addition there are many instances of specific offences, quite apart from the licensing systems. thus it is an offence to deposit noxious or polluting matter into a river or stream, or to emit dark smoke into the atmosphere from a chimney of a dwelling-house or factory or from an open site. it is an offence to deposit litter in the open air where the public have access, or to burn cable in the open air. the protection of fauna and flora depends almost entirely on the criminal law. thus it is an offence to kill, take or maim a wild bird of a species listed in the wildlife and countryside act 1981, or to disturb its habitat, subject only to the defence that the person responsible had been duly authorised by a licence from the nature conservancy council, or was~e owner of the land where the incident was committed. similar provisions apply'to the picking or destruction of wild plants, and to the killing of certain wild animals listed in the act. badgers and their setts are especially protected by the badgers act of 1974, as amended by the act of 1981 (itself amended in this respect by the act of 1985 of the same name) and deer are protected in some measure in the close season, by the deer act 1960. salmon and certain freshwater fish are protected under the salmon and freshwater fisheries act 1975. the criminal sanctions of the wildlife and countryside act 1981 are unusually stringent. not only maya convicted offender be fined by the court but the bird, animal or plant which was the subject of his offence may be confiscated. further, if he is charged with the taking etc. of a number of birds or plants etc., the maximum fine will be assessed according to the number of items involved. rights of way the protection and maintenance of rights of way and public rights of access to the countryside does not really fit into this fourfold classification of the statutory mechanisms of conservation law. these rights of the public are basically part of the common law right of any of her majesty's subjects to use the queen's highway to pass and repass on their lawful occasions. over the years, with the urbanisation of large areas of the countryside, the common law has had to be supplemented by elaborate procedures for the protection of footpaths and bridleways, for the creation of new public paths and long distance routes, and for the recording of existing rights of way. these provisions are now to be found in the highways act 1980, the national parks and access to the countryside act 1949, and part iv of the wildlife and countryside act 1981. in addition access of the public to open country may be assured by an access agreement or order made under s.59 of the national parks and access to the countryside act 1949. 56 environmental law as an academic subject conclusion the enforcement and monitoring of these diverse provisions is the responsibility of a wide variety of agencies. general oversight is, or should be, provided by the department of the environment, and grants towards the cost of refraining from certain agricultural activities in the interests of the environment are made by the ministry of agriculture, fisheries and food. local authorities are primarily responsible for the administration of the town and country planning legislation, the clean air acts, and for the controls over the deposit of waste on land, although nuclear waste is the responsibility of the national nuclear industry executive. the countryside commission and the nature conservancy council have a variety of supervisory and advisory functions and may in certain circumstances make grants for specific projects. there are also a wide variety of voluntary bodies and pressure groups concerned with the environment, such as the cpre, the rspb, and the several county trusts for nature conservation. all of these monitor the operation of the existing law and from time to time agitate for its reform. in recent years, many directives affecting the environment have been made by the eec and adopted by member states. these have concerned the quality of drinking water, the cleansing of bathing beaches, standards for the emission of sulphur into the atmosphere and the emission of lead. the directive requiring the preparation of an environmental impact statement before a major project is undertaken, will come into force in july 1988. these directives, when in force, have the effect of requiring the uk government to bring our legislation into line with the provisions of each directive. regulations made by the eec on the other hand have direct effect under the european communities act 1972. in addition, there are a number of international treaties to which the united kingdom is a party which are concerned with the environment. these treaties are not automatically part of the law of the united kingdom, but they may have a considerable influence in suggesting improvements in legislation as indeed was the case with many of the provisions of the wildlife and countryside act 1981. 57 human rights, 'arranged' marriages and nullity law: when do 'force', parental 41 denning law journal 2017 vol 29 pp 4167 the penalty rule: 1 a modern interpretation kal kc leung* 1 abstract this paper focuses on the common law doctrine of the penalty rule and the recent supreme court decision in cavendish square holding v makdessi and parking eye v beavis. the state of the penalty rule prior to the judgment was unsatisfactory and criticized by both commentators and practitioners alike. its indiscriminate application and unclear criteria was a needless source of uncertainty for both contracting parties and lawyers. nevertheless, their lordships in makdessi refused to abolish the penalty rule but acknowledged its limited application in the modern commercial context. this paper accordingly aims to justify the continued existence of the doctrine on theoretical grounds within the english private law framework despite its practical obsolescence. keywords: agreed remedies, penalty rule, freedom of contract, cavendish v makdessi 2 introduction contract law lies at the heart of commercial law along with its central doctrines of freedom of contract and pacta sunt servanda.2 an important aspect of the freedom of contract is that contractual parties may agree upon remedies in the event of a breach of contract. as hugh collins notes, “most written contracts…pay considerable attention to agreed remedies.”3 a liquidated damages clause, a clause that quantifies the sum payable upon breach by the defaulting party, is a useful example of an agreed  university of oxford, university college london. 1 as termed by the supreme court in cavendish square holding v makdessi [2015] 3 wlr 1373. the rule against penalties, and the penalties doctrine, will be used synonymously for the penalty rule. 2 roy goode, commercial law in the next millennium (the hamlyn lectures series, sweet & maxwell 1998) 31. 3 hugh collins, the law of contract (4th edn, cambridge university press 2003) 365. the penalty rule: a modern interpretation 42 remedy. liquidated damages clauses serve various practical purposes: they reduce the uncertainties and expenses of pursuing damages under the default contract rules, allocate the risk of loss and allow parties to price the contract more accurately,4 and ensure that the innocent party receives a subjectively-satisfactory compensation that might not be recoverable in an ordinary action for damages due to proof of actual loss. in contrast the penalty rule is an impediment to liquidated damages and its underlying doctrine freedom of contract. the penalty rule applies on a breach of contract and renders an agreed remedy clause (traditionally a liquidated damages clause) to be a penalty and unenforceable. because of its unprincipled application, the rule has been described as a “blatant interference with the freedom of contract”,5 impossible to rationalise,6 and a recipe for disaster.7 nor has the longstanding debate over the rule waned. in the past decade, penalty clauses have been at the forefront of judicial discussion both in australia and in the united kingdom. in the united kingdom, the issue of the penalty rule reached the court of appeal twice within two years and culminated in the supreme court decision of the joint appeals in cavendish v el makdessi (“makdessi”) and parkingeye v beavis (“parkingeye”) in november 2015.8 3 the present study whilst the supreme court in makdessi explained the penalty rule to be based on public policy, their reasoning for continuing to uphold the rule (i.e. refusing to abolish the doctrine) is not entirely convincing. specifically, lords neuberger and sumption were doubtful that “the courts would have invented the rule today if their predecessors had not done so three centuries ago”.9 such apprehension about the rule leads to questions over the precise purpose of the rule against penalties in contract law and the modern commercial world. 4 samuel rea, ‘efficiency implication of penalties and liquidated damages’ [1984] journal of legal studies 148. 5 makdessi v cavendish square holdings [2013] ewca civ 1539 [44]. 6 robophone facilities ltd v blank [1966] 1 wlr 1428, 1446 (diplock lj). 7 sarah worthington, ‘common law values: the role of party autonomy in private law’ in a robertson and m tilbury (eds), the common law of obligations: divergence and unity (hart publishing 2015). 8 makdessi (ca) (n 5); parkingeye v beavis [2015] rtr 27. see also andrews v ausralia and new zealand banking group [2012] hca 30; paciocco v australia and new zealand banking group [2015] fcafc 50: australian high court (judgment pending). 9 makdessi (sc) (n 1) [36]. the denning law journal 43 this paper attempts to fill this void by providing a rationalisation of the “modern” penalty rule based on the supreme court judgment and developments in the past two decades. i assert that the major criticisms against the rule, namely uncertainty over when the rule operates,10 and its abrogation of party autonomy,11 are genuine but inconsequential concerns as the rule has been confined in its application since the late nineties and with the culmination of the recent supreme court decision has become all but symbolic especially within the commercial context (i.e. where neither party deals as a consumer). i consequently argue that the doctrine’s survival is justified since the penalty rule is consistent with other well-established principles within english private law and is best viewed as a constituent of a coherent and rational set of private law rules. thus, not only would the abolishment of the penalty rule prove no more beneficial in practice for commercial parties, it would also lead to an anomalous and unnecessary contrast to principles within contract law and the law of unjust enrichment. the focus of this paper will be on the commercial context (although there will be discussions of the consumer case parkingeye) as this is the area the rule is most relevant. many standard contracts in various industries contain agreed damages clauses such as those in the construction industry (by the joint contracts tribunal). the majority of recent case law concern also only commercial parties, a development largely attributable to the rise of consumer protection mechanisms such as the unfair contract terms act 1977 (“ucta”) and the unfair terms in consumer contracts regulations 1999 (“ucctr”) (both consolidated under the consumer rights act 2015). the discussion will be threefold. part i sets the scene with an examination of the supreme court decision in makdessi. in particular, i discuss the reformulated two-stage test for determining a penalty, and their lordship’s dismissal of “genuine pre-estimate” and “a sum in terrorem” as factors in the finding of a penalty clause. the concept of a “legitimate interest” points towards a high threshold for the finding of a penalty clause and serves as important judicial recognition that commercial parties often have an interest in enforcing the contract beyond simple financial compensation. i conclude with a discussion of the justifications offered against abolishing the doctrine. 10 r halson, ‘remedies for breach of contract’ in m furmston et al (eds), butterworths common law series: the law of contract (4th edn, butterworths law 2007); lucinda miller, ‘penalty clauses in england and france: a comparative study’ [2004] international and comparative law quarterly 79. 11 worthington (n 7). the penalty rule: a modern interpretation 44 part ii examines the penalty rule in in its modern form beginning with colman j’s decision in lordsdale finance12 and its subsequent development. by demonstrating the rule’s consistently limited application in practice, criticisms against the rule are tempered. i examine the rare occasions that the courts made the finding of penalty clause and argue that this was due to a misunderstanding of the rule as it has developed since lordsvale.13 part iii puts forth my justification for the penalty rule and its modern role, elaborating on an argument introduced but not fully explored by the supreme court.14 i demonstrate that the penalty rule is consistent with other firmly established doctrines within english private law including the limited availability of specific performance and punitive damages as remedies, as well as the principle within the law of unjust enrichment that no party, even though innocent, should be allowed to unfairly enrich himself at the expense of another. 4 part i: makdessi v cavendish 4.1 facts and background the state of the penalty rule prior to the supreme court decision was beyond unsatisfactory: smith had described the penalty rule as “indiscriminate in effect and uncertain in application”15 and whincup had considered it very difficult to say which clauses will be upheld and which will be rejected.16 when clarke lj in the court of appeal held the disputed clauses in makdessi, clauses carefully negotiated by well-advised commercial parties, to be penalties, commentators were understandably equally critical of both the decision and of the penalty rule itself.17the appeals of makdessi and parkingeye were of disparate ilk: the former 12 lordsvale finance v bank of zambia [1996] qb 752. 13 jeancharm v barnet football club [2003] ewca civ 58; county leasing v east [2007] ewhc 2907 qb; unaoil v leighton offshore [2014] ewhc 2965 (comm). 14 makdessi (sc) (n 1) [39]. 15 jonna smith, ‘penalty clauses: essential protection or anachronistic and uncommercial?’ (construction law conference, 2015) <http://www.whitepaperdocuments.co.uk/index.php?option=com_docman&task= doc_download&gid=2665&itemid=2> accessed 12 december 2015. 16 michael whincup, contract law and practice (5th edn, 2006 kluwer) 369. 17 janet sullivan, ‘lost on penalties’ [2014] clj 480; e peel ‘unjustified penalties or an unjustified rule against penalties?’ [2014] law quarterly review 365; w day, ‘penalty clauses revisited’ [2014] journal of business law 512. the denning law journal 45 concerned disputed clauses within a contract subject to extensive negotiations where both parties were advised by “very experienced lawyers”, whereas the latter case concerned a clause in a consumer contract. as lord mance aptly explains: the two cases lie at the “opposite ends of a financial spectrum”.18 the appeals were also the first time either the supreme court or house of lords had considered the penalties doctrine in over a century and thus the decision serves as a new landmark for the penalty rule in english law. 4.1.1 facts of cavendish mr makdessi was a key figure in the marketing world of the middle east and the co-founder and majority shareholder of the largest advertising and marketing communications group in that region. makdessi agreed to sell 47.4% of his shares in his company to cavendish holdings (a subsidiary of the world’s largest advertising company), and to certain restrictive covenants. the breach of such covenants (under clause 11, titled “protection of goodwill”) 19 disentitled makdessi from receiving the final two instalments of the purchase price (clause 5.1), a substantial sum in the tens of millions, and required makdessi to sell his remaining stake to cavendish at a substantially reduced price, a value that excluded his goodwill to the business (clause 5.6). 4.1.2 facts of parkingeye parkingeye ltd managed the car park at riverside retail park in chelmsford, essex. numerous “reasonably large, prominent and legible” signs reading “2 hour max stay… failure to comply… will result in parking charge of £85” were displayed throughout the car park.20 mr. beavis, a local chip shop owner, overstayed by nearly an hour and argued that the £85 charge was unenforceable as a penalty at common law. or that that the charge was unfair and unenforceable under the utccr. 18 makdessi (sc) (n 1) [116]. 19 cavendish square holdings v makdessi [2012] ewhc 3582 (comm) [4]: 11.1. each seller recognises the importance of the goodwill of the group to the purchaser and the wpp group which is reflected in the price to be paid by the purchaser for the sale shares. accordingly, each seller commits as set out in this clause 11 to ensure that the interest of each of the purchasers and the wpp group in that goodwill is properly protected.’ (italics supplied). 20 parkingeye (n 8) [2]. the penalty rule: a modern interpretation 46 4.2 criticism of the dunlop test the supreme court acknowledged and described the penalty rule to be an “ancient, haphazardly constructed edifice which has not weathered well…”21 for many years, the courts had struggled to apply standard tests formulated over a century ago, namely the four propositions set out by lord dunedin in dunlop pneumatic tyre v new garage & motor.22 lord dunedin’s second proposition has been relied upon the most by subsequent courts: the essence of a penalty is a payment of money stipulated as in terrorem of the offending party; the essence of liquidated damages is a genuine covenanted pre-estimate of damage.23 the rigidness of this dichotomy has caused decades of difficulties for the judiciary. as miller points out, lord dunedin’s second proposition assumes that an agreed damages clause is either liquidated damages or a penalty. even where one function is more dominant than the other, it is not always the case that the other function is entirely absent (i.e. the two functions are not mutually exclusive). 24 for example, a clause may be a genuine pre-estimate, but it may still have an element of deterrence, even if to a lesser extent. similarly determining whether a clause is a penalty on the concepts of “in terrorem” and genuine pre-estimate is obfuscating, since a party may not be the least terrorised by the prospect of having to pay an exorbitant fee upon breach but under the old test, may well be entitled to protection from the courts. miller considered classification under this test as potentially “misleading”.25 a related problem emerges from this timeworn distinction. the two disputed clauses in makdessi were restrictive covenants and certainly much more complex than what lord dunedin may have contemplated in his time. the breach of the two clauses would have deprived the obligor makdessi, tens of millions of dollars in value, but the immediate loss stemming from the loss would have been minimal for cavendish. nevertheless the loss of goodwill resulting from the breach of the clauses was of great importance to cavendish and the value of the marketing 21 makdessi (sc) (n 1) [3]. 22 [1915] ac 79. 23 ibid 86; modern cases have preferred “intended to deter” as opposed to “stipulated as in terrorem”. 24 miller (n 10) 82. 25 ibid. the denning law journal 47 company, and would have been very difficult to assess.26 a decade earlier mance lj (as he then was) acknowledged the problem that the penalty rule’s premise on a strict dichotomy between genuine pre-estimate and a penalty could not possibly cover all possibilities of clauses operating upon breach. 27 the supreme court in makdessi agreed that the penalty rule had become the prisoner of artificial categorisation, a result of the unsatisfactory distinctions between penalty and genuine pre-estimate, and a genuine pre-estimate and a deterrent. confirming miller’s analysis, lords neuberger and sumption held that a penalty and a genuine preestimate are not natural opposites or mutually exclusive categories and that whether a contractual provision is a penalty is whether it is penal, and not whether it is a pre-estimate of loss.28 4.3 the reformulated test: “legitimate interest” whilst lord dunedin’s traditional four tests in dunlop remains useful for straightforward cases of agreed damages (i.e. a clause stipulating a fixed sum payable upon breach), it had otherwise become too rigid and unfortunately had been treated in a quasi-statutory manner, something that lord dunedin himself never intended. the majority held the new test for ascertaining whether a contractual provision was penal to be: …whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation”29 lords mance and hodge provided differently worded tests to the same substantive effect.30 there are two ascertainable elements to the test: firstly, whether one contracting party has a legitimate interest in enforcing the primary obligation of the other party, and secondly, whether the detriment to the latter party is out of all proportion to such an interest. the concepts of genuine pre-estimate of loss and deterrence that had once been at the heart of the rule are notably absent. 26 makdessi (ca) (n 5) [109]. 27 cine bes filmcilik v uip [2004] 1 clc 401 [15]. 28 makdessi (sc) (n 1), [31] (lords neuberger and sumption) [152] (lord mance). 29 ibid [32]. 30 ibid [152] (lord mance) [255] (lord hodge); see also [293] (lord toulson). the penalty rule: a modern interpretation 48 it was emphasised that the penalty rule was only applicable to secondary obligations. this distinction in practice however may prove difficult to delineate and even in makdessi there was disagreement over whether clause 5.6 constituted a primary or secondary obligation. lords hodge and clarke, contrary to the majority believed the clause to be a primary obligation but kept an “open mind” over clause 5.1.31 there is indeed still a degree of uncertainty and certainly scope for future litigation over this distinction.32 nonetheless the wording suggests a high standard for a successful invocation of the penalty rule. we might contrast this wording directly with another of lord dunedin’s proposition from dunlop that “a clause will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in comparison with the greatest loss that could conceivably be proved.” 33 the new legitimate interest element requires courts to take into account why a party might seek to enforce the clause as opposed to concentrating solely on whether the clause was a genuine preestimate. their lordships pointed towards dunlop itself as an example: a sum of £5 was stipulated for the sale of each tire in breach of the agreement was incommensurate with the actual loss suffered from the sale of one tire, but was not incommensurate with the wider interest that dunlop had in enforcing the damages clause. indeed, their lordships believed this broader interpretation to be the best way of explaining dunlop.34 lord mance, comparing dunlop with makdessi, held that in each case, “the focus should be on the overall picture, not on the individual breaches”.35 an isolated reading of the new test, where a clause will be a penalty only where its enforcement is “out of all proportion” to any legitimate interest, ceteris paribus, is prima facie tougher for the party seeking relief than it traditionally was under lord dunedin’s formulation. more telling are the dicta of the supreme court justices. the majority judgment affirmed passages by diplock lj from robophone that the court should not be eager to make the finding of a penalty clause, and lord woolf in philips hong kong that any stringent approach would lead to undesirable uncertainty.36 where both parties are properly advised and of comparable bargaining power, their lordships believed there to be a strong initial presumption that the parties themselves are the best judges 31 ibid [270] (lord hodge), [291] (lord clarke). 32 j smith and m mccreath, ‘no penalty? cavendish v makdessi: the rule against penalties redefined’ [2016] cri 3. 33 dunlop (n 22) 87. 34 makdessi (sc) (n 1) [22]. 35 ibid [172]. 36 ibid [33]. the denning law journal 49 of what is legitimate in provisions dealing with the consequences of a breach.37 lord hodge remarked that “judges should be modest in their assumptions that they know about business”, and acknowledged that there were real benefits in allowing parties to agree the consequences of a breach of contract.38 the supreme court definitively refused to follow its australian counterpart in andrews v australia and new zealand banking in holding that the penalty rule could apply without the requirement of a breach of contract.39 for our purposes it is important to note that the decision refusing to follow andrews was influenced by the fear that an expansion of the court’s supervisory jurisdiction (into what has always been governed by mutual agreement) would lead to uncharted areas of uncertainty.40 again we can see evidence of the judiciary’s desire for legal certainty, a theme prevalent in the judgment. 4.4 application to the facts the supreme court upheld the validity of the clauses in both cases, affirming the court of appeal’s decision in parkingeye and overruling its decision in makdessi. 4.4.1 makdessi v cavendish the majority believed clause 5.1 to be a price adjustment clause and “in no sense a secondary provision”, and that in this particular case was outside the jurisdiction of the penalties doctrine.41 whilst the withholding of the interim and final payments in clause 5.1 had no relationship to the measure of damages arising from the breach (and would have been disproportionate as a genuine pre-estimate), it was believed that cavendish had a legitimate interest in the observance of the restrictive covenants which extended beyond the recovery from the breach of clause 11. the fact that the breach of clause 11 would cause very little in the way of recoverable loss to cavendish was considered “beside the point”.42 in reaching said conclusion, lords neuberger and sumption emphasised that 37 makdessi (sc) (n 1) [35] (italics supplied). 38 ibid [259]. 39 ibid [34]. see also [130] (lord mance’s lone dissent). 40 ibid [42]. 41 ibid [74]. 42 ibid [75]. the penalty rule: a modern interpretation 50 the parties on both sides were “sophisticated, successful and experienced commercial people bargaining on equal terms with expert legal advice.”43 clause 5.6 which required the transfer of makdessi’s remaining shares at a reduced price was similarly justified by the same legitimate interest behind clause 5.1. the court was notably attuned the business rationale behind the clause: their lordships explained that since makdessi’s efforts and connections were no longer available to the company and would be applied to benefit the company’s competitors, there was a strong case for cavendish to pay a price for the remainder of the shares net the value of makdessi’s goodwill.44 4.5 parkingeye v beavis the supreme court equally held the parking fine of £85 in parkingeye not to be a penalty. it decided that there was a legitimate interest on the part of the park management to enforce the fee for overstaying beyond the two hours, and that £85 was not out of all proportion to this interest. the interest of enforcing the clause, the court held, was a key part of the entire car park scheme: to make efficient use of parking space for the retail outlets and to use the proceeds from the charge as an income stream towards operating profits. 45 the court further reached the conclusion that £85 was not disproportionate whilst referencing the maximum charge of £100 set by the british parking association and the fact that many motorists use the car park aware of the charge. the widespread usage of such a payment structure and level of charge in the uk further supported the conclusion that the clause in question was not a penalty.46 4.6 justifications against abolishment or restrictions whilst counsel for cavendish argued “with considerable forensic skill” for the abolishment of the penalty rule,47 the supreme court unanimously rejected cavendish’s primary and secondary submissions that the rule either be abolished or restricted to non-commercial cases or cases involving payment of money. the majority offered three main justifications against the abolishment of the penalty rule with lords mance and hodge offering largely similar reasons. in examining these 43 ibid. 44 ibid [82]. 45 ibid [99]. 46 ibid [100]. 47 ibid [36]. the denning law journal 51 justifications, which i shall term the “prevalence”, “protectionist”, and the “legal consistency” justifications, i respectfully address the first two and explain why they are not a convincing account for the continued existence of the rule. i put forth my support for the third justification, a justification that i will further develop in part iii. regarding the prevalence justification, the supreme court justices noted that that rule is not only long-standing in english law but is common to all major systems of law with those of the united states, germany, france, switzerland, belgium, and italy provided as examples.48 it is perhaps unfortunate that the court did not elaborate further upon this line of reasoning. whilst uniformity amongst the law of contracts internationally may be an important consideration, it is far from a trump reasoning for upholding the penalty rule. on account of the brevity of their lordships’ explanation and the lack of analysis as to why other legal jurisdictions continue to apply the penalty rule, it appears that the supreme court’s reasoning is analogous to lemmings following each other off a cliff. there certainly was an opportunity to have salvaged this argument. for example, colman j in the case of lordsvale clearly argued that the penalty rule ought not to apply on the facts of that case (an interest clause upon default) because inconsistency between the law applicable in london and new york would have been a great disservice to international banking.49 the protectionist justification concerns gaps in statutory regulation and the protection of parties not covered by either the ucta or the utccr: “there are major areas, notably non-consumer contracts, which are not regulated by statute.”50 this justification, whilst normatively sound, is not entirely consistent with the court’s application of the penalty clause in recent cases. as professor chuah contests, under the newly reformulated test, whether the detriment is out of all proportion to the legitimate interest is a very difficult threshold to cross (he believes the standard to be much higher than mere unreasonable)51 and thus it seems unlikely that the courts can afford the legal protection that they have promised under this justification. revisiting modern penalty clause authorities later on, i show that the courts have rarely found a clause to be a penalty, with only one lone instance where a small business was protected. thus the second justification leads to an unhealthy divergence between what the court claims the penalty rule can accomplish and what it 48 ibid [36]. 49 lordsvale (n 12) 767. 50 makdessi (sc) (n 1) [38]. 51 j chuah, ‘penalty clauses a clarification of principle’ [2016] student law review 48. the penalty rule: a modern interpretation 52 in practice does accomplish and actions always speak louder than words. for such reasons, the second justification is not entirely satisfactory. before discussing the final legal consistency justification, we might note lord mance’s reasoning where his lordship starts from the contrary position holding that “there would have to be shown the strongest reasons for so radical a reversal of jurisprudence which goes back over a century in its current definition and much longer in its antecedents.”52 this demonstration of judicial conservatism is understandable and might be the best way of understanding the thinking behind the supreme court’s reasonings, but an argument along the lines of: if it is not [completely] broken, don’t fix it, is itself not satisfactory for justifying the disparity between the rule’s existence and the rule’s application. finally, the legal consistency justification maintains that the penalty rule is consistent with other well-established principles within english private law including the equity of redemption, relief from forfeiture, refusal to grant specific performance.53 as this paper aims to prove, not only does this reasoning not conflict with the rule’s restricted application, it is the best principled legal justification for upholding the modern penalty rule. the penalty rule, thus viewed a manifestation of a strand of private law jurisprudence, merits its existence even if, as day argues, the rule is now “de facto extinct”.54 5 part ii: the modern penalty rule the penalty rule has been applied few and far between since colman j’s decision in lordsvale: professor peel (discussing the court of appeal’s decision in makdessi) noted: “such a finding [of a penalty clause] is a rare event and the decision is worthy of note for this feature alone …”55 whereas jackson j in alfred mcalpine commented: “looking at the bundle of authorities provided … i note only four cases where the relevant clause has been struck down as a penalty.”56 the modern penalty rule, delineated by what christopher clarke lj terms the “new approach”, has, as a matter of authority shifted english law towards a laissez-faire approach towards agreed damages clauses within the commercial context. the supreme courts decision in makdessi was an affirmation and continuation of this development. 52 makdessi (sc) (n 1) [162]. 53 makdessi (sc) (n 1) [39]. 54 w day ‘a pyrrhic victory for the doctrine against penalties: makdessi v cavendish square holding bv’ [2016] journal of business law 115. 55 peel (n 17) 365. 56 alfred mcalpine capital projects v tilebox [2005] ewhc 281 (tcc) [48]. the denning law journal 53 5.1 the penalty rule’s development 5.1.1 modern origins lordsvale finance professor macfarlane and christopher clarke lj consider lordsvale as the inception of the modern approach. 57 in that case it was held there was no reason to strike down a clause as a penalty if in the circumstances the clause could be explained as “commercially justifiable” provided that the dominant purpose was not to deter the other party from breach.58 lordsvale concerned two syndicated loan agreements entered into by the defendant bank of zambia. it is important to note the international nature of these transactions: the original syndicate was entered into by banks led by sumitomo (based in japan) and the now defunct bcci (founded by a pakistani financier) with of course, the defendant bank of zambia (the country’s central bank). the loan sums were both calculated in american dollars at $100m and $130m. the international emphasis is important for contextualising the decision and understanding the penalty rule’s shift in emphasis as a result of the exigencies of international parties conducting business in england. as colman j recognised in his decision, the disputed clauses in the case were of “considerable importance for english banking law”.59 on the facts, both loan agreements provided that in the event of default, not only was the defendant required to pay an interest rate of 1.5% during the default period, but an additional and unexplained 1 per cent, amounting to a total 2.5% interest rate. the defendants contended this additional one percent to be a penalty and in terrorem as its sole function was to ensure compliance with the loan agreements. colman j disagreed, holding that, whilst an additional one percent in interest was not a genuine pre-estimate and entailed an element of deterrence, the disputed clauses were not penalties.60 this case is firstly an excellent example of the tension between the penalty rule’s jurisdiction and the flexibility required by modern commerce. on one hand colman j’s interpretation and endorsement of commercial justifiability might seem to poke a large and unsettling hole in 57 b macfarlane, ‘penalties and forfeiture’ in j mcghee (ed), snell’s equity, (33rd edn, sweet & maxwell 2015) paras 13 012; makdessi (ca) (n 5), [84]. indications of judicial reticence towards the penalty rule have predated lordsvale: e.g. philips hong kong v ag of hong kong [1993] ukpc 3 and the scaptrade [1983] 2 ac 694, 702. 58 lordsvale (n 12). 59 ibid 761. 60 ibid 767. the penalty rule: a modern interpretation 54 lord dunedin’s second proposition. on the other hand, a contrary decision would have gone against the common practice of loan agreements charging higher default interest rates (which parties are otherwise perfectly entitled to contract into).61 colman j noted london to be “one of the greatest centres of international banking in the world” and that the courts of new york were prepared to enforce such “prevalent provisions”.62 if we recall the “big bang” deregulation of the financial markets under the thatcher government and its following developments a decade earlier, colman j’s concept of commercial justification might be viewed as aligning the law with commercial practice. the second point is that lordsvale is an instance of a judge considering factors not strictly relevant for determining whether the clause was a genuine pre-estimate. this admission of broader considerations allows for judicial maneuver: for example colman j reasoned the additional interest rate applicable upon the defendant’s default to be proportionate by taking into account that a borrower with bad credit, (i.e. the bank of zambia in default) would incur more expensive costs for borrowing than a borrower who has good credit. the result from lordsvale is that the courts will not only focus on the question of a genuine pre-estimate, but also on the wider question of whether there is a legitimate commercial justification. the concept that delineates the modern rule unfortunately is also the problem that has plagued it. how much a court must focus on commercial justifications in relation to deterrence is uncertain, and depending on how one frames this question, if asked at all, will invariably lead to differing results as evident in recent case law. 5.1.2 court of appeal approval in the two decades since lordsvale, the english courts, influenced by the concept of commercial justifiability, have not found the disputed clauses to be penalties in the majority of cases.63 an important judicial endorsement of colman j’s decision comes from mance lj in cine bes where the court of appeal gave credence to the concept of commercial 61 j maccarthy, ‘loan agreements: default interest’ (1996) 11(7) journal of international business and law 144. 62 lordsvale (n 12), 767. 63 bluewater energy v mercon steel [2014] ewhc 2132 (tcc); lancore v barclays bank [2008] ewhc 1264 (ch); e-nik v department for communities and local government [2012] ewhc 3027 (comm); associated british ports v ferryways [2008] ewhc 1265 (comm); steria v sigma wireless [2008] blr 79; bnp paribas v wockhardt [2009] ewhc 3116 (comm). the denning law journal 55 justifiability. the importance of the case also lies with mance lj’s finding that a part of the disputed clause (enforcement costs incurred from prior litigation between the parties) “was understandable in the overall context of the settlement of [their] prior litigation” and therefore not penal.64 cine bes was also the first time a lord justice of appeal unequivocally believed that the popularised dichotomy from dunlop to be rigid and obsolescent. in this way the decision, whilst not necessarily comprehensive, serves as an important steppingstone away from the rule’s ancient origins towards its modern, and rational form. the following year arden, clarke and buxton ljj in murray v leisureplay unanimously approved of the approaches taken in lordsvale and cine bes.65 arden lj included the justification element in her “practical step by step guide” to penalty clauses as a part of the court’s final inquiry stage: where the claimant can prove that the agreed amount payable does not constitute a genuine pre-estimate, the court should ask whether there was some reason that could justify the discrepancy between the amount payable under the clause and the amount payable under common law damages.66 buxton lj (with whom clarke lj agreed) took a broader approach than that of arden lj, re-examined the house of lord’s decision in dunlop, and put forth an explanation of dunlop in commercial rather than deterrent terms, emphasising the need to look at any disputed clause in its commercial context.67 this disagreement, which christopher clarke lj (wrongly) believed to be not …as marked as it might appear …”68 is indicative of the troubles that judges have faced in framing the commercial justification concept. the supreme court recently clarified the issue and affirmed buxton lj’s wide approach, disagreeing with arden lj in treating commercial justification as evidence that the clause was not intended to deter.69 5.1.3 a prevalent judicial attitude whilst the speeches of mance lj in cine bes and arden lj in murray are the most recognised, the post-lordsvale sentiment of a restrained penalty rule is equally evident in other decisions. for example, jackson j in alfred mcalpine explained that “the courts, are predisposed, where possible, to uphold contractual terms which fix the level of damages for 64 cine bes (n 27) [33] (italics supplied). 65 [2005] ecwa civ 963, irlr 946. 66 ibid [54]. 67 ibid [118]. 68 makdessi (ca) (n 5) [124]. 69 makdessi (sc) (n 1) [28]. the penalty rule: a modern interpretation 56 breach …”70 and held that a liquidated damages clause for £45,000 a week in damages in a building contract not to be a penalty, whilst burton j in m & j polymers made the finding that the “take or pay clause was commercially justifiable …, and did not have the predominant purpose of deterring a breach of contract.”71 the courts have reached the same conclusion against the finding of a penalty in cases concerning demurrage clauses,72 agreed damage clauses in employment contracts,73 as well as in yacht construction contracts.74 beatson j’s remarks in general trading perfectly reflects the changed attitude of the courts: at the outset of the hearing i inclined to the view that this clause inserted, at the very end of the negotiations, was penal because of the size of the difference between the amount of the loan to be guaranteed and the amount of the loan notes that would be cancelled. in the light of the evidence, however, and the broader approach of buxton and clarke ljj in murray v leisureplay, i am satisfied that it is not.75 to drive home the point, there have been a series of cases where the court, whilst not finding the contested clause(s) to engage the penalty rule, nevertheless held obiter that they would not have found the clause to be penal had it fallen with the scope of the rule.76 it is clear that, as a starting point, the modern penalty rule has been very limited in its application. establishing this as the norm, we can examine the rare instances where the courts have found a clause to be penal post-lordsvale as to whether they are exceptions or rather, a misunderstanding of the rule’s modern application. 70 alfred mcalpine (n 56) [47](3). 71 m & j polymers v imerys minerals [2008] ewhc 344 (comm) [46]. 72 mediterranean shipping v cottonex anstlat [2015] ewhc 283 (comm), [2015] 1 clc 143. 73 tullett prebon v ghaleb [2008] ewhc 1929 (qb). 74 azimut benetti v darrell healey [2010] ewhc 2234 (comm). 75 the general trading company v richmond corporation [2008] ewhc 1479 (comm) [133]. 76 ibid; euro london v claessens international [2006] ewca civ 385; henning berg v blackburn rovers football club [2013] ewhc 1070 (ch); edgeworth capital v ramblas investments [2015] ewhc 150. the denning law journal 57 5.2 exceptions or misconceptions? in analysing the decisions where the court did make a finding of a penalty, this paper will avoid jobson v johnson 77 and workers trust v dojap 78 as both cases concern the penalty rule’s relationship with the relief from forfeiture, an area that the supreme court considers unresolved. 79 similarly, this paper will only examine post-lordsvale case law, omitting preceding decisions such as bridge v campbell discount and lombard north, as subsequent developments have notably altered the interpretation of dunlop and the penalty rule.80 it is submitted that the three authorities that we will reexamine in jeancharm, county leasing and unaoil, 81 are instances where the commercial justification was either not applied or misapplied and that with an accurate application of the modern rule, these clauses would be upheld as enforceable liquidated damages and a fortiori would be upheld under the new supreme court test, which demonstrated above, is harder for proving a penalty clause. 5.2.1 jeancharm v barnet football club [2003] jeancharm is the first significant finding of a penalty clause since the shift in lordsvale. the case concerned an agreement for the supply of football kit from jeancharm to barnet. the contract contained a late payment provision where 45 days after the payment date, barnet would incur interest at the rate of 5% per week on any outstanding sums. there was also significantly a reciprocal obligation on jeancharm within that same clause that barnet would be entitled to a late penalty of 20 pence per garment per day; a total of 5,000 replicas had been ordered for each of the 1999/2000 and 2000/2001 seasons.82 the court of appeal unanimously held the clause to be a penalty. first and foremost jeancharm was decided after the high court’s decision in lordsvale but before cine bes and murray where the concept of commercial justifiability gained widespread judicial acceptance. in jeancharm, jacob j, delivering the leading judgment, relied exclusively on lord dunedin’s formulation of genuine pre-estimate as the determinative factor as to whether a clause was to be regarded as penal. 83 whilst 77 [1989] 1 wlr 1026. 78 [1993] ac 573. 79makdessi (sc) (n 1) [17], [18], [87]. 80 see also the australian high court decision in andrews (n 8). 81 jeancharm; county leasing; unaoil (n 13). 82 jeancharm (n 13) [3]. 83 ibid [11]. the penalty rule: a modern interpretation 58 lordsvale was discussed, jacob j interpreted colman j’s dicta narrowly and considered the decision justified only on the basis that on those facts “…the borrower was a risky borrower”.84 consequently, the reciprocal obligation on jeancharm within the clause had not been given adequate consideration. within the modern approach, provisions within a clause are generally weighed as a whole. for example, in azimutt-benetti, the court rejected submissions that the clause was a penalty because although “the clause places an obligation on the buyer, … it also places an obligation on the builder”.85 similarly in murray, arden lj considered that the disputed clause had advantages for both sides.86 the same conclusion could have been reached here jeancharm was obligated under that same clause to a penalty of 20 pence per garment per day had it been late in its delivery. thus, the purpose of the clause, to use the words of blair j in azimutt-benetti, was “to strike, or seek to strike, a balance between the interests of the parties”.87 reinterpreted in this way, the clause would certainly not be deemed a penalty. interestingly, even before the modern approach had fully developed, commentators had considered jeancharm to be “an exceptional case”.88 5.2.2 county leasing v east [2007] in this case, the defendant mr east, had entered into a long-term business loan with county leasing ltd., a company directed by mr and mrs kirkpatrick (who were also majority shareholders of the company). east and the kirkpatricks had known each other for over 25 years and had “done business on many occasions”.89 the loan agreement contained a certain clause 5 where, upon a failure to pay a specified instalment within 7 days of its due date, east would be liable to repay the principal and all interest over duration of the term of the loan (20 years).90 at the time of east’s default, the principle amount outstanding was £378,000 and repayment with interest would have cost east £1.2 million. 91 the high court judge deemed clause 5 to be a penalty and unenforceable, relying 84 ibid [16]. 85 azimutt-benetti (n 74) [26]. 86 murray (n65) [76]. 87 ibid [76] 88 h lal, ‘liquidated damages’ [2009] construction law journal 569, 571. 89 county leasing (n 13) [5]. 90 such a clause is best classified as an acceleration clause in that it accelerates, as oppose to increasing the liability of the debtor. 91 ibid [41]. the denning law journal 59 solely on lords dunedin and parmoor’s speeches in dunlop and obiter dicta by sir donaldson mr in the angelic star.92 there are two paths around this decision, neither which compromise our argument: the first is to argue that county leasing was decided without a proper understanding of the modern approach, the second is to confine the case to its facts accepting county leasing to be a commercial case concerning the penalty rule, but to take nuanced view that this decision was reached in light of east conducting business as a sole trader as opposed to through a limited company. regarding the judge’s reasoning, counsel for the claimant cited neither cine bes or murray as authority but rather relied on the consumer credit act 1974, arguing that the clause was not an “an extortionate credit bargain” and thus not a penalty.93 it was however emphasised that east was an experienced businessman, had entered into agreements with very similar terms as clause 5 with the claimants before, had access to legal advice before contracting and had been warned specifically by letter by county leasing to take legal advice before entering into the agreement.94 the judge failed to take such consideration into account and that the contract was freely entered into by parties of comparable bargaining power who had entered into similar agreements for many years. nor did the judge consider whether the “predominant purpose” of the clause was to deter breach, taking into account any possible commercial justifications, before he made the finding of a penalty clause. the decision was largely based on brief obiter dicta in the angelic star, a shipping case decided itself exclusively premised on the rigid dichotomy (“proposition 2 in the speech of lord dunedin”)95 developed from dunlop, a dichotomy that we criticised in part i, was equally doubted in murray and largely discarded by the supreme court in makdessi.96 alternatively, we might give the judge the benefit of the doubt and reconsider county leasing not as a true commercial case. if we view this case more so a consumer case as opposed to a commercial one, one would certainly consider any oppression as more oppressive towards east in principle. because east contracted into the loan agreement as a sole trader (as opposed to via a limited company) he was personally liable for any losses incurred, not having benefitted from limited liability had he formed and incorporated a company, the finding of a penalty clause can be 92 [1988] 1 llr 122. 93 county leasing (n 13) [86]. 94 ibid [113]. 95 ibid [115], [117]. 96 makdessi (sc) (n 1) [31]. the penalty rule: a modern interpretation 60 justified since potential personal bankruptcy is arguably more severe than a potentially failed business. furthermore, to elaborate on a point by zimmermann, 97 because an agreed damages clause places the debtor under a conditional obligation that is to take place in the future, the natural confidence in one’s ability to render performance often leads one to underrate the often gravely detrimental nature of a clause; on this view, the hubris and error of one sole trader may be viewed as more deserving of relief from the penalty rule than that of a larger company with multiple directors benefitting from limited liability. 5.2.3 unaoil v leighton offshore [2014] unaoil is the most recent instance of a judicial finding of a penalty clause taking place after the court of appeal’s decision in makdessi but before the supreme court’s overturning of that decision upon appeal. it is an exemplary example of the inconsistent emphasis placed on the concept of commercial justification. unaoil concerned a memorandum of agreement between leighton offshore ltd, a contractor and unaoil ltd, a subcontractor. both parties agreed that leighton would appoint unaoil as its subcontractor for the onshore construction work if it succeeded in its bid for a substantial oil infrastructure project in iraq.98 the agreement however also contained an agreed damages clause, clause 8.1, stipulating that if leighton did procure the oil project but did not adhere to the terms of their subcontract agreement, i.e. appoint unaoil as its subcontractor, it would pay an agreed amount of $40 million us dollars to unaoil. notably, the contract was amended afterwards, reducing the contract price from $75 million to $55 million dollars in a final attempt to make leighton’s bid more competitive; clause 8.1 however remained unaltered. leighton won the bid but eventually elected not to appoint unaoil as its subcontractor. unaoil sought to enforce the agreed damages clause whilst leighton argued that it was a penalty. eder j found the clause to be “extravagant and unconscionable with a predominant function of deterrence [sic] without any other commercial justification for the clause”. the most cogent criticism against this decision is the inadequate focus on the commercial realities of the agreement. eder j acknowledged, but did not address, the inclusion of the clause as a counterbalance to certain risks as a possible justification: in the course of evidence the chairman of unaoil, when questioned as to how the liquidated damages amount was 97 r zimmermann, the law of obligations: roman foundations of the civilian tradition (ch 4, 1996 oup) 106. 98 unaoil (n 13) [3]. the denning law journal 61 calculated, explained that “‘in iraq estimates are not estimates. things change…i just take a view and go forward’’ and “that the clause was considered a ‘sort of insurance for high profit in an area where other people see a perceived high risk.’”99 a separate criticism is that eder j premises his decision on how $40 million as an agreed damages would have been a genuine pre-estimate of the loss and not a penalty had the contract price remained at $75 million and hence if the contract price was reduced, it could no longer be a genuine pre-estimate and thus a penalty.100 the judge importantly conceded “the reason why the figure…was not reduced at the same time was not explained … perhaps … a mistake or an oversight. i do not know.”101 both parties clearly had the opportunity to amend the clause 8 when amending the contract price and having not done so, by all accounts had still agreed to the clause. yet without firmly establishing the clause was either due to an oversight (or mistake), eder j provided leighton with a very generous benefit of the doubt, at odds with the modern penalty rule and the predisposition that the courts are to uphold contractually fixed damages for breach; jackson j notably reiterated in alfred mcalpine that such a “predisposition is even stronger in the case of commercial contracts freely entered into between parties of comparable bargaining power.” 102 the unaoil decision is disappointingly stultifying and certain commentators have described the decision as a “trap for the wary”.103 5.3 final words an understanding of the penalty rule’s modern development has shown that the rule is in keeping with the needs of commercial parties. the new supreme court test in makdessi has clarified that broader interests (including commercial) need to be given adequate consideration. any concerns over legal uncertainty and inconsistent application have thus been alleviated, and any remaining concerns that might arise from the overly cautious can be answered by shrewd drafting around the doctrine by either making any sums payable on an event other than breach or to frame the clause as a primary obligation. 99 ibid [18]. 100 ibid [71]. 101 ibid. 102 alfred mcalpine (n 56), [48](3) (jackson j). 103 v bange, ‘reducing risk with liquidated damages’ [2015] construction law 6, 7. the penalty rule: a modern interpretation 62 6 part iii: a modern rationalisation it is important to note that commercial parties are not concerned with the existence or abolishment of the penalty rule either way: the businessman almost exclusively wishes to know whether agreed damages contained in his contract will be upheld by the courts or deemed unenforceable as a penalty (and if so, how he might protect himself); 104 earlier discussions should hopefully have assuaged his concerns that the courts rarely make the finding of a penalty in commercial contracts. the rare finding of a penalty, however, does not mean the rule has entirely lost its bite; lord halsbury’s example of a penalty payment of a million pounds for a building contract worth fifty pounds would in all likelihood still be deemed a penalty clause.105 the discussion here is primarily academic and aims to answer the pundit’s inquiry: if the penalty rule is scarcely used, why not abolish it altogether? the answer lies beyond the rule itself and in an examination of other areas of private law. within english private law, the modern penalty rule is not only not an anomaly, but is perfectly coherent and should be rationalised as a manifestation of important principles within the law of obligations. this is a bold and arduous disagreement with diplock lj in robophone who described the rule as “anomalous” and famously declared: “i make no attempt, where so many others have failed, to rationalise this common law rule. it seems to be sui generis.”106 the penalty rule encapsulates three related principles that we will summarise as the aversion towards oppression, punishment and unfairness. consistency within the law is intrinsically valuable: support for the current english position on punitive damages, specific performance and unjust enrichment logically lends support to the existence of a penalty rule as they rest upon the same three principles encapsulated by the penalty rule. supporting one but not the other is analogous to having a window removed from one’s home and leaving a hole in the wall; when a storm comes, even if all the other windows are shut, their effectiveness in keeping the room dry will be greatly diminished.107 104 p devlin, ‘the relation between commercial law and commercial practice ’ [1951] modern law review 249, 254. 105 clydebank engineering v castaneda [1905] ac 6, 10. 106 robophone (n 6). 107 for a lack of a better example. the denning law journal 63 this paper will not discuss the equity of redemption or relief from forfeiture as noted by the supreme court,108 but the analysis can equally be extended to such doctrines. 6.1 the law on specific performance the order for specific performance is an equitably remedy granted at the discretion of the courts. chitty defines specific performance as “the remedy available in equity to compel a person actually to perform a contractual obligation.”109 this remedy however is rare in practice and even rarer in commercial cases.110 furthermore it will not be binding on the courts even if parties agree to it in the contract as “it is not the function of the court to be a rubber stamp”.111 lord hoffmann’s judgment in co-operative insurance society v argyll stores (argyll) sheds light onto english law’s reluctance towards specific performance.112 there are references to all three principles in his lordship’s speech. without explicitly acknowledging anti-oppression as its proper basis for limiting specific performance, it is a sentiment prevalent throughout the judgment. in explaining “constant supervision” as a reason why courts should limit granting specific performance, lord hoffmann explained that due to the “heavy handed nature” of the court’s power (its enforcement mechanism of finding the defendant in contempt of court), it would be unacceptable to make the defendant run his business under the “sword of damocles”.113 perhaps his lordship may have fared better to acknowledge anti-oppression as a separate reason for limiting specific performance,114 but the principle against oppression was evidently a factor behind his decision. further on, his lordship acknowledges that whilst undoubtedly it is the defendant has put himself in such a position by his breach of contract, “the purpose of the law of contract is not to punish wrongdoing …”115 this is equally consistent with the law’s position on punitive damages. whilst english law’s current position on specific performance has its 108 makdessi (n 53). 109 h beale, chitty on contracts (33rd edn, sweet & maxwell 2015) para 27-004. 110 whincup (n 16) 373. 111 quadrant visual communications v hutchison [1993] bclc 442 [452] (butler-sloss lj). 112 [1998] ac 1. 113 ibid [13]. referring to the greek anecdote of living in constant fear of negative consequences. 114 a burrows, ‘judicial remedies’ in principles of the english law of obligations (oup 2015) para 4.192. 115 co-operative insurance (n 112) 15. the penalty rule: a modern interpretation 64 critics, even critics such as rowan who have persuasively argued in favour of upholding agreed remedies, acknowledge there is some force to this principle against oppression, especially when the specific performance sought is personal in character such as in employment contracts.116 6.2 the law on punitive damages punitive (or exemplary, vindictive) damages go beyond normal compensatory damages as a form of punishment against the defendant. specifically addis v gramophone established that punitive damages could not be recovered for breach of contract.117 the house of lord’s decision in rookes v barnard clarified the law regarding punitive damages for civil wrongs laying down only two narrow categories where punitive damages could be recovered at common law;118 in any case, punitive damages have been described by mcgregor as “effectively outlawed”.119 lord devlin, in his leading judgment, expressed three considerations for the court’s to consider regarding exemplary damages and the second is especially of note. in his second consideration, his lordship found that exemplary damages often amount to greater punishment had the conduct actually been criminal, and this would all have been imposed without the safeguard that criminal law provides an offender with (e.g. right to trial by jury). lord reid’s speech in broome v cassell echoes this sentiment: “to allow pure punishment in this way [exemplary damages] contravenes almost every principle which has been evolved for the protection of offenders”.120 professor street similarly identified as a critique against exemplary damages that, the “sharp cleavage between criminal law … and the law of torts and contract … is a cardinal principle of our legal system.”121 reflecting back on penalty clauses, there is certainly a common underpinning between exemplary damages and lord neuberger and sumption’s comment in makdessi that: “the innocent party can have no proper interest in simply punishing the defaulter”.122 rowan believes that 116 s rowan, ‘for the recognition of remedial terms agreed inter partes ’ [2010] law quarterly review 448, 472. 117 [1909] ac 488; cf a-g v blake [2000] ukhl 45. 118 [1964] ac 1129, 1227. 119 h mcgregor, ‘restitutionary damages’ in p birks (ed) wrongs and remedies in the twenty-first century (clarendon press 1996) 203. 120 [1972] ac 1027, 1087 121 h street, principles of the law of damages (sweet & maxwell 1962) 34-6. 122 makdessi (sc) (n 1) [32]; (italics supplied). the denning law journal 65 the introduction of exemplary damages for breach of contract would require the reconsideration of other rules within contract law, including the penalty rule and the restricted availability of specific performance, amongst others.123 comparing the penalty rule with punitive damages, rowan believes “this [penalty rule] [similarly] constitutes a resounding rejection of deterrence and punishment as acceptable aims in the law of contract.”124 6.3 the law of unjust enrichment the english legal position against unfairness links the penalty rule with infrequent specific performance and the law of unjust enrichment. it is a qualified notion however, as lord roskill explains: “it is not and never has been for the courts to relieve a party from the consequences of what may in the event prove to be an onerous or possibly even a commercially imprudent bargain.”125 within the penalty rule, the principle against unfairness is subsidiary, applicable only to secondary obligations in the same way there will normally be no claim in unjust enrichment so long as a contract subsists.126 the principle against unfairness, that no party, even though innocent, should be allowed to unfairly enrich himself at the expense of another, underlies quantum meruit claims in void contracts such as mohammed v alaga 127 and in cases of non-existent contracts 128 and is a longstanding principle of english law that can be traced as far back to the 18th century foundational case of moses v macferlan.129 even where the claimant is in breach, the innocent party is not allowed to retain the benefits if not provided for under the contract. for example in dies v british and international mining, stable j allowed the recovery of part of the purchase price by the claimants who, in breach of contract, refused to take delivery of goods and pay the rest of the purchase price. stable j’s fortified his view by referencing the penalty rule, and explained that it would be a “manifest defect in the law” if the vendor 123 s rowan, ‘reflections on the introduction of punitive damages for breach of contract’ [2010] oxford journal of legal studies 495. 124 ibid 509. 125 export credits guarantee v universal oil [1983] 1 wlr 399, 403. 126 c mitchell, ‘unjust enrichment’ in a burrows (ed) principles of the english law of obligations (oup 2015) para 3.226. 127 [1999] 3 all er 699. 128 british steel v cleveland engineering [1984] 1 all er 504. 129 (1760) 97 er 676. the penalty rule: a modern interpretation 66 could retain both the goods and the money irrespective of whether the money corresponded to the amount of actual damages.130 this principle is equally evident behind the restricted availability of specific performance. in argyll, lord hoffmann was convinced (by millett lj’s reasoning) to refuse specific performance due to the injustice that might arise “by allowing the plaintiff to enrich himself at the expense of the claimant” because the “loss which the defendant may suffer through having to comply with the order … may be far greater than the plaintiff would suffer from the contract being broken.”131 7 conclusion we have thus come full circle. initial doubts over the penalty rule have emerged into an appreciation of the rule’s modern role and underlying justifications. part i examined the background leading to the supreme court decision in makdessi and the judgment itself. it was argued that the reformulated test would be a high threshold for parties attempting to prove that a clause was penal. the justifications offered against abolishing the doctrine were not altogether convincing and the “legal consistency” justification required furthered elaboration. part ii considered the origins and development of the “modern” penalty rule. the decisions in cine bes and murray firmly established commercial justifications as a factor when arguing over the penalty rule before the courts. as a matter of authority, the courts have almost entirely refrained from applying the rule. the varying emphasis placed on the aspect of commercial justification however, had unfortunately led to its inconsistent application with its entailing legal uncertainty; we reconciled the three isolated instances with the modern norm. part iii rationalised the rule’s continued existence in spite of its limited application. it was shown that the penalty rule is not anomalous, but rather a constituent of a rational set of private law principles. brief discussions and comparisons were made with english law’s position on specific performance, punitive damages, and certain forms of unjust enrichment. to contrast professor teitel's remarks in 1988 that the penalty rule, which lacked the certainty of enforcement yet placed an undue premium on draftsmanship, gets the “worst of both worlds”,132 the modern penalty 130 [1939] 1 kb 724, 744. cf sumpter v hedge [1898] 1 qb 673. 131 argyll (n 112) 15. 132 gh treitel, remedies for breach of contract: a comparative account (oxford university press 1998) 233. the denning law journal 67 rule by delineating its narrow application allows commercial parties to freely conduct business and include agreed damage clauses in their contracts as needed without undue fear of judicial intervention. on a theoretical level, the rule aligns itself with other doctrines within private law and serves as a lighthouse, illuminating important principles that run through the english law of obligations. for the purposes of right to self-determination, how does one define people in context of kashmir iii obituary gordon goldberg, llb, ma, barrister, (1938-2015) former reader in law and master of moots at the university of buckingham died on 13 june 2015, the feast day of saint anthony of padua. the university received many tributes from alumni and former academic colleagues. we cannot print them all but we are sure our readers would wish to share in some of them. “in these days of powerpoint presentations, virtual learning environments, research excellence frameworks, student surveys, peer review, personal developments plans, and all the bureaucratic paraphernalia surrounding teaching in higher education, one can despair that no room is left for inspirational teachers. perhaps gordon goldberg and his like are a dying breed, but it could never be said of gordon that he went quietly. in his time at the university of buckingham, he left an indelible mark on a whole generation of law students. he will also long be remembered in the town if only for riding his bicycle everywhere with his academic gown flying in the wind behind him. central to understanding gordon‟s power and influence were two loves, his love of the common law (he never really reconciled himself to britain‟s membership of the european union) and his love of and respect for students (for whom he could have infinite time and care). from both he expected a beauty and precision obituary iv of language. all of this was seen, not just in the formal teaching environment, but also in his conduct as master of moots. i doubt we will see his like again.” (deputy vice-chancellor, professor alistair alcock) “out of my law lecturers at buckingham, he stood out as kind, engaging, non-judgemental, thoroughly decent and knowledgeable. i have never forgotten the genuine kindness and respect i received from mr gordon goldberg” (donna i. achara, alumna) “like lord denning, gordon respected the power of language. his unique use of english both ancient and modern was developed into a unique, distinct and memorable prose. gordon was passionate about law, its impartiality and its justice. unsurprisingly, the case of prohibitions del roy [1607] ewhc j23 (kb), in which sir edward coke in challenging the power of king james asserted that cases were to be decided „but by the artificial reason and judgment of law‟ was central to gordons quest that law was above no man. he had a reputation far and wide and when the honourable justice debbie mortimer was appointed to the federal court of australia in 2013 it was mentioned in the speech given in her honour that in 1987, she was articled to gordon goldberg of goldberg and window solicitors, richmond. in her address when she was sworn in she said of gordon goldberg „he is a formidable lawyer and i learned a great deal from him. he deplored the use of pro forma documents and precedents, instead advising me, "dear, go and read the relevant legislation and any court rules and then read the cases and work it out". reading the relevant legislation and any court rules, then reading the cases and working it out, is, i have found, rather a sound general approach to the practice of the law‟. gordon was not only a man of reason he was also a man of passion for teaching and will also be remembered for his generosity of spirit and love for his students” (dean of law, professor susan edwards) “he took the „academic stage‟ of legal education seriously and would never compromise on its demands. it meant – and does mean – that students studying law understand those key principles that give it its very strength and purpose. this is not always an easy task to undertake. one can make the distinction between the obscurity of expression and the expression of obscurity. gordon was never guilty of the former, but viewed the latter as pardonable. he was, after all, the denning law journal v endeavouring to explain difficult concepts. difficult though they were, they were still well worthy of the effort. i am sure that many a law student – just as i did – finally understood, finally realised the wisdom of gordon‟s words long after they were spoken.i am sure that he did know – or at least suspect – what a colossal impact he had had on generations of lawyers who graduated from all the institutions which he adorned”. “he was a man, take him all in all, i shall not look upon his like again.” hamlet, act 1 sc 2, 1, 187. (owain blackwell, former academic colleague) the denning law journal 93 denning law journal 2019 vol 31 pp 93-121 evaluation of the rule of law as a prerequisite to the right to development in africa simisola akintoye* ayobami joshua** * senior lecturer in law, de montfort university law school. ** senior lecturer in law, adekunle ajasin university, ondo state, nigeria. 1 judge keba m’baye (inaugural address of the third teaching session of the international institute of human rights (july 3, 1972)) 5 human right journals, 503, cited in stephen marks ‘the human right to development: between rhetoric and reality’ (2004) 17 harvard human rights journal 137-168 at 138. 2 salim bashir magashi, ‘the human right to development in nigeria’ (lld thesis, faculty of law of stellenbosch university 2006) 2. 3 ibid. 4 joseph m isanga, ‘rule of law and africa development’ (2016) 42 north carolina journal of international law and commercial regulation 57. 5 ibid., 58. introduction the right to development appears to mean different things to many people. judge keba m’baye, a distinguished senegalese jurist, is credited with initiating the discourse on the concept of ‘development’ as a human right in a 1972 lecture held at the international institute of human rights in strasbourg, where he asserted that ‘every man has a right to live and live better’.1 to promote development and eventually the dignity of human beings, human rights and development have become two mutually related ideas that remain critical for any genuine, equitable global structuring or restructuring.2 the disproportionate pattern of the global economic system in the aspect of international economic development, particularly glaring on the african continent, has dominated several academic discussions since the period of decolonisation of the less developed countries of the world and still remains so till date.3 although african continent has seen a measure of economic growth since the 1990s, yet most of this growth is unsustainable and tenuous.4 simply put, africa is far from a genuine economically developed region; and one of the significant reasons for this is the absence of true foundation for sustainable economic development, particularly the rule of law.5 94 evaluation of the rule of law as a prerequisite to the right to development in africa as noted by currot: the rule of law, by providing the framework for protecting private property and individual freedom, creates the stability and predictability in economic affairs necessary to promote entrepreneurship, saving and investment, and capital formation. it is nonsensical to expect … economic development in africa without addressing the institutional factors, such as the lack of rule of law, which are responsible for africa’s failure to develop in the first place.6 it logically follows that in the absence of the rule of law, the prospects of the application of the right to development as a human right to the many developmental challenges faced on the african continent are dim, when viewed against the background of the developmental crisis on the continent of africa with its negative trickling down effect on the human worth and dignity of the overwhelming majority of the populace who are pitifully enmeshed in abject poverty, pauperisation, maternal mortality, diseases, hunger and malnutrition. this paper shall provide the reasons that undergird this perspective; it is obvious that the apparent economic development disparities among nations in the globalised world have produced severe socioeconomic consequences that challenge the universal concepts of equality, equity and fairness; concepts that are at the heart of both human rights and development discussions.7 human rights, development, right to development and the rule of law human rights human rights are those basic rights which all persons everywhere and at all times equally have by virtue of their status as human beings.8 article 1 of the universal declaration on human rights states that all human beings are born free and equal in dignity and rights.9 it follows therefore that every human is entitled to enjoy 6 nicholas adam currott, ‘foreign aid, the rule of law and economic development in africa’ (2010) 11 ubotsljp 14. 7 arjun sengupta, ‘the human right to development’ in bard a andreassen and stephen p marks (eds), development as a human right: legal, political and ethical dimensions (cambridge 2008) 13–15. 8 william idowu, ‘the special right, theory within the context of human rights: how not to reconstruct sexual equality’ (2012) 3 human rights review 1. 9 united nations, ‘universal declaration of human rights’ (united nations, 1948) the denning law journal 95 basic fundamental human rights that are universal in nature.10 there are diverse theories and theorisations about human rights. in intellectual discourses about the rule of law, the polemics usually swing between the natural law scholars and the legal positivists.11 to the legal positivist, human rights are products of law duly enacted by an authority empowered by law to do so; and thus commending people to obey or otherwise attract sanctions; in consequence, it is bereft of any moral or religious influence. conversely, the naturalists argue that human rights accrue to persons because they are human beings; they are ‘inherent, fundamental and inalienable, universal, eternal and unalterable moral truths which attach to all human beings by virtue of their humanity.’12 the latter view represents the most acceptable definition of human rights and is reflected in the international human rights conventions. as an instance, the office of the united nations high commissioner for human rights (ohchr) defines human rights as: inherent to all human beings whatever over nationality, place of residence, sex, nationality or ethnic origin, colour, religion, language or any other status. we are all equally entitled to our human rights without discrimination. these rights are all interrelated, interdependent and indivisible.13 it has been said that the above definition captures the entire gamut of the theoretical, idealist and practical nature of human rights.14 the above descriptions suggest that human rights are essentially ‘law based’, in that a right should derive its status, relevance and enforceability from the law, even though it originated from somewhere else. this is in line with the argument <www.un.org/en/document /udhr/> accessed 6 october 2018. 10 yemi akinseye-george, improving judicial protection of human rights in nigeria (cslj, abuja 2011) – cited in olusegun, o and ajigboye, o. “realizing the right to development in nigeria: an examination of legal barriers and challenges.” [2015] journal of sustainable development, law and policy 6 (1): 145-168. 11 see generally margaret mcdonald, ‘natural rights’ in jeremy waldron (ed), theories of rights (oup 1984). 12 ibid. 13 office of the high commissioner for human rights, ‘what are human rights’ (2015) https://www.ohchr.org/en/aboutus/pages/frequentlyaskedquestions.aspx accessed on 12 december 2019. 14 magashi (n 3) 19. https://www.ohchr.org/en/aboutus/pages/frequentlyaskedquestions.aspx https://www.un.org/en/document /udhr/ 96 of the positivists who postulate that to be enforceable, a right must be derived from a recognised source.15 development the term ‘development’ is a problematic concept.16 it has been one of the most ambiguous terms in intellectual discourses and it continues to generate controversies among scholars in related disciplines. in general terms, it is multidimensional, and could be viewed from political, economic and social angles.17 development has been conceptualised as a multidimensional process, involving major changes in social structures, popular attitudes and national institutions, as well as the acceleration of economic growth, the reduction of inequality and the eradication of absolute poverty.18 rodney, however, sees beyond people’s perception of development, and conceived development in its economic, political and social terms. in his view, development requires that emphasis be laid on both ‘increase in output and changes in the technical and institutional framework by which it is produced’.19 put differently, development is basically about the process of change which lies around the different facets of life.20 amartya sen sees development in terms of both physical and psychological realities.21 the physical reality of development could be created in the existence of visible and concrete edifice like roads, hospitals, schools and factories among others. psychological reality consists in the capability of the citizens to enjoy the utility of physical development.22 15 most human rights originated from morality and religion. however, they only become recognised and enforceable when they gain a legal endorsement. a good example is the incorporation of human rights in the universal declaration of human rights (udhr) which was adopted on 10th december 1948. perhaps without the declaration, modern societies would have been denuded of human rights. 16 samson ayobami joshua, ‘the relevance of the rule of law to good governance and development in nigeria’ (phd thesis, faculty of law obafemi awolowo university 2017) 39. 17 ibid. 18 michael paul todaro, economic development in the third world (4th edn, longman 1989) 23. 19 walter rodney, how europe underdeveloped africa (bogle—l’ourverture 1972) 47. 20 ibid. 21 amartya sen, development as freedom (oup 1999). 22 ibid. evaluation of the rule of law as a prerequisite to the right to development in africa the denning law journal 97 the popular thinking in the modern world is to conceive development in terms of economic growth of a country, and the gross domestic product (gdp) is often used as the parameter to measure it. for example, the united nations development programme (undp) in one of its human development report (hdr) suggests that development is an end, while economic growth is the means to such end.23 furthermore, the world bank perceives ‘development’ as an entire range of changes in a particular society or social entity. it considers the test of development, mainly, to be the needs to improve quality of life, provide better education, create higher standards of life and nutrition, reduce poverty, promote cleaner environment, guarantee equality of opportunities and sustain individual freedom and richer cultural life.24 importantly, the united nations declaration of right to development (undrd) in its preamble sees development as a comprehensive process involving the economic, social, cultural and political processes; with the objective of sustainable improving people’s well-being, based on their meaningful participation in the development process.25 right to development generally, the international bill of rights comprising the 1948 universal declaration of human right (udhr), the international covenant on civil and political rights (iccpr) and the international covenant on economic, social and cultural rights (icescr), both from 1967, are acknowledged as precursors to the right to development (rtd).26 although none of the earlier mentioned international instruments expressly mentions the rtd, their provisions have implicitly27 promulgated the rtd into existence. a good example is article 22 of the udhr which provides for the rights of every individual in the society to social security and realisation of his economic, social and cultural rights, which are deemed indispensable for their dignity and free development of his personality.28 invariably, rtd 23 undp hdr (1996). 24 quoted in professor bolaji owasanoye, ‘rule of law and national development’ in epiphany azinge and bolaji owasanoye (eds), rule of law and good governance (nials, 1999) 309. 25 magashi (n 3) 31. 26 olusegun and oyeniyi (n 11) 148. 27 olajumoke o oduwole, ‘international law and the right to development: a pragmatic approach for africa’ (inaugural lecture as professor to the prince clause chair in development and equity 2013/2015, the hague, may 2014). 28 see article 22, udhr <www.ohcr.org/en/udhr/documents/udhr_translation/ eng.pdf/> accessed 6 october 2018. https://www.ohcr.org/en/udhr/documents/udhr_translation/eng.pdf/ https://www.ohcr.org/en/udhr/documents/udhr_translation/eng.pdf/ 98 has both external and internal dimension. the external dimension addresses inequality of the global political economy reflected in great inequities. thus, this aspect of the right engages the responsibilities of states internationally when acting individually or collectively. the internal dimension of the right focuses on the obligations of every state to initiate domestic policies that promote the realisation of fundamental rights of all its citizens. margot salomon29 has observed that the rtd derives its ‘intellectual origins and legal claims’ jointly from article 28 and articles 55 and 56 of the united nations charter. some other treaties with development components include the international convention on the elimination of all forms of racial discrimination (icerd),30 convention for the prevention and punishment for the crime of genocide (cppcg)31 and the international convention on the suppression and punishment of the crime of apartheid (spca),32 among others. originally perceived as a ‘third generation’ or ‘solidarity right’33 the rtd was explicitly established by article 1(1) of the undrd which states: the right to development is an inalienable human right by virtue of which every human person and all people are entitled to participate in, contribute to and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.34 furthermore, articles 2(3) and 3(3) impose a duty on the states to design appropriate national development policies and to cooperate with each other in 29 margot e salomon, global responsibility for human rights: world poverty and the development of international law (oup 2007). 30 adopted and opened for signature and ratification by general assembly resolution 2106 (xx) of 21 december 1965 entry into force on 4th january 1969. https://www.ohchr.org/en/professionalinterest/pages/cerd.aspx 31 adopted by the general assembly of the united nations on december, 1948. 32 adopted by the general assembly of the united nations on 30 november, 1973. 33 stephen marks, ‘the human right to development: between rhetoric and reality’ (2004) 17 harvard human rights journal 137. in the 1970s and 1980s the rtd was introduced as one of several rights belonging to a third ‘generation’ of human rights. the first ‘generation’ consisted of civil and political rights conceived of as freedom from state abuse. the second ‘generation’ consisted of economic, social and cultural rights claims made against exploiters and oppressors; while the third ‘generation’ consisted of solidarity rights belonging to peoples and covering global concerns such as development, environment, humanitarian assistance, peace, communication and common heritage. 34 united nations charter < www.un.org/en/documents>/ accessed 6 october 2018. evaluation of the rule of law as a prerequisite to the right to development in africa https://www.ohchr.org/en/professionalinterest/pages/cerd.aspx http://www.un.org/en/documents the denning law journal 99 ensuring development and eliminating obstacles to development respectively.35 it is now commonly acknowledged that rtd alludes to both an individual and a collective right.36 besides, the holders of the collective right are the people, to whom are owed obligations by the national government and international cooperation of governments to translate this right to a concrete reality for the people to enjoy.37 rule of law because of its significance, the concept of the rule of law has attracted a great deal of attention from scholars down the countries.38 the phrase ‘rule of law’ emerged as a theoretical concept formulated and debated by philosophers and legal theorists, and at the same time, it is a legal concept used by lawyers and judges.39 its meaning is informed by both moral and legal theorists who investigated the abstract moral and political goals contained in the concept.40 accordingly, the rule of law is not simply ‘a set of mechanical rules to be followed; it is rather a set of loose, vague and indeterminate principles; which require interpretation in the light of the values which it is designed to realize.’41 because of its amenability to varying definitions and interpretations by philosophers and legal theorists, the literature on the rule of law is diverse and extensive.42 brian tamanaha has stated that the rule of law means that government officials and citizens are bound by, and therefore should abide by law.43 35 ibid. 36 oduwole (n 28) 5. 37 ibid. 38 randall peerenboom, ‘the future of rule of law: challenges and prospects for the field’ (2009) 1 hague journal on the rule of law 7. 39 ibid. 40 ibid. [9], in his article titled: ‘the future of the rule of law: challenges and prospects for the field’, r peerenboom explains that as the field has expanded, so have the definitions of the rule of law expanded. he stated that many definitions, in circular fashion, have been engrafted to the rule of law, in view of the objectives which it is meant to achieve, such as the protection of property rights, low crime rates and also democracy and political rights – see also francis fukuyama, ‘transitions to the rule of law’ (2010) 2(1) journal of democracy, 33–44; adriaan bedner, ‘an elementary approach to the rule of law’ (2010) 2 hague journal of the rule of law, 48–74. 41 funmilola tolulope abioye, ‘rule of law in english speaking african countries: the case of nigeria and south africa’ (phd thesis, faculty of law university of pretoria 2011) 160–161. 42 lon l fuller, the morality of law (yale university press 1964), 41. 43 brian z tamanaha, ‘the history and elements of the rule of law’ (2012) 2 singapore 100 as stated earlier, the rule of law has remained a dynamic concept and the tenets encapsulated in the concept are limitless;44 as such, it embraces, in a narrower sense, terms such as due process, procedural justice and legal formality. in accordance with the foregoing context, dennis lloyd highlighted the basic tenets of the rule of law to include the following:45 (a) independence of the judiciary independence of the judiciary is synonymous with freedom from interference or pressure from the executive and legislative arms of government, along with friends, relations and peers. an independent and impartial judiciary is basic to the promotion of the rule of law; in that, it is the judiciary that has the responsibility of ensuring that both the government and the governed act in accordance with the laws. judicial independence finds justification in the requirement of the separation of powers and the promotion of the rule of law.46 (b) speedy trial of accused persons the issue of speedy trial of persons accused of criminal offence is central to the concept of rule of law. the axiom ‘justice delayed is justice denied’ is quite valid. delay in criminal trial would fetter the freedom of the accused unnecessarily. besides, delay defeats the purpose of justice as time, resources, and opportunities are needlessly wasted. it amounts to a loss, not only to the society, but to the accused and the complainant/victim. (c) judicial review another significant tenet of the rule of law is the principle of judicial review. it implies that there exists adequate judicial control over executive and legislative actions. in practice, it means no member of the executive arm of government journal of legal studies, 232–233. 44 professor francis chijioke nwoke and professor dakas cj dakas, ‘the rule of law as a cornerstone of democracy and good governance’ (proceedings of the 39th annual conference of nalt 2003) 80. 45 lloyd dennis, the idea of law (penguin books 1964) 161–164. 46 david pollard, neil parpworth and david hughes, constitutional and administrative law (4th edn, oup 2007). evaluation of the rule of law as a prerequisite to the right to development in africa the denning law journal 101 shall exercise his executive function where there is no legal foundation for such act; whenever he does, the court has the power to nullify such act. in the same vein, the legislature shall not pass any law which is ultra vires its lawful powers. were the legislature to offend, the court will strike down the offending legislation.47 (d) adequate legal assistance for the indigent it is also important that adequate assistance be given by the state to indigent citizens, who are accused of crime but are too poor to afford the cost of getting a good defense counsel. the tenet of equality of all persons before the law can only be well served if this safeguard exists. (e) freedom and independence of advocates rule of law thrives better in a society where those charged with the duty of advocacy enjoy freedom and independence. today, the persons, who by training and experience, are charged with the duty of advocacy are lawyers; they occupy an eminent position in determining, in every society, the fate of the rule of law. without a strong, virile, vibrant, independent, respected, fearless and research-oriented bar, the rule of law can hardly thrive.48 (f) the principle of presumption of innocence another safeguard of the rule of law is the principle that every person accused of committing an offence shall be presumed innocent until he is proven guilty. furthermore, the principle states that no person shall be guilty of an offence which is not specifically laid down in some law established prior to the date the alleged offence was committed.49 this expansive view of the rule of law has been adopted by most modern countries, particularly constitutional democracies, and the tenets are carefully enshrined in their various constitutions. 47 brian z tamanaha, on the rule of law (cambridge university press 2004). 48 mehr chand mahajan, looking back: the autobiography of mehr chand mahajan, former chief justice of india (har-anand publication 1963). 49 this principle is expressly enshrined in the constitutions of most common law countries. for example, see s 36 (5), (8) and (12) of the 1999 constitution of the federal republic of nigeria. 102 the relationship between human rights, development and the rule of law in the context of rights-based approach to development human rights and development experience has shown that no development regardless of how well designed and conceptualised can flourish without same form of legal prescriptions.50 arguably, law and development are two mutually inclusive concepts.51 it is in recognition of this fact that united nations declaration of right of development (undrd) defines development as a human right.52 it has been stated earlier in this study that human right are those basic rights which all persons everywhere and at all times equally have by virtue of their status as human beings; it follows therefore that every human is entitled to enjoy basic fundamental human rights that are universal in nature. when viewed from this angle, it is logical to conclude that the right to development considers not only the marriage of human rights and development but also that development is in itself a human right.53 it is in this regard that the millennium development goals (mdgs), the new partnership for africa’s development (nepad) initiatives as well as the renewed sustainable development goals (sdgs) initiatives all have human rights undertones. rule of law and development it has been argued that law can only function as a tool of development if it functions as it ought to, by imposing meaningful restraints on government actors and in limiting arbitrary state action;54 obviously the relationship between rule of law and (economic) development cannot be overemphasised. seth w norton has observed that property rights are necessary for growth.55 he further examines empirical research that demonstrates that improved specified property rights 50 magashi (n 3) 32. 51 mamman lawan, ‘law and development in nigeria: a need for activism’ (2011) 55 jal, 59–85. 52 article 1 undrd. 53 magashi (n 3) 33. 54 randall peerenboom, china’s long march toward rule of law (cambridge university press 2002). 55 seth w norton, ‘poverty, property rights and human well-being: a cross national study’ (1998) 8 catoj 233. evaluation of the rule of law as a prerequisite to the right to development in africa the denning law journal 103 indicate higher levels of human development56 and that there is compelling proof that enhanced property rights greatly reduce the degradation of the world’s poorest people; whereas weak property rights increase the degradation of poor people.57 in the same vein, tamanaha posited that certainty, predictability and security play a key role in (economic) development.58 the relevant question here is will african countries (the focus of this study) achieve development if they adhere to the rule of law? right-based approach to development agenda the milestones in the evolution of the universal right to development and later rights-based development are well documented in the literature, and there is no need to dwell extensively on that in this study. the right to development (rtd) was explicitly established by article 1(1) of the united nations declaration of right to development (undrd), which guarantees, among other things, that right to development is an inalienable right of every human person. although it is now commonly acknowledged that this right refers to both an individual and a collective right, and that the collective right is vested in the people with a corresponding obligation resting on national governments, as well as a duty of international cooperation among states; yet right from the commencement of the rtd, there had arisen, between the developing and developed countries of the world, an argument about the holder of the right conferred by the rtd and those obliged to carry out the duty created by the right. the developing countries have taken the position that they were the right holders while the developed countries were the duty bearers (that is obliged 56 ibid. [234]. 57 ibid. 58 brian tamanaha, a concise guide to the rule of law (st. johns legal studies 2007). tamanaha stated the above three prerequisite features of law that satisfies the demands of the concept of rule of law. he further argues that one function of the rule of law is to impose legal restraints on government (i) by requiring compliance with existing law, and (ii) by imposing legal limits on law-making power. this thesis finds supports in joseph raz ‘the rule of law and its virtue’, (1977) 93 l.q. rev, 198–201 where raz identifies eight principles of the rule of law; viz (i) laws should be prospective, open and clear; (ii) laws should be relatively stable; (iii) the making of particular laws (legal orders) should be guided by open, clear, general rules; (iv) the independence of the judiciary must be guaranteed; (v) the principles of natural justice must be observed; (vi) courts should have review powers over the implementation of the principles of the rule of law in respect of administrative action and legislation; (vii) courts should be easily accessible; and (viii) the discretion of law enforcement agencies should not be allowed to pervert the law. 104 to perform the duty created by the rtd in favour of the developing countries). in effect, developed countries have largely continued to refuse interpretations of the undrtd (that legally require them to give aid to particular developing countries, while developing countries continue to demand for more aid and concessions, a fairer international trade climate, access to technology and debt relief from developed countries on the ground that they (i.e. developing countries) face daunting development problems as well as potent threat of marginalisation in the globalisation era. at this point, it is needful to consider the nature and content of rtd. the right to development the right to development means that development is, itself, a human right and thus it prescribes the manner by which development can be viewed from the human rights perspective. the content of the right to development includes participation, international co-operation, self-determination, good governance, and equality of opportunity, among others.59 to start with, the concept of participation suggests that individuals, groups and peoples should get involved in development activities, thereby making it possible for them to have the right to decide collectively and elect their own representative organisations.60 it is also important that they have control over those fundamental choices on issues affecting them and engage in all those mechanisms related to their welfare.61 as such, every form of inequality or discrimination on the grounds of sex, ethnicity, disability, religion and every other kind that could negatively impinge on the enjoyment of their human rights should be rejected. it remains to be seen whether this is the reality in the international community of states, particularly in less developed countries (including african countries). moving on to international co-operation, the united nations by virtue of its charter acknowledges the duty of international co-operation among states. in that context, international community of states and multinational bodies are required to co-operate to promote and enforce the human rights of all persons.62 the implication of this is that a state cannot act alone, that is, without giving 59 magashi (n 4 ) 123. 60 olusegun and oyeniyi (n 12) 151. 61 ibid. 62 irene hadiprayitno, ‘poverty, the right to development and international human rights law’ (2005) ssrn 2004 <http://ssrn.com/abstract=669227> accessed 28 march 2019. evaluation of the rule of law as a prerequisite to the right to development in africa http://ssrn.com/abstract=669227 the denning law journal 105 consideration to how its policies would have impact on other countries. the impact of the policies and practices of the developed countries on the less developed countries and vice versa, and the reaction of both necessitates international co-operation.63 a good illustration of this is foreign aid from developed countries to the needy less developed countries. the most important questions, however, is how well have such aids translated to better development for the recipient countries to foster genuine co-operation between the donor-developed countries and the developing countries? the united nations declaration on the rights to development (undrd) maintains that development connotes the full realisation of the right of peoples to self-determination, and by virtue of that right, they can pursue their economic, social and cultural development without limitations.64 self-determination in this sense is particularly significant to developing countries, (which largely include african countries), most of which are still economically and, to some extent, politically dependent on the developed countries, some of which once colonised them. governance connotes the traditional processes and institutions by which a given country exercises power. this embraces the means by which governments are chosen and replaced, the ability of the government to initiate and effectively execute policies and the measure of respect the citizens and the government have for the institutions established to actualise economic and social relations.65 according to its 1997 yearly report, the united nations development program (undp) acknowledges participation, transparency, responsiveness, consensus orientation, equity, effectiveness and efficiency, accountability and strategic vision as core characteristics of good governance. all these characteristics are given significant attention by the un in the context of institutional reforms and other international agencies; against the background of the strategic relevance of good governance to the actualisation of right to development. lastly, the undrd affirms equality of all its beneficiaries by emphasising that development policy should be geared towards improving the well-being of the entire population and of all persons.66 besides, states are enjoined to respect and promote the rights of all citizens regardless of race, sex, language or religion.67 63 ibid. 64 article 1(2) undrd. 65 olusegun and oyeniyi (n 12) 153. 66 article 2(3) undrd. 67 article 6(1). 106 this implies that every person should have access to education, health care and employment on equal terms. all the foregoing laudable provisions are at the core of the content of rtd; though laudable as they are, it is debatable whether their actualisation in concrete terms has been achieved in most nations of the world, especially, in the context of this paper, in african countries. right to development under international law the right to development is a synthesis of existing rights. to this end, the twin covenants (the ccpr and the cescr) constitute important sources of the right since in substance and spirit, they were drawn, from the udhr.68 this is even more so considering that two vital components of the right to development, which are self-determination and international co-operation, are both recognised under these covenants.69 additionally, the twin covenants contain specific rights that have direct positive implications on the right to development as an umbrella right. for example, the icescr recognises the right of everyone to work,70 to social security,71 to cultural life,72 and to education which must be free and compulsory at least at the primary level and accessible at higher levels.73 similarly provision of adequate standard of living, adequate food, clothing, housing, continuous improvement of living conditions of persons are recognised under this instrument.74 the icescr even goes ahead to recognise that everyone must be free from hunger.75 with regard to the right to health, article 12 (1) of the icescr provides the right of everyone to the enjoyment of the highest 68 the undrd preamble 4 provides: ‘recalling the provision of the international covenant on economic, social and cultural rights and of the international covenant on civil and political rights’. 69 see common art 1 iccpr and icescr; see also *undrd preamble 6 which provides: ‘recalling the right of peoples to self-determination, by virtue of which they have the right freely to determine their political status and to pursue their economic, social and cultural development’. at present 167 states have ratified both on 29 july 1993. <https:// treaties.un.org/pages/viewdetails.aspx?src =treaty&mtdysg-no=iv-4&chapter=4&lang=en> accessed 28 september 2018. 70 icescr art 6. 71 icescr art 9. 72 icescr art 15(1)(a). 73 icescr art 13. 74 icescr art 11(1). 75 icescr art 11(2). evaluation of the rule of law as a prerequisite to the right to development in africa https://treaties.un.org/pages/viewdetails.aspx?src =treaty&mtdysg-no=iv-4&chapter=4&lang=en https://treaties.un.org/pages/viewdetails.aspx?src =treaty&mtdysg-no=iv-4&chapter=4&lang=en the denning law journal 107 attainable standard of physical and mental health. to achieve this, states must take charge by ensuring the reduction of stillbirth and infant mortality rate as well as ensuring the healthy development of child.76 states must also ensure that all aspects of hygiene and the environment are improved, in addition to putting genuine efforts in the ‘prevention, treatment and control of epidemic, endemic, occupational and other diseases’ as well as in the creation of conditions which would assure medical services to all and medical attention in the event of sickness.77 the right to development as a concept only came into existence at the un level in 1986 with the adoption of the undrd.78 the un mandated the high commissioner for human rights to acknowledge the necessity of promoting a balanced and sustainable development for all peoples and also ensure the actualisation of the right to development, as established in the declaration on the right to development.79 the high commissioner was further mandated to establish a branch to be responsible for and the promotion and protection of right to development.80 it should be noted that the undrd is not a unique document in the sense of containing completely new rights not previously covered.81 it more or less reproduced existing human rights and obligations contained in the twin covenants into a single document with the purpose of harmonising them and pursuing them together. its uniqueness lies in its articulation of developmentrelated rights and, where necessary, expanding these rights82 like the instruments highlighted earlier, the undrd emphasises the need for international co-operation as a universal remedy for its achievement83 it is arguably one of the few known international instruments that defines human rights as an entitlement of both individuals and peoples at the same time.84 human rights are largely conceived as individual entitlement.85 76 icescr art 12(2)(a). 77 icescr art 12(c)(d). 78 undrd; see also stephen marks, ‘the rights to development: between rhetoric and reality’ (2004) 17 harvard human rights journal 137–138. 79 ibid. [138]. 80 ibid. [139]. 81 bonny ibhawoh, human rights in africa (cambridge university press 2018). 82 ibid. [33]. 83 undrd art 1(3). 84 undrd art 1(1). 85 see text below. 108 right to development under the african human rights regime most african countries have shown willingness to commit to the right to development. this is gleaned from the affirmation of this right as a peoples’ right in the african charter on human and peoples’ rights (achpr)86 and their contemporaneous continuous commitment to development at regional, sub-regional and national level. as a matter of fact, the achpr was the first enforceable document to contain the right to development thereby making the african continent to be the first in conceiving it.87 the achpr unambiguously provides that ‘states shall have the duty, individually or collectively, to ensure the exercise of the right to development.’88 article 1 of the achpr necessitates the african union (au) member states to take steps to ‘recognise the rights, duties and freedom enshrined in the charter and shall undertake to adopt legislative or other measures to give effect to them.’89 the achpr is the most important african treaty on human rights.90 generally, most african states provide for developmental rights, especially economic, social and cultural rights in the form of fundamental objectives and directive of state policy (fodpsp).91 however, ethiopia, malawi, cameroon and uganda have gone further and recognised the right. the challenge of non-express recognition of human rights, through fundamental objectives and directive principles of state policy, usually results in legal tension with respect to questions of supremacy between constitutions and international law at times even involving extant laws.92 generally, the african human rights system is fully grounded in its articulation of the right to development as a human right.93 86 african (banjul) charter on human and peoples’ rights (adopted 27 june 1981 entered into force 21 october 1986) oau doc gab/leg/67/3 rev 5,21 ilm 58(1982) (achpr). 87 magashi (n 4 ) 119. 88 article 1 of achpr. 89 ibid. 90 magashi (n 4) 119. 91 for example, constitution of the federal republic of nigeria (1999) chapter ii; constitution of the republic of ghana 1992 chapter 006; and the constitution of united republic of tanzania (1977) part i. 92 magashi (n 4) 121. 93 ibid. evaluation of the rule of law as a prerequisite to the right to development in africa the denning law journal 109 extent to which the effective enforcement of the rule of law in africa has assisted the human rights-based approach to development individually, several african states have adopted new constitutions, some of them explicitly entrenching the rule of law as a core value in constitutional governance.94 these states have also constituted courts with the jurisdiction to conduct judicial review, thus ensuring a system of checks and balances to reign in executive overreach.95 several african states provide in their constitutions for the rule of law.96 but, as on a continuum, there are varying approaches to the rule of law depending on the history and political context of each country. south africa south africa is a beacon of hope for the region with regard to how the rule of law can be instrumental to development. even in south africa however, issues have arisen with regard to the extent the executive is willing to embrace the concept of the rule of law. the south african constitution provides that ‘the republic of south africa is one, sovereign, democratic state founded on the following values … supremacy of the constitution and the rule of law’.97 but while south african courts have pronounced themselves on the scope of the rule of law, judges have not been as unanimous with regard to its meaning and scope. the notion of rule of law was at the heart of the decision in masethia v president of the republic of south africa.98 at issue was procedural fairness as a requirement of the rule of law.99 reading for the majority, justice moseneke ruled that the requirement of procedural fairness had been met because the president’s constitutional power to appoint the head of each of the intelligence services was concomitant with the power to dismiss.100 therefore, masethia’s argument that the president was required to adhere to the audi alteram partem principle by affording him a hearing before deciding to dismiss him was without merit?101 the majority insisted that the exercise of executive power should not be constrained by a procedural 94 infra part 6. 95 ibid. 96 ibid. 97 south african const, ch., 1(c), 1996. 98 masethla v president of south africa cct 01/07 [2007] zacc 20. 99 ibid. [179]. 100 ibid. [86]. 101 ibid. [74]. 110 requirement.102 the court asserted that the only constitutional limit to the exercise of this power was the principle of rationality.103 justice ngcobo’s dissent, however, differed slightly in analysis, with the justice insisting that the rule of law requires legality or non-arbitrariness, that is, that public power be exercised in compliance with the law and within the boundaries set by the law.104 botswana botswana exemplifies an african nation where, to a large extent, adherence to the rule of law has resulted in economic development. for many years botswana has been one of the world’s fastest growing economies, with an average economic growth rate of 7.7%. without much foreign aid, and in the absence of a large state, botswana has gone from being the third poorest nation of the world in 1965 to an upper middle-income nation today.105 economist scott beaulier has asserted that the rule of law and comparatively free economic institutions are the major explanations for botswana’s greater success at economic development, in comparison to other african countries.106 beaulier remarks that at independence, botswana was bedevilled by typical problems of poor african countries such as famine, decayed infrastructure, illiteracy and poor health facilities among others.107 however, according to him, botswana grew because its ruling elite made deliberate choices to increase economic freedom and avoided engaging in predatory practices. for some reason, botswana’s leaders were not interested in lining their own pockets.108 respect for the rule of law allowed for entrepreneurship, economic development and social development.109 botswana is exemplary in many respects. in order to provide for a system of checks and balances, critically important to the rule of law, the constitution of botswana implicitly provides for the separation of powers by dealing with each 102 ibid. [78]. 103 ibid. see generally r kruger, the south african constitutional court and the rule of law: the masethla judgment. a cause for concern? 13 per. no.3, 2010 (discussing the questions and challenges arising out the masethla decision in further depth). 104 masethla (n 99) 242; 184. 105 currott (n 8) 17. 106 ibid. 107 scott beaulier and laok botswana, no hands/why botswana should let the country free itself (george mason university mercatus centre, working paper no 53, 2005). 108 ibid. [5]. 109 ibid. [11]. evaluation of the rule of law as a prerequisite to the right to development in africa the denning law journal 111 organ of government in separate and distinct provisions.110 it is important to note that judges of botswana’s high court and court of appeal are appointed on permanent, pensionable terms, and hold office until they reach compulsory retirement at the age of seventy.111 additionally, several constitutional provisions refer to an ‘independent and impartial’ court or tribunal,112 and various acts of parliament provide for independence and immunity of the judiciary.113 kenya kenya has a history of a corrupt judicial system that was subjugated by repressive governments. before the new constitution of 2010, the law was unable to limit the president’s power to unilaterally make decisions by not consulting the ministers or disregard the independence of the judiciary.114 the constitutional amendments of the 1960s, which were meant to increase the power of the president, ended up weakening the judiciary and had a negative consequence on the rule of law in kenya.115 as a result, the public lost faith in their court’s decisions in politically charged cases, such as republic v judicial community of inquiry into the goldeberg affair.116 110 constitution of botswana, ss 30–56 (executive); ss 57–94 (legislature); ss 95–107 (judiciary) (30 september 1966). 111 ibid. [127 (8)]. 112 ibid. [10 (i)], [10 (9)], [14 (4) and [16 (2) (c)]. 113 see, e.g., customary courts act, 47 (granting indemnity to officers acting judicially for official acts done in good faith and while executing warrants and orders); high court act, c. 04:02, s 25(i) (stating that a judge shall not be sued in any court for any act done by him or ordered done by him); penal code act, s 14(1986) (stating that a judicial officer is not criminally responsible for anything done or omitted in good faith in the exercise of his or her judicial functions). 114 migai akech, ‘abuse of power and corruption in kenya: will the new constitution enhance government accountability?’ (2011) 18 indiana journal of global legal studies341, 344. 115 ibid. [376]. 116 republic v judicial comm’n of inquiry into the goldonberg affair (2006) l.l.r. 1, 3–4 (h.c.k.). the outcome demonstrated that the court was an enabler of corruption because it quashed the findings of a commission into allegations of abuse and decided that george saitoti, a minister of finance could not be prosecuted ibid. [376]. the court also held that, should criminal charge be brought against saitoti, he would not be able to receive a fair trial and that because many years had passed saitoti’s constitutional right to a fair trial within a reasonable time would be violated. ibid at 382. in sum, the court 112 aware of this history, kenya’s new constitution is awash with references to the rule of law, references that the courts have regularly emphasised as necessary for the economic and political development of kenya.117 the constitution of kenya is premised on the recognition of ‘the aspirations of all kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law.’118 the constitution uniquely provides that ‘[e] very political party shall promote the objects and principles of this constitution and the rule of law.’119 zimbabwe zimbabwe most eloquently illustrates the thesis that the rule of law is an important prerequisite for genuine economic development. one reason for this is that potential investors are more interested in the prevalence of law and order, the absence of arbitrary regulation and the possibility of expropriation. the quantum of investment in countries not having the security provided by the rule of law is severely limited, reducing the likelihood of economic expansion.120 during mugabe’s rule, the decision to cast aside the rule of law to carry out much needed and justified land reform, made zimbabwe’s economy grow worse,121 as the judges opted for a formalistic understanding of the rule of law, ignoring the law’s substantive justice.122 reasoned that because saitoti had already been tried in the legislature, it should amount to double jeopardy if he were to be tried in court of law. ibid at 376–382. 117 constitution (2010) (kenya). 118 ibid. [preamble]. 119 ibid. [91(l)(g)]. 120 currott (n 8) 14. 121 bbc, ‘robert mugabe admits zimbabwe’s land reform flaws’ (bbc, 27 february 2015) <http://www.bbc.com!news/world-africa-3> 122 ‘the main problem regarding land reform has been lack of resources to buy the land in accordance with the constitutional stipulations’. michelo hansungule, ‘who owns land in zimbabwe? in africa?’ (2000) 7 international journal on minority and group rights 305, 336. mugabe made it clear that he would not respect international law on compensation in the event he did not have the money, at 338. texaco overseas petroleum co. v libya [1978] 17 ilm 1 (standing for the proposition that under international law, there is no dispute that countries can expropriate private property, but they have to pay appropriate compensation). but to get around that by violating the rule of law, from the substantive point of view, only exacerbates the problem hansungule [336]. moreover, the mugabe administration appears to have repeated the same errors committed during the colonial era by ‘allocating land to government officials and party supporters’. evaluation of the rule of law as a prerequisite to the right to development in africa http://www.bbc.com!news/world-africa-3 the denning law journal 113 the doctrine of separation of powers, which is essential to creating a system of checks and balances in the rule of law, is notably missing in zimbabwe’s constitution.123 according to the constitution, the legislature consists of the president and parliament.124 although the constitution has a declaration of rights, which is directly enforceable before the constitutional court of zimbabwe,125 most of the rights included have serious derogations attached to them, and the supreme court of zimbabwe restrictively interpreted the scope of those derogations.126 realisation of the right to development in africa – the pre-eminent responsibility of the african union (au) right to development the right to development finds full expression in the african charter on human and peoples’ rights (achpr). this has also subsequently been advanced by the adoption of the un declaration on the right to development (drd) (contained in the 1986 un general assembly resolution 41/126). the right to development goes beyond economic or social development to include both independent right and the right that is intrinsically linked to the full enjoyment of a range of human rights with social, cultural, political and economic dimensions. one of the key elements included is direct participation in development. this implies meaningful connection to resources and opportunities as well as to institutions and systems of social organisation and governance. it is not enough for people to be passive beneficiaries of welfare and social benefits or to vote in elections. such participation is achieved through the exercise of civil and political rights which create discussion and debate, and in turn make room to influence policies.127 another fundamental element included is sustainable development. sustainable development is the ability of countries to critically engage with the economic, social and environmental impact of sustainability that focuses on meeting the developmental needs of the present without compromising the 123 see constitution of zimbabwe, s. 116 (may 9, 2013) (vesting legislative power in both the president and parliament). 124 ibid. 125 ibid. 126 ibid. [5]. 127 african charter on popular participation in development and transformation, 1990. 114 future.128 the promotion of peace and security and right to self-determination are also notable elements of development. self-determination refers to a people’s right to elect their government freely; to choose their own manner of pursuing social, economic and cultural development; and to have control over their resources and wealth. bearing in mind that the right to development seeks to remove the artificial distinction made between so-called first-generation (civil and political) and second-generation (social, economic and cultural) rights, it goes without saying that violation of any of these rights is tantamount to a violation of all the elements comprised thereof. in recognition of the importance that the au attaches to the enjoyment of all human rights, the au commission adopted a strategic plan which placed human rights at the core of its social development programmes and activities. one of the key roles of the au’s department of social affairs is to provide the political leadership to harmonise and coordinate africa’s efforts in ensuring that noticeable improvements are made in the lives of all africans. it does so within the context of the right to development, as embodied in the african charter on human and peoples’ rights, the au constitutive act and the vision and mission of the au commission. the department of social affairs’ programmes encompass numerous issues, including health and endemic diseases, migration, population, reproductive health and rights, culture, sport, social protection of vulnerable groups, gender equality, education and human resource development. special attention is given to marginalised and disadvantaged groups and communities. it is important to also draw inferences from a number of specific measures which have been taken by the au commission in addressing the social challenges at continental levels. one of these is the 1999 charter for social action which incorporates a variety of principles including respect for basic human rights, the basic needs and aspirations of the population, pursuit of the goals of social justice and equity and accessibility of social services to all. among its strategies, the charter calls for the formulation of national social policy and the incorporation of the social dimension at all level of planning, programming and implementation. secondly, there is the 2004 ouagadougou declaration and plan of action on employment and poverty alleviation,129 which expresses concern about the sustainable livelihoods of the african population in general, and those of vulnerable groups in particular. the declaration calls for equal opportunities for 128 united nations sustainable development agenda 2030. 129 adopted at the extraordinary summit of heads of state and government in september 2004. evaluation of the rule of law as a prerequisite to the right to development in africa the denning law journal 115 all and commits its signatories to empowering the most vulnerable groups, including them in poverty alleviation programmes and policies, and ensuring their full participation in the implementation of these programmes. furthermore, in 2008, the african union social policy framework was published.130 this provides guidance to member states in the promotion of the rights and ensuring the welfare of marginalised and excluded groups, including orphans, other vulnerable children; the youth in general, people with disabilities, refugees and displaced people, families, the elderly and people living with hiv and aids. the development of the policy framework was informed by africa’s need to combine economic dynamism (including ‘pro-poor’ growth policies), social integration (societies that are inclusive, stable, just and based on the promotion and protection of all human rights, nondiscrimination, respect for diversity and participation of all peoples), and an active role for government in the provision of basic services at local and national level. in this context, it has been recognised that social policy should (a) promote equity and fairness among certain segments of society and certain regions within a country (otherwise it leads to social exclusion) by providing equitable access to rights and resources; (b) address the social tension between cultural identity and aspirations towards the freedoms promised by modernity; (c) reflect the true realities of africa that bring together economic and social policies, thus recognising the interdependency between the two; and (d) promote a human development approach that puts people at the centre of development, by investing in people. based on the above, it is clear that development is not just about economic growth: it encompasses social advancement and the betterment of livelihoods. central to the right to development is social, economic and cultural rights. whenever reference is made to the promotion and protection of human rights, there is an inclination to speak about civil and political rights only. in this regard, the yardstick for measuring the enjoyment of such rights has been the full and active participation of people in democratic processes such as elections, freedom of expression and the right to life. african countries have been hailed for increasing respect for human rights as more countries emerged through democratic transitions following elections through which people freely choose their governments. however, participation in elections should not be the only human rights indicator; rather, and more importantly, the indicator should be the full and equal enjoyment of social, economic and cultural rights. therefore, poverty can be seen as a violation of human rights, and its reduction will contribute to the full and equal enjoyment of all human rights. 130 au social policy framework for africa 2008. 116 right to development and the challenges faced by less developed african countries over the years, the united nations has made efforts to identify and remove obstacles to the realisation of the right to development.131 however, the realities of underdevelopment in less developed countries of the world run counter to these efforts. development is curtailed by several indices, which constitute the obstacles of the right to development (rtd). unfortunately, these obstacles affect the underdeveloped and developing countries more. some of these challenges are: insufficient foreign aid in developing countries, foreign aid plays a large role in realising the right to development. in view of this, the united nations held an international conference on financing for development in monterrey, mexico in 2002 as a global response to the challenges of finance and development across the world, with particular focus on developing countries. the goal was to develop an inclusive economic system that eradicates poverty, while promoting sustainable development.132 however, the volume of external aid to developing countries has declined over the years. aside from the overall level of assistance, there are shortcomings in the manner of its distribution as some countries are preferred over others for reasons such as political motivation, maintaining influence, strengthening their international comparative advantage and international competitive edge in respect of trade and investment. also, some government of donor states, often suppress human rights considerations in aid or development negotiations.133 131 this is evident in conventions, which contain provisions protecting key groups against discrimination. see, for example, article 2, united nations convention on the rights of the child (crc), article 2, 7, 8, 11, 12 convention on the elimination of discrimination against women (cedaw). international convention on the elimination of all forms of racial discrimination, united nations convention on the rights of persons with disabilities. 132 see the united nations report on international conference on financing for development, monterrey, mexico, 18-22 march 2002. available at http://archive.ipu.org/ splze/ffd08/monterrey.pdf accessed 3 december 2019. 133 dejo olowu, conceptualizing an integrative right-based approach to human development in africa: reflections on the roles and responsibilities of non-state actors (copenhagen: danish institute for human rights 2005) 32. evaluation of the rule of law as a prerequisite to the right to development in africa http://archive.ipu.org/splze/ffd08/monterrey.pdf http://archive.ipu.org/splze/ffd08/monterrey.pdf the denning law journal 117 corruption a corrupt activity is that which violates the ethics of society or the ethics of one’s office, position, profession or calling.134 corruption, though a global problem, varies from one country to the other and is most evident in developing countries.135 the negative impact of corruption on development is no longer questioned. corruption hinders economic development, reduces social services and diverts investments in infrastructure, institutions and social services.136 it has been described as immoral, unjust and repugnant to the ideals of humanity enshrined in the universal declaration of human rights; hence falls into the same category as torture, genocide and other crimes against humanity that rob humans of human dignity.137 this is so because the funds and resources that should be allocated for use in tangible projects that will promote the well-being of citizens are diverted into personal pockets.138 various reasons could be attributed as factors promoting corruption in african countries; these includes greed, lack of transparency, inadequate strategic vision, few incentives for effective performance and weak monitoring mechanisms, among other; the effects of these are manifested in poverty of the masses, low civil service salaries and poor working conditions.139 all these have a telling effect on the realisation of right to development in africa. consequences of globalisation globalisation can be defined as a process whereby economic openness, economic interdependence and economic integration are increased between countries of the world. its implication, therefore, is that every country, either developed or developing, would have access to every other country.140 globalisation is responsible for 134 osita nnamani ogbu, ‘combating corruption in nigeria: a critical appraisal of the laws, institutions and the political will’ (2010) 14 annsicl 99, 102. 135 victor egwemi, ‘corruption and corrupt practices in nigeria: an agenda for taming the monster’ (2012) 14 jsda journal of sustainable development in africa 72. 136 un anti-corruption practice note, february 2004. 137 raj kumar, corruption and human rights in india: perspectives on transparency and good governance (oup 2011) 34. 138 obayelu, ‘effects of corruption and economic reforms on economic growth and development: lessons from nigeria’ (uneca, 2007) <www.uneca.org/sites/default/files/ page_attachments/abiodun_elijah-obayelu-o.pdf>accessed 28 march 2019. 139 ibid. 140 gbenga lawal, ‘globalisation and development: the implications for the african http://www.uneca.org/sites/default/files/page_attachments/abiodun_elijah-obayelu-o.pdf http://www.uneca.org/sites/default/files/page_attachments/abiodun_elijah-obayelu-o.pdf 118 the increasing gap between the rich and the poor and the unfair labour standards in the developing world.141 the uncomfortable truth about globalisation is that it made african countries a huge dumping ground for products exported to africa from developed countries, and by extension discouraging industrialisation and technological development of african countries. the consequence of these is the inability of the developing african countries to compete on favourable terms with developed countries at the international market; thereby turning them into ‘economic slaves’ of the developed countries. unfortunately, governments in african countries have contributed to this inequity by their irresponsible and heartless exploitation of their own citizens for personal gains. under this circumstance, actualisation of the right to development remains a mirage. weak enforcement of laws and policies laws are only effective when they are well implemented and enforced. according to degroff and cargo,142 ‘implementation is an iterative process in which ideas, expressed as policy, are transformed into behaviour, expressed as social action.’ the social action transformed from the policy is aimed at making the society better and manifests as programmes, procedures, regulations or practices. in most less developed african countries, many laws are laid down without effective implementation, at the end of the day, the resources and efforts that have been expended in making such laws become a waste and the problem for which the law was intended to solve will persist. poverty poverty affects development negatively in several ways. it affects an individual’s access to basic necessities of life such as housing, food and health care. it also propels people to engage in different forms of crime such as human trafficking, robbery, kidnapping, all of which negatively affect the development of countries. more funds will thus have to be injected into the criminal justice system instead of economy’ (2006) 1(1) humanity & social sciences journal 65. 141 elli louka, international environmental law: fairness, effectiveness and world order (cambridge university press 2006) 49. 142 amy degroff and margaret cargo, ‘policy implementation: implications for evaluation’ in jm ottoson and p hawe (eds), knowledge utilization, diffusion, implementation, transfer, and translation: implications for evaluation (new directions for evaluation 2009) 48. evaluation of the rule of law as a prerequisite to the right to development in africa the denning law journal 119 being spent on other important things.143 poverty creates disparity in educational attainments as children of school age either drops out for lack of money on the part of their parents/guardians or could not even at all. besides, poverty robs poor african countries of the most productive segments of their populace as lack of access to good health care, sanitary living environment and hygienic working conditions lead to many premature deaths, thereby denying the countries of quality manpower that could ensure their economic growth. this remains a potent obstacle to the actualisation of right to development. lack of respect for all human rights in order to achieve development, states must put the human rights of its citizens into consideration without any distinction as to race, sex, language or religion and such rights must be indivisible and interdependent.144 thus, a certain category of rights should not be more important than others. governments with sufficient resources may however lack the will to implement human rights institutions and policies if it does not see it as a priority.145 the failure to protect human rights constitutes an obstacle to development.146 government should protect people from human rights violations such as apartheid, racism and racial discrimination, colonialism, aggression, foreign interference and threats of war.147 lack of institutional capacity globally, institutions are often saddled with the responsibility of fostering development. however, strengthening institutional capacity remains a major challenge. this is largely due to the relationship and link that exists between the organisations and their host communities. institutions tasked with providing services and products to their constituents across a wide spectrum of sectors often face daunting challenges as they struggle to perform in developing country environments which are undergoing or recovering from political, social and economic upheaval.148 these challenges and more such as bureaucratic cultures often affect 143 attahiru muhammadu jega, democracy, good governance and development in nigeria (spectrum, 2007) 171. 144 article 6(1) and 6(2) undrd. 145 lanse minkler and shawna sweeney, ‘on the indivisibility and interdependence of basic rights developing countries’ (2011) 33 hrq 351. 146 article 6(2) undrd. 147 article 5 undrd. 148 human and institutional capacity development handbook: a usaid model for 120 the ability of any well-established organisation in the developed world to adapt and thrive in their new host community. recommendations and conclusion recommendations while africa is an important frontier in economic development, respect for the rule of law continues to lag in most african countries. the anti-western rhetoric that dominated development strategies prior to the adoption of the constitutive act of the african union has largely diminished, but it has not completely disappeared. the au continues to emphasise respect for the principle of non-intervention in the internal affairs of member states, which has led the au to adopt an uncritical stance towards some african states where the rule of law is largely disregarded. for sustainable development, it is important for african countries to continue to develop institutions dedicated to good governance and the rule of law. in particular, it is important that judicial independence be assured. at the regional level it is crucial for human rights institutions, like the african court of human rights and the african court of justice and human rights, to develop into robust and respectable oversight and enforcement institutions. however, this will not happen until the constituent legal instruments for these institutions are amended to ensure that african countries do not have a choice of whether or not to make a declaration accepting the jurisdiction of these institutions regarding individual petitions before them. additionally, it is imperative that african countries find better mechanisms to assure compliance with court decisions. as african countries forge business relationships with foreign countries, they must also ensure that the legal instruments embodying those relationships clearly indicate the human rights obligations of foreign businesses operating in africa. these obligations are already spelled out in some african human rights instruments, making it a state obligation. it is necessary to realise that legal solutions alone cannot work because legal and judicial solutions are highly dependent on the political climate. first, in order to improve the political environment, there is a need to focus on political leverage by more developed countries in africa and elsewhere. the international community, especially the more democratic and developed parts of the world, sustainable performance improvement prepared by the participant training team in the office of education, bureau for economic growth, agriculture & trade, 10/2010 <http:// pdf.usaid.gov/pdf_docs/pnadt442.pdf> accessed 16 october 2018. evaluation of the rule of law as a prerequisite to the right to development in africa http://pdf.usaid.gov/pdf_docs/pnadt442.pdf http://pdf.usaid.gov/pdf_docs/pnadt442.pdf the denning law journal 121 could use their leverage in africa to encourage greater respect for human rights and adherence to the rule of law. in far too many countries like uganda, ethiopia, rwanda, kenya, developed, democratic countries, such as the united states, condemn their actions and yet continue to work with ruling political regimes that pocket foreign development aid and maintain a repressive grip on power. second, focusing on local civil society organisations will be imperative to promote change locally. third, it is vital to recognise and highlight bold judicial decisions across africa which shows there are judicial institutions willing to take on the establishment in order to promote the rule of law, respect for human rights and democracy. fourth, and relatedly, it is important to highlight those african countries regarded as best-practices countries, these would be countries that have consistently promoted the rule of law, respect for human rights and democracy and have had development as a result. conclusion an economically strong africa can only mean great things for the international community as a whole. nevertheless, in order to get there the individual african countries must realise the importance of development, the rule of law and human rights. countries need to avoid making arrangements that perpetuate authoritarianism at the expense of sustainable development, and must avoid arrangements that could impede the much-needed developments in many ramifications. in many countries, judiciaries are not powerful enough to stand up to the executive in order to uphold the rule of law. until that happens, many african countries cannot make the necessary breakthrough on the path to sustainable development. the child a view across the tweed the rt. hon. lordmackay of clashfern he is beyond control of his parent; or through lack of parental care he is falling into bad associations or is exposed to moral danger; or the lack of care as aforesaid, is likely to cause him unnecessary suffering or seriously to impair his health or development; or any of the offences mentioned in schedule 1 of the children and young persons (scotland) act, 1937 has been committed in respect of him or in respect of a child who is a member of the same household; or the child, being a female, is a member of the same household as a female in respect of whom an offence which constitutes the crime of incest has been committed by a member of that household; or he has failed to attend school regularly without reasonable excuse; or he has committed an offence; or he is a child whose case has been referred to a children's hearing in pursuance of part v of this act." (e) (c) (d) (f) (g) (h) for any system of law there can be no more important duty than insuring that .those who are least able to fend for themselves in the community are adequately protected. the three main groups within this category are the sick, the old and the young. on this occasion i wish to say a little about the law and its relationship to children because i believe that this, and its many facets, is one of the most pressing and persistent problems that we face. it would be reckless for me to try to provide a comprehensive over-view of all the law about children, whether in the context of crime, or of divorce, or of neglect. instead, i wish to look at the way in which scots law and the courts in scotland have attempted to grapple with these problems and how it is now proposed to amend the law in england and wales. there is, therefore, a certain ambiguity lurking in the title of this paper, depending on the viewer's location. the social work (scotland) act 1968, in section 32(2), sets out the conditions on which a child may be made the subject of compulsory measures of care. they are:"(a) (b) "the lord high chancellor of great britain. the child & co london lecture 1988, printed by kind permission of lord mackay of c1ashfcm and child & co .. 89 the denning law journal much of this will have a familiar ring to english lawyers. implicit in our statute is the idea of the child in trouble. a child may get into trouble in many different ways and in practice the different grounds for compulsory measures of care are likely to run into one another. truancy may indicate that the parents have insufficient control. it may lead to association with undesirable acquaintances and to the commission of crimes by the child. similarly, a child who grows up in a household where he or she is the victim of crime and even, most horrifically of all, of sexual abuse, is unlikely to develop the moral strength which we would all hope that all parents would manage to instil into their children. the major existing distinctions between the situations north and south of the tweed are the institutional arrangements for putting the substantive law into effect. i hope it may be useful if i describe very briefly what those arrangements are in scotland. there the decision about what should happen to a child who is, arguably, in need of compulsory measures of care, is taken by what is called a children's hearing. for these purposes the secretary of state appoints what is called a children's panel which is a large body of people who, rather like juvenile court justices in england and wales, can be considered to have the right qualities, not excluding, i hope, sound common sense, to make such decisions. three such people from the panel constitute a children's hearing and there must always be a man and a woman from the panel at each hearing. the children's hearing is always conducted in private and with the minimum of formality. this is possible because a children's hearing does not hear any kind of dispute about whether the grounds for considering compulsory measures of care are made out. thus the children's hearing can approach the issues it has to resolve in perhaps a more constructive way than might well be possible if it had to decide contentious questions of fact. if there is a dispute about whether the grounds are made out then the matter is referred to the sheriff for him to decide that issue. this appears to me to be a valuable separation. in connection with the hearing before the sheriff the contentious issues of fact can be investigated and decided in very much the same way as they would be in an ordinary court. but when it comes to disposal the children's panel take over and, as i said, the whole atmosphere is much less formal and it is possible to have a round table discussion in which the panel can hear at the same table the views of the parents, the social worker, the views of the teacher from the school and, possibly, foster parents if there are foster parents involved and perhaps other people with an interest so that there is not the same sort of insistence on people being interested as parties before a court as there would be at the earlier stage if there is such an earlier stage, the second institution which is an essential feature of the children's hearing system, which i believe does not have a direct parallel south of the border, is the. reporter. the reporter is an official appointed by a local authority whose function it is to decide whether a child should be brought before a children's hearing. the 90 the child a view across the tweed reporter's discretion is very wide. under section 39 of the social work (scotland) act 1968 he is given power to arrange a children's hearing, or to refer a case to the local authority with a view to their making arrangements for advice, guidance and assistance to the child and his family, and he is given (and i think this is quite important) explicit power to take no further action on the case. so parliament has entrusted him with a very very wide discretion indeed, and i think it very unusual to have a provision of that kind for a public official namely that he should have power to take no further action at all on what has been referred to him. this discretion is exercised actively and frequently. of the 36,000 or so cases referred to reporters in 1986 no action was taken in about half of the cases. now when i say "no action" of course i am referring there to action which can be identified. i think it highly likely that in many of those cases recorded as cases in which no action was taken, the reporter on hearing of the case has had some contact for example with the child's parents and has been satisfied after talking with them, that once they have known about the problem the problem is, perhaps, not likely to be repeated. it is quite a striking compliment to that system that it seems to have operated in about half of the referred cases. the reporter in many ways functions, in respect of the children's hearings, as does the procurator fiscal in respect of the criminal courts. the procurator fiscal in scotland corresponds perhaps somewhat roughly to the crown prosecutor recently established in this country although the procurator fiscal has a somewhat longer history in scotland than does the crown prosecutor in england. although reporters are not necessarily legally qualified the parallel with the procurator fiscal is made even more marked by the fact that three quarters of the cases which are brought before the children's hearings allege that the child has committed an offence. so although the offence heading is embedded in quite a long list of grounds for referral in respect of numbers of cases it is the most important one, in terms of numbers. in one respect, however, the reporter is more independent, even, than the procurator fiscal in his decisions. the procurator fiscal is responsible to the scottish law officers, and ultimately through them to parliament, whereas, as far as i can tell the reporter is responsible only to himself. it is remarkable, and a great tribute to the integrity and ability of the men and women who are reporters, that in an age which distrusts discretion vested only in officials, they have been so successful. there has been one major change in the institutional arrangements since the 1968 act. english lawyers will recognise it, although under a different name. the sheriff, and the children's hearing, have the right to appoint what is called a "safeguarder" where there may be some conflict of interest between the child and the parents. in england and wales, i think he or she would be called a "guardian ad litem". but in scotland, as you know, we like to go for simpler expressions. the function of the safeguarder is broadly the same as that of the guardian ad litem in care proceedings in this country. 91 the denning lawjournal but it is not just through the systems of juvenile justice through the children's hearing in scotland that a child may come into contact with the law. large numbers of children are, unhappily, the helpless victims of family breakdown and their welfare has to be taken into account when the court comes to deal with the consequences. the courts, in scotland, now have wide powers to do what is best for the children. procedural and technical obstacles have been almost entirely swept away. in scotland now divorce is available through the sheriff court which has made proceedings a great deal more accessible than they were. one controversial question in recent years has been the application of section 8(1) of the matrimonial proceedings (children) act 1958 which, again in wording which will be familiar to english lawyers, restricts the power of the court to grant a decree unless it is satisfied that satisfactory arrangements have been made for the care or upbringing of the children or that it is impracticable for the parties to make such arrangements. the criticism has been that this places a duty on the court which, on the limited evidence available to it, it can perform only in the most perfunctory way. however, more recent research on satisfaction hearings in scotland, i gather, suggests that some of the earlier fears were exaggerated and that some of the solutions canvassed, such as many more independent reports to the court on the situation of the children, were unnecessary. a report by the scottish office central research unit, for instance, suggested that in 60 per cent of cases there was adequate information for the court and in the other 40 per cent a suitable level of information could be obtained simply by improving the content and format of the documents which the parties are required to lodge with the court, and by calling for reports in a very limited number of cases. the question of the use of reports in children's cases leads to the broader question of how far a court dealing with children's welfare should be inquisitorial in style. i think it is fair to conclude that where the parents are parties to the case there is very little by way of movement towards an inquisitorial system. in scotland the practice of the judge's interviewing the children concerned in a divorce case has, i believe, not found a great deal of favour with the appellate courts. they pointed out the dangers possibly involved in that. the children's hearing is perhaps the closest to an inquisitorial proceeding we have, although the presence of the reporter and the absence of dispute over the grounds on which the application is brought tend to lend themselves, as i said earlier, somewhat to this approach. it may be of interest also to note, in this connection, that the court of session has also taken the view that it can be justifiable for the children's hearing to withhold certain documents it has from the parents. as they put it: "the principles of natural justice must yield to the best interests of the child." this is obviously a matter that was the subject of a good deal of contention, but it is a reflection of the fact that the children's hearing is not, in the ordinary sense, a court hearing with parties and is the sort of body which should be given a considerable amount of flexibility in the rules which it applies. on this occasion, i need not detail the existing law relating to children in 92 the child a view across the tweed england and wales beyond saying that whilst it has some strong similarities to that in scotland, for example, in the grounds for care proceedings in section 1 of the children and young persons act 1969, it will by now be apparent, if it was not already, that there are clear divergences. looking to the future, the last 3 years have seen major reviews of child law. on the public law front of child care the dhss published a consultation document, the review of child care law, in late 1985. it was followed in early 1987 by the white paper on child care and family services) which amongst other things set out the governmment's conclusions on the protection of children at risk and the role of the courts in that task. at the same time the law commission, which had provided its specialist services to the dhss in its work, was reviewing on its own behalf private child law in the areas of guardianship, custody and wardship. the law commission has now finished consulting on their four working papers and we eagerly look for their report as soon as it is ready.2 finally, we are awaiting the report from the cleveland inquiry. this coincidence represents, in my view, an historic opportunity to reform the english law in this area into a single rationalised system as it applies to the care and upbringing of children. on the public law side, we know from the white paper that there is no present proposal to follow the scottish system. indeed, in some ways, such as the grounds for making care and supervision orders, the proposals will create new differences. thus in england and wales the grounds in future, assuming the white paper proposals are put into legislation, will look directly to the reasons why state intervention is required, thus moving away from the descriptive or symptomatic approach in the existing scottish and english legislation. hence it is proposed that before a care or supervision order can be made the court should be satisfied that there is harm or likely harm to the child resulting from an absence of a reasonable standard of parental care, or the child being beyond parental control and, in respect of both, that the order proposed is the most effective means of safeguarding and promoting the child's welfare. so that there will be first of all the question whether some form of order is needed having regard to the apprehended harm to the child, and then secondly, what form of order is appropriate in the particular circumstances of the case. however, in a purely english context the movement towards a single integrated law of children is apparent. i mean by that that the mere fact that england in this is diverging from scotland is not, in any sense, to be regarded as other than a good development. it is important in my view, that the law of england and wales should itselfbe an integrated system, and if it turns out to be a good one who knows, but in due course the scottish law might follow it. thus it is proposed that where the court concludes that an order giving custody to a private individual would be appropriate, that should be available to the 1. cmnd. 62 (1987). 2. see law com. working papers, no. 96 (with supplement), review of child law: custody (iyil6); no. 100, care supervision and interim orders in custody proceedings (1987); no.101, wards of court (1987). 93 the denning law journal court as an alternative to care or supervision and that there should not be a situation in which you get one type of proceedings and are not able to get that type of order except in these proceedings and if you want a different type of order you have to go in for different proceedings altogether. this is the suggestion of the white paper and i believe that the response to it generally is to think it a good development. or again, whilst not following the scottish model of children's hearings, the white paper makes it clear that there are to be changes to procedure in care cases to move care proceedings "away from the quasi-criminal model towards a civil model thus bringing private and public child law closer together". yet a further example of the closer integration of public and private child law can be found in the government's intention to require the same grounds for care and supervision to apply in family proceedings as in proceedings brought by local authorities seeking such orders. as regards private law, we are still, as i say, awaiting with interest what the law .commission will propose. however, their close liaison with dhss and much of what they have said in their working papers suggests that they too hope that we will seize this opportunity to bring public and private child law together into a comprehensive, comprehensible and consistent code. in this work we must all wish them well and hope that the results will come soon. finally, there is the cleveland inquiry. i am not in a position even to guess what recommendations for change may emerge from that inquiry. so far as the law commission is concerned, as i said, there are some materials available from which a good guess may be possible, but so far as the cleveland inquiry is concerned, i am not in that position. if such a word can be used of so unhappy a topic, its findings will, i hope, prove opportune by becoming available at a time when they will be dealt with in the broad context of child care and welfare in the law. having spoken of children's hearings in scotland and the reporter you may be expecting some news from me on the proposals for a family court in england. well, it is difficult to give news about a topic which is so differently understood by different people. everyone who uses the phrase appears to understand it somewhat differently. but i think it would be fair to say that the government is continuing to work on the subject but it would be premature to reach any very final conclusions at this stage. at the heart of family law there is rightly the concern for children. until we have settled the substantive law in that respect, and by this i mean the public law discussed in the white paper, the private law to be discussed in the report from the law commission and the related matters to emerge from the cleveland enquiry, and have a clear view of questions and tasks which the courts will have to undertake, it would be rash, in my opinion, to decide what changes may be necessary to the constitution of the courts and their structure to ensure that they can effectively apply the intended new, comprehensive code of child law. it surely must be right to know first of all the nature of the questions that are likely to arise from the substantive law as it applies to particular cases before you seek finally to devise a structure to obtain the answer. 94 the child a view across the tweed from what i have said, you will see that a view across the tweed, whether from its northern or southern bank, presents the scottish or english lawyer with a mixture of recognisable landmarks and highways set in an unfamiliar landscape. given the opportunity of a guided tour i would hope that each might learn lessons from the other whilst accepting that there are differences in the cultural, social and historical geography which may lead to different solutions being found to different problems on both sides of that great river. it is surely very remarkable how the scottish and the english systems have continued as such distinct legal systems for the 280 years or so since the union of the parliaments. this is a source of richness in the legal culture of the united kingdom which i greatly value as the opportunity it gives for improvement of each system by competitive study is a great advantage which i believe will continue as far as one can see into the future. 95 19 denning law journal 2016 vol 28 special issue pp 19-36 decommissioning in the united kingdom continental shelf: decommissioning security disputes ben holland abstract this article focuses on whether the decrease in the oil price will result in insufficient security to cover escalating offshore decommissioning liabilities. the annual decommissioning security process requires the calculation of an amount of security in anticipation of decommissioning. this process takes place under decommissioning security agreements, whose aim is to provide mutual protection in case one party falls into financial difficulty. the funds are held in a trust until the decommissioning is completed. this article notes that disputes have begun to arise as to whether sufficient security has already been or ought to now be placed in trust. this article also considers the preferred dispute resolution mechanism for such disputes, namely expert determination. keywords: decommissioning, decommissioning security agreements, disputes, net value, net cost, expert determination. introduction this is the first year in which the full impact of the oil price decrease has been factored into the annual decommissioning security process. whether sufficient security has already been or ought to be placed in trust is an area raising significant concern in the industry. against a backdrop of historic collaboration and practical co-operation, disputes about the calculation of the amount of security that ought to apply in anticipation of decommissioning have begun to arise. decommissioning security agreements (dsas) have evolved as a reaction to the extensive and continuing liability created by the petroleum act 1998 as amended by the energy act 2008. this regime provides that all current and former co-licensees will be jointly and severally liable for any decommissioning costs. dsas were, if executed appropriately, to  partner, squire, patton and boggs llp uk. email: ben.holland@squirepb.com mailto:ben.holland@squirepb.com decommissioning security disputes 20 provide the necessary mutual protection needed to ensure that, if one party to the dsa falls into financial difficulty, its security is called upon and the funds are held in a trust until the decommissioning is completed. this article focuses on whether the decrease in the oil price will result in insufficient security to cover escalating decommissioning liabilities. as a result of current market conditions, there has been an increase in requests for data, closer scrutiny of operator projections and a heightened risk of disputes about “net value” and “net costs”, which are normally resolved through expert determination. the increasing focus on decommissioning decommissioning activity is gaining increasing momentum in the uk. the growth is clear from the increased number of major decommissioning projects underway which includes; the murchison field, for which the decommissioning programme was approved in 2014; the brent delta platform for which the decommissioning programme was approved in 2015; thames area for which decommissioning programmes were approved in 2015 and the leadon field for which decommissioning programmes were approved in 2016. in addition, a number of additional decommissioning programmes are under consideration, including the viking satellites cd, dd, ed, gd and hd. oil & gas uk has forecasted that the total decommissioning expenditure in the central north sea and the northern north sea/west of shetland’s region has increased by £3 billion with a total forecast for the industry of £16.9 billion over the 2015 to 2024 timeframe1 with revenue projections having fallen due to the oil price decrease and cessation of production (cop) dates brought forward as a consequence, previously healthy-looking security balances may now seem marginal. decommissioning security agreements (dsas) the primary requirements for decommissioning in uk waters are set out in the petroleum act 1998, as amended by the 2008 act. 1 oil & gas uk, ‘decommissioning insight’ (oil and gas uk, 2015) 6 available at <http://oilandgasuk.co.uk/wp-content/uploads/2015/05/op098.pdf> accessed 9 november 2016. the denning law journal 21 under sections 292 and 303 of the petroleum act 1998, the secretary of state may, by written notice, make a wide set of participants connected with 2 petroleum act 1998, s 29(1) states: “the secretary of state may by written notice require (a) the person to whom the notice is given; or (b) where notices are given to more than one person, those persons jointly, to submit to the secretary of state a programme setting out the measures proposed to be taken in connection with the abandonment of an offshore installation or submarine pipeline (an ‘abandonment programme’)”. 3 petroleum act 1998, s 30(1) states: “a notice under section 29(1) shall not be given to a person in relation to the abandonment of an offshore installation unless at the time when the notice is given he is within any of the following paragraphs (a) the person having the management of the installation or of its main structure; (b) a person to whom subsection (5) applies in relation to the installation; [(ba) a person to whom subsection (5)(a) and (b) applied in relation to the installation, but who— (i) transferred the right mentioned in that subsection to another person, and (ii) has not obtained a consent required under the licence in relation to the transfer;] (c) a person outside paragraphs (a) and (b) who is a party to a joint operating agreement or similar agreement relating to rights by virtue of which a person is within paragraph (b); (d) a person outside paragraphs (a) to (c) who owns any interest in the installation otherwise than as security for a loan; (e) a [body corporate] which is outside paragraphs (a) to (d) but is associated with a [body corporate] within any of those paragraphs”. s 30(5) of the act states: “this subsection applies to a person in relation to an offshore installation if— [(a) the person has the right— (i) to exploit or explore mineral resources in any area, (ii) to unload, store or recover gas in any area or to convert any natural feature in any area for the purpose of storing gas, or (iii) to explore any area with a view to, or in connection with, the exercise of a right within sub-paragraph (i) or (ii), and] [(b) either— (i) any activity mentioned in subsection (6) is carried on from, by means of or on the installation, or (ii) the person intends to carry on an activity mentioned in that subsection from, by means of or on the installation,] or if he had such a right when any such activity was last so carried on…”. petroleum act 1998, s 30(6) states: “the activities referred to in subsection (5) are— [(a) the exploitation or exploration of mineral resources in the exercise of the right mentioned in subsection (5)(a); (aa) the unloading, storage or recovery of gas in the exercise of that right; (ab) the conversion, in the exercise of that right, of any natural feature for the purpose of storing gas; (ac) the exploration in exercise of that right with a view to, or in connection with, the exercise of a right within subsection (5)(a)(ii);] decommissioning security disputes 22 or interested in a particular installation jointly and severally liable for all decommissioning costs of that installation. to deal with this extensive and overlapping liability, the industry has developed dsas, whereby each participant agrees to deposit cash or, normally, another type of security, such as letters of credit, into a trust. that trust operates to pay the costs of decommissioning when the time comes. if a party falls into financial difficulty, the security provided is intended to be sufficient to cover that party’s share of decommissioning costs. parties to a dsa include: 1. first tier participants – this group will be composed of co-venturers under a joint operating agreement (joa). each member of this group will provide security for the upcoming decommissioning programme. 2. second tier participants – this group will be composed of those at risk of being caught by the extensive decommissioning regime. such participants include oil & gas companies that sold their interest in the field, often many years ago. second tier participants typically remain party to the dsa to ensure that sufficient ongoing security is provided by the first tier participants. 3. third tier participants – these are not parties to the dsa, but can, by agreement, enforce the terms of the dsa using benefits derived under the contracts (rights of third parties act) 1999. 4. secretary of state – if there is concern that those liable for decommissioning will be unable to discharge their decommissioning obligations; the secretary of state may, for surveillance and enforcement reasons, become party to the dsa. (b) the conveyance in the area so mentioned, by means of a pipe or system of pipes, of minerals got, or gas being stored or recovered, in the exercise of that right; and (c) the provision of accommodation for persons who work on or from an installation which is or has been maintained, or is intended to be established, for the carrying on of an activity falling within paragraph (a) [to (b)] or this paragraph”. the denning law journal 23 how decommissioning security agreements operate dsas facilitate the transfer of mature fields from established companies to smaller participants with limited financial recourses, by avoiding duplication of security. where an interest in a field or structure is sold, the seller will be concerned about its continuing and perpetual liability to carry out decommissioning. for this reason, it is likely to require security from the purchaser. oil & gas uk has produced a standard-form dsa which has recently been updated to take account of decommissioning relief deeds (drds), together with updated guidance notes (the dsa guidance notes) to capture industry practice.4 the oil & gas uk standardform joa suggests that the joa parties enter a dsa before submitting a development plan for the field. under such dsa, each participant in a joa will agree to pay cash or other types of security into a trust, held until the end of the decommissioning process. the share of decommissioning costs will usually, but not always, correspond with a participant’s participating interests under the joa. the former department of energy and climate change (decc), now replaced by the department for business, energy and industrial strategy (beis) recognises that “the over-riding aim of a dsa is to ensure that guaranteed funds will be available to cover the decommissioning costs at all times”.5 however, it remains to be seen whether beis and/or the parties to the dsa will meet this objective. certain industry commentators are concerned that beis has failed adequately to monitor the methodology underpinning the amounts paid by participants under dsas, leading to a historic under-provision in decommissioning security. impact of the oil price on decommissioning security a field that was economically viable when the oil price was at us$100 per barrel is likely, at the current oil price of us$ 30-50, to no longer be viable or only be viable for a significantly shorter estimated field life. 4 oil and gas uk, ‘decommissioning security agreement (dsa), updated october 2015 (op021)’ available at oil and gas uk. www.oilandgas.uk 5 beis, ‘decommissioning of offshore oil and gas installations and pipelines under the petroleum act 1998’ (guidance notes version 6, march 2011), annex g, paragraph 2. decommissioning security disputes 24 decommissioning security, which could previously be spread over numerous years of ongoing production, can now only be spread over a much shorter timeframe. more security has to be put aside each year. this is occurring at a time when oil and gas operators are under significant pressure from drastically reduced revenue streams. in addition to there being fewer years of revenue from the field from which security can be drawn, decommissioning may now take place far earlier than previously estimated. the recently established oil & gas authority (“oga”) and the uk continental shelf maximising economic recovery (uk mer) strategy have only caused further uncertainty. uk mer6 provides as follows: a. in the introductory sentence: “a. all stakeholders should be obliged to maximise the expected net value of economic recoverable petroleum from relevant uk waters…c. compliance with the strategy may oblige individual companies to allocate value between them, matching risk to reward. however, while the net result should deliver greater value overall, it will not be the case that all companies will always be individually better off…”.7 b. under paragraph 7, defining the central obligation under uk mer: “relevant persons must, in the exercise of their relevant functions, take the steps necessary to secure that the maximum value of economically recoverable petroleum is recovered from the strata beneath relevant uk waters.”8 c. under paragraph 14: “in considering the configuration required by paragraph 13, relevant persons must give due consideration to: … b. whether or not any infrastructure already in existence could be used in such a way as to reduce costs or otherwise increase the recovery of economically recoverable petroleum from the region. this includes consideration as to whether any such infrastructure (whether proposed to be constructed or already in existence) could be so used if reasonable adjustments were to be made to it.”9 d. under paragraph 16: “owners and operators of infrastructure must ensure that it is operated in a way that facilitates the recovery of the 6 decc, ‘the maximising economic recovery strategy for the uk: presented to parliament pursuant to s 9g of petroleum act 1998 as amended by the infrastructure act 2015’ (decc, uk). 7 ibid, 2. emphasis added. 8 ibid, 4. emphasis added. 9 ibid, 4-5. emphasis added. the denning law journal 25 maximum value of economically recoverable petroleum from (as applicable): a. the region in which it is situated; and b. where the infrastructure is used by or for the benefit of others, the regions in which those others are situated.”10 e. under paragraph 20: “before commencing the planning of decommissioning of any infrastructure in relevant uk waters, owners of such infrastructure must ensure that all viable options for their continued use have been suitably explored, including those which are not directly relevant to the recovery of petroleum such as the transport and storage of carbon dioxide” (emphasis added). f. under paragraph 22: where the oga produces a plan “which relates to the obligation in paragraph 20, it may identify particular pieces of infrastructure the decommissioning of which would prejudice the maximising of the recovery of economically recoverable petroleum in a region.”11 it is clear from the above provisions that operators seeking to decommission their economically unviable assets may face barriers in doing so regardless of the negative impact it may have on their financial status. this is particularly the case for offshore infrastructure that if decommissioned, may result in a decommissioning domino effect on neighbouring installations and tie(-)ins thereby decreasing the “expected net value of economic recoverable petroleum from relevant uk waters”.12 for such ‘critical’ infrastructure, what cop date should be used? what would the revenues be (if any) and who should bear the costs of maintaining such infrastructure? should such potential costs even be included in decommissioning security calculations? if so, how are they to be estimated? the magnified impact of decreased revenues, increased costs, short cop timeframe and uncertain variables has, for the first time, caused those seeking to protect themselves from potential liability to carefully scrutinise both the current level of decommissioning security in place and the calculations by which the level of future security is defined. decommissioning security disputes the standard-form dsa requires that every year all of the first tier participants pay their respective share of (a) “net costs” (representing an amount equal to the best estimated cost of performing all decommissioning 10 ibid, 5. emphasis added. 11 ibid, 6. emphasis added. 12 ibid, 2. decommissioning security disputes 26 activities multiplied by a risk factor); less (b) “net value” (representing an amount equal to expected production receipts from the field) and the amount of security that the participant has already provided. both net cost and net value are assessed on a net present value (npv) basis. where the npv of the net cost exceeds the npv of the net value, security is required to cover the difference. as production continues, the intention of the dsa is that the amount of security increases so that it fully funds decommissioning at cop. as a result of prior beneficial market conditions, numerous industry participants consider that historically, optimistic assumptions as to future “net value” have been made. by making such optimistic assumptions of “net value”, the security required to meet estimated “net costs” has been less year-on-year resulting in serious under-provision of decommissioning security. this approach, on the part of first tier participants, may be explained by their wish to free up cash to invest in production activities or to reduce the asset retirement obligation required so as to leverage themselves further or position themselves for sale. current depressed market conditions have caused second tier participants (those benefitting from the security without paying in themselves) to become concerned with the adequacy of the security in place. depressed production revenue due to falling oil and gas prices is causing second tier participants to seek higher levels of security. second tier participants that sold their interest many years ago are liable to contribute to decommissioning costs if the first tier participants default. optional language under the standard-form dsa governs whether second tier participants have a right to approve the operator’s proposals or merely comment on them. these requests for additional security from second tier participants are coming at a time where falling revenues and increasing costs are impacting on first tier participants’ ability to provide the greater levels of security sought. in addition, not all of the first tier participants will have the same funding profile. parties to a joa may legitimately take differing positions on the assumptions made by the operator. this is particularly the case for those first tier participants who are highly leveraged through reservesbased lending. for these new-entrant oil and gas operators, providing suitable estimates is, on a practical note, an unenviable task. not only is calculating accurate decommissioning estimates, no matter how carefully done, not an exact science, but smaller oil & gas operators, who are keen to match costs to revenues, have also reduced investment in much needed personnel (such as specialist engineers) and technology (such as decommissioning software). the denning law journal 27 decommissioning relief deeds issues with potential shortfalls in security are a particular problem for those who entered into decommissioning relief deeds (drds). drds permit security to be provided on a post-tax basis. security is, as a result, no longer being paid in at a (higher) pre-tax relief basis. since october 2013, when drds were introduced, a reduction in both any previously existing decommissioning security “buffer” that resulted from payments having been made on the (higher) pre-tax relief basis, and the absolute amount of security set aside has arisen. this is, unless, of course, a higher risk factor has been applied to net costs. a higher net cost risk factor, however, is unlikely to have been applied. first tier participants, incentivised to maximise cash flows, are likely, where possible, to have used lower risk factors, higher reserve estimates and other metrics to reduce the level of decommissioning security due under a dsa. second tier participants may have been comfortable with lower estimates for the calculation of security due to net costs having been calculated on a pre-tax basis and making forward assumptions based on the vibrant oil and gas market at the time. the move to a post-tax calculation of net costs has exacerbated this historic under-provision of security. the recalculation and review of decommissioning security calculations is now being carefully monitored by both co-venturers and by second tier participants. there has been an increase in requests for data, closer scrutiny of projections of “net value” and “net costs”, and a greater interest in the use of expert determination in the event that the participants cannot agree. disputes over the calculation of net cost net cost represents the best estimated cost of performing all decommissioning activities at the time at which they can be best expected to need to be performed. there is significant scope for disputes over this calculation. a. when will decommissioning occur? a core assumption input into the calculation of net cost is the expected date of decommissioning. the estimated date for decommissioning has a significant impact on the level of security to be provided. the hope that ageing infrastructure might find alternative economically viable uses, as some structures (particularly pipelines) could be used via tiebacks and brownfield developments, currently seems challenging in the current low oil price environment. of course, decommissioning may now be delayed if such infrastructure is required by the oga to decommissioning security disputes 28 be maintained in accordance with uk mer. however, there is no guarantee that this will be economical. other new technology such as enhanced oil recovery (eor) could also have postponed the date of decommissioning, but this is also only made economic by high oil prices. these possible ways to reduce net cost, which could have been discounted back (through the npv calculation) so as to reduce the amount of security required (and also to have postponed the trigger date for provision of security) are unlikely to be viable. this is significant, because these assumptions might legitimately have been included in previous calculations, made when the oil price was higher. disputes are arising wherever these assumptions are being reversed out and falling oil prices are bringing the expected date of decommissioning forwards. where optimistic assumptions have been made, inadequate security is likely to be provided. b. what is the scope of decommissioning? there are many different forms of installation. most installations will require an individually tailored and untested method of decommissioning. with so many variables, how accurate can the ‘net cost’ calculation be? it is common to underestimate decommissioning costs. for example, the decommissioning close out reports of the fife, fergus, flora and agnus fields highlight that costs overran by approximately 20%.13 further scope exists for disputes over whether net costs should be based on a ‘left in place’ basis for installations capable of attaining a derogation (allowing the offshore installation to remain wholly or partly in place rather than being disposed of on land).14 adopting this approach would reduce net cost. beis guidance suggests it is likely to require the decommissioning costs for large concrete structures to be 13 hess, ‘fire, fergus, flora and angus fields: decommissioning programmes close-out report’ (hess, document no: 32 adp -016). 14 a limited number of installations may be eligible for derogation from the prohibition on the dumping, or leaving wholly or partly in place, of offshore installations. derogation will only be granted where it is a preferable means of disposal than reuse, recycling or disposal on land. the denning law journal 29 estimated on this basis. 15 for example, such a derogation would be likely for the brent field platforms (bravo, charlie and delta) which consist of concrete gravity-based structures (gbs) weighing 300,000 tonnes each.16 derogations may, however, become less common due to advances in technology, and if this approach changes net cost may increase significantly.17 on the other hand, concerns about the carbon budget of extensive decommissioning operations, where every component is laboriously cut up and sorted onshore, may alternatively lead to more derogations being granted. it is easy to see how there is scope for disputes as to the most appropriate estimate to be used. c. what is the proper risk factor to apply? the oil & gas uk standard-form joa provides for the use of a risk factor in the security calculation. this is to provide a degree of caution against possible rises in decommissioning costs.18 net cost estimates will usually be prepared on a p50 basis. this assumes that there is an equal chance of there being under-spending or over spending as against the costs estimate. the risk factor reflects uncertainties about the net cost estimate. the risk factor may not always have been calculated, or updated, in a fully statistically rigorous manner. these uncertainties should reduce with time as the operator obtains a better understanding of these costs, and optional language in the dsa allows the contingency to be increased or reduced in a stepped process. presently, the ease with which this variable can legitimately be changed is making it a target for attention and a prominent source of disputes. 15 beis (n 6) annex f para14. 16 oil & gas uk, activity survey (oil and gas uk, 2015) 69 available at <http://oilandgasuk.co.uk/wp-content/uploads/2015/07/ec044.pdf> accessed 9 november 2016 17 oil & gas uk, decommissioning security agreement guidance notes (march 2009), 38. 18 ibid, 39. decommissioning security disputes 30 disputes over the calculation of net value net value represents the best estimated production and other receipts from the field for so long as it is estimated that the field will remain in production. there is significant scope for disputes over this calculation. a. what oil and gas prices to use? fluctuating oil prices will have a significant impact on net value. regular recalculations may lead to periodic changes as oil and gas prices rise and fall. assumptions as to future oil and gas prices should be clearly stated in the dsa.19 published indices for oil and gas prices will need to be agreed. any gas price indexation formula contained in any existing gas sales contract should be used when calculating future gas revenue.20 essential to this calculation is the date on which production will cease. with so many variables, even slight adjustments can give rise to very significant variances between the parties. since the introduction of drds, net revenues and net costs are normally inputted on a post-tax basis. this includes royalties, corporation tax/supplemental charge, and any prt that is applicable. recent changes to these taxes will need to be taken into account. net value does, however, also take into account any tax relief or grants given or expected to be given unrelated to the costs of decommissioning. the operator is required to perform two calculations, one with and one without the effect of the relief. b. what reserves data should be used? optional language under the standard-form dsa governs whether only reserves estimates approved by the joint operating committee appointed under the joa to operate and manage the licence area are to be used to calculate net value, whether the operator’s best estimates, acting as a reasonable and prudent operator, are adequate, or other alternatives. 21 commonly, newer entrants into the uk continental shelf (ukcs) will seek to maintain the level of reported reserves. 19 ibid. 20 oil & gas uk (n 17) 39. however, see below in relation to concerns as to confidentiality. 21 oil & gas uk, industry model form decommissioning security agreement (september 2013) appendix 5 paragraph 7.10. see also oil & gas uk (n 17) 39. the denning law journal 31 there is concern that this may lead to the reserves estimate used in the calculation of net value being optimistic, which would result in the understatement of security. without clear drafting, there is significant scope for disputes on these assumptions. c. how to account for tiebacks and other revenue? many fields receive significant revenues from tariff and other receipts from third parties, such as tiebacks. as these form revenue from the field, absent express provision in the dsa to the contrary, they should be included. a dispute may emerge as to the degree of certainty required that these receipts will accrue. on one extreme, it is arguable these receipts should only be taken into account in situations where send-or-pay arrangements ensure that such tariff income is secured. on the other, such tariff income can be taken into account even though no agreement has been concluded, or where such agreement has been concluded but is of only a limited duration, so long as there is no other route to export the tieback. the standard-form dsa contains options to address these alternatives. 22 expert determination under decommissioning security agreements under the oil & gas uk’s standard-form dsa, the cost estimation based on the foregoing forms an important part of an operator’s decommissioning schedule and budget (‘the proposed plan’). the operator will submit the proposed plan for approval under the joa. disputes may be referred to determination by an expert, if:  the proposed plan submitted and/or performed by the operator is challenged;  the operator fails to produce the proposed plan or perform the cost estimation; or  the operator’s determination that decommissioning has been completed is challenged. 22 oil & gas uk (n 17) 19. decommissioning security disputes 32 an expert is also engaged when the cost estimation performed by the operator needs to be independently reviewed, even where no dispute exists between the parties to the dsa. to address this last issue, the standardform dsa provides options that allow: (i) for a review of the net cost, net value and – where a drd applies prt relief, calculations by an expert at regular intervals; or, alternatively, (ii) to have less frequent reviews initially followed by annual reviews later in the field life. a provision that a review is triggered if the operator believes that there has been a change in net cost or net value over an agreed tolerance may also be included. the likely time scales for these steps?] a. identifying the right expert as decommissioning involves a variety of specialised and technical stages, any expert chosen may need assistance from multiple specialist disciplines such as reservoir engineering, offshore engineering, process engineering, drilling, subsea contractors, heavy-lift/barge contractors and disposal/refurbishment contractors. the standard-form dsa provides for this and allows the expert to obtain technical and legal advice. if multiple expert disciplines are engaged, the expert will need to rely on and assess the views of several other experts, not just rely on his own qualifications and experience. these views would all need to have been commissioned23, provided to and then considered by the expert before the preliminary decision can be released. delay in any of the technical elements would prevent further progress. it may also be hard for the parties to have confidence that the expert even with this technical assistance, can manage all technical and procedural aspects. this is particularly the case if any party is seeking to elongate the process, for example by referring the expert to greater and greater volumes of documents that are said to be relevant as, without express direction from the expert, time bars to control or prevent this will not exist. in the construction industry, where multiple specialisms are often required, a trend towards the appointment of legally qualified adjudicators rather than those with engineering qualifications has 23 commissioned by the expert (normally with the approval of the parties in dispute). the denning law journal 33 evolved. given the similarities, it shall be seen whether the offshore decommissioning industry finds it preferable to appoint a legally trained expert possessing relevant ukcs decommissioning experience, who can request technical assistance from relevant disciplines. the legal and procedural expertise, for example familiarity with hearing the parties, determining questions about admissibility of documents, setting submission deadlines and weighing up competing evidence may be preferable to assist good governance of the procedure in complex multiple disciplinary cases. b. appointment of the expert following any required negotiations stipulated in the dsa, a reference to an expert can be made. for challenges to the proposed plan (but not for other challenges), the standard-form dsa limits the right to refer the matter to the expert to the party objecting to the proposed plan (the “objecting party”). this might present difficulties for the operator who would not appear to have the right to refer the matter to the expert should the objecting party fail to do so nor absent either unanimity between the parties or determination by the expert, should the proposed plan become approved. it may be necessary to apply to the court for an order that the objecting party refer the matter to the expert or, in default, be deemed to have done so. conversely, under the standardform dsa only the operator and not the other parties to the dsa can submit the cost estimation for independent periodic review. however, if the operator upon notice to do so fails promptly to comply, any other party to the dsa may itself refer the cost calculation to the expert. the standard-form dsa contains options for appointment of the expert; either the expert is selected by unanimous vote of the parties to the dsa or each party to the dsa will nominate three candidates who are ready, willing and able to act. those candidates will then be scored by all parties to the dsa in order of preference. the expert need not be an individual person – a firm or company can be appointed and the expert may not have “any financial or personal interest in the result”. this restriction is very wide and does not allow for nominal shareholdings or for the expert to have financial connections to the parties. coupled with the absence of immunity from suit, this may deter acceptance of the appointment. many candidates with experience of decommissioning are likely to work for the main offshore contractors and connections to some of the parties in dispute may be probable. if agreement on the selection of the expert is not possible within 10 decommissioning security disputes 34 business days, the standard-form dsa allows any party to the dsa to apply to the president of the energy institute to appoint the expert. the energy institute is a reliable and effective appointing authority. c. the scope of the expert’s power expert determinations, despite being capable of quickly and effectively resolving technical disputes, do not without specific provisions to the contrary require:  adherence to rules of natural justice such as the right to a hearing;  the expert to come to decisions within (rather than outside) the range suggested by the conflicting parties; or  the expert to be independent of the parties. unless agreed otherwise, which for obvious reasons it often is, decisions of experts are binding even in the presence of fraud or manifest error. decisions of experts are also binding in instances where the expert sets about answering the wrong question. this introduces a degree of uncertainty in the process. the standard-form dsa seeks to limit this, by requiring that an objecting party express a stated written objection. in any challenge to the proposed plan (but not the operator’s determination of completion of decommissioning), the expert must consider and determine this area of concern. the expert cannot step beyond the scope of this challenge in order to re-determine other elements. limiting the expert in such a way also seeks to limit the cost of the expert process. in practice, parties may seek to raise additional statements of objections at a later stage in proceedings. judicious use of the expert’s power to control the procedure of the determination will be necessary in deciding whether supplemental statements of objections are permissible and within what time frame. d. procedural matters for determination by the expert the standard-form dsa suggests that the parties to the dsa agree carefully defined assumptions which the operator must apply in drawing up the proposed plan and which the expert must also follow. these may be contentious and will be subject to individual negotiation between the parties to the dsa. in addition to the assumptions, it is the denning law journal 35 common practice in expert determinations for an expert and all those appointing him to sign terms of reference further specifying the expert’s obligations and remuneration. in relation to documents, a significant hurdle to overcome in practice is the task of supporting the operator’s assumptions with corroborative material, much of which will be confidential. revealing information about gas sales prices and day rates to other industry participants might also infringe competition law. unlike arbitration, it is not fatal to the integrity of an expert determination for the parties in dispute to agree to provide documents to the expert without copies to other parties; however this may not be an ideal solution in many cases due to such unilateral communications undermining confidence in the fairness of the expert process. e. timing very speedy determination is envisaged under the standard-form dsa. it is desirable for any reference to the expert to be completed in time to allow security to be replaced before existing security expires otherwise, interim invoices may need to be raised. the expert must notify the operator of his preliminary decision within 30 business days of acceptance of his appointment. the parties will then be given 10 business days to make representations. the expert must, having taken account of such representations, reach his final decision within 30 days of notification of his preliminary decision to the operator. there is potential for references to an expert to have a very broad scope. the timings envisaged may not, however, be feasible, particularly for large or multi-installation assets, or for the review of the first cost estimation for the installation. f. the expert’s determination the determination can be valid even if only a simple value or date (as appropriate) is determined, unless a reasoned determination has been agreed to be given. if the expert determines that greater security be paid than estimated by the operator, that additional security is required to be paid. decommissioning security disputes 36 g. costs of the expert determination options exist in the standard-form dsa for payment of the expert’s fees and expenses depending on the nature of the dispute being referred. the starting premise, however, is that the objecting party pays. options also exist in relation to the recovery of a party’s own legal and other costs, which will be the subject of individual negotiation. conclusion decommissioning security is becoming a topic of increased concern. given current market conditions, unexpected levels of additional decommissioning security may significantly impact participants’ financial capabilities. this is particularly in respect of highly leveraged new entrants. there is much scope for disagreement over the amount of security that is contractually required. uncertainty surrounding the accuracy of the variables involved in calculating decommissioning security has increased due to the fall in market prices. participants are more likely to take different positions on the inputs and accuracy of all the variables involved. larger and smaller participants may now have diverging incentives. the ability of many participants to access the necessary funding is in doubt. sensitive commercial negotiations are being undertaken, and securing the unanimous approval from all first and second tier participants of the amounts of decommissioning security to be paid is now harder to achieve. all this is resulting in the dispute resolution procedures governing decommissioning security being put to the test. this is my life the rt. hon. lord denning, master of the rolls * mr chairman, thank you for inviting me here. thanks also to messrs child & co., for providing the occasion. as you all know, i have just had my birthday, eighty years old. but 'not out' yet, i hope! i will tell you a story given to me on my birthday. to introduce it, i remind you of one of my after-dinner stories. in responding for the guests, i say: "there's nothing i like better than to eat with nice people, to drink with nice people, and to sleep with a contented mind." some students from malaysia capped it. the president, tun suffian, sent me on my birthday a copy of the straits times in kuala lumpur. this is how they interpreted it: "he expounded his philosophy of life to have a clear conscience and to sleep with a contented woman." i get into trouble with husbands, too. i expect you have heard of the deserted wife's equity: and of the wife's share of the matrimonial home? this is what a husband wrote to me: "dear sir: you are a disgrace to all mankind. to let whores break up homes and expect us chaps to keep them. they rob us of what we've worked for and put us on the street. i only hope you have the same trouble as us. so do us all a favour take a rolls and run right off beachy head and don't come back!" i did not do them that favour. here i am still. i'm a little nervous in the presence of so many members of the house of lords. they think i have been turning things upside-down, standing them on their heads. for them i may parody the lines of lewis carroll: "you are old, master of the rolls," the young man said, "and your hair has become very white, and yet you incessantly stand on your head. do you think at your age it is right?" "in my youth", the master replied to his son, • the child & co. lecture 1979 delivered in the inns of court school of law on i st march, 1979 and reprinted by kind permission of lord denning and child & co. 17 the denning law journal "i feared it might injure the brain, but now i'm perfectly sure i have none, why, i do it again and again." this evening my title is: "this is my life." in a way all of us are actors. to make your points effective, you must not only be the advocate. you must be the actor, too. so i'm going to start with shakespeare, which you know perhaps as well as i but i will repeat it again for you tonight: "all the world's a stage, and all the men and women merely players: they have their exits and their entrances; and one man in his time plays many parts, his acts being seven ages." (i've been through them all.) "at first the infant, mewling and puking in the nurse's arms. and then the whining school-boy, with his satchel, and shining morning face, creeping like snail unwillingly to school." (i've done all that, except the whining, i hope.) "and then the lover sighing like furnace, with a woful ballad made to his mistress' eyebrow." (i've done all that. have you? do young men nowadays write poems to their girl-friends?) "then a soldier full of strange oaths, and bearded like the pard ... seeking the bubble reputation even in the cannon's mouth." (i'll tell you about it later. i've done it.) "and then the justice in fair round belly with good capon lin'd ... full of wise saws and modern instances." (i hope i have not the fair round belly.) "and so he plays his part. the sixth age shifts into the lean and slipper'd pantaloon with spectacles on nose and pouch on side, 18 this is my life his youthful hose well sav'd, a world too wide f or his shrunk shank." (have i got to that? i don't use glasses even now to read. i haven't come to the last scene of all. i'll wait until i retire for that.) "last scene of all, that ends this strange eventful history, is second childishness and mere oblivion, sans teeth, sans eyes, sans taste, sans everything." i am going to take you this evening to some of those ages in my life. i'm going to start with the soldier, just to remind you youngsters of what some of us have been through. in march 1918, when i was just nineteen, the germans had attacked and driven our forces back just before the gates of paris. we, the youngsters, after only a few months' training, were rushed out to hold the line. these were lord haig's words to us: "there must be no retirement. every position must be held till the last man. with our backs to the wall and believing in the justice of our cause, we will fight to the end." so we did. when i got out there a second lieutenant in the sappers there were great gaps in our line. we had to dig in under shell-fire. we held them back. after four months we went forward building our bridges under enemy fire eventually to victory. after the army, i went back to oxford. i read mathematics. i taught at winchester. i didn't want to be a schoolteacher all my life. so i returned to oxford and read law quickly in one year. i came to the bar. so we started on our way. how different it was then for us than for you now. there were no government grants at all. we had to get the money as best we could from scholarships, and the like. there were no early briefs. i made only £70 in my first year. it was seven years before i made a thousand a year. only then was i able to get married. gradually i got into interesting work. can you tell me the name of this one? it was when i was a junior. there was a lady in north wales with a little tobacconist's shop. a salesman came and sold her an automatic machine, payable by instalments. he said to her: (i remember now the long brown form) he said: "sign here." so she signed there. the machine was delivered, but it didn't work. they sent the mechanic down three times. still it wouldn't work. so she didn't pay the instalments. the company took her to the county court. when she said it wouldn't work, they said: "look at the clause." there in very small print, if you could read it: "any condition or warranty, expressed or implied, by statute or by common law, is hereby excluded." 19 the denning law journal the county court judge managed to get round that clause somehow. the lady took the case to the court of appeal. i was there instructed for the company. i said to lord justice scrutton: "but look, she's signed it. even though she couldn't, and didn't read it, in the absence of fraud she's bound." lord justice scrutton said: "yes, yes, in the absence of fraud, or, i would add, misrepresentation", he said, "she's bound." so we, the company, were victorious in the court of appeal. in those days i wasn't concerned so much with the rightness of the cause. i was concerned only, as a member of the bar, to win it if! could. but, the reporter was wise. he didn't think much of it. he didn't record it in the law reports. but my company had it privately printed: and i went round the county courts of england winning case after case most unrighteously for this company. that was my first contact with exception clauses. we have done a lot more since. i won't go through them now. we invented the doctrine of fundamental breach. we got rid of those exception clauses altogether until the house of lords in the suisse atlantique] case said we were wrong. but we've been getting round that case ever since! i would tell you of another case as ajunior. (these all have their lessons for you, which i will tell you.) this is a dramatic story. there was a major rowlandson once who insured his life for £80,000. the insurance was due to come to an end at three o'clock on a june afternoon. if he couldn't find the premium, it would lapse. if he died before three, all the money would come in. if he died after three, there would be no money at all. that afternoon, at half-past two, he went to his solicitor in chancery lane here. at a quarter-to-three, he came out and called a taxi. he said to the taxi-driver: "drive me to my flat in albemarle street"; and added: "as you pass st james's palace clock, look at the time and note it." the taxi-driver went along fleet street here and the strand. he went along the mall. as he passed st james's palace clock, there it was. three minutes to three. up stjames's street. the taxi-driver heard a bang, stopped the taxi, got out. there in the cab was major rowlandson dead! two minutes to three just in time! we were instructed for the personal representatives. we claimed against the insurance company for the money. they said no. it was a crime: and we couldn't get it, although the contract said we could. we said that major rowlandson was non-compos mentis. it was tried before mr justice swift in a special jury. i was led by sir william jowitt. he put the case dramatically to the jury. "three minutes to three", he said, "two minutes to three." the judge was mr justice swift. he went out to lunch. he always had a good lunch, did mr justice swift! he liked one or two tots of whisky. in the afternoon he came back. in summing up to the jury, he said: "wasn't this the act of a gallant english gentleman, killing himself for the sake of his creditors?" the jury found him of sound mind. the court of appeal said that, as a result, we could not claim the money. we went to the house of lords. sir william jowitt led me. he had to leave i. suisse allal/lique sodile d'amlemml marilime sa. v. rollerdamsche kolm cmlrale [196711 a.c.361. 20 this is my life early and turned to me; and, referring to the suicide of ophelia, said: "give them all that." i gave it to them. it didn't do any good. the house of lords said that suicide, filo de se, was the most heinous crime known to our english law. a man rushing into the presence of his maker unasked. so we lost. now let me tell the sequel. in the house of lords later we had a bill, now an act of parliament. 2 suicide is no longer a crime. attempted suicide is no longer a crime. we should have won that case now. and then the war. let me give a few pictures of the second war. i wasn't young enough to go to the front line again. i was the legal advisor to the regional commissioner of the north east. it was my task to detain people, the fifth columnists, under regulation 18h. 3 we detained people without trial on suspicion that they were a danger. there was a parson who was called the 'nazi parson' in a village in yorkshire. he had often spent his holidays in germany. the military authorities arrested him, and detained him. they were fearful that german parachutists might comc down to his lonely vicarage. thcy might sabotage our war effort by blowing up bridges, and the like. although there was no case against him, no proof at all, i detained him under' 18b'. the bishop of ripon protested, but we took no notice. '18b', you should know, was one of the regulations under which we had power of detention without trial. there are still some countries round the world where they have prevcntive detcntion, as it is called. i hope we shan't have it back again except in times of great emergency. but, let me remind you of what in those years lord atkin said in liversidge v. anderson: "in this country amid the clash of arms, the laws are not silent. they may be changed, but they speak the same language in war as in peace. it has always been one of the pillars of frcedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons, and stand between the subject and any attempted encroachments on his liberty by the executive, alert to sec that any coercive action is justified in law." that is the task of the judges today. to disallow any coercive action, except insofar as can be justificd by law. no matter whether it is coercive action by the executivc, or coercive action by a trade union, or coercive action by anybody, it is the duty of the judges to be no respccters of persons and be alert to see that any coercive action is justified by law. otherwise it is to be condemned. before i part from the second war, let me tell how things werc in london here during the bombing. when the flying bombs came, i was a judge. we sat in the basements of the law courts. on one occasion, when i was sitting, two witnesses 2. suicide act 1961. 3. defence of the realm general regulations detention orders 1939 978 superseded by 1681 miscellaneous amendments 18b (p.8 is). 4. [1942] a.c.206, 244. 21 the denning law journal came back after lunch with their faces bleeding and scratched by cuts from the flying bombs. they came and gave their evidence in the court before me. that is how the people of england withstood the onslaught of war. i would remind you of what winston churchill said at that time when the enemy were the other side of the channel with their overpowering tanks and aircraft: "we shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender." the people of london, the people of england, won through. perhaps i might conclude this part by those words which i would quote from shakespeare: "this england never did, nor never shall, lie at the proud foot of a conqueror, but when it first did help to wound itself. now these her princes are come home again, come the three corners of the world in arms, and we shall shock them: nought shall make us rue, if england to itself do rest but true." so there i leave the second war. but in the course of it, i would tell you of another dramatic case in which i was king's counsel. i was instructed by the attorney-general he gave a few briefs around to the silks to defend a young sailor who was charged with murder. he'd strangled a girl on southampton common. i went to see him the night before in the cells in winchester. there he was, dirty and unkempt. i asked him what his defence was. he said the girl had slapped his face. he had put his hands round her throat, and she died. was there any defence? not much of a defence of provocation so as to reduce it from murder to manslaughter. but i thought i would put it to the jury. i told the young man to clean himself up before the next day. there he was, when he was arraigned, as smart and nice a young sailor as ever you did see. the judge was mr justice charles, also of the western circuit. he ran dead against my client. i put him into the box and asked him: "did you have your ship torpedoed under you three times?" the judge boomed out: "many a sailor has had his ship torpedoed under him and he doesn't go strangle a woman!" next, when i was going to put my defence of provocation to the jury, the judge said he wasn't going to put it. there was not sufficient provocation here to reduce it to manslaughter. was i, as counsel, to put it? i did. it is the duty of counsel to put every legitimate defence. i put the defence of provocation to the jury. the judge did as he said he would. he told the jury that there was no defence of provocation here. that was virtually a direction to find him guilty of murder, because, if there was no provocation, it was clearly murder. well, it was a hampshire jury, and i'm a hampshire man! the jury found him guilty of 'manslaughter only'. the judge turned to the jury, and 22 this is my life said: "get out of the box. you've been false to your oaths. you're not fit to be there." as they left the box, they were heard to say "the judge was biased." (he's not the firstjudge to find that, ifhe goes too far one way, the jury will go the other way. that's what the juries on the western circuit have done ever since judge jeffreys' day though they gave in to him!) but, to finish the case the judge, addressing the sailor, said that he had to accept the verdict: but he went on and sentenced him to thirteen years' imprisonment. i thought that was too long, seeing it was manslaughter only, as the jury had found. so i told the sailor he could appeal if he liked, but i had to warn him that in those days the court of criminal appeal could increase the sentence if they so wished. afterwards (i think i've lost it now), i received a little note which he wrote to me from the prison in pencil. he thanked me. he said: "after considering all the circumstances, i have decided not to appeal." i'm sure he's been restored to his friends and relations long since. the moral of that story is: stick up to the judge. it's one of the duties of counsel to be courageous on behalf of his client, using all proper weapons, but no improper ones. so much for my time at the bar. early in 1944 i was made a high courtjudge. it was whilst i was arguing a case in the lords in which lord simon, the lord chancellor, was sitting. he appointed me to the divorce division. divorce i hadn't done any before. i went on circuit with mr justice cassels. he and i trying to get through the lists. he did 83 in one day. that was his record. i did 52. we had to do it. after eighteen months lord jowitt was lord chancellor. he transferred me to the king's bench. i was there for three years. one of the most instructive experiences is to be a judge of assize on an english circuit. in those days, different from now, capital punishment was the order of the day. flogging was the order of the day. was it wrong? i remember a youngster of eighteen coming behind an old woman of eighty and hitting her over the head and injuring her badly, and stealing her savings of £20 in money. i ordered him twenty-five strokes of the birch. was i wrong? i remember also trying a case at gloucester where an army officer, a captain, was charged with murdering his wife. he was a small-arms instructor. his wife led him an awful life, nagging and going for him continually. one day, coming back from his course, she went at him so much that he picked up his revolver and shot her dead pregnant as she was! was he guilty of murder or manslaughter? obviously of murder. words were not then thought sufficient provocation to reduce it to manslaughter. i so directed the jury. i don't know whether it was the tone of my voice or not, but i did tell them that it was to be their verdict and not for me. it was for them to come to their own decision. (i ought to tell you of a little incident at that trial so as to warn you that judges notice things. when the king's counsel for the defence was addressing the jury, he put his knee up with his foot on the seat a most inelegant stance to add to it, he had his fly buttons undone! be careful of your dress!) the jury found the officer guilty of manslaughter. i sentenced him to two years' imprisonment. all those in the gallery cheered. they had watched the case. they had heard the evidence, as i did. they 23 the denning law journal knew perfectly well that this man did not deserve capital punishment. that is why the jury found manslaughter only. they do not go by the strict law at all. they go by the good sense of the case. i suppose that i am one of the few judges left now who have passed sentence of death. i have on many occasions, using the formula "you shall be hanged by the neck until you are dead: and may the lord have mercy on your soul." the chaplain says, "amen." it is never done now. is capital punishment right or wrong? in giving evidence before the royal commission on capital punishment i was in favour of it for murder most foul. that was some years ago now. some years afterwards i changed my mind. it is not a legal question. it is a question of policy. it is an ethical question. is it right that we, as a society, should do a thing hang a man which none of us individually would be prepared to do, or even to witness? on such grounds i changed my mind. parliament was right to abolish capital punishment. it was right to abolish flogging. those days are past. before leaving my time in the king's bench, i must tell you of a case known to all students. it is the high treess case. some landlords let a flat in london early in the war at £200 a year. it was a lease under seal. during the war, because everyone was leaving london, they promised to reduce it by half, from £200 to £i 00. after the war was over they thought to themselves: "oh, it's all right. it is under seal. it is in a deed. so we will make him pay the full amount for all the time." they sued him for the full amount. i did not reserve judgment. i gave it straight off the reel. at the bar i had to do some research into all these cases. i held that if a person makes a promise intending it to be binding and to be acted upon, and it is in fact acted upon, he should not be allowed to go back on it. just that simple principle. what a flurry it caused! they still talk about it. i hope that most of you, the younger generation, will agree with me. so i pass by quickly the high trees case. i scamper on till we come to the court of appeal. i would have liked to have stayed longer as a high court judge in the king's bench. i found much human interest in hearing and seeing the witnesses, in summing-up to the juries, and in deciding cases. on my own, 1 especially enjoyed going my own circuit as a judge the western circuit. 1 got all the way round to exeter, and then (1 wanted to go on to winchester, because myoid mother was still alive) lord jowitt called me back to london to be the chairman of a committee on divorce. mark you, we did some good on that committee. we got the divorces through for the men after the war in very quick time. only too often the wives had gone off with other men and had children by them. so it was quite right that divorces should be granted quickly. the committee made its report in three months. it was implemented at once. we devised a useful stratagem. we kept divorce in the high court by getting county court judges to do the work. 5. ceillral lolldoll properl)' tmsl ltd v. hixh trees hol/se ltd. 119471 k.b.130. 24 this is my life so i went to the court of appeal. when i was a judge of first instance sitting alone i could and did do justice: but in the court of appeal of threc i found the chances of doing justice were: "two to onc against". i found myself sitting with chancery collcagues. i can tcll you a truc story about them. lord justice somelvell, a good common lawyer, found himself every term in the chancery side of the court. lord evershed, my predecessor, had put him there, where they're supposed to do equity. you know the maxim of equity "he who comes to equity must come with clean hands." lordjustice asquith came to me one morning. he said to me: "i can't think what's come over our brother somclvell lately. always before he goes into court he will kcep washing his hands." but lord justice somelvell capped it himself a day or two afterwards. we wcre waiting for him, lord justice asquith and i. he arrived, and explained why he was late. he had had a puncture in his tyre on constitution hill and had to change the tyre. there he was with his hands all dirty. we said: "aren't you going to wash your hands before you go into court?" he said: "it doesn't matter today. we're in the divorce court today." those were exciting times in the court of appeal. we saved a lot of deserted wives. we got on with them quitc well. we did not let the husbands turn them out. nor could a mistress. nor a bank. but the house of lords said we were wrong. it was immediately rectified by parliament. then there were exception clauses. we managed to get round thosc by the doctrine of fundamental breach. if a person is guilty of a breach which goes to the vcry root of the contract, we held that hc couldn't rely on the exemption clause. we didn't do too badly till the house of lords reversed it. but it has been put right now. we can look to see whether a clause is reasonable or not. if it is not reasonable, wc can hold it to bc bad or not reasonable to apply. so all's well now, after all these years. at all events i hope you will find it so. then i went to the house of lords. i was there for five years. i didn't want to stay there much. they do not have the same number of cases as we do. but in the vacations i thought i'd keep my hand in with the crime. i was chairman of quarter sessions at lewes at east sussex. (that was possible before the beeching commission did away with quarter sessions.) i will tell you a story about it. it's a little bit exaggerated, but the substance has some truth in it. the first case i had at lewes was a man who was charged with driving a car under the influence of drink. i summed up in my most impartial and impeccable manner. the jury came, i won't say to the most just result, they came to the usual result they found him 'not guilty'. so the next case i thought i'd try different tactics. this was a man who was charged with being in possession of house-breaking implements by night. this time i turned to the jury. i put on my most sarcastic and ironic manner. i said to them: "members of the jury, if you think the accused was at the door at midnight intending to present these implements to the householder as a gift as a tribute of esteem in which he held him, then of course you will find him not guilty." they did. 25 the denning law journal one day in the house of lords, lord kilmuir turned to me at lunch. (we all lunch together, the law lords in the lords.) he said: "would you like to go back to be master of the rolls?" lord evershed was just retiring. i said: "yes, i would." so i went back to the court of appeal. i've been there sixteen or seventeen years now. was i right, or was i wrong? a lot of people have asked me: "why did you let yourself be demoted like that?" the answer is that i would much rather be in the place where i've got some influence on the development of the law. soon after i went back i was asked to do an important job. you youngsters will not have heard ofmr profumo, the secretary of state for war. he had gone out with a young lady called christine keeler. it was said that he went into her room as the russian attache was coming out. some politicians thought they had a good thing on this. here was the secretary of state for war getting embroiled with a russian spy. oh, the turmoil! the rumours that went round! the ministers of the crown, they all were having their characters taken away by rumour. so much so that someone had to enquire into it. you will find that when governments are in difficulty, the one person they can rely upon, and whom the people of england will trust, is a judge, because he's independent and impartial (no civil servants or anybody like that). see how they call on lord scarman, quite rightly, from time to time. whether it was right or wrong, they did call upon me for the profumo enquiry. i did my report in about two-and-an-half months. i had to sit through the long vacation. i did it all by myself. i believe it did some good. after that case they had a new interpretation of the two eras of christianity b.c. and a.d. b.c. is 'before christine'; and a.d. is 'after denning'. the master of the rolls is ex officio the chairman of the magna carta trust. in 1965 it was 750 years since the year 1215, when the barons came from the other side of the river at staines and the king came from his castle, the great keep at windsor. they met on 15th june in the meadow which is called runnymede. there the rule of law was founded, not only for england, but all the great territories overseas. the master of the rolls was there. he was one of the few there who could write. he wrote it all down in latin. stephen langton, the archbishop, drafted most of it. i can recite two of the most famous chapters. the first guarantees freedom under the law: "no freeman shall be taken, imprisoned, be disseised, outlawed, banished, or in any wise destroyed. nor will we proceed against him or prosecute him, except by the lawful judgment of his peers, and by the law of the land." the next guarantees the due administation of justice: "to none will we sell, to no-one will we delay or deny right or justice." those are the words which have come down through thc centuries. they have done much to build the character of the english people. the americans took them, with the rights of englishmen, to virginia, and to massachusetts. they are in their charters. 26 this is my life but, when i see some of the things that happen today in england strikes, blackings, secondary picketings whatever you like to call it, i remember kipling's words: "whenever mob or monarch lays too rude a hand on english ways, a whisper wakes, a shudder plays across the reeds at runnymede." it was in 1965 that we celebrated magna carta. much has happened in the years since. you will, perhaps, have noticed them. i hope you will have noticed freddie laker's case.6 it was only because of the decision of the court of appeal that his skytrain ever got into the air. the minister had declared he would not give his sanction for it. he was influenced by the big b.o.a.c. and other airlines. he wouldn't give his sanction. he claimed a right by his prerogative. we declared that the secretary of state had misused his powers. so, freddie laker got his sky-train into the air. whenever ministers abuse or exceed their powers, i hope the judges will be able to put a restraining hand upon them. 'the master of the rolls' is an old old title. lots of people don't know what it means. i will tell you of a nice true letter. it was from international students' house. it said: "dear lord denning, i am an indian citizen. i graduated in mechanical engineering in the university of london and was awarded a master of science degree. i feel i have the necessary qualifications, motivation, energy, drive and personality to begin a successful career in an automobile industry. i will ever remain grateful to you if you would kindly help me to begin my professional career with your company, the rolls royce motor company." so, there you know who the master of the rolls is! may i just say a word to those of you on coming to the law. i would quote a few words of francis bacon,7 one of the great sons of this house of gray's inn (i'm very proud they recently made me a bencher) where i am speaking this evening. he said: "i hold every man a debtor to his profession. from the which as men of course do seek to receive countenance and profit. so ought they of duty to endeavour themselves by way of amends to be a help and ornament thereunto." try to be a help and ornament in the profession into which you come. law is the foundation of the civilised society. unless we maintain law and order, society itself will crumble. 6. laker ainvays v. departmmt of trade [1977] qb.643. 7. preface to the maxims of the law. 27 the denning law journal lastly, the words of an american poet, van dyke: "four things a man must learn to do if he would make his record truc. to think without confusion clearly, to act from honest motives purely, to love his fellow-men sincerely, and trust in god and heaven securely." may you all make your record true. at the end, these few words of hilaire belloc: "from quiet homes and first beginnings, out to the undiscovered end, there's nothing worth the wear of winning but laughter and the love of friends." are you not are wc all not in law, friends in pursuit of truth and justice? let us do our part in it. 28 lord denning and eec law a. 1. l. campbell'*' the purpose of this article is to make a general survey of lord denning's views and decisions concerning eec law. it will not assess particular decisions, but will consider his contribution to the reception of and understanding of eec law. the impact of lord denning's written views in particular has been as striking as his prose. the contribution of lord denning seems to have lain partly in his ability to communicate to the profession and to the general public the importance of the legal changes incurred by u.k. entry into the eec. it has been said that, prior to the entry of the u.k. into the eec, "the learned journals, and, to some extent, the less learned press, were full of anxiety that the english lawyer and, above, the english judge, would not know how to compete with this new system". 1 denning was in a position, as master of the rolls, to playa central role in the development of the english reception of eec law. it is arguably fortunate that a judge such as denning with a penchant for communication and for an ability to rethink the law, and with a temperament for accepting, not resisting, change, was in this position. after u.k. accession to the eec denning was over 70, having already had a lifetime in acquiring one legal tradition and at an age when resistance to change is strong. it is to denning's credit that though he may usually have come down on the side of english law where there was an international element, towards the end of his judicial career he faced "realistically" the "incoming tide" of eec law. z it can be said that he made a deliberate effort to contribute to the understanding and reception of eec law. he established lasting and influential, if controversial, guidelines on when to refer questions to the european court, as well as attempting '"lecturer in law, university of aberdeen. the author is grateful to his colleague mr p. r. beaumont and to mr r. r. paisley for helpful comments on a draft of this article. 1. mackenzie stuart, "the united kingdom and community law the first decade", the third lord fletcher lecture, november 1981, the lord fletcher lectures 1979-1982, solicitors european group (1983) pad. it has to be said, however, that a body of judges (lords diplock and hailsham as well as denning) anticipated few difficulties with interpreting eec law: see lasok and bridge, law and 1nstilll/ions oj/he european communities 4th ed., p.378, and bridge, "community law and english courts and tribunals; general principles and preliminary rulings", 1 european law review (1975) 13, at p.18. 2. the honjustice kirby, "lord denning: an antipodean appreciation", [19861delli/iug l.j. 103, at p.1lo. 1 the denning law journal to register the need to adopt different principles from those used in municipal law for the interpretation of eec law. in addition, he stated interesting views on eec supremacy. these contributions can be overstated: many of the remarks made by denning to be examined were in a sense obiter, and they cannot rival his substantive contributions in other areas of the law. but they arc interesting, and it could be said that lord denning's wish to make such statements beyond the essential needs of the case even reinforces the impression of a judge anxious to communicate the impact of eec law in general. denning chose the course of exposition and guidance. denning wrote at almost a popular level on the general impact of eec law in the u.k. in the times in 1973, just after u.k. entry to the eec, as master of the rolls and chairman of the british institute ofinternational and comparative law.3 he showed that he realised that the judiciary must confront new problems of the conflict between eec law and domestic law, and of when and how often to refer matters to the european court of justice, issues to which he returned on the bench. he also showed perhaps a certain defensiveness, in stating that this new law would be "grafted" on to the old. an objective to communicate the importance of the change brought about by eec law was shown vividly in the landmark case of bulmer v. bollinger4 the "champagne" case in 1974, when he said in a memorably graphic, though perhaps exaggerated, way, that: "the treaty is like an incoming tide. it flows into the estuaries and up the rivers. it cannot be held back."4 this was described as an "apt analogy", extra judicially, by lord fraser, and has also been referred to flatteringly by lord scarman as "dazzling", and as a "magificent simile", though not without qualification, by lord mackenzie stuart. 5 in 1978 lord denning reinforced the idea: "the flowing tide of community law is coming in fast. it has not stopped at high water-mark. it has broken the dykes and the banks. it has submerged the surrounding land. so much so that we must learn to become amphibious if we are to keep our heads above water."6 subsequently, denning was invited to give the first lord fletcher lecture, and continued the simile thus: 3 the times, 2 january 1973. 4 [197412 all e.r. 1226, at p.i23i; as to whether it is exaggerated see mackenzie stuart, supra n.i, p.38: "if i might continue in the vein of lord denning, one might say, however strong may be the currents in the estuary and forceful the incoming tide, these factors do not concern you overmuch if you happen to run a grocery shop in central scotland." 5 fraser, "the impact of community law on scots law", [19871 joun/al ~rthe l{lm sociery 0/ scolland 90; mackenzie stuart, the european communities (i/l{/the rule o/larl) (1977), i: cf mackenzie stuart, supra n. i, at p.38. 6 shields v. e. coomes (holdings) lid. [19791 ] all e.r. 456, at p.462. 2 lord denning and eee law "now in 1979 the tide is advancing. it is no use our trying to stop it, any more than king canute did. he got his feet wet; i expect we shall all get our feet wet too.,,7 the analogy is perhaps to some extent intentionally humorous, but it is not merely amusing, because it communicates to a perhaps conservative profession the need to adjust to the change which the passing of the european communities act 1972 had made. this concern was also reflected in denning's last book on law, what next in the law, where he wrote "we should cease to look at [the european court's] work with english eyes. we should look at it with european eyes ... as i have said before: 'the treaty is like an incoming tide. it flows into the estuaries and up the rivers. it cannot be held back'."s were lord denning remembered only for these rather apt similes that might well be worthwhile, since in a simple way they communicate so effectively the inevitable impact of an important new source of law and the extent of the change wrought by this "tide". as we shall see, lord denning has more recently expanded these similes. what, however, of lord denning's views in more detail? there are three convenient subdivisions of these views: the guidance to courts as to when they should refer to the european court of justice for a preliminary ruling under article 177 of the treaty of rome; the question of u.k. sovereignty; and the interpretation of eec law. preliminary rulings under article 177 of the treaty of rome national courts may, and in some cases must, seek a preliminary ruling on a question as to the interpretation of the treaty from the european court of justice. it is well known that guidelines as to when a decision on a question of community law is necessary and on the exercise of the discretion to refer, accompanied by other remarks on such references, were laid down by denning m.r. in bulmer v. bollinger.9 the guidelines on when questions should be referred to the european court have been influential in the sense of citation at least, even though this might to some extent be a form oflip-service, as a run through on lexis shows. though further important remarks have been made elsewherelo these guidelines remain a commonly quoted starting point for discussion in england, and indeed were cited by lord clyde in the first scottish civil court reference, from the court of session.!! kerr lj with the concurrence of gibson lj and russell lj has described them, after 13 years, as "a useful list ... 7 "the incoming tide", the first lord fletcher lecture, november 1979, the lord fle/cher lec/ures 1979-1982, solicitors european group (1983), p.4. 8 (1982), at p.301. 9 [1974] 2 all e.r. 1226, at p.1234. 10 see bingham j in commissioners of clistoms and excise v. samex [1983] 1 all e.r. 1042, at pp.i055-56; r. v. p(ymollth jus/ices, ex parte rogers [19821 2 all e.r. 175. 1i. stephen malcolm brown v. secretary of state for scotland, unreported but available on lexis; if. prince v. younger [1984] 1 c.m.l.r. 723, at p.727. 3 the denning law journal. which have stood the test of time."] 2 that is not to say that they were exempt from criticism or revision. the guidelines were widely criticised;]3 they have also not been formally approved by the house of lords. the extent of detail of the guidelines was arguably unnecessary, and stephenson lj in the same case indicated that guidelines should be "few".14 but denning's boldness in laying down such guidelines was possibly very helpful to lower courts, and to the profession, uncertain of european law. some of the guidelines do have an uncertain status, though this should not allow the general contribution to be overshadowed. denning's approach might be, and has been said to be, too restrictive of national courts' discretion to refer,]s which is a serious charge in view of the need for uniform jurisprudence on eec law, as overseen by the european court itself. a further response to those guidelines on the other hand may be, and has been, that they are too "nationalistic",16 that is to say that too much discretion is given to national courts to decide on eec questions themselves. denning was, for example, anxious that reference to the european court should not be made unnecessarily, because of the time to get a ruling and the need not to overload the european court, factors specifically mentioned in bulmer v. bollinger and also in the earlier general article in the times. while this might be said to reflect an unduly conservative attitude, it has practical merit, borne out by the experience of the european court which now takes even longer than when denning wrote to 12. r. v. phamlaceulical society 0/ creal brilai,l, ex parle the association 0/ phanllaceutical importers [198713 c.m.l.r. 951, at p.970. 13. see, e.g., vaughan (ed.), law o/the europeall communities, vol. i, 1.23,3.80; bebr, developmellt 0/ judicial control o/ihe europeall communilies, p.377; lasok and bridge, law and blstitutions 0/ the european communities 4th ed., p.378; collins, european community law ill the uliiled killgdom 3rd ed., p.134; bridge, "community law and english courts and tribunals; general principles and preliminary rulings", 1 european law review (1975) 13; gormley, "the application of community law in the united kingdom 1976-1985",23 common markel lalp review (1986) 287, at p.289; brown and jacobs, the court 0/ justice 0/ the european comlllullities 2nd ed., at p.170, and mitchell and freeman there cited; dagtoglou, "the english judges and european community law", [1978] g.l.]. 76; forman and stevens, "the attitude of british courts to community law the first three years", 13 commoli markel law review (1976) 388, at p.406; see also encyclopaedia 0/ european community law, vol. b ii, under article 177; ed. comment, 1974 comnlollmarket law review 349. but, as parker j. pointed out in lord bethel v. sabena [1983] 3 c.m.l.r. 1, at p.4, they are only guidelines see also vaughan (ibid.) and collins, european law ill the u.k, p.138. brown and jacobs say that the guidelines have no legal authority but have had an influence in practice, "emanating from so eminent a source". 14. [1974] 2 all e.r. 1241; stamp l.j. wholly agreed with stephenson's judgment. 15. see, e.g., bebr, development ofjudicial collirolof the european commllllilies, p.377; arnull, "article 177 and the retreat from van duyn", 8 european law review 365, at p.368 and if. vaughan i, 1, 23. 16. usher, in vaughan (ed.), law oflhe european commullilies, 3.80; see also freeman, "references to the european court of justice under article 177", [1975] g.l.p. 176; forman and stevens, "the attitude of british courts to community law", at p.407; dagtog[ou, "the english judges and european community law", at p.89. 4 lord denning and eec law hand down rulings, about fifteen months, and has to handle even more preliminary rulings. 17 an important issue, however, is that of aae clair, much beloved of academics. denning arguably gave too much scope to this doctrine, possibly out of a general desire not to overload the european court, and send only cases "worthy of its mettle",]8 but also possibly because of symptomatic over confidence as to the ease with which the "new law" could be applied by english judges.19 denning accepted the principles of the "previous ruling" and of acte clair, the latter being controversial: "in some cases ... it may be found that the same point or substantially the same point has already been decided by the european court in a previous case. in that event it is not necessary for the english court to decide it. it can follow the previous decision without troubling the european court ... in other cases the english court may consider the point is reasonably clear and free from doubt. in that event there is no need to interpret the treaty but only to apply it, and that is the task of the english court.,,20 these remarks have of course been overtaken by the limited approval of the doctrine of acte clair in the european court judgment in g./.l.f.i. t.. it recognised that "the correct application of community law may be so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved." but it qualified this by saying that before the court could come to such a conclusion it "must be convinced that the matter is equally obvious to the courts of the other member states and to the court of justice." and it further pointed out difficulties involved in the interpretation of eec law, such as the different language versions of community legislation, which are all equally authentic.21 17. see h.l. 20, 1987-88, a european court of fitstilistance, p.34; this is an increase from 1984 and 1985 see the synopsis of the work of the court ofjustice of the european commlwities, luxembourg, 1986, p.10. in 1972 there were 40 references, in 1985, 139, and in 1987 144 requests h.l. 20, 1987-88, supra, at p.32; proceedings of the court of justice of the european commutlities, no. 1/88. it is true, as forman and stevens point out ("the attitude of british courts to community law", p.407) that it was no longer true as denning had stated that the court could not be split up into divisions, but the recomposition of the court into chambers came about because of the growth in the number of references: see the court of justice of the european communities (office for official publications, luxembourg, 1975), at p.14. 18. see the times, 2 january 1973. 19. see lasok and bridge, supra n.i, p.378. 20. [1974] 2 all e.r., at p.1235. 21. [1982] e.er. 3415, at p.3430. 5 the denning lawjournal denning's unqualified adoption of the acte clair doctrine also clashes with the cautious approach of the house of lords in garland, though that also takes in the "previous ruling" guideline, and indeed may be more relevant to it, where lord diplock noted that there was a "question" to justify reference to the european court since "there was not ... so considerable and consistent a line of case law of the european court on the interpretation and direct applicability of art. 119 as would make the answer too obvious and inevitable to be capable of giving rise to what could properly be regarded as 'a question' within the meaning of art. 177.,,22 lord denning's apparent encouragement of the adoption of the acte clair doctrine by national courts on a widespread basis is surely open to reasonable criticism, in allowing the ill considered unilateral interpretation ofeec law. some balance had to be created between on the one hand preventing unnecessary reference and encouraging a belief that eec law could be understood and was not wholly alien, and, on the other hand, misconstruing eec law. an impression that denning was "in conflict" with the house of lords cannot be maintained on the basis of two or three cases, especially as lord diplock himself described the doctrine of acte clair as "common sense",23 but perhaps denning was over confident initially on the possibilities of misconstruction. 24 erroneous assumptions can easily be made, as was indeed illustrated, ironically, by denning's views in the well known case of schorsch meie~5 coupled with the house of lords' reaction in miliangos.26 the schorsch meier case has been taken to illustrate a degree of contentiousness in denning's guidelines, in emphasising the role of a national court in interpreting eec law for itself.27 lord diplock was particularly interested, on the other hand, in expressing caution on a matter being "clear", especially where judicial minds differ, as in henn and darb/8 and in the gist brocades cases,29 though a disagreement as to whether the law was clear or not, and whether a "comparatively elaborate" finding of acte clair was self-contradictory, 22. [198212 all e.r. 402, at p.415. 23. "the common market and the common law", 6 law teacher (\972), p.14. 24. a contrast on initial expectations of judges such as denning and misconstruction is made by lasok and bridge, law alld illslilulions ojlhe european comll/lmilies, pp.378-379. 25. [1975j 1 all e.r. 152, at p.157. 26. [i975j 3 all e.r. 801, at pp.810-811, 820, 838; "i entertain the strongest reservations concerning the use made by the court of appeal of art. 106 in the present context ... any other court in which such issues may arise would be well advised to refer them to the european court for clarification"(wilberforce). see usher, european courl practice, 1.69; freeman, "references to the european court under article 177", 28 c.l.p. (1975) 176, at p.193; see, however, denning, the discipline oj law, p.307. 27. vaughan (ed.), law ojthe european commullities, 3.80; see also lasok and bridge, pp.379-80; if. bebr, developmetll of judicia! colllro!, p.378. 28. [1980j 2 all e.r. 166, at p.l97. 29. r. v. comptroller patenls, ex p. gisl brocades [1986] 1 w.l.r. 51, at p.67. 6 lord denning and eec law became evident in the house of lords in re sandhu.3o a realisation of the limits of aae clair has now become evident in the court of appeal too. in r. v.thomson3l bridge lj expressly cited the warning of advocate general warner that national courts should exercise great caution before considering that the answer to a community law question admits of no possible doubt. caution on eec law was also stated in a way relevant to all questions of interpretation of the treaty of rome by bingham j in customs and excise commissioners v. samex: "sitting as a judge in a national court, asked to decide questions of community law, i am very conscious of the advantages enjoyed by the court of justice." he drew attention to matters such as the comparison of different texts, detailed knowledge of the treaties and subordinate legislation made under them, and a view of what the orderly development of the communities requires, where the court of justice is much better placed than a national court.32 he also stated in the bulk oil case, a week later, that "the cases show that, even where the english judges have been confident that a point of community law should be decided in one way, the court of justice of the european communities has not infrequently decided it in the other.,,33 these remarks, in commissioners of customs and excise v. sam ex, and bulk oil, were referred to and approved implicitly by the court of appeal in the bulk oil case,34and those in commissioners of customs andexcisev. samexwere described as "of great relevance" by kerr lj in the context of the free movement of pharmaceutical products.35in the polydor case,36moreover, according to kerr lj, "ormrod and templeman ljj expressed strong views in this court about the apparently clearly correct answer to a question of community law which had been raised before them. but they nevertheless referred the case to the court ofjustice, and we were told that the ultimate decision was in fact the other way.,,37again, kerr lj, with the concurrence of his colleagues in the court of appeal, 30. the times, 10 may 1985, available on lexis. lord fraser found that lord templeman's comparatively elaborate analysis indicated that it was not, as lord templeman suggested, acle clair. lord fraser was supported by lord brandon but lord bridge expressly disagreed on this point. 31. [1980] 2 all e.r. 102, at p.l05. 32. [1983] 1 all e.r. 1042, at pp.1055-56. 33. cited by ackner lj [1984] 1 all e.r., at p.391. 34. bulk oiia.g. v. sun inlemational ltd. [198411 all e.r. 386, at p.391. 35. r. v. pharmaceutical society oj great britain, ex parte the association oj phannaceuticalimporters [1987] 3 c.m.l.r. 951, at p.970. 36. [1980] 2 c.m.l.r. 413. 37. per kerr lj, mpra n.35, at p.971. 7 the denning law journal emphasised that u.k. courts should "hesitate long" and exercise "great caution" before reaching a conclusion that something is acte clair.38 these remarks, that national courts should be careful not to assume too readily that they themselves should deal with the matter, must be especially true if they refuse leave to appeal. this happened in the magna:vision case,39 where the divisional court stated that the matter before them was clear, though it involved the interpretation of difficult judgments of the european court itself, and though the divisional court considered that one judgment was out of line with the others and subsequently refused leave to appeal.40 the guidelines in bulmer on the exercise of discretion to refer necessary questions are relevant to courts not bound to refer such questions. under article 177 of the treaty of rome courts in general may refer questions of interpretation to the european court, but a court must so refer under article 177(3) if "there is no judicial remedy under national law" against its decisions. this obligation was also covered by lord denning: "short of the house of lords, no other english court is bound to refer a question ... ,,4] that the issue as to which court is bound could be argued about was indicated in the same case, however, where stephenson l] expressed doubt on the view that the house of lords is the only court against whose decisions there is no judicial remedy,42 while writers such as collins have opined that denning's view was "plainly wrong",43 as did campbell.44 there are in fact other more recent cases which indicate that the court of appeal is not a 'final court', so that denning may have been right. pure has l], citing the bulmer 38. ibid., at pp.970-71; see also macpherson] in r. v. h. m. treasury, ex parte daia' mail and gmeral trost p.l.c., [19871 2 c.m.l.r. 1, cited by kerr l], and r. v. dearl(jl)e;r. v. druker, the times, 28 january 1988. 39. s. a. magnavision ny. v. general optical council (no.2) [1987] 2 c.m.l.r. 262. 40. see analogously, the bomore case [1986] 1 c.m.l.r. 228, at p.241, though it involved a decision that the question was already covered by the european court's jurisprudence rather than acte clair. 41. [1974] 2 all e.r. 1226, at p.1233; see also the times, 2 january 1973. 42. at p.1241; stamp l] agreed. 43. european law in the united kingdom 3rd ed., p.114, writing of course before pic/mone or the phannaceutical society case, referred to in the text: he also cites 8th general report on the activities of the european communities, which stated that dcnning's view here "must be treated with reservation "; see also buckley lj hagm v. fratelli [1980] 3 c.m.l.r. 253, at p.255 indicating that the house of lords and also the court of appea] would be bound to refer if leave to appeal were not obtainable (which is described by schermers waelbroeck, judicial protection in the europeau communities 4th ed., (k]uwer) para.715. as the better solution, but as raising procedural difficulties by lasok and bridge, supra n.l, at p.369 n.17), and s. a. magnavision n. v. v. general council (no.2) [1987] 2 c.m.l.r. 262, at pp.265-66, where watkins lj considered that if the divisional court refuses to certifythat there is a point oflaw for consideration by the house of lords the divisional court may be or was "in a sense" a court of final decision though no reference to the european court was made by watkins l] and macpherson] because the matter was considered clear, and because no question was pending or preliminary before the divisional court. 44. common market law supplement 1975, p.382: "it is respectfully submitted that his view is clearly incorrect" . 8 lord denning and eec law guidelines, indicated in pickstone v. freemans plc45 that the court of appeal was not a "final court" under article 177, and kerr lj with the concurrence of his colleagues said in r. v. pharmaceutical society of great britain, ex parte theassociation of pharmaceutical importers that the court of appeal was not a court from which there is no remedy, since there was a possibility of an appeal.4b moreover, the question must be asked whether the court of appeal is bound to refer if it has already given judgment, and leave to appeal is refused.47 to judge by the magnavision case the question would no longer be "preliminary", and thus the court of appeal would not be bound to refer. possibly if the court of appeal refuses leave to appeal it should be regarded as a court from which there is no remedy; this is only consistent with justice in the individual case, for which denning supposedly cared especially, and with the purpose of article 17 and the case law of the european court, though there are arguments for an emphasis on 'higher' courts.48 it is also arguable that in cases of urgency the court of appeal should be regarded as the final court in england, and the view that the house of lords alone is bound seems inconsistent with denning's own consideration of the time and expense involved in getting a ruling. denning's view had the virtue of clarity, which was also the approach subsequently adopted in the 1968 convention on jurisdiction and the enforcement of judgments, and 1971 protocol. it nominated the courts bound to refer questions for a preliminary ruling on interpretation of the convention and protocol to the ecj, and concentrates on the house of lords.49 the matter of the 'final court' under article 177 is not one in any case on which different views are not possible, and criticism of denning may be over enthusiastic. sir gordon slynn, an advocate general, said that it was "clearly" not true that a court "of last resort" means the supreme court, in the u.k. the house of lords, and that a court from which there is no judicial remedy may be relatively low in the hierarchy, 50 but judge pescatore, a judge of particular authority on the eec, stated that he preferred the view that a court at the top of the hierarchy is a court from which there is no remedy and that, in any case, the question whether that 45. [1987] 3 all e.r. 756, at pp.770, 776; oliver lj found it unnecessary to decide if the decision before him in the court of appeal was one from which there is no judicial remedy, so that a reference would be obligatory, in british leyland motor corporation v.annstrong patents [1984] 3 c.m.l.r. 102, at p.l32 which implies that that decision was arguable. 46. [1987] 3 c.m.l.r. 951, at p.969; the assumption in the bomore case, [1986] 1 c.m.l.r. 228, at p.241, appears also to have been that the house of lords was bound to appeal under the last paragraph of article 177, and the court of appeal a discretion to do so. 47. see usher, european court practice, 1.72; collins, european commlll/it)' law in the united killgdom, p.l13; lasok and bridge, law and institutions of the european community, p.376. 48. see brown and jacobs, the court of justice of the european communities, pp.16 7-68; if. campbell qc, common market law supplement (1975), p.383, and, on the case law of the court of justice, schermers waelbroeck,judicial protection 4th ed., para. 710. 49. for schermers wae1broeck,judicial protection in the european communities 4th ed. para. 711, the convention generally follows the "abstract theory", i.e. that concentrating on the highest courts. 50. "the use of article 177 of the eec treaty", the fifth lord fletcher lecture 1983, the lord fletcher lectures 1983-1984 1, at p.9. 9 the denning law journal court or a court from which there is no appeal in a particular instance is one from which there is no remedy "could give rise to endless discussion."sl that does suggest that criticism of denning's view on this issue can get out of proportion. there are of course good reasons for and against both views. 52 considering the guidelines as a whole, and the question whether the house of lords alone is bound to refer, it is clear that they are, or have been, open to criticism. but it would be wrong to over-react. lord denning was issuing clear and relatively short guidelines, not writing a statute, and one would ell.']jectthem to be qualified later. in some respects they echo the previous remarks of lord diplock in the need to have regard to time and expense, the need not to overload the european court, and the acceptance of acte clair as "common sense", despite later qualification. 53 lord mackenzie stuart, the united kingdom judge on the european court since our accession and a judge of vast experience, commented: "it is instructive to look back at some of the specific anxieties expressed at the beginning of british membership. for example, when should a judge use his power to refer a case to us? should the power be exercised only at the level of the court of appeal? for all the academic ink spent in comment on how lord denning's guidelines in bulmer v. bollinger [1974] ch. 401 should be given effect to, i think the fears have proved groundless. the british judiciary, with its pragmatic good sense, have referred cases to luxembourg when they thought it appropriate having regard to the particular problems raised by the case before them and, perhaps more importantly, have refused to refer where domestic law has proved a perfectly adequate solution.,,54 that comment, plus that of kerr lj, puts criticism of the guidelines in some perspective. the word "pragmatic" is interesting; perhaps a balance must be struck between freedom to refer and an academic insistence on reference wherever eec law is alleged to be relevant, the resolution of which balance in particular cases will be open to criticism. as walton j once pointed out, the invocation of article 177 requiring, apparently, the court not to enquire into the validity of alleged defences under eec law, should be treated with circumspection. it should not have an effect even greater than the murmuring of 51. court of justice of the europeall communities: referencesfor preliminary rulings under article j 77 of the eec treaty alld cooperation betweell the court and na/ioliai courts, office for official publications of the european communities (1986), 16. 52. see pescatore, ibid.; bebr, supra n.13, at p.379 el seq.; collins, european commlllli<v law in the u'li/ed kingdom, p.112j schermers waelbroeck, judicial pro/ec/ioan in the european communities 4th ed., paras. 709-710, suggesting that the obiter in the costa case was not necessarily meant to settle this matter, though preferring the view that the subsequent case law of the european court confirms the "concrete theory", which would cover more than the house of lords. 53. "the common market and the common law", 6 law teacher (1972), pp.13-14. in one respect lord diplock was more restrictive, in suggesting that courts below the court of appeal normally should not make references; for criticism see bebr, developmell/ of judicial coillrol, p.377. 54. "the united kingdom and community law the first decade", pa3j see also collins, supra n.13, at p.140, pointing out that english courts have not hesitated from seeking guidance from the european court. lord mackenzie stuart has been succeeded by sir gordon slynn. 10 lord denning and eee law the magic word "basingstoke" though unfortunately unwillingness to refer questions to the european court in that and other similar cases on intellectual property has been open to criticism. 55 the sovereignty of the u.k. lord denning was apparently more alive to the supremacy of eec law than other senior judges, at least on the basis of written judgments. of course, before u.k. entry to the eec the question of sovereignty had arisen in blackbum v.att.-gell ..56 lord denning's view there indicated that he was aware that there soon could be a successful challenge to the dogmatic and traditional view of sovereignty of dicey: "we have all been brought up to believe that, in legal theory, one parliament cannot bind another and that no act is irreversible. but legal theory does not always march alongside political reality . . . legal theory must give way to practical politics ... what are the realities here? if ... parliament enacts provisions to implement [the treaty], i do not envisage that parliament would afterwards go back on it ... if parliament should do so, then i say we will consider that event when it happens. we will then say whether parliament can lawfully do it or not." as forman and stevens suggest, denning did not perhaps need to address himself to the broad question of sovereignty, as well as that of review of the crown's treaty making power, but it had been raised, and all three judges considered the question; in doing so he was making one of the few general judicial statements on the subject and was here, as forman and stevens also point out, addressing one of the most entrenched doctrines in english law.57 it is both a conservative and an open minded statement. it is conservative because, despite the statement of a preparedness to rethink the theory of parliamentary sovereignty denning was apparently still beginning from a starting point of traditional terms, of one parliament not being able to bind another. that indicates that he did not yet accept fully the views of the european court on supremacy, by which this country is bound, as a pro-european lawyer would do. it was open minded in being prepared to address political realities, and to rethink theory. 58 despite his statement that he would consider the problem of withdrawal from the eec when it happened, he did address that question later, in macarthys, to an extent that he has 55. british leyland motor corporatiol/ v. t.i. silencers ltd. [1980] 1 e.m.l.r. 598, at p.610 and see also sir robert megarry in l.e.l. v. berk phanllaceutical ltd. 1198112 e.m.l.r. 91, at p.98; see, however, british leyland v. t.i. sile1lcersltd. [1980] 2 e.m.l.r., at p.332, [19811 2 e.m.l.r. 75, and arnull, supra n.15, at pp. 371-77. 56. [1971] 2 all e.r. 1380, at pp.1382-83; it was cited in the house of lords when debating the european communities bill 1972 by lords beswick, hailsham and shackleton: h.l. deb. 7 august 1972, cols. 902, 912; 8 august col. 1048; i-i.e. deb. 7 march 1972, col. 1332. 57. supra n.13, at p.391. 58. the other two judges also made non-committal statements on the subject; denning's is the statement which made an impact. 11 the denning law journal been said to have" escaped from the apparent shackles of orthodox theory". 59 the contrast between traditional theory and reality was echoed later, in considering the impact of the single european act. again he contrasted traditional theory and political reality, and although he did not in terms rethink general theory on the basis of the new political realities, these were in his mind as he declared that parliamentary sovereignty had ended. an overview of denning's views on parliamentary sovereignty and eec supremacy suggests that, though there was some inconsistency, he did particularly accept eec supremacy, as long as there was no express statutory repudiation. this will be considered below. a limited recognition of the supremacy of eec law underlay the times article, where he was clearly prepared to say in general that if there was a conflict between a previous act and the treaty the treaty will "prevail".60 this however does not raise the question of sovereignty, since he refers to a previous act of parliament and might even be taken to imply that eec law does not prevail in the case of a later act of parliament. the question of the extent to which eec supremacy is given effect may arise where a post-1972 statute is enacted in terms different from or inconsistent with prior directly applicable eec law, and hence inconsistently with the 1972 act. on standard views of parliamentary sovereignty the effect given to eec law by the european communities act 1972 may be limited by a subsequent statute; no parliament, including the 1972 one, can limit a subsequent parliament. the situation is complicated by sections 2(4) and 3 of the european communities act 1972. section 2(4) of the european communities act 1972 says to paraphrase it that present and future legislation is to be construed and have effect subject to section 2(1), allowing eec law which is intended to be directly enforceable to be so; section 3 refers to judgments of the european communities act 1972, which brings in the doctrine of the supremacy of eec law stated by the european court. both sections of course are themselves open to express or implied repeal. the question is, if there is an inconsistency between eec law and a later u.k. statute, must the former eec law prevail, or should the later inconsistent statute be given effect to, or can the two be reconciled? given the impact of section 2(4) the question is, how far can reconciliation go? this problem was mentioned by lord diplock in carland. in that case he said that it was not then an appropriate occasion to consider whether, in the absence of an express statement in a statute of an intention to be in breach ofeec law, it would be justifiable to construe a statute inconsistently with eec law "however wide a departure from the prima facie meaning of the language of the provision might be needed in order to achieve 59. allan, "parliamentary sovereignty: lord denning's dexterous revolution", 31 oxford journal of legal studies (1983) 22, at p.30, considering the 'self embracing' and 'continuing' schools of theory; if. macarthys [1979] 3 all e.r. 325. 60. the times, 2 january 1973. 12 lord denning and eec law consistency".61 the problem of applying section 2(4) was also clear in pickstone,62 in the court of appeal, where nicholls lj noted, citing garland, that there was nothing in the equal pay act 1970 "which expressly or impliedly negatives, or purports to negative, any such community rights." of course, it can be argued that there can be no implied limitation or repeal of the 1972 act unless there is not only an inconsistency between a later statute and eec law but also between stated provisions in the statute and statd provisions of the european communities act 1972,63 but this seems to be an unduly narrow approach which does not refer to the general and basic question of the intention of parliament in the later statute,64 assuming that the draftsman was aware of eec law and the 1972 act. 65 since the effect of eec law depends on that act, the real question must be whether parliament intends to limit the effect ofeec law, and by implication, the effect of the 1972 act. the main question, however, is the relationship of eec law and a statute subsequent to it, as addressed in garland.66 in the main denning expressed a definite emphasis on eec supremacy, bringing into clear perspective the existence of that doctrine. in shields v. e. coomes (holdings) ltd.67 he devoted a large part of his judgment to explaining the impact of eec law including its supremacy. he remarked that if there were any inconsistency between eec law and a statute then community law "prevails",68 and that the direct applicability and supremacy of eec law showed that "the flowing tide of community law is coming in fast ... it has submerged the surrounding land."69 here denning corrected the misleading impression giveri by himself (perhaps ex tempore) in felixstowe dock and railway co and european ferries v. british railways board, where he had said that once the relevant bill became a statute that would dispose of the argument about an abuse of a dominant position under article 86 of the eec treaty: "these courts will then have to abide by the 61.[1982] 2 all e.r. 402, at p.415; see also hood phillips, "a garland for their lords", (1982) 98 l.qr. 524 and allan, "parliamentary sovereignty and the eec", [1982] public law 562. 62. [1987] 3 all e.r. 756, at pp.765-66, 775-76; at the time of writing the house of lords appeal had not been heard. 63. see bridge, "abstract law and political reality in the post european accession british constitution", [1987] dennirzg l.}., 23 at p.36, citing ellis, "supremacy of parliament and european law", 96 l.qr. 511, at p.513; if. usher, in vaughan (cd.), law ojlhe european commllllilies, vol. i, 3.14. 64. see on implied repeal, halsbury 4th ed. vol. 44, pp.962, 966; bennion, slalulory bilerprelatiorl, section 180; maxwell, interpretation oj stalutes 12th ed., (1969), p.187; craies, statute law 7th ed. (1971), p.366. 65. diplock and denning seemed to assume it is knowledge. 66. [1982[ 2 all e.r., at p.415. 67. [1979] 1 all e.r. 456. 68. at p.46. 69. [1979] 1 all e.r. 456, at pp.461-62; if. macart/!ys v. smilh [1981] 1 all e.r. 111, at p.120 ("community law is now part of our law; and whenever there is any inconsistency community law has priority"); and denning in garden collagefoods v. m.m.b. [1982] 3 all e.r. 292, at p.294. too much should not be read into phrases such as "equal in force to any statute", as in application des ga::.v. falks vcrlilas [1974] 3 all e.r. 51, at p.56 but see dagtoglou, supra n.l3, at p.80. 13 the denning law journal statute without regard to the treaty at all."/o denning probably did not think through this throwaway statement sufficiently he later was more careful in his remarks. where there is an express repudiation of eec law denning's attitude was different. in macarthys v. smith he returned to the issue of supremacy: "i have assumed that parliament, whenever it passes legislation, intends to fulfil its obligations under the treaty. if the time should come when our parliament deliberately passes an act with the intention of repudiating the treaty or any provision in it or intentionally of acting inconsistently with it and says so in express terms then i should have thought that it would be the duty of our courts to follow the statute ... unless there is such an intentional and express repudiation of the treaty, it is our duty to give priority to the treaty.,,7\ thus, when parliament expressly says that it repudiates, by statute, eec law, or expressly says that it intends to act inconsistently with it, effect must be given to that repudiation, but that unless that happens we must go by eec law. the phrase "says so in express terms" is not entirely clear; it may mean that the terms of the statute evince such a deliberate intention 72 or, more probably, that an express or formal statement is made as to intention. 73 either interpretation may to some extent be supported by reference to the first lord fletcher lecture 1979,74where denning stated that he had said in a recent case (a1.acarthys) that "our own parliament in the last resort, if it so intends, can over-ride community law. it can, for instance, say that our courts are not to follow community law on any particular topics. it could in the last resort withdraw." saying in a statute that our courts are not to follow community law on a topic would seem sufficiently, in denning's terms in macarthys, to "say so" in express terms. if denning simply meant that a deliberate intention be clear, that the statement mentioned is a "for instance" and the question is if parliament "so 70. [19761 2 c.m.lr. 655, at pp. 664-65. 71. [1979] 3 all e.r. 325, at p.329. 72. see collins, european community law in the united kingdom, p.29; if. bridge, op.cit. supra n.63, 1987 denning l.j. 23, at pp.35-36; lasok and bridge, law and institutions of the european commllllities 4th ed., p.375. 73. see allan, 31 oxfordjournal of legal 5111dies(1983) 22, at pp.25-27, who takes it that denning's requirement of express words mirrors section 2 of the canadian bill of rights 1960. "every law of canada shall, unless it is expressly declared by an act of the parliament of canada that it shall operate notwithstanding the canadian bill of rights, be so construed and applied as not to abrogate, abridge or infringe, or to authorize the abrogation, abridgement or infringement of any of the rights or freedoms herein recognized and declared", and (p.31) that it requires that parliament state expressly that community law is not to prevail; wade and phillips, cottstitutional and administrative law, p.138, use the words "expressly declare that it prevailed". lord fraser, "the impact ofcomnlunity law on scots law", [1987] journal of the law society of scotland, p.91, cites macarthys in connection with an act "clearly stating that it superseded some provision of community legislation"; if. bridge, lasok and bridge, supra n.72. 74. at p.8. 14 lord denning and eec law intends", he would be, it is submitted, in conformity with general philosophy on implied repeal.75 however in the lord fletcher lecture he seems to envisage a specific reference to community law,76 not just a repugnancy, where eec law and the statute cannot stand together. the significance of denning's statement in macarthys, according to allan, is that section 2(4) of the 1972 act has been to some extent entrenched, that a requirement of form (of express wording) has been placed on any statute designed to override community law, and the court has departed from the ordinary rule on implied repeal. 77 as it stands, denning's statement places more emphasis on express terms than did lord diplock in garland. lord diplock anticipated when debating the european communities bill that conflicts between statutes and eec law would not be deliberate, but might arise by accident or oversight, that there were a great many cases where statutes were ambiguous; but that if parliament decided (unambiguously) to amend or repeal directly applicable eec law then the courts would be bound to give effect to the subsequent statute; he seems to have contemplated express repeal or amendment, rather than the academic possibility of implied repeal as such.78 but he also suggested extra judicially, before the enactment of section 2(4), that, generally, the courts would give effect to a statute where there was a conflict between a subsequent statute and eec law.79 the diplock statement in garland, and that of nicholls lj in pickstone do also leave open the possibility of implied repeal of eec law without an express statement.80 of course in macarthys denning may simply have been taking the clear case, particularly because he was concerned with the extreme possibility of withdrawal from the u.k., even ifhe meant that an express statement be made,8] and it seems clear from the lord fletcher lecture that he was focussing on the clear, extreme, cases of 'the last resort'. the apparent requirement of an express statement appears to echo clause 3 of lord wade's bill of 1977 (not long before macartky's), a bill to give effect to the european convention on human rights, which stated that in the case of a conflict between a subsequent statute and the european convention, the convention should prevail unless the statute "explicitly" said otherwise.82 it also echoes the 75. for rules on implied repeal see n.m supra. 76. cf allan, ~upra n.73, who interpreted macar/~ys in this way. 77. ibid., at pp.2s, 32. as bridge puts it, slipra n.72, at p.24, "the eponym who graces this joumal has been credited with accomplishing a 'dexterous revolution!'" 7m. h.l. deb, 8 august 1972, cols.l028-1029, and if. lord hailsham at col. los i; here diplock made the interesting statement that "it is difficult to think of any section in an act of parliament in which one cannot say there is one meaning or another." presumably he thought such an approach would normally provide the solution to conflicts. diplock's statement that "the only problem so long as the community survives" would in practice arise where there is an oversight or accident was echoed by denning in macar/hys [1979] 3 all e.r. 325, at p.329. 79. "the common market and the common law", the lam teacher (1972), p.8. 80. see also bridge, op.ci/. slipra n.63, p.38. 81. see also the lord fletcher lecture, and wha/ nex/ ill /he lalv, at p.300. 82. see h.l. 176, 1977-78, report of the select committee on a bill of rights, annex.; ~rallan, slipra n.73. the committee (p.36) wished to amend it to read as regards later acts "unless it provides otherwise or does not admit of any construction compatible with this act", which is wider. 15 the denning law journal statement of sir geoffrey howe, who spoke for the government as solicitorgeneral in the second reading debates on the 1972 act, that he did not go so far as lord diplock's statement (extra-judicially) that any later statutes plainly in conflict with our obligations under the treaties would be given effect to, but endorsed the proposition "that a subsequent united kingdom statute even if not designed to pull us out of the communities which began with the phrase 'notwithstanding the provisions of clause 2 ... of the european communities bill, black shall be white' would mean that the courts of this country would give effect to that limited proposition, certainly as the matter now stands"; of course he seems to be taking the clear case.83 it is again consistent with suggestions that statutes of constitutional importance are not necessarily subject to implied repeal to the same extent as ordinary statutes.84 any emphasis on the need for an express statement is practical because it becomes relatively clear when eec law is not to be given effect to, i.e. when there is an express, stated intention so to do within the statute.85 denning was later to complain that section 2(4) is obscure and unintelligible.86 denning's was in any case an early and clear statement of the position where there is a conflict between eec law and a statute, indicating that he was alive to that problem. it is interesting that the word "priority" is used by denning a word reflecting the question of supremacy which is implicit in section 3 of the 1972 act, rather than the straightforward one of construction as under the terms of section 2(4) of the 1972 act. lawton l] in the same case, preferred to emphasise the operation of the 1972 act, remarking, after citing sections 2(1) and 2(4) of that act, that there was nothing in the statute concerned the equal pay act 1970 as amended by the sex discrimination act 1975 to indicate an intention to amend or to limit the application of the european communities act 1972, "indicate" being less formal, apparently, than denning's words "says so in express terms".87 83. "the european communities act 1972", 49 ii/lernatiollal affairs (1973) i, at p.9, citing 838 h.c. deb. 13june 1972, col. 1320, where he said that "most people" agreed that a statute with a phrase as in the text would be given effect to; a proposed requirement that section 2(4) provide for parliament saying "notwithstanding our obligations the following shall take effect", or "unless the contrary appears", was rejected by howe as providing in advance for the breach of treaty obligations; see also viscount colville of culross, h.l. debates 8 august 1972, col. 1024. sir geoffrey howe considered the possibility also of an inadvertent conflict, when the courts would "try" to construe the statute in accordance with our international conventions: ibid., at col. 1321. viscount colville stated that the advice that had been given was that if there were unavoidable conflict the courts would have to give effect to the statute: h.l. deb. 8 august 1972, cols. 1024, 1027, 84. see halsbury 44, at p.966 (citing lord wilberforce in petitio" of earl of a,i/rim [1967] 1 a.c., at p.724, but also karapier v. wy'eshilla [1968] a.c. 717), and hailsham's evidence to the select committee on a bill of rights, h.l. 81, 1977-78, p.16, but see h.l. 176, 1977-78, p.22, n.1. 85. cf halsbury 44, at p.962, bennion, section 180 on implied repeal generally. 86. the salisbury review, april 1987, p.ll; see also h.l. deb. vol. 480, 1986, col. 1090. 87. [1979] 3 all e.r., at p.334. cf usher in vaugh~n, i, 3,14. 16 lord denning and eec law certainly denning's broad view was partially upheld in the judgment of lord diplock in garland.88 the implication from that judgment is at least that an express statement would justify construction inconsistently with eec law. lord denning's view has also received support, extra judicially, from lord fraser, who stated, citing macarthys and garland, that an express positive statement in a statute of an intention to overrule or depart from a piece of community legislation would be given effect to.89 denning's attitude to the passing of the european communities (amendment) bill, giving effect to the single european act, indicates a more traditional personal desire to defend the sovereignty of parliament, but also a realistic and perhaps radical recognition of the supremacy of eec law, which in the views of some may have been an over-reaction. in the house of lords he vigorously opposed the passing of the bill, declaring that it would "seriously erode" the sovereignty of the queen in parliament,90 ranging himself on the side of the "traditional constitutionalists" to ensure the supremacy ofpariiament.91 here he was rebuffed. as he himself remarked, the times' headline was "denning crushed on sovereignty".92 but he returned to the attack at the committee stage, putting down amendments so as to prevent a repeal or amendment of a statute by an eec directive, or by a decision of the european court, so that it would be public.93 he further went into print, in the salisbury review, and in the times. in the salisbury review94 he recognised initially the traditional sovereignty of the queen in parliament,95 but continued: "for nearly 300 years our constitutional law has been based on the fundamental principle that parliament was the supreme legislative authority in and for the united kingdom. it alone could make or unmake our laws, amend or alter them. that sovereignty has now been ended. its overthrow will be completed by parliament itself when it passes the european communities (amendment) bill ... so we have to reckon with a new constitutional principle. community law, as declared by the european court of justice, is superior over any act of our parliament which is inconsistent with it.,,96 88. [1982] 2 all e.r. 402, at p.415; see also hood phillips, "a garland for their lords", 98 l.qr .. (1982) 524, and allen, "parliamentary sovcreignty and the eec", [1982] pliblic lan> 562. 89. "the impact of community law on scots law", [i987]jollmal of/he lam socie()' ofsco/lalld 90, at pp.91-92. 90. h.l. deb. 1986, vol. 479, col. 1056. see also his account in nle salisljlii)' reviem, april 1987,8 at p.l2, and h.l. deb. vol. 480, cols. 1089-90. 91. see the salisbury reviclv, april 1987, p.12. 92. ibid., at p.12. 93. h.l. deb, 1986, vol. 480, col. 1090; if. the salisb1l1j'review, april 1987, p.12. 94. "the single european act", ibid., p.8. 95. ibid., at p.l1. 96. ibid., at pp.1l-12. 17 the denning law journal equally his article in the times, headed with the dramatic by-line "farewell to our sovereignty)! stressed in the same way that parliamentary sovereignty had ended.97 it must be said that denning's views seem to be dictated by his reaction to the single european act. that act made changes to the treaty of rome and was given effect to in the u.k. by the european communities (amendment) act, which he mentions: in his view the bill was not confined to economic matters but covered legal and political matters as well. his views were also influenced by considerations as to the role of the european court, which has declared the supremacy of community law.98 his reaction to the single european act itself was controversial. indeed attempts to reopen the question of sovereignty on the single european act were, generally, dismissed by bridge as misconceived.99 denning did accept and support the changes made once the european communities (amendment) bill became an act. i thus he wrote in his usual graphic style: "let us give the single european act our wholehearted support. long ago, when we entered the common market, i drew this picture: 'the treaty is like an incoming tide ... ' now i continue the imagery: look, there is a ship coming in with the tide. she is called european union. but she is in difficulty ... send out a good boat to help her. here is one. it is called the united kingdom. put good men aboard the european union.)!2 however, denning's later reaction to the eec commission's suit against the united kingdom on failure to implement an eec directive on v.a.t. contrast with those views on the loss of sovereignty. this suit concerned the zero-rating of items, which it was alleged was not proper under the directive. in an article in the times denning argued that: "the zero-rating case is of immense constitutional significance ... i am quite sure that, when we ~ntered the european community, no one ever thought that we were giving the european court of justice power to declare invalid our acts of parliament, especially those dealing with taxation, on which we have always felt most strongly ... the people of england ... will condemn the 97. the times, 3 november 1986, p.20. 98. see h.l. deb. vol. 479,1986,1056-59; the salisbury review, supra n.90, at pp.8, 10. denning also thought it possible that european courts of first instance would sit in england. 99. "abstract law and political reality in the post-european-accession british constitution", [1987] denning l.j., 23, at p.41. 1. he was reported as saying that "he had shed his wig and gown for a politican's robe"; the times, 4 november 1986. 2. the salisbury review, wpra n.90., at p.l3; see also the times, supra n.97. 18 lord denning and eec law commission for bringing those proceedings challenging the sovereignty of our parliament.,,3 the article is subject to some criticism, for example in the complaint that the u.k. parliament and not its government should have been sued, overlooking the fact that the commission sues member states, represented in this case by the government.4 the main point is, however, that denning was here, on a temporary issue, again prepared to defend the sovereignty of parliament. to sum up, denning's views on sovereignty are not entirely consistent. but they are indicative of a lawyer prepared to think for himself, and to address the issue of sovereignty squarely. for a lawyer brought up on dicey these views are radical, and his views after he retired from the bench especially in the salisbury review are both provocative and progressive. interpretation of the law in bulmer v. bollinger lord denning had some comments to make on the interpretation ofeec law. these comments were not revolutionary and have been duplicated since, but they remain an early clear statement of the need to interpret eec law in a different way: "it is apparent that in very many cases the english courts will interpret the treaty themselves. they will not refer the question to the european court at luxembourg. what then are the principles of interpretation to be applied? beyond doubt the english courts must follow the same principles as the european court ... they must follow the european pattern. no longer must they examine the words in meticulous detail ... they must look to the purpose or intent ... they must not confine themselves to the english text. they must consider, if need be, all the authentic texts ... if they find a gap, they must fill it as best they can."s over a page of the all england report is taken up with this advice. this was surely much needed, and because it was stated at such an early stage may well have been influential. it was perhaps made in response to a realisation of the difficulties which the profession faced in adjusting to the law. probably such advice was given with some pleasure by a judge noted for his preference for reasoning in any case by 3. the times, 22 july 1987; see also h.l. deb. 1986, vol. 480, col. 1090; 77lesalisblltj'review, sllpra n.91. 4. see letter to the times, 27 july 1987 by langdon davies for that, and other criticisms. he is correct in saying that the e.c.j. does not declare acts to be "invalid", but denning might say that that is the effect. see also letters in the times, 29 july 1987. 5. [1974] 2 all e.r. 1226, at pp.1236-37. cf application des gaz v. falks veritas [1974] 3 all e.r. 51, at pp.56-57; schorsch meier [1975] 1 all e.r. 152, at p.157; see also the discipline of lan) (1979), p.17. the appropriate principles of interpretation to interpret the eec treaty were also addressed by lord diploek in heml and darby [1980] 2 all e.r. 166, at p.196. 19 the denning lawjournal "principle".6 this is perhaps suggested by his judgment in james buchanan,1 where he related his participation in a discussion in luxembourg with members of the european court, and other colleagues of the member states. he articulated the "european method" on interpretation, the purposive approach, and urged its adoption on european matters, before continuing: "even in interpreting our own legislation, we should do well to throw aside our traditional approach and adopt a more liberal attitude."s it has rightly been said that viscount dilhorne's cool response to the suggestion that "gaps" in lcgislation could thus be filled, that our membership of the eec does not entail abandonment of traditional methods of interpretation, was unduly dismissive.9 at the same time there was perhaps insufficient stress by dcnning on the linguistic difficulties faced by an. english judge in interpretation, difficulties drawn attention to by lord mackenzie stuart, and by the european court in g./.l.f./. t., and by bingham j subsequently, 10 though he did refer to the other authentic texts in bulmer, and considered, but would not go by, the french text of a directive in phonogram v. lane. ii it is arguable of course that the differences in approach to interpretation of english law and eec law or international conventions are exaggerated.12 but the renton committee on the preparation of legislation expressly cited dcnning's remarks on interpretation in bulmer, having written that there are differences in drafting technique in england and europe, \3 and denning himself thought it particularly important to emphasise the attractiveness of the "european" method: 6. see also bridge, op. cit., n.i at p.i 7, on denning's creative outlook. 7. [1977] i all e.r., at pp.522-23. 8. he referred here in james buchanan to an old banle over interpretation, when advocacy of a 'purposive' approach to interpretation of statutes was condemned in the house of lords by lord simonds: see denning the disciplille of law, p.i 3; bridge, op. cit, 17. the response to lord denning's remarks from the house of lords in james buchanan was not enthusiastic: [19771 3 all e.r. 1053, at p.1056. see also the discipline of law, p.22. 9. lasok, in vaughan (ed.), law of the european commlmities, vol. i, 1.47. 10. g./.l.f.l. t. [1982] e.c.r., at p.3430; bingham j in commissioners of customs and excise v. samex [1983] i all e.r. 1042, at pp.1055-56.; mackenzie stuart, the european communities alld the rule of law (1977), p.n. 11. [1981] 3 aiie.r. 182,atp.186. 12. see lord wilberforce in james buchanan v. babco [1977] 3 all e.r., at p.1053: "the assumed and often repeated generalisation that english methods are narrow, technical, and literal, whereas continental methods are broad, generous and sensible, seems to me insecure at least as regards interpretation of international conventions"; see also collins, european community law ill the united kingdom, p.96; dagtoglou, "the english judges and european community law", at pp.77-78; and pescatore, court of justice of the european communities: information for lawyers, office for official publications of the european communities (1984), p.29: "the court's methods of interpretration ... do not differ in principle from methods applied by any court ... but their liberal inspiration is worth recording. the court operates in the framework of a completely new legal system which still presents gaps and discontinuities in many respects. under these circumstances it has to make constructive use of the methods of legal interpretation ... " cf viscount dilhorne injames buchanall, at p.i056; vaughan (ed.), law of the european communities, vol. i, 1.47; lasok and bridge, law and ilistitutiolts of the european communities, p.87. 13. cmnd 6053, 1975, pp.5l, 146; denning was happy to cite this report in james buchallan. 20 lord denning and eec law "i would now pass on to our most important task. it is the interpretation of statutes and treaties. if you read this treaty, if you read the regulations and directives under it, they are all part of our law. how different they are from ours ... the european court ... have what they call a method of interpretation called the 'teleological' or 'schematic' method ... it is very different altogether from our english method of interpretation. i hope that the european method of interpretation will pervade ours ... but i am a lone voice in this." 14 denning's judgments also contain advice as to the substantive content and impact of eec law, again going beyond perhaps what was strictly necessary for the decision of the case before him. thus in re westinghouse elearic corporation uranium contraa litigation mdl docket no. 235 (no.2), he drew attention, in what he called a "digression", to the eec commission's powers of investigation and to the contrast with traditional english law: "in making an investigation, the european commission is armed with great powers given by eec council regulation 17/62, arts. 11 to 20. this will come as a surprise to those of us who have been brought up in the common law.,,15 about a page of the law report is taken up with an exposition of the powers of the commission. denning also spent some time in shields v. coomesl6 explaining the doctrine of direct applicability, one of the two "twin pillars", he said, of eec law, in an apparent attempt to enunciate a general perspective of the new legal order. here again about a page and a half is taken up with explaining the new legal order. however denning was open to criticism in not making it sufficiently clear early on that not all of eec law is directly applicable, and in broad brush statements that the treaty is "part of our law", apparently giving the impression that all of the treaty's provisions are, whereas he may have meant that no further parliamentary intervention was required for them to have effect. in 1973 he had said in the timesl7 that "there are several international conventions which have been incorporated into our law by act of parliament and our courts have not the slightest reluctance in applying them. they do so because parliament has so enacted. they will do the same with the treaty of rome and the regulations. so, far from rejecting it, they will incorporate it into the body of our law." in an early case, application des gaz v. palks veritas,18 he said: 14. 'the incoming tide', op.cit., at p.12. 15. [1977] 3 all e.r. 717, at p.n2. 16. [1979] 1 all e.r. 456, at p.461. 17. 2 january 1973. 18. [1974] 3 all e.r. 51, at pp.55-56. 21 the denning law journal " ... the european communities act 1972 ... said that the treaty of rome was to be given legal effect in the united kingdom ... the treaty is part of our law. it is equal in force to any statute. it must be applied by our courts." that broad emphasis on the effect of the treaty of rome is misleading, in the sense that it could be inferred that all of the treaty has similar effect. that inference could be corrected, since he then considered separately the question of a remedy, with the implication that the effect in a particular case was a distinct question, and went on to point out that, according to the jurisprudence of the european court, article 85 creates rights which can be enforced directly.19 in the trendtex case denning again referred to the treaty as simply "part of the law of england".2o this may have been intended to communicate the legal relevance of the treaty in an english court or its potential relevance in contrast to the normal rule as to treaties. but to say that the "treaty is part of our law", unqualified, may suggest that all its provisions are applicable directly, and the strong word "heresy" has been levelled at the suggestion that all treaty provisions are part of the law of england and enforceable by its courts.21 in bulmer he had indeed declared that "any" rights or obligations created by the treaty are under section 2(1) to be given effect "without further ado", which suggests again that he was thinking of incorporation, but is less undiscriminating, though he also said, broadly, parliament had decreed the treaty to be "part of our law".22 in schorsch meie?3 he stated that the treaty was part of english law, observing that it creates rights and obligations not only between member states but also between member states and citizens, and between citizens (citing the european van gend en loos case), suggesting his discrimination between the different effect of the treaty provisions. but he said in respect of article 106 that he was applying the treaty of rome in an english court for the first time, which showed its "great effect", having brought about a "fundamental change".24 this may suggest an uncritical approach to the different effect of provisions of the treaty, as in miliangos lord wilberforce seriously doubted whether article 106, in question, is directly applicable.25 in re westinghouse electric corporation uranium contract litigation mdl docket no. 235,26 denning further remarked that: 19. at p.58. 20. [1977] i all e.r. 881, at p.892. 21. lasok and bridge, law and institutions of the european commullities 4th ed., p.376. 22. [1974] 2 all e.r., at pp.l231-32. 23. [1975] i all e.r. 152, at pp.157-58. 24. ibid., at p.158. 25. [197513 all e.r., at p.8io; see also lasok and bridge, supra n.21, at p.379j bridge, op. cit. n.18, at 20; usher, european court practice, 1.69. 26. [1977] 3 all e.r. at 703, at p.711. in james buchanan v. babco [197711 all e.r. 518, at p.523, he said that "in interpreting the treaty of rome (which is part of our law) we must certainly adopt the new approach" (emphasis added). see also macarthys v. smith [19811 i all e.r. iii, at p.120; garden collagefoods v. m.m.b. [1982] 3 all e.r. 292, at p.294j the first lord fletcher lecture (\ 979), p.12. 22 lord denning and eec law "the eec treaty and all its provisions are now part of the law of england: that is clear from s.2 of the european communities act 1972. we have to give effect the treaty as being incorporated, lock, stock and barrel, into our own law here." by virtue of the section 2 mentioned, in fact, only certain eec rights intended to be given effect to without further enactment shall be enforced accordingly. in this sense, as collins put it, the treaty is not incorporated "lock, stock and barrel",27 and the phrase "and all its provisions" was in itself also misleading; the context was article 85, which denning had decided, on the basis of a decision of the ecj, to have direct enforceability in application des gaz v. palks veritas,2b and regulation 17/62, which as he said,29 is directly applicable. perhaps he was intending to emphasise in general the important fact that provisions of the treaty of rome may be enforced in english courts, and are not "alien law", whereas normally of course treaties and treaty provisions are not part of english law, which the context of his remarks ("incorporated") does suggest. the point of the "lock, stock and barrel" statement may have been that no further parliamentary intervention is required for the treaty provisions to have effect. but that is perhaps open to question also, in the sense that community law is not in its entirety incorporated. sir geoffrey howe, who was in charge of the second reading of the 1972 bill, wrote of the terms of section 2(1): "community law ... has not been incorporated into or made identical with our own domestic law. our courts are simply required to give direct effect to community law according to its own nature, "in accordance with the treaties ... i do not accept in its entirety the phrase 'as part of the law of the united kingdom' [in the 1967 white paper]. community law retains its own nature.,,30 denning did make it clear that not all of the treaty is directly applicable in shields v. e. coomes (holdings) ltd,3) where, after remarking that "all the rights and obligations arising under the treaty are to be given legal effect", he explained the doctrine of direct applicability in some detail: "any citizen ... can require his own courts to enforce his treaty rights. it is not every article which permits of 'direct applicability'. it is only those articles which are sufficiently clear, precise and unconditional as not to require any further measure of implementation." 27. collins, supra n.13, at p.3s; see also lasok and bridge, law and inslillllions of lhe european communilies, p.376, and bridge, supra n.l, pp.14-15. 28. [1974] 3 all e.r. 51, at p.s8. 29. [1977] 3 all e.r., at p.712. 30. "the european communities act 1972", 49iiliemalionalajjilirs (1973) 1, at pp.4-s. 31. [1979] 1 all e.r. 4s6, at p.461. when he wrote on the european act, in 1987, he also did make it clear that "as 1 read section 2 of the [european communities] act, the only provisions of the treaty which are certainly binding in england are those which are operative 'without further enactment''': the salisbury review, april 1987, p.ll (and see i-i.l. deb. vol. 480, 1986, col. 1089); he was, however, contrasting directives which, he said, were binding after further enactment, whereas the european court had held that directives can be enforceable in an english court in the marshall case. 23 the denning lawjournal yet, when denning wrote his what next in the law, he wrote that "the treaty of rome is part of our law", and "all of the articles of the treaty and many of its regulations and directives are to be enforced directly by the english courts. ,,32 again, the assumption in his mind may have been that constitutionally speaking the treaty was "incorporated". this seems to be suggested by the context of the remarks here as well as elsewhere:33 "by an act of parliament ... the treaty of rome is part of our law. our courts· have to give effect to it just as if it had been passed by our parliament ... all of the articles ... are to be enforced . . . even though we have no legislation upon the point passed by our own parliament." in 1986, speaking in the house of lords he similarly stated that, whereas in constitutional law treaties normally are not binding in england, section 2 of the 1972 act made it clear that "all rights, obligations, or whatever, under the treaty are without further enactment to be given effect or used in the united kingdom and recognised and available in law. in other words, every right and obligation in that treaty of rome was brought into our statute by parliament by section 2(1).,,34 yet, in the sense mentioned, these are over-broad statements; the word "all", in both quotations, (or "every"), together with "enforced directly", is misleading.35 again, the "as if it had been passed" is questionable. sir geoffrey howe explained: "community law retains its own nature. certainly it will take effect here by virtue of an act of parliament. but not 'as if enacted' thereby. the point i wish to underline is the provision that is made for the application within this country of future community law that which is 'from time to time provided for by or under the treaties,.,,36 so, to conclude on interpretation of the law, lord denning's judgments and writings are typically vigorous and informative, pointing out the need for different attitudes on eec law, and communicating the general impact of eec law the principles of interpretation, the investigations by the eec commission, and the principles of supremacy and direct applicability. on section 2, however, there have to be reservations about, at least, his expression of the effect of the european communities act 1972, because perhaps he wished to emphasise the general constitutional point of the relationship of treaties to u.k. law. perhaps, leaving schorsch meier aside, it can be said that these failures of expression were not serious, but if denning's purpose was to communicate the dramatic impact of eec law, he arguably over emphasised it here, and left himself open to criticism, especially when his remarks in what next in the law are considered. 32. (1982), pp.293, 295; 'emphasis added'. 33. ibid., at p.294; in the salisbury review, at p.ll; h.l. deb., 1986, vol. 480, col. 1089, he drew attention to the words "without further enactment" but he was concerned partly to contrast the effect of directives. article 189, he thought, envisaged further enactment. 34. h.l. deb. vol. 480, 1986, col. 1060. 35. the context was the european communities (amendment) bill. 36. "the european communities act 1972", supra n.30, at p.5. 24 lord denning and eec law conclusion in general conclusion any judgment on denning's contribution in the field of eec law must seem presumptuous. some of his contributions are open to criticism. the general impression, however, is of a vigorous and lasting contribution to a communication of the impact of eec law, even if it was marred in the loose phraseology on the effect of the treaty of rome and eec law. there was a contribution too in the establishment of guidelines on the reference of questions of eec law to the european court, and in interesting, even radical, but inconsistent thoughts on sovereignty. 25 a personal view ofjustice the right hon. lord justice slade hamilton lj, later lord sumner, once made the stark observation: "whatever may have been the case 146 years ago, we are not now free in the twentieth century to adminster that vague jurisprudence which is sometimes attractively styled 'justice as between man and man,."l this article is an attempt by one english judge, concerned only with civil litigation, briefly to examine the relationship of his work to man's instinctive sense of justice. of all human instincts this sense is one of the most deep-rooted. at a remarkably early age, a young child will have his own strong ideas as to that treatment which is "fair" and that which is ."unfair". (my references to males should, most certainly, not be read as excluding females). he will regard it as his right to receive rewards and punishments which are by comparison neither smaller nor greater, as the case may be, than those which he sees meted out to his brothers, sisters and school-fellows. few children after reaching their third birthday need to be taught the lawyers' maxim 'equality is equity'. not much later the child will come to sense other fundamental elements of justice. he will think it unfair if he is condemned without being heard, or without being given a fair hearing, or by a person whom he regards as judge in his own cause. in his earlier years, however, he will be less concerned with the fairness of the rules which govern his behaviour than with the manner of their application and enforcement; unless he is a natural rebel, he will be disposed to accept the rules themselves simply as part of the background in which he lives. as he grows a little older, a new dimension will be added to his view of justice. he will begin to question the content of the rules themselves. three features are perhaps particularly likely to offend him. the rules should not in his view impose liability withol,lt fault. they should not embody what appears to him a form of unfair discrimination. they should not be retrospective. the parent or teacher who attempts to impose retrospective legislation on his charges may find himself in deep trouble. he is likely to be met with the vehement protest: "no-one ever told me". 1. baylis v. bishop of london [1913] 1 ch.l27, at p.140. iss the denning law journal this same keen instinctive sense of justice is likely to remain with a man throughout his adult life. though further dimensions will be added to it as he matures, it will continue to include all the features already mentioned. this sense will be seen to relate to two quite separate elements, first, the content of the rules by which a person is governed and, secondly, the manner in which those rules are applied and enforced. judges in this country have only limited law-making functions. yet the man on the clapham omnibus is unlikely to separate these two elements in his thinking. judges, as the persons primarily responsible for applying and enforcing the law, may well shoulder the entire blame of popular opinion in any case where a judicial decision offends the sense of justice of the litigant concerned or of the general public. they cannot expect to be a popular race. . since the existing laws constitute the raw material with which judges work, one fundamental, but frequently forgotten, point has to be made concerning the nature of that raw material. however closely any system oflaw may approach perfection, it is inevitable that many of its rules will appear to conflict with man's instinctive concepts of justice. a few elementary examples will suffice to illustrate this point. a student when first embarking on a study of the english law of contract might suppose that, surely, justice demands that no-one will be held legally bound to an agreement unless he intended to contract on the terms asserted against him. the examples given by lord atkin in bell v. lever brothers ltd. 2 might thus come as something of a shock: "a. buys b.'s horse; he thinks the horse is sound and he pays the price of a sound horse; he would certainly not have bought the horse ifhe had known as the fact is that the horse is unsound. if b. has made no representation as to soundness and has not contracted that the horse is sound, a. is bound and cannot recover back the price. a. buys a picture from b.; both a. and b. believe it to be the work of an old master, and a high price is paid. it turns out to be a modern copy. a. has no remedy in the absence of representation or warranty. a. agrees to take on lease or to buy from b. an unfurnished dwelling-house. the house is in fact uninhabitable. a. would never have entered into the bargain if he had known the fact. a. has no remedy, and the position is the same whether b. knew the facts or not, so long as he made no representation or gave no warranty. a. buys a roadside garage business from b. abutting on a public thoroughfare: unknown to a., but known to b., it has already been decided to construct a bypass road which will divert substantially the whole of the traffic from passing a.'s garage. again a. has no remedy." 2. [1932] a.c. 161, at p.224. 156 a personal view of justice as lord atkin pointed out, "all these cases involve hardship on a and benefit b as most people would say, unjustly". on further reflection, however, the student will soon come to understand that in such cases, as in so many others, the law must hold a balance between conflicting interests. it may be harsh to hold a to a contract which he entered into under a genuine mistake. however, provided only that b did not know of a's mistake, it might cause greater hardship to let a evade the performance of his bargain simply by showing that he had made a mistake: "were such to be the law the performance of a contract could rarely be enforced upon an unwilling party who was also unscrupulous.,,3 likewise, the student first approaching the english law of tort might perhaps anticipate that in justice, in the absence of any contract, the civil law would require a person to recompense another for the injury he had done him only ifhe had been in some way or other at fault. his initial approach might be the same as that expressed in salmond on the law of torts: "there is no more reason why i should insure other persons against the harmful results of my own activities, in the absence of any mens rea on my part, than why i should insure them against the inevitable accidents which result to them from the forces of nature independent of human actions altogether. ,,4 however, he could soon learn that our law of tort is founded on no such general principle. he will read of a number of instances where liability is independent of intention or negligence, set out in salmond on the law of torts: "liability in libel does not depend on the intention of the defamer, but on the fact of defamation; so too there is strict liability for damage done by a wild animal, or by the escape of dangerous things accumulated for some non-natural purpose (the rule in rylands v. pletcher); again, liability is strict when one is vicariously responsible for the acts of another. in cases such as these the security of the particular interest of the plaintiff is predominant over the defendant's interest in freedom of action."s however, the authors point out (ibid.) that even in such cases liability, while strict, is never absolute; in appropriate cases, defences such as act of god or act of a third party are available. the student will thus come to appreciate that, in such instances, the common law, by a delicate process of social engineering, is doing its best to hold a fair balance between the need to compensate a plaintiff injured by another and its reluctance to impose liability on a defendant who caused the loss without intention or negligence. 3. see tamplill v. james (1880) is ch.d.215, at p.218 per baggallay lj. 4. 6th ed., at pp.12-13. 5. 19th ed., p.37. 157 the denning law journal a similar discrepancy will be discovered by the student in our criminal law. justice might seem to demand that a person should not incur criminal liability unless he intended to bring about or recklessly brought about those elements which constitute the crime. such in general is the pattern of our criminal law. public policy, however, has made it necessary for the legislature to create many exceptions where criminal liability may arise without any moral fault. one sees a similar anxious concern to strike the proper balance between essentially conflicting interests in many recent decisions of the house of lords to mention only one example, between freedom of speech and the need to protect the british security service in attorney-general v. guardian newspapers ltd .. 6 the demands of practicality, as well as those of public policy, must in frequent instances transcend what might appear to be the requirements of justice as between the interested parties to litigation. justice might appear to demand that a person with contractual rights to property should be entitled to recover in negligence from a third party for pecuniary loss carelessly caused by damage to the property. yet a long line of authority, apparently based on pragmatic considerations, shows he can only recover if at the time when the damage occured he had either a proprietary or possessory title to the property: see leigh and sillavan ltd. v. aliakmon shipping co. ltd .. 7 "the justification for denying a right of action to a person who has suffered economic damage through injury to the property of another is that for reasons of practical policy it is considered inexpedient to admit his claim": candlewood navigation corporation ltd. v. mitsui o.s.k lines ltd .. 8 the balancing process was referred to in terms in official solicitor to the supreme court v. k.9 this case concerned the rights of a parent to see reports of the official solicitor in wardship proceedings. lord evershed said: "it follows, therefore, in my opinion, that there cannot be in circumstances such as exist or as are suggested in the present case, an absolute right on the mother's part to see the report of the official solicitor. on the other hand, i have equally no doubt that the judge must give very great weight indeed to the principle that he should not base a conclusion adverse to a proper party to the proceedings (and particularly a parent) upon information which that party has not seen and has had no opportunity of challenging or contesting. when a situation arises such as has in the present case arisen, there may well indeed have to be, in the language of russell lj, a 'balancing' of the generally accepted right of a properly interested party, particularly a parent, to disclosure of information submitted to the judge upon which he proposes in some measure to base his conclusion (on the one hand) and the paramount interest of the ward of court (on the other hand)."l0 6. [1987] i w.l.r. 1248. 7. [1986] a.c. 785, at p.809 per lord brandon of oakbrook. 8. [1986] a.c. i, at p.17 per lord fraser of tullybelton. 9. [1965] a.c. 201. 10. at p.2i9. 158 a personal view of justice in considering the relationship of the functions of our judges to man's instinctive concepts of justice, one thus starts from the premise that the system of law which the courts have to operate, like any other civilised system of law, is a delicately balanced mechanism designed as well as possible to reconcile conflicting social aims and interests which are to some extent irreconcilable. the layman may not fully appreciate how accurately the emblem of the scales of justice represents the problem facing the law-makers, as well as those concerned with the enforcement of the law. even in utopia a precisely even balance could never be achieved. such then is the nature of the raw material of the laws which our judges have to operate. the form of the judicial oath, derived from the promissory oaths act 1868, binds the taker "to do right to all manner of people after the laws and usages of this realm without fear or favour affection or iii will." the words "without fear or favour affection or iii will" speak for themselves, reflecting, as they do, fundamental concepts of the administration of justice. judges "must act in good faith and listen fairly to both sides, for that is a duty lying upon everyone who decides anything." ii up to a point, the duties imposed on a judge of first instance by the remainder of the judicial oath are equally clear. he must first ascertain the relevant facts. in this exercise he finds himself restricted by the technical rules of evidence which, as diplock lj (as he was then) pointed out in r. v. deputy industrial injuries commission, ex p. moore themselves form no part of the rules of natural justice: "for historical reasons, based on the fear that juries who might be illiterate would be incapable of differentiating between the probative values of different methods of proof, the practice of the common law courts has been to admit only what the judges then regarded as the best evidence of any disputed fact, and thereby to exclude much material which, as a matter of common sense, would assist a fact-finding tribunal to reach a correct conclusion."12 though this is perhaps a gross over-simplification of a complex process, it may be said that, after the facts have been ascertained, most cases which come before any judge of first instance will be recognised by him as falling within one of three categories, namely: (a) where a statute or a rule of court or the common law explicitly confers on him a discretion to reach such decision as he thinks fit; or (b) where, on the facts as found, he considers the case to be covered by authority binding on him, either in the form of a directly applicable statutory provision or of a previous decision or rule of court which he is bound to follow; or (c) where no discretion has been explicitly conferred on him but the case does not appear to be covered by any authority which binds him. 11. see board of education oj}ice v. rice [1911] a.c. 179, at p.1s2 per lord loreburn lc. 12. [1965] 1 qb. 456, at p.4ss. 159 the denning law journal the judge's ability to reach a decision which accords with his instinctive sense of justice must greatly depend on the category into which the case before him falls. the cases which fall into category (a) cover a very wide field. in some of them the terms upon which the relevant discretion has been conferred on the judge may themselves preclude or permit only a limited reference to concepts of justice. thus, simply for example in deciding any questions as to the custody or upbringing of a minor, the court is required to regard the minor's welfare as "the first and paramount consideration" and must not take into consideration whether from any other point of view the father's claim is superior to that of the mother or the mother's claim is superior to that of the father. 13 justice as between mother and father can thus play little or no part in the court's decision. at the other extreme, rare cases may arise where the judge finds that the relevant law leaves him free to take into account not only his own concepts of justice but to pass a moral judgment. one striking example is the principle of ex. p. jamesl4 by virtue of which the court may, in special circumstances, intervene to preclude a trustee in bankruptcy as an officer of the court from following the strict rules of bankruptcy in dealing with the bankrupt's estate. buckley lj defined the principle thus in in re tyler: 15 "assuming that he has a right enforceable in a court of justice, the court of bankruptcy or the court for the administration of estates in chancery will not take advantage of that right if to do so would be inconsistent with natural justice and that which an honest man would do." while concepts of justice and reasonableness are very familiar and usually present judges with little difficulty, concepts of morality are another matter. our law may perhaps be regarded as embodying merely minimum standards of morality below which the community will not allow its citizens to fall. frequent judicial dicta, however, have emphasized that our courts are not courts of morals. most judges through long training show a marked reluctance to pass a moral judgment in civil cases unless they think it necessary to do so. scrutton lj, though recognising that the principle of ex p. james is well established, expressed his misgivings about it in forceful terms in in re wigzell: "now the decisions of this court have established that though in law the money is the money of the trustee for the creditors, yet he may be restrained from enforcing his claim to it or retaining it if (and a series of phrases none of which are very definite have been used) it were not honourable if it were not high minded if it would be contrary to natural justice if it would be shabby if it would be a dirty trick for him to retain it . . . i desire to say very respectfully that it seems to me that when we have got into this atmosphere we 13. see section i of the guardianship of minors act 1971, as amended. 14. (1874) l.r. 9 ch.609. 15. [1907] i k.b. 865, at p.873. 160 a personal view of justice have reached a region of uncertainty. atkin lj says in thellusson's case that it may be difficult to find out honesty but it can be done. of course there is the old saying that it may be difficult to define an elephant but you will know one when you see one; and perhaps a number of people seeing an elephant may all agree that it is an elephant, but a number of people looking for honesty easily find quite different things, and yet all may be perfectly honest and high-minded in differing in their views of morality upon a particular transaction. i entirely agree with salter j in this case that it is very difficult to call upon judges, who may be assumed to know the law, to lay down standards of high-mindedness or honour as to which perfectly honest and honourable persons may take entirely different views.,,16 most commonly, however, where the judge is explicitly invested with a discretion at all, it is a discretion to reach such decision as he considers "just and equitable" or "just and reasonable" or expressed in some such terms. in such cases the judge of first instance perhaps finds himself as close as he will ever get to being in a position to administer justice as between man and man. while he may find the matter requires careful study and deep thought, much more often than not he will have little difficulty in reaching his ultimate conclusion. he will, of course, draw on his reserves of experience, but he will also be in a position without misgivings to draw on those fundamental instincts of justice which have grown with him throughout his life. this combination will in the end lead him to a conclusion with some confidence and with the assurance that an appellate court will only interfere with the exercise of his discretion within the limits of well-established principles. as asquith lj expressed the point, typically felicitously, in bellenden v. sattherwaite: "we are here concerned with a judicial discretion and it is of the essence of such a discretion that, on the same evidence, two different minds might reach widely different decisions without either being appealable."17 if after the facts have been found a case is seen not to fall within category (a) above, the judge will then (ordinarily) have to place it within category (b) or category (c). this categorisation may in some cases prove to be one of the most testing, as well as one of the most important, of his judicial functions. if the case appears to fall within category (b) and the relevant authorities appear to lead him to a conclusion which accords with his own instinctive sense of justice and reasonableness, no difficulty arises. if, however, the authorities appear to lead him in another direction, he may be faced with a dilemma. he will have a natural reluctance to come to a decision which offends his own concepts of justice or common sense. on the other hand, he will realise that not only does his judicial 16. [1921] 2 k.b. 835, at pp.858-859. 17. [1948] 1 all e.r. 343, at p.345. 161 the denning law journal oath ultimately oblige him to comply with our rules of stare decisis but that these rules themselves have much to commend them. what donaldson lj, as he then was, once referred to as a "portable palm-tree"i8 might enable a judge to do what he considered best justice as between litigants in any given case. on the other hand, certainty and predictability in the administration of the law are surely themselves important facets of justice. they reflect man's instinctive expectation that there should be an even-handed application of the rules which govern his behaviour, both to him and all his fellow-men. it is important the he should know or be able to ascertain in advance, if he so w~shes, the probable legal consequences of what he does. if he should contemplate prosecuting or defending litigation it is important that, so far as possible, he can obtain confident legal advice as to the probable outcome. the rules of stare decisis can by no means be regarded as mere impediments to the proper administration of justice. they perform a valuable function. lord scarman put the point thus in duport steels ltd. v. sirs: "in our society the judges have in some aspects of their work a discretionary power to do justice so wide that they may be regarded as law-makers. the common law and equity, both of them in essence systems of private law, are fields where, subject to the increasing intrusion of statute law, society has been content to allow the judges to formulate and develop the law. the judges, even in this, their very own field of creative endeavour, have accepted, in the interests of certainty, the self-denying ordinance of "stare decisis", the doctrine of binding precedent: and no doubt this judicially imposed limitation on judicial law-making has helped to maintain confidence in the certainty and evenhandedness of the law."i9 however, it must be recognised that the rules of stare decisis may be an embarrassment in the relatively rare occasions where the ratio decidendi of an earlier decision, binding on the court, appears at first sight to apply to the case before it, but that earlier decision appears to be a bad one which would produce an unjust result. the approaches of individual judges when faced with this situation will differ according to their temperaments and intellectual processes. lord simonds perhaps represented the most conservative. lord denning has been a champion of a more flexible approach. yet he himself well recognised the merits of the stare decisis rules. in the discipline of law he wrote: "let it not be thought from this discourse that i am against the doctrine of precedent. i am not. it is the foundation of our system of case law. this has evolved by broadening down from precedent to precedent. by standing by previous decisions, we have kept the common law on a good course. all that i 18. chiefcolislable of ke1l1 v. v. [1983] 1 qb. 34, at p.4s. 19. [1980] 1 w.l.r. 142, at p.168. 162 a personal view of justice am against is its too rigid application a rigidity which insists that a bad precedent must necessarily be followed. i would treat it as you would a path through the woods. you must follow it certainly so as to reach your end. but you must not let the path become too overgrown. you must cut out the dead wood and trim off the side branches, else you will find yourself lost in thickets and brambles. my plea is simply to keep the path to justice clear of obstructions which would impede it.,,20 though every judge will have his own approach to authority, every judge will feel unease in reaching a decision which offends his concepts of justice or common sense and will seek an escape route before doing so. prominent among the possible escape routes is the distinction of the earlier case on its facts. other possible escape routes are well known to any judge. the differences in the manner in which individual judges approach the stare decisis rule depend in the last resort on the extent to which they are prepared to subjugate entire intellectual honesty to their desire to produce a result which both does justice between litigants and seems to accord with common sense. it must be recognised that most judges will on occasions be prepared to follow this course to some extent. it is only a question of degree. the house of lords, it may be noted, relieved itself of much of the burden of this moral dilemma when in 1966 it altered its previous practice by announcing that it regarded itself as free to depart from previous decisions when it thought right to do so.21not very long afterwards there followed a decision which well illustrated the dilemma in which a lower court may find itself when faced with unattractive authority. in british railways board v. herrington,22 the defendants owned an electrified line which was fenced off from a meadow where children played. the station master was notified in april 1965 that children had been seen on the line and that the fence was in a dilapidated condition. in june the plaintiff, aged six, trespassed over the broken fence from the meadow where he had been playing and was injured on the live rail. he brought an action claiming damages for negligence. the obstacle to his claim was a decision of the house of lords in addie v. dumbreck23 to the effect that a trespasser could only recover in respect of intentional or reckless injury. the injury to the boy, peter herrington, could not be said to have been intentional. it was very doubtful whether it could be said to have been reckless. "yet", as lord diplock said in his speech in the house of lords, "all nine judges who have been concerned with the instant case in its various stages are convinced that the plaintiff's claim ought to succeed; and, if i may be permitted to be candid, are determined that it shall. the problem of judicial technique is how best to surmount or to circumvent the obstacle presented 20. (1979), at p.314. 21. note (judicial precedetlt) [1966] 1 w.l.r. 1234. 22. [1972] a.c. 877. 23. [1929] a.c. 358. 163 the denning lawjournal by the speeches of the lord chancellor and viscount dunedin in addie's case ... ".24 the court of appeal had met the difficulty posed by addie's case by treating the conduct of the board on the facts as recklessness. the house of lords regarded it as no more than negligence, but upheld the plaintiff's claim by declining to follow its previous decision. . some cases fall on the border line between categories (b) and (c). here there may be the opportunity for judges of sufficient vision to derive a newly stated principle from different strands of previous authority. lord atkin did so in the field of negligence in donoghue v. stevenson.25 lord denning did so in the field of equitable estoppel in central london property trust ltd. v. high trees house ltd .. 26 others will fall fairly and squarely within category (c). there, to a lesser or greater degree, the judge of first instance will be entitled and obliged to make new law. in doing so, he will be likely to draw on previous authority by way of analogy. most of all, however, he will draw on what he regards as the dictates of common sense, justice and public policy and to seek to develop what he regards as fundamental principles of law. one sees all these elements invoked by the courts in a series of recent decisions on the question whether in a given situation a duty of care in negligence is or is not owed by one person to another. lord diplock in dorset yacht co. v. home office, while recognising the value as a guide of lord atkin's statement of the "neighbour" principle in donoghue v. stevenson, warned that it could not be used as a universal guide: "the branch of english law which deals with civil wrongs abounds with instances of acts and, more particularly, of omissions which give rise to no legal liability in the doer or omitter for loss or damage sustained by others as a consequence of the act or omission, however reasonably or probably that loss or damage might have been anticipated. the very parable of the good samaritan (luke 10, v.30) which was evoked by lord atkin in donoghue v. stevenson illustrates, in the conduct of the priest and of the levite who passed by on the other side, an omission which was likely to have as its reasonable and probable consequence damage to the health of the victim of the thieves, but for which the priest and levite would have incurred no civil liability in english law. examples could be multiplied. you may cause loss to a tradesman by withdrawing your custom though the goods which he supplies are entirely satisfactory; you may damage your neighbour's land by intercepting the flow of percolating water to it even though the interception is of no advantage to yourself; you need not warn him of a risk of physical danger to which he is about to expose himself unless there is some special relationship between the two of you such as that of occupier of land and visitor; you may watch your neighbour's goods being ruined by a thunderstorm though the slightest effort on your part could protect them 24. supra n.]6, at p.931. 25. (]932) a.c. 562. 164 a personal view of justice from the rain and you may do so with impunity unless there is some special relationship between you such as that of bailor and bailee.,,27 the years following the dorset yacht decision have been marked by frequent but not perhaps wholly successful attempts to lay down a comprehensive test as to whether a duty of care exists in a given situation. the "two stage test" formulated by lord wilberforce in anns v. merton london borough councip8 has not received general acceptance.29 recent decisions of the house of lords place a strong emphasis on justice and reasonableness. "so in determining whether or not a duty of care of particular scope was incumbent upon a defendant it is material to take into consideration whether it is just and reasonable that it should be so. ,,30 since the categories of negligence are not closed, this leaves the judge with a wide law-making capacity where he is asked to decide whether or not a owes b a duty of care in negligence in tort in a given situation not precisely covered by authority. this, however, is merely one example among many of a category (c) case. it is, in my view, important to recognise that when our courts at any level make new law, they are doing so retrospectively. while they are not precluded from making obiter pronouncements on hypothetical points of law by way of guidance for the future, their function is to decide the issues of fact and law which have arisen in the case before them. furthermore, not only past transactions between the parties to the litigation will be affected by their decision. it may well be that their decision will have an impact on past transactions between persons not connected with the litigation. at least below the house of lords, courts do not have the ability to limit the impact of their decision to future transactions. furthermore, while in theory the house of lords or court of appeal in overruling previous decisions do no more than declare correctly the law which has been previously incorrectly declared, they are in practice making new law retrospectively. it follows, in my view, that courts at all levels should be cautious in making new law, whether by deciding to follow previous decisions or in any other manner. the need for predictability, which is itself such an important element of justice, so demands. in his 1987 maccabean lecture in jurisprudence the lord chancellor, lord mackay of clashfern, spoke of the problems of reconciling the desire for certainty and stability with the need for change and referred to certain principles which the house of lords has applied to limit the ambit of its powers to make new law by overruling its previous decisions. first, the power to overrule such a previous decision is used sparingly, on the ground that it would otherwise weaken 26. [1947] k.8. 130. 27. [1970] a.c. 1004, at p.1060. 28. [1978] a.c. 728, at pp.751-752. 29. see yum kun yeu v. a-g of hong kong [1987] 3 w.l.r. 776, at p.785 per lord keith of kinkel. 30. per lord keith of kinkel in governors of the peabody donation flwd v. sir lindsay parkinson (5 co. ltd. [1985] a.c. 210, at p.241. 165 the denning lawjournal existing certainty in the law. secondly, the house has indicated that only in rare cases should it be prepared to overrule its previous decisions concerning the construction of statutes or other documents. the lord chancellor pointed out that the overruling decision must be given full retrospective effect even if it causes injustice by disturbing reasonable expectations and reliance placed on earlier decisions. generally, in the context of judicial law-making at all levels, an important distinction, in my view, falls to be drawn between those cases where persons are likely to have acted in reliance on the supposed existing state of the law and those where they probably have not done so. typical of the second class of case are cases where the court is asked to decide whether a owes b a duty of care in negligence. by the nature of such a case, it is unlikely that the careless a was in any way influenced in his acts or omissions by any assumptions as to the state of the law. typical of the first class are cases where persons are likely to have attempted to discharge particular statutory obligations in reliance on judicial interpretations of the relevant statutej or where persons are likely to have arranged their financial affairs in reliance on decisions relating to our fiscallegislationj or where persons are likely to have entered into agreements relating to the occupation of property in reliance on decisions indicating whether the effect is or is not to create the relationship of landlord and tenant. i would venture to suggest that, in the first class of case, the courts at any level should be particularly hesitant before overruling a long established line of authority or even before departing from a view of the lawwhich has been long held by the profession. ordinarily in such a case the broader interests of justice would seem to me to demand that the situation be dealt with by prospective legislation by parliament rather than by retrospective law-making by the courts. any discussion of the relationship between the functions of judges and justice would be incomplete without a passing reference to the wide and generally welcome powers of the court, as it were, to go back to nature by way of interfering on judicial review with the decisions of public bodies or officials who, in reaching an administrative decision, have failed to observe the basic rules of natural justice which, as harman lj put it in ridge v. baldwin "after all is only fair play in action" .3 i fair play in action is surely, within the restrictions of their obligations and the raw material with which they are dealing, what all judges ultimately seek to achieve. in the conduct of their business one particular difficulty with which they are faced is that of ensuring reasonable expedition, while at the same time attempting to ensure that justice is not only done, but also seen to be done. \vhen a case is presented by a litigant in person or incompetent advocate, it may prove a formidable task to strike the right balance between these two objectives. few judges, i think, would be confident that they are wholly successful in achieving it. 31. [1963] 1 qb. 539, at p.578. 166 a personal view of justice as to the content of their decisions, lord macmillan once went so far as to write: "in almost every case except the very plainest, it would be possible to decide the issue either way with reasonable justification.'>32 this was thought-provoking exaggeration. sir nicolas brown-wilkinson vc found himself possessed of no such option in the recent case of in re t. h. knitwear ltd., saying: "i would like to be able to hold in favour of the commissioners. it is to my mind manifestly wrong that the contributories should receive a windfall because the vat, which would otherwise have indirectly depleted the assets available for them, has been remitted by the commissioners to the suppliers under a statutory relief. but i must decide in accordance with legal principle. i must not distort legal principles in order to produce what, to my mind, would be a just result.,,33 however, if in any case judges find their intellectual processes pulling them in one direction and their sense of fair play pulling them in another, it must be time for them, at very least, to consider whether they may not be misinterpreting the relevant law. much more often than not our law avoids being an ass. members of appellate courts, while less rigidly fettered by precedent than courts of first instance, may find themselves more restricted in other ways. indeed, in those cases where the decision at first instance has involved the exercise of a judicial discretion or depended on an apparently surprising finding of fact, they may find their powers to do what they personally consider would amount to best justice as between man and man singularly circumscribed. nevertheless, for practical purposes, judges at any level frequently have the choice of a number of different routes leading to their final conclusion. the conscious thinking of most of us tends to run more along pragmatic than abstract lines. however, it may do no harm if from time to time we attempt to analyse the basic instincts which have grown with us from early childhood and for better or worse influence us in deciding which signpost to follow. 32. law and other things, p.48. 33. [1987] 1 w.l.r. 371, at p.375. 167 117 the denning law journal 2018 vol 30 pp 117-151 undue influence: towards a unifying concept of unconscionablity? mark pawlowski * 1 abstract the article argues for an assimilation of the related doctrines of undue influence and unconscionable dealings under one common umbrella of unconscionability. the interrelationship between unconscionable bargains and undue influence under english law is considered in some detail, as well as developments in other commonwealth jurisdictions, notably, in canada, australia and new zealand. after examining the views of several academic commentators, the conclusion is that such an assimilation would do much to rationalise and simplify current english law. if, however, the english courts are reluctant to undertake what is perceived to be essentially a function of parliament in developing the law, serious thought should be given to rationalising this area of law by means of legislative intervention. 2 introduction to what extent would it be desirable to subsume the doctrine of undue influence under a wider notion of unconscionability? lord denning mr, in the well-known case of lloyds bank ltd v bundy,1 attempted to bring together the law on duress, unconscionable bargains and undue influence under the one umbrella of “inequality of bargaining power”. in his formulation, the concepts unconscionability and exertion of excessive power or coercion by a stronger party over a weaker one, were to be regarded as key elements in establishing the basis for equity’s intervention. unconscionability, however, as a unifying doctrine in the context of undue influence and unconscionable bargains has found little support in * llb (hons), bcl (oxon), aciarb, sfhea, barrister, professor of property law, school of law, university of greenwich. 1 [1974] 3 all er 757 (ca). see also, arrale v costain civil engineering ltd [1976] lloyd’s rep 98 (ca); levison v patent steam carpet cleaning co [1978] qb 69 (ca); avon finance co ltd v bridger [1985] 2 all er 281 (ca), where lord denning mr had occasion to repeat his formulation. undue influence: towards a unifying concept of unconscionablity? 118 the english case law on the ground that the need for a more general formulation of principle (such as that enunciated by lord denning in bundy) is a matter of legislative reform rather than judicial development.2 however, not all judges have agreed. in credit lyonnais bank nederland nv v burch,3 nourse lj appears to have accepted4 that unconscionable bargains and cases involving undue influence may come under the general heading of “inequality of bargaining power”, citing balcombe lj's judgment in the earlier case of backhouse v backhouse. 5 again, in langton v langton, 6 mr awh charles qc (sitting as a deputy high court judge) opined that the rationale underlying the doctrine of unconscionable bargains was closely linked to that behind a class 2b presumed undue influence relationship. he stated:7 “... it seems to me that the 'unconscionable bargain' cases which arise as to particular transactions with poor and ignorant people could, and should, now be treated on the basis of, or by analogy to, the undue influence cases as one of the relationships where in all the circumstances a presumption that the transaction was procured by undue or improper influence arises and therefore has to be justified by the purchaser.” in the deputy judge's view, what underlies equity in both the presumed undue influence and unconscionable bargain cases “is the identification of a relationship which gives rise to a presumption that the donor, or recipient, should have the onus of establishing the righteousness of the transaction.”8 3 unconscionability in other areas of equity there have, undoubtedly, been other areas in equity which have benefitted from a rationalisation of principles under the one umbrella of unconscionability. an obvious example has been the willingness of the 2 see national westminster bank plc v morgan [1985] 1 all er 821 (hl) 830 (lord scarman). 3 [1997] 1 all er 144 (ca). 4 ibid 151. 5 [1978] 1 all er 1158 (ca) 1166. 6 [1995] 2 flr 890. 7 ibid 908. 8 langdon (n 6) 909 the denning law journal 119 english courts to adopt a broader-based doctrine of unconscionability as underlying proprietary estoppel claims and the personal liability of a stranger to a trust who has knowingly received trust property in breach of trust. the decisions in gillett v holt,9 jennings v rice10 and campbell v griffin11 in the context of proprietary estoppel and bank of credit and commerce international (overseas) ltd v akindele12 on the subject of receipt liability demonstrate the judiciary’s growing recognition that the concept of unconscionability provides a useful mechanism for affording equitable relief against the strict insistence on legal rights or unfair and oppressive conduct. in the context of imperfect gifts, the well-known principle in milroy v lord13 establishes that an attempted transfer of land or personalty, which does not meet the formal requirements of writing and registration, may take effect in equity provided that the transferor has done everything required of him and the only steps remaining to be done are to be performed by a third party. in these circumstances, the transferor will be treated as holding the legal title to the property as bare trustee for the transferee.14 however, more recently, the court of appeal in pennington v waine15 decided that where the donor had manifested an immediate and irrevocable intention to donate shares to another and had instructed her agent to execute the transfer, the donor would not be permitted to deny the interest acquired by the donee. significantly, the transfer of shares in this case was treated as complete because it would be unconscionable for the transferor to recall the gift. the decision has not been without its critics not least because it is argued that the effectiveness of transfers of property should not be determined by the uncertainties associated with whether a court considers that it would be unconscionable for the donor to change his mind and seek to recall the gift.16 other commentators, on the other hand, have welcomed this development emphasising the flexibility and 9 [2001] ch 210 (ca). 10 [2002] ewca civ 159 (ca). 11 [2001] wtlr 981 (ca). see also, most recently, ottey v grundy [2003] ewca civ 1176. 12 [2000] 4 all er 221 (ca). 13 (1862) 31 lj ch 798 (hl). 14 re rose [1952] ch 499 (ca), (transfer of shares). see also, mascall v mascall (1984) 49 p & cr 119, (transfer of registered land). 15 [2002] 1 wlr 2075 (ca). 16 see m halliwell, ‘perfecting imperfect gifts and trusts: have we reached the end of the chancellor’s foot?’ [2003] conv 192. undue influence: towards a unifying concept of unconscionablity? 120 conceptual clarity that an approach based on unconscionability brings over established equitable principles.17 in terms of clarity, the decision of biggs j in curits v pullbrook 18 has sought to narrow the concept of unconscionability in this context by treating the question as essentially one of detrimental reliance by the donee which binds the conscience of the donor so as to justify the imposition of a constructive trust. in his lordship's view, the donee in pennington had agreed to become a director of the subject company upon an assumption that he had received an effective gift of shares in it. this would suggest that the unconscionability test in imperfect gift cases is simply another example of the operation of proprietary estoppel. where the parties have entered into an arrangement involving the purchase of property by one of them, that party may be required to hold the property on constructive trust for both of them if it is considered to be unconscionable for the party acquiring the property to deny that the other party has an equitable interest in the property.19 the three key ingredients to raise an equity of this kind are: (1) the existence of an arrangement between the parties that beneficial ownership in the property is to be shared; (2) the claimant must have relied on the arrangement by doing (or omitting to do) something which either confers an advantage on the defendant or is detrimental to the ability of the claimant to acquire the property on equal terms; and (3) the defendant must have acted inconsistently with the arrangement. significantly, it is the acting inconsistently with the arrangement, once the claimant has relied on it, that renders the defendant’s conduct unconscionable and which triggers the imposition of a constructive trust.20 the doctrine of secret trusts evolved originally on the basis of not allowing a statute to be used as an instrument of fraud so as to deny the validity of a secret trust for lack of writing.21 enforcement of the secret 17 see j garton, ‘the role of the trust mechanism in the rule in re rose’ [2003] conv 364. 18 [2011] ewhc 167 (ch) [43], [46]. see also, zeital v kaye [2010] ewca civ 159 (ca) [44]. 19 see pallant v morgan [1953] ch 43. 20 see banner homes group plc v luff developments ltd [2000] ch 371; yaxley v gotts [2000] ch 162; herbert v doyle [2010] ewca civ 1095; dowding v matchmore ltd [2016] ewca civ 1233; generator developments lpp v lidl uk gmbh [2018] ewca civ 396. 21 see mccormick v grogan (1869) lr 4 hl 82, 88-89, 97; blackwell v blackwell [1929] ac 318 [335]. the denning law journal 121 trust does not, however, depend on the actual fraudulent enrichment of the secret trustee – instead, it can be supported on the basis of a general fraud committed upon the testator and the secret beneficiaries by reason of the failure to observe the intentions of the testator and the destruction of the beneficial interests of the secret beneficiaries. in other words, the emphasis is on potential not actual wrongdoing. the better view, therefore, is that the enforcement of both fully and half-secret trusts rests on the principle of enforcing equitable obligations binding the secret trustee’s conscience. 22 given that secret trusts are enforced to prevent fraud in this wider sense, it is then natural to characterise such trusts as constructive trusts falling within the exception to the requirement of writing under s.53(2) of the law of property act 1925. the constructive trust is imposed on the secret trustee because in good conscience he is required to hold the property on trust for the secret beneficiary. equity will not permit the lack of writing to defeat not only the wishes of the testator, but also undermine the expectations of the secret beneficiary. in re cleaver,23 nourse j characterised secret trusts as constructive trusts. in kasperbauer v griffith,24 the court of appeal accepted that, in secret trust cases, equity acts to prevent fraud or unconscionable conduct by imposing a constructive trust on the secret trustee. in gillett v holt, 25 roberty walker lj acknowledged that secret trusts are enforced in order to prevent unconscionable conduct. mutual wills arise where two parties (usually husband and wife) make identical wills, pursuant to a legally binding agreement, in each other’s favour on terms that the survivor will not revoke his will without the consent of the other. normally, revocation will give rise to a claim for breach of contract during the joint lives of the parties, but when one party has died, if the survivor revokes, the deceased can no longer maintain an action for breach of contract. instead, a constructive trust is imposed in equity on the survivor from the moment of the death of the first to die for the benefit of those entitled under the deceased’s estate in order to prevent an equitable fraud. significantly, for present purposes, the constructive trust arises by operation of law in response to the survivor’s unconscionable conduct in not leaving the property as the parties had 22 see ottaway v norman [1972] ch 698, 711; ledgerwood v perpetual trustee co ltd (1997) 41 nswlr 532. 23 [1981] 1 wlr 939, 947. 24 [2000] wtlr 333. 25 [2001] ch 210, 228, referring also to mutual wills where equity has intervened to prevent unconscionable conduct. undue influence: towards a unifying concept of unconscionablity? 122 agreed.26 the unconscionability, in these circumstances, arises because the other party has relied on the survivor’s promise. 4 undue influence 4.1 modern categorisation the english courts have traditionally divided the cases on undue influence into two distinct categories, namely, those involving (1) actual; or (2) presumed undue influence. 27 these two categories were further refined by the house of lords in the landmark case of barclays bank plc v o'brien.28 in class 1 cases, it is necessary for the claimant to prove that the wrongdoer exerted undue influence on the complainant to enter into the transaction. in class 2 cases (involving presumed undue influence), the presumption of undue influence arises when an appropriate relationship exists between the parties. here, the complainant has to show, initially, that there was a relationship of trust and confidence between the complainant and the wrongdoer of such a nature that it is fair to presume that the wrongdoer abused that relationship in procuring the complainant to enter into the transaction. in this category, therefore, there is no requirement to produce evidence that actual undue influence was exerted in relation to the transaction. the relationship can be established in one of two ways. first, certain types of relationship, as matter of law, raise the presumption of undue influence automatically (class 2a). these include solicitor and client, doctor and patient, and parent and child. significantly, however, the relationship of husband and wife does not come within this category. secondly, even if there is no relationship falling within class 2a, the specific relationship between the particular parties may be such as to give rise to the presumption. here, the complainant must prove the existence of a relationship under which the complainant generally “reposed trust and confidence” in the wrongdoer (class 2b). the relationship of husband and wife falls within this category. an additional element in the presumed undue influence cases (class 2a and 2b) has been the need to show that the transaction was manifestly 26 see ollins v walters [2009] ch 212 [37] (mummery lj). 27 see allcard v skinner (1887) 36 ch d 145. 28 [1993] 4 all er 417 (hl), adopting the two-fold classification set out in bank of credit and commerce international sa v aboody [1992] 4 all er 955 (ca). the denning law journal 123 disadvantageous to the complainant. 29 the requirement was first introduced by the house of lords in national westminster bank plc v morgan30 and has since been criticised both academically and judicially. in cibc mortgages plc v pitt,31 for example, lord browne-wilkinson pointed out that this requirement was at odds with the line of cases involving abuse of confidence where the onus is on the fiduciary to show that the transaction is a fair one. because of the obvious overlap between such relationships and those in which undue influence is presumed, a cogent argument exists for abandoning the requirement of manifest disadvantage altogether in undue influence cases. instead, the onus would be on the person taking advantage of the claimant to show the “righteousness” of the transaction. unfortunately, the abuse of confidence cases were not cited to the house of lords in morgan and so the interaction between the two sets of principles were not considered. although subsequently the house of lords in royal bank of scotland v etridge (no 2) 32 recognised that the requirement of manifest disadvantage had been the subject of some criticism, it declined to depart from its earlier decision in morgan on this point. it reiterated that the burden of proving an allegation of undue influence rested upon the person who claims to have been wronged. the evidence required to discharge that burden of proof depended on a variety of factors, including the nature of the alleged undue influence, the personality of the parties, their relationship, the extent to which the transaction cannot readily be accounted for by ordinary motives of ordinary persons in that relationship and all the circumstances of the case. normally, proof that the complainant placed trust and confidence in the other party in relation to the management of the complainant’s financial affairs, coupled with a transaction which calls for explanation, would be sufficient to discharge the burden of proof. this would then shift the evidential burden onto the wrongdoer to produce evidence to counter the inference of undue influence. 29 see cibc mortgages plc v pitt [1993] 4 all er 433 (hl). 30 [1985] ac 686 (hl). 31 [1993] 4 all er 433 (hl). see also, barclays bank plc v coleman [2001] qb 20 (ca) 30-32 (nourse lj). 32 [2002] ac 773 (hl). undue influence: towards a unifying concept of unconscionablity? 124 4.2 liability of lending institutions in barclays bank v o’brien,33 the house of lords concluded that a wife’s right to have a transaction set aside as against her husband on the grounds of her husband’s undue influence will be enforceable against a bank (or other creditor) if either the husband was acting as the bank’s agent, or the bank had actual or constructive notice of the facts giving rise to her equity. undoubtedly, cases where the husband is acting as the bank’s agent are rare, so in the majority of claims the question has been whether the bank actually knows of the wife’s equity (actual notice) or would have discovered it by taking reasonable steps (constructive notice). the same test is applied to all other relationships of trust and confidence including emotional relationships between cohabitees. however, this formulation has since been interpreted in etridge to mean that a lender will automatically be put on inquiry where a wife stands surety for her husband’s debts. indeed, the lender is put on inquiry in every case where the relationship between surety and the debtor is non-commercial.34 if the wife establishes a prima facie inference of undue influence, the burden then passes to the lender to show that it had taken reasonable steps to satisfy itself that the wife’s consent had been properly obtained. in etridge, the house of lords concluded that a personal meeting with the wife was not the only way a bank could discharge its obligation to bring home to the wife the risks she is running. it was not unreasonable for a lender to prefer that this task should be undertaken by an independent legal adviser. normally, therefore, it will be reasonable for a bank to rely upon the confirmation from a solicitor, acting for the wife, that he has advised her appropriately. 5 unconscionable bargains 5.1 the traditional formulation the classic formulation of this doctrine is to be found in the judgment of kay j in fry v lane:35 “the result of the decisions is that where a purchase is made from a poor and ignorant man at a considerable undervalue, the vendor 33 [1993] 4 all er 417 (hl). 34 ibid [87]. 35 (1888) 40 ch d 312, 322. the denning law journal 125 having no independent advice, a court of equity will set aside the transaction ... the circumstances of poverty and ignorance of the vendor, and the absence of independent, throw upon the purchaser, when the transaction is impeached, the onus of proving ... that the purchase was 'fair, just and reasonable’”. it has been held that the modern equivalent of “poor and ignorant” is “a member of the lower income group ... less highly educated.”36 this broadening of the class of claimant eligible for relief has increased considerably the potential availability of the doctrine to a wider range of transactions where the terms are unconscionable and the victim did not receive independent legal advice. in boustany v piggot,37 for example, the privy council was asked to consider whether, on the facts, a lease should be set aside on the grounds that it was an unconscionable bargain. in the course of his speech, lord templeman expressed “general agreement” with the following propositions of law: it is not sufficient to attract equity’s jurisdiction to prove merely that a bargain is hard, unreasonable or foolish. it must be shown to be unconscionable in the sense that “one of the parties to it has imposed the objectionable terms in a morally reprehensible manner, that is to say, in a way which affects his conscience.”38 the word “unconscionable” relates not only to the terms of the bargain, but also to the behaviour of the stronger party, which must be characterised by some moral culpability or impropriety.39 unequal bargaining power (or objectively unreasonable terms) provides no basis for equitable interference in the absence of unconscientious or extortionate abuse of power. 36 cresswell v potter [1978] 1 wlr 255, 257 (megarry j). see also, backhouse v backhouse [1978] 1 all er 1158 [1165], where a generous interpretation of the phrase “poor and ignorant” was applied to a wife who was not “ignorant” but an “intelligent woman” and “certainly not wealthy”. the wife, however, was “ignorant” in the context of property transactions generally and, in particular, the execution of a conveyancing document. 37 (1995) 69 p & cr 298 (pc). see n bamforth, ‘unconscionability as a vitiating factor’ [1995] lmclq 538, who considers the decision in boustany at some length. 38 multiservice bookbinding ltd v marden [1979] ch 84, 110 (brownewilkinson j). 39 see alec lobb (garages) ltd v total oil (great britain) ltd [1983] 1 wlr 87, 94-95 (millett qc) (sitting as a deputy high court judge). undue influence: towards a unifying concept of unconscionablity? 126 a contract cannot be set aside in equity as an unconscionable bargain against a party who is innocent of actual or constructive fraud. even if the terms of the contract are unfair in the sense that they are more favourable to one party than the other (i.e., contractual imbalance), equity will not provide relief unless the purchaser is guilty of unconscionable conduct.40 it is necessary for the claimant who seeks relief to establish unconscionable conduct, namely, that “unconscientious advantage has been taken of his disabling condition or circumstances.”41 in fineland investments ltd v pritchard, 42 mr alison foster qc reiterated that a court will have little or no sympathy for a complainant who seeks to overturn a transaction merely on the grounds that it is a foolish bargain which has caused distress and subsequent regret. in the words of the deputy judge:43 “ ... equity will not relieve a party from a contract on the ground only that there is contractual imbalance not amounting to unconscionable dealing; the court of equity requires ‘undertones of constructive fraud’ for the court to consider rescinding a contract otherwise properly made.” in this case, there was no suggestion that the transactions were necessarily oppressive in overall terms. on the issue of bargaining weakness, whilst it was apparent that the defendant was “not a lady of means”, the deputy judge was not prepared to accept that she was under any misapprehension as to the documentation she signed. she had asked “astute questions” and these were fully investigated and answered before she was required to sign. there was also, on the evidence, nothing unconscionable about the company’s behaviour towards her. although she was uncertain as to what she wanted to do (which caused her stress) and she later had regrets about entering into the transaction, this did not amount to oppressive behaviour on the part of the company. a bargain which was merely hard or improvident (which, in any event, was not the case here) was not in itself enough to trigger the doctrine. although the defendant relied heavily on the boustany decision, that case was clearly 40 see hart v o’connor [1985] ac 1000 (pc) 1017 (lord brightman). 41 commercial bank of australia ltd v amadio (1983) 151 clr 447 (mason j) (high court of australia). 42 [2011] ewhc 113 (ch). see also, minder music ltd v sharples [2015] ewhc 1454 (ipec). 43 ibid [77] the denning law journal 127 distinguishable. unlike fineland, the proposed new lease was obviously disadvantageous to miss pigott since it would itself be renewable at the same (already uncommercial) level of rent for a further 10 year term. in addition, it was apparent that the complainant in boustany had been largely duped into entering into the new lease without any proper legal advice and unaware of the true market rental value of the premises. in this connection, it was significant that the new lease had been executed in the absence of miss pigott’s cousin who would normally have acted on her behalf in relation to her properties. the inference here was that mrs boustany and her husband had prevailed upon miss pigott to execute a new lease which they knew her agent would never have agreed. 5.2 interrelationship between unconscionable bargains and undue influence significantly, several english cases have alluded to the interrelationship between the two doctrines of unconscionable bargains and undue influence. in credit lyonnais bank nederland nv v burch,44 a case involving a claim of undue influence brought by a junior employee against her employer, both nourse and millett ljj suggested that the claimant might have brought an alternative claim directly against the bank to set aside the charge on the grounds of unconscionability. the transaction was manifestly disadvantageous to her and the bank had not explained the potential extent of her liability, nor had she received independent advice. nourse lj, whilst accepting that the case was not pleaded on the basis of an unconscionable bargain, nevertheless stated that “the unconscionability of the transaction remains of direct materiality to the case based on undue influence.” 45 indeed, in his view, the transaction was “so harsh and unconscionable as to make it hardly necessary for a court of equity to rely on [barclays bank plc v o’brien]46 as a basis for avoiding the transaction”.47 millett lj also alluded to the similarities between the two doctrines and concluded that, if the claimant had sought to have the transaction set aside as a harsh and unconscionable bargain, she would have to show “not only that the terms of the transaction were harsh and oppressive, but that one of the parties to it has imposed the objectionable terms in a morally reprehensible manner, that 44 [1997] 1 all er 144 (ca). 45 ibid 151. 46 [1993] 4 all er 417 (hl). 47 [1997] 1 all er 144 (ca) 146. undue influence: towards a unifying concept of unconscionablity? 128 is to say, in a way which affects his conscience.”48 the recognition in burch that the o’brien principle is an application of unconscionability has prompted several academic writers to suggest that the true basis of the decision was not the absence of the claimant’s real consent (i.e. undue influence) but the unconscionable conduct on the part of the bank in accepting a transaction which was so heavily unbalanced.49 the court of appeal was given a further opportunity to consider the interaction between undue influence and unconscionable bargains in portman building society v dusangh.50 what is particularly interesting in ward lj’s judgment in this case is his open recognition that unconscionable conduct was a vitiating factor, similar to undue influence, and that the doctrine of notice (as explained in o’brien) could apply in this context, so as to bind the lender in the same way as in a case involving undue influence. significantly, his lordship relied on a passage in lord browne-wilkinson’s speech in o’brien51 where he stated that a wife, who has been induced to stand as surety for her husband’s debts “by his undue influence, misrepresentation or some other legal wrong” had an equity as against him to set aside the transaction. in his view, unconscionable conduct was “some other legal wrong” and, therefore, the principle in o’brien on the issue of notice and third parties was equally applicable in cases involving unconscionable bargains. his lordship also cited the following extract from millett lj’s judgment in burch52 where, as noted earlier, the similarities between the two jurisdictions to set aside unconscionable bargains and transactions obtained by undue influence were highlighted: “in either case it is necessary to show that the conscience of the party who seeks to uphold the transaction was affected by notice, actual or constructive, of the impropriety by which it was obtained by the intermediary . . .” 48 ibid 153. 49 see for example, m chen-wishart, ‘the o’brien principle and substantive unfairness’ [1977] clj 60, 63. 50 [2000] 2 all er (comm) 221. 51 [1994] 4 all er 417 (hl) 428. 52 [1997] 1 all er 144 (ca) 153. the denning law journal 129 5.3 does the doctrine apply to gifts? it is not clear whether the doctrine of unconscionable bargains applies to gifts. in langton v langton,53 mr awh charles qc (sitting as a deputy high court judge) set aside a deed of gift procured by actual/presumed undue influence. it was not, therefore, strictly necessary for him to consider a further ground for setting aside the gift, namely, that it constituted an unconscionable bargain. the deputy judge, however, opined that, if the doctrine applied to gifts, it would mean that, in the case of all gifts by poor and ignorant persons without independent legal advice, the onus of proving that the gift was fair, just and reasonable would be placed on the recipient. that, in his view, would be a surprising result. moreover, the formulation of the doctrine as expressed by kay in in fry v lane was limited to purchases of property and the description “fair, just and reasonable” in that case was a phrase that applied to bargains and not gifts. in his judgment, the rationale behind the development of the doctrine of unconscionable bargains was to protect people who were in need of money from being taken advantage of by persons prepared to provide it for an exorbitant consideration. it did not, therefore, apply to gifts which was a different type of disposition and one where the donor was, by definition, not seeking a return. as the deputy judge conceded, however, the doctrine has been applied to an unconscionable transaction which, although described and treated as a bargain, was in effect a gift.54. moreover, the view taken in langton does not accord with commonwealth authority. in wilton v farnworth, 55 the claimant was deaf, poorly educated and dull witted. his stepson persuaded him to sign various documents allowing the former to apply for letters of administration to the claimant’s wife’s estate and releasing his interest therein to him. the high court of australia had no difficulty in setting aside the transaction as an unconscionable dealing. rich j stated:56 “ ... the jurisdiction of courts of equity is based upon unconscientious dealing. it has always been considered unconscientious to retain the advantage of a voluntary disposition 53 [1995] 2 flr 890. 54 see cresswell v potter [1978] 1 wlr 244, 259 (megarry j): “what was done by the release was, in substance, that a gift was made by a wife who was being divorced to the husband who was divorcing her”. 55 (1948) 76 clr 646 (high court of australia). 56 ibid 655. undue influence: towards a unifying concept of unconscionablity? 130 of a large amount of property improvidently made by an alleged donor who did not understand the nature of the transaction and lacked information of material facts such as the nature and extent of the property particularly if made in favour of a done possessing greater information who nevertheless withheld the facts.” similarly, latham cj stated:57 “ ... if a donee is the moving spirit in the transaction of a gift, and the donor is of weak will or of poor mentality, a court of equity will set aside the gift unless it is shown that the donor understood the substance of what he was doing.” the better view, therefore, is that both gifts and bargains are subject to the doctrine of unconscionability.58 more recently, in evans v lloyd,59 hh judge keyser qc (sitting as a judge of the high court), after considering langton, concluded that to exclude gifts from the scope of the doctrine would make its application turn on form over substance which was to be avoided in an equitable jurisdiction.60 he also noted that the doctrine had been applied to gifts without inconvenience in the australian and republic of ireland61 jurisdictions. 5.4 the three governing elements the three key elements of the doctrine of unconscionable bargains may, therefore, be summarised as follows: 57 wilton (n 55) 648. see also, louth v diprose (1993) 67 aljr 95, 97 (high court of australia), where brennan j stated: “gifts obtained by unconscionable conduct and gifts obtained by undue influence are set aside by equity on substantially the same basis.” 58 see further, d capper, ‘unconscionable bargains and unconscionable gifts’ [1996] conv 308. in capper’s view, gifts do not provide any distinction between undue influence and unconscionability. indeed, it supports his premise that contractual imbalance provides merely an evidential function under both doctrines. in this connection, it has been held that the requirement of manifest disadvantage is not necessary for gifts: geffen v goodman estate [1991] 2 scr 353, 378 (wilson j). this must be right since otherwise it would be difficult to uphold gifts (which, by their very nature, are one-sided) under either doctrine. 59 [2013] ewhc 1725 (ch). 60 ibid [52]. 61 see prendergast v joyce [2009] iehc 199. the denning law journal 131  contractual imbalance (i.e. the bargain itself must be oppressive)  relational inequality (i.e. the complainant was in a position of bargaining weakness)  unconscionable conduct (i.e. the other party must have knowingly taken advantage of the complainant) so far as contractual imbalance is concerned, the cases show that the complainant must have entered into a transaction which was substantively unfair, in that he received nothing or very little in return. in other words, the terms of the transaction are so unfair that they shock the conscience of the court. in burch, for example, the crucial factor in the court of appeal’s decision was the extreme substantive unfairness of the transaction which gave rise to “grave suspicion” and cried “aloud for an explanation”.62 the second element (relational inequality) requires that the complainant be in some position of weakness (or special disadvantage) in relation to the other party. as we have seen, the phrase “ignorant and poor” in this context has been defined in the modern cases to mean someone who is not well educated and in a lower income group. in alec lobb ltd v total oil (great britain) ltd, 63 peter millett qc (sitting as a deputy high court judge) stated 64 that the doctrine was capable of applying “if one party has been at a serious disadvantage to the other, whether through poverty, or ignorance, or lack of advice, or otherwise, so that circumstances existed of which unfair advantage could be taken”. it is apparent, for example, that inability to speak english, if taken advantage of, may come within the doctrine.65 the third element of the doctrine (unconscionable conduct) is also crucial to the granting of relief. in hart v o’connor, 66 lord brightman identified two distinct meanings of unfairness in the context of a contractual transaction. first, a contract may be unfair because of the unfair manner in which it is brought into existence. a contract induced by undue influence is unfair in this sense (i.e. procedural unfairness). alternatively, a contract may be described as unfair by reason of the fact that the terms of the contract are more favourable to one party than to the other (i.e. contractual imbalance). according to his lordship, both procedural unfairness and contractual 62 ibid 152 (millett lj). 63 [1983] 1 wlr 87. 64 ibid 94-95. 65 see, barclays bank plc v schwartz (1995) the times, 2 august. 66 [1985] ac 1000 (pc). undue influence: towards a unifying concept of unconscionablity? 132 imbalance were necessary to relieve a party from a transaction. 67 however, he also intimated that contractual imbalance may be so extreme as to raise a presumption of procedural unfairness (for example, undue influence or some other form of victimisation). this is also acknowledged by millett lj in burch, where he suggested that, both in unconscionable bargain and undue influence cases, the court could “infer the presence of impropriety from the terms of the transaction itself”.68 6 the commonwealth experience in the commonwealth jurisdictions, the courts have tended to accept a more general doctrine of unconscionability. it will be convenient to examine briefly the position in canada, australia and new zealand. unlike the english courts, these jurisdictions have been far more open to the notion that a transaction can be unconscionable because the terms are considerably more advantageous to the stronger party who passively receives those advantages in the knowledge that the other (weaker) party is vulnerable.69 as we have seen, under english law, unconscionability normally requires that the stronger party has imposed the objectionable terms in a morally reprehensible manner,70 although the courts have also acknowledged that a contract may be so unfair (or one-sided) as to raise a presumption of procedural unfairness. 6.1 canada an early leading authority is morrison v coast finance ltd,71 which, interestingly, was cited by lord denning mr in bundy72 as illustrative of his proposition that the doctrine of unconscionable transactions extends to “all cases where an unfair advantage has been gained by an 67 ibid 1018. 68 [1997] 1 all er 144 (ca) 153. see also, portman building society v dusangh [2000] 2 all er (comm) 221 (ca) 235, where ward lj refers to “an evidential assumption of wrongdoing” if the transaction itself cries out for an explanation. 69 see, d capper, ‘the unconscionable bargain in the common law world’ (2010) 126 lqr 403, 416. 70 see for example, multiservice bookbinding ltd v marden [1979] ch 84, 110 (browne-wilkinson). 71(1965) 55 dlr (2d) 710. for an overview, see halsbury’s laws of canada, restitution, 2017 reissue, (lexisnexis) 976-981. 72 [1974] 3 all er 757 (ca) 764. the denning law journal 133 unconscientious use of power by a stronger party against a weaker”. in morrison, an elderly widow with slender means was persuaded by two men to mortgage her home and lend the proceeds to them so that they could repay a loan to the first defendant lender and buy two cars from the second defendant. the british columbia court of appeal held that the transaction was unconscionable and granted relief. the case is significant in that it sets out the material ingredients for a successful claim to set aside a contract on the ground of unconscionability. the two vital elements were: (1) proof of inequality in the positions of the parties arising out of ignorance, need or distress of the weaker, leaving him (or her) in the power of the stronger party; and (2) proof of substantial unfairness of the bargain thus obtained by the stronger party. once these elements were satisfied, a presumption of fraud arose which could only be rebutted by showing that the bargain was fair, just and reasonable with no advantage taken. in the course of his judgment, davey ja stated:73 “the equitable principles relating to undue influence and relief against unconscionable bargains are closely related, but the doctrines are separate and distinct. the finding here against undue influence does not conclude the question whether the appellant is entitled to relief against an unconscionable transaction.” in his honour's view, 74 a plea of undue influence attacked “the sufficiency of consent” whilst the doctrine of unconscionable bargains invoked “relief against an unfair advantage gained by an unconscientious use of power by a stronger party against a weaker”. despite this initial reluctance to assimilate the two doctrines under one umbrella of unconscionability, it is significant that, since the english decision in bundy, the canadian courts have adopted the broader formulation of “inequality of bargaining power” enunciated by lord denning mr in that case as part of their law. in mckenzie v bank of montreal,75 for example, the ontario high court, applying bundy, held that a bank, who had knowledge that the claimant had been acting under the undue influence of her partner, owed a duty of care to her to ensure that she appreciated and intended the consequences of the transaction. 73 ibid 713. 74 ibid. 75 (1975) 55 dlr (3d) 641. see also, buchanan v canadian imperial bank of commerce (1979) 100 dlr (3d) 624 (british columbia supreme court); bertolo v bank of montreal (1986) 33 dlr (4d) 610 (ontario court of appeal). undue influence: towards a unifying concept of unconscionablity? 134 this meant providing the claimant with the necessary information and advice, or to see that she had obtained it. since the bank had failed in that duty, the mortgage was set aside. indeed, some of the canadian cases have gone further. most notably, in harry v kreutziger,76 another decision of the british columbia court of appeal, lambert ja propounded a broader test of unconscionability based on “community standards of commercial morality”. he stated:77 “in my opinion, questions as to whether use of power was unconscionable, an advantage unfair or very unfair, a consideration was grossly inadequate, or bargaining power was grievously impaired, to select words from both statements of principle, the morrison case and the bundy case, are really aspects of one single question. that single question is whether the transaction, seen as a whole, is sufficiently divergent from community standards of commercial morality that it should be rescinded. to my mind, the framing of the question in that way prevents the real issue from being obscured by an isolated consideration of a number of questions ...” in this case, the appellant, an elderly, inarticulate indian man with limited education, who was also partially deaf, agreed to sell his fishing boat for $4,500. in fact, the boat was worth $16,000, largely because of a fishing licence attached to it. the buyer, a man of great business experience and with full knowledge of the true value of the boat, induced the sale by assuring the appellant that he could easily obtain another licence. not surprisingly, the sale was set aside as an unconscionable bargain. the circumstances of the transaction revealed a “marked departure” from community standards of commercial morality. significantly, this test has been applied in several subsequent canadian authorities.78 76 (1978) 95 dlr (3d) 231. 77 ibid 241. 78 see for example, a&k lick-a-chick franchises ltd v cordiv enterprises ltd (1981) 119 dlr (3d) 44 (nova scotia supreme court). for a full review of the cases, see sr enman, ‘doctrines of unconscionability in canadian, english and commonwealth contract law’ (1987) 16 anglo-american law review 191. the denning law journal 135 a more traditional formulation of the doctrine, however, was applied in cain v clarica life insurance co, 79 where cote j outlined the following key elements as necessary to found relief: “1. a grossly unfair and improvident transaction; and 2. the victim's lack of independent legal or other suitable advice; and 3. an overwhelming imbalance in bargaining power caused by the victim's ignorance of business, illiteracy, ignorance of the language of the bargain, blindness, deafness, senility, or similar disability; and 4. the other party's knowingly taking advantage of this.” 6.2 australia there are several landmark cases in the australian jurisdiction which call for comment. in blomley v ryan,80 an uneducated farmer, 78 years old, who was mentally and physically weak, suffering from the effects of intoxication, conveyed his farm to the purchaser who knew of his disabilities and the inadequacy of the price. the transaction was held to be unconscionable and the contract was set aside. mctiernan j stated81 that “the essence of the fraud” was that “advantage was taken of weakness, ignorance and other disabilities ... and the contract was derived from such behaviour and it is an unfair bargain.” in his view, the principle extended to “all cases in which the parties to a contract have not met upon equal terms.” 82 fullagar j identified some of the circumstances adversely affecting a party which may induce the court to set aside the transaction. among these, he listed “poverty or need of any kind, sickness, age, sex, infirmity of the body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary”.83 in his view, the common characteristic was that they placed one party at a serious disadvantage to the other. 79 (2005) 263 dlr (4th) 368 (alberta court of appeal) [31]-[32]. these elements were applied in lydian properties inc v chambers (2009) 457 ar 211 (alberta court of appeal). 80 (1956) 99 clr 362 (high court of australia). 81 ibid [386]. 82 ibid. 83 bromley (n 80) ibid 405. undue influence: towards a unifying concept of unconscionablity? 136 another landmark decision is commonwealth bank of australia v amadio, 84 where mason j concluded that the jurisdiction to set aside transactions as unconscionable arose “whenever one party by reason of some condition or circumstance is placed at a special disadvantage vis a vis another and unfair or unconscientious advantage is then taken of the opportunity thereby created.” 85 thus, as under english law, three requirements were necessary to raise the equity: (1) an improvident arrangement; (2) inequality of bargaining power; and (3) an unconscientious taking of advantage of the party under a special disability. interestingly, mason j also considered86 that, whilst there was “some resemblance” between unconscionable conduct and undue influence, an important distinction was that: “in the latter, the will of the innocent party is not independent and voluntary because it is overborne. in the former, the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconscientiously taking advantage of that position.” he acknowledged, however, that the two doctrines were not mutually exclusive in the sense that only one of them could be available in a particular situation to the exclusion of the other. in his view:87 “relief on the ground of unconscionable conduct will be granted when unconscientious advantage is taken of an innocent party whose will is overborne so that it is not independent and voluntary, just as it will be granted when such advantage is taken of an innocent party who, though not deprived of an independent and voluntary will, is unable to make a worthwhile judgment as to what is in his best interest.” a similar conclusion was reached by deane j, who considered that the equitable principles relating to unconscionable dealing and undue influence were “closely related” but, nonetheless, “distinct”.88 in his view, 84 (1983) 151 clr 447 (high court of australia). 85 ibid 462. 86 amadio (n 84) 461. 87 ibid. 88 amadio (n 84) 474. see, generally, halsbury’s laws of australia vol 6 para 110-5885: “unlike undue influence, which like common law duress, looks to the the denning law journal 137 undue influence looks to the quality of the consent of the weaker party whereas unconscionable dealing looks to the conduct of the stronger party “in attempting to enforce, or retain the benefit of, a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so”.89 it is submitted, however, that these distinctions are somewhat illusory. the doctrine of undue influence does, in fact, involve the wrongdoer in taking unconscientious advantage of an innocent party who is in a disadvantageous position. as phang has stated,90 “under class 1 and class 2b undue influence, it may be stated that the innocent party is often manipulated into a situation of disadvantage”. and, as one australian commentator has observed:91 “the parallels between presumed unconscionable conduct (contracting in the knowledge that the other party labours under a special disadvantage) and presumed undue influence (contracting in the knowledge that the other party reposes trust and confidence in one in the relevant sense) are significant. both doctrines require sufficient awareness or perception on the part of the stronger party and, it is suggested, the tests for sufficient awareness should be the same in both cases. both doctrines impose a similar duty: to ensure that the weaker party has formed an independent and informed judgment; this duty may be discharged by allowing the weaker party an opportunity to seek independent legal advice ... and, most importantly, both doctrines are designed to mitigate the risk of abuse by the stronger party of his position of special advantage. abuse of a perceived position of special advantage is the thread that links these two equitable doctrines.” quality of the consent or assent of the weaker party, unconscionable dealing looks to the conduct of the stronger party in attempting to force, or retain the benefit of, a dealing with a person under a special disability or disadvantage in circumstances where it is not consistent with equity or good conscience that he or she should do so. on this basis, the jurisdiction in relation to unconscionable conduct is distinct from the jurisdiction in relation to undue influence, where the essential focus is on the position of the plaintiff rather than the conduct of the defendant.” 89 amido (n 84) [474]. 90 see a phang, ‘undue influence: methodology, sources and linkages’ [1995] jbl 552, 568. 91 see ij hardingham, ‘the high court of australia and unconscionable dealing’ (1984) 4 ojls 275, 286. undue influence: towards a unifying concept of unconscionablity? 138 this, of course, reflects the view taken by lord denning mr in bundy 92 and his formulation of a general principle linking undue influence, unconscionable transactions (and other vitiating factors) under the “single thread” of inequality of bargaining power. in amadio, the facts did not warrant any finding that the bank was in a confidential relationship with the parents since the latter relied on their son, not the bank, to advise them on the nature of the loan transaction. had, however, the bank “crossed the line” into the area of confidentiality then, clearly, issues relating to a presumed undue influence would have arisen for consideration. in another important decision, the high court of australia sought to apply the concept of unconscionability to a situation where a surety wife did not understand the purpose and effect of the guarantee she signed and there was a failure by the bank to explain properly the transaction to her. in national australia bank ltd v garcia,93 the majority of the high court, applying the earlier case of yerkey v jones,94 held that the lender had acted unconscionably in enforcing the guarantee against the wife because: (1) she did not understand the purpose and effect of the transaction; (2) she was a volunteer because she did not obtain any benefit from the transaction; (3) the lender was taken to have understood that, as a wife, she may have reposed trust and confidence in her husband in business matters and, therefore, to have understood that the husband may not have fully and accurately explained the effect of the transaction to her; and (4) the lender took no steps to explain the purport and effect of the transaction to her or to ascertain whether it had been explained to her by a competent, independent and disinterested stranger. the significance of this case is that the high court rejected the english o’brien approach (grounded in the notion of notice) in favour of a (revived) wife’s “special equity” doctrine, which allowed her to set aside a guarantee on the grounds that she did not understand it and that its nature and effect had not been explained to her. this equity, however, was based, not on the status and abilities of married women, but rather (as in etridge) the potential for abuse of trust within the marriage relationship. the element of notice, therefore, was only relevant in determining whether or not the lender knew, at the time of the guarantee, that the surety was married to the borrower. in effect, the decision in garcia imposed a strict (primary) liability on lenders to disclose full and accurate information to wives who 92 [1974] 3 all er 757 (ca) 765. 93 (1998) 194 clr 395. 94 (1939) 63 clr 649. the denning law journal 139 act as sureties for their husband’s debts. the high court also intimated that equity’s special protection could extend to other relationships (for example, heterosexual or homosexual cohabitees).95 finally, reference should be made to louth v diprose,96 where the majority of the high court of australia held that the respondent was entitled to recover a substantial gift of money which he had made to a woman (the appellant) with whom he had had a romantic relationship for several years. in fact, the respondent, had been infatuated with the appellant and it was apparent that the latter had exploited his emotional dependence on her. when she needed a place to live, he bought a house for her and had it conveyed into her sole name. the judgment of brennan j is of particular interest because he sought to assimilate the court’s jurisdiction to set aside gifts procured by unconscionable conduct with the “similar” jurisdiction to set aside gifts procured by undue influence. in his view,97 both depended upon the effect of influence (presumed or actual) improperly brought to bear by one party to a relationship on the mind of the other whereby the other disposes of his property. this similarity “gives to cases arising in the exercise of one jurisdiction an analogous character in considering cases involving the same points in the other jurisdiction.” the effect of this judgment is substantially to merge the concept of unconscionability with that of undue influence. 6.3 new zealand in archer v cutler,98 a contract for the sale of 10 acres of land was executed by the parties at the defendant’s residence. medical evidence later showed that the defendant was suffering from senile dementia. although living alone, she was incapable of managing her own affairs and unable to keep proper appraisals of facts and conscious judgments on important matters. the claimant did not know of the defendant’s impaired mental condition, nor of its effect on her ability to understand the bargain 95 see further, m bryan, ‘setting aside guarantees: reviving and old equity’ [1999] lmclq 327; m brown, ‘suretyship and marriage: notice v unconscionability’ (2000) rlr 152; e stone, ‘infants, lunatics and married women: equitable protection in garcia v national australia bank’ (1999) 62 mlr 604; a finlay, ‘australian wives are special: yerkey v jones lives on’ [1999] jbl 361. 96 (1993) 67 aljr 95. 97 ibid 98. 98 [1980] 1 nzlr 386 (supreme court of auckland). undue influence: towards a unifying concept of unconscionablity? 140 she had entered into. the claimant was also unaware that the agreed price represented a substantial undervalue for the land. the supreme court of auckland held, nevertheless, that the defence of unconscionable bargain was established. the decision clearly went further than the english and australian authorities, which require that the stronger party actually take advantage of his position. not surprisingly, therefore, in hart v o’connor,99 the privy council (on appeal from the new zealand court of appeal) held, overruling the archer case, that a contract could not be set aside as an unconscionable bargain where the purchaser had acted completely innocently and was not guilty of any unconscionable conduct. subsequent new zealand cases have adopted this approach, albeit with some reluctance. in nichols v jessup (no 2), 100 the claimant sought specific performance of an agreement between himself and the defendant to grant mutual rights of way over their respective properties so as to improve the road access to the claimant’s rear section. the high court held, ostensibly applying the hart v o’connor ruling, that because the claimant was aware of the defendant’s weaknesses in regard to financial and property matters, which was manifestly one-sided, the agreement could properly be set aside as unconscionable. significantly, as the high court itself conceded, there was no evidence in this case to suggest that the claimant had consciously intended to take advantage of the defendant’s ignorance when she was persuaded to agree to his proposal regarding the rights of way. in the absence of any moral fraud, therefore, it has been suggested by one commentator101 that the transaction should have been upheld. in contractors bonding ltd v snee,102 the wellington court of appeal also applied hart v o’connor, holding that equity will only intervene to deprive parties of their contractual rights where they have unconscionably obtained benefits or have accepted benefits in unconscionable circumstances (i.e. where they would be acting unconscientiously in receiving or retaining their bargain). in this case, the complainant was under a special disability at the time of contracting due to her mental capacity resulting in a defective understanding of her affairs and of the transaction. that, however, in itself, was not enough to establish that the company was guilty of fraud. it had no knowledge of, and could not be 99 [1985] ac 1000 (pc). 100 [1986] 1 nzlr 237 (high court of auckland). 101 see further, n bamforth, ‘unconscionability as a vitiating factor’ [1995] lmclq 538. 102 [1992] 2 nzlr 157 (wellington court of appeal). the denning law journal 141 expected to have any awareness of, her incapacity and, moreover, had no reason to believe that she was under the influence of her son. in addition, the guarantee and mortgage over her house were standard commercial transactions with no unusual features which the company was required to disclose to the complainant. the transaction, therefore, could not be characterised as improvident (amounting to contractual imbalance) nor was there any evidence of unfairness or overreaching on the part of the company. the result, therefore, was that the company could rely on its mortgage. interestingly, in walmsley v christchurch city council, 103 hardie boys j opined that the concepts of undue influence and unconscionability were “different concepts, although both are founded on fraud, in the sense of an unconscionable use of power”. in bowkett v action finance ltd,104tipping j set out the following circumstances which, in his view, would normally be present when a court finds an unconscionable bargain: (1) the weaker party is under a considerable disability; (2) the stronger party knows or ought to know of that disability; (3) the stronger party has victimised the weaker in the sense of taking advantage of the weaker party’s disability, either by active extortion of the bargain, or passive acceptance of it in circumstances where it is contrary to conscience that the bargain should be accepted; (4) there is a marked inadequacy of consideration and the stronger party either knows or ought to know that to be so: and (5) there is some procedural impropriety either demonstrated or presumed from the circumstances. in tipping j’s view,105 not all elements need necessarily be shown, but elements 1-3 were crucial, as there could not be an unconscionable bargain without a disability in the weaker party and knowledge and taking advantage thereof by the stronger party. he also intimated that absence of independent advice was a frequent feature of unconscionable bargain cases. what was important, however, was the “cumulative weight of all relevant points” in determining “the ultimate question” as to whether the bargain could properly be characterised as unconscionable so that equity should intervene. tipping j had a further opportunity to formulate the relevant principles in gustav & co ltd v macfield ltd,106 where he stated:107 103 [1990] 1 nzlr 199 (christchurch high court). 104 [1992] 1 nzlr 449 (christchurch high court). 105 ibid 460. 106 [2008] nzsc 47 (supreme court of new zealand). 107 ibid [6]. see also, generally, the laws of new zealand, vol 26, specific performance, p 22, para 16, (butterworths); service 87, at 660.002, (lexisnexis). undue influence: towards a unifying concept of unconscionablity? 142 “equity will intervene when one party in entering into a transaction, unconscientiously takes advantage of the other. that will be so when the stronger party knows or ought to be aware, that the weaker party is unable adequately to look after his own interests and is acting to his detriment. equity will not allow the stronger party to procure or accept a transaction in these circumstances. the remedy is conscience-based and, in qualifying cases, the court intervenes and says that the stronger party may not take advantage of the rights acquired under the transaction because it would be contrary to good conscience to do so.” as capper 108 has observed, “the approach to the unconscionable bargain in new zealand is practically indistinguishable from the approach in australia.” 7 an underlying concept of unconscionability? undoubtedly, there is a close relationship between the principles relating to undue influence and unconscionable bargains. should the two be fused within one all-embracing doctrine? academic commentators differ on whether this would be a useful process. capper, in an influential article,109 has argued that the two doctrines share three common features: (1) inequality in the bargaining positions of the parties (i.e., relational inequality): (2) transactional imbalance; and (3) unconscionable conduct on the part of the defendant. he acknowledges, however, that these features are mere “distillations from the cases, rather than judicially determined principles.110 so far as the first element is concerned, this is present in presumed undue influence cases, in so far as the complainant must prove the existence of a relationship under which he (or she) generally reposed trust and confidence in the wrongdoer. relational inequality is always present (by definition) in actual undue influence cases. and, as we have seen, the requirement is also to be found in unconscionability cases in that the 108 see d capper, ‘the unconscionable bargain in the common law world’ (2010) 126 lqr 403. 109 see d capper, ‘undue influence and unconscionability: a rationalisation’ (1998) 114 lqr 479. 110 see d capper, ‘the unconscionable bargain in the common law world’ (2010) 126 lqr 403, 417. the denning law journal 143 complainant must be shown to be suffering from some special disadvantage to warrant equity's intervention. capper concludes that “the kind of relational inequality sufficient to support a case of unconscionability is clearly very broad and there cannot be any difficulty in fitting cases of undue influence within it.”111 turning to transactional imbalance, capper concedes that this requirement does not feature in the actual undue influence category, which requires mere proof of actual coercion over the weaker party. his argument, however, is that transactional imbalance (i.e. the bargain itself must be oppressive) is not an essential requirement of any undue influence or unconscionability case (albeit invariably present), but simply “powerful evidence in support of relational inequality and unconscionable conduct, which are the true invalidating grounds.”112 on this point, he (like other commentators) doubts whether manifest disadvantage should be an essential feature of the presumed undue influence category. the better view, as we have seen, is that manifest disadvantage should take the form of a purely evidential consideration when the wrongdoer is seeking to rebut the presumption of undue influence. in other words, there is no reason why a complainant should not rely on the doctrine even though the transaction itself is objectively reasonable. take, for example, a solicitor who buys his client's house at a fair price. the requisite relationship of confidence would exist between the parties (i.e. relational inequality) and there seems no reason why the presumption of undue influence should not arise requiring the solicitor to show that the client had formed an independent and informed judgment. the mere fact that the price was fair would not be enough to rebut the presumption because “there might be all sorts of reasons, apart from the price, why the client did not want to sell his house.”113 transactional imbalance, according to capper, is also not an essential precondition to a finding of unconscionability. although many of the cases do involve sales at an undervalue and other forms of contractual imbalance, this is not always the case.114 he concludes that “if 111 ibid 486. 112 ibid. 113national westminster bank plc v morgan [1983] 3 all er 85 (ca) (dunn lj). 114 he cites, for example, the australian case of blomley v ryan (1956) 99 clr 362, where the high court of australia held that the decisive factors of unconscionability were the seller's mental weakness and the purchaser's unconscionable conduct. in that case, the property was sold for $25,000, its true value being not significantly more ($33,000). capper also cites deane j, in commonwealth bank of australia v amadio (1983) 151 clr 447, 475, who undue influence: towards a unifying concept of unconscionablity? 144 manifest disadvantage assumes the evidential role recommended for it in respect of presumed undue influence, then assimilation with actual undue influence and unconscionability becomes relatively easy.”115 finally, so far as unconscionable conduct is concerned, this, according to capper, is a requirement of both doctrines. it is clearly evident in actual undue influence cases and is an essential feature of unconscionability cases. in his view, “actual undue influence (without pressure) is only different from presumed undue influence in so far as what is presumed in the latter is affirmatively proved in the former.”116 on this reasoning, therefore, both actual and presumed undue influence should be subsumed under a general doctrine of unconscionability. although, in the presumed undue influence category, coercion and abuse by the defendant is less easy to discern, nevertheless, many of the cases on unconscionable dealing, as we have seen, also concern little more than passive acceptance of benefits received under unconscionable circumstances.117 not all commentators, however, have agreed with this attempt at rationalisation. birks and chin,118 for example, have argued that undue influence and unconscionability are essentially separate and distinct concepts and favour preserving the distinction between the two. they regard undue influence as being “plaintiff-sided” and concerned with the weakness of the claimant's consent owing to an excessive dependence upon the defendant, and unconscionability as being “defendant-sided” and concerned with the defendant's exploitation of the claimant’s vulnerability. in support of this contention, they draw attention to two features of the presumed undue influence cases. first, many of the presumed undue influence cases do not involve any conscious wrongdoing on the part of the defendant  on the contrary, the evidence shows merely a passive receipt of benefits arising from the transaction. opined that, whilst most unconscionability cases involved inadequacy of consideration, this was not essential. 115 d capper, ‘undue influence and unconscionability: a rationalisation’ (1998) 114 lqr 479, 500. 116 ibid 493. 117 see for example, hart v o'connor [1985] ac 1000 (pc) 1024 (lord brightman): “... it is victimisation, which can consist either of the active extortion of a benefit or the passive acceptance of a benefit in unconscionable circumstances.” 118 see p birks and ny chin, ‘on the nature of undue influence’ in j beatson and d friedmann (eds), good faith and fault in contract law (clarendon press 1995); j devenney and a chandler, ‘unconscionability and the taxonomy of undue influence’ [2007] jbl 541. the denning law journal 145 secondly, where the presumption of undue influence is raised, it is open to the defendant to rebut the presumption by showing that the complainant had acted freely and with an independent will. this requirement, therefore, is directed at the issue of consent and is not concerned with any wrongdoing on the part of the defendant. some writers, however, have questioned this analysis. thus, bigwood 119 has argued that undue influence is defendant/conduct-based in both its concerns and orientation. in his view, both undue influence and unconscionable dealings concern a form of exploitation, although the source of the claimant's vulnerability is different in each case. despite this difference between the two concepts, he concludes that “there is no logical reason” why the jurisdiction of unconscionable dealings could not include undue influence. what is also overlooked, it is submitted, in birks and chin's analysis, is that the passive acceptance of benefits, as we have seen from the commonwealth experience, may itself be unconscionable in the circumstances of a particular case. 120 it does not necessarily have to involve wicked exploitation. as capper has pointed out, many of the unconscionability cases have this common feature and, therefore, there seems little reason why undue influence and unconscionability should not be assimilated. any such new (combined) doctrine would not be either specifically “plaintiff-sided” or specifically “defendant-sided” (as birks and chin) maintain because “the stronger the plaintiff-sided the weaker the defendant-sided factor needs to be and vice versa, although a degree of unconscionable conduct would be present in all cases since the passive receipt of benefits flowing under a seriously unbalanced transaction where the plaintiff was clearly in an unequal relationship with the defendant would count as unconscionable conduct.”121 this unifying doctrine of unconscionability could also be extended to embrace the liability of a third party lender in circumstances where it has actual or constructive notice that the loan transaction is tainted with undue influence, misrepresentation or some other equitable wrong. thus, in 119 see r bigwood, ‘undue influence: impaired consent or wicked exploitation’ (1996) 16 ojls 503. 120 see j devenney and a chandler, ‘unconscionability and the taxonomy of undue influence’ [2007] jbl 541. 121 d capper, ‘undue influence and unconscionability: a rationalisation’ (1998) 114 lqr 479, 500. capper also makes the point that, since the house of lords' ruling in royal bank of scotland v etridge (no 2) [2002] ac 773, undue influence is clearly concerned not just with lack of consent but also with the defendant's unconscionable conduct: see, d capper, ‘the unconscionable bargain in the common law world’ (2010) 126 lqr 403, 417-418. undue influence: towards a unifying concept of unconscionablity? 146 australia, as we have seen, if a lender has the requisite degree of knowledge of an unconscionable transaction (for example, between a husband and wife), it will itself be treated as acting unconscionably in relying on the transaction. a good illustration is also to be found from the canadian jurisdiction in shoppers trust co v dynamic homes ltd. 122 here, the husband obtained a large loan from the claimant which was secured by a mortgage over the family home, which was owned solely by the wife. the husband had persuaded her to sign the documents at the offices of a solicitor who was acting for both the claimant and the third party. the wife was illiterate, had virtually no knowledge of her husband's business affairs and was fearful of her husband. the solicitor did not tell her that there was no legal requirement for her to sign, what the consequences of her signing would be, or that she should obtain independent advice. the ontario court held that there was a fiduciary relationship between the solicitor and the wife, which obliged the former to ensure that the wife fully understood the nature and consequences of her actions and to advise her to seek independent advice. the transaction was unconscionable because it was improvident (the wife received no benefit under the mortgage) and also because the husband (and the solicitor) had taken advantage of their dominant position over the wife. significantly also, it was unconscionable to permit the claimant (as lender) to take advantage of the mortgage in the absence of proper independent advice. although admittedly such an approach still depends on notice (and, therefore, broadly similar to the test enunciated by the house of lords in barclays bank v o'brien),123 “it focuses more directly upon the unconscionable conduct of the bank instead of the indirect test of notice of the undue influence of a third party”.124 8 conclusion a radical overhaul of the doctrines of undue influence and unconscionable dealings, with a view to providing a single, coherent principle justifying equity's intervention to prevent the exploitation of the vulnerable, is much needed. first, it can be argued that the current division of undue influence into two distinct categories (with the further refinement of the presumed 122 (1993) 96 dlr (4d) 267 (ontario court). 123 [1993] 4 all er 417 (hl). 124 d capper, ‘undue influence and unconscionability: a rationalisation’ (1998) 114 lqr 479, 499. the denning law journal 147 category into class 2a and 2b cases) is unnecessarily technical and complex. the additional element in the presumed undue influence cases (both class 2a and 2b) of the need to show that the transaction was manifestly disadvantageous to the complainant has only added to this complexity and, as we have seen, has been criticised both academically and judicially. a simplified doctrine (which would get rid of these artificial categories) could be achieved, as capper has suggested, by bringing together the common threads of: (1) relational inequality; (2) transactional imbalance; and (3) unconscionable conduct under one unified concept of unconscionable use of power. secondly, the adoption of a universal umbrella of unconscionable conduct has the advantage of affording the courts with a greater degree of flexibility in determining the outcome of a particular case. this was recognised by nourse lj in bank of credit and commerce international (overseas) ltd v akindele, 125 in the context of liability for knowing receipt, where he stated126 that a single test based on unconscionability ought to avoid the difficulties of “definition and allocation to which the previous categorisations [of knowledge] have led”. significantly, his lordship also considered that such a test would make it easier for the courts to give common-sense decisions in the commercial context, in which most knowing receipt claims are made. thirdly, there is much to be said, as we have seen, for aligning undue influence with the related doctrine of unconscionable bargains. the two doctrines have common characteristics and it seems unduly artificial to treat them as distinct and separate claims arising, in many cases, out of the same set of facts. in particular, unconscionable conduct is already clearly evident in actual undue influence cases and is (by definition) an essential feature of unconscionable bargain cases. although, in the presumed undue influence category, coercion and abuse may not always be present, nevertheless, many of the cases on unconscionable dealing also concern (as we have seen) little more than passive acceptance of benefits received under unconscionable circumstances. the resultant confusion has resulted in several cases being characterised as falling under undue influence instead of being treated as cases of unconscionability.127 the degree of overlap between the two doctrines, as well as the potential for confusion 125 [2001] ch 437 (ca). 126 ibid 455. 127 see for example, lloyds bank ltd v bundy [1974] 3 all er 757 (ca). undue influence: towards a unifying concept of unconscionablity? 148 in terms of bringing the appropriate litigation, has prompted moore128 to observe recently: “a single principle which rescinds a contract made by a party exploiting seriously constrained decisional autonomy of the other would unify yet faithfully preserve the rationale and operation of the discrete doctrines of ... undue influence, and unconscionability. recognising it would enhance the law’s coherence, clarify and streamline invalidity claims, and facilitate their consistent adjudication.” fourthly, as noted earlier, the notion of unconscionability could easily be extended to embrace the liability of a third party in circumstances where it has actual or constructive notice that the loan transaction is tainted with an equitable wrong. thus, the requisite degree of knowledge of an unconscionable transaction (for example, between a husband and wife) could itself be treated as acting unconscionably in relying on the transaction. this, it is submitted, would provide a welcome degree of symmetry between say, a wife's right to have a transaction set aside as against her husband on the grounds of her husband's undue influence and the unenforceability of the transaction against a third party bank or other lender who itself had acted unconscionably in relation to the transaction. finally, there is the more general point that an assimilation of undue influence with unconscionable bargains would reflect the growing judicial trend towards accepting unconscionability as a useful unifying tool in modern trust law. as we have seen, the notion of unconscionable dealing as an underlying principle has already been adopted in the context of proprietary estoppel, knowing receipt liability, imperfect transfers of property, joint venture arrangements, secret trusts and mutual wills. the lesson here is that, in each of these contexts, the principle of unconscionability has provided the courts with the opportunity not just to rationalise the underlying nature of liability but, more importantly, to provide a valuable contribution in defining its precise reach and scope. as delany and ryan have concluded:129 128 see m moore, ‘why does lord denning's lead balloon intrigue us still? the prospects of finding a unifying principle for duress, undue influence and unconscionability’ (2018) 134 lqr 257, 284. 129 see h delany and d ryan, ‘unconscionability: a unifying theme in equity’ (2008) conv 401, 436. the denning law journal 149 “in the final analysis, then, it seems fittingly ironic that a unifying theme of the use of the unconscionability principle across a wide spectrum of very different contexts is that this allegedly impenetrable and hopelessly obscure principle should itself emerge as a clarifying force, casting fresh light upon and signalling new directions in equitable relief.” one obvious objection to any such process of amalgamation is the notion that this would lead to considerable uncertainty in our law. the uncertainty argument should not, however, be overstated. as with most other doctrines, a broader notion of unconscionability in the context of undue influence and unconscionable bargains would inevitably lead to the laying down of more specific guidelines for determining its application. at the same time, there would be a more systematic approach to the development of the requisite principles which would avoid the current overlap and confusion arising from two related, but currently distinct doctrines. phang puts the matter succinctly:130 “if, indeed, this approach of amalgamation or consolidation is adopted, the many problems pertaining to linkages both amongst the various categories of undue influence as well as amongst the doctrines of ... undue influence and unconscionability would vanish, and courts could set about the task of focusing their attention on bringing the new doctrine to legal maturity.” capper also has addressed the uncertainty argument cogently:131 “a merged doctrine of undue influence/unconscionable bargain would not, it is submitted, generate further uncertainty than exists already in the common law. on the contrary, by allowing the courts to make a fresh start with conceptually clear principles, a much more functional doctrine could be created by judicial decisions which begin from the same sensible premises.” a good example can be taken from the emerging doctrine of knowing receipt liability. here, recent case law has sought to clarify the degree of 130 see a phang, ‘undue influence: methodology, sources and linkages’ [1995] jbl 552, 571. 131 see d capper, ‘the unconscionable bargain in the common law world’ (2010) 126 lqr 403, 419. undue influence: towards a unifying concept of unconscionablity? 150 fault or culpability necessary to trigger the doctrine. in credit agricole corp and investment bank v papadimitriou,132 lord sumption observed133 that “whether a person claims to be a bona fide purchaser of assets without notice of a prior interest in them, or disputes a claim to make him accountable as a constructive trustee on the footing of knowing receipt, the question of what constitutes notice or knowledge is the same”. thus, a party will be liable for knowing receipt where he should either have appreciated that a proprietary right existed, or have made inquiries or sought advice which would have revealed the probable existence of such a right.134 moreover, inquiries must be made if there is a serious possibility of a third party having such a right, or if the facts are such as to give serious need to question the propriety of the transaction. 135 as one commentator136 has observed, this guidance is not without significance in helping “to resolve some of the uncertainty about when a bank will be liable to account as a knowing recipient and ... contribut[ing] to a better understanding of what is unconscionable in this context”. the point here is that, although the concept of unconscionability may be expressed in fairly broad terms, the courts would exercise the new jurisdiction according to well-defined principles. this, as we have seen, is the approach taken in the commonwealth jurisdictions, where the courts do not administer a general power to set aside transactions simply because, in the eyes of the judiciary, they appear to be harsh or unfair. on the contrary, far from acting in a wholly discretionary function, the courts have formulated specific tests for determining when a transaction should be set aside for unconscionability. there is no reason to suppose that a similar approach would not be adopted in this country. if, however, the english courts are reluctant to undertake what is perceived to be essentially a function of parliament in developing the law, 137 serious thought should be given to rationalising this area of law by means of legislative intervention.138 132 [2015] ukpc 13 (pc). 133 ibid [33]. 134 papadimitriou (n 132) [18] (lord clarke). 135 papadimitriou (n 132) [20] (lord clarke). 136 see r pearce, ‘when must a bank repay stolen funds?’ [2015] conv 521, 528-529. 137 see the observations of lord scarman in national westminster bank plc v morgan [1985] 1 all er 821 (hl) 823. 138 english law has already moved some way to accepting substantive unconscionability in statutory form under the unfair terms in consumer the denning law journal 151 contracts regulations 1999 (formerly 1994). in the united states, a broad doctrine of substantive unconscionability is partly statutory, deriving from article 2-302 of the uniform commercial code, and also common law based in those states where the code does not apply. the uses of power: mrjustice denning and the pensions appeal tribunals patrick polden>}{: introduction the existence of the denning law journal testifies to lord denning's unique importance in re-shaping english law to meet the challenges of the middle decades of the twentieth century. the massive corpus of his collected judgments has been subjected to a detailed and rigorous scholarly scrutiny of a kind not accorded to any other english judge of recent times, and his contribution to constitutional and administrative law in particular, has been analysed searchingly and, in some cases, highly critically. 1 in adition, he has, of course, given us his own retrospective views on many of his most significant judgments in sundry lectures and articles and in the series of volumes beginning with the discipline of law (1979) and extending to the closing chapter (1983).2 in all this literature, one minor but interesting part of his judicial career has received little attention. from january 1946 to october 1948, denning], then a puisne judge in the king's bench division, was the judge nominated to hear appeals from the tribunals set up under the pensions appeal tribunals act 19433 in succession to tucker j. it was his first foray into administrative law and gave him an unusual opportunity to develop and implement his views. the statute made no provision for a further appeal so he was constrained only by the need to respect the decisions of the nominated judges in scotland and northern ireland. in the family story,4 denning recounts his relish for this taste of unfettered judicial creativity, which he used to good effect; for by the time he was elevated to the court of appeal, in october 1948, he had created a framework of controls and guidelines which left his successor with little scope to do more than alter emphases "of the department of law, brunel university. i wish to thank my colleagues mr martin coleman and dr k. j. m. smith for their helpful comments. 1. p. robson and p. watchman (eds.),justice, lord de1l1/ingand the constitution (1981); j. l. jowell and j. p. w. b. mcauslan (eds.),lord dfilning: the judge and lhe law (1984). 2. there is a full list of his writings to 1984 in lord dfilnillg: the judge mid the law, supra n.1. 3. for an outline of denning's career, see r. f. v. heuston, in lord de1l1ling:the judge and lhe law, supra n.1, pp.1-25. 4. (1985), p.165. denning's predecessor, tucker, regretted that there was no further appeal: kemp v. min;sler of pfils;ons (1945-6) 61 t.l.r. 341, at p.343. 97 the denning law journal and refine procedures. only one of his decisions, robertson v. ministry of pensions, 5 has proved to be of sufficient general importance to find its way into the textbooks, but of the earlier decision in starr, nuttall and bourne v. ministry of pensions6 professor palley has written: "many men would think his courageous and humane decision in starr, affecting the welfare of many thousands of ex-servicemen and their families, was a worthwhile achievement of a lifetime".7 it is the purpose of this article to examine in more detail the reported decisions under the act and to elucidate denning's ideas on the proper functioning of administrative tribunals and the role of the judiciary in supervising them. first, however, it is necessary to sketch in the background to the legislation. the background pensions to ex-servicemen and their families for death or disability sustained during service in the armed forces were granted under the terms of successive royal warrants. the unprecedented scale of the casualties in the great war, and their being no longer confined to professional fighting men, made the administration of the warrant a matter of much greater public concern than before. dissatisfaction with the many decisions of the ministry of pensions adverse to claimants was voiced in and out of parliament and eventually the government had to respond by establishing independent appeal tribunals.9 the lord chancellor was made responsible for manning the tribunals, each of which comprised a legally qualified chairman, a doctor and a disabled ex-serviceman. although they allowed more than 20% of appeals from the minister's decisions, the tribunals themselves came under fire, but heavy pressure to introduce a further appeal to a "supreme tribunal" was successfully resisted by the lord chancellor's office. 10 when war again threatened it was apparent to those charged with contingency planning that some similar pensions provision for civilian casualties would be needed. this raised the spectre of a continuing post-war charge on government revenue of wholly unpredictable but potentially enormous dimensions, and a 5. [1949] 1 k.b. 227. the importance of the decision in public law is its extension of estoppel by representation to public authorities. see s.a. de smith, judicial review ofadminslralive action 3rd ed., (1973), p.4 n.4 for speculation on denning's own estimate of its importance. 6. [1946] 1 k.b. 345. 7. lord drnning: the judge and the law, s/lpra n.l, p.365 n.78. 8. comparatively few decisions were reported in the general series of reports, but the semi-official war pension appeals reports contain more than 300 of denning's, as well as a handful by tucker ], almost fifty from scotland and two from northern ireland. 9. war pensions (administrative provisions) act 1919. separate appeal tribunals to determine the assessment of the pension payable were introduced by the war pensions act 1921 and on these a second doctor sat instead of the lawyer. in 1940 nearly 850,000 great war pensions were still being paid. 10. pari. debs. 1922 (5th series) h. ofc., vo1.l51, cols.320-42, 1615-39; pro lco 2/971. see also sir claud schuster's summary in pro lco 2/938: memorandum for lord haldane, 26.1.1924, !t.42-5. about 40 cases in which the tribunals were thought to have erred were dealt with under an unpublicised "arrangement" between the ministry of pensions and the treasury. 98 the uses of power desire to restrict the number of war pensions payable until the total number of potential claims had become clearer may have influenced the government's decision to defer the establishment of both entitlement and assessment tribunals until the war had ended. i i meanwhile, according to the minister of pensions, "the finest court of appeal in the country is available in the house of commons.,,12 this position, though endorsed by the cabinet as late as march 1942,13 was becoming politically untenable; more than 100,000 claims had been rejected and aneurin bevan had complained that the commons order paper was becoming congested by members' attempts to bring individual cases of alleged injustice before the house. i 4 the ploy of appointing as minister of pensions a popular figure, sir walter womersley (described in one debate as "a sort of bluff king hal"),15 giving him as parliamentary under secretaries labour mps with a reputation for championing the working man (successively miss ellen wilkinson and will paling), and setting up an advisory committee which included some of the most vocal critics, appeased the sceptics for a while but they could only repeat the threadbare excuse that too few suitable doctors were available for the tribunals. a rising tide of backbench anger, both over the restrictive entitlement to pensions and the lack of any appeal, finally forced the government's hand after a particularly stormy debate on 23rd march 1943.16 a new, more liberal royal warrant and appeal tribunals were promised. the pensions appeal tribunals bill, modelled on the earlier legislation, had its second reading on 24th june. but the commons by now were deeply suspicious: details of the new warrant had not been released and at the committee stage a backbench revolt obliged the government to withdraw its bill. 17 when it returned nearly three weeks later, after the terms of the warrant had been disclosed, it contained major concessions on the burden of proof and the strength of the causal link between service and disability and also provided for an appeal from the tribunals on a point of law. 18given the bill's troubled history and hasty revision, it is not surprising that those involved in the creation of the tribunals failed to appreciate the significance of the changes in the warrant and the bil1.19 tribunal sittings began in october 1943, and more than twenty tribunals were soon in operation. 11. pari. debs. 1939-40 (5th series) h. of e., yo1.360,co1.899. 12. ibid., co1.705. 13. pro lco 2/2646. 14. pari. debs. 1940-1 (5th series) h. of e., yol. 370, col. 280. the ministry always refused to make public the number of claims on the grounds of national security. 15. pari. debs. 1941-2 (5th series) l-i. of e., yo1.383, co1.1896, per e. walkden. 16. pari. debs. (5th series) h. of e., yols.367-390 shows this growing pressure. 17. pari. debs. 1942-3 (5th series) h. of e., yo1.390,co]s.1333-1428, 1818-54. 18. ibid., yo1.391,cols.716-864, 1114-1220. for the reconstruction of the bill see pro lco 2/2780. 19. pro lco 2/3714: g. p. coldstream to sir a. napier, 9 september 1947. 99 the denning law journal in the debates government spokesmen had laid particular emphasis on the informal procedures, which would make legal representation usually unnecessary, and on the need to avoid the fate that had befallen the workmen's compensation acts.2oin the first few months the government's hope that the points of law upon which appeals were to be made to the nominated judge would be few seemed to be borne out,21 but plainly, much would turn on the interpretation placed by the nominated judge on the width of the right of appeal, since the more willing he was to entertain appeals the greater would be his opportunity to control the tribunals. the right of appeal 1. procedural limitations as well as being limited to points of law, the right of appeal was circumscribed in two ways: first by a requirement that leave must be obtained from the tribunal or the judge (section 6(2)) and second by a six weeks time limit for appeals, imposed by rule 23(2) of the pensions appeal tribunals rules 1943; by rule 31 this period could be extended by the tribunal or the president of the tribunals. the great war tribunals had consistently adopted a very rigid stance against allowing appeals out of time, administrative measures having had to be taken to mitigate the injustices that resulted.22 their successors seemed disposed to follow suit and in richardson v. minister of pensions23 (may, 1945) the court of session held that the president's decision was not reviewable by the court. cooper lj-c described the six weeks time limit as "very liberal", especially since "if an appellant can adduce some good reason for a relaxation of the time limit (as, for example, that the delay has been due to illness or some accidental mischance affecting himself or his advisers) the desired indulgence will doubtless be granted: and i should assume would not be opposed by the ministry at least in cases where the delay was slight.,,24in particular, the court was not prepared to grant an extension merely on the grounds that its own decision on one appeal cast doubts on the correctness of other tribunal decisions in cases with broadly similar facts.25 this was the orthodox view, with which the lord chancellor and the attorney-general were in agreement: "what had occurred was a possibility inherent in any system of law, and that if litigants did not exercise their right of appeal and subsequently a litigant does exercise his right of appeal and succeeds, the litigants in cases already decided cannot and should not have the opportunity of re-opening their cases. if such a course were allowed, the practical difficulties 20. pari. debs. 1942-3 (5th series) h. of c., vo1.390, cols.1326, 1355-6; vo1.391, cols.1205-9. 21. in the notes issued for the guidance of appellants the appeals were optimistically referred to as "rare cases"_ 22. pro leo 2/974, 978. 23. [1945] s.c. 363. 24. ibid., at p.368. 25. the minister of pensions had expressed a more liberal view: pari. debs. 1944-5 (5th series) h. of c., vo1.360, cols.2239-40. 100 the uses of power would be insuperable."26 but denning's decision in starr, nuttall and bourne v. minister of pensions27 meant that as many as 27,000 tribunal decisions were probably vitiated by procedural defects. because of the importance attached to maintaining the principle of finality in litigation and also because it was felt to be unfair to allow those claimants to appeal out of time and probably succeed on a technicality while later claimants with comparable case histories would fail on the merits of their applications, the government declined to take any action. this decision gave rise to a storm of protest in the press and in parliament.28 the minister's central advisory committee was strongly critical and servicemen's organisations were predictably up in arms: the british legion representative on the cac "could not believe that the government or the country would wish to stand on a legal position which deterred ex-servicemen from receiving pensions because their appeals happened to have been heard before certain legal pronouncements on the interpretation of the royal warrant had been made.,,29 neither did the legion confine itself to political activity, for it prepared a "mass attack" by placing seventy-three representative applications for leave to appeal out of time in denning's list.3o by unexpectedly setting these applications down for july 11th, denning denied the government any breathing space and seems also to have made it clear that he could not be relied upon to follow richardson.31 so to head off the "disaster" that an adverse decision threatened, the government had to come to terms with the british legion, the applications being adjourned while a compromise was negotiated.32 the terms ofthe bargain were that all of these cases would be reviewed by the ministry and claimants who were again rejected might take their case to a "special review tribunal", constituted like an appeal tribunal, but with members of the highest calibre that could be procured. although both sides might bring fresh evidence as it would be a hearing de novo, there would be no appeal from the srt's decision.33 here, then, the mere threat of a denning judgment sufficed to wring a significant concession from the government. as denning remarked in a later case, "this reserve power has often proved a decisive force in obtaining for servicemen their rights.,,34 nevertheless, denning knew the goverment's manoeuvre was designed to prevent him from delivering a highly inconvenient ruling and when he held, in brain and wilkes v. minister of pensions,35 that a tribunal erred in law when it decided against the claimant only by a majority, and thereby re-created the 26. pro lco 2/3711: nole of meeting, may 1946. 27. [1946] 1 k.b. 345. 28. see especially pari. debs. 1945-6 (5th series) h. of c., vo1.422, cols.1633-44. 29. pro lco 2/3711: w. paling to lord chancellor, 16 july 1946. 30. pro lco 2/3711: daily mirror, 12 june 1946. 31. [1945] s.c. 363. 32. supra, n.29. 33. this was announced in the commons on 25 july: pari. debs. 1945-6 (5th series) h. ofc., vo1.426, co1.2023. it was estimated that about 5,000 cases might go before the srts. 34. james v. millisler oj peilsioils [1947] 1 k.b. 867, at p.871. 35. [1947] 1 k.b. 625. 101 the denning law journal situation brought about by moxon and starr (albeit on a much smaller scale some eighty cases), the matter was taken to the social services committee of the cabinet, which accepted the lord chancellor's view that no concession to popular opinion should be made. the attorney-general duly repeated the orthodox view of the law, yet a few months later he was forced to admit that this view was mistaken. mrs james's husband had died of hodgkin's disease and in september, 1946 a tribunal had pronounced it not attributable to his war service. in november, a differently constituted tribunal held, in donovan v. ministry of pensions,37 that a hodgkin's disease case was attributable to war service. mrs james was refused leave to appeal out of time and applied to the judge.38 for the ministry, the attorney-general and harold parker qc argued that the scottish cases of richardson and whit?9 should be followed, that rsc order 55 r2(1)4o governing applications for leave to appeal out of time in the king's bench, was prohibitive and precluded this application, and that the question at issue in the case was one of fact not law. denning rejected each of the arguments, holding the rsc on this question to be directory, not prohibitive; it was not ousted by the pensions appeal tribunals act and the rules made under that act did not bind the judge,41so that he had the power to grant the application in an appropriate case. since the court of session's expectation that the president would grant leave whenever it was just to do so had been falsified by experience, especially by the refusals which had obliged the government to establish the srt's, then this was such a case.42 this was disingenuous, for cooper lj-c had made it abundantly clear that he did not consider injustice would be done simply because an interpretation of the law more favourable to the claimant was given after his own time for appealing had lapsed.43 for denning, however, "the circumstances of pension appeals differ ... from ordinary litigation. the serviceman usually appears in person, or is helped by a british legion representative. the minister appears by one of his officers who is not a lawyer ... the circumstances are altogether different from ordinary litigation where it is the duty of the party, and not the court, to raise any point of law on which he relies.,,44 moreover, "it is inevitable that in a field where the law has had to be declared and developed so rapidly, there should be occasional 36. pro lco 2/3714: memorandum to social services committee, june 1947 and minutes of meeting 55[47] 4th meeting, 25 june. 37. 1 w.p.a.r. 609. 38. [1947] 1 k.b. 867. for the decision to employ the attorney-general in this case see pro lco 2/3714: r.rieu to lord chancellor, 3 july 1947. 39. [1945] s.c. 363; 2 w.p.a.r. 483. 40. "an appeal to the nominated judge for leave to appeal shall not be made unless an application has been made to the tribunal and has been refused." 4\. [1947] i k.b. 867, at pp.869-70. 42. ibid., at p.8n. 43. [1945] s.c. 363, at p.368. 44. ibid., at p.873. 102 the uses of power errors." accordingly, he proclaimed that "the doctrine of stare decisis does not apply in its full rigour to this branch of the law.,,45 the second point, that in the absence of a hierarchy of appeals an erroneous judgment can only be cured by legislation if it has to be followed to the letter, is the stronger. the other seems plausible but becomes unconvincing when it is recalled that the "point of law" in question is really the one about the sufficiency of evidence which claimants regularly did take, and that the british legion advisers were in most cases at least as expert and alive to the possibility of an error oflaw of this kind as the average lawyer in a county court or magistrates' court. after james, the president of the pats told the lord chancellor's office that he would automatically grant leave out of time where the request was based on the impact of a later judgment.46 however, denning had still not finished widening his net, and now had the "unappealable" srt's in his sights. mrs gillibrand's claim had been rejected by a tribunal back in september, 1944, and was again turned down by the ministry on review, but this widow refused to take it to an srt; instead, following james,47 she sought leave to appeal out of time against the original decision and found denning predictably sympathetic.48 he agreed that her case should be remitted to a pat for "from any decision of that tribunal mrs gillibrand will have a right of recourse to this court. she shall not be forced to go before a tribunal from which there is no appeal. i am glad to have the assurances of the ministry that there will be no delay. she has waited for justice long enough.,,49 the tone of this pronouncement, familiar to connoisseurs of the later denning style, is somewhat at odds with the circumstances of the case, but it is clear that the exclusion of appeals from the srt's rankled with him. 50 he soon received an unexpected opportunity to bring even the sr ts under his control. the legion had kept its part of the bargain, but a mr revely, advised by the r.a.f. association, disregarded the understanding and, having been turned down by the ministry (twice), by a pat (in june, 1944) and by an srt, applied out of time for leave to appeal against the original pat decision.51 using his own decisions in james and gillibrand,52 denning explained that a "pre-moxon,,53 45. ibid., at p.872. 46. pro lco 2/3714: g. p. coldstream to sir a. napier, 9 september 1947. 47. [1947] i k.b. 867. 48. [1947] w.n. 320; i w.p.a.r. 1039. 49. i w.p.a.r. 1039, at p.1054. 50. it is evident from the tributes which denning and counsel for the british legion paid to the srts that it was not the actual quality of their decisions which concerned him: reve/y v. m il/isler of peplsiolis 3 w.p.a.r. 1573, at pp.1581, 1583. 51. 3 w.p.a.r. 1573. the reve/y case is complicated. his original appeal was allowed as to aggravation only and he did not appeal, but when his pension was stopped on a finding that the aggravation had passed away, he appealed against that decision. he was able to go to a srt on the original decision, but could not now appeal against it to the judge (woodrow v. mil/isler of peplsiolls i w.p.a.r. 659). 52. [1947] 1 k.b. 867; i w.p.a.r. 1039. 53. [1945] i k.b. 490. 103 the denning law journal claimant now had two choices and that "continuance of this dual system is very undesirable".54 afthe three reasons he gave the important one was plainly that the srts might decide points of law incorrectly and uncorrectably. he therefore seized the opportunity to work out with counsel for the various parties a rather complicated procedure whereby he would effectively (though not in form) create an appeal against the decision of an srt.55 george coldstream summarised the effects as follows: "we have now arrived at this situation: there is a statutory right of appeal to the nominated judge of the high court from a decision of the statutory tribunals and it seems that denning j will allow it to be exercised no matter what the date of the decision may have been and notwithstanding that the claimant has availed himself of the machinery of the srts. the very existence of the srts is based on the supposition that in cases rejected by the statutory tribunals before 31.7.1946, it is impossible for the claimant to get to the high court. on this hypothesis, one of the main reasons for setting up the srt procedures, disappeared. as a matter of practical effect, the new situation simply means that the claimant has a double review by the minister of pensions and a double appeal to a pat. ,,56 2. law and facts as for the restriction of the right of appeal to points of law, lord denning has taken a prominent part in "the incessant conversion of questions of fact into questions of law,,57 which has become such a feature of judicial practice. he playfully alluded to this technique in a lecture in 197758as one of the means used in policing administrative and quasi-judicial decision makers, but the boundary between the two is in any case notoriously difficult to draw with precision. 59some questions clearly fell to be regarded as points of law; such were the definitions of "war risk injury" and "war service injury" in the schemes for compensating civilians,where there was a useful body of case law from workmen's compensation to draw upon.60 but the floodgate which denning flung wide, and through which the british legion channelled a torrent of appeals, was the requirement that the tribunal should limit its deliberations to, and base its decision solely upon, evidence which was logically probative. 54. 3 w.p.a.r. 1573, at p.1581. 55. ibid., at pp.l582-84. the first such "appeal" vlllsell v. minister ojpensions) is reported at [1948] 2 all e.r. 789. 56. pro lco 2/3728: coldstream to attorney-general, 12 august 1948. the president of the srts (sir henry braund) declared that these decisions made them redundant, but after discussions, they were continued and denning's circuitous "appeal" procedure was simplified: pro lco 2/3712, 3715, 3716; swal/ v. mil/ister oj pensio1ls4 w.p.a.r. 387. 57. a.w.b. simpson in lord dem/irlg: the judge and the law, supra n.l, at paso. for a general account see s.a. de smith, judicial review of administrative action 3rd ed. (1973), pp.iii-20. 58. see justice, lord dennil/g and the c01lstitutioll,supra n.l, at p.163. 59. a point made by denning when criticising a tribunal for not giving assistance to a claimant in formulating her application for leave to appeal: lee v. minister of pe1lsions(no.2) 3 w.p.a.r. 1901. 60. examples are ex p. haines [1945] k.b. 183; re saffell [1946] i k.b. 259. 104 the uses of power this was the rule laid down by tucker j in moxon v. minister of pensions61 and confirmed in starr, nuttall and bourne v. minister of pensions62 and once the ministry amended its original practice, it was seldom that there was no medical evidence at all against the claim. it was vainly argued in scottish cases that medical questions were to be regarded purely as questions of fact and not susceptible to appeal,63 and denning soon gave notice that he was very willing to subject the medical evidence to detailed examination. the implications were lost neither on the government nor on the servicemen's organisations which assisted claimants. coldstream observed that "in his judgment in starr and nuttall ... denning j laid down as the test that the claim must be negatived by evidence . .. it seems, however, at any rate in the learned judge's view, to open up as a matter oflaw ... the question whether there was any evidence at all. rowing and forster64 are illustrations of this development. on this basis, every case might be appealable to the high court, and the limitation of appeals to points of law would cease to have any meaning." he predicted that the "microscopic attention paid to the precise words used by the doctor ... will inevitably mean slowing up of the machine" and that there would be a "flood of appeals to the high court".65 both predictions were fulfilled to some extent. some chairmen of tribunals, and especially the president (a. b. ashby), confronted with numerous notices of appeal couched in such general terms as "there was not sufficient evidence on which the tribunal could have found against . the claimant", sought to hinder appellants by requiring, in effect, "further and better particulars" under rule 25 in order to prepare the statement of case for the judge66 but denning took a dim view of such practices, insisting that the overriding terms of rule 11 should be given effect.67 with such encouragement the appeal in very general terms became commonplace,68 although in cases where the ministry had conceded, or the tribunal found, "aggravation" but not "attributability", it was varied to a claim that the evidence supporting one necessarily proved the other as well.69\¥hat kept the number of appeals down was the practice of the british legion in only promoting those which seemed to have a reasonable chance of success, rather than the formal restriction to questions of law. 61. [1945] i k.b. 490. 62. [1946] i k.b. 345. 63. brown v.ministerofpmsions [1946] s.c. 471; t. broum v.millister ofpmsiolls 2 w.p.a.r. 577; paul v. minister of pmsiolls 2 w.p.a.r. 633. 64. [1946] i all e.r. 664; i w.p.a.r. 145. 65. pro leo 2/3711: memorandum of i may 1946. 66. port v. minister of pmsiolls 3 w.p.a.r. 1491. 67. lee v. minister of pensions (no.2) 3 w.p.a.r. 1901. "it shall be the duty of the tribunal to assist any appellant who appears to them to be unable to make the best of his case" (r.ii(3». 68. stockwej/ v. minister of pensions i w.p.a.r. 189. 69. e.g., boll, baker and mcdermoll v. minister of pet/siol/s 3 w.p.a.r. 2167. 105 the denning law journal denning's determin,ation to keep the route to the high court open to all claimants led him to demolish all obstacles, whether embodied formally in rules or pleaded as administrative inconvenience.7o he was more than willing to pay the price of a greatly increased workload, and showed none of the concern at the proliferation of appeals that he later displayed to the detriment of other claimants to state provision.71 only one group of claimants failed to bring themselves within his jurisdiction. in gates v. ministry of pensions, 72 he rejected a widow's claim that it extended to appeals from tribunal decisions under the great war legislation. denning agreed that the body of the 1943 act did not expressly confine it to the later war, but the long title did and recent (unspecified) authorities showed that he might use that as an aid to interpretation. denning's successor, ormerod j, was even able to extend the scope of the appeal a little further. in stephens v. ministry ofpensions,73 against unusually strong opposition from counsel for the ministry, he held that in an exceptional case he might re-hear and grant an application for leave to appeal out of time which he had previously refused. in doing so he was acting on a suggestion of morton lj in ex p. aronsohn74 that this might be done where crucial new evidence had come to light. the steady flow of appeals which these decisions encouraged enabled denning to impose on the tribunals his conception of their practice and procedure. settling the practice of tribunals 1. the dethronement of the medical member in all his pension appeals, it is doubtful whether denning gave a more important judgment than he did on his very first day in starr, nuttall and bourne v. ministry of pensions.75 these were test cases arranged by the ministry of pensions in the hope that the new judge could be persuaded to adopt a less inconvenient approach than his predecessor, whose decision in moxon v. minister of pension/6 had dismayed and disconcerted those responsible for the operation of the tribunals. despite the significant changes made by the royal warrant and the revised bill, the tribunals, taking their lead from their president, conducted their proceedings in much the same way as under the earlier legislation and warrants. the informality stressed by ministers in parliament was given recognition in their own rules, which expressly empowered them to take notice of facts not admissible in a 70. in addition to those mentioned, see also bell v. minister of pet/siom i w.p.a.r. 965, dealing with difficulties where the claimant died before the hearing. 71. r. v. preston supplemelliary bet/ejit appeals tribunal, ex. p. moore [1975] i w.l.r. 624. this was, however, an application for certiorari. 72. 3 w.p.a.r. 2055. 73. 4 w.p.a.r. 985. 74. [1946] 2 all e.r. 544. this was the only attempt to challenge one of denning's decisions in the court of appeal. the court held that it had no power to review his refusal to grant leave to appeal out of time. 75. [1946] 1 k.b. 345. 76. [1945] k.b. 490. pro lco 2/3711: coldstream's memorandum, i may 1946. 106 the uses of power court of law.77 they believed themselves able "to take judicial notice of ejl"pert medical opinion",78 whether it was (1) submitted by an independent medical specialist, to whom they were authorised to refer "difficult medical questions"; 79 (2) furnished as a signed statement by a medical practitioner and properly put in by the claimant or the minister; (3) recited in the minister's statement of reasons for rejecting the claim; or (4) given by the medically qualified member of the tribunal himself, either at the hearing or during its subsequent deliberations. neither of the last two sources came within tucker j's definition of the evidence required by s.4 of the act: "it is, i think, of the essence of "evidence", according to english ideas, when used with reference to judicial or quasi-judicial ideas, that it should consist of oral statements or documents in writing which are made in the presence or communicated to both parties before the tribunal reaches its decision ... information communicated by the medical member to his colleagues during their deliberations does not fulfil these requirements and cannot, in my opinion, be relied upon as evidence ... ,,80 the proper role of the medical member was crucial to the way in which the tribunals operated and in taylor v. minister of pensions81 the ministry pressed the court of session to pronounce on this wider issue.82 cooper l]-c, with whom lords stevenson and patrick concurred, agreed that it would be illegitimate for the medical member to introduce new medical "facts" without an adjournment or a reference but held that it was in order for him to advise and instruct his colleagues on what the accepted view was on any matter of medicine. their approach to the statute was more purposive than tucker's: "it is legitimate to infer, with the experience of the workmen's compensation act in mind, that in providing for a medical member, parliament desired, as far as possible to prevent cases of this type from developing into costly contests between arrays of expert witnesses.,,83 the medical member must be more than an "animated lexicon" and need not "keep his professional knowledge and experience locked up in his breast.,,84 this was much more satisfactory to the ministry, and they contended that denning should prefer taylor to moxon.8s 77. pensions appeal tribunals (england and wales) rules 1943 (no.1757/l39), especially r.12/5; pari. debs. 1942-3 (5th series) h. of c., vo1.390, co1.l209 (attorney-general). 78. pro lco 2/3711: memorandum of i may 1946. 79. r.15. 80. moxoll v. millisler of pensions [1945]1 k.b. 490, at p.50!. 81. [1946] s.c. 99. 82. the court of session's earlier decision in brazierv. minister ofpellsiolls [1945] s.c. 359 was made shortly after, and in ignorance of, moxon and took a less strict view. 83. [1946j s.c. 99, at p.108. 84. ibid.. 85. [1946] s.c. 99; [1945]1 k.b. 490. 107 the denning law journal denning, however, firmly supported tucker's judgment. even if the medical member wanted to put his expert opinion forward as "evidence", he might not do so since the rules precluded him from being cross-examined, which was an essential feature of oral evidence.86 denning pronounced that "the function of the medical member, like that of the other members, is judicial. it is not to supply evidence, but to adjudicate on the evidence";87 and that sums up the english judges' view of the tribunals, that they should base themselves on the judicial model, weighing the evidence provided by the parties without supplementing it from their own expertise. just how strange and unpopular this conception was with the tribunals only becomes apparent from the response of their president and chairmen to denning's judgment. the chairmen memorialised the government, demanding legislation either to permit the medical member to "give evidence" or, failing that, to convert both him and the service member into assessors,88 while the tone of ashby's memoranda grew positively hysterical. it is clear that both he and the chairmen completely failed to grasp the essential changes that had been made in the terms under which they operated and had no conception that their proceedings could be seen as unfair to the claimant. his confident assertion that "tribunals ... had alwaysworked in that way quite smoothly, efficiently and justly ever since they were first started" was too much for coldstream, who retorted that "it seems to me that it is impossible for the tribunals to go on as they have been doing for the last 25 years it was certainly not schuster's intention that they should act now as they acted between 1920 and 1943."89 despite their predictions of chaos, the tribunals found that they could accommodate themselves to the more judicial manner of proceeding which was now required of them. there were, of course, longer delays, more adjournments and references,90 while the ministry of pensions warned that their representatives "would have to be instructed to adopt a more pugnacious attitude than in the past,,;9i in short, proceedings would come to resemble more closely those in a court of law. "the lord chancellor recognised that these results could not be avoided, but both he and the attorney-general did not consider them to be unduly serious and they agreed moreover that the judgments of denning j were probably correct . . .".92 the "dethronement of the medical member,,93 was underlined in further judgments which denied that he might give advice to the tribunal based on his 86. [1946] 1 k.b. 345, at p.353. 87. ibid., at p.l07. 88. pro lco 2/3711: a. 8. ashby, "memorandum no.2", 11 june 1946. 89. ibid.; pro lco 2/3711: coldstream to ashby, 18 june 1946. 90. predicted in coldstream's memorandum, supra n.78. in parliament, court rulings were given as the reason for delays: pari. debs. 1946-47 (5th series) h. of c., vo1.430, cols.1398-99. 91. lco 2/3711: minute of meeting, may 1946. 92. ibid.. 93. colpstream's phrase, supra n.78. 108 the uses of power observation of the claimant at the hearing or utilise medical opinion which had not been put before the tribunal, and in which even the inference that he might have gone outside his judicial role was sufficient to make the decision bad.94 the tribunal, then, was to model its deliberations on those of a court, assuming a judicial stance rather than an inquisitorial one and only seeking to interpret the 'evidence' before it. it was not limited to evidence understood by the courts, but it is not surprising, in view of the english judges' insistence on imposing the judicial model, that the tribunals sometimes erred in excluding material which satisfied the "logically probative" test. 95 denning, indeed, was anxious that they should have before them as much material, particularly of a medical nature, as necessary, in order to fill the gap left by eliminating the evidence-providing function of the medical member. to this end he actively encouraged them to resort to independent medical specialists whenever it might be useful to them or advantageous to the claimant,96 even holding that if the claimant produced a specialist's report more favourable to his claim than that of the ims, the latter should be sent a copy and given an opportunity to reconsider his own opinion.97 likewise, both denning and the court of session insisted that the ministry's statement, the basic record of the claimant's military service and medical history, must be full, detailed and not selective.98 moreover, although the rules governing evidence might be less strict, the procedural safeguards for the claimant must be maintained in their full rigour: he must have an opportunity to see or hear and deal with all the evidence and to put in evidence contradicting it,99 although his failure to provide evidence on relevant matters might legitimately form the basis for unfavourable inferences. i in order for him to be able to deal with medical evidence, it must, therefore, be couched in a form intelligible to a layman and not made too cryptic or technical. 2 94. birt v. minister of pensions 1 w.p.a.r. 151; forster v. millister of pensions 1 w.p.a.r. 145; hurst v. minister of pensiolls 1 w.p.a.r. 525; heyward v. minister of pmsions 1 w.p.a.r. 557. 95. xy v. minister of pensions [1947] 1 all e.r. 38 (proceedings of military court of enquiry); baxter v. minister of pensions 1 w.p.a.r. 1203 (claimant's medical certificates); dolllwan v. minister of pensions 1 w.p.a.r. 609 (medical textbooks). 96. this practice was clearly in evidence by may, 1947: see pro lco 2/3709: belfray (rc]) to sir a. napier 13 may 1947. 97. harris v. minister of pellsions 4 w.p.a.r. 73. the ims should see all the medical evidence from both sides (fitzhugh v. minister ofpensiolls 4 w.p.a.r. 101) and the terms of the request to him should also be made available to the parties (houlicall v. millister of pmsiolls 3 w.p.a.r. 1355). 98. chairmen complained of the ministry's selectivity and editing: pro lco 2/3707. the court of session criticised this tendency in findlay v. minister of pmsiolls [1947] s.c. 589. 99. birt v. millister of pmsiolls 1 w.p.a.r. 141. in fox v. minister of pensiolls i w.p.a.r. 459 a sick claimant who had dictated her evidence at home was held entitled to have an opportunity to sec and check thc version put before the tribunal. 1. childs v. minister of pensions 1 w.p.a.r. 679;hulli v. millister of pmsiolls 1 w.p.a.r. 1093. 2. thompson v. minister ofpmsions 1 w.p.a.r. 479; salter v. millister ofpmsions 1 w.p.a.r. 1195. as the franks commission recognised, there were limits to this: cmnd 218 of 1957, para. 222. 109 the denning law journal 2. the burden ofproof upon this material the tribunals must form their opinion, but here again it was insisted that they must work, as the courts did, within a framework of burdens and presumptions. the warrant explicitly stated that "in no case shall there be an onus on any claimant under this our warrant to prove the fulfilment of the conditions [for entitlement to a pension] and the benefit of any reasonable doubt shall be given to the claimant" (article 4(2». moreover, by article 4(3) "where an injury or disease which has led to a member's discharge or death during war service was not noted in a medical report made on that member on the commencement of his war service, a certificate [of entitlement] shall be given unless the evidence shows that the conditions ... are not fulfilled." although, as edmund davies] later put it, "the task of interpreting article 4(2) has been bedevilled by the presence of article 4(3)",3 judges had no doubt that article 4 wrought a fundamental change by shifting the onus onto the ministry to disprove the claim. however, perhaps because the warrant did not expressly reverse the onus, at least some tribunal chairmen, and the ministry of pensions, did not fully appreciate its significance. they were given a ride awakening in the first reported case, lroingv. ministry ofpensions,4 in which cooper l]-c, speaking obiter and without hearing argument, not only insisted that in every disputed fact the onus must be on one party or the other, but also remarked that the phrase, 'any reasonable doubt' seemed to place the tribunal in the position of a jury in a criminal trial. the point was fully argued and his view approved in mitchell,5 while in england tucker ] insisted on the importance of the change in onus and approved the scottish decisions, which interpreted "doubt" in article 4(2) as meaning "a reasonable doubt, and not a strained or fanciful acceptance of remote possibilities.,,6 moxon was cited in starr,7 where denning considered the question of onus in some detail. he was particularly well qualified to do so at that time, having recently published an article entitled, "presumptions and burdens",8 which argued for a new classification of presumptions as "provisional", "compelling" and "conclusive", and of burdens into "legal", "provisional" and "ultimate" as a way out of the confusion into which he felt english judges had fallen. in starr, denning held that the minister's function was "quasi-judicial. he may be able to come to a determinate conclusion without reasonable doubt, but if the evidence leaves him in reasonable doubt, then the claimant must be given the benefit of the doubt. that means that he must not decide against the claimant on a 3. judd v. millisler of pensiolisalld naliol/allllsurallce [1965] 3 all e.r. 642, at p.648. 4. [1945] s.c. 21 5. [1946] s.c. 131. 6. moxoll v. mil/isler of pmsiolls [1945] 1 k.b. 490, quoting cooper lj-c in lroillg v. millister of pf1lsiolls [1945] s.c. 21, at p.29. 7. [1946] 1 k.b. 345. 8. (1945) 61 l.qr. 379. 110 the uses of power mere balance of probabilities ... there must be a real preponderance of probability against him such as to exclude reasonable doubt.,,9 he also considered the meaning of article 4(3), which raised a "compelling presumption ... which takes the place of evidence." the distinction between claims made with the benefit of 4(3) and others was that "in order to defeat a claimant, in cases under article 4(2), the evidence against him must overthrow any evidence in his favour, whereas, in cases under article 4(3), it must also overthrow the presumption in his favour."jo even outside article 4(3) a "provisional presumption" might arise in the claimant's favour. in rowingv. minister of pens ions i 1 denning said that "if a man is accepted for service in a certain medical category there is a presumption that at the time of his acceptance he was fit for the kind of service demanded of a man in that category; and in the event of his discharge subsequently on medical grounds due to deterioration in his health, there is a presumption that the deterioration was due to his service." this was wrongly interpreted in some quarters as endorsing the slogan "fit for service, fit for pension".12 it was generally assumed, on the basis of those decisions, that the "real preponderance of probability" test was the same as in criminal cases, but subsequently, in miller v. minister of pensions, 13 denning appeared to resile from that position. after expounding "with classical clarity,,14 the criminal standard demanded in article 4(3) cases, he held that other cases "must be decided in favour of the man unless the evidence against him reaches the same degree of cogency as is required to discharge the burden in a civil case.,,15 this ignored the decision in irving,16 which was directly in point, and reduced the "real preponderance of probabilities such as to exclude reasonable doubt" to a much lower level. miller was followed by ormerod j17 and relied upon by the ministry, but ironically (in view of denning's special academic interest in this area), became his only pensions decision to be expressly departed from by a nominated judge. black lj, in a northern ireland case, 18was able to distinguish miller, but edmund davies j, in a full and careful judgment in judd v. minister of pens ions and national insurance,19 preferred black's reasoning that where the draftsman incorporates a phrase ("reasonable doubt") which is known to have a recognised legal meaning, it should be assumed that parliament intends it to be given that meaning; he therefore re-established the higher standard of proof for all cases under the 9. [1946] 1 k.b. 345, at pp.350-51. 10. ibid., at p. 351. 11. [1946] 1 all e.r. 664, at p.665. 12. pari. debs. 1945-6 (5th series) h. of c., vo1.421, eols.2077-82. 13. [1947] 2 all e. r. 372. 14. per edmund davies j in judd v. minisler of pensions and n l. [1965] 3 all e.r. 642, at p.649. 15. [1947] 2 all e.r. 372, at p.374. 16. [1945] s.c. 21. 17. oliver v. millisler ofpmsions 5 w.p.a.r. 153. 18. minisler of pensions v. greer [1958] n.j. 156. 19. [1965] 3 all e.r. 642. 111 the denning law journal pension warrants. it is possible that denning's apparent change of mind on this issue is explained by the context of miller, which was one of the "unknown aetiology" cases which gave the tribunals their greatest difficulty. 20 3. unanimity in decisions denning's rule in brain and wilkes v. ministry ofpensions,21 that a tribunal must be unanimous in rejecting the claimant's appeal, has also attracted unfavourable judicial comment. in brain and wilkes, as in three cases which had earlier been considered together by the court of session, the chairman dissented from the lay members who found against the claimant. the court of session clearly wished to discourage such an outcome without feeling able to go so far as to hold it wrongful: "without affirming that it is incompetent for a tribunal to decide by a majority, it appears to us that, when the question is the sufficiency of evidence to discharge such an onus, and when an express injunction has been laid upon the tribunal to give the claimant the benefit of any reasonable doubt, only the most powerful considerations can justify the medical and service members in outvoting the legal chairman ... ".22 denning went further. with characteristic boldness and without drawing on precedent he sketched an elegant overview of the position. starting from the proposition that "the rule whereby decisions are reached according to a majority vote is firmly established in all cases where one body alone is competent to reach a decision", he pointed out that because of the high risk of error ("it is almost as likely to be wrong as it is to be right"),23 the law has devised two methods of avoiding or reducing the risk. one is to give a right of appeal (as from magistrates to quarter sessions), the other is to require unanimity, or in default are-hearing before a differently composed body. the latter, exemplified by jury trials, is the one appropriate to pension tribunals, where an appeal lies only on points of law. because of the way judges direct juries, however, ("the commonsense way in which the rule as to unanimity is applied")24 re-trials are very rare. the contrast between denning's style of judgment in brain, and that adopted by lord parker cj in picea holdings v. london rent panet25 and by the court of appeal of new zealand in atkinson v. brown26 is instructive. both took as their starting point the old case of grundy v. barker (1798)27 in which eyre cj had found a well established rule that in public matters majority decisions were the rule, subject to contrary provision in the governing statute. neither liked denning's analogy with the jury which, indeed, seems hardly to fit comfortably a tribunal with specialist 20. [1947] 2 all e.r. 372. 21. [1947j 1 k.8. 625. 22. brown v. minister oj pensiom [1946] s.c. 471, per cooper lj-c at p.476. z:5. ll<j47j i k.b. 625, at p. 626. 24. ibid., at p.627. 25. [1971] 2 all e.r. 805. 26. [1963] n.z.l.r. 755. 27. 1 bos. & p. 229. 112 the uses of power knowledge making findings oflaw and fact, and each distinguished brain as "a very special case". 28 the jury analogy, however, was taken up by ormerod j in a way denning can hardly have intended. in minister of pensions v. horsey29 the ministry successfully contended that a majority decision for the claimant must also be bad, for as the judge pointed out a jury's verdict must be unanimous whichever way they find. in horsey, ormerod j was unable to distinguish the two situations either a body was entitled to proceed by a majority or it was not and he felt bound to follow denning in holding that these tribunals were not. reviewing tribunal decisions 1. interpreting the roidence once the correct procedures for tribunals to adopt had been laid down by the courts and the meaning of certain key phrases in the governing statute and warrants, notably those defining "war risk injury" and "military service", had been elucidated,30 the question at issue in most appeals was whether the tribunal had correctly interpreted the medical evidence in the light of the burden of proof.3! the rigorous and painstaking scrutiny of the medical opinions on appeal to the judge became so microscopic that ormerod j found it necessary to put in a caveat: "neither the medical reports nor the reasons given by the tribunals should be scrutinised in quite the way that pleadings might be scrutinised and dealt with as between lawyers on the hearing of a case, but at the same time, of course, i must be satisfied on a consideration of the whole of the documents that the questions which ought to be considered have been considered and considered from the proper point of view.,,32 besides being intelligible to laymen, medical opinions should be full and detailed;33 they should not assert as a fact the very thing the tribunal was called upon to decide, that the disease was not caused or aggravated by military service,34 nor merely that it was endogamous, without fully explaining 28. [1963] n.z.l.r. 755, at pp.767, 769; [1971] 2 all e.r. 805, at p.809. commentators therefore view the pensions decisions as of doubtful authority: h.w.r. wade, admillistrative la/v 5th ed. (1982), p.812; s.a. de smith, judicial review of admillistrative action 3rd cd. (1973), p.350. 29. [1949] 2 k.b. 526. 30. appeals involving these phrases continued to occur (see, e.g., minister of peilsiolisv. higham [1948] 2 k.b. 153) including several involvingself-inflicted (negligent) injuries (williams v.ministerofpeilsiolls i w.p.a.r. 755, sharpe v. minister of pensiolls i w.p.a.r. 909, weidman v. minister of pemiolls 3 w.p.a.r. 2215) and suicides (fuller v. millister of pellsions 3 w.p.a.r. 1617, duff v. millister of peilsioils [1949] s.c. 63, mccrurie v. minister of pensions 2 w.p.a.r. 783, blanchflower v. minister of pensions 4 w.p.a.r. 887), but they form a very small proportion of reported appeals. 31. the appellant's statemen( of case had actually to be cast in the form of an assertion "that there was no evidence on which the tribunal could reasonably come to its conclusion, or in other words that the conclusion drawn by the tribunal could not be reasonably drawn from the facts before them": armstrong v. minister of pemions 3 w.p.a.r. 1449, at p.\467. 32. rickmall v. minister of peilsioils4 w.p.a.r. 873, at p.886. for examples see mi'lister of peilsioilsv. walten i w.p.a.r. 637 and mepham v. millister of pel/siom i w.p.a.r. 515. 33. see, supra n.2. 34. mansfield v. minister of pensions i w.p.a.r. 439. "only too often a medical opinion has consisted merely of the assertion that the disease is not attributable or aggravated by war service without any reasons to support it": amlstrollg v. minister of pel/siom 3 w.p.a.r. 1449 at pp.1467-68. ii3 the denning law journal how it arose and progressed.35 only with this information could the tribunal do its job properly. the most difficult cases were those in which a claimant fell victim during or after his military service to a disease whose aetiology was wholly unknown or imperfectly understood, whether a physical ailment such as cancer or a mental one such as schizophrenia. under the old warrants, such a claimant had little hope of persuading the ministry or a tribunal that he was entitled to a pension, but now the onus was on the ministry to refute any causal connection and to the inherent difficulty of proving a negative was added those occasioned by the removal of the need for disability to be "directly" attributable or "materially" aggravated by service.36 in early cases the ministry deployed three sometimes overlapping arguments to meet this challenge, and met with some success before tribunals which were bemused by the unfamiliar reversal of the burden of proof and often reluctant to give full weight to the presumptions in favour of the claimant.37 the first argument was that where a disease of unknown aetiology occurred among civilians and servicemen alike, there could be nothing peculiar to service conditions affecting its onset or progress; the second was that, even where the disease had not manifested itself before enlistment, "according to the present accepted medical views of the disease in question, the claimant must have had a 'predisposition' or an 'inherent constitutional tendency' to that disease",38 which was the primary cause; the third was to concede that the disease had been aggravated by military service, but to deny that it was attributable to it.39 in brown40 the court of session launched a strong attack on these arguments and on the ministry's general approach. they disliked the resort to excessive jargon and technicality, for "the nature of the tribunal selected for the purposes of affirming or denying attributability, indicate in our view that the search is for causation no doubt, but not in the metaphysical or scientific sense but in the wider and more liberal sense in which 'the matter would be understood by the man in the street applying commonsense standards'." they were concerned lest "if the objectionable tendencies are not checked, it will soon be possible to prepare a 35. mclean v. minister of pensiolls 1 w.p.a.r. 535. 36. this was the government's concession to the "fit for service, fit for pension" lobby: pari. debs. 1942-3 (5th series) h. of c., vo1.391, cols.716-22. 37. they were still being strongly criticised on this count by the court of sessions in several cases in 1947, notably in v. scolt v. mil/ister of pensiolls 1 w.p.a.r. 565; j. scott v. minister of pensiolls 1 w.p.a.r. 589; l. mitchell v. minister of pmsiol/s 1 w.p.a.r. 597. 38. browl/ v. minister of pensions [1946] s.c. 471, at p.476. 39. this was less favourable to the claimant since the degree of "aggravation" had then to be assessed and he might later find his pension stopped on the grounds that "the aggravation had passed away", i.e. that the increased severity of the disease or the acceleration in its progress brought about by service was now at an end. a number of these "passed away" cases began to come before the nominated judges in 1947. 40. [1946j s.c. 471. 114 the uses of power schedule of diseases for which pensions can never be awarded; and this we are convinced would be entirely contrary to the letter and the spirit of the royal warrants.,,41 denning certainly agreed that the arguments outlined above were logically flawed. in nuttall v. minister of pensions42 he had already demolished the fallacy embodied in the argument from statistics, and in stockwell v. minister of pensions43 he echoed the scottish insistence that "a predisposition to a disease is not a disease". the fine distinction between attributability and aggravation was more difficult, and remained a pitfall for tribunals, but in marshall v. minister of pensions44 he produced a beautifully lucid set of guidelines to distinguish between the two. however, both english and scottish judges eschewed the simplest approach, which was several times urged upon them in argument,45 that ex hypothesi, if the nature of a disease was not properly understood it could not be proved 'beyond reasonable doubt' that nothing in the claimant's military history had caused or aggravated it in his case. edmund davies ], reviewing the case law which had developed, evidently felt strongly drawn to this argument46 and it is possible that denning's preference for the lower, civil standard of proof in cases where the presumption in article 4(3) did not apply owes something to his recognition of the excessive difficulties the higher burden would have imposed on the ministry.47 nevertheless denning laid down stringent tests which the ministry had to meet before it could discharge the burden of proof in these cases. first, there had to be enough knowledge of the disease to enable all the factors which might cause or aggravate it to be considered: while it remained wholly mysterious, it was impossible to do this and the claimant must succeed.48 second, where exogenous factors might playa part, compelling medical evidence had to be adduced to refute the possible effect of any event or circumstance suggested either by the claimant, by medical opinions or in the ministry's recital of his service history; it was not necessary however to deal with everything to which he might have been subjected 41. ibid., at p.476. 42. [1946] 1 k.b. 345. 43. 1 w.p.a.r. 189. see also his rejection of the concept of a "latent disease" in baird v. minister of pros ions 1 w.p.a.r. 169 and of the search for a "predominant cause" in hoi/om v. minister ofpetlsions 1 w.p.a.r. 283. 44. 1 w.p.a.r. 785. the concession of aggravation sometimes backfired, e.g. in dickerson v. minister of pros ions 1 w.p.a.r. 561, but in tuxford v. minister oj pros ions 3 w.p.a.r. 1549, denning would not hold the concession against the minister and remitted the case. 45. e.g., saxby v. minister of pros ions 1 w.p.a.r. 203; docherty and others v. milllster of petlsiolls2 w.p.a.r. 655. 46. coe v. ministerofpetlsions and n. i. [1966] 3 all e.r. 172, at p.175. 47. see supra. 48. e.g., donllvan v. mimster of petlsions 1 w.p.a.r. 609 (hodgkin's disease); killg v. minister oj pros ions 1 w.p.a.r. 809 (leukaemia); docherty arid others v. minister of pros ions 2 w.p.a.r. 655. 115 the denning law journal regardless of some positive indication of relevance.49 third, the evidence must be strong enough to meet whichever standard of proof the case demanded. so 2. the role of the courts denning's conception of the role of the nominated judge was quite remarkable in an era which a leading authority has described as forming "the great depression" in administrative law. it is highlighted by the contrasting approach of the court of session. the scottish judges showed greater anxiety to avoid the pitfalls of "legalism" and to give effect to the "letter and the spirit of the royal warrants", they seem not to have been anxious to encourage appeals or to formulate detailed guidelines for the tribunals. denning was altogether more ambitious. he found, ironically, that the consequence of imposing upon the tribunals stricter judicial definitions of evidence, proof and procedure and insisting upon a minute scrutiny of the medical evidence, often tended to obscure the real merits of the case. even where this produced a result favourable to the claimant, denning felt that "it is unsatisfactory that a case of this kind should depend for its determination on the narrow construction of words in medical opinions. cases should be determined on their real merits."si neither did it ensure consistency, for since the interpretation of evidence was still a matter for the tribunals52 differences in the quality and up-to-dateness of the evidence before them might lead to different findings in cases on similar facts concerning the same disease: "so far as the claimants are concerned, the cases are identical. it would give rise to an intolerable sense of grievance if the results varied according to the date at which the medical opinion was given or on the phraseology in which it was worded without regard to the real merits of the cases themselves. when the material facts are indistinguishable the consequences should be the same.,,53 in order to achieve these goals of consistency, a more positive and creative supervision was needed and with the co-operation of sir harold parker (the legal adviser to the ministry, who regularly appeared before him) and the legal advisers to the british legion it was duly implemented and described in some detail in armstrong and larkin v. ministry of pensions. 54 49. cf briggs v. minister of pmsions 1 w.p.a.r. 2] 1 (schizophrenia), lightfoot v. minister of pmsions 3 w.p.a.r. 1303 (cerebral haemorrhage) and freeman v. minister ofpmsions 3 w.p.a.r. 1303 (cancer of colon), all successfully rebutted, with crommiev.ministerofpemiolls 1 w.p.a.r. 1]52 (hypertension), hurst v. minister of pezlsiolis] w.p.a.r. 525 (rheumatism), bridge v. millister of pensiom 1 w.p.a.r. 139(typhoid). 50. e.g., parr v. minister of pmsions ] w.p.a.r. 511; chapmall v. minister of pensions 1 w.p.a.r. 917; osgodby v. minister of pf/lsions ] w.p.a.r. 1011. 51. walker v. minister of pmsiom 3 w.p.a.r. 1413, at p.1421. 52. a point he emphasised in viner v. millister ofpmsions 1 w.p.a.r. 997; hardjl v. minister of pensions 3 w.p.a.r. 1259. 53. armstrollg v. minister of pmsiolls 3 w.p.a.r. 1449, at p.l467. 54. 3 w.p.a.r. 1449. 116 the uses of power central to this new practice was the regular use of the power to remit cases for reconsideration, which was to be done whenever "the superior court can see that there was an error in law, but cannot say, one way or the other, whether the ultimate conclusion was wrong.,,55 he listed nine circumstances in which it would be appropriate to remit, 56 and in 1948 alone he followed this course in no fewer than five-sixths of reported appeals. in particular, it was used when the evidence before the tribunal did not justify the conclusion which it had reached, and was insufficient to establish the real merits of the claimant's case. the process could also be used to promote consistency. as soon as a suitable "typical case" involving a common disease of unknown or doubtful aetiology arose, the ministry and the legion made sure that it was appealed; denning would remit it for reconsideration with leave to adduce further medical evidence; the reconsidered decision, with the fullest and most authoritative medical opinions that could be procured, would then be brought back before the judge, who would be able to review the decision in the light of all the evidence;57 the case would then appear in the reports, together with a summary of the medical evidence, which would be available to tribunals considering other cases involving the same disease.58 indeed, "the practice has been found so useful that when a disease of obscure origin first comes before the court, the parties often agree for it to be remitted for reconsideration for the express purpose of obtaining an authoritative decision on it, see joyce's case.,,59 in this way, before armstrong, "signpost" decisions had already been reported for leukaemia, diabetes and some cancers,60 and the process became so commonplace that the editor of the reports simply noted of one case: "this case is reported as it is the "signpost" case of hodgkin's disease. ,,61 55. ibid., at p.1466. denning derived this power from the "necessary implication of the statute": s.6(2) provides that "where ... the appellant or the minister is dissatisfied with the decision of the tribunal as being erroneous in point of law, he may ... appeal therefrom ... and the decision of [the] judge shall be final and conclusive." 56. where evidence has been wrongly admitted, or wrongly excluded; the tribunal misdirected itself in law, or where there is reasonable doubt that it has directed itself properly; where its procedure has been contrary to the rules or the requirements of practice; where there was reasonable ground for thinking that the decision might be wrong in law, but the facts were insufficiently stated to allow the court to make a decision; where the parties agree to bring an "obscure origin" disease before the court to secure an authoritative decision; where leave is granted out of time; other cases where the parties agree to it being remitted although there is no error in law. an earlier summary of his practice on appeals is in atkinson v. minister of prnsions 1 w.p.a.r. 981. 57. armstrong v. minister of prnsions 3 w.p.a.r. 1449, at pp.1467-68. 58. such evidence was allowed in slone v. minister of pensions 1 w.p.a.r. 1171 (decided in january, 1948, four months before armstrong), and regularly thereafter. 59. armstrorlg v. minister of pensions 3 w.p.a.r. 1449, at p.1468; joyce v. mimster of pensions 1 w.p.a.r. 1235. 60. 3 w.p.a.r. 1449, at pp.1467-68. 61. wallis v. mirlisterofpensiolls 4 w.p.a.r. 743. this practice was devised without reference either to the lord chancellor's office or to the president of the tribunals. after protests by the president (sir owen beasley) it was slightly modified, but continued to achieve the desired result: pro lco 2/3730. the "signpost" practice was explained and approved by ormerod j in 5 w.p.a.r. 47, at p.62. 117 the denning law journal there were drawbacks to this course. one was that pending appeals to the tribunals were delayed, sometimes badly, while the result of a "signpost" case on their disease was awaited.62 again, tribunals had to be warned not to follow the reported cases blindly where (as was usually the case) they held that a disease would not usually be attributable to or aggravated by war service, but carefully to consider any particular distinguishing facts in the instant case.63 there were also unfortunate cases in which the claimant succeeded in showing that on the evidence before the tribunal it had wrongly decided against him only for it to be ruled that evidence subsequently available in a "signpost" case was admissible which justified the refusal of a pension.64 once again, the practice of the court of session makes an instructive contrast. they admitted the power to remit cases and occasionally exercised it, but when counsel for the ministry of pensions sought to persuade thc court that there was a regular practice in england of remitting a case whenever the medical evidence was insufficient to justify the tribunal's conclusion, he was given a very rough ride.65 lord mackay criticised denning's decision in one of the cases cited to him, and declined to accept that "the group of disconnected instances from mr justice denning's court establishes any such habit or practice there", feeling that to remit cases in which the ministry's evidence was insufficient to make out its case would be "apt to defeat the short purposes of the act and warrant".66 these criticisms were considered by denning in armstront7 but he maintained, with doubtful plausibility, that the scottish view that for remittance to be appropriate "some particular circumstances or failure or some peculiar needs of the general requirements of justice, would require to be shown,,68was entirely consistent with his own. he admitted that there was some difference in approach but, with the support of both counsel, decided not to alter his practice to conform with scotland.69 62. see, e.g., bungey v. minister ofpensiolls 3 w.p.a.r. 1523 ("widows' claims such as these should not be subjected to delay"), waiting on the signpost case of ward v.minister ofpmsions 4 w.p.a.r. 521, not heard until july 1949, fourteen months later. 63. e.g., rice v. ministerofpmsions 3 w.p.a.r. 1253; garland v. minister ofpmsiolls 3 w.p.a.r. 1505. cf ormerod j at 5 w.p.a.r. 62. 64. clark v. minister of peilsions 4 w.p.a.r. 283. likewise, in a leukaemia case (watson v. mil/ister of pmsions [1949] s.c. 107) on all fours with their own decision in thorson v. minister of pensions 2 w.p.a.r. 655, where they had held that the ministry had failed to discharge the burden of proof, the court of session ruled that evidence in the "signpost" case (kinkaidv. minister of pensions [1948] w.n. 208) should be admitted at the re-hearing. 65. bache v. minister of pmsions [1948] s.c. 176. 66. ibid., at p.191. 67. 3 w.p.a.r. 1449. the court of session had recently repeated its views in docherty v. minister of pensiolls 2 w.p.a.r. 655. 68. [1948] s.c. 176, atpp.190-91. 69. 3 w.p.a.r. 1449, at p.\470. 118 the uses of power conclusion how does denning's work as the nominated judge fit in with recent verdicts on his judicial career? professor palley asserts that "it is a schoolman's game to analyse denning's decisions by reference to logic and precedent, because he was so instrumental in his approach that, if convenient, he would ignore both";7o he was "entirely result-orientated", "a naive utilitarian" who "abhorred technicality and believed in common sense", whose greatest contribution was the "re-emphasis of'justice"'.71 in a well-known quotation he has himself emphasised that "my root belief is that the proper role of the judge is to do justice to the parties before him.'m in administrative law he is said by professor jowell to have espoused an "activist model" of the judicial role which tends to the adoption of a "purposive" interpretation of statutes,73 claiming and asserting for the courts an "inherent jurisdiction to control all inferior tribunals, not in an appellate capacity, but in a supervisory capacity."74 his critics75 would probably not dispute these descriptions, though they would draw different conclusions from them. in pensions appeals, of course, he had no need to assert the inherent supervisory jurisdiction, because the appellate one was given and limited by the act. his interpretation of that role, however, certainly conforms to the "activist" model and went well beyond the likelyintentions of those responsible for the appeal provision. this is apparent in his characteristically broad interpretation of a "question of law", though that was shared by the scottish courts. more distinctive was denning's robust demolition of all obstacles placed in the path of would-be appellants to his court, whether by time limits, consents, administrative arrangements or bargains (and most remarkably his departure from the general principle that a later decision which casts doubt upon an earlier one affords no grounds for an appeal).76 even more striking is the way he fashioned the appeals system into a regular means of imposing consistency of practice and interpretation on the tribunals. successive presidents, ashby and beasley, and some of the chairmen, found his encouragement of appeals and close supervision irksome.77 it is therefore ironical that the franks tribunal attributed the "high degree of consistency in their methods and decisions" to the appointment of a president.78 70. lord daming: the judge and the law, supra n.l, at p.344. 71. ibid., at pp.253, 261, 364-65. 72. the family story (1981), at p.174. 73. lord denning: the judge alld the lalv, supra n.l, at pp.212-13. 74. ibid., at p.213, quoting denning's decision in r. v. northumberland compellsatioliappeal tribllllal, ex p. shaw [1952] 1 k.b. 388. 75. e.g., p. watchman and e. young injustice, lord denning and the co/is/illl/ion,supra n.l, pp.157 et seq.. 76. supra, pp.98-102 77. see, e.g., pro lco 2/3730: beasley to r. rieu, 28 february 1949. 78. cmnd. 218 of 1957, para. 220. 119 the denning law journal the object of his intej"\lentionismwas to ensure that all claimants got "a fair crack of the whip" and that the tribunals adhered to the warrant, the act, the rules and "the requirements of justice".79 what justice seems to have required was that their procedures and conduct should approximate as closely as the terms of the governing regulations allowed and their own special composition and functions permitted to the traditional model of an english court. however, because they were not a court, they had to be unanimous in their decisions and in the absence of counsel had to take particular care to assist the claimant in presenting his case and understanding his rights.8o in pursuit of his insistence on due process, denning was quite indifferent to any inconvenience which it imposed on tribunals or administrators. if the minister made a mistake in preparing cases "he has made much trouble for himself',81 and he must live with the consequences of thousands of wrongly decided appeals; if majority decisions were impermissible it mattered not that the ministry would have to search back through two and a half years of appeals to find out instances; when denning insisted that appeals should lie (indirectly) even from the special review tribunals, he was unimpressed by the argument that he thereby defeated their entire purpose. due process was inconvenient: it made heavy demands of the tribunal chairmen as well as the ministry's officials, and it led to a profusion of delays, adjournments and references. when denning encouraged tribunals to resort as a regular practice to independent medical specialists, when he accepted appeals in their thousands rather than as "exceptional cases", or remitted numerous cases for reconsideration, he knew that it would cost the treasury more than it had budgeted for, but felt that a worthwhile price to pay for justice.82 moreover, in ensuring that justice was done he would have no truck with technicalities: in one case he pronounced "we will do it anyway: i do not want to go too much on technicalities. ,,83 it is important, however, to stress the limits of denning's "justice" in pensions cases. it was essentially procedural, not substantive. in marked contrast with the cases on deserted or divorced wives, with which he was shortly to create such a stir, he felt no need to strain statutes or make new law in order to create or amplify rights. of course disability pensions were a statutory creation of recent origin, but even so there might well have been a temptation to lean consistently towards the claimant in interpreting the legislation, for there was a widespread popular feeling (at least during and immediately after the war) that the provision was mean and inadequate. moreover there was no effective curb on the nominated judge's decisions and pensions were not a party political issue. yet despite professor 79. armstroug v. miuister of pensious 3 w.p.a.r. 1449, at p.1466. 80. supra, pp.108-11l, 114-116. 81. starr, nuttall aud bourne v. miuister of peusi01is[1946] 1 k.b. 345, at p.353. 82. pro leo 2/3709. the treasury complained of the growing resort to specialists as early as may 1947: b.). grey to sir a. napier, 13 may 1947. 83. shore v. miuister of pmsious 3 w.p.a.r. 1867. 120 the uses of power palley's judgment on starr,84 the general tenor of denning's judgments on the substantive question of entitlement was not very liberal. it is true that in ministry of pensions v. chenneu85 he took a broad view of causation in defining "a war risk injury", but his rulings on that and cognate issues closely followed the settled case law on workmen's compensation and in one case his interpretation was narrower than the court of session.86 later, on the important question of attributability/ aggravation he declined to accept the argument that ex hypothesi the ministry could not disprove it in diseases of unknown aetiology whereas edmund davies j might have done so; he imposed on the ministry a lower standard of proof in cases outside article 4(3) than that same judge did,87 and although he was vigilant to detect fallacies in tribunals' reasoning and deficiencies in evidence, he generally remitted such cases rather than reversing the decision,88 while even his insistence on unanimity turned out to be a two-edged sword. denning showed himself aware that too great an eagerness to pounce on minor flaws might be counter-productive: "i have noticed that sometimes the minister concedes aggravation in a borderline case on compassionate grounds, when he might have refused it; and the tribunal sometimes makes an award by stretching a point in the man's favour when if the matter were pressed to its logical conclusion they might be forced to say it was neither attributable to nor aggravated by war service. so, if the dilemma were forced too far, it might work out disadvantageously to the men.,,89 the men, evidently, were to have what the statute and warrant entitled them to, but no more. it seems likely that left to their own devices, some tribunals would have given them rather less. ashby's views on key questions were narrower than the ministry's own,90 and it is unlikely that many tribunals would have applied themselves rigorously to determine whether the burden and standard of proof demanded of the ministry was satisfied by the evidence; rather they would have 84. [1946] k.b. 345; supra p.96, n.7. 85. [1946] k.b. 250. 86. staynings v. minister of pe'lsions. in minister of pensioils v. higham [1948] 2 k.b. 153 he agreed to prefer the scottish decision in ba/jantyne v. minister of pensions [1947]1 all e.r. 347. this was one of several embarrassing divergencies between the two countries. a few weeks earlier, denning had made general observations on the treatment of scottish decisions in pensions cases, since he had been told that 'forum-shopping' had been occurring as a result of the differences: "i lay down for myself, therefore, the rule that, where the court of session have felt compelled to depart from a previous decision of this court, that it is a strong reason for my reconsidering the matter; and if on reconsideration i am left in doubt of the correctness of my own decision, then i shall be prepared to follow the decision of the court of session, at any rate in those cases when it is in favour of the man, because he should be given the benefit of the doubt." nevertheless higham is the only case in which denning did change his own view to conform to a scottish decision and in annstrong he declined to do so. 87. supra, pp.w8-111, 114-116. 88. most of the remitted cases eventually \vent against the claimant. 89. matthews v. minister of pensiolls 3 w.p.a.r. 1993. 90. pro lco 2/3702: correspondence re "war risk injury" and his decision in saffell's appeal; 2/3718: coldstream to rieu, 27 november 1946 (out of time appeals). 121 the denning law journal weighed the medical opinions in a commonsense sort of way in the light of the medical member's advice. but denning's idea of equal justice for all inevitably deprived some of a pension, and the reports make clear his anxiety that although the claimant must have the benefit of any reasonable doubt, such doubts should be eliminated by further evidence where possible rather than actively sought out in order to assist him. it is instructive also to follow the impact of denning's decisions on the departments responsible for the pension legislation and the tribunals. the ministry of pensions certainly grew dismayed by his generosity in admitting appeals out of time and were sometimes critical of his approach,91 while even the lord chancellor's office, which followed its invariable practice of defending judges against criticism from other departments, evidently found james and revely unpalatable.92 nevertheless, once it had become clear that he was not seeking openings to admit claimants to pensions through technical imperfections in the decision-making and appeal process, they were readily reconciled to him. the development of the "signpost case" strategy in particular shows that there was more co-operation than confrontation between the judge and the ministry, certainly more than a cursory reading of the cases reported in the general reports might suggest. however, although experience may have modified the view that a form of appeal which allowed a single judge to make law which was effectively unappealable was a mistake, it may be significant that the model was not adopted for other new tribunals set up around this time.93 denning's achievement in pensions cases, therefore, was principally to impose on an informal, expert tribunal, the traditional model of due process developed by the courts of law, and to ensure by unprecedently close supervision that the claimants received the "justice" to which they were entitled. what he did not do was stretch and bend the law so as to favour the claimants in their fight for pensions. there is an impressive coherence and consistency in his pensions decisions which shines out in the poverty of english administrative law in the 1940s and deserves recognition. 91. pro lco 2/3714. 92. [\947] \ k.b. 767; 3 w.p.a.r. \573. pro lco 2/37\4: rieu's file notes 3 july 1947; 23 july 1948. 93. pro lco 2/37\4: g. p. coldstream to sir a. napier, 9 september \947. cj the lands tribunal act 1949; gas arbitration act 1948; iron and steel act 1949; medical act 1950; courts-martial appeals act 1951. 122 1 denning law journal 2016 vol 28 special issue pp 1-3 editorial introduction john hatchard guest editor hephzibah egede guest editor we are pleased to introduce a special edition of the denning law journal. it is a themed edition entitled: “energy: contemporary legal issues in the oil and gas sector.” this special edition contains papers from the conference proceedings of the university of buckingham centre for extractive energy studies (ubcees) as well as contributions from members of the advisory board. the papers are structured under the following sub-themes: 1. law and governance 2. risks, change and uncertainty 3. current developments in law and emergent legal thinking 4. perspectives of justice and legal governance these are themes that lord denning identified with in his long career as a progressive reformer. he passionately canvassed for the law to keep abreast with societal changes. in “the way of an iconoclast”1 he called for the “law to be saved from stagnation and decay”.2 the evolving global energy industry also requires iconoclastic legal thinking as it navigates its way through interesting and volatile times. the edition begins with an illuminating comment by lamaster and hammerson on the brexit referendum. their article discusses the potential risks and uncertainties that the brexit referendum has created in the uk oil and gas industry. they debate whether the referendum will necessitate a radical departure from the current legal framework. they argue that a second referendum in the form of “a scottish independence referendum” may be the catalyst that intensifies further uncertainty in the sector. holland’s article is also developed on the theme of risks, change and uncertainty in the energy sector. he considers whether the decrease in global oil prices has any impact on decommissioning securities. it explores the impact that the current market conditions has had on request for data 1 lord denning, “the way of an iconoclast” (1959) 5(2) s.p.t.l. 77. 2 ibid, 89. editorial introduction 2 and scrutiny of operator’s projections. he forecasts the heightened risks of decommissioning disputes particularly with regard to how “net value” and “net costs” are to be computed. he considers the role that the adr mechanism of expert determination will play in resolving these disputes. mceldowney and salter debate current and new developments in energy taxation. their article focuses on the relevance of environmental taxation in combating climate change. they point to the fact that unlike other forms of taxation, environmental taxation does not only raise revenue, but it also seeks to change behaviour and to promote environmental protection. they argue that the full potential of environmental taxation can only be realised if the business community (and the public at large) buy into the concept of green investment. sundaram’s article discusses current legal developments and emergent thinking in offshore pollution compensation. it queries why there is a lack of a cohesive legal framework on civil liability claims for incidents arising from offshore platforms. this is in contrast to the comprehensive regime that governs vessel-source oil exploitation. the article reviews current national and regional regimes as a basis for the development of a new international regime for liability for offshore oil and gas exploitation. hatchard’s article is developed on the theme of law and governance in the energy sector. it considers the developing strategy of the “art of persuasion” and how it has been utilised to tackle the supply side of transnational corruption. it presents alstom sa as a case study on how to persuade even the most powerful corporate entities to commit to good governance and to “reveal all” about the payments of bribes to obtain or retain business. the article argues that persuasive threats, such as the threat of debarment, are now key to tackling transnational bribery. finally, egede’s article is themed on perspectives on justice and legal governance. it considers the role that african “social ordering” norms can play in the development of an african lex petrolea. it interrogates whether these indigenous rules have attained the status of grundnorms as canvassed by some african scholars. it queries why the recent study of the african petroleum producers association on the standardisation of petroleum rules in africa failed to take into account these indigenous rules. it utilises the ‘two publics’ model developed by ekeh to explain why the current framework of petroleum governance developed on received western law has been ineffective in tackling the underlining reasons for resource conflicts in sub-saharan africa. we would like to thank prof. susan edwards, dean, buckingham law school, dr. carol brennan and dr. james slater (the editors of the denning law journal) for their support and assistance towards the successful production and launch of this special edition of the denning law journal. editorial introduction 3 our thanks also to michael pollard, wilfred ferguson and nkechi ugwu (the student editors for this special edition) who helped with the proofing process. we hope this special energy edition of the denning law journal will make for interesting reading and contribute to the further development of energy law. buckingham law school november 2016 human rights, 'arranged' marriages and nullity law: when do 'force', parental 45 denning law journal 2015 vol 27 pp 45-76 magna carta 1215 to north korea 2015: advancing the ideal of legal restraints on governmental power* the hon michael kirby ac cmg  i magna carta 1215 of tosh and metaphors on the 800 th anniversary of the reluctant acceptance of a charter of rights and obligations by king john of england in 1215, many books have been written, essays published and lectures given, examining the relevance of this step in the long constitutional history of england (if any) and for the world of today. some commentators have doubted any relevance. lord [jonathan] sumption, a judge of the supreme court of the united kingdom, and an expert in mediaeval english history, has rejected any significance in what sounds to australian ears as a somewhat condescending remark. “high minded tosh”, he called it. 1 geoffrey robertson qc, of doughty street chambers, london, via epping in sydney, expressed somewhat similar views, but more politely. 2 michael beloff qc, in this journal, 3 has traced every case of the past century in which magna carta had been cited to reach a conclusion that its actual contemporary relevance was small. other * text for an address given at the university of buckingham, 2 october 2015.  hon lld (buckingham). justice of the high court of australia (1996-2009); special representative of the secretary-general of the united nations for human rights in cambodia (1993-6); president of the international commission of jurists (1995-8); chair of the united nations commission of inquiry on human rights violations in the democratic people‟s republic of korea (2013-2014). 1 lord sumption, „magna carta – then and now‟, address to the friends of the british library, london 9 march 2015. 2 geoffrey robertson qc, „the magna carta inheritance‟, address to the public library of new south wales, sydney 3 september 2015. 3 michael beloff, „magna carta in the twentieth and twenty-first centuries‟ [2015] 27 denning law journal 1. magna carta 1215 to north korea 2015 46 writers and lecturers were willing to find a greater materiality in the charter for the world of today. 4 self-evidently, if we seek to draw a direct line of causation between the charter of king john and contemporaneous realities, we will be deceiving ourselves. i am not aware of any serious observer who takes such a literalistic view of the considerations of history. certainly, i do not. but those who perceive a link are generally thinking and writing in allegorical terms. they appreciate, as i do, a poetic or grand theme. it concerns the struggle of people with lesser power to claim rights against their rulers, who enjoy great power over their persons, property and happiness. if that larger view is taken, the dramatic circumstances in which the magna carta of 1215 was extracted from king john, becomes a kind of symbol for what was to follow. lord scarman, reflecting on the way the new world order of universal human rights was built after 1945 pointed, correctly, to the predominant influence played in the language and practice of the united nations charter, the universal declaration of human rights and other human rights treaties, of anglo-american lawyers. in the enormous power of the united states of america (and the united kingdom) at the end of the second world war, they took the lead in designing the institutions and laws for the world that would follow. naturally enough, they were aware of the history by which english-speaking peoples had asserted their rights against successive rulers. in that history, magna carta was one of the means that advanced the idea that governmental power should be limited. and that the limits should be expressed in an instrument that might be invoked whenever the ruler forgot it or failed to recall how it was secured. it is in this sense that it is relevant today to start a journey to pyongyang in north korea from the meadow at runnymede in england. european charters of rights in an important case 5 concerning the requirements of the australian constitution, justice isaacs (later chief justice and governor-general of australia), and a great lawyer and judge, declared that the magna carta of england was the “great confirmatory instrument…which is the ground work of all our constitutions”. in one clause of the magna carta of 1215, isaacs detected “three basic principles, namely, 1)… every free person has an inherent individual right 4 for example anthony arlidge and igor judge, magna carta uncovered (hart 2015). 5 ex parte walsh and johnson; in re yeats (1925) 37 clr 36, 79. the denning law journal 47 to his life, liberty, property and citizenship; 2) his individual rights must always yield to the necessities of the general welfare at the will of the state; 3) the law of the land is the only mode by which the state can so declare its will.” whilst magna carta (as will be shown) has been treated as fundamental, there were, before 1215, numerous instruments that declared the rights of subjects vis a vis their rulers. many kings and nobles in the second millennium of the christian era granted charters to their subjects and tenants in terms that were not dissimilar to the provisions of the magna carta of 1215 (mc 1215). 6 indeed, it has been suggested that the english charter reflected the influence of spanish predecessors. 7 at about the same time as it was granted in england, in 1222, the king of hungary granted a very similar charter. 8 moreover, even in england, the charter of 1215 had a number of predecessors dating back before the norman conquest of 1066 to anglo-saxon times. the norman conqueror (william i) himself issued a “brief but stately charter which is still preserved by the city of london”, 9 promising respect for the laws of “king edward‟s day”. 10 william promised that “i will not endure that any man offer any wrong to you. god keep you.” 11 when henry i acceded to the english crown in 1100, his first act was to issue a formal charter, called the charter of liberties, promising to stop certain oppressive practices that had grown up. his reign coincided with conflicts in many kingdoms between national monarchs and the universal church. at issue were the competing claims respectively of the church and the king to select the leading bishops, often the most powerful officials of the kingdom. to some extent, this dispute in henry i‟s reign was addressed in the concordat of worms in 1122. many of the greatest minds of the middle ages in europe devoted their attention to this issue. it raised the nature of kingship, the authority of royal power and law, and the limits that should be placed on the might of 6 theodore frank thomas plucknett, a concise history of the common law (4th edn, london, butterworths 1948) 25. 7 henry altamira in magna carta commemoration essays, quoted theodore frank thomas plucknett, a concise history of the common law (n 6) 25 n 1. 8 ibid 25; noting that it had been translated in andré sayous, histoire général des hongrois (athenaeum 1900) 116-121. 9 william stubbs, selected charters in ibid 13; anthony arlidge and igor judge, magna carta uncovered (n 4). 10 st edward the confessor, king of england (1031-1066). 11 theodore frank thomas plucknett, a concise history of the common law (n 6) 13. magna carta 1215 to north korea 2015 48 temporal rulers. 12 in that dispute lay the seeds of contemporary conflicts between the claims made for international law and universal human rights (on the one hand) and the sovereign rights of nation states, later embellished by claims of democratic legitimacy which the international order often appeared to lack. 13 the succession in england of henry ii, in 1154, saw the reconfirmation of henry i‟s charter of liberties of 1100. henry ii‟s reign was one that witnessed great legal developments. important for present purposes is the reminder that, well before the charter in 1215, english kings had been voluntarily and involuntarily subscribing to charters, promising to respect pre-existing laws. in that sense, the events of 1215 were not unprecedented, either in england or in other european states. the english charter of 1215 what was novel about the charter of 1215 was the rebellious and dangerous circumstances in which it came about; the detail and particularly of the demands of the english nobles who extracted it from the king; and the radical means of enforcement to which the king was forced to agree. john was an energetic monarch. he travelled extensively throughout his kingdom attempting to modernise what we would now describe as his administration. however, he was ill-tempered: making enemies easily. his political objectives included reclaiming territories in france that he saw as belonging to his paternal lineage. for that purpose, he demanded taxes and other burdens from the leading families of england. they challenged these demands. the disagreement came to a head on 12 june 1215. the leading barons met the king at runnymede. john claimed indisposition by reason of gout. the barons would have none of this. they refused to wait on him in his privy chamber. when he was brought on a chair into their presence at runnymede, they did not stand. instead, they presented him with their charter. they insisted that he seal it. he did so with ill grace. however, in the event, mc1215 was actually in force for only 9 weeks. within that time, the king sent emissaries to pope innocent iii in rome seeking absolution from his promises, on the basis that his will had been coerced, contrary to his conscience. 14 12 ibid 14-15. 13 alferd aman, the democratic deficit: taming globalization through law reform (new york, nyu press 2004) 133, 163. 14 told in david carpenter, magna carta (london, penguin 2015); anthony arlidge and igor judge, magna carta uncovered (n 4); james clarke holt, the denning law journal 49 the charter was written in latin, in continuous sentences. subsequently, it was divided into paragraphs (usually called chapters). these set out the obligations extracted from john. there were 61 such chapters in all. a number of them repeated clauses of the charter of liberties of henry i. some of the added chapters dealt with the regulation of the use of the forests. these were later to be hived off into a separate forest charter. it was when this happened in 1217 (to be described later) that the non-forest chapters were for the first time described as the great charter (magna carta) (mc1217). 15 for the moment it is enough to quote the chief chapters of mc1215 that still have relevance to the issues i wish to explore. they were: 16 “(17) ordinary law suits („common pleas‟) shall not follow the royal court around, but shall be held in a fixed place… (39) no free man shall be seized or imprisoned, or stripped of his rights of possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his peers or by the law of the land. (40) to no one will we sell, to no one deny or delay right or justice. … (45) we will appoint as justices, constables, sheriffs or other officials, only men that know the law of the realm and are minded to keep it well.” the last mentioned chapter (45) dropped out of the later reaffirmations of the mc. so did another chapter, which was the most bitter pill of all for king john to swallow. this was the so called “security clause”, in chapter 61. it obliged local county sheriffs throughout england to take an oath to magna carta (cup 2008); nicholas vincent, magna carta: the foundation of freedom 1215-2015 (2nd edn, third millennium 2015). see review of dan jones, magna carta, the making and legacy of the great charter (head of zeus 2014) by frederick mount, „back to runnymede‟ (2015) 37 london review of books 15. 15 james spigelman, „magna carta in its mediaeval context‟ (2015) 89 australian law journal 383, 385. 16 mary arden, „magna carta and the judges: realising the vision‟ (2015) 27 judicial officers bulletin 49, reproduced from mary arden, common law and modern society: keeping pace with change (oup 2015); originally published (2012) 10 the judicial review 419. magna carta 1215 to north korea 2015 50 the charter and to procure the selection of local knights to afford an assurance that its promises would be obeyed. it created a council of 25 members with power to remedy any breach of the promises committed by the king. it authorised the council to seize the king‟s castles, lands and possessions and made a number of other provisions to prevent, or discourage, royal evasion. little wonder that, after attaching his seal to these provisions, john was described by one unsympathetic observer as “gnashing his teeth, scowling with his eyes and seizing sticks from the trees… and gnawing them to break them”. 17 the ink of the seal was not dry but john sent his petition to the pope in rome. because john had settled his disputes with rome and submitted to papal authority in order to secure his support, 18 the result was rebellion. a message was sent to a french prince (later to be king louis viii of france) inviting for some barons to invade england and to assume the english crown. he accepted the invitation and embarked. but, providentially, at that moment, john died and his son (henry iii) began his long reign (1216-1272). wisely counselled by his regent, 19 john‟s successor reissued and confirmed the charter in 1216. however, it was reduced from 63 to 40 chapters. the security clause disappeared never to reappear. moreover, a new provision required that the king would not impose scutage without the “counsel of the realm”. 20 to the idea behind this promise may be traced the constitutional principle (as it later developed) that no taxation should be levied on those liable to tax, save by their acquiescence, signified in the legislature. later history of magna carta the infant king henry iii reissued the promises once again in a 1217 version, by this time known as magna carta. it was, on that occasion, not a concession of a weak monarch but a general statement of good governance promulgated on the new monarch‟s behalf, to confirm and 17 anthony arlidge and igor judge, magna carta uncovered (n 4) 81. see also james spigelman, „magna carta in its mediaeval context‟ (n 15) 385. 18 including by the appointment of stephen langton as archbishop of canterbury after a five year delay. john not only paid homage to the pope, acknowledging him as his feudal overlord. he also later took a vow as a crusader to further extend papal protection for his crown. 19 william marshal, earl of pembroke. see james spigelman, „magna carta in its mediaeval context‟ (n 15) 386. 20 a tax or levy on knights in substitution for military service. it was not finally abolished in england until 1660 (12 car 2, c 24 (1660)). the denning law journal 51 acknowledge the loyalty of those who supported the notions of governance that it contained. when he came of full age in 1225, henry iii once again reissued and confirmed the magna carta. this time it was authenticated by his own seal, rather than that of his regent. one added chapter prohibited the grant of freehold land to the church on condition that the donor be readmitted promptly as tenant. any such arrangement, in the future, would result in forfeiture of the land to the crown. thus began the legislative response to tax avoidance schemes, forms of which are still with us. 21 henry iii reconfirmed mc about a dozen times during his reign. eventually he did so in a form that would bind in all his successors. 22 although every monarch in england who made great promises sometimes broke them, the existence of magna carta provided a criterion for criticism, civic discourse and occasional rebellion. effectively, the many successive versions of the charter meant that in england “the king is and shall be below the law”. 23 eventually, the 1297 text became the definitive version in england when it was entered as the first item in the official “statute roll” of edward i by this time, it was viewed as “restorative and demonstrative, not constitutive”. it was expressing time honoured rules that pre-existed the legal text. in the same way today, the universal declaration of human rights (and later human rights treaty law) is taken to express the pre-existing fundamental rights of all human beings that emerge out of their very nature. in theory, these are rights not granted by the instrument; simply recognised, often with provisions contemplating enforceability. the mc1215 was expressed in terms of a “grant” of rights by the king, issued on the advice (“counsel”) of 11 ecclesiastics, 16 barons and unnamed (faithful subjects). this language of “grant” could conceivably contemplate the possibility of withdrawal or revocation. however, later, the permanent form of magna carta of mc1225 (and the settled form of mc1297) were different in two important respects. they extended the promises to all “free men” and spoke of the relevant “liberties” not merely as having been “granted” but as “given and granted”. the additional word “given” suggested a free gift by the monarch; something that could perhaps not be revoked. 24 21 james spigelman, „magna carta in its mediaeval context‟ (n 15) 387. 22 mc1237. see ibid 387. 23 frederick pollock and frederic william maitland, the history of english law before the time of edward i (2nd edn, cambridge 1911) 173. see james spigelman, „magna carta in its mediaeval context‟ (n 15) 387. 24 james spigelman, „magna carta in its mediaeval context‟ (n 15) 389. magna carta 1215 to north korea 2015 52 summing up the essential features of the magna carta, viewed at the end of the thirteenth century in which john had first granted it, jj spigelman describes its essential ideas for the emerging strong system of centralised government in the english kingdom. these features were to contribute, in the centuries that followed, to the comparative political unity, economic prosperity; and institutional strength that were eventually to become the foundations of the largest empire that the world has seen: 25 “first, the acts of the king were not simply personal acts. the king‟s acts have an official character and, accordingly, are to be exercised in accordance with certain processes. secondly, the charters affirm, by their very nature and the circumstances of their issue and confirmation, the obligation of the king to consult the political nation on important issues. thirdly, the charters restrict the exercise of the king‟s feudal powers – subsequently transmographied into prerogative powers – in accordance with traditional limits and conceptions of propriety. fourthly, the king cannot act on the basis of mere whim. the king is subject to the law and also subject to custom which was, during that period in the process of being hardened into [the common] law. fifthly, underlying [the] charters is the proposition that the king [in the part]… had acted contrary to established custom, and to some degree, contrary to the law [thereby requiring repair]. sixthly, the king must provide a judicial system for the administration of justice and all free men [were entitled to due process of law].” enduring impact by the time of the confirmation in mc 1297, it had passed into a generally accepted backdrop for the english law. other practical steps were taken in england to strengthen the development of the judge-made common law. these grew, in part, out of the promise of mc 1215 that “common pleas” (or ordinary law suits) would not follow the royal court around, as in anglo-saxon and early norman times, but would be held in a fixed place. this idea gave a measure of stability, predictability and institutional focus for the law-making machinery of the kingdom, essential to the growth of the rule of law and the encouragement of possessions and trade. doubtless influenced by this development, in 1218, salaries were 25 ibid. the denning law journal 53 introduced for the senior justices of england for the first time. clearly, this move was intended to combat corruption. but it also had the consequence of improving the quality of the judges and promoting a permanent professional judiciary that would evolve, and eventually express, notions of independence and impartiality. 26 the sharing of royal power through the king‟s council was a response, in part, to a succession of infant monarchs needing regents. in part, it grew out of the obligations imposed on the king by magna carta to “seek counsel” on particular royal and administrative conduct. during the reign of henry iii, a judge and writer, henry de bracton produced a remarkable book de legibus et consuetudinibus anglie (on the laws and customs of england). he did this for the purpose of instructing the newly emerging judicial institution. 27 magna carta, and the strength and stability that it contributed to governance in england, encouraged the grand design of expounding rationally the whole of the english law as it was known in the 1220s and 1230s. such an encyclopaedic attempt would not be repeated for five centuries. sir edward coke was a highly influential judge who later reminded james i that he was under the law. but he also asserted that the judges could overturn acts of parliament that were contrary to “common right and reason”. 28 as a general proposition, this notion has remained controversial. 29 but it was to be developed, in a later age, into more modest notions of judicial review including for constitutional validity, that came to be highly influential in federal countries. 30 in consequence of coke‟s views, and the impolitic fashion in which he expressed them, james i removed him from office as a judge. he spent seven months in the tower of london on a charge of treason. his papers were confiscated. complaints were made that he was attempting to give 26 ibid 395. 27 john h baker, „bracton‟ in alfred william brian simpson (ed), biographical dictionary of the common law (london, butterworths 1984) 69, 70. 28 dr bonham’s case (1610) 8 co rep 107, 118a; [77 er 638, 652]. 29 durham holdings pty ltd v state of new south wales (2001) 205 clr 399; [2001] hca 7. 30 marbury v madison (1803) 5 us 1 cranch 137. discussed michael coper, „marbury v madison (1803)‟ in michael coper, tony blackshield and george williams (eds), the oxford companion to the high court of australia (melbourne, oup 2001) 453. applied in r v commonwealth court of conciliation and arbitration; ex parte whybrow & co (1910) 11 clr 1. magna carta 1215 to north korea 2015 54 the judiciary “a superintendency over the government itself”. 31 however, at least coke was not executed. bereft of office he turned his attention to legal writings. these included the compilation of his institutes of the laws of england. they were to be highly influential in later generations, particularly in the united states of america when it separated from england after the revolution that began in 1776. magna carta did not figure strongly in coke‟s writings. as a sign of those times, shakespeare (writing a little earlier) did not even see fit to include reference to the execution and annulment of mc1215 when he wrote his history of king john. 32 the real credit for the revival of knowledge about, and interest in, magna carta can probably be traced to the writings of sir william blackstone, more an a century after coke. blackstone‟s commentaries on the laws of england was influential because of two features. first, it was written in a grand style that was meant to be read by informed laymen, whereas coke had basically written for lawyers alone. secondly, it coincided exactly with the loss of the american colonies and the severance of their link to the english judiciary. after that severance, more than was the case in england, australia and continuing colonies, blackstone‟s works served as the basis of legal education. 33 he was a strong advocate for what he saw as the checks and balances of english constitutionalism. in blackstone‟s story of the constitutional history of england, magna carta, the protestant reformation, the ultimate ascendancy of parliament (that led to the execution of charles i); the glorious revolution of 1688; and the bill of rights that followed, were all presented attractively as the causes that produced “a constitution with perfect checks and balances”, by the time of the publication of his fourth volume in 1769. 34 his encomium on the carefully calibrated limits upon governmental power was not only useful in the follow-up to the american revolution. in a real sense, blackstone described the features of constitutionalism that had attracted 31 attributed to lord ellesmere. see john h baker, „sir edward coke‟ in alfred william brian simpson (ed), biographical dictionary of the common law (n 27) 117. 32 a point noted by james spigelman, „magna carta in its mediaeval context‟ (n 15) 383, who claims that victorian theatre proprietors added a „runnymede scene‟ to repair shakespeare‟s inadvertence. 33 gareth jones, „sir william blackstone‟ in alfred william brian simpson (ed), biographical dictionary of the common law (n 27) 57. 34 ibid 61. the denning law journal 55 the american colonists and inspired them to write their own constitution, expressing a form of government that enshrined checks upon power. 35 chief amongst the checks were protection for a strong judiciary; incorporation of basic rights; and acceptance of the judicial umpire in any clash between the branches of government. blackstone‟s text afforded the most elaborate history on magna carta. it was full of references to primary sources. suitably enough, in an engraving from the author‟s portrait of 1775 by thomas gainsborough which accompanied the publication of his commentaries, the seal of king john is clearly shown in a folded document in his right hand, intended to represent “an original magna carta”. 36 it is given pride of place over the commentaries, that appear in the author‟s left hand. the idea of a super-constitutional instrument such as magna carta not only encouraged the american revolutionaries to fashion a written constitution that prevailed over all other laws. it also affected the dominions and erstwhile dominions, of the british crown as they adopted their post-colonial written constitutions: canada in 1868. australia in 1900. south africa in 1910. the irish free state in 1923. eventually, the same movement spread to non-settler countries beginning with india in 1950. as the years passed, many countries in the “new commonwealth” witnessed the invocation of the magna carta idea. in india, for example, a question arose as to the ambit of the express power under the indian constitution to amend the text of the document. was every provision subject to formal amendment? or were some provisions to be taken as sacrosanct: so fundamental to the overall design that they could not be altered by a mere voting majority? the question presented in india was whether parliament, by the facility of amendment, enjoyed the constitutional power specifically to abridge the stated fundamental rights. in golak nath‟s case, 37 a majority of the supreme court of india concluded that there were limits on the amending power. 35 ian doolittle, „william blackstone and william prynne: an unlikely association?‟ in wilfred prest (ed), blackstone and his commentaries: biography, law history, (oxford, hart publishing 2009) 56. 36 john h baker, „iconography, likenesses, portraits and engravings‟ in wilfred prest (ed), blackstone and his commentaries: biography, law history (n 35) 229, 232. see also wilfred prest, „images, statues and stained glass‟ in wilfred prest (ed), blackstone and his commentaries: biography, law history (n 35) at 238, 239 who describes a statue by john bacon in the codrington library, all souls‟ college, oxford. another statue appears in washington dc. 37 ic golak nath v punjab (1967) 2 scr 762; (1967 asc 1643). see also kesavananda v kerala (1973) asc 1461; (1973 supp scr 1). magna carta 1215 to north korea 2015 56 that great judge, justice khanna, concluded that the amending power could not do away with such fundamental promises as the basic structure or framework of the constitution: such as the republican nature of the state; obedience to the rule of law; and availability of judicial review. however, the fundamental rights provisions were held to fall outside this protected zone. justifying this approach, the respected indian jurist, h.m. seervai, in his great text, constitutional law of india, wrote: “… [t]he possession of power [to amend] was one thing, its exercise another. in theory, the british parliament possessed the power to repeal great charters of liberty like the magna carta (1215), the bill of rights (1688) and the act of settlement (1700) as easily as it could repeal a dog act, but these great charters have remained unchanged.” 38 a “fundamental” rule of constitutionalism may be stated as in magna carta. yet, over time, ideas change and even “fundamentals” expressed in earlier times need alteration and renewal. ultimately, the power over the content of law (including constitutional law) must generally rest with the people who are governed by that law. the people, or their representatives, must enjoy the last say. magna carta global the text of magna carta was not, as such, generally incorporated as equivalent to statute in the far flung colonies of the later british empire. however, many of the basic principles expounded in the charter profoundly influenced the thinking of the rebels who overthrew british rule in north america. particular ideas of the mc1215 were influential in the language of several clauses of the united states constitution. thus, the establishment of a permanent judiciary, sitting in fixed places and not itinerant (mc1215 c 17), is expressly reflected in the design of article iii of the united states constitution. the specific prohibition on the seizure and imprisonment of persons and the violation of their rights or possessions (mc1215, c 39) is reflected in amendment vi of the united states bill of rights: providing for trial by jury in criminal proceedings and, in amendment vii, for civil proceedings and respect for the rules of the common law. the promise that justice would not be sold, denied or delayed (mc1215, c 40), is reflected in the right to 38 hoemasji maneckji seervai, constitutional law of india – a critical commentary (3rd edn, bombay, nm tripathi 1996) 3115. the denning law journal 57 speedy and public trial expressed in amendment vi of the united states bill of rights. the promise of knowledgeable and honest judges and officials (mc1215 c 45) is reflected in article ii sec 1 of the united states constitution. the retention of the residual powers to the people (in amendments ix and x) of the united states bill of rights reflects the idea of restrictions on the plenitude of royal powers throughout magna carta. so does the notion, central to the united states constitution (and others that later followed it), that governmental power is subject to the constitution, which all must obey and whose benefits and liberties all may enjoy. subsequent national constitutions in former british colonies and dominions, copied aspects of both the united states and british constitutional arrangements. the australian constitution, like the canadian earlier, was a “successful combination of the british system of parliamentary government containing an executive responsible to the legislature with american federalism”. federalism itself is a system of divided and limited powers, springing ultimately from an idea central to divided powers, of magna carta. in many british colonies, imperial legislation expressly provided for english statues to apply, unless the statute was not suitable to local conditions 39 or where the imperial statute made it plain that its terms were intended only to apply in what later became great britain and ireland. 40 the theory was that british settlers took the common law with them to the british colonies. 41 that legal system, its doctrines and principles, were described as the “inheritance of the british race, and as such they became the common law of australia”. 42 magna carta, certainly after mc1297, was admitted to the “statute roll” of england and was treated in some colonies as equivalent to imperial legislation. yet like other such legislation, it could usually be overridden by valid colonial statutes and certainly by later imperial statutes and acts of the legislature, as long as they were passed in accordance with the “manner and form requirements” prescribed. 43 many of the detailed provisions of magna carta were not “suitable to the conditions” of the colonies, necessarily established five 39 see eg australian courts act (9 geo iv, c 83 (imp)). cf mitchell v scales (1907) 5 clr 405 (griffith cj) and (barton j). 40 jolly v suti (1899) 1 n and s 143 (supreme court tasmania); glasson v egan (1866) 6 scr (nsw) 85. 41 skelton v collins (1966) 115 clr 94. 42 ibid (windeyer j); see also r v maloney (1836) legge 74 (nswfc). 43 harris v danes (1885) 10 app cas 279; r v m’carthy (1873) 4 ajr 155 (vic fc). magna carta 1215 to north korea 2015 58 and more centuries later. however, concerning the principles of general importance, the common law would usually treat them as inherited and binding principles of law of general application. the bias of the common law against arbitrary official intrusion upon the person or property of an individual and the centrality of access to the law to vindicate rights has been vigorously upheld by the courts in commonwealth countries centuries after magna carta was written: excepting only where valid legislation provided to the contrary. 44 sometimes, for the removal of doubt, local legislatures have enacted laws to make it clear that magna carta in particular chapters is, still to be treated as part of the local law unless clearly and expressly overridden by a local statutes. 45 nevertheless, for the most part, the great charter operates where it does today, as a symbol of large constitutional principles: limited governance; legal control over the ruler; responses to abuses of power; obedience to the rule of law; access to independent, professional judges; observance of divided and separated governmental powers; and respect and obedience to the judge-made common law. a society living under these principles is different from other societies in the world today. especially, it is very different from the society that has emerged in the democratic people‟s republic of korea (dprk), to which i now turn. ii north korea 2015 mandate of the coi it is a long way in time and space from runnymede in the england of king john, in 1215, to pyongyang in the time of kim jong-un, in 2015. yet parallels exist between these times and places that need to be noticed. king john was the comparatively recently enthroned monarch of england. his family had entered that kingdom earlier, accompanied by a large armed force from a then much more powerful and influential overseas kingdom, france. the family overthrew the local leaders with the foreign help. the ordinary people still dreamed nostalgically of an earlier, purer kingdom. like king john, kim jong-un is a highly autocratic ruler. kim causes opponents to be charged with treason and executed. he has 44 a v new south wales (2007) 230 clr 500; [2007] hca 10. see also kuru v new south wales (2008) 236 clr 1, 6 [12]; [2008] hca 36; new south wales v ibbitt (2006) 229 clr 638; [2006] hca 57. 45 see eg imperial acts application act 1984 (qld), s 5 and sch 1 (preserving magna carta 1297). the denning law journal 59 resisted demands for the improvement of his regime. he abhors challenges to his power. in the case of kim jong-un, the immediate pressure for change in his regime came not from a council of local personalities but from a council comprising representative of the entire world: the human rights council (hrc) of the united nations. on 21 march 2013, the hrc, in virtual unanimity, proceeded to establish a mechanism to call kim jong-un to conform with basic principles of justice, good governance and universal human rights. 46 in consequence of the hrc‟s resolution, a commission of inquiry (coi) was set up to investigate “the systematic, widespread and grave violations of human rights” in north korea. the formal title of the country over which kim jong-un presides, as supreme leader, is the democratic people‟s republic of korea (dprk). however, as the coi was to discover and report, it is neither a democratic country with free and fair elections; nor one that engages its people in their own governance; nor does it have the hallmarks of a modern republic. instead, it is, and was, a closed land, often described as a “hermit kingdom”. it is like no other land in today‟s world – an absolute monarchy where a form of worship of the ruler is obligatory. the chief features of the country are set out in the ultimate conclusions of the coi: 47 “80. systematic, widespread and gross human rights violations have been and are being committed by the [dprk] its institutions and officials. in many instances, the violations of human rights found by the [coi] constitute crimes against humanity. they are not mere excesses of the state; they are essential components of a political system that has moved far from the ideals on which it claims to be founded. … 81. [dprk] displays many attributes of a totalitarian state: the rule of a single party, led by a single person, is based on an elaborate guiding ideology that its current supreme leader refers to as “kim il-sungism kim jong-ilism”. supressing all political and religious expression that question the official ideology, and tightly controlling citizens‟ movement and their means of communication with each other and with those in other countries. … 46 unhrc resolution a/hrc/res/22/13. 47 un/a/hrc/25/63/[80]-[83]. see also commission of inquiry on human rights in the democratic people‟s republic of korea (coi) report a/hrc/25/crp.1, 365-366 [1211]-[1214]. magna carta 1215 to north korea 2015 60 82. the state‟s monopolisation of access to food has been used as an important means to enforce political loyalty. … 83. the keystone to the political system is the vast political and security apparatus that strategically use surveillance, coercion, fear and punishment to preclude expression of any dissent. public execution and enforced disappearance to political prison camps serve as the ultimate means to terrorise the population into submission. … [t]he authorities engage in gross human rights violations so as to crack down on “subversive” influences from abroad. … persons who are forcibly repatriated from china are commonly subjected to torture, arbitrary detention, summary execution, forced abortion and other forms of sexual violence.” in light of these findings, the coi declared that the human rights situation in dprk was “intractable” and that an effective response was imperative. 48 it made a long series of recommendations, including many addressed to dprk itself, calling on it to: 49 “undertake profound political and institutional reforms without delay to introduce genuine checks and balances upon the powers of the supreme leader and the workers‟ party of korea; such changes should include an independent and partial judiciary, a multi-party political system and elected people‟s assemblies at the local and central level that emerged from genuinely free and fair elections; reform of the security sector… limiting the functions of the korean peoples‟ army for defending the nation against external threats; and dismantling the state‟s security department [placing] the ministry of public security under transparent democratic oversight.” detailed report the report of the coi responded to the nine point mandate given to it by the hrc. it began with a history of the establishment of a separate state in the northern half of the korean peninsula after 1945. 50 that division was imposed upon the korean people by foreign nations. it terminated a 48 ibid 16 [86]. 49 ibid 367 [1220(a)]. 50 ibid 21-22 [95]. the denning law journal 61 long period of unified, centralised government, including during the years 1911-45 when japan suppressed the independence of the korean state and ruled it as a colony. 51 after removal of the japanese in 1945, the first supreme leader, kim ill-sung was imposed on north korea by the then soviet union. he established the supreme leader system (suryong), modelled on stalinist principles. 52 he consolidated governmental power under the direction of his family. when he died in 1984, he was succeeded by his son, kim jong-il. 53 the second kim instituted a regime fully dependent on the military. it proceeded to develop a huge army and nuclear weapons with long-range missiles. 54 upon the death of kim jongil in december 2011, dynastic succession passed immediately to kim jong-un. shortly before, he and his aunt, kim kyong-hui, were promoted to four star generals, although neither had any real military experience. 55 their appointments were not ceremonial. in december 2013, an uncle of the supreme leader, jang song-thaek, (earlier described as the supreme leader‟s “control tower” such was his role to guide the leader), was taken under guard from a politbureau meeting; summarily tried by a military tribunal; and executed. 56 there have been many other recent reports of executions of high officials of the dprk. 57 the country that emerges from these reports is a violent and dangerous place of royal whims and fancies. in that respect it is not unlike the kingdom over which king john ruled before his encounter at runnymede. mc features of coi report the ambit of the report of the coi on dprk is considerably wider than the focus for which magna carta is now taken to stand, particularly respect for the rule of law (mc1215, c 17); protection of deprivation of rights and possessions and outlawry or exile (mc1215, c 39). provision without delay or denial of rights and justice (mc1215, c 40); and establishment of settled courts and officials (mc1215, c 45). thus, 51 ibid 27 [110]-[128]. 52 ibid 34 [129] 53 ibid 36 [134]. 54 ibid 40 [143]-[148]. 55 ibid 41 [149]. 56 ibid 43 [157]. 57 „north korea vice-premier executed for talking back‟ the australian (13 august 2015) 9. reporting also alleged executions of choe yong-gou, reportedly killed in july 2015 and former defence minister hon yong-chol. magna carta 1215 to north korea 2015 62 chapters of the coi report deal with violations of thought and expression; 58 violations of freedom of movement and residence; 59 violations of the right to food; 60 and crimes against persons living peacefully in foreign countries through abduction. 61 important sections of the report of the coi deal with the intrusion of the state in dprk into matters of religious belief. 62 magna carta did make provision for the status of religion in england. but in keeping with the approach in those feudal times, the only real freedom of religion was that of the lord, whose subjects were obliged to conform to his beliefs. nevertheless, the first article in the mc of 1215, later confirmed in 1225 and 1297, signified respect of the king for the church, which was viewed as the “holy mother” of the christian religion (mc1215 c 1): “1. in the first place we have granted to god and by this our present charter have confirmed, for us and our heirs in perpetuity, that the english church shall be free, and shall have its rights undiminished and its liberties unimpaired.” the picture of denial of religious freedom in dprk is recounted in detail in the coi report. it describes a state where one of the four great freedoms of franklin d. roosevelt (the right to worship god in the way desired) is denied. where, even on dprk‟s own statistics, religious adherence has dropped from 23% of the population at the time of partition in 1945 to less than 1% today), with much testimony of persecution. the coi was uncertain as to whether this dramatic fall was because of the murder of religious adherents or simply a reaction to hostile state policy. more to the point, several sections of the coi report illustrate the arbitrary interference in personal freedom, seizure of possessions; proceeding against others by force; and the absence of legal regulation over officials in dprk. in particular, this is demonstrated in the sections of the coi report that deal with discrimination on the basis of a stateassigned social class (songbun), gender and disability. 63 restrictions on the right to move freely in and out of the country and effective systems of outlawry and exile in the extensive system of arbitrary detention camps; systems of torture; public and other executions; enforced disappearances; 58 coi report a/hrc/25/crp.1 (n 47) ch iv a, 45 [163]-[264]. 59 ibid ch iv c. 60 ibid ch iv d. 61 ibid ch iv f, 270 [846]-[1021]. 62 ibid ch iv a, 71-73 [253]-[258]. see also ch v d, 333 [1087]-[1097]. 63 ibid 333 [1087] ff. the denning law journal 63 and removal of entire families into political prison camps. 64 the camps in particular, remove suspected persons (and their families) into harsh and isolated conditions where work is arduous and food is scarce. 65 although dprk has denied the existence of such detention camps, they were described in compelling detail by witnesses before the coi. moreover, they are confirmed by precise satellite images. they certainly exist. they entail crimes against humanity. they are outside effective supervision in the ordinary prison system. 66 they are not under the control of independent courts. they represent forms of forced labour amounting to enslavement. 67 they constitute a “vast prison system [with] inhumane acts which follow regular patterns that victimise tens of thousands of inmates at any point in time.” 68 the coi was unconvinced that there were, in dprk, any independent courts, judges or officials who could enforce accountability for the crimes and wrongs described in its report. the coi acknowledged that in other places 69 a partly international and partly national tribunal had been created to investigate and establish accountability for the wrongs found to have occurred. 70 the coi on dprk went on: 71 “[t]hese models rely on the consent of the state concerned. even if the dprk were to provide such consent, the commission takes the view that, in the absence of profound reforms to the dprk‟s political and justice system, any dprk judges designated to participate in such a high court would lack the impartiality and independence to carry out criminal trials that would likely involve any very senior officials as defendants.” the elements of stable courts made up of judges or like officials, who know the law and are minded “to keep it well” (mc1215, c 45) is absent from the dprk. this is why the coi recommended referral of the case of dprk to the security council of the united nations. that body has the power, under the rome statute, to refer the case of dprk to the 64 ibid 74 [265]-[354]. 65 ibid 208 [693]-[845]. 66 ibid 330 [1008]-[1086]. 67 ibid 332 [1078]. 68 ibid 333 [1083]. 69 eg cambodia and sierra leone. see [1673] fn. 70 coi report a/hrc/25/crp.1 (n 47) 362 [1202]. 71 ibid 361[1201.1]. magna carta 1215 to north korea 2015 64 international criminal court (icc), even though dprk is not itself a party to the rome statute. several sections in the coi report also portray a country that has very grave policies and practices of discrimination against women. women are often the citizens of dprk who have first sought refuge, food and work in china. 72 attitudes of racial purity in dprk lead to severe discrimination against women who come from china pregnant, or with children fathered, by chinese men. 73 the position of women in norman england was also greatly disadvantageous at the time of magna carta. however, there were provisions in mc1215 which afforded a measure of respect for women‟s rights which was enlightened for its time. thus it was provided: 74 “ch 7: after her husband‟s death, a widow shall have her marriage portion and her inheritance at once and without any hindrance; nor shall she pay anything for her dower, her marriage portion or her inheritance which she and her husband held on the day of her husband‟s death; she may stay in her husband‟s house for 40 days after his death, within which period her dower shall be assigned to her… no widow shall be compelled to marry so long as she wishes to live without a husband…” magna carta contained, in its successive iterations, important protections for the customs of the city of london and for merchants and free trade. 75 the freedom of persons to move between classes was greatly restricted by the feudal system in operation when magna carta was sealed. however, inflexible social regulation by reference to birth and class has disappeared today in most parts of the world. it is inconsistent with universal human rights. yet forms of feudal control have been imposed in the dprk by the state-assigned social class system 72 ibid 118 [417] (describing the interrogation of women detainees); ibid 122-126 [424]-[428] (forced abortion); and ibid 132-139 [485]-[471] (female trafficking). 73 ibid 140-141 [474]-[476]. 74 quoted in tony blackshield and george williams, australian constitutional law and theory: commentary and materials (5th edn, federation pr 2010) 44, magna carta (the great charter) of 9 henry 3 (1225) as confirmed by 25 edw.1 (1297) quoted in [2.6] 42-43. however, limits were imposed on acting on the testimony of a woman. see mc 1225, ch 34. 75 ibid 30 (freedom to leave and enter england) (ibid 44), ch 37 (customs and liberties). the denning law journal 65 (songbun). this was devised by kim ill-sung. 76 indeed, the implementation of songbun was attributed to a purge of rivals of kim illsung. 77 it is difficult to move to a higher social class. yet it is less difficult to move down the ladder. the system appears to have some similarities to the fixed inherited social status that existed in feudal korea. it has been strongly imposed in dprk by the regime, as a method of social and economic control. there is now no equivalent social system in the republic of korea (rok) (south korea). coi follow-up the coi report on the dprk was approved and adopted by the third committee of the general assembly of the united nations, reflected in a strong vote. 78 it was then transmitted to the plenary session of the general assembly. this also adopted it with a strong vote that reached across geopolitical regions. 79 then, in accordance with the recommendation of the coi, 80 two important follow-up proposals were accepted by the united nations. first, the general assembly transmitted the coi report to the security council of the united nations. the coi had recommended that the united nations should refer the situation in dprk to the icc “for action in accordance with that court‟s jurisdiction.” secondly, the office of the high commissioner for human rights (ohchr) implemented the recommendation of the coi that a field structure should be established in rok “to help to ensure accountability for human rights violations in [dprk], in particular where such violations amount to crimes against humanity.” 81 the placement of the recommendations of the coi before the security council was itself a step unusual for the united nations system. generally, the security council avoids direct involvement in human rights 76 coi report a/hrc/25/crp.1 (n 47) 74 [265]. this is incompatible with the universal declaration of human rights 1948, art 2 and iccpr/icescr, art 2; also convention on the elimination of all forms of discrimination against women 1979, art 1. 77 ibid 76 [273]. the coi recommended an end of discrimination based on social class. see ibid 368 [1220(h)]. 78 resolution of the third committee: united nations, a/res/69/188, (18 december 2014). 79 resolution of the general assembly: united nations, a/res/60.1. 80 coi report a/hrc/25/crp.1 (n 47) 370 [1225(a)]. 81 ibid 371 [1225(c)]. magna carta 1215 to north korea 2015 66 issues. however, a procedural resolution was adopted by the council in december 2014, placing the issue of dprk on the agenda of the security council. 82 it will remain on that agenda at least for the next three years. that resolution was also adopted by a strong vote of the council. 83 the presence of the subject matter on the agenda of the security council means that it can be raised at short notice, by any council member, including to consider referral to the icc or, as the coi proposed, to “adopt targeted sanctions against those who appear to be most responsible for crimes against humanity.” 84 the dprk has not so far acquiesced in any action demanded by its critics. its response so far has been like the reaction of king john to the magna carta. it has remained belligerent, hostile and uncooperative with the un human rights system. furthermore, in more recent times, it has stepped up hostile military action; entered into a “wartime state” to be fully “battle ready” to “launch surprise operations”; and engaged in incidents constituting the worst escalation of hostilities between the korean states since 2010. 85 a number of conciliatory gestures offered by dprk during a “charm offensive” in 2013 and early 2014, designed to avoid referral of its record to the security council, were immediately withdrawn once the security council added the issue of human rights in dprk to its agenda. the possession of weapons of mass destruction; the recent and current political and military posture; and the repeated incidents of violence against its own former elite, present the spectacle of a country that is very dangerous for its own people, to its neighbours, to the region and (through the risks of nuclear accidents or detonations) to the environment of the planet. it is this grave escalation of danger that presents the urgent need for strong action to implement the coi report. but how will that action come about? can a runnymede moment be created for korea? 82 security council resolution: s/res 2141 (2014). 83 (11-2-2). china and russian federation contra; chad and nigeria abstained. three permanent members of the council (france, united kingdom and united states of america) voted in favour. 84 coi report a/hrc/25/crp.1 (n 47) 370 [1225(a)]. the coi made it clear that „in the light of the dire social and economic situation of the general population the commission does not support sanctions imposed by the security council or introduced bilaterally that are targeted against the population or the economy as a whole‟. 85 sangwon yoon and sam kim, „north korea troops ordered to prepare for war‟ sydney morning herald (sydney, 21 august 2015). on 27 august 2015 it was reported that, following a form of apology the military situation eased. the denning law journal 67 iii ten parallels action and reaction the demand of the barons for the agreement to a charter was a direct outcome of intolerable conduct on the part of king john. abroad, he threatened to conduct expensive and dangerous wars in france. at home, he sought to raise taxes; offended the church; and harmed trade and commerce. the charter was not the product of a popular uprising, like the later peasants‟ revolt in england of 1381. in 1215, it was an uprising of the elite which, at last, responded to what it came to see as intolerable strains on the country and their own safety and rights. 86 witnesses before the public hearings of the coi told of their admiration for, and love of, kim il-sung. kim jong-il developed the nuclear arsenal; but he was generally cautious in his handling of the elite. kim jong-un, on the other hand, has disappointed the high expectations that accompanied his arrival. they had hoped for modernisation and liberalisation of the regime. he has proved violent in his disposal of enemies and oppressive in his dealings with most of the population. regime change in dprk was never on the agenda of the coi, any more than military intervention in dprk. that country is a member state of the united nations which created the coi. military action was not contemplated by the coi‟s mandate from the hrc and it had no power to propose it. however, ideas from without and within now challenge the situation in dprk. in england in 1215, such challenges led to magna carta. where it will lead in the case of dprk is still unsure. that country was not obliged to join the united nations. yet, having done so, it is obliged to conform to universal human rights. they are expressed in the united nation‟s charter the udhr and the treaties that have followed it. dprk has itself ratified several of those treaties. 87 violence begets violence. discontent growing from chronic food shortages, economic impoverishment, technological deprivations and other wrongs seem likely to produce demands in dprk for radical reform. hopefully, such reforms will follow the recommendations of the coi addressed to dprk. 88 high in the list of those recommendations was the introduction of sound principles of governance; the implementation of restrictions on the exercise of public power; and the observance of due 86 theodore frank thomas plucknett, a concise history of the common law (n 6) 20. 87 coi report a/hrc/25/63, 6 [21]. 88 coi report a/hrc/25/crp.1 (n 47) 367-369 [1220(a) (s)]. magna carta 1215 to north korea 2015 68 process and basic rights for ordinary people in dprk. just as magna carta demanded centuries earlier in the case of king john‟s england. nostalgia feelings the demands expressed by the barons in mc1215 did not purport to express fresh insights. they were demands for the restoration of modes of governance that had existed during earlier reigns of the norman and saxon kings of england. the norman monarchs prided themselves on their strong centralised administration. to some extent, they drew legitimacy from nostalgic ideals that were traced back to the reign of the anglo-saxon king edward: the only english monarch to have been named a saint (“st edward the confessor”). whilst some witnesses before the coi clearly contemplated the entire replacement of the kim dynasty, others were themselves nostalgic for the founder of dprk: kim il-sung. in part, that may have been the product of propaganda undamaged by current experience. in part, it might have derived from his leadership of the dprk during the korean war that ended in a stalemate. in part, it might be a result of the soviet subsidisation of the dprk economy before 1989 and the operation, at that time, of a comprehensive food rationing system. whatever the reasons, discontent with, and even disrespect for, the regime of kim jong-un appear to be substantially higher than in the case of his predecessors as supreme leader of dprk. when king john died in england in 1216, the salvation of his dynasty was the conduct of his infant successor (henry iii) under a regency controlled by a gifted and loyal leader, the earl of pembroke. the closest parallel to this in dprk appears to have been the uncle by marriage of the supreme leader (jang song-taek) who was speedily removed and executed. reportedly, he favoured the adoption of chinese-styled market reforms. his death removed an important actor in a potential process of transition. regents have sometimes been viewed as rivals in history, and eliminated. such appears to have been his fate. institutional solutions an important motivation for the barons who challenged john in 1215 was their objection to the deployment of royal power on the basis of the “whims” of the monarch. an achievement of the earlier norman kings (and indeed the late anglo-saxon monarchs) had been an improved system of clerks and processes of consultation (“counsel”) involving a form of collective leadership. the absence, and infancy, of some of the the denning law journal 69 succeeding monarchs tended to show that a regent, assisted by a council of magnates, could sometimes rule well. they could set a standard of administration that a single individual would find it difficult, unaided, to attain, simply because of the complexity of a country‟s public affairs. the highest bishop in england, the archbishop of canterbury a most powerful official at the time of king john – perceived the growing divorce between the person of the monarch and the concept of the english crown. thus, stephen langton (whom pope innocent iii forced john to accept as archbishop of canterbury) expressed this notion well: 89 “loyalty was devotion, not to a man, but to a system of law and order which he believed to be a reflection of the law and order of the universe.” a distinctive feature of governance in dprk is the concentration of supreme power in the personal hands of the supreme leader. as the coi pointed out in its report: 90 “apart from exercising power through his dominant role in the party and the national defence commission, the supreme leader also acts as an autonomous decision-making institution. former officials of the dprk who provided testimony to the [coi] underlined that orders issued by the supreme leader are considered the highest type of normative command, overruling decisions of all other parties or state institutions. the constitution provides the normative underpinning by stipulating that the supreme leader … “directs the overall affairs of state” [and] has the constitutional power to issue orders… superior… to, and abrogate, the decisions of any other organ of state.” according to testimony received by the coi, agencies had to submit detailed reports on the implementation of actions involving gross human rights violations to the supreme leader. 91 symbolising this concentration of power (and illustrating the personality cult built around the supreme leader) each member of the kim dynasty is repeatedly shown in media of all varieties, surrounded by 89 langton quoted in powicke, cambridge medieval history, vol vi, 219, cited in theodore frank thomas plucknett, a concise history of the common law (n 6) 21. 90 coi report a/hrc/25/crp.1 (n 47) 358 [1191] (footnotes omitted). 91 ibid. magna carta 1215 to north korea 2015 70 adulation and crowds charged with high emotion, sometimes bordering of hysteria. moreover, each of the kim leaders has toured the country giving “guidance”. he is surrounded, by senior officials who are shown taking dutiful notes and recording his every word. this is what “guidance” involves. it equates to the itinerant conduct of medieval monarchs and reverence to their persons. it is not a feature of modern democratic governance, where the people, as electors, reserve to themselves a questioning and often sceptical attitude about leaders and would-be leaders that is healthy. it was in 1215 that questioning spilt over into action by the barons in england that they presented their charter to john at runnymede. just as later their successors in england presented an indictment that led to the trial, conviction and beheading of charles i in 1649; the protestation against the king”s lawless conduct that drove james ii from the kingdom in 1688; the demand for a bill of rights that was granted in 1689 by william iii and mary; as a condition to their assuming the crown; and the assertion of the parliamentary supremacy of the house of commons agreed to by george v in the parliament act of 1911 that removed the last vestiges of the house of lords‟ power to defeat or delay indefinitely the laws passed by the commons. these were defining moments in english constitutionalism. but where are their equivalents in the constitutional narrative of dprk? from grant to right an important feature of the successive versions of magna carta was that they moved from concessions and grants, in the coronation oath of henry ii, and in the 1215 charter of john, to the language of “given and granted” in the mc 1225 also and subsequent versions. moreover, arguably, by referring to the “liberties” of “free men”, later versions of mc 1215 also acknowledged the antecedent entitlements that the monarch was simply recognising (and promising to uphold) rather than “granting” (and thus entitled to withdraw). this was a shift from donation (out of the ruler‟s supreme powers) to acknowledgment of pre-existence, which the ruler agrees to respect as the price of continued kingship. it is an important distinction, archbishop langton‟s concept of the differentiating of the person of the ruler and the office that he or she holds. such a distinction may exist in the minds of some theoreticians of dprk. but it appears nowhere in voice or writing. in the actuality of the way in which the country is governed, as described in the coi report, the differentiation is never observed in practice. yet it is vital to good governance because of the inherent fallibility of all human beings. the denning law journal 71 monarchies still exist in the world. britain and australia are amongst them. however, the hereditary principle only survives in contemporary governance where the langton differentiation is consistently observed. then monarchy can be a convenient historical fiction of governance. however, such a differentiation is not observed in dprk. this fact denies the citizens of dprk a full measure of civic and political (including democratic) rights, promised in universal human rights law 92 and observed in varying degrees in most modern nation states. liberty – controlling detention some of the worst features of dprk, described in the coi report, involve arbitrary conduct by agents of the state, including in the treatment of ordinary prisoners; the conditions of prison facilities; the extermination and murder of prisoners; the subjection of prisoners and detainees to torture, rape and grave violence; the enslavement and enforceable transfer of populations; and the lack of effective control over long-term detention not only of suspects but of their extended families. functionally, it was conduct of this type in the england of john that led to seizure, imprisonment and deprivation of rights without a judgment or control by the law (mc1215, c 39). by interposing the scrutiny of a decision upon such matters, by a third person official acting in accordance with the law, there is built into such actions a dual virtue. it is the provision of a second look at public actions by an outsider with a measure of dispassion and separation from the original actor. and careful examination of the challenged by reference to pre-existing rules that are discoverable, upheld and applied by people who know the law and are minded to keep it (mc1215, c 45). according to the evidence received by the coi, these central features, reflected in the concessions extracted from king john in 1215, are not present, at least in many circumstances, in the dprk today. beyond the ordinary prisons, an extensive system of extrajudicial detention camps exist. they constitute a form of political prisons where detention, torture, executions and enforced disappearances are an ongoing feature of uncontrolled governmental power. 93 the most basic feature of a civilised community is thus missing in dprk. security of one‟s person and 92 the right to participate in democracy in un treaties was discussed in attorneygeneral (wa) v marquet (2003) 217 clr 545, 603 [174] ff; [2003] hca 67: referring to art 25 of the international covenant on civil and political rights 1966. 93 coi report a/hrc/25/crp.1 (n 47) 330-343 [1068]-[1130]. magna carta 1215 to north korea 2015 72 significant possessions is not available, and certainly not from any official who is independent of the supreme leader and those immediately around him. feudalism to songbun successive versions of charters of liberties in england were extracted initially by unlikely champions. those champions were themselves barons and other members of the nobility who were among the main beneficiaries of the feudal system. that system governed not only the land law that influenced the labour and status of the subjects. it also imposed on them duties of loyalty and service according to their rank at birth, which it was difficult to escape. into that world, where birth was destiny, was intruded magna carta, with its promises that went beyond the rights of the barons. the various chapters of mc1215 also spoke of the entitlements of the bishops and clergy of the church; of the merchants and traders; and of foresters, knights and “free men”. in this sense, magna carta was the beginning of the end of the universality of feudal fealty to a lord, imposed by birth and reinforced by oaths and other means of enforcement. in dprk, as the coi report shows, the assignment of the people to a state-specified social class (songbun) continues to this day. it is the worst form of discrimination because of its universality and virtual inescapabilty. 94 awareness of the people when the barons extracted the promises from john, they did not leave it in the form of a latin text on parchment. they provided, in terms, for the contents of the charter to be drawn to the notice of the people of the kingdom. specifically, they provided for the document to be read in the great cathedrals, where presumably, at least the educated subjects would know and understand and where recorders would translate for the common people. word would get around. in the original charter, sealed by john (mc1215) the barons also created a detailed mechanism to ensure that the promises would be kept. this was ch.61 of the 1215 document (“the security clause”). it set out a procedure by which a council of 25 persons (archbishops, barons and other notables) were delegated to monitor any royal evasion. 94 ibid 270-319 [846]-[1021]. the denning law journal 73 the members of this extraordinary council were even authorised, in the event of evasion, to seize the king‟s castles, lands and possessions. perhaps this is what persuaded pope innocent iii to annul the document as “shameful, demeaning, injust”, as well as “obtained under duress”. 95 although the security clause was dropped in all subsequent versions of magna carta, it showed an awareness on the part of the barons of the need for enforcement and collective leadership. later, in 1258, a council of 25 was again created to keep john‟s son, henry iii to his word. 96 eventually councils of such a kind would evolve into an increasingly insistent royal court and later still a parliament. the coi report on dprk evidences deficiencies in governance of the same generic type that exercised the barons of england in 1215. such is the status and power (including constitutional power) of the supreme leader in dprk that there are no effective sanctions against him in the formal institutions of the country. moreover, dprk strictly controls access to knowledge and information. 97 all forms of media are severely controlled by the governing party (korean workers‟ party). access to the internet is generally unavailable to the people. any having illicit and forbidden access (including to popular television dramas from the rok) are monitored by an intense surveillance system. if apprehended, they are severely punished. 98 freedom of expression is forbidden. despite repeated requests by the united nations, the report of the coi has not been made available to the people of the dprk, on the internet or intranet or otherwise. the coi itself, its members and officers of ohchr were forbidden access to the people of dprk. since its report, the coi has been denied entry to explain its conclusions and findings, to justify its recommendations and answer criticisms. recommendations for free access to the internet has been ignored. 99 copies of the coi report, in various formats, are smuggled into dprk. but they are not read to the people from cathedrals or their local equivalents. it must be assumed that most of the people of dprk have less knowledge today of the condemnations of the united nations than the ordinary people in 1215 had of king john‟s magna carta. 95 ibid 74 [265]. 96 james spigelman, „magna carta in its mediaeval context‟ (n 15) 386. 97 coi report a/hrc/25/crp.1 (n 47) 54-67 [197]-[239]. 98 ibid 385. 99 coi report a/hrc/25/crp.1 (n 47) 45 [163] ff. magna carta 1215 to north korea 2015 74 stability and bellicosity in 1214, king john had tried to deflect unrest in england by engaging in a war against france. his forces were defeated in the battle of bouvines. this resulted in his loss of lands of the duchy of normandy, from where the english king‟s family had derived. the failure of this overseas distraction resulted in further attempts to raise monies to recapture the lost territory. king john continued his unpopular policies at home. this led to the now little remembered attempt to invite a french prince to england to take the english crown. such overseas distractions only came to an end when king john fortuitously died. he was not the first, nor the last, ruler to attempt to overcome domestic disaffection by embracing a foreign diversion. the korean war of 1950-1953, beginning with an attack by the armed forces of dprk on the south, eventually resulted in the series of misfortunes that still haunt that country to this day. in dprk there remains deep animosity towards the united states of america, and it allies, that fought under the united nations flag in the korean war. although dprk has long taught its people that the war was commenced by south korean forces, supported by the united states, access to soviet archives, now widely available and cited in the coi report, show that this was false. the war was initiated by kim il-sung. 100 this notwithstanding, the stalemate that followed relief to dprk, initiated by the people‟s republic of china, certainly enlarged the hostility to the united states that continues to the present time. even food aid, provided by the united states during the devastating famine (“arduous march”) of 1996-8, was represented to the people of dprk as “reparations” afforded by the americans for their war crimes against dprk. 101 hatred and mistrust run deep in dprk. following his election in december 2009, a personal letter was sent by president obama to kim jong-il. it invited a new beginning to relations between the two countries. the president‟s open hand was slapped away. the personal envoy carrying his letter was not permitted to deliver it to the supreme leader. instead, soon after, a ballistic missile test was conducted by dprk that overflew japan in the direction of the united states. within a month of this event, a second nuclear test was conducted by dprk. and a year later, a dprk submarine torpedoed a rok naval vessel, killing 56 young 100 ibid 24 [103] fn 28. 101 ibid 193 [633]. the denning law journal 75 rok sailors. 102 on the face of things, this constitutes the modern equivalent of king john gnawing branches. the appeal now is not to a party or philosopher or a supposedly superior form of governance of society. it is to nuclear weapons, missiles and submarines. intractability and action at the end of 1215, with magna carta annulled by the pope, king john‟s position had been restored to the condition it was in prior to the sealing of the instrument. however, john continued to face many challenges, including the imported alternative prince from france. only his human mortality terminated the dangers of an uncertain outcome involving invasion and open rebellion. only the wise regency that followed, and a revised magna carta, confirmed and reconfirmed, changed the direction of english history. it did so in terms that retained the external trappings (and some powers) of the king. whilst conceding the central idea of mc1215 that the king‟s powers were subject to limits and separate to some degree from his person. that point has not yet been reached in dprk. internal solutions there is one final lesson for the korean peninsula today from the struggle of king john with magna carta in 1215. it is a lesson that goes beyond the text or even the context of that document. it arises from the situation faced in 1215 and the way the dangers of that time were avoided and addressed. in the end, solutions were found. but they were found within england itself. the immediate solutions (a wise regency; confirmation of a modified magna carta; and reconfirmation by the same by later kings) was by no means the end of the constitutional story. that story continued to evolve during later centuries. subsequent chapters of the story were added as the influence of the idea of limited governmental power expanded to include england‟s colonies former colonies and dominions beyond the seas. eventually, principles of limited government, the rule of law and respect for fundamental human dignity and rights spread far beyond the english-speaking countries, with their memories of magna carta. through the proclamation of the four freedoms during the second 102 victor cha, the impossible state: north korea, past and future (new york, harper collins 2012) 10. magna carta 1215 to north korea 2015 76 world war, they spread to the whole planet: even beyond countries of similar constitutional background. in truth, today, the united nations charter is a contemporary global reflection of the central idea of magna carta. that is the idea of limited power in, and between, the nations and rulers. this idea now extends to all the countries of the world. that extension has come only just in time. without it, it would not have been possible for independent nation states, however powerful, to protect the planet, from the ravages of war; the derogations of universal rights, the defiance of the rule of law and the debasement justice; the oppression of colonialism, apartheid and foreign domination; the dangers of hiv/aids, ebola, malaria and other diseases; the creeping risks of climate change; and the horrors of nuclear proliferation, accident and destruction. human history advances by human endeavour. lodged somewhere in the dna of human beings is a tendency that favours rationality, intelligibility and justice. that is why humans have created the united nations. it is why they have created the human rights council and the office for the high commissioner for human rights. it is why they established a commission of inquiry and a special rapporteur on dprk. it is why the global community must now ensure that the recommendations of these office-holders are known, considered and followed up with action. it is the responsibility of all nations and of human beings everywhere to protect the people of dprk from crimes against humanity. we must not default in that responsibility. in 2015 the world, through the united nations, must advance the idea of control over rulers and accountability for crimes against the people. one historic source for that grand idea was the event that happened at runnymede in england in june 1215. 17 denning law journal 2018 vol 30 special issue pp 17-49 the australian and indian constitutions, similarities, differences and the challenge of constitutional choice* the hon. michael kirby ac cmg** abstract in this article, based on an address to the india law institute in new delhi, the author, a former justice of the high court of australia lists ten features of the constitutions of australia and india that exhibit similarities; ten features where there are sometimes marked differences; and two areas of operation that illustrate the fact that especially in constitutional adjudication, judicial decisionmakers judicial decision-makers face what julius stone described as ‘leeways for choice’. by reference to decisions in australia and india on issues of race, aboriginality and human sexuality, the article identifies the inescapable challenge of choice and suggests useful guideposts. keywords: comparison of the constitutions of australia and india; constitutional adjudication; issues of race, aboriginality and human sexuality. constitutional similarities 1. constitutional democracies: india and australia occupy large portions of the landmass of planet earth. india is described as a ‘sub-continent’. australia commonly calls itself a ‘continent’, although some reflect this is pretension to view it as part of the continent of ‘oceania’. however that may be, both india and australia are large portions of the world governed as a single nation. moreover, they are both parliamentary democracies. their national governments are elected by direct popular vote in national polls conducted by secret ballot in which the * text on which was based an address at the india law institute, new delhi, 10 january 2018. ** former justice of the high court of australia. honorary adjunct professor o p jindal global university, delhi, 2018 and hon. lld national law school of india university, bangalore, 1997. 18 the australian and indian constitutions, similarities, differences and the challenge of constitutional choice electors participate at regular intervals.1 the peaceful and substantially uncontested conduct of national elections in india is a great achievement of the constitution. so it is in australia. since 1923, in that country, voting in federal elections has been compulsory for all electors. defaulters are subject to a small fine. in both countries, the electoral turnout is high. 2. federal system: india and australia have federal systems of government. although the federal character is more clearly stamped on the australian constitutional system, in practice judicial interpretations of the australian constitution have repeatedly favoured the accretion of constitutional powers to the federal parliament.2 in the australian constitution a list of specified legislative powers are granted to the federal parliament. unless and until exercised by the federal parliament, the enumerated legislative powers remain with the states (and self-governing territories).3 a limited list of powers are conferred exclusively on the australian federal parliament.4 in india, the generally geographical distribution and limitation of powers is provided for.5 the union parliament has exclusive powers to make laws with respect to any of the matters enumerated in the ‘union list’ in the schedule.6 in india, there is also a ‘concurrent list’ in respect of which the parliament and the legislature of any state share specified powers.7 as well, the legislature of any state has exclusive power to make laws for such state, or any part thereof, with respect to the matters enumerated in the ‘state list’.8 although the federal division of powers in india is an important feature of the constitution, its federal character is not amongst the stated essential characteristics 1 in india the house of the people of parliament (lok sabha) has a maximum ordinary term of six years (originally five years). indian constitution [ic], article 83(2) as altered by forty-fourth amendment act 1978 (in). in the australian constitution [ac], the house of representatives serves for a maximum term of three years ‘and no longer’: ac section 28. the australian senate’s ordinary term is six years: ac section 7. in india, the council of states (rajya sabha) members also have a six-year term; although one-third of members retire at the end of each two year intervals: ic article 83(1). 2 see for example amalgamated society of engineers v adelaide steamship co. ltd (engineers case) [1920] 28 clr 129, (1921) 29 clr 406. see also new south wales v the commonwealth (work choices case) [2006] 229 clr 1. 3 ac (n 1) section 51. see also section 109. 4 ac (n 1) section 52. 5 ic (n 1) article 245. 6 ibid article 246(1). see also the union list (list i) in ic, 7th schedule. 7 ic (n 1) article 246(2). see also ic, list iii, 7th schedule (‘concurrent list’). 8 ic (n 1) article 246(3), list ii. the denning law journal 19 in the preamble (‘… a sovereign, socialist, secular, democratic republic’).9 the comparative ease of amendment of the indian constitution, through parliamentary procedures, has reduced the significance of the federal divisions because they can be altered more quickly and readily than under the federal constitutions of the united states of america, canada, australia and nigeria. 3. rule of law: in both india and australia, the rule of law is a strong feature of constitutionalism. in india, there is an express feature of the constitution that establishes the supreme court of india10 and the high courts of the states.11 the law declared by the supreme court of india is binding on all courts in the territory of india.12 the law declared by a high court is binding on all subordinate courts within the state.13 there are no exactly similar provisions in the australian constitution, although there is a separate chapter of the constitution, ch. iii, dealing with ‘the judicature’. this separate treatment has been held to have important consequences for the independence, work and role of the courts in australia.14 the rule upholding the superiority of judicial determinations as to the constitutionality and lawfulness of federal, state and territorial laws in australia was derived from a constitutional holding copied from the supreme court of the united states.15 in this sense, in both countries, the courts are accepted as having the power to disallow federal legislative, executive and judicial acts. thus the supreme court and, within jurisdiction, the state courts are the independent, neutral arbitrators of constitutional and other legal questions. their orders are obeyed as an attribute of constitutional obedience. rarely indeed is it necessary to invoke an official to enforce the law against legislative or executive recalcitrance.16 9 ic (n 1) preamble. 10 ic (n 1) ch iv. 11 ic (n 1) ch v. 12 ic (n 1) article 141. 13 ic (n 1) article 226. see also east india commercial co v collector of customs [1962] sc 1895. 14 r v kirby; ex parte boilermakers’ society of australia [1956] 94 clr 254. 15 marbury v madison [1803] 1 cranch 137. this was the first supreme court decision in the united states to apply the doctrine of judicial review as to the validity of a congressional statute. the decision was copied in the earliest days of the high court of australia. see also ah yick v lehmert [1905] 2 clr 593; ex parte whybrow [1910] 11 clr 1. 16 see however tait v the queen [1962] 108 clr 620, a case of a clash between the high court of australia and the executive of the state of victoria concerning enforcement of a death sentence pending disposal of an appeal application. 20 4. character of supreme court: as well, in both india and australia, the appellate jurisdiction is integrated. the supreme court is not confined (as in the united states) substantially to federal constitutional and legal issues and orders. as in the united kingdom and canada, the final national court is a general court of law, resolving both constitutional and general legal disputes and those arising in state as well as federal jurisdiction. the general nature of the courts’ jurisdiction has influenced the character and self-perception of the final national court and the techniques of reasoning and argumentation. 5. responsible and representative government: although india has a president, its system of government is essentially parliamentary, not presidential. the president must, in the exercise of his functions, act in accordance with [the] advice [given by the government].17 as that great judge of the supreme court of india, v r krishna iyer, observed in shamsher singh v state of punjab, ‘not the potomac, but the thames, fertilises the flow of the yamuna’.18 in the australian constitution, the governor-general is provided for in terms that likewise (with due adaptations) follow the british constitution. the executive power of the commonwealth is ‘vested in the queen and is exercisable by the governor-general as the queen’s representative, and extends to the execution and maintenance of this constitution, and of the laws of the commonwealth’.19 although there is a separation of powers in the australian and indian constitutions, between the executive and legislative powers respectively as there specified, there is no strict separation between the executive power and the legislature. the prime minister and the government are elected by the members of the lower house of parliament. however, both in india and australia there is provided a short period of grace. in the australian constitution it is stated that ‘no minister of state shall hold office for a longer period than three months unless he is or becomes a senator or a member of the house of representatives’.20 in india, it is provided ‘a minister who for any period of six consecutive months is not a member of either house of parliament shall at the expiration of that period cease to be a minister’.21 both in india and australia, the prime minister is formally appointed by the head of state (the president or in australia the 17 ic (n 1) article 74. 18 shamsher singh v state of punjab air [1974] sc 2192, 2212 cf. m d kirby, ‘foreword’ in lokendra malik, selected reflections on the indian presidency: essay in honour of president shri pranab mukherjee (satyam law international 2017) vii. 19 ac (n 1) section 61. 20 ibid section 64. 21 ic (n 1) article 75(5). the australian and indian constitutions, similarities, differences and the challenge of constitutional choice the denning law journal 21 governor-general representing the queen). however, in australia, the prime minister is not mentioned in the constitution, although constitutionally he or she is the most important politician and political leader in the country. in india, the prime minister is the head of the council of ministers22 and is expressly named in the text. in australia, whilst a federal executive council is provided for to ‘advise the governor-general in the government of the commonwealth’23 the selection, appointment and termination of appointment are left to the vestigial provisions of the royal prerogative. in india there is an express duty upon the prime minister to furnish evidence to the president as to all decisions of the council of ministers.24 in australia, that duty also is governed by established conventions and traditions. under both constitutions, the role of the president or the governor-general, like that of the british sovereign, is in the words of walter bagehot ‘to advise, encourage and warn’25 the ministers in respect of the advice which they give to him or her. whether a republic or a constitutional monarchy, the powers given to the symbolic head of the executive are not those of a ‘rubber stamp or a glorified cypher’.26 in neither constitution is there an express power in the president or the governor-general to dismiss a prime minister for a perceived breach of duty.27 in india, it is said that such power resides in parliament. but in australia, it has been exercised by the governor-general and by state governors, invoking the royal prerogative, said to be implied by the role, title and functions of the vice regal representatives.28 22 ic (n 1) article 74(1) cf. government of india act 1935 (uk), sections 10(4) and 51(4). 23 ac (n 1) section 62. these gave rise to the controversy, in november 1975, when governor-general kerr terminated the commission appointing e g whitlam as prime minister of australia, notwithstanding that he continued to enjoy the support of a majority in the house of representatives. the governor-general then appointed the leader of the opposition (m fraser) as caretaker prime minister on condition that he would secure supply and proceed immediately to a federal election (which he did and in which he was returned to office). 24 ic (n 1) article 78. 25 shamsher singh (n 18) 2212. see also walter bagehot, the english constitution (chapman and hall 1867, fontana press 1991) 113 on the right of the president of india to relevant information. see also malik (n 18) 94–95. see also ic (n 1) article 78. 26 malik (n 18) 94. 27 malik (n 18) 104. 28 the kerr/whitlam case (1975) was preceded in canada by the case of governorgeneral lord byng of vimy and prime minister mckenzie-king (1926) and by a case in new south wales, australia in 1932 (governor of philip game and state premier j lang). see also kirby (n 18) ix. 22 the united states constitution, on the other hand, was greatly influenced by the then unevolved version of the british constitution as understood by the american settlers at the time of the american revolution. the president was modelled on the british monarch who, at the time, was often an active and powerful head of the executive. subsequent to 1776, the british constitution continued to evolve to the form of constitutional monarch recognised today. that form emphasises the predominance of parliament. the westminster system affords a more swift and flexible means of terminating an incompetent, unpopular or misbehaving head of government. the resulting political system chooses its leaders from politicians who have typically already been tested in the parliamentary chamber. it is less prone to executive autocracy. whilst it has its own weaknesses, most observers, including some in the united states today, consider it a preferable, flexible form of government, when contrasted to the presidential system.29 1. separating head of state and government: consequent on the previous point of similarity, is the way the indian and australian forms of constitutional government separate the ceremonial, military and bureaucratic functions of the chief executive from the functions of head of government.30 the differentiation is expressly reflected in the indian constitution by the description and powers of the president and prime minister. the head of state enjoys control over the grant of pardons and commutation of sentences.31 it is a considerable burden to impose on one individual (even enjoying powers of delegation) to perform so many timeconsuming functions where the powers of head of state and head of government are combined as in most presidential models. simply receiving the credentials of diplomats, participating in military and civil ceremonies, retaining engagement with huge modern bureaucracies and being involved with the vast modern civil society consume inordinate time. such functions necessarily distract the political head of government from the burdensome functions of actual political, economic and social leadership. they also combine in the one-person functions that are designed to be uniting, neutral and shared by all people with functions that tend to be contested and even divisive, concerning the economic, political and social differences that inevitably exist in a modern society. 29 professor bruce ackerman (yale university) has written on the advantages of the parliamentary system. many consider that the model of executive president places impossible and undue demands on the chief executive. 30 ic (n 1) article 53(1) and (2). see also article 74, 75 and 78. cf. ac (n 1) sections 61, 68 and 70. 31 ic (n 1) article 72(1). the australian and indian constitutions, similarities, differences and the challenge of constitutional choice the denning law journal 23 in this sense, the differentiation in functions, reflected in the parliamentary system operating in india and australia, is more apt to the modern age and to the functions of the two offices. in essence, those functions are separate and different. the proper place for the head of government is in the place where political government mostly goes on, namely parliament. the proper place for the head of state is in the chief executive’s mansion. moreover, conferring on a head of government of the role of commander-in-chief of the military forces may be prone to result in false or undesirable opinions to be formed as to the ambit and availability of such powers. the lesson of history is that it is preferable to keep them separated.32 2. legal traditions: many of the distinctive legal traditions of india and australia are identical or similar. the judges of the superior courts are commonly respected and uncorrupted. the robes of judges and advocates are similar, especially now that justices of the high court of australia, the federal court of australia and other courts have dispensed with the wearing of wigs. judges are given deferential titles (in india ‘my lord’ and in australia ‘your honour’). under the provisions of the respective constitutions, the appointment of superior court judges is made by the executive government. except that the members of the executive must participate in and be answerable to parliament, there is no provision akin to engagement with the legislature in the confirmation of judicial appointments as for federal judges in the united states.33 the sole obligation upon the executive in india is to ‘consult’ with judges, including always in the case of the appointment of a judge other than the chief justice of india to consult with the holder of that office.34 in australia, the executive power of appointment is, so far as the constitution is concerned, plenary and uncontrolled.35 a statutory provision in australia now requires ‘consultation’ with state governments in respect to appointments to the high court of australia.36 whereas in australia, ‘consultation’ means just that and implies a serious but not binding process of discussion, in india, as a result of the judges cases the requirement of ‘consultation’ has (by a narrow judicial majority) been held to afford a virtual veto to the chief justice or to a collegium 32 ic (n 1) article 53(2); ac (n 1) section 68. 33 ic (n 1) article 124(2). 34 ibid. 35 ac (n 1) section 72(2). 36 high court of australia act 1979 (cth), section 6 (‘consultation with state attorneysgeneral on appointment of justices’). 24 of senior justices. justice krishna iyer criticised this as a ‘judicial coup’ affecting the process of judicial appointment.37 both in india and australia, there are strong constitutional provisions protecting the tenure of superior judges, federal and state, by the imposition of the necessity of affirmative parliamentary vote for the removal of judges from office. in india there is a further limitation for such removal to the approval of a majority of not less than two-thirds of the members of the house present and voting upon a motion alleging ‘proved misbehaviour or incapacity’.38 so severe are these requirements that they have rarely been invoked and most difficult to secure. in australia, the power has never been invoked in the federal sphere and has only once succeeded in the state sphere. 3. territories: both in india and australia, territories are generally the constitutional responsibility of the federal government, with an administrator appointed to be the chief executive.39 in the indian case, provision was originally made for forms of self-government for union territories, contemplating application by goa, daman and diu (previously portuguese colonies). the provision later extended to the territory of pondicherry (previously a french colony). in australia, self-government was successively enacted for the electors in the northern territory of australia and the australian capital territory. in each of these territories a unicameral legislature has been created by federal legislation. although the federal parliament has the power to disallow legislation enacted by the territory legislatures, this step has only once been taken in each case.40 in india, an express constitutional amendment was adopted to permit a high measure of self-government in the national capital territory of delhi.41 the representation of the electors of the commonwealth in the territories was expressly contemplated by the australian constitution.42 despite two challenges; legislation for the 37 v r krishna iyer j [‘judicial coup’ in judges cases]. 38 ic (n 1) article 124(4); ac (n 1) section 72(ii). in the australian constitution an ‘address’ to the governor-general from both houses is required, inferentially a single majority will suffice. 39 ic (n 1) article 239 a; ac (n 1) section 122. 40 in the case of the northern territory of australia, to disallow legislation of euthanasia, enacted by the legislative assembly. in the case of the australian capital territory, to disallow legislation successively enacted to permit ‘civil unions’ and then ‘civil partnerships’ for same-sex couples. 41 ic (n 1) article 239. 42 ac (n 1) section 122 (‘may allow the representation of such territory in either house of the parliament to the extent and on the terms to which it thinks fit’). the australian and indian constitutions, similarities, differences and the challenge of constitutional choice the denning law journal 25 representation of the electors in the territories in the federal parliament was twice upheld by the high court of australia.43 4. common market: one of the most important provisions of the australian constitution was that which ensured that throughout the continental nation there would be a common single market which could not be diminished by state laws that imposed taxes or fiscal impediments aimed at securing local advantage. in the australian case, the provision (which became one of the most litigated under the constitution), s.92, declared that ‘on the imposition of uniform duties of customs, trade, commerce and intercourse among the states, whether by means of internal carriage or ocean navigation, shall be absolutely free’.44 this provision was influential in the drafting of article 301 of the indian constitution. this declared that ‘subject to the other provisions of this part, trade, commerce and intercourse throughout the territory of india shall be free’.45 there were, of course, important textual differences between the two provisions. the adjective ‘absolutely’ was prudently deleted from the indian text. as well, specific contemplation of the enactment of derogations was mentioned in the indian case. moreover, the derogations referred to in pt xiii of the indian constitution were expressed in broad terms such as ‘public interest’46 and ‘reasonable restrictions’.47 notwithstanding these differentiations, and the practical necessity in australia to read down somewhat the requirement of ‘absolutely free’, the respective provisions have been utilised in the development, under both constitutions, of a free market avoiding informal taxes whilst allowing sensible regulatory control.48 the adoption of a common market in both countries has been an extremely important contribution by the constitution and lawyers to the economic advancement of each country. economic development goes hand in hand with legal, social and human development. the free market provisions in india and australia have been extremely important for nation-building and preventing the dangers of selfish localism in each country. 43 western australia v the commonwealth (first territory senators’ case) [1975] 134 clr 201; queensland v the commonwealth (second territory senators’ case) [1977] 139 clr 585. 44 ac (n 1) section 92. 45 ic (n 1) article 301. 46 ic (n 1) article 302. but see article 303. 47 ic (n 1) article 304(b) but subject to a proviso. 48 see for example automobile transport (rajasthan v state of rajasthan [1963] scc 491, 521 (das j) applying duncan v state of queensland [1916] 22 clr 556, 573. 26 5. specially vulnerable citizens: both in india and australia, it was recognised that there were specially disadvantaged groups and individuals who might need extra protection under the constitution and legal differentiation for that purpose. the vulnerable communities were, in each case, a product of history. in australia, the point of differentiation was generally race, skin colour and ethnic culture. in india the points of differentiation were caste, religion and associated prejudices. in australia, the colonists faced opposition from the british government and the imperial parliament in relation to their endeavours to impose racial differentiations that were deemed embarrassing in other british possessions. however, the australian colonists insisted on a ‘white australia’ immigration policy in the 19th century and much of the 20th. that policy was to last in all, nearly seventy years. the settlers, voting through their colonial legislatures, also insisted on a power to enact laws based on racial grounds and on discrimination against the aboriginal people of the continent. in india, the points of differentiation included religious differences that were ultimately to result in the partition of the former british india and an only partly solved problem affecting ‘certain classes’, namely ‘the scheduled castes’ and ‘the scheduled tribes’ in the autonomous districts of assam.49 in india, special representation for the ‘anglo-indian community’ was also provided for in the house of the people.50 the adoption in australia of a specific power in the federal parliament to enact laws ‘with respect to the people of any race, other than the aboriginal race in any state, for whom it is deemed necessary to make special laws’51 was not intended to be a provision for the rapid advancement of minorities by reference to their races. essentially, it was intended to be a federal power to continue discriminatory laws on the grounds of race that had existed in colonial times. these included laws adverse to the rights of aboriginal people of australia; but also to torres strait islanders, pacific islanders and people of chinese and other asian origins. the settlers believed that they were entitled to maintain a society similar to that built by their settler forebears. that required, so they thought, the power to exclude, disadvantage or expel non-caucasian people. eventually, in 1967, by one of the rare alterations to the australian constitution adopted with the approval of the electors,52 the exclusion of authority to make laws for the aboriginal race in any state was itself removed. 49 ic (n 1) pt xvi, article 330. 50 ic (n 1) article 331. 51 ac (n 1) pt xxvi, section 51. 52 ac (n 1) section 128. the constitutional amendment was effected by constitutional alteration (aboriginals) 1967 (cth) act no 55 of 1967. the australian and indian constitutions, similarities, differences and the challenge of constitutional choice the denning law journal 27 this permitted the federal parliament, thereafter, to make special laws for people of the aboriginal race. this was intended to be for the advancement of such people in australia under federal law. another prejudicial provision was wholly repealed, namely section 127 of the original australian constitution. this had relieved the federal authorities from counting the aboriginal population in the national census. that provision had assumed that the aboriginals would basically disappear by assimilation and that counting them was more trouble than it was worth. the divisive burden of australian constitutionalism was therefore race. in part, this remains the present position as recent enactments on the treatment of refugee applicants demonstrate. the burden in india was principally religion, and specifically as between hindus and islamic indians. this was, in part, resolved by the division of the sub-continent in 1947. however, empowerment of special provisions for the representation and different treatment of indian nationals by reference to their caste and tribe (where such special provision was thought necessary) was adopted. in neither the australian nor indian case would law, or a bold stroke of the constitution, remove the derisive burden on each society. law, and legal discrimination, are only part of the problem. both australia and india remain today subject to special constitutional provisions addressed to race (in the case of australia) and to caste and tribe (in the case of india). neither india nor australia has resolved their deep social challenges on the basis of these respective constitutional provisions.53 however, those provisions have signalled that this is a challenge to be addressed. it is work in progress. in each case, it is a challenge that edits on the face of constitutional text. constitutional differences 1. autochthonous law: the australian constitution is, historically, a product of an imperial statute enacted by the uk parliament.54 in subsequent judicial reasoning, the high court of australia has declared that the true foundation of the sovereignty expressed in the australian commonwealth is the will of the australian people.55 although that will was expressed historically in referendums supporting the successive draft texts for the australian federal constitution in the 53 kartinyeri v the commonwealth [1998] 195 clr 337. 54 commonwealth of australia constitution act 1900 (imp) (63 & 64 vict c 12). 55 kirmani v captain cook cruises pty ltd [1985] 159 clr 351, 441–42; breavington v godleman [1988] 169 clr 40, 123; leeth v the commonwealth [1992] 174 clr 455, 485–86; mcginty v western australia [1996] 186 clr 140, 230. 28 1890s, the fact remains that it was considered necessary for the australian colonists to procure the transfer of legislative power by an imperial enactment. this was also the way in which legislative power was transferred initially to the original american colonies of great britain and subsequently to canada (1867), new zealand (1907), south africa (1910) and ireland/eire (1923). the original plan for india was for a similar imperial statute (new zealand’s alteration had been by royal proclamation) constituting the dominion of india,56 a plan postponed following the outbreak of war in 1939 until the end of hostilities.57 eventually, it was given effect with the partition and independence of india in 1947. after 1949, the character and status of the indian constitution was different. the constitution of india begins, in its preamble, with the assertion: ‘we, the people of india, … in our constituent assembly this twenty sixth day of november nineteen forty nine do hereby adopt, enact and give to ourselves this constitution.’58 inevitably, both in australia and india, there are legal links to the preceding enactments of the united kingdom parliament. those links are unbroken in the case of australia. in the case of india they are deliberately severed by the interposition of the constituent assembly and the specification, in terms, of the source of the popular authority for the indian text. nehru and other independence leaders such as jinnah were insistent on this severance. whatever arguments can still arise in australia about the grundnorm of the australian constitution59 there is no such doubt in the case of india. politically, spiritually and textually, it is people of india. 2. crown and republic: consistent with this change, a fundamental feature of the basic structure of the constitution of india is that it is a sovereign, democratic republic.60 australia, on the other hand, is a constitutional monarchy. by section 2 of the imperial act of 1900 it is stated that ‘the provisions of this act referring to the queen shall extend to her majesty’s heirs and successors in the sovereignty of 56 government of india act 1919 (uk); government of india act 1935 (uk) and indian independence act 1947 (imp) (10 & 11 geo vi ch 30) section 7. see now ic (n 1) article 6(b) and 8. 57 ic (n 1) article 6(b), 361a(15) and 367(1). 58 ic (n 1) preamble. 59 a ‘fundamental’ or ‘basic’ legal norm or foundation of the constitution. see j stone, human law and human justice (maitland 1965) 233–36 discussing g radbruch’s grundnorm. 60 ic (n 1) preamble. the australian and indian constitutions, similarities, differences and the challenge of constitutional choice the denning law journal 29 the united kingdom’.61 the oath of allegiance contained in the schedule of the australian constitution requires loyalty to the queen ‘her heirs and successors according to law’.62 the oath of allegiance provided for in the third schedule to the indian constitution requires ‘true faith and allegiance’ to ‘the constitution of india, as by law established’.63 although there had been discussion in the australian colonies, prior to federation, about adopting a republican form of government, after the model of the united states of america, this was not favoured by a majority, at that time. a proposal, by referendum, to delete references to the queen and the crown in the australian constitution was submitted to the electors of the commonwealth in 1999. it did not secure a majority vote of the electors in a single state, although the australian capital territory voted in favour.64 discussion concerning a republic on the demise of the crown has again arisen in australia. however, change may be delayed during the life of the present monarch. many previous dominions of the crown (although not all) became republics upon achieving self-government and independence after 1947. the compromise formula by which king george vi became ex officio the head of the commonwealth of nations was invented by prime minister jawaharlal  nehru and was adopted at the commonwealth prime ministers’ conference in 1949.65 when dr daniel malan of south africa said that such a division of functions was impossible in the case of a monarch who was a living person, nehru replied: have you perhaps heard of the father, the son and the holy ghost?66 divisibility was then accepted. india, as australia wished, remained a member of the ‘commonwealth of nations’. it is not properly styled the british commonwealth. it is a group of independent nations most (but not all) of which are now republics and most (but not all) have a history of british colonial rule.67 61 imperial act 1900 section 2. 62 ac (n 1) schedule. 63 ic (n 1) schedule iii. 64 the republican referendum was held on 6 november 1999. it resulted in a 44.74 per cent voted in favour; 54.40 per cent against. 65 d fettling, ‘when chifley met nehru: compromise in the international order’ in j schultz and j camens (eds), commonwealth now (59th edn griffith review, 2018) 68, 74. 66 ibid. 67 for example, mozambique and rwanda were never ruled by britain. cameroon was a condominium as were the new hebrides (since 1980, vanuatu). 30 india became a republic. so, later, did pakistan, sri lanka and bangladesh. burma (myanmar) did also, although it did not apply to join the commonwealth of nations. the nehru compromise, continued on the accession to the crown of queen elizabeth ii. it remains in place to this day. india remains a republic. australia remains a constitutional monarchy. the monarch of the united kingdom (and other realms and territories, including australia) remains, at least at this time head of the commonwealth. 3. evolution and freedom struggle: whereas australia’s emergence as an independent nation was gradual and substantially evolutionary, india’s was the result of a long and sometimes bitter struggle, involving bloodshed, the imprisonment of many indian leaders and acrimony together with recriminations. there was some acrimony concerning particular aspects of the proposed australian constitution. most of the differences in the negotiations concerned the retention of the judicial committee of the privy council. some australian colonists urged termination of appeals, noting the difficulty that british officials including judges had with understanding federalism, a concept alien to their legal and constitutional system. the british negotiators, led by joseph chamberlain, secretary of state for the colonies, considered that the privy council should be retained, in part (inferentially) to protect the large british investments in australia.68 in the end, the draft australian constitution submitted by the colonists was amended to retain appeals to the queen in council, including in defined constitutional matters. however, two exceptions were provided. there were to be no appeals in questions involving the limits of constitutional powers in respect of a contest between federal and state powers. and the federal parliament was empowered to ‘limit’ matters in which leave might be asked of the privy council. any law providing such proposed limitations was required to be reserved for the personal decision of the monarch.69 eventually, by an enactment of the federal parliament and each state parliament and of the united kingdom parliament in 1984, all remaining australian appeals to the privy council were ended by the australia act 1986. in india, from the start of the republican instrument, the constitution provided for a completely independent system of courts. indeed, it provided not only for the 68 d headon and j williams, makers of miracles – the cast of the federal story (melbourne university press 2000) 202–08. 69 ac (n 1) section 74. the australian and indian constitutions, similarities, differences and the challenge of constitutional choice the denning law journal 31 national supreme court70 and the high courts of the states,71 but also for the appointment of subordinate courts72 and for high courts in the union territories.73 it allowed no exceptions and specifically no residual right to appeal to the privy council. the important role that court and the earlier federal court of india had played in the governance of india was brought to an end. citation of indian privy council and federal court authorities continued, as part of the seamless preservation of existing legal rights and duties, not otherwise affected by the indian constitution. seamlessly, the last chief justice of the federal court of india (justice sir harital jekisundas kania) became the first chief justice of the supreme court of india on 26 january 1950. 4. subject and citizen: at the time of federation, australians enjoyed a single nationality, namely that of british subject. this had also been the status of all persons in british india. upon federation, both countries contemplated the retention of a single, undivided nationality. upon the advent of the republic in india, the status of subject of the british crown was terminated.74 provision was made for the citizenship of persons born in the territory of india or either of whose parents had been born in that territory.75 particular provision was made to cover the influx of persons whose parents or grandparents had been born in india, as defined by the government of india act 1935.76 the status of citizenship of australia was not expressly mentioned in its constitution. no power was conferred expressly to enact a law on citizenship; but there were express provisions to allow the federal parliament to make laws in respect to ‘naturalization and aliens’;77 and ‘immigration and emigration’.78 moreover a provision for the disqualification of election to the federal parliament included any person who ‘is under any acknowledgement of allegiance, obedience 70 ic (n 1) pt v, ch iv, article 124–47. see also pt v, ch vi. 71 ic (n 1) article 125–38. 72 ic (n 1) pt vi, ch vi. 73 ic (n 1) pt viii, section 241. see also pt xvia (‘tribunals’). 74 cf. joyce v director of public prosecutions [1946] ac 347 (hl). the defendant was a us citizen but held a british passport. after the outbreak of war in 1939 between great britain and germany, joyce broadcast talks in english hostile to britain. his conviction of treason was upheld despite his assertion of termination of his status as a british subject. cf. now in australia re canavan [2017] 91 aljr 1209 concerning section 44(i) of the ac (n 1). 75 ic (n 1) article 5. 76 ibid article 6(a) and (b). see also article 7. 77 ac (n 1) section 51(xix) 71. 78 ac (n 1) section 51 (xxvi). 32 or adherence to a foreign power, or is a subject or a citizen or entitled to the rights and privileges of a subject or a citizen of a foreign power’.79 the first mention of australian citizenship appeared in a 1948 federal statute.80 until much later, australians travelling overseas carried a passport declaring they were a ‘british subject and australian citizens’.81 it was by the provisions of the indian constitution, and local law, that australians and indians for the first time in 1950, in the case of most, obtained a different nationality status. determined to carve out different, distinctive and local citizenship, india originally went in a direction different from australia. however, subsequent australian legislation proceeded to catch up. it dropped references to the status of ‘british subject’ and, for the future, removed the privileged treatment that united kingdom citizens had essentially enjoyed equivalent to the rights of australian citizens.82 in this matter, india led the way. australia followed as it ought to assert, and provide for, its separate nationhood. 5. fundamental rights: it is not quite true to say that the australian constitution contains no provisions for the protection of the fundamental rights of those living under its protection. thus, a number of express provisions protect the right to enjoy just terms on the acquisition of property under federal law;83 and the right to trial by jury in certain federal criminal matters.84 moreover, non-discrimination against residents of different states is guaranteed;85 as is the free exercise of any religion and invalidation of establishing a religion, imposing religious observance or obliging religious tests to be applied as a qualification to specified offices.86 there are also implied protections in the australian constitution against laws interfering with free speech, essential to the attainment of the democratic system established by the constitution.87 additionally, there are implied guarantees of judicial independence and impartiality that have been 79 ac (n 1) section 44(i). 80 australian citizenship act 1948 (cth). 81 kim rubenstein, ‘citizenship and the centenary – inclusion and exclusion in 20th century australia’ (2000) 24 melb u l rev 576, 582–88. 82 re patterson; ex parte taylor (2001) 207 clr 391. 83 ac (n 1) pt xxxi, section 51. 84 ac (n 1) section 80. 85 ac (n 1) section 118. 86 ac (n 1) section 116. 87 lange v australian broadcasting corporation [1997] 189 clr 520. the australian and indian constitutions, similarities, differences and the challenge of constitutional choice the denning law journal 33 spelt out from the separate constitutional treatment of the judicature.88 it has also been repeatedly said that the constitution impliedly demands observance of the rule of law. however, the foregoing list constitutes a meagre collection of rights when contrasted with those in the indian constitution. emphasising their importance, ‘fundamental rights’ are collected in pt. iii of the indian constitution. they include the rights to equality; to freedom; to protection against exploitation; to freedom of religion; and to cultural and educational rights. the foregoing provisions, followed immediately by pt iv of the indian constitution (‘directive principles of state policy’), indicate more clearly the way in which that charter is designed to enlarge and protect the rights of natural and legal persons in india. by way of contrast, the australian document basically leaves the protection of such rights to the enactments of the parliament, on the assumption that (being regularly democratically elected) it will safeguard the provision of fundamental rights to those subject to its enactments. unfortunately, much experience shows that, whilst an elected legislature is generally well placed to protect and respond to pressure from majorities and powerful interests, it is not necessarily so well organised (or inclined) to protect vulnerable and unpopular or comparatively powerless minorities.89 the recognition that this was so explains the adoption of the united states constitutional bill of rights and similar provisions in virtually all national constitutions drafted in the 20th century. the australian constitution, having originated in the 19th century, reflects a somewhat naive faith in the legislature that sometimes needs to be supported, stimulated and provoked by the intervention of courts, tribunals and officials. the directive principles of state policy in the indian constitution copied an idea borrowed from the irish constitution of 1923. it is the early drafting and duration of the australian constitution that explains why it is largely bereft of express provisions protecting fundamental rights and desirable policies. the canadian constitution has now been supplemented by the canadian charter of rights and freedoms. in new zealand, general human rights laws have been enacted based on international 88 ac (n 1) ch iii. see r v kirby; ex parte boilermakers’ society [1956] 94 clr 254; cf. ic (n 1) article 50 (separation of judicial from executive power). 89 the melbourne corporation v the commonwealth [1947] 74 clr 31, 82; plaintiff s157/2002 [2003] 211 clr 476, 513 [103]; durham holdings pty ltd v new south wales [2001] 205 clr 399. 34 treaty law, as has also happened in the united kingdom, the original source of hostility to such provisions.90 the south african constitution has now embedded large and novel provisions as to basic rights.91 it now contains substantial statutory protections of fundamental rights. however, an attempt to insert various protections against state laws in the australian constitution failed in 1988. two legislative attempts and many proposals for a federal statute of fundamental rights in australia have failed to attract federal parliamentary support. the usual explanation given is that such laws would create activist judges; politicise the judiciary; diminish the legislature; and are not needed in a democratic society. 6. protection of religious freedom: although, as stated, the australian constitution does contain some provisions for the protection of freedom of religion, the language of s.116 of the australian constitution has been given a very narrow reading by the high court of australia. although in one case the court defined religion broadly, emphasising a universal spirituality over a particular religious doctrine,92 in another, a majority of justices gave the prohibition on the ‘establishment’ of religion an extremely narrow meaning.93 that meaning was suggested to be, essentially, to prevent any religion being given the status of the established state religion, as enjoyed by the church of england in the united kingdom. because any such risk had receded following the earliest days of australian colonisation, this was an interpretation that ignored the background of history against which the australian constitution had been written. it also failed to give the guarantee any functional work to do. yet such work was necessary to prevent the abuse of political power by religious organisations and the effective imposition of religious beliefs upon persons who did not share those beliefs, especially when done at public expense. this was a necessity appreciated by the decisions of the supreme court of the united states, dealing with substantially the same language contained in the first 90 human rights act 1993 (nz). see further g palmer and m palmer, bridled power, new zealand government under mmp (oup 1987) 229–31, 265; human rights act 1998 (uk). 91 for example, provisions forbidding discrimination on grounds of sexual orientation and providing for economic social and cultural rights (right to healthcare, housing, etc.). 92 church of the new faith v commissioner of payroll tax (vic) [1983] 154 clr 120. 93 attorney-general (vic) ex rel black v the commonwealth (defence of government schools case) [1981] 146 clr 559; luke beck, religious freedom and the australian constitution (routledge 2018). the australian and indian constitutions, similarities, differences and the challenge of constitutional choice the denning law journal 35 amendment to that country’s constitution.94 in the united states, strict limits have been imposed on public financial support for religious institutions.95 in australia, direct subventions to organised religious bodies to support their schools and other institutions have been upheld. so too have been provisions to support religious events and celebrations (like world youth day).96 7. secularism: in india, the divisions between hindu, sikh and buddhist members of the population and islamic adherents erupted into bloody conflict during the partition in 1947–49. that action followed the decision to create two successor states to the dominion of india, namely india and pakistan. that terrible period of conflict has had no parallel in australia where, until recently, the overwhelming majority of the population identified as christian, although divided into denominations often reflecting traditional animosities and rivalries. even these divisions have been reduced in importance in recent decades in australia with the decline in church attendances by the population and the increasing number of australian citizens responding to the national census question that they have ‘no religion’ (currently about 20 per cent). the commitment to a ‘secular’ republic in the preamble to the constitution of india confirms that, unlike pakistan, the indian state has no official religion. the preamble is part of the constitution of india. it asserts that the state makes no discrimination on the grounds of religion. reinforcing this ideal, article 25 of the constitution declares that ‘all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion being available to all religions equally’. this provision has been viewed as conducing to secularism. the specific relevance to the active engagement of professing, practising and propagating religion has been held to take the protection of the indian provision beyond holding or believing particular aspects of religious faith or doctrine.97 the right to communicate beliefs has held not to include a right to forcible instruction or conversion.98 limits are specifically spelt out on the imposition of taxes, the proceeds of which are appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.99 nor may 94 lemon v kurtzman 403 us 602 [1971]. see also everson v board of education of ewing (1947) 330 us 1. 95 larkin v grendel’s den inc [1982] 459 us 228. 96 defence of government schools case (n 93). 97 kesavananda bharati v state of kerala [1973] 4 scc 225. 98 commission for hindu religious endowment v lakshmindra [1954] scr 1005; stainslaus v state of mp [1977] sc 908. 99 ic (n 1) article 27. 36 religious instruction be provided within any educations institution ‘wholly maintained out of state funds’.100 this last provision contrasts with a practice that crept into some colonial laws during the 19th century in australia, by which ‘special [religious] instruction for one hour a week’ was permitted in publicly funded schools.101 this ‘compromise’ continues to be followed in most parts of australia more than a century later. in some states parents and children can opt out of such denominational religious instruction.102 although in india the affirmative protection of ‘freedom of conscience’ and the free ‘practise … of religion’ does not extend expressly to ‘freedom from religion’, i.e. the entitlement to be free from propagation or practice of religious beliefs, such a freedom is inherent in secularism. it involves reading down the religious entitlements of some people so as not to be inconsistent with the religious and non-religious entitlements of others. the secular character of government, enshrined expressly in the indian constitution and partly expressly and partly implicitly in the australian constitution are amongst the most valuable characteristics of the respective governmental qualities, derived from the general tradition of the united kingdom and its laws. in australia, because of the narrow interpretation of the prohibitions in s.116 of the australian constitution, controversial decisions have sometimes upheld contested taxation advantages for religious institutions.103 with the growth of the political influence of faith organisations, associated with particular religions, in both india and australia, it must be expected there will be more challenges to the ambit of constitutional guarantees and prohibitions on the grounds of religion in coming years. 8. judicial appointment and retirement: initially, the australian constitution made no provision for the retirement for the justices of the high court of australia or other federal courts, once appointed. this omission was interpreted by the high court of australia to imply that, as in the united states, federal judges were appointed for life. in the australian colonies and later the states, legislation provided for the retirement of judges. the retiring ages differed, 100 ic (n 1) article 28. 101 the education and training reform act 2006, section 2.2.11. 102 see for example public instruction act 1880 (nsw) sections 17–18. 103 federal commissioner for taxation v word investments pty ltd [2008] 236 clr 204 in which a taxation advantage for a religious organisation, whose objectives included the propagation of religion, was extended (over the writer’s dissent) to a funeral business. see word investments 252, [124]. the legislative provision was subsequently corrected to reflect the minority view. the australian and indian constitutions, similarities, differences and the challenge of constitutional choice the denning law journal 37 mostly according to the status of the court to which the judge was appointed. most state supreme and district court judges served to age seventy (in victoria 72). magistrates and some industrial court judges served to age sixty-five. in recent years, these retiring ages have been increased in the australian states and territories to age seventy-two and in some cases (with approval of the chief justice) to age seventy-five. the introduction of a power to enact an age of retirement for federal judges was addressed in an amendment to the australian constitution adopted following the constitution alteration (retirement of judges) 1977. that alteration expressly provided, in respect of justices of the high court, that future appointees could serve until attaining the age of seventy years. it was left to the parliament to decide the maximum age of retirement for other federal judges, although the maximum was later enacted as seventy years.104 the term of appointment of justices of the supreme court of india lasts ‘until he attains the age of sixty-five years’.105 the term of a judge of a state high court is until he attains the age of sixty-two years.106 these are very low judicial retirement ages by comparison with most countries. they are influenced by the provisions formerly applicable to the judiciary in colonial times and in the dominion of india where most of the judges, before 1935, were british officials who returned ‘home’ on pensions after the completion of their judicial service. there appears to be no good reason of principle why such early retirements should continue to be imposed in india. this is particularly so given the indian tradition (not observed in australia) of invariably appointing as chief justice the judge next in seniority to the retiring incumbent. that tradition has itself meant that many chief justices of india have served extremely short periods of time because of the inevitable proximity of their 65th birthday. suggestions have occasionally been made for the adoption of later retirement ages for the supreme and high courts, but with no avail. inferentially, the political consensus has not been present to permit the amendment. no difficulties have followed australian state provisions for the extension for the normal service of superior court judges. nor have difficulties arisen from the removal of life tenure and the substitution of attaining seventy years, in the case of federal judges. life tenure restricts the regular and desirable turnover of high officeholders appropriate to an age of rapid technological and social change. extending judicial service in india to sixty-eight or seventy years would appear to be a sensible means of avoiding wastage of valuable, accumulated, judicial 104 ac (n 1) section 72 (paras 2, 3 and 4 inserted 1977). 105 ic (n 1) article 124(2). 106 ibid. 38 experience with no commensurate return. i express this opinion as one who is in favour of judicial retirement as a means of ensuring change in the enjoyment of all public offices, given the desirability of reflecting generational change in the community that is served. 107 9. emergency provisions: there is no express provision in the australian constitution for the suspension of the parliament or any other constitutional institution and the substitution of emergency rule. nor has any such emergency been authoritatively suggested to interrupt the operation of the constitution. various national security regulations and specific laws were enacted in australia during the two world wars.108 however, these were an application of the constitution, not an interruption of it. views have been expressed in australia that a power to invoke a ‘special emergency prerogative lies dormant in the fabric of executive powers [in the australian constitution]. it has been suggested that such a prerogative awaits activation in the face of extreme necessity.’109 another assertion has been made of an extraordinary prerogative which extends to the assumption of legislative power when the legislative arm of government is paralysed. in recent years, the enactment of laws on anti-terrorism has greatly enlarged the executive power in australia concerning terrorism.110 in a majority decision anti-terrorism legislation enacted by federal and state governments and introduced after 2002 was upheld over my dissent.111 justice hayne joined in rejecting the assertion that the defence power, provided under the australian constitution, was enlarged to afford the federal government a constitutional foundation for military and naval defence for domestic purposes. i considered that such a view was incompatible with the constitutional text and with the strong earlier decision of the high court of australia in australian communist party v the commonwealth.112 in that decision the court insisted that neither the government nor the federal parliament could ‘recite’ itself into constitutional power simply by asserting a danger in a statute.113 107 ic (n 1) article 217. initially this provided for retirement at age sixty. this was extended following the constitution, fifteenth amendment act 1963 (in) section 4. 108 h p lee, emergency powers (law book co 1984) 322. see also m head, emergency powers in theory and practice – the long shadow of carl schmitt (ashgate 2016) 211. 109 ibid 171–72. 110 thomas v mowbray [2007] 233 clr 307. 111 ibid (gleeson cj, gummow j, callinan j, heydon j and crennan j). 112 australian communist party v the commonwealth [1951] 85 clr 30. 113 ibid 187 (dixon j). the australian and indian constitutions, similarities, differences and the challenge of constitutional choice the denning law journal 39 in the indian constitution, express provision is made for the proclamation of an emergency.114 the precondition for such a proclamation is the satisfaction of the president of india ‘that a grave emergency exists whereby the security of india, or of any part of the territory thereof is threatened, either by war or external aggression [armed rebellion]’.115 such a proclamation is only to last for a maximum period of six months.116 further provisions are made for a case of satisfaction by the president of ‘a situation … in which the government of the state cannot be carried on in accordance with the provisions of this constitution’.117 despite the suspension and enforcement powers provided for in these provisions, the ordinary operation of the constitution of india has been maintained with few interruptions. most importantly, the military forces have avoided intrusion into civilian government which has been such a feature of many postcolonial nations. 10. amendment provisions: finally, it is appropriate to mention the very different amendment provisions provided for in the australian and indian constitutions. the australian provision was copied from a model derived from switzerland.118 for a formal amendment to the text of the constitution, a proposed law for the alteration must have passed with an absolute majority through each house of the parliament. it must then be submitted to the electors in each state and territory of australia. a referendum must then be held. the law may not be presented to the governor-general for the royal assent unless a double majority of the electors voting is secured. there must be a majority of the national vote in favour of the proposed law and a majority in favour recorded in a majority of the states of australia (i.e. in four of the six states).119 these provisions have proved extremely challenging for those who have proposed changes to the australian constitution. in the 117 year history of the australian commonwealth, there have been 44 proposals for the amendment of the constitution. only 8 of these have succeeded. in the case of some proposals, 114 ic (n 1) article 352. 115 ibid. 116 ic (n 1) article 252(5). 117 ic (n 1) article 35. 118 ac (n 1) section 128. 119 a r blackshield and g williams, australian constitutional law and theory (6th edn federation press, 2014) 1338. of the eight proposals that secured the double majority requirement in ac (n 1) section 128, seven of them won majorities in every state. 40 where the suggested amendment has been submitted successfully two or three times, the experience has been that the proposal has been lost again, usually with an increased majority of opponents. similarly, analysis has shown that if the double majority requirement were removed and it were sufficient to secure a national majority for alteration and a majority in three of the six states, the number of referendums that would have been adopted would not have been increased. constitutionally speaking, australia is therefore a nation where it is extremely difficult to secure a formal amendment to the constitution. only possibly the united states of america has a constitutional amendment requirement in which it is more difficult to succeed. given the huge population of india, its many unique challenges, the responsibilities imposed on its institutions of government, for such a large segment of humanity, and the perils that accompanied its emergence to nationhood as well as the length and detail of the constitutional text it is not surprising that the provisions for amendment of the constitution should have been markedly simpler and more flexible. a power is granted to the parliament of india, to add to, vary or repeal ‘any provision of this constitution’120 in accordance with the provisions laid down. the general requirement is that the bill proposing the amendment must be passed in each house of parliament by a majority of not less than two-thirds of the members of that house present and voting.121 certain special provisions are made in the case of certain amendments. and it is declared ‘for the removal of doubts’ that ‘there shall be no limitation whatever on the constituent power of parliament to amend by way of addition, variation or repeal the provisions of this constitution under this article’.122 notwithstanding the last mentioned emphatic provision, and the purported prohibition on any court calling into question an amendment passed in accordance with the article,123 the supreme court has repeatedly held the privative clause excluding judicial review to be incompatible with the indian constitutional scheme as to the distribution of powers.124 the court has determined, on the contrary, that the ‘amendment’ power is subject to the ‘basic structure’ of the constitution because an amendment must leave sufficient of that which is ‘amended’ in place in order to be ‘amendment’. it must not be characterised as an overthrow of the constitution as a whole.125 120 ic (n 1) article 368(1). 121 ic (n 1) article 368(2). 122 ic (n 1) article 368(5). 123 ic (n 1) article 368(4). 124 indira gandhi v raj narain air [1975] sc 2299. 125 kesavananda bharati v state of kerala air [1973] sc 1461 [292], [437], [555]–[575], [599], [664]–[665], [691]. see also [251]–[252] (khanna j). the australian and indian constitutions, similarities, differences and the challenge of constitutional choice the denning law journal 41 in australia, the importance attached throughout the life of the constitution to the judicial power in ch iii of the constitution might conceivably invite similar reasoning, in the event of a relevant challenge.126 for example an attempt to change the australian constitution from a constitutional monarchy to a republic might possibly fail, unless the change was approved by the electors in every jurisdiction of the commonwealth. this is because each constituent part of the australian commonwealth is itself a constitutional monarchy. accordingly, an amended commonwealth that was partly republican and partly monarchical might be held antithetical to the scheme of the ‘alteration’ of something so basic. this question has not yet been considered by the high court of australia. but the ‘basic structure doctrine’ in the context of the indian constitution, affords food for thought. it is not surprising that the indian and australian constitutions were so basically similar and that the inevitable differences in their provisions can be confined to specifics. after all, until 1935, india was moving towards full dominion status in the british empire as australia had earlier done. the four pillars still standing in the forecourt of secretariat building in new delhi conformed to lutyens grand scheme and his instructions. those pillars honour canada, australia, new zealand and south africa. india was planned to be next. inevitably the constituent assembly, drafting the india constitution, drew on the earlier drafts. so there remain many strong constitutional similarities. their existence should encourage greater knowledge and awareness in both india and australia of our shared constitutional heritage, so that we continue to learn from each other. closing reflection: our better angels 1. race: i have reviewed some of the main points of similarity and difference between the indian and australian constitutional documents. however, before parting from this subject, i will visit two particular topics to show the ways in which, sometimes, the interpretation of constitutional principles can take a wrong turning or a right turning. of course, whether it is ‘wrong’ will usually depend on differing opinions. objective error may not become clear for decades or even longer, if ever. constitutional texts and doctrine, being expressed in words, will often be ambiguous. my teacher of jurisprudence, professor julius stone, insisted that judges have ‘leeways for choice’127 in declaring the correct law. especially so in 126 boilermakers’ case [1956] 94 clr 254, 267, 270–74. 127 j stone, social dimensions of law justice (maitland 1966): a view propounded by karl llewellyn. 42 constitutional law where the language is often opaque and the values at stake so contestable. stone urged that, in the choices they made, judges should be transparent and honest in the reasoning they offer in justification. sometimes in making the choices the judges’ lesser angels will prevail. at other times their ‘better angels’128 will gain the upper hand. every constitutional court or decision-maker is challenged from time to time by cases presenting particular issues. it is the nature of constitutional law that it will often raise contests about fundamental questions going to the very heart of the governance of the people. where those questions concern particular minorities in the nation’s population they demand a special wisdom on the part of the decision-makers. this is true in india as it is in australia. in these closing remarks, i refer to two special areas in which australian constitutional decisionmaking has presented difficult questions for decision by the apex court. similar issues can arise in india. accordingly, where relevant, i will refer to indian instances. i begin with the issue of race. the history of the 20th century demonstrated, in many places, the deep wells of prejudice and hostility that can arise concerning racial minorities, including in constitutional adjudication. it happened many times in the united states in relation to the african-american minority.129 likewise it has arisen in relation to hispanic-american and japanese-american nationals.130 later decisions significantly redressed the prejudice and discrimination evident in the earlier decisions. the ‘better angels’ of race came to the fore.131 in india, having in colonial times been subjected to unequal treatment on the grounds of religion, race, caste, sex and place of birth, it was unsurprising that the rights to equality, covering all of these grounds were expressly included in the fundamental rights guaranteed by the constitution.132 discrimination on the basis of race, caste, sex and place of birth remained a serious issue in independent india. however, from the beginning of the indian constitution, strong protections were provided. 128 shakespeare, sonnet no 144 (1599). cf. a lincoln, first inaugural address, 3 march 1861. 129 scott v sandford (dred scott case) [1857] 60 us 393; loving v virginia [1967] 388 us 1. 130 hirabayashi v united states [1943] 320 us 81; korematsu v united states [1944] 323 us 214. 131 see for example brown v board of education [1954] 347 us 483; griggs v duke power co. [1978] 438 us 59. 132 ic (n 1) article 15. the australian and indian constitutions, similarities, differences and the challenge of constitutional choice the denning law journal 43 this was not so in the case of the australian constitution. there was no acknowledgement of the aboriginal minority (although they were the first peoples and numbered between 1 and 2 per cent of the population). originally they were not counted in the census of the population.133 they were largely ignored and substantially deprived of civil rights essential for economic well-being, specifically to their land rights. a great indian jurist indirectly played a beneficial part in suggesting a novel remedial approach to this problem. in 1988, justice p n bhagwati, who had served as chief justice of india, chaired a meeting in bangalore, india, in which i participated. the meeting adopted principles that addressed humanity’s ‘better angels’ in a clear and practical way; but also a legal way. the bangalore principles on the domestic application of universal human rights norms, adopted at the conclusion of that meeting, suggested that, where there was ambiguity in the state of the law, a court should prefer the meaning or expression of the law that conformed to international human rights norms to one that did not.134 no differentiation was drawn between constitutions and other varieties of law. it was essentially this principle that was invoked by the high court of australia in the mabo decision in 1992.135 in that decision on the common law of australia, the majority of the high court of australia re-expressed the land law of australia so as to recognise, for the first time, the rights of indigenous people to traditional title to their lands. such recognition would be given where the traditional rights had not already been alienated to third parties as freehold or other inconsistent title.136 this was an important legal step forward for the indigenous people of australia. so was the later apology to them given in the federal parliament by prime minster kevin rudd.137 the constitutional text itself had been amended in 1967 to remove language that impeded the power of the federal parliament to enact laws favourable to the aboriginal people.138 133 ac (n 1) section 127. 134 the bangalore principles are annexed to m d kirby, ‘the role of the judge in advancing human rights by reference to international human rights norms’ (1988) 62 alj 514, 531–32. 135 mabo v queensland [no 2] [1992] 175 clr 1, 42. 136 wik peoples v queensland [1996] 187 clr 1. 137 the national apology to the indigenous australians was delivered in the house of representatives of the australian parliament on 13 february 2008 by prime minister kevin rudd. it was supported by the leader of the opposition, brendan nelson, the age (melbourne) 13 february 2008 and hansard (h of r) ibid. 138 amending ac (n 1) pt xxvi, section 51 (xxvi). 44 in 1998, a question arose as to whether the amended constitutional provision would, in its terms as amended, support new federal legislation that was arguably seriously adverse to the legal rights of aboriginal objectors.139 naturally, the attention of the justices of the high court of australia deciding the case, focused on the language of the legislative power given to the federal parliament. following the amendment by referendum in 1967, the relevant power was to make laws with respect to: ‘(xxvi.) the people of any race, for whom it is deemed necessary to make special laws: …’140 the argument for the federal government, supporting the challenged enactment, was that there was no ambiguity. a law limiting, restricting or diminishing the rights of aboriginal citizens was still a law ‘with respect to the people of any race for whom it had been deemed necessary by the federal parliament to make special laws’.141 they must take the good with the bad. otherwise every favourable enactment would be effectively constitutionalised. it could not be amended because any change arguably unfavourable would fall outside the power of amendment. i acknowledged this difficulty in my reasons. however, both for textual and contextual reasons, i concluded that it would be left to the courts to decide whether any particular enactment fell within power. the textual support lay in the use of the words ‘for whom’. this did not mean ‘with respect to’ whom because when the australian constitution intended that ambit, it said so specifically, as it did not the opening words of section 51 granting legislative power. the contextual elements were even stronger. the amendment to the constitution (one of the few which had secured the approval of the electors) was achieved against the background of the political and popular endorsement of a commitment to improving the legal, social and economic status of aboriginal people. it was not intended to support laws unfavourable to their interests. at least it should not be so interpreted. in support of that approach, i invoked the ‘interpretative principle’ expressed in mabo,142 reflecting the bangalore principles of 1988. as stated in mabo,143 one rule upon which the international law on human rights had been firm and unanimous was that laws should not be interpreted where another interpretation was available, that prejudiced individuals on the basis of 139 kartinyari v the commonwealth [1998] 195 clr 337. 140 ac (n 1) section 51 (xxvi). 141 ibid. 142 mabo v queensland [no.2] [1992] hca 23, 175 clr 1. 143 ibid. the australian and indian constitutions, similarities, differences and the challenge of constitutional choice the denning law journal 45 their race. in utilising the new power afforded by the large ambit of section 51(xxvi.) of the australian constitution, the terms of the grant of power should not be construed to sustain an adverse enactment144 my view was a minority one. the majority upheld the power to enact legislation that was undoubtedly adverse and arguably discriminatory. this case illustrates the importance in constitutional adjudication of the choices that fall to judges who enjoy the power and responsibility of decisionmaking. especially at the level of an apex court, decision-making in such cases is rarely cut and dried. inevitably constitutional values, sometimes illuminated by universal human rights, will have a part to play. 2. sexual orientation: an issue that was not generally discussed in polite legal circles at the time of the drafting of the australian or indian constitutions has lately arisen before many constitutional courts of the world including in india and in australia. i refer to the issue of discrimination, violence and criminalisation of a hitherto frightened and silent minority defined by reference to the sexual orientation and gender identity (lgbtiq).145 the reasons for the silence about this minority can be traced to a small number of now contested passages in scripture, specifically the jewish and christian bibles (and the holy koran). on the basis of these passages british administrators, ignoring any pre-existing views as to the ambit of criminal law, imposed serious criminal penalties on persons who were convicted of same-sex activity. such activity attracted, upon conviction, grave punishment (originally including the death penalty), allegedly because of the wrath of god towards those guilty of such conduct. the fact that ‘the offence’ occurred in private, between persons of full age and competence, and although they were consenting, was deemed irrelevant and provided no legal defence. such provisions were universal throughout the british empire. in the indian penal code (ipc)146 the provision appeared in s.377 in an otherwise astonishing legal achievement, it rendered indelible the stigmatisation of a significant population of the indian people. it was a relic of colonial thinking. yet, although it was abolished in the land of its origin in 1967147 144 kartinyeri v the commonwealth [1998] hca 22, 195 clr 337. 145 lgbtiq stands for lesbian, gay, bisexual, transgender, intersex or otherwise queer persons. 146 drafted by thomas babington macauley in 1937; enacted for the governor-general’s council in 1860; entered into force in 1862. 147 sexual offences act 1967 (uk). 46 and in all australian states by 1998,148 no effective steps have been taken by the indian parliament to repeal s.377. this is so, despite the increasing and worldwide knowledge of the scientific characteristics of sexual variation and the strong statements of the human rights committee of the united nations determining that such laws were inconsistent with universal human rights.149 in the face of legislative inactivity in india, proceedings were brought in the court to challenge the constitutional validity of the impugned provision. indian citizens and community organisations commenced proceeding in the court committing that s.377 of the ipc was invalid because it violated articles 14, 15 and 21 of the constitution. the arguments suggested that the section invaded the most private consensual activities of adult citizens; was contrary to the protections of life, dignity, autonomy and privacy provided by article 21 of the constitution; and violated the constitutional guarantee of equality under article 14 of the constitution; infringing also article 15 because sexual orientation was a ground analogous to sex, a protected category under the constitution of india. in the delhi high court a declaration was made by chief justice a p shah and justice muralidhar (constituting the court), that s.377 ipc, so far as it criminalised consensual sexual acts of adults in private, breached articles 14, 15 and 21 of the indian constitution. the court held that the terms of section 377 had to be read down so as to be confined in their operation to the constitutionally permitted ambit left over by the operation of the constitution. in a most impressive judicial opinion, the delhi high court held: if there is one constitutional tenet that can be said to be an underlying theme of the indian constitution, it is that of ‘inclusiveness’. this court believes that the indian constitution reflects this value deeply engrained in the indian society, nurtured over several generations. the inclusiveness that indian society traditionally displayed, literally in every aspect of life, is manifest in recognising the role in society for everyone. those perceived by the majority as ‘deviants’ or ‘different’ are not on that score excluded or ostracised. where 148 when the criminal code act 1924 (tas), sections 122 and 127 were repealed in 1998. this followed the enactment by the federal parliament of human rights (sexual conduct) act 1994 (cth) which in turn followed toonen v australia [1994] 1 int hum art rt reports 97 (no 3), decision of the un human rights committee. see croome v tasmania [1998] 191 clr 119. 149 ibid. there have been many other decisions of national and international courts on this topic, most of them favourable to the provision of protection and equality. see m d kirby, sexual orientation & gender identity – a new province of law for india (universal law publishing 2015). the australian and indian constitutions, similarities, differences and the challenge of constitutional choice the denning law journal 47 society can display inclusiveness and understanding, such persons can be assured of a life of dignity and a life of non-discrimination.… it cannot be forgotten that discrimination is the antithesis of equality and that it is the recognition of equality that will foster the dignity of every individual.150 the decision and orders in the naz foundation case151 were appealed to the supreme court of india. on 11 december 2013, that court, constituted by two justice bench in suresh kumar koushal v naz foundation,152 upheld the appeal despite the orders of the delhi high court and confirmed the validity of section 377 ipc. it thereby effectively ‘re-criminalised’ millions of lgbtiq indian citizens and others. the outcome caused dismay in national and international circles. but the most disappointing features of the decision lay in the reasoning of the supreme court. it had been delayed for a long interval and was delivered at the last moment, before the retirement of one of the justices. it was dismissive of the appeal to constitutional rights, which it was the duty of the court to determine. it referred to those rights as ‘so-called’ claims by the gay minority. it opined that determination of the matter was for parliament not the courts. this was despite the fact that no action had been taken to afford (or even consider) legislative change. a curative petition to allow consideration of the decision in koushal was brought, but has not yet been determined, although that petition is still alive. meantime, in another matter coming before the court in the justice puttaswamy case153 dr justice d y chandrachud,154 (after citing passages about the ‘so-called rights of lgbt persons’) stated:155 neither of the [stated] reasons can be regarded as a valid constitutional basis for disregarding a claim based on privacy under article 21 of the constitution. that ‘a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders’ as observed in the judgment of this court is not a sustainable basis to deny the right to privacy. the purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate the 150 naz foundation v union of india [2009] 4lrc 835 [130]–[131]; [2009] 1 dlt 277 (del hc). 151 ibid. 152 koushal v naz foundation [2014] 2 lrc 555; [2013] 15 scale 55; [2014] 1 scc 1. 153 justice puttaswamy, (unreported) 24 august 2017 (petition) 494/2012. the manuscript of the supreme court judgment comprised 547 pages. 154 with whom kehar cj, agrawal j and nazeer j conferred. nariman j, kaul j, robde j, sapre j, chelameshwar j wrote concurring reasons. 155 puttaswamy v union of india [2017] 10 scc 1 (justice ks). 48 exercise from the disdain of majorities, whether legislative or popular. the guarantee of constitutional rights does not depend on their exercise being favourably regarded by majoritarian opinion. the test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection. discrete and insular minorities face grave dangers of discrimination for the simple reasons that their views, beliefs or way of life does not accord with the ‘mainstream’ yet in a democratic constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties. sexual orientation is an essential attribute of privacy. discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. equality demands that sexual orientation of each individual in society must be protected on an even platform. the right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by articles 14, 15 and 21 of the constitution. the view in koushal that the high court had erroneously relied upon international precedents ‘in its anxiety to protect so-called rights of lgbt persons’ is, similarly, in our view, unsustainable. the rights of the lesbian, gay, bisexual and transgender population cannot be construed to be ‘so-called rights’. the expression ‘so-called’ seems to suggest the exercise of a liberty in garb of a right which is illusory. this is an inappropriate construction of the privacy based claims of the lgbt population. the rights are not ‘so-called’ but are real rights founded on sound constitutional doctrine. they inhere in the right to life. they dwell in privacy and dignity. they constitute the essence of liberty and freedom. sexual orientation is an essential component of identity. equal protection demands protection of the identity of every individual without discrimination.156 there were other criticisms of koushal157. because an appeal in that matter (or the curative petition) was not before the supreme court, it withheld relief and left this to a later time. however, given that in the privacy case158 the supreme court of india was comprised of a constitutional bench of nine justices, it would appear to be a decision favourable of the eventual restoration of the orders in the naz foundation159 case. most respectfully, i express the hope that this would be so. i would do so as a jurist, simply looking at the reasoning in koushal and the privacy case. however, 156 privacy case (n 139) [126], [127] (justice puttaswamy). 157 privacy case (n 139) [152]. 158 privacy case (n 139) [155]. 159 privacy case (n 139) [150]. the australian and indian constitutions, similarities, differences and the challenge of constitutional choice the denning law journal 49 i can add to those ingredients, my own experience as a member of the lgbt population in my own country. being on the receiving end of discrimination whether on the ground of race or sexual orientation is affronting, demeaning and sometimes dangerous. there have always been members of the sexual minorities in the legal and judicial profession. until recently, for safety, they were frightened into silence. now they are emerging into the full light. part of that light is shone by judges, like those of the supreme court of india participated in the privacy case. in constitutional adjudication, judges often have choices. those choices are illuminated by their constitutional values. those values can be informed by evidence, including scientific; international human rights law; and the reasoning of judicial colleagues in analogous circumstances in other jurisdictions. this is why comparative constitutional law is such a valuable tool of the modern judge and advocate. fortunately modern technology, the internet and access to information undreamed of by our predecessors is now available to us. australian lawyers can definitely learn from indian judges and lawyers. constitutions are special laws. fidelity to their origins and purposes will often require distinctive approaches. the world today, including the world of constitutional law operates in a universe of internationalism. where it is permitted by the text and encouraged by the purpose and context of the issue in question, even constitutional law can learn from international developments. nowhere is this more so than in universal human rights, that belong to all people everywhere, are in question. 155 the denning law journal 2018 vol 30 pp 155-166 comment commercial arbitration and information technology disputes richard b mawrey 1 the development of commercial arbitration as late as the 1960s there was an old gentleman in once smart, but now shabby, clothes who paraded outside the royal courts of justice in the strand, carrying a placard which read ‘arbitrate don’t litigate’. he was a famous character who had been around since the 1930s and he endeared himself to the judges who referred to him in several judgments.1 it is fair to say, however, that the old gentleman was usually referred to in order to make the point that, in the case before the court, his advice had been misleading because the arbitration had proved far more difficult and costly than proceeding by way of litigation in the courts. the civil procedure rules 1998 (cpr), by making litigation more complicated and thus more lengthy and expensive, had the effect (intended or not) of encouraging alternative dispute resolution (adr). parties were encouraged to find methods of compromising their quarrels without recourse to the courts. whilst one might query whether providing massive discouragement to citizens seeking to enforce their legal rights is entirely consistent with the rule of law, there is no doubt that the period of twenty years since the cpr came into force has seen a considerable growth in adr. mediation, early neutral evaluation and, in certain areas, adjudication have all increasingly been used to resolve disputes. whether this has any merit beyond saving the parties (and the state) money may be disputed. after all, when a case is compromised, it must in most instances mean that one party has got less than 100% of their legal rights and the other has evaded meeting 100% of their legal obligations.  qc, hon dl (buckingham). 1 see, for example, bremer vulkan schiffbau und maschinenfabrik v south india shipping corporation [1980] 1 all er 420 (lord denning mr). comment 156 one form of adr, however, has a long and honourable pedigree – arbitration. parties have always sought the intervention of a neutral figure who will hear both sides of the dispute and make a ruling as to who is right. one might cite the biblical case which has given us the phrase ‘the judgment of solomon’. arbitration between commercial firms became formalised in the nineteenth century and was joined in the twentieth by arbitration in disputes within the building and construction industry. in certain areas of commercial activity, such as shipping, arbitration became and remains the norm for dispute resolution. at first blush this might seem strange, particularly in england, where there has been a highly developed common law of obligations, especially contractual obligations, bolstered by acts of parliament. english and welsh judges have always enjoyed a high reputation for impartiality and integrity and the system of appointing as judges only those who have proved themselves in the practice of litigation means that judges have the weight of experience as well as professional competence. england has had an admiralty court for centuries, albeit mainly concerned with mishaps to vessels (collisions, foundering, scuttling and so forth) and the reorganisation of the court system by the judicature acts 1873-1875 led to the new queen’s bench division creating its own offshoot, the commercial court, with judges chosen from those whose practice at the bar had lain in that field. english law has also always been the most popular system of law for international contracts. where the parties are able to choose the legal system governing their contract, they will choose a system which provides two key elements. the first is a developed body of law governing the type of commercial transaction involved. this was particularly the case with england and international trade. britain was primarily a trading nation. the supremacy of the british merchant marine from the 17th century onwards, backed up, as it was, by the world’s premier navy, pushed british commerce to the four corners of the globe and, as a by-product, gave birth to an empire than encompassed about a quarter of the planet’s land surface. it also helped that britain had pioneered the industrial revolution. it was thus a commercial imperative for the courts to develop a workable corpus of contractual law, geared to international traffic, and to create the contractual and financial forms needed, such as charterparties, bills of lading, letters of credit and the like. with international shipping came the growth of insurance, in particular lloyds of london, and the bulk of the world’s insurance was placed in london. naturally london insurers would write their policies under english law and expect the contracts they were covering to be subject to english law as well. the denning law journal 157 the one fed off the other. the explosion of international trade following the end of the napoleonic war in 1815 required legal institutions and contractual forms to regulate it and the development of those institutions and forms encouraged the expansion of business abroad. if both sides of a transaction know that their rights and obligations are subject to a settled system of law, they are more likely to embark on the venture and, incidentally, more likely to find bankers to finance them and insurers to cover them when they do. thus english law met the needs of international traders. this factor remained potent in contractual choice of law clauses and became commonplace even when neither party to the contract was british and the contract had no connection with the uk. thus a greek shipowner chartering a vessel to a venezuelan oil company would tend to make the charterparty subject to english law and jurisdiction even though the vessel itself might never sight british shores. this remains true today and it is thought that half or more of international contracts are still made subject to english law and jurisdiction clauses. the second element was trust. the english judiciary was famously upright and independent. this meant that judges would not accept bribes but try cases on their merits. being independent meant that judges were not (and, importantly, were seen not to be) functionaries of the state. at a time when states were wishing to control trade for economic or fiscal reasons, an independent judiciary was a considerable asset. thus the background to the question is that, certainly by 1900 and probably much earlier, english law was the dominant law in matters of international trade and it has remained so to this day. with english law came english jurisdiction where the contractually agreed forum for resolving contractual disputes would be england usually london. 2 reasons for the growth of commercial arbitation all this explains the popularity of english law and the english commercial court but one has to go further and ask why it should also lead to the growth of arbitration. in an era (sadly long since passed) when court fees were modest, litigation was, from the standpoint of logistics, a very cheap exercise. after all, the state paid the judges and provided the court buildings and staff. with arbitration on the other hand, the parties had to pay the arbitrator or arbitrators and to provide all the logistics out of their own pockets. on the face of it, therefore, arbitration was the more costly option. so why choose it? the three advantages of arbitration were (and still are) speed, expertise and privacy. as regards speed, in the fast-moving world of comment 158 commerce, there was no time to go through the stately minuet of court proceedings. a hungry man would prefer a third-rate burger delivered instantly to a michelin-starred meal in 24 hours’ time. this was true in the late 19th century when the courts were less clogged and the procedure under the original rules of the supreme court relatively straightforward. today, when the courts are even more clogged (though, it must be said, not with commercial companies trying to get their disputes resolved) and we have the cpr, the old rubric about ‘the law’s delays’ is even more to the point. it is not as if the judges were not trying to make things better but, as is so often the case, well-meaning attempts to streamline procedures simply make them more complicated and time-consuming. the cpr has spawned a sub-set of rules, the admiralty and commercial court guide, which is highly prescriptive and technical. the individual rules themselves may well be sensible but, in aggregate, they add layers of complication to what ought to be a relatively simple process. furthermore, once a highly prescriptive set of rules is established setting out the precise steps that litigants must follow with, naturally, fixed and often unrealistic deadlines, then the door is opened to what is sometimes called ‘satellite litigation’ in which the parties battle endlessly about points of procedure rather than getting down to trying the action on its merits. this patently works to the benefit of the party who has a weak case and can use procedural wrangles to delay the dreaded day when it has actually to pay its debts or, better still, drives the other party into such a state of despair and frustration that it is prepared to settle out of court. indeed the real jackpot comes when the party likely to be found at fault, were the matter to come to trial, succeeds in getting the other party’s case struck out for failing to meet some arbitrary deadline. most of this can be avoided by resorting to arbitration, which is why so many domestic and international contracts specify dispute resolution by arbitration, frequently to exclusion of the courts. in commercial matters this has always been encouraged both by parliament and by the courts. the principal current statute is the arbitration act 1996 (the 1996 act) which is a very well-drafted piece of legislation. both the 1996 act (section 9) and the cpr provide for a party to litigation to apply to the court for a stay of court proceedings on the ground that there is a valid arbitration agreement in force in relation to the dispute. section 9(4) provides that ‘on an application under this section the court shall grant a stay unless satisfied that the arbitration agreement is null and void, inoperative, or incapable of being performed.’ an arbitration agreement, therefore, cannot be circumvented by issuing a claim in the courts. the absence of the cpr does not mean, of course, that there are no rules of procedure in arbitrations. the parties can, either by the arbitration the denning law journal 159 agreement itself or by subsequent agreement, adopt some or all of the cpr or the commercial court guide but more often they adopt one of the various arbitral codes such as those of the london court of arbitration, the international chamber of commerce or the london maritime arbitrators association. these tend to have the merit of being less prescriptive and more flexible and discourage satellite litigation. the one area where arbitration falls behind litigation is that, being a consensual process, the awards of the arbitrators are not per se enforceable: the successful party has to go to the courts to give the award teeth and actually to extract the money from the losing party. the courts are happy to back this up and will normally rubber stamp the award and put in motion the court enforcement procedures. only if the losing party has a valid challenge to the award will enforcement not be automatic. from the outset the courts (and parliament) were astute to avoid the situation whereby an arbitration was simply a preliminary skirmish on the road to litigation leaving the whole dispute to be re-tried by a court if one party disliked the arbitral award. the grounds on which an award can be challenged are very limited. the 1996 act gives a party the right to challenge an arbitral decision on the ground that the arbitral tribunal had no jurisdiction (section 67), on the ground that there has been a serious irregularity in one of nine listed categories (section 68) or (though in very limited terms) on the ground that there has been an error of law (section 69). otherwise the award of the arbitrators is final and unchallengeable. all these factors mean that an arbitration has the potential to produce a much speedier result than litigation and this has led to the increased popularity of arbitration in all fields (not just commercial transactions and construction) over the twenty years since the appearance of the cpr. the second major factor is that of expertise. judges are (or should be) experts in the law and may have wide experience in contractual disputes in the relevant field both when in practice and on the bench. only rarely, however, do they possess training and experience in what might be called the technical aspects of that field. this is not, of course, confined to judges sitting in commercial or construction cases. many cases in all areas of the law require judgments to be made of technical matters which are outside the qualifications of any judge. this problem is usually solved by the employment of expert witnesses who present their findings and opinions to the court and the judge then decides which to accept. in an arbitration, however, it is not compulsory to engage lawyers as arbitrators and in a panel of, say, three arbitrators it is relatively common for the parties to select one or more arbitrators who are not lawyers but experts in the relevant field. many of those engaged as arbitrators in shipping matters have gained their experience as seafarers or ship-brokers comment 160 or the like and it is not unusual for building arbitrations to be undertaken before arbitrators who are surveyors or engineers by profession. this does not obviate the need for expert evidence but, in commercial matters, much may turn on trade practice or usages which might be alien to a commercial judge but are immediately grasped by arbitrators who have spent a lifetime in the trade. this is true of other technical areas of law as discussed in the next section on it disputes. perhaps the strongest card in the hand of arbitration is the fact that the arbitrators are chosen by the parties, unless they fail to reach agreement when the appointment can be made under some contractually agreed nomination scheme (e.g. the president of some professional body such as the law society or the royal institute of chartered surveyors). in the final resort sections 15-27 of the 1996 act provide a series of mechanisms for the appointment and removal of arbitrators by the court, if necessary. many arbitration agreements provide for each side to nominate an arbitrator with a third arbitrator or umpire being selected either by the parties jointly or by the two nominated arbitrators. technically the difference between the two is that a third arbitrator has the same powers and obligations as the other two (s/he may, but does not have to, act as presider or chairman) whereas an umpire is there largely to step in if the other arbitrators cannot agree but otherwise does not take part in the decision making. the ability to choose is a strong selling point. to be brutal, the quality of her majesty’s judges is, how shall one put it, variable and litigants have no say in who is appointed to try their cases. in the recent past, some disastrously bad appointments to the bench of the technology and construction court in london drove some litigants out into the provinces but many others into seeking arbitration. this is not to say that arbitrators do not get things wrong but at least they are the parties’ choice of arbitrators and not foisted on them by the court listing office. the third attraction of arbitration is privacy. court proceedings are, with very few exceptions, held in public and open to the media. not all parties in dispute are keen for their dirty linen to be washed in public and the issues in the arbitration might well involve highly confidential information which both sides would want to keep from competitors. arbitrations are able to ensure this degree of confidentiality. for obvious reasons, government departments are quite enthusiastic about arbitrations as a means of circumventing media attention when public contracts go awry. consequently, although arbitration does carry extra expense – the arbitrators’ fees, hiring premises for the hearing etc – the advantages discussed above can lead to cost savings over litigation, even if only the denning law journal 161 because the preliminary and interlocutory elements can be kept to a minimum. many arbitrations are entirely case-managed online and the parties and the arbitrators only come face to face at the actual hearing. thus, while the expense of witnesses, experts, documentation and so forth will be similar as between arbitration and litigation, the costs savings at the procedural stages may go a long way to offsetting the additional costs of fees and premises. 3 arbitration and it disputes in recent years there has been a move towards referring information technology (it) disputes to arbitration. these involve contractual disputes between employers and contractors arising out of contracts to create and install computer systems into businesses and into national and local government. many of these disputes have involved very large and complex systems and the claims have amounted to many millions of pounds (and occasionally over a billion). there is thus an incentive for the parties to get it right first time rather than go through the entire gamut of litigation with possible satellite litigation and subsequent appeals up the line. computer litigation is, necessarily, a recent innovation. much of it stems from st albans city and district council v international computers ltd. 2 the case arose from a contract between the council and icl whereby icl was to create and install a computer system to handle the council’s community charge (poll tax). in carrying out the logistics necessary to process the poll tax it was vital to compile a list of all those living in the district who were liable to pay the tax and to assess who paid the full tax, who paid the reduced tax and who were exempt. on those figures would be calculated, inter alia, the amount of funding the council would receive from central government. owing to what was (after a vast amount of hassle) eventually admitted to be a glitch in the software, the totals were out by roughly 3% which although not large enough for the error to be spotted by the council was large enough to involve the council in losses of well over £1 million – a significant amount of money at that time for a small council. at first instance, icl had mainly relied on a contractual clause limiting liability to the lesser of £100,000 or the cost of the software. this failed as being an unreasonable clause and therefore void under section 3 of the unfair contract terms act 1977 (ucta), largely because icl had 2 [1996] ewca civ 1296; [1996] 4 all er 481. comment 162 had to admit that it carried insurance well in excess of any possible liability to the council and the availability of insurance is a key factor in assessing reasonableness of an exclusion clause (ucta section 11). the key argument for the council was that contracts for the supply of computer systems were subject either to the implied terms of fitness for purpose and satisfactory quality imposed by (what was then) the sale of goods act 1979 section 14 or to identical terms implied at common law. this was not heavily contested at first instance but in the court of appeal icl put forward the argument that computer science was so new and so advanced that any contract was in the nature of a joint development between customer and supplier in a rapidly changing field where both parties accepted the risk that the software might not work. accordingly one could not imply any term as to quality or fitness, at least until the system was delivered in its final form (even if it was being used in the interim). this argument was roundly rejected. nourse lj said: “the basic submission of [counsel for icl] as to the construction of the contract, advanced for the first time in this court, was that the defendant agreed to supply a system which was to be fully operative by the end of february 1990, when the amount of the community charge would have to be set. it was a system, as the contractual provisions recognised, which until then would still be in course of development. thus, except where the defendant had acted negligently, the plaintiffs had impliedly agreed to accept the software supplied, bugs and all. … specifically, he submitted that the defendant was not contractually bound to provide software which would enable the correct figure to be extracted from the computer on 4 december 1989. these submissions must be rejected. parties who respectively agree to supply and acquire a system recognising that it is still in the course of development cannot be taken, merely by virtue of that recognition, to intend that the supplier shall be at liberty to supply software which cannot perform the function expected of it at the stage of the development at which it is supplied.”3 in a powerful judgment agreeing with the rest of the court, sir iain glidewell4 analysed the question whether software was ‘goods’ for the 3 ibid 487. 4 ibid 492. the denning law journal 163 purposes of the sale of goods act or the supply of goods and services act 1982 and he came to the conclusion that it was, at least when the software was supplied on a physical medium (such as a disc). this judgment that has stood the test of time, being affirmed on this issue, by the court of appeal as recently as computer associates uk ltd v software incubator ltd.5 sir iain held that the statutory implied terms as to reasonable fitness and satisfactory quality did apply to the contract but, as a backup, would be implied by the common law by analogy. for consumer contracts, this problem has been resolved by the consumer rights act 2015 which distinguishes between goods and ‘digital content’ but affords the same measure of statutory protection to the consumer’s rights in each case. what the st albans case also established is that substantial damages can be awarded where the failure of the software system had led to financial loss, even consequential loss. in horace holman group ltd v sherwood international group ltd,6 for example, the claimant recovered the cost of the wasted time of directors and staff in trying to sort out the problems caused by the negligent software and the losses sustained by reason of the fact that the failure to deliver a workable system prevented the clamant from making substantial cost savings through staff reductions. by the millennium, therefore, computer litigation was an established genre of action. as time progressed and computer systems became larger and more sophisticated, the possibilities for things to go wrong multiplied. computer litigation thus became much more convoluted and the weaknesses of the court system more marked. it disputes were (and are) assigned to the technology and construction courts (tcc) in london and the few court centres with this jurisdiction. initially, few, if any, of the judges of those courts had any experience of computer litigation whether from their former practices as advocates or from sitting as judges. most, indeed, had been specialists in building and construction cases and while there are similarities between the two types of action (for example assessing responsibility for delays in performance and their associated costs), the differences are also very marked. most computer contracts require the creation of new software to meet the client’s business needs and even when proprietary software is incorporated (such as microsoft office), it will have to be customised to those needs. building, on the other hand, usually involves the employment of established techniques 5 [2018] ewca civ 518; [2018] 2 all er (comm) 398. 6 [2001] all er (d) 3. comment 164 and materials and there is little element of modular or user acceptance testing. in addition, it must be said that before the reform of the tcc which brought high court judges into the court for the first time, judicial standards were not high. there were ‘rogue’ judges whose conduct appalled even the court of appeal – see, for example co-operative group (cws) ltd v international computers ltd.7 even when the judges were up to the task (h. h. judge bowsher qc was a highly competent judge of it disputes) the procedural niceties of the cpr tended to get in the way. a complex computer dispute requires a horrendous amount of case management and a system whereby case management involves an inter-partes hearing in open court, preceded by formal skeleton arguments and the like, is both cumbersome and very expensive. then there was the question of privacy. very few businesses like it to be known that their new computer system has proved a failure and the giants of the computer industry are equally not keen on their inadequacies being exposed to public gaze. with government departments, the desire for privacy is particularly acute: after all, they are spending the taxpayer’s money and the press will be only too happy to denounce waste and mismanagement. in camera is better than the cameras of the paparazzi. consequently the trend has been to refer it disputes to arbitration. this enables a much greater flexibility, particularly in the preparation and presentation of material. although some courts are, so to speak, ‘wiredup’, there is a shortage of technologically advanced courtrooms, whereas arbitration centres can provide a wide range of electronic and other facilities (some even have simultaneous translation booths, obviating the need for an interpreter standing next to the witness in the witness box). it disputes normally (and counter-intuitively) tend to generate huge quantities of paperwork. this is particularly the case if the client is a large corporation or, even more, a government department. decisions will have been endlessly discussed at meetings or by correspondence and there will be reams of material logging everything that went (or appeared to go) wrong with the system. electronics are also useful in demonstrating to an arbitral tribunal what the software was intended to achieve and the extent to which it met or did not meet the contractual specification. what modern technology is particularly helpful for is in reducing the amount of physical paper needed for the arbitral tribunal, the lawyers and the witnesses. the existence of the cloud means that, literally, millions of paper pages can be stored in the ether and summoned on-screen by simply 7 [2003] ewca civ 1955. the denning law journal 165 typing in a reference. the use of hyperlinks is vital, especially with witness statements. in the ‘old days’ and still today in many court trials, there is a paper witness statement in which the witness says ‘i now refer to my letter of 6 june 2017 [bundle 46/tab 8/1056] which answers the criticisms made by mr smith in his email of 4 june [bundle 43/tab 27/804]’ etc, necessitating anyone reading the statement having numerous lever-arch files open on their desk or, worse, in the witness box (a limited space in most courts). on the cloud the statement reads ‘i now refer to my letter of 6 june 2017 [g7/16.32] which answers the criticisms made by mr smith in his email of 4 june [g6/5/54]’ and clicking on the linked references will call up all the documents on screen (or better still two or more screens) and much time and effort is saved not having to fiddle with unwieldy lever-arch files. time is a product of complexity and it disputes are usually of a complexity that necessitates a lengthy hearing. although court management has improved hugely in recent years, courts are still unwilling to sit in the (often long) legal vacations. some courts (even the tcc) are reluctant to hold trials on fridays (reserving fridays for interlocutory applications in other matters). because arbitration is a consensual process, the parties agree the sitting days in advance and have to keep to them. this leads to careful time-management. it is not uncommon for arbitrations to operate on the ‘chess-clock’ principle. the parties agree to split the time available into so many hours for one side and so many for the other (usually 50/50 but not always if there is a disparity in the number of witnesses per side) and each party can decide how best to use the time allotted to it. it disputes almost always involve expert witnesses, often of several disciplines: software experts, hardware experts, experts in the business processes of the client and forensic accountants to quantify the losses claimed. both courts and arbitrators tend to be ruthless with experts, insisting that they hold meetings and do their best to narrow the issues and agree as much as can be agreed. arbitrations can also be much firmer with imposing deadlines and limiting the time taken by experts at the hearing itself. when contemplating computer and other it disputes, therefore, the lawyer is not simply concerned with the law of contract or with the understanding of complicated technology. in most cases, the legal principles are the usual contractual principles and the usual questions are asked: what was the contract and what were its terms; was the contract varied and, if so, to what effect; what was the contractual specification for the system and has the supplier met that specification; was the system delivered on time and, if not, whose fault was it and how does that impact comment 166 on price or damages; is the supplier entitled to money for extras or is the customer entitled to damages for non-performance? 4 conclusion in it cases, the lawyer is concerned with the mechanics of the case in order to maximise the chances of a fair outcome while minimising as far as possible the time and money expended in reaching that outcome. experience has shown that in commercial disputes and disputes involving areas of technical expertise, such as construction and it, the greater flexibility of the arbitral process and the fact that it is a collaborative effort between the parties and the arbitrators gives arbitration the edge over court litigation. obviously for the majority of ordinary civil cases, court litigation will be the only viable or affordable option and, at the end of the day, the existence of courts to provide the enforcement backup is essential to the survival of arbitrations themselves. for this relatively small corpus of disputes, however, arbitration is usually the most sensible solution. for the purposes of right to self-determination, how does one define people in context of kashmir 325 the denning law journal 2014 vol 26 pp 325-332 book review power of persuasion: essays of a very public lawyer sir louis blom-cooper, (hart publishing 2015) isbn 978-1-84946-816-9 his honour richard bray  sir louis blom-cooper has had a distinguished career as qc, chairman of inquiries, advocate of human rights and campaigning author. this book is a collection of essays on topical and controversial issues. as one would expect of the author, he constantly expresses individual views and challenges orthodox opinion. the essays cover such diverse subjects as judicial review, human rights, the need for a new homicide act, trial by jury, criminal sentencing and penal policy, media freedom and regulation of the press and include a number of diverting tales from his life at the bar and pen-portraits of leading judges. it is only possible within the scope of this review to comment on some of the essays. chapters 1 and 2 are essays on the subject of judicial review and the debate between proponents of judicial restraint and activism. sir louis takes as his starting point the fa mann lecture of lord sumption in 2011. in it he discussed the issue of the separation of powers and posed the question “how far can judicial review go before it trespasses on the proper function of government and the legislature in a democracy?” lord sumption argued that the courts have gone outside the legitimate region of reviewing the application of governmental policy to individuals and have embarked on a review of policy itself. this lecture, delivered soon after his appointment direct from the bar to the supreme court, caused a number of judicial eyebrows to rise. in a hostile critique of the lecture 1 , sir stephen sedley, former lord justice of appeal, argued that a true analysis of the cases quoted by lord sumption showed that the judges were not in fact trespassing on the policy making functions of government but merely seeking to give effect to the principle expressed by lord hoffmann in the alconbury case that what is in the public interest is for the legislature and ministers to judge, but that when ministers or officials  his hon judge richard bray, northampton crown court. 1 stephen sedley „judicial politics‟ [2012] 34 london review of books no 4 15. book review 326 make decisions affecting the rights of individuals they must do so in accordance with the law. he ended with an implied rebuke that lord sumption‟s central allegation of repeated judicial intrusion might itself be seen as a political intrusion into the business of adjudication by judges. sir stephen, while a judge, was well known as an expert in judicial review and a supporter of the human rights act 2 . i remember attending a judicial seminar soon after the introduction of the act. the course included a number of exercises relating to bail applications. i ventured the view that such applications could be perfectly well managed under the present provisions of the bail act and the common law, without reference to the human rights act. sir stephen rather sharply responded by saying that the whole process of granting bail would be transformed by the human rights act. i am happy to say that in the years following the act bail applications were dealt with exactly as before! in these essays sir louis suggests that the argument for judicial restraint, supported by lord sumption, may rest upon a misinterpretation of the concept of the separation of powers. it should more properly be described as the distribution of powers. the legislature, the executive and the judiciary are separate institutions but their powers are shared and not discrete. thus the courts do not merely step in to strike down executive acts or decisions which are outside their powers given them by statute, but also take part in the law making process. when a statute is ambiguous or obscure the court will seek to interpret the statute. any statute must by definition be ambulatory and require replenishment over time. here the courts are recognisably secondary legislators. they may also step in where the legislature has failed to pass laws that are needed. such actions by the courts are not a trespass upon the functions of government but an expression of the court‟s duty towards “peace, order and good government” as expressed by lord mansfield back in 1762 3 . sir louis also refers to the introduction of the human rights act as giving the judges express encouragement to activism. after 2000 the courts were empowered to declare any acts or decisions of ministers or civil servants as incompatible with articles of the human rights convention, and thus invite parliament to reform the legislation. this compromise with the legislators, affirmed the apportionment of powers, not their separation. sir louis has a distinguished record as a campaigner for the abolition of the death penalty and subsequently for reforming the laws of homicide. it has long been accepted that the homicide act 1957 which introduced 2 1998 brought into force october 2 nd 2000. 3 r v barker (1762) 96 er 196 1 wm bl 352. the denning law journal 327 the defence of “diminished responsibility” was an illogical and messy attempt at compromise. since then attempts to reform the law have been obstructed by successive governments frightened by possible public backlash. in chapter 7 sir louis prints the text of a submission made by himself and professor morris to the law commission in which they advocate a single homicide offence 4 . the law commission had supported a two-tier approach, the first tier being limited to the more serious offence of deliberate homicide. sir louis points out that this is an arbitrary distinction. why should intention rather than any other factor or factors be determinant of the seriousness of the offence? applying the principles of occam‟s razor, he argues that it would be simpler to have one single and comprehensive offence of homicide. this would be capable of including the present offences of causing death by dangerous driving and causing death in breach of the health and safety act. the creation of a single offence would of course involve the abolition of the mandatory penalty for murder, long sought by jurists and campaigners. the sentencing tribunal could look at all the surrounding circumstances to judge the seriousness of the offence and any mitigating features before passing sentence. one of the difficulties with this proposal, recognised by sir louis lies in defining the requisite mens rea for the allembracing single offence. sir louis suggests that it must be proved that the accused “demonstrated a serious failure to achieve the standard of care objectively to be expected of a reasonable person”. thus, as he admits, proof of guilt in criminal homicide would approach the norm of strict liability. as a judge i would not look forward to explaining that definition to a jury! in chapter 9 sir louis turns his attention to trial by jury. it is clear that he is not an admirer of the jury system. he admits that he came to it late after long practice in the civil courts. he points out that magna carta, traditionally regarded as the foundation of english liberties, did not establish a right to trial by jury (rather, the essence of magna carta being “one baron, one vote”). he begins by dismissing as hyperbole and exaggeration many of the classic defences of the jury system by such authoritative figures as lord devlin: “it is the lamp that shows that freedom lives” and baroness kennedy: 4 law commission, a new homicide act for england and wales (law com no 177); the argument of sir louis blom-cooper and professor terence morris. book review 328 “the jury tradition is not only about the right of the citizen to elect trial but also about the juror‟s duty of citizenship. it gives people an important role as jurors, as stakeholders in the criminal justice system” it has to be said that sir louis is himself by no means averse to tendentious language when he describes the jury as: “the high point, the apotheosis of amateurism. as such it is potentially a recipe for incompetence and unbridled bias” or “the verdict of the jury is an oracular utterance, devoid of any overt ratiocination” sir louis is right to say that in discussing the system, the important question is whether trial by jury provides as good or better quality of justice than other modes, and not whether it can be justified on social and constitutional grounds. he makes a number of valid points. firstly that there is no constitutional or any general form of right to trial by judge and jury, only a general obligation to submit to it in indictable cases. the defendant when charged in such cases has no choice but to submit to trial by jury. secondly, the jury does not give a reasoned verdict. such a verdict, in the civil courts, would fall foul of article 6 echr. in taxquel v belgium 5 the grand chamber, although it declined to favour any established mode of trial, declared that the system must produce a “reasoned verdict”. thirdly, the method by which juries reach their verdicts cannot be tested or reviewed because research into their secretive workings is forbidden. sir louis suggests that many of the judges today conducting such trials express doubts about the operation of the jury system (at least in private). as a former circuit judge with nearly 30 years‟ experience of sitting in the crown court i have to take issue with sir louis on this point. there is no evidence or study which suggests that verdicts of juries are intrinsically less reliable than those of any other tribunal. he himself quotes the study of the runciman commission in 1993 which revealed that judges and prosecuting counsel thought that jury convictions ran contrary to law or evidence in only 2% of cases. 5 (2012) 54 ehrr 26. the denning law journal 329 ultimately sir louis falls back upon the old and patronising argument that the professional lawyer is imbued with a sense of “judiciality” by reason of legal training and education, whereas the juror lacks such a skill and cannot be expected to properly test the credibility and reliability of witnesses and other evidence. i would argue that jurors, with their diversity of background and experience are perfectly able to make common sense judgments on the reliability of evidence and certainly as capable as judges. elsewhere in these essays 6 sir louis refers to some “immensely clever judges and barristers” who when assessing evidence “exhibit the attributes of a man who has his feet firmly planted in midair”. most of the so-called miscarriages of justice in jury trials in recent years have been cases where the jury have been prevented from seeing or hearing evidence, for example by non-disclosure by the police or prosecution or through intervention by the judge. more recently there has been a tendency to allow the jury to see and assess for themselves more of the surrounding evidence (for example hearsay evidence and previous convictions) 7 . the cases show no indication that juries have been unable to make balanced judgments as to the relevance and reliability of such evidence. i agree with sir louis that there is a strong argument for creating some exceptions to the general principle of jury trial for indictable offences. serious fraud is such an example. in this field the jury‟s experience is likely to be very limited. there is need for professional expertise and understanding of complicated financial transactions. my experience of trial by jury in such cases has not been positive. an enormous amount of unnecessary paperwork is generated by the photocopier and by the fact that lawyers tend to get paid according to the number of pages in the court bundle. once the trial has started it may needlessly be prolonged by the sitting of so-called maxwell hours (halfday sittings first instituted by lord phillips in the maxwell case) and by clouds of forensic dust raised by defence counsel. as the trial drags out jurors lose interest and absence through “sickness” becomes more frequent. sir louis makes a cautious recommendation that the defendant in such cases should be entitled to elect to waive the right to jury trial. in practice very few defendants (after advice from their lawyers) would make this choice unless they intended to plead guilty. a better course would be for the judge to decide the mode of trial having heard representations from prosecution and defence. 6 ch 8 criminal justice on trial 209. 7 see the criminal justice act 2003. book review 330 in chapter 13 crime and justice: a shift in perspective, the author takes a radical look at the issue of the criminal justice system and crime control. he asks the question whether a criminal trial is a necessary forum to deal with the wide variety of criminal activity. he points out that criminal justice today is time-consuming, that the outcome is problematic and penal sanctions are costly and cumbersome. he deplores the politicians‟ rhetoric of law and order and its judicial reflection in the recent statement of the lord chief justice 8 that sentences passed by the criminal courts were obliged to focus on the reduction of crime. in the author‟s view the criminal courts should focus exclusively on ensuring a fair trial and abandon any notion that they are involved in society‟s grappling with problems of criminality. the implication of this argument is that sentencing can be appropriately dealt with by some other tribunal or public body specifically concerned with crime control and public policy. i have some sympathy with sir louis‟ view. what should be the basis of sentencing by a judge? when sentencing should he apply social or philosophical principles, or should he rely upon his discretion and experience in the courts, or should he be required to sentence in accordance with strict written guidelines? over the years i have attended numerous judicial seminars on sentencing. i have never heard the classic issues of penology such as deterrence, retribution and rehabilitation specifically being discussed. until recently, sentencing was always regarded as a matter for the discretion and experience of the judge subject to any relevant legislation and review by the court of appeal. the decisions of the court of appeal were notoriously idiosyncratic, depending upon the composition of the court. it would often be said by a judge, not entirely in jest, that though his sentence had been upheld by the court of appeal he still felt it to be right! although in principle a sentence can only be reduced by the court of appeal on one of three grounds – that it was wrong in law, wrong in principle or manifestly excessive, in practice these principles are not adhered to and very frequently not even quoted in the judgment of the court. i have conducted a study of a large number of recent appeals against sentence. i found that the most common ground given for interfering with the judge‟s sentence was that it was “somewhat too long”. this is of course a long way from the “manifestly excessive” test and no ground upon which the court of appeal can validly interfere with sentence. recently a new player has entered the field: the sentencing guidelines council. this is made up of both lawyers and lay members. 8 r v monteiro [2014] ewca 747. the denning law journal 331 they have issued so-called sentencing guidelines for the majority of offences. these in practice form a sort of grid whereby the judge can pass his finger down the grid and select his sentence. in justification of this process it is claimed that it brings consistency to sentencing. such a guide to sentencing may be of some help, for example to the commercial judge sitting in the crown court or court of appeal for the first time, but it can surely be no replacement for the discretion and experience of the judge obtained through many years of sitting in the crown court. in a number of chapters sir louis includes lively anecdotes of his life at the bar, famous cases such as rondel v worsley 9 and the trial of james hanratty and pen-portraits of famous judges. chapter 33 is devoted to lord denning. to those of us who cut our teeth in the law in the „70s and early „80s lord denning was a giant who made long-lasting contributions to the development of the law in promissory and proprietary estoppel and in many other fields. sir louis‟ description of him is as a “judicial misfit” is therefore disappointing. he views him as judge who allowed his own private views on the merits of a claim to override legal rules and principle. this seems to be based least in part upon a number of cases in which he appeared unsuccessfully in front of him including the rather hum-drum case of lake v essex county council 10 which he quotes in extenso, and upon the doubtless jocular remarks made by lord denning to the author at lunch in middle temple hall after the case. most barristers of my generation will have reminiscences of lord denning. my favourite does not relate to an incident in court but to a cricket match in which i played for the bar against a village team on the ground next to lord denning‟s home in hampshire. he invited us all in for lunch and insisted on being introduced to my wife and each of my young children. on another occasion, when i had injured my finger taking a catch, he wrote a personal letter of sympathy. the book ends with a delightful chapter on academics and practitioners. sir louis traces the development of the links between academics and those practising in the courts from the time in his early days when it was only possible to cite a textbook as legal authority if the author was deceased, to the present day where academic lawyers such as lord goff, lord justice beatson, lady hales and lord sumption have been appointed to the high court bench. the development of modern law is now an interplay between legal commentary and law in action. in his conclusion sir louis paints a picture of the continuing pilgrimage of the 9 [1967] 1 qb 443. 10 [1979] irlr 241. book review 332 two professions together developing a legal system in a modern liberal democracy. this chapter ends a book which is a stimulating and thoughtprovoking read for practitioners and academics alike. human rights in an unwritten constitution the rt. ron. lord searman* in this paper i shall endeavour to answer two questions. can we use our constitution to establish legal safeguards which will protect our basic rights and liberties against an irresponsible or negligent or tyrannical legislature? by "legal safeguards" i mean the protection of the law as distinct from the protection provided by political and social pressures upon parliament. if we can establish an acceptable degree of legal protection, is it really needed? the first is a constitutional question: the second goes to the merits, or the heart of the matter. the second question could be put more tendentiously in these terms: is the protection of human rights available now in the united kingdom be it legal, political, social or a mix of the three, a sufficient safeguard for rights which we call "human" because we believe them to be so basic that they should be, in the great jeffersonian phrase, "unalienable"? 1 the constitutional question a determined effort was made in the parliamentary sessions 1985/86 and 1986/87 to pass a bill to incorporate into british law the human rights and fundamental freedoms protected by the european convention for the protection of human rights and fundamental freedoms.2 had such a bill become an act of parliament, anybody within the united kingdom could have taken action in a british court to obtain relief and compensation in respect of an infringement of the convention by the crown or any other public authority. the bill would, on the face of it, have greatly strengthened the citizen's legal protection against the state or other public authority. he would have had a remedy in a national court against the state or other public authority in the event of an infringement, or a threat of infringement, of any of seventeen basic rights and freedoms which the united kingdom government by signing and ratifying the convention and its 1st protocol has guaranteed will be secured to everyone within the kingdom without discrimination on any ground whatsoever. • an amended version of the eileen iiityd david lecture delivered at the university college of swansea on 6th march 1986. 1. u.s. declaration of independence, philadelphia, 4 july 1776. 2. lord broxboume's bill, infra n 6. 129 the denning law journal the convention is an international treaty which was drafted by the council of europe in the years immediately following the war when memories of nazi oppression and inhumanity were fresh. it was seen by the member states of the council of europe as the minimum necessary to avoid a second holocaust. the united kingdom was a member state and signed the convention on the 4th november 1950. we later ratified it and it came into force in september 1953. it is a treaty binding on the united kingdom in international law. the united kingdom has accepted3 the compulsory jurisdiction of the european court of human rights which with the european commission of human rights constitutes the legal machinery for the interpretation, application, and enforcement of the convention. these two institutions have their seat at strasbourg, which is also the headquarters of the committee of ministers which is the governing body of the council of europe. the united kingdom has also recognised the competence of the commission to receive petitions from any person claiming to be the victim of an infringement by the united kingdom of a right contained in the convention. fourteen human rights and fundamental freedoms are protected by the convention itself; they are the right to life, freedom from inhuman or degrading punishment, freedom from forced labour, personal liberty, right to a fair and public trial, freedom from retrospective penalties, right to privacy, freedom of thought and religion, freedom of speech, right of peaceful assembly, freedom of association and to join trade unions, right to marry, and the enjoyment of these rights and freedoms without discrimination. the first protocol to the convention, also ratified by the united kingdom, has added a further three: the peaceful enjoyment of one's possessions, the right to education, and the freedom of elections. the convention contains important provisions enabling member states to limit some of the freedoms secured by the convention in the public interest in certain stricdy defined circumstances and contains a power of derogation or suspension in time of emergency. the convention imposes the obligation upon signatory states to secure these rights and freedoms to everyone within their jurisdiction but does not, as a matter of positive obligation, require a contracting state to incorporate the convention into its own domestic law. in fact all the states which have signed it they include every member of the european communities have done so in one way or another, save only the united kingdom. we have justified our decision not to do so upon the assumption that our law, as it stands, constitutes a full compliance with the convention. we may have thought so in 1953; but can we really believe it today? the court of human rights while recognising that there is no direct obligation upon contracting states to incorporate the convention into the domestic law has said 4 that by doing so a state does ensure that the intention of the 3. 1965 initially: subsequently reviewed. 4. ire/and v. u.k. series a, no.25, 2 e.h.p.r. 25 (1976) para. 239. 130 human rights in an unwritten constitution convention is "faithfully reflected" in its laws: careful words, perhaps, but the meaning is clear. to the question does british law faithfully reflect our duty under the convention? i shall give you an answer later. three attempts have been made to incorporate the convention into our law, each upon the initiative of a private member of the house of lords. the first two, by lord wade, failed: but he did secure the passage of a bill of rights through all its stages in the house of lords only to fail in the commons. he scored one significant victory. the house of lords set up a select committee on a bill of rights, which reported in may 1978.5 the committee were agreed in concluding that "if there is to be a bill of rights, it should be a bill based on the european convention." on the issue whether there should be a bill the committee was divided, six in favour and five against. they published a report, which is brief, clear, and, i suggest to anyone interested, compulsory reading. the third attempt came nearest to success.6 lord broxboume, a distinguished lawyer and in the past a conservative cabinet minister, introduced the bill in november 1985, and it passed all its stages in the lords in the course of the session. as a private members biii it then went to the commons, piloted by the conservative q,c., sir edward gardiner, but it failed to pass second reading early in 1987, and accordingly fell. if it had been enacted could it have been protected against repeal or modification by a later act of parliament? the risk arises as much from inadvertent or accidental repeal as from deliberate policy. the basis of the argument against incorporation is that under the british constitution the protection of our liberties is in the last resort political, not legal. the working principle of our constitution is the sovereignty of parliament.7 it is not, therefore, possible to provide any effective legal safeguard either against parliamentary mistake which results inadvertently in the repeal of a provision in the bill of rights, or against a parliament irresponsibly determined upon repeal in whole or in part of the bill of rights. for parliament exercises its sovereignty by its control oflegislation. the crown cannot legislate save with the advice and consent of parliament: and there is no limit upon what parliament can do by legislation. further, parliament is master of its own procedures: for instance, it cannot be compelled to treat certain acts of parliament, e.g. a bill of rights, as so fundamental that they cannot be repealed save by a specified majority or by referendum. and within parliament one chamber, the elected house of commons, is the dominant partner. the house of lords has become an advisory and delaying chamber only. its assent to legislation is no longer required if the commons persist against the dissent of the lords save for one vital exception. the exception is that the commons cannot prolong the life of a parliament beyond the period of five years without the assent of the house of lords. lord hailsham's 5. (176) h.l. 24 may 1978. 6. human rights and fundamental freedoms bill. 7. dicey, introduction 10 the study of the constitution 10th ed. (1959), p.145. 131 the denning law journal description8 of parliamentary sovereignty as an elective dictatorship is true save for that exception. the hereditary, non-elected, appointed, chamber is, therefore, the ultimate safeguard of our liberties if they should be threated by a tyrannically minded majority in the house of commons. is this why some wish to see the house of lords disappear, leaving us with single chamber government? the right of our people to a general election at stated intervals and the power of a newly elected parliament to repeal all or any of the legislation of its predecessors is a great protection against elective dictatorship; but it has one awkward consequence. it creates the impossibility of ensuring legal protection of our liberties against repeal or abrogation by parliament. the real world, however, is not so dangerous as legal theory might suggest. if a bill of rights should be enacted, the political restraints against its repeal would be formidable indeed. i quote the words of wisdom and experience from the select committee's report (para. 16): " ... if a bill of rights were enacted, whatever form it took, there would in practice be the strongest political restraint against any acknowledged attempt to overturn it in a future act. all the more would this be the case, if, as the committee have concluded that it should, such a bill took the form of an act giving domestic effect to the european convention. for in that event an acknowledged attempt to overturn the bill of rights would amount to an announcement that the government was proposing to put us in breach of our international obligations." i answer, therefore, the constitutional question thus. legal protection, i.e. the protection of our basic rights and liberties enforced through our courts, is worthwhile: though it can only be achieved by act of parliament which itself is liable to repeal, the political forces militating against repeal are strong enough to ensure an acceptable degree of enduring legal protection. history suggests that we have little to fear. our great constitutional enactments have survived the years notwithstanding they lack legal protection against repeal; magna carta 1215, the act of settlement and the bill of rights 1688/1689, and the habeas corpus acts. an enacted modern bill of rights based upon the convention could expect the same degree of political protection. who would dare to repeal a statute based on an international obligation to secure the right to a fair trial or to freedom of speech? the heart of the matter i now declare my own position. i am an advocate of a modern british bill of rights: i agree with the unanimous opinion of the house of lords select committee that if we are to have one it should be achieved by passing an act of parliament giving the convention the force of law within the united kingdom, 8. new charter page 7: pamphlet no. 430, conservative political centre. 132 human rights in an unwritten constitution and i supported lord broxbourne's bill. there is a very practical but also fundamental advantage provided by a bill of rights based on the convention. it would give the citizen aggrieved by an infringement of the convention immediate access to a national court where he can obtain either relief from, or a remedy for, the infringement. at present, if, and we now know it is not really "if' but where so i say where our domestic law offers no remedy or protection, a citizen who has suffered an infringement faces formidable difficulties in enforcing his right: first, he must seek a remedy in the united kingdom: secondly, and only when he can demonstrate that he has no remedy at home, he must go to strasbourg to petition the commission for human rights. if he establishes an admissible case the commission may bring his case before the european court of human rights. but he himself has no right to be heard by that court, though the commission usually arranges its representation before the court so as to include representatives of the complainant petitioner. 'justice delayed is justice denied" has been a principle of our law since magna carta. the existing arrangements for the enforcement in the united kingdom of the convention which i have outlined do amount to a denial of justice. they impose upon the aggrieved citizen difficulty, delay, and expense. and the delay is .such that by the time a favourable result is obtained it is often too late to be an effective remedy. take the case of mr golder. mr golder, while serving a sentence in a british prison, was refused permission to write to his solicitor to seek advice about defamation proceedings which he wished to bring against a prison officer. he was denied access to legal advice and to the courts. he petitioned the commission who upheld his complaint that his convention rights had been infringed and referred the case to the court of human rights who also upheld the complaint. by the time the court so ruled, mr golder had been out of prison for a long time. he had needed a remedy while he was in gaol: when it came, he no longer needed the remedy, for he was free and had been free for years. needless to say, a bill of rights, had it been in force, would have given mr golder immediate access to a british court for a remedy when he needed it, i.e. while he was in gaol. mr golder's case, however, does not provide a complete answer to the question: is a modern bill of rights necessary? it is possible to urge that prisoners are a very limited class too small to found a generalised criticism of our law. the traditionalists argue that the british combination of common law and statute law does in most cases effectually protect our basic rights and liberties without any need for incorporating into the law the convention's positive declaration of human rights. this argument was undoubtedly accepted, or its accuracy was at least assumed, by the british government when it ratified the convention. indeed, the government, had it taken the view that the convention went further than our domestic law, would have considered itself bound to get passed through parliament an act bringing our law into line with the convention before it ratified it. for this, in such circumstances, is accepted practice. 133 the denning law journal the record unfortunately indicates that the government's optimism was misplaced. statistics, i recognise, are never the whole truth: but they can be significant danger signals. they can and sometimes should shatter complacency and cause one to re-examine a problem. the strasbourg statistics covering as they do a large number of years administration of the convention do suggest that we should re-examine the assumption that we do not need the convention in our law. when interpreting the figures which i shall give you, it is necessary to remember that every state which is party to the convention other than the united kingdom has by one mechanism or another effectually incorporated the convention into its law: in some states, the convention became part of their law upon ratification: in others, they had the benefit of a written constitution including a positive declaration of the rights and freedoms secured by the convention. the council of europe has issued figures covering cases dealt with by the court of human rights, the committee of ministers and the commission over the period 1953 to the end of 1984.9 the institutions dealt with a grand total of 205 arising within 13 contracting states: 57 violations were established, of which 18 (nearly one third) came from one state, the united kingdom. the council has also issued some figures for the year 1985.10 596 applications by individuals alleging violation of the convention were received from persons coming from 17 signatory states. 112 came from the united kingdom approximately one fifth of the total. these figures are, of course, less significant than those showing the number of violations established. but in each set of figures britain returned the highest figures of any contracting state. at the very least there must be a strong case for re-examining the adequacy of our law. mr golder is not the only complainant to have found that he had to make the long trek to strasbourg. immigrants, trade unionists, women, detainees for interrogation, are amongst those whose human rights have been held to have been violated in the united kingdom without redress being available save by resort to strasbourg. and all of you will have heard of the now famous thalidomide case in which the sunday times established at strasbourg that the united kingdom law as declared by the house of lords, was a violation of the freedom of the press to impart information guaranteed by the convention. experience suggests, therefore, that we should examine our law. if by incorporating the convention into our law we can provide redress for infringements at home, we shall serve the cause of justice and at the same time avoid the embarrassment of an international court finding that our domestic law does not meet our international obligations. when one looks at our domestic law we find that there is a weakness which arises from the very principle and history of the law. having no written constitution spelling out constitutionally protected rights, we rely on the common law supplemented by statute to protect basic human rights. the common law is part of 9. council of europe, strasbourg: 1985. 10. council of europe, strasbourg: survey of activities in 1985. 134 human rights in an unwritten constitution our unwritten constitution. its principle is simple and, so far as it goes, marvellous, and never (i hope) to be abandoned, namely: you may do what you choose, unless there is a law against it. freedom of speech, personal liberty, freedom of association, the right of assembly and demonstration depend upon the negative protection of the common law: there is no law against what you are doing: unless and until there is, you are, therefore, free to do it. as soon as, however, a positive right requires positive protection, the weakness of the common law is made plain. the right to privacy has no independent existence in english law: it is merely an incident of property. if you have no property, you have no privacy. the common law protects property, not privacy. secondly, the common law cannot itself prevent discrimination between the sexes or on grounds of race, colour, or origin. discrimination is today but was not always in the past, an ugly word: it means choice, selection or option. the common law, true to its principle, protects discrimination: the free man may choose what he does, with whom he associates, whom he employs unless there is a law against it. it follows that you can exercise your choice on grounds of sex or race unless there is a specific law against it: hence the necessity of recent legislation against sex inequality and racial discrimination. these are but two weaknesses in the common law's protection of positive rights. another is, of course, the law relating to trade unions where much of the law's confusion has arisen from the failure of the law to recognise a positive right to strike. indeed, the legal immunities of trade unions, which until recently have been a distinguishing, even a notorious, feature of our trade union law, would never have been necessary if there had been, as there is in other countries, a fully developed law of positive rights and duties in this field. our law needs to recognise that there are positive rights and obligations which a modern society has to protect and enforce. the common law's principle of freedom based on the absence of prohibition is not enough. it is the negative character of our law's approach to the problem of protecting and enforcing our basic rights and obligations which makes it necessary to introduce a bill of rights. and we have to hand, as the house of lords select committee has recognised, the european convention with its assertion of positive rights, freedoms and duties to which we are bound and which can without difficulty be incorporated into our law. i therefore conclude that a bill of rights will be valuable even in our largely unwritten constitution: and that we would serve the cause of justice if we were to try once more to get parliament to enact one. 11. a valuable summary will be found in lester, [1984] public law 46, at p.65. this article is an outstanding contribution to the literature. 135 organisation and development of the legal profession in africa, in particular the ability of the bar and judiciary to uphold the rights of both the citizen and the state his hon.judge t o. elias'*' by way of a preface to the present study on the legal profession in commonwealth africa, i a brief reference should be made to some of the less well-known contributions made by lord denning to the expansion of the frontiers of english law in this field. i wish to recall that i first sat under the chairmanship of lord denning in the committee on legal development in the colonies, under the auspices of the house of commons, in 1954; i was later honoured by an invitation of the chief justice of trinidad and tobago to give a commonwealth lecture series there in the footsteps of lord denning who had, a few years earlier, given a similar, but no doubt more authoritative, series oflectures on the common law in trinidad and tobago; and at the commonwealth magistrates association conference at kuala lumpur i was to have given one of the keynote addresses under lord denning's chairmanship, but the second coup d'etat in nigeria, in july 1975, prevented me from leaving lagos to attend the conference. i should also recall the two notable occasions when lord denning came to nigeria: once to participate in the constitution-making conference on the eve of independence, and again, in 1974, when, accompanied by lord elwyn-jones the then lord chancellor of great britain, lord denning sat with my colleagues and me, as chief justice, in the supreme court of nigeria to hear an appeal case. thus lord denning can be seen as an indefatigable promoter of the development of the legal profession in the newer commonwealth. the legal profession in africa, both at the national and the inter-african level, has had a somewhat chequered history, but the period 1957 to 1960 may be "judge, sometime president, international court of justice. l the occasion for this study was the invitation by the international bar association for me to deliver the keynote address at the african regional conference, held in nigeria, on the main topic, entitled: "organisation and development of the legal profession in africa, in particular the ability of the bar and the judiciary to uphold the righls of both the citizen and the state" on august i, i985. 49 the denning law journal regarded as its watershed. we may perhaps begin the story with the london conference, held under the chairmanship of the right hon. lord denning, on the "future of law in africa" at the beginning of the year 1960, which lord denning described in his foreword as: "for africa a year of decision, indeed a year of destiny. one country after another is acquiring independence, or looking forward to it. statesmen and lawyers are meeting together to frame new constitutions. but the well-being of a people depends not only on the form of government they have, but also on the ordinary laws of the land. and it is the ordinary law which the conference considered." 2 as well as discussing general legal problems, the conference considered the issue of legal education, which lay at the root of the legal profession throughout africa. it noted that, with the approach of independence, various countries were already showing real concern with the future of their laws. two major problems loomed large on their horizon: reorganization and reform of legal education and the provision of research into the local and the indigenous laws to serve the needs of the emerging nations. as for legal education, this had almost everywhere been obtained in the united kingdom and ireland and that meant that the lawyers thus available were learned only in the laws and practices of england and ireland, but knew not african customary laws which formed reasonably substantial parts of the law they must practise back home in africa. knowledge of these local laws had to be painfully and gradually acquired by long practice as their overseas training had not, and could not, have embraced african and islamic laws. it therefore b?came necessary that legal education, to be meaningful and useful in conditions of independence, must be provided locally and urgently. in nigeria, a federal government committee report, in 1959, recommended the establishment of a faculty of law at the university college, ibadan, to teach academic courses in the traditional law subjects for three years, while a law school was to be established in lagos to teach an additional one-year professional law course with particular emphasis on the solicitors' side of the profession, since the local legal profession is fused and practitioners were called to the local bar and required to practise as barristers and solicitors, even though their overseas training had been limited to that of barristers. also, at the london conference, it was noted that a law school and a separate department of law had been set up at university college of ghana. for some time a law school had been established at the university of liberia, teaching a three-year course after completion of the university course. the conference noted that there was as yet no provision for legal education in east africa, although the royal technical college, nairobi, provided instruction in one or two subjects of legal interest. in the sudan, the faculty of law was being expanded at the 2. the fulure oj law ill ajrica: record oj proceedillgs oj the lollium coilference, 28 december /959-8 jalluary /960, butterworth & co., london, 1960. 50 organisation and development of the legal profession in africa university of khartoum to provide full-scale teaching for practice at the bar. law teaching was just beginning at the then university college of rhodesia and nyasaland. in the united kingdom itself, the legal education being provided at british universities was being broadened in many cases to cater for the special needs of overseas law students. indeed, a start had been made to offer limited courses in african and islamic law in places like the london school of oriental and african studies and the university of southampton. the council of legal edl.j.cation offered three-month post final courses following the bar finals, in addition to being able to take one or two papers in african and islamic law studies. in this way legal education in the united kingdom began to go some way to meeting the needs of african law students during this transitional period. all these could not, however, be regarded as a substitute for what africa needed for its post-independence legal profession. the london conference finally recommended the setting up of a committee, under the chairmanship of lord denning, for a consideration of what facilities should be provided for additional instruction and training that might be required to ensure that those members of local bars in africa who obtained their legal qualifications in the united kingdom possessed the knowledge and experience requisite to fit them for practice, with special reference to (i) the acquisition of practical experience in addition to academic qualifications; and (ii) the giving of instruction in the functions of solicitor to those who were english barristers or possessed similar qualifications, and who practised as members of a fused profession. consideration was also to be given by the same or another committee to the practical problems associated with bringing this about. establishing the new legal profession it seems sufficient to take nigeria as typical, not only because it has as many members of the legal profession as there are in the rest of black africa put together, but also because its pattern of the new development in the legal profession has been adopted elsewhere in british africa. besides, pride of place must be given to nigeria in that it probably provided the first african legal practitioner to be called to the bar, at the inner temple, in 1828.3 the legal profession of nigeria and, as already explained, of much of british commonwealth africa, may be said to be based on two major enactments the legal education act and the legal practitioners act of 1962. under the legal education act was established the council of legal education for the whole country, presided over by the chief justice of the federation and having as members the federal and state attorneys-general, two judges of at least high court rank, the chairman of the nigerian bar association and some 28 members of the bar appointed by the bar association, the heads of all faculties of law in nigerian universities, the director of the nigerian law school established by the 3. see g. thompson, the firs/ genera/ioli of sierra leolle lawyers (1952), at pp. 52 e/ seq., govt. printer, freetown. this man arrived in lagos after his call to the bar but soon left to establish his practice in freetown; see also, elias, g(fvemment alld politics ill africa 2nd ed. (1963), at p. 145. 51 the denning law journal council and a few other persons appointed by the prime minister. the council is responsible for legal education of all persons seeking to become members of the legal profession. for this purpose the council issues qualifying certificates, although giving the federal attorneys-general power of enrolment of persons wishing to become legal practitioners. but those applying for the certificates must satisi)' the councilor the attorneys-general that they have completed a course of practical training of at least one year at the nigerian law school, after having obtained a university degree in law. the legal practitioners act makes provision for the admission and discipline of members of the legal profession who are made up of both existing and future members who have satisfied the requirements of the legal education act. the roll of barristers and solicitors is kept under the authority and supervision of the chief justice of nigeria, subject to the overall regulation of the general council of the bar under the chairmanship of the federal attorney-general, state attorney-general and some 28 other members of the nigerian bar association and also members of the general council of the bar. a legal practitioners investigating panel, charged with the duty of conducting a preliminary investigation into any allegation of unprofessional conduct against a legal practitioner, was also constituted to replace the legal disciplinary committee which operated in the pre-independence era for over fifty years. this panel consists of the federal and state attorneys-general and ten legal practitioners of not less than five years' standing who are appointed by the nigerian bar association. a case may be referred by this panel to a legal practitioners disciplinary tribunal consisting of a judge of the high court of a state, appointed by the chief judge of that court, the federal and state attorneys-general and fifteen legal practitioners of not less than five years' standing appointed by the bar association. the penalties for unprofessional conduct are admonition, suspension or the striking off the roll of the name of a practitioner found guilty by the tribunal. there is a right of appeal to the supreme court of nigeria. there is a legal practitioners remuneration committee consisting of the federal and state attorneys-general, chairman and three members of the nigerian bar association, existing to curb the possible charging of excessive fees by legal practitioners. other safeguards for clients exist in respect of the keeping of accounts and other records for clients' monies, including the compulsory banking of these monies, and there is provision for ensuring liability for professional negligence of any practitioner guilty of the offence. there are provisions for the exemption of certain lawyers who are office-holders from the requirement of enrolment, and these are the attorneys-general, solicitors-general, directors of public prosecutions and other such other persons in the public service in the federation or state as may be specified by order of an attorney-general. one important provison of the legal practitioners act is that the legal profession must remain fused, that is to say, that a practitioner continues to be entitled to practice 52 organisation and development of the legal profession in africa as a barrister or solicitor, as has been the case since the early 1860s. another important provision is that the chief justice of nigeria has power to grant an ad hoc permission to a lawyer from a country with similar legal arrangements to appear before a nigerian court, often based on reciprocity. this implies that there is no general right of non-nigerians to be permanently enrolled with a view to setting-up in practice as a barrister and solicitor. those nigerians who had been called to the nigerian bar and who were not ordinarily resident in nigeria ceased to be members of the nigerian bar as from the date of the coming into force of the act in 1962. generally, a person is entitled to have his name enrolled: (a) ifhe is a citizen of nigeria; (b) if he satisfies the chief justice that he is of good character; and, (c) if he produces to the registrar of the supreme court a qualifying certificate showing that he has fulfilled the requirements of the legal education act, that is to say, that he has a recognized university degree in law and that he has passed the examinations of the nigerian law school at the end of the one-year course. it is useful to mention that africans from other countries have been taking university degrees in law and been allowed to attend courses at the nigerian law school and, of course, been called to the nigerian bar, since 1962. an important provision of the legislation and other regulations made under it is that such arrangements have been made for citizens of the organization of african unity to become qualified as members of the legal profession in nigeria upon satisfying the necessary legislative requirements. the council of legal education has, of course, to sanction such exemptions in favour of nonnigerians wishing to practise law in nigeria. in this way the legal education act, as well as the legal practitioners act, has ensured that only those satisfying them can become members of the nigerian legal profession. there are exemptions in the case of those who had university qualifications in law outside nigeria, but they must also go to the nigerian law school for one year, if permitted to do so by the council of legal education. their qualifications must be those of certain specified universities in america or elsewhere in the commonwealth, for which arrangements have been made beforehand by the council of legal education. all those candidates admitted to the one-year course at the nigerian law school must also attend courses in the nigerian legal system, the nigerian constitution, the nigerian land law and the nigerian criminal law, showing also a certificate obtained at the end of the one-year course. only graduates from nigerian universities are exempted from this part 1 of the course in the nigerian law school. all students must of course pass also part 2 which consists of the traditional subjects like contract, tort, equity and trusts, company law, industrial law and, of course, etiquette and other subjects necessary for practice as a solicitor.4 the foregoing arrangements for the legal profession in nigeria may be taken to apply, mutatis mutandis, generally to british africa. the position is also governed in 4. elias, nigeria: developmelll of ils laws arid collslilulioll, british commonwealth series, no. 14, stevens & sons, 1967, at pp. 387-395. 53 the denning law journal those countries by the legal professions act of 1960 of ghana, which came into force in 1962, superseding the general practitioners act of 1958. there may be a general council of the bar or a board of legal education but the overall provisions are generally as described above.s the african legal profession before and since independence the organization of the legal profession just described above clearly antedates 1960. as already stated, the first nigerian qualified in and returned from the united kingdom in 1828, since when, and probably before which time, lawyers have been returning in increasing numbers to nigeria, ghana and sierra leone. some account has been given about the profession in ghana,6 sudan, kenya and tanzania; in kenya, for instance, the london conference noted that there were, in 1960, over 300 local (expatriate) practitioners.7 gai lamented the absence of african lawyers in kenya and tanzania in the early 1960s in these words: "the result was that there were no african lawyers in kenya and tanzania until well into the 1960s, and even then there were only two in tanzania and five in kenya. the exclusion of africans from the legal profession had a number of consequences for the role of the profession and the development of the economy in the rural areas.,,8 ghana would seem to have had 903 members of the legal profession at that time.9 nigeria is estimated to have had about 5000 lawyers. this fact, as well as the relatively longer established nature of the nigerian legal profession, may explain why a number of african countries during the 1960-1970 decade turned to nigeria for the provision of lawyers for government service. thus a chief justice to uganda, another chief justice to botswana, one or two supreme court justices to kenya, tanzania 10 and malawi, some state counsel to sierra leone, and the president of the court of appeal in gambia, were all lent to these countries at their request, often with substantial subsidies paid by the nigerian government. other nigerian lawyers also served in some of these territories as law professors, lecturers and research officers, especially in zambia and uganda. indeed, this is an outstanding achievement for nigeria of technical assistance in inter-african cooperation in the legal field.ii 5. elias, charla and sierra leol/e: developmellt of their laws arid coilst;tut;oils,british commonwealth series, no. 10, 1962, at pp. 140-146 and pp. 281-283. 6. see lawyers ;1/ the th;rd world: comparat;u a/ld developmelltal perspectives. edited by dias, luckman, lynch and paul, scandinavian institute of african studies, uppsala, 1981, chaps. 4-9. 7. see fuliire of law ;1/ afn'ca, supra 1/.2 , at p. 48. 8. see lawyers ;1/ the third world, supra /1.6, at p. 149. 9. ib;d., at p. 128. 10. there were at the time of the nigerian civil war some 29 other nigerian lawyers on the bench in tanzania and in other legal posts. they were, of course, all withdrawn from tanzania when the laner recognized the secessionist biafra. 11. the present writer was federal anorney-general and minister of justice from october 1960 to february 1972 and it was to him that all these requests from other governments in africa for lawyers and judges were addressed, since most of the government legal functionaries had been known to him in the united kingdom and elsewhere. 54 organisation and development of the legal profession in africa on the basis of the new reorganization of the legal profession, and the advance made since then, the legal profession in africa has been considerably enlarged. 12 their role at independence cannot, therefore, be underestimated, if only in creating the climate of opinion conducive to the reception of the new constitutional ideas regarding the rule of law and democracy in africa. most, if not all, the independence constitutions have contained conspicuous chapters on fundamental human rights, borrowed largely from the united nations universal declaration of human rights of 1948. a careful study of most of the independence constitutions in africa reveals that there are fourteen heads selected for the fundamental human rights that should be protected. these are: 1. the right to life of the individual against any arbitrary deprivation of it; 2. freedom from inhuman treatment, that is, from any form of bodily or mental torture, whether in the extraction of confessions from an accused person or from a witness in a judicial proceeding or in any other circumstance of domestic life; 3. freedom from slavery or forced labour, that is, any form of human bondage, including customary practices of pawn or pledge of persons for debt; 4. the right to personal liberty, which, although this will be found in many of the countries' domestic laws, is especially enshrined for additional guarantee; 5. rights concerning civil and criminal law, particularly from the point of view of establishing principles and practices for the fair and impartial administration of justice in open court; 6. the right to private and family life, that is, the right to respect for his private and family life, his home and correspondence; 7. rights concerning religion; 8. the right to freedom of expression in its various forms; 9. freedom of peaceful assembly and association; 10. freedom of movement and residence, especially the right to leave and return to one's own country and to reside wherever a person likes within that country, including the right to a passport and similar facilities; 11. the right to compensation for the compulsory acquisition of private property by a government or a government agency; 12. the enjoyment of fundamental rights without discrimination and freedom from discriminatory legislation, whether on the ground of ethnic differences or on any other ground, based on differences of race, sex and similar grounds; 13. derogation from fundamental rights, especially for reasons connected with the event of war or on the declaration of a state of emergency or when democratic institutions are threatened by subversion in any part of the country; 14. the clearly restricted power of the central government for the safeguard and protection of the country as a whole.13 12. one estimate is that th~re may probably now be about 11,000-12,000 members of the legal profession in black africa. 13. elias, nigeria: development of its laws and constitutio,l, supra n.4, at pp. 143-162. 55 the denning law journal equally important are the provisions of the constitution making elaborate arrangements for the police force to ensure the orderly conduct of public and private affairs in accordance with the provisions of fundamental human rights, especially those relating to the right to life and the personal liberty of the subject; for example, that no one should be detained or have his movements restricted for more than 24 hours before being formally charged before a court oflaw. there is also the reorganization of certain sections of the judiciary so as to ensure the appointment, dismissal and disciplinary control of judges of the superior courts of law and those of customary and local courts throughout the country, including the necessity for ensuring the independence of the judiciary from political and executive interference of any kind. another very significant provision under the fundamental human rights is the inclusion of specific arrangements for the creation of a common citizenship throughout the country, since this is to promote uniformity of treatment of the various ethn.ic groups to be found in almost every african country; this phenomenon underlies many of the problems of selection of members of the various legislative houses or bodies and the appointment of most political and executive officers as public functionaries. also important is the portion of every constitution providing for future amendments. since the importance of democratic government is the eternal aspiration after the ideal of social justice for all members of the community, the entrenchment of the fundamental human rights and freedoms is a sine qua non for ensuring the success of independence. this is why all these newly independent countries in africa have done so, in addition to whatever provisions they already had in their laws guaranteeing some of these rights. this is desirable, not only in multi-racial countries, but also in multi-lingual and polyethnic communities. africa is full of these. of course, the mere entrenchment of provisions of fundamental human rights in a constitution does not, in itself, guarantee that they will necessarily be enforced after independence, but, since, once entrenched, they are not easy to amend or remove, they at least constitute a warning and a challenge to those who might later want to set the law at naught. these provisions may also be seen as one of the most suggestive means of political education in the subtle and civilized ways of democracy, not only for the new leaders, but also for the people at large. the legal profession in action if, as we have accepted, the legal profession dates back to the 1820s, it is permissible to refer to a few incidents which occurred in the closing years of the 19th century. no attempt will be made to catalogue all the events, but mention will be made of a few to illustrate the activities of members of the legal profession, mainly in west africa.14 14. since there were no african members of the 300 or more lawyers at the london conference on the future of law in africa, the conference noted that the advancement of africans in the legal profession in east africa had had to be long delayed for fear that the east african lawyers would follow the example of their west african predecessors. see pi/lure of law ill africa, supra n.2, at pp. 49-51; see also, lawyers ill ihe third world, supra n.6, at pp. 148-149. 56 organisation and development of the legal profession in africa in 1897, the government of the then gold coast introduced into the legislative council a public lands bill in order "to regulate the administration of public land" in the colony. this was taken by the public as an attempt by the crown to expropriate their land, and a delegation of the gold coast aborigines rights protection society (later re-christened west african aborigines rights society), a political movement consisting of chiefs and educated africans, under the leadership of john mensah sarbah, the first gold coast african lawyer, went to london to interview joseph chamberlain, in order to protest against the passing of the bill. the government appeared to be intent on passing this bill so as to check the activities of certain european concessionaries and african traditional chiefs, some of whom were keeping for themselves the royalties accruing from gold mining. as a result of the visit of this delegation the bill was withdrawn by the government of the day in the colony.15 the society became accepted as a body which the local british administration made a practice of consulting on all important measures before they were adopted and passed into law in the council. this practice of consulting that body was maintained by the british administration till 1925 when the official majority was replaced by that of the unofficial african members in the council. so important is the subject of land to africans everywhere that this episode led to a west african delegation of lawyers and other political leaders in nigeria, sierra leone and gambia holding a conference with their gold coast counterparts to consider the issue, under the title of what is known as the west african land question. the claim was that the government's attempt to vest all unoccupied land in the gold coast colony in the crown was a thin edge of the wedge which would soon be driven into other west african territories. this was regarded as likely to amount to a complete expropriation of their indigenous owners and that of ashanti and kumasi, leading to the acquisition of lagos land and other territories in west africa. the conference also emphasized that their reason for political agitation was to pre-empt a possible european settlement being established in west africa as had happened in east africa. around that time there was afloat a proposal by lord leverhume to acquire certain plantations in west africa. in view of the opposition the whole idea was dropped.16 sierra leone would seem to have been a strong headquarters for the location and practice by african lawyers during the first half of the 19th century. one or two examples may be given. a mr robert dougan, barrister, of mixed descent, described as a mulatto, arrived in freetown in 1831, served as proctor to the mixed commission court, queen's advocate and acting governor on two occasions and died in 1871. there was also john carr, a west indian of african descent, who was queen's advocate and chief justice of the colony of sierra 15. see caseley-i-iayford, the truth about the west africa/1 la/1d q}/cstio/1 (1898); and also lord hailey, all africa/1 survry (1957), at p. 520. 16. elias, gha/1a a/1d sierra leo/1e, supra n.5, at pp. 30 and 49; lord i-hiley, all afn'ctm surve)', ibid., at p.732. 57 the denning law journal leone from 1840 till 1867, during which period he acted as governor on several occasions and retired in 1867; he later died in london in 1880.17 there would seem to have been in the colony a sizeable proportion of practising lawyers in the last half of the 19th century. the sierra leone bar association must be one of the oldest in west africa, since it has been recorded that it addressed a letter of protest on behalf of the colony in 1899 to the secretary of state for the colonies in london on the then burning question of the mende revolt of that period. is it is little wonder then that when independence came to sierra leone, on april 27, 1961, it became one of the active centres of agitation by its bar association against what was considered to be high-handed government. thus when the new constitution of sierra leone was introduced in june 1978, and passed rapidly through parliament without the committee stage or public comment, creating a one-party state,19 giving the president wide powers for declaring a state of emergency, the bar association rose in revolt. the constitution gave the president power to take any measures he deemed necessary regardless of lack of conformity with the existing laws. the courts were given jurisdiction under the constitution to review emergency measures to determine whether such measures were "reasonably justifiable" for the purpose of dealing with the situation which existed immediately before or during a state of emergency. the lawyers felt particularly affronted by the provision which weakened the tenure of judges in section 115(1a), which provided that "judges of the supreme courts ofjudicature may be required by the president to retire at any time after attaining the age of 55 years." this was contrary to section 115(1c), which required mandatory retirement of judges only at the age of 65. thus the power given to the president to retire judges at an earlier age was declared unconstitutional and claimed to be invalid by the bar assocation, which no doubt recognized the right to remove incompetent judges under section 115(3) only after due process of law. such was the strong opposition of the sierra leone bar that, while reluctantly putting up with the one-party state system, it finally succeeded in having the constitution amended.2o this whole episode is only one of several which the sierra leone bar has fought and won. it is to be noted that sierra leone was not alone in experiencing bouts of declarations of emergency since independence, especially following coups d'etat. nigeria, ghana, uganda and other countries have had their own trying experiences.21 the prevalence of this phenomenon in nearly all parts of the third 17. elias, ghalla alld sierra leolle, ibid., at p. 256. 18. see crooks, the colollial poliry of lord jollii russell's admillistratioll (1843), vol. 2, at pp. 344-345, cited in elias, ghalla alld sierra leolle, at p. 283. 19. for a detailed study of the constitutional problem relating to human rights in a one-party state, in tanzania and zambia, see the records of an irjlemaliollal semillar orl humall rights, their protectioll arid the rule of law ill a olle-party state, convened by the international commission of jurists, search press ltd., london, september 1976. 20. cljl bulletill, no.4, pp. 20-21. 21. see elias, africa alld the developmerlt of lll/ematiorial law (1972), ch. 6 on the legality of illegal regimes in africa. 58 organisation and development of the legal profession in africa world has provoked the interesting study: states of emergency: their impact on human rights.22 a somewhat comprehensive review of preventive detention laws and practices in australia, burma, eastern europe, india, japan, philippines, singapore and the soviet union will be found in an earlier study of the commission in 1961. 23 another significant example of a bar association challenging executive excesses may be cited from the sudan. the constitution of sudan contained in section 62 these words: "advocates shall defend the constitutional rights of the citizens and shall adhere to the ethics of the profession in accordance with law." the sudan bar association interpreted this provision as prescribing not only a duty incumbent upon the lawyer as an individual, but also as imposing a duty upon the bar association actively to defend the rights and liberties of the citizens as a whole. the association accordingly petitioned the government in 1977 for the repeal of certain laws restricting the constitutional rights of the sudanese people and of the independence of the judiciary. the association sent memoranda to the president of the republic in 1977 and 1978, stating the position of the bar in the matter and also in 1979 sent a similar memorandum to the attorney-general requesting him to propose to the people's assembly a bill repealing the laws in question. the president of the bar personally sought audience of the president of the republic and was assured that the proposal of the bar would be given careful consideration. the proposal, as adopted by the president, was referred to a high-ranking advisory commission, but no bill was submitted to the legislature on the subject. because of this failure of the government to move in respect of the permanent constitution of sudan (amendment) act 1975, which the people's assembly adopted on 16 september 1975, some days after an abortive military coup, article 41 of the constitution which guaranteed freedom of movement, and article 66 which prohibited arrest without warrant while at the same time guaranteeing prompt access to a court after arrest, were both amended by the addition of clauses permitting the legislature to create a system of preventive detention and providing for assignment of residence. the amendment also empowered the legislature to create special procedures for notifying a person detained or assigned to residence of the reasons for such an order or the manner in which he should receive a hearing, but the act specified that such a procedure should be followed only "when possible." at the time of the bringing into force of this act, in 1975, there was in existence already a system of preventive detention under the state security act of 1973. the amendment now being complained of was regarded by the bar association as designed to eliminate the possibility that the supreme court would declare unconstitutional this provision of the act which the bar association was already challenging. there were t\vo main grounds prompting the bar association to oppose the act: articles 81 and 82 of the constitution which defined the president's duty towards the nation were amended by the addition of a new clause 22. published by the international commission of jurists, 1983, 480 pages. 23. see jollmal of/he iii/ema/iollaicommissiollofjllris/s, vol. iii (1961), at pp. 27-150. 59 the denning law journal permitting him to make decisions having the force of law. this was considered by the bar association as being inconsistent with article 118 of the constitution which gave the president power to act only jointly with the legislature and not to the president alone. the second ground was that chapter 2 of part viii of the constitution had been amended to permit the creation of one or more courts of state security before then; the only exception to the judiciary's exclusive exercise of the judicial function was the existence of courts martial. this was looked upon as being inconsistent with the rights of every citizen to be tried in normal courts applying normal law and normal procedure. also opposed by the bar association was article 131 of the code of criminal procedure which regulated the president's power to create special courts for crimes against the security of the state. the presidential power of detention and prosecution before special courts was widely employed in the wake of attempted coups in september 1975 and july 1976. several persons, up to 150, were implicated in the coups and brought before state security courts and, according to amnesty international, approximately 100 of them were executed. in view of the strong opposition of the bar association the state security courts fell into disuse by the middle of 1977 and about 1000 detainees were amnestied by 1978. there was, however, a resumption of these practices by the government as a result of the increase in the practice of communists or trade unionists involved in agitation over economic issues and baathists opposed to the government's moderate position on the middle east question. this would seem to illustrate the danger that exceptional powers properly adopted in emergency situations, if left in existence after the end of the original emergency, might eventually be used for purposes different from those for which they were originally adopted. the bar association also sought the abolition of the exercise of political rights act 1974, which was judged to be incompatible with the constitution and the principle of the equality of citizens. in paragraph 5 of the act the sudanese socialist union was empowered, as the sole authorised political party, to deprive a person of his political rights, including the right to be a candidate, the right to belong to constitutional organisations, as well as the right to vote. such deprivations could be imposed for reasons ranging from conviction of certain crimes to formation of factions within the sudanese socialist union or to "lukewarmness" towards the interest of the state. although candidacy for government posts is not restricted to party members, yet this provision gave the party, the only party, an effective power to veto other candidates. the fact that the individual's constitutionally recognized rights could be withdrawn, with no right of judicial review, was particularly disturbing. the third measure against which the bar association protested was the state security amendment act 1976, which enabled the attorney-general to attach all property, movable and immovable, of persons charged with offences under the act. an amendment of 1979 extended the power of attachment to all officials charged with committing crimes in their official capacity. while provisional seizure of assets might well be justified in cases 60 organisation and development of the legal profession in africa where corruption or misappropriation of public funds was suspected, the adoption of this measure to a large category of persons still presumed innocent could cause serious hardship and injustice.24 the rights and duties of lawyers thus recognized by the sudanese constitution to protect the fundamental rights of citizens was a landmark in african constitutional law, reflecting a principle which is only recently being recognized at the internationallevel.25 it is considered that the government of sudan of that period should be congratulated for respecting these rights, recognizing the duties of lawyers in this regard.26 it may be noted in parenthesis that ghana was probably the first independent african country, apart from ethiopia and liberia, to enact a preventive detention act in 1958. it provided for the detention of ghana citizens for actions considered prejudicial to the defence of the state or to relations with other countries or to the security of ghana. under it, persons could be detained for periods of up to five years without trial by an order of the governor-general. the act was designed to discourage subversive activities, whether of individuals or of tribal and other groups. it clearly made a valid detention order not liable to challenge by a writ of habeas corpus in any court oflaw. two opposition members of parliament brought a writ to the ghana supreme court which in its divisional court at accra dismissed their application holding, (i) that it would not accept the applicants' argument that the act as applied by the executive was primitive and (ii) that, although the grounds for the detention would ordinarily be matters regulated by the criminal code, there was no legal bar to the governor-general's exercise of his power under the act. 27 the international commission of jurists and the centre for the independence of judges and lawyers the african legal profession, like its counterparts in most of the other parts of the world, has certainly gained, and is still profiting from, the two institutions: the international commission of jurists and its affiliate, the centre for the independence of judges and lawyers, both based in geneva. the commission exists for the promotion of the rule of law and the ensuring of the establishment and continuance of democratic government all over the world. it operates through the holding of conferences, seminars and colloquia designed for the study and protection of the rules and practices of democratic institutions on a world-wide basis. thus it established its first contact with africa by means of an african 24. that this was in every way contradictory to the maintenance of democracy was pointed out in the international commission of jurists pamphlet entitled "human rights in a one-party state", supra n.i9, at pp. 109i24. 25. see the recent resolution of the un sub-commission on the prevention of discrimination and protection of minorities, 1980, at p., 37. 26. gill bulletin, no.6, at pp. 28-31. 27. see elias, ghana and sierra leone, supra n.5, at pp. 80-81. 61 the denning law journal conference on the rule of law, in lagos, in january 1961, consisting of 194 judges, practising lawyers and teachers of law from 23 african nations, as well as nine countries of other continents. it reached conclusions regarding (a) human rights in relation to government security, (b) human rights in relation to aspects of criminal and administrative law, and (c) the responsibility of the judiciary and of the bar for the protection of the rights of the individual in society. the conference also adopted a declaration inviting the african governments to study the possibility of adopting an african convention of human rights that would protect individuals aggrieved by a violation of public or private law and enable them to seek redress before an international tribunal of appropriate jurisdiction. it ended with the adoption of what was christened "the law of lagos", the gravamen of which is a commitment of all the governments of the countries from which the participants came to constitutional propriety in government and the avoidance of tyranny everywhere, including the requirement that lawyers and judges should always be made the cornerstone of civilized governmental behaviour.28 because of the subjection of judges and lawyers increasingly to all forms of harassment, victimization, arrests, imprisonment and even assassination, by reason of carrying out their profession with the courage and independence that the profession demands, the international commission of jurists established, in january 1978, at its headquarters in geneva, a centre for the independence of judges and lawyers, following the decision on this subject taken at its 25th anniversary meeting in vienna in april 1977. among the main objectives of the centre are the collection of reliable information from as many countries as possible aboutthe legal guarantee for the independence of the legal profession and the judiciary, any inroads which have been made into their independence and particulars of cases of harassment, repression or victimization of individual judges and lawyers. such information is distributed to judges and lawyers and their organizations throughout the world; such organizations are to cooperate in this project by supplying information about erosion of the independence oflawyers and judges in their own or in other countries or by taking action in appropriate cases brought to their attention. individual lawyers, as well as their organizations, willing in principle to participate, should address communications to the centre to that effect, on the payment of nominal fees, so that the centre may bring the subject-matter of the information to the attention of the world legal community. attention may be drawn to one or two instances in which the centre has acted. for instance, a mr arthur pickering, aged 30 years, who was the first non-white person to be admitted to the windhoek bar, was a legal adviser to the legally constituted internal wing of swapo. he was arrested together with a number of sw apo officials on 27 april 1979 on the sole ground of his connection with swapo as a lawyer. he was previously detained under the terrorism act in 28. see jol4mal of the intematiolla1 commissioll ofjuris/s, vol. iii (1961), at pp. 3-28; this publication is worth serious re-reading. 62 organisation and development of the legal profession in africa january 1979, when the security authorities were investigating a bomb explosion in swakopmund, but was released after ten days without charge; he was rearrested under a proclamation which gave the administrator-general of namibia wide powers to detain persons suspected of engaging in subversive activities of a violent nature. the administrator-general was given powers under the proclamation to determine the period of detention and conditions of release of detainees. the proclamation provided for a committee to review detention orders, but the administrator-general was not bound by its recommendations. the centre for the independence of judges and lawyers, on the matter being brought to its attention, wrote to the administrator-general expressing its concern and pointing out that independence of the legal profession is essential to the proper administration of justice and that the detention of a lawyer without charge strikes at the very basis of this independence. mr pickering was eventually released from imprisonment and allowed to continue his legal advising to the legally constituted local branch of swapo.29 another instance of the successful intervention of the centre was in connection with mr john m. khaminwa, a prominent and well-respected lawyer in kenya, who was arrested on 3 june 1982 by officers of the central investigation department. a member of the kenyan law association and an advocate of the high court of kenya, of the high court of uganda and of the high court of tanzania, khaminwa was held under the provisions of the preservation of public security regulations, and was not charged with any specific offence. the information reached the centre from several sources, saying that mr khaminwa had never affiliated himself with any political organization and that he was a very good lawyer with a commitment to the rule of law, which made him willing to handle cases which others were unwilling to undertake. the belief was widespread that mr khaminwa's arrest was motivated by his representation of persons who were critical of the government and who had private claims against government officials; he also represented the wives of several government officials during their divorce actions in court. at the time of his arrest mr khaminwa was involved in two cases which had received widespread publicity. he was representing george anyona, who had been arrested shortly after he had publicly defended the formation of a second political party in kenya. mr khaminwa attempted mr anyona's release by filing a writ of habeus corpus, but was unsuccessful.3o the other case involved a german business man with a civil claim against the attorney-general of kenya, joseph kamere, who had impounded an automobile and equipment owned by the german business man. mr khaminwa obtained a court order directing mr kamere to return the automobile and the equipment. mr khaminwa's arrest was a serious threat to the independence of the legal profession in kenya which was highlighted in the local daily of july 20, 1982. it is clear that 29. cijl bul/elill, no.4, at p. 18. 30. cijl bul/elill. no.4, at p. 18. 63 the denning law journal the rule of law is not furthered when lawyers who have represented unpopular clients or causes are arrested and detained without charge or trial. 31 mr khaminwa was detained from june 3, 1982 till october 12, 1983 when he was eventually released.32 the african bar association the african bar association is a federation of national bar associations from english-speaking commonwealth countries of the continent. at its third biennial conference in 1978 it adopted the freetown declaration, undertaking as its main commitment the promotion of human rights in africa and emphasizing in particular the right of the individual to access to the courts and the observance of due process of law as well as the need to oppose laws restricting or ousting the jurisdiction of the courts and penal laws having restrictive effect. at its fourth biennial conference, held in nairobi from 27 july to 1 august 1980, were present delegates from twelve nations: botswana, gambia, ghana, kenya, lesotho, malawi, nigeria, sierra leone, tanzania, uganda, zambia and zimbabwe. the theme of the conference was "law and democracy in africa", under the headings: "courts and democracy", "democratic process in africa", "human rights and a written constitution", "human rights of african women" and "human rights and human development in africa". at this conference also the outgoing secretary-general, mr amok wako of kenya, gave an account of the association's efforts to promote human rights since the adoption of the freetown declaration of 1978. the african bar association participated in several preliminary meetings, one sponsored by the united nations and the other by the organization of african unity, for the purpose of drawing up an original human rights instrument and a mechanism for implementing it. the outcome was the adoption of the african charter on human and people's rights by the organization of african unity assembly of heads of states in nairobi in july 1981. moreover, the african bar association played an important role in the creation of the inter-african union of lawyers which is a professional organization encompassing the entire continent. another important aspect of the association's activity was its intervention with the governments of ghana, swaziland, tanzania, uganda and zambia, regarding possible human rights' violations, resulting in at least two cases where detained lawyers were released from prison. this fourth biennial conference by the association ended with the adoption of several resolutions concerning human rights, including one recommending the adoption of constitutional provisions limiting the term of office of the president or chief executive of a country, another recommending greater involvement of women in decision-making and yet another calling upon member bar associations to work towards the ratification of the african charter of human 31. c!jl bullelill, no. 10, at pp. 5-7. 32. q7l bulle/ill, no. 12, at p. 4. 64 organisation and development of the legal profession in africa and people's rights and urging governments to ensure that "development policies are truly designed to enhance the advancement of rights for the people of that country." it is interesting to record here the text of a resolution on the judiciary: "the position of the judiciary in the realization of human and democratic rights is of central importance. the judiciary because of its insecurity has not satisfactorily played its leading role in the development of the democratic process. the method of appointing judges and other judicial officers is identified as one of the factors leading to the present judicial attitude. the conference consequently resolves: 1. that the judiciary in each member country be more assertive, innovative and bold on fundamental rights issues and that the legal profession in each member country must be represented in each judiciary service commission and should play an active role in the appointments of judges; 2. that the appointing of judges on contract derogates from and strikes at the very core of democratic process and judicial independence. judges must therefore normally be appointed on a permanent basis and their security of tenure constitutionally agreed." the association also established an aba human rights committee to have constituent meetings in each member country. its main function is to "educate the public on their fundamental and human rights and to supervise and monitor the enforcing and breaches of human rights in member countries." 33 another conference of great interest to the african legal profession was the world conference on the independence of justice, held in montreal, canada, from 5 to 10june, 1983 and attended by delegates from five continents and over 20 international organizations and professional bodies, including international courts. the conference was organized by the former chief justice of the superior court of quebec, jules deschenes. it ended by adopting the universal declaration on the independence of justice, which was later submitted to the united nations sub-committee on prevention of discrimination and protection of minorities. the five commissions into which the conference was divided consisted of international judges, national judges, lawyers, jurors and assessors, as well as the representatives of the international commission of jurists and the centre for the independence of judges and lawyers.34 finally, mention must be made of the 19th biennial conference of the international bar association, held in new delhi from 17 to 23 october, 1982, when the two main topics of the conference were: "the eighties the challenge to the legal profession and the judiciary" and "legal problems of investment by international companies in developing countries". 33. cijl bullelill, no.8, at pp. 15-17. see also, cljl bullelill, no.7, at p. 27, dealing with the geneva meeting on the independence of lawyers which was attended by some 11 international organizations, including the inter-african union of lawyers, on 13 mareh 1981. 34. cljl bulletin, no. 12, at pp. ]3 and 27-57. 65 the denning law journal two separate plenary sessions were devoted respectively to the judiciary and to the legal profession. at that conference the international bar association's project on minimum standards ofjudicial independence successfully completed its task. the standards were adopted and were to be known as the delhi minimum standards of judicial independence. the project had been undertaken by the administration of justice committee of the general practice section of the international bar association. dr l. m. singhvi, un special rapporteur on the independence of judges, lawyers, jurors and assessors, in his valedictory remarks, congratulated the international bar association on its adoption of the standards and noted the contributions these standards would make to the reaching of a worldwide consensus. the international bar association's project plans to undertake the preparation of a report on compliance with the minimum standards of the judiciary in various countries. the minimum standards of judicial independence consisted of 56 detailed provisions35 which should serve the african bar association particularly well as a useful vademecum for its future work. 35. cijl bulle/in, no. 11, at pp. 22-23. 66 human rights, 'arranged' marriages and nullity law: when do 'force', parental 68 denning law journal 2017 vol 29 pp 68105 public goods and criminalisation james slater* 1. introduction theories of criminalisation seek to identify the criteria by which behaviour is legitimately criminalised. this article believes that their success in so doing is best assessed if they examine the question of criminalisation in light of four desirable features for any such theory. these desirable features, which this article will term desiderata for short, are as follows:  desideratum 1: a theory of criminalisation should offer an evaluative framework that justifies the form of legal regulation known as the criminal law.  desideratum 2: a theory of criminalisation’s evaluative framework under desideratum 1 should allow for a coherent and defensible account of the criminal law as morally censorious, thereby articulating something distinctive about the criminal law as a form of legal regulation.  desideratum 3: a theory of criminalisation should display a coherent understanding of how its evaluative framework under desideratum 1 integrates with a theoretical account of the purpose, and legitimacy, of the state.  desideratum 4: a theory of criminalisation’s evaluative framework under desideratum 1 should distil criminal from non-criminal behaviour in a principled and defensible way. given that the defence of each desideratum would arguably generate an article apiece, the aims of this article are consequently more modest. it is aimed at those who already accept one or more of them. it will demonstrate the success, in satisfying the desiderata, of a theory of criminalisation embedded in the notion of public goods. it shall call this theory the public goods account (the ‘pga’). the pga is not an entirely * senior lecturer in law, university of buckingham. i am very grateful to john gardner, bob watt, march stauch, natalie pratt and sarah sargent for their comments on earlier drafts of this article. the usual disclaimer applies. the denning law journal 69 new theory, as elements of it can be found in the writings of a number of theorists.1 however, by expanding on, exploring and assessing these elements in light of the desiderata, this article offers further support to a theory of criminal law embedded in the notion of public goods. in order to understand the pga, it is necessary to begin this article with a section outlining the nature of public goods. subsequent sections will then address how the pga satisfies each desideratum, in the order they are set out above. 2. the nature of public goods in order to understand the nature of public goods, it is first necessary to understand the nature of a good. a good is a defined instance of the exercise of valuable autonomy that manifests itself in a particular moral, political, social or economic context.2 individual goods are those when only one person exercises the relevant form of valuable autonomy: examples include eating and sleeping. shared goods are when the exercise of valuable autonomy requires two or more people to cooperate: team sports and many forms of sexual activity are examples. finally, an important feature of goods is that their autonomy component requires that the good be freely chosen. turning attention to the concept of a public good, joseph raz has provided the following definition: [a good] that refers not to the sum of the good of individuals but to those goods which, in a certain community, serve the interest of 1 see, for example: j horder, ashworth’s principles of criminal law (8th edn, oup 2016) chapter 3 ‘criminal law values’ and ‘bribery as a form of criminal wrongdoing’ (2011) 127 lqr 37; j gardner and s shute, ‘the wrongness of rape’ in jeremy horder (ed), oxford essays in jurisprudence: fourth series (oup 1998); reprinted with minor changes in gardner, offences and defences: selected essays in the philosophy of the criminal law (oup 2007) 1, 31; ap simester and a von hirsch, crimes, harms, and wrongs: on the principles of criminalisation (hart publishing 2011) 42-43. 2 as such they may require social forms to exist, see j raz, the morality of freedom (clarendon press 1986) 309-312. see also raz, ethics in the public domain: essays in the morality of law and politics (clarendon press 1994) 121. this is the notion of valuable autonomy being dependent on social forms that give that autonomy meaning. for reasons of space, this claim cannot be interrogated here. public goods and criminalisation 70 people generally in a conflict-free, non-exclusive, and nonexcludable way.3 as raz states, public goods possess the following characteristics: noncompetitiveness, that is to say that one person’s enjoyment of the public good does not diminish that of others, though different persons will benefit to a different degree, and non-excludability, that is to say the public good is available to all, and benefits all, without exclusion.4 thus, for example, the systematic provision of clean air is a public good, as the benefits of clean air are then enjoyed by all, and one person enjoying the fruits of clean air does not diminish its availability to others.5 having outlined the nature of, on the one hand, individual and shared goods and, on the other, public goods, the connection between them can now be articulated: public goods are constituted by the non-exclusive and non-competitive availability, in any given society, of a range of individual and shared goods.6 in other words, the ability to exercise the valuable autonomy of the relevant individual or shared goods is enjoyed by all citizens, that is to say non-rivalrously and without discrimination.7 3 raz, ethics in the public domain: essays in the morality of law and politics ibid 52-55, where raz sets out his theory of public goods. raz also uses the terms “common” and “general” good. see also 122, where raz states that “… the conditions of autonomy … depend on the common good, that is, on a good which if available to one is available to all and whose benefits can be had by all without competition or conflict.” see also george klosko, ‘the principle of fairness and political obligation’ (1987) 7 ethics 353. 4 klosko, ibid 353-354; klosko notes: “[public goods] cannot be enjoyed by particular individuals without being made available to a much wider group of people, frequently to all members of the community.” klosko therefore implicitly accepts, correctly in the view of this article, that there may be (a few) legitimate exclusions from public goods. these include the exclusion of children from the franchise and the legal right to enter contracts. such exclusions must, nevertheless, be carefully justified. perfectionist liberals, such as raz, might do so for reasons different to those committed to impartial liberalism. 5 raz, ‘rights and politics’ (1995) 71 indiana law journal 27, 35. 6 ibid 37: “an adequate range of goods in society is a common good.” 7 public goods may well be politically controversial: see raz, ‘rights and politics’ (n 5) 38. iseult honohan also points out, correctly, that the language of common goods can mask political agendas, which suggests the need for political scrutiny: see her civic republicanism (routledge 2002) 157. this article accepts that rights-based, and public reason type, arguments may be needed to nuance and supplement the provision of public goods; for example, the common good of a democratic polity benefits all, but, whilst foreign nationals might be legitimately excluded from the franchise, exclusions based on race are illegitimate. in this regard, see horder, ashworth’s principles of criminal law (n 1) 49. the denning law journal 71 a distinction should be drawn at this stage between, on the one hand, those public goods that are concerned with a single good and, on the other, those goods that embrace a wider variety of goods, termed framing goods by raz.8 public goods concerned with a single good universally provide a range of individual and shared goods based on that good and that good only. sexual integrity is an example: it is constituted by the systematic availability of a sufficient range of the private and shared goods involving sex. another example is a democratic polity, which provides the individual and shared goods that make up a citizen’s democratic identity, not least the individual good of the right to vote. by way of contrast, raz has defined framing goods as those ‘…goods the existence of which is a precondition for the existence of an adequate range of other goods in the society.’9 framing goods include the public peace, which provides for the many different kinds of private and shared goods that are themselves dependent on physical and psychic autonomy. the public purse is also a framing good: it provides general sustenance for valuable autonomy, by financing all the institutions of the state that contribute to the valuable autonomy of its citizens. another example of a framing good is a clean environment, which provides a general enabling environment for a significant range of individual and shared goods. public goods can be positive or negative.10 they are positive when their existence involves the creation, often at public expense, of a supportive environment for the exercise of valuable autonomy, such as green spaces, secondary education and a democratic polity. they are negative when they constitute protection from interferences with autonomy, such as a culture of tolerance, the public peace and freedom of expression. the fact that public goods provide for the systematic protection of individual and shared goods might lead some to think that public goods have no intrinsic value, but are merely instruments in the provision of individual and shared goods. there are two reasons why this is not so, and it will emerge in this article that these two reasons are central to the pga’s conception of the nature, justification and limits of the criminal law. first, public goods have intrinsic value because of their characteristics as non-excludable and non-rivalrous. this characteristic means that public goods instantiate the notion of making the relevant private and shared goods available to all. it is therefore in the nature of public goods that all 8 raz, ‘rights and politics’ (n 5). 9 ibid. 10 as pointed out by horder, ‘bribery as a form of criminal wrongdoing’ (n 1) 44-45. public goods and criminalisation 72 citizens should enjoy the various forms of valuable autonomy made available by public goods; consequently, they reflect a fundamental commitment to the equality of citizens where the exercise of valuable autonomy is concerned. second, public goods have intrinsic value because their contribution to valuable autonomy often transcends the sum of individual valuable autonomy they provide and protect. the framing goods of the property regime and a democratic polity illustrate this capacity. the property regime defines and protects those private and shared goods required to create the regime, including the shared good of contract. however, the economic benefits of the property regime, not least its wealth creating capacity, and the opportunities those economic benefits create, for example through taxation, transcend the sum of individual good each participant derives from the private and shared goods protected by the regime. and it is a significant reason why we value the public good of the property regime that it possesses these overarching benefits. in the same vein, a democratic polity protects those individual and shared goods required to create democratic government, including the individual good of the right to vote. however, a democratic polity also provides a range of benefits that transcend the sum of individual interests it protects. for example, it ensures the continued responsiveness of government to the wishes of the people and maintains, through inter-party competition, the quality of political debate. thus the quality of the political environment is also a concern of a democratic polity, a concern that, once successfully realised, benefits all citizens.11 the above two examples reveal that public goods are valuable not only because they provide valuable options to all citizens; they are also valuable because, by increasing the impact, benefits and consequences of the exercise of valuable autonomy, they enhance the value and effect of those options. public goods are greater than the sum of their parts. this overarching quality is evidenced by the fact that both the above public goods benefit those who are too young to enter contracts or vote, i.e. are ineligible, for legitimate reasons, to exercise the valuable autonomy provided by the relevant individual and shared goods.12 it also explains the inalienability of the right to vote, since the systematic selling of that 11 this is the quality of dual harmony: see raz (n 46) and accompanying text in this article. 12 the point concerning children benefiting from the property regime is taken from raz: see ethics in the public domain (n 3) 53-54. on the question of legitimate exclusions, see (n 4) and (n 7). the denning law journal 73 right would undermine the distinctive benefits provided by the public good of democratic government.13 having expanded on the nature of public goods, attention can now turn to how the pga satisfies the desiderata. 3. the pga and desideratum 1 desideratum 1 (‘d1’) states that a theory of criminalisation should offer an evaluative framework that justifies the form of legal regulation known as the criminal law. its reference to an evaluative framework incorporates explanatory, justificatory and critical strands. by explanatory, it means a theory of criminalisation must set out its criteria for the criminalisation of behaviour. by justificatory, it means a theory of criminalisation must defend those criteria in light of moral and/or political values. in other words, why is the criminal law, as that theory conceives it, a good thing? finally, by critical, a theory of criminalisation should suggest reform and improvement to existing systems of criminal law, whilst possessing a measure of descriptive accuracy where such systems are concerned.14 for reasons of space, and because the critical strand of a theory of criminalisation flows from its explanatory and justificatory strands, this article will focus on the explanatory and justificatory strands. 3.1 the explanatory strand of d1 the pga is a theory of criminalisation that shares with certain theories of criminalisation the notion that wrongfulness, conceived of in some way, is an intentional object of criminalisation. and so, in this section, the article will set out the pga’s criteria of criminal wrongfulness. before proceeding, however, it is necessary to expand somewhat on the familiar distinction between crimes that are mala in se and those that are mala prohibita. admittedly, the nature of this distinction, or even the fact of making it, is controversial. the reason for 13 this point concerning the inalienability of the right to vote and the public good of a democratic polity is taken from raz, ‘rights and politics’ (n 5) 34. 14 the need for theories of criminalisation to have both descriptive and normative dimensions has been summarised by r dagger: see his ‘republicanism and the foundations of criminal law’ in ra duff and sp green (eds), philosophical foundations of criminal law (oup 2011) 44, 45, where he states that such theories “… must account for the leading features of the criminal law and point the way to its reform or further development.” it should be noted that there is a risk of a significant gap between, on the one hand, theories of criminalisation and their account of the rules and principles of the criminal law and, on the other, the implementation of those rules and principles in actual practice. public goods and criminalisation 74 offering an explanation will become clear: the distinction, as this article conceives it, serves as a necessary backdrop to the pga’s account of criminalisation.15 moral wrongs are determinations that certain behaviour should not be performed in light of the moral reasons for and against that behaviour in any given context. on occasion the wrongs that emerge from such determinations will admit of relatively little disagreement as to their form: it is the crimes that seek to reflect such wrongs that are mala in se. it is for this reason that, when they accurately reflect their source morality, mala in se crimes such as murder and rape take much the same form across jurisdictions. it is the precision of the source morality where such crimes are concerned that accounts for their conventional definition as wrongful independent of law: in such cases, the criminal law is, to a significant degree, simply a formally posited definition of what morality already articulates. by way of contrast, mala prohibita crimes are concerned with those occasions when the morality from which the criminal wrong is derived is considerably more ambiguous. the reason for such ambiguity lies in the highly abstract nature of certain moral objectives, of which perhaps the most pervasive example is the objective to make the world a safer place. how abstract moral objectives of this nature are particularised in the context of complex projects of social and economic coordination admits of enormous variety in matters of detail. for this reason, a number of different definitions of any derivative criminal wrong will do justice to the source morality. yet the principle of maximum certainty in the criminal law requires that a line be drawn somewhere: where exactly may be somewhat arbitrary or governed by local contingencies. because the line between what is and is not criminal therefore depends largely on what the law says, as opposed to being governed by fidelity to an underlying morality, what is prohibited remains ‘unknown’ until a definition is supplied by the criminal law.16 it is this fact that accounts for the conventional definition of mala prohibita crimes as wrong only because 15 for an excellent exploration of the nature of this distinction, see the trilogy of papers (special topic) published in dialogue: canadian philosophical review (2016) 55 (1), as follows: s dimock, ‘a trilogy of papers on the malum prohibitum-malum in se distinction in criminal law: introduction’ 1; s dimock, ‘the malum prohibitum-malum in se distinction and the wrongfulness constraint on criminalization’ 9; sp green, ‘the conceptual utility of malum prohibitum’ 33; c flanders, ‘public wrongs and public reason’ 45. see also simester and von hirsch, crimes, harms, and wrongs: on the principles of criminalisation (n 1) 24-29. 16 or the criminal law in conjunction with the civil law. the denning law journal 75 the law says so. such crimes are therefore prohibita to the extent their final formulation could legitimately have taken different forms. however, they are mala to the extent that they do justice to their underlying moral objective. so no crime can be mala by dint of prohibition alone.17 it is important to note that this article conceives of the difference between mala in se and mala prohibita as one of degree, rather than one of kind.18 this is because even those criminal wrongs conventionally seen as reflecting mala in se admit of some measure of reasonable discretion in the exact form they take. this may be due to reasonable differences in conceptions of the underlying morality or it can flow, as will be argued later in the article, from how the criminal law puts its legitimate political goals into effect.19 for example, whether only certain, or alternatively all, frauds in the inducement are constitutive of the wrong of rape, is a controversy within morality.20 when the criminal law settles on which frauds in the inducement to include and exclude, and for what reasons (moral, political or a mixture of both),21 it is making a choice that accounts for a measure of prohibita where the crime of rape is concerned. what prohibita therefore means in the context of criminalisation is discretion as to form when, in light of the relevant source morality, a crime can take more than one legitimate form.22 17 as simester and von hirsch point out, the state cannot make something wrong simply by declaring it so: see simester and von hirsch, crimes, harms, and wrongs: on the principles of criminalisation (n 1) 24-27. 18 this insight is taken from green (n 15). 19 duff makes a similar point: see his punishment, communication and community (oup 2001) 64-67. 20 for a conception of rape that conceives of the wrong as a violation of selfpossession, as opposed to sexual autonomy, and the implications of this conception for the criminalisation of frauds in the inducement, see j rubenfeld, ‘the riddle of rape-by-deception and the myth of sexual autonomy’ (2013) 122 yale law journal 1372. 21 see the difference in opinion between jonathan herring and hyman gross played out in the following articles: herring, ‘mistaken sex’ [2005] crim lr 511, gross, ‘rape, moralism and human rights’ [2007] crim lr 220 and herring, ‘human rights and rape: a reply to hyman gross’ (2007) crim lr 228. 22 it should be noted that, despite the fact that such lines can be reasonably drawn in different places where such crimes are concerned, their source morality means some places where those lines are drawn are, as douglas husak points out, indefensible: see his overcriminalization: the limits of the criminal law (oup 2008) 110. see also dimock ‘contractarian criminal law theory and mala prohibita offences’ in duff, l farmer, se marshall, m renzo and v tadros (eds), criminalisation: the political morality of the criminal law (oup 2014) public goods and criminalisation 76 in light of the distinction between mala in se and mala prohibita crimes as outlined above, the explanation of how the pga identifies criminal wrongs can begin with those crimes that most saliently embody a concern with public goods, those that, as duff expresses it, “wrong or harm the polity as a whole, rather than a distinct identifiable individual. these include such serious crimes against collective, shared goods as treason and attempting to pervert the course of justice; tax evasion [and] ‘public nuisance’”.23 these crimes, which shall be termed public crimes for short, can be found at various points along the spectrum between mala in se and mala prohibita. according to the pga, they are united by the fact that the criminal prohibition seeks to maintain one or more public goods, for example the environment, the public purse or health and safety. for those public crimes closer to the mala prohibita end of the spectrum, wrongfulness is governed predominantly by the fact that the individual and/or systematic commission of the crime reduces the availability of the particular form(s) of valuable autonomy provided, directly or indirectly, by the public good(s) concerned. such crimes are mala in se to the extent that they constitute reasonable and carefully considered attempts to target behaviour that directly or indirectly, in isolation or cumulatively, sets back the provision of the valuable autonomy. but they are largely prohibita because the manner in which autonomy is protected in particular contexts, for example food, drug or road safety, admits of much discretion. this category accounts for those crimes of a regulatory nature, often strict and met with milder punishment, that are designed, in a fairly instrumental way, to maintain autonomy in given contexts, such as health and safety and the transport system. however, public goods are not exclusively concerned with the provision of autonomy per se: rather, they articulate and protect environments where the exercise of autonomy has moral value and significance. it is for this reason that they are characterised by a number of moral principles. for example, all public goods associated with the public good of the rule of law, such as the public purse and the systems of civil and criminal justice, are characterised by the notions of fairness, objectivity, honesty and integrity. in turn, for those public crimes closer to the mala in se end of the spectrum, the wrongfulness of the behaviour flows from the fact it violates the moral principles that characterise the 151, 175: ‘… not all ways of providing determinate content to mala in se wrongs are acceptable.’ 23 duff, answering for crime: responsibility and liability in the criminal law (hart publishing 2007) 140. duff is expressing this notion within the context of what it means for a wrong to be public, for the sake of his ‘public wrong’ account of criminalisation: see (n 52). the denning law journal 77 public good and make the existence of the public good valuable. alternatively, such mala in se crimes violate the moral principles that assist in the provision of the valuable autonomy characteristic of the public good. let us take, for example, public crimes that target tax evasion. such crimes are designed to sustain the public purse. of course, these are mala prohibita to the extent that their reach is dependent on the contingencies of how the targets, and levels, of taxation are decided within any given jurisdiction. but the public purse is more than simply the methodological notion of money gathered through taxes: it is characterised by a number of moral principles. these include fairness in distribution and the presence of honesty and integrity in those public officials tasked with gathering and spending the sums raised through taxation; the latter requires that tax is gathered for, and spent on, the business of government, not syphoned away for personal advantage. offences that are designed to maintain the public purse will therefore be mala in se to the extent that they constitute violations of these moral principles. for example, when the burden of taxation is justly distributed, tax evasion is rightly characterised as wrongful, as a form of cheating and free riding. in the same vein, some instances of the electoral offence of personation, that is voting as another person, violate the democratic principle of ‘one-person, one vote’, which is itself derived from the principle of political equality.24 thus the wrongfulness of (some forms of) personation is constituted by the violation of important values that constitute the public good of a democratic polity. however, as will be defended in greater detail in the next subsection, what completes the case for the criminalisation of these more mala in se public crimes, as well as their more mala prohibita cousins, is the damaging impact their systematic commission would have on the various forms of valuable autonomy provided by the relevant public good. this impact can take different forms. where positive public goods are concerned, it may take the form of a reduction in the means by which the state creates a supportive environment for valuable autonomy. for example, though a single instance of tax evasion may have no practical effect on the public purse in its capacity as a framing good, systematic tax evasion does. this is because the consequent loss of funds to the state will reduce its capacity to provide numerous public goods, such as the public 24 for a defence of this argument, see j slater and b watt, ‘in defence of democracy: the criminalization of impersonation’ (2015) 14(2) election law journal: rules, politics, and policy 165. public goods and criminalisation 78 peace and secondary education.25 alternatively, systematic commission of the offence may undermine the overarching benefits of a public good, thereby eroding the valuable nature of the autonomy it provides. to illustrate, though a single instance of personation may not alter an election result, systematic personation will eventually erode the provision of the valuable autonomy characteristic of a democratic polity. it will do so principally by undermining the overarching benefits of a democratic polity, such as the confidence of the electorate in the electoral system and the responsiveness of political parties, and government, to the wishes of the people.26 on the other hand, the relationship between public goods and mala in se crimes such as murder, theft and rape, which are wrongs against individuals as opposed to the public, seems less obvious. the pga’s concern with public goods suggests the individual does not feature in the pga’s account of criminalisation, and, consequently, that it would struggle to give a satisfactory account of such crimes. the nature of this (potential) flaw is outlined by duff: if we are going to say that such actions as murder, rape and theft should be criminal because they injure or threaten some common good, are we not then ignoring, and thus denigrating, the wrong done to the individual victims of such actions-a wrong which surely should be central to the law’s concerns?27 25 green points out that it is in the nature of tax evasion that it is ’significant only in aggregate’: see his ‘what is wrong with tax evasion?’ (2009) houston business and tax law journal 220, 226. 26 see slater and watt, ‘in defence of democracy: the criminalisation of impersonation’ (n 24). 27 marshall and duff, ‘criminalization and sharing wrongs’ (1998) 11 canadian journal of law and jurisprudence 7, 12. similarly in answering for crime (n 23) 141, duff states: “if we … argue that such mala in se as murder and rape count as public wrongs only because they too have a harmful or wrongful impact on ‘the public’, as well as on their individual victims, we are likely to distort the wrongfulness that makes them criminalisable. even if a rapist takes unfair advantage over the law-abiding (which is at best arguable), or creates ‘social volatility’ or undermines trust, that is not what is central to the criminal wrongfulness of his action; what he is properly convicted and punished for is the wrong done to his victim.” this point is a common theme in duff’s work: see, for example, punishment communication and responsibility (n 19) 60 and public and private wrongs (again with marshall) in j chalmers, f leverick and farmer (eds) essays in criminal law in honour of sir gerald gordon (vol 5 edinburgh studies in law, edinburgh university press 2010) 71. the denning law journal 79 as duff explains further, the problem with accounts that exhibit an exclusive concern with the public, or common, good, is that they …: … seem to subordinate the individual victim (a concern for their good, or for the wrong done to them) to some supposedly larger social good. the offender's conduct is counted as criminal, and he is to be punished, for the sake of that larger good: to which it is appropriate to object that his conduct should be criminalised because of, and he should be punished for, the wrong he does to the individual victim. we do not criminalise rape, and punish rapists, because rape causes social volatility; or because the rapist takes an unfair advantage over his law-abiding fellow citizens: but because of the nature of the wrong that the rapist does to his victims.28 duff is making two closely related claims here. first, he is suggesting that theories of criminalisation that justify the criminalisation of wrongs against individuals purely in terms of some benefit to the public, for example because they suppress social volatility, fall into error by ignoring the wrong done to the individual.29 second, he is suggesting a theory’s account of such crimes should be reacting, in some fairly fine-grained way, to the moral mala committed against the victim. the position of this article is that the first claim is self-evidently true: some conception of what happens to the individual must play its part in the nature and justification of such crimes. in this section, the article will therefore demonstrate how the pga does not suffer from this flaw. it will also address the second claim, by demonstrating how the pga is sufficiently fine grained to respond appropriately to the moral mala experienced by the individual. in the next section, which addresses desideratum 2, it will then defend the claim that this is what the criminal law should be doing, to the extent that a distinctive, that is to say 28 marshall and duff, ‘criminalization and sharing wrongs’ ibid. 29 duff’s own ‘public wrong’ account of criminalisation does not fall foul of this error. this is because he fuses concern with the moral wrong done to the individual with the quality of publicness, by arguing that the moral values that define the behaviour as wrong where the individual is concerned are, simultaneously, part of the fabric of shared values that define the political community: see his ‘criminalization and sharing wrongs’ (n 27) 20, where duff states: “ … wrongs against individual citizens can be understood as shared wrongs, as wrongs against the whole community, insofar as the individual goods which are attacked are goods in terms of which the community identifies and understands itself.” public goods and criminalisation 80 censorious, account of the criminal law is not possible without so responding. with regard to the first claim, the reason why the maintenance of public goods does not ignore the individual in the name of a distinct social goal is because creating and/or maintaining a public good frequently involves directly protecting the capacity of individual citizens to enjoy the valuable autonomy of various individual and shared goods. the public goods of the public peace and the property regime illustrate this. the public peace is a public good because it assists all members of society in partaking in a wide range of individual and shared goods, by freeing them of physical interference and violence, and one member of society benefiting from the public peace does not diminish its availability to other members.30 however, it can only be provided by systematically protecting individual members of society from physical and psychic assault; in other words, it is through the protection of the individual goods of bodily and psychic integrity, in the form of fatal and non-fatal offences against the person, that the public good is created. the core of the criminal wrong therefore consists of the invasion of the valuable autonomy of the individual. the property regime is a public good because it provides, for all citizens, “… opportunities for personal and social advancement through reliable coordinated economic activity, and for other forms of welfare and personal realisation that only the peaceful ownership and possession of property can deliver.”31 the foundation of peaceful ownership and possession of property, along with its resulting benefits, is individual dominium over assets, with the nature of that individual dominium, and how it can be shared and exchanged, largely defined by the civil law. in turn, for the public good of the property regime to materialise, that system of individual dominium must also be protected. this is why the crime of theft, along with other property offences, target all those who seek to ignore or violate the rules of individual ownership, possession and transfer. the above two examples reveal that, where certain public goods are concerned, there is a symbiotic relationship between, on the one hand, the systematic protection of the valuable autonomy of individuals and, on the other, the maintenance of the relevant public good. this symbiosis means that, where wrongs against individuals are concerned, the pga conceives of the criminal law as possessing what blackstone termed a ‘double view’: an interest in both protecting the individual’s valuable autonomy 30 horder, ‘bribery as a form of criminal wrongdoing’ (n 1) 44. 31 see simester and von hirsch crimes, harms, and wrongs: on the principles of criminalisation (n 1) 42. the denning law journal 81 and protecting the public.32 it is this ‘double view’ that means the pga does not ignore the individual in the name of a distinct public good, because concern with the valuable autonomy of the individual is the fundamental building block of the public good. the pga then simply demands that that protection be offered systematically to all, such that a distinct, non-rivalrous and non-excludable good is created. as for the nature of the wrong done to the individual, does the pga have the capacity to articulate the moral mala experienced by the individual? the answer is yes and flows, as with public crimes, from the fact that public goods are characterised by a number of moral principles that mean the autonomy they foster and protect is valuable in nature. for example, the public peace is more than the existence of freedom from physical and psychic attack. it concerned with the human dignity of each citizen and the public’s conception of their security and social environment. this concern with human dignity means it is interested in marking the difference between, say, murder, a deliberate attack, and gross negligent manslaughter, a morally culpable failure to meet a standard of conduct. it also accounts, it is suggested, for offences against the person defined in part by racial or religious animus. these various wrongs threaten the public peace in different ways: proclaiming them as crimes, and prosecuting in their name, gives the public peace its value, its moral character.33 this moral articulacy is also illustrated by sexual offences. there is a public good in the form of sexual integrity, a general sphere of valuable autonomy made up of the universal availability of various forms of human flourishing constituted by private and shared goods involving sex.34 craig has listed these various forms of flourishing as follows: 32 commentaries on the laws of england (clarendon press 1769) book iv, ch 1, 7: “upon the whole we may observe that in taking cognizance of all wrongs, or unlawful acts, the law has a double view: viz. not only to redress the party injured … but also to secure to the public the benefit of society, by preventing or punishing every breach and violation of those laws, which the sovereign power has thought proper to establish for the government and tranquillity of the whole.” see also book iv, ch 1, 5: “ … every public offence is also a private wrong, and somewhat more; it affects the individual, and it likewise affects the community.” 33 where racial or religious animus is concerned, see, for example, the crime and disorder act 1998, sections 29 and 32. fair labelling is therefore not just a concern for the accused: because of the interest of all citizens in the relevant public good, it is a concern for all citizens. 34 the article will not address whether and, if so, in what ways, a good is dependent on existing social forms and, additionally, grounded in independent criteria of value: the aim here is more limited, which is simply to demonstrate how the notion of public goods has moral granularity. public goods and criminalisation 82 … not only … freedom from violations of sexual integrity but also promoting and protecting the ‘conditions for’ sexual fulfilment, sexual diversity, sexual literacy, the safety necessary for sexual exploration, the freedom to say ‘yes,’ and the capacity to gain sexual benefit (whether that benefit be physical, emotional, financial or social).35 these forms of human flourishing are clearly dependent on autonomy per se. but the various private and shared goods of sex listed above are also morally and socially meaningful, in other words valuable, and sexual offences target that value in many different ways. for example, if consensual sex is joyful or recreational or an expression of deep love and commitment, or all three at the same time, the horror and exploitative nature of rape negates these qualities in a particular way. this is worthy of discrete articulation by a conception of the criminal law that seeks to foster the public good of sexual integrity. finally, the pga has significant explanatory and evaluative power where the concept of criminal recklessness is concerned. though recklessness has a role as a determinant of culpability, the requirement that the risk taken is unjustified means it is also concerned with the boundary between criminal and non-criminal behaviour. whether a risk is unjustified is a complex socio-moral, that is to say normative, judgment. it requires balancing the social utility of taking the risk against the gravity of the harm it might cause, as well as its likelihood to cause that harm, with a view to establishing whether the risk is worth taking. in other words, whether an activity is reckless depends on how that conclusion integrates with the promotion of valuable autonomy generally, the net gain in valuable autonomy from the toleration of risk. because the raison d’être of the pga is the promotion valuable autonomy, rather than autonomy per se, it provides a normative context that engages directly with how those risks are assessed and tolerated. 3.2 the justificatory strand of d1 the justificatory strand of d1 is concerned with the question why the decision to criminalise behaviour is a good thing. the pga sees this justification in the criminal law’s impact on practical reason, with the result that citizens desist or are deterred from committing criminal wrongs, with a view to creating and/or maintaining public goods. this 35 e craig, troubling sex: towards a legal theory of sexual integrity (ubc press 2012) 136. the denning law journal 83 justification of the criminal law is derived from raz’s conception of the purpose, and legitimacy, of the state. this purpose is to create, through law and other measures, the social conditions under which citizens can lead autonomous lives, through the provision of a sufficient range of individual and shared goods. the pga’s theory of criminalisation is therefore embedded in, rather than independent of, a political theory of the state.36 the reasons for criminalisation are fundamentally political in nature. the implications of this approach for the definitions of criminal wrongs and the rules of attribution will be examined in section 5, when this article explores the implications of the pga’s political approach to the criminal law. this section will address why such an approach justifies the criminal law, as the pga sees it. the support for autonomy within this conception of the state’s role is perfectionist in nature: this means that personal autonomy is worthy of state support only to the extent that it is exercised in favour of valuable options.37 raz explains: …the autonomy principle is a perfectionist principle. autonomous life is valuable only if it is spent in the pursuit of acceptable and valuable projects and relationships. the autonomy principle permits and even requires governments to create morally valuable opportunities …38 36 for a discussion of the whether the starting points of a theory of criminalisation should be political or moral, see duff et al, criminalization: the political morality of the criminal law (n 22) 17-26. 37 raz, the morality of freedom (n 2) ch 15, ‘freedom and autonomy’. for a critical analysis of raz’s perfectionist liberalism, see p neal, ‘perfectionism with a liberal face? nervous liberals and raz's political theory’ (1994) 20 social theory and practice 25. 38 raz, the morality of freedom (n 2) 417; see also 133, where raz states: “… it is the goal of all political action to enable individuals to pursue valid conceptions of the good …” raz also believes that the state is under a duty to discourage or eliminate empty or evil options, as these quotes go on to state. according to raz, there are no barriers, in principle, preventing the state from targeting worthless options through coercion because, according to raz, there is no value in autonomy per se (418). however, he acknowledges both pragmatic and contingent objections. the pragmatic objections consist of, first, the possibility of error, by government, as to what is valuable (427) and, second, the fact that the pursuit of too many perfectionist policies may lead to civil strife (429). the contingent objection is that coercion will have a collateral effect on the exercise of valuable autonomy (418-419). contra raz, this article believes that the coercive effect of the criminal law means it should be confined to promoting, and protecting, valuable autonomy, as matter of principle. autonomy per se has sufficient value such that the criminal law cannot be used to suppress valueless public goods and criminalisation 84 additionally, and equally importantly, the state’s support of autonomy requires it to provide a wide range of individual and shared goods: it is only in the face of a sufficient range of valuable options that the pursuit of any given valuable option is freely chosen, that is to say autonomous.39 as explained above, the provision of public goods is fundamental to the state fulfilling this role because, as raz states: “public goods lie at the foundation of most options.”40 and so, when the state provides a wide range of public goods, this ensures that all citizens have an adequate range of individual and shared goods to choose from, which also ensures that the goods are chosen freely. public goods are therefore fundamental to the ability of citizens to lead autonomous lives. according to the pga, the criminal law is necessary for the creation and maintenance of public goods. this is because, echoing the concept of public goods in economic theory, the creation of public goods cannot be left exclusively to the ‘market’ of enforcement by aggrieved individuals pursuing private law remedies. such enforcement would not occur systematically enough to create the system of deterrence necessary to bring public goods into existence. market failure will result for a number of reasons: one is that victims often lack the resources required to mount a prosecution; another is that many crimes do not produce individual victims in any event. accordingly, public goods need the systematic support from the state, in its capacity as police authority and prosecutor, to materialise. of course, according such a purpose to the criminal law is subject to an efficacy condition, that the criminal law will, indeed, be effective as a deterrent. however, just because autonomous lives cannot exist without the criminal law does not address a more fundamental question, which is whether the state is justified in using the form of regulation known as the criminal law, as the pga conceives it, to achieve this objective? the autonomy, though the state is under no duty to provide it, or protect it, through the criminal law, or other measures. 39 raz, the morality of freedom (n 2) 204, 408, 410, 417-18, 425. see also his ethics in the public domain (n 3) 121, where he states: “one is autonomous only if one lives in an environment rich with possibilities.” 40 raz, ethics in the public domain (n 3) 121. see also the morality of freedom (n 2) 207: “the provision of many collective goods is constitutive of the very possibility of autonomy …”. the denning law journal 85 answer is yes, because such a theory engages directly with, first, the state administered and, second, the coercive nature of the criminal law.41 with regard to the fact that the criminal law is a state created and administered practice, the criminal law is a resource intensive enterprise.42 the use of public resources requires a justification that speaks to the polity as a whole: the vindication of moral values, though a reason to criminalise, cannot justify, by itself, the expense and logistical efforts required to put the criminal law into effect. the pga offers such a reason: the creation of valuable autonomy for all, via the means of public goods. as for the question of coercion, the criminal law’s transgression generates the risk of prosecution and punishment, including the possibility of incarceration.43 these risks create prudential, content independent reasons to comply that, on occasion, override the preferences of the individual concerned, and so are coercive in nature. for some, the bloodyminded and recalcitrant, such prudential reasons may be the only reasons for which they comply.44 autonomy has sufficient value, even when exercised in the name of valueless options, that coercion requires justification. furthermore, the impact on valuable autonomy of a conviction, for example its impact on reputation and employability, means the criminal law must, overall, have a positive effect on people’s lives in order to be justified.45 according to the pga, it is the maintenance of public goods, and the consequential beneficial impact such maintenance has on the valuable autonomy of all citizens, so that they may lead 41 simester and von hirsch make similar point: see crimes, harms, and wrongs (n 1) 118, repeated in ‘on the legitimate objectives of criminalisation’ (2016) criminal law and philosophy 367, 376. 42 as noted by matravers, ‘duff on hard treatment’ in r cruft, mh kramer and mr reiff, crime, punishment and responsibility: the jurisprudence of antony duff (oup 2011) 68, 81. 43 it should be noted that just because a theorist acknowledges that the criminal law is coercive does not mean that achieving that coercive effect need feature in the theorist’s justification for the criminal law. for example, michael moore acknowledges that the criminal law is coercive but does not see preventing wrongdoing by coercion as justifying its existence. rather, he argues its raison d’être is the imposition of punishment on those who deserve it: culpable moral wrongdoers; see moore, ‘liberty’s constraints on what should be made criminal’ in duff et al (eds), criminalisation: the political morality of the criminal law (n 22) 182, 184. 44 the expression “bloody minded and recalcitrant” is taken from scott anderson, ‘coercion’ in the stanford encyclopedia of philosophy <https://plato.stanford.edu/entries/coercion/> accessed july 2017. 45 as noted by simester and von hirsch in crimes, harms, and wrongs (n 1) 118 and ‘on the legitimate objectives of criminalisation’ (n 41) 376. public goods and criminalisation 86 autonomous lives, that supplies a justification that engages directly with these facts. it is also worth remembering the overarching benefits of public goods noted under section 2, because such benefits are a key reason why public goods are valuable and thereby worthy of protection. in particular, these overarching benefits give rise to what raz has termed the quality of dual harmony, whereby protecting the valuable autonomy of the individual creates the common good, and, in return, the common good, brings additional benefits to the individual.46 raz explains dual harmony as follows: …to the extent that the rightholder's interest is given extra weight for reasons of the common good, these reasons are not altogether detachable from considerations of the rightholder's own interest. the common good is the good of all, including the good of the rightholder. by serving the common good, the right also serves the interest of the rightholder in that common good. there is here what i have called elsewhere a dual harmony between the interest of the rightholder and the interest of other people which is served by his right. the right protects the common good by protecting his interest, and it protects his interest by protecting the common good.47 an example of dual harmony was touched upon in section 2, when the overarching benefits of the public good of the property regime were described. the systematic protection of the individual and shared goods of ownership and contract creates the public good of the property regime, the existence of which, not least through its capacity for wealth creation, benefits the individual in return. it is this dual harmony of public goods that is also an integral part of justifying the expensive, autonomy impacting form of coercion known as the criminal law. 4. the pga and desideratum 2 desideratum 2 (‘d2’) means d1’s evaluative framework includes a commitment to a coherent and defensible account of the criminal law as morally censorious.48 at the heart of d2 is the notion that the criminal law 46 for an explanation of dual harmony, see raz’s ethics in the public domain (n 3) 53-55. 47 raz, ‘rights and politics’ (n 5) 39. 48 of course, if a theorist rejects a distinct account of the criminal law, d2 is an irrelevancy. the denning law journal 87 condemns the behaviour it criminalises: a theory’s success in satisfying this desideratum will therefore depend on the coherence and defensibility of the condemnation it articulates. it also means the theory must not only condemn the wrong but also the wrongdoer: it should therefore have some conception of the moral culpability of those convicted of criminal wrongs. this means it should give an account of attribution. attribution is concerned not with wrongdoing and justification, but rather with whether and how people are held to account for their (all things considered) wrongdoing.49 amongst other things, it addresses the nature and reach of excusatory and exempting defences such as loss of control and insanity.50 a conception of the criminal law as condemning both wrong and wrongdoer offers a distinctive account of such law in two ways.51 first, it seeks to distinguish the criminal law from those forms of legal regulation that are not censorious in nature, for example those associated with corrective justice, such as tort, or distributive justice, such as taxation. second, and more crucially for the purposes of this article, it may be contrasted with non-distinctive accounts of the criminal law itself, which lack the element of moral censure. the difference between distinctive accounts and non-distinctive ones is one of degree. at one end of the spectrum are purely distinctive accounts, which propose no other goal for the criminal law than the moral 49 john gardner describes these elements of the criminal law as addressing “whether and how we should count what people have done when we are judging them.” gardner, ‘criminal law and the uses of theory: a reply to laing’ (1994) 14 ojls 217, 220. see also duff, ‘harms and wrongs’ (2001) 5 buffalo criminal law review 13, 19. 50 thus, a theory of criminalisation embraces all those elements that govern the possibility, and nature, of conviction. this article agrees with simester and von hirsch that the grounds of criminalisation need not perfectly match those of punishment: see crimes, harms, and wrongs: on the principles of criminalisation (n 1) 8. see also jr edwards and simester, ‘prevention with a moral voice’ in a du bois pedain and u neuman (eds) liberal criminal law theory: essays for andreas von hirsch (hart publishing 2016) 43, 47: “there is no reason to think that the legitimate aims of criminalisation and punishment must be identical.” 51 for a summary of the nature of a distinctive account of the criminal law, see m matravers, ‘political neutrality and punishment’ (2013) 7 criminal law and philosophy 217, 219-223. see also a cornford ‘rethinking the wrongness constraint on criminalisation’ (2017) law and philosophy 1, 2-3 and p pettit, ‘criminalization in republican theory’ in duff, farmer, marshall, renzo and tadros (eds), criminalization: the political morality of the criminal law (n 22) 132, 135. public goods and criminalisation 88 condemnation of those who commit crimes.52 such theories reject any deterrent and preventative role for the criminal law.53 at the other end of the spectrum, purely non-distinctive accounts reject concern with moral condemnation. purely non-distinctive accounts are characterised by two aspirations: first, to conceive of the criminal wrong in as morally parsimonious fashion as possible, for example that behaviour is criminally wrongful simply because it is harmful or autonomy reducing; second, to see the criminal law is nothing more than a regulatory tool designed to reduce offending through the provision of prudential reasons to comply, in the form of fear of conviction and punishment.54 and some accounts find 52 the legal moralism of moore and duff are examples of purely distinctive accounts. for moore, the purpose of the criminal law is to identify those who should receive ‘deserved’ punishment for moral wrongdoing: see his placing blame: a general theory of the criminal law (oup 1997) and ‘liberty’s constraints’ (n 43). for duff, the criminal law should be exclusively concerned with the communication of censure, both to the public at large and the criminal convicted, when public, as opposed to private, wrongs have been committed: “[w]e should not see the criminal law as prohibiting the conduct that it defines as mala in se—as offering the citizens content-independent reasons to refrain from such conduct. we should see it instead as declaring such conduct to constitute a public wrong properly condemned by the community, for which the agent is answerable to the community through a criminal process.” see his punishment, communication and community (oup 2001) 64. this approach is a central pillar of duff’s conception of the criminal law: see, e.g., answering for crime (n 27) 84-93 and ‘responsibility, citizenship, and criminal law’ in philosophical foundations of criminal law (n 14) 125, 129. for an excellent summary of duff’s philosophy, see m thorburn, ‘calling antony duff to account’ (2015) criminal law and philosophy 737. 53 duff’s rejection of deterrence flows from his commitment to the notion that the criminal law should display respect for persons, with the result that the provision of content independent reasons (the fear of sanction and punishment) is not a legitimate feature of the criminal law. matravers has stated that duff “… recoils at the slightest hint of deterrence”: see ‘duff on hard treatment’ in the jurisprudence of antony duff (n 42) 81. for an analysis of duff’s approach, see matravers, justice and punishment: the rationale of coercion (oup 2000) ch 9, ‘the moral community, justified coercion, and punishment’. see also thorburn, ibid 746. 54 a purely non-distinctive account is that of barbara wootton: see her crime and the criminal law: reflections of a magistrate and social scientist (2nd revised edn, steven & sons 1981). for a critique, see hla hart ‘review: crime and the criminal law’ (1965) 74 yale law journal 1325. see also matravers and arina cocoru ‘revisiting the hart/wootton debate on responsibility’ in christopher pullman (ed), hart on responsibility (palgrave macmillan 2014). the denning law journal 89 themselves somewhere in between these two extremes, mixing distinctive and non-distinctive elements.55 according to this article, the aspiration for a pure account is misplaced. contra purely distinctive accounts, the notion that the criminal law has no preventative role, does not seek a forward-looking goal of reducing offending by impacting on the practical reason of potential offenders, ignores the fact that, as we saw in the previous section, the coercive power of the state must do more than merely seek the vindication of moral values: it must impact on the lives of citizens in a positive way. on the other hand, purely non-distinctive accounts fail to engage with the fact that the criminal law is concerned with the preservation of valuable autonomy, and therefore should speak a moral language of some kind; that, amongst the various functions of law, a morally-loaded regulatory tool has its place.56 in demonstrating how the pga satisfies d2, this section will therefore show how it combines distinctive and nondistinctive elements. in order to offer a defensible account of d2, the distinctive element of a theory of criminalization must have two components: first, it must possess a morally fine-grained approach to criminal wrongs; second, it must articulate a condemnation of those wrongs. in order to understand why a defensible account of d2 requires the first component, it is necessary to examine, and more importantly reject, a theory of criminalisation that eschews a fine-grained approach to criminal wrongs, the public law account of malcolm thorburn (the ‘pla’).57 the pla’s justification of criminalisation embodies a constitutional conception of the state’s role with respect to the use of coercive and punitive force. such an approach begins with a constitutional conception of the state, and then finds a role for the criminal law within that conception.58 it sees the state’s fundamental responsibility as securing 55 as simester and von hirsch argue, where criminalisation is concerned … “… [t]he truth is, we think, somewhere in between.” (n 1) 4. see also t hornle, ‘theories of criminalization’ (2016) criminal law and philosophy 301, 302. 56 the expression ‘a morally-loaded regulatory tool’ is taken from simester and von hirsch crimes, harms, and wrongs: on the principles of criminalisation (n 1) 11. 57 set out in various works, including ‘punishment and public authority’ in p asp, a dubois-pedain and m ulvang (eds), criminal law and the authority of the state (bloomsbury 2017) 1; ‘constitutionalism and the limits of the criminal law’ in duff, farmer, marshall, renzo, and tadros (eds), the structures of criminal law (oup 2011) 85; and ‘criminal law as public law’ in duff and s green (eds), philosophical foundations of criminal law (n 14) 21. 58 ‘constitutionalism and the limits of the criminal law’ ibid 87-88. his argument is noted by ashworth and l zedner in ‘punishment paradigms and the public goods and criminalisation 90 each citizen’s equal freedom or autonomy, a responsibility that grounds its legitimacy.59 thorburn explains: unlike any private actor, the state claims to speak in the name of everyone’s claim of freedom equally. for this reason, the state is the unique instrumentality through which we may collectively ensure our freedom as independence. it speaks for us all together in setting down general laws that define the scope of everyone’s freedom in the same way, but it does not speak for anyone in particular—and so, in that way, the state’s actions are not to be confused with the partisan choices of some particular individuals. … in short, we act together with others through the instrumentality of the state in order to secure for all of us the conditions of freedom as independence.60 in turn, the criminal law addresses violations of such individual freedom by others, that is to say it is concerned with identifying those who deliberately impose their preferences on others, thereby suppressing their freedom: the ground of the liberal constitutional state’s legitimacy is the simple fact that it—and it alone—can provide the conditions of freedom for all. on this account, the role of the criminal law is to identify when individuals are attempting to supplant the law’s rules with their own preferred arrangements and to regulate the use of state power to resist such attempts.61 as such, the criminal law is conceived as maintaining, through its processes of condemnation and punishment, the equal freedom of all citizens. it is the characteristic of being a violation of the constitutional commitment to equal freedom that justifies the criminalisation of behaviour. again, thorburn explains: … the criminal law’s concern is with someone’s efforts to undermine the whole system of equal freedom itself. … criminal wrongs are those that demonstrate a willingness on the part of the role of the preventative state’ in simester, du bois pedain and neuman (eds) liberal criminal law theory: essays for andreas von hirsch (n 50) 3, 7-8. 59 thorburn also refers to this equal freedom as ‘jurisdiction’: ‘criminal law as public law’ (n 57) especially 31. 60 thorburn, ‘constitutionalism and the limits of the criminal law’ (n 57) 98. 61 ‘constitutionalism and the limits of the criminal law’ (n 57) 88. the denning law journal 91 offender to displace the legal rules themselves—they are concerned not merely with an injury to some specific rights claim, but to the very idea of living together under law rather than subject to the wishes of specific individuals.62 the above quotes reveal that the pla, like the pga, offers a theory of the criminal law embedded in, and thus justified by, a political theory of the state.63 as a justification for the use of the state’s coercive power, there is no denying that the pla’s political approach has much to offer the impartial liberal. this is because its conception of the criminal wrong as the violation of equal freedom is embedded in what those of a rawlsian inclination would consider a political value, rather than a comprehensive doctrine. this is then married to a rawlsian justification of the criminal law’s (coercive) power, the concrete realisation of that political value. at the same time, thorburn claims to offer a distinctive account of the criminal law, and thereby respect d2: thorburn states: “criminal justice is not just a policy instrument for sharing the costs of bringing about a social good; rather it is an instrument for identifying wrongdoers and censuring them as such.”64 such an approach is distinctive to the extent that the failure to treat your fellow citizen as free and equal can attract a moral condemnation of a certain kind. as pointed out by matravers: “to violate the demands of freedom and equality is, for the liberal, to do a substantive moral as well as political wrong.”65 however, the violation of equality is too generic a conception of the criminal wrong to do justice to the various mala in se that populate the criminal calendar; in order to understand why, it is helpful again to quote thorburn: … what makes all […] conduct wrongful for the purposes of the criminal law is that the offender has intentionally undermined the possibility of interacting with others as free choosers who are entitled to live under the terms of interaction set out by the law. he has done so by treating that person as a mere object who may 62 ‘constitutionalism and the limits of the criminal law" (n 57) 100. 63 thorburn, ‘criminal law as public law’ (n 57) 24: “… i propose a different way of justifying the practices of the criminal justice system—a position i call a ‘public law account’ of criminal justice. i call it a ‘public law’ account because it conceives of the operations of the criminal justice system, insofar as they are legitimate, as concerned with the basic question of public law: when the use of state power is legitimate.” 64 thorburn, ‘constitutionalism and the limits of the criminal law’ (n 57) 97. 65 matravers, ‘political neutrality and punishment’ (n 51) 221. public goods and criminalisation 92 be dealt with in whatever way he wishes. the wrong of rape—and of murder, assault, etc—is precisely the objectification of one person by another, but that objectification is of concern to the state because it is the state’s job to ensure the survival of the system that makes it possible for us all to interact on terms that preserve the status of us all as free and equal moral agents.66 it is the fact that thorburn equates the wrongs of murder, assault and rape that is precisely the weakness of his theory. though these criminal wrongs share the moral failure articulated by thorburn (and matravers), their moral ‘wrongness’ is far richer and more varied than the mere violation of equality: murder entails the complete extinction of another person, rape involves a demeaning and arguably horrific violation of sexual integrity,67 assault is a violation of bodily integrity. other criminal wrongs implicate further (in some cases central) human interests, for instance burglary is an invasion of the legally constructed but also morally meaningful interests in property and privacy. because the pla is blind to these differences, it has a flat and hence distorted sense of wrong done to the victim where these crimes are concerned. it is now appropriate to recall duff’s injunction above, that where crimes against individuals are concerned, “… what is central to the criminal wrongfulness of his action … is the wrong done to his victim.”68 the pla, with its exclusive concern with equality, is insufficiently fine-grained to acknowledge that wrongfulness properly. it is worth noting that legal moralism, in all its forms, has no difficulty satisfying d2. this is because the fundamental rationale of all forms of legal moralism is the notion that a core, though not necessarily exclusive, aim of the criminal law should be the condemnation of criminal wrongs in their capacity as moral wrongs. the differences between the different forms of moralism concern which parts of morality they see as relevant to the criminalisation decision and the principles that limit the reach of their moralism.69 but what unites them is highly nuanced and developed concern with the moral nature of criminal wrongs, especially against individuals, and commitment to the notion that a deeper understanding of those moral wrongs represents a deeper understanding of how, and why, the criminal law condemns them. thorburn might respond that this 66 thorburn, ‘constitutionalism and the limits of the criminal law’ (n 57) 102. 67 stanton-ife, ‘horrific crime’ in duff (eds), the boundaries of the criminal law (oup 2010) 138. 68 answering for crime (n 23). 69 where those limits are concerned, for gardner, it is harm; for duff, it is the quality of publicness; finally, for moore, it is certain restraining principles: see their works referred in this article. the denning law journal 93 concern with moral wrongs is a weakness of legal moralism, not a strength. my concern here is not whether he is wrong or right, but simply that anyone who takes d2 seriously cannot support the pla, given its flat and monochrome conception of criminal wrongs. the pga, however, shares legal moralism’s concern with the finegrained moral wrong against the individual. this articulacy flows from the fact that, as demonstrated under d1, all public goods have moral character, a moral character derived from their concern with the preservation of valuable autonomy. this concern enables a fine-grained approach to such male in se wrongs as murder and rape. it was also demonstrated under d1 how this concern with valuable autonomy articulates the moral wrongs that occur in the context of public crimes and explains, in a nuanced fashion, the criminal law’s concern with unjustified risk where its conception of recklessness is concerned. as such, the pga, unlike the pla, is sufficiently fine grained to articulate the moral nature of the various wrongs that populate the criminal calendar. however, does the notion of maintaining a public good commit the pga to a theory of the criminal law as a pure deterrent, offering only content independent (prudential) reasons, in the form of the fear of conviction and punishment, to observe its prohibitions? if so, despite often targeting moral wrongs as explained under d1, the pga will still fail d2, as there will be no element of condemnation, simply the brute fact of coercion. this would mean the pga would not articulate a condemnation of the moral wrongs it criminalises. the pga does not adopt such a reductive coercive conception of the criminal law, but instead integrates its concern with promoting public goods with the condemnation of the wrongs it criminalises. it does this by offering a dual ‘moral-practical’ account of the criminal law, an account that enables it to combine the distinctive and non-distinctive elements that, it was argued above, all theories of criminalization should possess.70 the article will now explain how. where condemnation is concerned, the pga conceives of the criminal law as an official articulation of the moral reasons against the criminal 70 hence simester and von hirsch’s phrase to describe the criminal law: a ‘morally-loaded regulatory tool’ (n 56). as such it offers a hybrid (or mixed) account of the justification of criminalisation. for summaries of hybrid accounts, see ashworth and zedner, ‘punishment paradigms and the role of the preventative state’ (n 58) 3, 5, thorburn, ‘punishment and public authority’ (n 57) 15 and a spena, ‘harmless rapes: a false problem for the harm principle’ (2010) diritto & questione publicche 497, 506-507. for a defence of a mixed theory of criminalisation, as opposed to punishment, see edwards and simester, ‘prevention with a moral voice’ (n 50). public goods and criminalisation 94 behaviour: consequently, conviction condemns those who were not persuaded by those moral reasons. this approach also accounts for the rules and principles of attribution, as such condemnation makes little sense without a concern with the questions of moral responsibility and culpability. according to the pga, however, the criminal law is also meant to impact on practical reason, with a view to preventing criminal behaviour. according to the pga, it does this, first, by officially highlighting, and hence communicating, the moral wrongfulness, the mala, of the wrongs it criminalises. however, this moral appeal is reinforced by a prudential disincentive, in the form of the fear of conviction and sanction, for those who may not hear, or hear as loudly as they should, the criminal law’s concern with the underlying first order reasons. the liberal view that the law should not concern itself with the moral character of citizens is therefore accorded some weight within this conception: if you comply with the requirements of the criminal law, the criminal law has no interest in why you have done so. the criminal law should be happy for us to comply for any reason, including the prudential reasons it supplies, because that is all that is required for creation and maintenance of public goods. however, the criminal law does more than highlight, and supplement with prudential reasons, the moral reasons to not commit the wrongs it criminalises. it also offers moral and prudential reasons to exclude the reasons in favour of criminal wrongdoing.71 this is because, according to the pga, excluding those reasons is necessary to ensure the behavioural consistency necessary to sustain public goods.72 this reason generates a moral obligation to pre-empt, namely that so doing provides the advantages made available to all by the creation and maintenance of 71 as such, it acts as an exclusionary reason, following raz’s conception of authority: see the morality of freedom (n 2) and ethics in the public domain (n 3). see also ‘the problem of authority: revisiting the service conception’ (2006) 90 minnesota law review 1003, 1022, where raz states that “... exclusionary reasons do not, of course, exclude relying on reasons for behaving in the same way as the directive requires … [but] … must … override our inclination to follow reasons on the losing side of the argument. hence the preemption excludes only reasons that conflict with the authority’s directive.” this must be correct: the criminal law should be entirely happy for us to refrain from acting upon the moral reasons against, say, murder or rape. but, contra duff (see n 52), it should also be satisfied if we observe its prohibitions for prudential reasons alone. 72 this exclusionary power is subject to a limited number of exceptions, when the criminal law deems that acting on certain contrary reasons justifies committing the criminal wrong. the principles governing self-defence are an example. the denning law journal 95 public goods, not least the highly valuable overarching benefits of public goods. but this is, once again, supplemented by a prudential incentive to exclude, the fear of conviction and sanction. to summarise, the pga offers a dual ‘moral-practical’ account of the criminal law. for those who already accord the proper moral weight to the criminal law’s underlying moral concerns, its existence is, in fact if not in design, superfluous, though it serves as a vital indication that the state shares concerns with certain values and goals. but the criminal law is bilingual: to those who do not feel the rational pull of the underlying reasons, or does not feel that pull as strongly as they ought to, it offers content-independent prudential reasons to comply with its directives and exclude countervailing concerns. however, a key challenge raised by duff is the notion that deterrence, the supply of prudential reasons in the form of the fear of prosecution, conviction and punishment, bypasses the moral agency of the person coerced. as a result, its use does not treat the person with the respect he deserves, but rather as an entity to be manipulated by the fear of conviction and punishment. duff believes this problem applies even when prudential reasons are combined with, or limited by concern with, the moral status of the agent.73 there are two elements to this criticism. first, that the supply of prudential reasons disrespects the moral agency of the individual coerced; second, that it treats the agent as a means to certain ends, those of individual and general deterrence. these two elements constitute powerful objections to prudential reasons and reasons of space prevent this article from doing them justice. the second is the most powerful, and this article will have something to say about it in the next section. the first is addressed by the fact that the pga does not conceive of the criminal law as an exercise in pure manipulation, but as a dual moral-practical form of persuasion. moral agents acknowledge the role of prudential reason in practical reasoning and organisation, because of moral fallibility.74 but importantly too, those prudential reasons, and the exclusionary effect of criminal prohibitions, are offered in the name of the public goods: as such, desistance is demanded not without appeal to a moral reason of a kind and not without articulating a benefit to the person coerced. the prudential disincentive is therefore offered in the name of maintaining the valuable autonomy of all citizens, and so engages meaningfully with the moral agency of persons. 73 see matravers, justice and punishment (n 53) 264. it is for this reason that duff suggests conceiving of the criminal law completely differently, as an exercise in the communication of censure: (n 52). 74 matravers makes this very point: see the jurisprudence of antony duff (n 42) 82. public goods and criminalisation 96 to express the idea another way, citizens engage with prudential reasons as part of an overall scheme of which they are the direct beneficiaries. 5. the pga and desideratum 3 desideratum 3 (‘d3’) acknowledges that criminalisation involves the exercise of power by the state and, therefore, that any theory of criminalisation should demonstrate a coherent understanding of how its conception of the criminal law coheres with a theoretical account of the legitimacy of that power.75 some theories of criminalisation believe this relationship begins with, and is governed by, the political. this means the criminal law is justified in entirely political terms: consequently, the approach of such theories to d1 emerges from their conception of the state’s nature and role. the pla of thorburn, described in the previous section, is an example. by way of contrast, the retributivist approach of michael moore begins life independently of political concerns, by offering an account of behaviour worthy of retributive punishment. it then only requires that the task of articulating that behavior, and punishing for its commission, is legitimately entrusted to the state, whatever form the state takes.76 as explained in the previous section, the pga, like the pla, adopts the former approach, with the result that its understanding of d1 emerges from, and is governed by, a political concern with the promotion of public goods. this section will explore in greater detail the implications of this approach. 75 duff, farmer, marshall, renzo and tadros (eds), ‘introduction: towards a theory of criminalization’ in criminalization: the political morality of the criminal law (n 22) 1, 5: “a theory of criminalization must … include or depend on a political theory of state and society: it must be a theory of the role that criminal law should play within a particular kind of polity.” see also duff, ‘criminal law theories’ in the stanford encyclopedia of philosophy <https://plato.stanford.edu/entries/criminal-law/> accessed july 2017: “philosophical theories of criminal law, whether analytical or normative, cannot subsist in isolation. for one thing, they cannot be wholly separate from other branches of philosophy. they must draw, most obviously, on political philosophy, since they must depend on some conception of the proper aims of the state and of the proper relationship between a state and its citizens.” 76 placing blame (n 52). it is worth noting that moore’s legal moralism includes a number of principles that limit its concern with moral wrongs, most notably the presumption in favour of “the standing case for liberty” and epistemic modesty on behalf of legislators: see generally ‘liberty’s constraints’ (n 43). see also placing blame (n 52) 75-80 and ‘a tale of two theories’ (2009) 28 criminal justice ethics 27, 32-33. the denning law journal 97 property offences and the public good of the property regime, as explained by raz, illustrate the nature of this fundamentally political approach of the pga: every person has … an interest [in the protection of property rights by the criminal law] inasmuch as (1) every person may become a property owner; and (2) every person benefits from the fact that property rights are secure. these benefits take many forms. they are not easy to specify exhaustively. they come close to being the interest that all people have in living in a civil society. my right in my property is based on my interest in having that property. but the weight given to my interest, the degree of protection it deserves, and the form that protection should take is morally determined by considerations which transcend concern for my interest in itself. they reflect the interest of other people in the common good of respect for property.77 raz here is referring to a notion that lies at the heart of the pga and its approach to d3. this is the notion that the intrinsic value of public goods outlined at the outset of this article, the fact that they exist to benefit all, and create benefits that transcend the sum of individual and shared goods they embrace, should inform and limit the definition of criminal wrongs. the full implications of this observation can be drawn out by returning to the distinction between mala in se and mala prohibita crimes outlined in section 3. it was argued that the difference between these two types of crime is one of degree rather than one of kind. what this means is that, even with those crimes traditionally viewed as mala in se, there is an element of prohibita in the criminal law’s definition of the wrong. according to the pga, this is largely a consequence of the criminal law’s political role as provider of public goods, and its concern with the overarching benefits of such goods. the explanatory and evaluative power of this approach can be illustrated with the following examples: crimes targeting driving with an excessive blood-alcohol concentration; the debate surrounding deceptions as to hiv-positive status within the crime of rape; finally, the reach of the defence of duress. these will be addressed in order. the public good of a safe road traffic system, in its capacity as a framing good, plays a key role in providing many private and shared goods. behaviour that poses an unacceptable risk to the safety of this system, such as excessive speed, driving without due care and attention and driving whilst intoxicated, is therefore a candidate for criminalisation. 77 raz, ‘rights and politics’ (n 5) 33. public goods and criminalisation 98 however, where road safety is concerned, the exact contours of any offences created, for example the speed limit on any given road, the standard of care for driving, and the legal level of blood-alcohol concentration, are not, and cannot be, articulated purely in terms of free standing morality, for example that it is wrong to put the lives of others at risk. the contours of these offences must also depend upon the overall objectives and overarching benefits of road use, as well as the costs of reducing risk and the collateral effect of criminalisation on other public goods. it is these factors that enable the relevant crimes to take their final form, and constitute the element of prohibita where such crimes are concerned. where legal levels of blood-alcohol concentration are concerned, this is illustrated by anthony bottom’s analysis of sir peter north’s proposal to lower the blood alcohol limit for the crime of driving with a bloodalcohol concentration above 80mg/100ml.78 as bottoms points out, this proposal was rejected because it was decided that doing so would have very little impact on casualties, divert police resources away from the more serious cases, and even have a negative effect on commerce. this conclusion was reached despite a high degree of consensus that driving with any alcohol in the system is mala in se, that is to say morally wrong. it is the concern with public goods that explains why, nevertheless, the level was not lowered. as pointed out in section 3, whether the wrong of rape embraces all, or only some, frauds in the inducement leading to sexual intercourse is a controversy within morality.79 nevertheless, in order for the public good of sexual integrity to materialise, the criminal law must settle on which fraudulent inducements to include in its definition of the criminal wrong. according to the pga, such a decision should be informed, in part, by the imperatives involved in maintaining the public goods affected by the decision to criminalise this or that fraud in the inducement. and so, whether misleading a sexual partner about hiv positive status, a fraud in the inducement, should negate consent within the context of sexual intercourse cannot be settled exclusively by moral concerns surrounding deceit; it should also engage with those moral and practical concerns raised by the maintenance of the public goods of public health and nondiscrimination.80 78 a bottoms, ‘civil peace and criminalization’ in duff et al, criminalisation: the political morality of the criminal law (n 22) 232, 261-264. 79 see (n 20) and (n 21) and accompanying text. 80 matthew weait has written extensively on this question: see, for example, intimacy and responsibility: the criminalisation of hiv transmission (routledge cavendish 2007). gillick v west norfolk and wisbech health the denning law journal 99 the above has hopefully demonstrated how a concern with public goods has direct implications for the definition and reach of criminal wrongdoing. however, concern with the intrinsic value of public goods also has implications for the criminal law’s rules and principles of attribution. the relationship between the defence of duress in english law and the public peace can be used to illustrate this. the maintenance of the public peace demands a measure of consistent protection of physical and psychic autonomy, through both the deterrent effect of a police presence and the threat, and fact, of prosecution. the maintenance of this general climate of security for the benefit of all, and the overarching benefits it supplies, it is suggested, explain why the limits of the defence of duress should not be decided purely in terms of the moral culpability of the accused. to illustrate, in the uk, the defence of duress is denied to those who knowingly or negligently expose themselves to threats of violence.81 if duress is conceived as an excuse, denying the defence to defendants on such grounds is defensible, as, arguably, they bear a measure of blame for subjecting themselves to the risk of the threat of violence.82 but the restriction also flows, at least in significant part, from a concern with maintaining the public peace. lord simon of glaisdale acknowledged this interaction between culpability and maintaining the public peace where duress is concerned in dpp for northern ireland v lynch:83 a sane system of criminal justice does not permit a subject to set up a countervailing system of sanctions or by terrorism to confer criminal immunity on his gang. a humane system of criminal justice does not exact retribution from those who infringe the substantive provisions of its code under stresses greater than ordinary human nature can bear, nor attempt, by making an example of them, to deter those who in the nature of things are beyond deterrent. a sane and humane system of criminal justice is sufficiently flexible to reconcile such considerations, and to allow for all their infinite degrees of interaction. i have ventured to authority [1986] ac 112 is arguably an example of where concerns with the public good of public health helped generate a decision not to criminalise behaviour. in that case, a decision not to criminalise, under certain circumstances, the provision, by doctors, of contraceptive advice to those under 16. 81 hasan [2005] ukhl 22. 82 see lord bingham, ibid [38]. 83 [1975] ac 653. public goods and criminalisation 100 suggest that our own system of criminal justice is capable of such sanity and humanity…84 in the same vein, the law commission, in an exploration of the extension of the defence to murder, noted concerns expressed by the english judiciary that “… the members of a criminal gang might be capable, not only individually, but in collusion, of concocting a false defence of duress.”85 duff’s concern, mentioned under d2, about using persons as a means to an end is most pertinent here. the fact that the reach of the defence of duress is not exclusively concerned with the moral culpability of the accused, but rather the goal of maintaining the public peace, means that, on occasion, a conviction involves, to a certain degree, sacrificing the individual to that goal. as a result, he is (partly) treated as a means to an end. perhaps the only response to this is to accept that this is an inevitable feature of the criminal law, and that all that can be done is, as lord simon suggests, to balance the concern with the public peace with the concern with culpability. perhaps some of this negative impact of the criminal law’s concern with public goods can be addressed in the context of sentencing. however, any theory that attempts to purify the criminal law of this concern with public goods is likely to result in serious descriptive failures, undermine preventative goals and be overly idealistic, but the defence of these claims must be left to another occasion. 6. the pga and desideratum 4 the above discussion reveals that pga articulates the reach of the criminal law in ways that flow from its concern with the maintenance of public goods. in this final section, the article will explore desideratum 4 (‘d4’), that is, whether that concern distils criminal from non-criminal behaviour correctly. there are two facets to this question. first, d4 requires the articulation of principled limits to the reach of the criminal law. second, respecting d4 means a theory of criminalisation should not exclude from criminalisation behaviour that ought to be included. this section will explore these two facets through an examination of two examples that test the plausibility of theories of criminalisation where they are concerned. it will begin with the question of principled limits. the pga has two features that ensure principled limits to the criminal law: first, the fact that criminalisation must promote valuable autonomy; 84 ibid 696. 85 law commission, legislating the criminal code: offences against the person and general principles (law com no 218 cm2370, 1993) [33.2]. the denning law journal 101 second, the characteristic of public goods as non-excludable and nonrivalrous, meaning the autonomy they provide must be available to all citizens equally. 86 this can be illustrated by contrasting offences against the person with the notion of criminalising homosexual sex. the ban on interpersonal violence provided by the various offences against the person in the criminal calendar enables each citizen to exercise the valuable autonomy that flows from freedom from physical and psychic violence. this is achieved by criminalising, and hence systematically prohibiting, behaviour that prevents or hinders the exercise of that valuable autonomy; in other words, providing protection to all from violence helps create the non-excludable, and non-competitive good, known as the public peace. by way of contrast, banning homosexual sex does not augment the autonomy of citizens in any way. this is because such a ban does not target behaviour by any given citizen that impinges on the exercise of sexual integrity by another. citizens do have an interest in their sexual autonomy and the protection of their sexual choices and inclinations, whatever they may be, and so behaviour that infringes on that sexual autonomy, such as sexual assault and rape, are legitimately criminalised according to the pga. by way of contrast, prohibitions that seek to prevent citizens from exercising that valuable autonomy are illegitimate according to the pga. according to the pga, criminal coercion is used only to promote valuable autonomy, not suppress valuable autonomy, in order to create a non-excludable good. some might suggest that homosexual sex is not a form of valuable autonomy, on grounds of immorality. however, even if this premise were true (a position rejected by this article), the pga’s exclusive interest in promoting valuable autonomy, as opposed to suppressing valueless autonomy, would mean that any supposed immorality of such behaviour is irrelevant to its criminalisation according to the pga. the pga does not permit the criminalisation of valueless autonomy merely by dint of it being valueless: that behaviour must negate the valuable autonomy of others, directly or indirectly, thereby undermining a public good. homosexual sex does not do that. attention can now turn to the second facet, which is whether the pga excludes from criminalisation behaviour that ought to be criminalised. its plausibility here can be interrogated by examining its approach to the criminalisation of non-consensual medical treatment that heals and, therefore, arguably does no harm to that patient. this is the case of wrongdoing that is beneficial to the victim. 86 this does allow for some exclusions of a non-arbitrary kind, such as children from the shared good of contract or the individual good of voting, see text of (n 4). public goods and criminalisation 102 imagine a doctor who ignores the refusal of a patient for a blood transfusion, saving the patient’s life. given the non-consensual invasion of bodily autonomy, this example is intuitively one of criminal activity, in the form of an offence against the person. it is used to challenge those theorists who conceive of harm, in the form of forward-looking losses of autonomy, as a necessary condition of criminalisation.87 given the forward-looking autonomy enhancing, as opposed to negating, effect of such treatment, it would seem the treatment is harmless, and therefore cannot be criminalised according to those theorists. however, whilst this is a powerful challenge to such theorists, it does not undermine the pga. first, the fact that the treatment heals does not mean the autonomy exercised in refusing is valueless: it may be the product, say, of religious conviction, and the ability to put into practice one’s religious beliefs is valuable activity. so, the criminalisation of such treatment still promotes valuable autonomy. but, for the sake of argument, let us imagine that the refusal of treatment is worthless, for example based on racial prejudice against the treating doctor. if the pga requires that criminal prohibitions should only target behaviour that negates the exercise of valuable autonomy in others, it seems that such a prohibition is not justified by its lights, as it only protects the exercise of valueless autonomy by the person refusing treatment. this is a counter-intuitive result and, if required by the pga, would undermine its plausibility. the pga’s approach to this question takes a more practical turn at this point. offences against the person increase the valuable autonomy of persons, but in offering blanket protection, doubtless valueless autonomy is protected by them as well. however, the pga considers it impractical to allow or encourage citizens to decide for themselves when their victim is exercising valuable or valueless autonomy, either empirically (have they assessed the situation correctly?) or as a matter of moral judgment (is the autonomy indeed valueless?). it is far safer for the overall promotion of valuable autonomy, including the valuable autonomy protected by the public peace, that the criminal law does not allow citizens to so 87 those who subscribe to the forward-looking conception of harm as a necessary condition of criminalisation include gardner: see offences and defences (n 1): the notion that “… life-prospects are being affected adversely …” 244; simester and von hirsch crimes harms and wrongs, ch 3 ‘crossing the harm threshold’ (n 1) and ‘on the legitimate objectives of criminalisation’ (n 41) 378. raz also subscribes to a forward-looking conception of harm: see the morality of freedom (n 2) 413-414 and 416. this might be labelled the ‘prospect harm’ conception, to use stanton-ife’s term when summarising the position of such theorists: see his ‘horrific crime’ in duff, farmer, marshall, renzo and tadros (eds), the boundaries of the criminal law (n 67) 129, 159. the denning law journal 103 discriminate, as the potential for error by those persons is very great indeed. theorists who criticise the harm principle for failing to account for the criminalising of the doctor’s behaviour argue that when wrongdoing consists in the violation of another’s rights to personal autonomy, that wrongfulness alone is enough to justify criminalisation, and so the case should be accounted for on those grounds.88 such an approach risks missing the point that the harm principle addresses a central concern of criminalisation: the need to justify the fact that the criminal law is a creature of the state.89 all theories of criminalisation should therefore offer such a justification: it is not enough simply to declare violations of autonomy worthy of criminalisation upon the basis of wrongfulness alone. john gardner has addressed this need in the context of the wrong of rape: … the would-be rapist is a would-be wrongdoer. this already picks him out as a suitable person to be threatened with punishment (coerced). it is not the job of the harm principle to pick him out again. the job of the harm principle is to regulate the wider purposes of the law that does the threatening. this law, and indeed every coercive law, must have and fulfil a harm-prevention purpose. the prevention of offence, distress, pain, vice, or indeed further wrongdoing is not sufficient warrant for coercion by law unless by such coercion the law also prevents harm.90 the question boils down to finding the correct principle to justify state intervention. for gardner and others, it is harm; for thorburn, it is the state’s responsibility to secure the equal freedom of all citizens; for duff, it is the vindication of moral values that concern the polity as a whole;91 88 h stewart, ‘the limits of the harm principle’ (2010) criminal law and philosophy 17, 33, where stewart calls such violations ‘juridical wrongs’. he is not the only theorist to suggest that the presence of juridical wrongs is sufficient to justify criminalisation: see stanton-ife, ‘horrific crime’ ibid 161. alternatively, fidelity to the harm principle where juridical wrongs are concerned might be maintained by conceiving of the wrong itself as also a harm, though not of the ‘prospect’ kind: see stanton-ife, ‘horrific crime’ ibid 159-162 and a spena, ‘harmless rapes: a false problem for the harm principle’ (2010) diritto & questione publicche 497, especially 513 onwards. 89 as pointed out by jg murphy in ‘retributivism, moral education and the liberal state’ (1985) 4 criminal justice ethics 3, 4. 90 gardner, offences and defences (n 1) 243. 91 it should be noted that duff’s normative vision of the criminal law does not see it as a coercive practice. public goods and criminalisation 104 and for moore, it is the state’s duty to impose just retribution. for the pga, as this article has argued, it is the maintenance of public goods.92 the nature of the pga is further explicated by offering some brief observations on how the pga might approach the issues concerning sadomasochism raised by the decision in r v brown.93 the accused in that case consented to the activities in question, and so were exercising their sexual autonomy. as a result, the criminalisation of their behavior would not appear justified under the pga, since it arguably targets activity on the basis of its supposed immorality, as opposed to targeting behaviour that reduces the exercise of valuable autonomy in others. can the criminalisation of the behaviour in brown nevertheless be justified under the pga? it is suggested that if the criminalisation of such behaviour is to be so justified, it should be in the form of public crime. if its criminalisation promotes a public good, say a general commitment to noncruelty or the maintenance of public health and so, directly or indirectly, increases the valuable autonomy of individuals, then that arguably presents a (prima facie) case for so doing. but such an objective must be carefully balanced, in an informed way, against the value of protecting and promoting sexual integrity, both where the individual and the public good are concerned. it is only after such an analysis that, according to the pga, the decision to criminalise can be reached. much depends, it may be supposed, on the level of violence intended by the participants. finally, it is suggested that a concern with public goods allows us to understand why certain moral wrongs conventionally seen as beyond the reach of criminalisation, such as adultery and lying to friends, are legitimately seen that way. it is only when moral wrongdoing impacts on a public good that it is potentially worthy of criminalisation. this is why romantic infidelity and betrayals within friendship are not worthy of criminalization under the pga, because their occurrence does not impact on any public good. indeed, there is a public good in the general availability to form and manage our own romantic and other kinds of 92 for raz, the impact on valuable autonomy constitutes harm, of the prospect kind (see n 87): see the morality of freedom (n 2) 417 and 426. the pga therefore has much in common with those theorists who support the harm principle as a necessary condition of criminalisation. however, though this claim cannot be defended here, the pga as this article conceives believes that valuable autonomy and public goods can be undermined other than through prospect harm. also, in contrast to harm moralists such as gardner, the pga fuses its concern with moral wrongs with its political conception of the criminal law, as opposed to seeing the prevention of harm as an independent political concern of the criminal law once a (non-political) moral wrong has been established. 93 [1994] 1 ac 212. the denning law journal 105 relationships. if the criminal law was to threaten conviction for the various forms of betrayal that can occur in such relationships, it would often remove the element of sincerity that is key to the existence of the shared goods of marriage and friendship and the public goods of which they are part.94 7. conclusion as stated at the outset of this article, for a theory of criminalisation to draw on the notion of public goods is not new. the fundamental aim of this article was therefore to explore and defend, in greater depth than has occurred previously, the implications of a theory of criminalisation embedded in the notion of public goods. the use of the four desiderata was designed to tease out the merits of such a theory, in the most salient and explicit way possible. all of this has been done with the hope of stimulating further analysis of what this article believes is an extremely promising theory of criminalisation. 94 for a similar point, see horder, ashworth’s principles of criminal law, (n 1) 54. 109 the denning law journal 2017 vol 29 pp 109-130 legal commentary ‘how well are we doing?’ the united kingdom and its implementation of the oecd anti-bribery convention john hatchard* 1. introduction the organisation for economic cooperation and development (oecd) convention on combating bribery of foreign public officials in international business transactions (the oecd convention) entered into force on 15 february 1999. as at 31 may 2017, there were 41 state parties (the parties) comprising the thirty-five oecd member countries and six non-member countries. 1 the united kingdom (uk) ratified the convention in 1998. the oecd convention is supplemented by the revised recommendations of the council of the oecd on combating bribery in international business transactions (the 2009 recommendations),2 annex i of which contains “good practice guidance on implementing specific articles of the convention.” in march 2017, the oecd working group on bribery in international business transactions (the wgb) published its phase 4 report on the united kingdom’s implementation of the oecd convention (phase 4 report).3 having provided a short background section on the scope of the oecd convention and the role of the wgb, the following section will review some of the key recommendations contained in the phase 4 report. in the final section, an assessment is made as to how well the uk is doing with regard to the implementation of its oecd convention obligations. * barrister, professor of law, buckingham law school; co-director, university of buckingham centre for extractive energy studies. 1 argentina, brazil, bulgaria, colombia, the russian federation and south africa. these countries are home to 95 of the largest 100 non-financial multinational enterprises and all the top 50 financial multinationals. together they cover 64% of global outbound flows of foreign direct investment and over 50% of the world’s exports: oecd fighting the crime of foreign bribery (oecd, paris 2015) 3. 2 adopted by the council on 26 november 2009. 3 oecd, implementing the oecd anti-bribery convention: phase 4 report, united kingdom (oecd, paris 2017) <https://www.oecd.org/daf/antibribery/unitedkingdom-oecdanti-briberyconvention.htm> accessed 10 june 2017. legal commentary 110 2. the scope of the oecd convention and the role of the wgb the oecd convention is wholly concerned with bribery on the supply side. thus article 1 requires parties to establish that it is a criminal offence for: …any person intentionally to offer, promise or give any undue pecuniary advantage or other benefit … to a foreign public official … in order to obtain or retain business or other improper advantage in the conduct of international business.4 as regards enforcement, article 5 of the convention states that: investigation and prosecution of the bribery of a foreign public official … shall not be influenced by considerations of national economic interest, the potential effect upon relations with another state or the identity of the natural or legal persons concerned. article 3 provides that sanctions are to be “effective, proportionate and dissuasive.” given the transnational nature of the offence, parties to the oecd convention are required to provide “to the fullest extent possible” prompt and effective mutual legal assistance.5 article 12 provides for a systemic monitoring and follow-up procedure. the purpose of monitoring is to: ensure compliance with the convention and implementation of the 2009 recommendations. monitoring also provides an opportunity to consult on difficulties in implementation and to learn from the experiences of other countries. in order to enhance its effectiveness, “monitoring must be systematic and provide a coherent assessment of whether a participant has implemented the convention and 2009 recommendations.”6 4 in addition, parties are required to introduce a series of accounting offences (article 8) and to make the bribery of a foreign public official a predicate offence for the purpose of the application of its money laundering legislation (article 7). 5 article 9. 6 oecd, monitoring implementation of the oecd anti-bribery convention: phase 4 evaluation procedures (oecd, paris 2016) para 5. the denning law journal 111 the monitoring is carried out by representatives of the parties. the wgb publishes all its country reports and a party has no right to veto the final report or the wgb recommendations. the monitoring/review process has been divided into a series of “phases” and all parties have been subject to three rounds of review. phase 4 was launched in 2016.7 phase 1 and phase 2 reviews concentrated on assessing compliance by parties with their responsibilities to have in place appropriate anti-corruption measures and legislation. the focus of the phase 3 review included assessing progress made by parties on addressing weaknesses identified in phase 2 and enforcement efforts and results. following each review of the uk, the wgb made a series of recommendations for improving the implementation of the convention. however, not all of these have been complied with satisfactorily. for example, the phase 3 evaluation in 2012 made 35 recommendations. the level of implementation was then evaluated in 2014 and it was found that 18 recommendations had been implemented. however, 7 had been partially implemented and there had been no implementation of 9 other recommendations.8 these were re-visited in the phase 4 review. the phase 4 review focuses the progress made by parties on weaknesses identified in previous evaluations; enforcement efforts and results; and any issues raised by changes in the domestic legislation or institutional framework of the parties.9 the uk is one of the first countries to be reviewed. the review itself was undertaken by wgb lead examiners from norway and south africa. they met with government officials, representatives from law enforcement agencies, including the serious fraud office as well as representatives from a range of leading civil society organisations, the media and private sector organisations. 3. the phase 4 report the following analysis of the phase 4 report focuses on seven key areas: 1. the independence of the serious fraud office 2. extension of the foreign bribery offence in the crown dependencies and overseas territories 3. detection of foreign bribery offences 4. identifying the beneficial ownership of companies 5. multiple prosecutions in foreign bribery cases 6. the bribery act 2010 and the ministry of justice guidance 7 this is scheduled to take place between 2016 and 2024. 8 for details see phase 4 report, annex 1. 9 see (n 6) 5. legal commentary 112 7. the potential impact of brexit. 1. the independence of the serious fraud office the importance of maintaining the independence of specialised agencies involved in the investigation and prosecution of bribery cases is widely recognised and is a requirement in the united nations convention against corruption (uncac).10 in this regard, the serious fraud office (sfo) is the leading uk law enforcement agency in the investigation and prosecution of foreign bribery cases.11 established in 1987, it has had a somewhat chequered history albeit in recent years it has obtained some notable successes12 with the wgb lead examiners stating that “the sfo’s record testifies to its independence and capacity to seriously investigate and prosecute foreign bribery allegations.”13 the independence and work of the sfo was thus a key area for consideration by the wgb lead examiners who raised several areas of concern. i) sfo funding the general position regarding funding of such agencies is set out in annex 1, paragraph d) to the 2009 recommendations. this states that: member countries should provide adequate resources to law enforcement authorities so as to permit effective investigation and 10 article 36 of the uncac provides that such a specialised agency “shall be granted the necessary independence … to be able to carry out its functions effectively and without undue influence.” the uk became a party to the uncac in 2006. paragraph 6 of the annex to the 1999 revised recommendation states that “…public prosecutors should exercise their discretion independently, based on professional motives.” curiously, this was omitted in the 2009 recommendation. 11 as the phase 4 report puts it: “a plethora of law enforcement agencies with potential competence in foreign bribery cases, but one essential actor: the sfo” 28. 12 for example, in 2017 it secured the two largest criminal settlements in english legal history: £497,250,000 plus £13 million in costs from rolls-royce and £128,992,500 plus costs from tesco: see, bill waite, ‘bill waite: the sfo ain’t broke, so don’t fix it…’ (the fcpa blog, 31 may 2017) <www.fcpablog.com/blog/2017/3/31/bill-waite-the-sfo-aint-broke-so-dont-fixit.html#sthash.i7bovsmt.dpuf> accessed 15 june 2017. 13 phase 4 report, commentary, 42. the denning law journal 113 prosecution of bribery of foreign public officials in international business transactions. however, in several previous reports the wgb had drawn attention to the lack of adequate funding of the sfo and this issue is highlighted once again in the phase 4 report. the issue concerning “blockbuster funding” is of particular concern. this is additional funding which the sfo may seek to obtain from hm treasury on an annual basis for the purposes of investigating large or complex cases. the wgb lead reviewers noted that according to the crown prosecution service inspectorate: whilst the blockbuster funding model draws criticism that there is a perceived lack of independence from government, it found no evidence whatsoever that funding would be withheld because of political interference.14 this is hardly the point for any such ad hoc arrangement is liable to be subject to (or run the risk of being perceived as subject to) political interference. as a transparency international report asserts: …the serious fraud office’s budget remains a significant concern as it continues to be under-funded, and approval of supplementary funding needed for its functioning gives the uk government, effectively, a power of veto regarding which cases the office can take on, compromising its independence.15 the need to provide adequate and secure financial resources for the sfo without the need for it to go cap in hand to the government for additional funding is reflected in the relevant recommendation in the phase 4 report: …the lead examiners consider that the rules that govern the financing of the sfo cause concerns in the context of article 5 of the convention. they note that for many commentators, including in the judiciary sphere, the reliance of the sfo on blockbuster funding represents a risk of political interference, and could, at the very least, result in an unfortunate perception of influence of the 14 phase 4 report, para 100. 15 transparency international, exporting corruption progress report 2015: assessing enforcement of the oecd convention on combating foreign bribery (transparency international, london 2015) 7. legal commentary 114 executive over law enforcement. the lead examiners believe that this risk exists and should be addressed.16 this is certainly an area that the wgb will need to keep under review. ii) tenure of the sfo director the independence of such agencies is further enhanced by providing senior officials with security of tenure. yet in the case of the sfo the director’s contract can be of any duration and can be terminated by the attorney general at any time. this was the subject of criticism by the wgb in its phase 2 bis report in 2008 although it noted that draft legislation was pending to amend the conditions under which the attorney-general may appoint and remove the director of the sfo. not surprisingly, in the wgb lead examiners expressed concern that such legislation was still awaited.17 the response of the uk to such concern was that it was ‘inconceivable in practice’ that an attorney-general would dismiss the director following a disagreement about the investigation of a case.18 the lead examiners rightly did not accept this view and considered that: …the rules for the appointment and removal of the sfo director should be designed to reinforce his/her independence, and that the sfo’s independence could be further improved by ensuring appropriate safeguards are in place regarding appointment and dismissal of its director.19 this criticism is welcome. the sfo only investigates the most serious cases involving allegations of foreign bribery and these will often involve matters of the most sensitive political and economic nature. the effective enforcement of the convention is dependent upon states adhering strictly to their obligation under article 5 of the convention. not surprisingly the lead examiners recommend that this is an issue that the wgb should continue to follow up on.20 iii) the future of the sfo it is disappointing that the uk continually fails to address the valid criticisms of the wgb concerning the sfo. the independence of 16 phase 4 report, commentary, 42. 17 ibid para 98. 18 ibid. 19 ibid commentary, 42. 20 ibid para 133. the denning law journal 115 investigators and prosecutors can only be assured if they demonstrably have the right to exercise their discretion independently and enjoy adequate ringfenced resources. the current ad hoc approach is unacceptable. however, of greater concern is the future of the sfo itself. the wgb lead examiners recommended that the uk maintain the sfo’s role in criminal foreign bribery-related investigations and prosecutions pointing out that the integrated approach (the so-called “roskill model”) which brings together prosecutors, investigators and other specialists “constitutes a positive achievement which has proven very effective in bringing foreign bribery cases forward.”21 it remains to be seen whether the pre-general election pledge in may 2017 by the prime minister to merge the sfo with the national crime agency (nca) will be carried out. this is a matter that raises very serious concerns not least because the nca is directly responsible to the secretary of state for home affairs and accordingly the prospect of potential or actual political interference in the investigation and prosecution of foreign bribery cases. no doubt the wgb will take a very active interest in what is a clear threat to the effective implementation of the convention, and article 5 in particular. 2. extension of the foreign bribery offence in the crown dependencies and overseas territories since the phase 1 review in 1999, the wgb has consistently recommended that the uk extend the oecd convention to the crown dependencies (cds) and overseas territories (ots). this recommendation was reviewed by the wgb lead examiners during their on-site visit. the cds comprise the isle of man, jersey and guernsey whilst there are 14 ots including the key off-shore jurisdictions of the british virgin islands, cayman islands and gibraltar. the financial services industry in each is the main contributor to their economies.22 as emphasised in the phase 4 report the: 21 ibid commentary, 33. 22 it is noted in para 49 of the phase 4 report that “hm treasury recognises tha t the financial services industry is one of the main contributors to the economies of bermuda, the cayman islands, the british virgin islands and gibraltar and, to a lesser extent anguilla, the turks and caicos islands and montserrat. six ots (anguilla, bermuda, the british virgin islands, the cayman islands, gibraltar and the turks and caicos islands) are considered offshore financial centres that take a significant part in global financial flows.” legal commentary 116 …attractiveness of [the united kingdom’s] financial sector, combined with close links to off-shore centres [i.e. the cds and ots], expose the uk to significant risks of corruption and foreign bribery-related money laundering.23 further, that the “misuse of corporate vehicles, trusts and foundations registered in the [cds and ots] is seen as a significant barrier to tackling money laundering, corruption and asset recovery.”24 the constitutional relationship between the uk and the cds/ots is curious. the uk remains responsible for their defence and foreign relations. however, they are not part of the united kingdom, have the power to enact local legislation and are each responsible for executing mutual legal assistance and extradition requests within their own jurisdictions. whilst the uk has the power to ratify international conventions on their behalf, in practice, the cds and ots are able to decide as to which treaties they wish to become a party.25 in this regard, the wgb lead examiners highlight several areas of progress: firstly, the convention has been ratified in the three cds and three key ots (british virgin islands, cayman islands and gibraltar) with work continuing in another four territories; secondly, for the first time, representatives of the cds, the british virgin islands, cayman islands and gibraltar actively participated in the on-site visit; thirdly, that the uk was monitoring the implementation of the convention in the cds and ots in law and, in practice, is providing assistance to assist them in strengthening their capacity to investigate and prosecute foreign bribery. it has taken the uk a number of years to reach this position but the recommendation of the wgb lead examiners that the convention is to be extended to all the ots is realistic and ever more likely.26 3. detection of foreign bribery offences 23 phase 4 report, 9. 24 ibid. 25 ibid para 54. 26 see below as regards the sharing of beneficial ownership information between the uk and the cds/ots. the denning law journal 117 the phase 4 report highlights the significant progress made by the uk in the development of more effective mechanisms for the detection of foreign bribery offences. i) self-reporting by companies the introduction of deferred prosecution agreements (dpas) has provided an opportunity for companies to self-report their involvement in foreign bribery cases.27 indeed according to the uk authorities, this has become a major source of detection of foreign bribery. 28 dpas were introduced by section 45 and schedule 17 of the crime and courts act 2013 (cca 2013). a dpa enables a body corporate, a partnership or an unincorporated association to avoid prosecution for a bribery-related case by entering into an agreement on negotiated terms with a prosecutor. a court is then required to approve the dpa in an open hearing giving a reasoned judgment. 29 the sfo has issued the deferred prosecution agreements code of practice (the sfo code of practice) which states that the failure of a company to “notify prosecutors within a reasonable time of the offending conduct coming to light” is seen as a factor in favour of prosecution rather than the entering into a dpa.30 further, “considerable weight may be given to a genuinely proactive approach adopted by the [company’s] management team when the offending is brought to their notice.”31 the element of self-reporting by the company is therefore central to the dpa mechanism and, as the phase 4 report puts it, “a suspect corporate must generally provide significant cooperation with law enforcement, including proactive self-reporting, to be entitled to seek a dpa…”32 the issue of self-reporting is explored in some detail in the phase 4 review through a consideration of the first dpa cases. the first dpa was entered into with standard bank in november 2015. here the case arose as 27 see john hatchard, ‘combating the bribery of foreign public officials and the ‘art of persuasion’: the case of alstom and the energy sector’ (2016) 28 denning law journal 109. 28 phase 4 report, para 21. 29 for a detailed discussion on dpas see c nicholls, t daniel, a bacarese, j maton and j hatchard, corruption and misuse of public office (3rd edn, oup 2017) para 8.44 et seq (hereafter nicholls et al). 30 sfo code of practice, para 2.8.1. 31 ibid para 2.8.2. 32 phase 4 report, 16. legal commentary 118 the result of a report made by standard bank’s solicitors to the serious and organized crime agency. having determined that there was sufficient evidence to charge standard bank with failing to prevent bribery contrary to section 7 of the bribery act 2010, the sfo determined that the public interest was likely to be met by a dpa and in sfo v standard bank plc this was approved in the crown court by sir brian leveson p.33 however, the approval of a dpa by sir brian leveson p in the crown court in january 2017 in the case of rolls-royce plc and rolls-royce energy systems inc caused the wgb lead examiners considerable concern. the case is controversial in that there were significant reasons for not agreeing to a dpa. in particular the wgb lead reviewers noted that the company had not self-reported but that the sfo had been alerted because of a public internet posting and only then had rolls-royce then supplied additional information to the sfo.34 in addition, the criminality took place over several decades; vast bribes were paid to obtain business around the world; and vast profits obtained.35 this raises the crucial question: if the sfo did not prosecute a company in such circumstances, when would it do so? an attempt at answering this question was made by a senior sfo official who argued that: …one of the most fundamental features of the dpa regime … is the requirement that companies are frank about what has happened, and when it comes to putting it right, cooperate fully with the sfo’s investigation” and that “this was exactly what rolls-royce had done.36 33 the judgment is available at <https://www.judiciary.gov.uk/wpcontent/uploads/2015/11/sfo-v-standard-bank_final_1.pdf>. similarly in the case of xyz ltd, a dpa was approved by sir brian leveson in the crown court with, once again, a key factor being the fact that company had self-reported to the sfo and had provided ongoing assistance: see sfo v xyz ltd. the judgment is available at <https://www.sfo.gov.uk/2016/07/08/sfo-secures-second-dpa/> accessed 15 june 2017. 34 phase 4 report, para 2. 35 according to the phase 4 report, the misconduct generated gross profits of £258,000,000 thus making it by far the largest foreign bribery case in uk history: see 12. 36 see speech by ben morgan, joint head of bribery and corruption, sfo entitled “the future of deferred prosecution agreements after rolls-royce” dated 8 march 2017, <https://www.sfo.gov.uk/2017/03/08/the-future-of-deferredprosecution-agreements-after-rolls-royce/> accessed 19 june 2017. the denning law journal 119 this reflects the view of sir brian leveson p in approving the rolls-royce dpa: 37 the fact that an investigation was not triggered by a self-report would usually be highly relevant in the balance but the nature and extent of the co-operation provided by rolls-royce in this case has persuaded the sfo not only to use the word ‘extraordinary’ to describe it but also to advance the argument that, in the particular circumstances of this case, i should not distinguish between its assistance and that of those who have self-reported from the outset.38 sir brian leveson p also noted the significant weight paid by the company to eliminating corrupt practices as well as the far-reaching consequences on the company’s ability to trade. as a result of its cooperation, a significant reduction of 50% in its sentence was applied. understandably, the case led to a critical response from the wgb lead examiners who were concerned that the case provided a precedent for a company to obtain a dpa without self-reporting and, in addition, still able to obtain a substantial reduction in its sentence despite its failure to do so.39 the concern is well-placed for these are the two key factors that are likely to persuade a company to seek a dpa. “persuading” companies to self-report their bribery activities to the law enforcement agencies represents a major breakthrough in combating foreign bribery and giving effect to the oecd convention. certainly the rolls-royce case should not overshadow the general view of the wgb lead examiners that the use of dpas is an “interesting and effective feature for sanctioning legal persons in foreign bribery cases.”40 however, their further recommendations are very pertinent. firstly, that the wgb follow up on the use of dpas in foreign bribery cases: …to evaluate in particular the effective, proportionate and dissuasive character of sanctions [as required by article 3 of the 37 see serious fraud office v rolls-royce plc and rolls-royce energy systems inc <https://www.judiciary.gov.uk/judgments/serious-fraud-office-v-rolls-royce/> accessed 19 june 2017. 38 ibid para 22. 39 the wgb lead examiners also point out that “this generous reduction contrasts with the 25 per cent reduction offered by the us department of justice in the context of its separate dpa”: ibid, para 22. 40 phase 4 report, para 59. legal commentary 120 oecd convention] imposed in that context, notably the reductions granted in the absence of self-reporting.41 secondly, that the wgb follow up to ensure rolls-royce (and other companies) did not escape liability for any additional foreign bribery not covered by the dpa. this is important as it pressurises companies to “reveal all” about their involvement in foreign bribery. ii) whistleblowing whilst the issue of whistleblowing is not specifically addressed in the oecd convention, it is now widely recognised that this is a key weapon in uncovering foreign bribery. the internet postings that led to the investigation into rolls-royce neatly illustrate the point 42 as does the impact of the “super-whistleblower” in the panama papers leaks in 2016. its importance is reflected in the phase 4 report which notes the view of the sfo that whistleblower reports are a “valuable source of information relating to foreign bribery”43 and that a “significant number of ongoing foreign bribery investigations and prosecutions also originated from whistleblower reports.”44 providing effective protection for whistleblowers remains a key issue. in the uk, the public interest disclosure act 1998 (pida) protects employees from detrimental treatment for disclosing wrongdoing. this includes corruption and any cover-up of such an offence.45 as the wgb lead examiners noted, this legislation put the uk “at the forefront of developing model whistleblower legislation in the 1990s.”46 they also recognised that a “notable and positive amendment” introduced by the enterprise and regulatory reform act 2013 had improved the protection for whistleblowers.47 however they noted the ongoing concerns raised by civil society groups which included the fact that the pida contains no direct civil or criminal penalties to stop, prevent or discourage bullying, victimisation or harassment of whistleblowers.48 the wgb lead examiners 41 ibid. 42 in 2012, the “sfo sought information from rolls-royce in respect of concerns regarding the operation of rolls-royce’s civil business in china and indonesia raised by certain internet postings”: see sfo v rolls-royce (above) para 16. 43 phase 4 report, para 24. 44 ibid para 25. 45 for an analysis of the act see nicholls et al, para 7.119 et seq. 46 phase 4 report, commentary, 20 47 phase 4 report, para 29. for details see nicholls et al, para 7.139 48 ibid para 30. the denning law journal 121 also highlighted that at the time of the phase 3 review, the pida did not protect many expatriate workers of uk companies who are based abroad and that this position remains the same. they noted that the uk government had “so far resisted calls for reform of the law in this area” but that it would look at the matter again in the context of the anti-corruption strategy to be published in 2017.49 in essence, the phase 4 report highlights important messages for both the uk and other parties to the convention. firstly, the general point that it is vital for states to keep all relevant anti-corruption related legislation under regular review in order to ensure it remains fit for the purpose. secondly, more specifically, there is a need to provide effective protection in practice for whistleblowers. as a council of europe parliamentary resolution has put it: relevant legislation must first and foremost provide a safe alternative to silence, and not offer potential whistle-blowers a ‘cardboard shield’ which would entrap them by giving them a false sense of security.50 thirdly, there is a need to consider adopting approaches being utilised successfully in other countries. for example, consideration might be given to following the lead of the united states where legislation provides that whistleblowers can receive significant financial benefits for having provided original information to the securities exchange commission concerning corporate wrongdoing.51 iii) detection of foreign bribery through anti-money laundering mechanisms the financial action task force (fatf) was established in 1989 with the uk being a founding member. the fatf is “an inter-governmental body” with a mandate that includes setting standards and promoting effective implementation of legal and other measures for combating money 49 ibid para 33. 50 council of europe parliamentary assembly resolution 1729 (2010) “the protection of whistleblowers” para 5. the resolution also contains a detailed list of “good practice” in the protection of whistleblowers. see also the council of europe parliamentary resolution 2060 (2015) on “improving the protection of whistleblowers.” 51 see section 21f(b)(1) of the securities exchange act 1934 as amended. legal commentary 122 laundering.52 these standards are set out in the fatf recommendations, the first set of which were drawn up in 1990. in 2012 the fatf issued a new set of recommendations 53 with recommendation 20 being of particularly significance here. it states: if a financial institution suspects or has reasonable grounds to suspect that funds are the proceeds of a criminal activity, or are related to terrorist financing, it should be required, by law, to report promptly its suspicions to the financial intelligence unit (fiu). this reporting obligation extends to “designated non-financial businesses and professions” (dnfbps), including real estate agents, dealers in precious metals and precious stones, lawyers; accountants and trust and company service providers.54 in the case of the uk, the relevant law implementing the fatf recommendations is found in the proceeds of crime act 2002 55 with financial institutions and dnfbps being required to make suspicious activity reports (sars) to the uk financial intelligence unit (ukfiu). as the sfo confirmed to the wgb lead examiners, such reports are potentially an invaluable source of information about the movement of the proceeds of crime and “may uncover underlying predicate offences such as foreign bribery and trigger investigations.”56 between june 2015 and october 2016, the ukfiu referred 130 briberyspecific sars to the national crime agency.57 even so, in the phase 4 report the wgb lead examiners highlight the concerns of both law enforcement agencies and civil society organisations about the effectiveness of the sars regime in practice, particularly with respect to the lack of reports from key non-financial sectors.58 this point is starkly highlighted in the 2015 transparency international (ti) report entitled don’t look, won’t find (ti don’t look report) which found that the current regulatory system for financial services, accountancy, legal services, luxury goods, property and trust and company service providers 52 the fatf recommendations: international standards on combating money laundering and the financing of terrorism and proliferation, (fatf, 2012) 7. 53 ibid. 54 ibid, see recommendations 22 and 23. 55 these provisions reflect similar requirements to recommendation 20 contained in an earlier set of fatf recommendations. 56 phase 4 report, para 39. 57 ibid para 40. 58 in this context the “designated non-financial businesses and professions.” the denning law journal 123 “relies on a patchwork of 22 different supervisors – mostly private sector institutions – to ensure that firms abide by the rules. it is this system that is structurally unsound.”59 this point is taken up by the wgb lead examiners who note that “the absence of detection of foreign bribery cases by the ukfiu is of great concern, considering the money laundering and bribery risks in the uk” and that this is a “further demonstration of the lack of effectiveness of the reporting regime as it stands.”60 reflecting the recommendations in the ti don’t look report, the wgb lead examiners called upon the uk to “respond to the concerns voiced on the effectiveness of the sars regime…” 61 in this regard, a key recommendation in the ti don’t look report is particularly helpful: the uk government should review the arrangements for supervision in the uk and evaluate options for consolidating the number of anti-money laundering supervisors. the review should examine the merits of replacing the existing patchwork and inconsistent structure of multiple supervisors with a single, wellresourced ‘super’ supervisor.62 this is yet another area where the wgb is likely to carry out a follow-up study. 4. identifying the beneficial ownership of companies in 2015, transparency international published a report entitled corruption on your doorstep63 (ti doorstep report). its key findings highlighted the significance of property holdings by companies registered in off-shore jurisdictions, and particularly in the cds/ots: • 40,725 london property titles were held by foreign companies. • 89 per cent of these titles were held by companies incorporated in secrecy jurisdictions, covering approximately 2.25 square miles of london property. 59 transparency international, don’t look, won’t find: weaknesses in the supervision of the uk’s anti-money laundering rules (transparency international, london 2015) 2. 60 phase 4 report, commentary, p 22. 61 ibid. 62 transparency international (n 59) 6 63 transparency international, corruption on your doorstep: how corrupt capital is used to buy property in the uk (transparency international, london 2015) legal commentary 124 • more than one third of all foreign companies holding london property were incorporated in the british virgin islands (13,831 properties), this was followed by jersey with 14 per cent (5,960 properties), the isle of man with 8.5 per cent (3,472 properties) and guernsey with 8 per cent (3,280 properties). • almost one in ten properties in the city of westminster (9.3 per cent), 7.3 per cent of properties in kensington & chelsea and 4.5 per cent in the city of london were owned by a company registered in an offshore secrecy jurisdiction.64 whilst it is perfectly lawful for an off-shore company to be the registered owner of real estate in the uk, it was argued in the ti doorstep report that: [t]he prevalence of uk property holdings by companies incorporated in secrecy jurisdictions is a major barrier to law enforcement investigations of grand corruption and effectively prevents estate agents’ due diligence checks for money laundering and their compliance with international sanctions.65 the crucial challenge here is seeking to identify the beneficial ownership of companies incorporated in the off-shore secrecy jurisdictions. this is emphasised in phase 4 report, where the wgb lead examiners highlighted the views of uk law enforcement agencies that the “opacity of current beneficial ownership arrangements is a significant barrier to tackling money laundering, bribery and corruption and to successfully recovering stolen assets.”66 in this respect, the wgb lead examiners noted two “welcome developments.” firstly, the small business, enterprise and employment act 2015 provides for the establishment of a public register of “persons with significant control” which is designed to identify the ultimate beneficial owner(s) and controllers of most uk companies and limited liability partnerships (llps).67 as from 30 june 2016, this information must be declared in the annual return or “confirmation statement” of such 64 ibid 3. 65 ibid 4. 66 phase 4 report, para 116. the wgb lead examiners quote the metropolitan police service as estimating that “in cases where hidden beneficial ownership is an issue, 30-50% of an investigation can be spent in identifying the beneficial owners through a chain of ownership ‘layers’”: see phase 4 report, para 92. 67 incorporated as part 21a of the companies act 2006. the denning law journal 125 companies and llps. whilst not commenting on the point, the wgb lead examiners also noted that the views of several civil society organisations of the need to further regulate beneficial ownership of land and real estate.68 this reflects the helpful recommendation in the ti doorstep report that any foreign company intending to hold a property title in the uk should be held to the same standards of transparency required of uk registered companies.69 a recommendation to the uk from the wgb to implement this approach would have been helpful. secondly, in 2016 a series of exchange of notes (en) was signed between the uk and each individual cd and several ots in respect of the sharing of beneficial ownership information. each cd and ot (referred to as a ‘participant’ in each en) agrees to: [e]stablish a central database of beneficial ownership which will contain adequate, accurate and current beneficial ownership information on corporate and legal entities. in addition, each participant is to establish a “designated point of contact” to receive and respond to requests for beneficial ownership information. unless otherwise agreed, such information must be provided within twentyfour hours of receiving the request or within an hour if the matter is urgent.70 whilst there is currently no move for cds and ots to introduce a public register of beneficial ownership (however desirable this will be), this is a major step forward towards assisting law enforcement agencies to investigate allegations of foreign bribery and money laundering through facilitating the identification of the beneficial ownership of off-shore companies and trusts. these are major achievements which were rightly welcomed by the wgb lead examiners. however, the effectiveness of the arrangements in practice remains to be seen and the recommendation that the wgb followup on the implementation of the information exchange is entirely appropriate. 5. multiple prosecutions in foreign bribery cases investigating the bribery of foreign public officials inevitably requires cooperation between several jurisdictions. this emphasises the importance 68 phase 4 report, para 118. 69 transparency international (n 63) 4. 70 see, for example, the exchange of notes between the government of the united kingdom and the government of jersey which came into force on 4 april 2016, paras 4 and 7. legal commentary 126 of effective mutual legal assistance arrangements between states. it also raises the question as to which is the most appropriate jurisdiction for prosecuting (or agreeing settlements with) those corporate entities allegedly involved in paying the foreign bribes. this is particularly relevant in the case of the uk bribery act 2010 and the united states foreign corrupt practices act 1977 (fcpa), both of which contain wide jurisdictional provisions.71 in cases where a number of states have the right to prosecute a corporate entity, article 4(3) of the oecd convention provides that the “parties involved shall, at the request of one of them, consult with a view to determining the most appropriate jurisdiction for prosecution.” there is no obligation to consult and the provision does not apply to non-parties. this raises the possibility of a corporate entity facing “carbon copy prosecutions” (or other enforcement action) in multiple states, including the state or states most affected by the bribe payments with the prospect of the company facing significant multiple financial penalties.72 this risk was duly noted by the wgb lead examiners who emphasised that there was a need for active collaboration between jurisdictions to agree a global settlement. however, they took the view that the issues and challenges were beyond the scope of the evaluation and was a matter for the parties to the convention to address. this is a curious approach particularly because the issue is directly connected to article 4(3) of the convention. it is certainly one that is likely to raise concerns for corporate legal advisers when advising their corporate clients on whether or not to self-report. 6. the bribery act 2010 and the ministry of justice guidance in line with the requirements of article 1 of the oecd convention, section 6 of the bribery act 2010 (ba 2010) creates a discrete offence of bribing a foreign official. section 7 makes it an offence for a commercial organisation to fail to prevent bribery by a person associated with it. this is subject to the defence that the commercial organisation had adequate 71 for a full discussion see nicholls et al, ch 3, paras 3.17 et seq and ch 20, paras 20.21 et seq. 72 indeed this may have a chilling effect on self-reporting of foreign bribery by companies in circumstances where they are required to reveal full details of their bribe-paying activities and may then face the prospect of the information being used against them in other states affected by their criminal activities: see further hatchard (n 27) 131 where examples of the issue are discussed. see generally, andrew s boutros and t markus frank, “‘carbon copy’ prosecutions: a growing anti-corruption phenomenon in a shrinking world” [2012] university of chicago legal forum 259. the denning law journal 127 procedures in place to prevent bribery. section 9 requires the secretary of state to publish “guidance” about procedures that commercial organisations can put in place to prevent bribery. in march 2011 2011 the ministry of justice published its guidance to commercial organisations (moj guidance) with a view to the act coming into effect on 1 july 2011.73 in its phase 3 report on the uk, the wgb had made a series of recommendations concerning two aspects of the moj guidance.74 these recommendations were re-visited in the phase 4 report. the first addressed issues relating to the treatment of hospitality and promotional expenditures with a recommendation that the uk clarify problematic hypothetical examples in the moj guidance. here the wgb lead examiners noted that the moj guidance had not been amended in line with the phase 3 recommendation. the second recommendation concerned the need for a consistent definition of facilitation payments. here they noted that in response to the phase 3 recommendation, in 2012 the sfo had issued new guidance regarding facilitation payments75 and that the uk continues to provide no exception for facilitation payments. however, they expressed concern that the uk had not amended the different definitions of facilitation payments found in other documents such as the moj guidance. they therefore considered the wgb recommendation to be partially implemented. on a more positive note, the wgb lead examiners note that section 7 ba 2010 has been the basis for criminal liability in four cases, with three companies entering into dpas and a fourth pleading guilty. perhaps more significantly, they recognise that the section appeared to have had a positive influence with uk companies adopting “sophisticated compliance measures to prevent bribery.”76 this is encouraging as it highlights the crucial importance of having anti-bribery measures in place that are sufficiently persuasive that even the most economically powerful 73 ministry of justice, the bribery act 2010: guidance about procedures which commercial organisations can put into place to prevent persons associated with them from bribing (section 9 of the bribery act 2010). <https://www.justice.gov.uk/downloads/legislation/bribery-act-2010guidance.pdf> accessed 19 june 2017. 74 oecd phase 3 report on implementing the oecd anti-bribery convention in the united kingdom (oecd, paris 2012) paras 20-26. <http://www.oecd.org/daf/anti-bribery/unitedkingdomphase3reporten.pdf> accessed 19 june 2017. 75 sfo bribery act guidance 2012. available at <https://www.sfo.gov.uk/publications/guidance-policy-andprotocols/bribery-act-guidance/> accessed 19 june 2017. 76 phase 4 report, commentary, 80. legal commentary 128 companies are prepared to introduce and maintain effective corporate compliance regimes. 7. the potential impact of brexit the uk is closely involved with the european union policies on law enforcement. for example, the uk is part of networks such as europol and eurojust whilst in may 2017 the european investigation order came into force which promises to enhance the effectiveness of mutual legal assistance between eu states.77 there is no doubt that such cooperation has greatly assisted in the investigation of foreign bribery and money laundering cases. given this background, it is not surprising that the potential impact of brexit on the ability of the uk to carry out its oecd convention obligations was viewed by the wgb lead examiners with great concern. they emphasised that the “uk’s participation in eu criminal and policing arrangements and networks has contributed to boost enforcement in the uk in the foreign bribery arena (and beyond).” in particular they noted that “overall, commentators agree that brexit is likely to lead to a reduction in cooperation in criminal and policing matters between the uk and the eu.”78 more generally, it might be added that there is a clear danger that in order to find new business, uk companies may be forced to move into new markets and countries which carry with them a greater risk of foreign bribery. only time will tell as to the extent of the impact of brexit and in view of this, the wgb lead examiners recommended that the wgb “follow up on the developments in this area to review their possible impact on the uk’s foreign bribery enforcement, and recommend that the uk report on developments in this respect”79 4. “how well are we doing?”: the verdict transparency international has rightly stated that the wgb review process is “the ‘gold standard’ of monitoring and evaluation to ensure that governments stick to their commitments to enforce anti-corruption 77 for details see european commission press release 22 may 2017. 78 phase 4 report, para 198. 79 ibid commentary, 74. the denning law journal 129 legislation.”80 this view is reinforced in the wgb phase 4 review of the uk. just as with the previous wgb reviews on the uk, the phase 4 report is an impressive document providing a detailed analysis of the position regarding the uk’s compliance with its oecd convention obligations, as well as providing a critical review on its response to earlier wgb recommendations. overall, the phase 4 report demonstrates that the uk continues to make progress in implementing the convention. this echoes the response of the uk to the phase 4 questionnaire that the 2017 uk anti-corruption strategy will “reaffirm the uk’s commitment to the oecd anti-bribery convention and will explore the scope to address any areas of concern in relation to domestic implementation.” further, that the “strategy is likely to maintain the uk’s strong commitment to encouraging new countries to join the convention and existing members to fully implement the convention.”81 a recurring feature of the phase 4 report is its recognition of the importance and increasing effectiveness of the sfo in tackling foreign bribery and the laundering of the proceeds of corruption as well as the fact that it receives widespread support from the legal profession and civil society organisations. as a result, some of the most significant recommendations in the phase 4 report are designed to protect the independence of the sfo and to further enhance its effectiveness. it is to be hoped that the uk will not tarnish its commitment to the oecd convention by rejecting these views and proceeding to incorporate the sfo into the nca. the development of mechanisms to facilitate the detection of foreign bribery offences is also highlighted in the phase 4 report. of particular note here is the self-reporting of wrongdoing by companies and the use of dpas; the introduction of a public register of beneficial ownership of uk based companies; and the taking of steps to ensure the cds and ots are more actively involved in tackling foreign bribery and money laundering. these are dramatic and very positive developments which promise both to deter, and to facilitate the detection of, foreign bribery. even so, questions remain as to how and when dpas will be approved. the failure of the uk to address fully some previous wgb recommendations continues to cause concern. in one way, this demonstrates the weakness of the entire review process i.e. the fact that the wgb cannot require parties to implement its recommendations. however, 80 referred to in the oecd working group on bribery, annual report 2006, (oecd, 2007) 2. 81 phase 4 report, para 12. legal commentary 130 the on-going follow-up process at least ensures that pressure is maintained on the uk to take the necessary steps to implement the recommendations. during the on-site visit to the uk, the wgb lead examiners met with a wide range of civil society organisations. 82 indeed frequent reference is made in the phase 4 report to their views with their role in investigating and exposing foreign bribery being warmly praised.83 this highlights the vital contribution that such organisations can make not only towards a transparent and effective review process but also to keeping the uk’s commitment to the convention under constant scrutiny. this point takes on a wider significance in that there is a continued reluctance on the part of some states parties to the united nations convention against corruption to enable civil society organisations to play a full part in the work of the conference of the states parties (cosp) 84 and the convention review process known as the implementation review mechanism (irm). this is particularly disappointing especially in that the irm is a far less intrusive exercise than that undertaken by the wgb. indeed the positive contribution of such organisations to individual country reviews is also a feature of other regional anti-corruption review mechanisms. 85 hopefully, this will encourage all state parties to the uncac to strengthen the irm by enabling civil society organisations to play an effective role in the operation, oversight and implementation of the convention. so, in answer to the question “how well are we doing”, the response is that the uk has made some encouraging progress since the phase 3 review. however, the wgb is not going to go away and the uk is now required to submit a written report to it in two years on the implementation of all the recommendations in the phase 4 report as well as its enforcement efforts. it would be good to report in 2019 that the uk has fully implemented all the wgb recommendations. 82 annex 2 to the phase 4 report contains a list of participants in the on-site visit. these include a wide range of private sector organisations; business associations, civil society organisations, the media and academics. 83 see, for example, para 50. 84 the cosp was established under article 63 of the uncac to “improve the capacity of and cooperation between states parties to achieve the objectives set forth in the convention and to promote and review its implementation”: see further nicholls et al, chapter 16, para 16.178 et seq. 85 civil society organisations are deeply involved in the mesicic monitoring process of the inter-american convention against corruption and the monitoring of the council of europe anti-corruption conventions by group of states against corruption (greco): see further nicholls et al chapter 24, para 24.30. the denning law journal 167 denning law journal 2019 vol 31 pp 167-186 escaping the sunken place: indefinite detention, asylum seekers and resistance in yarl’s wood irc aidan seymour-butler* * llm student at trinity college dublin. 1 the law society, ‘failures in uk immigration and asylum undermine the rule of law’ (the law society, 12 april 2018) <https://www.lawsociety.org.uk/news/pressreleases/failures-in-uk-immigration-and-asylum-undermine-the-rule-of-law/> accessed 14 april 2018. 2 paul hamilos, ‘asylum centre wrecked by fire’ (the guardian, 15 february 2002) < h t t p s : / / w w w . t h e g u a r d i a n . c o m / u k / 2 0 0 2 / f e b / 1 5 / i m m i g r a t i o n . immigrationandpublicservices4> accessed 30 april 2018; simon cox, ‘whistleblower’s concerns over safety at yarl’s wood’ (bbc news, 24 june 2014) <https://www.bbc.com/ news/uk-27906730> accessed 30 april 2018; danny shaw, ‘yarl’s wood: years of misery and controversy’ (bbc news, 10 june 2015) <https://www.bbc.com/news/uk-33043395> accessed 30 april 2018. 3 bbc news, ‘yarl’s wood removal centre of ‘national concern’’ (bbc news, 12 august 2015) <http://www.bbc.com/news/uk-33871283> accessed 8 april 2018. introduction in 2018, the law society of england and wales raised concerns about the united kingdom’s migration system, stating that ‘failures in uk immigration and asylum undermine the rule of law’.1 nowhere are those problems more apparent than in the united kingdom’s handling of migrants and asylum seekers in detention centres. a particular recurring issue that speaks to the law society’s concern is the absence of a defined time limit for immigration detention. the possibility of indefinite detention has been a source of tension both within british politics and within uk immigration detention centres. an example of this can be understood with reference to the yarl’s wood immigration removal centre (irc) in bedfordshire, known for its controversial and rebellious past.2 in 2015 nick hardwick, a former chief prisoner inspector, labelled the centre a place of ‘national concern’, after examining the mistreatment of vulnerable detainees.3 yarl’s wood’s problematic history seems to have continued into the present, following a detainee-led hunger strike that resulted in ‘renewed concerns’ over health care in detention https://www.lawsociety.org.uk/news/pressreleases/failures-in-uk-immigration-and-asylum-undermine-the-rule-of-law/ https://www.lawsociety.org.uk/news/pressreleases/failures-in-uk-immigration-and-asylum-undermine-the-rule-of-law/ https://www.bbc.com/news/uk-27906730 https://www.bbc.com/news/uk-27906730 https://www.bbc.com/news/uk-33043395 http://www.bbc.com/news/uk-33871283 h t t p s : / /www. t h e g u a r d i a n . c om/ u k / 2 0 0 2 / f e b / 15 / immi g r a t i o n .immigrationandpublicservices4 https://www.theguardian.com/uk/2002/feb/15/immigration.immigrationandpublicservices4 168 escaping the sunken place: indefinite detention, asylum seekers and resistance in yarl’s wood irc centres.4 in addition to protesting the standard of medical treatment received by detainees, the strikers’ underlying focus was on indefinite detention.5 the home office’s response to these strikes was unsympathetic. in reaction to the strikes, the home office sent detainees letters suggesting that their continued participation in the strike may in fact result in their removal being accelerated.6 although the hunger strike ended in march 2018, the home office’s response to the strike raised some interesting legal and philosophical questions about human rights and resistance in detention centres. in order to grapple with some of these issues, this article is in two parts. part one seeks to contextualise the existing immigration regime and explore how legal disputes might fit within the broader scheme of opposing indefinite detention. it will also briefly examine the legal challenges that may arise from the use of threats of accelerated deportations. part two explores the lack of power and agency that detainees experience in immigration detention centres, due to a deprivation of control or ability to determine their own circumstance. it is argued that such a state of powerlessness can be likened to the fictional sunken place popularised by jordan peele’s film ‘get out’. in the film, the sunken place serves as an allegory for a state of incarceration and helplessness as the ‘victim’ loses the ability to interact with the physical world.7 in order to make the comparison more appropriate the article analyses blog posts written by detainees in yarl’s wood irc. in addition, by using the words of detainees themselves, the article seeks to ensure that their perspective of detention is given due regard. the article then investigates the role that political resistance can play in detention centres as a means of escaping the sunken place, and relies on the work of hannah arendt, as well as other commentators, to justify such a position. 4 dexter erin and cornelius katona, ‘hunger strike renews concerns over health in uk detention centres’ (british medical journal, 29 march 2018) <https://www.bmj.com/ content/360/bmj.k1446.full > accessed 8 april 2018. 5 detained voices, ‘22 feb 2018 – the protest is about their system of indefinite detention’ (detained voices, 22 february 2018) < https://detainedvoices.com/2018/02/22/ the-protest-is-about-their-system-of-indefinite-detention/> accessed 8 april 2018. 6 busby eleanor, ‘home news home office tells women they will be deported more quickly for hunger striking’ (the independent, 4 march 2018) <https://www.independent. co.uk/news/uk/home-news/yarls-wood-home-office-women-deported-more-quicklyhunger-strike-a8239611.html> accessed 8 april 2018. 7 alex rayner, ‘trapped in the sunken place: how get out’s purgatory engulfed pop culture’ (the guardian, 17 march 2018) <https://www.theguardian.com/film/2018/ mar/17/trapped-in-the-sunken-place-how-get-outs-purgatory-engulfed-pop-culture> accessed 30 april 2018. https://www.bmj.com/content/360/bmj.k1446.full https://www.bmj.com/content/360/bmj.k1446.full https://detainedvoices.com/2018/02/22/the-protest-is-about-their-system-of-indefinite-detention/ https://detainedvoices.com/2018/02/22/the-protest-is-about-their-system-of-indefinite-detention/ https://www.independent.co.uk/news/uk/home-news/yarls-wood-home-office-women-deported-more-quickly-hunger-strike-a8239611.html https://www.independent.co.uk/news/uk/home-news/yarls-wood-home-office-women-deported-more-quickly-hunger-strike-a8239611.html https://www.independent.co.uk/news/uk/home-news/yarls-wood-home-office-women-deported-more-quickly-hunger-strike-a8239611.html https://www.theguardian.com/film/2018/mar/17/trapped-in-the-sunken-place-how-get-outs-purgatory-engulfed-pop-culture https://www.theguardian.com/film/2018/mar/17/trapped-in-the-sunken-place-how-get-outs-purgatory-engulfed-pop-culture the denning law journal 169 part one: overview of law and history of immigration detention centres this section provides both a brief overview of immigration detention in britain, as well as a short history of yarl’s wood. the section will then discuss potential legal challenges to the current immigration detention system. yarl’s wood in context yarl’s wood is a ‘purpose built’ irc that predominantly holds female detainees and operates under the detention centre rules 2001 (discussed below). it opened in 2001 and is capable of housing approximately 400 detainees.8 the centre appears to hold a combination of asylum seekers and other migrants and, according to statistics from 2016, 46% of people in detention were asylum seekers.9 yarl’s wood has been the subject of various reports which revealed a high level of mental health problems among detainees, as well as issues of self-harm and repeated allegations of incidents of sexual harassment and abuse by the centre’s staff.10 recent reports into health care at yarl’s wood have also begun to raise fears about damage to the mental health of vulnerable detainees. certainly, in connection with the hunger strike that took place at yarl’s wood, indefinite detention and mental health were major issues raised by strikers.11 on 22 february 2018 the yarl’s wood hunger strikers began their protest and put forth 15 demands that included an end to indefinite detention;12 access to proper health care; and an end to the systematic torture that was taking place in detention centres.13 the response from the home office came in a letter addressed to the hunger strikers stating that the fact that detainees were refusing food and liquid may cause their cases to be accelerated, thereby expediting their 8 independent monitoring board, annual report of the independent monitoring board at yarl’s wood immigration removal centre: annual report 2016 (26 june 2017) 3. the independent monitoring board is a statutory-based organisation which monitors the dayto-day life in local prisons or removal centres and ensures that proper standards of care and decency are maintained. 9 erin and katona (n 5). 10 marchu girma and others, i am human: refugee women’s experiences of detention in the uk (women for refugee women 2015) 2. 11 detained voices, ‘22 feb 2018 – the hunger strikers’ demands’ (detained voices, 22 february 2018) <https://detainedvoices.com/tag/yarls-wood/> accessed 8 april 2018. 12 detained voices, ‘22 feb 2018 – the protest is about their system of indefinite detention’ (n 6). 13 ibid. https://detainedvoices.com/tag/yarls-wood/ 170 removal from the united kingdom.14 before examining the significance of resistance by detainees, it is important to explore the existing regime of immigration detention and analyse any potential legal challenges. detention and immigration law it is crucial to note that immigration law is a combination of statutory instruments, home office policy, royal prerogative and rules that have a quasi-legal status.15 the power to detain for ‘administrative purposes’ was introduced into british immigration law by the immigration act 1971 (ia).16 since its introduction, it has been relied upon by the state and appears to have become a routine measure in immigration control.17 the powers to detain are predominately contained in sections 3, 4 and 5, and schedules 2 and 3 of the act; however, they have been subject to regular updates.18 one such reform was the nationality, immigration and asylum act 2002 (niaa). its main policy objective was aimed at normalising detention by instituting reception, accommodation and removal centres as an ordinary part of the immigration examination process.19 another role that detention appears to play is in the ‘criminalisation of mobility’.20 for example, detention is used to hold convicted foreign-nationals after they have served their prison sentences while they are being considered for removal or deportation; and used to hold people found guilty of ‘immigration offences’ such as overstaying and illegal entry, while they are considered for removal.21 some commentators suggest that the united kingdom’s current use of detention is contrary to international law, since detention should only be used as a last resort. this is considered in more detail later on. it is important to 14 eleanor (n 7). 15 ian macdonald and ronan toal, macdonald’s immigration law & practice volume 1 (9th edn, lexis nexis 2014) 31. 16 ibid. 17 amnesty international, a matter of routine: the use of immigration detention in the uk (amnesty international united kingdom section 2017) 5. 18 in relation to reforms of detention powers, these are immigration and asylum act 1999; nationality, immigration and asylum act 2002; uk borders act 2007; immigration act 2014; and immigration act 2001. 19 macdonald and toal (n 16). 20 alessandro de giorgi, ‘immigration control, post-fordism, and less eligibility: a materialist critique of the criminalization of immigration across europe’ (2010) 12(2) punishment & society 147–167. 21 mary bosworth, ‘subjectivity and identity in detention: punishment and society in a global age’ (2012) 16(2) theoretical criminology 124, 140; see also immigration act 1971, s 24. escaping the sunken place: indefinite detention, asylum seekers and resistance in yarl’s wood irc the denning law journal 171 recognise that detention itself is not a punitive measure, otherwise it could be found to be in conflict with article 31 of the refugee convention, which prohibits penalisation for illegal entry or presence of those persons who are seeking protection or are recognised as asylum seekers.22 detention is currently allowed for three statutory purposes.23 firstly, to examine a person’s immigration status.24 secondly in order to implement a person’s administrative removal from the united kingdom,25 and thirdly in order to implement a person’s deportation from the united kingdom.26 there is an important difference between administrative removal and deportation. removal occurs where one’s claim for a right to abode or leave to remain is unsuccessful, whereas deportation occurs where it is ‘conducive to the public good’.27 although the use of detention is restricted by availability of space, as well as the need for a rational justification, and human rights compliance,28 it is not restricted by a time limit.29 the possibility of indefinite detention in the united kingdom separates it from most of its european union counterparts due to the fact that the united kingdom chose to opt out of the eu returns directive, which places a time restraint on detention.30 arguably, it is this nonexistence of a defined time limit that is the subject of greatest controversy.31 legal challenges to indefinite detention in confronting the risk of indefinite detention, it is possible to seek judicial review of the policy on the basis that it is ‘unreasonable’ or that it is in contravention of the human rights act 1998. a human rights review of indefinite detention would 22 convention relating to the status of refugees (adopted 28 july 1951, entered into force 22 april 1954) 189 unts 137 (refugee convention). 23 amnesty international (n 18) 9. 24 immigration act 1971, s 4; sch 2 paras 2 and 3. 25 immigration act 1971, s 4 and sch 2 paras 8, 9, 10, 12, 13, 14 and 16. 26 immigration act 1971, s 3, s 5 and sch 3 para 2. 27 ibid. 28 human rights act 1998, s 6(1): ‘it is unlawful for a public authority to act in a way which is incompatible with a convention right.’ 29 except in cases involving children or pregnant women. see immigration act 2014, s 6(2), in relation to unaccompanied minors, and immigration act 2016 s 60(4), in relation to pregnant women. 30 erin and katona (n 5). 31 rob merrick, ‘theresa may faces tory revolt over the indefinite detention of immigrants’ (the independent, 27 january 2018) <https://www.independent.co.uk/news/ uk/politics/theresa-may-immigration-detention-home-office-tory-revolt-amendmenttime-limit-a8179846.html> accessed 8 april 2018. https://www.independent.co.uk/news/uk/politics/theresa-may-immigration-detention-home-office-tory-revolt-amendmenttime-limit-a8179846.html https://www.independent.co.uk/news/uk/politics/theresa-may-immigration-detention-home-office-tory-revolt-amendmenttime-limit-a8179846.html https://www.independent.co.uk/news/uk/politics/theresa-may-immigration-detention-home-office-tory-revolt-amendmenttime-limit-a8179846.html 172 likely be argued on the grounds of a breach of article 3 or 5 of the european convention of human rights (echr). article 3 contains an absolute right not to be subject to ‘torture or to inhuman or degrading treatment or punishment’ while article 5 provides for a qualified right to ‘liberty’. both pathways face a different and difficult struggle against the status quo. article 5 challenge the right to liberty is only infringed where a deprivation of liberty has occurred in an unlawful or arbitrary manner.32 moreover, it must be remembered that article 5(1)(f) allows for detention as a form of ‘immigration control’: the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. under article 5 there are two potential arguments that could be pursued. the first is that detention without any safeguards is unlawful, and the second is that the lack of a time limit makes any detention arbitrary. with regard to the first argument, all detention in the united kingdom is primarily justified on the basis that there is a ‘presumption of liberty’ that the government must rebut.33 the fact that detention must be justified reduces the chance that it could be opposed as unlawful or arbitrary. the use of detention is also limited by the restrictive opportunities for bail review,34 and the hardial singh principles, which state that: a. the secretary of state must intend to deport the person and can only use the power to detain for that purpose; b) the deportee may only be detained for a period that is reasonable in all the circumstances; c) if, before the expiry of the reasonable period, it becomes apparent that the secretary of state will not be able to effect the deportation within that reasonable period, he should not seek to exercise the power of detention; and d) the secretary of state should act with the reasonable diligence and expedition to effect removal.35 32 chahal v united kingdom [1997] 23 ehrr 413 [118]. 33 khawaja v secretary of state for the home department [1983] ukhl 8 [62]. lord scarman quoting lord atkin ‘that in english law every imprisonment is prima facie unlawful and that it is for a person directing imprisonment to justify his act’. 34 macdonald and toal (n 16) 1629 para 18.8. 35 r v governor of durham prisons, ex p hardial singh [1984] 1 wlr 704 (qbd); see escaping the sunken place: indefinite detention, asylum seekers and resistance in yarl’s wood irc the denning law journal 173 the ‘reasonableness’ requirements in the hardial principles may be considered as a guard against lawful detention becoming arbitrary over time. as a result, requiring that a person is only detained for a ‘reasonable period’ appears to suggests there is formal but unclear limit on detention, and that detention in the united kingdom is not prima facie indefinite. however, the interpretation of ‘reasonable time’ has been very broad in domestic courts and the european court of human rights (ecthr).36 in chahal, the ecthr established the absolute principle of non-refoulement in article 3 cases concerning deportation to a country where the applicant faces a risk of torture. however, chahal also found that a fiveyear period of detention was not a breach of article 5 where the secretary of state acted with due diligence.37 it appears that where a state acts reasonably, and with due diligence the length of detention is inconsequential. this finding has led to the criticism that persons in immigration detention experience a ‘second class right to liberty’.38 the un high commissioner for refugees (unchr) guidelines support the argument that indefinite detention for immigration purposes is arbitrary as a matter of international human rights law.39 the unchr’s justification for its position is based on two cases, a. v australia and mukong. in the first case, the un human rights committee (hrc) considered that the length of time in detention, coupled with the inability to review, could give rise to arbitrariness.40 this case does not appear to suggest condemnation of an indeterminate time period for detention, but rather a confirmation that absence of review procedures can result in detention being arbitrary. the second case of mukong appears to carry more weight as a rationalisation as it emphasised factors such as unpredictability and inappropriateness as elements of arbitrary detention.41 nevertheless, these arguments are not concrete precedents since both the uk supreme court and the ecthr have found that time limits on detention are not also lumba (wl) v secretary of state for the home department [2011] uksc 12 (23 march 2011) [22]. 36 chahal (n 33). 37 ibid., 123. 38 chloe marong, ‘protecting the public? challenging the indefinite preventive detention of non-citizens’ (2014) 3(1) ucl journal of law and jurisprudence’ 115, 123. 39 unhcr guidelines on the applicable criteria and standards relating to the detention of asylum-seekers and alternatives to detention (2012). 40 un human rights committee, a. v australia ccpr/c/59/d/560/1993 (3 april 1997) <http://www.refworld.org/cases,hrc,3ae6b71a0.html> accessed 10 april 2018, [9.2]. 41 un human rights committee, mukong v cameroon communication no. 458/1991 (21 july 1994) <http://www.refworld.org/cases,hrc,4ae9acc1d.html> accessed 10 april 2018, [9.8]. http://www.refworld.org/cases,hrc,3ae6b71a0.html http://www.refworld.org/cases,hrc,4ae9acc1d.html 174 required for compatibility with the right to liberty.42 current case law appears to suggest that an article 5 challenge to indefinite detention would not succeed solely on the basis that the lack of a time limit is unlawful, so long as the appropriate opportunities for review exist.43 article 3 challenge a successful article 3 challenge must demonstrate that holding individuals in detention without a defined time limit amounts to either ‘torture or to inhuman or degrading treatment or punishment’. this section begins by examining the difference between torture and inhumane and degrading treatment, before analysing the kind of conduct that may amount to a breach of article 3. it then explores whether there is any evidence to support the argument that indefinite detention in the united kingdom may violate protections provided by article 3. as a result of reviewing case law and reports by ngos it is argued that indefinite detention poses a serious threat to detainees’ mental health, which may amount to degrading treatment. ‘the distinction between torture, inhuman and degrading treatment’ indefinite detention is more likely to amount to inhuman or degrading treatment rather than torture. this is because torture requires actual or intense mental harm.44 the ecthr states that treatment which humiliates, debases or shows a want of respect for, or diminishes human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance can be characterised as degrading.45 similarly, lord bingham in the house of lords stated that ‘[t]reatment is inhuman or degrading if, to a seriously detrimental extent, it denies the most basic needs of any human being’.46 furthermore, it is important to recognise that inhumane or degrading treatment considers personal characteristics and that the ecthr has recognised that asylum 42 r (on the application of nouazli) (appellant) v secretary of state for the home department (respondent) [2016] uksc 16; j.n. v the united kingdom app no 37289/12 (ecthr, 19 may 2016). 43 ibid.; see also machnikowski v secretary of state for the home department [2015] ewhc 54 (admin) [80–104]. 44 pretty v uk [2002] 35 ehrr 1. 45 ibid., 52. 46 r (adam and limbuela) v secretary of state for the home department [2005] ukhl 66 [7]. escaping the sunken place: indefinite detention, asylum seekers and resistance in yarl’s wood irc the denning law journal 175 seekers are particularly vulnerable.47 on the question of whether the treatment is inhuman, degrading or both, it is potentially easier to prove that indefinite detention amounts to degrading treatment. this is in part due to the fact that degrading treatment appears to have a lower threshold of harm,48 and because the treatment need only be seen as degrading in the eyes of the victim.49 additionally, there is no need for the state to have a positive intention to humiliate or debase the complainant.50 however, although there is evidence suggesting that indefinite detention can lead to mental harm serious enough to be considered inhumane, it is more difficult to prove that that is the case collectively, since not every detainee will experience the same levels of mental stress. thus, the stronger argument appears to lie in claiming that the treatment is degrading. as regards proving violations of article 3 in the context of mental health, the ecthr has been more inclined to find that a breach has occurred where there is evidence that detention caused an applicant’s mental health to deteriorate. in order to demonstrate that detention has caused harm to their mental health, successful applicants have provided evidence that detention caused a deterioration of their mental health and well-being;51 that the mental care facilities in detention were inadequate;52 that detention was unsuitable for an already vulnerable individual;53 or that detention exacerbated an existing mental health condition.54 reports and evidence for an article 3-based challenge before examining the evidence in detail, it is necessary to consider the distinction between harm caused by detention in general, and harm caused by indefinite detention. although many of the reports described herein provide a scathing indictment against the current detention system, the subsisting argument relevant to indefinite detention is that the longer detention lasts, the more likely serious mental harm will occur and that the stress of not knowing when detention will end creates or exacerbates mental disorders such as depression or anxiety. as a result the evidence considered in this article focuses on how a deficiency in providing defined time limits for detention affects detainees’ mental health. 47 mss v belgium and greece [2011] 53 ehrr 28. 48 bouyid v belgium app no 22380/09 (ecthr, 28 september 2015) [112]. 49 ibid. 50 romanov v russia app no 63993/00 (ecthr, 20 october 2005). 51 ibid. 52 slawomir musiał v poland app no 28300/06 (ecthr, 20 january 2009). 53 zh v hungary app no 28973/11 (ecthr, 8 november 2012). 54 bamouhammad v belgium app no 47687/13 (ecthr, 17 november 2015). 176 the british medical association (bma) has recognised that a major issue for detainee health is the fact that ‘a large number of individuals score at “clinically significant” levels for depression and anxiety’.55 even where detainees did not reach a clinical threshold it was noted that, ‘every person in detention faces some challenge to their mental health or wellbeing and experiences psychological and emotional distress’.56 in relation to yarl’s wood, a home office-commissioned review, led by stephen shaw, found that around 90% of detainees’ accessed health care every day, and ‘very many women’ were taking antidepressants.57 he also highlighted a number of issues, stating that the mental health care was not fit for purpose, during detention detainees felt afraid to complain, and if they did they were not taken seriously, and that detention had psychological effects even after it ended.58 shaw recommended that the use of detention be decreased, and that there should be more reform in order to protect vulnerable detainees.59 in addition to shaw’s findings, there are also findings from a review of article 3 breaches by jeremy johnson qc, and mary bosworth’s literature review on the impact of immigration detention on mental health. in his review, johnson found that there was a particular need to focus on the provision of health care and the detention review process.60 furthermore, the five breaches johnson reviewed seemed to all follow a trend, where detention was found to exacerbate existing mental health conditions up to the point that would constitute inhuman or degrading treatment to keep the persons in detention.61 bosworth’s literature review established that across all the different bodies of work and jurisdictions, detention (i) has a negative impact on mental health and that this increases the longer detention persists; (ii) that asylum seekers are particularly vulnerable; and (iii) that there are three predominant forms of mental disorder related to immigration detention: depression, anxiety and post-traumatic stress disorder (ptsd).62 bosworth’s review also suggested that the effects of detention continue 55 british medical association medical ethics committee, locked up, locked out: health and human rights in immigration detention (british medical association 2017) 19. 56 ibid. 57 stephen shaw, review into the welfare in detention of vulnerable persons (cm 9186, 2016), para 3.133. 58 ibid., para 3.140. 59 ibid., 193–198. 60 ibid. 61 ibid., 291–293. 62 ibid.; see also erin and kotona (n 5). escaping the sunken place: indefinite detention, asylum seekers and resistance in yarl’s wood irc the denning law journal 177 even after detention has ended.63 the conclusion to be drawn from these reports, as well as from reports by amnesty international, detention action64 and the un committee against torture,65 is that the practice of indefinite detention poses a serious problem for united kingdom’s obligation to refrain from breaching article 3 rights as the practice appears to consistently be accused of being psychologically harmful to detainees who are already uniquely vulnerable. although there is consistent opinion that the use of detention causes harm, which is then exacerbated by its indefiniteness, it is still not clear whether that maltreatment might translate into ‘degrading treatment’. deportation row as stated above, in order for treatment to be degrading it must diminish human dignity, arouse feelings of fear or anguish, and can be degrading from the perspective of the complainant, which is a subjective standard. in relation to indefinite detention it is important to consider the factors as cumulative in order to make it degrading. features include the uncertainty of when detention will end; the vulnerability of asylum seekers; the indications that that the majority of detainees are not removed; the evidence of the effect detention has on well-being; and length of time spent in detention that can range from a month to more than two years.66 it is also valuable to consider how those in detention describe their experience of being ‘helpless institutionalised victim[s]’,67 ‘constantly on edge’68, as well as the anxiety placed on both their own lives and the lives of their family members.69 indefinite detention can be found to be degrading treatment in the same way as the ‘death row phenomenon’ was found to be inhumane.70 the phrase ‘death row phenomenon’ is usually used without precision, but it typically alludes to the 63 ibid., 305. 64 jerome phelps and others, the state of detention: immigration detention in the uk in 2014 (detention action, 2014). 65 un committee against torture, ‘concluding observations on the fifth periodic report of the united kingdom, adopted by the committee at its fiftieth session’ (6–31 may 2013) cat/c/gbr/5 para 30. 66 amnesty international (n 18) 36. 67 detained voices, ‘22 feb 2018 – so to give you an update on the events regarding our strike’ (detained voices, 22 february 2018) <https://detainedvoices.com/tag/yarlswood/> accessed 8 april 2018. 68 detained voices, ‘22 feb 2018 – the hunger strikers’ demands’ (n 12). 69 amnesty international (n 18) 43. 70 soering v united kingdom [1989] 11 ehrr 439. https://detainedvoices.com/tag/yarlswood/ https://detainedvoices.com/tag/yarlswood/ 178 unique stress experienced by prisoners on death row.71 a satisfactory definition will usually account for delay, uncertainty and conditions of imprisonment.72 in soering, the ecthr did not find that the death penalty in itself was an act that violated article 3 but rather it was the risk of exposure to the death row phenomenon.73 similarly, in the case of indefinite detention it is neither the act of detention, nor administrative removal or deportation that is unlawful, but rather the circumstances in which a particularly vulnerable person is forced to suffer the debasing agony of insecurity, fear and mental distress. admittedly there are some flaws in this argument. firstly, detention centres in the united kingdom and prisons in the united states may not be suitable comparators. secondly, the length of delays and level of acceptable of injury caused by awaiting execution are already accepted as grave by international law,74 whereas the harm caused by indefinite detention has not been as frequently acknowledged in the international discourse. however, making the argument that indefinite detention is closer to being degrading rather than inhuman treatment allows for some manoeuvrability in terms of the gravity of the ill-treatment required. consequently, the risk of exposure to mental suffering in the case of immigration detention may be enough to demonstrate that confinement without time limits is degrading. yet, this is a far from definitive conclusion. solutions and alternatives although the ‘deportation row’ argument may not be enough to demonstrate a breach of article 3, it appears that ending the practice of indefinite detention is in the interest of the uk government. the home office has ‘rule 35 reviews’ which are intended to guard against detaining people who suffered torture or people ‘whose health is likely to be injuriously affected by continued detention or any conditions of detention’.75 however, the shaw review found that these reviews are not fit for purpose.76 although his follow-up report suggests improvements are occurring in connection to mental health treatment, he remained concerned that 71 patrick hudson, ‘does the death row phenomenon violate a prisoner’s human rights under intentional law?’ (2002) 11(4) european journal of international law 833–856. 72 ibid.; see also reprieve, ‘death row phenomenon: the psychological impact of living in the shadow of execution’ (reprieve) <https://reprieve.org.uk/death-row-phenomenonpsychological-impact-shadow-execution/> accessed 11 april 2018. 73 soering (n 71). 74 hudson (n 72). 75 detention centre rules 2001. 76 shaw (n 58). escaping the sunken place: indefinite detention, asylum seekers and resistance in yarl’s wood irc https://reprieve.org.uk/death-row-phenomenon-psychological-impact-shadow-execution/ https://reprieve.org.uk/death-row-phenomenon-psychological-impact-shadow-execution/ the denning law journal 179 some time may be necessary for meaningful change to take place.77 furthermore, reforms like the revision of chapter 55.10 of the enforcement instructions and guidance (eig) and the ‘adult at risk policy’ are still not adequately addressing the long-term mental health deterioration that occurs as a result of indefinite detention.78 even though it is possible to improve the current regime by addressing the issues surrounding cynical decision making and bureaucratic inertia,79 a more cost-effective and risk-averse solution would be to place time limits on detention.80 moreover, arguments made under article 3 may have more success as there is a range of cross-party and ngo support81 for bringing an end to the practice on this basis. for example, the bma has called for detention to be replaced with a more humane alternative and for detention to have clear time limits, in order to avoid breaching article 3.82 a parliamentary inquiry into detention has also suggested the introduction of a time limit as well as an increase in the use of community-based solutions.83 currently immigration detention has also been labelled as ‘malfunctioning and unnecessary’, by amnesty international. during 2016 only 21% of detainees were actually removed from the united kingdom.84 consequently, the question must be asked that if a significant number of detainees are released, why not limit their subjection to such treatment whether it is degrading or not. with the cost of detaining people amounting to £80 per night and the price of immigration detention totalling more than £523.5 million between 2014 and 2017, it appears that the choice to detain irregular or illegal migrants is expensive and ineffective.85 detention may also come at a cost to detainees as their 77 stephen shaw, ‘assessment of government progress in implementing the report on the welfare in detention of vulnerable persons: a follow-up report to the home office by stephen shaw’ (cm 9661, 2018), para 3.151–3.154. 78 amnesty international (n 18); home office, immigration act 2016: guidance on adults at risk in immigration detention (home office, 2018). 79 shaw (n 58) 302. 80 ibid., 191. 81 amelia gentleman, ‘mps call for end to indefinite detention of migrants’ (the guardian, 3 march 2015) <https://www.theguardian.com/uk-news/2015/mar/03/mpscall-end-indefinite-detention-migrants> accessed 10 april 2018. 82 british medical association (n 56) 11. 83 all party parliamentary group on refugees & the all party parliamentary group on migration, the report of the inquiry into the use of immigration detention in the united kingdom: a joint inquiry (2015). 84 independent monitoring board (n 9). 85 may blum, ‘more than £500m spent on uk immigration detention over four years’ (the independent, 5 february 2018) <https://www.independent.co.uk/news/uk/homenews/uk-immigration-detention-centre-cost-taxpayer-brexit-eu-migrants-a8195251.html> https://www.theguardian.com/uk-news/2015/mar/03/mpscall-end-indefinite-detention-migrants https://www.theguardian.com/uk-news/2015/mar/03/mpscall-end-indefinite-detention-migrants https://www.independent.co.uk/news/uk/homenews/uk-immigration-detention-centre-cost-taxpayer-brexit-eu-migrants-a8195251.html https://www.independent.co.uk/news/uk/homenews/uk-immigration-detention-centre-cost-taxpayer-brexit-eu-migrants-a8195251.html 180 source of income and their family lives may be disrupted by the precariousness of being detained. as a result, it is necessary for the united kingdom to consider alternatives to detention. two potential types of alternatives to detention that warrant examination are enforcement-based alternatives and engagement-based alternatives.86 enforcement-based alternatives are less coercive than detention and consist of more traditional substitutes to detention such as registration, reporting and residency conditions.87 engagement-based alternatives attempt to involve migrants in the immigration process in order to promote cooperation.88 alternatives may include placing a migrant within the community with an assigned case manager who helps provide the individual with information and updates about the migration process.89 the ngos such detention action and the international detention coalition (idc) encourage the use of more engagement-based alternatives centred on the community assessment and placement (cap) models which places an emphasis on detention as a last resort and seeks to ensure respect for minimum standards and the right to liberty.90 an existing uk project that takes advantage of improved screening and case management is the detention community action project. the project conducts a risk assessment to determine eligibility through multiple interviews.91 additionally, the project provides a project coordinator and a structured post-release case management plan that helps manage the risk of absconding and re-offending.92 the project coordinator helps explain why an individual is being summoned for an interview. the purpose of the project coordinator is intended to act as a liaison which helps to improve trust and communication between the government and the migrant.93 the increased use of alternatives promoted and supported by civil society may have multiple benefits to society at large. alternatives can be more cost efficient than detention and accessed 20 july 2018; stephanie j. silverman and melanie e. b. griffiths, ‘immigration detention in the uk’ (migration observatory briefing, compas, university of oxford, uk, may 2018). 86 eiri ohtani and jerome phelps, without detention: opportunities for alternatives (detention action 2016) 19. 87 ibid. 88 ibid., 20. 89 ibid., 19. 90 r sampson and others, there are alternatives: a handbook for preventing unnecessary immigration detention (revised) (international detention coalition 2015) v. 91 ibid., 51. 92 ibid. 93 ibid., 52. escaping the sunken place: indefinite detention, asylum seekers and resistance in yarl’s wood irc the denning law journal 181 encourage the respect of human rights and minimum standards which may decrease the chance of an article 3 or 5 challenge.94 alternatives also help to protect the migrant’s mental health from unnecessary duress and allow them to feel like they have more control in the immigration process. furthermore, where the migrant has a family it allows them to continue to receive support while their status is being decided. legal challenges to accelerated removal identifying a nexus between the warnings issued to detainees for their participation in a hunger strike and an article 3 violation is difficult. a particular obstacle is that there has not been a ‘test case’ and it is not likely that one will be brought since the hunger strike ended as many of the original group of hunger strikers were either deported or released.95 it still remains possible to argue that the threat amounted to a breach of article 3.96 however, the threshold is high as it not only that the victim must see themselves as humiliated but they must also experience mental suffering severe enough that it gives rise to ill-treatment.97 even though it may be easy to demonstrate that the detainees felt degraded by the home office’s threat, without evidence that actual harm was experienced, it remains unlikely that such an argument will succeed. part two: the theoretical implications legal routes might not be able to provide the desired outcome of ending these practices for, as upendra baxi suggests, ‘[c]ourts are … never a substitute for direct political action, including mass politics of direct action’.98 although, the legal pathways may be uncertain, the detainees themselves may have the power to act against their circumstances and affect their situation even if they do not 94 ibid., 6. 95 detained voices, ‘21 march 2018 – today marks the 28th day since we began our strike here in yarl’s wood’ (detained voices, 21 march 2018) < https://detainedvoices. com/2018/03/21/today-marks-the-28th-day-since-we-began-our-strike-here-in-yarlswood/> accessed 8 april 2018. 96 campbell and cosans v united kingdom [1982] 4 ehrr 293 [26–30]. 97 ibid. 98 upendra baxi, ‘the avatars of indian judicial activism: explorations in the geographies of injustice’ in sk verma and kusum kumar (eds), fifty years of the supreme court of india: its grasp and reach (indian law institute) 164. https://detainedvoices.com/2018/03/21/today-marks-the-28th-day-since-we-began-our-strike-here-in-yarlswood/ https://detainedvoices.com/2018/03/21/today-marks-the-28th-day-since-we-began-our-strike-here-in-yarlswood/ https://detainedvoices.com/2018/03/21/today-marks-the-28th-day-since-we-began-our-strike-here-in-yarlswood/ 182 succeed in achieving their demands. detainee strike action in yarl’s wood may be important to help them reclaim their humanity and independence. the sunken place and detention centres indefinite detention can be compared to the sunken place. the sunken place is a plane of existence where a person’s mind is separated from their body resulting in them only being able to see the world but not interact with it. on twitter, peele elaborated on the concept by stating that ‘[t]he sunken place means we’re marginalized. no matter how hard we scream, the system silences us’.99 while peele’s comment, like his film, are more of a commentary on race relations in the united states, it can similarly be applied to those asylum seekers being held in detention centres. they are separated from society, labelled as an ‘outsider group’,100 and have no knowledge or control over their detention or removal. they remain in an indefinite state of powerlessness and uncertainty. one detainee articulated the frustration that arises from such a state as, ‘[i]nside the detention centre you don’t feel you have any rights. they keep telling us we need to go back to our country’.101 another detainee described detention as, ‘[t]hat’s who you are. you’re just in limbo…. .’ you’re just in limbo now and you don’t know what’s going to come from day to day’.102 although some in the social science field argue that the act of detention serves as a tool of exclusion and alienation,103 it could be contended that the home office’s policy goes beyond such segregation. the home office’s threat of accelerated removal serves as an attempt to deprive detainees of their power to act, ensuring that they remain ostracised and silent. evidently the home office has tried to ensure that detainees remain in the sunken place. however, just like the protagonist in peele’s film, the detainees can also escape the sunken place by using continued resistance. options include using meaningful speech and 99 ross lincoln, ‘get out’ director jordan peele explains “the sunken place”’ (the wrap, 16 march 2017) <https://www.thewrap.com/get-out-director-jordan-peele-explainsthe-sunken-place/> accessed 10 april 2018. 100 patricia tuitt, race, law, resistance (1st edn, glasshouse press 2004) 2. 101 detained voices, ‘november 18 2017 – inside the detention centre you don’t feel you have any rights’ (detained voices, november 18 2017), <https://detainedvoices. com /2017/11/18/inside-the-detention-centre-you-dont-feel-you-have-any-rights/> accessed 8 april 2018. 102 amnesty international (n 18). 103 giuseppe campesi, ‘hindering the deportation machine: an ethnography of power and resistance in immigration detention’ (2015) 17 (4) punishment & society 428–453. escaping the sunken place: indefinite detention, asylum seekers and resistance in yarl’s wood irc https://www.thewrap.com/get-out-director-jordan-peele-explains-the-sunken-place/ https://www.thewrap.com/get-out-director-jordan-peele-explains-the-sunken-place/ https://detainedvoices.com/2017/11/18/inside-the-detention-centre-you-dont-feel-you-have-any-rights/ https://detainedvoices.com/2017/11/18/inside-the-detention-centre-you-dont-feel-you-have-any-rights/ the denning law journal 183 action so that those in detention can re-experience and restore their autonomy, and their humanity.104 an ‘arendt-based framework’ arendt suggests that totalitarianism tries to abolish people’s humanity before taking away their rights and destroying their lives.105 as alluded above, once detainees enter detention they feel like they do not have any rights. this feeling of rightlessness seems reminiscent of arendt’s concept of the need ‘to have the right to have rights’. arendt conceives of two types of rights: civic rights like those found in human rights instruments and the ‘right to have rights’.106 the latter, she describes as a right to ‘a place in the world which makes opinions significant and actions effective’.107 arendt states in the context of the decline of the nation-state and the end of human rights, that ‘man, it turns out, can lose all so-called rights of man without losing his essential quality as man, his human dignity. only the loss of a polity itself expels him from humanity’.108 thus, when a person is excluded from the right of engaging in the world they are deprived of their own humanity. the home office’s letter threatening accelerated removal for participation in a hunger strike has the potential of making the detainees absolutely ‘rightless’. the home office’s policy attempts to deprive of detainees of their voices and therefore their place in the polis and excludes them from even being able to fight for freedom. had the detainees’ protests and the strikes ended immediately, they would have been dispossessed of their humanity, as arendt suggests ‘a life without speech and without action … has ceased to be a human life because it is no longer lived among men’.109 one detainee’s account captures such a state of powerlessness and disenfranchisement: even if we can approach people in here, no one will do anything because they are part of the home office… . please take action to talk to the home office. 104 lucy fiske, ‘human rights and refugee protest against immigration detention: refugees’ struggles for recognition as human’ (2016) 32(1) refuge: canada’s journal on refugees 18–27. 105 serena parekh, ‘a meaningful place in the world: hannah arendt on the nature of human rights’ (2004) 3(1) journal of human rights 41–53. 106 fiske (n 105) 20. 107 hannah arendt, the origins of totalitarianism (2nd ed, harcourt, brace 1973), 296. 108 ibid., 297. 109 hannah arendt, the human condition (2nd ed, university of chicago press 1958) 176. 184 our voices aren’t heard because we are in here… help us out there, to get our voices out. it’s important that people can hear our anger.110 the references to ‘in here’ and ‘out there’ seem to substantiate the idea that a life of detention is the life of being a mere object in the world. it is an existence where one is free to call out ‘hear me’, but without an answer. such speech remains ineffective and leaves the detainee with no way to effectively engage in and with the world. however, the home office’s letter and continued indefinite detention has not prevented the detainee’s from revealing their humanity.111 their continued resistance has inserted them into the world.112 through strike action they demand to be judged for who they are and not what they are. as to be treated only as an ‘asylum seeker’ results in only ever being considered as an ‘approximation of their humanity’, and not as a distinct individual.113 arendt proposes that the basic conditions of effective speech and action require what appear to be two contradictory notions, equal treatment and distinction.114 on the one hand, arendt suggests that equal treatment is necessary in order for humans to be able to plan and understand each other.115 on the other hand, distinction appears to be necessary condition as without it neither speech nor action would be required to communicate as all humans would be the same.116 it is through the detainees’ own action and view of humanity that they hold onto their autonomy and thus convince the public of their distinctness and demand to be treated as equally and not as a mere object in the world. the desire to stay human through protest and hunger strikes those in detention ascend their ordinary status. accepting that action is the political activity par excellence,117 when combined with the ‘detained voices’ blog, it gives detainees an effective voice and impact in the world. fiske suggests that asylum seekers are often portrayed as either villains or victims, but not as cognisant agents in mainstream discourse.118 yet migrant 110 detained voices, ‘22 feb 2018 – the protest is about their system of indefinite detention’ (n 6). 111 arendt (n 110) 176. 112 ibid. 113 fiske (n 105) 20. 114 arendt (n 110), 175. 115 ibid. 116 ibid. 117 ibid., 9. 118 fiske (n 105) 19. escaping the sunken place: indefinite detention, asylum seekers and resistance in yarl’s wood irc the denning law journal 185 detainees can challenge this narrative. through speech and action the migrant in detention articulates their claims as universal. the uk migrant desires to be recognised as human, and that longing is not contained to those detained in yarl’s wood119 but is an international experience that stretches from italy,120 to australia,121 to israel.122 it is based on a claim of universal humanity. detainees try to appeal, to not only the government, but to the citizens of the state as well.123 an example is one yarl’s wood detainee who expressed their gratitude to protestors who visited the centre in a message entitled ‘to the wonderful people of planet earth’.124 it is not only clear that detainees recognise that, as reynold’s claims, humanity is not something that can be juridically taken away,125 but also that there is a power in invoking rights associated with humanity as a mode of resistance.126 by pulling on the emancipatory force of progressive political rights language, asylum seekers who are excluded from society reject their abjection.127 detainees draw from the very same liberal norms upon which the community they wish to join is based, and challenge their segregation as hypocritical. or as one detain phrases it: we do have hope that people are starting to wake up to what is really happening in this country that likes to present itself to the rest of the world as a leader in human rights and civil liberties.128 119 detained voices, ‘march 1 – we are on a hunger strike because we are suffering unfair imprisonment and racist abuse in this archaic institution in britain’ (detained voices, march 1 2018). <https://detainedvoices.com/2018/03/01/we-are-on-a-hungerstrike-because-we-are-suffering-unfair-imprisonment-and-racist-abuse-in-this-archaicinstitution-in-britain/> accessed 8 april 2018. 120 campesi (n 104). 121 fiske (n 105). 122 al jazeera news, ‘deportation or prison: israel’s african asylum s seekers’ (aljazeera, 3 march 2018) <https://www.aljazeera.com/programmes/talktojazeera/ inthefield/2018/03/deportation-prison-israel-african-asylum-seekers-180302143018483. html> accessed 10 april 2018. 123 fiske (n 105) 19. 124 detained voices, ‘to wonderful people on planet earth!’ (detained voices, 24 march 2018) <https://detainedvoices.com/2018/03/24/to-wonderful-people-on-planet-earth/> accessed 8 april 2018. 125 john reynolds, empire, emergency and international law (1st edn, cambridge university press 2017) 54. 126 ibid., 273. 127 ibid. 128 detained voices, ‘21 march 2018 – today marks the 28th day’ (n 96). https://detainedvoices.com/2018/03/01/we-are-on-a-hungerstrike-because-we-are-suffering-unfair-imprisonment-and-racist-abuse-in-this-archaicinstitution-in-britain/ https://detainedvoices.com/2018/03/01/we-are-on-a-hungerstrike-because-we-are-suffering-unfair-imprisonment-and-racist-abuse-in-this-archaicinstitution-in-britain/ https://detainedvoices.com/2018/03/01/we-are-on-a-hungerstrike-because-we-are-suffering-unfair-imprisonment-and-racist-abuse-in-this-archaicinstitution-in-britain/ https://www.aljazeera.com/programmes/talktojazeera/inthefield/2018/03/deportation-prison-israel-african-asylum-seekers-180302143018483.html https://www.aljazeera.com/programmes/talktojazeera/inthefield/2018/03/deportation-prison-israel-african-asylum-seekers-180302143018483.html https://www.aljazeera.com/programmes/talktojazeera/inthefield/2018/03/deportation-prison-israel-african-asylum-seekers-180302143018483.html https://detainedvoices.com/2018/03/24/to-wonderful-people-on-planet-earth/ 186 it is through exposing liberal hypocrisy and political action that those in detention ensure their humanity even when others are not willing to act. by guaranteeing that their voices are heard, even at the risk of the destruction of their own bodies, detainees guarantee their place in the world and forcibly escape the sunken place. conclusion resistance to indefinite detention is composed of many routes. although challenges based on article 5 are likely to fail, article 3 disputes show real promise. however, the problem with an article 3 challenge is that it is unlikely that detention by itself is enough to give rise to a finding of degrading or inhumane treatment. on the other hand, if the court considers the cumulative effect of detention without time limits on mental health, then it seems clear the policy may be challenged along lines of the risk of a breach to article 3. additionally, even if the courts do not find that article 3 is breached by the mere fact or threat of indefinite detention, it seems the removal of such a practice benefits the united kingdom. moreover, it appears to be clear that without actual evidence of harm, a challenge to the threat of accelerated removal cannot be properly assessed until a test case is brought. however, from a theoretical perspective it can be established that opposition to detention within the detention centres plays an important role in giving detainees a sense of autonomy; especially in a centre like yarl’s wood which holds the most vulnerable detainees. it is clear that indefinite detention can be brought to an end by increasing the use of detention alternatives. alternatives such as the detention action community project could address the major issues explored within this article. the increased use of alternatives that screen and place migrants within the community accompanied by the appropriate support may be useful to both prevent exposure to unnecessary mental stress and encourage respect for migrants’ autonomy and humanity. the adoption of alternatives to detention may also address the problems associated with indefinite detention as issues of permission to stay and removal may be conducted without exposing potential asylum seekers to the state of limbo associated with irc detention centres. as pressure for immigration reform, both within and outside the irc centres, begins to amass, it is apparent that the system needs to change in order to ensure that human lives and rights are respected. escaping the sunken place: indefinite detention, asylum seekers and resistance in yarl’s wood irc human rights, 'arranged' marriages and nullity law: when do 'force', parental 241 denning law journal 2015 vol 27 pp 241-257 the problem of the non-justiciability of religious defamations peter smith  introduction english law has long held the principle that religions should be free from interference by the state in certain matters. the original 1215 edition of the magna carta proclaimed, as its first article, ―that we have granted to god, and by this present charter have confirmed for us and our heirs in perpetuity, that the english church shall be free, and shall have its rights undiminished, and its liberties unimpaired.‖ 1 this article was intended to protect the established catholic church from the powers of the state, specifically from interference in church elections by the executive in the form of the person of the monarch. the notion that religions were institutions with practices and beliefs that were outside the control of the state in certain respects was adopted by the common law and is found in modern times in the principle of nonjusticiability on the matter of religion in certain types of civil case. 2 in recent years, the position has been summarised as ―the courts will not attempt to rule upon doctrinal issues or intervene in the regulation or governance of religious groups.‖ 3  employed barrister, carter-ruck, 6 st andrew street, london, ec4a 3ae. 1 ‗english translation of magna carta‘ (british library)<www.bl.uk/magnacarta/articles/magna-carta-english-translation> accessed 7 july 2015. specifically, the article protected the ‗freedom of the church‘s elections‘: ‗this freedom we shall observe ourselves, and desire to be observed in good faith by our heirs in perpetuity.‘ this was reiterated in the final peroration at article 63: ‗it is accordingly our wish and command that the english church shall be free...‘ 2 also known as the ‗―non-interference‖ principle‘: see russell sandberg, law and religion (cup 2011) 74-76. it does not apply to the church of england as the established church: see mark hill, russell sandberg and norman doe, religion and law in the united kingdom (2nd edn, wolters kluwer 2014) 76. 3 blake v associated newspapers limited [2003] ewhc 1960 (qb) [5] (eady j). http://www.bl.uk/magna-carta/articles/magna-carta-english-translation http://www.bl.uk/magna-carta/articles/magna-carta-english-translation the problem of the non-justiciability of religious defamations 242 religion…is not the business of government or of the secular courts…the starting point of the law is an essentially agnostic view of religious beliefs and a tolerant indulgence to religious and cultural diversity… it is not for a judge to weigh one religion against another. all are entitled to equal respect. 4 this non-interference has been described as both active, ―through the express grant and preservation of rights of self-determination, selfgovernance and self-regulation‖, and passive, ―through non-interference on the part of organs of state such as national government local or regional government or the secular courts. in the united kingdom there is no systematic provision made for autonomy of religious organizations and, in the main, a self-denying ordinance of neutrality may be said to predominate.‖ 5 one area of law where the passive conception has been particularly adopted is in the law of defamation. this is, perhaps, surprising: many religions specifically proscribe libel and particularly slander as forms of wrongdoing. in the bible, the psalmist prays, ―set a watch, o lord, before my mouth; and a door round about my lips‖. 6 the book of proverbs warns, ―he that utterth a slander, is a fool‖ 7 and ―do not slander a slave to his master, or he will curse you and you will be found guilty.‖ 8 st matthew records jesus telling his listeners, ―but i tell you that every careless word that people speak, they shall give an accounting for it in the day of judgment.‖ 9 despite these injunctions, english law, which has otherwise been so deeply rooted in christian principle, does not reflect this prohibition when it comes to the matter of religion and libel, as it did until recently with blasphemy and as it does with defamation generally. 10 this is partly 4 sulaiman v juffali [2001] ewhc 556 (fam) [47] (munby j). 5 doe, religion and law in the united kingdom (n 2). 6 psalms 143:3. 7 proverbs 10:18. 8 proverbs 30:10. 9 matthew 12:36. 10 blasphemy was long a common law and statutory offence which defied neat definition, see the law commission, offences against religion and public worship (working paper 79 1981) 5-6: ‗there is no one agreed definition of blasphemy and blasphemous libel‘ – but it is often characterised as the defamation of religion. prosecutions for blasphemy became increasingly rare; the last by the crown was in 1922 and the only other prosecution before the crime was abolished by criminal justice & immigration act 2008, s 79 was a private the denning law journal 243 the cultural product of the reformation. the sectarian violence of the period gradually gave way to the acceptance of religious difference in the liberal state, which had neither the knowledge nor the desire to investigate the truth of what were ultimately profound differences in belief between catholic, anglican and non-conformist theology. 11 how could a court decide when a catholic labelled a protestant a heretic, for instance, or when one methodist described another as schismatic? when the courts did intervene, it was only because of the implied or explicit accusation of another wrong that accompanied a religious libel. it was, for instance, once an actionable libel to call a person a ―papist‖ and allege that they went to mass, because of the imputation of criminality and disloyalty that was implied by the accusation. 12 gradually, public opinion has changed and it is clearly no longer the case today that, in england, being catholic carries the same implied sting in the minds of the public. 13 defamation law applied to religion is unstable and, as both a cause and a symptom of the cultural shift towards freer speech, defamation law itself has also changed markedly in very recent years. the pendulum has swung away from the right to reputation and towards free expression with the coming into force of the defamation act 2013. this introduced the hurdle of proving a statement has caused or is likely to cause ―serious harm‖ to the reputation of the claimant. 14 it has also reformulated some of the substantial defences to a claim for libel in the new statutory defences prosecution in 1978. see the history of the crime in the house of lords‘ judgments in whitehouse v lemon; whitehouse v gay news ltd [1979] 2 wlr 281 (hl). 11 sandberg, law and religion (n 11) ch 2. sandberg describes four phases in the historical development of religion and law: the ‗temporal-spiritual partnership‘ which followed the norman conquest; ‗the era of discrimination and tolerance‘ which resulted from the reformation; the ‗epoch of toleration‘ which followed the glorious revolution; and ‗the current age of positive religious freedom‘ stemming from the 1998 human rights act. 12 row v sir thomas clargis (1681) 83 er 252. 13 other common law jurisdictions, however, have a different culture against which to judge the imputation of a libel. in chen cheng v central christian church [1999] 1 sing lr 94 sing (ca), it was held that calling a church a ‗cult‘ was defamatory because in singapore the word was a pejorative one, meaning a religious group with teachings and practices that are abhorrent and harmful to society. see richard parkes and others, gatley on libel and slander (12th edn, sweet & maxwell 2013) ch 2, fn 213. 14 on the background to the 2013 act, see ch 1 of james price qc and felicity mcmahon, blackstone’s guide to the defamation act 2013 (oup 2013). the problem of the non-justiciability of religious defamations 244 of truth, honest opinion and publication on matter of public interest, introduced new defences, and extended existing ones. 15 the uk supreme court decision in shergill v khaira presents a challenge to the principle of non-justiciability in the case of religious defamation. 16 the application of the principle in the case of blake v associated newspapers ltd was ―not…correct‖. 17 courts should not decline jurisdiction on the grounds of religion, even if they raise questions of doctrine and ecclesiology, if the claim is grounded in a valid cause of action such as libel: ―the court will enter into questions of disputed doctrine if it is necessary to do so in reference to civil interests‖. 18 this decision ostensibly gives the court jurisdiction to decide deep questions of religion and opens to claimants the right to vindicate their reputation when previously such an action would have been denied to them. however, this boon for claimants may be countered by an extension of the defence of honest opinion for defendants, as the supreme court itself notes. 19 defamation actions in religious contexts generally it has been suggested that there are four types of dispute that include a ―religious dimension‖. 20 15 formerly, the defences of justification, fair comment, and responsible journalism. new defences include protection for the operators of websites and for peer-reviewed statements in scientific or academic journals. extended defences include reports protected by privilege. see blackstone’s guide to the defamation act 2013, chs 3-9. 16 [2014] uksc 33, hereafter ‗khaira‘. 17 [2003] ewhc 1960 (qb). 18 ibid [57]. 19 ‗the problem that such defamation claims face, which will usually doom them to failure, is that they raise issues of religious opinion on which people may hold opposing views in good faith. the expression of such views without malice is likely to be protected by the defence of honest comment – what used, until joseph v spiller [2011] 1 ac 852, to be called fair comment.‘ ibid. 20 alastair mullis and andrew scott, ‗how to know the truth: accommodating religious belief in the law of libel‘ (hereafter, ‗mullis and scott‘) ch 8 in james richardson and francois bellanger (eds), legal cases, new religious movements, and minority faiths (ashgate 2010). also available at lse law, society and economy working papers 9/2012: <www.lse.ac.uk/collections/law/wps/wps2012-09_scott.pdf> accessed 8 july 2015. the denning law journal 245 first, general criticism of religions which, if deemed offensive to followers of the religion, may be caught by group defamation or blasphemy laws. general criticism of a religion does not found an action for libel unless a particular follower can establish that the criticism applies to him, however. 21 this is why it is not actionable as a tort for a priest to sue on the allegation that all catholics are child-abusers, nor for an imam to bring a claim against the publisher because of the assertion that all muslims are terrorists, although criminal law may apply. 22 second specific allegations may be caught when made against particular individuals alleging that they have failed to meet prescribed standards or expectations of behaviour, e.g. that they have sinned against the religion. but individuals impugned in this way are perhaps more likely to use internal dispute resolutions than secular courts, in a bid to stay within the organisation. 23 there are two further sorts of religious dispute which have historically led to libel actions that invoke the secular law. these are when general criticisms are made of a religion coupled with specific, associated criticism of a particular person such that they can sue, or when criticism of the religion is made without a basis in religious doctrine. these forms are 21 in english law, there must be specificity before a person, whether legal or natural, can bring a defamation action. on the need for sufficient reference to the claimant, see orme v associated newspapers, the times 4 february 1981 (comyn j). the judge held that an article about the moonies was capable of referring to the leader in england of that new minority religion. in that case, the grave charges must have been capable of referring to the plaintiff if only because people might say that he must have known what went on. see hardeep singh, ‗religious libel: are the courts the right place for faith disputes?‘ (hereafter, ‗religious libel‘) 152-54, ch 9 in legal cases, new religious movements, and minority faiths, ibid; and mullis and scott (n 20) fn 9, 134. 22 an exceptional case is ortenburg v plamondon (1914) 24 quebec kb 69, decided under the civil law of quebec but referring to common law cases, the defendant, in a lecture delivered in the city of quebec, violently assailed and abused the jewish race, its religious doctrines and social practices, the object being to put the public of quebec on guard against the jews of quebec, who numbered only 75 families in a total population of 80,000 souls. it was held that although not assailed individually, the plaintiff, being one of the ‗‗restricted collectivity‘‘ of the jews of quebec, was entitled to maintain an action of defamation against the defendant. see gatley on libel and slander (n 13) 7.97.10. 23 see frank otuo v the watchtower bible and tract society of britain [2013] (unrep but available at <https://inforrm.wordpress.com/table-of-cases-2/> accessed 1 july 2015) (hhj moloney qc) for an example of where the expulsion of a jehovah‘s witness member triggered a libel claim. https://inforrm.wordpress.com/table-of-cases-2/ the problem of the non-justiciability of religious defamations 246 distinguished from each other by asking ―whether or not the imputations at issue rest upon a doctrinal dispute‖. 24 there are many examples of allegations being made without a basis in religious doctrine, as noted above. 25 it has been held defamatory to state of an archbishop of the church of ireland that he has attempted to convert a catholic priest to protestantism by an offer of £1,000 in cash and a living of £800 a year, 26 or to state of a clergyman that he is guilty of immorality or drunkenness, 27 or that he preaches sedition, 28 lies, 29 or that he knows less about his religion than an adolescent, 30 or that he has used his pulpit to throw out personal invectives against a member of the congregation, 31 or that he has juggled with the collections, 32 or that he has desecrated a part of his church by turning it into a cooking department. 33 indeed, the religious context of an accusation can be taken into account, even if the action is without a basis in religious in doctrine. 34 if the allegation is that a clergyman preached false doctrine, it will be defamatory if, in the circumstances, it imputed hypocrisy. but if the defendant belonged to a different church to the claimant and the churches 24 mullis and scott (n 20) 141. 25 see gatley on libel and slander (n 13) 2.40, from where the following examples are drawn. more recent examples include sharma v sharma [2014] ewhc 3349 involving allegations of criminality after the defendant was replaced by the claimant on the board of a national hindu charity. 26 archbishop of tuam v robeson (1828) 5 bing 17. 27 payne v beaumorris (1661) 1 lev 248; evans v gwyn (1844) 5 qb 844; gallwey v marshall (1853) 9 exch 294; stow v gardner (1843) 6 up can qb (os) 512; steltzer v domm [1932] 2 wwr 139. words which, if directed against another would not be defamatory may be so if directed against a clergyman, because of the nature of the calling: murphy v harty, 393 p 2d 206 (or 1964). 28 cranden v walden (1693) 3 lev 17. 29 phillips v badley (1582) cited 4 co rep at 19a; drake v drake (1652) style 363. 30 maidman v jewish publications (1960) 54 cal 2d 643. 31 edwards v bell (1824) 1 bing 403. 32 curtis v argus (1915) 155 ny s 813; dr sibthorp‘s case (1628) w jones 366. 33 kelly v sherlock (1866) lr 1 qb 686. 34 maccaba v lichtenstein [2004] ewhc 1580 (qb) [9] (gray j). however, in another religious slander case albeit one under a different statutory regime, the claimant‘s declaration that she had been expelled from her religious congregation and had been unable to join another, was not actionable absent proof of special damage: roberts v roberts 16 (1864) 5 b&s 384. the denning law journal 247 are in disagreement about the doctrine, it will not be an actionable tort. 35 this key distinction is at the heart of the non-justiciability problem. the khaira litigation in the lower courts khaira was one of a number of suits (along with baba jeet v singh 36 and shergill v purewal) 37 that stemmed from the overspill of a dispute in india to the sikh community in the uk. 38 the underlying dispute concerned the declaration of a mahant, or religious superior of a dera (monastery) in the punjab, known in proceedings as the first holy saint, that he was a living guru and so a religious leader of great importance to sikhs. the order he founded, the nirmal kutia johal, set up three gurdwaras in the uk, in bradford, birmingham and high wycombe. he died in 2001 and was succeeded in short order by the second and then third holy saint. 39 in khaira, eight of the appellants contended that they had been validly appointed as trustees of the three gurdwaras by the third holy saint. they sought declarations that this was done under the relevant trust deeds, which allowed the first holy saint ―and his successor‖ to remove and appoint trustees. the respondents, the original trustees of the gurdwaras, argued that the third holy saint had no power to remove and appointed trustees of the gurdwaras. the judge at first instance dismissed the defendants‘ application for strike out on the grounds of non-justiciability, considering that the legal question of the construction of the deeds required ―not an establishment of the propriety or the validity of a process by which the [third holy saint] may have succeeded to come to be regarded as holding the office of holy saint but whether, as a matter of fact, he has become sufficiently recognised as the holder of that office to be considered to be a person 35 see dod v robinson (1648) aleyn 63; gatley on libel and slander (n 13) fn 417. 36 [2010] ewhc 1294 (qb). aka his holiness sant bab jeet singh ji maharaj v (1) eastern media group limited (2) hardeep singh 37 [2010] ewhc 3610 (qb). 38 for a brief exposition of the sikh community in the uk, see singh ‗religious libel‘ (n 21) 157. singh himself was a defendant (along with his publisher, the sikh times) in the libel case of baba jeet v singh, when he was sued by the third holy saint. he explains the background to the religious dispute at 158-165. 39 the background facts are set out in the court of appeal judgment shergill v khaira [2012] ewca civ 983 [28] – [36] (mummery lj), and in khaira (n 16) [2] – [11]. the problem of the non-justiciability of religious defamations 248 described as having a particular power in the english deed, the construction of which is before the court [emphasis added].‖ 40 if the third holy saint was accepted as de facto ―successor‖ by a sufficient number of adherents of the nirmal kutia johal, even if a minority disagreed, then that would be enough to make appropriate findings of fact and construe the documents accordingly. the court of appeal was invited to reject this approach on a number of bases, including whether the standpoint adopted by the judge, which purported to be objective, from the perspective of english law and without a view on sikh doctrine or practice, was skewed in accepting that the third holy saint could be de facto ―successor‖ without being de jure ―successor‖ to the first holy saint in the eyes of the sikh religion. 41 in mummery lj‘s view (giving the sole judgment, joined by hooper and pitchford ljj), the decision in buttes gas and oil v hammer (no 3) 42 as sufficient authority for the proposition that, if a purportedly secular dispute on the construction of a deed in english law turned fundamentally on a dispute on religious doctrine, the absence of ―judicial or manageable standards by which to judge these issues‖ put the matter outside the jurisdiction of the courts. 43 contrary to the claimants‘ plea that there was a ―bond of union‖ (a contract or agreement) between the parties that provided sufficient objective standards, this was a case where ―judicial self-restraint‖ was required, as the subject-matter of the religious dispute defied ―analysing evidence, or by finding facts on the balance of probability, or by counting heads, or by ascertaining the wishes of a voting majority.‖ 44 the deeds themselves did not provide any way to consider the meaning of ―successor‖ without delving into the religious dispute, ―essentially a matter of professed subjective belief and faith on which secular municipal courts cannot possibly reach a decision, either as a matter of law or fact….this court should put a halt to this case now.‖ 45 40 khaira v shergill [2013] ewhc 4162 (ch) [22] [25] (hhj cooke). 41 see mummery lj in ca [51] – [56]. as the headnote put it, ‗it was not simply a question of the meaning of word ―successor‖, but whether [the third holy saint] fitted that description‘. 42 [1982] ac 888, in which the house of lords considered a claim for slander whose true goal was to obtain a decision of the english court about the boundary between the territory of three gulf states, which affected the parties‘ off-shore drilling rights. 43 shergill (n 39) [15], quoting lord wilberforce in buttes 938b-c. 44 ibid [16], [59], [70]–[71]. 45 ibid [72]–[73]. the denning law journal 249 khaira in the supreme court the single judgment in the supreme court differed with mummery lj‘s understanding of buttes gas. that case was non-justiciable because it was inherently political and involved the transactions of foreign sovereign states: ―it trespassed on the proper province of the executive, as the organ of the state charged with the conduct of foreign relations‖, as well as the lack of ―judicial or manageable standards‖ as mummery lj identified, making it ―difficult to imagine that such a conclusion could have been reached in any other context than the policy acts of sovereign states, for the acts of private parties, however political, are subject to law.‖ 46 the implication here is that, although religious matters may fall under the second quality of political matters, they do not fall under the first, and thus there is no inherent non-justiciability in matters of religion. a case is non-justiciable ―where an issue is said to be inherently unsuitable for judicial determination by reason only of its subject matter‖, for two reasons. 47 firstly, there was a ―rare‖ class of disputes where the issue was beyond the ―constitutional competence assigned to the courts under our conception of the separation of powers‖, and once the ―forbidden‖ area was identified, including certain transactions of foreign states and of proceedings in parliament, the court could not adjudicate on matters within it, even if necessary to decide some other justiciable issue (if it ―inhibits the defence of a claim, this may make it necessary to strike out an otherwise justiciable claim on the ground that it cannot be fairly tried‖). 48 the court also proposed a second, ―quite different‖ basis for nonjusticiability: ―claims or defences which are based neither on private legal rights or obligations, nor on reviewable matters of public law‖, such as ―domestic disputes, transactions not intended by the participants to affect their legal relations, and [certain] issues of international law.‖ disputes in this category may, however, be entertained by ―reluctant‖ courts if a legal right is engaged. 49 46 ibid [40]. 47 non-justiciability was juxtaposed to other matters, such as state immunity, the act of state doctrine, and unenforceability of foreign penal, revenue or public laws, which are ‗generally questions of territorial limits of the competence‘ of english courts or the competence the courts recognise in foreign courts: ibid [41]. 48 ibid [42]. see prebble v television new zealand [1995] 1 ac 321 and hamilton v al-fayed [2001] 1 ac 395. 49 ibid [43]; see the lord bingham quote from r (gentle) v prime minister [2008] 1 ac 1356. the problem of the non-justiciability of religious defamations 250 the court cited a canadian supreme court case, where a promise to obtain a jewish religious divorce made by a husband to his wife was enforceable as a civil contract and was not merely a religious and moral obligation, in support of the proposition that the court is ―not barred from considering a question of a religious nature, provided that the claim is based on the violation of a rule recognized in positive law‖. 50 the court set out the limited instances where this might happen. a line of english and scots law cases show how ―where a claimant asks the court to enforce private rights and obligations which depend on religious issues, the judge may have to determine such religious issues as are capable of objective ascertainment.‖ 51 these include questions of religious belief and practice where the court‖s jurisdiction is invoked either (a) to enforce the contractual rights of members of a community against other members or its governing body, or (b) to ensure that property held on trust is used for the purposes of the trust. 52 the supreme court also rejected two bases of non-justiciability of religious disputes. the first related to public law. the well-known decision in ex parte wachmann, that the chief rabbi‘s decision that the applicant was not religiously and morally fit to hold office as a rabbi did not raise an issue of public law which was amenable to judicial review, was ―not an authority for a proposition that the legality of such disciplinary proceedings is not justiciable‖. 53 in wachmann the court declined jurisdiction because the respondent was not a reviewable body, exercising functions ―essentially intimate, spiritual, and religious — functions which the government could not and would not seek to discharge in his place were he to abdicate his regulatory responsibility‖ 54 , and the decision was not reviewable as to do so would ―inevitably‖ draw the court into ―adjudicating upon matters intimate to a religious community‖. 55 50 ibid [44]. 51 ibid [45]. 52 although today statutory provisions may ‗provide a means of avoiding the judicial determination of a religious dispute‘ in both jurisdictions: [56]. the authors of religion and law in the united kingdom distinguish between courts intervening where there is a financial interest (the ‗forbes v eden principle‘: (1867) lr 1 sc & div 568) and where the disposal and administration of property is at stake: 78. 53 shergill (n 39) [58]. 54 r v chief rabbi of the united hebrew congregations of great britain and the commonwealth ex parte wachmann [1992] 1 wlr 1036, 1042. 55 ibid 1043. the denning law journal 251 the implication in the supreme court‘s consideration of wachmann is that it was the absence of any cause of action on the ―government function‖ test in public law that defeated the claim – the first reason given by simon brown j – and not the second, which alone would not have been enough to defeat a claim ―presented as a challenge to the contractual jurisdiction of a voluntary association‖, where the court had jurisdiction to consider questions of ultra vires and allegations of breaches of natural justice. 56 the second basis rejected by the court was that found in the grounds of blake, a former anglican clergyman who purported to conduct a samesex marriage on a tv programme. two pieces in the daily mail commented on the programme and described him variously as a ―self-styled‖ and ―imitation‖ bishop with a ―costume mitre‖. 57 in his claim for libel, mr blake pleaded that the articles alleged he was not validly consecrated nor entitled to call himself a bishop, although he ―masqueraded‖ as one, and that he was ―publicly and dishonestly‖ imitating a bishop, thereby setting out to deceive the public. 58 the publishers of the mail disagreed with the precise meanings borne by the articles, but pleaded that ―in all the circumstances c is an imitation bishop‖. it sought to defend the articles using the defences of justification and/or fair comment. 59 after the exchange of pleadings and witness statements the statements of the claimant and his witnesses were ―redolent with doctrinal, procedural, jurisdictional and historical arguments in favour of validity of his consecration‖ 60 the judge decided that the pleaded issues were within the ―territory which the courts, by self-denying ordinance, will not enter‖. 61 gray j then moved on to consider whether the action should be stayed or proceed to trial, with perhaps some ―adaptation of the issues as they stand at present‖. 62 the claimant argued that underlying the doctrinal issue as to the validity of his consecration was a ―secular issue‖ that could be 56 the reasoning in wachmann has been described as ‗suspect on several counts, not least since the test for judicial review is the present of ―public‖ functions not ―governmental‖‘: doe, religion and law in the united kingdom (n 2) 79. 57 blake (n 3) [1] – [10]. 58 ibid [11]. 59 ibid [12]-[13]. 60 ibid [17]. 61 ibid [24]. 62 ibid [25]. the problem of the non-justiciability of religious defamations 252 appropriately determined by the courts: whether the claimant had ―in historical fact‖ been consecrated as a bishop. 63 the claimant‘s expert opined that the claimant had been ―clearly‖ consecrated a matter of historical fact, and that this was within ―a valid historical succession‖, albeit one that may not be recognised by other churches. the complained of articles wholly neglected this context, generating the misleading impression he was an impostor. 64 the defendant countered that nonjusticiable religious issues were so ―fundamental‖ that the action could not be fairly tried. 65 gray j, who acknowledged that a stay should only be granted in most extreme circumstances as it would deny the claimant the opportunity of establishing good name in the courts, concluded that the issues in the action could not be adapted to ―circumvent the insuperable obstacle placed in the way of a fair trial‖. 66 he suggested that the claimant, who he found ―understandably somewhat reluctant to abandon his claim to have been validly consecrated‖, should make a ―modified version of the secular issue‖ the basis of the claim, before noting the sheer quantity and depth of issues in the case that came within the ―forbidden‖ territory of nonjusticiability: ―such questions include, by way of example only, substantive doctrinal questions including the canon law of catholic apostolic churches, questions of ecclesiastic procedure such as the authority and entitlement of richard palmer to consecrate the claimant and the validity (in the absence at the time of any denomination or established church) of the consecration of the claimant; questions whether the consecration of the claimant was in conformity with the customs and practices of any established christian denomination or criteria independently of poem [the claimant‘s order] and finally questions as to the moral standing and fitness of both richard palmer and the claimant for episcopal office.‖ 67 the impact of khaira on defamation cases the court does not explain precisely why the decision in blake was incorrect; the thrust of its criticism is that, because a private right was 63 ibid [27]. 64 ibid [28]-[30]. 65 ibid [31]. 66 ibid [35] and [38]. 67 ibid [33]. the denning law journal 253 engaged, the claim should have proceeded to trial, even if that required the determination of religious doctrine, in order to give legal effect to the claimant‘s private rights. this is indicated by the fact that the court was happy to remit a number of difficult questions about the dispute back for trial by the lower courts, including on the fundamental tenets of the first holy saint and the nirmal sect, the nature of the institution at nirmal kutia in india, the steps or formalities were needed for a person to become the successor of the first holy saint, and whether the teachings and personal qualities of the third holy saint comply with the fundamental religious aims and purposes of the trust. 68 on this basis, the court could have criticised other recent decisions applying the ―fundamental and inseparable‖ test to religious doctrine. similar matters arose in the parallel defamation proceedings in baba jeet v singh and shergill v purewal. in baba jeet, the third holy saint claimed that an article in the sikh times about the nirmal sikh faith damaged his reputation in the uk as it alleged he was the leader of a ―cult‖ and an impostor who disturbed the peace in the sikh community generally and in high wycombe specifically, had dishonestly produced counterfeit trust deeds to remove the gurdwara trustees and management committee there, and promoted blasphemy and the sexual exploitation and abuse of women. 69 in purewal, the first claimant in khaira brought a libel action against another sikh newspaper, the punjab times, and a journalist for three articles that attacked the third holy saint and his followers, including some of the trustee appointees. the articles claimed that the third holy saint had abandoned sikh principles, that he and his supporters were a ―sham‖, and that the claimant had sought to instigate violence. 70 both actions were stayed at preliminary issues hearings because issues of religion and doctrine permeated the pleadings and the courts did not consider it within their jurisdiction to determine the religious questions. for instance, the issue in baba jeet of whether the claimant was an ―impostor‖ could not be isolated and resolved without reference to sikh doctrines and traditions 71 , and the issues in purewal, such as whether the third holy saint was the legitimate successor to the sainthood, were 68 khaira [59]. 69 baba jeet [8]. 70 purewal [1]-[8]. 71 baba jeet [41] (eady j) following the reasoning in blake (n 3). the third holy saint successfully obtained permission to appeal but a substantive appeal not heard as he failed to pay security for costs: his holiness sant baba jeet singh ji maharaj v eastern media group and anr [2011] ewca civ 139. the problem of the non-justiciability of religious defamations 254 ―fundamental‖ to the case, making it ―impossible to adapt the issues in such a way as to circumvent the insuperable obstacle placed in the way of a fair trial of the action by the fact that the court is bound to abstain from determining questions which lie at the heart of the case‖. 72 applying khaira, it is likely that both cases should have gone to trial given the engagement of the claimants‘ private law rights. nothing distinguishes either from blake. it seems that the supreme court has subverted the basis for these decisions. being founded on a religious dispute does not disqualify a legal dispute as non-justiciable per se, whether or not the claim can be reframed in secular terms (it does if it is purely a religious dispute, however). the court has preferred the claimant‘s right to vindication of reputation over the defendant‘s rights in the action, against authority in a line of cases such as prebble, hamilton and greer v hencke 73 , and blake: ―the newspaper would still wish to advance the case that the consecration service had no religious or ecclesiastic validity, so that it was in effect a charade, and that to prevent the newspaper from advancing this case would be manifestly unfair and a serious invasion of its article 10 right‖. 74 furthermore, the court, through its support for lord davey‘s prohibition in overtoun, appears not to permit courts to decide the ―truth‖ of religious doctrines. 75 it seems doubly unfair on the defendant if defamation claims underlain by religious disputes are justiciable but the truth of the religious dispute cannot be contemplated in its own terms nor repleaded in wholly non-doctrinal ones. a solution (or at least a ―preferable means of accommodating religion in the law of libel‖ 76 ) may lie in the reformulation of the defence of honest 72 purewal [35] (gray j) . 73 21 july 1995, may j. to look for another basis for the claim would be ‗both unfair to the defendants and quite impractical‘. 74 blake [36]. see also [31] where the defendant averred that otto-premingerinstitut v austria [1994] ehrr 34 and s 12(4) of the 1998 human rights act supported the proposition that ‗if the right of the newspaper to deploy material in support of the defences of justification and fair comment were to be circumscribed by the court, its right to freedom of expression under art 10 [echr] might be infringed‘. s 12(4) obliges the court pay ‗particular regard‘ to the ‗importance of the convention right to freedom of expression‘ and, inter alia, to the benefit of any defendant respondent, the extent of publication and whether publication was in the public interest. 75 see [45] and [53]. 76 mullis and scott (n 20) 144. the denning law journal 255 opinion. the supreme court alluded to the previous formulation of the defence in spiller v joseph in khaira. 77 currently, under s 3, a ―fact‖ for the purposes of the defence must be something the defendant can prove is true. this does not get the religious doctrine dispute any further than the defence of justification. but if ―fact‖ for the purposes of honest opinion meant the allusion to or representation of the religious doctrine dispute itself, this would form the basis of the defence provided the other conditions in the defence are satisfied. this would not give the defendant the same protection as a strike-out of the claim on the basis of non-justiciability, described as ―an absolute privilege which has never been recognised and could easily be abused‖ 78 , but it would provide critics and commentators with a safer defence provided they refer to the doctrinal dispute in their publication. it would, in effect, extended the concept of privilege, already acknowledged in the honest opinion defence, beyond its established domains of absolute and qualified privilege, and rebalance the scales of justice between the parties in religious defamation disputes. conclusion khaira does more than ―shift…the boundary slightly and enlarge the circumstances in which the court will feel able to intervene‖ 79 or merely ―push the door of non-justiciability open by a crack‖. 80 it potentially heralds a return to what has been described as the ―nineteenth century‖ concept of non-justiciability, where judges sought ―neutrality‖ and detachedness by ―pointing out that it was no role of a court of law to act as a religious insider delivering ―correct‖ answers to the underlying substantive theological or ecclesiological dispute between the parties‖ but would ―regularly proceed to point out that questions of doctrine and 77 [57]. 78 otuo (n 23) [25]. 79 frank cranmer, ‗is religious doctrine justiciable? up to a point, yes: shergill v khaira‘ law & religion uk, 11 june 2014, <www.lawandreligionuk.com/2014/06/11/is-religious-doctrine-justiciable-up-toa-point-yes-khaira-v-shergill/> accessed 15 july 2015. 80 neil addison, ‗shergill v khaira – when can religious doctrine be justiciable?‘ (religion law, 12 june 2014) <http://religionlaw.blogspot.co.uk/2014/06/shergil-v-khaira-when-canreligious.html> accessed 1 july 2015. http://www.lawandreligionuk.com/2014/06/11/is-religious-doctrine-justiciable-up-to-a-point-yes-khaira-v-shergill/ http://www.lawandreligionuk.com/2014/06/11/is-religious-doctrine-justiciable-up-to-a-point-yes-khaira-v-shergill/ http://religionlaw.blogspot.co.uk/2014/06/shergil-v-khaira-when-can-religious.html http://religionlaw.blogspot.co.uk/2014/06/shergil-v-khaira-when-can-religious.html the problem of the non-justiciability of religious defamations 256 discipline might well be relevant as questions of fact to determine the outcome of the case‖ through the use of evidence. 81 particularly given the willingness of courts to widen the legal definition of a religion, for instance to the church of scientology, 82 it is hard to disagree with singh that there is likely to be a rise in defamation cases involving religion, more of which will be deemed justiciable. 83 there has even been an attempt at a private prosecution on the basis of the ―untruth‖ of the mormon faith. 84 more cases will involve religions other 81 julian rivers, the law of organized religions: between establishment and secularism (oup 2010) 73. this is in contrast to the ‗modern doctrine‘, which holds that courts should ‗not even resolve disputed questions of religious doctrine and government as matters of fact‘. it is ‗thus a form of blindness to social reality and the expectations of the parties. it leads to a curious instability in the law‘ between denial of a remedy to the claimant on the one hand, or the search for a wholly non-religious basis for legal decision-making on the other. see also rivers‘ preference for the secular approach to blake (n 3) 145: ‗one can easily distinguish between claims which are simply true or false (eg that a person does or does not hold a certain position in a certain religious organization) and claims which depend on a theological judgment….‘ 82 r v registrar general of births, death and marriages ex parte hodkin [2013] uksc 77, reversing the principle of the court of appeal in r v registrar general, ex parte segerdal [1970] 2 qb 697. 83 ‗reports on those alleged to be involved with islamic extremism and charismatic [new religious movement] leaders, along with the increased use of social media, provide ample opportunity for the issuing of further defamation writs. religious practitioners with deep pockets want to manage reputations just like everyone else. they should also expect to be held accountable for their transgressions.‘ <https://inforrm.wordpress.com/2015/03/11/a-leap-of-faith-therise-of-religious-libel-cases-hardeep-singh/> accessed 15 july 2015. 84 thomas phillips v thomas monson [2014] westminster magistrates ct (district judge riddle): ‗it is obvious that this proposed prosecution attacks the doctrine and beliefs of the mormon church, and is aimed at those beliefs rather than any wrong-doing of mr monson personally. the purpose is to use criminal proceedings to expose the false (it is said) facts on which the church is based. it is inevitable that the prosecution would never reach a jury, even if mr monson chooses to attend. to convict, a jury would need to be sure that the religious teachings of the mormon church are untrue or misleading. that proposition is at the heart of the case. no judge in a secular court in england and wales would allow that issue to be put to a jury. it is non-justiciable.‘ <www.judiciary.gov.uk/wp-content/uploads/jco/documents/judgments/thomasphillips-v-thomas-monson.pdf> accessed 15 july 2015. https://inforrm.wordpress.com/2015/03/11/a-leap-of-faith-the-rise-of-religious-libel-cases-hardeep-singh/ https://inforrm.wordpress.com/2015/03/11/a-leap-of-faith-the-rise-of-religious-libel-cases-hardeep-singh/ http://www.judiciary.gov.uk/wp-content/uploads/jco/documents/judgments/thomas-phillips-v-thomas-monson.pdf%3e%20accessed%2015%20july%202015 http://www.judiciary.gov.uk/wp-content/uploads/jco/documents/judgments/thomas-phillips-v-thomas-monson.pdf%3e%20accessed%2015%20july%202015 the denning law journal 257 than christianity, as new religious movements (nrms) use threats of libel to silence critics. 85 nonetheless, these cases will demand resolution by the courts: whereas the property law cases cited by the supreme court were potentially open to alternative dispute resolution (such as mediation) where all parties could be partially satisfied through the division of the trust property amongst them, in defamation cases such division is not possible: either the claimant vindicates their reputation, or the libel stands. there is no halfway house. damage to reputation is not easily repaired nor, in the eyes of many claimants, adequately restored by damages. many will welcome the decision in khaira. at the same time, most of the occasions on which the courts have decided religious truths as the basis for enforcing secular rights and obligations have concerned underlying christian theology. given the composition of the judiciary it is reasonable to infer that most judges will be much more familiar with christian doctrine and practice than with hinduism or islam. the invitation in khaira could thus herald an avalanche of defamation claims in a range of familiar religions and nrms. this would possibly be counter-cultural given the cultural and political shift towards defences of free speech, perhaps seen more glaringly after the charlie hebdo killings. the magna carta ends with a peroration at article 63: ―it is accordingly our wish and command that the english church shall be free, and that men in our kingdom shall have and keep all these liberties, rights, and concessions, well and peaceably in their fullness and entirety for them and their heirs, of us and our heirs, in all things and all places for ever.‖ such a pronouncement was satisfactory for the relative cultural homogeneity of the thirteenth century. 800 years later, it is the balance between the liberty of the churches in their doctrines, and the right of reputation of ―men in our kingdom‖, that is at stake today. 85 religious libel, 153-54. judge, jurist and legislature the right hon. lord coff* after he had despatched augustine, with several other god-fearing monks, to preach the word of god to the english nation in the year 582, pope gregory the great received from st augustine from time to time reports of his progress and requests for guidance. nineteen years later, in the year 601, he sent to augustine a letter in which he granted to him the privilege of wearing the pallium when performing the solemnities of the mass; and, after the messenger bearing that letter had departed from rome, he sent another letter communicating further thoughts which, as bede records, showed "most clearly his unwearying interest in the salvation of our nation." i quote from the letter: "we have been giving careful thought to the affairs of the english and have come to the conclusion that the temples of the idols among that people should on no account be destroyed. the idols are to be destroyed, but the temples themselves are to be aspersed with holy water, altars set up in them, and relics deposited there ... in this way, we hope that the people, seeing that their temples are not destroyed, may abandon their error and, flocking more readily to their accustomed resorts, may come to know and adore the true god ... they are no longer to sacrifice beasts to the devil, but they may kill them for food to the praise of god, and give thanks to the giver of all gifts for the plenty they enjoy. if the people are allowed some worldly pleasures in this way, they will more readily come to desire the joys of the spirit. for it is certainly impossible to eradicate all errors from obstinate minds at one stroke, and whoever wishes to climb to a mountain top, climbs gradually step by step, and not in one leap ... " i quote these passages from pope gregory's letter to st augustine, because they illustrate two qualities which i, for myself, particularly admire his pragmatism and his gradualism. his approach can be most usefully contrasted with that of the moghul emperor who, after conquering the city of mathura, caused a large "'lord of appeal in ordinary. the child & co. oxford lecture 1986, reprinted by kind permission of lord goff and child & co. 79 the denning law journal mosque to be built on the site of the prison cell venerated by hindus as the birthplace of the lord krishna an act which causes offence to this day, though the hindus now venerate a spot just outside the mosque which, they claim, was the actual site of the prison cell. but my purpose is not to condemn the jack-boot policy of the moghul emperor; it is to acclaim pragmatism and gradualism as the sovereign virtues, not only of pope gregory the great, but also of the common law. the history of the common law is a history of continuous, gradual, development over a period of many centuries. of course, under the pressure of economic, political and social developments, the tempo of change has increased dramatically over the past 150 years, and is still increasing today. however, for the greater part of our history, the main instruments in the process of legal development were the judges together with the chancellor; it is to them that we owe the majority of the fundamental legal principles which provide the framework within which we work today. it is only in the past 150 years or so, and especially since the second world war, that the legislature has become increasingly active; but the nature of modern legislation is such that, to a surprising degree, the fabric of legal principle has remained untouched, with the result that its gradual development in the courts has continued unabated. if we are prepared to take the long perspective, we must recognise not merely the capacity of the law to change without the intervention of the legislature, but the absolute necessity that it should do so. moreover, if we compare the law as it is today with the law as it was not so very long ago, we may deduce the following proposition. seen in the perspective of time all statements of the law, whether by the legislature, or by judges, or by jurists, are no more than working hypotheses. they are, quite simply, temporary approximations which some people in their wisdom have found to be convincing at certain points of time. to the layman, this may appear to be a startling proposition. the layman thinks of the law as inherently predictable, clear, precise, certain, even rock-like in quality. it is, in fact, nothing of the sort. of course, it is true that, at any given point of time, if a citizen seeks advice from his legal adviser in order to regulate his affairs to make a will, or buy a house, or even to divorce his or her wife or husband the lawyer should know or be capable of ascertaining the applicable law and so be able to give his client useful advice. it is also true that a citizen who fears that a proposed course of conduct may infringe the law may, for example, contravene regulations which control road traffic or the running of factories, or fall foul of the income tax laws should be able to obtain reasonably clear advice from his lawyer, or even to look up the relevant provisions himself, in order to ensure that his conduct is within the law. but these propositions are entirely consistent with the fact that the law, in the sense oflegal principle, is in a continuous state of change; indeed, it is my own belief that, as a general rule, gradual development of the law does not deprive it of such stability as is desirable in order to enable citizens to regulate their affairs or amicably to resolve their disputes. why is the law always changing? the first reason is that law itself is a subject of 80 judge, jurist and legislature great complexity. since it has to reflect all the untidy complexity of life, it is itself unavoidably complex; and the principles which gradually emerge from the mists of doubt as the preferred principles at any particular point of time are often the product of long debate, and of many judicial decisions on particular facts. moreover, in the ultimate analysis all principles inter-relate property, obligation, estoppel and so on cannot be considered in isolation, and still less can their constituent elements so development in one may have an impact upon another. we should not, therefore, be surprised by the proposition that statements of legal principle are simply working hypotheses. indeed, our laws not only represent the fallible conclusions of men. there are also and this is the s'econd factor which stimulates change subject to the ebb and flow of the tides of fashion and opinion. moreover, the idea that principles of law are, so to speak, just waiting to be discovered if only we are clever enough to find them just like some oil field or gold mine or archaeological artefact awaiting the attention of an intelligent and industrious geologist or archaeologist is entirely mistaken. if that were right, why do not, for example, french and english lawyers come to the same conclusions as to the correct principles applicable to govern contracts and other obligations? why have we not identified the same institutions for the regulation of rights of property? we have not done so; though some of the differences between us are more apparent than real, being the result not so much of differences of substance, than of using different languages not merely different linguistically, but different in the sense that we have adopted different legal concepts as our tools of trade. but it is, i believe, indisputable that, in many cases, legal principles are not self-evidently right; there is often a choice, not only in points of detail or in terms of practicable solutions of particular problems, but also in answering more fundamental questions, and the choice of answer may affect the fabric of a particular institution, or even a whole branch of the law. it follows, of course, that there are no instant, complete, solutions; those of us who persuade ourselves that we can perceive such a solution are deceiving ourselves, and, if we as judges attempt to state legal principles in too rigid a form, we inflict upon a living institution a dose of arthritis which will, before long, require the services of a doctor, or even a surgeon, if it is to be restored to health. a statement of principle, capable of qualification to meet unforeseen circumstances and capable of adaptation to absorb developments in other inter-related parts of the law, is generally all that is needed to provide the temporary certainty required to guide citizens in their practical affairs. absolute certainty in the law is in truth not merely undesirable, but it is, as history shows, a chimera. as i heard professor marcel storme of the university of ghent say only last month, at the institute of advanced legal studies, there are no definitive solutions. the only truly constant feature of the law is that it is in a constant state of change. if it is true that the law is in a constant state of development, and if the judiciary is one of the instruments through which such a development takes place, it is not unreasonable to ask: within what limits are judges empowered to change the law? 81 the denning law journal this is indeed a profound question of constitutional importance; though like many questions, especially profound questions, it is not necessarily desirable, or even possible, that it should be answered with any degree of precision. it is usually said that judges cannot legislate; and this is plainly right in the sense that judges should not invent new laws, as does a legislative assembly in a democratic society such as ours. the function of judges is, literally, to decide cases. in deciding cases the prime influence is, and should be, the facts of the particular case. the judicial act can not unreasonably be epitomised as an educated reflex to facts, though always within the framework of established legal principle. but the emphasis must be on the facts, so that the judge must be able, where appropriate, to adapt or even qualify legal principle, even established legal principle, to accomodate the facts of the case before him. the controlling mechanism under which judges operate in performing their duty of applying legal principles to the cases before them is comprised in what is commonly called the doctrine of precedent. it is usually said that the function of the doctrine of precedent is to achieve certainty in the law. this is, i believe, an over-simplification of a complex matter. to me, the doctrine of precedent (whatever precise form it may take) has two functions. the first is to ensure stability in the law; and the second is to secure consistency in its administration. let me explain. we have in england a well-recognised principle that judges are absolutely bound by decisions of superior courts. so with us a high court judge is bound by decisions of the court of appeal, and the court of appeal is bound by decisions in the house of lords. in point of fact, it is remarkable how much freedom is still left, in practice, to judges of inferior courts to achieve practical justice; this is achieved by the use of the well-known technique of distinguishing authorities which otherwise might be thought to inhibit the freedom of action of the inferior court. but that the principle exists is undoubted; and the function of the principle is to ensure consistency in the administration of the law the effect being that courts of co-ordinate jurisdiction, and expecially inferior courts to which citizens' disputes are directly (and usually, in practice, exclusively) submitted will, generally speaking, apply the same principles of law. i say generally speaking, because we do not find it necessary in england to demand that a judge should be bound by the decision of another judge of co-ordinate jurisdiction; in practice, however, he will nearly always follow it, as a matter of comity. so much for consistency. -but what about stability? here we are talking not about different judges applying the same principles of law, but about an inhibition on change. this is something quite different. it affects principally the appellate courts, and especially the supreme tribunal of the country. the formal question can thus be stated: to what extent are appellate courts, and especially the supreme tribunal, bound by their own decisions? it used to be true in england, not only of the court of appeal, but also of the house of lords, that they were indeed bound by their own decisions. for a period of about 75 years, corresponding roughly with 82 judge, jurist and legislature the first three-quarters of this century, the house of lords proceeded on the basis that it was absolutely bound by its own decisions. that decision has now been abandoned; and surely this is right. at the most simple, practical, level, the proposition that the house of lords should not be free to review its own decisions presupposes a legislature which is ready and available, at reasonably short notice, to put things right when they go wrong. that is just not so. in democracies, legislatures are not much interested in what may be called lawyers' law. they are interested in advancing policies and, at a cruder level, in gaining, or at least retaining, electoral support. moreover, legislative changes of lawyers' law involve very difficult questions on how far the legislature should go. so the proposition that the house of lords was absolutely bound by its own decisions was thoroughly unpractical. but, more fundamentally, it ignored the historical fact of change through judicial development of the law change which can take place, does take place, and must take place in every system of law if it is to provide a satisfactory response to the reasonable expectations of the citizens of the country. whatever the theory underlying the old approach of the house of lords that it should be bound by its own decisions, that theory, like any other, has had to yield to facts. it is far healthier and more realistic to recognise facts, and generalise from them, than it is to propound a constitutional theory and derive from it an inhibition upon the natural processes that in fact take place. if the theory which underlay the old approach was that the judges must not legislate, the answer should be that that statement must be expressed in a qualified form to meet the facts. and if the theory was that the law is a nugget of gold, awaiting discovery, so that, once exposed, it is inevitably right and inevitably permanent, then the answer must be that that is, in point of simple historical fact, untrue. the real principle which both restricts the judicial power to legislate and ensures a sufficient degree of stability in the law is far more subtle than a rigid rule precluding change, or indeed the doctrine of precedent (whatever its form). it is enshrined in one word gradualism. this is the true, the ultimate limit on the power of the judges to develop, even change, the law; though it is important to recognise that the principle of gradualism does not totally inhibit innovation. generally speaking, however, judges do not suddenly invent totally new principles; and when innovation takes place, it is generally as a result of intense pressure of a practical kind. we did not, for example, see the english judges in the nineteenth century suddenly invent a generalised principle of liability in negligence for physical damage to persons and property, despite all the pressures arising from the inventions of the railways, the development of factories, and other consequences of the industrial revolution. what we saw was a gradual development of the law over a period of nearly 100 years, culminating in the decision of a bare majority of the house of lords in donoghue v. stroenson 1 in 1932; and what we are still seeing in england today is a further gradual exploration of the possible principles which may 1. [19321 a.c.s62. 83 the denning law journal govern liability in negligence for purely economic loss. a similar problem is, of course, troubling our colleagues in germany and in france. we must not be surprised that judges have the power to create law. the layman might be forgiven for thinking that that power should be vested only in the elected representatives of the people, i.e. in parliament; but that is not so, for history shows plainly, beyond all contradiction, that no legal system can operate efficiently without the creative power of the judges. that fact is expressly recognised in article 1, paragraph 2, of the swiss code which provides that "if no applicable provision is contained in the code, the judge is to apply customary law or, in its absence, the rule which he himself would establish, if he were the legislature." and german jurists have for long openly recognised that, although, according to the notions of the enlightenment, a code contains an answer to all the questions that may arise in the relevant rubric of the law, such an idea was bound to show cracks before long, as indeed it did. nowadays, in germany, it is accepted that judicial interpretation of the code may go beyond completing the law; it may even alter it against its very words. this is a matter to which i shall revert later in this lecture; i pause only at this stage to observe that it is very difficult to reconcile montesquieu's doctrine of the separation of powers with the recognition of the judicial power to create law a fact which i, as a member of parliament who sits in a judicial capacity, feel able to contemplate with some equanimity. i return to england. it is now over twenty years since the house of lords decided, as 1would put it, to re-assume the power to review its own decisions. but we have yet to see any coherent statement of a philosophy upon which that power will now be exercised; and indeed i suspect that this reflects a sensible restraint on the part of those concerned. at present we have what appears, at first sight, to be a somewhat startling, even bizarre, situation, which can be caricatured in the following manner: the house of lords will not reverse a decision of its own which is too young, or one which is too old, but only one which is, so to speak, middle-aged. so stated, the approach does not have much intellectual appeal; and it is right to search for the reasons underlying this attitude so that a more sensible policy can be revealed. the inhibition against reviewing a decision which is comparatively recent reflects perhaps two things: first, a sense that ding dong change is inherently undesirable because it might de-stabilise the law; and second, of more practical importance, a feeling that in common sense terms time has to pass to enable, so to speak, the dust to settle on a decision, to ensure that any reconsideration of the decision will be the product of mature reflection rather than of simple reaction. these are sensible reasons, inhibiting a rapid review of recent decisions but not, be it noted, precluding such a step altogether. indeed, this reflects actual practice. for i can, and i am sure you can, think of more than one decision of the house of lords which did not survive for many years in this century. what is the origin of the inhibition against disturbing a decision which has stood for many years? it cannot, of course, be simple longevity: for age-old decisions 84 judge, jurist and legislature must, in the fullness of time, be silently consigned to the legal scrap heap. the true reason (putting on one side those cases which have been widely acted upon) is that there is an underlying fear that a decision, if it has stood for many years, may have become so embedded in the mosaic of the law that to reverse it would effect too great an upheaval of legal principle, or at least that the consequences of its reversal cannot be wholly foreseen. this is reasonable, but once again it cannot preclude reversal of any decision, merely because it is old. indeed, in many cases the effect of the excision of an old authority is predictable, at least in a general sense; and it may well be that it is that very effect which provides the argument for change. we can find in the law reports of the last twenty or thirty years numerous illustrations of the judicial development of the law. let me glance at some striking examples. we have seen the abandonment of the absolute doctrine of sovereign immunity for a qualified doctrine, in the phillipine admiral,2 trendtex trading corporation ltd. v. central bank of nigeria3 and i congreso del partido4 a development now, of course, enshrined in a statute. we have seen the acceptance of the principle of forum non conveniens, in cases of stay of proceedings in this country when parallel proceedings have been or should be commenced abroad, in the atlantic stars and macshannon v. rockware glass ltd ..6 we have seen recognition of the principle that both arbitration awards and judgments may be made in foreign currencies, in jugoslavenska oceanska plovidba v. castle investment co. inc.7 and miliangos v. georgefrank (textiles) ltd.8 (in the latter of which cases a by no means elderly decision of the house of lords, in re united railways of havana v. regia warehouses ltd} was overruled). even more remarkable, we have seen the judicial creation of new forms of procedure, in the form of the mareva injunction and the anton piller order. the former of these has indeed fulfilled a long-felt need. i think it worthy of record that when, many years ago, the law commission wrote round asking for proposals for reform, i and mr brian davenport, having some experience of the continental jurisdiction in such cases, proposed that the arrest of assets in aid of civil claims might be a topic worthy for consideration; but the law commission must have decided, no doubt for good reason, not to pursue the matter at that time. it was, therefore, particularly satisfactory to me that the courts were prepared to extend the remedy of the injunction to meet this need. more recently we have seen, in ramsay v. i.r. c.10 and furniss v. dawson,!! a profound change in the attitude of the courts to 2. [1977] a.c.373. 3. [1977] q,b.729. 4. [1983] 1 a.c.244. 5. [1974] a.c.436. 6. [1978] a.c.795. 7. [1974] q,b.292. 8. [1976] a.c.443. 9. [1961] a.c.1007. 10. [1981] s.t.c.174. 11. [1984] s.t.c.153. 85 the denning law journal tax-avoidance schemes. but perhaps the most striking change of all has been in the development of a modem system of administrative law, through the remedy of judicial review, in a whole series of landmark cases in the house of lords notably, ridge v. baldwin,12 padfield v. minister of agriculture, fisheries and food, i3 anisminic ltd. v. foreign compensation commission,14 conway v. rimmer, is and the gchq case in re the council of civil service unions and others.16 no doubt we could all multiply these examples. but in any event i do not see how it can possibly be said, in the face of examples such as those which i have just given, that judges do not have the power to change the law. as one master of the rolls, sir george jessel, said many years ago of the rules of equity: "it is perfectly well-known that they have been established from time to time altered, improved, and refined from time to time. in many cases we know the names of the chancellors who have invented them. no doubt they were invented for the purpose of securing the better administration of justice, but still they were invented. take such things as these: the separate use of a married woman, the restraint on alienation, the modem rule against perpetuities, and the rules of equitable waste. we can name the chancellors who first invented them, and state the date when they were first introduced into equity jurisprudence; and, therefore, in cases of this kind, the older precedents in equity are of very little value. the doctrines are progressive, refined and improved; and if we want to know what the rules of equity are, we must look, of course, rather to the more modem than the more ancient cases." sir george jessel contrasted the rules of equity with the rules of common law, which he said were "supposed to have been established from time immemorial". as his choice of words betrays, this is obviously a fiction; and it is high time that we should take the same realistic view of the development of the common law as sir george jessel took of the development of equity. in all truth, as i never tire of saying, it is not only a historical fact that judges do change the law, but it is also an absolute necessity that they should do so, or the law would not be able to satisfy the reasonable expectations of the society which it is the duty of the judges to serve. but there is an essential corollary of the exercise of this judicial power of change. it is essential that, in seeking to develop the law, the judges should so far as possible operate within the confines.. of the principle of gradualism. they should consciously allow themselves to be influenced by the facts of the cases which they have to decide, and allow their intuition as lawyers to influence them in adapting or qualifying existing legal principle to achieve the just result in those cases. this is 12. [19641 a.c.40. 13. [1968] a.c.997. 14. [1969] 2 a.c.147. 15. [1968] a.c.91o. 16. [1985] a.c.374. 86 judge, jurist and legislature the essentially pragmatic approach which is perhaps the most fundamental of all the characteristics of the common law, which is, i believe, shared by all of us who work within that system. let facts develop principles: do not let principles, still less rules, be so dogmatically stated as to preclude a just decision on the facts. but, if that is right, we must not attempt to decide too much in any particular case. the over-ambitious judge who attempts to re-state the law in broad, even exclusive, terms, is, except in very rare circumstances, doing a dis-service to the legal system. likewise the judge whose reasoning is too complicated, too convoluted; exercises in personal codification, and over-elaborate reasoning, are to be deplored. but there is a technique at hand for dealing with this mistaken form of judicial activity. this is the technique of the narrow definition of the ratio decidendi of the case, ensuring that each case should be treated in law as no more than a judicial reflex to a particular fact-situation, of course always within the framework oflegal principle. so if judges attempt to decide too much, subsequent courts can qualify the decision; and if they use too complicated reasoning, that reasoning can, if appropriate, be unstitched, even unravelled, to allow practical justice to be achieved in a later case. for it is a matter of fundamental importance that no judge, however distinguished, should be allowed in any way to persuade, or even inhibit, the organic growth of the common law. even though we must recognise, as a matter of simple historical fact, the power of the judiciary to create law, it is obvious that, in a society as rapidly developing as the one in which we all live today, the judiciary, operating within the confines of the principle of gradualism, is by itself a wholly inadequate vehicle for the reform of the law. since early victorian times, we have seen an increasingly active legislature remodelling our institutions, including our judicial system, and reforming substantial areas of our procedural and substantive law. all this is well-known. we all know of the extraordinary work of jeremy bentham, who sought to base, upon a single principle, a science oflegislation which would lead to a wholly codified system of law and procedure, organised upon rational principles, so that the legislature would be the sole source of the law and the function ofjudge & co. would be reduced to the literal interpretation of the statutory text. we can see, in the perspective of time, that this was an unrealistic, indeed impossible, dream; but we can also see how very productive his work was in the sense that it led, in the hands of other, more practical, men, to innumerable practical reforms of all kinds. but, although it produced, through the indian law commission under macaulay, notable indian codifications in the form of the indian penal code and the indian contract act, there was no sweeping codification of the law in this country, though there were, of course, the limited codes in the field of commercial law sale of goods, partnership, bills of exchange and marine insurance. the indian legislation was doubtless of great value in introducing new, uniform, laws to a vast sub-continent; but when we read it today, we can see how dated a codification will become over a period of only one century, and how dead a hand it can lay upon the law unless the courts are permitted, and adopt, a very free hand in 87 'the denning law journal its interpretation and development. for example, chapter v of the indian contract act of 1872, entitled "of certain relations resembling those created by contract", is the only place where we can find any source for what we nowadays call the law of restitution;. and of the five sections in that chapter, one is irrelevant to restitution, three are concerned with minor topics, and from one alone (section 72), consisting of a single sentence, would have to be derived the greater part of the law of restitution. a parallel can be drawn with articles 1382-1386 of the french code civile, from whose meagre provisions was developed the french law of delict. it was not until the enactment of the statute establishing the law commissions in 1965 (characteristically, bodies foreshadowed byjeremy bentham) that we see the establishment of institutions entrusted with the systematic development and reform of the law in the united kingdom. such development and reform was expressly stated, in the statute, to include "in particular the codification" of the law. consistently with that expressed statutory purpose the english law commission included, in its initial programme, ambitious projects for the codification of the law of contract and the law of landlord and tenant. yet, twenty years later, no draft code on either subject has seen the light of day; and it is likely that both projects have quietly been put on one side. there are probably many reasons for this. one is that attempts were being made to codify the law on subjects of extreme complexity in too precise a form; in other words, the vice of statutory draftsmanship in england was inhibiting the codification of the law. another is that the projects proved to be far more difficult than was anticipated. but another, and probably more profound, reason is that in truth codification has been perceived to be unnecessary. just as constitutions are the children of revolutions, so also are codes, though the word revolution has in this context to be given a broader meaning. the french code civile was the child of the french revolution, or at least of the napoleonic period which followed it. the german bgb was a product not only of the age of enlightenment, but also of the unification of germany under the prussian monarchy. at another level, countries seeking to change their own societies have imported codes from overseas: france has done a great export trade in law, and notable example of countries which have drawn upon the german codifications are turkey and japan. i have already referred to the introduction of the indian penal code and the indian contract act, introduced to achieve a unified criminal and commercial law in the indian sub-continent. at a more humble level, we can see in this country examples of fundamental change being wrought in particular areas of the law by codification: a classic example in england is the fundamental change made in recent years in our law of divorce, with the abandonment of the concept of the matrimonial offence and the substitution of the concept of the irretrievable breakdown of the marriage, which was achieved by a statutory re-statement of the law relating to matrimonial causes. there are of course many other examples. we are all greatly indebted to the law commission in this country for the 88 judge, jurist and legislature manner in which it has approached its work. under a series of distinguished chairmen, we have seen no rush for spectacular reforms, but rather have we seen a series of proposals founded upon wide consultation and careful research, informed by serious scholarship, which have led to a substantial number of reforms, and on occasion (the recent paper on the so-called parol evidence rule provides a striking example) a refusal to be inveigled into unnecessary or undesirable change. regret is sometimes expressed that they have not been able to move faster; but this is probably a disguised tribute to the quality of their work. the great advantages of this method of developing the law have been eloquently described by dr peter north in his colston lecture of 1984, the basis of a paper published last year in the journal of the society of public teachers of law, legal studies. for example, it does not depend upon the accidents of litigation; it can take account, through consultation and research, of wide-ranging policy issues a point which recalls to my mind the decision of the house of lords in anna v. merton london borough council,17 the principal effect of which appears to have been the pouring of enormous quantities of unnecessary concrete into the ground, at very considerable expense to the community, running possibly to millions of pounds each year; and a third advantage is that it need not be retrospective in effect. we have, however, to recognise, with dr north, that all methods of developing the law have both their advantages and their disadvantages and great care must be taken, not only in proposing a particular change, but also in deciding whether to use a particular vehicle for such change. today, i wish only to draw attention to one serious danger and one serious disadvantage of statutory law reform. the danger is that piecemeal legislation may exercise a distorting effect on the development of the law. this danger is, i believe, generally recognised by the law commission. speaking of the law of restitution, in which i have a particular interest, i was glad when they decided (unlike certain canadian colleagues of theirs) to desist from considering reform of the recovery of payments made under a mistake of law; and, like professor birks, i have been anxious about their proposal for reform of the law relating to recovery of money paid by parties who are in breach of contract. i cannot help remembering the law reform (frustrated contracts) act 1943 and the problem which faced me in b.p. v. hunt18 in relating the provisions of that statute (mercifully drawn, on the express direction of viscount simon, in very broad terms) to a law of restitution now far more developed than it was in 1943. but the one serious danger is of a more profound kind. it is that the product of the labour of the law commission must take the form of legislation. this has two consequences. the first is that, as every competent jurist must know in his heart of hearts, mistakes will inevitablybe made though every care is taken, and new circumstances will occur, new cases will emerge, which have not been, and maybe could not be foreseen. i know full well, 17. [1978] a.c.n8. 18. [1981] 1 w.l.r.232. 89 the denning law journal from my own work as judge and jurist, that practically every statement of principle which i utter is subject to mental reservations, sometimes great, sometimes small; and that the more fundamental the principle, the more likely are there to be reservations, and the more important are such reservations likely to be. the second consequence is that statutory law reform is likely to lead to ossification of the law, precluding gradualist development which is capable of ironing out those wrinkles with which old age disfigures law, like all living creatures. this is especially true of english style statutes, with their tight, precise, draftsmanship, and their obvious "hands off' to judicial busybodies who may be anxious to do justice in cases unforeseen by the draftsman, perhaps inspired by a supposed judicial antipathy to statutes, which, in my own experience as a barrister and a judge, is wholly illusory. this type of draftsmanship is, no doubt, one of the reasons why the benthamite ideal of codification for its own sake has generally been abandoned, thus illustrating most vividly the truth that parliament cannot enact a philosophy, as it purported to do in the law commissions act. nowadays, only when a substantial specific advantage is perceived to accrue from codification, which outweighs its inherent disadvantages, is codification likely to be acceptable in england. and, in a relatively stable country, that substantial advantage is likely to consist of a need for substantial reform of the relevant rubric of the law. it is in this context that the proposed codification of the criminal law in england has to be judged. the draft code, which will relate only to serious crimes, has been commended to us on the basis that it will make the criminal law more accessible, comprehensible, consistent and certain. like many general statements of this kind, this statement of aims has a most attractive ring; but it has to be subjected to critical analysis. imust confess that, when i first read it, it sounded to me like yet another attempt to advocate codification for its own sake; and i was immensely pleased to hear professor smith, the first of the three wise men to whom we owe so great a debt for having dedicated so much skill and time to produce this admirable draft for our consideration, say in his child & co. lecture in london earlier this year that he himself did not believe in codification for codification's sake. so the new draft code will have to be justified on its own merits; and, first of all, an explanation will have to be given why no codification is proposed for scottish criminal law, to which the english law commission's statement of aims is equally applicable. the debate has only just begun. it would not be appropriate for me to dwell upon the subject in this lecture. there is no doubt that the strongest evidence for rejecting the benthamite ideal of codification for its own sake is to be found in the experience of codified systems on the continent of europe. this proposition can best be illustrated by the famous article 242 of the bgb which reads (in translation) as follows: "the debtor is obliged to perform in such a manner as good faith requires, regard being. paid to general practice." 90 judge, jurist and legislature this innocent-sounding provision has been used to create a whole equity, to mitigate the rigours of the code; the comparison with the chancellor's equity in this country is too strong to be ignored. german jurists have stated that article 242 embodies a principle oflegal ethics, which dominates the entire legal system; it has also been described as the gateway for natural law to enter the bgb; yet again it has been said that the extremely numerous decisions under article 242 are more comparable with the case law in the anglo-american systems than anything else in german law. perhaps the most famous decision under article 242 is the decision of the reichsgericht in 1923 (rgz 107, 78, 86), during the period of hyperinflation in germany, to revalorise mortages in terms of the value of money at the time of their creation a decision of such strength that it must take the breath away from even the most pragmatic common lawyer. i have not time to do more than glance at this fascinating topic; but to me it illustrates more than anything else the absolute need, in every legal system, to allow judges the freedom to develop the law both creatively and pragmatically, if the legitimate expectations of citizens are to be fulfilled. but, in any event, the ground has been cut from under the feet of the benthamite movement for codification in this country by the growth in stature of the english jurist of the past century. until the second half of the nineteenth century, there was no systematic instruction in the common law in the english universities. a man who aspired to be a lawyer entered into an apprenticeship, and learned his trade at the elbow of his master in the law whether barrister or solicitor or attorney. but in the late nineteenth century, law faculties began to develop in the universities of london, oxford and cambridge, and gradually also in other universities through the country, especially after the end of the second world war. in consequence, the number of academic lawyers has dramatically increased. during this period, we have seen the growth of the legal textbook. it is difficult nowadays to imagine the difference between a practitioner's library of 1886 and one of 1986. in 1886 there were very few legal textbooks available, apart from practitioners' manuals. today there are innumerable textbooks published on every subject. obviously, some have a strongly practical slant, and many are still composed or edited by practitioners; but many, and especially those of the highest quality, are the work of academic lawyers, sometimes lawyers of the highest distinction. every competent practitioner has textbooks at his elbow as he works in court, or in barristers' chambers or in solicitors' offices. but the influence of the jurist does not stop there. with the growth of law faculties in the universities, we have seen the development of what is now called the academic stage of legal education within the universities, and indeed polytechnics, all over the country; and today over three-quarters of those who enter the profession of law in england, whether as barristers or solicitors, will have taken a law degree. it follows, of course, that during their most impressionable and formative years, these young men and women will have come under the influence of their law teachers and of their writings, both in books and in law journals. this too provides a stark contrast 91 the denning law journal with the state of affairs of 100 years ago or even 50 years ago, just before the war. in the old days, it was not thought that law was a suitable subject for a liberal education; the best minds studied classical literature in the latin and greek languages, philosophy, ancient history modern history, english literature, economics and the sciences were admitted to the club only in relatively recent years. but law was regarded as technical, black letter learning, more suitable for apprenticeship in a practitioner's chambers. all that has changed. it is now recognised that law is in itself an admirable subject for university study, combining both rigorous mental discipline and, if the structure of the course is sound, an element of history and an introduction both to philosphy and to social science. it is difficult to overestimate the influence of the jurist in england today both on the formation of the view of young lawyers and in the development of the law. indeed, we now live in the age of the legal textbook. it is the textbook which provides the framework of principle within which we work. the prime task of the jurist is to take the cases and statutes which provide the raw material of the law on any particular topic; and, by a critical re-appraisal of that raw material, to build up a systematic statement of the law on the relevant topic in a coherent form, often combined with proposals of how the law can beneficially be developed in the future. there has thus been provided for all lawyers,practitioners and students, an established framework for the consideration of each problem as it arises. there has grown up a common understanding of principle, which facilitates a discussion of each problem, and indeed the decision of each case in court. i find it difficult to imagine how i could carry on my work without modern legal textbooks, many of which are of an astonishingly high quality. and it is interesting to observe that this is as true of subjects which are codified, as it is of those which are not. if i have a problem on the sale of goods, i turn straight to my copy of benjamin on sale, despite the existence of the sale of goods act; just as, if i have a problem on the conflict of laws, i turn straight to my copy of dicey and morris. with the benefit of textbooks of this quality, codes are, generally speaking, unnecessary; they are surplus to requirements. for all practical purposes, textbooks are as informative as any code could be, indeed more so; and they lack all the defects of codes, since they can be changed without difficulty as the law develops, and they encourage, rather than inhibit, the gradual development of the law. to put it shortly; propositions of law in a textbook need not aspire to completeness; they may be expressed to be subject to doubt; they may be changed without legislation; and judges are at liberty to depart from them, if persuaded that it is right to do so. it is likely, however, that the next period of our legal history will see the growth of a new influence upon the development of the law. i refer to the growing importance of comparative law. in the nineteenth-century, english lawyers saw comparative law essentially in historical terms, as we can see evidenced especially by the work of sir henry maine. but in the twentieth century, fostered by french and more especially by german scholars, we have seen the growth of an ideal that civilised societies should be enabled, for their mutual benefit, to share the same 92 judge, jurist and legislature principles of law, especially in private law affecting individuals who nowadays move freely among different countries and who transact an increasing volume of business. at first, it was thought that it was only possible to compare systems oflaw which shared a common basis of principle; and for that reason, comparative study tended to be confined to those systems which, to a greater or lesser degree, were derived from roman law. the common law, with its entirely separate legal history, tended to be excluded. but, especially since the second world war, with the expansion of legal scholarship, with the settlement of distinguished german jewish scholars in england and their enrichment of our culture, with the spread of the english language throughout the free world and, as a result, the readier availabilityof english sources to continental scholars, and with visits of continental scholars to generous and hospitable american universities with all these things, we have seen a marked change; and nowadays, comparative study tends to embrace all the legal families of the world. indeed, the common law family, not only because of its enormous size and influence, but also because of its rich and separate history, exerts a peculiar fascination upon, in particular, german scholars. yet another influence towards comparative study has come from the accession of the united kingdom to the european economic community, with its programme for unification of the law; and to some extent also the development of international conventions, notably in the fields of maritime law and of international sale of goods, has contributed to the movement. but, as i gaze into the crystal ball, it is not in the adopting of binding uniform laws that i see the most fruitful developments in this area. for uniform laws are more usually the result of economic and political pressures, even of sheer horse-trading, than of rational acceptance of optimum solutions. i see the most fruitful development in the work of scholars, as jurists from each of the great legal families of the world learn more and more about each other's systems and gradually perceive in particular areas the advantages and disadvantages of each. it is not, i think, difficult to approach the study of comparative law with a degree of objective detachment from one's own legal system: indeed, it is a remarkable fact that the study of the legal system of another country enables a lawyer to learn more about his own. it is, i think, even possible that there will develop among comparative lawyers some degree of consensus as to where, for example in the law of contract, the most desirable principles are to be found. in this way, just as the american law institute has published restatements of the law which, though not binding, have provided a unifying influence upon the differing legal systems applicable in each state of the united states, so we may see the publication of works by european comparative lawyers of a similar kind in which, no doubt with considerable qualifications, some selection may be made of the most desirable principles which might be generally applicable in various branches of private law. at all events, in whatever form the development takes place, we are, i think, bound to see an enrichment of our legal culture on an unparalleled scale through the increasing study of comparative law. indeed i like to think that, in the future, 93 the denning law journal the best english legal textbooks will cease to be critical statements only of english law and that they will no longer rely only on english sources. the modem english jurist tends to specialise closely in the study of one or two subjects. if, as i hope and expect, he extends his vision to the study of those subjects as treated in other systems oflaw, his statement of english law can, and should be, set, to some extent at least, in a comparative context. in this way, practitioners in common law countries, and especially judges in those countries, will be exposed to new ideas which will not only enrich their understanding of their own law, but may influence them to develop it in ways which previously might not have been thought possible. the dominant influence of the jurist in the development of the law is in this way likely to acquire new strength. but it is essential that judge and jurist should not only in fact co-operate in their work of development of the law; but that they should perceive that it is inevitable and desirable that they should do so. if judge and jurist and i include in the latter expression not only those who work at universities and polytechnics, but also those who labour at the law commission if they can understand and recognise each other's respective functions, if they can regard each other's work with mutual respect and each other's problems with mutual sympathy and understanding, then the future can be bright indeed. and if, as i believe we can, we add to co-operation between judge and jurist a greater readiness to learn from the legal systems of other countries, not only in the common law world, but also in the civil law countries, then the common law may be about to embark upon the most fruitful period of development in its long, eventful, history. i began this lecture with a quotation from pope gregory the great's correspondence with st augustine. let me end with another. among the questions which st augustine posed to pope gregory was the following: "since we hold the same faith, why do customs vary in different churches? why, for instance, does the method of saying mass differ in the holy roman church and the churches of gaul?" pope gregory's reply was as follows: "my brother, you are familiar with the usage of the roman church into which you were brought up. but'if you have found customs, whether in the church of rome or of gaul or any other that may be acceptable to god, i wish you to make a careful selection of them, and teach the church of the english, which is still young in the faith, whatever you have been able to learn with profit from the various churches. for things should not be loved for the sake of places, but places for the sake of good things. therefore select from each of the churches whatever things are devout, religious, and right; and when you have bound them, as it were, into a sheaf, let the minds of the english grow accustomed to it." 94 judge, jurist and legislature if i may transpose that passage from the context of religion to the context of law, then i would say, in the words of some dickensian character i forget which them's my sentiments entirely; though bede himself would simply have added, devoutly, amen. 95 the law, politics and morality the right. hon. lord hailsham of marylebone* the object of this article is to explore some of the difficulties involved in the complex relationship between morality, politics, the law, and, where and if it is relevant, religion. the answer proposed is that the question depends on a correct analysis of the nature of each of these interrelated but conceptually different intellectual and philosophical disciplines. there are all too many people who talk as if it is only necessary to establish that conduct of a particular kind is either morally a duty or morally wrong in order to be able to assert that either action by the government or the law to encourage, discourage, prohibit, or enforce such conduct more than usually with a criminal sanction behind it, is not only permissible but necessary. i believe this belief to be both misguided and demonstrably false. on the other side of the fence there are just as many reputable characters who suggest that morality, law and political action by governments have very little or perhaps even nothing in common with the result that no one of these disciplines of thought and action ought to have any influence on decision making in any of the other spheres. whilst i have more sympathy with the second view than the first, i believe it to be equally demonstrably false and quite as dangerous if it be allowed to become a guide to conduct or policy. in both cases the error lies, partly at least, in a false analysis of the subject. but the subject is also confused by a tendency on the part of those on either side of the controversy who seek to argue from first principles to neglect the fact that to found a valid conclusion all syllogisms require a minor premise as well as a major, and that the conclusion must logically flow, according to the modes of the syllogism, as a correct synthesis inferred from both. admittedly i do not believe in the aristotelian basis or technical phraseology of this proposition, but as a mental corrective to muddled thinking i find it invaluable. it is also a good discipline for the clergy and hierarchy at least of my own denomination, and perhaps of others, to reflect that, whilst their first principles in morality (where they have any) may be impeccable, as judges and analysts of disputed questions of fact (which has to inform their minor premises) their credentials and qualifications are at least open to question. "kg, chancellor of the university of buckingham. 59 the denning lawjournal it is, i believe, rather easier to demolish the case of those who seek to exclude moral issues from politics and law than for those who seek to affirm a one for one correspondence. as the late professor h. a. prichard divined at least as long ago as 1905 the history of western moral and political philosophy has very largely proceeded on the demonstrably false basis of seeking to define the requirements of law and political authority in terms other than those of the categories of value judgments to which they are properly applicable. thus the sophist thrasymachus at the beginning of plato's republic, austin the liberal writer on jurisprudence in the nineteenth century, and the late adolf hitler in the twentieth, all founded law on a positivist basis by saying respectively that law is the interest of the stronger, the command of the ruler, or "das is recht was der fuhrer gefiillt." i do not find legal positivism either in that form or in the more sophisticated language of professor hart who, i believe, propounds the view that law is what the courts will decide, at all attractive. the first three at least confuse all law with its relatively minor component, criminal law, and, in defiance of montesquieu, confuse the executive and legislative branches of government. all four make the error of seeking a purely formal definition of the subject without reference to its purpose or content. more attractive, but equally fallacious, both in its original and in its more modern forms, is the specious doctrine of utilitarianism, which seeks to find the justification for law and policy in terms of the greatest happiness of the greatest number or the common good or the interest of the majority. this at least makes some effort to establish some criterion of what law ought to be as distinct from what it is, and to set up a bench mark to distinguish good laws and good policies from bad. the alternative seroice book of the church of england rather fatuously embraces this philosophical heresy by enjoining us all to pray that we may seek the common good rather than any particular interest. but, apart from the fact that the philosophical concept of a good which is at the same time good and common to an entire community and all embracing can be an ignis fatuus, the whole utilitarian concept breaks down when one reflects that both individuals and minorities have rights as well as duties, and that one at least of the functions of law is to protect these against the rest of the world, the weak against the strong, the less numerous minorities against the more numerous majorities, the poor against the rich, the vulnerable rich against depredation by the poor and even occasionally the individual against the rest of the world. numbers do not necessarily enter into it, and, so far as the common good is concerned, one of the functions of law in a civilised society is to protect the interests of the individual against the state. attempts to explain law or policy in terms of anything else except justice (which is indefinable) or virtue (which is equally indefinable) have thus failed, and, i believe, in principle are bound to fail. is there anything to be said on the other side? is law or its policy simply concerned with morality and nothing else? is there, as some would seem to suppose, a one for one correspondence between the one and the other? 60 the law, politics and morality clearly this is not so. some law, and criminal law in particular, has some secondary concern with states of mind (mens rea as it is called in the jargon as distinct from external acts, the actus reus as lawyers have illiterately labelled it). but in the main this is the exception rather than the rule. law is primarily concerned with conduct rather than states of mind, and in particular with conduct considered to have socially desirable or undesirable consequences. in particular law is primarily concerned with past conduct, with situations which have arisen and come up for decision even when one is constrained to admit that one of the objects of legal policy must be to encourage socially desirable conduct and discourage its opposite. despite the late lord atkin's reference to the lawyer's question in the good samaritan parable, there is no law which says that thou shalt love thy neighbour as thyself. in donoghue v. stevenson i the more modest proposition achieved by atkin's judgment was that if a manufacturer was so negligent as to put a snail in a bottle of ginger beer he might be just as liable in damages to the ultimate purchaser as the retailer of the same bottle caught by the provisions of the sale of goods act in so far as these involve a warranty of quality. neverthless, though one may reject the general positivist thesis that law is what the courts will decide, one may readily embrace the theory, which is not positivist, that law is concerned exclusivelywith that body of doctrine which the courts must apply and with the matters which are brought before the courts to which they are bound to apply it and the methodology or procedure they adopt to set about their business. the qualification is that the body of doctrine itself is to be seen as a coherent whole and cannot be defined except in terms of a set of moral values which can neither be argued away nor defined out of existence, but nevertheless are not to be supposed to correspond on a one for one basis with the precepts laid down for the individual conscience by, say, the ten commandments or either of the two great commandments said to constitute the golden rule. this is because courts are concerned with the practical questions of enforceability, the existing body of doctrine established, in the case of common law by precedent, in the case of statute law by the words on the statute book; whereas morality is concerned with the exercise of what we choose to believe is our free will. so far, i have endeavoured to show that morality and law, though interconnected, have no one for one correspondence with one another. but there are now two other interconnected components to this quadrilateral, the policy of governments and the legislation of parliaments. despite montesquieu and the valiant, though partly unsuccessful, attempts on the part of the founding fathers of the american constitution to separate the two entirely, in countries, like our own, equipped with a fully developed cabinet system, these two arms of government are inextricably intertwined, even though in theory they remain conceptually distinct. 1. [1932] a.c. 562. 61 the denning law journal it would, i think, be morally repugnant even to suggest that the policy of government or the enactments of the legislature can or should be wholly disconnected from moral imperatives or prohibitions. but i would at least claim that it is equally absurd to argue that there could be a one for one correspondence between the actions of government (internationally or internally) or legislatures and the private morality of individuals. in part, of course, what i have already said about the relationship between law as administered in the courts and private morality applies equally in this sphere. there is a fundamental philosphical distinction between what is imposed voluntarily as the result of the dictates of conscience and the exercise of free will from within and what is imposed externally by the implied threat of physical coercion or sanctions by the will of third parties, in this case political authority. it is this which explains much of the debate which has occurred over a wide range of subjects between ministers, prelates and priests on the one hand and practising politicians on the other. it is also at the root of much debate within parliament between the rival political factions there represented. it is quite one thing for a preacher to ask his congregation to put their hands in their own pockets and contribute more generously to christian aid, the church of england children's society, the friends of the local hospital or the repair of the heating apparatus in the church. but, although some or all of these may be entitled to some support from public funds, quite different moral and practical considerations arise when a debate takes place as to whether and to what extent each or any is to be supported by contributions from taxes, public borrowing, or local rates under threat that if the component of such taxes is not paid, the tax or ratepayer will be sold up or put in gaol. still less is it appropriate to employ the language of "generosity" or "meanness" to officials or ministers whose duty it is to spend not their own but other people's money. there is another factor, also of a practical nature which politicans have to take into account, and that is the relationship between the global total of public monies they expend, and the national capacity to generate new wealth upon which ultimately all public expenditure has to draw. clearly this is not simply a question of quantity. a new road may actually assist the generation of new wealth. the same is not true, at least over the same time scale, of money spent on transporting grain by air to ethiopia, or a good many other, even when wholly laudable, ways of spending public money. the difference is even more stark when one enters the field of international relations. subject to treaty and convention (in which i include the charter of the united nations) international law is still based on the sovereign independence of international legal persons, that is states, primarily as regards their internal affairs, and, to a limited extent, even as regards their international obligations, and there are no more determined upholders of this principle than the members of the eastern bloc and the chinese peoples' republic. the demand for independence of former colonial territories against their former imperial sovereigns was based on precisely the same theories. 62 the law, politics and morai.lty now it so happens that the great majority of the human race live under regimes morally, socially or politically repugnant to the morality of others. a system of "sanctions", economic or overtly military, designed to prevent the outbreak of aggressive war with an apparatus for invoking them was instituted by the charter of the united nations, and with good reason after the outbreak of two world wars and the failure to prevent the second after the failure of the milk and water regime of the old league. but a habit has grown up of states or groups of states (often themselves not beyond reproach) imposing unilaterally or demanding the imposition by others of "sanctions" of doubtful efficacy against regimes the internal or external policies of which they disapprove. i myself doubt the efficacy of most such measures, but i question still more strongly the principle of selectivity either of the proposed victims or the proposed authors of such sanctions, and the morality or legality of the basis for their imposing them. i may be right about this, or wrong. i do not pretend that the argument is an easy one or that there are not considerations to be weighed on both sides. but this is irrelevant for my present purpose. my present purpose is simply to claim it as obvious that the kind of considerations, ethical, or practical, to be weighed on either side are not identical either with the dictates of private morality on the individual conscience, or with the considerations which should weigh with governments or parliaments in the determination of their internal policies or their domestic legislation, and that both differ in principle from the sort of policy considerations which should weigh with states or groups of states which constitute the international community. hitherto i have spoken of a quadrilateral, consisting of private morality, the law as administered by a system of courts, the public policies of governments, and legislatures, in relation both to their own peoples, and to other members of the international community of which they are part. the moral i have sought to draw is that, though ethical considerations and morality are not to be divorced from any of these, their application to the different fields to which i have referred is in each case quite different, and any attempt to apply a one for one correspondence between any two of them is doomed from the start to failure. i now come to the fifth, and all pervasive element, namely religion or the absence of it. this is a much more difficult discussion and for two reasons. the first is that, if one believes, as i personally do, in "natural law" , a most difficult and controversial idea, both its constraints and imperatives are as apparent to an intelligent and sensitive agnostic or a theist as they may be to a devout and practising christian. the second is that religion is not primarily about morality at all, but about the private and public worship of god, or gods, whether jehovah, apollo, kali, shiva, priapus, cloacina, hathor or whatever. nonetheless no religion has been able wholly to distance itself from some aspects of morality. old father zeus, who was really a horrible old reprobate who killed or castrated his father, turned himself into a bull or a swan to satisfy his sexual inclinations, and played a wholly irresponsible part in the siege of troy, none the less protected suppliants, and punished breakers of oaths, and those who abused the laws of 63 the denning law journal hospitality. as pagan religion developed, more and more reflective pagans came to think in terms of religious sanctions behind moral laws, and this has happened all over the world in apparently disconnected religious cultures. but, of course, as a christian, i am primarily concerned with the monotheistic religion attributed to abraham, and still embodied in the three world religions of judaism, islam, and christianity, the peoples of the book as the moslems call them. to them at least religion is all pervasive, and all absorbing, and all three lay down different, but closely related, moral codes designed as a pattern for human life, and for every human society to a greater or less extent a pattern of social behaviour, and even jurisprudence. it is of these that i mostly refer when i talk about the relationship between religion and my quadrilateral of private morality, law as administered in the courts, the policy of governments, and parliamentary legislation. it is indeed against the professional casuists and clergy of established churches, synagogues, mosques, and the like that i direct my criticisms. the most serious of these is their fundamental and all too common error of identifying themselves and other members of their cloth with the religious community itself in which they, with an important but, nonetheless, very highly specialised, function of their own, are numerically an extremely insignificant minority. there is no gainsaying the fact that most christians, moslems, and jews are what one would describe as laymen and not pastors, priests, rabbis, ayatollahs or whatever, and though no one in a free society would deny the legal right of these specialists of limited function to express their own opinions (however foolish or perverse) on whatever subject they choose, the idea that they have some special access to infallibilityin areas of which they have no special access to truth, such as those in which their laymen have and they have not specialised experience, is too ridiculous to merit serious consideration. to begin with, it ignores the simple proposition with which i began, that in order to found a credible opinion on any contentious matter, it is necessary to make a correct analysis of the practical and factual basis in order to form a reliable minor premise. in the second place, i wish that, in practice, they would understand that their primary function is to carry out their specialised duties, and contentious activities and opinions, especially when intemperately expressed may actually interfere with these. it is generally accepted that royal persons, judges, civilservants, and officers in the armed forces must put some professional restraint on their right of self expression and curb their tongues and actions in order to perform their several functions in society. might one not also plead for a certain degree of self discipline in the same direction on the part of religious dignitaries if they are to maintain the loyalty and coherence of their various flocks? there is, i believe, a sound philosophical and historical reason for expressing this hope. the religions of the book have aptly been described as the salt in the dish, and the leaven in the lump of dough. it may, and should, be all pervasive, but, being all pervasive, it performs a similar function in the separate parts of the same whole. in a primitive state of society it may be difficult to discern whether a moses was commander in chief of the armed forces, prime minister, archbishop of 64 the law, poi .itics and morality canterbury (or even pope or ayatollah), lord chief justice, chancellor of the exchequer or even, for a period, leader of the opposition. indeed there were phases in the career of moses when he appeared to occupy each one of these several posts. in a more sophisticated political, social, economic, and religious community it may be that these several functions are better performed by different sets of people. however this may be, i hope to have established that, though ethical and moral considerations can never be disconnected from policy, domestic or international, law or legislation the relationship betwen each and all the others differs both as to the principles involved and as to the facts, and that the functions of those concerned with each to some extent disentitle them from claiming to speak with authority on the specialised functions of the other. 65 101 denning law journal 2018 vol 30 special issue pp 101-119 the commonwealth principles (latimer house) on the relationship between the three branches of government: twenty years on karen brewer and peter slinn* abstract 2018 marks the twentieth anniversary of the latimer house ‘process’ which commenced with the drafting of the latimer house guidelines for the commonwealth on good practice governing relations between the executive, parliament and the judiciary. since then the latimer house guidelines have been transformed into the commonwealth principles (latimer house) on the relationship between the three branches of government which have been endorsed by commonwealth heads of government on several occasions. this article assesses the role of the latimer house process over the last two decades against the background of the commonwealth’s evolving commitments to good governance and the rule of law. part 1 explores the role of the commonwealth in supporting good governance and the rule of law whilst part 2 considers and evaluates the latimer house process itself. part 3 reviews the development of the commonwealth principles in practice whilst in part 4 some specific implementation issues concerning the judiciary are discussed. part 5 considers the future development of the commonwealth principles whilst part 6 provides a conclusion and overview. keywords: latimer house ‘process’; latimer house guidelines; relations between executive, parliamentary and judiciary; commonwealth principles (latimer house); good governance; rule of law; the commonwealth (of nations); commonwealth law ministers; commonwealth heads of government; intergovernmental policy; latimer house toolkit; commonwealth ministerial * dr karen brewer is secretary general of the commonwealth magistrates’ and judges’ association. dr peter slinn is vice-president of the commonwealth legal education association. the associations were co-sponsors (with the commonwealth lawyers association and the commonwealth parliamentary association) of the joint colloquium which adopted the latimer house guidelines in 1998. as members of the latimer house working group, both dr brewer and dr slinn have remained closely involved with the promotion and implementation of the latimer house principles. 102 the commonwealth principles (latimer house) on the relationship between the three branches of government action group; edinburgh plan of action; harare principles; democratically elected governments – overthrow of; declaration of commonwealth principles; appointment-discipline-removal of judges gender balance in parliament; expulsion of members of parliament; chogm (commonwealth heads of government meeting); commonwealth ministerial action group; commonwealth associations; the modern commonwealth. introduction 2018 marks the twentieth anniversary of the latimer house ‘process’ which commenced with the drafting of the latimer house guidelines for the commonwealth on good practice governing relations between the executive, parliament and the judiciary. since then the latimer house guidelines have been transformed into the commonwealth principles (latimer house) on the relationship between the three branches of government which, as noted below, have been endorsed by commonwealth heads of government on several occasions. this article assesses the role of the latimer house process over the last two decades against the background of the commonwealth’s evolving commitments to good governance and the rule of law. part 1 explores the role of the commonwealth in supporting good governance and the rule of law whilst part 2 considers and evaluates the latimer house process itself. part 3 reviews the development of the commonwealth principles in practice whilst in part 4 some specific implementation issues concerning the judiciary are discussed. part 5 considers the future development of the commonwealth principles whilst part 6 provides a conclusion and overview. part 1. the commonwealth, good governance and the rule of law the commonwealth is a voluntary association of fifty-three independent and equal sovereign states that uniquely is not formed by a binding treaty such as that established through membership of the united nations. consensus has been at the heart of the commonwealth association ever since, but the nature of that consensus has evolved since 1950 in both scope and complexity. in 1949, the governments of the then eight members of what was still styled at the beginning as the ‘british commonwealth of nations’ adopted the declaration of london, identified by sir william dale as the ‘foundation document of the modern commonwealth’.1 the declaration was primarily concerned with the 1 the text is found in sir william dale, the modern commonwealth (butterworths 1983) 39. the denning law journal 103 ingenious formula whereby india could remain a member of the (no longer british) commonwealth after becoming a republic on the basis of the acceptance of the british king as ‘a symbol of the free association of its independent member nations and as such head of the commonwealth’. the principles guiding this re-branded association were alluded to in the vaguest terms: members declared that they remained ‘united as free and equal members of the commonwealth of nations, freely co-operating in the pursuit of peace, liberty and progress’ [our italics]. from 1949 until 1969, regular meetings of commonwealth ‘prime ministers’ (28 heads of government by 1969) issued increasingly lengthy communiqués dealing with matters of common concern such as the rhodesia (now zimbabwe) crisis, the middle east, trade, aid and development. the communiqués contained no general statement of principles, though it could be discerned that the commonwealth consensus embraced notions of democratic governance, international co-operation, peaceful settlement of disputes and the promotion of economic development. more particularly, the 1964 communiqué referred to race relations and the need for each member country to build a structure of society ‘which offers equal opportunity and non-discrimination for all its people, irrespective of race, colour or creed’.2 in 1971, at their meeting in singapore, commonwealth heads of governments (the designation replacing that of commonwealth prime ministers, given that a number of members now had executive presidents) took the significant step of adopting a declaration of commonwealth principles. this included a clear commitment to democratic political processes: we believe in the liberty of the individual, in equal rights for all citizens regardless of race, colour, creed or political belief, and in their inalienable right to participate by means of free and democratic political processes in framing the society in which they live. we therefore strive to promote in each of our countries those representative institutions and guarantees for personal freedom under the law that are our common heritage.3 two subsequent declarations in 1977 and 1979 were concerned with addressing apartheid in sport and the elimination of racism and racial prejudice. however in 1991, heads of government adopted the harare commonwealth declaration as a more detailed statement of the fundamental principles set out at singapore, with a 2 meeting of commonwealth prime ministers, 1964, final communiqué, the commonwealth at the summit, commonwealth secretariat, (1987) 83. 3 ibid 156–57. 104 commitment to the protection and promotion of the fundamental political values of the commonwealth, i.e: • democracy, democratic processes and institutions which reflect national circumstances, the rule of law and the independence of the judiciary, just and honest government; • fundamental human rights, including equal rights and opportunities for all citizens regardless of race, colour, creed or political belief.4 heads of government also pledged themselves to work, inter alia, for equality for women, ‘so that they may exercise their full and equal rights’. these references to the rule of law, democratic processes, fundamental human rights and equality for women provided the inspiration for the future latimer house process. the harare declaration contained no provisions for enforcement or compliance monitoring. however, at their meeting in auckland in 1995, heads of government adopted the millbrook action programme on the harare declaration.5 this established the commonwealth ministerial action group (cmag) on the harare declaration ‘in order to deal with serious and persistent violations’ of the principles contained in that declaration, in particular in the event of the overthrow of a democratically elected government. cmag’s task was to recommend measures to restore democracy and constitutional rule, including as a last resort suspension from membership of the association. it may be thought that because of its nature as a voluntary association of nations, the commonwealth might not have effective power to persuade individual countries to conform to its principles. certainly some ‘suspended’ countries have flirted or threatened to join other international entities, for example nigeria joined the francophonie after it was suspended from the commonwealth in 1995. however, with the exception of zimbabwe and the maldives which, when threatened with the process, chose to leave the commonwealth, the historic ties of member nations has provided a driving force behind compliance with the requests from the commonwealth in regard to the re-establishment of democratic processes in the gambia, nigeria, pakistan, fiji islands and the solomon islands.6 4 commonwealth statement on apartheid in sport (the gleneagles agreement) (1977); meeting of commonwealth prime ministers (n 3) 198; lusaka declaration of the commonwealth on racism and racial prejudice (1979); meeting of commonwealth prime ministers (n 3) 217; harare commonwealth declaration vol 2, p 82. 5 harare commonwealth declaration vol 2, p 156. 6 in 2018, zimbabwe applied to re-join the commonwealth. the commonwealth principles (latimer house) on the relationship between the three branches of government the denning law journal 105 2. the latimer house process the harare declaration invited the commonwealth parliamentary association and non-governmental commonwealth organisations to play their full part in the promotion of the objectives of the declaration. at a meeting of commonwealth law ministers in 1996, the importance of the role played by judges and lawyers in a ‘healthy democracy’ was recognised.7 it was against this background that four commonwealth associations, namely the commonwealth parliamentary association (cpa), commonwealth magistrates’ and judges’ association (cmja), commonwealth lawyers association (cla) and commonwealth legal education association (clea) came together in a joint colloquium in 1998 at latimer house, a country house conference centre in buckinghamshire in the united kingdom. they were supported in their endeavours by the commonwealth secretariat, the commonwealth foundation and the british foreign and commonwealth office. the colloquium brought together for the first time a senior-level group of over fifty participants from twenty-three jurisdictions, including parliamentarians, some holding ministerial office, judges, legal practitioners and legal academicians, to adopt a commonwealth model on ‘parliamentary supremacy and judicial independence’. the object was not only the promotion of dialogue between those at the cutting edge of good governance issues. the colloquium had the specific aim of drafting detailed guidelines as to best practice with regard to relations between the executive, parliament and the judiciary in the promotion of good governance, the rule of law and human rights to ensure the effective implementation of the harare principles. the latimer house guidelines on parliamentary supremacy and judicial independence (the guidelines) which emerged from the deliberations and were adopted by consensus, were intended as an operational manual of good practice rather than yet another highsounding declaration of principle (of which the commonwealth was proving itself only too adept). as recalled at the beginning of this article, it is now twenty years since the drafting of the guidelines, an initiative, it should be stressed, of the four partner organisations, not of commonwealth governments. the preamble to the guidelines recited the fundamental political values of the commonwealth quoted above from the harare declaration.8 from these values 7 communiqué of the meeting of commonwealth law ministers 1996. 8 the full text of the guidelines and subsequent documentation, including the principles (see below) are conveniently set out in a booklet published by the four sponsoring organisations <https://www.cmja.org/downloads/latimerhouse/commprinthreearms.pdf> accessed 20 november 2018. a full account of the latimer house deliberations can be found in john hatchard and peter slinn (eds) parliamentary supremacy and judicial independence: a commonwealth approach (cavendish publishing ltd 1999). 106 the guidelines adopted the principle that, in terms of the relationship between executive, parliament and the judiciary, each ‘institution must exercise responsibility and restraint in the exercise of power within its own constitutional sphere so as not to encroach on the legitimate discharge of constitutional functions by the other institutions’. in essence, the doctrine of separation of powers was imported into the fundamental values of the commonwealth. the document then set out in some detail guidelines concerning the relationship between parliament and the judiciary, the independence of judges and parliamentarians, the role of women in parliament, judicial and parliamentary ethics, accountability mechanisms, the law-making process, the role of non-judicial and non-parliamentary institutions, and measures for implementation and monitoring compliance with the guidelines. the guidelines also dealt with a number of controversial issues, such as the expulsion of members of parliament for ‘floor-crossing’, gender balance in parliament and the appointment, discipline and removal of judges. the guidelines attracted wide notice throughout the commonwealth and their adoption was the beginning of a ‘latimer house process’ which continues to this day. this process was fostered by the determined advocacy of the four sponsoring organisations through what were styled the ‘red channel’ (via commonwealth governments and governmental institutions) and the ‘green channel’ (via independent non-governmental organisations and activities). these channels were interrelated in the sense that the partner organisations recognised that, if the guidelines were to be implemented effectively, they would require endorsement by commonwealth governments. on the other hand the partner organisations needed to retain freedom to hold governmental agencies to account for perceived breaches of the guidelines. the commonwealth legal community were made aware of the guidelines through publicity at conferences of lawyers, legal educators and parliamentarians sponsored by the partner organisations, so that, for example, references to the guidelines began to appear in judicial pronouncements.9 9 in september 1999, the chief justice of trinidad and tobago referred to the guidelines in his opening of the legal year speech in publicly expressing concern over a perceived threat to the independence of the judiciary in his jurisdiction: see <http://webopac.ttlawcourts.org/ lawtermopen/1999.pdf> accessed 20 november 2018. in the same year, the guidelines were cited for the first time in a commonwealth court. the high court of judiciary in scotland referred to the guidelines in holding that a temporary sheriff appointed on an annual renewal basis by the executive did not constitute an independent and impartial tribunal as required by the fair trial provisions of the european convention on human rights: starrs v procurator fiscal (linlithgow) [2000] 1 lrc 718, 737 and 765. subsequent citations of the guidelines/principles from around the commonwealth include that of the chief justice of tonga in tu’ifua v public service tribunal [2014] 5 lrc 588, [15]. the commonwealth principles (latimer house) on the relationship between the three branches of government the denning law journal 107 remarkable progress was made through the ‘red channel’. beginning in 1999, representatives of the partner organisations were invited to participate in a lengthy process of consultation at commonwealth official and ministerial level leading to the formation of a joint working party of ministers and representatives of the four partner organisations. this resulted in a ‘refinement’ of the guidelines into the commonwealth (latimer house) principles on the accountability of and relationship between the three branches of government (the commonwealth principles). commonwealth heads of government at their meeting at abuja, nigeria, in december 2003: …[e]ndorsed the recommendation of their law ministers on commonwealth principles on the accountability of and relationship between the three branches of government. they acknowledged that judicial independence and delivery of efficient justice services were important for maintaining the balance of power between the executive, legislature and judiciary.10 at their next meeting in malta in 2005, heads of government: …[n]oted that the commonwealth (latimer house) principles … 2003, which recognised the importance of a balance of power between the executive, legislature and judiciary, constitute an integral part of the commonwealth’s fundamental political values as set out in the harare declaration’(emphasis added).11 this was affirmed at the commonwealth heads of government meeting in london in 2018. 3. the commonwealth principles: status and enforcement what had begun as a set of guidelines drafted at an unofficial gathering of lawyers, legal academics, politicians and judicial officers from around the commonwealth had now emerged, through a process of consultation in which the unofficial partners had played a full part, as a set of principles accepted by all commonwealth member states as ‘an integral part’ of their fundamental political values. as richard bourne, a leading commentator on commonwealth affairs, has observed: 10 abuja communiqué, para 8, the commonwealth at the summit, vol 3 (commonwealth secretariat 1997) 131. 11 malta communiqué, para 8; abuja communiqué (n 10) 172. 108 at the abuja chogm, leaders not only approved [the commonwealth principles] but, in an unprecedented move, attached them to the 1991 commonwealth harare declaration. this was a spectacular example of the impact of the commonwealth associations on intergovernmental policy, even though practice in countries as varied as pakistan and uganda has failed to live up to it.12 bourne has identified several crucial elements of the latimer house process which should be of general interest to all lawyers concerned with public law in both domestic and international spheres, namely the role of commonwealth associations in shaping the development of the fundamental values of the commonwealth, the legal status of such principles and the problem of compliance. i) the role of the commonwealth associations in shaping the intergovernmental organisation’s fundamental values an examination of the latimer house process suggests that the commonwealth has evolved a system whereby organisations independent of government can play a full part in the development of principles which governments may endorse. of course there is nothing new about recognising the influence of civil society on international policy-making as is witnessed in the environmental sphere. however, the devising of the commonwealth principles represents a significant example of cooperation between ministers, their officials and the commonwealth secretariat on the one hand, and the partner organisations on the other, thus overcoming the suspicion with which ministers and officials often regard ‘civil society’ groups which may be perceived as attempting to insert themselves into decision-making processes which are the sole prerogative of elected governments. ii) the legal status of the commonwealth principles the reference in the malta communiqué is to the principles as being part of the fundamental political values of the commonwealth. does this mean that the harare declaration and other instruments emerging from the chogms are merely statements of political intent and of no legal or normative effect? the legal significance of commonwealth declarations was analysed some thirty-five years ago by sir william dale in his seminal work the modern 12 richard bourne, ‘the commonwealth and civil society’ in james mayal (ed.) the contemporary commonwealth: an assessment 1965–2009 (routledge 2010) 128. the commonwealth principles (latimer house) on the relationship between the three branches of government the denning law journal 109 commonwealth.13 as noted earlier, commonwealth member states are not mutually bound by agreements binding in international law so as to attract registration under article 102 of the united nations charter. however, dale concluded: the commonwealth declarations emanate, as do the united nations declarations, from an organised body, the heads of government meeting, a principal organ of the commonwealth association… the heads of government are able to ensure –subject to the requirements of their domestic constitutions – that [the commitments contained in the declarations] are carried out…. the instruments may also, as evidence of state practice, contribute to customary international law.14 the issue has been further explored, in the light of developments since 1983, by one of the present writers who argues that, at the very least, commonwealth declarations fit comfortably into the character of ‘soft law’. non-binding legal instruments may involve commitments in good faith which are expected to have normative significance for the way states behave.15 commonwealth declarations in relation to human rights, the rule of law, gender equality and good governance, as particularly reflected in the commonwealth (latimer house) principles, thus reinforce the development of international law and processes whereby: both textually and in practice the international legal system is moving towards a clearly defined democratic entitlement, with national governance validated by international standards and instruments and systematic monitoring of compliance.16 this approach is strengthened by the inclusion of the commonwealth (latimer house) principles as an integral part of the ‘affirmation of commonwealth values and principles’ by heads of government meeting in trinidad and tobago in 2009. as we shall see, the principles are also embodied in the commonwealth charter of 2013.17 13 dale (n 1) 48–51. dale had been legal adviser in the commonwealth office when it was a separate department of state in the united kingdom government. 14 ibid. 15 peter slinn, ‘the commonwealth and the law’ in mayal, op cit, pp 32–34. 16 thomas franck, fairness in international law and institutions (oup 1995) 139, quoted in slinn (n 15). 17 available at <http://thecommonwealth.org/our-charter> accessed 20 november 2018. 110 iii) monitoring of compliance the ‘systematic monitoring of compliance’ has proved problematic as far as the commonwealth (latimer house) principles are concerned. the original 1998 guidelines envisaged that: [i]f these guidelines are adopted, an effective monitoring procedure, which might include a standing committee, should be devised under which all commonwealth jurisdictions accept an obligation to report on their compliance with these guidelines…. considerations of these reports should form a regular part of the meetings of law ministers and heads of government.18 whilst the cmja, cla and clea have tried to establish their own monitoring mechanism and other commonwealth-accredited organisations have called for some form of evaluation of the implementation of commonwealth fundamental values,19 funding has proved elusive to date for such a venture. the principles, as they emerged at abuja, from the process of refinement, contain no reference to such procedures, merely stating that the objective is: …[t]o provide, in accordance with the laws and customs of each commonwealth country, an effective framework for the implementation by governments, parliaments and judiciaries of the commonwealth’s fundamental values.20 in 2005, a forum of representatives from all eighteen african commonwealth countries organised by the commonwealth secretariat led to the production of a plan of action for africa (the nairobi plan of action for africa) on the implementation of the principles. this was adopted in revised form for the commonwealth as a whole at a colloquium held in edinburgh in 2008. these plans of action urged governments to establish mechanisms to monitor and evaluate their implementation in their respective jurisdictions. whilst the nairobi plan of action for africa was endorsed by governments, this was not the case with the edinburgh 18 guideline ix ‘measures for implementation and monitoring compliance’, secretariat text, p 23 <www.cmja.org> accessed 20 november 2018. 19 ‘democracy in the commonwealth: a report on democracy 18 years after the harare declaration’ produced for electoral reform international (eris) and the commonwealth policy studies unit (cpsu) 2009 by kwadwo afari gyan, asma jahangir and tim sheehy. 20 see booklet (n 8) 10. the commonwealth principles (latimer house) on the relationship between the three branches of government the denning law journal 111 plan of action and no mechanism for evaluating the implementation was established.21 however, the question of the implementation of the principles has remained on the agenda of commonwealth law ministers. in 2011, commonwealth law ministers adopted recommendations from a rule of law expert group to encourage heads of government to give better effect to them.22 in yet another report commissioned by heads of government, an eminent persons group (epg) considered means of strengthening the core values of the commonwealth. the epg recommended the appointment of a commonwealth commissioner for democracy, rule of law and human rights and the adoption of a charter for the commonwealth encapsulating in a single document the principles embodied in the singapore and subsequent declarations and statements. the commissioner proposal foundered on the unwillingness of governments and of the then secretary general to accept an independent monitoring mechanism of any kind. however, the charter proposal did find favour. after much amendment of the original draft appended to the epg report by michael kirby, a distinguished former australian high court judge, the charter was adopted in 2012 and formally signed in march by the head of the commonwealth.23 however, this charter is not a legal instrument binding on member states. it is a declaration by ‘we the people of the commonwealth’ of the core values and principles of the organisation, including those of latimer house. perhaps not surprisingly, there are no references to any monitoring or enforcement mechanisms and the charter appears to be aspirational in nature rather than prescriptive. it might appear that a decisive step had been taken to ensure the implementation of the commonwealth’s fundamental values at the auckland chogm in 1995 by the establishment of the commonwealth ministerial action group (cmag) which comprised a rotating group of nine ministers of foreign affairs, i.e. a governmental peer review mechanism. as noted above, cmag has proved of limited effectiveness except where a complete breakdown of constitutional governance has occurred. however, in 2011 cmag, as a watchdog protecting the commonwealth fundamental values, moved from considering only military or coup-led attacks against democracy, to dealing with ‘serious or persistent violations of commonwealth fundamental political values that do not involve an unconstitutional overthrow of a democratically 21 ibid 47. 22 communiqué of the commonwealth law ministers meeting, sydney, australia 2011. 23 the text of the charter was presented to the british parliament as a command paper in march, 2013, cm 8572. commonwealth accredited organisations were given the opportunity to make submissions and the latimer house working group made a submission which was to some extent reflected in the text. 112 elected government’. cmag recognised that the commonwealth had ‘added important principles to those contained in the harare declaration such as the commonwealth (latimer house) principles’, so that cmag now had a mandate to invoke breaches of the principles in calling a government to account for serious or persistent violations of commonwealth fundamental values.24 the difficulties posed by a cmag intervention on this basis may be illustrated by the example of the maldives. in september 2016, the maldives government was given six months by cmag to address concerns including the detention and prosecution of opposition leaders, interference with the judiciary and undermining of democratic institutions. the response of the maldives government was to leave the commonwealth, alleging that it had been treated unjustly and unfairly by cmag, and that the maldives were being targeted by cmag and the commonwealth secretariat ‘in the name of democratic promotion, to increase the commonwealth’s own relevance and leverage in international politics’. all the commonwealth secretary general could do was to express her ‘sadness and disappointment’.25 4. specific problems of implementation: the case of the judiciary aside from cases referred to cmag, there has been persistent evidence of breaches of the commonwealth’s fundamental values in jurisdictions which have never experienced military rule and which ostensibly maintained a democratic system under the rule of law. as discussed below, it has been left to the latimer house group, working outside of government through the ‘green channel’, to draw attention to these breaches and attempt to hold governments to account. upholding the independence of the judiciary provides an important case study. in a number of instances the independence and personal safety of judicial officers and parliamentarians has been threatened. for example, a military takeover in pakistan led to the judges being required to take a new oath of office or face dismissal. subsequently, the supreme court of pakistan, in dealing with a constitutional challenge to the military take-over, vigorously asserted the independence of the judiciary. however, it found that the conduct of the deposed 24 strengthening the role of the commonwealth ministerial action group (cmag) report by cmag adopted by the commonwealth heads of government meeting 2011 (commonwealth secretariat). 25 a succinct account of the withdrawal and reaction thereto can be found in michael safi, ‘maldives quits commonwealth over alleged rights abuses’ (the guardian online 13 october 2016). the commonwealth principles (latimer house) on the relationship between the three branches of government the denning law journal 113 democratically elected government had been such in terms of corruption, mismanagement and abuse of the independence of the judiciary and the rule of law as to justify the military intervention under the doctrine of necessity. however, after the restoration of civilian rule and of the dismissed judges, the supreme court nullified the earlier judgment and ruled the military take-over unlawful.26 in 2018, the political situation in pakistan remains volatile. however, the election of the leader of the opposition as prime minister through a largely peaceful transition may mark a departure from the habitual chaos and violence of pakistani politics.27 in some countries, such as australia, the separation of the judiciary from legislative and executive powers and the separation of the judicial officers from political activity have been rigorously maintained. in other countries where the system is based on the westminster model, checks and balances against abuse of power may not be as effective as in those countries which have enshrined the principle of constitutional supremacy so all actions of the organs of the state have to conform to the constitution as the supreme law. an independent, honest and impartial judiciary is integral to upholding the rule of law, engendering public confidence and dispensing justice. in a number of commonwealth countries despite the well-intentioned provisions in the constitutions which provide for equality of opportunity, appointment on merit and the removal of gender and other historical discriminations, appointments are subject to the whims of the executive. the principles outline the requirements of all commonwealth countries to have in place a system where: a. judicial appointments should be made on the basis of clearly defined criteria and by a publicly declared process. the process should ensure: • equality of opportunity for all who are eligible for judicial office; • appointment on merit; and • that appropriate consideration is given to the need for the progressive attainment of gender equity and the removal of other historic factors of discrimination; b. arrangements for appropriate security of tenure and protection of levels of remuneration must be in place; c. adequate resources should be provided for the judicial system to operate 26 khan v musharaf [2008] 4 lrc 157; sindh high court bar association v pakistan [2010] 2 lrc 319. 27 imran khan, the former international cricketer was elected in august 2018. see also interim report of the commonwealth observer group on the pakistan election july 2018 (available on the commonwealth secretariat website). 114 effectively without any undue constraints which may hamper the independence sought; d. interaction, if any, between the executive and the judiciary should not compromise judicial independence. well-established parliamentary procedures for the removal of judges exist in all commonwealth constitutions. however, these mainly affect judicial officers in the higher courts although even then some countries have disregarded the constitutional or parliamentary process. magistrates and district court judges may not benefit from the same security of tenure and can often be removed by a simple decision made by the attorney general as happened in the gambia under the jammeh regime. this issue was highlighted at the 2018 triennial conference of the cmja which adopted the brisbane declaration on the independence and integrity of judicial officers of the lower courts.28 even the perception that there may not be security of tenure may require a change in the system of appointment. this was demonstrated in scotland following the judgment in the starrs v procurator fiscal (linlithgow)29 where it was successfully contended (citing what were then the latimer house guidelines) that the existing system of appointment of temporary sheriffs brought into question their independence. as a result of this judgment, the system of appointing sheriffs was radically changed and there are no longer any temporary sheriffs in scotland. in other cases where judicial officers do not benefit from constitutional protection, the same individual rights under article 10 of the universal declaration of human rights should apply to them.30 it is recognised that parliaments are primarily responsible for law-making. in some commonwealth countries the judiciary has been charged with ‘judicial activism’ especially in the area of human rights where since 198831 judicial officers have increasingly made reference to norms established by international 28 available on the cmja website (n 18). 29 linlithgow (n 9). 30 article 10 provides that ‘everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of [their] rights and obligations and of any criminal charge against [them]’. 31 the judicial colloquium on the domestic application of international norms held in bangalore, india, concluded inter alia that: ‘it is within the proper nature of the judicial process and well-established judicial functions for national courts to have regard to international obligations which a country undertakes – whether or not they have been incorporated into domestic law – for the purpose of removing ambiguity or uncertainty from national constitutions, legislation or common law’. the commonwealth principles (latimer house) on the relationship between the three branches of government the denning law journal 115 treaties for the purpose of deciding cases where domestic common law is ambiguous. this is inevitable in a world which has been progressively moving towards globalisation. however, judicial officers remain sensitive to the fact that it is parliament that has primacy in the law-making process and that they are accountable to the constitution and to the law. in most cases where this has happened, the country may have already signed and/or ratified an international convention but not integrated the international norms into domestic law. article ii of the commonwealth principles states: a. relations between parliament and the judiciary should be governed by respect for parliament’s primary responsibility for law making on the one hand and for the judiciary’s responsibility for the interpretation and application of the law on the other hand. b. judiciaries and parliaments should fulfil their respective but critical roles in the promotion of the rule of law in a complementary and constructive manner. as the third pillar of democracy, the judiciary cannot operate without resources. in a number of instances, funding has been cut to the judiciary (whether through limitation of salaries, non-repair of court buildings or reduction of budgets for improving access to justice and similar projects) in order to exert influence over judicial officers who may not be toeing the executive line. sufficient and sustainable funding needs to be provided to the judiciary so that it can perform its functions. it is recognised that shortfalls in national incomes have to be taken into account in all budgets. however, parliaments which are responsible for agreeing national budgets must ensure provision of adequate resources to the judiciary so that they can ‘operate effectively without any undue constraints which may hamper the independence sought’.32 5. towards implementing the commonwealth principles a number of commonwealth countries are already making progress in implementing the commonwealth principles. in the united kingdom where the separation of the judiciary from the legislative and executive has been in modern times a strong convention of the constitution, the major constitutional reforms enacted in 2005 removed perceived anomalies which appeared at variance with the principles embodied in the latimer house guidelines. for example, the lord 32 article iv(c) of the principles. 116 chancellor is now merely a government minister (and not necessarily a lawyer!), having lost both legislative and judicial roles. the judicial committee of the house of lords was replaced with a supreme court, separated institutionally and physically from parliament. further, the informal system of judicial appointments has been replaced by a process involving a judicial appointments commission.33 the united kingdom can now be considered formally in compliance with the commonwealth principles. as an example of good practice, the australian capital territory legislature commissioned an audit of the implementation of the principles in the territory.34 sadly, this audit precedent has not been followed in other jurisdictions. the commonwealth principles are now firmly entrenched in the fundamental political values of the commonwealth. however, given the refusal of commonwealth governments to accept any formal monitoring mechanism (such as the rule of law commissioner proposed by the epg high-level review and the failure of cmag to carry out its full mandate), the four sponsoring organisation have been left with the task of holding member states to account for any alleged breaches of the principles. they have contributed to the development of tools to ensure best practice such as the benchbooks for legislatures produced by the commonwealth parliamentary association35 and the guide for the magistrate in the commonwealth: fundamental principles and recommended practices which was produced by the cmja in 2017. they have also undertaken training for parliamentarians, lawyers and judicial officers and provided regular confidential briefings to meetings of commonwealth law ministers and senior officials. in addition, the cla, clea and cmja have produced joint statements drawing public and official attention to such breaches. joint statements in the form of press releases have been issued, inter alia, in relation to the impeachment of the chief justice of sri lanka, the forced removal and deportation of a magistrate from nauru, the removal of three judges in zambia, the threat of impeachment of judges in botswana, the arrest and detention of lawyers and judges in the cameroon, executive threats against the judiciary in kenya and threats to the position of the chief justices of lesotho and the seychelles.36 the effect of these statements is hard to assess. the intervention may have contributed to the restoration of the 33 for a succinct summary of the 2005 reforms, see david mcclean, ‘judicial reform in the united kingdom’ (2005) 16(1) commonwealth judicial journal 25. 34 report of the act legislature 2009: available at <https://www.parliament.act.gov. au/_data/assets/pdf_file/0003/690213/2015-02-act-report-on-the-latimer-principles. pdf> accessed 20 november 2018. 35 see the website of the cpa at <www.cpa.org> accessed 20 november 2018. 36 the full texts of all these statements are available on the cmja website: see n 18. the commonwealth principles (latimer house) on the relationship between the three branches of government the denning law journal 117 impeached chief justice of sri lanka after a change of government in 2015 even though she promptly resigned her position. also regarding the seychelles, a report of a fact-finding mission by the southern african chief justices forum relies on the principles and the guidelines in relation to judicial accountability and judicial security of tenure.37 the commonwealth principles and the role of an independent media the principles closely follow the guidelines in the issues that are considered paramount to a modern democracy, including the role of an independent media which can promote government accountability as well as the role of other independent bodies whose role it is to scrutinise and oversee the integrity of the executive’s activities. article ix states: a. steps which may be taken to encourage public sector accountability include: the establishment of scrutiny bodies and mechanisms to oversee government enhances public confidence in the integrity and acceptability of government’s activities. independent bodies such as public accounts committees, ombudsmen, human rights commissions, auditors-general, anticorruption commissions, information commissioners and similar oversight institutions can play a key role in enhancing public awareness of good governance and rule of law issues. governments are encouraged to establish or enhance appropriate oversight bodies in accordance with national circumstances. government’s transparency and accountability is promoted by an independent and vibrant media which is responsible, objective and impartial and which is protected by law in its freedom to report and comment upon public affairs. the bodies referred to in article ix are essential in maintaining public confidence and awareness of the rule of law. they are also the front line in fighting against corruption, one of the priorities of commonwealth countries seeking to develop economically. it is a well-proven fact that economic development requires a strong, effective, and transparent legal system. foreign investment is not forthcoming without such the structures in place. the principles urge the promotion of ‘zero-tolerance’ for corruption as being vital to good governance. 37 report of the southern african chief justices forum on the fact-finding mission to the republic of seychelles, june 2018, available at <https://sacjforum.org> accessed 5 september 2018. 118 in 2018, an ad hoc working group convened by the commonwealth journalists association and including representatives of the cla, clea and cpa adopted the ‘commonwealth principles on freedom of expression and the role of the media in good governance’ in what was a conscious imitation of the development of the commonwealth (latimer house) principles.38 the promoters of these principles hope that they too will be embodied in some form by heads of government as part of the commonwealth’s fundamental values. 6. conclusion and overview the commonwealth (latimer house) principles call for judiciaries and parliaments to ‘fulfill their respective but critical roles’ for otherwise this can severely impact on the good administration of justice. the edinburgh plan of action noted that ‘each new generation of government officers, parliamentarians, lawyers, judicial officers and members of civil society has to be alert to the imperatives of, and balance between, the independence and accountability of the judiciary, parliament and the executive…’.39 most problems which arise in the commonwealth derive from a continued lack of understanding of each institution’s role in the governance process. the edinburgh plan of action also called for more regular awareness training, on appointment or election, of parliamentarians, judicial officers and public servants on basic constitutional principles and the primary roles of each pillar of democracy in the constitutional process. in 2013, the commonwealth secretariat commissioned the cla, clea, cmja and cpa to develop a ‘latimer house toolkit’ to enhance the dialogue between the three pillars of democracy whilst not compromising their independence. published in 2015, the four associations are still waiting in 2018 to assist the commonwealth secretariat to roll out of this toolkit in order to promote better respect between the three organs of the state in order to ensure that ‘each commonwealth country’s parliaments, executives and judiciaries are the guarantors in their respective spheres of the rule of law, the promotion and protection of fundamental human rights and the entrenchment of good governance 38 ‘the development of these principles has been inspired by the example of the latimer house principles’: commonwealth principles on freedom of expression and the role of the media in good governance, introduction p 3. the principles <https://commonwealth. sas.ac.uk/sites/default/files/files/publications/commonwealth%20principles%20on%20 freedom%20of%20expression%20and%20the%20role%20of%20the%20media%20in%20 good%20governance.pdf> accessed 5 september 2018. 39 note (4) of the edinburgh plan of action for the development, promotion and implementation of the commonwealth (latimer house) principles (2008), booklet p 40. the commonwealth principles (latimer house) on the relationship between the three branches of government the denning law journal 119 based on the highest standards of honesty, probity and accountability’. in this, the associations derive comfort from paragraph 13 of the chogm communiqué of april 2018: heads reaffirmed their commitment to the commonwealth (latimer house) principles on the accountability and the relationship between the three branches of government (2003) as an integral part of the commonwealth’s fundamental political values. heads requested the commonwealth secretariat work in partnership with other commonwealth organisations in promoting dialogue between the three branches of government, including through the full application of the latimer house toolkit, which provides a practical guide to enhancing the separation of powers.40 thus the latimer house process, twenty years on, is in bourne’s words, ‘a spectacular example of the impact of commonwealth associations on intergovernmental policy’.41 the principles thus must be seen as a commitment to the core commonwealth values and as a benchmark by which the performance of all commonwealth countries should be judged. 40 the toolkit, a comprehensive set of guidance in a number of volumes, with illustrative case-law from the law reports of the commonwealth, lexis-nexis, 1985 to date, was published by the commonwealth secretariat in 2015 <http://thecommonwealth.org/keyreform-area/57> accessed 20 november 2018. 41 bourne (n 12). human rights, 'arranged' marriages and nullity law: when do 'force', parental 1 denning law journal 2015 vol 27 pp 1-44 ‘magna carta in the twentieth and twenty first centuries’ michael j beloff qc  introduction the great charter is often portrayed as the source of english liberties: a medieval document which projected its beneficent light forward over eight centuries and which, while representing the triumph of barons over monarch, brought to birth principles which had equal resonance for an age of representative governance and universal suffrage. such portrayal is naturally and explicably depicted in brighter colours in this its 800 th anniversary with celebrations, exhibitions, conferences, a new and scholarly book co-authored by none other than the recently retired lord chief justice, the aptly named lord judge, 1 and a no less scholarly but more sardonic one by the historian and television pundit david starkey 2 and last but not least, these lectures under the auspices of the university of buckingham. i am particularly happy to be invited to give the first of these lectures since it enables me to discharge my obligation as a visiting professor which, i regret, that i have hitherto honoured only in the way of the oxford don who, when asked during a mid-twentieth century inquiry into the governance of the university about his teaching duties, replied ―i have to give an annual lecture – but not, you understand, every year‖. the sumption thesis in his iridescent address to the friends of the british library ―magna carta then and now‖, 3 lord sumption, probably the most gifted lawyer,  blackstone chambers.visiting professor of law visiting professorial lecture delivered at the university of buckingham 29 th april 2015 to mark the 800 th anniversary of the signing of magna carta. 1 anthony arlidge and igor judge, magna carta uncovered (hart 2015). 2 david starkey, magna carta: the true story behind the charter (hodder and stoughton 2015). 3 lord sumption, ‗magna carta then and now‘ (address to friends of the british library 9 march 2015). magna carta in the twentieth and twenty first centuries 2 and certainly the most gifted historian in the supreme court, exercised an erudite iconoclasm to deride the claims of those who saw the charter as the foundation stone of democratic government and the parent of the rule of law as ―high minded tosh‖. following in the august footsteps of professor (and later sir) john holt whose study was published on the 750 th anniversary of the charters sealing, 4 he made the irrefutable point that, like any legal instrument, the magna carta had to be understood in its historical context. the baronage who compelled king john to submit to their demands at runnymede were doing no more than seeking to enforce on him ―conventions which were profoundly traditional and obligations which he and his predecessors had acknowledged for more than a century‖. 5 they were concerned more about matters which touched on their finances and standing than about infant constitutional principle. it was lawyers of later epochs who, as lord sumption demonstrated, put a halo around magna carta; sir edward coke who defended the courts against royal interference and was, as a result of his pains, dismissed from the high office of chief justice of the kings bench by james i, used the years of his enforced retirement to seek ideological revenge on the stuart monarchy and declared ―magna carta is such a fellow that he will have no sovereign‖. 6 (though the charter in latin is female, coke‘s epigram reflects a gender bias current then and indeed for several subsequent centuries). maitland, the doyen of english legal historians, at the turn of the last century described magna carta as ―the nearest approach to an unrepealable fundamental statute that england ever had‖, 7 though many of its provisions had already been repealed, and, as i shall explain later, only a handful have survived a still later legislative cull. a case-centric approach given the plurality of ways in which others, like lord sumption himself, far more eminent and knowledgeable than i, have expatiated on the larger themes whether as believers or belittlers, i thought i would select a smaller and distinct topic: paint a miniature rather than a fresco and consider whether and, if so, how it has continued to impact directly on 4 j c holt, magna carta (cup 1965). 5 sumption (n 3). 6 during the parliamentary debates on the petition of right. 7 frederick pollock and frederic maitland, history of english law (vol i i. i 73). the denning law journal 3 the domestic jurisprudence of this country since the start of the twentieth century. i say domestic because paradoxically magna carta has been more influential in the courts of the usa than in the courts of the (previously) mother country. lord sumption states ―in 1991 it was calculated that magna carta had been cited in more than 900 decisions of state and federal courts to date‖ adding sardonically ―generally in support of propositions that would not have been recognised by the barons at runnymede‖ 8 though i suspect that even the qualification ―generally‖ is itself over generous. by contrast, by his calculation magna carta has been cited in no more than 170 judgments of the superior courts in england since 1900. my search engine westlaw actually bought up 171 cases, which makes somewhat modest the assertion in halsbury‘s statutes that is has been ―more than once referred to in the law reports‖. 9 i can honourably claim to have considered all 171 of them, 10 but once i probed beneath the surface of these statistics it appeared that some such references were to commentaries on the cases rather than dicta in them, 11 and several others were to the same case but at different level of the judicial hierarchy, and some even to the same case at the same level. 12 yet other references were simply to a case name: there is an otherwise unmemorable personal injury case called walton v magna carta polo; 13 to a magna carta lecture delivered by lord falconer, 14 the former lord chancellor, to legal metaphor: the companies act 1862 was described by sir francis palmer as ―the magna carta of co-operative enterprise.‖ 15 a judgment of lord mansfield that the crown could not levy taxes in the island of grenada after its capture from the french was described as ―the 8 sumption (n 3). 9 halsbury’s statutes (4th edn, 2013) 81. 10 with the invaluable assistance of elaine wintle our chambers information officer. 11 for example roger smith magistrate, magna carta a living will. 2014 70(6) p 28-29. 12 r (mohammed) v secretary of state for foreign and commonwealth affairs [2010] ewca civ 65, [2011] qb 218. 13 [2000] cly 1694. 14 r (on the application of al rawi) v secretary of state for foreign and commonwealth affairs [2008] qb 289. 15 re lehman brothers international (europe) (in administration) [2015] ewca civ 485. magna carta in the twentieth and twenty first centuries 4 magna carta of the colonies‖; 16 its constituent act was described as ―the magna carta of the manchester ship canal co‖, 17 to parliamentary statements themselves not always accurate, 18 and allusions in cases in the european court of human rights where the magna carta was mentioned by way of embellishment of the narrative or analysis 19 but, for obvious reasons, not critical to the result since that court‘s jurisdiction is founded in and bounded by the european convention on human rights. finally there are gratuitous judicial mentions of academic articles dealing with aspects of magna carta. 20 in a case on whether the west beach at newhaven could be registered as a village green under the commons act 2006 lord carnwath, in discussing public rights of recreation over the foreshore made use of an article in the yale law journal in which ―the author traced the history of the law from its roman roots through magna carta to the more modern law in england and america‖. 21 in r v b 22 the court had to consider whether in a trial of several defendants for sexual abuse of children it was open to the judge to try together those who were fit to plead and those who were not. the decision turned on the meaning and effect of section 11(4) of the juries act 1974 but thomas lj wrapped himself in scholarly garb by referring to an article by professor oldham on anglo-american special juries. 23 the lesson is, put not your trust in search engines: they can accumulate but they cannot differentiate. there was much chaff and little wheat but i shall nonetheless do my best to bake it into something nutritious for your consumption. oddly the graph of references in the cases, reported and unreported, has curved upwards in the last few years 16 woolwich equitable building society v irc [1993] ac 70 (hl) 116 (lord goff). the case was campbell v hall (1774)1 cowp 204. 17 the calgarth (1927) 93 (ca). 18 r (nikonovs) v governor of brixton prison [2005] ewhc 2405, [2006] 1 wlr 1518 where the issue was whether the extradition act 2003 had overridden habeas corpus and scott baker lj at (19) quoted baroness scotland saying in the house of lords debate ‗habeas corpus as we know and love it which was given birth to by magna carta remains‘. magna carta was not the parent of habeas corpus. see further below some conflicting dicta on the point. 19 for example case 3455/05 a v united kingdom [2009] echr, case 7397/01 kyprianou v cyprus [2005] echr 873, case 34044/96 streletz v germany [2001] echr. 20 see below. 21 r (on the application of newhaven port and properties ltd) v east sussex cc [2015] uksc 7, [2015] 2 wlr 601, 124. 22 [2008] ewca crim 1997, [2009] 1 wlr 1545. 23 ibid [23]. the denning law journal 5 but, i suspect, through coincidence rather than in anticipation of this anniversary. a statute surviving and speaking magna carta still features in halsbury‘s statutes in the volume on constitutional law 24 although pride of place in terms of antiquity in taken by the statute of westminster 1275, if only because the version of magna carta in that classic and comprehensive summary of english law is that confirmed in 1297 by edward i. the four clauses which survive from the nine still standing on the statute book in professor holt‘s time 25 include two which are little known, those which protect the privileges of the church, 26 and those which protect the privileges of the city of london, 27 the church and the city being in 1215 in the barons camp. the remaining two have far greater resonance: clause 39 which provides: ―no freeman shall be taken or imprisoned or disseised or outlawed or exiled or any in way ruined, nor will we go or send against him, except by the lawful judgment of his peers or by the law of the land.‖ and clause 40 which provides: ―to no-one will we sell, to no-one will we deny or delay right or justice.‖ 28 i say four, although in halsbury, which as i said uses the 1297 update, not the 1215 text, amalgamates clauses 39 and 40 into a single clause 29, provoking the same mild irritation in the reader as do the references in the post lisbon version of the treaty of european union in which key articles have been renumbered but, and it is some consolation, then carry the 24 halsbury’s statutes (n 9) vol 10, para 53 although in swaffer v mulcahy [1934] 1 kb 608 (kb) it was noted ‗neither magna carta nor the statute of westminster the first was on the statute roll.‘ 25 holt (n 4) 1. 26 magna carta 1215 (9 hen 3), clause 1. 27 ibid, clause 13. 28 both were originally clause 29. magna carta in the twentieth and twenty first centuries 6 legend ―ex article‖: an aid to understanding not conceived of by the thirteenth century draftsman. judges in their judgments have tendered to meander between the two versions, but i will be faithful to the earlier text. the first two, guarantees to church and city, survived, according to professor holt, ―because they were harmless confirmations of rights and privileges conveyed by other instruments‖ 29 and have required almost 30 no modern judicial exegesis, though one may wonder whether in a multi faith britain the church‘s special rights will remain unchallenged. the third and fourth are the jewels in the crown of magna carta and the source of most of the recent judicial dicta. i shall return to that case law shortly, but make this prefatory comment that the introductory reference to freemen (but not villeins) as beneficiaries of the right in clause 39 confirms that it was not intended by the barons to be enjoyed by hoi polloi or the plebs, the toxic word used, according at any rate to mr justice mitting, by former cabinet minister andrew mitchell to the downing street policeman. for magna carta to play any role in modern jurisprudence at all, it has to be classified as an always speaking statute, a phrase popularised by lord steyn to indicate that statute should be given its current, not simply its historic meaning, 31 an approach which would be disliked by a 29 ditto. 30 in my lecture i said ‗no‘ without the qualification. but on the very same day the court of appeal handed down its judgment in sharpe v bishop of worcester [2015] ewca civ 399 about whether a parish rector was an employee or worker so as to qualify for rights under modern employment legislation. lady justice arden at [110] surmised that the article embraced ‗freedom of thought and conscience for individual incumbents free from interference by parishioners or the church hierarchy‘ but went no further since no reliance had been placed on it by the rectors‘ counsel. 31 see for example r v ireland [1998] ac 147 (hl) 158 (lord steyn). bearing in mind that statutes are usually intended to operate for many years it would be most inconvenient if courts could never rely in difficult cases on the current meaning of statutes. recognising the problem lord thring, the great victorian draftsman of the second half of the last century, exhorted draftsmen to draft so that ‗an act of parliament should be deemed to be always speaking:‘ thring, practical legislation, (london 1902) 83. in cases where the problem arises it is a matter of interpretation whether a court must search for the historical or original meaning of a statute or whether it is free to apply the current meaning of the statute to present day conditions. statutes dealing with a particular grievance or problem may sometimes require to be historically interpreted; but the drafting technique of lord thring and his successors have brought about the the denning law journal 7 transatlantic originalist like justice scalia of the united states supreme court to whom the us constitution means what it meant when drafted, no more, if no less. obsolete provisions whatever approach to interpretation is used, many of the rights guaranteed or obligations imposed in magna carta have no scope for application in the todays world. we know no more of scutage; 32 there are multiple and more ingenious modern ways to tax us. novel dissessin, mort d‘ancestor, darrein presentment and the writ of praecipe 33 34 have vanished from our legal lexicon. we have scant concern with mortmain, 35 or subinfeudination. 36 no one peer, commoner or cleric is at risk of amercement. 37 the fate of the relations and followers of gerard d‘athee 38 is not at the apex of the political agenda. developing and elaborate legislation for consumer protection has made obsolete the charter‘s insistence on uniform measures of wine, ale, corn and cloth throughout the kingdom; 39 while justices, constables, sheriffs and bailiffs (or their analogous contemporary officials) are still expected ,as clause 45 enjoins, to ―know the law of the land and mean to observe it well‖ 40 there are rules and regulations, training and discipline rather than mere general exhortation to the monarch to ensure the continuation of such happy state of affairs. nor is this obsolete character a cause for unalloyed alarm. some of the charters articles are the antithesis of emancipatory. at least two are antisemitic, 41 in particular setting limits to jewish activities as moneylenders; situation that statutes will generally be found to be of the ‗always speaking‘ variety. 32 magna carta (n 26), clause 12. 33 ibid, clause 18. 34 ibid, clause 34. 35 see discussion in attorney general v parsons [1956] ac 421 (hl) and morelle v wakeling [1955] 2 qb 379 (qb). 36 the subject of re holliday [1922] 2 ch 698 (ch). 37 magna carta (n 26), clauses 20-22. 38 ibid, clause 50. 39 ibid, clause 35. 40 ibid, clause 45. 41 magna carta (n 26), clauses 10 and 11: a point made in a letter to the times of 4 th april 2015 by zaki cooper trustee of the council of christians and jews. magna carta in the twentieth and twenty first centuries 8 and the provision in clause 45 ―no one shall be taken or imprisoned upon the appeal of a woman for the death of anyone except her husband‖, 42 fall short of the highest feminist ideals, even, i stress, taking account of the qualification at the end of the sentence. ancient rights those articles that have perished more slowly en route to today are certainly redolent with the flavour of their times. the first case in the twentieth century, and the only one which predates, to the best of my researches, the first world war, in which magna carta was referred to is williams v thomas. 43 it involved the claims of a widow of an intestate who had himself died in 1885 to an assignment of dower and an account of rent and profits from 1905. on that date, the land from which she had hitherto received since her late husband‘s death a third of the rents from the co heiresses, the defendants to the suit, suddenly became available for highly profitable development similar to the familiar contemporary situation when a farmer receives planning permission to build a housing estate on his fields. the master of the rolls considered the position of the doweress both in law and in equity, and observed: ―at law the doweress was entitled under magna carta to have an assignment of dower by metes and bounds within forty days after her husband‘s death.‖ 44 equity provided no sufficient relaxation of such strict time limits and the widow‘s claim was held barred on account of laches or delay. some of the cases touch on the collision not of private against private but of private against ancient public rights. mr loose, lessee of the lords of the manor of mecham and snettisham argued that pursuant to his lease he had a right which trumped the public‘s right to fish in tidal waters. relying on the presumption of a lost medieval grant from the crown, which had to be a date prior to 1189, given that amongst other matters, as lord justice moore-bick recollected ―magna carta prohibited the creation of new private fisheries‖ 45 so curtailing what would otherwise have been the crown‘s prerogative power to exclude the public right. 42 ibid, clause 54. 43 [1909] 1 ch 713 (ch). 44 ibid 720 (cozens-hardy mr) referring to clause 7 of the magna carta (repealed). see also the mention in national provincial bank ltd v ainsworth [1965] ac 1175 (hl). 45 loose v lynn shellfish ltd [2014] ewca civ 846, [2015] 2 wlr 643 [124]. see also loose v castleton [1981] 41 p&cr 19 (ca). the denning law journal 9 the same starting point featured in the thoroughly modern context of the government‘s fisheries policy and its compatibility with the laws of the european union and european convention on human rights where the judge recorded ―interveners submissions began with the proposition that fish are a public resource, recognised as such as long ago as magna carta.‖ 46 an analogous right was the public right of navigation in tidal waters which formed the backcloth to a dispute between mr moore and the british waterways board 47 where hildyard j commented ―the claimant provided an impressive historical review of the genesis of these rights back past the magna carta which confirmed such rights‖. 48 unfortunately this erudition did not save the day for mr moore because the issue was whether the spot where he wished to berth his craft was or was not in tidal waters and the finding of fact on that critical point was against him. mr roberts was another enthusiast for ancient rights. on acquiring the title to the manor and suburbs of st david‘s, he claimed as successor in title to the eponymous bishops to be entitled to rights in the foreshore granted to them by the crown. in holding that his only right in the foreshore was as to wreck, that is to say to salvage any beached ships, lewison j observed, again, that ―the creation of a several fishery was prohibited by magna carta‖. 49 an avid collector of titles as well as a serial litigant, the same mr roberts, on becoming lord marcher of trellench claimed part of the fee simple in the banks of the severn estuary. the crown relied by way of defence on adverse possession. mummery lj agreed that, among other legal materials cited, magna carta provided ―no man shall be disseised of 46 united kingdom association of fish producers organisations v secretary of state for the environment, food and rural affairs [2013] ewhc 1959, [2013] all er (d) 181 (jul) (cranston j). see further on fishing rights isle of anglesey cc v welsh ministers [2009] ewca civ 94, [2010] qb 163, 35 (carnwath lj) where the challenge was to an order giving exclusive rights of oyster and mussel fishing. anderson v alnwick dc [1993] 1 wlr 156 (ca), nicholls v ely beet sugar factory no 1 [1931] 2 ch 84 (ch). 47 moore v british waterways board [2012] ewhc 182, [2012] 1 wlr 3289. 48 ibid [27]. see also a-g ex yorkshire derwent trust v brotherton [1990] ch 136 (ch). 49 crown estates commissioners v roberts [2008] ewhc 1302, [2008] 4 all er 828 .see too alfred f beckett ltd v lyons [1967] ch 449 (ca): ‗the only public rights in the foreshore which have been recognised by the law since magna carta are those of navigation, fishing and possibly some rights ancillary thereto...‘ irish society v harold [1912] ac 287. magna carta in the twentieth and twenty first centuries 10 his freehold…but by the law of the land‖ but reasoned that ―this could not limit the ability of the crown to rely on statutes of limitation which were not then but are now part of the law of the land‖. 50 such cases and the clauses on which they were based are essentially of antiquarian interest, so i pass from the periphery to the core of the charter, and those clauses inherently capable of adaption. clauses 39 and 40 indeed deal with issues of potential contemporary and general relevance. denial of justice magna carta guarantees the provision of justice to all the kings subjects: whether it entitled foreigners to sue in the kings courts was considered but left open in a case where irish rebels claimed return of money seized from them, 51 but, to whomever it is owed, the right to justice in clause 39 is not unqualified. in r v bracknell ex p griffiths 52 lord simon said 53 ―although magna carta provided that to no man should justice be delayed or denied, it is not unparalleled for the legislature to constitute such lets or hindrances‖. hence, by way of material example, the statutory requirement for mental patients to obtain the leave of the court to bring proceedings 54 or the restraints on vexatious litigants. and statute is not the only source of such qualification. in rost v edwards 55 an mp sought to bring proceedings for libel against the newspaper which alleged that he had improperly disclosed confidential information obtained in his capacity as a member of the commons select committee on energy and that, as a result, he had lost his post as well as his good name. he wished to adduce in support of his claim evidence about matters internal to parliament such as the requirements of the mps‘ register of interests. the question was whether this was prevented as involving the questioning of proceedings in parliament prohibited by the bill of rights 1689. mr justice popplewell ruled in mr rost‘s favour 50 roberts v swangrove estates ltd [2007] ewhc 513, [2008] ch 439 [45]. 51 johstone v pedlar [1921] 2 ac 262 (hl). lord sumner said that ‗an historical inquiry would be of great interest but i doubt if all the necessary material is yet available‘, 291. 52 [1976] ac 314 (hl). 53 ibid, 329. 54 applied winch v jones [1986] qb 296 (ca) 302 (donaldson mr). 55 [1990] 2 qb 460 (qb). the denning law journal 11 stating, with reference to magna carta ―it is important to recognise that there is a no less important principle that the citizens of this country should have free and unrestrained access to the courts of the land‖ but adding, ―subject to the rules of court‖. 56 i would add subject too to such substantive rules as those of parliamentary privilege which, on the facts of that case, the learned judge had found not to stretch as far as the newspaper would have wished. other principles can collide with and override the right not to be denied justice. in de crittenden v bayliss (deceased) 57 the claimant had been cheated out of his share of partnership monies by the late mr bayliss. he brought a claim in debt, and then, only later, sought to trace the money owed to him into property purchased by mr bayliss with it. unfortunately it was by then too late sir christopher staughton said: ―37…there is a latin maxim — interest res publicae ut sit finis litium — it is in the interest of the state that there be an end of lawsuits. that is in my opinion a sound principle, but it is not the whole story. the state has an obligation to provide the apparatus of civil litigation so that citizens may make use of it‖. that can be found in magna carta. nulli vendemus, nulli negabimus, aut differemus — to no one will we sell or deny or delay right and justice. our task is to hold the balance between those principles.‖ ―38… it is regrettable but unavoidable that we have to decide this appeal against mr de crittenden. it may well be that pure justice would require us to entertain the further claims that he wishes to put forward; but, a litigant is obliged to bring forward the whole of his claim at one time. that is not always an absolute rule, but here the effect of embarking on mr de crittenden‘s further claim would require an extensive inquiry which would be difficult or even impossible now to conduct.‖ 58 indeed, paradoxically, the principle that justice should not be denied can be trumped by the principle that justice should not be delayed. in 56 ibid 724. 57 [2005] ewca civ 1425. 58 ibid. magna carta in the twentieth and twenty first centuries 12 allen v macalpine 59 where lord denning mr developed the concept that cases could be struck out on grounds of want of prosecution even if brought within the statutory limitation period, he summarily dismissed an argument that this involved a denial of justice contrary to magna carta with the succinct sentence, ―the delay of justice is the denial of justice‖. 60 rules as to rights of audience can also limit indirectly the means of access, to which itself, individuals have a prima facie entitlement. 61 dr pelling a maths lecturer had a lucrative side line occupation as a professional and paid mckenzie friend in family law disputes. 62 the issue which confronted the court was whether dr pelling was entitled to act in custody proceeding which were held not in public but in chambers. dr pelling argued, noted otton j, that ―there was now a right to a mckenzie friend in proceedings in chambers and for the friend so to act once appointed by the litigant. (he) developed this line of argument by reference to magna carta with an appropriate citation‖. 63 otton j nonetheless held that the requirement for dr pelling to obtain leave of the court before so acting ―cannot be said to be in violation of rights enshrined in magna carta‖, 64 a proposition he thought so obvious that he did not take time to explain it. the court of appeal upheld his decision, without reference to magna carta, but confirmed that the discretion which the judge hearing the custody dispute undoubtedly enjoyed should be exercised by reference to the ―interests of the litigant in person‖ not those of dr pelling 65 which, i suspect rightly, they may have thought were in the forefront of dr pelling‘s concerns. magna carta enjoins the state not to deny access; but it does not necessarily require it to provide access. mr wynne, a prisoner, submitted that the state was obliged to provide him with funds to cover his expenses of travelling to court, even where, as was the case, his seemingly perverse claim was against the state 66 for failure to give him category a status so 59 [1968] 2 qb 229 (ca). 60 ibid 245, applied in barratt manchester ltd v bolton mbc [1998] 1 wlr 1003 (ca) 1010. 61 r v bow county court ex p pelling [1999] 1 wlr 1807 (ca). 62 mckenzie friends are persons, who though not legally qualified, are permitted by the courts to assist litigants in person. 63 ex p pelling (n 61) 1814. 64 ibid 1815. 65 ibid 1827. 66 r v secretary of state for the home department ex p wynne [1993] 1 wlr 115 (hl). the denning law journal 13 that he could be incarcerated in a high security prison. i represented the secretary of state. james munby, now president of the family division, representing the prisoner, had three strings to his bow the third of which was magna carta. the court of appeal held that mr wynne was entitled to come to court, but should pay for the privilege. the house of lords found the issue to be moot, because the prisoner was required to apply for such funding and had not done so, and although wynne‘s was a test case declined to overrule the court of appeal, or for that matter to uphold it. 67 deferment of justice while delays of the kind described so vividly in charles dickens classic ―bleak house‖ are no longer, in the age of the overriding objective of the civil procedure rules and the conversion of judge from referee into case manager, tolerable, or indeed tolerated, delays in dispute resolution can still regrettably occur in her majesty‘s courts. in grahame henry bond v dunster properties limited 68 lady justice arden started her judgment in this way under the heading: ―everyone is entitled to a hearing…within a reasonable time‖. 1. the thrust of the appeal is against the judge‘s findings of fact. a major cause of complaint is that the judge did not hand down judgment until some 22 months after the conclusion of the hearing and that as one result his findings of fact are against the weight of the evidence. this extraordinary delay clearly called for an apology and, if any existed, an explanation of the mitigating circumstances. however, so far as we are aware, there was none. litigation is stressful for the parties, sometimes because they are members of the same family and sometimes because the transactions are commercial in nature and their outcome has implications for other transactions that the parties or others need to carry out. life has to go on before, during and after litigation. in some cases, a delay in producing a judgment may prevent the parties from reaping any benefit from the litigation at all. unfortunately, this case involves both the elements of close family relations and of commercial transactions. irrespective of the respective merits of the appeal, this court has no reservation in 67 see on the same subject an earlier case becker v the home office [1972] 2 qb 407 (ca) where magna carta was relied on without effect (412g). 68 [2011] ewhc civ 455. magna carta in the twentieth and twenty first centuries 14 expressing its sympathies for the parties as a result of the length of time they had to wait for this judgment. we would include others involved in the litigation such as the witnesses and the professional advisers. delays of this order are lamentable and unacceptable…. 3. the opening cross-heading of this judgment is a quotation from article 6 of the european convention on human rights, which has been given protection under domestic law by the human rights act 1998. a ―hearing‖ includes the delivery of judgment. the right is not a new one or one which is alien to the common law. clause 40 of magna carta provides: ―to no one will we … delay… justice‖. of course the unfortunate judge, the object of this criticism, was a mere tyro in the art of delay compared with lord eldon, the long serving lord chancellor of the nineteenth centuries, the delays of some of whose judgments were measured in years, not months or weeks. it is not only claimants who are entitled to a hearing and judgment without undue delay. in r (casey) v restormel bc, 69 a case about a pregnant teenager living in a car whom the local authority had refused to house on the ground that she was intentionally homeless munby j delivered a thunderous peroration. ―27. when this matter was before me on 3 october 2007 i expressed myself in strong terms on the subject of the delay, actual or threatened, to which the defendant had been subjected by the court. 28. the delay, i said, was simply indefensible. i referred to magna carta, expressing the view that the potential delay here amounted to a denial of justice in the sense in which that phrase is used in magna carta…the opportunity for subsequent reflection gives me no reason to moderate my views.‖ which he then expressed over ten trenchant paragraphs ending: ―33. hard pressed local and other public authorities should not be prejudiced, income tax, corporation tax and council tax payers and rate-payers should not be financially disadvantaged, and other more deserving claimants seeking recourse to over-stretched public resources should not be prejudiced, because of delays in the 69 [2007] ewhc 2554 (admin). the denning law journal 15 royal courts of justice. it is fashionable nowadays in some circles to decry as no longer relevant anything more than twenty or thirty years old. but there are some principles that ring down the centuries. magna carta may be only eight years short of its eight hundredth anniversary, but its message in this respect is timeless. and that message needs to be heeded, not least, it might be thought, in the administrative court.‖ 70 in two cases in the sphere of criminal law the issue was the procedures to be deployed when an application was made for an extension of custody limits. 71 in the former sir john thomas president said ―the time limit placed on trying those in custody is a vital feature of our system of justice which distinguishes it from many of other countries...not only does it provide a sure means of compliance with a principle of the common law as old as magna carta that justice delayed is justice denied but it has the collateral benefit that money is not squandered by the unnecessary detention of persons in prison awaiting trial at significant costs to the taxpayer‖: a happy blend of principle and pragmatism. the same emphasis on expeditious justice is found in a whole variety of contexts:  binyan mohammed, a british citizen once detained in guantanamo bay as a suspected terrorist sought disclosure of the united states documents held by the foreign office which he asserted would show that his confessions had been extracted by torture. sir john thomas p,. summarising the courts conclusions, said ―to deny him at this time would be to deny him the opportunity of timely justice in respect of the charges against him, a principle dating back at least to the time of magna carta and which is now a basic part of our common law and of democratic values.‖ 72 70 and, it appears by a non-judicial body such as acas who were told to ‗get on with it‘ in engineers and managers association v acas [1979] 1 wlr 1113 (ca). 71 r (on the application of mccauley) v coventry crown court [2012] ewhc 680 (admin), [2012] 1 wlr 2766. campbell brown v central criminal court [2015] ewhc 202 (admin). 72 r (on the application of mohamed) v secretary of state for foreign and commonwealth affairs [2008] ewhc 2048 (admin), [2009] 1 wlr 2579 [147]. magna carta in the twentieth and twenty first centuries 16  in a complex commercial case where the bank of st petersburg sought to wrest control of a marine group from its then owner mr arkhangelsky 73 and to rely upon a russian judgment, which the english courts refused to recognise, an issue arose as to whether mr arkhangelsky, who wished to counter claim against the bank for conspiracy, deceit, duress and intimidation, could dispense with service on the bank in the commercial court in order to avoid being time barred. lord justice longmore noted that a mr stroilov, described by him as ―an associate of the arkhangelskys..,with a certain knowledge of legal matters who subsequently acted as the arkhanglesky‘s mackenzie friend‖ 74 … (the reference to a certain knowledge being a feline judicial euphemism for an uncertain and imperfect knowledge) ―had before the first instance judge‖ as it was again somewhat ironically put, ―helpfully referred the judge to magna carta‖ though it is unclear what help that judge had derived from the reference, and certainly neither his 75 nor the court of appeal‘s own judgment turned on it. but justice does not have to be delivered instantaneously; in calvey v secretary of state for home department, 76 jackson j was dealing with the aftermath of a decision of the house of lords 77 that the power of the secretary of state to elongate a prison sentence beyond that stipulated by the trial judge was a breach of an accused persons right to have his sentence determined by the judiciary, not the executive. until new provisions to achieve that end were brought in force, ms calvey remained in prison. the judge referred to the argument of his barrister, 78 ―mr newman submits that in the present case there is a deferring of justice or right to the claimant contrary to chapter 29 of magna carta. there will then be long delays before her case can be considered, and by the time her case is considered she will be very close to the end of the 15 year tariff 73 bank st petersburg v arkhangelsky [2014] ewca civ 593, [2014] 1 wlr 4360. 74 ibid [3] (longmore lj). 75 [2013] ewhc 2068 (comm). 76 [2003] ewhc 3450 (admin). 77 r (on the application of anderson) v secretary of state for the home department [2002] ukhl 46, [2003] 1 ac 837. 78 calvey (n 77) [30]. the denning law journal 17 which has been set. if at the end of the day it turns out that the tariff ought to be very much shorter, for example that recommended by the trial judge, then she will have served substantially too long in prison, and that is contrary to magna carta‖, and continued: 79 ―31. i am not persuaded by this submission for a number of reasons… although any delay in enacting legislation to correct incompatibilities between existing legislation and the convention is unfortunate. ‗defer‘ in chapter 29 of magna carta must be construed as meaning ‗defer for an unreasonable period‘. in my judgment, there is nothing unreasonable about the time which is elapsing between the decision of the house of lords in anderson and the likely date when the criminal justice bill of 2003 will pass into law.‖ and there are delays and delays. it was optimistic, to put it at its lowest, for the prospective developers of coin street to complain that the inspector had adjourned the start of the planning enquiry for a mere three months; 80 for two persons convicted of handling stolen goods to seek to set aside their convictions because their trial had taken place more than the specified period of eight weeks from committal, especially since they had pleaded guilty. 81 magna carta, though relied on, availed none of this diverse cohort of litigants. this precept of magna carta can be a sword as well as a shield. one husband was not permitted to seek to appeal a finding of cruelty against him 21 months out of time; 82 another, the subject of a maintenance order for constructive desertion was held not to be entitled to full particulars of the case against him, as might have been the case in a trial in the high court 83 because as simon p said ―magna carta itself linked delay of justice with denial of justice‖ 84 and to require such formality would be inconsistent with the exercise by magistrates of a summary jurisdiction. the principle – no delay in justice – has been deployed in the administrative as well as in the judicial sphere. 79 ibid [31]. 80 grevcote estates v radmor (ca, 1 january 1981). 81 r v spring hill prison governor ex p sohi [1988] 1 wlr 596 (dc) objectionable delays are remediable by abuse of process applications. r v bow street magistrates court ex p choudhury (1990) 91 crim app rep (ca). 82 edwards v edwards [1968] 1 wlr 149 (dc). 83 frith v frith [1962] 1 wlr 1436 (dc). 84 ibid 1438. magna carta in the twentieth and twenty first centuries 18 in r v secretary of state for the home department ex p phansopkar 85 two women, one from india one from bangladesh were denied entry at heathrow when they sought to join their british husbands. both were entitled to enter as long as they had a certificate of patriality under section 3(9) of the immigration act 1971 and both were entitled to such certificate. but the queues at overseas offices for persons seeking entry, composed both of those who sought such certificate, and those who sought other forms of entry clearance created delays of up to 14 months before either woman could have received their the open sesame to england‘s green and pleasant land; hence their attempt to short circuit the process.. the court of appeal quashed the refusal of entry. all the members referred to magna carta. 86 lord denning said that the women‘s rights cannot be taken away by arbitrarily refusing her a certificate or by delaying to issue it to her without good cause, 87 and that bureaucratic delays were not such a cause. scarman lj looked not only back to magna carta but forward to article 8 of the european convention of human rights which protects the right of family life, 88 although, of course, at that time it had not been incorporated into domestic law as it later was by the human rights act 1998. 89 sale of justice it is not unexpected that complaints of sale of justice are all but undetectable in recent times. whatever criticisms may be made of the english judiciary in that timeframe, the charge of corruption is not one the solitary example which i have unearthed concerns the attempt by magistrates in wandsworth to impose, as a prerequisite for granting a licence for increased facilities for drinking, a condition that the licence holder should surrender his other licences. 90 mr justice darling referred to the inhibition in the charter on the sale of justice. he explained in reliance on a learned historical analysis by professor mckechnie, the expert on the 85 [1976] qb 606 (ca). 86 ibid 621 (lord denning mr), 624 (lawton lj), 626 (scarman lj). 87 ibid 621. 88 ibid 626. 89 see also r v chief immigration officer heathrow airport ex p bibi [1976] 1 wlr 979 (ca), r (on the application of fh) v secretary of state for the home department [2007] ewhc 1571, r v secretary of state for the home department ex p mersin [2001] inlr 511 (qb). 90 r v wandsworth licensing justices ex p whitbread & co ltd [1921] 3 kb 487 (kb). the denning law journal 19 charter de ses jours. ―the suitor put his money down not to influence the judgment but to obtain a hearing. it was not that justice was sold. it was that the suitor was entitled to the justice of the kings courts… only as a matter of grace‖. he then mused, ―in the present case it seems to me that there was something in the nature of an attempt to return to the procedures of less civilised times‖. 91 i am bound to comment that i cannot follow the judge‘s train of thought, but he was, as judge, celebrated as much for his eccentricities as for his erudition. he wore a silk hat whilst riding to court on a horse accompanied by a liveried groom. 92 trial by peers trial by one‘s peers is certainly guaranteed by clause 39 but again it cannot stand against later and contradictory legislation. in r (misick) v the secretary of state for foreign and commonwealth affairs, the claimant a former, and controversial, premier of the turks and caicos islands (―the territory‖), sought permission by way of judicial review to challenge the legality of the turks and caicos islands constitution (interim amendment) order 2009, whose effect when brought into force would be to suspend temporarily parts of the turks and caicos islands‘ constitution, by, among other things, removing the right to jury trial. lord justice carnwath said; ―22. in this case, the right to a jury trial has been traced back to magna carta and long-settled practice thereafter‖ but concluded… ―42. there are no arguments which offer a realistic prospect of the claimant‘s case succeeding at a full hearing; the court will not enter into discussion of the merits of the particular measures. in the end, the challenge comes down to one of statutory construction or rationality, and on that basis it is bound in my view to fail.‖ another example in a wholly different sphere, that of libel, the case of cook v telegraph media group limited 93 confirms the point. the salient facts were these: on 17 september 2006 an assistant of mr cook, then an 91 ibid 497. 92 d w smith, the life of charles darling (cassell & co london 1938). 93 [2011] ewhc 763 (qb). http://login.westlaw.co.uk/maf/wluk/app/document?src=doc&linktype=ref&context=6&crumb-action=replace&docguid=i8e63ab501a8611deb1f1d2daa8be8f68 http://login.westlaw.co.uk/maf/wluk/app/document?src=doc&linktype=ref&context=6&crumb-action=replace&docguid=i8e63ab501a8611deb1f1d2daa8be8f68 magna carta in the twentieth and twenty first centuries 20 mp, made a £5 offertory donation at a battle of britain church service in stockton. mr cook quite properly reimbursed his assistant. he then improperly, and certainly unwisely, included the £5 in his own claim for reimbursement of his expenses as an mp. it was predictably rejected. however, the very fact that he had made it became an issue in 2009 when the daily telegraph published its series of articles on mps‘ expenses which attracted very wide publicity. mr cook boldly brought a suit for libel against the newspaper for their critical comments on his behaviour. the issue before mr justice tugendhat was whether there should be trial by jury or trial by judge alone. the judge delved into history… ―101. blackstone discussed separately the merits of trial by jury in civil actions in which the state was not a party. book iii at p 379ff. it reads: ―the impartial administration of justice … is the great end of civil society. but if that be entirely intrusted to the magistracy, a select body of men, and those generally selected by the prince or such as enjoy the highest office in the state, their decisions, in spite of their own natural integrity, will have frequently an involuntary bias towards those of their own rank and dignity: it is not to be expected from human nature, that the few should always be attentive to the interests and good of the many… the most powerful individual in the state will be cautious of committing any flagrant invasion of another‘s right, when he knows that the fact of his oppression must be examined and decided by twelve indifferent [i.e. impartial] men not appointed till the hour of the trial.‖ despite these resonant comments, the judge recognised the clear trend in modern case law, fortified by legislation, 94 which made the traditional practice that a citizen‘s reputation should presumptively be in the hands of twelve not one obsolete, and ended: ―115. this multiplicity of opportunities to argue the same point 95 is one of the major reasons why the costs of libel actions have become so disproportionate as to risk condemnation as an interference with freedom of expression and the right of access to 94 see now the defamation act 2013. 95 on what the allegedly defamatory words meant. the denning law journal 21 the court (see mgn v uk [2008] echr 1255 ). in these circumstances the effect of the human rights act 1998 is to require judges and parliament to continue to develop the law to make it convention compliant. trial with a jury makes such development more difficult. 116. taking all these considerations into account, i see no reason to exercise my discretion in this case to order this action to be tried with a jury, and every reason to order trial by judge alone.‖ in that case the judge had also, if maybe superfluously in a civil case, cited blackstone on criminal trials: ―98. as to criminal cases, blackstone‘s commentaries on the laws of england book iv (1769) p342–3 includes the following: ‗the trial by jury … is also that trial by the peers of every englishman, which, as the grand bulwark of his liberties, is secured to him by [magna carta]… in times of difficulty and danger, more is to be apprehended from the violence and partiality of judges appointed by the crown, in suits between the king and the subject than, than in disputes between one individual and another.‖ yet even in that sphere the trend is clear. more cases are delegated to the magistracy; and the notion that complex commercial crimes would be better tried by specially composed courts with a degree of financial expertise, and the concern that juris verdicts are unreasoned is the subject of continued policy debate. magna carta will be prayed in aid by those who object to such trend but prayers cannot stand out against a parliamentary majority. 96 lord devlin once described the jury was ―the lamp that shows that freedom lives‖; 97 but it is a lamp whose light is being progressively dimmed. but when juries are provided, of what must they consist? who are the peers to which clause 39 refers? in r v danso & hodge 98 mr hodge convicted of a series of serious offences of violence made, as the court of appeal‘s judgment recited a whole series of complaints to the effect that it was wrong for him to be tried by 12 whites, who included, he complained, 96 ‗no doubt the next target will be the jury‘ lord hutchinson of lullington qc thomas grant, jeremy hutchinson’s case histories. (john murray 2015) 371. 97 patrick devlin, trial by jury (stevens & sons ltd 1956) 164, cited in r v mirza [2004] ukhl 2, [2004] 1 ac 1118. 98 [2005] ewca crim 620. http://login.westlaw.co.uk/maf/wluk/app/document?src=doc&linktype=ref&context=11&crumb-action=replace&docguid=i5fb840f0e42311daa7cf8f68f6ee57ab magna carta in the twentieth and twenty first centuries 22 seven women. he had submitted that is not a trial, amongst other things, by his peers in accordance with, amongst other things, magna carta, or with requirements of fairness. 99 this argument, along with others, in which in scattergun style, he blamed indifferently judge, police, prosecution and his former legal advisers for undermining his defence and failing in their respective duties, was summarily dismissed. the law on juries, then and now, is race and gender blind. unlawful detention magna carta provides no guarantee of life, but it does protect liberty which stands between life and the pursuit of happiness as the objectives in the declaration of independence. in the famous belmarsh case where legislation allowing for the detention without trial of foreign, but not british, nationals suspected of involvement in terrorism was held unjustifiably discriminatory 100 lord bingham said ―in arguing the fundamental importance of the right to personal freedom the appellants were able to draw on the long libertarian tradition of english law dating back to clause 39 of the magna carta, given effect in the ancient remedy of habeas corpus, declared in the petition of right 1628, upheld in a series of landmark decisions down the centuries and embodied in the substance and procedures of the law to our own day.‖ 101 scarcely less eloquent were the words of lord phillips, his successor as senior law lord, in a mental health case 102 ―the common law respects and protects the personal freedom of the individual which may not be curtailed save for a reason and in the circumstances reflected in the law of the land. this principle is reflected in but does not depend on article 5(1) of the european convention on human rights. it can be traced back to chapter 29 of magna carta 1297 and before that to chapter 30 of magna carta 1215.‖ 103 99 ibid [52]. 100 a v secretary of state for home department [2005] ukhl 56, [2005] 2 ac 68. 101 ibid [36]. 102 r (on the application of brandenburg) v east london and city mental health nhs trust [2003] ukhl 58, [2004] 2 ac 280. 103 ibid [6]. the denning law journal 23 inter arma leges silent? especially in times of war, laws and orders designed to protect the community against potential threats have had to be tested against that historic bedrock; and now with legitimate anxieties about the presence of an enemy within, not as before aliens but even british citizens, the same exercise – the balance of private rights against public interests – is required. mental health but it is not only in such extreme situations that the principle is engaged. in a case which came before the court of protection 104 the question was whether a local authority could keep a man in a residential support unit contrary to his wishes and those of his father. peter jackson j stated ―if a local authority seeks to regulate control compel restrict confine or coerce‖ a liberal use of a thesaurus, ―it must, except in an emergency point to specific statutory authority for what it is doing or obtain the approval of the court.‖ 105 he continued ―the origin of this basic principle is to be found in an era long before the invention of local authorities as we know them‖ and quoted predictably chapter 29 of magna carta 1297 106 adding ―the court of appeal has recently said this right to freedom is a fundamental constitutional right (a reference to a dictum of toulson lj). 107 it will certainly not lose its importance in the field of adult social care with an ageing population increasing the responsibilities of families and state‖ and many cases in this discrete area illustrate the truth of his proposition. in another the issue was whether a tribunal rather than the secretary of state was empowered to order the discharge of a patient from a mental hospital into a care home but from which he could only move among the community under escort, so indisputably restricting his liberty. 108 arden lj echoed the sentiments: 104 hillingdon lbc v neary [2011] ewhc 1377 (cop), [2011] 4 all er 584. 105 ibid [22]. 106 ibid [23]. 107 in r (ttm) v hackney lbc [2011] ewca civ 4, [2011] 1 wlr 2873 [33] (toulson lj). 108 secretary of state for justice v rb [2011] ewca civ 1608, [2012] 1 wlr 2043. magna carta in the twentieth and twenty first centuries 24 she said ―the right to liberty of person is a fundamental right. it has been so regarded since at least the time of the well-known provisions of clause 39 of magna carta, which in due course found its reflection in article 9 of the universal declaration of human rights and article 5 of the european convention…‖ 109 so important was this right that it was nothing to the point, held the court of appeal, that the discharge even on those restricting terms was in the best interests of the patient. 110 a different issue arose in another case where a mental patient refused a social worker permission to consult his nearest relatives on whether he should be admitted for treatment. as a result the social worker determined, without consideration of all the circumstances, that it was ―not reasonably practicable to do so‖ which was the only qualification to the duty to consult imposed by the mental health act 1983. aikens lj, stressing the importance of compliance with the provisions of that act continued ―if they are not‖, as toulson lj said in r (ttm) v hackney lbc, since the statute of magna carta ch. 29 1297… ―a person can obtain redress where her right confirmed by that statute has been infringed even though there is no provision in the 1983 act; which enables her personally to do so.‖ in the case referred to by aikens lj (and indeed by peter jackson j) , toulson lj had instanced the writ of habeas corpus and the writ for trespass as reinforcing the substantive protection of ch 29 111 which itself is actually silent on remedy for breach. 112 in an earlier case lord donaldson mr had cited magna carta as confirming that habeas corpus lay against the crown itself 113 but, more precisely and accurately, habeas corpus was described in the house of lords as ―rendered more actively 109 ibid [8]. 110 the same substantive issue was revisited by the supreme court, where the issue was not whether and, if so, when it was lawful to deprive someone of his or her liberty but rather what was meant by deprivation of liberty, however, the various judgments made no reference to magna carta focussing on its philosophical descendant article 5(4) of the european convention on human rights. cheshire west and chester council v p [2014] uksc 19, [2014] ac 896 111 r (ttm) (n 107) [33]. 112 further mental health detention cases include secretary of state for justice v rb [2011] ewca civ 1608, [2012] 1 wlr 2043, r (on the application of epsom & st helier nhs trust) v mental health review tribunal [2001] ewhc admin 101, st george’s healthcare nhs trust v s [1999] fam 26 (ca), and re s-c (mental patient: habeas corpus) [1996] qb 599 (ca). 113 r v secretary of state for the home department ex p muboyayib [1992] qb 244 (ca) 254 g-h. the denning law journal 25 remedial by the statute of charles ii but founded upon the broad basis of magna carta ...the principal bulwark of english liberty.‖ 114 immigration detention another area of contemporary political and social importance and indeed controversy is immigration. in r (on the application of lumba) v secretary of state for the home department 115 the secretary of state, john reid mp, had an unpublished policy that for all prisoners who were subject to immigration control and liable to deportation on completion of their sentence of imprisonment should be detained pending deportation. this was inconsistent with his published policy which allowed for discretion and hence violated a well established principle of public law lord collins of mapesbury said ―this is a case in which on any view there has been a breach of duty by the executive in the exercise of its power of detention. fundamental rights are in play‖. he then quoted ch. 39 of magna carta 1215 (9 hen 3) adding that the liberty of the subject as a fundamental constitutional principle hardly needs the great authority of sir thomas bingham mr but it is worth recalling what he said in his book the rule of law 2010 at p.10 about the fundamental provisions of magna carta ―these are words which should be inscribed on the stationary of the home office‖, 116 the department which mr reid himself famously described on his accession to his high office as unfit for purpose. 117 at the other end of the chronological spectrum in immigration matters which stretches from entry to expulsion, in a case involving a juvenile asylum seeker 118 the issue was the lawfulness of the decision by the secretary of state to detain pending removal the claimant, a juvenile citizen of afghanistan. lady justice arden opined: 114 secretary of state for home affairs v 0’brien [1923] ac 603 (hl) 646. to the same effect ex p mwenya [1960] 1 qb 241 (ca) 292 (evershed mr) and greene v secretary of state for home department [1942] ac 284 (hl) 302 (lord wright). 115 [2011] uksc 12 , [2012] 1 ac 245. i represented the home department. 116 ibid [217]. 117 see further r (on the application of detention action) v secretary of state for the home department [2014] ewca civ 1634. 118 r (on the application of aa (afghanistan)) v secretary of state for the home department [2012] ewca civ 1383. magna carta in the twentieth and twenty first centuries 26 ―…the burden of showing that the detention was lawful falls on the secretary of state‖ and referred in swift succession to magna carta, article 5 of the european convention on human rights, united nations convention on the rights of the child (―uncrc‖) and other international instruments. ultimately no instruments, ancient or modern, saved the claimant from removal. extradition in the field of extradition the same principle is engaged. in the case of juana chaois v spain 119 the high court of northern ireland was seized of an application by the respondent to revoke the appellant‘s bail, and commit him to custody. the issue to be determined was jurisdictional, namely whether the high court or any other agency was empowered to take the measures requested. mccloskey j noted that there was no express power to that effect in the extradition act 2003. he continued; [27] the suggestion of an implied statutory power of the kind mooted is contradicted by two further considerations. the first is article 5/1 echr… in short, a power of this kind would lack the essential qualities of accessibility and foreseeability. the second contra indication is the nature of the power. such a power would entail deprivation of the citizen‘s liberty. the common law has long recognised liberty as a hallowed right and it possesses a similar ranking in convention jurisprudence. there is no justification in logic or in principle for adopting a less robust approach where the detaining agency is the court, rather than the executive. contempt of court the necessity of finding an express provision justifying detention to override the magna carta presumption in favour of liberty is shown in a pair of cases in the sphere of contempt of court, where incarceration is one of the options available to a court. it has been held that there is no power to remand in custody someone pending a decision as to what is the 119 [2010] niqb 68 (qb northern ireland). the denning law journal 27 appropriate sanction in his case for such contempt. 120 nor someone arrested under a search and find order in connection with alleged child abduction unless and until the contempt by way of breach an earlier court order to return the child was proved. 121 protection of property chapter 39 protects not only the person, but property against arbitrary seizure. 122 many of the most famous constitutional cases arise from the executive appetite in wartime to lay its hands on whatever suits its purpose provoking inevitably pleas to that article. 123 in the case of de keysers royal hotel 124 it was stated ―since magna carta the estate of a subject in lands or buildings has been protected against the prerogative of the crown‖, lord parmoor suggesting that not only out and out seizure, but also interference with use and occupation fell within the remit of clause 39 125 although in another case 126 where a company complained about a refusal of permission to build factories and shops on its land viscount simonds said dismissively but realistically ―such a diminution of rights can be affected without a cry being raised that magna carta is being dethroned or a sacred principle of liberty infringed.‖ 127 arbitrary of course means without colour of law. the problem is the wealth of law governing everything from compulsory purchase to enforcement of 120 delaney v delaney [1996] qb 387 (ca). 121 re b (minors) (wardship: power to detain) [1994] 2 flr 479 (ca). 122 said to extend to freedom of trade in esso petroleum v harper’s garage [1968] ac 269 (hl) 317 e-d (lord hodson). 123 for example central control board (liquor traffic) v cannon brewery co ltd [1919] ac 744 (hl) 760 (lord parmoor) where magna carta was held to disentitled the central control liquor board to use the prerogative to confiscate private property per nissan v a-g [1970] ac 179 (hl) (expropriation of luxury hotel in cyprus for use of british peace keeping forces where counsel for the plaintiff praying magna carta in aid was quintin hogg qc, later twice lord chancellor. burmah oil v lord advocate [1965] ac 75 (hl) where the house of lords ordered compensation to be paid to the company whose property had been destroyed to keep it out of the hands of japanese invaders, only – notoriouslyto have the effect of their order set aside by the war damage act 1965. 124 [1920] ac 508 (hl). 125 ibid 508. 126 belfast corporation v od cars [1960] ac 490 (hl). 127 ibid 519. magna carta in the twentieth and twenty first centuries 28 judgments to revenue raising measures, all overriding property rights. do not rely on magna carta against a mansion tax or similar future scheme. exile extradition in an age a mutual assistance between states designed to combat crime is commonplace. exile to which i now turn is exceptional. the most significant case r v secretary of state for the foreign and commonwealth office ex p bancoult 128 illuminates both the strength and the weakness of magna carta. it concerned what lord hoffman described as the ―sad story‖ 129 of the chagos islanders, inhabitants of an archipelago in the british indian overseas territories. diego garcia, the largest island, because of its position, had significant strategic potential and the usa desired it as a military base. between 1968 and 1971 the majority of the islanders were relocated in mauritius, not by force, but as a result of the closure of the plantation company which was their sole source of supply of necessaries from the outside world. the interests of the islanders were disparagingly referred to in an inter-office memorandum as ―a few tarzans or men fridays‖ 130 in an era where racial equality, let alone political correctness was unheard of, but whose disclosure by the respondent department was itself a testimony to the transparency both required of and respected by public authorities. 131 in 1971 an immigration ordinance stipulated that no-one could enter the territory without a permit, and in 2004 belt was added to braces by a further ordinance expelling the few who remained in situ. 132 it was common ground in the challenge to the later ordinance that it raised issues under article 39. neither king john nor the barons at runnymede knew even of the existence of diego garcia. it was nonetheless in law british territory from which prima facie citizens could 128 [2008] ukhl 61, [2009] 1 ac 453. 129 ibid [9]. 130 quoted in a first instance decision in the same series of cases, r (on the application of bancoult) v secretary of state for the foreign and commonwealth office [2001] qb 1067 (dc) 1083 e (laws lj). 131 see the approving comments of laws lj and gibbs j at ibid [63] (laws lj), [72] gibbs j. 132 this unhappy episode in a last chapter of britain‘s imperial history was further discoloured by allegations that diego garcia was used by the usa for extraordinary rendition and the torture of terrorist suspects. the denning law journal 29 not be expelled. 133 but the right was not an unqualified right; it was expressly made ―subject to the law of the land.‖ the key question which divided the majority and minority was whether the prerogative power, as distinct from legislation, was sufficient to annul the right. for the minority lord mance said ―a constitution which exiles territories‘ inhabitants is a contradiction in terms.‖ 134 for the majority lord hoffman said ―in a ceded colony…the crown has plenary legislative authority. it can make or control the law of the land. the right of abode is a creature of the law. the law gives it and the law may take it away.‖ 135 the islanders had to take their claims for a return to their homeland to the european court of human rights where they failed because they had already accepted compensation for resettlement elsewhere. 136 proportionate punishment the principles of magna carta have infiltrated the last phase of the criminal process: the imposition of sanction. in one of the many cases in which the privy council had, with undisguised reluctance, to deal with death penalty cases from caribbean jurisdictions, it had to determine whether a provision of bahamian law prescribing the death penalty should be construed as mandatory or discretionary; it opted for the more lenient construction. as, lord bingham said; ―the principle that criminal penalties should be proportionate to the gravity of the offence committed can be traced back to the magna carta; chapter 14 of which prohibited excessive amercements‖ and, in the words of one commentator, ―clearly stipulated as fundamental law a prohibition of excessive punishment.‖ 137 133 ex p bancoult (n 129) [42] (lord hoffman), [85] (lord rodger), [124] (lord carswell), [151] lord mance. 134 ibid [157]. 135 ibid [45] see to like effect as to approach, if not conclusion: r (on the application of bancoult) (n 131) [34] (laws lj). 136 the guardian (london, 20 december 2012). 137 bowe v the queen [2006] ukpc 10, [2006] 1 wlr 1623 [30] (lord bingham). see too r v morris (charles) 1951 1 kb 394 (ca). nonetheless the fact that the sentence for common law conspiracy to defraud was at the discretion of the court did not infringe the prohibition verrier v dpp [1967] 2 ac 195 (hl) 208g. magna carta in the twentieth and twenty first centuries 30 double jeopardy but sometimes weight is imposed on magna carta which it does not easily bear. in another case in the same sequence the privy council had to decide whether a provision entitling the prosecution to appeal when a trial judge had erroneously dismissed its case was constitutional. the judge had, wrongly in the view of the privy council, excluded evidence adduced to show that the death of the victim of an assault was the consequence of the assault itself and not of treatment subsequently administered in hospital on the basis that the expert called was not qualified to tender such an opinion. counsel for the respondent accused argued: ―before independence and the republican constitutions of trinidad and tobago came into force double jeopardy was a recognised principle of considerable antiquity; magna carta 1354 confirmation chapter 39.‖ 138 whether this was so or not, and it seems an optimistic reading of the text, the privy council found nothing constitutionally objectionable in such prosecutorial appeal. open justice another illustration of the same ambition extravagantly to magnify magna carta‘s effect can be detected in the case of commissioner of the police for the metropolis v times newspapers ltd. 139 there the newspaper sought to make use of leaked police documents to defend a libel action brought by a person whose criminal network was said by the sunday times to be so vast that scotland yard regarded him as too big to take on. the question was whether it could do so. tugendhat j said ―the principle of freedom of expression in all proceedings in court is so highly regarded by the law that it is given effect to by defences of absolute (sometimes qualified) privilege and witness immunity. these principles can be traced back to the origins of the right to a fair trial which had already been recognised before it was included in magna carta in 1215.‖ 140 the conclusion seems farfetched. but then the same judge had form in this area. in lns v persons unknown, the claimant, the initially disguised, the former english football captain and chelsea centre half john terry 141 – no role model he – sought 138 trinidad and tobago v boyce [2006] ukpc 1, [2006] 2 ac 76. 139 [2011] ewhc 2705 (qb), [2014] emlr 1. 140 ibid [72]. 141 [2010] ewhc 119 (qb), [2010] emlr 16, 400. the denning law journal 31 an injunction to prevent revelation of the fact that he was sleeping with another team member‘s wife. in rejecting the claim which he held to be more concerned with protecting the commercial value of the player‘s commercial reputation rather than his or his paramour‘s privacy, the judge said ―open justice is one of the oldest principles of english law, going back to before magna carta‖ 142 but not, as far as i can discern, actually included in it. burden of proof other principles have been read into magna carta by advocates seeking to clothe their submissions with spurious pedigree. one case involved an asylum seeker requiring accommodation 143 to which he would be entitled if he was a minor, but not if he was not. was it for the claimant to show that he was a minor or the local authority to prove that he was not? the ordinary rule is of course that he who asserts something essential to a claim, or for that matter defence, bears the burden of proving it; but there are some exceptions. counsel for the applicant submitted that ―the origin of exception ―to the presumption of regularity‖ may have lain, at least instinctively in chapter 39 of |magna carta 1215(9 hen 3)… as set out in sir thomas bingham‘s the rule of law‖. even the qualification, at least instinctively, does not save the observation from the charge of overheated imagination, and lord bingham‘s name as a potential supporter of this thesis was surely taken in vain. nor did magna carta provide special rules to protect an owner of property threatened with compulsory purchase. a decision to exercise such power could only be challenged on conventional wednesbury grounds of unreasonableness. 144 natural justice the same tendency to wishful resort to the charter was displayed in an extradition case. 145 lord donaldson mr stated that it was elementary that a person threatened with extradition was entitled to know the case 142 ibid 106. 143 r (on the application of cj v cardiff cc [2011] ewca civ 1590, [2012] 2 all er 836. 144 r v secretary of state for transport ex p rothschild [1989] 1 all er 933 (ca), 935c (slade lj), singh v department of the environment [1989] 24 eg 128. 145 re nagdhi [1990] 1 wlr 317 (dc). magna carta in the twentieth and twenty first centuries 32 against him ―without‖ as he said somewhat archly ―having to refer to magna carta.‖ 146 clearly in his view a reference by counsel too far. 147 torture i must therefore emphasise that magna carta is simply not the source of all that is good in english law, the seed of every plant in the field of justice. in the case which authoritatively laid down that evidence obtained by torture was inadmissible in our courts 148 lord bingham in confirming the common laws long standing aversion to torture noted the fact ―that reliance was placed on sources of doubtful validity such as chapter 39 of magna carta 1215… does not weaken the strength of received opinion.‖ 149 but not all judges are so willing to deny the link. in another case involving binyan mohammed, an application to redact passages in a judgment on the ground that their inclusion would damage the relationship of the united states of america and the united kingdom. 150 lord judge referred to chapter 29 of magna carta before concluding ―all the said ancient authors are against any pain, or torment to be put or inflicted upon prisoners before attainder, nor after attainder but according to judgement.‖ 151 in a later case j v the metropolitan commissioner of police 152 the actual issue was again a narrow procedural one; what was the correct forum for claims in tort and for breach of convention rights brought by environmental protesters who had been persuaded into sexual relationships with an undercover police officer masquerading as a green sympathiser. in the course of his judgment tugendhat j, something, as you will by now have appreciated, of a magna carta groupie, said ―the right not to be subject to degrading treatment has been recognised by the 146 ibid 322. 147 ibid 396 g-h. 148 a v secretary of state for the home department [2005] ukhl 71, [2006] 2 ac 221. 149 ibid [11]. 150 r (on the application of mohamed) v secretary of state for foreign and commonwealth affairs [2010] ewca civ 158, [2011] qb 218, 151 ibid [16]. 152 j v the commissioner of police of the metropolis [2013] ewhc 32 (qb), [2013] 1 wlr 2734. the denning law journal 33 common law from the earliest time‖. according to blackstone amongst the natural rights recognised by the common law were, in the words of magna carta, ―a prohibition not only of killing and maiming but also of torturing to which our laws are strangers.‖ 153 forensic failure sometimes magna carta is deployed as ballast. in the leading case on control orders 154 counsel submitted that ―the right to liberty and freedom from arbitrary detention lies at the heart of the domestic legal system as the pre-eminent freedom guaranteed by the common law since magna carta‖: a legitimate submission. the same use was made in the famous case of liversidge v anderson concerned with wartime internment under the notorious 18b 155 which provoked the most celebrated dissent in english legal history by lord atkin: ―i view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive.‖ 156 however magna carta can sometimes indeed be not merely an unnecessary and gratuitous add on to an otherwise reputable argument but, as i have already illustrated, the last resort of the forensic failure. in attorney-general’s reference no.1 of 1990 it was argued that that a mere two years deferment in prosecuting a police officer for assault, which had resulted from the explicable need to await the outcome of the trial of the two alleged victims whom he had arrested violated article 39 so that the prosecution should be stayed. lord lane lcj gave short shrift to this ambitious contention. ―delay‖ he ruled ―means at its lowest wrongful delay such as is not justified by the circumstances of the case.‖ 157 it is a curious feature of that case that the unsuccessful counsel, anthony arlidge qc was co-author with lord judge of ―magna carta 153 ibid [67]. 154 secretary of state for the home department v jj [2007] ukhl 45, [2008] 1 ac 385. 155 1942 ac 206 (hl). ‗the appellants counsel truly say that the liberty of the subject is involved. they refer in emphatic terms of magna carta...‘ 156 ibid 244. 157 a-g’s reference (no 1 of 1990) [1992] qb 630 (ca) 640g-h. magna carta in the twentieth and twenty first centuries 34 uncovered‖ and the junior member of the court which rejected his argument was judge j himself. 158 but mr arlidge‘s efforts were surely trumped by those of mr randlejoliffe, who sought to quash orders for possession in favour of the city of london made against the protesters of the occupy movement: ideological opponents of capitalism of the philosophical school of russell brand, who had pitched their tent in the environs of st pauls cathedral. 159 lord neuberger mr referred politely to his ―esoteric arguments‖ which he then enumerated: ―first he challenged the judgement on the ground that it did not apply to him as a magna carta heir. but that is a concept unknown to the law. he also says that his magna carta rights would be breached by execution of the orders but only chapters 1, 9 and 29 of magna carta 1297 version survive. chapter 29 with its requirement that the state proceeds according to law and its prohibition on the selling or delaying of justice is seen by many as the historical foundation of the rule of law in england but has no bearing on the arguments in this case.‖ somewhat ironically, lord neuberger added, ―the two other clauses concern the rights of the church and of the city of london and cannot help the defendants.‖ one might add au contraire… the latitude characteristically in our courts extended to litigants in person was stretched to breaking point in the first instance decision in the same case 160 where the same randle joliffe referred to ―the fairness founded in magna carta‖ and his fellow dissenter mr ashman invoked magna carta as allowing persons in ―situations of…overwhelming urgency…to respond by breaking the law‖, a charter on this exotic analysis not then for rule law but for lawlessness. still less persuasive, were that possible, was the argument of a private investigator who, in blatant and deliberate breach of a reporting restriction order, continued to assert that a husband involved in acrimonious divorce proceedings whom she was tracking was a rapist and paedophile and then sought to resist committal for contempt relying on ―her inalienable right under common law and the inviolable right to exercise lawful rebellion 158 in tan soon gin (george) v cameroon [1992] 2 ac 205 (pc) 222 a similar submission was avoided: ‗no such argument has been advanced in the present case and we need say no more about it.‘ 159 city of london corp v samede [2012] ewca civ 160, [2012] 2 all er 1039 160 [2012] ewhc 34 (qb). the denning law journal 35 under chapter 61 of magna carta‖. the president of the family division commented intelligibly on these submissions: ―once again i do not understand these in the context of committal summons.‖ 161 nor indeed do i. the clause chapter 61 is, described in arlidge and judge as ―the security clause‖ enabling the provisions of the charter 162 to be ―guaranteed by the barons choosing 25 of their number with powers of distrait and distress against the crown, if the king does not observe its terms.‖ 163 while the authors imaginatively describe the clause as establishing ―representative action and majority voting‖, 164 the private investigator‘s attempt to deploy it as a justification for her violation of a court order trespasses beyond the boundaries of imagination and into the realm of illusion, not least of course because it had been long repealed. litigants in person are clearly particularly prone to rely on magna carta, or their misunderstanding of it, where all else fails. mr rockliff brought proceedings before a tax tribunal 165 complaining that the taxation of his police pension as his sole income and not the joint income of himself and his wife discriminated against him as a married man, indeed against the institution of marriage itself. the chairman recorded 166 at 22: the taxpayer also submitted at all three hearings a great deal of nonstatutory material, in support of his argument ranging from magna carta to statements by ministers in parliament and contemporary articles speeches and radio interviews. it is interesting and informative, and doubtless material to the policy decisions of the legislature, but it does not constitute legal authority which the tribunal is entitled to take into account or is bound by, and i will not refer to it further. i repeatedly explained this to the taxpayer, who replied that he wished this material to be ―on the record‖; it is accordingly retained in the tribunal‘s files. where, no doubt, if you are interested, it can still be located. nor did mr davidson fare any better before the vat and duties tribunal suggesting that the revenue and customs commissioners had no 161 doncaster mbc v watson [2011] 3 fcr 422 (f) [37]. 162 arlidge and judge (n 1) 77. 163 ibid 6-7. 164 ibid 78. 165 rockliff v revenue and customs commissioners [2009] ukftt 162 (tc). 166 ibid [22]. magna carta in the twentieth and twenty first centuries 36 right to seize and to refuse to return his illegally imported tobacco without trial and judgment of a court of law as the charter allegedly required. 167 magna carta has been wheeled out without success in cases for compensation for unfair dismissal 168 to invalidate the compulsory introduction of metric in place of imperial weights 169 to prevent on his own appeal one solicitor from being struck off the roll for fraud 170 or another solicitor from suffering the same fate on the application of a businessman who complained that the solicitor‘s clients, not the solicitor himself, had given false evidence against him: 171 an application which, had it won the day, would have added fresh terrors to the practice of law. magna carta proved no basis for a challenge to the congestion charge 172 or to regulations altering the criteria for blue badges for disability parking 173 or, on a matter of greater moment, the diminution of national sovereignty involved in the treaty of nice and the european communities amendment act. 174 the striking out of claims for negligence against two major pharmaceutical companies for damage allegedly caused by their antidepressant pills 175 on the basis that individual plaintiffs at the highest would recover little and the costs of defending the claims would be disproportionate, did not involve a denial of justice; nor did the nondisclosure to a plaintiff in a family dispute of medical evidence which was relied on to justify the official solicitor taking over his threadbare case. 176 the court of appeal declined to decide whether magna carta could be relied on as the source of an award of exemplary or punitive damages for wrongful arrest by police officers but displayed no enthusiasm for the 167 davidson v revenue and customs commissioners (vat and duties tribunal, 25 july 2008). 168 pearson v halesowen college [2004] all er (d) 389 (mar) (eat). 169 thorburn v sunderland city council [2002] ewhc 195 admin, [2003] qb 151. 170 re solicitor no 11 of 2001 [2001] ewca civ 1538. 171 tassell v president of the law society [2001] ewhc admin 611. 172 r (on the application of george) v the mayor of london [2003] ewhc 1257 (admin). 173 seaton v secretary of state for transport [2015] ewhc 146 (admin). 174 mcwhirter v secretary of state for foreign and commonwealth affairs [2003] ewca civ 384. 175 ab v john wyeth & brother ltd (no 5) [1997] piqr p385 (ca). 176 cobbett v cobbett (ca, 24 march 1993). the denning law journal 37 proposition; 177 nor did it save a drug trafficker in singapore from execution. 178 the house of lords dismissed claims made for compensation by someone mistakenly certified, in the language of the early twentieth century, as a lunatic. 179 he addressed the house himself. viscount haldane, while noting that the appellant was ―obviously of an excitable disposition‖ said that the question was whether the defendant had reasonably thought him to be of unsound mind. among the items of evidence considered adverse to the appellant was that a medical officer had thought him ―to have exaggerated ideas of his own importance‖, that he refused to ―eat animal food or drink milk‖ 180 that he ―would not do any work but lay in bed till the middle of the day‖ 181 ―worried his mother with questions for hours at a time‖ 182 and had ―pulled down curtains at his father‘s house.‖ 183 there but for the grace of god may some of us go… even witnesses can pray magna carta in aid though to no greater benefit. in r v usman ali 184 mr khan, victim of an unsuccessful murderous attack, provided the key testimony against those charged as his assailants. under strenuous cross-examination in which he displayed a penchant for not answering the question but for making statements, for which the judge properly chided him, he commented ―magna carta no man shall be denied justice‖, adding ominously ―if they (presumably the accused) come back on the street you are going to have the biggest war on your hands.‖ magna carta’s influence so to the question posed by adam tomkins in an article in public law ―would a court go so far as to invalidate an executive decision solely on the basis that it violated clause 29 of magna carta or is magna carta now something which is, as a matter of law, capable of carrying only 177 holden v chief constable of lancashire [1987] qb 380 (ca) 387h-385a. see counsels argument at 382c-d. 178 counsels submission in ong ah chua v public prosecutor [1981] ac 648 (pc) 653c. 179 everett v griffiths (no 1) [1921] 1 ac 631 (hl). 180 ibid 645. 181 ibid 647. 182 ibid. 183 ibid 648. 184 [2006] ewca crim 161, [2006] crim lr 776. magna carta in the twentieth and twenty first centuries 38 symbolic or rhetorical weight?‖ 185 i would be compelled to answer it is the latter rather than the former. my tour d‘horizon of the last 115 years, my chosen time frame shows, i must conclude, that, magna carta has never been necessary to a judicial decision and that whether it has been sufficient is an all but meaningless question. lord bingham in his magisterial statement in the belmarsh case about the ancestry of the right to liberty in english law started but did not end with magna carta. it is hard to imagine that, even without magna carta, the same right would not have taken root in later centuries. indeed the overwhelming majority of the cases exemplify what magna carta cannot do rather than what it can, and many constitutional principles of the first water, such as the fact that only primary legislation entitles the state raises taxes, have been decided without reference to it even when it was argued. 186 there are obvious reasons for this decline in influence. first magna carta has been progressively repealed with, as i said at the outset, only 4 out of 63 clauses still extant. secondly even those clauses which have survived cannot stand against later inconsistent legislation; this lecture is littered with examples of which the chagos case is only the most prominent. as darling j said ―magna carta has not remained untouched, and like every other law of england is not condemned to that immunity from development and improvement which was attributed to the laws of the medes and the persians.‖ 187 or as lord atkinson said, concurring in a judgment, that the internment of a naturalized british subject of german birth was validated by dora in world war 1, dora ―was itself part of the law of the land; if it were otherwise then every statute and every intra vires rule or by law having the force of law creating a new offence for which imprisonment could be inflicted would amount, pro tanto to a repeal of magna carta.‖ 188 thirdly the value of is key provisions, clauses 39 and 40, have been enhanced and updated in later and more focussed legislation. 189 185 ‗magna carta, crown and colonies‘ [2001] pl 571. 186 see bowles v bank of england [1913] 1 ch 57 (ch) 61-2. 187 chester v bateson [1920] 1 kb 829 (kb) 832 (a case where under dora not only was property requisitioned but the owner prevented from challenging its requisition in the courts: see further ibid 839 (avory j). 188 r v halliday [1917] ac. 260 (hl) 272. the exercise of the prerogative to deport an enemy alien was held consistent with magna carta in netz v ede [1946] ch 224 (ch) 234 (wynn parry j). 189 see for example re c’s application for judicial review [2012] niqb 62 (qb northern ireland) ‗it has been said from the time of magna carta that justice the denning law journal 39 fourthly, a point i could not have made on the seven hundredth or even the 750 th anniversary, we look today to analogous articles of the european convention on human rights, not least article 5(4) of the echr: the prohibition on arbitrary detention and article 6: the right to a fair trial, which have made reliance on magna carta redundant. 190 in oxfordshire cc v dp, 191 a case about how far the court could go at an interim stage in proceedings in making findings of fact as to the father‘s responsibility for injury to his child. macfarlane j said: magna carta is not habitually quoted in support of legal argument in the family division, it is however of interest to be reminded of the terms of its chapter 29 and to measure them up against the more modern and well known provisions of echr, art 8. there is in my view very little difference between the requirements laid down in these two instruments, despite the passage of over 700 years between the two. that this is so is really of no surprise. both are fundamental statements of core human rights. for the purposes of the ―lawfulness‖ argument raised in this case, i fully accept that any process upon which this court embarks to find facts in these proceedings must be ―by lawful judgment‖ and ―by the law of the land‖ (per 1215) or ―in accordance with the law‖ (per 1950). 192 contemporary issues current debate about the future of our legal system in the age of austerity focusses on the restrictions on judicial review, the reduction in legal aid and the increase in court fees. the first two could be classified as instances of the denial of justice; the latter as its sale. yet though all three have been the subject of actual or proposed legal challenges, magna carta was not placed in the forefront of the argument. the first, restriction of judicial review, was considered in a claim brought by several well-known campaigning law firms to regulations for the introduction of a ―no permission, no fee‖ arrangement for making a delayed is justice denied. this has perhaps received new vigour from cases under article 6.‘ 190 although magna carta‘s role as the inspiration of such instruments is itself important. 191 [2005] ewhc 1593 (fam), [2005] 2 flr 1031. 192 ibid [11]. magna carta in the twentieth and twenty first centuries 40 legally aided application for judicial review. 193 the issue was whether section 1 of the legal aid, sentencing and punishment of offenders act 2012, an awkwardly double jointed statute, more familiar known, in the modern taste for acronyms as laspo could be read as, contemplating that where substantial legal services under the scheme established by it are properly provided they will nonetheless have to be provided without payment. the claimants complained of its chilling effect on access to the high court inasmuch as lawyers might be deterred from taking on clients with meritorious but not straightforward claims because of the threat of no remuneration. the lord chancellor retorted that the providers of legal services should bear the risk of determining whether cases to be advanced by those clients qualified for legal aid on a proper interpretation of the relevant criteria. the divisional court upheld the challenge insofar as the scope of the impugned regulation ―extends beyond the circumstances which can be seen as rationally connected to the purpose given for its introduction.‖ 194 so the outcome turned on construction of a twenty first not of a thirteen century statute the second, the restriction of legal aid has prompted the judiciary on several occasions to suggest 195 that it is a false economy leading to additional expense for the courts. in a recent divorce case an unrepresented husband sought an order for disclosure of documents against the police, a non-party, a procedural issue described by lord justice aikens as ―technical and unusual‖. in the course of his ruling he added: yet again the courts have been without any legal assistance and had had to spend time researching the law for itself, then attempting to apply it to the relevant facts in order to arrive at the correct legal answer. to do the latter exercise meant that the court itself had to trawl through a large amount of documents in the file. all that involved an expensive use of judicial time which was in short supply already. money might have been saved from the legal aid funds but an equal amount of expense, if not more, had been incurred in terms of the costs of judges and courts time. the result was that there had been in fact no economy at all. worse, that way 193 r (on the application of ben hoare bell solicitors and others) v lord chancellor [2015] ewhc 523 (admin), [2015] all er (d) 19 (mar). 194 ibid [72]. 195 see cases cited in michael j b beloff qc, ‗virtuous values the advocates contribution to the rule of law (mcdermott lecture queens university belfast 2014). the denning law journal 41 of dealing with the cases ran the risk that a correct result would not be reached because the court had not the legal assistance of counsel that it should have had and the court had no other legal assistance available to it. 196 but he entirely, maybe prudently, refrained from seeking to engage magna carta in a judgment whose intended audience was clearly the ministry of justice. the third, higher court fees, had a more promising prologue. at the three day legal summit in london celebrating the sealing of magna carta, with an acute eye for public relations, legal bodies including the law society and the bar council issued a pre action protocol letter putting the lord chancellor on notice of yet another judicial review. in that letter, a required first step for the issue of legal proceedings, the law society said that the proposals were tantamount to ―selling justice‖ and so contrary to the principles of magna carta. the president of that body expatiated on that proposition in a public statement saying ―the policy on enhanced court fees amount to a flat tax on those seeking justice‖ they ―will price the public out of the courts and keep small business saddled with debts they are due but unable to recover. state provision for people to redress wrongs through the courts is the hallmark of a civilized society‖. to which the ministry of justice responded by saying that it is not litigants but that a segment of our community so much beloved of politicians 197 ―the hard working taxpayers‖ who had up to now had to pick up some of the bill. this clash of ideologies will not, however fall to be resolved in the courts after all. judicial review is of course a discretionary remedy. but in this instance discretion proved the better part of valour. despite the indicative precedent of r v lord chancellor ex p witham 198 where an order repealing provisions which gave poor litigants exemption from a reduction in court fees was held unconstitutional as a denial of access to the court, and apparently on the advice of leading counsel, the law society announced on 8 th april 2015 ―that it did not intend to pursue the litigation route.‖ 199 this did not, however mean their spokesman said, ―that we are giving up. far from it, our relentless lobbying has led the labour and the liberal democrats stating that they will review the court 196 lindner v rawlins [2015] ewca civ 61, the times, 7 april 2015. 197 frances gibb, the times (march 2015). 198 [1998] qb 575 (qb). 199 law society gazette (8 april 2015). magna carta in the twentieth and twenty first centuries 42 fee increase if they are part of a new government.‖ ―if‖ may be the operative word. 200 so i would not seek to dispute the proposition that magna cartas significance is as mythic document rather than as a legal text. nonetheless the text is not trivial. a submission made by david, (now) lord pannick qc, in the chagos islands litigation that it was ―not an act of parliament 201 but some unspecified category of subordinate law‖, 202 was withdrawn by him after, if not merely as a result of, an expression of judicial dismay by laws lj. indeed rather than being classified as less than law, there is high authority that it is a category of superior law. in litigation in the supreme court over the paving legislation for hs2 203 lord neugberger and mance jointly stated ―the united kingdom has no written constitution but we have a number of constitutional instruments. they include magna carta.‖ 204 theirs is merely one of many statements to the same effect, some of which i have already quoted. 205 i stress, however, that one should not be beguiled by such encomia into classifying magna carta as a constitution in the sense that we usually ascribe to that concept: that is to say, a superior legal norm against which even legislation, enacted by a democratic legislature, fails to be tested and, if found wanting, to be invalidated, of which the constitution of the usa is the best known, but by no means the only example. it does not even enjoy the level of potency of the human rights act which entitles the judges, where legislation offends against its provisions, to make a declaration of incompatibility, 206 requiring in fact if not in form the enactment of amending legislation to ensure such compliance. at its highest it supplies presumptions that liberty or property is not to be 200 and so indeed it proved to be. both parties have been since the general election in opposition. 201 r (on the application of bancoult) (n 131) 1073 f-g. 202 ibid [32] (laws lj) for the interpretation of his submissions. see too a-g’s ref (no 1 of 1990) (n 158) where lord lane himself described it as a statute. 203 r (on the application of buckinghamshire cc) v secretary of state for transport [2014] uksc 3, [2014] 1 wlr 324, 207. 204 ibid [207]. 205 see too in re s-c (n 113) 534 (bingham mr): ‗as we are all well aware, no adult citizen of the united kingdom is liable to be confined in any institution against his will, save by the authority of law. this is a. fundamental constitutional principle, traceable back to chapter 29 of magna carta 1297…‘ 206 human rights act 1998, s 4. the denning law journal 43 interfered with other than by clear colour of law 207 and is immune itself to implied repeal by later legislation. 208 magna carta myth? so myth it chiefly is, but i stress too that myth can sometimes be as potent as reality in shaping history. lord sumption puts the proposition pithily ―some legislation has a symbolic significance quite distinct from any principles it actually articulates.‖ it is often the interpretation given to words rather than their literal meaning which can be decisive in shaping human action; in our times the diverse treatment of the koran perfectly illustrates the point. as laws lj said in the chagos islander‘s case ―magna carta is in truth the first genuine declaration in the long history of our constitutional jurisprudence of the principle of the rule of law that describes the enduring significance of magna carta today.‖ 209 if it has survived cromwell‘s vulgar pun – he called it magna farta – it can surely survive dr starkey‘s observation that it contained ―a lot of guff.‖ 210 magna carta was as important for what it was as for what it said. the barons may not have been fully fledged democrats, but they did corral the king. we should not mourn that it has survived only in an abbreviated form and with diminishing impact on the development of our jurisprudence. we should marvel that, eight centuries on, it has survived at all. let me leave the penultimate word with lord judge and mr arlidge: the perception of what the charter stood for became as important as the actual language of the original clauses. in this country we now take for granted that laws should not be handed down by government diktat and that the community should be involved in its creation; that those in authority are subject to the rule of law 207 see jaroo v a-g of trinidad and tobago [2002] ukpc 5, [2002] 1 a.c. 871 [24] on its inspiration for the phrase ‗due process of law‘. 208 thorburn (n 170) [62] (laws lj). 209 r (on the application of bancoult) (n 131) [36]. 210 made at white and cases celebration at the british library to make the angloamerican firms sponsorship of the us loans of its declaration of independence and bill of rights. see edward fennell, ‗law diary‘ the times (2015) < http://www.thetimes.co.uk/tto/law/article4365364.ece> accessed 21 august 2015. magna carta in the twentieth and twenty first centuries 44 and that the rights of the citizen should be protected by the efficient administration of justice. 211 or as i would put it in a single sentence: it is because of magna carta that we can truthfully say that in our society the immortal principle is that ―no one – the king or lawmaker is above the law‖, 212 that we are governed by laws and not by men. 211 arlidge and judge (n 1) 2-3 212 halsbury‘s laws (5th edn, 2010) vol 88a, para 1 205 the denning law journal 2018 vol 30 pp 205-208 book review corruption and misuse of public office colin nicholls qc, tim daniel, alan bacarese, james maton and professor john hatchard, (3rd edn, oup 2017) lxxviii and 934. peter slinn* the well-documented rise in corruption at national and international levels has demanded increasing attention from governments, civil society and the legal profession across the globe. thus, this volume has doubled in size since the first edition in 2005. as lord phillips explains in his foreword, “this is not because corruption is necessarily on the increase, although the latest report from transparency international records a perception that this is indeed the case. it is because of an increase in the measures that are being taken both in this country and around the world to root out and stamp out corruption.” 1 the scope of the volume is impressively wide in both its jurisdictional coverage and in the variety and complexity of the topics addressed. thus, we find a detailed treatment of the relevant domestic law, both civil and criminal, of the united kingdom, of international and regional anti-corruption initiatives and of corruption laws of selected common law, civil law and other jurisdictions. the primary focus of the work is on developments in the united kingdom, which, to quote lord phillips again, “has established itself as second only to the united states in its efforts to combat domestic corruption and to encourage international cooperation in this field.”2 part i of the volume contains a detailed analysis of the bribery act 2010, which came into force in 2011. for the tortuous process leading to the reform of the uk’s bribery law, the authors refer the reader back to the earlier editions which should be retained for this purpose. one of the most problematic areas of the new legislation relates to the creation of a separate offence of bribery of a foreign public official. the act does not provide a defence in such circumstances of, for example, duress. uk travellers to africa are familiar with the police roadblock which can only be passed by payment of a small “facilitation” payment. such payment would constitute an offence under uk law, mitigated by the exercise of prosecutorial discretion in * vice-president, commonwealth legal education association. 1 colin nicholls qc, tim daniel, alan bacarese, james maton and professor john hatchard, corruption and misuse of public office (3rd edn, oup 2017) vii. 2 ibid. book review 206 according with guidelines which militate against prosecution in such circumstances. the authors stress that the act, which is quite short, can only be understood and applied in the context of the extensive guidance published by the ministry of justice and that produced by the director of the serious fraud office (sfo) and the director of public prosecutions (dpp). helpfully, these documents are reproduced as appendices to the volume. a novel feature of the law introduced subsequent to the bribery act is the “deferred prosecution agreement” (dpa) introduced by the crime and courts act 2013. dpas provide a mechanism whereby an organisation can avoid prosecution for certain economic or financial offences (including those involving corrupt practices) by entering into a court-supervised agreement on negotiated terms with the prosecutor. the authors emphasise the importance of judicial oversight of this novel process and they provide useful summaries of recent cases of which the most spectacular and controversial involved payments by rolls royce to the sfo of £500 million in respect of the company’s egregious criminality over decades, part ii deals with a vital element in combating corruption effective measures for the recovery of the proceeds of crime. the authors provide a chapter of international case studies relating to both criminal and civil proceedings in the uk and elsewhere. these provide a sorry record of the large-scale robbery of state assets by such notorious ruling families as those of general abacha in nigeria, of president chiluba of zambia and of president suharto of indonesia. part i of the volume contains a full treatment of the common law offence of misconduct in public office and the tort of misfeasance in a public office. public concern in the uk over evidence of misconduct by police officers led to the creation of a corruption offence specific to the police by the criminal justice and courts act 2015. whether this measure reflects a decline in standards of police conduct or rather the uncovering of malpractice which has always existed maybe a matter for debate. however, the authors feel justified in including a chapter on the regulation of conduct in public life generally, while admitting that “twenty years ago it would have appeared strange that a book on the law of corruption and misuse of public office should include a chapter on integrity in public life.” 3 however, since the 1990s, allegations of “sleaze,” particularly in respect of the conduct of members of parliament (expenses and cash for questions) have led to serious public concern about standards of public life in the uk. the authors trace the various measures that have been taken to regulate the conduct of parliamentarians, ministers, civil servants and judges. it is worth noting in a comparative commonwealth context that the enactment of the recall of members of parliament act in 2015 follows a precedent from 3 ibid 398. the denning law journal 207 other commonwealth jurisdictions such as kenya and uganda. the authors also address the issue of standard setting in the private sector. the purpose is to provide information as to existing standard setting in initiatives, both international and national, without attempting, as the authors admit, “to evaluate their effectiveness.”4 perhaps inevitably in a work of this kind, attempting to cover so much ground, information tends to take precedence over analysis. perhaps in a future edition the authors might manage to condense some of the detail and thereby provide room for a concluding chapter which might attempt the formidable task of evaluation of the effectiveness of the measures described. however, the authors’ response would no doubt be that in what is primarily a practitioners’ text, there is no room for “academic” analysis. this edition contains in part iii a new chapter on combating corruption in sport, which has been a source of frequent scandals in recent times. such corruption can take a number of different forms –corruption within international sporting bodies such as fifa and iaaf, match-fixing and illegal gambling, doping and other sporting corrupt practices. dealing with such issues has required the creation of a complex regulatory framework based on a variety of international initiatives. again, useful case-studies are provided. those who lament the scale of corruption in sport in recent years may take comfort from evidence that it has existed for at least 2,800 years. statues to the gods outside the ruins of the ancient olympic stadium in greece were paid for by athletes and coaches who were caught cheating.5 part iv is devoted to a detailed account of international and regional anti-corruption initiatives including the united nations convention against corruption and regional measures such as the african union convention on preventing and combating corruption. those who regard the commonwealth as playing a significant role in world affairs will be gratified by the inclusion of a section on commonwealth initiatives in combating corruption, in particular the provision of technical assistance to the small and developing states that make up the majority of the organisation’s membership. part v displays the broad scope of the work by describing the corruption laws of jurisdictions other than the uk, it is appropriate that most detailed treatment is accorded to us law, since the foreign corrupt practices act has just passed its fortieth anniversary and has proved to be “the most significant anti-corruption law that applies to international business.” 6 a representative selection of common law jurisdictions includes some of the most and some of the least corrupt countries in the 4 ibid 448. 5 ibid 502. 6 ibid 674. book review 208 world. the civil and other jurisdictions included have a comparable range – brazil, china, france, russia, south africa and the united arab emirates. in relation to each of the jurisdictions, the legal framework is described, with key cases on enforcement. the latter expose the extent of corruption, often involving serving or former heads of state, in, for example, nigeria and brazil. part v also contains an examination of offshore financial centres, so often the repository of the fruits of the corrupt practices described in this volume. the concluding part vi acknowledges the role of civil society organizations (csos), operating at international, regional and national levels, in making an invaluable contribution to supporting good governance and the fight against corruption. in emphasising the constructive role of csos in partnering governments and the private sector, in particular by providing information, research capacity and publicity to support anticorruption measures, the authors may help to defuse the suspicion of cso activity often manifest in governmental and business circles. apart from the appendices of uk instruments already referred to, the volume benefits from a comprehensive index which greatly enhances the utility of the work for the busy practitioner. no practitioner today can afford to be without a knowledge of the issues covered by this book in such an impressive fashion. this suggests that the law students of today need a good grounding in corruption issues as part of professional training. if the authors are looking for another project, they might consider producing a slimmed down (and cheaper!) volume which would provide a basis for teaching courses on corruption as part of the academic or practical stage of legal training. lord denning: an antipodean appreciation . the ron. justice m. d. kirby, em. g. '* end of an era lord denning was fond of saying that he had every christian virtue save resignation. in 1982 he was one of the few remaining judges in england not subject to compulsory retirement. to use his own words he was "one of the few judges who have freehold." however, in a statement made by his clerk in july 1982, he said that he had intended for some time to retire at the end of the legal year "because of his advanced age." i he was then, as they would have said at the time of his birth, in the 83rd year of his age. the initiating circumstances for his retirement was an unhappy controversy over his book what next in the law? the book, the third since his 80th birthday, included a few typically blunt observations concerning the jury service of citizens of west indian or other non-english ethnic origin. when these comments became public, calls for his resignation were made by the society of black lawyers in england and by others. even before the announcement of lord denning's retirement was made, mr rudy narayan, secretary of the society wrote to the times: "lord denning remains one of the greatest judicial minds of this century; he was my sponsor on call to the bar but that should not be taken too heavily to his discredit ... a great judge has erred greatly in the intellectual loneliness of advanced years; while his remarks should be rejected and rebutted he is yet, in a personal way, entitled to draw on that reservoir of community regard which he has in many quarters and to seek understanding, if not forgiveness." 2 lord denning was no stranger to controversy. yet the controversy which surrounded his book and his remarks was bitter and personal. almost certainly it hastened his decision to 'bring forward' the announcement of his retirement. 3 in correspondence, writing of the controversial book, he expressed the feeling that it ·president of the court of appeal, supreme court, sydney. formerly chairman, australian law reform commission and judge of the federal court of australia. \. peter post quoted law talk is3(nz law50ciety), 14 july 1982,7. 2. r. narayan, times quoted ibid. 3. p. post, ibid. 103 the denning law journal was "about the right time" for him to retire "whilst i am still in good form and able to do my work." 4 lord denning urged upon me the merit of much of what was in it when it was reissued soon afterwards. he said it was worth reading "because it deals a great deal with law reform."s so it does. so does much of his writing in and out of court. the retirement of such a towering figure of the common law certainly marked the end of a legal era. it removed from one of the highest judicial offices in the english speaking world, a judge who had been dedicated to law reform, and not content to leave. reform solely to parliament, whether or not helped by law reform agencies or other bodies. who is lord denning? why has he been such a controversial judicial figure? will his achievements last? what lessons does his career hold for the judiciary and the administration of justice in far-away countries of the common law, such as australia? lord denning the man alfred thompson denning was born in 1899, the son of a draper in the village of whitchurch, where he still lives. he was one of five brothers. one became a general, another rose to be an admiral. lord denning began life as a teacher but later returned to oxford and a pursuit of the law. two of his brothers were killed in the first world war. one, jack, the eldest son, died leading his men at flanders. the other, gordon, a sailor, was killed in the battle of jutland, aged 19. in his book the due process of law, lord denning finishes with a personal epilogue, written in a special style of english prose of which he is a modern master: "i remember the telegram coming. mother opened it with trembling fingers. 'deeply regret ... died of wounds'. she fainted to the floor. a few days later came a letter which was found in his valise after his death. mother and father poor dears they were to lose another son before that war was over ... reg is now a generalretired. norman is now an admiralretired. butjack and gordon they were the best of us ... the poppies slipped from my hand to the floor. eyes filled with tears. it was the eve of remembrance day.,,6 lord denning himself fought at picardy in the first world war. "only there for the last nine months. too young to go before. i came through unhurt." 7 he won scholarships and first class degrees in mathematics and jurisprudence. in 1923 he was called to the bar. he soon learned that the law and justice were not always the same thing. cases came to him for opinion. in accordance with the binding authority of the highest courts, they required conclusions that struck him 4. letter of lord denning to the author, 14 july 1982. 5. ibid. 6. lord denning, the due process of law (1980), at pp. 250-251. 7. ibid., at p. 249. 104 lord denning: an antipodean appreciation as unjust. "the house of lords had decided it. that was the end of the matter", he later wrote. cases of apparent injustice disturbed denning. he was later to describe binding principles as "false idols which disfigured the temple of the law." in the fullness of his career, he was to come to a position where he could do something about them. in 1944 he was appointed a judge. accordingly, he served in judicial office for 38 years. he was elevated to the english court of appeal in 1948 and to the house of lords in 1957. in 1962 a vacancy occurred in the position of master of the rolls. lord denning took this position. there he remained until july 1982. at the age of 83, he admitted no diminution in intellectual vigour. if anything, in his later years, he seemed to show an increasing reformist zeal. his appeals to the 'broad rule of justice itself' became more frequent and more insistent in the closing years of his judicial service. for a judge to take this course under our system of law is unusual. for the presiding judge of england's second highest court to do so, and frequently to carry his colleagues with him, is nothing short of remarkable. he has had his critics. they are not confined to the clubs where gather the judges and lawyers, or the boardrooms of newspapers' offices in whitehall or other places where disappointed or disaffected litigants collect. but observers of the common law world could not ignore the extraordinary impact of his intellect. stability in reform lord denning illustrates the difficulty facing all law reformers, whether judicial or otherwise. the law is a force for stability and predictability in society. people need to know what the law is so that they can live peacefully together without resort to violence or expensive litigation. but times change. the inventions of science and technology present challenges to the law which often speaks in the language of a previous time. moral and social attitudes change rendering previously accepted values suspect or unpalatable. well established principles which may have endured for centuries can lead to results that strike the modern judge as unjust but the law, nonetheless. the original genius of the common law of england lay in its capacity to adapt its rules to meet different social conditions. the advent of the representative parliament has tended to make judges, including appeal judges, reticent about inventing new principles of law or overturning decisions that have stood the test of time. "heresy is not the more attractive because it is dignified by the name of reform,"s declared viscount simonds, one of lord denning's critics. "it is even possible that we are not wiser than our ancestors. it is for the legislature, which does not rest under that disability, to determine whether there should be a change in that law and what the change should be.,,9 8. midlalld si/icolles lid. v. scrullol/s ltd. [1962] a.c. 446, 467. 9. chapmall v. chapman [1954] a.c. 429, 444. 105 the denning law journal denning suffered no tongue-tied inhibitions just because parliament could change the law. parliaments have generally shown little interest in the reform of wide areas of the law. individual, small injustices may not amount to many votes or much public interest. repeatedly in his thirty-eight years as a judge, denning expressed impatience with the notion that the judge's duty was blindly to follow precedents or, if there were none, to do nothing, leaving it to the legislators to act. in october 1979 addressing the national conference of the english law society he again took his stand for the judicial role in law making: "law reform ... should not be left solely to the law commissions. there is a great movement today which says that judges should not do anything to reform the law, that they should treat their old cases as binding upon themselves and do nothing. i give you an example ... [in a recent case] i said there should be a radical reappraisal of our system of assessing damages for personal injuries and, in the house of lords, lord scarman giving the one' judgment said: 'yes i agree with lord denning there ought to be a radical way of reappraisal. ' but he went on to say that we will not do it. we will leave it to other bodies. the law commissions can do all this and eventually report. how long will it take? will it ever take place? i would suggest that there is still a field for judge made law in our land. of course, i do not get my own way as a rule." 10 certainly, an aspect of the original common law system was constant law reform: judges and lawmakers working together to mould principles to fit the new circumstances of the case before them. but such inventiveness is not now common, whether in england, australia, or other common law countries. lord denning again: "writing in the times of 5 january 1977, sir leslie scarman said: 'the past 25 years will not be forgotten in our legal history. they are the age of legal aid, law reform and lord denning'. i am gratified by the tribute but i feel that many of my endeavours have failed at any rate so far. the strict constructionists still hold their fortress. the officious bystander still dominates the field. the court of appeal is still bound hand and foot. the powerful still abuse their powers without restraint." 11 this is not to say that denning did not try. certainly, he was never prepared to leave it to law reform commissions and bureaucrats to improve laws which, in his view, judges could perfectly well attend to. in one case, for example, he found that courts should imply into a tenancy agreement, which said nothing about the 10. lord denning, address to the law society's national conference, jersey, october 1979, (1979) 76 guardiall gazelle, 1057. ii. lord denning, the discipline of lam (1979), at p. 315. 106 lord denning: an antipodean appreciation subject, an obligation upon the landlord to take care that lifts and staircases were reasonably fit for the use of tenants and their visitors. "i am confirmed in this view by the fact that the law commission in their codification of the law of landlord and tenant, recommend that some such terms should be implied by statute ... but 1 do not think we need to wait for a statute. we are well able to imply it now in the same way as judges have implied terms for centuries. some people seem to think that now there is a law commission the judges should leave it to them to put right any defect and to make any new development. the judges must no longer play a constructive role. they must be automatons applying the existing rules. just think what this means. the law must stand still until the law commission has reported and parliament passed a statute on it: and, meanwhile, every litigant must have his case decided by the dead hand of the past. 1 decline to reduce the judges to such a sterile role so i hold there that there is clearly to be implied some such term as the law commission recommends." 12 this passage gives the flavour and texture of this extraordinary judge's written style. short sentences. pungent phrases. headings in his judgments to guide the reader through his reasoning. even his critics and enemies acknowledge his skill in handling the legal techniques and in presenting them in prose which is startling because of its contrast to the normal style in which judgments are written. that is not to say that everybody approves of his very special way of writing english. a confessedly 'carping' review of his 1979 book the discipline of the law was rather severe: "the style is unmistakable. and unmemorable. judicial staccato. not a cadence in sight. 1wonder if that is the unfortunate consequence of writing all those longhand notes in the early days on the bench while those below waited for the pen to be laid down, for the 'ye-es', for the raised eyes." 13 to show that these matters are simply matters of taste, another reviewer of the same book asserts "the book is intensely readable." 14 there is little doubt that elegant or not, it is a prose style which is powerful for its simplicity and directness. it is the prose style of an evangelist and propagandist: appellations which lord denning would not shun. denning the reformer needless to say lord denning's view of his role frequently drove him into dissent from other more conventional judges. even where, in the court of appeal, he carried the day, he was sometimes reversed in the house of lords in chilling 12. liverpool city council v. irwin [1976] qb. 319, 332. 13. j. a. g. griffith, book review (the discipline of the law), in (1979) 42 m.l.r. 348. 14. c. h. gage, book review, in (1980) 39 c.l.j. 194, at p. 195. see also review by t. harper, in (1979) 129 new l.j. 83. 107 the denning law journal language. one of his abiding concerns was to reform the law of contract. he waged a battle over a quarter of a century against the unfair exclusion of claims by written terms, sometimes found obscurely on the back of a ticket or form. but to his 1951 plea for the law to look at the reality of contract relationships, the lords answered coldly. "phrases occur", said viscount simon "which give us some concern." 15 lord simonds added, "it is no doubt essential to the life of the common law that its principles should be adapted to meet fresh circumstances and needs. but i respectfully demur to saying that there has been or need be any change in the well-known principles of construction of contracts." 16 undeterred, denning went on to effect important changes in contract law, guided by justice and commercial morality, as he saw it. his reformist enthusiasm was not limited to contract cases. he helped to dispose of the principle that a hospital was not liable for the negligence of its professional staff. he decided the first of many cases in which a deserted wife was held entitled to remain in the matrimonial home. in 1951 he wrote a famous dissenting judgment lamenting the calamitous exception from the law of negligence which relieved many, including professional advisors, from actions for damages for loss caused by negligent as distinct from fraudulent misrepresentations. he did not hesitate to dissent, although he was then but recently added to the court of appeal. the language he used was typical: "this argument about the novelty of the action does not appeal to me in the least. it has been put forward in all the great cases which have been milestones of progress in our law. in each of these cases the judges were divided in opinion. on the one side there were timorous souls who were fearful of allowing a new cause of action. on the other side there were the bold spirits who were ready to allow it if justice so required. it was fortunate for the common law that the progressive view prevailed." 17 although in 1951 the progressive view did not prevail, in 1963 the house of lords introduced a limited duty of care for persons who take upon themselves to supply information or advice to people whom they know will place reliance on it. j 8 lord denning's dissent of 1951 became the rule in 1963. it has now been substantially adopted in other jurisdictions, including australia.19 be you never so high a judge who so often turned the law upside-down was bound to attract criticism. in 1971 some thought he went too far when he held that decisions of the house of 15. british movietone news ltd. v. lorldon and district ciuemas ltd. [1952] a.c. 166, 181-182. 16. ibid., at p. 188. 17. candlerv. crane, chnstmas (sco. [1951] 2 k.b. 164, 178. 18. hedley byrne (s co. ltd. v. heller (s parlllers ltd. [1964] a.c. 465. 19. mutual life and citizens' assurance co. ltd. v. evatt [1971] a.c. 793. see now shaddock aud associates pty. ltd. v. parramatta city council (1981) 55 a.l.].r. 713. 108 lord denning: an antipodean appreciation lords not only did not bind the lords themselves but might not bind the court of appeal. he could not abide a decision of the lords which had abolished punitive damages. he saw it as having "knocked down the common law as it had existed for centuries." 20 carrying two colleagues with him, he held that this rule of the lords "should not be followed ... because the common law of england on this subject was so well settled before 1964 ... that it was not open to the house of lords to overthrow it." 21 it remained for lord chancellor hailsham to deliver a sharp rebuke. "it is necessary", said the lord chancellor, "for each lower tier, including the court of appeal, to accept loyally the decisions of the higher tiers." 22 but it was not only denning's judicial and more conservative legal critics who expressed astonishment at his views. some believed that denning was excessively teleological in his approach. he was charged with thinking of the result he wanted before he considered the legal reasoning on which it had to be founded. this process was all very well if there was agreement on the first principles which were guiding him. but should a judge, near to the apex of the legal system, be able to give vent to his personal value system, thereby disrupting settled principles and creating confusion and uncertainty in the law? during the 1970s denning took a leading part in the assault on ministerial and executive authority. he leapt to the defence of the little man in combat with the bureaucracy. he appealed to the old bill of rights.23 in january 1977, he took part in the decision by which the court of appeal granted an injunction on the application of a private citizen directed at a union which, contrary to law, had announced a ban on postal services to south africa.24 he rejected the claim that the attorney-general's fiat was necessary to permit a private citizen to bring the case. "every individual in the land has an interest in the channels of communication being kept open. the law shall be obeyed. even by the powerful. even by the trade unions. we sit here to carry out the law. to sec that the law is obeyed. and that we will do. a subject cannot disregard the law with impunity. to every subject in this land, no matter how powerful, i would use thomas fuller's words over three hundred years ago 'be you never so high, the law is above you'." 25 subsequently the house of lords reversed this decision holding, in effect, that the courts could not question the long established rule that it was for the 20. broome v. cassell [1971] 2 qb. 356. 21. ibid., at pp. 380-381. 22. broome v. cassell [1972] a.c. 1027, 1054. 23. couriel v. v,lio,l ofposl oj]iceworkers [1977j 2 w.l.r. 310, 331 (on appeal 10 the i-louse of lords, appeal allowed) [1978] a.c. 435. 24. couriel v. v,liorl of posl office workers [19771 2 w.l.r. 310. 25. ibid., at p. 331. 109 the denning law journal attorney-general not the courts to decide whether such actions should be brought. this very question is now under study in the australian law reform commission. there are some who say that lord denning's view, though held not to be good law, may yet be right in principle and become the law. others assert that he is too concerned with the 'little man' and forgets that, in the modern state, the elected government represents the mass of 'little people' and is no longer the crown exerting selfish, overweaning power. other critics point to denning's concern to uphold valiantly christian principles of morality and to impose them on all members of a pluralistic society. in one famous case, he denied relief to a young girl, gillian ward, who had been expelled from a teachers' college after being found with a man in her room at night. "i,do not think she has been treated unfairly or unjustly. she had broken the rules most flagrantly. i say nothing about her morals. she claims that they are her own affair. so be it ... but instead of going into lodgings, she had this man with her, night after night. that is a fine example to set to others! and she is a girl training to be a teacher! she would never make a teacher. no parent would knowingly entrust their child to her care." 26 the same strong language came out in his well known report on the 'profumo affair' in 1963. he did not hesitate to lay responsibility squarely on the prime minister and his colleagues. the report rings with his moral outrage. its impact was the more electrifying because of this. those who did not complain about his 'blind spot' where matters of morality were involved, asserted that he was just a conservative member of the english ruling class who reflected the attitudes of a britain in which he grew up and which was then still a great imperial power. wherever an international element is involved in the case, it is said, lord denning usually came down in favour of english law and english courts to the exclusion of applying foreign law to the parties' transactions, although towards the end of his judicial career he has faced realistically the 'incoming tide' of the law of europe as it affected the united kingdom. what most exasperates lord denning's critics is what is seen to be an idiosyncratic claim to plain talking morality: "he uses history as if it were a box of goodies from which it is possible to extract all sorts of useful arguments. whether they meant then what they can be interpreted as meaning now worries him not at all. he must know that the 19th century was not like that. but if it were, so much the better for his analysis of what characterises the 20th. so let's pretend. for all his private searching in his books lord denning is the most unhistorical of reformers ... my view of where the line should be drawn between judicial power and 26. ward v. bradford corpora/ion (1972) 70 lg.r. 27. 110 lord denning: an antipodean appreciation ministerial power will not necessarily be that of the next man. but it is likely that he and i will agree that the line is political. i wish lord denning would. he plays not only the ace of trumps but all his 52 cards as if god had dealt them to him. there are other players who also have a view of justice, different though that view may be from lord denning's ... " 27 according to this critic, lord denning's value as an innovator could not be denied. certainly, when his sympathy was aroused, he could be a most formidable champion. "but his view of justice is too personal, too idiosyncratic, too lacking in principle for greatness. he may instruct us, as he claims to do, in the principles of the law. but the grasp of political principle, the insight into the natur.e of the change that society is currently undergoing, for these he shows no special flair, no particular understanding." 28 the controversies that surrounded denning, the law reformer in the courts, persisted into his 82nd year. not only did his views on the scope of the privilege of journalists give rise to comment.29 his observations in the jury vetting case30 also drew a dissenting voice from the times editorialist. this was a case where lord denning sought to strike a blow for a cause he has long championed: a new approach to statutory interpretation. the editorialist cried caution: "what lord denning is trying to do is to import into the interpretation of statutory provisions the same degree of judicial creativity as is normally applied to developing the common law. the tradition of english law does not support that approach. it may be acceptable to introduce a qualifying element of equity into the harsh rules of statutory construction. [but] this would be, under his formula, for the majority of judges to determine a sensible result. that would be to usurp parliament's function and give judges a power which the vast majority of them neither seek nor are capable of exercising." 31 once again, lord denning may simply have been ahead of his time. in australia, at least, important changes have been introduced in the rules governing statutory construction.32 denning's acceptance of reform undoubtedly stimulated the greater willingness to accept the reality of judicial creativity and to provide new rules designed to acknowledge and direct that creativity. in may 1980 the times editorialist returned to this theme in comments on lord denning's ruling about journalists' privilege: 27. griffith, supra n. 13, at p. 349. 28. ibid., at p. 350. 29. lord denning, the due process of law (1980), at p. 30; what next in the law (1982), at p. 328. 30. r. v. sheffield crown court, ex p. brow/dow, unreported, times l.r. for 3 march 1980. 31. the times (london), 3 march 1980. 32. see, e.g., the acts interpretation amendment act 1984 (eth), assented to on 25 may 1984, and the interpretation of legislation act 1984 (vic), assented to on 23 may 1984. 111 the denning law journal "lord denning, this time, is on the wrong side ... what lord denning has done is to lay down a new test, based on whether a court thinks the journalist or his employer has acted properly and responsibly: 'if a newspaper should act irresponsibly, then it forfeits its claim to protect its sources of information.' that is neither a logical nor a necessary criterion. it would mean that a potential source, even one who revealed a relatively innocuous piece of information, would be at risk of having his identity divulged because his contact was adjudged to have acted irresponsibly. the courts are far from being the best judges of what is responsible journalism. their task should be to determine the balance of public interest, not to judge journalistic ethics. the court of appeal has done a disservice to the cause of press freedom." 33 to the day of his retirement, lord denning was followed by adulation and calumny, praise and blame and always controversy. why should this be so? because he is one of the chief proponents of the reformist role of the english judge. he enjoyed the approbation of those who agreed with his decisions. he had to endure the attack of those who did not. each he accepted with equal fortitude. denning and parliament there are some judges of our tradition who, for fear of being accused of "judicial imperialism",34 would not even venture to criticise a statutory provision which they felt, in a case coming before them, worked an injustice. an english attorney-general once told the house of commons that "it is a most important principle of our constitutional practice that judges do not comment on the policy of parliament, but administer the law, good or bad as they find it. it is a point of doctrine on which the independence of the judiciary rests." 35 in 1950, lord denning cautioned against taking this view too far. he pointed out that the judges had often called attention to laws being in need of reform. he quoted lord justice scrutton who, after wrestling with a very troublesome provision under the rent acts said that he was sorry that he could not order "the costs to be paid by the draftsman of the rent restrictions acts and the members of the legislature who passed them and are responsible for the obscurity of the acts.,,36 obviously, denning shared this view: "i do not myself see why responsible comments or suggestions on the way in which acts work, intended only in the public interest, should be regarded as an infringement of the sovereignty of parliament. this applies not only in respect of law laid down by judges or enactments of parliament in ancient times, but also in respect of enactments in modern times, subject to the 33. the times (london), 8 may 1980. 34. see g. s. reid, "the changing political framework", q!ladral/l jan-feb 1980, 5, at pp. 12-13. 35. cited by lord denning in his holdsworth lecture, "the independence of the judges" in b. w. harvey (ed.), the lawyer al/d justice (1978) 53, at p. 63. 36. ibid., at p. 66. 1i2 lord denning: an antipodean appreciation qualification that the judges must never comment in disparaging terms on the policy of parliament, for that would be to cast reflection upon the wisdom of parliament and that would be inconsistent with the confidence and respect which should subsist between parliament and the judges. just as members of parliament must not cast reflections on the conduct of judges, sojudges must not cast reflections on the conduct of parliament. if everyone observes these rules, there will be no conflict." 37 the australian law reform commission now collects and reports to parliament, judicial and other suggestions for law reform.3!! i am sure lord denning would approve this innovation; though never did he regard proposals to parliament as foreclosing his opportunities for judicial reform, without troubling parliament. lion or tribune? for every reformer on the bench like lord denning there are many more who have their doubts. some, such as sir garfield banvick, past chief justice of australia, deny that even the highest court may legitimately 'change' the law?} others, whilst acknowledging that judges may be good "contributors and formulators" 40 do not believe that they are the stuff of which reform is made.4\ on this view enthusiasm is not and cannot be a judicial virtue.42 even if not mere ciphers, mechanically discovering, declaring and applying the law, they see the judicial role as very severely circumscribed by its lack of democratic legitimacy. judges are not e1ected.43 parliaments, in our generation at least, are. on this view, whatever may have been permissible to the judges of ancient times, it is impermissible today. moreover, it flies in the face of the community's simplistic notion of democracy. if too candidly disclosed, it may undermine the appearance of judicial impartiality and neutrality.44 judges are urged by people who hold this view, not to confuse their role with the frank law making function of a legislature.45 they do not have its warrant from the people. they are generally members of the older generation. they are not reflective of the whole variety of the population.46 if the law is not satisfactory, the 37. ibid., at p. 67. 38. australian law reform commissionaliillial report 1983, p. 7; "community reforms" 11984134 rejimll, pp. 50-54. 39. g. e. barwick, "judiciary law: some observations thereon", (1980) 33 cl.p. 247. 40. p. devlin, the judge (oup, 1979), at p. 12. 41. j. a. griffith, the politics of the judicia!)1 (fontana, 1977), at p. 208. 42. devlin, mpra n. 40, at p. 5. 43. devlin, ibid., at p. 10; b. abel-smith and r. stevens, lawyers alld the courts (wcinemann, 1967), at p. 121. 44. lord reid, quoted in griffith, supra n. 41, at p. 179. 45. lord jowin, in abel-smith and stevens, mpra n. 43, at p. 287. 46. devlin, mpra n. 40, at p. 53. 113 the denning law journal people can blame parliament. if the shoe pinches, the brake on reform is a brake applied by parliament not by the judges.47 where parliament fears to tread, the courts should be specially careful. 48 the establishment of permanent law reform commissions, to help parliament with the reform of the law, provides the judges who hold to these views with further ammunition against their reformist brethren. law reform bodies have developed techniques of widespread community consultation which are not available to judges. at best, judges merely have only the parties before them. they might not be representative of the whole community. almost surely they would not provide the judge with the economic, scientific and other expertise available to professional law reformers. the first chairman of the english law commission, lord scarman, referred to these matters in distinguishing his approach to law reform, as a judge, from lord denning's: "i disagree with lord denning. i believe in law reform by statute, and preferably by statutes introduced after full consideration of the problem by the law commission, or other body charged with considering law reform, or the implications of law reform. lord denning thinks that one can take a short cut by judicial decision, avoiding all the parliamentary delays, and indeed the delays associated with a thorough-going and patient examination of the problem by a body like the law commission. i profoundly disagree with lord denning on this. and i think if i had any criticism of lord denning as a developer of the law, it is that he develops it at a cost of uncertainty. the question is where the line is to be drawn. i go along with lord denning to this extent, that i think there is room for a certain degree of development of the law by judicial decision. but i do think that the development has to be in the minor key. one cannot change a rule of law which is clear and well established merely because it produces a hard case, that is to say, works injustice." 49 in response, denning had put the judicial reformers' point of view. judges have been developing the law for centuries. parliament has neither the time nor the inclination to attend to all the necessities of law reform. 50 if it does attend to some of them, the delay is crippling. 51 it will not help the litigants in the particular case before the judge: "well, i am afraid the present trend is that the judges should not do anything new. they should not alter the law. there should be no law making by the judges. everything should be left to parliament or to the law commission. i 47. lord parker, hal/sard, 5th session (hl), vol. cclviii, 9 june 1964, col. 1071-2. 48. lord reid, in griffith, supra n. 41, at p. 183. 49. lord scarman, interviewed by hugo young, talki//fr law, ssc, 16 sept 1979. 50. lord denning, in paterson, the law lords (macmillan, 1982), at p. 181. 51. lord reid, in paterson, ibid., at p. 182. 114 lord denning: an antipodean appreciation take a completely different view. i think the judges alone can deal with the instant case, to remedy the wrong in the case which is before them. if you wait for legislation you may wait for years and years and they can't affect the instant case only the future cases. so i hope the judges, if they are strong enough, will continue to develop our law as by history they've done in the past ... if you have judges of the best kind, who are ready to take a broad view, you can get it done as well or better by judges than from all these long inquiries by law commissioners and the like. but of course, it depends on the judges." s2 standing hallway between denning and scarman, lord justice kerr, also a former chairman of the english law commission, could not disguise his admiration for lord denning's approach. perhaps it takes a professional law reformer of the 1980s to know the limitations of institutional law reform. will a reference be given? how quickly can the report be made? will it get through the bureaucracy? will parliament have the time to consider the report? will parliament change the recommendations?: "i do feel very strongly that when you've got a supreme!y able person, as lord denning is, it is a good thing to have what you might call a pacemaker somebody who, if you like, goes a little bit too far and then others can put him right under our ordinary process of the courts and appeals and so forth. but it's a good idea to have somebody there who is a bit more visionary than the rest. and he is the ideal person." s3 if we have thrown away the fairy tale54 that judges do not make, but only discover the law, there is still a natural disinclination for judges to embrace too stridently the assertion of their law making functions. the passive and mechanical view of the judicial role is deeply embedded in the community's consciousness. ss the suspicion of too much candour or too much activism in judicial law-making arises from a fear of idiosyncratic personal judgments not grounded in a coherent framework of legal rules. this, for example, was lord hailsham's criticism of lord denning: "i think there is a want of coherence in his approach to things. he has a very highly subjective view of the world, i think. speaking simply now as one who has appeared before him, as well as read his judgments in the reports, one's never quite sure with tom whether one's going to meet with the lion under the throne or the tribune of the people." 56 52. lord denning, interviewed by hugo young, supra n. 49, at p. 14. 53. m. kerr, interviewed by hugo young, ibid., at p. 12. 54. lord reid, "the judge as lawmaker," (1972) 12 }.s.p. t.£. 22. 55. lord radcliffe, quoted in m. cappelletti, "who watches the watchman? a comparative study on judicial responsibility", (1983) 31 a,}. com.l. 1. 56. lord hailsham, interviewed by hugo young, supra n. 49, at p. 10. 115 the denning law journal the way of the iconoclast whether lawyers are scandalised by denning or admire his persistence, courage and reforming zeal, he is clearly a great judge of our century who cannot be ignored. his judgments continue to have an influence on the life of the common law. we live in a time of change. people expect judges to help society meet the challenges of change. leaving each and every reform to parliament will simply not do. denning reminds us of the original genius of the common law: adapting the law's reasonable predictability and certainty, to new times. "what then is the way of an iconoclast?", he once asked an oxford audience. "it is the way of one who is not content to accept cherished beliefs simply because they have been long accepted. if he finds that they are not suited to the times or that they work injustice, he will see whether there is not some competing principle which can be applied in the case in hand. he will search the old cases, and the writers old and new, until he finds it. only in this way can the law be saved from stagnation and decay." 57 reformer or mischief-maker? revolutionary judge or maverick? lion under the throne or tribune? iconoclast or harsh moralist? one thing is certain, lord denning has been a towering figure of the common law of our century. his passion for justice and reform carries lessons for all lawyers and especially for those who take the judicial oath to do justice. 57. lord denning, "the way of an iconoclast", (1959) 5 ].s.p. t.l. 77, at p. 89. 116 human rights, 'arranged' marriages and nullity law: when do 'force', parental 66 denning law journal 2016 vol 28 special issue pp 66-108 offshore oil pollution damage: in pursuit of a uniform international civil liability regime jae sundaram* abstract a significant amount of marine oil pollution is vessel-source with another being non-vessel-source originating from offshore oil platform operations. the world has witnessed a number of oil spill disasters since the 1950s including the deepwater horizon incident in the united states, the montara wellhead platform in australia and the continuing oil spill incidents in the niger delta, nigeria. technological advances mean that offshore operators now venture further out from coastlines to explore for, and exploit hydrocarbon reserves, thus increasing the crude oil output, and also the possibility of oil pollution incidents from offshore platforms. the international convention on civil liability for oil pollution 1969 and the international convention on the establishment of an international fund for oil pollution damage 1971 were developed under the leadership of the international maritime organization in response to the increasing incidents of vessel-source oil pollution of the marine environment. since the entry into force of these conventions the membership has increased and the incidents of vessel-source oil pollution reduced. efforts made by the comité maritime international (cmi), as early as in 1977, to develop a uniform civil liability convention for claims arising from offshore operations did not come to fruition, and very little progress has been made in finding a solution. currently, there is no uniform international civil liability regime in place for oil pollution compensation claims arising for damages caused by offshore operations. this article explores the reasons behind the lack of a coherent legal framework to process civil liability claims arising from offshore oil spill incidents, especially when a comprehensive international regulation exists to govern vessel-source and other related forms of marine oil pollution. it argues that the lack of leadership to find a solution is proving to be highly damaging and that there is a strong case and an urgent need to establish a * senior lecturer in law, buckingham law school, university of buckingham. e-mail: jae.sundaram@buckingham.ac.uk. the denning law journal 67 uniform international offshore oil spill liability regime. the article looks at existing regimes, both regional and national, as a way forward to develop an international regime for oil pollution compensation for damages arising from offshore activities. keywords: offshore oil-pollution; marine oil-pollution; deepwaterhorizon; niger-delta; montara wellhead; civil-liability; clc; unclos; opol; us oil pollution act 2010. part i: introduction: extraction, carriage and the risk of oil spill crude oil is still the primary source of energy for the modern global economy. over half of the crude oil that is extracted, both off the coast and inland, is transported by sea for refining and eventual consumption. each year, over 2,000,000,000 metric tonnes of petroleum products are transported by sea, which accounts for a 29.8% share of annual seaborne trade.1 about 63% of the world's oil production is moved using maritime routes2 and, not unsurprisingly, has led to oil spills from tankers, drilling rigs and wells, and offshore platforms.3 the pollution caused by crude oil is a major threat as it can escape into the marine environment at any point during its extraction and transportation, viz., directly from the platforms, from the pipes, or from the oil tankers. offshore activities play an important role in crude oil production, with offshore installations producing an estimated 15.4 million barrels of oil per day globally.4 needless to say, both offshore operations and the carriage of crude by sea 1 in 2013 over 2,800,000,000 tonnes of oil and gas products were carried by sea. see unctad, “review of maritime transport” (2014) 4. 2 according to the us energy information administration (eia) estimates, in 2013, world petroleum and other liquids production was about 90.1 million barrels per day, and about 63% (56.5 million barrels) travelled by seaborne trade. see us energy information administration, ‘world oil transit chokepoints’ (10 november 2014) <http://www.eia.gov/countries/regionstopics.cfm?fips=wotcandtrk=p3> (accessed 4 march 2016). 3 oil spills may also occur due to releases of refined petroleum products, such as petrol, diesel, or from bunkers used in large ships, or from the spill of any ballast oil or waste oil from ships. 4 see m faure, l jing and w hui, “a multilayered approach to cover damage caused by offshore facilities” [2015] virginia environmental law journal 356422. see also quest offshore, “the state of the offshore us oil and gas industry: an in-depth study of the outlook of the industry investment flows offshore” no 14 (2011). offshore oil pollution damage 68 carry with them the high risk of oil spills leading to damage to both the marine environment and to the livelihoods of individuals. this article, in particular, is concerned with the legal issues relating to civil liabilities arising from the operations relating to the former. as it stands today, the fate of any civil liability claim arising from oil pollution damage appears to depend entirely on a) the source and the geographical location of the incident that gave rise to the claim—as there is a lack of uniform international regulation to govern such incidents, b) the domestic legal framework and oversight on corporate social responsibility, and c) in the case of developing nations involved in hydrocarbon extraction, the domestic legal and regulatory framework to oversee the work of offshore operations. legal claims are further influenced by factors such as the spill being vessel-source or non-vesselsource oil pollution. the outcome of any claim for civil liability is also shaped by the availability of any domestic legislation and/or any regional agreements and international conventions to which a state may be a party. liability laws in general have the function to compensate for damages caused to individuals, and also to serve as a deterrent to the originator of the damage.5 whilst, vessel-source pollution has been addressed globally with the participation of oil producers, shipowners, etc., under the leadership for the international maritime organisation (imo), the same cannot be said about the approach to compensation for pollution arising from offshore oil exploration and exploitation activities. this is a major loophole in international governance of the marine environment, especially as numerous offshore facilities have been developed in the littoral states since the creation of the clc, all of which have experienced numerous oil spill incidents from their offshore facilities over the past four decades. the current study analyses the reasons for the lack of a coherent legal framework to process civil liability claims arising from offshore oil spill incidents, especially when a comprehensive international regulation exists (since the late 1960s) for vessel-source and other forms of marine oil pollution. it also presents the key argument for the urgent 5 vj hartje, “oil pollution caused by tanker accidents: liability versus regulation” (1984) 24 nat. resources j. 41. the author also observes that since “…pollution causes damages to individuals, the use of liability law for pollution control would be a logical extension of existing instruments”. see also rb stewart, “liability for natural resource injury: beyond tort” in rl revesz and rb stewart (eds), analyzing superfund: economics, science, and law (resources for the future, 1995) 219-249. the author explores the natural resource damage regime in the us which represents an extension of traditional tort liability to public natural resources and how it serves to protect the public commons in the event of any environmental damage. the denning law journal 69 establishment of a uniform international offshore oil spill liability regime. the article argues that, subject to certain caveats, an international regime template can be developed using the us oil pollution act 1990 (opa)6 in conjunction with some of the existing regional agreements. this article is divided into five parts, with the first part presenting the introduction to the discussion, the second part taking up for discussion a selection of vessel-source oil pollution incidents from around the globe, and the civil liability conventions and domestic legislations that emerged from the incidents. the third part covers some of the offshore oil pollution incidents and the measures taken by developed nations to create a domestic civil liability regime. the fourth part presents the state of play as regards civil liability claims arising from offshore oil pollution and analyses the reasons for the lack of a clear strategy to develop an international civil liability regime. in doing so, it identifies the efforts of the comité maritime international (cmi). this part will also consider the urgent need for an international liability regime for oil spill liability arising from offshore operations and identify the major difficulties faced in putting together a uniform system. the fifth part investigates the possibility of forging an international regime using existing national regimes and regional agreements to cover liabilities arising from offshore operations, and concludes with suggestions for the way forward in the effective governance of claims arising from offshore oil spills. part ii: vessel-source oil spill incidents and the international civil liability regime the international regulation on marine oil pollution that is currently in force is focused primarily on vessel-source marine pollution. although there had been a number of vessel-source marine oil spill disasters since the 1950s, there was very little effort put in place internationally to prevent or mitigate marine pollution damage7 and a regulatory framework for vessel-source marine oil pollution only emerged after 1967. one early 6 the us, which is not a party to the clc, has its own domestic law, viz., the oil pollution act 1990 which covers civil liability claims arising from both vesselsource and non-vessel-source marine oil pollution liabilities. 7 see akj tan, vessel-source marine pollution: law and politics of international regulation (cambridge 2012) 107. a conference was convened in washington dc in june 1926 for the purpose of creating a regime to regulate vessel-source pollution within ocean zones. the author notes that at the conference, the uk and the us were able to persuade other states to adopt pollution control zones of up to 50 nautical miles from shore—beyond the traditional three-mile territorial waters limit. offshore oil pollution damage 70 international measure was the international convention for the prevention of pollution of the sea by oil 1954 (oilpol 1954) which expressly prohibited the discharge of oil and or oil mixture within specific geographic zones. the two vessel-source oil pollution incidents worth mentioning here that brought about changes to the law are the torrey canyon and the exxon valdez, which are discussed below, albeit briefly. while the first incident was instrumental in encouraging the international community to take action to create an international civil liability regime for claims arising from vessel-source oil spill incidents, the second was a catalyst for the passing of domestic legislation designed to address civil liability claims arising from both vessel-source and offshore oil spill incidents. torrey canyon: in march 1967 the oil tanker torrey canyon split into two in the english channel spilling its cargo of 119,328 tonnes of crude oil along the cornish coastline, contaminating the oyster beds and the fishing waters besides causing extensive damage to bird life.8 this incident, which caused damage of an unprecedented level to both the english and french coastline, served as a trigger9 for taking urgent measures to address the issue of civil liability claims arising from oil pollution damages. following the torrey canyon disaster, efforts to formulate an international regime for oil spill damages gained momentum. as, at that time, there was no international regime to regulate liability for compensation for oil pollution damage (both vessel-source and vesselsource), compensation was worked out under the domestic laws of the affected states. indeed it is not an exaggeration to say that the torrey canyon disaster, to a significant degree, forced the international community and the oil industry to re-examine the existing laws for assessing civil liability10 arising from oil pollution. by 1967 the first and second united nations (un) conferences on the law of sea had taken place and the issue of marine pollution had not featured on the agenda.11 it 8 for details of the case see vp nanda, “the torrey canyon disaster: some legal aspects” (1967) 44 denver law journal 400, 400-401. 9 akj tan (n 7) 288. see also m tsimplis, “marine pollution from shipping activities” in y baatz (ed) maritime law (informa law, routledge 2014) 369. the author notes that there was little public interest in developing pollution prevention and compensation regimes prior to the major pollution incidents. the author also notes that strong lobbying from the shipping industry to a certain extent delayed any development in this regard. 10 see g clausen, “liability for high seas oil pollution cleanup costs: domestic and international provisions” (1980) 3 hastings int’l and comp l rev 473-496, 474. 11 see akj tan (n 7) 115. the denning law journal 71 is to be noted that though there had been a few incidents of vessel-source oil pollution damage prior to the 1967, but none as severe as the torrey canyon. exxon valdez: this oil spill incident occurred in 1989 when the oil tanker exxon valdez ran onto the bligh reef in prince william sound in alaskan waters. the single-hulled oil tanker spilled approximately 11 million gallons of crude oil onto a varied marine ecosystem. at the time of the disaster the clean water act 1970 was in force in the us and the cost of removing the oil greatly exceeded the liability limit under section 311 of the act.12 due to the limited reach of the provisions of the act, in seeking a remedy the claimants were constrained to rely on other legal avenues available under domestic law13 the us, although a party to the international convention relating to intervention on the high seas in cases of oil casualties, was not a party the international convention on civil liability for oil pollution damage which governs civil liability claims for vessel-source oil pollution. the us has, instead, sought to create its own domestic framework to find solutions to civil liability claims arising from oil spill incidents, both vessel-source and non-vesselsource. the oil pollution act 1990 was enacted in response to the exxon valdez oil spill disaster14 and soon proved to be a watershed event in the history of modern oil pollution law in the us.15 in sum, both the torrey canyon, and the exxon valdez disasters resulted in vessel-source oil pollution in different jurisdictions, affecting both the marine environment and livelihoods. the resulting laws that developed in response to the above incidents differ, and an analysis of both international and domestic laws on the subject is presented below. 12 see km murchison, “liability under the oil pollution act: current law and needed revision” (2011) 71 la. l. rev. 917-956, 925. 13 ibid. the federal government, in this case, filed both civil and criminal charges against exxon, which paid nearly $900 million towards the civil charges and another $100 million towards the criminal case. besides, exxon was asked to pay $303 million with some private parties. later, exxon was also required to pay a further $500 million towards punitive damages. see exxon shipping co v baker, (2008) 554 u.s. 471, 476-514. exxon spent a total of $2.1 billion in cleanup efforts. 14 see li kiern, “liability, compensation, and financial responsibility under the oil pollution act of 1990: a review of the first decade” (2000) 24 tulane maritime law journal 481, 482. the author opines that there were other incidents such as the american trader (1990), and the mega borg (1990), which persuaded the us congress to pass the oil pollution act 1990. 15 ibid. offshore oil pollution damage 72 1. overview of civil liability claims for oil pollution 1969 in the aftermath of the torrey canyon and other oil spill disasters, relevant international conventions, collectively known as the clc-iopc fund regime, were developed under the auspices of the imo. the conventions currently in force to regulate civil liability claims for oil pollution are the international convention of civil liability for oil pollution 1969 (1969 clc), and the international convention on the establishment of an international fund for oil pollution damage 1971 (1971 fund convention). both were negotiated in 1967. this move represented a clear response from the international community to vesselsource oil pollution incidents. the civil liability regime for vessel-source oil pollution established under the 1969 clc enables victims of oil spill damage from member states to make financial claims against both domestic and non-domestic tanker owners and, in certain circumstances, against the global oil cargo industry.16 the 1969 clc and 1971 fund convention have since been amended, leading to the adoption of the 1992 clc, the 1992 fund convention and the 2003 supplementary fund protocol. strict liability is the dominant liability rule for marine pollution under the conventions. however, their scope is restricted to vessel-source oil spills and to such incidents of pollution damage in the territorial sea and exclusive economic zone (eez) of the signatories to the conventions. from available statistics it can be safely said that large vessel-source oil pollution incidents have reduced both in number and in size in recent times, but the potential threat of environmental damage and any consequential economic loss associated with the carriage of crude oil by sea still remains. it is worth noting that the clc 1969 has attracted more ratifications than any other international liability convention.17 although the clc enjoys a substantial membership, not all states are parties to the convention with the us being the notable absentee. so far as the protection and preservation of the marine environment is concerned, the member states which are parties to the un convention on the law of the sea (unclos 1982) have certain responsibilities and liabilities under the convention. the following section provides an overview of the relevant provisions of the unclos 1982, and highlights its importance to the current discussion. 16 m mason, “civil liability for oil pollution damage” (2002) 27 marine policy, 1. 17 b soyer, “compensation for pollution damage resulting from exploration for and exploitation of seabed mineral resources” in b soyer and a tettenborn (eds) pollution at sea: law and liability (informa, london 2012) 73. the denning law journal 73 2. un convention on the law of the sea 1982 the un convention on the law of the sea (unclos) came into force on 16 november 1994. although the us played a major part in shaping the final draft, in the end it did not ratify the convention. article 2(1) of unclos provides that coastal states have sovereign powers over their territorial sea, being the adjacent belt of water to their land territory and internal waters.18 article 2(2) further clarifies the position by extending sovereignty to the territorial sea bed and subsoil and granting the coastal state the powers of exploration and exploitation of the natural resources of the territorial sea.19 as regards the right of the coastal state over the exclusive economic zone (eez),20 article 56(1) of the convention provides that the coastal state may exercise sovereign rights for the purpose of exploring and exploiting the natural resources of the eez, and through the establishment and the use of artificial islands, installations and structures. importantly, article 57 limits the eez to 200 nautical miles from the baseline whilst article 235 outlines the responsibility and liability of littoral states/parties to the convention. the relevant article reads as follows: responsibility and liability 1. states are responsible for the fulfilment of their international obligations concerning the protection and preservation of the 18 see also c brown, “international environmental law in the regulation of offshore installations and seabed activities: the case for a south pacific regional protocol” (1998) 17 australian mining and petroleum law journal, 109-137, 115. 19 article 2(2) provides: “this sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil”. 20 the eez is defined in article 55 of unclos as follows: “the exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this part, under which the rights and jurisdiction of the coastal state and the rights and freedoms of other states are governed by the relevant provisions of this convention. the eez as a talking point in the law of the sea first emerged in the early 1970s, when a growing number of coastal states advanced claims to extend their authority over vast marine areas off their coasts. the eez as envisaged under the unclos attempts to reconcile these claims with the interests of the international community, such as freedom of navigation and the right of innocent passage. offshore oil pollution damage 74 marine environment. they shall be liable in accordance with international law. 2. states shall ensure that recourse is available in accordance with their legal systems for prompt and adequate compensation or other relief in respect of damage caused by pollution of the marine environment by natural or juridical persons under their jurisdiction. 3. with the objective of assuring prompt and adequate compensation in respect of all damage caused by pollution of the marine environment, states shall co-operate in the implementation of existing international law and the further development of international law relating to responsibility and liability for assessment of and compensation for damage and the settlement of related disputes, as well as, where appropriate, development of criteria and procedures for payment of adequate compensation, such as compulsory insurance or compensation funds. although unclos entered into force in 1994, no successful legal action was taken against any littoral state under the above provisions for some years nor had the seabed disputes chamber constituted under unclos been required to provide an advisory opinion. this position changed on 1 february 2011, when the seabed disputes chamber unanimously adopted an historic advisory opinion (the opinion) on the application of nauru during the international seabed authority’s 16th session. nauru had submitted an application for an advisory opinion from the seabed disputes chamber of the itlos seeking clarification on the sponsoring state’s responsibilities and liabilities.21 this is the first time 21 responsibilities and obligations of states sponsoring persons and entities with respect to activities in the area, case no. 17, advisory opinion (itlos seabed disputes chamber feb. 1, 2011), 50 ilm 458 <https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_17/17_adv_op_ 010211_en.pdf> (accessed 5 september 2016). see further h zhang, “the sponsorship state’s ‘obligation to ensure’ in the development of the international seabed area” (2013) 28(4) international journal of marine and coastal law 681-699. it is also to be borne in mind that the jurisdiction of the itlos comprises both contentious and advisory proceedings—both under article 21 of the itlos statute, and article 138(1) of the rules of the tribunal—and normally only signatory states may be made a party to the proceedings before the itlos. also, disputes arising under unclos may also be settled before the itlos, besides the icj or an arbitral tribunal. see r verheyen and c zengerlin, “international dispute settlement” in c carlarne, kr gray and r tarasofsky (eds) the oxford handbook of climate change law (oxford 2016) 431-32. see the denning law journal 75 that the advisory jurisdiction of the international tribunal for the law of the sea (itlos) was invoked and also the first time that the seabed disputes chamber was called upon.22 in the advisory opinion handed down by the tribunal, the significance of unclos was emphasised. amongst other things, the chamber defined the responsibilities and obligations of states that sponsor activities in the seabed area beyond their national jurisdictions—the “area”23 and the extent of the sponsoring state’s liability for the failure of any entity it has sponsored to comply with unclos 1982.24 article 136 of unclos designates the area and its resources as the “common heritage of mankind”. article 138, which deals with the general conduct of states in relation to the “area”, requires that the general conduct of states parties in relation to the area be in accordance with part xi of unclos. interestingly, the exploration and exploitation of minerals in the area are governed by the isa and require all prospective exploration and also d freestone, “responsibility and obligations of states sponsoring persons and entities with respect to activities in the area” (2011) 105(4) american journal of international law 755. 22 it was also the first time that the tribunal had reached a completely unanimous ruling in a case referred to it. until february 2011 the tribunal’s jurisprudence has been marked by a multiplicity of dissenting and separate opinions. following the above advisory opinion from 2011, the tribunal received a request for an advisory opinion on 28 march 2013 from the sub-regional fisheries commission. see the advisory opinion (2 april 2015) on the request submitted to the tribunal by the sub-regional fisheries commission (srfc) (no. 21) <https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.21/advisory_opi nion/c21_advop_02.04.pdf > (accessed 5 september 2016). see also dd baere and h wouters, “the contribution of international and supranational courts to the rule of law: a framework for analysis” in dd baere and h wouters (eds) the contribution of international and supranational courts to the rule of law (edward elgar, 2015) 73. 23 under article 1(1) unclos, the ‘area’ means the seabed, ocean floor and its subsoil that are beyond the limits of national jurisdiction. further, part xi of unclos deals with the exploration for and exploitation of its entire solid, liquid and gaseous resources. see verheyen and zengerlin (n 21). 24 freestone (n 21). for a more detailed analysis of the advisory opinion in relation to foundational issues of international environmental law see, d french, “from the depths: rich pickings of principles of sustainable development and general international law on the ocean floor—the seabed disputes chamber’s 2011 advisory opinion” (2011) 26(4) international journal of marine and coastal law525-568. offshore oil pollution damage 76 exploitation activities to be sponsored by a state party to unclos.25 if a licence is granted for exploration or exploitation, the isa determines the area to be allotted to the applicant; while the second area is reserved for activities by the isa through the enterprise or in association with developing states. however, the enterprise (the international body that was originally designed to carry out such activities for the benefit of mankind), was effectively disbanded by the 1994 agreement relating to the implementation of part xi, which brought the convention into force.26 in case 17,27 the first of three questions posed by the isa to the chamber was as follows: “what are the legal responsibilities and obligations of states parties to the convention with respect to the sponsorship of activities in the area in accordance with the convention, in particular part xi, and the 1994 agreement relating to the implementation of part xi of the united nations convention on the law of the sea of 10 december 1982?” in response, the chamber expressed the opinion that the phrase “activities in the area” included “drilling, dredging, coring, and excavation; disposal, dumping and discharge into the marine environment of sediment, wastes or other effluents; and construction and operation or maintenance of installations, pipelines and other devices related to such activities”.28 in the key part of the opinion, the chamber expressed the opinion that activities in the area for the purposes of the convention (article 139(1)) did not include transportation and processing (although these were covered by the regulations). further that state parties were 25 freestone (n 21). see also s rares, “an international convention on off-shore hydrocarbon leaks?” [2011] lloyds maritime and commercial law quarterly 361-371. under article 153, paragraph 3 the activities in the area are to be carried out in accordance with a formal plan of work approved by the authority in the form of a contract. that contract must also incorporate relevant rules, regulations and procedures in the “mining code” issued by the authority. the “mining code” currently consists only of regulations relating to prospecting and exploration for polymetallic nodules and polymetallic sulphides. the authority has not made any regulations for offshore exploration and exploitation of hydrocarbons. 26 the agreement relating to the implementation of part xi of the united nations convention on the law of the sea of 10 december 1982, july 28, 1994, 1836 unts 3. see also freestone (n 21). 27 advisory opinion (n 21). 28 advisory opinion (n 2), para 87. the denning law journal 77 obliged to assist the authority, and under annex iii, article 4(4) of the convention, the state parties “pursuant to article 139, have the responsibility to ensure, within their legal systems, that a contractor so sponsored shall carry out activities in the area in conformity with the terms of its contract and its obligations under this convention” (emphasis added). the chamber also observed that due diligence is a variable concept, as measures considered to be sufficiently diligent at a certain moment may not be so considered in light of new scientific or technological knowledge/advances. the opinion of the chamber makes it clear that the sponsoring state must take all measures necessary to ensure the contractor’s compliance and those measures must be incorporated in that state’s legal system.29 the opinion also suggests that a state sponsoring such activities in the “area” may (emphasis added) be held liable to pay compensation if it fails to carry out its responsibilities under unclos with due diligence and a third party were to suffer damage as a result.30 however, the opinion provides no clarity and certainty as to the amount or sufficiency of the compensation payable to the affected party, nor requires any insurance cover in the event the person primarily liable is unable to pay. the chamber also expressed an interesting opinion that according to annex iii, article 4, paragraph 4 of the unclos, the 29 ibid, para 118. see also freestone (n 21). 30 ibid, para 139. see zhang (n 21), where the author argues that the word “ensure” occurring in article 139(1) of unclos causes current and potential sponsoring states to worry about the assumption of any “obligation” as under the advisory opinion the sponsoring state will be deemed to be in breach of its obligations if its contractors do not comply strictly with the provisions of the unclos. the author takes the position that the characterization of ‘obligation to ensure’ as a due diligence obligation on the sponsoring state clarifies the meaning of ‘ensure,’ and from a legal perspective the obligation of a sponsoring state to a reasonable extent is in conformity with ‘historical and contemporary practice’ in international law, but from that from a seabed mining perspective it is appropriate to charge the states with the due diligence obligation. see further m gavouneli, “state jurisdiction in relation to the protection and preservation of the marine environment” in dj attard, m fitzmaurice, nam gutiérrez and r hamza (eds) the imli manual of international maritime law: vol iii: marine environmental law and maritime security law (oxford university press 2016) 13. the author takes the view that the advisory opinion of the chamber and the icj in in 2011 judgment in the pulp mills in the river uruguay case best defines ‘due diligence’ thereby confirming the position of the state as the final arbiter of all such activities and reinforcing the state-centred concept of international law. see however, rares (n 25) where the author argues that the advisory opinion does not go into detail of the state’s obligation to exercise due diligence. offshore oil pollution damage 78 “obligation to ensure” applies within the legal system of sponsoring states, and to implement and enforce it, necessary measures are required and must be adopted within the national legal system. in zhang’s view this observation may adversely affect the protection of marine environment as states that do not have a sound regulatory regime can reduce their obligation and responsibility and have the advantage to attract companies to set up base corporations to develop the area.31 what the chamber demonstrated in the opinion is that there is a possible recourse for those affected by any activities carried out by an operator authorised by a member state. the opinion can also, to some degree, particularly help those affected in developing countries (e.g. nigeria) who are not part of any regional agreement to seek redress for the damages caused in the course of offshore exploration and exploitation in their state’s eez. however, the claimants may not succeed in getting any monetary compensation if the operator/tortfeasor were not to have any insurance to cover any damages directly arising from their offshore operations. in february 2011, the imo secretariat prepared a note on the existing international instruments relevant to the subject of oil spills from offshore facilities.32 interestingly, the note refers to articles 192, 208, 214 and 235 of unclos but observes that these and other provisions do not create an international liability and compensation regime.33 it also refers to a number of other international instruments including the convention between european countries with oil and gas reserves in the north sea.34 31 zhang (n 27). see also r pereira, ‘pollution from seabed activities,’ in dj attard, m fitzmaurice, nam gutiérrez and r hamza (eds) the imli manual of international maritime law: vol iii: marine environmental law and maritime security law (oxford university press 2016) 95-138, 108. 32 international maritime organisation legal committee, note by the secretariat – information relating to liability and compensation for oil pollution damage resulting from offshore oil exploration and exploitation, 18 february 2011. see also rares (n 25). 33 see rares (n 25). for instance, the international convention for the prevention of pollution from ships (marpol 73/78) under article 2(3)(b) clearly excludes from its ambit the release of harmful substances from exploration, exploitation and associated off-shore processing of seabed mineral resources. 34 the convention on civil liability for oil pollution damage resulting from exploration for and exploitation of seabed mineral resources, adopted at london on 1 may 1977. the states parties to this convention are the united kingdom, germany, ireland, the netherlands, norway and sweden. see also rares (n 25). the denning law journal 79 3 the us response: the oil pollution act 1990 as mentioned earlier, the exxon valdez incident was a catalyst for the passing of the opa 1990. following the incident it became apparent that the existing legal framework was insufficient to process claims arising from oil spill incidents (both vessel-source and non-vessel-source),35 or to tackle some of the blowout incidents taking place in some of the offshore facilities. the act was aimed primarily at creating comprehensive oil spill liability and compensation legislation. the legislation is comprehensive in that it provides for a liability regime for oil pollution damage arising from both vessel-source and non-vessel-source pollution incidents, including from offshore facilities. it also expands both the recoverable damages and liability for oil spillage. importantly, the opa also mandates funding on a per-barrel contribution on oil imported to or transported within the us. this measure covers coastal trade, as the crude oil extracted in the us offshore facilities will be transported through vessels along the coast, which again from an operational perspective makes it vulnerable and potentially giving raise to vessel-source oil pollution. the opa is discussed in more detail here as it covers both vessel-source oil pollution and non-vessel-source oil pollution, and potentially serves as a template for work on an international liability regime. the provisions of the opa had been invoked in a number of cases, including civil liability claims arising from the deepwater horizon incident in 2010. also, there is good source of scholarly discussion available for scrutiny on both the positives and shortcomings of the legislation. section 1001(23) of the opa broadens the definition of “oil” by providing that it is of any kind or in any form whilst in section 1001(22) an offshore facility is defined as a “facility of any kind, located in, on or under any of the navigable waters of the us’ and subject to us jurisdiction. under the definition of “vessels”, the opa provides that a mobile offshore drilling unit (modu) is a vessel “capable of use as an offshore facility”36 and thereby effectively extending the same liability limits for vessels and offshore facilities to be applicable to a modu. section 1002(a) of the opa imposes strict liability on the responsible party (rp) of an offshore platform, stipulating liability for removal costs 35 murchison (n 12). 36 section 1001(18) reads as follows: “mobile offshore drilling unit” means a vessel (other than a self-elevating lift vessel) capable of use as an offshore facility. see the discussion in part 4.1 on the cmi draft 1977 which proposed the extension of those legal concepts unique to maritime law which applied to ships to offshore mobile craft. offshore oil pollution damage 80 and damages that result from the spillage.37 the “responsible party” (rp) of an offshore facility is defined in section 1001(32)(c)38 as the “lessee or permittee” as opposed to the “owner or operator”39 of an offshore platform. the focus of the opa in this regard is only marine oil pollution, and the offending object could be a sea going vessel, a floating platform, etc. the act has introduced tough provisions which enable the government to prevent the prospect of continuous wilful or inadvertent pollution originating from offshore platforms.40 the opa places strict liability on the “responsible party” and the definition, notably, does not include the owner of the oil cargo aboard the vessel. under section 2702(b)(2)(e), the opa recognizes, as recoverable damages, loss of profits or impairment of earning capacity arising from injury of natural resources.41 it is clear that the opa has expanded the damages that can be claimed for oil spills beyond those previously available under us federal laws. as in earlier oil spill legislation, the opa under section 2702(a),(b)(1) provides for the recovery of clean-up and removal costs. the approach taken in the opa to cover both vessel-source and nonvessel-source oil pollution claims eliminates the unnecessary problems as 37 section 1001(32)(c) reads as follows: “notwithstanding any other provision or rule of law, and subject to the provisions of this act, each responsible party for a vessel or a facility from which oil is discharged, or which poses the substantial threat of a discharge of oil, into or upon the navigable waters or adjoining shorelines or the exclusive economic zone is liable for the removal costs and damages specified in subsection (b) that result from such incident”. 38 section 1002(a) reads as follows: “in the case of an offshore facility (other than a pipeline or a deep-water port licensed under the deepwater port act of 1974 (33 u.s.c. 1501 et seq.)), the lessee or permittee of the area in which the facility is located or the holder of a right of use and easement granted under applicable state law or the outer continental shelf lands act (43 u.s.c. 1301–1356) for the area in which the facility is located (if the holder is a different person than the lessee or permittee), except a federal agency, state, municipality, commission, or political subdivision of a state, or any interstate body, that as owner transfers possession and right to use the property to another person by lease, assignment, or permit”. 39 section 1001(26) reads as follows: “owner or operator” means (a) in the case of a vessel, any person owning, operating, or chartering by demise, the vessel, and (b) in the case of an onshore facility, and an offshore facility, any person owning or operating such onshore facility or offshore facility, and (c) in the case of any abandoned offshore facility, the person who owned or operated. 40 md morgan, “the oil pollution act of 1990: a look at its impact on the oil industry” (1994) 6(1) fordham environmental law journal 1. 41 ibid at 5. hotel owners, pleasure craft lessors, and coast-side restauranteurs may recover under the statute. the denning law journal 81 to the definition of a “vessel” or “ship” that arise in the vessel-source international regimes under the clc. the opa requires oil storage facilities and vessels to submit to the federal government plans detailing how they will respond to large-scale oil discharges. following the passing of the opa, a trust fund financed by a tax on oil was made available to clean up spills when the offending party is incapable of, or unwilling to pay. the opa to a large extent has streamlined and strengthened the us environmental protection agency’s ability to prevent and respond to catastrophic oil spills in us waters. following the deepwater horizon catastrophe, serious questions were raised concerning the compensation regime in force for civil liability under the opa. one such question was how a major offshore-related oil spill damage could be compensated in the future.42 this concern comes from a leading modern state which views compensation as being an important component and key element of any civil liability regime, when a corporation (while acting under the authority of the state) is engaged in a highly profitable commercial venture, which also carries with it the major risk of causing environmental damage and loss to both property and livelihood, if not carried out properly. it is to be emphasised that compensation has an important role to play in such ventures, as it provides monetary relief to both victims and for restoration of the environment. any compensation regime also guarantees cost internalization and incentivizes operators and stakeholders to prevent further oil spills.43 for both vessel-source and non-vessel-source (offshore-facility) oil pollution, the opa imposes strict liability on the responsible party, who is required to establish and maintain evidence of financial responsibility up to certain amounts.44 for claims arising from both vessel-source and nonvessel-source oil pollution, liability of the responsible party is limited and under us law, civil liability claims will be processed through a patchwork of legislation including the opa. when damage costs are not covered by the limited liability of the responsible party, the pollution costs are covered by a federal fund.45 for vessel-source oil pollution the financial 42 faure, jing and hui (n 4). 43 faure, jing and hui (n 4). from an economic perspective, the primary goal of tort law is to minimize the total social costs, or in the other words, to create deterrence. see generally g calabresi, the costs of accidents: a legal and economic analysis (yale university press, 1970). 44 h wang and m faure, “civil liability and compensation for marine pollution lessons to be learned for offshore oil spills” (2010) 8(3) oil, gas and energy law journal 1. 45 ibid. offshore oil pollution damage 82 responsibility is based on the limited liability of the responsible party, whereas for non-vessel-source offshore facility oil pollution, the amount of financial responsibility is unrelated to the liability limit.46 under the vessel-source regime, the responsible party will be, on most occasions, the shipping industry (the shipowner, operator and/or charterer). nevertheless it is the oil industry that contributes to the fund based upon the barrels of crude oil shipped.47 under the offshore liability system, the responsible party is invariably an oil company licensed by the concerned state party to explore and exploit the area from which the spill originates although the oil industry still contributes to the fund.48 wang and faure’s analysis of the system raises the question of whether the liability regime under opa imposes too heavy a burden on the oil industry. it can be strongly argued here that all players are involved in the business to make profits—the operator through extraction, the oil industry through the sale of crude, and the state party through the levy of licence fees (and revenue), the creation of employment, and also the earning of foreign currency through the export of crude oil. this raises the question of whether the scheme envisaged under the opa can be adapted for the purposes of developing an international civil liability regime for damages arising from offshore oils spills. part iii: offshore oil spill incidents and the absence of an international response available statistics show that there are over 2,657 offshore installations in the us49 and, according to us bureau of ocean energy management, these provide about 16 percent of us domestic oil production and another 5 percent of domestic natural gas production.50 likewise, in eu waters there are around 1,000 offshore installations in operation.51 over 90 percent of the oil and over 60 percent of the gas 46 claims arising and brought against bp petroleum under the deepwater horizon incident showcased some of the intricate workings of the legal regime for civil liability claims. 47 wang and faure (n 44) observe that it is down to cost-sharing between the shipping and the oil industries. 48 ibid. 49 faure, jing and hui (n 4). 50 us bureau of ocean energy mgmt, ‘oil and gas energy program’ (april 2016) <http://www.boem.gov/oil-and-gas-energy-program/> (accessed 4 september 2016). 51 european commission, “commission proposes new rules on the safety of offshore oil and gas activities” memo/11/740, (27 october 2011). an the denning law journal 83 produced in the eu comes from offshore operations.52 the offshore facilities include fixed or floating platforms, offshore storage systems, wells, pipelines, drilling units and installations. offshore oil installations are classified into two broad categories, viz., mobile units (floating) and fixed platforms, where floating rigs include drill ships, semi-submersible and barges, and bottom-supported rigs which include submersibles and jack-up drills.53 it is estimated that around 6000 oil and gas installations are presently operating in the marine environment, with a sizable majority of them located in the gulf of mexico and the north sea.54 in addition, offshore oil and gas operations are now being carried out much further away from the land and at record depths.55 this expansion increases the estimated 486 are located in uk waters, 181 in the netherlands, 61 in denmark, 2 in germany, 2 in ireland, 123 in italy, 4 in spain, 2 in greece, 7 in romania, 1 in bulgaria and 3 in poland. see also european commission: energy, ‘topics: offshore oil and gas safety’ <https://ec.europa.eu/energy/en/topics/oil-gas-andcoal/offshore-oil-and-gas-safety> (accessed 4 september 2016). 52 european commission, impact assessment accompanying the document, “proposal for a regulation on safety of offshore oil and gas prospection, exploration and production activities” sec(2011) 1293 final, commission staff working paper (27 october 2011) <http://eurlex.europa.eu/lexuriserv/lexuriserv.do?uri=sec:2011:1293:fin:en:pdf> (accessed 4 september 2016). see also k sales, s mudgal and v fogleman, “civil liability, financial security and compensation claims for offshore oil and gas activities in the european economic area” final report prepared for european union (bio by deloitte 2014) 18. 53 k agyebeng, “disappearing acts toward a global civil liability regime for pollution damage resulting from offshore oil and gas exploration” cornell law school graduate student papers, paper 11 (2006) <http://scholarship.law.cornell.edu/lps_papers/11> (accessed 5 september 2016). see also e tarelli, “international efforts to establish rules on liability for offshore activities” in p ehlers and r lagoni (eds), responsibility and liability in the maritime context (lit verlag, hamburg, 2009). offshore installations for the purpose of exploration and exploitation of oil and gas usually encompass all types of fixed and mobile installations, as well as drilling, production and storage structures, whether self-propelled or not. 54 gesamp (imo/fao/unesco-ioc/unido/wmo/iaea/un/unep joint group of experts on the scientific aspects of marine environmental protection). 2007. estimates of oil entering the marine environment from sea-based activities. rep. stud. gesamp no. 75. 55 see faure, jing and hui (n 4). fixed platforms are used in shallow waters, not more than 400 meters deep. “deepwater” refers to a depth between 400 and 1,800 meters, and “ultra-deepwater” refers to a depth between 1,800 and 3,000 meters, or more. see “uruguay: first offshore well in years breaks world record” offshore energy today (1 april 2016). offshore oil pollution damage 84 possibility of more crude extraction and profit, and also a higher risk of more oil spill incidents. it is well documented that there have been several instances of oil pollution incidents from offshore facilities, reportedly causing serious damage to the environment and in turn to livelihood. studies show that the frequency of blowouts from oil wells is five times higher offshore than onshore,56 the databank maintained by det norske veritas (dnv) recorded more than 6000 such incidents around the world between 1975 and 2012.57 from a purely environmental point of view, offshore oil exploitation is a potentially destructive process from exploration to exploitation.58 in the case of offshore oil exploration, pollution hazards arise out of seismic surveys, oil drilling, the use of oil-based drilling muds and explosives, and the accidental spillage or leakage of oil and gas from offshore installations.59 some of the recorded oil spill incidents from the past four decades are presented below to gain a better picture and understanding of the considerable damage that they have caused to individuals and the marine environment. in some such incidents the state authority has responded proactively by introducing legislation to address the issue of liabilities arising from such incidents and also to introduce further regulation on energy exploitation through offshore facilities. ekofisk bravo: a major blowout occurred in 1977 on the bravo platform in the ekofisk field which led to the uncontrolled release of oil <http://www.offshoreenergytoday.com/uruguay-first-offshore-well-in-yearsbreaks-world-record/> (accessed 5 september 2016). on 30 march 2016, a maersk drillship broke the world record for the deepest water depth for an offshore oil rig in uruguay waters at a depth of 3400 metres (11,156 feet). 56 brown (n 18) notes that offshore blowouts are also more likely to result in fire. 57 as of 28 april 2014 dnv has recorded 6451 accidents in 3795 operating units. see cm hickey ‘new update of world offshore accident databank (woad),’ (28 april 2014) <https://www.dnvgl.com/news/new-update-of-world-offshoreaccident-databank-woad-available-8318> (accessed 5 september 2016). see also m christou and m konstantinidou, “safety of offshore oil and gas operations: lessons from past accident analysis” report eur 25646 (2012) 14, <http://publications.jrc.ec.europa.eu/repository/bitstream/jrc77767/offshoreaccident-analysis-draft-final-report-dec-2012-rev6-online.pdf> (accessed 5 september 2016). 58 z gao, “international petroleum exploration and exploitation agreements: a comprehensive environmental appraisal” (1994) 12(2) journal of energy and natural resources law, 240-56. 59 brown (n 18) notes that this does not include the escape of oil from ruptured pipelines on the seabed, and the disposal of sewage and garbage. a further problem is the disturbance of marine ecosystems by disused or abandoned platforms which are past their economic use. the denning law journal 85 and gas resulting in the north sea's biggest oil spill. the official inquiry into the incident attributed human errors as the major cause for the blowout. piper alpha: on 6 july 1988 a series of explosions rocked the piper alpha oil and gas production platform in the north sea oil field which resulted in 167 fatalities. this is widely considered as the deadliest accident in the history of offshore oil and gas industry. the 106 recommendations from the cullen inquiry60 published in november 1990 essentially re-shaped the offshore safety legislation and practices in the uk.61 these were incorporated into the offshore safety act 1992 together with other regulations aimed at augmenting safety on board offshore platforms operated within the territorial waters of the uk. montara wellhead platform: in august 2009, the montara wellhead platform in australia experienced an uncontrolled release of hydrocarbons. australia’s principal legislation covering the liabilities arising from the incident was the offshore petroleum and greenhouse gas storage act 2005 which applied from 3 nautical miles from the baseline out to the limits of the exclusive economic zone (eez).62 this accident reopened the debate on the suitability of an international framework regulating liability and compensation in case of accidents arising from drilling activities.63 in the aftermath, indonesia claimed that the oil slick from the well blowout damaged the marine environment in indonesian waters causing socio-economic hardship to the coastal communities who depended on the sea in the surrounding areas, and also to the living resources of the region.64 as of 2016, no pay-out has been made to the 60 the hon. lord cullen, the public inquiry into the piper alpha disaster, vols 1 and 2 (report to parliament by the secretary of state for energy by command of her majesty, november 1990). 61 christou and konstantinidou (n 57). 62 ibid. 63 j rochette and g wright, “strengthening the international regulation of offshore oil and gas activities” institut du développement durable et des relations internationales (iddri) brief (2015) <https://sustainabledevelopment.un.org/content/documents/5779brief%20offshor e%20gsdr_rev.pd> (accessed 12 may 2016). 64 ibid. in 2010, indonesia submitted a proposal to the legal committee of the imo regarding the development of an international regime for liability and compensation for oil pollution damage arising from offshore oil exploration and exploitation activities. see imo, report of the legal committee on its ninetyseventh session, leg 97/15, 1 december 2010. this proposal was rejected by the imo on the ground the same should be addressed at a regional level. see j rochette, m wemaëre, l chabason and s callet, “seeing beyond the horizon offshore oil pollution damage 86 indonesian claimants due to the fact that there was an inappropriate insurance cover for the operator, and an ongoing dispute as to the alleged extent of the damage sustained.65 while operators do carry insurance, it is to be determined in accordance with the regulatory limits set out by the national bodies (australia) that regulate offshore drilling in the country where they are headquartered.66 the incident also captures a scenario of how oil spilled in a marine environment is potentially capable of giving rise to civil liability claims in more than one jurisdiction. deepwater horizon: on 20 april 2010, an explosion occurred on the deepwater horizon, a mobile offshore drilling rig. the rig was owned and operated by transocean67 and leased out to british petroleum (bp).68 the explosion caused a blowout, killing eleven workers, leading to a fire that led to the sinking of the rig two days after the macondo well blowout. although attempts were made to activate the blowout preventer (bop), it failed, resulting in oil gushing into the gulf of mexico. the oil spill caused extensive harm to the marine environment, resulting in multibillion-dollar losses to the fishing, tourism and other industries. nearly 170,000 claims were submitted to bp’s claims offices and later to the gulf coast claims facility.69 bp, being a major oil enterprise and the party responsible for the oil spill, instead of invoking the liability cap clause under the opa to limit liability to $75 million plus removal costs,70 for deepwater oil and gas: strengthening the international regulation of offshore exploration and exploitation” iddri study no 1/14 (2014) 1-36. 65 ibid. 66 ibid. in indonesia’s view what is missing is an international framework which will apply for all incidents of this nature. 67 transocean is the world’s largest offshore drilling contractor. 68 british petroleum (bp), one of the world’s largest energy companies, was also the lessee and principal operator of the macondo prospect field, where the rig in question was located. at the time of the deepwater horizon incident, bp was the world’s fourth-largest corporation (based on revenue), producing over 4 million barrels of oil daily from 30 countries (including the us), with each barrel with a capacity of 42 gallons. see “global 500,” cnnmoney.com (26 july 26 2010) <http://money.cnn.com/magazines/fortune/global500/2010/full_list/index.html> (accessed 21 october 2015). 69 the gulf coast claims facility (gccf) was an independent “claims” facility established for submission and resolution of claims from individuals and businesses for costs and damages incurred as a direct result from deepwater horizon incident. bp agreed to contribute funds to an escrow account to be used to pay claims submitted to the gccf. 70 see 33 u.s.c. § 2704(a)(3) (2012). the denning law journal 87 opted to commit itself to compensate for total costs.71 the deepwater horizon incident led to an intensive re-examination of existing regulatory and liability schemes for offshore oil and gas activities in the us.72the incident also prompted the eu to pass safety directives to establish minimum safety standards to prevent major accidents in the offshore and gas operations within the eu.73 niger delta: nigeria is currently africa’s largest oil producer with a production capacity of 2.5 million barrels per day.74 unlike the earlier examples, the niger delta oil spills cover a period stretching to well over two decades with the region being subjected to grave oil pollution arising from unregulated offshore platform operations.75 in 2010, the national oil spill detection and response agency stated that since 2006, the niger 71 statement of bp exploration and production inc. re applicability of limit of liability under oil pollution act of 1990, in re oil spill by the oil rig “deepwater horizon” in the gulf of mexico, on april 20, mdl no. 2179, 2010 wl 4151003 (ed la. oct. 18, 2010). see also faure, jing and hui (n 4). 72 faure, jing and hui (n 4). see also i stefankova, “international regulation v. national regulation on offshore oil exploitation: the usa as an example” (2013) elsa malta law review, edition iii 126-139; w amos, “development of canadian arctic offshore oil and gas drilling: lessons from the gulf of mexico” (2011) 20(1) review of european community and international environmental law 39. 73 the european union adopted the offshore safety directive (2013/30/eu) with a view to establishing minimum standards/requirements for preventing any major incidents in eu waters. 74 k kalejaye, “nigeria risks losing africa’s biggest oil producer status” vanguard (9 july 2013) <http://www.vanguardngr.com/2013/07/nigeria-riskslosing-africas-biggest-oil-producer-status/> (accessed 3 september 2016). see also jw carpenter, “the biggest oil producers in africa” investopedia (15 october 2015) <http://www.investopedia.com/articles/investing/101515/biggestoil-producers-africa.asp> (accessed 4 september 2016). interestingly angola has been challenging the position of nigeria as the largest producer of crude in subsaharan africa. in june 2015 it briefly overtook nigeria in oil production, but has been dogged by government red tape and falling oil prices. see c mendes, “angola recently became africa’s largest producer, now its oil industry could disappear” (bloomberg 6 september 2015) <http://mgafrica.com/article/201509-06-angola-recently-became-africas-largest-producer-now-its-oil-industrycould-disappear> (accessed 4 september 2016). 75 for example, the funiwa 5 blowout in 1980 and the shell bonga oil spill, amongst others. see c nwachukwu, o ndiribe, e ovuakporie and k kalejaye, “bonga oil field spill: fg fines shell $5bn” vanguard (12 july 2012) <http://www.vanguardngr.com/2012/07/bonga-oil-field-spill-fg-fines-shell-5bn/> (accessed 5 september 2016). offshore oil pollution damage 88 delta area had suffered over 2,400 oil spill incidents.76 according to amnesty international, hundreds of oil spills occur annually in the niger delta, causing severe harm to the environment, to local livelihoods, besides placing the local population’s health at risk.77 oil corporations (primarily shell) have maintained the position that the vast majority of the oil spills are down to sabotage and theft.78 in amnesty international’s view the investigations into the oil spill incidents are not independent and lack transparency.79 in most cases shell has controlled the data that is recorded on joint investigation team forms and these forms are treated in the field as the company’s document80 which does not allow access to affected parties (potential claimants) and law enforcement authorities. this malpractice has to a great extent disadvantaged the rights of any lawful claims being brought against the oil corporations operating in the niger delta. the worrying trend can only be classified under corporate social irresponsibility (csi), suggesting that the country lacks any effective oil regulations.81 76 c eboh, “nigeria cautions exxon mobil on offshore oil spills” reuters news (15 june 2010) <http://www.reuters.com/article/2010/06/15/nigeria-exxoniduslde65e22c20100615> (accessed 5 september 2016). 77 see amnesty international, bad information: oil spill investigations in the niger delta (amnesty international publications, 2013) 5. according to amnesty international the spills were/are caused by corrosion, poor maintenance of oil infrastructure, equipment failure, sabotage and theft of oil. see also, amnesty international, petroleum, pollution and poverty in the niger delta (index: afr 44/017/2009) and amnesty international and the centre for environment, human rights and development (cehrd), the true tragedy: delays and failures in tackling oil spills in the niger delta (index: afr 44/018/2011). 78 in amnesty international’s view there is no basis for the above assertion by oil corporations. 79 see amnesty international, “oil spill investigations in the niger delta: amnesty international memorandum” (2012) <https://www.amnesty.org/download/documents/16000/afr440422012en.pdf> (accessed 5 september 2016). 80 ibid. 81 e wrigley, “oil spills: are corporations responsible for protecting the environment?” (2014) 3(3) african journal of economic and sustainable development 237, 243. see also g eweje, “environmental costs and responsibilities resulting from oil exploitation in developing countries: the case of the niger delta of nigeria” (2006) 69 journal of business ethics 27-56. the author argues that the central issue in both corporate social responsibility (csr) and business ethics is that of a company’s responsibility to the society and physical environment in which it operates. applying this argument, and the the denning law journal 89 however, in reality the federal government of nigeria adopted a regulatory framework as early as in the 1960s to monitor and control the activities of multinational oil corporations.82 it also implemented the 1963 oil pipeline act to monitor the extraction and production of petroleum products by all oil corporations in nigeria.83 at the time of its promulgation, the act was not meant to address the environmental pollution and degradation of other natural resources in nigeria, but was rather to establish the legality of the pipelines and their protection.84 nigeria was to later implement more extensive regulations in an effort to combat the problem of environmental damage arising from offshore oil spill incidents in addition to the nigerian oil and gas industry content development act 2010 (the 2010 content development act). in 1990 the oil pipeline act was passed which requires that oil corporations take responsibility for their actions and pay appropriate fees to the landowners affected in the oil-producing areas of the niger delta in the event any damage is incurred.85 section 5(1)(a)(b) the 1990 act grants the oil licence holder the right to enter and survey the land without interference from any third parties, and also to provide adequate maintenance of those pipelines in the niger delta oil producing communities.86 in fact the petroleum exploration decree no 25 of 1969, required oil operators to take prompt action to control and, if possible, end any pollution.87 however there is very little evidence to suggest that the oil operators acted to comply with the provisions of the decree no 25. section 20(2)(1)(a)(b) and (c) stipulates the compensation that the holder of a license must pay to the land owners or third parties for damages resulting from its operations. unfortunately, none of the above provisions seem to have been used by claimants from the niger delta to bring a substantially successful claim for oil pollution damage before the judiciary in nigeria. evidence also shows that “… most oil companies available evidence, one can boldly state that the oil corporations operating in the niger delta do not seem to follow the good practice principles of csr. 82 aoy raji and ts abejide, “compliance with oil and gas regulations in the niger delta region, nigeria c. 1960-2000: an assessment” (2014) 3(8) arabian journal of business and management review 35, 36. 83 ibid. 84 ibid. 85 ibid, at 37. 86 c mwalimu, the nigeria legal system: volume 2, private law (peter lang 2009). 87 raji and abejide (n 82). offshore oil pollution damage 90 deliberately contravene established regulations” in relation to the environment in nigeria,88 which is shocking to say the least. the 2010 content development act was aimed at facilitating the participation of nigerians and nigerian companies in the country’s oil and gas industry. this act signalled the government’s intention to increase indigenous participation in the overall functioning of the oil and gas industry in the country.89 even so, section 92 of the act has come under severe criticism as it seems to facilitate institutionalised corrupt practices amongst public officials overseeing the implementation of the act.90 overall, the above discussion has emphasized that the niger delta region has suffered and continues to suffer from a combination of institutionalised corruption, unregulated exploitation of mineral resources whilst the offshore operations in the region are characterized by numerous oil spill incidents.91 some striking features of the problem include large scale csi of the firms engaged in exploration and exploitation of off shore hydrocarbon resources in niger delta, a lack of clear state/legal oversight of such activities and an inept judiciary in dealing with civil liability claims arising from oil spill damage claims.92 88 ibid at 42. 89 see u bellema, “local content policy and smes sector promotion: the nigerian oil industry experience” (2010) 5(5) international journal of business and management. the author observes that from the data gathered, in a number of cases the local content policy resulted in increased contract awards to existing companies without significantly enhancing the participation of new entrants. the author concludes that the local content policy had had very little positive implication in enhancing higher small and medium sized firms’ participation in the oil and gas industry. 90 see c nwapi, “corruption vulnerability in local content policies in the extractive sector: an examination of the nigerian oil and gas industry content development act 2010” (2015) 46 resource policy 92. the author notes the existence of corruption vulnerabilities in the act and that section 92 does not have a place in law as it clearly paves the way for corrupt practices by stating that the “board may accept gifts of land, money or other property on such terms and conditions, if any, as may be specified by the person or organisation making the gift”. the author notes that if local content policies (lcps) are not properly implemented, resource-rich developing countries can create opportunities for corruption which can see revenues stolen from the state continuously and damage the business reputation of the country. 91 br konne, “inadequate monitoring and enforcement in the nigerian oil industry: the case of shell and ogoniland” (2014) 47 cornell international law journal 181. 92 ibid. the denning law journal 91 part iv: offshore facilities and oil pollution: the state of play the potential for large scale, widespread pollution damage exists with every offshore hydrocarbon drilling activity.93 under the “polluter pays” principle, the party responsible for polluting the marine environment is required to bear the costs of clean-ups and damages. however, as discussed above, liability for pollution damage originating from offshore platforms is yet to be resolved under international law. it would not be an exaggeration to state that the environmental concerns arising from offshore energy exploitation have largely been overlooked by the players involved in the oil industry.94 although there have been a few attempts to formalise a regulatory framework for civil liability claims arising from offshore oil spills, they have met with little success. the regulation of liability for pollution damage arising from offshore platforms and structures remain at the discretion of a state to prescribe such measures for compensation. one such measure adopted within the eu along with norway is the offshore pollution liability agreement (opol).95 the recent accidents arising from offshore operations, including the ones discussed earlier, demonstrate that the environmental risks of offshore drilling activities are prevalent in all regions of the world, and faced by all types of companies involved in the activities.96 the cross-border nature of the impact from such incidents has only reinvigorated discussions regarding the suitability of the current international regulatory framework for offshore oil and gas activities97 and highlighted the absence of a uniform civil liability regime to process claims for damages. it is also clear that there are regulatory gaps for both liability and compensation in case of accidents from, and for the safety of, offshore drilling activities.98 93 ibid. 94 gao (n 58) writing in the 1990s, notes that environmental concerns have more or less been neglected by both the governments of oil producing countries and exploiting companies, with hardly anyone suggesting that environmental protection and resources conservation should also be part of the petroleum agreements. 95 offshore pollution liability agreement 1974. 96 rochette and wright (n 63) 97 rochette, wemaëre, chabason and callet, (n 64). 98 rochette and wright (n 63). see also l chabason, “offshore oil exploitation: a new frontier for international environmental law” iddri working paper no 11 (2011), where the author notes that there is at present no ongoing process at the international level designed to fill the gap in the regulatory regime as regards the safety of offshore drilling activities. offshore oil pollution damage 92 the discussion in the following section will explore the earlier attempts by the cmi, the current state of play and also the way forward. 1 the cmi draft 1977 and other regional agreements in 1977 the cmi at its conference in rio de janeiro drafted a convention on offshore mobile craft (the rio draft),99 which proposed the extension of those legal concepts unique to maritime law and which applied to ships to offshore mobile craft. the original objective of the rio draft was to clarify the application of certain recognised principles of maritime law to new types of craft developed in connection with the exploration and exploitation of offshore mineral resources, but which did not fall within the definition of a ship.100 the reasoning was based on the fact that mobile craft, as in the case of sea going vessels, require ownership, registration and a flag, and the creation of maritime liens and rights of civil arrest.101 the imo had already adopted in 1979 and 1989 the modu code on the application of the loadline and solas conventions to mobile offshore drilling units.102 the rio draft which was the brainchild of the cmi, was forwarded to the imo for further discussions and in the hope of its eventual adoption at the international level. the draft was discussed at the cmi conference in sydney in 1994, where it was revised and adopted as the sydney draft, with the conference unanimously resolving that the cmi would “establish a working group for further study and development, where appropriate, of an international convention on offshore units and related matters”.103 99 r shaw, “offshore craft and structures: report of the legal committee of the international maritime organisation from the international subcommittee of the comité maritime international” cmi yearbook 1998, 145. see also n liu, “protection of the marine environment from offshore oil and gas activities” in rosemary rayfuse (ed) research handbook on international marine environmental law (edward elgar publishing 2015) 190, 203. 100 shaw (n 99). see also sections 1001(18) and (22) us oil pollution act 1990. 101 r shaw, “the fpso – is it a ship? the proposed cmi offshore mobile craft convention – an update” year book of australian mineral and petroleum law association (ampla yearbook) (2000). in the author’s view the cmi attempted to “apply established legal concepts specific to maritime law to the strange new craft generated by the offshore industry”. 102 shaw (n 99). the author observes that this code is a good example of the adaptation of established maritime law principles to craft for which they were not originally conceived. 103 ibid. it is worth noting that the author acted as chairman of the working group. the denning law journal 93 although the need for an international regulation on matters relating to the application of legal principles with regard to subjects such as registration, mortgages and salvage is well recognised, some sections of the industry are not overly convinced on the need for a convention.104 writing in 1998, shaw raised the bigger, and more pertinent question of whether the imo should try to produce “a broader based convention dealing with all offshore activities”, whilst attempting to develop a solution to the recognised legal uncertainties.105 this point gains force as there are in force a number of regional agreements covering the north sea, mediterranean, and arabian gulf areas with regard to civil liability claims arising out of offshore activities. however, there are regions such as south east asia, west africa, and the south atlantic which do not have a set of rules to govern any civil liability claims arising out from offshore activities and these would benefit from an international convention. likewise, the global ocean commission106 in its 2016 report expressed its commitment to “support efforts to adopt and improve international safety and environmental standards for offshore drilling on the continental shelf, including regional protocols… in line with the polluter pay principles, the commission also supports the development of an international liability convention to cover damage to the marine environment from offshore oil and gas installations”.107 for soyer the best international organization for handling a matter of this magnitude is the imo.108 unfortunately, the state parties that initiated the process for the creation of a new regime did not enjoy sufficient support from any of the international organizations. although the imo’s 104 ibid. the author notes that the international association of drilling contractors was not in favour of establishing an international convention. 105 shaw (n 99) 146. 106 the global ocean commission, an international initiative was launched in 2013. the commission works to raise awareness and promote action to address the degradation of the ocean. 107 the global ocean commission, the future of our ocean: next steps and priorities (february 2016) <http://www.some.ox.ac.uk/wpcontent/uploads/2016/03/goc_2016_report_final_7_3.low_1.pdf> (accessed 6 september 2016). in the 2014 report published by the commission similar commitments were expressed as regards the environmental standards of offshore carried out in the continental shelfs. see the global ocean commission, from decline to recovery: a rescue package for the ocean (24 june 2014) <http://www.some.ox.ac.uk/wpcontent/uploads/2016/03/goc_report_2015.july_2.pdf> (accessed 6 september 2016). 108 soyer (n 17). offshore oil pollution damage 94 current vision and strategic plan does not include pollution damage arising from offshore oil exploration and exploitation activities, it is worth pointing out that the legal committee of the imo at its 97th session in 2010 approved a proposal to recommend that the assembly revised the strategic plan, direction 7.2 to include the impact of offshore activities on the environment and related liability and compensation issues.109 the imo in its 99th session in 2012 was to reconsider its strategic plan, direction 7.2, as brazil had challenged the jurisdiction of the imo to work towards the creation of a multilateral convention. the objections related to the competency of the imo and also to the substantive issue of whether such a convention was needed.110 the imo’s legal committee opined that there was no compelling need to develop an international convention on the subject.111 in this regard gaskell takes a more pragmatic approach to institutional competence by noting that there are precedents for joint projects with other un bodies, and that “there is scope for the un to approve joint drafting work where the subject matter crosses jurisdictional boundaries”. gaskell presents the instance where two international organisations, the imo and the unctad coordinated as joint sponsors to work on the creation of the international convention on arrest of ships 1999. gaskell also opines that the imo may not possess the special (technical) expertise on offshore platform operations (as opposed to ships), but there is no other un organisation with comparable expertise to develop a liability and compensation regime.112 a more recent project to develop an international framework for civil liability arising from offshore activities was discussed within the g20 109 see n gaskell, “compensation for offshore pollution: ships and platforms” in m clarke (ed) maritime law evolving (hart publishing 2013) 63, 83. 110 leg 99/13/1, 10 february 2012. see also the report of the legal committee on the work of its 99th session, leg 99/14, 24 april 2012, 23-28. see also gaskell (n 109) where the author notes that the issue of the imo extending its competence to offshore activities had been raised when the sydney draft was being discussed in the mid-1990s. also of importance is the remit of the imo outlined in article 1 the imo convention 1948 on the purpose of the organisation which repeatedly refers to “shipping”: thus giving rise to doubts as to whether it was competent even under its own convention of 1948. 111 leg 99/14, 24 april 2012, para 13.7. 112 gaskell (n 109). the author also points out that work on any aspect of offshore activities will necessary include the united nations environment programme (unep), the international seabed authority (isa), the united nations office of legal affairs/division for ocean affairs and the law of the sea (un/doalos) and the international law commission. the denning law journal 95 framework but failed to progress beyond the preliminary stages of the discussion.113 this was only the second attempt after the cmi draft of 1977 and the failure to make progress at the highest level only demonstrates the difficulty in agreeing on the development of a binding international convention regulating an economic activity that is considered vital for most states.114 nevertheless, the existing gaps in the international legal framework have only encouraged the development of regional agreements. what has emerged as a result is a patchwork of fragmented and uncoordinated regional agreements. while some regional agreements, like the persian gulf/oman sea area, and the mediterranean are more comprehensive, some others like the arctic agreement are less so. also, the scope of the regional agreements varies, with some being binding on the parties and others remaining as only soft law instruments with little enforceability. one of the major drawbacks that rochette et al, highlight is the lack of coordination amongst states in the sharing of experience between different regions involved in offshore drilling regulation. one of the earliest conventions to be adopted in europe is the 1976 barcelona convention. sixteen mediterranean countries and the european community adopted the mediterranean action plan (map) in 1975, and in 1976 adopted the convention for the protection of the mediterranean sea against pollution (barcelona convention).115 most importantly the convention applies without distinction to all the maritime waters of the mediterranean sea116 and calls for the development of an international liability regime “as soon as possible”. these words originally contained in article 12 of the convention was later modified in 1995, and the amended provision now enshrined in article 16 no longer carries the words “as soon as possible”.117 the 1994 offshore protocol118 was one of the measures aimed at creating a liability regime. the protocol was finally ratified and adopted 113 rochette, wemaëre, chabason and callet (n 88). 114 ibid. 115 the convention for the protection of the mediterranean sea against pollution (barcelona, 16 february 1976, entered into force on 12 february 1978). 116 see article 1, para 1 of barcelona convention, which states, “… the mediterranean sea area shall mean the maritime waters of the mediterranean sea proper, including its gulfs and seas…”. see also pereira (n 31) 124. 117 pereira (n 31) 124. 118 protocol for protection of the mediterranean sea against pollution resulting from exploration and exploitation of the continental shelf and the seabed and its subsoil, adopted 14 october 1994, and entered into force on 17 march 2011. unep register of international treaties and other agreements in the field of environment (unep 2005) 569. offshore oil pollution damage 96 in 2011. its most interesting feature is that it covers a range of activities concerning the exploration and exploitation of seabed resources in the mediterranean. unlike its predecessor, the 1976 barcelona convention, the offshore protocol calls for the parties to establish under national laws the liability of the operator for damage and to pay prompt and adequate compensation.119 more importantly, in january 2008 the guidelines for determination of liability and compensation for damage resulting from pollution of the marine environment in the mediterranean sea area were adopted.120 although this is a step in the right direction, pereira opines that the regime governing liability for offshore pollution remains underdeveloped under the offshore protocol.121 gaskell notes that regional conventions are drafted much more in the language of general public international law obligations rather than the more precise private law casting such as the clc.122 as earlier stated, the eu in response to the deepwater horizon catastrophe, adopted the offshore safety directive (2013/30/eu) with a view to establishing minimum standards/requirements for preventing any major incidents in eu waters. the eu also carried out a review of the regulations in relation to offshore oil and gas activities within the eu envisaging safety rules. this however, fell short of adopting a moratorium on drilling.123 the eu also introduced a number of regulations on safety,124 and on the prevention of environmental damage.125 the eu 119 article 27(a), offshore protocol 1994. 120 guidelines for determination of liability and compensation for damage resulting from pollution of the marine environment in the mediterranean sea area (2008) (22 doc unep(depi)/med.ig.17/10) of 18 january 2008, adopted at the 15th ordinary meeting of the parties. see also t scovazzi, “mediterranean guidelines for determination of environmental liability and compensation: the negotiation for the instrument and the question of the damage that can be compensate” in a von bogandy and r wolfrum (eds) max plank yearbook of united nations law, vol 13 (2009) 183-212. 121 pereira (n 37) 125. 122 gaskell (n 109) 89. 123 pereira (n 31) 126. 124 european commission proposal for a regulation of the european parliament and of the council on safety of offshore oil and gas prospection, exploration and production activities, com(2011) 688 final. 125 directive 2004/35/ec on environmental liability with regard to the prevention and remedying of environmental damage, 21 april 2004. the denning law journal 97 directive126 covers a number of aspects including prevention of pollution, the response and the financial liability in relation to granting permits, controls. interestingly, the directive also requires companies seeking permits to have clear response plans in case of an oil spill event, and to prove they have the means to pay for the clean-up costs and for compensation for environmental damage.127 one criticism is that it pays more attention to accidental pollution from offshore oil and gas activities, rather than from operational pollution.128 as regards national legislation introduced by states with offshore activities, some are more detailed and address every stage of the platform’s lifecycle, from the exploration phase to the dismantling of installations, while others are limited to the production stage.129 the latter’s restrictive approach neither takes into account the environmental impact of such exploration and exploitation nor the consequences that gives rise to civil liability claims arising from the damage caused to property and persons. this criticism apart, the effective implementation of any domestic legislation by developing states also prevents them from effectively controlling and monitoring the development of offshore activities and enforcing regulations.130 returning to the international regimes, it is noticeable that the attempts to create an international regime are weak whilst the existing regional arrangements are limited in scope as they are restricted in their geographical coverage. this means it may not be possible to extend the same to a larger area. a classic example is the offshore pollution liability agreement 1975 (opol) which has limited geographical reach and where compensation for damages is capped at a rather low level.131 the opol agreement is a private agreement between the uk, denmark, germany, france, republic of ireland, netherlands, norway, isle of man, faroe islands and greenland—all operators in the offshore sector. opol was 126 directive 2013/30/eu of the european parliament and the council of 12 june 2013 on safety of offshore oil and gas operations and amending directive 2004/35/ec text with eea relevance, in force on 18th july 2013. 127 see pereira (n 31) 126. 128 liu (n 99) 201. the author notes that the directive is identified as eea relevant, which raises the question as to its applicability in the european economic area. this view is now under challenge by norway. 129 rochette, wemaëre, chabason and callet (n 64). 130 panel scientifique indépendant sur les activités pétrolières et gazières en république islamique de mauritanie, (2009) as cited by rochette, wemaëre, chabason and callet (n 64). 131 client earth, “note on the limitations of opol in response to oil and gas uk additional evidence” (2009). offshore oil pollution damage 98 introduced as an interim measure during the negotiation phase of the convention of civil liability for oil pollution damage resulting from exploration for and exploitation of seabed mineral resources. the uk government considered the opol agreement to be a satisfactory means of providing for a strict liability regime in case an operator should default on providing the clean-up costs associated with an incident.132 under the scheme every operator of an offshore facility in uk waters used in connection with the exploration for, or production of oil, gas or natural gas liquids is required to be a party to the opol agreement.133 additionally, any signatory to the agreement is required to demonstrate financial responsibility for costs resulting from the remediation of an oil spill and third party compensation for pollution damage.134 this is one of the key features that make the scheme work. the opol agreement has not yet attracted ratification or acceptance by any of the nine parties that took part in the intergovernmental conference which adopted the convention. the offshore pollution liability association ltd, the body that is responsible for the supervision and administrative operation of the opol agreement, accepts only operators as members of the association as they are more directly involved and hence in a better position than nonoperators to assume obligations imposed under the agreement.135 in essence, the opol agreement is a voluntary oil pollution compensation scheme that provides guarantees of payment for claims up to a liability limit of us$250 million per incident.136 the preamble to the opol 132 c feikert-ahalt, “oil spill liability and regulatory regime: united kingdom” library of congress (june 2010) <https://www.loc.gov/law/help/oilspill-liability/uk.php > (accessed 14 may 2016). see also, offshore pollution liability association limited, home <http://www.opol.org.uk> (accessed 14 may 2016). 133 see “oil spill cost study – opol financial limits” joint study commissioned by opol and oil and gas uk (2012) <http://oilandgasuk.co.uk/wp-content/uploads/2015/04/oil-spill-cost-study120531.pdf> (accessed 14 may 2016). 134 ibid. 135 interestingly, the agreement initially applied only to offshore facilities within the jurisdiction of the uk, but was later on extended to offshore facilities within the jurisdiction of the coastal states of the european community, of norway, of the isle of man and the faroe islands (denominated as “designated states”). 136 joint study of opol and oil and gas uk (n 145). the financial limit in the opol agreement is reviewed regularly. in october 2010 the limit was increased to us$250 million per incident, which was the industry’s response to the deepwater horizon incident in the gulf of mexico. the denning law journal 99 agreement outlines the scheme by stating that it seeks to “provide an orderly means for compensating and reimbursing any person who sustains pollution damage and any public authority which incurs costs for taking remedial measures as a result of a discharge of oil from any offshore facility”. the scheme envisaged under the agreement is that in the event of any oil discharge from an offshore facility, the operator of such facility must meet the cost of remedial measures and pay compensation for pollution damage up to an overall maximum of us$250 million per incident on a strict liability basis, subject to a limited number of usual exceptions (e.g. war and negligence of the claimant).137 it is indeed frustrating for those who are in favour of an international regime for oil pollution damage from offshore exploration when informed that the offshore oil industry is opposed to the idea of a global liability convention.138 currently, the oil industry’s specific obligations are geared more towards regulating oil tankers, as opposed to offshore drilling activities,139 which helps explain the attitude of the industry towards a global liability regime for offshore operations. sachs points out that the offshore industry does put pressure on the governments—both in developing and developed countries.140 developing countries are vulnerable as they need to attract international partners that have the financial and other resources to engage in energy exploration and exploitation but which may be keen to avoid discouraging any potential investors with measures such as offshore oil pollution damage regimes. interestingly, sachs also points out that developed countries have also opposed a civil liability regime fearing that removing obstacles to crossborder litigation through international agreements could potentially expose them and other corporate bodies in their jurisdiction to additional liability.141 as mentioned earlier, the opol regime which is in force in some countries with offshore facilities (like the uk) does not provide any 137 joint study of opol and oil and gas uk (n 145). 138 soyer (n 17) 75. 139 see k galbraith, “gap in rules on oil spills from wells” new york times (16 may 2010) <http://www.nytimes.com/2010/05/17/business/energyenvironment/17green.html> (accessed 16 march 2016). the author argues that the regulatory discrepancy due to the fact that tankers move across international boundaries whereas platforms remain fixed. see also d fowler, “offshore oil: a frontier for international law making” (2012) 12 chicago-kent journal of international and comparative law153. 140 n sachs, “beyond the liability wall: strengthening tort remedies in international environmental law” (2008) 55 ucla law review 837. 141 ibid. offshore oil pollution damage 100 certainty to the sector as such. the only option that law provides for any oil pollution damage is a tort action against operators and other tortfeasors. this remedy again is more a common law remedy, with the analogous position under civil law being based on delictual and quasidelictual civil liabilities.142 it should be noted that the position on limitation of liability under maritime law on the matter is unclear. again, when the pollution is from a pipeline (connected to the well-head), it is more likely that the liability will be unlimited. one can say that if an international regime were to be in place the offshore industry will benefit from a clear limitation of liability.143 2 the cmi draft, clc and other possible frameworks it can be argued that it is technically possible to extend the scope of the clc to cover liability for pollution arising from offshore installations, including pipelines attached to them, and craft.144 shaw and other authors point out that this was in fact the envisaged solution suggested by the cmi in 1977 when it proposed a comprehensive compensation regime for oil pollution damage arising from offshore operations.145 as discussed earlier, the scheme is found in the rio draft. as far as the scheme of the 1977 cmi draft convention is concerned, it seeks to apply the regulations of existing maritime/admiralty law practices to matters relating to arrest of ships, collisions, mortgages and salvage with regard to any maritime structure, as long as it is not attached permanently to the seabed. here, the reference is clearly to include offshore oil platforms. with regard to pollution liability arising from offshore installations and craft, the draft convention simply extends the earlier version of the clc 1969 to the superstructures. as mentioned earlier, the draft convention was forwarded by the cmi to the imo’s legal committee. the imo respond to it only in 1990 by requesting the cmi to undertake a further study, make a report and produce a modified draft convention. the cmi in 2004 met in sydney and carried out changes to the draft. this 142 l zhu and mz zhang, “insuring against marine pollution liability: an international perspective” (2015) 46(3) journal of maritime law and commerce 373. see also mpg rubio, “the prestige case, international and spanish legal regime for compensating damage” in m faure and j hu (eds), prevention and compensation of marine pollution damage, recent development in europe, china and the us (kluwer law, 2006). 143 soyer (n 17) 75. 144 shaw (n 99); soyer (n 17). 145 ibid. the denning law journal 101 draft, known as the sydney draft has a similar approach as the earlier draft from 1977 as regards the scheme of liability for pollution is concerned. soyer and tettenborn are of the view that it may be difficult to apply the clc and the fund regime to the offshore sector, as it may be difficult to get the sector to satisfy the compulsory insurance requirement.146 it is hard to determine how contributions to the fund from the offshore sector will be calculated, and also who will bear the financial responsibility for such contributions. under the clc, the fund receives contributions from the receivers (oil importers) of the oil in member states, which is relatively easy to determine. this may not be the case with the offshore industry, as the same principles as applicable to the clc may not be applicable. if the clc and the fund were only to be extended to cover the offshore industry, then it is only logical to require the offshore installations to contribute to the fund. the offshore industry is a complex sector, as in addition to the operators a number of other interested parties come into the frame such as the licence holders, the landowners, the contractors and the coastal state. in other words, it is a multiple-party operation with various individuals holding stakes at various points of the operation, with interests of their own. hence the operator may not be willing or be convinced to readily accept the additional financial burden. being a multiple-party operation, it will be extremely difficult to determine who will be responsible for making contributions. in the words of soyer, it “…has the potential of turning into a political mine-field”. strict liability, which is the backbone of the clc, will be of no use if there are no avenues to recover liability. the clc, which enables action to be brought directly against the insurer, also requires that compulsory insurance be taken out by registered owners up to the limit of their liability under the convention. the existence of a cover is the cornerstone of the clc and contributes hugely to its success, as it guarantees adequate compensation through its various insurance provisions.147 the clc not only imposes compulsory insurance on ship-owners but also requires them to carry a certificate of insurance as proof, ensuring oil pollution victims access to insurance proceeds by allowing them to bring direct action against the insurers.148 usually it is the p&i club which issues a certificate (known as blue card) confirming the existence of the required insurance. 146 soyer (n 17). 147 mm billah, “the role of insurance in providing adequate compensation and in reducing pollution incidents: the case of the international oil pollution liability regime” (2011) 29 pace environmental law review 42. 148 ibid. offshore oil pollution damage 102 this in turn is presented to the state/ship registry where the ship is registered. the concerned state authorities then in turn issue a certificate in recognition of the insurance.149 such an arrangement may not work in the case of offshore industry, as the p&i clubs do not offer liability insurance for pollution damage arising from such offshore operations.150 liability insurance in the case of offshore operators come from the commercial market and as the nature of the risk involved is different and complicated it may not be an attractive proposition for p&i clubs to be involved. will the states concerned be in a position to recognize the blue certificates from the commercial insurers for the offshore operators, especially when the limits of liability under the clc are to be high? in soyer’s view the stability and uniformity of the clc and fund regime could be seriously jeopardized if it were to be extended to the offshore industry, as it has the potential to change the balance considerably.151 they also opine that states with no offshore operations may view that the clc and fund conventions as subsidising a fund that only benefits states with offshore operations and may decide to leave the clc and the fund conventions altogether. in effect, extending the clc and fund convention to offshore operations could see the demise of the clc and the fund convention. for instance, under the european union directive 2004/35, referred to as environmental liability directive (eld), the operator of activities causing significant environmental damage to protected species, natural habitats, or water is strictly liable to prevent and remedy the damage, and also to bear the full costs of such remedial action.152 149 soyer (n 17). 150 such liabilities arising out from wells drilled, blow-outs from subsequent equipment connected to offshore installations, as well as clean-up costs. 151 soyer (n 17) 74. 152 under the eld, operators who carry out certain dangerous activities (as listed in annex iii) are strictly liable for environmental damage. in contrast, operators carrying out other occupational activities are liable for any fault-based damage. operators may benefit directly from certain exceptions and defences, for example force majeure, armed conflict, third party intervention, as well as defences introduced via transposition (e.g. permit defence and state of the art defence). operators must take preventive action if there is an imminent threat of environmental damage. they are also under an obligation to remedy environmental damage once it has occurred and to bear such costs under the polluter-pays principle. in specific cases where the operators fail to do so, or are not identifiable, or have invoked defences, the competent authority may carry out the necessary preventive or remedial measures. see t scovazzi, “maritime accidents with particular emphasis on liability and compensation for damage from the denning law journal 103 the position of strict liability for pollution damages greatly varies from one state to the other and is strongly based on the legal system that is followed. if liability is limited, it is very common to establish a compensation fund for cases where the amount of compensation payable exceeds the limitation, or where the responsible person for the damage caused is not identifiable.153 one example is the us practice established under the opa 1990, where liability for damages from offshore spills is capped at us$75,000,000 and claims up to us$1,000,000,000 above the cap are paid out of the oil spill liability trust fund.154 to pay out any damages, national legislation can also make it compulsory that the operator of any offshore facility is to be insured, or furnish adequate financial guarantees to cover the damages arising out of any accidents. hence the grant of any licence by a state to an operator for exploration and exploitation of seabed resources will be strongly predicated on the availability of financial security from the prospective operator or on the availability of an adequate insurance cover for the risks involved in the operation. the european union directive 2004/35 follows a gradual approach on the question of financial security. the relevant provision, article 14 of the directive reads as follows: 1. member states shall take measures to encourage the development of financial security instruments and markets by the appropriate economic and financial operators, including financial mechanisms in case of insolvency, with the aim of enabling operators to use financial guarantees to cover their responsibilities under this directive. 2. the commission, before 30 april 2010 shall present a report on the effectiveness of the directive in terms of actual remediation of environmental damages, on the availability at reasonable costs and on conditions of insurance and other types of financial security for the activities covered by annex iii. the report shall also consider in relation to financial security the following aspects: a gradual approach, a ceiling for the financial guarantee and the exclusion of low-risk activities. in the light of that report, and of an extended impact assessment, including a cost-benefit analysis, the the exploitation of mineral resources of the seabed” in international disaster response law, (tmc asser press, springer 2012) 287. 153 scovazzi (n 152). 154 ibid. offshore oil pollution damage 104 commission shall, if appropriate, submit proposals for a system of harmonized mandatory financial security. in 2010 the eu commission presented a report following from the above regulation.155 the report was tabled after extensive consultation with government experts and other stakeholders, such as insurers, brokers, banks and financial institutions and non-governmental organisations.156 with regard to the development of financial security, it was reported that eight member states, namely, bulgaria, portugal, spain, greece, hungary, slovakia, czech republic and romania were to introduce mandatory financial security, which measures were to come into effect at different dates up to 2014. later, it was reported that the member states portugal, spain and greece had put back the dates of entry of the above arrangement for mandatory financial security.157 on the question of insurance the operators were required to have adequate cover for general third party liability (gtpl), environmental impairment liability (eil), and for other risks. but, in the view of the european commission, the introduction of a uniform mandatory financial security is currently not justified158 but could be justified in specific cases of oil spills arising from offshore activities.159 to guarantee adequate compensation, the clc creates various compensation funds, primarily funded by the oil industry.160 two such funds are the international oil pollution compensation fund (iopc) and the supplementary fund. additional funds that currently exist are the canadian ship-source oil pollution fund (sopf), which covers oil pollution damage not recoverable under the international regime; and the us oil spill liability trust fund (osltf), which provides compensation above and beyond ship-owners' liability under the oil pollution act 1990.161 these funds function as an additional tier of insurance against oil pollution damage. in billah’s view, although intended primarily to provide adequate compensation, the insurance provisions contained in international agreements also incidentally lead to improved deterrence. 155 doc. com (2010) 581 final of 12 october 2010. 156 scovazzi (n 152). 157 doc. com (2010) 581 final of 12 october 2010. 158 scovazzi (n 152). interestingly, the insurance industry welcomed the eld, and had responded positively by developing products for eld, either specific ‘standalone’ solutions, or top-ups to existing liability products. 159 scovazzi (n 152). 160 billah (n 147). 161 ibid. the denning law journal 105 the reason being that insurance premiums needed for the above insurance arrangements will roughly reflect the compensation paid to oil pollution victims—and higher compensation means higher premiums—which in turn induce insured ship-owners and the oil industry towards a heightened standard of care so that they pay less in premiums.162 billah is also of the firm opinion that the success of vessel-source oil pollution liability regimes in providing adequate compensation is attributable to the various insurance arrangements which are part of the scheme, and as well as the higher limit on shipowners’ liability.163 also to note here is the advisory opinion of the seabed disputes chamber (under unclos) dated 1 february 2011, which does not give any clear picture on the amount of compensation payable to the affected party from such oil spill incidents, and which does not also require insurance cover in the event the person primarily liable is unable to pay.164 as mentioned earlier, the failure of the seabed disputes chamber to require operators to have an insurance cover denies any compensation claims to be processed under the provisions of unclos. also parties to any reference to the seabed disputes chamber can only be state parties, who are the licensors, or the license issuing authority for exploration and exploitation of the seabed resource. hence any action to enforce a private right (e.g., claim for compensation suffered as a direct result of oil pollution) before the 162 ibid. in the author’s view the incidental effect of insurance arrangements explains to some degree the decline in vessel-source oil pollution incidents. see also itopf, “oil tanker spill statistics 2015” (the international tanker owners pollution federation limited, february 2016) <http://www.itopf.com/fileadmin/data/documents/company_lit/oil_spill_stats_ 2016.pdf> (accessed 27 may 2016). two large spills (over 700 tonnes) were recorded in the year 2015, with both incidents arising from collision incidents. also reported in 2015 were six medium spills (between 7 and 700 tonnes) of various oils including cargoes of asphalt, naphtha and slurry oil, as well as bunker fuels. in the last three and a half decades the average number of incidents involving large oil spills from oil-tankers has reduced progressively, and since 2010 it stands at an average of 1.8 large oil spills per year. 163 the author uses the word “insurance” in its wider context to include any guaranteed source of compensation for victims of oil pollution damage, namely, the compensation from the iopc fund, the supplementary fund, the sopf, and the osltf. they are to be included under the term “insurance” as the common goal of these funds is to provide for adequate compensation against oil pollution damage. 164 see advisory opinion (n 27). see also rares (n 25), where the author comments that the advisory opinion of the seabed disputes chamber does not go into detail as to a state’s obligation to exercise ‘due diligence.’ offshore oil pollution damage 106 authority will not be sustainable and can only be processed before the domestic courts. the above discussion only demonstrates that any proposal to extend the clc and the fund regime to cover offshore operations largely depends on the existence of insurance cover and a fully supported fund from the industry concerned. the proposal while being ambitious can run out of steam if it is not backed by the operators and the offshore industry at large. likewise, both under the opol agreement (aimed at claims arising from offshore operations in the uk waters), and the opa 1990 (aimed at claims arising from both vessel-source marine pollution and offshore operations in us waters), it is absolutely essential that operators have a comprehensive, compulsory insurance cover for their operations. in short, all the existing regimes for claims arising from both vesselsource and offshore marine pollution, envisage the full cooperation and participation of the operators (shipowners, charterers, offshore operators, licensees, etc.) to fund any schemes for civil liability, and an adequate insurance cover for their operations which acts as the backbone.165 part v: the way forward rochette and wright highlight the possibility of several risks if no liability and compensation rules are adopted for damages caused by offshore incidents. in their opinion the risk of legal uncertainty surrounding the subject could potentially lead to political disputes between states.166 further, the absence of a legal framework in this area runs the risk of partial or total non-payment of damages by operators to the claimants who had suffered as a direct consequence of the oil spills arising from offshore operations. they call for the promotion of an international convention to regulate liability and compensation for pollution damage resulting from offshore drilling activities. there is also the risk of the operator going insolvent before the settlement of any claims, given the lack of financial capacity of many small operators (especially from developing countries) to pay for large claims,167 and in the absence of a clear cut civil liability regime the claimants may not have anyone to proceed against. however, the task of finding a solution through the creation of a new international regime for offshore oil 165 billah (n 147). 166 rochette and wright (n 63). 167 p cameron, “liability for catastrophic risk in the oil and gas industry” (2012) 6 international energy law review 207. the denning law journal 107 pollution damages may be a difficult task as there is very little political will amongst the international community to engage.168 in gaskell’s view there are many advantages in developing a multilateral convention-based regime to claimant states, as it can primarily bring uniformity of rules for an industry that operates worldwide.169 he argues that it would be more difficult for the industry to resist international action than national legislation, that the risk could be spread internationally (rather being targeted on one state), and most importantly a compulsory insurance would work where there is an inbuilt ability to seek reciprocal enforcement of judgments.170 gaskell also advocates, as a minimum, a “strict liability regime with its boilerplate defences, coupled with compulsory insurance and direct action”. apart from the lack of a political will, one of the major obstacles is also the lack of leadership to take up the task of forging an international convention, as the imo appears to be more concerned with safety at sea issues and is content to oversee the clc and the fund conventions. the cmi, which was instrumental in producing the 1977 draft, does not enjoy the same authority it seemed to possess in the twentieth century. also, a number of developing countries and emerging economies that are engaged in offshore oil exploration may not be keen to be parties to an international regime which will require them, or the operators authorised by them, to be in a position to foot the bill for any damages arising from such offshore oil spills. one further hurdle faced along the way is also the lack of involvement from the key players responsible for causing any offshore oil spill171 in finding a solution. the conclusions that one draws from the above discussion are that i) there is an urgent need for an international civil liability regime for oil pollution damages arising from offshore activities—especially with more developing countries engaging in oil exploration and with lax regulatory mechanism in place; 168 soyer (n 17) at 74. 169 gaskell (n 109) 85. 170 ibid, 86. 171 there was little public interest in developing pollution prevention and compensation regimes for vessel-source oil pollution damage prior to the major pollution incidents. the author also notes that strong lobbying from the shipping industry to a certain extent delayed any development in this regard. see tsimplis (n 9). likewise, it can be said that there is very little interest in developing a civil liability regime arising from offshore oil pollution damage, as there is very little interest to engage from the industry. offshore oil pollution damage 108 ii) the existing international regimes on marine oil pollution may not provide the answers/solutions to the problem at hand, as they are primarily designed for vessel-source marine oil pollution and not for oil pollution arising from offshore facilities (floating and fixed platforms); iii) the clc, although strongly premised on compulsory insurance, may not be fit for the purpose as it is more geared towards vesselsource oil pollution and a mere extension of the terms to include offshore oil pollution may not be workable; iv) the law of the sea convention, although containing provisions on state responsibility, cannot be modified to create a regime for offshore oil spill damages; and v) that solutions, if any, are to be found in the existing legal framework, i.e., the domestic legislation of the us, namely the oil pollution act 1990. regional agreements designed to address the issue of oil pollution damage arising from offshore operations do not have the characteristics to be extended beyond their geographical remit, although some features from the barcelona convention and opol may provide useful/credible inputs into any working draft. it is true that there had been a number of criticisms about the opa 1990 being inadequate172 to meet all the requirements while dealing with the civil liability claims arising from the deepwater horizon incident. but nevertheless claims were processed in record time under the opa and other domestic legislation in comparison to the suffering that has to be endured by thousands of innocent citizens from the ogoniland oil spill disasters in nigeria. one is encouraged to say that the way forward could still lie with the opa 1990, which presents a template at the domestic level to process civil liability claims for both vessel-source and non-vessel-source oil pollution damages. this can be used as a model to develop a uniform international regime to work alongside other civil liability regimes like the clc, any regional agreements, and the opol agreement. 172 see murchison (n 12), where the author raises questions about the adequacy of existing federal law provisions including the opa 1990 that govern liability for oil spills in the us waters. see also faure, jing and hui (n 4), where the authors opine that the deepwater horizon catastrophe triggered an intensive reexamination of the then existing regulatory and liability schemes for offshore oil and gas activities in the us, implying that there were gaps in the civil liability regime. the denning law journal 149 denning law journal 2019 vol 31 pp 149-164 non-apology in the age of apology aliza gail organick* * weihofen professor of law, university of new mexico school of law. 1 william faulkner, requiem for a nun (first published 1950, vintage books 2011) 73. 2 united nations department of economic and social affairs, indigenous peoples (united nations, 2016) <https://www.un.org/development/desa/indigenouspeoples/ declaration-on-the-rights-of-indigenous-peoples.html> accessed 5 august 2019. 3 i use the term settler nations to describe the colonial occupations of indigenous homelands by those who came with intent to remain. ‘the past is never dead. it’s not even past’.1 introduction after more than two decades winding its way through a variety of united nations (un) mechanisms, in september 2007 the world’s indigenous peoples welcomed the news that the un declaration on the rights of indigenous peoples (hereinafter the declaration) was at last approved by the vast majority of nation-states.2 the four settler3 states that opposed the declaration initially (the united states, canada, australia and new zealand) have each in turn voiced their ultimate approval of the declaration and have issued statements in support to their indigenous citizens. in spite of the fact that these statements expressed a measure of regret for past wrongs committed, not one of those endorsements embodied a formal apology. now that the declaration has entered its eleventh year, many continue to question to what extent these endorsements have meaningfully advanced reconciliation for indigenous peoples and whether these endorsements were authentic in their stated desire to do more than just acknowledge the aspirations contained in the declaration. this comment will examine the framework for political apologies in general and then consider the endorsements of the declaration by the united states, canada, australia and new zealand in light of contemporary apology theory. the article will then examine affirmative actions taken by those states following their endorsements in order to advance the claims of indigenous peoples and look at whether these actions have fallen short in providing meaningful redress for centuries of past wrongs. https://www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html https://www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html 150 non-apology in the age of apology necessary elements of apology the interpersonal apology apologies occur in many contexts from interpersonal relationships to international relations. regardless of the context, there is consensus that in order for an apology to be effective, there are several elements that must be met to achieve the desired outcome.4 researchers posit that the ‘best’ apologies include: (1) an expression of regret; (2) an explanation of what went wrong; (3) an acknowledgement of responsibility; (4) a declaration of repentance; (5) an offer of repair; and (6) a request for forgiveness.5 researchers are quick to point out that not all elements of any apology have equal weight.6 the most significant component of an apology is the taking of responsibility, with the offer of repair being second in importance.7 the request for forgiveness8 was ranked as the least valuable component.9 studies have also shown that apologies that occur long after the wrong was incurred risk being seen as disingenuous or made for political gain rather than from a place of moral good.10 most of us know a good apology when we hear it. we also know when an apology seems qualified in a way that undermines its effectiveness. according to psychologist dr harriet lerner, a ‘true’ apology must fulfil nine essential rules.11 4 roy lewicki and others, ‘an exploration of the structure of effective apologies’ (2016) 9(2) negotiation and conflict management research 177, 178–179. 5 jeff grabmeier, ‘the 6 elements of an effective apology, according to science’ (the ohio state university, 12 april 2018) <https://news.osu.edu/the-6-elements-of-aneffective-apology-according-to-science/> accessed 19 november 2018. 6 ibid. 7 ibid. 8 ibid. 9 ibid. 10 elizabeth hopper, ‘what makes a political apology seem sincere?’ (greater good magazine, 2 august 2017) <https://greatergood.berkeley.edu/article/item/what_makes_a_ political_apology_seem_sincere> accessed 24 april 2019. 11 harriet lerner phd, ‘the 9 rules for true apologies’ (psychology today, 14 september 2014) <https://www.psychologytoday.com/us/blog/the-dance-connection/ 201409/the-9-rules-true-apologies> accessed 7 november 2018. the nine rules for a true apology according to lerner: (1) does not include the word ‘but’; (2) keeps the focus on actions of the person apologising; (3) does not overshadow the feelings of the hurt party with the hurt or remorse of the person making the apology; (4) does not ‘get caught up’ in blame; (5) must have corrective action; (6) avoids repeating harmful actions; (7) should https://news.osu.edu/the-6-elements-of-an-effective-apology-according-to-science/ https://news.osu.edu/the-6-elements-of-an-effective-apology-according-to-science/ https://greatergood.berkeley.edu/article/item/what_makes_a_political_apology_seem_sincere https://greatergood.berkeley.edu/article/item/what_makes_a_political_apology_seem_sincere https://www.psychologytoday.com/us/blog/the-dance-connection/201409/the-9-rules-true-apologies https://www.psychologytoday.com/us/blog/the-dance-connection/201409/the-9-rules-true-apologies the denning law journal 151 in the context of this article, three of those rules in particular have significance. dr lerner asserts that a true apology must be followed up with ‘corrective actions, requires meaningful effort not to repeat past wrongs, and recognises when the apology is not enough’.12 the rules outlined by dr lerner are general and meant to understand apologies in their simplest form. however, these rules can be used to provide a straightforward lens though which we can analyse all apologies. the political apology although the political apology has a long history, it has become more common since 1945 and the end of the second world war.13 the institute for the study of human rights (the institute) has compiled a list of political apologies, beginning in 1077 with the apology of the holy roman emperor henry iv to pope gregory for ‘church-state conflicts’ and ends in 2016 with an apology made by isis to israel for firing on an israeli military unit in the golan heights.14 according to the institute, after the apology made by the holy roman emperor to the pope, it took another 340 years before the next political apology, made by way of a proclamation from queen margaret i of denmark.15 this apology was made to the peasantry for ‘the great burden and much toil’16 caused by the malfeasance of her clerks and herself in 1403. in the period from 1403 to 1911, only 12 recorded political apologies are listed in the study.17 from 1910 to 2016, according to the institute, roughly 640 political apologies were listed.18 not silence the other person; (8) should not make the person making the person apologising ‘feel better at the risk of making the hurt party feel worse’; and (9) recognises that serious harm may take time to restore trust. 12 ibid. 13 ruti teitel, ‘the transitional apology’ in elazr barkan and alexander karn (eds), taking wrongs seriously, apologies and reconciliation (stanford university press 2006) 3, 101. 14 institute for the study of human rights, columbia university 2016. the list compiled by the institute describes the selection criteria for inclusion on the list as ‘any and all apologies that involve state, nations, or major political groups and actors …’ and did include apologies made by individuals for ‘alleged’ criminal or personal failings. see institute for the study of human rights, ‘political apologies archive’ (institute for the study of human rights, 2016) <http://www.humanrightscolumbia.org/ahda/politicalapologies> accessed 5 august 2019. 15 ibid. 16 ibid. 17 ibid. 18 ibid. http://www.humanrightscolumbia.org/ahda/politicalapologies http://www.humanrightscolumbia.org/ahda/politicalapologies 152 non-apology in the age of apology while not a new phenomenon, the frequency of the political apology has increased so significantly over the past 25 years that some refer to this as the ‘age of apology’.19as the prevalence of the political apology has increased, so has literature on the topic with, perhaps not surprisingly, some confusion over terminology. the political apology has also been called the state apology, collective apology or reconciliation apology among others.20 while each term may be somewhat different in scope, they can be defined by who makes the apology.21 in his article on national apologies, eneko sanz confirms that the political apology remains somewhat more difficult to describe but ‘can be loosely considered political if they involve political issues and are delivered by an appropriate political agent’.22 additionally, the political apology can be issued both internally, from the state to its own citizens, or to groups harmed in another state.23 who makes the apology is also important. political apologies may be made by heads of state on behalf of their country and by ‘subgroups’24 of a country that have the authority to make the apology as nation-state agents.25 apologies are sometimes issued by non-state agents such as ‘civil organisations’26 or religious groups, as can be directed by states at the harmed population of another state to express collective ‘regret’.27 as with personal apologies, the political apology has necessary elements that can help us assess their legitimacy. these elements may include compensation to the wronged party, being responsive to specific requests of the community, and a commitment to changing past hurtful behaviour.28 however, as with all types of apologies these components are more than just the sum of their parts. in order to assess the political apology for validity, researchers also consider the 19 eneko sanz, ‘national apologies: mapping the complexity of validity’ (the centre for peace and conflict studies, april 2012) <http://www.centrepeaceconflictstudies.org/ publications/browse/national-apologies-mapping-the-complexities-of-validity/> accessed 10 june 2019, pp 3, 7. 20 ibid., 1, 14. the author also identifies the community-focused apology, the many-tomany apology, the historical apology and the public apology. 21 ibid., 1, 15. 22 ibid., 15. ibid., 16. 23 ibid. 24 ibid., 15–17. 25 ibid. 26 ibid. 27 ibid., 23. 28 ibid., 26, 27. http://www.centrepeaceconflictstudies.org/publications/browse/national-apologies-mapping-the-complexities-of-validity/ http://www.centrepeaceconflictstudies.org/publications/browse/national-apologies-mapping-the-complexities-of-validity/ the denning law journal 153 ‘interconnectedness’29 of these elements as a way to determine whether it will be deemed a ‘true apology’30 and perceived as an apology that will serve to move the dialogue with affected groups towards reconciliation. other theorists contend that given the stakes of the political apology, critical elements must also include ‘an official written record’31 that provides parties an opportunity to assess the value and subsequent attempts to cure made by the state, as well as a measure of ceremony and ‘concrete reparation’.32 in their article, the status of state apologies, authors gibney and roxstrom suggest criteria that the apology should be made public, have some element of ceremony attached, should be clear and concise, and state what the apology is for.33 the authors assert that justice and consistency are also important elements.34 an apology that lacks these essential details and that fails to be responsive to the community voice is defined as a non-apology or quasi-apology and is, therefore, deemed ‘fundamentally flawed’.35 it is not surprising, therefore, that the political apology is viewed as complex and thus not taken lightly by those states that issue them.36 since the repercussions of political apologies can be so fraught with delicate social and political considerations, the question remains – why do states feel compelled to make them? one theorist suggests that states apologise for three reasons: (1) in order to underscore and validate a change in its own past beliefs and harmful actions stemming from those beliefs; (2) as consideration for using the history of past actions to understand modern disadvantages to groups which it has harmed; and (3) to advance its obligations and define the boundaries of ‘membership in the national community’.37 others suggest that the principles underlying the apology are to repair past relationships and to lay the groundwork for future stabilisation and transitional process.38 while ostensibly a step forward 29 ibid., 11. 30 ibid. 31 matt james, ‘wrestling with the past: apologies, quasi-apologies, and non-apologies in canada’ in mark gibney and others (eds), the age of apology: facing up to the past (university of pennsylvania press 2008) 137, 138. 32 ibid. 33 mark gibney and eric roxstrom, ‘the status of state apologies’ (2001) 23(4) hrq 911, 927–929, 931, 932–933. 34 ibid., 931. the authors suggest that while financial support may be helpful, it is often much less than what the country spent to perpetrate the wrong in the first place. 35 sanz (n 20) 11. 36 ibid. 37 melissa nobles, the politics of official apologies (cambridge university press 2008) 71, 72. 38 sanz (n 20) 10. 154 non-apology in the age of apology in relationship building, viewing the political apology from this perspective is troubling because the political apology emerges from the dominant party and does not consider or address what is important or valuable to the needs of marginalised parties. this, in and of itself, underscores the historic and ongoing imbalance of power between the state and its minority and indigenous populations.39 in her book, the politics of official apologies, melissa nobles asserts that official apologies serve the function of assessing past acts though a modern lens.40 according to nobles, when coupled with new facts and societal understandings, political apologies can become the cornerstones for moving forward in new relationships.41 it is worth noting here that the political apology has become the preferred method chosen by the west to acknowledge past wrongs as opposed to the use of truth commissions.42 it is not altogether clear why some states choose the apology over truth and reconciliation.43 it may be that where truth and reconciliation has been tried it has not proven to be successful overall in transforming relationships between the state and its citizens in achieving the measure of reconciliation hoped for.44 regardless of which process has been employed, there has been a general acknowledgement that states must deal with these past wrongs in order to find a way forward to some measure of societal healing.45 how a state chooses to move forward may ultimately prove to be more important than which type of process is chosen. as professor corntassel notes, a process that chooses to look only at the wrongs perpetrated and not the underlying relationships that lead to those wrongs, also known as affirmative repair, is inherently misguided by its very nature.46 transformative repair, on the other hand, because its process looks more deeply at the root of the relationship between parties in an effort to transform those relationships, stands a better chance of repairing those historical wrongs.47 corntassel asserts that a critical component must include ‘a shared’48 vision of the future and ‘strategies for moving forward 39 jeff corntassel and cindy holder, ‘who’s sorry now? government apologies, truth commissions, and indigenous self-determination in australia, canada, guatemala, and peru’ (2008) 9(4) hum rights rev 465, 466. 40 nobles, (n 38) 72. 41 corntassel and holder (n 40) 466. 42 ibid. 43 ibid., 466–467. 44 ibid., 466–468. 45 ibid. 46 ibid. 47 ibid. 48 ibid., 469. the denning law journal 155 collectively’49 as a ‘means to decolonise’ both past and present relationships.50 however, he also contends that even with all of the above, tangible reconciliation may be still unattainable if states are unwilling to ‘go beyond ideals of national unity and modernisation’.51 many nations have issued apology like statements to their indigenous populations since the declaration was approved in 2007.52 however, the usefulness of these statements in light of general inaction on the part of states to implement the declaration remains in question. indigenous peoples continue to face significant hurdles in achieving the human rights expressed in the declaration. this is in spite of state endorsement of the aspirations and goals expressed following the declaration’s adoption and whether or not an apology was ever issued. even if statements of support do rise to the level of a true apology, the question remains whether apologies in this context work as they are meant to as the fundamental key to heal, build and maintain key relationships where the history of oppression has been deep and longstanding. apology or equivocation? australia in april 2009, 18 months after the declaration was adopted, the government of australia, under new leadership, announced that it had changed its opposition and formally endorsed the declaration.53 in affirming the aspirations of the declaration, the australian government recognised the ‘flawed policies’54 of the past and considered the adoption of the declaration as a ‘re-setting’55 of the ‘relationship between indigenous and non-indigenous australians’.56 in spite of this endorsement, the statement did not contain an apology to aboriginal australians for australia’s past actions. 49 ibid. 50 ibid. 51 ibid. 52 sheryl lightfoot, ‘settler-state apologies to indigenous peoples: a normative framework and comparative assessment’ (2015) 2(1) university of minnesota press 15. 53 emma rogers, ‘australia adopts un indigenous declaration’ (abc news, 2009) < h t t p s : // w w w w. a b c . n e t . a u / n e w s / 2 0 0 9 0 4 0 3 /a u s t a d o p t s u n i n d i g e n o u s declaration/1640444> accessed 1 december 2018. 54 ibid. 55 ibid. 56 ibid. ht tps: //wwww.abc.net.au/news/2009-04-03/aust-adopts-un-indigenousdeclaration/1640444 ht tps: //wwww.abc.net.au/news/2009-04-03/aust-adopts-un-indigenousdeclaration/1640444 156 non-apology in the age of apology the statement made in support of the declaration was in stark contrast to the apology made 13 months earlier by prime minister kevin rudd for the mistreatment of children and families of the stolen generation. in that apology, pm rudd apologised to the stolen generation by acknowledging and reflecting on past mistreatment and made clear expressions of regret for the pain and suffering caused by policies and actions of the australian government.57 this apology does have its own shortcomings and was critiqued as falling short by melissa cuthbert because it was couched in general terms and past wrongs while ignoring continuing and ongoing oppression of australia’s indigenous population.58 despite the australian government showing in the lost generations apology that it understood at least some of the elements necessary to craft a true apology, its endorsement of the declaration falls flat in that it contains none of the fundamental elements required. the subsequent result of the non-apology by the australian government is a lack of promised change in the relationship and a failure to re-set the relationship as promised. one example is evidenced by the recommendation and proposal of the expert panel on recognizing aboriginal rights and torres strait islander peoples. their report recommended that a prohibition on racial discrimination be housed in australia’s constitution.59 this proposal was ultimately opposed by both conservatives and a number of indigenous leaders for different reasons.60 conservatives opposed ‘entrenching rights in the constitution’61 and indigenous leaders were not convinced that language would by itself present any real benefit to indigenous peoples.62 given that the australian endorsement of the declaration was not an apology in the first instance, it is also not surprising that the report of the special rapporteur on the rights of indigenous peoples, victoria tauli-corpuz, published 57 prime minister kevin rudd mp, ‘apology to australia’s indigenous peoples’ (australian government, february 2008) <https://www.australia.gov.au/about-australia/ our-country/our-people/apology-to-australias-indigenous-peoples> accessed 1 december 2018. 58 denise cuthbert, ‘forced child removal and the politics of national apologies in australia’ (2013) 37 am indian q 178, 184. 59 commonwealth of australia, ‘recognising aboriginal and torres strait islander peoples in the constitution: report of the expert panel’ (commonwealth of australia, january 2012) <https://www.pmc.gov.au/sites/default/files/publications/recognisingaboriginal-and-torres-strait-islander-peoples-in-the-constitution-report-of-the-expertpanel_0.pdf> accessed 1 december 2018. 60 darryl cronin, ‘trapped by history: democracy, human rights and justice for indigenous people in australia’ (2017) 23(2) aust j of hum rights 220, 234. 61 ibid., 234. 62 ibid., 235. https://www.australia.gov.au/about-australia/our-country/our-people/apology-to-australias-indigenous-peoples https://www.australia.gov.au/about-australia/our-country/our-people/apology-to-australias-indigenous-peoples https://www.pmc.gov.au/sites/default/files/publications/recognising-aboriginal-and-torres-strait-islander-peoples-in-the-constitution-report-of-the-expert-panel_0.pdf https://www.pmc.gov.au/sites/default/files/publications/recognising-aboriginal-and-torres-strait-islander-peoples-in-the-constitution-report-of-the-expert-panel_0.pdf https://www.pmc.gov.au/sites/default/files/publications/recognising-aboriginal-and-torres-strait-islander-peoples-in-the-constitution-report-of-the-expert-panel_0.pdf the denning law journal 157 in august 2017, found that existing policies of the government of australia did not respect indigenous peoples right to self-determination and ‘failed to deliver’63 in such critical areas as health, education, housing, incarceration and violence against women.64 while tauli-corpuz’ report did acknowledge that the government had implemented a number of policies addressing indigenous matters, her criticisms focused on the failure of the government to meaningfully ‘respect the rights to self-determination’65 and the lack of ‘full and effective’66 participation of aboriginal and torres strait islanders in that decision making.67 as such, ms tauli-corpuz called for a ‘comprehensive revision’68 of those policies affecting aboriginal australians and underlined the need to make it a ‘national priority’.69 the report made 31 specific recommendations for change to australian government policies ranging from changes to the institutional framework of existing policies to investing in community-led child-family programs in order to minimise the removal of aboriginal children from their families and communities.70 the depth and breadth of these recommendations clearly illustrate how far the australian government has yet to go in order to repair relationships with its indigenous citizens. they also emphasise how the non-apology contained in the original endorsement failed to create the necessary framework required to begin implementing the declaration. canada on 12 november 2010, the canadian government issued a statement supporting the declaration but was quick to assert that the declaration ‘does not reflect customary international law nor change canadian laws’.71 while recognising its 63 united nations human rights office of the commissioner, ‘report of the special rapporteur on the rights of indigenous peoples on her visit to australia’ (ohchr, 8 august 2017) <http://ap.ohchr.org/documents/dpage_e.aspx?si=a/hrc/36/46/add.2, para 104. 64 ibid. 65 ibid., para 36. 66 ibid. 67 ibid. 68 ibid., 104. 69 ibid. 70 ibid., paras 107 (a)–(f), 108 (a)–(g), 109 (a)–(e), 110 (a)–(c), 111 (a)–(c), 112 (a)–(b), 113, (a)–(m), 114, (a)–(c), 115, 116, 117, 118, (a)–(c). 71 cultural survival, ‘canada endorses the un declaration on the rights of indigenous peoples’ (cultural survival, november 2010) <https://www.culturalsurvival.org/news/ canada-endorses-un-declaration-rights-indigenous-peoples> accessed 10 june 2019. http://ap.ohchr.org/documents/dpage_e.aspx?si=a/hrc/36/46/add.2 <https://www.culturalsurvival.org/news/canada-endorses-un-declaration-rights-indigenous-peoples <https://www.culturalsurvival.org/news/canada-endorses-un-declaration-rights-indigenous-peoples 158 non-apology in the age of apology aspirational language, canada’s statement of support for the declaration did not make any effort to acknowledge present or historical wrongs to the indigenous peoples of canada. instead, their statement focused on the ‘exemplary progress’72 in the relationship with the indigenous nations of canada and their leadership in protecting indigenous rights.73 although not altogether surprising, given the harper government’s active lobbying against the declaration in the years just prior to its adoption, their statement made no declaration of regret or apology.74 not only did the harper government not apologise, they have been criticised for interpreting the declaration so narrowly as to undermine its ability to make even the most basic changes in the laws or policies governing indigenous rights in canada in the years following the endorsement.75 in a joint statement released immediately following canada’s statement of endorsement, more than 25 organisations supporting indigenous rights in canada, voiced strong criticism of the government’s position. citing specifically that canada’s position that the declaration ‘does not reflect customary international76law’, and as being ‘manifestly untenable’77 pursuant to the position of the un special rapporteur on the rights of indigenous people.78 the joint statement was pointed in its critique that the declaration was merely ‘aspirational’79 and argued that it belied common sense to assert that canada’s obligation to support the declaration existed only as long as it comported with existing ‘national law and policies’.80 the statement further called on the government to make tangible commitments to build on the existing relationship with indigenous nations based on ‘partnership, equality and justice’.81 it was not until may 2016, nearly 10 years after the adoption of the declaration, that canada finally dropped its objector status and committed to implementing the 72 ibid. 73 ibid. 74 sheryl lightfoot, ‘on the un declaration on the rights of indigenous peoples’ (faculty of arts ubc, june 2017) <https://www.arts.ubs,ca/sheryl-lightfoot-on-the– un-declarations-on-the-rights-of indigenous-peoples/> accessed 22 april 2019. 75 ibid. 76 cultural survival, ‘joint statement in response to canada’s endorsement of the un declaration on the rights of indigenous peoples’ (cultural survival, november 2010) <https://www.culturalsurvival.org/news/joint-statement-response-canadas-endorsementun-declaration-rights-indigenous-peoples> accessed 1 december 2018. 77 ibid. 78 ibid. 79 ibid. 80 ibid. 81 ibid. https://www.arts.ubs,ca/sheryl-lightfoot-on-the%e2%80%93un-declarations-on-the-rights-of%20indigenous-peoples/ https://www.arts.ubs,ca/sheryl-lightfoot-on-the%e2%80%93un-declarations-on-the-rights-of%20indigenous-peoples/ https://www.culturalsurvival.org/news/joint-statement-response-canadas-endorsement-un-declaration-rights-indigenous-peoples https://www.culturalsurvival.org/news/joint-statement-response-canadas-endorsement-un-declaration-rights-indigenous-peoples the denning law journal 159 declaration within the framework of the canadian constitution.82 the government then began the process of meeting with first nations, inuit and metis peoples in order to identify priorities for moving forward.83 nevertheless, criticism of the implementation process continues over the interpretation of specific language contained in the declaration, with it being described as ‘unworkable’84, and a ‘political distraction’85 by members of the government.86 regardless of the political pushback, indigenous affairs minister, carolyn bennett, affirmed canada’s intention to implement the declaration as a full supporter ‘without qualification’.87 regardless of canada’s official change in position, the uncertainty over the impact of implementation of the declaration on existing and future canadian legislation remains an unanswered and ongoing question. new zealand in april 2010, two and a half years after the declaration was approved, new zealand issued its endorsement.88 the announcement was made by dr pita sharples at the annual meeting of the un forum on indigenous issues and 82 tim fontaine, ‘canada removing objector status to un declaration on the rights of indigenous peoples’ (cbc news, 8 may 2016) <https://www.cbc.ca/news/indigenous/ canada-position-un-declaration-indigenous-peoples-1.3572777> accessed 6 august 2019. 83 brandi morin, ‘where does canada sit 10 years after the un declaration on the rights of indigenous peoples?’ (cbc news, 13 september 2017) <https://cbc.ca/news/ inidigenous/where-does-canada-sit-10-years-after-undrip-1.4288480> accessed 10 june 2019. 84 aptn national news, ‘justice minister jody-wilson-raybould says adopting the undrip into canadian law “unworkable”’ (aptn national news, 12 july 2016) <https://aptnnews.ca/2016/07/12/justice-minister-jody-wilson-raybould-says-adoptingundrip-into-canadian-law-unworkable/> accessed 16 january 2019. 85 ibid. 86 ibid. 87 tim fontaine, ‘senator murray sinclair on canada’s change of stance on united nations indigenous rights declaration’ (cbc news, 10 may 2016) <https://www.cbc.ca/ news/indigenous/canada-adopting-implementing-un-rights-declaration-1.3575272> accessed 1 december 2018. 88 new zealand parliament, ‘ministerial statements – un declaration on the rights of indigenous peoples – government support’ (parliament.nz, 20 april 2010) <https://www. parliament.nz/en/pb/hansard-debates/rhr/document/49hansd_20100420_00000071/ ministerial-statements-un-declaration-on-the-rights-of-indigenous-peoples> accessed 6 august 2019. https://www.cbc.ca/news/indigenous/canada-position-un-declaration-indigenous-peoples-1.3572777 https://www.cbc.ca/news/indigenous/canada-position-un-declaration-indigenous-peoples-1.3572777 https://cbc.ca/news/inidigenous/where-does-canada-sit-10-years-after-undrip-1.4288480 https://cbc.ca/news/inidigenous/where-does-canada-sit-10-years-after-undrip-1.4288480 https://aptnnews.ca/2016/07/12/justice-minister-jody-wilson-raybould-says-adoptingundrip-into-canadian-law-unworkable/ https://aptnnews.ca/2016/07/12/justice-minister-jody-wilson-raybould-says-adoptingundrip-into-canadian-law-unworkable/ https://www.cbc.ca/news/indigenous/canada-adopting-implementing-un-rights-declaration-1.3575272 https://www.cbc.ca/news/indigenous/canada-adopting-implementing-un-rights-declaration-1.3575272 <https://www.parliament.nz/en/pb/hansard-debates/rhr/document/49hansd_20100420_00000071/ministerial-statements-un-declaration-on-the-rights-of-indigenous-peoples <https://www.parliament.nz/en/pb/hansard-debates/rhr/document/49hansd_20100420_00000071/ministerial-statements-un-declaration-on-the-rights-of-indigenous-peoples <https://www.parliament.nz/en/pb/hansard-debates/rhr/document/49hansd_20100420_00000071/ministerial-statements-un-declaration-on-the-rights-of-indigenous-peoples 160 non-apology in the age of apology expressly conveyed that new zealand had changed its original position on the declaration and affirmed those rights and aspirations declared therein.89 in his statement, minister sharples referred to the historic relationship between maori peoples and the crown as defined in the treaty of waitangi, recognised the maori as the original inhabitants of new zealand, that their customs and traditions should be reflected in the laws of new zealand, and that the maori suffered historic injustice with respect to land and settlements.90 however, the address also emphasised that further settlements needed to be fair to ‘everyone’ and redress for past wrongs would be constrained by what the country could afford to pay.91 assessing the minister’s statement through the lens of political apology theory, the statement falls short of the necessary elements in what is defined as a true apology as it lacks the acknowledgement of responsibility. nor does the statement of support for the declaration make a clear expression of regret. it is not surprising, therefore, that there has been criticism of new zealand’s conditional and aspirational acceptance of the declaration.92 in july 2018, mr sharples, in a reflective essay, himself asks the question, ‘was it worth it?’.93 he speaks of the lip service that is given to the need for change for the maori and underscores the need for the maori people to step up and ‘take control of our lives and our destiny …’94 in order to ensure the survival of his people.95 in spite of sharple’s critique, the human rights council working group on the universal period review in november 2013 issued an overall positive review of new zealand’s continued dialogue on broad human rights issues.96 however, it recommended ongoing dialogue with the maori on such important issues as strengthening historical land claims, improving educational priorities and addressing institutional racism.97 it is interesting that of the four endorsements of 89 ibid. 90 ibid. 91 ibid. 92 tracey watkins, ‘nz does a u-turn on rights charter’ (stuff.co.nz, 24 april 2010) <https://stuffco.nz.national /politics/3599153/ nz-does-u-tur n-on-rights/char ter> accessed 5 november 2018. 93 pita sharples, ‘was it worth it?’ (the university of auckland, 16 july 2018) <https:// www.thebigq.org/2018/07/16/was-it-worth-it-pita-sharples-reflects-on-the-un-declarationof-indigenous-rights/> accessed 5 november 2018. 94 ibid., 8. 95 ibid. 96 human rights council, ‘report of the working group on the universal periodic review’ (united nations human rights office of the high commissioner, 8 november 2013) <https://undocs.org/a/hrc/wg.6/18/nzl/1> accessed 6 august 2019, paras 1–2. 97 ibid., para 4. https://stuffco.nz.national/politics/3599153/nz-does-u-turn-on-rights/charter https://www.thebigq.org/2018/07/16/was-it-worth-it-pita-sharples-reflects-on-the-un-declaration-of-indigenous-rights/ https://www.thebigq.org/2018/07/16/was-it-worth-it-pita-sharples-reflects-on-the-un-declaration-of-indigenous-rights/ https://www.thebigq.org/2018/07/16/was-it-worth-it-pita-sharples-reflects-on-the-un-declaration-of-indigenous-rights/ https://undocs.org/a/hrc/wg.6/18/nzl/1 the denning law journal 161 the declaration by the formerly opposing states, mr sharple’s statement came the closest to a formal apology. nevertheless, the extent that apologies to indigenous peoples have made any meaningful difference in the quality of their lives in the decade since its approval remains contested. united states on 16 december 2016, the united states, the last of the four states initially opposed to the declaration, finally announced its support for it at a white house gathering that included members of the then 565 federally recognised indian tribes.98 president obama affirmed the aspirations of the declaration and recognised the need to respect the cultures and institutions of native peoples and underscored the need to match words with actions.99 immediately following the announcement by the president, the office of the special representative for global intergovernmental affairs released a set of initiatives outlining the united states’ commitment to address a number of issues facing native americans.100 importantly, prior to its change of position on the declaration, us agencies conducted a series of consultations with tribal leaders, as well as providing an open comment period that solicited over 3,000 written comments.101 the result was a focus on five specific areas in line with those rights encompassed in the declaration. these included increased recognition and strengthening of the government-to-government relationship between the us government and tribal nations, the protection of tribal lands, the environment and access to traditional lands and natural resources in which tribes have an interest. the list also included addressing the health needs and gaps in health care delivery to tribal people, promoting economic development and protection of native american cultures.102 98 valerie richardson, ‘obama adopts u.n. manifesto on rights of indigenous peoples’ (washington post, 16 december 2010) <https://www.washingtontimes.com/news/2010/ dec/16/obama-adopts-un-manifesto-on-rights-of-indigenous-/> accessed 10 june 2019. the number of federally recognised native american tribes has increased to 573 since the adoption of the undrip by the united states. 99 ibid. 100 office of the special representative for global intergovernmental affairs, ‘announcement of u.s. support for the united nations declaration on the rights of indigenous peoples’ (u.s. department of state, 12 january 2011) <https://2009-2017.state. gov/s/srgia/154553.htm> accessed 10 june 2019, pp. 1–15. 101 ibid., 2. 102 ibid., 1–15. https://www.washingtontimes.com/news/2010/dec/16/obama-adopts-un-manifesto-on-rights-of-indigenous-/ https://www.washingtontimes.com/news/2010/dec/16/obama-adopts-un-manifesto-on-rights-of-indigenous-/ https://2009-2017.state.gov/s/srgia/154553.htm https://2009-2017.state.gov/s/srgia/154553.htm 162 non-apology in the age of apology these initiatives, however, were not new policies nor were any legislative changes made as a result of support for the declaration. they were, in fact, based on nixon era policies put in place to encourage greater tribal autonomy and decision making.103 nevertheless, the statement of initiatives in conjunction with calls to further support self-determination, the commitment to engage in collaborative tribal and government agency policy development, along with the acknowledgement that tribal people have been significantly marginalised by historic policies and actions of the us government was significant. president obama’s endorsement of the declaration, while welcomed by tribal nations and well-meaning was not an apology.104 it was simply a statement recognising the aspirations contained in the declaration.105 the formal apology to native peoples was made almost two years earlier, on 6 january 2009, without fanfare, hidden on page 45 of a department of defense appropriations bill in the first session of the 111th congress.106 the apology itself (in full below) clearly ticks some of the boxes of an effective political apology as discussed above, but leaves out other important components and fails to deliver on others. for instance, is it an apology if no one hears it, being buried as it was in the appropriations bill? additionally, where is the ceremony or public expression of regret? where is the explanation of why the us government acted the way it did in relation to the individuals and tribal nations that it harmed? the non-apology issued by the us ultimately has had very little impact on the lives and well-being of tribal people. sec. 8113. a. acknowledgement and apology. the united states, acting through congress 1. recognises the special legal and political relationship indian tribes have with the united states and the solemn covenant with the land we share; 103 on the occasion marking the 45th anniversary of president richard nixon’s message to congress on indian affairs which is seen as marking the beginning of the selfdetermination movement. see ladonna harris, ‘institutionalizing the native american self-determination movement’ (indian country today, 8 july 2015) <https://newsmaven. io/indiancountrytoday/archive/institutionalizing-the-native-american-self-determinationmovement-dkqeqcmxpeuugbv-c2zl_a/> accessed 10 june 2019, pp 1–13. 104 ginny underwood, ‘obama endorses us endorsement of undrip’ (youtube, 16 december 2010) <https://www.youtube.com/watch?v=ymv2xiqawyc> accessed 22 april 2019. 105 ibid. 106 congress.gov, ‘h.r. 3326 – department of defense appropriation act, 2010’ (congress.gov, 2009–2010) <https://www.congress.gov/bill/111th-congress/housebill/3326?s=1&r=12> accessed 10 june 2019. https://newsmaven.io/indiancountrytoday/archive/institutionalizing-the-native-american-self-determination-movement-dkqeqcmxpeuugbv-c2zl_a/ https://newsmaven.io/indiancountrytoday/archive/institutionalizing-the-native-american-self-determination-movement-dkqeqcmxpeuugbv-c2zl_a/ https://newsmaven.io/indiancountrytoday/archive/institutionalizing-the-native-american-self-determination-movement-dkqeqcmxpeuugbv-c2zl_a/ https://www.youtube.com/watch?v=ymv2xiqawyc https://www.congress.gov/bill/111th-congress/house-bill/3326?s=1&r=12 https://www.congress.gov/bill/111th-congress/house-bill/3326?s=1&r=12 the denning law journal 163 2. commends and honours native peoples for the thousands of years that they have stewarded and protected this land; 3. recognises that there have been years of official depredations, ill-conceived policies, and the breaking of covenants by the federal government regarding indian tribes; 4. apologises on behalf of the people of the united states to all native peoples for the many instances of violence, maltreatment, and neglect inflicted on native peoples by citizens of the united states; 5. expresses its regret for the ramifications of former wrongs and its commitment to build on the positive relationships of the past and present to move towards a brighter future where all the people of this land live reconciled as brothers and sisters, and harmoniously steward and protect this land together; 6. urges the president to acknowledge the wrongs of the united states against indian tribes in the history of the united states in order to bring healing to this land; and 7. commends the state governments that have begun reconciliation efforts with recognised indian tribes located in their boundaries and encourages all state governments similarly to work towards reconciling relationships with indian tribes within their boundaries. b. disclaimer. nothing in this section 1. authorises or supports any claim against the united states; or 2. serves as a settlement of any claim against the united states.107 the disclaimers tacked on to this hidden apology also apply to president obama’s endorsement of the declaration. the bill specifically states that the apology does not support any claim against the united states, a provision which clearly undercuts any real desire to pave a path forward. similarly, the us announcement documenting its support for the declaration specifically asserts that it is neither ‘legally binding or a statement of current international law’.108 furthermore, the statement acknowledges that consultation with tribes over matters affecting tribal interests is important, but agreement with tribes on those interests was not required for final decision making.109 this, of course, gives with 107 ibid. 108 office of the special representative for global intergovernmental affairs (n 101) 1–15. 109 cultural survival, ‘victory: u.s. endorses the un declaration on the rights of indigenous peoples’ (cultural survival, 2019) <www.culturalsurvival.org/news/victoryus-endorses-un-declaration-rights-indigenous-peoples> accessed 27 november 2018. www.culturalsurvival.org/news/victoryus-endorses-un-declaration-rights-indigenous-peoples www.culturalsurvival.org/news/victoryus-endorses-un-declaration-rights-indigenous-peoples 164 non-apology in the age of apology the one hand and takes away, or at least preserves the status quo, with the other. given that the status quo is replete with historical wrongs that have disadvantaged native peoples for generations it is not surprising that the effect of the statement of support for the declaration on the part of the united states has been ineffectual at best. conclusion apologies, whether interpersonal or at the state level, are important. how to convey true regret for past actions is vital for all relationships. equally important is what happens after an apology is made. it makes sense, therefore, that researchers have devoted attention to what makes a true political apology, to determine what essential details that they should contain, and what should be left out. if we are, as the literature contends, in the age of apology, states must undertake to take their apologies seriously as a critical step towards healing the wounds inflicted in their name. the declaration was an attempt to define a set of individual and collective rights of indigenous peoples and nations around the globe. even though many human rights were recognised after the second world war, it took another half a century for the rights of indigenous peoples to have merit in their own right. it is telling indeed that only four nations objected to the rights contained in the declaration and refused to recognise those rights. it is significant, as well, that all four nations elected to ignore established political apology considerations when they finally made statements of support recognising those rights. not one of the four made a true apology in their endorsement of the declaration. this has significance as we assess what progress has been made in the well-being of indigenous peoples and indigenous nations and as we embark on the second decade of this historic international instrument. even as indigenous peoples are encouraged to use the declaration to advocate for those rights contained in it, states must themselves step up to implement the protections and reforms enshrined in the declaration. the endorsements by australia, canada, new zealand and the united states, following the adoption of the declaration were non-apologies. whether those non-apologies were intentional or not, each must develop meaningful strategies for implementing the declaration and beginning the process of making concrete legislative changes in support of their indigenous citizens. only then can those relationships begin the process of healing after centuries of past wrongs. human rights, 'arranged' marriages and nullity law: when do 'force', parental 1 denning law journal 2018 vol 30 pp 1-2 editorial introduction sarah sargent lord denning is well known for many aspects of his long and illustrious legal career. the denning law journal carries his name both in recognition, and furtherance of his legacy and contributions to law. this is reflected in the mission statement of the journal: “the aim of the journal is to provide a forum for the widest discussion of issues arising in the common law world and the commonwealth, and to embrace the wider global and international issues of contemporary concern. lord denning recognised the importance of:  developing the common law  focusing on the development of law in commonwealth jurisdictions  the need for judicial and community recognition of the urgency of reform and modernization of law  the need to preserve traditions of judicial independence, integrity, accountability and creativity  reflecting upon the interplay of law and morality  the role to be played by the state in the defence of the individual in the modern state  international and comparative law  protection and promotion of human and constitutional rights  development of constitutional and administrative law the denning law journal strives to reflect these in its publication.” this edition of the journal is particularly reflective of the values espoused by lord denning, on the importance of the role of the common law in advancing legal change to keep up with a changing world. this is  senior lecturer in law, university of buckingham. 2 noted in his quote from the case of packer v. packer [1954] p. 15 at 22:“if we never do anything which has not been done before, we shall never get anywhere. the law will stand still whilst the rest of the world goes on; and that will be bad for both.” the collection of articles provides a view into the strength of common law in both changing and maintaining the rule of law across a variety of legal areas. this edition provides a diverse and innovative discussion that together highlight the view that is proffered by lord denning. the law indeed is not standing still. there is movement in the area of property law, environmental law, the relationship of law to technology, as well as in managing and resolving issues of corruption and money laundering, and in addressing issues of discrimination in education. the denning law journal provides an important platform for the necessary discussions, introspections, and analysis of where the law has been and where it needs to go, to meet the challenges of a highly technical globalised world that is both adapting to new developments and information while it still has not resolved age-old problems of discrimination, resource allocation and universal access to fundamental human rights. the journal strives to address these issues within the context of the vision of lord denning. we are already looking forward to the 2019 edition, which will include of the winner of a post-graduate student writing competition. we encourage anyone with an interest in publication in the 2019 edition to make a submission. informal queries are always warmly welcomed. as ever, the production of this journal is the result of teamwork, and it is important to note and give thanks to the student editors, gbogboade akitoye, yousef bendahane, charley-anne gordon, wardah masood hasan and jana ward, who gave generously of their time and knowledge to help in proof reading and editing. dr james slater guided and supported the students in this very important endeavor. a thanks is also due to dr jocelynne scutt and professor john hatchard, for their efforts, and a final thanks to sandra clarke, who has joined our law school as dean of law, for her support and encouragement where the denning law journal is concerned. dr sarah sargent chief editor, denning law journal human rights, 'arranged' marriages and nullity law: when do 'force', parental 1 denning law journal 2017 vol 29 pp 1 editorial introduction james slater carol brennan as the new editors of the denning law journal, we are proud to present the 2017 edition, which continues the tradition of the university of buckingham’s law school of commissioning and publishing the very best in legal scholarship from a variety of perspectives and across a broad range of subjects. building on the precedent of the hugely successful magna carta (2015) edition in 2016, we published a special edition on ‘energy: contemporary issues in the oil and gas sector’ in 2016. in 2017 the denning law journal returns to its generalist nature, publishing a wide range of scholarship addressing, inter alia, criminal law, land law and commercial law. we would like to convey our admiration and gratitude to professor susan edwards, from whom we have inherited the editorship. her tireless dedication to the denning law journal, both as a contributor and solicitor of contributions, has been invaluable. tribute and gratitude must also be paid to our enthusiastic and hardworking student editors for their invaluable assistance with proofing and editing. we remain honoured to be uniquely permitted to use the name of our late patron, lord denning. dr james slater dr carol brennan  senior lecturer in law, university of buckingham.  senior lecturer in law, university of buckingham. 191 the denning law journal 2018 vol 30 pp 191-196 book reviews the us constitution – a very short introduction david j. bodenhamer (oxford university press 2018) pp 143 jocelynne a. scutt* * senior teaching fellow, university of buckingham. 1 david j bodenhamer, the u.s. constitution – a very short introduction (oup 2018) xix. the oxford university press began its very short introduction series in 1995 and now, two decades into the 2000s, comprises some 500 volumes translated into more than forty-five different languages, covering ‘everything from psychology and philosophy of science to american history and relativity’. the aim of the series, says oxford university press, is to provide ‘a stimulating and accessible way into a new subject’ for readers unfamiliar with the topic. david bodenhamer’s the us constitution – a very short introduction fulfils this aim, yet does far more than this and its title may imply. david bodenhamer has produced an impressive piece of scholarship. comprising eight chapters, the us constitution covers ‘the revolutionary constitution’, ‘federalism’, ‘balance of powers’, ‘property’, ‘representation’, ‘equality’, ‘rights’ and ‘security’ as well as ‘the future constitution’ in a short ‘epilogue’. included, too, is an impressive list of ‘further reading’ along with a comprehensive compendium of ‘references’. these provide a good lead-in for readers who do wish to explore further. particularly in the current climate of political turmoil and ignorance of the rule of law at the highest levels of the united states administration (and, one hesitates to say, ‘leadership’), the book and the resources contained in it are more than timely. moving back a pace for the moment, however, the us constitution is of interest to the united kingdom because the country prides itself on lacking a written constitution, whilst it is equally of interest to countries with written constitutions. for the latter, the book is of particular relevance where, as is so with australia, the country’s constitution is constructed with a direct united states’ influence. as bodenhamer notes in his preface, ‘the us constitution is the world’s oldest written constitution’ albeit ‘its impact is as recent as today’s news’,1 and this goes beyond the united states with its contemporary relevance being observed 192 book reviews elsewhere. at the same time, as he implies, no other country (written constitution or not) relies so much on, or invokes so often, the constitution as a justification for supporting or decrying not only actions of government, but the conduct of private enterprise and individuals in their everyday lives. that this document is so powerful a backstop and platform for present and future action is belied by its composition: the original united states constitution comprised seven articles and 4,400 words. nevertheless, it ‘established a framework for a national government … allocat[ing] carefully prescribed powers among its branches and between national and pre-existing state governments…’2 addressing the potential for creating new states, and ensuring a process for amendment. the latter has a contemporary relevance for the united kingdom, in the light of the havoc, disunity, upset and dilemma unleashed by the 2016 referendum on whether to remain within the european union (eu), or leave it.3 one of the most significant features of the us constitution is its dedication to the separation of powers, with judicial, executive and legislative arms of government being distinct. australia adopted this insofar as separation of the judicial arm is in issue, however adhered to the united kingdom position whereby the executive and legislature are intertwined. for americans, the united kingdom’s original lack of separation of the three arms would be confounding, and most would be astonished that the present separation of the judiciary from the legislature is so recent.4 bodenhamer’s chapter 3 ‘balance of powers’ traverses well the struggle each arm of government has in the united states to take a pre-eminent role, one arm sometimes being more apparently so, at other times another. he points out that from the outset the struggle engaged the states and the federal government, and the arms of the federal government itself, with the supreme court and the president ‘seizing opportunities to define their own constitutional powers as equal to congress’. thus, marbury v madison (1803) provided the justices ‘with an early victory … confirm[ing] the principle of judicial review’.5 however, the civil war and reconstruction brought about ‘a period of legislative dominance’, preceded by a short time of executive supremacy when president lincoln engaged in wartime actions under his exclusive direction. this then led to a period of domination by the judiciary when, in consequence of ‘weak’ presidents and the public’s dissatisfaction with a congress perceived of as corrupt and 2 ibid. 3 see further jocelynne a. scutt, ‘change the constitution? interpretation, (mis) calculation, reaction and wrongs righted’ p 121. 4 see andrew le sueur (eds), building the uk’s new supreme court: national and comparative perspectives (oup 2004). 5 ibid 37. the denning law journal 193 incompetent, the supreme court ‘filled the vacuum of power, establishing its role as the preeminent branch of the general government for the last three decades of the nineteenth century…’6 bodenhamer draws attention to the fact that the constitution is explicit in its definition of the powers of congress, yet is ‘much less exact in outlining presidential authority’. the constitution states simply that the executive power ‘shall be vested in a president of the united states of america’, but as the us constitution observes, what this vesting clause actually means is ‘left unanswered’.7 thus it is that presidents george w bush and donald trump may be seen as moving the role increasingly towards a reassertion of the ‘divine right of kings’, in both cases a disturbing development. for bodenhamer (and indeed for all americans and the global community, one might add), ‘one of the most vexing questions of power in american constitutional history’ has been whether the vesting clause gave the president ‘inherent, unilateral authority to protect the safety and well-being of the nation’.8 bodenhamer in this regard reflects upon the crisis generated by watergate and president nixon’s incumbency, with notions of an ‘imperial presidency’ and assertions of ‘absolute privilege and absolute immunity’ rejected by the supreme court in united states v nixon (1974). president nixon was not entitled to refuse access to the tapes which recorded his discussions with presidential aides h r haldeman and john erlichman.9 readers may look forward to an updated volume in light of matters surrounding the trump presidency and the current composition of the supreme court. chapter 5 ‘property’ is particularly insightful in covering the constitutional provisions, legislative and executive action, and supreme court decision-making for a country that has capitalism and private property ownership at its heart. having covered this question from the united states foundation, through the early days of railway development and earlier expansionism, bodenhamer discusses the new deal and president roosevelt’s plans for economic recovery following the 1929 crash.10 he raises a matter connecting back to the balance or separation of powers issue covered in chapter 3: president roosevelt’s plan to restructure the supreme court, consistent with article iii of the constitution. this effectively gives the president the power to gain judicial support by appointing more justices, 6 le sueur (n 4) 38. 7 le sueur (n 4) 39. 8 le sueur (n 4) 40. 9 ‘the smoking gun tape’ (watergate.info) <http://watergate.info/tag/haldeman> accessed 5 november 2018; united states v nixon 418 us 683 (1974). 10 for a short, reflective history, see john kenneth galbraith, the great crash – 1929 (penguin books/pelican imprint 1955, 1961). 194 book reviews as roosevelt sought to do, perceiving that the court, as then composed, would not uphold his new deal measures. in the event this restructure did not take place, due to the lack of popular support.11 further, this power is not constitutionally unbridled: any new supreme court appointments require the congressional process of senate hearings, providing a possible check and balance where a president seeks to ‘stack’ the court.12 the chapters on ‘representation’ (ch 5), ‘equality’ (ch 6) and ‘rights’ (ch 7) are central to issues confronting the united states today. in 2020, the 100 year celebration of ratification of the nineteenth amendment granting women voting rights is a significant milestone in equal rights, representation and equality, and it is ironic that, as bodenhamer remarks, war has been ‘important in crystallizing support for a more democratic constitution’. this occurred with the fifteenth amendment (extending voting rights to african-american men after the civil war), as it did with the nineteenth amendment (first world war), and later with the twenty-sixth amendment lowering the voting age to eighteen (vietnam war).13 today, rights and equality are under significant attack. efforts are made by some states to curb voting rights, particularly for african americans and racial and ethnic minorities.14 the rights of refugees and asylum seekers are under continuing assault, promoted by presidential efforts to bar entry to the united states on the basis of ethnic or national origin or religion.15 11 ibid 57. 12 although the 2018 senate hearings resulting in acceptance of the nomination of judge brett kavanaugh as an associate justice of the supreme court may bring into question the ‘check and balance’ principle: committee on the judiciary, ‘judge brett m. kavanaugh – nominee to serve as an associate justice on the supreme court of the united states’ (hearings) <https://www.judiciary.senate.gov/kavanaugh> accessed 19 november 2018. 13 ibid 69–70. 14 see for example common dreams, ‘federal civil rights commission finds voting rights under attack’ (common dreams, 12 september 2018) <https://www. commondreams.org/newswire/2018/09/12/federal-civil-rights-commission-finds-votingrights-under-attack> accessed 5 november 2018. 15 see national archives, ‘2017 donald trump federal executive orders’ (federal register) <https://www.federalregister.gov/presidential-documents/executive-orders/ donald-trump/2017> accessed 5 november 2018; national archives, ‘2018 donald trump federal executive orders’ (federal register) <https://www.federalregister.gov/presidential documents/executive-orders/donald-trump/2018> accessed 5 november 2018; ‘explaining trump’s executive order on expanding family separation’ new york times (20 june 2018) <https://www.nytimes.com/2018/06/20/us/politics/family-separation-executiveorder.htm> accessed 5 november 2018. the denning law journal 195 free speech, addressed in chapter 7 ‘rights’, is today confronted in replication of george orwell’s nineteen eighty-four ‘new speak’,16 with charges of ‘fake news’ filling the media and common in everyday conversation. this is a warning in light of bodenhamer’s conclusion that free speech is a ‘bellwether for the expanded conception of rights’ under the constitution.17 the supreme court’s decision in citizens united v federal election commission (2010), striking down congressional limits on campaign spending by corporations, groups and individuals despite this making it ‘easier for wealthy interests to drown out other voices’18 has played a part in the current offensive against rights. all this confirms the need for continuing vigilance in the struggle to ensure that government plays a role supportive of human, civil and political rights rather than undermining them. bodenhamer recognises this in chapter 8 ‘security’, in his observations on the role of the constitution, the president, congress and the supreme court in the ‘war on terror’ which has led to contemporary side-lining of rights formerly recognised as ‘given’. in the brief ‘epilogue’, bodenhamer recognizes that the constitution is ‘one constant in american history’, and as circumstances have changed, ‘so has the constitution’.19 he concludes: how this framework for government will evolve is uncertain, but … it is once again facing serious challenges to its revolutionary legacy. endless wars, an aggressive presidency, a gridlocked and hyper-partisan congress, a sharply divided electorate, economic inequality, immigration, cybersecurity and privacy, and foreign interference in the nation’s democratic processes, among a host of other issues, have placed demands on government and on society that test its constitutional values.20 whether the 2018 mid-term elections and the renewed influx of democrats into a formerly republican dominated house of representatives21 will make the difference some anticipate remains unknown. quoting benjamin franklin’s remarks at the 1787 constitutional convention, bodenhamer wonders whether 16 george orwell, nineteen eighty-four (penguin modern classics 2013). 17 ibid 102. 18 orwell (n 16) 102. 19 orwell (n 16) 123. 20 orwell (n 16) 124. 21 ‘us mid-term elections 2018 results’ financial times <https://ig.ft.com/us-midtermelections/> accessed 19 november 2018. 196 book reviews indeed power has been addressed successfully: does a rising or setting sun characterise the united states in its original and present form? in response to the question: ‘well, dr franklin, have you given us a republic or a monarchy?’ benjamin franklin replied: ‘a republic, if you can keep it.’22 today, bodenhamer concludes: how americans interpret the constitution during unsettled and disturbing times makes franklin’s challenge the most important one that the united states as a nation will ever face.23 this small book provides both a foundation and insights into how this question may be answered. 22 us constitution, ‘speech of benjamin franklin’ (17 september 1787) <https://www. usconstitution.net/franklin.html> accessed 5 november 2018; ibid 125. 23 ibid 125. 17 the denning law journal 2017 vol 29 pp 1740 community property claims in the personhood perspective: part 1 natalie pratt* 1. introduction western understanding of property has traditionally followed the blackstonian conception of: …that sole and despotic dominium which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.1 whilst this infamous quote is often cited out of context, the right to exclude others is still recognised as the hallmark of the property rights enjoyed by a titleholder. communal property arrangements are in sharp decline, especially in capitalist economies. social and economic policy favour those who use by taking resources and excluding others, as opposed to those who use a resource whilst sharing it. by using a number of models (such as the tragedy of the commons, the prisoner’s dilemma or the logic of collective action),2 social scientists, economists and lawyers have all argued for the privatisation of natural resources at the expense of common-property regimes. common-property suffers a stigmatisation; it is often considered an arrangement that is marred by the mismanagement of resources, confined to the developing world and intrinsically linked to poverty. 3 consequently, very little provision is made in english law for communal property arrangements, and there is no real legal mechanism that can * teaching fellow, dickson poon school of law, king's college london. 1 sir william blackstone, commentaries on the laws of england (chicago university press 1979) 2. 2 elinor ostrom, governing the commons: the evolution of institutions for collective action (cambridge university press 1990). 3 cf runge, ‘common property and collective action in economic development’ in dw bromley (ed), making the commons work: theory, practice and reality (san francisco: institute for contemporary studies 1992) 17. community property claims 18 adequately accommodate this alternative method of property holding. 4 the trust and the corporate form can be manipulated to enable communities to control and hold title to land, but are not mechanisms that are designed or inherently suited to such a purpose. even newer initiatives, such as community land trusts,5 are bound to the existing legal forms and have not developed new title holding mechanisms in favour of the community, thus limiting their impact in furthering the communal property cause. notwithstanding the prevalent trend of the privatisation of resources, our legal doctrine strongly suggests that some kinds of property should not be exclusively private; but rather should be open to the public or subject to the jus publicum.6 indeed, it has also been argued that communal resource use is a “versatile and endemic phenomenon, not a relic of past or primitive societies”.7 empirical studies of communal resources have demonstrated that common-property arrangements can, and do, survive. moreover, new de facto common-property arrangements are arising, and yet there is an inadequate legal framework in practice to recognise them. modern commons scholarship is trying to reverse the marginalisation of commonproperty arrangements, the first step of which is to justify these arrangements, as this article aims to do. this two-part article seeks to expose the imbalance between communal and private property arrangements by justifying communal property claims using a theory that is frequently invoked to justify private property: the personality theory of property. it is argued that if a community of users can establish a claim within the personhood perspective, that claim should be treated with the same respect as the private property claim founded through the same mechanism. where competing claims to natural resources (specifically land) exist, it should not always be the private property claim of an individual landowner that takes priority when the other claimant is a community of users. if both claims can be justified through the same mechanism, both should be treated with equal weight and consideration. part ii of this instalment examines the personality theory of property as traditionally applied to justify private property claims, and suggests that this justificatory framework could, in theory, be applied to a communal claim. part iii acknowledges that the personhood claim cannot be applied 4 english law currently restricts the number of individuals who may collectively hold title to a resource to four persons, as per s 34 law of property act 1925. 5 housing and regeneration act 2008, s 79. 6 c rose, property and persuasion: essays on the history, theory and rhetoric of ownership (westview press inc 1994) 106. 7 a clarke, ‘creating new commons: recognition of communal land rights within a private property framework’ (2006) 59 (1) current legal problems 319, 325. the denning law journal 19 to simply any group to substantiate a successful property claim, and examines the requisite group characteristics that allow the application of the theory. the second instalment of this two-part article will then apply the personality theory of property to the limited number of community claims that are recognised in english law. it will be shown that the personality theory of property is not yet operative in the community context, and does not protect community entitlement in the way that it protects the entitlement of private individuals. the second instalment also explores why community entitlement to property fails to adhere to the personality theory, and points to the inconsistency between the nature of the community claim and the dominant narrative in property discourse. finally, it will be suggested that whilst recent political initiatives purport to have given greater weight to community entitlements to property, this is in fact a ruse. the outcome of the policies aimed at recognising the community claim is little more than a perpetuation of the preference for private property initiatives. the reluctant conclusion of these papers is that a community of users cannot establish an entitlement to the resource that they use through the personality theory of property. whilst in theory claims of a community should be respected in the same way as claims of individuals under the personhood perspective, this is impossible as long as the dominant narrative of property is that of the self-interested individual. the english legal system does not understand the nature of communal claims, and all attempts to introduce policies and mechanisms that recognise and accommodate community claims to land have proved ineffective. allocation of, and entitlement to, natural resources not only relies on the dominant property narrative, but also the political climate in which the narrative is developed. the political climate is such that promoting community entitlement to property is not advantageous to realising the economic aims of the government, which, in light of the recent economic downturn, can only really favour the instrumental and fungible property claim. 2. the personality theory of property instinctive impulse drives us to collect property; and the collections thus made become, with different degrees of intimacy, parts of our empirical selves. 8 the personality theory of property, also referred to as property and personhood (the terms are used interchangeably), is traditionally used to 8 w james, the principles of psychology (henry holt and co inc 1890) 293. community property claims 20 justify private property claims. the essence of the theory is that an individual embodies himself or herself in the external world by projecting their will into external unoccupied objects. the property becomes bound up with their personality, and is a constitutive part of their personhood. this embodiment of will justifies the individual having dominium over the property, as it is to be treated as part of his or her empirical self. for another to use the property would be an invasion of bodily integrity, and therefore the entitlement of the individual invoking the personhood claim should be protected by rules prohibiting such trespass. therefore, the personality theory of property extends the assault analogy by extending its scope to invasions of bodily integrity that may occur once personhood-constituting claims to property are recognised.9 hegelian model the origins of the personality theory of property can be found in the philosophical scholarship of hegel, most notably in his seminal text, philosophy of right. in hegel’s personality theory an individual embodies his personality in property by projecting and externalising his personality into previously unoccupied objects. to embody one’s personality in an external object one must use and take possession of the item.10 this in turn precludes a second man taking possession of something that is already the property of another,11 and the first possessor will be considered the true owner, as there is no property left for another man to take.12 waldron describes the embodiment of will as a two way process: first the object is effected by your will, and second, as a result of that effect, it makes certain uses of that object possible that otherwise would not have been possible.13 once an individual has embodied their will in the external object, that object becomes part of their person, in the same way that their physical form is constitutive of their person; this is the justification for the acquisition of property by an individual. however, hegel’s personality theory does not concentrate solely on the individual, and does recognise a role for the group or community; this role is not equivalent to the role of the individual and their will, but it is crucial to establishing a personhood 9 jw harris, property and justice (oxford university press 1996) 213-19. 10 gwf hegel, philosophy of right (t knox tr, clarendon press 1952) 49 para 60. 11 ibid 45 para 50. 12 ibid 49 para 61. 13 j waldron, the right to private property (oxford university press 1988) 349. the denning law journal 21 claim. there are three important references to the community in hegel’s work. first, hegel requires the embodiment of a person’s will in an external object to be recognisable by others, and the presence of other human beings in the world is essential for that recognition. for a person to have something as his or her property, there must be those in the world who do not have that item as their property, and who can recognise the property claim of someone else.14 unless the individual claiming the object to be theirs is doing so in the context of the group, there is no value or substance to the claim, as the right to the property has no correlative duty. second, hegel incompletely introduces the notion of autonomous groups, and gives particular attention to the family unit and their property relationships. 15 he treats the family in the same way as an individual by asserting that the family only has an external existence through property; “and it is only when this property takes the form of capital that it becomes the embodiment of the substantial personality of the family.”16 the desires and needs of particular individuals in the family unit are transformed into the care for common possessions. hegel explains that whilst each member of the family has no property that he can call his own, he has a right to the common stock. the idea that family members share in a common stock initially looks appealing to the aim of this article: applying the personality theory of property to the communal claim. if the group or community that is seeking to establish an entitlement to property can be considered as analogous to the family unit, it seems that it is possible to assert that the community has no external existence until they embody their will in property. this embodiment will be possible if each member of the community is willing to give up their individual entitlement in favour of a share in the common stock held by the community unit. however, this initial reading is flawed and unhelpful. hegel requires that the husband, as the head of the family, must represent the legal entity and that his powers of administration may clash with the right of the individual family members to the common stock. this clash could eventually lead to ‘partition’ and ‘contingency’.17 therefore, hegel’s autonomous family group does not advance the case for the recognition of communal property-holding any further. it seems difficult to understand the family unit as a communal holding mechanism as long as the administration of the property can only be conducted by one of those persons entitled to the common stock. one of the primary problems 14 s munzer, a theory of property (cambridge university press 1990) 69. 15 hegel (n 10) paras 169-71. 16 ibid 169. 17 ibid 171. community property claims 22 with community title is that it is not recognised in law, and even those that are recognised do not have the characteristics of a true communal regime. they invariably rely on the right of one person to administer the property and represent the other members of the community, rather than recognising a collective entitlement to manage and administer the property. this concept of communal-holding bears some resemblance to a trust relationship: the individual with the power of administration holds the common stock on trust and manages it for the benefit of the beneficiaries, who are the members of the family unit. therefore, it seems that hegel’s conception of the family is little more than a trust-like relationship, and advances the possibility of applying the personality theory of property to communal claims no further. only if the notion of the autonomous group is further developed will it be possible that the property and personhood claim could be used to substantiate a community entitlement to property. finally, hegel explicitly cautions that individual property rights cannot prevail over demands that may be made for the realisation or maintenance of a genuine ethical community or state.18 he also goes further by saying that the state may cancel property rights in exceptional circumstances. however, he also renders this unusual, as the state has actively sought to promote private property as “no community has so good a right to property as a person has”.19 therefore, in this instance, the role and entitlement of the community seems to be subordinate to the property of individuals, unless exceptional circumstances prevail. neo-hegelian conceptions: personal and fungible property claims hegel’s work has been examined and reformulated in many of the texts that are referenced throughout this article. one of the most notable contributions to this neo-hegelian restatement is in the work of professor radin, who notes that “[a]lmost any theory of private property can be referred to some notion of personhood”.20 she frames her inquiry as being an exploration as to how the personhood perspective can help resolve specific disputes between rival claimants. therefore, radin’s work could be vitally important to the adjudication of disputes between an individual and a community that lay claim to the same resource. both radin and hegel proceed from the same basic premise: that to achieve proper self-development an individual needs to control resources in the external environment. yet, despite being a species of the same theory, 18 waldron (n 13). 19 hegel (n 10) additions to para 46. 20 mj radin, ‘property and personhood’ (1982) 34 stanford law review 957. the denning law journal 23 the personhood perspectives put forward by hegel and radin differ in a number of ways. the most crucial of these differences is the conception of the ‘person’ that each is deploying. as far as hegel’s personhood perspective is concerned, a person is not fully constituted and capable of being a person until they have property and control over resources in the external environment. therefore hegel’s person is akin to the conception of the person that is prevalent in the philosophy of kant. hegel’s person is an autonomous being that is capable of holding rights, and thus does not have any individuating characteristics until these rights are acquired. on the contrary, radin adopts a view of the person that does not eliminate their individuating characteristics. her person is already fully formed and constituted when he projects his personality into the world, and the property relationship allows the individual to express himself in the outside world, rather than attain status as a person. using this conception of the person, radin pursues what she labels as the ‘intuitive view’ of property and personhood, which is wholly subjective. she argues that most people possess objects that they feel are almost part of themselves because they “constitute ourselves as continuing personal entities in the world”.21 to measure the strength of the connection between an individual and the objects that they possess radin suggests the metric to be the level of pain that would be incurred should the individual be deprived of that object. on this measurement, if the pain caused by the loss of the object cannot be alleviated by the replacement of the object, it is likely that the object is bound up with the holder and is closely related to their personhood. the example that radin provides is that of a wedding ring, to which the wearer would attribute a sentimental value that could not be replicated by a replacement ring or through substitution for monetary value. if, however, the wedding ring were stolen from a jeweller, it is likely that a replacement ring or the monetary value of the ring would be a sufficient remedy to alleviate the pain caused by its loss. unless there are special circumstances it seems a safe presumption that the ring has no sentimental value to the jeweller, who views the ring as profit. radin has respectively labelled the claim of the wearer of the ring and the jeweller as personal and fungible property claims. she presents these two claims in the form of a dichotomy, although she does also acknowledge that objects may shift between the categories of personal and fungible property, or they may fall out of the categories of property altogether.22 radin’s view is subjective in the sense that the objects that may be bound up with individuals, through the metric of the pain incurred on their loss, will vary greatly from person to person. one individual may view their 21 ibid 959. 22 ibid 966-67. community property claims 24 rolex as a financial investment, which could be replaced by a watch of the same specification and vintage (or its monetary value), whereas others may have an attachment to their rolex as a gift or family heirloom. similarly, some individuals may feel a deep attachment to items that others view as absurd or odd, but the pain that would be caused by the loss of these items qualifies them as closely related to the personhood of the individual. it is unclear where the limits of the tolerance for personal-property claims in the subjective view are. there must be a dividing line between those claims that are valid and acceptable, and those that are simply fetishes that are not, or arguably should not, be closely linked to personhood. all personhood claims are based on the preferences of individuals, but there must be objective criteria that differentiate between good and bad identification with external objects.23 once a valid connection to an external object can be substantiated, the personality theory of property suggests that the property claims that are constitutive of personhood have a stronger moral claim than property claims that have an instrumental purpose. in short, personal claims to property should be protected ‘against invasion by government and against cancellation by conflicting fungible property claims of other people’.24 personal-property claims should take priority over fungible property claims, even when the fungible property claim is established first in time. this general rule may be rebutted in exceptional circumstances where the property claim can be proven not to be personal, or where is can be deemed not to be so personal as to outweigh the importance of the government taking the object over which the claim is made for a particular social purpose.25 if the latter circumstance occurs, it is likely that the level of compensation awarded for the deprivation of the property would reflect the personal nature of the property claim (notwithstanding the fact that the personal claim is unlikely to be adequately compensated through the mode of damages). at first glance the rule that personal property claims should take priority over fungible claims, even where that fungible claim is established first in time, seems to contradict hegel’s notion that once property has been occupied there is no property left for another man to take. if a property claim can be displaced by a competing property claim it suggests that there was residual property available for occupation, the occupation of which can eventually result in the total displacement of the existing fungible claim. however, on a closer reading, the combined effect of radin and hegel seems only to be that the fungible claim should not be protected against a 23 ibid 961. 24 ibid 1015. 25 ibid 1005. the denning law journal 25 subsequent personal claim; only existing personal claims should be protected against subsequent claims (whether personal or fungible), whereas fungible claims will only be protected against subsequent fungible claims. the fungible claim does not give rise to the same entitlement as a personal claim. the personal claim precludes another from claiming an entitlement to the property, as there would be no property left for another man to take once that property is constitutive of the personhood of the first occupant. conversely, fungible claims can always be displaced where an individual embodies their will in the object and links it to their personhood, regardless of whether the fungible claimant was the first occupant or not. therefore, the personality theory of property is normative, insofar as it suggests that property constitutive of personhood is worthier of protection than other property claims, and that personal-property claims give rise to a stronger entitlement. the inquiry in this article has adopted the personal/fungible dichotomy because its purpose is to adjudicate between competing claims to the same resource. in the context of the wedding ring example above, if there were a conflict between the claims of the wearer and the jeweller, the claim of the wearer would take priority, as their claim is a personal one. the ring is bound up with the personhood of the wearer, whereas the jeweller has only an instrumental value for the ring, rendering his claim fungible. the same reasoning applies to natural resources, such as land. for example: if person a builds their home on a plot of land (we will assume for the moment that this is done lawfully), and the interest that person b holds in the land is purely financial (such as being the landowner), and person b seeks to use the land in a way that is inconsistent with a’s home being on the land (sale or development with the intention of making financial gain etc.), the claim of person a should prevail, unless there are exceptional circumstances. person a has a personal claim over the land; the land is the site of their home to which they have an attachment. it is unlikely that a replacement home will hold the same value for person a as their present home does. this home has fostered relationships, memories and sentiment that a replacement house would not have. on the contrary, the landowner who holds a purely financial interest is asserting a fungible property claim only as he attributes an instrumental value to the land. furthermore, person b would, in this scenario, also be satisfied with replacement land or monetary compensation on the loss of the land. in a direct clash between the two, the personal claim has the greater moral value, and should be protected. person b should be prevented in engaging in the use that is inconsistent with the claim of person a. the personhood perspective does not exist only in the hypothetical instance, nor does it only exist at a theoretical level. there are many legal doctrines that, whilst they are not labelled as such, either expressly or community property claims 26 implicitly acknowledge the personal-property claim as worthy of protection over those claims that are fungible. for example, allowing individuals to acquire rights over land by prescription, and allowing the acquisition of title by virtue of long use through adverse possession, both acknowledge that those who use the land for a sustained period bind themselves with the land in such a way that gives rise to a property claim. this property claim often takes the form of a personal-property claim,26 and in the case of adverse possession may even lead to the fungible claimant losing title to the land altogether. another example can be found in the overriding interest of persons in actual occupation.27 the overriding interest protects unregistered interests in the land, provided those rights are coupled with occupation of the land, even in the presence of a conflicting claim. if the individual occupies the land it is assumed that their personhood is closely linked to the land in such a way that the loss of the land cannot be adequately compensated through substitution of the land, or provision of monetary compensation. they have an entitlement that should be upheld against fungible claims of purchasers, or a pre-existing personal claim that should take priority over new personal claims that may arise. personhood in the group context the contentious element of this project is extending the normative principle of favouring personal claims to a conflict concerning the claim of a group or community against claim made by a private landowner. the personal/fungible dichotomy has rarely, if ever, been analysed outside the context of a conflict between two individuals. it is essentially a way of justifying a private property claim and allocating a resource or object to one person over another. however, it does not seem beyond the realm of logical application that, if a group could establish a personal-property claim, it should defeat the fungible claim of others. the application of the dichotomy and normative principle to this effect would be radical; the group would attain new competencies and status, and is not without its difficulties, but it is certainly not impossible. some headway has already been made in applying the personhood perspective to community claims. for example, professor harris suggests that the assault analogy actually has more force when discussing the concept in the context of community claims to first occupancy. he suggests that to take artefacts that are closely identified with the cultural identity of 26 a clarke, ‘use, time and entitlement’ (2004) 57 (1) current legal problems 239. 27 land registration act 2002, sch 3 para 2. the denning law journal 27 a particular community constitutes a natural wrong. 28 furthermore, he suggests that that analogy is even stronger in the case of land if the community is in occupation of the land and relies on its use for economic survival, as incompatible uses by newcomers will constitute an attack upon the community’s collective integrity. 29 whilst harris is not directly addressing a group personal-property claim, the personality theory relies heavily upon, and indeed extends, the assault analogy that he is discussing. furthermore, there are similarities between the first occupancy rule and the personality theory of property that enhance the relevance of harris’s observations in the context of the personality theory of property. the key similarity is that once property has been occupied by force of individual will, and that claim is personal, there is no property left for another man to take. in much the same way, once property has been taken or occupied for the first time, the individual engaged in that act of taking has the best title to the object. radin does not herself take the additional step of applying the personal/fungible dichotomy in the group context. however, similarly to hegel, radin does indicate that the group has some role in the personality theory of property. she briefly revisits hegel’s assertion that an individual can only find self-determination in the context of a group, and notes that this may have political consequences for group claims on certain resources in the external world. 30 it seems that, for radin at least, applying the personhood perspective to a group claim to protect that group’s entitlement is not beyond possibility, although that step is still only in elementary form. in the context of eminent domain (compulsory purchase), radin suggests that: although the personhood perspective has not yet yielded a general limitation on eminent domain, some fragmentary evidence suggests that group property rights, if connected with group autonomy or association, are given enhanced protection.31 this project seeks to achieve what the neo-hegelians have yet to do: to apply the personal/fungible dichotomy to claims made by groups and communities to natural resources, such as land, and to allow those groups that succeed in establishing a personal-property claim to defeat any competing fungible claims. the application of the theory in this way will potentially allow those communities that use land to defeat the claims of 28 harris (n 9) 216. 29 ibid. 30 radin (n 20). 31 ibid 1006. community property claims 28 those who seek to use the same land in a way that is inconsistent with the use of the community. for example, recognising the personal-property claim of a community that use land for the purposes of recreation could protect these recreational spaces from inconsistent use that is motivated by financial purposes, such as development or enclosure. there is currently very little legal recognition of community rights to resources, and those mechanisms that do exist are tempered by political policy objectives. by grounding the community entitlement in a strong theoretical framework, such as property and personhood, the chances of achieving legal recognition of community claims and entitlement are greatly increased. in principle, the application of the personality theory of property to community claims seems plausible. however, there are a number of difficulties that must be explored. the primary difficulty is the nature and conception of the group. at present a group or community does not enjoy the same legal and moral status as an individual to whom the theory is applied. groups are inherently different in that they are a collection of wills, rather than one single will that is seeking to be embodied in the external world; and it is to this problem that the attention of this article will now turn. 3. defining the community in the attempt to apply the personality theory of property to communal claims the initial challenge is to reconceive the role of the group. it is clear from the preceding discussion that the group dynamic has some, albeit limited, role in the personality theory of property. the settled role of the group, which is in effect the society in which the private property-owning actors operate, is to act as an audience to the claim of the private individual. 32 the present function of the group can therefore be understood by using a centuries-old puzzle; if a tree falls in the woods and there is nobody around to hear it fall, would it make a sound? if a private individual established and then communicated a private property claim over a natural resource, and there was nobody around to receive that communication, would the claim still exist? the group in the property claim serves the same function as the ear with the falling tree. the falling tree causes a number of vibrations in the air, or sound waves. however, ‘sound’ is something within human experience, until the vibrations reach a human ear and are synthesised, they will only ever be vibrations. the same reasoning applies to the property claim: until that claim is communicated to, and understood 32 see also rose (n 6) chapter one, where the importance of the audience and the symbols of possession are discussed. the denning law journal 29 by, the society in which the claimant lives, it has no substance or meaning. by receiving the communication and understanding the property claims made by others the claim is realised, and the entitlement can be respected and observed by the members of society. the group or society is, on this conception, little more than a collection of self-interested individuals; there is nothing inherently cohesive or grouplike about them. the group does not have a level of collective autonomy that elevates it to the status of a right-holder, and which allows the personality theory of property to substantiate a property entitlement in their favour. the individual members and their property claims exist solely as a comparator for the claims of others;33 they allow for the distinction between that which is ‘mine’ and ‘thine’, a distinction that, when made and understood, gives the private entitlement of one individual real substance. the closest that this disparate conception of the group gets to being communal is when a number of individuals with similar interests associate with one another. however, there is a marked difference between groups in which each individual holds a right individually and severally, and a group in which the group itself has a right. a group, whose members make the same property claim, or hold the same property rights, does not automatically lead to a group that itself holds a right. for example, every member of a community may hold the benefit of an easement, which they exercise in common with other members of the community who also have the benefit of an easement that is substantially similar to their own. this state of affairs does not mean that the community itself has an easement, but rather that the community is comprised of a number of similarly situated individuals. professor mcdonald labels this collection of individuals a ‘class action concept of collective rights’, and he defines the group as a “convenient device for advancing the multiple discrete and severable interests of similarly interested individuals.”34 this article seeks to go further than the class action concept of collective rights, and seeks to justify the group itself making a property claim and holding the consequential property rights. the role of the group should be more substantial than just a mechanism advancing the similar interests of individuals. as mcdonald himself argues: 33 it is observed that there must be poverty for there to be private property, however the link between those who are propertyless and their ethical status and incomplete personhood is unclear, see waldron (n 13) 377-89. 34 m mcdonald, ‘should communities have rights? reflections on liberal individualism’ (1991) 4 canadian journal of law and jurisprudence 217-18. community property claims 30 …class action rights are too thin a model for collective rights. a major aim of group rights is to protect interests which are not thus severable into individual interests for the rights in question benefit the group itself by providing a collective benefit.35 group personhood the conception of the group must be modified for the personality theory of property to allow groups themselves to establish personal-property claims, something that hegel did not do, and that the neo-hegelian scholars have yet fully to do. in order to use the personality theory to justify the recognition of communal property rights the group, as a collective, must itself be able to make a claim and must be ascribed the same competencies and power of the private individual. however, the difficulty with considering the group in the same light as an individual is that they are inherently different. the personality theory of property embodies the will of an individual in an external inanimate object. this process is easy to rationalise when it is applied to a private individual who has a single identifiable will. yet, when applied to the group dimension, a problem emerges. the group contains a number of individuals, each with their own will. it is likely, if not inevitable, that these individual wills will in some way be inconsistent with one another. therefore, the first task is to organise disparate individuals into a united group. in the context of arguing that hegel provides a rights-based, as opposed to utilitarian, argument for private property, professor waldron suggests that hegel himself addresses this concern. waldron states: …hegel did not believe that there was ultimately any distinction between the collective interests of a community and the individual interests of the members of that community. that the goals of the community to which he belongs should be pursued and realised that is the ultimate interest of each individual.36 this interpretation does not leave room for inconsistencies or incompatibility in the wills of the individual members of the community. by virtue of belonging to the community every member has the common will of pursuing the interests of the community. however, waldron’s statement presupposes that the community has an identified goal that it 35 ibid. 36 waldron (n 13) 347. the denning law journal 31 seeks to pursue, which in turn transposes itself into the will of the individuals belonging to the community. therefore, it seems that waldron is missing a step, as the group must first determine the goals and interests that it wishes to pursue before this can be adopted as the interest of the collective. for the community to determine the goals that it wishes to pursue there must be some decisionmaking process, of which the members of the community consider the outcome binding. there must also be some form of governance within the community and the ability to police those members of the community who diverge from the determined aims. therefore, a community that is able to achieve a united will, and group personhood that can project into the external world to establish property claims, must possess characteristics that are different from those groups (or society in general) that merely facilitate the private property claims of individuals. mcdonald supports this assertion and argues that for a group to function as a rights-holder its members must see themselves as normatively bound to each other such that each does not act simply for herself or himself but each pays her or his part in effectuating the shared normative understanding. 37 mutual self-interest commons in order to deduce the group characteristics that are necessary to facilitate the adoption of one collective aim, it is necessary to identify the type of common that this two-part article seeks to justify. there are three types of common-property regimes: no property, open access and limited access. the generic terms ‘common-property’ and ‘communal property’ are unhelpfully used to refer to all three. professor bromley suggests that this interchangeable use of language to describe different circumstances and legal relations leaves the progress of understanding these concepts impeded. 38 ironically, even bromley himself conflates the no property regime with open access property, stating that an open access regime refers to resources of which there are no property rights, or a resource that is res nullius.39 the definitions that this paper adopts are as follows. a no property regime is one where everyone in the world has the freedom, but not a right, 37 mcdonald (n 34); see also am honoré, ‘groups, laws and obedience’ in awb simpson (ed), oxford essays in jurisprudence (oxford university press 1973) 2. 38 dw bromley (ed), making the commons work: theory, practice and reality (institute for contemporary studies 1992) 3. 39 ibid 4. community property claims 32 to use the resource. this equates to a hohfeldian privilege and the correlative no-right not to be excluded from the use. in contrast, an open access property regime is one where every person has a hohfeldian right to use the resource, and all others have a duty not to exclude those who enjoy these rights; the paradigm case of which would be a right of way. a limited access regime also hinges on the right-duty correlate, but only those persons who are members of a particular community have the right to use the resource. it has been argued that the limited access common is the only species of common that has any chance of prosperity and of rebutting the tragedy of the commons, as the limited community of users is likely to have the necessary regulation in place.40 the group personhood claim seeks to establish a limited access common, also referred to as a mutual self-interest common (these terms can be used interchangeably). by establishing a group personhood and projecting the community personality into the external world, natural resources (and specifically land) are subject to the use rights and entitlements of the community, who may exclude all those who fall outside of the community. professor rose equates the open access regime with the use rights of the ‘unorganised public’, whereas a limited access common used by a smaller group or community has a greater resemblance to private ownership. 41 the cornerstone of a private property regime is that that titleholder must be able to exclude all others from their property. similarly, the community has the right to exclude anyone who is not a member from the use of the resource. indeed it is likely, if not almost certain, that this right to exclude is what allows mutual self-interest commons to survive, as will be discussed shortly. if this assertion by rose is in fact true, then it seems that a limited access common may not be a true ‘common-property’ regime at all, but rather a sub-species of private property that recognises the legal entitlement of more than four persons.42 however, whilst the small user group of a limited access common may well resemble private ownership, there is a key distinguishing factor; the alienability of communal property is markedly different to that of privately owned property. the rights of the user in both common-property (used in this sense to mean limited access commons) and open access regimes have been 40 clarke (n 7) 323. 41 rose (n 6) 117. 42 english law permits the legal title of property to be held by four persons or fewer, as stipulated by the law of property act 1925, s 34(2), and the rights of any further parties will be recognised in equity only. the denning law journal 33 extensively examined. in particular, professor eggertsson has highlighted the differences between the rights of the user in open access commons, and those in pure common-property regimes. 43 by adopting the spectrum of user rights put forward by professors ostrom and schlager, eggertsson compares the differences in entitlements between the two regimes. the possible entitlements that exist are:44 1. authorised access to enjoy non-subtractive benefits 2. right to withdraw resource units 3. right to manage and improve the asset 4. right to exclude others from entering and withdrawing resources 5. right to sell or lease the asset eggertsson suggests that open access regimes will entitle users to the first two incidents, whereas common-property regimes will entitle users to the first four.45 crucially, even a common-property regime will not entitle its users to the fifth incidence, as this is what separates common-property regimes from all other arrangements that include exclusive rights. true common-property is inalienable. eggertsson argues that a joint ownership arrangement that includes the power of alienation cannot be a common-property arrangement on the definitions given by ostrom and schlager.46 therefore, some of the limited mechanisms that are recognised for the joint holding of property, such as the company, should not be defined as a common-property arrangement. this view is supported by others; for example, professor clarke describes the corporate form as “inappropriatealthough not necessarily unworkable for communal resource holding”. 47 furthermore, the aforementioned distinction between group rights and the class action concept of collective rights would, in this context, suggest that the property rights in the common-property arrangement should benefit the community as a whole, not the individual members of the community. the rights that exist within a true common-property arrangement cannot be severed into individual interests that can be alienated; the property entitlement exists only as a 43 t eggertsson, ‘open access versus common property’ in tl anderson, fs mcchesney (eds), property rights: cooperation, conflict and law (princeton university press 2003). 44 ibid 74; see edella schlager and e ostrom, ‘property-rights regimes and natural resources: a conceptual analysis’ (1992) 68 (3) land economics 249. 45 eggertsson (n 43) 74. 46 ibid. 47 clarke (n 7) 350. community property claims 34 whole, and belongs to the group, not to each and every member of the group as an individual. one way to explain the inalienability of common-property is to view the property arrangement as comparable to a trust arrangement, such as the public trust doctrine. however, whilst in the public trust doctrine it is the state that holds the property on trust for the use of the general public, in a common-property regime the community hold the property on trust for the benefit of the present and future members of the community. this intergenerational equality of benefit prevents the community from alienating the property at the expense of the use of future generations, and is the factor that distinguishes the limited access common from private ownership. private property arrangements predominantly focus on the freedom of the present right holder. unless that right holder voluntarily undertakes to preserve their property for future generations and their heirs, there is no legal obligation to preserve the capital of their property in such a way. this theory also seems to attract some implicit approval from ostrom, who suggests that a successful community that establishes a limited access common will have an “intricate web of connections among participants who share a past and expect to share a future.”48 another way to explain the inalienability of common-property falls squarely within the application of the personality theory of property to communal claims. as professor harris notes: …[a] successful invocation of the personhood-constituting argument would not yield full-blooded ownership. in particular, it appears incompatible with freedom to transmit.49 the conceptual consequence of allowing transmission of property rights that have been established through a personal-property claim is to transfer a portion of the claimant’s personhood, which is in fact nontransferrable.50 professor benson supports this contention in his analysis of hegel’s philosophy, where he argues that only things can be alienated, and as personality is not a thing, it cannot be alienated. looking specifically towards paragraph 66 of philosophy of right, benson says that “whatever constitutes a person’s self-relatedness…whatever belongs to a person’s inward, thinking relation to him or to herself, must be treated as 48 a margalit, ‘commons and legality’ in g alexander, e penlaver (eds), property and community (oxford university press 2010) 145. 49 harris (n 9) 221. 50 pf strawson, individuals (methuen & co ltd 1959) 97-98. the denning law journal 35 inalienable”.51 therefore it seems wholly inconsistent to allow objects or resources, regardless of whether they are subject to a communal or individual personal-property claim, to be alienable. only objects or resources that are subject to a fungible property claim should be transferrable in this way, and personal-property claims would need to become fungible property claims before any alienation of the subject of the claim could occur. required community characteristics for a community successfully to establish a mutual self-interest common it must exhibit a number of characteristics. these characteristics allow the community to lay claim to the resource, and will also be instrumental in facilitating a group personhood claim. a significant and helpful contribution to the scholarship in this area can be found in the work of professor clarke who, after a survey of the literature (particular that of professor ostrom), suggests six important community characteristics: exclusion of non-members, mutual self-interest, homogeneity of interest, cohesive community, idiosyncratic regulation and the availability of sanctions.52 (i) exclusion of non-members the right to exclude others from the use of property that we consider to be ours is an important, if not the most important, characteristic of private property.53 it is also the hallmark of property rights stated in blackstone’s classical view of property. a successful limited access common also relies on the ability of the community to exclude non-members of the community from using the resource. clarke, by making reference to ostrom, summarises that: the tragedy of the commons is averted by communal holding only if the resource is controlled by a group which is small and cohesive enough to permit members, at a sufficiently low cost, to communicate between themselves and devise and enforce rules regulating their own use of the resource. but group control depends 51 p benson, ‘the priority of abstract right, constructivism, and the possibility of collective rights in hegel’s philosophy’ (1991) 4 canadian journal of law and jurisprudence 257, 283. 52 clarke (n 7). 53 rose (n 6) see chapter one generally. community property claims 36 on being able to keep out non-members, or, what amounts to the same thing, on all resource users being subject to the social norms of the group regulating use.54 (ii) mutual self-interest as alluded to during the previous discussion, there is the common misconception that communal property must be available to all. however, clarke contends that a successful communal resource holding must be “just as private to the community as private property is to the private property owner.” 55 the common is governed by a mutual self-interest, not the greater public interest, and its survival is probably contingent on this. (iii) homogeneity of interest the requirement for the homogeneity of interest runs to the core of waldron’s assertions about the community dynamic. if many different, and sometimes incompatible, interests exist within the community it will be difficult to reach an agreement on the collective goal to be pursued. studies have shown that disparate communities are not bound to fail, 56 but the likelihood of them doing so is far greater if homogeneity of interest cannot be achieved. (iv) cohesive community clarke suggests that the need for a cohesive community has a greater significance than the need for homogeneity of interest, as the cohesive community provides both the means and the method for promoting the mutual self-interest. 57 if the community are unable to act in a united fashion, and interact in a way that includes all members of the community, it will be unlikely that a homogeneous interest will be formulated and pursued. the importance of a cohesive community appears to have been acknowledged in english law in the instances where the community interest 54 clarke (n 7) 328. 55 ibid 329. 56 e ostrom, ‘the rudiments of a theory of the origins, survival and performance of common-property institutions’ in dw bromley (ed), making the commons work: theory, practice and reality (san francisco: institute for contemporary studies 1992) 293. 57 clarke (n 7) 329-30. the denning law journal 37 and entitlement to use land is recognised. for example, land may be designated as a town or village green if it can be shown that a significant number of the inhabitants of a locality or neighbourhood within a locality have used the land as of right for a period of twenty years. 58 whilst ‘locality’ has a technical legal meaning,59 sullivan j has suggested that a neighbourhood must have a ‘sufficient degree of cohesiveness’. 60 the example of the town and village green as a mechanism for acknowledging communal rights over land will be examined in the second instalment of this two-article series. (v) idiosyncratic regulation communities that successfully establish mutual self-interest commons also develop a variety of regulations that meet the needs of their community. the precise rules that are developed will be unique to that particular community and may regulate who can use the resource, when they may use it and how. crucially, these rules will be developed by the community itself and will be informed by the shared experience of its members; this is an important point to note, as the law does not create groups and they are not legal fictions. it is not objective factors, such as race, culture or language that makes a collection of individuals into a community or group, but rather subjective factors and a shared understanding. 61 objective factors may be a good indication that the necessary shared understanding exists between the members of the group and that idiosyncratic regulation will develop, but this is neither a necessary nor sufficient condition. only those with the subjective knowledge of the community will be able to initiate successful regulation of the group, and the subjective knowledge of the group does not necessarily flow from objective assessment. an example of idiosyncratic regulation that ostrom provides is the alanya inshore fishery. 62 following a number of experiments in the allocation of fishing sites, the local cooperative devised a number of rules for the efficient and fair allocation of fishing sites among all licensed fishers 58 commons act 2006, s 15. 59 ‘locality’ is defined as an administrative district or area with legally significant boundaries in paddico (267) ltd v kirklees metropolitan council [2011] ewhc (ch) 1606 [97] (vos j). 60 r (cheltenham builders ltd) v south gloucestershire district council [2003] ewhc (admin) 2803 [85] (sullivan j). 61 mcdonald (n 34) 218, 219. 62 ostrom (n 2) 17-20. community property claims 38 in alanya. these rules included provisions that rotated fishers between fishing grounds, so that each had an equal chance of fishing the most prosperous sites. ostrom notes that not only did these rules develop from within the group rather than being imposed from outside the group, it would have been impossible for an outside agency such as the state to achieve the same efficiency in the rules.63 devising these rules required knowledge that could only be gained by fishing in the area for an extended period. the task of mapping the local fishing sites, the migration of the fish and the effect that fishing had on the migration could only be done by those with local knowledge and vast amounts of experience. furthermore, bromley also suggests that influences and rules that originate from outside the group may actually destroy the resource and the common-property regime. 64 in a similar example using fisheries, he suggests that governments often seek to modernise fishing practices by subsiding new technologies. the increase in fishing capability upsets institutional arrangements and leads to overfishing, yet many blame the common-property regime and not the introduction of alien fishing methods and technology. on the contrary, bromley suggests that those outside the community will hail the introduction of the technology as a success, branding the institutional arrangements ‘primitive or quaint’.65 it is possible that the internal idiosyncratic regulation does not even arise from a conscious, or democratic, decision-making process. the most prevalent way in which commons have historically come into being is through custom. the use of the resource may be governed by centuries-old understanding of entitlements between a community of users. (vi) sanctions the requirement that the group has sanctions has two limbs. first, ostrom notes that successful communities will adopt a system of mutual enforcement. for example, in the alanya fishery the fishers themselves monitor the use of the agreed fishing locations, and the enforcement of the rules allocating their use. cheating the rotation system and using a more prosperous site that one is not entitled to on a particular day would not go undetected by those who are entitled to use those sites; the fisher who is burdened by the cheat will take measures to protect his entitlement. the other fishers, who will be seeking to disincentive cheating so that their entitlement to fish on the prosperous sites is not interfered with, will support 63 ibid 20. 64 bromley (ed) (n 38) 8. 65 ibid. the denning law journal 39 him in the hope that there would be a reciprocity of support should they have need for it.66 the second limb is that the ultimate sanction for non-compliance with the regulations is exclusion from the resource or from the community that uses the resource. the community polices itself, and those who are identified through the monitoring process as not willing to comply with the rules are expelled from the community. 4. conclusion this two-part article is concerned with justifying the recognition of the rights of a defined community to a natural resource, also known as a limited access common, and not a claim made the by public generally, which is an open access regimes. despite the key feature of the limited access common being the exclusion from the resource of those individuals who fall outside of the community, there is a marked difference between the limited access common and the private property regime that it resembles: a true commonproperty resource cannot be alienated at the expense of the future generation of users. in order to justify the limited access common, in the hope of protecting community use claims against claims of private individuals, the personality theory of property can be applied. for a community to have the requisite personality that can be projected into the external world, and establish a claim over natural resources, it must have a number of characteristics. the six descriptive characteristics provided above are by no means an exhaustive list of the characteristics that a community must possess in order successfully to initiate a common-property regime, and neither are they a prediction of the success of a common-property regime. 67 indeed, the dominant message of ostrom’s scholarship on this topic is one urging caution against believing that there is one analysis that fits all common property regimes.68 however, the listed characteristics are a way of attaining the state of affairs that waldron; they ensure that the interests of individuals in the mutual self-interest group will be no different from the collective interests 66 ostrom (n 2) 20. 67 clarke (n 7) 329-31. 68 see for example e ostrom, ‘a diagnostic approach for going beyond panaceas’ (2007) 104 (39) proceedings of the national academy of sciences 15181; e ostrom, robust property rights institutions to manage local and global commons (presentation to the world bank – april 26, 2010) <http:// siteresources.worldbank.org/extard/resources/336681-1236436879081/ 5893311-1271205116054/ostrom.pdf> accessed 25 may 2016. community property claims 40 of the community, which is that the goals of the community should be pursued. the group characteristics listed above promote the required unity, and it becomes possible that the community possesses only one collective will. it follows that there is no reason why this will, like the will of an individual, cannot be projected into the external world. the second instalment of this article will proceed to apply the personality theory of property to the limited number of community claims that are recognised in english law. the aim of the inquiry will be to establish whether community property claims are afforded the same protection as their private property counterparts that are usually justified by using the personhood perspective. attempting the impossible: a plea for legal economy a. nallott* impossible attempts this is not, i hasten to warn readers interested in criminal law, yet another examination of the law governing impossible attempts, though criminal law comes into the discussion. my theme is directed to the same set of problems which i canvassed in my limits of law (1980),i that is, it concerns the limits on effectiveness and utility which are necessarily implied in the enterprise of regulating human conduct by law. regrettably, one is obliged to note that there is no progress at all to report in reducing the weight and burden of legislation in the decade since the appearance of that work. in fact, things are getting steadily worse, as i shall seek to show. although this topic sounds theoretical and more in the realm of jurisprudence than of practical affairs, this impression would be totally wrong. the implications of this enquiry are deeply practical. what governments and those who push or pressure them are trying to do, viz. to multiply laws in the vain attempt to controlwhether by prescription or proscription ever-increasing areas of our life in society, is doomed to partial or total failure. the failure becomes the likelier the heavier the weight of the new laws and their administration that is imposed on the society and its agents. we are, in my view, now reaching saturation point and beyond. legal economy so much for attempting the impossible. now for legal economy. i confess without shame that this is a pun. often the truth lies in paronomasia. what is argued here is not just a study of the relations of law and economics, interesting and important though these are. but, just as we have the separate subjects of study represented by the terms 'politics' and 'economics' and yet find a need for a discipline linking them, which we call 'political economy', so in my view we should recognise, define, and operate within a new area of study, to be called 'legal economy'. this would provide more than a cost-benefit analysis (though that would form part of the concerns of the legal economist) of new and existing law; in "professor of african and comparative law, university of buckingham. 1. butterworths, london 1980, passim. i the denning law journal this it would go beyond the impact and effectiveness studies which are currently in play. it would seek to provide a strategic overview of law-making, in comparison with what one may term the tactical studies so far made. options it will do this first by looking at options. if politics is about choices, then controlling people's behaviour by a variety of means is a question of options. one may immediately indicate the possible range of such options which are available to a would-be regulator. although and this is one of the major criticisms to be developed in this paper the legislative option, using law as the regulating mechanism, often springs first to mind, it is by no means the only, or even the most useful and effective, option. confronted by behaviour of which he or she either approves or disapproves, or about which he or she is neutral, the regulator has a variety of options of which the first is the simplest, viz.:(i) the 'liberty hall' or 'hands-off' option. this is a very attractive option. it consists in doing nothing and spending nothing, whether of time or resources, on attempting to regulate or provide for the conduct in question. but, and this cannot be stressed too strongly, there may be consequential costs of a do-nothing policy, which are conveniently ignored at the time, but which must be brought into the reckoning on any cost-benefit appraisal of the societal situation as it develops. (ii) the market option. this is a sophisticated variant of the hands-off option, involving the leaving of outcomes to the interplay of market forces. it differs from the hands-off, do-nothing approach in that it purports to be positive and intentional rather than negative in character, the hidden hand of the market being seen as promoting (ultimately) the survival of the fittest and the most economical and effective solution to the problem, whatever it may be. (iii) the persuasive option. no use is made of administrative or legal structures to ensure a particular outcome; instead, a campaign of information and persuasion is undertaken by the government or under its impetus, intended to persuade people to behave in the fashion approved by the government of the day. (iv) the physical option. instead of seeking to achieve a result by one of the other means viz. by persuasion, administrative action or law physical means are used to achieve the desired result. the simplest example is the so-called 'sleeping policeman' or speed-ridge: persuasion or law or the pressure of traffic might be used to reduce and control vehicle speeds; the speed-ridge provides an alternative by interposing a physical obstacle to excessive speed. (v) the administrative option. without making the law the ultimate instrument of policy, the end sought is to be achieved by administrative action, within a legal framework usually, but relying essentially on policy and discretion. (vi) the legal option. the making or adoption of a formal law to command, prohibit, or regulate the approved behaviour. this is or should be very much the last resort in the order of things, other options being pursued for preference with the appropriate action or inaction. 2 atiemptlng the impossible it would not be accurate to say that it is only in the 20th century that the administrative and legal options have been used as the principal instruments of government policy: the history of previous centuries in many countries demonstrates the contrary. think, for instance, of the sumptuary laws of ancient rome, which embodied a governmental objective the reduction of luxury which was achieved in post-war socialist britain by penal rates of income tax, capital taxes, and purchase tax on luxury items. think of henry viii and his attempts and those of his successors on the throne to impose religious conformity or right thinking and practice on his subjects by way of penal sanctions, which in the ultimate might include death; and contrast this with similar attempts to impose state-directed uniformity of thought and practice through the laws and machinery proscribing racial discrimination (though fortunately without such extreme sanctions for non-conformity!). the examples could be multiplied endlessly. but what is different about post-war britain is the sheer volume or weight of laws and administrative machinery which have been used to promote governmental ends. never before in human history have so many, and so complex, laws been accumulated in the pursuit of government policy. it is not unexpected that resort to law is strictly limited in the societies which lacked or lack writing, which is to say, in the majority of human societies for most of human history. in such societies customary laws are the norm. such laws, even when supplemented by chiefly or royal edict, have certain characteristics which tell against excessive law-making. the first feature of such laws is that they are oral, that is spoken, in character, and are recorded in the memories of men rather than in legal texts. human memory, however powerful in pre-literate society, can only retain a certain amount of detail and complexity. next, in so far as the law is customary, it is based on the habitual practices of the people; this implies that law is generated largely from the bottom-up rather than from the top-down, and represents the aspirations and attitudes of the law-subjects rather than those of their rulers. further, the total quantity of law is restrained by the built-in obsolescence of customary laws. a written text endures over time; it is in principle permanent. english law subscribes to the principle that enacted laws are not repealed by mere lapse of time (this principle is falsified in practice, but no matter for the present argument). contrary to the perceptions of some outside critics and observers of customary law, who tend to think that customary laws are by their history and nature fixed and unchangeable from generation to generation, actual study of such laws shows that in reality they can rapidly evolve, gaining features and losing features through the adoption of new practices or the abandonment of old ones. finally, it goes without saying that the technology and social and physical demands of the society and its environment are much less extensive in simpler societies that is why we call them 'simple'. but this adjective should not deceive us into failing to recognise that such societies however crude their technical achievements often exhibit elaborations of social behaviour and religious observance which are at least as complex as any in modem western countries. 3 the denning law journal the record so far it would be quite impossible to examine in detail the total reckoning of success or otherwise in the english attempt to regulate conduct by law. for a start, how do you measure success? (i consider some possible ways of evaluating the success of law below.) furthermore, the examples of the use of law to promote social or political ends are now so numerous that is one of the complaints! that a bare but typical selection must do. first, let us consider the road traffic laws. two items must be enough for present purposes. first, total failure. the speeds of motor vehicles on every road in this country are now purportedly regulated, in the interests of safety, by speed limits imposed by or under law. do vehicles systematically drive at or below these limits? in central london they usually do, but this is not because of the law but because the overwhelming pressure of traffic prevents their going as fast as carriages and carts went in the horse-drawn era. in built-up areas otherwise, the 30 mph limit is usually respected only by the very elderly, learner drivers, some magistrates, and cars being immediately followed by a police vehicle. go out into the country and onto the motorways, and the situation is much worse. a qualitative but effective method of measuring compliance with the 70 mph limit is to drive exactly at 70 mph in the 'slow' lane and see how many vehicles pass one, and how many one passes. when, to the annoyance of other road-users, i have carried out this experiment, 10 cars pass me for every car i pass. the police authorities, recognising the impossibility of enforcing these limits, have created one of their own: in exercising their statutory control over prosecutions, they have announced, they will not prosecute motorists going less than 85 but more than 70. this can hardly be adduced as a sign of the effectiveness of the law; rather, it testifies to the power of law-subjects to modify the law in action by their own systematic non-compliance. next, an unexpected success. before the law provided for the wearing of seat-belts by front-seat passengers and drivers was brought into effect, i shared the general scepticism that this law, which was said to infringe fundamental personal liberties as well as being impossible to enforce, would be unenforced and disregarded in practice. this scepticism was misplaced, as events turned out, even though prosecutions for not wearing a belt are rare. figures from the department of transport, as well as my own personal systematic observations on selected roads, indicate that more than 90% of drivers now habitually wear their belts. (strangely enough the city with the lowest score, under 90%, is belfast. perhaps compliance with the law generally has decreased there; or maybe breaking this law is part of a process of releasing oneself from the stresses imposed by other law-breakers?) why the law on speed fails, while that on seat-belts succeeds, is difficult to say; but an attempt is made below to answer this question when the factors which make for successful regulation of conduct are looked at. next, we may take the data proteaion aa 1984 as an example of a regulatory law of the modem type, of which many more are promised or threatened. a problem is 4 atfempting the impossible identified in this case, the possible misuse of information about individuals stored in computer memories. to tackle this problem, an enormous apparatus of regulation has to be set up, supported by criminal sanctions against those who do not observe the requirements. so we must have registrars, returns, access regulations, codes of practice, and all the rest of the administrative framework. so onerous are the requirements, and so inadequate the machinery and personnel available to oversee them, that one could make the confident prediction that there would be large-scale non-compliance, as much due to ignorance as to wilfulness. in the nature of things it is impossible to put a number on the percentage of non-compliance. anecdotally, especially as it concerns small businesses and data-users, it appears that failure to conform is widespread, and what is more important impossible to detect or remedy. measuring success all laws are ostensibly passed to achieve some goal or goals. there are those who object that it is impossible to spell out the purposes of any law, and so one cannot decide whether any given law achieves its purposes, and so can be counted as a success. with unenacted laws, this is because, they aver, the legal rules have no known source. this is obviously so for customary legal rules, which are formed on the basis of the habitual practices of the people subject to them, and are recognised as having binding force over their subjects (but even this presentation ignores the contribution made by those who decide cases to the articulation and approval of particular rules as rules of law). that unenacted law has no source, and hence no intrinsic purpose, is less obviously so in the case of judge-made law, as one might argue that a given rule of, say, common law can be traced back to a particular judgment or judgments; the authors of these judgments can accordingly be esteemed to be the authors of the rules which their decisions embody (and farewell to the declaratory theory!). but this does not help us as much as we would wish english judges habitually fight shy of articulating the ultimate purposes which they seek to achieve through their formulation of the law in the given case. instead, they emphasize that their job is restricted to deciding the case before them. furthermore, it is notorious that the reason of a decision, the ratio, is not necessarily left as the judge deciding the precedent chose to formulate it; it may be reworked, or a completely new ratio substituted, by a later court interpreting and applying the precedent. in the case of enacted law, the problems are different. so many fingers are in the legislative pie that one cannot definitively say which was responsible for inserting the purposive plum. how is one to decide, it is asked, whether to credit the draftsman, those who instruct him (the civil servants in their departments), the minister who puts forward the bill to the house, or, finally, the members of each house of parliament who discuss and decide on the text of the act (or worse, those who are in the majority voting for any given provision)? the purposes of each person or group of persons might differ, or even be internally in conflict with each other. 5 the denning law journal this would leave us with a lawwithout purpose, explicit or implicit, however it is thought to be generated or discoverable. this one must submit is a contradiction in itself. even if the purpose or purposes (and they are usually plural) of a given law or set of provisions may be difficult to isolate or may change from time to time, law as an enterprise presents itself to those subject to it as a purposeful, motivated set of communications. if i hear a voice on the village loudspeaker (as one might have done in nazi-occupied europe) telling the inhabitants to do or not to do something, i would assume that its instructions are obligatory, carry sanctions for non-compliance and hilve purposes, even if these are not known to me, and i do not know the identity of the person issuing the command or what is his juridical authority for so doing. in other words, what counts is the message at the point of sale or effect. those issuing such messages may be presumed to have objectives and purposes which they seek to achieve. laws, as human communication, carry within them purposes which we can try to discover and to use as measures of the effectiveness of the law, and it makes no difference if the purpose is an ex post faao reconstruction. in the case of the loudspeaker message, it might be declaring a curfew. the immediate purpose of this might be to keep the inhabitants in their houses at night. the presence of anyone on the streets after curfew time would be an indicator of partial failure of the order, and is in principle measurable. the ultimate purpose underlying the order might be to cut down on resistance activity. on this analysis, one may distinguish between the immediate purposes of a law, and the ultimate objective which lies behind it. thus the law on speed limits has as its immediate purpose to hold down vehicle speeds to a safe level. in doing this, it does not stand alone; the law on careless or dangerous driving also comes in to define what is a safe speed in all the circumstances of a given case. the ultimate objective of the law is to make driving safer for all who venture on the roads. this objective involves other factors and measures which are not necessarily legal, such as proper design and maintenance of roads, signposting, and driver training. it follows that in evaluating the success of a law, one must have regard in the first place to how it satisfies its immediate purpose (in the speed limits case, to hold down speeds), and in the second place to how far this immediate purpose contributes to the ultimate objective (holding down vehicle speeds as a contribution to road safety). some of the simpler laws are amenable to easily qualified measures of success, at least so far as the immediate purpose of the law is concerned. but most laws are either too complex to be subjected to such a simple analysis, or are not capable of being appraised quantitatively. qualitative measures are much vaguer and more subjective. theoretically, for instance, one might measure the success of the anti-drug laws by the number of seizures of drugs being smuggled into this country; but since one has no idea what is the total quantity of such drugs being illegally imported it is impossible to state what is the percentage seized, and whether this is improving year-on-year. nor indeed can one confidently say 6 attempting the impossible whether either the success or the failure of the law is attributable to the framing of the law itself, or to the quality and effectiveness with which it is administered. in the current debates (examples of which i mention later on) about the need for tougher or new laws to deal with this and that problem, this fundamental difficulty of appraisal is vital to devising a regulatory strategy. if one cannot say with confidence whether certain regulations are effective or not, how is one to decide which to choose, and which to vary? in the case of river pollution, for example, chemical analysis of rivers provides some gauge of success or failure of anti-pollution measures; in the case of child abuse there is no such gauge. but there are limits to the quantitative approach to the measurement of legislative success. there is the problem, already adumbrated, of what inferences one can draw from raw quantitative data as to the compliance with, or effectiveness of, a given law. on the principle, familiar to computer programmers, of 'garbage in, garbage out', one cannot hope to extract more, and more reliable, information from the data which one inputs than the' data themselves bear. in other words, can one rely on the relevant statistics? it was a common political quip in the 1960s, when the government was said to be operating with out-of-date economic statistics, that they were trying to run the railways according to last year's timetable. in our case, that of effectiveness oflaws, doubt has been cast, not just on the timeliness of the statistics, but on whether they bear any resemblance to reality whatsoever. two important surveys have just been published in this area, both directed to the same question: what is the relation between the reported and the actual incidence of crime? one of these surveys is the islington crime survey, carried out in the relevant part of inner london; the other is the latest official home office british crime survey, which reflects the incidence of criminality in 1987. both surveys carry the same dismal and disappointing message: the incidence of crime is grossly under-reported (as little as one in four, or even fewer, crimes reported to the police). planning for the criminal justice system, and attempts to assess its effectiveness, e.g. in reducing the quantity of burglary, are effectively impossible. some current concerns where a legal reaction is demanded to measure how ingrained and automatic is the current obsession with law as the remedy for all ills, one cannot do better than take a single issue of a quality newspaper as offering a representative reflection of the community's immediate concerns and the remedies proposed. the sunday times issue of february 25th, 1989, which i have to hand, illustrates the point exactly. these topics include:(i) blasphemy. in the wake of the salman rushdie affair, there are strong calls for the extension of the blasphemy laws to prevent injury to the religious feelings of muslims, hindus and jews as well as of christians (in other words, effectively making a new and comprehensive public order offence). other commentators, without realising the implications of the proposal, have argued for a new offence of defaming a dead religious leader or prophet or teacher. traducing the buddha, 7 the denning law journal mahomed, jesus christ, or l. ron hubbard (and even the ayatollah khomeini himself) would be caught by such a law. would this simultaneously mean a general extension of the law of civil or criminal libel to cover defamation of dead persons generally of whatever religious significance? if so, it would put a stop to rude plays about churchill, and also to most hollywood or political autobiographies. (ii) pollution of rivers. the new water bill is criticised, as is the existing law, as providing inadequate control of polluters or penalties for them. new safeguards are called for, with heavier penalties, including the imprisonment of those in large companies who contribute to pollution. (iii) unfit food. quite apart from the salmonella and listeria scares, we now have concern about substandard tinned food sold by food salvage companies. it is reported that "mps demand tough law on rotten food", together with a licensing system for such companies. (iv) terrorism. in the wake of atrocities committed by the ira and more recently by the animal liberation front, there are repeated calls for tougher and more effective measures to suppress terrorism. it is worthy of note that these extend to calls for an extension of the public international law, notably by creating a new international crime, that of terrorism, seen as a crime against humanity. (v) financing students. the projected legavadministrative provision for student loans has attracted fierce criticism. (vi) child abuse. in the wake of the cleveland affair, and the shocking statistics of child abuse which reveal themselves, new and better laws both to protect children and to punish their abusers are called for. (vii)juvenile crime. it is reported that, as a reaction to the growth of juvenile crime, "government ministers are considering changing the law to make parents responsible for crimes committed by their children." (viii) toy food. it is not just the british parliament which manufactures more and more laws; the eec is at it too. now eec legislation to prohibit the making and sale of 'toy food', (i.e. items intended to be used in play, which simulate real food) is coming into effect. (ix) official secrets. the government's bill2 to control the keeping secret of government secrets falls under heavy criticism, even though it is stated to represent a narrowing rather"than a broadening of the existing law. (x)accidents and disasters. from one writer we learn that responsibility for the list of recent disasters piper oil rig, locherbie, clapham, m 1 air crash must be laid at the government's door, and that they are ultimately due to the state of the present health and safety laws as enacted in 1974 and administered since. the health and safety inspectors do not have jurisdiction over off-shore oil rigs, nor over railways and transport undertakings. since 1980 there has been a 19% decrease in the number of such inspectors. the implication is that if the law was extended to cover such areas and more inspectors employed, these disasters might 2. now enacted as the official secrets act 1989. 8 attempting the impossible have been avoided. more laws more vigorously enforced are seen as the remedy for the destruction of aircraft by bombs. (xi) the atmosphere. discussion of the 'greenhouse effect', and the release of noxious substances into the lower and upper atmosphere, are now at the top of the agenda. all sorts of responses, each of which involves creating a new legal framework and new regulations, are under consideration. so far as chlorofluorocarbons or cfcs are concerned, there is talk of an outright ban on their manufacture and use, at least in the developed world, and this would have to be achieved both by international treaty (more international law) and by national legislation. so far as unleaded petrol and the pouring of noxious chemicals and metals into our breathable atmosphere are concerned, the government has attempted up till now to promote the use of unleaded petrol not by reliance on the law, but by the use of the market option on the one hand (manipulating the price mechanism to make unleaded petrol dramatically cheaper than the leaded kind) coupled with resort to the persuasive option. there will surely soon come a time when the uk government will feel itself obliged to use law directly to control pollution of the atmosphere by motor vehicles, by prohibiting the sale of leaded petrol, by requiring the installation of catalytic converters, and so on. more law ... if only the future destruction of the world's ecosystem could be prevented just by law alone, how simple life would be! (xii) dog excrement on pavements. this is seen as a health hazard, as well as aesthetically repulsive. the remedy suggested is stronger laws making dog owners absolutely liable, not just to fines, but to clear up the mess themselves. the reckoning and the overload let us assume for a moment that each and every one of these problems could be met by more and better law (which is a highly debatable proposition). we would still face the problem of juristic overload. neither the legislative machine, which is overtaxed, nor the agents of the law, whether police, inspectors, registrars, magistrates or health analysts, can take an indefinite increase in their duties and responsibilities. one can observe the overload factor at work even when the law is purportedly simplified. to alleviate the burden on magistrates' courts in administering petty road traffic laws, parliament introduced simplified methods of dealing with petty road traffic offences, with the issue by police of fixed penalty tickets etc .. other changes were made in our traffic laws. the effect at the sharp end, that is, in the courts which have to master and administer the new laws and their ancillary procedures, has been to increase still further the already unbearable weight of legislation and administration which presses on them. magistrates' courts clerks, in particular, have with every new law which imposes summary penalties or new procedures on bail, advance disclosure, legal aid and the like to master and hold in their memory this additional information, ready to be produced at the appropriate time. i select one example among many. the criminal justice act 1988 has just been 9 the denning law journal brought into effect. it has major repercussions on the way in which pre-trial and trial procedures are conducted, and its numerous provisions cover a bewildering range of different aspects of the criminal justice system. this has profound implications for the police, prosecutors, legal advisers, and the courts and their staffs. the complexity and range of the act are sufficiently indicated by the fact that its long title alone, which recites in summary the principal matters covered by the act, occupies a whole page to itself in the printed copy of the act which is before me. consider the implications of these radical changes in the law for those who have to conform to it. for the most part, the act's provisions are cumulative and not substitutional, that is, they must be added to the already complex burdens which the relevant authorities bear. each year the pyramid of new laws grows higher and higher. the criminaljustice act comprises no fewer than 173 sections and 16 schedules. it is no wonder that c.]. emmins and g. scanlan, in their commentary on the act,3 summarise the situation in these terms:"it is almost a cliche to remark that the volume and complexity of modem legislation presents [sic] students, practitioners and even judges with almost insoluble problems in trying to keep pace with the speed of change. and yet it is vital that those who will have the task of applying and administering the law in practice become familiar as quickly as possible with the changes that are being made ... . . . in no area of the law, perhaps, is the speed of change faster or the need to understand and assimilate the changes greater than in the area of the criminal justice system." and this is in those branches of law, criminal law and procedure, where it is universally agreed that the paramount needs in the interests of justice are for certainty of application and simplicity of operation, if the subjects of the law are to know where they stand. if it was an official rule that for every new law an old one must be deleted to make way for it, the situation might be controllable. after all, there is a limit to what the machinery can cope with. in my view, that limit has been not merely reached but overrun. what happens then, as with police detection of crime and the enforcement of the criminal law, is that the administrators create their own priority routines. some offences, accorded the lowest priority, are not pursued or investigated: house burglaries, for instance, or minor motoring offences. a large part of the law is de [aao repealed to make way for the new laws. the examples cited above from the sunday times are interesting for another reason. in many of the cases new forms of vicarious responsibility are proposed to ensure that someone pays the penalty for illegal acts. thus, in the case of pollution, company directors and managers may face penalties including prison for offences committed by their companies. and parents would face penalties for 3. a guide to the criminal justice act 1988 (london: 1988), p. vii. 10 atiempting the impossible crimes committed by their children, while dog owners would similarly face penalties for the misdeeds of their animals. these proposals will have some interesting consequences, especially if taken with the recurrent and strident calls for a cutting down on the numbers of the present prison population: would this mean that rapists, burglars and muggers would be released from jail to make room for company directors; juveniles left at home while their fathers serve their sentences; and dog owners would wipe away the stain on society left by their dogs by going to jail for non-payment of their dogs' fines? the impact of all this on the notion of individual responsibility for misbehaviour is considerable. factors which contribute to the success oflaws i have already discussed these in detail in my limits of law. in bare outline these are as follows:acceptability. it is the continuing acceptance of laws by the law-subjects which aids and strengthens the law. laws which cut across the grain of society and make new demands on its members have little chance of success, however draconian the penalties attached to secure compliance with them. this is bad news for the new elitists who seek to impose their vision of a better, or a better-organised, society on those who come within their power. the social engineers, who may (as recent british experience so clearly shows) belong either to the left or the right of politics, wish to remake society in their own image; it is the annoying resistances of ordinary people which impede this process. savigny and the historical school of jurisprudence, who emphasize the dominating influence of the volksgeist (what we might call the national character and traditional mores of a given society) on the pattern of laws in a society, are now generally in disgrace, because they are held to oppose obstacles to the realisation of the new age of compulsory enlightenment. these obstacles are not, however, of their making; and realistic law-givers, who actually wish to secure acceptance and effectiveness of their laws rather than merely to act out their ideological preferences, would do well to recognise this fact. the seat-belt law poses an interesting question for analysis here. what seems to have happened is that there was what we may call a 'tipping' in the attitudes of drivers to the wearing of seat-belts. before, one would have said that most drivers would have resented what they would have seen as an interference with their liberties; after, drivers voluntarily took to belting up as a general rule before driving off. whether this was due to external persuasion, to self-persuasion, or not i cannot tell. bearing in mind, however, the general disregard of so many other more important traffic laws, one suspects that it was most unlikely to be due to the law itself. there is an interesting comparison with the use of dipped headlights when driving in towns. the law, as it stands at present, does not require drivers to use dipped headlights when driving in towns, though the possibility of having such a rule has been considered. but a law to that effect, if that were now introduced, would as a matter of fact be otiose, because drivers almost invariably have adopted the practice of using dipped headlights when driving in towns at night. no law says 11 the denning law journal that they should; the law and practice of other countries may have had some persuasive effect here; perhaps this is an opportunity for a piece of research in what we may term paralegal psychology. education. acceptance largely depends on the people subject to the law acquiring knowledge and understanding of why the behaviour prescribed by the law is advantageous or should be adopted for some other reason, which may be a reason of social morality or justice or prudence. some laws are themselves educative, and seen to be such. we in england do not go as far as some of the codifiers of africa, who have accepted that their new laws will not win immediate compliance but who pin their faith on society coming round eventually to accept and follow the new code. one thinks, for instance, of the ethiopian civil code of 1960, enacted in imperial times, which represented the most advanced legal thinking of its day and interestingly combined features of the french code civile and english common law its primary draftsman, the distinguished french comparatist professor rene david, opined that the code would have little or no immediate influence on behaviour, but might eventually (say, in 100 years!) come into force through a process of education in its aims and provisions. there is now general agreement that the anti-discrimination laws are of this educational kind. it is not so much the penalties as the attitudes which lie behind them which have sunk into the national consciousness and hence contributed to the modifications of behaviour sought by the law. effictiveness of administration. a law which is not applied or effectively administered has little chance of success, unless it corresponds to the way people would behave anyhow. insufficient thought is often (one might say, usually) given to administration problems until years after the introduction of a new law. automaticity of application. this is the ideal to seek for, the self-enforcing law. a law which provides an automatic remedy or penalty is much better than one which depends on human intervention. physical rather than legal restraints. which leads on to our final point: a physical restraint, such as a width gap or a speed ridge in the road, is much more effective than a law, however stringent, in securing compliance. iron bars are a more effective preventative of burglary than any number of theft acts. consider the failure of legal limits on heavy vehicles in towns as compared with the effectiveness of width pillars which narrow the road; and compare the general failure of the pedestrianisation of streets in london in those cases where no physical barrier is interposed to the movement of vehicles. where do we go from here? some people will be profoundly depressed by this analysis, or even tempted to reject it altogether. "after all", they may say, "what alternative is there to law? at least having a law is better than nothing, even if it is ineffective." having an ineffective law is not better than nothing! it is definitely an inferior option if the only result is contempt for or disregard of the law, and this for two good reasons .. 12 atiempting the impossible the first is that unenforced or failed laws weaken, not just themselves, but the whole fabric of legal regulation and the authority of those who propound them; to that extent, ineffective law is a disaster for the civil authority. the second reason is that resort to useless law may inhibit proper effective action of a non-legal character. the trouble is that law is cheap and law is quick; it is so much easier to legislate against sin, crime or other disorder than to rectify the causes of them. one concedes, naturally, that law has a proper place in providing a regulatory framework for effective action: often the civil authority must give itself the power to act. however, the conclusion is short and brutal. the problems of the planet are not being resolved by law. reaching for the legal weapon resembles the bob hope movie where he draws a pistol in a wild west saloon, pulls the trigger, and a flag emerges saying 'bang!' law should be the last and not the first resort. lawyers above all others should know from their experience that the legal system is too fragile and ineffective to bear the weights that agitators ("there should be a law about it!") and legislators ("there is a law about it") would like to place on it. both the civil and the criminal law in this country are now in a state of terminal overload. how nice if for once the new edition of a legal textbook could say that it was shorter than its predecessor! then, at least, we would be progressing in the right direction. 13 55 the denning law journal 2018 vol 30 pp 55-84 assumption of responsibility by public authorities tom cornford * abstract since the house of lords’ decision in the gorringe case, there can be no reason for imposing a duty of care in negligence on a public authority that would not also count as a reason for imposing a duty of care on a private person. in this context assumption of responsibility, as the primary concept used to explain the imposition of a duty of care in novel situations, acquires great importance. this article explores whether the concept’s application to public authorities produces satisfactory results and, finding that it does not, concludes that this underlines the folly of insisting that public authorities must be treated in the same way as private persons. keywords: tort, negligence, assumption of responsibility, public authorities 1 introduction the tort liability of public authorities in english law is sometimes said to be underpinned by “dicey’s equality principle”, the principle that public authorities are to be treated in exactly the same way as private persons. 1 between the house of lords’ decision in anns v merton borough council 2 and its decision in gorringe v calderdale borough council, 3 this assertion was of doubtful accuracy. anns appeared to establish that a body’s subjection to the kind of duty or its possession of the kind of power characteristic of a public authority was a reason (although not a conclusive one) to impose on it a duty of care. the case thus implied the existence of a form of negligence liability special to public authorities and this implication remained a feature of the case law * school of law, university of essex. email: tomc@essex.ac.uk 1 see p cane, ‘damages in public law’ (1999) 9 otago law review 489, 490. 2 [1978] ac 728. 3 [2004] ukhl 15, [2004] 1 wlr 1057. assumption of responsibility by public authorities 56 for a quarter of a century afterwards. in gorringe, however, it was rejected. gorringe is authority for the proposition that the presence of a statutory power or duty is never a reason for imposing a duty of care and the practical effect of this is to return the law to a state in which it approximates dicey’s principle much more closely. one possible response to this turn in the law is to consider it in the context of the wider question of the principle’s legitimacy. critics argue on a variety of grounds that justice demands some specialized form of administrative liability (although this need not, of course, take the form of a specialized variant of the tort of negligence).4 defenders of the present dispensation either approve of dicey’s principle or are pleased to see negligence confined to what they think of as its traditional role of providing redress for the kinds of wrong that private persons are capable of committing.5 a second possible response, however, is to examine in detail how the law of negligence can be made to apply to public authorities once the option of basing a duty of care on a statutory power or duty is removed. this means exploring how a set of concepts developed in order to determine whether there should be a duty of care where the defendant is a private person can be made to do the same where the defendant is a public authority. such concepts apply easily enough, of course, where a public authority performs an act identical in kind to one that might be performed by a private person, as where one of its employees carelessly inflicts physical injury on a member of the public. but their application becomes more difficult where a public authority causes harm by performing acts lacking an obvious private equivalent such as providing or failing to provide welfare services or exercising regulatory powers. a number of supporters of the current law have explored how the concepts in question 4 post-gorringe assertions of this view are to be found in t cornford, towards a public law of tort (aldershot 2008) and the law commission, administrative redress: public bodies and the citizen (law comm cp no 187). dicey’s principle has recently been questioned in s tofaris and s steel, ‘negligence liability for omissions and the police’ (2016) 75 clj 128, 136. 5 notable articles approving of the change in the law wrought by gorringe are s bailey, ‘public authority liability in negligence: the continued search for coherence’ (2006) 26 ls 155 and d nolan, ‘the liability of public authorities for failing to confer benefits’ (2011) 127 lqr 260. gorringe also consorts well with the view of the law promoted by the rights theorists robert stevens and allan beever: see r stevens, torts and rights (oxford 2007) ch 10; a beever, rediscovering the law of negligence (oxford 2007) ch 9. the denning law journal 57 apply to public authorities. 6 their conclusion, or perhaps better, their underlying assumption is that the application of these concepts can produce a body of law that is coherent and in conformity with generally accepted notions of fairness. as a critic of the current law, my view is the reverse: careful examination of the application to public authorities of concepts developed for the purpose of determining the incidence of the duty of care in relation to private persons tends to demonstrate the inadequacy of the current law and the folly of ignoring the public nature of public authorities. detailed consideration of the workability of the concepts currently employed in dealing with public authority cases thus provides another line of attack for those who regard dicey’s equality principle as misconceived and an anachronism. in the present article i adopt this line of attack and since the concept most commonly used in english law for determining the incidence of the duty of care in novel cases involving private persons – and hence also in cases involving public authorities – is assumption of responsibility, i make it my focus.7 the questions i shall seek to address are: firstly, how far can the concept of assumption of responsibility take us in explaining the incidence of the duty of care in cases involving public authorities; and secondly, if it cannot provide a satisfactory rationale for the current case law, might its consistent application provide us with something better. the answer i give to both questions will be negative: the concept does a poor job of explaining the existing law and if one were to try to create a better case law by applying it with rigour and consistency the result would be a body of law in which the incidence of the duty of care would be far more extensive than anything envisaged by the concept’s proponents but which at the same time contained glaring inconsistencies. far from providing a workable alternative to the previous practice of basing a duty of care on statutory powers or duties, i shall suggest, the attempt to make use of assumption of responsibility tends to point us back towards forms of liability that explicitly acknowledge the public nature of public authorities. 6 see for example nolan (n 5); r bagshaw and n mcbride, tort law (4th ed, harlow 2012). 7 i believe similar arguments to those i shall make in relation to assumption of responsibility can be made in relation to other concepts intended to apply indifferently to both private and public defendants in determining the incidence of the duty of care: see further (n 87). space precludes examination of these concepts. assumption of responsibility by public authorities 58 the plan of the article is as follows. firstly, i attempt to sum up in a few propositions the current state of the law on the negligence liability of public authorities. secondly, i define how i shall be using the expression “assumption of responsibility” in the rest of the article. thirdly, i examine the application of the concept to a variety of types of public authority activity. in doing so, i consider both its capacity to explain the existing pattern of outcomes and its potential usefulness in creating a more defensible pattern of outcomes. fourthly, i conclude in the terms outlined above. 2 the negligence liability of public authorities: the current state of the law the current state of the law can, i believe, be summed up in a few propositions. the first does not pertain specifically to negligence but forms a general background and is worth stating for that reason. this is that english law contains no general principle of administrative liability; or, in other words, there is no general principle that entitles an individual to damages where unlawful administrative action causes that individual harm.8 the second is that the existence of a duty of care in negligence can never be based simply on the fact that a public authority possesses a particular statutory power or is subject to a particular statutory duty.9 this proposition is usually expressed, as i have done, by reference to statutory powers and duties but could perhaps be extended so as to encompass the case in which an authority – for example a servant of the crown or a police officer – has public law powers or duties that are not statutory in origin. the proposition would then be that an authority’s public law powers and duties do not, without more, give rise to a private law duty of care.10 8 more or less explicit statements to this effect are to be found from lord wilberforce in hoffman-la-roche v secretary of state for trade [1975] ac 295 [358-59] and more recently by sedley lj in mohammed and others v home office [2011] ewca civ 351; [2011] 1 wlr 2862 [61]. for a general overview of the obstacles to gaining reparation for harms done by public authorities see the law commission (n 4) especially pt 4. 9 gorringe (n 3) especially [32] (lord hoffmann), [71] (lord scott). 10 there is no authority to either support or undermine this more general, nonstatutory form of the proposition, however. the denning law journal 59 the third proposition is that a public authority may, nonetheless, owe a duty of care in those circumstances in which a private person analogously placed would do so.11 an authority may thus owe a duty of care when performing a function that, according to established case law, gives rise to a duty of care when performed by a private person; or where its actions satisfy the threefold caparo test in circumstances in which a private person performing the same actions would do so; and it may also do so if it can be said to have assumed a responsibility towards the claimant.12 the fourth proposition is that where there are arguable grounds for finding a duty of care, the putative duty should be excluded if it would be in conflict with other duties to which the defendant public authority is subject. this general proposition can be analyzed in turn into two subpropositions, of which one corresponds to a general tendency while the other represents a strict rule. the first sub-proposition concerns cases in which the proposed duty of care would be a duty vis-a-vis the claimant to deliver the benefit that the defendant authority is under a public law duty to deliver to members of the public generally. in such cases, the tendency is to say that a duty of care should be excluded because it might conflict with the authority’s ability to perform its duties to the public as a whole.13 the second sub-proposition is that where an authority possesses a power for the purpose of protecting some particular class of person it is inappropriate to impose a duty of care towards some other class of person who might be harmed by the power’s exercise. this type of argument is 11 this has been the law at least since mersey docks and harbour board v gibbs (1866) lr 1 hl 93. 12 see further below. 13 so, for example, the exclusionary rule enunciated in hill v chief constable of west yorkshire [1989] ac 53 excludes a duty of care on the part of the police towards potential victims of crime on the ground that this would interfere with the wider duties they owe to the public as a whole. since the overruling of the ecthr’s judgment in osman v uk (2000) 29 ehrr 245, [1999] flr 193, the rule in hill has been reasserted in a number of other cases, for example: brooks v metropolitan police commissioner [2005] ukhl 24, [2005] 1 wlr 1495; smith v chief constable of sussex police [2008] ukhl 50, [2009] 1 ac 225; an informer v chief constable [2012] ewca civ 197, [2013] qb 579; michael v chief constable of south wales police [2015] uksc 2, [2015] 2 wlr 343. for instances of the application of the first sub-proposition outside the police context, see: mitchell v glasgow city council [2009] ukhl 11, [2009] ac 874; x v hounslow london borough council [2009] ewca civ 286, [2010] hlr 4. assumption of responsibility by public authorities 60 foreshadowed in a number of earlier decisions14 but attains the status of a general rule in jain v trent strategic health authority15 where lord scott (with whom the other members of the house agreed) said the following: “...where action is taken by a state authority under statutory powers designed for the benefit or protection of a particular class of persons, a tortious duty of care will not be held to be owed by the state authority to others whose interests may be adversely affected by an exercise of the statutory power. the reason is that the imposition of such a duty would or might inhibit the exercise of the statutory powers and be potentially adverse to the interests of the class of persons the powers were designed to benefit or protect, thereby putting at risk the achievement of their statutory purpose.”16 the fifth proposition is that a duty of care on the part of a public authority may also be excluded on policy grounds other than those mentioned in connection with the fourth proposition. the fourth proposition concerns the theoretical compatibility of public and private law duties. the fifth proposition concerns the effects of a duty of care on the practical ability of a public authority to fulfil its duties. the policy consideration typically falling under this head is that imposition of a duty of care will lead to overkill or defensive practice and thus inhibit an authority’s ability to carry out its wider duties. since the osman case, the courts have greatly reduced their reliance on such considerations in the face of the criticism that they were being used in blanket fashion and without adequate evidence. 17 nonetheless, they have not disappeared 14 eg caparo v dickman [1990] 2 ac 605; harris v evans [1998] 1 wlr 1285; reeman v department of transport [1997] 2 lloyd’s rep 648; d v east berkshire community health nhs trust [2005] ukhl 23, [2005] 2 ac 373. 15 [2009] ukhl 4, [2009] 2 wlr 248. the conflict here was between the defendant authority’s duty to protect residents of care homes and the duty of care alleged to be owed to the claimant care home owners. 16 ibid [28]. 17 osman v uk (2000) 29 ehrr 245, [1999] flr 193. the criticisms made of the english courts in this regard by the ecthr in the osman case appears to have had a lasting effect despite its later overruling. on the turn from policy considerations to substantive legal rules as a way of controlling liability in cases of public authority negligence see c booth and d squires, the negligence liability of public authorities (oxford 2006) ch 4 especially 4.06, 4.95-98. the denning law journal 61 altogether from the case law as cases on “the hill immunity” in relation to police work show.18 to the propositions i have just described, one can also add what i shall call “the background premise.” this is that the private law principles that determine the incidence of the duty of care in negligence can never be so extended as to require or justify the imposition of a duty of care in relation to the most purely public law functions of public authorities, those involving the exercise of powers to determine the rights or entitlements of citizens. 19 as the name i have given it implies, the background premise is generally assumed to be so obvious as not to need stating.20 as a result, no justification is ever offered for it but, as i shall argue below, it is not at all clear that it can be justified. lastly, before passing on to consider the concept of assumption of responsibility, one more feature of the case law is worth considering, the existence of a strong dissident strain of authority. from the time of anns onward, an influential minority of judges lords wilberforce, 21 bingham,22 woolf23 and to a lesser extent lords nicholls,24 slynn25 and 18 see further below. 19 in the typology below of types of public authority to case in relation to which assumption of responsibility might apply, i call these “legal determination” cases. 20 an indicator of the existence of the premise in the case law is the tendency in the pre-gorringe case law – not altogether extinguished to adopt barriers to liability that distinguish sharply between the public and private parts of a public authorities functions: the policy/operations distinction; the requirements that an act be ultra vires or justiciable before liability can arise. in reform proposals the premise is reflected in the idea that two kinds of public authority liability are required, one belonging to private and the other to public law: see administrative justice: some necessary reforms report of the committee of the justice-all souls review of administrative law in the uk (1988) ch 11; the law commission (n 4) pt 4. 21 in anns itself and see his remarks in hoffmann-la roche (n 8) [358-59]. 22 see his lordship’s judgment in the court of appeal in x v bedfordshire [1995] ac 633 above and his dissenting judgments in d v east berkshire [2005] ukhl 23, [2005] 2 ac 373 and smith v chief constable of sussex (n 13). 23 see larner v solihull metropolitan borough council [2001] rtr 32 above, kent v griffiths [2001] qb 36 (ca). 24 see his lordship’s dissenting judgment in stovin v wise [1996] ac 923 (hl). his lordship seems to have recanted somewhat in d v east berkshire (n 14). 25 see barrett v enfield lbc [1999] 3 wlr 79 (hl) and phelps v hillingdon lbc [2000] 3 wlr 776. assumption of responsibility by public authorities 62 steyn26 – has persistently argued in favour of an expanded liability. their reasons for doing so have not always been made explicit but they are well expressed by lord bingham in an article of 2010:27 “...if a member of the public whom a public service exists to serve suffers significant injury or loss through the culpable fault or reprehensible failure of that service to act as it should, is it not consistent with ethical and, perhaps, democratic principle that the many, responsible for funding the service, should bear the cost of compensating the victim?” this way of thinking involves an explicit rejection of the second proposition set out above. that it persists can be seen in the judgment of the minority in the recent michael case,28 considered further below. in the rest of this article, i shall refer to the principle enunciated by lord bingham as “the bingham principle”. 3 assumption of responsibility the most strenuous attempts to define assumption of responsibility are found not in the case law but in the work of commentators. since the commentators who go to such lengths to define the concept also believe that its application – and that of cognate notions – to cases involving public authorities can produce a satisfactory law of public authority negligence liability, it is worth briefly reviewing these attempts at definition.29 on certain points, they are in accord. they agree that in order 26 see his lordship’s concordant but more pro-liability speech in gorringe. 27 lord bingham, ‘the uses of tort law’ (2010) 1 jetl 3. 28 michael v chief constable of south wales police [2015] uksc 2, [2015] 2 wlr 343. 29 the commentators whose views i discuss here are: n mcbride and a hughes, ‘hedley byrne in the house of lords: an interpretation’ (1995) 15 ls 376; r bagshaw, ‘the duties of care of emergency service providers’ [1999] lmclq 71; r stevens (n 5); d nolan (n 5); r bagshaw and n mcbride (n 6). to avoid the confusions associated with the expression “assumption of responsibility”, use of it is avoided in the article by mcbride and hughes and in bagshaw and mcbride’s book. for the sake of convenience, i overlook this nuance here. in each work, a principle is advanced that is intended to explain some, at least, of the decisions in which the courts used the expression. the denning law journal 63 to assume responsibility, the defendant must perform some positive act.30 they agree too that the question of whether or not the defendant has assumed a responsibility toward the claimant is an objective one i.e. that the existence of an assumption of responsibility does not depend on there being an intention on the defendant’s part to incur an obligation – legal or otherwise – towards the claimant. a corollary of this is that, while the judges in hedley byrne and in some other early cases talked of voluntary assumption of responsibility, assumption of responsibility is now taken to be voluntary in only a very restricted sense.31 the differences between the various accounts of the concept relate to the question of whether or not there must be explicit dealings or “mutuality” between defendant and claimant and whether it is necessary for the claimant to have relied on the defendant’s undertaking. a number of writers have insisted that mutuality and reliance are not prerequisites of assumption of responsibility. they are not, however, in precise agreement as to what are prerequisites. stevens states that “[t]he foreseeable possibility of detriment, whether by reliance of the claimant or a third party, is relevant and will commonly be decisive in determining whether, as a matter of construction, the defendant has by his actions implicitly assumed responsibility towards the claimant.”32 nolan appears to follow him in this. 33 mcbride and hughes 34 and bagshaw 35 emphasize a 30 cf lord hoffmann in customs and excise commissioners v barclays bank [2006] ukhl 28, [2007] 1 ac 181 [38]: “the notion of assumption of responsibility serves a … useful purpose in drawing attention to the fact that a duty of care is ordinarily generated by something which the defendant has decided to do”. 31 as nolan puts it, “[t]he better view, which was expressed by lord walker of gestingthorpe in the customs and excise commissioners case, is that the undertaking is voluntary because it is ‘conscious’, ‘considered’ or ‘deliberate’”. see ‘the liability of public authorities for failing to confer benefits’ (n 5) 283 and customs and excise commissioners v barclays bank plc (n 30) [73]. 32 stevens (n 5) 14. 33 nolan (n 5) 281. a similar view of assumption of responsibility appears also to be taken by allan beever (n 5) ch 8. 34 see mcbride and hughes (n 29) 284: “[t]he defendant has accepted power over the plaintiff knowing that he is expected to use reasonable care and skill in exercising that power. he has failed to do so and the plaintiff has suffered loss as a result.” i assume that the defendant having power over the claimant entails dependence on the part of the claimant. 35 bagshaw ‘the duties of care’ (n 29) 77: “at the very least the defendant must undertake a task which he holds himself out as having special skill and assumption of responsibility by public authorities 64 combination of dependence on the part of the claimant and skill and knowledge of the claimant’s dependence on the part of the defendant. bagshaw, stevens and nolan all point, as illustrating the absence of the need for reliance, to the example of the doctor who comes to the aid of an unconscious patient. the doctor assumes responsibility for treating the patient with reasonable care despite the patient being in no position to consciously rely on the treatment. a principle significantly different from any of those discussed in the previous paragraph has been advanced by bagshaw and mcbride in their text book. this is that “if a has indicated to b that b can safely rely on him to perform a particular task with a certain degree of care and skill and b has so relied on a, a will owe b a duty to perform that task with that degree of care and skill”.36 here actual reliance is central. since, however, this principle can explain only a small proportion of the cases in which assumption of responsibility is invoked, the authors set out a number of other principles to explain the remaining cases. the most important of these is a principle of “severe dependency”.37 this states that “if a knows that b’s future will be ruined if he does a positive act x, then a will owe b a duty to take care not to do x”.38 the authors use it to explain spring v guardian assurance,39 phelps v hillingdon lbc40 and smith v eric s bush,41 and also what they call cases of “business sterilisation”. these are cases in which the defendant acts in such a way as to cause the foreseeable destruction of the claimant’s business and may occur where the defendant is a regulatory authority able to damage the claimant by the competence to undertake, and the task must be one which he knows the plaintiff is dependent on being done with reasonable skill and competence.” 36 bagshaw and mcbride tort law (n 6) 180. this is what the authors call “the extended principle in hedley byrne” as opposed to “the basic principle in hedley byrne”, set out at 175, which relates purely to advice. the former presumably includes or implies the latter. 37 other principles proposed by bagshaw and mcbride (n 6) 200-06) are a principle of liability for negligent intermeddling, invoked to explain white v jones [1995] 2 ac 207, a principle of liability for expenses incurred as a result of putting property in danger, invoked to explain the greystoke castle [1947] ac 265, and a principle of liability for interfering with intangible property, invoked to explain minister of housing and local government v sharp [1970] 2 qb 223. 38 ibid 97. 39 [1995] 2 ac 296. 40 n 35. 41 smith v eric s bush, harris v wyre forest dc [1990] 1 ac 831. the denning law journal 65 use of its coercive powers42 or where the defendant is a private person able to harm the claimant by other means.43 in sum, these attempts to make sense of the case law in which the concept of assumption of responsibility is used yields two types of principle. the first requires explicit dealing and mutuality between the parties. the second does not but requires instead foreseeable detriment flowing from the reliance of the claimant or a third party or a combination of dependence on the part of the claimant with knowledge of that dependence on the part of the defendant. all the versions i have described of these principles require a positive act and the assertion of some knowledge or skill on the part of the defendant and take the question of whether there is an assumption of responsibility to be an objective one in the sense explained above. from the point of view of the argument i wish to make in this article, it is the elements that these different competing conceptions of assumption of responsibility have in common that are important. little turns on the differences, which all concern the extent to which the defendant can he held to have assumed a responsibility towards parties with whom she has no direct dealings or of whom she has limited knowledge.44 at the same time, the more wide-ranging and the greater the explanatory power of the version of the concept i adopt, the more convincingly will my argument (if successful) achieve its aim of demonstrating the concept’s unsuitedness to determining the incidence of the duty of care in relation to public authorities. i therefore, and at the risk of solecism, propose to use the expression “assumption of responsibility” as an umbrella term covering all the principles and sub-principles i have described in this section. a further question concerns the relationship between assumption of responsibility and policy considerations limiting the incidence of the duty 42 as in harris v evans (n 14) or jain v trent strategic health authority (n 15). 43 as in the australian case of perre v apand pty ltd (1999) 198 clr 180 where the defendant sold diseased potato seeds to farmers whose farm was close to the claimants’ potato farm with the result that the claimants’ potatoes fell foul of a legal prohibition on the sale of potatoes from an area where there were diseased potatoes. the claimants sued successfully on the basis of the economic loss they suffered. 44 nearly every application of the concept i consider below is consistent with the requirement that there be direct dealings between the parties. in the only one that is not – minister for housing and local government v sharp (n 37) – the defendant had direct dealings with a third party in the knowledge that careless performance of the task he had undertaken would harm the claimant. assumption of responsibility by public authorities 66 of care. on the one hand, the finding of an assumption of responsibility is sometimes taken to obviate the need to consider questions of policy and hence to satisfy by itself the fair, just and reasonable limb of the caparo test.45 on the other hand, in some cases, notably those concerning the duties of the police towards members of the public, the existence of an assumption of responsibility is treated as an indicator in favour of a duty of care than can be outweighed by contrary policy considerations.46 the commentators who have insisted most strongly on the meaningfulness of the family of concepts i have grouped together under the title “assumption of responsibility” do so because they think policy considerations have no place in the law of negligence. on the basis of the strategy enunciated above of adopting the form of the concept with the greatest explanatory power, however, i shall treat the presence of an assumption of responsibility as an indicator in favour of liability capable of being overridden both by the consequential factors usually referred to as policy considerations and by the restrictive principles in the fourth proposition described in section i above. finally, it has been argued, notably by barker, that the courts use different versions of the concept of assumption of responsibility, no one of which is capable of explaining all the cases, and switch back and forth between them as a way of accommodating concealed policy concerns.47 in the light of this, it might be objected that there is no point in examining the application of the concept to public authorities since it cannot even explain the cases in which it is used in relation to private defendants. there are two answers to this objection. the first is that by adopting the position that there is an assumption of responsibility where any one of the proposed tests is satisfied, i avoid the problem that arises where the courts speak of the concept as if it were a unitary one while meaning different things by it on different occasions. the second concerns the formalism or conceptualism of the current law. as i have suggested above, the current 45 see henderson v merrett syndicates [1995] 2 ac 145 [181d] (lord goff); brooks v metropolitan police commissioner (n 13) [29] (lord steyn). 46 see the cases referred to at notes 48-51. 47 see k barker, ‘unreliable assumptions in the law of negligence’ (1993) 109 lqr 461; k barker, ‘wielding occam’s razor: pruning strategies for economic loss’ (2006) 26 ojls 289. this implies, of course, that the concept of assumption of responsibility is not really distinct from the broader concept of proximity. many dicta suggesting this are to be found in the case law. more recent academic assertions of this view are to be found in k barker, r grantham and w swain (eds), the law of misstatements: 50 years on from hedley byrne v heller (hart, 2015). the denning law journal 67 approach of the courts to the negligence liability of public authorities substitutes conceptual barriers to duties of care for the policy based barriers that were more common in the pre-gorringe case law. at the same time, the supporters of this change in the law propose a highly conceptual or formalistic method for determining the incidence of the duty of care in relation to public authorities via the use of concepts such as assumption of responsibility. if this approach can be shown not to succeed in its own terms, then the unsatisfactory nature of the current law will be exposed, notwithstanding the concept’s disutility in the kinds of case in which it was originally developed. 4 the application of the concept of assumption of responsibility to public authorities i turn then to consider how the concept of assumption of responsibility can be applied to various types of case involving public authorities. the types i shall consider are (as i shall call them) protection cases, cases involving the giving of advice or information, rescue cases, professional cases and cases involving legal determination of the rights or entitlements of private persons. the meaning of these categories will become clearer below. i arrange them according to how successfully the concept of assumption of responsibility can be applied beginning with those to which it can be applied most successfully and ending with those to which it can be applied least successfully. two difficulties that arise from the attempt to apply the concept of assumption of responsibility are worth outlining in general terms before examining the particular types of case. the first concerns omissions. as we have seen, it is a requirement of the concept that, in order to incur a duty of care, a defendant must perform some positive act that brings her into a relationship with the claimant. when this requirement is applied to public authorities, however, it tends to produce unsatisfactory results. where the defendant is a private person, it makes sense to subject her to a duty where she positively undertakes to assist the claimant and not to subject her to a duty where she makes no such positive undertaking. where the defendant is a public authority which exists to serve a citizen, to draw a distinction between the case in which the authority makes some positive undertaking and the case in which it does not may make less sense. as a matter of public law or of moral obligation, the authority may be under an obligation in both cases and to insist on the distinction when making a decision as to when to order the payment of compensation may assumption of responsibility by public authorities 68 lead to a pattern of decisions that would strike most people as indefensible. the second difficulty arises from the need to distinguish the class of cases in which a public authority may be held to have assumed a responsibility to the claimant from the class of cases in which a public authority causes harm to a citizen or citizens by the failure to exercise its powers properly. we may think of the latter class of cases as defined by the bingham principle i.e. as being the class of cases in which a member of the public whom a public service exists to serve suffers significant injury or loss through the culpable fault or reprehensible failure of that service to act as it should. the bingham principle does not represent the law. as described above, this discourages the finding of a duty of care in relation to most public authority functions. one would thus expect that the class of cases in which a public authority could be held to have assumed responsibility toward the claimant would be a much smaller one than the class of cases defined by the bingham principle. but it is not so simple in practice. a public service, to use lord bingham’s terminology, exists to serve a citizen. where it fails reprehensibly to act as it should and thereby causes loss to the citizen, the law presently puts considerable obstacles in the way of any claim to compensation based on negligence. most importantly, as per proposition two above, the fact that the service exists to provide a service to a citizen – that it has statutory powers that enable it to do so and is subject to statutory target duties that require it to do so – cannot be a reason for imposing a duty of care. yet if a person becomes subject to a duty of care where she purports to be able to perform a task with skill and knows that another is likely to depend on her so performing the task or where she indicates to another that the other can safely rely on her performing a task with skill and the other does so rely, then public authorities must very often be subject to duties of care even and especially where the task they are performing is the one that they exist to perform. the doctrine of assumption of responsibility may thus require a duty of care in exactly the circumstances in which the wider framework governing the negligence liability of public authorities discourages it. 4.1 protection cases i begin with what is really a residual class of cases. it consists of cases in which a public authority is or is alleged to be under an obligation to protect citizens from some – usually physical danger to their safety. it is distinct from what i call below “professional cases” in that the public authority employees involved are not usually professionals; and from the denning law journal 69 what i call below “rescue cases” in that the authority in question is not apprised of the danger at exactly the moment that it is about to occur. into this class fall many types of police case, for example: cases in which the police are aware of the activities of a criminal who poses a threat to members of the category of persons to which the claimant belongs;48 cases in which the police are aware of a specific threat to the claimant’s safety from a particular person;49 cases in which the claimant is a witness and the police are alleged to owe a duty to take care to conceal her identity and to protect her from violence;50 cases in which the claimant is a suspect and the police or prosecuting authorities are alleged to owe a duty to take care in investigating the case against him.51 into this class also fall a wide variety of other types of case, for example: cases in which highway authorities are alleged to owe a duty of care to members of the public to avert dangers on the road;52 cases in which local authorities are alleged to owe duties to protect their tenants from the depredations of other tenants or neighbours; 53 cases in which health authorities are alleged to owe duties to protect members of the public from infection.54 for cases which fall into this residual class, the notion of assumption of responsibility does appear to provide a rationale for imposing a duty of care in some cases and not others. to take the police cases referred to, for example, the idea that the police assume a responsibility towards witnesses or informants but not towards members of the public potentially endangered by the presence at large of a criminal provides an explanation of why there should be a duty of care in the former cases but not in the latter. cases in which the police fail to protect an individual from the threat of a particular known individual occupy a point on the spectrum between the two types of case referred to in the previous sentence and are 48 hill v chief constable of west yorkshire (n 13). 49 osman v ferguson [1993] 4 all er 344 (ca); van colle v chief constable of the hertfordshire police [2008] ukhl 50, [2009] ac 225. 50 swinney v chief constable of northumbria police force [1997] qb 464 (ca). 51 welsh v chief constable of the merseyside police [1993] 1 all er 692; elguzouli-daf v commissioner of police of the metropolis [1995] qb 335; brooks v metropolitan police commissioner (n 13). 52 stovin v wise (n 24); gorringe (n 3). 53 mitchell v glasgow city council, x v hounslow london borough council, both (n 13). 54 furnell and another v flaherty (trading as goldstone farm)(health protection agency and another, part 20 defendants) [2013] ewhc 377 (qb), [2013] ptsr d20. assumption of responsibility by public authorities 70 for that reason especially contentious.55 it would seem very plausible to ascribe to a police force which is apprised of and takes some steps to protect a claimant from a threat from a particular known individual an assumption of responsibility towards the claimant. in the light of this, the finding that no duty of care is owed in such cases can only be explained by reference to the supposed conflict between the putative duty of care and the police’s other obligations. 4.2 information cases another category in relation to which assumption of responsibility appears to serve reasonably well as a mechanism for determining the incidence of the duty of care comprises cases in which a public authority has power to give advice or information to a citizen and chooses to do so. for example, in t v surrey county council 56 the defendant authority kept the name of a particular child minder on the register of child minders it was obliged by law to maintain. t’s mother left t in the care of the child minder after having sought and received assurances from an employee of the authority that the child minder was to be trusted. in fact, on a previous occasion, the child minder had caused injury to a child by violent shaking and did the same to t. the court held that although the purpose of the governing legislation was to ensure that only persons who were fit to act as child minders should be registered, it did not give rise to duties to any individuals who might rely on the register. the giving of specific assurances by the authority to t’s mother was, however, capable of giving rise to a duty of care and the assurances constituted negligence misstatement. here the notion of assumption of responsibility (or its cognate, negligent misstatement) makes it possible to pick out a particular act of the authority as attracting a duty of care where its other related activity does not. there is a fine line, however, between cases in which an authority merely has a power to give information to a specific individual and cases in which, by doing so, it changes the legal position of the individual concerned. as we shall see below, the use of assumption of responsibility in relation to the latter is more problematic. 55 note, in this respect, the dissenting judgment of lord bingham in van colle (n 49). 56 [1994] 4 all er 448. the denning law journal 71 4.3 rescue cases at time of writing the four leading judgments in rescue cases in english law are capital and counties plc v hampshire cc,57 oll ltd v secretary of state for transport, 58 kent v griffiths,59 and the more recent michael and others v chief constable of south wales police.60 in capital and counties, the court of appeal heard appeals in four cases in which the fire brigade had been called to fires and failed to put them out. oll concerned the mismanagement by the coastguard of an attempted rescue of a party of schoolchildren who had got into trouble at sea. kent concerned the calling of an ambulance whose late arrival led to the claimant suffering injuries that she would have avoided if the ambulance had arrived timeously. in michael, a telephone call to the police from a woman in danger of imminent violence was wrongly classified with the result that the police arrived too late to save her life. the role actually played by assumption of responsibility in the court’s judgment in each of these cases is fairly limited. the question i wish to address, however, is whether the concept can be used nonetheless to explain the pattern of outcomes that occurred. donal nolan has attempted to rationalise the differing outcomes of rescue cases concerning the ambulance service, fire brigade and police using a conception of assumption of responsibility as involving the voluntary acceptance of an obligation by the defendant combined with the foreseeable possibility of detrimental reliance on the part of the claimant.61 on this view, the reason why there is an assumption of responsibility and hence a duty of care when an injured person summons an ambulance but none where the fire brigade is summoned to put out a fire or the police are summoned to the scene of an emergency is that a person who summons an ambulance is likely to renounce the alternative means of transport available to her whereas a person who summons the other emergency services is likely to have no other means of assistance to renounce. the paradoxical consequence of this reasoning, however, is that the more absolutely dependent a citizen is on the protection provided by a public authority, the less likely the authority is to owe her a duty of care. 62 it would 57 [1997] qb 1004 (ca). 58 [1997] 3 all er 897 (qb). 59 [2001] qb 36, [2000] 2 wlr 1158 (ca). 60 [2015] uksc 2, [2015] 2 wlr 343. 61 nolan (n 5) 281. 62 cf n mcbride, ‘michael and the future of tort law’ (2016) 32 pn 14-31. assumption of responsibility by public authorities 72 presumably mean, for example, that someone who lived on a remote island and who could only be brought to hospital by air ambulance would be owed no duty of care if she called the ambulance service whereas if she lived in a busy town and called the ambulance service, she would be owed a duty. on the most plausible interpretation of how assumption of responsibility should apply to rescue services, i suggest, all the services i have referred to would be held to have assumed a responsibility and hence to owe a duty of care upon acceptance of an emergency call. any person who calls one of these services in an emergency is likely to rely on the service and if a call is made on a person’s behalf and she is unaware of it (as happens, for example, if a third party makes a call to the ambulance service to rescue an unconscious person), she is very likely to depend on the service fulfilling its function with reasonable care.63 this leads us naturally to question whether this is a satisfactory pattern of outcomes? policy fears about the supposed strain on the rescue services aside, i suggest it is; but with one important caveat. as noted above, however one interprets assumption of responsibility, it seems to require that the defendant perform some positive act that can be treated as constituting acceptance of an obligation towards the claimant. in rescue cases, given the general expectation that rescue services will attempt to assist people who ask for their help, the acceptance of the call for help will usually be enough to constitute such a positive act. but suppose a service’s phone operator does not answer the call or tells the caller that no assistance will be forthcoming in circumstances where it is quite unreasonable to do so, for example where the service in question is the fire brigade and is perfectly capable of coming to the caller’s aid and has at the time in question no competing demands for its assistance.64 suppose further that the caller suffers harm that would probably have been avoided if the fire brigade has attended the fire. it makes no sense, i suggest, to differentiate a case such as this by denying the existence of a duty of care if one would be found in the case in which the phone operator allowed the caller to believe that the fire brigade would attend. 63 even if we accept the argument that the fire brigade should not be under a duty to answer emergency calls because this duty would conflict with its wider obligations, we are nonetheless left with a pattern other than the actual one. 64 cf d brodie, ‘public authority liability: the scottish approach’ (2007) 11 edin lr 254, 256. the denning law journal 73 4.4 professional cases the offer of help – explicit or implicit – to a member of the public by a qualified professional is the paradigm example of assumption of responsibility. for this reason, one would expect the concept to apply most easily in those cases in which the claimant’s complaint against a public authority can be treated as a complaint about the failure of a professional person employed by the authority to provide the relevant service. this expectation is, to some extent, borne out by the case law. bodies within the nhs can be held vicariously liable for the failure of the doctors working for them to provide the treatment expected; 65 local authorities can be held liable for the negligent misstatements of the surveyors they employ;66 and education authorities can be held liable for the failure of the teachers and educational psychologists they employ to respectively provide adequate education or correct diagnosis for children with special educational needs.67 it is arguable also that local authorities can be held liable for the omissions of the professionals they employ in the field of child protection.68 a difficulty with the idea that public authorities can be held vicariously liable for the acts of professionals they employ is that it, too, can produce obvious anomalies. where a local education authority or the social services department of a local authority causes harm to children, it may be because the professionals who work for the authority have failed in their professional duty – the head master of a school may have failed to provide a child with appropriate education, social workers may have failed to take the steps necessary to remove a child from abusive parents – but it may also be because of failings that are administrative rather than professional in nature and cannot be ascribed to any particular individual. so, for example, a badly run education authority might fail through simple administrative incompetence to make the arrangements necessary to assist a child who needs home schooling or the social services department may have been informed that a child needs its help but, again, through administrative incompetence – because there is a rapid turnover of staff, because files are lost and letters or emails left unopened – may have failed to take the necessary steps. it would be hard to justify making a finding of 65 barnett v chelsea and kensington hospital management committee [1969] 1 qb 428 (qb). 66 smith v eric s bush [1990] 1 ac 831 (hl). 67 phelps v hillingdon london borough council (n 25). 68 see d v east berkshire community health nhs trust (n 14). assumption of responsibility by public authorities 74 liability in the cases that conformed to the model of vicarious liability for failings of professionals while denying it in the cases where the causes of harm were of the administrative type.69 this problem can be avoided if we take the view that professional liability is only a special case of assumption of responsibility. we can then say that the authorities that employ professionals assume a responsibility toward the persons whom they aim to assist. this solution brings us back to the problem of omissions, however. as noted above, assumption of responsibility, however interpreted, requires some sort of positive act on the part of the defendant and yet some of those failures on the part of authorities to provide expected services that cannot be ascribed to identifiable professionals will also be cases of pure omission. consider again, for instance, the example of the social services department given information about a child in danger which fails through sheer administrative incompetence to act timeously. in such a case, the defendant authority may never make towards the child a gesture that could be interpreted as an assumption of responsibility and yet, to refuse liability in this case while finding it in another in which a similar failure is preceded by such a gesture would be, again, to make an indefensible suggestion. 4.5 legal determination cases cases which involve the making of legal determinations by public authorities as to the rights or entitlements of private persons and in which the question of tortious liability arises are rare, but they exist. one such is the well-known maguire case70 in which the claimants fitted out vehicles for use as taxis in reliance on a policy promulgated by the local authority but were then denied the licences necessary to operate the taxis when the policy turned out to be unlawful. another is the banks case71 in which the claimant was a farmer who suffered financial loss when the secretary of state made his herd the subject of a movement restriction order on the basis of a fact-finding process vitiated by procedural impropriety. a third example is the jain case referred to above where the claimants were the proprietors of a care home who suffered the ruination of their business after the defendant health authority obtained an ex parte court order 69 cf booth and squires (n 17) 9.102-9.110. 70 r v knowsley mbc, ex p maguire (1992) 90 lgr 653. 71 banks v secretary of state for environment, food and rural affairs [2004] ewhc 416, [2004] npc 43. the denning law journal 75 cancelling the home’s registration on the basis of inaccurate information.72 it might be thought that in relation to cases of this sort, the concept of assumption of responsibility had no relevance at all. legal determinations are the purest form of exercise of public law power and it is widely supposed that the functions they involve are too unlike the activities undertaken by private persons for it to be possible for negligence to have any application. 73 since assumption of responsibility is a concept belonging to the law of negligence, it too is supposed to have no place in legal determination cases. assumption of responsibility would thus appear to be relevant only in the sense that there was a kind of negative correlation: there is never assumption of responsibility in such cases and, correspondingly, there is never a duty of care. for two reasons, this appearance is misleading however. firstly, one can make a strong case that wherever a public authority makes a legal determination with respect to the rights or entitlements of a particular citizen, it assumes a responsibility towards that citizen. all the necessary elements are there: the authority acts positively with respect to the citizen; the citizen will commonly be reliant or dependent for some aspect of her welfare on the authority’s act, or both: and the citizen will be aware of this reliance or dependency. in most such cases, moreover, the authority’s act can be seen as involving a representation as to the authority’s power to perform the act, a representation which amounts to a species of negligent misstatement where it turns out to be false. so in maguire, for example, the authority gave the false impression to the claimants that they would receive taxi licences and they suffered loss as a result while in banks, the claimant was led to believe that his herd was subject to a valid movement restriction order when it was not and suffered loss as a result. secondly, parties have attempted to invoke assumption of responsibility in a number of cases involving the making of legal determinations by public authorities and while the argument has been rejected in some cases it has been accepted in others.74 an early example 72 n 15. 73 this supposition is an expression of what i called in section i above “the background premise”. 74 cases in which the argument has been made and rejected are: w v home office [1997] imm ar 302; rowley v secretary of state for work and pensions [2007] ewca civ 598, [2007] 1 wlr 2861; st john poulton’s trustee in bankruptcy v minister of justice [2010] ewca civ 392, [2011] ch 1. in addition to the cases assumption of responsibility by public authorities 76 of a case where the argument succeeded is ministry of housing and local government v sharp. 75 this involved a scheme whereby persons who suffered loss as a result of the denial of planning permission were paid compensation. if permission were later granted the developer had to repay the compensation to the ministry and this obligation was recorded on the local charges register as a local land charge. under the governing legislation, the registrar of local charges was the clerk to the relevant local authority. it was his duty to register the charge and where an official search was requisitioned, to produce a certificate indicating the charge’s existence. the facts were that an owner of land subject to such a charge obtained planning permission and sold the land to a developer. prior to the sale, the developer’s solicitor requisitioned a search of the local charges register but due to the negligence of a clerk in the registry, the resulting certificate made no reference to the charge. as the court of appeal held, the certificate was conclusive as against the ministry and the developer was thus able to avoid having to pay back the compensation. the ministry sued the local registrar, sharp, and his employer, the local authority, for breach of statutory duty and negligence. the members of the court of appeal were not able to agree as to whether an action lay for breach of statutory duty – lord denning mr thought it did while salmon and cross ljj thought it did not – but they were able to agree that sharp was liable for negligent misstatement on the principle of hedley byrne and his employer, the local authority, conceded that it was vicariously liable. the case provides a good illustration of the fine line between the situation in which an authority causes loss by giving out erroneous information (discussed above under the heading “information cases”) and the situation in which an authority harms a person by the improper or careless exercise of its power to determine legal rights or entitlements. it is easy to represent as being an instance of the former: the clerk to the local authority mistakenly informed the developer that there was no charge and his employer, the local authority, conceded that it was vicariously liable for the resulting loss. on a true legal analysis, however, it was an instance of the latter. as lord denning explained,76 in his role as local registrar sharp was not a servant of the local authority. qua registrar, he was under a statutory duty to provide an accurate certificate and the certificate was conclusive as to the existence or not of the charge. mentioned in the text, the argument was made and partly accepted in mccreaner v ministry of justice [2014] ehwc 569 (qb), [2015] 1 wlr 354. 75 n 37. 76 at p 265. the denning law journal 77 the registrar’s careless exercise of his power thus had the effect of depriving the ministry of its right to the money secured by the charge. the judges of the court of appeal fudged or glossed over this difference, but we should not allow their equivocation to blind us to true nature of their decision. sharp is peculiar in that the right or entitlement in question was that of a branch of government. 77 there are other cases in which public authorities have been held to assume responsibility in the exercise of powers to determine rights or entitlements, however, in which the persons affected have been ordinary citizens. one such case is neil martin ltd v revenue and customs commissioners.78 the claimant in this case was a builder who applied to the revenue for a certificate which he needed to in order to obtain work as a subcontractor. in processing his claim, the revenue made a series of errors with the result that he only obtained the certificate after a long delay, thus occasioning loss. the errors included wrongly insisting that he had to produce company accounts, failing to ensure that he signed the relevant forms while at the tax office, mistakenly treating the forms submitted by the claimant as an application for something other than the required certificate, marking a second set of forms with the wrong unique tax reference, and sending the certificate once granted to the wrong address. the court of appeal held that the third of these errors, but not the others, gave rise to a duty of care: in deciding to treat the claimant’s application as an application for something other than the sought after certificate, the anonymous employee had assumed a responsibility towards the claimant and the revenue was vicariously liable for its breach. another example is welton v north cornwall district council.79 here, the owners of a guest house made expensive improvements to their premises on the advice of an environmental health officer given when the officer paid them an informal visit. the improvements turned out not to be required under the relevant legislation. on the owners’ action for recovery of the wasted expenses, the court of appeal held that the officer had, in effect, been offering an advisory service and could thus owe a duty of care to the owners and be liable for negligent misstatement. in reaching its judgment, the court emphasized the informal nature of the officer’s visit and characterized the giving of advice as beyond the officer’s 77 moreover, if the registrar could be represented as making a direct undertaking to anyone it would be to the person seeking the certificate. 78 [2007] ewca civ 1041; [2007] all er (d) 897. 79 [1997] 1 wlr 570. assumption of responsibility by public authorities 78 statutory functions. the case might thus appear to fall outside the category of cases involving the making of a legal determination as to rights or entitlement. as lord scott vc pointed out when he distinguished welton in another case, 80 however, the officer’s giving of advice could not plausibly be differentiated from his statutory functions in this way. the plaintiffs did what he told them to do not simply because he was an expert on the subject who had proffered advice but because he had coercive powers which they believed he would use against them: the officer’s giving of advice in this context was itself an exercise of coercive power. the case thus concerns the exercise of a public authority’s powers to determine rights, despite the court of appeal’s attempt to make it appear otherwise. it is, of course, a noteworthy feature of these cases that the courts never admit that a public authority making a determination as to rights or entitlements can, in so doing, make an assumption of responsibility. in each case, the court pretends that some employee of the authority has somehow stepped outside its statutory function and performed an act of the sort that would involve assumption of responsibility if performed by a private person. justifications have occasionally been advanced in the case law for the view that assumption of responsibility is incompatible with the performance of a statutory function. one is that where a public authority is subject to a statutory duty to act it cannot be said to have assumed responsibility towards those affected by its action because it was not acting voluntarily. 81 this insistence that a person can only assume responsibility in relation to acts which she is not legally obliged on other grounds to perform is inconsistent with the definition of assumption of responsibility i set out above, however. it assumes a reading of “voluntary” as entailing freedom of choice whereas, in a number of leading cases, defendants have been found to have assumed responsibility despite being under a legal obligation to perform the act to which assumption relates.82 to define assumption of responsibility in this way, 80 harris v evans (n 14). 81 see customs and excise commissioners v barclays bank plc (n 30) [14] (lord bingham), [94] (lord mance) respectively; neil martin ltd v revenue and customs commissioners [2006] ewhc 2425 (ch) 97 (andrew simmons); rowley v secretary of state for work and pensions (n 74) [54] (dyson lj); darby v richmond upon thames lbc [2017] ewca civ 252 [18] (thirlwall lj). 82 see barrett v enfield lbc and phelps v hillingdon lbc, both (n 25), in both of which the defendant public authorities were held to owe duties vicariously as a result of actions performed by the professionals they employed while at the same the denning law journal 79 moreover, would have the consequence that the concept could not be used to explain the incidence of the duty of care in cases involving public authorities since most public authority cases in which an assumption of responsibility may be found are ones in which the authority is obliged by statute to perform some action vis-à-vis the claimant.83 the conventional picture i presented above of the role that assumption of responsibility might play in legal determination cases is thus false. it is not true that there is never a duty of care in such cases, nor that the concept of assumption of responsibility is not or cannot be used. the concept has been used in some cases. the courts have tried to make it appear that these cases did not truly involve the exercise of powers to determine citizens’ rights or entitlements but typically they did involve such exercise. if the concept were used consistently, moreover, it would justify imposing a duty of care in many and perhaps the great majority of legal determination cases. its use cannot, therefore, be said to justify by itself the current pattern of liability and no liability in such cases. this prompts the question whether assumption of responsibility, in combination with one or more of the exclusionary principles discussed above might produce a pattern like that to be found in the actual case law. in particular, one might ask whether the use of assumption of responsibility together with what i called above the fourth proposition – namely that a putative duty should be excluded if it would be in conflict with the other duties to which the defendant public duty was subject – might produce a pattern of liability like that in the case law. the answer is that it would not. the legal determination cases in which a duty has been found are ones in which the courts have been able to delude themselves that determination of rights or entitlements was not involved, either by pretending that the relevant acts could be attributed to an employee rather than to the authority itself or that the authority was simply dispensing information. these cases are not ones in which the possibility that a duty of care would conflict with the authority’s other public law duties was less present than in cases in which no duty was found. in neil martin, for example, a duty on the part of the tax time being under statutory obligations to act. in a non-public authority context, see henderson v merrett syndicates ltd (no 1) (n 45), in which an assumption of authority arose on the basis of conduct undertaken in fulfilment of a contractual obligation to a third party and spring v guardian assurance plc [1995] 2 ac 296 (hl), where an assumption of authority was held to arise in relation to an act required by the defendant’s membership of a self-regulatory body. cf nolan ‘the liability of public authorities for failing to confer benefits’ (n 5) 283. 83 as in barrett and phelps (n 25). assumption of responsibility by public authorities 80 authorities to correctly determine the claimant’s tax status could presumably be said to have conflicted with its duties to do the same for other tax payers and to obtain the maximum tax take for the treasury while in the welton case, a duty on the part of the health inspector to take care in determining the guest house owners’ obligation under the relevant legislation could be said to have conflicted with his duty to protect the interests of potential customers of the guest house in health and safety. the idea of a duty of care based on assumption of responsibility and limited where necessary to avoid conflicting duties also has a serious deficiency from a normative or justificatory point of view. if the typical legal determination case involves an assumption of responsibility and is therefore on all fours with the typical professional case, why should the need to avoid conflicts between duties exclude liability in relation to the former and not in relation to the latter? it might be thought that what distinguishes the two types of cases is that legal determination cases usually involve difficult decisions as to the allocation of resources whereas, in professional cases, once a professional person (whether public or private) has assumed responsibility towards an individual the only issues that arise relate to practical competence in the provision of the service offered. this distinction will not withstand examination, however. even once a public sector professional has chosen to serve a given individual, the choices she makes in providing the service will have resource implications and involve choices that affect other persons to whom she might owe a duty. an nhs doctor must balance the time spent in administering a treatment to a particular patient against the time to be spent in treating other patients and to attach a duty of care to one patient might be thought to produce a conflict with the duties owed to others; in preparing a statement for a pupil with special educational needs, an education officer will make recommendations having implications vis-àvis the resources that can be spent on other pupils;84 and a social worker deciding whether to place a child in care with a foster family and which foster family to choose owes conflicting duties to both the child and the foster families concerned.85 the choices to be made in these cases do not involve matters of high policy and in the first and second of these examples, the exclusionary principle involved – i.e. that there should not be a duty of care towards a particular individual where the authority concerned owes a duty to all members of the public who share the 84 cf phelps (n 25); carty v croydon lbc [2005] ewca civ 19, [2005] 1wlr 2312. 85 barrett v enfield lbc (n 25); w v essex cc [2001] 2 ac 592. the denning law journal 81 situation of the individual in question is one i represented above as a tendency rather than an absolute rule. nonetheless, if we compare the potential conflicts of duties involved in such cases with those in the case in which lord scott’s strict exclusionary principle was enunciated, there seems no reason to allow a duty of care in the former while excluding it in the latter. the failure in jain was to take reasonable care in ascertaining the facts when deciding whether to apply for the cancellation of a care home’s licence. no hard question of policy was involved here either and if a health authority cannot be put under a duty of care for fear that it might not cancel a care home’s licence when the protection of the occupants’ well-being made it necessary to do so, it is hard to see how we can be confident that imposition of a duty of care might not have an equally distorting effect on a doctor deciding which treatment to administer, an education officer recommending special educational provision or a social worker deciding to recommend that a child be placed with a foster family. thus the recognition that many legal determination cases might involve an assumption of responsibility on the part of the public authority concerned tends to point up the arbitrariness of the principles of blanket exclusion adopted in recent case law. a more defensible method of determining the incidence of the duty of care in legal determination cases would be to assume its prima facie existence and limit it by reference to any deleterious consequences that its imposition seemed likely to have. but it is precisely to avoid such an approach – essentially the one set out in anns v merton borough council86 – that the current dispensation has been adopted. a final question is whether an approach to legal determination cases based on the consistent application of assumption of responsibility might produce satisfactory outcomes even if those were not the outcomes to be found in current case law. having surveyed all categories of public authority cases, however, we are now in a position to see that the consistent application of the concept of assumption of responsibility would produce across the whole range of public authority cases an incidence of the duty of care far more extensive than usually contemplated by the concept’s proponents. the question whether use of the concept in relation to legal determination cases is better addressed as part of the larger issue of whether its use can produce a pattern of satisfactory outcomes for public authority cases as a whole and accordingly i postpone it to this article’s conclusion. 86 n 2. assumption of responsibility by public authorities 82 5 conclusion the concept of assumption of responsibility cannot be used to explain or justify those parts of the law on the negligence liability of public authorities to which it appears to have application. as we have seen, there are various anomalies for which it cannot account. but if it cannot explain or justify the current law could its consistent application result in something better? one might, speculate on this basis that assumption of responsibility could form the foundation for a more extensive law of public authority negligence and that in doing so it might cure what many have for long felt to be a defect in english law, the lack of a developed form of administrative liability. such a development would be supported by the principle enunciated by lord bingham. it should not surprise us if the consistent application of assumption of responsibility produces the kinds of outcomes required by that principle. as noted above, the paradigm example of assumption of responsibility is the offer of help to a member of the public by a qualified professional. what distinguishes a professional person from any other provider of services is professed expertise and a commitment to serving the public interest. a professional is thus very like a public authority and in some systems is treated as one. what the discussion above has demonstrated, however, is that while a law of public authority negligence liability based on assumption of responsibility might be far more extensive than the concept’s proponents envisage, it would still suffer from unjustifiable lacunae as a result of the requirement that a person act positively in order to assume responsibility. hence, as we saw, the fire brigade that attends a fire and incompetently fails to put it out would be liable while the fire brigade that unreasonably omits to attend would not; the social services department that apprised itself of the facts relating to an abused child and negligently failed to remove the child from her abusive parents would be liable while the social services department that negligently failed to take notice of the child’s situation in the first place would not; and so on. if one were minded to use negligence as the vehicle for a developed form of administrative liability, one would therefore be better off relying on the bingham principle directly than using assumption of responsibility as a kind of proxy. faced with the inadequacy of the concept of assumption of responsibility, there are a number of possible responses. one is to continue the so far fruitless search for some concept that is, on the one hand, consistent with the basic principle that public authorities are to be treated as if they were private persons but that, on the other hand, avoids the harsh or seemingly unjust results to which the principle otherwise the denning law journal 83 gives rise.87 another is to adhere to the principle that public authorities must be treated in the same way as private persons while simply accepting that this produces harsh and unjust results. a third response would to be to abandon the dogmatic adherence to dicey’s equality principle and to accept at last that english law requires a form of specialized administrative liability, one based overtly on the principle that there should be compensation for the misdeeds of public authorities. with respect to this last possibility, one final observation is in order. in my description at the beginning of this article of the current state of the law in this area, i outlined what i called “the background premise” namely the view that a public authority acting in the exercise of a public law power or in pursuit of public law duty can never owe a duty of care except when it attracts such a duty by performing an activity that might equally well be performed by a private person. in other words, even if it might appear desirable to extend a principle that applies to private defendants in such a way as to impose a duty of care upon a public authority in relation to some activity that lacks an obvious private counterpart, it is somehow never appropriate to do so. the approach of the courts to what i called above legal determination cases tends to confirm the existence of the background premise. in a number of such cases, the courts have justified the imposition of a duty of care by assimilating the acts of the defendant public authority to ones that might be carried out by a private person.88 where such assimilation is not possible, however, or where the courts are clear sighted enough to recognize that the case involves the making of a legal determination, despite the superficial resemblance to an activity that might be carried out by a private person, then a duty of care is denied.89 what justification is there for this state of affairs? none is to be found in the case law. instead, the courts present us with a series of ad hoc excuses for restricting liability without ever providing or even 87 the notion of “general reliance” propounded by mason j in sutherland shire council v heyman (1987) 157 clr 424 and discussed by lord hoffmann in stovin v wise (n 24) 953-55 has been considered for this purpose but with little success. more commonly, adherents of dicey’s equality principle tend to deny that there is any special problem of public authority liability and look instead for principles that will explain why there should be liability in cases (whether with public or private defendants) involving omissions. for a useful exposition of such principles see h wilberg, ‘in defence of the omissions rule in public authority negligence claims’ (2011) 19 tlj 159. 88 as in barrett (n 25); phelps (n 25); sharp (n 37); neil martin (n 81); welton (n 79). 89 n 74. assumption of responsibility by public authorities 84 acknowledging the need for a global explanation for the refusal to provide compensation in relation to loss caused by distinctively public law functions. one is left with the sense that the english legal system’s lack of a developed form of administrative liability is the product of nothing more than a blind fearfulness and conservatism. the denning law journal 77 denning law journal 2019 vol 31 pp 77-91 does the failure to provide equitable access to treatment lead to action by nhs organisations? the case of biologics for south asians with inflammatory bowel disease affifa farrukh* john francis mayberry** abstract aims: the purpose of this study was to identify whether nhs trusts where discrimination in the delivery of care to patients from the south asian community had been demonstrated had taken any actions to address the issue over the subsequent year. methods: freedom of information requests were sent to three trusts which had provided evidence of disparate provision of biologic therapy to patients with crohn’s disease, their associated clinical commissioning groups and healthwatch organisations to seek evidence they had remedied the situation. requests were also sent to the care quality commission, nhs improvement and the equality and human rights commission seeking examples where they had responded to inequitable delivery of care related to ethnicity. results: no organisation had any evidence of responses to the situation, many unable to accept its existence. conclusion: legal duties are discussed and the only remedy appears to be through the tort of negligence. key words: discrimination, ethnicity, biologics, inflammatory bowel disease introduction crohn’s disease and ulcerative colitis are both chronic incurable inflammatory bowel diseases characterised by diarrhoea and abdominal pain. during the last two decades, these diseases have increased significantly in frequency and spread * consultant physician & gastroenterologist, nuffield hospital, scraptoft lane, leicester, uk. ** professor of gastroenterology, nuffield hospital, scraptoft lane, leicester, uk. 78 does the failure to provide equitable access to treatment lead to action by nhs organisations? throughout the world.1 studies on migrant communities have shown them to be particularly susceptible to aggressive forms of chronic incurable inflammatory bowel disease, especially in the second generation.2,3 their cause is unknown and so treatment is directed at control of symptoms rather than cure. up until the end of the twentieth century, this treatment was limited to a small range of drugs or surgery. the drugs were low cost and surgery could involve significant resections of the bowel and also the formation of a permanent stoma. both conditions also significantly increase the risk of developing colonic cancer.4,5 however, during the last decade there have been significant changes in the management of both crohn’s disease and ulcerative colitis with the introduction of monoclonal antibodies. these treatments are expensive, costing between £12,000 and £15,000 per year for the medications alone. their use is approved by the national institute for health and care excellence (nice)6,7 and this has had significant economic consequences for hospital trusts and clinical commissioning groups (ccgs). the provision of these agents is regulated by a technology appraisal guidance, which means that if they are indicated they must be provided to patients. the purpose of technology appraisal guidance is ‘to ensure that all nhs patients have equitable access to the most clinicallyand cost-effective treatments that are available’.8 1 sc ng, hy shi, n hamidi, fe underwood, et al., ‘worldwide incidence and prevalence of inflammatory bowel disease in the 21st century: a systematic review of populationbased studies’ (2018) 390 lancet 2769. 2 i carr and jf mayberry, ‘the effects of migration on ulcerative colitis: a three-year prospective study among europeans and firstand second-generation south asians in leicester (1991–1994)’ (1999) 94 american journal of gastroenterology 2918. 3 a farrukh and jf mayberry, ‘inflammatory bowel disease and the south asian diaspora’ (2019) jgh open <https://doi.org/10.1002/jgh3.12149 > accessed 6 august 2019. 4 ja eaden, kr abrams and jf mayberry, ‘the risk of colorectal cancer in ulcerative colitis: a meta-analysis’ (2001) 48 gut 526. 5 c canavan, kr abrams and j mayberry, ‘meta-analysis: colorectal and small bowel cancer risk in patients with crohn’s disease’ (2006) 23 alimentary pharmacology and therapeutics 1097. 6 nice, ‘infliximab and aalumimab for the treatment of crohn’s disease’ (nice, 2010) <nice.org.uk/guidance/ta187> accessed 14 may 2019. 7 nice, ‘infliximab, adalumimab and golumimab for treating moderately to severely active ulcerative colitis after the failure of conventional therapy’ (nice, 2015) <nice. org.uk/guidance/ta329> accessed 22 november 2016. 8 nice, ‘summary of technology appraisal decisions’ (nice, 2016) <nice.org.uk/ about/what-we-do/our-programmes/nice-guidance/nice-technology-appraisal-guidance/ summary-of-decisions> accessed 22 november 2016. https://www.nice.org.uk/guidance/ta187 https://www.nice.org.uk/guidance/ta329 https://www.nice.org.uk/guidance/ta329 https://doi.org/10.1002/jgh3.12149 the denning law journal 79 discrimination in the delivery of care has long been recognised in the united states, but during the last 20 years it has become apparent that this is also true in the united kingdom.9 recent studies have highlighted evidence that south asian patients have less access to these medications.10 a study in leicester demonstrated that south asian patients with crohn’s disease were four times less likely to receive biologic therapy than their english counterparts.11 this difference was independent of gender and accounted for age differences between the two communities. a subsequent study looked at the provision of biologic therapy for crohn’s disease in 10 english nhs trusts, which served areas with the largest ethnic variation.12 the freedom of information (foi) request revealed that in three trusts, pennine acute hospitals nhs trust covering oldham and north manchester, barking, havering & redbridge university hospitals nhs trust and university hospitals of leicester nhs trust, south asian patients with crohn’s disease were significantly less likely to receive biologic therapy than english patients. one trust, bradford teaching hospitals nhs foundation trust, declined to provide information on the basis that it did not collect data on ethnicity. in the remaining trusts there was no evidence of minority populations being underserved. in ulcerative colitis a review of the management of patients over the decade following their initial diagnosis showed that south asian patients were less likely to be seen by a consultant, less likely to be investigated and more likely to be discharged from hospital based care.13 there is supportive evidence for such findings from the united states, where discrimination in the delivery of care to ethnic minorities has been long recognised.14 in the 1990s the american medical 9 nice (n 8). 10 a farrukh and j mayberry, ‘ethnic variations in the provision of biologic therapy for crohn’s disease: a freedom of information study’ (2015) 83 medico-legal journal 104; a farrukh and jf mayberry, ‘apparent discrimination in the provision of biologic therapy to patients with crohn’s disease according to ethnicity’ (2015) 129 public health 460; a farrukh and jf mayberry, ‘patients with ulcerative colitis from diverse populations: the leicester experience’ (2016) 84 medico legal journal 31; a farrukh and jf mayberry, ‘evidences of differences and discrimination in the delivery of care: colorectal screening in healthy people and in the care and surveillance of patients with inflammatory bowel disease’ (2019) 1 gastrointestinal disorders 253. 11 farrukh and mayberry (n 12). 12 ibid. 13 farrukh and mayberry (n 12). 14 jf jackson iii, t dhere, a repaka, a shaukat and s sitaraman, ‘crohn’s disease in an african-american population’ (2008) 336 american journal of medical sciences 389; mh flasar, t johnson, mc roghmann and rk cross, ‘disparities in the use of immunomodulators and biologics for the treatment of inflammatory bowel disease: a 80 association recognised that ‘subconscious bias’ may be a factor for such clinical practice.15 in the united states, geiger has attributed such differences in care to either ‘conscious bias or, more often, unconscious negative stereotyping’16. there are no other ready explanations for such differences in the care of patients with inflammatory bowel disease in the united kingdom. the diseases occur with equal severity in patients of south asian and english origin, and the studies discussed above compensated for differences in age structure between communities, indicating that the differences in standards of care are real. the three trusts where patients received disparate care were informed of the results through a range of methods including presentations and publications. the purpose of this study was to investigate the practical responses of pennine acute hospitals nhs trust, barking, havering & redbridge university hospitals nhs trust and university hospitals of leicester nhs trust, to these findings one year later. related organisations concerned with the delivery of care by these trusts were also contacted to assess what action they had taken. these organisations fell into two groups, namely local and national. local groups included the clinical commissioning groups (ccgs) and the health and well-being boards, while national organisations contacted were the care quality commission, nhs improvement and the equality and human rights commission. ccgs are clinically led statutory nhs bodies responsible for the planning and commissioning of health care services for their local area. health and well-being boards commission local healthwatch organisations. they are a statutory service set up by local councils as part of the health and social care act 2012. healthwatch describes its role as: … the independent national champion for people who use health and social care services. we’re here to make sure that those running services, and the government, put people at the heart of care.17 retrospective cohort study’ (2008) 14 inflammatory bowel disease 13; om damas, da jahann, r reznik, jl mccauley, l tamariz, ar deshpande, mt abreu and da sussman, ‘phenotypic manifestations of inflammatory bowel disease differ between hispanics and non-hispanic whites: results of a large cohort study’ (2013) 108 american journal of gastroenterology 231. 15 council on ethical and judicial affairs american medical association, ‘black-white disparities in health care’ (1990) 263 journal of the american medical association 2344. 16 hj geiger, ‘racial and ethnic disparities in diagnosis and treatment: a review of the evidence and consideration of causes’ (2003) in bd smedley, ay stith and ar nelson (eds), unequal treatment confronting racial and ethnic disparities in healthcare (the national academies press washington 2003). 17 healthwatch (2019) <healthwatch.co.uk/what-we-do> accessed 13 may/2019. does the failure to provide equitable access to treatment lead to action by nhs organisations? https://www.healthwatch.co.uk/what-we-do the denning law journal 81 each trust is linked with several ccgs and healthwatch groups, representing different areas which they serve. the method adopted in this study was to approach each of the three trusts where there was evidence of underserving members of the ethnic minority community who had inflammatory bowel disease. in addition those bodies who have a statutory duty to monitor their delivery of service were also approached. on a local basis this was the ccgs and healthwatch organisations and nationally cqc, nhs improvement and ehrc. the technique chosen was to submit a freedom of information (foi) request, as this allowed follow-up questions, when answers lacked clarity. some authors have expressed the hope that greater transparency in health care will lead to improved services and that fois could be one engine for such a change.18 however, the effectiveness of foi ultimately depends upon the attitude and commitment with which it is approached by government agencies and their staff as well as public insistence that the statute is implemented in a way which fulfils its purpose.19 study in this study foi requests were sent to: 1. the three nhs trusts which had treated fewer south asian patients than expected, namely pennine acute hospitals nhs trust, barking, havering & redbridge university hospitals nhs trust and university hospitals of leicester nhs trust 2. the clinical commissioning groups (ccgs) and healthwatch groups commissioned by health and wellbeing boards associated with these three trusts 3. care quality commission (cqc) 4. nhs improvement (formerly monitor) 5. equality and human rights commission (ehrcc) 18 aj fowler, ra agha ra, cf camm and p littlejohns, ‘the uk freedom of information act (2000) in healthcare research: a systematic review’ (2013) bmj open <10.1136/bmjopen-2013-002967> accessed 6 august 2019. 19 m berger, ‘the freedom of information act: implications for public health policy and practice’ (2011) 126 public health reports 428. https://dx.doi.org/10.1136%2fbmjopen-2013-002967 82 nhs trusts, ccgs and healthwatch groups were asked to respond to two questions related to the information and published work on disparate care. they were: 1. what actions have the trust/ccg//healthwatch taken to ensure equitable access by the south asian community and other minority groups to treatment with biologics for inflammatory bowel disease? 2. what monitoring systems does the trust/ccg/healthwatch have in place to ensure equitable access to treatment with biologics by patients from the south asian community and other minority groups? groups which failed to reply were sent a further request. where answers were unclear or ambiguous explanations were sought. the cqc, nhs improvement and the ehrc were asked: ‘can you provide a list of the interventions that the cqc/monitor or nhs improvement/ehrc have made when there has been evidence of discrimination in the delivery of care to patients in the nhs based on ethnicity?’ again where answers were unclear or appeared evasive respondents were asked to expand or clarify their response. responses were reviewed for common themes using content analysis.20 this technique has previously been used in data drawn from multiple sources, including relatively short extracts.21 responses were received from the three nhs trusts, six ccgs but only one healthwatch. those 10 organisations which replied provided answers to all of the questions posed to them. many of the responses from different organisations across the country were carbon copies of each other, raising the possibility that freedom of information requests are responded to with standard answers and hence the need to seek clarification in some cases. the common themes identified from responses were: 1. there is no discrimination in the delivery of care and we deliver clinically appropriate treatment to all patients. this theme was present in responses from all 10 organisations. 20 gw ryan and hr bernard, ‘techniques to identify themes’ (2003) 15 field methods 85; k krippendorff, content analysis: an introduction to its methodology (2nd edn, 2004 sage). 21 jf mayberry, ‘an analysis of blogs from medical students on “english parallel” courses in central and eastern europe’ (2013) 81 medico legal journal 171. does the failure to provide equitable access to treatment lead to action by nhs organisations? the denning law journal 83 2. there is no mechanism for routine monitoring whether there is any discrimination in the delivery of care. the data we collect on treatment and ethnicity is too large to allow any analysis. this theme was seen in responses from all nhs trusts and ccgs 3. the organisation depends upon complaints about discrimination to initiate action and it has not received any. this theme was identified in the response from the healthwatch organisation. examples of responses to question 1 included: ‘we can confirm that all our patients are treated without discrimination’. ‘it would be both difficult and unlikely for there not to be equitable access to biologic therapy’. ‘the trust only starts patients on biologics according to strict clinical criteria’. no trust had responded to the published findings based on evidence they had supplied through earlier freedom of information requests. answers to question 2 included: ‘it is not considered that there is an access issue within name of organisation’. ccgs stated they were unable to access relevant data. however, if they became aware that: access is especially focussed on or restricted amongst particular ethnic groups, then the ccgs would take this issue very seriously and issue a contract performance notice. the need to monitor equality of access to care is a specific requirement of contracts between ccgs and trusts and is an obligation on both organisations. the second question addressed this requirement. none of the respondents had any monitoring system in place. indeed, most organisations tacitly recognised that monitoring equality in delivery of care did not occur. healthwatch oldham replied that it had: a number of systems in place for monitoring oldham residents’ access to and experience of health and social care services. these include a broad survey of patient experiences as well as using information from nhs choices, patient opinion and the care quality commission. 84 the common themes reported by cqc and nhs improvement included: 1. the information cannot be readily accessed from our data collection. 2. it is not within our terms of reference; some other body is responsible. the cqc reported that it would not issue a warning notice for the scenario described in the question as such notices are only used for systemic failures. it went on to state that enforcement actions were on the basis of contravention of regulations 9, 10 and 17 of the health and social care act 2008 (regulated activities) regulations 2014. to determine whether breaches of these regulations related to disparity in delivery of care based on ethnicity each action would need to be manually reviewed and the cqc was unwilling to conduct such an exercise. regulation 9 states: 1. the care and treatment of service users must— a. be appropriate, b. meet their needs; and c. reflect their preferences. 2. without limiting paragraph (1), the things which a registered person must do to comply with that paragraph include— a. carrying out, collaboratively with the relevant person, an assessment of the needs and preferences for care and treatment of the service user; b. designing care or treatment with a view to achieving service users’ preferences and ensuring their needs are met. and regulation 17: 2(e) seek and act on feedback from relevant persons and other persons on the services provided in the carrying on of the regulated activity, for the purposes of continually evaluating and improving such services. clearly the underserving of ethnic minorities by trusts falls within these categories and it is of concern that the cqc did not consider that this represented a systems failure and falls clearly within the grounds for issuing a warning notice. the failure of the cqc to deal with underperformance in a trust has previously been identified in a report by grant thornton on university hospital of morecombe bay where it concluded that there had, on the balance of probabilities, been ‘an attempt to cover-up matters concerning cqc’s regulation of uhmb’.22 22 grant thornton, ‘the care quality commission re: project ambrose dated 14 june does the failure to provide equitable access to treatment lead to action by nhs organisations? the denning law journal 85 nhs improvement’s response was that it held some logs of its work but they: do not go into sufficient granularity to specify whether any of those actions were based on any concerns relating to discrimination based on ethnicity. please note that nhs improvement does not have a role in monitoring trusts’ compliance with equalities legislation. this is despite the fact that from 2014 it was tasked with issuing nhs provider licences to trusts providing clinical care. among the conditions for licenses were: 4 (a) improving the quality of health care services provided for the purposes of the nhs (…) or the efficiency of their provision, (b) reducing inequalities between persons with respect to their ability to access those services, and (c) reducing inequalities between persons with respect to the outcomes achieved for them by the provision of those services.23 the ehrc considered such issues did fall within its terms of reference but reported that: following a search of the commission’s section 30 intervention records, we have determined that we hold no information relevant to your request. discussion trusts and their associated bodies are unwilling to accept that there is discrimination in the delivery of care, despite the fact that this has been shown through independent analysis of their own data. although they have collected these data they consider them too large to allow any analysis and have no structures in place to monitor whether they are delivering an equitable service. rather they depend upon external complaints by patients about discrimination being made to them, and they deny having received any. in addition, there is no evidence that any nhs trust or ccg where there was disparate care in delivery of biologics has taken any action to remedy the situation. 2013’ <cqc.org.uk/sites/default/files/media/documents/grant_thornton_uk_llp_morecambe_ bay.pdf> accessed 13 may 2019. 23 monitor, ‘the new nhs provider licence’ (2013) <gov.uk/government/uploads/ system/uploads/attachment_data/file/285008/topublishlicencedoc14february.pdf> accessed 1 december 2016. http://www.cqc.org.uk/sites/default/files/media/documents/grant_thornton_uk_llp_morecambe_bay.pdf http://www.cqc.org.uk/sites/default/files/media/documents/grant_thornton_uk_llp_morecambe_bay.pdf 86 there is no discrimination in the delivery of care despite the responses from the three nhs trusts and their associated ccgs problems with the equitable delivery of care in the secondary sector are widespread. the situation demonstrated for south asian patients with inflammatory bowel disease is not unusual. other examples include black african women with breast cancer being less likely to have surgery and more likely to be simply offered chemotherapy, while pakistani women were less likely to be offered radiotherapy or hormone treatment than white women.24 in the twenty-first century ethnic minority patients on the renal transplant register are still less likely to receive a donor organ than white patients.25 in the field of mental health black service users tend to be given injectable depot treatments rather than offered tablets or cognitive behavioural therapy.26 further examples include a qualitative study of registered nurses working in hospitals in leeds which identified racism affecting their care of pakistani patients.27 earlier a group of south asian inpatients had described how they felt that they needed to fit into what they described as an ‘english place’.28 in another study from middlesborough, only 5% of pakistani patients were told of the availability of professional translators to help with consultations.29 24 rh jack, ea davies and h møller, ‘breast cancer incidence, stage, treatment and survival in ethnic groups in south east england’ (2009) 100 british journal of cancer 545. 25 u udavaraj, r pruthi, a casula and p roderick, ‘uk renal registry 16th annual report: chapter 6 demographics and outcomes of patients from different ethnic groups on renal replacement therapy in the uk’ (2013) 125 nephron clinical practice 111. 26 j das-munshi, d bhugra and mj crawford, ‘ethnic minority inequalities in access to treatments for schizophrenia and schizoaffective disorders: findings from a nationally representative cross-sectional study’ (2018) 16 bmc medicine 55. 27 jd cortis, ‘meeting the needs of minority ethnic patients’ (2004) 48 journal of advanced nursing 51. 28 v vydelingum, ‘south asian patients’ lived experience of acute care in an english hospital: a phenomenological study’ (2000) 32 journal of advanced nursing 100. 29 r madhok, a hameed and r bhopal, ‘satisfaction with health services among the pakistani population in middlesborough, england’ (1998) 20 journal of public health medicine 295. does the failure to provide equitable access to treatment lead to action by nhs organisations? the denning law journal 87 there is no mechanism for routine monitoring for discrimination in the delivery of care the equality impact analysis for the nhs for 2016 and for 2017–2018 states that: the main types of data and information that evidence inequalities relate to: • patient access to services, experience and health outcomes.30,31,32 although trusts are contracted to collect these data they have wide latitude in how this is done but are expected to seek out additional sources of information related to equality of care. such sources should include published work as well as direct presentations. the guidance that is available on commissioning to reduce inequalities notes that local need is an essential factor to be aware of.33 however, failure to collect and monitor information on patient ethnicity is widespread. in the race equality service review only 9 of 24 trusts collected such data. however, only 3 of the 15 who failed to collect the data admitted to doing so.34 denial, as in this study on the underserving of south asian patients, is the standard response to many requests to nhs organisations for information about ethnicity. indeed a recent study of three primary care trusts in the north of england found that: rather than being embedded within processes of understanding and responding to the health care needs of the local population, ethnic (and other) equalities work was generally constructed as a matter of legal compliance or, as one respondent explained, a nicety, not a necessity.35 30 nhs, ‘a refreshed equality delivery system for the nhs eds2 making sure that everyone counts’ (2013) <england.nhs.uk/wp-content/uploads/2013/11/eds-nov131.pdf> accessed 14 may 2019. 31 nhs england, ‘nhs standard contracts 2016/17 equality impact analysis’ (2016) <england.nhs.uk/wp-content/uploads/2016/03/nhs-std-con-eia.pdf> accessed 14 may 2019. 32 nhs england, ‘nhs standard contracts 2017/18 and 2018/19 equality impact analysis’ (2016) <england.nhs.uk/wp-content/uploads/2016/12/nhs-std-contract-eia-1718. pdf > accessed 29 january 2017. 33 dr foster intelligence, the intelligent board 2009: commissioning to reduce inequalities (dr foster intelligence 2009). 34 v lyfar-cisse, race equality service review (south east coast bme network 2008). 35 s salway, g mir d turner, gt ellison, l carter and k gerrish, ‘obstacles to “race https://www.england.nhs.uk/wp-content/uploads/2013/11/eds-nov131.pdf https://www.england.nhs.uk/wp-content/uploads/2016/03/nhs-std-con-eia.pdf https://www.england.nhs.uk/wp-content/uploads/2016/12/nhs-std-contract-eia-1718.pdf https://www.england.nhs.uk/wp-content/uploads/2016/12/nhs-std-contract-eia-1718.pdf 88 the organisation depends upon complaints about discrimination to initiate action in 2015 the health select committee has described the nhs complaints system in the following terms: ….too many complaints are mishandled with people encountering poor communication or, at worst, a defensive and complicated system which results in a complete breakdown in trust and a failure to improve patient safety.36 the problem which this study has identified is that apparently none of the trusts have received any complaints indicating that their treatment policies were discriminatory. the complicated nature of the complaints system makes this not surprising. indeed even the ehrc has had limited involvement with health care and unequal treatment related to protected characteristics. one of the few examples that has been reported was the formal agreement it made with nhs tayside.37 its purpose was to ensure that all deaf patients would have their communication needs met. general comments one of the roles of nice is to ensure that effective medications are available to patients and the specific purpose of its technology appraisal guidance is: …….to reduce variations in practice across the country….38 these powers are set out in regulation 7 of statutory instrument 2013 no. 259 which states: 7 ((6) a relevant health body must comply with a technology appraisal recommendation. equality” in the english national health service: insights from the healthcare commissioning arena’ (2016) 152 social science & medicine 102. 36 health select committee, complaints and raising concerns (hc 2014–2015, 350) para 3. 37 equality and human rights commission, ‘section 23 agreement between the equality and human rights commission and tayside health board this agreement dated 7 october 2014’ <nhstaysidecdn.scot.nhs.uk> accessed 11 april 2017. 38 nice, ‘charter’ (2013) <nice.org.uk/media/default/about/who-we-are/nice_ charter.pdf> accessed 22 november 2016. does the failure to provide equitable access to treatment lead to action by nhs organisations? https://www.nice.org.uk/media/default/about/who-we-are/nice_charter.pdf%20accessed%2022/11/2016 https://www.nice.org.uk/media/default/about/who-we-are/nice_charter.pdf%20accessed%2022/11/2016 the denning law journal 89 within its quality standard for inflammatory bowel disease nice also recognised: commissioners and providers should aim to achieve the quality standard in their local context, in light of their duties to have due regard to the need to eliminate unlawful discrimination.39 monitor and cqc are charged with supervising the overall functioning of hospitals, but their inspections do not drill down into adherence to individual guidance. however, in an obiter dicta in rose v thanet clinical commissioning group, mr justice jay said: ……the extent of the public law obligation is to have regard to the relevant nice guideline and to provide clear reasons for any general policy that does not follow it…40 the nhs litigation authority has recognised the need for organisations to have mechanisms for monitoring implementation of nice guidelines.41 where a trust fails to do so, it is conceivable that a judicial review could require that organisation to reformulate its policies. medical directors were given responsibility for implementation and so failures might raise questions concerning their fitness to practice and lead to referral to the gmc. however, the question remains as to who would seek such a review or make such a referral. the public sector equality duty identified in the equality act is the basis for the statement in the nhs constitution that: legal duties require nhs england and each clinical commissioning group to have regard to the need to reduce inequalities in access to health services and the outcomes achieved for patients.42 39 nice, ‘inflammatory bowel disease’ (2015) <nice.org.uk/guidance/qs81> accessed 14 may 2019. 40 [2014] ewhc 1182 (admin). 41 nhs litigation authority, ‘an organisation-wide document for the dissemination, implementation and monitoring of nice guidance’ (2012) <nhsla.com/.../document%20 for%20the%20dissemination%20implementation%> accessed 1 december 2016. 42 department of health, ‘guidance: the nhs constitution for england’ (2015) <gov. uk/government/publications/the-nhs-constitution-for-england/the-nhs-constitution-forengland> accessed 14 may 2019. 90 sections 212 and 213 of the act make it clear that omission carries the same legal consequences as a requirement to perform a service. in 2013 monitor was tasked with issuing provider licences to trusts and among the conditions is: ... 4 (b) reducing inequalities between persons with respect to their ability to access those services….43 monitor has been subsumed within nhs improvement, but the organisation’s response was: … please note that nhs improvement does not have a role in monitoring trusts’ compliance with equalities legislation. which comment suggests it is unaware of its responsibilities under 4(b). unfortunately, section 71 of the health and social care act (2012) provides no remedy to the ordinary citizen if monitor fails in performance of its functions. cqc considers its objectives are to: … help to focus providers and commissioners on the importance of their responsibilities towards equality, diversity and human rights, and to improvement44 and ensure: … an organisation provides services proportionately to different groups and their needs45 so it is disappointing that cqc is unable to readily identify any occasion when it has issued enforcement actions concerned with inequality in delivery of care related to ethnic diversity. the health and social care act 2012 created health and social welfare boards to ensure local needs were met. however, such boards lack formal powers 43 monitor, ‘the new nhs provider licence’ (2013) <gov.uk/government/uploads/ system/uploads/attachment_data/file/285008/topublishlicencedoc14february.pdf> accessed 14 may 2019. 44 care quality commission, ‘equality and human rights impact assessment’ (ehria, 2010) <cqc.org.uk/sites/default/files/documents/20100630_31_assessments_of_quality_ eia_pub_version.pdf> accessed 14 may 2019. 45 ibid. does the failure to provide equitable access to treatment lead to action by nhs organisations? https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/285008/topublishlicencedoc14february.pdf https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/285008/topublishlicencedoc14february.pdf http://www.cqc.org.uk/sites/default/files/documents/20100630_31_assessments_of_quality_eia_pub_version.pdf http://www.cqc.org.uk/sites/default/files/documents/20100630_31_assessments_of_quality_eia_pub_version.pdf the denning law journal 91 to instruct ccgs or nhs trusts and by building good relationships hope to influence decisions by these bodies. their present role appears little more than that of a talking shop. the question as to why trusts and related organisations have failed to respond to the evidence of discrimination in the delivery of care is critical to any future actions to improve the situation. interestingly in an earlier study of english primary care trusts salway et al. found that ……consideration of ethnicity was often treated as a matter of legal compliance rather than ntegral to understanding and meeting healthcare needs. many managers and teams did not consider tackling ethnic healthcare inequities to be part-and-parcel of their job, lacked confidence and skills to do so, and questioned the legitimacy of such work…..46 the questioning of the legitimacy of such findings is common to this report. none of the respondent organisations identified any attempt by management to address these issues, often on the basis that they simply could not be true. dilworthanderson et al.47 (48) have suggested that in the us cultural interpretation of disease plays a central role with disparities in care being attributed to perceived rather than real differences and so legitimising a ‘do nothing’ approach, because nothing needed to be done. conclusion so where lies hope for a disadvantaged group of patients? sadly the most likely route for individuals is through the tort of negligence. clearly there will have been a breach of duty and but for that breach patients would have experienced a better quality of life through use of biologics and there is emerging data that their disease may have followed a different course. any current hope that there will be management-driven changes or interventions by regulatory bodies seems forlorn. 46 salway et al (n 37). 47 p dilworth-anderson, g pierre and ts hilliard, ‘social justice, health disparities, and culture in the care of the elderly’ (2012) 152 journal of law & medical ethics 26. co-ownership trusts in the united kingdomthe denning legacy m.j. dixon* the recent house of lords decision in city of london building society v. flegg1 and the enactment of the insolvency act 1986,2 have done much to relieve the agony of the law student faced with the complicated dossier of the law relating to co-ownership of property. however, even though a measure of clarity now exists in relation to the effects of co-ownership on the post-ownership rights of the parties, when it comes to analysing the situations in which co-ownership may arise in the first place, the student finds himself surrounded by a mass of conflicting diaa and confusing terminology. questions concerning the ownership of shared property occur most frequently in proceedings brought by one ex-cohabitee against the other,3 especially if, as is usually the case, the house represents the parties' only capital asset. as will be seen below, when the equitable interests in the property are expressly declared in writing, there is little room for debate. unfortunately, however, in many cases of shared occupation, the property deeds are concerned only with legal title. legal title may reside jointly with the parties, in one partner only, or with one partner and a third person,4 yet the location of legal ownership may not be decisive of beneficial ownership. it is now axiomatic that a person in whom the legal title is not vested may be entitled to an equitable interest in the property by virtue of a resulting or a constructive trust. 5 however, whilst this may fairly represent the principle, the practicalities are altogether more complicated. when examining the acquisition of beneficial interests in a co-ownership situation, the student has to find answers to two "uu po shan lecturer in law, trinity college, oxford. 1. [1987] 3 all e.r. 435. 2. sections 336-338, re-enacting 55.171-173 insolvency act 1985. 3 the wide powers of 5.24 of the matrimonial causes act 1973 are always available to secure relief for parting spouses. while the greater part of the business of the courts will be to unravel the domestic arrangements of unmarried cohabiting couples, in those cases where the divorce jurisdiction is not available, identical considerations will apply to husband and wife: see, e.g., remarriage of claimant, s.28(3), m.c.a. 1973; moral objection to divorce, shillh v. shillh [1977] 1 all e.r. 97. 4. bemard v. josephs [1982] 3 all e.r. 162; bums v. bums [1984] 1 all e.r. 244; cralll v. edlvards [1986] 2 all e.r. 426. although it would be rare in cases concerning co-habitees, there is no reason why a claimant may not contend that beneficial ownership resides in only one of the joint legal owners. 5. bl!ms v. bums; crallt v. edwards supra, and cases cited therein. 27 the denning law journal fundamental questions. first, how are such interests acquired? secondly, what type of legal mechanisms exist, or are employed, to give effect to these property rights? the first is a "real world" problem when will mrs a or miss x have a proprietary interest, and therefore a right to a cash sum on sale, in the property she once shared with mr a or mr y. it is, crudely, what does the party claiming the interest have to prove in order to establish that interest? the second is primarily a theoretical problem which, as yet, has not had any "real world" implications.6 given that the claimant has established the "correct" criteria, what kind of trust arises in his or her favour? is the claimant to be regarded as a beneficiary under an express, resulting or constructive trust? does it matter? unfortunately, it is not easy to extract an answer to either of these questions from the many reported cases concerning the existence of co-ownership interests. the decisions of the court of appeal in goodman v. gallant7 and burns v. burns8 were thought to have settled the first issue, or at least to have returned the law to its pre-denning orthodoxy.9 however, the traditional trust law approach favoured in burns must now be questioned in the light of the decisions in midland bank v. dobsonlo and grant v. edwards. ii furthermore, when there is no express trust on view, the courts have been content to acknowledge that the claimant has established an interest under "a resulting or constructive trust", or "a resulting implied or constructive trust". the two recent cases of passee v. passeel2 and turton v. turton13 are just the latest examples of a general failure to differentiate between these two concepts when discussing the basis of the applicants alleged proprietary rights in the disputed property. moreover, even if this failure is indicative of the fact that the rights and duties of the parties are identical irrespective of the label attached to the trust, this does not mean that the requirements for the establishment of the co-ownership trust are identical for the "resulting" and "constructive" varieties. in other words, the type of trust found by the court may be a reflection of different enabling criteria, and the failure to differentiate between the type of trust, may be a reflection of the failure to distinguish between the various situations in which such trusts may arise. this connection between the practical and conceptual issues is the reason why the student needs answers to both of these fundamental questions. 6. see in a similar vein, peuiu v. peuill [1970j a.c~ 777, at pp.794-95 per lord reid. 7. [1986j i all e.r. 311. 8. [198411 all e.r. 244. 9. sec, e.g., hflzell v. hazell [1972] i w.l.r. 301; eves v. eves [1975] 1 w.l.r. 1338; hargrave v. newlon (1971] 3 all e.r. 866. 10. [1985] f.l.r. 314. ii. [1986] 2 all e.r. 426. 12. theindependenl, 10th july 1987. 13. [1987] 2 all e.r. 641. 28 co-ownership trusts in the united kingdom situation 1: expressly declared trusts it is now settled beyond doubt that where a conveyance contains an express declaration as to the beneficial interests of the parties, there is no room for the doctrine of resulting or constructive trusts.14 the expressly declared trust and beneficial interests prevail, irrespective of each party's financial contributions to the acquisition of the property and their conduct in relation to it. the only exception to this principle is where the declaration in the conveyance has been procured by fraud or mistake, and, even then, in order to obtain rectification of the original instrument, the applicant would have to discharge a heavy burden of proof.is it should be noted, however, that in order to exclude the possibility of resulting or constructive trusts, the conveyance must contain a declaration of the beneficial interests subsisting in the property. it is not enough that the conveyance is, without more, "to x and y as joint tenants" or even "to x and y as tenants in common", for this operates mer~ly to bring the statutory trusts for sale into playl6 and says nothing of the beneficial interests existing behind those trusts. indeed, the imposition of statutory trusts has no effect on the court's power to determine the property rights of co-owners. the equitable jurisdiction operates in all situations where no beneficial interests are declared in writing, both when the legal estate is vested in one person only and when vested in two or more persons jointly. only an express declaration of the beneficial interests will oust the possibility of a resulting or a constructive trust. obviously, the exclusion of the resulting and constructive trust doctrine only in those cases where there is an express declaration of the beneficial interests, gives the court freedom to vary the property rights of couples in a large number of cases. to what extent the courts have utilised this freedom, often in the pursuit of social justice, is considered below. situation 2: immediate resulting trust where at the time of acquisition of the property each party makes a direct financial contribution to the purchase price, the property will be held on a resulting trust in beneficial interests proportional to the scale of the respective contributions, irrespective of who holds the legal title.17 there is nothing new or remarkable in this result, it being an application of well settled equitable principles. the resulting trust arises because it is presumed that it is the intention of the parties that they should have an interest in the property commensurate with their investment, even though the property may be transferred to one person only. 14. goodmall v. gallant [1986] 1 all e.r. 311; turton v. tur/on [1987] 2 all e.r. 641. 15. goodman v. gallalll [1986] 1 all e.r. 311, at p.319. 16. sections 34. 36. l.p.a. 1925. 17. bullv.bull[1955] 1 all e.r. 253; corvcherv. corvcher[1972] 1 all e.r. 943. see also, [1986] 2 all e.r. 244, at p.431h-j per nourse lj. 29 the denning law journal it is an example of the "presumed resulting trust" identified by megarry j in re vanderoell no.2, 18 and can be rebutted by evidence that the money was paid by way of gift or loan.19 in order to distinguish this from situation 3 below, it can also be known as the immediate resulting trust because it operates immediately on acquisition of the property, for that is when the claimant makes the financial contribution, and that is when the beneficial interest results to him or her. it must be remembered that this is one of the less complicated situations with which the court has to deal, and would not normally present much difficulty. in most cases coming before the court, however, the claimant will not have made any contribution to the initial purchase price, but will be claiming an interest by virtue of subsequent events. indeed, the latter is all the more likely, now that the great majority of domestic properties are purchased by way of instalment mortgages. situation 3: common intention a cumulative resulting trust when the legal title to property is vested solely in one person, the presumption is that the proprietor is also the sole beneficial owner. we have seen above how this can be displaced in favour of a person contributing directly to the cost of the property at the time of purchase. however, sole beneficial ownership of property can also be displaced if the claimant can establish that it was the common intention of the parties that he, or more usually she, was to have an interest. 20 an express oral declaration of this common intention is dealt with in situation 4 (ii) below. the more frequent plea is that the claimant is to have a beneficial interest in the property by virtue of a common intention which can be inferred from the conduct of the parties over a number of years. what type of conduct may give rise to this common intention, and what type of trust arises if it is successfully established, is a matter of some debate. the leading authorities of pettitt v. pettitt2! and gissing v. gissini2 are well known and would seem to suggest that the answer is to be found by an application of traditional property law principles. however, this merely begs the question. the core of the dispute is whether "traditional property law principles" authorise the court to alter the property rights of couples in order to achieve a solution that is fair and just in all the circumstances, or whether they restrict the court to well worn equitable paths.23 in burns v. burns,24 the unmarried ms burns claimed a beneficial interest in the family home she had shared with the defendant for seventeen years, but which had been acquired by the defendant in his name only. there was no express oral 18. [1974] ch.269. 19. tinker v. tinker [1970] p.136; hussey v. palmer [1972] 3 all e.r. 744. but see also, barclays balik ltd. v. quistclose investments ltd. [1970] a.c. 567. 20. pel/itt v. pettil/ [1970] a.c. 777; gissillg v. gissillg [1971] a.c. 886. 21. [1970] a.c. 777. 22. [1971] a.c. 886. 23. the court of appeal under the leadership of lord denning mr were certainly of the former opinion: see, supra n.9. 24. [1984] i all e.r. 244. 30 co-ownership trusts in the united kingdom declaration that the plaintiff was to have an interest in the property, and she had made no contribution to the initial purchase price or to subsequent mortgage repayments. she did perform routine domestic duties and did contribute to household expenses, though the defendant did not require her to do so. the court of appeal refused her application. in their judgments, fox and may ljj concluded as follows:25 (i) a common intention that the claimant is to have a beneficial interest can be inferred when the claimant has made substantial financial contributions which are referable to the acquisition of the property. these financial contributions may be "direct" payment of mortgage instalments or "indirect" payment of other household expenses so that the partner's income is free to pay mortgage instalments. however, the contributions must be referable to the acquisition, so that routine domestic expenditure is not sufficient to found an interest. 26 it may be enough to pay the water rates, but not to pay the milkman. (ii) the court cannot infer a common intention simply on the basis of normal household and family duties performed by either party. conduct of this nature is not sufficient. in this respect hall v. hall27 must be regarded as wrongly decided. the court has no power to alter the property rights of unmarried couples outside the scope of the law of trusts. however harsh this may be, the remedy lies with parliament. 28 the court in burns v. burns29 expressed a desire to return to the spirit of pettitt and gissing and to what they perceived to be traditional trust law principles. in so far as the judgments place great emphasis on financial contributions referable to the acquisition of the property, the interest of the claimant would appear to exist behind a cumulative resulting trust the claimant gains an interest proportional to the financial contributions over those years during which the property was purchased. the situation is very similar to situation 2 above. in this case, however, acquisitive payments are deferred and accumulate over a period of time. situation 4: common intention constructive trusts in grant v. edwards,30 the court was of the opinion that all beneficial interests established by virtue of a common intention existed behind a constructive trust, 25. waller lj was less enthusiastic about both the reasoning and the result. he preferred the approach of lords reid and diplock in pellill, whereby the court is able to impute or deem a common intention to the parties, even if there was none, if fair and reasonable people would have formed such had they directed their minds to it. although this would enable the court to adjust property rights more freely, this method was rejected by the majority in pellill, and retracted by lord diplock in gissing.waller lj reluctantly accepted that the claim of mrs burns must fail. 26. [1984] 1 all e.r. 244, at pp.252-253, 256-258. 27. [1981] 3 f.l.r. 379. 28. [1984] all e.r. 244, at pp.255, 265. 29. ibid.. 30. [1986] 2 all e.r. 426. 31 the denning law journal because, "equity will not allow the defendant to deny that interest and will construct a trust to give effect to it.,,31 in order to establish the constructive trust, the claimant must prove a common intention that she was to have an interest and must have relied to her detriment upon it. the requirement of detriment is vital, given that the court cannot act upon an unsupported common intention. equity will not assist a volunteer. the nature of the detriment may be, and often is, financial contributions, but once the common intention is established it can be satisfied by any conduct "on which [the claimant] could not reasonably be expected to embark unless she was to have an interest in the house.,,32 in all cases, the detriment must be referable to the common intention; but, once the latter has been established, any act done by the claimant to her detriment relating to the joint lives of the parties, will be taken by the court to be so referable.33 the requirements that the claimant must act to her detriment in order to establish an interest seems first to have arisen in midland bank v. dobson.34 in that case, fox lj reluctantly accepted the trial judge's conclusion that there was a common intention that mrs dobson should have an interest, but refused to give effect to it by way of resulting or constructive trust because there had been no detrimental reliance.35 however, two further points are worthy of consideration. first, dobson is not a case involving financial contributions and should not be regarded as authority for the view that a constructive trust arises in such circumstances. secondly, dobson is far from being a typical case. mrs dobson was not attempting to enforce an interest against her husband, but rather, with his support, to deny possession of the property to the bank to whom it had been mortgaged by mr dobson. once the court of appeal had been hamstrung by the trial judge's finding of common intention, albeit on uncorroborated evidence,36 a literal reading of pettitt and gissing would have ensured that mrs dobson had gained an interest. however, this would have been an entirely unwarranted application of co-ownership principles, and it would have enabled the parties to defeat37 the bank's claim merely by asserting that they had had a common intention that the property be co-owned beneficially. however, fox lj found a way to avoid the wife's claim by accepting the bank's submission that detriment was required in order to establish an equitable interest. once this had been 3!. ibid., at p.43!. 32. ibid., at p.433. 33. ibid., at p.439. the preceding analysis is very similar to the "interest consensus" identified by goff j in re densham as giving rise to a constructive trust: [1975] 3 all e.r. 726. 34. [1985] f.l.r. 314. 35. ibid., at pp.320-32!. 36. "1 think that assertions made by a husband and wife as to a common intention formed 30 years ago regarding joint ownership, of which there is no contemporary evidence and which happens to accommodate their current need to defeat the claims of a creditor, must be received by the courts with caution": per fox lj, ibid., pp.317-318. 37. the wife had signed a letter of consent postponing any interest she may have had in the house, but alleged that this had been procured by undue influence. the court of appeal did not go on to consider this point. 32 co-ownership trusts in the united kingdom acknowledged, the case could be disposed of with ease. mrs dobson had never relied, to her detriment, on the common intention. the danger of using midland bank v. dobson38 as authority for a general restructuring of the principles behind the existence of co-ownership rights should be apparent. however, "detriment" was seized upon in grant v. edwards,39 with the result that the law relating to the acquisition of co-ownership rights was reassigned to the liquid world of the constructive trust in the following manner: (i) a common intention that a person who is not the legal owner is to have a beneficial interest may be inferred from direct or indirect financial contributions to the purchase price (burns v. burns). moreover, the payment of these financial contributions by the claimant is also to be regarded as the detriment which is necessary to establish the constructive trust in his or her favour. the requirement of detriment has not been a live issue in earlier cases because no distinction had been drawn between conduct necessary to raise the common intention, and conduct in reliance on it. in financial contribution cases, payment satisfies both criteria; it both indicates the common intention and constitutes the required detriment. the emphasis on the search for a common intention should not obscure this fact.4o (ii) a common intention that a person who is not the legal owner is to have a beneficial interest may take the form of an express oral assurance given by the legal owner to that effect. if this is established to the satisfaction of the court, the claimant must go on to establish detriment. that detriment may be, but need not be, financial contributions.41 eves v. eves42 is of this class. in grant itself, there was such an oral undertaking and the detriment was financial. in eves the detriment consisted of the physical labour exerted by the claimant in relation to the construction of the property, after the defendant had assured her that she was joint owner. (iii) it is open to debate whether a common intention may be inferred from conduct other than the payment of financial contributions. the analyses of nourse and mustill ljj would certainly accommodate such an approach,43 and brown-wilkinson vc seems to regard this as a distinct possibility.44 the claimant would, of course, still be required to establish that she had suffered a referable detriment. burns v. burns45 would appear to weigh against this possibility.46 38. [1985] f.l.r. 314. 39. [1986] 2 all e.r. 426. 40. [1986] 2 all e.r. 426, at p.437. 41. ibid., at p.439 42. [1975] 3 all e.r. 768. 43. [1986] 2 all e.r. 426, at pp.434, 435. 44. ibid., at p.437. 45. [1984] 1 all e.r. 244. 46. ibid., at p.254. 33 the denning i.aw journal this then, is the framework provided by grant v. edwards.47 all cases of common intention give rise to a constructive trust in favour of the person acting to his or her detriment on it. the matter is, indeed, very much tied to the recent explosion in the use of proprietary estoppe1.48 however, this result is not surprising when we consider that grant involved an express promise of a beneficial interest. it is well settled that equity will intervene in analogous cases,49and where co-ownership is concerned, the appropriate mechanism is the conscience-binding constructive trust. on the other hand, it is equally clear that the court in burns regarded the financial contribution scenario as a matter of resulting trust. the emphasis on financial contributions in that case would seem to have guaranteed this. this perhaps is the key. the court in burns was of the opinion that a common intention inferred from conduct could only be raised on the back of referable financial contributions. in other words, where there were no express assurances financial contributions were the only way for a party to gain an interest in property traditional trust law. that being so, there is no need and no desirability to bring the constructive trust into play. financial contributions give rise to a resulting trust. however, it would be wrong to ignore an express oral assurance given by the legal owner to his or her co-habitee that the latter was to have an interest in the property. indeed, courts of equity have not been slow to protect the promisee in related cases. therefore, express assurances, when relied upon, give rise to a constructive trust in favour of the claimant (grant v. edwards, eves v. eves). it is only when we presume that all co-ownership cases are of the same genus, that the authorities conflict and the student becomes confused. this neat division is upset, however, as soon as the possibility exists that other kinds of conduct such as building the house may be evidence of the common intention necessary to support a beneficial interest. by analysing co-ownership as common intention plus detriment giving rise to a constructive trust, we are accepting and accommodating this possibility. the court in grant was prepared to allow for this, whereas the court in burns was not. there is no necessary contradiction between the reasoning in burns v. burns and grant v. edwards. in essence, they desire the same goal the protection of a potential co-owner of property against inequitable conduct on the part of the legal owner.50 they utilise different concepts because they concern essentially different situations. an express oral assurance that x is to have a beneficial interest in property can never give rise to a resulting trust, and equity will be satisfied by the imposition of a constructive 47. 11986] 2 all e.r. 426. 48. [1986] 2 all e.r. 426, at p.439 per brown-wilkinson vc. see also the combination of constructive trust and proprietary estoppel in the startling decision re basham [1987] 1 all e.r. 405. 49. see, e.g., the principle of promissory estoppel where the promisor agrees to forgo existing rights: central london property trust ltd. v. high trees house ltd. [1947] kb 130; crabb v.anlll disln'l1 council [1975] 3 all e.r. 865. 50. such was not the case in midland bank v. dobson, and is a powerful argument against a wholesale adoption of its reasoning. 34 co-ownership trusts in the united kingdom trust. likewise, when the parties have made a financial contribution to the cost of the property, the claimant's interest arises under a resulting trust, and even though it is possible to analyse this situation as one of constructive trust, to do so obscures the true factual basis of the claimant's rights, viz. that he or she has helped to purchase the property. it is only if we wish to expand the courts ability to award beneficial interests that we need adopt the constructive trust approach. for once we reach the stage that any conduct may be evidence of a common intention, we have the power to make any award which seems just in all the circumstances, and the flexible constructive trust is the best weapon available.51 on the facts of the case, grant v. edwards52 was rightly decided, yet the expansion of the equitable jurisdiction which the reasoning would encourage was rejected in pettitt, gissing and burns. to allow interference with the paper title to any greater extent than is at present permissible, would be to reduce the security of a legal owner to a mere sham. if there is a serious injustice being perpetrated against non-married co-habitees, surely that is a matter for parliament to remedy. as lord reid himself said in pettitt v. pettitt, "where we are dealing with matters which directly affect the lives and interests of large sections of the community and on which laymen are as well able to decide as lawyers ... it is not for the courts to proceed on their view of public policy for that would be to encroach on the province ofparliament."s3 it is not that an unmarried co-habitee should be denied property adjustment on the break up of a stable relationship. it is rather that the law of trusts should not be manipulated to achieve it. 51. "although the plaintiff alleged that there was a resulting trust, i should have thought that the trust ... was more in the nature of a constructive trust; but that is more a matter of words than anything else ... it is a trust imposed by law whenever justice and good conscience require it. it is a liberal process founded on large principles of equity": hussey v. palmer [1972j 3 all e.r. 744 per lord denning mr. 52. [1986j 2 all e.r. 426. 53. [1970] a.c. 777, at p.795. 35 values the rt. hon. lord hailsham ofmarylebone this lecture is basically philosophical in content, and, as such, is almost certainly outside the curriculum of any of the studies which brought you here. i am sure that at least is an advantage. i do not wish anything i say today to compete with anything you may have learned of the sciences or arts from the staff of the university. equally, however, when i say that this lecture is basically philosophical, i cannot pretend to set myself forward as a professional in that field. sixty years ago i got a first degree in the subject, but first degrees do not entitle one to give lectures. nor, in the main, do professional philosophers commit themselves, as i am about to do, to a theme. this lecture is entitled "values", and the theme is about these. it is a commonplace to say that we live in the age of technology and science. but the world of technology and science is specifically a world inhabited by matters which can be measured, observed and calculated, and whose effects can be reproduced if the conditions in which they are first observed can be duplicated in the laboratory or elsewhere. the sciences are the result of centuries of growth, steady development and shared and public knowledge and it is certain that the present age is one in which development and growth in the sciences are more rapid and more extensive than ever before in human history. what is also certain is that, in the nature of things, though the application of science and technology can improve out of all recognition the quality of life (as an example, one only has to cite the discovery of antibiotics), and at their best form an indispensable part of contemporary culture, there remains a world which is just as real but it is not susceptible of measurement, calculation, nor in the ordinary sense one which can be created or recreated by duplicating a set of ascertainable laboratory conditions. i call this second world the world of values or, perhaps more precisely of value judgements. like everything else which is susceptible of discussion, value judgements are capable of being contained in sentences framed in words. but the things described are not themselves words, nor do they simply describe something which can give rise to purejy subjective sensations of pleasure or pain, like the feeling one gets at the hairdressers when undergoing a good shampoo, or the ·kg, chancellor of the university of buckingham. the buckingham lecture delivered 25 may 1988. ' 85 the denning law journal grunts of satisfaction which an animal gives when you scratch his back. at least that is my contention. value judgements are essentially about qualities, beautiful and ugly, good and bad, right and wrong, just and unjust, kind or brutal, in which praise and blame are bestowed, it would seem objectively, despite the fact that none of this group of qualities can be measured or observed, that none of them are capable of definition in terms of the others, or in terms of some neutral qualities per genus aut speciem, despite the frequent and virtually age long attempts, at least by western philosophers to achieve precisely this result. there is a language of poetry. there is a language of music. there is a language of beauty which cannot simply be expressed in words used in their literal sense. i call the attempts age long. i believe that this is no exaggeration. they go back at least as far as socrates, and perhaps earlier. those who enjoyed the period of intellectual euphoria which followed the sequence of victories over the persians at marathon, salamis and plataea in greece and at the cape mykale in iona and against the carthaginians in magna graecia may have entertained no such difficulties and sought no such solutions. the self-confident character of their statuary and architecture between salamis and aegospotami points to a period of triumphalism, accompanied, no doubt by intense intellectual curiosity, but without the doubts about the value of meaning of life to which intellectual curiosity in the modem world seems invariably to lead. but after the athenian defeat at aegospotami it was all different. the bottom seems to have fallen out of the greek world, the twelve gods cast down from their seats on olympus. there was no more triumphalism and something like despair took its place. in the arts and literature all the technical skill was there, possibly even enhanced. it may be seen in the statue of the boy jockey in the national museum at athens, or in the newly discovered and beautiful series of child portraits dug up at brauron after the end of the second world war. but it was never to be self-confident morning again. none of the young men, adeimantus and glaucon and their brother plato and their friend polemarchus or the poet agamon, who spoke with socrates and whom he was subsequently executed for corrupting, could go about life like caphalus, the father of polemarch us, living or trying to live what he chose to call a righteous and holy life without questioning what was meant by holiness and righteousness or why an intelligent yo!mg man or woman would do well to pursue it, when all the advantages seemed to lie in pursuing a life devoted to self-interest, pleasure or the pursuit of power. and socrates himself, described by the oracle at delphi as the wisest man in all hellas, adept at exploding the pretentiousness and self-importance of others accounted to be wiser, and himself the model of the virtues as virtue was then understood to be, wandered about the city asking whomsoever he might encounter the meaning of justice and righteousness and at the end confessing that apollo was only right in attributing wisdom to himself because he at least was aware of his own and total ignorance whilst they with their greater reputations and pretensions were wholly unaware of theirs. the quest for understanding the meaning of life has continued ever since, 86 values through aristode, the epicureans and stoics, the medieval theologians, st. thomas aquinas, the english empiricists and sceptics, through kant and marx (who claimed to have stood hegel on his head) right into our own time, to bradley and bosanquet and green in the oxford of my youth. after that it seems rather to have petered out. it was left to a then almost unknown philosopher, later professor h. a. prichard, in an article in mind in 1905 or 1906 entided "is moral philosophy founded on a mistake?" and answering the question in the affirmative to turn over the tables of the game and scatter the cards upon the floor. but though he altered the rules of this intellectual game of cards, i do not think professor prichard finished the debate or that he would have wished to do so. it remains for our own generation after two world wars, and a disillusionment equal to any of ancient times to reconstruct moral philosophy upon a different basis and establish the intellectual foundations for the objectivity of the value judgements on a different and, i believe, sounder foundation. i do not speak now of the religious dimension, though it would be wrong for any of you to believe that it is ever very far away from my mind when i speak of such things. but, since most of the propositions of the theologian, though they may be legitimately held, are not direcdy verifiable, it is legitimate to enquire (if they are not entirely self standing), the kind of intellectual foundations on which they may be deemed to be reasonable. the great mistake, as it seems to me, of the traditional western philosophers was to seek an intellectual justification for the traditional value judgements of mankind by looking for some kind of definition of them in terms of something other than themselves, and to believe that, unless some definition of this kind or some purpose like pleasure, happiness, wealth, the will of god other than the pursuit of these values for their own sake, a sort of summum bonum as it was called, could be discovered, the values themselves became worthless, or purely subjective to the individual and therefore lacking in objectivity, rationality or intrinsic worth. strange as it may seem at first sight, i believe the truth to be that value judgements do not require justification or definition, or evaluation in terms of some ultimate purpose or good. they are intrinsically self-standing. it is true, of course, that they are themselves objects for study, pursuit, enjoyment, and are not in themselves capable of verification by external criteria. persons of different types of experience, different degrees of percipience or excellence in their pursuit perceive them differently and may thus legitimately enter into controversy about their nature and about individual examples of their application. but what is really remarkable about them does not consist in these differences of perception. it consists in the convergence, the congruity, almost the consensus, of wise men of different countries, continents, civilisations and religious beliefs as to their content. when, in january 1903, my grandfather was found dead in the bath at his flat in the polytechnic, there was found on his desk an unfinished letter addressed to a young member of the institute afflicted by religious doubt. "there are some 87 the denning law journal facts", he had written, "established beyond the warrings of all the theologians. forever, virtue is better than vice, truth than falsehood, kindness than brutality." he could have added "beauty than ugliness". what he meant of course was not that values were facts, like the existence of protons or neutrons, or happenings like the battle of waterloo or the reality of the loch ness monster or the yeti, nor that these truths were capable of being proved by evidence. what he meant was that value judgements did not require evidence to make them objectively acceptable. i am not, for a moment, seeking to argue that it does not matter what you believe, or that arguments among theologians, or different schools of philosophy, have no importance, or are arguments about nothing. what i am suggesting is that my grandfather's last words point to a congruity about value judgements amongst earnest seekers rather than divergence, and even more significantly that this congruity points to an objective validity and not to a more subjective feeling of approval or disapproval. i doubt whether plato or aristotle, amos or isaiah, gautama buddha or the founder of the christian religion, the author of the tao, confucius, 5t. thomas or maimonides, would have failed to subscribe, with intention, to what my grandfather then wrote. could anyone, viewing for the first time, the vision of chillon castle in the lac leman, or anyone of half a hundred views of mountains i could name, or could anyone hearing for the first time some of the most beautiful pieces of music, fail to exclaim in ecstacy on the wonderful beauty of what they had seen or heard. to my mind the appreciation of this value of beauty is something altogether outside the world of darwin or of einstein. but does this not indicate a philosophical point of great importance in our perception of things? the so-called problem of evil, why evil exists, or what it consists in, is a true problem. it raises a question one asks and never answers. that i do not seek to deny, and i do not imagine that i will ever manage to solve it. but is not the congruence amongst the wise as to what is good and what is not good an even greater problem? does it not touch the nerve of an even more important philosophical truth? the problem of good must be to the nihilist a problem more insoluble than the problem of evil to the believer. i come, to my mind, to the supreme value, but it is a value which transcends the value of truth or the objective reality of beauty or justice or injustice or right and wrong for which i have been arguing in all the others. i choose to call it the 'l' factor. it transcends the values of ethics and aesthetics and permeates the whole without altering its own nature. it transcends the careful jurisprudence and case learning of the lawyers. it exists apart from truth or falsehood. it has no survival value from the point of view of the individual or the species. i believe it enters into the composition of the universe itself, and particularly ofliving creatures within it. the difference between value judgements and other judgements of a purely objective kind is that, whereas in matters affecting fact, emotional judgements are both undesirable and basically immoral, in matters involving values, though intellectual honesty is essential, it is neither desirable nor possible to remain totally emotionally neutral. it is obvious, therefore, that, where value judgements have to 88 values be made and the values involved are perceived to conflict, it is impossible to remain emotionally uninvolved. one cannot be impartial between what is perceived to be ugly and what is perceived to be beautiful, or what is perceived to be just and what is perceived to be injustice. moreover, if what i have said about these values being self-standing is, as i believe, correct, there must from time to time arise a conflict in the application to one set of facts of more than one yardstick, since neither can be defined in terms of the other, or in terms of a common denominator. there can be no common ground between, for instance, the aesthetic yardstick and the yardstick of morality where these are seen to conflict. in the sense that there is no room for self-deception in such matters, intellectual honesty may frequently provide a means of escape. but there can, in principle, be no accommodation between the two sets of principles where the two yardsticks yield opposite answers to the same set of facts. it is for this reason that, without the smallest claim to originality, i say that there must be a transcendent value, not in the sense of a summum bonum which i have already rejected, or the utilitarian concept of the greatest happiness of the greatest number, which, for different but not dissimilar reasons, is intellectually unacceptable but one which pervades the whole field and infects the different scales of value by a sort of pervasive osmosis. i think that plato must have had something of this kind in mind in the charmides where he makes his character say, "it is not the life of knowledge, not even if it included all the sciences, that creates happiness and well being, but a single branch of knowledge the science of good and evi1.,,1the trouble is that the difference between good and evil is itself a value judgement and involves weighing in the balance a variety of different and often conflicting facts and factors, and applying these to a single concrete set of facts. the 'l' factor alone pervades the whole mass of conflicting argument and interest. is this original or am i being unctiously religious? i think not. in the summer of 1978 i was staying in scotland at the house of a friend. at the time i was deeply distressed in heart, mind and spirit. to give me something to do, my host recommended me to read a biography of the emperor augustus by the late john buchan, later the first lord tweedsmuir, himself a serious scholar as well as the author of enjoyable adventure stories. as i read the book i came across a quotation in latin from the philosophical works of cicero (in point of fact his treatise on the laws), which contained the remarkable sentence "we have a natural propensity to love our fellow man, and that is the foundation of all law." the more i reflected about this sentence, the more remarkable it seemed to me to be. it was pre-christian and therefore owed nothing to christian or jewish scripture. to cicero's world, buddhism and the vedas were unknown. although cicero had more qualification than i to call himself a philsopher, he was not all that original and must have drawn this idea from the intellectual atmosphere of his day. but the more i thought about it the more sure i became, that, whether the thought was original or not, he had hit 1. charm ides gowen's trans.), p.174. 89 the denning law journal upon a profound truth. he made his judgement in the course of a defence of the doctrine of natural law, an expression which has become almost a dirty word among lawyers and philosophers alike. this is perhaps not the place for me to discuss whether the doctrine quite deserves the obloquy which it now generally receives, though it is not at all far removed from the subject matter of this lecture. i will instead pursue the thought behind the ciceronian quotation. "we have a natural propensity to love our fellow men and that is the foundation of all law." this is not the first time i have used the .quotation, and every time i have used it i have come in for a good deal of thoughtful criticism. for this purpose i disregard those who argued that i have mistranslated the sentence. i am sure that i have not. but relevant to my present argument is the criticism which i received from an intelligent lady, who, having read it said, somewhat tartly, "what cicero should have written was that we have a natural propensity to hate our fellow men." i took this criticism seriously, because it was a re-assertion of another doctrine in which i profoundly believe, namely the· doctrine of original sin. whatever else may be said about christian theology i would have thought that, properly understood, and not overstated as some theqlogians are apt to do, original sin is the one doctrine of the church which could be verified empirically by experience. unlike the animals, which in other respects he so closely resembles, man has a flawed nature. he is the only creature who systematically muddies his own face, breaks his own toys and degrades and humiliates, murders and rapes his fellow human beings. when people call football hooligans or the belfast murderers animals they do ~n injustice to the animal kingdom. but this seems to me to support rather than undermine my thesis about the relationship between the 'l' factor and value judgements. in the myth of eden it was the ability to distinguish between good and evil, and therefore to choose the latter, which constituted the fall of man. in common with other values, love is at the top of a scale to which there is an opposite and negative bottom. this is characteristic of them all; ugly as opposed to beautiful, unjust as opposed to just, cruel as opposed to kind, and so on. this is an odd feature of the value judgements because although, in one sense evil seems to have a positive nature (it is difficult to think of hider, stalin, gadafi or khomeini except in terms of positively demoniacal), in another context it is impossible not to accept the doctrine of the medieval school men (malum est privatio boni evil is the absence of good), just as one can say that dirt is definable as matter in the wrong place, or a weed a plant in the wrong place, or a bad taste joke as a funny remark made at an unsuitable time or in an unsuitable context. nevertheless, each of these examples illustrates an odd point about these values and value judgements generally. the negative end of the scale (if this is not a question begging description), can be thought of only in terms of the absence of the factor constituting the positive end. the opposite of justice can variously be described as arbitrariness, anarchy or tyranny. but none of these words make sense unless we have a clear sense of what constitutes the positive end of the scale in what is just or unjust. there are various sorts of cacophony, but only 90 values one music. there are various sorts of unkindness, but only one positive kindness, various ways of missing a due proportion in a picture or a landscape, but only one balance, various ways of missing a target (odd man out this time), but only one way of hitting it. it is in the nature of the value judgements to put approval at one end of the scale and disapproval at the other. thus, with the 'l' factor, love only is positive and hate multifarious. there is, however, something about the 'l' factor which differs from other value judgements. it is not a judgement at all. it is a motivation. it can only be described as a state of mind or rather soul or spirit, and not as part of the world of concrete and particular things and events. it is not a summum bonum, a highest good, not an end to be achieved by means, but a primum mobile, a first cause, perhaps indeed the cause of creation itself. it is the leaven in the lump, the salt in the stew, permeating the whole, but not constituting a separate part of it. of all the value judgements and all values, one end of the scale is positive, the other negative, and, without agreeing in the least to the philistine proposition that such judgements are simply subjective states of mind, one is driven, despite all one's prejudices to the contrary, to assert that the positive values within the human experience are the marks of wisdom, experience, judgement, knowledge, intuitive percipience, proper analysis, intellectual integrity, and scholarly discipline. the 'l' factor is not the same thing as good, justice, beauty, kindness, neighbourliness. nor is it capable of definition in terms of anything other than itself. it is common to all the values and, in the socratic world of ,apetll, or virtue, it is the mark of the congruence of the wise in opinion, the only republic in which there is no such thing as privilege and no damn nonsense about equality. 91 unincorporated associations: property holding, charitable purposes and dissolution 281 denning law journal 2014 vol 27 pp 281-290 case commentary ssh...don’t tell the children! (no duty to warn descendants that they may have inherited a serious medical condition) abc (claimant) v (1) st george’s healthcare nhs trust (2) south west london and st george’s mental health nhs trust (3) sussex partnership nhs foundation trust (defendants) [2015] ewhc 1394 (qb) karen dyer* 1. introduction in this edition of the denning law journal we are celebrating the 800 years of the magna carta, but compared to some declarations the magna carta is a mere fledgling. those with knowledge of the medical profession will be well versed in the hippocratic oath, 1 which garnered a fundamental role in medical training during the hellenic period. 2 in more recent years, the hippocratic oath has been revitalised in the form of the declaration of geneva, 3 and is still used as part of medical training today. over time the oath has been modified to adopt a more progressive stance, 4 nevertheless in one key ethical principle remains untouched, that of confidentiality. * senior lecturer in law, university of buckingham 1 named after hippocrates who was born on the greek island of cos. he lived between 460-380 bc approximately. he was a renowned physician and teacher of medicine and belonged to a guild of doctors known as the ascelepiadae. although attributed to him, some believe the oath „predates his own school‟: see jk mason and gt laurie, mason & mccall smith’s law and medical ethics (9 th edition, oxford university press 2013) 3. 2 from 510-323 bc classical greece. 3 first adopted by the general assembly of the world medical association at geneva 1948, the most recent version was modified and agreed in 2006 at divonne-les-bains, france. 4 the introduction of the abortion act 1967 could be considered a flagrant breach of the hippocratic oath. case commentary 282 english law pays great respect to the principle of confidentiality; as noted by the supreme court in 2013 it is “an overriding principle and is central to trust between patients and doctors”. 5 english law also ensures that the “obligation of confidence is capable of surviving the death of the patient”. 6 this does not mean that a patient‟s confidentiality is always maintained, and there are a number of situations where information is shared with third parties, 7 for example where the law demands disclosure, 8 if a doctor suspects his or her patient is the victim of abuse, 9 or where significant public interests exists. 10 however, in the recent high court decision in abc (claimant) v st george’s healthcare nhs trust and others 11 the court was emphatic that a duty of care in regards to disclosure of confidential information was not owed to the direct descendants of those with severe hereditary conditions. 2. background to the case in 2007, the claimant‟s (abc‟s) father (f) shot and killed abc‟s mother (f‟s wife). he was convicted of voluntary manslaughter on the grounds of diminished responsibility. however it was not until 2009 that the underlying cause of the “diminished responsibility”was identified 5 west london mental health nhs trust (respondent) v chhabra (appellant) [2013] uksc 80, [33] (lord hodge). 6 lewis v secretary of state for health [2008] ewhc 2196 [24] echoing the declaration of geneva which states „i will respect the secrets which are confided in me, even after the patient has died‟. 7 the least controversial situation will occur where the patient themselves, authorises medical information to be shared to a third party. 8 for example if there is a statutory requirement that a patient has a notifiable disease e.g. cholera or smallpox. 9 r v alan wilson [1996] crim lr 573; r v emmett [1999] ewca crim 1710. 10 w v egdell [1990] 1 all er 835. 11 abc (claimant) v (1) st george’s healthcare nhs trust (2) south west london and st george’s mental health nhs trust (3) sussex partnership nhs foundation trust (defendants) [2015] ewhc 1394 (qb) (abc v others). this was an application by the defendants to strike out the claim. (if the courts find that a case does not specify a cause of action, or that there is no reasonable grounds for either bringing or defending the claim they have the power to strike out part or all of it and bring an end to proceedings quickly). the denning law journal 283 when a full medical diagnosis of huntingdon‟s disease (hd) made. 12 as part of his rehabilitation, family counselling was engaged between f and his daughters, (one of whom was the claimant, abc). when his hd was first diagnosed, f demanded that doctors obey their duty of confidentiality and withhold knowledge of the condition from abc. four meetings occurred in 2009 between f and abc with a representative of the family therapy team. additionally, abc submitted that she had attended various multi-disciplinary meetings relating to her father‟s care. during these conferences, healthcare workers honoured f‟s desire to keep his diagnosis a secret from abc, albeit that there had been discussions among staff as to whether the claimant should be informed about the diagnosis, 13 particularly as she was pregnant at the time. abc gave birth to her daughter in april 2010, oblivious to her father‟s diagnosis of hd. she may have remained ignorant of this indefinitely had she not been accidently informed of it in august of that year by one of her father‟s doctors. 14 the discovery of this, at the time and in the manner that it occurred, was said to have caused psychiatric injury to abc. at this point it is apposite to discuss hd to understand the rationale behind the claim and its defence. 3. huntingdon’s disease (hd) hd is the result of a genetic error. there are some 20,000 to 25,000 genes in the human body, (usually) arranged in 46 chromosomes: 22 pairs of autosomes, and one “pair” of sex chromosomes. hd is caused by a mutation to one specific gene, known as the htt gene, located on autosome 4. this htt gene is responsible for producing a protein, known as huntingtin. 15 a mutation to the htt gene causes the body to produce a rogue version of this protein. 16 for reasons as yet unknown by scientists, 12 this is also known as huntington‟s chorea. chorea was extrapolated from the greek word „khoreia‟ which means „dancing‟ as those with this condition often develop random limb movements which can appear to be dance-like. 13 abc v others [5]. 14 ibid [2]. 15 this gene was discovered in 1993. those with hd produce a mutated version of huntingtin. 16 the mutation involves segment known as a cag trinucleotide repeat. this segment is composed of 3 out of 4 nucleo-base, namely cytosine, adenine, and guanine (the other being thymine). to operate fully, this cag segment needs to repeat 10 to 35 times within the gene, but for those with hd the cag segment is repeated 36 to „more than 120 times‟. the more repeats that occur, the more case commentary 284 the mutant form of protein ultimately inflicts damage to nerve cells in various regions of the brain including the basal ganglia and the sub-cortex. amongst other physical symptoms, 17 the damage leads to “behavioural problems”. 18 unlike autosomal recessive hereditary conditions which require both parents to be sufferers of the condition or carriers of the faulty gene in order to inherit the full condition, 19 hd is an autosomal dominant condition. 20 therefore if one parent has the faulty gene, there is a 50 per cent chance that each of their progeny will inherit the gene, and ultimately develop hd. 21 as with many conditions, symptoms vary enormously from person to person. some will face only mild alternations to their daily routines whereas for others symptoms will be “profound”, affecting everyone around them. 22 f‟s condition was “thought to have had some bearing” on the murder of his wife. 23 having discovered her father‟s condition, abc grew concerned for not just her well-being but additionally that of her daughter. in 2013 her fears were confirmed that she had inherited hd. she was additionally concerned for the welfare of her child. as of date it is unknown whether her daughter has inherited that disease as well, as testing for hd does not take place before the age of majority. 24 however, abc contended that had she known that she had a heredity condition, she would have undergone a termination of her pregnancy. severe the condition is likely to be. genetics home reference (us national library of medicine), „what is huntington disease?‟ http://ghr.nlm.nih.gov/condition/huntington-disease accessed 2 july 2015. 17 such as the „dance-like‟ physical movements, (see further n 12). 18 huntingdon‟s disease association, „behaviour problems‟ (may 2012) http://hda.org.uk/hda/factsheets/ accessed 2 july 2015. 19 such is case, for example with those born with congenital adrenal hyperplasia (cah). 20 occasionally a sufferer will have a spontaneous mutation without his or her parents passing on the condition, but it may be the case the in the parent the condition is extremely mild and it has not been diagnosed. 21 as there will always be at least a 50:50 chance that they inherit the autosome 4 which is carrying the faulty gene. (if both parents have the condition the chance of inheritance will be greater.) 22 huntingdon‟s disease association, „behaviour problems‟ (may 2012) http://hda.org.uk/hda/factsheets/ accessed 2 july 2015. 23 abc v others [17]. 24 in england this is 18 years of age: section 1 family law reform act 1969. the denning law journal 285 abc therefore argued that the defendants, (doctors and other professionals) owed her a duty of care to disclose her father‟s hd, and in not informing her, doctors had breached their duty of care towards her. she contended that she had suffered psychiatric harm as a result of the lack of disclosure. not only that, abc submitted that if her daughter has also inherited the disease, this would cause additional financial expense. she further argued that the defendants had violated her rights under article 8 of the european convention of human rights (echr). by contrast, the defendants sought a motion to strike out the claim at an early stage on the basis of no reasonable cause of action, i.e. that firstly, although the duty of confidentiality might not always be absolute, this did not create a duty of care; and secondly, that no breach of article 8 echr could be proved in this particular claim. in regard to the claim in negligence, the defendants relied on the leading judgment of caparo v dickman, 25 which specifies the three-part test to be used when assessing if a duty of care is owed in novel situations. interestingly the defendants were prepared to accept that there was “sufficient proximity” between themselves and abc and that any injury abc suffered as a result of non-disclosure would have been “reasonably foreseeable.” 26 however, they argued, there was no reasonable prospect of the claimant establishing that it would be fair, just or reasonable to impose on the defendants a duty of care towards the claimant in this regard, 27 and put forward nine reasons why a duty of care should not be found. 28 i. what was put against the public interest in preserving confidence in the present context was not a public interest in disclosure, but the private interest of the claimant. ii. the law of confidence allowed a doctor to disclose confidential information in certain circumstances (...) the claimant was contending for a duty to do so. consciously or unconsciously, this might encourage doctors to breach confidence where it might not otherwise have been justified. 25 caparo v dickman [1990] 2 ac 605. 26 abc v others [11]. 27 ibid. 28 ibid [13]. these submissions are discussed later. case commentary 286 iii. doctors would be subject to conflicting duties, liable to be sued by their patient if they disclose information which should have remained confidential, liable to be sued by a third party, such as the claimant, if they fail to disclose information which they should have revealed. iv. if a doctor is subject to a duty of care in some situations to disclose information to third parties, it will undermine the trust and confidence which is so important to the doctor/patient relationship. it may lead to patients being less candid with their doctors. (...) v. if doctors owed a duty of care to third parties, it may result in doctors putting pressure on their patients to agree to disclosure to avoid the risk of being sued by third parties. vi. some third parties may not wish to receive information. yet a doctor may not be able to explore whether this is the case without effectively imparting the information itself. vii. it is possible that the third party may suffer psychiatric harm if he or she is told the information in question. the doctor will be in a dilemma as to how to explore whether this is the case when the third party is not or may not be his or her patient. viii. doctors receive a very great deal of confidential information. it would be burdensome to place on them a duty to consider whether any of it needs to be disclosed to third parties. the time and resources committed to this will be a distraction from treating patients. ix. this significant extension of a doctor‟s duty of care would be contrary to the incremental way in which the law of negligence ought to progress. in summary, whilst it was noted that on occasions there are times when doctors are owed a positive duty to breach confidentiality, it was the denning law journal 287 argued that it would “not make it fair, just or reasonable”, to impose a duty of care on the defendants to the claimant, “in the current case.” 29 conversely the counsel for abc argued, inter alia, that the claimant was “not just any third party,” 30 but f‟s daughter; that f‟s ability to make an informed decision to withhold his diagnosis had not been properly addressed by his healthcare workers, 31 moreover that, the general medical council guidance indicated that doctors “might be under a positive duty to do disclose information” on occasions. in conclusion counsel argued that finding a duty of care in this situation would not be “so novel a development as the defendants submitted”. 32 nicol j found that the claimants had relied on cases which were conventional doctor-patient relationships, 33 consequently to find a duty of care in this case would be a novel departure. by comparison, the defendants relied on the house of lords decision of x v bedfordshire county council 34 and the subsequent court of appeal decision in powell v boladz. 35 these stipulated categorically that no duty of care was owed to those with close family connections, but merely to the person themselves. further the case of x warned of the danger of 29 ibid. 30 ibid [15]. 31 ibid. 32 ibid [16]. 33 a v east kent hospitals university nhs foundation trust [2015] ewhc 1038 (qb) where a mother to be complained that she had not been told during antenatal visits that her baby might be suffering from a chromosomal abnormality. she would have terminated the pregnancy had she known. nor was the case of angela p v st james and seacroft university hospital nhs trust [2001] ewca civ 560 of any help to the claimant. in this case a woman had given birth to a child with a disability after undergoing sterilisation. it was held that the hospital was liable for the costs of bringing up a disabled child, but not the costs which would have been incurred in bringing up a healthy child. 34 x v bedfordshire county council [1995] 2 ac 633, where parents, having had their children removed from them for fear of abuse, brought claims in negligence against those authorities responsible on the ground that the abuse assessments were carelessly made. the claims were said to offer no reasonable cause of action and were struck out. 35 powell v boladz [1998] lloyds rep med 116. in this case, parents brought a claim in negligence, alleging, that the father suffered psychiatric damaged on discovering that various records connected with his young son‟s treatment had been altered after his death. the court was emphatic that the doctor owed no duty of care to the parents, only to the son. http://www.bailii.org/ew/cases/ewca/civ/2001/560.html case commentary 288 imposing additional levels of duty of care on public bodies lest they adopted a defensive mode of performance. 36 very little argument was put forward as regards the article 8 issue. it was specified that the claimant had to prove “that the positive duty implicit in article 8 required the defendants to disclose her father‟s condition to her”. 37 the judge did not find this was the case. overall nichol j held that to found a duty of care would be a “radical departure” 38 from current law and that overall “the balance (came) down decisively against the claimant” and acceded to the defendants‟ request to strike out the claim. 39 4. discussion this is an unpopular decision. 40 it is certainly unsatisfactory in a number of respects. gilbar and foster point out that abc‟s autonomy and her reproductive rights, at least equalled that of f‟s right to confidentiality, 41 and that the decision in this action “is embarrassingly at odds” with the leading judgments of montgomery v lanarkshire health board 42 and chester v afshar. 43 they further emphasis the importance of the specific epidemiology of hd itself as hd “carries an immutable death sentence”. 44 when looking at the nine points point forward by counsel for the defence, it seems relatively easy to rebut a number of them. 45 at point (i) it was noted that this was not a matter of “public interest in disclosure, but the private interest of the claimant” and further (iv) that would undermine the trust and confidence in the doctor/patient relationship. it is 36 x v bedfordshire county council [1995] 2 ac 633 [750]. 37 abc v others [37]. 38 ibid [27]. 39 ibid [38]. 40 roy gilbar charles foster, „do i have a right to access my father‟s genetic account?‟ practical ethics (oxford, 29 may 2015) http://blog.practicalethics.ox.ac.uk/2015/05/do-i-have-a-right-to-access-myfathers-genetic-account/ accessed 5 july 2015. 41 ibid. 42 montgomery v lanarkshire health board [2015] uksc 11. 43 chester v afshar [2004] ukhl 41. 44 gilbar and foster (n 40). 45 abc v others [13]. it is submitted that point ix) the „significant extension of a doctor‟s duty of care would be contrary to the incremental way in which the law of negligence ought to progress‟ is a matter of opinion rather than law. the denning law journal 289 acknowledged that there was a private interest of the client, but it can also be argued that it is in the general interest to understand the morphology behind a murder charge. it is submitted when a serious crime is committed it is in everyone‟s interest to understand a contributory factor to this. point (ii) suggested that this “might encourage doctors to breach confidence where it might not otherwise have been justified”. it is submitted that this would not be the case in general. point (ii) puts the opposing view that if a duty was found in this case, in the future a doctor may be sued for nondisclosure in similar circumstances, or put pressure on patients to disclose (v). it is possible that this is the case, but narrowing down the duty to direct descendants would limit the scope of the duty. this would also mitigate the argument put forward in point (viii) in terms of relieving the burden and (perhaps more pertinently) the cost of the extent of the disclosure. the most interesting tensions occur at points (vi) and (vii). these arguments suggest that “third parties may not wish to receive information” and “may suffer psychiatric harm if…told the information in question.” whilst the first of these propositions is a valid concern, current english law already addresses this latter issue succinctly. by virtue of the data protection act 1998 46 (dpa) and its supporting secondary legislation, the data protection (subject access modification) (health) order 2000 (si 2000/413), 47 article 5(1) specifies that exceptions from disclosure under section 7 dpa apply if such disclosure “may cause serious harm to the physical or mental health” of the person concerned, “or any other person”. 48 furthermore, the courts have confirmed that access to information is not an unqualified right, provided the non-disclosure can be justified. 49 it is submitted that if abc was considered competent, and capable of receiving vitally important information about her health, that this should have been recognised, and her father‟s diagnosis disclosed, particularly in light of all the surrounding facts. f had murdered his wife. in order to reconcile f and his daughters family therapy was employed. it is submitted that it would have been 46 section 7 of the dpa specifies that individuals may make a written request to an organisation to see any personal information held about them by that organisation. 47 this replaced the data protection (subject access modification) (health) order 1987 (si no 1903). 48 article 5(1) provides that „personal data to which this order applies are exempt from section 7 in any case to the extent to which the application of that section would be likely to cause serious harm to the physical or mental health or condition of the data subject or any other person‟. 49 roberts v nottinghamshire healthcare nhs trust [2008] ewhc 1934 (qb). case commentary 290 conducive to all if f‟s condition were discussed in an open forum. it is difficult for children to come to terms with the murder of one parent by another and to discover that, in part, this was caused by a circumstance beyond f‟s control would have assisted in this matter. further, having discovered that f had such a condition, and knowing that his daughters consequently had a 50 per cent of inheriting this, it seems unreasonable that silence should prevail. 50 to encourage situations where the law upholds non-disclosure is perilously close to creating legal obligations to withhold essential health information from the persons concerned. a move in this direction would be unduly harsh. whilst not wishing to add to their burdens, it does not seem unreasonable that a doctor‟s duty is extended to disclosing genetic information to direct descendants. 51 this decision potentially creates a further barrier to those who wish to understand their medical conditions. it has long been the situation that testing for hd cannot be undertaken until a young person reaches the age of 18. this means that direct descendants of those with hd, who often witness the demise of their parents or grandparents, are left in limbo until they are old enough to be tested themselves. this is not a satisfactory position. a considerable length of time has passed since professor dickenson‟s article promoting the right to earlier testing was published, 52 but although many are in argument with the stance taken by dickenson, the situation remains the same. let us hope that common sense will prevail, and this case does not act to prevent any further disclosure of truth. 50 albeit that hd cannot be prevented, the symptoms can at least be ameliorated with medicine, knowledge and care. 51 even if such information was not to be disclosed until children reached the age of 18. 52 donna l dickenson, „can children and young people consent to be tested for adult onset genetic disorders?‟ (1999) 318 bmj 1063. 143 the denning law journal 2017 vol 29 pp 143-148 book review current issues in succession law edited by birke hacker and charles mitchell (bloomsbury, london 2016) isbn 978-1-78225-627-4 judith bray* as the editors observe at the start of this book, the law on succession is a “neglected field” in england whilst continental and comparative lawyers have rediscovered it to be of immense practical importance which deserves greater academic attention. the rules of succession are of great significance to all; as pointed out by penelope reed in chapter seven there is no shortage of probate disputes that end up in the chancery division as a result of “… an ageing population, the increase in the incidence of dementia and the rise of house prices making estates worth fighting over…” since death is inevitable and everyone will die either testate, having made a valid will or intestate, without a valid will the law of succession affects us all. in order to address this gap in the law a conference took place in july 2015 at all souls college oxford attended by chancery judges, a member of the court of appeal as well as a number of leading academics and practitioners. this book comprises eleven of the conference papers. the result is an excellent book both as a reference work for students and practitioners and also of interest to the wider public who may be drawn in by the subject matter and possibly the picture on the loose leaf cover showing david wilkie’s wellknown painting reading of the will. in many ways the most engaging feature of this collection is the breadth of subjects covered. they range from the more traditional succession issues such as the reform of the rules of intestacy in chapter one and mutual wills in chapter five to the more challenging issues of testamentary dispositions in favour of informal carers in chapter eight and proprietary estoppel in chapter four. much credit should be given to the conference organisers and book editors for ensuring that the conference and later the book had sufficient breadth and did not dwell overly on the minutiae of the rules of drawing up a valid will although that said chapter four shows how this in itself embraces many wider legal issues. curiously, the book starts with a chapter not about the rules that apply in drawing up a will but about the rules of intestacy when someone dies * barrister, professor of law, university of buckingham; director of streetlegal. book review 144 without making a valid will. this has traditionally been a difficult issue. when a person dies intestate the law must step in and apply rules which reflect what the law deems to be the wishes of the deceased had he or she made a valid will or thought about it. the chapter is a comprehensive review of the development of the rules of intestacy. it manages to interweave some pertinent observations on the current state of the law with some proposals for how reform should proceed if recommendations from the law commission are adopted. it highlights the difficult position of cohabitants whose rights are so often forgotten in english law. this chapter links well to chapter six where birke hacker one of the editors of the book reflects on how the law approaches the rectification and interpretation of a will. the quotation from sir horace walpole made in the first paragraph1 sums up a view taken by many in relation to the court’s ability to rectify a will. walpole writes having heard that a recently deceased royal naval officer sir william rowley had disinherited his son and grandson: … it is rather leaving an opportunity to the chancery, to do the right thing, and set such an absurd will aside. do not doubt it. the law makes no bones of wills. i have heard of a man who began his will thus: ‘this is my will, and i desire the chancery will not make another for me’ oh but it did … this is an excellent introduction highlighting the difficulty that the court has in attempting to rewrite what the testator had in mind when his intentions are not clear. to what extent should the law and the court play a role in deciding how one’s estate should be distributed? there is a link here with cases of intestacy where the law has to second guess who the deceased would have wanted to benefit when there is no valid will to indicate such wishes. as birke hacker states “the problem is that we do not know what a testator in his innermost mind really wanted, and we have to establish his intentions as best we can from ‘his last will and testament’ he has left behind”. superficially in this case unlike intestacy the issue is one of interpretation of the will but the writer develops the wider issues such as whether the courts should interpret the will from accepted rules of interpretation of any document or from the point of view of the testator. using examples from german law she shows how the courts might come to a quite different conclusion according to the particular approach taken by a court.2 the german courts will always interpret the will from the point of view of the testator. so she explains where a testator leaves his ‘library’ 1 ch 6 what’s in a will? 132. 2 ibid 137. the denning law journal 145 to a legatee3 and it can be shown that the testator often referred to his wine cellar as his ‘library’ then the bequest is of the wine not of the books. at the heart of this chapter is the recently decided united kingdom case of marley v rawlings4 where a testator had made it clear that he wished his estate to pass to his wife and if she predeceased him then to the man that the couple called their son, but owing to an error in each of the wills of the parties this intention was no longer clear. everyone concerned was fully aware of what the testator had intended but it took the eminently pragmatic approach of the supreme court to resolve the issue. the writer highlights the importance of this fairly simple case because it is one of the few cases to reach the highest judicial level. it also seeks to address the problem of whether extrinsic evidence is admissible when interpreting a will. unlike other formal documents the courts have interpreted the wills act 1837 very strictly. the courts have always been reluctant to admit extrinsic evidence even when it may assist in the interpretation of the testator’s intentions. linking well to the question of interpretation and rectification is the discussion on the mutual wills doctrine in chapter five. as highlighted by the author ying khai liew the english courts have applied the doctrine of mutual wills since the eighteenth century5 but the precise definition of its operation, the legal principles involved and its underlying rationale remain difficult to define. the author suggested that he would propose a new way of understanding the mutual wills doctrine consistent with its orthodox principles in which to a large extent he succeeds. this doctrine has always appeared to undermine the principle of testamentary freedom. as explained by the author in a typical mutual wills case two individuals come to an agreement that the first to die (a) will leave his property to the survivor (b) with b promising to leave whatever is left at her death to one or more ultimate beneficiaries c.6 this is dependent on the survivor b promising not to revoke her will after a’s death. the author challenges all existing explanations for upholding the mutual wills doctrine in particular the view that b’s obligation is ‘floating’ or suspended during b’s lifetime and offers a range of alternative explanations. to some extent his conclusion is a new understanding but it is a compromise relying on two distinct analyses arising from different facts and he concludes that perhaps many of the problems arise from an attempt to apply the same explanation to both sets of facts. the cases fall into those where b receives property from a to be held for c and those cases where b promises that property owned by b absolutely will be held for c. his analysis shows that in the first case a 3 ibid. 4 [2014] uksc 2, [2015] ac 129. 5 ch 5 current issues in succession 99. 6 ibid 100. book review 146 constructive trusts arises making b trustee for a but in the second case a constructive trust arises compensating a who has relied on b’s promise. the modern challenges to testamentary freedom are also examined by rebecca probert in chapter two “disquieting thoughts: who will benefit when we are gone?” this chapter explores the ability of individuals to challenge the disposition of an estate. in a wide ranging and fascinating review of the ability of challenges made to the disposition of an estate over the past eighty years, she maps the introduction of legislation giving such rights of challenge. setting this in the context of victorian and early twentieth century wills when almost complete freedom of disposition existed she illustrates the difficulties that such freedom created often using examples from literature. she reviews the changes in the law from the 1938 act7 to the most recent amendments made by the inheritance and trustees’ powers act 2014 and concludes with an analysis of the most recent changes. however this analysis goes much further than merely commenting on the changes she manages in this short section to evaluate the whole basis of the right to make a claim for financial provision with a wealth of views from a range of academics. her conclusion highlights the incongruity of allowing a claim for financial provision on the death of a relative which in life could not have been sustained. using a number of very recent cases she shows how finely divided the courts have been in the past as to how such legislation has been applied and she rightly questions why one type of choice is seen as trumping the other in particular why should the express words in the will not have priority? in a collection as wide ranging as this it is impossible to consider in full all the different aspects of the law on succession but the review of proprietary estoppel in chapter four by ben macfarlane is particularly noteworthy. this chapter examines the claim that in upholding the doctrine of proprietary estoppel the settled aspects of the law of succession are undermined. he quickly challenges such a view stating the well-known view that proprietary estoppel prevents parties from unconscionability by exploiting strict legal rules. his short succinct chapter succeeds in explaining the justification for allowing proprietary estoppel to take precedence over provisions in a will. starting with one of the more problematic cases suggitt v suggitt8 he shows the difficulties in applying the doctrine. here a father had specifically excluded his son from his will but the son brought to the court evidence of promises made during the father’s lifetime that he would inherit the farm and he had positioned his entire life on this promise. the difficulty here was that the court was upholding and giving legal effect to an informal non-contractual promise 7 the inheritance (family provision) act 1938. 8 [2012] ewca civ 1140, [2012] all er (d) 100 (oct). the denning law journal 147 above a validly executed will. he poses the important conceptual question as to whether proprietary estoppel is sufficiently distinct in its requirements and operation from contract law. his analysis shows that such promises can be upheld in spite of their informality and rather than basing their validity in contract law such rules are based in equity and are upheld in order to prevent injustice. one issue that could have been developed further is the question of the extent of the property that the claimant can claim. where the estate has increased in size since the promise was made it is unclear as to whether and on what basis the claimant can claim the increased estate. the chapter ends with some final thoughts where he reflects on the role of proprietary estoppel concluding that it cannot be invoked simply because there is a failing in the strict rules of contract law or succession but rather it should be limited to mitigating the severity of the strict rules of contract, succession and property law. the overlap between the law of succession and proprietary estoppel has long troubled lawyers and this chapter makes a strong case that proprietary estoppel does not undermine the law of succession. perhaps the most controversial chapter in the book is chapter eight which considers grounds for the reversal of gifts to informal carers. set in the context of the enormous increase in the need for social care and the inability of formal provision to meet this need, brian sloan shows how important informal social care has become in society; figures from the office for national statistics show that there are 5.8 million informal carers in england and wales. he points out that many suffer financial and health disadvantages as a result of their responsibilities and it is quite likely that recipients of such care may recognise the carer in their will either from gratitude or moral obligation. the focus of his discussion is on challenges made to a will based on undue influence. this is a difficult area of law because the dependency that may arise where a person is in poor health and reliant on others for day to day living sets the scene for opportunities for undue influence to take place. he summarises the difficulties in distinguishing between persuasion and genuine undue influence. although there have been many recent cases involving carers where claimants cite undue influence the modern judiciary frequently revert to nineteenth century guidance from sir jp wilde in hall v hall.9 wilde had concluded in that case that: …importunity or threats, such as the testator has not had the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort … if carried to a degree in which the free play of 9 (1866) 1 p & d 481. book review 148 the testator’s mind, discretion or wishes, is overborne, will constitute undue influence. by comparison, wilde held that “…other behaviour such as persuasion, appeals to the affection or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like … are all legitimate…” sloan describes the difficulties that the courts have faced in recent cases in distinguishing what constitutes a “sentiment of gratitude for past services or pity for future destitution” and what “constitutes behaviour that interferes with the free play of the testator’s mind”. he shows that evidence brought to court of independence of mind will defeat a claim of undue influence as in parker v litchfield 10 where the will of an independently minded grandmother was upheld in spite of a claim of undue influence by her granddaughter. where a testator is shown to be in poor health or of weak disposition the court will consider the facts in a different light. so in schrader v schrader11 a judge set aside the will of a mother leaving her house entirely to one of her sons who had become her carer because there was evidence that the mother was a vulnerable lady in her mid-nineties and there was cumulative evidence that the son had exerted behaviour likely to influence his mother. the issue is often one of evidence and burden of proof. should the court presume undue influence in cases involving carers? he concludes that in the current social context the courts should not set aside testamentary gifts to informal carers lightly and it is important not to apply the same principles as those used in inter vivos dispositions where a presumption of undue influence may apply. this is a most interesting collection of essays. it highlights an area of law which has suffered neglect in recent years and yet as many of these essays show these are very topical and complex issues which need to be addressed today both from an individual’s point of view and also as a matter of policy. 10 [2014] ewhc 1799 (ch). 11 [2013] ewhc 466, [2013] all er (d) 89 (mar). the denning law journal 5 denning law journal 2019 vol 31 pp 5-40 ‘show me your horse and i will tell you who you are’: brexit, a chance to acknowledge animal sentience in law jessica horton* jonathan merritt** introduction this article is written to explore the current position of the concept of animal sentience in uk animal welfare law. this is based on research carried out since 2017 but there have been political and legal developments which bring the issue to the fore now, chiefly these are concerned with brexit and the eu definition of animal sentience contained in the lisbon treaty. at time of writing, there could scarcely be less certainty about the likely final outcome of the united kingdom’s endeavours to exit the european union. the united kingdom became a member state in 1973 by virtue of the european communities act 1972 and it is essentially this legislation that is being repealed as part of the process of leaving. the primary legislation of the european union has evolved since the treaty of rome 1957 which the united kingdom became a signatory to. that legislation is now in the form of the treaty on the functioning of the european union (tfeu) and it is article 50 of this treaty that was triggered by theresa may’s conservative administration as a result of the second referendum held in 2016, the first, in which ‘remain’ won, was held in 1975. prime minister may’s government set the date of leaving as 29th march 2019. however, the house of commons could not reach agreement on multiple occasions over the withdrawal agreement struck by may with the eu. more energetic debate took place in the days leading up to thursday 14th march 2019 when the commons voted to ask for a delay to the leaving date. may then secured a delay until 31st october 2019, ultimately resigning on 7th june as she could make no further progress persuading parliament to accept her deal. a leadership contest is underway at the time of writing with boris johnson mp the favourite * phd candidate at northumbria university, first class honours graduate and 2017 evenden prize winner at de montfort university, department of law. ** research co-ordinator, centre of research and innovation for sport, technology and law (cristal) and senior lecturer in sports law, specialising in equine sports law, de montfort university, department of law. 6 ‘show me your horse and i will tell you who you are’: brexit, a chance to acknowledge animal sentience in law to win. johnson has made it clear he intends to leave the eu at the end of october with or without a deal in place. if parliament will not agree to allow a new prime minister johnson to take the united kingdom out of the eu without a deal, a general election is a possibility as is not leaving at all if a much-discussed third referendum does take place thereafter. consequent on all this, it is difficult at present to find many people, either on the ‘leave’ or ‘remain’ side of the argument, with positive views about how brexit has been managed thus far, or the politicians involved in its progress. this paper does however discuss a glimmer of hope from this apparent chaos, not for the human population necessarily but for the fauna of these isles, not least among those, and given the focus of this article, the equine population. that is to say whatever view is taken of brexit, it has at least brought to the fore the definition of animal sentience as enshrined in english law for reconsideration. the repeal of the sentience definition in order to explore fully the place of animal sentience in uk animal welfare law, it will be necessary to consider the fate of the eu definition of sentience. as a precursor to the current parliamentary process, the ‘great repeal bill’ made its way through the house of commons, designed to bring many existing eu provisions into uk law at the point of the country’s departure from the eu. there were a great many amendments debated, including 15 where the government lost on their wording in the house of lords and 170 further changes that were proposed by that upper house during the so-called ‘ping-pong’ stage, where the text passes between the houses repeatedly.1 in total, parliament spent an estimated 272 hours debating the bill.2 this is unprecedented and reflective of the deep divisions within the political parties and indeed the country, as to what the future relationship with the eu should be. at the time of those debates, a ‘hard brexit’, with no agreement, a reversion to world trade organisation (wto) trade tariffs and an abrupt departure from all eu institutions and treaties looked more likely than it does now; but as this article is being finalised, the situation is changing almost hourly. one of the votes mentioned above produced an extreme media and social media reaction on its own; however, this was the vote effectively to repeal the concept of ‘animal sentience’ as it currently exists in eu law. the great repeal 1 ‘eu withdrawal bill: amendments and debates’ (institute for government, 2018) <www.instituteforgovernment.org.uk/explainers/eu-withdrawal-bill-amendments-anddebates> accessed 18 march 2019 2 ibid. http://www.instituteforgovernment.org.uk/explainers/eu-withdrawal-bill-amendments-and-debates http://www.instituteforgovernment.org.uk/explainers/eu-withdrawal-bill-amendments-and-debates the denning law journal 7 bill did not have a provision to include the following provision in uk law at all. it is currently found in the tfeu or ‘lisbon treaty’: in formulating and implementing the union’s agriculture, fisheries, transport, internal market, research and technological development and space policies, the union and the member states shall, since animals are sentient beings, pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the eu countries relating in particular to religious rites, cultural traditions and regional heritage.3 during the committee stage of the bill there had been unsuccessful attempts to include the principle in uk law as it stood, but without government support these failed. the administration’s response was that it wanted to ‘consider how it might explicitly reflect the sentience principle in wider uk legislation’.4 this raised the concern, voiced in the press and social media predominantly, that the vote against was a signal that parliament was not prepared to recognise the concept of animal sentience at all, or at least sufficiently, after march 2019. ministerial guidance was issued within days which attempted to refute his position. specifically, it stated that ‘[t]he vote … was the rejection of a faulty amendment, which would not have achieved its stated aims of providing appropriate protection for animals [and that the]…. prime minister has made clear that we will strengthen our animal welfare rules’.5 the alacrity with which this document appeared was perhaps a sign that the government was very much alive to the likely public backlash from a population that thinks of itself as a ‘nation of animal lovers’. this would not be welcome on top of internal and international widespread concern that the brexit process, whatever the merits of the vote in june 2016, has since then been characterised by seeming ineptitude and confusion on the uk side.6 this 3 article 13 of title ii, lisbon treaty, which came into force in 2009. 4 house of commons briefing paper number 8155, ‘animal sentience and brexit’ (parliament, 8 august 2018) <https://researchbriefings.files.parliament.uk/documents/ cbp-8155/cbp-8155.pdf> accessed 18 march 2019. 5 michael gove, mp, ‘animal welfare: written statement – hcws267’ (defra, 23 november 2017) <https://www.parliament.uk/business/publications/written-questionsanswers-statements/written-statement/commons/2017-11-23/hcws267> accessed 18 march 2019. 6 frances perraudin, ‘brexit vote is making uk a laughing stock abroad, says tim farron’ (the guardian online, 31 august 2016) <https://www.theguardian.com/ politics/2016/aug/31/brexit-vote-nigel-farage-making-uk-laughing-stock-abroad-timfarron> accessed 18 march 2019; ‘ftse 100 down as investors shun “laughing stock” https://researchbriefings.files.parliament.uk/documents/cbp-8155/cbp-8155.pdf https://researchbriefings.files.parliament.uk/documents/cbp-8155/cbp-8155.pdf https://www.parliament.uk/business/publications/written-questionsanswers-statements/written-statement/commons/2017-11-23/hcws267 https://www.parliament.uk/business/publications/written-questionsanswers-statements/written-statement/commons/2017-11-23/hcws267 https://www.theguardian.com/politics/2016/aug/31/brexit-vote-nigel-farage-making-uk-laughing-stock-abroad-timfarron https://www.theguardian.com/politics/2016/aug/31/brexit-vote-nigel-farage-making-uk-laughing-stock-abroad-timfarron https://www.theguardian.com/politics/2016/aug/31/brexit-vote-nigel-farage-making-uk-laughing-stock-abroad-timfarron 8 prompted michael gove, environment secretary and prominent euro-sceptic, to appear on national radio to further emphasise the government’s commitment to animal welfare and also to make the wider point that there is, in the government’s view, an erroneous widespread assumption that parliament cannot do better than the eu on a host of issues, from worker’s rights to environmental protection and in this case the maintenance of animal welfare.7 he urged the people to ‘trust’ the domestic democratic process to surpass the standards that the eu has mandated in this sector. as a first step a draft animal welfare (sentencing and recognition of sentience) bill 2017 was produced and consulted on between december 2017 and january 2018. a short period given the intervening christmas period when minds are not necessarily wholly focussed on draft legislation. nevertheless, the department for environment, food and rural affairs (defra) has responded to the consultation and made some changes to the bill consequent on that.8 chiefly those are around sentience being fully recognised in the new law and longer potential sentences. these proposals will be discussed further below. ‘the best way to find out if you can trust somebody is to trust them’ if the environment secretary wishes voters to believe that animal sentience will be fully enshrined in post brexit uk statutes, then a full analysis of uk law to date will be needed. ernest hemingway’s quote has much to commend it but an alternative, if less poetic, approach, at least where politics and law making are concerned, is to research past performance to establish whether the trust mr gove wishes to rely on in this specific context, is warranted. a study was already underway at de montfort university (dmu) into the very point gove touched on, the uk after theresa may’s brexit deal defeat’ (skynews online, 16 january 2019) <https:// news.sky.com/story/ftse-100-down-as-investors-avoid-the-uk-after-theresa-mays-brexitdeal-defeat-11608654> accessed 18 march 2019; ‘“a complete humiliation”, a “crushing defeat” and brextinction: global media reacts to brexit vote’ (cnbc news online, 16 january 2019) <https://www.cnbc.com/2019/01/16/global-media-reaction-to-theresa-maybrexit-vote.html> accessed 18 march 2019. 7 michael gove mp, speaking to john humphries on ‘the today programme’ of 24 november (bbc radio 4, 2017). 8 defra, ‘response to consultation of the draft animal welfare (sentencing and recognition of sentience) bill 2017’ (defra, 2018) <https://www.gov.uk/government/ consultations/draft-animal-welfare-sentencing-and-recognition-of-sentience-bill-2017> accessed 22 march 2019. ‘show me your horse and i will tell you who you are’: brexit, a chance to acknowledge animal sentience in law https://news.sky.com/story/ftse-100-down-as-investors-avoid-the-uk-after-theresa-mays-brexit-deal-defeat-11608654 https://news.sky.com/story/ftse-100-down-as-investors-avoid-the-uk-after-theresa-mays-brexit-deal-defeat-11608654 https://news.sky.com/story/ftse-100-down-as-investors-avoid-the-uk-after-theresa-mays-brexit-deal-defeat-11608654 https://www.cnbc.com/2019/01/16/global-media-reaction-to-theresa-may-brexit-vote.html https://www.cnbc.com/2019/01/16/global-media-reaction-to-theresa-may-brexit-vote.html https://www.gov.uk/government/consultations/draft-animal-welfare-sentencing-and-recognition-of-sentience-bill-2017 https://www.gov.uk/government/consultations/draft-animal-welfare-sentencing-and-recognition-of-sentience-bill-2017 the denning law journal 9 extent to which, if at all, the uk legal landscape recognises the emerging and accelerating understanding of animals as sentient beings. events in parliament currently unfolding throw into sharp relief what has always been true in a democracy, the draft of a bill may bear almost no relation to the act which is eventually presented for royal assent, so the production of such draft legislation specifically on animal sentience does not negate the need for this paper. it merely provides a further line of enquiry. all of this does mean however that this is an auspicious time to be writing about the findings of the socio-legal and doctrinal research in the dmu study. this paper sifts that research and analyses the extent to which uk law to date has kept up with animal welfare concerns to date, in an effort to weigh the current government’s assertion in the balance. can the parliament really lead the way in protecting animals as sentient beings, based on past performance? further, if there is a problem, is it limited to the legislature? narrowing the scope of the study the dmu study began from the premise that from an eco-centric or bio-centric point of view,9 society owes a moral, indeed, a practical obligation to uphold the principle of animal welfare and this is especially apparent when considering the position of domestic animals. this does not dismiss that there are those who espouse the anthropocentric, mainly biblically derived, view that animals are here to serve us, and their needs are wholly secondary to those of god and humankind.10 however, to consider that viewpoint as equal would require a discourse as to whether animal welfare needs to be considered at all and that is outside the scope of this paper. while many people have the humanity to be kind, considerate and sensible towards animals, there are others who do not, and even among animal lovers there is inconsistency as to what constitutes appropriate behaviour towards other creatures. a vegetarian, a vegan and a meat lover might each claim to be in favour of high standards of animal welfare for instance, yet vehemently disagree on the degree to which animal produce might rightly be consumed by humans. this is why animal welfare law needs to be clear, consistent and enforceable to maintain a humane yet pragmatic level of protection to animals. this legislation will always have to steer a middle course and will be unlikely to be acceptable to all. however, this paper argues that there is currently no such consistency and clarity in the law, 9 for an explanation of how these concepts impact on law making and law breaking, see tim newburn, criminology (2nd edn, routledge 2007) 903–904. 10 see, for instance, psalm 8:6-8 niv. 10 as written, or perhaps more crucially, as applied. the proposed legislation is now put under a similar scrutiny as well. a wider study could have taken into account wild animal welfare issues like hunting controversies, the farming industry, conservation, zoos, scientific experimentation and so on, but this research was limited to domesticated animals for reasons of manageable scope. these animals have a largely predetermined destiny before they are born, especially those that are in the food chain like hens, cattle and pigs. in the twenty-first-century uk the population is overwhelmingly two or more ‘generations away from the land’ and thus views nature and the animal kingdom in an increasingly abstract way having had little contact with real flora and fauna.11 this is compared to a much greater proportion of the population who in our agrarian past would have had to directly work the land. this can lead to a disconnect between the animal seen in image form or described in words and the reality of the constituent parts of that animal found in a packet of frozen sausages or in a bucket of fried chicken. the term ‘nature deficit disorder’12 has been coined to describe the negative effects of an increasingly urbanised, mechanised and cyber-based life. the animals we have the most contact with are domesticated, tame and mostly kept as pets. for stibbe, society distances itself from what is reality through its choice of language. humans are murdered; animals on the other hand are slaughtered. when, therefore, the term slaughtered is used referring to humans, it is intended to underpin the abhorrent and immoral nature of the action when applied to humans. a further example is the terms used to describe meat in terms other than those directly identifying the animal, poultry rather than chicken, beef rather than cow for example. this distances the individual from what is reality.13 ‘how animals are socially constructed influences how they are treated by human society … [c]ultural constructs determine the fate of animals’.14 these cultural constructs are in turn ‘intimately bound up with language and discourse’.15 it is true therefore to say that this places the law in a difficult position, to enact new laws or amend existing ones there needs to at least an indication that a clear majority agreement that change is 11 richard louv, last child in the woods: saving our children from nature-deficit disorder (algonquin books 2005) 34. see also stephen moss, natural childhood report (national trust 2011). 12 ibid. 13 arran stibbe, ‘language, power and the social construction of animals’ (2001) 9(2) society & animals <https://www.animalsandsociety.org/wp-content/uploads/2015/11/ stibbe.pdf > accessed 27 march 2017. 14 ibid. 15 ibid. ‘show me your horse and i will tell you who you are’: brexit, a chance to acknowledge animal sentience in law https://www.animalsandsociety.org/wp-content/uploads/2015/11/stibbe.pdf https://www.animalsandsociety.org/wp-content/uploads/2015/11/stibbe.pdf the denning law journal 11 necessary. this sometimes occurs through the development of societal values in a much wider way, such as the now more common broader acceptance of same-sex relationships. sometimes a degree of subtle ‘engineering’, backed up by incremental changes in the law is necessary, the increasing social stigma attached to speeding and drink-driving and also smoking are examples of this. such a careful yet effective media and legislative programme as that which now restricts nicotine consumption has been far more productive than an outright ban would have been. it is therefore possible to similarly raise the perception of animals as sentient among a broader cross-section of the public and thus give further momentum to the changing social construction described above. there is no longer the need for each of us to capture and slaughter our own animals as they are already there in excess on supermarket shelves. paradoxically, our consumerism has had a huge detrimental impact on animals; our demand for cosmetics, furs, and entertainment has led to their abuse and to extinctions at an alarming rate; this is aided and abetted by the increasing tendency to view meat and animal products in abstract terms as discussed earlier. there is a growing reaction to this trajectory however and animals, particularly those domesticated, such as the horse, are no longer viewed as simply property owing to these changing social constructions. it may be fanciful to say there will be a day when society will look back and be dismayed at how we treated our animals now. still further that society may be unable to fathom that animals were viewed and kept as property. having said that, slavery and child labour were once social norms and are no longer considered acceptable and so there is a precedent for such a renewal. social constructionism justifying equines as a research focus considering that dogs are a so-called ‘(wo)man’s best friend’, this might justify concentrating on domesticated canines for this study and ‘archaeological evidence indicates that the dog was the first species of animal to be domesticated towards the end of the last ice age’.16 this paper does draw analogies from time to time with other domesticated species, such as with dogs, as appropriate too but the richer vein to be mined however was the wealth of social scientific evidence illuminating the unparalleled relationship between homo sapiens and equus ferus caballus. this is characterised by its longevity, cultural and social importance and enduring nature. at the heart of humankind’s unique relationship with many animals is centuries of domestication. in relation to equines, ‘research indicates 16 james serpell, the domestic dog, its evolution, behavior and interactions with people (cup 2002) 10. 12 that horses were first domesticated by the botai culture of kazakhstan around 6000–5500 bc’.17 the earliest horse remains were discovered in suffolk and sussex dating 700,000 bc and 500,000 bc, respectively.18 during these millennia, the horse as a social construct evolved and is still an evolving phenomenon. horses are no longer a source of industrial or agricultural power although even here their influence lingers on. james watt based his now commonplace measurement of power on the workhorse of the day as one ‘horsepower’ (hp) is the power required to lift 33,000 pounds by one foot in one minute’.19 equines do however occupy a special place in our collective psyche still. for social scientists, the horse, especially the elite competition animal, can even be categorised now as an ‘athlete’. gilbert,20 among others, has explored the social processes that have reclassified horses as athletes in equestrian sport.21 in this case exploring the sport pony as an athlete, based on work by latimer and birke22 it is not just changing the uses of the horse but also specific breeding practices that generate meanings around the identity of a specific type of horse. these changing uses are key though in that humans are now presented with the horse in art, culture and sport rather more than on the roads or in the fields working the land. these changing uses are in turn shaped by ‘evolving social structures’,23 much as other developing technology of all kinds tends to lead to change in human social interaction, take the internet and the smartphone as examples which have utterly transformed the ways that humans communicate and socialise. the language of horses qua athletes is now even prevalent in sporting regulations such as those of the fédération equestre internationale (fei) and in court of arbitration for sport (cas) arbitral awards in disputes over those regulatory provisions. a large swathe of these are animal welfare stipulations rather than ‘rules of the game’ and as an example, in one such case the court stated 17 ‘domestication history of horses’ (equine world uk, n.d.) <http://www.equineworld. co.uk/about-horses/domestication-history-of-horses> accessed 20 july 2017. 18 david smith, only horses from wild (lulu press 2016) 7. 19 ben johnson, ‘the history of horses in britain’ (historic uk, n.d.) <http://www. historic-uk.com/cultureuk/the-history-of-horses-in-britain> accessed 13 july 2017. 20 michelle gilbert and james gillett, ‘equine athletes and interspecies sport’ (2012) 47(5) international review for the sociology of sport, 634–635. 21 jonathan merritt, ‘“don’t look a gift horse in the mouth” – regulating for integrity, what equestrianism can learn from thoroughbred racing’ (2017) 16(3) international sports law journal, 202. 22 joanna latimer and linda birke, ‘natural relations: horses, knowledge, technology’ (2009) 57(1) the sociological review, 1–27. 23 ibid., 8. ‘show me your horse and i will tell you who you are’: brexit, a chance to acknowledge animal sentience in law http://www.equineworld.co.uk/about-horses/domestication-history-of-horses http://www.equineworld.co.uk/about-horses/domestication-history-of-horses http://www.historic-uk.com/cultureuk/the-history-of-horses-in-britain http://www.historic-uk.com/cultureuk/the-history-of-horses-in-britain the denning law journal 13 that … ‘[a] central and distinctive feature of equestrian sport is that it involves a partnership between two types of athlete, one human and one equine’.24 animal welfare law is quintessentially about the relationship between humans and animals and the regulation of that interaction by the state. using predominantly the horse as the basis of the study makes sense because of just how nuanced the relationship between the species of human and horse actually is. the importance of the changes in the social construction of the horse cannot therefore be overstated for the propositions in this paper. the process of assimilating the horse into modern popular culture has involved a degree of anthropomorphosis and this extends down from the competition horse to the leisure animal. for example, cartoonists like norman thelwell25 have given the pony human expressions, found in many children’s books and on numerous greeting cards. likewise, animated horse characters in film and television routinely speak and express feelings. in keeping with this process, the equine characters’ faces are often drawn with distinctly human features. for instance, those horse characters found in animated films such as ‘one hundred and one dalmatians’,26 ‘sleeping beauty’27 and ‘tangled’28 are drawn with human eyes to the front of the face to enable human expressions and mannerisms to be exhibited. this process is a fundamental yet very subtle, influence on the way children socially construct the horse, this will very likely continue into adulthood as learned behaviour, further cementing the horse’s almost quasi-human place in culture. we have enormous interaction with marketing campaigns as adults as well. the budweiser clydesdales are not unknown in the united kingdom, but their media presence is undoubtedly greater in the united states where they are considered an ‘american icon’.29 the lloyds bank black horse is a familiar uk 24 cas 2012/a/2807 khaled abdullaziz al eid v fédération equestre internationale/ cas 2012/a/2808 abdullah waleed sharbatly v fédération equestre internationale [6.24]. 25 norman thelwell, b. 1923, d. 2004, illustrated and/or wrote around 40 titles, many featuring an overweight and recalcitrant pony and its frustrated or despairing young female rider, both being effectively human caricatures. 26 one hundred and one dalmatians (1961) directed by clyde geronimi, hamilton luske and wolfgang reitherman [film] usa: disney pictures corporation. 27 sleeping beauty (1959) directed by clyde geronimi, les clarke, eric larson and wolfgang reitherman [film] usa: disney pictures corporation. 28 tangled (2010) directed by nathan greno and byron howard [film] usa: disney pictures corporation. 29 see budweiser.com <http://www.budweiser.com/clydesdales/history.html> accessed 25 july 2017. some of the 250 budweiser clydesdales have pulled drays in two presidential inauguration celebrations. http://www.budweiser.com/clydesdales/history.html 14 high street sight, however. the bank’s television advertisements from as early as 1988 featured a trakehner stallion called downlands cancara filmed galloping at full speed across grassland before rearing and morphing into the familiar graphic logo.30 by 2015, the 250-year anniversary television campaign was featuring a range of black horses with actors in historical costume fighting fires, waging wars, ploughing fields, delivering milk and ultimately delivering therapy to a disabled rider. the company sought to draw parallels between the loyalty and importance of the horse to society and the same qualities displayed by the bank since its incorporation.31 budweiser wishes to associate the qualities of the clydesdale with its corporate values too. equines are in a slightly different position than other domesticated animals admittedly, not truly occupying the position of domesticated ‘pet’ and not being in the food chain by and large either. like farm animals, dependence on humans has become almost total and having been domesticated, the horse is dependent on nutrition and care provided by man. the horse requires large quantities of poorquality forage which is quite different from the lush sugary pasture that many modern horses have access to in the united kingdom, northern europe and modern north america.32 to avoid conditions like laminitis and equine metabolic syndrome, careful husbandry is required to the extent that the notion that a horse can simply be left to graze almost anywhere is quite misplaced.33 to some extent then, the relationship between humankind and horse has, from the point the horse first became a beast of burden, through to the mid-twentieth century at least, begun to approach the symbiotic. this is quite different from the hunter–prey correlation of prehistory. the horse has therefore been for some centuries reliant on man for its survival as a species and in turn has been pivotal in the development of humankind’s warfare, agriculture, industry, commerce and culture.34 this somewhat unique position in the animal kingdom presents us with our best candidate for a single species to provide a focus to consider the legal concept of animal sentience. 30 trademark uk00002563746. 31 lucy elder, ‘black horse returns to lloyds bank advertising campaign’ (horse and hound online, 29 june 2015) <http://www.horseandhound.co.uk/news/lloyds-bank-blackhorse-250-anniversary-advertising-campaign-500348> accessed 7 july 2019. 32 see, for instance, ‘starch, sugar and fructans: what are they and how important are they in diets for horses?’ in ‘the latest findings in laminitis research’ (2007), (the 1st waltham – royal veterinary college laminitis conference). 33 ibid. 34 merritt (n 23) 201–202. ‘show me your horse and i will tell you who you are’: brexit, a chance to acknowledge animal sentience in law http://www.horseandhound.co.uk/news/lloyds-bank-black-horse-250-anniversary-advertising-campaign-500348 http://www.horseandhound.co.uk/news/lloyds-bank-black-horse-250-anniversary-advertising-campaign-500348 the denning law journal 15 what do we mean by ‘animal sentience’? to consider whether animal sentience is, or could be, adequately acknowledged in uk legislation, some clarity will be needed about the term. sentience is now widely recognised35 as being applicable to animals but what is it? this acknowledgement illustrates a change in our understanding, perhaps animals possess more similarities to humans than was previously thought. research has provided strong evidence that animals have subjective experiences, and that they can feel and/or perceive. in 2012, a number of prominent scientists gathered at the university of cambridge to sign the ‘cambridge declaration on consciousness’.36 part of the declaration reads as follows: …consequently, the weight of evidence indicates that humans are not unique in possessing the neurological substrates that generate consciousness. non-human animals, including all mammals and birds, and many other creatures, including octopuses, also possess these neurological substrates.37 the signing of the declaration is a clear indication that our previous conception of an animal’s cognitive ability is changing. in terms of horses, there have been a number of studies by researchers in human psychology38 into equine cognition. for instance, such as proops and mccomb have established that ‘cross modal’ individual recognition (using two or more senses interacting with each other) is not just a human only trait as previously believed. the researchers chose horses instead of other animals because of the unique relationship they have with our species, also rather underscoring the conclusions reached in the last section of this paper. they stated that ‘… the domestic horse is an ideal animal model for this 35 marc bekoff, ‘after 2,500 studies it’s time to declare animal sentience proven’ (op-ed), (live science, 6 september 2013) <http://www.livescience.com/39481-time-todeclare-animal-sentience.html> accessed 10 april 2017. 36 philip low and others koch (eds), the cambridge declaration on consciousness (2012) <http://fcmconference.org/img/cambridgedeclarationonconsciousness.pdf > accessed 10 april 2017. 37 ibid. 38 see, for example, jessica lampe and jeffrey andre, ‘cross-modal recognition of human individuals in domestic horses (equus caballus)’ (july 2012) 15(4) anim cogn, 623–630; konstanze krueger and others, ‘horses (equus caballus) use human local enhancement cues and adjust to human attention’(march 2011) 14(2) anim cogn, 187– 201; yuki henselek, julia fischer, christian schloegl, ‘does the stimulus type influence horses’ performance in a quantity discrimination task?’ (2012) front psychol 3, 504. http://www.livescience.com/39481-time-todeclare-animal-sentience.html http://www.livescience.com/39481-time-todeclare-animal-sentience.html http://fcmconference.org/img/cambridgedeclarationonconsciousness.pdf 16 research because it has a complex social organisation and close relationship to man, making individual recognition of humans a highly functional ability’.39 certain jurisdictions are now beginning to explicitly use the term ‘sentience’ in their legislation; australasia and canada are two examples. in england and wales, there is welfare legislation in place that covers domesticated animals, but it is the current absence of explicit and clear recognition of animal sentience which brings into question whether the law effectively reflects this new hegemony and provides appropriate safeguards. this in turn does not tend to support michael gove’s exhortation to trust lawmakers to protect animal welfare adequately post-brexit. it is true that a draft bill on this very issue has been quickly published and consulted on, but it is important to be cautious about whether this will result in anything meaningful changing in relation to animal sentience as enshrined in the law. there follows an analysis of the main antecedents and drivers for the enactment of the animal welfare act 2006 (awa), and whether, 11 years on from its original enactment, it is proving to be an effective piece of legislation given the foregoing points. historical development of uk animal welfare law the current appreciation of animal sentience in this area, such as it is, has been long in the making. in 1635, ireland gave rise to the first animal welfare legislation, the act against plowing by the tayle.40 all of ireland was under british rule at the time and this is the first piece of domestic legislative protection for animals documented. the next significant change occurred in 1822, when richard martin mp successfully proposed the first more general piece of animal welfare legislation, an act to prevent the cruel and improper treatment of cattle.41 subsequently in 1824, the first animal welfare charity, the society for the prevention of cruelty 39 leanne proops and karen mccomb, ‘cross-modal individual recognition in domestic horses (equus caballus) extends to familiar humans’ (2012) proceedings of the royal society b, vol. 279 (1741), 3131. 40 jennifer maher, harriet pierpoint and piers beirne (eds), the palgrave international handbook of animal abuse studies (springer 2017) 2. thanks are also due to dr clare leon department of sociology, university college cork, eire for her paper ‘horses and the law – a comparative perspective’ at the ‘horses, society and the law: past, present and future’ conference, 11th april 2017, de montfort university, leicester, uk, which provided the stimulus for this part of the research. 41 ‘animal welfare’ (politics.co.uk, n.d.) <http://www.politics.co.uk/reference/animalwelfare> accessed 31 august 2016. ‘show me your horse and i will tell you who you are’: brexit, a chance to acknowledge animal sentience in law http://www.politics.co.uk/reference/animal-welfare http://www.politics.co.uk/reference/animal-welfare the denning law journal 17 to animals, was established, later becoming the royal society for the prevention of cruelty to animals (rspca) in 1840.42 other legislative advances emerged during the nineteenth century such as the pease’s act 1835. the act not only consolidated the legislation passed in 1822 but, inter alia, ‘the prohibition of cruelty was extended to dogs and other domestic animals, bear-baiting and cock-fighting was forbidden, and it insisted on better standards for slaughter-houses’.43 since then there have been a number of statutes such as the cruelty to animals act 1849 and 1876 and the protection of animals act 1911 (paa). the latter was ‘an act to consolidate, amend, and extend certain enactments relating to animals and to knackers; and to make further provision with respect thereto’.44 commentators consider that ‘[t]he 1911 act marks the beginning of contemporary legal attitudes to animals’45 as it combined recent developments and specifically made certain acts against animals, offences of ‘cruelty’. this is important for this paper because synonyms for ‘cruel’ include ‘inhuman’, ‘wicked’, ‘evil’ and ‘spiteful’ among many other similar terms. it goes without saying that it is not possible to be these things towards something that cannot feel or perceive. one can be cruel to a hamster but even in our enlightened age, not to bacteria or tapeworm for example. under the act it was an offence to: …cruelly beat, kick, ill-treat, over-ride, over-drive, over-load, torture, infuriate, or terrify any animal, or…cause any unnecessary suffering, or, being the owner, permit any unnecessary suffering to be so caused to any animal.46 prison and fines were included as sanctions in this legislation as well.47 the paa was an advancement in that it combined existing legislative provisions from the previous century, updated them and formed a single piece of legislation that covered domesticated and captive animals. nevertheless, for radford, the ‘… 1911 act is something of a dichotomy. on the one hand, it represents continuity … on the other, it can be seen as a break with what had gone before …’48 this is because 42 ‘our history’ (rspca, n.d.) <https://www.rspca.org.uk/utilities/aboutus/history> accessed 31 august 2016. 43 ibid. 44 protection of animals act 1911, long title. 45 simon brooman and deborah legge, law relating to animals (cavendish 1997) 50. 46 protection of animals act 1911, s 1. 47 ibid. 48 mike radford, animal welfare law in britain regulation and responsibility (oup 2001) 88. https://www.rspca.org.uk/utilities/aboutus/history 18 well-organised lobbying since 1822 had steadily increased the protection from the law afforded to animals. animal welfare law continued to be developed throughout the twentieth century, with the introduction of further legislation such as the pet animals act 1951, riding establishment acts 1964 and 1970 and the welfare of animals at slaughter act 1991. however, the most significant piece of legislation to date is the animal welfare act (awa) 2006. the animal welfare act 2006 – an overview the awa is the only statute to date where the concept of animal sentience is even mentioned. the act expressly repealed the paa and received royal assent on the 8th november 2006,49 coming fully into force by the 8th april 2007. the parameters of the legislation were ambitious, being ‘… the first review of pet law in 94 years … the [awa] combined more than 20 pieces of legislation into one’.50 this strengthened the position under the paa as it introduced new offences and placed new duties onto the owner. one significant difference is that the awa is designed to be proactive, allowing action to be taken before the animal has suffered, unlike the reactive approach of the paa. s.1(1) awa defines its scope, ‘… in this act, except subsections (4) and (5), “animal” means a vertebrate other than man’.51 importantly for this paper, the explanatory notes refer to animals as ‘sentient beings’; however, this does not legally recognise them as such, since these notes simply explain the reasoning behind the statute. nevertheless, the notes equate being a vertebrate with being ‘sentient’52 and therefore, capable of feeling or experiencing pain and/or suffering and it is possible to extend the definition to include invertebrates under s.1(3)(a) should the need arise. there are important exceptions to the awa’s application however, s.58(1) states, ‘… nothing in this act applies to anything lawfully done under the animals (scientific procedures) act 1986 (c.14)’53 unless it transpires that the licensing procedures under that act have not been complied with. furthermore, s.59 expressly excludes fishing from the awa.54 49 animal welfare act 2006, explanatory notes. 50 ‘animal welfare act ethics guide’ (bbc online, n.d.) <http://www.bbc.co.uk/ethics/ animals/overview/latest.shtml> accessed 1 august 2016. 51 animal welfare act 2006, s 1(1). 52 ibid., explanatory notes, s 1, note 11. 53 ibid., s 58(1). 54 ibid., s 59. ‘show me your horse and i will tell you who you are’: brexit, a chance to acknowledge animal sentience in law http://www.bbc.co.uk/ethics/animals/overview/latest.shtml http://www.bbc.co.uk/ethics/animals/overview/latest.shtml the denning law journal 19 the awa and horses the act places the onus of care onto the owner or keeper of a horse to ensure that the animal’s basic welfare needs are met.55 while this demonstrates the government’s recognition that there is a need for further law on this point, it is important to note that the awa does not impose a duty of care on an owner but instead simply a duty. this is key because a duty is simply a responsibility; a duty of care is a legal obligation, a point to which this paper will return. s.9 awa was incorporated to encourage the promotion of animal welfare, s.9(2) sets out an owner(s) or keeper(s) duties in relation to that animal. it is a criminal offence under s.9(1)56 if the welfare needs of an animal for which a person is responsible are not met. the provisions outlined under s.9(2) are the minimum standard an owner or keeper should aspire to. this includes the need for: (1) a suitable environment, and (2) diet, (3) to be able to exhibit normal behaviour patterns, (4) to be housed with, or apart from, other animals (as appropriate), and (5) to be protected from pain, suffering, injury and disease.57 in equine specific terms, this would normally mean one horse per stable of at least minimum measurements. it would require at least around one acre of grazing per animal in a herd environment but separated from overly aggressive horses as necessary and adequate veterinary and farrier care. these five needs, given a statutory footing by the awa have their origins in the report of the technical committee to enquire into the welfare of animals kept under intensive livestock husbandry systems 1965, otherwise known as the brambell report.58 this work identified that ‘… an animal should at least have sufficient freedom of movement to be able without difficulty, to turn around, groom itself, get up, lie down and stretch its limbs’.59 subsequently, what became the farm animal welfare council (fawc) incorporated the concepts of the brambell report, resulting in the ‘five freedoms’.60 although originally concepts 55 ‘animal welfare guidance’ (defra, 2013) <https://www.gov.uk/guidance/animalwelfare> accessed 1 august 2016. 56 animal welfare act 2006, s 9(1). 57 ibid., s 9(2)(a)–(e). 58 roger brambell, report of the technical committee to enquire into the welfare of animals kept under intensive livestock husbandry systems (her majesty’s stationary office 1965). 59 ibid., 84. 60 ‘five freedoms’ (farm animal welfare council, 1979) <http://webarchive. nationala rchives.gov.uk /201210 07104210/ http:/www.fawc.org.uk /freedoms.htm> accessed 15 august 2016. https://www.gov.uk/guidance/animalwelfare https://www.gov.uk/guidance/animalwelfare http://webarchive.nationalarchives.gov.uk/20121007104210/http:/www.fawc.org.uk/freedoms.htm http://webarchive.nationalarchives.gov.uk/20121007104210/http:/www.fawc.org.uk/freedoms.htm 20 used in relation to intensive farming, these freedoms are now applied to all animals. issues of concern regarding the animal welfare act 2006 even though animal sentience is cited in the margins of the awa, the overall position of the concept is more complicated to analyse. the position in this paper is that there have been significant failures with animal welfare legislation which concern all three branches of government, not just the way that the awa was drafted when it passed through parliament. in november 2016, it was revealed by a coalition of veterinary organisations that two-thirds of pet owners are unaware of their pets’ legal welfare needs.61 this is a cause for concern given the number of all animals currently kept as pets, which in 2016 was estimated to be 57 million.62 turning to equines, the world horse welfare and eurogroup for animals released a report in 2015 into the estimated numbers of equines within europe. the number thought to be in the united kingdom was just under 800,000.63 that said it is notoriously difficult to accurately determine the number of equines in europe as these kinds of surveys have standard deviations of up to 60%.64 this in itself is a welfare concern as a major plank of any coherent welfare regime is an accurate census. animals not accounted for are obviously at risk of falling outside the reach of the law. under the awa, a person will be found to be in breach of their duty ‘if he does not take such steps as are reasonable in all the circumstances to ensure that the needs of an animal for which he is responsible are met to the extent required by good practice’.65 the case of r (on the application of the royal society for the prevention of cruelty to animals) v c from 2006 provides guidance in respect to ‘reasonableness’. the rspca brought forward a prosecution under the old paa. 61 ‘uk pets at risk as two-thirds of owners unaware of welfare needs’ (british veterinary association (bva), 2016) <https://www.bva.co.uk/news-campaigns-andpolicy/newsroom/news-releases/uk-pets-at-risk-as-two-thirds-of-owners-unaware-oflegal-welfare-needs> accessed 4 november 2016. 62 ‘pet population 2016’ (pet food manufactures association, n.d.) <http://www.pfma. org.uk/pet-population-2016> accessed 4 november 2016. 63 ‘removing the blinkers’ (world horse welfare, n.d.) <http://www.worldhorsewelfare. org/removing-the-blinkers> accessed 13 july 2017. 64 rhys evans and celine vial (eds), the new equine economy in the 21st century (wageningen academic press 2016) 19. 65 animal welfare act 2006, s 9(1). ‘show me your horse and i will tell you who you are’: brexit, a chance to acknowledge animal sentience in law https://www.bva.co.uk/news-campaigns-and-policy/newsroom/news-releases/uk-pets-at-risk-as-two-thirds-of-owners-unaware-of-legal-welfare-needs https://www.bva.co.uk/news-campaigns-and-policy/newsroom/news-releases/uk-pets-at-risk-as-two-thirds-of-owners-unaware-of-legal-welfare-needs https://www.bva.co.uk/news-campaigns-and-policy/newsroom/news-releases/uk-pets-at-risk-as-two-thirds-of-owners-unaware-of-legal-welfare-needs http://www.pfma.org.uk/pet-population-2016 http://www.pfma.org.uk/pet-population-2016 http://www.worldhorsewelfare.org/removing-the-blinkers http://www.worldhorsewelfare.org/removing-the-blinkers the denning law journal 21 the rspca argued on appeal, ‘the test of reasonableness should be confined, so that it is applied objectively, and that any subjective element should be resisted as being outside the relevant test’.66 the judges nevertheless rejected this argument upholding the court’s original ruling that the defendant’s age and position within the home should be considered in respect to accountability. this does accord with a general move away from a ‘one-size-fits-all’ approach to a more subjective view found in other areas of criminal law.67 the jurisprudence in this particular area is not however a model of clarity: in terms of s.9(1) awa, ‘all the circumstances’ of the case may then include taking account of factors such as age, level of responsibility that can be expected, animal welfare knowledge and so on, and these factors can be and should be taken into account by the court when presiding over a case. however, in the 2013 case of r (on the application of gray and another) v aylesbury crown court it was held on appeal that under the awa 2006 ‘s.9(1) set a purely objective standard of care which a person responsible for an animal was required to provide’.68 both judgements formally conclude that s.9(1) is an objective standard that is to be met but leave a question mark over how subjectively that can be applied. this is important for this paper because a court determining the level of care required for a horse, if it is to have subjective elements, would have to take into account the vast disagreements there are about what is and is not acceptable in the keeping and training of horses. traditional cowboy methods including those used for breaking, castrating and branding69 would be viewed with horror in the english riding sector. even within that latter discipline there has been much debate about the use of such as the rollkur method of training which involves excessive forced bending of the neck to achieve a classical shape.70 further, bare foot trimming has its advocates but is treated as cruelty by the rspca if carried out to a certain degree.71 66 [2006], 1069, (admin) ewhc (qb). 67 see, for instance, r v g and another [2003] ukhl 50, [2004] ac 1034, where caldwell objective recklessness was rejected as the standard in criminal damage cases, the defendants in this case were children. 68 [2013], 500 (admin) ewhc (qb). 69 william steinkraus, the horse in sport (macdonald orbis ltd 1987) 178–201. see also current proposals to eject the western riding discipline of reining from fei governance over welfare concerns across the entire sport; pippa cuckson ‘fei set to eject the discipline of reining at the end of 2019’ (horse canada website, 2019) <https:// horse-canada.com/horse-news/fei-set-eject-reining-end-2019> accessed 15 july 2019. 70 ‘“blue tongue” rollkur dressage video row escalates’ (horse and hound online, 2009) <http://www.horseandhound.co.uk/dressage/blue-tongue-rollkur-dressage-videorow-escalates-291211> accessed 15 july 2019. 71 see, for instance, the conviction of ben street on 2nd october 2014, in stafford https://horse-canada.com/horse-news/fei-set-eject-reining-end-2019 https://horse-canada.com/horse-news/fei-set-eject-reining-end-2019 http://www.horseandhound.co.uk/dressage/blue-tongue-rollkur-dressage-videorow-escalates-291211 http://www.horseandhound.co.uk/dressage/blue-tongue-rollkur-dressage-videorow-escalates-291211 22 however, if the standard were objective then reference would need to be had to what might be described as ‘industry standards’. this is relatively straightforward with dogs and cats as there is a raft of laws and regulations to be met when running a kennels or cattery. the animal boarding establishments act 1963 regulates animal accommodation. the act provides that an establishment must have the required license attained from the local authority72 and can be subject to inspection.73 in stark contrast, there is no legislation currently in place to regulate the creation and operation of a livery yard. this is as distinct from a riding establishment where instruction on riding, often on a commercial basis, is given, these are regulated by such as the animal welfare (licensing of activities involving animals) (england) regulations 2018. the lack of regulation of liveries has been a problem area for equine welfare commentators for some time, ‘[t]here is currently no requirement for livery yards to be licensed in any way, and the standard of care at diy yards has been a growing cause for concern’.74 some years on from this statement, the following is typical of the local authority approach. ‘[l]ivery yards … do not require licensing [but] … are currently being considered for local authority licensing and should this become a requirement in the future, [council policy] will be amended accordingly’.75 having an unregulated system allows scope for abuse as in practical terms, without licensing there is no system of recording the number of livery yards, the addresses, the proprietors or their backgrounds. among other things, this presents the potential of a biohazard concern. highly contagious outbreaks such as ‘strangles’76 and the equine influenza outbreak that briefly, and yet expensively, paralysed uk horse racing in 2019,77 are harder to contain if there is no system of inspection in place that liaises magistrates court. charges were brought under s 4(1) and 9(1) awa 2006 by the rspca with the support of the farriers’ registration council. the charges related to the trimming of horses’ hooves during mr street’s normal occupation as a ‘barefoot trimmer’, an alternative to a registered farrier for trimming hooves although not for affixing shoes, etc. 72 animal boarding establishments act 1963, s 1. 73 ibid., s 2. 74 ‘defra pressed to support yard licensing’ (horse & hound online, 2006) <http:// www.horseandhound.co.uk /news/defra-pressed-to-support-yard-licensing-82430> accessed 2 july 2017. 75 ‘north hertfordshire district council animal licensing policy’ (nhdc, 2013) <https://www.north-herts.gov.uk/sites/northherts-cms/files/animal_licensing_policy.pdf> accessed 2 july 2017. 76 streptococcus equi ssp equi. 77 frank keogh, ‘equine flu: british horse racing meetings cancelled because of equine flu outbreak’ (bbc sport online, 2019) <https://www.bbc.co.uk/sport/horseracing/47152882> accessed on 19 march 2019. ‘show me your horse and i will tell you who you are’: brexit, a chance to acknowledge animal sentience in law http://www.horseandhound.co.uk/news/defra-pressed-to-support-yard-licensing-82430 http://www.horseandhound.co.uk/news/defra-pressed-to-support-yard-licensing-82430 https://www.north-herts.gov.uk/sites/northherts-cms/files/animal_licensing_policy.pdf https://www.bbc.co.uk/sport/horse-racing/47152882 https://www.bbc.co.uk/sport/horse-racing/47152882 the denning law journal 23 with local veterinary practices and identifies high-risk areas. the awa would apply to the individual owners of the horses who reside on the property and the proprietor regardless of the enforcement of a license. however, failing to have a system to license an establishment through an administrative body means that it cannot be clear whether the correct standards of the act are being complied with. in summary, if there are comparatively few controls other than town planning, applicable to opening and running a livery, no mandatory local authority inspections or licensing procedures and no oversight other than through entirely voluntary accreditation with the british horse society, then there are therefore no appreciable ‘industry standards’ to adhere to. thus, it is difficult to see how even an objective test for standard of care, such as that under the awa, never mind one that has nebulous subjective elements, is effective with respect to equines. what is a ‘duty’ in this context? whether animal sentience is or is not centrally placed in uk animal welfare legislation is only part of the story, however. as mentioned earlier in this paper, having sidestepped statutory enshrinement of the concept of animal sentience as its centrepiece, the awa relies on the concept of a ‘duty’ placed on the human concerned in relation to the order of life that is his or her responsibility. this is an interesting and telling choice of words. two to three percent of the population is vegetarian or vegan all the time78 and an undetermined number are ‘meat reductionists’ or self-styled ‘pescatarians’ who will only eat seafood in addition to vegetarian products. this produces an obvious paradox for parliament as animal welfare legislation must take account of the fact that the ultimate violence of death must be legal in a largely omnivorous society. the manner of that death is a sensitive subject, so bound up is it with cultural mores and religious belief. in point of fact the eu definition of animal sentience would not itself satisfy all sides in that debate as it implicitly makes allowance for ritual slaughter methods, mandating: …full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the eu countries relating in particular to religious rites, cultural traditions and regional heritage.79 78 ‘facts and figures’ (vegetarian society uk, n.d.) <https://www.vegsoc.org/info-hub/ facts-and-figures> accessed 20 march 2019. 79 article 13 of title ii, lisbon treaty which came into force in 2009. https://www.vegsoc.org/info-hub/facts-and-figures https://www.vegsoc.org/info-hub/facts-and-figures 24 there is after all much greater variance in views in the debate on the nature of animal rights80 than there is about the nature of human rights. this may well be why the act was drafted with the vague notion of ‘duty’, imprecise even with its guideline principles in s.9(2) in place. in contrast, in queensland, australia however, the animal care and protection act 2001 clearly identifies who the legislation pertains to and uses specific wording. it explicitly states that a person in charge of an animal owes a duty to it and that they must not breach that duty,81 implying a full ‘duty of care’ much more familiar to common lawyers. elsewhere in english law the position is binary, either a duty of care exists, or it does not. there is famously a test for it in tort in donoghue v stevenson,82 developed in caparro v dickman83and if it is not found no liability ensues, no matter how poorly the defendant has treated the claimant. there are a severely limited number of situations in criminal law where a duty of care will be held to have been in existence when an accused has failed to act, in neglect cases predominantly. examples include where there is a parent or guardian relationship such as in gibbons v proctor84 and where a certain degree of responsibility has been assumed by taking steps, however ineffectual, to care for someone as in r v stone and dobinson.85 there is no ‘good samaritan’ law in the united kingdom so if no duty exists, in law, if not in moral terms, a person can stand by and not intervene, even to prevent death, without sanction. the position in the awa is much more indeterminate and therefore ineffectual. this is likely to reduce its deterrent effect as well. there are ways in which the rules of statutory interpretation give the courts the ability to develop an unclear or inadequate statutory position. in sweet v parsley86 mens rea was inserted into a statute where none had been drafted, r v allen87 is a good example of the ‘golden rule’ remedying a defective statutory provision, and in r v bentham88 the court interpreted firearms legislation purposively to overcome an anomaly in an act. furthermore, the courts have long 80 jonathan merritt, regulating sport for the non-human athlete: horses for courses (lexington books 2019) 96; and see tom regan, ‘the case for animal rights’ in susan armstrong and richard botzler (eds), the animal ethics reader (routledge 2003). 81 animal care and protection act 2001, s 17(1–2). 82 [1932] ukhl 100. 83 [1990] ukhl 2. 84 (1918) 13 cr app rep 134. 85 [1977] 1 qb 354. 86 [1970] ac 132. 87 (1872) lr 1 ccr 367. 88 [2005] ukhl 18. ‘show me your horse and i will tell you who you are’: brexit, a chance to acknowledge animal sentience in law the denning law journal 25 been using ‘intrinsic aids’ to interpretation, which would include the explanatory note where the word ‘sentience’ is found in the act, to assist with interpreting the ethos behind the rest of the legislation. these methods could very well have been used to give effect to the concept of the animal as sentient in case outcomes since the tfeu came into force but have not as yet been employed. the problem discussed above is compounded by further ambiguities in the act. as an example, in s.4, regarding the prevention of harm, the term ‘unnecessary suffering’ is found. this must be a subjective term, as any objective measure of ‘unnecessary suffering’ is not easy to arrive at. there is some clarity on the scope of this term from the rspca annual prosecution report 2009, which records that an owner received a written caution under s.4 for failure to follow veterinary advice in respect to their obese canines. the report states that ‘[o]wners now have a legal responsibility to feed and exercise their pets properly’.89 this also makes clear that the scope of ‘unnecessary suffering’ is beyond simply intentional physical abuse, but also includes harm caused indirectly, or accidently through lack of knowledge. this document hardly has the status of a legal precedent though. in respect of horses however, there can be marked disagreement over what constitutes an underfed or overfed horse other than in very extreme cases. this is because of the nature of their diet, seasonal grazing patterns and a lack of consistency regarding acceptable condition across the 8090 or so horse sport disciplines in the world. to one person a horse may be in ‘show condition’ but to another, it is verging on the obese and risking laminitis.91 this subjectivity does not help the cause of promoting consistent standards of equine welfare. enforceability of the act the awa’s enforceability provides another difficult issue when determining whether animal sentience is adequately considered in law. currently there is no specific body or organisation that is under a statutory duty to enforce the awa. s.51 imposes a discretionary duty upon national and local authorities to appoint ‘inspectors’. ‘the rspca exercises its right to act as private prosecutor under s.6 (1) of the prosecution of offences act 1985. it is responsible for over 90% of 89 prosecutions department annual report (rspca, 2009). 90 a number which may seem surprising but see for instance william steinkraus, the horse in sport (macdonald orbis ltd 1987). 91 see also n 34, a foot condition often brought on by the horse being overweight through grazing on too much lush sugary pasture. 26 prosecution activity on animal welfare issues’.92 that leaves 10% of prosecutions being brought by local authorities, the crown prosecution service (cps), and other private individuals. prosecutions brought in respect to animal cruelty under s.4 (unnecessary suffering), s.8 (fighting etc.) and s.9 (duty of the person responsible) are triable only summarily.93 there is also the option under s.33(1) to deprive the owner of their animal,94 and finally under s.34(1) an owner can be disqualified from ownership for a specified period of time.95 given the potential severity of outcome, a criminal conviction albeit in the magistrates court, and the consequences for the animal, the rather hotchpotch arrangements for who is to prosecute, is unsatisfactory. this position is indeed criticised by the wooler report 2014, in which it is stated that: the only strategy, such as it is, seems to be an ongoing assumption by the state that it can opt out of responsibility for the implementation and enforcement of animal protection legislation…because both the obligation and the cost will be picked up by the rspca.96 this presents a further issue as not-for-profit organisations such as the rspca do not have the resources to consistently investigate, enforce, regulate and prosecute under the act. the report itself was after all in response to heavy criticism of the rspca for their private prosecution costs. this is another particular concern for those concerned with the health and welfare of horses because the rspca is barely coping with the number of complaints it has to process regarding companion animals and the space and expertise required to deal with equine cases is difficult and expensive to procure.97 it is the organs of the state that owe a responsibility to effectively enforce legislation which has been enacted. given the above points it is fair to say that the state has so far failed to uphold animal welfare principles and law as effectively as 92 ‘enforcement of the animal welfare act’ (parliamentary website, 2016) <https:// www.publications.parliament.uk /pa/cm201617/cmselect/cmenvfru/117/11709.htm> accessed 11 march 2017. 93 animal welfare act 2006, s 32(1). 94 ibid., s 33. 95 ibid., s 34(1). 96 stephen wooler, the independent review of the prosecution activity of the royal society for the prevention of cruelty to animals’ (rspca 2014) 42 <https://www.rspca. org.uk/webcontent/staticimages/downloads/woolerreviewfinalsept2014.pdf> accessed 26 may 2019. 97 merritt (n 82) 32 and n 58 therein. ‘show me your horse and i will tell you who you are’: brexit, a chance to acknowledge animal sentience in law https://www.publications.parliament.uk/pa/cm201617/cmselect/cmenvfru/117/11709.htm https://www.publications.parliament.uk/pa/cm201617/cmselect/cmenvfru/117/11709.htm https://www.rspca.org.uk/webcontent/staticimages/downloads/woolerreviewfinalsept2014.pdf https://www.rspca.org.uk/webcontent/staticimages/downloads/woolerreviewfinalsept2014.pdf the denning law journal 27 it could. this is true because firstly, as this paper has pointed out, the legislative process has failed to accommodate the changing social construction of animals, including in particular horses, as sentient in the drafting of that law. secondly, it is a contradiction to have legislation enacted by parliament when there is a real lack of consistency and clarity regarding enforcement. thirdly there are difficulties in bringing cases because of the ambiguities in the drafting of the act. it is not the first time these issues have been raised. the royal college of veterinary surgeons (rcvs) carried out a ‘post-legislative scrutiny 2010 consultation process’, within that work, significant issues were indicated surrounding the enforcement of the awa. for example: … local authority enforcement teams tend to be small and resources are increasingly stretched, meaning that carrying out in-depth investigations into breaches of the act can be difficult. furthermore, constraints on police time can result in investigations into animal welfare offences taking second place to investigations into other offences.98 nearly a decade on from this, the same issues still arise because the effects of the global financial crisis and successive uk administrations that have prioritised fiscal restraint in public finances have not helped. in fact, written evidence by mike radford, dr fiona cooke and professor sheila crispin to the environment, food and rural affairs parliamentary sub-committee, published in 2016 highlighted that, ‘a significant proportion (just under 40% in england (just under 35% in great britain)) of local authorities had failed to appoint any inspectors under the authority of s.51.99 in respect of those authorities which had made appointments, their effectiveness was also questioned in this evidence as only 17% in england (11% across the whole united kingdom) of these authorities had inspectors dealing with welfare cases on a daily basis. these figures are a clear indication that lack of a statutory duty to enforce automatically places the awa as a low priority issue for local authorities, who will be on tight budgets. in the chancellor of the exchequer’s spring 2019 statement there was some signalling of 98 response of the royal college of veterinary surgeons, (rcvs), letter dated 6th september 2010, animal welfare act 2006 post-legislative scrutiny, 2010 consultation process. 99 ‘evidence of dr fiona cooke, bsc (hons) ma law; professor shelia crispin, ma vetmb bsc phd dva dvophthal dipecvo frcvs; mike radford, obe llb’ (parliament website, 2016) <http://data.parliament.uk/writtenevidence/committeeevidence. svc/evidencedocument/environment-food-and-rural-affairs-subcommittee/animal-welfaredomestic-pets/written/30660.pdf> accessed 11 march 2017. http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/environment-food-and-rural-affairs-subcommittee/animal-welfaredomestic-pets/written/30660.pdf http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/environment-food-and-rural-affairs-subcommittee/animal-welfaredomestic-pets/written/30660.pdf http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/environment-food-and-rural-affairs-subcommittee/animal-welfaredomestic-pets/written/30660.pdf 28 a loosening of the public purse strings enabled by lower borrowing forecasts and higher than expected tax receipts in january.100 any feeling that the worst of ‘austerity’ is over however must be tempered by the likely short-term effect of brexit on the economy, something the chancellor himself acknowledged. thus, the likelihood is that the tightening of resources centrally will continue for some time to come. this has the potential to be a circular issue as low prosecution levels could lead to higher offending and reoffending. we should turn next to whether the sentencing guidelines adequately reflect the emergent societal conception of the animal as sentient. sentience and sentencing… the maximum punishment that can be imposed for a s.4 or s.8 offence under the awa is a £20,000 fine and/or six months imprisonment101 and for a s.9 offence it is a level 5 fine and/or six months imprisonment.102 the starting point for – ‘attempt to kill/torture; animal baiting/conducting or permitting cock-fighting etc.; prolonged neglect’ – is 18 weeks imprisonment with a maximum of 26 weeks103 with the usual discount for a guilty plea. an offender may also be subject to a deprivation of ownership, or disqualification of ownership order104 at the discretion of the magistrates or judge. it is not intended to enter into a discussion about whether the severity of sentences is in fact a deterrent; the relationship between harsh punishment, deterrence and recidivism generally is a hotly disputed one among penologists.105 that said, on the assumption that severity of punishment should match the severity of the crime, these are not particularly harsh punishments. it does not appear that these sanctions take into account the evolving recognition of the animal’s sentience, and rather reflects their traditional status as property instead. in fact, england and wales have some of the most lenient sentencing guidelines globally in this area. as an example, in louisiana the maximum sentence for animal cruelty offences is 100 ‘spring statement 2019: what you need to know’ (gov.uk, 13 march 2019) <https:// www.gov.uk/government/news/spring-statement-2019-what-you-need-to-know> accessed 20 march 2019. 101 ‘animal cruelty’ (sentencing council, 24 april 2017) <https://www.sentencingcouncil. org.uk/offences/magistrates-court/item/animal-cruelty-revised-2017> accessed 31 march 2019. 102 ibid. 103 ibid. 104 ibid. 105 newburn (n 11) 677–701. ‘show me your horse and i will tell you who you are’: brexit, a chance to acknowledge animal sentience in law https://www.gov.uk/government/news/spring-statement-2019-what-you-need-to-know https://www.gov.uk/government/news/spring-statement-2019-what-you-need-to-know https://www.sentencingcouncil.org.uk/offences/magistrates-court/item/animal-cruelty-revised-2017 https://www.sentencingcouncil.org.uk/offences/magistrates-court/item/animal-cruelty-revised-2017 the denning law journal 29 10 years imprisonment,106 in latvia and northern ireland it is five years, in italy it is three years’ incarceration.107 it is difficult to understand why the uk jurisdiction is at the more lenient end of the spectrum given that as a nation, we are quick to profess being animal lovers. the awa explanatory notes contain the term ‘sentient’, and although not legally binding it is a concept that the legislators have clearly recognised and this acknowledgement could have been reflected in the sentencing guidelines notwithstanding the word’s absence from any actual legislative provision. furthermore, irrespective of the repeal that is taking place and the discussion in this paper on that, eu law had and has primacy to date.108 although the act predates the lisbon treaty, the sentencing guidelines are another matter as they can be regularly updated. as such, they represent a missed opportunity to incorporate the tenets of article 13 tfeu from the point of it coming into force onwards. these sentencing guidelines represent a failure in terms of historic compliance with eu law as well in that case. additionally, given the current impossibility of predicting the post-brexit legal landscape, that failure may be a continuing one if eu law still has some role to play after the united kingdom leaves the bloc. in 1911, at the time of the paa, the concept of sentience was not yet recognised, there was no duty of care imposed upon the owners of animals, and the five needs of an animal were not paramount either. despite this, the sentencing under the paa is equivalent to, if not more severe than it is under the awa. this is so because of the possibility of ‘hard labour’.109 this type of punishment is no longer a possibility in the uk penal system,110 but the salient point is that over 100 years ago, the legislators considered it an appropriate sanction given the severity of the crime. this will have been intended to influence public attitude to animal welfare and raise its importance. it is not suggested here that hard labour should be reintroduced to the uk penal system but with the absence of this aspect of the sanction, and its intended deterrence effect, there should be something to replace it. either the term of incarceration or the possible fines should increase dramatically 106 chapter 1 s.102.1 b. (1)(4) louisiana cruelty to animals statutes. 107 ‘sentencing for animal cruelty: the arguments for an increase’ (rspca, 2017) <http://politicalanimal.org.uk/wp-content/uploads/2017/06/sentencingbriefing-1.pdf> accessed on 26 march 2019. 108 european communities act 1972, s 2(4); r (factortame ltd) v secretary of state for transport (no 2) [1991] 1 ac 603. 109 protection of animals act 1911, s 1. 110 however, many jurisdictions, including some in the united states, do still use a form of ‘chain gang’ in their penal systems. http://politicalanimal.org.uk/wp-content/uploads/2017/06/sentencingbriefing-1.pdf 30 to send an equivalent or clearer signal. without this, the level of sentencing for cruelty to animals has not significantly changed between 1911 and 2006 and in some respects, may be viewed as less appropriate. given the lack of agreement about the deterrence effect of so-called ‘tough sentencing’, an alternative would be a presumption in favour of very lengthy bans on the keeping of any animal, not just equines and a presumption for the maximum amount of community service.111 this to be served irrespective of the inconvenience or financial hardship it might impose. this lack of progression flies in the face of our increased understanding of animals as sentient creatures. this new recognition should mean the enforcement of the ‘five needs’ warrants a more severe sanction than that which existed under the paa, albeit within modern sentencing constraints and the human rights act 1998. the draft bill does include a provision to increase the sentences available to the courts under the awa: (2) in subsection (1) (penalty for offence under section 4, 5, 6(1), 6(2), 7 or 8 of the animal welfare act 2006), for the words from ‘on summary conviction’ to the end substitute “— (a) on summary conviction, to imprisonment for a term not exceeding 51 weeks, or to a fine, or to both; (b) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both. this is a welcome development of course, but it remains to be seen whether this provision survives parliamentary debate. there is also no guarantee that this bill will get parliamentary time at all, as one of the outcomes of the current impasse in the house of commons over brexit generally is a general election. even if enacted as drafted, the research this article is based on makes it clear that the problem may be as much in the application of the law as it is in how it is legislated. the awa disqualification of ownership order (doo) presents a problem as well. there is a question as to who ensures that it is not breached. anti-social behaviour orders (asbos) and their modern incarnation, the injunction to prevent nuisance and annoyance (ipna)112 incur prison sentences if they are not complied with. there is, however, a far greater chance that such breaches will be reported by human victims. the victim in the case of the doo would be the animal acquired in defiance of the prohibition, who would be quite voiceless. in addition, with an 111 this has undergone many changes in nomenclature, ‘community payback’, ‘community punishment order’ being just two. 112 anti-social behaviour, crime and policing act 2014, s 1. ‘show me your horse and i will tell you who you are’: brexit, a chance to acknowledge animal sentience in law the denning law journal 31 ipna, the police will easily have access to a record that an order is in place and can act accordingly. a person walking down the street with a dog on a lead or even more so, having an equine on pasture they have rented will not in and of itself so readily attract a report from a concerned citizen. this is unless there is personal knowledge, held by the person reporting, about any such disqualification. animals require humans to enforce the order on their behalf; they are self-evidently quite unable to do so themselves. the irony is that humans engaged in a noisy party or having an excess of trash in a garden are more likely to face enforcement action than the breach of an awa doo. despite the fact that such a breach puts a sentient being at risk of actual harm rather than just alarm, harassment or distress. as an example of this very problem, in beverley magistrates court on 5 august 2016, a defendant ‘was already serving an 18-month ban on owning and keeping horses and dogs for similar offences and causing unnecessary suffering to two horses, [but] ignored the court order and continued to neglect animals with complete disregard for the law’.113 the defendant was sentenced to 20 weeks in prison, with an ownership ban of horses for a period of 10 years, and a doo for the horses previously in her care.114 justice was perhaps done in this case, but it also serves to highlight that there is likely to be a significant ‘dark figure’ in criminal statistics regarding those who flout awa orders and are not discovered. there is a clear and present need for a mechanism to regulate those who have been convicted of animal-related offences. one argument that has been put forward is for an animal abuser registry, similar to that for registered sex offenders. this would allow for identification of abusers and prevent them from obtaining animals in defiance of a ban. it would also put animal abuse on a par with abuse against other sentient beings, i.e. humans. for sweeney, ‘at present the perverse position is we rely on the criminal convicted of cruelty to animals to refrain from further abuse of animals. that is akin to trusting a drunk driver to voluntarily refrain from alcohol’.115 sweeney himself calls for a register to monitor proven offenders. this is of obvious benefit to animal welfare but also because there is every possibility that these offenders’ 113 sarah radford, ‘dealer who flouted horse keeping ban jailed for neglect’ (horse and hound online, 2016) <http://www.horseandhound.co.uk/news/dealer-flouted-horsekeeping-ban-jailed-neglect-588059> accessed on 12 september 2016. 114 dan bean, ‘horse dealer jailed for neglect’ (york press online, 2016) <http://www. yorkpress.co.u k /news/14673521.horse_dea ler_ ja iled _ for_ neglect _ _two_ more_ sentenced> accessed 26 march 2019. 115 noel sweeney, ‘why we need an animal abuser registry?’ (shensmith barristers, n.d.) <https://www.shensmithbarristers.co.uk/direct-access-barristers/noel-sweeney> accessed 26 march 2019. http://www.horseandhound.co.uk/news/dealer-flouted-horsekeeping-ban-jailed-neglect-588059 http://www.horseandhound.co.uk/news/dealer-flouted-horsekeeping-ban-jailed-neglect-588059 http://www.yorkpress.co.uk/news/14673521.horse_dealer_jailed_for_neglect__two_more_sentenced http://www.yorkpress.co.uk/news/14673521.horse_dealer_jailed_for_neglect__two_more_sentenced http://www.yorkpress.co.uk/news/14673521.horse_dealer_jailed_for_neglect__two_more_sentenced https://www.shensmithbarristers.co.uk/direct-access-barristers/noel-sweeney 32 mindset could lead to cruelty to humans.116 this is an area which is clearly of public concern as in 2016, over 500,000 people signed a petition for the introduction of an animal abusers register after a particular case of cruelty came to light117. such a registry was a recommendation put to the government during a review of the awa, specifically it was stated that, ‘it is very difficult to track those who have been banned from keeping animals. an accessible register could play an important role in protecting animals and prevent abusers from accessing animals’.118 the current position of simply expecting offenders to refrain from reoffending or relying on chance reports from concerned and informed citizens is surely untenable. animals and their status as property this study has already mooted the problem that hitherto the underlying legal principles in animal welfare legislation owe more to their historical perception as tangible property than they do to any concept of consciousness and sentience. as property, horses and other animals in england and wales do not possess legal personality, this in turn prevents animals from being capable of holding legal rights per se. this may be unsurprising in a capitalist society as particularly in terms of horses that property value can be considerable. champion racehorses fetch eye-watering sums and can even have their own media career119 which in turn provides further income for the owner on top of potential stud fees and the like. even in less popular equestrianism, the figures can be jaw-dropping and top-level competition horses can be so valuable they are often owned by a syndicate.120 none of this helps the welfare position though the high levels of care these horses get are a reflection of their monetary value, not their position as sentient 116 see clifton flynn, ‘examining the links between animal abuse and human violence’ (2013) 55(5) crime law and social change, 453–468. 117 elsa vulliamy, ‘half a million sign petition to introduce animal cruelty register after “worst ever” attack on dog chunky the chihuahua’ (independent online, 2016) <http://www.independent.co.uk/news/uk/home-news/half-a-million-sign-petition-tointroduce-animal-cruelty-register-after-attack-on-chihuahua-a6886186.html> accessed 11 march 2017. 118 ‘animal welfare in england: domestic pets’ (the environmental, food and rural affairs committee, 2016) <https://www.publications.parliament.uk/pa/cm201617/ cmselect/cmenvfru/117/11709.htm> accessed 11 march 2017. 119 for instance, australian champion racehorse black caviar featured on the front cover of vogue australia, december 2012 issue. 120 for example, london 2012 team gb’s gold medal winning dressage mount valegro was to be sold for at least a reported £3m but for a change of heart by the syndicate. see ‘show me your horse and i will tell you who you are’: brexit, a chance to acknowledge animal sentience in law http://www.independent.co.uk/news/uk/home-news/half-a-million-sign-petition-to-introduce-animal-cruelty-register-after-attack-on-chihuahua-a6886186.html http://www.independent.co.uk/news/uk/home-news/half-a-million-sign-petition-to-introduce-animal-cruelty-register-after-attack-on-chihuahua-a6886186.html https://www.publications.parliament.uk/pa/cm201617/cmselect/cmenvfru/117/11709.htm https://www.publications.parliament.uk/pa/cm201617/cmselect/cmenvfru/117/11709.htm the denning law journal 33 beings. there is a significant problem in the united kingdom with racehorses that fall into neglect or are slaughtered121 once their winning potential, and thus their value, is gone. there are a number of pieces of legislation applied to animals as property, such as the consumer rights act 2015, theft act 1968 and theft act 1978. an animal may also be classed as property capable of being ‘damaged or destroyed’ under the terms of the criminal damage act 1971. in this respect, cps guidance states, ‘a charge of criminal damage may be appropriate in the event of the death or injury of an animal owned by someone other than the defendant’.122 indeed, brooman and legge go so far as to say, ‘…[t]he treatment of animals as property without rights is a common feature of the law relating to animals: an abuse of an animal is an abuse of the human interest in the animal concerned’.123 current legislation places animals within the same category as an inanimate object; this flies in the face of the recognition of animals as sentient beings. the seeds of this anthropocentric approach are found in the very earliest development of english and welsh law: in the beginning of the world, we are informed by holy writ, the all-bountiful creator gave to man ‘dominion over all of the earth; and over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth’. this is the only true and solid foundation of man’s dominion over external things, whatever airy metaphysical notions may have been started by fanciful writers upon this subject. the earth, therefore, and all things therein, are the general property of all mankind, exclusive of all other beings, from the immediate gift of the creator.124 it is worth quoting this passage in full as it also demonstrates a resistance to new ideas about the place of animals in the wider ecosystem, justified by a ‘carl hester hopes to keep dressage horse valegro in uk’ (bbc sport online, 2012) <https://www.bbc.co.uk/sport/equestrian/20780618> accessed 21 march 2019. 121 the british thoroughbred retraining centre (btrc) is perhaps the best known of many racehorse re-homing charities that exist because of this very problem, <www. britishtrc.co.uk> accessed 31 march 2019. 122 ‘charging standard in relation to dangerous dog offences and offences involving domestic and captive animals’ (the crown prosecution service (cps), n.d.) <http:// www.cps.gov.uk/legal/d_to_g/offences_involving_domestic_and_captive_animals> accessed 26 march 2019. 123 brooman and legge (n 47) 50. 124 ibid., 51. http://www.legislation.gov.uk/ukpga/1971/48/contents http://www.britishtrc.co.uk http://www.britishtrc.co.uk https://www.bbc.co.uk/sport/equestrian/20780618 http://www.cps.gov.uk/legal/d_to_g/offences_involving_domestic_and_captive_animals http://www.cps.gov.uk/legal/d_to_g/offences_involving_domestic_and_captive_animals 34 somewhat fundamentalist interpretation of christian teachings still not unknown today. in a survey of pastors into why animal rights do not feature in church sermons very much, the responses, ‘animals do not have souls’, ‘humans have dominion’ and ‘mercy does not apply to animals’, are perhaps most striking.125 as the vociferous debate over such as trophy hunting, fox hunting and bull fighting shows, many humans still feel a sense of entitlement over animals. furthermore, historically the common law has regarded and given the greatest protection to: … those animals designated as useful, and the least protection to those ferae naturae. useful animals [e.g., horses, cattle and sheep] are regarded as having intrinsic value, and are given the same protection as is given to goods; but, at common law, animals of a base nature are not regarded as property to the extent of being subjects of larceny, nor could a criminal action be brought for maliciously killing an animal of a base nature [e.g., dogs and cats].126 for francione, ‘animals are regarded merely as a means to human ends, which means that the law embodies the instrumentalist view of animals’.127 more recently, however, societal attitudes have developed and evolved in respect to many controversial issues, away from the biblical position, particularly in relation to capital punishment, child labour, lgbtq rights and same-sex marriages. these changes reflect the increasingly secular nature of our society and an appetite for change. on a practical level, commentators are questioning the wisdom of an entirely anthropocentric approach to environmental regulation. this is why so much concern is expressed about the backward steps regarding climate change, environmentally damaging projects like oil pipelines and the protection afforded such as wild mustangs, taken by the current us administration.128 such 125 ‘evangelical spirituality and animal ethics’ (sarx.org.uk. n.d.) <https://sarx.org.uk/ articles/christianity-and-animals/evangelical-spirituality/#_ftn1> accessed on 21 march 2019. 126 frank childs, principles of the law of personal property, chattels and choses (forgotten books 1914) 35–36; see also david favre, ‘living property: a new status for animals within the legal system’ (2010) marquette law review 1026. 127 gary francione, rain without thunder: the ideology of the animal rights movement (temple university press 1996) 25. 128 oliver milman, ‘trump’s alarming environmental rollback: what’s been scrapped so far’ (the guardian online, 2017) <https://www.theguardian.com/environment/2017/ jul/04/trump-emvironmental-rollback-epa-scrap-regulations> accessed 1 september 2017. ‘show me your horse and i will tell you who you are’: brexit, a chance to acknowledge animal sentience in law https://sarx.org.uk/articles/christianity-and-animals/evangelical-spirituality https://sarx.org.uk/articles/christianity-and-animals/evangelical-spirituality https://www.theguardian.com/environment/2017/jul/04/trump-emvironmental-rollback-epa-scrap-regulations https://www.theguardian.com/environment/2017/jul/04/trump-emvironmental-rollback-epa-scrap-regulations the denning law journal 35 activity is criticised as unsustainable and eco-centrism or even biocentrism being advocated as an alternative driver for law making.129 redgwell, however, does not quite go that far and seeks to simply water down anthropocentrism but for the same reasons, he advocates, ‘… a more diluted anthropocentrism which recognises the interrelatedness and interdependence of the natural world of which human beings form a part’.130 taylor goes further though, proposing to extend moral status from humans to nature as a whole, stating that each individual has inherent worth. for taylor, ‘from the perspective of a life-centred theory, we have prima facie moral obligations that are owed to wild plants and animals themselves as members of the earth’s biotic community. we are morally bound (other things being equal) to protect or promote their good for their sake’.131 anthropocentrism and biocentrism occupy extreme ends of the spectrum. as a result, each creates different problems if fully adopted. although society might not currently be in a position to adopt the ethics of biocentrism fully, our ability to start to recognise the need for a symbiotic relationship of mutualism to emerge, as opposed to our previous, almost parasitic, relationship demonstrates our willingness to develop. our historical approach is one of a patchwork of law relying in theme at least, on religious texts as a foundation. this means that it is necessary to consider our past failings to avoid having a similarly patchwork future in respect of animal, and for this paper, equine welfare. adopting a realist approach though, as around 97–98% of the uk population are meat eaters,132 adopting a strict biocentric stance could result in hostile opposition. for now, the acceptance of a diluted version of anthropocentrism may be the best way forward. one solution, which is realistic in this way, but takes account of the movement towards constructing animals as sentient more widely, would be to recognise a new category of property – ‘living property’. enhanced protection for animals is unlikely to occur until animals are no longer recognised simply as personal property. laws can eventually change to match evolving social constructs, the decriminalisation of homosexual acts in the united kingdom being one illustrative example. it is especially difficult at this time to tell whether the new draft bill on welfare and animal sentience will ever get to be the change that is needed. at time 129 newburn (n 11). 130 catherine redgwell, ‘life, the universe and everything: a critique of anthropocentric rights’ in allan boyle and micheal anderson (eds), human rights approaches to environmental protection (clarendon press 1996) 71. 131 paul taylor, ‘the ethics of respect for nature’ (1981) 3(3) environmental ethics 199. 132 see also (n 78) further, according to the nhs, only 2% of the uk population is vegetarian, see ‘vegetarian health’ (nhs, n.d.) <http://www.nhs.uk/livewell/ vegetarianhealth/pages/goingvegetarian.aspx> accessed on 1 september 2017. http://www.nhs.uk/livewell/vegetarianhealth/pages/goingvegetarian.aspx http://www.nhs.uk/livewell/vegetarianhealth/pages/goingvegetarian.aspx 36 of writing, the government is still in open conflict with the house of commons over the direction of brexit133 and a general election is a very real possibility in the near future. the journey towards a new legal status for animals – a comparative view attitudes towards animals, their legal and social status and sentience are changing worldwide. this has had a tangible effect on animal welfare law in other countries. the explicit recognition of animals as sentient is evident in a number of jurisdictions. in 2015 the new zealand government, ‘formally recognised animals as “sentient” beings by amending animal welfare legislation’.134 a year later, canadian legislation in the province of quebec acknowledges that ‘animals are not things. they are sentient beings and have biological needs’.135 canada having previously enacted the justice for animals in service act (quanto’s law) 2015. ‘this enactment amends the [canadian] criminal code to better protect law enforcement animals, military animals and service animals and to ensure that offenders who harm those animals … are held fully accountable’.136 this act provides a maximum prison sentence of five years with a mandatory minimum term of six months if the animal is killed. the wording of the act is wide, covering enforcement, military and service animals, many of which are police and military parade horses. this enactment came after a police dog which, during the course of his duties, was stabbed to death in 2013. the first charge under quanto’s law was brought in august 2016 after the assault of a police dog. this demonstrates that although these animals’ status is not considered akin to that of their handlers, it is acknowledging that their status should be regarded as higher than that of personal property. in the united kingdom, 133 shebab khan, ‘brexit news – live: general election looms as theresa may calls cabinet talks after mps leave her eu exit plan in chaos’ (independent online, 25 march 2019) <https://www.independent.co.uk/news/uk/politics/brexit-news-live-theresamay-vote-result-deal-latest-updates-a8839781.html> accessed 25 march 2019. 134 sophie mcintyre, ‘animals are now legally recognised as “sentient” beings in new zealand’ (independent online, 2015) <http://www.independent.co.uk/news/world/ a u st r a l a si a /a n i m a l s a r e -n ow-lega l lyr e c og n i s e d a s s e nt ie ntb e i ng s -i n -n ewzealand-10256006.html> accessed 4 october 2016. 135 ‘quebec bill calls animals ‘sentient beings’ and includes jail time for cruelty’ (cbs news online, 2015) <http://www.cbc.ca/news/canada/montreal/quebec-bill-callsanimals-sentient-beings-and-includes-jail-time-for-cruelty-1.3102399> accessed 4 october 2016. 136 justice for animals in service act (quanto’s law) 2015. ‘show me your horse and i will tell you who you are’: brexit, a chance to acknowledge animal sentience in law http://laws-lois.justice.gc.ca/eng/acts/c-46 https://www.independent.co.uk/news/uk/politics/brexit-news-live-theresa-may-vote-result-deal-latest-updates-a8839781.html https://www.independent.co.uk/news/uk/politics/brexit-news-live-theresa-may-vote-result-deal-latest-updates-a8839781.html http://www.independent.co.uk/news/world/australasia/animals-are-now-legally-recognised-as-sentient-beings-in-new-zealand-10256006.html http://www.independent.co.uk/news/world/australasia/animals-are-now-legally-recognised-as-sentient-beings-in-new-zealand-10256006.html http://www.independent.co.uk/news/world/australasia/animals-are-now-legally-recognised-as-sentient-beings-in-new-zealand-10256006.html http://www.cbc.ca/news/canada/montreal/quebec-bill-calls-animals-sentient-beings-and-includes-jail-time-for-cruelty-1.3102399 http://www.cbc.ca/news/canada/montreal/quebec-bill-calls-animals-sentient-beings-and-includes-jail-time-for-cruelty-1.3102399 the denning law journal 37 members of parliament debated the initiation of similar legislation in the house of commons on the 14th november 2016. this was prompted by an e-petition which was signed by 126,877137 people. the petition text read, ‘i propose that uk police dogs and horses be given protection that reflects their status if assaulted in the line of duty…’138 the government response to the debate is interesting, part of it reads: … it is unpalatable to think of police animals as ‘equipment’ as is inferred by the charges of criminal damage. this does not seem to convey the respect and gratitude police and public feel for the animals involved and their contribution to law enforcement and public safety. the government has therefore agreed to explore whether there is more that the law should do to offer the most appropriate protections to police animals and all working animals.139 it is possible therefore that something resembling quanto’s law might be enacted for england and wales. the same route that sarah’s law took, regarding a paedophile register, having been initiated by public concern similar to that which lead to meghan’s law in the united states on the same issue.140 there are encouraging signs in the written ministerial statement that prefaces the draft animal welfare (sentencing and recognition of sentience) bill 2017. michael gove commits that ‘[m]y proposed increased maximum penalties will also apply to convictions relating to attacks on service animals, including guide dogs, police and military dogs’.141 137 ‘police dogs and horses’ hansard, volume 617 (hansard, 2016) <https://hansard. p a rl i a m e nt .u k /c om m o n s / 2 016 -11-14 /d e b a t e s / d856 f ca e -9e f 4 49 c f -9 9a0 af5f379bef94/policedogsandhorses> accessed 15 november 2016. 138 ibid. 139 ‘petition to give same status to police dogs and horses as police officers’ (petition. parliament.uk, 10 april 2017) <https://petition.parliament.uk/petitions/168678?reveal_ response=yes> accessed on 15 november 2016. 140 ‘sarah’s law’ protects more than 200 children in first year’ (gov.uk, 4 april 2017) <https://www.gov.uk/government/news/sarahs-law-protects-more-than-200-children-infirst-year> accessed 31 march 2019. 141 ‘written ministerial statement, the draft animal welfare (sentencing and recognition of sentience) bill 2017’ (gov.uk, 2017) <https://assets.publishing.service.gov.uk/ government/uploads/system/uploads/attachment_data/file/666576/draft-animal-welfarebill-171212.pdf> accessed 25 march 2019. https://hansard.parliament.uk/commons/2016-11-14/debates/d856fcae-9ef4-49cf-99a0-af5f379bef94/policedogsandhorses https://hansard.parliament.uk/commons/2016-11-14/debates/d856fcae-9ef4-49cf-99a0-af5f379bef94/policedogsandhorses https://hansard.parliament.uk/commons/2016-11-14/debates/d856fcae-9ef4-49cf-99a0-af5f379bef94/policedogsandhorses https://petition.parliament.uk/petitions/168678?reveal_response=yes https://petition.parliament.uk/petitions/168678?reveal_response=yes https://www.gov.uk/government/news/sarahs-law-protects-more-than-200-children-infirst-year https://www.gov.uk/government/news/sarahs-law-protects-more-than-200-children-infirst-year https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/666576/draft-animal-welfarebill-171212.pdf https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/666576/draft-animal-welfarebill-171212.pdf https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/666576/draft-animal-welfarebill-171212.pdf 38 conclusion with a definite focus on the equine population of this country, this paper was written as a direct response to the environment secretary michael gove’s plea for us to ‘trust’ the uk parliament to legislate effectively to protect animal welfare, specifically with better recognition of the emerging concept of animal sentience. in november 2017, the definition of animal sentience in article 13 tfeu was deliberately left out of the legislation designed to repeal the eca 1973 and the brexit process has rumbled on during the intervening 18 months or so before this paper was written. trust in british politicians seems to be currently below even its usual low level as even the prime minister has castigated parliament for ‘indulging’ itself over brexit for far too long, criticising ordinary mps generally rather than the usual target, the opposition.142 nevertheless, the most methodologically sound approach to address gove’s words is to look at how the united kingdom has protected animal welfare historically, irrespective of eu law, as a guide for the future. there followed a historical and comparative analysis and a consideration of the extent to which the most current animal welfare legislation takes account of the changing social construction of animals as sentient beings, using equines as a specific and detailed example. the inclusion of sentience as an accepted concept in the explanatory notes to the awa is a welcome step. that appears to be the extent to which the new social construction is acknowledged in legislation and by the courts enforcing the act. there is the new draft animal welfare (sentencing and recognition of sentience) bill 2017 which could place the concept of sentience firmly in the statute books, but its fate is far from certain at a time of political turmoil over brexit more generally that is absolutely unprecedented in this country. further, this study has concluded below, what the law is enacted to say is only part of the problem. the sentencing guidelines in animal cruelty cases post-date the lisbon treaty and there is ample scope therefore for these to give effect to article 13. however, on the face of it they are unduly lenient if one is dealing with a sentient being as a victim. they do not even seem to accord with the severity found under the old paa 1911, much less chime with the approach of other jurisdictions. there is little cohesion or symmetry in the arrangements for prosecutions to be brought either, given that there is no statutory body to enforce the act. further, there are a number of serious ambiguities in the legislation as drafted that hinder the protection of animal welfare. chief among those is the absence of a clear duty of care and a test 142 ‘brexit: “tired” public needs a decision, says theresa may’ (bbc news online, 2019) <https://www.bbc.co.uk/news/uk-politics-47647515> accessed 21 march 2019. ‘show me your horse and i will tell you who you are’: brexit, a chance to acknowledge animal sentience in law https://www.bbc.co.uk/news/uk-politics-47647515 the denning law journal 39 for it together with a lack of certainty around how repeat offenders would be managed. instead the legislation owes more to a social construction of animals as property, placing usefulness at a premium at that. equines are at particular risk because of the paucity of regulation surrounding commercial boarding at livery when compared to the stringent controls on catteries and kennels. furthermore, the chances of a member of the public noticing a welfare transgression or a defiance of a doo in a rural area are much lower than in a densely populated urban area where companion animals are more likely to be found. finally, the lack of public funding which still continues as we emerge from ‘austerity’ is likely to be compounded by brexit itself so the voluntary sector will continue to bear the brunt of the cost. this is considerable when taking into consideration investigations, rescue, rehabilitation and prosecutions. unfortunately, while not doubting the commitment and effort in the third sector, the actors there, such as the rspca, are woefully under-resourced as well. to summarise the conclusions of this study then; there is now wide recognition of animal sentience both in the populations of england and wales and abroad. there is not only scientific evidence on this but also acknowledgement by united kingdom and other legislators of the importance of this term. in the awa, this acknowledgement stopped short of being enshrined in statute. the law so far has therefore not gone far enough to reflect the enormous changes in the social construct of the animal since the nineteenth century. commentators agree that language is vitally important for shaping public attitudes and a key chance was missed to have such an influence for the better in 2006. the draft bill is a welcome step but is at too early a stage, and the political landscape too uncertain, to herald this as some sort of new dawn yet. there are failings in all three branches of government regarding animal welfare and the awa; these may yet hinder the effectiveness of the new law if passed as well. in addition to the inadequate drafting of the act there is a failure in enforcement, with only 17% of authorities having inspectors to deal with animal welfare cases on a daily basis.143 courts have also failed to find an adequate interpretation of the duties imposed in the act on those people performing animal husbandry. there are various methods of statutory interpretation which have been used to address poor legislative drafting in other criminal provisions, but no such effort has been made to acknowledge the animal as a sentient being by doing so in relation to the awa. 143 cooke and others (n 101). ‘animal welfare in england: domestic pets’ (gov.uk, 2016) <https://www.publications. parliament.uk/pa/cm201617/cmselect/cmenvfru/117/11709.htm> accessed 11 march 2017. https://www.publications.parliament.uk/pa/cm201617/cmselect/cmenvfru/117/11709.htm https://www.publications.parliament.uk/pa/cm201617/cmselect/cmenvfru/117/11709.htm 40 for most, individuals choose to take on a position of responsibility when caring for an animal; it is a position of trust and an obligation. for others, ‘… a good law, in the end, becomes an educational device, which, if it works properly, eventually vitiates the need for its own existence by creating a new culture in the regulated population’.144 the problem is the awa is not good law, it fails to recognise the animal as a sentient being, other than paying ‘lip service’ to the idea it fails to create or encourage a new type of property, ‘living property’, which would place animals in a new category, enhance their welfare protection and help to educate those in society that are not yet alive to the new social construction of animals. in short, based on the findings of this study and paper, mr gove may find the trust he seeks in short supply. as this paper has demonstrated, the problem does not lie just with parliamentary drafting. as yet there is still time for a start to be made with new legislation post-brexit. that, as things stand, may be a long way off though. there is a wider moral issue, however, consider the refugee crises, the widening of the gap between the rich and the poor and the ever-depleting resources given out for human health and welfare by government. western society needs to look hard at how it protects the ‘vulnerable and voiceless’ of all species. after all, ghandi was clear that the greatness of a nation and its moral progress could be judged by the way its animals are treated.145 144 bernard rollin and michael rollin, ‘dogmaticisms and catechisms: ethics and companion animals’ in susan armstrong and richard botzler (eds), the animal ethics reader (2nd edn, routledge 2008) 550. 145 widely attributed to mahatma gandhi. ‘show me your horse and i will tell you who you are’: brexit, a chance to acknowledge animal sentience in law human rights, 'arranged' marriages and nullity law: when do 'force', parental 106 denning law journal 2015 vol 27 pp 106-129 lord denning, magna carta and magnanimity simon lee  lord denning‘s assessment of magna carta at its 750th anniversary has stood the test of half a century: ―the greatest constitutional document of all times—the foundation of the freedom of the individual against the arbitrary authority of the despot‖. 1 his longer, but still succinct, article for the times for the same anniversary has not been bettered. 2 yet at the time of magna carta‘s 800 th anniversary we have lost sight of two other works of lord denning which could make a distinctive contribution to our current constitutional debates. whereas lord neuberger has linked the real magna carta to the fictitious holy grail in an entertaining lecture 3 on law and myth, for legal scholars the holy grail is a long lost text or case. an earlier essay 4 identified the links between the opening clause of magna carta 1215 and s 13 of the human rights act 1998 as worthy of rediscovery. this article presents two further candidates: a neglected lecture on borrowing from scotland 5 by lord denning in 1961 and a neglected court of appeal decision in 1975 applying magna carta, in which lord denning presided as master of the rolls, r v secretary of state for the home office, ex p phansopkar. 6 between them, they can  fellow of st edmund‘s college, cambridge, emeritus professor of jurisprudence, queen‘s university belfast, and visiting professor of law, university of buckingham. with thanks to james lee, james slater, the editor and anonymous reviewers. 1 lord denning, quoted by successors as master of the rolls, lord bingham and lord dyson, the latter in robin griffith-jones & mark hill (eds) magna carta, religion and the rule of law (cambridge university press 2015). 2 lord denning, reprinted in the family story (hamlyn, london 1982) 229. 3 lord neuberger, magna carta and the holy grail, lincoln‘s inn, 12 may 2015, https://www.supremecourt.uk/docs/speech-150512.pdf 4 lee, ‗the cardinal rule of religion and the rule of law‘ in robin griffithjones and mark hill qc (eds), magna carta, religion and the rule of law (cambridge university press 2015) 314-333. 5 lord denning, borrowing from scotland, 26 th david murray foundation lecture, university of glasgow, 5 may 1961, printed by jackson, son & co, printers to the university, 1963. 6 r v home secretary, ex p phansopkar (1976) 1 qb 606. the denning law journal 107 offer refreshing insights into contemporary constitutional controversies. the main focus here, after drawing attention to the lecture on borrowing from scotland, is the phansopkar case‘s use of magna carta. it is instructive to see how magna carta has been used in practice, between its 750 th and 800 th anniversaries and well ahead of the human rights act 1998. it is also salutary to consider some of those involved in the case, their earlier lives and what happened next. finally, and briefly, i attempt to link these two seemingly disparate parts of lord denning‘s legacy. there is no mention of magna carta in the lecture and no mention of scotland in the magna carta case (or in magna carta itself because it was, of course, a foreign country at the time) but forging connections between them is a way of drawing lessons for our wider constitutional controversies. in 2015, the 800 th anniversary of magna carta coincides with a new conservative government in westminster pledging to ―control immigration‖ and proposing three significant constitutional changes which were in its manifesto: english votes for english laws, in the aftermath of the 2014 referendum rejecting independence for scotland; a second referendum on membership of the european union, the first having been in 1975; and a british bill of rights to replace the human rights act 1998. 7 the last of these is already proving problematic and has been delayed, with no commitment on timing in the queen‘s speech. 8 one common theme is the desirability, or undesirability, of external influences on the legal system of england and wales, whether from scotland or brussels or luxembourg or strasbourg. through various misunderstandings, the different concerns have been conflated into a distrust of ―european‖ judges or other law-makers from outside this legal system. supporters of the european convention and its incorporation have not helped. the 1997-2001 labour government promoted the human rights act under the slogan bringing rights home and then rights 7 https://www.conservatives.com/manifesto. 8 contrast the detail in the queen‘s speech of the first two with the third: my government will bring forward changes to the standing orders of the house of commons. these changes will create fairer procedures to ensure that decisions affecting england, or england and wales, can be taken only with the consent of the majority of members of parliament representing constituencies in those parts of our united kingdom. my government will renegotiate the united kingdom‘s relationship with the european union and pursue reform of the european union for the benefit of all member states. alongside this, early legislation will be introduced to provide for an in-out referendum on membership of the european union before the end of 2017 [eu referendum bill]… my government will bring forward proposals for a british bill of rights. lord denning, magna carta & magnanimity 108 brought home) as if it were a good thing for rights to be ―at home‖, as if rights were not at home from 1215 and as if rights were now not to be resolved on the continent. now the conservative government is trying both to ―scrap‖ the human rights act and to rely on much the same argument (note the title of a think tank report, rights brought back home 9 ) that we should bring rights home into a british bill of rights. yet the erstwhile supporters of that very process have become so attached to the human rights act 1998 that they are now vehemently against whatever it is that the government thinks it will achieve for (or against) human rights. whether or not the past can be deemed a foreign country 10 for these purposes, it is similarly instructive to question whether there is and should be a place in the contemporary constitution for magna carta, not just as a part of what walter bagehot called the ―dignified‖ constitution but also as a working part of the ―efficient‖ constitution. bagehot did not dwell on magna carta in his own book on the english constitution. 11 neither did rfv heuston mention magna carta in his essays on constitutional law. 12 leo amery‘s thoughts on the constitution 13 did not involve many thoughts on magna carta, merely passing mentions. will magna carta be forgotten once the 800 th anniversary celebrations are over, only to languish until its 900 th and 1000 th anniversaries? or can its renewed application, whether in its own right or as part of a new british bill of rights, be a fitting legacy from the mass of lectures, exhibitions and other events this year? compared to bagehot‘s dignified language about the dignified constitution, lord sumption, an historian turned lawyer and now a supreme court justice, has been blunt about over-exuberant celebrations of magna carta by lawyers in the run-up to the 800 th anniversary. 14 he dismisses pious praise of magna carta as ―high-minded tosh‖ and is scathing about relying for the rule of law on rich barons: ―do we need to 9 see also the foreword by lord hoffmann to a report for the independent think tank policy exchange http://conservativehome.blogs.com/files/px-bringingrights-back-home.pdf 10 lp hartley, the go-between (penguin 1953): the opening sentence reads: ‗the past is a foreign country; they do things differently there.‘ 11 walter bagehot, the english constitution (oxford 2001). 12 rfv heuston, essays in constitutional law (london stevens and sons ltd 1961). 13 leo amery, thoughts on the constitution (oup 1947). 14 lord sumption, ‗magna carta then and now‘, address to the friends of the british library, 9 march 2015, https://www.supremecourt.uk/docs/speech150309.pdf the denning law journal 109 derive our belief in democracy and the rule of law from a group of muscular conservative millionaires from the north of england, who thought in french, knew no latin or english, and died more than three quarters of a millennium ago? i rather hope not.‖ this could be described as a bit rich from someone whose own robust approach could itself count as ―muscular‖ 15 and ―conservative‖ 16 and whose success at the bar has been widely reported to have made him a millionaire, 17 albeit not one from the north. lord sumption could not possibly have been criticising lord neuberger‘s lecture 18 on magna carta and the holy grail because that came later and indeed praises lord sumption‘s analysis. the president of the supreme court, lord neuberger, tells us he was ―somewhat taken aback‖ to be told, by his judicial assistant, 19 that the rapper jay z has an album with magna carta in its title (magna carta holy grail). he confessed to not understanding why the album title referred to magna carta: ―listening to the music, digesting the lyrics, and reading its wikipedia entry leave me little wiser as to why the album has the title that it does, but i suppose that when it comes to subtle allusions, rap-singers may have it over judges.‖ quite so. this could be a metaphor for our times, that whilst judges know who the beatles were, 20 they think they 15 on his muscular approach as a qc, see various accounts of his actions when representing the foreign office, writing to lord neuberger to press for a paragraph in a judgment to be redacted, eg http://www.theguardian.com/world/2010/feb/10/binyam-mohamed-tortureannotated-letter. 16 on his conservative approach to judging, see sir stephen sedley‘s scathing critique of lord sumption‘s critique of sir stephen sedley and other more radical, activist judges, ‗judicial politics‘, london review of books 23 february 2012, http://www.lrb.co.uk/v34/n04/stephen-sedley/judicial-politics. 17 the daily telegraph estimated his earnings at the bar as £2m pa http://www.telegraph.co.uk/news/uknews/law-and-order/7207378/profile-of-qcat-centre-of-binyam-case.html, the daily mail at £3m pa http://www.dailymail.co.uk/news/article-1263225/binyam-mohamed-legaltorture-case-cost-taxpayers-750-000.html and the sunday times at £8m for one case. www.thesundaytimes.co.uk/sto/news/uk_news/society/article1121765.ece. 18 lord neuberger (n 3). 19 hugh comber (n 3). 20 the legal journalist marcel berlins doubts that any judge really asked this, or did not know, even if the same newspaper attributes it in its obituary columns to judge james pickles, without citing a particular occasion. see http://www.theguardian.com/commentisfree/2007/may/21/uk.law http://www.theguardian.com/law/2010/dec/22/judge-james-pickles-dies http://www.theguardian.com/world/2010/feb/10/binyam-mohamed-torture-annotated-letter http://www.theguardian.com/world/2010/feb/10/binyam-mohamed-torture-annotated-letter http://www.lrb.co.uk/v34/n04/stephen-sedley/judicial-politics http://www.telegraph.co.uk/news/uknews/law-and-order/7207378/profile-of-qc-at-centre-of-binyam-case.html http://www.telegraph.co.uk/news/uknews/law-and-order/7207378/profile-of-qc-at-centre-of-binyam-case.html http://www.dailymail.co.uk/news/article-1263225/binyam-mohamed-legal-torture-case-cost-taxpayers-750-000.html http://www.dailymail.co.uk/news/article-1263225/binyam-mohamed-legal-torture-case-cost-taxpayers-750-000.html lord denning, magna carta & magnanimity 110 can also understand modern music (or law) by listening and staring at accompanying texts without appreciating context, subtext and underlying culture. lord neuberger gives no hint of having grasped that jay z‘s real surname is carter and that the music millionaire formerly known as shawn carter was having fun in praise of himself (great carter, get it?). 21 more seriously, there is something lacking in lord neuberger‘s approach in his lecture to assessing the importance of magna carta in modern courts. despite having been one of lord denning‘s successors as master of the rolls, lord neuberger ignored the court of appeal in considering the impact of the 1215 charter by just searching the on-line database bailii for house of lords or supreme court decisions which mentioned magna carta in the last 120 years, finding only ten. 22 he thus missed the case which i have in mind as a way of commemorating magna carta and which merits consideration of how it might be applied in years to come, r v secretary of state for the home office, ex p phansopkar from 1975. so far bailii is comprehensive below our highest court only from 1996, only featuring earlier court of appeal judgments if attention is drawn to a landmark decision. phansopkar deserves that accolade. the supreme court justices lecturing on magna carta 23 have not mentioned this phansopkar case. more generally, they and others have been lecturing on the wider constitution 24 and even the union 25 without addressing the lecture by lord denning. the danger of anyone offering an alternative view on magna carta is, as lord sumption claimed, that ―it is impossible to say anything new about magna carta unless it is mad.‖ 26 even then, he suspects someone else will have said it. i have already offered a different perspective on magna carta. although dismissed as peripheral, s 13 of the human rights act 1998 is an extended version of magna carta‘s first clause on freedom of religion. 27 section 13 is now being mentioned as significant in the government‘s deliberations on its manifesto commitment to replace the human rights act with a british 21 lee (n 4) 320. 22 neuberger (n 3). 23 neuberger (n 3) and sumption (n 14). 24 neuberger, hale https://www.supremecourt.uk/docs/speech-150205.pdf reed http://www.innertemple.org.uk/downloads/members/lectures_2013/lecture_reed_ 2013.pdf 25 most egregiously, lord sumption, even when giving a lecture to the denning society on this disunited kingdom: england, ireland and scotland, 5 november 2013, https://www.supremecourt.uk/docs/speech-131105.pdf 26 sumption (n 14). 27 lee (n 4). https://www.supremecourt.uk/docs/speech-150205.pdf http://www.innertemple.org.uk/downloads/members/lectures_2013/lecture_reed_2013.pdf http://www.innertemple.org.uk/downloads/members/lectures_2013/lecture_reed_2013.pdf the denning law journal 111 bill of rights. it only takes the same will to rehabilitate both the idea of borrowing from scotland and the court of appeal‘s example of using magna carta. they come over here … (part one) fear, dislike and distrust of the other is not confined to contemporary debates on immigration or unions. a disrespectful phrase has become a sinister by-word for prejudice: ―they come over here, taking our …‖ (jobs, houses, and so on). so of whom was it said, and when was it said, that, ―they have pounced upon us, like swarms of locusts, into every quarter and every scene of life … and when there is anything to be got, you may be sure to find a number…conven‘d, like hounds over a carrion: or flies in the shambles‖? 28 lord denning had a more flowing way of talking about the influence of european law as an incoming tide 29 but those who think of him as a ―little englander‖ who might have made this remark in the last century are wide of the mark. the people being attacked by the english press in this instance were the scots in 1746. in particular, the rumour was that a scot called william murray was going to be made a judge in england. lord denning, in an outstanding but neglected lecture, does us a service by reporting this xenophobia and the lawyer‘s response to his critics, which was to point out anonymously that if they did not like the scots, then the easy remedy would be to repeal the act of union of 1707. this lawyer from scotland did indeed become a judge and then, ten years later, william murray became the lord chief justice of england, taking the title lord mansfield. for 32 years, he held that high office with the utmost distinction. he is especially praised on either side of the atlantic for the release of a slave in the somersett 30 case and for recognising the right to free speech in the john wilkes case. 31 despite not mentioning magna carta in either, lord mansfield has come to represent the spirit of magna carta as the archetypal english judge, fiercely independent, championing the cause of freedom under the law. yet he was born at scone and in many ways, even though he left scotland at the age of 14, he applied scottish thinking and law in his english setting. this is explained in the substance of lord denning‘s lecture. he records lord mansfield‘s admiration of scottish writers on law in stair, mackenzie and craig. then 28 denning (n 5) 7. 29 bulmer v bollinger [1974] ch 401. 30 somersett‘s case (1771) 20 state trials 1-82, quoted at 16. 31 r v wilkes (1768) 98 er 327, 347. lord denning, magna carta & magnanimity 112 he pays tribute to lord mansfield‘s following of scottish law in commercial matters, focusing on principles. 32 next he singles out for praise lord mansfield‘s development of the action for unjust enrichment, aligning law and equity, following roman law and scots law. 33 finally, lord denning praises lord mansfield for doing ―his best to bring the english law into line with scots law‖ 34 in contract, whether or not there was consideration. it will not have escaped those familiar with lord denning‘s jurisprudence that lord mansfield is being lauded in all these respects for having anticipated how lord denning would have liked the law to have developed. where lord mansfield was thwarted, as with contract, lord denning would ―very much like to see the english take a leaf out of scotland‘s book‖. 35 and where lord mansfield was criticized, as by lord redesdale who thought ―lord mansfield had in his mind prejudices derived from his familiarity with the scots law‖, 36 lord denning believes that ―time has shown that these criticisms were not merited‖. 37 admittedly, there is a difference between judicial decision-making (including some development of the law) and elected law-making. nevertheless, at least a judicious judicial scottish vote for english laws can be wholly admirable. lord denning might not be the most obvious candidate as a cheerleader for scottish judges in the english legal system. if we continue to ignore the lecture, of course, that assumption will prevail. but why did lord denning choose this topic at that time? presumably, he was asked to give a prestigious lecture and chose a theme which would have appealed to his audience in scotland. it also played to his own interest in great judges and history. above all, however, lord denning saw himself as an outsider to the english legal establishment, a grammar school 38 boy with a distinctive hampshire burr of an accent, and was well disposed to others of similar talent who brought something different to our courts. lord mansfield came from a much more privileged background but he 32 denning (n 5) 10. 33 eg moses v macfarlen (1760) 2 burrow at 1012, cited by lord denning (n 5) 12. 34 denning (n 5) 13. 35 ibid 15. 36 ibid 12. 37 ibid 3. 38 see lee, ‗lord denning, margaret thatcher, law and society‘ (2013) 25 the denning law journal 159, 160: ‗both rose to high office from humble beginnings above family shops‘. the denning law journal 113 succeeded as an outsider to the extent that he was from scotland and had endured that unwelcoming press on rumours of his judicial appointment. the next great ―english‖ legal figure admired by lord denning in this lecture was thomas erskine, another scot, who was born in edinburgh in 1750. he is renowned for his emphasis on the independence of the bar and for his defence of freedom of speech. 39 a powerful advocate, he became lord chancellor. then came john campbell, born in 1781 in fifeshire, who became attorney-general, lord chief justice and lord chancellor. on his appointment as lord chancellor, he recommended colin blackburn to replace him on the queen‘s bench. blackburn was born in 1813 in dunbartonshire lord denning notes that the times was unimpressed: ―who is mr colin blackburn?‖ the only explanation entertained by the times for this ―freak‖ appointment was that he was another ―scotchman‖. 40 according to lord denning, however, ―colin blackburn was the greatest lawyer of the nineteenth century‖. 41 many a student even in the twenty-first century knows, or at least knows of, his judgment in rylands v fletcher. 42 lord denning continues in this vein when it comes to the twentieth century, full of praise for the influence on english law of one scottish judge after another. scottish lord chancellors of the twentieth century ran from lord loreburn through viscount kilmuir at the time of lord denning‘s lecture (and on to lord mackay and lord irvine later in the century). two of the judges in donoghue v stevenson were scottish, lords thankerton and macmillan, 43 both agreeing with lord atkin to form the majority for his famous judgment on the law of negligence. if lord denning himself has a rival for the title of our greatest judge in that century, it might be scotland‘s lord reid. 44 in sum, lord denning‘s sparkling lecture shows that we have had at least three hundred years of scottish judges developing and illuminating english law. it is therefore perplexing that there is such outrage at scottish 39 see lord neuberger, lord erskine and trial by jury, 2012, https://www.supremecourt.uk/docs/speech-121018.pdf 40 denning (n 5) 32. 41 denning (n 5) 32. 42 rylands v fletcher (1865) lr 1, ex 265, lr3 hl 330. 43 denning (n 5) 35, commenting on donoghue v stevenson 1932 ac 562. see alan rodger, ‗lord macmillan‘s speech in donoghue v stevenson‘ (1992) 108 lqr 236. 44 alan paterson, the law lords (macmillan 1982). see also louis blomcooper, ‗the european convention in an international legal setting‘ [1997] ehrlr 508. lord denning, magna carta & magnanimity 114 law-makers in parliament continuing to exercise the practice of three centuries in voting on the outcome of laws confined to england or to england and wales. unless, that is, there is something wholly different about judicial and elected law-making. but if there is and it remains acceptable for scots to make judicial decisions in english law, then it is not so obvious why it would be so wrong for non-english judges elsewhere in europe to offer their insights into human rights in the legal system of england and wales. whatever the explanations might be, the fact remains that scottish judges have long since made invaluable contributions to the law south of the border. the quintessential english judge, lord denning, spotted this and used his famous story-telling powers to give a lecture that is in a class of its own. the lecture is not beyond criticism. its last two sentences 45 jump to a conclusion that is not justified by the argument. in expressing the hope that the two legal systems might eventually become one, lord denning undid some of his good work in recounting the history of scots lawyers rising to high judicial office south of the border. on the contrary, an attraction of the lecture and of the union is the value of diversity, of constitutional laboratories within one state. 46 overall, however, this is a first class lecture which still has the power to surprise lawyers who do not know the biographies of famous judges of earlier centuries. omitting the second part of the penultimate sentence and the whole of the final sentence, it would have reached this resounding conclusion, saying of lord kilmuir (who was then the lord chancellor and had previously been central to the drafting of the european convention) 47 that, ―he is the latest of the many men of high principle and great endeavour who have come from scotland to england and have enriched the law of these islands. this process is much to be encouraged – england borrowing men and principles from scotland for the benefit of both‖. 48 who knows whether this lecture in may 1961 had any effect on lord kilmuir‘s recommendation less than a year later that lord denning should become the master of the rolls? more importantly, does the thrust of this lecture have an application in our own time? to this we shall return after the main 45 denning (n 5) 39-40. 46 smith commission https://www.smith-commission.scot/. 47 neil duxbury, lord kilmuir: a vignette (hart 2015). 48 denning (n 5) 39. lord denning was speaking at a time when it was not customary to say men and women and when there had not been a woman appellate judge in either legal system. we still await the first woman supreme court justice from scotland. the denning law journal 115 body of this article looks at the ramifications of a rare court of appeal decision citing magna carta. they come over here … (part two) in r v home secretary, ex p phansopkar, 49 a strong court of appeal ordered the home secretary to consider immigration claims in accordance with magna carta. the three judges in the court of appeal were three of the most wellknown members of the judiciary. despite the ―kilmuir rules‖, named after the afore-mentioned scottish lord chancellor who feared that too frequent appearances in the media by judges posed difficulties for their independence, lord denning, sir frederick lawton and sir leslie scarman revelled in their extra-judicial engagements in the public square. six months before this case, in december 1974, sir leslie scarman had given his famous hamlyn lectures on english law – the new dimension. 50 in february 1975, one of sir frederick lawton‘s former pupils became leader of the conservative party. margaret thatcher went on to praise her pupil-master for his robust approach to the law, especially sentencing. 51 in fact, lord justice lawton‘s views on sentencing were nuanced. he did believe in long sentences for crimes of violence. but he is also credited for popularising the phrase ―short, sharp shock‖ for lesser offences. the phrase comes from gilbert & sullivan, the mikado, but it was given a boost by sir frederick lawton who liked to say that he had spent longer in prison than most hardened criminals, having grown up in prison as his father was a prison governor. 52 the court was not stacked for or against the government of the day. lord justice lawton had been a candidate for a controversial right-wing party in his youth, having earlier flirted with the extreme left, but lord justice scarman was widely regarded as one of the most liberal of our judges. although the left used lord justice lawton‘s past right-wing politics to suggest that the judiciary might be biased against those less privileged in society, 53 in this case all 49 phansopkar (n 6). 50 sir leslie scarman, english law – the new dimension (hamlyn lectures, 26th series 1975). 51 margaret thatcher commenting on sir frederick lawton http://www.margaretthatcher.org/document/107570. 52 lawton – see obituaries http://www.telegraph.co.uk/news/obituaries/1321260/sir-frederick-lawton.html. http://www.theguardian.com/news/2001/feb/05/guardianobituaries1. 53 paul foot https://www.marxists.org/archive/foot-paul/1978/04/judges.htm. lord denning, magna carta & magnanimity 116 three judges ruled in favour of vulnerable individuals seeking a ruling from the home secretary. two appeals were heard together by the court of appeal on 30 june and 1 july against the home secretary, ex parte phansopkar and ex parte begum, usually reported as r v home secretary, ex p phansopkar. lord widgery, sitting with ashworth and may jj, dismissed the case at first instance on 24 april but phansopkar won on appeal. lord widgery, sitting this time with bridge & stocker jj had then decided on may 22 that begum was indistinguishable from phansopkar. although the appellate judges were not convinced there was a way of distinguishing the two cases, both were held by the court of appeal to be wrong on their merits. in the conjoined appeals, lord denning sitting as the master of the rolls, lord justice lawton and lord justice scarman all relied on magna carta. the timing of this case is also of interest in the light of the new westminster government‘s promise of a second referendum on membership of the european union before the end of 2017. the phansopkar case came as that first referendum on staying in the european community was being held in the summer of 1975. the labour government was at the same time steering a bill through parliament to strengthen protection against sex discrimination. it was soon to do the same against race discrimination, extending the power or its pioneering 1965 and 1968 acts.. its home secretary was roy jenkins. his special adviser was anthony lester qc. the home office‘s barrister in the court of appeal was harry woolf. it would be difficult to find three more celebrated characters in our modern history of protecting and promoting human rights. yet the home office at the time of what could be described as its greatest glory in terms of progressive legislation was arguing that it was entitled to send mrs phansopkar and mrs begum back to india and bangladesh respectively and it was the judges who ordered the labour government to resolve the matter here in the uk. this case is too often ignored or overlooked or under-played. it is not mentioned in any of the supreme court justices‘ magna carta lectures. in his leading judgment in m, 54 lord woolf only refers to phansopkar for a passing point (on which he gives the impression that it was a ruling requiring an immigration officer to consider the matter whereas the order of mandamus required the home secretary to make a decision). ten days before the 800 th anniversary however, it does receive a passing mention from mrs justice patterson in her ruling that the government had delayed 54 m v home office, [1994] 1 ac 377. http://www.bailii.org/uk/cases/ukhl/1993/5.html. the denning law journal 117 unduly in providing disability benefit for c and w 55 . she notes that the case was cited but seems to take it as settled law, conceded by the defendants, that unreasonable delay is unlawful and so does not need to consider the detail of the case law. this is a pity because she later goes on to reject the human rights act arguments that human rights have been breached. lord justice lawton in phansopkar, however, was clear that fundamental human rights were at stake with corresponding duties and that those duties not to delay the vindication of rights were imposed on the executive by magna carta. 56 where the case is mentioned in the academic literature, it is usually for lord scarman‘s reference to the european convention, bolstered by the magna carta argument, even though lord denning mr and lawton lj did not rely on the european convention whereas all three did invoke magna carta. adam tomkins thinks the magna carta references are merely obiter dicta. 57 a more expansive or inclusive understanding of the ratio is, i would submit, more in keeping with the tenor of the judgments. magna carta was an ―aid to determining the issues in the case‖. after all, five different judges at first instance (lord widgery cj sitting in both cases) had ruled against mrs phansopkar and mrs begum by looking at the statute and rules without contemplating magna carta. lord widgery cj, with whom the other judges agreed, did consider that the act and rules should be read subject to a common law duty but in his judgment that duty was to be fair between families queuing. it is because the three judges in the court of appeal recalled a prior duty under magna carta not to delay justice that they saw the matter differently. when in doubt about how general the level should be at which to cast the ratio of a case, we should let the judgments speak for themselves. 55 c w, disability case http://www.bailii.org/ew/cases/ewhc/admin/2015/1607.html. 56 phansopkar (n 6) 23. 57 a tomkins, ‗magna carta, crown and colonies‘ [2001] pl 571: magna carta was cited by all three judges of the court of appeal not as an aid to determining the issues in the case, but as obiter. lord denning mr explained that the immigration act 1971, section 3(9) provided that wives of patrials could enter the united kingdom by right, rather than by leave, and as such enjoyed an entitlement, and not a mere privilege. ―such being her right,‖ lord denning continued, ―i do not think it can be taken away by arbitrarily refusing her a certificate, or by delaying to issue it to her without good cause‖. his lordship then added that in such an event, the woman concerned could ―invoke‖ magna carta. lawton lj agreed, stating that the secretary of state ―cannot refuse to consider the application, nor can he delay consideration unreasonably. these duties were imposed on the crown and its servants by magna carta‖. lord denning, magna carta & magnanimity 118 it is especially important to reconsider phansopkar fully in magna carta‘s 800 th anniversary year in case the conservative government really does do anything approaching its manifesto pledge to ―scrap‖ the human rights act. the facts of phansopkar show that the strength of both magna carta and an ―external‖ perspective on human rights can act as an effective check on a well-intentioned government. the prime minister gives the impression of being furious with european court of human rights judges for deciding in favour of prisoners and those suspected of terrorism, against the wishes of what he regards as well-intentioned governments of different political complexions focusing on the common good in an era of dangerous threats to security. 58 why has the case been neglected? 59 it might be that those pressing for incorporation of the european convention on human rights were embarrassed by the facts of the case. or it could be that obscurity was caused by the headnote writers who did not include magna carta in their rendering of the holding. 60 or it might have slipped under the radar because it was difficult for judges sitting alongside lord denning to get much attention for what they said. lawton lj and scarman lj used the term ―magna carta‖ but lord denning, master of the rolls, who had something of a grudge against latin or at least against those who thought he had not mastered it or its pronunciation, called it the great charter. 61 or it might be that immigration laws, rules and practices changed so frequently that the significance of the broader issues was lost. or it could have been merely that there were so many cases to choose from in the mid-1970s that custom settled on such later gems from 1975 and 1976 as congreve 62 or laker 63 or tameside, 64 based on popular media coverage. 58 for david cameron‘s views, see eg http://www.bbc.co.uk/news/uk-politics28339263. 59 for articles which do refer to the case, see eg tomkins n 58, anthony lester and jeffrey jowell, ‗beyond wednesbury: substantive principles of administrative law‘ [1987] pl 368, michael beloff and helen mountfield, ‗unconventional behaviour? judicial uses of the european convention in england and wales‘ [1996] ehrlr 467, blom-cooper (n 44), lord irvine, ‗the spirit of magna carta continues to resonate in modern law‘ (2003) 119 lqr 227. 60 phansopkar (n 6) 607. 61 ibid. although at 617 ‗civis angliae sum.‘ 62 congreve v home office [1976] 1 qb 629 follows phansopkar in the official law reports of 1976 but happened in november and december of 1975, after phansopkar in june and july 1975, in the court of appeal. the denning law journal 119 avoiding an increase in tv licence fees, liberalising trans-atlantic travel and facilitating or inhibiting (depending on one‘s view) school selection played better than vindicating rights of immigrants. another way of putting that, however, is that immigration, mental health and other spheres where magna carta has been applied are cinderella subjects. this is where fundamental 65 constitutional provisions are especially valuable and where innovative argument might be needed. no cases were cited in argument or judgment in phansopkar at first instance. counsel understood the issues of rights under threat and of the rule of law. these cinderella subjects are going to the ball much more in the supreme court era than in the time of the judicial committee of the house of lords, partly because of the human rights act 1998 and the surrounding culture. for whatever reason, when ronald dworkin had the whole of english or uk law from which to choose a case, he opted for a decision later in the same year by one of the same judges at first instance, lord widgery, in the crossman diaries case. 66 he seemed to think that was decided in the house of lords. imagine if he had instead chosen r v home secretary, ex p phansopkar, where there was a striking difference between the approach of lord widgery and the court of appeal. apart from anything else, other scholars might also have paid more attention to this case if it had become subject to dworkin‘s sweeping jurisprudential analysis. the substance of the disagreement between the court of appeal and the government on what is fair and reasonable could be put in terms of that ultimate british value of refraining from queue-jumping. in a learned article on queue-jumping, 67 the property lawyer and property law theorist, professor kevin gray, does not address phansopkar. those, like myself, who prefer the judgments of the court of appeal to the convenience of the home office might prefer a different term, and underlying british value, to queue-jumping, such as ―taking the initiative‖ or ―taking the matter into one‘s own hands‖ when faced with excessive bureaucratic delays. sibghatullah kadri appeared for mrs phansopkar, harry woolf for the respondents at first instance, sibghatullah kadri and anthony eton for mrs phansopkar, eugene cotran for mrs begum on appeal, harry woolf 63 laker v department of trade [1977] qb 643. 64 secretary of state for education v tameside [1977] ac 1077. 65 see eg laws lj thorburn v sunderland city council [2003] qb 151. 66 ronald dworkin, eg law’s empire (harvard university press 1988), criticised by s lee, ‗law‘s british empire?‘ (1988) 8(2) ojls 278. 67 kevin gray http://www.lse.ac.uk/collections/law/projects/techniquesofownership/techgray.pdf. lord denning, magna carta & magnanimity 120 for the respondents. no cases were cited at first instance and only two in the court of appeal, r v northumberland compensation tribunal 68 (where denning lj sat as only the second senior judge) and r v home secretary, ex p mughal, 69 where s kadri appeared before denning mr and scarman lj, that time sitting with megaw lj, and where gordon slynn was for the government. in that case, lord denning drew a sharp distinction between the circumstances of mr mughal and of a ―patrial‖. lord widgery cj, with whom ashworth & may jj agreed, explained that, “the home office came into this matter at quite an early stage because reference was made to them by a member of parliament who was interesting himself in the situation of mr phansopkar and his alleged wife‖ and rejected the applications because ―it must be remembered that being fair is not simply being fair to one family. it is a question of being fair to all those who suffer from this problem, and the home secretary is entitled in my judgment to take the view that in order to be fair to all he should not allow one family, or one individual, to obtain priority in the queue by such means as are put forward in this case.‖ 70 as always, lord denning mr set out the facts and legal background in a compelling fashion: the husband, allimiya bawa phansopkar, was born in india … he has produced a marriage certificate issued in india which shows that in 1962, when he was 27, he married his wife, maimuna, who was then 20. the marriage was solemnised at the bride‘s house by her father, in accordance with the moslem religion. their first child, a girl, was born in january 1964. two years later, in 1966, the husband came to england and found work here; but he went back to india from time to time to join his wife, and they had there three more children, all boys, born in may 1968, september 1971 and february 1974. then in march 1974 the husband took a most important step. he became a citizen of this country; or, more accurately, a citizen of the united kingdom and colonies…he himself thenceforward had ―the right of abode in the united kingdom‖. his right was equal to the right of abode of any of us. you and i and our families have been born here and lived here from time immemorial. yet mr phansopkar, from the moment he was registered, had just as much right here as we have. he became a citizen of no mean country. he could say proudly -if he spoke 68 [1952] 1 kb 338. 69 [1974] qb 313. 70 phansopkar (n 6) 610. the denning law journal 121 latin -civis angliae sum. he became a patrial. and not only he. his wife also obtained at that very moment the selfsame right… she was a commonwealth citizen. and, as such, as soon as her husband, by registration, gained the right of abode in the united kingdom, she acquired the selfsame right of abode … ―free to live in, and to come and go into and from, the united kingdom without let or hindrance.‖ 71 yet when the phansopkars tired of waiting in india, where the queue was long, and took action by flying to heathrow, mrs phansopkar and the children were refused entry. the immigration officer required them to go back to india to secure a certificate of patriality. this made sense to the three judges at first instance but not to the three judges in the court of appeal. lord denning continued from his account of her right: 72 such being her right, i do not think it can be taken away by arbitrarily refusing her a certificate, or by delaying to issue it to her without good cause. she can invoke the great charter: ―to none will we sell: to no one will we delay or deny right or justice.‖ it seems to me to be implicit in this legislation that a wife, who is truly a wife, is entitled to apply for a certificate of patriality and to have her application examined fairly and in a reasonable time. the home office gave no reason except that ―it is considered that [the] application can be most satisfactorily dealt with by the entry certificate officer at the british high commission in‖ bombay or dacca respectively. lord denning asked, ―was that a sufficient reason?‖ and answered no because 73 a wife who applies in bombay or dacca for a certificate of patriality has to join a long queue of those who require leave to enter. by the time she is granted an interview, 14 months or more will have passed. the delay was so long that these two ladies, at any rate, determined to test the matter by coming here and applying here. in the circumstances i think they were justified in so doing.‖ 71 ibid 616-7. 72 ibid 621. 73 ibid 621-2. lord denning, magna carta & magnanimity 122 lord denning therefore ordered that, 74 the home secretary ought not to send these ladies back to india and bangladesh to face the long delays. he ought to examine the applications to see whether or not each lady is a patrial, and to give or refuse a certificate according to whether she satisfies him, or not. lawton lj began by declaring in forthright terms the point that a right was at stake and that the home secretary was under a duty dating back to magna carta: 75 these appeals concern rights, not privilege. the rights are fundamental human rights -of husbands and wives to live together.‖ the home secretary ―cannot refuse to consider the application; nor can he delay consideration unreasonably. these duties were imposed on the crown and its servants by magna carta ... administrative convenience, however well intentioned it may have been, cannot be made a justification for depriving people of their rights or for delaying consideration of their claims to rights… i would allow the appeal and order that the secretary of state for home affairs shall consider and determine the applications for certificates of patriality made by both these appellants. scarman lj also took the matter seriously as a breach of rights which could be traced back to a ―hallowed principle of our law‖ 76 in magna carta, now reinforced by the european convention: 77 the background to these two appeals is disturbing. we have been told by counsel for the secretary of state that in 1974, 12,864 entry certificates were granted by overseas offices in the indian sub-continent and 859 certificates of patriality. it is significant that during the year not one application for a certificate of patriality was refused, though the applicants had to endure the wait in the queue for 14 months or more… delay of this order appears to me to infringe at least two human rights recognised, and therefore 74 ibid 623. 75 ibid 623. 76 ibid 626. 77 ibid 625. the denning law journal 123 protected, by english law. justice delayed is justice denied: ―we will not deny or defer to any man either justice or right‖: magna carta. this hallowed principle of our law is now reinforced by the european convention for the protection of human rights 1950 to which it is now the duty of our public authorities in administering the law, including the immigration act 1971, and of our courts in interpreting and applying the law, including the act, to have regard: see r v secretary of state for home affairs, ex parte bhajan singh in this court… it may, of course, happen under our law that the basic rights to justice undeferred and to respect for family and private life have to yield to express requirements of a statute. but in my judgment it is the duty of the courts, so long as they do not defy or disregard clear unequivocal provision, to construe statutes in a manner which promotes, not endangers, those rights. problems of ambiguity or omission, if they arise under the language of an act, should be resolved so as to give effect to, or at the very least so as not to derogate from, the rights recognised by magna carta and the european convention. leave to appeal to the house of lords was granted but no appeal was pursued. the ratio of the case could be put at various levels of generality. all three judges, however, framed the case in terms of magna carta, both because of its longevity and because of its fundamental nature. all three interpreted the common law as reading into the immigration act and rules that the home secretary‘s actions are subject to magna carta, now for lord justice scarman reinforced by the european convention. scarman lj accepts that express provision in a statute could restrict the reach of magna carta and the convention. it might have been thought implausible, however, that a political party would want to push through parliament legislation which spelled out that its ministers were to have an exemption from magna carta. it is now just about possible that the current government has in mind the equivalent of ―notwithstanding any provision to the contrary in the human rights act‖ but restricting the ambit of a statute of 17 years is not comparable to acting contrary to magna carta‘s 800 years of imposing duties on those in government. but he is clear that without an express counter, the statute must be construed so as to conform to duties under magna carta. the facts of phansopkar are most relevant to that contentious issue in contemporary politics of immigration, even though the significance of the case goes way beyond this context in speaking to us today. commentators who might describe themselves as liberalor left-leaning criticise conservative ministers and media for seeking to demonise immigrants lord denning, magna carta & magnanimity 124 and to deter or at least delay their entry into the uk. in its broadest application, the case has been cited in the very month of magna carta‘s 800 th anniversary by mrs justice patterson in a ruling on unreasonable delays in disability benefits. phansopkar itself, however, was a decision in favour of women from india and bangladesh against a labour government which prided itself on its attitudes to equality on grounds of race and gender. indeed, it is worth recalling that three legendary figures in our human rights history were, in a sense, on the losing side of this case. roy jenkins was the home secretary held to be in breach of magna carta, anthony lester qc was his special adviser (although i do not mean to suggest that he would have advised on individual cases) and harry woolf was the counsel for the home office, trying to defend the labour government‘s attempt to send mrs phansopkar and mrs begum back to queues in india and bangladesh respectively, rather than resolve their claims where they were. i say ―in a sense‖ because no doubt the special adviser was busy drafting the famous laws against race and sex discrimination and was unaware of the phansopkar case. likewise, harry woolf was briefed to argue for the home office, not to offer his own opinion on the merits of this particular immigration claim. it may even be that roy jenkins was too busy on policy questions to focus on the legal or political ramifications of his great department of state seeking to deport mrs phansopkar. in any event, the home office was roundly defeated on appeal. lord justice scarman had some sympathy for the home secretary: ―one final word. this is not a case of an unthinking, heartless exercise of administrative power. the secretary of state is clearly, and rightly, troubled by that queue.‖ 78 this aspect of phansopkar is worth belabouring (be-labouring) because it shows that with the best of intentions, a government which prides itself on human rights can be held to have erred. the current debate is as if the conservative government‘s self-proclaimed good intentions of, for example, protecting national security are enough to render otiose recourse elsewhere. but phansopkar shows that this is not so. turning this the other way round, when a government is defeated on such grounds, perhaps opponents should not crow so much as if the government was therefore acting in bad faith. perhaps this is the root of conservative dissatisfaction with being upbraided by european or domestic judges. so what became of some of the principal characters involved in this litigation? the home secretary soon became president of the european commission and later lord jenkins of hillhead. anthony lester became 78 ibid 628-9. the denning law journal 125 lord lester, much involved in the movement to incorporate the european convention into british law. harry woolf became lord woolf, master of the rolls and then lord chief justice. it is clear from the official law reports that counsel for mrs phansopkar raised the issue of the european convention and a claim of habeas corpus but the reports are silent on whether counsel themselves invoked magna carta. counsel for the home secretary responded to the convention point in raised by counsel for mrs begum so presumably would have replied on magna carta if that had been raised explicitly. whether counsel invoked magna carta or whether the formidable bench saw the point was implicit in initial arguments, sibghat (or sibgatullah or sib) kadri and eugene cotran deserve credit for winning their cases and for the way in which they were won, with a so far unfulfilled potential to safeguard fundamental rights. just as the stream of judges from scotland have brought refreshingly different perspectives to english law, counsel for mrs phansopkar had the distinctive experience of having himself been detained without trial, contrary to magna carta, in another part of the commonwealth. both counsel for mrs phansopkar and for mrs begum knew what it was to come to the uk from a troubled part of the world. even if they did not invoke magna carta explicitly, they might well have led the judges to think of it for themselves. sibghat kadri 79 was born in india in 1937, migrating to pakistan soon after partition in 1947. he was active in student politics at karachi university where he was arrested and imprisoned without trial for opposing the military regime in 1958. he drafted his own petition for habeas corpus and secured his own release but was deported to hyderabad in 1959. he came to england in 1960. he remained active in pakistan politics in england and worked for the bbc as a producer and broadcaster in urdu and in english. he was called to the bar in 1969. after pupillage, he formed his own set of chambers and then, with rudy narayan the afro-asian and caribbean law association which became the society of black lawyers. he became queen‘s counsel in 1989 and a bencher of the inner temple in 1997. over decades he has consistently challenged discriminatory practices and comments in the legal profession, saying that, ―even lord denning, as brilliant as he was then, was not colour blind‖, and later successfully calling for lord denning‘s resignation over the publication of his book criticising jurors in the bristol riot case. 79 http://www.onlinebld.com/lawyer_of_the_month/sibghatkadriqc.html. lord denning, magna carta & magnanimity 126 eugene cotran, 80 the lawyer for the other appellant, mrs begum, had been born in jerusalem. he was a refugee who went to school in alexandria and then studied law at the universities of leeds and cambridge. he was stateless before becoming a british citizen. after working in academe and legal practice in london, he became a high court judge in kenya before returning to the uk to practise as a barrister and to resume academic work at soas. he became the first arab and palestinian circuit judge. he was a greek orthodox christian who had a lifelong interest in the law surrounding the palestinian cause, including a prominent role in drafting its basic law. he died in the summer of 2014. the law report‘s summary of his argument before the court of appeal suggests that he had convinced lord justice lawton who began his judgment in strikingly similar terms, that the cases concerned a right, not a privilege. one of the phansopkar children, nawaz, his wife and their children fled their flat above a grocer‘s shop when it was being destroyed by fire during the croydon riots of 2011. 81 indeed, it was press coverage of this tragedy, linking the name of phansopkar and the location of croydon (where mr & mrs phansopkar went through an english marriage ceremony, for the avoidance of doubt, before the hearing), which led to me recalling this case. 82 what say the reeds at runnymede? is there any link between the lecture on borrowing from scotland and this case applying magna carta? my contention is that there is a common element. it is a culture of magnanimity, of big-heartedness and openness towards different ways of looking at the law and society, sometimes from the past, sometimes from current circumstances, sometimes from afar, sometimes from nearby. 80 http://archive.thisweekinpalestine.com/details.php?id=2327&ed=148&edid=14 8 (accessed 9 june 2015) https://archive.is/mkum1 (accessed 10 june 2015). 81 croydon http://www.telegraph.co.uk/news/uknews/crime/8699765/countingthe-cost-of-the-riots-the-street-where-looters-caused-14m-damage-in-12hours.html. 82 the connection can be traced by looking at a mapping exercise of india, which lists names associated with a property as in a private census: the eldest generation have the names of the litigants in phansopkar, nawaz is the second child, one of the daughters-in-law matches (with a slight variation in spelling in english) the name of his wife hayatbi, and four of the grandchildren have the names of those burned out of the flat in croydon http://wikimapia.org/1500679/al-bawa-house the denning law journal 127 louis blom-cooper 83 speculated on what might have been if the scottish law lord, lord reid, whom he described as ―the greatest judge of our times‖ had lived a little longer and if phansopkar and two other cases from the court of appeal had gone on appeal to the judicial committee of the house of lords: ―one can surmise that, had lord reid been given the opportunity to consider the jurisprudence developing in the court of appeal in and around 1975/1976, he would have affirmed the trilogy of 1975 cases 84 and applied international legal norms … (lord reid retired on january 10, 1975 and died on march 29, 1975.)‖ one of our current supreme court justices from scotland, lord reed, has given a most insightful lecture 85 on domestic legal systems and the european convention on human rights, pointing out that france and germany do not have the same exaggerated deference to strasbourg decisions as has been implied in the british constitutional debate. he has argued for the resilience and ingenuity of the common law in finding imaginative ways to develop itself rather than simply deferring to strasbourg, pointing out that this is necessary if we are to continue to offer a good example to the rest of the world in respecting the rule of law. this could be said to be a fall-back position in case the human rights act is scrapped and nothing much replaces it on the statute book. more positively, it can be taken at face value as endorsing the approach adopted in phansopkar (although again this case is not cited). many of the lawyers who have argued or decided human rights cases have come from different legal and political systems, such as sydney kentridge qc, lord hoffmann and lord steyn from south africa. 86 the hong kong final court has even built this into its practice by including a wide range of judges from outside its own legal system. the experiences and courage of sibghat kadri and eugene cotran deserve a place in this company. in the case of mr kadri, for example, he showed ingenuity before he even studied law in securing his own release under martial law through habeas corpus. in phansopkar, he called the home office to account, thanks to the master of the rolls and colleagues applying magna carta, and then later he called the master of the rolls himself to account. 83 blom-cooper (n 44). 84 phansopkar, birdi v home secretary [1975] sj 322, r v home secretary, ex p bhajan singh [1976] qb 198. 85 lord reed http://www.innertemple.org.uk/downloads/members/lectures_2013/lecture_reed_ 2013.pdf. 86 see eg sydney kentridge, free country (hart 2012) or ‗desert island discs‘ http://www.bbc.co.uk/programmes/b01rl0z9. lord denning, magna carta & magnanimity 128 as for eugene cotran, he saw himself as a palestinian refugee and went on to be a judge in two legal systems in two continents, in kenya and in england. his father michel cotran, incidentally, had the same distinction, having been chief registrar of the judiciary in jerusalem under the british mandate, then becoming a refugee in egypt before becoming a judge in nigeria and then chief justice of west cameroon. 87 this is not to say there is no merit in english votes for english laws in the different law-making realm of elected politicians deciding on statutes. but neither is it especially conservative to ignore a long history of insights from across the border. borrowing from scotland points us in the direction of magnanimity and wisdom in continuing to draw on scottish judges, even if a more federal uk is the answer to the west lothian question or even if scotland were to become independent. the uk supreme court does not have jurisdiction in scottish criminal law, unless there are human rights arguments, in which case the scottish judges will be in a minority. lord denning ended his article in the times on magna carta‘s 750 th anniversary with a quotation from rudyard kipling‘s poem, what say the reeds at runnymede? 88 although prone to go beyond the bare facts to give some colour to a case, none of the judges in phansopkar mentioned how close the scene of the immigration officers‘ refusals was to runnymede, where magna carta was sealed in 1215. heathrow is only a few miles away. lord reed is yet to turn his attention to magna carta but for these purposes the reeds (to include the reids) are those judges with experience of another legal system in these islands 89 and of legal systems on the continent or those lawyers with a similar spirit of openness to diverse influences. borrowing from scotland and following phansopkar are two paths 90 towards the same holy grail of a legal system open to different ways of challenging conventional wisdom at the behest of 87 https://archive.is/mkum1. 88 rudyard kipling, the reeds of runnymede (magna charta, june 15, 1215). 89 for a different example, see j lee and s lee, ‗humility in the supreme court‘ (2015) 26 king‘s law journal 165, pointing out that lord kerr, the lone dissenter in r (on application by lord carlile qc and others) v home secretary [2014] uksc, has distinctive and invaluable experience of balancing rights in a legal system in conflict from his time as a barrister, judge and ultimately lord chief justice of northern ireland. 90 lord denning concludes his book the discipline of law (butterworths 1979) thus: ‗my plea is simply to keep the path to justice clear of obstructions which would impede it.‘ 314. the denning law journal 129 fearless advocates and pioneering litigants. if we are to be no mean country, we should not imagine that the past of magna carta is a foreign country, especially at a time when the government is contemplating fundamental constitutional reform. the spirit of runnymede, ―the lissom reeds that give and take, that bend so far, but never break‖, 91 can still speak to the rule of law. 92 as kipling‘s poem concludes: and still when mob or monarch lays too rude a hand on english ways, the whisper wakes, the shudder plays, across the reeds at runnymede. and thames, that knows the moods of kings, and crowds and priests and suchlike things, rolls deep and dreadful as he brings their warning down from runnymede 93 91 kipling (n 88), first stanza. 92 bingham, the rule of law (penguin 2011), especially 10-13. 93 i am grateful to an anonymous reviewer for suggesting the last stanza as arguably a better explanation of the spirit of magna carta because it can explain the trial of charles i, on the one hand, and the proper use of the public order act 1936 and 1986, on the other. this has the merit also of reminding us that kipling is a more subtle and less bourgeois or jingoist poet than, eg, george orwell credits. early jewish law and university education roger p. booth * wyclif argued in the 14th century that if law was to be taught in the english universities, it should be english and not roman.l his wish is not far from fulfilment. roman law is a declining academic stock; today some universities teach it not at all. but perhaps the pendulum has swung too far. we would agree with wyclif that english law should be the basic education at english law schools, but the burden of this essay is that university undergraduates, embarking upon law studies, should be offered a medium of comparison with english law for the encouragement of their critical faculties, and of their appreciation of an alternative legal treatment of social and commercial issues. roman law is an excellent medium in this regard, for in the thousand years between the twelve tables and justinian's corpus the student can plot the course and causes of development of a legal system from primitive state to high sophistication. it may be objected that the training of the critical and historical faculties in relation to law is not the purpose of a university law school. the prime purpose of the university, this argument runs, is to provide academically trained entrants to the professional law schools, and university teaching should be oriented towards that destination. the teaching of the 'core' legal subjects by the universities, so as to provide exemption from the academic part of the professional examinations for would-be practitioners, causes little diversion from this purpose, since those subjects would probably be in the curriculum on most criteria. but the curricular trend in the recent past in non-core subjects has been towards providing further vocationally slanted courses at the expense of the more academic courses, and historical ones in particular. thus conveyancing, social welfare, taxation and bankruptcy are well established in the undergraduate curriculum. it is understandable that in a society plagued by unemployment, students should have a greater desire to acquire practical knowledge which will enhance their usefulness to an employer, but the claims of practical subjects for a place in the curriculum raise the hoary conflict between utility and the cultivation of the intellect as the main purpose of university education. locke's contempt for the study of the classics would no doubt extend to roman and other ancient laws which have little • sometime senior lecturer in law, university of buckingham. 1. de officio regis (ed. pollard and sayle) (1887), p. 193. 29 the denning law journal practical application for the englishman to-day: "can there be anything more ridiculous", he writes, "than that a father should waste his own money, and his son's time, in setting him to learn the roman language, when at the same time he designs him for a trade, wherein he, having no use of latin, fails not to forget that little which he brought from school ... ?"z newman, in opposing locke, argued that general culture of mind is the best aid to professional study, and that the man who has learned "to compare and to discriminate and to analyse" will not at once be a lawyer or businessman or engineer, but "will be placed in that state of intellect" in which he can take up any such calling with a special versatility and success.3 in comparing the academic aproach to law with the practical newman writes that a professor of law in a non-university environment is "in danger of being absorbed and narrowed by his pursuit" and of giving lectures which are only those of a lawyer. the professor in a university, however, will "know where he and his science stand, he has come to it ... from a height ... he is kept from extravagance by the very rivalry of other studies, he has gained from them a special illumination and largeness of mind ... and he treats his own in consequence with a philosophy and a resource, which belongs not to the study itself, but to his liberal education.,,4 now, clearly, newman is arguing for a breadth of liberal education which few undergraduate law courses could hope to confer in the time available, but the thrust of his contention, namely that the aim of university education is to train the mind to sift, analyse and compare, rather than to instil the mass of detailed niceties necessary for the practice of a profession, is, the present writer believes, fundamentally correct. few would deny the stimulus to the powers of analysis which legal studies provide: the determination of whether the consensus of offer and acceptance has occurred, or whether an unexpected event has frustrated a transaction, are ready examples from the english law of contract. but since the student has to digest so much factual knowledge of what the law is, there is often too little time to train his critical faculties by consideration of what the law ought to be; and it is here that a tertium quid comparationis would be valuable. it can also be urged against legal education in general that it allows no room for the use of the imagination the student's almost exclusive concern is the grasp of what the law is, here and now. the study of law reform and the solutions of other systems to legal problems, which stimulate the imagination, are not only liberal aspects of legal studies. they do, as newman claimed of liberal education, foster the agility of mind which facilitates professional success. the lawyer's client, particularly his business client, does not want to be told merely what the law is. he wants to be shown a legal route to securing his business objective. he does not want to be informed simply that he cannot structure a transaction in the way he proposed because it infringes a 2. quoted in j_h. newman, on the scope and nature of university educ(ltion (everyman edn.) (1915), pp. 152-153. 3. ibid., p. 159. 4. ibid., p. 160. 30 early jewish law and universi1y education statute; he wants to be shown legal machinery whereby he can achieve the same object in a legal way. in other words, the lawyer needs to think constructively, and with imagination, for ifhe serves only as a 'coin-op' shop for legal information, the computer may render him redundant. english legal history contains many examples of legal development through lawyers' imaginative use of legal concepts. karl renner describes how legal elements, joined to form a complex relationship, can be dissociated and re-combined so as to perform a different social function. he cites the modern hire-purchase agreement. the law concerning the sale of goods whereby a purchaser in possession can make title to third parties, and the law concerning the registration of chattel mortgages (which requires expensive formalities and enables creditors to veto a transaction), created serious obstacles to instalment sales. creative lawyers solved the problem by putting the instalment sale into the form of a hire for periodic rent with an option to purchase on paying a specified total of instalments.5 it was the same imaginative cast of mind that enabled chancery lawyers to devise the floating charge rather than advise their lender-clients that they could not realistically have a charge on the undertakings of borrowing companies because, by fixing on the stock-in-trade, the normal charge would prevent the companies trading. an early example concerns the statute de donis conditionalibus. this was passed by the landowners in parliament in 1285 because the courts had treated a gift ofland to "a and the heirs of his body" as a gift of the fee simple conditional only upon an heir being born: when an heir was born, a could convey the fee simple. this practice of the courts deprived the great landowners of the potential revenues arising from escheat for lack of heir, forfeiture and wardship. de donis therefore laid down that the tenant should have no power to alienate his estate to the prejudice of his issue or the grantor. creative lawyers then advised their tenant clients to proceed with the sale of their land, notwithstanding, and they inserted in the indenture a warranty by the grantor and his heirs in favour of the purchaser, for title and quiet possession. by virtue of this warranty, an heir who claimed to set aside his ancestor's alienation as unauthorised would find himself bound by the warranty, and though his action for ejectment of the purchaser might be successful, the consequent obligation to provide lands of equal value in satisfaction of the warranty would render success a pyrrhic victory. thus, the present argument is that a university law course should, inter alia, attempt to cater for the student who wishes to include in his studies a subject which will minister to his critical faculties, his historical sense and his powers of imagination. for this reason, we urge that, as an alternative to roman law, early jewish6 law should receive consideration when law syllabi are compiled. within these criteria it has several merits. * * * * * 5. the 11i5titutions of private law and their social function (english edn.) (1949). 6. for simplicity, we use the terms 'jewish' and 'jews' to indicate the people to whom the terms 'hebraic' and 'hebrews' would be more correct in their early history. 31 the denning law journal by 'early jewish law' is intended the period from about 400 b.c. when the pentateuch took final form, to about 200 a.d. when the next document, specifically written to record the law, the mishnah,1 was finally revised. the stimulus to the student's imagination in being transported to an ancient religious legal system, still retaining links with taboo and the influence of demonic force, can hardly be exaggerated. a useful contrast with modern law whose sources lie at hand in statutes and law reports, is that jewish law's development within that 600 year span has to be charted with the aid only of occasional references in later old testament books, such as haggai and daniel, in books from between the old and new testaments, such as jubilees and enoch, the dead sea scrolls and philo, in josephus and in the new testament documents ranging from circa 50-150 a.d. this historical study has attracted, amongst legal historians, such eminent scholars as david daube,8 haim cohn,9 duncan derrettlo and bernard jackson.1 \ on the whole, though, pentateuchal and subsequent jewish law has received much greater attention from theological than law faculties. the apparent reluctance of english legal historians to investigate religious legal systems is disappointing, but not new; maine noted that the connection with scripture had militated against acceptance of the patriarchal theory of the primeval condition of society. "inquirers", he wrote, "were either influenced by the strongest prejudice against hebrew antiquities or by the strongest desire to construct their system without the assistance of religious records." \2 yet this law is a proper subject for study both by theologians and lawyers, since it is, on its own claims, both the word of god and a legal system. the combined insights of both disciplines would surely produce the most fruitful results. for even if the legal historian defines his territory cautiously and denies that religious and ceremonial ordinances are truly 'law', there is much law of a secular nature sanctioned by punishment from a court (the sanhedrin of later times). anthony phillips is a notable example of a scholar who is able to apply to early jewish law the disciplines both of the lawyer and of the theologian. although professionally a theologian, he is also a trained lawyer, and his studies of pentateuchal law seem to have benefited from his legal knowledge: important features of his best-known work, ancient israel's criminal law: a new approach to the decalogue,13 are his discernment that ancient israel distinguished between crimes and torts, and that the ten commandments in an original shortened 7. the date of the tosephla, another collection of halakholh, is much disputed by scholars. literally, tosephla means 'additions' (to the mishnah), but some of its sources are old. it is traditionally considered to have been compiled shortly after the mishnah. 8. see, e.g., his studies ill biblical law (1947). 9. see, e.g., his "prolegomena to the theory and history of jewish law", in essays illjurisprudellce ill hollor of roscoe poulld (1962). 10. see, e.g., his law illlhe new teslametll (1970). ii. see, e.g., his theji ill ear()' jewish law (1972). 12.allcit'1/t law 5th ed. (1894), pp. 122-123. his patriarchal theory has since been strongly doubted: see stein, legal evolutioll. pp. 101-103. 13. oxford, 1970. 32 early jewish law and university education version given at sinai, were israel's criminal law before the exile. in a recent article,14 phillips has maintained that in the earliest legal traditions in the old testament offences against the person, such as murder and assault on parents, are punishable by the community with the imposition of the death penalty, while offences against property are civil offences for which compensation is payable. here again his insights as a lawyer have surely assisted his research. admittedly, the lawyer, untrained in biblical criticism, meets the difficulty of determining what in a particular text is probably original, and what is later revision, but here he can build upon the literary-critical researches of his theological fellow-workers in the field. the jewish law covers every aspect of life: there is no distinction between the religious and the secular, since god's will, revealed in the law, extends to the whole of life. in that the law thus includes the personal areas of life within its control, for those who, like this writer, still identify a legal rule by its accompanying sanction, the sanctions within these areas challenge the very definition oflaw. for example, the sanction for breach of the laws of ceremonial purity was the disqualification of the impure person from entry to the temple, unless he or she had first undergone the appropriate lustration and period of waiting. is but how could these laws by policed? the male and female sexual discharges are a potent source of impurity, yet who was to know, except the sufferer, whether he or she had sustained impurity through such an occasion? jehoiada, a 9th century chief priest, is reported at 2 chronicles 23, 19 to have placed keepers at the gates of the temple so that nobody unclean should enter, but the aim seems incapable of realisation. probably the only sanction was the sufferer's conscience or fear of divine retribution. the fathers according to rabbi nathan, 16 a 3rd or 4th century a.d. collection of haggadah, 17 explains the sanction thus: " ... one has suffered a pollution. if he is so minded he bathes; if he is otherwise minded he does not bathe. does anyone see him, or does anyone know to tell him ought? he fears only him who commands ritual immersion.,,18 this sanction appears to be within austin's "eventual evil annexed to a command", if "evil" be rather interpreted as "penalty". 19 not only is the distinction between the secular and the religious absent in a religious system, but there is also identity between law and ethics. since jewish law is the revealed will of god who is perfect holiness,z° the law, in addition to command, must represent the highest moral good.21 to this statement one 14. "the decalogue ancient israel's criminal law", 34 jo. of jewish studies (1983), pp. 1-20. is. see, e.g., leviticus 15,28-31. cf the code of maimollides (tr. danby) (\ 954), bk. x, p. 393. 16. (tr. goldin) (1955), p. 18. 17. spiritual, homiletical and legendary material generally linked to a scriptural text. 18. pursuant to leviticus 15,16. 19. leclures 011 jurispntdellce 4th ed., vol. i, pp. 182-183. 20. see, e.g., isaiah 6,3-5. 21. see, e.g., micah 6,8; amos 5,14-i5. maine, supra n.12, writes at p. 16 concerning the ancient codes that the severance of law from morality, and of religion from law, belongs to the later stages of mental progress. however, in the case of a divinely revealed law, its unity with religion and morality cannot be severed. 33 http://www.ingentaconnect.com/content/external-references?article=0022-2097(1983)34l.1[aid=7379124] http://www.ingentaconnect.com/content/external-references?article=0022-2097(1983)34l.1[aid=7379124] http://www.ingentaconnect.com/content/external-references?article=0022-2097(1983)34l.1[aid=7379124] the denning law journal qualification must be made: in the jewish religion there was a tension between its two aspects, the temple and cult, and the prophets, between the service of god through the performance of correct ritual, and his service through righteous conduct.22 although the prophetic ideals clearly influenced the book of deuteronomy, on the whole, the emphasis in the pentateuchal law was on the ceremonial service of god. a social system in which law can possess such an elevated status surely merits study in its practical application, for even courts of equity in england do not usually claim that equitable duty is co-terminous with moral duty. thus in re cawley fs co.23 fry l. j. admitted, "if we were sitting in a court of honour, our decision might be different", and in buttle v. saunders,24 by requiring trustees to 'gazump' in the financial interest of the beneficiaries, the court prevented trustees from following the acknowledged practice of honourable businessmen. the reputation of equity as a modern arbiter of ethics was pithily encapsulated by the judge whose name we salute in this journal, when, commenting on the suggestion that a father was entitled to recover dividends which he had caused his company to declare, and pay for the benefit of his children, he exclaimed, "even a court of equity would not allow him to do anything so inequitable and unjust. ,,25 however, even in israel the law, and the moral values which it reflected, developed with its history; and the history of jewish law is a fascinating account of how codes were adapted by means of commentary26 and of fiction, to serve the changing needs of a primitive agrarian society gradually growing more civilised. the most primitive code is usually considered to lie in exodus 34, since it contains a list of ten, mainly short, commandments, most of which relate to religious festivals and sacrifices appropriate to a pastoral community. unlike the decalogue in exodus 20, there are no moral commands. it is thought to date from the 9th century. the later part of the covenant code, exodus 20-23, is dated in the 8th century, and examples of its ethical provisions are that widows and orphans shall not be afflicted,27 or usury taken from the poor. 28 the deuteronomic code (deuteronomy 12-26) is believed to be the book of the law discovered in the temple in 621 b.c.;29 it is more comprehensive, is suited to a more civilised society, and contains charitable and humanitarian provisions. for example, the man who has just built a house, or planted a vineyard, shall not be conscripted for war. the same applies to the faint-hearted and the recently 22. see, e.g., amos 5,21-24; isaiah 1,12-17; jeremiah 7,1-7, 21-23. 23. (1889) 42 ch.d. 209, 236. 24. [1950] 2 all e.r. 193. 25. re vandervell's trusls (no.2) [1974] 3 all e.r. 20. 26. both ancient and modern codes have thus received an extended life; see the commentaries on the roman praetor's edict and on the french code civile in allen, law i,1 ihe making 7th ed. (1964), pp. 165-187. 27. exodus 22,23-24. 28. exodus 22,25. 29. 2 kings 22,8. 34 early jewish law and university education married.30 a similar kindness is to be shown to animals; the ox is not to be muzzled while threshing.31 the remission of debts in the 7th year,32 the rules of primogeniture in inheritance33 and the law of levirate34 (a man's obligation to marry his deceased brother's widow) are examples of increasingly civilised 'lawyers' law. this code largely repeats and supplements the covenant code, but the additions and variations exhibit a more sophisticated society. thus, the compensations to be paid for various injuries35 are omitted from the later code, which presumes the sitting of permanent judges36 to decide such matters. the priestly code, probably written during the exile in the 6th century b.c. is, apart from its core, the holiness code of leviticus 17-26, law in the form of history; what happened in the past is recounted so that it may regulate what is done to-day.37 this creation of precedent by historical narrative is an intriguing variation of stare decisis. the priestly code fills leviticus and most of numbers, and is scattered through genesis and exodus. not surprisingly, it enhances the role of the priesthood, and elaborates the ceremonial law. 38 genesis 2,1-3 and 9,1-17, illustrates the way in which the priestly authors make law by their writing of supposed history. institution of the sabbath rest is attributed to yahweh in creation, and the basic laws considered to be binding even on gentiles (not to eat blood and not to shed it), are inserted in a covenant with noah. similarly, a decision by david concerning the distribution of spoil between combatants and non-combatants (1 sam. 30,24) reappears in the priestly code (numbers 31,27) as an alleged part of the mosaic laws. the achievement of the sopherim39 and scribes in adapting this ancient written law to the changing mores and circumstances of later times, by means of the interpretation of it, should commend itself to the student of legal history. following neglect of the law by generations of the exiled who had been allowed by 30. deuteronomy 20,5-8. 31. deuteronomy 25,4. 32. deuteronomy 15,1-3. 33. deuteronomy 21,15-17. 34. deuteronomy 25,5-10. 35. as at, e.g., exodus 21,18-24,32. 36. deuteronomy 17,8-11. 37. judaism is an 'historical' religion for the faith is founded on 'salvation' events; that yahweh delivered israel from slavery in egypt, and delivered the law to moses on sinai. the former historical root is reflected in the latter. the reason for the jew, his servants and his cattle not working on the sabbath, for releasing slaves and furnishing them liberally in the seventh year, and for not denying justice to the sojourner or fatherless, is that "you were a slave in egypt and the lord your god released you from there": deuteronomy 5,12-15; 15,12-15; 24,17-18. 38. the code is, in part, idealised law, representing what its authors would like to prevail. cf maine, supra n.12, p.17 speaking of the religious oligarchies of asia: "their complete monopoly of legal knowledge appears to have enabled them to put off on the world collections not so much of the rules actually observed as of the rules which the priestly order considered proper to bc observed." 39. traditionally the sopherim (literally 'writers') are identified with the men of the great synagogue (led by ezra) to whom the law is said at aboth 1,1 to have been committed by the prophets. however the sopherim and the scribes are often grouped together as 'the scribes', since ezra is himself described as 'the scribe' (nehemiah 8,1). 35 the denning law journal cyrus to return from babylon to jerusalem (circa 535 b.c.), ezra publicly read the law in 444 b.c.40 and scripture emphasises that the levites "helped the people to understand" the law, and "gave the sense so that the people understood the reading" (nehemiah 8,7-8).41 at first, the adaptation was effected by exegesis of particular verses of scripture, and examples of this method ('midrash') are preserved in the rabbinical commentaries, mekhilta, sifre and sifra.42 but with the advent of hellenistic ideas and customs, following alexander's eastern conquests, the sopherim were unable to relate them to the codes, and the influence of the sopherim consequently waned. at this point jewish jurisprudence by means of a remarkable fiction, at least to the secular mind, sowed the seeds of an unstoppable growth and development. since some of the new ideas were good and sensible, even though no support for them could be found in the written codes, some teachers argued that there must be divine authority for them, and that some laws must therefore have been delivered to moses at sinai by word of mouth. attempt was still made by these teachers ('scribes') to base a legal ruling ('halakhah') upon a scriptural text, even if only tenuously,43 but much freer interpretation of the text was permitted.44 where the meaning of the text could not be stretched far enough even by this method the favoured practice was deemed to be a law handed down by moses at sinai.45 however, a rule or custom was only accepted by the scribes as traditional law in this sense if its authenticity was guaranteed by the pronouncements of earlier scribes.46 the authority which this mythical origin at sinai gave to the unwritten law, enabled the scribes to interpret the written law in ways which sometimes 40. it is uncertain whether the whole pentateuch was read or simply the priestly code, but "it is clear that only alier ezra's activity did the priestly source come out into the daylight": m. haran, "behind the scenes of history: determining the date of the priestly source" ,)0. of biblical lileralure (1981), at p.324. 41. this probably signifies that the sopherim both translated the text into the vernacular aramaic, and explained it. 42. on exodus, numbers and leviticus respectively. in their original form they are dated in the 2nd century a.d. 43. thus, leviticus 11,40 provides that he who eats the carcass of a beast which has died naturally shall be unclean. this was interpreted to mean not that non-kosher meat defiled the eater, but that the minimum amount of unclean meat which a person has to bear or touch, to be defiled, is the minimum amount that could be termed 'eating', i.e. a piece the size of an olive (sifra; niddah 42b). 44. nevertheless, permissible methods for extracting further rules (halakholh) from the written text were laid down; the first such set of rules, the 7 middoth, were attributed to hillel (tosephta, sanhedrin 7,11). 45. r.joshua b. hananiah, prominent in the academy established at yavneh after the destruction of the temple in a.d.70, criticised halakllolh with little scriptural support: a nail maker by trade, he said, "tongs were made with tongs, but who made the first tongs?" (tosephta, haf,rigah 1,9). he was referring (inler alia) to the sabbath laws which "are like mountains hanging by a string, for they have little scripture for many laws" (ibid.). 46. £.f(., at mishnah, eduyoth 9,7 the said r. joshua declared: "i have received as a tradition from rabban johanan b. zakkai, who heard from his teacher, and his teacher from his teacher, as a halakhah given to moses from sinai that .. " 36 early jewish law and university education conflicted with its common-sense meaning.47 thus, exodus 22,1 provides that if a man steals an ox or a sheep and kills or sells it, he must restore five or four-fold respectively. the scribes ruled that if he stole according to the evidence of two witnesses, but killed or sold according to only one person's evidence, then the tariff of restoration was only two-fold (which applied to theft of entrusted money or goods: exodus 22,7).48 this scribal freedom was often exercised to alleviate the severity of the written law,49 and sometimes without attempt at biblical interpretation. the lex talionis (exodus 21,23) which was intended to restria unlimited private revenge, was repealed by the scribes' substitution of pecuniary damages (mishnah, baba kamma 8,1). jewish history accordingly offers a rich account of the development of law through commentary upon code and through fiction. to the student of legal history, the humanitarian trends of the pharisaic law afford a noteworthy comparison with the influence of equity on the english common law. as just discussed, the rigour of the written law was often avoided by the use of the rules of evidence. the evidence of at least two witnesses was required in a capital case. so if the evidence of the witnesses disagreed even on minor points, e.g. if one said the offence took place at the fifth hour and another the seventh hour (mishnah, sanhedrin 5,3), their entire evidence was rejected.s1 study of the unwritten law reveals many examples of that creative approach to law which the university should seek to inculcate. one effect of the release of debts every 7 years (deuteronomy 15,9) was the difficulty of borrowing money in, say, the 6th year. thus the famed pharisee, hillel (founder of one of the two competing schools of pharisaic thought), instituted the prosbul which, through a declaration by the creditor before the court, negatived the operation of that law.s2 again, deuteronomy 24,1 provides that a man may divorce his wife simply by delivering a bill of divorce, but the scribes, by requiring detailed formalities affecting this documents3 and by institution of the ketubah (whereby the husband had to charge his assets to secure payment of the dowry to the wife on widowhood or divorce), 54 sought to protect the wife's position. 47. the scribes varied in degrees of conservatism according to their willingness to accept new halakhoth. r. eliezer b. hyrcanus (a contemporary of the said r.joshua, and a frequent disputant with him) would not pass on an halakhah to his students, unless it had been handed down by teachers of two previous generations. r.joshua is thought to have disapproved of the multiplication of halakhoth, for he would say of a recent ruling cited to him, "the scribes have invented a new thing, and i cannot make answer (to them that would gainsay them)"; e.g., kelim 13,7. 48. 8aba kamma 7,4. 49. a guiding principle of the scribes was not to impose a rule which most people would be incapable of observing (8aba 8athra 60b). so. deuteronomy 17,6. 51. shebiith 9,3-4. in the history of susanna the capital conviction of susanna by the jewish elders for adultery was quashed when daniel, in separate examination of each of the two witnesses, elicited from one that the act was done under a mastick tree, and from the other under a holm tree. 52. shebiith 10,3-4. 53. gillin, passim. 54. shabo 14b and see the soncino talmud, moed i, p. 59, n. 6. 37 the denning law journal the role of intent in jewish law also repays study. indeed, one would expect internal state of mind to be important in a religious law. intention was an essential component in the legal effect of an act from an early stage, and the old common law rule that a man may be presumed to intend the natural consequences of his acts,55 does not usually operate. deuteronomy 19,4-13, provides that if a man kills his neighbour unintentionally, as where the head of the tree-cutter's axe slips from the handle and kills, he may flee to a city of asylum. but where a man lies in wait for, and attacks his neighbour fatally, and then flees to a city of asylum, the elders may recover him and hand him over to the avenger. pollock's claim that "even manifest intention is hardly treated as a possible or proper subject-matter of judicial proof in archaic systems oflaw,,56 accordingly appears open to question. in mishnaic times, state of mind has the same importance both in religious and civil matters. if a man recites the shema (daily prayer) without directing his heart to it, he has not fulfilled his obligation (berakoth 2,1). again if a man only intends to strike another on the loins, but the blow lands on his heart and kills him, the striker is not liable for killing (sanhedrin 9,2).57 liability for injury by even an ox is determined by what the ox intended (baba kamma 5,4)! jewish law offers the student interesting insights into the function of custom in the growth oflaw. although the jews believed the covenant code to be the word of god, it seems probable that, like the twelve tables of r0me, it comprised accumulated custom. although the deuteronomic code contains hortatory matter, and the priestly code idealism, later custom is surely embedded there too. and in the traditional law enunciated by the scribes, there is reason to believe that many rules were giving legal sanction to customs. thus, hillel was asked whether it was permissible for the worshippers on the passover to bring knives to the temple for the slaughter of their sacrificial lambs, even when the passover fell on a sabbath, since on the sabbath the carrying of articles may constitute a breach of the prohibition of work. 58 hillel told his questioners to observe what, in fact, the people were doing on such a sabbath, and they noticed that the worshippers had attached the knives to the animals they were leading. the rule was, therefore, that to this extent the passover over-rode the sabbath.59 a most significant feature of this different thought-world, for the imaginative student, is the jewish joy in fulfilling the commands of the law which contrasts with 55. r. v. haroey [1823] z b.&c.z57. winfield ina textbook of the law of tort, 5th ed. (1950) wtote at p. 20: "if i fire a gun at your dog, wishing merely to scare it, and in fact some of the pellets hit it, it does not lie in my mouth to say that i intended only to scare it and not to hit it. and it would be equally idle for me, at any rate in the law of tort, to say that i never wished to hit you, if in faci some of the shot glanced off the ground and wounded you who were standing near your dog." 56. a first book of jurisprudence 6th ed. (1929), p. 159. 57. admittedly, there is liability in some cases, particularly in matters of ritual, irrespective of knowledge of the act or intent: see, e.g. leviticus, 4,13; 5,1-6. 58. shabo 1,1-3. concerning the influence of custom and the folkways in the' formation of law in a theocratic society, see also the presenl writer's jesus and the laws of purit)' osot press, sheffield, 1986). 59. tosephta pisha 4,14. 38 early jewish law and university education the often reluctant and critical attitude towards the law's requirements in a secularly based system. expressions such as the psalmist's "oh, how i love thy law! it is my meditation all the day" and "blessed is the man ... his delight is in the law of the lord, and on his law he meditates day and night" 60 indicate the devotion of the orthodox to a religious legal sytem. * * * * * this writer is not aware of any text-book of early jewish law written specifically with the law-student in mind, but we have mentioned most of its literary sources above, and it would not be beyond the competence of the teacher to give in his lectures the necessary historical background and explanation of those sources. this trumpeting of the claims of early jewish law to a place as an optional course in academic legal syllabi is not intended to deprecate the claims of other systems of ancient religious law, such as the hindu or the moslem, which we understand already to be optional courses in the ll.b. curriculum at the school of oriental and african studies of london university. indeed, the greater current prevalence of those systems in britain's multi-racial society, will enhance their attraction for the proponents of utilitarianism. we are submitting only that the purpose of a university ought to be the conferment of a liberal education upon its students and that, within the context of an academic legal education, early jewish law's embrace of religion, jurisprudence, ancient history and literature, renders it a suitable medium to that end, stimulating, as it will, the student's imaginative and creative powers no less than his historical and critical faculties. 60. psalms 119,97; 1,1-2. the element of joy in judaism is sometimes overlooked. the early law stipulated, "you shall rejoice before the lord" at the feast of weeks, and "you will be altogether joyful" at the feast of booths (deuteronomy 16,11 and 15). this spirit extended into later times. the said r. joshua declared that on a festival day a man should devote half his time to god and half to merrymaking (bezah isb), and at shabo 118b we read, "he who delights in the sabbath is granted his heart's desires." 39 the denning law journal 123 denning law journal 2019 vol 31 pp 123-145 the nigerian supreme court and the political question doctrine ekokoi solomon* ekereobong essien** * ekokoi solomon is a phd candidate at the faculty of law, university of calabar, nigeria, and lecturer in law, department of public law, faculty of law, university of uyo, nigeria. e-mail: emmanuelsolomon@uniuyo.edu.ng; ekokoisolomon@yahoo.com ** llb (hons), bl & llm student at the faculty of law, rivers state university, port harcourt, nigeria. e-mail: ekyice1@gmail.com 1 l tremblay, ‘the legitimacy of judicial review: the limits of dialogue between courts and legislatures’ (2005) 3(4) international journal of constitutional law 617. abstract this paper examines the attitude of the supreme court of nigeria towards the political question doctrine. it examines the decisions of the court in some landmark cases involving political questions since the first republic up until the fourth republic, which commenced in may 1999. the paper identifies three core doctrines espoused by the court in cases involving political questions: deference, necessity or exigency and avoidance or passive doctrines. this paper demonstrates the inevitability of the court’s engagement in the adjudication of cases involving political questions. this is because by virtue of its role in the governance process, the apex court is both a political and legal institution. the paper, therefore, recommends that the court should openly assert the ‘politicality’ of its decisions, whether they are predicated on the court’s deference to the political branches of government, the necessity or exigency of the issues involved in the case at hand, and/or the need to avoid the political question involved in the case before it. introduction analyses of decisions of courts in cases which involve political questions are bound to raise the issue of institutional dialogue. the theory of institutional dialogue has been described as the engagement of the courts and legislature in a dialogue ‘regarding the determination of the proper balance between constitutional principles and public policies’.1 when dialogue occurs between courts and the legislature, both institutions place emphasis on different values. while courts emphasise the need to maintain fundamental procedural values, the legislature, on its part, concerns itself with promoting certain economic, social and political mailto:emmanuelsolomon@uniuyo.edu.ng mailto:ekokoisolomon@yahoo.com mailto:ekyice1@gmail.com 124 the nigerian supreme court and the political question doctrine ends.2 institutional dialogue sometimes produces conflict between legality and legitimacy. when the decision of a court appears to conflict or actually conflicts with legislative intent or outcome, the former ‘can be reversed, modified, or avoided by a new law, [and] any concern about the legitimacy of judicial review is greatly diminished’.3 this is because the core substance of any new law will have to effectively address the consequence of the court’s decision.4 in a constitutional democracy, political questions are generally within the realm of the political branches of government (the legislature and executive). in nigeria, the notion whether judicial self-restrain in cases involving political questions is a myth or reality, is arguably an issue for legal and scholarly debate. the divergent views on the issue may be attributed to two opposing conceptions. the first is the notion of the inherent powers of the courts to entertain any matter brought before them for judicial determination.5 the second is the conception that the inherent powers of courts are only meant to complement the powers which the constitution and statutes confer on the courts, rather than conferring a separate and distinct jurisdiction on them,6 as inherent powers do not extend the jurisdiction of courts but merely lubricate it.7 definition of concepts is a problematic academic enterprise, as there is practically no common ground to its conceptualisation. to this end, it is essential to adopt a pragmatic approach in defining any concept. thus, in onuoha v okafor,8 the supreme court of nigeria (the court) laid down two considerations for the determination of what constitutes political question. the first pertains to the lack of satisfactory criteria for judicial determination of the issues before a court, and the second is the appropriateness of attributing finality to the action of the political department under the prevailing constitutional order.9 therefore, the political question doctrine is the notion which assists courts to navigate within the 2 ibid., 633. 3 p hogg and a bushell, ‘the charter dialogue between courts and legislatures: or perhaps the charter of rights isn’t such a bad thing after all’ (1997) 35(1) osgoode hall law journal 75, 80. 4 ibid. 5 constitution of the federal republic of nigeria, cap c23 laws of the federation of nigeria (lfn) 2004 [hereinafter cfrn 1999 or the constitution] s 6(6)(a),(b); adigun v attorney general, oyo state [1987] all nlr 328, 344; 2 nwlr (pt 56) 197; see also km mowoe, constitutional law in nigeria (malthouse press 2008) 179–180. 6 the young shall grow motors ltd v okonkwo [2002] 38 wrn 98. 7 akilu v fawehinmi (no 2) [1989] 2 nwlr (pt 102) 122, 197. 8 [1983] nscc 494. 9 ibid., 507. the denning law journal 125 confines of judicial tradition and by so doing avoid constitutional controversies. this means that in certain situations it will be inappropriate or injudicious for the courts to interfere, overtly or directly, with what properly should be within the realm of the political branches of government.10 thus, a judicial matter contains a political question ‘when either the constitution has expressly vested jurisdiction over the issue [in a case] in the other two branches of the government or it is implicit in line with the concept of separation of powers that this should be so’.11 it should be noted, however, that not all political and constitutional cases constitute political questions, even though all constitutional cases have political relevance. according to ademola popoola, political questions are distinguishable from political cases. this is because the characterisation of what constitutes a political question ‘does not lie in any possible effect which the decision may have on the political framework of the country’.12 when judicial decisions, in cases involving political questions, produce outcomes which are incongruous with the economic, social or political aspirations of society, such decisions can be considered as having the force of legality but lacking in legitimacy. this means that judicial decisions of courts may be legal (in as much as such decisions are elucidated based on rules that are discernible and implicit or inferred from the legal instrument upon which judicial interpretations are predicated) but lack overt acceptability. this is generally applicable to judicial cases involving political questions. this paper does not seek to critique the decisions of the court for sake of it, even though it is trite that decisions of courts may be critiqued in appropriate forums such as this, albeit respectfully. in adigun v attorney-general, oyo state, the court noted that in view of the great powers which the court wields, it is necessary to exercise such powers with care. therefore, it is imperative for ‘pungent and constructive analytical criticism of every judgement of the court in the law journals and similar fora. [for] [t]he judgement of a court should not be treated with sacred sanctity, once it gets to the right critical forum’.13 this is because the court is not infallible but merely final.14 10 a casties, ‘justiciability: political question’ in la stein (ed), locus standi (law books co 1979) 202; see also, rc chandler, ra enslen and pg renstrom, the constitutional law dictionary: governmental powers (abc-clio inc 1987) 644. 11 a popoola, ‘politics of the nigerian judiciary’ in proceedings of the nigerian association of law teachers conference, 1994, 70; see also chandler, enslen, and renstrom, ibid. 12 ibid. 13 adigun (n 7) 328, 344; 2 nwlr 214–215 (eso jsc). 14 adegoke motors v adesanya [1989] 3 nwlr (pt 109) 250, 274–275. 126 accordingly, this paper examines the attitude of the court towards the political question doctrine and highlights the inconsistencies in the approach of the court in some landmark cases which involved political questions. these inconsistencies undoubtedly constitute a major source of the legitimacy question with regards to the activity of judicial review in nigeria.15 the paper asserts that the decisions of the court, in cases involving political questions, have been shaped by (i) its deference to the political branches; (ii) the necessity or exigency of the moment; and (iii) the doctrine of avoidance. these factors are suggestive of the court’s ‘awareness of the events around [it] and the prevailing social and even political situations’.16 certainly, the making of decisions based on the prevailing social and political situations set up the court as a participant in the policy-making process and by implication a political institution, just as it is also a legal institution.17 the court and constitutional adjudication the court is established in section 230 of the cfrn 1999. it is the highest court in the hierarchy of the judicature in nigeria. all adjudications, with the exception of certain electoral cases,18 terminate at the court.19 apart from the general powers of the court under section 6 of the cfrn 1999, the court possesses both original20 and appellate21 jurisdictions. cases go on appeal to the court either as of right22 or with leave of the court of appeal, which decision is to be appealed, or with leave of the court.23 15 e nwauche, ‘is the end near for the political question doctrine in nigeria?’ in c fombad and c murray (eds), fostering constitutionalism in africa (pretoria, university of pretoria press 2010) 33; m ikhariale, ‘impeachment proceedings and the political question doctrine: the nigerian experience’ (1990) lasu law journal 45, 54. 16 popoola (n 13) 68. 17 ibid., 62, 64–65. 18 cfrn 1999, s 246(3); abubakar v usman [2017] 15 nwlr (pt 1587) 36. 19 cfrn 1999, s 235. there is, however, a proposal which was sponsored by the judiciary, seeking to limit the jurisdiction of the supreme court of nigeria in terms of appeals from the court of appeal to entertain only cases involving the death penalty, enforcement of human rights and interpretation of the constitution. see, policy and legal advocacy centre, ‘factsheet on bills seeking to further amend the constitution to reflect proposals initiated by the judiciary’ (july 2017) issue 3 factsheet: review of relevant information on nigeria’s democracy 1. 20 cfrn 1999, s 232; see also, supreme court act cap s15 lfn 2004, s 17. 21 cfrn 1999, s 233(1); supreme court act cap s15 lfn 2004, s 16(1). 22 cfrn 1999, s 233(2). 23 ibid., s 235(3). the nigerian supreme court and the political question doctrine the denning law journal 127 in terms of the original jurisdiction of the court, section 232(1) of the cfrn 1999 empowers the court, to the exclusion of any other court, to entertain cases involving ‘any dispute between the federation and a state or between states if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends’. the court is sometimes invited to decide cases which involve political questions that may emanate by virtue of the horizontal relations between the other two branches of government, or from the vertical relations between the federal and state governments, or from electoral, political party and other political activities. drawing from the above, the issue whether the court can competently exercise its judicial powers in such a manner that limits or is capable of limiting the potency of positive law may be raised.24 generally, courts cannot exercise judicial powers to defeat the intention of the legislature or write into legislation what was not intended by the legislature or to rewrite a legislation through judicial decisions. by virtue of the foregoing, the court is not required to legislate from the bench – not even under the pretext of constitutional adjudication – as to do so would amount to exceeding its judicial powers and venturing into the realm of politics. what does constitutional adjudication entail? constitutional adjudication entails judicial interpretation of the constitution. this is because written constitutions are not self-actualising and are inherently indeterminate.25 for this reason, written constitutions require interpretation and adaptation to changing circumstances,26 which are themselves ‘both unavoidable and problematic’.27 even so, james madison hoped that in a constitutional democracy ‘[a]mbition must be made to counteract ambition’,28 so that the law of the constitution could be made self-enforcing by aligning the interests of the departments of government with constitutional rights.29 according to madison’s theory, self-enforcement of constitutional law is realisable through constitutional separation of powers between the legislative, executive and judicial branches of 24 dangana v usman [2012] 2 sc (pt iii) 103, 130. 25 c lafont, ‘philosophical foundations of judicial review’ in d dyzenhaus and m thorburn (eds), philosophical foundations of constitutional law (oup 2016) 265. 26 d kommers, ‘germany: balancing rights and duties’ in j goldsworthy (ed), interpreting constitutions (oup 2006) 196. 27 lafont (n 27). 28 j madison, ‘federalist 51’ in l goldman (ed), alexander hamilton, james madison, and john jay: the federalist papers (new york, oup 2008) 257. 29 ibid. 128 government.30 therefore, in interpreting the constitution, courts must ensure that the meaning accorded to constitutional texts is true to the spirit of the constitutional order. this is because, first, according to aharon barak, a former president of the supreme court of israel, ‘[e]very [constitutional] text has two meanings: an express meaning and an implied meaning’31 and second, wide power of construction, in john taylor’s view, may allow courts to stretch constitutional adjudication in manners that render the activity more amenable to the attainment of purposes in view or predetermined objectives just ‘as synods do scriptures, according to the temporal interest of the predominant sect’.32 the cfrn 1999, like other written constitutions, is open-textured and allows for competing, conservative and liberal readings33 of the constitutional texts, and also commits to certain basic constitutional principles.34 as already noted, the open-textured nature of nigerian constitutions, including the cfrn 1999, gives rise to divergence in constitutional interpretation. while constitutional adjudication may be considered an inevitable and overlapping judicial activity, it is however important to ensure that decisions which emanate from the process are objective and based on positive law, as well as capable of promoting the economic, social and political aspirations of the society. this ensures that judicial decisions produce the best interpretation possible.35 it would appear the court favours two main approaches in constitutional interpretation. the first is the minimalist approach. this approach in the interpretation of the constitution, to a large extent, has its origin in nigeria’s colonial heritage.36 the court applied the minimalist approach, for example, in attorney-general, ondo v attorney-general, federation (icpc case),37 wherein the court unequivocally pronounced its support for the anti-corruption policy of 30 j goldsmith and d levinson, ‘law for states: international law, constitutional law, public law’ (may 2009) 122(7) harvard law review 1792, 1832. 31 a barak, ‘on constitutional implications and constitutional structure’ in d dyzenhaus and m thorburn (eds), philosophical foundations of constitutional law (oup 2016) 53. 32 j taylor, construction construed and constitutions vindicated (reprint edn, the lawbook exchange ltd 1998) 23. 33 t roux, ‘transformative constitutionalism and the best interpretation of the south african constitution: distinction without a difference’ (2009) 2 stell lr 278. 34 e solomon, ‘the basic structure doctrine and implied limitations on the exercise of legislative powers under the nigerian constitution’ (2016) 9 university of uyo law journal 267. 35 ibid., 279–280. 36 h yusuf, ‘the judiciary and political change in africa: developing transitional jurisprudence in nigeria’ (october 2009) 7(4) icon 654, 664. 37 [2002] 6 sc (pt i) 1. the nigerian supreme court and the political question doctrine the denning law journal 129 the federal government in spite of the unitary disposition of the corrupt practices and other related offences act38 which negates the principle of federalism under the constitution, even as the court struck down sections 26(3) and 35 of the icpc act for its violation of the fundamental right to liberty.39 the minimalist approach, it would appear, accounts for the court’s reluctance to enforce, for example, certain provisions of the fundamental objectives and directive principles of state policy provisions of the constitution,40 and holding that the objective to eliminate corruption can be realised through the enactment and enforcement of legislation.41 the second approach to constitutional adjudication favoured by the court is the structural or purposive approach. the purposive approach in the interpretation of the constitution involves the systematic analysis or inquiry into the structure and function or purpose of constitutional rules. it seeks to find guidance in constitutional history and the spirit of the constitution as a living document. this approach emphasises practicality over abstract analysis, structure over procedural considerations, efficiency over textuality and the end prevailing over the means.42 the structural or purposive approach, therefore, ensures the unity and coherence of constitutional order.43 this approach seeks to entrench the existing constitutional order by going beyond explicit constitutional provisions to apply norms that may be implied from the constitutional texts.44 the court has applied the structural or purposive approach in plethora of cases. for example, in bronik motors ltd v wema bank ltd,45 the court held that a constitution is a living document which requires a purposive interpretation of its provisions in order to promote the objects of its provisions and intention of the 38 no 5 of 2000, repealed by corrupt practices and other related offences act (no 6 of 2003) cap c31 lfn 2004 [icpc act] s 55. 39 this led to the repeal of the icpc act, no 5 of 2000 and the enactment of the icpc act, no 6 of 2003. 40 g okeke and c okeke, ‘the justiciability of the non-justiciable constitutional policy of governance in nigeria’ (january–february 2013) 7(6) journal of humanities and social science 9–14. 41 icpc case (n 39) 28–30. 42 j madison, ‘federalist 40’ in l goldman (ed), alexander hamilton, james madison, and john jay: the federalist papers (oup 2008) 194; see also solomon (n 36). 43 kommers (n 28) 199–200. 44 c chandrachud, ‘constitutional falsehoods: the fourth judges case and the basic structure doctrine in india’ in r albert and b oder (eds), an unamendable constitution? unamendability in constitutional democracies (springer international publishing ag 2018) 149; see also solomon (n 36). 45 [1983] anlr 272. 130 framers of the constitution.46 in dangana v usman, the court held that in constitutional adjudication, a judge should not only rely on the constitutional texts but also consider the historical evolution of constitutional practice and history prior to the enactment of the existing constitution.47 in the same vein, in rabiu v state,48 the court held that it is not the duty of the ‘court to construe any of the provisions of the constitution as to defeat the obvious ends of the constitution’,49 or indeed to give an interpretation that will defeat the principles upon which a constitutional rule was established.50 also, in attorney-general, abia state & 2 ors v attorney-general, federation (revenue monitoring case),51 a case in which the plaintiffs challenged the constitutionality of the local government revenue management act, a legislation which was enacted to promote the economic and social well-being of the citizens in local communities. in this case, the court was called upon ‘to respond to the dilemma presented by the need to secure a balance between a laudable policy objective with constitutional support and a fundamental black-letter constitutional principle’.52 in its decision, the court held that the revenue monitoring case was not about the need to curb corruption but about the violation of a major constitutional principle, namely, federalism.53 it should be noted however, that there appears to be an emerging approach by the court in constitutional adjudication. this approach is reflective of the passive disposition on the part of the court towards constitutional adjudication to the extent of avoiding major constitutional questions brought before it for judicial determination.54 the following sections of this paper examine the attitude of the court in the constitutional adjudication of cases with political questions. 46 ibid., 291–292. 47 dangana (n 26) 152. 48 [1980] 8–11 sc 130. 49 ibid., 149 (udoma jsc). 50 attorney-general, bendel state v attorney-general, federation & 22 ors [1981] anlr 85, 130–131. 51 [2006] 2 all nlr 24. 52 yusuf (n 38) 663. 53 revenue monitoring case (n 53) 32. 54 in attorney-general, federation v national assembly [april 2015] unreported, suit no sc/214/2015 <http://nationalmirroronline.net/new/fg-drags-nass-to-supreme-court/> accessed 11 january 2018, the court avoided constitutional adjudication by failing or refusing to determine the constitutionality of the fourth alteration bill 2015 passed by the 7th national assembly, through the constitution of the federal republic of nigeria (fourth alteration) bill 2015. prior to the above case, the court had avoided the constitutional issues raised in the case brought by the 36 state governments against the federal government of nigeria over the latter’s unilateral operation of the excess crude the nigerian supreme court and the political question doctrine <http://nationalmirroronline.net/new/fg-drags-nass-to-supreme-court/ the denning law journal 131 the court and institutional deference institutional deference is a principle in judicial decision making which allows the courts to apply lower level scrutiny in the judicial review process.55 this is in contradistinction with the doctrine of separation of powers which ensures that courts ‘respect the role of the executive and legislature in formulating policy’.56 while the doctrine of institutional deference ‘allows for an examination of the reasons which underpin a court’s deferential approach in choosing a lower standard of review’57 the separation of powers doctrine recognises that the courts have no role in shaping the political process. in nigeria, in the period immediately after independence, the judicial attitude of the courts and judges, in cases involving political questions, was highly reflective of the institutional deference principle rather than the separation of powers doctrine. this can largely be attributed to the colonial heritage of the nigerian judiciary, which accepted the preeminent role of the political branches in the political process. therefore, in the interpretation of the constitution and statutes, the court mostly shied away from making decisions that would suggest its participation in the political process under the cover of judicial review. while in some cases, the court did not openly acknowledge its deference to the political branches, in other cases, however, the court made it clear that it was unprepared to engage the political questions involved in such cases in deference to the legislative or executive branches. in akintola v aderemi,58 for example, a case which arose out of a political crisis in the western region of nigeria (as it then was) and which resulted in the removal of the premier by the governor, the federal supreme court held that in a democracy institutions are required to imbue a spirit of tolerance, compromise and restraint. the court acknowledged that under a parliamentary democracy, which was the system of government practiced in nigeria at the time, if a premier realised that he and his government no longer commanded the support of a majority in the house of assembly, the premier ought to resign or call for the dissolution of the parliament and the conduct of a fresh election. the court went on to hold that ‘[i]f a premier were to go on, although he knew that he did not account (eca), the withdrawal of usd 1 billion from the eca and the establishment and funding of the nigerian sovereign wealth fund (swf) in 2011. 55 k mclean, constitutional deference, courts and socio-economic rights in south africa (pretoria university law press 2009) 61. 56 ibid., 62. 57 ibid. 58 [1962] 1 all nlr 442. 132 command a majority he would be departing from democratic principle of majority rule which pervades the constitution’, and such a situation would demonstrate nonconformity with public opinion, as well as the ideals contemplated by the framers of the constitution.59 regrettably, despite this clear finding which was based on the existing constitutional order, the court went on to declare the removal of the premier of the western region by the governor null and void on the ground that the governor’s acceptance that the premier no longer commanded the majority support in the western region house of assembly was a matter that could only be determined on the floor of the house and not otherwise. it should be observed that the court, in this case, gave greater credence to procedural value over the substantive legitimising value of the case. it is not surprising that the court’s decision was reversed by the privy council which agreed with the legal analysis adopted in the dissenting judgement of fj brett, which was based on a strict legal position of the case. in williams v majekodunmi,60 the attitude of the federal supreme court was based, it would appear, on the court’s deference to the legislative branch, rather than the dictates of the law. in this case, the plaintiff challenged the validity of the state of emergency which was declared in the western region of nigeria pursuant to the emergency powers act of 1961. the court was, therefore, invited to consider, among other things, whether the federal parliament had validly exercised its powers under the 1960 constitution. in the view of the court, the existence of a state of public emergency in the country is a political issue and ‘a matter within the bounds of parliament and not one for this court to decide’.61 according to the court, ‘once that state of emergency is declared[,] it would seem that according to the constitution, it is the duty of the government to look after the peace and security of the state and it will require a very strong case against it for the court to act’.62 the court therefore declined to determine the constitutionality of the exercise of the emergency powers in deference to parliament. in a remarkable fashion, instead of inquiring into the validity of the exercise of the power to declare a state of emergency, the court chose to focus on and address the aftermath (the effect) of the exercise of emergency powers. similarly, in attorney-general, eastern nigeria v attorney-general, federation,63 the court held that it is essentially a political matter to decide what 59 ibid. 60 [1962] 1 all nlr 324. 61 ibid., 330. 62 ibid. 63 [1964] 1 all nlr 224. the nigerian supreme court and the political question doctrine the denning law journal 133 margin of error is acceptable in a census. consequently, the court held that in the circumstance of the case, it was not competent to adjudicate on the matter64 and refused to make the declaration that was sought by the plaintiff, namely to invalidate the results of the census exercise. also, in lakanmi v attorney-general, western nigeria,65 the court, in essence, recognised a military government as a constitutional government, inferring that the military take-over of government in january 1966 was a voluntary hand-over of power by the executive branch of the civil government to the military. this appears to have been a pragmatic decision on the part of the court, considering the despotic nature of many military governments. it is also possible that the court’s decision was a deliberate attempt to defer to the action of the executive to voluntarily effect a change of government by handing over power to the military. in awolowo v shagari,66 the court restated that judges are not required ‘to apply their opinions of sound policy so as to modify the plain meaning of statutory words’.67 therefore, in deference to the framers of section 34a (c)(ii) of electoral decree no. 73 of 1977 which came up for interpretation, the court held that the ‘federal military government must be deemed to know that two-thirds of 19 states will be 122/3 states’.68 this was in spite of the court’s acceptance that the issue at the core of the case involved the interpretation of law, a function which the court was required to undertake, as it succinctly noted: ‘with the minimum of direction from the legislature as to how it should set about this task’.69 in onuoha v okafor,70 both parties contested for their political party’s, nomination for a senatorial seat and the plaintiff was chosen by the party, nigerian peoples party (npp). the defendant petitioned the party against the plaintiff and a panel set up to consider the petition choose the defendant and dropped the plaintiff based on the petition. the plaintiff instituted a law suit to compel the npp to nominate and sponsor him for election for the senatorial seat instead of the defendant. in its decision, the court held that it lacked the jurisdiction to entertain the matter because under the 1979 constitution, nomination and sponsorship of a candidate is a political matter solely within the discretion of a political party. the court further held that, under the 1979 constitution and the electoral act, the right to canvass for votes lies with political parties, and implicit in the right to 64 ibid., 231. 65 [1971] all nlr (pt ii) 201. 66 [1979] all nlr 120. 67 ibid., 140 (simon, lc). 68 ibid., 141. 69 ibid., 139 (fatayi-williams, cjn). 70 onuoha v okafor (n 10). 134 canvass for votes is the right to sponsor or not to sponsor a candidate for election. thus, the court refused to confirm the plaintiff (now respondent) as the candidate of the npp, as to do so would, in the words of the court, ‘instantly project or propel the court into the area of jurisdiction to run and manage political parties’.71 in a rhetorical manner, the court held: can the court decide which of the two candidates can best represent the political interest of the npp? in all honesty, […] the court will in so doing be deciding a political question which it is ill-fitted to do.72 it is surprising that the court failed to make recourse to a constitutional provision which appears to have contemplated the conferment of unlimited powers on the court to engage in judicial review of all matters between persons or between government or governmental authority and any person in nigeria for the determination of any question as to civil rights and obligations.73 this constitutional principle was restated in alegbe v oloyo,74 wherein the court held that, in nigeria, when a superior court is called upon to interpret or apply any provision of the constitution or the constitution of any organisation with respect to the civil rights and obligations of its members, the court is not dealing with a political question even if the subject matter of the dispute has political implications, as the court is merely performing its function under the constitution.75 the preceding analysis illustrates the court’s deference to the political departments with regard to cases involving political questions. although these decisions were legally binding, they appeared to lack the standard of legitimacy required of courts. while legality pertains to validity of the decisions (which is a function of law), legitimacy entails the acceptability of the outcome (which is a function of the conscious or deliberate effort towards the satisfaction of economic, social or political aspiration of society).76 this means the fact that a decision of a court is legal does not make it right and acceptable to society. even so, in all the cases examined above, the legislature did not take steps to reverse, modify or avoid the decisions of the court. the situation is different under the fourth 71 ibid., 501. 72 ibid. 73 constitution of the federal republic of nigeria 1979, s 6(6)(b). 74 [1983] nscc 315. 75 ibid., 341–342 (fatayi-williams, cjn). 76 n udombana, ‘constitutional restructuring and fiscal federalism’ (a paper presented at the dinner lecture organised by godswill akpabio law house in collaboration with akwa ibom north-west lawyers’ coalition, uyo, 23 december 2017) 6. the nigerian supreme court and the political question doctrine the denning law journal 135 republic, as the national assembly has used appropriate legislative measures to reverse and avoid decisions of the court in some cases involving political questions. a case in point is the decision in attorney-general, federation v attorneygeneral, abia state & 35 ors (oil resource allocation cases)77 with respect to the boundaries of the littoral states which was reversed and its effect avoided by the allocation of revenue (abolition of dichotomy in the application of the principle of derivation) act, which provides that: [a]s from the commencement of this act, the two hundred metre water depth isobath contiguous to a state of the federation shall be deemed to be part of that state for the purposes of computing the revenue accruing to the federation account from the state pursuant to the provisions of the constitution of the federal republic of nigeria, 1999 or any other enactment.78 also, section 141 of the electoral act 2010 appears to reverse the outcome in amaechi v inec,79 to the extent that ‘[a]n election tribunal or court shall not under any circumstances declare any person a winner at an election in which such a person has not fully participated in all the stages of the said election’.80 the court and the notion of necessity in attorney-general bendel state v attorney-general, federation & 22 ors,81 the court applied the principle of unlimited powers of judicial review under the 1979 constitution. in this case, the court disregarded the provision of section 2 of the acts authentication act which established a presumption of regularity and validity to acts passed by the national assembly on the grounds of the existential necessity to protect the constitution from being derogated82 and the need to promote public interest.83 the court distinguished the present case from the census case, which it believed to be a special case considering the overall powers of the court under the 1963 constitution vis-a-vis the 1979 constitution.84 77 (no 1) [2001] all nlr 12; (no 2) [2002] all nlr 72. 78 cap a27 lfn 2004, s 1(1). 79 [2007] 1 all nlr 354. 80 no 6 of 2010, s 141 [emphases added]. 81 [1981] all nlr 85. 82 ibid., 110, 133 (fatayi-williams, cjn). 83 ibid., 136 (bello, jsc). 84 ibid., 149, 155 (idigbe jsc). 136 in the oil resource allocation case, the court demonstrated its unlimited power of judicial review. in response to preliminary objections that the determination of the seaward boundary of a littoral state within nigeria constituted, among others, a political question which should be determined by the legislature,85 the court held that by the provisions of sections 6(1), (6) and 232(1) of the cfrn 1999, it has jurisdiction to interpret all provisions of the constitution whether on appeal or in exercise of its original jurisdiction.86 however, only one dissenting judgement acknowledged that the case was within the political question doctrine.87 and according to an amicus curiae in the case: [t]he seaward boundary of a littoral state is a matter that has been settled by international law, especially the geneva convention on the territorial sea 1958, and the third united nations convention on the law of the sea, and [therefore] not a matter for determination by municipal courts.88 in its decision on 5 april 2002, the court held that the boundary of the littoral defendant states is the low water mark of the seabed and not the continental shelf. it is important to note that in 2001 when the federal government instituted the law suit, the allocation of revenue decree no. 106 of 1992, which ended the dichotomy between on-shore and off-shore oil mineral for the purpose of sharing oil revenues in nigeria, was an existing law.89 this is because when the cfrn 1999 came into force, the legislation was not repealed. in ibidapo v lufthansa airlines,90 the court held that a law did not cease to have effect and validity as an existing law in nigeria simply because it was omitted in the course of the compilation of the laws of the federation. accordingly, it held that where there is intent ‘to repeal legislation, this should be expressly so stated as the courts generally lean against implying the repeal of an existing legislation unless there exist clear proof to the contrary’.91 the implication is that an omission of a law or the presumption of repeal of a law is not tantamount to its repeal. as such, an omitted law or a law presumed to have been repealed 85 oil resource allocation case (no 1) (n 79) 137–138. 86 ibid., 134, 141 (uwais, cjn). 87 ibid., 174, 192–193 (karibi-whyte, jsc). 88 e osieke, ‘case between the federal government and 36 states on the issue of derivation – suit no sc/28/2001’ (amicus curiae comments) 4. 89 cfrn 1999, s 315(1)(a),(b). 90 [1997–98] all nlr 88. 91 ibid., 123 (iguh, jsc). the nigerian supreme court and the political question doctrine the denning law journal 137 when in fact it was not, would continue to have the same force of validity and applicability as if it had not been omitted or presumed to have been repealed.92 therefore, it is curious that the court entertained the case in the first place when it was obvious that it would be impolitic or inexpedient to do so,93 even to the extent of relying on the colonial orders-in-council, common law principles, as well as foreign cases in order to determine the boundary of the littoral states, whereas both the 1960 and 1963 constitutions had provisions which deemed the continental shelf as the boundary of the southern regions for the purpose of revenue allocation.94 it is submitted that besides involving a political question, the case was hypothetical in nature95 and akin to asking the court for its advisory opinion – a practice that is not known to nigerian law.96 it is further submitted that the court should have relied on the provisions of sections 134(6) and 140(6) of the 1960 and 1963 constitutions, respectively. this is because both constitutions contain express provisions which deem the continental shelf as boundary of southern nigeria for the purpose of revenue allocation and the definition of the seaward boundary of the littoral states had, at the time, not been expressly or impliedly repealed by the 1979 and 1999 constitutions which make no reference to the issue. it is instructive to note that in garnett v bradley,97 the house of lords stated an important rule of common sense which suggests that when a new enactment is couched in a manner that the previous law can well stand with it because there is nothing to suggest that the old law has been repealed, and there is no necessity to indicate a contradiction between the two enactments, the old law should remain valid.98 with great respect to the court, it should not have entertained the case or in the alternative, it should have applied this rule of common sense. for, the true test of the rule is in the ‘just application of its conformity to’99 the social reality rather than yield to the political necessity to restate the federal government’s dominant position in nigeria’s federal practice using comparative 92 revised edition (laws of the federation of nigeria) act 2007, s 2. 93 nwauche (n 17) 59. 94 it should be noted littoral states are bona fide successors in title to the former southern regions of nigeria. 95 saliu v state [1984] 10 sc 104, 113; awoshima v state [2011] 6–7 sc (pt iii) 1, 38. 96 osieke (n 90) 3. 97 [1878] 3 ac 944. 98 ibid., 966 (lord blackburn). 99 a hamilton, ‘the federalist 83’ in l goldman (ed), alexander hamilton, james madison, and john jay: the federalist papers (new york, oup 2008) 406. 138 constitutional analysis.100 the implication of the principle in garnett with respect to the oil resource allocation case, is that in so far as the definition of the seaward boundary of southern nigeria (as it then was) under the 1960 and 1963 constitutions is not expressly or impliedly repealed by the cfrn 1999, and there is no provision in the cfrn 1999 on the boundary of the littoral states which conflicts with the definition of the seaward boundary of the former southern regions of nigeria under the 1960 and 1963 constitutions, the provisions in the latter constitutions remain valid and applicable for determining the boundary of the littoral states for the purpose of calculating the amount of revenue accruing to the federation account from oil derived from off-shore in favour of the littoral states.101 the amaechi case is another good example of the court’s inconsistency towards the political question doctrine. the facts of the case are that rotimi amaechi contested the primary election of the peoples democratic party (pdp) for nomination as the governorship candidate of the party and scored the highest votes. the pdp (third respondent) thereafter substituted him for celestine omehia (second respondent) who did not participate in the nomination process. consequently, amaechi instituted a law suit at the federal high court, abuja against the independent national electoral commission (inec) (first respondent), omehia and the pdp. amaechi lost at both the court of first instance and the court of appeal, hence his further appeal to the court. it should be noted that the facts in the amaechi case are similar to those in the onuoha case. in its decision, the court set aside the substitution of amaechi by the pdp on the ground that it was illegal, as no ‘cogent and verifiable reasons’ were given as required under the electoral act 2006.102 in onuoha, the court decided that it was impolitic and inexpedient to take jurisdiction because it felt that the exercise of judicial power was inappropriate, but in ameachi the court not only exercised its power of judicial review, it ordered omehia to vacate the office of governor of rivers state and in its consequential orders directed that amaechi be sworn in as the governor on the ground that he was deemed to have won the election. this decision 100 b silverman, ‘the legitimacy of comparative constitutional law: a modal evaluation’ (2016) 24(2) michigan state international law review 315–345, 353–354. 101 e egede, ‘who owns the nigerian offshore seabed: federal or states? an examination of attorney general of federation v attorney general of abia state & 35 ors case’ (2005) 49(1) journal of african law 75, 86. 102 electoral act 2006, cap e6 lfn 2004, s 34(2). the nigerian supreme court and the political question doctrine the denning law journal 139 understandably attracted serious criticisms by lawyers and non-lawyers alike.103 in justifying the court’s meddling in an issue involving a political question, the court noted that since: the name of amaechi was not substituted as provided by law, the consequence is that he was the candidate of the pdp for whom the party campaigned in the april 2007 elections not omehia and since pdp was declared to have won the said elections, amaechi must be deemed the candidate that won the election for the pdp.104 a justification such as the one given above was obviously problematic. it undoubtedly reinforces the view that hard cases make bad law which is bound to leave ‘a sour taste in the mouth’.105 thus, to arrive at its decision, the court chose to amplify the constitutional issue of the fundamental right of amaechi,106 which, according to the court, deserves to be determined conclusively and with finality in favour of the appellant.107 equally important is the fact that the court felt the necessity to send a strong warning to the political class and political parties. according to the court, ‘[t]he vicious acts of the dramatis personae in this case that have led to this unfortunate and time-wasting court case must not be allowed to repeat themselves. no decent and polished characters can be credited with such vicious acts’.108 instructively, the decision of the court suggests a response necessitated by a growing and widespread impunity in the pdp, as was evident in other cases previously adjudicated by the court.109 103 f falana, ‘the rule of law or the rule of the law: epoch decisions of the supreme court of nigeria under review’ (being a paper presented at the annual general conference of the nigerian bar association, international conference centre, abuja, 27 august 2008) 8. 104 amaechi (n 81) 408 (oguntade, jsc). 105 ibid., 517 [i] (aderemi, jsc). 106 ibid., 395 [h]–[i]. 107 ibid., 399 [g]–[i]; ibid., 517 [d]–[f]. 108 ibid., 521[f]–[g] (aderemi, jsc). 109 ugwu v ararume [2007] 12 nwlr (pt 1048) 367; inakoju v adeleke [2007] all nlr 65. this also appears to have necessitated the decision of the court in all progressive congress v marafa & ors (unreported sc/377/2019, delivered on 24 may 2019) which renders the victory of all the candidates of the apc party in the 2019 general election in zamfara state a nullity. 140 the court and avoidance of constitutional adjudication when courts decline jurisdiction to entertain constitutional questions brought for their determination, a major reason for their action is that such issues are within the realm of the political branches. however, this approach is sometimes founded on the notion of constitutional avoidance.110 the notion of constitutional avoidance seeks to prevent the courts from becoming entangled in unnecessary controversies, which may arise in the exercise of their power of judicial review, over constitutional issues involving political questions. for this to be possible, courts are advised to acquire passive virtues and be inclined to return constitutional problems involving political questions to the political realm for resolution.111 however, it may be argued that by avoiding constitutional problems with political questions and remaining passive, courts might be abdicating their role of judicial review and that the notion of constitutional avoidance, in its original conception, was to be applied only to minor constitutional problems.112 in nigeria, the court under review has avoided major constitutional cases with political questions on two instances. first, the court avoided to adjudicate on constitutional disputes instituted by the 36 state governments against the federal government in 2008 and 2011 over the latter’s unilateral operation of the excess crude account (eca) and alleged illegal withdrawal of usd 1 billion from the eca to fund the nigerian sovereign wealth fund (swf) respectively, in breach of the provision of section 162(3) of the cfrn 1999. in spite of the legal controversy surrounding the federal government’s operation of the eca (an important constitutional issue), the court has not deemed it necessary to make a judicial decision on the cases before it.113 secondly, in attorney-general, federation v national assembly (constitution amendment case),114 which pertained to the 110 l kloppenberg, ‘avoiding constitutional questions’ (1994) 35(5) boston college law review 1003. 111 a bickel, the least dangerous branch: the supreme court at the bar of politics (2nd edn, yale university press 1986) ch 4. 112 kloppenberg (n 112) 1016–1017. 113 the federal government’s decision, in april 2018, to withdraw another usd 1 billion for the purchase of military hard wares sparked off another round of controversy as to the constitutionality of maintaining the eca. in fact, this issue has further raised the question of how funds in the eca should be appropriated. see o ogunmade and d oyedele, ‘after senate rumble, presidency says buhari yet to authorise $1bn withdrawal from eca’ this day (lagos, 10 april 2018) 1, 6. 114 [april 2015] unreported, suit no sc/214/2015. the nigerian supreme court and the political question doctrine the denning law journal 141 constitutional issue of constitutional alteration or amendment, the federal government sued the national assembly for, as it claimed, unconstitutionally amending the constitution pursuant to the latter’s powers in section 9(1) & (2) of the cfrn 1999. the alteration or amendment sought to, among other things, (i) alter the constitutional practice of presidential assent to bills passed by the national assembly in respect of alteration or amendment to the constitution,115 (ii) alter the extent of presidential power in respect of assent of ordinary bills,116 and (iii) alter executive powers of the president to appoint persons to certain public offices established under the cfrn 1999.117 the court avoided to adjudicate on the disputed constitutional amendment fourth alteration bill 2015, and instead returned the case to the legislative and executive branches for political resolution of the issues raised in the case. it merely observed that it is the president, and not the attorney-general, who ought to have been the plaintiff in the suit because he decided to exercise his constitutional power not to assent to the bill.118 apex courts and political question: a comparative reflection there appears to be a consensus on the notion that courts are guardians of any genuine democratic enterprise.119 the only point of divergence, it would seem, is the extent of the courts’ guardianship of constitutional democracy, in view of the fact that legislative and constitutional provisions which empower the courts in this regard range ‘from the relatively specific to the extremely open-textured’.120 this situation creates room for contending models on how courts in a constitutional democracy should deal with political questions. according to john ely, this is the basis for the debate between the proponents of interpretivist and non-interpretivist models.121 while the former holds that courts deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the constitution, the latter is of the notion that courts should go beyond the provisions 115 constitution of the federal republic of nigeria (fourth alteration) bill 2015, s 4, which sought to amend s 9 of the cfrn 1999 by adding a new ss 3a to s 9. 116 ibid., s 14, which sought to amend s 58 of the cfrn 1999 by adding a new ss 5a to s 58. 117 ibid., s 23, which sought to amend the cfrn 1999 by adding new s 84a–84f. 118 solomon (n 36) 267–268. 119 j ely, democracy and distrust: a theory of judicial review (harvard university press 1980) 73. 120 ibid., 13. 121 ibid., 1. 142 of the constitution to make judicial pronouncements on norms that cannot be discovered within the confines of the legal document under review.122 this leaves constitutional theorists in a quagmire, as the former approach is characterised by analyses that are incapable of keeping faith with the spirit of written constitutions, while the latter approach simply ends up constituting constitutional courts as legislative bodies.123 interestingly, both conceptions appear to have left out in their arguments the interests of the parties (which are in some cases the citizens) whose expectations trigger the process of judicial review. this requires a broadened perspective which makes it imperative to establish a balance among the different branches of government.124 therefore, when evaluating the legitimacy of the approach adopted by courts to political questions, it seems important to also consider the rationale and the justification for the action as understood by parties who are supposed to benefit from the outcome. yet, as earlier noted, in a constitutional democracy, the normative political view is that elected officials are solely responsible for issues constitutionally assigned to the political department. however, the crucial role of the courts in shaping such issues is undeniable (especially the apex courts, irrespective of the nomenclatures that are used to describe them).125 this practice has given rise to what has been described as the counter-majoritarian difficulty.126 in response, it has been argued that the notion of counter-majoritarian difficulty is an exaggeration, because courts’ participation in the policy-making process is quite negligible.127 in germany, for example, where there exists a purely political mechanism in the selection of the justices of the federal constitutional court,128 there is acceptance that the german basic law (grundgesetz) is the interpretation given by the federal constitutional court.129 in this regard, donald kommers asserts that: [m]ost scholars and legal professionals accept the court as a legitimate participant in the larger community decision-making process, [for which] 122 ibid.; see also barak (n 33) 56–62. 123 ibid., 73. 124 lafont (n 27) 268. 125 m bckenforde and others, judicial review systems in west africa: a comparative analysis (international institute for democracy and electoral assistance and hanns siedel foundation 2016) 20–21. 126 bickel (n 113) 16–17. 127 a vermeule, ‘system effects and the constitution’ (november 2009) 123(1) harvard law review 6, 38. 128 kommers (n 28) 173. 129 ibid., 212 (citing smend). the nigerian supreme court and the political question doctrine the denning law journal 143 germans realise that the court walks a tight rope between law and politics, and the justices themselves are acutely aware of their political influence.130 this practice explains why a former president of the german federal constitutional court noted that: [i]ntellectual honesty compels us to state that there is no usable catalogue of criteria that could serve as signpost in the ridge-walking between law and politics. the two fields of action partly overlap, and cannot unambiguously be separated from each other. as the constitutional review body, the court has a share in politics.131 the above practice is also applicable in india where the supreme court is acknowledged as a political institution,132 and its engagement in ‘astute political craftsmanship’ is very well reckoned with.133 the same might be said of the south african constitutional court, which origin is rooted in post-apartheid politics, with its mode of selection of its justices akin to the practice in germany.134 the us supreme court has equally been described as a judicial institution with a mixture of political and policy-making functions.135 in nigeria, by virtue of the structure of the constitution (with the separation of governmental powers as one of its core principles), it would appear the court is not empowered to attribute finality to a legitimate action or inaction which belongs in the political realm, as the mechanism for constituting the court makes it incapable of proffering enduring answers to political questions. also, the court lacks the experience and facility to engage in the function of legislating. yet, it is practically impossible for the court to be completely insulated from such activity because of its role as guardian of the constitution.136 130 kommers (n 28) 212–213. 131 j limbach, ‘the law-making power of the legislature and the judicial review’ in b markesinis (ed), law making, law finding and law shaping: the diverse influences (oup 1997) 174. 132 s sathe, ‘india: from positivism to structuralism’ in j goldsworthy (ed), interpreting constitutions: a comparative study (oup 2006) 261–263. 133 chandrachud (n 46) 152. 134 h klug, ‘south africa: from constitutional promise to social transformation’ in j goldsworthy (ed), interpreting constitutions: a comparative study (oup 2006) 282–285. 135 r mccloskey, the american supreme court (university of chicago press 1960) 20. 136 a nnamani, ‘the judiciary in the 1990s: expectation and challenges’ (1990) 1(3) justice: a journal of contemporary legal problems 27. 144 concluding remarks from the analysis thus far, it has been shown that the supreme court of nigeria exercises considerable power and control over issues which ordinarily belong in the political department, in the course of defining the legal rights and obligations of parties before it. in inakoju v adeleke,137 the court was of the view that ‘[t]he political question doctrine is still in its embryonic stage in nigeria. let us not push it too had to avoid the possibility of a still-birth. that will be bad both for nigerian litigants and the legal system’.138 perhaps, this explains the court’s restraint in some cases and why it ignores the age-long norm that courts should not legislate from the bench in others. by not exercising judicial self-restraint in matters which involve political questions, the court follows in the path of its counterparts in other jurisdictions such as germany, india, south africa and the united states in walking a thin line between law and politics. more so, by entering the unfamiliar political department, the court is more likely to over step the bounds of its judicial powers. there is also a tendency for the court to arm itself with the arguments that the cases brought before it involve questions of law and facts;139 that the political question doctrine does not justify the total and absolute preclusion of judicial review, as it would be resisted as a basis of lack of judicial review;140 and that there is a distinction between the process of adjudication, which is a non-political activity, and the effects of its decisions, which may sometimes be regarded as political.141 while adjudication is about finding the law, politics is, by contrast, an activity which involves making the law.142 however, because ‘constitutional adjudication [is] an inevitable political practice everywhere it occurs, there is one thing and one thing only that conscientious judges should do, and that is to openly declare the politicality of their decision-making practices’.143 in nigeria, this has become imperative in view of the notion that under the exiting constitutional order the court is deliberately meant and made to be a super court to the extent of its decisions,144 especially in the context where cases involving political questions constitute veritable and potential land mines. this is because, in nigeria, politics 137 [2007] all nlr 65. 138 ibid., 85, 117 (tobi, jsc). 139 oil resource allocation case (no 1) (n 79) 147. 140 inakoju (n 111) 179, 183 (musdapher, jsc). 141 kommers (n 28) 213. 142 limbach (n 133) 161. 143 roux (n 35) 279. 144 adigun (n 7) 344. the nigerian supreme court and the political question doctrine the denning law journal 145 appears not to be a tool for nation building and is yet to develop beyond the struggle by political actors to acquire political and economic power for self-aggrandisement. this is evident in the rampaging political arrogance145 that may not be unconnected with the cultural factor which conceives power ‘as being personal, permanent, mystical and pervasive’.146 to this end, in cases involving political questions, the court must aim at making decisions which represent reasoned agreement in society.147 otherwise, such decisions should be reversed, modified or avoided by a new law. 145 w soyinka, interventions (vol 1, bookcraft 2010) 239; c achebe, the trouble with nigeria (heinemann educational publishers) 9. 146 b nwabueze, constitutional democracy in africa: constitutionalism, authoritarianism and statism (spectrum books) 272–273. 147 tremblay (n 3) 632. 167 the denning law journal 2018 vol 30 pp 167-183 case commentary ofsted v al-hijrah, the case of segregated schools and sex discrimination rajnaara akhtar 1 case summary this case of hm chief inspector of education, children’s services and skills v the interim executive board of al-hijrah school1 was the unfortunate outcome of an office for standards in education, children’s services and skills (ofsted) inspection which resulted in a cataclysmic breakdown in trust between the government agency and the birmingham city based al-hijrah school. following an ofsted inspection carried out under section 5 of the education act 2005, the subsequent report stated that the full segregation of female and male pupils in a mixed-sex school amounted to sex discrimination under the equality act 2010. al-hijrah school applied to the high court for a judicial review of the report prior to its official publication. the high court justice considered a range of evidences including facts related to ofsted procedure, and ruled that the segregation did not amount to a breach of the 2010 act, as when taken as a group, the treatment of the boys and the girls was the same and so there was an absence of “less favourable treatment”. this decision was reversed by the court of appeal who stated that the high court’s approach to the question was incorrect and it was individual claimants’ rights which were to be construed, not that of the entire group of girls and the entire group of boys. thus, the court must have regard to each individual pupil as separate from the group and comparator. so the question becomes whether the individual girl pupil was treated less favourably than a boy pupil as the boy pupil had the benefit of engaging with his boy peers while the girl pupil did not. similarly, the boy pupil did not have the benefit of engaging with other girl pupils in the same way as  senior lecturer, school of business and law, de montfort university, leicester. email: rajnaara.akhtar@dmu.ac.uk 1 [2017] ewca civ 1426, on appeal from [2016] ewhc 2813. herein after referred to as ofsted v al-hijrah. mailto:rajnaara.akhtar@dmu.ac.uk comment 168 a girl pupil did. this discrimination was based on the protected characteristic of sex and was held to breach section 85(2) of the equality act 2010. ofsted stated that the segregation impacted on the children’s education and development as both boys and girls lost the opportunity to socialise, interact and learn from engagement with the opposite sex. ofsted further cited “british values” and the preparedness of these children for life in modern britain. ofsted additionally argued that the female students faced particular disadvantage as a result of the segregation, but this was rejected. a final appeal by the association of muslim schools to be added to the action following the appeal judgment was rejected, thereby preventing an appeal to the supreme court. keywords: direct discrimination; gender; less favourable treatment; ofsted; protected characteristics; segregation; sex discrimination 2 case history ofsted carried out a section 5 inspection in 2016 and reported alhijrah school to be inadequate on three specific grounds: (i) effectiveness of leadership and management, (ii) the personal development, behaviour and welfare of pupils, and (iii) early years provision.2 the lack of “effectiveness of leadership and management” was due to a number of issues including “the failure to have due regard to the duty to achieve equality of opportunity as required by s.149 of the 2010 act; and ineffective arrangements for safeguarding.”3 the issue of segregation of pupils was raised as a core concern, with the ofsted report stating that segregation “limits pupils’ social development, and the extent to which they are prepared for interaction with the opposite sex when they leave school.” 4 in response to the school’s claims of religious motivation, ofsted was of the view that the school had no policies to actively mitigate the “potentially negative impact of this practice on pupils’ chances to develop into socially confident individuals with peers from the opposite gender.”5 al-hijrah school applied for judicial review of ofsted’s inspection report, and the high court ruled that strict gender segregation between 2 ofsted v al-hijrah [18]. 3 ibid [19]. 4 ibid [20]. 5 ibid. the denning law journal 169 boys and girls aged 9-16 did not amount to unlawful discrimination contrary to the provisions of the equalities act 2010. the key issues for judicial review related to the following: whether the denial to both sexes of the opportunity to interact, socialise and learn with, or from, the opposite sex amounted to “less favourable treatment” for the purposes of the equality act 2010 s.13(1) read in conjunction with s.23(1); and secondly, whether the segregation was because girls were regarded as inferior to boys.6 mr justice jay’s judicial review treated the boys and girls at the school as two distinct groups, and in applying the provisions of the equalities act 2010, the treatment of both of these groups was compared. the justice concluded that it could not be said that one group was being treated less favourably than the other giving rise to unfair advantage and therefore discrimination. in fact, both groups were being treated the same. further, on the issue of a particular detriment to girls, the high court rejected ofsted’s argument that there was a particular and greater detriment suffered by girls due to the women being a group with “a minority of power” in society and the idea that segregation of girls “cannot be separated from deep-seated cultural and historical perspectives as to the inferiority of the female sex.”7 these were rejected on the basis that there is no evidence to support the assertion that segregation in a mixed school in fact has a greater impact on female pupils.8 this raises an interesting issue which underlies the entire premise of the arguments being put forward by ofsted – the question of evidence of the detriment being suffered. “ofsted’s view was that this restriction on freedom of a girl pupil to mix or socialise with boy pupils and on a boy pupil to mix and socialise with girl pupils was detrimental to their education.”9 yet this detriment was probed by the high court, but not a focus for the court of appeal. the court of appeal stated that ofsted is entitled to reach a finding that segregation has an adverse impact on the quality and effectiveness of the girls’ and boys’ education.10 ofsted appealed the high court’s judgment on five grounds, namely the loss of opportunity for girls and boys to choose to learn and socialise with each other, the loss of opportunity of both boys and girls to socialise 6 interim executive board of x school v her majesty's chief inspector of education, children's services and skills [2016] ewhc 2813 (admin). 7 ofsted v al-hijrah [36]. 8 ibid [37]. 9 ibid [45]. 10 ibid [67]. comment 170 with each other in preparation for work and other contexts upon leaving school, a perceived particular detriment to girls which outweigh that to boys because of a perceived “minority of power” for women, and finally that segregation implies girls are inferior.11 the court of appeal held unanimously that segregation of girl and boy pupils constituted direct discrimination and therefore breached s.13 or s.85 of the equality act 2010. in this case, both the girl and boy pupils lost out on the opportunity to socialise, interact and learn from members of the opposite sex. the approach to ascertaining less favourable treatment involved consideration of the individual pupil and each individual pupil faced less favourable treatment when compared to a pupil of the opposite sex. thus, a girl pupil was held to be treated less favourably than the boy pupil and the boy pupil was treated less favourably than the girl pupil; both on the basis of their sex which is a protected characteristic under s.4 of the equality act. thus, this breached s.85(2) of the equality act. ofsted was therefore right to conclude that strict gender segregation resulted in a breach of all of the pupils’ rights. in overruling the high court, the justices held that the starting point for ascertaining direct discrimination under s.13 of the equality act is a “person” not a group. an individual girl pupil could not socialise and engage with a boy pupil because, and only because, of her sex, and vice versa for an individual boy pupil. thus, each would be treated differently if they were of the opposite sex. thus, a girl pupil would have the benefit of engaging with boy pupils if she were a boy and the only reason she could not in this case was because she was a girl. therefore, even if both the girls and the boys were treated the same, it could still give rise to unlawful discrimination. consequently, separate but equal treatment can still be discriminatory.12 the detriment suffered was deemed to diminish the quality of the pupils’ education.13 ofsted’s arguments that the segregation in some way reinforced ideas of female inferiority and male superiority in social and employment contexts were held to be unfounded, 2 to 1, with gloster lj dissenting. 14 11 ibid [39]. 12 ibid [50]-[58]. 13 ibid [78]-[80]. 14 ibid [107]-[110], [114]-[116]. the denning law journal 171 3 al-hijrah school’s segregation policy the birmingham based al-hijrah school is a mixed-sex school operating an islamic ethos and voluntary aided by the local authority. its pupils are aged 4 -16, and in line with particular religious beliefs, it operated a complete segregation policy between its female and male pupils aged 9-16. the segregation remained in place for the entirety of the school day including lessons, breaks, clubs and trips. the underlying reasons given for the segregation were religious values. the court of appeal rejected this as an adequate defence or justification. the reason for the segregation was held to be irrelevant.15 4 applying the equality act 2010 this case raises some significant questions regarding the application of the provisions of section 13 and section 85 of the equality act 2010 to the charge of sex discrimination at segregated schools. the case centred on the question of whether there is direct discrimination where a mixedsex school completely segregates boys and girls over a certain age, for all school related activities,16 on the basis that this policy produces “adverse educational consequences.”17 another key feature of this case is the court of appeal’s judgment that ascertaining discrimination from the perspective of each potential individual claimant was said to be the correct approach to interpreting the legislative provisions. the equality act protects individuals from discrimination where the discrimination is because of a protected characteristic. s.4 lists the following protected characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. the focus of these proceedings was discrimination on the grounds of sex. section 11 describes the characteristic of sex as either a man or a woman. section 212(1) further clarifies that the individuals can be of any age, thereby including children. the use of the term sex instead of gender specifies the biological nature of distinction.18 15 ibid [81]. 16 ibid [1]. 17 ibid [2]. 18 bob hepple, equality, the legal framework (2nd ed, hart publishing, oxford and portland, oregon 2014) 57. comment 172 s.85 governs non-discrimination in the admission and treatment of pupils to schools. this includes a responsibility under s.85(2) to refrain from discrimination in the way it provides education for pupils, and in the way it affords access to benefits, facilities or services. the equality act operates to cover “four civil wrongs” – direct discrimination, indirect discrimination, harassment and victimisation. 19 the present case concerned direct discrimination claims due to less favourable treatment because of a protected characteristic leading to a detriment. section13 (1) sets out that “a person (a) discriminates against another (b) if, because of a protected characteristic, a treats b less favourably than a treats or would treat others.” this is the test for direct discrimination. s.23(1) provides for a comparator, thus, the treatment of the claimant is to be compared with a comparator who does not share the claimant’s characteristic. however, “like must be compared with like”20 and the material circumstances of the claimant and the comparator must be similar.21 the outcome of the treatment need not be a tangible loss.22 a key issue for ofsted v al-hijrah was the fact that the mere deprivation of choice can result in a finding of less favourable treatment, 23 with a “detriment” being attributed to this. the freedom of parents to choose how their children are educated, as provided for under section 9 of the education act 1996 and the school standards and framework act 1998, was brought into questioned. the court of appeal held that this right does not override the rights of the children to be educated in a manner that does not breach the equality act 2010,24 and the rights enshrined therein cannot be negated by parental acquiescence. 5 [segregation] is “dumb” during the inspection, ofsted interviewed two randomly selected female pupils in year 10, and asked the pupils for their opinion on the 19 hepple (2014) 67. 20 hepple (2014) 68. 21 anna beale, ‘core rights and duties’ in john wadham, anthony robinson, david ruebain and susie uppal (eds) blackstone’s guide to the equality act 2010 (3 edn, oxford university press 2016) 31-54, 32-33. 22 chief constable of west yorkshire police v khan [2001] ukhl 48, paras 5235. 23 r v birmingham city council ex parte equal opportunities commission [1989] ac 1155. 24 ofsted v al-hijrah [82]. the denning law journal 173 school’s segregation policy. the response from these pupils seems to be an underpinning factor in the case. the inspector reported: “thinks [segregation] is ‘dumb’ because when girls go to college they will mix with boys, and at the moment she doesn’t know how to have any relationship/friendship with boys. finds that school isn’t helping her get ready. says some benefits as boys don’t always behave well.”25 ofsted further cited the opinions of year 10 boys as concurring on this point, and also highlighted the apparent unease displayed by year 7 pupils, particularly that: “students clearly felt very uncomfortable about being with opposite sex… found it difficult to answer questions.”26 this feeling of being unable to engage with the opposite sex raised concerns about how well these children were being socially prepared for “life in modern britain”. the concern about the lack of engagement with each other and the resultant disadvantage were key, although not the sole, issues giving rise to questions about the overall standard of education provided by al-hijrah.27 the court of appeal justices demonstrated a willingness to depart from the usually narrow confines of less favourable treatment within the 2010 act to take a “wide and purposive interpretation”28 of the antidiscrimination legislation. the justices expanded on the definition of discrimination as envisaged in the act and concluded that both “separate but equal” as well as “separate but different” treatment can constitute unlawful discrimination, and this broader definition enabled a finding of discrimination in this case.29 while this is to be welcomed as a general development in the application of the legislation, the interesting point to note is that the case involves a muslim faith school which practices gender segregation, during a political time period where muslim children and questions of integration and radicalisation are at the forefront of government policies. further to this, ofsted’s current chief inspector has 25 ibid [15]. 26 ibid [16]. 27 ibid [17]. 28 ibid [56]. 29 ibid [62]-[70]. comment 174 openly spoken of the idea of a “muscular liberalism” to be assumed by school leaders to overcome ideologies which “close minds or narrow opportunity”. 30 these ideological issues cannot be overlooked when assessing this case. the court of appeal noted that a key concern of ofsted was “how well leaders were preparing pupils for life in modern britain”, 31 and ofsted’s report stated that “[the school’s segregation policy] does not accord with fundamental british values and amounts to unlawful discrimination.”32 in particular, they stated that girls and boys cannot develop confident relationships with each other. such schools are to be distinguished, according to ofsted’s arguments and the court of appeal’s decision, from single sex schools which benefit from a variety of exceptions under schedule 11 of the equalities act. 33 thus, for the former, the equality act is being utilised to challenge and end the practice of segregation due to gender, while for the latter, the equality act protects against claims of discrimination where there is selected entry based on gender. it can undoubtedly be argued that both types of school can in fact produce the same outcome for the pupils where gender segregation is concerned, with the only distinguishing aspect being the religious nature of the normative influence underlying the practice. interestingly, the equality act does refer to segregation as evidencing less favourable treatment, but only in the context of race under section 13(5). this is unsurprising given the history of south african apartheid and north american race segregation. no other protected characteristic has such a specific special provision, although beale 34 states that segregation on other grounds “could amount to less favourable treatment”, however this has not been confirmed by case law. the difference in treatment of this segregated faith school from many schools across britain which are single-sex, is problematic. the court of appeal failed in this case to adequately scrutinise ofsted’s claim that “british values” were being undermined. the non-statutory school inspection handbook describes the promotion of british values as: 30 frank cranmer, ‘out-of-school education, social cohesion and ofsted’, (3 february 2018), law and religion uk <http://www.lawandreligionuk.com/2018/02/03/out-of-school-education-socialcohesion-and-ofsted/>accessed 20 april 2018 31 ofsted v al-hijrah [16]. 32 ibid [24]. 33 further, there are general exceptions under schedule 3. 34 beale (n 21) 33. http://www.lawandreligionuk.com/2018/02/03/out-of-school-education-social-cohesion-and-ofsted/ http://www.lawandreligionuk.com/2018/02/03/out-of-school-education-social-cohesion-and-ofsted/ the denning law journal 175 “acceptance and engagement with the fundamental british values of democracy, the rule of law, individual liberty and mutual respect and tolerance of those with different faiths and beliefs; they develop and demonstrate skills and attitudes that will allow them to participate fully in and contribute positively to life in modern britain.”35 while it can be argued that sex-segregation can undermine expected “attitudes” here, this is equally the case for single-sex schools with protected status. so once again, the question arises of why these two school types are being treated differently. furthermore, ofsted conceded a number of points in their report, including that the segregation of the pupils did not impact on the standard of teaching the children received nor the range of subjects available to them. the thrust of the argument was the perceived detriment suffered by the children from not engaging and interacting with members of the opposite sex. further to this, concerns were raised about pupils awareness of safeguarding issues such as forced marriages.36 however, the argument that this undermines british values seems particularly punitive. ofsted has indicated that the outcome of this case will impact on its policy towards all state funded faith schools which operate gender segregation, which means a definite impact on a number of muslim and jewish faith schools,37 as well as some christian ones.38 6 sex-segregation, single-sex schools and detriment the question of the detriment being suffered by the segregation was not scrutinised further by the court of appeal, although the issue was raised during the high court hearing.39 as stated above, the arguments for distinguishing segregated mixed schools from single gender schools, 35 school inspection handbook 2018, 40. 36 ofsted v al-hijrah [21]. 37 a bbc news report suggested that approximately a total of 20 jewish, muslim and christian schools are thought to have similar policies. this appears to be an extremely low number, however, it only includes state funded schools, not those privately funded. http://www.bbc.co.uk/news/uk-england-birmingham-41609861 (last visited 22 january 2018). 38 interim executive board of x school v her majesty's chief inspector of education, children's services and skills [2016] ewhc 2813 (admin) [11]. 39 ibid [95]. comment 176 which benefit from special exemptions under schedule 11 of the equality act, are weak. clearly, children at the latter schools suffer similar disadvantages from the lack of socialisation with members of the opposite sex. the decision in this case upheld ofsted’s argument that the deprivation of choice in mixed schools was key. but is this a mere technicality, as the outcome in both settings is the same – a lack of engagement with members of the opposite sex? the answer to this lies in what is mean by “british values” and “life in modern britain”. it is difficult not to question why ofsted would take such issue with al-hijrah when britain has a centuries old historic tradition of single-sex schools, which continue to exist in modern britain and in fact produce our political and judicial leaders to this day; a fact that lady justice gloster makes mention of in her judgment.40 indeed, all three of the esteemed court of appeal judges in this case were all educated at single-sex schools. the need to ensure boys and girls can respectfully and comfortably engage with each other is no doubt a pivotal concern in modern british society. however, this case leaps forward and establishes that removing the choice of such engagement breaches the equality act, presenting arguments which tie the highly politicised language of “british values” and “modern britain” to the issue of sex discrimination, and arguably away from the remit intended within the school inspection handbook. it is highly likely that an inspection of any number of single-sex schools would reveal boys and girls equally keen to cross the fence and engage with the other, and who believe a single sex school is “dumb” as they do not get the chance to engage with the other half of the human race. however, it is equally likely that ofsted or any school inspectorate would not ask those questions for understanding the values and traditions being upheld by these schools, and protected by the schedule 11 exemptions from section 85 provisions. it is clear that what makes alhijrah different is the religious underpinnings of the decision to segregate, and as a result it is difficult to separate some of the highly political language used in the report from the faith based nature of the school. the court of appeal did not test the assumption put forward by ofsted that the pupils are suffering a detriment, nor did they deal with the question of how much engagement would be required to overcome this detriment. would shared trips or breaks be enough, or will nothing short of full co-education suffice? this seems to be a major oversight. there exist myriad of contradictory evidences testing the impact of gender 40 ofsted v al-hijrah [126]. the denning law journal 177 segregated education, reflecting an overall unclear outcome. on the one hand, arguments can be made that single gender schools offset gendered roles and norms where education is concerned and undermine gender stereotypes. girls, in the absence of boys, are not expected to behave “like girls”, and vice versa. a discussion on the potential benefits of single sex education follows, to question the assumption made by ofsted that there is necessarily a detriment. there are equally evidences which support soeducation. however, the purpose here is not to prove which is more convincing, but rather to question the premise of the assumption that single-sex is detrimental which ofsted argues, and which the court of appeal upheld in this case. global research on single sex schools suggests differences in achievement are multi-layered and dependent on a multitude of other factors. firstly, young children below the age of 6 and particularly between ages 4-6 tend to self-segregate when it comes to play, showing a preference to their own gender.41 this suggests that boys and girls do experience different peer cultures even at a young age, 42 and this reinforces gendered norms (boys being physically playful and girls being more intellectually engaged). fabes et al concluded that the gender of playmates had a crucial impact on early school competence.43 the selfsegregation at this age is a natural phenomenon. where single sex schools are concerned, a number of studies have revealed an array of possible outcomes. for example, research suggests that women from all girls’ schools/colleges tend to be less inhibited about entering traditionally male dominated fields such as the sciences. in a study of 1700 female college students in the us, 40-75% from single sex colleges shifted into neutral or male dominated fields as compared with 25% of women in co-educational schools.44 another study found that the number of female students pursuing maths and sciences dropped when the school became co-educational.45 as pointed out by billger, the source of 41 richard a fabes et al, ‘early school competence: the roles of sexsegregated play and effortful control’ (2003) 39(5) developmental psychology, 848–858, 848. 42 fabes (2003) 849. 43 fabes (2003) 857. 44 solnick, s j, ‘changes in women’s majors from entrance to graduation at women’s and coeducational colleges’ (1995) 48(3) industrial and labor relations review, 505–514. 45 sherrilyn m billger, ‘admitting men into a women’s college: a natural experiment’ (2002) 9 applied economics letters, 479–483. comment 178 these differences can be highly personal to the individual students, 46 however they also seem to reflect a negative impact of sharing the learning environment with boys. billger’s longitudinal study of single sex schooling in the us also revealed that “relative to co-ed schools, the gains from single-sex schooling may be greater for women than men, with 11% higher starting salaries but virtually identical salaries for men.”47 thus, the single sex schools are empowering women and raising their economic expectations and/or achievements. on the whole, billger found that there was a marginal detriment from single-sex education, but concluded that “some positive prospects do nonetheless arise. in some cases, african-american students experience unique gains, and single-sex education may therefore provide an important opportunity to continued improvements in educational quality.”48 in the uk, another longitudinal study by sullivan, joshi and leonard49 into a cohort of single sex educated men and women found that at the age of 42, there was no net detrimental impact on the chances of being employed. where women were concerned, there was however a “positive premium” of 5% on their wages as compared with women who were co-educated. however, this did not undermine occupational segregation of these women in the labour force, concluding that the “gendered nature of the labour market (and other) institutions is the dominant feature of adult experience rather than any legacy of single sex schooling.”50 pertinent for the case under commentary here, sullivan et al note that “it is an irony that, while the argument against single-sex schooling is that single-sex environments are ‘unnatural’ for young people, gender segregated environments are seen as quite normal in adult life.”51 thus, ofsted’s arguments of british values and modern britain perhaps bely a lack of contextual awareness, and perhaps a utopian vision of sex-equality in modern britain being imposed on a school, while failing to take account of the reality of norms in modern britain. 46 sherrilyn m billger, ‘on reconstructing school segregation: the efficacy and equity of single-sex schooling’ (2009) 28 economics of education review, 393402, 393-394. 47 billger (2009) 395, 400. 48 billger (2009) 402. 49 alice sullivan, heather joshi and diana leonard, ‘single-sex schooling and labour market outcomes’ (june 2011) 37(3) oxford review of education, 311– 332. 50 ibid 329. 51 sullivan et al (n 49) 329. the denning law journal 179 it is interesting that where male students are concerned, billger found that those who had attended single-sex schools were less likely to pursue science and computers. perhaps an indication of the lack of expectations imposed on “masculine” subjects in the absence of female students. on the other hand, the male students pursued “business, philosophy/religion, engineering and secretarial skills.”52 this outcome of single-sex education should perhaps be a coercive factor where gender equality is concerned. burton argues that the one main reason why gender inequality persists despite the 2010 act, and its predecessor legislations, is the issue of occupational segregation which is the tendency for men and women to be employed in different occupations.53 if single-sex schooling breaks down gendered norms where career choices are concerned, the overall impact for gender equality is, surely, positive. thus, even in the case where short term disadvantage may be identified through the removal of a choice to engage with members of the opposite sex, perhaps the long term gain outweighs any detriment? sex discrimination and stereotypes go hand in hand. kelsey argues that in the us context, sex segregated schools are unconstitutional as the 14th amendment guarantees against sex discrimination, and he argued that segregated schools perpetuate stereotypes about how each gender should behave. 54 he breaks down this argument at the physiological and biological levels. on the other hand, he cites programmes which seek to enhance the performance of female students in subjects where boys traditionally outperform them such as mathematics. these “single-sex programs seek to bolster girls’ confidence and interest in math by providing an environment where boys are unable to dominate.”55 while kelsey critiques the positive exam results as possibly influenced by the selection programme for female students undertaking the course, it is clear that the environment to some extent plays a part in increasing the students’ achievements. in the us, single-sex education is a highly political issue.56 elsewhere, edstrom and brunila studied gender equality work in sweden and finland, and discovered an alliance between 52 billger (n 45) 398. 53 becci burton, ‘neoliberalism and the equality act 2010: a missed opportunity for gender justice?’ (july 2014) 43(2) industrial law journal 122, 132. 54 chapple kelsey, ‘sports for boys, wedding cakes for girls: the inevitability of stereotyping in schools segregated by sex’ (2016) 9 texas law review 537. 55 ibid 544. 56 nancy chi cantalupo, ‘comparing single-sex and reformed coeducation: a constitutional analysis’ (2012) 49 san diego law review 725. comment 180 projectisation and heteronormativity.57 a binary construction of boys and girls was identified and the focus on school children revealed the existence of gender stereotypes in co-educational settings, before gender equality awareness is raised. at the point of awareness, “the girls’ group is encouraged to be stronger, braver, more independent and to take more space, while the boys’ group is encouraged to be more socially and linguistically competent.”58 they found that the girls’ group is required to change its behavior more than the boys group, placing more pressure on girls. other factors which have impact for girls of a certain age may be female role models.59 this analysis weaves a complex picture of the possible outcomes of sex-segregated schooling. in ofsted v al-hijrah, the court of appeal held that a harm was suffered by each individual girl and boy pupil. but this decision was reached without adequately testing that harm. only a small number of pupils are cited in the ofsted report, raising the question of disparate impact. zatz’s “disparate impact liability” theory may be of interest here.60 while the focus is on employment discrimination law in the us, the 2010 act provides comparable anti-discrimination provisions for england and wales. here, group outcomes are viewed collectively and not all members of the group are expected to suffer. similarly, in the case of the pregnant women, “the fact that some women who are pregnant or on maternity leave have not been treated unfavourably does not mean that this particular woman’s unfavourable treatment is not because of her pregnancy or maternity leave.”61 the matter must be viewed from the perspective of the individual claimant. in the case of al-hijrah students, the court of appeal did not require a single claimant pupil to be identified. however, perhaps identifying such a pupil, even anonymously, would have strengthened ofsted’s arguments of a detriment being suffered. 57 charlotta edstrom and khristina brunila, ‘troubling gender equality: revisiting gender equality work in the famous nordic model countries’ (2016) 20(1) education as change 10. 58 edstrom and brunila (n 59) 20. 59 ronald g ehrenberg, danial d goldhaber and dominic j brewer, ‘do teachers’ race, gender, and ethnicity matter? evidence from the national educational longitudinal study of 1988’ (1995) 48(3) industrial and labor relations review 547. 60 noah d zatz, ‘disparate impact and the unity of equality law’ (2017) 97 boston university law review 1357. 61 sally robertson, ‘employment discrimination: pregnancy and maternity’ [2017] westlaw insight.uk. the denning law journal 181 7 appeal in november 2017, the association of muslim schools (ams) made an application for addition of a party after the conclusion of an appeal,62 in the hope of appealing the decision to the supreme court. ams’ concerns were focussed around their 133 membership schools, 10 of whom implemented the same segregation policies as al-hijrah, and others segregated girls and boys for certain activities. ams submitted that the court of appeal ruling had created uncertainty on what was expected of the schools, and they wished to appeal the decision to the supreme court. ams can be classed as the relevant diocesan authority for any state funded muslim school in accordance with the education act and therefore should be consulted in any change to admissions criteria for muslim schools. further to this, ams also conducts its own inspections of its membership schools pursuant to s 48 of the education act 2005. this application to the court was made pursuant to these interests and clarification from the supreme court was being sought on the basis that the appeal court ruling had created uncertainty on the standard to which these schools would be held upon inspection, and ams’s own statutory obligations when inspecting schools. in particular, they cited the “lack of guidance from ofsted or the department for education on the question of segregation. there has been no public consultation and no official statement that educating girls and boys separately is fundamentally wrong.”63 in rejecting the appeal, the court cited a lack of detail in the witness statement provided by ams, including names of the schools potentially affected and the segregation policies which they adopt. an issue which comes down to a badly drafted application rather than a legitimate lack of concern. it seems clear that the question of wider applicability of this decision which was purported to only be relevant to the particular ofsted report relating to al-hijrah school, is a legitimate one. the appeal court admitted their “judgments touch on matters of general application”64 and also noted that the decision reached in this case will lead ofsted to 62 hm chief inspector of education, children's services and skills v the interim executive board of al-hijrah school v the secretary of state for education, the equality and human rights commission, southall black sisters and inspire, in the matter of an application for joinder by the association of muslim schools [2017] ewca civ 1787. 63 al-hijrah (n 65) 12. 64 al-hijrah (n 65) 16. comment 182 applying a “consistent approach to all similarly organised schools.”65 the justices cited the acceptance of the decision by al-hijrah school and birmingham city council and moves to implement the decision as an indication that the matter was resolved. this seems clearly erroneous in light of ams’s appeal that several other schools operate the same policy and will no doubt be held to the same standard. for this to be clarified, and for this potentially divisive ruling to be legitimately employed by ofsted at other schools, there seems to be a clear need for a supreme court judgment which may confirm the appeal court’s decision, but place clear parameters of expected engagement between the pupils to overcome any detriment suffered. while al-hijrah did not wish to appeal, neither did they oppose ams’s endeavours to appeal.66 8 conclusion the decision reached by the court of appeal in ofsted v al-hijrah was criticised by colin diamond, corporate director of children and young people at birmingham city council, on the basis that al-hijrah school were purportedly being held to a higher standard by ofsted, while other schools with similar policies were being allowed to continue as usual.67 during a bbc radio 4 interview, he questioned ofsted’s logic in allowing a boys’ school and a girls’ school to operate adjacent to each other, with a fence between them, without difficulties; while simultaneously taking particular issue with boys and girls in the same school, questioning the logic and equity being applied. these are valid points. where sex discrimination, in the context of single-sex education, this case raises many questions about the application of the 2010 act. alhijrah purported to be a co-educational school which segregated boys and girls, thereby removing from the pupils the choice of engaging with members of the opposite sex and thereby resulting in a detriment being suffered. however, the ofsted report following a s 5 inspection of alhijrah made reference to politicised terms such as “british values” and “life in modern britain”, without adequate scrutiny. when the present legal treatment of segregated co-educational schooling is contrasted with 65 al-hijrah (n 65) 96. 66 al-hijrah (n 65) 12. 67 bbc, ‘birmingham islamic faith school guilty of sex discrimination’ (bbc, 13 october 2017) <http://www.bbc.co.uk/news/uk-england-birmingham41609861> accessed 22 january 2018. http://www.bbc.co.uk/news/uk-england-birmingham-41609861 http://www.bbc.co.uk/news/uk-england-birmingham-41609861 the denning law journal 183 the long established british tradition of single-sex schools, there is a glaring disparity. the latter is protected from discrimination claims by the very same act seemingly being breached by the segregated school. despite the technical distinction between the two types of schools, which mean one has the possibility of engagement with the opposite sex, while the other does not, claims of detriment are also inadequately scrutinised by the appeal court and evidence abound of the lack of clarity in outcome for those educated in single-sex schools contrasted with coeducational settings. finally, the grounds on which ams was precluded from joining the action and appealing the case to the supreme court are unpersuasive, and the resultant position is that faith schools exercising gender segregation can now all expect a visit from ofsted. how these schools reorganise themselves is yet to be determined, but it is clear that the only way they can continue with single-sex education, if they so wish, is to operate two separate schools, one for boys and one for girls. the spiliada: from convenience to propriety helen helston* in this article two interrelated aspects of the english court's jurisdiction over an action containing foreign elements will be examined. the first is the exercise of the court's discretion to grant a stay of english proceedings where jurisdiction has been founded as of right. jurisdiction is so founded where, for example, a writ is served on the defendant who is present within the jurisdiction at the time of the service of the writ. the second is the exercise of the court's discretion to grant leave to serve a writ out of the jurisdiction under rsc order ii r.1(l). such leave will be required if the defendant is not within the jurisdiction at the time of service. the analysis of these issues will be made in the light of the important decision in spiliada man'time corpn. v. cansulex ltd ([he spiliada/ in which the court, for the first time, elaborated a coherent principle that can be applied to both order ii and stay situations. order ii and stay: the pre-spiliada rules prior to the spiliada it was unclear to what extent the principles governing the exercise of the court's discretion to grant a stay and those in relation to the exercise of its discretion under order ii were co-extensive. in relation to stay, the grant of a refusal to stay of english proceedings had, since 1978, turned on the two-stage test propounded by lord diplock in macsha1l11onv. rockware glass ltd.;2 "in order to grant a stay two conditions must be satisfied, one positive, one negative: (a) the defendant must satisfy the court that there is another forum to whose jurisdiction he is amenable in which justice can be done between the parties at substantially less inconvenience and ex'}jensejand (b) the stay must not deprive the plaintiff of a legitimate personal or juridical advantage which would be available to him ifhe invoked the jurisdiction of the english court." "lecturer in law, university of buckingham. 1. [1986] 3 all e.r. 843. 2. [1978] a.c. 795, at p.812. 67 the denning law journal prior to this test, discretion to grant or refuse stay was based on the question of whether the english proceedings could be said to be "oppressive or vexatious". 3 the oppressive or vexatious test proved unduly burdensome on the party seeking stay since, self-evidently, to prove that something is "oppressive" is no easy task. however, lord diplock's approach in macshannon has produced its own special problems. for example, it has been disputed whether lord diplock introduced the defendent,,7 and then somehow reach a balance between the two. this could be laws.4 according t~ this concept the court had to consider ~hether there is another competent tribunal which is more suitable for the trial of the case in the interests of the parties and of justice.5 if so, then a stay should be granted. the consequence of this uncertainty is that it has been unclear whether the courts should refer exclusively to scottish criteria when deciding whether a stay should be granted or not. further the balance between the (a) and the (b) branches of lord diplock's macshannon test was never clear. however, if both were satisfied then the court had no choice but to determine the "critical equation" as explained by lord wilberforce in the atlantic star. 6 according to this, the court must "take into account (i) any advantage to the plaintiff, (ii) any disadvantage to the defenda~t',7 and then somehow reach a balance between the two. this could be difficult since any advantage to the plaintiff was likely to be neutralised by a disadvantage to the defendant. also, as lord wilberforce himself stated, the resolution of the "critical equation" was likely to be by way of an "instinctive process".8 yet, surely, reason demands that the exercise of such a discretion should have more legal content than mere "instinct". in relation to order ii, leave could be refused where england was not the forum conveniens9 because, for example, of the locality of the parties or the witnesses. 10 there has never been any recondite guiding principle governing the exercise of this discretion of the macshannon kind. the court has simply identified such matters as expense and inconvenience as possible grounds for refusing leave. the question now is what effect the spiliada has had upon these principles. the spiliada in the spiliada the court was concerned with the exercise of its discretion to grant leave to serve out of the jurisdiction under order ii r. 1 (l)(f)(iii). this 3. si. pierre v. soulh american siores (galh and chaves) ltd. [1936] 1 k.b. 382. 4. in macsh(lll/lon itself, whereas lord diplock expressed the view that his reinstatement of the principles must be indistinguisable from the principle of forum /1011 crjllveniens,lord salmon expressly rejected any adoption of that latter principle: [19781 a.c. 795, at pp.81 2,822 and 817. see also, adrian briggs, [1984j legal siudies 74. 5. sim v. robinolv (1892) 19 r. (ct. of sess.) 665. 6. the allanlic slar [1974j a.c. 436, at p.468. 7. ibid .. 8. ibid .. 9. maroux v. sociedade commercial abel pereira da fonseca s.a.r.l. [1972j i w.l.r. 962 and g.a.f. corporalion v. anchem products inc. [1975j i lloyd's l.r. 601. 10. sec, e.g., sodhe generale de paris v. dreyfus brothers (1885) 29 ch.d. 239, at p.242. 68 the spiliada: from convenience to propriety sub-rule of order ii r.1 deals with the situation where a contract is "by its terms or by implication governed by english law", which all courts in the spiliada saga agreed was, on the facts, the proper law. ii the plaintiffs, the liberian owners of the spiliada, wanted to commence proceedings in england against cansulex ltd. in respect of corrosion caused to the ship when wet sulphur was loaded aboard it. the leave, which had been granted at first instance and then discharged by the court of appeal, was reinstated by the house of lords. though the case was particularly concerned with order ii, lord goff (giving the leading judgment) took the opportunity to review both the principles relating to that order and those relating to the grant of a stay of english proceedings which have been founded as of right. 12 in doing so he identified what, in his view, was the fundamental principle applicable to both. the court, he said, should exercise its discretion in favour of that forum in which the case could be tried more suitably for the interests of the parties and the needs of justice, i.e. the "appropriate forum"y the "appropriate forum" was that with which the case has its closest and most real connection.14 the fact that the plaintiff might be deprived of a legitimate advantage if leave is refused or a stay granted is obviously relevant to this issue but by no means conclusive. is by using the test of closest, most real connection, the english court was found to be the appropriate forum and so leave was reinstated. this decision was reached by consideration of, inter alia, the "cambridgeshire factor" which in the event proved decisive.16 the cambridgeshire, an english owned ship, had also been damaged by the wet sulphur. its owners had already commenced proceedings in england against cansulex ltd., when spiliada maritime corporation sought leave under order ii. both ships were supported by the same insurers and both of the ship's owners had briefed the same solicitors. the combination of the preparatory work done by the cambridgeshire team together with the fact that english law governed the contract between spiliada maritime corporation and cansulex ltd., led to the conclusion that england was the appropriate jurisdiction for the trial of the action. 17 ii. the spiliada [1985] 2 lloyd's l.r. 116 (c.a.). 12. [1986] 3 all e.r. 843, at p.853. 13. ibid., at pp.853-54. according to lord goff, the burden of proving the appropriate forum under order 11falls on the party seeking leave. in relation to stay it falls on the party seeking a stay. 14. ibid., at p.856. the ancillary significance of all this is a new departure for the 'closest and most real connection' test which began its life in contract and then spilled over by analogy into torts, and more recently has been recommended by the law commission in report no. 168 for application in assessing the domicile of children. is there room, then, for a prediction that all conflicts' issues will ultimately be resolved by applying this test? is. ibid., at p.859. 16. ibid., at pp.861-62. 17. ibid .. 69 the denning law journal the relationship between order ii and stay whether the court is being asked to grant a stay of english proceedings or leave is being sought under order ii, the same issue is at stake: should the matter be tried in england or in some other jurisdiction? lord goffs authoritative statement that there is a general underlying principle in relation to both order ii and stay is, therefore, to be welcomed. it provides a composite framework according to which the english court can properly take jurisdiction and allow english proceedings to continue or, conversely, refuse to assume jurisdiction altogether. nevertheless, if this statement is examined in more depth, an important distinction between order ii and stay situations arises which casts doubt on the general applicability of the composite principle to both situations. according to lord goff, when considering order ii, the english court should find that it clearly provides "the appropriate forum". 18 where a stay is requested it should be granted if there is "another clearly more appropriate forum", failing which a stay should ordinarily be refused.19 though the matter is not explored further, it is submitted that this distinction is not merely verbal. the implication is that in the latter situation there are legitimate competing.fori in accordance with coherent principles but something further makes a particular foreign forum the more appropriate one in all the circumstances of the case. however, in the former situation there is no room for competing.fori in accordance with such principles; the english court must be the only appropriate forum. moreover this distinction is desirable for, as barma and elvin have suggested, english judges should avoid the appearance of undue judicial chauvinism.2o for example, they should not arrogate to themselves an unwarrantably wide jurisdiction. in order to achieve this, it is necessary for there to be a difference of approach towards order ii and stay. to take stay first. as has been seen, the macshannon test happily relaxed the former, burdensome requirement that a party must show that the english proceedings were "oppressive or vexatious"y the spiliada conception of the appropriate forum (forum non conveniens) provides another "new departure" and is particularly valuable given that it should enable the english court to grant a stay more readily and flexibly in cases where jurisdiction founded as of right is in appropriate.22 in this way it should ensure that the english court will not assume an unwarrantably wide jurisdiction. however, these advantages do not apply with equal force to the exercise of the court's discretion under order ii, since that order already gives the court the power to assume an extended jurisdiction. thus, so that the court will not assume an unwarrantably wide jurisdiction it should be more rigorous in its application of the "appropriate forum" test in relation to 18. ibid., at p.8s8 (emphasis added). 19. ibid., at pp.8s4-s6 (emphasis added). 20. barma and elvin, [1985] l.qr. 48, at p.ss. 21. supra, at p.68. 22. e.g., where the writ is served on a defendant whilst he is only temporarily present within the jurisdiction and there are other substantial factors connecting the case with an alternative forum. 70 the spiliada: from convenience to propriety order ii than in stay proceedings. in practice, this goal will be achieved by the distinction between proving the english court to be the appropriate forum and proving that there is another more appropriate forum for a stay to be granted, for it is more difficult to prove the former than the latter. the doctrine of the appropriate forum in adopting the principle of the appopriate forum the house of lords in the spiliada has cast doubt on the future use of the phrase ftrum non conveniens. indeed, lord goff doubted "whether the latin tag 'forum non conveniens' is apt to describe this principle." in particular, by drawing on the classical statement of the doctrine by lord kinnear in sim v. robinow23 he emphasised that the issue is not merely one of practical convenience.24 rather, a variety of factors have to be taken into account when establishing the appropriateness of the forum. these factors include not just those of expense and convenience but also, for example, the law governing any relevant transaction.25 this shift of emphasis now requires establishing what may alternatively be referred to as an objectively determined proper forum for the trial of the dispute, that forum with which the action has its closest and most real connection.26 the objectivity of this process is not to be undermined by giving undue weight to any legitimate advantage of which the plaintiff may be deprived should leave be refused or a stay granted, for, as lord goff noted, "simply to give the plaintiff his advantage at the eji.:pense of the defendant is not consistent with the objective approach inherent in lord kinnear's statement of principle in sim v. robinow.' 27this is reflected in the decision on the facts in the spiliada. the plaintiff had claimed as a legitimate advantage, for bringing the proceedings in england, the expiry of the british columbia limitation period leaving them with no alternative but to proceed in england. in the view of the house of lords the decisive factor indicating the english court as the appropriate forum was the cambridgeshire factor not the limitation.28 the adoption of the principle of the appropriate forum is timely. it shifts the emphasis away from lord diplock's two stage test in macshannon (as supplemented by lord wilberforce's "critical equation" conception in the atlantic star) and the problems that that test involved,29 to a single composite test, the latter test being readily explicable, theoretically simple to operate and already "notorious" in other branches of the law.3d of course, the "appropriate forum" test is not without its own rather obvious difficulties. the court has to consider an apparently seamless web of connecting factors. the consideration of these factors 23. (1892) 19 r. (ct. of sess.) 665, at p.668. 24. [1986] 3 all e.r. 843, at p.853. 25. ibid., at p.856. 26. supra, at p.69. 27. [1986] 3 all e.r. 843, at p.859. 28. supra, at p.69. the legitimate advantage point was treated obiter: [1986] 3 all e.r. 843, at p.86i.. 29. supra, at p.68. 30. see comment, supra n.l4. 71 the del\lning lawjournal should not disintegrate into an "instinctive" process, however we define that, for otherwise the law would be put back into the position it was under macshannony yet just how the court is to assess all the connecting factors remains to be seen. this difficulty may be demonstrated by reference to the court of appeal's first attempts to apply the spi/iada in du pont v. agnew32 and charm maritime v. kyriakou.33 both cases were concerned with stay and in both the court of appeal can be criticised for giving undue weight to one connecting factor indicating england as the more appropriate jurisdiction when other factors pointed to a legitimate alternative. in du pont v. agnew the court was faced with multi-party insurance claims arising out of a tort which had occurred in illinois. none of the insurance policies contained a choice of law clause and so the court of appeal, treating a lloyd's policy as the "lead" or principal policy, determined that english law was the proper law thereof (and therefore of all the other related policies). the particular issue concerned an indemnity which, according to english law as the proper law, could only be denied as a matter of english public policy.34thus, the court of appeal found the english court to be the more appropriate forum for the determination of that issue because it was the more appropriate tribunal to assess the extent of english public policy.35 therefore, despite substantial connecting factors pointing to illinois as the more appropriate jurisdiction (inter alia, the tort was committed there, the award giving rise to this particular litigation was made there and the illinois courts were in a better position to analyse what had happened in respect of corporate responsibility for' the injury),36 a stay of english proceedings was refused, similarly, in the charm maritime case a stay was refused where the particular issue concerned a trust deed, the governing law of which was arguably english. 10 since greek law (being the law of the other possible appropriate forum) did not recognise the concept of a trust, england was found to be the more appropriate jurisdiction despite substantial connections between the case and greece given, for example, that the parties to the dispute were greek and the dispute itself had arisen there.38 it may be that these cases can be explained on the basis that, as lord goff emphasised in the spiliada, "appropriateness" is not a synonym for "mere convenience".40 the forum should arguably be legally appropriate rather than 31. supra, at p.67. 32. [1987] 2 lloyd's l.r. 585. 33. [1987] 1 lloyd's l.r. 433. 34. [1987] 2 lloyd's l.r. 585, at p.594. 35. ibid.. 36. ibid., at p.593. 37. [1987] 1 lloyd's l.r. 443, at pp.439, 451. 38. ibid., at p.451. 39. [1987] 2 lloyd's l.r. 585, at p.595 and [1987] 1 lloyd's l.r. 433. at p.448. 40. [1986] 3 all e.r. 843, at p.853. 72 the spiliada: from convenience to propriety merely factually convenient. what made england the more legally appropriate jurisdiction in du pont was the existence of an overriding english rule of public policy that could determine when the right to an indemnity could be denied. in charm maritime the absence of a law of trusts in greece inexorably made england the more legally appropriate jurisdiction. yet clearly the english courts should be wary of treating the fact that english law is the law governing the issue as determinative of the more appropriate forum if they are not to appear chauvinistic. on the whole, in these cases, the court of appeal seemed to give undue weight to english law as the law governing the issue. moreover, in du pont and charm maritime the court of appeal arguably fundamentally misapplied the spiliada by finding england to be the more appropriate jurisdiction. according to lord goff in the spiliada, if no other more appropriate forum than the english court can be established then ordinarily a stay should be refused anyway.41 it is not necessary for the court to find that it is the more appropriate forum. thus, where "appropriateness" can be said to be balanced between factual convenience and legal convenience, this giving rise to no other clearly more appropriate forum, a stay should be refused. in du pont and charm maritime it was open to the court to take this route and so refuse a stay on this basis alone. the logical force of the general underlying principle of the "appropriate forum" as expressed in the spiliada was considered by steyn] in att.-gen. v. arthur andersen cs co..42 in that case the court was faced with a request for a stay of english proceedings not by the defendant but by the plaintiff who had actually brought those proceedings. the plaintiff had commenced proceedings against andersen's in new york but, anticipating arguments disputing the jurisdiction of the new york court, had also served a protective writ in england. the plaintiff then sought a stay of these english proceedings pending the outcome of the dispute as to the new york court's jurisdiction. he was successful. though the judgment is not remarkable for its clarity, it seems that steyn] treated the case as a novel one in which the relevant principles applicable might "be regarded as a gloss,,43 on those contained in the spiliada. the gloss was as follows: "has it been shown that it is unjust, because it was vexatious or oppressive, to allow the english proceedings to be pursued pending the decision of the new york court?,,44 though not stated it must presumably have been "vexatious or oppressive" to the plaintiff. the extent to which steynl's test is a gloss on the spiliada requires analysis. in andersen's case a stay was granted on the basis that it was "vexatious or oppressive" to compel the plaintiff to continue with the english proceedings in the light of 41. [1986] 3 all e.r. 843, at p.856. 42. the times, 13 october 1987, lexis transcript for 8 october 1987. 43. ibid.. 44. ibid. (emphasis added). 73 the denning law journal undertakings which the plaintiff had invited the defendant to accept.45 it was not granted on the basis that new york was the appropriate jurisdiction by reason of being that with which the action was most closely connected. thus, the "vexatious or oppressive" test was not being used euphemistically to refer to the appropriate forum. rather, it seems that the court was weighing the respective advantages and disadvantages to the parties of a grant of stay. it was only when the judge turned to consider the professional involvement in the case that he concluded that "new york rather than london is at present the centre ofgravity."46 self-evidently this is consistent with the spiliada since the concept of a "centre of gravity" mirrors, at least in a rough and ready way, the notion of the "appropriate forum" as one with which the proceedings are most closely connected; even more so given the house of lords' reliance in the spiliada on the feature of professional involvement, i.e. the cambridgeshire factor.47 if this is correct, then the use of the words "vexatious or oppressive" is misleading, doubly so since the "oppressive or vexatious" test was expressly discarded by the house of lords in relation to stay in 1978.48 it would have been preferable for steyn j either to have more clearly defined "vexatious or oppressive" as a test in its own right, or to have adopted the spiliada as a general approach and used the "vexatious or oppressive" concept as a feature which might point to new york as the appropriate jurisdiction. as it is, the approach he took represents an unhappy mixture of the two and will clearly require future scrutiny. conclusion the house of lords in the spiliada has wrought changes in the principles governing the exercise of the court's discretion in the two areas of order ii and stay proceedings. two clear points have emerged. first, the same principle underlies the exercise of discretion in relation to both order ii and stay.49 secondly, that principle is that of the appropriate forum.50 in this regard it has been argued that the house of lords has done more than merely accept the doctrine of forum non conveniens. it has transposed that doctrine into that of the "appropriate forum". given lord goff's adoption of what is "appropriate" rather than "convenient", 51 it may be misleading for future courts to talk in terms of fimun non conveniens. however, as has been seen, the spiliada merely provides a basic framework for the guidance both of those who professionally advise clients on the question of the exercise of the court's discretion in relation to order ii and stay and the judges 45. ibid.. 46. ibid. (emphasis added). 47. supra, at p.4. 48. macshmluon v. rockware glass ltd [19781 a.c. 795. 49. supra, at p.69. 50. supra, at p.69. 51. [1986] 3 all e.r. 843, at p.854. 74 the spiliada: from convenience to propriety who actually exercise that discretion. this raises serious doubts as to whether lord templeman's cri de coeur in the spiliada that submissions on order ii and stay "will be measured in hours not days" will be answered.52 it is not without significance that the two cases on stay53 subsequent to the spiliada found their way to the court of appeal. 52. [19861 3 all e.r. 843, at p.847. 53. du poili and chann maritime, supra, nn.32, 33. 75 codification of the criminal law j. c. smith* in a paper delivered to the statute law society in october, 19831 i explained what the codification team was trying to do and how it was trying to do it. since then, our report to the law commission has been published2 and a substantial number of comments on the proposals have been received. some are favourable, some are critical. today i propose to respond to some of the criticisms, not of matters of detail, but of the general principle of codification. i shall be expressing only my personal views which are not necessarily those of my colleagues, still less of the law commission. it has been suggested that the supporters of codification believe in it for its own sake. i do not. throughout my career i have always taught the law of contract as well as criminal law; but i never had any enthusiasm for the commission's proposal, now abandoned, to codify the law of contract. i did not support it because i could see no practical advantage in it. the law of contract appears to me to be a generally consistent, coherent and logical system. it has broad general principles which are readily applicable to a wide variety of situations and adaptable to changing circumstances. the criminal law is entirely different. it is incoherent and inconsistent. state almost any general principle and you find one or more leading cases which contradict it. it is littered with distinctions which have no basis in reason but are mere historical accidents. i am in favour of codification of the criminal law because i see no other way of reducing a chaotic system to order, of eliminating irrational distinctions and of making the law reasonably comprehensible, accessible and certain. these are all practical objects. irrational distinctions mean injustice. a is treated differently from b when there is no rational ground for treating him differently; and that .is not justice. the code and law reform the draft code is not a mere restatement of the present law. with the concurrence of the law commission, we incorporated a number of proposals for reform, in •. professor of law, university of nottingham. the child & co london lecture 1986, reprinted by kind permission of professor smith and child & co. 1. [19841statute law review 17. 2. codification oflhe criminal law: a report 10 the law commission (law com. no. 143), 1985. 137 the denning law journal accordance with the principles stated in the report. lord justice gibson, who was then chairman of the law commission, has since said3 that he now thinks that this was a mistake; we should have been asked simply to state the law as it was. codification and law reform are different things and should not be confused. so far as this argument relates to major proposals for law reform, like the recommendations of the butler committee on mentally abnormal offenders, i acknowledge its force; but, as the lord justice recognises, some changes are necessary for "effective and coherent codification." if we had merely restated the law, the product would not have been worthy of the name of code. the essence of a code is that it should be a consistent and coherent whole. a mere restatement of the present law would necessarily have lacked that essential quality. i will take as an example the law governing impossibility in the so-called inchoate offences, incitement, conspiracy and attempt. the amount of judicial time devoted to this issue in the higher courts in recent years shows that it is no mere academic problem. a incites b to commit a crime. b agrees to do so, and does all he can to put the agreement into effect. it looks as if a is guilty of incitement, a and b of conspiracy, and b of attempt to commit that crime. but it turns out that, all along, it has been impossible to commit the crime. where do we find the law which we must now apply? for incitement it is still the discredited rule of the common law stated in roger smith.4 for the attempt, the matter is regulated by the rule in the criminal attempts act 1981, as now interpreted in anderton v ryan.s for conspiracy, the answer depends on whether it is a conspiracy at common law or a statutory conspiracy contrary to s.l of the criminal law act 1977 which itself may be a question of some difficulty. if it is a common law conspiracy, the roger smith rule still applies; but, if it is a statutory conspiracy, the answer depends on s.l of the criminal law act 1977, as amended by the criminal attempts act 1981 which may be the same as the rule governing attempts or may be a third, quite different, rule; no one can say for certain. we have four categories, regulated by two, or, more likely, three, different rules. no reason has ever been offered as to why different rules should prevail. i do not find that surprising because i believe there is no reason. it is a product of the utterly haphazard growth of the law, both common law and statute. it would not have been beyond the wit of the codification team to restate that irrational jumble; but who, in his right mind, would wish to do that? it is surely inconceivable that it would ever be enacted by parliament. an essential function of the code is to introduce consistency and coherence. i believe that the draft achieves it. clause 54(1) provides: a person may be guilty of incitement, conspiracy or attempt to commit an offence although the commission of the offence is impossible, if it would be 3. address to the annual general meeting of justice, 3 july 1985. 4. [1975j a.c. 476. 5. [1985j a.c. 560 overruled on 25 may 1986 by shivpllri [1986] 2 all e.r. 334 (h.l.). 138 codification of the criminal law possible in the circumstances which he believes or hopes exist or will exist at the relevant time. we have a single rule applying to the three offences. it occupies four lines. it would replace a mass of confused and confusing case law. i believe that it provides an answer to all the well-known problems of persons inciting, conspiring and attempting to steal from safes or pockets which are in fact empty, to handle goods which they wrongly believe to be stolen, to import parcels which they wrongly believe to contain controlled drugs, to kill people who are already dead, dishonestly to obtain property by statements which they wrongly believe to be false; and so on. the drafting may still be capable of improvement; but i have seen no criticism yet which leads me to doubt whether it will achieve its aim. please do not think that this is an isolated example. there are plenty more. suppose that i have killed your dog and am charged with criminal damage. my defence is that it was attacking me. if i say i was defending my trousers, the criminal damage act 1971 will apply to determine whether my action was justified. but if i say i was defending my leg, the common law is still applicable. and they are different. i will have a better chance of acquittal if i say i was defending my trousers. trousers, in the criminal law, are more important than legs. or suppose that, seeing x being attacked by y, i go to x's assistance and injure or kill y. if i am charged with an offence against y and i say i was acting in defence of x, the common law of private defence, with its mass of case-law, determines whether my conduct was justified; but if i say i was acting to prevent a crime being committed by y, then the matter is governed by section 3 of the criminal law act 1967 which replaced the common law on that subject. as it is very likely that i was acting both in private defence and in the prevention of crime, this is something of a dilemma. codification and policy the achievement of consistency where it does not exist in the present law necessarily involves some degree of law reform. one of two or more competing rules must be selected or some new rule devised. to deal with impossibility, we selected that rule which we knew that parliament, after full and well-informed debate, decided should apply to attempts. parliament's intention was frustrated, partly because of poor draftsmanship, by the decision in anderton v ryan. i believe that our clause could not be misunderstood as section 1 of the criminal attempts act was; and i would point out that this was not with the benefit of hindsight. our report was published before the decision in anderton v ryan; but we were conscious of the ambiguity in section 1, anticipated the risk of misinterpretation and, i believe, removed it. the choice between competing rules depends on considerations of policy; and we recognise throughout our report that the personal views of three or four academic lawyers on policy are very far from being of overwhelming weight. 139 the denning law journal where policy is embedded in a well-settled rule of law we have generally attempted to restate that rule without regard to whether we might think it right or wrong. but where some public body, principally the law commission or the criminal law revision committee, has found the existing law to be defective and has made recommendations for change, we have attempted to follow as faithfully as possible their proposals. the point that i wish to emphasise today is that if we, or one of these committees, are judged, for any reason, to have made a wrong decision of policy, that in no way impairs the case for codification. consistency and coherence must then be achieved by substituting the preferred rule for that which we have adopted. in the case of impossibility, any alternative to that which we have proposed would be more complex; it would not go into four lines; and it would be likely to pose more problems of interpretation all of which seem to me to be good reasons for sticking to the rule proposed; but, if another rule were preferred, it would still be a great advantage to have the single rule in place of the current confusion. similarly, i stress for there is some misunderstanding about this that the rights and wrongs of the continuing controversy between those whom i may loosely call the subjectivists and the objectivists about the concept of recklessness in the criminal law have nothing to do with the case for codification. certainly, codification must resolve the controversy; but the merits of codification are the same whether the controversy is resolved in favour of the subjectivists or of the objectivists. either way, we can achieve consistency and coherence and avoid making irrational distinctions. this is not to say that i think it is not important to make the right choice and i have my own views about that. but, if my views are wrong, then i am in favour of codifying the other, right, view. in caldwe1l6 the house of lords said that the concept of recklessness which has long been held to be implicit in the word "malicious" when used in a statute, involves "fine and impracticable distinctions", and a distinction that "would not be a practicable distinction for use in a jury trial.,,7 but crimes involving malice are unaffected by that decision. if the house was right, is it not a public scandal that we are continuing to use (as we have for more than a century) an "impracticable distinction" in serious cases of causing injury to the person, that juries and magistrates are sending people to prison, or letting them go free, on the basis of a distinction which it is not practicable to make? if that is right, the sooner the caldwell test becomes generally applicable the better. as the law stands, if a man takes an airgun and, not even considering the possibility that it might be loaded (as is the fact), aims and fires it at x, breaking x's spectacles and destroying his eye, the man will be liable for causing criminal damage to the spectacles but will not be criminally liable at all for the destruction of the eye.s the law gives greater protection to spectacles than to eyes. but, 6. [1982] a.c. 341. 7. [1982] a.c. at p.352. 8. wv. do/bey [1983] grim. l.r. 681 (d.c.). 140 codification of the criminal law although the man has committed no crime by destroying the eye, if x dies of the injury within a year and a day, he will be guilty of manslaughter.9 no-one ever decided, as a matter of policy, that we should make these strange distinctions and it is difficult to see how any rational person could decide to make them. it is a historical accident, arising from the haphazard, piecemeal development of the law. what i am pleading for today is not any particular rule but for consistency and coherence, where distinctions, if we make them, are based on reason and not on accident. this can be achieved only by taking an overall view of the whole system, not by tinkering with bits of the law; and that means codification. accessibility and comprehensibility we claim in our report that codification will make the law more accessible and comprehensible. some of our critics are very sceptical of that claim. several of them have been kind enough to say that the principles are now readily accessible and stated in a comprehensible manner in the text book, smith & hogan on criminal law. i would be the last to decry the virtues of that book. but they are far from being the virtues of a code. we try hard to state the law as simply and clearly as possible. but, if the law itself is inconsistent, incoherent and uncertain, the statement of it is inevitably complex and accessible only to the intelligent and determined student. if the code brings consistency and coherence, it necessarily makes the law more accessible and comprehensible. were the code to be enacted tomorrow, the four lines of clause 54(1) would be the sole source of the law on the vexed topic of impossibility. the exposition of it would be infinitely shorter and simpler than is possible today. or consider the concept of recklessness with its present variety of meanings. my experience of teaching, not only undergraduates, but also members of the profession and, indeed, judges, convinces me that many of them have the greatest difficulty, in grasping these subtleties themselves, and in the case of judges, explaining them to juries. it is not necessary. the concept is capable of definition in short and clear terms. we are criticised for what is seen as our belief that the law can be made simple. i have stated in all five editions of my law of theft that that part of the criminal law cannot be made, as i put it, "childishly simple". i have not changed my mind .about that. in the law of theft, notwithstanding frequent judicial wishful thinking, there is no escape from the complexities of the civil law governing proprietary interests. of course, there are limits to simplification. but the point is that the present law is very much more complex than it needs to be and it should be made as simple as possible. certainty similar scepticism has been expressed about our claim that the code can make the law more certain. it is objected that the code would throw up all sorts of new problems of construction, would generate a great mass of new case-law and, in the 9. cf. seymour [1983] a.c. 493 (h.l.); kong cheuk kwan v. the quem [1985] crim. l.r. 653, 655. 141 the denning law journal words of an eminent critic, "the medicine will within a short period of time prove to be worse than the disease." clearly this must be taken very seriously, because there is no doubt that it could happen. section 16(1)(a) of the theft act 1968, obtaining a pecuniary advantage by deception, the provision which lord edmund-davies dubbed "a judicial nightmare",10 is a horrible warning of the effects of poor draftsmanship. but that was a provision which was making completely new law, it was prepared in haste while the theft bill was going through parliament, and it did not have the advantage of being considered by the criminal law revision committee or any similar committee. another, equally horrific, provision is section 6 of the same act which is concerned with the meaning of the words "with the intention of permanently depriving the other of [his property]". this section was actually introduced in the name of codification. the clrc had been content to leave the phrase undefined, to be interpreted in the light of the pre-theft act case law. the home office, with uncharacteristic enthusiasm, introduced the clause which became section 6 "to make the bill as complete a statement of the law as practicable, bearing in mind the decision, reached since the clrc reported, to have a comprehensive criminal code.,,11 in the recent case of lloyd, 12the court of appeal was inclined to agree with mr. j. r. spencer's description of section 6 as a section which "sprouts obscurities at every phrase.,,13 the court held that section 6 should be interpreted in such a way as to ensure that nothing is construed as an intention permanently to deprive which would not, prior to the 1968 act, have been so construed.14 of course, "codification" which has to be construed in that way is not merely useless, it is a great nuisance. if i thought codification had to be, or might be, like that, i would be as firmly opposed to it as anyone. but i am quite convinced it does not have to be like that. of course a code will generate case-law. how can it fail to do so when virtually every direction to a jury which results in a conviction is scanned for some defect which might result in the conviction being quashed, including the possible misconstruction by the judge of the relevant legislation?how much case-law it will generate and how damaging its effect will be depends on how well the code has been drafted and on how well it is interpreted by the courts. draftsmanship a friendly critic, wntmg to the law commission about the difficulties of draftsmanship, doubts whether i would claim that the codification team could succeed where others have failed. this is no occasion for false modesty; but it is 10. in royle [1971] 3 all e.r. 1359, 1363. 11. cited by mr. j. r. spencer, "the metamorphosis of section 6 of the theft act," [1977] grim. l.r. 653, 655. 12. [1985] qb. 829. 13. [1985] grim. l.r. 653. 14. [1985] 2 all e.r. at p.666. 142 codification of the criminal law for others, not me, to judge how well the drafting has been done. morever, it is now being subjected to intense scrutiny by many acute minds. if, at the end of this process, we cannot achieve more in terms of clarity than has been attained in criminal statutes in recent years, then we should abandon the enterprise. as i have said elsewhere, i undertook this task with the utmost scepticism whether a group of academic lawyers, with no proven skills in draftsmanship, could do what was required. the comments i have received from some of those with great experience in construing statutes encourages me to believe that i was unduly pessimistic. if so it is not because we are cleverer than (or indeed as clever as) the parliamentary draftsmen, for whose talents i have the highest respect, but because we are a group who have devoted much of our professional lives to a close study of this particular branch of the law, because we were able to concentrate on the subject for a much longer period than, i suspect, is ever permitted to the parliamentary counsel and because we worked as a team, each member of which subjected the work of the others to intense, and sometimes humiliating, scrutiny. we may have been inexperienced at drafting, but we were highly experienced at criticising the drafting of others. above all, we were able and required, to take an overall view and thus avoid inconsistency. rules of interpretation our terms of reference required us to consider and make proposals in relation to the rules which should govern the interpretation of the code. i began by thinking that it was not practicable to formulate rules of construction but i changed my mind and i now think this a vital part of the code, if we are to avoid the problems which our critics feared. as the codification report states, "a prime object of codification is the provision of a clear and authoritative statement of the criminal law.,,15even if it succeeds at the outset, it will cease to be that if a meaning is put upon its words which they cannot reasonably bear. the words of the code then become misleading and a trap. recent case law shows that there is a danger of this happening in the name of "purposive construction".16 if the meaning is plain, i submit that it should be the duty of the court to give effect to that plain meaning, whether it likes it or not. clause 3(1) is designed to ensure that, as far as possible, (because, inevitably, the courts themselves have the last word) this is done. but there are bound to be ambiguities. we are criticised for not incorporating the rule that penal statutes must be strictly construed and all ambiguities resolved in favour of the defendant. in my opinion there are powerful reasons for not codifying that rule. we do find it applied from time to time, but, if it had been universally applied, nearly all of the decided cases of statutory construction which have gone in favour of the crown would have been decided the other way. strict liability and vicarious liability would be virtually non-existent. as with other rules 15. para. 3.3. 16. see particularly ayres [1984] a.c. 447, criticised, [1984] grim. l.r. 354. 143 the denning law journal of construction, the courts apply it when they want to apply it; and, when they do not, they forget about it. but if it were stated in the code as a rule of universal application it could not be ignored in this way. a much better way forward, in my opinion, is some further search for the true legislative intent. this is often very easily ascertainable, particularly where the legislation is based on a report accompanied by a draft bill as law commission reports generally are. if the report presented to parliament makes entirely clear what the provision is intended to do, and if the act faithfully reproduces the terms of the bill, what justification can there be for resolving an ambiguity by givingit a different meaning? parliament must surely be presumed to have read and understood the report presented to it and to have intended the provision to do what the report says it does. sometimes the court does find its way to the report, but frequendy it does not; and then we have the unhappy spectacle of the court declaring that the statute means "x" because, they say, that is what parliament must have intended; when the fact is that parliament intended not "x" but "y". can it really be right that the law should be founded on a demonstrable fallacy? in donnel/y17 the court of appeal held that under the forgery and counterfeiting act 1981 it is no longer necessary to prove that an alleged forgery "tells a lie about itself" as was required at common law and by the forgery act 1913. "there can be no doubt," said the court, "that parliament intended to make new law." so it did; but not in this respect. more recendy in anderson's lord bridge, construing section 1(1) of the criminal law act 1977, said "i do not find it altogether easy to understand why the draftsman of this provision chose to use the phrase 'in accordance with their intentions'." he went on to hold that it means, in effect, "in accordance with the terms of the agreement". but the answer to lord bridge's problem was readily ascertainable from the law commission report on conspiracy and criminal law reform.19 the draftsman used the phrase in question because that is precisely what he meant. in both these cases the intention of parliament was defeated. what is the point of our having expensive law commission reports presented to, debated and accepted by parliament if their intention is to be frustrated by the real or affected ignorance of the courts of what the legislation is intended to achieve? these illustrations by no means stand alone. the code aims to prevent such misconstruction of its terms, first by the provision of illustrations which it is hoped will show the court clearlywhat is intended; and second, where the meaning is still ambiguous, by authorising resort to the law commission's final report which, it is assumed, will precede the enactment of the code. i am persuaded that those provisions, as they now stand, will require some modification; but i am not persuaded that they are unnecessary or undesirable. 17. (1984) 79 cr. app. r. 76. 18. [1985] 2 all e.r. 961. 19. law com. no. 76, 1976, 1.38 and 7.2, recommendation (5). 144 codification of the criminal law the code and the common law the most common and powerful objection to codification is that it would stultify the development of the law, that as a distinguished critic puts it it "must inevitably lead to ossification of the law and perpetuation of error." i accept that there is some force in this argument. in some areas but, i think, very few, codification might preclude development of the law by the courts in ways which would be desirable. let me give an example. in codifying the common law relating to double jeopardy we had to consider the effect of a conviction in a foreign court. the authority on this is not extensive but it goes back a long way and it is consistent: a conviction in a foreign court is a bar to trial for the same offence in an english court. clause 15(5) of the draft code restates that rule. but we had no sooner submitted our report to the law commission than the court of appeal decided in thomas2o that, although a foreign conviction is usually a bar, this is not so where the accused has been convicted abroad in his absence, has taken no part in the proceedings, is not extraditable and it is very unlikely that the foreign judgment against him could ever be enforced. this perfectly proper development of the common law would, to say the least, have been difficult for the court to make if the draft code had been in force. the law commission will, no doubt, take account of thomas in any revision they may make of the draft code; but no legislator however percipient can think of all possible contingencies and, however excellent the ultimate form of the code, there would certainly arise other unforeseen points where a court might be obliged to say that it must follow the code with reluctance because it had taken away its power to develop the law. this objection might be of overwhelming weight if there still existed a great body of the common law of crime which was being developed by the courts for the public good. the critics of codification speak as if there were. the law commission themselves in their introduction to the code quote sir leon radzinowicz: "the common law of this country, like the forces of growth which determine it, is sui generis; it constitutes an integral part of the national heritage, and discharges a political, social and moral function which is much more precious than the shapely codes which the seekers after a legal paradise aspired to create." it sounds splendid; but where is this great developing body of law? i look for it in vain. of the seven thousand or more offences only a handful are not already defined by statute. murder, manslaughter, affray, assault, perversion of the course of justice, public nuisance and a miscellany of obscure and rarely used misdemeanours are the only survivors. of course, murder and manslaughter are very important; but is there anything in their development over the last thirty years in which we can take any pride? 20. [1985] qb. 604. 145 the denning law journal the homicide act 1957 alludes to the mental element of murder as "malice aforethought" (express or implied) terminology which goes back to the thirteenth century and which does not make sense in modem english. kenny in 1902 described it as a "mere arbitrary symbol". it is the mental element in murder which distinguishes it from manslaughter and, indeed, from accidental death. it is of crucial importance. surely, after seven hundred years of common law, there should be no doubt about what it is. yet today, notwithstanding five decisions of the house of lords since the homicide act, it is impossible to state it with any degree of conviction. smith21 laid down a largely objective test of liability and that led to the passing of section 8 of the criminal justice act 1967. it then took two decisions of the house, hyam22 and cunningham23 to settle (or so we thought) that it was necessary and sufficient to prove that the defendant knew that it was highly probable that his act would cause death or serious bodily harm, though still leaving in doubt the question whether the act in question must be "aimed at" another. moloney24 decided both that the act need not be aimed at another and that it was not, after all, sufficient that the defendant knew that death or serious bodily harm was highly probable; he must intend one of those consequences; but what is "intention"? the house laid down guidelines for the instruction of juries; but these when used by the trial judge in hancock and shankland were promptly held by the court of appeal to be defective,25so that the convictions were quashed. the court of appeal devised some new guidelines. the house of lords upholding the decision of the court of appeal, has agreed26 that the moloney guidelines are indeed defective and said that it is better not to have any general guidelines at all but does not tell us whether the principles oflaw enshrined in those formulated by the court of appeal are right or wrong. the problem is unsolved and will not go away.the meaning of the word intention is not self evident as is apparent from the widely differing interpretations which have been put upon it by the judges in the last thirty years. counsel will make submissions about it. if the judge does not offer guidance in his direction, intelligent jurymen will ask questions about it. the judge will have to give a ruling; and i do not envy him his task. the common law develops slowly; but 700 years to determine the mental element required for our gravest crime is too long. the matter can and should be settled. i venture to claim that if the code definition of murder and of intention had been in force in 1959, the whole saga from smith to hancock and shankland would have been impossible; and i would submit that that would have been a great gain for the law. i will not go into the recent history of manslaughter but the story is little if any 21. [1961] a.c. 290. 22. [1975] a.c. 255. 23. [1982] a.c. 566. 24. [1985] a.c. 905. 25. discussed [1986] grim .. l.r. 181. 26. 27th february 1986. 146 codification of the criminal law better than that of murder. the limits of manslaughter by recklessness, by gross negligence and constructive manslaughter are obscure and confused.27 the common law offence of affray has been the subject of judicial development. it was resurrected in sharp28 in 1957 after a long period of desuetude and, as defined in that case, has been steadily expanded in scope it is no longer a joint offence requiring proof of unlawful fighting by two or more; it no longer need be proved to have taken place in public; if it occurs in a public place it no longer need be proved that anyone other than the victim was present or likely to be present; the victim himself may now be the "bystander" referred to in earlier decisions.29 there has been judicial development but surely objectionable judicial development. the judges long ago recognised that it was not for them to create new crimes; but the expansion of old ones is no less objectionable. the recent history of perverting the course of justice is not dissimilar. the common law concept of the disorderly house is so vague that a house may be "disorderly" for reasons ranging from the playing of lawful games for stakes which a jury considers to be excessive to the provision of obscene shows, so the court had little difficulty recently30 in holding that provision of certain types of service by a single prostitute could render the house a disorderly one, so by-passing the other rule of the common law that it takes two prostitutes to make a brothel. when the reform of the law of prostitution was being discussed, i observed with interest that some of my judicial friends were very attached to the concept of the disorderly house because it enabled them to put down behaviour which they found as perhaps we nearly all would thoroughly reprehensible; but with great respect to them, that is the function of parliament, not the judges. as for public nuisance, that is such a woolly concept that its potential is scarcely less than that of public mischief which the courts themselves renounced, not only as a crime which may be committed by an individual, but as an object of common law conspiracy. i have been speaking so far of common law crimes. what about general principles? they are much eroded by statute and survive in pockets with no logical justification. i hope this is adequately demonstrated by the examples which i have given from the law of impossibility and self-defence and the prevention of crime. there is no going back to the pure common law. the only sensible way forward is to consolidate the statutory and common law rules into a consistent principle i.e. by codifying. apart from these surviving pockets there are general principles for the construction of criminal statutes like the presumption in favour of mens rea; but these have been applied so haphazardly over the years as to be of very little value. even the "golden thread" of the presumption of innocence established by the house of lords in woolmington has become somewhat tarnished. codification 27. see commentary on kong gheuk kwan v. the queen [1985] grim. l.r. at p.788 and authorities cited therein. 28. [1957] 1 qb. 552. 29. attorney-general's reference (no.3 of 1983) [1985] grim. l.r. 207. 30. tan [1983] qb. 1053. 147 the denning law journal affords the opportunity to formulate these principles in more precise terms and so to achieve greater predictability in the construction of statutes. there is, however, one substantial area of common law, namely that governing secondary liability the law of aiding, abetting, counselling and procuring the commission of offences. yet in the leading case of the attorney-general's reference (no. 1 of 19 7sl1 the court of appeal treated the law as if it were already codified (though very imperfectly) by section 8 of the accessories and abettors act 1861 and held that the right approach was to give the four words, "aid, abet, counsel and procure", their ordinary meaning, bearing in mind that each probably has a different meaning "because if there were no such difference, then parliament would be wasting time in using four words where two or three would do." i happen to believe that this was quite a wrong approach and that it is no more appropriate to seek to give a natural meaning to "aid, abet, counselor procure" than it would be to try to give such a meaning to "malice aforethought (express or implied)". the court, with scant regard for legal history, proceeded as if these words were used by parliament for the first time in 1861, ignoring the fact that they had been in use from at least the sixteenth century and had acquired a technical meaning long before 1861, with implications about presence at, or absence from, the scene of the crime and other matters which no-one could possibly discern from the ordinary meaning of the words. when the court had some common law, it failed to recognise it. with all respect to sir leon radzinowicz and those who take similar views, his rhetoric is without foundation in fact. if we look at the surviving common law of crime we find that it exists only in patches which are the result of historical accidents, that it is frequently uncertain and obscure, if not pernicious and that there is scarcely anything which is worth preserving in its present form. objections to judge-made criminal law there are, moreover, serious objections to changing the common law of crime by judicial decision, since the change is retrospective. in hyam32 lord hailsham expressed himself relieved at being able to reject the argument of the appellant and to hold that vickers33 had rightly decided in 1957 that an intention to cause grievous bodily harm was still a sufficient mens rea for murder after the homicide act 1957 because, he said, if the house had decided to overthrow vickers "a very high proportion of those now in prison for convictions of murder must necessarily have their convictions set aside and verdicts of manslaughter substituted." but in moloney34 neither lord hailsham, nor any other of their lordships, seems to have had any inhibitions about the similar effect of their decision on hyam itself. if moloney is right, it seems necessarily to follow that mrs. hyam was herself convicted on a misdirection and that her conviction could have been upheld only 31. [1975] qb. 773, at p. 779. 32. [1975] a.c. 55, 68. 33. [1957] 2 qb. 664. 34. [1985] a.c. 90s, 926. 148 codification of the criminal law by the application of the proviso. lord bridge indeed commented that he found it difficult to understand why the prosecution in hyam did not seek to support the conviction, as an alternative to their main submission, on the ground that there had been no actual miscarriage of justice. the implication seems to be that that would have been the right way to decide the case. but i have some difficulty with lord bridge's opinion that no reasonable jury could have failed to convict mrs. hyam if they had been told that it must be proved that she intended to cause grievous bodily harm. how many people are today serving life sentences of imprisonment because, between 1974 and 1985, they were convicted on a hyam direction which, because of a re-interpretation of the common law is, and always was, wrong? how many have similarly been wrongly convicted of offences under s.18 of the offences against the person act 1861? that is where the change makes the law more lenient. where it makes it more severe, the effect is that some have been acquitted when, if the law, as we now know it to be, had been properly applied, they might have been convicted. more seriously, the conviction of the first unlucky victims of the expansion of the criminal law infringes the principle of legality that no one should be convicted for doing an act not previously declared to be an offence. in one respect the draft code would preserve judicial creativity. clause 49 provides that a person does not commit an offence by doing an act which is justified or excused by any rule of the common law, except insofar as the rule is inconsistent with the code or any other enactment. nothing in the code is to limit any power of the courts to determine the existence, extent or application of any such rule of the common law. the definition of offences in the present law frequently includes the words "without lawful excuse" or "unlawfully". there is no consistency in this usage but, whether these or similar words are used or not, it is clear that recognised general defences such as duress apply though no mention is made of them. there is no precisely defined limit to such general defences and, in my opinion, it is not possible to offer a definitive statement of all the principlesand rules which may justify or excuse conduct which would otherwise be criminal. many of these are part of the general law, civil as well as criminal. an example is the law which allows the chastisement of children. if the code were to provide closed definitions of these rules we might have a situation in which the criminal law forbade conduct which the civil law allowed which would be absurd or the civil court might find itself constrained by the terms of the code in order to avoid a conflict. in including clause 49 we have followed the advice of such eminent authorities as mr. justice stephen and professor glanville williams and the precedents in the codes of canada, new zealand and elsewhere which are based on stephen's draft. for the reasons i have given, i think such a provision is not only advisable, but essential. an example of its utility is provided, in my opinion, by mrs. gillick's case.35 35. gil/ick v. west norfolk and wisbecharea health authority [1986] a.c. 112 (h.l.), discussed [1986] grim. l.r. 113. 149 the denning law journal consider a doctor who provides contraceptive advice for a girl under sixteen, knowing as he may well do, that his advice will facilitate or encourage sexual intercourse between her and a man. the man commits an offence. the house of lords has told us that the doctor's advice is lawful if the girl has capacity to consent and understands the advice and he believes it to be necessary for the physical, mental and emotional health of the child. if the advice is lawful, the doctor cannot be committing a crime. yet all the usual conditions for liabilityas an aider and abettor seem to be satisfied. generally, it is enough that the defendant knows that his act will assist or encourage the commission of the offence; and it is no answer that he has an unimpeachable motive, or that the offence would be committed anyway or that the encouragement is given through an innocent agent. the house, in my opinion, has propounded a new justification for conduct which would otherwise be criminal. i point this out, not to criticise the result; rather the contrary. it is essential that the courts should be able to consider the social, ethical and public policy issues involved and to reach the conclusion which, in their opinion, these considerations dictated. i have not, in this lecture, even mentioned the difficulties involved in the enactment of a criminal code. i know these to be enormous. what i have tried to do is to persuade you that it would be worth making considerable effects to overcome them. 150 the woolsack and the winding stair c. g. hall'*' lives of the lord chancellors 1940-1970 r. f. v. heuston [oxford: clarendon press, 1987. 253pp. hardback £25.00] i summon to the winding ancient stair; set all your mind upon the steep ascent, upon the broken, crumbling battlement, upon the breathless starlit air, upon the star that marks the hidden pole ... i professor heuston has propelled six more lord chancellors into legal history. his tally is now 18. campbell's was upwards of 110.2 it was well nigh a quarter of a century ago when were were treated (at 63s!) to heuston's first volume3 whose subjects' tenures of the office straddled the twilight of victoria's reign and ended, with lord caldecote, two weeks before the evacuation of dunkirk. the present volume spans the thirty year period to 1970, from simon to gardiner who providentially still lives. would the latter agree, one wonders, with baron lyndhurst that heuston, like campbell, has added another terror to death? lyndhurst had then been assured that he had not been included in campbell's lives, redolent as they are generally reckoned to be with misrepresentation, practised venom, mischief but with much fun besides. the present lord hailsham cannot be unhappy that for the present no-one has recorded his notable achievements; that, at least, is the sense of his own review of heuston's work.4 but fortune confounded lyndhurst from the grave, for campbell added another volume to his series, puolished after his death, of his contemporaries lyndhurst and brougham, and their accounts are remarkable for even greater mischief and "senior lecturer in law, university of buckingham. 1. w. b. yeats, "a dialogue of self and soul" from the willding stair. 2. john, lord cambell, lives of the lord chancellors and keepers of the great sealfrom the earliest times (1845). 3. r. f. v. heuston, lives of the lord chancellors 1885-1940 (1964). 4. sunday telegraph, 19 july 1987. doubtless lord elwyn-jones would also agree. 169 the denning law journal inaccuracy. thanks to atlay in his the victorian chancellors,s and others,6 the lives of brougham and lyndhurst were re-written, the record straightened, and the majestic chronicle of the keepers of the great seal, these chief "planets of the kingdom", was taken to 1885 and a little beyond. enter professor heuston. he now is assured of his place in history; for whatever his future designs he has ensured that someone will retrieve the baton where he has left it and continue this biographical pageant of the lord high chancellors which begins, thanks to campbell, when men still revered odin, the raven, the one-eyed, and rattled their runes. heuston has no obvious grand design other than to "carry on". his object, as he tells us in his preface, is "to depict the lord chancellors ... in their legal, polical and personal lives." but to "depict" exactly how? as camera, caricature or cartoon? in oils or watercolour? as impressionist or pointillist? in monochrome or glorious technicolour? the preface of the earlier volume is a little more enlightening for campbell's industry and talent are duly noted and heuston would "indeed be happy if my work could be compared for felicity in portraiture and literary grace" with that of atlay. campbell aspired to much the same applause and yearned, without apology, for literary fame. but campbell sought also to distinguish, as bacon had done, between history and lives as well as to remark their connections with each other and with the magic of literature. "there is even a sort of romance", he wrote, "belonging to the true tale of many of those who are to be delineated, and the strange vicissitudes of their careers are not exceeded by the fictions of novelists or dramatists.,,7 he thus saw himself as a minstrel rather than a bard whose object was as much as anything else to "amuse" his readers. in this, of course, he was entirely successful for, as lord hailsham has remarked, his work became a "permanent best-seller",8 a fact of which campbell was not insensible. in the preface to the second edition in 1846 he reminded his readers "that within a few weeks after its publication [the first edition] was on every table, and almost on every toilette [and] though founded on historical records, and having solid instruction for its object, it has been as generally read as popular works of fiction." if his critics, men, as they say, who have failed in literature and art, crabbed that his style was too familar and colloquial then they only remarked what had been his purpose. for when distilling the philosophy of bacon, the judgments of nottingham or the character of clarendon why should a man adopt the language 5. (1906-1908) in two volumes. see on atlay, a.w.b. simpson (ed.), biographical dictionary of the common law (1984), pp.20-21. atlay's subjects included both herschell and halsbury but he was constrained by the fact that the former had only recently died and the latter still lived. thus heuston, supra n.3, reconsiders their 'lives'. 6. including sir charles wetherell, sometime attorney-general under wellington, who also declared, of campbell, that his "noble and biographical friend ... has added a new terror to death": see his misrepresentions ill campbell's lives of lylldhurst arid brougham (1869), p.3. 7. see preface to the first edition. 8. supra n.4. 170 the woolsack and the winding stair of the censor rather than that "which he might with propriety adopt if he were telling it in good society by word of mouth?,,9 but campbell had also a much more serious purpose to trace the history of our constitution and jurisprudence through the biographies of those who kept the king's conscience, his courts and, in earlier times and in his absence, even his kingdom; and their examples would serve "to excite the young student of the law to emulation and industry, and confirm in his mind the liberal and honourable maxims which ought ever to govern the conduct of an english barrister.,,10 thus campbell repaid his debt to his profession. professer heuston is wisely more modest than campbell but it would surely not have been inappropriate for him to have marked the occasion by some reference to the historical and jurisprudential mantle which he has assumed, given its pedigree, rather than to convey merely the idea of a series of potted biographies of famous and influential men in date order. true, there is an excellent introduction which, though less "readable" than that in the earlier volume, does consider in a sophisticated way the qualifications, appointment, dress, duties and stipend of lord chancellors and other related matters; but that is not quite the same thing. nevertheless, these biographies, of simon, jowitt, simonds, kilmuir, dilhorne and gardiner, do implicitly project a view of history which campbell and other nineteenth century historians and biographers would have approved. "history", said carlyle, "is the essence of innumerable biographies." 11to him, the history of the world was but the biography of great men and though today this dictum may be old fashioned it is not inevitably disreputable provided, at least, that the theory behind it does not amount to purveying tittle-tattle or mere "interests inspired by the eccentricities of individual characters.,,12 disraeli summarised the idea neatly in the phrase "life without theory". 13it is hard to disagree with c. v. wedgewood that "the behaviour of men as individuals is more interesting ... than their behaviour as groups or classes"; 14and if following the vagaries of fortune upon the lives of great men is indeed a historical fallacy, it is shared also in the legal world by those such as holdsworth in his some makers of english law. whether in this second volume heuston does deal with the lives of great men may be doubted but the fact remains that they did, for good or ill, in their different ways, make "right or wrong for us and for our children".t5 * * * * * * * * 9. campbell, preface to the second edition. 10. preface to the first edition. 11. on history. 12. acton, home and foreign review (1863), p.219. 13. colllan'ni fleming, ch.23. 14. the king's peace (1955), p.17. 15. pollock and maitland, history of english law (first edition), vol. ii, p.870, of the men who gathered around pateshall, raleigh and bracton at westminster. 171 the denning law journal the reader will not find in these six vignettes a more, a bacon, an eldon, or even a campbell. simon, the man with the "marble smile", who held all the great offices of state, save that of prime minister, refused the woolsack at the age of 42 (in 19l5) but accepted it 25 years on and thus combined dazzling legal and political careers. he, perhaps, promises greater prominence in a later age but not, sadly in heuston's scheme. his "life" is proscribed with a pauper's share of 25 pages. of his "remarkable series of magisterial judgments in the house of lords and the privy council,,16 heuston tells us nothing, save that they were "superb", striking in "scale and distinction" and that, in an eloquent phrase, they were delivered "in the english style which is characteristic of simon as transparent and cool as a mountain stream.,,17 there is a very balanced account of simon's intervention in attempting to secure some modification of atkin's powerful speech (dissenting) in liversidge v. anderson,18 an appeal over which simon did not preside.19 to some commentators, his action has been characterised as sinister.2o this goes too far. for simon, in the mildest of terms, merely suggested the removal of the humpty dumpty aphorism from alice through the looking glass which atkin, in an 11 line paragraph in his 22 page speech, used to illumine why it was that viscount maugham and lords macmillan, wright and romer were proposing, in his view, to stand the english language on its head. this, simon considered, might cause unnecessary offence to them.21 he made no comment upon atkin's arguably more insidious jibe at his colleagues that the arguments he had heard "might have been addressed acceptably to the court of king's bench in the time of charles 1.,,22 though a fellow of all souls and despite friendships with goodhart and winfield, simon thought that academics as a breed were unfitted for public life since they lived in complete seclusion "and have no contact with the world".23 it is hard to imagine goodhart, at least, as an academic trappist. this lord chancellor preferred politics to law but he was not a natural leader. they keynote of his years at the foreign office (1931-1935), which witnessed the rise of the dictators, was abstention "from any hint of action" and to "keep out of trouble ... at all costs,,24 and viscount simonds remarks in his 'recollections' that simon lacked confidence in his own judgment, for ever seeking in deliberative councils a familiar supportive "nod" from colleagues, even junior ones: "in a word he did not lead or 16. hailsham, supra n.4. 17. at p.s8. 18. [1942] a.c. 206, at p.22s. 19. see geoffrey lewis, lord atkin (1983), pp.132-is7; r.f.v. heuston, "liversidge v. anderson in retrospect", 86 l.qr. 33 (1970). 20. see, e.g., r. stevens, law and politics (1979), p.333. 21. this correspondence, itlter alia, is quoted fully in lewis, supra n.19, at pp.139-142. the writer's view is that atkin 'comes over' as overly didactic and complacent to the possibility of error as if his dignity had been usurped. 22. supra n.18, at p.244. 23. quoted heuston, p.s7. 24. letter to the prime minister, 27th july 1934: heuston, p.so. 172 the woolsack and the wlnding stair seek to lead.,,25 it is a somewhat touching epilogue to the life of this cold and humourless man who, in maurice bowra's words, "longed to be liked" but failed, that he chose to be cremated in his d.c.l. gown. jowitt ooe-itt), simon's successor, by contrast emerges with a life of 72 pages over five "chapters"; surely, then, an olympian. but to some he lacked honour and was a "cynical legal careerist" who acted parts, used speech writers and so largely has been quite properly ignored in biographies of the period. he redeems himself, of course, in his keen support for village cricket and by the fact that he is probably the only lord chancellor to have known the difference between a gloucester old spot, a tamworth and a berkshire; truly, then, a rare breed. he was also very good at political gaffes, as heuston amply records. the best known was the curious conversion to labour on being offered the post of attorney-general by ramsay macdonald (for a long period a personal friend) in 1929 only four days after jowitt had been elected as a liberal member for preston. parallels were then and subsequently drawn with yorke, who reneged on his friends to obtain the great seal in 1770 but died shattered with remorse three days on, and also with the vicar of bray. j owitt was depicted as a traitor to his class but, having re-submitted himself to the verdict of his constituents later in 1929, at a by-election was returned with a hefty majority. but despite support, inter alios, from simon, somervell, birkett and buckmaster, the hostility endured particularly from the bar.26 jowitt's habit of looking one way and rowing another repeated itself two years on. at the general election which followed the formation of the national government in 1931 he was unable to win a combined universities' seat. but only a few months before he had strenuously argued that university representation should be abolished. the passing years saw no diminution of these powers. he remained lord chancellor after attlee's 1950 election victory and told shawcross that he was to be foreign secretary as successor to bevin. he was wrong and the incident caused considerable embarrassment. birkett was also misled over his proposed role at nuremberg .and afterwards was ignored when public honours were distributed for services rendered at that tribunal. 27 in many ways, however, jowitt was a master of political craft, what heuston refers to as his "detached attitude to political matters,,28 being an obvious virtue; as also was his demeanour in cabinet where, apparently, he spoke little and was therefore regarded as very valuable29 one of many heuston insights which betrays a thorough knowledge of the workings of less exalted forums for discussion. we must be grateful that someone has "depicted" jowitt's life, which found its "stimulus ... in the social world where mayfair and bloomsbury met".30 25. heuston, p.61. 26. the 'conversion' episode is discussed fully in r.f.v. heuston, "a lawyer in politics: an episode in the life of lord jowitt", 5 cambrian law rroiel/j 13 (1974). 27. see h. montgomery hyde, norman birkeu (1964), pp.530-531. 28. at p.114. 29. see heuston, at p.98. 30. heuston, pp.85-86. 173 the denning lawjournal to heuston, the hall-mark of a great lord chancellor seems to be his reforming zeal and, inter alia, his refusal to be "ovenvhelmed by the routine duties" of his office. there is little doubt that jowitt did preside, for a short period, over a massive programme oflaw reform, particularly of statute law, even though much of the preparatory work had been forged by others. viscount simonds was not an especially remarkable lord chancellor. the woolsack was his for only three years. he was churchill's second choice after asquith who had declined the post on health grounds. the prime minister could not remember simonds, though they had previously met, when the post was offered. and yet even 'a' level law students are familiar with his name not least because of his speech in shaw v. d.p.p. 31 where he declared, echoing lord mansfield,32 that the judges of the king's bench are the custos morum of the people; resounding stuff as we all know. a month later simonds had a stroke but he came back, in the same year, in scrutton v. midland silicones33 with undiminished force and paradoxically, but so elegantly, admonished those who in their time have appealed also to mansfield's spirit in the name of progress: "for me heterodoxy, or, as some might say, heresy, is not the more attractive because it is dignified by the name of reform. nor will 1 easily be led by an undiscerning zeal for some abstract kind of justice to ignore our first duty, which is to adminsiter justice according to law.,,34fifteen years before he had sat in the appeal in christie v. leachinsky35 and in his speech had equally demonstrated that the lyrical opulence of language and informal logic may be sublimated, without affectation, even in the law: "blind, unquestioning obedience is the law of tyrants and of slaves; it does not flourish on english soil.,,36given simonds views on privity what would this big, bluff squire, who had obtained a first in greats and who, as he said, was "not over-awed by the presence of a butler and footman",37 have made of the reasoning in the eurymedon38 and its spawn the new york star?39 with his "neat and tidy mind", in lord wilberforce's phrase,4o not much one imagines. of the lord chancellors since 1885 only halsbury (98) and maugham (92) have lived longer than simonds (90). it is not surprising, therefore, to find that in his eighties he should have given a passing reflection to his role in history: "i suppose that at some future date there will be a successor to atlay and professor heuston who will write the lives of the chancellors from 1940 onwards and 1 daresay he will not find much good to say about me.,,41 one is constrained to say that in heuston's scheme of 17 pages simonds was right. 31. [19621 a.c. 220, 261 especially at pp.266-269. 32. r. v. de/ava/ (1763) 3 burr 1434,at pp.1438-1439. 33. [1962] a.c. 446, 465. 34. ibid., at p.591. 35. [1947] a.c. 573, 590. 36. ibid., at p.591. 37. heuston, p.141. 38. [1975] a.c. 154. 39. [1980] 3 all e.r. 257. 40. heuston, p.145. 41. heuston, p.157. 174 the woolsack and the winding stair in 1942 churchill made david maxwell fyfe solicitor-general. in 1951 he made him home secretary. in that capacity he refused, in the winter of 1952, to recommend the use of the royal prerogative to save from the gallows the 19 year old derek bentley who with a 16 year old youth, christopher craig, had murdered a police officer. craig had fired the fatal shot. at the time of the shooting, bentley had already been in the custody of a courageous policeman, sergeant fairfax, who was later to be awarded the george cross, for some 15 minutes. an illiterate and grade iv mental defective, bentley offered no resistance to fairfax who, despite a wounded arm, still managed to use him as a shield. craig was determined to avenge his brother who, two days previously, had been sentenced to 12 years for armed robbery. so for him a policeman had to die. he was undoubtedly the ring leader. he had the gun. bentley had only a knuckle duster. he told fairfax, "i told the silly ... not to use the gun." craig, being under 18, though the perpetrator of the murder could not be hanged. for bentley the jury recommended mercy but despite demonstrations in the streets, which led to a doubling of the police guard at his flat in gray's inn, and a massive condemnation in the country and the house of commons, maxwell fyfe remained unmoved and allowed justice to exact her due. as heuston remarks,42 only dilhorne would have also displayed a like determination, obstinacy and courage. simon and jowitt would have contrived to side-step the issue and run for cover. the home secretary had already demonstrated his tenacity at nuremberg where he was shawcross' 'junior' but stole the limelight in his cross-examination of goering who had previously confused and up-staged justice jackson, the american prosecutor. in all his public affairs maxwell fyfe was thorough and conscientious. his paper work, though dull, always left his cabinet colleagues ready to move on to the next item. eighteen months after the bentley case he succeeded simonds, as viscount kilmuir, on the woolsack for what was to prove the longest tenure of the lord chancellor's officer eight years in the period from simon to gardiner. that ended abruptly in 1962 with macmillan's "night of the long knives" which left kilmuir very offended, even bitter; for he had ever been an intensely loyal and energetic party man with a considerable zest for politics and did not see why he also should be sold as a hostage to selwyn lloyd's unhappy fortune. sadly his judicial activities were not equally striking. every law student has suffered the obscurities of d.p.p. v. smith;43 but kilmuir's speech was, it is said, drafted by lord parker ofwaddington.44 with his abundant common sense and absence of unction kilmuir found no fun in the sophisticated paradoxes and dilemmas engendered by reflections on legal concepts. perhaps this is why in his eight years he sat in only 24 appeals. but in his informal moments he was zealous in his attendance at soirees organised by glamorous, intelligent and patrician society hostesses: "to the celt, looking in from the outside darkness through the windows which framed the splendour of english political life, there was something 42. at p.169. 43. [1961] a.c. 290. 44. heuston, p.l75 n.8. 175 the denning lawjournal very satisfying about being on first name terms with the cecils and the cavendishes.,,45 it is a special pleasure for this reviewer to note that members of the francis bacon society still recollect with gratitude kilmuir's contribution at the dinner in gray's inn hall in 1961 held to commemorate the fourth centenary of francis bacon's birth.46 the lord chancellor proposed the principal toast, "the immortal memory of francis bacon", and in his speech remarked how "no lord chancellor can look over the arches of the 1,366 years of his office ... without seeing the mental power of bacon stand out from among us like a sudden mountain peak in a range of grass covered hills." later he considered why it was that bacon had so persistently importuned burghley and james for office and, in doing so, gave a signal of his own motivation in politics: "i think the explanation is that those of us who have the political virus, who have the love for what f. s. oliver called the endless adventure of the government of men, must always be considering not only our political ideals and aims but the means of putting some of them into effect. in oliver's words our eyes are not always fixed on the millenium or on the end of our noses but some way between." whereas simonds' estate had been sworn for probate at £305,279, the largest sum left by any lord chancellor since eldon, kilmuir modestly, perhaps cannily, left a mere twenty odd thousand. viscount dilhorne, reginald manningham-buller, was not a humble man. he was irritable and insensitive to the feelings and failings of others qualities which are sometimes to be found in mediocre men who have reached, as they suppose, exalted positions. lord devlin's assessment in easing the passing (1985) on the bodkin adams case is now notorious. to devlin, "what was almost unique about him and makes his career so fascinating" is that he achieved what he did "by making himself disagreeable.,,47 dilhorne keenly admired lord goddard: "he did not suffer fools gladly but then why should one?,,48goddard himself would not have been unhappy to see manningham-buller succeed him as lord chief justice, but the latter was, apparently, "an unsaleable product".49 but even if dilhorne did turn arrogance into an art form, he was possessed of extraordinary energy and loyalty to his party and was genuinely motivated to be of honest service to the state. as attorney-general he gave clear and emphatic advice and so was highly regarded in government circles. some said he was the best law officer the conservative party had produced since the first viscount hailsham. as lord chancellor he was the first to give a woman her chance when promoting elizabeth lane to the county court bench. he also advocated wider membership of the judicial committee of the privy council, with the result that judges from 45. heuston, pp.162-i63. 46. the proceedings are reported in baconiana lxv (march 1962). 47. easing the passing, p.39. 48. heuston, p.189. 49. heuston, p.193. 176 the woolsack and the winding stair nigeria and the antipodes were appointed. though in his two years on the woolsack he presided in only seven appeals, as law lord in the period 1969-1980 he sat in more than 200. his judgments "will not figure in any anthology of english prose,,50 but in quality they are every bit as 'legalistic' as those of others whose sole preoccupation has been the law albeit with a tendency to become mere digests. but then his professional pedigree was impeccable. coke, some of whose less pleasant foibles dilhorne shared, was one of his ancestors. sir francis buller,s! who had become a judge of the king's bench at 32 and whose buller's trials at nisi prius achieved seven editions, was another. by birth dilhorne was a buckinghamshire man. later he resided at greens norton court, near towcester, in northamptonshire. his family was of the 'hunting, shooting and fishing' variety and his father had been mp for kettering. his "was not an intellectual household".52 the manningham-buller cup, which dilhorne had presented to his constituency conservative clubs in 1952, remains the subject of fierce competition within the ten clubs still struggling to secure that particular laurel in those 'manly' pastimes snooker, darts, dominoes and cribbage.53 it was entirely appropriate that dilhorne, whom macmillan had determined should have his "turn before the end",54 should have died so suddenly in 1980 after a day on a scottish hillside. as dilhorne was to coke so was gardiner to bacon.55 gardiner represented cosmopolitan charm and reforming passion. his "appearance and conversation were unmistakenly those of someone born before the first world war into the english upper classes.,,56 at oxford he had been editor of isis and later, despite a rapidly increasing practice at the bar, he trod the boards with the windsor strollers and the canterbury old stagers. in the 'sixties his sole recreation was "first-nighting", followed by a late dinner in soho. he also assiduously attended meetings dedicated to good causes. he wrote learned articles and case notes in the law quarterly review and other journals and so continued a tradition among judges which denning had nurtured, much to jowitt's horror, with his hamlyn lectures.57 in the fifties he was very fashionable and played his part in several cases which captured the nation's attention the libels involving evelyn waugh and "the singer liberace" (sic), the etu case, which concerned communist infiltration of that union, and, of course, the lady chatterley's l(fl)er case. gardiner was a 50. heuston, p.199. 5 i. 1746-1800; see simpson, supra n.5, pp.87-89. buller also seemingly shared coke's characteristics. 52. heuston, p.184. 53. buckingham advertiser, 7th august 1987. 54. letter to kilmuir, 15th july 1962: heuston, p.i77. 55. obviously this remark is intended to be complimentary. it is sad that even a lord chancellor and a former master of the rolls should have yielded to the conventional campbelvmacaulayl abbott view of bacon's fall thereby ignoring all research in the period since spedding: see howe [1987] a.c. 417, at pa31 (bacon "a greater moralist perhaps in theory than in practice") and lord denning, landmarks in the law (1984), pp.32-34. 56. heuston, p.207. 57. freedom under the law (1949). 177 the denning law journal formidable and charismatic figure with the actor's gift, so well practised by alec guinness, of conveying intense emotion with a minimum of gesture. he was elevated to the woolsack directly from the bar, confuting the arguably stronger claims of soskice and donovan. his political experience had been forged in the folds of the haldane and fabian societies, those pot-pourris of the airy-fairy and beer and sandwiches. to give him political experience wilson had recommended a life peerage in december 1963, though when, the following year, the woolsack was offered he had still only met gardiner on three occasions. to crossman, gardiner was "utterly remote from the realities of politics". 58 but with wilson's support he vigorously set about determining "how large and effective the role of the lord chancellor in the field of law reform could be made to be,,59 with what majestic results the world knows. as lord hailsham has recorded60 his "chief monument", amongst his vast schemes for reform, will doubtless be the creation of the law commissions; and so it was through gardiner's hands that one of bacon's own grand ambitions for the reform of "snaring" laws, conceived some 350 years before, was finally realised. * * * * * * * * any biographer or reviewer of biographies must surmount certain procedural and substantive hurdles of which the ordinary reader will probably be insensible. the gradgrinds of this world who want nothing but facts are easily satisfied, save that even here the biographer may be faced with apparently insoluble puzzles. for example, the records show that kilmuir was born at 60, morningside drive, edinburgh. a pilgrimage to that place reveals that there is no no. 60. are the records wrong? was the house pulled down? have the houses been renumbered? or again, on a similar jaunt to withyham to view kilmuir's commemorative plaque on the north wall of the church of st michael and all angels, our biographer finds, confounding all the public records, that kilmuir was lord chancellor from 1953 not 1954; a stonemason's error, a quirk of memory in the family or what? to rely on the evidence of observation could prove fatal to credibility and even the photograph of the plaque pronounced a forgery. there are other sorts of evidence which must be duly sifted and weighed. the memoirs of contemporaries, a rich source for anecdote and appraisal, may be faulty through the fallibilities of memory, bias, sycophancy or spleen. what the soldier said is not evidence after all. what does one do with all those state papers accumulating dust but recording simon's years of inactivity at the foreign office? how does one avoid the biographer's curse, macaulay's lues boswelliana or disease of admiration? and what of the 'warts' in a man's character when he still lives or when what one says may offend the family? and then there are the publishers who cage the work of 58. heuston, p.218 n.2. 59. heuston, p.226. 60 supra n.4. 178 the woolsack and the winding stair twenty years, and six men's lives, with word limits in the name of economic restraint and profit margins. within those parameters how is the relative value of 'lives' to be measured? does one titillate with famous trials or diminish the significance of a man's life in the law to capture a wider, perhaps more selective, collective imagination? as historian does one set the subject against a backcloth of 'problems' or 'periods'? given all this, it would be too facile to dismiss the present volume as a series of rather slight sketches "hardly worthy of its predecessors".61 true, a butcher's knife rather than a proof reader's pencil could well be taken to those numerous irritating typographical errors in the text. for lawyers the extra "space" mysteriously made available to professor heuston by the publishers62 might have been employed to give a more prominent sense of chiaroscuro to the legal 'philosophies' of these lord chancellors or, if their lives did not warrant it, at least a separate section on the leading judgments as in the earlier volume. occasionally professor heuston might have considered gentle pruning. if, for example, lord widmerpool in powell's a dance to the music of time was not based on the character of dilhorne why flaccidly instruct the reader that "casual resemblances of this kind often occur in novels"?63 perhaps it adds little to the profundity of even personal history to say that simonds' younger son, sadly killed at arnhem, had "before his death ... married barbara (robinson), widow of fo a. j. willock (who married thirdly dr angus mcpherson).,,64 and what does the discerning reader make of the assertion that "in appearance and manner jowitt was a great lord chancellor"?65 but these are little carping things often a matter of judgment and not to be taken too seriously. for this volume has all the qualities which made its predecessor such effortless reading balance, scholarship, eloquence and humour all things of which campbell devotees would approve. in the balloting of contemporaries, lord pearce, it is worth saying, comes over particularly well not least for his delicious cartoon of the law lords in woods v. duncan,66 before whom he had argued for the respondents and whose roll had recently been increased by the addition of simonds: "they looked like a rembrandt, so old and remote and learned, and gavin (though silent, while simon, presiding, talked 'clever' stuff) looked like some superimposed figure painted in by franz hals so eager and vital and robust and down to earth.,,67 61. ibid.. 62. see preface. 63. heuston, p.185. 64. heuston, pp.142-143. 65. heuston, p.126. 66. [1946] a.c. 401. 67. to heuston, quoted p.146. the 'rembrandt' figures were viscount simon and lords russell, macmillan and porter. 179 the denning law journal there is much here, in the introduction and the 'lives', to inform and stimulate reflection upon the office of lord chancellor which in our unwritten constitution so cocks a snook at the doctrine of the separation of powers. no formal qualifications are necessary for the office save capacity to swear the oath of allegiance and the official oath and yet our present day lord chancellors are required to head the judiciary, serve as speaker in the house of lords and cabinet member as well as minister in charge of a large government department. things seemed simpler in the old days for this first subject of the realm after the archbishop of canterbury. he did not then even have to be a lawyer. heuston cites the case of chancellor booth in 1473 who was formerly bishop of durham but who, as lord chancellor, was so incompetent "doing nothing" that he was packed off to the archbishopric at york 10 months on. at least a grudging mention might have been given to lord keeper williams, formerly dean of westminster and part architect of bacon's fall from grace, who also had no legal training but who fared much better than booth. he stayed the course for four years, the last ecclesiastic to hold the great seal, before being bundled back to his bishopric at lincoln.68 an interesting question which heuston raises but does not fully explore is the origin and fortune over the centuries of the concept that the lord chancellor is the 'keeper of the king's conscience'. we still say that he is, though two lord chancellors have said that the phrase is now meaningless.69 one possibility is that the idea originates from the ecclesiastical character of the mediaeval chancellors and the role of the early incumbents as chaplain to the king. presumably, then, the concept ceased to be meaningful with williams' fall in 1625; in which case it is surprising to find that it lingered on for three more centuries. another is that the phrase relates to the chancellor's equitable jurisdiction in the court of chancery, where the king's conscience was dispensed rather than his law. neither theory squares with the diverse functions of the lord chancellor who 'kept' the great seal and the king's conscience. a third possibility, which is consistent with the duties of lord chancellors in different ages, is that the chancellor was a perhaps the principal professional and personal adviser of the crown, a keeper of seals but also of secrets and so of consciences. in this role he might even act as prime minister as clarendon did, though the last to do so. the chancellor's oath sworn as late as stuart times reflects this idea in that he was required "truly to counsel the king and his counsel to conceal and keep.,,7o nowadays the lord chancellor is required to swear an oath of allegiance, a judicial oath (which incorporates aspects of the old lord chancellor's oath) and, on being admitted to the privy council, a further oath in which the privy counsellor swears to be a 68. 16 years on williams was also appointed archbishop of york and so likewise eventually took only one formal step down the league table of precedence. laud was then under impeachment in the tower and so williams was placed, de facto, at the head of the church of england. 69. sec heuston, p.5 n.7 (lord hailsham and viscount simon). 180 the woolsack and the winding stair "true and faithful servant unto the queen's majesty" and is enjoined to "faithfully and truly declare your mind and opinion according to your heart and conscience; and will keep secret all matters committed and revealed unto you.,,71so in this last oath we have the final vestige of the chancellor's ancient role of one who, above others, advised the king in his need and kept those personal and state secrets entrusted to him. such obscurantist by-ways apart, there are other insights which heuston provides interstitially in his roll call of these "pale unsatisfied ones" who stood "on the highest pavement of the stair". some painstaking cypher work plus casual surveillance will disclose a good deal for those who have set their minds upon the ascent to that place. what follows may serve, even in play, as a suitable glass. to begin at the embryo stage. despite the predictions of astrologers there is no especially propitious month to signal the birth of a lord chancellor. a genius like bacon might well run true to form in the sign of aquarius but none of heuston's 18 chancellors had that benefit and only two halsbury and maugham were covenanted under the favourable signs of virgo and libra. the rest are evenly scattered in ones and twos across the zodiac chart save that the latter part of february and most of march has proved moderately promising in pisces which has proferred its protective cloak and, if the astrologers are right, much imagination but also some emotional instability on four incumbents.72 birth at the beginning or end of a month would seem auspicious. dilhorne, halsbury, herschell and loreburn entered this world in the first three days; six of the eighteen on the 28th, 29th or 30th.73 naturally, these omens are for ambitious parents only. it is for providence to explain the birth-death sequence of simonds and herschell who were born and died on the same date though in different months.74 it is essential for the aspirant to set his sights on oxford. all the subjects of this volume were there, at what are generally reckoned to be the 'better' colleges, and seven of the 12 in the earlier volume. of the remaining five, poor cambridge has only managed two (maugham and caldecote) along with edinburgh (finlay and haldane). herschell read classics at university college, london. hailsham spent his formative years on the family sugar estate in british guiana. once at oxford, it is clear that academic prowess is not a condition precedent for the wo~lsack. the statutory mediocrity of the 2:2 might have proved an irritation to kilmuir and dilhorne, who obtained thirds, and gardiner who was placed into the fourth class. equally, neither does brilliance preclude, for jowitt obtained a first in law as did simon and simonds in greats. if examination pressures lead to what some students call "brain fag", the aspirant should not be unduly perturbed; even 70. see, e.g., judge jenkins' plea to the commons, 14th february 1647 in terry, judgejmkills (1929), pp.152-153. 71. these oaths are usefully reproduced in heuston's appmdix of doculllmts. 72. cave, caldecote, hailsham and simon. 73. haldane, hailsham, simon, simonds, kilmuir and gardiner. 74. finlay and jowitt miss the sequence by only one day. 181 the denning lawjournal buckmaster with his second suffered from it. his brain, he said, "simply refused to perform its functions".75 when faced with the choice of an inn, gray's should almost certainly be avoided. seemingly only three lord chancellors in history, bacon, birkenhead and kilmuir, have ornamented its walks. by all means enrol at inner or lincoln's, the choice of 13 of heuston's subjects. a political baptism is not essential, as simonds' and gardiner's lives amply demonstrate, but without it, as has been seen, a newly appointed lord chancellor is apt to be considered, paradoxically, an 'innocent,76 which though a divine virtue is apt to be construed as synonymous with being politically inept. however, a man's esteem at the bar is likely to rise in inverse proportion to his political commitment; lord goddard, for example, considered kilmuir an ill-advised choice because too 'political' in his approach to legal matters. whichever way the stairway leads physical stamina and application are essential. kilmuir and dilhorne were outstanding in this regard.77 whatever his critics may say, dilhorne cannot be faulted in his appetite for work whether as lord chancellor or in his i i taxing years as solicitor and attorney-general. an obituary notice in the times reported: "it was not unusual to find him, when all had gone home, working in the small hours in his room just off the central lobby, a pipe firmly in his mouth, alone, and unmoved by the hour of the night or the fatigues of the day in court and in the house, that would have exhausted a less robust man.,,78 not that the aspirant should eschew sports and pastimes. dilhorne only just missed a blue in rowing; jowitt was a connoisseur of cricket, pigs and sheep and the arts; gardiner of good causes and the theatre; simon of ice-skating and golf. it is a good thing to have a plan for the top. ideally it should not be published for overt "careerism" may be regarded as vulgar. kilmuir determined to take silk in his thirties, to become a cabinet minister in his forties and reach the apotheosis of the legal profession in his fifties and, of course, he did it. simon, who really did do everything he needed to do by the age of forty, knew well what he was about when he refused the woolsack in 1911 for that would have ended his political dreams. as has been noted, once on the woolsack it might be considered precocious to preside over too many appeals. whether from an undue regard for the doctrine of the separation of powers or simply from the pressure of other work, jowitt, simonds, kilmuir, dilhorne and gardiner were impeccable in this respect. and there are clear risks in other than a conservative approach to the judicial function. social therapy, what viscount dilhorne referred to as "adjusting the common law to what are thought to be the social norms of the time,,79 and bacon characterised as the "idols of the tribe", is to be totally shunned in a judicial capacity. but 75. heuston, mpra n.3, p.248. 76. kilmuir's description of simonds, hcuston p.149; and if. crossman on gardiner, supra n.58. 77. see heuston, pp.164, ]88. 78. heuston, p.] 88; if. carlyle: "genius" means "transcendent capacity for taking trouble, first of all" (frederick the great, book iv, ch.3). 79. broom v. cassell fs co. ltd. []972] a.c. 1027, 1i07. 182 the woolsack and the winding stair politically by all means extol the virtues of reform for at least biographers will see in that, perhaps quite rightly, a mark of greatness. a majestic presence and ease of manner coupled, naturally, with "enormous dignity" or grtwitas may be helpful, as in jowitt's case; and two friends of the writer have independently remarked that kilmuir and gardiner are to be especially remembered for the laser-like luminosity of their eyes. 'niceness', characterised by lord gardiner, is not an obvious prerequisite. dilhorne needs no further comment but even simonds did not take kindly to being contradicted and "he was too apt to interpret opposition as an insult to himself or the office which he held."so simon could be "elaborately polite" to juniors who made acceptable suggestions and to the "children of the upper classes who could not be his rivals" but he could also be "blisteringly rude in public to those whom he regarded as his inferiors."sl all this, however, is to be cultivated in the name of 'character'. without it one is apt to be seen, like gardiner and perhaps jowitt, as overly "detached" and so "unapproachable". 'political' lord chancellors of an earlier generation seem to have nurtured the art of flattery to a high degree. some of simon's utterances could have been spun at the court of the first elizabeth. so when chamberlain proposed to fly to munich to meet hitler in september 1938 sir thomas inskip, later himself lord chancellor for eight months, in cabinet recorded that "john simon finished by his usual shower of compliments to p.m . . . . they give an impression of soapiness and flattery ... 'brilliant' ... his absence 'grievous' even for 48 hours. if he came back with seeds of peace with honour 'a remarkable achievement' and so on.,,82 provided constitutionally robust in early middle age, the aspirant should not concern himself that the rigours of office will shorten his earthly span as compared with other men. the fact is that lord chancellors do seem to live a little longer than most. from halsbury to caldecote their average score was 76 years and 10 months; from simon to dilhorne, 77 years and one month. halsbury was 'out' only two years short of his century and five others in the period reached the 80s and 90s. only birkenhead and herschell did not reach conventional retiring age. for some reason, these days lord chancellors prefer cremation.s3 the writer must issue one final and very serious warning. lord chancellors out of office tend to frustration, disenchantment, even bitterness. simon thought himself a failure never to have become prime minister. to his sister jowitt, out of office, wrote: "i must confess just at the moment i feel that the bottom has quite fallen out of my market. i've given myself completely to my office. it's been my life and enshrines all my interests ... i feel a lost soul just for the time being ... it all sounds like the lament of job from the bottom of the pit ... though i am called 80. heuston, p.150. 81. heuston, p.40 82. heuston, pp.52-53. 83. loreburn and buckmaster began the fashion which was revived and continued successively from simon to kilmuir. 183 the denning law journal upon to surrender the seals no one can call upon me to surrender the memories.,,84 simonds was an embittered man when he was forced to surrender the seals to maxwell fyfe, "one nearly 20 years his junior for whose attainments as a lawyer he had little respect.,,85 eight years on the same fate befell kilmuir who was equally resentful. there is something, then, in rosebery's warning that it is better for a man to aim at being lord chief justice since, though the position of lord chancellor is dignified while it lasts, it does not last longer than a change of government, an ex-lord chancellor being merely "a shabby old gentleman with £5,000 a year.,,86 so a sense of proportion and detachment are indispensible qualities in readiness for this moment of personal crisis. though the office carries "whispers of immortality", the aspirant must ever carry with him the simple thought that "in a moment there is time for decisions and revisions which a moment will reverse" and a measured palliative for undue self-importance of a kind which prufrock also recognised: "no! i am not prince hamlet, nor was meant to be; am an attendant lord, one that will do to swell a progress, start a scene or two, advise the prince; no doubt an easy tool, deferential, glad to be of use, political, cautious, and meticulous; full of high sentence ... " in bacon's words in the essay of great place, all rising is by a winding stair. it is a laborious climb beset with pains. the standing is slippery and the regress is either a fall or other eclipse which is "a melancholy thing". despite its minor blemishes and its daunting price, professor heuston's second volume of chancellors contains an abundance of riches not least, in spite of itself, the realisation that plato's ghost had a point when, despite all those things "to perfection brought", he louder sang "what then?" 84. heuston, p.124. 85. heuston, p.156. 86. heuston, p.5. 184 the university of buckingham i editorial introduction: magna carta edition i am delighted to announce the publication of our magna carta 2015 special edition of the denning law journal. each of our contributors has explored the impact the foundation stone of magna carta has had on the development of human rights principles cast in pillars of eternity and owing in no small part to the magna carta and the movement for reform. magna carta has etched its legacy into the contemporary living instruments of our law as indeed has the judgments of our patron lord denning himself. many law schools publish their own law journals. in the united kingdom, these are often edited by faculty staff. at the university of buckingham, the law school staff edit and publish an annual journal – the denning law journal (external link). it is named after the most famous and influential judicial figure of the century 20th century, lord denning (1899 – 1999). he was a made a judge at 45 years of age and was promoted to the court of appeal [a mere] four years later. his judgments were always lucid. simple words were the tools of his trade, communication and persuasion, in simple speech and not flamboyant gestures. in his book the discipline of law he said, “to succeed in the profession of the law, you must seek to cultivate command of language. words are the lawyer‟s tools of trade. when you are called upon to address a judge, it is your words which count most” (butterworths 1979, p 5). he had a unique style of judgment writing, a master of evocative story telling. „it was bluebell time in kent‟ formed part of the opening of his judgment in a case of death and personal injury witnessed by mrs hinz (hinz v berry [1970] 2 qb 40).when he died in 1999 the then lord chancellor, lord irvine of lairg, said: “the name denning was a byword for the law itself. his judgments were models of simple english which ordinary people understood.” he stood for the interests of fairness and justice. lord denning was an enthusiastic supporter of the fledgling university at buckingham. it seemed natural when the journal was founded in 1986 to name it after him. we were greatly honoured when he consented to the use of his name. when he celebrated his 100th birthday in january 1999, more than 170 lawyers and judges gathered at the university of buckingham for the denning centenary symposium. the denning law journal is a refereed journal. the aim is to provide a forum for the widest discussion of issues arising in the common law world and to embrace the wider global and international issues of contemporary concern, both of which lord denning would have approved. he also recognised the importance of: developing the common law http://www.denninglawjournal.com/ the denning law journal ii the need for judicial and community recognition of the urgency of reform and modernisation of law the need to preserve the traditions of judicial independence, integrity and creativity reflecting upon the interplay between law and morality the role to be played by the law in the defence of the individual in the modern state. as lord denning said, “if we never do anything which has not been done before, we shall never get anywhere. the law will stand still whilst the rest of the world goes on; and that will be bad for both” (packer v packer [1954] p. 15 at 22). the denning is the product of the hard work of many hands and in particular i would like to acknowledge the efforts of the editors, student editors and contributors in the creation of this issue. i would also like to take this opportunity to announce that, after this volume, i will be standing down as editor of “the denning”. for ten years of often challenging but ultimately very rewarding hard work it is time to hand over. i am pleased to announce that dr james slater and dr carol brennan will be taking over as joint editors for the 2016 volume. i will continue to make a contribution as a reviewer and author but wish every good fortune on my successors. susan edwards editor the denning law journal 189 denning law journal 2019 vol 31 pp 189-197 legal practitioners as potential money launderers: beneficial ownership transparency and peps: solicitors regulation authority v sharif (2019) john hatchard * * professor of law, buckingham law school, and co-director of the university of buckingham centre for extractive energy studies. 1 for an interesting discussion, see a hamman and r koen, ‘cave pecuniam: lawyers as launderers’ [2012] per 49. 2 solicitors regulation authority v sharif case 11805-2018 (solicitors disciplinary tribunal, 2019). 3 it must be emphasised that the establishment of such companies is entirely lawful. as noted below, it is the requirement that a solicitor addresses the risk as to whether such transactions are to be used for money laundering purposes that was in issue in the sharif case. legal practitioners enjoy a high degree of credibility and trust. with this comes vulnerability. for example, a solicitor’s trust account may be used by criminals through which to launder their proceeds of crime.1 the need to maintain public confidence in the profession remains of paramount importance and it follows that substantial reputational harm can occur where there is a risk that legal practitioners are being used (wittingly or otherwise) to facilitate money laundering. the january 2019 ruling of the solicitors disciplinary tribunal in solicitors regulation authority (the applicant) v sharif (the respondent)2 highlights the care that legal practitioners must take in order to satisfy their anti-money laundering (aml) obligations and the serious consequences of any failure to do so. it also throws light on the use made of the notorious panama-based law firm mossack fonseca in establishing offshore companies as vehicles for purchasing real estate in the united kingdom (uk) and thus concealing the beneficial ownership of the property.3 this note provides a background to the anti-money laundering (aml) obligations of legal practitioners, examines the decision in the sharif case itself and then discusses some of the key issues raised. 190 legal practitioners as potential money launderers: beneficial ownership transparency and peps the aml obligations of legal practitioners the financial action task force (fatf) recommendations4 contain a series of well-known money laundering preventive measures. these apply both to financial institutions and to ‘designated non-financial businesses and professions’5 (dnfbps), a term that includes lawyers, notaries and other independent legal professionals. for example, recommendation 10 requires these bodies to undertake a series of customer due diligence (cdd) measures that include know your customer (kyc) requirements, e.g. verifying the identity of the customer and beneficial owner before or during the course of establishing a business relationship or conducting transactions for occasional customers. in doing so, the fatf recommendations emphasise that countries must require financial institutions and dnfbps to adopt a risk-based approach to mitigate their money laundering and terrorist financing risks.6 politically exposed persons (peps) are recognised as posing a heightened money laundering risk. a pep is defined as: i. a person who is or has, at any time in the preceding year, been entrusted with a prominent public function by a state other than the uk; an eu institution; or an international body; ii. an immediate family member of anyone listed in (i) above; iii. a known close associate of anyone listed in (i) above.7 the fatf has noted that ‘due to their position and influence, it is recognised that many peps are in positions that potentially can be abused for the purposes of committing money laundering offences and related predicate offences, including corruption and bribery’.8 thus when entering or maintaining business relationships with peps enhanced due diligence (edd) measures are required. these are purely preventive in nature and do not ‘stigmatise peps as being involved in criminal activity’.9 4 the fatf is an intergovernmental body with a mandate, inter alia, to set standards for combating money laundering. these are set through the financial action task force, ‘international standards on combating money laundering and the financing of terrorism & proliferation’ (fatf, 2012, updated 2018) <http://www.fatf-gafi.org/publications/ fatfrecommendations/documents/fatf-recommendations.html> accessed 10 june 2019. 5 ibid., recommendation 5. 6 ibid., recommendation 1. 7 money laundering regulations 2007, si 2007/2157, regulation 14(5). 8 fatf guidance, politically exposed persons (paris 2013) p 3. 9 ibid. http://www.fatf-gafi.org/publications/fatfrecommendations/documents/fatf-recommendations.html http://www.fatf-gafi.org/publications/fatfrecommendations/documents/fatf-recommendations.html the denning law journal 191 fatf recommendation 22(d) states that the cdd and edd requirements ‘apply to lawyers, notaries, other independent legal professionals and accountants – when they prepare for or carry out transactions for their client concerning the following activities: • buying and selling of real estate; … • creation, operation or management of legal persons or arrangements, and buying and selling of business entities’.10 the reporting of suspicious transactions is a further part of the aml requirements. fatf recommendation 20 states that ‘if a financial institution suspects or has reasonable grounds to suspect that funds are the proceeds of a criminal activity … it should [must]11 be required, by law, to report promptly its suspicions to the financial intelligence unit (fiu)’.12 this also applies to dnfbps and hence legal practitioners. this responsibility is emphasised in fatf recommendation 23(a) which states that ‘lawyers, notaries and other independent legal professionals should [must] be required to report suspicious transactions when, on behalf of or for a client, they engage in a financial transaction in relation to activities described in paragraph (d) of recommendation 22’13 (noted above). at the time of the time of the proposed transaction in the sharif case, the fatf requirements were contained in the money laundering regulations 2007 (the ml regulations) and as regards solicitors, the solicitors regulation authority (sra) code of conduct 2011 and sra principles 2011 applied. the sharif case khalid sharif was a partner in child & child, a london-based firm of solicitors whose specialist practice area was property law. he dealt with the sale and purchase of some of the most expensive properties in london. the firm’s client base included a number of high-net worth foreign nationals. among them were leyla and arzu aliyeva (the sisters) who were the daughters of ilham aliyev, the president of azerbaijan.14 these were new clients with whom the firm had had no 10 fatf recommendation 22(d) (n 5). 11 ‘for the purposes of assessing compliance with the fatf recommendations, the word should has the same meaning as must’. fatf recommendations glossary, emphasis in the original. 12 fatf recommendation 20 (n 5). 13 ibid. recommendation 23. 14 they are referred to as ‘x’ in the ruling. their identity was revealed in the national 192 direct contact but who were introduced via an intermediary, javed marandi, who was an existing client of the firm.15 given their status, both sisters were foreign peps and therefore any business transactions undertaken on their behalf required mr sharif to undertake enhanced due diligence. the sisters wished to purchase two flats in knightsbridge, london for £59.5 million. to enable them to do so, mr sharif instructed mossack fonseca to incorporate a company in the british virgin islands (bvi). in january 2015, exaltation ltd16 was duly incorporated there with the sisters being listed as the beneficial owners.17 exaltation ltd was the intended purchaser of the knightsbridge properties.18 mr sharif was also the firm’s money laundering reporting officer (mlro). he signed the relevant cdd form in which he confirmed that normal cdd measures had been applied to the proposed transaction and also confirmed on the appropriate form that the sisters were not peps. at the tribunal, mr sharif faced several allegations concerning his failure to comply with the relevant aml requirements and that accordingly he had ‘failed to behave in a way that maintained the trust the public place in him and in the provision of legal services’19 in breach of principle 6 of the sra principles 2011. the first allegation was that he had failed to take any or any adequate steps to ascertain the status of the sisters as required by the ml regulations. at the tribunal he did not dispute that his clients were peps and admitted that that his failure to undertake adequate checks was a ‘clear omission’.20 the tribunal found the allegation proved beyond reasonable doubt. press: see, for example, luke harding, ‘azerbaijan leader’s daughters tried to buy £60m london home with offshore funds’ (the guardian, 21 december 2018) <https://www. theguardian.com/uk-news/2018/dec/21/azerbaijan-leaders-daughters-tried-to-buy-60mlondon-home-with-offshore-funds> accessed 10 june 2019. 15 referred to in the tribunal ruling as y. mr marandi was a close associate of the president of azerbaijan and therefore, himself a pep: reported in the guardian, ibid. 16 the company is referred to as ‘e’ in the ruling. 17 the link is revealed in the panama papers: see offshore leaks database, ‘leyla ilham qizi aliyeva’ (offshore leaks database, 2019) <https://offshoreleaks.icij.org/ nodes/12119990> accessed 10 june 2019. there is no suggestion in any of the documentation that the purchase monies were the proceeds of crime or that mr sharif was knowingly involved in way with money laundering. 18 after the exchange of contracts on the properties, the sisters reportedly started to pay the purchase price in instalments. they had transferred over £14.3 million before the panama papers revelations in 2016. this led to the sale ‘unravelling’ after their identity was revealed: see luke harding, ‘azerbaijan leader’s daughters tried to buy £60m london home with offshore funds’ (n 15). 19 solicitors regulation authority v sharif (n 3) para 13.6. 20 ibid., para 13.5. legal practitioners as potential money launderers: beneficial ownership transparency and peps https://www.theguardian.com/uk-news/2018/dec/21/azerbaijan-leaders-daughters-tried-to-buy-60m-london-home-with-offshore-fundshttps://www.theguardian.com/uk-news/2018/dec/21/azerbaijan-leaders-daughters-tried-to-buy-60m-london-home-with-offshore-fundshttps://www.theguardian.com/uk-news/2018/dec/21/azerbaijan-leaders-daughters-tried-to-buy-60m-london-home-with-offshore-fundshttps://www.theguardian.com/uk-news/2018/dec/21/azerbaijan-leaders-daughters-tried-to-buy-60m-london-home-with-offshore-funds https://www.theguardian.com/uk-news/2018/dec/21/azerbaijan-leaders-daughters-tried-to-buy-60m-london-home-with-offshore-fundshttps://www.theguardian.com/uk-news/2018/dec/21/azerbaijan-leaders-daughters-tried-to-buy-60m-london-home-with-offshore-fundshttps://www.theguardian.com/uk-news/2018/dec/21/azerbaijan-leaders-daughters-tried-to-buy-60m-london-home-with-offshore-fundshttps://www.theguardian.com/uk-news/2018/dec/21/azerbaijan-leaders-daughters-tried-to-buy-60m-london-home-with-offshore-funds https://www.theguardian.com/uk-news/2018/dec/21/azerbaijan-leaders-daughters-tried-to-buy-60m-london-home-with-offshore-fundshttps://www.theguardian.com/uk-news/2018/dec/21/azerbaijan-leaders-daughters-tried-to-buy-60m-london-home-with-offshore-fundshttps://www.theguardian.com/uk-news/2018/dec/21/azerbaijan-leaders-daughters-tried-to-buy-60m-london-home-with-offshore-fundshttps://www.theguardian.com/uk-news/2018/dec/21/azerbaijan-leaders-daughters-tried-to-buy-60m-london-home-with-offshore-funds https://offshoreleaks.icij.org/nodes/12119990 https://offshoreleaks.icij.org/nodes/12119990 the denning law journal 193 a second allegation was that he had failed to apply enhanced cdd in respect of the sisters and had thus failed to ‘maintain the trust the public placed in him and in the provision of legal services’.21 mr sharif admitted that he had failed to take adequate steps to do so, including by way of making appropriate internet searches.22 the tribunal found the allegation proved beyond reasonable doubt. a third allegation was that he had ‘failed to take any or any adequate steps to confirm his client’s instructions in that he had accepted instructions from y [javed marandi]’23 and that ‘his actions would not maintain the trust that the public placed in solicitors, and so the respondent breached [sra] principle 6’.24 at the tribunal, the mr sharif acknowledged that he had exchanged contracts on the property and transferred a considerable sum of money without confirming in writing with the sisters that he was authorised to act on their behalf. the tribunal found the allegation proved beyond reasonable doubt. a further allegation was that mr sharif had acted in circumstances which disclosed a significant risk that money laundering was taking place and that he had failed both to act with integrity and maintain the trust the public placed in the profession.25 it was submitted by the applicant that the exaltation transaction presented a higher risk of money laundering on account of a number of warning signs: • the x clients [the sisters] were new clients with whom the firm had not met, spoken with or corresponded directly; • the use of one or more intermediaries to give instructions and to provide kyc information; • the very high value of the transaction; • the use of a bvi to hold uk property for foreign nationals; • the use of foreign bank accounts; • the monies used in the transaction originating from a country about which the respondent knew little.26 21 ibid., para 14. 22 in practice, those seeking to launder their proceeds of crime often seek to conceal their identity: thus often making it extremely difficult to identify them as a pep. in the sharif case, the true identity of the sisters was known and this makes the failure of mr sharif to identify them as peps somewhat puzzling. 23 solicitors regulation authority v sharif (n 3) para 15. 24 ibid., para 15.4. 25 this in contravention of outcome 7.5 of the sra code of conduct and principles 6 and 7 of the sra principles. 26 solicitors regulation authority v sharif (n 3) para 16.1. 194 mr sharif admitted he acted in the exaltation transaction in circumstances where there were grounds to suspect that money laundering may be taking place.27 the tribunal found the allegation proved beyond reasonable doubt. a further separate matter related to mr sharif acting for mr marandi who wished to ‘gift a london apartment to p2’.28 the purchase involved a complex series of transactions. the sra alleged that the ‘flat (in an exclusive part of london) was owned by a corporate structure – company a. another corporate structure (company b) was to be created of which p2 would be the ultimate beneficial owner. the shares in company a would then be gifted to company b’.29 the sra submitted that this gift presented specific warning signs/risk factors including the fact that the property in question was a high-value gift and was transferred between foreign-owned entities in an offshore jurisdiction. mr sharif admitted that he had failed to conduct ongoing monitoring of his business relationship with mr marandi and therefore breached his obligation to undertake enhanced cdd steps. the tribunal found the allegation proved beyond reasonable doubt. the tribunal’s ruling the tribunal found that mr sharif was ‘wholly culpable for his misconduct’ and that ‘given the nature of his work, it was even more incumbent on the respondent to ensure that he complied with the rules and regulatory regime to minimise the risk of money laundering…. the more so in that he was the firm’s [money laundering reporting officer]’.30 the tribunal also noted that there had been significant harm to the reputation of the profession in that mr sharif’s failings had led to a risk of large amounts of money being laundered.31 this misconduct was aggravated in that ‘he ought to have known that he was in material breach of his obligation to protect the public and the reputation of the profession’.32 however, mitigating factors, including the fact that he had cooperated with the investigation and that no client had suffered any loss, meant that the misconduct was not so serious as to 27 ibid., para 16.6. 28 identified in the press as mirjalal pashayev who is a cousin of azerbaijan’s first lady and vice-president mehriban aliyeva. it seems to have been assumed at the tribunal that she was also a pep. 29 solicitors regulation authority v sharif (n 3) para 17.1. 30 ibid., para 31. 31 ibid., para 32. 32 ibid., para 32. legal practitioners as potential money launderers: beneficial ownership transparency and peps the denning law journal 195 require his removal from practice. mr sharif was fined £45,000 with agreed costs of £40,000. some comments the panama papers and beneficial ownership transparency the panama papers leak in 2016 revealed the role of mossack fonseca in establishing complex offshore corporate structures for peps (among others), with the british virgin islands (a british overseas territory (bot)) being particularly popular as the place of incorporation. seemingly it was only as a consequence of the release of the panama papers, that the link between the aliyeva sisters, exaltation ltd and child & child was revealed. the sharif case is seemingly the first in which a uk-based legal practitioner has been penalised as a result of the publication of the panama papers. it demonstrates the manner in which peps (often assisted by their legal representatives) use offshore companies to purchase real estate in the uk and thus seek to conceal their beneficial ownership of the property.33 in fact, in mitigation it was asserted on mr sharif’s behalf that ‘there was nothing uncommon about the use of a corporate structure for the purchase and sale of property in knightsbridge; on the contrary, it was prolific’. further, as regards the marandi gift: ‘there was nothing unusual in the nature of the transaction; a transfer using corporate structures was the obvious way to effect the transaction’.34 the scale of such activity was emphasised in 2019 when global witness reported that ‘over 87,000 properties in england and wales valued at an excess of us$132.4 billion (£100 billion) are owned by anonymous companies registered in tax havens’.35 the sharif case highlights the need for global action to require transparency in the beneficial ownership of such companies. in 2015, the uk became the first 33 see occrp, ‘report: us$132 billion of uk property is registered in tax havens’ (occrp, 18 march 2019) <https://www.occrp.org/en/daily/9397-report-us-132-billion-ofuk-property-is-registered-in-tax-havens> accessed 28 march 2019. see also transparency international uk, corruption on your doorstep: how corrupt capital is used to buy property in the uk (transparency international uk, london 2014) <https://www. transparency.org.uk/publications/corruption-on-your-doorstep/> accessed 10 june 2019. 34 solicitors regulation authority v sharif (n 3) paras 21, 26. 35 in fact, hm land registry has a publicly available data of overseas companies ownership: see hm land registry, ‘hm land registry: overseas companies ownership data’ (gov.uk, 7 november 2017) <www.gov.uk/guidance/hm-land-registry-overseascompanies-ownership-data> accessed 2 april 2019. https://www.occrp.org/en/daily/9397-report-us-132-billion-ofuk-property-is-registered-in-tax-havens https://www.occrp.org/en/daily/9397-report-us-132-billion-ofuk-property-is-registered-in-tax-havens https://www.transparency.org.uk/publications/corruption-on-your-doorstep/ https://www.transparency.org.uk/publications/corruption-on-your-doorstep/ www.gov.uk/guidance/hm-land-registry-overseascompanies-ownership-data www.gov.uk/guidance/hm-land-registry-overseascompanies-ownership-data 196 g20 country to introduce a public registry of beneficial ownership with companies being required to keep a register of people with ‘significant control over the company’.36 given their significance as offshore ‘secrecy jurisdictions’ the requirement contained in the sanctions and money laundering act 2018 that the bvi and other bots introduce their own public beneficial ownership registers is particularly noteworthy. indeed by 2023, all bots territories will be expected to have public beneficial ownership registers in place ‘in line with the uk government’s global campaign to make public registers the global norm by then’.37 it will be interesting to see whether the type of transaction undertaken in the sharif case remains so prolific thereafter or whether they are simply moved to other secrecy jurisdictions. taking aml obligations seriously it is important to emphasise that establishing an offshore company is entirely lawful, as is using a company to purchase real estate in the uk. it is the mirroring of such legitimate transactions by money launderers that makes the offence so difficult to detect and investigate. given their role in real estate and other property transactions, legal practitioners remain vulnerable to facilitating money laundering by their clients. the sharif case serves as a stern reminder to all legal practitioners of the need to be proactive in satisfying their aml obligations. this point is emphasised in a 2017 transparency international report which highlighted the very low number of suspicious activity reports being made by legal practitioners.38 this is reinforced in the 2018 suspicious activity reports (sars) annual report from the national crime agency which notes that a record number of 463,938 sars were made to the uk financial intelligence unit between april 36 see small business, enterprise and employment act 2015, s 81. 37 see sir alan duncan’s answer to written question 211611 dated 23 january 2019 asked by dame margaret hodge: sir alan duncan, ‘british overseas territories: companies’ (uk parliament, 28 january 2019) <https://beta.parliament.uk/questions/eupachfa> accessed 10 june 2019. see further john hatchard, ‘money laundering, public beneficial ownership registers and the british overseas territories: the impact of the sanctions and money laundering act 2018’ (2018) 30(1) denning law journal 185. 38 see transparency international uk, ‘don’t look, won’t find: weaknesses in the supervision of the uk’s anti-money laundering rules’ (transparency international uk, november 2015) <https://www.transparency.org.uk/publications/dont-look-wont-findweaknesses-in-the-supervision-of-the-uks-anti-money-laundering-rules/> accessed 10 june 2019, esp pp 12–13. legal practitioners as potential money launderers: beneficial ownership transparency and peps https://beta.parliament.uk/questions/eupachfa https://www.transparency.org.uk/publications/dont-look-wont-find-weaknesses-in-the-supervision-of-the-uks-anti-money-laundering-rules/ https://www.transparency.org.uk/publications/dont-look-wont-find-weaknesses-in-the-supervision-of-the-uks-anti-money-laundering-rules/ the denning law journal 197 2017 and march 2018.39 however, just 2,660 (0.57%) were made by ‘independent legal professionals’ and this was 11.92% lower than the previous year.40 as the report notes, the ‘ukfiu makes no comment as to the relative volume of reports from different sectors. it is for the sectors and their supervisors to assess if the volume of sars submitted is proportionate to the risks their sectors face’.41 perhaps it is no coincidence that in march 2019, the solicitors regulation authority announced that it intended to carry out spot checks of 400 law firms to ensure they were not breaching their aml obligations and warned that firms would face an enforcement process and significant penalties if they had failed to do so.42 conclusion the sharif case highlights the vulnerability of legal practitioners to involvement in money laundering and the crucial importance that they satisfy all their aml responsibilities with a failure to do so leading to serious consequences. further, given the limited number of suspicious activity reports being made by legal practitioners to the uk financial intelligence unit, the case may well provide a wake-up call for other practitioners to take effective steps to fulfil their aml obligations. while there was no suggestion of any attempt to launder the proceeds of crime in the sharif case, it also highlights the manner in which companies incorporated in offshore jurisdictions are used to conceal beneficial ownership and the risk that these can be used to facilitate money laundering. this highlights the importance of the developing strategies requiring all states to adopt public beneficial ownership registers. here the ongoing work of the uk government is commendable. 39 national crime agency, ‘suspicious activity reports (sars) annual report 2018’ (national crime agency, 2018) <https://nationalcrimeagency.gov.uk/who-we-are/ publications/256-2018-sars-annual-report/file> accessed 10 june 2019, p 2. 40 ibid., p 6. 41 transparency international uk (n 38) p 6. 42 the times, ‘firms face random money laundering checks’ (the times, 20 march 2019) <https://www.thetimes.co.uk /article/firms-face-random-money-laundering-checksqqssfnlqr> accessed 10 june 2019. https://nationalcrimeagency.gov.uk/who-we-are/publications/256-2018-sars-annual-report/file https://nationalcrimeagency.gov.uk/who-we-are/publications/256-2018-sars-annual-report/file https://www.thetimes.co.uk/article/firms-face-random-money-laundering-checksqqssfnlqr https://www.thetimes.co.uk/article/firms-face-random-money-laundering-checksqqssfnlqr 197 the denning law journal 2018 vol 30 pp 197-206 the public law of gender: from the local to the global kim rubenstein and katherine g young (eds) (cambridge university press 2018) pp 628 ronli sifris* * ronli sifris is a senior lecturer in the faculty of law, monash university and a deputy director of the castan centre for human rights law. 1 katharine young, ‘introduction: a public law of gender’ in kim rubenstein and katharine g young (eds), the public law of gender: from the local to the global (cambridge university press 2016) 1 (hereafter ‘rubenstein and young). 2 public health and wellbeing amendment (safe access zones) act 2015 (vic) section 5; reproductive health (access to terminations) act 2013 (tas) section 9. introduction this book is part of a series aimed at connecting international law with public law. the series discusses the important issues of health, environment, movement of people and security through the lens of connecting international law with public law. this final volume in the series concentrates on the gendered dimensions of international and public law from an interdisciplinary perspective, thereby acknowledging that law alone is too blunt a tool to address adequately the issues of gender that arise in the context of these legal spheres. importance of the topic young introduces this book by noting that the ‘formal recognition of gender, as a category of public law, has swept the world. in a time of rapid legal change, in both new constitutions and old, the public law of gender – and the contested norm of gender equality – is being constituted, legislated and regulated.’1 this is undoubtedly true. indeed, as the recent australian high court challenges to safe access zones demonstrate, even in countries where there is no explicit constitutional right to gender equality, courts are being compelled to determine questions of significance for women under alternative frameworks. to elaborate on the point, safe access zone legislation in two australian states (victoria and tasmania),2 which prohibits anti-abortion protesting from occurring within 150 metres of a clinic that 198 book reviews provides abortion services, has been challenged as violating the freedom of political communication which is implied from the text of the australian constitution.3 unlike most other liberal democracies, australia does not have a constitutional bill of rights; thus there is no right to free speech per se, but rather a more narrowly construed freedom of political communication.4 further, the absence of a bill of rights also means that none of the constitutional rights that are traditionally invoked to protect women in other countries, such as a right to equality or a right to privacy, exist in australia. as a consequence, it is not open to those supporting these laws to argue their validity on the basis of a constitutional right to health, privacy or equality. nevertheless, in an amicus brief submitted to the high court by the castan centre for human rights law, the authors note that the importance of the purpose of the victorian safe access zone legislation is ‘demonstrated by its consistency with human rights norms enshrined in treaties ratified by australia’.5 such treaties include the international covenant on civil and political rights (iccpr), the international covenant on economic, social and cultural rights and the convention on the elimination of all forms of discrimination against women (cedaw). this is significant because it demonstrates the potential for international law to influence constitutional law in matters which have significant repercussions for women. for example, whilst there is no constitutional right to privacy in australia, australia has ratified the iccpr therefore under international law australia is bound by the right to privacy enshrined under article 17 of that treaty. thus the argument that certain conduct of anti-abortion protestors outside of clinics (such as the recording of women entering the clinics) amounts to a violation of their right to privacy is relevant. on the question of privacy, in her introduction to the book young observes: [b]oth international law and constitutional law carve out a number of exceptions of application that can have a significant impact on gender. most prominent in the gap in coverage is the public/private distinction, in which 3 commonwealth of australia constitution act 1900.  4 for an overview of the jurisprudence relating to the implied freedom of political communication, see s joseph and m castan, federal constitutional law: a contemporary view (lawbook co 2014). 5 t penovic, r sifris and c henckels, submissions of the castan centre for human rights law seeking leave to appear as amicus curiae in the case of clubb v edwards [30]. the denning law journal 199 both international and public law are, in the main, concerned only with the regulation of the public sphere.6 for example, the definition of torture enshrined in article 1 of the convention against torture and other cruel, inhuman or degrading treatment or punishment stipulates that torture constitutes severe pain or suffering ‘inflicted by or at the instigation of or with the consent or acquiescence of a public official’. this focus on the role of the public official has traditionally meant that forms of violence against women perpetrated in the private realm, such as intimate partner violence or rape, were excluded from the international law understanding of torture. nevertheless, the international legal community, including the committee responsible for the interpretation of the convention against torture, has begun to adopt a ‘due diligence’ approach to the question of state responsibility. this means that increasingly it seems that the ‘public official’ requirement is met when a state fails to exercise ‘due diligence’ in relation to severe pain or suffering inflicted by private actors. for example, in relation to intimate partner violence former special rapporteur on torture, manfred nowak, commented that ‘states should be held accountable for complicity in violence against women, whenever they create and implement discriminatory laws that may trap women in abusive circumstances.’7 from a gendered perspective, this move towards including certain forms of ‘private’ violence within the international legal understanding of what conduct may constitute torture is a significant development as the impact of violence perpetrated in the private realm falls disproportionately on women. these two examples demonstrate the importance of this book. the fact that the australian high court is currently determining the constitutional validity of laws aimed at protecting the privacy, dignity, health and well-being of women accessing abortion services illustrates the importance of analysing public law through a gendered lens. the fact that the international legal community is increasingly holding states responsible for violence perpetrated in the private realm (where a link can be established with the state) illustrates the momentum towards developing international law through a gendered lens. 6 katharine young, ‘introduction: a public law of gender’ in rubenstein and young (n 1) 5. 7 manfred nowak, report of the special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (un doc a/hrc/7/3, 15 january 2008) 46. 200 book reviews key themes and ideas the book consists of six parts. part i comprises three chapters focusing on constitutional design and gendered outcomes. these chapters emphasise the role that a rights-based approach may play in achieving gender equality and the importance of ensuring that law does not reinforce traditional gender stereotypes. part ii looks at constitutional design in a global setting and presents the ‘challenge of the local’. it comprises four chapters that present domestic challenges to addressing gender adequately within the local constitutional framework. part iii hones in on the crucial matter of women’s participation and looks at this issue through the specific lenses of polygamy and one woman’s role in the international system. part iv then considers the related issue of representation and does so through four chapters, two of which focus on individual countries (new zealand and vietnam) and two of which focus on thematic issues. closely connected to the question of representation, part v is concerned with questions of equality and non-discrimination in the governance context, with two chapters analysing specific issues in the australian context and one raising interesting comparisons with the way that law tackles racial discrimination. finally, part vi looks at global governance and the precepts of public law, discussing issues ranging from the influence of cedaw, the approach of the international criminal court to gender justice, international organisations as employers, global administrative governance and ecofeminism. when reading this book, i was struck by certain themes that cut across the different parts. for example, a number of chapters in the book consider the role of international law and its connection to domestic law. reflections on domestic law lead some of the chapters to ponder local challenges to a human rights-based approach; particularly the human right to equality. discussion of the human right to equality or non-discrimination is itself a focal point of a number of chapters, with some chapters concentrating on issues concerning women’s representation and participation in the public realm as essential precursors to the achievement of equality. the role of international law as mentioned above, this book forms part of a series aimed at connecting international law with public law. so it is fitting that a number of chapters in the book focus on the role of international law. in fact in the book’s first chapter, jackson discusses the inclusion of international human rights, such as the right to equality and economic, social and cultural rights within domestic constitutions.8 jackson 8 vicki jackson, ‘feminisms and constitutions’ in rubenstein and young (n 1) 43. the denning law journal 201 then expands on this theme in the final part of the book by looking more broadly at the influence of international law on domestic law.9 in addition to international law, the book also considers the influence of international institutions; and whilst chappell reveals how international institutions may act as models for domestic purposes,10 jefferson and epichev point out that international institutions are not necessarily a positive example for domestic institutions.11 indeed the international realm in many instances reinforces the problems embedded in domestic systems. thus wilkinson, for example, points out the way in which international environmental law privileges the neoliberal political economy thereby devaluing women’s work.12 this notion that international law may be both a positive and a negative influence on domestic law is important to bear in mind. too often, proponents of international law, and international human rights in particular, are zealot-like in their attempts to encourage the incorporation of international law within the domestic legal sphere without engaging in an objective assessment of its merits. in many instances, international law has much room for improvement. for example, the public/private dichotomy that runs through international law (discussed above) is perhaps the most frequently cited example of the gendered nature of international law.13 that said, increasingly this dichotomy is being addressed and international law, particularly international human rights law, whilst not perfect in many respects represents an approach to governance which is aimed at securing women’s rights and women’s equality. frequently, it is local social and cultural norms that pose the most serious challenge from a gendered perspective. thus a number of chapters in this book consider local challenges to a human rights-based approach to equality. 9 vicki jackson, ‘feminisms, pluralisms, and transnationalism: on cedaw and national constitutions’ in rubenstein and young (n 1) 437. 10 louise chappell, ‘governing victims’ redress and gender justice at the international criminal court’ in rubenstein and young (n 1) 465. 11 osmat jefferson and innokenti epichev, ‘international organisations as employers: searching for practices of fair treatment and due process rights of staff’ in rubenstein and young (n 1) 489. 12 kate wilkinson, ‘is this the future we want? an ecofeminist comment on the un conference on sustainable development outcome document’ in rubenstein and young (n 1) 538. 13 see for example rebecca cook, ‘state responsibility for violations of women’s human rights’ (1994) 7 harvard human rights journal 125; hilary charlesworth, christine chinkin and shelley wright, ‘feminist approaches to international law’ (1991) 85 american journal of international law 613, 638–43. 202 book reviews local challenges to a human rights-based approach to equality a number of chapters consider the challenges of specific social and cultural norms to a human rights-based approach to equality. for example: williams illuminates the conflict between customary law and gender equality in south sudan in circumstances where both are constitutionally protected;14 nagarajan and parashar consider the pervasiveness of gender discrimination in india and vanuatu, countries which have both ratified cedaw;15 kouvo and levine reveal the enormity of problems concerning gender-based violence and inequality in afghanistan, despite the fact that the 2004 constitution enshrines gender equality and that the country has ratified cedaw.16 other chapters are broader in their focus. wilson illustrates how cedaw provides a focal point for what needs to be done locally to achieve women’s equality.17 in their respective chapters, grenfell, bessell and nguyen emphasise how the inclusion of women’s rights in domestic constitutions or the ratification of cedaw does not in and of itself guarantee the protection of these right in reality or the adequate representation of women in positions of power.18 indeed, social and cultural constraints are frequently more powerful than law on the books. this broader focus is important. it is not only countries in the global south where women’s rights are often more theoretical than practical; violence against women, in particular intimate partner violence, remains a serious issue around the world. according to the australian bureau of statistics, one in three women has experienced physical and/or sexual violence perpetrated by someone known to them.19 on average in australia, one woman a week is murdered by her current or former partner.20 thus the failure of countries to protect adequately women’s basic human rights, such as the right to life, is pervasive throughout the world, including 14 susan williams, ‘customary law, constitutional law, and women’s equality’ in kim rubenstein and young (n 1) 123. 15 vijaya nagarajan and archana parashar, ‘gender equality in international law and constitutions: mediating universal norms and local differences’ in rubenstein and young (n 1) 170. 16 sari kouvo and corey levine, ‘law as a placeholder for change? women’s rights and realities in afghanistan’ in rubenstein and young (n 1) 195. 17 margaret wilson, ‘women in government/governance in new zealand’ a case study of engagement over forty years’ in rubenstein and young (n 1) 296. 18 laura grenfell, ‘customising equality in post-conflict constitutions’ in rubenstein and young (n 1) 147. 19 australian bureau of statistics, personal safety, australia (2013). 20 w bryant and s bricknall, ‘homicide in australia 2012-2014: national homicide monitoring program report’ (australian institute of criminology, 2017) <https://bit. ly/2ozctxh> accessed 15 november 2018. the denning law journal 203 in wealthy western liberal democracies. as such, rimmer’s focus on gender-based abuse in the australian military reminds us of the reality that cultural norms in countries like australia, particularly in sub-cultures like the military which have a history of hyper masculinity, perpetuate the acceptance of certain forms of gender specific harm.21 further, the pervasiveness of violence against women is a reflection of the inferior role that women continue to occupy in society and the insidious effects of gender-based discrimination; so the focus on the right to equality in many of the book’s chapters is commendable. the right to equality/non-discrimination starting from the reasonable assumption that gender equality does not exist, allen imagines a legislative regime that imposes a positive duty to promote gender equality and collins, by focusing on the specific context of nationality laws, highlights the importance of ensuring that law does not reinforce traditional gender stereotype.22 gover, kapur and kristofferson bring a different perspective to bear on this issue of equality and discrimination. gover discusses the difference in application of anti-discrimination laws to race and gender whilst kapur and kristofferson consider how traditional notions of equality fail to capture adequately the oppression endured by gender-variant persons.23 the failure of both international and domestic laws to tackle discrimination perpetrated against transgender and gender non-binary people strikes me as particularly important. whilst women still have a long way to go in achieving full substantive equality, the enormity of the conscious and unconscious discrimination suffered by transgender and gender non-binary persons is extremely troubling. for example, despite some movement in the international realm to condemn ‘unnecessary surgery and treatment on intersex children without their consent’24 21 susan rimmer, ‘gender, governance and the defence of the realm: globalising reforms in the australian defence force’ in rubenstein and young (n 1) 413. 22 dominique allen, ‘rethinking the australian model of promoting gender equality’ 391; kristin collins, ‘deference and deferral: constitutional structure and the durability of gender-based nationality laws’ in rubenstein and young (n 1) 73. 23 kirsty gover, ‘gender and racial discrimination in the formation of groups: tribal and liberal approaches to membership in settler societies’ 367; rohan kapur and kellin kristofferson, ‘a gender critique of accountability in global administrative governance’ in rubenstein and young (n 1) 514. 24 united nations, ‘ending violence and discrimination against lesbian, gay, bisexual, transgender and intersex people’ (september 2015) <https://www.ohchr.org/documents/ issues/discrimination/joint_lgbti_statement_eng.pdf> accessed 15 november 2018. 204 book reviews and despite a 2013 australian senate inquiry condemning non-therapeutic sterilisation of intersex babies,25 in australia there has been no legislative reform in this arena. thus whilst the fight for women’s equality must continue, those fighting for the right to equality for all must also fight in support of equality for those identifying as transgender or gender non-binary. representation/participation an essential precondition for the attainment of equality is representation and participation. after all, it is those with a seat at the table whose interests are promoted and protected by the decisions made at that table. a number of chapters in this book discuss women’s representation and participation in different contexts. for example, lemaitre and sandvik focus on the power of grassroots movements, williams discusses gender quotas in the south sudanese legislature and wilson analyses the engagement of women in new zealand with the political process.26 rubenstein’s chapter is particularly interesting in that it highlights the need to hear the experiences of women who have participated in decision-making at the highest levels and illuminates the way that what and whose history is recorded and reported reinforces existing power structures.27 the question of power and power relations is key in any discussion of gender inequality. the fact that all societies continue to be structured so as to privilege men over women means that these power dynamics infect all parts of the state. this goes some way to explaining why, as bessell discusses, even with various initiatives in place for women’s political representation (such as targets and quotas) women remain under-represented in legislatures around the world.28 further, it is not sufficient for women to be represented, women’s full participation requires 25 senate standing committees on community affairs, involuntary or coerced sterilisation of intersex people in australia (second report of senate inquiry, 25 october 2013) <https://www.aph.gov.au/parliamentary_business/committees/senate/community_ affairs/involuntary_sterilisation/sec_report/index> accessed 15 november 2018. 26 julieta lemaitre and kristin sandvik, ‘structural remedies and the one million pesos: on the limits of court-ordered social change for internally displaced women in colombia’ 99; susan williams, ‘customary law, constitutional law, and women’s equality’ 123; margaret wilson, ‘women in government/governance in new zealand: a case study of engagement over forty years’ in rubenstein and young (n 1) 296. 27 kim rubenstein, ‘in her own voice: oral (legal) history’s insights on gender and the spheres of public law’ in rubenstein and young (n 1) 246. 28 sharon bessell, ‘good governance, gender equality and women’s political representation: ideas as points of disjuncture’ in rubenstein and young (n 1) 273. the denning law journal 205 that a feminist perspective is incorporated into policies and process. thus, for example, wisor reflects on the feminisation of poverty and suggests how new measures of poverty may be developed through participatory processes that reflect on the values which do and should inform our conception of poverty.29 finally, baines’ somewhat controversial chapter on polygamy in canada illuminates how sometimes, in the absence of participation of the women most affected, laws aimed at protecting particular groups of women may in reality operate to their detriment.30 baines invokes the criminalisation of polygamy to illustrate this point. the discussion makes me think about the also controversial topic of compensated surrogacy, in where the criminalisation of compensation leads to a situation in which doctors, lawyers and clinics are paid to provide a fertility service but the surrogate is expected to provide her reproductive labour ‘altruistically’ thereby reinforcing conceptions of women’s work as unpaid work. thus in this scenario too, the law operates to the detriment of the women it is supposed to protect (i.e. the surrogates).31 conclusion it has been almost forty years since cedaw came into force; yet discrimination against women remains endemic globally, as do other human rights violations that disproportionately affect women. nevertheless, over the years there have been some significant improvements at both the local and global level. for example, increasing numbers of countries have legalised abortion and the various human rights treaty bodies have recognised restrictions on abortion as a human rights concern. as this book illustrates, when viewing both the public law of many countries and international law through a gendered lens, there has been some progress with much remaining room for improvement. alongside the continued fight for women’s equality, the next frontier is the fight for equal treatment of transgender, intersex and other gender non-binary people. surgery on intersex babies to conform genitalia to a gender selected by doctors or parents remains one example of problematic conduct that is passively accepted on a widespread scale. increasingly, there is a progressive realisation 29 scott wisor, ‘gender, justice and statistics: the case of poverty measurement’ in rubenstein and young (n 1) 344. 30 beverley baines, ‘polygamy: who speaks for women?’ in rubenstein and young (n 1) 219. 31 for a discussion of whether australia should legalise compensated surrogacy, see r sifris, k ludlow and a sifris (eds) ‘special issue: commercial surrogacy — what role for law?’ (2015) journal of law and medicine 23. 206 book reviews around the world not only that all people should be treated equally, but that it is folly to insist on categorising people in a way that lacks nuance and is unreflective of the lived experience of many individuals. it is to be hoped that there will be a volume 2 of this book which expands on the chapter dealing with gender diversity and focuses on the need for, and consequences of, broader conceptions of gender. economic loss: the floodgates p. s.james* the mineral transporter, i muirhead v. industrial tank specialities ltd.2 and the aliakmon3 have again raised the hoary conundrum concerning the limits of liability for economic loss. it merits an airing. let us start with some well-known facts. cattle contracted to construct a tunnel for knight. this tunnel was to be under an embankment. due to the negligence of the defendant water authority, water leaked from their pipe and the embankment and the land around were flooded. this made it more difficult than it would otherwise have been for cattle to make the tunnel and he thus lost profit on his contract to the tune of £26. cattle claimed this loss from the defendants.4 at the trial at the leeds assizes before amphlett b. judgment was given for the plaintiff. on appeal this decision was reversed. blackburn]. in his judgment transformed a mouse into an elephant. after tentatively making the revealing suggestion that had knight sued in his own name he could have recovered the £26 as trustee for the plaintiff, he decided against cattle. this he did in a significant way. he started with the proposition that "in the present case the objection is technical and against the merits, and we should be glad to avoid giving it effect ... " then why not avoid this? the answer to that question has set the cat among the legal pigeons ever since. it is necessary though the reader will be familiar with it to cite what blackburn j. then went on to say: " ... but if we did so we should establish an authority for saying that in such a case as that of rylands v. fletcher the defendant would be liable, not only to an action by the owner of the drowned mine, and by such of his workmen as had their tools or clothes destroyed, but also to an action by every workman and • professor p s james, formerly chairman of the law school, university of buckingham. 1. candlewood navigation corp. ltd. v. mitsui o.s.k lines ltd. : the mi'leral transporter, the ibaraki marn [1986] a.c. 1 (p.c.). 2. [1985] 3 all e.r.705 (c.a.). 3. leigh (5 sillavan ltd. v. aliakmon shipping co. ltd. [1986] 2 all e.r.145 (h.l.). 4. cattle v. stockton watenvorks co. (1875) l.r.10 qb.453. 5. italics mine. 97 the denning law journal person employed in the mine, who in consequence of its stoppage made less wages than he would otherwise have done. many similar cases to which this would apply might be suggested. it may be said that it is just that all such persons should have compensation for such a loss, and that if the law does not give them redress it is imperfect. perhaps it may be so. but, as has been pointed out by coleridge j. in lumley v. gye, courts of justice should not 'allow themselves, in pursuit of perfectly complete remedies for all wrongful acts, to transgress the bounds which our law, in a wise consciousness of its limited powers, has imposed on itself, of redressing only the proximate and direa consequences of wrongful acts'." so these are the reasons why in a case in which had knight sued as trustee cattle would have recovered. if, as he did, he proceeded at common law he could not. a difference of procedure hardly affects the equities; and equities, in the broad sense of the word, blackburn j. unblushingly admitted that there were. his decision appears to proceed upon two grounds. first, that it would open "floodgates" to allow recovery in a case like rylands v. fletcher6 if the workmen could recover for more than the loss of their tools and their clothes; 7 second, that recovery must be limited to the "proximate and direa consequences of wrongful aas". 8 it is apprehended that the second ground of decision was the relevant statement of principle9 though, almost in fear and trembling, perhaps, one may be permitted the opinion that blackburn]. applied it wrongly to the facts of the case. but it is the first ground, the "floodgates" ground, that demands immediate attention. before, however, considering the "policy" (or lack of it) that underlies the "floodgates" argument one must pass to the house of lords decision in simpson c5 co. v. thomson 10 which gives to it a concrete form which has since been slavishly adhered to. briefly, in simpson's case a mr. burrell owned two ships, a and b; b negligently collided with and sank a. the plaintiff underwriters paid mr. burrell for the loss of a and then sought to recoup themselves against him as the owner of b. had some third party owned b there would have been no doubt their claim could have been satisfied by resort to subrogation; 11 but the house of lords denied the claim by resort to the specious argument that since, technically, there could be no 6. (1868) l.r.3 h.l.330. 7. note that there is no actual mention of the.distinction between economic and physical loss. had that distinction been drawn between the loss of wages on the one hand and of tools on the other a "flood" might still arise if the tools were unique and irreplaceable and their loss entailed permanent loss of work. 8. it must be remembered that coleridge j.'s rhetoric about the "floodgates" was uttered in lumley v. gye (1853) 2 e.b.216 where, as the sole dissenter, he stood alone in guarding them. they were opened and, of course, no disasters followed. 9. one respectfully agrees with edmund-davies l.j. in spartall steel alld alloys ltd. v. martill (colitractors) ltd. [1973] qb. 27 that "proximity" was the nub of the decision. 10. (1877) 3 app. cas. 279. 11. once more, as in cattle's case, equity will succour where.common law will not. 98 economic loss: the floodgates subrogation because mr. burrell could not sue himself1z ergo there could be no claim by the plaintiffs because (unassisted by subrogation) they could have no direct right of action. why not? at the risk of boring the reader it is now necessary to repeat the well-known passage in lord penzance's speech in simpson's case. he said: "this proposition 13 virtually affirms a principle which your lordships will do well to consider with some care, as it will be found to have a much wider application and signification than any which may be involved in the incidence of a contract of insurance. the principle involvedi4 seems to me to be this that where damage is done by a wrongdoer to a chattel not only the owner of that chattel, but all those who by contract with the owner have bound themselves to obligations which are rendered more onerous, or have secured to themselves advantages which are rendered less beneficial by the damage done to the chattel, have a right of action against the wrongdoer although they have no immediate or reversionary property in the chattel, and no possessory right by reason of any contrad attaching to the chattel itself, such as by lien or hypothecation. is this, i say is the principle involved in the respondents' contention." 16 lord penzance then proceeded to conjure up all sorts of horrid possibilities if the "principle" were not adhered to. take the case of the wrongdoer who destroys property which the owner has contracted to supply to a third party. it would, it seems, be awful if the latter could recover.17 or the case of the man who injures someone whose doctor, for a yearly fee, has agreed to treat him. the doctor should have no claim for his extra expense. or the case of the actor who is disabled so that his manager suffers loss. could the manager recover?i8 "such instances", lord penzance continued, "might be indefinitely multiplied giving rise to rights of action ... which might be both numerous and novel" this is the "floodgates" argument of which lord edmund-davies has said: 12. the argument was that since mr. burrell could not sue himself there were no "shoes" to stand in. logical, but hardly sensible. equity, through subrogation, recognizes that underwriters have a right: to deny that right because the machinery (subrogation) cannot logically be operated is to mistake the adjectival for the substantive, the shadow for the substance: see "the fallacies of simpson v. thomson", (1971) 34 m.l.r.149. 13. name]y, the suggestion that the underwriters could have a direct right of action at common law. 14. but was it? why cast the net so wide? 15. of course this is cast in the negative, but the time-worn shibboleth has now become "on]y those who own or possess the damaged property can sue for consequent economic loss." why lord penzance let in the lienor is unclear: the latter's possessory interest is nothing but a piece of machinery for protecting his contractual right e.g. the repairer's right to his pay. 16. italics mine. 17. it would seem to be only just. the owner suffers no loss, he has his money, assuming risk and property have passed. 18. in terms of proximity probably he should not; unless, at least, the wrongdoer was aware of the relationship. likewise the doctor. such a position may be distinguished from cattle's case where the water authority should have been aware of the tunnelling. 99 the denning law journal "my lords, the experiences of a long life in the law have made me very familiar with the "flood-gates" argument. i do not of course suggest that it can invariably be dismissed as lacking cogency; on the contrary it has to be weighed carefully, but i have often seen it disproved by later events. it was urged when the abolition of common employment was being canvassed, and it raised its head again when the abolition of contributory negligence as a total bar to a claim in negligence was being urged. and, even before my time, 19on the basis of conjecture later shown to be ill-founded, it provided a fatal stumbling block to the plaintiffs claim in the "shock" case of viaoria railways commissioners v. coultas (1883) 13 app. cas. 222, where sir richard couch sounded the "floodgates" alarm in stirring words ... ,,20 with respect, it is thought that this comment is justified. when the "floodgates" have been opened21 it does not appear that the apprehended disasters ever have occurred; rather, under careful judicial control,22 new remedies have been afforded where they were needed. but what requires to be noted is that there are two different aspects of the "floodgates" argument: the one lacking merit, the other to some extent respectable. the first of these aspects appears in lord penzance's speech: it is that the opening of the "gates" will give rise to a deluge of new kinds of claims,23 both "numerous and nove]"; a fear which has been so often expressed. that is one side of the coin; but it has always been the philosophy of the far-sighted judge that "if men will multiply injuries actions must be multiplied too; for every man that is injured ought to have recompense.,,24 had the judges not accepted new fields of liability and ploughed up old ones25 the law of torts, from 19. his lordship could, and should, have added the most significant refutation of the "numerous and novel" ("floodgates") "alarm". in winterbottom v. wright (1842) 10 m. & w. 109 lord abinger feared to venture upon new fields: he denied the claim upon the ground that "we ought not to permit a doubt to rest upon this subject, for our doing so might be the means of letting in upon us an infinity of actions." alderson b. was of opinion that "the oil1ysafe rule is to coizjillethe right to recover to those who mter into the contract; if we go one step bryond that ... " all sorts of terrible things could happen. the point of the case was, of course, that where a contractual right was broken an injured party who was not the contractor could not sue. since donoghue v. stevmson [1932] a.c.552 these cautionary cries are one with nineveh and tyre; and few, except, perhaps typically, scrutton l.j. in farrv. bullets [1932] 2 k.b.606 have seen reason to complain about the opening of these "floodgates". 20. mcloughlin v. o'brian [1983] a.c.410. 21. as in doiloghuev. stevmson. 22. instance the cautious development of the rule in lumley v. cye. 23. lord penzance's fear of preposterous claims was really a 11011 sequitur: no more was needed than to decide simpsoll 's case on the merits and such a decision need not ilecessarilyhave led to his frightening conclusions. 24. ashby v. white (1703) 2 ld.raym. 938, 955; per lord holt. where would the law be without its creative judges? its mansfields, its atkins, its dennings, its marshalls and its holmes's? 25. some judges set their faces against this impious practice. but where should we have been if coke had done so? an example of the attitude is to be found in lord brandon's speech in thealiakmon, supra n.3, at p.154: his lordship reads lord wilberforce's celebrated statement in alms v. mertoll londoll borough council [1978] a.c. 728, 751-2 as suggesting ("stare decisis") that policy, once settled, cannot be changed. with respect, lord wilberforce seems to say no such thing. ifhe had he would have been flying in the face of donoghue v. stevmsoll, to mention only the most famous case by which the fields have been reploughed. 100 economic loss: the floodgates the invention of trespass onwards, would never have developed. the second aspect of the "floodgates" argument, which is equally familiar, lies in the fear of extension of liability beyond the limits which a defendant may be expected to bear; "liability to an indeterminate amount for an indeterminate time to an indeterminate class".26there is undoubtedly some force in this argument; it is probably what blackburn j. had in mind when, in cattle's case, he referred to the workmen and their wages. some control mechanism is undoubtedly needed to prevent such a result. the courts are now casting about to find an effective mechanism.27 three candidates for the task hold the field. first, a rather unpopular candidate, proximity or "reasonable foresight";28 second, lord penzance's rule of thumb (much to the fore); third, what one may call the "loss/reliance" mechanism. use of analogy might suggest a fourth possibility: but we will come to that later. bearing in mind that we are concerned with "economic" loss, let us now consider these mechanisms. first: "reasonable foresight". the danger about this is that, at least on the face of it, and in a special sense, ultimately, it may impose too much liability. one can reasonably foresee all kinds of things. for instance if one lets loose a virus likelyto affect cattle the owner of an auctioneer's business miles from the point of release may suffer loss by reason of markets being closed.29 again, if, as an accountant, one makes a careless mis-statement in an account the document may fly far and wide and get into the hands of all sorts of people who may incur loss in reliance upon it. or, again, if one negligently cuts off electric power supply factories in an entire neighbourhood may have to stop work and thereby lose profit.30 and so on. thus, on the face of it "foresight" cannot promote a policy which seeks to limit liability: rather the reverse. on the other hand, at the risk of being accused of teaching one's grandmother to suck eggs, one must remind the reader that, as lord atkin formulated it, it is of its kind a restriaive principle. true, lord atkin starts "you must take reasonable care to avoid acts or missions which you can reasonably foresee would be likely to injure your neighbour" but he continues with the vital gloss ... "who, then, is my neighbour? the answer seems to be persons so closely and direaly31 affected by my act that i ought reasonably to have them in contemplation "we come back to coleridge j. and the "proximate and direct. ,,33 26. ultramares corpn. v. touche 174 n.e. 441; 255 n.y. 170 (1931); per cardozo c.j, 27. see, above all, caltex oil (australia) pty. ltd. v. dredge willemstad (1976) c.l.r.529. 28. let it not be forgotten, however, that this was the mechanism employed by blackburn]. in cattle's case. 29. weller (5 co. v. foot (5 mouth disease research institute [1966] 1 qb. 569. 30. s.c.m. (uk) ltd. v. w.;. whittall (5 son ltd. [1971] 1 qb.337; spartan steel (5 alll!j's ltd. v. martin (cotllractors)ltd. [1973] qb.27. 31. numerous recent dicta have suggested that the test of "directness" is outmoded. in face of lord atkin's universally accepted criterion of "directness" it is hard to see how this can be. 32. donoghue (or mtalister) v. stroenson [1932] a.c.562, 580. 33. supra n.8. 101 the denning law journal to the same effect is lord wilberforce in anns v. merton london borough:" ... one has to ask whether as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity ... ,,34 so that in fact here we have a control mechanism, but the question is how effectively it can be operated. one can only embark upon attempting an answer to this question by bearing in mind that there can never be any such thing as an absolutely "correct" application of principle to a particular fact situation: that is what the diversity and wealth of opinion in the digest was all about. what is "restrictive" to one person may to another be the reverse. but if we take the cases of the auctioneer, the accountant and the negligent power-cutter already put, it may be agreed that the remoter consequences were not proximate; and this form of control mechanism may, in such situations, be made to work. that is the negative side of the picture. but what about the positive one? if "proximity" ceases at a given point what (and this is the normal way the atkin formula is looked at) should it include? it is thought that, even in the case of economic loss, it ought to include all really close situations and that it would envisage the case of the time charterer who loses hire and profit when another ship negligently damages his ship. it is thought that the relationship between the errant ship and the time charterer is sufficiently close and direct. and yet, as will appear, by reference to the penzance rule and stare decisis, in the mineral transporte?5 the judicial committee decided the reverse. and again, one would emphatically have thought that the buyer of a cargo to whom the risk but not the property has passed ought to have a claim against a negligent shipowner who damages the cargo. every shipowner knows that there may be people in the buyer's position. but again, relying upon lord penzance and stare decisis the house of lords in the aliakmon36 have finally denied such a claim. reliance in these decisions is placed upon lord wilberforce's caution that "foresight" must give way to "policy"j37 how far the "floodgates" doctrine (at its worst) and stare decisis are matters of "policy" is questionable. both deny the need for a readiness to consider change which is inherent in a healthy legal system. so what of the "foresight" principle as a control mechanism? generally speaking, it is believed that it would of itself, if sensibly applied, be sufficient to control the incidence of economic loss: it would to a large extent narrow it, but to some extent, too, it would widen it. there is, however, one important reservation: the principle provides no safeguarlin blackburn j.'s case of the workmen in the drowned mine: although blackburn j. clearly did not, it would be legitimate to 34. (]978] a.c.n8, 75]-752. 35. supra n.l. it remains remarkable, however, that an enlightened house of lords in morrison s.s. co. ltd. v. greystoke castle (] 947] a.c. 265 allowed general average contributors a direct claim against a negligent ship. it is not overlooked that those who dislike it have made attempts to explain this decision away. 36. supra n.3. 37. in anns, at pp.75]-752. 102 economic loss: the floodgates regard them as "proximate" to the defendant, and yet as a matter of policy the incidence of liability might be too great for the defendant to bear. blackburn j. clearly did think that. we will seek to answer this problem at a later stage. we will now pass to the second form of control mechanism, the penzance doctrine itself. as we have seen, this amounts to the proposition that liability is to be controlled by the principle that economic loss can only be recoverable if it follows upon physical injury to person or to property: step outside this and give a claim to a person who has, for example, a merely contractual interest in the person or property involved and the "floodgates" will open. it has, however, already been remarked that (pace lord penzance) this "flood" is not a necessary consequence: indeed, other control mechanisms are available in particular the proximity doctrine which is restrictive and is capable38 of being very restrictively applied. so let us now consider the credentials of the penzance doctrine. to start with, inasmuch as it does, if it does,39 originate in cattle's case40 it boasts an unpromising pedigree: "in the present case the objection is technical and against the merits.,,41 moreover, its history is beset with doubts: in espousing it in elliott steam tug co. ltd. v. the shipping controller 42 scrutton l.j. said" ... the common law rightly or wrongly does not recognize a right to sue for injury to a merely contractual right." further, the stark distinction between physical loss on the one hand and economic loss on the other is far from clear-cut. if my car is negligently damaged i am complaining about the cost of repair: an economic loss. if, as the result of a carelessly performed sterilization operation a woman has a child, the major loss of which she complains is economic the cost of bringing up the child.43 and, indeed, as has often been remarked, all legal injury is economic in that it is remediable by damages.44 further, as the cases show, the distinction between physical and economic loss brings us to the ridiculous point that if the same plaintiff suffers economic loss arising out of a physical injury and also similar economic loss (but not arising from 38. for instance it has been argued that the cargo owner puts himself outside the bounds of proximity to the shipowner by taking upon himself the contractual risk vis-a-vis the seller. of course the proximity rule, like any other, may be applied capriciously. it should be added that we are not concerning ourselves here with problems arising from exclusion clauses and the operation of the hague rules. 39. as was suggested above, a careful reading of cattle's case reveals that the decision did not rest upon lord penzance's proposition but upon proximity. 40. (1875) l.r.io qb.453. 41. blackburnj.'s exordium in cattle's case. 42. [1922] 1 k.b. 127, 140. and in la societe anonyme de remorquage a helice v. bennetts [1911] 1 k.b.243, 249 hamilton j. had his doubts ... "i can understand that the law might regard any interference by the defendant with the plaintiffs' contractual chances with a third party as a ground of action in their favour." certainly. what about lumley v. gye? 43. emeh v. kensington and chelsea and westminster area health authority [1985] qb.1012. 44. there is absolutely no clear line of distinction. in junior books v. veitclli co [1983] a.c.520 lord roskill treated the loss as "economic"; in tate fs lyle ltd. v. greater lo/iimn council [1983] 2 a.c.509 lord templeman treated the veitchi loss as physical. which of their lordships was "right"? so too, the subsidence cases like dutton v. bognor regis united building co. ltd. [1972] 1 qb. 373 have been treated as falling within either category. nobody is to blame: the distinction is unsound. 103 the denning law journal physical injury) in consequence of the same wrongful act he can recover under the one head but not under the other.4s here inconsequent resort is had to the "floodgates". it is argued that to allow the latter claim might give rise to a flood of actions; as, for instance, in a case like spartan steel (5 alloys ltd. v. martin (contraaors) ltd.46 where a negligently severed electric cable might, by stoppage of power, cause loss of profits to all the factories in the neighbourhood. this argument is, however, only relevant if, once again, one assumes that the penzance doctrine is the only form of control mechanism: whereas in fact the proximity principle could supply an answer. further, just the same argument could apply to physical, rather than economic, damage. where explosions are concerned it can be far flung.47 indeed, this fact glaringly underlies the statutory limitations imposed upon the amount of liability in maritime and aviation law, to which we will return. apart from these considerations, however, how far does the penzance rule achieve sensible and just results? it has been suggested above that in the case of the time charterer48 and the case of the buyer to whom the risk, but not the property, has passed49 it flies in the face of the proximity principle only to be defended by the cry of stare decisis.so but what about the case where a negligent ship runs down a ship in tows1 and the penzance rule denies the tug owner his lost towage? if there ever was proximity it is here and it is thought that the layman would say that the tug owner ought to recover: moreover, a decision in his favour would not open any "floodgates". what about the case of a passenger who loses profits as the result of delay in a voyage caused by a collision? penzance denies him recovery,s2 but it is thought that he would feel that his lawful expectations had 45. spartan steel anda/luys ltd. v. martin (contractors) ltd. [1973] qb. 27 (c.a.) where, of course, the defendant having negligently severed a power cable a "melt" in the plaintiffs furnace was damaged through lack of power and they lost profit on other "melts" which, through lack of power, they were unable to process. the decision was that the plaintiffs could recover in respect of the damaged melt both for the damage and for loss of profit but the purely "economic" loss of profit on the other "melts" was irrecoverable. to the same effect is muirhead v. industrial tallkspecialities ltd [1985] 3 all e.r. 705 (c.a.), where a fish farmer suffered loss due to a defect in an electric pump. he was allowed to recover from the manufacturer in respect of the physical loss of some lobsters and the loss of profit thereon; but not for costs and loss of profit generally. the distinction between physical injury and economic loss in such circumstances is "technical and against the merits". a blemish, one would have thought, in our law of a kind which we would have thought archaic and risibile had we met it in the law of the twelve tables. lord roskill in veitchi 's case, supra n.44, indicates that spartatl steel may require reconsideration by the house of lords: it certainly needs to be reconsidered. 46. ibid. 47. see, e.g., the grandcamp [1961] lloyd's rep. 504. 48. cand/wood navigation corp. ltd. v. mitsui o.s.k. lines: the mineral tratlsporter [1986] a.c.1. 49. leigh r.s sil/avan ltd. v. aliakmon shipping co ltd: the aliakmon [1986] 2 all e.r. 145 (h.l.). disapproving a dictum of sheen j. in the nea tyhi [1982] 1 lloyd's rep. at p.612 and overruling the decision of lloyd j. in shijfijhrt und koh/en gmbh v. chelsea maritime ltd: the irene's success [1982] 1 all e.r. 218. but see the powerful dissent of goff l.j. and the doubts of oliver l.j. in the court of appeal: the a/iakmon [1985] 2 all e.r. 44. 50. a cry particularly dear to commercial lawyers; yet there is no reason why commercial law, above all, should be static. 51. la societe anonyme de remorquage a helice v. bennetts [1911] k.b. 243. 52. see the minera/ transporter, supra na8, at p.19: per lord fraser. 104 economic loss: the floodgates been denied by some mysterious technicality. and so one might continue. it is submitted that as a control mechanism the penzance doctrine is not only suspiciously technical but also too restrictive. now let us turn to another control mechanism which is gaining ground. this has a respectable pedigree. it is the very mechanism that founded the law of contract through the medium of assumpsit. it is the notion of loss by the plaintiff caused by reliance upon the defendant. it is now becoming clear that purely economic loss will be remedied where it arises from such reliance upon the defendant's words53 or deeds,54 provided, at least, that there is a relationship between the parties "equivalent to contract".55 where misrepresentation is concerned there is nothing new in such a notion; there could never be recovery for fraud unless the plaintiff had relied upon the fraudulent statement. but where deeds, other than misrepresentations, are involved a difficulty which is, perhaps, more than semantic arises. what is meant by "reliance"? one gets no guidance from the speeches of lords fraser and roskill in veitchi's case,56 but on a broad reading it seems to mean that the plaintiff must "look to" the defendant to safeguard his interests. lord roskill instances the case of the buyer who looks to the seller's, rather than the manufacturer's, skill and judgment under s.14(3) of the sale of goods act; in which case "reliance" appears to mean little more than the second proposition, that the situation must be "equivalent to contract". yet, as robert goff l.j. has suggested, "reliance" can mean something else; for, as he points out "every motorist relies on every other motorist in the vicinity to drive carefully",57and in this sense the reliance concept becomes subsumed within the concept of negligence itself and if this were so the way would be open for much wider liability than either hedley byrne or veitchi's case envisage. as far as the law now goes, however, it would seem that the purely economic loss is recoverable under this control mechanism where there is a situation "equivalent to contract" and reliance in the first of the senses just mentioned. why this restriction should be placed upon economic, as opposed to physical, loss is not explained. it may arise from the fortuitous fact that in hedley byrne and veitchi a contractual framework was involved. but awkward questions call for answers. if a manufacturer puts water into a ginger beer bottles8 which reaches me as the ultimate consumer why should i have no remedy against him while, by contrast, i would have a claim if he let a snail into the bottle and i were to contract a minor attack of gastritis?s9the answer seems to be that in the case of defective goods the 53. hedley byrne (5 co. ltd. v. heller (5 partners ltd. [1964] a.c. 465. 54. junior books v. veitchi (5 co. [1983] a.c. 520. 55. hedley byrne at p.529, per lord devlin. 56. supra n.54. 57. muirhead v. industrial tank specialities [1985] 3 all e.r. 70s, 714. 58. the interesting suggestion raised by stamp l.j. in dutton v. bognor regis united building co. [1972] 1 qb. 373, 414-415. 59. in donoghue v. stevenson the injury almost fell into the de minimis category. 105 the denning law journal situation between plaintiff and manufacturer is not "equivalent to contract"; but nor is it in the case of the snail. 60 or is the truth that there is an inarticulate premise that there is something more worth a remedy where physical loss is concerned than where economic loss is?61 unless this inarticulate distinction can be justified and made articulate in the form of a principle (which, it is submitted, it cannot) there seems little reason why the "neighbour" principle should not apply to economic as much as to physical loss. which suggests the need for an advance in the former field beyond the "equivalent to contract" situation. in this context it is important to note that in hedley byrne lord devlin himself said "i regard this proposition62 as an application of the general conception of proximity. cases may arise in future in which a new and wider proposition quite independent of any notion of contract will be needed. ,,63 this points to the desirability of easing the "floodgates" beyond the reliance/contract bar towards some wider concept of proximity. that, it is thought, is something that needs to be done. but the question is "what wider concept?" an answer was boldly supplied by an eminent chancery judge64 in ross v. caunters65 (where a legatee lost her legacy on account of a solicitor's negligence): proximity should be defined in the context by reference to the atkin test itself and recovery by the legatee thus permitted despite the absence of physical damage or any question of contract or reliance, in the sense of "looking to" the solicitor. and in ministry of housing and local gflvernment v. sharp66 the court of appeal took a similar bold step. is that the correct conclusion? if, as has been remarked above, the atkin principle is regarded as restrictive rather than permissive in that it is confined to direaly foreseeable consequences it seems, on the face of it, to provide as good an answer to the "floodgates" as any. no perfect mechanism can ever be devised and what is "proximate,,67 in the atkinian sense in relation to a given fact situation is always an open question: that is what the administration of justice is about. but it is suggested that it is desirable to raise the "floodgates" above the level of the penzance or veitchi tests and that these "policy" mechanisms are not 60. though one might perhaps interpose that there is just as much of a contractual framework between consumer and manufacturer as there was between plaintiff and sub-contractor in veitchi's case. 61. it is worth refuting the ridiculous sllggestion often made that economic loss should be irrecoverable because recovery is inhibited by the philosophy of the "market place". of course it is where business competition is concerned and that goes back to the gloucester grammar school case (1410) y.s. 11 hen.4, fo.47, pl.21 but not all economic loss arises in the course of competition. 62. namely, the "equivalent to contract" proposition. 63. [1964] a.c., at pp.530-531. 64. megarry v.-c. 65. [1980] ch.297. 66. [1970] 2 qb. 223. 67. in caltex oil (australia) ply. ltd. v. dredge wi//emstad (1976) 136 c.l.r. 529 the high court of australia, while apparently refusing to adopt the atkin test simpliciter, allowed recovery for economic loss caused as the result of damage to a third party's pipeline upon the basis of what they regarded as a restricted definition of "proximity" or "propinquity". but it is thought that the facts fitted the atkin fonnula. 106 economic loss: the floodgates "considerations which ought to negative, or to reduce or limit the scope of the duty.,,68 so far, so good. but there is one kind of "flood" that "proximity" cannot control. the case, already referred to, of the lost wages of blackburn ].'s miners. in such a case there is close proximity between the "drowner" of the mine and the workers: their presence and the loss of their wages could be readily foreseen and the loss of the wages was a direct result of the "drowning". yet blackburn]. clearly had it in mind that such losses were greater than anyone defendant could be expected to bear. some mechanism other than proximity is therefore needed to meet such a case. there is one possible, pragmatic, "floodgate" to hand. the problem of overwhelming loss is no stranger to the law: it is met by a number of statutes. in particular both in maritime and in aviation law statute and international convention limit the amount of liability. this is plain, and essential "policy". is it beyond the powers of a legal system which grapples with the problem of comparative fault in contributory negligence and solves the difficulties of bankruptcy and liquidation to devise a method of limiting the amount of liability by limiting the amount of claims where the loss is too great for one defendant to bear? 68. anns v. merton london borough council [1978] a.c. 728, 751-752: per lord wilberforce. 107 it all started with gunner james cameron haroey* this article is about lord denning who needs no introduction. it is not a learned analysis of his reasons for judgment. it focuses, for fun, on three aspects of his distinctive judicial writing style. before i researched the article, i had a clear recollection of two or three delightful denning judgments, such as beswick v. beswick. i i imagined that there were more than i could remember or knew of. my colleagues were of some help; however, their recollection, similar to mine, turned out to be more general than specific. i realized that i was going to have to explore this legendary corner of lord denning's judicial career the hard way. thus, i methodically perused all of his reported reasons for judgment. i uncovered not only additional denning gems, featuring his distinctive style of reciting the facts, but also i discovered what i call the unique denning opener and his remarkable cast of "old" litigants. first, i shall deal with his distinctive style of recounting the facts, then turn to his openers, and finally introduce you to his "old" litigants. it is obvious that lord denning very much enjoyed doing the facts. in most of the published cases of the court of appeal in which he was involved, he described the facts for the court in his reasons for judgment. recently, in his book the family story2 he confessed to something that had become obvious from his reasons for judgment. he is an inveterate story-teller. it was his distinctive style to recount the facts in the form of a story. on occasion in his reasons for judgment lord denning specifically referred to the facts as the story and to his recitation of the facts as a telling of the story. ionian bank ltd. v. couvreu? " ... the story is a little complicated and i must recite the facts." reid v. commissioner of police of the metropolis4 "the centre-piece of this story is a pair of candelabra ... " ·ofthe faculty of law, university of manitoba, winnipeg, canada. this article was first published in xvii gazelle (1983) of the law society of upper canada. 1. [1966] ch. 538. 2. butterworths, london, 1981. 3. [1969] 2 all e.r.651, 652. 4. [19731 qb.551, 557. 67 the denning law journal cory lighterage ltd. v. t g. w u 5 "in this action the leading actor is andrew shute, but he is the only one on the stage who has not given evidence. to some he is the hero. to others the villain of the piece." bryanston finance ltd. v. de vries6 "this case reads like a play. it has many acts and scenes. on the stage now the principal characters are ... in previous scenes there appeared ... " midland bank trost co. ltd. v. green7 "the greens are a lincolnshire farming family. this story might be called the green saga.,,8 one of lord denning's most remarkable pieces of storytelling is, of course, his report on the security aspects of the profumo affair.9 this is no ordinary royal commission report. lord denning himself uses it as one of his examples of his style of writing in the family story. lord denning's storytelling approach to the subject made the report perhaps the most readable, engaging h.m.s.o. publication ever. in the family story lord denning describes his approach to judgment writing: "i try to make my judgment live .. i start my judgment, as it were, with a prologue as the chorus does in one of shakespeare's plays to introduce the story. then i go from act to act as shakespeare does each with its scenes drawn from real life ... i draw the characters as they truly are using their real names ... i avoid long sentences like the plague: 10 because they lead to obscurity. it is no good if the hearer cannot follow them ... i refer sometimes to previous authorities i have to do so because i know that people are prone not to accept my views unless they have support in the books. but never at much length. only a sentence or two. i avoid all reference to pleadings and orders they are mere lawyer's stuff. they are unintelligible to everyone else. i finish with a conclusion an epilogue again as the chorus does in shakespeare. in it i gather the threads together and give the result" 11 thus, the denning style of reciting the facts is a crisp, captivating story, featuring short, stacatto sentences and occasionally a touch of whimsy. his accounts of the facts may be quite brief (and this is probably the image of them that most people carry in their mind), for example r. v. hillingdon borough council 12 or they may be 5. [1973] 2 all e.r.558, 561 6. [1975] 2 all e.r.609, 612. 7. [1979] 3 all e.r.28, 30. see also [1982] 2 w.l.r.l, 4. 8. see similarly wallersteil/er y. moir [1974] 1 w.l.r.991, 955; re brocklehurst [1978] 1 all e.r.767, 769; and new zealand guvemmrot property corporation y. h.m. cs s. ltd. [1982] 2 w.l.r.837, 839. 9. cmnd. 2152 of 1963. 10. in the family story. supra note 2, at p. 203 lord denning expresses his admiration for a predecessor, george jessel, m.r.: "he used short, staccato sentences." 1i. supra note 2, at pp. 207-208. 12. [i980j 3 all e.r.413. 68 it all started with gunner james several paragraphs, even pages long, for example broome v. cassell ltd. 13 in any event, brief or lengthy, the result is a very effective, delightful short story. the instantly recognizable denning factual account was not present in his earliest reported reasons for judgment, such as fletcher v. fletcher,14 norton v. norton, 15 minister of pensions v. chennell, 16 and miller v. minister of pensions.17 his recitation of the facts in these and other early cases is unremarkable. and then the unmistakable style was there. it all started with gunner james: "gunner james joined the army on july 24,1941, at the age of thirty-two. in january 1943, he had a swelling on the right side of his neck which gradually spread. he was sent to hospital, when a diagnosis of hodgkin's disease was made. in april, 1943, he was discharged on account of it. he claimed a pension. it was rejected by the minister. in february, 1946, he died on account of the disease. his widow claimed a pension. her claim was also rejected by the minister. she appealed to a tribunal who, on september 18, 1946, rejected her appeal. she did not apply to the tribunal for leave to appeal within the six weeks allowed by the rules of the tribunal. on november 21, 1946, the case of donovan v. minister of pensions, which was also a case of hodgkin's disease, was decided in favour of the widow. when knowledge of this decision came to mrs james's advisers, they sought from the tribunal leave to appeal out of time. the tribunal itself and the president of the pensions appeal tribunals refused the application, refusing to extend the time or to grant leave. the widow now applies for leave to appeal." 18 i do not suppose that many of you, even devotees of denning judgments, recall the forgoing case. it is not entirely in the classic denning style. for instance, the second sentence should end at "neck" and the next sentence should be, "it gradually spread". similarly, the third sentence should end at "hospital" with the remainder made into a new sentence. however, james v. minister of pensions is the seminal judgment. the refinement, over the years, in the denning style can be seen in deeble v. robinson,19 stupple v. royal insurance co. ltd.20 and r. v. hillingdon borough council: 21 deeble v. robinson "mr deeble has a milk round. he sells milk to people at the doors of their houses. he runs his business from a dairy building where he keeps his 13. [1971] 2 qb.354. 14. [1945] 1 all e.r.582; this is lord denning's first reported judgment. is. [1945] p.56. 16. [1946] 2 all e.r.719. 17. [1947] 2 all e.r.372. 18. james v. minister of pensions [1947] k.b.867. 19. [1954] 1 qb.77, 81. 20. [1971] 1 qb. so, 67. 21. supra note 12, at p. 417. 69 the denning law journal equipment, refrigerator, spare milk bottles, and so forth, and a stable where he keeps his horse and float. his round is seven streets adjoining the premises. he does not actually have a shop as ordinarily understood. his lease of these premises is coming to an end, and he wants to stay on there. this depends on whether the premises come within the definition of a "shop" in the leasehold property (temporary provisions) act, 1951." stupple v. royal insurance co. ltd. "on friday, september 27, 1963, near longfield, in kent, a gang of robbers laid in wait for a bullion van. it was about mid-day. they had come down from london in convoy. they were in a land rover, a dormobile and a lorry. all three vehicles had recently been stolen. whilst waiting for the bullion van, they went on to a village green and kicked a ball about. it was a red plastic ball. the local folk saw them. soon afterwards the gang left. they got themselves ready. they had iron bars in their hands. one had an indian club. they ambushed the bullion van. they must have known its movements. it belonged to martins bank and had been round the branches collecting money. one was the branch at welling. the robbers stopped the van and overcame the driver and guard. they stole £87,300 los., and went off." r. v. hillingdon borough council "she was born in ethiopia. her name was sophia abrahim. in 1975 she was 19 years of age. she had a baby son david aged 2. an englishman then came to addis ababa. he was alan streeting. he was aged 25. he asked sophia to marry him. he told her he was divorced. they were united in marriage in addis ababa on 17th may 1975. she kept her marriage certificate. he brought her and the baby over to england where they stayed for some weeks. he was employed by an american company and worked in libya. he took a flat in athens in greece. sophia and her child lived there and he went to and fro to them. he also brought them again to england for a holiday. then tragedy struck. in libya he had a heart attack and died. it was on 27th april 1979. his company flew his body back to england for burial. they arranged for sophia and her little boy to come here for the funeral. it was at brighouse in yorkshire. it then transpired that he had not been divorced at all. his wife was still alive in england. so his marriage to sophia was a bigamous marriage. it was a nullity. but his company took pity on her. they arranged for her to go back to greece to sort out her affairs there. they paid her fare. but when she arrived at athens airport, she was not allowed to enter, on the ground that she had not a valid residency permit. so she returned to england. that was on 25th may 1979. his company then put her and the baby up at an hotel here. but they could not keep her indefinitely. so they went with her to the housing department at hillingdon. that was on 4th june 1979. they presented her and her child as homeless. the housing department made all sorts of inquiries, from greece and from ethiopia, to see if she could be found a home there. but these were all fruitless. the hillingdon housing department 70 it all started with gunner james arranged for temporary accommodation for her at a guest house, for bed and breakfast, at £7.75 a night. she also got supplementary benefit (national assistance) from which she could pay for her other meals and clothes etc. but eventually the hillington council decided that they could pay no longer for her accommodation." everyone has his favourite denning judgments. in the family story lord denning chose the following cases to illustrate the style: beswick v. beswick, 22 hinz v. berry,23 lloyds bank ltd. v. bundy,24 ex p. hook,25 and mcllkenny v. chief constable of the west midlands.26 to those cases i add videan v. british transport commission,27 broome v. cassell ltd., 28 gray v. barr,29 reid v. commissioner of police of the metropolis,30 and re brocklehurst.31 in these judgments lord denning demonstrates his ability to deal in humour, pathos, tragedy, intrigue, and adventure. space does not permit the inclusion of excerpts from all of these cases. i have chosen four which are representative. ex p. hook "to some this may appear to be a small matter, but to mr harry hook, it is very important. he is a street trader in the barnsley market. he has been trading there for some six years without any complaint being made against him; but, nevertheless, he has now been banned from trading in the market for life. all because of a trifling incident. on wednesday, october 16, 1974, the market closed at 5.30. so were all the lavatories, or 'toilets' as they are now called. they were locked up. three-quarters of an hour later, at 6.20, harry hook had an urgent call of nature. he wanted to relieve himself. he went into a side street near the market and there made water, or 'urinated', as it is now said. no one was about except one or two employees of the council, who were cleaning up. they rebuked him. he said: 'i can do it here ifi like.' they reported him to a security officer who came up. the security officer reprimanded harry hook. weare not told the words used by the security officer. i expect they were in language which street traders understand. harry hook made an appropriate reply. again we are not told the actual words, but it is not difficult to guess. i expect it was an emphatic version of 'you be off.' 22. supra note i, at p. 549. 23. [1970] 2 qb.40, 42. 24. [1975] qb.326, 334. 25. [1976] 1 w.l.r.1052, 1055. 26. [1980] 2 w.l.r.689, 696 et seq. 27. [1963] 2 qb.650, 660. 28. supra note 13, at p. 371. 29. [1971] 2 all e.r.949. 30. [1973] qb.551. 31. supra, note 8. for the denningaddict 1 suggest for additional reading the following cases which deserve "honourable mention" at least: wilson v. rickett cockrell ltd. [1954j 1 qb.598; roe v. minister of health [1954] 2 qb.66; la/ie v. halloway [1967] 2 all e.r.129; pett v. greyhound racing association ltd. [1969] 1 qb.125; balogh v. crown court at st albans [1974] 3 all e.r.283; and r. v. local commissioner for administration jor the n. and e. area of eilgland [19791 2 all e.r.881. 71 the denning law journal at any rate, the security officer described them as words of abuse. touchstone would say the security officer gave the 'reproof valiant' and harry hook gave the 'countercheck quarrelsome'; as you like it, act v, scene iv. on the thursday morning the security officer reported the incident. the market manager thought it was a serious matter. so he saw mr hook the next day, friday, october 18. mr hook admitted it and said he was sorry for what had happened. the market manager was not satisfied to leave it there. he reported the incident to the chairman of the amenity services committee of the council. he says that the chairman agreed 'that staff should be protected from such abuse.' that very day the market manager wrote a letter to mr hook, banning him from trading in the market." lloyds bank ltd. v. bundy "broadchalke is one of the most pleasing villages in england. old herbert bundy, the defendant, was a farmer there. his home was at yew tree farm. it went back for 300 years. his family had been there for generations. it was his only asset. but he did a very foolish thing. he mortgaged it to the bank. up to the very hilt. not to borrow money for himself, but for the sake of his son. now the bank have come down on him. they have foreclosed. they want to get him out of yew tree farm and to sell it. they have brought this action against him for possession. going out means ruin for him. he was granted legal aid. his lawyers put in a defence. they said that, when he executed the charge to the bank he did not know what he was doing: or at any rate that the circumstances were such that he ought not to be bound by it. at the trial his plight was plain. the judge was sorry for him. he said he was a 'poor old gentleman.' he was so obviously incapacitated that the judge admitted his proof in evidence. he had a heart attack in the witness-box. yet the judge felt he could do nothing for him." videan v. british transport commission "there is a small country station at north tawton on the main line between okehampton and exeter. the stationmaster was mr videan, who lived in the station house with his wife and four small boys, aged six, five, three and two. they had been living there for three years, the youngest being born there. the station house was on the up side of the line, and their garden and chicken run on the other side. there was a footbridge for passengers and a barrow crossing for porters with barrows. mrs vide an used sometimes to take the pram with a child across the barrow crossing, and one of the staff occasionally took a child across by the hand. but the children by themselves usually went by the footbridge. mrs videan said: 'the children were always trained to do that. they were not allowed to run about on the tracks ... but they did run out on to the platform. that was quite another matter.' on sunday morning, july 26, 1959, the stationmaster was having the day off, and porter canniford was in charge. the stationmaster was going to take his family to exeter for the day. his wife was busy in the house getting 72 it all started with gunner james everything ready for their outing. the stationmaster was outside playing with the children until the time came to go. suddenly they found that richard, the youngest, aged two years and two months, was missing. the stationmaster looked into the door. his wife said to him: 'where's richard?' he said: 'isn't he with you?' she said: 'bring him in when you find him. i want to get him "ready".' the stationmaster went out, through the booking hall into the booking office, and asked porter canniford, 'have you seen richard?' the porter said 'no.' the stationmaster went out on the platform followed by the porter. they saw the little boy in the 'four-foot' of the up line, a little way from the barrow crossing, and at the same moment, on that very line, a trolley coming towards him. it was the sort of trolley railway men use nowadays for getting about the line, driven by a petrol motor and capable of considerable speeds. it was then by the home signal, about 120 yards away, coming fast along the line towards the place where the little boy stood. the stationmaster and the porter held their hands up, signalling the trolley-driver to stop. but he still came on. they ran forward. the stationmaster was in front, running as fast as he could; the porter a little behind. the trolley-driver started to slow down, but not very much. he seemed not to appreciate the danger. still he came on. he cannot have seen the child. only at the last moment did he see him. only then did he apply his brake. the porter said: 'as he got very close, i could see he was really hanging on to the hand-brake, pulling as hard as he could.' but it was too late. then the stationmaster, in a desperate effort to save his son, leaped from the platform on to the line, in the very path of the trolley. he saved his son it seems that he pushed him down below the trolley but he was himself killed in the instant. the little boy was badly injured. he was five and a half months in hospital, but has recovered a good deal." broome v. cassell ltd. "the jury gave £40,000 damages. it is a large sum. how did they get to it? what facts were known to them? these i will tell. 1. introduction early in july 1942 a large convoy of 35 merchant ships it had the code number pq17 was sailing in the arctic seas laden with materials of war for russia. they were between north cape and spitzbergen near the icefields. at that time of the year there was no nightfall. it was light all the time. the convoy was approaching the dangerous part of the voyage. the german battle fleet had come up swiftly and secretly. it was lying in wait in alten fiord, just by north cape. it consisted of the most powerful warship afloat the tirpitzwith the cruisers hipper and scheer, and six destroyers. nearby, at banak, was an airbase whence the german aircraft could make sorties of 400 miles to bomb the convoy. under the sea there were german submarines watching through their periscopes for a chance to strike. the convoy would seem an easy target. it could only make eight knots. it 73 the denning law journal had to steam at the pace of the slowest. but it was in good hands; it was guarded by the royal navy. the close escort was under the command of commander broome, r.n., in the destroyer keppel. it consisted of six destroyers, which were very fast, and several converted merchantmen as naval escorts, which were much slower. in support was a cruiser covering force under rear-admiral hamilton in the london. it consisted of four cruisers and three destroyers. further behind, ready to do battle, was the home fleet under admiral tovey in the duke of york. july 4, 1942, saw the climax. enemy air attack was imminent. rear-admiral hamilton thought it best to play for safety. he 'instructed' commander broome to route the convoy to the northward so that it should be 400 miles from the enemy aerodrome. but commander broome was bolder. he did as nelson did. after all, 'instructions' were not orders. they were more in the nature of recommendations, as every naval officer knows. he kept an easterly course, even though it did bring him nearer the enemy. commander broome was right. he was the man on the spot. he had an independent command and was entitled to exercise his own judgment. he had to take advantage of low cloud when it gave cover. and he had been advised by the admiralty that the convoy should be kept 'moving to the eastward even though it was suffering damage.' so broome did not route it so much northward as hamilton suggested. he kept it moving eastward as well. his decision was afterwards approved by admiral tovey. later that day the expected attack came. suddenly at 8:22 p.m. 25 enemy aircraft appeared flying fast and low at the convoy. they were torpedo bombers and pressed home their attack with great determination. they sank two of the merchantmen. but the convoy and escort gave a good account of themselves. they shot down four of the attackers and went on in perfect formation. they were brave men. commander broome said to those nearby: 'provided the ammunition lasts, convoy pq17 can get anywhere.' soon after beating off this atack, there came a warning of fresh danger. this time it was the onset of enemy surface ships. the admiralty sent out three signals which arrived one after the other on the bridge of the keppel, and of the other ships. the signals were, of course, in cipher: '9.11 p.m. secret. immediate. cruiser force withdraw to westwards at high speed. 9.23 p.m. secret. immediate. owing to threat from surface ships convoy is to disperse and proceed to russian ports. 9.36 p.m. secret. most immediate. my 9.23 p.m. convoy is to scatter." the last message arrived so close on the heels of the one before that, when they had been deciphered, the signalman handed them both together to the commander. they spelt only one thing. the german battle fleet was about to attack. everyone expected to see masts appearing on the horizon. the order to 'disperse' meant that the convoy was to split up into smaller formations, 74 it all started with gunner james which were still under escort able to defend them. the next order to 'scatter' was more urgent still. it had never been given before, except once by the captain of the jervis bay, and he gave it only when the enemy cruisers were opening fire. it meant that the ships of the convoy were to scatter fanwise, each by himself, in every direction without escort. leaving the escorting force to engage the enemy. commander broome did as he was told. he took the keppel into the middle of the convoy and told the commodore that the convoy was to scatter. he knew that his destroyers could not tackle the enemy fleet by themselves. so he proposed to rear-admiral hamilton that they should join up with the cruiser force. rear-admiral hamilton at once agreed. so commander broome with his escorting destroyers joined the cruisers and came under the direct command of rear-admiral hamilton. the naval escorts (the converted merchantmen) were slow and could do little to protect the scattering convoy. so commander broome ordered them to proceed independently to archangel. he, with his destroyers, prepared to meet the enemy. but the threatened attack never came. the enemy fleet never appeared over the horizon. the order from the admiralty was a mistake. the first sea lord, admiral of the fleet sir dudley pound, had convinced himself that the tirpitz must have put to sea, whereas the intelligence reports indicated that she had not. but the order was given. the convoy scattered to the four winds. without protection, they were attacked by the enemy from the air and from beneath the sea. many were sunk. out of 35, only 11 reached russian ports: 153 merchant sailors were lost and vast quantities of war material went to the bottom. it was a tragedy. a severe blow to the allied cause. the officers made their reports. commander broome was not blamed by those superior to him. nor by his brother officers. admiral tovey reported: 'i do not consider that the commanding officer of the keppel was in any way to blame for the subsequent heavy losses. from the signals which he had received, he deduced, quite reasonably, that surface action was imminent: and was correct in his decision to concentrate his destroyers and join the rear-admiral commanding first cruiser squadron.' proof positive of the confidence in commander broome was that he was kept in sea-going commands and finished the war in command of the battleship ramillies. many persons afterwards wrote about the disaster. the official historian of the war wrote about it. he did not condemn commander broome. nor did mr winston churchill. the condemnation was made 20 years later by an author who knew nothing about the war, because he was a small boy at the time. david irving was determined to write 'an authentic account.' his regular publishers william kimber & co. ltd. refused to publish it. they thought it was too dangerous. so he got cassell & co. ltd. to publish it." 75 the denning law journal being a good storyteller, lord denning endeavours to attract and capture immediately the attention of the reader. to do this he employs an impressive array of what i call openers. these are the opening sentence(s) of his judgments. i have selected a number of them and organized them into these categories: the intriguing opener; the historical opener; the fatal and deadly opener; the "this is the case" opener; the editorial opener; the non-sequitur opener; the' "this is an interesting case" opener; the whimsical opener; and the picturesque opener. the intriguing opener hinz v. berry32 "it happened on april 19, 1964. it was bluebell time in kent." heywood v. wellers33 "it all started in a public house." levinson v. patent steam carpet cleaning co. ltd. 34 "it was a fine chinese carpet worth £900, but it needed cleaning." kavanagh v. chief constable of devon and cornwall35 "mr kavanagh wants to have a gun, perhaps many guns." ronds v. mcneil36 "a yorkshire farmer had a dangerous bull." re a companl7 "suspicion has fallen on a company." langston v. amalgamated union of engineering workers "joseph langston is playing a lone hand." application des gaz sa v. palks veritas ltd. 39 "this is the first case in which in this court we have had to consider the treaty of rome. it comes about because of a tin can." agbor v. metropolitan police commissioner4o "there is a civil war flaring in nigeria. sparks from it have come down in london. some have landed on no. 35, woodstock road, london, n.w.ll." western excavating (e. c. c.) ltd. v. sharp41 "mr sharp was only employed by the china-clay co. for 20 months. he left of his own accord. yet he has been awarded £658 as compensation for unfair dismissal. there seems something wrong about that award. \vhat is it?" 32. supra note 23, at p. 42. 33. [1976] q,b.446, 453. 34. [1978] q,b.69, 77. 35. [1974] q,b.624, 632. 36. [1955] 1 q,b.253, 256. 37. [1980] 1 all e.r.284, 285. 38. [1974] 1 all e.r.980, 983. 39. [1974] 3 all e.r.51, 53. 40. [1969] 2 all e.r. 707, 708. 41. [1978] q,b.761, 766. 76 it all started with gunner james james buchanan fs co. ltd. v. babco forwarding and shipping (u.k) ltd. 42 "one thousand cases of whisky were stolen. it was on friday evening, 24th january 1975." r. v. clerk to lancashire police committee, ex parte hook 43 "in 1976 rumours were rife in blackpool. gossip abounded. about the goings on of the chief constable of lancashire. he lived in the town. not only about the chief constable himself. but other police officers too. and well-known citizens." r. v. criminal injuries compensation ed., ex parte ince44 "it was soon after midnight on 14th/15th february 1971 in the bloomsbury area of london. men were seen acting suspiciously near the headquarters of the territorial army in handel street." the historical opener new windsor corp. v. mellor45 "today we look back far in time to a town or village green. the turf is old. animals have grazed there for hundreds of years. nowadays they are pleasant stretches of grass where people sit and talk. sometimes they play cricket or kick a ball about. but in mediaeval times it was the place where the young men mustered with their bows and arrows. they shot at the butts. there might be stocks there where offenders were put for their petty misdemeanours. in the month of may they set up a maypole and danced around it. we have no record of when it all began, but the poet tells us: 'on the green they watched their sons playing till too dark to see, as their fathers watched them once, as my father once watched me .. .'." jennings motors ltd. v. secretary of state for the environment46 "the village has an attractive name, dibden purlieu. it goes back to the times of the norman french." the fatal and deadly opener cooper v. williams47 "frederick leslie watkins was fatally injured in a road accident on december 4, 1959. he was driving a car. he himself was killed." 42. [197711 all e.r.518, 520. 43. [1980] 2 all e.r.353, 355. 44. [1973] 3 all e.r.808, 810. 45. (1975) 3 all e.r.44, 47. the poem quoted is "forefathers" by edmund blunden. 46. [1982] 2 w.l.r.131, 134. see similarlyex p. phansophar [19761qb.606, 615; sabol", and n'jiev. //. m. ai/ortlry-general [196511 qb.273, 289: and dat'is v.johnson [1978j1 all e.r.841, 846. 47. [1963j 2 qb.567, 576. 77 the denning law journal allen v. jambo holdings ltd. 48 "a man's head got caught in a propeller. he was decapitated and killed." the "this is the case" opener cummings v. granger49 "this is the case of the barmaid who was badly bitten by a big dog." allgemeine gold-und silberscheideanstalt v. customs and excise commissioners 50 "this is the case of the three smugglers." mcllkenny v. chief constable of west midlands police force51 "this is the case of the birmingham bombers." the editorial opener allen v. mcalpine c5 sons ltd. 52 "in these three cases the law's delays have been intolerable. they have lasted so long as to turn justice sour." pike v. pike53 "this is yet another case in which the doctrine of constructive desertion has been allowed to run wild." re stone and saville's contraa54 "counsel for the vendor referred to this case as a comedy of errors. it is no comedy, but a history of errors." bremer vulkan v. south india shipping corp.55 "when i was young, a sandwich-man wearing a top-hat used to parade outside these courts with his boards back and front, proclaiming 'arbitrate, don't litigate'. it was very good advice so long as arbitrations were conducted speedily: as many still are in the city of london. but it is not so good when arbitrations drag on for ever." regazzoni v. k. c. sethia (1944) ltd. 56 "the union of south africa is a country with a tremendous problem some sayan insoluble problem in regard to the races in her midst." marsden v. regan57 "this case ought to have been simple, but the lawyers have made it complicated." 48. [1980] 1 w.l.r.1252, 1254. 49. [1977] 1 all e.r.104, 106. 50. [1980j 2 all e.r.138, 139. 51. [1980] 2 all e.r.227, 231. 52. [1968] 1 all e.r.543, 546. 53. [1953] 1 all e.r.232, 235. 54. [1963] 1 all e.r.353, 354. 55. [1980) 1 all e.r.420, 425. 56. (1956) 2 qb.490, 511. see similarly commission for racial equality v. aman' plastics ltd. [1982] 2 w.l.r.972. 57. [1954] i all e.r475,482. 78 it all started with gunner james r. fs t. thew ltd. v. reeves58 "much of the litigation today is dominated by legal aid. the state subsidises one side by giving him unlimited financial assistance. it pays his lawyers' fees almost in full. it leaves the other side who is often of very moderate means entirely unassisted. he has to bear his own costs with no recourse against the other side even when he wins. this is a grave injustice to the unassisted party. parliament has done something to remedy it but the remedy is far from adequate. this case will show up the defects in the statute and in the regulations. it looks very much as if a hard-working husband and wife will be ruined by the fact that the other side was granted legal aid." r. v. chief constable of devon and cornwali59 "the coast of cornwall is beautiful. much of the inland is ugly. it is despoiled by china clay workings. not far from them there is open farmland with small villages dotted around. pleasant enough but not outstanding." the non sequitur opener rank film distributors ltd. v. video information centrio "it is, it is a glorious thing, to be a pirate king", said w. s. gilbert (the pirates of penzance, i). but he was speaking of ship pirates. today we speak of film pirates. it is not a glorious thing to be, but it is a good thing to be in for making money." cinnamond v. british airports authority61 "many years ago sir edward coke had a case about six carpenters. now we have a case about six car-hire drivers." the "this is an interesting case" opener southam v. smout62 "this is an interesting case." hussey v. palmer63 "this case is of very considerable interest." woodhouse v. nigerian produce marketing co. ltd. 64 "this is an important case." r. v. local commissioner for adminstration for the nand e. area of england 65 "this case is of legal significance, but more of human interest." 58. [1982] qb.172, 182. 59. [1982] qb.458, 465. 60. [1980] 2 all e.r.273, 277. 61. [1980] 2 all e.r.368, 380. 62. [1963] 3 all e.r.! 04, 105. see similarlybernays v. prosser [1963] 2 all e.r.321; pedlry v. cambridge newspapers ltd. [1964] 2 all e.r.794, 796; and dunfordv. dunford [1980] 1 all e.r.122, 123. 63. [1972] 3 all e.r.744, 745. see similarly blairv. tomkins and osborne [1971] 1 all e.r.468, 469. 64. [1971] 1 all e.r. 665, 667. see similarly wiltshire v. barrell [1965j 2 all e.r.271, 272 and r. v. sect. of state for the home department [1973] 3 all e.r.796, 798. 65. [1979] 2 all e.r.88i, 893. 79 the denning law journal r. v. secretary of state for the environment66 "we are here presented with a nice question." bankers tmst ltd. v. shapira67 "this is a new case." w v.l.68 "this is a sad case." re p.a. (an infant) 69 "this is a poignant case." gainsborough mixed concrete ltd. v. duplex petrol installations ltd. 70 "this is a short but fortunately a very rare point." meacock ~ co. v. abrahams7) "this is a troublesome and difficult case." the whimsical opener post office v. crouch72 "this case reminds me of the story of david and goliath, with a difference. goliath is winning all along the line. david has sought to find some stones in the brook called the industrial relations act 1971; but every one of them has so far bounced off the invincible goliath." tote investors ltd. v. smoker73 "the defendant has in the past occasionally had a wager on a horse-race. today she has been taking part in another game of chance or skillthe game of litigation." rejames74 "david emlyn james is a lawyer who has gone astray. he was a partner in a firm of five lawyers practising at lusaka in zambia ... james went off with a sum of £160,000 belonging to the firm or its clients. he disappeared. but the story goes that, with the money in his pocket, he gambolled round europe and came to rest for a while in england." braham v.j. lyons ~ co.75 "this case concerns an accident which took place ... in the sausage department of the defendant's ... food factory at cadby hall. at 2.30 in the afternoon the tea-break was called. the plaintiff, a married woman, was the first off towards the tea-bar. she was always, the judge said, pretty quick off the mark for her cup of tea." 66. [1976] 3 all e.r.90,92. see similarly peck v. allicarproperties ltd. [1971] i all e.r.517, 518. 67. [1980] 3 all e.r.353, 355. see similarly srem v. a.e.u. [1971] i all e.r.1148, 1151. 68. [1973] 3 all e.r.884, 886. 69. [1971] 3 all e.r.522. 70. [1968] 3 all e.r.267. 71. [1956] 3 all e.r.660, 661. 72. [1973] 1 w.l.r.766, 770. see similarly u.k.a.p.e. v. a.c.a.s. [1979j 2 all e.r.478, 480. 73. [1968] 1 qb.509, 514. 74. [1977] 1 all e.r.364, 367. 75. [1962] 1 w.l.r.1048, 1050. 80 it all started with gunner james ministry of defence v. jeremiah76 "a woman's hair is her crowning glory, so it is said. she does not like it disturbed: especially when she has just had a 'hair-do'." howard v. department of national savings77 "this case will be of interest to those in the civil service and elsewhere who are approaching retirement age. unlike me!" capital finance co. v. bra/8 "this case has been a battle of wits between the hirer and a finance company. the fortunes of war have fluctuated to and fro ... " riddick v. thames board mills ltd. 79 "it is eight years ago now since robert riddick, the plaintiff, was dismissed from his employment. yet the manner of it has reverberated through the law courts ever since. he was a shift engineer in a mill at worthington in cumberland ... tree trunks went in at one end of the mill. cardboard came out at the other end." shell international petroleum ltd. v. gibbs80 "a gigantic ship was used for a gigantic fraud." routhan v. arun district council81 "once again we have to consider the doctrine of unity. it says that in law "husband and wife are one and the husband is that one." i remember well that it was invoked when i used to prosecute in the magistrates' courts. a wife was travelling on the railway using her husband's ticket. when she put forward the excuse: 'we are one in the eyes of the law,' the collector replied: 'but not in the eyes of the southern railway.''' george mitchell ltd. v. finney lock seeds ltd. hz "many of you know lewis carroll's 'through the looking glass.' in it there are these words (ch. iv): '''the time has come," the walrus said, "to talk of many things: of shoes and ships and sealing wax of cabbages and kings -".' today it is not 'of cabbages and kings' but of cabbages and what-nots. some farmers ... ordered 30 lbs. of cabbage seed. it was supplied. it looked just like cabbage seed. no one could say it was not. the farmers planted it over 63 acres. six months later there appeared out of the ground a lot of loose green leaves. they looked like cabbage leaves but they never turned in. they had no hearts. they were not 'cabbages' in our common parlance because they had no hearts." 76. [1980] qb.87, 96. 77. [1981] 1 w.l.r.542, 543. 78. [1964] 1 w.l.r.323, 326. lord denning proceeds to tell the facts of this case using the analogy of a battle with attack and counter-attack and reference to positions and entering the lists. this is a framework which he used in at least two other cases, wallersleiller v. i\11oir, supra, note 8 and ex p. rossmil/ster lid. [1979) 3 all e.r.385, 396. 79. [1977] qb.881, 887. 80. [1982) 2 w.l.r.745, 771. 81. [1982] 2 w.l.r.144, 146. 82. [1982] 3 w.l.r.1036, 1040. this is the last judgment lord denning delivered. 81 the denning law journal the picturesque opener myers v. milton keynes development corporation83 "in 1962 life was peaceful in buckinghamshire. we mean in the northern part of it. it retained its old attractive qualities. bletchley was the little market town serving the villages and farms round about. two miles north of bletchley there was the little hamlet of walton. it had a manor house built in tudor times, and a few cottages." miller v. jackson84 "in summertime village cricket is the delight of everyone. nearly every village has its own cricket field where the young men play and the old men watch. in the village of lintz in county durham they have their own ground, where they have played these last 70 years. they tend it well. the wicket area is well rolled and mown. the outfield is kept short. it has a good club house for the players and seats for the onlookers. the village team play there on saturdays and sundays. they belong to a league, competing with the neighbouring villages. on other evenings after work they practise while the light lasts. yet now after these 70 years a judge of the high court has ordered that they must not play there any more. he has issued an injunction to stop them. he has done it :it the instance of a newcomer who is no lover of cricket. this newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. the animals did not mind the cricket. but now this adjoining field has been turned into a housing estate. the newcomer bought one of the houses on the edge of the cricket ground. no doubt the open space was a selling point. now he complains that when a batsman hits a six the ball has been known to land in his garden or on or near his house. his wife has got so upset about it that they always go out at week-ends. they do not go into the garden when cricket is being played. they say that this is intolerable. so they asked the judge to stop the cricket being played. and the judge much against his will, has felt that he must order the cricket to be stopped: with the consequence, i suppose, that the lintz cricket club will disappear. the cricket ground wiii be turned to some other usc. i expect for more houses or a factory. the young men will turn to other things instead of cricket. the whole village wiii be much the poorer. and all this because of a newcomer who has just bought a house there next to the cricket ground." 85 83. [1974] 2 all e.r.i096, 1098. 84. [1977] qb.966, 976. 85. see similarly slater v. clay cross co. ltd. [1956] 2 qb.264, 268; fairey v. southamptorl coullty coullcil [1956j 2 qb.439, 455; wyld v. silver [1963] i qb.l69, 180; huverillgham gravels ltd. v. secretary of state for the ellviroll/1/e1it [1975] 2 all e.r.931, 933; corpus christi college v. gloucestershire coulitycoullcil [1982] 3 w.l.r.849,851. 82 it all started with gunner james so there you have it, the distinctive denning style of writing and the unique denning opener. he did not always employ these techniques; many of his reasons for judgments are indistinguishable from those of his colleagues. however, when he used them his judgments became instantly recognizable. mind you other judges, either intentionally or without realizing it, have aped the denning judgment.86 can you imagine an actor doing a one-man show, "an evening with lord denning", based upon his judgments? perhaps the idea is far-fetched. in any event, such a show might well be brought to a close with one of lord denning's old folks. i imagine that you can easily guess whom i have in mind. there have been a number of characters who have appeared in lord denning's judgments. there was old herbert bundy of yew tree farm, 87old mr baker of dunsmore in buckinghamshire,88 old mrs millward whose will was contested,89 old mrs annie levenson who had one of the best pitches in the petticoat street market in london,9o and old mr jones91 the scrap merchant. but, his most memorable word sketch was of none other than old peter beswick: "old peter beswick was a coal merchant in eccles, lancashire. he had no business premises. all he had was a lorry, scales and weights. he used to take the lorry to the yard of the national coal board, where he bagged coal and took it round to his customers in the neighbourhood. his nephew, john joseph beswick, helped him in the business. in march 1962, old peter beswick and his wife were both over 70. he had had his leg amputated and was not in good health. the nephew was anxious to get hold of the business before the old man died. so they went to a solicitor, mr ashcroft, who drew up an agreement for them."n 86. see, e.g., lroin v. active builders [1973] 6 w.w.r.297; regina v. pi/ix [1980] i w.w.r.n 87. lloyds bank ltd. v. bundy, supra note 24. 88. inwards v. baker [1965] 2 qb.29. 89. millward v. shenton [1972] i w.l.r.711. 90. r. v. tower hamlets, ex p. kayne-lroenson [1975] 1 qb.431. 91. jones v.jones [1977] 2 all e.r.231. 92. beswick v. beswick, supra note'l, at p. 549. 83 what's right about rights? james allan* the end of the second world war, with its massive violations and obscenities, together with the new-found influence of the united states and its 200 year old constitution, has heralded or spawned a new era for rights more particularly the discussing of politics and morals in terms of the concept of rights. although first conceptualized by the ancient greeks, rights had their theoretical heyday in the 17th century; they had their revolutionary heyday in the 18th century; and then they were eclipsed by 19th century movements, either utilitarian or idealist, which could not or would not accommodate them. today they are again the major, perhaps the sole, currency of moral and political debate throughout the world. this paper will attempt critically to assess the validity of such a tendency. what then are rights? rights are not things. one may not find them floating in the atmosphere, either visible or invisible. nor are they sensations in the mind. to answer this question one must realize that the primary job of most legal words, l for example, 'liability', 'onus', 'right', 'duty', or 'negligence', is not to stand for or describe anything in the material or psychological world. rather it is to describe a function. accordingly, one ought not to abstract any such legal word from the sentence in which its full function can be seen. to elucidate a legal word best, look at the whole statment in which it has its characteristic use. thus asking" 'when is it accurate to say that one has a right to do or to refrain from something?' " is a much more apt formulation than asking "what are rights?" or simply discussing 'rights'. the former question does not presuppose that rights are things and therefore • lecturer in law, city polytechnic of hong kong. the author wishes to acknowledge the influence, generally, of jeremy bentham, david hume and h.l.a. hart on what follows. i. see h.l.a. hart's "definition and theory in jurisprudence" (1953) inaugural lecture, oxford, at 70l. q .r. (1954) or essays injurisprudence and philosophy (1983, clarendon press), pp. 2 1-48. in this article hart asserts that the common mode of definition largely fails with respect to the law as legal words do not have the straightforward connection with counterparts in the world of fact which ordinary words have (e.g. , 'trees', 'cancer', 'soccer'). most words are defined by placing them in a larger category and then differentiating them from other things in that category (genus el differentia). such a mode of definition breaks down in the legal realm, indeed in the whole non-material realm, because nothing 'corresponds' to legal words. the denning law journal avoids obfuscation.2 by more precisely posing a question one may eliminate some of the vagueness surrounding rights. yet if rights are not to be defined in the same way as things are, how shall they be understood? hohfeld3 and bentham4 understood that legal relationships are correlative. there cannot be rights in a vacuum. firstly there must be rules. rules lay down obligations or duties which are linked or correlated to rights. how can anyone have a right where no person or body has a corresponding duty? hollow and empty would any such right be. thus hohfeld reduces all legal relationships into a limited number of terms. a duty becomes "i must". a right becomes "others must". a power becomes "i can". an immunity becomes "others cannot". and a privilege becomes "i may".5 each relates to and depends on the others. a right, therefore, is to be understood in terms of whether the corresponding duty shall be performed or not. it may be thought of as an expectation guaranteed by legal rules. this foray into linguistics is to warn against treating abstract concepts as real things; they are not. 'fictitious entities' (e.g. 'inflation' or 'gravity') are man-made mental constructions used to help us categorize, label and understand a vast and nearly ungovernable experiential world.6 their 'existence' depends on the active powers of the mind operating through language. indeed the limits of language sometimes force us to resort to fictitious entities. such fictions7 in language are perfectly permissible if necessary and if speakers realize fictions are human creations without an independent existence. legitimate fictions make discussion possible; illegitimate fictions mystify and reify. language also has the power to command through the emotive connotations of many words.8 frequently words are non-neutral and carry suggestions of emotional attitudes. thus, to characterize another's opinions as 'reactionary', 'socialist', 'liberal', or 'marxist' is to use a word which carries the extra baggage of 'good' or 'bad'. it closes off debate, relying on the passions rather than reason. likewise, depending on the point of view favoured, alternatives such as 'assassinated-summarily executed', 'eloquent-bombastic', 'courageous-reckless' 2. as bentham and hart were aware, "though theory is to be welcomed, the growth of theory on the back of definition is not": ibid., pal. that is to say, one ought to avoid the need for theorizing simply because of the way words are defined and used. only in trying to answer "what is a right?" rather than explaining it does one need theory. other examples of this at a practical, though trite, level are given by robert thouless in straight and crooked thinking 7th ed. (1963, pan books ltd.), ch. 5. 3. see w. n. hohfeld's,fundamental legal conceptions as applied in judicial reasoning (1946). 4. see jeremy bentham's, works (bowring edition, 1838-1843) especially hisfragmenr on government therein. 5. in working with hohfeldian simplifications one must be alert that, like all insightful simplifications, a degree of common sense is needed to avoid distortion and misapplication. 6. in a sense language is paradoxicalits labels and categories are unduly confining and distorting and yet without language how could we think at all? 7. bentham first articulated a theory of fictions, in inchoate form, in his early workan introduction to rheprinciplesof morals and legislation: see,e.g., bums and hart's edition, pp.53 (footnote), 97,101-2, 114-5, 125 inter alia. 8. see thouless, supra n.2, ch.1. 2 what's right about rights or 'generous-extravagant' can be used to describe the same factual reality. in discussing rights, therefore, both the above linguistic dangers are to be avoided. firstly, we must understand rights functionally linked as they are to duties and pre-supposing some sort of rules. secondly, we must not allow emotive language to sway us, in and of itself. there is a tendency today to 'demand one's rights'. this may be in part because the word 'right' carries a non-neutral meaning; it has the notion of 'good' appended to it. to give someone his or her rights must be good; to refuse bad. one potential danger inherent in succumbing uncritically to such an appeal is that the ensuing proliferation of rights-claims may debase the whole currency of rights. tacitly all rights are then brought down to the level of the least valid claim. so let us proceed to consider the validity and desirability of political and moral debate being discussed in the language of rights while keeping in mind that clear thinking requires an awareness of the deficiencies and the power of language. throughout his life jeremy bentham made the point that talk of natural rights is simple nonsense; talk of natural and imprescriptible rights, rhetorical nonsense "nonsense upon stilts".9 what did he mean? by simple nonsense bentham was making the purely logical point that rules and systems precede rights. rights are something man adds to the world, not something he finds in it some sort of gift of nature. rights must follow rather than precede the establishment of systems (i. e. government) and rules. no rights, therefore, can exist anterior to civil society. as early communities formed and grew more complex 'rules', or more accurately 'modes of resolving and preventing disputes', 10 sprang up to allow for the smoother operating and greater security of the group. these rules grew up slowly by custom and habit. i i with the rules were attached obligations and duties on specific members and groups in the body politic. in turn, with the duties on some came corresponding rights to others. of course many people do not share this view of the evolution or origin of rights. some hold to the view that there are indeed non-legal rights,12or rather natural rights which attach to all human beings presumably by reason of their being humans. such a view, generally speaking, sees 'rights' not as human artefacts, not as dependent on social conventions or social recognition for their existence, but as 9. see bentham's anarchical fallacies and the ratianale of judicial evidence, both in the bowring edition (1838-1843) of his works. 10. karl llewellyn's 'law-jobs theory' was that there are certain needs that must be met for a human group to survive as a group and to achieve the purposes for which it exists. conflict and the divisive side of human nature threatens group survival. thus conflict-prevention and conflict-resolution (the "law-jobs") are a necessary pre-condition of group survival and effectiveness: see llewellyn, "the normative, the legal and the law jobs", 49 yalel.j. (1940) 1355as well as the cheyenne way (with hoebel and recently re-printed by the university of oklahoma press). 11. see david hume who throughout his writings (e.g., a treatise of human nature, essays) emphasized the influence and impact of habit and custom on human reason and human affairs. on this and other matters bentham owed a debt to hume (see, inter alia, halevy, the growth of philosophic radicalism 2nd ed. (1952). 12. see, e.g. , ronald dworkin, taking rights seriously (duckworth, n. y., 1978). on the question of 'moml' rights, as opposed to 'natural' or 'human' rights, see infra. 3 the denning law journal reflective of certain features of human nature. thus this theory makes rights objective and assigns them on the basis of 'natural' criteria. it must select some set of basic rights most congruent with natural facts. to the query, "which natural facts?", the response must involve some set of the facts of human nature. of course this reasoning, strictly speaking, limits the range of rights to humans and only humans.13 it also makes whatever set of rights is ultimately chosen as being congruent with human nature one that is eternal; homo erectus, the greek slave, the serf of the middle ages and the ante-bel/urn black slave, all being humans, have and did have the same rights as any citizen of new york, london or tokyo (albeit the former may not have been aware of their rights nor have had those rights as well protected). context is irrelevant to this analysis. choose those aspects of 'humanness' that give rise to certain rights and everything else must follow; now, in the past, and in the future, regardless of any other factors. and which specific aspects of human nature give rise to these rights? is it our god-given soul? this presumes much, lacks a scientific foundation, and raises more questions than it answers. is it our ability to reason? presumably then, somewhere along the course of evolution, once a creature has the ability to reason it suddenly acquires a full complement of eternal rights (or at least rights lasting until the species loses the ability to reason). and this is true"even if that creature is unaware of its rights; even if the whole world is unaware of its rights; even if the creature is not human. such natural rights theories seem to fly in the face of experience. this is the more noteworthy as most adherents of the position put it forward as a descriptive, not merely prescriptive, theory. yet only in the most abstract of senses, if at all, can it be said that all humans possess the same rights, even in today's world. most people presently existing are not able to claim these many rights supposedly due to them 'as humans'. how can one possibly assert that roman slaves did have the right to free speech or that persian captives did have the right not to be sold as slaves by their greek captors or that many of today's cambodians, vietnamese or even aborigines do have the right to liberty, to happiness, to free speech or even to life? such talk is meaningless, simple nonsense. bentham was right because he saw that this sort of parlance in terms of rights is criterion less, a mere expression of faith. there are others who defend non-legal rights on a different ground altogether, on the basis of a social contract. what rules and rights for social living .would people accept, or might they have accepted, if they set aside subjective biases and 13. it is submitted that one of the practical limitations of 'rights discourse' is here exemplified with reference to animal welfare concerns. forcing those concerned with the plight of animals to conduct their dialogue in terms of natural rights, or human rights, not only clouds the essential point that animals should never be made to suffer more than we, as humans, have determined to be absolutely necessary which, in itself, leaves open the question why humans should have this power. it also suggests that animals, as non-human species, perhaps lack certain of mankind's 'inherent' rights; the unspoken, indeed ineffable, conclusion being that their unnecessary suffering may be justifiable. conversely talk in terms of'animal rights' forces proponents to the verge of saying that all living beings have rights by virtue of being alive. experience, not to mention most dinner plates, shows that such claims are nowhere respected. is talk in such terms helpful or useful? 4 what's right about rights formed a detached judgement on the question? one is asked to imaginel4 a fictitious negotiation, a priori, in which humans, not knowing what their future position or status in the society will be, reach a unanimous agreement on what rights and distributions all of them will enjoy. we are told they can reach this agreement based on principled self-interest and reason. given certain premises that all reasonable beings would surely accept (e.g., that with one's future place in the hierarchy uncertain, everyone would choose the fullest degree of liberty applicable to all as well as the greatest possible distribution of wealth which did not unduly hamper productivity),15 one can move deductively to a set of rules and therefore rights to govern society. but how can it be said that a priori, or even in the light of experience, there are any premises on which every self-interested person would agree? does this mesh with our experience of the diversity of human nature? does this presume rationality and if so why? and, moreover, why is it in fact irrational to take chances on one's future, particularly if one has calculated the odds and they appear favourable? are liberty and self-respect really, a priori, to be preferred over wealth and material comforts? surely there are no universally agreed premises from which anything further can be deduced. thus if social contract theory is defensible at all it ought really to be couched in terms of majorities, with all the attendant difficulties that brings with it.16 even if, somehow, unanimity could be achieved in some big meeting taking place before time itself, why should the rules and rights formulated by the forefathers bind forever the progeny? this type of justification for non-legal rights throws responsibility for today's binding 'agreements' back onto those who came. before today, rather than making those actually in the society responsible for how it is set up. it lays the foundation for these rights by invoking the notion of'justice', based on some unreal negotiation, when it is far from clear or uncontroversial what justice is or how it can usefully be employed. "to invoke justice is the same thing as banging on the table: an emotional expression which turns one's demand into an absolute postulate. that is no proper way to mutual understanding. it is impossible to have a rational discussion with a man who mobilises 'justice', because he says nothing that can be argued for or against. his words are persuasion, not argument. the ideology of justice leads to implacability and conflict ... it precludes all rational argument and discussion of a settlement."i? 14. see john rawls, a theory of justice (oxford university press, 1973) for the most recent formulation of this approach where purportedly neutral people, unaware of the empirical world and their future place in it, strike a deal behind a so-called 'veil of ignorance'. the seminal works on social contract theory belong to locke and rousseau. 15. because, it is said, rational, self-interested people behind a veil of ignorance would not take chances with their future lot. 16. unscientific talk and speculation of majority preferences tend to wreak of the personal preferences of the speaker. 17. aif ross, on law and justice (1958), pp.274-75. 5 the denning law journal lastly, and perhaps most tellingly, social contract theory is suspect because no such negotiation about rights and distributions ever took place! thus a fiction has been introduced by the adherents of this theory. but why is a fiction needed? rules and rights grew up gradually, by custom, habit, trial and error, as humans slowly organized into ever larger and more complex social systems to capitalize on the benefits for security, production, and defence that communal living brings. why resort to a fiction, in this instance a prevarication, when the facts do not require it? fictions are properly used to help categorize and conceptualize experience, not to fly in its face. so if the warrant for the existence of non-legal rights, either in the form of natural rights theories or social contract theories, seems unconvincing then where is one left? moreover, is it possible that an ideology, such as that surrounding natural rights, might be illogical or indefensible on strictly rational grounds and yet productive of much good? do 'natural rights' and 'social contract' theories sow doubts which may reap a subsequent harvest of the outright rejection of all rights-based claims? the notion of rights this paper propounds conceives of a right as a man-made concept, a human artefact, which may be used to promote chosen ends, for example to create greater societal harmony or fairness. this is a welfare linked, consequentialist view of rights. admittedly many people view rights and utility as antithetical, combatants filled with mutual anathema, on the ground that pursuing the general welfare inevitably means doing so at the expense of individuals. yet if it could be shown that enforcing certain prescribed rights is desirable and promotes selected goals of general welfare better than permitting the unchecked pursuit of goals or policies, 18 there would be no conflict. all conceptions of rights, either legal or non-legal, have in common the notion that rights act as constraints on the pursuit of goals. thus it is, for example, that the right to free speech may occasionally clash with governmental policies aimed at greater social and racial harmony. how then can it be said that the existence of rights could better promote certain general welfare goals? the answer is paradoxical. the goals and policies of human beings and their institutions are sometimes, perhaps often, mistaken or flawed. knowing this to be true it is quite justifiable to curb a government's unqualified pursuit of ends or goals. it is a recognition of mankind's, or reason's, limitations. were we omniscient and infallible it would be rational never to obstruct, in any way, the pursuit of goals leading to greater general welfare. but we recognize our limitations, leading to a rational irrationality of sorts. experience of our species' failings leads to the awareness that recognizing certain rights or constraints on the pursuit of general goals will produce more welfare than if those rights were not recognized. their recognition will, on the whole, sufficiently limit errors and produce security and fairness to outweigh the possible success of well-intentioned policies. on this view, we should talk in terms of and adopt 18. that this is possible depends on the perception of human nature as neither inherently bad nor inherently good as well as a recognition that irrationality has some role in affairs human. 6 what's right about rights certain rights because they enhance the functioning of society or red~ce the risk of it going awry. we adopt a rights approach even though we know these specified rights will sometimes over-rule policies designed for, and potentially productive of, the general welfare. nevertheless, our received wisdom has taught us that our society is better off by providing for certain rights. 19 such rights may be illogical, in that they block policies which are intended for society's benefit. however, knowing what we do of tyranny, ineptitude, fallibility, and even good intentions, we choose to construct certain roadblocks all the same. this welfare based view of rights is not divorced from experience; it does not create eternal, objective rights; it does not link rights to some intangible, mysterious quality emanating from human beings; it does not rely on fictitious agreements between fictitious people which bind real people in real circumstances; it may deliberately tie the hands of some of its officials in their pursuit of efficiency but it does this when experience shows that a particular society is better off in the long haul with certain officials having one hand tied behind their backs; it does not indulge in 'cultural imperialism' by imposing, under the guise of universal abstractions, the standards of one society on a differently developed society; it allows one, at least partially, to taste the overpowering draught of a belief in rights without waking up with a hangover! this prescriptive view of how we should envisage and utilize rights and rightsterminology meshes well with our historical and empirical understanding. it recognizes that rules develop first with communal living. such rules in some way provide for obligations and concomitant rights. as a particular social group evolves so too do the rules that keep it together and thus the attendant obligations and rights. such a view of rights need not say there are only legal rights. it simply denies that there are the criterionless, so-called 'natural' or 'human' rights. the question of whether 'moral rights' might exist is left open. all that is demanded is that somehow moral rules be established first. if the view is taken that there are valid moral rules, either to which all could possibly agree20or which flow from some moral principle,21 then bentham's logical point that rights pre-suppose rules and obligations would be met. 19. this conception of rights is closely analogous to the view of democracy, not as the best possible system of government, but as the least bad; i. e., human nature being what it is, and power having a seemingly magnetic hold on rulers, democracy in this view is better than other forms of government because it allows the governed a regular opportunity to pass judgement on, even to throw out, an existing government with all the concomitant advantages such a threat carries with it (cf the economist, april 23-29, 1988, special article by karl popper.) such a view avoids mawkishness and undue adulation while recognizing the inefficiencies, compromises, slow reactions and short-term thinking that comes with democracy. 20. e.g. , that all promises should be kept or that killing is never justified. 21. e.g., utility. however there are serious problems with basing rights conceptions on utilitarian grounds as is explored and elucidated by h.l.a. hart in essays on bentham (clarendon press, 1982), ch.iv, particularly pp. 84-87. 'utilitarian entitlements' differ from what is thought of as non-legal rights because they: a) fluctuate with changing circumstances; b) signify 'ought' rather than 'must'; and c) do not create coercive sanctions. 7 the denning law journal to turn back now to discuss bentham's other barb "nonsense upon stilts".22 this refers to claims that certain rights, even be they legal rights, not only exist but are absolute, imprescriptible and boast an unending, unchangeable right to exist. but how can this be? at most there could only ever be one absolute right because when two allegedly absolute rights were to clash, one would have to give way. moreover, so called 'absolute rights' may conflict with one another, or, the same absolute right may conflict with itself in two or more different people meaning that one party who was owed this 'absolute right' would not be able to have it enforced. on the other hand, if all rights are man-made then no-one could prescribe imprescriptibility. we may want to set high hurdles to the removing or foregoing of specific rights but to purport to forbid future legislators from ever tampering with them under any circumstances is ludicrous, "nonsense upon stilts". a theory of rights which admits that a very high degree of consensus indeed may be required to dispense with society's most valued rights is different in kind from one which purports to shout "never". the doctrine of omnipresent, inalienable rights has no place in the real world of day-to-day social living. in his anarchical fallacies bentham also asserted that appeals to natural rights are sometimes "mischievous nonsense". the "mischievous nonsense" epitaph refers to the tendency that proclamations of universal rights have in exciting the dissocial passions by providing the purported justific:ations for disobedience to any government or measure an individual happens not to like. by conflating 'law as it is' and 'law as it ought to be'23 declarations of universal rights confuse law and a particular version of morality, allowing 'ought' and 'ought not' to take the place of 'is' and 'is not' in respect of the binding force and effect of laws. the anarchist is thus enabled to say, "this ought not to be the law, therefore it is not, so i am free not merely to censure but to disregard it." obversely, the reactionary is enabled to say, "this is the law, therefore it is what it ought to be and no criticism is valid. "24 in conclusion, it is suggested that prescribed rights, when understood functionally and not cloaked in emotive language, do have a significant role to play in our society. what is really at stake is preventing government from abusing its powers. the question of whether talk of natural rights is illogical and yet has been productive of good in human affairs and what such an admission would signifyis left for some future time. in any event, today's tendency to conduct all moral and political discourse in the lingua franca of rights is misplaced. as bentham said: "reasons for wishing there were such things as rights are not rights: a reason for wishing that a certain right were established is not that right want is not supplyhunger is not bread. "25 22. supra, p.3. 23. see hart, essays in jurisprudence and philosophy, supra n.2, essay 2, "positivism and the separation of law and morals", for an excellem defence of the distinction. 24. ibid, p.53 cf. introduction to the principles of morals and legislation, concluding note, paragraphs 26 and 27. 25. works ii, 501. 8 what's right about rights doubtless the current predominance of rights will ebb in the course of time. what the cause of that decline will be one would not hazard to predict. perhaps america, that great moralizing nation and most enthusiastic embracer of the language of rights, will lose its foremost world position to countries with a more asian, less individ·ualistic perspective. perhaps a new utopian ideology or collectivism or community-ism will attract sufficient adherents. marx himself rejected rights because he saw that they pre-supposed a conflict between the individual and the collective an unacceptable presupposition in any utopian world view and because he believed that abstract equality at the level of 'rights' merely concealed the real economic power structure. again, perhaps liberalism will continue its retreat. classic liberalism and the debate of political and moral questions in terms of rights are closely interwoven. both are founded on presumptions of rationality, individualism and progress (i. e., the u.s. world-view writ large). today these three presumptions are under attack on all sides. finally, perhaps a cynicism will come to the fore and it will be asked what 'rights' have given the vast majority born into subjection and poverty, not freedom of any real kind. if there be an eventual lessening in the importance of rights terminology, one hopes that a clear understanding of the logic and functioning of rights will preserve their benefits so that only the excesses are lost. in the meantime, it must be admitted that in most western societies today it is power-conferring to be able to claim a right. indeed, in the west it is still the ideal language in which ethnic minorities and women can express their claims. all the same, though, it is counter-productive to speak solely in terms of rights. far too many people today speak and act, even think, as though rights were things; as though rights could exist before and without corresponding rules and duties; as though all rights were absolute and imprescriptible; as though rights were given mankind, with his soul, by god; as though it were never misleading to inject rights terminology into every debate; and as though all these misconceptions could not possibly infect an otherwise healthy and useful tool. 9 51 denning law journal 2018 vol 30 special issue pp 51-77 the role, independence and accountability of the auditor general: a comparative constitutional analysis john hatchard* * professor of law, buckingham law school; co-director, university of buckingham centre for extractive energy studies. 1 transparency international (ti kenya) v attorney general [2018] eklr [5] (mwita j). 2 gouriet v union of post office workers [1977] 1 qb 729, 762 (lord denning) quoting the words of thomas fuller. 3 see for example the african charter on democracy, elections and governance, article 10 which provides that ‘state parties shall entrench the principle of the supremacy of the constitution in the political organization of the state’. ‘the ally of the people’1 ‘be you ever so high, the law is above you’2 abstract the auditor general plays a key role in the constitutional framework that is designed to support good governance. this article critically reviews the constitutional position of the auditor general. it assesses the extent to which, in practice, office-holders enjoy the necessary individual and institutional independence and security of tenure to enable them to carry out their constitutional mandate, especially in the face of efforts by some political leaders and senior public officials (‘politically exposed persons’ (peps)) to abuse their position through acts of corruption and misuse of public office. it also explores the effectiveness of the support and accountability mechanisms for auditors general. in doing so, the article reviews the position of the auditor general in the constitutions of a number of anglophone african states. keywords: auditor general; constitutional role of; individual and institutional independence of; politically exposed persons; anglophone african constitutions. introduction the constitution is the supreme law of a state3 and as a former chief justice of south africa, justice ismail mohammed, once observed, it is not simply a document which mechanically defines the structures of government and the relations between the government and the governed, but it is: 52 the role, independence and accountability of the auditor general: a comparative constitutional analysis [a] mirror reflecting the national soul, the identification of the ideals and aspirations of a nation; the articulation of the values binding its people and disciplining its government.4 the words ‘disciplining its government’ emphasise that whilst constitutional office-holders enjoy significant powers and privileges, they are bound to act in accordance with its ‘good governance’ values that include integrity, transparency and accountability.5 the legislature traditionally plays an oversight role over the executive in such matters. in reality this has proved of limited value, not least due to the dominance of the ruling party in many countries. thus modern constitutions now often enshrine a range of independent watchdog bodies each enjoying a distinct mandate designed to secure good governance. for example, offices of the ombudsman investigate complaints from members of the public into alleged maladministration by public officials, anti-corruption commissions work to prevent corruption in the public service whilst human rights commissions provide a vehicle for individuals to seek redress against public officials for a breach of their constitutional rights. added to this list is the auditor general whose constitutional mandate is to audit and to report annually to the legislature on the use of public funds. including the auditor general in this framework of ‘state institutions supporting constitutional democracy’6 emphasises that this is not an isolated and somewhat remote office but part of a scheme that is designed to ensure that the good governance values enshrined in the constitution apply to the daily administration of the country at all levels. in essence, such institutions form an additional branch of government. this article critically reviews the constitutional position of the auditor general. it assesses the extent to which, in practice, the office-holders enjoy the necessary individual and institutional independence and security of tenure to enable them to carry out their constitutional mandate, especially in the face of efforts by some political leaders and senior public officials (hereinafter ‘politically 4 state v acheson [1991] (2) sa 805 (nm) 813, a-b. see also the comments of the supreme court of ghana in taffour v attorney general [1980] glr 637, 647–48. 5 see for example the constitution of kenya, article 10 and the preamble to the constitution of zimbabwe. 6 a phrase used to describe such institutions in the constitution of south africa 1996, ch 9. the denning law journal 53 exposed persons’7 (peps)) to abuse their position through acts of corruption and misuse of public office. it also explores the effectiveness of the support and accountability mechanisms for auditors general. in doing so, the article reviews the position of the auditor general in the constitutions of a number of anglophone african states (collectively referred to as the ‘constitutions’).8 these have been chosen as most are based on the westminster export model constitution and, although much amended or replaced, still share a similar structure. the article is divided into the following parts. part 1 explores the constitutional role of the auditor general in maintaining transparency and accountability in public finances whilst part 2 considers the basic provisions for developing an effective auditing role. parts 3 and 4 then analyse the constitutional provisions in support of individual and institutional autonomy of the office and office-holder. part 5 examines the mechanisms to support and oversee the work of the auditor general whilst part 6 assesses the constitutional provisions for the removal of the auditor general. part 7 then provides a conclusion. part 1: the constitutional role of the auditor general in maintaining transparency and accountability in public finances i) the challenge of peps the history of corruption and the looting of state assets by african peps is a long and depressing one. the well-documented case of sani abacha highlights to challenge facing many states. abacha was the head of state in nigeria (and thus a pep) who had seized power in a military coup in 1993. between 1992 and 1998 he and his family accumulated wealth at an extraordinary rate, including extracting huge sums from the central bank of nigeria by raising a series of demands for 7 for the purposes of this article, the term ‘peps’ refers to ‘individuals who are or have been entrusted domestically with prominent public functions, for example heads of state or of government, senior politicians, senior government, judicial or military officials, senior executives of state owned corporations, important political party officials’: see financial action task force international standards on combating money laundering and the financing of terrorism & proliferation: the fatf recommendations (2012) glossary. 8 examples are drawn from ghana, kenya, malawi, namibia, nigeria, south africa, uganda, zambia and zimbabwe. however, it is not the intention of the article to consider the constitutional position of the auditor general in each jurisdiction. 54 funds to meet spurious national security needs.9 frederick chiluba, the then president of zambia, later used the same ‘national security’ tactic to loot state funds.10 other well-known cases involve theft of state development funds by diepreye alamieyeseigha, a former state governor of bayelsa state in nigeria,11 the inflation of the price of government contracts by mahmoud thiam, a former minister of mines in guinea12 and the widespread abuse of public funds by teodoro obiang, the son of the president of equatorial guinea. as a result, countless people throughout africa have been (and remain) victims of a breakdown of basic infrastructure and public services. there are ongoing efforts recover the proceeds of corruption that were laundered abroad and for their return to the victim states, albeit this remains work in progress. whilst such efforts are laudable, less attention has been paid to preventing such criminality by peps in the ‘victim’ states themselves. what is striking about each of the above cases is the seeming lack of any accountability of the peps for their actions due to the failure of (or lack of) effective constitutional accountability mechanisms. this is not surprising given that peps are the most powerful political individuals in any state and can ‘control the controls’. for example, by preventing, or undermining, domestic investigations into corruption and money laundering and controlling the operation of international cooperation mechanisms designed to trace the proceeds of corruption.13 they are often assisted in their criminality by powerful banking and other financial institutions through which the proceeds of corruption are laundered as well as by imaginative and inventive professional money launderers.14 the task of preventing such criminality by peps is therefore a daunting one but the suitably adapted words of lord denning (quoted above) suggest how this can be done: ‘be you ever so high, the constitution is above you’. thus the 9 much of the activity of the abacha family members is described in the case of companie naga d’importation sa v australia and newzealand banking group queen’s bench division (comm) 27 february 2001 (unreported). upheld on appeal [2003] ewca civ 1101. 10 the facts are set out in attorney general of zambia v meer care and desai [2007] ewhc 952 (peter smith j). see also the discussion below. 11 see nigeria v santolina investment corp [2007] ewhc 3053 (qb). 12 the facts appear in united states of america v thiam: government’s sentencing memorandum 25 august 2017 <www.justice.gov/criminal-fraud/fcpa/cases/mahmoudthiam> accessed 3 october 2018. 13 john hatchard, combating corruption: legal approaches to supporting good governance and integrity in africa (edward elgar 2014) 279 et seq. 14 see generally the report by the financial action task force professional money laundering (fatf 2018). the role, independence and accountability of the auditor general: a comparative constitutional analysis the denning law journal 55 challenge is to develop and maintain effective constitutional accountability mechanisms that are capable of holding peps to account for their use (or abuse) of public finances. this is the onerous and challenging role played by the auditor general. ii) the ‘ally of the people’ article 10 of the united nations convention against corruption (uncac) emphasises the need for each state party to take the necessary measures ‘in accordance with the fundamental principles of its domestic law’, to ‘enhance transparency in its public administration, including with regard to its organisation, functioning and decision-making processes, where appropriate’. this includes taking steps to ensure fiscal integrity, transparency and accountability in government and the public service. further the uncac conference of states parties (the cosp) has acknowledged that ‘efficient, accountable and transparent service delivery is one of the key components in building an anti-corruption environment in the public sector’.15 the key role played by auditors general in enhancing this goal is echoed in article ix of the commonwealth principles16 which were endorsed by commonwealth heads of government in 2003. as yilmaz and beris have pointed out, accountability addresses a number of elements including providing for transparency in the use of public funds and public accessibility to such information.17 however, the key to accountability is ‘control’. this requires an independent audit body or bodies to ensure fiscal integrity, i.e. that the powers of such office-holders are not abused or misused and that there is accountability for retaining ‘sound and transparent public expenditure and financial management systems’.18 this has the dual purpose of both encouraging 15 cosp resolution 6/6 2015, follow-up to the marrakech declaration on the prevention of corruption (2015), preamble. all the african states discussed in this article are state parties to the uncac. 16 commonwealth (latimer house) principles on the accountability of and relationship between the three branches of government. article ix states ‘independent bodies such as … auditors general … and similar oversight institutions can play a key role in enhancing public awareness of good governance and rule of law issues’. 17 serder yilmaz and yakup beris ‘good governance and the emergence of a new accountability agenda’ in gabor peteri (ed), finding the money: public accountability and service efficiency through fiscal transparency (local government and public service reform initiative, open society initiative, 2008) 30. 18 ibid. 56 ‘ethical behaviour by making unethical behaviour hard to accomplish and easy to detect’ and helping to bring to light any abuse of power.19 the position of auditor general is enshrined in all the constitutions20 and as the supreme audit authority, the office-holder has responsibility for auditing on an annual basis the accounts of all government and other state institutions,21 publishing an annual report and submitting this to the legislature for scrutiny and debate. thus the office-holder is the key constitutional figure in overseeing the proper use of public resources and, if necessary, of publicly exposing any abuse of public funds. this role is neatly explained by mwita j in transparency international (ti kenya) v attorney general:22 … [t]he auditor general is an ally of the people. while parliament is the peoples’ representative, the auditor general provides parliament with accurate and independently derived audit information on state organs and public bodies expenditure [and] thus ensures that there is public sector accountability.23 the effective performance of this responsibility is neatly highlighted in two cases. in 2017 a report by the zambian auditor general alleged that officials in the ministry of education had diverted donor funds provided for poverty alleviation projects into off-shore bank accounts through the use of shell companies. this revelation led to the united kingdom, ireland, finland and sweden suspending aid for the project to zambia whilst a number of senior peps were dismissed by the zambian president, edgar lungu.24 in 2013, forensic investigations by malawi’s auditor general uncovered the fact that significant amounts of government money had been misappropriated by a number of peps in what became known as the ‘cashgate scandal’. this quickly led to a major investigation (which is ongoing) which revealed that ‘some highly and strategically placed politicians and public/civil servants conspired to defraud 19 ibid. 20 thus a statutory provision referring to the auditor general as the ‘statutory’ head of the office violates the constitution: see the ti kenya (n 1) [83]. 21 see for example constitution of kenya, article 226(3). 22 ti kenya (n 1) [5]. the case is considered in detail below. 23 in the case of re the matter of the independent electoral and boundaries commission of kenya [2011] eklr, the supreme court of kenya also helpfully described independent commissions and bodies such as the office of the auditor general as ‘people’s watchdogs’: [59]. 24 bbc news report dated 18 september 2018. the role, independence and accountability of the auditor general: a comparative constitutional analysis the denning law journal 57 the government of malawi of large sums of money’.25 as mr justice kapindu neatly put it: in september 2013, gates to what was meant to be a clandestine and non-detectable criminal syndicate of fraudsters and money launderers were flung open. information revealing an unprecedented fiscal scandal gradually unfolded in a manner an unsuspecting observer would have been forgiven to think was a masterfully scripted piece of fiction. it was a shocking reality. billions of kwacha had been embezzled from the national fiscus by some unscrupulous people.26 part 2: towards an effective auditing role requiring auditors general to ‘exercise their powers and perform their functions without fear, favour or prejudice’ is a constitutional imperative.27 yet the zambian and malawian cases illustrate the point made by the constitutional court of south africa that the work of the auditor general ‘inherently entails the investigation of sensitive and potentially embarrassing affairs of government’,28 and those of peps in particular. in order to enable auditors general to carry out their constitutional role of effective public sector auditing, eight core principles (the core principles) were recognised in the mexico declaration on supreme audit authority independence (the mexico declaration).29 these cover issues relating to independence, security of tenure, investigative powers, and unrestricted access to information. these core principles are noted throughout this article.30 i) establishing and maintaining an independent office core principle 2 states that the independence of the auditor general is an essential requirement for proper public sector auditing. this emphasises the fundamental 25 republic v lutepo [2015] mwhc 491(high court of malawi) (kapindu j) [7]. 26 lutepo (n 25 [1]). 27 constitution of south africa 1996, article 181(2). 28 quoting from ex parte chairperson of the constitutional assembly: in re certification of the constitution of the republic of south africa, 1996 [1996] zacc 26, 1996 (4) sa 744 (cc), 1996 (10) bclr 1253 (cc) (first certification) [163]. 29 agreed at the xix congress of the international organization of supreme audit authorities (intosai). 30 the african organization of supreme audit institutions collaborates with the intosai. 58 requirement of enshrining the independence of the office and office-holder in the constitution and is discussed in part 4 below. ii) providing ‘a sufficiently broad mandate’31 in carrying out their constitutional role effectively, auditors-general must be empowered to audit all state bodies or public entities. in some constitutions, the specific bodies and entities are listed.32 for example, the article 187(2) of the constitution of ghana provides: the public accounts of ghana and of all public offices, including the courts, the central and local government administrations, of the universities and public institutions of like nature, of any public corporation or other body or organisation established by an act of parliament shall be audited and reported on by the auditor-general. similarly, article 188(1) of the constitution of south africa provides: the auditor-general must audit and report on the accounts, financial statements and financial management of (a) all national and provincial state departments and administrations; (b) all municipalities; and (c) any other institution or accounting entity required by national or provincial legislation to be audited by the auditor-general. a key to a successful audit is unrestricted access to all relevant documentation or premises.33 this is emphasised in article 187(3) of the constitution of ghana: … [t]he auditor-general or any person authorised or appointed for the purpose by the auditor-general shall have access to all books, records, returns and other documents relating or relevant to those accounts. access to sensitive ‘national security’ information provides a particular challenge for, as noted earlier, there are several examples where peps have stolen state assets under the cover of spurious ‘national security’ needs. this focuses attention on the extent to which auditors general enjoy in practice the 31 core principle 3. 32 for a useful discussion on the scope of the auditor general’s powers, see khumalo v auditor general [2013] szhc 56 (high court of swaziland). 33 core principle 4 refers to ‘unrestricted access to information’. the role, independence and accountability of the auditor general: a comparative constitutional analysis the denning law journal 59 ‘unrestricted access to information’ required for carrying out their functions,34 including that relating to expenditure on ‘national security’. this was the focus in the high court of kenya case of transparency international (ti kenya) v attorney general.35 iii) the ti case in this important case, the petitioners submitted that a number of sections of the public audit act 2015 (paa) were unconstitutional both in purpose and effect as they tended to ‘interfere with the independence and mandate of the auditor general, an independent constitutional office’.36 the constitution of kenya provides, amongst other things, that the auditor general is ‘subject only to the constitution and the law and independent and not subject to direction or control by any person or authority’.37 further, that in carrying his/her constitutional mandate the ‘auditor-general may audit and report on the accounts of any entity that is funded from public funds’ (my emphasis) and ‘an audit report shall confirm whether or not public money has been applied lawfully and in an effective way’.38 one provision of the paa that was challenged was section 40. mwita j noted the section required the auditor general ‘to hold a pre-audit meeting at the highest level to agree on areas to audit and the appropriate audit approach when auditing national security organs and even allows vetting of officers to conduct the audit’.39 in addition, he noted that section 42 of the paa barred the auditor general from questioning government policy objectives during audits.  in an impressive and thoughtful judgment, mwita j declared these sections unconstitutional. having discussed the constitutional provisions relating to the independence of the auditor general he continued: flowing from the exposition above, it leaves no doubt on the unconstitutionality of sections 40 and 42 of the act…. the auditor general has a constitutional obligation under article 229(4)(h) to audit and report on the accounts of state organs public bodies and any entity funded by public money. this cannot be done if the auditor general has to seek permission by holding meetings with 34 core principle 4. 35 petition 388 of 2016; [2018] eklr. 36 ti kenya (n 1) [77]. 37 article 249(2). 38 articles 229(5), (6). 39 ti kenya (n 1) [118]. 60 higher authorities as proposed by section 40 before carrying out the audit. subjecting officers to vetting before audit would leave room for state organs and public bodies to decide who to audit them. as regards the limitations imposed in section 42, as mwita j explained: the auditor general cannot also confirm the viability of the policy objectives funded by the people of kenya when section 42 suggests that he should not question policy objectives funded by the people. this has the effect of stifling his independence. a statute cannot seek to impose conditions on the auditor general’s audit approaches when the constitution gives him mandate to do his work without direction or control from any person or authority. this violates national values and principles of governance including integrity, transparency and accountability in article 10 and financial openness in article 201 of the constitution. (emphasis added)40 it followed that the wide constitutional mandate of the auditor general included the right to scrutinise spending by all entities that were publicly funded and this included the national intelligence service, the kenya defence force and the national police service. given the vast sums of money lost by states when national security becomes a veil for corrupt activity by peps, requiring transparency in spending on ‘national security’ is a milestone in seeking to address such criminality.41 understandably public confidence and trust in national security financing requires an appropriate balance between secrecy and transparency. this emphasises the importance of having a demonstrably independent appointee holding the office of auditor general. the case also emphasises the supremacy of the constitution. thus any attempt to undermine or restrict the constitutional role and powers of the auditor general by legislation must be declared unconstitutional. it also recognises the role of the auditor general as the ‘ally of the people’ and emphasises the role of the 40 ti kenya (n 1) [118–19]. constitution of kenya, article 10 states: ‘the national values and principles of governance in this article bind all state organs, state officers, public officers and all persons’ when carrying out their public functions. these include ‘good governance, integrity, transparency and accountability’. 41 for a helpful discussion on this area, see transparency international (uk) report ‘out of the shadows: promoting openness and accountability in the global defence industry’ (2016) <https://ti-defence.org/wp-content/uploads/2018/09/out_of_the_shadows_web3. pdf> accessed 25 october 2018. the role, independence and accountability of the auditor general: a comparative constitutional analysis the denning law journal 61 office-holder as an independent watchdog body. further it demonstrates the role of civil society organisations in supporting and publicising the work of such constitutional bodies. it is of interest that the locus standi of the petitioners in the ti case was not questioned. in attorney general for zambia v meer care and desai42 peter smith j in the high court of england and wales was satisfied that the auditor general in zambia had the power to scrutinise defence procurement contracts. the position in the other african jurisdictions is not clear. perhaps it is time for the civil society organisations in those jurisdictions to follow the lead of ti kenya and test the matter in the courts. part 3: constitutional provisions in support of individual and institutional autonomy i: the appointment process as with other oversight bodies, it is essential that the appointment of the auditor general is made through a demonstrably fair and transparent procedure. this is essentially a confidence-building exercise for government, public officials, citizens, civil society and donors alike in the integrity, independence and competence of the appointee. whilst considerable attention has been paid in modern constitutions to the appointment process of members of other oversight bodies, the position of the auditor general often remains unsatisfactory. there are three key issues here: (i) the qualifications for appointment; (ii) the nomination process; and (iii) the appointment process itself. i) qualifications for appointment curiously, few of the constitutions lay down any specific qualifications for appointment. in south africa the auditor general must be ‘… a fit and proper person to hold that office. specialised knowledge of, or experience in, auditing, state finances and public administration must be given due regard in appointing the auditor-general’.43 more specifically, in kenya the auditor general must ‘have extensive knowledge of public finance or at least ten years’ experience in auditing or public finance management’.44 such a background is surely a prerequisite for any such appointment. 42 n 10. 43 section 193(3). 44 constitution of kenya, article 229(2). 62 ii) nominating the candidate for appointment in most of the constitutions it is the president who has the sole power to nominate the candidate.45 there is no justification for this position for it does not bring with it any confidence in the independence of the president’s choice. a preferable approach is for the nomination to emanate from a separate body. this is the position in nigeria46 and namibia47 where the recommendation for appointment is made by the federal civil service commission and public service commission respectively. of course, it raises the question as to the independence of the commissions themselves. thus in nigeria the commission comprises a chairman and not more than fifteen other members, who ‘shall, in the opinion of the president, be persons of unquestionable integrity and sound political judgment’.48 in namibia there is a stronger formulation. the public service commission consists of a ‘chairperson and not less than three nor more than six other persons nominated by the president and appointed by the national assembly by resolution’. it ‘shall be independent and act impartially’.49 there is no provision for any public involvement in the nomination process. iii) the appointment process the constitutions contain a variety of procedures concerning the appointment process albeit with the legislature being involved in most jurisdictions.50 the most common procedure is for the president to appoint the auditor general ‘with the approval of the legislature’51 or ‘subject to ratification’ by the legislature.52 this is a weak approach for the president is able to hand-pick their chosen candidate and then have the (normally) cooperative legislature 45 it is recognised that separate legislation may make provision for the selection process but it is argued that the appointment process is so fundamental that it must be enshrined in the constitution to avoid any weakening of the procedure by subsequent legislation. 46 constitution of nigeria, section 86(1); constitution of namibia, article 127(1). 47 constitution of namibia, article 32(3)(i). 48 constitution of nigeria, 3rd sch, para 10. 49 constitution of namibia, article 112(3). there is also a concern that the bodies making the recommendation are themselves subject to scrutiny by the auditor general. 50 in ghana, article 70(1) of the constitution provides: ‘the president shall, acting in consultation with the council of state, appoint … the auditor-general’. given the presidential influence over the council, this does not hold out strong hopes of an independent assessment of the matter. 51 for example in namibia, uganda, zimbabwe and kenya. 52 for example in zambia. the role, independence and accountability of the auditor general: a comparative constitutional analysis the denning law journal 63 rubber-stamp the appointment by a simple majority. a stronger formulation is found in the constitution of malawi which provides that the appointment must be confirmed by the national assembly by a majority of the members present and voting.53 in south africa the support of at least 60 per cent of the members of the national assembly is required.54 the rationale for such a requirement was noted by mogoeng cj in the constitutional court of south africa in helen suzman foundation v president of the republic of south africa and others: 55 … [i]n the case of the public protector and auditor-general the constitution goes further, requiring that the recommendation be approved by a supermajority. these are the two institutions of accountability whose gaze … is fixed firmly on the political branches; their task ‘inherently entails investigation of sensitive and potentially embarrassing affairs of government’56. in nigeria the appointment is subject to confirmation by the senate57 which has the power to reject a presidential nomination.58 the role of the auditor general as the ‘ally of the people’ raises the issue of public involvement in the appointment process. regrettably, the only constitution to address this important point is the constitution of south africa where section 194(6) provides that the ‘involvement of civil society in the recommendation process [for the appointment of the auditor general] may be provided for as envisaged in section 59(1)’. section 59(1) states that ‘the national assembly must … facilitate public involvement in the legislative and other processes of the assembly and its committees’. all of the constitutions provide that the president formally appoints the auditor general. this is unexceptional. however, the current procedure for appointment in most constitutions arguably provides the president with far too 53 section 184(1). 54 article 193(5). 55 [2014] zacc 32, 2015 (1) bclr 1 (cc), 2015 (2) sa 1 (cc) [159]. 56 quoting from ex parte chairperson of the constitutional assembly: in re certification of the constitution of the republic of south africa, 1996 (n 28) [163]. 57 constitution of nigeria, section 86(1). 58 in december 2016, the senate rejected the nomination by president buhari of ibrahim magu as the chairman of the economic and financial crimes commission based on an adverse ‘security report’ from the state security service. the power of the senate to do so was upheld by the abuja federal high court in ojamo v attorney general of the federation of nigeria (2018 unreported). 64 much influence, especially given the perceived weakness of the legislature in many jurisdictions. if the auditor general is to be, and be seen by the public as being, an ‘ally of the people’ whose mission as an independent constitutional office-holder is to protect public finances, then there must be confidence in the transparency and reliability of the appointment process. arguably the objective is the same as with judicial appointments: i.e. to appoint ‘a professionally competent person of proven integrity’ with candidates being drawn from as wide a pool as possible. it follows that restricting the nomination process to the president is unacceptable and that there should be an opportunity for the public involvement in the process. part 4: constitutional provisions in support of individual and institutional autonomy ii: administrative and financial autonomy article 187(7) of the constitution of ghana neatly encapsulates the independence of the auditor general: ‘in the performance of his functions under this constitution or any other law the auditor-general … shall not be subject to the direction or control of any other person or authority…’59 the office and office-holder must therefore be entirely independent of government60 including the public service commission (psc),61 a key point as the psc itself is subject to the audit process. i) financial autonomy core principle 8 states that an auditor general requires: ‘financial and managerial/ administrative autonomy and the availability of appropriate human, material and monetary resources’. this means that the administrative expenses of the office of 59 ti kenya (n 1) [117]: mwita j also noted that ‘as the [holder] of an independent office, he is subject only to the constitution and the law and is not subject to direction or control of any person or authority’. 60 the point was also emphasised in thomas v attorney general of trinidad and tobago [1982] ac 113, 124 (lord diplock), where he observed that the purpose of such provisions was to insulate members from political interference exercised directly upon them by the government of the day. 61 a point specifically made in the constitution of namibia, article 127(3). the role, independence and accountability of the auditor general: a comparative constitutional analysis the denning law journal 65 the auditor general must be charged on the consolidated fund.62 it also follows that the recruitment of staff and other staffing matters are solely a matter for the office-holder and thus the public service commission plays no part in the process. in essence, ‘… the workings of the auditor general including recruitment and discipline cannot be subject to the public service commission or any other authority’ and any provision to the contrary violates such independence.63 the importance of the point is illustrated by the fact that in several countries ‘advisory boards’ have been established which threaten this independence. for example, in kenya, the audit advisory board (aab) was established by the public audit act 2015, its principle function being to ‘advise the auditor general on how to discharge his/her mandate under the constitution’. in the ti case, mwita j highlighted the independence of the auditor general which was enshrined in article 249(2) and which provided that the office-holder is not under ‘the direction or control of any person or authority’.64 the role of the aab was therefore an ‘interference with his institutional and individual independence’ which altered the ‘constitutional architecture of the independent office of the auditor general and violated article 249(2)’.65 he therefore had no hesitation in declaring the provision inconsistent with the constitution of kenya. this is a most welcome ruling and should encourage civil society organisations in other jurisdictions to seek judicial review of the constitutionality of any domestic legislation adversely affecting the office of the auditor general. for ghana the matter is more complex in that the audit service board (asb) is established by article 189 of the constitution of ghana. its membership comprises (a) a chairman and four other members appointed by the president, acting in consultation with the council of state; (b) the auditor general; and (c) the head of the civil service or his representative.66 its functions directly impact on the independence of the auditor general. articles 189(2) and (3) provide that ‘the appointment of officers and other employees in the audit service, other than the auditor general, shall be made by the audit service board, acting in consultation with the public services commission’. articles 189(2) and (3) also provide that the asb ‘shall, acting in consultation with the public services commission … determine the terms and conditions of service 62 this includes all salaries, allowances, gratuities and pensions payable to or in respect of persons serving in the audit service: see for example article 187(14) constitution of ghana. 63 ti kenya (n 1) [88] (mwita j). see also [101]. 64 ti kenya (n 1) [114]. 65 ti kenya [116] (mwita j). 66 article 189(1). 66 of officers and other employees in the audit service’. these provisions constitute a direct interference with the institutional and individual independence of the auditor general and are inconsistent with article 187(7) of constitution of ghana which was noted earlier. this is another fruitful issue for a civil society organisation to take up in the courts. ii) security of tenure core principle 2 states that auditors general must enjoy security of tenure. inevitably, this is linked to the term of office for the incumbent. here the constitutions vary considerably. the majority provide for a fixed, non-renewable term with the length varying between five years and twelve years. in namibia the auditor general holds office for five years but is eligible for re-appointment.67 the danger of a fixed-term appointment is that the experience, expertise and public confidence in the office-holder is likely to be lost. further, given that there is no constitutional provision relating to the time-frame for appointment of a new office-holder, there may be a lengthy hiatus (deliberate or otherwise) before the new appointment is made by the president. this can significantly affect the operation and effectiveness of the office, especially where ongoing investigations into possible criminality by peps are concerned. the different approaches perhaps reflect the uncertainty as to the position of the auditor general. in practice the constitutions almost invariably provide for a fixed-term appointment to other ‘national institutions’. yet these are largely multimember bodies where a periodic change of membership is inevitable. as the work of the auditor general ‘inherently entails investigation of sensitive and potentially embarrassing affairs of government’ including any potential wrongdoing by peps, the office-holder is in a very different position from those in other national institutions.68 given this reality, arguably the office-holder must enjoy the same terms and conditions as that of a senior judge. suitable illustrations come from nigeria where the position of the auditor general is similar to that of a judge, i.e. she/he holds office until retiring age69 and from ghana where the auditor general is appointed until retirement age.70 67 article 127(1). 68 the same point applies to the appointment of the director of an anti-corruption commission. 69 section 87(2). 70 article 187(12). the role, independence and accountability of the auditor general: a comparative constitutional analysis the denning law journal 67 part 5: supporting and overseeing the work of the auditor general the chiluba case illustrates the failure of an auditor general to perform his constitutional responsibilities. as noted earlier, the then president of zambia, frederick chiluba and several of his close associates (all peps) looted large sums of state money under the guise of national security needs through what was known as the zamtrop account. during the entire time the criminality was taking place, the auditor general remained inactive and also failed in his constitutional duty to make annual reports to parliament.71 as peter smith j explained in attorney general for zambia v meer care & desai: mr siame, the auditor general failed properly to exercise his duties or alternatively chose not to exercise the duties required of him probably because of the intimidatory nature of chungu [chiluba’s national security chief and co-conspirator] and the unwillingness of the auditor general to challenge him and thus the president.72 however, payments though the zamtrop account were still subject to scrutiny by the auditor general. yet, as peter smith j noted: there are provisions for the issue of certificates to the auditor general on a quarterly basis. i observe that there were indications of audit approvals in the early 1990s but none has been discovered for the period the subject matter of this action... this highlights the pressure peps can exert on auditors general and emphasises once again the significance of maintaining the independence of the office-holder and his/her staff. it also emphasises the need to ensure that effective ‘guarding of the guards’ safeguards are in place. i) the role of parliament reflecting core principle 5, i.e. the right and obligation to report on their work, a typical constitutional requirement is for the auditor general to submit his/her report to the legislature within a specified time period after the end of the preceding 71 see now constitution of zambia, article 121(4). 72 n 10. the payments were also facilitated through the bribery of a senior public official in the ministry of finance. 68 financial year. a specialist multi-party public accounts committee (or equivalent) is then to review the report and may call any ministers, public officials or others to explain any discrepancies. the annual report may be supplemented by ad hoc reports. the legislature is then required to debate the report of the auditor general and to make recommendations or give instructions for follow-up action.73 for example, article 229(8) of the constitution of kenya provides that ‘within three months after receiving an audit report, parliament … shall debate and consider the report and take appropriate action’.74 such a provision should be enshrined in every constitution. the chiluba case illustrates the challenge of making such scrutiny effective in practice. the auditor general was under a constitutional mandate to lay an annual report before parliament but never did so. parliamentarians failed to pursue this. thus whilst constitutional safeguards did exist their failure meant that chiluba and his associates were able to carry out their criminal conspiracy. in essence, through the intimidation or bribery of key public officials their criminality was hidden from view by the failure of the constitutional safeguards. 75 the extent to which parliamentary scrutiny is effective in practice is questionable. for example, a report published on behalf of the african parliamentarians network against corruption found that ‘too few african parliaments have effective committee systems, and it is rarely possible to properly scrutinise the behaviour of ministers or the senior civil servants who work with them’.76 this highlights two potential issues. first, the extent to which the appropriate expertise and experience is available in order for parliamentarians to assess and interpret the reports of the auditor general. second, given the reality 73 core principles 5–7 recognise (i) the right and obligation of supreme audit authorities to report on their work; (ii) the freedom both to decide the content and timing of audit reports and to publish and disseminate them; and (iii) the need for effective follow-up mechanisms on their recommendations. 74 see for example constitution of ghana, article 187(5) and (6) and constitution of nigeria, section 85(5). the constitution of kenya, article 229(8) provides that ‘within three months after receiving an audit report, parliament … shall debate and consider the report and take appropriate action’. 75 for another glaring example of a failure by a parliamentary committee to address a corruption issue, see roger tangri and andrew mwenda, ‘politics, donors and the ineffectiveness of anti-corruption institutions in uganda’ (2006) 44(1) journal of modern african studies, 101. 76 joanne davis parliamentarians and corruption in africa: the challenge of leadership and the practice of politics (the parliamentary centre, ottawa 2009). the role, independence and accountability of the auditor general: a comparative constitutional analysis the denning law journal 69 of executive control over parliamentary business, whether there is the commitment or ability on the part of parliamentarians to do so.77 it means that additional support mechanisms are required. ii) the role of public officials and whistleblowing whilst a discussion on whistleblowing is beyond the scope of this article, a few comments in relation to the auditor general are appropriate. the use of whistleblowers is a potentially vital means by which to break through the secrecy surrounding corruption cases involving peps. the need for states to develop effective whistleblowing schemes is reflected in article 8(4) of the uncac which provides that each state party must consider: … [e]stablishing measures and system to facilitate the reporting by public officials of acts of corruption to appropriate authorities, when such acts come to their attention in the performance of their functions. the auditor general clearly falls into the category of an ‘appropriate authority’. a cosp resolution also calls on uncac states parties to establish ‘measures and systems to facilitate the reporting of incidents’ which may be considered to constitute convention offences.78 it is trite that corruption and abuse of office by peps requires the assistance or acquiescence of others, both within and outside the public service and information provided by whistleblowers is one of the most common ways in which instances of such criminality are identified.79 this emphasises the importance of having in place effective whistleblowing laws and mechanisms which facilitate reporting to an appropriate authority, and in particular, the auditor general. arguably, this includes placing a duty on public officials to report corrupt practices or other misuse of office within the public service. this is clearly contentious, not least because of the dangers this may well pose to the whistleblower and his/her family. the argument for doing so is set out neatly in the explanatory 77 akech also suggests that key parliamentary committees are themselves implicated in corruption and therefore take no effective steps to address the reports of the auditor general: see migai akech ‘abuse of power and corruption in kenya’ (2011) 18(1) ind j global legal stud 342. 78 uncac conference of states parties resolution 6/6 of 2015: follow-up to the marrakech declaration on the prevention of corruption (2015) para 4. 79 unodc the united nations convention against corruption: resource guide on good practices in the protection of reporting person (2015) 3. 70 memorandum to the council of europe code of conduct for public officials which notes that whilst this could create tensions amongst public officials, ‘the passive or tolerant attitude of public officials regarding breaches would be more harmful for public administration and society as a whole’.80 in fact anti-corruption legislation in south africa already places a duty on any person who holds a ‘position of authority’ and who ‘knows or ought reasonably to have known or suspected that any other person’ has committed a serious corruption offence to report the fact to any police official.81 this position is potentially complicated by state security legislation which criminalises the unauthorised disclosure of government documents/information.82 given that the auditor general is specifically authorised to have access to all government documentation, including national security information, there is no reason why such a reporting mechanism is not put in place. iii) the role of civil society/the media civil society organisations (csos) can play both an oversight role and a supportive role. the oversight role involves the monitoring of the work of the auditor general. for example, in the chiluba case the failure of the auditor general to submit annual reports to the zambian parliament and the failure of parliamentarians to address the matter represented a fundamental breakdown of the constitutional safeguards. by directing media attention to this situation csos would have raised public awareness of this failure and called for an explanation. this provides a ‘safe’ and constructive role for csos in that attention is not being drawn to any allegation of corruption or other wrongdoing by peps or a ‘cover-up’ but merely highlighting the constitutional responsibility of the auditor general. where concern arises regarding a failure to carry out the constitutional mandate, csos may also consider lodging a complaint with another constitutional ‘watchdog’ body. for example, in the ouko case (see below), the complainant had previously lodged a series of complaints concerning a breach of the constitutional 80 para 70. 81 prevention and combating of corrupt activities act (no 12 of 2004) section 34. see also section 39(1) prevention and combating of corruption act 2007 (tanzania). as suggested above, a requirement to report to the auditor general would be more appropriate. 82 for example, during his investigation into the corruption by peps in kenya, justice bosire specifically referred to the effect of the law and oath of secrecy on silencing public officials: see republic of kenya report of the judicial commission of enquiry into the goldenberg affair (2005) 842. the role, independence and accountability of the auditor general: a comparative constitutional analysis the denning law journal 71 obligations of the auditor general with the kenya ethics and anti-corruption commission. such a failure arguably also falls within the jurisdiction of the office of the ombudsman (or similar national institution) which has a mandate to investigate complaints of ‘maladministration’.83 key supportive work of csos includes undertaking public education initiatives to highlight the constitutional role of the auditor general as the ‘ally of the people’. helping people to understand the constitutional safeguards and focusing attention on their effective operation (or otherwise) can arguably make a real contribution towards developing transparency and accountability in the management of public affairs. in addition, csos can play a useful role in assisting parliamentarians to understand and ensure the implementation of the constitutional safeguards with regard to public sector finance.84 in order to assess the work of the office, public access to annual reports of the auditor general is essential. in the ti kenya case, for example, the petitioner challenged the constitutionality of section 72 of the paa which recognised the right of public access to such reports ‘except where such access may unduly jeopardise state security’. it was argued by the petitioner that any limitation on access to the reports must satisfy the test for the limitation on the enjoyment of rights and fundamental freedoms enshrined in the constitution. whilst not deciding the point, mwita j noted that any ‘limitation on grounds of national security would have to be justified’ particularly in view of the right to freedom of information enshrined in article 35 of the constitution of kenya.85 thus once published, reports by auditors general become public documents and it was therefore the constitutional right of every citizen to have access to the document subject to any constitutional rather than statutory limitation. the role of the courts in supporting csos should not be overlooked. this is epitomised by the ti kenya case in which transparency international (kenya) had locus standi (a point seemingly unchallenged) to lodge a petition in support of the 83 although it is not clear in some cases as to whether the jurisdiction of an ombudsman is strictly limited to public officials: as has been noted earlier, the auditor general is a constitutional office-holder and not a public official. 84 providing assistance and information to parliamentarians to help ensure that all constitutional safeguards are fully understood is a potentially important role for csos: see the abuja guidelines on the relationship between parliaments, parliamentarians and commonwealth national human rights institutions (2004) <https://www.agora-parl. org/sites/default/files/guidelines_abujaworkshop.pdf> accessed 3 october 2018. 85 article 35 provides that ‘every citizen has the right of access to information held by the state’ and that ‘the state shall publish and publicise any important information affecting the nation’. 72 independence of the auditor general. this generous approach to standing should encourage other csos to make use of the courts to challenge any threats to the work of auditors general. part 6: removing the auditor general i) grounds for removal the grounds for removal enshrined in the constitutions are similar to those of a judge. for example the constitution of namibia provides: ‘the auditor general may be removed from office by reason of an ‘inability to discharge the functions of his office (whether arising from infirmity of mind or body) or for misconduct’.86 similarly, in south africa the auditor general may be removed from office only on the ground of misconduct, incapacity or incompetence.87 in kenya article 251(1) provides that the grounds for removal are a serious violation of the constitution or any other law; gross misconduct, whether in the performance of the member’s or office-holder’s functions or otherwise; physical or mental incapacity to perform the functions of office; incompetence; or bankruptcy. less satisfactory is the position in nigeria where the auditor general may be removed from office by the president on grounds of an ‘inability to discharge the functions of his office (whether arising from infirmity of mind or body or any other cause) or for misconduct’ (emphasis added).88 ii) procedure for removal a) commencing the removal process how the removal procedure is commenced requires careful scrutiny as it offers a mechanism to intimidate and/or undermine the auditor general. this is based on the fact that the constitutions typically provide that the president may suspend the auditor general from office after the start of the removal proceedings. in most of the constitutions, parliamentarians or a parliamentary committee may commence an investigation. for example, section 184(3) of the constitution of malawi provides that the ‘public appointments committee may at any time inquire as to the competence of the person so appointed to perform the duties of 86 article 127(4). 87 section 194(1). 88 section 87(1). the role, independence and accountability of the auditor general: a comparative constitutional analysis the denning law journal 73 that office and as to the financial probity of a person so appointed, so far as it is relevant to the duties of that office’. who else may request that the possible removal of the auditor general is rarely elaborated in the constitutions. the right of an individual to do so was brought into issue in the 2017 decision of the kenyan high court in republic v speaker of the national assembly & 4 others ex-parte edward r.o. ouko (the ouko case).89 here article 251(2) of the constitution of kenya specifically provided that ‘a person desiring the removal of [the auditor general] on any [relevant] ground may present a petition to the national assembly setting out the alleged facts constituting that ground’. the national assembly must then consider the petition and, if it is satisfied that it discloses a ground for removal, must send the petition to the president. the president may then suspend the auditor general pending the outcome of the complaint. the case raises several issues of general concern. first, the complaint was submitted to the national assembly by a petitioner, who was the legal representative of an undisclosed complainant who sought the removal of mr ouko. the prospect of a series of such petitions being presented to the national assembly by any number of anonymous individuals is clearly of practical concern, particularly when dealing with them is liable to distract the auditor general and can be used by political enemies or disgruntled individuals to undermine the work of the office-holder. in the case itself, the anonymous complainant had made a series of complaints concerning mr ouko, some of which fell within the scope of article 251. however, these had already been referred to the ethics and anti-corruption commission and the director of public prosecutions whose investigations had vindicated mr ouko. in essence the petitioner was ‘forum shopping’. second, the procedure adopted by parliament was questionable. here the petitioner was permitted to give unsworn testimony before a parliamentary committee and this was heard without the applicant, mr ouko, being given any prior notice of the hearing nor afforded a chance to cross-examine the petitioner. further the applicant had not been informed of the precise nature of the allegations against him nor given sufficient time to address them. whilst not disputing the right of parliament to deal with the matter and to regulate its own procedures, the applicant argued that there was procedural unfairness in the manner in which the parliamentary committee approached the matter. odunga j upheld this argument pointing out that any such action must be constitutional and lawful. article 47 of the constitution of kenya specifically provided: ‘every person has the right to administrative action …’. he therefore held, correctly it is argued, that the article required a court to look both at the merits and legality of an administrative decision 89 ouko [2017] eklr. 74 and at the process and procedure adopted.90 further he said even at common law fairness in administrative action was paramount.91 this point raises a broader question concerning the separation of powers and the right of the courts to question parliamentary proceedings. the commonwealth (latimer house) principles emphasise: ‘parliamentarians must be able to carry out their legislative and constitutional functions in accordance with the constitution, free from unlawful interference’.92 however, as odunga j pointed out, the constitution is supreme and thus parliament ‘cannot enjoy privileges, immunities and powers which are inconsistent with the fundamental rights guaranteed in the constitution … parliamentary privilege does not extend to violation of the constitution [and where parliament does so] the court’s jurisdiction would not be defeated…’.93 in doing so he ‘associated himself’ with a series of decisions from other commonwealth jurisdictions94 and affirmed the words of lord denning in gouriet v union of post workers noted earlier, ‘be you ever so high, the law is above you’. odunga j also addressed an argument by the respondents that the parliamentary committee was exercising an administrative function and not a quasi-judicial function. in his view, the issue for the court was not whether the action was described as ‘quasi-judicial’ or ‘administrative’ but rather whether parliament was ‘undertaking an act that affects the legal rights and interests of the applicant to whom the action related’.95 this was clearly the case here. as a result, odunga j issued a declaration that the proceedings conducted by the appropriate parliamentary committee failed to meet the threshold of fair administrative action and ordered that the committee conduct its proceedings in strict compliance with and adherence to article 47 of the constitution of kenya. 90 para 118. in doing so, he referred with approval to the decision of the constitutional court of south africa in republic of south africa v south african rugby football union [2000] (1) sa 1 [135]–[136] which applied section 33 of the constitution of south africa which was in similar terms to the kenyan provision. 91 ibid [79]. 92 para iii(a). 93 ibid [81]. 94 for example biti v minister of justice, legal and parliamentary affairs [2002] zwsc 10 (supreme court of zimbabwe); doctors for life v speaker of the national assembly [2006] (6) sa 416 (constitutional court of south africa). 95 ibid [112]. in doing so, the judge adopted the words of lord denning in breen v amalgamated engineering union [1971] 2 qb 175 [190] who emphasised that whether functions are described as judicial or quasi-judicial or as administrative the body still must act fairly. the role, independence and accountability of the auditor general: a comparative constitutional analysis the denning law journal 75 b) the removal process given the status of the auditor general and the need to avoid the politicisation of the matter, there is a strong case for the decision regarding removal being a matter for the judiciary. this is the position in kenya where the president must appoint a judicial tribunal of enquiry which is to investigate the matter ‘expeditiously’ and must to make a binding recommendation upon which the president must act within thirty days.96 in ghana, the matter is entirely removed from the legislature with the procedure for removal of the auditor general being the same as that of a senior judge.97 where the removal process involves the legislature, the approach in south africa provides an important model. this is commenced by a finding by a committee of the national assembly of misconduct, incapacity or incompetence on the part of the auditor general. if the national assembly then adopts by a resolution supported by at least two-thirds of its membership calling for the removal from office of the auditor general, the president must remove the auditor general from office. interestingly, the drafters of the 1996 constitution provided that the removal process required a simple majority of national assembly members only. however the constitutional court did not consider that this adequately safeguarded that office-holder’s independence and impartiality and the constitutional provision was accordingly amended to require a two-thirds majority.98 similarly, in nigeria, the auditor general may be removed from office solely by the president ‘acting on an address supported by two-thirds majority of the senate’. the requirement for a super-majority provides a welcome additional safeguard. however, the concern remains that the weakness of many legislatures and the dominance of the ruling party in many jurisdictions may inevitably result in the politicisation of the removal decision. 96 the tribunal must consist of a person who holds or has held office as a judge of a superior court, at least two persons who are qualified to be appointed as high court judges; and one other member who is qualified to assess the facts in respect of the particular ground for removal: see article 251(5). it is required to investigate the matter expeditiously, report on the facts and make a binding recommendation to the president, who must act in accordance with the recommendation within thirty days. 97 article 187(13). 98 see ex parte chairperson of the constitutional assembly: in re certification of the constitution of the republic of south africa (n 28). 76 part 7: conclusion the power of peps to ‘control the controls’ facilitates corrupt practices and misuse of public office. the challenge is to prevent the abuse of this power and to protect the good governance values of integrity, transparency and accountability enshrined in constitutions. this article has argued that as the ‘ally of the people’, the auditor general can, and must, play a leading role through ensuring fiscal integrity. this has the dual purpose of both encouraging ‘ethical behaviour [by peps] by making unethical behaviour hard to accomplish and easy to detect’ and helping to bring to light any abuse of power.99 as klug neatly puts it, such an independent constitutional institution has ‘a distinct role in ensuring that the promises of human rights and good governance [enshrined in the constitution] reach down into the daily administration of the country…’.100 all the constitutions noted in this study make provision for the office of the auditor general and, as the examples from zambia and malawi illustrate, an effective auditor general poses a threat to corrupt peps by ‘[flinging open] the gates to what was meant to be a clandestine and non-detectable criminal syndicate of fraudsters and money launderers’.101 yet the cases of chiluba and abacha, for example, highlight the pressure that peps can exert on office-holders. thus the real test is the extent to which, in practice, auditors general enjoy the necessary individual and institutional independence and security of tenure to enable them to carry out their constitutional mandate effectively. this includes enjoying access to all public expenditure, including that relating to ‘national security’. however, this article has demonstrated that several of the constitutions do not adequately protect the office and the office-holder and that there is a need to strengthen key provisions. fundamentally there is a need to review the relationship between the auditor general and the legislature. retaining the close working relationship between the two as regards fiscal matters remains essential. this includes the supportive role of the legislature through the appropriate scrutiny and follow-up on annual audit reports. there is also an accountability role for the legislature which must also follow up any failure by the auditor general to submit such reports. however, given the weakness of many legislatures, their role in the appointment and removal process of the auditor general raises serious concerns. in most of the jurisdictions under discussion, the present constitutional arrangements arguably do not 99 n 17. 100 heinz klug, ‘accountability and the role of independent constitutional institutions in south africa’s post-apartheid constitutions’ (2015-2016) 60 ny law school law review 153, 156. 101 see republic v lutepo (n 25) (kapindu j). the role, independence and accountability of the auditor general: a comparative constitutional analysis the denning law journal 77 adequately protect the independence of the office and office-holder in practice. instead it is argued that the position of the auditor general should be equated to that of a senior judge including enjoying the same terms and conditions as regards security of tenure and removal. as an ‘ally of the people’ the auditor general requires support from civil society organisations. the article has highlighted a range of opportunities for doing so, such as publicising and monitoring the work of the office. this includes enjoying public access to the reports of the auditor general. challenging attempts to undermine its operation is another key measure including, where necessary, resort to the courts. the ti case neatly demonstrates how effective such action can be and should encourage csos in other jurisdictions to challenge any attempt to restrict the work of the auditor general. to adapt lord denning’s words ‘be you ever so high, the constitution is above you’. the auditor general as a constitutional office-holder has the power to control peps and thus uphold the good governance values enshrined in the constitution. it is hoped that the views expressed in this article will contribute to making this role more effective in practice and truly make the auditor general the ‘ally of the people’. human rights, 'arranged' marriages and nullity law: when do 'force', parental 138 denning law journal 2016 vol 28 special issue pp 138-165 african ‘social ordering’ grundnorms and the development of an african lex petrolea? hephzibah egede abstract this article interrogates the constitutional relevance of african social ordering rules in petroleum governance in sub-saharan african petroleum producing states. at the apex of the hierarchized african legal system is the national constitution which contains the basic norm or grundnorm derived from western received law. yet some african scholars have described african social ordering norms as grundnorms. this goes contrary to the conventional positivist position that “a legal system cannot be founded on two conflicting grundnorms.”1 this article will consider whether african social ordering norms have attained the level of a grundnorm as expounded in kelsen’s pure theory. utilising the ekeh’s “two publics” model, it investigates how the basic norm for african social ordering grundnorms is presupposed. the article considers whether there is a conflict between the domanial system of state ownership as approved by african national constitutions and indigenous african social ordering norms premised on communitarianism. the article presents for analysis the recent study undertaken by african petroleum producers association (appa). this study considers whether it is possible to standardise the rules of petroleum contractual governance in africa. this has led to some discussion on whether the standardisation of these rules could lead to the development of an african lex petrolea. this article explores the role that african social ordering norms can play in the development of a continent-wide lex petrolea.  senior lecturer in law, law school, university of buckingham, co-director, centre for extractive energy studies (ubcees). e-mail: hephzibah.egede@buckingham.ac.uk 1 werner menski, comparative law in a global context: the legal systems of asia and africa (cambridge university press, 2006) 158. the denning law journal 139 keywords: african social ordering norms; conflicting grundnorms; ubuntu; african communitarianism; two publics; lex petrolea; domanial ownership; petroleum governance. part one: introduction the grundnorm is described as the fundamental or “foundation” rule that underpins a legal system.2 in many post-colonial african states, the grundnorm is presented in the national constitution, the supreme law of an african hierarchical legal system.3 the typical hierarchical african legal system is pluralist in nature. it consists of western received law which operate side by side with non-western norms and rules. these nonwestern norms and rules are described by chigara4 as african social ordering grundnorms. the status of these indigenous social ordering “grundnorms” in the hierarchized legal systems of post-colonial african states is in debate. limited evidence5 is provided on how these rules have attained the presupposed status of a grundnorm as required in kelsen’s pure theory. in contrast, it is presupposed that the national constitution of an african democratic state embodies the grundnorm or foundation rule. 6 a conflict of norms will arise if it is agreed that african social ordering norms have attained the status of a grundnorm. this contradicts the positivist approach which holds that “a system founded on the grundnorm cannot allow for two equally valid norms to contradict each other as this would threaten the unity of the system.”7 2 hans kelsen, pure theory of law (translation from the second german edition by max knight, university of california press, 1967. x) reprinted 2005 by the lawbook exchange, ltd; trevor hartley, “national law, international law and eu lawhow do they relate?” in patrick capps, malcolm evans, (eds) asserting jurisdiction: international and european legal perspectives (hart publishing, 2003) 67. 3 richard oppong, legal aspects of economic integration in africa (cambridge university press, 2011) 208. 4 ben chigara, “the humwe principle: a social-ordering grundnorm for zimbabwe and africa” in robert home (ed) essays in african land law (pretoria university law press, 2011) 113. the reference to african “social ordering grundnorms” is based on chigara's work. 5 ibid. see 113, 120 where he describes humwe as a new social ordering grundnorm. 6 oppong (n 3) 208. 7 panos merkouris, article 31(3)(c) vclt and the principle of systemic integration (brill, 2015) 167. african ‘social ordering’ grundnorms 140 following kelsen’s theory of pure law, the validity of the basic norm is premised on a presupposition exercise.8 this exercise is linked to the concept of efficacy where the grundnorm is presupposed as the highest law because it is followed and obeyed. this leads to the question on why people follow and obey the basic law and treat it as the highest norm? the positivist school will point to sovereign power or to the will of the people.9 the national constitution is established by the will of the people as the supreme law of the land.10 there are drawbacks to this position. this is because of the existence of “two publics” in post-colonial african states. ekeh presents a seminal discourse11 on these two key publics. these two publics are the “civic public” and the “primordial public.”12 the civic public consists of the westphalian state and its structures while the primordial public consists of families, communities and ethnic groupings. it is claimed that africans pay more allegiance to the ‘primordial public’ than to the “civic public.”13 while there has been some criticism14 on ekeh’s “two publics” theory, it does provide some context on why some local communities within an african sovereign state find it difficult to accept the national constitution as the foundational norm on community matters. utilising ekeh’s two publics theory, this article will explore whether recurring resource conflicts in some african oil producing states is due to the insistence of the amoral african state that its national constitution should be regarded as the fundamental norm for petroleum governance. it considers whether oil resource conflicts can be resolved by affording greater legitimacy to indigenous social ordering norms that local communities can identify with. to address these issues, the article is organised in the following manner. part one of this article provides the introductory context. part two focuses on the legal governance of petroleum resources in subsaharan african states. part three of the article considers the construction and 8 uta bindreiter, why grundnorm?: a treatise on the implications of kelsen's doctrine (kluwer international, 2002) 19. 9 ibid. 10 donald dahlin, we the people: a brief introduction to the constitution and its interpretation (springer, 2012) chapter three. 11 peter ekeh, “colonialism and the two publics in africa: a theoretical statement” (1975) 17(1) comparative studies in society and history 91-112. 12 ibid, 92. 13 ibid, 107-108. 14 brown onouha, “publishing postcolonial africa: nigeria and ekeh's two publics a generation after” (2014) 40(2) social dynamics: a journal of african studies 322-337. the denning law journal 141 development of the african social ordering grundnorm. part four considers the merits and demerits of developing an african lex petrolea based on indigenous social ordering norms. part five provides the concluding remarks of the article. part two: legal governance of petroleum resources in sub-saharan africa petroleum ownership structures legal governance of petroleum resources in sub-saharan africa has its roots in the continent’s colonial legacy. the constitutions of most petroleum producing african states vests ownership of petroleum resources in situ with the state based on the domanial system of ownership. petroleum ownership structures are generally based on regalian and domanial systems. the roman based regalian system entitles the sovereign to exercise dominium directum (dominion over the soil) and to assume ownership over minerals extracted from the soil. the regalian system also recognises a separate subsidiary right known as dominium utile (the right to profit and use of soil).15 hepburn16 claims that the regalian system of dominium directum is integrated into the domanial system. under this system, ownership of petroleum resources in the soil and within the sub-soil is vested with the sovereign state. an examination of the legal systems of post-colonial african states establishes that many of these states operate the domanial system of petroleum ownership. in the domanial system of ownership structure, petroleum resources in situ is exclusively vested in the state. the following table provides a case study of the sub-saharan african member countries of the african petroleum producers association (appa). this table illustrates that most appa countries practice the domanial legal systems of ownership within their constitutional and state law framework.17 the north african appa countries have been excluded from this table on the premise that the focus of this article is legal governance in sub-saharan african oil producing countries. 15samantha hepburn, mining and energy law (cambridge university press, 2015) 11. 16 ibid. 17 the appa is an inter-governmental and collaborative association of african petroleum producing states (aapa). see www.aapa.int/en/pres/. african ‘social ordering’ grundnorms 142 legal ownership of petroleum resources in appa sub-saharan african countries african oil producing states region legal framework on ownership ownership structure constitutional and statutory provisions angola southern africa constitution of angola 2010. domanial the preamble of the 2010 constitution vests ownership with the state. equatorial guinea west africa decree law no. 8/2006 of november 2006 (hydrocarbons law) and petroleum regulation of the republic of equatorial guinea num. 4/2013 (petroleum regulation). domanial the hydrocarbons law and petroleum regulation vests ownership with the state. ghana west africa constitution of the fourth republic of ghana (amendment) act, 1996 (act 527). domanial article 257(6) of the 1996 constitution states that minerals in their natural state are the property of the state. nigeria west africa constitution of nigeria 1999 and the nigerian petroleum act 1969. domanial s.44 (3) of the constitution and the nigerian petroleum act 1969 vests oil and gas resources in the federal government of nigeria. benin west africa petroleum code of 2006 18. domanial article 3 of the code separates the deposits of liquid and gaseous hydrocarbons from the ownership of land. it regards these deposits as public property that belongs to the nation. cameroon west africa constitution of the republic of cameroon 1996 as amended by law no 2008/001 and law no. 99/013 of 22 december 1999, instituting the petroleum code (the petroleum code). domanial article 21 of the constitution endorses charter rights that vests all peoples with rights to freely dispose of their wealth and resources. the constitution is silent on who owns petroleum resources. article 3 of the petroleum code 1999 provides for state ownership of all deposits or natural accumulations of hydrocarbons and treats these deposits the denning law journal 143 african oil producing states region legal framework on ownership ownership structure constitutional and statutory provisions as the exclusive property of the cameroonian state. chad west africa constitution of chad 1996 with amendments through 2005. law no. 006/pr/2007 dated 20 april 2007 on hydrocarbons, as amended and supplemented by ordinance no. 001/ pr/2010 dated september 30, 2010 and decree no. 796/pr/pm/mpe/2010 dated september 30, 2010 implementing the hydrocarbons law. domanial article 57 of the constitution vests the state with permanent sovereignty over all the national natural resources for the wellbeing of the national community. article 2.1 of the hydrocarbon laws vests hydrocarbons in their natural state to the republic of chad. democratic republic of congo central africa constitution of congo the democratic republic of the 2005 with amendments up to 2011. the petroleum law (law no. 15/012 dated 1 august 2015). domanial article 9 of the constitution requires that the state should have permanent sovereignty over natural resources. republic of congo (roc) central africa constitution of republic of congo 2001. law no 24-94 dated 23 august 1994 (petroleum code), decree no 2008-15 dated 11 february 2008 (attribution code). domanial the constitution is silent on ownership. the state codes vest ownership of hydrocarbons in the congolese soil and sub-soil. côte d'ivoire west africa constitution of côte d'ivoire 2000. the petroleum code of côte d'ivoire, instituted by law n° 96-669 of august 29, 1996. ordinance n° 2012-369 of april 18, 2012, amending law n° 96-669 of august 29, 1996 establishing the petroleum code. decree n° 96-733 of september 19, 1996, laying down general rules for the application of the law on the petroleum code. domanial the constitution is silent on ownership of petroleum resources. mineral rights in natural hydrocarbons deposits and accumulations are vested in the state by the petroleum code. gabon central africa constitution of gabon 1991 with amendments through 1997. hydrocarbons law (law no. domanial the gabon constitution does not expressly discuss ownership of petroleum resources. african ‘social ordering’ grundnorms 144 african oil producing states region legal framework on ownership ownership structure constitutional and statutory provisions 11/2014 of august 28 2014). the hydrocarbons law vests ownership of petroleum resources with the state. south africa southern africa constitution of the republic of south african1996. mineral and petroleum resources development act 28 of 2002 (“mprda). domanial section 24 of the constitution requires that natural resources should be developed in an ecologically sustainable manner. the mprda vests ownership of mineral and petroleum resources in the nation of south africa and the minister of natural resources. mauritania west africa constitution of mauritania 1991 with amendments through 2012. act no. 2008-011 on the mining code (27 april 2008). ordinance no. 2002-005 regulating the activities of the downstream oil sector (28 march 2002). domanial the mauritanian constitution does not expressly set out provisions on ownership of natural resources. the mining code states that deposits are separate from land ownership. it vest ownership of these deposits in the state. niger west africa constitution of niger 2010. petroleum code act no 200701. domanial article 149 of the constitution provides state sovereignty over natural resources and the sub-soil. source: author's research the table above demonstrates that the domanial system of state ownership derives its legitimacy from the constitutional framework and national legislation of a petroleum producing state.18 under this framework, the african state is the owner of petroleum resources in situ and it collaborates with multinational companies (mncs) to exploit its resources. the collaborative effort between the state and the mnc is necessary. this is because most african states lack the necessary risk capital and required technical know-how to exploit their oil and gas resources. under the domanial system, the state will grant mncs the right to exploit petroleum resources through a host state agreement (hsa). 18 hepburn (n 15) 11-12. the denning law journal 145 there are different models of the hsas, but the most commonly utilised in the african continent are the production sharing agreements (psas) and modern oil concessions (ocs).19 psas and service contracts (scs) are well suited for domanial systems of petroleum governance. this is because the mnc acts as the contractor for the state. unlike the oc where the mnc can claim ownership of produced oil at the wellhead, the mnc has no legal title to produced oil under the psa and sc. the psa does however permit the mnc to participate with a state owned company (soc) or national oil company (noc) in a stream of oil revenue known as profit oil. the state constitution and petroleum legislation regulate these contracts alongside with rules of international investment law. this confirms the pluralist nature of petroleum governance in african oil producing states. it is instructive that within this pluralist system, there appears to be no place for african social ordering rules. the exclusion of indigenous rules from the pluralist petroleum legal system is a matter of concern considering that petroleum resources is undertaken in indigenous oil producing communities. ekeh’s “two publics” theory shows that these communities adhere more to the dictates of the customary rules developed by the “primordial public,” than to state law which is developed by the “civic public”.20 yet hsa contracts are executed between amoral civic state and mncs without the direct involvement of local communities.21 the bilateral nature of these contracts is premised on state sovereignty over petroleum resources. equally, mncs provide the necessary risk capital to secure the contractual bargain of these contracts. in contrast, the local oil producing communities which bear the brunt of oil and gas exploitation are not contractual parties to the hsas. in a domanial system, the control and management of natural resources is constitutionally vested in the national state. accordingly, local communities are not considered as having the necessary constitutional standing to participate in hsas. this is an unsatisfactory state of affairs and is a contributory factor for the resource conflicts that take place within these communities.22 19 emmanuel laryea, “contractual arrangements for resource investment” in. francis botchway (ed) natural resource investment and african development (edward elgar, 2011) 108-116. 20 ekeh (n 11) 198. 21 hephzibah egede and edwin egede, “the force of the community in the niger delta of nigeria: propositions for new oil and gas legal and contractual arrangements” (2016) 25 tulane journal of international and comparative law 1-37 (forthcoming). this article is a follow-up to this work. 22 abiodun alao, natural resources and conflicts in africa: the tragedy of endowment (university of rochester press, 2007) 170-198. african ‘social ordering’ grundnorms 146 oil producing communities and the right to self-determination in contrast, under international law, local communities can exercise qualified sovereignty and self-determination over their natural resources. these rights are set out in international instruments such as the united nations general assembly resolution on permanent sovereignty over natural resources23 which embodies the right of sovereign states and their peoples to exercise sovereignty over their resources.24 the 2007 united nations declaration on the rights of indigenous peoples provides indigenous peoples with the rights to self-determination and participation in the decision-making process over their natural resources. the 2007 declaration does not vest indigenous peoples: “expressis verbis with permanent sovereignty over their natural wealth and resources or entails exclusive rights for indigenous peoples over the natural resources within their territories”.25 it does however provide these communities with participatory or consultative rights in the decision-making process over the management and control over natural resources. article 32 of the 2007 declaration requires states to undertake bona-fide consultations and cooperation initiatives with their indigenous communities before undertaking or engaging with projects that may impact on their lands and resources. article 46(1) stipulates that the conferment of the right to selfdetermination under this declaration should not be construed as: “authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states”. this confirms that the right to self-determination as provided in article 4 is confined to the participatory rights set out in articles 25-28 of the declaration. it does not entitle communities to secede or assert political independence outside the sovereign states in which they are 23 unga resolution 1803 (xvii) of 14 december 1962. 24 ibid para 1. 25 nicolaas schrijver, “self-determination of peoples and sovereignty over natural wealth and resources” in realising the right of development: essays in commemoration of 25 years of the united nations declaration on the right to development (united nations, 2013) 99. the denning law journal 147 situated. article 21(1) of the african charter on human and peoples’ rights26 also confirms the right of african peoples to: “... freely dispose of their wealth and natural resources. this right shall be exercised in the exclusive interest of the people. in no case shall a people be deprived of it”. the right of african peoples to exercise self determination over their wealth and resources has been deliberated upon by the african commission on human and peoples' rights. in the decided cases of social and economic rights action center (serac) and the center for economic and social rights (cesr) v. nigeria27 and endorois v. kenya,28 the commission affirmed the obligation of states to respect and protect the rights granted to african peoples under the charter. in the endorois case, the commission specifically affirmed that kenya should have obtained the endorois community’s ‘free, prior, and informed consent, according to their customs and traditions’29 before undertaking development projects within their territory. this decision highlights the role that african “social ordering” rules can play in natural resource governance. it further underscores ekeh’s claims that many africans simultaneously live and function within the “primordial” and “civic publics”. this is why it is important to consider the relevance of african ‘social ordering rules’ in petroleum governance. part three: the construction of a social ordering grundnorm in sub-saharan africa the mixed african legal system of governance in norm formulation the use of received western law in the legal systems of many african states is a legacy of colonialism. menski30 explains that received rules are derived from the legal systems of other countries. he argues that the involuntary imposition of these rules has created a cultural conflict between western received law and the indigenous rules of post-colonial states.31 as previously stated, many african states have adopted the 26adopted in nairobi june 27 1981. entered into force october 21 1986. 27 communication no. 155/96, 2001. 28 communication no. 276/2003. 29ibid, para 291 (emphasis added). 30 menski (n 1) 126. 31 ibid. african ‘social ordering’ grundnorms 148 system known as legal pluralism to resolve the conflict between western received law and indigenous rules. the seminal work of griffiths32 establishes that there are weak and strong constructions of the concept of legal pluralism. the weak construction of legal pluralism is a system where the state sanctions or permits the operation of multiple legal systems within its jurisdictional sphere. the difficulty with the weak construction of legal pluralism is that the civic state has the final say on the rules that can apply in its legal system. griffiths views the weak construction of legal pluralism as a form of legal centralism. this is because it is reliant on the concept of a hierarchy of rules where state law has pre-eminence. conversely, the strong construction of legal pluralism discredits the purist positivist construction of law which focuses on a “single, unified and exclusive hierarchical normative ordering depending from the power of the state”.33 griffith argues that the strong construction of legal pluralism envisions a system where multiple bodies of rules can operate within a decentralised system. it is debatable if african states actually practise the strong construction of legal pluralism. it appears that the mixed african legal systems of most african states is premised on a hierarchy of rules where the state constitution is situated at the apex of the system. this hierarchised system prioritises western received law above customary law and creates the cultural conflict described in menski’s work.34 arguably, the modernisation theory has played a role in the prioritisation of western received law above african customary law. this is because it requires that africa follow in the “developmental footsteps of europe (largely the former colonizer of africa)”.35 notwithstanding the role that the modernisation theory has played in the development of the african civic public and in its formation of legal rules, the endorois decision underscores the continuing importance of african customary law. within this customary framework, chigara36 argues that there are fundamental social ordering rules or norms which can be regarded as african grundnorms. this is because the primordial public pre-supposes them to be so. he further claims that these ‘ancient social ordering’ rules predate colonialism and were presupposed by africans as the foundational rules 32 john griffiths, “what is legal pluralism?” (1986) 24 journal of legal pluralism and unofficial law 5. 33 ibid. 34 menski (n 1) 126. 35 jephias matunhu, “a critique of modernisation and dependency theories in africa: critical assessment” (2011) 3(5) journal of history and culture 65. 36 chigara (n 4) 113. the denning law journal 149 that governed pre-colonial african communities. he however does not provide definitive evidence on how these specific norms attained the revered status of “grundnorm” except to point to their historical relevance and applicability continent-wide. chigara presents humwe (a shona concept) as an example of an indigenous social ordering grundnorm. the term is defined as “in this together” or “us all”. it can be described as african communitarianism, interdependence and humanness. he further argues that there are similar african norms and points to the popular zulu concept ‘umuntu ngumuntu ngabantu’ (abridged as ubuntupeople are people through people) and to umoja, a swahili term for communal unity. his research also identifies similar norms in other parts of africa, including west africa.37 ramose38 in his leading african philosophical text, argues that indigenous norms such as ubuntu are important because they stem from “the wellspring flowing from african ontology and epistemology”.39 he further argues that they apply continent wide because of the “philosophical affinity and kinship between the indigenous people of africa”.40 it is however unclear if this “affinity and kinship” of african peoples is the determining consideration for the claim that these rules have attained the status of grundnorms. there is another school of thought that rejects the continent wide application of norms like ubuntu or humwe. vans binsbergen for example expresses some scepticism on the continent-wide application of concepts like ubuntu. he argues that there is insufficient evidence to substantiate this claim.41 similarly, simiyu42 argues that african communitarianism is a utopian ideal in light of the historical realities of many post-colonial countries that make up the sub-continent. this position may hold true if concepts like ubuntu are simply confined to the 37 ibid, 117-18. 38 mogobe ramose, african philosophy through ubuntu (mond books, 1999) 49. 39 ibid. 40 ibid. 41 wim van binsbergen, intercultural encounters: african and anthropological lessons towards a philosophy of interculturality (munster: lit verlag 2003) chapter 14. 42 vincent simiyu, “the democratic myth in the african traditional societies” in walter oyugi and afrifra gitonga (eds), democratic theory and practice in africa (east african educational publishers, 1987) 49-51. african ‘social ordering’ grundnorms 150 notion of african communitarianism. this is not the case since these terms also connote “personhood” and “humanness”.43 state recognition of african social ordering grundnorms notwithstanding the ongoing debate on the continent-wide use of indigenous social ordering norms, some african states have attempted to incorporate these rules within their constitutional framework. south africa is a pertinent example of an appa state that regards ubuntu as a fundamental social ordering norm. constitutional recognition of this rule was provided within the transitional constitution of south africa 1993. it is instructive that the final 1996 constitution did not follow suit.44 but the importance of this norm in the south african legal framework has been recognised by the south african courts. in the landmark south african constitutional court case of s v. makwanyane,45 the south african constitutional court approved the constitutional importance of the indigenous ubuntu norm. this case considered section 277 of the criminal procedure act no. 51 of 1977 which provided for the use of the death penalty. the court denounced the use of death penalty in the south african criminal law system. in framing its decision, the court invoked the ontological concept of ubuntu with its emphasis on the value of human life and dignity. it held that the death penalty could be characterised as “inhumane punishment” since it deprived the convicted person of human dignity. the court further held that the continuing use of the death penalty was contrary to the constitutional focus on national unity and reconciliation which in a large part is premised on the norm of ubuntu. the court held: “the notion of ubuntu expressly provided for in the epilogue of the constitution, the underlying idea and its accompanying values are also expressed in the preamble. these values underlie, first and foremost, the whole idea of adopting a bill of fundamental rights and freedoms in a new legal order. they are central to the coherence of all the rights entrenched in chapter 3 where the chikosa silungwe, “on african legal theory: a possibility, an impossibility or mere conundrum” in oche onazi (ed) african legal theory and constitutional problems: critical essays (springer, 2014) 27. 44 chuma himonga, max taylor, ann pope, “reflections on judicial views of ubuntu” (2013) 16(5) potchefstroom electronic law journal 373. 45 [1995] zacc 3. the denning law journal 151 right to life and the right to respect for and protection of human dignity are embodied in sections 9 and 10 respectively”.46 there are cases47 within the south african legal framework which provide similar recognition of the use of ubuntu in the south african legal system. it is unclear if there is similar state practice in other african states. this does not mean that customary rules do not play a role within the legal systems of these states. they however may not have the same relevance as western received law especially with regard to commercial matters. the article turns to the state practice of nigeria, another appa state example. nigeria is a major oil producing state in the african subcontinent. unlike the south african experience, the nigerian legal system has not singled out a specific indigenous rule or norm that could serve as a guiding rule in the development of law. in allowing for the establishment of customary and sharia courts of appeal, the 1999 nigerian constitution48 does recognise the role that customary law and islamic law play in the nigerian mixed legal system. comparative perspectives can be provided on why it may pose a challenge for nigeria to single out one particular indigenous social norm to guide its legal system. first the nigerian cultural milieu is different from south africa. unlike south africa, nigeria communal life is not only governed by indigenous african rules but also by shariah law. second, nigerian is much more ethnically diverse than south africa and its customary law practices are not unified. the localisation of nigerian customary law is confirmed in section 258(1) of the nigerian evidence act 2011.49 this section states that “a rule which in a particular district, has from long usage, obtained the force of law”. by confining the rule to a particular district, the nigerian evidence act recognises how ethnically diverse the nigerian state is. it will therefore be difficult to single out a particular customary rule of law as a basic grundnorm, except where evidence can be shown that it transcends all districts in nigeria. to establish this, native chiefs or other person who are recognised as having special knowledge of customary law will have to provide evidence that 46 ibid, para 307. 47 see for example mayelane v ngwenyama 2013 (4) sa 415 (cc), mec for education: kwazulu-natal v pillay 2008 (1) sa 474, port elizabeth municipality v various occupiers 2005 (1) sa 217 (cc). 48 sections 260 -268 of the 1999 constitution. 49 in force june 2011. african ‘social ordering’ grundnorms 152 validates the custom.50 some have pointed to certain customary law rules in nigeria that have “near universality of application”.51 one such customary rule can be found in customary intestate succession where it is argued that widows have very limited capacity to inherit capacity. the localisation of customary law in nigerian law may explain why it has limited or no application in the regulation of the nigerian oil and gas sector. this creates a conundrum in light of ekeh’s “two publics” theory. if as ekeh argues that the “primordial public” is more legitimised than the “civic public” the nigerian legal framework may need to lend itself to the application of indigenous social grundnorms in the governance and regulation the oil and gas sector. this is necessary as oil producing communities bear the brunt of oil and gas exploitation that is undertaken in their territories. a key african “social ordering” rule that is relevant to petroleum governance is communal ownership of land (and its resources). african ownership of land and its resources: public or communal ownership ubuntu, humwe and similar social ordering rules focus on interdependence, communality, fairness and humanness. these rules recognise the concept of communal ownership in land.52 following colonialization of sub-saharan africa, attempts were made to replace the communal land ownership with the native land tenure system. this system disallowed africans from purchasing property outside so called native land. in the southern african region, the native land tenure system was strictly enforced during the apartheid era and led to the dispossession of indigenous property rights in land.53 the native land tenure system resulted in the subjugation of customary rights in land and led to the introduction of the domanial system where rights in land were transferred 50 sections 68, 70 and 73 of the 2011 evidence act; christine ohuruogu, okechukwu umahi, nigerian legal methods (cambridge scholars publishing, 2013) 27. 51 charles iruonagbe, land ownership patterns and the economic life of women: a study of ozalla communnity, edo state, nigeria (vdm, verlag 2009) 1. 52 oshisanya lai oshitokunbo, an almanac of contemporary judicial restatements (civil law) 409. 53 robert hone, “the colonial legacy in land rights” in ben chigara (ed) south african development community land issues: towards a new sustainable land relations policy (routledge, 2012) 7-11. hone refers to the 1913 natives land act (also called the black land act) which prohibited the black population from acquiring rights outside “designated native land reserves.” the denning law journal 153 to the colonial state.54 the native land tenure system in a warped way preserved communal land, but at the same time denied indigenous communities the right to manage and control their lands and resources. this was done through the concept of trusteeship where the colonial state held customary land in trust for the indigenous population.55 independent african states have repealed native land tenure legislation, but some african states, including nigeria have maintained the trusteeship concept of land. in nigeria, during the tenure of military governance, radical changes were made to the land tenure system through the enactment of the land use act (lua) 1978.56 the lua vests all land in the states of the federation of nigeria to their respective state governors. these governors hold land in trust for the use and benefit of all nigerians. unlike the native land tenure system, the lua confers certain property rights to individual, families and communities. the rights are described as a statutory right of occupancy and the customary rights of occupancy respectively.57 the effect of the lua is to extinguish the pre-existing rights in land and replace them with limited rights similar to a leasehold.58 the trusteeship system of land set out in section 1 raises interesting issues. this is because “at the core of a trust concept is a duty of confidence imposed upon a trustee.”59 further, as stated by lord evershed mr, “for a trust to be effective, it must have ascertained or ascertainable beneficiaries.”60 section 1 of the lua identifies the ascertained beneficiaries of its statutory trusteeship system. these beneficiaries are “all nigerian citizens.” the focus on citizenship (which is one of the key features of the westphalian state system) and not on ethnic groups or indigenous peoples is connected with the public interest concern of fostering social cohesion 54 see for example sections 3 and 4 of the land and natives rights act which placed native land and rights under the control and subject to the disposition of the colonial governor. 55 hone (n 53) 12. 56 no. 6 of 1978. 57 sections 5(1) and 6(1) of the act. 58 see the case of abioye v. yakubu (1991) 5 nwlr (pt.190) 130 at 223 where the supreme court held that “rights of occupancy beat resemblance to leasehold interests. they can be assigned. they can be mortgaged and they can be underlet or sublet.” 59 underhill and hayton law of trusts and trustees (15th ed) 3. 60re endacott [1960] ch 232, 246. african ‘social ordering’ grundnorms 154 and national development.61 but as ekeh’s “two publics” model demonstrates, the “primordial public” is viewed by some africans as more important than the “civic public.”62 the extinction of pre-existing rights, and the replacement of such rights, with the limited rights’ regime set out in the act is seen as an attempt to prioritise the interests of the “civic public” above those of the “primordial public”. this creates a confidence gap which goes against the core of the trust concept which is predicated on the “confidence imposed upon a trustee”.63 this has led to the call, in certain quarters, for the repeal or fundamental restructuring of the lua.64 it will be a difficult task to repeal or change this law due to its constitutional importance. section 315 (5) of the 1999 constitution confers the act with the same status as the provisions of the constitution. it states that the act cannot “be altered or repealed except in accordance with the provisions of section 9 (2) of this constitution”.65 this means that the lua cannot be repealed or altered except the proposal for repeal or amendment is supported by no less than a two-third majority of the national assembly, and by no less than twothirds of all the states of nigeria. notwithstanding the substantive changes that have been made to the nigerian land tenure system by state law, local communities still perceive indigenous land tenure to be communal in nature. the reforms to communal ownership is not only confined to the land tenure, it also applies to ownership of mineral resources. the nigerian 1999 constitution as the supreme national law confers ownership of the ‘entire property in and control of all minerals, mineral oils and natural gas in under or upon land in nigeria or in, under or upon the territorial waters and the exclusive economic zone’66 to the government of the federation of nigeria. public ownership of petroleum resources is also re-affirmed in the petroleum act 1969 where the ‘entire ownership and control of all petroleum in, under or upon any lands to which this section applies shall be vested in the state.’67 61 namso udoekanem, david adoga, victor onwumere, “land ownership in nigeria: historical developments, current issues and future expectations” (2014) 4(21) journal of environment and earth science 182 at 186. 62 ekeh (n 11) 198. 63 underhill, hayton (n 59) 3. 64 udoekanem et al (n 61) 187. 65 s.315(5) and s.9 (2) of the 1999 constitution of the federal republic of nigeria. 66 section 44 (3) 1999 constitution of the federal republic of nigeria. 67 section 1(1) nigerian petroleum act 1969. the denning law journal 155 the constitution and the state legislation cited above establishes that natural resources, inclusive of petroleum is owned by the nigerian state and not by oil producing communities. this explains why social ordering indigenous rules play no apparent role in the regulation and management of the nigerian oil and gas sector. yet, the exploitation of these resources are undertaken in the communities that still subscribe to communal ownership of all resources. recurring resource conflicts: the tale of two publics this article has explained how ownership of communal land and natural resources has evolved from strict communal ownership to public ownership in some african countries. the land tenure system in nigeria, an appa state has been presented as a case study of the growing role of public ownership of land. the concluding section of this part considers whether the prioritisation of public ownership over communal ownership creates a conflict between the two publics discussed in ekeh’s work. oshio, in an early piece,68 on the lua argues that section 1 of the act has adopted some features of the indigenous system of communal ownership. he asserts that state governors hold a role similar to the community or family head. this is because they hold land in trust for the people they govern. he further points out that while there may be some basis for this comparison between public ownership and communal ownership, the lua has created areas of conflict between these two systems of land tenure governance. these areas of conflict arise in the management and control of the land, particularly with regard, to the allocation to members of the community and the partition of the sale of land. another key area of conflict which oshio’s article did not consider is the legitimisation process of the reforms initiated by the lua. as previously stated, the lua is a legacy of military governance which continues to enjoy constitutional protection under the nigerian 1999 constitution. applying ekeh’s “two publics’ model”,69 it could be argued that the continuing legitimisation of the lua by the 1999 constitution has been undertaken within the “civic public” and its institutions. it is therefore questionable whether the lua has received the same legitimisation process within the “primordial public” where oil and gas exploitation takes place. the same concern applies to public ownership of 68 p. ehi oshio, “the indigenous land tenure and nationalisation of land in nigeria” (1990) 10(1) boston college third world law journal 54. 69 ekeh (n 11). african ‘social ordering’ grundnorms 156 the petroleum resources where oil producing communities continue to clamour for resource control. this issue is important as it provides some explanation on why there are recurring resource conflicts in regions like the niger delta. this is because as ekeh asserts the primordial public which consists of family, clan and community is more legitimised by ordinary africans than the civic public which is premised on colonial structures and received law. yet, as the studies70 on nigeria’s constitutional history show, the framing and development of the different nigerian constitutions and other state laws has been undertaken by institutions within the “civic public” with little or no direct involvement by the “primordial public” in the decision making process. this may explain, why there is a sense of alienation within oil producing communities regarding the transfer of ownership of natural resources from communal ownership to public (state) ownership. it brings to light the “cultural conflict” highlighted in menski’s work71 between received law and indigenous law. yet the reality of the postcolonial african experience is that both sets of rules operate within most african pluralist systems. the real conflict stems from a hierarchized legal system which prioritises one set of rules above another instead of allowing for a co-existence of rules. this is why the interim 1993 constitution of south africa has been held up as a good example of how an indigenous social ordering can be effectively incorporated into the supreme law of the land. sadly, the 1996 final south african constitution did not follow suit and failed to expressly enshrine ubuntu in its text. there are concerns on why the 1996 constitution expressly failed to include ubuntu within its framework. mokgoro, a leading jurist and proponent of ubuntu however argues that the fundamental values of the current south african constitution coincide with “some of the key values of ubuntu(ism) e.g. human dignity itself, respect, inclusivity, compassion, concern for others, honesty and conformity.”72 while this position may hold true to some extent, the noninclusion of ubuntu in the 1996 constitution is a missed opportunity for the constitutional legitimisation of indigenous normative development. it also means that the development of natural resources may not need to be 70 toyin falola, matthew heaton, a history of nigeria (cambridge university press, 2008) 148; kalu ezera, constitutional developments in nigeria (cambridge university press). 71 menski (n 1). 72 j yvonne mokgoro, “ubuntu and the law of the south” (a paper delivered at the first colloquium constitution and law held at potchefstroom on 31 october 1997). the denning law journal 157 based on indigenous normative obligations. indeed all that the final 1996 constitution requires is that natural resources should be developed in an ecologically sustainable manner. while this is a positive step, the control and management of mineral and petroleum resources still rests with the state as custodian.73 this again confirms the domanial nature of petroleum ownership and the continuing role that the international rule of permanent sovereignty over natural resources74 plays in petroleum governance in sub-saharan africa. yet, the considered position is that the principle of permanent sovereignty over natural resources does not only apply only to states but to their peoples.75 it is therefore questionable why many african oil producing states in their municipal systems have adopted the narrow construction of this principle which confines sovereignty over natural resources to domanial state ownership. this appears to be an unsatisfactory state of affairs considering that some african states have failed to manage natural resources for national development and for “the well-being of the people of the state concerned.”76 how the “people of the state” are to be defined is quite crucial to a further understanding of the continuing tension between the primordial and civic publics. the failure of african governments to equitably manage resources for the well-being of their peoples has created the growing sense of the de-legitimisation of the “civic public” within local communities. this is why some in the niger delta oil producing region have argued that the nigerian state is an artificial creation which lacks true affinity with “nations” that exist within the nigerian nation state.77 the argument that nigeria is a nation state of nations alludes to a situation where communities identify more with the “primordial public” 73 iclg, south africa oil and gas regulation 2016, 3.1 available at http://www.iclg.co.uk/practice-areas/oil-and-gas-regulation/oil-and-gasregulation-2016/south-africa accessed october 25 2016. 74 richardo pereira, orla gough “permanent sovereignty over natural resources in the 21st century: natural resource governance and the right to selfdetermination of indigenous peoples under international law” (2013) 14 melbourne journal of international law 451, 463. 75 ibid, 453. 76 paragraph 1, general assembly resolution 1803 (xvii) of 14 december 1962, “permanent sovereignty over natural resources” available at http://www.ohchr.org/documents/professionalinterest/resources.pdf (accessed october 25 2016. 77 augustine ikien, d.s.p alamieyeseiga, steve azaiki, oil democracy, and the promise of true federalism in nigeria (university press of america, 2008) 20. african ‘social ordering’ grundnorms 158 than the “civic public” as discussed in ekeh’s work. robinson78 describes this as putting ethnic identity above national identity. further, in the illuminating work “oil, democracy and the promise of true federalism” the argument for focusing on ethnic identity above national identity is set out as follows: “it would be foolhardy for somebody from the niger delta to hope that a hausa-fulani, or yoruba or igbo person at the helm of affairs at the federal level to take the issue of the latter’s development as serious developmental matter. what is the portion in the niger delta? except of course for there to be peace enough for oil to flow for him to use in developing himself and his true god created nation”.79 this may explain why oil producing communities within the niger delta continue to canvass for true federalism. this will allow the communities to participate in the decision-making process on how oil and gas resources extracted from their regions are developed and utilised. they view the current system which vests ownership of petroleum resource in the federal nigerian state as unsatisfactory as it permits the development of other regions of nigeria at the expense of the niger delta region.80 the quest for true federalism will require significant reforms of the municipal petroleum laws. any proposed reforms should also be undertaken at the continent wide level to facilitate a greater harmonisation of rules. the appa recently undertook a study on the possible standardisation of petroleum laws and contracts81. this has led to the debate on whether there is an african lex petrolea? the following part of this article further debates this point and considers the role that african social ordering norms can play in the development of a continent-wide lex petrolea. 78 amanda robinson, national versus ethnic identity in africa: state, group, and individual level correlates of national identification (working paper, university of berkeley, 2009) 5-6. 79 ikien et al (n 77) 20. 80 ibid. 81 nima tabari, lex petrolea and international investment law: law and practice in the persian gulf (crc press, 2016) 1.89. the denning law journal 159 part four: the development of an african lex petrolea and the relevance of indigenous social ordering norms conceptualising lex petrolea lex petrolea is defined as “transnational customary law applied by tribunals and courts dealing with hydrocarbon-related disputes”.82 like other systems of rules, lex petrolea has had to go through a legitimisation process. when the concept was first raised in the case of kuwait v. aminoil,83 the arbitral tribunal refused to accept kuwait’s arguments that there was a customary body of rules known as lex petrolea specifically as it pertains to the valuation of damages. since this arbitral decision, scholarly debate has arisen on whether lex petrolea can be considered as a sub-set of international law.84 doak bishop in his 1998 seminal work85 debated whether lex petrolea had been developed from “the internationalisation of business practices, usages and customs of the members of the international petroleum industry or community.”86 he found that there was inconclusive state practice and opinio juris to justify the maturation of a sub-set of rules in international law known as lex petrolea.87 he however opined that lex petrolea had begun to crystallise even if it was yet to “coalesce into a hard system of black letter law.”88 other works argue that lex petrolea falls within a branch of law known as international merchantile law or lex mercatoria.89 lex mercatoria is said to be derived from the “trade usage and practices of merchants.”90 the fact that lex mercatoria is developed by the practices of merchants implies that it is not state law neither can it be strictly 82 ibid. 83 published in: xxi international legal materials (1982) pp. 976â1053. 84 tahari (n 81), 1.90. 85 r doak bishop, international arbitration of petroleum disputes: the development of lex petrolea (1998) xxiii yb com. arb. 1131, 1151. 86 ibid. 87 tabari (n 81) 1.90. 88 john burritt mcauthor, oil and gas implied covenants for the twenty-first century: the next steps in evolution (juris, 2014) 384. 89 georges delaume, “comparative analysis as a basis of law in state contracts: the myth of the lex mercatoria” (1988) 63 tulane law review 575, 576-7. 90 alex waryrk, 'petroleum regulation in an international context' in tina hunter (ed) regulation of the upstream petroleum sector: a comparative study of licensing and concession systems (edward elgar, 2015). african ‘social ordering’ grundnorms 160 defined within international law. this is why some have argued that it is a third realm of law that exists independently outside international law and national law.91 since lex petrolea is considered as part of lex mercatoria, it can be further argued that it is designed to serve the needs and aspirations of the business community.92 in this sense, the legitimacy of lex petrolea is presupposed by the international petroleum industry to which it caters to.93 the stakeholders within this industry consist of national oil companies (nocs), large oil majors, independent companies and industry associations like the association of international petroleum negotiators (aipn). the latter body is responsible for the negotiation and development of internationalised oil and gas contracts which set out the principles and norms of lex petrolea. this however provides an incomplete picture on how lex petrolea is legitimised as a recognised field of law. apart from its validation by the industry that it caters to, childs points to the role that arbitral awards have played in validating the existence of lex petrolea.94 he argues that these published awards have addressed a range of issues regarding the exploration and production of oil and gas resources and can be considered as creating “a lex petrolea” or customary law comprising of legal rules adapted to the industry’s nature and specificities.95 it has be suggested that lex petrolea is further validated by petroleum development contracts.96 chief among these contracts are host state agreements (hsas) or government contracts which are transacted between oil producing states and international oil companies (iocs). while there is still some debate on the need to formulate a global host state model agreement, there is a school of thought that argues for the standardisation of terms “regardless of the identity of the host state”.97 national legislation has also contributed to the development of lex petrolea. the development of the body of arbitral case law on oil and gas 91 munir afm maniruzzaman, “the lex mercatoria and international contracts: a challenge for international commercial arbitration?” (1999) 14 american university international law review 657, 658. 92 waryrk (n 90) 21. 93 ibid, 21. see also thomas c childs, “update on lex petrolea: the continuing development of customary law relating to international oil and gas exploration and production” (2011) 4(3) j world energy law & business 214. 94 see discussions of child's thesis in waryrk's work (n 90) 27. 95 ibid 28. 96 timothy martin, “lex petrolea in international law” in ronnie king (ed) dispute resolution in the energy sector: a practitioner's handbook (globe law and business, london, 2012) 95 discussed in waryrk's work (n 87) 28d 97 waryrk (n 90) 14-15. the denning law journal 161 transactions is largely due to state nationalisation or expropriation of foreign investment in the oil and gas sector.98 these acts of expropriation and nationalisation are generally premised on the principle of permanent sovereignty which asserts domanial state control over the exploitation of petroleum resources. this establishes that although lex petrolea is derived from the trade usage and practices of the international petroleum industry, it does not negate the role that state legislation has played in its development as a separate field of law. one significant stakeholder that has been largely ignored in the debate on lex petrolea is the local or indigenous oil community.99 yet, as this article argues, the local community bears the brunt of oil and gas exploitation. this raises an important question on why indigenous social ordering rules have not played a role in the formulation and further development of lex petrolea. framing an african lex petrolea a leading energy law firm, ashurst100 has debated whether an african lex petrolea exists. this debate has arisen due to the comparative analysis of national legislation and host state contracts undertaken by appa states. the study is designed to identify the key principles, practices and trends that apply to the african industry. it also seeks for the development of a model production sharing agreement (psa).101 it is suggested that the development of these standardised rules and the model psa could lead to the establishment of an african lex petrolea.102 it is questionable whether this comparative study undertaken by appa states on the one hand and by “a consortium of international law firms and consultants,”103 on the other, will necessarily bring about the development of an african lex petrolea that will meet the needs of all stakeholders. it will appear that the appa study as currently formulated is designed to cater for the needs of african national oil companies (nocs) and international oil companies (iocs). it does not appear that local oil communities were directly involved in its decision-making process. the non-inclusivity of local community needs may mean that an “african lex petrolea” solely developed from this 98 ibid, 17-18. 99 waryrk (n 90)13. 100 nicholas bonnefoy, moving towards an african lex petrolea (ashurst llp energy briefing, 2012). 101 ibid, 1. 102 ibid. 103 ibid. african ‘social ordering’ grundnorms 162 appa study will fail to make any meaningful impact in resolving resource conflicts between appa states, mncs and local communities. understanding that the oil and gas industry is prone to the risk of disputes, industry stakeholders have developed lex petrolea to assist in the resolution of such disputes. while these body of transnational rules have proved useful in the resolution of disputes between states and mncs, the notion of lex petrolea as presently conceived is unlikely to play any major role in the resolution of current and emerging disputes between states (and mncs) and local communities. this is because the norms that currently shape lex petrolea are primarily derived from western received law and practices. this article argues that there is a place to embed african social ordering norms which focus on communitarianism, human dignity and social justice in oil and gas dispute resolution mechanisms. the inclusion of these rules in the legal system of governance of oil and gas resources will help to de-escalate the tensions between the “civic public” represented by african state structures and the “primordial public” represented by oil and gas producing communities. a close appraisal of ongoing conflicts in regions like the niger delta establish that community agitations extend beyond environmental degradation of their land and resources. these conflicts focus more on the fundamental concern that the african civic state has failed in its ‘custodian’ role to properly utilise and administer petroleum resources derived from the local oil communities. these communities still value and hold on to the tenets of fundamental african social ordering rules such as ubuntu which are based on humaneness, fairness, social justice and sharing. there are variants of the ubuntu principle which exist in the niger delta region, including the ijaw concept ‘kemesese-ebi’ (the common good of all). this supports the arguments of chigara104 and ramose105 that there is an underlining african social ordering norm that promotes social justice, fairness and communality. the overarching argument of this article is that there is a role that this underlining norm can play in promoting a more equitable framework of petroleum governance in sub-saharan africa. a call for the inclusion of this underlining african social ordering norm in lex petrolea and in oil and gas dispute resolution mechanisms may not be such a utopian ideal. the recent edition of the tdm journal shows that there is growing call for the inclusion of african indigenous 104 chigara (n 4). 105 ramose (n 38). the denning law journal 163 rules in the arbitration of oil and gas disputes arising from africa.106 this does not mean that these rules will necessarily gain the same status as the current western rules that frame transnational petroleum law and national legislation. but the south african 1993 interim constitutional model demonstrates that it is possible to embed indigenous african rules within a civic public legal framework that focus on an african understanding of humaneness, social justice and communitarianism. however, the universalism and cultural relativism debate which resonates in the human rights law may have an impact on the development of an african lex petrolea. this is an important point that requires further deliberation. african lex petrolea: unintended consequences of cultural and ethnic relativism the call for the inclusion of african social ordering rules evokes the universalism and cultural relativism debate. this is a debate that continues to resonate in human rights law. the debate is premised on the viewpoint that human rights are universal and do not require cultural validation.107 this is because human rights are premised on the inherent value of being human. but donnelly108 in his leading work points out that there are aspects of human nature that can be considered culturally relative. he therefore argues that some recognition should be given to the ‘crosscultural variations in human rights.’109 conversely, those who argue against ‘cultural variability’110 have based their arguments on the fact that cultural relativism can be used as a tool of oppression111 and for perpetuating repugnant norms and practices. they further argue that rights universalism ensures that all human beings are entitled to equal rights.112 106 see for example florence shako, “towards a transnational legal order: the role of culture in commercial arbitration in africa” (2016) 13(4) tdm journal; victoria safran, “african voices on cultural issues impacting the role of africans and africa in international arbitration” (2016) 13(6) tdm journal available at https://www.transnational-dispute-management.com/journal-browseissues-toc.asp?key=68 . 107 jack donnelly, “cultural relativism and universal human rights” (1984) 6(4) human rights quarterly 400. 108 ibid, 403. 109 ibid. 110 ibid. 111 chi-yu shih “opening the dichotomy of universalism and relativism” (2002) 2(1) human rights and human welfare 13. 112 leon calleja, “universalism, relativism and the concept of law” (2014) journal of the philosophy of international law 59. african ‘social ordering’ grundnorms 164 a full discussion on the “universalism and cultural relativism” debate is beyond the scope of this paper. however, it does shows the challenges that could arise if an african lex petrolea is shaped primarily on indigenous african social ordering norms. it raises the important concern on whether an african lex petrolea primarily based on indigenous social ordering norms can result in cultural and ethnic relativism respectively. ethnic relativism, in particular, is a matter of concern as it focuses on the superiority of one ethnic group over another and delegitimises national hegemony and identity.113 the example of the niger delta which is a current theatre of oil and gas resource conflicts demonstrates the dangers of a petroleum governance framework that perpetuates ethnic relativism and not national hegemony and identity. as previously stated, there is the continuing belief that wealth extracted from minerals within this region is being utilised by other ethnic groups within nigeria to the detriment of the developmental needs of the groups within the niger delta.114 while it is important to promote true federalism which allows the component units to exert greater control over the natural resources situated within their regions, this should not detract from the fundamental objective of the common national good. it is debatable whether the underlining normative rule of ubuntu and its different variants will perpetuate ethnic relativism. this is because the concept itself canvasses for interdependence and common humanity where all is done for the common good of all. unfortunately, many african states which are obligated by their constitutions and national laws to manage natural resources in trust for the common benefit of their citizens have failed to do so. this is why there is a need for the restructuring of the framework of petroleum governance which is currently premised on domanial state ownership. the inclusion of an underlining african social ordering norm which facilitates ‘a bottom to top’ approach which encourages local communities to participate in the decision-making process may help to de-escalate current volatilities within theatres of resource conflicts in sub-saharan africa. part five: conclusion sub-saharan africa is a key region for oil and gas exploitation. yet some of its key petroleum basins are regarded as theatres of resource conflicts. these conflicts are partly due to dialectical conflicts between the “civic public” and the “primordial public”. this article argues that 113 robinson (n 78). 114 ikien et al (n 77.) the denning law journal 165 these conflicts can be de-escalated through the development of an african lex petrolea comprising of received western law and practices and indigenous african social ordering norms. the current effort of the appa states to develop standardised rules for the continent is a step in the right direction in ensuring effective governance of petroleum resources. the appa study however has some shortcomings. this is because the study primarily caters to the needs of oil companies and african civic states. yet as ekeh’s “two publics”115 demonstrates, many african communities operate within “two publics”the “civic public” consisting of the state apparatus and institutions, and the “primordial public’ consisting of the family, community and ethnic groupings. the article recommends for the development of an inclusive framework work of petroleum governance that is not only premised on domanial state ownership alone, but one that embodies the underlining african social ordering norm of social justice, fairness and inter-dependence. this norm is known by many names, the most popular description of the norm is the term ‘ubuntu.’ this article however questions whether this norm has attained the status of grundnorm as argued in other literature.116. this is because the “civic public” represented through the state structure controls the legitimisation process of legal normative formation. the presupposition exercise for normative formation is premised on state sovereignty. this has led to the establishment of a hierarchical system of legal governance where the state constitution is regarded as the supreme law of the land and embodying the grundnorm or fundamental rule. the 1993 transitional constitution of south africa was presented as a bold attempt of an african state to incorporate the underlining basic african social ordering norm known as ubuntu. unfortunately this was not followed through in the final 1996 constitution. this demonstrates the continuing application of the modernisation theory which requires africa to continue to treat western received law as its benchmark for development and modernisation, without equal regard to african social ordering norms. this article recommends further empirical study be undertaken by the appa or similar bodies to ascertain the continent-wide application of these norms and their relevance to the development of an inclusive framework of petroleum governance for all stakeholders in africa. 115 ekeh (n 11). 116 chigara (n 4) above. 37 denning law journal 2015 vol 28 special issue pp 37-65 environmental taxation in the uk: the climate change levy and policy making john mceldowney and david salter# abstract environmental taxation is different from many other forms of taxation as it is not only used to raise revenue but it is also able to marginally influence behaviour to protect and enhance the environment. it provides valuable market led mechanisms to help limit greenhouse gas emissions, encourage sustainable behaviour and improve environmental performance to address climate change. the post paris (cop21) agreement provides a framework for global actions to address climate change and this sets the context for the discussion of environmental taxation. environmental taxes have enormous potential to change carbon usage. in 2012, the coalition government (2010-2015) opined that the definition of an environmental tax includes three principles, namely that the tax is explicitly linked to the government’s environmental objectives, that the primary objective of the tax is to encourage environmentally positive behaviour, and that the tax is structured in relation to environmental objectives, particularly the more polluting the behaviour the greater tax levied.1 the current government has adopted and applied this definition. by way of contrast, the definitions of environmental taxation favoured by the office for national statistics (ons) and the organisation for economic cooperation and development (oecd), respectively, give a wider remit for environmental taxation and policy making and include, for instance, various transport taxes which, as will be seen, do not fall within the government’s definition of an environmental tax. the climate change levy, which is the focus of this article, was introduced as one of a series of  professor of law, school of law, university of warwick. e-mail: j.f.mceldowney@warwick.ac.uk. # senior associate fellow, school of law, university of warwick. e-mail: david.salter10@virginmedia.com. 1 janet e milne and mikael skou andersen, “introduction to environmental taxation concepts and research” in janet e milne and mikael skou andersen (eds), handbook of research on environmental taxation (edward elgar, 2014) 15-32. environmental taxation in the uk 38 new environmental taxes on business energy use in 2001. it is charged on electricity, gas liquefied petroleum gas and solid fuels used by business. generally, environmental taxes are intended to increase investments in renewable technologies while reducing carbon emissions, but they are vulnerable to political influence and policy changes. thus, the rationale for environmental or ‘green’ taxes has shifted perceptibly to raising revenue rather than enabling government to meet its obligations under the climate change act 2008. environmental taxes are also susceptible to oil prices and fluctuations in the global economy. the north sea oil and gas industry is going through a difficult period of retrenchment. a recent independent report has suggested that the industry has two years to adjust to changing economic circumstances.2 inevitably, this will impact on the tax revenues raised from this sector. in an ideal world, environmental taxes should be easy to avoid through a change in behaviour and, consequently, hard to evade. environmental taxes provide important means to achieve policy objectives, but their full potential requires public support and, especially, engagement by the business community. the future of environmental taxes may depend on the success of ‘green’ investment. there is a case for introducing a single climate tax on business. undoubtedly, environmental taxes deserve greater attention in the economic toolbox to meet climate change commitments. the uk faces some difficult policy decisions under the climate change act 2008 to meet the 2030 energy and climate change package targets.3 currently, the uk receives 7.5 % of tax revenue from environmental taxes.4 to date, environmental taxation has had mixed outcomes in the uk, though few doubt its potential to define the future of carbon based energy use. keywords: environmental taxation, climate change levy, mirrlees review, carbon taxes, transport and energy taxes. 2 price waterhouse coopers, north sea oil and gas industry (london, 12 june 2016). 3 house of commons, environmental audit committee, eu and uk environmental policy (3rd report session 2015-16 hc 537) paras 3-15. 4 house of commons, postbrief, measuring performance for the carbon budgets (number 17, january 2016). the denning law journal 39 introduction environmental taxation is distinctive from other forms of taxation as it is intended to raise revenue as well as marginally influence behaviour to protect and enhance the environment. it applies a market led solution to reduce climate change through favouring low carbon technologies. 5 altering behaviour is not easily achieved and environmental taxation is subject to many socio-political influences. the desirable outcomes are often contested and to be effective their design, regulation and enforcement need to be carefully judged. the so-called “greening” of the tax system is favoured by many international organisations including the oecd and the european environmental agency (eea). the underlying assumption is that the tax base should address environmentally harmful or polluting activities and favour environmentally beneficial or neutral activities. increasing the share of environmental taxes in public revenues is a common aspiration with the intention of shifting the taxation of labour towards environmental taxation by 2020. 6 the adjustment in taxation from traditional sources, such as income to activities that may damage the environment is likely to be especially challenging when there are large budget deficits and constraints on public spending. fluctuations in the global economy and in oil prices also add to the difficulties of ensuring consistent policy making. many western countries are no longer high users of energy intensive industrial processes that now reside, principally, in china and india. this has implications for the taxation base upon which environmental taxes are drawn. the eu commission has given strong support for increasing the application of environmental taxation. 7 the eea 8 has also favoured reforming environment taxation suggesting that member states adopt the wider use of taxation to achieve environmental goals. 9 an additional benefit is that environmental taxation facilitates international country 5 janet e milne and mikael skou andersen (eds), handbook of research on environmental taxation (n 1) 15. 6 hm treasury, reforming the business energy efficiency tax landscape, (september, 2015). 7 eu commission, roadmap to a resource efficient europe (com(2011) 571/3). 8 european environment agency, environmental tax reform in europe: implications for income distribution (eea technical report no 16/2011). 9 eu parliament library briefing, environmental taxation in the eu (eu parliament, 2 february 2011). environmental taxation in the uk 40 comparison and measurements that provide an indication of country performance on energy usage relative to the economy and growth. a more coherent and integrated approach to taxation, including environmental taxes, is favoured in the findings of a review into uk taxation tax by design10 published in 2011, which was chaired by sir james mirrlees.11 it is argued that in order to avoid short-term cyclical political change that it is necessary to integrate environmental taxation more fully into the uk taxation system. the coalition agreement entered into by the conservative and liberal democrat parties in 2010 made a commitment “to increase the proportion of revenue raised from environmental taxation by the end of this parliament.” this aspiration has been continued by the conservative led government since 2015 and remains so today. while policy makers may be encouraged towards environmental taxation, it is important to ensure that environmental taxation is coherent, and appropriately adjusted within the tax system as a whole. the climate change levy is a tax on non-domestic use of energy which was introduced in april 2001. it is a tax on electricity, gas, liquefied petroleum gas and solid fuels when supplied to business. its main aim is to reduce energy demand and greenhouse gas emissions. the levy required considerable negotiation with business to have it accepted, including a 0.3% cut in employers’ national insurance contributions. the ensuing revenues had to be recycled into the corporate sector as employment tax refunds. this was a form of “earmarking” since the revenues were not used for a specific purpose other than mitigating the taxes imposed on the taxpayers paying the levy. earmarking is used to mean the practice of designating or dedicating specific revenues raised from taxation to offset specified public expenditures and public services. undoubtedly, the aspiration that prompted the levy was the mitigation of the socio-economic effects of an environmentally related tax. this is indicative of some of the problems relating to environmental taxation. more recently, adjustments to the climate change levy 12 are in train taking certain renewals out of an exemption for the tax. this underlines the susceptibility of environmental 10 institute for fiscal studies, tax by design (london, 2011). 11 it is noteworthy that the mirrlees review does not consider the application of the “tobin tax”. this was named after james tobin who suggested a tax for currency transactions to dissuade short term currency speculation. for historical background and context see the tobin tax: recent developments, (house of commons library, sn06184, 16 january 2012). 12 house of commons library briefing paper, climate change levy: renewable energy (number 07283, 26 august 2015). the denning law journal 41 taxation to differing political policies when attempting to influence behaviour to reduce environmental pollution that may prove costly to business and industry. trends in oil and fuel prices reveal broader weaknesses because of geo-political influences such as war in the middle east and over-production of oil from opec countries lowering global oil prices. slow-downs in major economies such as china may also have an impact on reducing demand for oil. it is also unclear if environmental taxes are regressive and more research is needed on the effectiveness of policy making. in february 2016, the house of commons treasury committee expressed concern about the lack of clarity and stability on environmental taxation.13 this article begins with a short history of environmental taxes, followed by an explanation of how environmental taxes are defined in the uk. the significance of the climate change levy is assessed in terms of lessons gained and reforms proposed. this is followed by a discussion of carbon taxes and the growing importance of transport and other forms of energy taxes. finally, the future of environmental tax is considered, including an assessment of its potential to change attitudes to protecting the environment. since 1993, uk environmental taxes have been relatively stable and remain around 7.5% of total revenue from taxes and social contributions.14 the history of environmental taxation environmental taxation may be traced back to environmentalism in the 18th and 19th century and the protection of the environment as a means of preventing and ameliorating social evils. 15 pigou was influential in developing ideas associated with “economic welfare.”16 the principle that government action was favoured whenever it appeared that economic welfare should or might be increased. the pigouvian principle of taxation is that the tax should be used to correct market externalities. this is intended to raise the marginal private costs to the level where it equals higher marginal costs. consequently, environmental taxation offers a means to deter pollution. the tax takes into account the cost imposed by pollution on others and thus internalises external costs. linked to pigou’s analysis was 13 house of commons treasury committee, spending review and autumn statement 2015 (6th report of sessions 2015-16 hc 638). 14 office for national statistics, environmental taxes 2014: london: office for national statistics, 2015. 15 boyd hilton, the age of atonement 1785-1865 (oxford 1986) 270. 16 ac pigou, the economic of welfare (london 1912). environmental taxation in the uk 42 a strong educational value, especially for business developments associated with economic growth. pigou’s underlying philosophy was to impose a tax on companies based on the external costs they generated. this was intended to reimburse society for the external costs while internalising the cost within the company. so-called pigouvian taxes give incentives to companies to look for ways of reducing their market externalities and, thereby, their tax liabilities. the benefits ensure that regulatory structures are in place within the company itself rather than having to be applied through external regulatory controls. this is seen as potentially beneficial to the way environmental regulation may work. instead of complex external systems of regulation, environmental taxation may provide more effective solutions. environmental taxes first appear in france in 1959 in water legislation as policy makers became interested in their potential to address pollution. in 1971, environmental taxation was used to tackle effluent control in the netherlands and germany. economists have led the way in developing environmental taxation especially in the us in the 1960s.17 in 1974, it was accepted in japan to pay for victims of pollution. the experience of the us and japan also showed how effective that taxation might be in curbing emissions. environmental taxation has the potential to replace other forms of taxation, but this fundamental reform of the taxation system has been resisted. in recent years setting a price on carbon has attracted renewed interest and many international experts have argued for environmental taxes to be at the centre of tax reform.18 this means environmental taxes are closely linked to a variety of market based policy instruments, including the inverse, an environmental subsidy. policy makers find market-based instruments such as pricing or quantity related taxes more beneficial than the traditional command control system of regulation and policy making. this makes a shift from prescription and bans that are often enforced by courts to incentives and negotiation to prevent and inhibit pollution. economists largely dominate the literature on environmental taxes, but legal scholars have begun to recognise the significance of environmental taxation. this is partly because of legislation adopting environmental taxes, but also because there are various legal requirements that may become the 17 michael g faure and stefan e weishaar, “the role of environmental taxation: economics and the law” in janet e milne and mikael skou andersen (eds), handbook of research on environmental taxation (n 1) 399-422. 18 there is an annual global conference on environmental taxation. the denning law journal 43 subject of disputes in the courts. legal principles of fairness and due process are relevant as are questions of standard setting and quality controls. the uk supreme court has held that the uk is in breach of the air quality directive thus paving the way for its better application that will inevitably have to address the causes of air pollution in cities and towns.19 the question of how to address air pollution in cities and towns raises issues about congestion taxes and other mechanisms to prevent pollution. diesel vehicles provide a major challenge in terms of nitrous oxide emissions and this makes environmental taxation particularly relevant today. legal discourse is engaged in both policy making as well as the interpretation of various aspects of tax law. exposing the choices and dilemmas facing environmental taxation is highly challenging. environmental taxes are intended to fund public expenditure, but there are associated distributional burdens that have to be considered. there are important questions about whether or not environmental taxation is progressive, especially in the area of transport. defining environmental taxation four possible approaches to the definition of environmental taxation are evident. first, the oecd, along with eurostat, defines environmental taxes according to their intent, namely to encourage pro-environmental outcomes. eurostat offers a general definition of environmental taxes that relates to excise duties levied on environmentally harmful tax bases, such as energy products, transport, polluting activities and resource use. the aim is to influence consumers and producers through price incentives towards less environmentally harmful behaviour. the oecd has a generic definition that deems environmental taxes to mean “any compulsory... payment to general government levied on tax-bases deemed to be of particularly environmental relevance”.20 the second approach is the one adopted by the uk’s office for national statistics (ons). broadly, this definition is similar to the definitions used by the oecd and eurostat. it defines environmental taxes by reference to the effects of the taxation on pro-environmental outcomes: 19 r (on the application of client earth) v secretary of state for the environment food and rural affairs [2015] uksc 28. 20 the oecd definition is cited in ifs, the uk tax system and the environment (2006) 1. environmental taxation in the uk 44 “an environmental tax is defined as a tax whose base is a physical unit such as a litre of petrol, or a proxy for it, for instance a passenger flight that has a proven specific negative impact on the environment. by convention, in addition to pollution related taxes, all energy and transport taxes are classified as environmental taxes.”21 under the ons definition, environmental taxes include fuel duty, vat on fuel duty, renewable energy obligations, vehicle excise duty and air passenger duty. these are included in the uk’s annual budget report. there are several environmental taxes that have been abandoned or changed in the uk. the gas levy was introduced under the gas levy act 1981, but was repealed by the finance act 1998. the hydro-benefit was introduced in 1991 to protect consumers in remote areas from excessive charges resulting from the increased costs of supply. it was abolished in 2004, because it infringed eu law. it was maintained for a limited time, thereafter, by scottish and southern energy. there are many types of environmental tax and their diversity is one of their attractions.22 the third approach, favoured by hm treasury, is to consider the definition of environmental taxes by reference to a central question, namely what is the primary intention behind the taxation. taxes that are primarily revenue raising are excluded from the definition of an environmental tax. there are three criteria to determine whether there is an environmental tax. they are:  the tax is linked to the government’s environmental objectives;  the primary objective of the tax is to encourage environmentally positive behaviour; and  the tax is structured in relation to environmental objectives for example the more polluting the behaviour the greater the tax levied. the weakness in these criteria is that they are directly linked to the policy-making of the government of the day rather than any objective or 21 see the office for national statistics, uk environmental accounts 2010 (june 2010). 22 for example, the rail franchise premia under the railways act 1993 and applied to the first franchises until 1996; boat licences as a means of regulating boat use; fishing licences from 1995 onwards; the aggregates levy introduced in 2002 and which ensures the environmental impact of aggregates extraction; motor vehicles taxes (including excise duty paid by businesses/households) and landfill taxes since 1996 according to the weight of the material deposited. the denning law journal 45 independent assessment of pro-environmental outcomes or intent of the taxation. while this is a permissible interpretation of environmental taxation, it is at variance with the interpretation favoured in the first approach by the ons and international organisations. following the establishment of the coalition government in 2010, there were many pledges to ensure that environmental taxes are as large part of total revenue to 2015/16 as they were in 2010/11. in july 2012, the coalition government promised to “increase the proportion of tax revenue accounted for by environmental taxes”23 as part of its promise to be “the greenest government ever”. hm treasury’s review of environmental taxes published in july 2012 24 identified five environmental taxes. this stance has been maintained today under the conservative government elected in 2015. in the uk, environmental taxes are the:  climate change levy (carbon price floor),  aggregates levy,  landfill tax,  eu emissions trading system (euets), and  euets carbon reduction commitment. significantly, hm treasury excluded fuel duty and air passenger duty which are included in the ons, oecd and eurostat definitions. in contrast, the institute for fiscal studies (ifs) proposes a fourth definition “that reflects all those taxes which are environmental either in terms of intent or outcome for which there are revenue forecasts to 2015/16”.25 unlike the hm treasury definition, this definition includes the taxation of a company car which reflects the efficiency of the car, and vat on fuel. the significance of the definition of an environmental tax is that it has a major effect on whether or not targets are met and whether the potential of environmental taxation is fully realised. the ifs has assessed how the different definitions may have remarkably different consequences. using hm treasury’s definition, the ifs has estimated that the coalition government’s pledge to ensure that the environmental tax share of tax 23 hm treasury, budget 2011, (hc 836 march 2011) paras 1.110-1.111. 24 the five are landfill tax, the aggregates levy, climate change levy, the eu emissions trading system, and the euets carbon reduction commitment. 25 see the ends report “mps call for environmental tax roadmap” (10 february 2016). environmental taxation in the uk 46 revenue should double from 0.4% to 0.9% by 2020. significantly, it calculated that revenue from environmental taxes would fall between 2010 and 2015/16 by £3.3 billion namely 56% of tax receipts this fiscal year before the government’s pledge to increase environmental taxes made under the coalition agreement is missed.26 the exclusion of fuel duty is therefore significant in the calculation as it raised almost £27.8 billion in 2015/16.27 by excluding fuel duties, the pledge to raise duty in line with the rpi28 is harder to meet as the environmental tax share of tax revenue is set to fall by 0.8 % in 2015/16. 29 the exclusion is politically motivated because, as discussed below, there are strong political pressures to reduce fuel duty in terms of public expectations of lower taxes. the exclusion of fuel duty makes the policy of reducing taxes easier to meet in line with the autumn statement in 2015 cancelling any rise in the fuel duty. this is likely to be the policy for some time to come. if the ons definition is adopted, the proportion of revenues raised by environmental taxes will fall from 7.8% to 7.1 %. this would breach the pledge set by the coalition government and now the conservative government that revenue from environmental taxes should rise by 5% or £2.3 billion.30 this has not happened. the definition of what to include as an environmental tax is largely a matter of political choice. in 2011, the coalition government’s plan for growth31 included the intention to move to a low-carbon economy fostered, in particular, by a £3 billion capitalisation of the green investment bank (soon to be privatised) to secure investment in a green infrastructure as well as a floor price for carbon for electricity generation from 1 april 2013. this remains the present position, but it may have to be adjusted if nuclear energy is to be taken into account. linking environmental taxes to total revenues is not necessarily helpful. setting targets is also subject to variable considerations that may ultimately reduce their credibility. the main consideration ought to be the improvement of the environment. the mirrlees review set high 26 institute for fiscal studies, “a defining issue? the government’s pledge to raise the share of revenue from green taxes” (london 12 december 2012). 27 see office for national statistics, environmental taxes 2014 (london 2015) 14. 28 ons (n 27) 4. 29 ons (n 27) 2. 30 house of commons library briefing paper, energy policy overview (cbf 7582, 5 may 2016). 31 hm treasury, plan for growth (march 2011). the denning law journal 47 expectations that environmental taxes would be more fully integrated into taxation policy with greater clarity given to their role and purpose. it also sought to include fuel duty and related taxes within the definition of environmental taxation. hm treasury has rejected this approach. the climate change levy the climate change levy (ccl) introduced in april 2001 is a tax on business energy use. it is one of the uk’s flagship environmental taxes.32 the inspiration for the ccl came from a hm treasury report published in november 1998 which recognised that such a levy could act as an important economic instrument to improve the industrial use of energy by commercial and business enterprises.33 the ccl is charged on electricity, gas, liquefied petroleum gas and solid fuels when supplied to business. the domestic sector, including public transport, is exempted. in addition, it is complemented by a system of climate change agreements (ccas) that incentivise energy intensive businesses with an allowance of an 80% reduction in the ccl where they agree to reduce emissions and increase energy efficiency. in order to make the ccl politically viable, the revenues from the ccl were recycled back to the corporate sector including commercial and business enterprises through employment tax refunds. the ccl required careful negotiation with business. initially, it was supported by a 0.3% cut in employers’ national insurance contributions. this combination of national insurance contribution reductions and the ccl was not planned to increase the burden on the business sector but to encourage efficiency in energy use. by 2006, the value of national insurance contribution reductions exceeded the receipts from the ccl. as a consequence, additional incentives were introduced to encourage industry and business. an energy efficiency fund of £50 million was established through the carbon trust. the trust has responsibility for the administration of various tax subsidies, including enhanced capital allowances to encourage investments in environmentally friendly energy equipment. the importance of the ccl is that it is charged on industrial and commercial use of electricity, coal, natural gas, and liquefied petroleum gas and that the tax varies with the type of fuel used. the original intention 32 house of commons library, briefing paper (number 07283 26 august 2015). 33 see hm treasury, economic instruments and the business use of energy: a report by lord marshall (november 1998). at the time, lord marshall was chairman of british airways. environmental taxation in the uk 48 behind the tax was to help meet a domestic uk goal of a 20% reduction in carbon dioxide emissions between 1990 and 2010.34 during this period, a major influence was lord marshall‘s recommendation in the 1998 hm treasury report that a downstream tax was desirable to increase “incentives” for the take-up of renewable sources of energy.35 this goal is important as it defined the rationale for the tax and acknowledged the important policy making role that environmental taxes perform. a brief history of ccl is as follows. 36 in 1999, the then labour government took steps to ensure that the new ccl would be structured to reflect the energy content of fuels. notably, the provision of electricity was treated according to the source of the generation of supply. however, electricity supplied from a renewable source was exempt. this exemption did not apply to energy generated from peat, fossil fuel or nuclear fuel. in 2005, this government set an optimistic target with a planned reduction of 3.5 million tonnes of carbon over the next five years to 2010. this was partly to be achieved through a reduction in demand for electricity in the commercial and public sectors. de-industrialisation was also seen as an important element in the reduction of carbon due to reductions in electricity usage. the importance of the exemption, in practice, was that it involved hm revenue and customs in overseeing the operation of the terms of a renewable source contract. the office of the gas and electricity markets (ofgem) and the northern ireland authority for utility regulation (niaur) have to certify that the renewable source electricity has been produced by an accredited generator. the process of certification is detailed and includes a renewable levy exemption certificate for each complete megawatt hour of renewable electricity produced. details of the certificates issued are provided in the data set out by ofgem. recently, the incumbent conservative government decided to abolish this renewable exemption. this was unexpectedly announced in the budget statement in 2015.there are transitional arrangements in place from 1 august 2015. the consequence of removing the exemption is to raise additional funding of £450m in 2015/16 which is expected to rise to £910m by 2020/21. there are guidelines on the implications of the changes. one reason for the government’s decision to 34 house of commons library, climate change levy (sn/bt/235, 20 november 2009) and house of commons library, climate change levy: renewable energy (number 07283, 26 august 2015). 35 hc deb 17 march 1998 (cc 1108-1109); hm treasury budget press notice hmt 14 (17 march 1998). 36 the history is set out in some detail in the house of commons library, climate change levy (sn/bt/235, 20 november 2009). the denning law journal 49 abolish the exemption is that it was impossible to distinguish between renewables generated in the uk and those generated overseas. the government’s position is that one third of the exemption went to overseas generators. some of the energy generators have complained about the speed of this change and the absence of appropriate consultation. they have argued that there had not been sufficient time to take account of the change in policy and that it was illegal. they decided to take a judicial review against the government complaining that the changes had been taken with insufficient warning. the administrative court37 rejected their case on the grounds that no express legitimate expectations or assurance had been given to the generators and that the public interest justified the government’s action with the consequence that the government’s policy should prevail over any private interest. the speed of implementation of these new arrangements for electricity clearly caught the industry by surprise, but it also highlights the vulnerability of tax planning and the difficulty of longer term strategic thinking. the implications of the abolition of the exemption are to make renewable electricity generators in effect pay a carbon tax. this also illustrates the difficulty of environmental taxes in general, namely that their rationale may be distorted by the need for government to raise additional revenue. the vulnerability of environmental taxes is an entirely political choice. in the current government’s election manifesto in may 2015, it was promised that there would be no increase in the rates of vat, income tax or national insurance in the next parliament. this has made other sources of taxes vulnerable to adjustment and with a view to enhancing their revenue yields. the 2016 ifs green budget, published in february 2016, has predicted that the “government’s plan to reach a fiscal surplus is predicated on tax receipts increasing by 1.1% of national income (£21 billion in today’s terms) between 2015-16 and 2019-20”. 38 current estimates suggest that the ccl is forecast to raise over £2.3 billion in revenue in 2015/16 and this target is likely to be met.39 37 r (on the application of drax power and infinis energy holdings) v hm treasury and hm revenue and customs [2016] ewhc 228 (10 february 2016). 38 ifs, ifs green budget 2016 (london 2016) 4 39 ibid. see also house of commons briefing paper cbp 7582, energy policy overview (5 may 2016). environmental taxation in the uk 50 carbon and energy taxes the ccl has been subject to two major criticisms. first, it is poorly conceived and it would be efficacious to replace it with a carbon tax i.e. a tax on fossil fuels used especially by motor vehicles and intended to reduce emissions from carbon dioxide. secondly, it has a disproportionate impact on manufacturing. both criticisms have some merit. the ccl does not vary directly with the carbon content of fuels. however, successive governments have shown reluctance in taking forward a carbon tax. the economic and political sensitivities are such that this has proved too difficult to manage. in 2005, hopkinson, in a paper for the institute for public policy research (ippr), put forward a case for restructuring the ccl, which acknowledged that carbon dioxide emissions vary so considerably between the different fuels, particularly for coal and liquefied petroleum gas. the ippr suggested a differential levy for different fuels.40 there is opposition to adopting a domestic energy tax on the ground that it will only exacerbate fuel poverty even when the revenue is recycled to increase welfare benefits. pressure on the ccl has continued since 2005 with opposition from some business sectors that have objected to perceived unnecessary tax burdens. there is strong support for a carbon tax in the analysis offered by the mirrlees review, especially when viewed in the broader context of developing international carbon taxes. establishing a consistent price for greenhouse gas emissions is an area where environmental taxation might be developed further and made more effective. in environmental terms, the aim is to reduce greenhouse gas emissions, thus making it more expensive to burn fossil fuels. this may, in the short term, lead to production cost increases with an inevitable reduction in output and the potential to create labour market shifts and unemployment. however, there are many gains to be made, including an impact on climate change. pricing is the key factor, especially with the aim of reducing pollution. the ifs has estimated that: “the economic cost of a given reduction in carbon emissions would be far lower if the reductions occurred wherever they were cheapest. this would happen almost automatically if policy simply taxed all carbon equally, regardless of where it came from or how it was used: the price increase would mean that polluting activity of marginal value would no longer be worthwhile and would cease (or shift to using alternative fuels), leaving only those activities for 40 lisa hopkinson, the war on motoring myth or reality (london 2012) 25. the denning law journal 51 which burning fossil fuels was so important that it was worth bearing the higher price”.41 the ccl falls short of these ideals. there are wide variations in the emissions of carbon dioxide depending on the fuel used and whether it is within household or businesses. there is an absence of a coherent and consistent price for greenhouse emissions. policy is often contradictory ranging from the euets, the ccl, the renewables obligations and even in the application of vat. national taxation systems have to take account of international agreements and the globalised market makes any taxation system problematic. this must be acknowledged as a restraint on individual country initiatives. this is a long standing problem since the application of environmental taxes to energy following the agreements reached at the earth summit in rio in 1992, which led, in turn, to the un framework convention on climate change. five years later, in 1997, the kyoto protocol provided binding commitments on countries to reduce emissions of the principal greenhouse gases. the paris agreement (cop 21) is likely to encourage carbon taxes and a greater use of environmental taxation.42 in 2006, the stern review took matters to the next stage by providing an economic analysis of the costs of climate change. whilst in the mirrlees review, fullerton et al conclude: “… it is difficult to imagine that any substantial reduction in the uk’s emissions can be achieved without according a significant role to energy pricing measures, in some form, whether through taxes or emissions trading”.43 they suggest that the most appropriate solution would be to set a price for fossil fuel usage, including one imposed generally on carbon fuels. pricing is a complex and technical matter because as the authors suggest: 41 ifs, ifs green budget 2012 (london 2012) 175. 42 brookings institute, cop21 (new york 2016). 43 don fullerton, andrew leicester and stephen smith, “environmental taxes” in institute for fiscal studies, tax by design (london, 2011) 423, 450. environmental taxation in the uk 52 “as with any other externality tax, the aim should be to ensure that private decisions that result – directly or indirectly – in additional greenhouse gas emissions take account of the costs imposed on the global climate”.44 such environmental costs will be spread over a considerable time and are likely to include changes in sea-level and weather patterns characterised by storms, floods and droughts. costs of population dislocation and potential social conflict have all to be considered. ideally, it is concluded by fullerton et al that a tax to control atmospheric emissions of carbon dioxide would be levied on individuals and enterprises. this might be best included within the existing euets established in 2005. estimates can be made as to how such taxation might work. in 2006, permitted greenhouse gas emissions in the uk under the kyoto protocol were 652 tonnes, by 2015 these were reduced to 607.9 million. the aim is to reduce the emissions by between 12.7 and 20% by 2020.45 taxation in real terms might result in an aggregate revenue of about £13 billion, a sizeable amount equivalent to 2.6% of total receipts from taxes and national insurance contributions.46 it is envisaged that allowances, that is amounts set off against tax, might be calculated in terms of residential reductions and related taxes and might have to be adjusted to take account of the new taxation arrangements. this might provide a powerful set of incentives to users to change their habits and adopt environmentally friendly options. in summary, it is clear that energy taxes have the ability to affect behaviour, provide revenue streams and encourage the introduction of incentives for good practice. pricing can promote cost effective strategies and this has the potential to encourage behaviour changes. the environmental audit committee concluded: “the uk has a complex mix of environmental taxes and price signals, particularly for energy. for example, there are now four carbon “tax points” in the electricity supply chain. and there are a multitude of different effective tax rates on carbon emissions that vary between different users of energy and different fuels. the mirrlees review of the tax system concluded that there is a long way 44 ibid, 431. 45 committee on climate change, climate change and the uk emissions (march 2015). see also nao, a short guide to the department of energy and climate change (london 2015). 46 fullerton et al (n 43) 460. the denning law journal 53 to go to achieve a consistent price for carbon and that the range of policies and emissions sources is so complex that it is hard to say what the effective carbon prices are”.47 difficulties in addressing carbon emissions are also evident in pressure to reduce fuel duty rates.48 this is especially sensitive when fuel costs rise. when fuel costs fall, the problem is that the yield from the tax diminishes. having few tax incentives to switch to lower carbon transport alternatives, the long term environmental strategies may be muddled with short term tax reductions. the ifs green budget 2012 makes clear that there is a need for a coherent system of environmental taxes and that “the effective tax on carbon varies dramatically according to its source, and fuel duties are a poor substitute for road pricing.”49 currently, the euets is of limited coverage. there are inconsistencies between it and the remit of national domestic taxes that cover the source of the emission as between variables such as the type of fuel used and the identity of users i.e. business or domestic. reductions in levels of vat on domestic fuels act as a distortion and effectively subsidise the creation of carbon emissions. the solution proposed is to find a way to tax emissions that are not within the current euets arrangements. one suggestion made by the mirrlees review is to make greater use of vat. this has the disadvantage of arguably affecting poorer households disproportionally. consideration of how to encourage policy making that successfully improves the energy efficiency of domestic housing and encourages improvements and efficiencies in fuel usage is important. political policy making may well find this is a difficult task to address when public spending budgets are being cut and there is tight control over future spending. another example is the related application of airport passenger duty related to airport usage.50 the lessons for policy makers are that environmental taxes are complex and, without government prioritisation, they may lack political acceptance. transport taxes hm treasury’s exclusion of transport taxes from its definition of environmental taxes fits uneasily with the ons approach and the ifs definition that includes transport taxes. improvements in the design of 47 house of commons environmental audit committee sixth report: budget and environmental taxes 2010-2012 (7 july 2011) 13 para 21. 48 hm treasury, budget statement 2011. 49 ifs, ifs green budget (february 2012) 168. 50 ends report (issue 441, october 2011) 5. environmental taxation in the uk 54 transport taxes have the potential to improve the environment as well as increase tax revenues. the uk economy has to bear considerable costs because of road congestion, including time lost for journeys taken and the expenditure on higher fuel costs. transport taxes may take two forms – congestion charges and road taxes. congestion charges attempt to tackle traffic congestion, air quality and the economy. road taxes include fuel duties and vehicle excise duties, but there is no coherent system of motoring taxation, and this may result in unnecessary burdens on business and, ultimately, consumer costs. falling fuel taxes, since the end of 2014, have reduced the amount of tax revenue raised, and fuel duty was frozen in 2013 initially, until 2015. this was extended in the 2016 budget.51 congestion charges and road taxes the mirrlees review favoured congestion charging as a priority and as an important means to achieve environmental goals, while at the same time considering that taxes relating to motoring and congestion charges should be related in a coherent way. further, a recent department of transport study identified congestion as the largest cost to society.52 it estimated that congestion cost 12.3p per kilometre mile compared to 1.6p for all other environmental and safety costs. in relation to transport taxes, fullerton et al state: “it is clear, however, that an optimal system of road transport taxes would require taxes that could be precisely targeted against the various externalities involved. in particular, road pricing should charge drivers according to the distance driven, location and time. if so, then prices would vary to take account of congestion and noise externalities, leaving fuel duties to capture environmental externalities”.53 fullerton et al also raise doubts about whether any restructuring of the road transport tax system will result in any additional revenue, encourage motorists to change their behaviour, alter traffic patterns or ensure predictable gains for the environment. they argue, further, that the most appropriate measure is to consider congestion pricing, which is a very 51 house of commons library, briefing paper: petrol and diesel prices (number 04712, 17 march 2016). 52 department of transport, an introduction to the department for transport’s road congestion statistics (london 2015). 53 ibid, 484-5 para 5.6.6; fullerton (n 43). the denning law journal 55 sophisticated form of congestion charging, as a viable alternative. this would involve complex road pricing schemes developed by economic modelling. they conclude that considerable benefits would come from this innovation. such a wholesale reform would require public support and careful monitoring. there would have to be a commensurate reduction in fuel duty to leave overall revenues unchanged. underlying such reforms, of course, is the need for the political will to lead and implement change. to date, the experience of congestion charging has been patchy and indicative of party political division and extreme sensitivity to voter preferences.54 following the labour government’s 1998 transport white paper,55 first, the greater london authority act 1999 for london and, then, the transport act 2000 for the rest of england and wales introduced powers for local road users to be charged. in the case of london, this power is exclusively delegated to the elected mayor of london. in the case of the rest of england and wales, the powers are vested in the secretary of state in collaboration with local authorities. political parties are divided on the use of congestion powers and the then conservative opposition in the 1990s was opposed to the enactment of new environmental taxes. further, the local transport act 2008 provides for how charging is to be implemented in london with oversight powers given to the secretary of state over the equipment to be used and how the revenues from congestion charges should be raised. the london congestion charging system covers the london low emission zone (lez). there are emission standards that limit the amount of emissions and gases and where vehicles do not meet the requisite levels there is a daily charge. the lez, which was established by the previous mayor, ken livingstone, continued under boris johnson but with concerns about its effectiveness. over the years, various proposals to alter the parameters of lez have been put forward. since 2008 the charges have not been raised in line with the effective charging bands. the lessons from the operation of the lez are clear. in order to meet potential political opposition and voter rejection, the case for congestion charging needs to be more strongly advanced, especially in terms of consistency and coherence. the mirrlees review56 makes a strong case for 54 see mark bowler smith and huigenia ostik, “towards a classification of the central london congestion charge as a tax” [2011] british tax review 487. 55 detr, a new deal for transport: better for everyone (cm 3950 july 1998). 56 james mirrlees, “the mirrlees review: conclusions and recommendations for reform” (2011) 32(3) fiscal studies 331, 340. see also hm government, the coalition: our programme for government (may 2010) and dft, creating environmental taxation in the uk 56 making the pricing of environmental externalities a priority in the tax system and to provide a means of addressing the uk’s current, arbitrary and inconsistent pricing on emissions from different sources and a poorly targeted tax on fuel consumption. the solution lies in settling the externalities of environmental taxes giving an appropriate priority in the tax system: “we remain some way short of having a coherent system of environmental taxes to address imperatives around climate change and congestion. the effective tax on carbon varies dramatically according to its source and fuel duty is a poor substitute for road pricing”.57 the case for taking forward congestion charging is a case in point where the benefits are likely to be beyond reductions in carbon emissions. in 2006, the department of transport proposed a variable road pricing scheme.58 the variables included place, time of day and so on. the aim was to reflect the actual congestion levels and costs. if such a scheme were advanced, there would be sensitive political issues surrounding the public’s acceptance of the tax. even if there was some related reduction in fuel duty the true costs might prove excessive. this is a good example of relating consequences to policy-making. transport policy is strongly influenced by increasing demands on road use, linked to business and domestic usage. the importance of a transport policy is clear; its absence as a priority in government policy making is a matter of regret. there are many reasons for thinking that settling the tax regime may yet achieve the desirable consequences of making transport policy a reality. there is also the question of electric car use and its encouragement by government policy over traditional fossil fuel engines. this is an inevitable and fast growing development that also needs to be incorporated into transport policy. increasing reliance on electric cars feeds into the issue of electricity generation with profound consequences for energy policy. less revenue may be raised through congestion charging if electric cars are given an advantage which may mean a drop in revenue. at one level moving to a national road pricing scheme is an important benefit. it may also deepen our need for a coherent taxation policy. a holistic approach to environmental taxation rather than settling on a case by case growth, cutting carbon: making sustainable local transport happen (cm 7996, january 2011). 57 ibid 340. 58 see generally fullerton et al (n 43) 423. the denning law journal 57 basis is an essential aim. the question remains as to how best to achieve this within policy making, and, further, whether policy makers are capable of achieving this laudable aim? road taxes include fuel duty and vehicle excise duty. these duties generated a combined revenue of £33 billion in 2011. this amount has remained reasonably stable, for example, in 2014-15 when the revenue raised by fuel duty and excise duty amounted to £33.1 billion.59 this makes road taxes an important revenue stream, but ignores the overall costs to society in terms of congestion, road casualties, congestion costs, air pollution, greenhouse gas emissions and health matters. fuel duty is a case in point. using its definition of environmental taxes, the ons estimates that fuel duty accounts for 65% of all revenue raised by environmental taxes.60 the labour government (1979-2010) introduced a fuel duty escalator based on 2001 rates of vehicle excise duty which were calculated by reference to levels of carbon dioxide emitted by the vehicle. in 2011, the fuel duty escalator was renamed the fuel duty stabiliser.61 in march 2016, it was frozen for the sixth year in succession because of the dramatic fall in oil prices to around $40 barrel. motor fuel 62 has been subject to various revenue raising taxes, including, at one time, the above-mentioned additional year on year escalator to ensure that taxation maintained a consistent revenue stream.63 this resulted in rising fuel costs that were exacerbated by global market forces in the supply of oil. the result was to see a limit on the amount the government could reasonably expect fuel consumers to pay. high fuel costs have the potential for distorting prices for food and other consumables as well as goods and services more generally with a direct impact on inflation and living standards across different income groups. future policy shifts may include abolition of the fuel duty.64 the failure of hm treasury to regard fuel duty as an environmental tax because its original purpose was not to meet environmental objectives leaves the tax particularly vulnerable to the motoring lobby which complains of high fuel costs. such complaint does not take into account the environmental significance of the duty in shaping consumer behaviour 59 institute for fiscal studies, green report 2015 (london 2015). 60 ons, environmental taxes 2014 (london 2015) 3-6. 61 see house of commons library briefing paper, petrol and diesel prices (04712 17 march 2016). 62 zoe smith, the petrol tax debate (ifs briefing note no. 8 july 2000). 63 ifs report (n 59). 64 hm treasury, budget 2016 (london 2016). environmental taxation in the uk 58 towards the use of public transport and the purchase of environmentally friendly vehicles. it is clear that counting fuel duty as an environmental tax not only will ensure that motoring is an important source of tax revenue, but also becomes a lever of behavioural change. fullerton et al 65 commented that the abolition of the fuel duty escalator, its replacement in 2011 by a fuel duty stabiliser, followed by a freeze in duty for the sixth year in succession and consequent behavioural changes has resulted in a “decline in revenues relative to national income tax which is also due, in part, to the significant switch towards diesel fuel that has taken place in recent years”.66 this does not change the “uk pump price” of fuel which is one of the highest in the eu at about 10% more per litre than the eu average.67 environmental taxes also have the potential to distort the market as well as policy-making. as zoe smith concluded in 2000, environmental taxes may also lead to a conflict of interests: “the aims of the road fuel duty are conflicting. the propriety of demand for fuel that makes it difficult to reduce consumption through price rises makes it a good source of revenue for the chancellor. if the government did succeed in getting people out of their cars and onto public transport, they would lose fuel as a valuable source of revenue”.68 such potential for distortions in policy making needs to be appreciated in the political cycle and environmental taxes are susceptible to vagaries of electoral choices at election times or where government is unpopular. careful research and analysis are needed to ensure that one benefit is not outweighed by another. calculating the potential benefits and detriments of environmental taxation is essential for the future. energy and carbon use is another good example of this conundrum. poorer housing is inevitably less efficient in energy use. consequently, the revenue yield from energy taxes has to take account of the proportionate costs on different households. such distortions make the tax difficult in terms of settling the correct level. richer and poorer households need to be treated differentially;69 a factor 65 fullerton et al (n 43) 471. 66 ibid. 67 office for national statistics, environmental taxes 2014 (london 2015) 2-4. 68 smith (n 62) 8. 69 see generally al bovemberg and lh goulder, “environmental taxation and regulation” in aj auerbach and m feldsten (eds), handbook of public economics vol 3 (amsterdam 2002). the denning law journal 59 that through an inevitable element of progressivity can only add to complexity. another important source of revenue linked to the environment is the vehicle excise duty. this is based on an annual per-vehicle tax variable according to age and size of the vehicle, and from 2001, carbon emissions of vehicles. there are also tax reductions for alternative fuels. the overall aim is to encourage consumers to purchase less polluting vehicles. there is no settled view on how polluting the alternatives are and this is likely to discourage strong policy-making by government. transport taxes are also a good example of the efforts required by the government to convince the public of the advisability of taxation with a strong recognition of the environmental benefits that might accrue. the recent ippr paper has made a number of key observations about fuel costs. the most important is that “planned annual increases in motoring taxes should be part of a rational government policy designed to change behaviour and raise much needed revenue to fund sustainable transport measures”.70 the future of environmental taxes in the uk environmental taxation may offer an alternative to the much criticised command and control form of regulation and offers a wider range of regulatory techniques. there are practical as well as theoretical considerations. in practical terms, the finance (no 2) act 2015 prevents income tax, vat and national insurance contributions from rising above their current rates. this offers environmental taxation as a means of taking forward the raising of tax revenue as well as protecting the environment. at a theoretical level, the analysis offered by fullerton et al in the environmental studies chapters 71 of the research part of the mirrlees review makes a convincing case for the use of environmental taxation as opposed to conventional regulation based on the cost-effectiveness of various economic instruments. this is examined through the advantages and disadvantages of each approach. the main advantages of taxation are that it may provide incentives for innovation and it gives polluters an incentive to reduce pollution and, thereby, costs. further, as the tax may apply to each unit of residual emissions, this creates an incentive to develop new technologies. regulation seeks to achieve the same outcome, but, often, fails to encourage continued reductions and there is an incentive to bargain with the regulators on a case by case basis. regulators are 70 lisa hopkinson, the war on motoring myth or reality (london 2012) 25. 71 fullerton et al (n 43) see especially chapter 5. environmental taxation in the uk 60 dependent on information and data from firms, especially about abatement costs. dialogue and negotiation may invariably occur with a form of plea bargaining between the regulator and the industry. extracting reduced prices from regulators for compliance agreements is not unusual. examples abound over utility pricing or licensing agreements. in contrast, taxation has the advantage of seeking a cost-effective distribution of abatement without bargaining conditions. case by case consideration of each taxpayer is not required with the result that there is potential for greater fairness as all taxpayers face the same tax on their pollution. implicit in the claimed for advantages of taxation is the idea that the risk of individual negotiation and the erosion of environmental protection is reduced, but it should be noted that there is the possibility of negotiated settlements between hmrc and taxpayers. finally, conventional regulation may not be effective in raising revenue. this gives environmental taxation an obvious attraction in times of fiscal uncertainty. however, this may not always be decisive. the predictability of tax revenues being raised also has to be factored into the assessment. revenue is always dependent on behavioural responses and changing cultural attitudes. political choices are often overshadowed by election contests and voter choices. in respect of the environment, behaviour may be minimally influenced by taxation strategies as there are demands on energy and transport usage that are non-optional. this may vary from location to location and reflect local/central relations more than a desire to protect or enhance the environment. environmental taxation may be limited in its ability to change or influence behaviour. taxation may simply be passed on to third parties through pricing or other market mechanisms. this may dilute its effects. collectively and generally, environmental taxation and other assorted economic instruments have drawbacks and shortcomings that also need to be considered. for many reasons, uniform pollution taxes may themselves be a result of inefficiency in identifying the sources of pollution effectively enough. source-by-source taxation may not be adequate and lead to market distortions because the taxation system replicates market problems of hidden cross subsidies. the taxation system may be ineffective because the market is distorted. this can be remedied, in part, by tailoring taxation to meet the problem of differential sources and users. for example, domestic users might be treated separately from business users; rural and city communities may also be differentiated and, similarly, vulnerable groups from others. the operation of differential tax rates can result in effective outcomes. there are many variables, however, and it is often difficult to predict outcomes. lobbying is also likely to be keenly felt, especially bargaining between parties and individuals with government. the denning law journal 61 environmental taxes also require some degree of integration with the corporate frameworks that they apply to. the avoidance of over complication is essential and there is a need to ensure, for example, that larger enterprises are in a position to achieve overall control and guidance over their local subsidiaries or branches. this is a problem in terms of overall corporate governance and responsibility. the internal organisation in many local enterprises has to be able to accommodate general guidance from the “parent”. small enterprises have also to be such as to introduce marginal cost abatement of the pollution. careful consideration has to be given to the internal management of firms and their ability to address abatement costs and to ensure that appropriate and effective measures are in place, for example, policies on ensuring that the environment is brought to the attention of groups for example, recycling or reuse. environmental taxation is also subject to adverse consequences if those subject to the tax are able to respond in a more damaging way. waste taxation is a classic example where illegal dumping, which is difficult to prevent and regulate, can be the result. as a consequence, there is a loss of revenue and a failure to protect the environment that leads to greater social and economic cost through the need for detection and clean up. there is also a concern that, in general, taxation has a retributive effect. the burdens on the less advantaged may be disproportionately large when compared to the wealthy. this distributional effect is applicable to environmental taxation as surely as it is to any other taxation. it is also a matter of national concern as additional burdens claimed by industry increases the unit cost of production and impact on uk competitiveness. these are familiar arguments in the analysis of any taxation system and should be factored into the discussion of environmental taxation. in weighing up the arguments for and against environmental taxation there are some additional factors such as administration and enforcement costs that have to be considered. a pollution tax may require the measurement of emissions and making these accurate is important both for monitoring and enforcement. in general, a tax can be readily imposed upon any market transaction such as the sale of a final good or service. an environmental tax is different. there are no ready market transactions for emissions, pollution and deforestation or dumping. monitoring is difficult and often impossible to verify as it involves self-reporting. it often involves verification, inspection and monitoring and may be challenging. on the other hand, it is important that any driver to change behaviour and address environmental problems in the form of environmental taxation is an important element in future planning. assessing the use of environmental taxes is a matter of setting priorities and ensuring that revenue, as well as behavioural changes, is calibrated. environmental taxation in the uk 62 environmental taxes are perhaps at their most helpful in changing behaviour. the costs of direct regulation are much larger than taxation potentially making regulation relatively more expensive. tax rates, however, need to be finely adjusted when applied in relation to polluting substances. fine tuning and careful calculation of tax incentives is needed if environmental taxation is to make a difference. there is also considerable literature on the potential for environmental taxes to create unintended distortions within tax systems that often enhance pre-existing distortions. unintended consequences may include increased production costs that might be passed on through consumer prices, lowering the net wage of households. there may also be consequences for labour retention and company investment strategies. the mirrlees review has two specific recommendations relevant to environmental taxes. first, it recommended that a consistent price on carbon emissions is introduced through a combination of extended coverage of the euets and a consistent tax on other emission sources. this would include a tax on domestic gas consumption. the latter is hard to implement because of the escalating political problems caused by higher energy costs. the second recommendation is that the current tax on petrol and diesel might be replaced with a national system of congestion charging. 72 again, this may prove politically difficult to achieve. both recommendations have to be viewed within the broader agenda which is to take the uk towards a progressive neutral tax system, although there is some room for negotiation in terms of implementation: “where there is a strong case for deviating from neutrality – as where environmental externalities exist – such departures need to be much better designed and more clearly focused in the externality created than at present. this should involve consistent pricing of carbon and charges for motorists that reflect the main externality they cause, ie congestion”.73 conclusions environmental taxes are an important element in tackling climate change. under the climate change act 2008, the uk is pledged by 2050 to reduce carbon emission by at least 80% from 1990 levels. various caps in terms of carbon budgets have been introduced up to 2027. 72 see mark bowler smith and huigenia ostik (n 54) 500 regarding the central london congestion charge: in particular, the charge’s revenue raising capacity. 73 mirrlees (n 56) 353. the denning law journal 63 environmental taxation has an important part to play in achieving such goals. using the government’s own definition of environmental taxes, in 2014/15, uk environmental taxes were equivalent to 2.5% of gdp which is slightly above the eu average of 2.4%. in 2014/15, 72.9 % of all income from environmental taxes came from energy taxes, underlining the importance of energy in the taxation system. transport taxes mainly consist of taxes relating to the ownership and use of motor vehicles. in total, transport taxes contributed to 23.7% of all environmental tax revenue. motor vehicles contributed 47.6% of total transport taxes in 2014. businesses contributed 50% of total environmental revenue amounting to £20.8 billion. manufacturing was the largest contributor, followed by transportation and storage. households have also been a contributor of £20.4 billion. the ccl falls short of being a carbon tax and is, in effect, an energy tax, but, as indicated, the tax rate does not vary directly with the carbon content of fuels. in its own terms, it has made a contribution to achieving the uk climate change targets. estimates vary but savings of 12.8 million tonnes of carbon dioxide are calculated to have been made between 2001 from 2010.74 in that respect, this is a reduction of 20% in carbon emissions. the ccl is forecast to raise £2.3 billion in 2015/16. the ccl may also prove to have been a more effective form of regulation than other forms of traditional regulation. its critics suggest that it might have an adverse effect on business and industry, although this is hard to quantify or prove. the present government’s policy to reverse the exemption on qualifying renewables, such as electricity that is not generated from peat, fossil fuel and nuclear fuel, is an important policy shift. this is illustrative of how political sensibilities may influence policy. there are some anomalies in the uk system of environmental taxation. hm treasury’s decision to exclude transport taxes from environmental taxes is out of line with the ons approach and is inconsistent with the present government’s claim to be the “greenest government “on record. there is a strong case for defining transport taxes within environmental taxation. this is a reflection of their potential, as within the uk, they provide, currently, a greater share of tax revenue as part of gdp than the oecd average for the leading industrial countries. although, the uk is in the middle range when tax revenue from environmental taxes, is compared to eu member states. the bulk of the revenue from environmental taxation in the uk comes from the taxation related to climate change and 74 house of commons library briefing paper climate change levy: renewable energy (07283 26 august 2015). environmental taxation in the uk 64 transportation.75 a recent ifs report makes the point that the uk is “some way short of having a coherent system of environmental taxes to address imperatives around climate change and congestion”. 76 there is considerable potential for the uk to increase both total revenues and gdp in environmental taxes.77 there are strong political messages that attach to most forms of taxation, but environmental taxation has the potential to achieve sustainable environmental policies and to encourage good practice as well as income receipts. the need to raise revenue is greatest at times of financial downturns and the necessity to encourage sensible energy policies. it has been seen how environmental taxes are particularly vulnerable to political interference and this vulnerability is intrinsic to their worth, namely to both raise income and provide a forum for good environmental choices. globally, environmental taxation has not reached its full potential a century after it was first proposed by pigou. environmental taxation is a useful instrument for the delivery of environmental policies and the potential to facilitate changes in taxation policies. it may become a substitute for other taxes, particularly in areas connected with energy, transport and natural resources. the mirrlees review was a major step in the direction of a progressive, neutral tax system that included environmental taxes within a general umbrella of tax reform, but it has not been implemented. this is a missed opportunity as the recent findings of similar australian and new zealand tax reviews have shown: “… a shift towards consistent pricing of greenhouse gas emissions and the replacement of the current taxes on petrol and diesel with a national system of congestion charging”.78 the future success of environmental taxation depends on the full recognition of its potential to offer a “double dividend” providing a source of revenue as well as environmental protection, though as the mirrlees review points out “ it is not necessary for taxes on pollution to be welfare 75 house of commons: environmental audit committee sixth report budget and environmental taxes 2010-2012 (7 july 2011, col 1 hc 878). 76 ifs, the ifs green budget 2012 168. 77 see claudia dias soares, “earmarking revenue from environmentally related taxes” in janet e milne and mikael skou andersen, handbook of research on environmental taxation (eds) (n 1) 114-5. 78 see chris evans, “reflections on the mirrlees review: an australian perspective” (2011) 32(3) fiscal studies 387. the denning law journal 65 improving”. there remain some sceptical views that environmental taxes may increase the price of goods consumed somewhere in the economy, which will have a distorting effect on the use of such taxes. however, it is possible to redesign the tax system to lessen this effect with differential tax rates being used and the share of environmental taxation adjusted accordingly, but this does not guarantee an outcome. environmental taxation requires sound policy making 79 and more research on the implications for environmental taxation and how they may work. it is necessary for issues such as fairness and equity and the regressive or progressive nature of a tax to be more transparently made out and explained. tax law offers many levels of analysis, but the relative merits of different approaches to taxation are, with limited exceptions, under valued.80 79 see hm treasury, reforming the business energy efficiency tax landscape (london 2015). 80 the exception is the excellent analysis offered by john snape, the political economy of corporation tax (oxford 2011). brussels 1992 philadelphia 1787 the hon. lord mackenzie-stuart when some months ago in washington i first put pen to paper, i proposed to begin by saying that few people nowadays read john buchan. i have since been told that the richard hannay novels have been the subject of a television serial. this, of course, does not mean that people in fact read john buchan, so may i still remind you of the opening pages of the three hostages. there one of the characters describes a device used by the writer of thrillers. "let us", he says, "take three things a long way apart sayan old blind woman spinning in the western highlands, a bam in a norwegian saeter, and a little curiosity shop in north london ... not much connection between the three? you invent a connection simple enough if you have any imagination, and you weave all three into the yarn." in a sense, this will be my approach to take two apparently unrelated events and to see whether, like the writer of a mystery story, i can see by the exercise of a little imagination, persuade you that there is some logical connection between the two. my two events "brussels 1992" and "philadelphia 1787" have this in common. they have each been encapsulated into a symbol of four digits. the first indicates a target date fixed by the single european act, itself an odd title, which in 1987 amended the european community treaties; the other is a reminder that two hundred years have passed since the signing of the american constitution. both dates are in fact misleading. the european target date is 31st december 1992. to convey the sense of the new dawn that is to greet us, according to its publicists, "1993" would have been more accurate, ifless euphonious. as regards "1787" one must remember that that date is only a beginning. in the united states the constitutional celebrations are being phased, correctly, over a five year period from 1987 to 1992, since a corresponding period was required in the eighteenth century to hold the ratification debates in the thirteen states, events at least as important as the original signing, and for the introduction, by amendment, of the bill of rights, which, to the man in the street, is at the heart of the american constitution. "sometime president of the court of justice, european communities at luxembourg. the royal bank of scotland law lecture, oxford university, printed by arrangement with lord mackenzie-stuart and the royal bank of scotland. 131 the denning law journal first, then, "1992". to understand the meaning of this concept correctly, it is essential, i believe, to put it in its context. please forgive, therefore, some historical recapitulation. one starts, of course, with the schuman declaration of 9th may 1950 which proposed the placing of the coal and steel production of france and germany under a common governance. it is difficult, forty years later, to recapture the radical nature of that proposal. it was, in major part, a recognition of the dangers to the west taking visible shape in the soviet east. the proposal, moreover, involved an entirely fresh approach by germany's most implacable enemy to germany's future role in post-war europe. in tum, the schuman declaration gave rise to the coal and steel treaty in which france and germany were joined by italy and the benelux countries; this, also in its tum, was followed by the two treaties of rome, the economic treaty and euratom. cumulatively they swept into their net most forms of economic activity. from now on i speak of "the community" in the singular. it is now conventional wisdom to regret the absence from the beginning, of the united kingdom as a participant, a regret which, on the whole, i share; i sometimes wonder, however, whether in the end all was not for the best. when in the early 1970s the united kingdom finally negotiated membership of the european community the only real option was that of accepting the treaties as they stood. had the united kingdom participated in ~e original negotiations one can ask whether, in the light of current government pronouncements, the treaties would have been as effectively drafted as, by and large, they were. certainly, the economic treaty is a remarkable piece of work. i doubt whether we could produce its like today if we had to start from scratch. the economic treaty, i scarcely neea to remind you, sets out to create a "common market" although that phase is nowhere used. this, naturally, included the abolition of all internal customs duties and, as important, the abolition of all other impediments to trade, be they administrative or para-fiscal, which affected cross-border transactions. the treaty allowed workers to move freely in search of a job and, an essential adjunct, to take their acquired social security benefits with them. it freed the rendering of services across frontiers and gave to business the right freely to establish itself abroad. the treaty, however, did far more than this. it provided for an integrated market in agriculture in the 1950s the single most important economic activityin the original six. in the private sector the treaty prohibited cartels or any other form of concerted practice which distorted trade across borders. in the public sector the treaty set up machinery to control state aids which might affect the competitive position of producers in other states. as regards the third world it prescribed a common external policy and gave the community ample treaty-making powers to that end. all this was put in hand allowing for certain transition periods and was for the most part, operative by the late 1960s. in this achievement the court played a notable role. it affirmed expressly what 132 brussels 1992 philadelphia 1787 was only implicit in the treaties the primacy of community law; that is to say, that where a national rule and a community rule came into conflict the community rule had to prevail. it affirmed the unique quality of community law in that the latter could confer legally enforceable rights upon the individual citizens of the member states; this is in contrast to classic international law. it showed its readiness in an appropriate case to control the actings of the community institutions, introducing a series of tests of legality which have been in use ever since. it brought home to the member states the necessity that community rules had to be applied in an identical manner throughout the territory of the community. in this connection, i think often of my former colleague and mentor, judge donner of the netherlands; who used to say "the court never gives political decisions but from time to time it reminds politicians of what they have agreed to." nonetheless the momentum was lost. in the face of the financial and oil crises of the early 1970s the first flush of enthusiasm paled. the direct or self-executing provisions of the treaties had been largely implemented. what was left required subordinate legislation. the negotiating machinery became clogged and, contrary to the expectations of some, the admission of new member states did little to improve matters. as an example of this, it took something like fifteen years to {>roducea directive on the mutual recognition of medical qualifications. it is right, however, to stress since hard-won achievement is soon taken for granted that much was done. so we come to "1992". when the new commission assembled in january 1985 under the presidency of m. jacques delors they took stock of a number of outstanding problems and decided to give priority to a concerted programme to remove the remaining, and largely hidden, obstacles to intra-community trade. their plan was an ambitious one and had as its object nothing less than the removal of all frontier controls. the commission perceived, and indeed this had been obvious for a long time, that a great deal of subordinate legislation would be required and that unless the community decision-making procedure was altered to give a much greater place to majority voting their plans would have little chance of success. so in due course, and not without some initial opposition from the united kingdom, the treaties were amended by the single european act. the reason for that odd name is that originally three separate treaty documents had been envisaged. not only was completion of the common market to be dealt with there was also another agreement to bring environmental matters expressly under community supervision and, yet another, to give institutional form to the already exisiting political co-operation. all these matters were finally included in a single instrument hence the title. the single act defined what it called the "internal market". this concept is more limited than that of the "common market", as one deduces the meaning of that phrase from the treaty of rome read as a whole. as the single act puts it: 133 the denning law journal "the internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, and services and capital is ensured in accordance with the provisions of this treaty." note, in passing, two phrases. "without internal frontiers" this means what it says. with the completion of the internal market you should be no more aware that you are crossing a european frontier than you are aware that you are moving from virginia to maryland or, i am happy to say, you are already on the autoroute between antwerp and rotterdam. the other phrase is "in accordance with the provisions of this treaty." here i can foresee much argument and litigation. how many of the existing restrictions and limitations of the original treaty are to be carried forward? however, reduced to a single sentence, the single act lays down a timetable of action in order to liberate the "internal market" and provides that the necessary decisions can be taken by a majority vote. the commission, in their original proposals in 1985, reckoned that with a combination of political pressure and goodwill on the part of the council of ministers the legislative programme could be accomplished within the life-span of the commission i.e. by 31st devember 1992. this date was adopted by the single european act and" 1992" became the shorthand symbol the 'logo' for the whole operation. there is one additional feature of the single european act which i should mention. i referred, a moment ago, to the right under the original treaty of rome of member states to enact or retain measures which impeded the free movement of goods on certain specified grounds health and safety for example, public order or morality. to these specific exceptions which were well understood and which were strictly construed by the court, the single act added a further gound, viz. "the protection of the environment or the working environment". quite what these words mean remains to be seen. they were seized upon by certain commentators as representing a backward step, as an undermining of the community drqit acquis, and were, accordingly, as the authors of 1066 and all that would have said "a bad thing". i feel personally, that this viewis over-pessimistic. i should be astonished if the court were to retreat from its long-established position that any exception to the rule that goods are to move freely within the territory of the community fell to be narrowly interpreted. it may be that the words which i have quoted were introduced to achieve consensus over the introduction of majority voting. if so, i feel no real harm has been done. the expectations of the commission and of the member states concerning "1992" are high. we have been submerged by statistics one even talks of increasing the g.n.p. of europe by 6%. the enormous cecchini report of last year appears to bear this out. i am content to take matters on the footing that those whose knowledge of economics is far greater than mine regard the potential gains as being very worthwhile indeed. 134 brussels 1992 philadelphia 1787 as a lawyer, however, i would like to emphasise that" 1992" represents little new. in law, all that has been done is to improve the decision-making mechanisms of the treaty of rome in order that decisions may more easily be taken to bring about the results sought by the treaty in 1957. even the key date, 31st december 1992, does not, it seems to me, have binding force and have legal consequences as did the ending of the transition periods under the treaty of rome. the court, one day, may prove me wrong on this. nevertheless commonsense suggests that the full programme will not be accomplished by that date. i am not, of course, in any way seeking to belittle the positive step forward that "1992" represents on the political front. it is always most satisfactory to see political action concentrated on moving in a forward direction. in addition, the attendant publicity is plainly providing the business world with a fresh motivation to seize the opportunities which they were originally given as far as the united kingdom was concerned in 1973. i find it very surpising that so many people, who really ought to know better, seem to regard "1992" as something totally new and as such something to be feared or welcomed according to their standpoint. it is as if a large part of the business world, and i have in mind, particularly but far from exclusively,american business, is reacting as if for the first time the existence of the european communities had been brought to its attention. "1992" concerns only the "internal market" as narrowly defined by the single european act and to complete what had already been in place long since, not to create something de n(jvo. as i tried to say at the beginning, the treaty of rome seeks to do much more than to create an internal market. the treaty is also concerned with community relations with the external world, on the one hand, and on the other "the social dimension", to use a jargon phrase. the "social dimension" is to be found in the problems of the migrant worker; his right to have his familyto reside with him, and in the right of himself and his children to benefit, in the host country, from a variety of "social advantages" to use the words of the relevant community regulation. scores of cases in the european court reports demonstrate how important these questions are and how they have been resolved. to give another example of the "social dimension", while education as such remains the preserve of the member states, when education impinges upon the right of access to employment, and it does so increasingly, community law, as interpreted by the court, has something, i trust constructive, to say on the matter. moreover, the court has interpreted widely the notion of the rendering of services and thus greatly extended the application of that chapter of the treaty of rome. community law thus governs the right to travel abroad in the interest of health or education or even tourism and for the practitioner the right to travel freely in the exercise of his skills. what the "1992" programme has done is to concentrate attention upon the ultimate goals of the european community. against the background of renewed legislative activity a further debate is beginning. the opening salvos have been 135 the denning law journal fired. in saying this i have in mind the speech given by the prime minister at the college d' europe in bruges in september oflast year and the reply, although it was not expressed as such, by m. delors in his address to the european parliament in january, 1989. the latter was a particularly important occasion since it marked the beginning of m. delors' second tour as president of the commission. both speeches are important for the years ahead and both deserve close attention. apart from an unfortunate reference to an "identikit european personality" a totally imaginary beast the phrase should really have been excised in draft by her script-writer much of what the prime minister had to say had a certain immediate attraction. deeds, not words, was her theme. she rightly stressed britain's role as a leader in abolishing restrictions on capital movements, exchange control and coastal shipping. the central argument, however, took shape in her "first guiding principle", viz. a "willing and active co-operation between independent sovereign states". in various colourful phrases she reacted strongly agains the notion of central control: "to try to suppress nationhood and concentrate power at the centre of a european conglomerate would be highly damaging and would jeopardise the objectives we seek to achieve." i pass over in silence the effective pejorative use of the word "conglomerate" except to point out that the european commission is staffed by fewer persons than the ministry of defence or, as i recently heard sir roy denman say most strikingly, less than half the los angeles municipal administration. to continue, however, with the prime minister's text. it was epitomised in the much-quoted sentence: "we have not successfully rolled back the frontiers of the state in britain only to see them re-imposed at a european level with a european super-state exercising a new dominance from brussels." in short, she said, the object must be limited to "the removal of existing controls and a resolve that they should not be re-imposed in another form." these sentiments, as they were intended, create a responsive echo in most of us. i do not need to pray in aid the recent observation of the chancellor of the university of oxford that "the british react to the word 'sovereignty' with all the predictability of pavlov's dogs". i something much more simple. none of us likes constraint, least of all constraint from afar. m. delors' speech was cast in a very different mould although he matched mrs. thatcher's call for action. of" 1992" he had this to say: "decisions have already been taken on practically half the measures needed to create the single european market: and the route for the remainder has been clearly mapped out." 1. european diary 1977-1981(collins 1989), p.22. 136 brussels 1992 philadelphia 1787 there was what he regarded as a quantitive change: ... "there has been an immense leap forward with the harmonisation of technical regulations and standards, simple mutual recognition sometimes taking its place. substantial progress has been made on many fronts." m. oelors continued with his vision for the future: "europe will never be built if young people do not see it as a collective undertaking that will shape their future." in general, if imprecise, terms he stressed the need for research and protection of the environment. he then spoke of a "charter of fundamental social rights to give concrete form and life to the european mode of society."z above all, m. oelors stressed education: "co-operation between universities and firms under the comett programe and inter-university exchanges under the erasmus programme what better guarantee could there be of this newly-emerging european osmosis? how encouraging it is to see, as i have, the enthusiasm of students, teachers and businessmen who, as a result of the exchange schemes, have become active campaigners for a fifth freedom, the freedom to exchange ideas and experience." there was, of course, much more in m. oelors' address but it is impossible to precis that which is already succinct and in any case, i have probably quoted more than enough for my purpose. i said very recently that the two european voices were not irreconcilable. short-term projects can co-exist with a more long-term goal. i said then that i was reminded of hymns ancient and modern. compare newman's" ... i do not ask to see the distant scene; one step enough for me." with vaughan's magnificent invocation, "my soul there is a country far beyond the stars." both i observed were written to be sung in the same church. in case you think i have made a grievous oxford error may i remind you that 'lead kindly light' was written before cardinal newman transferred his allegiance to rome. nonetheless there is a notable divergence between the two voices. mrs. thatcher stresses the need for liberation, the sundering of shackles, the disappearance of regulation. leave aside for the moment the comment that even at his most laissez-faire adam smith recognised a place for state intervention he instances, if you remember, inter alia the taxing of spirits more harshly than ale in the interests of public health; leave aside the paradox that it requires a regulation to abolish a regulation and an even more complicated one if you only seek to amend -leave all this aside; although there is a passing reference to 'the quality of life'; mrs. thatcher's primary concern is for loss of sovereignty and a consequent loss of national identity. 2. it was presumably this idea which recently so infuriated the chancellor of the exchequer and led him to condemn what he called "social engineering". 137 the denning law journal m. delors, on the other hand, presents us with a vision of the future. righdy, in my view, whether or not you agree with his particular vision. the economic success of the european market avails us litde unless we have some vision of the europe we seek for the generations that follow us. . i am old enough to recall the sight of bombed london and the ashes of the ruhr. let it never be forgotten that whatever may be its shortcomings the existence of the european community has made sure that these days can never come again. all that we are doing now will be of little value if we cannot re-create for our children and our grandchildren the world of edmund burke, a world of which he said, "no citizen of europe could be altogether an exile in any part of it" and that "when a man travelled from his own country he never felt himself abroad". that surely must be our long-term aim. here may i digress for a moment? it has been said, and said correcdy, that the european community is a community founded upon law. community law is something sui generis. it is to be distinguished from classic intemationallaw which binds only the contracting states, in that community law confers rights (and may impose obligations) upon each and every one of the 320 million community citizens. that it is an effective system can be seen in the close and continued co-operation between the court of justice of the european communities and the national tribunals of all degrees in the member states. the result is there for those who see.kin the 50 or so substantial volumes of the european law reports and the even greater number of volumes of that remarkable publishing venture unique in europe the common market law reports. put crudely, law is about rule-making and rule-obeying. in community law, as i have already mentioned, one of the essential and basic rules, now for a long time accepted by the member states, with remarkably little difficulty all things considered, is that in a case of conflict between a national rule oflaw and a community rule the latter must prevail. this is sometimes referred to as the "supremacy" of community law, but i dislike the word "supremacy" as much as jean monnet disliked the word "supranational". the reason why the community rule must prevail is that the community cannot operate otherwise. let us suppose that in order to stabilise the market in some agricultural product a directive is enacted allowing member states to pay a subsidy of so much per tonne on specifically described goods in stock at the first of april. ruritania produces a domestic regulation making the subsidy payable on rather different goods and gives the date of payment as 1st march. the whole object of the regulation to stabilise the market is thereby defeated. there is here no question of community supremacy, of a command by the austenian superior, of liege-lord and lackey of de haut en bas or however you care to phrase it. the so-called supremacy of community law is no more than a rule founded on necessity. far from necessity knowing no law, necessity is the law. the community would fall to bits if it were otherwise. which, it may surprise you, leads me to "1787". in fact i need litde excuse for being led to the philadelphia convention of that year and the events which 138 brussels 1992 philadelphia 1787 preceded it and followed it. never in modern history have a free people been given, in little more than a decade, not one but three opportunities to design their destiny. nowhere in a country of little more than three million inhabitants has there been united such a constellati(;>nof talent. it is not my intention, however, to discourse at lar.ge on the making of the american constitution a spate of admirable new books have done that but to select one thread which seems to me to be relevant to what i have been trying to say so far. a minimum of background is, however, essential. the first constitution of the united states, the articles of confederation, was finally approved by the last state to do so, maryland, in march 1781. the war of independence was not yet over. indeed, the treaty of paris whereby great britain formally recognised the independence of the 13 colonies was not signed until 1783. in many ways the articles of confederation were the logical offspring of the declaration of independence although at one stage the order of events for example should confederation precede independence was a matter of bitter debate. all, at least, were agreed on three things independence, confederation and the need for foreign alliances. little was said about the machinery of government. indeed, article ii of the articles places in the forefront the 'sovereignty, freedom and independence' of the member states. paradoxically the constitutional viewpoint of the articles owed much to the picture of the british empire as seen through the eyes of the american colonists. the british parliament was not sovereign in the sense of being necessary for the good governance of the colonies they had for many years successfully managed to govern themselves. "not parliament but the king was the head and unifying force of the empire", to quote professor zuckart3 but the king was not an absolute monarch. it was the king and parliament in combination which were needed to do what the colonies could not satisfactorily do for themselves, in particular to see to their defence and to regulate their external trade. for the colonists the traditional view of sovereignty as dr. johnson put it, "in sovereignty there are no gradations" did not apply either in theory or as a matter of practical administration. what was required, so thought the newly emergent colonies, was a confederation which gave to congress no more than the powers which the colonists had been prepared to grant to their former monarch, essentially only those needed for the defence of the realm. funding was to be by levy upon the individual states who were the taxing authorities as, in the opinion of the former colonists, they alwayshad been. so limited in scope were the articles of confederation that they did not confer upon congress any power to regulate commerce, although the colonists, for the most part at least, had alwaysrecognised such a power in the british crown and had indeed benefitted from it. 3. the framing and ratijicatiol1 of ihe collstitlllion (macmillan, new york 1987), p.135. 139 the denning law journal the articles had scarcely been approved when their weakness became apparent. as has been succinctly put, again by professor zuckert: "lacking any enforcement powers the confederate government proved unable to carry out confederate policy. lacking a revenue power the articles government was constantly on the verge of bankruptcy. lacking the power to regulate commerce, the articles government stood by while some of the states waged commercial warfare against others.,,4 it was against this background that the constitutional convention met at philadelphia in may 1787. as might be expected in this bi-centenary period the meeting at philadelphia and the subsequent ratification debates have been the subject of voluminous re-appraisal. for me today, it is enough to say that the nature of the federation or confederation sought the words at that epoch were largely interchangeable varied greatly. for some it was enough that there should be a simple "society of societies" to use montesquieu's phrase. for others the states were to be replaced by a wholly national government. although he refrained from making a formal proposal to that effect, alexander hamilton went so far as to suggest that the best solution might be to extinguish state governments entirely. what, however, united federalist and anti-federalist alike was the recognition that independence alone would not suffice the emerging nation. a minimum of effective central control was required; congress had to be given powers of taxing, power to defend the nation, to enter into treaties, and to regulate commerce both external and inter-state. as a counter-part there had to be institutions capable of ensuring that constitutionally imposed limits were observed, particularly the limits between the domain of the state and the domain of central government. above all, institutionalised control was essential to ensure that such powers as the constitution conferred should not be subject to abuse. these requirements were brilliantly met by the constitution of 1787 when read along with the bill of rights amendments of 1791. that remarkable document remains virtually unchanged today. there have been only 16 subsequent amendments since 1791 and some of these were formal or have in their turn been superseded prohibition for example. what is the relevance to this to "1992"? first, may i avoid the semantic trap of trying to answer the question whether or not the european community is a federation. if, as has been suggested, the essence of a federation is to be found in the existence of a common foreign ministry, a common foreign policy and a common army the obvious answer is 'no' although we may be further along the road than we realise. after all, by the single european act we have :institutionalised political co-operation, the treaty of rome long ago provided for a common external commercial policy and, ireland and france (in theory at least) 4. federalism and the founding: toward a reinterpretation oj the constitutional conve/llionlthe review oj politics (1987), p.168. 140 brussels 1992 philadelphia 1787 apart, we are all members of n.a.t.o .. however i accept that in some quarters "federalism" is a dirty word. it is enough for my argument that the community is a "society of societies". the lesson of the years preceding 1787 is that you cannot have even the most skeletal "society of societies" without an effective central organisation endowed with the minimum necessary administrative and legislative powers. the more complex the society you seek to achieve, inevitably and regretfully if you will, the more complex and far-reaching those powers must become. this is a fact that the united states of america had to face two hundred years ago and which the members states of the european community have to face today. with this difference, moreover, that the problems of" 1992" are much more acute than the problems of 1787; while we, this side of the atlantic, too often overlook the considerable differences, geological and cultural, between the 13 colonies in the eighteenth century and which for that matter, persist to this day; they shared a predominantly agricultural and fishing economy and an anglo-saxon protestant background. life may have been hard but it was simpler and more leisurely. those engaged in giving effect to the "1992" programme have to contend with the pressures of a much more sophisticated and technologically orientated economy; they have to contend with diverse prejudices built up across the centuries; with the divisions which language still imposes. both" 1992" or as i would prefer to say the treaty of rome in its entirety and "1787" have this in common. both involve a partial surrender of sovereignty. it is more honest to say so clearly than to have recourse to euphemisms. in the twentieth century, absolute national sovereignty is a myth. every country has to give way before external constraints, political or contractual. let us not pretend that by joining the european community we have not transferred some of our national sovereignty to the community institutions. as i have tried to show such a transfer is inhen;nt in the whole concept, necessarily inherent as the philadelphia debate of 1787 has demonstrated. thus, and this is at the heart of what i have tried to say, it is not the existence of rule-making power in brussels that should concern us but the manner of its exercise, its modalitis to use an over-worked community jargon word. in each and every case the proper questions to be asked are, in the first place, do we need a rule at all? secondly, if so, who is to make the rule and, thirdly, what is to be its content? in the context of the european community there are certain basic principles to be kept in mind in answering these questions. they should be too obvious to require stating but experience often shows that they are forgotten. first, it must always be asked whether legislation is necessary at all or whether market forces and individual initiative will provide both the necessary momentum and balance. then it must be asked whether community action is necessary or whether, consistently with the objects of the community, the choice can be left to member states. in other words how essential is uniformity? finally, the content of any legislation must be clear as possible and of no greater width than is needed to 141 the denning law journal attain the end which is sought. that is to say, the doctrine of proportionality long applied by the court 'iq luxembourg in assessing the validity of a community regulation must always be heeded by the legislator. for all these reasons, it seems to me that the prime minister's resonant phrase about not having rolled back the frontiers of the state in britain only to see them imposed at a european level, while it may suffice for the hustings, is, at best, a dangerous simplification. after all, people frequently need rules, clear and precise rules, and, what is more, ask that they be introduced. i take two examples from the recent daily press. under the constraints imposed by a europen directive the electricity industry has at last been forced to initiate a vastly expensive programme to reduce sulphur dioxide emissions from coal fired power stations. the directive, however, does not deal with coke fired stations. according to the press reports the inhabitants of monkton near jarrow are lobbying the commission in brussels to extend the ambit of the directive to repair this omission. not for them is there any gain derived from rolling back the frontiers of the state. they are actively seeking to have restraints imposed at european level. not so dramatic, perhaps, but of concern to many, is the reaction of the council for the protection of rural england to a proposed directive dealing with the countryside and wildlife preservation. the comment of the minister of state at the department of the environment, again as reported in the press, was that "the brussels bureaucrat should be added to the official pest list." good knock-about stuff to get an easy headline, i suppose, but the council for the protection of rural england were not amused. they described the minister's hostile attitude as hard to believe. for them at least the need for rules was clear and, plainly, they at least had no objection to their being imposed by brussels. for the last time i return again to philadelphia in that hot summer of 1787. the principal meeting room in independence hall is not large and must have been unpleasantly stuffy when all fifty or so of the delegates and staff were present. to read again, however, the pages of farrand's records is to listen to a debate of the highest order; a debate correctly addressing itself to the fundamental problems of good government where power should reside, how it should be exercised, how it should be controlled. these are also the problems and the challenge presented by the european treaties as a whole and by their newest offspring" 1992". in no way do i suggest that the problems of today call for the same solutions as those found in 1787. nonetheless, and i say it once more, the american experience teaches us that even the loosest of confederations, even the most rudimentary 'society of societies' cannot function without certain fundamental powers being located at the centre. pace the prime minister, the european community demands more of its members than "willing and active co-operation between independent states". the latter approach is to ignore the express terms of the european treaties and can only lead to an impasse or, worse, to anarchy in the functioning of the community. the duty of the member states of the european 142 brussels 1992 philadelphia 1787 community is not to castrate the community institutions but to make sure that they function intelligently and well; this, in a nut-shell, is the american lesson. i began with john buchan's three hostages. let me end there. the character whom i quoted at the beginning continues to the effect that the reader is pleased with the 'ingenuity of the solution, for he doesn't realise that the author fixed upon the solution first and then invented a problem to suit it.' unlike the hypothetical author i hope that you feel i have not just been exercising my ingenuity in inventing a link between" 1992" and" 1787" but that the connection is truly evident. 143 lord denning and open government d. g. t. williams '-* in a judgment delivered less than a week before his retirement, lord denning spoke of the current demand for "open government" adding that it is something which "is voiced mainly by newsmen and critics and oppositions." i the tone of his remarks is at first sight surprising: for he, more than anyone else, had given judicial support for greater openness in government at alllcvc\s. this support had been evident in his ex officio work as chairman of the advisory council on public records, in several aspects of administrative law, in his response to purported extensions of criminal contempt of court, and most notably in his contribution to the developing law of "crown privilege" or public interest immunity. lord denning's pronouncements in such areas do not, to employ the words of one academic commentator, provide "a body of doctrine reflecting a coherent and consistent philosophy." 2 but it is difficult for any judge to develop a coherent and consistent philosophy in the volatile field of constitutional and administrative law. the institutions vary, the statutory contexts differ, and it is misleading in most circumstances to rely upon a straightforward regard for precedent. there are well-established assumptions or presumptions or general concepts, of course, but a critical component of a judge's approach on public law must be the instinctive reaction to events. james bradley thayer, writing about dicey, once spoke of the "strange contrivances" of the english constitution as "a marvellous outcome of instinct, of a singular sense and apprehension, feeling its sure way over centuries";3 and dicey himself, writing about federalism, described federal notions as "absolutely foreign to the historical and, so to speak, instinctive policy of english constitutionalists." 4 "rouse ball professor of english law and president of wolfson college, university of cambridge. i. air canada v. secrelary of slale for trade (no.2) [1983] 1 all e.r. 161, 172. 2. j. a. g. griffith, in an article ("a judge who was always his own man") written after the announcement of lord denning's impending resignation in 1982: the observer, 30 may 1982, at p. 8. on lord denning's resignation, see also hugo young ("why denning is irreplaceable') in the slind(jy times, 30 may 1982, at p. 15 and a leading article ("end of the denning era") in the times, 30 july 1982, at p. ii. a formal farewell ceremony in the court of appeal is reported in the times, 31 july 1982, at p. 2. 3. james bradley thayer, "dicey's law of the english constitution" (originally published 1885), reproduced in thayer, legal essays (1908), pp. 191-206 at p. 191. 4. a. v. dicey, bllrodllclion 10 ihe sllid), oj ihe colislillllion, 8th ed. (1915), at xc. 117 the denning law journal lord denning readily applied the historical and instinctive policy of english constitutionalists, working out the constitution "on purely practical grounds based on our own experience and on our own needs." 5 historical references abound in his judgments, with comments about distinguished lawyers of the past,6 about real or fictional cases of the past,? about famous sites or events,s and about his own experience.9 he was fascinated by historical by-roads, as in his account of the "delightful little treaty" of -1794 with the micmacs of new brunswick a treaty in which the king of england promised an indian king and his brother that he would provide for them and for the future generation "so long as the sun rises and river flows." 10 from his sense of the continuity of constitutional guidelines in english history, lord denning developed an instinctive appreciation of the balancing process inheren~ in matters of constitutional and administrative law. his historical references, obvious as many of them might seem, were utilised to reinforce both his constitutional assumptions of individual freedom and his view of the competing, changing demands of government and society. his constitutional assumptions favoured ordinary people ranging from "men who work at the smithy shoeing horses, at the mill grinding corn, or at the saw mills cutting up wood" ii to "self-employed and small shopkeepers, good men and true who pay 5. lord justice denning, "the independence of the judges" (presidential address of the holdsworth club of the faculty of law, university of birmingham, delivered on 16june 1950), reproduced in the lawyer and juslice (ed. brian w. harvey) (1978), pp. 55, 56. see geoffrey marshall, conslilulional theory (j 97 i), at pp. 86-90 (relating to lord denning's romanes lecture of 1959, from precedmllo precedml). 6. sir edward coke is often referred to (see, e.g., cimlamondv. brilishairportsaulhority [1980] 2 all e.r. 368, 370 linking the six carpenters to six car-hire drivers) and so are less well-known figures such as macmorron k.c. (referred to as"the acknowledged expert of his time on local government law") in r. v. clerk 10 lancashire police commillee, ex p. hook [1980] 2 all e.r. 353, 359. 7. the general warrant cases are given considerable prominence, not only in chic fashions (west wales) ltd. v.jones [1968] i all e.r. 229, 233 and ghani v.jones [1969] 3 all e.r. 1700,1703 but also in r. v. inland revenue commissioners, ex p. rossminsler ltd. [1979] 3 all e.r. 385, 398 (where lord denning compared the "military style operation" there to "that saturday, 30th april 1763, when the secretary of state issued a general warrant by which he authorised the king's messengers to arrest john wilkes and seize all his books and papers"). a fictional case injected into a comment about legal delays wasjarndycev.jarndyce from bleak house (see bulles gas and oil co. v. hammer (no.3) [1980] 3 all e.r. 475, 480). 8. see, for instance, lord denning's remarks about the pilgrim's way (haymn v. ke,u county council [1978] 2 all e.r. 97, 99-100), about george stephenson's engine l(111m v. gul/oil refining lid. [1979] 3 all e.r. 1008,1012) and about the peterloo massacre (hubbardv. pill [1975] 3 all e.r. 1, 10). 9. in citmamo/ld v. brilish airporls aulhority [1980] 2 all e.r. 368, 373 lord denning recalled the days when he drafted byelaws for the southern railway company; in r. v. greater london coullcil,ex p. blackbum [1976] 3 all e.r. 184, 186 he referred to the obscene publications act 1959: "i remember it well. i attended the debates, and took part." 1o. r. v. secrelary of stale jor foreign and commonwealth affairs, exp. indian associatio/iofa iberia [1982] 2 all e.r. 118, 124. ii. fawcell properlies ltd. v. buckingham collll1ycouncil [1960] 3 w.l.r. 831, 852-853 (h.l.). 12. r. v. bdand revenue commissio/lers, ex p. n.f.s.s.b. [1980] 2 all e.r. 378, 388. 118 lord denning and open government their taxes" 13 in their bewilderment with big organisations, governmental or otherwise; they favoured local self-government (which he saw as "an important part of our constitution" 13); they favoured freedom of speech, freedom of assembly, personal freedom, freedom of property, and contemporary ideas about privacy and the right to work.14 these and other assumptions are explicit or implicit in countless judgments delivered by lord denning from 1944 to 1982; but they were not applied in a vacuum and lord denning has recognised, as all judges in constitutional matters (not least those in the supreme court of the united statesls) have to recognise, that some assumptions may have to be displaced from time to time. in the area of public order, for instance, lord denning has eloquently spoken of "the right to meet together, to go in procession, to demonstrate and to protest on matters of public concern" as something which must be done "peaceably and in good order without threats or incitement to violence or obstruction to traffic." 16 the integrity of a man's home, based on chatham's claim that the "poorest man may in his cottage bid defiance to all the forces of the crown", is asserted: but exceptions are allowed in the public interest.17 open justice has to be measured against respect for privacy and confidentiality;18freedom of expression should not become a licence to publish pornography; 19freedom of association (especially the freedom to form trade unions) must be assessed against other values in society;2o and personal freedom must give way to a police officer's reasonable powers of restraint.21 the manner in which the balance was tilted was frequently controversial, so much so that one writer has described lord denning's championship of 'freedom' as "positively perverse",22 and few would wish to 13. norwich city council v. secretary of state for the environmmt [1982] 1 all e.r. 737, 745. see also, webb v. minister of housing and local governmmt [1965] 2 all e.r. 193, 203. 14. see generally, sir alfred denning, freedom tmder the law (hamlyn lectures, 1949); sir alfred denning, the road /0 justice (1955); lord denning, the due process of law (1980); lord denning, what next in the law? (1982). 15. see archibald cox, the role of the supreme court in american government (the chichele lectures, 1975) (1976). 16. hubbard v. pitt [1975] 3 all e.r. 1, 10. see also, kent v.metropolitan police commissioner, times l.r. for 14 may 1981 (the times, 15 may 1981, at p. 12) and r. v. chief constable of the devon alld cornwall constabulary, ex p. g.e.g.b. [1981j 3 all e.r. 826, 832. 17. chic fashiolls (west wales) ltd. v.jones [1968] 1 all e.r. 229, 233. see also, ghani v.jones [1969] 3 all e.r. 1700, 1705, where lord denning spoke of "the inierest of society at large in finding out wrongdoers and repressing crime." 18. home office v. hannan [1981j2 all e.r. 349, 363-364. 19. r. v. metropolitan police commissioner, ex p. blackburn (no.3) [1973] 1 all e.r. 324, 327-328; r. v. greater loniion council, ex p. blackburn [1976j 3 all e.r. 184, 188; r. v. metropolitan police commissioner, ex p. blackburn, the times, times l.r. for 6 march 1980 (the times, 7 march 1980, at p. 10). in the house of lords in 1959 (h.l., vol. 216, c. 503, 2june 1959) lord denning stated: "to write literature is the proper use of freedom: to indulge in pornography is the abuse of it." 20. for a statement of lord denning's views on trade union legislation, see bn'tish broadcasting corporation v. hearn [1978] 1 all e.r. 111, 115-116. 21. dal/ison v. caffery [1965] 1 qb. 348, 367. 22. patricia hewitt, the abuse of power (civil liberties in the united kingdom) (1982), at p. 243. see also, j. a. g. griffith, the politics of the judiciary, 3rd ed. (1985). 119 the denning law journal defend the former master of the rolls on all his rulings. indeed lord denning himself has confessed to second thoughts.23 one of the most troublesome balancing exercises occurs where issues of national security are at stake. the difficulties and, indeed, the temptation to tilt the balance in favour of the interests of the state24 have been explored at length, both in special inquiries and in the courts of law; and the legal complexities were explored by m. l. friedland in a study prepared for the mcdonald commission in canada a few years ago.zs judicial decisions since lord denning's retirement are a reminder of the difficulties.26 during his judicial career, lord denning, adopting what he took to be parliament's intention, gave considerable weight to arguments of national security in matters of deportation;27 and a background of security doubtless made him unsympathetic in litigation over journalists' sources of information relating to the vassall inquiry.28 the vassall inquiry was to be followed, incidentally, by lord denning's investigation of the circumstances leading to the resignation of the secretary of state for war. this investigation, the report of which appeared in september 1963,29 involved lord denning in effect acting "as detective, solicitor, counsel and judge"; and, given its "serious defects in procedure", the public acceptance of the report may according to the salmon commission "be regarded as a brilliant exception to what would normally occur when an inquiry is carried out under such conditions." 30 it might be added that hitherto few inquiries into matters of national security in this country have conformed with normal standards of procedure or publicity; and lord denning's extra-judicial venture was no exception. 23. see lord denning, what next in the law? (1982), at pp. 246-252, with reference to british steel corporation v. granada [1981] i all e.r. 417. 24. statement on the findings of the conference of privy councillors on security, cmd. 9715 of 1956, para. 16. 25. see m. l. friedland, national security: the legal dimensions (1979). see also, j. ll. j. edwards, ministerial responsibility for national secrm'ty (1980) and c. e. s. franks, parlial1le1ltand security matle" (1979). the 3-volume report of the mcdona]d commission of inquiry concerning certain activities of the royal canadian mounted police appeared in 1981. see, more recently, the report of the special comminee of the senate on the canadian security intelligence service (delicate balance: a security intelligence service in a democratic society) (onawa, november 1983). 26. see secretary of state for defence v. guardian newspapm ltd. [1984] ] all e.r. 453, (c.a.) (and the comments on national security at 458, 460 and 462); r. v. secretary of state jor the foreign and commonwealth office, exp. the co/meilof civil service unions, times l.r. for 6 august 1984 (the times, 7 august 1984, at p. 15). 27. see r. v. brixtol/ prison (govenlor), expo sob/ell [196213 all e.r. 641, 659 and r. v. secretary of state for the home departmellt, ex p. hosellball [1977] 3 all f.r. 452, 457. 28. attonu;y-general v. mulholland and foster [1963] 1 all e.r. 767. see generally, c. j. miller, contempt of court (1976), at pp. 58-61. the vassall inquiry was conducted by a tribunal of inquiry (under viscount radcliffe): its report was published in april 1963 (cmnd. 2009). 29. lord denning's report, cmnd. 2152 of 1963. lord denning referred to the investigation in r. v. clerk to lli1/cashire police committee, ex p. hook [1980] 2 all e.r. 353, 356 and in lonrho ltd. v. shell petroleum ltd. times l.r. for 12 march 1980 (the times, 13 march 1980, at p. 18). 30. report of the royal commission into tribunals of inquiry, cmnd. 312] of 1966, para. 21. see also, sir cyril salmon, tribltllals of iilqui,)' (lionel cohen lectures at the hebrew university of jerusalem, 14th series, 1967), at pp. 13-15. 120 lord denning and open government from 1962, when he became master of the rolls, lord denning became involved with the wider sphere of openness in government. his chairmanship of the advisory council on public records brought him into regular contact with the operation of what was then the fifty-year (and was soon to become the thirty-year) rule.31 the wilson committee on modern public records commented in 1981 on the initiative taken by the advisory council (under lord denning) in seeking a shortening of the basic closed period, and it was pointed out that the council's views "have also carried weight in urging that 75 years should be the normal maximum closure for personally sensitive papers." 32 perhaps his contact with the issues of closed files influenced lord denning's judicial approach in a case concerned with a local councillor's right of access to certain papers.33 lord denning's judicial approach towards all matters of secrecy was dictated by his own firm belief in freedom of the press, by his rejection of excessive assertions of power by governmental and other bodies, and by his determination to avoid technicalities and seek solutions on a case-by-case basis. where his attitude differed it was either in deference to parliamentary wishes (for lord denning, despite arguments about his style of statutory interpretation,34 regarded parliamentary sovereignty as "fundamental in our constitution" 35) or in response to conduct of which he disapproved. varying expressions of disapproval can be found over the securing or handling of confidential documents in particular circumstances.36 but it would be unfortunate if an assessment of lord denning's contribution to open government were to be significantly affected by a handful of 31. see report of the (grigg) committee on departmental records, cmnd. 9163 of 1954, paras. 125-128 (on the responsibility of the master of the rolls for public records); annual reports of the advisory council on public records (a body established by the public records act 1958); report of the (wilson) committee on modern public records (selection and access), cmnd. 8204 of 1981, paras. 292-328; and the government's response to the wilson report, modern public records, cmnd. 8531 of 1982, paras. 46-48. in an appendix to the 24th report of the annual council (hcio, 29 june 1983), a letter from lord denning and his colleagues (to the lord chancellor) comments on the wilson report and the government response. 32. cmnd. 8204, para. 303. see generally, colin holmes, "government files and privileged access", social his/ory vi. (1981), pp. 333-350 and margaret gowing, "modern public records: selection and access. the report of 'the wilson committee"', social his/or)' v. (1981), pp. 351-357. the well-documented article by colin holmes is, in his own words, a "brief excursion into the complex, chaotic and variable world of government files and the obscure and shadowy world of privileged access." see also, d. g. 1'. williams, "official secrecy in england", (1968) 3 federal l.r. 20, pp. 47-50. 33. r. v. clerk /0 larlcashire policeau/llori(y, ex p. hook [1980j 2 all e.r. 353 (dissenting judgment). see the later case of r. v. bimlingham ciry dis/rict council, ex p. 0, times l.r. for 23 february 1982 (the times, 23 february 1982, at p. 23). 34. see dupor/ s/eels lid. v. sirs [198011 all e.r. 529 (ca. and i-ll.) and, generally, lord denning, the disciplille of law (1979), ch. 2. 35. smi/n v. inner lorldolieducatioll authority [197811 all e.r. 411, 415. 36. bri/ish steel corpora/iorl v. granada television ltd. [1981] i all e.r. 417, 441-442; /-lome office v. harman [1981] 2 all e.r. 349, 363-364; and air canada v. secre/ai)' of slate for trade (no.2) [198311 all e.r. 151, 180-181. for a hint of disapproval of cheque-book journalism, see allowa)' v. phillips ([nspec/oroftaxes) [1980] 3 all e.r. 138, 143. 121 the denning law journal decisions where, rightly or wrongly, he allowed his judgments to be coloured by such sentiments. his belief in a free press has often been recorded, and in the granada case lord denning asserted that investigative journalism "has proved itself as a valuable adjunct of the freedom of the press. notably in the watergate exposure in the united states and the poulson exposure in this country.,,37 lord denning's vigorous approach to contempt of court is a classic reminder of his anxiety that investigations by the press should not be artificially hindered. an attempt to revitalise the law on scandalizing the court was brushed aside;38 he led the court of appeal in an unsuccessful attempt to discharge the injunction in the thalidomide case;39 the house of lords ultimately endorsed his instinctive reluctance tq extend the sanctions of contempt of court to the area of administrative tribunals;40 and the new time-limits in the contempt of court act 1981 help substantially to avoid the evils of "gagging writs" to which lord denning drew attention on more than one occasion.4\ lord denning's rejection of abuse of power is central to his influential role in the development of what he termed a "well-organised and comprehensive" system of adminstrative law.42 his judicial contributions can be seen in such areas as error of law on the face of the record, jurisdictional error, and natural justice. in the application of the principles of natural justice to the operation of big public local inquiries, lord denning's views (again doubtless influenced by the background of access to information) were to be rejected by a majority of the house of lords; but he articulated the views of many people in his assertion that there had "been a deplorable loss of confidence in these inquiries ... we must use our authority to see that inquiries are conducted fairly, in accordance with the requirements of natural justice."43 in the control of discretionary power, however, lord denning achieved some notable successes in the courts during the 1970s;44 though, as we shall see, his refusal to concede unfettered discretion even to ministers of the crown had already been demonstrated in his approach to governmental secrecy. 37. [1981] 1 all e.r. 417, 441. see the attitudes to investigative journalism adopted by lord wilberforce in the house of lords in the grallatta case ([1981] 1 all e.r. 417, 455) and by the court of appeal in blackshaw v. lord [1983] 2 all e.r. 311, 325, 336, 339. 38. r. v. metropolitan police commissioller, ex p. blackburn (no.2) [1968] 2 qb. iso. 39. altornry-general v. times newspapers ltd. [1973] i all e.r. 815. see now the contempt of court act 1981, s. 5 ("discussion of public affairs"). see, on the thalidomide decision in the court of appeal, a leading article ("in the public interest") in the times, 17 february 1973, at p. is: this stated that it "is good that the court of appeal has acknowledged that there may be occasions when the right to public comment is of supreme value." see generally, harold evans, good times, bad times (1984), ch. 4. 40. allornry-general v. british broadcasting corporatioll [1979] 3 all e.r. 45. 41. wallersteiner v. moir [1974] 3 all e.r. 217, 230. 42. o'reilly v. mackman [1982] 3 all e.r. 680,691. 43. the judgment of the court of appeal is discussed in peter levin, "public inquiries: the need for natural justice", new society, vol. 50 (is november 1979), at pp. 371-372. the decision of the house of lords is reported as bushell v. secretary of state for the environment [1981] a.c. 75. 44. see generally, lord denning, the discipline of law (1979), part two ("misuse of ministerial powers"); h. w. r. wade, constill/tiollal fll1ldamentals (hamlyn lectures, 1980), ch. 4. 122 lord denning and open government a rejection of technicalities save, perhaps, when technicalities can be used to bolster individual rights or freedoms45 is frequently found in lord denning's judgments.46 this approach is found from the outset in his attitude towards administrative law,47 and he recognised earlier than most "that adminstrative law is in a phase of active development and that the judges will adapt the rules ... to protect the rule of law." 48 lord denning's application of rules of locus standi4<j and, more broadly, of natural justice50 depends very much on a case-by-case technique through which he is able to adapt the rules to protect the rule oflaw. a similar technique was reflected in his long struggle to overturn the rigid principles which governed the law of crown privilege until about twenty years ago. it is now taken for granted that the government does not have an unfettered control over the disclosure of documents in a court of law.51 the break from the decision of the house of lords in duncan v. cammell laird fs co., ltd,52 was secured largely through the efforts of lord denning (soon after he became master of the rolls), aided and abetted initially by salmon l.j. and harman l.j .. as recently as 1956 a former law officer had said in the house of commons that "one cannot delegate to a judge the decision whether or not crown privilege should be given without involving him in matters of public policy which are outside his ambit and in which it is most undesirable to involve him.,,53 in three influential decisions the court of appeal began to dismantle the defences of crown privilege. in the first of these, merricks v. nott-bower, lord denning said that he did not believe that lord simon (in the cammell laird case) envisaged claims of crown privilege based automatically on the phrase "for the proper functioning of the public service" in order to make documents taboo. 54 in the second, re grosvenor hotel, london (no.2), lord denning truly had the bit between his teeth, reminding us that "it is the judges who are the guardians of justice in this land: and if they are to fulfil their trust, they must be able to call on the minister to put forward his reasons so as to see if they outweigh the interests of justice." 55 in the course of his judgment he criticised the cammell laird decision and drew inspiration from 45. see r. v. minisler of agricullure and fisheries, ex p. graham; r. \'. agricuijural laml tribunal (smah westem province), ex p. bellne)' 119551 2 qb. 140, 167. 46. see, e.g., r. v. brighlon gaming licellsillg commillee, ex p. coledale lid. 119781 3 all e.r. 897, 899; sheffield cily council v. graingers wines lid. [1978] 2 all e.r. 70, 72; lin'elock \'. minisler of transporl, tillles l.r. for 11 june 1980 (the times, 12 june 1980, at p. 9). 47. see sir alfred denning, freedom under the law (hamlyn lectures 1949), at p. 126; lord denning, "the way of an iconoclast", (1959) 5 ].s.p. t.l. 77, at p. 88 f[ 48. r. v. crown courl al knighlsbridge, ex p. iliiemalional sporlillg club (londoll) lid. 119811 3 all e.r. 417, 423, per griffiths l.j. 49. see, e.g., r. v. horsham j.j., ex p. farquharson [1982] 2 all e.r. 269, 282. so. see, e.g., r. v. secrelalj' of slale fur ihe eii1'irrmlllel1l,ex p. salililio 119811 2 :\11 e.r. 897, 919 and payne v: lord harris ofgreel1wich [19811 2 all e.r. 842, 845. 5 i. for recent accounts of the law, see p. p. craig, admillislraliu law (1983), ch. 18; john bell, polily argulllel1ts ill judicial decisiolls (1983), ch. 4. 52. [1942) a.c. 624. 53. hc, vol. 558, cc. 962-963, 26 october 1956 (sir lynn cngoed-thomas qc.). 54. [1964] 1 all e.r. 7]7, 722. 55. [19641 3 all e.r. 354, 362. 123 the denning law journal developments elsewhere in the commonwealth. later on, in the third case (wednesbury corporation v. minister of housing and local guvernment), he spoke of the "overwhelming importance" attached by government departments "to ensuring secrecy for their own documents", and he deplored a situation where the courts are (in the words of master jacob) to "be led through a kind of ritual dance, decorously receiving the minister's certificate, and bowing to its authority.,,56 what lord denning was urging at that stage was a requirement that the minister should justify his claims of privilege, a power on the part of the courts to inspect the documents privately, and a power ultimately to order disclosure. he felt that a minister's claim would rarely be overruled, especially where the objection was related to the actual contents of a document. even so the views of the master of the rolls and his colleagues had not been tested in the house of lords; and, when lord denning sat in another crown privilege case, with two different colleagues, he found himself in a minority. the new case was conway v. rimmer.57 lord denning took his stand on the earlier "trilogy of cases" holding "that the court has a residual power in a proper case to override the objection of a minister." 58 the majority of judges, however, felt bound by authority to disagree with athos m.r., porthos and aramis l.jj.;59 and it remained for salmon l.j. (in his capacity as either porthos or aramis) to suggest extra-judicially that the majority view "may be considered a triumph for sound orthodox principle over heresy or it may be condemned as retrograde, reactionary, and wrong." 60 in the event the house of lords, freed from the shackles of binding precedent, reinstated the views of the three musketeers,61 thus establishing "the vital principle ... that the last word lies not with a minister but with the courts, and that is the place for it." 62 the battle was not over yet. in conway v. rimmer the house of lords had accepted lord denning's view that the courts had a residual authority to question claims of crown privilege. not until bunnah oil co. ltd. v. bank of england63 were the new principles to be considered by appellate courts in respect of policy documents of the central government, and once again lord denning instinctively anticipated (in a dissenting judgment) the approach to be adopted by a majority of the house of lords.64 there followed the decision of mcneill j. in williams v. 56. [196511 all e.r. 186, 190. 57. [1967] 2 all e.r. 1260. 58. ibid., at 1262. 59. ibid., at 1273 (russell l.j.). 60. the times, 4 july 1967, at p. 10, reporting salmon l.j.'s speech to justice on "the bench as the last bulwark of individual liberty." in the course of his address salmon l.j. said: "for my part i do not mind being compared with the three ~\'lusketeers. they certainly had independence and courage, if not morc besides." 61. col/wa)' v. rimmer [19681 a.c. 910. for the subsequent trial of the action, which was lost by the plaintiff, s'ee the times, 17 december 1969, at p. 4. 62. the times (a leading article), 29 february 1968, at p. ii. 63. [19791 3 all e.r. 700, affirming the court of appeal at [19791 2 all e.r. 461. 64. see case-]\;ote at [1980j c.l.j., pp. 1-5. 124 lord denning and open government home office65 and then the apparent backtracking in canada v. secretary ofstatejor trade (no.2). 66 despite his indignation at the use of documents disclosed in the williams litigation, however, lord denning took full advantage in air canada to explain the evolution of crown privilege (or public interest immunity) even acknowledging the house of lords as a "relief force" which came to rescue the three musketeers;67 and he re-emphasised that, in considering a minister's certificate claiming "crown privilege", the scales are tilted in favour of the minister.68 this brings us back to the idea of balance. at the start of his campaign he recognised the special authority which must be attached to a minister's claims based on the public interest. in this he was presumably recognising both the political accountability of ministers through the doctrine of ministerial responsibility and the problems of justiciability which would face the courts in adjudicating on some types of claim. at no stage is there any suggestion that lord denning had abandoned a personal preference for disclosure. it might be recalled that, in the early stages of the litigation over the crossman diaries,69 counsel for the attorney-general used the analogy of crown privilege to justify in part his application for an interim injunction. the interim injunction was granted at first instance,70 but it was immediately lifted on appeal to a court of appeal presided over by lord denning.7] in a leading article which ended with the words, "thank god for lord denning", the times commented that the "first purpose of a free press, its chief virtue, is that people should be informed of the government of their country. democracy depends upon it." 72 when lord denning, in the dimbleby lecture in 1980,73 called for judicial review of parliamentary legislation, his arguments were gently thrust aside by some commentators.74 at one point in his lecture he mentioned that the judges in this country are, just as judges are in the united states, the guardians of our constitution. those who would reject his claim, especially on the ground that judges should not be involved in political matters,75 would do well to recall that judges are often uniquely equipped to identify areas of vulnerability in the 65. [1981j i all e.r. lis!. 66. [1983j] all e.r. 16!. 67. ibid., at 179. 68. ibid. on the "balancing" process, see arias v. commissioller oj police ojthe metropolis, times l.r. for ii august 1984 (the times, i august 1984, at p. 10). 69. ai/onley-gelleral v. jollathall cape ltd. [19761 qb. 752. 70. ai/onley-gelleral v. times newspapers ltd., times l.r. for 26 june 1975 (the times, 27 june 1975, at p.io). 7!. times l.r. for 27 june 1975 (the times, 28 june 1975, at p. 4). 72. the times, 28 june 1975, at p. 13. see leading article in sullday times, 29 june 1975, at p. 12; hugo young, the crossmall affair (1976), at pp. 44-46. 73. for a summary of the lecture, see the times, 21 november 1980, at p. 4. 74. see, e.g., john griffith in 7lle observer, 23 november 1980, at p. 12 ("up to a point, lord denning"). 75. see generally, d. g. t. williams, "public interest in the courts" in staatkulldig jaarboek 1983-1984 (leidcn 1983), at pp. 117-133. 125 the denning law journal constitution. european judges are already able to do so by virtue of the european convention on human rights, and the implications of the convention have recently been spelt out by anthony lester qe..76 english judges, encouraged more and more by the convention and its application, are nowadays less inhibited in registering protests even when they cannot act.77 lord denning was astute at combining protest and action; and to the end of his career over the use of juries at controversial coroners' inquests,78 over the practice of jury-vetting,79 and over much else he reacted, as if (in thayer's words) through "a marvellous outcome of instinct", with assurance and authority. lord denning's views have not always prevailed (even in the long term), and he himself has urged that he should be judged "warts and all". he added (on the occasion of his retirement): "there are lots of roughnesses, warts and pimples; i know them perfectly well, and so does the house of lords." 80 he has often been accused of going beyond his proper judicial role in the utilisation of his own moral, political and religious views.8) yet lord denning has taken the lead, perhaps as a late endorsement of sir edward coke's dictum in dr bonham's case,82 in tapping the resources of the common law in aid of contemporary needs. it is not without significance in this regard that cooke j. of the court of appeal of new zealand, has recently suggested judicially that it would not be within the lawful powers of parliament (in new zealand) to authorise torture in questioning by officials. "some common law rights presumably lie so deep that even parliament could not override them", said cooke j.83 judges might, after all, be the guardians of the constitution. the emphasis on open government has been adopted in this paper in order to illustrate the comprehensive nature of lord denning's approach to constitutional issues. in essence he subscribed to the common lawyer's belief in the value of publicity. support for public justice spills over into support for open government. lord denning gave an impetus to the movement for open government on a practical casc-by-case basis. in this, as in so many areas of the law, his influence will be missed. 76. anthony lester, "fundamental rights: the united kingdom isolated?", [1984] p.l. 46. 77. see, e.g., the judgment of sir robert megarry v.-c. in malone v. commissioner oj police oj ihe metropolis [1979] 2 all e.r. 620. telephone-tapping has now been regulated in the interception of communications act, 1985. 78. r. v. hammersmilh coroner, ex p. peach [1980] 2 all e.r. 7. 79. r. v. crown court al sheffield, exp. brownlow [1980] 2 all e.r. 444. see lord denning, whal next in ihe lawl (1982), at pp. 63-65 and r. v. mason [1980] 3 all e.r. 777. see also, peter duff and mark findlay, "jury vetting the jury under attack", (1983) 3 legal siudies 159. 80. the times, 31 july 1982, at p. 2. 81. in one case (involving the church of scientology) counsel, on the basis of eight cases over the previous ten years, spoke of "a reasonable belier' that there was an unconscious bias on lord denning's part; and the master of the rolls withdrew from the hearing of the appeal: ex p. church oj scienlology oj california, times l.r. for 20 february 1978 (the times, 21 february 1978, at p. 9). on scientology, see st john a. robilliard, religion and the law (religious liberty in modem english law) (1984), at pp. 106-110. 82. (1610) 8 co. rep. 118a. 83. taylor v. the new zealand poullry board [1984] 1 n.z.l.r. 394. 126 149 the denning law journal 2017 vol 29 pp 149-156 book review because of sex – one law, ten cases, and fifty years that changed american women’s lives at work gillian thomas (st martin’s press, us, 2016) $us 26.99 (hardback), pp 291 isbn 978-1-137-2805-3 a law of her own – the reasonable woman as a measure of man, caroline a. forell and donna m. matthews (new york university press, us, 2000) $us 27.00 (paperback), pp 260, isbn 0-8147-2677-1 jocelynne a scutt* though published more than ten years apart, it is timely to review these volumes together. both books adopt an historical perspective on women under men’s laws, with a strong message for the contemporary world. because of sex traces developments constituting, and bringing about, advances in how the law addresses women’s work and roles, and consequent change in society. a law of her own proposes how the law should adopt a revised approach, substituting the ‘reasonable woman’ standard for the existing generally ubiquitous – ‘reasonable man’ or ‘reasonable person’ standard – which because of sex indicates has at least to some degree, in some instances, occurred. both books are applicable to addressing women’s work in maledominated industries and the reception of women into non-traditional fields. the frontispiece quotation from judge francis x. hennessy of the connecticut court of appeals, appearing in a law of her own, is apposite for both books, if the words ‘a world of law’ are replaced, in the context of because of sex, with the words ‘a world of work’: * the hon dr jocelynne a scutt, barrister and human rights lawyer, visiting professor, university of buckingham. book review 150 imagine if you will a world of law in which women are the predominant players and where the male is the exception to the norm: a law of her own imagine if you will a world of work in which women are the predominant players and where the male is the exception to the norm: because of sex women are not the predominant players in the work-world of industries such as engineering, ‘technical’ trades, science, road haulage or transportation, and construction. the world of management and the corporation board remains sparsely populated with women. as for industry, as workers comprising only 4% of the total uk oil and gas workforce, they mostly labour alongside male workers. this impacts on their work, their reception as workers, their opportunities for progression and promotion, and their retention in the industry. similarly in the world of law, women are not the predominant players. far fewer women than men appear in the courtroom on the bench, as judges, or at the bar table as barristers, solicitors, or attorneys. in criminal cases, women appear mostly as victim/survivor witnesses. in the employment field of civil law women appear mainly as litigants in workplace discrimination cases. both a law of her own and because of sex take as their template the urgent need to ensure that the legal system operates as it should (and it is professed albeit falsely to operate) fairly, consistently, without stereotyping or unconscious or blatant bias – particularly where women are concerned. because of sex analyses ten cases where women and women’s rights in non-traditional fields made a difference to women, the law and employment: phillips v martin marietta corporation (1971)1 – ida phillips (a mother of a three-year-old) applies for a job at missile manufacturer martin marietta, one of the largest city employers, paying more than double what she earned as a waitress … to be told that the company “wouldn’t hire women with kids that young”. dothard v rawlinson (1977)2 – applying to join alabama’s department of public safety, brenda meith is told that women are incapable of working as state troopers – insufficient brawn, not enough strength, no capacity for arresting dangerous criminals. kim rawlinson is refused a job with alabama board of corrections as a prison guard because “at 115 pounds, she didn’t meet the position’s 120-pound weight requirement”. 1 400 us 542 (1971) (no 73), 411 f 2d 1, 4 (5th cir 1969). 2 433 us 321 (1977) (no 76-422). the denning law journal 151 city of los angeles department of water and power v manhart (1978)3 – women working with the los angeles department of water and power have second-class status under the dwp pension plan, contributing more than men, yet that greater contribution not translating into greater pension benefits: upon retirement, “they still got the same monthly check as their male counterparts”. meritor savings bank, fsb v vinson (1986)4 – michelle vinson is sexually abused for more than three years by her supervisor at capital city federal savings bank. sidney taylor, her supervisor, forces her to perform oral sex, have intercourse, view his erect penis, and submit to having her breasts groped. “getting my dick sucked” is a constant refrain, as well as alerts: “you are going to fuck me this evening”. california federal savings & loan association v guerra (1987) 5 lillian garland returns to work from three months’ pregnancy leave – at least she wants to return to work. ‘no,’ she is told, “your job’s been taken over by the young lady you trained in your place.” four years as a loyal employee doesn’t count: the bank will let her know, says the human resources head, if another job comes up, but she’d be advised to look elsewhere. price waterhouse v hopkins (1989) 6 – having “generated more business and billed more hours than any of the other eighty-seven candidates” – all men, ann hopkins is nominated for partnership in laudatory terms by her price waterhouse division. seven out of the 662 partners are women, and despite her outstanding qualifications and performance, hopkins does not make it eight. more than half the candidates are promoted, but hers is “put on hold”. she is told she has “consistently irritated senior partners of the firm”, she “needs a course in charm school”, is “overly aggressive, unduly harsh, difficult to work with and impatient with staff” as well as “overcompensating for being a woman”. international union, united auto works of america v johnson controls, inc (1991)7 – women working in the global battery division 3 manhart v city of los angeles department of water and power 435 us 702 (1977) (no 76-8610), 387 f supp 980 (cd cal 1975). 4 vinson v taylor 477 us 57 (1986) (no 841979), no 78-1793, 1980 us dist lexis 10676 (ddc 26 february 1980). 5 758 f 2d 390 (9th cir 1985), no 83-4927r, 1984 us dist lexis 18387 (cd cal, 21 march 1984). 6 hopkins v price waterhouse 490 us 228 (1989) (no 87-1167), 618 f supp 1109 (ddc 1985). 7 499 us 187 (1991) (no 89-1215), 886 f 2d 871 (7th cir 1989) (en banc), 680 f supp 309 (ed wisc 1988). book review 152 (gbd) of johnson controls are told, via memo, that pregnant women and those capable of child bearing will “not be placed into jobs involving lead exposure or which could expose them to lead through the exercise of job bidding, bumping, transfer or promotion rights”. capability for child bearing is deemed a characteristic of women up to 70-years-of-age, requiring medical proof of infertility. the best paying jobs all happen to be located in the gbd. harris v forklift systems, inc (1993)8 – skilfully negotiating leases with contractors of the company’s cranes, trucks and equipment fleet, in her first year doubling the rental revenue, teresa harris is constantly told by her boss that she “has a racehorse ass”, should not wear a bikini because her "ass is so big, if you did there would be an eclipse and no one could get any sun”, comments constantly on her and fellow female employees’ clothing and bodies and tells her she and he should “start screwing around” and she “should fish for quarters out of his pants’ pocket”. burlington northern & santa fe railway company v white (2006)9 – a 43 year-old mother of three, sheila white gains a job as forklift driver, replacing a man. as the only woman amongst some one hundred employees in the department, she is told on her first day, via an ‘announcement’ during her boss’ orientation speech welcoming her along with five others (all male): “sheila, when you come on your period, you let somebody know so we can make your job lighter on you.” later, he tells her constantly that the railroad is “no place for a woman”, refuses her overtime hours, and denies her a company-issued raincoat whilst allocating her frequently to work in inclement weather. young v united parcel service, inc (2006)10 – working as an ‘air driver’ for united parcel service (ups), peggy young delivers packages throughout annapolis and surrounds. completing her rounds, she punches out, going to her second job delivering flowers for floral express. with two older children and following two miscarriages, she becomes pregnant for the fifth time. at the end of her first trimester, discussing with ups’ occupational safety and health manager a resumption of duties, she is told to obtain a medical practitioner’s letter “outlining her ‘restrictions’”. no 8 510 us 17 (1993) (no 92-1168), nos 91-5301, 5871, 5822, 1992 us app lexis 23779 (6th cir sept 17, 1992), no 3:89-0057, 1990 us dist lexis 20115 (md tenn nov 28, 1990). 9 548 us 53 (2006)(no 05-259) <http://www.oez.org/cases/20002009/2005/2005_05_259> accessed 21 july 2016, white v. burlington northern & santa fe railway company 364 f 3d 769 (6th cir, 2004), white v. burlington northern & santa fe railway company 310 f 3d 443 (6th cir, 2002), no 99-2733, 2000 us dist exis 22799 (wd tenn, aug 28, 2000). 10 135 s ct 1338 (2015) (no 12-1226). http://www.oez.org/cases/2000-2009/2005/2005_05_259 http://www.oez.org/cases/2000-2009/2005/2005_05_259 the denning law journal 153 ‘restrictions’ were advised her by her doctor and her pregnancy is not “high risk”, her job had involved delivering small, light packages, and throughout one of the successful pregnancies she’d lifted and carried a far heavier ‘package’ (her three-year-old son). because of the manager’s instruction, young’s doctor provides a note recommending young lift no more than 20 pounds. she is told ups policy means that her lifting restriction “being operative” she cannot continue working at all. “light duty” jobs are allocated to workers with “on-the-job injuries” – not pregnancy. she is told not to ‘come back in the building’ until no longer pregnant as she is ‘way too much of a liability’. in addition to analysing the cases and judgments, gillian thomas writes engagingly of each of the women who took on the establishment in the context of their respective workplaces – or places refusing to contract them as workers. she includes, also, information about the advocates who took on the clients and the cases to bring about resounding change. albeit a book for the lawyer – practising or academic – and written in concise terms explaining the law, its interpretation and its impact, because of sex is also a book for the interested general reader, bringing to life, as it does, each of these cases in content, context and human interest. the law should always be able to be understood by the non-lawyer, and thomas has worked to ensure this outcome. so much so, that readers today will be bemused at the need for women to fight these cases – when the answer seems so obvious from a 21st century perspective. yet arguments that today shock for their troglodyte perspective (no other adjective seems apt) were run in all seriousness – and judges accepted them, albeit fortunately for social advancement in the end the more enlightened view prevailed. the notion that sex discrimination could not include pregnancy discrimination or family responsibilities – because no man could be pregnant, and no man undertook childcare (of his young children) and hence there could be no application of a law founded in the notion that sex discrimination needed a male-female comparator – has a “sort of logic” whilst simultaneously being difficult to understand (ridiculous some may say – then and now). similarly the idea of bona fide occupational qualification (bfoq) applying to jobs which clearly women could do as well as men, or vice versa, yet traditional thinking could not contemplate much less accept. nevertheless judges not only “understood” these contentions but subscribed to them (this where a law of her own is essential – of that, more later). this is the tenor of martin marietta (1971) and united auto works (1991). questions by supreme court justices in the course of the martin marietta argument are notable for their time – although there can be no assurance that some of today’s judges in all common law book review 154 jurisdictions, at least, do not continue to subscribe to the same philosophy. as thomas says: “the notion that title vii had done away with distinctions between ‘men’s jobs’ and ‘women’s jobs’ seemed to confound some of the justices. ‘does the law require that the employer give the woman a job of digging ditches and things of that kind?’ justice hugo black asked … while justice harry blackmun [implored counsel for phillips] ‘educate me’ … (p 24)”. on, effectively, whether men could be nurses or not. what is instructive is the narrowness in the winning margin of all these cases – sometimes revealed by thomas’ including references to the justices’ discussions not appearing in the judgments. chief justice burger was outvoted by his brethren in martin marietta, his argument that (amongst other matters) a woman could never be a clerk (associate) to a supreme court justice because she “would have to leave work at 6 p.m. to go home and cook dinner for her husband …” fortunately failing. nonetheless, justice blackmun believed a hiring policy incorporating discrimination against any woman with pre-school age children had ‘“some rationality behind it” (p 29-30). sexual and sexist harassment loom large as an area where the supreme court grappled with legal argument making sex discrimination law applicable. meritor savings bank (1986), harris v. forklift systems (1993) and santa fe railway (2006) illustrate well the hostile environment confronting too many women in too many workplaces, particularly in workplaces, trades and professions dominated by men and seen as ‘male’ environs – and (purportedly) ‘rightly’ so. the notion that sexual and sexist harassment constitute ‘jokes’, are “what women simply have to put up with” or, being a consequence of women’s move into a male world (for some, an ‘invasion’), are women’s fault, hence not unlawful conduct, continues to find support in some offices, factories, workrooms, workshops – indeed, almost all (all?) places of work and some judicial outcomes. for forell and matthews, the way to address this and other limitations of the law in its duty to extend equal protection and rights to women, is by introducing the “reasonable woman” into the courtroom. against an acceptance that women and men are not ‘different’ in the sense of women’s being ‘fragile’ or requiring “special protection” so as to be equal, a law of her own contends that recognising women’s “viewpoints and experience in areas where women are primarily on the receiving end of violence aids in achieving equality”. this follows because “perceptions and conduct generally associated with women – gendered female – in our culture are simply better for everyone in addressing these the denning law journal 155 areas”. (p xxi) there is no sense, they say, in embracing an equality which applies a “male” standard to women and men: permitting women “to ‘equally’ injure, terrorise, and kill men” advantages no one. rather: “… holding everyone to a reasonable woman standard of behaviour when it comes to assessing violence against acquaintances and intimates could be transformative and foster meaningful and positive equality … (p xxi)”. forell and matthews advocate, therefore, “that everyone be held to this more respectful standard of conduct associated with, and expected of, women in our culture”. a law of her own points out that because society remains essentially patriarchal, where women’s and men’s interests conflict the tendency is to lean towards a male analysis or perception of what the law is or should be. this is simply a natural consequence rather than a conscious effort to privilege men over women, male over female. both male and female judges are likely to take this route unless explicit instructions are applied in the courtroom. the book canvasses the issues and their proposed standard through sections devoted to “the idea and the reality” of the reasonable person and the meaning of equality, ‘sexual harassment in the workplace’, ‘stalking’, ‘domestic homicide’, and ‘rape’. what would the ‘reasonable woman’ do in each of these settings or circumstance is the question that should be to the fore in legal analysis and application of laws. in the context of traditionally ‘male’ industries, where so many sex/gender discrimination and equal opportunity cases are fought, chapter 4 “how and why different perspectives matter in hostile environment and sexual harassment cases” is particularly apposite. as forell and matthews observe, sexual harassment cases frequently “arise in male-dominated workplaces such as heavy industry … and construction [where] women are clearly ‘the other’”. here, “at best” women are “ornamental”, or “at worst” are “intruders”: “antiwoman sentiment is deeply embedded in the culture of these workplaces [where] derision and disbelief often greet a female employee’s claim that she was sexually harassed [for] what she perceives as debilitating harassment her male coworkers and supervisors perceive as normal, acceptable behaviour. women … are seen as overly sensitive or vindictive – as troublemakers … (p 34)”. this influences judicial outcomes, for “what appears unreasonable and therefore unlawfully discriminatory from a woman’s perspective, based on book review 156 women’s experience, often looks harmless and lawful from a man’s perspective” or from the perspective of judges of whatever sex/gender, having been schooled in a traditional (that is, patriarchal) legal system. returning, then, to because of sex it becomes clear that the original trial in meritor savings bank, vinson v. taylor would not have been the rout it was, with a judge purportedly “inspired by the civil rights movement” determining there was no sexual harassment, that if there were any sexual relations between worker and boss they were voluntary, and that there was no connection between any alleged conduct and mechelle vinson’s retaining her job or being dismissed. this was “just another ‘inharmonious personal relationship’ caused by ‘personal proclivity, peculiarity of mannerism’, a ‘natural sex phenomenon’ that just ‘happened to occur in a corporate corridor rather than a back alley”. (p 93) in other words, teller trainee vinson was no more, no less than a prostitute. ultimately, on appeal, the supreme court in a unanimous judgment declared that when a supervisor sexually harasses a subordinate “because of the subordinate’s sex, that supervisor ‘discriminate[s]’ on the basis of sex”, with harassment causing “purely emotional or psychological harm [being] just as illegal as harassment [resulting] in tangible economic loss” (p 102). application of the reasonable woman standard from the outset would have seen vinson affirmed in her dislike of groping, exposure, ‘dick sucking’ comments and demands for ‘fucking’ (carried to fruition). requiring courts to apply this standard would enable a change in workplace culture, one in turn enabling women and men to get on with the job. in industries such as construction, engineering, road haulage, transportation, oil and gas, where conditions can be particularly dangerous, eradicating workplace harassment is not only a laudable but a necessary prerequisite – for women workers and male workers too. no one mindful of workplace safety, when working in conditions of danger, surely wishes the danger to be exacerbated. adopting a ‘reasonable man’ or (as presently constructed) ‘reasonable person’ standard runs the risk of maintaining conditions exacerbating the danger. a workplace where sexist and sexual harassment are endemic or even where they occur intermittently is one where risks of harm arising out of the conduct inflicted upon the woman worker are inevitable, adding to already existing risks founded in the industries themselves. apart from a readership in general, those working in male-dominated industries, particularly in human resources, would be well advise to read because of sex and a law of her own – to properly digest them, referring to and applying them in their work and workplaces. 1 denning law journal 2018 vol 30 special issue pp 1-14 editorial introduction in praise of comparative constitutional law: lessons from the commonwealth john hatchard jocelynne a. scutt 1 see below p 27. 2 see below p 30. for the anglophone african experience, see john hatchard, muna ndulo and peter slinn, comparative constitutionalism and good governance in the commonwealth: an eastern and southern african perspective (cambridge university press 2004) 13–19. constitutions come in all shapes and sizes. some provide for a federal or confederal structure whilst others adopt a unitary model. internal ethnic, religious or other factors may determine the structure and distribution of constitutional powers, issues that are often of less significance in a constitution written for a more homogenous population. the development of modern constitutions also varies considerably. as kirby points out, the ‘australian constitution is, historically, a product of an imperial statute enacted by the united kingdom parliament.’1 other documents have emerged as ‘the result of a long and bitter struggle, involving bloodshed, the imprisonment of many leaders and acrimony together with recriminations’: a point also noted by kirby in relation to india but certainly of more general application.2 in some cases, constitutions have emerged from fully representative constitution-making bodies and were carefully crafted to address past wrongs and to herald (it is hoped) a new era of constitutional and democratic government. the prime example here is the constitution of south africa 1996 which emerged from the building of a broad-based consensus on the terms of the new document. this included the establishment of a democratically elected constitutional assembly which was mandated to draw up and adopt the new constitution. this process has become increasingly common in constitution-making. again, the content of constitutions may vary considerably and what is included in the document may also depend on the time and place of its enactment. thus, as beck points out in his book that is reviewed in this special issue, henry higgins who was ‘a principal player in the formulation of the australian constitution, was editorial introduction 2 largely motivated by the desire to ensure that [the seventh day adventist church] along with others would support federation’. as a result, section 116 of the australian constitution provides for ‘religious freedom’. by way of contrast, in the drafting of the document, no account was taken of the rights of the indigenous peoples and as dodson and perrett put it: for countless generations before the current constitution was imagined, the continent of australia was subject to a complex and very different set of interlocking rules…. but colonialism proceeded in australia without acknowledgement of this ancient and ongoing legal heritage.3 as regards fundamental rights, some documents contain a ‘meagre collection of rights’4 whilst others include detailed provisions relating to the protection and promotion of such rights. in fact some recent constitutions have greatly expanded the scope of judiciable rights. for example, the bill of rights in the constitution of kenya 2010 includes detailed provisions relating to environmental rights; economic and social rights; and family rights and consumer rights.5 the australian constitution, albeit based on its us counterpart, contains no bill of rights and few rights provisions. these provisions are limited to religious freedom: section 116, trial by jury: section 80, acquisition of property on just terms: section 51 (xxxi), the right to vote: section 41 and prohibition of discrimination on the basis of state of residency: section 117.6 again, there are different views as to the legal effect (if any) of the preambular article which opens the fundamental rights chapter in many commonwealth constitutions.7 given these differences, amongst others, the merit of exploring ‘comparative constitutional law’ is worth considering. questions such as ‘why compare’ and ‘what are we comparing?’ spring to mind. it is hoped that this special issue of the denning law journal will provide some answers to such questions. 3 see below p 180. 4 a phrase used by kirby in comparing the australian constitutional provisions with the detailed fundamental rights provisions in the constitution of india: see below p 33. 5 see constitution of kenya 2010, chapter 4. 6 rights such as freedom of political expression have been ‘read in’ to the australian constitution on the basis that as it is a constitution for a democracy, such freedoms ‘must’ be contained within the provisions albeit not explicitly stated: australian capital television pty ltd v commonwealth [1992] 177 clr 106. 7 see for example newbold v commissioner of police [2014] lrc 684 (the bahamas); re br (adoption) [2014] lrc 347; masupha v senior magistrate [2014] lrc 433 (lesotho). editorial introduction 3 the commonwealth provides the key link here. twenty-three of the jurisdictions considered in this special issue are (or in the case of two, were) members of the commonwealth. these are australia, botswana, canada, ghana, india, kenya, lesotho, malawi, maldives, mauritius, namibia, nigeria, pakistan, seychelles, south africa, sri lanka, tanzania, trinidad and tobago, uganda, united kingdom, vanuatu, zambia and zimbabwe.8 as brewer and slinn point out9 the commonwealth is a voluntary association of fifty-three independent and equal sovereign states that is not formed by a binding treaty, but which has ‘consensus’ at its heart.10 this is reflected in the fact that all commonwealth member states share the fundamental political values as enshrined in the harare commonwealth declaration, i.e: • democracy: democratic processes and institutions which reflect national circumstances, the rule of law and the independence of the judiciary, just and honest government; • fundamental human rights: including equal rights and opportunities for all citizens regardless of race, colour, creed or political belief. the result is that in the constitutional and legal field, commonwealth member countries have much in common. i) common [legal] language whilst the people of the commonwealth speak many different languages, they communicate with each other through the shared english language. as a result, their constitutions, laws and the decisions of their superior courts are almost invariably written in english. this greatly facilitates the sharing and comparing of 8 zimbabwe and the maldives have withdrawn from the commonwealth, although in 2018 zimbabwe applied to re-join. the reasons for the withdrawal of the maldives are noted by brewer and slinn: see below p 112. 9 see below p 102. 10 the preamble to the charter of the commonwealth 2013 states that ‘the commonwealth is a voluntary association of independent and equal sovereign states, each responsible for its own policies, consulting and co-operating in the common interests of our peoples and in the promotion of international understanding and world peace, and influencing international society to the benefit of all through the pursuit of common principles’. it adds that the ‘special strength of the commonwealth lies in the combination of our diversity and our shared inheritance in language, culture and the rule of law; and bound together by shared history and tradition; by respect for all states and peoples; by shared values and principles and by concern for the vulnerable’. editorial introduction 4 constitutional principles and knowledge.11 at the same time, as scutt points out,12 the english language has inhibited women’s rights in judicial interpretation, with the word ‘person’ in the british north american act (now the constitution act) 1867 being classed by the supreme court of canada as denying women a role as senator, until the privy council stepped in. ii) common legal traditions the laws, legal system and legal traditions in the majority of commonwealth states are based on the english common law. for example, as kirby notes in relation to australia and india, many of their distinctive legal traditions are identical or similar including providing strong constitutional provisions protecting the tenure of superior judges.13 brewer and slinn also highlight the fact that the commonwealth (latimer house) principles outline the constitutional requirements that all commonwealth member states should have in place in order to uphold the independence of the judiciary.14 this is a point of particular significance given the fact that the judicial interpretation of a constitutional provision may have profound political repercussions: a point neatly demonstrated by the 2018 sri lankan crisis noted below. iii) common constitutional principles the colonial ‘heritage’ has also had a considerable influence on many constitutions. the french model was introduced into many former french colonies and often remains largely intact. likewise the westminster export model formed the basis for the independent constitutions of many commonwealth states, particularly those in the pacific, caribbean and africa.15 despite the many constitutional ups and downs over the years brought about by the introduction of the one-party state or the establishment of military rule, the model still forms the basis for numerous current documents. this provides an excellent basis upon which to compare critically constitutional provisions. the point is neatly illustrated in the article by hatchard in which he 11 see for example hatchard below on p 53. 12 see for example p 124. 13 see below p 24. 14 see below p 105. 15 it is worth noting that whilst the independence constitutions in anglophone african states were based on the westminster export model, the democratically elected nationalist leaders played a crucial role in shaping the documents in many instances, and indeed on some key issues their voices were decisive: see hatchard, ndulo and slinn (n 2) 15–19. editorial introduction 5 compares and contrasts the provisions relating to the office of the auditor general in nine anglophone african states. he notes that even where the original independence constitution has been replaced or significantly amended, many of its basic features remain, including those relating to the auditor general. however, the analysis highlights the fact that in several jurisdictions the office and officeholder are not provided with adequate protection against attempts to undermine their work and that there is a need to strengthen key provisions.16 the constitutional relationship between the president, the prime minister and the legislature is one that has raised considerable controversy in many commonwealth member states. a particularly difficult issue can arise in some jurisdictions where the president has the power to remove the prime minister from office. as kirby notes ‘the westminster system affords a swift and flexible means of terminating an incompetent, unpopular or misbehaving head of government’.17 however, in some situations this power may appear somewhat too ‘flexible’ and may well require the judiciary to enter the arena in order to protect the constitution. the 2018 constitutional crisis in sri lanka highlights the point. on 9 november 2018 the president of sri lanka dismissed the incumbent prime minister and purported to make a new appointment. the president also issued a proclamation dissolving parliament with immediate effect and requiring the holding of fresh parliamentary elections. this was at a time when the incumbent prime minister claimed to enjoy a majority in parliament. this provoked a major constitutional crisis.18 it was left to the supreme court of sri lanka to rapidly intervene by issuing an interim order on 14 november 2018 staying the operation of the proclamation pending a full hearing of the issues.19 on 12 december 2018 a full bench of the supreme court in sampantham v attorney general20 unanimously ruled that the presidential proclamation of 9 november 2018 which purported to dissolve parliament was in breach of article 70(1) of the constitution of sri lanka and thus the action of the president was null and void. the court added that ‘the constitution governs the nation. disregarding the constitution will cast our country into great peril and mortal danger. the court has a duty to uphold and enforce the constitution’.21 16 see below pp 51–77. 17 see below p 22. 18 see presidential proclamation 2076/70 of 9 november 2018 in which the president sought to exercise his powers under articles 33, 62, 70 of the constitution of sri lanka. 19 see sampantham v attorney general sc fr no 351/2018 (unreported 14 november 2018). 20 see applications 351/2018–361/2018 (unreported 12 december 2018). 21 ibid, 85. editorial introduction 6 iv) common interpretation of constitutional principles kirby has noted that ‘sometimes the interpretation of constitutional principles can take a wrong turning or a right turning’ bearing in mind that ‘constitutional texts and doctrine, being expressed in words, will often be ambiguous’. he goes on to point out that sometimes in making choices the judges’ ‘lesser angels will prevail’ whilst at other times their ‘better angels’ will gain the upper hand.22 herein lies the importance of developing common principles of constitutional interpretation and as slinn has noted: there has emerged a shared inheritance of judicial decisions in interpreting bills of rights which, despite the diversity of constitutional forms and governmental systems, have many provisions in common.23 a major contribution comes from the bangalore principles on the domestic application of universal human rights norms. these were adopted at a judicial colloquium in 1988 chaired by justice p n bhagwati and as kirby points out, these ‘suggested that, where there was ambiguity in the state of the law, a court should prefer the meaning or expression of the law that conformed to international human rights norms to one that did not’.24 as he later explains, he adopted this approach when invoking the ‘interpretative principle’ in the groundbreaking decision of mabo v queensland (no 2).25 a series of judicial colloquia followed the bangalore colloquium with paragraph 4 of the balliol statement of 199226 highlighting the importance of judges adopting a common approach to the interpretation of constitutional provisions: the general principles enunciated in the colloquia reflect the universality of human rights – inherent in humankind – and the vital duty of an independent and impartial judiciary in interpreting and applying national constitutions, ordinary legislation and the common law in the light of those principles. (emphasis added) 22 see below p 42. 23 peter slinn, ‘the commonwealth and the law’ in james mayall (ed), the contemporary commonwealth: an assessment 1965-2009 (routledge 2010) 39–40. 24 see below p 43. 25 see below p 45. 26 concluding statement from the judicial colloquium held at balliol college, oxford in september 1992. editorial introduction 7 in the light of the different constitutional orders in the commonwealth, the final words of paragraph 4 are also particularly relevant: these general principles are applicable in all countries but the means by which they become applicable may differ. the development of commonwealth-wide principles was greatly enhanced with the decision in r v big m drug mart ltd in which the supreme court of canada considered the interpretation of the canadian charter of rights and freedoms.27 here dickson j, giving the judgment of the court, noted: this court has already, in some measure, set out the basic approach to be taken in interpreting the charter. in  hunter v southam inc [1984] 2 scr 145, this court expressed the view that the proper approach to the definition of the rights and freedoms guaranteed by the charter was a purposive one. the meaning of a right or freedom guaranteed by the charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect. 28 (emphasis added) dickson j then went on to state: in my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and larger objects of the charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concept enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the charter. the interpretation should be ... a generous rather than legalistic one, aimed at fulfilling the purpose of a guarantee and securing for individuals the full benefit of the charter’s protection.29 a further important point was made by lamer j in the canadian case of dubois v r: our constitutional charter must be construed as a system where every component contributes to the meaning as a whole and the whole gives meaning to its parts … the court must interpret each section of the charter in relation to the other.30 27 r v big m drug mart ltd [1985] 1 scr 295 18 dlr (4th) 321. 28 ibid [116]. 29 big m drug mart (n 27) [117]. 30 [1985] 2 scr 350, 356. editorial introduction 8 this approach to constitutional interpretation has ‘hugely enriched’ the jurisprudence of courts around the commonwealth.31 indeed the approach taken in the dubois case was adopted (along with numerous other indian and sri lankan cases) by the landmark decision in 2018 of the supreme court of sri lanka in sampantham and others v attorney general.32 even so, as bloch and rubenstein point out in their article on section 44(i) of the australian constitution,33 there may be considerable judicial disagreement on the interpretation of constitutional provisions and these can have lasting political consequences: in this instance disqualification from membership of the australian parliament due to dual citizenship.34 the authors neatly compare and contrast the differing approaches to the interpretation of section 44(i) taken by the court in australia including the extent to which judges should take into consideration the history of a specific constitutional provision. as they suggest: ‘where the history suggests that framers [of the constitution] drafted the text to meet a specific purpose, and that purpose no longer exists, the text in question can be rendered obsolete.’35 perhaps a consideration of the principles laid down in r v big m drug mart ltd and dubois v r, and the numerous similar commonwealth decisions might have assisted the court in interpreting the constitutional provision. v) common sharing and utilising of comparative commonwealth jurisprudence given the above, it is no coincidence that it is now commonplace for judges to make use of comparative commonwealth jurisprudence in determining constitutional matters. an outstanding example is found in the 2017 judgment of the supreme court of kenya in the important case of odinga and others v 31 slinn (n 23) p 40. 32 n 19. 33 see below p 80. 34 an interesting distinction between the australian constitution and the british north america act (now the constitution act) is that the canadian dual citizenship provision excluded a canadian citizen from becoming a senator if, having been appointed, he or she took up dual citizenship – not if he or she held it at that time of appointment: section 31 ‘the place of a senator shall become vacant in any of the following cases: (1) … (2) if he takes an oath or makes a declaration or acknowledgement of allegiance, obedience, or adherence to a foreign power, or does an act whereby he becomes a subject or citizen, or entitled to the rights or privileges of a subject or citizen, of a foreign power…’ 35 ibid p 89. editorial introduction 9 independent electoral and boundaries commission and others.36 the matter arose following the disputed 8 august 2017 presidential election in kenya. the petitioners asserted: … in the conduct of the presidential election, the [independent electoral and boundaries commission] … so flagrantly flouted the constitution and the written election law on elections that in the end it completely subverted the will of the electorate.37 one important issue raised in the case concerned the standard of proof applicable to election petitions. the supreme court of kenya, quoting from an article by the first author in an earlier issue of the denning law journal,38 noted that the courts in numerous commonwealth jurisdictions had adopted different approaches as to requisite standard of proof in such cases. thus in india, the criminal standard is applied, in england and mauritius it is the civil standard, whilst in zambia, as well as previous kenya decisions, the standard of proof is said to be higher than the balance of probabilities but lower than beyond reasonable doubt. to the disappointment of the first author, the court did not adopt his argument in the denning law journal that the standard of proof in election petitions is the balance of probabilities but maintained that it was the ‘intermediate standard of proof’. nevertheless the willingness of the court to review comparative constitutional approaches is commendable. even more commendable was the decision of the supreme court of kenya in the same case that the presidential election of august 2017 was not conducted in accordance with the principles laid down in the constitution of kenya and the electoral law. accordingly non-compliance with these principles ‘affected the process leading to the declaration of [uhuru kenyatta] as president elect in a very substantial and significant manner’ so as to render the declaration null and void and the election rendered invalid.39 the principled stance of the supreme court of kenya in so holding provides both an important constitutional precedent as well as reinforcing the importance of protecting and upholding the independence of the 36 presidential petition no 1 of 2017, [2017] eklr. 37 ibid [214], of the majority judgment, ojwang j dissenting. in particular, it was alleged that the electoral commission violated articles 81 and 86 of the constitution of kenya by failing to ensure that the conduct of the elections [of 8 august 2017] was simple, accurate, verifiable, secure and accountable: ibid. 38 john hatchard, ‘election petitions and the standard of proof’ (2015) 27 dlj 291. 39 odinga and others (n 36) [383] of the majority judgment. editorial introduction 10 judiciary. the december 2018 decision of the supreme court of sri lanka40 illustrates the same point. for legal researchers, comparative constitutional jurisprudence also provides a wealth of material, for a suitable precedent from a commonwealth country is seemingly never far away. for example, the presidential power of pardon has received some publicity, especially over the issue as to whether a president can pardon him/herself. this matter was explored in the, perhaps unlikely, jurisdiction of vanuatu (a commonwealth member state) where the constitution is based on the westminster export model. as is the case in numerous other commonwealth constitutions, section 38 provides that the president of the republic ‘may pardon, commute or reduce a sentence imposed on a person convicted of an offence’. in october 2015 marcellino pipite, the then speaker of parliament, and fourteen other mps (each of whom were members of the government) were convicted of corruption and the bribery of officials,41 the supreme court of vanuatu having found that they had accepted bribes from the opposition to support a vote of no confidence. at the time, the state president was out of the country and in his absence pipite was appointed acting president. in this capacity he proceeded to grant a presidential pardon to himself and ten of the other parliamentarians claiming it was to ‘maintain stability in the government of the republic of vanuatu’.42 in natuman v president of the republic of vanuatu43 the three applicants who were all members of parliament sought a declaration that the granting of a pardon to himself by mr pipite, the acting president of vanuatu was unconstitutional. it was claimed that the conduct of mr pipite in granting a pardon to himself and other government officials had breached his constitutional duties, amongst others, to act with integrity and avoid conflicts of interest. saksak j agreed, holding that mr pipite, as acting president, had exercised his powers of pardon ‘wrongly and unlawfully’ and his action was therefore ultra vires section 38 of the constitution. the pardon was therefore ‘unconstitutional, invalid and of no force or effect’.44 40 see n 19. 41 contrary to section 73 of the penal code. 42 pardon dated 10 october 2015 (gazette no 87). 43 [2015] vusc 148. 44 ‘conclusions’. editorial introduction 11 the court appeal of vanuatu in vohor v president of the republic of vanuatu45 upheld the decision of the lower court, lunabek cj, giving the judgment of the court, emphasising that the then acting president: [h]ad a duty to conduct himself so as not to place himself in a position in which he had or could have had a conflict of interest, or in which the fair exercise of his public duties might be compromised.46 the wednesbury principles therefore applied and the ostensible reason for the pardon, i.e. to maintain the stability in the government of vanuatu, was ‘plainly an irrelevant consideration’. the decision to pardon was also a clear misuse of public power and was ‘so outrageous in its defiance of logic [and] accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it’.47 in essence, a self-pardon is a constitutional impossibility. whilst the president has the power to grant a pardon to ‘any person’ convicted of a criminal offence, the act is clearly open to judicial review and must be ruled unlawful. vi) common interest in protecting the rights of minorities the importance of providing effective constitutional protections for minorities is also discussed in this special issue. for example, in their insightful ‘comment’, dodson and perrett (both members of the australian parliament) highlight the fact that the rights of the indigenous peoples in australia (as in some other jurisdictions) remain a work in progress. the australian constitution, they observe, is imposed over what may be the most longstanding system of law without any recognition or acknowledgement of that reality – a reality not only for indigenous australia but for non-indigenous australia too. they posit that consistent with the recognition in the constitution of federal government responsibilities there should be a new ‘caring for country’ provision, which would incorporate indigenous australia’s stewardship of country and the need for environmental protection and promotion to preserve the integrity of the land or regain it where ravaged by mining corporations.48 they go beyond a simple ‘rights of minorities’ plea to one that promotes the principle that ‘we are in this together’: indigenous peoples and 45 [2015] vuca 40. 46 ibid [23]. 47 vohor (n 45) [31] adopting the words of lord diplock in ccsu v minister for the civil service [1985] ac 374. 48 see below p 185. editorial introduction 12 settlers, colonists or invaders have commonalities that, through recognising indigenous peoples’ law, can ensure that a constitution can reflect ancient past as well as common law. kirby also emphasises that it is often up to the courts to interpret constitutional provisions in support of the rights of minorities, as reflected in the approach of the courts in india and australia and in many other constitutional courts around the world especially on the issue of discrimination on grounds of sexual orientation.49 sometimes, as scutt points out,50 this requires constitutional amendment whether by interpretation of the original words of the constitution’s provisions, or by referendum or whatever ‘change’ mechanism is provided in the constitution to bring it into conformity with contemporary standards. in the case of same-sex marriage, following a plebiscite with an overwhelming majority supporting the proposition that ‘love is love’, hence encompassing the right to marry whatever the sex/gender of the parties, the australian parliament incorporated this into statute law. no constitutional change was necessary, the marriage power stating simply: the parliament shall … have power to make laws for the peace, order, and good government of the commonwealth with respect to: marriage … section 51 (xxi) thus marriage in australia now means a state-sanctified union between a woman and a man, a man and a man, or a woman and a woman.51 vii) common access to comparative constitutional materials the sharing of comparative constitutional jurisprudence has been greatly enhanced by ready access to relevant cases and materials. through the pioneering work of the law reports of the commonwealth, for example, judges, legal practitioners and law teachers can enjoy access to a wealth of constitutional decisions, complete 49 see below p 45. 50 see below p 140. 51 although see the discussion prior to the plebiscite drawing attention to the differing views of high court judges from 1908 through to 1999 on whether ‘marriage’ had a constitutional meaning (consistent with hyde v hyde and woodmansee [1866] lr 1 p&d 130, 133) unable to be re-defined by parliament: ian ireland, ‘the high court and the meaning of “marriage” in section 51(xxi) of the constitution’ (research note no 17, 2001–02) department of the parliamentary library, parliament of australia <https://www.aph.gov.au/binaries/library/pubs/rn/2001-02/02rn17.pdf> accessed 20 december 2018 editorial introduction 13 with detailed headnotes, spanning the commonwealth. more recently, the development of freely accessible on-line legal information institutes, and in particular the commonwealth legal information institute, has further facilitated access to commonwealth constitutional materials.52 for law teachers, legal education conferences can provide a platform for the sharing and exchange of comparative information and ideas. for example, in 1995 the commonwealth legal education association held a conference in durban, south africa. this was attended by law teachers from around the commonwealth including several eminent indian academics. one key session was on the new constitution of south africa in which several local speakers highlighted the challenges facing the constitutional court of south africa (ccsa) in interpreting some of its key provisions. remarkably, the indian participants almost invariably pointed out that the indian supreme court had already dealt with the particular issue in question. perhaps not surprisingly, the ccsa has made good use of this jurisprudence in several cases. viii) constitutional problems and the role of commonwealth associations: the sri lankan example in their article on the commonwealth principles, brewer and slinn highlight the key role played by the four commonwealth associations in helping to shape the commonwealth’s fundamental political values which have been endorsed by all commonwealth member states.53 regrettably, in practice some commonwealth member states have not always been prepared to uphold their commitments and as the authors point out, commonwealth associations continue to play an active role in drawing attention to any breaches of those fundamental values and attempting to hold governments to account through the ‘green channel’.54 much of this work is done through the issuing of joint statements drawing public and official attention to such breaches. the constitutional crisis in sri lanka, noted above, is of particular interest in that it highlights the importance of all commonwealth member states adhering to their commitments made in the commonwealth charter, the harare commonwealth declaration and the commonwealth principles and to abide by the terms of their national constitution. in response to the crisis, in november 2018 the four 52 available at <commonlii.org> accessed 20 november 2018. 53 the commonwealth lawyers association, commonwealth legal education association, commonwealth magistrates’ and judges’ association and commonwealth parliamentary association. 54 see below p 106. 14 editorial introduction associations issued a joint press release in which they expressed their ‘deep concern at the implications of the continuing political crisis for the rule of law in sri lanka’ and called upon the parties to observe scrupulously and in good faith the provisions of the constitution relating to the respective roles of  the executive, parliament and the judiciary, together with the provisions of the commonwealth charter and the commonwealth (latimer house) principles on the three branches of government. they also highlighted ‘the references in the [commonwealth] charter to the responsibility of governments, political parties and civil society for ‘upholding and promoting democratic culture and practices and to the recognition of the importance of maintaining the integrity of the roles of the legislature, executive and judiciary’ and ‘the requirement in the latimer house principles that ‘parliamentarians must be able to carry out their legislative and constitutional functions in accordance with the constitution, free from unlawful interference’.’ overall, it is hoped that this special issue of the denning law review will help to highlight the importance and relevance of the study of comparative constitutional law, particularly in relation to commonwealth member states and that it has provided some answers to the questions as to the merits of undertaking such a study. it is further hoped that it will prove of interest and use to members of the judiciary and legal profession as well as legal researchers. similarly, that it will encourage teachers of public law to make use of the enormous resources available to help students understand and appreciate the importance of comparative constitutional law and how to make use of it effectively. finally, it is hoped that it will also reinforce to members of the executive and parliaments alike one constant and fundamental point. that is that the constitution is the supreme law of the state. to paraphrase the words of lord denning: ‘be you ever so high, the constitution is above you.’55 it follows that a court has a ‘sacred duty to uphold the integrity and supremacy of the constitution.56 professor john hatchard: john.hatchard@buckingham.ac.uk dr jocelynne a. scutt: jocelynne.scutt@buckingham.ac.uk 55 in gouriet v union of post office workers [1977] 1 qb 729, 762, lord denning quoted the words of thomas fuller: ‘be you ever so high, the law is above you.’ 56 sampantham and others v attorney general (n 19) 69. privatizing the family: the reform of child law stephen cretney* the ideology of domestic privacy was for long dominant in england. in victorian times the home was seen (in the words ofjohn ruskin)l as "the place of peace; the shelter, not only from all injury, but from all terror, doubt and division ... a vestal temple, a temple of the hearth watched over by household gods ... "; and this image was perhaps reinforced by the fact that, within the temple, parents wielded tremendous power. they had inevitably given their children their genetic inheritance ~ in most cases possibly more important than any other patrimony ~ and parental power was a real and well recognised legal concept; a parentz had virtually complete control over his child's upbringing and legally enforceable rights to his or her services. however, the foundation of the national society for the prevention of cruelty to children in 1889,3 and the well-publicised activities of dr barnado4, evidenced the sorry truth that cruelty and deprivation were all too often the reality for the victorian child; and the twentieth century has seen the enactment of what has been aptly described as a "cascade of legislation"s designed to protect children but in reality sometimes proving itself to be no more than a "bureaucrat's paradise and a citizen's nightmare". 6 in december 1988, the house of lords began consideration of a major children bill intended to make the relevant statute law "professor of law, university of bristol. this article was written on the basis of the bill as presented to parliament. 1. sesame and lilies (1865). 2. usually the father to the exclusion of the mother. for the development of the law in respect of equalising parental rights over the century after the introduction of judicial divorce by the matrimonial causes act 1857, see p. h. pettit in a century of family law, edited by r. h. graveson and f. r. crane (1957). 3. the society was incorporated by royal charter in 1895. 4. see, e.g., barnado v. ford [1892] a.c. 326 (h.l.). for the background, see g. wagner, barnam (1979), 13. the repeal of the custody of children act 1891 enacted to prevent unmeritorious habeas corpus applications by parents seeking to enforce their legal rights against bamado to be effected by the children bill in 1989 (see below) has a certain symbolic importance. 5. hever v. bryant [1970] 1 qb. 357, 371 6. ibid., 15 the denning law journal simpler, more accessible to those who work with it and more comprehensible.7 the lord chancellor rightly described the bill as "the most comprehensive and far reaching reform of child law which has come before parliament in living memory".8 the object of this essay is not to give a detailed commentary on the bill's provisions an undertaking which would be of little value not least because the government has shown itself commendably ready to listen to reasoned comment on its proposals, so that substantial changes on points of detail may well take place during the parliamentary debates on the biiibut rather to highlight some broad trends in the development of the law; and to seek to place the most recent changes in context. in particular, it is concerned with the underlying question of public policy: almost everyone would accept that there is a private realm of family life which the state cannot (or at least should not) seek to enter,9 yet how is the boundary of that realm to be defined? how far is the state to be entitled to impose its own preferred standards and thereby restrict the traditional freedom of parents? and when we talk about the state in this context, through what medium do we envisage that it should act is central government itself to be responsible, or is this another area in which local authorities are to be given effective power? in what circumstances do we think that such choices can and should be made or at least open to review by the courts? private law and public policy lawyers tend to concentrate their attention on legislation which gives rise to litigation, or at least to dispute; and it is therefore not surprising that the indirect effect on legal doctrine oflegislation which is primarily concerned to change social institutions is not usually given prominence by legal writers. and yet it is now something of a truism that the statute which has had the most dramatic impact on parental rights was the education act 1870. that act ensured that virtually all children were compulsorily removed from the domestic circle and subjected for a substantial proportion of their waking hours to the powerful influence of their teachers. classically it had been the family which was responsible for the socialization of children taming their impulses and instilling values, skills, and desires necessary to run societylo and this process inevitably conferred on the parents very wide freedom of choice betwen competing social and moral value systems. but since 1870, the family's own influence in this respect has inevitably been reduced; and the power of the state and its agents correspondingly increased. 7. official report (h.l.) 6 december 1988, vol. 502, col. 488. the bill (insofar as it is concerned with the private law of child custody) is based on the law commission's review of child law (law com. no. 172, 1988), and (in relation to changes in public law) on policy decisions set out in a white paper (the law an child care and family servi.es (1987) cmnd. 62) which were taken in the light of a thorough and extensive review afchild care law (1985). 8./bid .. 9. prince v. massachusetts (1944) 321 us 158, 166. 10. skolnick, family i,l trallsitioli (1971). 16 privatizing the family in 1857 it seemed self eviden~ that schools in new england should seek to inculcate the traditional protestant work ethic: "regularity, punctuality, constancy and industry" by means of a moral and religious instruction daily given.i] more than a century later, the united kingdom parliament enacted legislation requiring head teachers to "determine measures" with a view to promoting (amongst other, no doubt equally laudable, objectives) "self-discipline and proper regard for authority.,,12 the same act also requires that sex education be given in such a manner as to encourage pupils to have due regard to moral considerations and the value of family life13 and one looks in vain for a definition section which will explain what is meant by "family life" for this purpose. the point is not, of course, whether any particular values espoused in schools are desirable or not. it is simply that the acceptance by the state of responsibility in this field inevitably sharply restricts what was at one time seen as a major role for the family, and as a justification for the concept of parental authority. nevertheless, it must be accepted that state intervention in education and other matters vitally affecting the young raises questions which at least appear to be of a different order from those with which family lawyers have usually been concerned. thus the private lawyer has traditionally been concerned with the question: "when can the state intervene in the affairs of a particular family?" rather than with the question "to what extent is the state entitled to insist that all children be subjected to a particular method of upbringing?" the traditional view now embodied in the children and young persons act 1969 is that the state should only be entitled to intervene in the affairs of a particular family if certain, apparently restrictively defined, conditions for example, that the child's health is being avoidably impaired or neglected]4 are satisfied to the satisfaction of a court of law.is moreover, the court can only deprive the parent of his rights if that court, as a separate matter, is satisfied that the child is in need of care and control which he is unlikely to receive unless the court makes an order]6 and in any event the court which must have regard to the child's welfare17 retains an ultimate discretion not to make any order.]8 to this general rule, there has been one remarkable exception. it is that the 11. massachusetts superintendent of schools, as quoted in). m. pherson, baule cry of freedom (1988). 12. education (no 2) act 1986, s. 22. 13. education (no 2) act 1986, s. 46. 14. children and young persons act 1969, s. 1(2)(a). 15. as the law now stands, a local authority may acquire parental rights over a child by the administrative process of passing a parental rights resolution; but the legislation (child care act 1980, re-enacting provisions originating in the poor law and put into substantially their present form by the children act 1948) now effectively gives a parent a right of appeal: see per lord scarman, lewisham l.b.c. v. lewishamjuvenile court justices [1980] a.c. 273, 307. 16. children and young persons act 1969, s. 1(2). 17. children and young persons act 1933, s. 44(1). 18. res (.4 minor) (care order: education) [1978] qb. 120. 17 the denning law journal high court has a statutory powerl9 to commit a child to the care of a local authority if it considers that there are exceptional circumstances making it impracticable or undesirable for him to be or continue to be under the care of either of his parents or of any other individual. moreover, it has been held20 that the court has an inherent power to commit a ward of court to the care of the local authority whenever it considers that such a course of action would be in the child's best interests. thus, the court directed that a 17 year old girl who had stolen jewellery from her mother, had her hair shaved, been tattooed, and had run away from home on a number of occasions "after some of which she returned very much the worse for drink and showing clear signs of having indulged in sexual intercourse" should be committed to care and that if appropriate the court could give directions that she be accommodated in secure accommodation i.e. effectively completely deprived of her liberty. it may be, however, that there is a second exception to the general principle that direct state intervention into family matters is only to be justified in exceptional circumstances. divorce is, today, a common event affecting a significant proportion of all families; and yet the fact that divorce is contemplated is, under the law as it now stands, apparently considered of itself to be sufficient to justify state scrutiny of family parenting decisions. the origin of the relevant legislation is to be found in the report of the denning committee on procedure in matrimonial causes which reported in 1947.21 the committee expressed the view that the welfare of children in divorce proceedings was being wrongly subordinated to the interests of divorcing parents; and in 195822 legislation was enacted designed to ensure that parents gave full consideration to their children's future welfare, and to make the court's control over the welfare of children more effective. since the introduction of the so-called special procedure in divorce23 it has been possible for husband and wife to divorce without even seeing any kind of judicial officer; but if there are children a judge not a mere registrar will look into the proposed arrangements for their upbringing. 24 the children's appointment system constitutes a major exception to the general philosophy underlying the modem law of divorce as clearly articulated by the booth committee on matrimonial causes procedure.25 this is that agreement between the parties as to the manner in which their marriage should be terminated 19. family law reform act 1969, s. 7. there are similar powers available to the court in divorce and guardianship proceedings, and in matrimonial proceedings in the domestic court. 20. re sw viminor) (wardship: jurisdiction) [1986] 1 f.l.r. 24. 21. final report, cmnd. 7024, para. 31. 22. the matrimonial proceedings (children) act 1958 gave effect to detailed recommendations of the royal commission on marriage and divorce, cmnd. 9678. 23. for an account of the procedure, see s. m. cretney, principles of fami(y law 4th ed. (1984), pp. 183-88, 391-92. 24. matrimonial causes act 1973, s. 41. 25. report of the matrimonial causes procedure committee (1985), para. 2.3. 18 privatizing the family and as to all other aspects of their affairs, far from being a bar to the grant of a decree, is now positively encouraged. yet, the effect of the children's appointments system is that however much the parents may be in accord about the future upbringing of their children they are not to be allowed to give effect to that agreement unless the arrangements they propose have first been considered by a judge who, in practice, may have no professional or even personal knowledge of the upbringing of children, and who will usually lack any substantial body of factual evidence on the basis of which he might exercise his judgment. there is thus at best an ambiguity about the judge's role in performing what is basically not an adjudicative function. moreover, the making of the inquiry can be seen to smack of paternalism26 and indeed unnecessarily to stigmatise those involved in divorce. the booth committee27 clearly found the children's appointments system difficult to reconcile with the emphasis which the committee placed on the desirability of bringing home to the parties their primary decision-making responsibility in relation to the arrangements which should be made for the children and other consequences of the marital breakdown; but nevertheless concluded that the matter was of such general importance that the relevant statutory provisions should not be repealed. the committee contented itself with proposals for detailed changes intended to improve the operation of the children's appointments system. however, the children bill now accepts proposals made by the law commission which, in this as in other respects, mark a significant shift towards privatizing the consequences of family breakdown. the same philosophy can be seen in the provisions in the children bill relating to the ground for state intervention. before examining the proposed changes in these two areas it is necessary to consider the question of the agency through which state power is exercised. child of the state or of a local authority? it is a distinctive and important feature of english law that the primary responsibility for the provision of child care services rests on local authorities rather than on central government28 and those responsibilities are in practice exercised through the agency of a social services committee.29 central government exercises some control (financial and otherwise), and the department of health from time to time gives general guidance on the discharge of those responsibilities. there are, no doubt, important advantages in this division of responsibility; but it has the inevitable consequence that ideology and practice for example, on such fundamental issues as to the extent to which rehabilitation of the child with his birth parents should be pursued, or on the factors relevant to the selection of 26. report of the matrimonial causes procedure committee (1985), para 3.2. 27. ibid., para. 2.24. 28. see s. m. cretney, supra n.23, p. 484 and the sources there cited. 29. local authority social services act 1970. 19 the denning law journal prospective adopters for a non-caucasian child may vary quite sharply between different parts of the country. the effect of a care order under the legislation currently in force is to vest in the authority the same powers and duties with respect to the child as his parent or guardian would have had.3d to this general principle, there are certain exceptions: the authority has no power to give parental agreement to adoption (although it may place the child for adoption), nor may it change the child's religion. as a result of the decision of the house of lords ina. v. liverpool c. cy the child's parents or guardians may not invoke the wardship procedure in an attempt to question the exercise of the statutory discretions. in effect, therefore, it will seem to many parents whose children have been taken into care under a care order that they have no effective procedure for questioning decisions perhaps most clearly to place their child for adoption which strike at the whole basis of their legal and factual relationship with the child. in contrast, had the child been in care as a result of an order made by the wardship court, no important decision relating to the child's funire could be made by the authority without a hearing by a judge at which the parent would be entitled to put his or her case. it is this perception which accounts for litigation such as that which resulted in the decision of the house of lords in re d (a minor}.32 a child had been born suffering from drug withdrawal symptoms resulting from his drug addict mother's deliberate and excessive taking of hard drugs during pregnancy. he needed (and received) intensive hospital care; and from the moment of his birth received the best possible care in hospital and from temporary foster parents. however, both the mother and father remained addicted to hard drugs. although neither claimed to be at present fit persons to have the care of their child, the question whether the local authority had made out the grounds for a care order was fought up to the house of lords. the parents argued that in fact throughout his life the child had been well treated; and that the legislation did not entitle the court to make an order merely because damage to the child's health or development was apprehended in the future. the house of lords not without some evident difficulty held that the statutory condition was, on the facts, satisfied; whilst still asserting that no order could have been made merely on the basis of apprehension about risk to the child at a future time. the true issue in this case was not whether the child should be in the care of his birth parents. it was simply whether he should be in the care of the local authority as the result of a care order made by magistrates under the children and young persons act 1969, or as the result of a committal order by the high court in the exercise of its wardship jurisdiction. this was not a sterile procedural dispute. on the contrary, if the care order were allowed to stand the parents would 30. child care act 1980, s. 10(1). 31. [1982] a.c. 363. 32. [1987] a.c. 317. 20 privatizing the family have no standing to contest a decision to place their child for adoption; whereas if the child were warded, they would always have the right to put their case to the wardship judge whenever an important decision fell to be made. it is a major criticism of the present law that it places some parents who see themselves threatened by the exercise of local authority powers in such a weak position. it is true that they have the right to apply to a magistrates' court if a local authority decides to terminate their right of access to their child; it is true that they have the rights enjoyed by all affected by public law decisions to seek judicial review. but there is all the difference in the world between having to persuade the court that a local authority's decision is so unreasonable that no authority properly directing itself could reasonably have taken it which is broadly speaking the test applied in judicial review and having the whole issue examined at length from first principles by an experienced family judge. in some respects, therefore, the law as it now stands seems to place parents in a position of dependency and weakness: dependency in being required to leave decisions about the upbringing of their children to the discretion of the courts, weakness in questioning decisions taken by an all-powerful local authority social workers' bureaucracy. it is therefore appropriate to examine the likely impact in these areas of the children bill measures. the booth committee33 was the first official body to attack the culture of dependency in relation to the private law of parent and child: the primary decision-making responsibility should in the committee's view rest with the spouses themselves34 ,and their "continuing joint responsibility" should be emphasised.35 the law commission's report on guardianship and custody36 is based on similar assumptions; and the substance37 of the commission's proposals is to be embodied in the new children act. in passing, it may be noted that the new legislation also follows the commission's advice that parental status should be defined in terms of "parental responsibility", so that, potentially misleading references to "parental" rights could be avoided.38 enthusiasm for this reformulation may be somewhat muted, however, when it is noted that the draftsman has defined this concep29 as "all the rights ... powers and authority which by law a parent of a child has in relation to a child and his property" a definition which seems to mirror the definition of 33. report of the matrimonial causes procedure committee (1985), para. 3.2. 34. ibid .. 35. ibid., para. 2.24. 36. review of child law (law com. no. 172, 1988). 37. there are many fascinating differences of detail between the provisions of the draft clauses annexed to the law commission's report and the clauses of the children bill as introduced in the house of lords: see, e.g., the law commission's assertion that the welfare of the child should be the "only" concern of the court, and the comparable provision of the bill that welfare be the "paramount" consideration (a formulation which the law commission had said would do "nothing to resolve the earlier confusion": law com. no. 172, para. 3.14). see also the text to note 42,. infra. 38. see review of child law (law com, no. 172, 1988), para. 2.4 et seq.. 39. clause 3(1). 21 the denning law journal "parental rights and duties" originally contained in the children act 197540 and which so nearly led the courts astray in the gillick case.41 . the new philosophy possibly the most fundamental manifestation of the substantial change of legislative approach is that the bill directs the court not to make any order with respect to a child "unless it considers that doing so would be better for the child than making no order at all,,42wording which is perhaps not so emphatic as the law commission's directive that no court should make an order unless to do so would be "the most effective way of safeguarding or promoting the child's welfare".43 possibly ministers considered that the form of words favoured by the law commission made the very assumption i.e. that it was reasonable to suppose that court orders could have such positive effects which the commission had been concerned to deny. another significant indication of the new philosophy is the compromise adopted in relation to the children's appointments system. the new provisions are tucked away inappropriately, but possibly wisely from the tactical point of view amongst the "minor amendments" in schedule 8 of the children biii.44parents are still to be required to give details of the arrangements which are to be made for the children, and the form whereby this is to be done is to be "improved".45 the court is then to consider in the light of the general preference for non-intervention already stated whether it should exercise its powers to make an order relating to the child; but it is only to be in "exceptional circumstances" that it is to withold the making absolute of the parents' divorce.46in this as in many other respects, much will depend on the terms of regulations to be made under enabling powers contained in the primary legislation; but it seems reasonable to suppose that the children's appointments system as we now know it will disappear. it is also worth noting that the new legislation greatly extends the powers of . parents to make private contracts regulating their legal position in relation to 40. s. 85(1); see now interpretation act 1978, s. 5 and sched. 1. 41. gillick v. west norfolk and wisbech area health authority [1985] 2 f.l.r. 738 (ca), particularly per parker l.j. at p. 743, et seq.. it can be argued that the childrens bill as drafted fails to give sufficient weight to the significance of the house of lord's decision in the gillick case which can broadly be summarised as establishing the general principle that a child has the right to take his own decisions, to the exclusion of his parents' involvement, if he has sufficient understanding of the issues involved. 42. clause 1(4). (this and all other references to the children bill are to the text as ordered by the house of commons on 23 november, 1988 to be printed; and as debated on second reading in the house of lords on 6 december. 43. clause 1(7) of the draft bill in appendix 1 to the law commission's review of child law (law com. no. 172, 1988). 44. para. 19. it will be interesting to see how much parliamentary anention will be given to this provision: it is sometimes found that scheduled provisions escape substantial scrutiny and comment in debate. 45. the detailed policy to which this provision gives effect is fully explained in the law commission's review ofchi/d law, supra n. 43,para. 3.10. 46. matrimonial causes act 1973 as it would be amended by children act 1989 sched. 8, para. 19. 22 privatizing the family children. the most striking example of this trend is in relation to illegitimate children.47 the father of an illegitimate child has, under the existing law, no parental rights; but (under provisions of the family law reform act 198748 which have not yet been brought into force) the court would have power to confer on him full parental status. under the new legislation, it will be possible for mother and father to achieve the same result by private (albeit formal) agreement49 a significant departure from the view taken by the law commission in 198250 under the influence of serious concern then felt about the pressures to which possibly vulnerable mothers might be subjected. the new legislation is however somewhat half-hearted in its commitment to the ideology of private ordering in this sensitive area: it seems that any such agreement will have to be "made in a prescribed form", and "checked by a county court" in "a simple paper procedure with a small standard fee".51 there must be some risk that this formality will become an empty and meaningless ritual; and only time will tell how effective such a check will prove to be in practice. the children bill contains two groups of provisions which undoubtedly shift the balance of power between parent and state, although the extent and even perhaps the precise direction of that shift may seem to some to be a matter of some doubt. care orders first, the old specific grounds for the making of care orders are replaced by new and perhaps more open-textured grounds. it is provided52 that the court may only make a care order if it is satisfied "(a) that the child concerned has suffered significant harm, or is likely to suffer such harm; and (b) that the harm, or likelihood of harm, is attributable to (i) the standard of care given to the child, or likely to be given to the child if the order were not made, being below that which it would be reasonable to expect the parent of a similar child to give to him; or (ii) the child's being beyond parental contro!." 47. it seems clear that, notwithstanding the law commission's expressed wish to avoid attaching labels to children born outside marriage (second report on i//egitimary, law com. no 157, para. 2.5), the classification of "legitimate" and "illegitimate" is still correct, and its continued use inevitable. thus, the terms "legitimate" and "illegitimate" are used no less than thirteen times in the short explanatory note annexed to the first commencement order made under the family reform act 1987: see s.1. 425/1988. the writer sees no reason to conceal his view that it would have been less unsatisfactory had the law commission adhered to the proposal made in its first report on i//egitimary (law com. no 118,1982, para 4.51), whereby the terms "marital" and "non-marital" would have been embodied in the statute book in order to avoid any need to continue to use the expression "illegitimate" with its connotations of unlawfulness and illegality. 48. s. 4. 49. clause 4. 50. law com. no. 118, 1982, para. 4.39. 51. law com. no. 172, 1988, para. 2.19. 52. clause 26 (2). 23 the denning law journal it is clear that the new provisions will enable the court to make an order on the basis of (well-founded) apprehension of harm to the child. there should be no repetition of re d c4 minor).53 there should be less need for local authorities to wish to invoke wardship (and in fact, as we shall see, their ability to do so will under the proposed legislation be severely restricted). but the new provisions will inevitably spawn much litigation. the question of whether the evidence is such as to justify a finding of "likely harm" may cause difficulties, and perhaps more important cases are likely to be more protracted in order to permit examination and cross-examination of witnesses. moreover, it does not require much imagination to envisage strenuous legal argument about the interpretation to be given to such expressions as a "similar" child, or indeed as to the aspects of parenting and personality which are properly to be taken into account in deciding on the reasonableness or otherwise of the expectation of standards of care. for these and other reasons, the fact that it will be possible to bring proceedings in the county court and high court as well as before magistrates is much to be welcomed although once again much is to be left to rules yet to be made (and, in practice, unlikely to receive much effective parliamentary scrutiny). these rules may stipulate that (for example) specified classes of proceedings may be initiated only 'in county courts or magistrates' courts; and the lord chancellor has indicated that care proceedings will normally have to be initiated in magistrates' courts, but that there is to be a power to transfer cases to higher courts if appropriate.54 at the time of writing, however, no indication has been given of the procedure for deciding on the appropriateness of a transfer; and the level at which such a decision is to be taken is obviously crucially important. the second major change made by the legislation in this context is severely to restrict the availabilityof the wardship jurisdiction to local authorities. in the first place, local authorities are debarred from invoking the wardship jurisdiction without leave of the court, which may only be given in narrowly defined circumstances. 55 secondly, care orders are only to be made if the statutory condition set out above is made out: it will no longer be sufficient for the court in divorce or other proceedings to be satisfied that there are "exceptional circumstances".56 53. [1987] a.c. 317. 54. see official report (h.l.) vol. 502, col. 494 (per the lord chancellor), the relevant powers are contained in clause 69(2) of the bill, notwithstanding the somewhat delphic remarks of the lord chancellor on the subject(contrast official report (h,l.) vol. 502, col. 495 with official report (h.l.) vol. 502, col. 537-38). prospects for a truly unified family court in the sense in which that term has been used by many advocates for the concept seem to have receded almost to vanishing point, if anything, the bill seems gready to enhance the involvement of the magistrates in children cases a result which would not have been consistent with the views expressed in what is still the most powerfully argued case for a unified family court the report of the (finer) committee on one-parent families, cmnd. 5629, 1974. 55. clause 8(2). 56. supra. 24 privatizing the family these provisions are controversial; and it may be that they will not survive in their pristine form. in particular, the provisions as drafted seem likely to increase the proportion of cases in which children are effectively subject to the very wide discretions of local authorities rather than to discretion of the wardship court, exercised after a full and careful hearing. moreover, there is a danger that insofar as such decisions can be questioned in judicial proceedings, the only forum available will be the lowest court in the judicial hierarchy the magistrates, who may not always have the resources (human and otherwise) to deal with the burden of work likely to be involved. however, there seems certain to be informed and influential opposition to the proposals as drafted; and the cynical may suspect tha.t the original version has been drafted in a deliberately (and it may even be thought provocatively) extreme way so as to permit concessions to be made during the bill's passage through parliamentalthough it seems unlikely that those concessions will extend to allowing the wardship procedure to be used as extensively as some judges experienced in family work would have wished.57 the extent to which the provisions restricting the availability of wardship will effectively shift the balance between parents and state, however, depends in part on the interpretation given by the courts to the care order conditions and in part on the allocation of cases to different levels of the judicial hierarchy. controlling the local authority the most striking feature of the wardship proposals is that those authorities who would wish to entrust sensitive and difficult issues to the wardship court will no longer be able to do so. in that respect, therefore, the legislation extends the powers of local authorities paradoxically to a greater extent than some authorities would have wished. however, the new legislation does. also contain a number of important provisions more consistent with what had been generally assumed to be its underlying philosophy designed to strike a better balance between the need to protect children ff(i)mharm and the need to allow aggrieved parents some effective • means of challenging local authority decisions. (i) no more parental rights resolutions first, the parental rights resolution procedure is to be abolished. not only does this mean that all decisions vesting parental authority in a local authority will have to be taken by a court, it also means that the mere fact that a child has been in local authority care for three years will no longer by itself enable the authority to step into the parents' shoes. 58 this and other related provisions must be regarded 57. see, e.g., per latey], r. v. london borough of newham. ex parte mel. (note) [1988] 1 f.l.r. 416. the proposals contained in the bill also seem difficult to reconcile with the recommendations of the report of the inquiry into child abuse in cleveland 1987, cmnd. 412, 1988 see particularly at para. 16.57-65. 58. cf the provisions of child care act 1980, s. 3(i)(d) (originally enacted by the children act 1975). 25 the denning law journal as diminishing the power of the state to intervene in what a local authority believes to be a child's best interests little more than a decade after such provisions were considered necessary to avoid children being left unnecessarily to drift in local authority care. (ii) restriaing place of safety orders secondly, the powers of local authorities to remove children from their parents under place of safety orders will be limited: such orders will not be capable of enduring for more than eight days (with the possibility of extension for one further seven day period); and parents will have improved rights of access and challenge in the col.irts.59 (iii) presumption of reasonable access to child in care thirdly, the legislation embodies the principle that a local authority must allow a parent "reasonable contact" with his child. the court will be able to specifythe details of the contact. conversely, the court may permit the authority to refuse contact if "it is necessary to do so in order to safeguard or promote the child's welfare.,,6o it will be noted that the word "necessary" is a strong one: presumably the authority would have to be prepared to justifyits wish to terminate contact as a preliminary to an adoption placement, and this might not always be easy to do. conclusion the proposed legislation is of potentially great significance in redefining the limits of state intervention in the private domain of family life, although it will be some time before its significance in this respect can be adequately assessed not least because in some respects it seems to adopt somewhat inconsistent philosophies. however, the bill is certainly to be welcomed at the technical level of simplifyingand rationalising the statute book. 59. see the provisions of part v of the children bill. the use of place of safety orders was much highlighted by the events in cleveland in 1987, for which reference should be made to the report of the inquiry into child abuse in cleveland 1987, cmnd. 412,1988. the impact of those events on opinion and legislative policy would require (and merit) separate and extended treatment. 60. clause 29. 26 177 denning law journal 2020 vol 32 p 177-190 comment apologies and the legacy of an unlawful application of terra nullius in terra australis stephen pitt-walker* * e-mail: stephen.pitt-walker@live.com.au 1 joseph conrad, heart of darkness (amazon classics, seattle, 2019, originally published 1902) 6. 2 for a summary of how english law was received in australia, amongst other countries, see bh macpherson, ‘the reception of british law abroad’ (2007) supreme court of queensland library, in wilfrid prest, ‘the reception of british law’ (2008) 29(2) adelaide law review 381, 381–4. 3 the ‘national apology’, made on behalf of the australian government, was made by the then australian prime minister, kevin rudd. see, australian government, apology to australia’s indigenous peoples (13 february 2008) < https://www.australia.gov.au/aboutaustralia/our-country/our-people/apology-to-australias-indigenous-peoples>. 4 julie cassidy, ‘unhelpful and inappropriate? the question of genocide and the stolen generations’ (2009) 13(1) australian indigenous law review 114; julie cassidy, ‘the stolen generations – canada and australia: the legacy of assimilation’ (2006) 11(1) deakin law review 131. ‘the conquest of the earth, which mostly means the taking it away from those who have a different complexion or who have slightly flatter noses than ourselves, is not a pretty thing when you look into it too much.’1 introduction the use of the legal fiction, terra nullius, as it was erroneously applied to terra australis, australia, as a legal doctrine, supported the british colonial power’s right to settle that territory. since then, many unspoken (as well as acknowledged) acts of structural and direct violence have been perpetrated against the first nations population in australia via the imposition, and later ‘reception’,2 of the legal system and laws of england, as well as the dominant socio-political system, that represented the british crown. february 13, 2020, marked the 12th anniversary of the so-called ‘national apology’ to first nations citizens in australia.3 while the apology particularly focused on the stolen generations,4 whose lives had been devastated by past 178 comment government policies of forcible child removal and first nations assimilation, it was also more broadly inclusive of other first nations-related deprivations, insensitivities and discriminations, as well as often genocidal policies and actions.5 this prompts, and ought to prompt, a reconsideration of issues regarding the treatment and predicament of australia’s first nations’ citizens and whether the apology was of real, practical value to those aggrieved. apology in the age of political apologies in her article non-apology in the age of apology, aliza organick observes that australia, one of four settler states that originally opposed the united nations declaration on the rights of first nations people (the declaration), ultimately endorsed it approximately 18 months after its adoption.6 this was also approximately 14 months after the ‘national apology’ was delivered. she argues that although australia’s apology expressed a measure of regret for past wrongs (and although australia thereafter endorsed the declaration) the apology did not embody the requisite features of a formal apology.7 organick’s argument is compelling, and this article’s central argument aligns with her broad proposition and utilises the elements she proposes that define political apologies. political apologies have become much more common since the end of the second world war, to the extent that the period of the past 25 years has become known as ‘the age of apology’.8 among other names, political apology has been variously termed state apology, reconciliation apology and collective apology.9 although these all vary in precise scope, relying on eneko sanz conception, organick proposes that a political apology’s main identifying features are that they relate to a political issue and are delivered by an appropriate political 5 for examples of such policies and actions see, shireen morris, ‘the torment of our powerlessness: addressing indigenous constitutional vulnerability through the uluru statement’s call for a first nations voice in their affairs’ (2018) 41(3) unsw law journal 629; martin flynn, ‘aboriginal interaction with the criminal justice system of the northern territory: a human rights approach’ (1998) unsw law td2; martin flynn, ‘genocide: it’s a crime everywhere, but not in australia’ (2000) 29(1) university of western australia law review 59; fiona allison, ‘a limited right to equality: evaluating the effectiveness of racial discrimination law for indigenous australians through an access to justice lens’ (2013/2014) 17(2) australian indigenous law review 3. 6 aliza gail organick, ‘non-apology in the age of apology’ (2019) 31 denning law review 149, 155. 7 ibid 156–7. 8 organick (n 6) 151–5. 9 ibid 152. the denning law journal 179 agent, such as a head of state or head of government.10 on this understanding, australia’s ‘national apology’, delivered by the then australian prime minister, kevin rudd, fulfils these first criteria. however, further elements are required to be met before a political apology may claim legitimacy. these are that it must include compensation to the aggrieved party, responsiveness to specific requests of the community and a commitment to change past hurtful behaviours.11 as organick states, ‘an apology that lacks these essential details…[may be] defined as a non-apology…and deemed fundamentally flawed’.12 it is to these criteria that this article now turns its attention. given that, from a pragmatic perspective, the australian government and population tend to perceive the ‘national apology’ as a substantive apology, this article examines whether (even if it is perceived as a formal apology) such apologies of themselves provide effective redress at law, and/or, whether such apologies create normative consequences in either the domestic or international jurisdictions. the article advances the argument that, inter alia, without any accompanying appropriate compensation, putative formal apologies volunteered by nation-state governments (such as that made in australia) for the mistreatment of their first nations’ citizens fail to reach the threshold of adequacy as a remedy in either domestic or international law. on their own, apologies are inadequate to create normative legal or other consequences. further, it is proposed that apologies are arguably a way for governments to avoid compensating and/or including first nations’ peoples. the issues of first nations rights, rights law, treaty, land rights and first nations inclusion in the constitution of australia, while contiguous and relevantly connected, are not examined in detail in this article. several governments, including australia’s, have apologised to first nations persons for harms inflicted by the impost of colonialism. contrary to views that suggest otherwise, it is proposed here that, while imperfect, the preferable method of redress for past wrongs committed by states’ against first nations peoples is that adopted in countries such as canada and new zealand where tangible compensation has been paid in legal remediation of, and reparation for, the acknowledged wrong doing. in these jurisdictions, governments recognise not 10 eneko sanz, ‘national apologies: mapping the complexity of validity’ (the centre for peace and conflict studies, april 2012) <http://www.centrepeaceconflictstudies.org/ publications/browse/national-apologies-mapping-the-complexities-of-validity/> 3, 7, cited in aliza gail organick, ‘non-apology in the age of apology’ (2019) 31 denning law review 149, 152. 11 ibid. 12 ibid 153. 180 comment only land rights but also provide pecuniary compensation13 for past violations of first nations rights.14 it is also suggested that, by parallel circumstance, the german bundes government appropriately and meaningfully made substantive and effective redress to holocaust victims beyond mere apologies through the payment of monetary compensation to oppressed persons or their heirs. in contrast to the german example, and rebutting a major counter perspective at law, it is proposed that merely saying ‘sorry’ to first nations australians has had little practical effect in providing them with redress. accordingly, it is submitted that apologies serve a negligible purpose in the development of international or municipal law and/or providing normative legal consequences in either jurisdiction. what role does apology play as a remedy? in new south wales (an australian jurisdiction), apology may be legally defined as ‘...an expression of sympathy or regret, or of a general sense of benevolence or compassion, in connection with any matter whether or not the apology admits or implies an admission of fault in connection with the matter’.15 prue vines argues that if an apology is tendered to an aggrieved person or persons, they are less likely to engage in litigation.16 generally, therefore, the normative (measurable or evaluative) consequence of apologies is that once an apology has been given, nothing more needs to be done, even if something more ‘ought’ to be done.17 as a matter of evidentiary value, this appears to be the principle upon which the 13 it is acknowledged that in the instances, such as with members of the stolen generations some compensation has been paid, see nsw government, aboriginal affairs, stolen generations reparations scheme and funeral assistance fund <https://www. aboriginalaffairs.nsw.gov.au/healing-and-reparations/stolen-generations/reparations scheme>. 14 see for example, tsilhqot’in nation v british columbia [2014] scc 44. in new zealand, there is an office of treaty settlements which negotiates claims with maori. for a list of negotiated claims with pay-out values, see ministry of maori development, treaty settlements 2 <https://www.tpk.govt.nz/mi/a-matou-mohiotanga/business-and-economics/ tribal-assets/online/2>. 15 civil liability act 2002 (nsw) s 68. 16 prue vines, ‘the apology in civil liability: underused and undervalued?’ (2013) 115 precedent 28. 17 here, i share the criticism of legal language used as normative discourse made by luis duarte d’almeida, ‘legal statements and normative language’ (2011) 30 law and philosophy 167, 173. the denning law journal 181 australian government has relied since its apology in 2008, after which little of real value has been delivered either in terms of compensation or policy reform. first nations and the efficacy, or otherwise, of apologies notwithstanding the popular rise of the political apology, many first nations’ people have refused to accept apologies, viewing them as governmental publicity opportunities.18 for example, the leading canadian first nations grand chief refused to join visiting british royalty at a symbolic event at which an apology was to be offered. the grand chief, leader of 115 canadian first nation tribes, described the event as an ‘empty-gesture’ ceremony.19 in denouncing this symbolic event, the chief opined, ‘[w]ith the deepening poverty of our communities, remembering the murdered first nations women, girls and the ongoing negligence of first nations child welfare policies across this country, in good conscience, i cannot participate in [this] ... ceremony’.20 it is apparent that the supreme court of canada, in line with the grand chief’s statement, equally does not support empty gestures, as it has recognised native title (known as aboriginal title in canada) in a series of cases.21 however, in support of the requirement for compensation rather than empty gestures, in haida nation v minister of forests,22 the canadian supreme court went further than the issue of land rights by recognising that there was indeed a broader crown obligation to first nations people; the ruling acknowledging that the obligation is sometimes perceived to be a generalised overarching fiduciary one.23 a reasonable reading of several other canadian legal authorities indicates that the fiduciary obligation to act honourably towards indigenous peoples, while unconventional, supports the central argument in this article by creating a requirement for far 18 gary foley, ‘duplicity and deceit: rudd’s apology to the stolen generations’ (2008) 36 melbourne historical journal 1 . 19 ashifa kassam, ‘canada first nations chief won’t join uk royals for “empty gesture” ceremony’, the guardian (international, 27 september 2016). 20 tony jones, ‘indigenous leader boycotts black rod event attended by prince william in protest of canadian government’, the independent (canadian edition) 27 september 2016. 21 these cases include guerin v r [1984] 2 scr 335 (supreme court of canada); r v sparrow [1990] 1 scr 1075 (supreme court of canada); delgamuukw v british columbia [1997] 3 scr 1010 (supreme court of canada). 22 [2002] 2 cnlr 212. 23 jamie dickson, the honour and dishonour of the crown: making sense of aboriginal law in canada (purich publishing limited, 2015). 182 comment greater recognition of the rights of dispossessed persons than a mere apology without any accompanying compensation.24 as already mentioned, several governmental apologies have been made to first nation peoples. for example, […] the new zealand government has made specific apologies on two different occasions, the canadian government has apologised for its role in the administration of special residential schools, the united states government has apologised for its overthrow of the kingdom of hawaii, and the norwegian king apologised for his state’s past policies....25 in respect of these apologies, however, it is proposed that, by example, the apologies made by the new zealand government would have been relatively ineffectual had they not been accompanied by the award of nz $175 million in fishing rights to the maori people, resulting from a commercial settlement reached after the treaty of waitangi (amendment) act 1985. that act was paramount in empowering the waitangi tribunal to hear claims of treaty breaches by the crown since 1840.26 this ensured that the apology was far more effective than words alone, as it provided compensation, accounted for community aspirations and sought to change past harmful policies. a more effective model notwithstanding the restoration of some degree of dignity that may be achieved through an apology, a better form of redress is reflected in that made by various german governments to victims of the holocaust and their families. this is represented in the conference on jewish material claims against germany. the total global allocations for 2019 from this tribunal are usd $564 million, and more than usd $70 billion has been paid in compensation since 1951. currently, 24 see guerin v r [1984] 2 scr 335 (supreme court of canada); r v sparrow [1990] 1 scr 1075 (supreme court of canada); delgamuukw v british columbia [1997] 3 scr 1010 (supreme court of canada). 25 coral dow and john gardiner-garden, indigenous affairs in australia, new zealand, canada, united states of america, norway and sweden (australian parliamentary library social policy group background paper 15, 6 april,1998) <https://www.aph.gov. au/about_parliament/parliamentary_departments/parliamentary_library/publications_ archive/background_papers/bp9798/98bp15>. 26 jason de santolo, ‘responses to the “sealord deal” – fishing for insights’ (2004) 4 journal of indigenous policy 49, 52. the denning law journal 183 this covers in-home care for frail aged persons and monthly pensions.27 compensation is made to both individuals and organisations that provide food, medicines and other services to survivors.28 unlike australia’s ‘national apology’, this german apology meets the major elements required to declare such an apology legitimate. it is also notable that most of the monies were paid before germany’s chancellor had delivered an apology to the jewish people in a speech in the israeli knesset in 2018. this signifies that redress is more substantively achieved by the payment of compensation than through the delivery of an apology in words alone.29 by comparison, the australian government’s apology to first nations persons demonstrates how an apology may be politicised, and by degree hijacked for the purposes of a political agenda, especially when it does not accompany any offer of compensation.30 in such circumstances there is no reason to believe that the apology is anything but an empty gesture. this is borne out in the australian case by the many failures to deliver meaningful improvement in first nations people’s circumstances through effective engagement and/or policy initiatives.31 consequently, such an apology does not reach the threshold of an effective remedy at law. it follows that, if an apology is not given in unqualified terms and backed by material compensation that provides a practical remedy, it is ineffective. lending support to this proposition, gary foley wrote at the time of the rudd government’s apology in australia, [t]he only thing that apologies do as far as i can see, is at the very most… [make admission of] a wrongdoing. which gives minimal comfort to the wronged. unless it’s accompanied by some sort of meaningful form of compensation or reparations for past wrongs that have been committed, then it is a farce.32 27 sarah levi, ‘claims conference to increase holocaust survivor funding by $87 million’ (the australian, 10 july 2018). 28 abc, ‘germany to compensate people who fled from the country as children to escape nazis’ (abc online, 17 december 2018) < https://www.abc.net.au/news/2018-1217/germany-to-pay-compensation-to-children-who-fled-from-nazis/10628274>. 29 anshel pfeffer and shahar ilan, ‘speaking in german, merkel gets standing ovation in knesset haaretz’ (english edition, jerusalem) 19 march 2008. 30 foley (n 18). 31 for examples of failure to deliver policies and initiatives directed towards improving the circumstances of indigenous persons see organick (n 6) 156–7. 32 foley (n 18). 184 comment foley’s position also accords with organick’s view that an apology must contain the elements mentioned earlier in this article to be legitimate, otherwise it may be described as a non-apology.33 the ‘australian non-apology’ was followed in 2017 by the uluru statement,34 which called for constitutional and other forms of recognition, inclusion and policy change in respect of the circumstances of australia’s first nations peoples. the rationale for, and drivers of,35 this demand for more than a mere apology, resolved at a ‘constitutional convention’ by elders and leaders of australia’s first nations peoples, demonstrates that, absent accompanying compensation, the apology has been ineffective. this supports the central proposition of this article that apologies alone are ineffective and that they, without accompanying compensation, ought not create normative consequences at municipal or international law. why did the australian government apologise? foley argues that apologies often are made to avoid liability, or at least limit further liability.36 many apologies are actually made with an express disclaimer of liability, exemplified by the us case examined below.37 accordingly, while they may make good political pageantry, apologies (absent accompanying compensation and frameworks for implementation) are practically ineffective as a remedy. in the australian context, foley argues that the apology to the stolen generations was something that enabled the ‘australian people to pat themselves on the back and delude themselves into thinking that they’d done something significant for the aboriginal people, which in fact they [had not]’. he generally views apologies as a duplicitous means of appeasing consciences, while delivering little of real value to the aggrieved either domestically or internationally. apologies, he argues, give both domestic and international stakeholders further excuse for not having expressed concern or acted to remediate the circumstances of the aggrieved parties sooner. this position is echoed in similar terms by chiara lawry, who 33 organick (n 6) 156. 34 from the heart, ‘the uluru statement’ (2020). <https://fromtheheart.com.au/ulurustatement/the-statement/>. 35 daniel mckay, uluru statement: a quick guide (research paper, parliamentary library, parliament of australia, 19 june 2017). <https://www.aph.gov.au/about_ parliament/parliamentary_departments/parliamentary_library/pubs/rp/rp1617/quick_ guides/ulurustatement>. 36 organick (n 6) 156. 37 prue vines, ‘apologising to avoid liability: cynical civility or practical morality?’ (2005) 27(3) sydney law review 483, 485. the denning law journal 185 remonstrates at the lack of reparations paid to aggrieved first nations persons in australia.38 in support of the above argument, foley and lawry use the example of the us ‘apology’ (non-apology according to organick),39 secreted in s 8113 of the department of defense appropriations act 2010 (usa), to demonstrate the meaninglessness of apologies. this provision acknowledges ‘that there have been years of official depredations, ill-conceived policies, and the breaking of covenants... regarding indian tribes […together with] many instances of violence, maltreatment, and neglect inflicted on first nations people by citizens of the [usa]’. however, the same provision also contains a disclaimer that it neither ‘authorizes nor supports any claim against the [usa]’ by first nations persons for such acts.40 it is submitted that this apology both legislatively deprives the common law right of first nations people to justice by excluding liability or actions for compensation for acknowledged wrong doing, and, additionally, is an expression of disdain for the first nations people of the us that undermines the earlier-stated apology. besides the restoration of a modicum of dignity, the international law commission’s draft articles on state responsibility41 declare that, in addition to payments of compensation for an international wrong, a formal apology may also be offered as satisfaction. the implication being that, as in the above-mentioned german case of compensation being paid prior to an apology being offered to the jewish people generally and holocaust victims specifically, the apology ought to follow the payment of substantive compensation for it to reach the threshold of an effective remedy at law. following this line, george barrie posits that, pertaining to past wrongs, an apology can formally ‘set the record straight’ where a political acknowledgement is needed and serves as a starting point for new government policies, as evidenced in south africa post-apartheid.42 nonetheless, whichever follows which, barrie 38 chiara lawry, ‘moving beyond the apology: achieving full and effective reparations for the stolen generations’ (2010) 14(2) australian indigenous law review 83. 39 organick (n 6) 164. 40 department of defense appropriations act 2010 (usa) s 8113 (2)(b). 41 international law commission, draft articles on responsibility of states for internationally wrongful acts, 53rd sess, (23 april–1 june and 2 july–10 august 2001), supplement no. 10 (un doc a/56/10). 42 george barrie, ‘accepting state responsibility by means of an “apology”: the australian and south african experience’ (2013) 46(1) comparative and international law journal of southern africa 52; this is also referenced by organick (n 6) 156. 186 comment indicates that there is a need for compensation to accompany apologies for them to be effective as a remedy at law.43 as detailed below and noted by organick,44 the australian example demonstrates the likelihood that new, aspirational or remedial policies are often not pursued post-apology. therefore, on weight of evidence, the australian apology, and apologies in general, without accompanying compensation or policy-responsiveness to first nations community requests, are ineffective as a remedy. the first nations experience since the australian government’s apology the following examination of australia’s first nations incarceration rates provides a measure of the circumstances of australia’s first nations citizens over time, as well as a comparison to first nations incarceration rates in other jurisdictions. this affords some indicia by which the government may be judged, against its stated aim of improving the circumstances of first nations australians. in 1991, 16 years before the australian government’s apology, first nations australians were less than eight times more likely to be imprisoned than the non-first nations population. however, five years after the rudd government’s apology, on 30 june 2012, australian prisons held 29,383 inmates.45 first nations prisoners, at 27 per cent of that total, represented over 10 times their proportion of australia’s overall population.46 accordingly, the proportion of first nations prisoners to the overall population increased by around 30 per cent between 1991 and 2012,47 and 1.9 per cent of the entire australian first nations adult population was imprisoned.48 thalia anthony explains that the input of first nations elders into the sentencing process during the same period, at least in australia’s northern territory, was reduced to the point of virtual nonexistence. she proposes that this 43 ibid. 44 organick (n 6) 152. 45 australian national council on drugs, ‘an economic analysis for aboriginal and torres strait islander offenders: prison v residential treatment’ (australian national council on drugs, 2013) <http://www2.deloitte.com/content/dam/deloitte/au/documents/ finance/deloitte-au-fas-prison-vs-residential-treatment-240914.pdf> viii. 46 ibid. 47 robert tumeth, ‘is circle sentencing in the nsw criminal justice system a failure?’ aboriginal legal service (nsw/act) 7 june 2011. 48 chief magistrate hilary hannam, ‘aija indigenous justice conference current issues in delivering indigenous justice: challenges for the courts’, adelaide, 18–19 july 2013. the denning law journal 187 deliberate reduction in culturally disposed justice mechanisms contributed to increased rates of incarceration.49 elsewhere, anthony and co-author elena marchetti affirm that first nations canadians are over-represented at a nine times greater rate than the overall canadian population, and new zealand’s maori peoples are overrepresented by a factor of 3.5.50 compared to these states’ australia’s first nations population is the most over-represented incarcerated group. exacerbating this issue, the kinds of innovative approaches to sentencing51 discussed by kathleen daly and marchetti, published five years after the ‘national apology’, have not been implemented and little has been done to create restorative, diversionary paths to ameliorate first nations over-representation in australian prisons.52 this demonstrates that first nations australians are significantly worse off since the apology, as well as being worse off than many first nations counterparts in other jurisdictions. policy and funding dimensions intrinsically connected to the above issue is the failure of the australian government’s public policy and spending programs, designed to improve the circumstances of first nations australians. as a simple calculation, 27 per cent of the amount spent some eight years ago in australia’s northern territory prisons alone amounts to over aud $27.5 million.53 an investment of some part of this sum in more appropriately targeted early intervention and diversionary programs54 is likely to have delivered the sort of opportunities that relieve the disadvantages that 49 thalia anthony, ‘two laws: indigenous justice mechanisms in context’ (2015) 18(1) journal of australian indigenous issues 99, 110–1. 50 elena marchetti and thalia anthony, ‘sentencing indigenous offenders in canada, australia, and new zealand’, (2016) university of technology sydney law research series 27. 51 diversionary and alternative and/or dual cultural criminal sentencing and management methods. 52 kathleen daly and elena marchetti, ‘innovative justice processes: restorative justice, indigenous justice, and therapeutic jurisprudence’ in marinella marmo, willem de lint, and darren palmer (eds.), crime and justice: a guide to criminology (4th edn, lawbook co 2012) 9. 53 australian national council on drugs, (n 43). 54 this is foreshadowed by the national indigenous reform agreement, part of the intergovernmental agreement on federal financial relations between the commonwealth, the states and the territories <http://www.federalfinancialrelations.gov.au/content/npa/ health/_archive/indigenous-reform/national-agreement_sept_12.pdf> [7]. 188 comment lead to poor parenting, domestic violence,55 unemployment56 and general poverty.57 these are all factors that contribute to the over-representation of first nations persons in the australian prison system. in this respect, the closing the gap report indicates that the amelioration of these difficulties necessitates more than a combination of an apology, un-targeted funding and/or imprisonment.58 australian first nations senator, patrick dodson, proposes that spending without any clear aims will not solve the above problems, and argues that multi-faceted first nations inclusion in the polity is required for the amelioration of their circumstances.59 this together with appropriate compensation and mechanisms for disbursement are required for a genuine resolution. the above cycle of disadvantage and ‘structural violence’60 is congruent with the arguments expounded by johan galtung and later by don weatherburn.61 extending these arguments, weatherburn argues that ‘[t]he cure for [disproportionately high first nations rates of] crime is not a rearrangement of the economic fabric of society alone’.62 rather, it will rely on a ‘rearrangement of 55 tara mcgee, rebecca wickes, jonathan corcoran, william bor and jake najman, ‘antisocial behaviour: an examination of individual, family, and neighbourhood factors’, trends & issues in crime and criminal justice, research paper no. 410 (australian institute of criminology, 2011). 56 john braithwaite bruce chapman cezary a kapuscinski, ‘unemployment and crime: resolving the paradox’, final report to the criminology research council (australian national university, 1992) 57 this is what weatherburn and lind call ‘economic stress’ in don weatherburn and bronwyn lind, ‘poverty, parenting, peers and crime-prone neighbourhoods’, trends & issues in crime and criminal justice, research paper no. 85 (australian institute of criminology, 1998); diane smith, ‘redfern works: the policy and community challenges of an urban cdep scheme’, caepr discussion paper no. 99 (centre for aboriginal economic policy research, 1995). 58 national indigenous reform agreement, (n 52). 59 patrick dodson, launch of the aboriginal and torres strait islander social justice commissioner’s: social justice and native title reports for 2001 (australian human rights commission 2002). 60 david p barash, introduction to peace studies (wadsworth publishing 1991) 8–9. 61 don weatherburn, economic adversity and crime, trends & issues in crime and criminal justice, research paper no. 40 (australian institute of criminology, 1992); don weatherburn and bronwyn lind, poverty, parenting, peers and crime-prone neighbourhoods, trends & issues in crime and criminal justice, research paper no. 85 (australian institute of criminology, 1998). 62 ibid. the denning law journal 189 the thinking of potential offenders’, disrupting the above cycle by investing in early intervention. the statistical analysis above demonstrates that a mere apology has been insufficient to achieve the kinds of early intervention that would have very likely led to a reduction in the proportion of first nations persons in australian prisons. in weatherburn’s parlance, this could have been achieved through a ‘rearrangement’ in the thinking of australia’s first nations population, via appropriate engagement, early intervention and targeted spending. native title rights as compensation in australia, native title rights which might be perceived by some as an extended form of apology,63 do not, and cannot, constitute compensation. this is because, unlike in canada,64 in australia, they are not a recognised form of property in the blackstonian sense. this is despite that compensation can now be awarded for the extinguishment of native title on a case-by-case basis.65 the concept of property was defined in milirrpum v nabalco,66 as including the owner’s ‘... right to exclude others and the right to alienate’; apropos native title does not give an individual the right to exclude or alienate others. furthermore, the native title act 1993 does not allow an individual to exercise non-commercial rights.67 as such, these features of native title in australia deny first nations persons effective compensation. it is also worthy of note that some researchers also reject treaties as mechanisms for preserving first nations rights and access to compensation, arguing that ‘treaties, deeds of settlement and agreements (or even clear judicial pronouncements) do not hold secure the rights of first nations peoples when such rights remain subject to the [will] of parliament’.68 63 shireen morris, ‘re-evaluating mabo: the case for native title reform to remove discrimination and promote economic opportunity’ (2012) 5(3) land, rights, laws: issues of native title 1. 64 tsilhqot’in nation v british columbia [2014] scc 44. 65 northern territory v mr a. griffiths (deceased) and lorraine jones on behalf of the ngaliwurru and nungali peoples [2019] hca 7 (13 march 2019) (kiefel cj, bell, gageler, keane, nettle, gordon and edelman jj). 66 (1971) 17 flr 141, 171. 67 yanner v eaton (1999) 201 clr 351. 68 jason de santolo, ‘responses to the “sealord deal” – fishing for insights’ (2004) 4 journal of indigenous policy 49, 62; michael dillon, policy implications of the timber creek decision, centre for aboriginal economic policy research anu college of arts & social sciences caepr working paper 128/2019. 190 comment conclusion in this article it is contended that only measures that help achieve a ‘rearrangement of the thinking’ (raising the dignity, pride, independence and self-belief) in first nations people through the payment of effective compensation will aid in the reduction of the relative disadvantage caused by the damage inflicted by forced colonial subjugation. the notion that any substantive advantage is delivered through ceremonies at which apologies alone are delivered by inheritors of a colonial power structure is rejected. additionally, policies, treaties and settlements that lack an appropriate framework for implementation, first nations engagement and involvement in policy making, even when aimed at providing a better family life and socio-economic outcomes for first nations persons, provide insufficient remedy for those dispossessed by colonialism. based on the evidence of the decline in the circumstances of australia’s first nations peoples, especially when compared to other first nations peoples experiences from outside australia, it is all but impossible to believe that apologies proffered without accompanying targeted and substantive compensation packages will have anything but negligible practical effect. specifically, in relation to australia’s ‘national apology’, they in fact arguably mislead first nations and non-first nations citizens to the perception that something of practical and legal value has been delivered by their government when in fact it has not. ultimately, because apologies without any accompanying targeted compensation are ineffective, they should not be regarded as a remedy in municipal or international law, nor do they create normative consequences in the australian (or international) jurisdiction. the question begging is one of great significance for the australian political and legal systems, government, electorate and society. will australia’s heart of darkness prevail, or will the nation’s conscience prove dr martin luther king jr’s dictum that in the long run the arc of history bends towards justice? domestic contribution and constructive trusts: the canadian perspective mary welstead* early in november 1986, rosa becker, the respondent in pettkus v. becker, 1 committed suicide after a twelve year legal battle.2 after six years oflitigation the supreme court of canada, in 1980, had awarded her $150,000 under a constructive trust. she never received payment because the appellant lothar pettkus claimed that he did not accept the supreme court's ruling. he proceeded to "use every legal tree in the forest of law,,3 to evade rosa becker's attempts to enforce her constructive trust. on november 5th 1986 she finally gave up her fight. this article commemorates rosa becker. she may only have won a pyhrric victory for herself but she succeeded in changing the law of trusts of property, in the familial context, in canada. in so doing, she prepared the way for the recognition of domestic contribution as giving rise to a remedial constructive trust. no other commonwealth jurisdiction has accepted domestic contribution a/one as grounding a successful plea of a constructive trust.4 the acceptance by the canadian courts of the relevance of domestic contribution in trusts of property in the familial contexts has developed over a period of some thirteen years.6 the origins of this development are to be found in the dissenting judgement of laskin j. in murdoch v. murdoch.7 laskin j.'s views were approved of by dickson j. in diaa, in rathwell v. rathwell.8 it was not, however, until pettkus v. becker9 that the canadian supreme court was able to • 1. 2. 3. 4. 5. 6. 7. 8. 9. of the school of law, university of buckingham. pettkus v. becker 117 d.l.r. (3d) 257. the montreal gazette, 11th november 1986, p.1 col.i. ibid. per gerald langlois, rosa becker's lawyer. see bums v. bums [1984]1 all e.r. 244. domestic contribution might be accepted as a relevant detriment if an express oral agreement exists and in that sense may give rise to a constructive trust: see grant v. edwards [1986] 2 all e.r. 426, at p.437 per sir nicholas browne-wilkinson v.c.. see also n.18, infra. the term familial is used to include all relationships involving emotional, financial and practical interdependancy; see [1979] 31 fam. law 244; [1980] g.l.j. 31. john l. dewar, [1982] 60 can. bar rev. 265. murdoch v. murdoch 41 d.l.r. (3d) 367, at p.377. rathwe// v. rathwe// 83 d.l.r. (3d) 289, at p.305. supra n.1. 151 the denning law journal escape from the confines of the intention based resulting trust and hold that the concept of the constructive trust based on the principle of unjust enrichment was accepted law in canada. five years later, the supreme court in sorochan v. sorochan1o held that the principle of unjust enrichment extended to domestic contributions. the intention based resulting trust prior to the decision of the supreme court in pettkus v. becker] 1 the canadian courts had adopted an artificially extended form of the purchase money resulting trust in the resolution of familial property disputes. in a strict sense this category of resulting trust does not require intention at all; it arises by operation oflaw.12 the principle upon which the purchase money resulting trust is based was stated in dyer v. dyerl3 by eyre c. b .. he accepted that, "the clear result of all the cases, without a single exception, is that the trust of a legal estate, whether freehold, copyhold, or leasehold; whether taken in the names of the purchasers and others jointly, or in the names of others without that of the purchaser; whether jointly or successive, results to the man who advances the purchase money.,,14 this resulting trust arises out of equity's presumption that bargains rather than gifts are intended in such circumstances. the person advancing the purchase money is presumed to have intended that the legal title holder should hold the beneficial title on trust for him. the presumption is rebuttable by evidence of a contrary intention. the purchase money resulting trust was extended to post acquisition payments provided that the payments were referable to the property. in gissing v. gissing, ]5 lord diplock recognised that it would be unreasonably legalistic to restrict the purchase money resulting trust to contributions made at the time of the acquisition of the property. he accepted that later financial contributions referable to the property could also lead to a resulting trust. a retrospective inference could be made from these financial contributions that the parties had intended to share the beneficial interest from the time of acquisition. 16 professor donovan waters has observed that this retrospective inference was, in fact, " ... a constructive trust approach masquerading as a resulting trust approach.,,17 he stressed the absence of a common intention, in the majority of cases, at the time the property was acquired. professor waters argued that the courts' discovery of an implied common intention from financial contributions was frequently a means of giving the wife a just and equitable share in the disputed asset. 10. sorochall v. sorochall 29 d.l.r. (4th) 1, at p.6. 11. supra n.1. 12. donovan waters, (1970) 16mcgi/l l.joum. 188; donovan waters, (1975) 53 call. bar rev. 366. 13. dyer v. dyer (1788) 2 cox eq. cas. 92, at p.93. 14. ibid. 15. gissillg v. gissillg [1971] a.c. 886. 16. ibid., at p.908 17. (1975) 53 call. bar rev. 366, at p.368. 152 domestic contribution and constructive trusts inevitably attempts were made to extend the resulting trust still further and include within its boundaries fact-situations in which a labour contribution or a contribution to general household expenditure had been made. the courts showed a marked reluctance to accept that these contributions could lead to an inference of a resulting trust. 18 if there was a separate agreement by the parties to share the beneficial interest in property the courts were prepared to accept that this type of contribution could give rise to a resulting trust. lord diplock in gissing v. gissini9 accepted that in circumstances of express oral agreements, "it has been assumed sub silentio that they provide for the spouse in whom the legal estate in the matrimonial home is not vested to do something to facilitate its acquisition, by contributing to the purchase price or to the deposit or the mortgage instalments when it is purchased upon mortgage or to make some other material sacrifice by way of contribution to or economy in the general family expenditure.,,2o the canadian courts claimed to follow the approach of lord diplock towards resulting trusts as formulated in gissing v. gissing.21 an examination of the case law prior to pettkus v. becke?2 suggests that this was not so. substantial labour contributions were accepted as giving rise to an inference of intention where there was no separate express agreement to share the beneficial interest. the majority decision in murdoch v. murdoch. it fell to the supreme court in murdoch v. murdoch23 to decide whether to extend the intention based resulting trust to contributions of non-domestic labour in the absence of a separate express agreement to share the beneficial interest in the property. the appellant wife, mrs murdoch, had lived and worked with the respondent, mr murdoch, for twenty-one years. during the greater part of that time they lived on ranches which were purchased in the sole name of mr murdoch. there was no express common intention on their part to share the beneficial interest. nor was there any substantial financial contribution at the time the disputed property was purchased from which such an intention could be inferred. the supreme court was prevented from accepting mrs murdoch's financial contribution as leading to an inference of a common intention because the trial judge had held that her contribution was a loan.24 mrs murdoch claimed that her substantial contribution of labour led to the inference that a common 18. see gissing v. gissing [1971] a.c. 886; pet/ill v. pettitt [1970] a.c. 777; burns v. burns [1984] 1 all e.r. 244; cf nixon v. nixon [1969] 1 w.l.r. 1676. 19. supra n.1s. 20. ibid., at p.90s; see also mcfarlane v.mcfarlane [1972] n.!. 59. it has been suggested that this type of trust is not a resulting trust but a failed express trust given effect by means of estoppel: see c. harpum, (1982) 2 oxfordjo. leg. stud. 277, at p.279, sir nicholas browne-wilkinson v.c., in grant v. edwards [1986] 2 all e.r. 426, at p.437, referred to such a trust as a constructive trust 21. supra n.1s. 22. supra n.1. 23. murdoch v. murdoch 41 d.l.r. (3d) 367. see also jacobsen, (1974) 20 mcgill l. journ. 308. 24. murdoch v. murdoch 41 d.l.r. (3d) 367, at p.380. 153 http://www.ingentaconnect.com/content/external-references?article=0143-6503(1982)2l.277[aid=7379171] http://www.ingentaconnect.com/content/external-references?article=0143-6503(1982)2l.277[aid=7379171] http://www.ingentaconnect.com/content/external-references?article=0143-6503(1982)2l.277[aid=7379171] the denning law journal intention existed between her and her husband that they should share the beneficial interest of the property. she relied on the judgment of the alberta court of appeal in trueman v. trueman.25 in that case it was accepted that substantial labour by a wife, which would have normally been done by hired hands or her husband, could give rise to a resulting trust of the family homestead. mrs murdoch's labour contribution would have appeared, to most people, to be substantial. she described her work as "haying, raking, swathing, mowing, driving trucks, and tractors and teams, quietening horses, taking cattle back and forth to the reserve, deworming, vaccinating, branding, anything that was to be done. i worked outside with him, just as a man would ... ,,26 mr murdoch had claimed that such labour was, "just about what the ordinary rancher's wife does".27 this view was shared by the majority of the supreme court. in the absence of a finding of a substantial labour contribution mrs murdoch's claim failed. by accepting that mrs murdoch's labour was that of an ordinary rancher's wife, the supreme court was able to distinguish the trueman case. the claim in trueman was for a share in the family homestead. the labour of the wife in that case was accepted as substantial and could therefore give rise to an inference of an intention to share in the beneficial interest of that homestead. in murdoch the interest claimed was a one-half share in all the property of a more substantial commercial enterprise. there was a marked reluctance by the supreme court to extend the resulting trust concept to commercial assets even where the family home was part of those assets. counsel for the respondent in murdoch had contended that in the light of the supreme court decision in thompson v. thompson28 the trueman case was wrongly decided. mardand j., giving the majority decision in murdoch, impliedly accepted that judson j. in thompson had left open the possibility that a substantial labour contribution could give rise to a resulting trust. judson j. had held that, in the absence of a financial contribution or other attributes of matrimonial partnership, there could be no resulting trust. it was thus open to the canadian supreme court at some future date to infer an intention to share the beneficial interest in property from other attributes of matrimonial partnership such as a substantial contribution of labour. the dissenting judgment of laskin j. in murdoch v. murdoch laskin j. in murdoch v. murdoch29 did not share the trial judge's appreciation of normalcy. he thought that mrs murdoch's labour could be characterised as nothing less than extraordinary. as such, it should be treated as no less significant than substantial financial contributions. however, to do that within the framework 25. trueman v. trueman 18 d.l.r. (3d) 109. see also smith v. ahone 56 d.l.r. (3d) 454. 26. murdoch v. murdoch 41 d.l.r. (3d), at p.380. 27. ibid. 28. thompson v. thompson 26 d.l.r. (2d) 1. 29. murdoch v. murdoch 41 d.l.r. (3d) 367, at p.377. see also re spears v. levy 52 d.l.r. (3d) 146. 154 domestic contribution and constructive trusts of resulting trusts was, according to laskin ]., quite artificial. he found it unnecessary to manipulate the resulting trust doctrine any further. he argued forcefully that the doctrine of constructive trusts based on unjust enrichment was to be preferred. this doctrine had neither been pleaded nor argued by the parties. the majority in murdoch did not respond to laskin ].'s views. his dissenting judgment was grounded on the supreme court decision in deglman v. guaranty trust co. of canada and constantineau30 which recognised the principle of unjust enrichment, for the first time, as good law in canada, in the context of quasi-contractual restitutionary claims. laskin]. held that mr murdoch had been unjustly enriched by mrs murdoch's substantial contribution of non-domestic labour. a constructive trust arose in these circumstances. laskin j. was not prepared to extend this principle to purely domestic labour. such labour might be said to be, "merely a reflection of the marriage bond,,3! and could not be translated easily into money's worth as could other types of labour. he was not prepared to view domestic activity as equal to strenuous physical labour. laskin ].'s judgment served the purpose of averting attention to the mythical nature of the intention based resulting trust in circumstances where the claimant's contribution took the form of substantial labour. the majority decision in rathwell v. rathwell a differently constituted supreme court in rathwell v. rathwelp2 considered, once again, the applicability of resulting trust principles in the familial context. until the breakdown of their marriage mr and mrs rathwell had worked together in a joint farming enterprise. when their relationship came to an end, mrs rathwell claimed a half-share in the property, the title of which was in the sole name of mr rathwell. there was the fortuitous distinction between murdoch v. murdoch33 and the rathwell case that mrs rathwell had made a limited financial contribution to the property. this contribution was made from the rathwell's joint account into which they had placed their wartime savings. in those circumstances the court was prepared to extend resulting trust principles to a fact-situation where the major contribution of the wife was substantial farm labour and domestic labour, albeit in a farm context. it recognised that mrs rathwell, "in addition to what might be called ordinary household tasks, took meals to the fields, helped move machinery, raised poultry, acted as back up driver for the bus contract, milked cows, grew a garden and did chores ... in the grain belt the kitchen was considered to be just as much an integral part of the operation as was the feed lot or the machine shed.,,34 the financial contributions 30. deglman v. guaranty trust co. of canada and c01lstantineau 3 d.l.r. 785. 31. murdoch v. murdoch 41 d.l.r. (3d) 367, at p.389. 32. rathwell v. rathwell 83 d.l.r. (3d) 289. 33. supra n.1. 34. rathwell v. rathwell 83 d.l.r. (3d) 289 at p.292. 155 the denning law journal alone would not have been sufficient evidence of an intention to share the beneficial interest. when both financial and labour contributions were taken together, the supreme court was prepared to infer that an intention to share the beneficial interest in the property had existed from the moment the rathwell family enterprise began. the judgment of dickson j. in rathwell v. rathwell dickson]. concurred in the judgment in rathwell v. rathwe1l35 based on resulting trust principles. however he seized the opportunity to elaborate the principles of constructive trusts based on unjust enrichment. relying on the view expressed by laskin]., in his dissent in murdoch, dickson]. maintained that this doctrine was as equally applicable as the doctrine of resulting trusts to the facts of rathwell. he declined to accept the criticism of the constructive trust approach expressed by the majority of the supreme court in rathwell. this part of dickson j.'s judgment was of course obiter. however it was an important stage in the development of the acceptance of the constructive trust based on unjust enrichment in canada. dickson j. recognised the inherent difficulties in finding an agreement between parties in familial circumstances. he explained that, "the property is acquired during a period where there is marital accord. when this gives way to discord, problems arise in respect of property division. there is seldom prior express agreement. there is rarely implied agreement or common intention, apart from the general intention of building life together. it is not in the nature of things for young married people to contemplate the break-up of their marriage and the division, in that event, of assets acquired by common effort during wedlock.,,36 the charge had been made against the intention based resulting trust as involving "a meaningless ritual in searching for a phantom intent.,,37 dickson j. accepted this charge. he then attempted to liberate the law from that meaningless ritual. he expressed the view that the doctrine of the constructive trust based on the concept of unjust enrichment was a more flexible doctrine than the intention based resulting trust. he explained that, "the hallmark of the constructive trust is that it is imposed irrespective of intention; indeed, it is imposed quite against the wishes of the constructive trustee. ,,38 dickson j. was not prepared to impose such a trust without a principled base. he maintained that three requirements were required for the doctrine of unjust enrichment to apply and elaborated them. first, there must be an unjust enrichment. second, there must be a corresponding deprivation to the claimant of the constructive trust. third, there must be an absence of any juristic reason such as a contract or disposition of law for the 35. rathwell v. rathwell 83 d.l.r. (3d) 289, at p.297. see also frank bates, (1979) nlj 288; mccamus and taman, (1978) 16 osgoodehall l. journ. 741; (1981) 2. 279 supreme court l. rev. 316. 36. ibid., at p.294. see also dwyerv. luve 67 d.l.r. (3d) 550. 37. rathwell v. rathwell 83 d.l.r. (3d) 289, at p.301. 38. ibid., at p.305. 156 domestic contribution and constructive trusts enrichment. if these requirements' were fulfilled, a constructive trust could be imposed, providing that a causal relationship could be shown between the disputed property and the unjust enrichment. dickson j. accepted that a causal relationship did exist in rathwell. he rejected the argument that the causal connection existed only between mr rathwell's unjust enrichment and a small portion of mr rathwell's property, including the family homestead. he reasoned that, "the rathwells worked and operated all of the lands as one farm, a family farm in which husband and wife shared control and operating responsibilities. although the causal connection may be clearer when the couples save money to buy the house in which they reside, there is no reason on the authorities, or in principle, why the application of a constructive trust should be confined to a homestead, or to a matrimonial home. the outcome in a matrimonial property case should not depend upon the nature of the property in dispute.,,40 the decision in pettkus v. becker constructive trusts based on unjust enrichment less than a decade after it was suggested that the adoption by the canadian courts of constructive trusts based on unjust enrichment could not happen the supreme court, in pettkus v. becker,41 imposed such a trust. a majority of the supreme court finally buried the resulting trust based on the artificial extension of the presumed resulting trust.42 dickson]., givingjudgment on behalf of s~ of the nine members of the supreme court, firmly established the doctrine of constructive trust based on unjust enrichment as part of the common law of canada. lothar pettkus, the appellant, was a bee keeper. he had lived with the respondent, rosa becker, for almost 20 years. they had lived frugally. rosa becker paid the rent, bought the food and clothing and paid for other living expenses. lothar pettkus was thus enabled to save his earnings. he eventually purchased a farm in his sole name, using those savings. he established a bee keeping business. rosa becker worked hard in this enterprise for 14 years but received no remuneration for her efforts. further properties were purchased in the name of lothar pettkus using moneys from the bee keeping business. after a deterioration in the relationship, rosa becker departed. lothar pettkus gave her $3,000, the car and 10% of the bee hives. she returned three months later and returned the gifts. it was agreed that they would resume their relationship, that a joint bank account would be opened and all receipts from the sale of honey could be deposited in that account. the parties built a new house on land previously purchased in lothar pettkus' name. 39. ibid.; c.f ruffv. sirobel86 d.l.r. (3d) 284. 40. ralhwell v. ralhwell 83 d.l.r. (3d) 289, at p.308. 41. peukus v. becker 117 d.l.r. (3d) 257. see also a. j. mclean, (1982) 16 u.b.c. l. rev. iss; (1982) 3. 361 supreme court l. rev.; bradley, (1982) fam. law 21. 42. ibid. 157 the denning law journal the cost of construction was paid for by moneys from the bee keeping business. the relationship between the parties did not survive. rosa becker finally departed the property. she claimed a half share in all the properties held in lothar pettkus' name. the ontario court of appeal varied the judgment at trial. it imposed a constructive trust on the respondent. rosa becker was to receive a half share in lothar pettkus' lands and the bee keeping business. he appealed to the supreme court. dickson j. was given the opportunity he had awaited since rathwell. he wished to end the judicial quest for that fugitive common intention which had so far been essential to found a resulting trust. the parties to the dispute in pettkus v. becker43 had no express common intention. the trial judge had found that rosa becker's contribution to the household expenses prior to the acquisition of the first property, "was in the nature of risk capital invested in the hope of seducing a younger defendant into marriage.,,44 dickson j. found this statement somewhat lacking in gallantry. ritchie j., in stronger terms, declared it to be gratuitously insulting. the ontario court of appeal had upheld the finding at trial that there was no common intention. ritchie j. was prepared to disregard that finding. in a majority judgment, he held that a resulting trust had arisen on the facts.45 but dickson j. was not prepared to overrule the finding of the trial judge and the ontario court of appeal. . there could not have been a more opportune moment for the introduction of the doctrine of unjust enrichment into familial property disputes. the fact-situation clearly demanded a remedy. the evidence was such that a resulting trust based on an inferred common intention from financial contributions, could have been imposed had it not been for the earlier findings of the trial judge and the ontario court of appeal.46 dickson j. reiterated the principles of unjust enrichment which he had laid down in diaa in rathwell. three requirements had to be satisfied to find an unjust enrichment, an enrichment, a corresponding deprivation and the absence of any juristic reason for the enrichment. for the court to impose the remedy of a constructive trust based on unjust enrichment there must be a casual relationship between the unjust enrichment and the disputed property.47 lothar pettkus had been enriched by rosa becker's nineteen years of unpaid labour. she had been correspondingly deprived during that time. the third requirement was fulfilled, according to dickson j., if "one person in a relationship tantamount to spousal prejudices herself in the reasonable expectation of receiving an interest in the property and the other person in the relationship freely accepts benefits conferred 43. ibid. 44. ibid. 45. ibid. 46. ibid. 47. ibid. see also d. waters, law oftmsts of callada, 2nd. ed. (1984). 158 domestic contribution and constructive trusts by the first person in circumstances where he knows or ought to have known of that reasonable expectation. ,,48 this third requirement implies that once a reasonable expectation comes to the knowledge of the legal title holder he is under a duty to refuse the contribution of the claimant. if he accepts it, he has acquiesced in the claimant's expectation and must give effect to it. the language in which the third requirement is couched is reminiscent of the english concept of proprietary estoppel. 49 it can reasonably be questioned whether this third requirement is little more than "common intention" by another name. if the claimant must have a reasonable expectation that she would receive an interest in the legal title holder's property and the latter must know or ought to have known of that expectation, there would appear to be a requirement of an implied common intention. for if the title holder does not reject the contribution he is implying that he shares the claimant's expectation concerning his property. the canadian courts have not accepted such an interpretation. a liberal view of this third requirement has been taken. the burden of proof is on the legal title holder to demonstrate that his enrichment, at the expense of the claimant, was without knowledge of the claimant's expectation.50 if he cannot satisfy this burden of proof the courts have been prepared to impute the necessary reasonable expectation even where the claimant has clearly not given any thought as to what was her expectation.51 by imposing a principled basis for the constructive trust, dickson j. was able to evade the accusations of administering palm tree justice which were levelled at lord denning m.r.'s attempts to impose constructive trusts where justice, equity and good conscience required it.52 once the concept of a constructive trust based on unjust enrichment had become accepted law in canada, the way was opened for the recognition of domestic contribution as unjust enrichment. the recognition of domestic contribution as unjust enrichment in sorochan v. sorochan the supreme court in sorochan v. sorochan53 finally recognised that domestic contribution could equally unjustly enrich a legal title holder as financial contributions. the parties in sorochan, mary and alex sorochan, had lived 48. pettklls v. becker 117 d.l.r. (3d) 257. if the relationship is of short duration the courts have not been prepared to grant a constructive trust remedy: see neiderberger v. met/mook 130 d.l.r. (3d) 353. where the relationship is actually spousal the parties are more likely to use matrimonial legislation (see r.sa 1980 c.152) but there remain circumstances where spouses may need to plead a constructive trust: see rankin, (1984) 17.72 duawa l. rev. 79. 49. a comparison of the doctrine of proprietary estoppel and the doctrine of unjust enrichment has been made in an unpublished thesis by the author of this article. 50. see girard, (1983) 28 mcgill l. jollm. 977, at p.l000. 51. this was indeed the case in pettklls v. becker itself. 52. see hodkinson, (1983) 47 conv. (n.s.) 420. 53. sorochan v. sorochan 29 d.l.r. (4th) 1. 159 the denning law journal together in a de ftao relationship for 42 years. they worked the family farm together and produced six children. mary sorochan did all the domestic labour associated with running the household and caring for the children. she also laboured long hours alone on the family farm whilst her defacto husband worked as a travelling salesman. the alberta court of appeal had reversed the trial judge's finding of a constructive trust in favour of the appellant. it held that there was no casual connection between her contribution of labour and the acquisition of the property by the respondent. judgment in the supreme court was given by dickson c. j. c. he did not differentiate between the appellant's domestic contribution to the household and her labour on the farm. he held that the respondent had derived a benefit from both types oflabour. according to dickson c. j. c., this benefit included valuable savings from having essential farm services and domestic work performed by the appellant without having to provide remuneration. dickson c. j. c. was reinforced in his refusal to differentiate between domestic contribution and other types of labour by the judgment of the alberta court of queen's bench in hennan v. smith.54 this case concerned a claim of a constructive trust based on a contribution of domestic labour alone. the alberta court held that the rendering of normal spousal services, by the woman, amounted to a valuable service which resulted in an enrichment to the man and a corresponding deprivation to the woman. in the sorochan case mary sorochan was equally held to have enriched her de faao husband to her corresponding deprivation. there was no juristic reason for the enrichment. the supreme court held that there was no obligation contractual or otherwise by mary sorochan to perform domestic or other labour. she had a reasonable expectation of receiving some benefit in return for her 42 years of labour. she had asked alex sorochan to marry her and to place property in her name. these two incidents convinced dickson c. j. c. that alex sorochan ought to have known that his defaao wife had a reasonable expectation of obtaining a share in the land. alex sorochan already owned the disputed land when mary sorochan went to live with him. it was, therefore, argued by counsel for the respondent, that there could be no causal relationship between her contribution of domestic and farm labour and his acquisition of the property. the supreme court rejected this narrow view as treating "a particular manifestation of the rule as the rule itself.,,55 it articulated a more general causal connection test. there should merely be a clear link between the contribution and the disputed asset. the courts must ask whether the contribution is sufficiently substantial and direct to entitle the plaintiff to a share of the property in question. cary j. a., in murray v. roty,56 a decision of the ontario court of appeal, had already employed the general causal connection 54. herman v. smith (198+) alta l.r. 2nd 90. see also lawrence v. lilulsey (1982) 21 alta l.r. (2nd) 141. 55. sorochan v. sorochan 29 d.l.r. 4th 1, at p.8. 56. murray v. roty 147 d.l.r. (3d) 438, at p.445. 160 domestic contribution and constructive trusts test. he explained that domestic activity maintains and preserves the property. in that sense it is substantial and direct. it also releases the legal tide holder from having to pay for domestic help, or from having to do it himself. the money or time saved permits him to improve and maintain his property either by payments to another, using the money saved, or by his own efforts, using the time saved.57 it would seem from the sorochan case that the principle of unjust enrichment has been broadened. will there be any relationship involving joint participation in a communal, familial venture which will be able to evade the imposition of a constructive trust? conclusion the canadian supreme court has finally recognized that domestic contribution is of equal value as financial contribution in trusts of property in the familial context. it is a realistic acknowledgement that living in a familial relationship is a common enterprise; each member contributes according to his abilities and to the needs of the other members of the household. if the common enterprise breaks down, its property will be distributed in accordance with those contributions; financial contributions will not be valued more highly than domestic contributions. lord simon of glaisdale, at one time president of the family division of the english high court, had already recognised, in an address to the holdsworth club of birmingham university, more than 20 years ago, that "men can only earn their incomes and accumulate capital by virtue of the division of labour between themselves and their wives. the wife spends her youth and early middle age in bearing and rearing children and in tending the home; the husband is thus freed for his economic activities. unless the wife plays her part the husband cannot play his. the cock bird can feather his nest precisely because he is not required to spend most of his time sitting on it. ,,58 the canadian supreme court has acknowledged the truth of lord simon's view of the co-operative nature of the familial enterprise. will other commonwealth jurisdictions be prepared to adopt the canadian approach to the constructive trust in the familial context?59 such an adoption would be a fitting memorial to the death of rosa becker on the legal battle ground of the family home. 57. cf a.j. oosterhoff, (1979) 58 can. bar rev. 356, at p.370. 58. "with all my worldly goods ... " (address to the holdsworth club, university of birmingham, 20th march 1964), p.32. 59. the new zealand court of appeal, in hayward v. giordani [1983] n.z.l.r. 140, at p.153 per mcmullin j., accepted that the canadian approach had much to commend it. it was able to find a constructive trust based on an express common intention and therefore found it unnecessary to consider whether the doctrine of unjust enrichment should be given a place in the law of new zealand. see also easton, (1982) 12 v.u. w.l.r. 159; goff and jones, the law of restitution, 3rd ed. (1986); (1983) conv. (n.s.) 420. 161 the denning law journal 199 denning law journal 2019 vol 31 pp 199-205 the standard of proof in disciplinary proceedings: solicitors regulation authority v sharif (2019) john hatchard* * professor of law, buckingham law school, and co-director of the university of buckingham centre for extractive energy studies. 1 solicitors regulation authority v sharif case 11805-2018 (solicitors disciplinary tribunal, 2019). 2 see p 194. the january 2019 ruling of the solicitors disciplinary tribunal in solicitors regulation authority v sharif1 highlighted the care that legal practitioners must take in order to satisfy their anti-money laundering obligations and the serious consequences of any failure to do so. this is the subject of a separate note in this issue of the denning law journal.2 however, the solicitors disciplinary tribunal applied the criminal standard of proof in the case. the question as to whether this is now the appropriate approach is the subject of this note. solicitors and the standard of proof at disciplinary hearings the current framework for dealing with disciplinary matters involving solicitors is as follows. in the case of less serious allegations, the solicitors regulation authority (sra) enjoys its own disciplinary powers and can impose a range of administrative penalties. the solicitors disciplinary tribunal acts as an appellate body. where its powers are considered insufficient, the sra brings the case to the solicitors disciplinary tribunal. thus, the tribunal acts as the first instance decision-maker in cases involving the most serious allegations relating to alleged professional misconduct against individual solicitors and firms. the tribunal has wide sanctioning powers including issuing a reprimand, imposing an unlimited fine or ordering the removal of an individual solicitor from practice. given the serious nature of the allegations against mr sharif concerning the failure to comply with his anti-money laundering obligations, the sra brought the case to the tribunal. as regards the standard of proof in disciplinary cases involving solicitors, there is a ‘mixed’ approach. in cases heard and determined by the sra, the civil 200 the standard of proof in disciplinary proceedings: solicitors regulation authority v sharif (2019) standard of proof (balance of probabilities) is applied. as regards the tribunal, section 46 of the solicitors act 1974 provides it with a wide discretion to regulate its own procedure. the longstanding position of the law society of england and wales (the law society) is that the tribunal should apply the criminal standard of proof (beyond reasonable doubt), a key reason for doing so being the ‘significant impact that adverse decisions can have on individuals subject to tribunal proceedings’.3 accordingly, the tribunal ruled that the sra was required to prove the allegations against mr sharif beyond reasonable doubt.4 this mixed approach can lead to a curious situation as illustrated by the case of solicitors regulation authority v solicitors disciplinary tribunal.5 here huseyin arslan was the subject of disciplinary proceedings before the sra. applying the civil standard of proof, the sra adjudicator found allegations of misconduct proved against mr arslan and ordered that a sanction be imposed. mr arslan then applied to the tribunal for a review of the decision of the adjudicator. in considering the matter, the tribunal applied the criminal standard of proof and on the facts revoked the order. in the high court, the sra sought to challenge the ruling of the tribunal, arguing, inter alia, that ‘the tribunal erred in law in holding that the criminal standard of proof should be applied’.6 leggatt j agreed with this submission. the court was then invited to give an opinion on the standard of proof to be applied by the tribunal when acting as a first instance decision-maker. leggatt j noted that ‘the climate and approach to professional regulation’7 had changed since the high court decision in re a solicitor8 and the privy council decision in campbell v hamlet (trinidad and tobago).9 in the former, lord lane in the divisional court held that the criminal standard was applicable where ‘what is alleged is tantamount to a criminal offence’.10 in campbell, a case also involving a legal practitioner, the privy council went further and held that ‘the criminal 3 the law society, ‘the standard of proof applied by the solicitors disciplinary tribunal’ (the law society, 2017) <https://www.lawsociety.org.uk/news/documents/ standard-of-proof-discussion-paper/> accessed 10 june 2019, para 2.3. 4 ibid., para 12. 5 solicitors regulation authority v solicitors disciplinary tribunal [2016] ewhc 2862 (admin). 6 ibid., para 23. 7 ibid., para 49. 8 in re a solicitor [1993] qb 69. 9 campbell v hamlet (trinidad and tobago) [2005] ukpc 19. 10 re a solicitor (n 9) para 81. <https://www.lawsociety.org.uk/news/documents/standard-of-proof-discussion-paper/ <https://www.lawsociety.org.uk/news/documents/standard-of-proof-discussion-paper/ the denning law journal 201 standard of proof is the correct standard to be applied in all disciplinary proceedings concerning the legal profession …’.11 leggatt j considered these decisions were ‘ripe for re-consideration’12 but declined the invitation to express a concluded view of the point in the instant case. sir brian leveson agreed with this approach but underlined the need for ‘a re-evaluation of the approach to disciplinary measures intended to protect the public’.13 on the facts, the high court quashed the decision of the tribunal. need for a change? the standard of proof used at disciplinary proceedings of professional bodies has been the subject of considerable discussion in recent years with a clear trend being towards the adoption of the civil standard. for example, the medical practitioners tribunal service, which is a statutory committee of the general medical council, has adopted the civil standard of proof where there are any disputed facts in disciplinary proceedings against medical practitioners.14 perhaps more significant is the position of the bar standards board (bsb). in 2017, the bsb issued a consultation paper entitled ‘review of the standard of proof applied in professional misconduct proceedings’15 in which it requested views from the profession and the public on the appropriate standard of proof in misconduct proceedings. at that time, the position was similar to disciplinary matters involving solicitors. thus the bsb’s professional conduct committee was empowered to deal with potential breaches of the bsb handbook by way of administrative sanctions, the applicable standard of proof being the civil standard. in more serious cases, the matter was referred to a disciplinary tribunal which applied the ‘criminal standard of proof when deciding charges of professional misconduct and in deciding whether the disqualification condition has been established’.16 11 campbell v hamlet (trinidad and tobago) (n 10) para 16. 12 ibid., para 49. 13 ibid., para 73. 14 see medical practitioners tribunal service, ‘resource for doctors: medical practitioners tribunals’ (mpts, 2019) <https://www.mpts-uk.org/-/media/mpts-documents/ dc11585-resource-for-doctors-medical-practitioners-tribunals_pdf-76539010.pdf> accessed 15 april 2019, p 4. 15 bar standards board, ‘review of the standard of proof applied in professional misconduct proceedings: consultation paper’ (bar standards board, may 2017) <https:// www.barstandardsboard.org.uk/media/1830289/sop_consultation_paper.pdf> accessed 15 april 2019. 16 disciplinary tribunal regulations 2014, regulation e143. https://www.mpts-uk.org/-/media/mpts-documents/dc11585-resource-for-doctors-medical-practitioners-tribunals_pdf-76539010.pdf https://www.mpts-uk.org/-/media/mpts-documents/dc11585-resource-for-doctors-medical-practitioners-tribunals_pdf-76539010.pdf https://www.barstandardsboard.org.uk/media/1830289/sop_consultation_paper.pdf https://www.barstandardsboard.org.uk/media/1830289/sop_consultation_paper.pdf 202 following the consultation, the bsb issued a response that carefully reviewed the issue of the appropriate standard of proof. the bsb concluded that: overall, we take the view, as expressed by some in favour of change, that it is self-evident that the civil standard provides better public protection given that it allows for sanctions to be imposed where it is more likely than not there has been a serious breach of an individual’s professional obligations. in principle, it seems difficult to argue against this without a clear justification for saying that the criminal standard provides better protection. we do not consider that such a clear justification exists.17 in november 2017, the bsb announced that it had decided to change the standard of proof in all cases to the civil standard with the chair of the bsb noting that this would be ‘an important step forward in the bsb’s ongoing work to modernise the regulation of the bar in the public interest’18 (emphasis added). accordingly, as from 1 april 2019 the bsb applies the civil standard of proof rather than the criminal standard in cases where barristers, and others regulated by the bsb, face disciplinary proceedings for professional misconduct.19 in 2017, the law society issued its own consultation paper20 seeking the views of solicitors on the subject. it recognised there was an inherent difficulty in classifying disciplinary proceedings as being civil or criminal in nature and noted 17 bar standards board, ‘bsb standard of proof consultation – bsb response’ (bar standards board, july 2017) <https://www.barstandardsboard.org.uk/media/1923922/ standard_of_proof_consultation_-_bsb_response_-_final.pdf> accessed 15 april 2019, para 38. 18 bar standards board, ‘civil standard of proof set to be adopted for professional misconduct proceedings for barristers’ (bar standards board, 24 november 2017) <https://www.barstandardsboard.org.uk/media-centre/press-releases-and-news/civilstandard-of-proof-set-to-be-adopted-for-professional-misconduct-proceedings-forbarristers/> accessed 10 june 2019. 19 somewhat confusingly in the case of veterinary surgeons, the royal college of veterinary surgeons disciplinary committee procedure guidance states that the standard of proof to be applied by the disciplinary committee is that specified in the (procedure and evidence rules) order of council 2004. see royal college of veterinary surgeons, ‘disciplinary committee procedure guidance’ (rcvs, 27 september 2013) <https:// www.rcvs.org.uk /document-library/disciplinary-committee-procedure-guidance/> accessed 10 june 2019, para 13: ‘the standard [of proof] is that the disciplinary committee should be “satisfied to the highest civil standard of proof, so that it is sure” (which is tantamount to applying the “criminal standard”)’ (emphasis in the original). 20 the law society (n 4). the standard of proof in disciplinary proceedings: solicitors regulation authority v sharif (2019) https://www.barstandardsboard.org.uk/media/1923922/standard_of_proof_consultation_-_bsb_response_-_final.pdf https://www.barstandardsboard.org.uk/media/1923922/standard_of_proof_consultation_-_bsb_response_-_final.pdf https://www.barstandardsboard.org.uk/media-centre/press-releases-and-news/civil-standard-of-proof-set-to-be-adopted-for-professional-misconduct-proceedings-for-barristers/ https://www.barstandardsboard.org.uk/media-centre/press-releases-and-news/civil-standard-of-proof-set-to-be-adopted-for-professional-misconduct-proceedings-for-barristers/ https://www.barstandardsboard.org.uk/media-centre/press-releases-and-news/civil-standard-of-proof-set-to-be-adopted-for-professional-misconduct-proceedings-for-barristers/ https://www.rcvs.org.uk/document-library/disciplinary-committee-procedure-guidance/ https://www.rcvs.org.uk/document-library/disciplinary-committee-procedure-guidance/ the denning law journal 203 that the european court of justice has viewed such proceedings as being of a hybrid nature.21 indeed, in the consultation paper, the law society not only explored the arguments for and against the criminal and the civil standard but also noted possible ‘hybrid’ options. one option based on the american bar association model rules for lawyer disciplinary enforcement was to introduce an intermediate standard, i.e. requiring ‘clear and convincing evidence’.22 the use of a ‘sliding scale approach’23 was also noted. this is used by several international sports disciplinary bodies and provides for a flexible approach to the standard of proof depending on the seriousness of the allegation.24 in the event, the result of the consultation was that 90% of solicitors responding were in favour of maintaining the status quo and this remains the position. towards a common approach to the standard of proof? given that the standard of proof in disciplinary proceedings of other professional bodies is overwhelmingly the civil standard, the solicitors disciplinary tribunal is placed in an anomalous position. as leggatt j noted in solicitors regulation authority v solicitors disciplinary tribunal ‘the present situation in which the tribunal, when acting as a primary fact-finder applies a different standard of proof from that which the sra applies when carrying out that role is unsatisfactory and illogical’.25 given its wide-ranging disciplinary powers there is rightly concern over the need to ensure a suitably high standard of proof in cases where there is an allegation of criminal conduct or where a solicitor’s livelihood is at stake. however, 21 albert and le compte v belgium [1983] 5 ehrr 533. 22 an intermediate standard has been favoured by several courts in the commonwealth when considering the appropriate standard of proof in election petition cases: see in particular the supreme court of kenya decision in odinga v independent electoral and boundaries commission [2017] eklr. see also the discussion in john hatchard, ‘election petitions and the standard of proof’ (2015) 27 denning law journal 291. 23 the law society (n 4) para 2.5. 24 for example, rule 17 of the rules of procedure of the international association of athletics federations’ ethics commission provides that ‘the standard of proof in all cases shall be determined on a sliding scale from, at minimum, a mere balance of probability (for the least serious violation) up to proof beyond a reasonable doubt (for the most serious violation). the panel shall determine the applicable standard of proof in each case’. see international association of athletics federations, ‘code of ethics’ (iaaf, january 2015) <https://www.iaafethicsboard.org/content/downloads/iaafcode-of-ethics-eng.pdf> accessed 10 june 2019. 25 solicitors regulation authority v solicitors disciplinary tribunal (n 6) para 49. https://www.iaafethicsboard.org/content/downloads/iaafcode-of-ethics-eng.pdf https://www.iaafethicsboard.org/content/downloads/iaafcode-of-ethics-eng.pdf 204 arguably, even in such cases, this does not require the adoption of the criminal standard. the views expressed in the arslan case (noted earlier) that the ‘climate and approach to professional regulation has changed’26 and that there is a need for ‘a re-evaluation of the approach to disciplinary measures intended to protect the public’27 emphasise the point. further, in the sharif case itself, the solicitors disciplinary tribunal emphasised that ‘maintaining public confidence in the profession remains of paramount importance’.28 the failure of mr sharif to comply with his anti-money laundering obligations highlights the concern. given these strong statements, it is difficult to justify the retention of the criminal standard of proof in disciplinary cases before the solicitors disciplinary tribunal. the solution does not lie in the adoption of an intermediate standard. instead, while emphasising that there is a single civil standard of proof, the english courts have supported a ‘flexible’ application of that standard. thus in in re cd (original respondent and cross-appellant) (northern ireland)29 lord carswell opined that the proposition neatly expressed by richards lj in r (n) v mental health review tribunal (northern region)30 ‘effectively states in concise terms the proper state of the law on this topic’:31 although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. in particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities.32 26 solicitors regulation authority v solicitors disciplinary tribunal (n 6) para 49. 27 ibid., para 73. 28 solicitors regulation authority v sharif (n 2) para 29. 29 in re cd (original respondent and cross-appellant) (northern ireland) [2008] ukhl 33. 30 r (n) v mental health review tribunal (northern region) [2005] ewca civ 1605, para 62. 31 in re cd (original respondent and cross-appellant) (northern ireland) (n 30) para 27. 32 ibid. the standard of proof in disciplinary proceedings: solicitors regulation authority v sharif (2019) the denning law journal 205 lord carswell further noted ‘that in some contexts a court or tribunal has to look at the facts more critically or more anxiously than in others before it can be satisfied to the requisite standard…’.33 thus situations ‘which make such heightened examination necessary may be the inherent unlikelihood of the occurrence taking place…, the seriousness of the allegation to be proved or, in some cases, the consequences which could follow from acceptance of proof of the relevant fact’.34 this is surely the correct approach. thus in cases before both the solicitors regulation authority and the solicitors disciplinary tribunal, the civil standard of proof should be applied. however in cases before the tribunal in which there are very serious allegations of misconduct which, if proved, could subject the solicitor to the possibility of an unlimited fine or removal from practice, the tribunal must require more cogent evidence to support the allegations. this would protect both the public interest and the interest of the individual solicitor. it is now up to the law society to follow the lead of the bar standards board. 33 ibid., para 28. 34 ibid. lord carswell gave a useful illustration which might also apply to the position of a solicitor: ‘the seriousness of consequences is another facet of the same proposition: if it is alleged that a bank manager has committed a minor peculation, that could entail very serious consequences for his career, so making it the less likely that he would risk doing such a thing’: ibid. see also the views of the privy council in hearing on the report of the chief justice of gibraltar [2009] ukpc 43 esp pp 15–17. artificial intelligence, expert systems and law richard e susskind* this paper introduces and explains the various branches of artificial intelligence and law, summarises past and present activities within both europe and the rest of the world and, on a practical level, considers the feasibility and the benefits of these systems as well as the problems to which they give rise. it then points to the keys to successful development. i artificial intelligence and law artificial intelligence (ai) is concerned with the design, development and implementation of computer systems that can perform tasks and solve problems of a sort for which human intelligence is normally thought to be required. for example, ai programs have been written to understand the spoken word, to translate from one language into another, and to recognise images and objects in the physical world. artificial intelligence as applied in the legal field can be sub-divided into two categories: expert systems and knowledge-based systems; and enhancements to legal information retrieval systems. expert systems and knowledge-based systems the broadly agreed goal of workers in the fields of expert systems and knowledge-based systems is to use computer technology to make scarce expertise and knowledge more widely available and easily accessible. expert and knowledge-based systems are therefore computer applications that contain knowledge and expertise which they can apply much as a human expert does in solving problems, offering advice and undertaking a variety of other tasks. in law, these systems should be able to apply their legal knowledge in guiding users • this paper is based on a report submitted to the council of europe in january 1990, entitled "systems based on artificial intelligence in the legal field". richard e. susskind is special advisor on law and information technology at masons solicitors, london. he is visiting professor at strathclyde university's centre for law, computers and technology and is chairman of the society for computers and law. 105 the denning law journal through complex legal issues; in identifying solutions to problems; in planning tasks; compiling documents and managing the flow of cases; and in offering advice and making specific recommendations. if there is any distinction at all between expert systems and knowledge-based systems, it is that the former are more powerful than (and are a subset of) the latter in that the former hold expertise and not just knowledge. there is a more fundamental set of distinctions, however, and that is between types of expert systems (the term hereafter used to refer both to expert systems and knowledgebased systems). there are currently five identifiable classes of expert systems as applied in law. i. diagnostic systems these systems offer specific solutions to problems presented to them. from the facts of any particular case, as elicited by such a system, it will analyse the details and draw conclusions, usually after some kind of interactive consultation. these systems are analogous to the medical diagnostic systems which make diagnoses on the basis of symptoms presented to them. an example of a diagnostic system in law would be a taxation system that could pinpoint the extent to which and why a person is liable to pay tax, doing so on the basis of a mass of details provided to it. 2. planning systems in a sense, planning systems reason in reverse. for these systems are instructed as to a desired solution or outcome and their purpose is to identify scenarios, involving both factual and legal premises, that justify the preferred conclusion. in tax law, a planning system could recommend how best a taxpayer should arrange his affairs so as to minimise his exposure to liability. the knowledge held within planning systems can be very similar to that held within diagnostic systems; what . is quite different is the way that that knowledge is applied. 3. procedural guides many complex tasks facing legal professionals require extensive expertise and knowledge that is in fact procedural in nature. expert systems as procedural guides take their users through such complex and extended procedures, ensuring that all matters are attended to and done within any prescribed time periods. an example of such a system would be one that managed the flow of a complex tax evasion case, providing detailed guidance and support from inception through to final disposal. 4. the intelligent checklist this category of system assists in auditing or reviewing compliance with legal regulations. compliance reviews must be undertaken with relentless attention to detail and extensive reference to large bodies of regulations. intelligent checklists provide a technique for performing such reviews. they formalise the process. in 106 artificial intelligence, expert systems and law taxation, an intelligent checklist approach could be used to assist in the review of a company's compliance with corporation tax. 5. document modelling systems these systems also referred to as document assembly systems store templates set up by legal experts. these templates contain fixed portions of text together with precise indications as to the conditions under which given extracts should be used. in operation, such a system will elicit from its user all the details relevant to a proposed document. this is done by the user answering questions, responding to prompts and providing information. on the basis of the user's input, the system will automatically generate a customised and polished document on the basis of its knowledge of how its text should be used. enhancements to legal information retrieval systems although legal information retrieval systems such as lexis have dominated the field of computers in law, these systems nevertheless have serious shortcomings. often they retrieve an excess of irrelevant documents, or alternatively not all pertinent documents within the data-base are located during every consultation. there is much more to legal problem-solving than searching for the occurrence of words within documents and, in recognition of this, researchers have sought to improve the performance of legal information retrieval systems by using ai techniques. two approaches can be adopted here: the introduction of a "frontend"; and the deployment of conceptual retrieval techniques. 1.front-ends the idea here is that guidance on the use of an interactive system is offered to users before searching within the database commences. such a front-end system will help the user actually formulate his search request. it will ask the user questions, help to pinpoint relevant terms and concepts, and help ensure that all but only the relevant documents are retrieved. front-ends can be built using classical "knowledge engineering" iai techniques they can embody the knowledge of experts in the use of legal information retrieval systems and make that expertise available to others. 2. conceptual retrieval those who argue that there is more to legal problem-solving than ,searching for keywords will often suggest that legal reasoning and research involves familiarity and manipulation of legal concepts. accordingly, researchers have developed methods of augmenting the traditional approach with conceptual retrieval techniques which will allow users to search through massive bodies of legal data, not just on the basis of the occurrence of keywords but in terms of the fundamental 107 the denning law journal concepts relating to any problem at hand. this could mean, for example, that systems will search not only for words expressly articulated by the user, but also for terms conceptually implicit in such requests. the above analysis focuses on the functions of ai systems in law but says little of the enabling technologies. in developing expert systems or enhanced legal information retrieval systems, researchers have drawn and will continue to draw on a wide range of ai techniques. over and above the techniques and methods normally associated with expert systems, workers in artificial intelligence and law increasingly make use, in particular, of natural language processing and neural computing. ii historical analysis the purpose of this section of the paper is to put the field of ai and law in historical context. it proposes a four stage model in terms of which activities in the field can be analysed and classified. the four stages of evolution in the field of ai and law activities in the field of law and ai tend to progress through four key stages: negligible activity; preliminary research; extensive research and development; and commercial exploitation. although these stages overlap, each has characteristics unique to it. 1. stage 1 negligible activity during this stage, there are no sustained attempts to carry out serious scientific investigations into the topic. nevertheless, and even in the days prior to the coming of the computer, in this first stage there may still be considerable speculation about what might be called the mechanisation of the legal problem solving process. some contributions in this connection may be no more than fictional, but others show remarkable foresight of the potential and the dangers of computerising legal reasoning. 2. stage 2 preliminary research eventually, speculation and fiction give way to the desire to inquire into the field more thoroughly and rigorously. in this second stage, the preliminary research will lay the foundations for later and larger initiatives, but at this stage work is confined largely to exploring ai and law from a theoretical perspective. researchers may be from law as well as from the world of computing. perhaps surprisingly, stage 2 is often dominated by the latter tradition it is computer scientists' basic research that will establish the technical feasibility of building ai systems in law and will stimulate lawyers into further inquiry. 108 artificial intelligence, expert systems and law 3. stage 3 extensive research and development the potential of the field having been established during stage 2, there will follow a period of great activity, involving many research projects, largely devoted to the development of prototype systems and demonstrators. at the same time, fundamental, theoretical research will continue and will have direct impact on the research and development projects. in this stage, as in the previous two, work will largely be confined to academic establishments. the findings of stage 3 will progress ai in law from the research laboratory into the marketplace. 4. stage 4 commercial exploitation in this final stage, commercial organisations explore the technology with a view to profitable development. these organisations will draw heavily from stage 3 activities, not simply in borrowing ideas but also in recruiting staff. the stage of commercial exploitation itself can be subdivided into several phases, each representing varying degrees of success and financial gain. the key feature of stage 4 activities is their commercial orientation there is little concern for theory, although it must be stressed that stage 3 research and development will still continue (at increasingly advanced levels) in parallel with stage 4 activity. a brief history of artificial intelligence and law the four stage model set out above can be used in analysing the worldwide history of the field. stage 1 would correspond to the time period before 1970. during that period, visionaries, science fiction writers, and technologically oriented lawyers wrote on the topic of computers engaging in legal reasoning and even replacing judges. interesting though these contributions were, they were often detached from the technical realities and from the nature of the legal process. it was not until 1970 that work began in earnest. this was the beginning of about five years' preliminary research stage 2 activity. buchanan and headrick, a computer scientist and lawyer from stanford university, published the first detailed analysis of the field in 1970. shortly afterwards, a man who is now considered to be the father of the field, thorne mccarty, began his taxman project, which was to run well into the 1980s. other key projects during that period were carried out by meldman in the united states, popp and schlink in germany, sprowl in the united states and stamper in england. collectively, these workers and a few others, undertook the preliminary research that has served as the foundation for more ambitious work over the last fifteen years. during the decade between the mid-1970s and the mid-1980s there emerged about 30 sustained research and development projects throughout the world. these projects built upon the stage 2 work, lending further credence to it by developing operational systems that demonstrated the potential of the field so much more clearly than abstract reports could ever have done. important projects 109 the denning law journal during this stage were conducted at the rand corporation in california, imperial college in london, the norwegian research centre for computers and law in oslo, and in england's open university and oxford university. it is interesting to note that the work of these projects during the world's stage 3emanated more from institutions than from individuals. the findings and products of these research and development programs attracted interest not only within the computing and legal communities but also in the popular press. in turn, the commercial world began to take greater interest. from 1985onwards, stage 4 commercial exploitation came about. the findings of earlier research projects were combined with the teachings of traditional data processing and constrained by the pragmatic demands of profit-making organisations. it must be stressed, however, that even on a world-wide basis, commercial exploitation of ai in the legal field is still, in 1990, at a very early phase, for returns on investments so far have been low (with the exception of the use of document modelling systems in the united states). it should be said, finally, in this brief history of ai and law, that there have now emerged, quite clearly, two types of worker in the field. on the one hand, there is the 'pragmatist' whose overriding aim is to develop and implement commercial systems that can actually assist in the solving ofiegal problems. on the other hand, there is the 'purist', for whom completion even of modest prototypes is not always necessary for success. the major goals of the purist are to clarify the nature oflega! reasoning, of human and artificial intelligence and of computational models oflaw. live systems are not necessary for this. generally, pragmatists operate in the commercial world, while purists can be found in research establishments. pragmatists are at stage 4 of the evolutionary path outlined earlier; while purists remain at stage 3, often with no intention of being involved in stage 4 activities. in assessing contributions to the field of ai and law, it is important to bear in mind this distinction between pragmatist and purist approaches. it is crucial to appreciate that workers in these camps have in mind quite different goals and their orientations often diverge radically. there must be room in the world of ai and law for both pragmatists and purists. indeed it is essential that contributions emerge from both camps. equally crucial is that neither claims superiority over the other. above all, perhaps, collaboration between the two is desirable. iii practical issues this section seeks to offer answers to four questions often asked by persons interested in exploiting the potential that ai and expert systems techniques offer for the law. (note that hereinafter the term "expert system" is often used in place of "ai" as it is this branch of ai that is attracting the greatest commercial interest.) the four questions are as follows: is it feasible to build artificially intelligent systems in the legal domain? 110 artificial intelligence, expert systems and law what are the benefits of this approach? what problems are there for workers in this field? what are the keys to success? this section deals with each of these questions in tum. questions of feasibility people unfamiliar with the field will often say that it is not possible or not feasible to build expert systems in law. careful analysis of this essertion, however, reveals that there are really five dimensions to this feasibility issue; that there are really five questions to be answered. these questions ask whether building expert systems in law is technically possible, jurisprudentially sound, commercially via~le, organisationally suitable and strategically appropriate. 1. technical possibility the key issue here is whether hardware and software in the field of ai has developed to such an extent that sound, reliable and robust systems can be designed, developed, implemented, tested and maintained. it is now widely accepted that expert systems have matured to such an extent that technologies and techniques are indeed now available, in 1990,to support the development at least of what might be termed 'first generation' systems. generally, such systems will be stand-alone, will operate in small problem domains, will not be capable of solving all problems that human experts can, but nevertheless will deliver appreciable business benefits. 2. jurisprudential soundness any expert system in law necessarily makes assumptions about the nature of law and of legal reasoning. accordingly, there is a growing literature on the philosophical implications and presuppositions of building such systems. some theorists have suggested that building such systems is to misrepresent, distort and oversimplify the legal problem-solving process. others have argued there to be a direct match between what the computer can do and what legal reasoning is all about. however, the view that has been most widely supported, and is now gaining even greater acceptance, is that there are no fundamental objections from the point of view of legal philo~ophy to building expert systems in law of limited scope. these limitations in scope refer to the category of proper user (the lawyer or legally informed person); the way in which such a system should be used (as an 'intelligent assistant' and not a replacement for a legal expert); and the limitations of solving .problems on the basis only of legal rules (so that these systems currently cannot reason on the basis of legal principle, policy or purpose). iii the denning law journal 3. organisational suitability even if it is technically possible and jurisprudentially proper to build these systems, it must always be asked whether such a system could actually function effectively in any target organisation. some users of the systems might feel de-skilled; others may feel uncomfortable about interacting with computer systems rather than human beings; while still others will lack the confidence to operate any computer system of whatever sort. this question offeasibility is often overlooked by enthusiasts and champions of the field. yet, from a purely practical point of view, many systems of the future will be regarded as failures precisely because they will not have been integrated with and accepted by the organisation for which they were developed. 4. commercial viability the costs associated with developing expert systems in law are considerable. not only are skilled computer professionals required, but if possible extensive time, effort and therefore cost of human experts will also be expended. for an expert system in law to succeed in the commercial world, the benefits that accrue from its deployment must outweigh these substantial outlays. a major difficulty here, however, is the notorious difficulty of quantifying the benefits of this technology: for many ofthe benefits, as shall be seen from the next part of this report, are of an intangible sort. a major challenge for this field, therefore, is to provide guidance on the compilation of cost/benefit analyses of systems. 5. strategic relevance complete commitment to this emerging technology may be further inhibited by a perception that even if these systems can be built, their operation would not sit comfortably with the nature of the organisation for which they are being developed. it may be, for instance, that a firm of solicitors decides not to be heavily involved with any sort of technology, but to offer a distinctively 'human' service. for such a firm, even if systems could profitably be developed, they may be deemed to be strategically inappropriate. the strategic question associated with these syste~s is, therefore, whether their use supports the wider strategic and business objectives of the organisation considering their introduction. significantly, since 1987, the first two questions about technical and jurisprudential feasibilityhave been asked less frequently. operational systems have themselves, in effect, responded positively. these two questions are the key concerns of those in stage 3 of the evolutionary path. in the world arena, the focus now is on the third and fourth questions whether these systems can offer sufficient p'ayback and fit into organisations considering their introduction. frankly, it is too early to be able to answer these questions with confidence. early indications of stage 4 are very encouraging; so what seems certain is that further investment and investigation is necessary. the fifth question, the one relating to strategy, will be the dominant question of the midto late 1990s. 112 artificial intelligence, expert systems and law the benefits there are two main categories of benefits. first, there is the benefit from a human resource perspective. second, there is the impact on quality. 1. human resources the central idea of expert systems technology is to allow human knowledge and expertise to be distributed more effectively and efficiently. this dissemination of scarce expertise will give rise to a range of improvements in the way human resources can be managed. using the technology, complex tasks, which in the past would have required the attention of experts, can now be reliably delegated to less experienced persons. these users will benefit from access to first-rate expertise that would have been possible previously only through direct interaction with human experts (whose time would inevitably have been limited). this possibility of delegating tasks and activities could go some way to overcoming the anticipated skills shortages that are likely to prevail in the 1990s. there are training implications here too: in operating these systems, users will gain considerable insight into the knowledge and techniques necessary and sufficient for first class performance in the legal problem-solving arena. additionally, expert systems will allow the expertise of many experts to be synthesised and preserved. more than this, they will also perform a liberating function. for it is likely that expert systems will be used largely to assist in the performance of many tasks that for experts are mundane or routine, although in the past required their attention. if expert systems can assist in such tasks, then they will free experts to focus on what they do best and what are likely to be beyond the scope of computer systems for some time yet namely, the tackling and solving of problems that are complex and difficult even for experts. 2. quality expert systems will also enhance the quality of legal work. by preserving and making widely available scarce legal expertise and in essentially codifying that knowledge, the technology can promote a uniformity of approach to similar problems, a consistency of disposal, and an in-built quality control regime. moreover, computer systems will not suffer from "off-days" that so often inhibit the performance of human beings. it is difficult to quantify with precision the human resource and qualitative benefits just noted. nevertheless, the major dimensions of financial benefit can easily be identified. for the profit oriented organisation, expert systems will allow greater leverage, that is, a higher proportion of lower paid to higher paid employees, while retaining the same quality and quantity (at least) of workload. the technology will also facilitate "value-billing", whereby the charge for legal services will be based not on the time spent on a task multiplied by some hourly rate; rather, the task itself will have been automated and so undertaken far more 113 the denning law journal quickly or at far lower cost. value-billing gives rise to charges equivalent to those that would be incurred under conventional billing systems. yet the task for which the charge is being made will have incurred far less cost for the provider. for the public service based organisation, such as a government legal department, the financial benefits of using the technology result from the possibility of substantially reducing the cost of the services delivered by the department. the technology will allow tasks to be undertaken by less costly staff in fewer hours while increasing the quality of the work. while it is easy to identify the sources of profit derived from expert systems generally, it is far more difficult to quantify these benefits in particular cases. as mentioned earlier, a key challenge for those involved with the commercial exploitation of ai and law is the articulation of techniques for precisely analysing the financial costs and benefits of building systems. problems and obstacles a number of problems and obstacles have faced and will continue to confront those wishing to build expert systems in the legal area. six major problems deserve mention. 1. lack of knowledge engineers the person whose task it is to "mine the jewels" from human experts' heads, then articulate that knowledge and finally embody it in a computer system, is known as the "knowledge engineer". to be effective in this task, the know lege engineer must have considerable knowledge both of computer technology and of the law. unfortunately, there are few people with training in both these disciplines. this lack of potential knowledge engineers will continue to inhibit the number of systems that are developed. 2. lack of domain experts the source of knowledge and expertise for any expert system is the human expert himself. this domain expert must work closely with the knowledge engineer and this is a very time consuming process. it is not easy to convince an expert to devote extensive periods of time that could otherwise be used for chargeable work or more direct legal service. yet, without the commitment of the expert to a project, no system can be developed. understandably, few experts so far have shown the degree of commitment required. 3. lack of method modern data processing is characterised by the use of so-called "methodologies"; that detailed sets of carefully and clearly formulated standard practices and procedures to guide those developing systems. in contrast, no such methodology exists for the development of expert systems in the legal area and so designers of 114 artificial intelligence, expert systems and law these systems are required to face the same obstacles and hurdles that others have faced and overcome in the past. 4. lack of tools other than for the development of document modelling systems, there are, as yet, no commercially available software packages devoted to the development of expert systems in law. today, designers of systems are compelled to use tools not ideally suited to the task and inefficiency and inaccuracy inevitably result. 5. quality controldifficulties a major problem facing the ai community generally is the difficulty of controlling the quality of systems under development. it is enormously difficult to test the reliability and accuracy of the knowledge held within these systems, to test the soundness of the underlying code and to audit their performance. a fully articulated methodology, of course, would address this issue of quality control. 6. legal implications there can be no doubt that some reluctance to develop fully operational systems has its roots in concern over the legal implications of expert systems in law giving rise to loss. the expert system as a source of information and advice seems to sit somewhere between the professional adviser on the one hand and the text book on the other. however, there have been no decided cases on the issue ofiiability for expert systems, and while this uncertainty prevails, so too will some reluctance to develop the technology further. keys to success the fourth and final question often asked of expert systems in law looks for guidance on the successful development of systems. drawing on international findings, there follows a listing of ten keys to success. there must be a management or business problem requiring a solution too often expert systems are 'solutions looking for problems'. a rigorous feasibility study must be undertaken prior to any major development project. quick, inexpensive prototyping of systems can, at an early stage, greatly enhance the understanding of management, experts, and projected users. where possible, existing expert systems developments, methods and techniques should be used rather than inventing new ones. it is crucial for the purposes of development and maintenance, to record and document the knowledge held within a system in some schematic form, usually as "knowledge base maps". conventional data processing skills can and should be regularly used in the lis the denning law journal course of developing expert systems in law. a fundamental, theoretical, jurisprudential understanding of the law on the part of developers greatly increases the likelihood of the development of reliable systems. once in operation, the performance and organisation fit of systems must frequently be monitored. the expectations of management, experts and users must be managed most carefully and developers must not fall foul of 'the fallacy of the successful first step'. a system will only be used profitably if there is the commitment of senior management, of domain experts and of the end users. in conclusion, it is generally anticipated that the 1990swill be the decade during which artificial intelligence technologies begin to deliver substantial business benefits. given careful and sufficient investment, the administration of the lawboth in the public and private sectors is an area of particular promise. the public administration of the law and the provision of private legal services is inherently knowledge based and so is especially amenable to ai and expert systems treatment; for these technologies strive precisely to support and enhance knowledge processing tasks. 116 unincorporated associations: property holding, charitable purposes and dissolution 303 denning law journal 2015 vol 27 pp 303-322 case commentary does the judgment of the cjeu in gazprom bring about clarity on the grant of anti-suit injunctions under the brussels i regulation? gazprom oao v republic of lithuania (case c-536/13) [2015] wlr (d) 212 jae sundaram  1. introduction on 13 may 2015 the cjeu delivered the much anticipated judgment in gazprom oao v republic of lithuania. 1 the cjeu had before it issues relating to the grant of anti-suit injunctions by member state courts/arbitral tribunals to enforce arbitration agreements, and also, most importantly if the brussels i regulation would apply to the case at hand. the case gains in significance, as the advocate general (ag) had in december 2014, while giving his opinion on the matter had proceeded to apply a “future law” on a matter pending before the courts, strongly recommended that the cjeu reconsider its judgment handed down in allianz v west tankers (the front comor). 2 earlier, in the west tankers case the cjeu ruled that it was incompatible with the brussels regulation for the court of a eu member state to grant an injunction restraining a party from commencing or continuing court proceedings brought in breach of an arbitration agreement. in reaching this decision, the cjeu held that if proceedings were to come within the scope of the brussels i regulation, then a preliminary issue concerning the validity of an arbitration agreement also came within the scope of the regulation. on 10 january 2015 the recast brussels regulation, 3 which was aimed at clarifying the position on the application of the brussels  senior lecturer in law, law school, university of buckingham. 1 gazprom oao v republic of lithuania (case c-536/13) [2015] wlr (d) 212. 2 allianz spa v west tankers inc (the front comor) (c-185/07) [2009] 1 all er (comm) 435. 3 the recast brussels regulation repealed and replaced the brussels i regulation in respect of proceedings commenced in the eu on or after 10 january 2015. the case commentary 304 convention to arbitral agreements, came into force in the european union. in the lead up to the cjeu‟s judgment in the gazprom case, it became important for uk practitioners and those actively engaged in cross-border commerce to know if the english courts will in future be allowed to grant anti-suit injunctions to enforce english arbitration agreements, and thereby uphold the principle of freedom of contract within the eu. did the cjeu deliver? was the recast brussels regulation applied to the case at hand, especially when the ag had proceeded to base his opinion using the recast brussels regulation? is there clarity on the position of granting anti-suit injunctions to enforce agreements within the eu? this article will firstly, analyse the opinion expressed by the ag in the matter, secondly analyse the judgement of the cjeu in the gazprom case, briefly touch upon the relevant provisions of the recast brussels regulation, and seek answers to the questions posed above. 2. facts in gazprom oao v republic of lithuania in 1999, gazprom, a russian company entered into a long-term agreement with the lithuanian company lietuvos dujos ab (lietuvos) for the supply of gas to the lithuanian state. lietuvos was later privatised, where gazprom, e.on ruhrgas and the republic of lithuania took equity stakes in accordance with a shareholders agreement. under the terms of the shareholders agreement, from 2004, the parties were obligated to maintain “fair prices” following the formula set out in the long-term supply agreement. the lithuanian ministry of energy (moe) was of the view that it was being overcharged by gazprom, much higher than the prevailing prices in the eu. suspecting collusion between members of the board of directors, the moe commenced proceedings in march 2011 against lietuvos and the gazprom appointees. the legal action was brought in vilnius, under lithuanian laws, seeking a direction from the regional courts requiring lietuvos to enter into renegotiations to fix a revised price for the gas supplied. the moe also sought to initiate an investigation under lithuanian domestic laws. primary objective of the recast brussels regulation is to remedy some of the perceived defects in the brussels i regulation (ec 44/2001). while some provision of the brussels i regulation remain (rule on domicile), key changes have been made to rules relating to jurisdiction agreements, to related actions (lis pendens), third state (non-eu states) matters, an enhanced arbitration exclusion, etc. the denning law journal 305 the shareholders agreement between the three principal parties also contained an arbitration clause, which provided for stockholm chamber of commerce arbitration with the seat in stockholm. invoking the above arbitration clause, gazprom, in august 2011 initiated proceedings before the arbitration institute of the stockholm chamber of commerce. one of the reliefs sought for was the immediate withdrawal of the legal proceedings brought by the lithuanian moe before the national courts in vilnius in breach of the arbitration agreement. following a hearing, in july 2012 the stockholm tribunal declared that the arbitration clause in the shareholders agreement was breached and directed the lithuanian moe to withdraw such legal proceedings brought before the courts in vilnius. gazprom duly applied to the lithuanian court of appeal for the recognition and enforcement of the arbitral award of july 2012 under the new york convention on the recognition and enforcement of foreign arbitral awards 1958 (new york convention 1958). the lithuanian moe took the stance that recognition of the arbitral tribunal‟s award would be contrary to regulation 44/2001. in december 2012, the court of appeal rejecting gazprom‟s application held that the stockholm arbitral tribunal did not have the power to rule on an issue sub judice before the court in vilnius, while observing that the arbitral award had the effect of limiting the lithuanian moe‟s capacity to initiate proceedings which was contrary to public policy. shortly thereafter, the regional court in vilnius in the proceedings initiated by the lithuanian moe held that investigative measures sought for in the proceedings were clearly within its own jurisdiction and not arbitrable. lietuvos and the board of directors appointed by gazprom appealed the above decision of the vilnius court. the court of appeal dismissed lietuvos‟ appeal on the ground that an arbitral award limiting the lithuanian moe/government‟s powers was incompatible with the lithuanian constitution. needless to say lietuvos and gazprom challenged the appeal court‟s decision before the supreme court of lithuania. in the proceedings before it, the lithuanian supreme court identified the stockholm arbitral award to an anti-suit injunction, as it directed the moe to withdraw some of its claims brought before its domestic courts. the supreme court of lithuania referred the following questions to the cjeu: i. where an arbitral tribunal issues an anti-suit injunction and thereby prohibits a party from bringing certain claims before a court of a member state, which under the rules on jurisdiction in [regulation no 44/2001] has jurisdiction to hear the civil case as case commentary 306 to the substance, does the court of a member state have the right to refuse to recognise such an award of the arbitral tribunal because it restricts the court‟s right to determine itself whether it has jurisdiction to hear the case under the rules on jurisdiction in [regulation no 44/2001]? ii. should the first question be answered in the affirmative, does the same also apply where the anti-suit injunction issued by the arbitral tribunal orders a party to the proceedings to limit his claims in a case which is being heard in another member state and the court of that member state has jurisdiction to hear that case under the rules on jurisdiction in [regulation no 44/2001]? iii. can a national court, seeking to safeguard the primacy of eu law and the full effectiveness of [regulation no 44/2001], refuse to recognise an award of an arbitral tribunal if such an award restricts the right of the national court to decide on its own jurisdiction and powers in a case which falls within the jurisdiction of [regulation no 44/2001]? after receipt of the opinion from the ag, and hearing the arguments of parties to the dispute, the cjeu delivered its judgement on the matter on 13 may 2015. it is also to be noted that in the interregnum, on 10 january 2015 the recast brussels regulation 4 came into force in the eu. the advocate general’s opinion in december 2014, advocate general wathelet 5 presented his opinion in response to the three questions referred to the cjeu by the supreme court of lithuania, in the gazprom case. the advocate general 6 (herein 4 council regulation (ec) 1215/2012 of 12 december 2012. 5 advocate general, melchior wathelet was a judge of the ecj between the years 1995 and 2003. 6 the functions of the advocate general is set out in article 166 eec treaty, as follows: it shall be the duty of the advocate-general, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases brought before the court of justice, in order to assist the court in the performance of the task assigned to it in article 164. see jw bridge, „the court of justice of the european communities and the prospects for international adjudication‟ in mw janis (ed.) international courts for the twenty first the denning law journal 307 after ag) in his opinion to the cjeu, sought to strike a right balance between the brussels i regulation and the new york arbitration convention 1958 in matters relating to recognition of awards passed by arbitral tribunals which are in the nature of anti-suit injunctions. although not binding, the ag‟s opinion is seldom rejected by the cjeu in practice. 7 the three questions referred to the cjeu by the supreme court of lithuania, and the opinion of the ag can be summarised as follows: question 1: the first question “whether a eu member state court can refuse to recognise an arbitral award on the grounds that it would restrict its right to determine itself if it has jurisdiction to hear the case under the regulation no 44/2001” required an analysis of whether under the scheme of the brussels i regulation it was permissible to enforce an arbitral award. the ag was not in agreement with the lithuanian supreme court‟s reliance on article 71 8 of the regulation, which gives the century‟ (kluwer 1992) 87-104, 96. the ag‟s office is an institution modeled on french legal procedure with the ag having a function in relation to the ecj, similar to that of the commissaire du gouvernement to the counseil d‟ etat. most importantly, an ag is expected to possess the same professional qualifications as the judges and is appointed by common accord of the governments of the member states on the same terms as the judges. 7 the key function of the ag, in practice, is to assist the judges of the ecj by offering a reasoned opinion on the case before it. the ag‟s opinion is purely personal and does not represent the views of the community, the member states, or the court. further, the court is not obliged to follow the opinion of the ag and can disregard them. see dac freestone & js davidson, the institutional framework of the european communities (routledge 2005) 135-136. the authors also point out that the office of ag has had a significant impact upon the style of the ecj, and the opinions presented by the ags have proved to be a fruitful source for the development of the court‟s jurisprudence. see also jw bridge (n 6). the ag acts as a defender of law and justice in the context of the community treaties. the author points out that the ag‟s professional competence, and the nature of the opinions submitted before the courts, makes the office comparable to that of a judge of the first instance, whose opinions are never binding but are always subject to review by the ecj. 8 article 71 of council regulation 44/2001 reads as follows: 1. this regulation shall not affect any conventions to which the member states are parties and which in relation to particular matters, govern jurisdiction or the recognition or enforcement of judgments. 2. with a view to its uniform interpretation, paragraph 1 shall be applied in the following manner: (a) this regulation shall not prevent a court of a member state, which is a party case commentary 308 member states the freedom to assume jurisdiction according to another international convention to which it is a party to, even where the defendant is domiciled in a member state, which is not a party to that convention. in this case the “other convention” was the new york convention 1958, which was incorporated into the agreement by the parties. also in the opinion of the ag, article 71(2) was not applicable, as the award under question cannot be considered a “judgement” within the definition of the regulation. in the ag‟s opinion, recognition and enforcement of the arbitral award should only be governed by the 1958 convention, as arbitration was clearly excluded from the scope of the brussels i regulation. in his opinion, the position of the lithuanian courts was comparable to that of the english courts in the west tankers case, 9 as it was seised of a matter, which was outside the scope of the regulation. also, the brussels regulation excluded arbitration from its ambit, and that any recognition of an arbitral award should be subject to the 1958 new york convention. the ag opined that on a proper interpretation of the brussels regulation, the courts of a member state could not be compelled to refuse to recognise and enforce an anti-suit injunction awarded by an arbitral tribunal. while concluding as above, the ag had applied the provisions of the recast brussels regulation, which was only to come into force on 10 january 2015. this was a peculiar view, as the recast brussels regulation can apply neither retrospectively, nor to any pending matters before a to a convention on a particular matter, from assuming jurisdiction in accordance with that convention, even where the defendant is domiciled in another member state which is not a party to that convention. the court hearing the action shall, in any event, apply article 26 of this regulation; (b) judgments given in a member state by a court in the exercise of jurisdiction provided for in a convention on a particular matter shall be recognised and enforced in the other member states in accordance with this regulation. where a convention on a particular matter to which both the member state of origin and the member state addressed are parties lays down conditions for the recognition or enforcement of judgments, those conditions shall apply. in any event, the provisions of this regulation which concern the procedure for recognition and enforcement of judgments may be applied. 9 allianz spa v west tankers inc (west tankers case) (n 2). in the ag‟s opinion, had the west tankers case been subject to the recast brussels regulation, the outcome would have been different, with the validity of the arbitration agreement being excluded as an „incidental question‟ by virtue of recital 12, while the antisuit injunction which formed the subject matter of the dispute being viewed as incompatible with the brussels regulation. the denning law journal 309 court of law. 10 the particular provision of the recast brussels regulation, which the ag based his opinion on, is to be found in recital 12. 11 the relevant provision in principle lays down that the regulation should not apply to arbitration. question 2: the second question in effect raised the more thorny issue of anti-suit injunctions, which had been plaguing the law courts in eu for some time, and was cast as “can a eu member state court refuse to enforce an arbitral award that contained an anti-suit injunction, and which also further restricts the party to limit their claims in another eu 10 the ag‟s justification to apply the recast brussels regulation to a pending matter is to be found in paragraph 91 of his opinion which runs as, „…the main novelty of that regulation, which continues to exclude arbitration from its scope, lies not so much in its actual provisions but rather in recital 12 in its preamble, which in reality, somewhat in the manner of a retroactive interpretative law, explains how that exclusion must be and always should have been interpreted.‟ see infra (n 37). 11 recital 12 of the recast brussels regulation provides as follows: “this regulation should not apply to arbitration. nothing in this regulation should prevent the courts of a member state, when seised of an action in a matter in respect of which the parties have entered into an arbitration agreement, from referring the parties to arbitration, from staying or dismissing the proceedings, or from examining whether the arbitration agreement is null and void, inoperative or incapable of being performed, in accordance with their national law. a ruling given by a court of a member state as to whether or not an arbitration agreement is null and void, inoperative or incapable of being performed should not be subject to the rules of recognition and enforcement laid down in this regulation, regardless of whether the court decided on this as a principal issue or as an incidental question. on the other hand, where a court of a member state, exercising jurisdiction under this regulation or under national law, has determined that an arbitration agreement is null and void, inoperative or incapable of being performed, this should not preclude that court‟s judgment on the substance of the matter from being recognised or, as the case may be, enforced in accordance with this regulation. this should be without prejudice to the competence of the courts of the member states to decide on the recognition and enforcement of arbitral awards in accordance with the convention on the recognition and enforcement of foreign arbitral awards, done at new york on 10 june 1958 („the 1958 new york convention‟), which takes precedence over this regulation. this regulation should not apply to any action or ancillary proceedings relating to, in particular, the establishment of an arbitral tribunal, the powers of arbitrators, the conduct of an arbitration procedure or any other aspects.” case commentary 310 member state court?” drawing from the earlier conclusion to question 1, that a court of a eu member state cannot refuse to recognise and enforce an arbitral anti-suit injunction, the ag felt it unnecessary to analyse this question. question 3: the third question, similar to the second one, involved the grant of anti-suit injunctions by arbitral tribunals and their recognition by eu courts, and was worded as “can a eu member state court refuse to recognise an arbitral award that limits the right of the national court to rule on its own jurisdiction, while seeking to safeguard the primacy of the eu law and full effectiveness of the regulation no 44/2001?” article v.2(b) 12 of the 1958 new york convention permits a state‟s domestic court to refuse recognition and enforcement of an arbitral award where it to be viewed as being contrary to public policy to recognise or enforce the award. in the ag‟s view, the fact that an arbitral award contained an antisuit injunction did not constitute sufficient grounds for refusing to recognise and enforce it on the basis of article v.2(b) of the 1958 convention, as the provisions of the regulation were not essentially the provisions of the eu law to warrant elevation to the status of public policy provisions. as mentioned earlier, the ag‟s opinion takes into account the recast brussels regulation, even though it was not in force at the time the opinion was presented to the cjeu, and was only to come into force on 10 january 2015. for those engaged in cross-border commerce, and commercial legal practice, the decision of the cjeu in the west tankers case presented an unwanted conflict of law situation in international commercial arbitration and spelled the death knell of the anti-suit injunctions within the eu. in the ag‟s view, the recast brussels regulation goes a long way to correct some of the wrongs of the decision in the west tankers case. it was also the ag‟s view that the incidental question of the validity of an arbitration agreement is outside the scope of the recast brussels regulation. he also was of the opinion that until a court of a member state has decided on the issue of the validity of the arbitration agreement, it is not seised of the substantial matters of the dispute, which falls within the scope of the recast brussels regulation. in 12 article v.2(b) of the new york convention 1958 reads as follows: 2. recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that: (a) ….; or (b) the recognition or enforcement of the award would be contrary to the public policy of that country. the denning law journal 311 the ag‟s opinion, an anti-suit injunction granted by an arbitral tribunal did not compare to a similar order granted by a court of a member state. the ag‟s opinion can be clearly viewed as an attempt to warn the cjeu to avoid a repeat of the west tankers case situation under the recast brussels regulation. it will not be an understatement to conclude that the ag‟s opinion in this matter reopened the debate on the grant of anti-suit injunctions by arbitral tribunals to restrain proceedings before member state courts. 3. gazprom judgment and analysis besides presenting some crucial questions on the validity of granting anti-suit injunctions by arbitrators to uphold arbitration agreements under the brussels i regulation, the setting of the case before the cjeu also became politically charged, as the russian state had a majority stake in gazprom. in order to understand the importance of the gazprom judgment, one will have to visit earlier decisions of the cjeu on the subject of anti-suit injunctions, the differing approaches to the grant of anti-suit injunctions in the uk and continental europe, and what exactly does the brussels regulation exclude when it states “this regulation shall not apply to…. arbitration?” 13 the brussels convention 1968, the precursor to the brussels regulation, also containing similar provisions, excluded arbitration from its operation, as it was thought that the united nations convention on recognition and enforcement of foreign arbitral awards (the new york convention) 14 and the 1961 european convention on international commercial arbitration 15 had already regulated 13 article 1(2)(d) in both brussels regulation 2000, and the recast brussels regulation 2012 state the same. see, tc hartley, „the brussels i regulation and arbitration‟ (2014) 63 iclq 843. 14 the convention on the recognition and enforcement of foreign arbitral awards, also known as the new york convention 1958, was adopted by a united nations diplomatic conference on 10 june 1958 and entered into force on 7 june 1959. the new york convention, which is viewed as a key instrument for international arbitration, requires the courts of contracting states to give effect to private agreements to arbitrate, and to recognize and enforce arbitration awards made in other contracting states. 15 the 1961 geneva convention on international commercial arbitration (geneva convention), which was concluded in geneva on 21 april 1961 under the aegis of the trade development committee of the un economic commission of europe. the convention applies to international arbitrations to settle trade disputes between parties from different states, whether european or not. see a case commentary 312 international arbitration. in this regard, the jenard report from 1968 16 identified two potential reasons for the exclusion of arbitration from the ambit of the brussels convention, viz., the existence of other international agreements on international arbitration and the preparation of a european convention providing for a uniform law on arbitration and a protocol on recognition and enforcement of arbitral awards. when the uk became a party to the convention, a report on the accession to the convention was tabled by professor schlosser, 17 which covered the arbitration exception in more detail. 18 schlosser identified the view put forward by the uk in the negotiations, which was that the exclusion covered court proceedings concerning any dispute that the parties agreed would be settled through arbitration. he also identified the view held by the original member states, which was that the exclusion covered court proceedings only if they relate to arbitration proceedings. 19 i) earlier outings of the cjeu on the exclusion of arbitration: for a period of over two decades, there had been a number of occasions (under different circumstances) where references have been made by the courts of the member states to the cjeu requisitioning for redfern and m hunter, law and practice of international arbitration (sweet & maxwell 2005) 69-70. the authors opine that the 1961 geneva convention did not live up to its expectations, as its approach was more theoretical rather than practical. also it did deal with the recognition and enforcement of awards, which was left for other conventions such as the 1958 new york convention to deal with. 16 the report on the convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters 1968 [oj no c 59, 5.3.1979]. the jenard report further quotes that the brussels convention does not apply to the recognition and enforcement of arbitral awards, to the jurisdiction of courts in respect of litigation relating to the arbitration (for example proceedings to set aside an arbitral award) and to the recognition of judgments given in such proceedings. see also k svobodova, „arbitration exception in the regulation brussels i‟ (2008) <https://www.international-arbitration-attorney.com/wpcontent/uploads/arbitrationlawsvobodova.pdf> accessed 18 july 2015. 17 the schlosser report 1978 [oj no c 59, 5.3.1979]. 18 in schlosser‟s view the convention did not cover court proceedings ancillary to arbitration proceedings, and also did not cover court proceedings to determine the validity of an arbitration agreement. see hartley (n 13). 19 interestingly for schlosser, the convention in no way restricted the freedom of parities to submit their disputes to arbitration. see hartley (n 13). the denning law journal 313 an interpretation of article 1(2)(d) of the brussels regulation. one of the earliest references to the cjeu from the english court was the marc rich 20 case, where the court of appeal referred the matter to the cjeu, with the question “if article 1(2)(d) must be interpreted in such manner that the exclusion provided for therein extended to proceedings pending before a national court concerning the appointment of an arbitrator and, if so, whether that exclusion also applied where in those proceedings a preliminary issue was raised as to whether an arbitration agreement existed or was valid.” the cjeu ruled that the proceedings before the english courts were outside the scope of the brussels convention, as they were ancillary to arbitration proceedings, 21 and observed that “in order to determine whether a dispute falls within the scope of the convention, reference must be made solely to the subject-matter of the dispute. if, by virtue of its subject-matter, such as the appointment of an arbitrator, a dispute falls outside the scope of the convention, the existence of a preliminary issue which the court must resolve in order to determine the dispute cannot, whatever that issue may be, justify application of the convention.” the judgment to a certain degree shed some light on the meaning of article 1(4) of the brussels convention, by determining that it applied not only to arbitration proceedings but also to court proceedings where the subject matter is arbitration. the effect of the cjeu‟s ruling was that the english court proceedings were not barred by the lis pendens rule, and that in determining whether a matter falls within the scope of the convention, regard must be had solely to the subject matter of the 20 marc rich and co v società italiana impianti (the atlantic emperor) case c190/89, [1992] 1 lloyds rep 342 (ecj). the matter arose out of a contract for sale of crude oil between a swiss buyer (marc rich) and an italian seller (impianti). marc rich sought to introduce, besides other clauses, an english choice-of-law clause and an english arbitration clause into the contract through a telex message, but impianti did not respond to the same. upon receipt of the cargo, marc rich claimed serious contamination, which led to impianti bringing proceedings before a court in genoa, italy, for a declaration that it was not liable to marc rich. needless to say, marc rich challenged the jurisdiction of the genoese court on the basis of the london arbitration clause, and also duly commenced arbitration proceeding in london. impianti maintained that the arbitration clause was not part of the contract. the english high court held that the brussels convention did not apply to the matter. 21 this establishes, as stated in the jenard and schlosser reports that court proceedings ancillary to arbitration proceedings are outside the scope of the convention. see hartley (n 13). case commentary 314 proceedings, and not to any incidental question raised by either of the parties. 22 in turner v grovit, 23 a case which involved an anti-suit injunction (and did not involve an arbitration agreement), the cjeu held that a court of one contracting state cannot restrain proceedings brought before another contracting state as the brussels convention does not allow for subjecting the court of one contracting state to be reviewed by the court of another contracting state, and that as a result, any anti-suit injunction granted by the court of a contracting state was an unacceptable interference with the jurisdiction of a foreign court and was incompatible with the convention. on the above reasoning the cjeu proceeded to observe that the brussels convention “...is to be interpreted as precluding the grant of an injunction whereby a court of a contracting state prohibits a party to proceedings pending before it from commencing or continuing legal proceedings before a court of another contracting state, even where that party is acting in bad faith,” and proceeded to set aside the anti-suit injunction granted by the english court of appeal. it should not be forgotten that the turner v grovit case was yet another instance of the “italian torpedo” action. 24 this decision of the cjeu in turner v 22 hartley (n 13). it is also to be noted that when the english proceedings resumed, marc riche‟s application for an anti-suit injunction to preclude impianti from taking further steps in the italian proceeding was rejected on the grounds that by pleading to the merits of the case before the genoese court in italy, it had submitted to the genoese court‟s jurisdiction. this decision of the high court was upheld on appeal. 23 turner v grovit (case c-159/02) [2005] 1 ac 101. turner was an employee of chequepoint (an english company), which operated bureaux de change. it also had a spanish sister concern called changepoint, which operated in spain, and another company called harada. as requested, turner was transferred to spain (changepoint) in 1997. this transfer was to last for a very short period, as he was yet again transferred to harada in the same year. turner brought a claim before the employment tribunal in london against mr grovit (the director of all three companies) claiming constructive dismissal, and also for being made to engage in illegal conduct whilst working in spain. around the same time the spanish company, changepoint, commenced proceedings against turner in spain alleging professional misconduct. against this background, turner applied to the english courts for an anti-suit injunction, pleading that the spanish proceedings had been brought in bad faith with a view to obstructing the claim brought by him before the employment tribunal in london. 24 maro franzosi first coined the expression „italian torpedo‟ in the late 1990s in an article that highlighted the „torpedo‟ litigation strategy, which originated in the denning law journal 315 grovit, in effect, took away the ability of a party to enforce a contractual clause to submit disputes to a chosen court through the mechanism of antisuit injunctions. in his reference in the west tankers 25 case, lord hoffman highlighted that the cjeu had in its two previous decisions, 26 demonstrated a strong aversion to one contracting state‟s court restricting in any way the jurisdiction of another contracting sate. 27 for lord hoffman the anti-suit intellectual property actions brought before courts in italy to delay proceedings. see m franzosi, „worldwide patent litigation and the italian torpedo‟ european ip rev, vol. 19 [1997] 382-385. 25 allianz spa v west tankers inc (the front comor) (n 2). in august 2000, the front comor a vessel chartered to erg petroli spa (erg) and owned by west tankers collided with a jetty at erg‟s refinery. erg‟s insurers ras riunione adriatica di sicurta (ras) paid approximately €15.5 million under the insurance policy for the damage suffered to the jetty. erg commenced arbitration proceedings in london against west tankers for the uninsured loss. ras subrogating for erg brought proceedings against west tankers before the tribunale di siracusa (italy) to recover €15.5 million paid to erg under the policy of insurance, making it the court „first seised‟ of the matter under the convention. west tankers objected to the proceedings in london on the basis of the existence of the arbitration agreement contained in the charterparty contract. west tankers also sought for a declaration before the high court in london that the dispute between the parties was subject to an arbitration clause. the english high court granted an anti-suit injunction against the insurers as regards the proceedings in italy. the insurers appealed. in spite of its point of view that arbitration was completely excluded from the scope of regulation no 44/2001 by virtue of article 1(2) (d) thereof, the house of lords stayed the proceedings and referred a question to the ecj, requisitioning a preliminary ruling. 26 gasser gmbh v misat srl (case c/116/02) [2004] 1 lloyd‟s rep 222; turner v grovit (case c-159/02) [2005] 1 ac 101. 27 according to lord hoffman, going by the decision of the ecj in marc rich and co v società italiana impianti (the atlantic emperor) case c-190/89, [1992] 1 lloyds rep 342 (ecj), and van uden maritime bv v kommanditgesellschaft in firma deco-line (case c-391/95) [1999] 2 wlr 1181, arbitration was altogether excluded from the scope of the brussels regulation by article 1(2)(d). for lord hoffman, the van uden case provided a strong basis for the legality of anti-suit injunctions to enforce arbitration agreements, as it held that in a proceeding intended to protect the parties‟ choice to have a dispute settled by arbitration, arbitration is the subject matter. for a discussion on west tankers case and its impact on parties‟ choice of seat of arbitration, see d rainier, „the impact of west tankers on parties‟ choice of a seat of arbitration‟ (2010) 95 cornell l rev 431. case commentary 316 injunctions served as an important weapon to promote legal certainty and help reduce the possibility of conflict between the arbitration award and the judgment of a national court. 28 the question that was referred to the cjeu by the house of lords was whether a contracting state court could grant an injunction against a person bound by an arbitration agreement to restrain them from commencing or pursuing proceedings in the courts of another contracting state in breach of the arbitral agreement. in response, the cjeu held that granting anti-suit injunctions on the grounds that such proceedings would be contrary to an arbitration agreement was incompatible with the regulation 44/2001. this decision had come under severe criticism, with some writers even expressing the view that the cjeu in the west tankers case had sacrificed anti-suit injunctions in the name of mutual trust, 29 while forgetting its importance in bringing about certainty in commercial matters through the freedom of choice of law and forum. the judgement of the cjeu in the west tankers case, to a certain degree, put at risk the reputation of the english arbitral forum, as without the safeguards of an anti-suit injunction, parties may not be inclined to choose england as their seat of arbitration. 30 ii) recast brussels regulation and the gazprom decision: there have been concerns about certain aspects of the application of the brussels i regulation, particularly in relation to its lis pendens provisions. article 27 of the brussels i regulation 31 provides that in the 28 lord hoffman was also apprehensive that london could fast lose its attractiveness as a seat of international commercial arbitration if the ecj were to lose sight of the fact that the courts are there to serve the business community rather than the other way round. he further pointed to new york, singapore and bermuda as jurisdictions willing and prepared to issue such anti-suit injunctions to preserve arbitration agreements. see also rainier (n 27) 440. 29 see rainier (n 27) 460. 30 although this argument is not substantiated by statistical evidence some authors have opined that the judgement of the ecj could make the english arbitral proceedings less attractive. see rainier (n 27) 436. the author observes that following the ecj‟s decision in the west tankers case the us could potentially become more attractive as a seat of arbitration for international commercial arbitration. see also m moses, „arbitration/litigation interface: the european debate,‟ nw j int‟l l & bus vol.35, no. 1 (2014) 1-47, 12-13. the author notes that there was a negative reaction to the decision of the ecj in the west tankers case, particularly amongst the english arbitration community. 31 article 27 of the brussels i regulation reads as follows: the denning law journal 317 event proceedings involving the same cause of action and between the same parties are brought in the courts of different contracting states, the court second seised of the matter must stay its proceedings until the court first seised has determined whether it has jurisdiction to hear the claim. it is well known that article 27(1) 32 of the brussels i regulation had been repeatedly exploited by debtors to commence proceedings in courts of jurisdictions with slow moving judiciary to protract proceedings in violation of jurisdiction (and arbitral) agreements. 33 as discussed earlier, it was also widely thought that the decision in the west tankers case would render a london arbitration agreement vulnerable to “torpedo” actions and make it worthless. responding to such apprehensions the european parliament and the european commission in december 2010, published proposals for reform of the brussels i regulation primarily aimed at improving judicial co-operation within the eu and enhancing the autonomy of arbitration. the recast brussels regulation 34 seeks to address a number of concerns raised by member states, including the above. following a detailed consultation, the uk opted into the recast brussels regulation, which came into force on 10 january 2015. it is accepted that the brussels i regulation under article 1(2)(d) excludes arbitration from its scope. but a lack of clarity on how this exclusion is to apply in practice by national courts in support of arbitration 1. where proceedings involving the same cause of action and between the same parties are brought in the courts of different member states, any court other than the court first seized shall by its own motion stay its proceedings until such time as the jurisdiction of the court first seized is established. 2. where the jurisdiction of the court first seized is established, any court other than the court first seized shall decline jurisdiction in favour of that court. 32 article 27 (1) of the brussels regulation reads as follows: where proceedings involving the same cause of action and between the same parties are brought in the courts of different member states, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. 33 see m aquilina, „lawsuits in the european union: disarming the „italian torpedo with the recast brussels regulation‟ business lawyer (26 june 2015) <http://hazlolaw.com/articles/law-suits-in-the-european-union-disarming-theitalian-torpedo-with-the-recast-brussels-regulation/> (accessed 29 july 2015). gasser gmbh v misat srl (case c/116/02) [2004] 1 lloyd‟s rep 222; turner v grovit (case c-159/02) [2005] 1 ac 101; and allianz spa v west tankers inc (the front comor) (c-185/07) [2009] 1 all er (comm) 435, can all be seen as instances of „italian torpedo‟ action. 34 recast brussels regulation (n 3). case commentary 318 clause, and their jurisdiction to act under the brussels regulation have made the application of the provision extremely difficult, resulting in unnecessarily protracted parallel litigation. unfortunately, the cjeu‟s judgment in the west tankers case failed to bring about any clarity and only succeeded in muddying the waters further. as discussed earlier, the ag in his opinion on the gazprom case referred to the provisions of the recast brussels regulation, although the said regulations would not have applied to a pending case before the cjeu. this article briefly touches upon one of the areas covered under the recast brussels regulation, namely, the arbitration exception covered under recital 12. the changes made to the regulation is referred to as the recast brussels regulation, which came into effect in january 2015, while the gazprom case was still pending before the cjeu. recital 12 seeks to clarify the arbitration exception contained in article 1(2)(d) of the brussels i regulation. paragraph 1 of recital 12 35 states that the recast brussels regulation should not apply to arbitration, and should not prevent courts of member states from referring parties to arbitration, or from staying or dismissing proceedings in favour of arbitration. it also recognises the courts powers to determine if the arbitration agreement is valid and enforceable under domestic laws. paragraph 2 of recital 12 36 provide that a ruling given by a court of a member state as regards the validity of an arbitration agreement should not be subject to the rules of recognition and enforcement laid down in the recast brussels regulation, regardless of whether the court decided on this as a principal issue or as an incidental question. paragraph 3, recital 12 37 provides that a decision of a member state court not to recognise an 35 paragraph 1, recital 12 reads as follows: “this regulation should not apply to arbitration. nothing in this regulation should prevent the courts of a member state, when seised of an action in a matter in respect of which the parties have entered into an arbitration agreement, from referring the parties to arbitration, from staying or dismissing the proceedings, or from examining whether the arbitration agreement is null and void, inoperative or incapable of being performed, in accordance with their national law. 36 paragraph 2, recital 12 reads as follows: a ruling given by a court of a member state as to whether or not an arbitration agreement is null and void, inoperative or incapable of being performed should not be subject to the rules of recognition and enforcement laid down in this regulation, regardless of whether the court decided on this as a principal issue or as an incidental question. 37 paragraph 3, recital 12 reads as follows: on the other hand, where a court of a member state, exercising jurisdiction under this regulation or under national law, has determined that an arbitration agreement is null and void, inoperative the denning law journal 319 arbitration agreement should not preclude that court‟s judgment on the substance of the matter from being recognised or, as the case may be, enforced in accordance with the recast brussels regulation. it is worth noting that the recast brussels regulation does not expressly deal with anti-suit injunctions. under the recast brussels regulation the parties will have little or no incentive to bring proceedings in a member state with a view to obtaining an order that their arbitration agreement is invalid, as such an order will not be recognised in another member state. in short it almost manages to outlaw the “torpedo” actions. 4. is there clarity after gazprom as regards anti-suit injunctions? due to the cjeu‟s earlier decisions, and “torpedo” actions, the english courts have been constrained to adopt a dual policy with regards to the grant of anti-suit injunctions one inward facing towards continental europe where it was almost taboo to issue an anti-suit injunction, and the other outward facing, towards the international community outside eu, where it may issue an anti-suit injunction to protect the rights of a party relying on an english law arbitration agreement. all along, the central philosophy of the cjeu had been couched on the continental-european tradition – i.e., taking a public law approach to issues relating to “freedom of contract,” which is a commercial/private law matter. the common law, as opposed to the continental-european traditions takes a very pragmatic approach 38 to such or incapable of being performed, this should not preclude that court‟s judgment on the substance of the matter from being recognised or, as the case may be, enforced in accordance with this regulation. this should be without prejudice to the competence of the courts of the member states to decide on the recognition and enforcement of arbitral awards in accordance with the convention on the recognition and enforcement of foreign arbitral awards, done at new york on 10 june 1958 („the 1958 new york convention‟), which takes precedence over this regulation. 38 see j harris, „the brussels i regulation and the re-emergence of the english common law,‟ (2008) 4 the european legal forum (e) 181-189. the author observes that anyone defending „…the english methodology would describe it as being pragmatic, flexible and designed to ensure that litigation is expedient, efficient and conducted in good faith.‟ the author, commenting on the decisions of the ecj including gasser gmbh v misat srl; and turner v grovit, notes that the ecj‟s interpretations of the regulation have been consistently literalistic, case commentary 320 commercial matters and seeks to uphold the sanctity of freedom of contract, 39 and in this instance the agreement to arbitrate in stockholm. in the gazprom case, one notices that based on the reasoning that arbitration and arbitral tribunals fall outside the scope of brussels regulation, the cjeu has held that the regulations do not prevent an eu member‟s court from recognizing and enforcing an anti-suit injunction granted by arbitrators. the cjeu has failed to clearly consider the most important aspect that had come to haunt cross-border commerce within the eu and the legal practitioners in some parts of the eu, whether the prohibition of anti-suit injunction issued by member‟s courts as regards parallel proceedings within the eu should remain or lifted. this question gains in significance, especially with the coming into force of the “recast” brussels regulation from 10 january 2015. the cjeu confined itself to an analysis of the compatibility of regulation 44/2001 to anti-suit injunctions ordered by arbitral tribunals. the english law position is simple and clear in this regard. in the event a party to the contract, in breach of an exclusive english law jurisdiction agreement were to commence court proceedings in a foreign jurisdiction, the aggrieved party may lodge an objection before the foreign court, where the proceedings have been so commenced. if in the event the foreign court were to go into the merits of the case, as opposed to first answering its competence to entertain the case, the defendant will be entitled to damages for any losses suffered. 40 the other with very little evidence of the common law‟s role being preserved under the regulation, and failing to protect the sanctity of commercial agreement. 39 tc hartley, „the european union and the systematic dismantling of the common law of conflict of laws‟ (2005) 54 iclq 813, 814. the author notes that lawyers with „civil law‟ background are more concerned with the structure of the law, as opposed to lawyers with „common law‟ training who are more concerned with its operation. 40 swissmarine services v. gupta oil [2015] ewhc 265 (comm). here, the contract of affreightment entered into between the parties contained an exclusive english law and jurisdiction clause, and the defendant in violation of the above clause had brought proceedings before the courts in nagpur, india for defamation and an anti-suit injunction. the proceedings before the indian court was dismissed on the grounds of absence of jurisdiction, which was confirmed on appeal before the mumbai high court, india in may 2014. in the proceedings brought before the english courts by the claimants, it was held that the costs the claimant incurred in relation to the indian proceedings, and those incurred in relation to the anti-suit injunction in england, were losses they had suffered as a the denning law journal 321 option available to the innocent party would be to approach the english court for an anti-suit injunction, seeking to restrain the party in breach of the exclusive jurisdiction agreement from continuing with the foreign proceedings. here, the jurisdiction agreement would also include arbitration agreement. as discussed earlier, in recent years the powers of the english courts with regard to the grant of anti-suit injunctions within the eu have come to be undermined. this again raises the question, if the cjeu missed the chance by not having considered the validity of its judgement in west tankers case? the ag in the gazprom case expressed the opinion that if only west tankers were to be decided under the recast brussels regulation the result would have been significantly different. 41 in his view, application for anti-suit injunctions in support of arbitration agreements would have fallen within the “ancillary proceedings” permitted by recital 12 of the recast brussels regulation. in the gazprom case, an arbitration tribunal had handed down an anti-suit injunction against the claimants who had commenced an action before the lithuanian courts in breach of a london arbitral agreement. as the opinion of the ag is non-binding, the cjeu in the gazprom case did not consider it necessary to clarify the above issue while delivering the judgment. the cjeu was able to hold that recognition of an arbitral anti-suit injunction fell outside the recast brussels regulation, without the need to clarify whether or not the same would have been said had a court in a member state issued the anti-suit injunction. the cjeu noted that an anti-suit injunction issued by an arbitral tribunal does not give rise to issues regarding conflict of jurisdictions as between the courts of member states, and as a result the mutual trust upon which the regulation 44/2001 is based will not apply. the cjeu also noted that any anti-suit injunction issued by an arbitral tribunal will not fall within the scope of the regulation 44/2001, and any recognition and enforcement by a court of a member state of an anti-suit injunction will result from the applicable rules under the new york convention 1958. it is to be noted here that a similar, if not the same conclusion would have been reached if the recast brussels regulation had been applied to the gazprom case. result of the breach of the english jurisdiction clause, and was recoverable as damages. 41 the recast brussels regulation will not apply to the gazprom case as per article 66(1), which runs as follows: „this regulation shall apply only to legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded on or after 10 january 2015.‟ case commentary 322 in summary the decision of the cjeu in the gazprom case makes it clear that i) arbitration is outside the brussels i regulation, that ii) an arbitral tribunal‟s powers to issue anti-suit injunctions is unfettered by the brussels i regulation, and that iii) the courts of the member states while dealing with the recognition and/or the enforceability of an arbitral award are to do so with reference to their domestic laws, which in most cases would be the new york convention 1958. as mentioned earlier, the cjeu did not consider one of the important questions, whether the prohibition of anti-suit injunction issued by member‟s courts as regards parallel proceedings within the eu should remain in place or lifted. one can also conclude from the above that arbitration is not only outside the brussels i regulation but also outside the recast brussels regulation. interestingly, the cjeu was not keen on embarking on a round of discussions on the west tankers judgment and made no reference to the ag‟s opinion on the matter. human rights, 'arranged' marriages and nullity law: when do 'force', parental 178 denning law journal 2015 vol 27 pp 178-203 “defending an englishman’s castle” can i sell my house but continue living in it? the north-east property buyers litigation robert pearce  introduction the maxim “an englishman‟s home is his castle” has its roots in magna carta. english land law has developed from a feudal system which emphasised the authority of the lord: in times long ago most occupiers of land were beholden in some way to their lord for their rights to the land, being obliged to give services in return for their landholding, and to demonstrate loyalty or fealty to their lord. the lords themselves had similar obligations to their lords, and ultimately to the king. hence, it used to be said that all land in england was held directly or indirectly from the crown. magna carta did not undermine the feudal foundations of landholding – that has happened progressively over the years to the point where it now no longer has any real significance. however, it did make it clear that the rights of the king were not absolute. king john had been compelled by his barons to reach the agreement with them which was recorded in the first magna carta (or, to give it its english title, the great charter) signed and sealed at runnymede in 1215. not only did the king need to heed his barons, magna carta importantly established the subsequently developed principle that no person is above the law and that “no free man shall be ... stripped of his rights or possessions ... except by the lawful judgement of his equals or by the law of the land.” it is in congruity with this that it was held in semayne’s case at the start of the seventeenth century that not even agents of the crown may enter a person‟s house without lawful authority. 1 we can trace the maxim that an englishman‟s home is his  robert pearce, bcl, ma, hon lld, frsa, professor of law, university of buckingham law school. 1 see semayne’s case (1604) 5 coke rep 91. the denning law journal 179 castle back to this case. 2 even if an englishman‟s home did not have a motte and bailey, or other fortified defences, it would be protected by the force of the law. this does not mean that landowners have unfettered and unqualified rights to their home. a homeowner is no more above the law than the king (or the barons) and must comply with the laws of the land. landowners cannot hide from the process of law for criminal acts committed within the boundaries of their property; homeowners have legal duties for the safety of visitors (even uninvited visitors); they are restricted in how they use or develop the property by planning laws; most importantly in this context they may find that their security in their own home is compromised if they have used it to secure a loan which they are unable to repay. although the proportion of houses bought for cash has increased to over a third in recent years, 3 the majority of house purchases continue to be financed with the aid of a mortgage. originally mortgages worked by a landowner transferring away legal ownership as security for the loan, but with a right to recover full ownership on repayment of the loan. the surrender of legal ownership made it clear that the castle defences had been breached and that the owner was vulnerable if the loan was not repaid. the anachronistic means of using a transfer of title as the means of granting security for a loan has now been clumsily abolished, 4 but the risk of losing the home if the loan is not repaid remains. as secured loan advertisements remind us: “your home may be repossessed if you do not keep up repayments on your mortgage.” 5 equity release schemes it is not just when a house is purchased that a mortgage may be taken out. rising house prices have meant that some people are asset rich but income poor. it is tempting for a person in this position to seek to access 2 for a more recent invocation of the maxim, see malik v fassenfelt [2013] ewca civ 798. 3 see hamptons international news release 27 march 2014: „buoyant first time and cash buying puts pressure on supply.‟ 4 see stevens and pearce, land law (london, 5 th ed, sweet and maxwell 2013) paras 17.13-17.15 and 17.25-17.28. 5 this is the warning currently given by mortgage lenders and on comparison websites such as money super market: http://www.moneysupermarket.com/mortgages/. can i sell my house but continue living in it? 180 their capital to improve their standard of living. alternatively, the equity in a house arising from progressively increasing house prices may be seen as a source of refinancing debt, or even repaying debt. the north east property buyers (nepb) litigation concerns one way in which this could be done: through a sale and lease back. this kind of arrangement has been common for years in the commercial sector. the owner of property sells it to a finance or property management company. this releases some or most of the capital value in the property. the purchasing company then rents the property back to the seller. in this way the seller retains the use of the property, albeit in return for continuing rental payments. of course, if the rent is not paid, then the seller will lose the use of the property. sale and lease back with mortgage however, as the nepb litigation demonstrates, a failure by the seller to pay rent is not the only risk. if the company purchasing the property has taken out a mortgage to finance the acquisition, then the seller may be at risk if the buyer fails to make the mortgage repayments. this is exactly what happened in the nepb litigation. the nepb litigation nepb operated a scheme under which it bought houses, often from people who had run into debt through illness or unemployment, and offered them the chance to continue living there, often at a substantially discounted rent. it financed the purchases through mortgage loans secured on the properties purchasee. nepb defaulted on the mortgages and the lenders, who were unaware of the arrangements with the sellers, sought possession of the properties from the sellers in order to sell them and redeem the mortgage. press reports suggested that there could be around 2,000 people in danger of eviction. 6 according to detective chief inspector jim mcall, of northumbria police: “if proven, and if it is on the scale alleged, it will probably be one of the biggest property frauds in the country.” 7 6 the journal (newcastle upon tyne) 19 september 2013. http://www.thejournal.co.uk/news/north-east-news/police-cuts-could-damagenorth-6062049. 7 northern echo „arrests in darlington, newton aycliffe and barnard castle‟ tuesday 2 march 2010. the denning law journal 181 were the mortgage companies entitled to evict sellers who had been promised a home for life? nine 8 cases were selected as test cases, and were heard at first instance by judge behrens, sitting as a judge of the high court in leeds. 9 he decided in favour of the lenders. some of the cases were settled, but others were appealed to the court of appeal, which again decided in favour of the lenders. 10 one, involving mrs rosemary scott, went to the supreme court, which also found in favour of the lenders. 11 mrs scott’s case although there were some differences between the facts in some of the cases, most followed the same pattern, and mrs scott‟s case is representative of them all. only the facts of this case are therefore described. rosemary scott and her former husband had bought their house, 23 goathland avenue, forest hill, from north tyneside borough council in 1999 under the government‟s right to buy scheme, which allowed them, as secure tenants, to buy at a discount below open market value. they took out a mortgage from cheltenham and gloucester plc to finance the purchase. a few years later the couple divorced and by 2005 mrs scott, who remained in the house, was in financial difficulties. she owed £70,000 on the mortgage. 12 she advertised the house for sale at £156,000, but was unsuccessful at securing a sale close to this price. she was indirectly introduced to a mr foster, who was connected to nepb. he proposed a deal under which nepb would pay off her cheltenham and gloucester mortgage, and give her £24,000 in cash. she would be allowed to remain in the house indefinitely for £250 per month rent. nepb would charge a fee of £40,000 for this arrangement (this was later 8 lord clarke in scott refers to ten cases [3] but only nine were involved in the first instance hearing before judge behrens. 9 various mortgagors v various mortgagees [2010] ewhc 2991 (judge behrens). 10 cook v the mortgage business plc [2012] ewca civ 17 (cook). 11 scott v southern pacific mortgages ltd [2014] uksc 52 (scott). 12 we do not know how much was paid when the property was purchased from the council, but it was almost certainly significantly less than this: an online search shows that a similar house next door was purchased for £37,500 in 2002. the amount of the mortgage may have been increased after the purchase either to pay for improvements or to buy out mr scott‟s share of the property. there may also have been accrued arrears of interest. can i sell my house but continue living in it? 182 directed to be paid to uk property buyers). if mrs scott remained a tenant for ten years, she would be paid a further £15,000 as a loyalty bonus. if anything happened to her, she was told, her son richard would be able to take over her rights. 13 the offer may have seemed like an answer to her prayers: she would pay off her mortgage, have lower monthly charges, and have cash in hand. mrs scott agreed to this deal, and so the property was sold in 2005 to a ms wilkinson (acting as a nominee or agent for nepb). the sale price recorded was £135,000 and completion took place on 12 august. ms wilkinson obtained a buy-to-let interest-only mortgage for £115,000 from southern pacific mortgages ltd 14 which did not know that mrs scott was living in the house and that she had been made a promise that she could continue living there. it is worth noting in this context that because the rights of a person living at the property are often enforceable against a buyer as overriding interests, it is the expected normal practice for the buyer to inspect the property and to make enquiries of any occupier. if the occupier fails to disclose any rights when asked, those rights will normally cease to be enforceable; it is also possible for the buyer to obtain a written waiver from the occupier. mortgage companies rarely conduct their own enquiries, and rely upon the enquiries made by the buyer and by any valuer. that was the case here. this practice offers little protection to a mortgage company where the buyer (and perhaps also the valuer) is participating in a fraud, or where (as is sometimes the case) the valuer is asked for a “drive-by” valuation which does not involve a visit to the property. on 16 august mrs scott was given a letter confirming the terms of the sale. she was also granted (by uk property buyers acting as agents for ms wilkinson) a two-year assured shorthold tenancy which stated that at the end of the fixed term it would become a monthly periodic tenancy terminable on not less than two months‟ notice in writing. this was in breach of the mortgage which contained terms under which only tenancies of up to a year could be granted. at this stage mrs scott did not know that the property had been mortgaged. the sale and mortgage were registered on 16 september. 13 see the appendix to judge behrens‟ decision which sets out the promises which were made to the occupiers in all the test cases. it is not normally possible for a tenant under a private tenancy to pass a tenancy on to another family member. 14 if this mortgage had borne the relatively low interest rate of 3% the interest payments would have been £287 per month. a more likely interest rate of 5% would have required monthly interest payments of £479. it will be noted that these payments would have substantially exceeded the agreed monthly rent. the denning law journal 183 it was only in august 2008 that mrs scott discovered that there might be a mortgage on the property when she received a letter from north east property lettings “suggesting that there had been teething problems following an office move and that some tenants had been receiving letters from mortgage companies stating that the account was in arrears, which, the letter assured mrs scott, was incorrect.” 15 in 2009, six months later, mrs scott accidentally opened a letter addressed to ms wilkinson at the house. she learnt from this that, without her knowledge, a possession order had been made on march 17, 2009. she subsequently received a warrant for possession due to be executed on may 20, 2009. this warrant was suspended while mrs scott argued her case. buy-to-let fraud although fraud was not proved in this case, the circumstances pointed very strongly to the arrangement being a scam from the outset, and criminal charges were pending at the date of the trial. 16 the arrangements involved a complex web of parties, including nepb (of which lord neuberger in the court of appeal said, “it is unclear what nepb is or comprises.”), 17 uk property buyers, north east property lettings, and a number of other individuals including michael foster and amee wilkinson. there had been some unusual omissions or entries in the mortgage application forms and contract documentation and no visit to the property had been made by the mortgage company. the solicitors advising mrs scott or other victims had not all acted professionally, and may have been dishonest, and some of the solicitors in this or similar cases were subject to disciplinary proceedings. 18 it is very hard to see how the arrangement could have made any commercial sense to nepb if it had operated as intended. mrs scott’s argument the argument for mrs scott was relatively straightforward. she was at all material times living in the house. the proprietary rights of an occupier are normally overriding interests binding a buyer even if those rights have not been protected by an entry on the register at the land registry, 15 scott [22]. 16 at the time of writing this article the trials, which were expected to last several months, were in progress but were subject to reporting restrictions. 17 cook [8]. 18 scott [3] and [24]. can i sell my house but continue living in it? 184 provided that the rights have not been surrendered or waived as part of the sale. mrs scott therefore argued that her rights to the house were overriding interests: she was living in the house when it was sold, and any person acquiring a right in the house did so subject to whatever rights she had. 19 she could not claim a right to the freehold (since she had agreed to sell it). however, her main argument went, the promise to allow her to remain living in the house for the rest of her life gave her a proprietary interest in the home, and since this was in existence when the mortgage was executed or registered, her interest bound southern pacific, the mortgage company. 20 mrs scott loses her case the supreme court considered that mrs scott‟s case was not made out. under the land registration act 2002 section 29 the registration of a mortgage gives it priority over all earlier rights except either those recorded on the register or those which constitute overriding interests. 21 only proprietary rights can be overriding interests, and to be protected as an overriding interest the proprietary right must be in existence when the mortgage is created. in the view of the supreme court, before the sale took place neither nepb nor its agents had any power to grant a proprietary right to mrs scott. until the date of the sale, she therefore had no proprietary right based on their promises to her. applying abbey national building society v cann 22 the sale and mortgage should be treated as taking effect at the same instant, and therefore it could not be said that her rights came into existence before the mortgage. it followed that the mortgage took priority over the promises to mrs scott and the lease in her favour. the mortgage company was accordingly entitled to the order for possession. 19 see land registration act 2002, s 29 and schedule 3. 20 if mrs scott could claim only a tenancy (a recognised proprietary interest), her rights could be terminated by notice bringing the tenancy to an end. she therefore needed to claim that her rights included the promise that she would be secure in the home so long as she paid the agreed rent. 21 the ordinary rule is that rights take effect in the order in which they are created. the effect of s 29 is that certain rights (such as a registered transfer of ownership or a registered mortgage) operate like a trump card to give precedence over certain (unprotected) earlier rights. 22 abbey national building society v cann [1991] 1 ac 56 (cann). the denning law journal 185 abbey national bs v cann at one level the scott case is a straightforward application of the principles set out in the cann case. that, however, was a very different case from scott. mrs cann had helped to pay for a house, 7 hillview, which was being acquired by her son, george, for them both to live in. she knew that he was taking out a mortgage to finance the purchase, but when he failed to keep up the mortgage payments she claimed that she could not be evicted because she had an overriding interest based on her occupation of the property. it was accepted that her financial contribution was sufficient to give her a proprietary interest. 23 the house of lords, however, rejected her argument that she was already living in the house when the registered mortgage was made. although she was in occupation when the mortgage was registered, the house of lords considered that she needed to be in actual occupation before the mortgage was created, which was when the purchase was completed. 24 mrs cann was not at that point living in the house, and it was not enough that she had started to move her belongings in a few hours before completion. in any event, her proprietary interest could only arise when her son had sufficient title to the house, and that did not happen until completion. however, since in the view of the house of lords the mortgage took effect at the very same moment that he acquired title, there was no period before the mortgage was created that he could have given her the rights she claimed. 25 in any event, mrs cann knew that the purchase was to be subject to a mortgage, and impliedly authorised or consented to it. mrs scott, unlike mrs cann, had no knowledge of the mortgage to southern pacific and could not be said to have authorised it or to have agreed to it. equally, it was indisputable that she was in actual occupation 23 on the basis of proprietary estoppel, given an assurance by george that she would always have a roof over her head. the same conclusion would probably now be reached on the basis of constructive trust: see jones v kernott [2011] uksc 53 and stack v dowden [2007] ukhl 17. 24 lord collins (scott [47]) suggests that this part of the decision is confirmed by land registration act 2002, schedule 3, paragraph 2 which refers to „the time of the disposition.‟ with respect the language of the act does not lead inexorably to this conclusion, since the act also states that a disposition does not operate at law until it has been registered. a different view would, however, be inconvenient. 25 the house of lords rejected the argument that there was a momentary fraction of time between george acquiring ownership and the mortgage taking effect. it had been argued that this „scintilla temporis‟ allowed mrs cann‟s rights to arise (or to be „fed‟) before the mortgage took effect. can i sell my house but continue living in it? 186 at the relevant date, whatever it was, since she was in actual occupation throughout. an interest created before completion? it was argued for mrs scott that she had an interest in 23 goathland avenue even before completion. it was said that the contract for sale in favour of amee wilkinson, on behalf of nepb, gave her a sufficient interest in the house to enable her to grant rights to mrs scott. there is long authority that as from the date of exchange of contracts for the sale of land, the seller holds on constructive trust for the buyer. 26 if this gives the buyer an equitable interest, 27 then surely this should be sufficient to enable to buyer to make commitments which bind the land, subject to any registration requirements. in response to this, lord collins pointed out that the constructive trust was of a distinctive kind, and after a careful review of the authorities (a number of which had been concerned with the purported grant of leases by a buyer prior to completion), came to the conclusion that prior to acquiring the legal estate the buyer could create nothing more than personally enforceable contractual rights. 28 mrs scott therefore had no proprietary interest capable of binding southern pacific. a subsidiary argument based on the notion that mrs scott made only a partial grant to ms wilkinson since she reserved rights for herself was rejected because the court viewed the transaction as a sale and leaseback rather than a grant of only the reversion on the lease. 29 the indivisibility of the contract in the view of lord collins, with whom lord sumption agreed, even if equitable rights could arise between contract and conveyance, the logic 26 lloyds bank plc v carrick [1996] 4 all er 630; lysaght v edwards (1876) 2 ch d 499. in ireland the existence of this trust has been confirmed by the land and conveyancing law reform act 2009 s 52 resolving a doubt created by the irish supreme court decision in tempany v hynes [1976] ir 101. see pearce and mee land law (3 rd ed, round hall press, dublin 2011)133-135. 27 in gordon hill trust ltd v segall [1941] 2 all er 379 the court of appeal thought that a contract of sale was sufficient to enable the purchaser to describe himself as the „owner‟ in a contract to sell the property on prior to completion. 28 lady hale agreed with this, so the supreme court was unanimous on this point. 29 scott [77]-[78]. another argument, that mrs scott‟s rights were akin to an unpaid vendor‟s lien, was also rejected. ibid [76]. the denning law journal 187 of cann, supported by other authorities, was that in relation to priorities, the contract could not be treated as distinct for legal purposes from completion: “the contract of sale does, of course, have separate legal effects, but it would be wholly unrealistic to treat the contract for present purposes as a divisible element in this process.” 30 lady hale and lords wilson and reed disagreed with this rather startling conclusion. it might hold true in a case 31 where contract, mortgage and completion were all completed on the same day, it could not be treated as “a general proposition applicable to all ordinary domestic conveyancing transactions.” 32 key issues there were two crucial findings in scott. the first was that a buyer could not, before completion, create any equitable rights capable of binding the land. this was implicit in cann. the second, directly adopted from cann, was that completion was indivisible: the purchase and the mortgage were so interconnected that both took effect at the very same moment; each was subject to the other, and neither had priority. 33 we should not doubt for a moment that these are policy decisions rather than decisions driven by ineluctable logic. most of the legal debate in cann centred on four cases in the early 1950s dealing with whether a lease granted by a buyer after contract but before completion was binding on a mortgagee which had helped to finance the purchase. in the following discussion these are called “the four cases.” 34 30 scott [87]. 31 such as nationwide anglia building society v ahmed and balakrishnan (1995) 70 p & cr 381. 32 scott [120] [121] and [123]. 33 see scott [48]. 34 the cases are coventry permanent economic building society v jones [1951] 1 all er 901 (jones); universal permanent building society v cooke [1952] ch 95 (ca) (cooke); woolwich equitable building society v marshall [1952] ch 1 (marshall) and church of england building society v piskor [1954] ch 553 (ca) (piskor). can i sell my house but continue living in it? 188 creation of rights prior to completion in regard to the inability to create proprietary rights prior to completion, it does not follow that because, prior to completion, it is impossible for a buyer to create a legal right out of a legal estate he does not have, that it is impossible for him to create an equitable right. it is clear beyond peradventure that a person with an equitable interest under a trust has the power to deal with it. this is explicitly recognised in the law of property act 1925. 35 a person with only an equitable interest in land is able to create a valid charge, as has been recognised where one of two coowners purports to create a legal charge by forging the signature of the other co-owner. the charge takes effect as an equitable charge binding the share of the person who executed it. 36 if a contract for sale confers an equitable interest on the purchaser, and there is substantial authority that it does (even though the constructive trust is an unusual one 37 ), there is no reason in principle why the equitable owner cannot carve rights out of it. 38 in jones, the first of the four cases, 39 harman j, a very distinguished chancery judge, thought that a lease entered into by a buyer prior to completion created an effective equitable lease. 40 lord collins says in scott that in jones “the tenants only had personal rights against the purchaser” but he omits to mention that this was because harman j held that the equitable lease, being based on a contract to grant a legal lease, constituted an estate contract, and as such (the property concerned being unregistered land) it was registrable as a class c(iv)land charge under the land charges act 1925; the failure to register it meant that it was void as against a purchaser for money or money‟s worth. 41 35 section 53(1) (c). see pearce and stevens, trusts and equitable obligations (6 th ed, oxford university press 2015) 198-209. 36 thames guaranty ltd v campbell [1985] qb 210 and mortgage corporation v shaire [2000] ewhc ch 452. see stevens and pearce (n 4) para 17.33. 37 lloyds bank plc v carrick [1996] 4 all er 630 at 637g where morritt lj described it as a trusteeship „of a peculiar kind.‟ 38 see gordon hill trust ltd v segall [1941] 2 all er 379. 39 coventry permanent economic building society v jones [1951] 1 all er 901, 903. 40 this is a straightforward application of the rule in walsh v lonsdale (1882) 21 ch d 9. 41 coventry permanent economic building society v jones [1951] 1 all er 901, 903-904. the denning law journal 189 only one other of the four cases picks up the question of whether a buyer can create an equitable lease before completion. this is cooke. 42 the trial judge had held that an orally created lease made by a buyer prior to completion was binding on the building society which had helped to finance the purchase, and he considered that the lease did not require registration under the land charges act. the tenant succeeded on appeal on a different point, but jenkins lj pointed out that the trial judge was wrong on the issue of registration because the land charges act did not confine the need to register estate contracts to those made in writing. 43 by making this point he appears to confirm the view, argued by counsel, that the lease took effect in equity prior to completion. evershed mr, in rebutting the argument that the lease could not be treated as a tenancy by estoppel capable of being enlarged into a legal lease once the buyer received the legal estate, pointed out that the buyer could not confer the privilege of possession on the purported tenant because, prior to completion, she had herself no right to possession. 44 this remark should be considered in its context and it need not be interpreted as an obstacle in a case like scott where mrs scott was already lawfully in possession and the grant of an equitable lease would simply confirm that she had a continuing right to possession. moreover, the difficulty identified by sir raymond evershed would not apply to other types of equitable grant, such as a constructive trust based on a financial contribution or a buyer entering into a sub-contract to sell the land. 45 the indivisibility of completion the four cases all dealt with the question of whether the completion of a purchase and the completion of a mortgage used to finance it were indivisible. the mortgage and the formal deed of transfer are separate documents which are separately executed and separately registered. the 42 universal permanent building society v cooke [1952] ch 95 (ca). 43 cooke [1952] ch 95,104. 44 cooke [1952] ch 95,103. the same proposition was made by judge behrens: various mortgagors v various mortgagees [2010] ewhc 2991 [54]. 45 it is not uncommon for a buyer, particularly of commercial property, to enter into a contract prior to completion to sell the property being purchased to a new buyer (see gordon hill trust ltd v segall [1941] 2 all er 379). such subpurchasers in the past have been able to protect their rights by the registration of a notice on the registered title. if scott is correct in holding that a buyer can create only personal rights prior to completion, such a sub-contract can create personal rights only and therefore cannot be protected by the registration of a notice. can i sell my house but continue living in it? 190 main argument for indivisibility is that, despite these elements of separation, the two transactions are so closely interlinked and interdependent that they should be treated as if they were a single operation. 46 the main argument against indivisibility is that it is only once the buyer has acquired title that it is possible to grant a mortgage. jones 47 was the only one of these cases to conclude that the two transactions were indivisible, and that there was therefore no moment at which the buyer of a property subject to a mortgage acquired a legal title free from the mortgage. in marshall 48 danckwerts j held that the mortgagee could not rely on this argument because the mortgage deed explicitly acknowledged that the mortgagor had title to the estate. in cooke 49 the court of appeal took the same view because the dates of the relevant deeds disclosed that the purchase had been completed a day before the mortgage was signed. in piskor 50 the court of appeal went further and held that, as a matter of general principle, there would always be a gap (a “scintilla temporis”) between the completion of the purchase and the grant of the mortgage. in cann in the house of lords there was some discussion of the process by which mortgage advances are agreed and implemented – inevitably where a purchase is subject to a mortgage the borrower will have agreed the mortgage some time before completion, or even frequently before exchange of contracts. in the end the conclusion was that the purchase and the mortgage should be treated as taking effect simultaneously, because they were so interdependent. the house of lords in cann considered that piskor and marshall were wrongly decided, 51 the former because it flew in the face of reality to suggest that a purchase which was dependent upon a mortgage could be treated as divisible from it, the latter because it placed too much emphasis upon the recitals in a deed. 52 46 even if electronic conveyancing is introduced, eliminating the gap between the execution of a transaction and its registration, the question whether a mortgage and transfer are indivisible remains since the two transactions would still involve different parties and would still not form part of a single operation (unless the system is programmed in a way which produces this effect). 47 coventry permanent economic building society v jones [1951] 1 all er 901. 48 woolwich equitable building society v marshall [1952] ch 1. 49 cooke [1952] ch 95. 50 church of england building society v piskor [1954] ch 553 (ca). 51 cann [1990] ukhl 3, 18 and 27-28. 52 lady hale in scott [110] notes that the separation of the dates of completion and mortgage in cooke mean that the case may have been correctly decided if the sale and mortgage were not interdependent. the denning law journal 191 it is very true that george cann could not have bought 7 hillview without the aid of the mortgage loan. to that extent the mortgage and the purchase were inextricably linked. but equally, he could not have bought 7 hillview without the financial contribution from his mother. 53 why could it not be said that her rights arose at the very same moment as the completion of the sale and the mortgage? lord collins in scott identified statements of lord oliver and lord jauncey in cann which suggested that mrs cann had no rights to 7 hillview prior to completion because until then george had no power to grant them, but those observations would have applied equally to george‟s power to create a mortgage in favour of the abbey national. if the building society‟s rights came into operation at the very instant of completion, why does the same logic not apply to the rights of mrs cann? 54 similarly in scott, even if the purchase and the mortgage were inextricably linked (despite mrs scott not knowing that the purchase would be financed by a mortgage, the purchase and the promise to mrs scott were also inextricably linked. the reality of the situation is that the transfer to amee wilkinson on behalf of nepb would not have taken place were it not for the promises that had been made to mrs scott. if the purchase of 23 goathland avenue was subject from the instant of completion to a mortgage to southern pacific, could it not also be treated as subject from the same instant to the right of mrs scott to live there for as long as she wanted at the discounted rent? instead, and rather illogically, the supreme court appears to treat the finding that the mortgage and completion are simultaneous as meaning inevitably that mrs scott‟s rights must have come into existence only after the mortgage. finding that the rights of mrs cann or mrs scott arose at the same instant as the mortgage would give rise to an interesting question of priority. the normal rule is that priority is governed by the order of creation of rights. 55 the registration of a charge or mortgage gives it 53 a contribution which arose from the sale of the house in which they were previously living. 54 the objection that the purchaser cannot grant rights binding the estate until registration applies equally to the mortgage. lady hale recognises that, notwithstanding that legal title has not vested in the purchaser; the purchaser‟s position is different after completion: scott [113]. 55 this is the normal rule for equitable rights and is confirmed by the land registration act 2002 s 28 which states that „the priority of an interest affecting a registered estate or charge is not affected by a disposition of the estate or charge.‟ there are special rules which apply to registered charges, if there is more than one (s 48), but these are not relevant in this context. can i sell my house but continue living in it? 192 priority over “any interest affecting the estate immediately before the disposition whose priority is not protected” as an overriding interest or by virtue of an entry on the register. 56 if the rights of mrs cann or of mrs scott only came into existence at the same instant as the sale and mortgage took effect, then none of these three interests would have come into existence before the other, not even momentarily. the impact of this on priorities will be considered later. the decision of the supreme court was the supreme court wrong? the conclusion in cann and scott that the coincidence of the transfer of title and the mortgage means that the rights of the occupier in each case can have arisen only after the creation of the mortgage is therefore not a logical conclusion, but a policy decision that the mortgage should have priority. that does not mean that the decision is wrong. there are some good arguments why mortgages should have priority in a situation like this. lord collins said that “there is ... an important public interest in the security of registered transactions.” 57 nearly two thirds of all house purchases are financed with the aid of a mortgage. if mortgage lending were made more difficult or risky, it might make mortgages harder to obtain or more expensive. on the other hand, the supreme court said in scott that “the court‟s duty is to apply the law irrespective of an unexpected impact on conveyancing practice and an adverse effect on the risks of secured lending.” 58 lady hale’s reservations baroness hale reluctantly agreed with the decision on the grounds that ms wilkinson could not grant anything other than personal rights on mrs scott up until the date of completion. she had, however, some concern about the harshness of the result. having earlier 59 noted that the court had been asked “to distinguish cann but not to bury it,” she confessed to uneasiness with confirming the decision. 56 land registration act 2002 s 29. 57 scott [25]. 58 scott [88]. 59 scott [114]. the denning law journal 193 “first, cann was not a case in which the vendor had been deceived in any way or been made promises which the purchaser could not keep. should there not come a point when a vendor who has been tricked out of her property can assert her rights even against a subsequent purchaser or mortgagee? second, cann was not a case in which the lenders could be accused of acting irresponsibly in any way. should there not come a point when the claims of lenders who have failed to heed the obvious warning signs that would have told them that this borrower was not a good risk are postponed to those of vendors who have been made promises that the borrowers cannot keep? innocence is a comparative concept. there ought to be some middle way between the “all or nothing” approach of the present law.” 60 she welcomed the fact that the law commission had announced that it intended to review the land registration act 2002 including the impact of fraud. were lady hale’s reservations justified? baroness hale was right to have reservations. although there was no explicit finding of fraud in the case, it is hard to avoid the conclusion that mrs scott was made promises that could not be kept. she may have exercised a lack of caution about the arrangement, but she was short of money and used apparently reputable solicitors, 61 although they were chosen and paid for by nepb. she must have signed the contract for sale which lord collins said provided that the sale would be with vacant possession 62 although the alternative provision in the conditions of sale stating that the sale was subject to specified tenancies had neither been deleted nor completed. 63 she should also have seen the requisitions on title which said that arrangements should be made with her about the time at which vacant possession would be given and for arrangements for handing over the keys. 64 but if there was a degree of fault on her part, southern pacific could not avoid all responsibility. the failure to complete or delete the alternatives in the contract should have been 60 scott [122]. 61 the author confesses to a personal interest. the firm acting for mrs scott also acted as his solicitors for his first house purchase. 62 scott [78]. 63 scott [19]. 64 scott [18]. can i sell my house but continue living in it? 194 noticed by them or their solicitors; even though this was a buy-to-let mortgage, neither they nor their agent visited the property, nor was mrs scott asked if she had any continuing rights. in this respect southern pacific relied on the honesty and candour of the purchaser. the solicitors acting for mrs scott also informed southern pacific‟s solicitors that the lenders needed to be informed that part of the proceeds of the sale were being paid to uk property buyers, which indicated that this was not a normal outright sale. 65 baroness hale may have been overstating her concern that an irresponsible lender could never be affected by the right of a vendor who was duped into selling by having been given unenforceable promises. there are equitable doctrines which may enable some lenders to be bound. on the principle that “fraud unravels all”, a mortgagee who knowingly participates in a fraud will not be able to rely on the mortgage security. 66 the equitable wrong of knowing receipt of trust property in breach of trust applies to misappropriated property, and the supreme court has suggested that it will operate where a bank receiving the proceeds of a dishonest dealing should have been aware from the circumstances that the transaction served no commercial purpose. 67 judge behrens at first instance 68 correctly thought that the equitable doctrine of notice had no application in registered land 69 and so rejected the possibility that the mortgagee‟s priority could be affected by notice of an adverse right. there was no appeal against that finding, which the court of appeal thought meant that mrs scott was precluded from making the argument that the mortgagees were estopped from enforcing their security if it was established that they had knowledge or notice of the promises made to 65 scott [91]. 66 see quennell v maltby [1979] 1 wlr 318 (mortgage used as a device to avoid rent acts protection); pearce, [1979] clj 257. it should be borne in mind, however, that in midland bank trust co ltd v green [1981] ac 513 the house of lords held that relying on one‟s legal rights to defeat the rights of another does not, in itself, constitute fraud. there would therefore need to be something more than knowledge of an adverse right to constitute fraud. 67 credit agricole corporation and investment bank v papadimitriou [2015] 2 all er 974 [33]. 68 judge behrens [2010] ewhc 2991. 69 judge behrens [64] applying a statement of lord wilberforce in barclays bank v boland [1981] ac 487 at 584. see also the law commission‟s criticism of peffer v rigg [1978] 3 aer 745 law com no. 158 (1987) para 4.15. the denning law journal 195 mrs scott. 70 with respect there is a significant difference between this and knowledge or notice of the impropriety of a transaction. equal priorities is it possible to have equal priorities? the idea that priorities can be equal is a novel concept in land law. judge behrens at first instance thought that this was not possible. in his view “there cannot in law be a „dead heat‟ between two mutually inconsistent and competing interests over a legal estate in land. there must be a priority as between them.” 71 however, a dead heat indeed appears to be the outcome of the conclusion that rights which a purchaser purports to create between contract and completion can only take effect at the moment of completion. the house of lords in cann concluded that this meant that the mortgage had priority, but it has already argued that there is no a priori reason why it should have been given this preference. to explore this further, consider this scenario. if p buys a house with money stolen from b, b can assert a claim to an equitable interest in or charge over the house. this claim cannot take effect prior to completion, because of the rule derived from scott and cann that a purchaser cannot create rights binding an estate prior to completion and also because until that stage none of the money has been invested in the purchase. the equitable interest or charge will arise at the moment of completion. but suppose that the purchase is also supported by money raised on mortgage. the mortgagee‟s claim to the property also arises at the moment of completion. apart from the effect of registering the charge, it is hard to see how the priorities could be anything other than equal. registering the charge, however, makes no difference to priorities, because registering a charge only confers priority over unprotected rights affecting the estate “immediately before the disposition.” 72 it would require a stretch of purposive interpretation to interpret that phrase as describing rights which came into existence only at the same time. in consequence, there would be two rights with equal priority. the same consequence would arise if a dishonest purchaser funds a purchase with money stolen from two or more sources. 73 70 cook [2012] ewca civ 17 [66]. 71 judge behrens [2010] ewhc 2991 [52]. 72 land registration act 2002 s 29. 73 the financial advantage to the fraudster in this situation could arise either through collusion with the vendor or because the purchase is from another entity can i sell my house but continue living in it? 196 priorities involving registrable dispositions there are a number of ways in which potentially equal priorities can be addressed. it is often assumed that where a priority issue arises between interests that require registration as registrable dispositions, the normal order of priority is the order in which they are registered. 74 that order will normally follow the date and time of receipt of the registrable disposition (subject to any priority notice), but where applications are deemed to have been received at the same time 75 the order of priority is as the parties agree, 76 with the land registrar having tie-breaking power. however, “where one transaction is dependent upon another the registrar must assume (unless the contrary appears) that the applicants have specified that the applications will have priority so as to give effect to the sequence of the documents effecting the transactions.” 77 since the creation of a mortgage is dependent upon the grantor having an estate which can be charged, this would appear potentially to be at odds with the ruling in cann and scott, although of course that ruling was based on both purchase and mortgage being mutually interdependent, a situation not envisaged in this clause. priorities involving dispositions which are not both registrable where a question of priorities arises between rights which are not both registrable dispositions, two equitable maxims may be relevant. the first is that where equities are equal, the first in time prevails. that will be of no assistance where the priorities issue arises because the rights arise at the same moment. the second is that where equities are equal, the law prevails. that would confirm the outcome in cann and scott provided that under the control of the fraudster: compare target holdings v redferns [1995] ukhl 10. 74 this is in part because the priority rule in land registration act 2002 s 29 gives registered dispositions priority over earlier unprotected interests. in relation to mortgages the rule used to be that the date of registration (not of creation) governed priority between mortgages (land registration act 1925 s 29). the 2002 act is less explicit, but the land registration act 2002 s 48 and land registration rules 2003 rule 102 in combination have the same effect. 75 under land registration rules 2003 rule 15 this can happen where there is a delay in recording the time of receipt. 76 land registration rules 2003 rule 55. 77 land registration rules 2003 rule 55(7). the denning law journal 197 the equities are, indeed, equal. however, where the equities are not equal, for instance, borrowing lady hale‟s observation, because the parties are not equally innocent, a different outcome would be justified, and the court can give the more innocent party priority. in addition, it should not be overlooked that there can be situations where the courts have to resolve equal priorities. where a trustee has misappropriated and mixed funds from two different sources, for instance where the author of a ponzi scheme has taken investments from a range of different individuals and put them in a common fund, the preferred judicial solution is that the defrauded individuals should share the fund proportionately to their contribution to it. 78 it may be objected that the principle of share and share alike can apply only to financial contributions, and so could have no application to a situation like scott, where mrs scott‟s claim was primarily to a right to live in the house for a discounted rent. 79 however, rights of residence are capable of actuarial valuation, 80 and where the interest claimed arises from an estoppel equity, the courts have long asserted a right to assess appropriate compensation rather than conferring a right in specie. 81 finally, there appears to be no reason in principle why the courts should not be able to use principles of equitable accounting to resolve competing rights having equal priority. they have long done so in unravelling the affairs of co-owners whose relationship has broken down. 82 the impact on the parties mrs scott the decision of the supreme court in scott left mrs scott at risk of losing her home of many years. however, her financial loss may not have been as great as might at first sight appear. she had put her house on the market for £156,000 and, if the promises from nepb on the sale were not enforceable, received just £94,000 for it. that may make it seem that she could have lost as much as £62,000 compared with the open market value 78 see barlow clowes international ltd v vaughan [1992] 4 all er 22. see the discussion in pearce and stevens, trusts and equitable obligations (6 th ed, oup 2015) 978-983. 79 she had also been promised a further payment of £15,000 after ten years. 80 see bracken v byrne [2006] ilrm 91. 81 dodsworth v dodsworth (1973) 228 eg 1115. see the discussion in stevens and pearce (n 4) 734-746. 82 stevens and pearce (n 4) 411-420. can i sell my house but continue living in it? 198 of her house. however, most or all of the houses in goathland avenue were former council houses built at the same time and to a similar specification, and none has ever sold for anything close to the price which mrs scott was asking. according to land registry data, the immediately neighbouring property on one side (number 21) sold for £130,000 in 2009 and the immediate next door property on the other side (number 25) sold for £112,000 in 2014. even the price of £135,000 for which the land registry records mrs scott‟s sale as having taken place in 2005 may have been high 83 unless 23 goathland avenue was a particularly attractive property compared with its neighbours. 84 a better estimate of the extent to which mrs scott personally received less than full open market value is therefore that it was probably less than the £40,000 which nepb had identified as its “cut”. if the property was being sold on the open market subject to mrs scott‟s right to remain at a rent of £250 per month, then this would have reduced the market value of the house subject to her tenancy by around 25% or more, and might not have been enough even to redeem her mortgage. a more cautious person than mrs scott might have realised that the deal was too good to be true. mrs scott knew when she struck her deal with mr foster that she would cease to own her own home. however, she did expect to be able to stay on as a tenant for £250 per month, and that represented a substantial benefit compared with normal market rents, which at usual rates of return on rental properties 85 is likely to have been in the order of £500 to £650 per calendar month. mrs scott gained some benefit from that discounted rent since at least three and a half years elapsed before she was served with the order for possession. that represents a saving of around £11,000 in rent. 83 since nepb was „retaining‟ £40,000 of this price, the real sale price was £95,000. the price may have been inflated in order to enable a higher mortgage loan to be obtained. see the law society description of equity release fraud in its practice note on mortgage fraud para 2.4.1 http://www.lawsociety.org.uk/support-services/advice/practice-notes/mortgagefraud/ accessed june 2015. 84 rightmove data suggests that average house prices in the ne12 area rose by about 10% from 2005 to 2008, with relatively little movement over the period 2006-2014, apart from a modest peak in 2008. see http://www.rightmove.co.uk/house-prices-in-myarea/markettrendstotalpropertiessoldandaverageprice.html?searchlocation=ne 12+8ha&sellerspriceguide=start+search accessed june 2015. 85 typically this is a gross rent of 5% of the property value, although there are significant variations from this average. the denning law journal 199 north east property buyers nepb appears to have set up this kind of arrangement for at least 100 properties, and possibly very considerably more. it might seem that nepb stood to benefit by £40,000 on 23 goathland avenue – the fee that it was claiming for the deal – but its actual “turn” is likely to have been far less than this because the sale price of £135,000 was never paid. ms wilkinson, on nepb‟s behalf, took out a mortgage of £115,000 (£113,000 after fees), which is the only money that nepb ever received on this property. out of this it discharged mrs scott‟s mortgage and paid her £24,000. this left a balance of £19,000 less expenses, plus any rent which mrs scott paid. against this, it incurred mortgage interest charges (which cannot have been paid in full) which would have amounted over three and a half years to about £15,000 to £20,000, exceeding the rent which mrs scott paid, and wiping out a significant proportion of the capital it received. furthermore, if nepb met the terms of its bargain, it would not be able to sell the property with vacant possession while mrs scott or her son wished to live in the house, and it also had a liability to pay her a further £15,000 after ten years. it could only make a profit from this arrangement if it was fraudulent and it did not meet its obligations. southern pacific mortgages ltd southern pacific lent ms wilkinson £115,000. if the property was genuinely worth £135,000 at the time of the mortgage, it had good security for the loan, but there is a strong possibility that the price of the property was inflated in order to enable nepb to obtain a higher loan than would otherwise have been the case. by the time of trial, it is likely that the mortgage debt would have increased greatly in consequence of accumulated arrears of interest and legal fees. southern pacific would therefore be unlikely to repay the debt in full even from a sale of the property with vacant possession. the supreme court did ask the mortgagee to show mercy. lord collins said „i express the hope that the lenders will, before finally enforcing their security, consider whether they are able to mitigate any hardship which may be caused to the vendors.‟ 86 as at june 2015 (eight months after the judgment) there was no indication from publicly available records that 23 goathland avenue had been sold or was actively being marketed for sale. there is therefore a strong possibility that southern pacific have agreed to defer enforcing their 86 scott [94]. can i sell my house but continue living in it? 200 security on terms that mrs scott makes periodical payments towards mortgage interest. what might have happened if there was full disclosure? southern pacific would not have agreed to a mortgage based on full open market value if it knew that it was purchasing a property which was subject to a tenancy at a discounted rent, since this would significantly have depressed the value of the property. they were prepared to lend on a buy to let basis, but the mortgage terms envisaged that ms wilkinson could grant only assured shorthold tenancies with a maximum duration of six months before becoming period tenancies determinable on two months‟ notice. a tenancy of this duration would not have given mrs scott the rights she was expecting. the lease which was actually granted to mrs scott was for a fixed two year term, thereafter determinable by two months notice. even if this had been binding on southern pacific, it would have given mrs scott negligible protection because by the time possession proceedings began the two year fixed term had long expired. mrs scott had, however, been led to believe that she could stay in 23 goathland avenue as long as she wanted. it is not actually possible in law to grant a tenancy which cannot be terminated by the landlord so long as the tenant wishes to remain in possession, since the supreme court has affirmed the rule that leases must have a fixed duration. 87 there are some drafting techniques which can avoid this rule, such as granting a lease for 99 years with a provision allowing notice to be given by the landlord only after mrs scott‟s death, but of course nothing like this was drafted by nepb. 88 it is also possible for an agreement intended to create a tenancy for an uncertain term which cannot be terminated during the lifetime of the tenant to be treated as a lease for life which will be converted automatically by statute into a lease for 90 years determinable on the death of the tenant, 89 but again this was inconsistent with the documentation drafted by nepb. the promise to allow mrs scott to remain in 23 goathland avenue for as long as she wished could be treated as a contractual licence, 90 but this would be enforceable only between mrs scott and nepb, and would not create any interest binding on southern pacific. it therefore seems that, 87 berrisford v mexfield housing co-operative ltd [2011] uksc 52. 88 provision could also be made to allow mrs scott‟s son to succeed to the tenancy. 89 berrisford v mexfield housing co-operative ltd [2011] uksc 52. 90 southward housing co-operative ltd v walker [2015] ewhc 1615 [95]. the denning law journal 201 even if southern pacific had been fully aware of the circumstances, the relatively vague and informal promises to mrs scott would have meant that only an interest arising by proprietary estoppel could have been asserted with any prospect of success. it is unlikely that any lender would want to advance funds knowing that it was bound by promises like those made to mrs scott. since nepb required mortgage funding for its model, it follows that the deal with nepb could not have been executed. absent a white knight, the only option left to mrs scott would have been to reduce substantially the asking price she was seeking for her house, to sell, and to move into rented accommodation for which she would have to pay the full market rent. she might have had a little more capital (depending upon the sale price she was able to obtain), but her overall position would not have been vastly different from that she found herself in as a result of the failure by nepb to honour its promises. conclusion implications for the future lord collins claimed that the kind of arrangement examined in scott was now relatively rare. he explained that sale and leaseback arrangements had become very popular in the early part of the century, but they came within the regulatory authority of the financial services authority in 2009, and by february 2012 the fsa reported that in practice the entire market had shut down. 91 with respect, while it may indeed be true that sale and leaseback arrangements can no longer legitimately be marketed, it does not follow that they are not offered illegitimately by unscrupulous operators. ponzi schemes are illegal, but almost every year a new example comes to light. mrs scott‟s real problem was not that she entered into a sale and leaseback scheme, but that she was induced to sell her home by promises which could never have been honoured, and which were probably never intended to be honoured. she was almost certainly the victim of fraud, and fraud is, regrettably, only too common. lord collins is therefore wrong to dismiss rosemary scott‟s case as an isolated example which is unlikely again to occur. the implications of the case have far wider implications than just for the several score cases which were awaiting the outcome of the supreme court decision. 91 scott [1][2]. can i sell my house but continue living in it? 202 magna carta and the rule of law the primary motivation of the barons when they compelled king john to accede to the great charter was undoubtedly the protection of their own privileges and freedoms. however, magna carta has proved to be the bedrock on which have been laid those great cornerstones of our constitution, the principles of democracy and the rule of law. freedom from the arbitrary or capricious depredations of the crown – an aspect of the rule of law directly traceable to magna carta – has given real substance to the maxim that an englishman‟s home is his castle. what the north east property buyers litigation demonstrates is that this protection is not enough to keep a person secure in their own home. the litigation shows that the defences of the englishman‟s castle are not absolute, and that the castle walls may come tumbling down from attacks from other quarters. the source of that attack may not be obvious. donald rumsfeld famously said: “there are known knowns; there are things we know we know. we also know there are known unknowns; that is to say we know there are some things we do not know. but there are also unknown unknowns, the ones we don‟t know we don‟t know.” 92 mrs scott would have known that if she did not pay her mortgage before the deal with nepb, or her rent thereafter, that her home might be repossessed. she probably knew that she did not know how she would be able to finance her own mortgage if she had been unable to find a buyer and the offer from nepb had not been made. but what she almost certainly did not know that she did not know was that the promises which nepb had made were in practice worthless, that it had used a mortgage to finance the transaction, and that if it did not keep up the mortgage payments her home might be repossessed. tenants know that if they do not pay the rent they are likely to lose their home; very few of them will be aware that if their landlord has a mortgage which remains unpaid, they may also face repossession. 92 donald rumsfeld, us secretary of state, on 12 february, 2002, answering a question at a press conference about the evidence showing iraq‟s possession of weapons of mass destruction. the denning law journal 203 the personal impact fraud – which was almost certainly involved in this case – has a shattering upon its victims. few are likely to cry for the mortgage company, which although impacted, has relatively broad shoulders and can amortise the effect of the fraud across other parts of its portfolio. the effect upon the householders who have been deluded by unenforceable promises is much more stark. paula harris, who was the lead solicitor acting for the tenants in the north east property buyers litigation has said of the supreme court decision: “the judgment is a devastating disappointment for the tenants.... the supreme court has made it very clear that the tenants are innocent victims in this matter, but the current law does not give those tenants a right which takes priority over a mortgage company. however, the law commission is currently consulting on reforms which we hope will protect tenants in similar situations in future. sadly, this will not be in time to help those unfortunate, innocent tenants of nepb.” 93 93 see http://www.davidgray.co.uk/2014/10/north-east-property-buyers-litigationthe-supreme-court-gives-judgment/ accessed june 2015. the discretion of the judge the right hon. lord justice bingham* a judge of my acquaintance once told me that when, in the course of trying a case, he encountered any problem of unusual difficulty, it was his practice to glower at counsel in his most forbidding manner and demand "is this not a matter within my discretion?" on counsel agreeing that it was which it seems they readily did he would sink back in his chair with relief, relaxed in the knowledge that no matter what he decided his decision would be immune from successful challenge on appeal. the complaisance of counsel may seem surprising, given the consequence for their clients of a decision being regarded as discretionary. but judges and practitioners have, i think, habitually used the expression "judicial discretion" in a variety of senses, and academic writers have used it in a different sense again. this lack of consensus is also surprising. since at latest 1581, iauthoritative voices on both sides of the atlantic, coke2, mansfield3 and marsha1l4 among them, have urged that the discretionary powers of judges and justices be strictly limited and controlled by the law to avoid the arbitrariness of an unpredictable personal decision. right down to this century, strong language has been used. "to remit the maintenance of constitutional right to the region of judicial discretion", said lord shaw of dunfermline in 1913, "is to shift the foundations of freedom from the rock to the sand."5 or as justice william douglas put it, "absolute discretion, like corruption, marks the beginning of the end of liberty."6 lord simon of glaisdale expressed the traditional view when he said, speaking on the judicial discretion to admit or exclude evidence, "and if it comes to the forensic crunch ... it must be law, not discretion, which is in command."7 • the royal bank of scotland lecture, oxford universiry, printed by arrangement with lord justice bingham, and the royal bank of scotland. i. lambarde, eirenarcha, 58. 2. prohibitions del roy (1607) co. rep. 63, at 64-65. 3. r. v. wilkes (1779) 4 burr. 2527, at p.2539. 4. osborn v. the bank of the united states (1824) 22 u.s. 738, at p.866. 5. scott v. scott [1913] a.c. 417, at p.477. 6. state of new york v. united states (1951) 342 us 822, at p.884. 7.d. v.nspcc [1978] a.c. 171, at p.239 g. 27 the denning law journal any lack of certainty as to what judicial discretion is may also be thought undesirable. for if, as these warnings suggest, judicial discretions are dangerous as capable of leading to arbitrariness, it is as well judges should be quite clear when they are exercising a discretion and when not, and if the exercise of a discretion is a barrier (whether or not surmountable) to an appeal then appellate judges should similarly recognise when the barrier exists and when it does not. i am vividly aware that he who defines invites scholarly refutation, and to attempt the task in this forum may reasonably be thought foolhardy. i shall nonetheless proffer a definition, and briefly defend it. on the assumption that my definition is broadly acceptable, i shall then suggest that the role of judicial discretion is now narrowly confined. i shall further suggest, with appropriate apologies to mr dunning, as he then was, that its role has decreased, is decreasing and need not in general be much further diminished. the dragon of arbitrary discretion has not been slain, but it has been domesticated and put on a short leash. according to my definition, an issue falls within a judge's discretion if, being governed by no rule of law, its resolution depends on the individual judge's assessment (within such boundaries as have been laid down) of what it is fair and just to do in the particular case. he has no discretion in making his findings of fact. he has no discretion in his rulings on the law. but when, having made any necessary finding of fact and any necessary ruling oflaw, he has to choose between different courses of action, orders, penalties or remedies he then exercises a discretion. it is only when he reaches the stage of asking himself what is the fair and just thing to do or order in the instant case that he embarks on the exercise of a discretion. i believe this definition to be broadly consistent with the usage adopted in statutes. there are of course numerous statutes which confer a discretion on the court, describing it as such; many of these relate to the award of costs, the imposition of criminal penalties and the exercise of procedural powers, all of them pre-eminently discretionary fields. to some examples i shall return. but often a discretion is conferred although not so described: " ... may, in accordance with the rules of court, extend any such period to such extent and on such conditions as it thinks fit ... ";8 "may order that such party be at liberty to inspect and take copies of any entries in a banker's book ... ";9 "may ... as it thinks fit", "may ... as the court thinks just"; "may impose such other condition as it thinks fit";lo "on an application under this section the court may make or refuse to make the declaration asked for ... ";11 and so on, almost ad infinitum. a discretion is conferred whichever form of words is used. while my exploration of the statute book is far from comprehensive, i have encountered only two provisions which are inconsistent with my suggested 8. maritime conventions act 1911, s.8. 9. bankers' books evidence act 1879, s.7. 10. housing act 1988, s.9(1)(2)(3). ii. local government finance act 1982, s.19. 28 the discretion of the judge definition. the first is in section 2 of fox's libel act 1792 which provides "that, on every such trial, the court or judge before whom such indictment or information shall be tried, shall, according to their or his discretion, give their or his opinion and directions to the jury on the matter in issue between the king and the defendant or defendants, in like manner as in other criminal cases." i would have to admit that the direction which a judge gives to a criminal jury on the law is not now a matter of discretion within my definition. but the next section uses the term in my sense: it provides that nothing shall "prevent the jury from finding a special verdict, in their discretion, as in other criminal cases." the second exception occurs in section 25 of the children and young persons act 1933, the product of an age happily innocent of teenage pop-stars and tennis prodigies. it forbids anyone having the custody of a person under 18 to cause or permit such person to go abroad for the purpose of singing, playing, performing or being exhibited for profit without a licence from a police magistrate. the magistrate may vary or revoke such a licence "for any cause which he, in his discretion, considers sufficient."12 now i would have no quarrel if the magistrate were given power in his discretion to vary or revoke for sufficient cause, and that may be what the sub-section means, but i could not accept that a cause could be sufficient simply because the magistrate considered it so. the sub-section may, however, only be intended to provide that the police magistrate's judgment on sufficiency should be final, not an unusual provision when decisions are entrusted to administrators. these exceptions may scratch the paintwork of my definition; they do not, i think, hole it below the water-line. it might be thought unnecessary to stress that the judge has no discretion in making findings of fact. but judges do sometimes describe fact-finding as discretionary. that learned and accurate judge, the late sir brian mac kenna (who resembled gibbon in nothing save his account of what he owed the university of oxford), referred to "the judge's other great discretionary power, that of finding the facts when he tries a case alone." 13lord brightman referred to the existence or non-existence of a fact as being left to the judgment and discretion of a public body.l4 justice barak of the israel supreme court has written "the first area of judicial discretion deals with deciding the facts."15 now it is one thing to say that the responsibility of finding the facts is entrusted to a particular person or body, be he judge, arbitrator, official or public authority, and that such finding is to be treated as conclusive or virtually so. but it is quite another to describe that function as discretionary. it is, i suggest, nothing ofthe kind. in finding the facts the judge's job is to consider all the conflicting evidence this way and that and decide as best he can where the truth lies. it is very much the task performed, for instance, by the historian or the journalist as part of his stock in trade. the judge is 12. s. 25 (5)(a). 13. "discretion", the irish jun'st , vol. ix (new series) i, at p.9. 14. r. v. hi/lingdon london borough council, ex p. pulhofer [1986] a.c. 484, at p.518. 15.judicial discretion (1989), at p.l3. 29 the denning law journal of course constricted by formalities and rules of evidence which do not afflict them. on the other hand, he has powers of compelling testimony which they would envy. it is nonetheless essentially the same function. yet to say of a historian or a journalist that he exercised a discretion in reaching conclusions of fact would, i suggest, be regarded as libellous. the judge must exercise judgment, not discretion, in finding the facts, and it is usually the most difficult and often the most exacting task which the civil trial judge has to undertake. it calls for a degree of rigour which is disguised by references to choosing between competing accounts of a disputed event or preferring the evidence of one witness to that of another, and to speak of discretion in this context is to open the door to potentially dangerous habits of thought. it can lead to such absurdities as assessing expert evidence on the demeanour of the expert or such errors as finding a fact to be established because it has been denied by a witness held to be unreliable. it can encourage excessive reliance on the judge's hunch and intuition, neither of them an invariably safe basis for decision. 16the judge must decide, in as objective a manner as the materials permit, which version of a disputed event (if either) he accepts as the more convincing; once he has done so he has no choice, whether that conclusion makes the overall resolution of the case more difficult or less so. when reference is made to the trial judge's discretion to decide the facts, what is really meant is that appellate courts will usually be reluctant to interfere with his findings because he, having seen and heard the witnesses, is in a better position to decide whose evidence is reliable than anyone else. in cases turning largely on oral evidence, this is doubtless very often true: the trial judge's immediate contact with the witnesses and the unfolding drama of litigation gives him insights denied to those who come later. it is the advantage which the journalist on the scene at the time enjoys over the historian. and even if the judge may be wrong, no one else can be sure of being right. but it is well, even in this class of case, to preserve a measure of scepticism. as lord wilberforce has recently observed: "english judges entertain the belief that they can tell if a man or even a woman is speaking the truth. this is a palladium: and it has comforting consequences: 'the judge saw the witness in the box observed his demeanour'. 'he was disbelieved by the judge or the jury'. 'we (the appeal court) cannot interfere'. but there is not much scientific basis for this. such studies, as i know of, show that liars are believed as often as truth-tellers are disbelieved. and one can test it with multiple tribunals e.g. arbitrations, whether all british or from different nations. i can give several instances where exactly opposite views as to credibility were confidently given by members of such tribunals a fact which encourages people to avoid oral evidence before them. indeed, one often finds foreign arbitrators irritated with the english style of examination and cross-examination it is not a good way of getting at the truth or persuading the tribunal."17 16. and seecurrem legal problems (1985) 1, at p.7. 17. 5 arbitration imernational (1989), at p.349. 30 the discretion of the judge further, the very implediacy of the trial judge's impressions can sometimes cloud his judgment. there are, i thjnk, more cases than is generally acknowledged, particularly those largely dependent on documentary or expert evidence, in which the insights of the trial judge are less reliable than the more detached reflection of an appellate court as those of the journalist sometimes are than those of the historian. i fear i have digressed, but i would wish firmly to exclude the notion of discretion from the very important area of factual decision. in boldly asserting that a judge does not exercise discretion in giving his rulings on the law i have, i appreciate, side-stepped a very high level philosophical debate conducted by professors hart, dworkin, maccormick, raz and others. 18 i fear that my offering on the sergeant directed to take his five most experienced men on patrol would be of small value anyway, but it is plain that decisions on the law fall well outside my definition of judicial discretion. this is not in any way to criticise the usage of others; the english language is a rich pasture open to all. but on this point at least i think i can rely on the invariable usage of the practising profession in this country. it is a distinction regularly drawn when leave is sought to appeal against an interlocutory decision, the judge's usual practice being to grant leave if he has decided a question of law and to refuse it if he conceives himself to have exercised a discretion. there may well be uncertainty where discretion begins and ends but there is unanimity that it falls short of legal rulings. i would, however, offer one observation prompted by the philosophical debate. there are occasions when judges think that they are required to elect between different legal solutions and, in effect, create new law. usually, even in cases that turn on the law, the question is whether the given case falls within an established principle or which of two established principles governs it. but there are occasions when existing lines of authority fall short of the given case and the question is whether they should be extended to cover it. donoghue v. stevenson19 is perhaps the most obvious example; hence, no doubt, the divergence of opinion in that case. there are other, rarer, occasions when a problem seems to occur in an authoritative desert, where the usual aids principle, precedent, dicta and the opinions of learned authors are virtually absent. the judge cannot then simply extend the line on an existing graph of authority because there is none. it is surely true that when judges buttress their conclusions with references to public policy, commercial good sense, certainty, good industrial relations and so on it is because they are conscious of making a choice and are, quite properly, concerned to justify the choice that they have made. the role of discretion in the balancing exercises which the courts are, it seems increasingly, invited to carry out is not altogether easy to determine. for instance, in balancing the public interest in withholding official documents against the public interest in the administration of justice,2° or in weighing the competing 18. see,e.g. , h. l.a. hart, the concept of law (1961); r. dworkin, taking rights sen'ously (1977); n. maccormick,legal reasoning and legal theory (1978); j. raz, the authority of law (1979); a. barak, judicial discretion (1989). 19. [1932] a.c. 562. 20. conway v. rimmer [1968] a.c. 910, at p.952 a. 31 the denning law journal public interests in disclosure and non-disclosure,21 or for and against publication22 or in the maintenance of confidence against disclosure,23 or between maintaining professional confidences and protecting the public against possible violence,24 is the judge exercising a discretion and if so to what extent? some would, i think, regard this exercise as largely if not wholly discretionary.25 but i do not think the factors to be put into the scales are the subject matter of discretion. they are matters established, or held to be established, by evidence, or more rarely matters of which judicial notice may be taken. discretion has nothing to do with that, as i have already suggested. in the english spycatcher26 litigation, for instance, detailed evidence was adduced to show why publication would damage national security; the trial judge discounted most of this, but in doing so he was not, at least in my terms, exercising a discretion. in assessing the weight to be given to various factors for and against any decision, much must of course turn on the judgment of the individual assessor, and for this reason an appeal court will be slow to interfere with a value judgment on which reasonable minds could differ. strictly, however, i think it is probably only at the last stage of striking a balance and granting or refusing relief that one moves into the realm of pure discretion. for this view, i hope i may enlist the aid of lord diplock. in birkett v. james,27 speaking of interlocutory decisions, he said: "they are decisions which involve balancing against one another a variety of relevant considerations upon which opinions of individual judges may reasonably differ as to their relative weight in a particular case. that is why they are said to involve the exercise by the judge of his 'discretion' ... when leave is granted, an appellate court ought not to substitute its own 'discretion' for that of the judge merely because its members would themselves have regarded the balance as tipped against the way in which he had decided the matter . . ." that may sound like somewhat doubtful aid. but on both occasions when lord diplock, a stickler for accurate usage, spoke of discretion in that passage he put the expression in inverted commas, to indicate, as i infer, that he was not referring to an exercise of discretion properly so called. the role of judicial discretion today is, i suggest, subject to one exception, fairly narrowly confined. for that proposition i summon up the weighty support of sir wilfred greene mr: 21.d. v.nspcc[1978] a.c.171,atp.219c. 22. british steel corporation ltd. v. granada television ltd. [1981] a.c. 1096, at p.1202 c. 23. a.g. v. guardian newspapers (no.2) [1990] a.c. 109, at p.282. 24. w. v. egdell [1990] 2 w.l.r. 471, at p.491 a. 25. e.g., barak,judicial discretion (1989), at p.68. 26. a.g. v. guardian newspapers (no 2)[ 1990] a.c. 109. 27. [1978] a.c. 297, p.317 d. 32 the discretion of the judge "in all discretionary remedies it is well known and settled that in certain circumstances i will not say in all of them, but in a great many of them the court, although nominally it has a discretion, if it is to act according to the ordinary principles upon which judicial discretion is exercised, must exercise that discretion in a particular way, and if a judge at a trial refuses to do so, then the court of appeal will set the matter right."28 that was said 50 years ago, but it is even truer today, as can (i think) be demonstrated by reference to the areas in which discretion is most obviously exercised. i start with the award of costs. a series of statutes entrusts this to the discretion of the court or arbitrator.29 notably, section 51 of the supreme court act 1981 provides that costs shall be in the discretion of the court which "shall have full power to determine by whom and to what extent the costs are to be paid." so special is this discretion that rights of appeal are specifically restricted,30 and its width has been recently emphasised by the house of lords.31 it is nevertheless universally recognised as the primary principle governing courts and arbitrators in the exercise of their discretion that costs should follow the event32 and to depart from that rule without showing sufficient reason is to raise a rebuttable presumption of error. 33it is of course necessary to identify the event, which in a tangle of claims and cross-claims may not be straightforward, but a party's entitlement to receive costs or responsibility to pay them is first to be judged by reference to his success or failure in the litigation.34 this primary principle may not be applied in its full rigour, for example where a party's conduct in the litigation35 justifies a departure or where the successful party recovers less than had earlier been offered or paid into court,36 but a well-established body of authority37 shows that a judge is by no means free to indulge his personal whims or prejudices when awarding costs. the reality is revealed by the traditional exchange between the court and counsel for the unsuccessful party when the victor asks for costs. "you can't resist that, can you, mr x?" to which the answer, much more often than not, is "no" although, at least in the court of appeal, he usually adds "but i have an application to make." a discretion exists, but within a compass which is well understood and has, i think, shrunk over the years. the field sir wilfred greene had in mind in the passage quoted was that of 28. r. v. stafford justices [1940] 2 k.b. 33, at p.43. 29. e.g., arbitration act 1950, s.18; magistrates courts act 1980, s.64; highways act 1980, s.209; county courts act 1984, s.45; agricultural holdings act 1986, sched. ii, para 23. 30. supreme court act 1981, s.18(1)(i). 31. aiden shipping co. ltd. v. interbulk ltd. [1986] a.c. 965, at pp.975, 979 d. 32. the erich scroeder [1984] i lloyd's rep. 192, at p.194. 33. tramountana armadora sa v. atlantic shipping co. sa [1978] i lloyd's rep. 391, at p.394. 34. archital luxfer ltd. v. henry boot construction ltd. [1981] i lloyd's rep. 642, at p.650. 35. ibid., at p.650; video box office ltd. v. gst holdings ltd., [1990] the independent, 27 april. 36. the los i [1987] i lloyd's rep. 321. 37. see supreme court practice (1988) voll, 6212/l0et seq. 33 the denning law journal remedies, and it is elementary that equitable remedies are discretionary and not a matter of right. but over a century has now passed since lord blackburn said:38 "the jurisdiction of the court of equity to enforce the specific performance, or to grant an injunction to prevent the breach of a covenant, is no doubt a discretionary jurisdiction, but i perfectly agree with the view expressed by your lordships that the discretion is not one to be exercised according to the fancy of whoever is to exercise the jurisdiction of equity, but is a discretion to be exercised according to the rules which have been established by a long series of decisions, and which are now settled to be the proper guide to judges in courts of equity." even earlier lord kingsdown had said:39 "the rule i take to be clearly this: if a plaintiff applies for an injunction to restrain a violation of a common law right, if either the existence of the right or the fact of its violation be disputed, he must establish the right at law; but when he has established his right at law, i apprehend that unless there be something special in the case, he is entitled as of course to an injunction to prevent the recurrence of that violation." the circumstances which may deprive a plaintiff of his remedy are well established: there is no likelihood of repetition; damages will be an adequate remedy; the plaintiff has acquiesced in the defendant's conduct; the plaintifps conduct has disentitled him from seeking relief; and so on. whether these impediments exist may involve an exercise of judgment, or findings of fact which an appeal court may be slow to disturb, but will not involve an exercise of discretion. if they do not exist, whether the remedy be injunction or any other equitable remedy, there is virtually no ground for refusing relief. if they do, an exercise of discretion will be called for but usually within a strictly confined area and it will be readily reviewable. the recently developed field of mareva injunctions illustrates the point very clearly: the conditions for granting such an injunction have been clearly laid down;40 where the affidavit evidence shows the conditions to be met, the judge is almost bound to grant relief. many a judge, instinctively reluctant to grant this draconian relief, has in practice found it almost impossible on a reasonably well-prepared application to find grounds for refusing to do so. at this point the well-informed schoolboy would doubtless interject that remedies in public law at least must be truly discretionary, because the judges are 38. doherry v.allman (1878) 3 app. cas. 709, at p.728. 39. imperial gas light & coke co. v. broadbent (1859) 7 h.l.e. 600, at p.612. see also fullwood v. fullwood (1878) ch. d. 176, at p.179. 40. see gee, mareva injunctions & anton piller relief, 2nd ed. (1990), at pp.10-11. 34 the discretion of the judge always saying so. he would be right. they are. and the judges are right too. it is therefore possible, as professor wade says,41"that the court may find some act to be unlawful but nevertheless decline to intervene." but there is a wide gap between the rhetoric and the reality. the constraints of time and the limitations of my own research do not enable me to discuss the subject in detail or pronounce with authority. i have, however, a very strong hunch that in the decade since the crown office list became a boom town there would turn out to be no more than a handful of cases in which excess or abuse of power had been established but a remedy refused. in these few cases, the reason for the refusal of relief would (i suspect) usually turn out to be that the applicant had disentitled himself to relief by his own conduct, that the illegality was of a technical nature,42 that delay in application had made relieffutile or impracticable, or that the public authority was willing to give effect to the decision without the formality of an order against it. the much trumpeted principle that an applicant for judicial review must first exhaust his other remedies43does not seem often in practice to have led to a denial of relief. in the procedural field at least one might expect the judge, as master of proceedings in his court, to exercise an almost unfettered discretion. many statutes and rules of court confer apparently wide discretions, but each is quickly confined between banks of practice and authority. the court may extend the validity of a writ, says the rule;44but only for good reason say the cases,45which also give guidance on what may and may not be a good reason.46 if certain conditions are satisfied, the court may order the plaintiff to give such security for the defendant's costs as it thinks just if having regard to all the circumstances of the case it thinks it just to do so;47but the principles on which the discretion is exercised are in general so well understood that contests save as to amount are relatively unusual. 48the court may stay an action on grounds of forum non conveniens, but authoritative guidance on the exercise of the discretion is now found in the spiliada.49 if certain conditions are satisfied, the court may if it thinks fit make an order for interim payment of such amount as it thinks just;50but experience shows the mortality rate among such orders to be high.51the court may, if of opinion that in the circumstances of the case undue hardship would otherwise be caused, and on such terms if any as the justice of the case may require, 41. wade, administrative law 6th ed. (1988), p.709. 42. e.g., r. v. governors of bacon's school, ex p. ilea [1990] the independent, 29th march. 43. wade, supra n. 41, at p.714. 44. rsc o. 6 r. 8(2). 45. in panicular,kleinwort benson ltd. v.barorak ltd. [1987] a.c. 597. 46. see generally, supreme coun practice 1988, 6th cum. supp., p.9, para. 6/8/3. 47. rsc o. 23 r. 1(1). 48. the advent of the european community has, however, raised new questions: porzelack kg v. porzelack (uk) ltd. [1987] i w.l.r. 420; de bry v. fitzgerald [1990] i all e.r. 560. 49. [1987] a.c. 460. 50. rsc o. 29 r. ii, 12. 51. see, e.g. ,british & commonwealth holdings p.l.c. v. quadrex holdings inc. [1989] q.b. 842. 35 the denning law journal extend the time for commencing arbitration proceedings;52 but the judge called upon to exercise this jurisdiction is well advised to have regard to the guidance given by mr justice brandon in the jocelyne53 which earned the approval of lord justice brandon in the aspen trader.54 perhaps no clearer example of how practice develops can be found than in section 69 of the supreme court act 1981 which requires certain specified causes of action to be tried by a jury and provides that any other action shall be tried without a jury "unless the court in its discretion orders it to be tried with a jury." here, one might think, was a generously framed discretion, capable of being exercised in favour of jury trial for a difficult personal injury case. so, it would seem, the master and the judge thought in ward v. james,55 decided under the section's predecessor. yet, said lord denning mr:56 "it is of the first importance that some guidance should be given else you would find one judge ordering a jury, the next refusing it, and no one would know where he stood. it might make all the difference to the ultimate result of the case. this would give rise to much dissatisfaction. it is an essential attribute of justice in a community that similar decisions should be given in similar cases, and this applies as much to mode of trial as anything else. the only way of achieving this is for the courts to set out the considerations which should guide the judges in the normal exercise of their discretion. and that is what has been done in scores of cases where a discretion has been entrusted to the judges." so guidance was given, and jury trials save in the specified cases have vanished from the civil scene, it would seem likely for ever.57 recent experience prompts me to mention an example, drawn from quite a different field, of an apparently wide discretion legislated almost out of existence by judicial decision and finally overtaken by statute itself. section 30 of the law of property act 1925 permits the trustee in bankruptcy of a bankrupt husband to apply to the court for an order that property owned jointly by husband and wife be sold, and the court may make such order as it thinks fit. this again would have seemed to give the court a very wide discretion to do what seemed right to reflect the respective interests of the creditors on the one hand and the wife and children on the other. but a long line of cases held that the trustee was ordinarily entitled to an order for sale in the absence of "very special circumstances" or "good reas'ons" 52. arbitration act 1950, s. 27. 53. [1977] 2 lloyd's rep. 121. 54. [1981] i lloyd's rep. 273. 55. [1966] i q.b. 273. 56. ibid , at p.293. 57. my own personal impression is confirmed by the experience of master warren qc, the senior master of the queen's bench division, who knows of no such case since ward v.james except hodges v. harland & wolff lrd. [1965] i all e.r. 1086, decided some 3 weeks later. and see, most recently singh v. london underground lrd. [1990] the independenr, 25th april. 36 the discretion of the judge or "a substantial case of hardship" or, finally, "exceptional circumstances". 58and now the opportunity to question whether a test of exceptional circumstances does not unreasonably constrict the language of the act has passed, for it has been woven into the 1986 insolvency act.59 i suppose most of us would today regard the criminal trial as the real sanctuary of judicial discretion. this has a large measure of truth, although even an experienced criminal judge, on reading rosemary pattenden's book the judge, discretion and the criminal trial, would (i think) be surprised at the wealth of his (or her) endowment.6o the reason is not far to seek: during the trial the court's management decisions are to a large extent immune from challenge; and once the trial is over, all but the most obviously wrong exercises of discretion tend to be superseded by the verdict of the jury. pattenden, however, observes61 that over the course of this century the attitude of the courts has changed and the court's reluctance to interfere with an exercise of discretion has waned. a glance at the more recent case law quite apart from the recent decision concerning the irish conspirators to murder mr tom king bears her out. 62thus over the last few months alone the court has interfered with discretionary decisions to allow committal proceedings to continue,63 not to stop a case going to the jury,64 not to discharge a jury,65 to accede to a jury's request to be supplied with scales,66 to interrupt excessively,67 not to direct the jury that previous convictions for dishonesty were relevant only to credibility68 and, on many occasions, to admit admissible but prejudicial evidence. one recalls that twenty years ago the court of appeal (criminal division) declined to interfere when a chairman of quarter sessions had on repeated occasions during a defendant's case observed in a loud voice "oh, god", and then laid his head across his arm and made groaning and sighing noises. counsel had not, the court held, been positively and actively obstructed in the doing of his work and the chairman's conduct, if it might be regarded as discourteous and as showing signs of impatience, disparaged only the defendant's counsel, not his case.69 i do not think this decision was found convincing even at the time, at any rate by advocates with personal experience of the chairman in question, but i am quite confident that the judge's discretion to conduct a criminal trial as he wishes would today be much more rigorously scrutinised. 58. re holliday [1981] ch 405, at pp.419 g, 420 b, e 415 f, 424 c, 425 h;relowrie [1981] 3 all e.r. 353, at p .355 j. 59. s. 356 (5). 60. op. cit., appendix, at p. i83. 61. op. cit., at pp.21, 22. 62. r. v. cullen and others [1990] the independent, 1 may. 63. r. v. sunderland magistrates court, ex p. z. [1989] crim.l.r. 56. 64.r. v.morley [1989] crim.l.r. 566. 65. r. v.jaquith, emode [1989] crim.l.r. 563. 66. r. v. stewart sapplelon [1989] crim.l.r. 653. 67.r. v.renshaw[1989]crim.l.r. 811. 68. r. v. prince [1990] crim.l.r. 49. 69.r. v.hircock, farmer, leggett [1970] 1 q.b. 67. 37 the denning law journal the accelerating tendency towards a narrowing of discretion is nowhere better illustrated than in the field of sentencing. as long ago as 1361 justices of the peace were empowered to punish offenders "according to that which to them shall seem best to do by their discretions and good advisement", 70and in later centuries the sentencing discretion was often described in statutes as such.71 interestingly, in view of the new (and to my mind obnoxious) american practice of prescribing maximum and minimum penalties within a very narrow band, one may note that the slave trade act 1824 imposed as the penalty for dealing in slaves, transportation for a term not exceeding 14 years or hard labour for a term not exceeding 5 years nor less than 3 years at the discretion of the court. the practice of prescribing minimum sentences did not, happily, catch on. it does, however, seem almost incredible, looking back, that there should for so many centuries have been no effective judicial means of challenging the exercise of the sentencing discretion on the ground that a penalty, though lawful, was excessive. the first statutory step towards controlling the discretion of course came with the establishment of the court of criminal appeal in 1907, which could substitute such sentence as it thought should have been passed at the trial (whether more or less severe).72 but the court got off to a slow start: such was the respect felt for the sentencer's discretion that in 1908, when the act was in operation for nine months, only 14 sentences were reduced73 roughly the tally today on an average week-day morning. it might be objected that giving a right of appeal against sentence was merely to substitute the discretion of three judges for that of one, but any appellate court is in particular constrained to build up a body of precedent and seek to achieve a reasonable level of consistency, so that the clear result was progressively to narrow the sentencer's discretion. but i think it is really only in relatively recent times that the judge's discretion in passing sentence has been subjected to the degree of discipline familiar in other fields. to this a number of causes have contributed. one, without doubt, has been the entry into the field of distinguished academic analysts, particularly dr david thomas, but also others. linked with that is the systematic reporting of decisions on sentence. another cause is the work of the criminal division itself. when, twenty years ago, widgery lj spoke of the well-known duty of the criminal division "to lay down principles and guidelines to assist sentencers of all grades in the application of the discretion which the imposition of sentence requires", 74he was speaking no less than the truth. but it is over the last decade that, for the first time, a serious attempt has been made to provide detailed guidance on sentencing in a systematic, rational and explicit way. 70. justices of the peace act 1361. 71. e.g., offences against the person act 1861; foreign enlistment act 1870. 72. the criminal appeal act 1907, s.4(3). 73. holdsworth, history of english law, vol. i, at p.218. 74. r. v. newsome and browne (1970) 54 cr. app. rep. 485, at p.490. 38 the discretion of the judge one thinks of the landmark decisions in such fi~lds as rape,75 the importation of drugs,76 theft in breach of trust, 77serious disorder,78 killing by dangerous driving,79 and others. for years it was customary to challenge sentences as being wrong in principle but it was often far from easy to identify any principle. the introduction of principle into this field will, i think, be seen as the enduring and in many ways personal achievement of the present lord chief justice. this is a development to be whole-heartedly welcomed. without explicit guidelines there can be no informed public debate on sentencing practice, and the appropriate punishment of offenders against society is a proper matter for consideration by society (if for purposes of argument one assumes there to be such a thing). such consideration is no more an encroachment on the judges' independence than the prescription of maximum penalties by statute, which has always of course been accepted. it is absurd to suppose that the judges could properly have a sentencing policy of their own independently of the society of which they form part. another cause contributing to the narrowing of discretion has been vocal public dissatisfaction with a sentencing -regime which has been frequently portrayed, on occasion fairly, as arbitrary, even whimsical, and inadequately controlled. this dissatisfaction has not in the main arisen from sentences seen as unduly severe, which have after all been amenable to review on appeal, and the cases show that the criminal division has been willing (often to the fury of sentencers) to make quite minor adjustments of sentence when it felt that justice required them. the real clamour has concerned sentences seen as unduly lenient and the new power to refer such sentences to the court80 must be understood both as a response to that body of opinion and as a guarantee of the judicial guidelines. the upshot of all these developments is certainly not that the sentencer has lost his discretion. he has not. the guideline cases are only guidelines. the facts of two cases and the personal circumstances of two defendants are never the same. the primary responsibility of passing the appropriate sentence remains with the sentencer, whose decision in the vast majority of cases is never the subject of appeal. but i think it is undoubtedly true that this discretion has become _ much more judicial in the sense that it is exercised in a much more structured framework and is subject to much narrower constraints and is much more readily reviewable than it ever used to be. in a quite different corner of the criminal field, i think we have a golden opportunity to observe the organic development of a somewhat novel discretion in something approaching laboratory conditions. the criminal judge has long enjoyed a discretion to exclude evidence of which the prejudicial effect is thought likely to outweigh the probative value. but the police and criminal evidence act 1984 moved the goalposts: it provided for the issuing of codes governing such 75. r. v. bil/am (1986) cr. app. r.(s) 48. 76. r. v.aramah (1982) 4 cr. app. r.(s)'407;r. v. martinez (1984) 6 cr. app. r.(s) 364. 77.r. v.barrick (1985) 81 cr. app. r. 78. 78. r. v. keys (1986) 8 cr. app. r. (s) 444. 79. r. v.boswell (1984) 6 cr. app. r. (s) 257. 80. criminal justice act 1988, s. 36(1). 39 the denning law journal matters as the questioning of suspects,81 provided that the codes should be taken into account in determining any question in proceedings to which they were relevant,82 gave suspects a right under section 58 (albeit qualified) to take legal advice and (relevant for present purposes) conferred a discretion on the court under section 78(1) to "refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it." how was this discretion to be exercised? as was observed in a recent case, with some degree of under-statement, "when the act came into force the effect which the courts would give to this section was in doubt."83 one view, although not so crudely put, was that the proceedings did not become unfair if evidence was admitted which led to the conviction of a guilty defendant, whether or not a breach of the non-binding codes had occurred. this was not much different from the approach previously taken to breaches of the judges' rules. the other view was that since parliament had intended a defendant to enjoy certain safeguards the proceedings became unfair if he was denied them and was convicted as a result. plainly the risk existed that different judges would adopt highly divergent practices, with the unacceptable consequence that a decision of possibly crucial importance to the criminal defendant would turn on the predilections of the individual decision-maker. one could not, i think, claim that any wholly coherent approach to this very wide discretion has yet been formulated, but if one looks at the cases where section 58 or the codes have been breached and reliance is placed on section 78, in the relatively very short period since the 1st january 1986 when the section came into force, the elements of such an approach may perhaps be discerned. it has been repeatedly stated that a breach of section 58 or the codes does not of itself require evidence of a confession to be excluded,84 but there has nevertheless been a growing and possibly even exaggerated tendency to exclude. in the cases where evidence has been held to be rightly admitted, despite breaches, the reason has been given that the defendant was well aware of his rights and access to a solicitor would not have improved his position85 or more generally that in all the circumstances of the particular case the breaches did not affect the fairness of the proceedings. 86but in most of the cases where breaches have been established evidence has been excluded or it has been held that it should have been. the right to legal advice has been described as fundamental. 87 in a case where there had been wholesale 81. s. 66. 82. s. 67(1 i). 83. r. v. keenan (1989) 90 cr. app. r. i, at p.6. 84.r. v.keenan (1990) 90 cr. app. r. 1, at p.12;r. v. walsh {1989] crim.l.r. 822, at p.823;r. v. matthews {199o] crim.l.r. 190. 85. r. v. alladice (1988) 87 cr. app. r. 380;r. v.dunford {1990] thelndependent, 30th march. 86. r. v. waters {1989] crim.l.r. 62;r. v. mauhews [1990] crim.l.r. 190. 87. r. v. samuel [1988] q.b. 615, at p.630;r. v. beycan [1990] crim.l.r. 185, at p.186. 40 the discretion of the judge breaches it was said that to admit the evidence would be to condone flouting of the provisions designed to protect against confessions which were not genuine. 88 but it is now clear that in the ordinary way evidence will only be excluded if the breaches are significant and substantialb9 and the crucial consideration has usually been whether, because of the breaches, the defendant gave answers he might not have given90 or has otherwise been prejudiced in resisting the charge.91 it may be that the pendulum has swung too far towards exclusion upon breaches being shown, without adequate consideration of the effect on the fairness of the proceedings which the act requires.92 my point, however, is that within about five years of the act coming into force one sees a discretion drawn in very wide terms being defined and regulated so that the lines upon which judges should exercise it are likely quite soon to become clear and well-understood. while prediction is hazardous, the general shape of the rule seems likely to be that the judge should ordinarily exclude prosecution evidence if there have been significant and substantial breaches of section 58 or the codes and the defendant has as a result given damaging answers which he would not otherwise have given or has been substantially prejudiced in resisting the charge. if this were the broad shape of the rule, difficult borderline cases would no doubt arise, but in the great mass of cases it would be obvious to judges and practitioners how the discretion should and would be exercised. one would also expect that as the consequences of failure to comply with these highly detailed provisions were increasingly borne in upon police forces, the incidence of significant and substantial breaches would sharply decline. perhaps the last real stronghold of almost unreviewable discretion is where the care and custody of children are concerned. this is not because demonstrable errors in the judge's balancing exercise in this field will not be corrected: authority shows that they can and should.93 it is because, first and most importantly, the evidence is likely to be entirely oral and the issue is likely to turn on the judge's assessment of the personal qualities and motives of the competing parents and other members of the extended family whose capacity as carers is in question. in the absence of some striking mis-judgment it will be almost impossible to show that his conclusion is wrong. and the judge's discretionary decision enjoys a rare inviolability, secondly, because there is in this field usually no satisfactory solution and it is thus impossible for an appellate court to be confident that its view of the less unsatisfactory solution, if different from that of the judge, is superior.94 the 88. r. v.ismail [1990] crim.l.r. 109, at p.1i0. 89.r. v.absolam [1989] cr. app. r. 232, at p.337;r. v.keenan (1990) 90 cr. app. r. i. at p.13;r. v . . mauhews [1990] crim.l.r. 10, at p.191. 90. r. v. samuel [1988] q.b. 615, at p.630;r. v. absolam (1989) 88 cr. app. r. 332, at p.337;r. v. delaney (1989) 88 cr. app. r. 338;r. v.quayson [1989] crim.l.r. 218;r. v. walsh [1989] crim.l.r. 822;r. v.beycan [1990] crim.l.r. 190. 91.r. v.parris (1989) 89 cr. app. r. 68;r. v.keenan (1990) 90 cr. app. r. i;r. v.fennelley [1989] crim.l.r. 142;r. v.britton [1989] crim.l.r. 144;r. v.ladlow [1989] crim.l.r. 219. 92. r. v. williams [1989] crim.l.r. 66;r. v. fogah [1989] crim.l.r. 141. 93. re f (a minor) (wardship: appeal) [1976] fam. 238; g. v. g. [1985] 2 all e.r. 225. 94. clarke-hunt v. newcombe (1982) 4 f.l.r. 482, at p.488; g. v. g., supra n. 93, at p.228 b. 41 the denning law journal result is, that since the house of lords endorsed this general approach in g v. g,95 challenges by the aggrieved parent to the trial judge's exercise of discretion have almost always failed. it is not perhaps very happy that an unfettered right of appeal should be effectively abrogated by judicial decision, nor that, in a field where judicial decisions have a unique capacity to cause lasting misery, the trial judge's decision should be effectively final. on the other hand, it would be very hard indeed to suggest any guideline to govern the exercise of this discretion which was not either so obvious or so heavily qualified as to be futile. it would seem that in this limited field, for better or worse, reliance must be placed on the trial judge to show the wisdom, sensitivity and insight of solomon, although lacking the latter's extra-judicial powers. may i, in conclusion, touch much too briefly on the important issues raised by professor atiyah and professor treitel in their inaugural lectures respectively twelve and ten years ago?96 atiyah, it will be recalled, drew attention to the movement over the last century from clear, sharp-edged principles beloved of our victorian forbears to judgmental discretionary rules thought to be better fitted for dispensing individualised ad hoc justice case by case. treitel considered this development further with particular reference to the law of contract, showing how certain old rules had been diversified and qualified to cater for hard cases, but suggesting that in the contractual field discretions had not, on the whole, up to then operated so as to create an unacceptable degree of uncertainty. now certain of the instances discussed by the professors are certainly discretions within my suggested meaning: for example, the rules relating to matrimonial property97 or the provision in section 49(2) of the law of property act 1925 enabling the court to order the return of a deposit paid under a contract for the sale ofland. 98but other instances, although posing judgmental tests, do not involve the exercise of any discretion in my sense: for example, the pervading test of reasonableness in the law oftort,99 the closest connection test in determining the proper law of a contract, i the test of merchantability now contained in section 14(6) of the sale of goods act 1979,2 any test based on the intention of the parties,3 the new test of common law duress,4 or departure from the rule that damages for breach of contract are invariably to be assessed by reference to the time of breach. 5 none of these permits the judge to apply a simple rule of thumb test. most require evidence followed by an exercise of judgment, the correctness of which may give rise to differences of 95. supra, n. 93. 96. p.s. atiyah,from principlestopragmarism, 17th feb. 1978;g.h. treitel,docrrine and discrerion in rhe law of con/racr, 7th march 1980. 97. atiyah,op. cir., at p.ll. 98. treitel,op. cir., at p.15. 99. atiyah,op. cir., at p.ll. i. atiyah,op. cir., at p.13. 2. atiyah,op. cir., at p.14. 3. treitel,op. cir., at p.4. 4. treitel, op. cir., at p.5. 5. treitel,op. cir., at p.9. 42 the discretion of the judge opinion. i share to the full the professors' distrust of undirected and unreviewable discretions, but most of the powers they discuss are not, i think, undirected nor, even more importantly, are they unreviewable. we may perhaps take comfort in the fact that even the new zealand illegal contracts act 1970,which may fairly be regarded as the ultimate in conferment of wide, undefined discretions, is now said,6 despite gloomy earlier prognostications,7 to have produced a coherent body of decisions. so i, with treitel, would view the present situation, if not with complacency, at least with a reasonable degree of optimism and confidence.8 it is, i think, a deeply rooted instinct of any responsible body, whether a company, a college, a club, a body of trustees, a trade union or anything else, however wide its powers, to endeavour to act with a reasonable measure of consistency. so the tendency to subject a wide discretion to more or less restrictive rules is not a specifically legal phenomenon. nor, certainly, is it an english phenomenon: a discretion conferred by the new zealand matrimonial property act 1963 was so mechanically applied by the judges as, in the views of some, to subvert the object of the legislation altogether.9 but it is, as shown by that example and others i have discussed, a very marked feature of judicial practice. i do not, therefore, think that whether discretion is understood in my sense or as embracing also the judgmental open-textured rules discussed by the professors there is in general any ground for concern that arbitrary uncontrolled discretion is likely to run riot at the expense of clear discernible principle. nor do i think that any approach less responsive to the circumstances of particular cases would in general be acceptable to the public as consumers of the judicial product in an age when the public is more inclined to see the law as an ass than as the embodiment of everything that's excellent. but this is, i am conscious, a predictable view from one on the bureaucratic side of the counter. after all, the lord chancellor of former days no doubt considered the length of his foot a very convenient, reliable and serviceable measure, happily free of what would now be called resource implications. 6. a beck, "illegality and the court's discretion: the new zealand illegal contracts act in action", (1989) 13n.z.u.l.r. 389. 7. m.p. furmston, "the illegal contracts act 1970an english view", 1972,5 n.z. u.l.r. 151. 8. op. cit., at p.20. 9. see markesinis, "comparative law a subject in search of an audience", (i990) 53m.l.r. i, at pp.12-13. 43 human rights, 'arranged' marriages and nullity law: when do 'force', parental 77 denning law journal 2015 vol 27 pp 77-105 magna carta and access to justice in family proceedings the hon mr justice mostyn introduction we had a surprise in january 2012 when a practising qc was parachuted straight into the supreme court (as the judicial committee of the house of lords became in 2009). but if there were expressions of discontent they were definitely sub rosa since the man in question, jonathan sumption qc, was then, and has since proved himself to be, preeminently qualified for the position. he is one of our foremost medieval historians, a fellow of magdalen college who taught history, before leaving to pursue a career at the bar, where he rose to dizzy heights. his as yet uncompleted history of the hundred years‟ war has received the highest praise. so it perhaps was not surprising that in this octocentenial year he should have been asked by the friends of the british library (an audience i warrant as challenging as this) to speak to them about magna carta on 9 march 2015. if i may say so, his address “magna carta then and now” 1 is a masterpiece. it completes the destruction of the hermeneutical myth originated by sir edward coke which had been commenced by william mckechnie in his landmark essay published in 1905. in his speech lord sumption began by saying: “it is impossible to say anything new about magna carta, unless you say something mad. in fact, even if you say something mad, the likelihood is that it will have been said before, probably quite recently.” lecture delivered to the national access to justice and pro bono conference, sydney 18-19 june 2015. the hon mr justice mostyn, judge of the high court of justice, family division. 1 lord sumption, „magna carta then and now‟ (supreme court, 9 march 2015) <www.supremecourt.uk/docs/speech-150309.pdf> accessed 26 august 2015. magna carta and access to justice in family proceedings 78 i will not presume to say anything new about magna carta. in fact my principal subject matter – the withdrawal of legal aid from private law family cases – has nothing to do with magna carta except in the extended mythic sense with which sir edward coke and others have since clothed it. indeed i am supremely unqualified to talk about it. until comparatively recently my knowledge of it was confined to my childhood reading. at age six i read the nursery history of england 2 which told me that: “the signing of the great charter at last all the people in the country were so angry with john that the chief men-said they would fight against him if he did not promise to do better. the new archbishop, stephen langton, was very anxious to make the king better to his people. at last they wrote down a great many promises, and they made john say he would keep them, and he had to put a mark under the writing to show that it was a solemn promise. king john never meant to keep his promises, and after he had signed the “great charter,” as the writing was called, he threw himself upon the ground and kicked and groaned in anger. he died soon afterwards.” at age 10 i read (and have regularly re-read) that magnificent piece of nonsense 1066 and all that. 3 this is what it told me: “the barons compelled john to sign the magna charter, which said: 1. that no one was to be put to death, save for some reason – (except the common people). 2. that everyone should be free (except the common people). 3. that everything should be of the same weight and measure throughout the realm (except the common people). 2 elizabeth o‟neill, nursery history of england (tc and ec jack ltd 1877). 3 w sellar and r yeatman, 1066 and all that (methuen and co 1930). the denning law journal 79 4. that the courts should be stationary, instead of following a very tiresome medieval official known as the king‟s person all over the country. 5. that “no person should be fined to his utter ruin” (except the king‟s person). 6. that the barons should not be tried except by a special jury of other barons who would understand. magna charter was therefore the chief cause of democracy in england, and thus a good thing for everyone (except the common people). after this king john hadn‟t a leg to stand on and was therefore known as „john lackshanks.‟” as we will see, this was a remarkably perceptive analysis of the charter. the authors had earlier referred to pope innocent iii thus: “john was so bad that the pope decided to put the whole country under an interdict, i.e. he gave orders that no one was to be born or die or marry (except in church porches). but john was still not cured of his badness; so the pope sent a bull to england to excommunicate john himself. in spite of the king‟s efforts to prevent it the bull succeeded in landing and gave orders that john himself was not to be born or marry or die (except in church porches); that no one was to obey him or stand him a drink or tell him the right time or the answer to the irish question or anything nice. so at last john gave way and he and his subjects began once more to be born and to marry and to die, etc. etc.” and we all know that this same bullish pope annulled the charter within 10 weeks of john sealing it. he denounced it as “not only shameful and base but illegal and unjust”. for the purposes of this address i have consulted a number of sources. among many others i have read sir matthew hale‟s history of the common law of england (published posthumously in 1716 – he died in 1676); sir william blackstone‟s commentaries on the laws of england (12th edition, 1795 – he died in 1780); and sir william holdsworth‟s a history of english law (3rd edition 1922) to see what past commentators, other than the hierarch sir edward coke, had to say about the charter. magna carta and access to justice in family proceedings 80 for hale the only true source of law was that made by the judges, the common law. he seemed to regard royal charters or acts of parliament as little better than distractions from the true development of the law at the hands and minds of the judges. and who am i to criticise that? inasmuch as praise was to be bestowed on john‟s royal laws, hale seems more impressed by what he described as laws which allowed “mulcts [to be] imposed for barbarous and disorderly pleading” he observing that at that time “proceedings in his courts were rude, imperfect and defective to what they were in the ensuing time of edward i”. however, he did go this far: “but the great charter, and the charter of the forest, did not expire so; for in 1253, they were again sealed and published: and because after the battle of evesham, the king had wholly subdued the barons, and thereby a jealousie might grow, that he again meant to infringe it; in the parliament at marlbridge they are again confirm‟d. and thus we have the great settlement of the laws and liberties of the kingdom established in this king‟s time (he means henry iii): the charters themselves are not every word the same with those of king john, but they differ very little in substance. this great charter and the charta de foresta was the great basis upon which this settlement of the english laws stood in this king and his son; there were also additional laws of this king yet extant which much polished the common law viz the statutes of merton and marlbridge, and some others.” blackstone acknowledges that the first source of the absolute rights of every englishman is “the great charter of liberties, which was obtained, sword in hand, from king john, and afterwards, with some alterations, confirmed in parliament by king henry iii his son.” however, he goes on to say: “which charter contained very few new grants; but as sir edward coke observes, was for the most part declaratory of the principal grounds of the fundamental laws of england.” as far as blackstone was concerned the real hero in the promulgation and securing of these rights was edward i, who he wrote “hath justly been stiled our english justinian”. he passed a statute in 1297 (25 edw i, c1) entitled “confirmatio cartarum de libertatibus angliæ et forest” which stated that “the great charter is directed to be allowed as the common law; the denning law journal 81 all judgments contrary to it are declared void; copies of it are to be sent to all cathedral churches, and read twice a year to the people….”. it threatened excommunication to those who denounced it. 4 his grandson edward iii went further and in his reign in 1369 parliament (which had arrived as a recognisable body in 1258 – the earliest statute roll begins in 1278 and the earliest parliamentary roll is of the year 1290) passed a statute that rendered void any statute which infringed its provisions (42 edw iii, c1). it stated: “that the great charter and the charter of the forest be holden and kept in all points; and that if there be any statute made to the contrary, it shall be holden for none”. which was perhaps the nearest we ever got to an entrenched constitution. at all events the charter was confirmed and reissued by henry iii in 1225 in a revised form (9 hen iii), and, as we have seen, entered the statute roll in 1297 (25 edw i, c1). 5 and of this sections 1 (confirmation of liberties), 9 (liberties of london, &c), and 29 (imprisonment &c contrary to law. administration of justice) remain in force. (this latter clause, the most famous of all, was divided between the thirty-ninth and fortieth clauses in the version sealed by john). in all it was confirmed some thirty times in the middle ages. you will have noticed my references to the parallel charter of the forest. 6 this mitigated and regulated the laws concerning hunting in the forest. blackstone explained the context: “richard the first, a brave and magnanimous prince, was a sportsman as well as a soldier; and therefore enforced the forest 4 henry iii in 1253 threatened excommunication against all who took even the humblest part in infringing or altering its clauses: clam vel palam facto, verbo, vel consilio. 5 the original of this copy of the charter hangs in parliament house in canberra. the mother of a friend of mine found another 1297 copy in her attic at deene park in northamptonshire in the 1970s. they had no idea how it got there. it appears to have been at deene park from at least the early 1600s. only 17 copies of the charter from the 13th century are known to survive; the brudenells‟ example was the only one in private hands, and one of only five still carrying a royal seal. in 1983 it was sold privately to ross perot. it was sold again in december 2007 for more than us$21 million, and is on display in the national archives in washington, dc, alongside the declaration of independence and the united states constitution: see „marian brudenell‟ (the telegraph, 6 september 2013) <www.telegraph.co.uk/news/obituaries/10292398/marian-brudenell.html> accessed 26 august 2015. 6 this was originally part of the charter sealed in 1215 but was separated out into its own berth in 1217 after the death of john in 1216. magna carta and access to justice in family proceedings 82 laws with some vigour; which occasioned many discontents among his people, though he repealed the penalties of castration, loss of eyes, and cutting off of hands and feet, before inflicted on such as transgressed, in hunting; probably finding that their severity prevented prosecutions.” i have not researched what the new penalties were but i suspect they were more severe than those prescribed in the hunting act 2004 (which banned the hunting of (some but not all) mammals with (more than two) “dogs” (but not by any other means)).7 holdsworth supplies some fascinating historical context. he bases many of his views on mckechnie‟s essay, which is, plainly a, if not the, prime source for students of the charter. he explains how this particular charter of liberties can be traced back, through the charters of liberties granted by henry ii, stephen and henry i on their coronations, to king cnut‟s charter of liberties. cnut‟s charter is the direct linear ancestor of magna carta. so magna carta was not brand new; and was certainly not the bombshell that the later myth-makers have made it out to be. however, it did mark a watershed, at least up to a point. holdsworth‟s view was this: “though, therefore, we can trace its form back to anglo-saxon times, though we can trace the genesis of some of its clauses to that charter of henry i which stephen langton brought to the notice of the barons as a precedent for the demands which they were about to make upon the king, the great charter differs fundamentally from any preceding charter in the manner in which it was secured, in its contents, and in its historical importance. it was secured by a combination of the landowners, the church, and the merchants; and therefore it contained clauses dealing specifically with their particular grievances. since the time when the charter of henry i had been issued, a centralized administrative and judicial system had been created and elaborated. the charter therefore necessarily contained many clauses which related to the working of that system. the granting of the charter, and the success of the barons in maintaining it, opened a new chapter in 7 in order to force through this vitally important piece of legislation the blair government required parliament to spend over 700 hours debating the issue (more than 10 times it spent discussing the iraq war) and had to invoke the parliament acts 1911 and 1949 to override the house of lords for only the fourth time since 1949. the denning law journal 83 english history, which ended by establishing a system of constitutional government, of which the charter was regarded as the pledge and the symbol.” lord bingham, in his essay magna carta 8 goes even further in the direction of the hagiographers. he writes: “conditioned as we are today by our own knowledge of political and constitutional development over the last nine centuries, it calls for the exercise of real historical imagination to appreciate the enormity, the grandeur of what was done at runnymede. king john entered the meadow as a ruler acknowledging no secular superior, whose word was law. he left the meadow as a ruler who had acknowledged, in the most solemn manner imaginable, that there were some things even he could not do, at any rate without breaking his promise. this, then, is the enduring legacy of magna carta: the lesson that no power is absolute; that all power, however elevated, is subject to constraint; that, as was to be said by dr thomas fuller some centuries later, „be you never so high, the law is above you‟.” needless to say, lord sumption douses these views with cold water. he explains pitilessly that it is not true that magna carta was the origin of the principle of the rule of law. the english kings had broken the law quite frequently before magna carta, and they continued to break it afterwards. but the idea that the king was subject to law had for a very long time been part of the orthodoxy of medieval constitutional thought both in england and elsewhere. the barons did not invent it at runnymede. their object was to define what the law was. no one doubted that whatever it was, the king was subject to it. one thing is certain. the charter did not benefit the common people one whit, and sellar and yeatman were quite right when they wrote their amusement in 1930. although coke attempted to argue that the famous clause 39 extended to all people it is clear that this was not so. 9 as holdsworth explains: 8 tom bingham, lives of the law (oup 2011). 9 blackstone also commits the same solecism writing that “it protected every individual of the nation in the free enjoyment of his life, his liberty, and his property, unless declared to be forfeited by the judgment of his peers or the law of the land”. in a footnote he references chapter 29 of the charter which is of course not the same as clause 39 of the version sealed by john (q.v.). magna carta and access to justice in family proceedings 84 “it does not legislate for englishmen generally, but attempts to safeguard the rights of different classes according to their different needs. churchmen, lords, tenants, and merchants are separately provided for. but there are some clauses of the charter, notably the famous section 39, in which rights are conferred upon all „liberi homines.‟ the phrase liberi homines is clearly not confined to tenants in chief; but did it include the villeins, or were they excluded from the benefits conferred? … it is fairly certain that they were not considered to be thus included in 1215. it is true that they seem to be provided for in section 20, which provides that a villein shall be amerced „saving his contenement and his wainage.‟ but it is fairly clear that they were thus protected, not because it was intended to confer any rights upon them, but because they were the property of their lords, and excessive amercements would diminish their value. when the charter was reissued in 1216, this intention was made quite clear by a slight alteration in wording. it was provided that a villein other than the king‟s villein was not to be thus amerced. thus, although the charter was comprehensive in its scope it did not embrace all englishmen.” in her excellent speech in 2011 entitled “equal access to justice in the big society” lady hale put it more pithily: “i doubt whether the medieval barons gave any thought to the poor and vulnerable in their society, still less to the women”. it was not until the statute of edward iii in 1331 (5 edw iii, c9) that clause 39 of the 1215 version (clause 29 of the version of 1225) was extended to all men whatever their status. and it was not until 1354 (28 edw iii, c3) that “due process” 10 was formally extended to all men. whatever magna carta was, it was not a universal declaration of human rights. clause 40 of the 1215 charter famously provides that “we will sell to no man, we will not deny or defer to any man either justice or right”. 11 again, as lord sumption explains, the notion that the proscription on “selling” justice means that the state is obliged to provide free justice is 10 “no man, of what estate or condition that he be, shall be put out of land or tenement, nor taken, nor imprisoned, nor disinherited, nor be put to death, without being brought in answer by due process of law”. so far as i can tell this is the origin of the mystical phrase “due process of law”. the original norman french is “saunz estre mesne en respons par due proces de lei”. 11 now part of clause 29 of the 1225 charter in force. the denning law journal 85 much misunderstood. at the time the king had a personal judicial jurisdiction over his “tenants-in-chief”, essentially the baronage and the richer knights. he had a habit of adjudicating disputes personally rather than delegating them to his justices. and he demanded large sums, known as “proffers”, for access to his court. this is what clause 40 was aimed at. for run-of-the-mill litigants access to the general courts required payment of fees for writs and subpoenas. clause 40 did not affect these fees one jot. in 1495, during the reign of henry vii, parliament passed a statute (11 hen 7, c12) “to admit such persons as are poor to sue in forma pauperis”. 12 this provided that every poor person might issue “writ or writs original and writs of subpoena … nothing paying to your highness for the seals of the same, nor to any person for the writing of the same” and that the justices “shall assign to the same poor person … counsel learned, by their discretions, which shall give their counsels, taking nothing for the same”. 13 it might be thought that here lies the origin of legal aid in england and wales, but again, that would be wrong, for, as tindall cj pointed out in brunt v. wardle: 14 “but, after all, is the 11 hen 7, c12, any thing more than confirmatory of the common law? in the learned report of the serjeants‟ case by my brother manning, p. 41, note (d), a case is referred to that occurred in the 15 ed. 4, twenty years before the passing of that act, from which it appears that at common law if a party would swear that he could not pay for entering his pleadings, the officer was bound to enter them gratis; and that in this court there was a presignator pur les poers.” so, the common law had, at the latest by 1475 in the reign of edward iv, in the midst of the war of the roses, invented a procedure of relief from court fees and costs. of course, this had nothing to do with magna 12 this statute was cited in the supreme court of canada by mclachlin cj in trial lawyers association of british columbia v. british columbia (attorney general) [2014] scc 59 [48] where she referred to the “long tradition in the common law of providing exemptions for classes of people who might be prevented from accessing the courts a tradition that goes back to the statute of henry vii”. 13 a statute had been passed in scotland in 1424 which provided for free legal assistance for “poor creatures” who could not pay costs on account of “default of cunning or means”. 14 (1841) 3 man. & g. 534. magna carta and access to justice in family proceedings 86 carta. it appears that the liability of the loser to pay the costs of the winner did not arise until 1531, during the reign of henry viii, when parliament passed a statute intituled “an act that the defendant shall recover costs against the plaintiff, if the plaintiff be nonsuited, or if the verdict pass against him”. this initially limited the power to make an order for costs to certain specific suits but was extended in the reign of james i (4 jac i, c3) to “any action whatsoever”. in her excellent speech lady hale stated: “a statute of henry viii in 1531 even provided that they should be relieved of having to pay the other side‟s costs if they lost – but they had to suffer some other punishment instead, such as being whipped or pilloried.” in fact the statute did not say that, but rather that they “shall suffer other punishment, as by the discretion of the judge or justices, afore whom such suits shall depend, shall be thought reasonable”, and i can find no evidence that whipping or pillorying was ordered against unsuccessful pauper litigants, however reasonable that might have been then (or even now). holdsworth and lord sumption ruthlessly hunt down and put to death a number of other persistent and obstinate canards. sir edward coke suggested that clauses 39 and 40 embodied the principles of habeas corpus and trial by jury. as holdsworth says “it is not difficult to show that taken literally, these interpretations are false. trial by jury was as yet in its infancy. the writ of habeas corpus was not yet invented; and as we shall see, it was long after it was invented that is was applied to protect the liberty of the subject.” it is noteworthy that as time passed and the middle ages evolved into the renaissance, and with the stability and national independence provided by the tudor regime following the defeat of (the recently reburied) richard iii at bosworth in 1485, magna carta receded from public and legal consciousness, almost into oblivion. by the time of reign of elizabeth i, gloriana, it had almost disappeared from view, so much so that when shakespeare, her chief propagandist, wrote king john in 1596, five years before her death, he did not mention it, or the events surrounding it, at all. 15 on the contrary the whole play concerns the dispute about the right to the crown between king john and france‟s philip ii (and later his son louis viii “the lion”) who supported john‟s nephew arthur. the nearest one gets to baronial disaffection is where they 15 inevitably, this is being performed today at the globe theatre in london. the denning law journal 87 support louis (for a while) when he mounts a (now almost totally forgotten) invasion. they later revert to their true loyalties; louis is seen off; john is poisoned by a treacherous monk; and on his death-bed his nobles gather around him. dr goebbels would have been proud of this falsification of history. the principal themes of the play were the familiar fare dished out to the groundlings at that time: that the french are bad, and catholic monks are worse; and english kings, even if enduring a “troublesome reign”, are top dogs and the real thing (provided they were not plantagenets like richard iii). lord sumption explains that coke‟s elevation of magna carta into a sacred, numinous, text only arose after his dismissal by james i in 1616 as chief justice of the king‟s bench as a result of his protests against the king‟s interference with the workings of the courts. 16 in his retirement he transformed it “from a somewhat technical catalogue of feudal regulations, into the foundation document of the english constitution, a status which it has enjoyed ever since among the large community of commentators who have never actually read it.” 17 for this the americans bear a heavy responsibility. they adored magna carta and relied on it in spades to justify their rebellion against the government of george iii. its very language is incorporated into the constitutions of about 30 of the individual states. but when he held office even coke did not reach for magna carta when making his momentous decisions. one of the most famous is the proclamations’ case. 18 coke, then chief justice of the common pleas was asked by the lord chancellor and the lord treasurer whether king james i could by mere proclamation prohibit new buildings in london (an early town and country planning measure?) or the making of starch from wheat (food standards?). after consulting the chief justice of the king‟s bench and the chief baron of the exchequer coke held: 16 following his dismissal in 1616 coke re-entered politics and was returned as mp for liskeard in 1620. on 11 december 1621 parliament issued a remonstrance to the king authored by coke, in which they restated their liberties and right to discuss matters of state. james retaliated by dissolving parliament and imprisoning coke in the tower for 9 months. he died in 1634. 17 it is worth reflecting on the various things that magna carta regulated. for example, widows were not to be forced to remarry, although if they did they needed to ask the king‟s or their lord‟s consent. all fishweirs were to be removed from the thames and elsewhere. no-one was to be forced to build bridges across rivers. alien knights and crossbowmen were to be sent home. all forests which had been afforested in john‟s reign were to be deforested. see i judge and a arlidge, magna carta uncovered (hart publishing 2014). 18 (1611) 12 co rep 74; 2 state tr 723. magna carta and access to justice in family proceedings 88 “the king by his proclamation cannot create any offence which was not an offence before, for then he may alter the law of the land by his proclamation in a high point; for if he may create an offence where none is, upon that ensues fine and imprisonment: also the law of england is divided into three parts, common law, statute law, and custom; but the king‟s proclamation is none of them: also malum aut est malum in se, aut prohibitum, that which is against common law is malum in se, malum prohibitum is such an offence as is prohibited by act of parliament, and not by proclamation. also it was resolved, that the king hath no prerogative, but that which the law of the land allows him.” no mention of magna carta there. in citing this case in the appeal in council of civil service unions and others v minister for the civil service 19 (the gchq case) lord fraser stated that “the royal prerogative has always been regarded as part of the common law ... and subject to the common law”. no mention there of magna carta either. in the earlier case of prohibitions del roy 20 james i (supported by the archbishop of canterbury) had claimed to possess the power to determine issues of law in ecclesiastical causes: “the king himself may decide it in his royal person; and that the judges are but the delegates of the king, and that the king may take what causes he shall please to determine, from the determination of the judges, and may determine them himself.” the archbishop said “that this was clear in divinity, that such authority belongs to the king by the word of god in the scripture.” coke was having none of it. he held that “the king in his own person cannot adjudge any case, either criminal or betwixt party and party; but it ought to be determined and adjudged in some court of justice, according to the law and custom of england. the king may sit in the king‟s bench, but the court gives the judgment. no king after the conquest assumed to himself to give any judgment in any cause whatsoever which concerned the administration of justice, within the realm; but these causes were solely determined in the courts of justice. the king cannot arrest any man.” and he ended his judgment by citing henry de bracton: rex non debet esse sub homine, sed sub deo et lege. again, no mention of magna carta there. 19 [1985] ac 374. 20 (1607) 12 co rep 63. the denning law journal 89 so, we see what magna carta does not furnish. it does not newly restrain the power of the monarch. it does not establish separation of powers. it does not create a representative parliament. it does not invent trial by jury. it does not create habeas corpus. it does not provide a forerunner for legal aid (which was not in fact invented in the uk in its current form until 1949). in a withering passage lord sumption derides david cameron who “armed with a copy of an edwardian illustrated textbook for children, has called it the document that paved the way for democracy, equality and the rule of law, the „foundation of all our laws and liberties‟”. this sort of claim is, he says, “high-minded tosh...the worst kind of ahistorical whiggism”. lord sumption ends his paper by asking and answering these two questions which reflect his status as a historian of rigour: “so when we commemorate magna carta, perhaps the first question that we should ask ourselves is this: do we really need the force of myth to sustain our belief in democracy? do we need to derive our belief in democracy and the rule of law from a group of muscular conservative millionaires from the north of england, who thought in french, knew no latin or english, and died more than three quarters of a millennium ago? i rather hope not.” but plainly magna carta does represent something. lord sumption‟s view is this: “yet magna carta matters, if not for the reasons commonly put forward. some documents are less important for what they say than for what people wrongly think that they say. some legislation has a symbolic significance quite distinct from any principle which it actually enacts. thus it is with magna carta. it has become part of the rhetoric of a libertarian tradition based on the rule of law that represents a precocious and distinctively english contribution to western political theory. the point is that we have to stop thinking about it just as a medieval document. it is really a chapter in the constitutional history of seventeenth century england and eighteenth century america.” and, indeed, australia also. holdsworth also sees it as a milestone on the road to freedom. he says that “the historian may prove that there is no strict agnatic relationship [between trial by jury or the writ of habeas corpus and magna carta]; he must admit that there is a natural – a cognatic – link”. blackstone too sees magna carta and access to justice in family proceedings 90 it as important but not necessarily as the second coming. for him there is a steady progression in the promulgation of just laws, the administration of justice, and the relationship between the rulers and the ruled. he charts a progress from henry i and the creation of the grand assize and itinerant justices of eyre travelling out on circuit to hear cases; to magna carta; to the summoning of knights, citizens and burgesses to parliament in the reign of henry iii; to the massive programme of law reform instituted by edward i (including reform of the laws of king alfred for preserving the public peace and preventing robberies). for him “the very scheme and model of the administration of common justice between party and party, was entirely settled by this king; and has continued nearly the same, in all succeeding ages, to this day; abating some few alterations, which the humour or necessity of subsequent times has occasioned” and “more was done in the first thirteen years of his reign to settle and establish the distributive justice of the kingdom, than in all the ages since that time put together”. he then marks a “long interval” until the petition of right, assented to by charles i; the habeas corpus act, passed under charles ii in 1679 (31 cha 2, c2) (new style dating, 21 as will be all dates hereafter); and the declaration of rights presented to the prince and princess of orange in february 1689 and enacted in december of that year as the bill of rights following the glorious revolution (1 gul & mar sess 2 c2). ironically, the myth took firm hold in the minds of the common people, from whom the benefits of the charter were withheld by design for over 100 years. in the famous meditation on the rule of law at the end of “whigs and hunters” 22 (his well known book about the black act of 1723 (9 geo 1, c22)) the polemical historian, socialist and peacenik e.p. thompson wrote: “turn where you will, the rhetoric of eighteenth century england is saturated with law. royal absolutism was placed behind a high hedge of law … and the rulers were, in serious senses, whether willingly or unwillingly, the prisoners of their own rhetoric; they 21 the calendar (new style) act 1750 (otherwise chesterfield‟s act) not only adopted the gregorian calendar (and thus abolished the dates 3 – 13 september 1752) but also fixed the start day of the year as 1 january rather than lady day (25 march). thus the habeas corpus act 1679, which was passed between 6 and 25 march, is dated 1678 in the statutes at large. the 1750 act also means that the correct date for the octocentenary, in terms of exact circumsolar orbits, is 26 june 2015 not 15 june 2015. 22 edward thompson, whigs and hunters (allen lane 1975) 263-264; (breviary stuff publications 2013) 206, 208. the denning law journal 91 played the games of power according to rules that suited them, but they could not break those rules or the whole game would be thrown away. and, finally, so far from the ruled shrugging off this rhetoric as a hypocrisy, some part of it at least was taken over as part of the rhetoric of the plebeian crowd, of the free-born englishman with his inviolable privacy, his habeas corpus, his equality before the law. if this rhetoric was a mask, it was a mask which john wilkes was to borrow, at the head of ten thousand masked supporters. … if the rhetoric was a mask, it was a mask which ghandi and nehru were to borrow, at the head of a million masked supporters.” 23 magna carta was referenced by the felon, agitator and minor poet john grant who was sentenced to death, but at the last moment reprieved and transported for life to the penal colony of new south wales in 1804, for shooting at a family solicitor who frustrated his attempts to woo the daughter of an aristocrat. 24 in a (not very good) piece of verse he wrote: “ye captains to a monarch lov‟d rever‟d draw on his head and yours disgrace down! the „magna charta‟ our forefather‟s rear‟d that brightest jewel in the british crown ye trample on *! – tho‟ britons rule the waves great george‟s subjects (britons!) here are slaves. o country beauteous! climate healthful! mild! o george belov‟d (unlike some kings) abus‟d! o people into slavery beguil‟d! o rulers guilty of a power misus‟d when shall all cry „britannia rules the waves and freeborn britons are no longer slaves‟?” 25 and so, recognising that magna carta is important, but not nearly as important as some commentators make out, but equally recognising it as 23 but he did not mention magna carta in the book. 24 he was later pardoned by macquarie and returned to england in 1811. 25 david neal, the rule of law in a penal colony: law and politics in early new south wales (cup 1990) 61. magna carta and access to justice in family proceedings 92 the mythical fons et origo of the rhetoric of a libertarian evolution based on the rule of law i turn, at last, to the subject matter of this address. 26 in ashby v white 27 ashby, a burgess of aylesbury, was entitled under the borough charter to vote at parliamentary elections. white, a returning officer, maliciously refused to allow him to vote. ashby thereupon sued white. lord chief justice holt (dissenting, but later vindicated by the house of lords) said: “if the plaintiff has a right he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy for want of a right and want of remedy are reciprocal. … my brother powell indeed thinks that an action upon the case is not maintainable, because there is no hurt or damage to the plaintiff: but surely every injury imports a damage though it does not cost the party one farthing, and it is impossible to prove the contrary; for a damage is not merely pecuniary, but an injury imports a damage, when a man is thereby hindred of his right. as in an action for slanderous words, though a man does not lose a penny by reason of the speaking them, yet he shall have an action. so if a man gives another a cuff on the ear, though it cost him nothing, no not so much as a little diachylon, 28 yet he shall have his action, for it is a personal injury ... but in the principal case my brother says, we cannot judge of this matter, because it is a parliamentary thing. o! by all means be very tender of that. besides it is intricate, and there may be contrariety of opinions.” 29 26 holdsworth says that “we may compare it to the twelve tables [of the roman republic]. in the same sense as they were regarded as the „fons et origo juris civilis’ magna carta is the fount and source of our constitutional law”. 27 (1702) 2 ld raymond 938. 28 an 18th c homeopathic medicine made of the juices of several plants (thus its name). 29 this case roused intense feeling in the commons, who imagined that the courts were infringing their privileges. they caused ashby and his counsel to be imprisoned, and when these sued out a writ of habeas corpus, they sent the sergeant-at-arms to arrest lechmere (afterwards attorney-general), who had acted in the habeas corpus proceedings. the officer reported that lechmere had evaded him: “he got out of his chamber in the temple, two pairs of stairs high, at the back window, by the help of his sheets and a rope”. queen anne was forced to end the dispute by proroguing parliament. the denning law journal 93 a remedy can only mean a remedy granted by a court, and that entails meaningful access to the court. that right to access to justice has long been recognised by the common law (even if for centuries the costs of doing so have been prohibitive, and the delays intolerable 30 ). in r (witham) v lord chancellor laws lj stated: 31 “…the common law provides no lesser protection of the right of access to the queen‟s courts than might be vindicated in strasbourg. … indeed, the right to a fair trial, which of necessity imports the right of access to the court, is as near to an absolute right as any which i can envisage.” his reference to strasbourg was, of course to article 6 of the european convention on human rights (1950) which provides: “in the determination of his civil rights and liabilities or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an impartial tribunal established by law.” we have seen some early measures designed to alleviate the lot of indigent litigants seeking to exercise the right of access to the courts. there were further efforts by philanthropic organisations to provide “poor man‟s lawyers” during the 19th century but large areas of unmet need were left. it was not until the period of the second world war (when beveridge was beginning his work on the formation of the welfare state) that refugee scholars from europe, with experience of continental systems where better provision was made, began to make a compelling case for a comprehensive system of legal aid. in his outstanding book the rule of law, 32 lord bingham cited dr ej cohn‟s paper legal aid for the poor: a study of comparative law and legal reform 33 where he (cohn) stated: “legal aid is a service which the modern state owes to its citizens as a matter of principle. . . . just as the modern state tries to protect the poorer classes against the common dangers of life, such 30 as to which see dickens‟s accurate descriptions in bleak house. when delivering his famous “to be or not to be” soliloquy hamlet cited “the law‟s delay” as one of many good reasons for killing himself. 31 [1998] qb 575, 585-586 (laws lj). 32 tom bingham, the rule of law (allen lane 2010) 87. 33 (1943) 59 lqr 250, 253. magna carta and access to justice in family proceedings 94 as unemployment, disease, old age, social oppression, etc, so it should protect them when legal difficulties arise. indeed the case for such protection is stronger than the case for any other form of protection. the state is not responsible for the outbreak of epidemics, for old age or economic crises. but the state is responsible for the law.” these and many other arguments were considered by lord rushcliffe‟s committee which reported in 1945, and led to the introduction of near universal civil legal aid by the legal aid and advice act 1949. it did not apply to defamation proceedings or to some peculiar archaic family proceedings, now long abolished (breach of promise; loss of services of a woman as a result of seduction; inducement of a spouse to leave another). but routine private family law proceedings, whether concerning divorce, money or children were within scope. from the start this entitlement was subject to means testing. section 2 provided that it should be available to any person whose disposable income did not exceed £400 per annum (a very large sum then), but that it may be refused if the person had disposable capital of more than £500. legal aid has been described as the fourth pillar of the welfare state, the others being health, education and social security. initially over 80% of the population satisfied the means test for civil legal aid; this fell progressively so that by 2007 only 27% did. the right to legal aid in private law family proceedings was preserved in the legal aid act 1988 and in the access to justice act 1999. in 2005 the state funded about 45,000 such cases at a cost of about £130m. i have mentioned above art 6(1) of the european convention on human rights. there have been decisions from the strasbourg court which have interpreted that provision to say that in some complex, exceptional, cases this requires the grant of legal aid, even if no scheme exists for the matter in hand: see, for example, airey v ireland 34 (no legal aid was available for judicial separation proceedings in the republic of ireland) and steel and morris v united kingdom 35 (the “mclibel” case, where no legal aid was available in the uk for defamation proceedings). in the latter case the strasbourg court found at para 72 that the denial of legal aid to the applicants deprived them of the opportunity to present their case effectively before the court and contributed to an unacceptable inequality of arms. the human right to legal aid has been taken further by the charter of fundamental rights of the european union (30 march 34 (1979-80) 2 ehrr 305. 35 (2005) 41 ehrr 22. the denning law journal 95 2010), which certainly applies in the uk where eu law is in play, and may well apply more generally. 36 art 47 provides: “right to an effective remedy and to a fair trial everyone whose rights and freedoms guaranteed by the law of the union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this article. everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. everyone shall have the possibility of being advised, defended and represented. legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.” unfortunately, the cost of the legal aid scheme was its undoing. by 1997 it was the fastest rising item of government expenditure. it was inevitable that following the crash of 2008 and with the election of the new austerity-driven coalition government in 2010 that serious curbs on the scheme would be imposed. what no-one anticipated was the savagery of the cuts, with private family law proceedings, save in certain very limited circumstances, being taken out of scope altogether. in november 2010 the new coalition government published its consultation paper proposals for the reform of legal aid in england and wales. in its foreword the then lord chancellor wrote of “achieving substantial savings” to reduce the fiscal deficit and to return the country‟s economy to stability and growth. in its body the government wrote about making “tough decisions about where best to target resources”. it stated at para 4.67 its belief that “legal aid is not routinely justified for ancillary relief proceedings and private law family and children proceeding”. in para 4.207 it stated: “while we understand that those going through relationship breakdown may be dealing with a difficult situation, both emotionally and often practically too, we do not consider that this 36 the scope of the applicability of the charter is legally complex and is beyond the remit of this paper. magna carta and access to justice in family proceedings 96 means that the parents bringing these cases are always likely to be particularly vulnerable (compared with detained mental health patients, or elderly care home residents, for example), or that their emotional involvement in the case will necessarily mean that they are unable to present it themselves. there is no reason to believe that such cases will be routinely legally complex.” the government‟s own equality impact statement accepted that the proposals would have a disproportionate impact upon women, ethnic minorities and people with disabilities. they said that it was justifiable because they are disproportionate users of the service in these areas. this led the legal action group to suggest that “this would lead to an underclass of people disenfranchised from civil justice and indifferent to the rule of law”. notwithstanding these objections the government‟s proposals were enacted with very few changes in the legal aid, sentencing and punishment of offenders act 2012 (laspo), which came into force on 1 april 2013. it removed legal aid from private law children proceedings save in those exceptional cases where domestic violence is a central feature. in such a case the alleged victim, but not the alleged perpetrator, might receive legal aid. otherwise, at a stroke, 63 years of state funding of private family law cases was swept away. since then the courts have been flooded with litigants in person. lists of 12 cases which used to be completed in a day are now a far gone memory. in my own decision of mg & jg v jf 37 i set out, with as much selfrestraint as i could muster, the catalogue of cases that had arisen where the judges had commented on the gross injustice being meted out as a result of these reforms. i stated (and i do not apologise for a rather extensive quotation): “15. since the reforms have taken effect there have been an appreciable number of cases which have demonstrated that the blithe assumption in the consultation paper (that the parties‟ emotional involvement in the case will not necessarily mean that they are unable to present it themselves, and that there is no reason to believe that such cases will be routinely legally complex) is unfounded. this was entirely predictable. the cases are kinderis v kineriene [2013] ewhc 4139 (fam) (18 december 2013, holman j); re b (a child) (private law fact finding unrepresented father) [2014] ewhc 700 (fam) (27 january 2014, judge wildblood qc); q v q [2014] ewfc 7 (21 may 2014, the 37 [2015] ewhc 564 (fam). the denning law journal 97 president); q v q (no. 2), re b, re c [2014] ewfc 31 (6 august 2014, the president); re h [2014] ewfc b127 (14 august 2014, judge hallam); re d (a child) [2014] ewfc 39 (31 october 2014, the president); cd v ed [2014] ewfc b153 (14 november 2014, judge hudson); re d (a child) (no. 2) [2015] ewfc 2 (7 january 2015, the president); and re k & h (children: unrepresented father: cross-examination of child) [2015] ewfc 1 (5 january 2015, judge bellamy). this is a formidable catalogue. each case focussed on the gross unfairness meted out to a parent in private law proceedings by the denial of legal aid. i do not think it would be right to say that these were examples of the operation of the law of unintended consequences since, as i say, the problems were so entirely predictable.” i went on to say: 18. i need only cite a few of the judicial observations. in kinderis v kineriene holman j described the position in which the unrepresented mother in hague proceedings found herself as follows: “the present procedure operates in a way which is unjust, contrary to the welfare of particularly vulnerable children at a time of great upheaval in their lives, incompatible with the obligations of this state under article 11(3) of the [b2r] regulation, and ultimately counter-productive in that it merely wastes taxpayers‟ funds” in re h judge hallam was dealing with an unrepresented mother with speech, hearing and learning difficulties. an official of the legal aid agency stated that there would be no breach of convention rights were she to remain unfunded. judge hallam stated “i find that statement astounding”. in re d the unrepresented father, who lacked capacity, had made an application to revoke a care order; the local authority had applied for a placement (for adoption) order. after heavy pressure from the president some legal aid was eventually awarded. at para 31(vi) of his first judgment the president stated: “thus far the state has simply washed its hands of the problem, leaving the solution to the problem which the state itself has created – for the state has brought the proceedings but declined all responsibility for ensuring that the parents are able to participate magna carta and access to justice in family proceedings 98 effectively in the proceedings it has brought – to the goodwill, the charity, of the legal profession. this is, it might be thought, both unprincipled and unconscionable. why should the state leave it to private individuals to ensure that the state is not in breach of the state‟s – the united kingdom‟s – obligations under the convention?” at para 21 of his second judgment he stated that “the parents can be forgiven for thinking that they are trapped in a system which is neither compassionate nor even humane”. 19. in lindner v rawlins [2015] ewca civ 61 at para 34 aikens lj stated: “yet again, the court was without any legal assistance and had to spend time researching the law for itself then attempting to apply it to the relevant facts in order to arrive at the correct legal answer. to do the latter exercise meant that the court itself had to trawl through a large amount of documents in the file. all this involves an expensive use of judicial time, which is in short supply as it is. money may have been saved from the legal aid funds, but an equal amount of expense, if not more, has been incurred in terms of the costs of judges‟ and court time. the result is that there is, in fact, no economy at all. worse, this way of dealing with cases runs the risk that a correct result will not be reached because the court does not have the legal assistance of counsel that it should have and the court has no other legal assistance available to it.” 20. these are powerful criticisms. the president suggested that if the legal aid agency would not award legal aid to an unrepresented parent facing serious allegations then the court might have to do so from its own budget. in re k & h that was the course proposed. the lord chancellor instructed leading counsel who bravely argued that the president‟s analysis of the existence of this power was „plainly wrong‟. judge bellamy disagreed and awarded representation from the court budget. the lord chancellor is appealing that decision. it can safely be assumed that the criticisms i have recounted have fallen on deaf ears. based on the decisions i have cited, including no fewer than four from the president himself, it can be said that in the field of private children law the principle of individual justice has had to be sacrificed on the altar of the public debt. and based on the observation of aikens lj, it can reasonably be predicted that the phenomenon of the massive increase in self-representation will give rise to the the denning law journal 99 serious risk of the court reaching incorrect, and therefore unjust, decisions.” i think that my views can be clearly gathered from what i have said in that judgment. the most acute problems arise in the situation illustrated by the cases of q v q (no. 2); re b; re c, 38 and re k & h. 39 in each case the unrepresented father, who was seeking contact to his child(ren), was accused in private law proceedings of terrible sexual misconduct. for example, in re b and re c he was accused of raping the mother and in re k & h he was accused of sexually molesting his 17 year old stepdaughter. obviously findings in relation to these allegations would be central to any determination of the contact issue. in the absence of legal aid the court faced the prospect of the unrepresented father crossexamining the complainant directly. that would be unthinkable in a criminal case (although not in the usa where the old right to confront your accusers is embedded in the sixth amendment to the constitution), and could not happen in a public law (i.e. child protection) case where non merits based, non means tested legal aid is still afforded. the president held, obiter, that in such a circumstance the court itself could award legal representation to the accused father from its own budget and such an order was actually made in re k & h, although it has very recently been overturned on appeal (22 may 2015). lord dyson mr held: 40 “i do not consider that it is possible to interpret either section 1 of the courts act 2003 or section 31g(6) of matrimonial and family proceedings act 1984 as giving the court the power to require the lord chancellor to provide funding for legal representation in circumstances where such funding is not available under a scheme as detailed and comprehensive as that which has been set up under laspo. the court must respect the boundaries drawn by parliament for public funding of legal representation. in my view, the interpretation adopted by the judge is impermissible: it amounts to judicial legislation.” the master of the rolls held that it was perfectly acceptable for a judge to act as crossexaminer where a party is unrepresented (see paras 58 – 60). however, he accepted at para 62 that a case might arise where there were complex facts or issues of expert evidence (unlike the case in hand 38 [2014] ewfc 31. 39 [2015] ewfc 1. 40 [2015] ewca civ 543 [31] (lord dyson). magna carta and access to justice in family proceedings 100 which he described as “fairly straightforward”) where a breach of articles 6 and/or 8 of the echr might arise were representation not to be made available; and he suggested that legislation be passed to remedy the problem. he left tantalisingly open the position were legislation not to be passed and such complexities to arise in a future case (as they surely will). parliamentarians have also been strongly critical of the legal aid cuts. the report of the house of commons justice select committee dated 12 march 2015 41 on the impact of changes to civil legal aid under laspo regretted the government‟s failure to carry out adequate research into the legal aid system before introducing the reforms. it recorded that the ministry of justice “is on track to exceed spending reduction forecasts by £32 million because, following the reforms, the legal aid agency is funding fewer matters than it had anticipated”. it found that the exceptional cases funding scheme has not done the job parliament intended namely “protecting access to justice for the most vulnerable people in our society”. it heard ample evidence that legal aid is not reaching many of those eligible for it. it found that the rise in litigants in person constitutes at least some people who struggle to present their cases effectively, whether due to inarticulacy, poor education, lack of confidence, learning difficulties or other barriers to successful engagement with the court process. the evidence showed that the legal aid changes focused disproportionately on the crisis point of some cases and failed to appreciate the costs saving inherent in resolving disputes before they arrive at court. its fundamental conclusion was that the faulty implementation of the legal aid changes contained in laspo has harmed access to justice for some litigants. similarly critical was the report of the parliamentary human rights joint committee dated 24 march 2015 42 on the uk‟s compliance with the un convention on the rights of the child. it recorded a national audit office report on the impact of laspo on civil legal aid changes which found a 22% rise in the number of private family law cases involving children where neither party was represented and a corresponding fall in 41 house of commons justice committee, „impact of changes to civil legal aid under part 1 of the legal aid, sentencing and punishment of offenders act 2012‟ hc (2014-15) <http://www.publications.parliament.uk/pa/cm201415/cmselect/cmjust/311/311 02.htm> accessed 26 august 2015. 42 joint committee on human rights, „the uk‟s compliance with the un convention on the rights of the child‟ hl (2014-15); hc (2014-15) <http://www.publications.parliament.uk/pa/jt201415/jtselect/jtrights/144/144.pdf > accessed 26 august 2015. the denning law journal 101 those where both were represented. it stated that “on the basis that cases involving litigants in person take an average of 50% longer, it estimates an additional £3 million cost in family court cases had resulted from laspo”. it concluded: “the government‟s reforms to legal aid have been a significant black mark on its human rights record during the second half of this parliament” (upper case in original). senior retired judges have also joined the chorus of criticism. in a speech to legal aid lawyers on 22 april 2015, delivered shortly before the general election on 7 may 2015, sir alan moses, the former court of appeal judge, stated: “no one seems to care about the plight of those who have neither the ability to protect themselves in a legal sense and cannot afford a lawyer (sic). that [people] are deprived of the chance of legal aid seems to figure at the very bottom of concern in this election. no one thinks they are ever going to be faced with circumstances that require someone to hold their hand and safeguard them in the frightening and alienating circumstances of a court of law. who cares about the prisoner whose rights are abused and needs legal advice and assistance? who cares about the immigrant who asserts they are a genuine refugee? those who cannot afford access to the courts are often the unpopular minorities and there are no votes in helping them.” 43 the retired appeal judge sir anthony hooper went even further at the meeting, stating (probably unscripted and ex tempore): 43 owen bowcott, „senior judge: politicians are ignoring harm caused by cuts to legal system‟ (the guardian, 23 april 2015) <www.theguardian.com/law/2015/apr/23/sir-alan-moses-politicians-ignoringeffects-legal-aid-cuts-election> accessed 26 august 2015. the report says that sir alan said he was sorry that serving judges felt inhibited and had not spoken out about the effect of cuts to the legal system. he said: “it‟s a great disappointment that they have been brought up in a tradition of protecting their independence and not commenting on these things. they always say they can do something by speaking in the background but we never know what‟s been said. i‟m confident that the judges are very concerned about cuts to legal aid – and that it‟s very inefficient.” magna carta and access to justice in family proceedings 102 “i‟m completely depressed. i started out in the legal profession 30odd years ago when we had as rolls-royce a system as you possibly could have. this has been destroyed gradually and then quickly over the past few years. whatever we have said it‟s not made any difference at all. if the conservatives come back into power, it‟s revolution time. we have to stop helping them and stop working. the bar council are not going to do anything. the law society is not going to do anything. the judges are not going to do anything. unless you [lawyers] are prepared to withdraw your labour you have no hope. if the tories get back in, they haven‟t even started on us.” sir alan and sir anthony, along with a further 136 prominent peers, lawyers and doctors working in the civil and criminal justice systems signed an open letter to the guardian on 1 may 2015 calling on the incoming government to restore legal aid to prevent “widespread miscarriages of justice”. 44 in it they pointed out that in 2010, annual expenditure for the civil and criminal justice system stood at approximately £2bn per annum, which equates to the cost of running the nhs for a fortnight. spending was falling and was not spiralling out of control. now the level of spending is down to approximately £1.5bn per annum. the effect of the cuts is reflected in “eye-watering statistics”. from 2012-13 to 2013-14, funded debt cases fell from 81,792 to 2,423; in clinical negligence from 2,859 to 114; in employment law from 16,154 to six. funding in family law cases dropped by 60%, causing a predicted rise in unrepresented defendants, a trend now also starting to be seen in the criminal courts. they went on to say: “what the figures do not convey is the sheer human misery of being unable to get legal advice. … with cuts and debilitating 44 other signatories included retired appeal court judge sir stephen sedley, visiting professor at oxford university; lord ramsbotham, the army general who became hm chief inspector of prisons; lord carlile qc, the former liberal democrat mp and one-time independent reviewer of terrorist legislation; baroness ruth lister, professor of social policy at loughborough university; frances crook, chief executive of the howard league for penal reform; shami chakrabarti, director of liberty; baroness helena kennedy qc; sir geoffrey bindman qc; and michael mansfield qc. see „legal aid cuts threaten our very democracy‟ (the guardian, 1 may 2015) <www.theguardian.com/law/2015/may/01/legal-aid-cuts-threaten-verydemocracy> accessed 26 august 2015. the denning law journal 103 restructuring comes the spectre of advice deserts, widespread miscarriages of justice, hundreds of thousands denied redress and the draining of the talent pool of future lawyers and judges as young people increasingly choose a career away from civil and criminal law. … politicians speak about access to justice as an optional extra that we simply cannot afford. but the introduction of legal aid, replacing the ad hoc „poor law‟ scheme of the 1920s and 1930s, came during a period of true austerity in the wake of the second world war. access to justice is more than just a public good which we can choose to fund generously when we are told our economic fortunes allow. without access to justice for all, inequalities take on a more dangerous edge which threatens the legitimacy of not just the justice system but our democracy.” they called on the new government to restore legal help to the many currently without redress and to establish a royal commission to investigate the current crisis regarding the diminution of access to justice. even allowing for the need to make cuts in order to reduce the fiscal deficit i do not accept that in the critically important area of private family law it has been necessary to sacrifice individual justice on the altar of the public debt, at least not to the extent that has happened. it is not clear to me why this particular pillar of the welfare state has had to fall. i have yet to hear a convincing riposte to dr cohn‟s argument cited above, which has, until recently, been part of the bedrock of the post-war settlement. the prediction of the legal action group is slowly but surely being fulfilled. is this the legacy that we wish to leave future generations? sadly it looks as though that will be so, and there will be no respite from further cuts. apart from the greens no party included a reversal or mitigation of the legal aid cuts in its election manifesto. the unexpected victory and attainment of an absolute majority by the conservatives on 7 may 2015 surely means that there is no prospect of reversal of these cuts, and that more are in prospect. thus far my address has been exclusively anglo-centric, for which i apologise. i gather that things here in australia are no better. i am indebted to dr david neal sc and david hillard who have educated me on the position here, but i would not presume to dilate on it, let alone to criticise it. you know the position far better than i do. it is perhaps an irony that for many years australian legal aid campaigners held up the uk legal aid system as a model. from inception it was a system which provided aid across the board in criminal, family and civil matters at rates which made it economically viable for lawyers to work on legally aided cases. as i have shown, the uk government, until magna carta and access to justice in family proceedings 104 the arrival of the coalition in 2010, had been committed to providing levels of funding which reflected a genuine commitment to the principle of equality before the law. i am told that the modern era of legal aid in australia – which dates from the whitlam government of 1972 has never seen either the breadth of coverage or the level of funding to match the uk legal aid system. 45 the first decade of the 2000s saw legal aid commissions progressively reduce grants of legal aid in order to stay within their tightly constrained budgets. they have increasingly imposed means tests, merits tests, quotas, and have taken legal areas out of scope. david hillard tells me that now legal aid funding is $20m p.a. less than it was in 1997. 46 i gather that in five of the eight states and territories, the means test for a grant of legal aid excludes some people who fall below the commonly accepted “henderson poverty line”. 47 i gather that in this state the income limit is 52.4% of the minimum weekly wage. i gather that only 8% of households would qualify for contribution free legal aid and that only a further 3% would qualify for a grant with a contribution. based on research done by pricewaterhousecoopers in 2009, total australian government spending on legal aid commissions came to $28 per capita. by contrast, the uk government spent $86 on legal aid. 48 by 2012, the uk figure had dropped back to $60 per capita. 49 i gather that in victoria a parent in a private family law residence and contact dispute will not be granted legal aid for representation unless the other party has a lawyer. that is bad, but at least it is an improvement on what is happening now in england and wales. i gather that children under 10 will no longer have someone to represent them in child protection cases even when the court says they should. that is even worse than the position in england and wales. 50 i gather that a recent agreement thrashed out in canberra concerning the funding of community legal centres will impose further 45 david neal, „law and power: livin‟ in the „70s‟ (2013) 29 law in context 99. 46 this figure has not been adjusted for inflation. you have $20m less in 1997 dollars. 47 pricewaterhouse coopers, legal aid funding: current challenges and the opportunities of cooperative federalism (2009) 36. 48 ibid 59-60. 49 european commission for the efficiency of justice (cepej), „report on european judicial systems – edition 2014 (2012 data): efficiency and quality of justice‟ <http://www.coe.int./t/dghl/cooperation/cepej/evaluation/2014/rapport_2014_en. pdf> accessed 26 august 2015, 46. 50 „legal aid matters‟ (law institute victoria) <http://www.liv.asn.au/forlawyers/submissions-and-liv-projects/legal-aid-matters> accessed 26 august 2015. the denning law journal 105 swinging cuts: it will fall from $42m annually to $30m. a depressing harbinger indeed. although australia has not yet suffered the full extent of the dramatic cuts imposed in 2013 in the uk, the writing is clearly on the wall here. the declining commitment of governments in both countries to genuine equality before the law and to the cluster of rule of law concepts – of which magna carta forms a significant part – should put a brake on meretricious rhetoric and produce calls for fidelity to the ideals which they both claim. let me end with the words of sir alan moses in the speech from which i have already quoted: “so let me suggest a measurement for the success of our society and democracy, so happily ignored by those who seek majority support. it is how we deal with and protect our unpopular minorities. democracy even during an election is not about the will of the majority but about how the voiceless minority those who are unprotected and without legal assistance – are protected against power: the power of the majority and the power of those who govern us.” 404 not found human rights, 'arranged' marriages and nullity law: when do 'force', parental 109 denning law journal 2016 vol 28 special issue pp 109-137 combating the bribery of foreign public officials and the “art of persuasion”: the case of alstom and the energy sector john hatchard abstract this article explores some of the developing strategies designed to tackle the supply side of transnational corruption through the “art of persuasion” i.e. how to “persuade” commercial organisations, no matter how powerful, to commit to good governance and integrity in their business. in doing so, it uses alstom sa (hereinafter alstom) as a case study. the article is divided into three parts. part 1 explores some of “persuasive” techniques designed to combat the bribery of foreign public officials and to enhance corporate good governance and integrity. part 2 explores some of the lessons and challenges from the alstom case whilst part 3 contains a conclusion which re-visits the “art of persuasion”. key words: corruption; bribery of foreign public officials; ‘art of persuasion’; debarment; alstom; bribery act 2010; foreign corrupt practices act; world bank procurement guidelines. the challenge combating corruption and enhancing good governance are neither the sole preserve of the public sector nor simply national issues. today the private sector wields immense economic power and political influence both nationally and internationally and it is in those sectors where the  professor of law, buckingham law school; co-director, university of buckingham centre for extractive energy studies (ubcees). this is an updated and expanded version of a paper given at a ubcees conference. e-mail: john.hatchard@buckingham.ac.uk combating foreign bribery 110 state and the private sector interact and intersect that are often characterised by corrupt practices.1 this is particularly the case in the energy and related sectors. for example, some 3.5 billion people live in countries rich in oil, gas or minerals. as the world bank has emphasised, “with good governance and transparent management, the revenues from extractive industries can have a transformational impact on reducing poverty and boosting shared prosperity, while respecting community needs and the environment”.2 oil and gas producers also pay governments huge sums for contracts as well as licence fees and taxes. yet this wealth is often not translated into social and economic development in many of the resource-rich states for the considerable revenues that these produce are often the root cause of both grand corruption and the bribery of foreign public officials by transnational corporations.3 as the commission for africa has put it: “it is not only the politicians and public officials who create the problem: it is also the corporations, bankers, the lawyers and the accountants, and the engineers working on public contracts”.4 given this reality, in seeking to address bribery on the supply side, new strategies are required. as slapper puts it: “this is a world in which the power and reach of transnational corporations is something that requires the development of a 1 in this context, the “private sector” is defined as “the sector of a national economy under private ownership in which the allocation of productive resources is controlled by market forces, rather than public authorities and other sectors of the economy not under the public sector or government”, article 1, african union convention on the prevention and combating of corruption. 2 according to the world bank, non-renewable mineral resources play a dominant role in 81 countries, which collectively account for a quarter of world gdp, half of the world’s population, and nearly 70% of those in extreme poverty. africa is home to about 30% of the world’s mineral reserves, 10% of the world’s oil, and 8% of the world’s natural gas: see <http://www.worldbank.org/en/topic/extractiveindustries/overview#1> accessed 1 july 2016. 3 revenue watch institute/transparency international, promoting revenue transparency: 2011 report on oil and gas companies (2011) 5. 4 commission for africa, our common interest (commission for africa 2005) 150. the denning law journal 111 jurisprudence different from that which emerged in an earlier era...”5 this article explores some of the developing strategies designed to tackle the supply side of transnational corruption through the “art of persuasion” i.e. how to “persuade” commercial organisations, no matter how powerful, to commit to good governance and integrity in their business.6 in doing so, it uses alstom sa (hereinafter alstom) as a case study. alstom is headquartered in france and is involved in the engineering and, until recently, the energy sector.7 it operates via a series of subsidiaries through which it bids to secure contracts on projects around the world, some of which are funded by the world bank and other international financial institutions. it has some 110,000 employees in over seventy countries.8 the article is divided into three parts. part 1 explores some of “persuasive” techniques designed to combat the bribery of foreign public officials and to enhance corporate good governance and integrity. part 2 explores some of the lessons and challenges from the alstom case whilst part 3 contains a conclusion which re-visits the “art of persuasion”. part 1: the “art of persuasion” given their economic and political muscle, “persuading” commercial organisations, including even the most powerful transnational corporate entities (and however reluctantly), to act with integrity and to implement effective anti-bribery measures in their business activities is potentially extremely challenging.9 5 gary slapper, “violent corporate crime, corporate social responsibility and human rights” in aurora voiculescu and helen yanacopulos (eds), the business of human rights: an evolving agenda for corporate responsibility (zed books 2010) 81. 6 the term “commercial organisations” is used in the uk bribery act 2010 with reference to foreign bribery offences: see s 7(5)(c). in general, in this article it covers corporate entities and partnerships which carry on a trade, business or profession. 7 as noted below, the proposed sale of its energy business to ge was put in jeopardy due to alstom’s involvement in a series of global bribery scandals. 8 the information is drawn from the statement of facts contained in alstom’s plea agreement with the us department of justice in 2014: see united states v alstom sa case 3:14-cr-00246-jba. 9 kpmg, anti-bribery and corruption: rising to the challenge in the age of globalization (kpmg 2015) 7. combating foreign bribery 112 in practice the challenge is to “persuade” such entities, whether they want to or not, to i. take effective steps to prevent the bribery of foreign public officials in their business activities; and ii. reveal everything about any past involvement in such bribery. there are a series of persuasive strategies that suggest that some progress can be, and is being, made in this regard. in essence these strategies consist of: a. moral persuasion: persuading commercial organisations to develop and implement effective internal ethics and compliance mechanisms; b. gentle persuasion: persuading commercial organisations to adhere to international standards on corporate good governance and integrity; c. forceful persuasion: prosecuting those commercial organisations and their officials for their involvement in foreign bribery; d. persuasive threats: encouraging commercial organisations to selfreport their wrongdoing backed up by threats if this is not done.10 a. moral persuasion: persuading commercial organisations to develop and implement internal ethics and compliance mechanisms commercial organisations are increasingly concerned about their potential for exposure to reputational and litigation risks for a failure to prevent bribery within their global operations. in practice many have developed their own a code of ethics and anti-bribery programmes.11 this finds support in the united nations convention against corruption (uncac) which highlights the importance of: “promoting the development of standards and procedures designed to safeguard the integrity of relevant private entities, including codes of conduct for the correct, honourable and proper 10 for a general discussion see john hatchard, combating corruption: legal approaches to supporting good governance and integrity in africa (edward elgar, 2014) 335-345. 11 in this context a “programme” represents “the enterprise’s anti-bribery efforts including values, code of conduct, detailed policies and procedures, risk management, internal and external communication, training and guidance, internal controls, oversight, monitoring and assurance”: transparency international, business principles for countering bribery (2013) principle 2. the denning law journal 113 performance of the activities of business … and for the promotion of good commercial practices among businesses and in the contractual relations of businesses with the state”.12 the publication of such codes and programmes highlights a public commitment on the part of the commercial organisation to corporate good governance. a good example is provided by alstom itself: “our code of ethics is essential and all employees, in their day-today work, need to share the same clear values and observe the same rules of personal and collective conduct that define alstom as an ethical company”.13 in practice, the value of such codes and programmes is questionable and, as transparency international (ti) has observed: “[a]t their worst, corporate responsibility programmes may be mere window-dressing exercises. at their best, these initiatives represent genuine attempts by companies working with stakeholders to address the great environmental, social and ethical challenges of our times”.14 as discussed below, the corporate codes of ethics and compliance programmes are reinforced by “gentle persuasion” initiatives. b. gentle persuasion: persuading commercial organisations to adhere to international standards on corporate good governance and integrity there are now an impressive range of global standard-setting initiatives aimed at enhancing integrity and combating corruption in the 12 art 12(2)(b). article 12(1) requires each state party “in accordance with the fundamental principles of its legal system” to prevent corruption involving the private sector [and] enhance accounting and auditing standards. 13 the alstom code of ethics is available at <https://www.unglobalcompact.org/system/attachments/cop_2015/211831/origin al/alstomcodeethics_gb_2014_interactif_oct14.pdf?1447744097> accessed 1 july 2016. 14 transparency international, corporate responsibility & anti-corruption: the missing link? (ti working paper 01/2010) 1. combating foreign bribery 114 private sector.15 perhaps the best known is the united nations global compact (ungc) which is widely regarded as the world’s largest corporate responsibility initiative. the ungc consists of a set of voluntary norms consisting of ten principles (the ungc principles). the 10th principle, which was adopted in 2004, simply states: “businesses should work against corruption in all its forms, including extortion and bribery”. the organisation for economic cooperation and development (oecd) guidelines for multinational enterprises and the transparency international business principles for countering bribery (the business principles) contain similar principles.16 the business principles provide a blueprint for the development of effective corporate good governance and integrity. they are based on a board commitment to the fundamental values of integrity, transparency, and accountability and the principle that “[e]nterprises should aim to create and maintain a trust-based and inclusive internal culture in which bribery is not tolerated”.17 there is also a commitment by the “enterprise” to the implementation of a “programme” to counter bribery. given the realities of international business, the business principles also require the enterprise to extend its programme to its subsidiaries and “use its influence to encourage an equivalent programme in other business entities in which it has a significant investment or with which it has significant business relationships”.18 further it should take appropriate action in respect of joint ventures and consortia, contractors and suppliers and agents and representatives.19 whilst these initiatives comprise recommendations, the ungc involves some monitoring. over 12,000 “business participants” in 170 countries have registered with the ungc, with each making a 15 for a detailed account of these initiatives, see colin nicholls, tim daniel, alan bacarese, james maton and john hatchard, corruption and misuse of public office (3rd edn, oup 2017) paras 13.04-13.58. 16 principle 2 states that “the enterprise shall prohibit bribery in any form whether direct or indirect”. the working definition of “bribery” adopted for the purposes of the business principles is: “the offering, promising, giving, accepting or soliciting of an advantage as an inducement for an action which is illegal or a breach of trust” 4. 17 principle 2. 18 para 5.2.1. 19 alstom’s use of subsidiaries and agents/consultants through which to pay bribes to foreign public officials is discussed below. the denning law journal 115 commitment to integrate the principles into their strategies and operations. all are required to produce an annual communication on progress (cop) which is a public self-assessment on progress made in implementing the ungc principles, and in supporting broad un development goals. alstom joined the ungc in 2008 and since 2011 has been categorised as an “active” member. its annual cop reports highlight its commitment to the ungc principles. for example, in 2012 it emphasised the fact that “infringing laws, acting without business ethics and personal integrity inhibits innovation, increases costs, [and] impairs quality”. further, it announced that it had a code of ethics which was available in numerous languages and that it had also developed a training regime on ethics for its employees.20 similarly, in its 2015 cop report, the company highlighted its commitment to business ethics noting that the alstom integrity programme was certified in 2011 and 2014 by ethic international and that as a member of the ungc it was involved in initiatives and working groups on preventing corruption.21 on the face of it, such public affirmations suggest that the standard setting initiatives can influence the development of a “good governance” culture within commercial organisations. however to what extent this occurs in practice is questionable and this is highlighted in the case of alstom (and its subsidiaries) which, as discussed below, has a lengthy record of bribe-paying on a global scale. c. forceful persuasion: prosecuting those commercial organisations and their senior officials involved in foreign bribery the commission for africa has rightly demanded that: “... rich nations should put in place a series of measures to ... deter their own companies from paying bribes in the first place. after all as the former zairean dictator president mobutu sese seko once reputedly said: ‘it takes two to be corrupt – the corrupted and the corrupter’. and he should know”.22 1. the oecd anti-bribery convention 20 see alstom, ethics and compliance: overall risk assessment (2012) 4. 21 alstom, activity and sustainable development report 2014-2015 at 4. the report comprises part of the 2015 alstom cop report. 22 commission for africa, (n 4) 31. combating foreign bribery 116 the key initiative here is the oecd convention on combating bribery of foreign public officials in international business transactions (the oecd anti-bribery convention). this came into force on 15 february 1999 and is concerned wholly with “active corruption” i.e. bribery on the supply side. its significance is emphasised by the fact that the 41 parties to the convention are involved in some two-thirds of world exports and almost 90 per cent of total foreign direct investment outflows.23 article 1(1) states that: “each party shall take such measures as may be necessary to establish that it is a criminal offence under its law for any person intentionally to offer, promise or give any undue pecuniary or other advantage, whether directly or through intermediaries, to a foreign public official, for that official or for a third party, in order that the official act or refrain from acting in relation to the performance of official duties, in order to obtain or retain business or other improper advantage in the conduct of international business”. for the purposes of the oecd anti-bribery convention, a foreign public official means “any person holding a legislative, administrative or judicial office of a foreign country, whether appointed or elected; any person exercising a public function for a foreign country, including for a public agency or public enterprise; and any official or agent of a public international organization”.24 in view of the economic interests and/or political pressure that might affect prosecutions, article 5 makes it clear that investigations and prosecutions: “… shall not be influenced by considerations of national economic interest, the potential effect upon relations with another state or the identity of the national or legal person involved”. article 5 is supported by paragraph 6 of the annex to the 1997 revised recommendations of the oecd ministerial council which 23 these comprise the thirty-five oecd member states plus argentina, brazil, bulgaria, colombia, russian federation and south africa. 24 art 1(4)(a). the denning law journal 117 stresses that “public prosecutors should exercise their discretion independently, based on professional motives”.25 2. the oecd anti-bribery convention in practice the united states (us) through its foreign corrupt practices act 1977 and the united kingdom (uk) through its bribery act 2010 are both actively implementing their convention obligations. i) the foreign corrupt practices act the foreign corrupt practices act (fcpa) makes it unlawful for us persons to make a corrupt payment to a foreign public official for the purpose of obtaining or retaining business for or with, or directing business to, any person.26 what makes the fcpa so powerful is that these provisions also apply to issuers of securities listed and traded on a us exchange.27 in addition, the act requires companies to keep accurate books and records and to establish and maintain adequate internal controls. failure to do so constitutes a criminal offence. until august 2014, alstom’s shares were listed on the new york stock exchange. accordingly it was an “issuer” for the purposes of the fcpa.28 as discussed below, in practice, the significant penalties that can be imposed by a court under the fcpa means that commercial organisations are willing to reach a settlement with the two enforcement agencies, the department of justice (doj) and the securities and exchange commission (sec), to resolve foreign bribery case(s). of particular significance here is 25 commentary 27 to the oecd anti-bribery convention makes it clear that the decision must not be subject to improper influence by concerns of a political nature. prosecutorial discretion may include the application of a public interest test but this is to be determined by the prosecutor. 26 curiously, the word “bribe” does not appear in the act itself. 27 see generally department of justice fcpa: a resource guide to the us foreign corrupt practices act (doj 2015) <https://www.justice.gov/sites/default/files/criminalfraud/legacy/2015/01/16/guide.pdf> accessed 1 september 2016. 28 for a full discussion on the fcpa see colin nicholls et al, corruption and misuse of public office (n 15) ch 20. for a useful discussion on fcpa enforcement cases involving energy issues in africa see sarah banco et al, “anticorruption initiatives in africa” in marc hammerson and john c lamaster (eds), oil and gas in africa: a legal and commercial analysis of the upstream industry (globe law and business 2015) 157-163. combating foreign bribery 118 that the wide jurisdictional provisions of the fcpa means that the doj frequently takes on the role of a “global enforcer”. indeed, in terms of fines, eight out of the top ten fcpa enforcement cases have been imposed on companies headquartered outside the us. as discussed below, one of those cases involved a doj investigation into allegations that alstom had paid bribes to obtain business on a global scale. as a result, the company currently has the dubious distinction of being subjected to the highest fine ever imposed for a breach of the fcpa provisions. one of the reasons for the doj commencing the investigation was that there was no investigation into alstom’s affairs being undertaken by france, where the company has its headquarters. ii) the bribery act 2010 the uk was subjected to significant and prolonged criticism by both the oecd working group on bribery and non-governmental organisations following the decision by the serious fraud office (sfo) not to prosecute bae in respect of the al yamamah bribery case.29 however since 2012 a policy change has seen the sfo bringing a series of foreign bribery prosecutions against both commercial organisations and individuals. to date these have largely been brought under the pre-2010 bribery laws as the bribery act 2010 is not retrospective. as discussed below, several alstom subsidiaries and senior officials are the subject of ongoing criminal proceedings in the uk. section 6 of the bribery act 2010 specifically prohibits the bribery of a foreign public official and is based of article 1 of the oecd antibribery convention. significantly, section 7 introduces a strict liability of offence of “failing to prevent corruption”. this provides: (1) a relevant commercial organisation (‘c’) is guilty of an offence under this section if a person (‘a’) associated with c bribes another person intending— (a) to obtain or retain business for c; or (b) to obtain or retain an advantage in the conduct of business for c.30 29 for a full account see colin nicholls, tim daniel, alan bacarese and john hatchard, corruption and misuse of public office (2nd edn, oup 2011) paras 7.208-7.220. 30 the first conviction under section 7 came in december 2015 when the sweett group plc pleaded guilty to a charge of failing to prevent an act of bribery the denning law journal 119 the significance of the development of effective corporate codes of conduct and compliance programmes is highlighted in section 7(2): (2) but it is a defence for c to prove that c had in place adequate procedures designed to prevent persons associated with c from undertaking such conduct. in this context, the ministry of justice has published guidance in the form of six principles as to what constitute “adequate procedures”31 with one being that: “the commercial organisation seeks to ensure that its bribery prevention policies and procedures are embedded and understood throughout the organisation through internal and external communication, including training that is proportionate to the risks it faces”.32 the bribery act also has a wide jurisdictional reach. it applies to uk companies and uk registered partnerships as well as overseas entities which carry on a business or part of a business in the uk. as nicholls points out, the result is that “an overseas company can be prosecuted for failing to prevent bribery by a person performing services on its behalf irrespective of the nationality of the person offering the bribe, and even though the bribery is in relation to non-uk businesses and the bribery is committed entirely outside the uk”.33 iii) other parties to the oecd anti-bribery convention regrettably, the political will to prosecute foreign bribery cases is scarcely reflected elsewhere. all parties to the oecd anti-bribery convention have put in place domestic laws that criminalise the bribery of foreign public officials. however, the continuing low number of prosecutions in the majority of parties raises concerns over the intended to secure and retain a contract in the united arab emirates: see sfo press release, 19 february 2016 and see n 54 below. 31 ministry of justice, the bribery act: guidance about procedures which commercial organisations can put in place to prevent persons associated with them from bribing (2011). this was published as required by section 9 of the bribery act 2010. for a full analysis see nicholls et al, (n 15) paras 4.56-4.75. 32 principle 5. 33 nicholls et al, (n 15) para 3.18. combating foreign bribery 120 effectiveness of the convention itself. this is reflected in the ti annual progress report on the implementation of the convention 2015 which found that there was “active enforcement” in only four convention countries.34 france, (where alstom has its headquarters, it must be remembered), was categorised by ti in its 2014 report exporting corruption as having “limited enforcement”. this was a somewhat generous classification given that between 2011 and 2014 there were no major cases concluded which led to the imposition of sanctions.35 the ti report also highlights the fact that france continues to disregard the article 5 provision and cites concerns over the perceived lack of independence of prosecutors from the ministry of justice.36 certainly, it appears that neither alstom nor any of its senior officials have been subject to any prosecution in france.37 saenz’s view seems to encapsulate the present position: “france’s … general unwillingness to convict its own firms of foreign bribery offers little promise for change in the near future”.38 continuing pressure on all parties for the use of forceful persuasion is highlighted in the oecd ministerial declaration of march 2016. here “ministers and representative of the parties to the oecd convention” reaffirmed their commitment to the “robust enforcement of the laws implementing the foreign bribery offence by all parties” and reiterated their commitment to article 5.39 it remains to be seen whether this has any real impact on the political will on the part of all parties to the oecd anti-bribery convention to prosecute foreign bribery cases. given this 34 these are germany, switzerland, the united kingdom and the united states. 35 transparency international, exporting corruption: progress report 2014: assessing enforcement of the oecd convention on combating foreign bribery (2014) 2. 36 ibid, 9. 37 between 1999 and 2013, no “legal person” was either acquitted or sanctioned in france: see oecd working group on bribery, annual report 2014, 18. but see n 89 below for a recent development. 38 sara c saenz, “explaining international variance in foreign bribery prosecutions: a comparative case study” (2015) 26 duke journal of comparative & international law 271, 285. this reinforces the importance of the doj decision to bring fcpa enforcement action against alstom. 39 oecd anti-bribery ministerial meeting, ministerial declaration “the oecd anti-bribery convention and its role in the global fight against corruption”, 16 march 2016, para i.1. the denning law journal 121 reality, the development of persuasive threats is a necessary complement to forceful persuasion. d. persuasive threats: encouraging commercial organisations to selfreport their wrongdoing investigating and prosecuting foreign bribery cases is often extremely challenging, especially given the fact that, on the face of it, there is little or no incentive for those involved to reveal the corrupt bargain. whilst criticism of the failure by many parties to the oecd antibribery convention to prosecute foreign bribery cases effectively is justified, in recent years there has been a dramatic rise in the number companies being prepared to self-report their wrongdoing to the law enforcement authorities. in essence, the mere prospect of a conviction for a foreign bribery offence can in itself represent such a persuasive threat as to encourage commercial organisations to self-report any wrongdoing and seek a “deal” or settlement with prosecutors. the key here is the threat of debarment (also known as blacklisting or exclusion). this is the mechanism through which a company or individual is prevented from tendering for, or participating in, a project(s) for a specific reason, such as previous involvement in corrupt practices.40 debarment is now widely regarded as an important procedure for combating foreign bribery as it is fear of economic loss that constitutes such a persuasive threat that it drives the decision to self-report. indeed an oecd study published in 2014 suggests that 1 in 3 foreign bribery cases were instigated by self-reporting by companies.41 here the lead is being taken by both the us via the fcpa and the world bank group. once again, alstom provides an excellent case study. 1. alstom and the fcpa in 2014, the doj announced that investigations had revealed that alstom “had paid more than us$75 million [in bribes] to government officials in countries around the world, including indonesia, saudi arabia, egypt, the bahamas and taiwan, to secure us$4 billion in projects with a 40 see further john hatchard, “recent developments in combating the bribery of foreign public officials: a cause for optimism?” (2007) 85 university of detroit-mercy law review 1, 23-28. 41 oecd foreign bribery report: an analysis of the crime of bribery of foreign public officials (paris 2014) 9. combating foreign bribery 122 profit to the company of approximately us$300 million”.42 as a result, on 22 december 2014, alstom pleaded guilty to charges of violating the fcpa by falsifying its books and records and failing to implement adequate internal controls. on 22 december 2014, alstom issued the following brief press release: “alstom s.a. has agreed to plead guilty to violating the books and records and internal controls provisions of the fcpa and to pay a fine of approximately us$772 million”. it was left to the doj to provide the reasons for imposing the biggest fine ever levied for fcpa offences. these also serve as a warning to other commercial organisations to take persuasive threats seriously.43 1) alstom failed to self-report: i.e. it failed voluntarily to disclose its misconduct. this clearly places the onus on the commercial organisation to take the initiative by self-reporting rather than adopting a “wait and see” approach as to whether their misconduct will be discovered. 2) lack of cooperation by alstom: alstom initially failed to cooperate fully with the doj’s investigation and this impeded the investigation of individuals involved in the bribery scheme. 3) nature and seriousness of the offence: as the plea agreement puts it: “the defendant’s conduct spanned many years and a number of countries and business lines, and involved sophisticated high-level schemes to bribe government officials…”.44 4) alstom lacked an effective compliance and ethics programme at the time of the offence: this emphasises that simply having such a programme in place is not enough: commercial organisations must take steps to ensure that they are effective and subject to periodic review. 5) prior corporate misconduct, including debarment of its subsidiaries by the world bank (see below). the alstom plea agreement also includes detailed information about the alleged role of individual alstom executives, employees and 42 doj press release, november 13 2015. 43 the full details of the plea agreement of 22 december 2014 are set out in united states v alstom sa case 3:14-cr-00246-jba. 44 ibid, 14. the denning law journal 123 “consultants” in the bribery schemes. this is significant in that attention is not simply focused on the organisation as a legal person, but also on those within it who are responsible for the wrongdoing. the desire on the part of alstom to plead guilty to a non-bribery offence is of crucial importance. for commercial organisations, it is vital to avoid a bribery conviction which brings with it possible debarment proceedings in the us and the loss of us government contracts. thus the threat of debarment and the dire economic consequences thereof, can “persuade” even the most powerful commercial organisations of the need to “reveal all” and to reach a settlement in foreign bribery cases. 2. alstom and the world bank much of the funding for major projects in developing countries is provided by the five multilateral development banks.45 in recent years, these institutions have paid increasing attention to combating fraud and corruption in the procurement process. the role of the world bank group (wbg) in this respect is particularly illustrative.46 the wbg has a strict policy on dealing with fraud and corruption in relation to wbg-financed projects. its policy on “fraud and corruption” is set out in the procurement guidelines47 as follows: “it is the bank’s policy to require that borrowers (including beneficiaries of bank loans), bidders, suppliers, contractors and their agents (whether declared or not), sub-contractors, subconsultants, service providers or suppliers, and any personnel thereof, observe the highest standard of ethics during the procurement and execution of bank-financed contracts”.48 45 the african development bank group, the asian development bank, the european bank for reconstruction and development, the inter-american development bank group and the world bank group. 46 the world bank group comprises five agencies: the international bank for reconstruction and development (ibrd); international development agency (ida); international finance corporation (ifc); multilateral investment guarantee agency (miga); and the international centre for settlement of investment disputes (icsid). the term “world bank” generally refers to the ibrd and the ida. 47 wbg guidelines: procurement of goods, works, and non-consulting services under ibrd loans and ida credits & grants by world bank borrowers, 2011, updated 2014. 48 para 1.16. combating foreign bribery 124 a similar provision is found in the consultants guidelines. a violation of the fraud and corruption provisions of the procurement guidelines or consultants guidelines renders a “respondent” (i.e. a firm or individual) liable to sanctions.49 article 9 of the wbg sanctioning guidelines provides for five possible sanctions: a) a public letter of reprimand; b) conditional non-debarment: the respondent is required to comply with certain remedial, preventative or other conditions as a condition to avoiding debarment from wbg projects; c) debarment for a fixed period; the respondent is declared ineligible to tender for a wbg-funded project, either indefinitely or for a stated period of time; d) debarment with conditional release; the respondent is released from debarment if the respondent demonstrates compliance with certain remedial, preventative or other conditions for release, after a minimum period of debarment; e) restitution or remedy: the respondent is required to make restitution to the borrower, to any other party or take action to remedy the harm done by its misconduct. on 9 april 2010, the five multilateral development banks together with the international monetary fund and european investment bank group (the participating institutions) signed an agreement for mutual enforcement of debarment decisions (the mutual debarment agreement). under it, each agrees to enforce debarment decisions made by another participating institution as soon as possible.50 this coordinated and comprehensive approach to debarment is a significant milestone as it provides a common framework for tackling transnational corruption and provides another significant persuasive threat to the economic well-being of commercial organisations.51 the alstom case neatly illustrates the debarment and cross-debarment process. in 2002 alstom made an improper payment of €110,000 to an 49 the current listing of ineligible firms and individuals is available at <http://web.worldbank.org/external/default/main?thesitepk=84266&contentmd k=64069844&menupk=116730&pagepk=64148989&pipk=64148984> accessed 1 july 2016. 50 this is subject to the criteria set out in paragraph 4 of the agreement. 51 for a useful discussion on the 2010 agreement see lorenzo nesti, “the 2010 ‘agreement on mutual enforcement of debarment decisions’ and its impact for the fight against fraud and corruption in public procurement” (2014) 14(1) journal of public procurement 62-95. the denning law journal 125 entity controlled by a former senior government official for consultancy services in relation to the wbg-financed zambia power rehabilitation project. following alstom’s acknowledgment of misconduct in relation to the project, in 2012, alstom hydro france and alstom network schweiz ag (switzerland) and their affiliates were debarred by the world bank for a period of three years. as a result, they were also subject to crossdebarment under the mutual debarment agreement. this was all part of a negotiated resolution agreement between alstom and the world bank which also included a restitution payment by the two companies totalling some $9.5 million. in addition, alstom itself and its other affiliates were conditionally non-debarred.52 3. strengthening corporate compliance programmes the failure of alstom to have in place an effective anti-corruption compliance programme was noted in both the agreement with the world bank and the plea agreement with the doj. as part of the world bank settlement, the world bank’s integrity compliance office (ico) required alstom to implement a corporate compliance programme in line with the world bank’s integrity compliance guidelines. an independent compliance monitor was appointed to oversee the process. by 2014 the ico was satisfied that this had been implemented and accordingly alstom’s subsidiaries were released from debarment. in an important illustration of cooperation and coordination, based on the ico’s findings, the doj did not then impose a compliance monitor in the fcpa proceedings. it is regrettable, albeit perhaps not surprising, that alstom’s ungc communications on progress makes no reference to these events (nor indeed to any of alstom’s global misconduct): thus bringing into question the value of such reports. part 2: some lessons from the alstom case the alstom case provides a number of vital lessons in the art of persuading commercial organisations to prevent involvement in foreign bribery in their business activities. this part explores some of the key lessons. 52 world bank press release, 22 february 2012. combating foreign bribery 126 1. recognising the growing importance of corporate codes of ethics and compliance programmes on the face of it, voluntary corporate codes of ethics and compliance programmes appear to constitute merely “moral persuasion”. alstom’s code of ethics is a case in point. some form of code was in place during the period of bribe paying by the company and its subsidiaries: yet it had little or no impact on the way in which the company went about its global bribery activities. today, such codes and programmes are far more significant. thus the failure of alstom to have in place an effective compliance programme was a factor in determining the enormous fine imposed upon it by the doj as well as influencing the terms of its negotiated settlement with the wbg. more generally, under the bribery act the existence of a code of ethics is an important factor in determining whether or not a commercial organisation has “adequate procedures” in place to prove it has a defence to a section 7 charge. in the past, such codes and programmes may well have been ignored by company management and shareholders. this is not the case today with the pressure now on commercial organisations not only to have them in place but to make them effective. moral persuasion has been reinforced by persuasive threats. 2. controlling the activities of sales agents and other third parties as banco et al point out, multi-national companies can face serious challenges when seeking to obtain or retain business in the energy sector in many parts of the world.53 a particular challenge is controlling the activities of sales agents, subsidiaries and third parties.54 this is emphasised in a 2015 survey by kpmg international. this found that an increasing number of companies were finding corporate anti-bribery and corruption compliance highly challenging with their overriding concern relating to the auditing of third parties for compliance. this was due to the “very high proportion of bribes now paid either by third parties to the 53 see banco et al, (n 28) 152. 54 for example, in the sweett group case the corrupt payments were made by its subsidiary company, cyril sweett international limited to khaled al badie, a senior official of aaai to secure the award of a contract with aaai for the building of the rotana hotel in abu dhabi. as noted below, such cases also help reveal the identities of those foreign public officials involved in the bribery scandal and lead to their possible prosecution. the denning law journal 127 ultimate recipient or to seemingly unrelated parties acting on behalf of the ultimate recipient”.55 this is confirmed by the oecd working group on bribery which reported that 3 out of 4 cases analysed involved the use of intermediaries.56 the pressure on commercial organisations to address the problem of bribery by their agents is neatly illustrated by the alstom case. for many years the company had used external “sales consultants” in a number of countries who were compensated on a “success fee” basis.57 in 2014 the danger of such a practice was highlighted by the us doj: “in connection with the bidding on the power projects [in the bahamas], … alstom retained consultant i [whose] primary purpose was not to provide legitimate consulting services to alstom and its subsidiaries but instead was to pay bribes [to a public official] who had the ability to influence the award of power contracts”.58 it is noteworthy that in 2014, the company announced that “in an effort to further reduce compliance risks to the group and in line with alstom achieving the highest ethical business standards, the company has decided to discontinue the hiring of such sales consultants”.59 other commercial organisations may well need to follow suit. 3. developing the global political will to combat the bribery of foreign public officials combating the bribery of public officials effectively also requires the political will on the part of all states to take the necessary steps to tackle the problem. there are still far too many states that demonstrate “no political will” to do so, despite their having in place legislation in compliance with the oecd anti-bribery convention. here the work of 55 kpmg international, anti-bribery and corruption (n 9) 7. 56 oecd foreign bribery report (n 41) 8. 57 alstom press release, january 17 2014. 58 see the discussion below on the fate of the bahamian official. similarly, in the case of bribes paid to obtain a power contract in indonesia, the doj has noted that to conceal the bribes, alstom “retained two consultants purportedly to provide legitimate consultation on behalf of alstom … in reality, the primary purpose for hiring the consultants was to use the consultants to pay bribes to indonesian officials”: doj press release july 17 2014. the press release includes fascinating details about how the bribes were allegedly paid. 59 alstom press release (n 57). combating foreign bribery 128 transparency international and the oecd working group on bribery in seeking to improve this situation is particularly noteworthy. however, the approach of the us and the uk is encouraging. indeed, the extensive jurisdiction provided for in the fcpa and ba means that few transnational corporations can avoid the prospect of prosecution even where the alleged foreign bribery offence(s) took place elsewhere. 4. prosecuting individuals within the commercial organisation it is notoriously difficult to identify those individuals within a commercial organisation who were involved in the bribery of foreign public officials. as the yates memorandum puts it: “in large corporations, where responsibility can be diffuse and decisions are made at various levels, it can be difficult to determine if someone possessed the knowledge and criminal intent necessary to establish their guilt beyond a reasonable doubt. this is particularly true when determining the culpability of high-level executives, who may be insulated from the day-to-day activity in which the misconduct occurs”.60 it is therefore necessary to “persuade” commercial organisations to disclose information about those of its officials and employees who were responsible for or involved in the acts of foreign bribery. if successful, this can provide a most powerful deterrent as it now exposes even their most senior officials to criminal or civil liability. in practice, the us has been willing to prosecute such individuals. for example, between 2012 and 2014, four senior officials of alstom subsidiaries pleaded guilty to fcpa violations in respect of the awarding of a us$118 million power contract in indonesia known as the tarahan project.61 to emphasise this commitment, in september 2015 the us deputy attorney general, sally yates issued an internal doj memorandum (the yates memo) entitled “individual accountability for corporate wrongdoing”.62 this states that: 60 see n 62 below, at 2. 61 see department of justice press release, 17 july 2014. marubeni corporation, alstom’s consortium partner on the tarahan project also pleaded guilty to conspiracy to violate the fcpa and was sentenced to pay a criminal fine of us$88 million. 62 the yates memorandum is available at <https://www.justice.gov/dag/file/769036/download> accessed 1 july 2016 the denning law journal 129 “one of the most effective ways to combat corporate misconduct is by seeking accountability from the individuals who perpetrated the wrongdoing. such accountability is important for several reasons: it deters future illegal activity, it incentivizes changes in corporate behavior, it ensures that the proper parties are held responsible for their actions, and it promotes the public's confidence in our justice system”.63 the yates memo provides “guidance” which will apply to all future investigations of corporate wrongdoing. it makes it clear that, amongst other things: (1) to be eligible for any cooperation credit, corporations must provide to the department [of justice] all relevant facts about the individuals involved in corporate misconduct;64 (2) both criminal and civil corporate investigations should focus on individuals from the inception of the investigation;65 and (3) absent extraordinary circumstances, no corporate resolution will provide protection from criminal or civil liability for any individuals.66 given the already significant financial penalties being imposed on commercial organisations by the doj, this represents a most significant persuasive threat that requires commercial organisations to adopt a “reveal all” approach. indeed, as noted earlier, one reason for alstom’s record fine was due to its failure to cooperate fully with the doj investigators. in the uk, a somewhat similar approach is being taken with the sfo launching a series of prosecutions against several senior alstom company executives in relation to the alleged payment of bribes paid in order to obtain business in india, poland and tunisia.67 63 ibid, 1 64 emphasis in the original. 65 guidance, para 2. the yates memo (at 2) states that the guidance also applies to civil corporate matters as these “serve to redress misconduct and deter future wrongdoing”. 66 guidance, para 4. 67 as at 1 november 2016, the cases were still ongoing. in some cases, the sharing of information between states is the catalyst for launching an investigation. for example, the sfo investigation which led to alstom subsidiaries and senior company officials being charged with bribery offences in combating foreign bribery 130 given this reality, the ey 14th global fraud survey (the ey global fraud survey) entitled corporate misconduct: individual consequences makes the position quite clear: “boards need to be aware that regulators are enforcing anticorruption legislation with vigor, and are increasingly focused on individual misconduct. boards must respond and confirm that they are doing enough to protect their business from these risks, or both board members and their employees may be held personally responsible for misconduct under their watch”.68 5. revealing the identity of the foreign public officials who benefitted from the bribe the “reveal all” approach demanded by self-reporting also helps to remove the secrecy surrounding the corrupt bargain itself and thus identify those foreign public officials involved in the bribery scandal. this provides the victim states with an opportunity to take appropriate action against those officials. for example, as noted earlier, alstom pleaded guilty to bribery in connection with the obtaining of a contract with the bahamas electricity corporation (bec), a government-owned company. in may 2016, a court in the bahamas convicted fred ramsey, a former board member of the bec, of a series of bribery offences involving his assisting alstom to obtain win contracts and overturn a government award to a competitor. it might be noted that the chief prosecution witness at the trial was the alstom consultant who paid the bribes: he had been granted immunity in the case. 69 6. dealing with prosecutions in multiple jurisdictions the alstom case highlights the fact that by adopting (i.e. being “persuaded” to adopt) the “reveal all” approach may open the company to hungary commenced as a result of information supplied by the office of the attorney general in switzerland: sfo press release 12 may 2015. 68 ey 14th global fraud survey, corporate misconduct: individual consequences (2016) 4. the ey survey also found that the majority of respondents supported the prosecution of individual executives with 83% of respondents viewing enforcement against management as an effective deterrent in combating corruption: 5. 69 richard l cassim, “bahamas utility official convicted of taking alstom bribes” fcpa blog, 5 may 2016: <http://www.fcpablog.com/blog/2016/5/5/bahamas-utility-official-convicted-oftaking-alstom-bribes.html> accessed 1 august 2016. the denning law journal 131 enforcement actions in multiple jurisdictions or by multiple international financial institutions based on the same or similar facts. whilst not an “alstom” case, the bonny island case provides a good illustration of such actions. this related to contracts for a natural gas project in nigeria obtained by four foreign companies (the tskl consortium) allegedly through bribery. the tskl consortium later agreed a fcpa-related settlement with the doj and sec and then, following an investigation in nigeria, to a settlement with the nigerian government. the consortium also agreed to pay penalties to the african development bank totalling us$22.7 million for bribes relating to the same contracts whilst an italian court also fined one of the partner companies to the consortium some us$27.4 million.70 in the alstom case, its settlement with the us doj was to resolve charges that it paid bribes to government officials in egypt, saudi arabia, the bahamas and taiwan. but there was no “global” settlement here. this raises the prospect of the company also facing prosecution (or other enforcement action) in these “victim” states with the prospect of significant additional financial penalties being imposed on it. if this is the case, then, without more, this can have a chilling effect on the reveal all approach as companies seek to avoid exposure to criminal liability on a global scale. this is a developing area which raises two further issues. a) a global settlement approach? in cases where more than one party has jurisdiction over the foreign bribery offence, article 4(3) of the oecd anti-bribery convention provides that “the parties involved shall, at the request of one of them, consult with a view to determining the most appropriate jurisdiction for prosecution”. clearly there is no obligation to consult and the provision only applies to parties to the convention. the uncac, which has a global reach,71 takes a similar approach. it provides that “states parties shall consider concluding bilateral or multilateral agreements or arrangements in relation to matters that are subject to investigations, prosecution or judicial proceedings in one or more states”.72 further that in such proceedings, “the competent authorities of those states parties 70 for details and sources of the information see jay holtmeier, “cross-border corruption enforcement: a case for measured coordination among multiple enforcement authorities” (2015) 84 fordham lr 493, 498-499. 71 as at 1 november 2016, there were 180 state parties to the convention. 72 article 49. combating foreign bribery 132 shall, as appropriate, consult one another with a view to coordinating the actions”.73 thus, there is no obligation on states to reach a global settlement and the possibility remains of carbon copy prosecutions74 of, or other enforcement action against, the commercial organisation in multiple states based on the same or similar conduct.75 this is potentially of particular value for victim states which have an opportunity of using the corporate disclosure to prosecute both their own corrupt public officials as well as the bribe paying company.76 the possibility remains of reducing corporate financial liability in the light of a monetary settlement reached in another state or of coordinated action between states to resolve a global bribery issue.77 however whether any “credit” is given by a court in response to such a settlement is uncertain. b) a double jeopardy issue? the double jeopardy rule was developed by the common law to prevent a person being tried twice for the same crime and is widely recognised in both national laws and international conventions. yet the rule is potentially limited by the dual sovereignty principle which provides that two sovereign states can each prosecute a person for the violation of both their laws even if based on the same facts. as colangelo asserts: “a national prosecution applying and enforcing a national law does not erect a bar to successive prosecutions by other states with national jurisdiction over the crime in question”.78 73 article 42(5). 74 a term coined in andrew s boutros and t markus frank, “‘carbon copy’ prosecutions: a growing anti-corruption phenomenon in a shrinking world” [2012] u chicago legal forum 259, 260. 75 alstom’s plea agreement with the doj specifically states that it is only binding on the doj: see united states v alstom sa 14-cr-236 (2014), para 3 (the alstom settlement). 76 an excellent example of this is provided by the lesotho highlands water case: see hatchard, combating corruption (n 10) 245 et seq. 77 for example, in the siemens case, the company entered into a coordinated settlement with both the doj and german authorities. for a useful discussion on this area see holtmeier (n 70) 508-511. 78 anthony j colangelo, “double jeopardy and multiple sovereigns: a jurisdictional theory” (2009) 86 washington university law review 769, 797. the denning law journal 133 for example, in a case involving a siemens employee, the defendant sought to have a corruption charge dismissed in an argentinian court on the basis that he had previously been prosecuted for the same offence in germany. the court refused to dismiss the case ruling that the german court had focused on the private effects of the alleged bribery whilst the argentina case involved potential harm to the public sector.79 as holtmeier comments: “thus, as conceived, the double jeopardy principle is narrow enough that if courts and enforcement agencies can find some way to distinguish the separate proceedings, and show they are not identical, it will rarely be a bar to prosecution”.80 7. civil action by unsuccessful rival bidders the “reveal all” requirement may also leave commercial organisations open to the prospect of civil actions being brought against them by unsuccessful bidders for contracts which were won through bribery.81 for example, at the trial of fred ramsey in the bahamas, the alstom agent responsible for the payment of the bribes testified that these were paid in return, amongst other things, for mr ramsey asking a cabinet minister to intervene to overturn a unanimous decision of the bec to award the contract to a south korean company, han jung.82 in such circumstances, there seems little to prevent han jung bringing civil proceedings against alstom. 8. encouraging whistleblowing the united nations office on drugs and crime (unodc) has noted that there is extensive research to demonstrate that information provided emphasis in the original. the article provides a detailed examination of the issue: see especially 790-805. 79 this information is drawn from lucio fabiani larranga. “double jeopardy? siemens defendant loses argentina dismissal motion”: see further <http://www.fcpablog.com/blog/2015/7/21/double-jeopardy-siemens-defendantloses-argentina-dismissal.html> accessed 1 july 2016. 80 ibid, 515. emphasis in the original. 81 see, for example, the south african case of transnet ltd v sechaba photoscan (pty) ltd [2004] zasca 24 and discussed in hatchard, combating corruption (n 10) 258-259. 82 see holtmeier (n 70) 498. combating foreign bribery 134 by whistleblowers is one of the most common ways in which instances of fraud and corruption are identified.83 it is therefore not surprising that the international community is taking active steps to encourage both whistleblowing and the provision of effective protection for those who do so.84 given this reality, the possibility of whistleblowers revealing corporate wrongdoing is increasingly a threat to commercial organisations. the potential impact of whistleblowing is neatly illustrated by the hsbc bank case in which hervé falciani leaked financial documents showing illegal activities by the swiss arm of the bank.85 the release of the panama papers in 2016 even more starkly highlights the possibility of the “super-whistleblower” who is capable of obtaining vast quantities of data with potentially explosive exposure of nefarious corporate wrongdoing. indeed, commercial organisations can also expect to be exposed to new risks of data loss through cyber attacks.86 there is seemingly no mention of alstom in either of the leaks. however, the threat of exposure of corporate wrongdoing by whistleblowers, either voluntarily or by way of a plea bargain (or through cyber attacks), and its potential economic impact on any commercial organisation is another potentially significant persuasive threat to encourage good corporate governance.87 83 unodc, the united nations convention against corruption: resource guide on good practices in the protection of reporting persons (unodc 2015) 3. this publication contains an excellent bibliography on the wealth of resource material available on this topic. 84 see, for example, the council of europe, recommendation on the protection of whistleblowers (committee of ministers recommendation to member states cm/rec(2014)7). for the purposes of the recommendation, a whistleblower means “any person who reports or discloses information on a threat or harm to the public interest in the context of their work-based relationship, whether it be in the public or private sector”: appendix. 85 for his trouble, in 2015 falciani was convicted by a swiss court of offences relating to his action and sentenced to five years imprisonment. 86 see the ey global fraud survey (n 68) 41. 87 for example, in june 2016, both alstom and ge were named by a whistleblower as being involved in the petrobras bribery case. the information was provided by way of a plea bargain. both denied any involvement in the case but alstom’s shares fell 2.7% on the news: bloomberg news, 7 june, 2016. the denning law journal 135 9. requiring enhanced scrutiny of commercial organisations subject to mergers or acquisitions commercial organisations are now under pressure to perform enhanced due diligence when involved in mergers and acquisitions. this, in itself, can raise concerns about possible misconduct on the part of the other party which can delay or even undermine the proposed deal. for example, at the time of the doj investigation into its activities, alstom was in the process of seeking to sell its energy business to the giant american firm ge for around us$15 billion. this was put on hold until the deal by alstom with the us department of justice paved the way for the sale to proceed. even then alstom was not permitted to pay the us$772 million fine from the proceeds of the merger. according to the ey global fraud survey, despite record levels of mergers and acquisitions: “… respondents are not yet taking potential steps to identify and mitigate key corruption risks before entering into joint ventures or local partnerships”.88 clearly there is still progress to be made here. part 3: conclusion: the art of persuasion revisited this article has explored the challenge of persuading commercial organisations whether they want to or not, to (1) take effective steps to prevent the bribery of foreign public officials in their business activities (the prevention strategy); and (2) reveal everything about any past involvement in such bribery (the reveal all strategy). using the case of alstom, it has highlighted that there are a range of persuasive techniques that can meet this challenge. as regards the prevention strategy, the moral persuasion approach i.e. persuading commercial organisations to publicly commit to corporate good governance through putting in place codes of ethics and compliance programmes, may seem of limited value. as ti points out, at worst such programmes are “mere window dressing” exercises. certainly, in the light of its diverse foreign bribery activities, alstom’s claim to be an “ethical company” has a somewhat hollow ring. 88 ey global fraud survey (n 68) 25. combating foreign bribery 136 yet today, the development of corporate codes of conduct and compliance programmes goes beyond moral persuasion and mere window dressing. there is now real pressure on all commercial organisations to take steps to maintain a “rigorous anti-corruption compliance programme that includes policies and procedures designed to detect and deter violations” of anti-bribery laws. the “gentle persuasion” standard-setting initiatives of the ungc, the oecd and ti provide an excellent basis for the development and maintenance of such programmes. this will be enhanced if the communications on progress required under the ungc are used to encourage, and help monitor transparency on, progress in this regard. with the moral persuasion and gentle persuasion strategies now being reinforced by persuasive threats, the hope is that commercial organisations will indeed take the necessary steps to prevent the bribery of foreign public officials in their business activities. as regards the “reveal all” strategy, a combination of forceful persuasion and persuasive threats led to alstom eventually disclosing its global bribery activities. however the impact of the forceful persuasion strategy remains limited by the reluctance of many parties to the oecd anti-bribery convention to prosecute cases of alleged foreign bribery. the failure of france to take any action against alstom, a company that has its headquarters in that country, epitomises the point. the active enforcement of the convention by all parties is now essential and this will not only act as an important deterrent but should also facilitate the development of more effective multi-jurisdictional coordination in combating foreign bribery, including encouraging and facilitating a “global settlement” approach.89 yet as the alstom case highlights, it is the threat of a conviction for a foreign bribery offence and subsequent debarment that played the key role in persuading it to reveal all and to agree settlements with the world bank and the us doj. in the us context, the yates memo now becomes highly significant. by making eligibility for a settlement dependent upon the commercial organisation providing the doj with “all the relevant facts about the individuals involved in corporate misconduct”, it enhances the prospect of making accountable those responsible for the authorising 89 it is noteworthy that on november 8 2016, france adopted anti-corruption legislation (known as “sapin 2”) which allows magistrates to enter into deferred prosecution agreements with companies with the maximum fine being 30% of the company’s annual turnover. to ensure transparency, the agreement requires the approval of a judge at a public hearing: see <http://www.reuters.com/article/usfrance-corruption-iduskbn1332g1?feedtype=rss&feedname=worldnews> accessed 9 november 2016. the denning law journal 137 and/or undertaking the illegal activity as well as those in the highest echelons of the organisation who turn a “blind eye” to corporate wrongdoing. it also acts as an important deterrent on any future illegal activity and provides a further incentive for senior officials of commercial organisations to ensure that their compliance programmes are effectively implemented. this approach should be adopted elsewhere. the yates memo has drawn some criticism. one commentator describes it as “rhetoric because the reality is that few doj corporate enforcement actions result in any related charges against company employees.90 however only time will tell whether this is the case. what is important is that the policy is in place. as yates herself has noted “our goal is to get to the bottom of who did what and if there are culpable individuals, hold them accountable… our goal is to uncover the truth”.91 these are exciting times. just a few years ago, the idea that commercial organisations, including even the largest multinationals, could be persuaded to take effective steps to prevent foreign bribery in their operations, whether they wanted to or not, would have seemed highly unlikely. this article has demonstrated that through the art of persuasion, corporate conduct can be changed for the better. this is still work in progress92 but hopefully it will contribute to the enhancement of good governance and transparent management in the energy sector 90 see fcpa professor blog <http://fcpaprofessor.com/the-yates-memo/> accessed 1 september 2016. it is further asserted in the blog that between “20082014, 75% of doj corporate enforcement actions have not (at least yet) resulted in any doj charges against company employees” (emphasis in the original). 91 speech given by sally q yates at the new york city bar association white collar crime conference, (may 17 2016) 5. 92 for example, the results of the ey 14th global fraud survey show that “a significant minority of global executives [are] willing to justify unethical conduct” with the report concluding that “individuals, including some senior executives entrusted with the guardianship of their firms, cannot be assumed to act with integrity if the end might seem to justify the means”: see (n 69) 20 and 41. administration ofjustice in malaysia y a. a. tan sri dato' abdul hamid omar* in order to appreciate the present judicial system and the administration of justice in malaysia, one needs to trace the origins and history of the malaysian bench. as will be seen, the growth and development of the malaysian judiciary were directly consequent on the political changes which took place in the country. the historical judicial development reflective of the political changes will therefore constitute the first half of the discussion. the second half will be devoted to a discussion of the present day system and hierarchy of courts with their powers and jurisdiction. this paper will conclude with an attempt to postulate future changes in the malaysian judiciary consequent upon the creation of the supreme court of malaysia. the history of the malaysian judicial system is closely interrelated with the history of british intervention in the malay peninsula. it is proposed to divide our study of the malaysian judicial history into four distinct periods, viz.: (1) british colonial rule: 1786-1941 (pre-war period); (2)japanese occupation (world war ii): 1942-1945; (3) british colonial rule: 1946-1956 (post-war period); and (4) independence and thereafter: 1957-1980s. a. historical judicial development 1. british colonial rule: 1786-1941 varying degrees of british involvement can be seen in the differing governmental structures in malaya; the straits settlements, the federated malay states and the unfederated malay states constituted three stages in british intervention. whilst the first were settled colonies, the latter two were mere protectorates. (a) straits settlements (s.s.) the first stage in british intervention began when the east india company, which had created outposts in penang (1786), malacca (1824) and singapore (1819), transferred them to the british crown. collectively known as the straits settlements, they came directly under the responsibility of the british colonial office in 1876. ·chief justice, malaya 1 the denning law journal the judicial system obtaining in the crown colony first evolvedwhen the first charter of justice of 1807 established courts of judicature in penang. by the second charter of justice of 1826, united courts of judicature were established for the three settlements of penang, malacca and singapore. these charters of justice were significant for they heralded the reception of english common law and equity into the malay peninsula. as stated by malkin r in in the goods of abdullah: "i refer to the case of rodyk v. williamson . .. in which i expressed my opinion that i was bound by the uniform course of authority to hold that the introduction of the king's charter into these settlements had introduced the existing law of england, except in some cases where it was modified by express provisions, and had abrogated any law previously existing."l it is important to note that the court of judicature was to administer in the straits settlements the principles of common law and equity which were then in force in england "as far as local circumstances will admit". in yeap cheah neo v. ong cheng neo, sir montague smith on behalf of the juducial committee of the privy council said: "in applying this general principle [the applicability of english law to the straits settlements], it has been held that statutes relating to matters and exigencies peculiar to the local condition of england, and which are not adapted to the circumstances of a colony, do not become a part of its law, although the general law of england may be introduced into it."z a distinct feature of early-days british administration of justice was the lack of separation between the judiciary and the executive. prior to 1867, the courts consisted not only of professional judges called "recorders", but also of lay judges. the latter comprised the governor who was the chief executive authority 1. (1835) 2 ky. ecc. 8 at pp. 9-10 2. (1875) l.r. 6 p.e. 387, 394 the application of united kingdom common law, rules of equity and certain statutes in peninsula malaysia is ~ow governed by section 3 of the civil law act, 1956 (revised 1972). for easy reference, the provisions are spelt out: section 3 (i) reads: "save so far as other provision has been made or may hereafter be made by any written law in force in malaysia the court shall (a) in west malaysia or any part thereof apply the common law of england and the rules of equity as administered in england on the 7th day of april, 1956; (b) in sabah, apply the common law of england and the rules of equity, together with statutes of general application, as administered or in force in england on the 1st day of december, 1951; (c) in sarawak, apply the common law of england and the rules of equity, together with statutes of general application, as administered or in force in england on the 12th day of december 1949, subject however to subsection (3) (ii): provided always that the said common law, rules of equity and statutes of general application shall be applied so far only as the circumstances of the states of malaysia and their respective inhabitants permit and subject to such qualifications as local circumstances render necessary." 2 administration of justice in malaysia of the state and members of the executive council. it was only when the straits settlements came under the control of the british colonial office that the judiciary became separate from the executive. in 1868, when the supreme court of the straits settlements was established, the "recorders" of the former courts of judicature became the sole judges. in 1873, the supreme court was reorganized under four judges: the chief justice, judge of penang, senior puisne judge and junior puisne judge. a criminal court known as the court of quarter sessions was also established and was presided over in singapore by the senior puisne judge, and in penang by the junior puisne judge. a court of appeal was also established. this was the position in the straits settlements until the invasion by japan of british malaya. (b) federated malay states (f.m.s.) the f.m.s. which comprised perak, selangor, negri sembilan and pahang came into being in 1895. between 1874 and 1887, each of the four states came under british protection when their rulers, in exchange for british recognition of their claim as rulers of the respective malay states, agreed to accept british residents whose advice had to be asked and acted upon on all questions other than those touching malay religion and custom. prior to 1895, each of the states had its own state judiciary for the administration of justice. the then existing judicial institutions consisted of the magistrate's courts, the court of senior magistrate and lastly, the final court of appeal, the sultan-in-council. however, the actual decision maker in the state council was the british resident. there was no separation of the judiciary from the executive. when the federation was formed in 1895, a common judiciary was introduced when a common form of legislation was passed in each of the four states to establish a common court of appeal called the court of the judicial commissioner. it was the highest court in the f.m.s. however, in 1905, it was superseded by the supreme court of the f.m.s. the supreme court consisted of a court of appeal and a court of the judicial coihmissioner. whilst the former replaced the 1895 court of judicial commissioner, the latter replaced the senior magistrate's court. strangely enough, this supreme court was not a federal court and was established in each state by state legislation and had jurisdiction only as regards the state concerned. however, it 1918, a federal supreme court was created for the f.m.s. by federal legislation. the f.m.s. remained in existence until the japanese invasion in december 1941. (c) the unfederated malay states (u.f.m.s.) the u.f.m.s. consisted of kedah, perlis, kelantan, trengganu and johore. the first four states came under british protection beginning from 1909 when the siamese transferred to the british their rights of suzerainty, protection, administration and control over the states. a british adviser was appointed for 3 the denning law journal each state under a series of agreements. johore accepted a british adviser in 1914. like that of the f.m.s. advice of the british advisers had to be asked and acted upon by the rulers of the u.f.m.s. on all questions other than those touching malay religion and custom. with respect to the administration of justice, each state had its own state judiciary. each also had its own supreme court although the constitution of the courts varied from state to state. the u.f.m.s. remained outside the federation until the end of world war ii. 2. japanese occupation (world war ii): 1942-1945 the japanese occupation of british malaya commenced in december, 1941. nothing much is known either of the judicial system or the administration of justice in the malay peninsula during this period. however, it appears that there were two courts functioning during that time; the military or special courts and the civil courts. the special court was set up to try civilians charged with offences under the japanese maintenance of public peace and order law. it was presided by a japanese judge. with respect to the civil courts, their jurisdiction was confined to civiland criminal cases only. in this respect, it appears that the pre-existing laws of the s.s., the f.m.s. and the u.f.m.s. continued in force until changed or repealed by the japanese military administration. the civil courts were presided by local judicial officers. in 1943, pursuant to the judicial organization ordinance, a supreme court, high court, district and magistrates' courts, penghulu's court and kathis' courts were established during the japanese occupation. speaking of the japanese occupation, an interesting question has emerged and that is whether the occupation was, in law, an occupation or conquest. the japanese were in occupation of malaya from the middle of february, 1942 to september, 1945. nevertheless, the question remains whether the occupation in fact was a mere occupation or was it a conquest of malaya by the japanese? i do not propose to provide the answer but would refer the readers' attention to two articles appearing in volume 12 of the 1946 malayan law journal. 3 3. british colonial rule: (1946-1956) (post-war period) (a) british military administration (b.m.a.) the surrender of the japanese forces in 1945 saw, once again, the reinstatement of british colonial rule in the malay peninsula. from september, 1945 to april, 1946, the peninsula was placed under the british military administration. during that period, the b.m.a. set up a system of courts called the superior court 3. see, "powers and duties of an enemy occupant", (1946) 12 m.l.]. i; "british law and police officers during japanese occupation", (1946) 12m.l.j. lxv-\xix; "occupation or conquest?", (1946) 12m.l}. xxvii. 4 administration of justice in malaysia 03..m.a.)and the district courts (b.m.a.). the administration of justice during this period was in the hands of british military officers. as can be seen, the british military administration was a transitional phase prior to the introduction of civilian rule. towards this end, th,~british military courts played a crucial role in converting chaos, which was prevalent during the japanese occupation, to orderly government. the jurisdiction of the courts and the objective of their creation may be seen in in re lam wmg chak.4 in that case, the accused was charged on four charges of having voluntarily caused hurt for the purpose of e},.1ortingconfessions ill march 1942, being offences under section 330 of the penal code (f..m.s.). at the hearing of me case, a preliminary objection was raised over the jurisdiction of the lpoh superior court (b..m.a.)to take cognizance of offences alleged to have bl~ committed in malaya during the japanese occupation. in support of the above objection, counsel for the accused pointed out that proclamation no. 3 which established military courts and conferred on them jurisdiction "over persons charged with offences committed either before or after the establishment of such control",s was promulgated by th.e general officer commanding ;\1ilitary forces ~\1alayapursuant to proclamation no.1. the latter, promulgated by lord !\1ountbatten, l~esupreme alii.edcommander south east asia command, provided that the .malaypenirrsula (llj.estraits settlements and the malay states) were placed under military administration "by reason of military necessity and for the suppression of disorder and the maintenance of public safety.,,6it was argued that in so far as proclamation no. i did not expressly provide for any retrospective effect of subsequent proclamation made under it, proclamation no.3 was therefore ultra vires and the ipoh superior court was not competent to try the accused. this submission was rejected by the president, lt.-col. j. g. adams, who held that the immediate effect of proclamation no. 1 was to restore the law as it was before the japanese occupied malaya in 1942 such as those of the s.s., the f.m.s. and the u.f.;\1.s. in his view time never ran against the crown, and the courts, being set up by reason of military necessity for the administration of those laws that existed before the existence of the japanese occupation, should have exactly the same jurisdiction as the criminal courts then in existence had before the japanese occupation. he summed up by sa)~ngthat the courts were set up to administer the law that existed prior to the japanese occupation and therefore had jurisdiction to try all offences against the penal code of the f.m.s. whenever they were committed. 4. ipoh criminal trial no. 61 of! 946. see "jurisdiction of military courts", (1946) 1zm.l.j. xxxii. 5 ibid. xxxiii. 6 ibid. 5 the denning law journal (b) the malayan union the b.m.a. was a brief interlude and was replaced by the british malayan union in 1946. the establishment of the malayan union which comprised the f.m.s., u.f.m.s. and the s.s. witnessed the unification of the three separate judicial systems mentioned earlier. under section 85 of the malayan union order in council, 1946, the malayan union ordinance 3/46 was enacted whereby a supreme court (a court of record) was established, comprising the high court having jurisdiction throughout the malay peninsula with power to exercise original and appellate civil and criminal jurisdiction, and the court of appeal with power to exercise appellate civil and criminal jurisdiction.7 the ordinance also dealt with the establishment, constitution and powers of subordinate civil and criminal courts. the lower courts consisted of the district courts and magistrates' courts. authority was vested in the governor to constitute by order in each state and settlement so many courts as he thought fit and to assign local limits of jurisdiction. where he deemed necessary, the governor may extend the jurisdiction beyond the boundary of such state or settlement. (c) federation of malaya (1948) the malayan union proved unpopular and amidst intense malay opposition was superseded by the federation of malaya on 1st february, 1948. under the federation of malaya agreement, 1948 each state and settlement was to retain its own individuality but all were to be united under a strong central government. the demise of the malayan union saw the restructuring of the courts particularly at the subordinate level. the courts ordinance 1948 established, in place of the malayan union subordinate courts, a new structure of inferior courts comprising the sessions courts, magistrates' courts and penghulus' courts. this structure is continued up to the present day. with respect to the superior courts, the federation of malaya agreement continued the pre-existing structure, i.e. the malayan union supreme court which consisted of the court of appeal and a high court under a chief justice. the 1948 agreement further provided that the chief justice and judges of the supreme court of the malayan union were to be the first chief justice and judges of the supreme court of the federation of malaya. 4. independence federal constitution 1957 on 31st august, 1957 the federation of malaya became an independent sovereign country. however, the supreme court of pre-independence was continued. the supreme court therefore still consisted of a high court and a court of appeal. the establishment, jurisdiction and powers of all courts, 7 it should be noted that by 1946, singapore had become a separate crown colony and was given a separate supreme court. however, in practice, judges of the supreme court, malayan union, could preside as judges of the supreme court, singapore, and vice versa. 6 · administration of justice in malaysia excluding muslim courts, are matters within the legislative powers of the federation. article 121 of the federal constitutions provided that "the judicial power of the federation shall be vested in a supreme court and such inferior courts as may be provided by federal law", and by article 122 (1),9 "the supreme court shall consist of a chief justice and other judges." the supreme court of independent malaya not only retained its previous powers but its jurisdiction was considerably enlarged. under the federation of malaya agreement, 1948, the court of justice was not competent to question the validity of the courts ordinancelo of that year and no court of justice, including the supreme court itself, had any power to interpret the federation agreement. i i as can be seen the function to interpret was vested in an ad hoc interpretation tribunal. in contrast, under the 1957 constitution the supreme court was not only given the original, appellate and revisional jurisdiction as may be provided by federal law but also, to the exclusion of any other court, the jurisdiction to determine any dispute between states or even between the federation and any state.12 in this connection, however, it is to be observed that certain disputes relating to land and those arising under articles 83 to 87 had to be referred to the land tribunal. the supreme court's special jurisdiction to interpret the constitution was provided by article 129 which read: "without prejudice to any appellate or revisional jurisdiction of the supreme court, where in any proceedings before another court a question arises as to the effect of any provision of this constitution, the supreme court may, on the application of either party to the proceedings, determine that question and either dispose of the case or remit it to the other court to be disposed of in accordance with the determination.,,13 its advisory jurisdiction as provided by article 130 reads: "the yang di-pertuan agong may refer to the federal court for its opinion any question as to the effect of any provision of this constitution which has arisen or appears to him likely to arise, and the federal court shall pronounce in open court its opinion on any question so referred to it." another major change introduced by the federal constitution is the appointment of the chief justice and judges of the supreme court. under the federation of malaya agreement, 1948, the appointment of judges was made by the high commissioner for and on behalf of his majesty and the ruler,14 whereas under 8 the federal constitution as at 31st august, 1957. 9 ibid. 10. federation of malaya agreement 1948, clause 66. 11. federation of malaya agreement 1948, clause 153. 12. federal constitution 1957, articles 128 (1) & 128 (2) 13. article 129 has since been repealed and the power to interpret the constitution is now enshrined in article 128 of the federal constitution. 14. federation of malaya agreement 1948, clause 77 (4). 7 the denning law journal the 1957 constitution the chief justice and other judges of the supreme coun were appointed by his majesty the yang di-pertuan agong.15 (a) tenure of office and independence of the judiciary the reid commission report contained a recommendation on the tenure of office of a judge. basically the object was to ensure the independence of the judges. this recommendation was to the effect that: "since under the new constitution the powers of her majesty's government and the high commissioner will disappear, it has been necessary to insert the provisions) usual in democratic constitutions, for the maintenance of the independence of the supreme court. under our proposals (article 116) a judge cannot be removed except by an order of the yang dipertuan agong in pursuance of an address passed by a majority of two-thirds of each house of parliament; and before any such motion is moved there must be proved misconduct or infirmity of mind or body. subject to this provision, the age of retirement has been at 65." with a view to ensuring further the independence of the courts, a provision was also made for the remuneration of judges of the supreme court to be charged to the consolidated fund.16 there was also enshrined in the constitution a provision to the effect that the remuneration and other terms of office (including pension rights) of the judges of the supreme court should not be altered to his ~!sadvantage after his appointment.17 one other provision which is significant is contained in article 127 which provides that: "the conduct of a judge of the federal court or high court shall not be discussed in either house of parliament except on a substantive motion of which notice has been given by not less than one quarter of the total numbers of members of that house, and shall not be discussed in the legislative assembly of any state." as for the subordinate courts their position remained the same and their powers are derived from federal law enacted by virtue of article 121 of the federal constitution. 5. m~s;a (1963) the subsequent developments in our judicial system came about in 1963 when malaysia was formed on t6th september, 1963 with sabah, sarawak and singapore as the three new component states of t.he federation of malaysia. 15. fedenl constitution , ;ls"', l'~lc!c :233. 16. fedenl constitution! 957, a.rdclc 1;~5.;bj. 17. feden1 constitution }957, .'\l1icic ~25 (7;. 8 administration of justice in malaysia consequent upon the formation of malaysia, part ix of the constitution was amended to effect the restructuring of the courts primarily at the superior level. the amendment made provision for the judicial power of the federation to be vested in three high courts of co-ordinate jurisdiction and status namely the high court of malaya, the high court borneo states and the high court singapore. the amendment also made provision for the establishment of a federal court to consist of a president of the court to be styled lord president, the chief justice of the high courts and other federal court judges.is the federal court was also vested with original, appellate and advisory jurisdiction. article 121 of the federal constitution provides: "(2) the following jurisdiction shall be vested in a court which shall be known as the federal court and shall have its principal registry in kuala lumpur, that is to say, (a) exclusive jurisdiction to determine appeals from decisions of a high court or a judge thereof (except decisions of a high court given by a registrar or other officer of the court and appealable under the federal law to a judge of the court); and (b) such original or consultative jurisdiction as is specified in articles 128 and 130." its original jurisdiction as set out in article 128 reads: "(1) the federal court shall, to the exclusion of any other court, have jurisdiction to determine (a) any question whether a law made by parliament or by the legislature of a state is invalid on the ground that it makes provision with respect to a matter with respect to which parliament or, as the case may be, the legislature of the state has no power to make laws; and (b) disputes on any other question between states or between the federation and any other state. (2) without prejudice to any appellate jurisdiction of the federal court, where in any proceedings before another court a question arises as to the effect of any provision of this constitution, the federal court shall have jurisdiction (subject to any rules of court regulating the exercise of that jurisdiction) to determine the question and remit the case to the other court to be disposed of in accordance with the determination. (3) the jurisdiction of the federal court to determine appeals from a high court or a judge thereof shall be such as may be provided by federal law." 18. federal constitution 1957, article 122. 9 the denning law journal article 130 sets out the advisory jurisdiction of the federal court the provisions of which are similar to article 130 of the federal constitution, 1957. they remain until the present day. as may be observed, from malaysia day, 16th september, 1963, the supreme court was replaced and was substituted by a federal court. but the federal court, unlike the supreme court, was not a court of record and no longer consisted of a court of appeal and a high court. it stood on its own in the structure of courts. it is also to be observed that the word "power" is used in article 121 to describe the authority vested in the three high courts of co-ordinate jurisdiction and status. as for the subordinate courts, there was, however, no change in their structure. on 9th august, 1965, singapore broke away from malaysia leaving therefore the two existing high courts, namely that of borneo and peninsula malaya, till today. 6. east malaysia an account of the judicial system and the administration of justice in malaysia is, it is submitted, incomplete without mentioning briefly the position in east malaysia. north borneo (now sabah) and sarawak became british protected states as early as 1888 by virtue of an agreement made between the local rulers and the british north borneo (chartered) company. like their counterparts in the malay peninsula, the company was to administer justice with due regard to native customs and laws and not to interfere with the religion of the inhabitants. with respect to the administration of justice, north borneo was divided into sessional and magisterial divisions. the former was executively administered by the british residents, and the latter by district officers. the chief court was comprised of the governor, the judicial commissioner and other judges temporarily appointed by the governor. as for sarawak, its momentous legal history began with the proclamation of james brook as the first rajah and governor of sarawak. his main task was to establish law and order in the country. in 1870 onwards he established a number of courts comprising the debtor's courts, chinese courts, courts of requests, bankruptcy courts, native courts and supreme courts. the present day high court in east malaysia can trace its origin from this early set up. in 1922, the courts were reorganized by the courts order, 1922. in that year, five courts were constituted viz., the supreme court which exercised original and appellate jurisdiction, the resident's courts, district courts, magistrates' courts and native courts. the administration of justice continued to be carried out by these courts until 1946 when sarawak (so also sabah) were ceded to the british crown. in 19~7, two circuit courts were constituted which for the first time were presided by legally qualified people. in 1951, a major change took place in the borneo states. by the sarawak, north 10 administration of justice in malaysia borneo and brunei (courts) order in council, 1951, a combined judiciary was established for the three states in borneo. the order in council established one superior court of record styled the supreme court of sarawak, north borneo and brunei consisting of the high court of sarawak, north borneo and brunei and the court of appeal of sarawak, north borneo and brunei. however, this combined judiciary disappeared when north borneo (sabah) and sarawak joined the federation of malaya to form malaysia in 1963. the jurisdiction of the high court in sarawak and sabah was retained whilst the appellate jurisdiction of the court of appeal was assumed by the federal court of malaysia. with effect from istjanuary, 1985 this appellate jurisdiction is now vested in the supreme court of malaysia. 7. appeals to the privy council it is of interest to note that the pre-independence right of appeal to the privy council commenced as early as the establishment of the straits settlements, the federated malay states and the unfederated malay states. penang, for instance, acquired that right in 1807 by virtue of the first charter of justice. malacca and singapore were next conferred such right in 1827 by the second charter of justice.19 the f.m.s. acquired such a right when, in 1906, the f.m.s. appeals order in council was passed which provided for appeals from the court of appeal of the f.m.s. to be made to the privy council. as for the u.f.m.s., no such right existed as the same was not provided for in their respective courts enactments. johore, however, acquired such a right when provision for appeals to the privy council was incorporated in her courts enactment passed in 1920. however, since each of the component parts of the malay peninsula had its own supreme court from whose decision an appeal would lie to the privy council, there was no uniformity in legislation governing such a right. uniformity was only achieved in 1948 when clause 83 of the federation of malaya agreement provided specifically for appeals to be made to his majesty in council from the malayan supreme court. on independence, 31st august, 1957, the right to appeal from the supreme court to the privy council was retained and embodied in article 131 of the malayan federal constitution. when malaysia was formed on 16th september, 1963, the malaysian federal constitution by article 131 continued to preserve that right. at the same time, the malaysia act, 1963, substituted the words 'federal court' for the words 'supreme court'. article 131 neatly circumvented the anomaly of appeals coming from an independent country with its own sovereign to another country with a separate sovereign by providing that in law the appeals were addressed not direct to the privy council but to his majesty the yang di-pertuan agong who referred them for advice to the privy council and 19. the first reported privy council appeal from the straits settlements was the case of yeap cheah neo v. ong cheng neo (1875) l.r. 6 p.c. 381. 11 the denning law journal who, in tum, advised his majesty accordingly. pursuant to clause (1) of article 131, the courts ofjudicature act 7 of 1964 was enacted to make provisions for the reference of appeals to the privy council. it is undoubtedly clear that the malaysian parliament may at any time restrict or abolish altogether appeals to the privy council. such a move was successfully initiated in october, 1975 when p.u.(a) 320/75 made the decision of the federal court in criminal cases tried under the essential (security cases) regulations, 1975 non-appealable to the privy council. however, a more serious curtailment was seen in january, 1978 when appeals to the privy council in criminal and constitutional matters were abolished altogether by amendments made to s.74 of act 7 of 1964. malaysia ultimately witnessed the final abolition of appeals to the privy council when act a566/83 (p.u.(b) 589/84) repealed article 131 of the malaysian federal constitution with effect from 1st january, 1985. this significant decision not only saw the demise of the federal court but also the birth of the supreme court of malaysia which is now the final court of appeal in constitutional, civil and criminal matters. this historic event has thus made appeals to the privy council history in malaysia. a material feature of the newly-created supreme court which needs to be mentioned is that, unlike the supreme court which existed under the 1948 federation of malaya agreement and the 1957 malayan federal constitution, the supreme court of 1st january, 1985 is not a court of record. it does not consist of a court of appeal and a high court but is solely an entity standing on its own. b. the malaysian judicial system powers and jurisdiction as may be discerned from the aforesaid discussion, the malaysian judiciary, except for islamic courts, is entirely a federal organization. at the apex of the organization is the supreme court which is now the highest court and final appellate body in the country. next in status and jurisdiction comes the high court to be followed by the subordinate courts which, in descending order, comprise the sessions court and the magistrate's court. the federal constitution and the courts of judicature act, 1964 (revised 1972), make provisions for the constitution, powers and jurisdiction of the supreme and high courts whilst the powers and jurisdiction of the subordinate courts are spelt out in the subordinate courts act, 1948. 1. superior courts before embarking on a discussion of the powers and jurisdiction of the supreme court and high courts, it is necessary to mention in brief the appointment of judges in general. by article 122b of the federal constitution, the lord president, the chief justices of the high court in malaya and borneo, the other judges of the supreme court and judges of the high court are all appointed by the yang di-pertuan agong, acting on the advice of the prime minister, after consulting the conference of rulers. 12 administration of justice in _'vl'\.laysi.\ the constitution stipulates that betore tendering hisadvice on the appointmenr of a judge other than the lord presidenr, the pnme minister shall consult the lord presidenr. before tendering his ad"ice as to the appoldtmenr of the chief justice of a high court, the prime minister shall consult the chief] ustices of the two high courts and, if the appointment is to the high court in borneo, he shall also consult the chief minister of sabah and sarawak. lastly, beton: tendering his advice on the appointment of a judge other than the lord president or a chief justice, the prime :'vlinister shall consult, if the appointment is to the supreme court. the two chief justices and, if the appointmenr is to one of the high courts, the chief justice of that court. (a) supreme court the supreme court wnsists ot the lord president, the chief justi~es of the high court in l\lalaya and borneo, and seven supreme court judges.20 if the interests of justi~e so require, the lord presidem may also nonunate a high court judge to sit as a judge of the supn:me coun. proceedings betore the coun are usually heard and disposed of by a pant:! ot three judges nominated by the lord presidenr.21 sometimes, in cenain special cases, it sits in a pand of rive. in the absence of the lord president the senior member af the court shall preside. the supreme coun is vested with original, appellate and advisory jurisdicnon. article 121 (2) of the federal constitutil)n provides that the supreme court shall have (a) exclusive jurisdicnon to determine appeals tram decisionsof a high coun or a judge thereof (except decisions of a high court gi"en by a registrar or other otficer of the court and appealable under kderallaw to a judge at the high court); (b) such origmal or consultative jurisdiction as is specified in articles 128 and 130; and (c) such other jurisdiction as may be conterred by or under federal law. with respect roits appellate jurisdiction, the supreme coun shall hear appeals in criminal matters from a decision of the high coun made in the exercise of its original criminal jurisdiction. 12 "vith respect (g the decisions of the high court made in ':he exercise of its appdlate crimiml ju~isjiction, the supreme coun shall only hear rderen~es on any question of law of public interest which has arisen in the .:ourse of the appeal trom the subordinate court and the determination of which by the high court has affected the event of the appeal.23 however, in civil matters, the supreme court has jurisdi~tion (0 hear and determine appeals from 20. f~derai constitution, .\rndt: 122 (11; st:t: .uso p.l· l.\; 11",1';182. 21. courts of]ujicature .\ct, 1964, 5.38 (hereafter reterred [0 as "the 1964 .-\d'). 22. the 1964 act, 5.50. 23. the 1964 .'\ct, :,.66. 13 the denning law journal any judgment or order of the high court whether made in the exercise of its original or appellate jurisdiction.24 the original and advisory jurisdiction of the supreme court as provided by articles 128 and 130 respectively, have earlier been spelt out and will not be repeated here. however, it must be pointed out that in the exercise of its original jurisdiction under article 128 (1) (b) in respect of a dispute between the states or between the federation and any state, the supreme court shall not pronounce any judgment other than a declaratory judgment.25 under article 128 (2), the supreme court also has jurisdiction to determine constitutional questions referred to it by the high court. an account of the supreme court necessitates also a brief mention of the functions and duties of the lord president. to a certain extent, they have already been stated in the opening paragraphs. as head of the supreme court, it is the lord president who determines the dates and places for sittings of the court. the supreme court not only sits regularly in kuala lumpur but also travels on circuit to the major state capitals. the lord president may from time to time give such directions with respect to business in the supreme court registry as he considers necessary.26 by virtue of his position, the lord president after consultation with the prime minister, can initiate the machinery for the removal of a judge of the supreme court from office on ground of misbehaviour or of inability from infirmity of body or mind or any other cause, properly to discharge the functions of his office. the lord president may make representations to the yang di-pertuan agongwho shall appoint a tribunal consisting of five judges to be presided by the lord president himself to report and make recommendations on the matter. pending the report, his majesty may on the recommendation of the prime minister after consulting the lord president, suspend a judge of the supreme court from the exercise of his functions.27 the lord president's duty and function may also be seen with reference to the judicial and legal service commission established under article 138 of the federal constitution. the commission's jurisdiction extends to all members of the judicial and legal service and it h~s the power to appoint, confirm, promote, transfer and discipline officers of the service. it is noteworthy that members of the commission who are either judges of the supreme or high courts are appointed by the yang di-pertuan agong on the recommendation of the lord president. the lord president is also the chairman of the rules committee established under section 17 of the courts of judicature act, 1964. 24. the 1964 act, s.67. 25. the 1964 act, s.46. 26. rules of the supreme court 1980, r.138. 27. article 125. 14 · administration of justice in malaysia (b) high court since 9th august, 1965, malaysia has had two high courts of co-ordinate jurisdiction and status; namely, the high court in malaya which has its principal registry in kuala lumpur, and the high court in borneo which has its principal registry in kuching, sarawak. each consists of a chief justice and so many judges of the high court as may be prescribed by article 122a of the federal constitution. proceedings before the high court are usually heard and disposed of by a judge sitting alone except in certain cases.28 for instance, when hearing land references, i.e. appeals in respect of compulsory acquisition of land, a high court judge sits with two assessors. likewise, he sits with two assessors when trying offences under the kidnapping act, 1961, and with a jury when trying capital cases. the powers and jurisdiction of the high court are rather extensive. subject to the original, appellate and advisory jurisdiction of the supreme court, the judicial power of the federation is vested in the two high courts which have equal and co-ordinate jurisdiction, and also in the subordinate courts as may be provided by federal law.z9 the high court is vested with original and appellate jurisdiction in criminal and civil matters. 30 its original jurisdiction with respect to both is .unlimited as cases outside the jurisdiction of the subordinate courts are brought before it. in addition to its appellate jurisdiction, the high court also exercises powers of revision in respect of criminal proceedings in the subordinate courts,31 and may call for records of civil proceedings so as to satisfy itself of the correctness, legality or propriety of any decisions recorded or passed by the subordinate courts.32 the high court has general supervisory and revisionary jurisdiction over all subordinate courts.33 as mentioned earlier, appeals against the decisions of the high court in criminal matters made in the exercise of its original jurisdiction, and in civil matters made in the exercise of both its original and appellate jurisdiction, lie to the supreme court. whilst , no civil appeal from the subordinate courts shall lie to the high court where the amount in dispute or value of the subject-matter is five thousand dollars ($5,000/-) or less except on a question of law,34 no civil appeal from the high court shall lie to the supreme court when the amount or value of the subject-matter at the trial is less than one hundred thousand dollars ($100,000/-), except with leave of the supreme court or a judge of the high court.35 28. the 1964 act, s.18. 29. federal constitution, article 121 (1). 30. the 1964 act, ss.22, 23, 26 & 27. 31. the 1964 act, s.31. 32. the 1964 act, s.32. 33. the 1964 act, s.35; s.325 criminal procedure code (f.m.s. cap.6). 34. the 1964 act, s.28 (1). 35. the 1964 act, s.68 (1) (a). for the old monetary limit often thousand dollars ($10,000/-) there was substituted one hundred thousand dollars ($100,000/-) by act a606 with effect from 1st january, 1985. the amendment was introduced consequent upon the creation of the supreme court of malaysia. 15 as is ob,;ous, an account of the high court is incomplete without some mention of the functions and duties of the two chief justices. by virtue of article 122a of the federal constitution. the chief justice, malaya, and the chief justice, borneo, are the respective heads of the high court in malaya and the high court in borneo. furthermore, by virtue of the high court's general supervisory and revisionary jurisdiction over all subordinate courts, it follows that the chief justices are also heads of the subordinate courts in their respective territories. as head of the high court, it is the chief justice who determines the dates and places for sittings of the court.~6 directions as to the distribution of business among judges of the high court, whether of a particular or general nature, are also given by the chief justice.n the chief justice may also issue directions with respect to the distribution of business in the various departments of the high court registry.38 with respect to the subordinate courts, it is also the chief justice who is empowered to determine the places where sessions~o and magistrates' courts40 shall ordinarily be held. perhaps the powers of the chief justice may be best appreciated in the area of appointments and/or dismissal of judges. and that of officers in the judicial and legal service. as previously noted, the prime minister shall, before tt'ndering his advice on the appointment of a judge to one of the high courts, consult the chief justice of that court. likewise, a judge of a high court rna)' bt' suspended by the yang di-pertuan agong from the exercise of his functions onj), after consultation with the chief justice of that court. as for judicial officers. presidents of sessions court and first class magistrates for the federal territory are appointed by the yang di-pertuan agong on the recommendation of the chiefjustice.41 first class magistrates for states other than the federal territory are appointed by the state authority on the chief justice's recommendation.42 on the question of dismissal or termination of service of these officers, the matter shall be referred to the judicial and legal service commission of which the two chief justices are members. it is apparent from the above that the chief justice has administrative jurisdiction over judicial officers. the nature of the jurisdiction was described by the lord president in cheak yoke thong v. fublic prosecutor as follows: "the magistrate is not appointed by the attorney-general but appointed by the ruler of the state (or in the case of federal territory by yang di-pertuan 36. the ]964 act, 5.]9. 37. the ]964 act, 5.20. 38. rules of the high court, 1980, o.60r.1. 39. subordinate courts act, ]948; s.59 (hereafter referred to as "the] 948 act"). 40. the 1948 act, s.76 41. the ]948 act, s.59. 42. the] 948 act, s.78. see also 5.106 which empowers the chief justice with the concurrence of the yang di-pertuan agong to appoint so many subordinate officiers (e.g. process-servers) as the chief justice deems necessary for the due administration of justice. 16 administration of justice in malaysia agong) on the advice of the chief justice to whom the magistrate is responsible and under whose administrative control he is placed. (see sections 78 and 79 of the subordinate court act). his transfer from one judicial post to another judicial post is completely under the authority of the chief justice, and as regards his transfer from a judicial post to a legal post under the aegis of the attorney-general, this is a matter of consultation and agreement between the chief justice and the attorney-general. similarly, as regards his promotion and advancement in the service, the confidential report on the magistrate for this purpose is written by ajudge of the state where the magistrate is currently or previously posted and this report is subject to the comments or recommendations by the chief justice for the ultimate consideration of the judicial and legal service commission.,,43 the chief justices, as earlier stated, are, by virtue of their office, members of the supreme court. the chief justice of the high court in malaya, by virtue of his seniority in the supreme court, i.e. "having precedence next after the lord president", is vested with the powers and shall perform the functions of the lord president whenever the latter, during any period of time, is unable to perform his duties owing to illness or absence from malaysia.44 in this instance, the chief justice, malaya shall be the acting lord president. it should be mentioned also that the chief justices are empowered under the legal profession act, 1976 to suspend an advocate and solicitor from practice, and to appoint, on the application of the bar council, a disciplinary committee to conduct formal inquiry into any complaint made against an advocate and solicitor.45 like the lord president, the chief justices are also members of the rules committee and it is pertinenr to note that no rules shall be made relating to any high court without the consent thereto of the chief justice of that high court. 2. lnftrior or subordinate courts the subordinate courts for the administration of civil and criminal law as established by the subordinate courts act, 1948 comprise the sessions and magistrates' courts. in west malaysia, the penghulu's court is also an inferior court but will not be discussed here as it hardly ever tries cases owing to its minimal jurisdiction. (a) sessions court a sessions court consists of a president who is legally qualified and a member of the judicial and legal service of the federation. it hears and determines any civil or criminal cause or matter arising within the local limits of its jurisdiction. 43. (1984) 2 m.l.j. 119 at p.m. 44. the federal constitution, article 13ia. see also the 1964 act, s.9 (i). 45. the legal profession act, 1976, ss.88a and 99. 17 the denning law journal in criminal matters, the sessions court has jurisdiction to try all offences other than those punishable with death and may pass any sentence allowed by law other than the sentence of death.46 in civil matters, subject to certain exceptions, it has jurisdiction to try civil suits where the amount or value of the subject-matter does not exceed twenty-five thousand dollars ($25,000/-).47 appeals from the criminal and civil decisions of the sessions court lie to the high court. it is of interest to note that the president of a sessions court may call for the civil records of a magistrate's court within its local limits of jurisdiction for the purpose of satisfyinghimself as to the correctness, legality or propriety of any decision recorded or passed, and as to the regularity of any proceedings of that court. however, since the president does not have any revisionary or supervisory jurisdiction and therefore cannot interfere with the decisions so recorded, in the event he considers them illegal or improper, he shall forward the records with his remarks if any to the high court.48 as stated earlier, only the high court has general supervisory and revisionary jurisdiction over all subordinate courts. (b) magistrates courts a magistrate's court consists of a magistrate sitting alone. there are two classes of magistrates whose jurisdiction differs: first class magistrate and second class magistrate. the first is often a legally qualified person appointed by the yang di-pertuan agong or the state authority on the recommendation of the chief justice. the second is usually an administrative officer who performs magisterial functions and is appointed by the yang di-pertuan agong or the state authority. a magistrate's court has jurisdiction to hear and determine any civil or criminal matter arising within the local limits of its assigned jurisdiction. briefly, in criminal matters, a first class magistrate has jurisdiction to try offences for which the maximum term of imprisonment does not exceed ten (10) years' imprisonment or which are punishable with fine only.49he may, however, pass any sentence allowed by law not exceeding (a) five (5) years' imprisonment; (b) a fine of ten thougsand ringgit ($10,000/-); (c) whipping up to twelve (12) strokes; or (d) any combination of the above sentences. the criminal jurisdiction of a second class magistrate on the other hand is very much reduced; a second class magistrate has jurisdiction to try offences for which the maximum term of imprisonment does not exceed twelve (12) months' imprisonment or which are punishable with fine only.50 in west malaysia, he may pass any sentence allowed by law not exceeding 46. the 1948 act, s5.63 & 64. 47. the 1948 act, s.65. 48. the 1948 act, s.54. 49. the 1948 act, s.85. so. the 1948 act, s.88. 18 administration of justice in malaysia (a) three (3) months' imprisonment; (b) a fine of two hundred and fifty ringgit ($2501-); or (c) any combination of the above, and in sabah and sarawak, he may pass any sentence allowed by law not exceeding (a) six (6) months' imprisonment; (b) a fine of one thousand ringgit ($1,000/-); or (c) any combination of the aforementioned. with respect to civil matters, a first class magistrate may try suits where the amount in dispute or value of the subject-matter does not exceed ten thousand ringgit ($10,000/-). a second class magistrate on the other hand may try civil suits where the plaintiff seeks to recover a debt or liquidated demand in money not exceeding two hundred and fifty ringgit ($250/-) in west malaysia and five hundred ringgit ($500/-) in sabah and sarawak. appeals from the decisions of a magistrate in criminal and civilmatters lie to the high court. c. is there a need for reform? the creation of the supreme court brought about a drastic amendment to section 68 of the courts of judicature act, 1964.51 the section now provides that no appeal shall be brought to the supreme court when the amount or value of the subject-matter at the trial is less than one hundred thousand dollars ($100,000/-), except with the leave of the supreme court or a judge of the high court. the old monetary limit was ten thousand dollars ($10,0001-). one may venture to ask what is the direct effect of the said amendment? in my view, this drastic amendment does not appear to be satisfactory for it deprives a litigant of his automatic right to appeal to the supreme court which he would have had under the old provision when the value of the subject-matter is above $10,0001-. as the amendment stands, he now requires leave of the court to appeal. as may be appreciated, section 68 has posed considerable difficulties in its implementation owing primarily to the ambiguity of its operative words "amount or value of the subject-matter at the trial". in a substantial number of cases, the value of the subject-matter is usually less than $100,000/-. the problem is compounded when leave to appeal is refused by the high court and/or the supreme court. in other words, there would certainly be a total denial or deprivation of a right to appeal against a decision of the high court. in this regard it means that there is virtually a one tier system. in view of the above, one may consider the soundness of having a court of appeal to replace the federal court with jurisdiction to hear appeals as provided 51. amendment effected by act a606/84 with effect from 1st january, 1985. 19 the denning law journal for under the unamended provision of section 68, viz. the retention of the monetary limit of $10,000/-. thus, if the value of the subject-matter is less than $100,000/-, an appeal would lie to the supreme court only with leave. this therefore means that the supreme court would take the place of the privy council. however, the idea of a three tier system is not new and had in fact been rejected by the relevant authority. the rejection being a policy decision of the government, it appears unlikely that this proposal will be entertained. what then is the alternative? a practical solution to the problem, i believe, could be achieved by the enlargement of the jurisdiction of the sessions court in both criminal and civil matters. section 65 of the subordinate courts act, 1948 may be amended to confer jurisdiction on sessions court to hear cases (except certain specific cases as mentioned in the act), where the amount in dispute or the value of the subject-matter does not exceed $100,000/instead of the monetary limit of $25,000/as presently provided. in the light of this, other relevant provisions as contained in sections 69, 70 and 71 will have to be reviewed.52 by reason of the enlargement in jurisdiction, a litigant, where the amount in dispute or the value of the subject-matter is less than $100,000/and therefore within the jurisdiction of the sessions court, may file his claim in the sessions court. by doing so, he automatically has a right of appeal to the high court, for under section 28 of act 7 of 1964 the high court has jurisdiction to hear appeals from a subordinate court where the amount in dispute or the value of the subject-matter exceeds five thousand dollars. and with leave either from the high court or the supreme court as required under the present law, the litigant may go further and appeal to the supreme court from a decision of the high court. from this, it is submitted that one may discern a three tier system. the administration of justice in malaysia may also be adequately served by a small claims court which, as its name suggests, would deal basically with small claims. under article 121 of the federal constitution, federal law may be passed to constitute such court an inferior court and therefore part of the judicial system. the need for a small claims court is obvious. owing to the depreciation in money value, small claims of litigants may be such that recourse to the ordinary courts of law with attendant legal representation may prove extremely costly. for example, the fees to counsel for legal representation alone may far exceed the amount in dispute or value of the subject matter in the claim. it is suggested that a small claims court be established with jurisdiction to try civil cases where the amount in dispute or value of the subject-matter does not exceed, say for instance, three thousand dollars ($3,000/-). the court should be manned by experienced officers not necessarily legally qualified and legal representation, by the nature of 52. section 69 deals with the exceptions to the jurisdictions of the sessions court; section 70 talks about its jurisdiction to hear matters pertaining to the recovery of immovable property and section 71, its jurisdiction to adjudicate on tide to immovable property with the consent of the parties. 20 administration of justice in malaysia the claim, may not be necessary. in this way, not only would the costs of litigation be minimal, there would also be a speedy disposal of cases. the proposed establishment of the small claims court is now under active consideration by a committee appointed to submit all necessary recommendations. postscript courts of judicature {amendment} bill 1986 subordinate courts {amendment} bill 1986 in part c of my paper entitled "is there a need for reform?", mention was made of the difficulties posed by and the resultant problems encountered with in the operation of section 68 (1) (a) of the courts of judicature act; 1964. as also stated; the prescribed ceiling of one hundred thousand dollars ($100,000/-) has rendered most civil appeals from the high court non-appealable to the supreme court unless prior leave to appeal was obtained either from the high court or the supreme court. implicit in the suggestion put forward for an enhanced civil jurisdiction of the sessions court is an attempt to introduce into the existing structure a three tier system in the malaysian administration of justice. i am pleased to say that the aforesaid suggestion will soon see the light of day and its objective attained. at the time of writing this postscript, the courts of judicature (amendment) bill 1986 and the subordinate courts (amendment) bill 1986, which seek to amend section 68 (1) (a) and enhance the civil jurisdiction of the sessions court respectively, have been tabled before the malaysian parliament.53 they have since gone through the first reading at the dewan rakyat and are expected to become law by early 1987. by section 3 of the subordinate courts (amendment) bill 1986, section 65 of the subordinate courts act, 1948 will be amended by substituting the words "twenty-five" the words "one hundred" appearing therein. the new section 65 which refers to the civil jurisdiction of sessions court will therefore read: " ... a sessions court shall have jurisdiction to try all actions and suits of a civil nature where the amount in dispute or value of the subject-matter does not exceed one hundred thousand ringgit." in line with this enhanced jurisdiction, by section 2 of the bill, the designation of "president of sessions court" will be substituted for "sessions court judge". the proposed amendment to section 68 (1) (a) of the courts of judicature act, 1964 by section 4 of the courts of judicature (amendment) bill 1986, reads as follows: 68. (1) no appeal shall be brought to the supreme court in any of the following cases: 53. the first meeting of the first session of the seventh parliament of malaysia which had already commenced will proceed as follows: dewan rakyat (house of representatives) 6 october to 8 december, 1986; dewan negara (senate) 7 october, and i december to 19 december, 1986. 21 the denning law journal (a) when the amount or value of the subject-matter of the claim (exclusive of interest) is less than one hundred thousand ringgit, except with the leave of the supreme court of a judge of the high court. it is to be observed that the words "amount or value of the subject-matter at the trial" in the unamended section 68 (1) (a) which had caused considerable difficulties in interpretation, have been deleted in the proposed amendment. * • i express my thanks to miss soo ai lin, ll.b. (hons.) (mal.), ll.m (monash), senior assistant registrar, supreme court, malaysia, for the valuable assistance rendered in putting up this paper. 22 5 the denning law journal 2018 vol 30 pp 5-54 comparing the transformative potentials of the fccc and the ccd: an ecofeminist exploration kate wilkinson cross * abstract ecofeminists have long exposed the gendered character of human progress and its destructive impact on social and environmental commons. they contend that mainstream strategies responding to environmental crises reaffirm the subordination of women and non-human nature, while also reinforcing the power structures that sustain a white, heteronormative and masculine hegemony. while there is significant ecofeminist scholarship in gender and environment studies, there is little research to date which deconstructs international environmental law in order to explore the extent to which it maintains, reinforces or transforms understandings about human/non-human connections and their gendered nature. this article contributes to broader ecofeminist scholarship by synthesising karen warren’s ecofeminist ethics into an analytical framework through which to analyse international environmental law. the article develops an original analysis of how transformational international legal regimes have been in shaping the international community’s view of the environment and human/non-human interconnections. comparing the often-ignored un convention to combat desertification (unccd) 1994, as well as the more (in)famous un framework convention on climate change (unfccc) 1992, the author evaluates to what extent these regimes engage with and respond to the underlying institutional, structural, social, and conceptual frameworks that contribute to the continued degradation of the environment. the author concludes that while these regimes have transformative potential, they both continue to affirm an ideological perspective that disembeds humanity from the environment, while at the same time commodifying nature in order to protect it. keywords: unfccc, unccd, climate change, desertification, ecofeminism, ecofeminist ethics, international law, * lecturer in law, faculty of business and law, de montfort university. my thanks to the anonymous reviewers for their critical reading of the manuscript and suggested improvements. thank you also to colleagues at the law school for their helpful comments on various drafts of this article. email: kate.wilkinson@dmu.ac.uk mailto:kate.wilkinson@dmu.ac.uk comparing the transformative potentials of the fccc and the ccd 6 1 introduction desertification and climate change are intimately interrelated phenomena. with global temperatures rising because of climate change, there are higher incidences of drought, desertification and heatwaves.1 the combination of climate change and desertification has a disproportionate effect on communities already vulnerable and disadvantaged because of broader economic, social, cultural and political factors. for example, at the time of writing, communities in mali, malawi and kenya are facing starvation due to drought and changes in rainfall.2 these examples show the very real impact of climate change, drought and desertification on the lives of people living in vulnerable communities. over the last thirty years, the international community has mobilised international legal and policy responses to desertification and climate change. the international community first discussed desertification in 1977 at the united conference on desertification, where it adopted the plan of action to combat desertification.3 since then, concerns over the impact of desertification and drought have been raised in various fora, including the 1992 united nations conference on environment and development.4 after significant campaigning by developing countries, states adopted the 1994 united nations convention to combat desertification in those countries experiencing serious drought and/or desertification, particularly in africa (unccd). this convention outlines the obligations for states to undertake with respect to desertification and drought. 1 qi feng and others, ‘what has caused desertification in china?’ (2015) 5 scientific reports 15998. 2 icrc, ‘community-level economic support provides a lifeline for women in northern mali’ (2018) <https://www.icrc.org/en/document/mali-economicsecuritycommunity-support-lifeline-women> accessed 28 february 2018; charles mkoka, ‘drought-hit malawi farmers use sugar and fish soup to battle pests’, reuters (26 february 2018); agatha ngotho, ‘herders get sh175m to ease effects of drought’, the star (kenya, 28 february 2018) <https://www.thestar.co.ke/news/2018/02/28/herders-get-sh175m-to-ease-effects-ofdrought_c1721731> accessed 28 february 2018. 3 united nations, ‘plan of action to combat desertification’ (united nations conference on environment and development 1977) un doc a/conf.74/36, (1977). 4 agenda 21: programme of action for sustainable development 1992 (un conference on sustainable development) (14 june 1992) un doc a/conf151/126/rev1 vol i chapter 12. the denning law journal 7 compared to the issue of desertification, climate change is a relative newcomer, being first characterised as a “common concern” for humankind by the un general assembly in 1988, and again in 1989.5 the general assembly established an intergovernmental negotiating process under its auspices to negotiate a framework convention on climate change in 1990.6 two years later, after tense negotiations, states adopted the 1992 united nations framework convention on climate change (unfccc). as will be shown below, these regimes have very different origins, histories and positions on the international stage. however, both offer transformative potential to engage with the underlying institutional, structural, social, and conceptual frameworks that contribute to the continued degradation of the environment. this article compares the “transformative potential” of the unfccc and unccd regimes. for the purposes of this article, “transformative” refers to how far these regimes engage with the underlying institutional, structural, social, and conceptual frameworks that contribute to the continued degradation of the environment. where these regimes engage with and seek to alter these frameworks, they demonstrate transformative potential – even if such transformation has not in order to explore the transformative potential of these two regimes, this article analyses and compares their legal texts through an ecofeminist analytical framework based on the boundary conditions of karen warren’s ecofeminist ethics. 7 her ethics are particularly suited to exploring the transformative potentials of the unfccc and unccd regimes because they enable a nuanced analysis of the values, assumptions and beliefs informing the development of these two regimes. because this ethical framework re-envisions political strategies, ethical frameworks and scientific understandings, it enables a comparison between the current positions, strategies and frameworks incorporated in these regimes against an explicitly transformative ethic. as will be explained in section two of this article, the analytical framework developed in this article draws on three of warren’s boundary 5 united nations general assembly res 42/53 ‘protection of the climate for present and future generations of mankind’ (6 december 1988) un doc a/res/52/53 preamble; united nations general assembly res 44/207 ‘protection of the global environment for present and future generations’ (22 december 1989) un doc a/res/44/207 preamble. 6 united nations general assembly res 45/212 ‘protection of the climate for present and future generations’ (21 december 1990) un doc a/res/45/212. 7 see karen j warren, ecofeminist philosophy: a western perspective on what it is and why it matters (rowman & littlefield 2000). comparing the transformative potentials of the fccc and the ccd 8 conditions to form interconnecting lenses through which the legal texts of the environmental regimes are read. 8 the first and second lenses are labelled “inclusivity” and “contextuality”. they have relevance when comparing the extent to which the participatory provisions of the climate change and desertification regimes are transformative in scope. they are also relevant when comparing the types of knowledge that are valued within each regime. the third and final lens is called “structural pluralism”. this lens illuminates how sameness and difference are approached within the two regimes. because of the transformative nature of warren’s ecofeminist ethics, they enable a nuanced comparison the unfccc and unccd regimes. this article begins by introducing the unfccc, unccd, and the concept of sustainable development which informs both agreements. section two outlines the key points of ecofeminist theory and sets out the analytical framework developed from warren’s ecofeminist ethics. section three analyses the two agreements and their policy documents to compare and contrast the transformative potential embedded in their texts. using the three lenses – inclusivity, contextuality and structural pluralism – it compares the ways in which they treat the voices of marginalised communities and ecosystem services, their approaches to integrating science and technology into the environmental regimes, and the operationalism of the principle of common but differentiated responsibilities as a way to attend to and recognise differences in capacities between states. section four summarises the analysis and reflects on the extent to which these regimes fulfil their transformative potential. 1.1 introducing sustainable development, the unccd and unfccc the unccd and unfccc focus on the issues of desertification and climate change respectively. both refer to the importance of attaining sustainable development. while not a new concept, 9 sustainable 8 this article builds on previous research developed in kate wilkinson cross, ‘the environment as commodity? an ecofeminist analysis of the extent to which associations between security and the environment have altered the perception of the environment in international law’ (phd thesis, university of sheffield 2016); kate wilkinson cross, ‘ecofeminist potentials for international environmental law’ in douglas a vakoch and sam mickey (eds), ecofeminism in dialogue (lexington books 2017). 9 see marie-claire cordonier segger and ashfaq khalfan, sustainable development law: principles, practices, and prospects (oxford university press the denning law journal 9 development has emerged over the last forty years or so as “an important concept in global efforts to balance economic, social and environmental policies and laws.”10 because of its importance to the evolution of the two regimes, this article will first introduce sustainable development, its key principles and why the international community have latched onto it as an agenda to achieve poverty eradication, economic growth and environmental preservation.11 1.1.1 sustainable development in international law and policy the most accepted definition of sustainable development is “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”.12 thus, there are two key elements to this concept. first, the substantive recognition that development should meet human needs by seeking to end poverty. second, the concept recognises that there are limits to development: it must be “bounded by the evolving constraints of human abilities (technology, governance), and also by diverse environmental limitations.”13 therefore, sustainable development can be understood as a “bridge” which recognises that the obligation towards future generations requires a balance between economic and social development pressures and environmental limits. sustainable development is constructed to “frame cooperative, integrative solutions to some of the most significant challenges of our era” that change over time. 14 therefore, it can be understood as an “integrationist principle” whose “components seek to balance the competing economic, social and environmental interests of the 2004) 15–23; philippe sands and others, principles of international environmental law (4th edn, cambridge university press 2018) 217–21. 10 cordonier segger and khalfan (n 9) 15. 11 united nations general assembly res 70/1 ‘transforming our world: the 2030 agenda for sustainable development’ (25 september 2015) un doc a/res/70/1 para 5. 12 wced, our common future (world commission on environment and development; oxford university press 1987) 8. 13 cordonier segger and khalfan (n 9) 3. 14 ibid. comparing the transformative potentials of the fccc and the ccd 10 international community”. 15 it is explicitly human-centred 16 and this is reflected in both the substantive and procedural elements of the concept. some of the key procedural elements of sustainable development require states, non-state actors and other participants to empower, consult, support public participation, undertake impact and risk assessments, and expand capacity-building and other undefined opportunities. these principles have been included in international law and policy relating to the environment.17 the breadth and depth of law and policy indicates that the procedural elements of sustainable development have been widely accepted by the international community.18 the substantive elements of sustainable development place limitations on the exploitation of the natural environment and are articulated in principles such as inter-generational equity, differential treatment and the precautionary approach. 19 these principles have also been included in international law and governance.20 however, compared to the procedural elements of sustainable development, their legal content remains underdeveloped.21 15 wilkinson cross, ‘the environment as commodity?’ (n 8) 44. 16 rio declaration on environment and development 1992 (un conference on environment and development) (14 june 1992) un doc a/conf151/26 (vol i); 31 ilm 874 (1992) principle 1. 17 convention (no 169) concerning indigenous and tribal peoples in independent countries 1989 (adopted 27 june 1989, entered into force 5 september 1991) 28 ilm 1382 (1989); rio declaration 1992; protocol on access to genetic resources and the fair and equitable sharing of benefits arising from their utilisation to the convention on biological diversity (adopted 29 october 2010, entered into force 12 october 2014) unep/cbd/cop/dec/x/1 (29 october 2010); pulp mills on the river uruguay (argentina v uruguay) judgement, 2010 icj reports 14; certain activities carried out by nicaragua in the border area (costa rica v nicaragua) provisional measures, order of 8 march 2011, 2011 icj reports 6; the south china sea arbitration (the republic of the philippines v the people’s republic of china) award, (12 july 2016) pca case no 2013-19. 18 see in general, sands and others (n 10) 197–250; pierre-marie dupuy and jorge e viñuales, international environmental law (cambridge university press 2018) 58–99. 19 philippe sands, principles of international environmental law (2nd edn, cambridge university press 2003) 253. 20 stockholm declaration on the human environment 1972 (united nations conference on the human environment) (16 june 1972) un doc a/conf48/14/rev1 (1973); 11 ilm 1416 (1972) (1972); rio declaration 1992; convention on biological diversity 1992 (cbd) (adopted 5 june 1992, entered into force 29 december 1993) 1760 unts 79; 31 ilm 818 (1992). 21 for general discussion, see dupuy and viñuales (n 18); sands and others (n 10). the denning law journal 11 sustainable development is an inherently flexible concept because it is both a process and a goal. it is a process that remains central to ongoing negotiations in environmental regimes and in the wider international community. it continues to evolve and remains central to collective and cooperative responses of the international community to the interrelated issues of sustainability and development. 1.1.2 the unccd and its annexes as stated above, there have been long-term concerns over desertification. the 1977 plan of action to combat desertification was one of the first attempts to address the issue at the international level. however, by 1991, the un environment programme concluded that international efforts had not been successful, and desertification had intensified.22 in light of these concerns, developing countries raised the issue of adopting a convention to combat desertification during the preparations for the 1992 rio conference on environment and development. 23 faced with significant opposition by countries within the organisation for economic co-operation and development (oecd), the finalised text of agenda 21, which set out the international action plan to achieve sustainable development, included a paragraph outlining that an inter-governmental negotiating committee should be established for the elaboration of a convention to combat desertification.24 after difficult negotiations, states adopted the unccd in 1994 which entered into force in 1996. the convention is explicitly embedded in the paradigm of sustainable development. it adopts a bottom-up, holistic approach to preventing desertification at the local, national, and regional levels. it bases many of its objectives on attaining sustainable development, while also establishing differing obligations for developed country parties and affected developing country parties.25 by doing so, the convention takes into account the social and economic development needs of developing countries while also addressing the serious environmental problem of desertification. 22 unep, ‘status of desertification and implementation of the united nations plan of action to combat desertification: report of the executive director’ (united nations environment programme 1991) un doc unep/gc/ss.iii/3. 23 bo kjellen, ‘the saga of the convention to combat desertification: the rio/johannesburg process and the global responsibility for the drylands’ (2003) 12 reciel 127, 128. 24 agenda 21 1992 chapter 12.40. 25 pamela s chasek, ‘the convention to combat desertification: lessons learned for sustainable development’ (1997) 6 jed 147, 148. comparing the transformative potentials of the fccc and the ccd 12 this integrative approach is embedded in the objectives of the unccd and in the ways in which parties should implement their obligations. article 2 states that the objective of the unccd is to “combat desertification and mitigate the effects of drought in countries experiencing serious drought and/or desertification, particularly in africa”. 26 parties achieve this objective by ensuring effective action at all levels, within a framework of an “integrated approach”, with a view to contributing towards achieving sustainable development in affected areas. therefore, the unccd encourages parties to focus on improving the productivity of land, rehabilitating, conserving and sustainably managing land and water resources, which will lead to improved living conditions at the community level.27 1.1.3 the unfccc regime the unfccc is a package of compromises.28 it contains elements for almost all the negotiating states, but no state was satisfied by the adopted convention. 29 therefore, at the time, many commentators viewed the unfccc as “punctuation mark in an ongoing process of negotiations.”30 the objective of the convention is to stabilise greenhouse gas emissions at a level that prevents dangerous “anthropogenic interference with the climate system”.31 it includes general principles to guide the parties’ efforts in achieving stabilisation of the climate, including the precautionary approach, inter-generational equity, common but differentiated responsibilities, and sustainable development, among others.32 26 united nations convention to combat desertification in those countries experiencing serious drought and/or desertification, particularly in africa (adopted 17 june 1994, entered into force 26 december 1996) 1954 unts 3 art 2(1). 27 ibid art 2. 28 sands and others (n 9) 299. 29 for a detailed history on the fccc negotiations and entry into force, see daniel bodansky and others, international climate change law (oxford university press 2017) 102–05. 30 ibid 105. 31 united nations framework convention on climate change 1992 (adopted 9 may 1992, entered into force 21 march 1994) 1771 unts 107 art 2. 32 ibid art 3. the denning law journal 13 the climate change regime has subsequently evolved through the adoption of two other legally binding agreements,33 as well as subsequent conference of the parties (cop) decisions. recognising that the commitments included in the unfccc were unlikely to reduce greenhouse gas emissions, the parties adopted the kyoto protocol in 1997. this protocol contains additional commitments for developed countries to limit their anthropogenic emissions through targets.34 like the unfccc, the protocol and subsequent cop decisions reflect a consolidation of a “topdown” regime in which states set internationally-defined, legally-binding emission reduction targets, in line with the guiding principles of the unfccc.35 this top-down approach has been subject to criticisms in terms of both of effectiveness and in terms of the differentiation between developed and developing countries within the regime.36 in 2015, the international community adopted the paris agreement, which came into force in 2016. unlike the previous two agreements, the agreement addresses the long-term commitments by all parties, rather than maintaining the traditional firewall between developed and developing countries. rather than including an annex of targets and timetables, the paris agreement introduces the concept of “nationally determined contributions” (ndcs) as a bottom-up approach towards mitigating climate change.37 this bottom-up approach means that parties to the agreement submit their own contributions towards addressing climate change, based on their individual national circumstances. thus, there are no top-down, internationally agreed targets and timetables and instead, the aim is to ensure that each party achieves their commitments and does not fall back 33 kyoto protocol to the united nations framework on climate change 1997 (adopted 11 december 1997, entered into force 16 february 2005) 2303 unts 162; paris agreement 2015 (signed 12 december 2015, entered into force 4 november 2016) fccc/cp/2015/10/add1. 34 kyoto protocol art 3. 35 william hare and others, ‘the architecture of the global climate regime: a top-down perspective’ (2010) 10 climate policy 600, 601–02; daniel bodansky, ‘a tale of two architectures: the once and future un climate change regime’ (arizona state university sandra day o’connor college of law, 7 march 2011) 2. 36 steve rayner, ‘how to eat an elephant: a bottom-up approach to climate policy’ (2010) 10 climate policy 615. 37 paris agreement art 3. comparing the transformative potentials of the fccc and the ccd 14 on them.38 as yet, how this will work is still to be negotiated through the meeting of the parties to the paris agreement (known as the cma).39 this short overview highlights that both regimes have faced controversy during their initial creation and in their subsequent evolution. they share some similarities in terms of the content and references to broader economic and development factors. they both include references to the paradigm of sustainable development. both recognise that external issues, such as international trade, economic development, social development, levels of technical capacity and other factors, affect the extent to which different communities will be able to achieve the objectives and obligations under each agreement. they each have transformative potential fundamentally to address the environmental problems faced by communities around the globe. however, unlike the unccd, the climate change regime is never out of the spotlight. the issues of differentiation, the tension between developed and developing countries, the gendered aspect of climate change, and the relationship between climate change mitigation, adaptation, and sustainable development all mean that the regime remains in focus. the unccd on the other hand, has produced an evaluation of the effectiveness of its communication due to concerns that it was reaching a limited audience and that its message was getting lost.40 this demonstrates institutional concern that environmental problems such as desertification and drought are being subsumed by the continued focus on climate change. not only does this limit the pressure exerted by civil society on their states to fulfil their obligations under the unccd, but it also means that the unccd has less academic and scholarly interest invested in it. therefore, any transformative potential that it has may be underexplored and insufficiently highlighted. this article addresses this relative lack of interest by comparing and exploring the transformative potentials of these two regimes through an ecofeminist analytical framework, introduced below. 38 ibid art 4; decision 1/cp21 ‘adoption of the paris agreement’ (12 december 2015) fccc/cp/2015/10/add1 paras 205, 23-25. 39 fccc, ‘progress tracker: work programme resulting from the relevant requests contained in decision 1/cp.21’ (unfccc, 2018) <http://unfccc.int/files/paris_agreement/application/pdf/pa_progress_tracker_200 617.pdf> accessed 2 february 2018 (as of 19/01/2018). 40 unccd, ‘independent evaluation of the effectiveness of the unccd communication’ (unccd, 2015) 6–7 <https://www.unccd.int/sites/default/files/relevant-links/201701/communication%20evaluation%20report%20formatted%20final.pdf> accessed 5 february 2018. the denning law journal 15 2 ecofeminism and its relevance to international law unlike other approaches to the study of the environment, ecofeminism make the connection between the exploitation of the environment and the subordination of women central in its analysis. 41 in the mainstream, ecofeminism is usually presented as essentialist and uncritical, claiming that women are closer to nature than men.42 this does a disservice to the scholarship which incorporated materialist and posthumanist analysis of gender and the environment prior to these being popular within mainstream western academia. 43 it developed highly critical accounts of rationalist science, capitalism, speciesism, colonialism, racism, and sexism (hetero and queer), which are central to ecological feminist scholarship.44 these accounts incorporate marxist, socialist, socioeconomic, historical, epistemological, and political perspectives.45 therefore, ecofeminism has evolved into a philosophy, social activism and an intellectual commitment which questions the theoretical and ideological basis of the maledomination of women and non-human nature. 41 greta claire gaard, ‘living interconnections with animals and nature’ in greta claire gaard (ed), ecofeminism: women, animals, nature (temple university press 1993) 1. 42 see e.g. andrew dobson, green political thought (3rd edn, routledge 2000); john s dryzek, the politics of the earth: environmental discourses (3rd edn, oup oxford 2013). 43 sherilyn macgregor, ‘gender and environment: an introduction’ in sherilyn macgregor (ed), routledge handbook of gender and environment (taylor & francis 2017) 1. 44 for a broad overview of ecofeminist theory and its evolution, see e.g. charis thompson and sherilyn macgregor, ‘the death of nature: foundations of ecological feminist thought’ in sherilyn macgregor (ed), routledge handbook of gender and environment (taylor & francis 2017); noël sturgeon, ecofeminist natures: race, gender, feminist theory, and political action (routledge 1997); val plumwood, feminism and the mastery of nature (opening out: feminism for today, routledge 1993) 1–40; mary mellor, feminism & ecology (polity press 1997); see also, ae kings, ‘intersectionality and the changing face of ecofeminism’ (2017) 22 ethics & the environment 63; catriona mortimersandilands and bruce erickson, queer ecologies: sex, nature, politics, desire (indiana university press 2010). 45 karen j warren, ‘feminist environmental philosophy’ in edward n zalta (ed), stanford encyclopaedia of philosophy (summer 2015, metaphysics research lab, stanford university 2015). comparing the transformative potentials of the fccc and the ccd 16 this breadth and depth of analysis directly challenges the mainstream typology of ecofeminism as limited, simplistic and essentialist. for example, john dryzek’s key text on environmental discourses frames ecofeminism as “cultural” and “spiritual”. 46 andrew dobson similarly introduces ecofeminist scholarship as primarily interested in explaining the cultural and social potential of privileging “female” characteristics such as empathy and care in his book on green political thought.47 both authors pay limited attention to more recent scholarship, which draws on feminist science studies, feminist political economy, feminist political ecology, as well as feminist normative theory that “promotes and enacts ethical commitments to inclusivity, intersectionality, and democracy”48 while also demanding an end to the exploitation of non-human nature and the “the dismantling of power structures that sustain, white, masculine, heteronormative hegemony within human societies.” 49 therefore, these books provide an unrepresentative account of ecofeminist academic work by focusing on the essentialist works of early ecofeminist literature even though this work reflects an evolutionary dead-end in the development of ecofeminist theory. as introduced above, ecofeminists critique the exploitative and gendered conceptual frameworks that underpin the dominant and rational discourses in western society. these are formed by a set of values, attitudes, beliefs, and assumptions that shape and mirror how an entity views itself and the world around it, and a number of different factors such as class, religion, nationality, gender, and race/ethnicity can alter the mirror in which an entity views itself.50 as such, ecofeminism provides a “spotlight” on some of the “shared conceptual roots of the unjustified dominations of women, non-human animals, and nature”.51 this critique is used by many ecofeminists to explore the interconnecting ways in which these shared conceptual roots function in real life to maintain institutions and practices of oppression and domination. 52 it can also question the practical implications for this 46 dryzek (n 42) 190–91. 47 dobson (n 42). 48 macgregor (n 43) 8. 49 ibid. 50 plumwood, feminism and the mastery of nature (n 44). 51 warren, ‘feminist environmental philosophy’ (n 45). 52 e.g. chris j cuomo, toward thoughtful ecofeminist activism (ecological feminist philosophies, indiana university press 1996); kate darling, ‘a weight for water: an ecological feminist critique of emerging norms and trends in the denning law journal 17 continued domination in social systems and institutions, including the global market economy, international environmental institutions, and through the implementation of international environmental law (iel) and policy at the local level.53 karen warren articulates an ecofeminist theory that is “transformative” because it seeks to transform feminism and environmentalism, and guide broader social change.54 her theory does two things: it gives an analysis of oppressive conceptual frameworks and how they reinforce interconnected institutions and practices. it also re-envisions the political strategies, theoretical positions, ethical frameworks, scientific understandings, and methodological approaches to develop peaceful and healthy social systems, communities, and people.55 these two aspects of her philosophy make it a sound basis from which to compare and critically evaluate international law relating to desertification and climate change. 2.1 introducing karen warren’s boundary conditions warren’s vision of ecofeminist ethics is based on eight key boundary conditions. these are conditions “within which ethical decision-making may be seen as feminist.”56 as discussed in previous work, there are certain conditions that are particularly relevant to the analysis of iel.57 these are outlined below before turning to explain how these conditions may be integrated into an analytical framework. warren states that an ecofeminist ethic must be “anti-sexist, anti-racist, anti-classist, anti-naturist [sic], and opposed to any “ism” that presupposes global water governance’ (2012) 13 melb j int’l l 1; greta gaard, ‘ecofeminism and climate change’ (2015) 49 women’s stud int forum 20. 53 kate wilkinson, ‘payment for ecosystem services and the green economy: green washing or something new?’ (2014) 5 jhre 168; kate wilkinson, ‘is this the future we want? an ecofeminist comment on the un conference on sustainable development outcome document’ in kim rubenstein and katherine g young (eds), the public law of gender: from the local to the global (cambridge university press 2016); wilkinson cross, ‘ecofeminist potentials’ (n 8). 54 karen j warren, ‘response to my critics’ (2002) 7 ethics & the environment 39, 41. 55 ibid 42. 56 gaard (n 41) 2. 57 wilkinson, ‘payment for ecosystem services’ (n 53); wilkinson cross, ‘the environment as commodity?’ (n 8); wilkinson cross, ‘ecofeminist potentials’ (n 9). comparing the transformative potentials of the fccc and the ccd 18 or advances a logic of domination”58. it must be contextual and see ethical “discourse and practice as emerging from the “voices” of entities located in different historical circumstances”.59 therefore, it is a “kind of narrative about humans, human-human relationships and human-non-human animal or nature relationships”.60 it places as centrally significant “how a moral agent is in relationship to another – and not simply the nature of the agent or ‘other’, or the rights, duties, and the rules that apply to the agent or “other””.61 her ecofeminist ethics are inclusivist. this means that it emerges from and reflects the diversity of perspectives of marginalised peoples and women. 62 as ecofeminism opposes the nature/culture dualism, it acknowledges that humans are members of an ecological community, but also different from other members. therefore, ecofeminist ethics can recognise differences and commonalities between humans and non-human nature. warren’s ethics “[provide] a central place for values typically unnoticed, underplayed, or misrepresented in traditional ethics”. 63 examples of such values include friendship, love or care. her ethics emphasise that evaluating or deciding whether such values are useful or appropriate in any given discussion will depend on the context. for example, when discussing contracts or property relationships, then the talk of rights can be useful and appropriate. when deciding what is advantageous and cost-effective for most people, speaking about utility can be appropriate. building on the above, ecofeminist ethics are “structurally plural” because they reject the assumption that there is one unified voice through which ethical values, beliefs, attitudes and conduct can be assessed. 64 therefore, they presuppose and maintain difference, both between humans as well as between humans and some elements of non-human nature.65 this means that her ethics affirm that humans are members of an ecological community (in some respects) while also being different from it. an important aspect for the analysis of international law is that warren’s ethics 58 warren, ecofeminist philosophy (n 7) 99. 59 ibid. 60 ibid. 61 ibid. 62 ibid 99–100. 63 ibid 100. 64 ibid 139. 65 ibid 142. the denning law journal 19 pay attention to relationships and community, and the respectful acknowledgement of them. finally, warren’s ethics reject “gender-free or gender-neutral descriptions of humans, ethics and ethical decision-making”.66 this means that they reject “abstract individualism” which is the position “that it is possible to identify a human essence or human nature that exists independently of any particular historical context”.67 therefore, her ethics recognise that relationships “play an essential role in shaping what it is to be human” and that relationships between humans and non-human nature are a constitutive aspect of what it is to be human.68 ecofeminist ethics are “care-sensitive ethics”. according to warren, “care-sensitive ethics” have three features that must be met before ethical principles in western philosophy can qualify as a “bona fide ethical position”.69 first, a central aspect of moral reasoning and motivation is the ability to care about others as well as oneself. second, and building on the above features of an ecofeminist ethic, the universality of the ethical principles should be situated rather than ahistorical, transcendent and universal. third, the appropriateness of the ethical principle in a given context is determined by the considerations of care. therefore, traditional values such as utility, duty, and rights can be morally salient, so long as the application of the principle satisfies the three conditions of a care-sensitive ethic. as argued elsewhere, this aspect of her ecofeminist ethics is important for the analysis of iel. 70 this is because it provides the foundation to undertake a highly contextualised and nuanced analysis of the underlying assumptions and ethical principles that have informed the development of the two legal regimes. 2.2 introducing the ecofeminist analytical framework the first lens – inclusivity – incorporates the boundary conditions that seek to include entities traditionally excluded or “othered” by western philosophy. the second lens – contextuality draws out a central theme within the boundary conditions that focuses on historical context and how this informs social relations. it explores how the two regimes pay attention 66 ibid 101. 67 ibid. 68 ibid 143. 69 ibid 101. 70 wilkinson cross, ‘the environment as commodity?’ (n 8) 108–14; wilkinson cross, ‘ecofeminist potentials’ (n 8) 209–10. comparing the transformative potentials of the fccc and the ccd 20 to history and context. it examines how certain values which are underplayed by traditional ethics are incorporated within the legal regimes. it pays particular attention to the context in which discussions of different ethical principles, such as utility and rights are raised, and if they emerge from voices located in different historical circumstances. finally, it explores the extent to which the legal documents reject abstract individualism by recognising the historical context that plays a central role in shaping humanity, and shaping the norms and law created during that time.71 the third lens – structural pluralism explores how these regimes pay attention to and respect plurality between entities, states, and values. this theme is reflected in the boundary conditions that presuppose and maintain difference between humans, and between humans and non-human nature. it affirms that humans are members of an ecological community, and of different human, social communities.72 in the context of iel, it enables a nuanced analysis of the ways in which the international community seeks to balance the different interests that relate to the environment in this area of law.73 in this analysis, i will be able to consider what this might mean about the diversity of views of the environment at the international level. finally, it draws on criticisms by some writers and activists that there should be a “bottom-up” approach to the creation and implementation of iel that accounts for diversity, location, and difference.74 these three lenses, taken together, form an interconnecting framework through which to compare the transformative potential of the two international environmental regimes. each has stronger synergies with differing aspects of international law-making and governance. for example, the inclusivity lens has stronger synergies in relation to the participation by different communities in the creation of international law and the subsequent implementation of obligations. contextuality is relevant when exploring which issues are prioritised during the negotiations, and which other global regimes remain unaffected or distinct from the legal obligations within different environmental regimes. structural pluralism focuses on how the regimes attend to differences between parties and other actors within the regime. as these lenses are interconnected and 71 wilkinson cross (n 53). 72 niamh moore, ‘eco/feminism and rewriting the end of feminism: from the chipko movement to clayoquot sound’ (2011) 12 fem theory 3, 11. 73 wilkinson cross (n 8) 111; wilkinson cross (n 8) 210. 74 vandana shiva, staying alive: women, ecology and development (zed 1988); dharam ghai and jessica m vivian, grassroots environmental action: people’s participation in sustainable development (routledge 1992); sturgeon (n 44) 141– 66; maria mies and others, ecofeminism (zed books 2014). the denning law journal 21 intersecting, they enable a recognition that different categories, such as participation, the inclusion of other international interests, and the way in which the environment is represented, bleed into each other, have their own intersections, and cannot be analysed independently from each other. 3 comparing the unfccc and the unccd this section compares the legal and policy documents of the unfccc and unccd through the analytical framework introduced above. focusing on the principles, norms and obligations incorporated into the two regimes, the analysis suggests that the treatment of women, the environment, and the incorporation of science and technology within these two regimes simply reaffirms and extends the dominant conceptual frameworks informing the evolution of iel. this ultimately inhibits the transformative potential contained in these two regimes because it limits the space for engaging in open and participative conversations about humanity, history, ethics and our position within broader ecological systems. 3.1 comparing the participation of marginalised communities and ecosystem services in the unfccc and unccd through the inclusivity lens the following section explores the transformative potentials of the two regimes by comparing two elements important to ecofeminist ethics: the participation by state and non-state actors in the creation and subsequent evolution of the two legal regimes; and how the two regimes approach material embodiment of humanity within an ecological community. it is argued that the failure to integrate a gender dimension into the regime until relatively recently, and the historically limited reference to inclusive participation in the creation and implementation of objectives within the climate regime each highlight the ways in which the regime does not eradicate the “isms” of domination or fully incorporate the voices of marginalised communities. the introduction of ecosystem services as a key element of both regimes suggests that they treat the ecosystem as a commodity. this in turn reinforces the separation between human and nonhuman nature, thus legitimising the exploitation and commodification of non-human nature. 3.1.1 marginalised communities’ participation in the two regimes: comparing the transformative potential comparing the transformative potentials of the fccc and the ccd 22 the inclusion of traditionally marginalised communities during the creation of international agreements is a way in which states can seek to mitigate the “isms” of domination within the legal agreement. this is because it enables the voices of individuals who directly experience the impact of environmental degradation to be heard. therefore, it can go in some way to identify how the assumptions informing different policies can detrimentally affect the lives of vulnerable communities by speaking truth to the ways in which broader social and economic structures maintain structural inequalities at the local level. during the drafting of the unccd, states explicitly invited participants from communities directly affected by drought and desertification. the intergovernmental negotiating committee tasked with drafting the unccd was openly inclusive, as demonstrated by devoting a week to information sharing, and also supporting the participation of ngos to contribute “constructively to the success of the negotiating process”.75 over the course of the negotiations, non-state actors met with state delegations formally and informally and they were successful in convincing governments to propose their ideas.76 for example, ngos argued that national action plans should establish a participatory approach at the international level, and they should be allowed to attend conferences of the parties as observers, or any other decision-making body created.77 both states and nsas supported the full local participation in decision-making and incorporating an integrated, “bottom-up approach” to combating desertification. 78 this enabled the 75 united nations general assembly res 47/188 (22 december 1992) un doc a/res/47/188 para 8. 76 unccd, ‘report of the intergovernmental negotiating committee for the elaboration of an international convention to combat desertification in those countries experiencing serious drought and/or desertification, particularly in africa on its second session’ (15 october 1993) un doc a/48/226/add.1 appendix iii report of working group i, para 15 and appendix iii report of working group ii, para 15; michele merrill betsill and elisabeth corell, ‘ngo influence in international environmental negotiations: a framework for analysis’ (2001) 1 global environ polit 65, 93–94. 77 enb, ‘summary of the second session of the inc for the elaboration of an international convention to combat desertification: 13-24 september 1993’ (earth negotiations bulletin, 1993) <http://www.iisd.ca/vol04/0422000e.html> accessed 30 january 2015. 78 unccd, ‘compilation of government views, statement and drafting proposals. note by the secretariat’ (1993) un doc a/ac.241/12; chasek (n 26) 155. the denning law journal 23 different experiences, needs and values of local communities to inform the negotiations of the unccd. this open participation process was integrated into the legal text of the unccd as a central feature of the national action plans. these “naps” set out the ways in which affected country parties will respond to the causes and effects of desertification and drought. articles 9 and 10 emphasise the importance of incorporating bottom-up participatory approaches and specifically refer to women, resource uses, and local communities. 79 similarly, the regional annexes to the convention adopt this approach, although to a varying degree.80 for example, the regional annex for africa makes direct reference to the role played by women and the importance of their participation, whereas the regional annex for asia is not explicit in their references to the participation by marginalised communities.81 these provisions point to states supporting nsa participation in areas that relate to sustainable development and environmental degradation. compared to the climate change regime, the unccd negotiating process offered more opportunities for non-state actors to contribute to the drafting of the convention. the conference organisers engaged directly with those communities who were most affected by climate change. not 79 unccd 1994 arts 9, 10(2), 10(2)(f). see also arts 3, 5(d), 17(1)(f), 18(2)(a), 19(1)(a), 19(3)(b), 21(1)(d), 22(7); geoffrey lean, down to earth: a simplified guide to the convention to combat desertification, why it is necessary and what is important and different about it (secretariat of the un convention to combat desertification 1995) 19; alon tal and jessica a cohen, ‘bringing “top-down” to “bottom-up”: a new role for environmental legislation in combating desertification’ (2007) 31 harv envtl l rev 163, 177. 80 united nations convention to combat desertification in those countries experiencing serious drought and/or desertification, particularly in africa, annex i regional implementation annex for africa (adopted 17 june 1994, entered into force 26 december 1996) 1954 unts 3 arts 4(b), 6(2), 8(2)(c), 11(g); united nations convention to combat desertification in those countries experiencing serious drought and/or desertification, particularly in africa, annex ii regional implementation annex for asia (adopted 17 june 1994, entered into force 26 december 1996) 1954 unts 3 art 4(d); united nations convention to combat desertification in those countries experiencing serious drought and/or desertification, particularly in africa, annex iii regional implementation annex for latin america and the caribbean (adopted 17 june 1994, entered into force 26 december 1996) 1954 unts 3 art 4(l); united nations convention to combat desertification in those countries experiencing serious drought and/or desertification, particularly in africa, annex iv regional implementation annex for the northern mediterranean (adopted 17 june 1994, entered into force 26 december 1996) 1954 unts 3 arts 3(2), 5(d). 81 unccd 1994 annex i (africa) art 8(2)(c). comparing the transformative potentials of the fccc and the ccd 24 only does this continue to ensure that disadvantaged voices are heard, but also reflects a plurality of experiences contributing to the evolution of the regime. this openness and the explicit inclusion of traditionally marginalised communities as key participants in naps may indicate a commitment to address some of the “isms” of domination criticised by ecofeminists as it enabled voices generally excluded from the international sphere to speak and raise concerns over economic, social and political inequalities which compounded the effects of desertification. the above analysis indicates that the unccd was relatively successful at enabling the voices and experiences of traditionally marginalised and excluded communities to be heard during the negotiating process. this opportunity was transformative because it incorporated inclusive references that obliged state parties to provide for the participation by groups, such as women, who have traditionally been excluded from international institutions. these references mean that women, local communities and indigenous communities are also involved in the subsequent development of policy and institutions related to the unccd. however, compared to the unccd, the unfccc has been slow to enable the voices of traditionally marginalised groups to contribute to the institutional evolution. this is because it omitted certain major groups from gaining official observer status. “major groups” are the nine sectors of society recognised by agenda 21 as the main channels through which broad participation would be facilitated in un activities related to sustainable development. they include, inter alia, women, children and youth, indigenous peoples, business and industry, and non-governmental organisations.82 in order to participate actively in meetings, they need to be granted official observer status according to the provisions of the treaty. article 4 unfccc places broad obligations on parties to adopt an expanded approach to participation. however, there is no such obligation for the convention’s institutions. 83 certain major groups were granted official observer status from the outset. these groups included environmental ngos, and business and industry ngos. 84 other major groups, such as local government and municipal authorities, and indigenous peoples, were granted official recognition in 1995 and 2001 respectively. the women’s major group had to wait until 2011 before 82 agenda 21 1992 ch 24-32. 83 unfccc 1992 art 4. 84 karen morrow, ‘integrating gender issues into the global climate change regime’ in susan buckingham and virginie le masson (eds), understanding climate change through gender relations (routledge 2017). the denning law journal 25 being granted official recognition by the regime.85 to date, the farmer’s major group remains subject to provisional recognition.86 the delay in officially recognising all major groups indicates a prioritisation and valorisation of voices and experiences from particular backgrounds, such as technology, business and trade. the slow inclusion of the women’s major group and farmers major group gives insight about which voices and whose experiences were valued during the evolution of the climate change regime. it highlights that the international community were slow to recognise gender as an important constituency for responses to climate change in the institutional machinery of the unfccc regime.87 for one thing, it means that the diverse interests, expertise and experiences of women are omitted from the information gathering processes, and from informing the negotiations. second, without having a platform for women’s expertise, interests and experiences, it is more difficult for stakeholders to highlight the interconnecting ways in which climate change disproportionately impacts and affects women and other marginalised communities. for example, women make up 48% of the agricultural labour force in developing countries.88 this percentage is likely to grow because of the increased feminisation of agriculture as a result of “increased urbanization, the migration of many young men to the cities, commercial farming growth, conflict, and climate change”. 89 rural women in particular are disproportionately affected by climate change because they undertake a higher proportion of social reproductive work, such as childcare and collecting firewood and water. 90 the slow recognition of gender as a constituency and the continued failure to officially recognise the farmers major group has a gendered impact, as it excludes the voices and 85 fccc, ‘non-governmental organisation constituencies’ (2011) <https://unfccc.int/files/parties_and_observers/ngo/application/pdf/constituency_ 2011_english.pdf> accessed 7 march 2018. 86 fccc, ‘unfccc constituency focal points’ contact details’ (2018). <https://unfccc.int/sites/default/files/resource/constituency_focal_points.pdf> accessed 7 march 2018 87 for an interesting discussion of this issue see morrow (n 85). 88 fao, ‘why is gender equality and rural women’s empowerment central to the work of fao’ (gender, 2018) <http://www.fao.org/gender/background/en/> accessed 18 may 2018. 89 fao, ‘rural women: striving for gender-transformative impacts’ (global forum on food security and nutrition, 2017) 2. 90 christine jost and others, ‘understanding gender dimensions of agriculture and climate change in smallholder farming communities’ (2016) 8 clim dev 133. comparing the transformative potentials of the fccc and the ccd 26 experiences of people who are disproportionately affected by climate change while also being the closest to the land that is degraded. nevertheless, as discussed below, there are some signs of change within the unfccc, particularly in relation to integrating gender considerations into unfccc work. integrating a gender perspective: the adoption of gender action plans by the unccd and the unfccc like the unccd, there has been some substantive progress with regards to gender in the unfccc after the grant of constituency status for the women’s major group in 2011. unlike the earlier unfccc and the 1997 kyoto protocol, the 2015 paris agreement refers to gender equality and the empowerment of women in its preamble, and in the context of climate change adaptation (article 7) and capacity building (article 11).91 decision 3/cp.23 establishes a gender action plan (gap) which “recognises the need for women to be represented in all aspects of the unfccc process and the need for gender mainstreaming through all relevant targets and goals in activities under the convention as an important contribution to increasing their effectiveness”.92 the gap lists four priority areas: capacity-building, knowledge-sharing and communication; genderbalance, participation and women’s leadership; coherence, genderresponsive implementation and means of implementation; and monitoring and reporting. these priority areas reflect the goal of embedding gender considerations into all activities undertaken by the climate change regime. the gap provides “quick win” solutions, such as promoting travel funds as a means to support the participation of women in national delegations, and organising and conducting capacity-building training on leadership and negotiation skills.93 it aims to enhance the capacity of parties and stakeholders to develop “gender responsive policies, plans and programmes on adaption, mitigation, capacity-building technology and finance” through, inter alia, workshops and technical assistance.94 it also aims to hold a dialogue on the implementation of commitments to integrate gender into areas such as access to finance, technology needs assessments, 91 paris agreement arts 11(3)-11(5). 92 decision 3/cp23 ‘establishment of a gender action plan’ (17 november 2017) fccc/cp/2017/11/add1 annex para 3. 93 ibid annex 16. 94 ibid annex 16. the denning law journal 27 and budgeting. 95 these activities focus on improving the current institutional framework, structures and policies in order to ensure that they are able to respond to gender concerns. the gap also identifies the need to share experiences in how parties and observer organisations have promoted the systematic integration of gender considerations into issues such as mitigation and adaptation activities. 96 these examples indicate that the gap recognises that stakeholders, such as women’s rights organisations, indigenous women representatives and other actors, should be involved to ensure an inclusive and open dialogue.97 nevertheless, the content of the gap and the paris agreement both suggest that state parties and the institutional machinery of the unfccc have not engaged with the conceptual and structural elements of the climate change problem which continue to exclude and devalue women. the activities outlined in the gap ensure that data is produced and there is a greater understanding of the impact of climate change on gender, but they do not engage with the conceptual and structural barriers that continue to exclude and devalue women within the spheres that are prioritised in the climate change: technology, financing, business, and trade. instead, the gap seeks to empower women by integrating gender considerations into all activities of the unfccc, which may not offer the opportunity to critique the underlying assumptions that inform these activities, and what they may say about the relationship between humanity and the environment. therefore, the extent to which it can engage with transformation ecofeminist ethics remains limited. the unccd has also recognised the importance of integrating a gender perspective in the implementation of the convention. parties to the unccd and stakeholders have acted on gender since 1998 and have repeatedly called for consistent gender balance in civil society participation and within the roster of independent experts. parties and stakeholders have evaluated the actions in support of women and women’s groups, particular those undertaken at the local level. 98 building from these reports, the parties have requested the unccd secretariat to promote gender through its policy-advocacy framework, and to mainstream gender issues at different levels and with the involvement of multiple stakeholders.99 in 95 ibid annex 17. 96 ibid annex 16. 97 ibid annex 16. 98 unccd, ‘overview of gender mainstreaming in the implementation of the convention: 1998–2018’ (7 september 2017) iccd/cop(13)/crp.1 part iii. 99 decision 9/cop11 ‘ways of promoting and strengthening relationships with other relevant conventions and international organizations, institutions and comparing the transformative potentials of the fccc and the ccd 28 2017, the cop adopted a decision explicitly acknowledging that mainstreaming gender in the implementation of the convention will strengthen its effectiveness and efficiency at the local level. 100 the unccd adopts a social reproductive perspective in the gender plan of action (gpa). it identifies that women are “strategic agents of change”101 and acknowledges the structural inequalities embedded in the “social, political, economic and cultural institutions, norms and practices” that limit women’s agency and undermine the effective implementation of the convention.102 in response to these findings, the gpa intends to “make the implementation of the convention … gender-responsive and transformative … by providing guidance to parties and other actors on policies and measures to mainstream gender …”103 the gpa states that women must benefit from any interventions and they should not increase women’s burden.104 the gpa outlines four key priorities for action, which cover women’s participation in decisions to implement the unccd, integrating women’s economic empowerment in these activities, strengthening women’s land rights and access to resources, and enhancing women’s access to knowledge and technology. 105 mechanisms for implementation include “working with and through women’s organisations”, developing strategic partnerships, mobilising financial resources, and monitoring and reporting on the interventions.106 these provisions are more progressive because they place the barriers to participation in a broader context that takes into account the need to establish foundations for women’s empowerment. therefore, compared to the gap, the gpa incorporates a more transformative approach towards gender recognition and gender agencies’ (26 september 2013) iccd/cop(11)/23/add1 (2013); decision 9/cop10 (21 october 2011) iccd/cop(11)/23/add1. 100 decision 30/cop13 ‘gender equality and women’s empowerment for the enhanced and effective implementation of the convention’ (15 september 2017) 15 september 2017; unccd, ‘draft advocacy policy frameworks: gender, drought, and sand and dust storms. note by the secretariat’ (3 july 2017) iccd/cop(13)/19. 101 unccd, ‘gender plan of action’ (n 100) para 10. 102 ibid para 11; see also barbara laslett and johanna brenner, ‘gender and social reproduction: historical perspectives’ (1989) 15 annu rev sociol 381; patricia e perkins, ‘feminist ecological economics and sustainability’ (2007) 9 journal of bioeconomics 227 103 unccd (n 100) para 14. 104 ibid para 16. 105 ibid para 17. 106 ibid paras 18-21. the denning law journal 29 mainstreaming in the unccd. this is because it starts from a position which recognises the structural barriers faced by women. unlike the unfccc, which focuses on improving existing institutional processes and developing ways to incorporate women within them, the gpa focuses on the local level and addressing barriers to implementation there. furthermore, by approaching the barriers facing women from a social reproductive perspective, the gpa has adopted a more critical and nuanced perspective from which to start. this indicates a greater engagement with the problems faced by women experiencing drought and desertification. the above comparison of the treatment of women within the two regimes indicates that the unccd incorporates more transformational participatory provisions than the unfccc. the unccd recognises that different communities and members of society are disproportionately affected by drought and desertification, depending on a number of factors. it has embedded inclusive participation within its provisions, the naps and within the institutional structure itself. it recognises and values the experiences of marginalised communities, particularly women, and as such, the participation reflects a bottom-up approach to developing and implementing the agreement. therefore, these provisions indicate a more transformative approach to responding to drought and desertification because they enable the experiences, needs and values of women to inform the evolution of the regime. however, with the recognition that gender is an important constituent of climate change and with the introduction of the gender action plan, the unfccc may be “catching up” to the unccd. as it currently stands, the focus of the climate change regime is integration and mainstreaming gender considerations across all work streams. this focus does not allow much opportunity to engage in more conceptual and transformational debate about why women and other marginalised communities are disproportionately affected, what that says about human/non-human relationships understood within the regime, and what this may tell us about current strategies towards responding to the issue. 3.1.2 integrating ecosystems services into the regimes: reinforcing the human/nature divide? ecofeminist ethics also acknowledge that humanity is embedded within ecological systems, rather than separate and distanced from it. 107 for ecofeminism, any international regime or legal agreement that recognises 107 mary mellor, ‘feminism and environmental ethics: a materialist perspective’ (2000) 5 ethics & the environment 107; mellor, feminism & ecology (n 44). comparing the transformative potentials of the fccc and the ccd 30 the embeddedness of humanity in non-human nature would be transformational. however, very little iel includes strong language that acknowledges the embeddedness of humanity within a broader ecological system. instead, it emphasises the second aspect of this relationship, namely that humanity is different and distinct from non-human nature and adopts an anthropocentric worldview. this anthropocentric worldview places human beings and their interests as the central consideration when addressing environmental concerns. it legitimises the exploitation of non-human nature because it is seen as other, separate and distinct from humanity. val plumwood extends this critique and argues that historically, anthropocentrism and androcentricsm have been “intimately connected” within the western philosophical tradition.108 androcentricsm refers to “male-centred thinking that assumes the superiority of men over women,” that “naturalises and justifies a certain sort of self-centredness, self-imposition, and dispossession, [and] provides… a very distorted framework for perception of the other.”109 an anthropocentric framework is built on logical structures which create a “false universalism in culture in which the experiences of the dominant “centre” are represented as universal, and the experiences of those subordinated in the structure are rendered as secondary, or irrational”.110 applying this analysis to the context of iel, the emphasis of difference and othering, also enables non-human nature to be translated into commodities or entities and objects that serve a purpose or function for the benefit of (certain categories of) humanity. incentivising conservation through the commodification of nature one way in which this perspective has been incorporated within the two environmental regimes is through the introduction of “ecosystem services” as way to incentivise the conservation of important ecological functions that are necessary for the survival of humanity.111 ecological functions are the “interacting biological, chemical and physical processes that underpin 108 val plumwood, ‘nature, self and gender: feminism, environmental philosophy, and the critique of rationalism’ (1991) 6 hypatia 3, 22. 109 val plumwood, environmental culture: the ecological crisis of reason (routledge 2002) 118. 110 ibid 99. 111 jose puppim de oliveira and others, governing the forests: an institutional analysis of redd+ and community forest management in asia (united nations university and international tropical timber organization 2013) 1. the denning law journal 31 the provision of ecosystem services”.112 ecosystem services are understood as “the benefits that people obtain from ecosystems”. 113 they include provisioning, regulating, cultural, and supporting services – all of which are defined in relation to humanity.114 payment for ecosystem services (pes) are schemes that incentivise the conservation of ecological services for future generations while also promoting economic growth and development in developing countries.115 the concept of ecosystem services has been incorporated within the climate change regime in the context of land use, land-use change and forestry activities.116 in 2007, the cop adopted the bali action plan which outlined a commitment to consider “policy approaches and positive incentives on issues relating to reducing emissions from deforestation and forest degradation in developing countries; and the role of conservation, sustainable management of forests and forest carbon stocks in developing countries”.117 subsequent cop decisions refined the reducing emissions from deforestation and forest degradation (redd) mechanism and made the financial incentivisation more explicit.118 this is a voluntary climate change mitigation approach that incentivises developing countries to reduce emissions from deforestation and forest degradation. the paris agreement incorporates redd+ and the concept of ecosystem services in article 5. this provision encourages parties to “take action to implement and support, including through results-based 112 barron j orr and others, ‘scientific conceptual framework for land degradation neutrality: a report of the science-policy interface.’ (unccd-spi technical series no.01, 2017) 13. 113 ibid; walter v reid and others, ecosystems and human well-being: synthesis (island press 2005). 114 orr and others (n 112) 13. 115 wilkinson, ‘payment for ecosystem services’ (n 53) 169. 116 unfccc 1992 art 4(1)(d); kyoto protocol art 2. 117 decision 1/cp13 ‘bali action plan’ (14-15 december 2007) fccc/cp/2007/6/add1* para 1(b)(iii). 118 decision 2/cp15 ‘copenhagen accord’ (18 december 2009) fccc/cp/2009/11/add1; decision 1/cp16 ’the cancún agreements: outcome of the work of the ad hoc working group on long-term cooperative action under the convention (10-11 december 2010) fccc/cp/2010/7/add1; decision 2/cp17 ‘outcome of the work of the ad hoc working group on long-term cooperative action under the convention’ (11 december 2011) fccc/cp/2011/9/add1; see also fccc, ‘report of the ad hoc working group on long-term cooperative action under the convention on its eighth session, held in copenhagen from 7 to 15 december 2009’ (5 february 2010) fccc/awglca/2009/17. comparing the transformative potentials of the fccc and the ccd 32 payments, the existing framework as set out in related guidance and decisions already agreed under the convention”.119 therefore, while the agreement does not explicitly refer to pes, it does include references to incentivising states through economic reward to conserve and protect important ecological functions. current negotiations under the paris agreement indicate that redd+ will be incorporated into developing countries’ intended nationally determined contributions (indcs), as well as voluntary cooperation.120 the continued integration of results-based payments, pes and ecosystem services highlights that that the anthropocentric worldview, with its underlying value dualism that separates human/nature thus legitimising the commoditisation of nature, continues to inform international responses to climate change mitigation. this perception of the environment is further reflected in the language in the paris agreement, which refers to forests as “sinks” or reservoirs for greenhouses gases. this is a reductive view of the environment, which views non-human nature as a “sink”, and something to be used for human interests, rather than recognises that human activities are embedded and reliant on continued ecological functions of ecosystems. the extension of this worldview is the assumption that communities need to be “incentivised” or “rewarded” for its conservation. this anthropocentric worldview is not restricted to the climate change regime. the desertification regime also promotes the use of ecosystem services as a solution to protect degrading ecosystems while maintaining economic growth and achieving sustainable development objectives. the unccd has embedded the concept of ecosystem services into many of its strategies for achieving the objectives of the convention. one of the strategic objectives of the desertification regime is to improve land productivity and related ecosystem services.121 in the context of the unccd, the goal of land degradation neutrality refers to the goal of maintaining or enhancing the “stocks of natural capital associated with land resources and the ecosystems that flow from them.”122 in this conceptual framework, ecosystem functions have been transformed into “services” that 119 paris agreement art 5(2). 120 fccc, ‘non-market-based approaches: technical paper’ (24 november 2017) fccc/tp/2014/10; see also peter graham, ‘cooperative approaches for supporting redd+: linking articles 5 and 6 of the paris agreement’ (climate advisors, 2017) 6. 121 decision 7/cop13 ‘the future strategic framework of the convention’ (15 september 2017) iccd/cop(13)/21/add1 annex part iii. 122 orr and others (n 112) 3. the denning law journal 33 can be “delivered” in order to achieve sustainable food production.123 these services are performed for the benefit of human kind, particularly as an “engine of economic growth and a source of livelihood for billions worldwide”. 124 thus, ecosystem services are explicitly defined as the “benefits” humanity obtains from ecosystems. 125 more generally, nonhuman nature is referred to as “natural capital” that can be harnessed for sustainable development. 126 this language, informed by economics, highlights the underlying logic that places humanity at the centre, and associated functions are defined in terms of humanity’s needs. the concept of “ecosystem services” itself is “indicative of an exploitative and androcentric construction of the living order which continues to perpetuate a hierarchical way of thinking that separates humans from nature and reduces nature as subordinate”. 127 as i have argued elsewhere, by redefining ecological functions as services, international policy and discourse “recasts nature as providing a “service” to humanity, without any interrogation of the gendered and exploitative ideology implicit in the language”.128 in addition, it may be seen as a manifestation of economic rationalism because it seeks to translate the protection of the environment itself into an economic process, thereby disembedding ecosystems themselves. the above examples from both regimes reveal that the conceptual frameworks and logical structures informing these policies continue to view the environment as separate and subordinate, therefore legitimising its exploitation and reinforcing its value as a commodity or resource for economic gain. the preceding comparison between the unfccc and the unccd highlights that both incorporate anthropocentric and androcentric perspectives towards non-human nature. both regimes have incorporated the concept of ecosystem services as ways in which to achieve the objectives of the regimes. it has highlighted how this concept positions humans as central and non-human nature as subordinate and as a resource to be used for human purposes. therefore, the extent to which these two 123 ibid. 124 unccd, ‘land and sustainable development goals’ (nd) <https://www.unccd.int/issues/land-and-sustainable-development-goals> accessed 23 march 2018. 125 decision 7/cop13 the future strategic framework of the convention annex 19. 126 orr and others (n 112); unccd, ‘land and sustainable development goals’ (n 124). 127 wilkinson, ‘payment for ecosystem services’ (n 53) 169. 128 ibid fn 7. comparing the transformative potentials of the fccc and the ccd 34 regimes are transformational or incorporate ecofeminist ethics in this context is limited. 3.2 comparing approaches towards science and technology in the unfccc and unccd: do they recognise context or location? both the unccd regime and the unfccc prioritise scientific cooperation, technological assistance and transfer, and addressing the impact of environmental degradation on commercial activities. however, the way in which these areas are integrated into the regimes, and the justifications for their integration are different. these variances include the subject matter, recognition of the broader context of the environmental issue, and the type of actors involved in the negotiations. the analysis suggests that these two regimes demonstrate a sense of optimism about technological innovation and commit to a future potential where science, technology and know-how will be able to mitigate environmental degradation and enable communities to adapt to existing environmental problems, while also allowing states to continue to develop through exploitative production. this optimistic outlook on the role of science and technology fails to take into account how mechanised science and the global market economy is informed by the logical structures which view women and non-human nature as “other” and objects for exploitation, to the detriment of all communities. 3.2.1 prioritising science, technology and commerce the unfccc has prioritised the consideration of scientific, commercial, and technological implications of climate change. this is reflected within the negotiations of the unfccc and in the subsequent evolution of the regime. during the negotiations of the unfccc, austria and switzerland proposed that the commitments in the convention should promote the “development and transfer of environmentally sound technologies, and technical as well as financial assistance.”129 other parties also supported the inclusion of cooperation by “means of systematic and 129 fccc, ‘compilation of proposals related to commitments submitted by the bureau of working group i’ (15 august 1991) a/ac.237/misc.7 part a(i.1) 3-4; fccc, ‘preparation of a framework convention on climate change: set of informal papers provided by delegations, related to the preparation of a framework convention on climate change. addendum’ (22 may 1991) un doc a/ac.237/misc.1/add.1 7. the denning law journal 35 sustained research … in order to better understand the causes and impacts of climate change and the response strategies required to deal with such change.”130 these examples highlight that the need to understand the issue of climate change was directly linked to the need to prove that it was a problem that required global action to counteract. one reason for emphasising the importance of continued scientific understanding of climate change is the need to overcome obstacles in the negotiating process. the causes of climate change are deeply embedded in all aspects of the world’s economic and social activities from the developed to the developing world. these activities include transportation, industry, international trade, agriculture, fishing and forestry practice, to name a few. 131 climate change scepticism meant that there was reluctance to commit to reducing emissions because of the detrimental impact on all aspects of society, until there was certainty of the existence of climate change and that it would have a destructive effect on societies.132 state submissions during the negotiations of the unfccc indicate that scientific and technical cooperation were central features of the future climate change regime, both to enable buy-in from reluctant states, and as a way to maintain and consolidate cooperation. the climate change regime has continued to emphasise the role of science and technology as a way to consolidate cooperation within the regime. systematic observation of the climate system is seen as the “the foundation for our understanding of climate change and its associated impacts, and helps scientists determine future trends”133 while also being a way in which parties can cooperate in data gathering and systematically observing the climate system.134 similarly, article 4(1) unfccc calls for parties to “promote and cooperate in the development, application and 130 fccc, ‘compilation of proposals related to commitments, a/ac237/misc7’ (n 130) part a (i.1) 6; french republic, ‘alternative proposal for annex i (research and development and systematic observation) contained in a revised single text on the elements relating to the mechanisms (a/ac.237/misc.13) submitted by the co-chairmen of working group ii’ (17 december 1991) a/ac.237/wg.ii/crp.71(a), 2(a), 3. 131 james k sebenius, ‘designing negotiations toward a new regime: the case of global warming’ (1991) 15 int security 110, 121. 132 daniel bodansky, ‘the united nations framework convention on climate change: a commentary’ (1993) 18 yale jint’l l 451, 476. 133 fccc, ‘science in the negotiations’ (nd) <https://unfccc.int/topics/science/the-big-picture/science-in-the-negotiations> accessed 14 may 2018. 134 unfccc 1992 art 5; see also paris agreement arts 4, 7. comparing the transformative potentials of the fccc and the ccd 36 diffusion, including transfer, of technologies…that control, reduce or prevent anthropogenic emissions of greenhouse gases…”135 subsequent cop decisions and legal agreements have similarly affirmed the potential of sci-tech to provide the foundation of our understanding of the issues, and also as a way to “improve resilience to climate change and to reduce greenhouse gas emissions”.136 the focus within the climate change regime on addressing science and technology indicates that many participants in the negotiation process viewed climate change as primarily scientific and technical in nature and therefore resolvable through innovation.137 this is an optimistic view of the role of science and technology in which current, potential, and future developments will be able to “solve” or “fix” the harm that humanity has caused, while maintaining the overarching goals of economic growth, poverty eradication and sustainable development. this view is reflected in the unfccc and the kyoto protocol, which associated the promotion of sustainable development with the development and transfer of new technologies to mitigate and adapt to the effects of climate change while also ensuring the sustainable economic development of party states. 138 during the subsequent evolution of the climate change regime, cop decisions have introduced new financial and trade mechanisms to support technical development for climate change mitigation and adaptation, and article 10 of the paris agreement explicitly states that technology and scientific innovation is “critical for an effective, long-term global response to climate change and promoting economic growth and sustainable development”. 139 these examples indicate that the content of cop 135 unfccc 1992 art 4(1)(c). 136 paris agreement art 10(1). 137 e.g. fccc, ‘strengthening the commitments in article 4.2(a) and (b) policies and measures: synthesized list of policies and measures identified by annex i parties in their national communications. note by the secretariat’ (23 october 1995) annex 4-5; fccc, ‘synthesis of proposals by parties. note by the chairman’ (19 november 1996) fccc/agbm/1996/10 para 13; fccc, ‘ideas and proposals on the elements contained in paragraph 1 of the bali action plan: submissions from parties’ (27 october 2008) fccc/awglca/2008/misc.5 10-11 (argentina), 26-27 (brazil), 29. 138 e.g. unfccc 1992 arts 4(1), 5; kyoto protocol arts 2, 10(c), 10(d). 139 paris agreement art 10(5); see also cancún agreements lca preamble, paras 71, 120(a), see in general part iv(b); fccc, ‘informal note by the co-facilitators’ (13 november 2017) sbsta47.in.2; fccc, ‘initial draft of the technology framework. informal document by the chair’ (15 march 2018) sbsta48.informal.1 5. the denning law journal 37 decisions and agreements continues to associate potential technological and scientific advances that allow for continued economic growth in the context of sustainable development. the unccd also incorporates a significant number of references to scientific and technological advancements in relation to drought and desertification. under article 17, parties undertake to “promote technical and scientific cooperation in the fields of combating desertification and mitigating the effects of drought”.140 similarly, under article 18, parties undertake to “promote, finance and/or facilitate the financing of the transfer … adaptation and development of environmentally sound, economically viable and socially acceptable technologies relevant to combating desertification and/or mitigating the effects of drought”.141 thus far, the two environmental regimes demonstrate similar commitments to the promotion of technology and science as a way to ensure cooperation and to support the ability of developing countries to achieve their obligations under the convention. both the legal regimes demonstrate a level of “techno-optimism”142 by which i mean that actors within the regimes champion the potential of science and technology to repair and alleviate environmental damage.143 140 unccd 1994 art 17(1). 141 ibid art 18(1). 142 plumwood, environmental culture (n 109) 39. 143 the benefits or otherwise of technology are intimately linked with wider debates surrounding economic growth, capitalism and other social institutions. there is insufficient space in this article to fully develop this line of critique, but for recent examples of a techno-optimistic worldview, see arthur pj mol and gert spaargaren, ‘ecological modernisation theory in debate: a review’ (2000) 9 environmental politics 17; john asafu-adjaye et al, ‘an ecomodernist manifesto’ (ecomodernism, 2015) <http://www.ecomodernism.org/manifesto-english/> accessed 10 august 2018; christian kerschner et al, ‘degrowth and technology: towards feasible, viable, appropriate and convivial imaginaries’ (2018) 197 j clean prod 1619.; for literature interrogating this worldview from other fields, see eg james e krier and clayton p gillette, ‘the un-easy case for technological optimism essay’ (1985) 84 mich l rev 405; herman e daly and john b cobb, for the common good: redirecting the economy toward community, the environment, and a sustainable future (beacon press 1994); dana r fisher and william r freudenburg, ‘ecological modernization and its critics: assessing the past and looking toward the future’ (2001) 14 soc nat resour 701; herman e daly, ‘reconciling the economics of social equity and environmental sustainability’ (2002) 24 popul environ 47; christian kerschner and melf-hinrich ehlers, ‘a framework of attitudes towards technology in theory and practice’ (2016) 126 ecol econ 139; rika preiser et al, ‘navigating alternative framings of comparing the transformative potentials of the fccc and the ccd 38 ecofeminists are resistant to the narrative that science and technology can achieve this feat.144 this resistance stems from their critique of science and its associated mechanistic analysis of reality. this new definition of reality is based on assumptions of ontology, epistemology, context independence and identity that is analogous to the structure of machines. they argue that this mechanistic understanding of reality is the “legitimising ideology of industrial capitalism and its inherent ethic of the domination of nature.”145 from the scientific revolution onwards, science has viewed as “objective, value-free, context-free knowledge of the external world.” 146 like machines, order and power are integral components of this mechanical worldview and sanctioned the management of both nature and society.147 thus, nature is ripe to be transformed or altered for the needs and benefit of humanity, or more specifically, the needs of men.148 ecofeminists argue that this mechanistic worldview, which renders nature as inert and passive has completed infiltrated and reformed human consciously completely so that we rarely question its validity.149 the impact of this worldview is that nature, humans and society are seen to be made up of interchangeable parts that can be externally repaired or replaced. it allows humans to remain outside of nature, as intellectual beings who calculate the maximum satisfaction or utility of nature. plumwood argues that in this worldview, other species appear through a “reductive and human-centred framework, in a rationalised and commodified form.”150 this worldview also informs capitalist economics, which have “beatified a contractual, privileged and rationally “autonomous” master subject” who is separate from, and above nature.151 from this, it can be argued that the focus on science and technological human-environment interactions: variations on the theme of “finding nemo”’ (2017) 20 anthropocene 83; armin grunwald, ‘diverging pathways to overcoming the environmental crisis: a critique of eco-modernism from a technology assessment perspective’ (2018) 197 j clean prod 1854. 144 ariel salleh, ecofeminism as politics: nature, marx and the postmodern (2nd edn, zed books 2017). 145 carolyn merchant, radical ecology: the search for a liveable world (routledge 1992) 59. 146 ibid 55. 147 merchant (n 145) 55. 148 merchant (n 145); mary mellor, ‘women, nature and the social construction of “economic man”’ (1997) 20 ecolog econ 129. 149 merchant (n 145) 48. 150 plumwood (n 109) 27. 151 ibid. the denning law journal 39 innovation displayed in the unfccc and unccd can be interpreted as the desire to fix ecological malfunctions in order to maintain “the smooth functioning of industry and bureaucracy…” 152 which allows certain privileged forms of humanity to remain outside of nature, as intellectual beings and benefit from the embedded and embodied labour of non-human nature and women. the preceding discussion argues that the mechanistic worldview privileges objective, value-free and context-free knowledge, which has legitimised the exploitation of non-human nature and human others associated with nature. while the unccd does embody aspects of this worldview through its uncritical promotion of technological cooperation and advancement, it also includes provisions that take into account the context in which science and technology will be used by local communities and local populations. under article 17, the parties to the unccd should support research activities that address specific needs of local populations and “lead to the … implementation of solutions that improve the living standards of people in affected areas.” 153 similarly, research activities should “protect, integrate, enhance and validate traditional knowledge and local knowledge…” 154 with regards to technology development and transfer, parties shall “facilitate access … on favourable terms … to technologies most suitable to practical application for specific needs of local populations, paying special attention to the social, cultural, economic and environmental impact of such technology.” 155 it also calls for the protection of traditional and local technology, knowledge and practices.156 in addition, the connection between technology transfer and local communities” participation is also reaffirmed in article 10, which introduces the national action programmes (nap). it states that naps shall promote policies and institutional frameworks that “develop cooperation and coordination, in a spirit of partnership, between the donor community, governments at all levels, local populations and community groups, and facilitate access by local populations to appropriate information and technology.”157 these examples highlight that the focus for the use of such technology is on the local populations and that parties should take into 152 merchant (n 145) 48; plumwood (n 109) 26. 153 unccd 1994, art 17(1)(b). 154 unccd 1994, art 17(1)(c). 155 unccd 1994, art 18(1)(b). 156 ibid. 157 unccd 1994, art 10(2)(e). comparing the transformative potentials of the fccc and the ccd 40 account the context in which such technology and scientific improvements will be used. 158 3.2.2 recognising interactions between communities and technology furthermore, the subsequent evolution of the unccd indicates that there is increasing recognition of the differences in values, principles, and experiences of the environment that may alter the ways in which “other” communities perceive and use the environment. one particular example is the references to the “special relationship” between indigenous peoples and local communities and their environment. the committee for the review of the implementation of the convention (cric) acknowledged the potential cultural and socioeconomic implications of desertification and drought strategies.159 the reports include the recognition that initiatives for natural resource management should respect cultural specificities, while also “promoting the customary land tenures of local communities, [and] strengthening and legalizing their traditional institutions.” 160 similarly, more recent decisions have encouraged parties to take “action at a specific spatial scale so as to address the local ecological and socio-economic conditions in a more holistic manner.”161 these statements indicate that, in the context of the desertification regime, some parties recognise that desertification and drought strategies may marginalise some communities. by explicitly linking management strategies to cultural specificities, these 158 for feminist analysis of the ‘scientisation’ of climate change and the need to integrate public deliberation, communication and participation as vital components of responses to climate change, see karin bäckstrand, ‘civic science for sustainability: reframing the role of experts, policy-makers and citizens in environmental governance’ (2003) 3 global environ polit 24, 29; karin bäckstrand, ‘scientisation vs. civic expertise in environmental governance: ecofeminist, eco-modern and post-modern responses’ (2004) 13 environ polit 695, 696–98; for feminist criticisms of science and technology see, donna haraway, ‘situated knowledges: the science question in feminism and the privilege of partial perspective’ (1988) 14 fst 575; sandra g harding, is science multicultural? postcolonialisms, feminisms, and epistemologies (indiana university press 1998). 159 unccd, ‘report of the committee for the review of the implementation of the convention on its first session’ (17 january 2003) iccd/cric(1)/10, para 35. 160 unccd, ‘report of the committee for the review of the implementation of the convention on its fifth session’ (24 april 2007) iccd/cric(5)/11*, para 84. 161 decision 1/cop6 ‘further steps in the implementation of the convention’ (3 september 2003) iccd/cop(6)/11/add1(2003), para 9. the denning law journal 41 references take into account the differences between communities and groups. the language in the unfccc regime reflects a more dispassionate and technical approach towards embedding technology within communities. many of the cop decisions relating to technology transfer focus on epistemic communities separate and above local communities. for example, in decision 1/cp.21, the parties request the “technology executive committee and the climate technology centre and network” to “engage in the technical expert meetings and enhance their efforts to facilitate and support parties in scaling up the implementation of policies, practices and actions identified during this process.”162 the paris climate agreement similarly states that “parties share a long-term vision on the importance of fully realizing technology development and transfer in order to improve resilience to climate change.”163 these examples indicate that the climate change regime has not yet properly engaged in the ways in which the focus on technology and science is disembedded and disembodied from the ecological world and communities.164 this means that such initiatives are unlikely to be effective unless the focus becomes more embodied within the ecological world. however, recent publications indicate that unfccc institutions are integrating a more contextual approach towards science and technology implementation. for example, the gap identifies that gender-responsive climate policy should be strengthened through technology development and transfer. 165 technology and capacity building have been identified as priority areas, and will be incorporated into technology needs assessments. 166 finally, the gap also calls for submissions on the integration of gender considerations into technology and finance policies to be sex-disaggregated and provide a gender analysis.167 these examples highlight that the parties are starting to recognise that different communities, members of communities and groups use technology in different ways. therefore, understanding the context in which technology and know-how will be rolled out is central to developing effective mitigation and adaptation strategies. similarly, decision 2/cp.23 162 decision 1/cp21 adoption of the paris agreement, para 109(c)(i). 163 paris agreement, art 10(1). 164 noémi gonda, ‘climate change, “technology” and gender: “adapting women” to climate change with cooking stoves and water reservoirs’ (2016) 20 gend technol dev 149. 165 decision 3/cp23 establishment of a gender action plan, 13. 166 ibid 17. 167 ibid 18. comparing the transformative potentials of the fccc and the ccd 42 recognises the need to strengthen the technologies of local communities and indigenous peoples in a holistic and integrated manner.168 this approach, which focuses on knowledge sharing and the exchange of experiences, suggests that the unfccc may be starting to take into account the differences between communities and groups based on their specificities. the preceding discussion compared two manifestations of context within the unfccc and the unccd. the first compared how the two regimes referred to science and technology within their foundational legal texts. both regimes emphasise the importance of science and technology to “solve” or “mitigate” the consequences of environmental degradation. this demonstrated a sense of “technological optimism” that is embedded within the mechanistic worldview criticised by ecofeminism because it reduces non-human nature to something inert and dead, thus allowing its exploitation for the pursuit of industry and capitalism. this allows certain privileged groups of humanity to remain outside of nature, as enlightened, intellectual beings who benefit from the embedded and embodied labour of non-human nature and (some) women. nevertheless, compared to the unfccc, the unccd regime has recognised that science and technology development should take into account the context in which they will be used. the provisions in the unccd explicitly refer to the location, peoples and communities who will be using and adapting the technology. in this way, the regime embodies some aspects of ecofeminist ethics by recognising that the cultural and historic specificities of groups affect how the technologies are integrated and impact on their daily lives. this comparison suggests that the unccd regime has generally been more aware of context in how it integrates considerations of science and technology within its legal framework. nevertheless, both regimes demonstrate a continued affirmation that science and technology are the primary solutions to existing environmental problems, without recognising that the assumptions informing these types of knowledge are based on a view of non-human nature and associated human communities as resources and commodities to be exploited for the benefit of humankind. 3.3 attending to and respecting difference in the unfccc and the unccd the final lens of the analytical framework extends the above analysis even further and explores how the two regimes pay attention to and respect 168 decision 2/cp23 ‘local communities and indigenous peoples platform’ (17 november 2017) fccc/cp/2017/11/add1, 11. the denning law journal 43 difference between different groups. the following comparison explores how the two regimes seek to balance the often-competing interests of equity and historical responsibility for environmental degradation, economic development, and difference in capabilities in performing obligations within environmental regimes. 3.3.1 respecting difference: integrating common but differentiated responsibilities in the two regimes these tensions are embodied in the principle of common but differentiated responsibilities (cbdr) and its articulation in the climate change regime as common but differentiated responsibilities and respective capabilities (cbdrrc). cbdr recognises extra-legal differences among states” and makes “room for substantive equity in international environmental regimes.” 169 comparing how this principle has been integrated into the two environmental regimes demonstrates that both environmental regimes recognise and respect the pluralities amongst countries by taking into account economic and historically driven differences between countries. however, the extent to which more recent iterations of cbdr demonstrate the transformative potential of ecofeminist ethics is less certain. the two regimes recognise difference and pluralities of experience by acknowledging the historic responsibility for environmental degradation and the resulting economic inequalities that impair developing countries from implementing their objectives. cbdr/cbdrrc contains two dimensions: that all states are to participate and do their share to ameliorate global environmental problems (common responsibility), and second that some states are in a much better position than others to provide the resources to addresses environmental problems.170 therefore, it integrates references to historic responsibility of developed states while also basing the future contributions by developing countries on their capabilities. in doing so, it tries to reconcile the need for universal action to combat global problems and the need to be sensitive to individual states” special and relevant circumstances. the integration of differences and, to some extent, the acknowledgement of structural inequalities between states, embodies plurality because they pay attention to, and respect differences between the 169 tuula honkonen, ‘the development of the principle of common but differentiated responsibilities and its place in international environmental regimes’ in tuomas kuokkanen et al (eds), international environmental lawmaking and diplomacy: insights and overviews (routledge 2016) 160. 170 ibid 160–61. comparing the transformative potentials of the fccc and the ccd 44 parties, while acknowledging that there are still connections through the shared responsibilities to respond to environmental problems. analysing the transformative potential of cbdrrc in the unfccc cbdrrc is explicitly integrated into the climate change regime as one of its guiding principles. article 3(1) unfccc states that parties should protect the climate system “on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities” and “the developed country parties should take the lead in combating climate change and the adverse effects thereof.”171 this “radical differentiation” has been reinforced within the kyoto protocol and in the paris agreement, albeit in a different format.172 the kyoto protocol includes explicit and implied references to cbdrrc within its text.173 it differentiates between developed countries, and between developed and developing countries in terms of the targets they should achieve, 174 and also in terms of the compliance and enforcement mechanisms.175 this differentiation placed a firewall between developed and developing countries within the protocol, which has been softened in the subsequent evolution of the regime and the paris agreement.176 article 2(2) of the paris agreement reflects a more qualified understanding of differentiation. it refers to “equity and common but differentiated responsibilities and capabilities, in the light of different national circumstances.”177 in this way, differentiation can be interpreted in light of contemporary economic realities, and thus has evolved to take 171 unfccc 1992, art 3(1). 172 decision 1/cp1 (7 april 1995) fccc/cp/1995/7/add, paras 2(a), 2(b); kyoto protocol, arts 3, 5, 7, 8, 10(1); clare breidenich et al, ‘the kyoto protocol to the united nations framework convention on climate change’ (1998) 92 ajil 315; joanna depledge, ‘tracing the origins of the kyoto protocol: an article-byarticle textual history’ (25 november 2000) fccc/tp/2000/2 42. 173 kyoto protocol preamble, art 10(1); see also decision 1/cp1 the berlin mandate, paras 2(a), 2(b). 174 kyoto protocol, arts 3, 5, 7, 8. 175 decision 27/cmp1 ‘procedures and mechanisms relating to compliance under the kyoto protocol’ (9-10 december 2005) fccc/kp/cmp/2005/8/add3 (2005); bodansky et al (n 29) 167. 176 hermann e ott, ‘the kyoto protocol: unfinished business’ (1998) 40 environment: science and policy for sustainable development 16; depledge (n 173) 42. 177 paris agreement, art 2(2). the denning law journal 45 account of the concerns about cbdrrc by developed countries. 178 therefore, the differentiation embedded in the paris agreement is more nuanced, but still remains focused on the economic capacity of states. the operationalisation of the paris agreement is through the preparation, communication and maintenance of contributions towards the overall purpose of the agreement.179 these are known as “ndcs” and are expected to progress every five-year cycle.180 intended ndcs are based upon a bottom-up, pluralised response that takes into consideration the structural, institutional, economic and social differences between states which affect their ability to contribute to global climate change reductions. these obligations allow individual countries to “self” determine how their contribution reflects “its highest possible ambition” and the principle of cbdrrc. 181 by allowing individual countries to determine their contributions, the agreement recognises that developed and developing countries are starting at different points and thus allows self-differentiation between them and that differentiation will continue over successive cycles of ndcs. nevertheless, the provisions of the agreement are “designed to ensure that the regime as a whole moves toward ever more ambitious and rigorous actions.”182 therefore, at first reading, the integration of cbdrrc and differentiation between parties to the paris agreement appears to embody some ecofeminist ethics. this is because it recognises the differences between states in many different contexts and takes into account the specificities of mitigation, adaptation, finance, technology, capacity 178 fccc, ‘fccc/awglca/2008/misc5’ (n 138) submission of japan, 40-41, submission of the united states, 106; fccc, ‘ideas and proposals on the elements contained in paragraph 1 of the bali action plan: submissions from parties. addendum’ (12 november 2008) fccc/awglca/2008/misc.5/add.1 submission of australia, 73; daniel bodansky, ‘w[h]ither the kyoto protocol? durban and beyond’ (harvard project on climate agreements 2011) 4; sandrine maljean-dubois, ‘the paris agreement: a new step in the gradual evolution of differential treatment in the climate regime?’ (2016) 25 reciel; meinhard doelle, ‘the paris agreement: historic breakthrough or high stakes experiment?’ (2016) 6 climate law 1; daniel bodansky and lavanya rajamani, ‘the evolution and governance architecture of the climate change regime’ in detlef sprinz and urs luterbacher (eds), international relations and global climate change: new perspectives (2nd edn, mit press 2016) 219. 179 paris agreement, art 4(2). 180 paris agreement, art 4(3). 181 bodansky and rajamani (n 178) 234. 182 ibid 235. comparing the transformative potentials of the fccc and the ccd 46 building and transparency.183 for example, the differentiation in finance requires developed countries to provide financial resources to developing country parties and to take the lead in mobilising climate finance. 184 similarly, the agreement creates a technology framework to “provide overarching guidance to the work of the convention’s technology mechanism in promoting and facilitating enhanced action on technology development and transfer.”185 it makes support available for collaborative approaches to research and development and facilitating access to technology.186 finally, the introduction of indcs and self-differentiation allows differences between states to be recognised. at the same time, the references to climate change as a “common concern” and the inclusion of transparency recognise that states are a member of a larger community which should cooperate to address shared dangers.187 nevertheless, the extent to which this iteration of differentiation is transformative in line with ecofeminist ethics is limited. this is because the primary marker of difference in the context of climate change is “economic reality.”188 cbdrrc was originally a concept that sought to recognise the acknowledgement of industrial contributions to the global environmental crisis.189 principle 7 of the rio declaration states that in the view “of the different contributions to global environmental degradation, states have common but differentiated responsibilities.” 190 article 3(1) unfccc contains no such reference to the enhanced contributions of industrial countries to environmental degradation and placed both differentiated responsibility and respective capabilities on the same plane.191 this version of common but differentiated responsibilities indicates that the unfccc has weighted differentiation more towards economic capabilities and levels of economic development, rather than differing contributions to global degradation. 183 lavanya rajamani, ‘differentiation in a 2015 climate agreement’ [2015] center for climate and energy solutions. 184 paris agreement, art 9(1), 9(3). 185 bodansky et al (n 30) 241; paris agreement, art 10(3)-(4). 186 paris agreement, arts 10(4)-(5). 187 paris agreement, art 13. 188 fccc, ‘fccc/awglca/2008/misc5’ (n 137). 189 lavanya rajamani, ‘the reach and limits of the principle of common but differentiated responsibilities and respective capabilities in the climate change regime’ in navroz dubash (ed), handbook of climate change and india: development, politics and governance (routledge 2012) 121. 190 rio declaration 1992, principle 7. 191 rajamani (n 189) 121. the denning law journal 47 thus, the interpretation of cbdr over the evolution of the climate change has reduced its focus to economic terms rather than a more pluralised account of the historic and moral responsibility of states. the focus on “future-oriented” approaches to cbdrrc within the recent negotiations and the paris agreement reflects a pragmatic, problem solving approach towards mitigation that is based on the ability of states to pay.192 in this way, it emphasises the objective, disassociated and neutral logic that ecofeminists challenge for being ahistorical, and decontextualized. furthermore, the “future-oriented” approach to cbdrrc within the paris agreement also highlights a fundamental assumption and tension within the cbdrrc principle that “[e]nhanced capabilities are a direct result of industrialisation, which in turn resulted in the spike in ghg emissions that is causing climate change.” 193 some ecofeminists have warned that development through industrialisation is a colonisation through “capacity building” or technology transfer. 194 therefore, basing differentiation upon the future potential of states may “become a pretext for significant interventions to assist with climate mitigation that themselves could be geared towards the expansion of neo-liberal market-based approaches and the regulation that enables them.” 195 this concern highlights that even though the cbdr principle has been incorporated within the paris agreement, the way in which it has been operationalised has the potential to continue the exploitation of developing countries through policies aimed at building their capacity to undertake their obligations. this approach towards differentiation is not transformational because it does not pay attention to context nor does it respect difference. rather, it may in fact assimilate developing countries into a market as a type of economic colonisation which results in the stated intent of the law being undermined or rendered ineffective. 192 jutta brunnée and charlotte streck, ‘the unfccc as a negotiation forum: towards common but more differentiated responsibilities’ (2013) 13 climate policy 589, 592. 193 rajamani (n 189) 121. 194 vandana shiva, ‘development as a new project of western patriarchy’ in irene diamond and gloria feman orenstein (eds), reweaving the world: the emergence of ecofeminism (sierra club books 1990); vandana shiva, ‘special report: golden rice and neem: biopatents and the appropriation of women’s environmental knowledge’ (2001) 29 women’s stud q 12. 195 julia dehn, ‘carbon colonialism or climate justice? interrogating the international climate regime from a twail perspective’ (2016) 33 windsor yrbk acc jus 129, 141. comparing the transformative potentials of the fccc and the ccd 48 analysing how “difference” is embedded in the unccd unlike the unfccc, the unccd does not explicitly refer to the principle of cbdr. instead, the convention embeds differentiation into its overarching legal framework.196 it does this by attributing different state obligations to developed and developing countries in order to acknowledge their differences and relative asymmetries in levels of economic and technological development. at the same time, the unccd recognises that desertification and drought are problems of a global dimension that should be addressed at the national or local scale.197 however, as will be explored below, the success of this more diffuse approach towards differentiation has hindered its operationalisation. the implicit recognition of differences between developed and developing countries demonstrates how plurality is incorporated with the legal framework of the convention. for example, the convention differentiates between “general obligations” and more targeted obligations which outline additional obligations for developed country parties.198 it also recognises the geographical, cultural and social differences between different regions across the globe by incorporating four regional annexes. these may be considered an expression of differentiation because they include additional provisions that are relevant for the experiences of countries in different geographical locations that have particular economic, social, cultural and geographic conditions. the regional implementation annex for africa outlines the purpose of the annex to “provide for the efficient and practical implementation of the convention to address conditions specific to africa.”199 it outlines what these conditions are and makes reference to the “difficult socio-economic conditions, exacerbated by deteriorating and fluctuating terms of trade, external indebtedness and political instability, which induce internal, regional and international migrations.”200 the other annexes to the unccd also refer to the broader problems that their regions face as a way to contextualise the differentiation between states and the need for plural 196 willem pieter pauw et al, ‘different perspectives on differentiated responsibilities in international negotiations: a state-of-the-art review of the notion of common but differentiated responsibilities in international negotiations’ (discussion paper 6/2014, german development institute, 2014) 34. 197 e.g. unccd 1994 preamble. 198 ibid arts 4, 6. 199 unccd 1994 annex i (africa) art 2(b). 200 ibid art 3(e). the denning law journal 49 responses to drought and desertification.201 for example, the annex for latin america and the caribbean directly associate the use of “unsustainable practices … as a result of complex interactions among physical, biological, political, social, cultural and economic factors, including international economic factors such as external indebtedness, deteriorating terms of trade and trade practices which affect markets for agricultural, fishery and forestry products”202 this sub-paragraph sets out that previous colonial and other exploitative practices by developed states has disproportionately affected the ability of latin american and caribbean countries to address drought and desertification. it also emphasises that factors such as deteriorating terms of trade, political and social factors all cause unsustainable development practices and are the result of these practices. thus, this provision summarises the criticisms of development and the global market economy that maintain and reinforces difference to the detriment of some states. similar provisions are also found in the regional annex for asia. this annex identifies the “the significant impact of conditions in the world economy and social problems such as poverty, poor health and nutrition, lack of food security, migration, displaced persons and demographic dynamics.”203 once again, the annex emphasises the external factors that cause and maintain differences between countries and affect the ability for states to respond to global environmental problems. therefore, the inclusion of these annexes is transformative because it recognises difference is informed by the historical, social and political contexts of each country, which is in turn affected differently by the broader environmental problems of drought and desertification. however, the unccd has had relatively limited success in operationalising the differentiated obligations.204 one reason for this is that the language of differentiation is so diffuse within the text because it has been embedded within the entire legal framework of the convention. this means that it is harder for affected developing country parties to extract the differential language within the convention and turn it into activities and 201 unccd 1994 annex ii (asia) art 2; unccd 1994, annex iii (latin american and caribbean) art 2; unccd 1994, annex iv (northern mediterranean) art 2. 202 unccd 1994, annex iii (latin american and caribbean) art 2(b). 203 unccd 1994 annex ii (asia), art 2. 204 pauw et al (n 196) 35. comparing the transformative potentials of the fccc and the ccd 50 targets to be implemented. another reason is that the global north has traditionally seen the issue of desertification as more regional in scope and has less priority for them.205 in addition, the diffuse nature of differentiation means that it is difficult to measure progress and analyse how differentiating between different countries and/or regions has been successful (or not). furthermore, inclusion of socioeconomic, cultural and other factors in the definition of desertification means that it is difficult to measure progress through scientific indicators, and other quantitative and qualitative measures.206 coupled with the difficulties in determining the nature and extent of desertification, this is “among the causes of the difficult political life of the convention.” 207 nevertheless, the unccd offers transformative potential because it recognises that interactions between poverty, environment and natural resources can be understood at the local level, and as such should be resolved through activities at the local, national, regional and international levels.208 the above discussion has compared the integration of differentiation into the unfccc and the unccd, and evaluated the effectiveness of its operationalisation in the unccd. it argued that cbdr/cbdrrc has the transformative potential to recognise and respect difference between countries both in terms of their contribution to environmental degradation and their corresponding ability to address this degradation. however, the analysis of the application of differentiation between countries in the climate change regime indicates that it has been reduced to focusing on the economic ability or future economic potential of countries rather than a respecting of difference and the broader historical, political and social context of the causes and consequences of those differences. in particular, the focus of “future-oriented” determination of difference in the paris agreement reduces differentiation to objective, disassociated and decontextualized measurements, a far cry from ecofeminist ethics. the treatment of differentiation in the unccd suggests that the negotiators attempted to develop a more transformative approach and one that is embedded in the broader historical context. the unccd also attempts to incorporate plurality at the local, national and international 205 philippe cullet, ‘differential treatment in environmental law: addressing critiques and conceptualizing the next steps’ (2016) 5 tel 305, 312. 206 zafar adeel, janos bogardi and christopher braeuel, ‘overcoming one of the greatest environmental challenges of our times: re-thinking policies to cope with desertification’ (united nations university 2007) 21. 207 elisa morgera, ‘land’ in elisa morgera and kati kulovesi (eds), research handbook on international law and natural resources (edward elgar 2016) 150; see also cullet (n 205) 312. 208 adeel et al (n 206) 22. the denning law journal 51 levels, thus enabling differentiation to be tailored depending on the specific context of different communities and locations. this was reflected in the overarching structure of the convention, and in the incorporation of the regional annexes which pay attention to the particularities of the different regions. for these reasons, the unccd has integrated a more plural approach towards differentiation and cbdrrc which has the potential to be transformative. nevertheless, the operationalisation of cbdrrc and differentiation within the unccd has been more circumspect and suggests that some developed country parties to the convention are unwilling to embrace its potential. 4 conclusion this article has compared the underlying values, assumptions and beliefs that inform the unccd and unfccc regimes through an ecofeminist analytical framework. this framework consists of three intersectional lenses which aggregate the eight boundary conditions to karen warren’s ecofeminist ethics. to recap, these lenses were termed “inclusivity”, “contextuality” and “structural pluralism”. these three lenses enabled a critique of the principles, obligations and rules within the two regimes. the comparison between unfccc and unccd through the “inclusivity” lens focused on the participation by different actors and the integration of ecosystem services. this comparison indicated that the participation by marginalised communities within the two regimes differed. in particular, the unfccc has been slow to support the participation by women in the climate change regime. it is only recently that the unfccc has incorporated gender recognition or gender mainstreaming into its policy-making process. this has been compounded by the relatively low participation by women in its negotiations. compared to the unfccc, the unccd has been more “inclusive” since the start. as the unccd has been described as a “sustainable development convention”, this more inclusive approach is not surprising as the principle of participation is an integral aspect to sustainable development which underpins the convention. however, the analysis also found that the unfccc has not engaged with the transformative potential of the participation by women. the analysis of the participatory provisions and the recently adopted gender action program revealed that the unfccc has not engaged with the underlying reasons why women and other marginalised communities are disproportionately affected, what that says about human/non-human relationships understood within the regime and what this indicates about current strategies towards responding to these interconnected issues. by comparing the transformative potentials of the fccc and the ccd 52 doing so, the regime has approached the participation, climate change and women nexus in a superficial way that inhibits the transformative potential of the regime. by contrast, the unccd has adopted a gender programme of action. this incorporates a more transformative approach towards gender. this is because it starts from a position that recognises the structural barriers faced by women, and acknowledges the fact that women are embedded within the material world. because of this, the gpa concentrates on the local level and on developing actions that will address the barriers and exclusions faced by women there. as the gpa approaches inequalities from a social reproductive perspective, it has adopted a critical and nuanced understanding that takes into account the structural, conceptual and material barriers to participation faced by women. this indicates a greater engagement with the problems faced by women experiencing drought and desertification. however, both regimes continue to position humanity as the central consideration for state obligations. this incorporates anthropocentric and androcentric perspectives towards non-human nature within both regimes. the introduction of neo-liberal market mechanisms, such as payment for ecosystem services, and the commodification of nature maintains the perception of humanity as separate and disembedded from nature. this means that neither regime has incorporated particularly transformational approaches towards our position as humans within an ecological community. this finding was reaffirmed by the ways in which science and technology underpin the two regimes. the analysis through the “contextual” lens found that both regimes approach science and technology as potential solutions to environmental degradation. this technological optimism is regressive and could maintain the current exploitative approach towards environmental problem solving because it reduces non-human nature to something inert and dead, thus allowing its exploitation for the pursuit of industry and capitalism. the final lens focused on the approaches towards differentiation within the two regimes and how they integrated the principle of cbdr/cbdrrc. while the principle of cbdrrc has transformative potential to recognise and respect difference, the way in which it has been embedded within the climate change regime indicates that it has been reduced to focusing on the economic ability or future economic potential of countries rather than a respecting of differences and the broader historical, political and social context of the causes and consequences of those differences. on the other hand, the unccd has implicitly embedded differentiation within the structure and content of the convention. this approach has transformative potential because of its pluralised and contextual understanding of the denning law journal 53 difference which is also based on history. nevertheless, the operationalisation of cbdrrc and differentiation within the unccd has been more circumspect and suggests that some parties to the convention are unwilling to embrace its potential. above all, this comparison highlights that there are some aspects of both regimes that have transformative potential. the unccd comes across at first reading as a regime that embodies more aspects of ecofeminist ethics, while at the same time, being still somewhat regressive. however, even though it may have the trappings of a truly transformative and successful regime, the fact that it addresses an environmental issue that has not, as yet, been recognised as a global issue (or one that affects not just developing countries), means that its potential is more circumscribed. this may be unintentional, or it may be implicitly recognising the potential of the regime, to which developed countries may be resistant. nevertheless, the underlying narrative of both these regimes continues to affirm an ideological perspective that disembeds humans from their surrounding ecosystem while at the same time commodifying nature to protect it. the continued commitment to neoliberal market mechanisms that maintain the denial of the body and the material reality of our reliance upon and integration within non-human nature means that, irrespective of other transformative potentials within these two regimes, each remains wedded to the ideological commitments that contribute towards environmental degradation. they also remain wedded to paradigms that marginalise and exploit those communities and bodies which are traditionally associated with nature. 25 denning law journal 2020 vol 32 p 25-49 ‘not my employee, not my liability’: a review of the law of vicarious liability, its april 2020 supreme court airing, and its relevance to the equestrian industry and other small businesses. carrie de silva* * principal lecturer in law and taxation, harper adams university,  01952 815304 / 07583 144622, e-mail: cdesilva@harper-adams.ac.uk 1 [2020] uksc 12. abstract in april 2020, the supreme court in wm morrison supermarkets plc v various claimants [2020] and barclays bank plc v various claimants [2020] overturned the decisions of the court of appeal in applying the law regarding vicarious liability of employees and others (and deciding in both cases that the defendant companies were not liable for the acts in question). the scope of responsibilities which the employment relationship brings, together with an awareness among many businesses of the classification worker, along with the more familiar employed/ self-employed status, makes an examination of the outcomes and potential impact of these cases of wide, practical interest for those running businesses, large or small. the review concluded that there had been no dramatic change in the law but that the cases provide a measure of comfort to employers in something of a common-sense view being taken as to the scope of vicarious liability. they also add to the body of case law, helping to ensure that future issues can more clearly be reasoned out of court, with the detailed steer on the application of legal principles which a supreme court judgment provides. key words: vicarious liability, employee, akin to employee, worker introduction in april 2020, the supreme court re-visited and clarified the law of vicarious liability in two cases: one involving an employee (wm morrison supermarkets plc v various claimants1) and one involving someone not employed by the organisation against whom claims were being considered (barclays bank plc v various 26 ‘not my employee, not my liability’: a review of the law of vicarious liability, its april 2020 supreme court airing claimants2). in both cases, the decisions of the court of appeal were overturned. this paper reviews the development of the law and key principles to enable the cases to be set in context, with a conclusion on possible implications and practical application. first, though, a consideration of why the operation of vicarious liability is particularly worthy of understanding by equestrian operations and any other businesses who work with a range of freelance/sub-contractor personnel. particular relevance for equestrian businesses there is, of course, nothing expressly equestrian about the principle of vicarious liability but it is particularly pertinent because of the employment status of many working in the sector. all employers need to be aware of the law in this area in terms of the significance of becoming an employer (along with a gamut of employment requirements such as insurance, salary, pension and other consequences). if the detail is not always understood, most appreciate that an employer has considerable responsibilities and, ideally, would access advice accordingly, preferably from legal and financial professionals but at the very least, through ‘.gov.uk’, or other authoritative online information.3 what is less well known, and is a common situation in the equestrian industry, is that there are two circumstances where there might be vicarious liability for those who are not treated by the business as employees. firstly, those labelled self-employed may, in fact, be deemed by the courts to be employees in the face of a claim. this is the most likely point of relevance to smes,4 equestrian or otherwise. secondly, (although far less common) even where the court does not override and re-designate the existing relationship of the parties, it may be deemed that the relationship is so close that it is, for the purposes of vicarious liability, akin to employment.5 what is vicarious liability? the concept of vicarious liability will be known to most readers: the legal principle that someone with no fault (normally an employer) can be liable for the wrongs of 2 [2020] uksc 13. 3 acas would be particularly recommended for all employment matters: www.acas.org.uk. 4 sme = small and medium-sized enterprises, per european commission recommendation c(2003) 1422, article 2 – small enterprises have < 50 employees and/or a balance sheet of ≤ € 10 million, so the majority of equestrian businesses are small enterprises under this standard business categorisation. 5 as discussed below; see also a silink and d ryan, ‘vicarious liability for independent contractors’ (2018) 77 clj 458. the denning law journal 27 another, ‘vicarious’ stemming from the latin vicarius meaning ‘substitute’.6 lord dyson in mohamud v wm morrison supermarkets plc noted the difficulties of summing up the law in a simple and coherent form opining: ‘to search for certainty and precision in vicarious liability is to undertake a quest for a chimaera.’7 the lack of certainty and precision comes from the infinite number of possible human relationships and situations, but let that not deter us from gleaning a framework of principle. the concept does not appear in the early histories and treatises on english law8 although sir john baker9 in the authoritative sources of english legal history10 cites, among other early cases, beaulieu v finglam11 where markham j noted: ‘if my servant or lodger puts a candle on the wall and the candle falls into the straw and burns the whole house, and also my neighbour’s house, in this case i shall answer to my neighbour for the damage which he has suffered.’12 notwithstanding these medieval13 cases, in 191614 harold laski characterises a string of early modern15 decisions (generally regarded as foundation of the 6 w smith and td hall, a copious and critical english-latin dictionary (first published 1871) <www.latinitium.com/latin-dictionaries> accessed 24 may 2020. 7 [2016] uksc 11 [54]. 8 such as henry bracton (before c1235) de legibus et consuetudinibus angliae (on the laws and customs of england), or sir edward coke (from 1628) institutes of the lawes of england. henry bracton (aka henry de bracton, and variants, c1210 -68) produced an influential collation of law, drawing on english custom and roman sources. sir edward coke (1552–1634), english jurist, lawyer and politician, variously solicitor general and attorney general of england and wales (under appointment of elizabeth i) and chief justice of the court of common pleas and the king’s bench. 9 john baker (b1944), legal historian and downing professor of the law of england, university of cambridge (1998–2011). 10 john baker, baker and milsom sources of english legal history: private law to 1750 (2nd edn, oup 2010). 11 (1401) b & m 557. 12 baker (n 10) 610–11. 13 from the 5th to the late 15th centuries. 14 hj laski, ‘the basis of vicarious liability’ (1916) 2 yale lj 105. professor harold laski (1893–1950), lecturer in politics and economics at the london school of economics from 1926 to 1950 (and before that at mcgill, canada, harvard and yale), latterly aligned to marxism. active in the labour party and, perhaps, most influential in the developing politics of post-colonial india and a number of african nations. 15 early modern being the period from the end of the middle ages (late 15th century) to the late 18th century. 28 ‘not my employee, not my liability’: a review of the law of vicarious liability, its april 2020 supreme court airing principle today) as ‘bearing the impress of a single, vivid personality’16 in the form of sir john holt,17 lord chief justice of england from 1689 to his death in 1710. sir john holt’s decisions18 included turberville v stamp, where a fire lit by an employee damaged neighbouring property;19 and sir robert wayland’s case, regarding a servant cheating on tradesmen for whom the master had provided monies to pay, where holt observed the truism that ‘the master at his peril ought to take care what servant he employs; and it is more reasonable that he should suffer for the cheats of his servant than strangers and tradesmen’.20 in hern v nicolls, an overseas factor (agent) falsely represented the quality of silk being purchased.21 in finding the employer liable for the wrong, policy thinking can clearly be seen in holt’s observation: ‘seeing somebody must be a loser by this deceit, it is more reasonable that he that employs and puts a trust and confidence in the deceiver should be a loser, than a stranger.’22 and in middleton v fowler, holt distinguished the situation where an employee acted outside their authority and was not in any way carrying out their authorised work from a case where a coachman accepted a fee for looking after luggage (which was not part of his driving job).23 the employer was sued when the luggage was lost. holt noted that ‘…no master is chargeable with the acts of his servant, but [i.e. only] when he acts in execution of the authority given by his master, and then the act of the servant is the act of the master’.24 the thinking was, and is, that an employer (as a matter of fact) causes the risk, that is the situation in which the wrong was executed, and (as a matter of policy) is better placed to compensate the victim, particularly through insurance. the relationship between law and policy is referred to in the 2020 supreme court cases and will be considered further below. it may be noted that the early cases fell short of ascribing vicarious liability for criminal matters, per rex v huggins and barnes, where an inmate of fleet prison died due to the conditions and neglect of the gaoler, barnes, and a charge of murder 16 laski (n 14) 106. 17 1642–1710. 18 thomas farresley, a report of all the cases determined by sir john holt, knt, from 1688 to 1710 (first published 1736, forgotten books 2016) <www.forgottenbooks.com/ en/books/areportofallthecasesdeterminedbysirjohnholtkntfrom1688to1710during whichtimehewas_11285152> accessed 26 may 2020. (some pages removed from free access version.) 19 (1697) 1ld raym 264 (kb). 20 (1707) 3 salk 234. 21 (1708) 1 salk 289. 22 ibid. 23 (1699) 1 salk 282. 24 ibid. the denning law journal 29 was brought against both the gaoler and the prison warden (huggins).25 as against the warden, although it was acknowledged that he ‘had the care and custody of the prisoners’ it was found that a principal or employer could only be criminally liable if the ‘deputy’ acted by ‘command, consent or privity of the principal’.26 this was superseded and employers can most certainly be liable for criminal, as well as civil, wrongs.27 laski’s paper explored both the development and policy of vicarious liability through to 1916, in england and the united states of america, and couches it in terms of the law developing to reflect society from the supremacy of the individual property holder and paternalism of medieval times, to the social and commercial community of interdependence of an industrial society, aiming ostensibly, at the ‘maximum public good’28. he concludes his piece (unsurprisingly, given the author) with the welfare of society being the ultimate aim of the development and application of legal principles and this can be seen in some,29 although by no means all,30 of the 21st century developments explored below. laski was writing at the same time as another expansive commentator on the matter, thomas baty,31 who compared vicarious liability to a upas tree (antiaris toxicaria), the source of the poison for arrows.32 this rather dramatic allusion was picked up in the title of warren swain’s33 recent review of the development of the law,34 which particularly dissects the distinction between strict liability for another’s wrong (the basis of vicarious liability today) and the master’s tort theory (whereby the master, or employer, is deemed to be primarily liable because the employee’s acts are said to be the act of the master). the idea of no-fault, strict, liability for another’s wrong was difficult to reason when tort was largely couched in terms of a 25 (1730) 2 ld raym 1574 (kb). 26 ibid. 27 racz v home office [1994] 2 ac 45. 28 laski (n 14) 112. 29 such as lister v hesley hall ltd [2001] ukhl 22. 30 perhaps barclays bank plc v various claimants [2020] itself. 31 thomas baty (1869–1954) was a british legal academic who worked as legal adviser, largely on international matters, for the imperial japanese government from 1916 for the rest of his career, dying in japan in 1954. he also wrote novels under the pseudonym irene clyde. 32 t baty, vicarious liability: a short history of the liability of employers, principals, partners, associations and trade-union members, with a chapter on the laws of scotland and foreign states (oup 1916). 33 professor of law at the university of auckland, new zealand. 34 w swain, ‘a historical examination of vicarious liability: a “veritable upas tree”?’ (2019) 78 clj 640. 30 ‘not my employee, not my liability’: a review of the law of vicarious liability, its april 2020 supreme court airing ‘personal moral shortcoming’.35 the conceptual difficulties surrounding tortious liability in the absence of fault had, in fact, been addressed in roman law36 and remain addressed in civil jurisdictions with the idea of quasi-delict.37 there has been academic consideration of the matter38 over the years and professor lakshman marasinghe39 suggests the logic of carving out a class of common law obligations of 35 dj ibbitson, a historical introduction to the law of obligation (oup 2000) 196. professor david ibbitson, regius professor of civil law, university of cambridge. 36 institutes of justinian, 3.12.2. a sixth century collation of roman law under justinian i (c482–565, emperor from 527–65), largely but not exclusively based on the earlier institutes of gaius (by the jurist gaius, 130-80). gaius did not mention the principle of vicarious liability. 37 as explored by professor winfield in chapter x (tort and quasi-delict) of his famous series of lectures as tagore professor of law* at the university of calcutta (ph winfield, the province of the law of tort (cup 1931)). professor percy winfield (1878–1953) was rouse ball professor of english law at cambridge from 1928–43. *bestowed by and named for prasanna kumar tagore (1801–86), learned in both western and hindu law. see further mark f grady, ‘the negligence dualism’ (2009) ucla school of law, law and economics research paper, (09–02). mark grady, professor of law and director of the center for law and economics, ucla school of law. and see johnson’s consideration of vicarious liability in a moral and theological context in his diary of 3 june 1781 in james boswell, the life of samuel johnson (first published 1791) 512–3 <https://books.google.co.uk/books?id=2nkeaaaayaaj&pg=pa512&dq =samuel+johnson+june+3+1781+vicarious&hl=en&sa=x&ved=0ahukewibzif bos_ pahudifwkhqmjcr8q6aeikdaa#v=onepage&q=samuel%20johnson%20june%20 3%201781%20vicarious&f=false> accessed 25 may 2020. samuel johnson (1709–84), prolific writer in many genres, factual and fiction, and with a particularly enduring legacy as a lexicographer. 38 for example, by al weitz, ‘contractor duty to third parties not in privity: a quasitort solution to the vexing problem of victims of nonfeasance’ (1997) 63(2) brooklyn law review 593, calling for a re-statement of the law rather than apparent ‘exceptions’ the requirement of fault or lack of care. andrew l weitz, us attorney currently with weitz pascale, www.weitzpascale.com. after a phd in learning theory, he studied law and was on the editorial team of the brooklyn law review whilst at brooklyn law school. 39 sri lankan academic, variously chairman of the law commission of sri lanka and legal director of the secretariat for coordinating the peace process during the sri lankan civil war (2002–09), and emeritus professor of law at the canadian university of windsor. the denning law journal 31 quasi-tort, borrowed from the roman/civil law principle of quasi-delict, to avoid the artificiality of no-fault torts. he points to the step in that direction taken in rylands v fletcher in the famous judgment of blackburn j in the court of exchequer chamber,40 approved in the house of lords,41 in basing a new head of strict liability on the roman sic uti suo ut non laedat alienum (‘use your own property so that it will not harm the property of another’).42 this was not strict liability in the complete absence of fault, but strict liability based on an underlying obligation due to prior decisions (land use, in the case of rylands, engaging in a relationship and activity, in the case of vicarious liability). as society evolved and corporate defendants became prevalent, there was a further shift towards public policy and the compensation of victims, as opposed to the idea of a stranglehold of tight legal theory in the face of a perceived moral obligation. this commercial and moral view of legal development, coupled with the necessary constraints of legal theory, was espoused on both sides of the atlantic, by such as oliver wendell holmes jr.43 the changing mores in society influencing legal development can be seen in a close relative to the law of vicarious liability to third parties, that of an employer’s liability to employees who are harmed by colleagues. the old law of common employment44 was such that employers were not liable for injuries to workers caused by colleagues as workers were said to have accepted the risks of employment. this harsh principle was expressly overturned by section 1 of the law reform (personal injuries) act 1948,45 although the idea of personal responsibility, with the law mirroring a 40 (1866) lr 1 ex 265. 41 [1868] ukhl 1. 42 l marasinghe, ‘towards quasi-tort in the common law?’ in kd cooper-stephenson and e gibson (eds), tort theory (capitus university publications 1993) 342. 43 ow holmes jnr, the common law (first published 1881) <www.gutenberg.org/ files/2449/2449-h/2449-h.htm> accessed 15 may 2020; ow holmes jnr, ‘the path of law’ (1897) 10 harvard law review 457. oliver wendell holmes jr (1841–1935), prolific jurist and united states supreme court justice, 1902–32. 44 as generally thought to be established in priestley v fowler (1837) 150 er 1030 (ex ch); hutchinson v york, newcastle & berwick railway co. (1850) 5 ex 343 (ct com pl); and most authoritatively stated by lord cranworth in bartonshill coal company v reid (1858) 3 macq 282 (hl). for further on priestley see, ‘a case of first impression: priestley v fowler in awb simpson, leading cases in the common law (oup 1995) ch 5; ma stein, ‘priestley v fowler (1837) and the emerging tort of negligence’ (2002) 44 boston college law review 689. 45 with application to england, wales and scotland and law reform (personal injuries) act (northern ireland) 1948. 32 ‘not my employee, not my liability’: a review of the law of vicarious liability, its april 2020 supreme court airing moral obligation, is still central to primary liability in tort as perhaps most famously expressed in lord atkin’s ‘neighbour test’ in donoghue v stevenson.46 his thinking was influenced by what, for him, was the christian47 precept of ‘whatsoever ye would that men should do to you, do ye even so to them’.48 the idea, which lord atkin49 had rehearsed well before his seminal judgment in donoghue,50 clearly embraces the centrality of personal responsibility and a moral code in the interaction between individuals. but the policy of also needing to provide the victim with a meaningful source of recompense (alongside the core element of personal responsibility) is highlighted in all modern standard texts, and professor john fleming’s51 couching of the issue: ‘... the social interest in furnishing an innocent tort victim with recourse against a financially responsible defendant’52 has been quoted in a number of recent cases.53 46 [1932] ukhl 100. 47 this sentiment, often termed ‘the golden rule’ is found in some form in most major religions and cultures. see jeffery wattles, the golden rule (oup 1996). 48 matthew 7:12 and, similarly, luke 6:31, the holy bible (kjv, first published 1611). 49 james, baron atkin (1867–1944), australian born but english educated, sitting in the house of lords from 1928–44. 50 in papers such as lord atkin, ‘law as an educational subject’ (1932) journal of society of public teachers of law 27, and various speeches, as noted in matthew chapman, the snail and the ginger beer: the singular case of donoghue v stevenson (wildy, simmonds & hill publishing ltd 2010). 51 professor john g fleming (1919–97), german born, educated in england from the age of 15. the first edition of his seminal book on torts was published in 1957. he emigrated to australia in 1949 and on to berkeley, california, in 1961, where he spent the rest of his working life, (rm buxbaum, ‘john g fleming, 1919–1997’ (1997) 45(4) the american journal of comparative law 645). 52 jg fleming, the law of torts (9th edn, 1998) 409; (now c sapideen and p vines (eds), fleming’s the law of torts (10th edn, thompson reuters 2011)). the choice of fleming for repeated quotation may be summed up in waddam’s assessment of fleming’s textbook on tort (in his review of peter cane and jane stapleton, the law of obligations: essays in celebration of john fleming (oup 1998): ‘… coming close to realizing the ideal of legal academic writing: clear, concise, accurate, thorough, thoughtful, coherent, with a judicious balance between practice and theory, and between description and prescription’; sm waddams, ‘peter cane and jane stapleton, the law of obligations: essays in celebration of john fleming’ (2000) 63(3) mlr 464. 53 see majrowski v guy’s and st thomas’s nhs trust [2005] ewca civ 251 [28]; woodland v essex county council [2012] ewca civ 239 [6]; (both majrowski and woodland being appealed to the supreme court). the denning law journal 33 essence of the modern law there are, then, two principal requisites for vicarious liability to operate: the proximity between the parties, and the proximity between the wrong and authorised work. the relationship between the parties there must be a proximate relationship between the wrongdoer and the posited defendant. this is normally an employment relationship but the two more problematic situations are, as noted, those treated as self-employed but deemed by the courts to be employees, and those who are acknowledged by the courts not to be employees but deemed to be in a relationship ‘akin’ to employment for these purposes. there is also the relatively recent complication of the designation ‘worker’. if someone is clearly an employee then there is a measure of clarity, on that question at least. that there is no vicarious liability for the wrongs of sub-contractors has been set out at least since quarman v burnett54 and repeated many times since.55 in kafagi v jbw group ltd56 it was argued, on appeal, that various claimants v catholic child welfare society57 (generally known as the christian brothers case) and cox v ministry of justice58 were such that the trial judge was wrong in deciding that as wrong-doers were not employees, then there could be no vicarious liability of the party who engaged them. but it was also found that the law had not, in fact, altered to simply absorb non-employees as being covered, and only in atypical cases where there was the finding of a relationship ‘akin’ to employment could there be vicarious liability for a sub-contractor (and kafagi was not such a case). singh lj noted: ‘… it is important to note that this development has not undermined the conventional distinction between a contract of employment and a contract for services, which continues to be relevant in the vast majority of situations.’59 54 (1840) 6 m & w 499 (ct exch). although before that, the position was more fluid: w cornish and g clark, law and society in england 1750–1950 (sweet & maxwell 1989); p mitchell, a history of tort law 1900–1950 (cup 2015). 55 see, for example, salisbury v woodland [1969] ewca civ 1; d & f estates ltd v church commissioners [1989] ac 177 (hl). 56 [2018] ewca civ 1157. 57 [2012] uksc 56. 58 [2016] uksc 10. 59 [2018] ewca civ 1157 [21]. 34 ‘not my employee, not my liability’: a review of the law of vicarious liability, its april 2020 supreme court airing but who is an employee, as opposed to self-employed? whilst this paper is looking at whether there can be vicarious liability for another’s wrongs, the deeming of someone hitherto treated as self-employed as being employed is most commonly encountered with regard to taxation or health and safety. the final categorisation will depend on the facts of each case but key features for employment status are mutuality of obligation,60 a sufficient measure of control61 and the integration test.62 these factors are now embraced and extended in what has been termed the economic reality test.63 control is manifest in factors such as the provision of one’s own equipment and materials, choice of timing and ability to substitute personnel, which would all point towards self-employment. integration relates to whether a person is autonomous and appears to be in business on their own account, or is an integral part of an employer’s business, with the employer bearing the economic risk. but the matter is now very much considered holistically, as highlighted recently in hmrc v professional game match officials ltd64 and varnish v british cycling federation65 where the tax and chancery chamber and employment appeal tribunal, respectively, provided useful reviews of employment status. in short, the position is far from formulaic. in some situations, there may be little choice of timing, how a job is done or the possibility of substitution whilst still being a genuine situation of self-employment. conversely, there may be an overt, contractual right of substitution of personnel (traditionally taken as fatal to employed status66) but, on the facts, a clear finding of employed 60 collins v hertfordshire county council [1947] 1 all er 633 (kbd) (hibbert j): ‘in a contract [for services, i.e. self-employment] … the master can order or require what is to be done, while in [a contract of service, i.e. employment] … he can not only order or require what is to be done but how it shall be done’; see also nethermere (st neots) ltd v minister of social security [1984] icr 612 (ca). 61 ready mixed concrete (south east) ltd v minister of pensions and national insurance [1968] 2 qb 497, 515. a high court case but one with authority of reasoning which has endured, mackenna j drawing on judgments from the us, canada, australia and ireland, as well as england. 62 see stevenson, jordan & harrison ltd v macdonald & evans [1952] 1 tlr 101 (ca) (lord denning): ‘…under a contract of service, a man is employed as part of the business and his work is done as an integral part of the business; whereas under a contract for services his work, although done for the business, is not integrated into it but is only accessory to it.’ 63 autoclenz v belcher [2011] uksc 14. 64 [2020] ukut 0147 (tcc). 65 [2020] ukeat/0022/20/la (v). 66 express & echo publications ltd v tanton [1999] ewca civ 949 (peter gibson lj): ‘that [a right of substitution] is a remarkable clause to find in a contract of service’. the denning law journal 35 status.67 in hall (inspector of taxes) v lorimer,68 nolan lj quoted mummery j from the court below: the object of the exercise is to paint a picture from the accumulation of detail. the overall effect can only be appreciated by standing back from the detailed picture …, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. it is a matter of evaluation of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. not all details are of equal weight or importance in any given situation. the details may also vary in importance from one situation to another.69 who might be in a relationship ‘akin’ to employment? this interpretation of relationships has largely been found in non-commercial settings such as cases involving religious organisations,70 prison71 or foster care.72 in jge v english province of our lady of charity and portsmouth roman catholic diocesan trust73, ward lj usefully referred to cooke j’s form of wording74 in market investigations ltd v minister of social security: ‘the fundamental test to be applied is this: is the person who has engaged himself to perform these services performing them as a person in business on his own account?’.75 and what of the designation ‘worker’? the classification ‘worker’76 was particularly discussed (not for the first time, of course) in the employment law cases of bates van winkelhof v clyde and co llp77 67 autoclenz (n 63). 68 [1993] ewca civ 25. 69 hall (inspector of taxes) v lorimer (1992) 1 wlr 939, 944. 70 see the christian brothers case (n 57); jge v english province of our lady of charity and portsmouth roman catholic diocesan trust [2012] ewca 938 (sometimes termed e); watchtower bible and tract society [2015] ewhc 1722 (qb). 71 cox (n 58) where a prison, rather the ministry of justice, was liable for the wrongs of a prisoner (clearly not an employee of the prison). 72 armes v nottinghamshire county council [2017] uksc 60. 73 e (n 70), where a trust appointed a priest but was not his employer, the trust was held to have a relationship sufficiently ‘akin to employment’ as to allow vicarious liability. 74 e (n 70) [67]. 75 [1969] 2 qb 173 (qb) 184. 76 first seen in s 230(3) employment rights act 1996. 77 [2014] uksc 32. 36 ‘not my employee, not my liability’: a review of the law of vicarious liability, its april 2020 supreme court airing and pimlico plumbers ltd v smith.78 the category ascribes some employment rights whilst falling short of full employment status. leading cases considered in pimlico plumbers took the overriding factors as being whether the worker was in business on their own account, taking the commercial risk79 or whether the worker was in a position of subordination,80 a vital strand echoing down from sir john holt discussing the servant working for his master’s benefit in turberville although it is more nuanced in that sub-contractors will obviously be working for their engager’s benefit, as well as their own, and this is not, of itself, enough to establish vicarious liability.81 the modern, more complex range of statuses, with worker added to the employed and self-employed, prompted butlin and allen82 to suggest that a coherent approach in embracing s230(3) employment rights act 1996 ‘workers’ as being covered by vicarious liability would be helpful. their paper pre-dated this approach being expressly rejected by lady hale in barclays bank, of which more below.83 employees working on loan to another it is sometimes that an employee carries out work for another, to whom they are merely loaned by their employer and are not under a contract of employment to that other. (distinguish this from individuals who have more than one contract of employment.) whether the main or temporary ‘employer’ is liable will depend on the usual tests of control and integration used to distinguish employees from the self-employed as rehearsed above. in mersey docks & harbour board v coggins & griffith (liverpool) ltd84 it was held that the burden of proof is with the main employer to establish that liability has shifted to the temporary employer. this is not easy but the principle was confirmed more recently in 78 [2018] uksc 29. 79 case c-413/13 fnv kunsten informatie en media v staat der nederlanden eu:c:2014:2411, para 33. 80 see case c-256/01 allonby v accrington and rossendale college [2004] ecr i-00873, para 68; hashwani v jivraj [2011] uksc 40 [34]. 81 sweeney v boylan nominees pty ltd [2006] hca 19 [13] (high court of australia): ‘the whole of the law that has developed on the distinction between employees and independent contractors denies that benefit or advantage to the one will suffice to establish vicarious liability for the conduct of the second’. 82 sf butlin and r allen, ‘worker status and vicarious liability: the need for coherence’ (2018) university of cambridge faculty of law research paper 21. 83 barclays bank (n 2) [29]. 84 [1947] ac 1 (hl). the denning law journal 37 biffa waste services ltd v maschinenfabrik ernst hese gmbh85 and the christian brothers case in 2012.86 non-delegable duty of care at this point, it might also be useful to refer to a further strand of the development of the concept of no-fault liability. clearly, although there is a no-fault basis to vicarious liability for the wrongs of employees (or those akin to employees), it is based on a conscious adoption of a relationship. a further development has been that of the idea of non-delegable duty. this is where x has been found liable for the wrongs of y, who is not an employee (or akin) because the situation is such that it is held that the duty of care cannot (at law) be delegated to a competently appointed sub-contractor (as would be the norm). for example, in woodland v essex county council a child was left severely brain damaged after a swimming lesson conducted by a self-employed teacher engaged by the local authority.87 rather than seeking to categorise the teacher as ‘akin’ to an employee and thus embrace the usual principles of vicarious liability, it was held that some duties were non-delegable and the council was primarily responsible for children in swimming lessons. it is generally supposed that the idea of a non-delegable duty is an exception, rather than an extension, to the principle of vicarious liability in that it does not seek to categorise non-employees as akin to employees, but imposes primary liability on the engaging party in certain, narrow, circumstances largely involving either hazardous activities in a public place,88 or children or hospital patients.89 this is not, however, universally accepted and some argue that the concept of non-delegable duty is simply a further device to ascribe vicarious liability rather than a separate head of primary liability. why does this matter? if the former, it might, for example, colour the extent of relationship which are deemed to be within the scope of consideration.90 85 [2008] ewca civ 1257. 86 christian brothers (n 57). 87 [2013] uksc 66. 88 first reported in pickard v smith (1861) 10 cb (ns) 470 as noted in woodland (n 87) [6]. 89 woodland (n 87) [23] (lord sumption). 90 p giliker, ‘vicarious liability in the uk supreme court’ (2016) 7 uk supreme court yearbook 152; r stevens, ‘non-delegable duties and vicarious liability’ in jw neyers, e chamberlain and sga pitel (eds), emerging issues in tort law (hart 2007). 38 ‘not my employee, not my liability’: a review of the law of vicarious liability, its april 2020 supreme court airing once it has been established that the relationship is such that the principle can apply, it must then be established that there is a sufficient connection between the wrong and the work. the relationship between authorised work and the wrongdoing in the early years of the development of this area of law, there would be liability only for expressly authorised acts. readers will be familiar with words such as ‘in the course of employment’, that is where the wrongdoer is carrying out his or her authorised work, albeit in a wrong or even expressly unauthorised way, as opposed to them being on (to use the quaint and well-known phrase) ‘a frolic of their own’.91 in limpus v london general omnibus company92 the employer was vicariously liable for injuries caused when a horse-drawn bus driver ran into a competitor’s bus, despite written instructions that drivers ‘must not on any account race with or obstruct another omnibus’.93 the reasoning was that the driver was carrying out his authorised work, with the intention of assisting his employer’s business, albeit that the practical realisation of those intentions was misguided and the driver was carrying out his work in an expressly unauthorised fashion. contrast beard v london general omnibus company where the employer was not liable when a conductor drove the bus, as he had no authority to do such a thing, driving being entirely outside the scope of his work.94 this was, for many years, taken to mean that even unauthorised acts had to be so closely connected with authorised acts as to be regarded as doing those authorised acts, however improper the manner, as seen in rose v plenty where lord denning judged: ‘in considering whether a prohibited act was within the course of the employment, it depends very much on the purpose for which it is done.’95 here, a milkman had been expressly forbidden from allowing children to help on the milk float ‘in any circumstances’.96 when a child helped and was injured through the milkman’s negligent driving, the employer was found vicariously liable. lawton, lj, in dissent, felt that the employer was not liable per twine v bean’s express ltd97 and conway v george wimpey & co ltd,98 both involving drivers giving lifts against express prohibitions. lord 91 joel v morrison [1834] ewhc kb j39, 5. 92 [1862] 1 h & c 526 (ct exch). 93 ibid 528. 94 [1900] 2 qb 530 (ca). 95 [1975] ewca civ 5. 96 ibid. 97 [1946] 1 all er 202 (ca). 98 [1951] 2 kb 266 (ca). the denning law journal 39 denning, however, distinguished these cases on the basis that in rose, the milkman was using the child (albeit against instruction) in furthering the employers business, as opposed to a prohibited act with no connection at all to the commercial activity of the employer. this reasoning was set out in salmond and heuston on the law of torts as: ‘a master, as opposed to an employer of an independent contractor, is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes, although improper modes, of doing them’.99 whilst providing a logical result in many cases, lord toulson in mohamud v wm morrison supermarkets plc,100 observed that this construction did not, indeed could not, work with, for example, sexual abuse cases101 as such wrongs could, in no way, be seen as carrying out the work of the employer. rather, lord toulson drew on lord nicholls in dubai aluminium co. ltd v salaam102 which looked for such a close connection with authorised actions that the wrongful act may ‘fairly and properly’ be regarded as having been carried out ‘in the course of employment’, not simply equated with, however tenuously, authorised acts. what particularly came out of dubai and mohamud was that this cannot be regarded as ‘painting by numbers’. a lack of precision cannot be avoided, courts must make evaluative decisions in each case applying principles from previous cases, with a reasoned explanation as to the application or disregard of those factors, to allow the development of the law on a principled basis rather than through ‘a personal sense of justice’.103 employee’s liability although pursued relatively rarely, it is worth noting that despite the principle of vicarious liability operating to support the victim in being able to claim directly against employer, the perpetrator may be no less personally culpable. lister v romford ice and cold storage ltd104 (a sad case involving a son who, in driving a lorry through slaughterhouse gates, backed into his father) established that the party out of pocket (whether employer or insurer) can, under the principle of 99 rfv heuston and ra buckley (eds), salmond and heuston on the law of torts (21st edn, sweet & maxwell 2006). 100 mohamud (n 7). 101 such as lister v hesley hall ltd (n 29); the christian brothers case (n 57). 102 dubai aluminium co. ltd v salaam [2002] ukhl 48. 103 wm morrison supermarkets plc (n 1) 24 (lord reed). 104 [1957] ac 555. 40 ‘not my employee, not my liability’: a review of the law of vicarious liability, its april 2020 supreme court airing subrogation, claim indemnity from the party at fault.105 this situation does, however, depend on the deemed assumption of personal responsibility. in the negligent driving of martin lister, there is clear personal culpability. later cases have been distinguished such that in williams and another v natural life health foods ltd there was deemed to be no independent assumption of responsibility by an employee so when a company went into liquidation, there could be no direct recourse by the claimant to an individual.106 in merrett v babb, however, the court of appeal found that john babb, a chartered surveyor who had carried out a negligent valuation, was personally liable.107 a normally ‘straightforward’ vicarious liability action against an employer was not possible due to the employer’s insolvency, the trustee in bankruptcy having failed to take out insurance run off.108 merrett was not followed in matthews v ashdown lyons and maldoom109 and russell v (1) walker & co. (2) robert chisnall and others,110 two cases in which the defendants were supported by their professional body111 but both were in the county court and both distinguished merrett on the basis of williams. in short, if lister and merrett cannot be distinguished, then employers, and others, may be able to seek indemnity as was the case with insurers joining a negligent radiographer in action in bell v alliance medical limited and others.112 this was an application of what is permissible in law, per lister, but which has been rarely pursued in practice, not least due to the ‘gentleman’s agreement’ of the british insurance association first reached in 1953.113 the court discarded 105 glanville williams (1911–97), professor of jurisprudence at university college, london (1945–55) and of english law at the university of cambridge (1968–78) was well known to generations of law students as the author of learning the law (first published in 1945). his review of lister in the modern law review contains a helpful exploration of employee indemnity and also of the dissenting reasoning in both the court of appeal and the house of lords: glanville williams, ‘vicarious liability and the master’s indemnity’ (1957) 20 mlr 220; continued (1957) 20 437. 106 [1988] ukhl 17. 107 [2001] ewca civ 214. 108 itself being a breach of the regulations of the royal institution of chartered surveyors (rics). 109 (2014) central london county court, 14 february 2014. 110 (2014) southend county court, 25 july 2014. 111 the rics having an interest in protecting members from personal claims and seeking to alter or mitigate the effects of merrett v babb (n 107). 112 [2015] csoh 34. 113 this was extended in 1955 with the accident offices’ association and the mutual insurance companies’ association proffering their agreement to the british employers’ confederation to adhere to such an arrangement, as cited in a report commissioned in the the denning law journal 41 arguments that lister is no longer applicable and acts as a reminder of employees’ exposure. in fact, the employee in the case had insurance through her professional body114 but insurance was not compulsory and, clearly, employees taking out insurance for personal liability at work is not the norm. having looked at the development and general operation of the law and some of the issues surrounding (a) whether an employer will be potentially liable for a particular wrong-doer’s actions, (that is, is the perpetrator an employee or in a relationship akin to employment?) and, if so, (b) whether the actions are closely enough related to work to be the subject of vicarious liability, it is instructive to review the two cases both heard by the supreme court in november 2019 and reported in april 2020. barclays bank addressed question (a). it involved the wrongs of someone not employed by the defendant bank. in wm morrison, (b) was at issue, that is an employee doing something clearly outside the scope or ‘sphere’115 of his role. barclays bank plc v various claimants the barclays bank plc case involved a medic116 carrying out routine examinations on prospective employees of barclays.117 many of the recruits were young women, often 16-year-old school leavers. a total of 126 claimants in a group action alleged sexual assaults during examination, between 1968 and 1984. of the two key questions in establishing vicarious liability, the first question was at issue: did the doctor have a close enough relationship to the defendant bank for them to be vicariously liable (if the acts were found to have a close enough link to the work he was engaged to do)? the decision in hearings to decide whether barclays bank was an appropriate defendant, both the high court and the court of appeal held that the bank would be vicariously liable for the doctor’s assaults (should they be proved). the supreme court overturned this. the doctor was not an employee, nor was he akin to an employee. he worked for several other organisations (including as a part-time employee of the wake of lister – gerald gardiner, ‘lister v romford ice cold storage co. ltd: report of the inter-departmental committee’ (1959) 22 mlr 642. 114 the society of radiographers. 115 ilkiw v samuels [1963] 1 wlr 991, 1004 (lord diplock). 116 who died in 2009; barclays bank (n 2) [5]. 117 and prior to the merger in 1969, martins bank. 42 ‘not my employee, not my liability’: a review of the law of vicarious liability, its april 2020 supreme court airing nhs) and on his own account. he was paid no retainer. he was free to refuse work offered. thus, he was not operating in the course of the bank’s business but for his own. the case raised a number of issues in reviewing the position. more than one vicariously liable party the case drew on earlier decisions in establishing that parties beyond the direct employer and employee relationship could be joined in action. in viasystems (tyneside) ltd v thermal transfer (northern) ltd,118 for example, there was liability for a subcontractor and, in a diversion from case law dating to 1826,119 shared vicarious liability between two parties where a subcontractor (second defendant) was provided with a fitters’ mate employed by the third defendant company. the fitters’ mate negligently caused considerable damage and the second and third defendants were each held to be 50 per cent liable with the measure being, not only formal employment relationships, but whether a worker ‘is so much a part of’ the business or organisation that the defendant should take on responsibility.120 ‘akin’ to employment the claimants in barclays argued (successfully at lower levels) that cases such as the christian brothers121 and e122 had extended the law on a basis of what was ‘just and fair’ rather than the courts having to be tied to a trite dis-application of vicarious liability to non-employees123 – echoes of the policy basis of legal development discussed above. but it was found that the requirement of establishing an employment relationship had not altered, and cases such as christian brothers and e simply found, on their facts, a relationship so closely ‘akin’ to employment that vicarious liability could be found. in looking at the five ‘policy’ factors noted by lord phillips in the christian brothers case124 as being required to establish whether vicarious liability could 118 [2005] ewca civ 1151. 119 laugher v pointer (1826) 5 b & c 547 (kb). 120 denham v midland employers’ mutual assistance limited [1955] 2 qb 437 (ca) 444 (lord denning). 121 christian brothers (n 57). 122 e (n 70). 123 barclays bank (n 2) [8]. 124 christian brothers (n 57). the denning law journal 43 operate, care was taken to distinguish the factors stated from a limit to what was required.125 in addressing them along with a holistic consideration of the relationship, two factors were discarded ((i) policy and insurance should not impose liability, of itself; and (v) control is nuanced and many employees are under less apparent control than non-employees) but (ii) that the activity was carried out as a result of activity undertaken on behalf of the defendant, (iii) that the action was part of the business of the defendant and (iv) that the defendant created the risk were clearly apposite and provided a connection, but lord phillips concluded: ‘where it is clear that the tortfeasor is carrying on his own independent business it is not necessary to consider the five incidents.’126 non-delegable duty the principles surrounding a non-delegable duty, as seen above in the summary of the woodland v essex county council127 case, were drawn on in barclays as, rather than ascribing vicarious liability and seeking to extend the principle to cover a non-employee, it was held that some duties were non-delegable. this has, however, been held to be applicable in very narrow circumstances. in armes v nottinghamshire county council,128 for example, it was found that (unlike woodland) there was no non-delegable duty of care imposing primary liability on a local authority for foster children placed with carers. the nature of the foster carer role was too wide to ascribe such a duty on the council. there was, however, on the facts of the case, vicarious liability given the close relationship between the local authority and the fostering (in line with christian brothers and e). the fostering (during which sexual abuse took place) was an integral part of local authority activity, the local authority created the risk of harm and foster parents could not be said to be carrying on an independent business on their own account – their role was inextricably linked to the council. these cases might seem to point to the law of vicarious liability having been extended beyond employees, per the lower courts in barclays, but a very clear summary of what recent cases have and have not done, in terms of developing the law, was made in the singapore court of appeal129 in ng huat seng v mohammed130. it said that christian brothers, cox and armes, simply fine-tuned 125 barclays bank (n 2) [18]. 126 barclays bank (n 2) [27]. 127 woodland (n 87). 128 armes (n 72). 129 the highest court in singapore. 130 [2017] sgca 58. 44 ‘not my employee, not my liability’: a review of the law of vicarious liability, its april 2020 supreme court airing existing principles in ascertaining in what cases a relationship ‘akin’ to employment might be found, that is where the wrongdoer is engaged in the defendant’s business rather than their own business, echoing lord sumption in woodland, that the law has: ‘… never extended to those who are truly independent contractors’.131 and there was no suggestion that the bank’s relationship with young, adult prospective employees embraced a non-delegable duty in the nature of woodland. wm morrison supermarkets plc v various claimants [2020] a supermarket employee, an internal auditor, released personal and banking data of nearly 100,000 morrison’s employees onto a publicly accessible website. this was a deliberate, planned act of data breach carried out due to a grudge held by the employee against morrison’s following disciplinary proceedings. both the high court and the court of appeal found that the supermarket was vicariously liability for the wrong. as indicated above, in establishing vicarious liability there are two vital questions: (a) was the perpetrator of the wrong an employee (or akin to an employee), and (b) was the wrong carried out within that relationship? in morrison, question (a) was not in doubt. in the supreme court, lord reed cited as authoritative132 the framing of question (b) as expressed by lord nicholls in dubai:133 was ‘… the wrongful conduct … so closely connected with acts the partner or employee was authorised to do that for the purpose of the liability of the firm or the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the partner while acting in the ordinary course of his employment?’134 particularly interesting was lord reed’s dissection and disposal of the court of appeal decision135 which had drawn on mohamud and quoted it as authority for ascribing vicarious liability (a) ‘the principle of social justice going back to holt cj’,136 i.e. a policy based argument (b) liability where an employee’s conduct was a ‘seamless episode’ or ‘unbroken chain of events’, 137 i.e. the employment context and (c) that ‘motive is irrelevant’.138 this construction, as lord reed notes, would result in a considerable extension of the law which he asserted that lord toulson’s 131 woodland (n 87) [3]. 132 wm morrison (n 1) [25]. 133 endorsed in mohamud (n 7) [41]. 134 dubai aluminium (n 102) [23]. 135 wm morrison supermarkets plc v various claimants [2018] ewca civ 2339. 136 mohamud (n 7) [45]. 137 ibid [47]. 138 ibid [48]. the denning law journal 45 leading judgment in mohamud had not intended139 and he found that the three elements fulfilled had been taken out of context. taking his points in turn: a. policy social justice, policy and, in a modern context, insurance, whilst considerations, should not drive or override the law. the fact that there may be valid policy reasons for a decision does not mean that legal rules should not develop and adhere to clear, underlying principles.140 b. the connection between the wrong and the employment connection should not simply be looked at in terms of time and causation, rather it is a matter of the substance on the facts. conscious and malicious disclosure of unlawfully captured data on his own computer could not be construed as part of the employee’s authorised function. it was established law that, even where carrying on acts of a similar kind to those authorised in employment, the context could stray so far from that authorisation such that the employer would not be liable.141 in short, is the employee furthering his or her employer’s business ‘however misguidedly’142 or, conversely, acting as ‘as stranger in relation to his employer’,143 that is with no connection to employment? a number of caribbean shooting cases which were decided in contrast served to illustrate the idea of connection (albeit that shootings are not, hopefully, the most relevant of situations to most). in attorney general of the british virgin islands v hartwell144 the employer was not vicariously liable when a policeman injured a bystander when shooting at his partner and a man she was with at the bar where she worked as a waitress. he was taken to have departed from his employment and was on a personal vendetta. similarly, in brown v robinson145 when a security guard shot a man trying to get into a football match in kingston, jamaica, and the victim had his hands up at the time, it was found to be acting so far outside any authorised mode of carrying out work such that the employer was 139 wm morrison (n 1) [17]. 140 see lister v hesley hall ltd (n 29); see also e (n 70). 141 kooragang investments pty ltd v richardson & wrench ltd [1981] ukpc 30. 142 hamlyn v john houston & co [1903] 1 kb 81(ca). 143 bugge v brown [1919] 26 clr 110 (high court of australia). 144 [2004] ukpc 12. 145 [2014] ukpc 56. 46 ‘not my employee, not my liability’: a review of the law of vicarious liability, its april 2020 supreme court airing not liable. contrast bernard v attorney general of jamaica146 where the victim was shot by a policeman when he refused the policeman access to a telephone. the shot in the head at point blank range came after a scuffle and when hospitalised, the policeman went to arrest him for assaulting a police officer. whilst clearly not carrying out his duties in a proper fashion, this was held to be in the course of employment. these three cases clearly show that a close reading of the facts is required, along with the law. a recent court of appeal case also found significant violence still to be ‘in the course of employment’. in bellman v northampton recruitment ltd,147 a managing director left a member of staff severely brain damaged after an assault at an office christmas party. due to the nature of the event, the discussions taking place at the time, and the conduct of the md in asserting his role at the event, there was found to be an adequate connection between the event and the employment. c. motive lord reed found that the motive is relevant when it is clear that the activity in question is solely for personal reasons. the decision morrisons were held not to be liable for the significant data breaches carried out wilfully by a disgruntled employee, overturning the preceding hearings in the high court and court of appeal. (there was an additional question as to whether breaches of data protection legislation were expressly excluded from vicarious actions. it was found that they were not.) employment law developments and ‘workers’ the law has developed (or, as atiyah148 put it so well, been ‘stretched’149) considerably in scope, if not in fundamental principle (for example with the child welfare and sexual offences cases) and although both lord phillips and lord reed have 146 [2004] ukpc 47. 147 [2018] ewca civ 2214. 148 patrick atiyah (1931–2018), professor of law at the australian national university (1970–73), university of warwick (1973–77) and of english law at the university of oxford (1977–88). 149 ps atiyah, the damages lottery (hart publishing 1997) ch 2: ‘how the law has been stretched’; ch 3: ‘more stretching of the law’. the denning law journal 47 noted relatively recently that, respectively, the law ‘is on the move’150 and has ‘not yet come to a stop’,151 still there is a brake. usefully, in the light of s230(3) employment rights act 1996 and a number of recent employment law cases152 where there might have been a temptation to sweep up a whole category of perpetrators153 (rather than operating on a case by case basis), lady hale indicated in barclays that the idea of a ‘worker’ (i.e. someone other than an employee but with some although, of course, not all, employment rights) being embraced wholesale into a sense of being able to ascribe vicarious liability for the wrongs of a whole range of non-employees, would be ‘going too far down the road to tidiness’.154 and it would, to pick up atiyah’s thinking, be evidence of extending the law to help the individual claimant in front of the court, rather than a coherent development of principle.155 practical application clearly with employees, the position is guarded against with insurance and good recruitment and management practices to help avoid (as far as is humanly possible!) the worst of behaviours amongst one’s staff. of more concern is whether there could be liability for sub-contractors or others not employed. the cases would indicate that only where there is an unusually close relationship would this be held. clearly councils and foster carers, church bodies and priests and the like may be of little concern in business life, equestrian or otherwise. but, whilst lady hale was at pains to stress that employment law is not to be taken as having swept up the law of vicarious liability, where there are non-employees classed as workers, or what the court might consider to be employees erroneously classified as self-employed, then there might be scope for liability. and it is in those situations where insurance may be found to be lacking. perhaps ironically, although the law has 150 christian brothers case (n 57) [19]. 151 cox (n 58) [1]. 152 perhaps most famously pimlico plumbers ltd (n 78); but, see also bates van winkelhof (n 77). 153 see butlin and allen (n 82). 154 barclays (n 2) [29]. 155 for those looking for a comparative view from another common law jurisdiction, the goudkamp and plunkett (2017) review of prince alfred college v adc [2016] hca 37 (high court of australia) is a useful read: j goudkamp and j plunkett, ‘vicarious liability in australia: on the move?’ (2017) 17 oxford university commonwealth law journal 162; along with p giliker, ‘comparative law and legal culture: placing vicarious liability in comparative perspective’ (2018) 6 the chinese journal of comparative law 265. 48 ‘not my employee, not my liability’: a review of the law of vicarious liability, its april 2020 supreme court airing developed, in part, to ensure victim recompense due to employer’s deeper pockets and insurance, a lack of insurance is, of course, no defence at all.156 whether in this context or other matters such as taxation or health and safety, there is a very considerable financial risk in calling people self-employed if that is not genuinely the case. it will, however, continue to be rare where a relationship ‘akin’ to employment is found. implications of the recent decisions so we are left with a foundation perhaps little fundamentally changed in two centuries and more. per lady hale in woodland: the common law is a dynamic instrument. it develops and adapts to meet new situations as they arise. therein lies its strength. but therein also lies a danger, the danger of unbridled and unprincipled growth to match what the court perceives to be the merits of the particular case.157 and barclays and morrison add to a growing body of case law which has extended application of the law by increments into wider spheres to allow us to determine whether a defendant can be held vicariously responsible for someone other than an employee and whether a wrongdoer is acting in the course of employment. this, hopefully, allows the law to develop, drawing on lady hale’s expression of the operation of the common law, to meet new situations, but not in an unbridled and unprincipled way. in three final observations: firstly, the recent supreme court cases might give some comfort to employers, in the courts being willing to explore the facts thoughtfully rather than to glibly throw the blanket of vicarious liability over a situation due to perceived policydriven benefits of ascribing liability to the more able payer. on the relationship between the parties, barclays shows that the courts have certainly not reached a fluid and unprincipled extension of the law to cover non-employees and that there must be a doctrinal basis for such a conclusion. is the law narrower than before? would cases such as christian brothers or armes be decided differently now? unlikely, in that those cases showed a clear and close relationships between the parties, along with vulnerable victims, albeit not 156 although for a consideration of how insurance might influence the outcome of cases in practice, and a model for the future see gerhard wagner, tort law and liability insurance (springer 2009). 157 woodland (n 87) [28]. the denning law journal 49 employment. in barclays there was an ad hoc and arms-length relationship with the doctor clearly not critically integral to the business of the bank. on the nature of the wrong, morrison is, perhaps, no more than an application of the long-established law regarding an employee being on a frolic of his own. but the court of appeal and high court judgments highlight the scope for finding in the alternative. secondly, although in barclays and morrison neither defendant was found liable, care must, of course, be taken to ensure that all persons engaged in business are appropriately classified and directed, supervised and insured accordingly. it is false economy to attempt to avoid employment obligations through artificial labels not reflecting reality. finally, the considerable number of 21st century supreme court cases (particularly, but not exclusively, wm morrison and barclays) pay for a careful reading of their bases of decisions making and, often, their rejection of the reasonings of lower courts. drastic solutions: a comparative study of emergency powers in the commonwealth edward philips* "the problems of public order in an emergency pose agonising choices and stir deep passions. the subject is topical and urgent in northern ireland today but it has a much wider significance, for it raises basic questions about any society's response to dissent and to violence."1 this survey will concentrate on the various constitutional provlslons for proclamations of emergency in malaysia and india, with a few references to emergency situations in other parts of the commonwealth.2 generalisations regarding the diverse jurisdictions to be found within the commonwealth are always suspect, and rightly so. however, the constitutions of malaysia and india display a sufficient number of common characteristics that render a comparison between them worthwhile. the written constitutions of the new commonwealth states3 display, on paper, a considerable distrust of the executive. this is not surprising in the context of colonial history, but it also acknowledges the tensions, ethnic, racial and political, present in these states. accordingly, provision was made for drastic powers to be invoked should these tensions boil over. at the same time there was an attempt to limit abuse of power through a written constitution and provisions for a bi-cameral • of the school of law, university of buckingham. 1. twining, emergency powers: a fresh start, quoted in lee, emergency powers (sydney, 1984), p.l. 2. india obtained its independence in 1947. its constitution may be described as autochthonous, i. e. it was drafted and adopted by the indian legislature itself and, unlike the constitutions of most other commonwealth states, for instance, malaysia and zimbabwe, does not owe its validity to uk or colonial legislation. the indian constitution, in particular its provisions on fundamental rights and emergency powers, has served as a precedent in nearly all the commonwealth states subsequently obtaining independence. malaysia became independent in 1957as the federation of malaya. in 1963it was joined by sabah, sarawak and singapore to form the new federation of malaysia. in 1965 singapore left the federation. the constitution of the republic of singapore runs on parallel lines to the malaysian constitution and the provisions relating to emergency powers are similar. 3. the term 'new' commonwealth, although strictly inaccurate india, for instance, has been independent for 42 years and malaysia for 33 is nonetheless useful to distinguish these states which became independent after the second world war, as opposed to the 'old' statute of westminster commonwealth. 57 the denning law journal legislature along the westminster model, an independent judiciary enjoying security of tenure, an impartial civil service, a bill of rights patterned variously on that in the indian constitution or on the european convention of human rights and, fundamentally, political pluralism to safeguard against domination by any single ethnic, racial or political group. in addition, a number of states, including india, malaysia and nigeria, sought a further safeguard in a federal system of government. the serious student of comparative constitutional law will, no doubt, be able to list a much more comprehensive list of similarities and, indeed, differences, but this will, perhaps, be sufficient as a starting point for discussion. one point which may usefully be made here is the influence exerted by the emergency powers applied in the united kingdom during the two world wars. the wartime legislation has done much to shape the modern approach to emergencies in the commonwealth, particularly in the sphere of legislative and judicial review of their use. it is not uncommon in both india and malaysia to find the courts referring to the united kingdom wartime legislation and the cases decided thereunder for their persuasive value. the provisions on emergency powers in the constitutions of the new commonwealth raise a number of common issues: 1. the circumstances which must exist in these jurisdictions before a proclamation of emergency may be made; 2. the constitutional formalities of such a proclamation; 3. legislative review of emergency proclamations; 4. the possibility of judicial review; 5. the constitutional formalities for the continuation of the emergency; 6. the extent to which constitutional rights are suspended; 7. the question as to whether proclamations of emergency could ever be consistent with the concept of constitutionalism and with the rule of law. perhaps all of the above may be summed up in the single question: are there adequate safeguards against the abuse of emergency powers by an executive determined to maintain control? viewed in this context, the focus of attention should shift from the question whether emergency powers ought to be tolerated within a democracy to whether such emergency powers as exist at anyone time are proportionate to the dangers threatening that democracy. 4 definition of emergency there are four main types of emergency: wartime, as opposed to peacetime; and civil, as opposed to martial. in this context, a 'civil' emergency refers to a situation where neither the legislature nor the courts have been suspended, while a 'martial' 4. see arif, "emergency powers and the rule of law", [1983] journal of malaysian and compararive law 87. 58 drastic solutions emergency refers to the imposition of martial law, a situation where the armed forces have replaced civil administration and the constitution itself has been suspended. this has frequently been the case in pakistan. in the begum nusrat bhutto case (1977), chief justice anwarul haq detailed six separate periods of martial law in pakistan since independence.5 it is submitted that the concept of 'martial law', which may lead to the suspension or even abrogation of the constitution, should be kept juridically separate from the concept of 'emergency'. under the latter, while parts of the constitution may be temporarily suspended (usually the bill of rights), the constitutional machinery itself continues in operation. it is frequently the case, therefore, that the legislature and the courts carry on functioning. emergency powers may be defined as those extraordinary powers permitted to government to deal with threats to the nation that cannot adequately be met with ordinary powers. in some commonwealth states there are broad categorisations of what may be labelled an 'emergency'. article 150 of the malaysian constitution, for instance, declares that an emergency occurs when the "security or economic life of the federation" is threatened. in the united kingdom itself a state of emergency would exist if it appears to the crown that there have occurred or are about to occur, events of such a nature as to be calculated to deprive the community or any substantial part of it, of the essentials oflife by interfering with the supply and distribution of food, water, fuel or light, or with the means of locomotion.6 any further attempt, however, to define an 'emergency' and 'emergency powers' must be futile. they are by nature elastic concepts.? this was recognised by the privy council in stephen kalong ningkan v. government of malaysia8 where lord macdermott observed that the natural meaning of the word itself was capable of covering a wide range of situations and occurrences, while in bhagat singh v. the king emperor the privy council held: "a state of emergency is something that does not permit of any exact definition: it connotes a state of matters calling for drastic action."9 in nigeria, in the case of lakanniv. the attorney-general (west), the supreme court declared: "we think it wrong to expect that constitutions must make provisions for all 5. see wolf-phillips, constitutional legitimacy: a study of the doctrine of necessity· (london, 1979). 6. emergency powers acts 1920 and 1964. 7. for a united nations' listing of the wide range of threats recognised in written constitutions which permit emergency powers, reference may be made to un department of economic and social affairs, study of the rights of everyone to be free from arbitrary arrest, detention and exile, un doc/e/cn4/826 rev 1 (1965), p.184. 8. [1970] a.c. 379, at p.390. 9. a.i.r. 1931 p.c.!i!. 59 the denning law journal emergencies. no constitution can anticipate all the different forms of phenomena which may beset a nation."lo circumstances under which an emergency may be declared if threats to the stability or well-being of the nation cannot be met adequately and effectively with normal powers then resort to emergency powers may be justifiable. in fact, non-use of such powers would be dangerous; there is some truth in the argument that, however drastic the solution, non-democratic powers may be used to preserve democracy itself. a typical instance is the threat of external aggression, as happened during the border war between india and china when india proclaimed a state of emergency in 1962and during the malaysianindonesian 'confrontation' when malaysia made a similar proclamation in 1964. emergency powers may also be invoked when the state is threatened by internal insurrection and terrorism, as happened during the communist insurrection in malaya (malaysia as it then was), where a state of emergency was declared by the high commissioner in 1948,and the canadian terrorist crisis of 1970where, at the request of the quebec government, the prime minister invoked the war measures act of 1914. the need for emergency powers is recognised in commonwealth constitutions, to a greater or lesser degree. it is also recognised by the various international conventions. for instance, article 15 of the european convention on human rights permits derogations "in times of war or other public emergency threatening the life of the nation". ii the underlying rationale is therefore necessity salus populi, suprema lex esto (the safety ofthe people is the highest law). it needs to be repeated, however, that the true test of the viability of any legal system is its ability to respond to crises without permanently sacrificing the element of constitutionalism under the rule of law. as such there should only be resort to emergency powers where the executive can demonstrate in the legislature and in the courts that these powers are both absolutely necessary and that existing powers are inadequate. whilst the use of emergency powers is recognised, the recognition is qualified to the extent that there are limits which a state cannot exceed. though "the flame of individual right and justice must burn more palely when it is ringed by the more dramatic light of bombed buildings" ,12 the resort to emergency powers in a democratic society does not permit the extinguishing of the flame.13 in particular, the temptation to use emergency powers to deal. with ordinary crises should be resisted. unfortunately, the temptation to use emergency powers to validate unconstitutional action has proved irresistible in ,10. sc.58/69 of april 24, 1970(unreported), per ademola cl, quoted in nwabueze, constitutionalism in the emergent states (london, 1973), p.203. ii. see also article 4 of the international convention on civil and political rights 1966. 12. conway v. rimmer [1968] a.c. 910, at p.982 per lord pearce. 13. lee, emergency powers (sydney, 1984), p.4. 60 drastic solutions many parts of the new commonwealth.14 in the case of asma jilani v. government of the punjab the chief justice of pakistan cited the dissenting judgment of lord pearce in madizimbamuto v. lardner-burke,15 and held: "i too am of the opinion that recourse has to be taken to the doctrine of necessity where the ignoring of it would result in disastrous consequences to the body politic and upset the social order itself but i respectfully beg to disagree with the view that it is a doctrine for validating the illegal acts ... " 16 constitutional provision in malaysia, the relevant provision is contained in article 150 of the federal constitution: (1) if the [king] is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the federation or any part thereof is threatened, he may issue a proclamation of emergency making therein a declaration to that effect. the federation of malaya since 1963 the federation of malaysia achieved independence in 1957 in the midst of an armed insurrection by communist terrorists. the new constitution was itself conceived against a backdrop of a state of emergency which had in fact been declared in 1948 when the terrorists of the malayan communist party began their campaign of destruction. the law relating to emergency powers, therefore, pre-dates the independence constitution. at the time the constitution was drafted the situation of emergency was very much a pressing issue, and the powers conferred upon the high commissioner under the emergency regulation ordinance 1948, were extremely broad. in fact, section 3(1) of the ordinance was in the same terms as section 1(1)of the u.k. emergency powers act of 1920. the insurrection was defeated and the emergency subsequently lifted but given the rather inauspicious start it perhaps comes as no surprise to discover that a state of emergency has been, more or less, in constant existence to meet the various crises which have erupted at various times since independence. 14. see, e.g., the cases involving unconstitutional action in removing chief ministers in malaysia and nigeria: stephen kalong ningkan v. government of malaysia fl970] a.c. 379; adegbenro v. akintola fl963] 3 w.l.r. 63. in both these cases emergency powers were invoked in order to prevent challenges as to the constitutionality of the action taken. it is not only in the new commonwealth that the lure of emergency powers has proved to be too alluring. in ]971 the state of queensland invoked an emergency in order to ensure that a rugby match could proceed: see dean v. a 1i0rney-general of queensland fl971] qd.r.391. ]5. fl969] ] a.c. 645. 16. p.l.d. 1972 s.c.230, at p.242. 61 the denning law journal the launching of an intensive 'confrontation' by indonesia during the sukarno era resulted in a state of emergency being declared by the king on 3 september 1964. (the 1964emergency, it must be noted, has never been expressly revoked. one consequence of this, by a historical oddity, is that the proclamation of emergency still prevails in the republic of singapore which was at the relevant time a component part of the federation of malaysia.) on 14 september 1966, a constitutional impasse in the state of sarawak regarding the dismissal of the chief minister resulted in article 150 being invoked by the federal government in relation to that state .17 racial riots led to a declaration of emergency on 15 may 1969. finally, in 1977, the federal government invoked emergency powers to deal with a political crisis in the state of kelantan. only one of these emergencies has ever been specifically revoked. in 1962, the proclamation of emergency declared in 1948 was lifted. consequently, during the 33 years since malaysia gained its independence, only 2 years have been spent in a non-emergency situation. in india, as in malaysia (and for that matter, in nigeria and kenya) the emergency provisions in the constitution were predated by colonial legislation, in this case the government of india act 1935which itself perpetuated earlier similar legislation. in india, the main emergency provision is contained in article 352 of the union constitution: (1) if the president is satisfied that a grave emergency exists whereby the security of india or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by proclamation, make a declaration to that effect, in respect of the whole of india or of such part of the territory thereof as may be specified in the proclamation. article 352 is further supplemented by article 356 which provides for a proclamation of emergency in the event of the breakdown of the constitutional machinery of any state in the union and the president being satisfied that "the government of the state cannot be carried on in accordance with the provisions of this constitution". article 360 further provides for a state of emergency when "the financial stability or credit of india" is threatened. a comparison with the malaysian constitution reveals that there is no specific provision in that constitution for a breakdown in the constitutional machinery of any state in the federation. nevertheless, such an eventuality would be covered by the "security" and "public order" clauses. in any event, the lack of such specific provision did not prevent the 1966 proclamation of emergency in the state of sarawak caused by the constitutional impasse there nor did it prevent the federal 17. see stephen kalong ningkan, supra. 62 drastic solutions government from invoking the 1977proclamation to deal with the political crisis in the state of kelantan. a further similarity between the constitutional provisions is that a proclamation may in fact be made in anticipation of a "grave emergency" and before the actual occurrence of the event. the malaysian article 150(2)and the indian article 352(3) are in substantially the same terms on this point. however, there is no equivalent clause in either articles 356 or 360, leading to the conclusion that in india the breakdown of constitutional machinery or economic crisis must have actually occurred before the president may act, while in malaysia this appears not to be the case. in india an emergency was proclaimed for the first time in 1962 when the chinese attacked its northern borders. the proclamation declared that a grave emergency existed whereby the security of india was threatened by external aggression. the emergency continued until 1968 when it was lifted by another proclamation by the president. in 1971,the outbreak of war with pakistan resulted in a proclamation of emergency which was not revoked until 1977. in the meantime, a further proclamation was made in 1975 on the ground that the security of india was threatened by "internal disturbance". this proclamation was effectively terminated in 1978. thus, on a rough count, india has been under emergency rule for 12 out of the 42 years of independence. the constitutional formalities of proclamations of emergency article 150(1) of the malaysian constition vests the power of proclaiming an emergency with the king. in stephen kalong ningkan the question arose as to whether the existence of the emergency was an issue which the king alone could decide. the majority of the federal court decided that this concerned matters which were within his sole discretion. is indeed, the lord president refused to allow even the calling of evidence to show the existence of mala fides in the act of proclaiming an emergency, and thought it incumbent upon the court to assume good faith on the part of the king. in stark contrast was the opinion of the minority judge, ong fj, who refused to regard the "satisfaction" of the king that a "grave emergency" existed as meaningless verbiage, holding: "[the words] must be taken to mean exactly what they say, no more and no less, for article 150 does not confer on the cabinet an untrammelled discretion to cause an emergency to be declared at their mere whim and fancy. according to the view of my learned brethren, however, it would seem that the cabinet have carte blanche to do as they please a strange role for the judiciary who are commonly supposed to be bulwarks of individual liberty and the rule of law and guardians of the constitution." 19 18. [1968] 1 m.l.j. 119. 19. ibid., p.126. 63 the denning law journal in this case the proclamation of emergency was issued in respect of the state of sarawak where a question had earlier arisen as to whether the governor of the state could dismiss the chief minister on the strength of a letter signed by 21 out of 42 members ofthe council negeri (the state legislative assembly). believing that ningkan had ceased to command the confidence of the majority of the members, the governor dismissed him, appointing a new chief minister in his place. ningkan petitioned the high court which decided in his favour.2o a week after the decision reinstating ningkan as chief minister, the federal government issued the proclamation of emergency under which the emergency (federal constitution and the constitution of sarawak) act 1966 was passed. important provisions in the sarawak constitution were amended by this law so as to equip the governor with wide powers, enabling him to dismiss the chief minister in his absolute discretion. when a vote of no confidence was finally carried in the council negeri, ningkan was again dismissed. it was argued, on ningkan's behalf, that no "grave emergency" existed, since there were no outward signs of disturbances, hostilities, or threats of either. 21 the proclamation was therefore made infraudem legis with the intention of removing him from the post of chief minister. the augmented powers of the governor, made possible by the 1966 emergency legislation, were thus ultra vires, leading consequently to an invalidation of his decision to dismiss ningkan. the federal court, as noted above, refused to question whether the conditions specified by article 150(1) were satisfied. on appeal to the privy council, it was held that ningkan's appeal was to be dismissed as he could not discharge the onus of proving mala fides. this was a strange view to take. the real question was whether a state of emergency as defined by the constitution existed. under a written constitution the courts possess the power to question this finding offact, a power which does not exist in the absence of a written constitution and in a jurisdiction such as the united kingdom.22 a dispute which has arisen out of the ningkan cases is the question as to whether the king, in exercising the power to issue a proclamation, is exercising a prerogative power. this is the contention, among others of professor hickling in his article "the prerogative in malaysia". 23 it is submitted thatthis cannot be the position. article 40 is very clear: (1) in the exercise of his functions ... the [king] shall act in accordance with the advice of the cabinet or of a minister acting under the general 20. [l966j 2 m.l.j. 187. 21. a similar argument failed in the nigerian case of adegbenro v. akintola, supra, n.14. 22. an interesting contrast is provided by the united states supreme court which has exercised its powers of review to the fun: see, e.g., the celebrated case of marbury v. madison (1803) i cranch 137. for an example of a case in which the supreme court sought to control the exercise of the presidential executive power, see ex parle endo 323 u.s.283 (1944). 23. (1975) 17 malaya l.r. 207. 64 drastic solutions authority of the cabinet, except as otherwise provided by this constitution ... it is true that the article provides for exceptions but these operate only when expressly provided. article 150contains no such provision. moreover, the various judgments in the ningkan case are sufficiently clear. in the high court, chief justice pike declared: " ... since under article 40 of the constitution the [king] is required to act upon the advice of the cabinet in making a proclamation under article 150 ... it cannot, i think, be argued that the power conferred by article 150 is a prerogative power analogous to certain powers of the british sovereign."24 in the federal court the lord president equated the exercise of the power by the king with action by the government: "in an act of the nature of a proclamation of emergency, issued in accordance with the constitution, in my opinion, it is incumbent upon the court to assume that the government is acting in the best interest of the state and permit no evidence to be adduced otherwise."25 in the privy council, lord macdermott said: "on the 14th september, 1966 ... the [king] accing, it may be presumed, on the advice of the federal cabinet as required by article 40(1) of the federal constitution, proclaimed a state of emergency ... "26 in its original form article 150 provided that once the king had issued a proclamation of emergency, there followed a duty to summon parliament "as soon as practicable" if parliament was not sitting when the proclamation was issued. until both houses of parliament sat, the king could promulgate ordinances having the force oflaw if satisfied that immediate action was required (article 150(2) as unamended). a proclamation and any ordinance had to be laid before both houses and, if not sooner revoked, ceased to be in force after the following periods: (a) in the case of a proclamation, at the expiration of two months from the date of its issue; (b) in the case of an ordinance, at the expiration of 15 days from the date when both houses sat. however, where resolutions were passed by each house of parliament, before the expiration of these respective periods, approving them, the proclamation and any ordinance could continue in 24. [1967] ] m.l.j. 46, at p.47. 25. []968] ] m.l.j. ] ]9, at p.]22 (emphasis added). 26. []968] 2 m.l.j. 238, at p.240 (emphasis added). 65 the denning law journal force (clause 3). in addition, under clause 5, parliament may, while an emergency is in force, pass laws "with respect to any matter" if it appears to parliament that the law is required by reason of the emergency. in 1960, however, the time limits of 2 months (for a proclamation) and 15 days (for an ordinance) were deleted.27 further amendments were added in 1981.28 the king's power under the article was now to include the ability to issue different proclamations "on different grounds or in different circumstances" regardless of any proclamation having been already issued or still in operation. 29 the continued existence of multiple proclamations is now, therefore, sanctioned expressly by the constitution.30 in this connection, reference may be made to the 42nd amendment 1976,to the indian constitution. this added a new clause 4 to article 352 which permitted a multiplicity of proclamations to be in force at the same time. however, the 44th amendment has now deleted clause 4. it is clear enough that the malaysian clause 2(a) followed the example of the indian clause 4. however, it is perhaps too much to hope that the indian abandonment of that controversial provision will be emulated in malaysia. under the new article 150(2)(b) where a proclamation is in force and both houses are not then sitting concurrently, the king may promulgate such ordinances as "circumstances appear to him to require" if satisfied "that certain circumstances exist which render it necessary for him to take immediate action." for this purpose, under clause 9, the houses of parliament are to be regarded as "sitting" only where "the members of each house are respectively assembled together and carrying out the business of the house." the 1981 constitution (amendment) act also removed the constitutional duty of the king to summon parliament as soon as may be practicable. this is significant since parliament has the power to pass resolutions under clause 3 to annul both proclamations and ordinances made thereunder. it is worth noting that after the proclamation of 1969, parliament only sat again in february 1971, after a period of almost 20 months. where a proclamation of emergency ceases to be in force (by revocation or annulment), an ordinance made under clause (2)(b) and any other emergency law shall cease to have effect 6 months after the date the emergency ceases to be in force. the constitutional formalities under the indian constitution are similar to those under the malaysian constitution. while the president may proclaim an emergency, he, like the malaysian monarch, is a constitutional head of state and he exercises his powers on the advice of his ministers. article 74 of the constitution lays down: 27. constitution (amendment) act 1960, s.29. 28. constitution (amendment) act 1981. 29. article iso (2a), added by s.15(b) of the 1981 act. 30. see teh cheng poh v. public prosecuror fl979] i m.l.j. 50, discussed infra. 66 drastic solutions there shall be a council of ministers with the prime minister at the head, to aid and advise the president in the exercise of his functions. an interesting question has arisen as to whether the president (or the malaysian monarch) may issue a proclamation on the advice only of the prime minister. article 352 (like article 150 of the malaysian constitution) did not exclude the possibility of a prime minister advising the issue of a proclamation of emergency without the authority of the cabinet as mrs gandhi actually did, professing that a rule of business enabled her so to act. the 44th amendment has removed this defect. an indian prime minister cannot now advise the president to make a proclamation of emergency on the prime minister's sole authority, for the amended article requires that a proclamation shall not be made "unless the decision of the union cabinet that such proclamation may be issued has been communicated to him in writing".3l this issue has had interesting parallels in malaysia. in the constitution (amendment) act 1983,article 150was amended to read as follows: (1) if the prime minisceris satisfied that a grave emergency exists ... he shall advise the [king] accordingly and the [king] shall then issue a proclamation . . .32 the amendment act precipitated a political crisis, both on this as well as other grounds. accordingly, in 1984 a further constitution (amendment) act was passed to restore article 150to the pre-1983 position. nevertheless, it is still a live issue in malaysia (as it also probably is under the uk emergency powers acts of 1920 and 1964) and is particularly significant as the government is a coalition government. as such the prime minister may have difficulty in persuading the members of the cabinet who are not of his own party that an emergency should be proclaimed by the king. legislative review in its original form article 352 of the indian constitution provided that a proclamation of emergency: (2) (b) shall be laid before each house of parliament; (c) shall cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolution of both houses of parliament: one result of the tinkering with the constitution by mrs gandhi's regime 31. see seervai, constitutional law of india 3rd ed. (new delhi, 1981), p.435. 32. emphasis added. 67 the denning law journal during the 1975 emergency and the consequent damning report of the shah commission into the abuse of power during the emergency was that there has been, what may be termed, a 'libertarian backlash'. the safeguards contained in article 352 have been further strengthened, a process that is unique among emergent nations, whether part of the commonwealth or otherwise, where the dominant trend has been towards the erosion of constitutional safeguards. under the new provisions of the 44th amendment, first, the approval of the proclamation by each house is to be given within one month and not two months as before. this stands in sharp contrast with article 150 of the malaysian constitution which has been amended such that parliament need not even be summoned to sit. secondly, under the new provisions, the approval of the proclamation by each house is not to be by a simple majority as before, but by a majority of not less than half the membership of each house and a majority of two-thirds of those present and voting. thirdly, a provision has been added such that a proclamation of emergency would lapse within 6 months unless each house has approved of its continuance by the aforesaid majorities and this provision applies to the continuance of the proclamation for successive periods of 6 months. fourthly, although the approval of the continuance of a proclamation of emergency requires the special majorities mentioned earlier, the newly added clause 7 obliges the president to revoke the proclamation if the house of the people (the lower house) passes a resolution disapproving the proclamation, or its continuance, by a simple majority. fifthly, the new amendment further provides that if one-tenth of the membership of the house gives notice in writing of their desire to move that the proclamation, or its continuance, be disapproved, then on receipt of such notice, the speaker, if the house is in session, or the president, if the house is not in session, shall call a special sitting of the house within 14 days from the receipt of the notice, for the purpose of considering the resolution. the justiciability of proclamations of emergency and emergency legislation it is the function of the judiciary to interpret the written constitution a proposition repeated by lord diplock when delivering the judgment of the privy council in chokolingo v. attorney-general of trinidad & tobago as follows: "underthe constitution on the westminster model ... which is base~ on the separation of powers ... it is an exercise of the judicial power of the state, and consequently the function of the judiciary alone, to interpret the written law when made ... "33 however, the roll-call of emergency cases in all parts of the emergent nations of 33. [1981] i w.l.r.i06,atp.iio. 68 drastic solutions the commonwealth display a sad conformity of judicial passivity and a reluctance to uphold the very constitution they have been sworn to protect. neither has the privy council, in the increasingly rare situations where it is still the final court of appeal, supplied the tenacity lacking in commonwealth jurisdictions. few, indeed, are the occasions when it has delivered judgments unfavourable to the executive. it would not be an exaggeration to say that there has been an overzealous attention to formalistic legalism and none to constitutional values and the doctrines of constitutionalism. perhaps this is not too surprising given the common law tradition inherited by commonwealth judges and illustrated by cases such as liversidge v. anderson,34 duport steels ltd. v. sirs35 and pick in v. british railways board.36 the fact remains, however, that the commonwealth judges are dealing with a written constitution and the guiding principles must surely be different. in india, the question as to whether a proclamation of emergency was justiciable was decided even before independence in the case of bhagat singh v. king-emperor, where an ordinance made by the governor-general under section 72 of the government of india act 1919, was challenged on the ground that there existed no emergency to justify the taking of the action by the governor-general. the privy council held: "the petitioner asked the board to find that a state of emergency did not exist. this raises directly the question who is to be the judge of whether a state of emergency exists. a state of emergency is something that does not permit of any exact definition. it connotes a state of matters calling for drastic action which is to be judged as such by someone. it is more than obvious that that someone must be the governor-general and he alone."37 in a long line of cases, the indian courts have held that the issue of a proclamation does not require any conditions precedent, apart from the 'satisfaction' of the president. in makhan singh v. state of punjab, as to the continuation ofthe proclamation of emergency and the imposition or restrictions on fundamental rights, the supreme court held: "how long the proclamation of emergency should continue and what restrictions should be imposed on the fundamental rights of citizens during the pendency of emergency are matters ... left to the executive. "38 nonetheless, the supreme court accepted the possibility that justiciability may lie 34. [1942j a.c. 206. 35. [1980j i w.l.r. 142. 36. [1974j a.c. 765. 37. a.i.r. 1931 p.c. 111. 38. a.i.r. 1964 s.c. 381,403. 69 the denning law journal if mala fides could be proved. the high water-mark of judicial passivism was reached in adm jabalpur v. shukla. 39 this was a case under article 359, dealing with the power of the president to suspend fundamental rigl1ts, in this case habeas corpus. the supreme court held that the courts had no jurisdiction to set aside an order of detention on the plea that it was illegal or mala fide. the supreme court sought to justify the departure from its ruling in makhan singh on the basis of the difference in phraseology in the presidential orders of 1962 and 1975 involved in those two cases respectively. in any event, there was an attempt to put the matter beyond dispute, for the time being at any rate by the 42nd amendment which added a new clause to article 352: 5. notwithstanding anything in this constitution (a) the satisfaction of the president mentioned in clause 1 and clause 3 shall be final and conclusive and shall not be questioned in any court on any ground; (b) '" neither the supreme court nor any other court shall have jurisdiction to entertain any question, on any ground, regarding the validity of [the issue of a proclamation or the continued validity of a proclamation]. the possible effect of this provision and the judicial response to it was never put to the test as it was swept away by the reforms of the 44th amendment. this merely means, of course, that the status quo has been maintained. the courts will still not review a proclamation unless it be on the very difficult ground of mala fides. the position of justiciability is no better in malaysia. in the stephen kalong ningkan case the federal court had decided by a majority of two to one that a proclamation of emergency was not justiciable, even on the grounds that it was issued malafide.40 lord macdermott in the privy council described the question as one "of far-reaching importance which, on the present state of the authorities, remained unsettled and debatable."41 in the event, the privy council proceeded on the assumption that the issue was justiciable, and found against the appellant as he did not discharge the onus of proving mala fides. the issue was again raised in public prosecutor v. ooi kee saik42 andjohnson tan han seng v. public prosecutor.43 both cases concerned the validity of emergency laws but the judgments alluded to the question of justiciability of proclamations of emergency. in ooi kee saik, raja azlan shah j repeated the approach of the federal court in the ningkan case: 39. a.l.r. 1976 s.c. 1207. 40. [1968] 1 m.l.j. 119. 41. ibid., p.242. 42. [1971] 2 m.l.j. 108. 43. [1977]2 m.l.j. 67. 70 drastic solutions "the fact that the [king] issued the proclamation showed that he was so satisfied that a grave emergency existed whereby the security of the whole country was at stake ... indeed the proclamation is not justiciable (see bhagat singh v. king-emperor and king-emperor v. benoari lal sharma). the same principles governing discretionary powers confided to subordinate administrative bodies cannot be applied to the [king] and are inapplicable. "44 as in india, constitutional amendment has sought to remove conclusively any possibility of judicial review. unlike india, however, it appears that the new provision will remain for the foreseeable future. this new provision was added by the constitution (amendment) act of 1981 which provides that the "satisfaction" of the king when issuing a proclamation "shall be final and conclusive and shall not be challenged or called in question in any court on any ground." the same applies regarding: 150(8)(b )(ii) the continued operation of such proclamation (iii) any ordinance promulgated ... (iv) the continuation in force of any such ordinance. in johnson tan han sengthe question was not so much whether a proclamation of emergency was invalid at the time of its issue but whether a valid proclamation could lose its validity by "effluxion of time" or "change of circumstances". the challenged proclamation was issued in may 1969, under which a number of emergency ordinances were promulgated. acting under the emergency (essential powers) ordinance no.1, 1969, the executive published the essential (security cases) regulations 1975 which effected major changes to criminal procedure. it was argued that no state of emergency existed in fact in 1975 the year the regulations were made. since a lapse of nearly 7 years had intervened and the circumstances which warranted the proclamation of 1969 had disappeared, the proclamation could not be regarded as still operative. it had lost its validity through change of circumstances. consequently, the ordinance and regulations, being dependent on a proclamation which had ceased to be in force, were similarly of no effect. the conviction of the accused under the 1975 regulations could not, therefore, be sustained. a unanimous federal court rejected this contention, with the same attitude of judicial self-restraint exhibited in other parts of the commonwealth. the lord president characterised the question as 'political', agreed that the law applicable in malaysia in this connection was the same as that in england and india and approved the following statement by krishna iyer j in the indian case of bhutnath v. state of west bengal: 44. supra n.42, at p.113. 71 the denning law journal " ... we have to reject summarily [this] submission as falling outside the orbit of judicial control and wandering into the para-political sector. it was argued that there was no real emergency and yet the proclamation remained unretracted with consequential peril to fundamental rights. in our view, this is a political, non-justiciable issue and the appeal should be to the polls and not to the courts. the traditional view ... that political questions fall outside the area of judicial review, is not a constitutional taboo but a pragmatic response of the court to the reality of its inadequacy to decide such issues and to the scheme of the constitution which has assigned to each branch of government in the larger sense a certain jurisdiction ... the rule is one of self-restraint and of subject matter, practical sense and respect for other branches of government like the legislature and executive."45 implicit in the johnson tan decision was a recognition that a proclamation of emergency could not lose its force by a " 'mere'" judicial pronouncement on the matter. the courts have held that article 150 is clear: a proclamation remains in force unless revoked (by the executive) or annulled (by parliamentary resolution). reference may also be made to public prosecutor v. khong teng khen where the court held that the ultimate right to decide if an emergency exists or has ceased to exist remains with parliament and that it was not the function of the courts to decide on that issue.46 the johnson tan decision leads to the result that where a number of different proclamations have been issued and not revoked or annulled, all remain in force. in teh cheng poh v. public prosecutor this view was partly retractedy at the time this case was heard, four different proclamations had been issued those of 1964; 1966; 1969; and 1977. none of the above had been expressly revoked or annulled. the privy council (composed of lords diplock, simon, salmon, edmunddavies and keith) noted that the power to issue, as well as to revoke, a proclamation vested in the king but expressed the view that the constitution did not require the revocation power to be "exercised by any formal instrument". the privy council then formulated a new principle: it was possible for an earlier proclamation to be impliedly revoked by a subsequent one. their lordships held: " ... a proclamation of a new emergency declared to be threatening the security of the federation as a whole must by necessary implication be intended to operate as a revocation of a previous proclamation, if one is still in force. "48 in the most liberal pronouncement yet to be found in any of its judgments in 45. a.i.r. 1974 s.c. 807. 46. [1976j 1 m.l.j. 166. 47. [1979j 1 m.l.j. 50. 48. ibid., p.53. 72 drastic solutions emergency cases from the commonwealth, the privy council went on to hold: "apart from annulment by resolutions of both houses of parliament it [the proclamation] can be brought to an end only by revocation by [the king]. if he fails to act the court has no power itself to revoke the proclamation in his stead. this, however, does not leave the courts powerless to grant to the citizen a remedy in cases in which it can be established that a failure to exercise his power to revoke would be an abuse of his discretion .... mandamus could, in their lordship's view, be sought against members of the cabinet requiring them to advise [the king] to revoke the proclamation. "49 the effect of the decision was to invalidate the emergency (essential powers) ordinance 1969, and all the regulations made thereunder. this, however, proved to be only a temporary setback to executive domination. using its two-thirds majority in parliament, the government succeeded in enacting the impugned ordinance as an act of parliament, the emergency (essential powers) act 1979. moreover, the act was given retrospective effect and deemed to have come into force in 1971, thus effectively negating the ruling of the privy council. protection of fundamental rights during an emergency the question as to whether any of the fundamental rights contained in the malaysian constitution receive protection during an emergency must be answered in the negative. the provisions of article 150 are clear enough: 6.... no provision of any ordinance promulgated under this article, and no provision of any act of parliament which is passed while a proclamation of emergency is in force and which declares that the law appears to parliament to be required by reason of the emergency, shall be invalid on the ground of inconsistency with any provision of this constitution. interestingly, while clause 6 is extremely broad it does contain a saving provision which in effect operates as a limitation, albeit a minor one and without practical significance, upon the executive even during an emergency. this is that no ordinance or act of parliament shall: 6.(a) .... extend the powers of parliament with respect to any matter of muslim law or the custom of the malays, or with respect to any matter of native law or custom in a borneo state; nor shall clause 6 validate any 49. ibid., p.55. see also attorney-general of sl. christopher, nevis and anguilla v. reynolds [19801a.c. 637. cf. the australian case of farey v. burrett (1916) 21 c.l.r. 450. this involved the validity of regulations made under the emergency provisions of the war precautions act 1914-1915. the court refused to question the "judgment, wisdom and discretion" of the executive. 73 the denning law journal provisions of this constitution relating to any such matter or relating to religion, citizenship or language. under the indian constitution, article 358 suspends the operation of article 19 (containing fundamental rights) during the operation of an emergency. the effect of article 358 is that it suspends the restrictions on the power of the state to make any law in contravention of the provisions of article 19. it is worth noting that there is no equivalent provision to clause 6(a) of the malaysian constitution. emergency powers and the rule of law the question must be asked as to whether the rule of law can co-exist with emergency powers. at first glance, it might be deduced that their co-existence can only be an unhappy one. the former is a principle of wide application which has as its overall purpose the subjection of governmental acts to defined legal criteria so as to avoid arbitrary abuse of power, while the latter consists of rules and principles with the avowed aim of supplying government with extremely broad powers. however, if it is accepted that emergency powers are necessary and, after all, no matter how stable a country professes to be, it can never be totally insulated from aberrant conditions, then this need not be inconsistent with the rule oflaw or with the principles of constitutionalism. this is so only provided that the emergency powers are subject to well-defined constraints. thus, the executive must only rely sparingly on emergency powers to meet crisis situations; the legislature is expected to exert a measure of positive control over the continuation of emergency laws; while the judiciary, as the guardian of the constitution, is expected to check excesses of emergency powers in cases properly brought before the courts. it is submitted that nwabueze is correct in his analysis when he writes that emergency powers can be accommodated with constitutionalism if they are conceived as a temporary aberration occurring once in a long while and provided they are not so sweeping as to destroy or suspend the restraints of constitutional government completely. 50 it submitted that developments in malaysia since independence have thrown this 'balance' askew, such that the original commitment to democratic values and the rule of law shows signs of erosion which cannot be defended under present circumstances. sadly, this is true of most of the emergent nations of the commonwealth.51 emergencies in the new states are much too frequent; they have tended to become the normal order of things, thus replacing constitutional government with emergency administration. this is despite the fact that the essence of the concept of emergency is its provisional or temporary status. it follows, therefore, that it should be terminated as soon as the circumstances which brought it into existence are reasonably controlled or no longer exist. 50. nwabueze, constitutionalism in the emergent states (london, 1973). 51. see, ibid., p.174. 74 drastic solutions reference may be made at this point to the recommendations of the international law association as follows: (a) the duration of a state of emergency shall never exceed the period strictly required to restore normal conditions. (b) the duration of the period of emergency (save in the case of war or external aggression) shall be for a fixed term established by the constitution. (c) every extension of the initial period of emergency shall be supported by a new declaration made before the expiration of each term (i. e., with the approval of the legislature). a strict scrutiny of every extension of the period of emergency is imperative; prior approval is essential since the reason of urgency which might have justified the initial declaration by the executive may no longer be relevant. (d) the legislature shall not be dissolved during the period of emergency but shall continue to function effectively; if dissolution of a particular legislature is warranted, it shall be replaced as soon as possible by a legislature duly elected in accordance with the requirements of the constitution which shall ensure that it is freely chosen and representative of the entire nation. 52 lee53 quotes statistics to the effect that from 1946to 1960, states of emergency have been proclaimed on no less than 29 separate occasions in british dependent territories alone. there is a tendency to abuse the concession of emergency powers in the constitution not only by using them for purposes for which they were not intended but also by using them to suspend constitutional government altogether. perhaps this is not altogether too surprising. emergency powers must be seen as one of the constitutional devices, and, some would argue, a necessary device, for adjusting the political, economic and social imbalances to be found in the racially and ethnically heterogenous societies of britain's former colonies. this is especially true of those states of the commonwealth which inherited geographically unrealistic borders and substantial minority groups. these are factors which have posed almost insurmountable problems even in the 'old' commonwealth, canada for instance, and in the united kingdom itself. emergency powers may be permissible when the circumstances are such that they are invoked by a government which is politically and legally accountable. such a government may be able to invoke emergency powers without unduly sacrificing the ideals of constitutionalism. unfortunately, in states where the executive is all-powerful, the legislature ineffectual and the judiciary timid, emergency powers can only, at best, be regarded as a negation of constitutionalism and, at worst, as authorised tyranny. 52. the 1984 paris minimum standards of rights norms in a state of emergency; for further details see chowdhury, rule of law in scare of emergency (london, 1989). 53. emergency powers (sydney, 1984), p.6. 75 a fresh approach to the ex turpi causa and 'clean hands' maxims* gilbert kodilinye* in tinsley v. milligan i the court of appeal has recently anempted to redefine the scope of the maxims ex turpi causa non oritur actio and 'he who comes to equity must come with clean hands' in the context of resulting and constructive trusts. in this case the plaintiff and the defendant entered into a joint business enterprise from the proceeds of which they purchased a house in which they lived together in a lesbian relationship. the legal title was conveyed into the sole name of the plaintiff, but on the understanding that the parties should each be entitled to a beneficial half-share. this entitlement was not embodied in any contract but arose "by reason of [their] equal contribution to the purchase price and in accordance with the declared intentions of both parties." soon after the purchase the parties quarrelled and the plaintiff moved out, leaving the defendant in occupation. subsequently the plaintiff sought possession of the house, asserting her legal title. the defendant counterclaimed for an order of sale and for a declaration that the property was held by the plaintiff upon trust for the two of them in equal shares. the sole issue before the court of appeal was whether the defendant's counterclaim was barred on account of the fact that, over a period of years, the defendant, with the concurrence of the plaintiff, had made false claims to the department of social security for various benefits, and that their declared purpose for having the legal title in the sole name of the plaintiff was to assist in the fraud by misrepresenting to the dss that the defendant had no stake in the property and that she was only the plaintiffs lodger.2 the court of appeal held by a majority, affirming the decision of the trial judge, that the defendant's claim was not barred by the ex turpi causa or 'clean hands' maxims, since, notwithstanding that the purpose of defrauding the dss was illegal conduct of which the court should take notice, to refuse to grant relief to the defendant would be to deprive the defendant of her own property and to give it to the plaintiff who was equally implicated in the fraud. * senior lecturer in law, university of the west indies, cave hill campus, barbados. i. [1992] 2 w.l.r. 508. see j. martin, [1992] conv. 158. 2. it is interesting that no attempt was made to categorise the parties' lesbian relationship as immoral conduct barring a claim in equity. 93 the denning law journal the actual decision in the case is unremarkable, but the main interest lies in the reasoning of the three lords justices, whose ,judgments contain the most comprehensive discussion yet of the modern scope and extent of the ex turpi causa and 'clean hands' maxims and of their relationship with one another, with particular reference to claims to beneficial interests under resulting or constructive trusts. an attempt will be made in this article to identify the modern approach to the application of the maxims with reference to recent decisions of the court of appeal. illegality at common law as kerr lj stated in euro-diam ltd. v. bathurst,3 "the courts will not assist a plaintiff who has been guilty of illegal or immoral conduct of which the courts should take notice." it is elementary law that a court will not enforce a contract or arrangement which is tainted with illegality (ex turpi causa non oritur actio); and that where money or property has been transferred under an illegal agreement, the court will not assist the transferor to recover it from the transferee (in pari delicto, potior est conditio defendentis (or possidentis). to this latter maxim there are three well-established exceptions where the court will permit recovery: (i) where the parties are not in pari delicto (i.e., where the transferor is shown to be less blameworthy than the transferee); (ii) where the transferor repents of the illegal purpose before it has been carried out (the locus poenitentiae principle);4 and (iii) where the plaintiff transferor can assert his title to the property without having to disclose the illegal purpose. of these exceptions only the third was in issue in tinsley v. mill£gan and in a number of other recent cases. before considering the application of the exception, however, it is necessary to consider the juridical basis of the ex turpi causa and in pari delicto maxims as interpreted in recent decisions. public policy it is clear that the application of the ex turpi causa and in pari del£cto defences involves issues of public policy, and that such application depends on the circumstances of the particular case. the modern view, which has been called a "flexible approach'',5 was explained by bingham lj in saunders v. edwards:6 "where issues of illegality are raised, the courts have to steer a middle course between two unacceptable positions. on the one hand it is unacceptable that any court of law should aid or lend its authority to a party seeking to pursue 3, [1988] 2 all e.r. 23, at p. 28. 4, see the discussions in g, kodilinye, [1980] a nglo-amen'canl.r. 28 and j. martin [1992] conv. 158. 5, tinsley v. milligan, supra n, 1, at p. 513. 6. [1987] 2 all e.r. 651, at pp, 665, 666 (ca), 94 a fresh approach to the ex turpi ca usa and 'clean hands' maxims or enforce an object or agreement which the law prohibits. on the other hand, it is unacceptable that the court should on the first indication of unlawfulness affecting any aspect of a transaction, draw up its skirts and refuse all assistance to the plaintiff, no matter how serious his loss or how disproportionate his loss to the unlawfulness of his conduct." his lordship also pointed out? that "the courts have tended to adopt a pragmatic approach to these problems, seeking where possible to see that genuine wrongs are righted, so long as the court does not thereby promote or countenance a nefarious object or bargain which it is bound to condemn. where the plaintiffs action in truth arises directly ex lurpi causa, he is likely to fail. ... where the plaintiff has suffered a genuine wrong, to which allegedly unlawful conduct is incidental, he is likely to succeed." the 'public conscience test' another modern rationalisation of the courts' approach to the illegality defence, which was first put forward by hutchinson j in thackwell v. barclays bank,s has become known as the 'public conscience test'. the learned judge had suggested in that case that the court should seek to answer two questions: "(1) whether there had been an illegality of which the court should take notice, and (2) whether in all the circumstances it would be an affront to the public conscience if, by affording him the relief sought, the court was seen to be indirectly assisting or encouraging the plaintiff in his criminal act." the 'public conscience test' has been approved by the court of appeal in at least three subsequent cases.9 one of these is saunders v. edwards,lo where the defendant sold the lease of a flat to the plaintiffs for £45,000, after fraudulently misrepresenting that the flat contained a roof garden. the trial judge awarded damages to the plaintiffs for the tort of deceit, but the defendant appealed on the ground, inter alia, that the plaintiffs' claim required them to rely on a fraudulent apportionment in the contract of sale (which they had instigated) whereby the fixtures and fittings had been overvalued and the flat itself undervalued an unlawful scheme to reduce the amount of stamp duty payable to the revenue on the conveyance of the flat. the defendant's appeal was dismissed by the court of appeal. kerr lj emphasised 11 that the plaintiffs' action was not to enforce the contract of sale nor to seek any relief in connection with it, but was a claim in tort based on the defendant's fraudulent misrepresentation. the case had, therefore, to be distinguished from the well-known decision in alexander v. rayson,12 which 7. ibid .. 8. [1986]all e.r. 676, at p. 687. 9. saundersv. edwards [1987] 2 all e.r. 65 1;euro-diamlrd. v. bathurst [1988] 2 all e.r. 23; howard v. shirlstar container transport ltd. [1990] 3 all e.r. 366. 10. [1987] 2 all e.r. 651. 11. at p. 659. 12. [1936] 1 k.b. 169. 95 the denning law journal was an action in contract to recover arrears of rent under a lease designed to defraud the revenue. in kerr lj's view, the relevance of the ex turpi causa defence lay mainly in the field of contractual claims and only rarely in tort. there were no rigid rules for or against the application of the defence and, being based on public policy, it depended very much on the circumstances of the individual case, including the conduct and relative moral culpability of the parties. nicholls lj took a similar approach 13 to that of kerr lj, adding that the 'public conscience test' propounded in thackwell v. barclays bank was a useful and valuable one and should be applied in the instant case. it is not clear whether nicholls lj regarded the 'public conscience test' as being restricted to actions in tort, or whether he regarded it as applicable also to contractual and other claims. as far as the present action was concerned, all three lords justices were in agreement that the defendant's moral culpability greatly outweighed that of the plaintiffs, and that the appeal should be dismissed. another recent case in which the 'public conscience test' was applied is howard v. shir/star container transport ltd .. 14 here the defendants wished to repossess an aircraft which had been hired out for private use in nigeria, the hire instalments being in arrears. they engaged the plaintiff, a qualified pilot, to fly the aircraft out of nigeria, contracting to pay him half of the agreed fee as soon as the aircraft had been removed from nigerian airspace, and the balance one month thereafter. being informed that his life might be in danger, the plaintiff flew the aircraft out of nigeria without obtaining air traffic control clearance, which was a breach of nigerian law. one of the issues in the case was whether the plaintiff was barred from recovering the payment due in england on account of the illegal performance of the contract in nigeria. staughton lj consideredls that prima facie the plaintiffs claim would be unenforceable in an english court. "to take off from a nigerian airport in breach of regulations was central to his performance of the contract, as it was in fact performed. it was in no sense an incidental illegality." however, this was clearly a case where, despite the illegal performance, "the plaintiffs claim should not fail, because the conscience of the court is not affronted." the factor which led to this conclusion was that the plaintiff committed the offence in order "to free himself . . . from pressing danger." the 'public conscience test' has not received unanimous acceptance, however. inpiusv. hutll, 16 dillon lj considered 17 the test to be very difficult to apply, since the public conscience might well be affected by matters of an emotional or political nature which the court ought not to be required to take into account. furthermore, an appeal to the 'public conscience' would be likely to lead to a graph of illegalities 13. [1987] 2 all e.r. 651, at pp. 664, 665 (c.a.). 14. [1990] 3 all e.r. 366 (c.a.). 15. at p. 372. 16. [1990] 3 all e.r. 344 (c.a.). 17. at p. 362. 96 a fresh approach to the ex turpi causa and 'clean hands' maxims according to moral turpitude, in which it would be necessary to distinguish between serious and non-serious illegality, between the former categories of felonies and misdemeanours, between offences punishable by imprisonment and those which were not, and so on. his lordship preferred the dichotomy between cases where the plaintiffs action arises directly from the illegality and those where he suffers a wrong to which the illegality is merely incidental a distinction applied by bingham lj in saunders v. edwards. is thus the latter decision could be rationalised on the basis that the unlawful apportionment was merely incidental to the plaintiffs claim, which arose not from the apportionment but from the defendant's fraudulent misrepresentation. the 'clean hands' principle in tinsley v. milligan the plaintiff contended that the case was governed by the maxim that 'he who comes to equity must come with clean hands'. on this argument, once the court finds that property has been conveyed into the name of one party for a fraudulent purpose, the court will not enforce a trust in favour of the other party since his hands are 'unclean'. in such circumstances, the plaintiff argued, the 'public conscience test' had no application and there was no scope for any balancing exercise involving the relative moral culpability of the parties. the leading modem examples of the application of the 'clean hands' maxim are gascoigne v. gascoigne19 and tinker v. tinker.20 in gascoigne, a husband who was in debt to moneylenders took a lease ofland in his wife's name and built a house on it at his own expense. his sole reason for putting the property in the wife's name was to protect it from his creditors. when the parties became estranged the husband sought a declaration that the wife held the lease as trustee for him. it was held that the husband would not be permitted to rebut the presumption of advancement which arose in favour of the wife by setting up his fraudulent purpose. in tinkerv. tinker,21 a husband who, unlike in gascoigne, was not in debt atthe time, transferred the matrimonial home into his wife's name. his purpose in doing so was to protect it from possible future creditors, in case the business on which he had recently embarked should fail. the court of appeal held that the husband could not rebut the presumption of advancement by asserting that his intention was to put the property out of reach of possible creditors. lord denning mr explained the position thus:22 "i am quite clear that the husband cannot have it both ways. so he is on the horns of a dilemma. he cannot say that the house is his own and, at one 18. [1987] 2 all e.r. 651 (c.a.). 19. [1918] i k.b. 223 (d.c.). 20. [1970] i all e.r. 540 (c.a.). 21. ibid .. 22./bid., at p. 542. see also maysels v. maysels (1974) 45 d.l.r .. (3d) 337; munro v. morrison [1979] v.r. 83. 97 the denning law journal and the same time, say that it is his wife's. as against his wife, he wants to say that it belongs to him. as against his creditors that it belongs to her. that simply will not do. either it was conveyed to her for her own use absolutely; or it was conveyed to her as trustee for her husband. it must be one or the other. the presumption is that it was conveyed to her for her own use; and he does not rebut that presumption by saying that he only did it to defeat his creditors. i think that it belongs to her." the gascoigne and tinker cases are thus authority for the proposition that a husband who voluntarily transfers property to his wife will not be able to rebut the presumption of advancement or gift by showing that his real intention in making the transfer was to defeat his creditors, for he "cannot be allowed to take advantage of his own dishonesty. "23in accordance with the principle 'let the estate lie where it falls', the husband will be unable to recover the property. a similar decision was cheuiar v. cheuiar,24 where a father had transferred rubber plantations in malaya to his son in order to evade certain provisions of the rubber regulations of 1934. the father was not permitted to rebut the presumption of advancement by pleading his unlawful purpose. where a presumption of advancement applies, the position is thus clear; but what is the position where the transferor (as in tinsley v. milligan) is not seeking to rebut a presumption of advancement in the transferee's favour but is relying on a presumption of a resulting trust in his favour? if in such a case the estate is left to 'lie where it falls', it could be argued that the transferor should recover on the strength of his own equitable title which he can assert without disclosing the unlawful purpose. this reasoning was applied in a canadian case, gorog v. kiss,25 where the plaintiffs, who were husband and wife, had transferred property to the defendant without consideration in order to defeat their creditors. the ontario court of appeal held that the plaintiffs' action to recover the property succeeded since "the plaintiffs did not have to rely on the illegal purpose in stating the facts giving rise to the presumption of a resulting trust, and establishing their right to the property unless the presumption was rebutted."26 as professor d. w. waters has explained, "the transferor has not needed to put his illegal purpose in evidence. it is of no significance if the transferee tells the court what the purpose was: the transferor is not relying on that purpose."27 23. ibid .. 24. [1962] a.c. 294 (p.g.). 25. (1977) 78 d.l.r. 690. see also marks v. marks (1974) 18 r.f.l. 323; swick v. swick (1979) 12 r.f.l. (2d) 252. 26. at p. 695. 27. law of trusts, srudies in current law, 1975, p. 12. 98 a fresh approach to the ex turpi causa and 'clean hands' maxims a second possibility is that to allow the estate to 'lie where it falls' means that the transferee will be able to rely on his legal title, as a court of equity will not permit the transferor, whose hands are unclean, to claim his equitable interest. this approach was adopted by ralph gibson lj in tinsley v. milligan.28 some support for it can be found in singh v. ali,29 where lord denning took the view that where two persons conspire to effect a fraudulent or illegal purpose, and property is transferred in pursuance of that purpose, "the transferee, having obtained the property, can assert his title to it against all the world, not because he has any merit of his own, but because there is no one who can assert a better title to it. the court does not confiscate the property because of the illegality it has no power to do so so it says, in the words of lord eldon: 'let the estate lie where it falls'. "30 a third possibility is that the presumption of resulting trust can be rebutted by evidence of the actual intention of the parties, whether that intention is to defraud creditors or the revenue or some other purpose. in cantor v. cox31 c, a businessman, and t, a woman with whom he was cohabiting, purchased a house which, in order to protect it from possible creditors of c, was conveyed into the sole name oft. after t's death c claimed to be entitled to a beneficial interest in the property on the basis of a resulting trust arising from his contribution to the purchase price. plowman vc held that c's claim failed. the presumption of a resulting trust had been rebutted by evidence of the actual intention of the parties, which was to put the property out of the reach of possible creditors of c. it is submitted, with respect, that this reasoning is unacceptable, for the court is in effect permitting the transferee to set up the fraudulent purpose in order to rebut the presumption of resulting trust. since it is well settled that a transferor cannot rebut a presumption of advancement by giving evidence of an unlawful intention, it cannot be good law to permit a transferee to rebut a presumption of resulting trust by such evidence. such a 'double standard' would be clearly contrary to justice and equity. the judgments in tinsley v. milligan in tinsley, nicholls and lloyd ljj reached the same conclusion though by somewhat different reasoning, whilst ralph gibson lj dissented. nicholls lj considered that cases such as tinker v. tinker32 and chettiar v. chettiar33 should not be interpreted as laying down an immutable rule "that in every instance where a transfer of property is made for an illegal or dishonest purpose, and that purpose is carried into effect, the transferor cannot thereafter 28. [1992] 2 w.l.r. 508, at p. 530. 29. (1960] a.c. 167. 30. at p. 176. 31. (1975) 239 e.g. 121. 32. [1970] all e.r. 540 (c.a.). 33. [1962] a.c. 294 (p.c). 99 the denning law journal look to the court for assistance in obtaining a transfer, whatever the circumstances" ,34nor, in his view, did they establish any special principle peculiar to the law of trusts. his lordship considered that these were merely examples of cases in which, in particular circumstances, the court decided that to grant relief to the plaintiff would have been an affront to the public conscience. it is submitted with respect that it is incorrect to analyse the tinker line of cases in this way. they were actions in equity where the court was being asked to admit evidence in rebuttal of an equitable presumption of advancement, and where the 'clean hands' maxim, not the common law ex turpi causa principle, was being applied. it may well be that in this area the streams of common law and equity now run in the same channel and that their waters have become mixed, but it is only very recently, and certainly subsequently to the tinker and cheuiar decisions, that this mingling has occurred. if the 'public conscience test', first enunciated in actions in tort, does apply to the equity cases, then this application may need the sanction of the house of lords or the privy council at some future date. that is not to suggest that it would be undesirable to apply such a test in equity cases such as tinsley v. milligan. on the contrary, such a test is sufficiently flexible to enable the court to consider all the relevant circumstances, including the relative blameworthiness of the parties, the degree of unlawfulness of the purpose and the extent to which it has been, or could be, carried out, the value of the property and the possible loss to the revenue, and any other matters which the court ought to take into account in deciding whether recovery should be permitted.35 another main feature of nicholls lj's reasoning was what he called "the non-confiscation approach". as we have seen, in singh v. ali lord denning had stated that "the court does not confiscate the property because of the illegality it has no power to do so so it says, in the words of lord eldon: 'let the estate lie where it falls' ."36nicholls lj took the view that the 'non-confiscation' principle (which was the basis of the exception that a transferor may recover property transferred for an unlawful purpose ifhe can assert his legal title without having to disclose that purpose) was as applicable to equitable interests as it was to legal estates. thus, on the facts in tinsley, "if the court will have regard to and will enforce the plaintiffs legal title and will disregard the fraudulent purpose for which that title was vested in her alone, surely the court must also have regard to the equitable title vested in the defendant and give her like assistance."37 thus nicholls lj held that the defendant's counterclaim succeeded both on the above ground and on the ground that, far from it being an affront to the 'public conscience' to grant relief, it would be an affront to the 'public conscience' not to do so; for to refuse to grant relief to the defendant would be to deprive her of her own property, which would be a disproportionate penalty.38 34. [1992] 2 w.l.r., at pp. 518, 519. 35. see scott on trusts 3rd edn., vol. v, para. 422.5. 36. see nn. 29 and 30, supra. 37. at pp. 519, 520. 38. [1992] 2 w.l.r., at p. 516. 100 a fresh approach to the ex turpi causa and 'clean hands' maxims lloyd lj reached the same conclusion as nicholls lj, but by a slightly different route.39 in his view, the defendant did not need to rely on the illegal purpose to establish the common intention (i.e., that the house was to be held on behalf of both parties in equal shares) on which her claim rested. although the defendant was bound to answer in cross-examination that the purpose for putting the house in the plaintiff's name rather than in joint names was to deceive the dss, this illegal purpose did not taint the defendant's claim, as it was "purely collateral or incidental". it was "relevant only as a matter of history." his lordship was not convinced that it was necessary to create a separate category of 'non-confiscation' cases. in his opinion, it was preferable to regard them as being cases where the plaintiff was not seeking to enforce, or found his claim on, an illegal transaction. he then went on to say that there was a second question to be asked, namely, whether, despite the finding that the claim was not based on an illegal transaction, the court should nevertheless refuse to entertain the claim on overriding grounds of public policy. lloyd lj found the 'public conscience' test imprecise and difficult to apply, but he considered that he was bound by recent decisions which had approved it. in the instant case, it would not, in his opinion, affront the 'public conscience' or shock the ordinary citizen for the court to entertain the defendant's claim to a beneficial half-share in the house. as for the tinker principle, lloyd lj saw no reason why the court should not, in its equitable jurisdiction, adopt the more flexible attitude shown by the common law. in this connection, it is noteworthy that nicholls lj had also emphasised that the 'clean hands' maxim was to be applied no less flexibly than its common law counterpart, and that it could not be that equity, "rooted in giving relief against unconscionable conduct, shuts its eyes and applies a rigid rule when the common law acts with its eyes wide open to all the circumstances. "40 ralph gibson lj, dissenting,41 considered that the questions to be answered were: (i) whether the defendant's counterclaim was within the 'clean hands' principle as applied in cases such as tinker; (ii) if it was, whether more recent cases had modified that principle. he answered the first question in the affirmative, considering that the arrangement between the plaintiff and the defendant, under which the plaintiff was to be apparently the sole owner of the house, was at least as much a dishonest plot on the part of the defendant as was that of the husband in tinker's case. as for the second question, his lordship took the view that recent cases in which more flexible criteria such as the 'public conscience' test had been applied were actions based not on any illegal contract or arrangement but on some tortious conduct to which the illegality was merely incidental. it could not be said that any of these cases were directed to any modification of the rule in tinker's case. ralph gibson lj referred to the deterrent effect of a strict application of the 39. at pp. 532-535. 40. at pp. 518, 519. 41. at pp. 521-531. 101 the denning law journal ex turpi causa and 'clean hands' maxims and considered that the latter principle should be applied in the instant case. his final point was that the plaintiff was entitled to rely on her legal estate under the 'non-confiscation' principle since "when the court refuses to enforce a contractual right, or an equitable right, it leaves the party who successfully raises the defence in possession of whatever legal rights he has in the subject-matter of the contract or arrangement, as in gascoigne v. gascoigne and tinker v. tinker." it is respectfully submitted that although ralph gibson lj was correct in his view that cases such as thackwell, saunders and euro-diam were actions in tort, and were not directed to modification of the equitable 'clean hands' maxim as applied in tinker, it may well be desirable, as nicholls and lloyd ljj suggested, that the new flexible approach in those cases should be applied to the equitable maxim. quite apart from the need to balance the respective culpability of the parties, it is unsatisfactory that the rights of a transferor to claim a beneficial interest in property should depend upon whether a resulting trust (as in gorog v. kiss42 and, indeed, in tinsley) or an advancement (as in tinker and gascoigne43 is presumed. the result of this distinction is that, for example, a mother who pays for property and has it conveyed to her daughter in order to defraud the revenue may nevertheless claim a beneficial interest because a resulting trust in her favour is presumed and she is not driven to rely on the illegal purpose, whereas a father who does precisely the same with the same fraudulent intent will be barred because the presumption of advancement in the daughter's favour cannot be rebutted by evidence of the fraudulent purpose. application of the flexible test in the thackwellline of cases would make it unnecessary to consider whether a resulting trust or an advancement was to be presumed. conclusion the judgments of nicholls and lloyd ljj in tinsley v. milligan have emphasised the current judicial thinking as regards the application of the ex turpi causa and 'clean hands' maxims. it seems that the courts now see the two maxims not as separate principles but as expressions of the same broad principle, founded on public policy, that the court will not entertain an action in contract or tort or to establish an equitable right if to do so would be an affront to the public conscience. there is no rigid rule that where a contract or arrangement is tainted with illegality, the court will 'draw up its skirts' and refuse all relief, as has sometimes been suggested. rather, the court should attempt a balancing exercise in which the relative blameworthiness and moral culpability of the parties is considered. the judgments also affirm the principle that where a claimant seeks recovery of property transferred under an unlawful agreement or arrangement he will be entitled to recovery if he can establish his title without having to disclose the unlawful purpose, and that this applies as much to an equitable as to a legal title. 42. see n. 25, supra. 43. see nn. 19,20, supra, and accompanying text. 102 85 the denning law journal 2018 vol 30 pp 85-116 community property claims in the personhood perspective: part 2 natalie pratt 1 introduction this is the second instalment of a two-part article series aimed at examining community property claims through the lens of the personality theory of property. the overarching aim of these two articles is to expose the imbalance between communal and private property arrangements by justifying communal property claims through the use of the personality theory of property (also referred to as ‘property and personhood’, or the ‘personhood perspective), which is traditionally used to justify private property claims. it is argued that if a community of users can establish a claim within the personhood perspective, that claim should be treated with the same respect as a private property claim founded through the same mechanism. where competing claims to natural resources exist (with a specific focus on land), it should not always be the private property claim of an individual landowner that takes priority when the other claimant is a community of users. if both claims can be justified through the same mechanism, both should be treated with equal weight and consideration. it will be remembered from part i that the hegelian and neo-hegelian conceptions of the personhood theory were introduced. in particular, the work of professor radin was explored. radin presented a theory in which a fully constituted person projects his personality into the world and embodies their will and personality in external objects. the property relationships that arise from the projection allow the individual to express himself in the outside world. radin’s formulation of the personhood theory is labelled as an ‘intuitive view’, and suggests that people possess objects that they feel are almost part of themselves because they “constitute ourselves as continuing personal entities in the world”.1 in order to differentiate between those property claims that originate from the binding of ones personality with an object, and those that derive from  teaching fellow, dickson poon school of law, king's college london. 1 mj radin, ‘property and personhood’ (1982) 34 stanford law review 957, 959. community property claims in the personhood perspective: part 2 86 purely instrumental means, a personal/fungible dichotomy of property claims was introduced. it was noted in part i that the traditional role of a community in the personality theory of property is to act as an audience to property claims. in order to elevate the community to a position from which it can project its will into external objects requires a fundamental change in the way that society views a group, and also the inner workings of a group. in particular, the group must adopt one collective will that can be projected into the external world, rather than consisting of a collection of disparate and conflicting wills. professor waldron did not feel that such a change was an insurmountable hurdle, as the will of each individual is that “the goals of the community to which he belongs should be pursued and realised”.2 therefore, the real task is in establishing the collective goal of the community, and uniting its members. the first step in the process of establishing a community that is able to project a united will into the external world was to establish which type of common-property regime this series of articles seeks to justify. after sampling a number of works, an undertaking that can be explored fully in part i of this series, it was established that the most sensible inquiry was to use the personality theory of property to justify a limited access common-property regime. as a result, and using the influential works of professors ostrom and clarke, 3 six community characteristics were proposed. these characteristics are fundamental for the establishment of a community that has the potential to project its will and personality into the external world and establish personal-property claims over natural resources, thus giving rise to a limited access common. the required six community characteristics are: exclusion of non-members, mutual selfinterest, homogeneity of interest, cohesiveness, idiosyncratic regulation and sanctions. the closing assertion of part i of this series was that, if a community exhibits the six required characteristics, and as such possesses a united collective will, there is no reason why this will cannot be projected into the external world and embodied in objects and resources. the projection and embodiment of will in such a way gives rise to a personal-property claim, as understood by the personality theory of property, which should 2 j waldron, the right to private property (oup 1988) 347. 3 see in particular a clarke, ‘creating new commons: recognition of communal land rights within a private property framework’ (2006) 59(1) current legal problems 319. the denning law journal 87 in turn defeat any competing fungible claims that often (but not always) characterise private property. 1.1 part ii this instalment of the two-part article will apply the personality theory of property to the limited number of community claims that are recognised in english law. it will be shown that the personality theory of property is not yet operative in the community context, and does not protect community entitlement in the way that it protects the entitlement of private individuals. this instalment also explores why community entitlement to property fails to adhere to the personality theory, and points to the inconsistency between the nature of the community claim and the dominant narrative in property discourse. finally, it will be suggested that whilst recent political initiatives purport to have given greater weight to community entitlements to property, this is in fact a ruse. the outcome of the policies aimed at recognising the community claim is little more than a perpetuation of the preference for private property initiatives. the reluctant conclusion of this article series is that a community of users cannot establish an entitlement to the resource that they use through the personality theory of property. whilst in theory claims of a community should be respected in the same way as claims of individuals under the personhood perspective, this is impossible as long as the dominant narrative of property is that of the self-interested individual. the english legal system does not understand the nature of communal claims, and all attempts to introduce policies and mechanisms that recognise and accommodate community claims to land have proved ineffective. allocation of, and entitlement to, natural resources not only relies on the dominant property narrative, but also the political climate in which the narrative is developed. the political climate is such that promoting community entitlement to property is not advantageous to realising the economic aims of the government, which, in light of the recent economic downturn, and negative economic forecast following the united kingdom’s decision to leave the european union, can only really favour the instrumental and fungible property claim. 2 personal and fungible claims in the community context now that the theoretical framework of property and personhood and the requisite community characteristics have been identified, the remaining step is to assess the usefulness of the application of the community property claims in the personhood perspective: part 2 88 dichotomy in justifying communal property claims. if the property and personhood theory is a sound justification for limited access communal property claims, these communal claims should be protected, and prioritised insofar as they are personhood-constituting claims. however, western legal systems do not, as a general rule, recognise communal property holding. there are only a small number of communal property claims that exist in english law, and even these are limited and under-developed. to assess whether the personhood perspective can justify these limited examples, they shall be analysed in the light of the personal/fungible dichotomy introduced in the first instalment of this twopart article series. the examples that will be pursued are rights of common over common land, the town or village green regime and assets of community value. if the personhood perspective does apply to communal property claims, these claims should be protected from competing fungible claims and lead to a stable community entitlement to property. however, as will be seen, this is far from the reality. 2.1 competing claims: the continuum the methodology for assessing whether communal property claims adhere to the personality theory of property employs the use of a continuum. at either end of the continuum appear the personal/fungible dichotomous claims. claims are then plotted on the continuum in a position that is commensurate with the level and nature of their interest. those claims that are further towards the personal end of the continuum will have the status of personal-property claims, and those that appear towards the fungible marker will attain the status of fungible claims. in a clash of competing claims, those that are plotted further towards the personal marker will prevail over those that are plotted closer to the fungible marker; such is the normative effect of the personhood perspective. therefore, if every claim could be plotted in this visualised way, there could be an instant assessment as to which claims should take priority over others. if two competing claims were plotted in exactly the same position, the method of adjudication between the claims would be a concept familiar to both property lawyers and the personality theory of property: time. the claim that was established first is the claim that takes priority. to illustrate the use of the continuum: figure 1 depicts a claim that would be treated as personal, and which would take priority over a claim plotted in the way that figure 2 depicts, which is fungible. there is a presumption that that those who hold land purely for instrumental value, the denning law journal 89 such as for commercial investment, will have a fungible claim to the property; and similarly those who use the land for residential or domestic purposes will be presumed to have a personal-property claim. however, the continuum does not shackle the property claim to its initial categorisation; the claim may move between fungible and personal, which is in accordance with radin’s personhood theory,4 as the claim can be simply re-plotted. furthermore, when adjudicating between competing claims, the continuum does not always assume that the paper-titleholder will only have a fungible claim, and that parties who use the land will establish a personal claim. the continuum allows the claims of all competing parties, or indeed communities, to be appropriately plotted on the continuum and document the wide range of interests that may exist. however, in order for the continuum to work satisfactorily, it is in fact the strength of the personal claim that should be documented on the continuum. for example, if person a valued their land as both an investment and as their home, and that value was evenly split, their interest would be plotted at the midpoint on the continuum. if person b only valued their land as their home, and had no regard for its value as an investment, their interest would be plotted almost squarely on the ‘personal’ marker on the continuum. if a competition arose between persons a and b over the land, the interest of b would be favoured on the basis that his interest leans further towards to personal end of the continuum than a’s. however, 4 mj radin ‘property and personhood’ (1982) 34 stanford law review 957, 966967. community property claims in the personhood perspective: part 2 90 plotting the interests in that way has no regard to the relative strengths of the personal value that persons a and b place on their property; it is assumed that person a places a lesser personal value on his land simply as a result of him also having a fungible interest. it is conceivable, and perhaps even inevitable, that devaluing a’s personal interest as a result of a concurrent fungible interest will cause an injustice. for example, b may have no fungible interest in the land because it is a holiday home in a falling market, and it was always intended that he would derive enjoyment from the property from its occasional use and he accepted that there would be no financial gain (and perhaps even financial loss). on the other hand, person a attributes both a personal and fungible value to their land as it is their only home, and is their greatest investment in which all of their wealth has been invested. in that context, it is difficult to justify why b’s claim would trump that of a, as the continuum dictates, given the clear disparity of the value of the land in favour of a. therefore, it is imperative that the continuum is instead used to evidence the strength of the personal claim, as opposed to the claim made on balance between the fungible and personal markers. to that end, person a’s interest would be plotted away from the midpoint of the continuum and further towards the personal marker; their personal claim is strong as the land is their only home. on the other hand, b’s claim would likely fall away from the personal marker; the land is only one of a number of homes that they inhabit, and is not imperative to their security and being. it should be also be noted that the personal/fungible dichotomy does not necessarily correlate to other dichotomies in property law, such as rudden’s ‘things as thing’/‘things as wealth’, 5 or the ‘use value’/‘exchange value’ dichotomy. use value, personal claims and things as thing cannot be used interchangeably. a commercial landholding may have a high use value, but would not be characterised as being valued for its status as a thing, nor as being subject to a personal claim. therefore the scope of the inquiry in this article series is narrowly focused, and there are other possible frameworks that could be pursued in further work. 2.2 common land the recognition of communal land rights in modern english law can be traced to the commons registration act 1965, now replaced by the commons act 2006. the 1965 act sought to preserve ancient commons 5 b rudden, ‘things as thing and things as wealth’ (1994) 14 oxford journal of legal studies 81. the denning law journal 91 through the registration of all communal rights and the land over which they were exercisable. the effect of the 1965 act was that all commons must be registered, and a failure to register a right of common and the land over which it was exercisable resulted in its extinguishment.6 communal land rights are a limited class, and have been defined as a right to ‘take or use some portion of that which another man’s soil naturally produces.’7 the class comprises six rights of common: pasture (right to graze), piscary (right to fish), turbary (right to take turf for fuel), marl (right to take sand or gravel), pannange (right to allow pigs to forage) and estover (right to take timber for housing). new rights of common may be created, but the circumstances in which this may happen are greatly restricted; no new rights of common may be created by prescription over land that is already registered as common land, as stipulated by section 6(1) of the commons act 2006, and recently reaffirmed in r (littlejohns) v devon county council. 8 new rights of common may only be created over land that is already registered as a common through express grant, and these new rights of common may not exist in gross.9 if a new right of common is created over land that is not already registered as common land, this will trigger the registration of the land as a common, as per section 6(5)(b) of the commons act 2006. finally, new grazing rights may be refused registration by the commons registration authority if the authority believes that the land cannot sustain the right and risks the over-exploitation of the land.10 variations of rights of common may be refused on the same grounds.11 the interests of the commoners (the collective name for those who hold a right of common) can be described as a personal-property claim for the purposes of the continuum, which should be plotted according to figure 1. the commoners do not use the land for financial profit, but for survival, sustenance, and in some cases, recreational value. historically the use of the common allowed the commoners to source food, fuel and materials for building their homes. in the modern context it is more likely that the exercising of many of these rights of common will be for recreational purposes (such as fishing), and those that are more 6 commons registration act 1965, s1(2)(b). 7 gw cooke, cooke’s inclosure acts (v&r stevens and sons & haynes 1864, 4th ed) 5. 8 [2016] ewca civ 446; [2015] ewhc 730 (admin). 9 commons act 2006, s6(3). 10 commons act 2006, s6(6). 11 commons act 2006, s7(5). community property claims in the personhood perspective: part 2 92 pragmatically focused and archaic are unlikely to be used. the anomaly to this observation would be grazing, as a commoner may graze animals on the common as part of their commercial farming activities, although the economic benefit of grazing may still be viewed as running to the heart of their survival and sustenance. furthermore, the commons register typically protects ancient rights of common, and it is likely that the commoners have developed as a community through their use of the common. the use of the common is the defining factor of their community and is likely to be constitutive of its identity. it would be unlikely that the commoners would be satisfied with an alternative plot of land, even if that land were able to support the same rights of common, because of the ancient nature of the rights that often are being exercised. the land is part of the community heritage, and is valued for this reason. therefore, the claim of the commoners is not a fungible claim; they have developed an attachment to the land, and thus their claim is personal. if the commoners do in fact establish a personal-property claim over the land, the use of the personhood perspective dictates that this should defeat the fungible interest of the landowner. in many ways this analysis holds true. the landowner is greatly restricted in the ways in which she may use the land, and may not carry out any works on the land such as fencing, erection of buildings or the digging of ditches or trenches without consent form the commons registration authority.12 almost every action that will result in preventing or impeding the access to the common will require consent from the registration authority, 13 and in determining whether to grant the consent, the commons registration authority should have regard to the interests of those commoners who exercise rights of common. the effect of the registration of land as a common is to remove most of the fungible value of the land. the landowner is unlikely to be able to use the land for his own ends, and the value that he can extract from the land for himself will be limited. contrary to first impression, it can be argued that the priority given to the personal property claim of the commoners is an illusion, and the scheme of commons registration does not entirely adhere to the personhood perspective. however, the challenge to the personhood perspective does not arise from the fungible interest of the landowner, but rather the general public interest. it will be remembered that this series of articles is concerned with establishing limited access commons through the use of the personhood perspective; this ambition is hindered with the 12 commons act 2006, s38. 13 commons act 2006, s38(2)(a). the denning law journal 93 scheme of commons registration as the limited access common enjoyed by the commoners is also subject to open access rights. for example, the common may be subject to the rights of public access under the countryside and rights of way act 2000, which prevents commoners from excluding persons who do not enjoy rights of common. furthermore, commons councils must have regard to the public interest when discharging their functions,14 not just the interest of the commoners, as should the commons registration authority when determining whether to grant consent for works on the common.15 no special weight is given to the interests of the commoners in this balance of considerations. if the personhood perspective were to hold true, the wider public interest would not affect the personal-property claim of the commoners. the personhood perspective is only concerned with claims that can be attributed to a distinct, defined and united will. typically this is the will of an individual, or, as this paper contends, the will of a community that exhibits the five required characteristics. the public interest is a wide category of interests that could not substantiate nor establish a claim under the personhood perspective, as it would not meet these requirements. therefore the public interest should not affect the entitlement of a community who have established a personal-property claim. one reason for this tension between the interests of the public and the commoners, and the inconsistency between communal land rights in english law and the personhood perspective more generally, can be traced to the assertions of professors bromley and clarke, which were noted in part 1 of this article series. there is a general and deep-set misunderstanding in our private property framework about the nature and different species of common-property. it is possible that this misunderstanding is manifested in the commons legislation of 2006 that appears to make provision for a limited access common, but is then subject to considerations that properly belong to an open access regime; a confusion that is not helped by peripheral legislation such as the countryside and rights of way act 2000. a further way in which the commons registration system fails to protect the personal claim of the community can be found in the provisions that allow for deregistration of common land.16 if the personal claim of the local community is to be prioritised it seems inconsistent with 14 commons act 2006, s31(6). 15 commons act 2006, s39(1)(c). 16 commons act 2006, ss16-17. community property claims in the personhood perspective: part 2 94 that prioritisation to allow for deregistration of common land and rights of common. the legislation attempts to strike a balance between the community claim and the fungible claim of the landowner that at least acknowledges that the community should not be deprived of the utility of the natural resource. sections 16(2) and 16(3) of the commons act 2006 stipulate that, if the land to be deregistered is in excess of two hundred square meters, a parcel of replacement land must be registered as common land. however, if the area of land to be deregistered is smaller than two hundred square metres, section 16(4) does not require that replacement land be registered, but leaves the option open should the registration authority wish to do so. the voluntary registration of replacement land does not protect the community entitlement, as the common may be lost and no replacement provided. furthermore, the provisions for mandatory registration of replacement land are not satisfactory for the purposes of protecting the personal community claim, as the notion of replacement land treats the claim of the community as fungible. it is assumed that the land that the community has enjoyed could be substituted for land that would be of equal value to the community; however, under the personhood perspective, this would not be possible, as the community would have bound its personality with the land. the nature of a personal claim is that the pain caused by the loss of the physical property cannot be remedied by providing replacement property. replacement common land will not have the same historic connection to the commoners who hold ancient rights of common. to suggest that the replacement land is a sufficient mechanism for protecting the community entitlement is misguided, and does not conceptualise the claim of the community in the appropriate way. finally, it may be argued that the community lacks the level of idiosyncratic regulation required in order to establish a collective will and a person-property claim in the first place. it is true that the commons registration scheme regime provides for some level of idiosyncratic regulation; part 2 of the commons act 2006 provides for the establishment of commons councils, which may manage the agricultural activities on the land, the vegetation on the land and the rights of common. however, the role of idiosyncratic regulation is diminished when it is remembered that the commons registration authority have the right to refuse registration of new grazing rights if it is thought that the land is unable to sustain this right. this decision-making power of the commons registration authority takes away some of the control from the commoners and the commons council, and places it with the state. it is clear that the strongest example of communal land rights in english law does not adhere to the personality theory of property, and the the denning law journal 95 personal-property claim of the community is not properly acknowledged and accommodated. the provisions for deregistration and replacement of common land, the removal of some of the commons council decision making power, the consideration of the public interest, and the fact that the instances in which new rights of common may be created are actually quite restricted all lead to the conclusion that the scheme of commons registration is not a an effective way of establishing a limited access common and community entitlement to land. 2.3 town or village green another community claim that is recognised through the commons legislation of 1965 and 2006, and which will now be analysed through the use of the personhood perspective, is the town or village green. land can be registered as a town or village green (‘tvg’) pursuant to section 15 of the commons act 2006 (previously section 22 of the commons registration act 1965). under the commons act it must be shown that the land has been used ‘as of right’ for lawful sports and pastimes for a period of at least twenty years by the inhabitants of a locality, or neighbourhood within a locality. the requirement that the use must be ‘as of right’ has been taken to mean the tripartite test of nec vi, nec clam and nec precario: that the use must be without force, without stealth and without the licence of the landowner.17 the rationale behind these factors was explained by lord hoffmann in r v oxfordshire county council, ex p sunningwell parish council as being that every legal system needs rules of prescription that protect long established de-facto enjoyment of land.18 each of these three factors gives the landowner the opportunity to object to the use by the local inhabitants; if they do not object, they are deemed to have acquiesced in the use of the land. in essence, village green law is underpinned by the principles of prescription in english law.19 village green registration confers rights of recreation upon the users of the land who are from the relevant locality or neighbourhood within a 17 r v oxfordshire county council, ex p sunningwell parish council [2000] 1 a.c. 335, 350h (lord hoffmann). 18 ibid at 349d. 19 village green law is described as being “traceable” to prescription by patten lj in taylor v betterment properties (weymouth) ltd [2012] ewca civ 250 [36]. community property claims in the personhood perspective: part 2 96 locality.20 these use rights are arguably proprietary as they operate in rem and attach to the land; the rights of the local inhabitants (the community) survive any transfer or conveyance of the land. the practical effect of tvg status is that the land cannot be used in a way that is inconsistent with the use rights of the local inhabitants, which promotes the social value of land, often at the expense of the economic value of the land enjoyed by the landowner. registration of land as a village green is often used as an attempt to thwart development, to the extent it has been referred to as “a weapon of guerrilla warfare against development of open land.”21 the tvg is a paradigm clash of claims over land. on the one hand there is the landowner who believes that they are absolutely entitled to the land, its capital value and, in most cases, exclusive control over its management and the right to realise the capital value. on the other hand there is the community (the inhabitants of a locality or neighbourhood within a locality) who engage in long use of the land and attribute other values to it; it is a social space and a recreational area, a space to which sentiments attachtheir children grow up using the land, memories are made there and relationships with the other users forged. for the landowner to realise the full potential of his entitlement he must be free of the interest of the community of users. he must be free to sell the land, build on it or put it to any use that he so wishes, even if this use is inconsistent with the community interest. for the community to realise the full potential of their entitlement their use must be protected, and all inconsistent uses and interferences must be prohibited. for the landowner and the community to co-exist it is a fine balance, and one that is easily tipped. legally, the landowner is in a far superior position: he holds the title to the land, and the community interest is hostage to the way in which he chooses to exercise his ownership rights. to redress the balance, legal recognition of the community entitlement is required, and this recognition is achieved through village green status. if the interests of the local inhabitants and the landowner are plotted on the continuum, they occupy the positions depicted in figures 1 and 2 respectively. the local inhabitants establish a personal-property claim, owing to the social value that they attribute to the land, whereas the 20 r (oxfordshire and buckinghamshire mental health nhs foundation trust) v oxfordshire county council [2010] ewhc 530 (admin) [80] (hhj waksmann qc). 21 r (lewis) v redcar and cleveland borough council and another [2010] uksc 11 [48] (lord walker). the denning law journal 97 landowner leans towards a fungible claim. the local inhabitants would unlikely be satisfied with replacement land as any replacement land that had not been used for the requisite twenty year period would not have the same social value to the local inhabitants; there would be no long use from which the local inhabitants can form a connection constitutive of their identity. the landowner himself may have some tendencies that are consistent with a personal claim, however, by virtue of the fact that a community of users has been making use of the land for such a prolonged period it is unlikely that he regards the land as being constitutive of his personality. furthermore, the landowner would likely be sufficiently compensated by either replacement land, or the monetary value of the land subject to the use of the local inhabitants. the consequence of these observations should be that the community entitlement takes priority over the entitlement of the landowner. this certainly appears to be the case at first glance, as the landowner is restricted in his entitlement to the land as he is prevented from using the land in a way that is inconsistent with the use rights of the local inhabitants. it seems as if the tvg regime adheres to the personhood perspective; however, the substance of the protection afforded to the community entitlement tells a rather different story. village green registration is not the stable protection of community entitlement that the personhood perspective envisages. recent changes to the regime give a much weightier consideration to the landowner and the fungible claim, and markedly reduce the protection given to the personalproperty claim of the community. for example, the growth and infrastructure act 2013 amended the commons act 2006 to introduce additional bars to registration of land as a tvg. section 15c now provides that registration will be barred where a trigger event under schedule 1a, which are all linked to planning applications, has occurred. there is a tremendous housing land supply shortage in england and wales, and the sterilisation of potential development sites by village green registration is proving controversial. any landowner who is seeking to realise the value of his land through development can thwart the rights of the community by submitting a planning application, which then tips the balance of protecting entitlements back in his favour. furthermore, the personal-property claim of the community can be defeated by showing that the local inhabitants used the land pursuant to a statutory right to do so, as established in r (barkas) v north yorkshire county council.22 the circumstances in which a successful application for village green registration can be made are rapidly narrowing, and the community 22 [2014] uksc 31. community property claims in the personhood perspective: part 2 98 entitlement is increasingly left without protection, regardless of the personal nature of their property claim. the fungible claim is taking precedence in the battle between competing claims. additionally, the provisions that apply to deregistration and replacement of common land also apply to town and village greens. as explored above in the context of common land, these provisions are wholly inadequate for the purposes of protecting the community entitlement, and mischaracterise the community claim as fungible. the failure of the tvg regime to adhere to the personhood perspective and favour the personal claim is not an anomaly in english law. most community entitlements suffer the same emasculated fate as the tvg legislation. the only way in which the failure of the personhood perspective in the context of the tvg can be defended is to question the characteristics of the community. it is questionable whether the local inhabitants possess all six of the characteristics required to present a united will that could be embodied in property in the way that waldron suggested, as discussed in the first part of this article series and noted above. in particular, there may be an absence of idiosyncratic regulation. the community certainly possess the other required characteristics; indeed, the legal test for registering land as a village green requires them. the community must be cohesive and mutually self-interested, nonmembers of the community upon whom no rights have been conferred can be excluded from the land, and there is homogeneity of interest, and sanctions in the law of trespass if the scope of the use rights is exceeded (although, these sanctions are not imposed by the community in the way that professors ostrom and clarke suggested). however, there is no idiosyncratic regulation in the tvg community. the only control that the local inhabitants have over the use will be determined by reference to the use over the requisite twenty-year period; the scope of of the legal right acquired by the local inhabitants will be set according to the scope of the use over the twenty years, and the local inhabitants may not exercise any further control or use of the land that was not engaged in during the acquisition period. therefore, it is the landowner himself who often regulates the use of the land and determines who else may use it, not the local inhabitants. furthermore, when regulating the use of the land, the only duty by which the landowner is bound is a duty not to interfere with the use of the relevant inhabitants. in theory, the lack of idiosyncratic regulation weakens the argument for the community claim of a tvg to be protected though the framework of the personal-property claim. however, in reality the communities of local inhabitants often form interest groups that regulate the use and maintenance of the land, especially when the landowner has no use for the the denning law journal 99 land following its registration as a tvg. as with commons councils, the formation of these groups is not mandatory, nor are their regulations legally binding; yet, these groups are different from commons councils as they are not grounded in statute and afforded the same powers. nonetheless, community interest groups do go some way to strengthening the presence of the required community characteristics. one example of such a group is ‘the friends of the trap grounds’, which was established to campaign for the protection of the trap grounds in north oxford. this land became the subject of the landmark case oxfordshire county council v oxford city council and another,23 which, following lengthy litigation, resulted in the registration of an area of scrubland as a tvg (in in light of more recent case law it is unclear whether the land would be registered if these circumstances arose now). the interest group now runs regular ‘work parties’ to maintain the land, holds an annual agm, engages in educational activities and monitors the use of the land and wildlife. it seems very difficult in a situation such as this to suggest that the community does not possess the necessary characteristics to substantiate a personhood claim. 2.4 assets of community value the final community interest that will be considered in the framework of the personhood perspective is the asset of community value (‘acv’) scheme, which was introduced as part of the wider movement of community empowerment under the localism act 2011. the department for communities and local government observed that “[o]ver the past decade communities have been losing local amenities and buildings of great importance to them|”. 24 a solution to this predicament that has been adopted is the assets of community value listing scheme, introduced by part 5, chapter 3, of the localism act 2011, and supplemented by the assets of community value (england) regulations 2012. the scheme allows community interest groups 25 to nominate land that is valued by the community to be included on a list of community assets. land of community value is taken to mean land that “furthers the social wellbeing or social interests of the local 23 [2006] ukhl 25. 24 department for communities and local government, assets of community valuepolicy statement, september 2011, 4. 25 see assets of community value (england) regulations, regulations 5, 12 and localism act 2011, s89 for definitions. community property claims in the personhood perspective: part 2 100 community”, 26 with ‘social interests’ further dissected to mean either religious, cultural or sport interests.27 if the land is accepted for listing the community interest is protected in the sense that, if the landowner chooses to dispose of the land,28 the community interest group are given a period in which to prepare a bid to purchase the asset. when the landowner indicates to the relevant authority his intention to sell, he triggers an interim period of six weeks (known as a ‘moratorium’) in which the community must express in writing its intention to make a bid.29 if the community interest group evinces this intention within the six weeks, this period is extended to six months, in which the community must prepare and present their bid to the landowner. on initial inspection, the acv scheme appears to recognise a personal-property claim in favour of a community. the social interests of the community and its connection with the land is formally recognised and protected through the listing of the asset, which may in turn lead to its acquisition by the community. the claim of the community is treated as personal rather than fungible, as it is the particular listed asset that is protected, rather than the securing of a replacement asset. allowing communities to list assets of social value, with a view to their possible acquisition, can be extremely beneficial to a community. for example, the moratorium period alleviates the pragmatic and organisational problems that would plague a community group trying to put together a bid, which a private individual would not face, and gives ample time for the bid to be drafted and agreed upon by all the community members. furthermore, the facilities that can be listed as an acv are wide-ranging and include pubs, recreation grounds and local amenities. only residential dwellings are excluded from potential acv listing. 30 therefore the community interest is recognised in a diverse range of situations, and can be recognised over land that is privately owned. 26 localism act 2011, s88(1)(a). 27 localism act 2011, s88(6). 28 the only dispositions that are qualifying for these purposes are a disposition of the freehold interest with vacant possession and a grant of a lease for 25 years or more, see localism act 2011, s96; see also s95(5) for a list of excluded dispositions. 29 localism act 2011, s95 and assets of community value (england) regulations, regulation 13. 30 assets of community value (england) regulations, regulation 3 and schedule 1. the denning law journal 101 the fungible property claim of the landowner will be restricted by the listing of their land as an acv, as they are required to allow the community to bid and must wait for them to do so. in addition, the personal claim established by the community affects the fungible claims of the landowner as designation of land as an acv is a material planning consideration.31 this may hinder or prevent the development of the land by a landowner who is seeking to realise their fungible claim over the land. when the interests are plotted on the continuum the claim of the community seems to align squarely with figure 1, with the claim of the landowner often at figure 2, and it seems that the personal interest does indeed outweigh the fungible interest. however, when more thoroughly analysed, designation of land as an acv does very little to raise a presumption in favour of the community entitlement. for example, the type of group that can be recognised as a community interest group is limited by the statutory definition at regulations 5 and 12 of the assets of community value (england) regulations 2012. the group must have legal personality and be capable of holding title to property, which immediately discounts those communities that have not formalised their relationship in law, even if they have the required six characteristics. as noted throughout this article series, legal formalisation of the community relationship is a problem that plagues communal property arrangements more generally, and prevents de facto common-property arrangements being recognised in law. furthermore, the right is neither a right to buy, nor a right of pre-emption; at best it is a right to be informed of the owner’s intention to sell or grant a lease for 25 years or more. the only real benefit of the listing of the asset, which the landowner can apply to have reviewed,32 is to afford the community a greater amount of time in which to assemble their bid, yet there is still no guarantee that the landowner will consider their bid. the only duty that acv listing imposes on the landowner is a duty to wait and see if the community wish to bid for their land; it is little more than an inconvenience to him. additionally, once the moratorium period expires, the landowner enjoys an eighteen month protected period where no 31 department for communities and local government, assets of community valuepolicy statement september 2011, 4. see also department for communities and local government, community right to bid: non-statutory advice note for local authorities october 2012, para 2.20. 32 localism act 2011, s91. community property claims in the personhood perspective: part 2 102 further moratorium can be triggered.33 the community bid, and thus the personal claim of the community, is at the mercy of the market and other fungible claims over the land. a private purchaser could easily out-bid the community, or the landowner could wait out the moratorium period, and the personal-property claim of the community would be defeated by the landowner’s fungible claim as they sought to realise the highest value of the land. in substance, the acv scheme does not adhere to the personhood perspective, and it does not operate to protect and prioritise the community claim. 3 barriers to recognition the three examples given above demonstrate that the property and personhood theory does not hold true for communal property claims in england. if anything, the strength of the entitlements plotted on the continuum operates in reverse when a community makes the personal claim, as the claims plotted towards the fungible marker seem to represent a stronger entitlement. this seems difficult to accept, as the reason for attempting to protect and prioritise these claims is not because they are communal, but because they are personal-property claims, which, in the personhood perspective, carry the strongest entitlement. private property enjoys the privilege of being able to invoke the personhood perspective, and there seems no reason why it should not extend to a community, provided that the community exhibits the requisite characteristics to attain personhood status. therefore, there appears to be a prejudice against communal property entitlements. professor radin identifies what may be the cause of the failure of communal property claims to conform to the traditional application of the personhood perspective: “if a dichotomy telescoping this continuum to two end points is to be useful, it must be because within a given social context certain types of person-thing relationships are understood to fall close to one end or the other of the continuum, so that decision makers within that social context can use the dichotomy as a guide to determine which property is worthier of protection.”34 33 assets of community value (england) regulations 2012, regulation 13; localism act 2011, s95. 34 mj radin, ‘property and personhood’ (1982) 34 stanford law review 957, 987. the denning law journal 103 professor mcdonald expresses the problem through the rights-duty correlate. he argues that if those who will be duty bound by the property rights that arise as the consequence of the communal property claim do not recognise those duties, there will be no recognition of the community’s property right. the group must be understood to be a right holder vis-à-vis others in society.35 therefore it seems that the continuum will only work when the relationship between the person and the thing to which the person is laying claim is understood. if the relationship is not understood, the entitlement of the person to the thing claimed will not be properly understood and respected. as the personhood perspective works perfectly well when an individual claims an entitlement to property (consider for example the rights of persons in of actual occupation contained in the land registration act 2002), and the only variant presented in the application of the personhood perspective in this inquiry is to substitute the individual for a community, it must be the presence of the community that causes the application to fail. the simple fact is that the decision maker plotting the claims on the continuum in the context of the english legal system, and the conception of property that the english legal system employs, does not understand the person-thing relationship when the person is not an individual seeking to establish private property, but rather a community seeking to establish a communal entitlement. as the relationship between a community and a resource is not universally understood, it does not feature in the calculation for allocating resources. it is this lack of understanding about communal property that has ostracised community entitlement to natural resources, and prioritised private property and the fungible property claims of individuals over personal property claims of communities (as demonstrated above). for example, the lack of understanding about the nature of communal property is arguably what causes rights of common in the commons registration scheme to not enjoy an inherent priority over the claims of the general public. the open access rights of the general public usurp the rights of the commoners in the management of the common, as the wider ‘public interest’ must be considered in the management strategies of the common. indeed, the conflation between limited access and open access communal property is rife throughout the commons literature, and is a 35 m mcdonald, ‘should communities have rights? reflections on liberal individualism’ (1991) 4 canadian journal of law and jurisprudence 218, 220. community property claims in the personhood perspective: part 2 104 mistake that hardin himself makes in his landmark paper ‘the tragedy of the commons’.36 to conclude that the non-understanding of the person-thing relationship, where the person is in fact a community, is the cause of the failure of the personhood perspective in the context of community claims is not surprising. it is something that is both explicit and implicit throughout commons scholarship, and a major contributing factor in the marginalisation of communal property arrangements. the more pertinent question is why do the decision makers, and the english legal system, not understand the person-thing relationship between the community and the land. 3.1 universal understanding of property signals the reason for the misunderstanding (or non-understanding) of communal claims can be found in the scholarship of professor rose, who discusses the signalling of property ownership. she notes that possession is typically the basis of ownership. possession communicates or gives notice to others of the possessor’s entitlement, an entitlement that is recognised in law.37 therefore, those who take possession of resources establish their entitlement and are recognised as owner. it is also often the case that the primary method of signalling entitlement, the act of taking possession, is supported through some secondary symbol, such as formal registration. rose’s account of property signalling cannot accommodate the property signals that a community transmit to the rest of the world. in the examples given in this paper, and with communal property more generally, the community does not ‘possess’ the resource over which it lays its claim. rather, the community establishes its entitlement by individual members of the community using the resource, and sharing it with the other members of the community. in the context of a private property framework this sharing does not signal an owner-like entitlement; there is no exclusion of all others from the resource in the way that blackstone envisaged, and there is no act of possession by one person. nonetheless, it seems that the english legal system has the potential to be able recognise a community entitlement to a limited access common; 36 g hardin, ‘the tragedy of the commons’ (1968) 162 science 1243. 37 c rose, property and persuasion: essays on the history, theory and rhetoric of ownership (westview press inc. 1994) 16, see also chapter one generally. the denning law journal 105 and it would require a small step to achieve this. it was noted in the first article in this series that, for a successful mutual self-interest common, the resource must be “just as private to the community as private property is to the private property owner.”38 it was further argued that the community must exclude non-members of the community from the use of the resource, which led to the observation that limited access communal property bears some resemblance to private property 39 (although this resemblance was later limited through an analysis of the alienability of communal property). if these contentions are true, it is difficult to understand why the personhood perspective does not hold true for the community claim in the same way as it does for private claims, as they both share the same core of exclusion rights. the characteristics of the group seem to mirror the private individual in such a way that should allow the personhood theory to justify the personal claim of the community. therefore, there must be something else in the characteristics of the community that sets the quality and signalling of its personal claim aside from that of the individual. one possible solution is that, in reality, the community does not exclude others from using the resource, but rather they exclude others from exercising the same rights as themselves over the resource. for example, the local inhabitants in whose favour land has been registered as a tvg are able to exercise the rights of recreation that have been conferred on them, and no such rights are conferred on those who fall outside of the relevant locality or neighbourhood within a locality. others may still use the land, but they may not do so in a way that is inconsistent with the rights of the local inhabitants, and the landowner may still exclude them. similarly, only commoners who possess rights of common may exercise these rights, but this does not preclude others from using the common, provided that they do not interfere with the rights of common. finally, those who fall outside of a community interest group do not enjoy the right to trigger a moratorium period when a landowner proposes to sell an acv (however, it should be noted that the community interest group who triggers the moratorium does not necessarily need to be the same group that successfully applied for acv listing of the land). 38 a clarke, ‘creating new commons: recognition of communal land rights within a private property framework’ (2006) 59(1) current legal problems 319, 329. 39 c rose, property and persuasion: essays on the history, theory and rhetoric of ownership (westview press inc. 1994) 117. community property claims in the personhood perspective: part 2 106 the above observations are important because, as argued by professor rose, the property signal “must be in a language that is understood, and the acts of ‘possession’ that communicate a claim will vary according to the audience”.40 the audience in the context of the english legal system are those who operate in a private property framework. this audience does not understand shared use where the only exclusion is from the particular bundle of use rights exercised by a community. such use is not an act of possession that will communicate a claim to the audience, as it is not communicated in a language that the audience will understand, and this is the crux of the problem for the community claim. whether the property claim is fungible or personal makes no difference for a community; the real hurdle is that the audience understands the property signals of individuals, not communities. 3.2 dominant property narrative the audience to property signals understand the dominant narrative of property discourse, and this narrative and understanding of the institution of property does not accommodate communal entitlement. the dominant narrative suggests that individuals have a natural desire to possess property. “the first instinct of the individual is to live and to prefer their own lives to the lives of others”,41 and life depends on property and the ability to appropriate resources for individual sustenance. 42 therefore, there is the desire to keep resources for one’s self and, when those resources become scarce, exclude others from sharing in its use; this has become widely regarded as the classical view of property. therefore, in a world of scare resources, individuals become concerned with private property and maximising their entitlement in the allocation of resources. individuals want to retain resources for their own use, and will exclude others to do this. under the dominant narrative, this proposition is true even in communal property arrangements. the choices that face the individuals in a common-property arrangement where there is not enough of the resource to satisfy the preferences of every individual can be demonstrated in the well-known prisoners’ dilemma diagram below. in the diagram, to ‘cooperate’, members of the community would need to forgo some of their own use of the resource to ensure that the 40 ibid at 16. 41 t hobbes, leviathan (prometheus books, 1988) chapter 20. 42 j locke, two treatises of government (cambridge university press, 2013) second treatise, sec. 28. the denning law journal 107 resource can sustain the use of the other members of the community. to ‘cheat’, members of the community would maximise their use of the resource and take all that they can, with little regard for the amount of the resource remaining for the use of other members of the community. a. cooperates a. cheats b. cooperates a gets a good allocation, b gets a good allocation. a gets lots, b gets nothing. b. cheats b gets lots, a gets nothing. a gets a small allocation, b gets a small allocation. if ‘lots’ is taken to be x, a ‘good allocation’ is > x/2. a ‘small allocation’, would then be < x/2. this makes it easy to see which combination of actions give rise to the best solution for all, and the greatest overall product of the resource: cooperate cooperate 2 ( > x/2) cheat cooperate x cooperate cheat x cheat cheat 2 (< x/2) the best solution for the members of the community entitled to use the resource is to adopt a cooperate-cooperate arrangement, as the cumulative product of the resource is enhanced: 2( > x/2) = > x. if a cheatcooperate or cooperate-cheat situation emerges, then the resource will only ever produce x, and if a cheat-cheat situation occurs the resource will not even produce x as 2(< x/2) = < x. by choosing a cooperate-cooperate scenario, every member of the community will get a good allocation of the resource to meet their needs, and the resource can sustain the allocation and use. furthermore, the cumulative product of the resource is enhanced. therefore, to make a common-property regime work, every member of the community must choose to cooperate. however, professor rose illustrates that the cooperate-cooperate arrangement is rarely reached.43 the preference orderings of individuals do not lead to a relationship of sharing in which entitlements are equal, but rather a relationship in which the individual making the decision whether to cooperate or not gains the greatest possible entitlement. this does not mean that individuals do not wish for others to get a good 43 c rose, property and persuasion: essays on the history, theory and rhetoric of ownership (westview press inc. 1994) chapter 2. community property claims in the personhood perspective: part 2 108 allocation of the resource, and they are happy for others to receive an equally valuable allocation as themselves, provided that it does not impinge on their own. it is when the allocation of others affects their own allocation that individuals develop the ruthless self-interest that leads them to exclude others from the resource. the individual self-interest develops in order to protect ones’ own allocation, and will always arise when the resource becomes scarce. even those anomalous individuals who do not follow the classical theory of property and choose to share property fall foul of the prisoners’ dilemma when the resource becomes scare; they too do not choose a cooperate-cooperate strategy. for example, those members of society who buck the trend and are benevolent have a genuinely greater concern for others than they do for themselves will opt to go without. they will opt to participate in a cooperate-cheat arrangement, in which they cooperate. although this achieves their aim of giving others a greater allocation of the resource, it does not maximise the cumulative product of the resource. professor rose suggests that the only individuals that will engage in a cooperate-cooperate arrangement and pursue the collective well-being will be those who “[do] not put her own well-being above yours, but is not a fool about needless self-sacrifice either”.44 she also demonstrates through a thought experiment that these individuals are in the minority,45 and that a cooperate-cooperate arrangement will only exist if all the members of the community share this disposition. as soon as one selfinterested individual infiltrates the community, there will be a ‘cheat’, and the product of the resource diminishes. in short, the majority of society is either far too self-interested, or keen to fall on their sword, to choose a cooperate-cooperate scenario and maximise the product of the resource for the collective well-being. 3.3 consequences if the dominant narrative is as presented, it is no wonder that a community of users who select a cooperate-cooperate relationship and successfully manage a resource are not understood. whether their claim is fungible or personal makes no difference, it is the prospect of having a successful communal property regime in which this claim can exist that is the stumbling block for the community. if the dominant narrative could rationalise communal property, then there would be no reason why the 44 ibid at 37. 45 ibid at chapter 2. the denning law journal 109 personal claim of a community could not be understood in the same way as that of an individual. however, as long as the cooperate-cooperate scenario and use by sharing is in the minority, this seems unlikely to happen. it seems that radin is correct to say that if the decision maker who is plotting the claim on the continuum and the audience to that claim do not have the necessary level of understanding, the dichotomy is useless as a guide to assessing which claims are worthier of protection. it makes no difference where the community claim is plotted on the continuum, as the person-thing relationship is not understood, and therefore the dichotomy is ineffective as a tool for adjudicating between competing claims of a community and a landowner. the outcome of plotting the community claim towards the marker of a personal claim, in practice, leads to a greater weight being placed on the fungible claim of the landowner, as it is the only recognised claim. this is in line with the dominant narrative that expects individuals to use resources by excluding others, and claims made by those who do not exclude others do not signal a claim that is recognised and protected when plotted on the continuum. if the interest plotted towards the personal marker had been that of an individual claimant, the personhood perspective would have operated to prioritise this claim and recognise that individual’s better entitlement against all fungible claims. however, in a narrative where the focus is on maximising individual wealth and entitlement, the community claim, and the maximising of collective well-being and sharing, will never be understood. 4 changing the dominant voice in property narrative professor rose notes that the “dominant storyteller can make his position seem the natural one”.46 therefore, as long as it is the selfinterested individual that is directing the property narrative, there seems little prospect of re-weighting the balance of the continuum to favour the personal claim of a community against fungible claims made by private individuals. in her exposition of the personhood perspective, radin suggests that a government concerned with the just distribution of resources could use the 46 c rose, property and persuasion: essays on the history, theory and rhetoric of ownership (westview press inc. 1994) 39. community property claims in the personhood perspective: part 2 110 personhood dichotomy as the source of a “distributive mandate”.47 under such mandate it would be the responsibility of the government to ensure that all citizens have the resources necessary to fully constitute their personhood. this may go so far as to require the government to “rearrange property rights so that the fungible property of some people does not overwhelm the opportunity of the rest to constitute themselves in property.”48 furthermore, if the concern is securing the resources required by each citizen to fully constitute themselves, it seems inconsistent not to afford the same concern to communities, especially where individuals can only constitute their personhood and identity within a community. interestingly, it seemed possible that there may be a shift in the dominant narrative of property rights. the conservative-liberal democrat coalition government of 2010-2015 set out to pursue a policy of empowering local communities, and give effect to community claims to resources. this is a policy that has supposedly been pursued for some time; in 2008 the then prime minister, gordon brown, pledged to pursue polices “enhancing the power of communities”, “ensuring that their voices were heard” and “helping people…set and meet their own priorities”.49 in 2010 david cameron was elected as prime minister with his vision of the ‘big society’, the ideology that communities should be empowered to solve their own problems, via a transfer of power from the state to the people and local communities. the end goal was to “create communities with oomphneighbourhoods who are in charge of their own destiny’ and communities that feel they can ‘shape the world around them”.50 the ‘big society’, whilst eventually abandoned, has resulted in a number of initiatives, which, although grounded in public law, have consequences for the allocation of, and entitlement to, resources. a prime example of such an initiative is the assets of community value scheme, discussed above. another example of the ‘big society’ ideology in practice is a scheme that allowed local communities to apply to the ‘big society bank’, a fund sourced by the state using the proceeds of dormant bank accounts, to receive funding to improve and support their 47 mj radin ‘property and personhood’ (1982) 34 stanford law review 957, 990. 48 ibid. 49 department for communities and local government, communities in control: real people, real power (cmd 7427, 2008) foreword. 50 david cameron, 18 july 2010. quoted from http://www.telegraph.co.uk/news/politics/david-cameron/7897445/davidcameron-launches-his-big-society.html accessed 10 april 2015. the denning law journal 111 community. four pilot areas were chosen, and the problem that these communities sought to address when given the power and funding to do so were problems of resource management. communities in windsor and maidenhead sought to manage their local park and protect the community entitlement to use it, which entailed preventing development and use that was inconsistent with the social value that the community placed on the park. in addition, a community in cumbria sought to secure funding to purchase their local pub that was in danger of closure. the community had formed an attachment to the pub over many years, providing the basis for a personal-property claim, which the funding from the ‘big society bank’ helped realise. first impressions of these schemes seem to suggest that the community claim over resources, and the entitlement to manage and direct how a resource should be used, is being recognised. not only that, but the government are also actively promoting and enabling communities to realise their claim and entitlements. most of the schemes stop short of transferring title to the land and resources in question to the local community, not least because of the limited capacity of groups to hold legal title to property, but there does seem to be a shift in the right direction. however, as has already been exposed with the examined community claims above, first impressions can be deceiving. 4.1 trojan horse in reality, the idea of the ‘big society’ and empowering communities has had very little positive impact on community property claims. there has been no favouring of community entitlements as a result of the policies implemented, especially not when the community claims clash with those of private landowners. in fact, many of the policies implemented perpetuate the favouring of private property claims, but have all the clothing of respecting community entitlement. communities were sold a false package under the coalition government; the understanding of communal property claims is just a façade, and the dominant narrative of property is just as prevalent as it ever was. the initiatives supposed to promote community property entitlements are little more than a trojan horse, perpetuating the preference for private property arrangements and individual wealth maximisation. the reason for the continuing dominant narrative is easily explained. the political and economic climate of 2010-2015 did not lend itself to recognising community entitlements. the priority of the government has been to combat the recession and oversee the economic recovery of the country, and policies appropriate to this aim were pursued. in the community property claims in the personhood perspective: part 2 112 framework of sustainable development, the economic aim was prioritised over the social and environmental aim. this immediately marginalises personal-property claims, especially those of a community, that carry little or no financial value. instrumental property has more immediate value for the economy, and is more conducive to an upward economic trend, than property that is claimed on the basis of some emotional or social connection with others in a community. there are clear examples of the coalition government actively pursuing the economic aim of sustainable development and seeking to realise the economic value of land, rather than the social value and community entitlement. one clear example can be taken from the communal property arrangements discussed earlier in this paper, the town or village green. whilst it may be true that tvg status is used as “a weapon of guerrilla warfare against development of open land”,51 the act of the local inhabitants applying to register and protect the land cannot be ignored. even if the application for tvg registration is what an objective observer may call ‘vexatious’, the fact remains that the local inhabitants as a community felt they had established a connection to the land that should be recognised and prioritised over the fungible claim of a developer or landowner. provided that the legal test of section 15 of the commons act 2006 is met, it does not really matter what the motivation for the application and the community claim of entitlement is. however, the coalition government has not taken this strict stance, and have instead opted to amend the commons act 2006 through the growth and infrastructure act 2013, as noted earlier in this paper. the effect of the amendments is to make it much harder to register land as a tvg, as section 15c of the commons act 2006 now contains a number of trigger events that will bar registration as a village green. all of these trigger events relate to planning applications over the relevant land, and thus prioritise the aim of development and maximising the economic value of the land, often at the expense of the social value attributed to the land by the local community. in essence, the fungible claim takes priority over the personal claim of the local inhabitants. the power of local communities to protect land that is important to them through the mechanism of tvg registration has been greatly diminished, and is now little more than a mechanism for favouring the fungible claim when the personal and fungible claims clash. 51 r (lewis) v redcar and cleveland borough council and another [2010] uksc 11 [48] (lord walker). the denning law journal 113 the lack of protection for land valued by communities is hardly surprising, especially given that development and house-building have been the primary tools used by the coalition government to fuel the economic recovery. the government were never seriously going to favour the social aim of land and promote community entitlement, especially if that entitlement could impinge on the economic value of land. it is often the case that by recognising the social value of land, and community entitlement, the land becomes economically sterile and protected from development, with the tvg regime being a prime example. the national planning policy framework explicitly adopts the stance that “significant weight should be placed on the need to support economic growth through the planning system”,52 highlighting the preference for, and greater weight placed on, the instrumental value of land. the political climate also goes some way to explaining why the assets of community value scheme is diluted to the point of being inadequate to protect community entitlement to the local resources that they value. it is not on the political agenda of the conservative party to inhibit the freedom of the property owning classes when they come to dispose of their property. landowners can voluntarily enter into options to purchase and rights of pre-emption, but they will not be unilaterally imposed on a landowner in the way that would be necessary for the scheme to really recognise the community entitlement to resources that they use and value (note the stark contrast here with the scottish community right to buy scheme). the acv listing scheme only pays lip service to the notion of community entitlement to property, and in reality still perpetuates the private property claim of the landowner. the effect of the protected period afforded to the landowner, coupled with the possibility that the community bid could be outweighed by a private and fungible bid, or indeed that a private bid may even be preferred, rids the scheme of any real potential to protect community rights. on the whole, it seems that when considering the allocation of resources and the structure of property rights it is not only necessary to consider the dominant property narrative, but also the wider political context in which that narrative takes place. when this is done, only one conclusion can be reached: the dominant narrative of property has not changed. the interest of private wealth is still favoured, and property rights have not been arranged to prevent the fungible property of 52 department for communities and local government, national planning policy framework march 2012, para 18. community property claims in the personhood perspective: part 2 114 individuals overwhelming the opportunity of communities to constitute themselves in property. sadly, it seems unlikely that the status quo will change anytime soon. at the time of editing this instalment of the article series it is less than a week since the united kingdom held a referendum to determine its membership of the european union. as the readership of this journal will know, a slim 52% majority of the electorate voted to leave the european union, with a voter turnout of 72%. there are grave predictions of a negative economic shock and continued uncertainty. already some of these predictions ring true, the pound sterling has fallen and risen sharply, as have the markets, and the country is in political turmoil. against this volatile backdrop it seems most unlikely that any government that eventually finds itself in control will pursue anything other than achieving the most financially viable and economically supportive use of land, no matter what that governments underlying ideology may be. such a policy direction will likely result in the continued favouring of private property, and community claims will continue to fall by the wayside. 5 conclusion natural resources, such as land, are predominantly subject to private property claims. whilst this is in line with the classical blackstonian view of property, it fails to recognise the nature of the multitude of competing claims that exist over land. some of these claims do not correspond with the traditional view of ownership, and focus on use by sharing rather than use by exclusion, and the right of a number of defined people to use the resource. english law does not generally recognise communal ownership, at least where there are more than four owners,53 despite these communal claims existing in abundance. until a legal mechanism is developed that can accommodate these communal property entitlements in our predominantly private property system, such claims will never attain more than a de facto status. the first step towards recognising communal property claims and accommodating them in a classical view of property is to justify the communal claim. this two-part article has sought to achieve this justification by using the personality theory of property, a theory that is usually applied to justify private property claims. the theory makes a normative claim; that personal-property claims should be prioritised over 53 the amount of legal title holders over land is limited to four, as per the law of property act 1925, s34(2). the denning law journal 115 fungible claims, and that in the event of a clash between the two, there is a prima facie case that a fungible claim should yield to personal claims, save for exceptional circumstances. it has been argued that if a community can demonstrate a degree of cohesiveness, homogeneity of interest and mutual self-interest, idiosyncratic regulation and the practice of excluding non-members, it is possible that it can establish a group personhood and establish a personal claim to property. this in turn should take precedence over the fungible claims of landowners, and the community entitlement to land should be protected. the consequence will be that the use rights of the community are protected against inconsistent uses by the landowner, the community will have some rights of management and control over the land, and in some cases may even result in the transfer of title to the resource (provided there is an appropriate legal mechanism that allows communities to hold the legal title to property, which at present is difficult to achieve). in practice, the personhood perspective rarely holds true for community property claims, and even in the limited instances where it does, the community entitlement is so heavily qualified that it does little to protect the personal-property claim of the community. the reality is that personal property claims established by communities often yield to the fungible claims of private landowners, and the few mechanisms that are present in english law to protect personal claims made by communities actually perpetuate this state of affairs. the scheme of listing assets of community value provides virtually no protection at all for the community entitlement, and the town or village green regime has become so diluted through economic policy that registering land as a tvg is now almost impossible where the land has any commercial value that could be realised. the reason why the personhood perspective fails to justify community claims to land is not surprising. the classical view of property has become the dominant property narrative, and this narrative focuses on the self-interested individual who seeks to maximise their own wealth and exclude others from scarce resources. this narrative does not account for those who use land whilst sharing it with others, or those individuals who form a group of users that aim to enhance the collective well-being. communal property has been marginalised, and communal property arrangements are seldom understood. as long as the property signals of a community are not understood by the audience in the context that they are made, personal-property claims established by communities will never be given the same status as those established by private individuals. furthermore, until there is a better understanding of communal property arrangements by both the policymakers who plot the interests on the community property claims in the personhood perspective: part 2 116 personal/fungible dichotomous continuum, and the audience who receive the property signals generated by the claim, the common-property arrangements that do exist will continue to be ineffective. for example, the scheme of commons registration in england could be much more effective in protecting the rights of the commoners. yet, until there is a better understanding about the differences between limited access and open access commons, and the tension that occurs between the two, the commons registration scheme will never reach its full potential. some attempt has been made to address the imbalance between private and communal property entitlements, such as the assets of community value listing scheme and the big society project. however, these attempts have achieved very little, and have been hindered by the overarching aim of the collation and subsequent governments to revive the economy. only policies that furthered the economic aim have been seriously pursued, some of which detrimentally affect community claims over land. the standout example of this is the growth and infrastructure act 2013, enacted with the aim of promoting development and realising the economic value of land, even if that land could be subject to a personal-property claim of a community (such as tvg status). the instrumental value of resources and the fungible property claim has taken priority, and until the political climate changes, it is difficult to see how the dominant property narrative will either. therefore, until communal property claims are placed on a level footing with private property claims it seems unlikely that communal property entitlements will be justifiable, properly recognised or accommodated in english law. equality between the two claims will entail the changing of the dominant property narrative, and until the political climate is such that will enable this to happen, it seems unlikely to be achieved. the blackstonian classical view of property has held fast for hundreds of years, and unless there is some radical change in view, it seems that communal property arrangements will remain only de facto arrangements, searching for some validity and recognition in a world of private property claims. 4 denning law journal 2016 vol 28 special issue pp 4-6 university of buckingham centre for extractive energy studies (ubcees) the university of buckingham centre for extractive energy studies (ubcees) offers a uniquely holistic approach to the study of extractive energy. this ranges from issues of good governance and accountability, combating corruption and asset recovery, on to the legal, fiscal and competition issues relating to the actual process of the extraction and carriage of energy resources and its environmental and social impact. it also explores contemporary issues relating to the exploitation and extraction of offshore energy from the sea, fracking, community and labour rights in the global extractive energy sector, including indigenous community participation in the decision-making process of the ownership and the sustainable management of energy resources. the centre is led by professor john hatchard and dr. hephzibah egede (co-directors) in collaboration with mr. jae sundaram who leads the centre’s maritime unit. the centre was launched on october 16 2013 and is guided by an advisory board which consists of leading academics and practitioners in the extractive energy sector. the board provides expert guidance in the development and implementation of the programmes and activities of the centre. advisory board membership current members of the ubcees advisory board are: i. mr. marc hammerson, chair, ubcees advisory board, partner, akin gump strauss hauer & feld llp. ii. prof. rg lee, head, birmingham law school, university of birmingham. iii. prof. william nuttall, professor of energy, open university; fellow, hughes hall, university of cambridge. iv. prof. peter slinn, notre dame university, joint general editor, law reports of the commonwealth. v. mr. david salter, senior associate fellow, school of law, university of warwick. vi. mr. james maton, partner, cooley llp. ucbees 5 vii. mr. abimbola ogunbanjo, partner, chris ogunbanjo & co, first vice president, nigerian stock exchange. ubcees conferences since its inception in 2013, the centre has hosted a series of energy conferences which cover a wide range of topical issues concerning the global extractive energy sector. i. “current legal and policy issues in the global energy sector” (october 2013). ii. “governance and social issues in the extractive energy sector” (may 2014). iii. “current legal and policy issues in the african energy market” (october 2014) iv. “marine life, oil spills, shipping and piracy: contemporary maritime challenges in offshore energy exploitation” (october 2015) v. “oil and gas decommissioning” (may 2016). this conference was facilitated and supported by akin gump strauss hauer & feld llp and globe law publishers. forthcoming conference the centre in collaboration with the open university will host a conference on “nuclear energy law, policy and regulation” in the first quarter of 2017. ubcees energy club the centre has also established a student energy club to encourage the discussion of and publication about contemporary energy issues. it provides the student community (undergraduate and postgraduate) with learning and networking opportunities preparatory to prospective careers in the energy sector. the president of the student energy club, ms. grace abakweatsegwasi, a current doctoral student, was also given an opportunity to share highlights of her current doctoral thesis on offshore health, safety and environmental regulation in nigeria at the recently concluded ubcees conference on contemporary maritime challenges in offshore energy exploitation. ucbees 6 ubcees masterclasses one of the centre’s objectives is to further enhance and develop the teaching and research of extractive energy specialisms such as oil and gas law at the buckingham law school. in furtherance of this objective, the ubcees held its first oil and gas masterclass for those students taking the oil and gas law course at the llm level. the masterclass, which held on march 2nd 2016, was hosted at akin gump strauss hauer & feld llp (a leading law firm consistently recognized for its practice in energy law). the masterclass was facilitated by three energy lawyers at akin gump and covered key areas in oil and gas such as host state contracts, licensing and energy disputes. the centre plans to hold further practitioner led master classes to enhance student learning at the buckingham law school. ubcees contact details prof john hatchard: john.hatchard@buckingham.ac.uk dr. hephzibah egede: hephzibah.egede@buckingham.ac.uk some remarks on the persistent objector rule in customary international law olufemi elias* since the publication of the first edition of brownlie's principles of public international law in 1966, the term "persistent objector" has become a term of art in international law. 1 subsequent discussion2 of the subject (in which there has been considerable interest particularly in the last decade) reveals a polarity of opinion; the majority of writers (hereinafter "optimists") confirm the existence and vitality of the rule, while some writers (hereinafter "sceptics") would not. the sceptical views range from the general (for example, that there is little or no role for the persistent objector rule to play whether in theory or in practice)3 to more qualified pessimism (for example, that there is a role for the rule in theory which has not been played in practice).4 the purpose of this article is not to deal comprehensively with all aspects of the persistent objector rule.s it is, rather, to suggest that even if this scepticism is ultimately justified, many of the arguments upon which it is based do not provide compelling reasons for the rejection of the principle in contemporary international law-making. this will be done by examining three issues: the actual formulation of the persistent objector rule itself, * lecturer in law, university of buckingham. the author wishes to thank professor m. h. mendelson and dr a. v. lowe for their patient discussion of an earlier draft of this paper. i. brownlie, pn'nciples of public international law 1st ed. (1966), p. 8; 2nd ed. (1973), p. 10; 3rd ed. (1979), pp. 10-11; 4th ed. (1990), p. 10. 2. the authorities sometimes deal with the subject without direct reference to the "persistent objector"; the following list is not, therefore, exhaustive: kelsentucker, general pn'nciples of international law 2nd ed. (1966), pp. 446-48; d'amato, the concept of custom in international law (1971), pp. 187-199, "on consensus", 8 canadian y.i.l. (1970), pp. 104, 108, andlnternationallaw: process and prospect (1987), generally chs. 1,5 and 6; thirlway, international customary law and codification (1972), p. 110; akehurst, "custom as a source of international law", 47 (1974-5) b. y.i.l., pp. 23-27; bos, a methodology of international law (1983), pp. 247-255; charney, "the persistent objector rule and the development of customary international law", 56 (1985) b. y.i.l., pp. 1-24; stein, "the approach of the different drummer: the principle of the persistent objector in international law", 26 (1985) harvard 1.l.jo., pp. 457-82; colson, "how persistent must the persistent objector be?", 61 (1986) washington l.r., pp. 957-970; koskenniemi, from apology to utopia (1989), pp. 393-95. 3. charney, supra n. 2. 4. stein, supra n. 2. 5. the authorities cited in n. 2 supra, especially stein and charney, provide more general and detailed treatment of the issues involved. 37 the denning law journal the state practice relied upon by the sceptics, and the theoretical basis of the sceptical position. trite (though perhaps somewhat artificial) as it may seem, it is important at the outset to restate the distinction between the "persistent" and the "subsequent" objector.6 we are concerned here only with the former, that is, the state that objects to a rule of customary international law at the time of the formation of the rule, as opposed to a state that objects later on. none of the authoritative texts would permit a state to opt out of an existing rule of customary international law, and not many would subscribe to the view that new states can choose to exempt themselves from the application' of an existing rule.7 and practically speaking, a state that objects after a rule has come into existence is necessarily attempting to change the rule, and for it to show that it is not bound by that rule may prove to be a difficult task; as bos puts it, " ... the objector-state may have to accept the consequences of what might be considered to be a change of heart ... ".8 there may well be cases in which the distinction between persistent objection and subsequent objection is difficult to draw,9 but in principle the distinction is not problematic. the definition of the persistent objector rule a striking feature of discussions about the existence and vitality of the persistent objector rule is the lack of a common statement of the rule itself. brownlie is concerned with "the rule that a state may contract out of a custom in the process of formation."lo similarly, akehurst states that "the question therefore is whether a state can prevent a rule of customary law becoming binding on it in the first place."l! according to these jurists, the question is whether it is permissible in international law for a state to avoid the opposability of a particular rule to that state, and the answer is in the affirmative, subject to the rebuttal of a probable presumption of acceptance. 6. brownlie, supra n. i, 4th ed., pp. 1o-1l. 7. the position is encapsulated in the draft of the restatement of the foreign relations law of the united states (revised) in comment (d) on section 102: "dissenting views and new scares ... a dissenting state which indicates its dissent from a practice while the law is still in the process of development is not bound by that rule of law even after it matures ... a state that enters the international system after a practice has ripened into a rule of international law is bound by it." 8. bos, supra n. 2. 9. e.g., while the literature shows that many supporters of the rule are quick to cite the anglonorwegian fisheries case (1951) i.e.]. reports 116, the discussion by brownlie (supra n. 5) shows that the international court treated the maner as one of subsequent objection on norway's part plus acquiescence on the part of other states. 10. supra n. 6. 11. supra n. 2, p. 24. 38 persistent objector rule in customary international law one may compare these formulations with those of another kind. for instance, bos asks the question whether a state "can" be bound by a rule in spite of the fact that it fails to have the relevant opinio juris or that it displays a different opinio juris in relation to that rule. 12 kelsen states that "it is possible to assume that a state is bound by international law only if it recognises this law as binding upon it ... but there is hardly a writer ready to accept all the consequences of such an assumption."13 according to this category of formulation, the question is whether a state can be bound in respect of a rule to which it has always objected. interestingly, the answer is also in the affirmative. kelsen does not examine the scope of his answer, while bos does, but they both give the same answers. we may now compare and contrast the two categories of formulation. the first category seeks to find out whether a state can avoid being bound by a rule to which it has persistently objected, and the answer is affirmative. the second category seeks to find out whether a state can be bound by a rule in spite of its persistent objection, and again the answer is affirmative. a semantic problem becomes apparent. the first category says a state can avoid the obligation while the second says it can be bound. the problem is that these two categories are hardly mutually exclusive. there is a gap left uncovered by these formulations. dealing with one category exclusively does not tell the whole story. at this purely semantic level, it is at least perfectly possible that there is no necessary disagreement as to the existence of the persistent objector rule at all. perhaps it is not a coincidence that the first category is that of optimists (brownlie and akehurst), while the second is that of sceptics (bos and kelsen). it appears (to borrow stein's metaphor) that they are each dancing to the rhythm of a drummer which cannot be heard by the other. if the disagreement is to be substantiated, the truth conditions of the one category must be compared with those of the other only then will the real bone of contention be revealed, and then dealt with. the problem can be illustrated by a scrutiny ofbos' thesis.14 he argues that the psychological element required for the formation of a rule of general customary international law is opinio and not voluntas, and that since the latter, being the will of the actor, cannot be generalised to the point where it becomes the referent for determining what counts as law, then "there is no room for voluntarism." is this is, however, at least controversial; so, unlike unger,16 bos qualifies this by looking 12. supra, n. 8. 13. supra, n. 2. charney's interpretation that kelsen argues that "international law is binding even on the dissenting state" is not supported by this text (see charney, supra n. 2, at p. 3, n. 9). 14. supra, n. 2. 15. ibid., p. 221. 16. r. fidelio unger, volkergewohnheir srrechr-objekrives rechr odes geflecr bilarerales beziehungen? (1978), pp. 10,53-55,68-70,74-76, 149. 39 the denning law journal at "values". if the "weight" of the value sought to be protected by a rule is "overpowering", the persistent objector "should not be excluded from the applicability of the rule which, to all intents and purposes, may be considered to be ius cogens." 17 this view shifts from description to prescription and back again, without any warning. in any case, other difficulties are raised. there is still much to be discovered about ius cogens.18 how is a norm of ius cogens created? what is meant by the "international community as a whole" in article 53 of the vienna convention on the law of treaties? it appears that the category of ius cogens is still largely an empty box, subject to a few possible exceptions. and while we seek to establish whether, and if so when, a state can benefit from persistent objector status in relation to rules of custom, with considerable difficulty, this thesis takes us into the even more shaky area of ius cogens. it holds some water only ifit can be shown that rules of ius cogens come into force through the same process that creates customary international law, but there are not many bigger "ifs" than this where international law-making is concerned.19 the answer to the problem, in wittgenstein's words, is not to introduce more flies into an already congested bottle. more important for our definitional problem is the question whether, even if the persistent objector is bound by rules of ius cogens, it is bound by customary rules of the character of ius dispositivum? the answer bos gives is that " ... the judge, arbitrators, etc. actually may have a choice," depending on the weight of the values sought to be protected. a fortion' there is room for the persistent objector rule where the umpire decides that the values (a question-begging notion in itself) are not so important. bos does not tell us anything about cases like these. rather than proceeding to provide authority for the proposition that there can be no persistent objector rule where important issues are concerned, bos examines the evidence in a different way.20 for example, in relation to the 1982 united nations law of the sea convention, he asks, in the light of the united states' obstruction, whether or not the consensus reached over the years "is not automatically destined to mature into general customary international law on a number of important points." this raises a definitional problem of a different kind. clearly the persistent objector rule does not operate to prevent a rule from coming into existence for those other states. in fact, that it comes into being is a condition precedent for the persistent objector rule to apply. it is difficult to see why the question is asked at all. 17. bos, supra n. 2, p. 250. 18. see, e.g., akehurst, 47 (l974-5),b. y./.l., p. 273; cassese and weiler (eds.), change andslabiliry in /mernalionailaw-making (1985), pp. 92-101. the literature on the subject is extensive; see n. 6, supra, at p. 512, n. 25. 19. charney, supra n. 2, appears to treat the creation of rules of ius cogens as being the same as that of custom. but this is problematic see the authorities cited in n. 18 for a discussion of the difficulties. 20. supra n. 2, pp. 250-55. 40 persistent objector rule in customary international law as to whether such law "should be" (as distinct from "is") considered binding on the united states even if it persistently objected to it in some of its aspects, our definitional problem re-emerges. the argument put forward is that the anglonorwegian fishers case21 does not say that the persistent objector can never be bound, and that in any case, the alleged lo-mile rule, had it existed, would have been a rule of ius dispositivum. as far as the north sea continental shelfcases22 are concerned, bos argues that the court did not treat acceptance of a rule as a conditio sine qua non for the coming into being of a rule of general international law .23to the first argument (that the authorities do not deal with ius cogens) one can reply that the question relates not to ius cogens primarily but to ius dispositivum. to the second argument, one may reply that, while the court did not require unanimous acceptance, it did not say that acceptance was not important. so bos has argued (but it is respectfully submitted, not proved) that a persistent objector will be bound if the rule in question seeks to protect an important value. but what those who support the persistent objector rule argue is precisely the point left untouched by bos, namely the case where the norm is not ius cogens. is there really any necessary disagreement here?24 if we consider the claims of some of the optimists, who ask whether a state "may" or "can" contract out of a customary rule,25 we will see the same kind of definitional difficulty. brownlie seems to treat it as a simple question of proof "evidence of objection must be clear", clear enough to rebut a probable presumption of acceptance. 26there is still, however, the question of what happens even after these conditions are satisfied. in other words, does the objector-state then become exempt from the obligation imposed by the rule once the presumption of acceptance is rebutted? might it not be the case that there are circumstances in which clear non-acceptance is of itself insufficient to exempt the non-accepting state from the application of the rule in question? this is the kind of point which bos seeks to make perhaps there are some values, waiting to be discovered (at worst) or articulated (at best) which might have so much "weight" that individual dissent is insufficient to prevent the operation of the rule erga omnes. one can see the difficulty in another way both optimists and sceptics can and do rely on the same authorities. the relevant rule had not come into being in the a nglo-n orwegian fisheries case, and so it is no authority for the persistent objector rule, a sceptic would say, but the court said that even if it had, norway had persistently objected and was therefore not bound, the optimist would argue. we 21. (1951) i.e.]. reports, pp. 116,131. 22. (1969) i.e.]. reports, p. 3. 23. clearly this is irrelevant as far as the persistent objector is concerned. the question is not about a rule of general international law coming into being; it is whether, after it has come into being, it binds the persistent objector. 24. see, e.g., thirlway, supra, n. 2., and akehurst, supra, n. 18. 25. supra, n.6 and n.li. 26. ibid .. 41 the denning law journal can reverse the roles for the north sea continental shell cases. the "equidistancespecial circumstances" rule had not come into existence, say the optimists, so anything the court said was obiter; but the sceptics would argue, in wei!'s words that " ... however, the implication was that the equidistance rule could otherwise have been imposed upon the federal republic even though it had expressly opposed that rule, and even though it was that very opposition which had lain behind its refusal to ratify the convention."27 the point being made is thus not one that relates to the merits of the different sides of the discussion; rather it is simply that the questions are formulated in a manner that leaves important questions unanswered.28 to put it differently, it is one thing to say that it is permissible for x to do y; it is quite another to say that it is always permissible for her so to do. a formulation that might cover all possibilities and therefore seek to provide a circumspect answer would look something like this: "a state that has persistently objected to a rule can never be bound by that rule", for the optimists, or "a state is always bound by a rule of general international law irrespective of its persistent objection", for the sceptics. it is to formulations similar to these that we must now turn, because they attempt to paint the parts of the picture which are not dealt with by discussions tainted by the definitional "sting". 29 the rule in operation: the "missing referent" revisited charney and stein have provided what may now be regarded as a standard repertoire of test-cases on the operation of the persistent objector rule in practice. it is certainly true that academic support for the rule consists largely of restatements of the rule "with little explanation and few supporting authorities", 30 and after an examination of possible authorities charney concludes that "support 27. weil, "towards relative normativity in international law", 77 a.].il (1983), pp. 413,437 para. 4. 28. it appears that this may sometimes be deliberate. brownlie's shon passage clearly invites funher juristic elucidation. one only needs to compare the text(s) on the persistent objector (cited in n. i, supra), which has remained the same, with the footnotes to these texts, which have changed considerably. 29. charney does not expressly formulate the principle one way or another. he refers expressly to the formulations by akehurst, brownlie and in the restatement as examples of authoritative formulations of the rule; he thereby avoids the battle lines already drawn. by taking the standpoint of the optimist when he is a sceptic, he deals with the principle in a generally circumspect way. his aim is to examine the "real contribution" of the persistent objector rule "to the development of customary international law." herein lies the strength of his thesis: see supra n. 3, p. 5. the formulation in the restatement, essentially adopted by stein ("a state that has persistently objected to a rule .. .is not bound by that rule: supra n. 2, p. 457; is also an improvement, but it does leave a margin untouched that between "not" and "never": see n. 6, supra. 30. charney, supra n. 2. 42 persistent objector rule in customary international law for the rule in state practice and judicial decision is limited."31 the law of the sea is the most fertile area, particularly where the old problem of the limits of territorial sea jurisdiction of coastal states is examined.32 the great maritime powers favoured an extensive high seas area and therefore a limited coastal state jurisdiction. in the case of japan, this caused problems in relation to other pacific states when the latter claimed twelve-mile exclusive fishery zones especially in the 1960s onwards. the matter was initially resolved by diplomatic efforts which resulted in agreements which were "intentionally ambiguous"33 on the question of the legality of such jurisdictional claims. eventually, however, japan accepted the new law of the sea, including both the fishery zones and the exclusive economic zones. but was japan ever bound by these rules without its consent? as charney admits,34 one cannot say, prior to japan's acceptance, that japan could only fish with the permission of the coastal states (in which case japan would be bound in spite of its dissent) because the agreements had another side; the coastal states had to get japan to relinquish its rights to pursue fishing in certain parts of the zones in question (in which case the states' views were only partially effective against japan). and after its acceptance, the question becomes superfluous, since japan had consented. the point is that while japan was a persistent objector, it was not bound; it only became bound when it ceased to object. but perhaps a more important point is that this is not an example of the persistent objector principle in issue at all. as with the united states35and the united kingdom,36had japan not consented to a rule which was still in the process of formation? one may even go so far as to ask whether the acquiescence of these states had not actually finally helped the twelve-mile rule to settle.37in any case, churchill and lowe say that "it seems unlikely that there is any state in the position of a persistent objector in this matter",38 and it is difficult to state categorically when the rule became settled. the point is the familiar one that law-fmding is a difficult task in the system of custom. one only needs to look at the methodology of international tribunals in some of the maritime delimitation cases 31. charney, supra n. 2, p. 5. see also, n. 21 and n. 22 supra. see further, charney's analysis of the fisheriesjurisdiction case (1974) i.c.j. reports, pp. 10-12,29-30,120, 148-9. as with the other cases he discusses, the judicial authorities, at best, fall foul of our definitional "sting"; they are inconclusive: see n. 30, supra, pp. 9-11. 32. ibid., pp. 11-14, and footnotes thereto. 33. ibid .. 34. ibid .. 35. see the statement of the president on the exclusive economic zone of 10 march 1983, in the weekly compilation of presidential documents, vol. 19, no. 10, p. 383 (14 march 1983). 36. see the territorial sea act 1987. 37. see the historical accounts of the development ofthe law in this area in brownlie, supra n. 6, pp. 187-189, and in churchill and lowe, the law of the sea 2nd ed. (1988), pp. 65-68. see also the judgment of the international court of justice in the fisheries jurisdiction case (1974) i.e.]. reports. the court avoided a ruling on the legality of iceland's claim to a 50-mile exclusive fishery zone. 38. ibid., p. 67. 43 the denning law journal they have decided39to confirm this point. in relation to the united states position on migratory tuna fish, the position is not very different from japan's in relation to the territorial sea prior to its acceptance. charney40 overlooks the imposition of economic embargoes by the united states in retaliation for the enforcement action taken by coastal states,41 and since then, the signature in april 1987 of a fisheries treaty by the united states and twelve pacific island states,42which would permit american vessels to fish for tuna in parts of the south pacific seas, covering ten million square miles. has the united states' interest then not triumphed? again, this hardly forces us to reject the persistent objector principle. either one says that the international law is not completely settled43(in which case we cannot speak of the persistent objector), or one says that it is settled and that the united states dissent, while not having universal application, has paid off in an important way. to put the same point differently, several authoritative texts see custom primarily as a system of bilateral obligations linking two or more states.44parry acknowledges" ... some difficulty about pointing out an unmistakable example of the emergence of a new customary law'of general validity. "45on this widely-held view, rules of custom are not monolithic hence the importance of individualistic notions such as regional/local customs and, of course, the persistent objector rule. this fundamental notion of opposability must be explained away, and it is submitted that the present example does not do this. as far as the deep sea bed is concerned, the law is, for the sceptic, at best unsettled, or at worst settled in favour of the reciprocating states. it has been suggested that any mining that occurs is likely to occur "under either the preparatory investment provisions of the convention or under the reciprocating states regime."46brownlie states that the "dissident states" might be said to have the status of persistent objectors.47 churchill and lowe express the conundrum nicely: "asked if the unilateral legislation is consistent with the various declarations on the deep sea bed, the [international] court [of justice] would probably have to say, no. but asked if those declarations bound in law, the reciprocating states not to enact and operate with legislation, the court 39. see, e.g., jennings, xxxviii a nnuaire suisse de droir inrernarionale (1981), pp. 59, 65-71. see also cassese and weiler, supra n. 18, especially pp. 66-91, and ch. 1. 40. supra, n. 2. 41. see churchill and lowe, supra n. 37, pp. 237-238. 42. ibid .. 43. as charney would: supra n. 2, p. 13. 44. see, e.g., brownlie, supra n. 6; wollke, cusrom in presenr inrernarional law, pp. 11-19; and oddly enough, kelsen, supra n. 2., pp. 451 er seq.. 45. parry, the sources and evidences of inrernarional law, pp. 61-62. 46. supra n. 37, p. 202. 47. supra n. 6, p. 256. 44 persistent objector rule in customary international law would probably have again to answer, no."48 again, persistent objection does seem to pay. with regard to compensation for expropriation, charney states that the persistent objector rule does not appear to have protected the western developed states, who still cling to the 'hull' formula of 1938, from the development of less generous standards and their application against nationals of these states.49if one surveys the literature on the matter, one sees questions ranging from whether the rule ever existed, to whether, even if it did, it still does. schacter,50 for example, questions "whether it has ever been the customary law." rosseau also points out that the "prompt, adequate and effective" formula has not won general acceptance in practice or in decisions of tribunals.51 if these jurists are right, the persistent objector rule is inapplicable; the western states become subsequent objectors who wish to change the law but have not accumulated the quantum of opiniones individuales juris required to change the existing law, whatever that is. mendelson,52 de visscher,53 lauterpacht,54 and robinson55 maintain that the 'hull' rule did exist, although they differ as to the effect that subsequent practice and resolutions may have had on the rule. if this view is right, then the question is whether the old opinio generalis juris has been undermined. if the answer is no (as mendelson and robinson would maintain), then the law is still in favour of those who support the rule and to apply the status of 'objector' to such states would be absurd. if the answer is yes (as lillich,56 de visscher and lauterpacht would argue) then we must ask what it is that has replaced the 'hull' formula. cassese57provides a clear description of the state of the law, pointing out that as any legal regulation of conflicts in expropriation law is at bottom governed by political and economic considerations, one can hardly speak of general customary international law on the matter. this relatively pessimistic view is certainly correct at the auto-interpretative level,58and since we do not have general but special customs, the persistent objector principle is inapplicable. but even at the purer arbitrable/judicial levels, schacter has stated that at least the cases reveal that the 48. supra n. 37, pp. 201-202. 49. supra n. 2, p. 14. 50. schacter, "compensation for expropriation", 78 a.y.il (1984), pp. 121, 122. 51. rosseau, vol. v, droit international public, pp. 248-50. 52. mendelson, "compensation for expropriation; the case law", 79 a.y.i.l. (1985), pp. 414-20. 53. de visscher, theory and reality in international law (1968), p. 203. 54. oppenheim, international law 8th ed. (1955). 55. robinson, "expropriation in the restatement", 78 a.y.i.l. (1984), p. 176. 56. lillich, "the valuation of nationalised property in international law: toward a consensus or more 'rich chaos'?", in the valuation of nationalised property in international law (ed. lillich) vol. 3 (1975), pp. 345-47. 57. cassese, international law in a divided world (1986), pp. 345-47. 58. to borrow the terms used by cheng, e.g., in "custom: the future of state practice in a divided world", in mcdonald and johnston, the structure and processes of international law (1983), pp. 522-526. 45 the denning law journal property owner is quite likely to get a fair market value and a satisfactory award even though the magic words of the "hull" formula are not invoked. tribunals, then, strike compromises.59 brownlie60and jimenez de arechaga,61stressing that "appropriate" compensation is now the norm, have argued that if the term "appropriate" is to have any objective meaning, then failure by the local courts of the host state to provide 'compensation' in an objective sense would be unlawful; reference to domestic law in article 2 (2)(c) of the charter of economic rights and duties ofstates62 is not a reference to domestic law willy-nilly. "appropriate" compensation, according to the eminent tribunal in the aminoil arbitration, is best carried out "by means of an enquiry into all the circumstances relevant to the particular concrete case, than through abstract theoretical discussion."63 it is therefore misleading to treat the matter as if the western states' view has been overridden by the view of everybody else, when the reality is that the latter class does not exist. each part of the world community has a view which does not override that of the others. and clearly, to say that each part is a persistent objector is unhelpful. the 'hull' formula is therefore not a good illustration of the failure of the persistent objector rule, for the simple reason that the rule is inapplicable to the instance. stein64regards the law on sovereign immunity as another example of the rule's lack of vitality. but it is chamey65who shows that it is not an informative example. pointing out that the eastern states have been effective in preventing the development of a universal rule of law, because of the "leverage" they have in the matter, he shows that, there being no general rule, the persistent objector principle is inapplicable. this again underscores the importance of the notion of opposability in customary international law.66 once it is accepted (and it is accepted) that the label 'persistent objector' can apply to one state as well as to a group of states, scepticism faces a serious problem.67 on the other hand, however, what must be the sceptic's trump card must be the apartheid example. south africa has not been considered to be free from the rule prohibiting institutionalised racial discrimination in spite of its disguised 59. schacter, "compensation cases: leading and misleading", 58 a.j.i.l. (1985), pp. 420, 421. 60. ibid., pp. 524-543, and vol. iv, 162 hague recuei[ (1978), pp. 255-71. 61. jimenez de arechaga, 11new york universityjo. of int. law and politics (1978), pp. 179-95; vol. i, 159 hague recuei[ (1978), pp. 297-310. 62. resolution 3281 (xxix), 14i.l.m. (1975), p. 251; see also brownlie,supran. 6,p. 541 for a list of commentaries in n. 9. 63. arbitration between kuwait and the american independent oil co, 21 i.l.m. (1982), p. 976. 64. stein, supra n. 2, pp. 460-461. 65. supra n. 2, at p. 23, n. 94. 66. see supra, no. 44-45 and accompanying text. 67. see koskenniemi, supra n. 2. 46 persistent objector rule in customary international law persistent objection.68in the light of the view of the international community "as a whole"69and of the international court,70this is a case where persistent objection is ineffective on a point of settled law. to conclude, the examination of some of the standard examples of the ineffectiveness of the persistent objector rule does not compel us to reject that rule or to be generally sceptical about it. in fact, some of the scepticism on these examples seems to come perilously close to a confusion of two separate issues; the existence of a rule oflaw on the one hand, and the enforcement or enforceability of the law on the other. 71if the principle is to be rejected we must find other reasons for rejecting it. at this point, the most that can be said for scepticism appears to be that stein's reservation of his position on the existence of the persistent objector is preferable. 72 the rule in theory: custom and consent if rules of customary international law are based on consent, the category of persistent objector is otiose since dissenting states will not be bound whether or not objection is persistent. if rules of custom are not based on consent, then a state will be bound by a rule whether or not it persistently objects. whatever the basis of obligation is in international law (for charney it is the "societal context"), it is what will determine whether or not a state will be bound. this is charney's formulation of the position.73 thus framed, the proposition strikes at the core of the arguments in support of the persistent objector principle. brownlie, like all supporters of the principle, certainly treats the consensual nature of custom as its ultimate foundation.74 are these authorities then mistaken? charney provides a survey of the literature from kelsen and brierly, through fitzmaurice and d' amato to alexidze, and concludes that consent is not the basis of obligation in international law, with all possible consequences for the persistent objector. however, a problem arises 68. counsel for south africa before the i.c.]. in the namibia case (see n. 70, infra) argued that south africa had never violated the principle of racial equality, but that it only promotes and effects separate development for different communities, so that south africa is not a persistent objector at all. but acceptance of a rule is only half the story; interpretation of any rule is inextricably linked to its acceptance. 69. see brownlie, supra n. 6, pp. 596-597. the general assembly each year passes several resolutions condemning apartheid with overwhelming majorities. 70. legal consequences for states of the continued presence of south africa in namibia (south-west afn'ca) (1971) i.c.]. reports 12,57. 71. this seems true in relation to charney's (and stein's) claims regarding the territorial sea issue, and also the latter's discussion of the sovereign immunity example. the latter also raises a separate point of classification can a state be a persistent objector when it does not call itself a persistent objector? koskenniemi has also underscored this problem. it is submitted that this should not be a separate problem; all that should matter is the evidence of dissent, on which, see colson, supra n. 2. 72. stein, supra n. 2, p. 459, n. 6. 73.0p. cit., at p. 18and see generally pp. 16-21. for a survey of the theories on the basis of obligation, see schacter, "towards a theory of international obligation" (1968) virginiajo. of int. law, p. 300. 74. supra, n. i,.p. 10. cf. the text in the 4th ed., supra n. 6. 47 the denning law journal because we need to establish the precise meaning of this near universal rejection of consent. the matter is framed in absolute terms; either consent is the basis of obligation or it is not. can the matter be phrased so categorically? it appears that not even kelsen, the arch anti-con sensualist, would do this. he states that one can start from the consensualist position, but that "there is hardly a writer ready to accept all the consequences of such an assumption. "75the truth is that rejection of consent cannot be equated with an absolute elimination of voluntarism; neither does it involve an absolute attribution of universal status to majority rule. charney attacks the rejection of "a system of majority voting", but this cannot be taken too far. much has been written on the present "crisis" in which international law-making finds itself.76the emergence of "soft law"77techniques in recent years is a reflection of these developments. today, the emphasis is on consensus. the lack of socio-political homogeneity in the international system necessitates the compromise that is "soft" law, even though it may mean that the rules will at best be binding in a weak sense. the point is that decisions adopted by a majority in the face of vigorous dissent will hardly produce rules oflaw that bind everybody.78 there is no better evidence of the fact that majority rule is not the norm than the recourse had to the international conference and consensus texts (in spite of the fact that there is a clear majority in, say, the united nations), in important and diverse fields like human rights, outer space and the environment. as stein puts it, "a vote, an explanation of position, a refusal to ratify these are the steps available today that were not available to the states of the classical era. "79 so there is now greater facility for the articulation of the voluntaristic traits in the system of custom than there used to be. 75. supra n. 2, p. 448. 76. see cassese and weiler, supra n. 26; chinkin, "the challenge of soft law: development and change in international law", 38 i.c.l.q. (1989), p. 850 see bibliography at n. i thereto. see also stein, supra n. 2. 77. this term has been used to cover two separate phenomena the content of the actual norm itself, on the one hand, and the instrument in which a norm is laid down on the other. in relation to the former, a 'soft' norm is one laid down in legally binding form, such as a treaty, but which is so vague that it amounts to little more than a statement of intent. the problem is that it is difficult to determine with precision what the substance of the legal commitment acrually is: see e.g., part iv of the gatt, or articles 204(1) or 217(2) of the 1982 u.n. law ofthe sea treaty. in relation to the laner (i.e., the instrument in which the norm is laid down), the concern is with instruments such as the helsinki final act and some u.n. general assembly resolutions, which contain provisions that are clear and familiar, or which are likely to 'harden' (hence the reservations entered into such provisions in the 1974 charrer of economic righrs and duries of srares, supra n. 62). the problem here is that these lack the status of full lex lara, as they have not been enacted in ways which satisfy the positivistic pedigree tests oflegal validity treaty srricro sensu and custom (in the sense of established practice). both meanings of the term 'soft law' described are the result ofpoliticavdiplomatic compromise, which, far from being ideal from the point of view of legal certainty, is a necessary evil. 78. witness the fate of part xi of the 1982 law of the sea convention: see supra no. 46-48, and accompanying texts. 79. stein, supra n. 2, p. 467. 48 persistent objector rule in customary international law koskenniemi has also argued80 that while charney may have discredited voluntarism, he has not replaced it with any explanation of why states are bound by the law. there appears to be much truth in this charge when one analyses charney's substitute, what he calls "societal context". simply, we have to be sure that all "contexts" must necessarily exclude voluntarism; otherwise we are simply restating the reality of consent. in other words, societal context is necessarily made up of the sum of the consent of any number of actors on the international scene weighed against the sum of the dissent of other actors. whenever we speak of "societal context" we are often speaking of consent under a different name. the truth is that when the sum of consent is greater than the sum of the dissent, there are a number of possibilities. the dissent might simply be overwhelmed, in which case persistent objection is ineffective in law.81 or the dissent may be weaker in a numerical (quantitative) sense, but not in the sense of a qualitative inferiority, (in terms of the influence and interests of the dissenting state(s)).82 this can lead to one oftwo things. the world community may be forced to come down to the level of the state(s) in the minority,83 or alternatively, there may be a compromise given the irreconcilability of such differences, with different states having different interests and compromise becoming the best way out of an auto-interpretative stalemate (even if it is not a good way out).84 viewed in this light, it is perfectly possible to strike a middle course between voluntarism and majoritarianism. it appears that all that is meant by rejection of consent is simply a rejection of crude solipsism. what role is then played by the rule? stein would argue that, because the law-making process is becoming quasi-institutionalised (in a sense), objection will become much more direct and frequent.85 but this does not necessarily answer the charge that the traditional role of the persistent objector (as criticised by charney) is one that is played after the relevant rule is settled. in other words, if international law-making becomes "instant" and "prospective",86 any rule, when it "emerges", will already reflect the "societal context", with the result that objection to such a rule becomes otiose. it would then appear that, as charney said, the real function of the rule is "to force an accommodation of interests in the international community with respect to the evolution of new rules of law."8? objection will then not be 'persistent', because it is confined to the formative stages of the customary rule in question. however, this view fails to account for some features of the law-making process. 80. supra n. 2, p. 393 (and footnote thereto). 81. the apartheid situation would fall into this category. 82. charney seems to concede this: supra n. 2, n. 94. 83. perhaps the examples of the deep sea bed and sovereign immunity could fall into this category. 84. this may explain the fate of the hull formula (see, supra, nn. 49-63, and accompanying text). 85. supra n. 2, pp. 463-475. 86. ibid .. 87. supra n. 2, at p. 23. 49 the denning law journal as mentioned above, the international system still displays voluntaristic traits. firstly, the threshold oflegal normativity is becoming increasingly blurred.88 this means (a) it is difficult to distinguish between lex lata and lex ferenda, and this in tum means that (b) it must be difficult to distinguish between persistent and subsequent objection, because the latter distinction (b) relies upon the former (a).89the problem posed by (a) must be explained away if we are to agree with charney's analysis of the role played by the persistent objector rule. secondly, as stated above, emphasis on general/settled law can be misleading as to the real nature of law in the international system. this feature, which has been described as "fragmentation",9° must also be explained away if we are to circumscribe the role of the persistent objector rule. in sum, if law in general (and international law in particular) is not simply a matter of monolithic "plain-fact" or "pedigree'',9! the restriction of the role played by the rule is not as compelling as it might seem. alternatively, even if one agrees that the rule is confined to the "pre-legal", the fact remains that the objection by states forges a compromise which is reflected in the rule when it "emerges". still, the function of voluntarism is served, albeit under a label which is not the traditional one of the persistent objector. so rather than reject voluntarism, the most a sceptic can say is that it exists for at least some purpose. what really needs to be addressed, then, is the precise role of consent. conclusion there are several important questions not dealt with in this paper. how real is the difference between persistent and subsequent objection?92what form must objection take before it can be called objection?93in stein's article, he points to a number of "vexed questions"94 which call for attention. all that this paper has 88. see weil, supra n. 27. 89. see, supra n. 9, and accompanying text. 90. by koskenniemi, supra n. 2. see, supra, n. 44 and accompanying text. 91. these terms are borrowed from the work of r. dworkin, in taking rights seriously (1977) and law's empire (1986). his theory is but one challenge to the monolithic "completeness" sought after by legal positivism in some of its manifestations. examples of other works that challenge positivism on this point, with special reference to international law, are mcdougal and reisman, international law essays (1981); falk, "the relevance of political context to the nature and functioning of international law", in the relevance of international law (1968), p. 33; gottlieb, "the nature of international law: towards a second concept of law", in vol. iv of the future of the international legal order (1974) (eds. black and falk), p. 331 and pp. 362-374; d'amato, supra n. 2; kennedy, international legal structures (1986); carty, the decay of international law (1986); and koskenniemi, supra n. 2. for a more direct use of dworkin's methodology, see f. teson, "international obligation and the theory of hypothetical consent", yale ].i.l. (1990), p. 84. 92. see n. 9, supra. 93. see colson, supra n. 2. 94. at p. 475. to this may be added the precise nature of the relationship between persistent objection and the requirement of generality of practice, a relationship described as "uneasy" by koskenniemi, supra n. 2, at p. 394. 50 persistent objector rule in customary international law sought to do is indicate some of the difficulties that exist in relation to the persistent objector rule as it has so far been discussed. the subject calls for an "internal" observational standpoint in order to analyse properly the reasons why the persistent objector is prevented from reaping any benefits from objection in some cases but not in others "external" generalisations are unlikely to be informative. good reasons must be given for preventing dissenters from obtaining benefits from their dissent, or to put it differently, for the characterisation of such states' actions as illegal. some of the works examined here do not provide such reasons. 51 viscount stair d. m. walker* in the gilbert scott building of this university of glasgow, at the foot of the grand staircase leading up to the university court room and the senate room, and outside what used to be the law classroom, there is a carved stone tablet on the wall commemorating viscount stair. on the fifth centenary gates one of the names recalling the third century of the university's history is stair. when in 1985 the school of law was about to move into the accommodation newly converted for it, the school unanimously resolved that the premises be named the stair building. why do we, and why should glasgow university, and particularly its lawyers and the lawyers of scotland, remember and honour stair? before trying directly to answer that question, i must try to sketch the background 1 and stair's career.2 james dalrymple was born in ayrshire in 1619, son of the laird of stair and his wife, who were strong presbyterians. he came up to the university of glasgow from mauchline grammar school in 1633 and went through the arts curriculum. he graduated master of arts in 1637and was listed first in his year.3 at this time charles i was attempting to anglicise the presbyterian church of scotland and to impose a service book on it. this gave rise to protests, to the famous riot in st. giles cathedral in edinburgh, at which one jenny geddes is said to have hurled her stool at the officiating clergyman, and to the signing by large numbers of people of the national covenant in 1638.young stair probably signed the covenant. the general assembly of the kirk which met in glasgow in 1638 condemned charles's ecclesiastical policy, the book of canons, the service book and other elements of the king's policy. a covenanting army was raised and marched to the border but charles, by the pacification of berwick, agreed to the scottish demands. in this force young stair commanded a company in the earl of glencaim's regiment of foot. the scottish army then occupied newcastle and * professor emeritus, university of glasgow. 1. see pryde, scozland from 1603 ro the present day, ch. i; donaldson, scolland: james v -james vii, part iii; davies, the early stuarts, 1603-1660; g. n. qark, the later stuarts, 1660-1714. 2. see mackay, memoir of sir james dalrymple, first viscount stair; walker, the scoltishjun"scs, ch. 8, and references therein. 3. munimenta almae universitatis glasguensis, iii, 22. 143 the denning law journal insisted on remaining on english soil until a settlement was reached. a treaty was agreed at ripon in august 1641. but in march 1641, young stair, aged 22, had been invited by some of his former teachers to become a candidate for a vacant post of regent or teacher in the university of glasgow and, still in uniform, competed for the post and was appointed. under the system of regenting, a regent took an intake of students through the whole curriculum and did not confine himself to teaching a specific subject. but stair's teaching seems to have been mainly philosophy, particularly logic, and there survives a volume of dissertations on philosophical subjects which students had, as a requirement for graduation, to prepare and defend publicly before the regents as their examiners, and which is dedicated to stair.4 while stair was engaged in regenting, he also studied latin and greek literature, classical history and antiquities, and the civil law of rome. he also married. in 1647he resigned, went to edinburgh and in 1648was called to the scottish bar. 5 it is noteworthy that stair had no formal legal education. though it had been taught earlier in each of them, law was not then taught in any of the four scottish universities, and only if he had gone to france or the netherlands could stair have had the benefit of academic legal education. he learned entirely, accordingly, by private study. there were available various editions of the texts of the civil law of rome and various books thereon, all published on the continent, but we do not know which he may have read. the materials on scots law were very scanty. there were in existence the collection of scottish legislation from 1424to 1566known as the black acts, skene's lawes and actes of 1597, covering the same period and continued to 1597, skene's edition of regiam maiestatem and the auld lawes of 1609 and little more. there were no printed reports of decisions. there were several collections of notes of decisions and legal points circulating in manuscript, notably those now known as balfour's practicks,6 haddington's practicks,7 and hope'spracticks.8 there were no textbooks on scots law at all. sir thomas craig's jus feudale was a text on the feudal law of western europe with reference to its application in scotland, but was not a comprehensive work; it dealt only with the land law; though written about 1600 it was not printed until 1655, though probably known in manuscript earlier. there were accordingly in existence some collections of materials on scots law but no book, and it is hard to say that there was a system of law. certainly it was unsystematised and there were gaps and areas of uncertainty. the need for a comprehensive text on scots law, systematically arranged, may have been apparent to stair even in 1648. during the years stair had been teaching in glasgow, the english civil war had been fought and by 1648the forces of the parliament had triumphed and charles i 4. theses logicae, metaphysicae, physicae, mathematicae et ethicae, g.v. library, sp. coil. 62.3. 5. sro, cs 115 f. 182v. 6. printed 1754 and reprinted by the stair society in 1962-63. 7. still unpublished. 8. edited by lord president clyde and published by the stair society in 1937-38. 144 viscount stair was a prisoner. in january 1649, charles i was tried by his english subjects and executed. in february, charles ii was proclaimed king of scots and the scottish estates appointed commissioners to proceed to the hague to negotiate with him; young stair went as secretary to the commissioners. immediately before he left he was named one of a large commission appointed by parliament to undertake the revision of the law with powers to consider the customs and practices both of the civil and criminal courts "in order that the commissioners might frame a formal model or frame of a book of just and equitable laws to be established and authorised by his majestie and the estates of parliament, and might abrogate any bygone acts of parliament which had fallen into desuetude or become superfluous or unprofitable."9 the analogy with justinian's appointment of commissioners to frame the digest and the institutions is clear. again this may have suggested to young stair the need for a book, if not of just and equitable laws, at least of the accepted customs and rules. but there is no record of this commission ever having met, still less reported; life was too hectic in and after 1649 for law reform. but the appointment to the delegation to negotiate with charles ii and to the commission to reform the laws both suggest that young stair was regarded as an able young man, a rising man, and one well thought of. in 1650 another commission, again with stair as secretary, was sent to negotiate with charles ii at breda. in connection with both commissions, young stair is likely to have met charles ii, who was only a little younger than him. whether on these trips to the netherlands stair sought out any of the great dutch jurists then teaching, such as paul voet, vinnius, to or antonius matthaeus, or got hold of any of their books, is unknown but is possible. in may 1650, stair was appointed by parliament with others to meet charles ii when he landed at garmouth at the mouth of the spey and signed the solemn league and covenant, but he was not with the scottish army defeated by cromwell at dunbar in september 1650 or at worcester in 1651. thereafter charles ii escaped back to the netherlands and scotland was an occupied country; the scottish parliament was abolished and from 1652 the court of session was replaced by a body of commissioners for the administration of justice, half of whom were english. stair seems to have established amicable relations with the occupying power and when in 1657 one ofthe commissioners died, general monck, commander in chief in scotland, nominated stair as a good lawyer and one fit to be a judge. j t he took his seat on the bench on 1st july, 1657, aged 38 and of nine years' standing at the bar. he had come pretty far very quickly. 9.1649, aps vi (2), c.271. there had been earlier commissions in 1425 (aps ii, 10, c.l0), 1469 (aps, 11,97, c.20), 1473 (aps ii, 105, c.14), 1566(aps 1,29 and 111,40) (which resulted in the publication of the black acts), 1574 (aps, i, 30 and 111,89) (which resulted in the compilation ofbalfour'spracricks), 1578 (aps, iii, 105, d8), 1592 (aps iii, 564, c.45) and 1628 (aps, i, 34-35) renewed in 1633 (aps, v, 46). there were also later ones, in 1681 (aps, viii, 356, c.74) and 1695 (aps ix, 455, c.57). 10. vinnius' in iv libros insrirurionum commenrarius, a book long famous in law schools and repeatedly re-issued, was publis~ed in 1642. 11. aps vi (2) 764, 907, 908. 145 the denning lawjournal in 1660 charles ii was restored and stair went to london to pay his respects to the king, and doubtless reminded him that they had met before. he was knighted and when the court of session was restored in 1661 he was again made a judge.12 in 1664 he was advanced to be a baronet. in 1670 he was a member of a commission which negotiated with english commissioners on a possible closer union between the two countries, but negotiations broke down, we are told, on the insistence of the scots that scots law be preserved and not abolished in the interest of unity. 13 in 1669-72 he was also a member of a large commission charged to consider the regulation of the three supreme courts in scotland, session, justiciary and exchequer, and this commission in 1672 recommended various changes, many of which were adopted and regulated these courts for a very long time. in 1671 stair was promoted lord president of the court of session. he was not lord justice general (head of the criminal court), which office was then and until 1830 held by a lay lord, and all his career he had little contact with the criminal law, for which indeed he had a distaste. he also sat in parliament for wigtownshire and is credited with having sponsored various reforms, notably the subscription of deeds act 1681.14 he probably also had a hand in other important legislation of that year, such as the judicial sale act 1681, and the bills of exchange act 1681. but later in 1681parliament passed the test act1s which imposed on all persons in offices and places of public trust the duty to swear publicly and to subscribe an oath, ostensibly designed to secure the protection of the protestant religion but truly designed to secure the submission of all in important positions to the royal supremacy, and to obtain a repudiation of the national covenant and the solemn league and covenant. as a young man stair had probably signed the national covenant and he had been a party to getting charles ii to subscribe the solemn league and covenant. he declined to subscribe the test, was replaced as lord president, and retired to his home in galloway. in 1682 he thought it prudent to leave scotland and he established himself at leiden in the netherlands where he and several of his sons matriculated at the university; he became a mature student, aged 62. in his absence attempts were made to have him extradited and prosecuted for treason, and in 1685 he was actually indicted for high treason. 16 while in the netherlands, he associated with the refugees who grouped round william of orange, the hope of those who wished a protestant succession to the crowns, who was nephew of both charles ii and james vii and ii and also son in law of james. he became a confidant and adviser of william and when in 1688 william invaded england and james fled, stair came with william in the royal flagship. he acted as intermediary between william and the scottish convention 12. aps vii, 124. 13. e. u. laing. mss. 11. 521. 14. aps, viii, 242, c.5. 15. aps viii, 243, c.6. 16. aps viii, app. 32. see also viii, 490, c.52. 146 viscount stair which ultimately in april, 1689, offered the crown of scotland to william and mary. in march 1689, the lord president of the court of session, sir george lockhart, was conveniently assassinated by a disgruntled litigant and in october stair was reappointed to his old office and to the scottish privy council. he held office until his death in 1695. in 1690 he was created viscount stair, lord glenluce and stranraer.17 in that year too attacks by political enemies drove him to write and publish his apology defending his conduct. he left a large family, several of whom attained distinction. is his eldest son, john, was lord justice clerk, 1688-90, lord advocate 1687 -88 and 1690-91 and secretary of state 1691-95, and as such shared responsibility and obloquy for the massacre of glencoe. in 1703 he became the first earl of stair. the third son, hew, succeeded his father as lord president (1698-1737). the fifth son, david, became lord advocate, 1709-11 and 1714-20. more remote descendants included many distinguished in the law, including several judges, and in the army, and the family is still a leading one in the southwest of scotland. such was, in outline, his varied career, which included much distinguished public service. but it is not for his public service alone that he is remembered, but rather for his writings, and to these we must now turn. at the end of 1681, while in retirement in galloway, after the test act and his consequent resignation, he published at edinburgh a book, the institutions of the law of scotland, deduced from its originals and collated with the civil, canon and feudal laws and with the customs of neighbouring nations. it comprises a dedication to charles ii, and two parts with separate title-pages and pagination, the first comprising 22 titles, the second 9 titles, and there is also a small treatise entitled modus litigandi orform of process observed before the lords of coundl and session in scotland normally bound in. these deal, as he tells us,19 with the constitution of original rights, the transmission of original rights among the living and from the dead, and the cognition and execution of these rights. one should note the title. the word "institutions" is clearly derived from justinian's institutions indicating a general instructional book; "deduced from its originals" means, i think, that principles and rules are arrived at by deduction from more fundamental origins, sources of higher authority; "collated with the civil, canon and feudal laws and with the customs of neighbouring nations" means that scottish deductions are compared with the deductions arrived at by the earlier, wide-ranging, european systems and the customs of england, france and the netherlands. in 1683, while at leiden, he published at edinburgh the decisions of the lords of council in the most important cases debate before them, part first, containing decisions noted by him from 1661 to 1671 when he became president. the book runs to 720 pages and includes about 1200 cases in chronological order. this was 17. aps ix, 112. 18. on them see scots peerage, s.v. stair. 19. advertisement to second edition. 147 the denning law journal the first volume to be published in scotland containing reports of decisions in recognisably modern form. in 1685, while still at leiden, he published there a work entitled physiologia nova experimentalis, a treatise on natural philosophy or physics, which must have been projected or even written earlier, as it is mentioned in the royal licence he obtained for printing his institutions in 1681. it was, however, soon superseded by isaac newton's principia of 1687, but has interest as an account of the pre-newtonian view of the natural world. it is at present being translated for the first time. then in 1687 there appeared the decis£ons of the lords of council and session in the most important cases debate before them; part second, covering the years 1671 to 1681, the years when he was lord president, extending to 896 pages and comprising about 1200 cases. this continued the reports of the previous volume. 20 back in scotland, he published in 1693 a revised edition of his institutions, of which i shall speak more later. in 1695, at the end of his life, he published a vindication of the divine perfections, eighteen meditations on god as revealed by reason and revelation. considering his public duties, as lord president, member of the privy council and parliament, it was a considerable volume of publication. the institutions, phys£olog£a and divine perfections may be regarded as parts of a complete system of his philosophy, comprising knowledge of the relations of men, of the universe and of god, and connects with his original concern in glasgow fifty years earlier with metaphysics and ethics, and goes some way to explain his view of law as ultimately divinely ordained. his contract of 1681 with the printer21 refers also to a treatise containing four enquiries concerning human knowledge, natural theology, morality and physiology but unless the physiologia and the divine perfections are part of this enterprise, this work was never printed and is now lost. there have also been attributed to stair several anonymous pamphlets designed to win support for the revolution settlement of 1689 but the authorship of these is not certain. it is at present being investigated by computer analysis of the word pattern and language used. of these works, the two volumes of decisions must have been at the time of immense value and utility. they were the first collections of decisions to be published in scotland. they cover the first twenty years after the restoration in chronological order and probably include all the important and interesting decisions recorded by a very skilled lawyer who sat or presided when they were argued and decided and we know that he recorded them contemporaneously. to concentrate, however, on his most important work, the institutions. in the 20. several of stair's colleagues on the bench after 1661 also collected decisions, but none of them were published till later. these include gilmour's decisions, 1661-66 (published with falconer's decisions in 1701), nisbet, lord dirleton, whose decisions were published with his doubrs and quesrions in rhe law in 1690, falconer, whose decisions appeared with gilmour's in 1701 and hog, lord harcarse, whose decisions appeared in 1757, while others compiled pracricks, editions of the statutes or editions of books. they were a distinguished and industrious set of judges, one of the most illustrious benches ever to have sat in scotland. 21. printed in dallas sryles (1st ed. pt. ii, 152; 2nd ed. vol. i pt. ii, 76). 148 149 viscount stair dedication of the first edition to charles ii, he calls the work" a summary of the law and customs of your ancient kingdom of scotland", but he goes on "in which material justice (the common law of the world) is, in the first place, orderly deduced from self-evident principles, through all the several private rights thence arising, and in the next place, the expedients of the most polite nations for ascertaining and expeding the rights and interest of mankind, are applied in their proper places, especially those which have been invented or followed by this nation ... but there is not much here asserted upon mere authority ... but the original motives, inductive of the several laws and customs, are therewith set forth ... i have, as distinctly and clearly as i could, by this essay, given a view of the law and custom and the decisions of the session, since the institution of the college of justice, as they have been remarked and reported by the most eminent judges and pleaders from time to time, which i hope shall be more enlarged and improved by others." legal rights accordingly were deductions from higher principles, not merely rules laid down by authority. the second edition of 1693 bears to be "revised, corrected and much enlarged". it contains an advertisement, index of the titles, the text, and an appendix dealing with some recently enacted statutes. in the advertisement, stair points out that he has referred only to the later and more authentic and useful collections of decisions. also, "in the former edition, i designed the treatise to be divided into three parts as being the most congruous to the subject-matter of jurisprudence. the first part, being concerned with the constitution of original rights; the second, concerning the transmission of these original rights, among the living and from the dead; the third concerning the cognition and execution of all these rights. yet, finding it would be acceptable to divide the institutions of our law into four books, as the institutions of the civil law are divided, and, especially because there is a more eminent distinction in our law between heritable rights of the ground and moveable rights, i have divided this edition into four parts; the first being of original personal rights; the second of original real rights; the third of the conveyance of both; and the fourth of the cognition and execution of the whole." he goes on to say that he had divided the long titles in the first book and put them under more special titles and divided the paragraphs. there have been four further posthumous editions of the institutions of which the fifth, by professor j. s. more in 1832, has extensive notes substantially bringing the text up to date; the sixth, which reprints the text of stair's own second edition was published in 1981 to celebrate the tercentenary of the book's first publication. what had prompted stair to write his institutions? there are several possible factors, the study of justinian's institutions, his membership of the law reform commission of 1649, the example of the dutch jurists whose works he probably saw in the netherlands in 1649and 1650,22his membership of the commission on 22. these would include joost van damhouder (praxis rerum civilium, 1567),peter peckius (tractatus dejure sistendi, 1564), petrus gudelinus (de jure novissimo, 1624), hugo grotius (lnleiding tot de hollandsche rechtsgeleerdtheyd, 1621and de jure belli ac pacis, 1625), and simon vanleeuwen (het roomsch hollandsche recht, 1651). the denning law journal union in 1670,23 which showed the threat to scots law, the need in the comparatively settled times after the restoration for a book to guide judges and lawyers. there was still in the 1680's an almost complete dearth of textbooks; craig's jus feudale had been published in 1655 and was used by stair24but only covered part of the ground. it may have been simply the desire of a learned and diligent judge, partly for his own satisfaction, partly for the benefit of his colleagues and younger men, partly to assist and improve the administration of justice, to try to set down in logical form the principles on which the courts should act in administering justice. manuscripts date from as early as 1664 and copies of the work began to circulate in manuscript in the 1670's and this led him to publish it. "my modesty did not permit me to publish it, lest it should be judicially cited where i sat; but now, becoming old, i have been prevailed with to print it, while i might oversee the press."25 he also wrote: "the former edition was collected by me in many years and designed chiefly for my own particular use, that i might know the decisions and acts of session, since the first institution of it, and that i might the more clear and determine my judgment in the matter of justice."26 it is however hard to take this at face value. if stair, or any other lawyer, were compiling a book for his own use, his private reference book, it seems more likely that he would have compiled it as notes, with references, as was done by the compilers ofpracticks, rather than as a fully written out, discursive text. one must suspect that he had publication and the instruction of others in mind from the start, just as modem politicians assiduously keep diaries with an eye to their eventual publication as their memoirs. whether stair realised it or not, and whether he was seeking deliberately to do so or not, he was in fact doing what was being done all over western europe about that time. all over europe jurists were writing texts on the nascent distinct national legal systems which were evolving separately as distinct nation-states developing their distinctive legal system, utilising materials drawn from the civil, canon and feudal laws which had previously, to various extents, been common to them ally what was his view oflaw, in the most general sense of that term? he defined law as "the dictate of reason, determining every rational being to that which is congruous and convenient for the nature and condition thereof ... "28law then was not to him the command of the current political superior, but what human reason dictated. to him the absolute sovereign was divine law, which was also the 23. cf., cowell's institutionesjuris anglicani, 1605; zouche's elementajurisprudentiae, 1629. 24. on this see walker, "the background of the institutions" in stair tercentenary studies (stair society, 1981), p. 69. 25. dedication to first edition .. 26. preface to second edition. 27. k. luig, "the institutes of national law in the seventeenth and eighteenth centuries", 1972 juridical review 193. 28. insl. i, 1, 1. 150 viscount stair law of all rational creatures and also called the law of nature. 29the law by which private rights were constituted, conveyed or extinguished were divine or human. 30 divine law was the law of nature written in the hearts of men and also called conscience,31equity32or the morallaw;33 human law was introduced by men, by tacit consent, custom or command of those having legislative power.34 human laws included the law of nations35 and the civil or municipal law of various communities.36 human positive law was needed to make precise the application of principles of natural law in particular circumstances.j7 his attitude was accordingly that rational creatures, by the exercise of their reason, saw law as the principles regulating conduct, principles dictated by god, nature, reason, conscience and morality. human positive laws stood on a lower plane, being men's attempts to make precise in particular cases what they thought god, nature and reason prescribed. thus stair's view would have been that the law of god or of nature dictated that after some time rights not exercised should be extinguished; the human law of scotland as to prescription lays down that some rights are extinguished after five years, some after twenty years, and some never. his view oflaw is very similar to that of aquinas38and he owes a good deal to the thought of the later spanish jurist-theologians, to vitoria, molina and, particularly, suarez. he was also certainly much influenced by grotius' de jure belli ac pacis of 1625, a book which ranges much more widely than its title would suggest and which he cites repeatedly. grotius also sought to deduce positive law from principles of the law of nature. stair's attitude to and his view of law in general is accordingly traditional and based in the medieval tradition; in its time it was possibly even rather oldfashioned; he has little affinity with contemporary or later theorists such as bodin and hobbes and he cannot be regarded as a precursor of the scottish enlightenment or the scottish school of common sense. this medieval theory of natural law was more held by catholics than protestants, but was also widely held by protestants in the 16th and 17th centuries, not least by calvin. there is nothing inconsistent with stair's presbyterianism in his holding a view of law previously developed mainly by catholic thinkers. as the law has developed today we have to devote all our attention to understanding the positive laws of men and one would be hard pressed to deduce some of the modern rules from dictates of god, reason, nature or conscience. 29. ibid .. 30. i, 1,2. 31. i, i, 5. 32. i, 1,6. 33. i, i, 7. 34. i, i, 10. 35. i, i, ii. 36. i, i, 12. 37. i, i, 15-16. 38. summa theologiae, i, 2, qu. 90-91. 151 the denning law journal but stair was trying to do more than set down the rules currently accepted in scotland. he was trying to deduce propositions from fundamental principles of universal applicability. "the principles of law are such as are known without arguing and the judgment, upon apprehension thereof, will give its ready and full assent; such as god is to be adored and obeyed, parents to be obeyed and honoured, children to be loved and entertained. and such are these common precepts which are set forth in the civil law, to live honestly, to wrong no man, to give every man his right.39but here we shall speak of the most general principles which have influence upon all the rights of men, leaving the more particular ones to the rights flowing therefrom in their proper places. "40he then lays down as the first principles of equity, natural law or conscience, obedience to god,41human freedom,42and human power to bind oneself,43and as the three prime principles of positive law, the liberty of men to make societies, to delimit every man's property and to maintain commerce with others. "the principles of equity are the efficient causes of rights and laws; the principles of positive law are the final causes or ends for which laws are made and rights constituted and ordered."44 that is: equity or natural law gives rise to and creates rights and laws; laws are made and rights constituted to give rise to principles of positive law. an example of his deducing propositions from fundamental principles can be seen in his treatment of reparation. before his time there had been recognised various kinds of wrongs which gave rise to claims by the victims for redress, such as assythment for injuries, spuilzie of goods, ejection from land and so on. stair puts it this way: obligations by delinquence are introduced by the law of nature;45 the obligation to the victim is created by injury or wrongdoing;46 apart from criminal consequences it gives rise to the right of exacting reparation for damage inferred thereby;47 the interests of a person which may be damaged are his life, limbs and health, his liberty, his fame, reputation and honour, his property.48 under these heads fall the recognised specific delinquences, such as injury, extortion, spuilzie, ejection, and others.49 what were stair's models? it is important to observe that while in a general way stair was clearly influenced by justinian's institutions he did not copy the structure or arrangement of that work.50nor did he set out to adapt that work to 39. ef., justinian, inst. i, 1, 3: honeste vivere, alterum non laedere, mum cuique tribuere. 40. i, 1, 18. 41. i, 1, 19. 42. 1,1,20; 1,2,1-16. 43. i, 1,21; i, 3 to i, 18. 44. i, 1, 18. 45. 1,9, 1. 46. 1,9,2. 47. 1,9,2 at end. 48. 1,9,4. 49. 1,9,7-30. 50. the structure of that work is: i: introductory matters, persons and family law; ii: property rights and wills; iii: intestacy; obligations by contract and quasi-contract; iv: delicts; actions. 152 viscount stair scotland nor to produce a scottish edition or version of it. so far as has been discovered the structure of his book is original and not closely founded on any earlier work. if that is so, it adds to his intellectual stature that of himself he devised such a logical structure. what were the sources of his particular propositions? in his apology of 1690 stair wrote: "and i did write the institutions of the law of scotland and did derive it from that common law that rules the world, and compared it with the laws civil and canon and with the custom of the neighbouring nations ... " by the common law which rules the world i understand him to mean the law of nature, conscience or the moral law. the sources most commonly referred to for the rules of human positive law applied in scotland are the decisions of the court of session, drawn largely from his own decisions, and from some of the practicks, particularly those of spottiswoode, hope and haddington. next are statutes of the scottish parliament. a long way behind these in frequency of citation are craig's jus feudale, the dutch jurists, particularly grotius, the bible, the roman civil law and the canon law. stair's book is accordingly a statement predominantly based on indigenous materials, not on either theoretical or foreign ones. the hierarchy of formal sources is (1) our ancient and immemorial customs called our common law, as declared in frequent decisions of the lords of session; (2) scottish statutes; (3) acts of sederunt of the lords; (4) recent customs and practices as evidenced by decisions and, failing other sources, (5) the judges' views of what equity and natural law prescribe. to him the civil, canon and feudal laws and the customs of neighbouring nations were not sources from which to copy so much as sets of principles and rules valuable as yardsticks for comparison. they might cast light on scots law by showing what the lawyers of other developed countries had deduced from ideas of the law of nature. stair made substantial reference, particularly in book i, to roman civil law but not as authoritative nor to adopt it but rather, when deducing the law of scotland from principles of natural law, to see how far the results corresponded with or departed from principles recognised in roman law. in some cases he suggests that a roman rule should be adopted in scotland to fill a gap, in default of native authority. similarly he recognises that in certain areas, marriage, testamentary succession and executry, scots law had, under the influence of the medieval church, accepted rules of canon law but by stair's time that had become an historical source and no longer a well from which to draw a living stream. so too with feudal law; stair founded substantially on craig's jus feudale but a large part of his account is based on the analysis of the customs and conveyancing practice of the 17th century and the decisions which had shaped and clarified these customs: it was a restatement of the feudal law of scotland and there is not much incorporation of or even cross-reference to the original feudal law of western europe. of those "customs of neighbouring nations" he refers mainly to england and france, but not nearly as much as did craig who pointed to numerous parallels with england, though he considerably overstated the similarity. 153 the denning law journal to what extent did stair create modern scots law? i think he did to a material extent. in the first place he put a great many rules and groups oflegal propositions into order, grouping them in a logical way, under general heads in a way that had never been done before. there had previously been recognised various rules about contracts and about harm to others and so on, but stair, following roman ideas, recognised the broad general category of obligations in general,5l which he then divided into conjugal obligations springing from marriage, 52 obligations between parents and children, 53obligations between guardians and their wards, 54 obligations to make restitution of things belonging to others,55 obligations to make recompense or remuneration, 56 obligations to make reparation for delinquencies, 57 and obligations conventional, by promise, paction and contract,58 followed by titles on the major particular kinds of contracts59 and concluding with liberation from obligations.60 previously, and to some extent afterwards, an obligation meant in scots law a bond, particularly to pay money; stair introduced the wider concept of obligations as a nexus between persons, created by family relationship, by unjustifiable harm, or by promise or agreement. secondly, under each of the titles his analysis and exposition of the principles is a great advance on anything that had appeared previously. previous writing, published and unpublished, recorded the substance of particular statutes or of the decision of particular disputes, but did not, as he did, state general principles or propositions and deduce from them the precise rules which determined particular disputes, with frequent illustrations from decisions which he and others had noted. most of the points collected in the earlier practicks are specific points only and it is not at all clear whether there is a higher and more general proposition. thirdly, at some points he filled gaps by suggesting the use of a principle derived from elsewhere, frequently from roman law. a notable one is the principle of the carrier's liability derived from the edict nautae, caupones, stabularii. what has been the importance and value of stair's institutions? the short answer is: enormous. from its first publication the institutions has been regarded as of outstanding importance and value. not only does it cover the whole private law but it presents the subject matter not as a series of dictates of a superior but as a body of principles deduced from fundamental propositions of just dealing, which principles are then elaborated, explained and exemplified and the exceptions stated. thus in relation to the right to be free from harm or injury, he expresses the basic proposition "that obligations by delinquence are introduced by the law of 51. i, 3. 52. 1,4. 53. i, 5. 54. 1,6. 55. i, 7. 56. 1,8. 57. i, 9. 58. i, 10. 59. i, 11-17. 60. i, 18. 154 viscount stair nature";61 the views of all men and all nations evince this by everywhere acknowledging the reparation of damages. this had a double aspect, punishment, which was a matter for god, and "the obligation of repairing his damage by putting him in as good a condition as he was in before the injury."62 that is the general principle. he then goes on to enumerate the interests which may be infringed by a wrongdoer. 63"according to our several rights and enjoyments, damages and delinquences may be esteemed. as first, our life, members and health, ... next to life is liberty and the delinquences against it are restraint and constraint ... the third is fame, reputation and honour ... the fourth interest that may be damnified is our content, delight and satisfaction and especially by the singular affection to, or opinion of the value or worth of anything that the owner hath ... the last damage is in goods and possessions." this gives us a framework or series of major heads under which the main applications of the principles of repairing damage can be fitted. it is still a sound logical basis for stating and explaining the law.64 then later65 he deals with the individual kinds of delinquences, assythment, extortion, circumvention and so on. the esteem in which the work has been held is evidenced by the number of times it has been cited in argument and decision and relied on as authority. it was being cited even in his lifetime and repeatedly in the 18th and 19th centuries, the classical age of scots law. it was constantly referred to by the later text writers. thus hume in 1821told his students: "he who has done most for us and stands certainly in the highest place is lord stair, an acute reasoner certainly and a profound and intelligent lawyer, who has given us a complete system of our law, from which all later authorities have drawn, and were obliged to draw, a great part at least of what is most valuable in their works."66 what accordingly has been stair's achievement, and why do we, why should we, honour him? in the first place he wrote the first connected narrative statement of the whole private law of scotland, laid out in clear logical order, and well supported by references to authorities. secondly, his text is an enormous advance on all previous writings on the subject. most of the earlier works, the practicks, were then still in manuscript, and some still are, and they were collections of notes and references, very useful materials, but not integrated into a readable text. thirdly, the earlier works, apart from craig, were collections of individual instances and did not infer inductively any general propositions which justified them and related instances. fourthly, the institutions is a creative work in that to a very large extent he created the private law of scotland as a complete and rational system, seeking to deduce specific rules from fundamental principles, not simply 61. 1,9, 1. 62. 1,9,2. 63. 1,9,4. 64. the writer, in his law of delict in scotland (1966), 2nd ed. (1981) found this classification of interests the best basis for a statement of the modem law. 65. 1,9,6. 66. lectures (ed. paton, stair society), i, 14. 155 the denning law journal the rules accepted in his time. fifthly, it is highly original in that it owes little to previous books in scotland, or, for that matter, books at rome or in england, though he certainly owes some of his ideas to the roman law. sixthly, it established scottish private law as a rational body of principles which existed until the present century, since when many of the principles have been overwhelmed by exceptions and changes enacted in the name of reform or obscured by excessively detailed provisions about particular cases. this statement in rational form was probably of great importance when, only 14 years after the revised edition, scotland entered into the union with england. the protection given for scots law in private rights by article 18of the treaty ofu nion would not have been of much value against the ignorance of the eighteenth century chancellors in the house of lords or the patronising disregard of parliaments (which in many respects continues to this day) if scottish lawyers had not had stair's institutions to point to to prove what their law of private rights was. an english chancellor, some fifty years ago, referred patronisingly to "those interesting relics of barbarism, tempered by a few importations from rome, known to the world as scots law." but it was not a scot, but oliver cromwell, who is said to have described the law of england, not much earlier than stair's time, as "an ungodly jumble". finally, and by no means least, stair's great work has been repeatedly accepted as authoritative, as laying down the law as much as does a decision of the court of session. sometimes passages have been explained or qualified but in all substantials it has repeatedly been accepted as the starting point for inquiry as to the principles relevant to a specific difficulty. in the course of time, of course, much of the detail of the law has been changed and there are many topics on which stair says little or nothing. but even the modem law can be fitted into the system and pattern which he established. the foundations which he laid remain, though some of the structures erected thereon have been replaced and many new ones added. but that should not detract from his achievement. i cannot do better in conclusion than quote some of the words of the memorial plaque in the entrance hall of the university: "a supreme master of jurisprudence who in his institutions laid an imperishable foundation for the law of scotland." glasgow has reason to be proud of stair. 156 rights of audience a scottish perspective the right hon. lord rodger of earlsferry* it is an honour for me to have been asked to give the child & co. lecture. when inviting me, sir nicholas phillips suggested that any talk might relate to a difference between procedures in england and scotland. it seemed to me that some discussion of rights of audience might be suitable, since the topic is not entirely free from controversy and a speaker from a scottish background might be able at least to supplement your thinking on the subject. first, a few words of introduction or elementary vocabulary for those contemplating the mysteries of scots law for the first time. in scotland we have solicitors who correspond to solicitors in england and wales. advocates are the scottish equivalent of barristers and they are all members of the scottish bar or faculty of advocates. until the legislation on the scottish legal profession in the law reform (miscellaneous provisions) (scotland) act 1990 advocates had virtually exclusive rights of audience before the scottish supreme courts the court of session in civil matters (including appeals) and the high court of justiciary (hereafter the high court) in criminal matters. similarly advocates had virtually exclusive rights of audience along with barristers before the judicial committee of the house of lords to which an appeal lies in civil matters. 1 even though part ii of the 1990 act contained no new term for solicitors who obtain rights of audience before the supreme courts, the law society's rules approved by the lord president of the court of session2 used the unlovely term "solicitor advocate" and, while some advocates have protested about this terminology, i suspect that it is here to stay and shall use it for the sake of convenience. the second point to notice is perhaps somewhat ironical. while the controversy over scottish advocates' exclusive rights of audience had continued for at least as long as that over barristers' rights,3 there is no doubt that the timing of the introduction of the scottish legislation in 1990 was determined by the introduction *lord advocate. the child & co. lecture 1993, published by arrangement with the right hon. lord rodger and child & co. i. for the detail see stair memorial encyclopaedia of scots law vol. 13 (edinburgh 1993) para. 1325. 2. eg. code of conduct (scotland) rules 1992, rule 2(1). the government's subordinate legislation used the term "rights of audience solicitor" which does not exactly trip off the tongue. see ego civil legal aid (scotland) amendment regulations 1993 (1993 s.1. no. 535). 3. for some of the background see a. rodger, 'the future of the legal profession in scotland: marching to an alien tune?' (1991) 1.r. 1,6 et seq. rights of audience-a scottish perspective of equivalent legislation for england and wales following the breakdown of the marre committee initiative. once the legislation was passed the necessary steps were completed fairly quickly in scotland and the first solicitor advocates were admitted in april and began to practise in may 1993.4 those admitted have indeed appeared before the court of session and high court. all this happened at a time when the english scheme was not yet in operation and still awaited the approval of the heads of division. the result is that we in scotland have some, though limited, experience of the new system in operation. the proposals to allow solicitors to acquire rights of audience in the supreme courts of scotland were not welcomed by the faculty of advocates. this is hardly surprising. none the less it is fair to say and it was noticed during the period of consultation on the proposals and during their passage through parliament that the public approach of the scottish bar was markedly different from that of the english bar. the english bar, supported by some at the very highest levels of the judiciary, mounted a vociferous campaign against the lord chancellor's proposals.s the tone of the scottish bar's campaign against the secretary of state for scotland's proposals was rather different. in their response to the government's consultation pape~ they, of course, made clear their opposition to what was proposed, but in that response and in most of the public utterances of the scottis~judges the rather apocalyptic tone adopted south of the border was missing. there may have been many reasons for this, but one, i believe, was that certain rather sweeping arguments which were strongly pressed in england and wales could simply not be put forward in scotland because of the different way in which scottish solicitors had practised over the years. to bring out the difference we need to look briefly at the historical position, even though any sketch must sacrifice a degree of accuracy for brevity. as i understand it,7 in england until the nineteenth century justice was mostly centralised in the king's courts and the judges would hear cases, civil and criminal, either at the centre in london or on circuit throughout the country. these courts were serviced by barristers who would go on circuit with the judges. the position was changed somewhat in 1846 when the county courts act for the first time established a widespread system of local courts. the traditional organisation of the bar and its discipline based on the circuit system began to break down. at the same time solicitors were given a right of audience in the new courts. in scotland by contrast there was an ancient system of local courts under a sheriff 4. cf. (1993) 38 journal of the law society of scotland 208. 5. the flavour emerges pretty clearly from the debate in the house of lords on 7 april 1989: official report fifth series, house of lards, vol. 505 cols. 1307 et seq. 6. 771elegal profession in scotland: a consultation paper (scottish home and health department. march 1989). 7. see e.g. a.h. manchester, a modern legal history of england and wales 1750-1950 (london. 1950) chapters 4-7. for the nineteenth century developments see especially r. cocks, foundations of the modern bar (london. 1983). 2 rights of audience-a scottish perspective and his substitutes.8 these courts existed throughout scotland and dealt with certain categories of civil and criminal business. although advocates had rights of audience in these sheriff courts, in practice in the earlier part ofthe nineteenth century advocates were not instructed very often since any additional cost of employing counsel could not generally be recovered from the other side.9 the people who actually appeared in the sheriff courts were procurators or agents solicitors to use the modern term and originally only those agents attached to the particular sheriff court could practise there. after 187310 agents could practise in any sheriff court in the country a reform which was considerably resented by the agents since it broke down their local monopolies, while leaving the monopoly of the faculty of advocates before the supreme courts untouched. it is also worth noticing that prosecutions in the sheriff courts were conducted by procurators fiscal who were usually local agents and who were appointed by the sheriff. gradually the procurators fiscal came more and more under the control of the lord advocate until in 1927 all appointments were vested in him and they became full-time civil servants. i i even this very brief outline of the two systems is enough to bring out two points. whereas in england it was only in 1846 that local courts came to the fore, they had always been important in scotland and they had always been manned by agents or solicitors. in civil matters this remained largely the case even after 1849 when clients were allowed to recover the cost of counsel's fees if the court certified that the case was appropriate for the employment of counsel. 12 what was found then is still found today. solicitors do a great deal of the routine work in the sheriff courts, including the preparation of pleadings. on the other hand counsel are frequently asked to revise pleadings, or to conduct legal debates or sheriff court proofs (ie trials) though it is still considered good manners for a solicitor to inform his opponent if counsel has been instructed. in criminal matters the role of agents or solicitors was even more marked. as we saw, the prosecutor, the procurator fiscal, would usually be a local agent and he would conduct the proceedings on behalf of the crown in the sheriff court. similarly, if the accused was represented, it would be by a local agent and this became a major part of the work of many scottish solicitors after the introduction of criminal legal aid in 1964.13 indeed counsel could not be employed in criminal legal aid cases in the sheriff court without special sanction 14 and this was not too readily given. it follows that, even before the recent legislation, solicitors could and 8. see an introduction to scottish legal history (stair society. edinburgh. 1958), chaps. 25 and 26. 9. j. m'g]ashan, practical notes on the jurisdiction and forms of process in civil cases of the sheriff courts of scotland (2nd edition, edinburgh. ]842), para. 397. 10. law agents (scotland) act 1873, s.2. 1]. for an excellent account of the history see stair memorial encyclopaedia vol. 17 (edinburgh, 1989), paras. 530 et seq. 12. m'glashan, practical notes (4th ed. by h. barclay, edinburgh, 1868), para. 439. 13. legal aid act 1964. 14. legal aid (scot]and) (criminal proceedings) scheme 1975, article 15(1)(b)(ii). 3 the denning law journal did appear in the role of prosecutor and defending lawyer in all kinds of case before the sheriff, whether it was before the sheriff alone or before the sheriff sitting with a jury. some of the cases would indeed be serious: where the sheriff sat with a jury, he could impose a sentence of imprisonment of up to two years (raised to three years in 1987) and he could remit the case to the high court if a more severe sentence was required. when the matter of reform of rights of audience came to be discussed in scotland in 1989-1990, the background was therefore rather different from the background in england and wales, where, as i understand the position, the vast bulk of defended criminal work was done by barristers. scottish solicitors had long possessed, and more importantly had exercised, very substantial rights of audience in both civil and criminal cases. unless, therefore, the faculty of advocates had been prepared to assert that at least two centuries of scottish legal history had been based on some fundamental mistake, it was simply not possible for them to adopt the stance that solicitors could not conduct cases properly and that only members of the bar should prosecute or defend significant cases. in the event the faculty chose to argue in effect that the work of the supreme courts was best conducted by a group of specialist pleaders who devoted their whole time and attention to preparing and presenting cases in court and who could therefore provide a better service to the court. the supreme courts, it was said, relied on that quality of service to operate at the level required of a supreme court and moreover, it was argued, the use of specialist pleaders made for the more efficient disposal of business. while this was effectively the same as the core argument ofthe english bar, the faculty presented it in a different tone because of the different background. it is doubtful whether the rather more black-and-white approach of the english bar was really any more effective in the end in persuading the government, the press or indeed the public. you would not expect me to stray into the area of the discussion about rights of audience for members of the crown prosecution service in england and wales. i think that i am, however, entitled to mention the position of procurators fiscal in scotland. as i have explained, they prosecute day and daily in courts throughout the country and in cases attracting significant terms of imprisonment. no-one would suggest that every procurator fiscal is perfect, but it is self-evident that for the most part they do the work well and i have no reason to believe that it would be done better or more economically if counsel were employed. it is sometimes argued that people employed full-time in a prosecution service would not be able to bring the same standard of independence and objectivity to the conduct of cases in court as do barristers, who appear one day for the prosecution and the next for the defence. the position would inevitably be exacerbated, it is said, if the person who prosecuted had taken any part in the investigation of the offence. the scottish experience does not bear this out. it is a matter of the ethos of the prosecuting authority. with us every procurator fiscal is fiercely proud of his independent role: it requires him to take decisions which he believes are right even though they may not please the police or the judge before whom he appears. for instance every working 4 rights of audience-a scottish perspective day procurators fiscal and their deputes exercise their discretion in deciding whether to institute proceedings or to abandon a case. so far from his superiors criticising him or holding him back from promotion for taking a decision, say, to abandon proceedings in an appropriate case, a procurator fiscal or his depute would be criticised if he failed to do so. while this approach pervades all levels of the crown office and the procurator fiscal service, we have a particular perhaps unique mechanism to ensure that it continues to prevail. at the very top of the system are thirteen crown counsel or advocate deputes who are appointed personally by the lord advocate. they appear for the crown in the high court and prosecute the most serious cases such as murder, rape or armed robbery. hitherto they have all been members of the bar who usually act as advocate deputes for about three years and then return to private practice. perhaps their position could be summarised in this way. whereas in england and wales prosecuting counsel are instructed by the crown prosecution service, in scotland crown counsel are commissioned by the lord advocate and give instructions to the procurator fiscal service. because they are in post for only a short time, they are not likely to become unduly prosecution-oriented. the crucial point is that these crown counsel take all the decisions on whether to indict the more serious cases and they also give instructions to procurators fiscal on hundreds of other points throughout the year. these instructions must be followed by the procurators fiscal. this ultimate element of independence is important, i believe, in preserving the ethos of the service and in maintaining public confidence in its independence. the mere fact that certain procurators fiscal may now have rights of audience in the high court does not in any way undermine the argument in favour of having this team of crown counsel drawn from outside as an ultimate safeguard of the independence of the system. so, while i have announced 15 that, as a result of the changes in rights of audience, in future i may appoint one of the advocate deputes from among the solicitor advocate members ofthe procurator fiscal service, i have stressed the need for any such advocate depute to act in all respects in the same way as the advocate deputes drawn from outside. moreover, to ensure that crown counsel continue to operate as they have done up until now, to begin with at least there will at most be only one member of the team drawn from inside the service who can be expected therefore to absorb the particular atmosphere in which crown counsel work. once the scheme has been operating for a few years the lord advocate of the day can decide whether this limit can safely be relaxed to any extent. in summary then on the matter of prosecutors i would say that there is nothing in our experience in scotland which would lead me to accept any argument that permanent members of a prosecution service are in principle incapable of conducting prosecutions in an independent and objective way. they can do so. what is essential is that they should be trained and required to act in this way. providing that is done, permanent members of a prosecuting service will be at least as vigilant as temporary prosecutors in vindicating their high calling as ministers of justice. 15. crown office staff notice. 5 the denning law journal if we turn now to the more general situation in scotland, i can start by giving you some statistics. there are at present 330 practising members of the faculty of advocates, most of them based and living in edinburgh but with a relatively small but increasing number based and living in glasgow, forty-four miles away. all advocates have rights of audience in both the court of session and high court, but most tend to work predominantly in one or the other. as at january 1994 there are in total 44 solicitor advocates, but unlike advocates they may choose to qualify for rights of audience only in one branch or the other. most have done so and accordingly there are 34 solicitor advocates with criminal rights of audience only, 11 with civil rights only and 1 with both. solicitor advocates come from all over scotland, but fifteen of the thirty-four with criminal rights come from the west of scotland where many of the high court trials take place, while seven of the eleven with civil rights are from edinburgh where the court of session is based. eight of those with criminal rights are members of the procurator fiscal service. there are another 26 solicitors in training at present and they are likely to be admitted at the end of april 1994 bringing the total to 52. you will appreciate that even at present the actual number of solicitor advocates is significant, being roughly 13% of the number of practising advocates. a number of solicitor advocates have joined together in an organisation known as solicitor advocate services in order to provide a point of contact through which solicitors may instruct them. these solicitor advocates are therefore seeking to provide their instructing solicitors with a service which is similar to that provided by advocates. it is therefore liable to be open to precisely the same criticisms, e.g. that the solicitor advocates are unfamiliar with the case, have not seen the client at an early stage or return instructions too late. we shall see. in order to qualify for rights of audience solicitors must have had relevant court experience for 5 years immediately before applying. 16 they also require to undergo a course of training approved by the lord president of the court of session. while some more experienced solicitors can obtain exemption from certain elements of the course, in broad outline they are required to attend a certain number of hearings of the court of session or high court, to sit an examination and to attend a course organised by the law society of scotland. i? they are then admitted at a special ceremony in the court of session. it is too early to judge what the lasting impact of the extension of rights of audience will be, but it looks as if it will be considerable. many of the pleas and procedural matters are now being done by solicitor advocates who can easily fit in such appearances, even if taking a particular trial might disrupt the rest of their business. but they are also taking on the conduct of trials. for instanc~ i understand that in a high court sitting in glasgow the accused or one of them was represented by a solicitor advocate in about one-sixth of the cases. two solicitor advocates have appeared in 16. solicitors (scotland) act 1980 s.25a(2)(c) and admission as a solicitor with extended rights (scotland) rules 1992, rule 3(2)(b). 17. admission as a solicitor with extended rights (scotland) rules 1992, parts iii-viii. 6 rights of audience-a scottish perspective effect as senior and junior in a murder trial. crown counsel report that some of the solicitor advocates have been very good indeed, others less so. perhaps that is just what one would expect. the civil practitioners seem to have made less use so far of their rights, but this may simply be because the opportunities are fewer and it is noteworthy that some have appeared both at first instance and in the inner house of the court of session, the civil appeal court. one has conducted a judicial review. overall it appears that the legislation has had the effect of introducing a significant degree of competition in the provision of representation in the supreme courts, though the competition may consist more in the existence of an additional number of persons who can take cases in the supreme courts rather than in the creation of a new rival kind of service. in view of this competition advocates have complained that solicitors who are solicitor advocates do not inform their clients that they could have the services of counsel, if they preferred. it should be noticed, however, that the law society rules expressly cover this point and require any solicitor (which includes a solicitor advocate) to explain all the relevant advantages and disadvantages of selecting a particular solicitor advocate or counsel. is even in the short time that the new rights have been operating, certain things have become clear. the first is the need for codes of conduct and practice for both branches of the profession to be revised to take account of the changed relationship between them. while the legislation was going through parliament, neither branch of the profession took any steps in this respect. more surprisingly, even once the legislation was passed, nothing was done. the law society of scotland produced a code of conduct, 19largely based on the faculty's code,20 but it did not deal with this matter. the faculty of advocates kept an eye on the new training schemes in which some advocates indeed acted as tutors, but they did not adjust their code of conduct on this particular point. the principal development occurred very quickly and came to a head during wimbledon fortnight 1993 hence earning the name by which it became known: "mixed doubles". the very simplest set off acts is this. a solicitor instructs an advocate to appear in the high court or court of session along with a solicitor advocate, acting either as the advocate's junior or, even more controversially, as his senior. at the end of june the then dean of faculty issued a ruling21 which forbade counsel to accept instructions to appear on this basis, although he indicated that some flexibility might be permitted in certain cases. the law society of scotland protested vigorously against the ruling and the director general of fair trading subsequently asked for information about it. speaking for myself, i do not consider that it would be objectionable in principle 18. code of conduct (scotland) rules 1992, rule 3. whether the rule is always observed in practice is, of course, another matter. 19. code of conduct (scotland) rules 1992, sched.1. 20. guide to the professional conduct of advocates (1988) (hereafter "guide"). 21. dean's ruling 29 june 1993: 'no advocate shall appear in any court, whether in a criminal or civil cause, with a solicitor advocate instructed for the same client.'. 7 the denning law journal for an advocate to be instructed by a solicitor to appear along with a solicitor advocate since the solicitor advocate would simply be performing the role which would usually be performed by another advocate. i have difficulty in seeing why it should be wrong for an advocate to appear in this way along with another person who, parliament has said, is entitled to appear in the high court or court of session. it seems to me that, subject to one point, in these circumstances the relationship between the advocate and the solicitor advocate should be much the same as that between two counsel. that relationship is well understood but has not been spelled out in the faculty's code of conduct. the corresponding rules between an advocate and a solicitor advocate would certainly need to be set out in formal terms in the codes governing the two branches of the profession. even if they were difficult to formulate in words, the framing of such rules would not seem to give rise to any great difficulty of principle. but the cases which actually provoked the dean's ruling were different in an important respect. what happened was that a solicitor advocate wished, qua solicitor, to instruct an advocate to appear along with the self-same solicitor acting as a solicitor advocate. it is fair to say, i think, that this particular set of circumstances was not specifically envisaged when the legislation was introduced. in these cases the analysis is very much more complicated since the two persons are really bound together in two quite distinct relationships: the relationship between instructing solicitor and counsel on the one hand; and on the other the relationship between two persons appearing together in effect as counsel. it need hardly be said that the relationship between an instructing solicitor and counsel is very different from that between counsel. so, for instance, one might have the situation where the counsel a was the senior and so prima facie entitled to tell his junior, the solicitor advocate, b, how the case should be handled, while b, qua instructing solicitor, was entitled to sack a if he disliked the line which was being adopted. the negotiation of fees between b, qua instructing solicitor, and a's clerk would also raise sensitive issues, not least in connexion with the proportion which b's fee qua solicitor advocate should bear to a's fee as senior counsel. while these are real problems, they are not necessarily insuperable. indeed it seems to me to be highly desirable even from the point of view of the bar alone that they should be solved in some way which does not debar advocates from this field of work. the fact that certain clients are known to have wished to instruct an advocate and a solicitor with rights of audience oll t~is basis suggests that there is a market for the provision of services in this way: putting the same point slightly differently, it would be unfortunate for members of the bar ifthey could not accept such instructions and earn the fees which the work would bring, especially if the result were that clients in future chose to instruct two solicitor advocates instead. it is therefore good to know that the law society of scotland are apparently working on a possible set of rules to deal with problems which undoubtedly exist. i mentioned that there was one qualification to the proposition that there would really be no difference between two advocates appearing together and an advocate and a solicitor advocate appearing together instructed by another solicitor. the 8 rights of audience-a scottish perspective qualification is that if we have two advocates, then neither can speak to a lay witness,22 whereas if we have an advocate and a solicitor advocate, the solicitor advocate can,23 but the advocate cannot, speak to the witness. for this and other reasons, the faculty have argued that the advocate and the solicitor advocate are in effect not operating on the famous level-playing field. this was indeed one of the reasons why the dean of faculty condemned any arrangement for a counsel and a solicitor advocate to appear together. the difficulty here results at least in part from the faculty's own rules of conduct. the relevant aspect of the faculty's rules is its "general rule ... that an advocate should not interview or discuss a case with, or in the presence of, a potential witness" ,24 the two usual exceptions being the client and an expert witness. 25 solicitors are bound by no such rule. you will recognise the faculty rule as being broadly similar to that applied by the bar council, the first formalised version of which was laid down in 1927.26 dock briefs always constituted an exception to the english version. quite when the rule was adopted by the scottish bar is hard to determine, since it was at one time a matter of pride for the scottish bar that decisions on questions of conduct were neither published nor recorded.27 none the less we can be sure that this was certainly not among the faculty's most ancient rules. we know this from an incident recorded by dr johnson's biographer, james boswell, who practised as an advocate in edinburgh. 28in 1774 he agreed to defend a certain john reid on a charge of sheep-stealing. he tells us that on the sunday evening before the trial began29 he "examined separately two exculpatory witnesses as to his getting the sheep (with the theft of which he was charged) from one gardner. one of them seemed so positive, notwithstanding my earnest request to tell me nothing but the truth, that i began to give some credit to john's tale; but it afterwards appeared that great endeavours had been used to procure false evidence". boswell was the son of ajudge and had been in practice for some years, and yet he apparently saw nothing improper in interviewing these potential witnesses at home on a sunday evening without any agent being present. admittedly his interviews appear to have done his client no good, for he was hanged. despite this unfortunate denouement, we must infer from boswell's account that the present rule came in at some later date. it is not unlikely that the scottish bar took it over from england. 22. guide. para. 9.2.4.1. 23. code of conduct (scotland) rules 1992, sched. 2, para. 7(6). 24. guide, nara. 9.2.4.1. 25. guide. para. 9.2.4.2. 26. annual statement of the general council of the bar 1927, p.7. the latest version is contained in the general council's code of conduct of the bar of england and wales adopted by the bar council 27 january 1990, paras. 607 and 609. 27. cf. lord clyde, 'the profession of the law' (1922) 38 scottish law review i and 29 at 39. 28. see w. k. winsatt, jr., f. pottle (eds.) boswell for the defence 1769-1774 (new york, toronto, london, 1959), entries between 15 july and 24 september 1774, pp. 227 et seq. 29. gp. cit., entry for 31 july 1774, p.237. 9 the denning law journal the justification for the rule is as difficult to pinpoint as its origin. the code of conduct of the faculty of advocates says that the spirit of the rule is "that counsel should not under any circumstances do or say anything which might suggest to the witness that he should give evidence otherwise than in accordance with his honest recollection or opinion" .30 but that certainly cannot have been the rationale of the rule as originally adopted in england. in the early nineteenth century the 'rule was that a barrister was not entitled to see either his client or a witness. the rule in that extended form never seems to have applied to clients in scotland again we have good evidence for that in boswell who certainly sees clients and sometimes sees them indeed without any agent being present.3\ the english rule against seeing clients in criminal cases seems indeed to have lasted until about 1889 when charles russell the future lord chief justice saw mrs maybrick whom he was defending in her famous trial for murder.32 (on this occasion the client was convicted, but was in due course reprieved.) yet the important thing to remember is that up until the middle of the nineteenth century parties to a civil litigation were not allowed to give evidence33 and a similar bar applied to accused persons until 189834 so the part of the english rule relating to clients could not have been intended to stop counsel from infecting their evidence. it is therefore doubtful whether that was the explanation of the emergence of the rule as it applied to witnesses. it is in any event rather unclear why the bar should think that discussions with counsel could be more dangerous in infecting witnesses' evidence than conversations with the instructing solicitor. the alternative rationale is that, by not speaking to the witnesses, counsel remain at one remove and so take a more objective approach, which is of advantage to the administration of justice as a whole.35 even if that were a proper justification for the rule today, it seems doubtful whether the rule was introduced to achieve this result .. certainly in the past there were suggestions that due to social vanity the bar had adopted a rule which operated not in the interests of barristers at all, but in the interests of attorneys who, by restricting barristers' access to clients and witnesses, were able to keep to themselves all the lucrative work involved in taking instructions from the client and seeing the witnesses. whether true or not, those suggestions surfaced in the 1840s when the english bar felt under threat from the growing number of attorneys who had rights of audience in the new county courts.36 in the face of this apparent threat of competition 30. guide, para. 9.2.4.4. 31. op. cit. (note 28), entry for 15 july 1774 when compared with the entry for 30 july 1774, p. 236 init. see also the entries for 14 july and 13 august 1774 relating to lady dundonald. 32. e. b. rowlands. 'the etiquette of the bar', (1895) 100 the law times 107 at p. 108 (first column). 33. the rule was abolished in england and wales by s.2 of the evidence act 1851 and in scotland by s.3 of the evidence (scotland) act 1853. 34. criminal evidence act 1898, s.1 which applied to both england and wales and scotland. 35. stair memorial encyclopaedia vol. 13, para. 1357; rowlands, 100 the law times 107-108. 36. 'the etiquette of the english bar: a barrister's grumble' (1898) 104 the law times 546. 10 rights of audience-a scottish perspective which seems to have been not dissimilar to the threat of competition now facing scottish advocates some barristers at least argued that the bar would be handicapped by those rules of etiquette which prevented them from seeing clients or witnessesy happily the level playing-field had not yet been invented, and so that metaphor was not invoked, but the sentiment was the same: it was not fair that barristers should have to compete with attorneys whose rules of conduct allowed them to see clients and witnesses in a way in which barristers could not. barristers should therefore dispense with the rules of etiquette which really in effect worked only to protect attorneys. as we know, that view did not prevail, though the fact that the bar council was asked for a ruling on the position on witnesses as late as 192738 suggests that some barristers may have been unhappy with the position even then. from time to time some advocates have questioned the strict application of the rule especially as it could seem to prevent them taking on minor sheriff court cases where the client did not wish to pay for both a solicitor and an advocate.39 it is probably the case, however, that most court of session judges support the application of the existing rule to advocates in the supreme courts because of the element of independence which it is thought to preserve. yet such a rule has never been applied to solicitors when appearing in the sheriff courts and parliament was not persuaded that it should be applied to them in the higher courts either. we therefore have two different rules of conduct applying to advocates and solicitor advocates in the supreme courts. while this may seem strange, it is essentially an extension of the practice in the sheriff court and parliament was well aware of what would happen in the supreme courts once the legislation came into effect. parliament left the matter to the professional bodies and to the court and so any changes in the rules in the light of experience gained in working in the new circumstances would be a matter entirely for them; the government would not be involved. even if for some reason the faculty came to question whether there was a sufficient ethical basis for the existing rule on speaking to witnesses,4o they would probably think twice before altering it since the practice of advocates or barristers not seeing witnesses can be defended on less lofty but very practical grounds which may well have been behind the continued existence of the rule. advocates and barristers are able to concentrate on appearing in court, advising on the preparation of cases and giving opinions precisely because they do not spend their time seeing witnesses and taking statements from them or from clients. if advocates or barristers did these things, 37. loc. cit. 38. annual statement oflhe general council of the bar 1927. p.7. j. e. singleton, conduct at ihe bar (london, 1933), pp.8 and 14 el seq. does little to explain the purpose of the rule. 39. such a question lay behind the note by dean to advocates' clerks 9 february 1977 on appearances by counsel without solicitors. see swir memorial enclyclopaedia vol. 13, para. 1347. the dean in question was the future lord mackay of clash fern . 40. the chainnan of the english bar has recently indicated that such rules of conduct may need to be examined. ii the denning law journal then they would be indistinguishable from solicitors and would not be able to provide the distinctive kinds of services which solicitors and their clients value. they would also have to set up offices of exactly the same kinds as solicitors with all the attendant overheads. so while an inability to speak to witnesses may be seen in a certain light as a competitive disadvantage, it surely carries with it the important corresponding competitive advantage that the advocate or barrister can offer a particular service without the distraction of dealing constantly with clients and witnesses and without the attendant overheads. a rule which secures the continuance of this type of legal practice can be defended on this basis. in any event the restrictions on advocates seeing clients and witnesses may have comparatively little practical significance in relation to competition with those solicitor advocates who are making themselves available for instruction by other solicitors. in such cases the instructing solicitor will usually have seen the witnesses and the solicitor advocate will be expected to see the client only in the presence of the instructing solicitor. 41 so the position of advocates and solicitor advocates acting on this basis may not be so very different which reinforces the point that they are simply another group of practitioners offering the same kind of service as advocates. in drawing these remarks to a close i am only too conscious that this has been a rather parochial discussion and that in particular i have omitted all mention of the possible far-reaching implications of the provisions of european law on lawyers' services and rights of establishment. apart from post-maastricht fatigue my only excuse can be that the possible emergence of an establishment directive means that these aspects are very much in flux. i have no doubt that change will come from that quarter too, but in the meantime we in scotland look forward to watching, and learning from, what happens in england and wales when the reforms in the courts and legal services act finally come to pass.42 41. code of conduct (scotland) rules 1992, sched. 2, para 3(4) and (5). 42.1 am grateful to mr alan maxwell of the lord advocate's department, mrs pat lawlerofthe faculty of advocates and mr bruce ritchie of the law society for assistance in preparing the revised text of the lecture. it was not possible to take account of developments since january 1994. 12 the curious history of trade union law andrew hodge* clarity of underlying principle since 1970 the pace and scale of change in the field of collective labour law have been remarkable, and it seems likely that this process of reform will continue. 1 the 1980s have seen a number of important enactments which seem to reflect a radical view of collective labour relations.2 sit john wood has pointed out that, in this difficult and fast changing legal environment, it is important to achieve "clarity of underlying principle"3 both in our analysis of existing law and in our efforts to predict future developments. it may be that the search for underlying principle requires some examination of the lessons of history. labour legislation and the arguments that have surrounded it have had an important influence on our social, economic and political history. should the law be used to underline or to dilute managerial prerogative? should it be used to encourage or restrain the organisation of workers into trade unions? some of our most respected labour law commentators might argue that there is a sense in which both of the above questions are irrelevant, or even that it is inappropriate even to ask them. the traditional approach to the problems of industrial relations emphasises or even assumes that this specialised and vexed branch of human relations should not be interfered with by the law.4 in a democratic society where it is believed that state intervention should be avoided unless it is demonstrably necessary, this is clearly an important approach which recognises the limits of the law. it is equally clear, however, that parliament and the courts have not adopted the traditional "abstentionist" view in practice. in particular, parliament has intervened in collective labour relations on a regular basis since the 1970s.5 the history of collective labour law might reveal little more than the misguided or even malicious folly of parliament in ignoring the abstentionist prescription, or, "of the school of law, university of buckingham. 1. during the 1989-90 parliamentary session it seems likely that the government will introduce a bill to abolish the pre-entry closed shop. it is also possible that measures will be taken to restrain unofficial or "wildcat" strikes especially those which occur in essential services. 2. viz., the employment acts, 1980, 1982 and 1988 and the trade union act 1984, 3. wood, "the collective will and the law" (1988) 17 h.]. 1. 4. see, e.g., wedderburn, the worker and the law (1971), p.l; if. howarth, (1988) 17 ilj. 11. 5. see, e.g. wedderburn, supra n.4; if. kahn freund, (1974) 3il]. 186. 92 the curious history of trade union law more accurately, the lack of a prescription. certainly, that might help to explain the sometimes fraught state of the law and of relations between governments of all political persuasions and the trade unions, particularly over the last 25 years. but history may be a source of other lessons and other views. it might, for example, point towards other considerations, perhaps non-industrial, which seem to parliament to have called for legislation. if it is accepted that the state has perceived such a need in the past it is very possible that it will do so again in the future. if that is so, it is important to identifyand analyse the conditioning factors that operate on the legislative mind, and to see if any pattern emerges which might help to explain the curious history of collective labour law. the virtue of abstention and the vice oflegalism to focus on the concerns of the state about collective labour relations is to challenge the traditional view which calls for their autonomy from the ordinary legal process. this traditional view requires a little further explanation. put very simply, the argument is as follows. employment is a complex relationship which is only inadequately depicted by the legal device of the 'contract of employment'. while the law of contract in its classical form emphasises individual responsibility and the exchange of resources through a freely arrived at bargain, the exchange of labour for wages is a very different kind of process. here the idea of a free bargain is misleading because of extreme inequality of bargaining power as between employer and employee. while the employer typically represents considerable resources of capital, enterprise and administration, the employee often can only represent his own strength and skill. generally speaking, these may be obtained by the employer elsewhere unless there is a severe labour shortage in the relevant industry or area. thus the employer is probably able to say to the employee: "these are the terms of my offer of employment, take them or leave them." even at this early stage in their relationship there is a very clear disparity of economic power and it is this imbalance that dominates employment throughout. it is a situation that does not rest easily within the conceptual framework of the bargain or within its legal manifestation, the law of contract. so, at this most basic level of labour relations, the law is thought to be out of touch with reality. for example, kahn freund has suggested that the employment relationship is really a command in the disguise of a bargain.6 what is the solution to this central problem of inequality of bargaining power? broadly speaking two quite different ways of approaching the problem might be suggested. first, the state, in order to protect the public interest, might intervene to redress the balance of the employment relationship. it might mitigate the effects of inequality of bargaining power by withdrawing the right to bargain at all. it could 6. kahn freund, labour and the law 2nd ed. (1977), p.6. 93 the denning law journal define the respective rights and obligations of employer and employee in a way which leaves no room for oppression.7 but it is possible that the state would have to do this through the legal process which, it is suggested, is inadequate to the task. the inadequacy of the legal system in this respect, and especially that of the courts, has been explained in a variety of ways ranging from its sheer ignorance of the relevant issues to class prejudice8 and the suggestion that english law is handicapped by an obsession with the power and the rights of the individual.<) as such, law as we now know it does not offer a viable solution to the problem of inequality of bargaining power. 10 in any event, the sheer scale of state intervention that would be required would tend towards the totalitarian. the traditional "abstentionist" school prefers a second and radically different approach. workers can mitigate the consequences of their lack of power as individuals by combining into trade unions which will protect their collective interests. at its most effective, this would unite a given workforce into a monolithic factor of production with which the employer would have to bargain. 11 but even here, it is argued, the law can do great damage because it has alwaysbeen hostile to the necessary process of combination and the abstentionist can draw upon plenty of historical evidence to support this view.12 ideally, the law should keep its distance from trade union organisation and from the process of collective bargaining. there is an appropriate role for the law, but it is essentially neutral supporting and guaranteeing an independent system of self-regulation rather than interfering with it or attempting to assume its functions.13 the public interest and the law since the 1860s parliament has paid periodic lip-service to the 'virtue' of abstentionism. 14 but actions speak louder than words, and the statute books reveal an addiction to the 'vice' oflegislation.1s to be fair, some of it seems to have been intended to support the system of collective bargaining by providing facilities for information and conciliation or by enhancing the organisational rights of trade unions.16 but there are other enactments which go or have gone to the very 7. this is reflected in what might be called the "pre-contractual" history of labour law when all "employment relationships" were governed by statute and the coercive powers of the justices of the peace. 8. griffith, the politics of the judiciary (1981), p.l85 et seq.. 9. see wedderburn, (1988) 17 1.l.j. 1. 10. however, the law has moved in this direction to the extent that, where a contract of employment has existed for a certain time, statutory rights attach to it, irrespective of the express or implied intentions of the parties, e.g. the right to redundancy payments and the right not to be unfairly dismissed. 11. the argument for trade unionism is put with some force by the u.s. supreme court in american steel foundries v. tri-city central trades council 257 u.s. 184 (1921). 12. see the combination acts 1799 and 1800 and, e.g., hornby v. close (1867) l.r. 2 qb. 153. 13. arguably, this is achieved by the kind of legislation referred to in n.l 0 supra. 14. see the remarks in favour of the policy of collective laissez fijire made by the royal commission on trade unions in its 1869 report. 15. especially those of the last twenty years. 16. see, e.g., industrial relations act 1971 and trade union and labour relations act 1974. 94 the curious history of trade union law substance of industrial relations by attempting to influence trade union government, to formalise collective bargaining and bring it within the jurisdiction of the courts or to restrain collective industrial action. 17 obviously, the vicious path of legalism has had its attractions. why? one of the many functions of parliament is to identifywhat it is that the public interest requires and to legislate accordingly. but what does the "public interest" mean? it cannot be identified scientifically; it is a matter of perception. at any given time the most important perception in legal terms is that of the political party that governs through a majority in the house of commons. what a government calls the public interest is a matter of political preference underwritten by the electorate, rather than of empirical research. the process of identifying and legislating for the public interest is inherently contentious. arguments about law and policy do not all take place within the strict constitutional framework, to the extent that such a thing exists. the proceedings of the house of commons and the hustings are only the most obvious examples of democracy at work. many of the most compelling arguments about legislation result from less formal but equally influential encounters between government and sectional interests that may be affected by any change in the law. the lord chancellor's recent proposals concerning the administration of justice clearly go to the interests of the legal professions who have clearly formed a view upon them. these views and counter-proposals are expressed as representing the public interest but it is not entirely coincidental that they also amount to a defence of existing rights, privileges and interests which are entirely sectional. similar forces are probably at work within the legislative process on a daily basis though perhaps less publicly than in the case of reform of the legal professions. like those professions, organised capital and organised labour represent powerful though perhaps wider sectional interests and there is a sense in which their historical and current predicament is comparable to that of contemporary lawyers. their struggle has been for the principle of self-regulation which, to them, serves the public interest which inevitably amounts to their own subjective perception of it. government and parliament may have a rather different view, again probably subjective but perhaps determined in the light of wider considerations or on the advice of expert bodies. the crucial legal and constitutional question is what happens when conflicting perceptions collide. the dynamic and inherently controversial relationship between the "public interest" as identified by parliament and as identified by narrower sectional interests is often fraught with difficulty and where the relevant sectional interest ,has enormous power at its disposal the potential for political and perhaps constitutional crisis is clear. the argument about how much power trade unions really have has raged for many years.18 the 'truth' about this seems to be very 17. see industrial relations act 1971 and, although they are clearly not intended to formalise collective bargaining, the employment acts 1980, 1982 and 1988 and the trade union act 1984. 18. for a summary of some of these arguments see arnold, the unions (1981), passim. 95 the denning law journal elusive. again, perception is all important and there are sections of the public who believe that the trade union movement and the process of collective bargaining have the potential to affect their lives very deeply and they expect the law to take a view to encourage the process, to formalise it or restrain it as circumstances appear to them to dictate. these concerns are obviously of interest to parliament. perhaps as important as the idea of abstentionism is the reality of government and the aspiration that it should be conducted in the wider public interest. the reality and the hope may have to be balanced against the technical logic of abstention and self-regulation. the delicate and sometimes disastrous relationship between the state and the sectional interests that are relevant to the process of collective bargaining may be as instructive in terms of underlying principle as the more specific relationship between capital and labour. collective bargaining and industrial relations generally cannot realistically be treated as an entirely private process because they have such wide ranging effects on society as a whole. the law is bound to reflect this.19 for present purposes, this historical survey focuses on the relatively narrow issue of the relationship between the state and the trade union movement and the development of the trade union law which reflects and influences that relationship. this is because the whole system of collective bargaining depends upon the existence and viability of representative and effective trade unions. the development of trade union law must be symptomatic of the wider concerns of the state and its perception of the public interest. the history of the relationship between trade unions and the state having explored the idea that the constitutional and political relationships between sectional interests and the state are as important as the economic relationships between those interests, it is time to test the idea against the reality of the history of trade union law. the exercise should be approached with two considerations firmly in mind: first, the extent to which the law has recognised the importance of the relationship between trade unions and the state; secondly, the ways in which it has attempted to regulate that relationship. for these purposes, the development of trade union law can be divided into a number of distinct phases each of which reflects a change in the nature of the relationship between labour and the law. phase i fear and prohibition the french revolution of 1789 caused a wave of paranoia to sweep over the ruling classes of europe great britain was no exception. indeed, there was a sense in which britain was especially vulnerable to the threat of revolution because of the scale of economic transformation that it faced in agriculture and industry which were of a kind that is often accompanied by social unrest. parliament 19. cf jenkins and sherman, collective bargaining (1977), ch.1. 96 the curious history of trade union law responded to the threat of political upheaval through repressive measures designed to prohibit any kind of non-state-sponsored collective action. the combination acts of 1799 and 1800 were intended to prohibit a wide range of organisations. they are chiefly remembered for their effect on the infant trade union movement.20 the acts may be seen as a refusal to recognise any significance in the concept of organised labour, but this view is difficult to sustain because if trade unions were not thought to represent a threat, there would have been little point in prohibiting them. it is more likely that the state perceived them as a threat to the established economic order, and therefore as a threat to existing political authority. the combination acts were a crude attempt to hold that threat in abeyance. the important point to notice is the perception of that threat. in 1824 the acts were repealed, but this did not result from any change in the perception of threat, nor from a sudden outbreak of liberalism.21 there was no intention to encourage the unrestricted organisation of labour. in fact, the act of 1824 was probably little more than an alternative technique of repression, based on the theory that trade unions were popular precisely because they were banned and somehow mysterious. it was hoped that the end of prohibition would cause the 'forbidden' fruit to wither.22 parliament retained its apparent belief in a threat to established order the critical relationship between government and sectional interest was recognised and the intention to neutralise that threat remained. all that had changed was the preferred technique of repression. in any event, industrial action remained legally difficult. there was no real evidence of liberalism. in fact 1824 saw an outbreak of militancy among the workforce and 1825 saw further legislation which created new and very broad criminal offences in respect of industrial action.23 the criminal law was not the only hazard facing trade unions during this early phase. the civil courts ensured that even if it was no longer illegal to belong to a trade union, the unions themselves would face serious organisational difficulties. traditionally, trade unions have always seen themselves as unincorporated associations loose, voluntary organisations with minimum legal content beyond the contract of membership embodied in the rulebook.24 due to the nature and purpose of the union, it was inevitable that the contract would require some submersion of individual rights in the interests of the whole. of course, this had the effect of restraining individual freedom of contract. the courts regarded this as an unlawful restraint of trade and consequently held that the union rulebook was unenforceable.25 it may be that the courts took this view because of their 20. pelling, a history of british trade unionism 3rd ed. (1976), pp.25-29. 21. combination laws repeal act 1824. 22. pelling, supra n.20, pp.29-32. 23. combination laws repeal amendment act 1825. 24. see s.,2(1) trade union and labour relations act 1974 though, practically speaking, this may have been superseded by more recent legislative developments. 25. see hornby v. close, supra n.12. 97 the denning law journal supposed obsession with individual freedom. it is equally possible that they saw the common law of restraint of trade as a means of minimising the perceived threat to established order by making union rules unenforceable in the hope that the unions themselves would dissolve into internal anarchy. so long as trade unions remained simple bodies, bound together by a loyalty born from adversity or sponsored by wealthy philanthropists and committed to social change,26 this legal technicality may have presented few problems. however, the growth of less radical but more sophisticated craft unions in the middle of the 19th century saw an increase in the complexity of union government. 27the "new model" unions also emphasised the provision of friendly society benefits a system of organised saving which did not indicate a commitment to the destruction of civilisation as it was then known. superficially, these were not threatening developments. indeed,' so far as the establishment was concerned, they must have represented a considerable improvement upon the syndicalism of earlier years. "new model" unionism involved trade union officials in the administration of large sums of money. the unenforceable character of union rules did not help them, and this represented one of their most serious grievances. at the same time, the influence of trade unions on the economy also grew. they succeeded in organising the "aristocracy of labour" the railwaymen, the engineers and other groups of workers whose co-operation was vital to continuing national prosperity, and who had an interest in it. the representatives of the state could be forgiven for thinking that the threat of organised labour was diminishing. instead, it was in the proce;is of assimilating itself into the complex system of sectional and national interests that seem to be at the core of british government. can it be a coincidence that it was at this stage, at the end of the 1860s, that government began to take account of this change of atmosphere and to listen to the trade union movement? phase ii recognition and tolerance paradoxically, the problems of mid-19th century trade unionism came to the attention of government because of an outbreak of industrial violence in sheffield. in 1867, a royal commission was instructed to examine the issues.28 note has already been taken of some of its conclusions, which seem to have been based on the principle of laissez faire or economic freedom. the apparent permanence and considerable economic power of the emergent trade union movement concentrated government minds on the need to remove some of the legal disabilities resulting from judicial decisions like that in hornby v. close.29 both the state and the sectional interest of organised labour had an interest in achieving some kind of modus vivendi. 26. e.g., robert owen's grand national consolidated trade union of the 18305. 27. pelling, supra n.20, chao 28. royal commission on trade unions 1867-69. 29. see, supra, n.25. 98 the curious history of trade union law the legislative result of this change of atmosphere is to be found in the trade union acts of 187130and 187631which were designed principally to mitigate the common law of restraint of trade. the effect of the 1871 act was to bring some kinds of trade union rules within the protection of the ordinary law of contract by exempting them from the law of restraint of trade and allowing them to be enforced in the courts.32however, the exemption was qualified in that it would not apply to any rule designed to oblige the member to break the contract of service that bound him to his employer.33 the act of 1871 also introduced a system of voluntary registration for trade unions. those whose rules met certain formal requirements could register as friendly societies under an existing statutory scheme.34 both the unions and the state gained advantages here. the unions acquired various fiscal advantages which assisted them in administration of financial benefits, while government acquired a valuable source of information about a powerful sectional interest, and some input into its affairs.35this may have indicated some recognition by parliament that trade unions were permanent and powerful. it also indicated a willingness to do business with them. economic and political developments, not least the extension of the franchise to the very people whom the unions existed to represent, made the need for some kind of relationship pressing.36 the trade union act 1871 was the basis of the law of organised labour for a century.37 but, as folke schmidt points out, government acceptance of the fact of trade unionism should not be seen as encouragement of it. "the laws on industrial action enacted in the 100 years between the trade unions act 1871 and the industrial relations act 1971 were based upon the idea of toleration. the fact that the trade unions were protected did not mean that they were loved by those in the establishment; certainly, the judges were critical and wanted to restore the law to what it was before 1871."38 it is certainly true that between 1871 and about 1910, the courts used the legislation of the 1870s in surprising ways. for example, the withdrawal of criminal conspiracy through the conspiracy and protection of property act 1875 was without prejudice to the judicial discovery of the tort of conspiracy in quinn v. 30. 34-35 victoria c.31 31. 39-40 victoria c.22. 32. trade union act 1871, section 3. 33. section 4. 34. section 6. 35. in the sense that there were formal criteria for the validity of the rules. in the absence of such validity, the union could not register: see section 14 and schedule 1. 36. see representation of the people act 1867. 37. until its repeal by the industrial relations act 1971. 38. schmidt, (1974) 3 i.l.). 69. 99 the denning law journal leatham a few years later.39 perhaps even more interesting was the attitude of the courts to trade unions as institutions at the beginning of the 20th century. a number of distinguished scholars have doubted the importance of the supposedly sterile issue of the organisational status of trade unions, perhaps because it bears the stigma oflegalistic abstraction.4o however, the ways in which parliament and the courts have defined and analysed their legal status may provide a useful indication of more general attitudes. there is a clear difference between seeing trade unions as loose, voluntary associations with minimum legal content and seeing them as sophisticated statutory or corporate bodies, endowed with valuable rights and encumbered with serious obligations both to their members, and to the rest of the world. this issue was addressed by the house of lords in the famous ta.lfvale railway case.41 the crucial question was whether a trade union, registered under the 1871 act, could sue and be sued as an organisation in its own name, in the same way as a corporation. the traditional view was that this was not possible, because unions were seen as simple unincorporated associations with no separate legal personality.42 in the course of argument before the house of lords, counsel for the defendant trade unions submitted that: "a trade union is not a corporation. it is like a club, not a legal entity: and there are good reasons for this view. if the society can be sued as such, the funds intended for the benefit of widows and orphans can be reached and perhaps exhausted in consequence of improper and illegal acts of the society's officers. ,,43 obviously, this statement accords with the traditional view that the union could not be seen as a legal entity. its only legal content was thought to be the contractual nature of its rules. that was the basis of the decision in hornby v. close44 and of the provisions of the 1871 act. lord brampton, however, departed from this view and argued that the legislation of the 1870s had elevated trade unions on to a more sophisticated legal plane. in his view, a registered trade union was a "newly created corporate body created by statute, distinct from the unincorporated trade unions consisting of many thousands of separate individuals."45 accordingly, a registered trade union, like a corporation, could sue and be sued in its own name. its funds became available to satisfy judgment and to purge its contempt of court, and in many respects this is still good law. 39. [1901] a.c. 495; see also temperton v. russell [1893] 1 qb. 715 (trade union sponsored industrial action amounting to the tort ofinducing a breach of contract) and}. lyons and sons v. wilkins [1896] 1 ch. 811 (picketing amounting to the tort of nuisance.) 40. see wedderburn, supra n.4. 41. taff vale railway co. v. russell, supra n.39; if. duke of bedford v. ellis [1893] a.c. 1. 43. [1901j a.c. 426, at p.435. 44. supra n.25. 45. [1901j a.c. 426, at p.442. 100 the curious history of trade union law the significance of lord brampton's view became clearer nine years later in amalgamated society of railway seroants v. osborne.46 in this case, a registered union had decided to maintain a political fund to be financed through a levy on its members. osborne, a member of the union, challenged the legality of the fund and of its purpose. the house of lords seized upon the notion that the registered union was a kind of statutory quasi-corporation and used it to assert a wide jurisdiction to review trade union rules and activities to ensure that they were consistent with the legislation. lord halsbury took the view that the acts of 1871 and 1876 contained an exhaustive definition of permissible union conduct.47 parliament, it seemed, had created a new species the registered trade union and had empowered it to represent its members in matters oflabour relations. its brief did not extend to any kind of political activity. the union was like any other corporate body, allowed to exist and function through privileges conceded to it by the state which retained the right to supervise and restrain its conduct through the courts. and just as the courts were entitled to restrain a corporation from any action ultra vires its charter, statute or memorandum of association, so they were entitled to prevent a registered union from acts not permitted by the trade union acts. lord macnaghten summarised the argument: "it is a broad and general principle that companies incorporated by statute for special purposes and societies, whether incorporated or not, which owe their status to an act of parliament, having their objects and powers defined thereby cannot apply their funds to any purpose foreign to the purposes for which they were not established or embark on any undertaking in which they were not intended by parliament to be concemed.,,48 much of this has been dismissed as mere "tory law", an indication of establishment hostility towards organised labour.49 it is possible that taffvale and osborne represent the consequences of the individualistic obsessions of the common law which make it incapable of constructing rational labour laws. that political preference, rather than legal reasoning, led to these decisions is now regarded as axiomatic.5o the 1880s and 1890s had seen the organisation of unskilled labour into trade unions, made militant by economic recession and more reminiscent of the syndicalist organisations of the 1820s and 1830s than of the craft unions whose interests had been vindicated in 1871.51 also, the franchise was 46.a.s.r.s. v. osborne [191oj a.c:. 87. 47. ibid., at p.92. 48. ibid., at p.94. 49. similar sentiments were expressed by trade unionists recently on the steps of the royal courts of justice after they had heard the court of appeal decline to remove an injunction against a proposed national dock strike. a few days later the decision was reversed by the house of lords. 50. see j. a. g. griffith, supra n.8. 51. pelling, supra n.20, ch.6. 101 the denning law journal extended to the point of universal male suffrage.52 "lib-lab" and even "labour" candidates had been elected to parliament.53 this was the end of an era. perhaps a conservative judiciary hoped to restrain its demise, or even to ease the transformation by restraining trade unions, to prevent them from becoming a sectional interest capable of challenging those equally sectional interests that were represented by the ruling establishment of the 19th century. however, in osborne lord shaw counselled caution and urged that a sense of perspective was important in considering the true significance of the trade union acts. he remarked that: "long before the statutes of 1871 and 1876 were enacted trade unions were things in being the general features of which were familiar to the public mind. they were associations of men bound together for common ends. statutes did not set them up and speaking for myself, i have some hesitation in construing language of statutory recognition as a definition imposing such hard and fast restrictive limits as would cramp the natural developments of the living organism. ,,54 . apparently, lord shaw saw the acts as an attempt to assist existing trade unions, not to establish them in a new form and then to regulate them through the legal system. his was the minority view. the orthodox view of these cases is that they represent the best possible reasons why the state and the law should keep their distance from the field oflabour relations. it was in the house of lords in the first decade of the 20th century that the seeds of doctrines of abstentionism and a!jtonomy of labour law were sown. equally, these elderly and seemingly reactionary judgments and the quasi-corporate theory of labour organisation that they produced seem to contain the seeds of the notion that trade unions are far too important to be left to their own devices. the thoughts of halsbury and macnaghten are, perhaps, inherent in the controversial judgments of lord denning speaking 50, 60, and 70 years later. 55 the idea that there may be an ideal, defined legal relationship between organised labour and constitutional government is as central to the story of labour law in the second half of the 20th century as is the relationship between capital and labour. the battle lines of abstentionism and legalism had been drawn, but first there was a lull in the proceedings. phase iii 1910-1960: a period of tranquillity at first sight, the period 1910 to about 1960 seems anything but tranquil. the relationship between government and organised labour developed in a variety of ways. 52. representation of the people act 1884. 53. pelling, supra n.20, ch.6. 54. osborne, supra n.46, at p.107. 55. see, e.g., lee v. showmens guild of great britain [1952] 2 qb. 329; breen v.amalgamated engineering union [1972] 2 qb. 175, and chea/lv.a.p.e.x [1983] qb. 126. 102 the curious history of trade union law in the first place, it is reasonably clear that the judicial view of trade unions was not wholly shared by parliament, especially during the period of liberal domination that lasted from 1906 until after world war i. the trade disputes act of 1906 gave trade unions a wide immunity against any tortious liability that might arise from trade disputes, 56 and to a large extent this neutralised the most obvious adverse effects of quinn v. leatham and taff vale. the trade disputes act 191357 mitigated osborne by permitting the unions to maintain political funds. but although parliament did much to mitigate the practical effects of these decisions, it did little to discredit the organisational theory of quasi-incorporation that made them possible.58 the concept of a concessionary relationship between the state and the trade unions, regulated through the courts, remained. it may be that parliament simply acted to minimise the chance of conflict between labour and the law. there was an abstention from conflict rather than an abstention from legalism. that is not to say that conflict was absent from this period, for during the 1920s the coal miners and transport workers emerged as the 'crack troops' of organised labour, confronting the government and its economic policies on a number of occasions between 1910 and 1926, most notably during the general strike. during the strike the union movement showed, at the very least, that it had the potential to mobilise the interests of labour to paralyse the economy, though this potential was not,actually realised in 1926. soon afterwards, the great depression began ,to bite. inevitably, the power of organised labour diminishes when demand for labour is flat. in 1927, the atmosphere of tentative collective laissez faire that had prevailed since the trade disputes act 1906 changed. the trade disputes act 1927 restricted the validity of the political fund by emphasising the rights of the individual over the interests of the collective entity.59 it also prohibited political strikes.6o the legal sub-structure of taff vale and osborne was revived. trade unions would be allowed to exist and to function provided that they restricted themselves to the conduct of industrial relations.61 however, the representatives of the state were wary of going too far down the road of regulation. the forces of labour had succeeded in creating a viable political party. at a time of instability in the party system, a radical attack on the unions might have swept the labour party into power.62 the two world wars in our period inevitably led to a great deal of social change. in particular, the relationship between trade unions and the state altered because 56. 6 edward 7, c.47. 57. 2-3 geo. 5, c.30. 58. but see trade union aci 1913, section 1 of which limits the importance of the statutory objects specified in the 1871 act. however, this was subject to section 2 which prohibited the registrar from registering a union unless it was within the statutory objects. 59. especially sections 2, 3, and 4. 60. section 1. 61. subject to n.58 supra. 62. the labour party formed governments in 1924 and 1929 but on neither occasion could it be said that it swept into office. 103 the denning law journal of the imperative need for national unity. during both world wars, government assumed wide powers to direct the economy, to control labour and to suspend collective. bargaining.63 the extent of regulation was enormous. in the circumstances, it is not surprising .that organised labour was prepared to accept this. it is surprising that this co-operation broke down on so very few occasions.64 this new, very close relationship between government and trade unions was especially significant during world war ii when trade unionists like ernest bevin became leading figures in the coalition government. they were able administrators and they could deliver the co-operation of their members. they were also able to demonstrate that a kind of socialism was viable during wartime, leading to an expectation that collectivism would be helpful during peacetime too.65 this period continued through to the election of the first independently viable labour government in 1945 and, arguably, even beyond its final defeat in 1951. the trade disputes act 1927 was repealed in 1946 so that the law returned to the collective laissezfaire that had prevailed between 1906 and 1927.66 but, again, the system of collective labour law was not the subject of any radical overhaul.67 the spirit of lord halsbury still hovered and the seeds of doctrinal conflict remained. the conflict did not arise between 1945 and 1951 because, while trade unionists were in government, there was no need for fundamental disagreement between the sectional interest and that of the state. also, on the economic front there was a very real sense in which the war was still being fought. the task of reconstruction was enormous. the drive for exports and simple need to feed, clothe and house the population were paramount. friendly and co-operative relations between the state and the trade unions continued through the early years of the conservative government which took office in 1951. senior ministers had worked with prominent trade unionists during the period of wartime coalition. subject to the issue of nationalisation there was much common ground between them.68 it seems clear that, during this period, a relationship of some kind existed between government and trade unions, and that this was thought to be important and positive by both sides. legally, it continued to rest upon the trade unions act 1871 which could mean different things to different people, as the disagreement between lords mcnaghten and shaw in osborne shows.69 but the political climate and the personalities of the time made extensive legal reg1!.lationof trade unions, 63. in both 1915 and 1940 strikes and lockouts became criminal offences. during world war ii, free collective bargaining was suspended and replaced with a system of compulsory arbitration. 64. e.g., the kent miners strike of 1941 which was settled: see wedderburn, supra, n.4, p.29. 65. some of the policies and proposals of the wartime coalition became the basis of a postwar political consensus. 66. trade disputes and trade unions act 1946. 67. indeed, the express purpose of the repeal was to restore "all enactments and rules of law" affected by the trade disputes act 1927. 68. pelling, supra n.20, pp.257-260. 69. see, supra, text pp.101, 102. 104 the curious history of trade union law through the 1871 act or otherwise, unnecessary. but this p~riod of tranquillity did not last. phase iv the 1960s: the beginning of conflict in the late 1950s and early 1960s, british society began a fundamental reassessment of the role of trade unionism, at a time when society as a whole was in the process of change. the cost of the second world war and the process of decolonisation had changed the ground rules of the british economy. the need for britain to "pay its way" became a dominant political theme, and the control of living standards became the core of economic policy.7oclearly, there was a tension between this theme and the need for trade unions to represent the rising aspirations of their members. while government developed a strong interest in the policy of pay restraint, the unions felt themselves to be obliged to oppose that policy for the benefit of their members and in order to preserve free collective bargaining. the relationship between the state and trade unions now contained a very basic and direct conflict of interest. government believed that pay restraint was clearly in the national interest. equally clearly, trade unions saw the imposition of pay restraint by the state as contrary to the interest of their members. this conflict dominated the atmosphere of the relationship, and its legal content, for the next 20 years. during the late 1950s and early 1960s, however, government was reluctant to use the law as an instrument of its policy towards the unions. certainly, there were judicial decisions which re-emphasised that trade unions, despite their 'privileges' were not 'above the law' and that there was a legal presumption against strikes.71 nevertheless, parliament attempted to avoid conflict and to promote co-operation by 'oiling the wheels' of the existing relationship, and drawing upon existing good will. the government set up a national economic development council which drew its members from government, capital and organised labour and was chaired by the chancellor of the exchequer.n its function was, and still is, to identify . obstacles to economic development and ways of overcoming them. this may be seen as a component of a new technique for the formulation of economic policy, relying upon negotiation between the state and the major economic interests. to begin with, this technique was not conspicuously successful. it was difficult to build a consensus around the policy of pay restraint, which remained unpopular. unfortunately, the validity of the whole exercise depended upon achieving such a consensus.73 pay restraint was inimical to the most basic interests of organised labour and, to some e"1ent, it was contrary to the interests of capital as well. because of this diversity of interest, the conservative governments of the late 1950s and 1960s were forced tu adopt alternative policies. interestingly, they did 70. e.g., selwyn lloyd's pay pause of 1962. 71. see, e.g., lee v. showmens guild, supra n.55, and thompson f5 co v. deakin [19521 ch.646. 72. created under the auspices of the chancellor of the exchequer. 73. pelling, supra n.68. 105 the denning law journal not proceed along the course of legal regulation of collective bargaining. instead, they were forced to rely upon short term fiscal and monetary adjustments as a way of managing demand and controlling the economy; again, without notable success. the labour party returned to power in 1964, but their predecessor's problems remained. the crucial question was how to achieve export led economic growth. for the wilson government, restraining consumption at home was only a part of the solution. the new administration also placed a great deal of faith in the modernisation and central planning of the economy. the basic concept of the nedc was expanded and a new department of economic affairs was created. its influence was to rival that of the treasury; its brief was to plan for and promote strong and sustainable economic growth. the co-operation of capital and of organised labour was plainly crucial to its success. it seems that trade unions were prepared to accept the desirability of planned economic growth in principle. in practice, there were serious' difficulties. financial problems, resulting partly from the instability of sterling, caused inflation. in an inflationary environment, it became very hard for union leaders to restrain the expectations of their members.74 in the middle and late 1960s there were serious national strikes among the railwayworkers, the dockers and the merchant seamen. again, government did not choose to use the legal system to meet the problem.75 instead, the search for informal consensus continued, albeit in a more public and perhaps desperate way than before. state intervention took the form of persuasion, emphasising that the national interest required restraint from sectional interests. many trade union leaders sympathised with the core of what ministers were saying, but it remained difficult for them to reconcile the proposed sublimation of their members' interests with their basic function, the promotion of those interests. in short, those leaders were unable to deliver the co-operation of their members.76 the principle of abstentionism, and the loose organisational structure that it allowed unions to retain, meant that they could not be controlled even by their own officials. the co-operative relationship between government, labour and capital began to crumble under the weight of spontaneous and unofficial industrial action. so did the government's economic policy. in this climate, it is not surprising that policy-makers began to doubt the sense of collective laissez faire and co-operative economic planning, or at least their ability to exist together. to many, it seemed that a new, more formal set of relationships was needed: between labour and capital, and collective bargaining and the law. in some minds at least, thoughts of taff vale and osborne revived.77 74. for an account of this period see harold wilson, the labour government 1964-1970 -a personal record, ch.l. 75. subject to the trade disputes act 1965 which had the relatively narrow purpose of overruling the controversial decision of the house of lords in rookes v. rookes [1964] a.c. 1192. 76. see pelling, supra n.20, pp.262-266. 77. see, e.g., a giants strength (inns of court conservative association, 1958). 106 the curious history of trade union law a royal commission, chaired by lord donovan, reported its findings in 1968.78 in its view, the complex relationships between labour and capital, collective bargaining and economic policy could only improve and stabilise if relations improved and stabilised on the shop floor. the views of union members were subverting the vital process of collective bargaining and turning it into the great imponderable of economic policy. shop floor tensions were the source of unofficial industrial action which, in tum, was a cause of economic dislocation. having identified the flaw in relations between competing economic interests and the national interest, the donovan commission had to recommend remedial action. the commission reaffirmed the virtues of the policy of abstentionism and the inadequacy oflegalism as an approach to industrial relations. however, it also proposed the enactment of industrial relations legislation which would formalise and strengthen collective bargaining. it was thought that government had a role, but that it should be value neutral. it would not claim a controlling interest, but it would create machinery for the registration of collective agreements in the interests of consistency and certainty. it would also act as a source of information and advice. none of this was outside of the supposed 'tradition' of abstentionism. however, there were other proposals which contemplated a much more direct and legalistic relationship between the state and the unions. for example, it was proposed that union rules should conform with statutory standards formal and substantive, and that union members should acquire the legal right not to be unfairly excluded or expelled from their union, as a corollary to the right not to be unfairly dismissed by an employer. these were legalistic proposals contemplating the development of organisational norms by the state, and their embodiment in the law. the donovan report is often cited as the central text of the abstentionist analysis, yet it can also be seen as a vindication of the legalistic view in taff vale and osborne. the commission was prepared to propose quite extensive legal regulation of collective bargaining, and of the trade unions themselves. the trade union movement reacted to these proposals with considerable suspicion and some alarm at the prospect of legal involvement in collective bargaining, and in their own internal affairs. so far as they were concerned, the law should be used to underpin collective bargaining by guaranteeing minimum conditions of employment and the right to strike, but it should go no further than that. 79 the government, convinced that a new approach was needed, published a white paper entitled "in place of strife".8o ostensibly, the document adopted the donovan analysis, but it also proposed that the role of the law should be strengthened. the newly created office of secretary of state for employment and productivity would carry with it a power to impose a conciliation pause before 78. cmnd. 3623. 79. for a more detailed summary of the principal recommendations and of trade union reactions to them see balfour, unions and ihe law (1973), ch.2. 80. cmnd. 3888. 107 the denning law journal unofficial industrial action. trade unions would be obliged to ballot their members before sanctioning official action. new statutory duties would be enforceable by way of fines, through an industrial board. "in place of strife" contemplated an enhanced role for government in the field of industrial relations. the aim seems to have been to use the law to modernise and plan collective bargaining in order to modernise and plan the economy. however, the proposals failed because of the inability of the parliamentary labour party and of the cabinet itself to unite around them. the unions were vehemently opposed to the creation of a new, more interventionist legal regime. the labour party was unable to overcome that opposition. in place of introducing legislation, parliament was forced to accept a "solemn and binding" undertaking from the tuc that it would use its best endeavours to prevent or resolve unofficial strikes. it would not accept any legal intervention in the internal affairs of unions, nor any legal restraints upon their freedom of action.8l as parliament was unable to act, government was forced to depend for the success of its policies upon the goodwill of a sectional interest. this was in stark contrast to the position in 1871 when trade unions had to rely upon parliament to carve out their place in the legal system. for the first time it was possible to say that in the relationship between the state and organised labour, it was the sectional interest that had the upper hand. the economic and constitutional tensions that were contained in this development erupted into conflict in the decade that followed. phase v the 1970s: crisis and experiment when a new conservative government took office in the summer of 1970, it saw itself as having received a clear mandate to use the law to reform industrial relations. there had been a 'legalistic' school within the conservative party throughout the 20th century. while in opposition, the party had published an 'alternative' to "in place of strife" entitled "fair deal at work".82 its recipe for reform contemplated a substantial injection oflegal supervision oflabour relations. while the unions continued to preach the creed of abstentionism, government became committed to the policy of legalism. the industrial relations act 1971 drew heavily upon "fair deal at work" which was in tum influenced by the federal labour relations law of the united states. american labour law depends upon organised collective bargaining, and there is a sense in which congress is responsible for its existence. however, the whole process and the trade unions themselves are subject to a wide range of legal obligations, and to the supervision of the national labor relations board and the 81. for a first hand account of this period see wilson, supra na, chs. 28-31. see also balfour, supra n.79, ch.3. and jenkins, the bailie of downing street (1970). 82. conservative political centre, 1968. 108 the curious history of trade union law secretary of labor. m3 an atmosphere of economic and political crisis, a belief in legalism and the transatlantic influence these were the conditioning factors that led to the industrial relations act. the provisions of the act are discussed exhaustively elsewhere, but its major principles should be mentioned.84 as has been said, the trade union act 1871 had created a system of voluntary registration of trade unions. the 1971 act enhanced the importance of registration. a "union" that failed to register would not be a "trade union" at all for the purposes of the act. registration was not possible unless the union rules appeared to a chief registrar to be fair, responsible and democratic. if at any time the rules failed to meet the statutory criteria, the chief registrar could apply to the new national industrial relations court for an order cancelling any existing registration.85 the significance of this new, stronger concept of registration is obvious. it meant that the state, through the chief registrar and the court, would have power over trade union government to an extent that was far greater than anything contemplated by the law, before or since. the theme of legal intervention in the internal affairs of unions was repeated in a statutory right to membership or non-membership of a trade union.86 it was in the nature of a voluntary association that it had the right to regulate its own membership this was a part of the culture of abstentionism. similarly, the efficiency of collective bargaining was thought to depend upon solidarity, frequently enforced through union membership agreements. the act moved away from those principles.87 many saw this as an attempt to impose the lawyer's conception of individual liberty upon organisations which, by their very nature, take a more collectivist view of freedom. another effect of the 1971 act was to give labour law its own distinctive legal system. collective bargaining and industrial action were to be analysed by reference to a code of unfair industrial practices, based on the unfair labor practices of us labour law.88 these new concepts were to be applied through a system of industrial tribunals and a national industrial relations court.89 the tribunals had existed since 1964, with very limited jurisdiction. the nirc was an innovation. it was exclusively concerned with labour law and, like the industrial tribunals, was composed of a legally qualified chairman (in this case a high court judge) and two 'wingmen' with industrial relations experience. the court was of similar status to the high court 83. see national labor relations act 1935 as amended in 1947 and the labor-management reporting and disclosure act 1959, 29 u.s.c. s.152 et seq.. 84. see, e.g., r. simpson and j. wood, industrial relations arid the 1971 act (1971) and, as a retrospective, kahn freund, (1974) 3 il.j. 186. 85. industrial relations act 1971, part iv. 86. sections 5 and 6. 87. the act abolishes the device of the pre-entry closed shop but permitted the adoption of the american device of the 'agency shop': see sections 7 and ii-18. 88. sections 54 and 55 of i.r.a. 1971; if national labor relations act 1935, 29 u.s.c. sections 158(a)5, 158(d) et al .. 89. i.r.a. 1971, part vi. 109 the denning law]0urnal and had the right to imprison or fine for contempt of court a power that it used to disastrous effect during its brief life.9o the industrial relations act was a bold attempt to regularise and supervise the conduct of industrial relations. the role of law was increased, and an attempt was made to systematise it. the government took the view that it was responsible for economic policy and for the protection of the national interest. it also had the right to require that industrial relations be conducted in an efficient and orderly way. law appeared to be the best way of ensuring that they were. although law, as an instrument of policy, can influence and harness processes and interests and can act as an umpire between them, it cannot define them. if a new system of law is to survive it must have the co-operation of those who are affected by it. clearly, the required co-operation was not forthcoming from the trade union movement. the industrial relations act failed because of organised opposition. this was largely passive. on the whole, the unions simply failed to acknowledge the act's existence.9i there were a number of emotionally charged legal actions which brought the act into disrepute. the state had committed itself to legalism and to offering a highly organised system of industrial relations. the offer was not only resoundingly rejected, it was never seriously considered. the industrial relations act jeopardised relations between the government and the trades union movement, though there is evidence that the real objection was to the act's legalism and not to the conservative government itself.92 between 1972 and 1974, the economy staggered from crisis to crisis. the price of oil increased dramatically, there was runaway inflation and a series of national strikes, culminating in the miners' strike of 1973-4. in february 1974, the prime minister sought a dissolution of parliament and fought the ensuing general election on the emotive issue of "who governs britain?" by now, the electorate could be forgiven for thinking that no-one could govern without the consent of the unions. the labour party was able to form a minority government. one of its first measures was the repeal of the industrial relations act.93 in october 1974, the new government was confirmed in office with a parliamentary majority of only 3 seats. through its own bitter experiences in the late 1960s, and those of the conservatives, the labour party seems to have concluded that economic policy and pay restraint were only obtainable with the active co-operation of the unions. legal regulation of collective bargaining was thought to be unworkable. indeed, some conservatives had also come around to this view.94 the relationship 90. see churchman v.joint shop stewards committee [1972] 1 w.l.r. 1094. for a readable account of some of the difficult cases that arose from the act, see lord denning, the closing chapter (1983), pp.164-177. 91. a colleague who taught a course for shop stewards in the early 1970s found that many would turn their backs to her whenever the act was mentioned. 92. see the reported remarks of lord carr in arnold, supra n.18, pp.22 and 23. 93. trade union and labour relations act 1974, s.1. 94. young, one of us (1989), pp.108-11o. 110 the curious history of trade union law between government and the trade union movement had to be placed on a new footing. the labour government approached the problem by emphasising the concept of partnership and inviting the union movement to participate in the creation and execution of economic policy. this approach was implemented through the novel, device of the "social contract", an agreement by which the unions promised pay restraint in return for the adoption of socialist policies, legal guarantees of trade union independence and organisational rights and a code of minimum workers' rights.95 symbolically, the trade union and labour relations act 1974 provided that trade unions were not bodies corporate and that they were not to be treated as if they were.96 thus, the ghosts of taff vale and osborne were laid to rest, though some of their practical consequences remained. a great deal of our modem labour law was created under the influence of the social contract.97 for a time, both government and labour were able to deliver their sides of the bargain. there was an absence of confrontation and inflation was brought under control, but by 1978 the flaws in the social contract became apparent. when an agreement comes under pressure it tends to fall apart, yet where such pressure is exerted government has to make difficult decisions. if government depends entirely upon an accommodation with a sectional interest, it is vulnerable. due to external pressures, the goverment was forced to cut public expenditure and to take demand out of the economy. this was a result of powerful sectional interests operating in the financial markets.98 government was seen to be reneging on its obligations under the social contract. in these difficult conditions, the government was unable to agree on an appropriate level of pay increases with the tue. the social contract became an economic impasse. the state reverted to the language of intervention and control. the government tried to impose pay norms, and the courts restricted the immunities of trade unions in respect of industrial action.99 in the autumn of 1978, it was expected that the government would seek a new electoral mandate in order to get the social contract back on course. it failed to do so, raising the suspicion that it had lost touch with reality. during the winter, the tension between government and organised labour resulting from pay policy exploded into a "winter of discontent." the authority of the government, already tenuous because of the lack of a parliamentary majority, crumbled. the social contract was, in a sense, the high water mark of the concept of abstentionism. certainly, it involved a very close and direct relationship between 95. for an account of and views on this period see arnold, supra n.18., chao 96. section 2(1). 97. e.g., employment protection act 1975; trade union and labour relations act 1974; trade union and labour relations (amendment) act 1976; sex discrimination act 1975; race relations act 1976; employment protection (consolidation) act 1978. 98. interests that were arguably vindicated by the intervention of the international monetary fund. 99. especially the court of appeal while lord denning was the master of the rolls: see, e.g., b.b.c. v. hearn [1977] 1 w.l.r. 1004 and express newspapers v. mcshane [1979] 1 w.l.r. 390. (h.l.). if. mcshane v. express newspapers [1979] i.r.l.r. 79 (c.a.). 111 the denning law journal the government and organised labour, but the relationship was to be regulated by negotiation and bargain rather than by law. to that extent, it was the antithesis of taff vale, osborne and the industrial relations act 1971. in another sense, however, the conservative and labour governments of the early 1970s had a similar vision. both believed in economic policy through the consent of sectional interests. there is evidence that, on the whole, the trade unions and the heath government had the beginnings of a fruitful relationship. i if the industrial relations act had been given a chance, it might have become the basis of a kind of social contract or tripartism, involving government, capital and labour. the labour government wanted the same kind of relationship, but set about creating it in a different way, without law, because of the experience of the 1960s and its 'special relationship' with the unions. it is arguable that the story of the early 1970s is the story ohwo attempts to build a 'corporate' state, based on the positive agreement of national and sectional interests. the first attempt was legalistic. it failed. the second was abstentionist. it failed too. the relationship between the state and trade unions was in a state of crisis. the 1980s a new approach? during the 1979 election campaign, james callaghan instructed the electorate that: "the question you will have to.consider is whether we risk tearing everything up at the roots."z apparently, some conservatives were unimpressed by the corporatism and collectivism of the 1970s. it was their intention to discard them. plainly, this would profoundly affect the relationship between the trade unions and the state, such as it was. the new prime minister and her advisors believed that there was little point in seeking consensus with the unions in the traditional sense. however, there seems to have been a desire to change the union-government relationship into one of "positive partnership".3 the question was, how to go about making that change. the new government, after winning yet another general election fought on the issue of union power, promised measured legal intervention in industrial relations and in the internal affairs of trade unions. some elements in the conservative party were anxious not to plunge into a 'root and branch' reform of the kind that had been attempted in the early 1970s. the three conservative governments that have held office since 1979 have approached the perceived 'problem' of trade union power in two basic ways. first, they have used economic policy. in the early 1980s the government confronted inflation by attempting to control the money supply. initially, this deepened an existing world recession. high interest rates and a strong currency 1. see, supra, n.92. 2. quoted in young, supra n.94, p.l31. 3. ibid., p.1i6. 112 the curious history of trade union law made it hard for british industry to compete abroad, and suppressed demand at home. because of this, industry shed labour. it has already been noted that when demand for labour is weak, the power of organised labour is reduced. in this climate, the problems of the 1970s were unlikely to recur, or at least to have the same effects. it is questionable whether the decline in the power of the unions was an intended or an unintended consequence of broader economic policy. it may be that it was simply a welcome by-product. thus, the relationship between the state and organised labour was regulated, not by statute and judicial decisions, but by the more mercurial laws of economics. secondly, the conservative government has approached its relationships with the unions through legislation. there have been four major acts of parliament, and a fifth may be expected very soon. the first was the employment act 1980. as well as restricting trade union immunities in respect of industrial action,4 the 1980 act reintroduced donovan's idea of a legally enforceable right to trade union membership. initially, the right not to be unreasonably excluded or expelled from a union applied only in limited circumstances, i.e. where a union membership agreement was in operation.5 like donovan, "in place of strife", and the industrial relations act 1971, this represents state intervention in the internal affairs of unions. it reflects the individualistic conception of trade union government preferred by lawyers as demonstrated in, for example, lord denning's dissenting judgments in breen v. aeu6 and, after the 1980 act, in cheal/v. apex.7 the second major legislative development was the employment act 1982 which has the effect, inter alia, of limiting the legalityof union recognition requirements.8 conceptually, the acts of 1980 and 1982 echo the idea of the unfair industrial practice, which was a central feature of the industrial relations act. the trade unions act 1984 was the most direct legal intervention in the internal affairs of unions since 1971. most importantly, the act requires that trade unions ballot their members before instructing them to take industrial action.9 again, this echoes "in place of strife" and the 1971 act. however, while earlier proposals and enactments required that this obligation should be enforced by government, the 1984 act approached the problem of enforcement by a more indirect route. the absence of a ballot would deprive the union of immunity against any tortious liability that might arise from industrial action.]osuch liability could only be imposed at the suit of the victim of tort. in most cases, this would be the employer with whom the union was in dispute. thus, the state provides a legal framework for those who wish to use it, but distances itself from the responsibility, 4. section 17. 5. section 4. 6. [1971] 2 qb. 175. 7. [1983] qb. 126. 8. section 12. 9. sections 10 and 11. 10. section 10(1). 113 the denning law journal and political minefiejd, of enforcement. here, the old distinction between legalism and abstentionism seems to blur. parliament defines legal norms, but their application is left to the participants in the process of industrial relations who may, or may not, choose to go to court. the 1984 act also requires that all members of a trade union's permanent executive committee should be elected by secret ballot. ii the employment act 1988 repeats and extends the theme of the 1984 act. the express aim of both statutes was, and is, to enhance the power of individual trade union members and to make union government accountable to those whom it exists to serve.12 the 1988 act tightens the requirements of election of the permanent executive committee,13 and gives individual members the right to force a pre-industrial action ballot, through the courts,14 and of inspecting the union's accounting recordsy very importantly, the act builds upon the employment act 1980 by giving every trade union member the right not to be unjustifiably disciplined. 16this is not restricted to members who are covered by a union membership agreement. nor is the concept of "discipline" restricted to exclusion or expulsion as it was in 1980. also, while the concept of unreasonable exclusion or expulsion in the 1980 act was largely undefined, i 7 the 1988 act defines a number of circumstances in which disciplinary action will be deemed to be unjustifiable. these include discipline for failure to support industrial action, even if such action has been approved by ballot, and disciplinary action for suggesting that there is impropriety in union government, unless that suggestion is made in bad faith.18 in addition, a union member who wishes to use the legal system to protect these rights may seek the assistance of a new commissioner for the rights of trade union members. 19 the employment act 1988, and by implication the trade union act 1984, has been criticised as "an objectionable intervention in trade union affairs".2o yet it is notable that the legislation of the 1980s, though radical, is largely enforceable at the suit of private persons employers and individual trade union members. unlike "in place of strife" and the industrial relations act, there are few new regulatory powers in the secretary of state for employment. indeed, it has been ii. section i. 12. trade unions and their members: cmnd. 9s (1987). 13. section 12. 14. section i. 15. section 6. 16. section 3. 17. except by reference to codes of practice issued periodically by the secretary of state for employment. 18. section 3(3). 19. sections 19 and 20. the first case brought with the assistance of the commissioner came before the high court on 26 june 1989 in the form of an application for an order to restrain industrial action by the n.u.r. because of the allegedly defective conduct of the required ballot. the application was rejected. 20. mckendrick, (1988) 17 i.j.l. 141. 114 the curious history of trade union law suggested that that office may face abolition in the near future.21 there are no new statutory bodies, with the exception of the commissioner for the rights of trade union members, and no new courts. thus, although the law has been reintroduced into industrial relations on a scale that has not been seen since 1971, the government is careful to distance itself from the application of the law which, it seems, is the responsibility of the individuals and organisations that are affected by it, and it is the individual that is emphasised most. the philosophies of legalism and abstentionism seem to be finely balanced, and there is a deafening silence as to the nature of the relationship between trade unions and the state. by all accounts, they now have very little to do with each other.22 in the late 1980s, the very idea of collective bargaining in the traditional, industry-wide sense, seems to be under review and the courts are involved in industrial conflict on a day-to-day basis. however, it is far from clear that this is resulting in lower wage demands. as the economy overheats, and inflation returns, some of the industrial problems of the 1970s seem to be retuming. by the end of the decade it should be possible to make a preliminary judgment about the efficiency of the new legal framework, as it is tested by resurgent industrial conflict. there is one aspect of legal development in the 1980s that is very striking. it is the way in which, by increments, the broad policy of "in place of strife" and the industrial relations act 1971 has been implemented without the foundations of the constitution being shaken. trade unions, which never wished to exist as corporate bodies, are now treated as if they were by the 1984 and 1988 acts, in spite of the protestations of section 2 of the trade unions and labour relations act 1974.23 ballots must be held on a wide range of occasions. the policy of legalism has been installed while ministers fastidiously maintain their distance. what is remarkable is that this has become a rare subject of political consensus.24 in a sense, it is at least arguable that taffvale, osborne, "in place of strife" and the industrial relations act have been vindicated. it is even possible that they never ever went away, and that the social contract was the aberration in the story. will the next stage be a movement towards 'positive' partnership? 21. though it has been suggested by the secretary of state for employment that he may present a bill designed to restrain strikes in essential public services. 22. on 28 june 1989, the then secretary of state for transport declined to intervene in the current railway dispute, on the basis that it was for management and labour to resolve their own differences. this may be inconsistent with the suggestion in n.21, supra.a similar view has been taken in the context of the ambulance workers' work to rule' of autumn/winter 1989. 23. indeed, mckendrick, supra n.20, compares the provisions of the employment act with the model 'table a' articles of association in the companies act 1985. 24. in that even the labour party is not publicly committed to the repeal of all the labour relations legislation of the 1980s. 115 the denning law journal conclusion as an historical survey all that has been said can only scratch the surface of the long and complex development of collective labour law, but at the same time it is possible to see the begining of some historical patterns. first, it appears that trade union legislation has been as much the product of concern about the relationship between public and sectional interests as of a desire to influence the operation of the labour market. in fact there seems to be little evidence of a preoccupation with industrial relations as such. on the whole, it seems that there has been more interest in minimising the wider consequences of poor labour relations on the economy and of trade union power on the ability of government to govern according to its own perception of the public interest. at one extreme, the combination acts of 1799 and 1800 present a particularly crude example of all of this and while the trade union acts of 1871 and 1876 denote an important change of attitude the law that they contained turned out to be as much about legal control of trade unions as they were about liberalisation. more subtly, "in place of strife", its successor the industrial relations act 1971 and the social contract all reflect, in different ways, a preoccupation with the need to govern effectivelywhile bearing in mind the views and the power of organised labour. taken at face value, the legislation of the 1980s seems to have less to do with these preoccupations in the sense that the unions seem to have been excluded from the corridors of power to the extent that government does not consider itself to have an important relationship with them at all. however, it is far from clear that this legislation should be taken at its face value. in any event, the lessons of history may show that the abstentionist view of industrial relations is destined to continuing disappointment. the second interesting pattern reflects the way in which the concerns of the 1960s and 1970s remain the concerns of the 1980s and the striking homogeneity of the legislative approach to them. the early ideas of the donovan commission which were reflected in "in place of strife" and the 1971 act have been vindicated in recent legislation to an extent that is surprising. many of donovan's proposals which were so controversial at their inception are now firmly entrenched in the law, in substance if not in form. in that context, the social contract of 1974 to 1978 may be seen either as an historical aberration or as an attempt to formalise an idealised view of the pre-donovan period. it was certainly an attempt to place relations between the state and collective bargaining on to a secure footing. like most other attempts, it was hardly an unqualified success. the history of trade union law in britain has been unhappy and confused and that fact alone may be a sufficient reason for taking the traditional abstentionist view. as a theory it has certainly contributed more to british industrial relations scholarship than any other. but history seems to indicate that it has always operated as a hope or value judgment rather than as a description. even during its supposed heyday, as an official policy the spectre of legalism haunted the feast, always ready to return if the industrial relations system and therefore the state 116 the curious history of trade union law came under pressure. now it has returned with a vengeance. it was probably knocking on policy makers' doors as early as the late 1950s.1t is unlikely to leave in the near future and it is hard to be sure that it ought to. as it stands, a pause for thought and sensible rationalisation and codification seem to present the best hope for clarity of underlying principle and for a praiseworthy "phase vi" in the curious history of collective labour law. 117 freedom of the press: freedom from the press* sir david calcutt, qc as the parliamentary summer recess once again approaches, it is perhaps appropriate that we should be considering the balance which has yet to be effectively struck between the freedom of the press, and freedom from the press that is, the freedom of the press to investigate and to inform the public about matters oflegitimate public interest; and the freedom ofthe individual to be protected from public exposure, by the press, of private matters, but in which the public has no legitimate interest. after all, it is now over five years since the government called for and called for as a matter of urgency a report on the measures needed (whether legislative or otherwise) to give further protection to individual privacy from the activiti~s of the press. it is now over four years since the government accepted, in principle, the recommendations of the committee on privacy and related matters that a package of changes (including some legislative changes) was needed, and accepted the recommendation that this must positively be "the last chance" for the press to get its act together, failing which statutory support would be inevitable. it is now over two years since the government asked me to review and to review urgently the new arrangements which the press had put in place for self-regulation, and to say whether, in my view, those arrangements should now be modified or put on a statutory basis. it is now over 18 months since the government expressly accepted, in terms, my conclusion that the press complaints commission was not an effective regulator of the press. it is now over 15 months since the national heritage select committee published its report recommending statutory support for the voluntary regulation of the press. it is now over 12 months since the secretary of state for national heritage assured parliament that the government envisaged a white paper setting out the government's final views on press self-regulation, and said that the government would do its best to ensure that its response to the select committee's report would be published before * the child & co. lecture 1994. the denning law journal the summer recess by which, i had assumed, he meant the recess of 1993. but, to date, no white paper, still less any government legislative initiative, has yet been forthcoming. my purpose in addressing you today is not simply to repeat what the privacy committee said in its report, nor what i said in my review (though i will summarise it); but rather to take stock of all initiatives, to see where we are or rather, where we have so far failed to be and to see where things may go or may fail to go from here. the background is familiar enough. with increased concentrations of media ownership, with decreasing overall newspaper circulation figures, and with coverprice wars becoming increasingly intense, the temptation to go for the simply prurient story, in pursuit of increased sales, often regardless of who may get hurt, becomes increasingly difficult to resist. go back five years, if you will, to the 1988-89 session of parliament. in that session there had been widespread support for two members' bills, one relating to the protection of privacy, the other to a right of reply. one had been introduced by mr john browne, the other by mr tony worthington. each bill had been given a second reading. each had completed its committee stage in the house of commons. neither of these proposals was new. similar bills had been introduced in the previous parliamentary session by mr william cash, and by miss ann clwyd. and these bills had themselves each been based on earlier bills. public concern, in 1989, was temporarily assuaged by the familiar device of setting up a committee to recommend what should be done. the committee's terms of reference are now worth repeating. they were: "in the light of the recent public concern about intrusion into the private lives of individuals by certain sections of the press, to consider what measures (whether legislative or otherwise) are needed to give further protection to individual privacy from the activities of the press, and to improve recourse against the press for the individual citizen . . ." considering, for one moment, those terms of reference, the focus of attention was to be on the press; it did not extend to the whole of the media. this limitation had its advantages; it also had its obvious disadvantages. secondly, the inquiry was to focus particularly on those measures needed to provide adequate protection to an individual's privacy: it was not principally 'concerned with such other protection as might be needed. thirdly, the government itself expressly contemplated that legislation might be needed. it was made plain from the outset that the committee's report was required urgently. parliament had been told that it was intended that the committee should report within one year; and ministers on several occasions had spoken publicly of the need for a speedy report. 2 freedom of the press: freedom from the press the committee received a great deal of evidence. a number of witnesses, particularly those from the press, provided the committee with detailed analyses of press practice, and of the wide constraints already placed on them. by contrast, a number of people whose privacy had been the subject of intrusion by the press, often in distressing circumstances, sent the committee detailed dossiers of their experiences. many witnesses argued strongly for press freedom to investigate wrong doing. by contrast, many members of the public wrote to us advocating restrictions on the press. these ranged from the outright prohibition of particular activities, to various forms of recompense, and to a variety of punishments for editors and journalists. the report of the committee was completed almost within the year, and published in june 1990. it was unanimous. the report recognised the balance which needed to be· struck between freedom of expression and an individual's right to privacy. the committee took the view that freedom of expression was fundamental in a democratic society, but concluded that this could not be at the expense of other important rights, including an individual's right to privacy. the committee made a number of recommendations. they were intended to form part of one overall balanced package. the principal parts of that package can be summarised in this way. first, any new means of redress would need to be carefully targeted, and should not range more widely than was needed to meet existing gaps in protection. secondly, any new wide-ranging statutory civil rights, aimed at the protection of infringement of privacy, although practicable, would not then as part of the balanced package have been appropriate. thirdly, the most blatant forms of physical intrusion pratices involving' 'doorstepping", bugging, and the use oflong-range cameras should, subject to appropriate defences, be outlawed. fourthly, the existing statutory restrictions on reporting should be strengthened, so as to provide added protection for children and the victims of sexual offences. fiftwy, the press's own arrangements for voluntary self-regulation should be revised and strengthened by setting up a new press complaints commission (as detailed in the report), to replace the old press council. lastly, if the press failed to demonstrate that non-statutory self-regulation could be made to work effectively, then the new regulatory arrangements would have to be given statutory support; and the form which that support would need to take was spelt out plainly and in considerable detail. in the light of what has happened, it is important to see what was said, in june 1990, when the report (cm. 1102) was published, both by the government and by the opposition. the then home secretary (mr david waddington, as he then was) said that the government warmly welcomed the general approach which the committee had taken on the delicate issue of balancing privacy for the individual against the maintenance of freedom of expression. he said that the government was attracted by those 3 the denning law journal recommendations which offered the possibility of an immediate remedy against the worst excesses of the press. he said that this was positively "the last chance" for the industry to establish an effective non-statutory system of regulation. if a non-statutory commission were established, the government, he said, would review its performance after 18 months of operation, to determine whether a statutory underpinning was required. if no steps were taken to set up such a commission, the government, he said, albeit with some regret, would proceed to establish a statutory framework, taking account of the committee's recommendations. mr waddington supported this by an article in the times the following day. he said that he considered the committee's recommendations offered a genuine opportunity to restore the responsible exercise of press freedom to all our newspapers. but if, after a trial period, they did not, the government he said, would not flinch from introducing statutory regulation of the press. this was, then, emphatically to be "the last chance" for the press to put its own house in order. if that failed, the government had made it perfectly plain that statutory support would be needed. no suggestion was then made that such statutory support would give rise to any constitutional difficulties. mr roy hattersley, speaking for the opposition, gave an unqualified welcome to the report's positive proposals. he drew attention to the home secretary's own express belief that newspapers would respond'to this one "last chance"; but he said that he (mr hattersley) had his doubts; and that was why the second recommendation the introduction of statutory regulation by an official body was absolutely essential if the "year of grace" was ignored and if the press did not mend its ways. so, the opposition, too, took the view that this was to be the "last chance"; and that if it failed, statutory regulation would follow; and, again, no constitutional anxieties were raised. but, following publication of the committee's report, the government itself has so far failed to initiate any of the recommended measures which required legislation. the press, did, however, abolish the old press council, and set up, in its place, a new press complaints commission. but the new commission, as set up by the press, differed significantly from the commission which the privacy committee had had in mind, the details of which had been fully spelt out in the report. the principal differences were these. first, the members of the commission were to be appointed, not by a body which was itself independent of the press (as the report had recommended), but, in effect, by a body which was the creature of the newspaper industry. secondly, the report had recommended that the commission should not act as an overtly campaigning body for press freedom; but there were signs that the commission was once again asserting, as the old press council had done, a positive role for the commission in defending press freedom. thirdly, the commission operated a code of practice produced and monitored, not by the commission (as the report had recommended), but by the industry. 4 freedom of the press: freedom from the press fourthly, the industry's code of practice reduced, in several significant respects, the protection which the privacy committee had proposed for individuals: it failed to hold the balance fairly between the industry and the individual. fifthly, the industry's code of practice widened the concept of "public interest' , , thereby significantly reducing the level of protection which ought to have been provided for individuals. . sixthly, the commission was generally unwilling to operate a "hot-line" to prevent anticipated breaches of the code, as the old press council had proposed, and as the committee had recommended. finally, the commission was then unwijiing itself to initiate inquiries, as the old press council had done and as the committee had also recommended. the new commission began work on 1january 1991. this meant that the i8-month period the time when the government had promised a review of the commission's performance to determine whether statutory underpinning was required expired in july 1992. it so happened that the end of this 18-month period coincided with the serialisation in the press of andrew morton's book, diana: her own true story and this itself gave rise to a good deal of further public concern about the behaviour of the press. the government invited me to undertake the review of the performance of the press complaints commission. my terms of reference are again worth repeating. they were: "to assess the effectiveness of non-statutory self-regulation by the press since the establishment of the press complaints commission and to give my vie~s on whether the present arrangements for self-regulation should now be modified or put on a statutory basis; and to consider whether any further measures might be needed with intrusions into personal privacy by the press." the thrust of the review was thus different from that of the earlier report. the thrust of the report had been to consider what measures were necessary to give further protection to individual privacy. the thrust of the review was to assess the effectiveness of the new self-regulatory arrangements. the terms of reference of the review plainly contemplated the possibility that the voluntary arrangements might need to be put on a statutory basis. there was no suggestion that, if a statutory basis were needed, any constitutional difficulties would be likely to arise. it seemed to me that, in conducting the review, i was entitled to take, as my starting point, the report of the privacy committee (including the recommended statutory support which would be needed if the proposed new self-regulatory arrangements proved to be ineffective). after all, that report, as i have already pointed out, had been unanimous; it had been accepted, in principle, both by the government and by the opposition; and the government was well aware of my views about the fall5 the denning law journal back statutory support which would be needed, and yet had chosen to come back to me to undertake the review. i do not trouble you with the detail of the review. the main conclusions which i reached, on the effectiveness of press self-regulation, were these. first, the new press complaints commission was not an effective regulator of the press. secondly, it had not been set up in a way, and was not operating a code of practice, which enabled it to command not only press but also public confidence. thirdly, it did not, in my view, hold the balance fairly between the press and the individual. fourthly, it was not, in my view, the truly independent body which it should have been. finally, as constituted, it was, in essence, a body set up by the industry, and operating a code of practice devised by the industry and which was over-favourable to the industry. it was with regret that i had to reach these conclusions, and, having considered (and rejected) the possibility of modification, i recommended that the government should put press regulation on the statutory basis detailed in the report of the privacy committee. i also recommended that the criminal offences relating to physical intrusion and covert surveillance, which had been proposed by the privacy committee, should be enacted. i also recommended that the government should give further consideration to the introduction of a new tort of infringement of privacy. on 14 january 1993 the government published my review. the secretary of state for national heritage (mr peter brooke) said in parliament that the government accepted the case i had made for new criminal offences to deal with specified types of physical intrusion and covert surveillance; but the case i made was essentially no different in this respect from the recommendations which the committee had made some 18 months earlier, but which the government had thus far disregarded. the government also accepted my recommendations that further consideration should be given to introduction of a new tort of infringement of privacy. more significantly, the government also agreed with me that the press complaints commission, as then constituted, was not an effective regulator of the press, that it was not truly independent, and that its procedures were deficient. my recommendation that the government should not put press regulation on a statutory basis raised, so mr brooke said, separate and more difficult issues which needed to be carefully weighed. the government, he said, was conscious that action to make such a body statutory would be a step of some constitutional significance, departing from the traditional approach to press regulation in the united kingdom; and that in the light of those considerations, the government, he said, would be extremely reluctant to pursue that route. that reasoning, i have to say, and in the light of what had gone before, and which i have just outlined, struck me as curious. why should such statutory support be so significant a constitutional step that the 6 freedom of the press: freedom from the press government should be reluctant to introduce it? neither mr waddington nor mr hattersley appeared to have taken that view in 1990. the answer must surely depend on the likely effect of the proposed statutory support. if, of course, the likely effect would be to result in censorship and gagging of the press, and to prevent responsible investigative journalism so as to shield the wicked from exposure, that would indeed be a step of some constitutional significance. but if the change simply makes effective, by providing adequate sanctions, that which is presently ineffective, where is the "significant constitutional step"? and what is its vice? if the concept of press regulation is accepted by the press, as it surely must be (the press having set up the press complaints commission), then it must surely follow that it is effective regulation that is accepted. or is the press only prepared to accept press regulations so long as that regulation is ineffective? that would be a cynical view indeed. but, as the editor of one of our broadsheets once put it: "the people who own and run our popular press are driven by commercial imperatives that brook no interference." the statutory support which the privacy committee proposed in the event of the failure of the press complaints commission (and which i recommended in my review) was designed to make, and would have the likely effect of making, a positive contribution to the development of the highest standards of journalism. it would have enabled the press to operate freely and responsibly. it would have given it the backing which was needed, in a fiercely competitive market, to resist the wildest excesses. the committee's recommendations were designed to ensure, and would have the likely effect of ensuring, that privacy, which all agreed should be respected, was protected from unjustifiable intrusion, and protected by a body in which the public as well as the press had confidence. so much, then, for a summary of the position of the report of the committee and of my review. my review was, in fact, only one of several initiatives which were then being undertaken in respect of the press. i should now say something of the other initiatives, so that the two government-sponsored inquiries can be seen in a wider context. mr clive soley introduced a bill entitled freedom and responsibility of the press. that bill proposed the establishment of a body, to be known as the independent press authority, which would seek the presentation of news, by papers and periodicals, with due accuracy. the authority's proposed powers would have included the power to determine questions of factual inaccuracy, and the power to order an editor or publisher to publish a correction in the manner specified. mr soley's bill was given a second reading by a large majority. it had completed its committee stage, but it was nevertheless' 'talked out" at its report stage in march 1993, and so effectively became dead. although mr soley's concern and proposals were different from mine, his proposals like mine envisaged statutory support in the field of press regulation. he proposed a legally enforceable right to correction, and a statutory complaints authority to enforce that right. 7 the denning law journal there was another intiative which was being pursued at the same time. in october 1992 the national heritage select committee had announced that it would conduct an inquiry into privacy and media intrusion. its primary concern was to be with the privacy of private citizens, rather than public figures. that committee took evidence during the winter of 1992-93. its report was published in march 1993. the select committee expressly reached the significant conclusion (which i had also reached) that the press complaints commission, as then constituted, was not an effective regulator of the press. the committee recommended that a statutory press complaints tribunal should not be established (as i had recommended), but rather that there should be appointed an ombudsman with statutory powers to oversee the regulation of the media. the committee also recommended that certain types of intrusion should be made "civil offences" and other types criminal offences. thus the select committee, though differing from me about the means,' was also of the view that some form of statutory support was needed if press regulation were to be effective. it really goes a good deal further than that. although the select committee disagreed with my proposals and did so with some theatrical display, the committee's proposals do not differ very much, in their effect, from mine. a voluntary press commission, which has the support of a statutory ombudsman vested with statutory powers and sanctions, is a very different creature from a voluntary commission which has no such statutory support. and a commission, so supported, is not essentially different, in its effect, from a statutory complaints tribunal. the select committee's proposals, if anything, went further than mine. the conduct caught by their proposed criminal offences would have been wider; and the committee recommended the introduction of "civil offences". on 10 june 1993 the report of the select committee was debated in the house of commons. the secetary of state for national heritage said that governments should normally seek to respond to select committee reports within 2 months, and that he regretted that it had not been possible to do so on this occasion. he said that the political range and importance of the committee's recommendations made a response within the normal time-table impossible. but he assured the house that the government would do its best to ensure that its response was published before the summer recess. but, as i have already indicated, the 1993 summer recess came, and went, without any response having been made. there has been a further initiative which i should also mention. at the end of july 1993, the lord chancellor's department in response to my recommendations, published a consultation paper which sought views on a possible new civil remedy for infringement of privacy. perhaps we may look, for one moment, at what had been going on in the courts and elsewhere. in kaye v. robertson and another ([ 1991] f.s.r.62; the times, 21 march 1990) the case of the well-known actor who was photographed and interviewed in his hospital bed the court of appeal, though granting relief on the ground of malicious falsehood, denied any right at common law for the protection of individual privacy. 8 freedom of the press: freedom from the press leggatt, l.j., said this: "we do not need a first amendment to preserve the freedom of the press, but the abuse of that freedom can be ensured only by the enforcement of a right to privacy. this right has so long been disregarded here that it can be recognised now only by the legislature. especially since there is available in the united states a wealth of experience of the enforcement of this right both at common law and also under statute, it is to be hoped that the making good of this single shortcoming in our law will not be long delayed." in the later case concerning the photographs of the duchess of york, with mr john bryan, in august 1992, latham j. had refused an injunction to prevent publication of the photographs, on the ground that english law did not (as was well-known) protect personal privacy. lord lester of herne hill (house of lords, 24 may 1994) has said that the courts are still capable of developing common law remedies for wrongful infringement of privacy, and that they should be allowed to do so. but, as against that, it has been pointed out in the consultation paper that, even if this were possible, development by common law is uncertain both as to timing and as to content; and that it should be for parliament to legislate on privacy, and not for the courts to create a new right. in launching the consultation paper, the lord chancellor said this: "the time has come to ensure that the law protects the privacy of everyone. this is a matter which has been the subject of cross-party study for many years, and i think it right to offer concrete proposals for reform. the way ahead now is to provide a new remedy for individuals, with appropriate defences." the lord chancellor's consultation paper suggested, in particular, five things. first, that the right of privacy should now be recognised in law; secondly, that the existing law offered only limited protection for privacy; thirdly, that there should be a new civil remedy, allowing an individual to take a case to court if the infringement caused substantial distress; fourthly, that privacy should cover a person's health, personal communications and family and personal relationships; and finally, that the defences of consent, lawful authority, absolute or qualified privilege and public interest defence should, at the least, be available. but the consultation paper makes it plain that legal aid would not be made available; although "conditional fee arrangements" have been canvassed as a possible alternative, this must be a significant shortcoming. but, for my present purposes, it is again worth noting that the proposals made in the consultation paper again envisaged a form of statutory support for at least part of the ground covered by press regulation. in the result, those outside the press who have recently had to consider this difficult problem in any depth have all reached the conclusion that self-regulation, without more is not enough, and that some form of statutory support is needed. 9 the denning law journal meanwhile, the press complaints commission has, since january 1993, itself pursued a number of initiatives. i should mention those which strike me as being the most significant. on 24 february 1993, it was reported in the guardian that the commission expected to agree new measures designed to speed up the handling of complaints, and that an increase in the commission's budget was also likely to be agreed. in may 1993, the commission announced a series of measur:es designed to reinforce public confidence in the authority of the commission. membership of the commission and of its appointments commission would be altered so as to meet a perceived misconception regarding the commission's independence. and the commission not the industry would take final responsibility for the code of practice. in june 1993, the committee launched a new "help-line" service. its stated purpose was to assist members of the public who were concerned that the code of practice was likely to be breached in a press investigation relating to them. but the service aimed to provide no more than information about the publication of the news agency involved. it was a pale thing compared with the "hot line" which had been proposed by the old press council, and recommended by the privacy committee. in july 1993, the industry's code of practice was revised in a number of respects. first, explicit responsibility was placed on editors for the actions of their journalists. secondly, specific provision was made about the use of long-lens photography to take pictures of people on private property. thirdly, the appropriate manner of reporting of cases involving a sexual offence against a child was expanded and spelt out. finally, "public interest" exceptions were given definition, and so narrowed. in september 1993 the commission made the anticipated changes in its membership. in addition to the independent chairman, the commission, as newly constituted, was to comprise eight non-press members and seven editors. in january 1994, after the episode concerning the photographs of the princess of wales in the gym, the commission appointed one of its lay members, professor pinker, to act as the privacy commissioner, giving him powers to investigate urgent complaints about privacy, and to bring those complaints to the commission for decision under the code of practice. plainly the code has now been strengthened, and now comes closer to the recommendation of the privacy committee. but why, one may ask, was this not done in the first place? and, even so, has enough been done? and can the industry now deliver effective regulation? even the present arrangements fall short of the recommendations of the privacy committee. where stands the press itself in all of this? in matters affecting press regulation, the press tends to speak with one voice. in whatever way the press may present it, self-regulation appears to be the limit to which the press itself is prepared to go; and initiatives suggested by others which contemplate a modest degree of statutory support receive a uniformly hostile press reception, often bordering on paranoia. the press, as the messenger, is not usually at its most detached and objective when it comes to reporting stories critical of the press and of its own statutory arrangements. to freedom of the press: freedom from the press the fragility of the present arrangements was dramatically highlighted by the events surrounding the publication, in november 1993, by the sunday mirror (and then by the daily mirror) of the photographs taken of the princess of wales in the gym. so far as the sunday photographs were concerned, the chairman of the press complaints commission condemned on the sunday their publication, as a breach of the industry's code of practice, and said that he expected the mirror group of newsapers to avoid any further publication of the photographs. but on the following day the monday the daily mirror repeated publication of the gym photographs, and described the press complaints commission as a body which existed "to protect the liars amongst our disreputable rivals". it was not so much the publication of the sunday photographs that was significant, but rather the contempt shown for the commission on the following day. peace, at least outwardly, was restored later that week, but only after an apology had been made by the mirror group, and, more remarkably, after the chairman of the commission had withdrawn remarks made by him. if that is the way in which a significant player is prepared to treat publicly its own regulatory body, what hope is there for effective self-regulation? as the secretary of state was reported to have said at the time, the press complaints commission must make a "quantum leap" if self-regulation was to survive. finally, and more importantly, where now stands the government in all of this? i have so far taken the parliamentary story up to the debate which took place in june 1993. during the autumn of 1993 there were many reports of impending government activity, but, again, nothing happened. and the criminal justice and public order bill contained no relevant clauses. in february 1994, it was reported in the independent (14 february) that a comprehensive white paper on press regulation would be published in march, but that ministers had yet to agree on introducing a new civil law of privacy. it was said, however, that the cabinet committee on home affairs had given clearance to the secretary of state to proceed with his long-awaited white paper on the press. one of the more entertaining episodes in the press's campaign to maintain selfregulation, was the production, in february 1994, by the combined efforts of the association of british editors, the guild of editors, and the international press institute, of a paper called media freedom and media regulation. produced, no doubt, in the expectation that the government was indeed about to produce its long-awaited white paper, the press, by describing its paper as "an alternative white paper", at least demonstrated that the press assumed that the government was unlikely to propose what the press itself would have wished. as it is, we now have an "alternative white paper", but no original "white paper". in march 1994 it was reported in the press (the times, 12 march) that the prime minister had ordered a re-think on long-awaited government plans to tighten regulation of the press, and that a white paper, due to be published in march, had been torn up amid signs that the effort to lessen press intrusion had run into serious difficulties. 11 the denning law journal in april 1994 it was reported (the daily telegraph, 9 april) that the prime minister had intervened to give the press' 'one last chance" to introduce effective self-regulation over invasions of privacy. the report was in these terms. "after months of wrangling in whitehall over the content of a government white paper on privacy, mr major has decided that there should be a final review period in which newspapers can demonstrate a willingness to make self-regulation work. however, later this spring, ministers still intend to publish a long-awaited privacy white paper containing proposals for legislation. a draft privacy bill, accompanying it, is intended to act as a "sword of damocles" hanging over the media. mr major has decided to hold the bill in reserve to be introduced only if it becomes evident that the media have spurned the final opportunity to address growing concern over gross invasions of privacy. " no-one would suggest that the issues involved are anything other than complex which is presumably one reason, at least, why the government set up an inquiry in the first place. no-one can quarrel with a desire, on the part of the government, to get it right. but, assuming the report is accurate, "a final review period", "a final opportunity", and another "one last chance" all sound distinctly ominous: we have been there before. but why should there be such inordinate delay? there may sometimes be good sense in some delay; but undue delay may raise wider questions about political will and determination. as mr gerald kaufman, who was the chairman of the national heritage select committee, said at the end of the debate in pariament on 10 june 1993 "if no action is taken, the press will slide backwards in the belief that it has got through its crisis and that it is now all clear for it to return to some of the deeply objectionable ways from which, we hope, it is beginning to emerge." but that was now said over a year ago. it is for this reason that it now becomes important to consider the government response made in a debate in the house of lords in may. on 24 may, lord ackner, in committee, moved an amendment to the criminal justice and public order bill to insert a new clause directed to breaches of privacy with intent to obtain and publish information (as proposed by the privacy committee). earl ferrers, speaking on behalf of the government, said this. "there is now doubt that the behaviour of certain sections of the press, intruding into personal lives of both celebrities and ordinary members ofthe public, has, on occasion, been nothing less than deplorable. . . when any suggestion is made that there should be legislation to curtail such activities, there is a pathetic cry of 'don't touch the press'. if there is to be freedom of the press and there should be it is a privilege which carries a two-way responsibility. in any proposal for legislation which attempts to balance two rights, there are inevitably problems of principle and of definition which have to be resolved. it is essential that any proposals in this field should find the right balance between, 12 freedom of the press: freedom from the press on the one hand, the application of criminal and civil law , and, on the other hand, the freedom of the press and the rights of others, notably the right to privacy. any legal formulation in this difficult and sensitive area must be defined as clearly and unambiguously as possible if we are to ensure that it catches unacceptable intrusions but that it allows legitimate investigative work to continue. i shall not conceal from the committee that we have found it very difficult to reconcile those conflicting claims and to ensure the necessary precision in any legislative proposal. the various efforts which have been made in the past to control the excesses of the press behaviour are only too well known. the committee is aware of how much time has passed and the fact that the government have not yet made up their mind on these important questions. but i can assure the committee that the government have not been idle. it has become plain to us that the issues involved are very complex and sensitive, but they need to be considered as a whole in order to ensure that the balance is properly struck." so far, then, so good. but there then followed an indication that the whole matter would one day but not yet be thrown back into the public arena. the minister said this. "with an issue of such importance, it is essential that we get things right and that any proposal should be the subject of fully informed and national consideration . . . we propose to issue a white paper on the whole subject of press intrusion into privacy. in addition to dealing with the questions of self-regulation and a new civil tort, the white paper will also consider in some detail the various questions, both of practice and of principle, to which any extension of the criminal law in this area would give rise. this will give parliament and the public an opportunity for us to take a wider and fuller view." the minister had given no indication when the white paper would be published. lord ackner asked for this information; but the response was not encouraging. the minister said that the white paper would be produced when it was ready, but that it was unlikely to be immediate, because the government had yet to make up its mind. but if the government does not make up its mind, what will happen? lord renton enquired about the true nature of the government's intended paper. was it truly to be a white paper (as the minister had described it), which, as lord renton put it, was' 'rather conclusive and usually a prelude to legislation"? or was it, in truth, what is commonly spoken of as a "green paper" i.e. a consultative paper? the minister replied in these terms. "it is clear to say my noble friend lord renton and the committee that the government have not yet made up their mind and are considering the position. the object of a white paper is to enable the government to say 'there are our 13 the denning law journal thoughts', and find out what is the reaction of the public. that will be the purpose of the white paper. " in saying this, the minister was simply confirming what he had said earlier. but ifthe government's purpose is to engage in national and public consideration, in what are acknowledged to be very complex and sensitive issues, was there any real point in setting up the privacy committee in the first place? and who is likely to guide national and public consideration, if it be not the press? but if there is to be such consideration, why should there also be the delay? the real issue, i suspect, may be a very different one. it is this. does the government really have the political will and dertemination to do what it judges needs to be done? fu rther delay, followed one day by a paper which perhaps offers another" last chance", and which invites public consideration, followed possibly by yet another "last chance", may only serve to foster at least the thought that, notwithstanding all the recommendations which have been made, there is, in fact, no political will to do anything about it at all. as the 1994 summer recess approaches, with still no government repsonse, so too and perhaps you may say "thankfully" does the long vacation; and i leave all these thoughts to you for your peaceful vacation contemplation. 14 the challenges facing the law commission in the 1990s the right hon. lordjustice beldam* an early task assigned to me as newly arrived chairman of the law commission was to write the introduction for the forthcoming annual report for 1984/85.' that year had included the 20th anniversary of the law commission and provided the opportunity to reflect how far the commission had kept faith with the aims of its founders. it could not be denied that during the 20 years there had been many changes in the aspirations and in the staffing and methods of work of the commission. nevertheless it seemed to me, as i looked back over the achievements of past commissioners, that the commission had indeed kept faith by establishing and maintaining among informed opinion the reputation and status of an independent constitutional law reform body. it had done this through research, extensive consultation, the ability to harness specialised academic and professional opinion and, notwithstanding the occasional dissent, a capacity to agree on solutions which commanded the widest support. in this achievement members of the society of public teachers of law have played and are continuing to play an outstanding part. as commissioners, as independent consultants, as members of committees to which projects have been referred, as well as privately responding to the commission's working papers, members have made invaluable contributions to the cause oflaw reform and to the esteem in which the commission's work continues to be held. my recent arrival relieved me of any inhibitions which modesty might otherwise have imposed, but not unnaturally i felt pride and satisfaction when this appraisal appeared to command extensive if not universal support. it is entirely in the tradition of the commission that contrary views questioning this assessment of the commission and its achievements received equal if not more attention at the commission. in the following year, writing in the new law journal,2 mr alec samuels suggested that the law commission should be abolished and replaced by a department in the charge of a junior minister and a senior official under the lord • chairman, the law commission. this address was given at the annual conference of the society of public teachers of law, 1989. i. law com. no. 155. 2. "the law commission. do we really need it?", (1986) 136n.l.j. 747. 11 the denning law journal chancellor with responsibility for law reform. whilst not denying the commission's considerable achievements, it had really done only the "easy things" he believed. mr samuels has often been a proponent of the view that the law commission should have a higher profile and more "political clout" to enable it to overcome the inertia of government departments towards reforms generally and to the law commission's recommendations in particular. 3 the commission, he believed, needed as a chairman a forceful personality, a public presence, likely to make an impact in the corridors of power and fight the battles of the commission to secure implementation of its recommendations. early in the following year mr richard oerton, who was for many years an assistant solicitor with the commission and a most popular and respected member of its staff, published his book a lament for the law commission.4 he had seen the working of the commission from the inside and he cast his critical eye over the performance of successive chairmen, commissioners and parliamentary draughtsmen. it is quite understandable that someone who has devoted a substantial period of his life working with passionate intensity to achieve the goal of codification of the law of landlord and tenant should feel a sense of disillusion that the commission had failed to meet the challenges for which its founders created it. whether mr oerton would have felt the disillusion, and indeed pessimism, he expresses had parliament implementated the commission's reports on the obligations oflandlords and tenants5 on covenants restricting dispositions, alterations and change of user6 and on forfeiture,7 is at least doubtful; there can, however, be no doubt that any consideration ofthe challenges which face the law commission into the 1990sshould take full account of the serious points which mr samuels and mr oerton have made. mr oerton because he laments the passing of the law commission as, in his view, it was intended to be and mr samuels because he fears the ineffectual body which he believes it may become. in fact each of them has focused on contradictions in the position of the law commission which were clearly perceived at the time of its creation. astute civil servants in those departments most likely to be affected by the creation of an independent law reform agency8 raised questions about the extent of the commission's role and about its responsibilities. in the result, they were left unresolved so that they could be worked out pragmatically as time went on. much has already been written about these difficulties. at the colloquium which was held in 1986to mark the 20th anniversary of the founding of the law commission and of the faculty of laws at queen mary college many suggestions were put 3. "personal view: 20 years of law reform", (1985) 135n.l.j. 808. 4. richard oerton joined the law commission in 1972 and became an assistant solicitor in 1978. 5. law com. no. 67. 6. law com. no. 141. 7. law com. no. 142. 8. e.g. , the home office. 12 the challenges facing the law commission in the 1990s forward to overcome some of those which remain. 9 to continue to develop the role of an independent constitutional law reform body, while maintaining the quality and standard of its work, will i think present the commission with a continuing challenge into the 1990s. in some respects the altered aspirations of the commission and the changes in its methods of work have eased the difficulties perceived at the time of its creation. first and foremost of the difficulties over which argument took place was the question of the commission's independence. 10 was the commission to possess a power of initiative so that it could undertake of its own accord studies in branches of the law with which government departments might be intimately concerned? if so, a report recommending legislation which the department was unwilling to introduce could represent an embarrassing challenge to the minister concerned. there could be no question of a body such as the commission failing to publish its report. if, therefore, the commission was to be an independent body in the true sense of the term its activities should be confined to areas of the law which were not the responsibility of specific departments. such a view, however, conflicted with the aspiration that the law commission should have responsibility for all the law. the advocates of the idea of a law commission ii saw it as one of its prime functions to ensure that legislation introduced by government departments did not conflict with an overall plan for comprehensive law reform. the second objection raised to the creation of a law commission was of particular concern to the home office who were responsible for providing the staff and facilities for the criminal law revision committee. the home office was not only responsible for the criminal law and its administration but it was in a position to influence the subjects on which the committee worked and the terms in which they were referred to the committee. if the commission were to have responsibility for all the law, then the home office argued it could have an adverse affect on the responsibility of its ministers for the state of the law in the criminal courts. similarly, they argued, ministers responsible for the state of the law in their respective fields could also find that the commission was straying into their preserve. ironically such a view seems to have supposed that the recommendations of the law commission would in fact be enacted with little chance of debate or change being made during the process of legislation. ministers would in effect be bound to implement the recommendations of the commission even though they might not support the particular reforms. also discussed were the further difficulties posed by the legislative procedures of the house of commons. it was realised at once that comprehensive law reform might well produce a substantial demand on legislative time. consequently a need 9. for the papers presented see graham zellick (ed.), the law commission and law reform. london: sweet & maxwell (1988). 10. described by lord scarman as "considerable, but nottotal", jarreharel nehru memorial lecture 1979 but by mr samuels as "spurious", (1986) 136n.l.j. 808. ii. lord gardiner and professor andrew martin q.c. 13 the denning law journal was perceived to change the procedure of the house of commons to make the passage of law reform bills easier. at about this time the select committee on procedure of the house to consider the expediency of appointing a committee for the second reading of bills, so reducing the time required for proceedings of such bills in the house, was set up. in its reportl2 the committee considered ways in which the passage oflaw reform bills might be facilitated, and pointed out that the mere description of them as law reform bills did not necessarily mean that large questions of policy or questions likely to give rise to differences on party lines might not arise. thus the committee, contrary to some distinguished lawyers, appreciated that even law reform proposals which on the face of it appeared uncontroversial might give rise to political differences. the value of the special standing committee procedure of the house of commons, in considering law reform proposals, was emphasised by the attorney-general, sir patrick mayhew, when he spoke at the colloquium in 1986. he instanced the hearing of evidence by such a committee during the passage of the criminal attempts bill in 1981 and of the matrimonial and family provision bill, 1984, as examples of the way in which such a procedure can serve to still prejudice and alarm at commission proposals .13 at the time of its creation it was expected that one of the principal tasks of the law commission would be to codify whole branches of the law.14 obviously any code bill was likely to be a very substantial measure but, although concern was expressed at lack oflegislative time for law commission bills generally, there was no discussion in depth about the difficulty which would be presented by a bill which codified a whole branch of the law such as criminal law or the law of landlord and tenant. although it is already difficult to recapture the spirit of 1965, from contemporary records and debates and the aims of the commission's founders it is difficult to avoid the conclusion that in the mid-1960s law reform was seen as a desirable aim in itself. there was little or no discussion about the resources which would be needed for the commission nor about its overall cost. still less was there a discussion on whether a commission would be "cost effective". the need for a commission was clearly perceived and the immensity of the task which it was given to do (to take and keep all the law under review) ensured that in years to come there would be plenty of work to which it could turn its attention. implementation would surely follow the recommendations and if legislative time was a problem it would no doubt be somehow found. it is therefore not surprising that the commission for which mr oerton sounded his lament was a body which he perceived ought to be staffed by lawyers dedicated to reform, whose eyes were firmly on the coherence and structural elegance of the law, rather than on mere practical utility, who could make law reform their professional career rather as parliamentary draughtsmen might make a career of drafting parliamentary bills. 12. 1st report, feb. 1965. 13. the law commissian and law reform, supra n. 9. 14. see s. 3(i) law commissions act 1965. 14 the challenges facing the law commission in the 1990s by the 1980s,15however, a profound change had set in. public spending had reached an unacceptable level (it was said) and consequently economies were called for. control of public spending required that all projects needed to be justified and priorities established. all departments, including the lord chancellor's department, had to compete for a limited amount of funds. better use needed to be made of the skilled staff available. so it was that the staff inspection review which was carried out at the law commission in the early 1980s brought disillusion to mr oerton and i expect to a number of others. in a number of its major projects the commission had set itself challenges which it had been unable to meet. having abandoned its codification of the law of contract and of the law of landlord and tenant, the commission was still trying to produce a criminal code.16 at that stage the commission appeared as far as ever from concluding it. nevertheless the thoroughness and the quality of the commission's work was widely recognised. the commission might thus have seemed a serious candidate for economies in keeping with the new zeals and new ethos for public expenditure. the fact that the commission has survived, virtually in unaltered form, though with less ambitious aspirations and different methods of work, is in itself a tribute to the work of former members of the commission in meeting the challenges of the past. if in deciding on its programmes of work or in producing its recommendations the commission had been perceived as contributing little to the improvement of the law it would not have survived. nevertheless, as readers of our annual reports will know, the staff inspection report brought about a profound change in the way in which the commission was to undertake its work. five of the six senior solicitors in the government service were eventually withdrawn and the commission was expected to replace their expertise as and when required by commissioning work outside and by taking on additional research assistants. at the same time the commission, in order to make the best use of the financial resources available to it, had to cost its projects and to consider priorities. a number of projects which had been started several years earlier which were long and difficult remained to be completed. in addition the commission began to tum its attention to less ambitious projects. drawing on the work which it had previously done, it produced reports on particular aspects of the law of landlord and tenant and is continuing to do so. in the criminal law the commission continued systematically but steadily to work towards a criminal code. with the generous and outstanding assistance of the code team from the society of public teachers of law of professor smith, professor griew and professor dennis, completion of this important project became a reality. 17i view the final implementation of the criminal code as one of the major challenges facing the commission in the 1990s.no-one should underestimate the difficulties 15. its onset was already noted in 1979 by lord scarman. 16. law com. no. 56, 8th annua/ report, paras. 3 and 4. 17. law com. no. 143 and no. 177. 15 the denning law journal which will have to be faced and i shall return to them later. nevertheless publication of the code on aprill989 was among the greatest of the commission's achievements and it gave a significant boost to the morale of the commission. there are now many who believe that the enactment of the code would make a major contribution to simplification and rationalisation of the criminal law of this country. in the first annual report of the commission, under the subject of the future of law reform, the commission stated: "the most important lessons for the future learnt during the first year of the commission's existence are two: that haste is the enemy of sound law reform and that law reform must concern itself as much with the form, arrangement and procedures of the law as with its substance." my predecessor, lord justice gibson, in his lecture on the law commission's expressed the view that the commission would probably not wish for very much longer to carry out its duty of reviewing all the law by deciding what to do next within the existing programmes. it seemed to him likely that more resources would be applied to shorter projects which offered the prospect of useful reforms. some were already planned in the law of landlord and tenant. he saw the commission doing more of its work in response to government references, as it was then doing in contract law, and in providing assistance to departmental projects as the team led by brenda hoggett was then doing in preparing the review of child care law. there was no danger he felt of the commission ceasing to be the watchdog of all the law and dwindling into something resembling a law research division of a ministry of justice. he saw the problem as one of the best ways of allocating resources. the commission had, and should develop, the ability to examine, to organise and to prompt more in the way of reviewing the law and of projects of law reform than it could carry out by the use of its own permanent resources. the commission has actively pursued these ideas. indeed during lord justice gibson's time at the commission he, in conjunction with professor jolowicz, had already promoted an important seminar on civil procedure. this seminar, which was held in september 1985, stimulated widespread discussion which in due course led to.the civil justice review set up by the lord chancellor's department. in its recommendations the review suggested two topics which might be referred to the law commission. the first was class actions and the second the hearsay rule. i shall return to them later. during the past three years the commission has carried these ideas into practice. its criminal law team has prepared papers on a number of contemporary problems for presentation at seminars organised by the judicial studies board. it says a great deal for the foresight of mr brian davenport qc, 18. "the law commission", [1986] current legal problems, p.57. 16 the challenges facing the law commission in the 1990s whose term as commissioner responsible for the criminal law expired at the end of last year, that all of these studies have been of influence in their respective spheres in one way or another. the stimulation of discussion on topics of contemporary importancel9 and debate and the informing of opinion by accurate, thorough and detailed research both on their history and on the way in which the law has developed in other common law countries is, i believe, an important use of the commission's resources. whilst work of this kind is not contained in any programme item, nor has it been referred to the commission under section 3(l)(e), the promotion of reform of the law appears clearly from the law commissions act20 as a principal purpose for which it was set up. the commission has from its early days perceived that the encouragement of discussion on aspects of the law which appear outdated and in need of change is an important step in sounding public opinion. there are now 1,500 judges, full and part-time, who attend seminars of the judicial studies board. with first-hand experience of the difficulties currently presented by the procedure and practice in the criminal courts, they are an obvious source of advice on these projects. the commission recognised the value of this source of practical experience when it set up the consultation groups which considered the provisions of the draft criminal code. the papers presented at several recent judicial studies board seminars have been very well received and the commission in tum has received useful comments. quite apart from clarifying particular aspects of law and procedure, by undertaking studies and publishing papers of this kind the commission fulfils its duty to promote law reform by keeping interest alive and by encouraging many who perhaps otherwise would not make their views known to take part in the process of change. on the civil side of the judicial studies board too, trevor aldridge the commissioner responsible for property law has lectured on recent developments in the law of landlord and tenant. these initiatives not only stimulate the interest of the judiciary in changes in the law, they create awareness that the commission is as concerned to improve form and procedure in its practical day to day aspects. the reference received by the commission to consider the law of corroboration in criminal cases is a sign of this awareness and presents the commission with a new and stimulating challenge in the criminallaw.21 in addition to embarking on these smaller projects it seemed appropriate to review the progress which the commission had made with its programme items which represent the major part of its work. work which remained to be done could form the basis of a fourth programme of law reform which had been under discussion for some time. in addition the commission wished to add new projects 19. the team prepared papers on" sentencer as factfinder", "binding over in the crown court" and "challenge for cause". 20. section i(i) "for the purpose of promoting the reform of the law ... " 21. the reference was made by the lord chancellorunders. 31(e)ofthe law commissions act 1965. 17 the denning law journal upon which it hoped to work in the near future. the need for the lord chancellor to justify expenditure on the commission's projects meant that it was obviously desirable to discuss the programme with his officials. when the commission's first programme was being discussed lord gardner attended meetings with the commission and took part in the discussions. so we discussed our plans with the lord chancellor's officials. in these talks the form and purpose of a law commission programme became a significant issue. the duty of the commission to prepare and submit to the lord chancellor from time to time such programmes is a fundamental one. the commission cannot, of course, work on programme items until they have been approved by the lord chancellor but, as professor stephen cretney has said,22 two of the most important advantages of the programme technique are: i. that by producing a programme the commission not only makes public its views that the law on this subject is in need of simplification and reform, it also demonstrates a commitment that it will work on those items as and when its resources permit. 2. it confers a mandate on the commission to be involved in the work of reform of the law on that subject. in the course of these discussions the commission was aware of the change of ethos from 1965and of the need for realism. it seemed obvious that little purpose would be served by seeking approval for a fourth programme which contained many items of great scope on which the commission could neither begin work itself nor commission independent research for several years. lord gardner replying to the debate in the house of lords23 on the commission's first programme gave no help about the size or duration of a programme. he described the words "to prepare and submit ... from time to time programmes" as beautifully flexible and as capable of covering programmes of ten years duration or three months. it is of course always open to the lord chancellor or any other minister to refer specific questions of law reform to the commission under s.3(l)(e), and this suggests that it was intended that programmes should be submitted at regular but not necessarily equal intervals. after a space of fifteen years, i believe a further programme was overdue! as previous chairmen have said, in the overall plan of the commission's work there is a place for each type of project. however in addition to deciding the scope and object of a programme of law reform, a management plan of the commission's year to year work is needed to decide what resources are necessary and to enable the lord chancellor's department to convince the treasury that they should be provided. the resources will need to cover work not only on programme items and on references made to the commission, but also the work undertaken by the commission in keeping all 22. "the programmes milestones or millstones", the law commission and law reform, supra n. 9. 23. h.l.deb. 9th dec. 1965, vol. 467. 18 the challenges facing the law commission in the 19905 the law under review. consequently both must be realistically chosen. the need to justify the commissioners' projects and their priority in this way poses challenges for the commission, which was certainly not perceived at the time of its creation. nevertheless these challenges have arisen against a background which may enable the commission to fulfil more effectively its role as a watchdog of all the law. i mentioned the reluctance which some government departments originally expressed at the idea of accepting the commission's proposals or of working with the commission to achieve reform. it is no secret that recruitment oflawyers for government service has become increasingly difficult and that the shortage is now acutely felt. it is a shortage from which the commission itself is not entirely immune. one obvious way in which government departments could try to diminish the effect of this shortage would be to seek assistance from the commission whose duty it is to give advice and information under s.3(1)(e). of course the department would have to feel confident that the commission would produce advice and assistance of the calibre on which it has built its reputation and that it will do so on time. to build up this confidence the commission must gradually increase its connections with the government departments in question. an outstanding example of just how successful such co-operation can be may be gauged from the results of the work of professor hoggett's family law team with the department of health & social security and with the lord chancellor's officials in producing the children's bill currently before parliament. equally in the criminal law the commission has made an encouraging start in collaborating more closely with the home office in trying to ensure that the appropriate priority is accorded the projects undertaken. one of the fruits of this collaboration was law com. no. 180, "jurisdiction over offences of fraud and dishonesty with a foreign element", which resulted from a joint initiative between the commission and the home office and which incidentally also enabled the commission to do one of the difficult things which had been left undone in 1978 when the commission reported on the "territorial and extraterritorial extent of the criminal law" (law com. no. 91). in outlining the background to our fourth programme of law reform, i have tried to show that maintaining and developing the law commission's role as an independent constitutional law reform body is, in itself, no mean challenge. i would now like to mention some of the more specific challenges contained within the fourth programme which are likely to set the agenda at least for the early years of the 1990s. the criminal law to try to promote implementation of law commission proposals has not generally been seen (overtly at least) as part of the commission's function. of course our reports are couched (confidently, i hope) in persuasive terms seeking to convince government, or indeed in the absence of government a reforming 19 the denning law journal backbencher, ofthe virtues of our proposals. yet, as i have already pointed out, in s. 1(1) of the law commissions act promotion oflaw reform is the very rationale of the commission's existence. once a report had been delivered to the lord chancellor, the commission seemed powerless to prevent the contraction of what a former commissioner so graphically called "legislative pneumoconiosis".24 in his address to the law reform agencies conference in hobart in july 1981 the then chairman of the law commission, mr justice kerr, speaking on the political aspects of law reform in the united kingdom, said: "it is the necessary political will which we must create. but this can only be done by a long and wearisome process of persistent persuasion and pressure. " when the commission with the code team had to decide on the contents of a draft criminal code, the commission was in what i understand the americans to call "a no win situation". if the commission codified existing law with all its difficulties and inconsistencies in the face of the many reform proposals which had been produced during the last twenty years, it would have been said that there was no point in implementing a code in that form for it would have immediately been out-of-date. on the other hand, if the reform proposals were codified, some of which were controversial, implementation of the code would require substantial parliamentary time, so no government would be willing to implement it. i believe the commission was right to decide on the strategy adopted of codifying the proposals of responsible and distinguished bodies such as the butler committee25 and the criminal law revision committee. it seemed more likely that the difficulties raised by the second approach could be overcome than those of the first. in the result, therefore, the code included proposals on incapacity and mental disorder designed to give effect to the butler committee's proposals but modified in the light of further consultation. the provisions relating to offences against the person were based upon the recommendations of the 14th report of the criminal law revision committee26 and had been scrutinised by a small group of practitioners presided over by lord justice lawton under whose chairmanship the criminal law revision committee had produced its proposals. although the commission was well aware that some of the proposals of the 15th report of the clrc on sexual offences27 in 1974 might prove controversial, nevertheless it would have been quite inconsistent not to have included those provisions and 24. for examples of the concern of previous commissioners, see professor cretney "the politics of law reform a view from the inside" and dr peter north "law reform processes and problems", 101l.q.r. 358. 25. report 1975, cmnd. 6244. 26. 1980 cmnd. 7844. 27. 1984 cmnd. 9213. 20 the challenges facing the law commission in the 19905 those of the 16th and 17th reports28 on the same topics. when the criminal code was published on 17th april 1989 the reactions were almost universally favourable but perhaps predictably the provisions of the 15th report of the criminal law revision committee concerning buggery and incest did prompt criticism and eventually lead to a home office spokesman in answer to a parliamentary question confirming that the government had no intention of implementing such recommendations. at the time of the decision to include in the code the proposals of the clrc's 14th report on offences against the person, the commission did not know that a select committee of the house of lords would shortly be set up to consider the law of murder and sentences of life imprisonment. the report of the committee presided over by lord nathan was published on 18th september 1989. the completion of the criminal code and its publication in april this year presents the commission with an entirely new type of challenge in the years ahead. that is to consider ways in which to promote the code and ensure that it passes onto the statute book. it is important that the impetus which the project has gained should not be lost. many practitioners are convinced that it represents the way forward in the criminal law but gravely underrate the difficulties of implementation. how should we proceed? one way of reducing opposition to the code would be to produce a supplementary report on those controversial subjects. further consultation would be needed and proposals would be presented in bills drafted in a style which is consistent with the scheme of the code. if these bills were enacted, the prospects for the code would be enhanced for it is noticeable that where there is recent legislation based upon reports of the commission, as for example in criminal damage29 and public order offences,3o no criticism has been directed at the code as far as i am aware. at the same time, i believe the commission must lose no opportunity of stimulating discussion on the best way to secure the code's implementation. to this end, i hope the commission will encourage and support seminars and discussions organised for this purpose. one such seminar is planned for january 1990 in cambridge and i am sure others will follow. the promotion of the code will in itself be a major challenge but there are other challenges facing the commission in the criminal law which by themselves could be regarded as formidable. two projects which have occupied the commission for a considerable time are conspiracy to defraud and binding over to keep the peace. no-one who has worked on the subject of conspiracy to defraud would underestimate the difficulties facing the commission. should the principle on which the criminal law act 1977 was founded, that acts lawfully done by one person should not become unlawful merely because two or more persons agree that they shall be done, prevail over the arguments of convenience for retaining an 28. 1984 cmnd. 9329, 1985 cmnd. 9688. 29. law com. 29. 30. law com. 123. 21 the denning law journal offence which enables prosecutors to present the real scope of a defendant's activities in more readily understandable form than an indictment co'lcaining 61 or 62 counts; whether the retention of such an offence infringes .he underlying principle that every accused person is entitled to know precisely the offence charged against him and if the argument of principle prevails, whether a general fraud offence can be created which is consistent with the continued existence of the present theft acts offences. these challenges are not new. they have already defied previous efforts of the commission, the clrc and the roskill committee.31 an acceptable solution will, i am sure, be found. binding over too, a question referred to the commission in november 1980, presents an equally difficult challenge. notwithstanding the praise lavished by blackstone on preventive justice,32 very real questions are now asked about the legitimacy of the process in modern times of binding over to keep the peace and be of good behaviour. it has, however, undoubted utility in some situations. it is economical in court time and is widely supported by magistrates and judges alike. as will be seen from item 5 of our fourth programme, the commission expects shortly to begin work on a project on the preliminary offence of aiding and encouraging crime. work on corroboration has already begun. all these projects amount to a programme of work in the criminal law as demanding as any the commission has ever undertaken in this field. family law there are few subjects which have presented the commission with greater or more sustained challenge during its existence than family law. i would approach any forecast of future challenges with great diffidence in any case but do so particularly in the presence of professor hoggen who in addressing the solicitors' family law association annual conference earlier this year pointed out the courage that is needed to predict the future course of any developments in family law. in her address,33 professor hoggen drew attention to the pace of social change which had made it necessary for the commission to keep family law under continuing review. the family law team at the commission has been particularly successful in keeping pace with social change. its projects continue to reflect the changes in social behaviour and the climate of opinion which follows. professor hoggett highlighted the radical changes which have been brought about in the law relating to children by the children bill. the success of the co-operation between the family law team at the commission and government agencies and departments is, as i have said, one of the most encouraging features of our current 31. 1986, fraud trials committee report. 32. bk iv, ch. xviii, 251. 33. "family law into the 19905", (1989) 19family law 177. 22 http://www.ingentaconnect.com/content/external-references?article=0014-7281(1989)19l.177[aid=7381726] http://www.ingentaconnect.com/content/external-references?article=0014-7281(1989)19l.177[aid=7381726] the challenges facing the law commission in the 19905 programme. professor hoggett speculated on the results which might be achieved if a similarly comprehensive review of both substantive and procedural aspects of family law, in particular in the aspects of domestic violence and of occupation of the family home as it applies to adults, could be undertaken. if the same remedies could be available in all courts together with the ability to transfer where appropriate from one court to another upon the model of the children bill, a great improvement would occur in this field oflaw. publication by the commission in may last year of the discussion paper on the ground for divorce34 was intended to confront the problem that many believed the operation of the present law of divorce falls short of the objectives of reducing the conflict and bitterness which so often is involved. as we enter the 1990s, the commission will be considering whether to propose changes in the law and whet~er the option discussed of divorce after a process of transition can be developed into an acceptable proposal. the subject of item 9 of our fourth programme, the law relating to mentally incapacitated adults, is a topic of increasing significance in a "greying" population. the commission hopes that in undertaking the project it will be assisted by representatives of relevant government departments and other agencies who have wide practical experience and insight into the difficulties which will have to be taken. the common law the report of the review body of civil justice considered two recommendations35 that the lord chancellor should commission an enquiry by a law reform agency. the first suggested an enquiry into the hearsay rule and the current machinery for rendering it admissible; the second, that a study should be undertaken by a law reform agency of the case for extending the availability of representative or class actions or establishing other procedures to be available in cases in which there were large numbers oflitigants whose claims or defences have a common basis. in response the lord chancellor has enquired whether the law commission would be prepared to assist in both these initiatives. the commission has tentatively agreed to do so. a number of other organisations are interested and involved, the supreme court rules committee, the lord chancellor's department, as well as outside organisations such as the consumer association. a report on the hearsay rule, whilst challenging, would not take the commission into new territory. in its report on the parol evidence rule the commission demonstrated the value of close analytical attention to evidential rules.36 the very complicated structure which the rules relating to hearsay evidence have now assumed, could well benefit from a similar analysis. class actions, on the other hand, would not only take the commission into entirely new territory. although it is not difficult to think of some fairly 34. "facing the future", law com. no. 170. 35. nos. 26 and 27. 36. law com. 154. 23 the denning law journal straightforward alternatives to the existing rules which would give the court greater control over multiple litigation, recent cases37 have demonstrated how easily conflicts can arise between parties appearing to have similar interests and that there are fundamental difficulties involved in taking the conduct of an action out of the control of the individual plaintiff or defendant. to secure the full benefits of a class action procedure, however, the aim must surely be to try to ensure that one action, and one action only, should be brought to decide the various issues arising from the circumstances giving rise to the common questions of law or fact between the parties. the concept of a class action is one largely borrowed from the american courts where it has not been wholly successful. the procedures which have been developed to deal with cases in which there are many plaintiffs who have suffered as a result of a single disaster have run up against the difficulty of ensuring that on the one hand the number of separate proceedings is reduced as far as possible and on the other that individuals are not deprived of a right of action which is their own property. this has led the courts to put in place complicated certification procedures and the "opt in" or "opt out" process of trying to secure that no person potentially affected by the outcome of the action is unfairly bound by the result. how to resolve the difficult question of substituting class rights for personal rights and how to establish satisfactory rules of procedure to protect the position of individual plaintiffs is in itselflikely to be a substantial challenge. if in addition the commission had to consider the kind of consumer class action for which the consumer council is pressing,38 the difficulties would be even more far reaching. 39 when, in the article in the m adem law review to which i have referred, mr alec samuels stated that the law commission had only really done the easy things, he was doing less than justice to the past work of the commission. ifhe had said that in the course of undertaking a number of difficult projects the commission had left undone some of the difficult things which it might have done, this would, i think, have been a more accurate and acceptable statement. a number of these difficult things have been retained in the fourth programme. item 4 of the law commission's first programme concerned the civil liability for dangerous things and activities. the commission recommended that an examination of the basic principles should be undertaken with a view to their clarification, simplification and unification. however in september 197040 the commission confessed it was unable to complete its work on this item although it had reached the clear conclusion on the work which it had done that the law relating to strict liability, including liability for the fault of an independent contractor was complex, uncertain and inconsistent in principle. because it had been unable to include an 37.e.g.,daviesv.elililley&co. [1987] 1 w.l.r.1l36. 38. "group actionslearning from opren", oct. 1988. 39. daar v. yellow cabs co. 196767 col. 2d 695;re hotel telephone charges 500 f 2d 86. 40. in law com. 32. 24 the challenges facing the law commission in the 1990s investigation into the principles ofliability governing accidents involving personal injury the commission felt it could not confine its conclusions to accidents to property and so reported without making recommendations. nearly twenty years later the debate about the basis of liability for injury and damage continues unabated. the trend seems now more firmly set towards the view that such liability should be borne by those who are undertaking the activity concerned and not by those who are injured or suffer loss. the rationalisation of the rules relating to different activities such as the storage of gas or oil products, the conduction of electricity, the escape of fire and water, would hardly seem beyond the scope of the commission though it would undoubtedly present it with a considerable challenge to arrive at a solution which will be acceptable to such interested parties as insurers, contractors, employers and government departments. the complexity of many modern processes and the apparent inevitability of disasters causing injury and extensive damage suggest that the commission should consider this question as soon as its resources allow. when the commission reported on contribution under item 1 of its first programme,41 it made no recommendations to answer the question whether contributory negligence should be a defence in an action for damages for breach of contract because, it said, it would call for a deeper study than could conveniently be given to it in the paper on contribution. it is a question which has continued to trouble litigants and to give rise to a significant number of cases in the law reports, as well as conflicting decisions.42 the commission was asked to reconsider this question in 1987.43 at that time the commission did not have the resources available to take the matter further, though a preliminary paper was prepared. the advent of a commissioner with special responsibility for common law subjects has meant that this matter can be reconsidered and i have no doubt that recommendations will be made before the end of 1991. hardly a day goes by without there being some reference to the swift approach of 1992, though it might be more appropriate to refer to 1993. progress towards a single european market will undoubtedly give added impetus to harmonising the laws of member states. over the past twenty-five years there have been other initiatives directed to unifying the law of international sale of goods and the formation of contracts for sale. more recently the vienna convention on international sales law was opened for signature in 1981 and became effective on 1st january 1988. the government is currently considering whether to ratify the convention and it seems most likely that it will do so. after the law commission had decided to suspend work on the production of a contract code,44 it decided to publish a series of working papers on particular aspects of the law of contract. within a very short period the commission had published a working paper on 41. law com. 79. 42. see vesta v.butcher [1988] 3 w.l.r. 565. 43. by lesley anderson and andrew bell of manchester university. 44. the lord chancellor so announced in the house of lords on 9th july 1973. 25 the denning law journal firm offers.45 as long ago as 1937 the law revision committee had reported that the law on this subject was unsatisfactory and often operated unfairly. countries based on the civil law generally regarded an offer as irrevocable either for the period of time indicated for its acceptance or for a reasonable time and broadly speaking the vienna convention adopts this position. increasing trade with our european partners will inevitably lead to more and more contracts for the international sale of goods being based on the convention and it is therefore desirable that the law on this subject should be re-examined with a view to its simplification and if possible harmonisation with those other systems. it would clearly become unacceptable to have different rules for contracts for sale of goods to a buyer in the hague and a buyer in birmingham. over 100 years ago, mellish lj asked rhetorically whether the law is right or wrong in saying that a person who has given to another a certain time within which to accept an offer is not bound by that promise to give that time.46 the time has surely come to give him an answer! since 193747 reform has been proposed to the rule that a person not a party to a contract could not sue upon it even though there were express provisions contained in the contract for his benefit. this problem still awaits solution, despite calls in the court of appeal and in the house of lords for legislative reform.48 when the commission decided to suspend work on its contract code in 1973, no further work was done on the question of third party rights in contract. the time now appears to be ripe to meet the challenge posed by this difficult problem. conclusion in this review of the challenges facing the law commission in the 1990s i began with the assertion that one of the commission's principle achievements was the establishment of its reputation as an independent, constitutional, law reform body whose work was held in the highest esteem. nobody would suggest that to maintain that reputation for independence, integrity of thought, scholarship and thoroughness in meeting the individual challenges of the kind i have referred to would be an easy task but i believe with the continued support and encouragement of the society of public teachers of law, inter alia, and with the talent that the commission continues to command it will meet and conquer those challenges as it has met and overcome the equally difficult challenges of the past. 45. law com. 60. 46. seedickinson v. dodds (1876) 2 ch. d. 463. 47. see 6th interim report, law revision committee. 48. dillon lj inforster v.silvermere golf &equestrian centre (1981) 125s.]. 397;wooden investment development ltd. v. wimpey [1980] i all e.r. 571, lord salmon, lord keith and lord scarman. 26 a new framework for education in schools and the link with judicial review jonathan robinson* widespread interest in the law of education as it affects state.-maintained schools is rapidly developing for two reasons. first, a political and controversial 'freemarket' philosophy underlies both recent and proposed legislation. the aims are to give power to parents and substantial independence to governing bodies of schools, while reducing the powers of the local education authority (lea), changing the role of the latter from a 'provider' to that of an 'enabler', 1 with the strong possibility of the eventual demise of leas. the government's perspective is clear from the concluding chapter of its white paper choice and diversity a new framework for schools (the' 1992white paper'), 2 which describes the proposals for legislation as " ... the final stages of a great transformation in education which will take at least a decade to work through: a child tested at the age of7 this year will not be taking [the general certificate of secondary education] until 2001."3 these proposals purport to be given effect in the education bill 1992 (the' 1992 bill'). secondly, the creation of an entirely new legislative framework, starting with the education act 1980, has led to a pronounced increase in the number of applications for judicial review, a trend which has been encouraged by the fact that a minor can be granted legal aid in his or her own right without reference to parental means. 4 by contrast) a shortage of barristers and solicitors specialising in this area oflaw is a matter of concern but hardly surprising. in order to understand the legislation (especially subordinate) and the extensive flow of departmental circulars) a legal adviser must be familiar with teaching and administrative practice and the relationships between the secretary of state and the department for education * senior lecturer in law, university of buckingham and a consultant solicitor. this article is based on a paper which wasgiven to the education law association at the institute of education, london on november 30, 1992. 1. the structure of local governmem in england (des, april 1991), para. 19. 2. cm. 2021,1992. 3. ibid., ch. 15, para. l. 4. civil legal aid (general) regulations 1989, reg. 16. 175 the denning law journal (dfe),5 the lea, school governors, teachers, pupils and parents. this article aims to demonstrate the extent to which a relatively new specialism is influencing the development of administrative law in the context of education in schools in england and wales and in particular the development of judicial review as a remedy in that context. the relevant legislation is considered as succinctly as accuracy permits, whereas the many issues (for example, the curriculum; financial matters; the roles of governing bodies, leas and the secretary of state; admissions and exclusions; children's special educational needs; religious education) merit detailed examination. the 1992 white paper is referred to as a source to explain current reform of the law of education in schools, as is the 1992 bill. the final terms of the latter remain liable to substantial amendment, not least as to detail by the government (probably as the bill passes through the house of lords). even prior to publication of the bill it was reported that conservative education chairmen from both towns and counties were seeking major concessions from the secretary of state, 6 the general duty of the lea section 7 of the education act 1944(the '1944 act') requires the statutory system of public education to be organised in three progressive stages primary, secondary and further education7 and imposes a duty on the lea, so far its powers extend " ... to contribute towards the spiritual, moral, mental and physical development of the community by securing that efficient education throughout those stages shall be available to meet the needs of the population of their area." the lea's duty is more specifically set out in section 8(1), which requires leas to secure provision of primary and secondary schools for its area ", , , sufficient in number, character and equipment to afford for all pupils opportunities for education offering such variety of instruction and training as may be desirable in view of their different ages, abilities and aptitudes, and of the different periods for which they may be expected to remain at school, including practical instruction and training appropriate to their respective needs." there is also a duty to have regard inter alia to the need to secure that special educational provision is made for children who have special educational needs under the education act 1981. accordingly, the lea maintains county schools (which are attended by approximately 75% of pupils in the state-maintained sector), special schools for children with special educational needs and voluntary schools (which usually have a denominational foundation). the education reform act 1988introduced grant5. formerly the department of education & science (des). 6. see, e.g., education, vol. 180 no. 13, pp. 241 et seq.. 7. city technology colleges and colleges for the technology of the arts are not 'maintained' education reform act 1988, s. 105. 176 framework for education in schools linked with judicial review maintained (gm) schools, which are outside lea control and receive a grant from the dfe, equivalent to the sum which they would have received from the lea, plus an addition to cover the services which are not provided by the lea.8 section 8 does not, however, impose an absolute duty on the lea. in r. v. surrey county council education commiuee, ex parle h,9 slade lj in the court of appeal approved the proposition that " ... there is no question of parliament having placed the local authority under an obligation to provide a child with the best possible education. there is no duty on the authority to provide such a utopian system, or to educate him or her to his or her maximum potential." the section has also been said only to impose a 'target' duty, with the effect that where an lea fails without any fault on its part to comply for a limited period with the standard set by section 8 (for example, due to a shortage of teachers), it is not automatically in breach of the section.lo on the other hand, the court of appeal in r. v. birmingham city council, ex parte equal opportunities commission (no. 2)11 held that the lea, in performing its duty under the 1944act, was also under a duty by virtue of section 23(1) of the sex discrimination act 1975not to discriminate on the ground of sex. while there is no unlawful sexual discrimination in the provision of places for boys and girls in selective secondary schools, the lea when securing that sufficient schools are available for providing secondary education is obliged to take account of places which are available free. neill lj, giving the judgment of the court, stated that the relevant 'pool' of free places certainly included gm schools. that judgment also emphasised that the sex discrimination act 1975 and comparable legislation in the field of race relationsl2 required close examination when the duties and obligations of bodies responsible for the provision of public sector education were being formulated. the court commented on the need for future legislation inter alia to enable the elimination of discrimination to take place in accordance with a suitable and sensible timescale. by pointing to disparities which will be likely to vary from year to year and which will also be due to factors over which the authorities cannot possibly exercise control, the court has drawn attention to the dilemma which leas face at a time when the number of gm schools is increasing. a further element of flexibility when assessing the performance by leas of their statutory duty was suggested when the court observed that it might therefore 8. education reform act 1988, ss. 52 and 79. the secretary of state has power under s. 81(i)and reg. 24 of the education (grant-maintained schools) (finance) regulations 1992(5.1. 1992/55) to recoup the maintenance grant from the lea. 9. (1985) 83 l.g.r. 219 (c.a.). 10. per woolflj inr. v./nner london education a uthon'ty, exparuali(1990) the times, february 21 (q.b.d.). see also meade v. london borough ofharingey [1979] 2 alle.r. 1016(c.a.) per eveleigh lj at p. 1027as to the necessity in a state of emergency (a just and reasonable excuse) to close schools for a while in order to achieve the end of making education available in accordance with the statutory duty. ii. (1992) the times, october 27 (c.a.). 12. see note 91, infra. 177 the denning law journal be right to provide that unlawful discrimination could only be proved if over a period a pattern of discrimination could be established. leas and a funding agency for schools the government intends to create a funding agency for schools (the 'fas'), sharing with leas and ultimately taking over the duty to provide sufficient secondary and primary school places in the area when 75% of secondary (or primary) pupils in the lea are in gm schools;l] to " ... ease the transition to grant-maintained status" (i.e., encourage schools to opt for gm status);14 and, in the course of a move towards unitary local authorities, to see leas increasingly as 'enablers' (securing provision for services) rather than 'providers' of services. is it will be interesting to see whether pressure from leas and other bodies for the entry point for the f as to be raised to a minimum of 50 per cent, or (as proposed, for example, by the national association of head teachers in their response to the white paper)16 for there to be a single changeover point transferring responsibility for the provision of school places to the f as at that level, results in any change to the current proposal. 17 1980-1992:the scheme of the legislation the education act 1980 although wide-ranging in its reforms, 18it is arguable that for current purposes the most significant provisions of the education act 1980 (the '1980 act') are contained in sections 6 to 9 and schedule 2, enabling parents to express a preference for a school and providing for appeals against a decision on the admission of a child to a school. the 1980 act uses the word "preference", whereas recently the word "choice" has been used (arguably for political purposes), both in the parent's charterl9 and the education (schools) act 1992.20 it signalled the 'market' approach by the conservative government, in which parents were destined to playa significant role, in the first instance by promoting competition between schools by the exercise of a 'preference'. chapter 5 of the 1992 white paper envisages an increasing responsibility at school level for arranging school admissions. gm schools and leas will be 13. education bill 1992, part i. 14. cm. 2021, 1992, ch. 7, pp. 33 et seq.. 15. ibid., ch. 6, paras. 2, 3 and 5. 16.national association of head teachers' response to the secretary of state's white paper 'choice and diversity', september 1992, ch. 3, para. 9. 17. education bill 1992, cl.7(4) and sch. 2. 18. for example, school government; admissions to schools; school anendance orders; establishment and alteration of schools; assisted places at independent schools; school meals; nursery education. 19. 'the right to choose' is emphasised at pp. 8 and 9, although the parent's charter later states (correctly) that" ... you have the right to say which school you prefer" (des emphasis). 20. s.l6(3) see n. 58 infra. 178 framework for education in schools linked with judicial review expected to consider whether joint arrangements to co-ordinate admissions would help reduce delay and uncertainty for parents, but leas will continue to have final responsibility to ensure that all children attend school or are otherwise suitablyeducated.21 the education act 1981 the education act 1981 (the' 1981 act') implemented the central recommendation in the report of the warnock committee in 1978 (special educational needs),22 with the result that instead of defined categories of 'handicap', children have "special educational needs" (sen)23if they have a "learning difficulty"24 which calls for "special educational provision"25 to be made for them.26 at the heart of the 1981 act is the object that children, including those in gm schools,27who have special educational needs shall receive a suitable education, sofar as possible in an ordinary school (the policy of integration). 28for children with special educational needs assessed under section 5 of the 1981 act and for whom the lea are of the opinion that they should determine the special educational provision that should be made, the lea must make and maintain a statement of those needs under section 7 and arrange the special educational provision specified in the statement, unless a parent has made suitable arrangements. there are rights of appeal under section 8 to an appeal committee (which has only limited powers) and to the secretary of state. according to paragraph 15of des circular 22/89, since the implementation of the 1981 act attention has tended to focus on the two per cent of the school population who have statements under section 7, in some areas drawing attention away from the larger group, for whom none the less leas and school governors have duties under the act. in response to widespread concern as to the failure by leas fully to implement the 1981 act (that failure being expressed cogently by the audit commission)29 and after consultation,30 the government has responded by proposing to repeal and re-enact the 1981 act almost entirely.31 clauses 143-145 of the 1992 bill reflect the policy of integration of children with learning difficulties in ordinary schools so far as possible. leas will retain their responsibilities for assessments 21. education act 1944,55.7 and 8, read with the education bill 1992, c1.7. 22. cmnd. 7212, 1978. 23. education act 1981,5.1(1) (emphasis added). 24. ibid., 5.1 (2) 25. ibid., 5.1 (3) 26. the warnock report estimated that up to 20%of school children would have a special educational need requiring some additional provision at some stage during their school life. 27. education reform act 1988, s.100. 28. education act 1981, s. 2(2). 29. geuing in on the a ct provision for pupils with special educational needs: the national picture, a joint report by the audit commission and hm inspectorate of schools (hmso, 1992). 30. special educational needs access to the system (dfe, 15 july 1992). 31. education bill 1992, part iii and schs. 8 and 9. 179 the denning law journal and statements under the 1981 act.32 the secretary of state shall issue, and may from time to time revise, a code of practice giving practical guidance in respect of the discharge by leas of their functions under this part of the proposed act.33 among the more significant reforms, parents will have the right to express a preference for a particular ordinary or special maintained school for their child;34 and special educational needs tribunals will be established to determine all appeals.35 none the less, there are well-informed reservations as to whether the current proposals for reform of the 1981 act are sufficient,36 not least in respect of special educational provision for the estimated 18 per cent of non-statemented children, the absence oflegislation as to what information should be specified in a statement, and the practical operation of regional tribunals. the education (no.2) act 1986 the education (no.2) act 1986 (the '1986 act') is primarily concerned with school government and the composition of the governing bodies of schools. section 1 requires every school to have an instrument of government (its constitution) and articles of association (regulating the conduct of the school). the 1986 act marks a pronounced change in the roles and rights of governors, the lea and parents respectively. parent and lea governors are given equal representation with lea,31 and the theme of accountability is emphasised by the requirement that governors shall report annually to parents38 and hold an annual meeting with parents.39 links with the local business community are emphasised by virtue of the provisions as to co-opted governors under section 6. the lea's control over the curriculum is diluted, first by section 18, under which the governing body can determine how the lea's secular curriculum shall be modified to meet the particular needs of a school, and secondly by provisions inter alia to secure balanced treatment of political issues40 and to ensure that sex education shall, so far as reasonably practicable, be " ... given in such a manner as to encourage ... pupils to have due regard to moral considerations and the value of family life. "41 the issue of discipline is addressed (providing for exclusion and reinstatement of pupils and appeals).42 under section 42, the governors have control of the use of school premises 32. ibid., d. 147. 33. ibid., ds. 140 and 141. 34. ibid., d. 149 and sch. 9, paras. 3 and 4. 35. ibid., ds. 150-154. 36. e.g.,p~tting righr rhe 1981 educarionacr: eighreenfurrher amendmenrs by the independent panel for special education advice (ipsea september 1992). 37. education (no.2) act 1986, s. 3(2)-(5); s. 4(2). 38. ibid., s. 30. 39. ibid., s. 31. 40. ibid., s. 45. 41. ibid., s. 46. 42. ibid., ss. 22-28. 180 framework for education in schools linked with judicial review outside school hours (subjectto provisos). in general terms the 1986 act as a whole was the precursor to the major reforms introduced two years later. the education reform act 1988 although the education reform act 1988 (the '1988 act') effects fundamental. reforms, these are in a sense developments based on the foundations laid by the previous legislation, relatively little of which is repealed or amended. part i of the 1988 act legislates for schools (whereas part ii deals with higher and further education, which are not within the scope of this article). the three substantial innovations are: (i) the introduction of a national curriculum; (ii) delegation of responsibility to schools for their budgets; and (iii) provision for schools to acquire grant-maintained (gm) status. the national curriculum was introduced by chapter i of part i of the 1988 act, which also provides for the assessment and testing of pupils in maintained schools against attainment targets at ages 7, 11, 14 and 16. chapters ii and iii provide for admission of pupils up to the limit of a school's capacity and for delegation of a school's 'budget share', implementing local management of schools (lms) by governing bodies and empowering them to appoint and dismiss staff from their school. the method for acquiring and the consequences of gm status for schools, funded by a grant from the secretary of state,43is dealt with under chapter iv of part i. the procedure requires two resolutions by the governors and ballot(s) of the parents, and publication of the proposal for the acquisition of gm status, in accordance with sections 60 to 63 of the 1988 act. the 1988 act also provides, inler alia, for the powers and conduct of the governing body, transfer of property and staff, finance, admissions, religious education, control over alteration and change of site, discontinuance, winding up and disposal of property. city technology colleges and colleges for the technology of the arts may be established under part i, chapter v, and under section 105 the secretary of state may contribute towards their establishment and running. the 1992 white paper made it clear that the government intended to increase the number of gm schools44and to require leas to increase delegation of their budgets to other schools under lms.45a single new body, the school curriculum and assessment authority, will replace and combine the functions of the national curriculum council and the schools examination council.46it appears that to a considerable extent the government is relying upon schools to opt for gm status, whereas the credibility of that policy has been questioned with reference to resources. on the one hand, it is said that gm status must confer a financial 43. education reform act 1988, s. 52. 44. ch. 7, pp. 33 er seq •. 45. ch. 6, para. 3. 46. education bill 1992, cis. 214-218, with provision for wales under cis. 219-223. 181 the denning law journal benefit, because the political imperative is to see the drive for gm status to succeed;47on the other hand, funding is likelyto be constrained across the board in the current economic climate, a situation which is not· made easier for schools when they attempt to assess the advantages of gm status and are presented with differing sets of figures from the dfe and the chartered institute of public finance and accountancy. 48part ii of the 1992 bill repeals and substantially re-enacts the provisions of the 1988act relating to gm schools (and in particular chapter iv of part i of the 1988 act), but with a significant change contained in clause 17 of the 1992 bill, which is designed to facilitate a vote by parents as to whether or not a school should apply for gm status by limiting the statutory procedure to one (rather than two) prior resolutions by that school's governors. the education (schools) act 1992 the purpose of the education (schools) act 1992 (the '1992 act') was to revolutionise the method of inspection of schools and to provide a standard against which to measure their performance. inspection of schools the present regional structure will be radically changed in the case of secondary schools with effect from september 1993 and primary and special schools from september 1994. under the 1992 act, chiefinspectors (hmci) and inspectors of schools (hmi) are appointed by order in council for england and wales respectively,49administered by the office for standards in education (ofsted). the general duties of hmci are to keep the secretary of state informed as to the quality of education and the educational standards achieved in schools; whether financial resources made available to schools are managed efficiently; and the spiritual, moral, social and cultural development of pupils at schoo1.50 they also have, inter alia, advisory functions and specific duties to set up and maintain a register of inspectors; to give guidance to hmi and review the system of inspecting schools; and to promote efficiency of inspections by encouraging competition in the provision of services by registered inspectors.51 an inspection team must include at least one member without personal experience in the 47. the government may have to accept an increase overall of expenditure on education in order to protect schools which might be potential losers on acquiring gm status. 48. the difference is in the analysis of the finances of leas which have exceeded their education standard spending assessment for 1991-92. under new financial arrangements, schools in those leas may be better off financially by deciding not to apply for gm status (the times educarional supplement, august 14, 1992). 49. education (schools) act 1992, s. 1 (england) and s. 5 (wales). 50. ibid., s. 2(1). 51. ibid., s. 2 generally and s. 2(3) in particular. in the case of an inspection under s. 9, before entering into any arrangements for an inspection, the chief inspector shall, after consulting the appropriate authority for the school concerned as to the tender specification, invite tenders from at least two registered inspectors at arm's length from each other s. 9(7) and sch. 2, para. '2. 182 framework for education in schools linked with judicial review management of any school or the provision of education in any school (otherwise than as a governor or in any other voluntary capacity) and whose primary function on the team is not that of providing financial or business expertise. 52 the lea may provide services for the inspection of schools whether or not they are maintained by that lea,53 in such a way as can reasonably be expected to recover the full cost by way of charges made by the lea for its services. 54 separately, the lea may inspect a maintained school for a specific purpose.55 schedule 2, para. 9 provides for reports to be made by the registered inspector and for such reports to be made available to members of the public and for such steps to be taken as are reasonably practicable to secure that every parent of a registered pupil at the school receives a copy of the summary as soon as is reasonably practicable. information about schools the secretary of state has power to make regulations under section 16of the 1992 act requiring governing bodies of maintained schools (and proprietors of independent schools)56 to provide information, including destinations of pupils leaving a school. 57such information is intended to be such as is likely to assist parents in choosing schools for their children (emphasis added);58 to increase public awareness of the quality of education at and educational standards of schools; and to assist in assessing the efficiency of management of the financial resources of schools. this is the basis for controversy as to the validity of data as to examination results without taking account of the 'value added' according to the socioeconomic background of the pupils and other factors. 59 from the autumn term 1992, all maintained schools have had to publish their record of "unauthorised pupil absence" (i.e. truancy) in their prospectuses and annual reports and from 1993 this information will be included in performance tables published locally in respect of all schools.60 'failing' schools inspection reports are intended to identify "schools at risk", and the secretary of state will have the ultimate power to appoint an 'education association' to take over the management of an 'at risk' school or groups of schools. the education 52. ibid., ss. 9(7) and sch. 2, para. 3(2). 53. ibid., s. 14(1)-(3). 54. ibid., s. 14(4). 55. ibid., s. 15. 56. ibid., s. 16(9). 57. ibid., s. 16(2). 58. ibid., s. 16(3) see notes 19 and 20 supra. 59. see, e.g., d. hutchison, chief statistician to the national foundation for educational research, school records making sense of school results (1991). in response to criticisms of results from raw data, the government is consulting as to publication of results which reflect 'value added' by schools. 60. cm. 2021, 1992, ch. 5, para. 8. 183 the denning law journal association will consist of a chairman and typically some five other part-time members appointed by the secretary of state and the education association has, in relation to each of the schools for which it is responsible, the powers and funding ofa gm body.61 subordinate legislation and des/dfe circulars while the subordinate legislation which is still in force dates back to 1944, the substantial flow of regulations affecting schools commenced (not surprisingly) from 1980. among many possible examples of the most significant statutory instruments are those relating to information made under the 1980act;62to special educational needs under the 1981act;63to school government under the 1986(no. 2) act;64and to gm finance65and the national curriculum66 under the 1988 act. the number of departmental circulars (and administrative memoranda) from the des (now the dfe) and the welsh office, both current at 1january 1979and issued thereafter, is (to say the least) substantial. the standard disclaimer as to the status of a circular reads: "the guidance in this circular does not constitute an authoritative legal interpretation of the [act] or the [regulations]: that is a matter for the courts." none the less, the circular is highly influential, and it is arguable that for the lea to disregard guidance in a circular may amount to the lea acting so unreasonably or irrationally or unfairly as to justify prima facie an application for judicial review. among the better known and recent circulars are no. 11/88 as to admission of pupils to county and voluntary schools under the 1980 and 1988 acts; no. 22/89 and addendum dated 10 march 1992 as to procedures for assessments and statements of special educational needs under the 1981 act and consequential regulations; nos. 7/88 and 7/91 as to local management of schools; and no. 10/88 as to grant-maintained schools. one recent example of the status of circulars is the addendum to circular 22/89 dated 10 march 1992, which made revisions to existing guidance in the light both of recent judicial decisions, notably r. v. secretary of state for education and science, ex parte e,67 and legislation. in spite of the fact that circulars only 61. education bill 1992, part v. 62. education (school information) regulations 1981 (s.i. 1981/630); education (information on school examination results) (england) regulations 1991 (s.i. 1991/1265). 63. education (special educational needs) regulations 1983 (s.i. 1983/29); education (special educational needs) (amendment) regulations 1990 (s.l. 1990/1524); education (special educational needs) (approval ofindependent schools) regulations 1991 (s.l. 1991/449). 64. education (school government) regulations 1989 (s.l. 1989/1503). 65. education (grant-maintained schools) (finance) regulations 1992 (s.l. 1992/555). 66. regulations relate to assessment arrangements; attainment targets and programmes of study; and exceptions. 67. [1992] 1 f.l.r. 377 (c.a.). 184 framework for education in schools linked with judicial review constitute 'guidance', in practice they determine the day-to-day implementation of education policy.68 complaints to secretary of state in addition to powers conferred by legislation as to specific matters, the secretary of state can exercise two significant powers under section 68 or section 99 of the 1944 act, either on his own initiative or as a result of a complaint to him. if the secretary of state is satisfied, either on a complaint by any person or otherwise, that the lea or the governors of schools (county, voluntary or gm) or other specified institutions have acted or are proposing to act unreasonably, under section 68 the secretary of state can give such directions as appear to him to be expedient. it has been held that the courts can enforce compliance with a bonafide direction by way of an order of mandamus. 69section 99 empowers the secretary of state, either on a complaint by any person or otherwise, to give directions where the lea or school governors are in default by virtue of a failure to discharge their statutory duty; the section specifically provides that any such direction is enforceable, on an application made on behalf of the secretary of state by mandamus. these sections have not been regarded as providing a suitable means of avoiding litigation in order to have a grievance investigated and rectified due to the time which it takes for the dfe to investigate a complaint and for the secretary of state to reach a decision. the position is aggravated if a failure to make a complaint to the secretary of state risks invalidating an application for judicial review by virtue of the argument that complaints under the 1944 act may be a means of appeal which must be first used before making such an application. it is also contrary to the principle that there should be the minimum of delay in reaching decisions when the upbringing of a child is at issue/a a factor which may encourage the courts to intervene by way of judicial review where the education of a child is at issue. it also remains to be seen whether a reorganisation within the dfe to deal with a recent and substantial increase in the number of complaints by parents will result in a more prompt and effective remedy for parents under the 1944 act. the ombudsman and the local ombudsman a complaint of maladministration against the dfe can be investigated by the parliamentary commissioner for administration (the ombudsman) and a 68. see the law of education 9th ed. (butterworths), division e circulars, circular letters and administrative memoranda. 69. secretary of state for education and science v. tameside metropolitan borough council [1977] a.c. 1014 (h.l.). 70. children act 1989, s. 1(2). 185 the denning law journal complaint of maladministration against the lea can be investigated by the commissioner for local administration (the local ombudsman). parents are increasingly making complaints to the local ombudsman in respect of actions or omissions by the lea, but it is regrettable that where there is a finding of maladministration causing an injustice that decision is not enforceable and is on occasions ignored by a local authority. it is a measure of the importance of the local ombudsman's decisions in respect of the law of education that they are now reported on a regular basis.71 the growth of judicial review in england and wales among lawyers who specialise in the law of education there is concern that voluntary organisations who advise parents may come to see judicial review as a remedy of first rather than last resort and generally that there may be a temptation to make applications which are precipitate or inappropriate. it is essential that clients should be advised that judicial review is not the same as an appeal. an act of parliament may grant decision-making powers or discretions and impose duties upon a decision maker, who may be an individual, a body of persons or a corporation. the statute mayor may not provide machinery for an appeal against that decision and the appellate process.72 once the decision has been made and any appeal process has been exhausted, the merits of the decision are not open to judicial review. it is usually necessary for the applicant to have used all available appeal procedures before judicial review can even be considered. clients also find it difficult to accept that in proceedings for judicial review the court is concerned only to see whether the decision-maker has contravened the law by acting in excess of the powers which parliament has confided in him 73 and that the function of the court is therefore a limited supervisory one.74 before initiating proceedings for judicial review, care must be taken to assess whether what is being sought is not an oblique appeal,75 and that prima facie there is a ground within the three heads which lord diplock suggested that administrative action is subject to judicial review 'illegality'; 'irrationality' (in the sense of being so unreasonable that no reasonable authority would have come to that particular conclusion); and 'procedural impropriety'. 76 71. see, e.g., education and the law (longman). 72. r. v. independent television commission, ex parle t.s. w. broadcasting ltd. (1992) the times, march 30 (h.l.). 73. associated provincial picture houses ltd. v. wednesbury corporation [1948] 1 k.b. 223 (c.a.), per lord greene mr at p. 233. 74. kent v. university college london (1992) the times, february 18 (c.a.). 75. r. v. secrezary of state for education and others, ex parle banham (1992) the times, march 9 (q.b.d.). 76. council of civil service unions and others v.minister for the civil service [1984] 3 w.l.r. 1174, at p. 1196 (h.l.). when suggesting the grounds for judicial review (illegality, irrationality and procedural impropriety), lord diplock did not rule out the addition of further grounds, " ... particularly the 186 framework for education in schools linked with judicial review practitioners are often faced with a major problem when a client has allowed time to elapse before taking legal advice as to an administrative decision. an application must be made promptly and in any event within three months from the date when the grounds for application first arose unless the court considers that there is good reason for extending the period for applying.77 an application for legal aid may have to be made on an emergecy basis within the time limit. there is a further complication which has to be explained to a client, namely that success in judicial review proceedings may be an illusion, because the court has discretion whether or not to make an order. there may be proven procedural impropriety, but the court may decide that it did not affect the outcome and that no order should be made. this recently occurred when the court held that a selection panel of governors which had been constituted to appoint a headteacher should not operate with less than its complement of numbers, but on the facts the judge refused to grant relief.78another example of the illusion of success occurs when one party obtains an order by the court that there has been procedural impropriety, whereupon the other party repeats the decision-making process, the second time properly, so that the original decision in effect is reinstated. against that background, various issues which have been the subject of applications for judicial review are now considered. procedural errors removal of governors the power of removal now exists by virtue of section 8(5) of the 1986 act. this issue was considered in inner london education authority v. brunyaie and another,79 when the house of lords unanimously held (per lord bridge of harwich) that" ... individual governors, so long as they hold office as such, have both the right and the duty to exercise the function of their office independently in accordance with their own judgment. it follows implicitly ... that the power of removal cannot be exercised in a way that would amount to a usurpation of the governors' independent role."80 governors who are appointed by the lea are not, therefore, delegates and cannot be required to vote on any particular issue as the authority wishes.81in r. v. westminster roman catholic diocese trustee, ex parte andrews82 the court of appeal decided that it was bound by brunyate and therefore concluded that the removal of two governors who would not support the trustee's scheme for reorganisation of a school had not been a valid exercise of the trustee's powers. possible adoption in the future of the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of the european ... community .... " 77. r.s.c. order 53, rule 4. 78. r. v. birmingham city council, ex parte mckenna (1991) the times, may 16 (q.b.d.). 79. [1989] i w.l.r. 542 (h.l.) (when s. 21(1) of the education act 1944,now repealed and replaced by s. 8(5) of the education (no.2) act 1986, was at issue). 80. ibid., at p. 547. 81. ibid., at p. 548. 82. (1989) the independent, july 27 (c.a.). 187 the denning law journal the 'political proportionality' principle by contrast, in r. v. warwickshire county council, ex parte dill-russell and another83 the court of appeal upheld a decision by the divisional court that a council can (by removal under section 8(5) of the 1986 act) replace school governors after a county council election in order to facilitate better synchronisation of appointments of governors and county council elections. warwickshire's intention had not been to abrogate the independence of governors (as was the case in brunyate) but rather to preserve political proportionality on governing bodies, corresponding with the representation of political parties on the council. the relevance of statutory consultation the divisional court has held that a failure to consult, and the conjoined failure to consider the education implications of a lea's scheme to withdraw a school's site from the scope of the statutory transfer to the education assets board,84vitiated the decisions of the urgent matters sub-committee, and of the policy and resources committee in r. v. tameside metropolitan borough council, ex parte governors of a udenshaw high school and another. 85the lea's bona fide scheme to withdraw the site from the scope of the statutory transfer if the school obtained grantmaintained status fell on this single point of failure to consult. school admissions the house of lords recently refused leave to appeal against the decision in r. v. bromley london borough council, ex parte 06 that there is a clear duty on the lea not in any way to differentiate between applicants living within the lea's area and those living outside it when considering applications for admission, following the decision of the court of appeal in r. v. shadow education committee of the london borough of greenwich, ex parte the governors of john ball primary school and others.87 in deciding greenwich, the court of appeal applied the rules of statutory interpretation. lloyd lj also identified what he described as " ... the seeds of a possible theoretical difficulty" if there was an influx of children to greenwich, but he decided that on the particular evidence there was little practical difficulty.88 farquarson lj considered that the so-called 'floodgates' argument (as to numbers of pupils likely to cross the border between the adjacent leas) did not have much reality. 83. (1990) the times, december 7 (c.a.). 84. education reform act 1988, ss. 74 and 198. 85. (1990) the times, june 27 (q.b.d.). 86. [1992] 1 f.l.r. 174 (q.b.d.). 87. (1990) 88 l.g.r. 589 (c.a.). 88. ibid., at p. 598. 188 framework for education in schools linked with judicial review by contrast, in bromley, watkins lj commented that for a lea to provide an efficient education as required by sections 7 and 8 of the education act 1944, in the light of the interaction between those sections and section 6 of the 1980 act (imposing parental preferences), was 'painfully difficult', especially where there was oversubscription. watkins lj and owen j saw much practical difficulty and it did not surprise them to learn that representations had been made to the secretary of state to have the law changed. 89 greenwich also bound the queen's bench divisional court in r. v. royal borough of kingston upon thames, ex parte kingwe1l90 in which mr. kingwell was considerably aggrieved that, long after he had moved into the borough so that his daughters could be educated at a selective, single-sex grammar school (and he had paid his community charge to the borough), the borough as lea changed its admissions policy in the light of the decision in greenwich, giving his daughters no priority over applicants living outside the lea's area. the case illustrates the effect of the threat of or an actual application for judicial review, because less than a month after mr. kingwell commenced judicial review proceedings, the admissions limit of his preferred school was increased (against opposition) and his elder daughter was offered a place. that did not, however, deter him from pursuing his application to have the new admissions policy declared unlawful, although his challenge was unsuccessful. the primacy of parental preference was also demonstrated in r. v. cleveland county council and others, ex parte commission for radal equality,91 when the court of appeal held that the mandatory duty to comply with a parental preference imposed by section 6(3) of the 1980act was not qualified by section 18 of the race relations act 1976. the child was of mixed race and the mother was distressed by the suggestion that her motives in seeking a transfer for her daughter to another school were in any way racially governed. in any event, the court of appeal decided that the transfer of the child was not an act of segregation on racial grounds. on the other hand, in r. v. governors of the bishop challoner roman catholic comprehensive girls' school andanother92 the house of lords upheld the decision of the court of appeal that a voluntary aided school's admissions policy of giving preference to christians, preferably catholics, was lawful under the exception in section 6(3)(a) of the 1980act when the school was oversubscribed and had to have an admissions policy. children with special educational needs the procedures under the 1981 act are sufficiently complex for the court of 89. (1992] i f.l.r. 174, at p. 181 (q.b.d.). 90. [1992] i f.l.r. 182 (q.b.d.). 91. (1992) the times, august 25 (c.a.). para. 49 of des circular 11/88 reminds leas and governors of the race relations act 1976 and the sex discrimination act 1975. 92. (1992] i w.l.r. 99 (h.l.). 189 the denning law journal appeal to have acknowledged with appreciation the provision by counsel for the secretary of state of a 'flow chart', which was annexed to the transcript of the judgments in r. v. secretary of state for education and science, ex parte e,93 in which the provision for a child's special educational needs was not adequately specified in the statement made under section 7 of the 1981 act. although part i i of the lea's statement described e as "experiencing difficulties in literacy and numeracy skills", part iii of the statement dealt only with special educational provision for e's literacy difficulties and failed to mention the numeracy difficulties. an addendum dated 10 march 1992 to des circular 22/29 (supra) was subsequently issued, clarifying guidance on statutory procedures under the 1981 act and the form and content of statements, revised to take account of the judgment in ex parte e and other decisions.94 the secretary of state's quasi-judicial function the question has been raised as to the quasi-judicial function of the secretary of state when considering an application for gm status, while at the same time actively encouraging such applications in line with his party's political policy. r. v. secretary of scate for education and science, ex parte avon county council (no. 2)95 established that the secretary of state is entitled to have a political policy, provided that the machinery of the act is complied with and the minister has acted lawfully, because the minister is accountable to parliament in respect of his assessment of the best method by which to secure the objects of the legislation. the secretary of state can properly decide to approve an application by a school for gm status even if such approval will effectively frustrate an lea's reorganisation scheme. ralph gibson lj considered that avon's application was misconceived in so far as it asked the court to intervene in what was, when analysed, a dispute as to educational policy between avon and the minister. it was common ground that the approval of g m status for beechen cliff would frustrate the re-organisation. ralph gibson lj observed that " ... [t]he minister, however, was acting under powers given by parliament in the act of 1988. if he was acting lawfully within those powers, there is no purpose in seeking to demonstrate that the proposals put forward by avon are, in the view of those putting them forward, superior for the purposes of advancing the quality of secondary education for the children of bath. parliament did not entrust the making of that judgment to the court but to the minister who is answerable in respect of his decisions to parliament."96 nicholls and mustill ljj concurred. 93. [1992] 1 f.l.r. 377 (c.a.), (supra). 94. r. v. secretary of state for education and science, ex parte lashford [1988] 1 f.l.r. 72 (c.a.);r. v. lancashire county council, ex parte c.m. (1989) fam. law 395 (c.a.). 95. (1990) 88 l.g.r. 737 (c.a.). 96. reference is to lexis transcript. 190 framework for education in schools linked with judicial review conclusion from 1980to 1992the emphasis was on legislation, both primary and subordinate, which created a new framework for education in schools and a diminishing role for leas. applications for judicial review increased to a pronounced extent, because the complexity of the new relationships between schools and the secretary of state and leas has inevitably led to questions as to procedures and the legality of decisions made under that legislation. the 1992 bill received its second reading on 9 november. its objectives are formidable to establish funding agencies for schools in england and wales and to redistribute responsibility for, and the provision of, education at school; to encourage the majority of schools to opt for gm status; to reform the arrangements for children with special educational needs; to amend the law on admissions and school attendance orders; to establish education associations for failing schools; and to establish a school curriculum and assessment authority. extensive regulations will have to be made in order to give effect to the primary legislation. doubts have already been raised as to whether the central thrust of government policy a substantial increase in the number of gm schools will be achieved, not only because of questions as to the financial benefits or otherwise, but also due to the lack of any requirement that schools should hold regular ballots of parents on this issue, rather than leaving the initiative primarily with the governing body. when the 1992 bill is considered in the context of the education (no.2) act 1986, the education reform act 1988, the education (schools) act 1992and the further and higher education act 1992(which is outside the scope of this article), the scale and pace of reform of the law of education is seen to be exceptional. demand for advice and representation in this field has expanded dramatically, involving not only lawyers in private practice or employed in the public sector, but also law centres, educational psychologists and a wide variety of charitable organisations. as a result, the law of education is set to become one of the most prominent specialist areas this decade. 191 "we have a law ... ": the trials of jesus of nazareth r. p. booth* to the roman judge, pilate so records the evangelist, john the jews protested that they had a law, and by that law jesus should die because he had made himself the son of god.l this claim illustrates the conflict of laws permeating the proceedings which culminated in jesus' cruciftxion. even amongst the jews, the pharisees and the saducees followed different versions of theocratic law, but had, perforce, to unite to frame charges that would induce a roman court to pronounce a death penalty. in addition to the interplay of different legal systems, the uncertain boundary between judicial decision and executive action is explicit in the proceedings before pilate, and implicit in the attendance before herod. another aspect of this conflict lies in the contrast between jewish culture in which law is the will of god and thus theology, and roman culture where law is the will of a human sovereign. thus, the historical importance of the trials of jesus can hardly be over-estimated; their impact on subsequent relations between jews and gentiles was cataclysmic, and their religious signiftcance for the christian is self-evident. they also constitute a fascinating study for the comparative lawyer. pursuing what has been termed the 'forensic' method,2 an attempt will be made in this essay to assess the often conflicting literary evidence about the trials, and to determine how far the evidence thus found to be more probably authentic, is supported by the relevant law of that period. * solicitor. formerly senior lecturer in law, university of buckingham. 1. 19,7. the translation of the new testament used in this essay is the revised standard version. 2. this involves treating the gospel statements mutatis mutandis as if they were the depositions of a witness in civil litigation. they are thus liable to be over-ridden by stronger evidence to the contrary, but if unopposed will be accepted unless their content is intrinsically improbable. admittedly, the weight to be attributed to gospel assertions as evidence is reduced by the greater credulity of the ancients and by the possible distortion of the tradition in its oral transmission and translation into greek. this approach is, however, to be contrasted with that of many radical new testament critics who consider there is so much dubious material in the gospels that their study of a statement commences with a presumption of its inauthenticity. we explain our method more fully injesus and the laws of purity, sheffield academic press (1986), pp. 15-18 and in concrasts gospel evidence and christian beliefs, paget press (1990), pp. i-ii. the denning law journal the bulk of the evidence of the proceedings is found in the christian gospels. underlying the gospel accounts there seem to be three sources or eye-witnesses3 who are largely independent of each other. mark provides the ear liest 'law report' of jesus' trials (including arrest).4 matthew5 substantially follows (i.e., copies) mark, and although he includes some new material (e.g., the dream of pilate's wife and pilate's washing of his hands),6 it is marginal to the course of the proceedings. luke's version7 supports much of mark's evidence, but introduces from his own source ('l' not the common source, 'q')8 important additional material (e.g., the allegations before pilate of perverting the nation and forbidding tribute) which is discussed below. because of this new material and because luke's greek vocabulary differs materially from mark's in the places where his narrative does agree with mark's, it seems that luke's report stems not only from a different tradent9 but from a different eye-witness or witnesses. again, john's report of the trials10 is so different in content from mark's and luke's that he may well represent a third independent eye-witness whose assertions must be weighed. other early christian evidence is of a general nature. i i the only talmudicl2 evidence of the judicial reason for jesus' death is at sanhedrin 43a; "on the eve of passover yeshu was hanged. for forty days before the execution took place, a herald went forth and cried, '[yeshu] is going forth to be stoned because he has practised sorcery and enticed israel to apostasy. anyone who can say anything in his favour, let him come forward and plead on his behalf.' but since nothing was 3. in the main, the evangelists collected stories which had first been related by eye-wimesses and then passed on, usually orally, until they reached an evangelist. if the author of john's gospel was "the beloved disciple" (13,23), then he was an eye-wimess himself. mark, too, may have been a first-hand wimess of some events (14,51), particularly if he was the son of the mary whose home was a rendezvous of the first christians; additionally, he is said to have been the 'interpreter' of peter. 4. probably, mark wrote his gospel in a.d. 65-7, and matthew and luke between 80 and 100 a.d .. of mark's 661 verses, matthew repeats in very similar greek 600 and luke, 350. therefore, most scholars agree that matthew and luke copied from mark. see further hereon, b. h. streeter, the four gospels, macmillan (1927), ch. vii. 5. 26,47 -27,31. 6.27,19; 27,24. 7.22,47-23,25. 8. in addition to mark's gospel, matthew and luke used another source, probably written, called 'q' (german, queue, source) from which they copied. but each used also his private source of tradition called by scholars 'm' and 'l' respectively. 9. a tradent is a person who passed on orally the stories about jesus before they reached the evangelist. the different routes which the stories could take before reaching the evangelists, and the complexities involved in examining whether a similar story contained in two or more gospels originated with separate eye-wimesses, or were merely passed down wholly or partly different lines of tradents, are discussed by the present writer in contrasts, supra n. 2, pp. 112-16. 10. 18,2-19,16. ii. e.g., i thessalonians 2,15: " ... the jews who killed both the lord jesus and the prophets". there is specific evidence in the acts ofthe apostles (3, 13-15; 13,27 -28), but since that book was also written by luke, we class it with his gospel. 12. the references in this essay are to the babylonian talmud, although there is also a palestinian talmud. the former contains the mishnah (see n. 47 infra) with commentary and discussion on it by later rabbis, and was finally compiled, c. 550 a.d .. 2 the trials of jesus of nazareth brought forward in his favour, he was hanged on the eve of the passover."13 although this is useful support for john's assertion that jesus was crucified on the day before passover, 14the assertions of charges of sorcery and leading israel astray and of a leisurely wait for a defence, are outweighed by the cumulative gospel evidence to be adduced below. there is scant evidence about the trial in secular histories of the time. josephus, the roman-jewish historian, wrote c. 93 a.d.: "when pilate, upon hearing [jesus] accused by men of the highest standing among us, had condemned him to be crucified, those who had in the first place come to love him, did not give up their affection for him."15 part of the passage about jesus in which the quoted words appear (the testimonium flavianum) is considered to have been interpolated by christians, but this neutral sentence may well be genuine. it alleges the participation of both the jews and pilate in the proceedings, but does not state the charges. tacitus, writing c. 115-7 a.d., only mentions pilate. speaking of the christians, he said: "christus, the founder of the name, had undergone the death penalty in the reign of tiberi us by sentence of the procurator, pontius pilate."16 it is, therefore, the gospel evidence which we must assess in an attempt to establish the likeliest course ofthe proceedings which led to the crucifixion. for ease of examination these proceedings can be separated into the arrest, the proceedings before the jews, the proceedings before pilate, the proceedings before herod, and the judgment of pilate. the arrest mark speaks of an arresting party comprising judas with "a crowd with swords and clubs, from the chief priests and the scribes and the elders."17 luke, also, describes a jewish arresting party, for he refers to the "chief priests and captains of the temple and elders, who had come out against [jesus]." 18however, john asserts that judas arrived with a "band of soldiers and some officers from the chief priests and the pharisees," 19 and later calls them, "the band of soldiers and their captain and the officers of the jews. "20 the greek words translated "band of soldiers" and "captain" are respectively speira and chiliarchos; the former strictly means a roman cohort and the latter, the commander of a thousand roman soldiers. thus, we already have a conflict of evidence with mark and luke attesting a jewish arrest and john, a combined roman and jewish one. it is doubtful, though, that mark and luke can be treated as separate witnesses on this issue. although their 13. e. t. soncino, nezikin, vol. iii, p. 281. 14. john 13,1;18,28. mark (14,12) and luke (22,14) place the crucifixion on the passover. 15. antiquities 18,64 (e. t. loeb, vol. ix, p. 51). 16. annals 15,44 (e. t. loeb, vol. v, p. 283). 17. 14,43. 18.22,52. 19. 18,3. 20. 18,12. 3 the denning law journal comparable passages2l describing the arrest are similar, there are sufficient differences to suggest that luke is not copying mark; the similarities, however, make it likely that their reports of the arrest emanate from a common witness. thus, we have one witness (john's source) asserting roman involvement in the arrest, and one witness (mark's and luke's source) denying it. mark is writing sooner after the event than john, but the passion story, including the trial is thought to have acquired a fairly fixed form at an early date, so john's source may likewise be early. the possible historicity of much of john's narrative has been increasingly recognised by modem scholars. as c. h. dodd has written: "behind the fourth gospel lies an ancient tradition independent of the other gospels, and meriting serious consideration as a contribution to our knowledge of the historical facts concerning jesus christ."22 since the literary evidence is evenly balanced between mark/luke and john, we must investigate other evidence of the identity of the arresters. opposing john's evidence that a cohort of soldiers attended judas, is the very size of a cohort which comprised a tenth of a legion which in tum comprised 3-6,000 men. so a cohort comprised at least 300 men and probably more,23 since it was commanded by a chi/iarch, literally the commander of 1000 men. admittedly, a cohort of soldiers was permanently stationed in the antonia citadel on the north side of the temple,24 but it seems unlikely that so large a contingent would be commissioned to arrest one man even if his attendants might be armed, for judas would presumably have told the chief priests of the small number of jesus' group of disciples. when, about 25 years later, paul was arrested by the tribune of the cohort after being mobbed by the crowd in the temple, luke only records that the tribune "took soldiers and centurions,"25 i.e., presumably not the whole cohort. on the other hand, this counter-evidence argues mainly against john's assertion of the size of the roman contingent, and only to a lesser extent casts doubt on john's accuracy as to the presence of any roman soldiers. the fact, attested by all the evangelists, that jesus was taken to the high priest's house, indicates that the arrest was probably instigated by the jews,26 so we must search for evidence as to whether or not the jews could obtain assistance from the romans in arresting a person for the purpose of jewish legal proceedings. to this end, there follows a brief survey of the relationship between roman and jewish jurisdiction in j udaea at this time. in 63 b.c., the roman pompey had defeated in battle the last of the native maccabean rulers, and had conquered palestine. in conformity with their usual colonial practice, the romans reserved the maintenance of law and order to 21. mark 14,43-52 and luke 22,47-53. 22. historical tradition in the fourth gospel, cambridge (1963), p. 423. 23. see e. schiirer, the his!ory of chejewish people in the age ofjesuschrisc, t. &t. clark (1973), vol. i, pp. 362-3. 24. op. cit., p. 366. 25. acts 21,32. 26. contra, p. winter, on che trial of jesus, de gruyter, berlin (1961), pp. 48-9. 4 the trials of jesus of nazareth themselves, but successive rulers allowed the jews continued self-government in matters of private law.27 the reserved law was administered on behalf of rome by puppet kings or tetrarchs like the idumean herods or, more directly, by a roman praefectus at caesarea. on herod the great's death in 4 b.c. the rule ofjudaea was granted by augustus to herod's son, archelaus, and that of galilee to herod's son, antipas. due to archelaus' mis-rule he was deposed in a.d. 6 and judaea became a roman province governed by a praefectus. pontius pilate was praefectus from a.d. 26 to 36 and was hated by the jews because of his disregard for their customs and privileges. he had ordered his troops to enter jerusalem with ensigns bearing the emperor's image (which contravened the second mosaic commandment), and had applied the treasures of the temple to the building of an aqueduct.28 in view of this mutual hostility it seems unlikely that the chief priests would seek the assistance of the romans to effect an arrest which their temple officers could easily achieve; nor is it likely that the romans would give such assistance if requested. in exercise of their imperium through the power of coercitio the romans could arrest in judaea whomsoever they wished, but they would normally use this power only where law and order, and hence rome's dominium, were threatened. thus, even when the tribune ordered paul's arrest, it was because "all jerusalem was in confusion" during the attempt at lynch-justice, not because of paul's alleged preaching against jewish law, and defilement of the temple.29 his subsequent defence before felix, the governor, was that he had not caused a disturbance in the temple, the synagogues or the city.30moreover, the jewish authorities did not themselves lack power to apprehend; on two occasions they arrested apostles in jerusalem,31 and paul apparently obtained authority from the high priest to arrest christians even outside palestine, in damascus.32 since there was no public commotion at the time of jesus' arrest, we find mark's evidence (supported by luke's version) more probable, namely that jesus' arrest was effected by judas and others sent from the chief priests, scribes and elders being the three component parts of the sanhedrin. this was the supreme judicial and legislative body for civil and unreserved criminal law in judaea, subject always to the romans' power to intervene. it is very likely that prominent among the arresting party were the captains of the temple and their assistants, i.e., the temple police who would enforce the wishes of the chief priests or the sanhedrin. on receiving 27. thus josephus reports that when julius caesar in 47 b.c. appointed hyrcanus and his children to be ethnarch and high priest of the jews, they were given such high priestly rights as existed in . .aa:ordance with their laws, and "if any question shall arise concerning the jews' manner oflife, it is my pleasure that the decision rests with [hyrcanus and his children]": antiquities 14, 194-5. 28. josephus, antiquities 18,55-62; war 2, 169-177. according to the mishnah the building of an aqueduct was arguably an authorised use of temple funds (shekalim 4, 2). 29. acts 21,28-32. 30. acts 24,11-12. 31. acts 4,3; 5,17. 32. acts 9,1-2; 26,12. 5 the denning law journal judas' information,33 the chief priests may themselves have had authority to bring jesus before the sanhedrin in its aforesaid capacity as a criminal court. the next scene is before the high priest, who was the president of the sanhedrin.34 proceedings before the jews according to mark,35 jesus' arresters lead him to the high priest, presumably to his house as matthew interprets,36 where all the chief priests, elders and scribes were gathered. luke37 states that jesus was led to the high priest's house, but he mentions no meeting until the morning. according to john,38 jesus was led to the house of annas, a former high priest (but, following custom, still called 'high priest'). the evidence concerning the nature of this nocturnal proceeding conflicts. mark appears to assert that it was a formal meeting of the sanhedrin for "the chief priests and the whole council sought testimony against jesus to put him to death";39 the greek word here translated "council", is sunedrion, i.e., sanhedrin. in luke, there is no meeting of the jews at night jesus is just detained until a morning meeting.40 in john, jesus is questioned by annas only and then sent to caiaphas (the high priest in office), but he is not brought before the sanhedrin until early the following morning,41 thus, the only witness attesting a night meeting of the sanhedrin is mark's source, whereas the accounts of luke and john, which deny a night meeting, are otherwise so different in content as to postulate separate witnesses lying behind them. the weight of the literary evidence is therefore opposed to a nocturnal meeting of the sanhedrin. against this literary evidence we must place the external evidence that (a) if the sanhedrin were to meet at night, the house of the high priest would be a natural place, since the "hall beside the xystus"42 (the normal meeting place) would be inaccessible after the gates to the temple mount had been closed at night, and (b) as a. n. sherwin-white has shown,43 if there had been only one meeting of the sanhedrin, and that in the morning, it would have required great haste to resolve the jewish legal issues and bring charges to pilate before the start of his latemorning leisure; roman gentlemen normally arose early, and had finished their matutinal labours by about the start of the sixth hour (after sunrise).44 since jesus 33. mark 14,1o-1l. 34. schurer, supra n. 23, vol. ii, p. 215. 35. 14,53. 36.26,57. 37.22,54. 38. 18,13. 39. 14,55. 40.22,66. 41. 18,28. 42. incorrectly called in the mishnah, "the chamber of hewn stone": see schurer, supra n. 23, vol. ii, pp. 223-5. 43. in roman society and roman law in the new testament, oxford (1963), pp. 44-6. 44. see also j. carcopino, daily life in ancient rome, routledge (1941), pp. 150-2. 6 the trials of jesus of nazareth was crucified at or shortly before that hour,45it would have been necessary for the jews to have approached pilate not much later than the fourth hour, i.e., about 10.00 a.m ..46sherwin-white is surely right to say that to reach pilate in time would have been difficult without a nocturnal meeting of the sanhedrin unless the proceedings of the sanhedrin were much shorter than mark indicates. on the other hand, evidence supporting luke and john's denial of a night meeting is the mishnah's provision at sanhedrin 4,1 that capital cases (i.e., those involving the death penalty) were not to be tried at night. this evidence is weakened, though, by uncertainty as to whether this provision, which was finally compiled c. a.d. 200,47 prevailed in the time ofjesus. some of the detailed court procedure there set out suggests the refining oflater years; the fluidity ofthe jewish legal system prior to the destruction of the temple in a.d. 70 is discussed below. assessing the literary and external evidence together, mark's evidence supported by the evidence of the time factor does produce a balance of probability in favour of a nocturnal meeting. but what kind of a trial took place at this nocturnal meeting? according to mark, it was a formal meeting of the sanhedrin, and this seems more probable than john's evidence that jesus was questioned by annas alone and then sent on to caiaphas, for apart from peter's denial we are not told what, if anything, happened there; the sequence as recorded seems to indicate little judicial purpose. in luke, as already mentioned, nothing happened at night. however, luke and mark agree that there was a formal meeting of the sanhedrin at some time so that john's evidence of an informal questioning by annas is outweighed. klausner has argued that the meeting of the sanhedrin was not convened to try jesus for offences against jewish law, but was rather a preliminary investigation whose result would have been submitted to pontius pilate for full adjudication under roman law ifhe thought appropriate.48 klausner cites the numerous egyptian papyri containing records of trials conducted by the romans and showing that the roman governors of egypt entrusted preliminary enquiries to the local egyptian authorities. there is no record in josephus or elsewhere that this procedure was applied in judaea, and the hostile relations described above render it unlikely that the sanhedrin would assist the roman judicial system in this way. josephus does report the case of jesus, son of ananias, who in the seventh decade a.d. continually prophesied destruction upon jerusalem and the temple, and did not desist even after chastisement by order of the sanhedrin. he was then delivered by that court to albinus the roman procurator for more severe scourging (which did not terminate 45. mark 15,33; luke 23,44. 46. time was never more than approximate, when timekeeping depended on the sun-dial and the water-clock, and sun-rise was a changing base: see carcopino, supra n. 44, pp. 148-150. 47. the mishnah contains the rulings of the scribes and rabbis on many aspects of jewish life which were passed on orally until committed to writing in the 2nd century a.d. and finally compiled in this book. it includes rulings dating from c. 200 b.c., but the difficulty of dating early rabbinic material is great and, with some proposals, is discussed by the present writer in jesus, supra n. 2, pp. 130-50. citations from the mishnah state the tractate (chapter) title sometimes preceded by 'm'. 48. jesus of nazareth, e. t. macmillan (1925), pp. 333-4. 7 the denning law journal the dirge albinus pronounced him mad and let him go!).49there, however, the sanhedrin did not conduct a mere preliminary investigation. it transferred the case not for full trial but for greater penalty. regarding the charges levelled at jesus in the nocturnal sanhedrin trial, both mark and luke assert that the high priest asked jesus whether he was the christ, the son of the blessed (luke son of god);50in luke the two titles were put to jesus separately, and are the only accusations laid before the sanhedrin. now, as the court's function was presumably to investigate offences against jewish law, the high priest's questions were irrelevant since 'christ' (chrislos) was the greek translation of the hebrew massiah (literally, the anointed one), and it was no offence against jewish law mistakenly (or correctly!) to claim to be the messiah; indeed, there were several aspirant messiahs around the time of jesus (see below), and no action was taken against them by the jews. for after all, the messiah was to be a national military hero in the model of king david, who would rid the jews of the roman yoke. a typical view of the messiah's role is expressed in a psalm of solomon thought to be the work of a pharisee in the period 63-48 b.c.: "behold, 0 lord, and raise up unto them their king, the son of david, in the time which thou, 0 god, knowest, that he may reign over israel thy servant; and gird him with strength that he may break in pieces them that rule unjustly. purge jerusalem from the heathen that trample her down to destroy her, with wisdom and with righteousness."s! a claim to be such a figure was, amongst the jews, laudable rather than indictable. a claim to be the son of god was similarly considered to be unobjectionable, even if extravagant. this title was first used of israel itself,52and the king came to hold it as the representative of the people. 53the discovery of the dead sea scrolls has provided evidence that in the years before jesus' birth the davidic messiah figure was gaining esteem as the son of god (4q plorilegium, 10-14). thus, claims to be the christ or the son of god did not approach the legal definition of blasphemy. it is ruled at leviticus 24,15 that "whoever curses his god shall bear his sin," and in v.16 that "he who blasphemes the name of the lord shall be put to death." the hebrew word-root translated 'curses' in v.15 (q-l-l), can bear the wider meaning of 'dishonour', but the root translated 'blasphemes' in v.16 (n-q-b), literally means 'pierce' (the name) and it is, 49. war 6, 300-9. 50. mark 14,61; luke 22,67,70. 51. psalm 17,23-25, e. t. h. e. ry1eand m. r. james, psalms of1hepharisees, cambridge (1891),pp. 137-8. 52. exodus 4,22-23; hosea 11,10. 53.2 samuel 7,14; psalm 2,7. 8 the trials of jesus of nazareth perhaps, in reliance on this strict meaning that the scribes, according to the mishnah,54 ruled that the accused is not culpable unless he pronounces the divine name (the tetragrammaton, y-h-w-h) itself. it is possible that in jesus' day more weight was given to the v .15 aspect of'dishonouring' god, but as discussed above, claims to be the messiah or the son of god could not be so construed. moreover, we cannot be sure that the sanhedrin followed the mishnaic law on the definition of blasphemy in jesus' trial and on other legal issues even ifthe law in the mishnah was current in jesus' day. for the rulings in the mishnah are by pharisaic scribes and rabbis, since the legal approach of the pharisees dominated in judaism after the fall of the temple in a.d. 70 and the consequent eclipse of the priestly sadducaic party. in jesus' time, the chief priests and the other sadducaic aristocracy were the major party in the sanhedrin, although there was a substantial pharisaic minority. 55in contrast to the pharisees, who gave force to the written law of the scriptures as interpreted and extended by the oral decisions of the scribes (later written down in the mishnah), the sadducees considered only the written law as binding, and this created hostility between the two parties.56 a judicial consequence of the different approaches is shown in the definition of blasphemy. the sadducees would probably give force to v .15 of leviticus 24 which, as already discussed, includes the dishonour of god57 whereas the pharisees, giving greater weight to v.16's reference to the name of the lord, would only find blasphemy where the tetragrammaton was uttered (and only then if a prior warning had been given!). notwithstanding the sadducaic majority in the sanhedrin, in many matters the legal views of the pharisees prevailed over those of the sadducees because otherwise the mass of the people who revered the pharisees would not tolerate the sadducees in official positions.58 it seems, however, from mark 2,7 that the wider definition of blasphemy based only on the written law was accepted even by the scribes in jesus' day, for there some scribes, having heard jesus purport to forgive sins, protest that it is blasphemy since "who can forgive sins but god alone?" regarding the charges of blasphemy before the high priest, even if jesus had claimed to be the son of man, that would hardly have constituted dishonour of god. although that son was the first of creation, 59and a heavenly being,60 and came to god with the clouds ofheaven,61 he was conceived of as a separate person, quite distinct from god. 54. sanhedrin 7,5. 55. see acts 23,6-10. 56. as evinced at acts 23,6-10 and m. yadaim, 6-8; josephus, antiquities, 13,297-8. 57. but see, contra, h. cohn, the tn'al and death of je~us, harper & row (1967), pp. 101-3. 58. josephus, antiquities, 18,17. 59. enoch 48,1. 60. enoch 46,2. 61. daniel 7,13. the view ofr. akiba (fl. c. 120-40) that david and god sat side by side on the thrones mentioned at daniel 7,9, although criticised, did not provoke allegations of blasphemy (sanhedrin 38b). 9 the denning law journal in addition to the substantive law, there is evidence from the jewish law of procedure militating against a conviction of jesus for blasphemy in that a confession by the accused is unlikely to have formed sufficient evidence to justify such a conviction. both the deuteronomic code (early 7th century b.c.)62and the tosephta (c.200 a.d.)63 stipulated that the evidence of two witnesses was necessary to convict on a capital charge, so that this was almost certainly the law in the time of jesus. the possibility that the accused's admission would remove the need for other witnesses is excluded, according to the scribes, by another tosephta provision64 that one of the differences between civil and criminal cases is that whereas in civil cases a person is bound by his own admission, in criminal cases a confession, in or out of court, is not evidence against him.65 nonetheless, mark asserts that after jesus had admitted being the christ, the son of the blessed (god), and added that the high priest would see the son of man sitting at the right hand of power and coming with the clouds of heaven, the high . priest declared this to be blasphemy, tore his coat (as was legally required),66 and the sanhedrin condemned jesus as deserving death.67it thus seems clearthat it is the claim to be the christ, the son of god, which the priest treats as blasphemous since jesus has not claimed to be son of man he has told the priest only that he, the priest, will see that son. in contrast to mark, in luke, on hearing jesus' admission that he was the son of god, the sanhedrin did not pronounce him guilty of blasphemy, but asked rhetorically what further testimony they needed. 68 this indicates not that they had convicted him of a jewish offence but rather that they had obtained the evidence necessary to convict him of a roman offence before pilate. the psalm of solomon (supra) shows what a direct threat to rome's dom£n£um a claim to be the davidic messiah constituted. supporting mark's assertion of blasphemy is john's assertion of a general allegation by the jews that "we have a law, and by that law he ought to die, because he has made himself the son of god. "69pitted against these assertions is the evidence of substantive and procedural law that the admissions could not support a conviction for blasphemy, and on a balance of probability luke's evidence is preferable that the admissions provided rather the testimony which the sanhedrin expected pilate to accept as showing treason. yet other charges were levelled at jesus before the sanhedrin according to 62. deuteronomy 17,6 (capital offence) and 19,15 (any offence); numbers 35,30 (capital offence). 63. sanhedrin 11,1. the tosephta ("the added things") is a collection of rulings traditionally thought to be supplemental to those in the mishnah, and to have been compiled shortly after the mishnah. it is sometimes cited by a 't' before the tractate title. 64. shevuot 3,8. 65. if the confession is itself blasphemous, it is arguable that those present in court could in a second trial give evidence of that blasphemy. 66. m. sanhedrin 7,5. 67. 14,62-64. 68.22,70-71. 69. 19.7. 10 the trials of jesus of nazareth mark.70 he records that many bore false witness against jesus, but their witness did not agree. the only specific allegation mark reports is that some falsely witnessed that they had heard jesus say, "i will destroy this temple that is made with hands, and in three days i will build another, not made with hands."71 mark adds that even these witnesses did not agree, but matthew implies his understanding that they did, for he reports, "at last two came forward and said, 'this fellow said, "i am able to destroy the temple of god, and to build it in three days.".' "72this hearsay seems to be a distortion of a claim of jesus which john reports, "destroy this temple and in three days i will raise it up",b where john adds that jesus spoke of the temple of his body. in any case, in john, jesus is not threatening to destroy the temple, he is claiming what he could do if it were destroyed. evidence supporting the authenticity (and the truth) of the temple allegation at jesus' trial is provided by luke's source; witnesses (false, says luke) atthe trial of stephen, aboutthree years later, testified, "we have heard [stephen] say thatthis jesus ofn azareth will destroy this place, and will change the customs which moses delivered to us."74 it seems more probable that jesus merely prophesied the destruction of the temple (correctly) rather than personally threatened to destroy it. for in mark, jesus says outside the temple, "do you see these great buildings? there will not be left one stone upon another that will not be thrown down. "75jesus uttered similar prophecies of doom on god's day of judgment for jerusalem76 and chorazin, bethsaida and capernaum.77 but, of course, the sanhedrin was solely and rightly concerned with the evidence given before it, namely (according to mark) that jesus had threatened to destroy the temple. it is not inconsistent that mark reports two witnesses as having testified in the quoted identical words, and yet states that their evidence did not agree. 78as already noted, the deuteronomic code provided that a man should not be convicted of any capital offence on the evidence of a single witness. this was interpreted to mean that the evidence of the two or more witnesses must agree exactly. thus, in the history of susannah (written c.b.c. 150-200) the conviction of susannah for adultery was set aside when, on reexamination, one witness said that the act took place under a mastick tree, while the other said under a holm tree.79the law seems gradually to have increased in strictness, since in later times according to the mishnah, the witness was asked on what date in the month, on what day, at what hour and in what place it was 70. 14,56-59. 71. 14,58. 72. 26,60-61. 73.2,19. 74. acts 6,14. 75.13,2. 76. matthew 23,37-38. 77. 11,20-24. 78. 14, 58-9. 79. vv. 52-58. 11 the denning law journal committed, and if one witness said the third day or hour and the other said the fifth, then the evidence of both was invalid.80 it is therefore possible that the witnesses, although agreeing on jesus' words concerning the destruction of the temple, disagreed about where, or more likely when, he spoke them. however, matthew's implication that the evidence of the witnesses about the temple did agree, is arguably stronger than mark's evidence to the contrary, since there would have been no cause for the high priest to demand why jesus did not answer the witnesses, if their evidence was invalid.81 the evidence indicating that jesus was condemned for blasphemy arising out of the temple threat, is supported by evidence ofthe substantive law. for it has been seen that following the broad definition of leviticus 24,15, in jesus' day, as exemplified in connection with jesus' forgiveness of sins, it was considered blasphemy to "dishonour" god. the temple was associated with god's honour because his name rested there.82it was obviously permissible for god himself through the prophets to threaten the destruction of the temple,83 but for a man to do so, might well have been considered blasphemous. the penalty expressed at leviticus 24,15 for "cursing god" (interpreted as including dishonouring god) is that the offender shall "bear his sin". the same verbal root, q-l-l, is used of cursing father or mother at leviticus 20,9 and there the penalty is death, so we may suppose that "bear his sin" should be so understood at 24,15.84 from this review of the marcan and lucan evidence concerning jesus' trial before the sanhedrin, aided by evidence of the procedural and substantive jewish law affecting blasphemy, it seems more probable that jesus was found guilty of blasphemy in that he had threatened to destroy the temple. there has been much debate over whether the sanhedrin possessed the power to execute the death penalty in a.d.33, but the preponderance of evidence is that it did not. the instances where the jews did cause death in this period appear to have been cases of 'lynch law' rather than of judicial sentence.85 admittedly, there is a talmudic saying that forty years before the destruction of the temple the right to try capital cases was taken from israel,86 which, allowing some imprecision, could mean that the sanhedrin's power to carry out the death penalty survived until a.d.33. it seems more likely that forty years was used to signify 'a long time' and that a cessation at the commencement of direct roman rule of judaea in a.d.6 is 80. sanhedrin 5,1. 81. 14,60. 82. 1 kings 8,29. 83. micah 3,12; jeremiah 26,6,18. 84. so, j. d. m. derrett, law in ehe new teseamene, darton, longman & todd (1970), p. 454; contra, cohn, supra n. 57, p. 101. 85. thus stephen at acts 7, 57-60, and james, the brother of jesus at josephus, antiquieies 20, 200-203. 86. sanhedrin 41a. 12 the trials of jesus of nazareth intended.87 moreover, john reports the jews as saying, "it is not lawful for us to put any man to death"88 and even in c. a.d.90 there were probably those who could have corrected john or his source if this tradition had been wrong. the strongest evidence against the jews' possession of the power to impose the death penalty arises from the nature of roman rule. as noted above, following augustus' deposition of archelaus in a.d.6, an equestrian praefectus was appointed to govern judaea as a roman province. because the ordo, a list of crimes for which a citizen in rome could be punished, was established long after rome acquired provinces to administer, the praefectus based his jurisdiction on his imperium which he held just like a proconsul or imperial legate who governed a province. imperium, although limited by statute, originated in the unbridled royal power which the consuls inherited from the kings of rome. in criminal jurisdiction the imperium gave the powers coercere et animadvertere (to compel obedience and to punish). although, as mentioned, rome had granted the jews permission to follow their own laws where public order was unaffected, it is most unlikely that tiberius had allowed them to exercise the death penalty. the edicts of augustus to the proconsul of cyrene in 7 -6 b.c. had shown this power to be reserved to the governor of a province, for in writing about non-capital charges augustus adds, "this does not apply to capital charges which the governor must hear and decide either by himself or by providing a jury."89 the admitted exception in judaea to this rule was that, according to josephus90 and a wellknown temple inscription,91 the sanhedrin was allowed to execute trespassers on the inner temple, but such trespassers could ipso facto only be gentiles.92 the above cumulative evidence persuades us that the sanhedrin did not have power at this time to execute the death penalty and so is unlikely to have pronounced it vainly. mark thus correctly states thatthey judged (katekrinan) jesus to be worthy of death (enochon thanatou),93 i.e., a judicial opinion rather than a sentence.94 consequently, to secure jesus' death, the sanhedrin had to arrange for two or three of its members, or others, to lay such information against jesus as would 87. josephus, war, 2, 117, reports that augustus on appointing coponius to be the first praefectus of judaea in a.d.6, delegated to him the power to rule on his behalf and exercise his authority including the right to inflict capital punishment. 88. 18,31. 89. quoted by sherwin-white, supra n. 43, p. 15. 90. war, 5,194. 91. the clermont-gannau inscription, "no foreigner is to enter within the forecourt and the balustrade around the sanctuary. whoever is caught will have himself to blame for his subsequent death." 92. although, concerning proselytes, see booth, contrasts, supra n.2, p. 104, n.30a. 93. 14,65. 94. cj., v. taylor, st. mark, macmillan (1953), p. 570. it is arguable that as there was no power to impose the death penalty, there were no capital cases in jewish law, and ifthere were no capital cases, the special rules affecting them, such as the trial being in daylight, did not apply after a.d. 6. however, this smacks of sophistry, and 'capital' was more probably construed as meaning a case where the accused, if found guilty, would be 'deserving of death' under jewish law. 13 the denning law journal induce pilate to order the roman death penalty, namely cruciftxion. and such was the punishment for sedition and political insurgency. 95 hence the meeting of the sanhedrin the following morning which is attested by mark, luke and john. 96 we may accept luke's evidence97 that it was at this morning meeting that the high priest addressed to jesus the questions about the messiahship discussed above. jesus' admission of the messiahship, which involved, in jewish expectation, inheritance of the royal throne of david, and hence a kingly claim, provided the evidence the jews wanted in order to found a charge of treason before pilate. the question naturally arises: why at the nocturnal meeting did the sanhedrin investigate and ftnd proved a charge of blasphemy arising from jesus' words against the temple when, to secure their presumed object of jesus' death, it was only necessary to ftnd for pilate evidence of treason which they achieved in the morning meeting? the answer may lie in the politics of the sanhedrin. for, although controlled by the sadducees, the sanhedrin, as noted above, contained a substantial pharisaic minority, and the pharisees received much popular support. the arrest of jesus by the sadducean chief priests in order to arraign him before the hated pilate would. probably have been condemned by the pharisees, and hence the people, if jesus had not then been accused before the sanhedrin of a breach of jewish law. once jesus had been convicted of a death-deserving offence against jewish law, however, the pharisees probably did not object to the sentence being ordered by a roman praefectus for a roman offence, given the unfortunate circumstance of roman dominion. proceedings before pilate sherwin-white has noted how well the procedure before pilate accorded with the roman court practice, extra ordinem.98 because legal proceedings in a province did not normally concern a crime in the roman ordo (list of crimes), which primarily contained the crimes of high society and even if the crime, like treason, was in the ordor the praefeccus was not required to follow that procedure the praefectus had complete freedom in the charges he accepted and in the penalties he imposed, apart from the mandatory cases of cruciftxion (the arbitriumjudicantis). the praefectus tested the facts alleged in the charge by his own cognitio (investigation) rather than by the method of examination and cross-examination by advocates as adopted by the common law. 98. supra, n. 43. 99. the lex julia maiestatis enacted by julius caesar in 46 b.c. created the capital offence of crimen laesae maiestatis, the crime of injuring the majesty of the emperor, and under this head of the ordo insurrection and treason were prosecuted at rome. 95. paulus, the 3rd-century jurist writes: "auctores seditionis et tumultus vel concitatores populi pro qua/itate dignitatis aut in ctucemtolluntur aut bestiis obiiciuntur aut in insulam deportantur" (sententiae 5.22.1); cj., the neronian persecution of christians (tacitus, annals 15,44). 96. 15,1; 22,6; 18,28. 97.22,66. 14 the trials of jesus of nazareth thus, in a cognitio extra ordinem the accusation is not of a particular crime, but of facts upon which the praefectus is invited to adjudicate. this freedom to decide whether the facts alleged constituted a crime is shown by pilate's response in luke to the chief priests' allegation "i find no crime in this man."l it also seems to be implicit in festus' reply about paul to the chief priests, " ... if there is anything wrong about the man, let them accuse him."2 thus, the evidence of the proceedings before pilate in luke's report seems to be the more probable. there the jews alleged specific facts, namely that they found jesus to be perverting the nation (i.e., inciting the people against rome), forbidding the giving of tribute to caesar, and claiming to be christ, a king.3 mark asserts that the chief priests "accused jesus of many things", which is strangely placed after pilate's immediate question on arrival, "are you the king of the jews?"4 in john, pilate more credibly opens the proceedings by asking the jews what accusation they bring, but there is less credibility in the jews' reply, "if this man were not an evildoer, we would not have handed him over",s since the chief priests would have known that such an allegation was insufficiently specific to lead to a conviction. pilate's next question to jesus, whether he was the king of the jews,6 suggests that john's tradition (like mark's) has omitted an accusation by the jews to this effect. the other accusation by the jews in john, "we have a law and by that law he ought to die because he has made himself the son of god",? also lacks credibility, being opposed by the evidence oflegal history, as discussed above. pilate's alarm at this allegation would admittedly be understandable since as a roman and inheritor of greek culture, he would have understood sonship of god as a claim to supernatural or divine status.s however, it is unlikely that the chief priests would ask pilate to condemn jesus for a religious offence against jewish law. they would know that pilate would refuse to involve himself in such matters; thus, in john's report pilate had previously said, "take him yourselves and judge him by your own law."9 similarly, festus, the procurator (later title for praefectus) ofjudaea c.a.d. 60-62, reports regarding the jews' accusations against paul: "when the accusers stood up, they brought no charge in his case of such evils as i supposed; but they had certain points of dispute with him about their own superstition and about one jesus, who was dead, but whom paul asserted to be alive. being at a loss how to 1. 23,4. 2. acts 25,5. 3.23,2. 4.15,2-3. 5. 18,29-30. 6. 18,33. 7. 19,7. 8. romans and others affected by hellenism would understand the title, 'son of god', to signify a 'divine man' who, because he effected miracles of healing or other wonders, was reputed to be descended from the gods. in this way, alexander the great, pythagoras, plato and several fraudulent persons were assigned divine ancestry. see further booth, conrrasrs, supra n. 2, pp. 175-7. 9. } 8,3 1. 15 the denning law journal investigate these questions, i asked whether he wished to go to jerusalem and be tried there regarding them." 10 the more probable gospel evidence, since it is supported by the evidence of legal history, is that pilate first asked the jews what accusation they brought against jesus, and that the jews in reply accused him of perverting the nation, forbidding the giving of tribute, i 1 and of claiming to be christ, a king. these charges may be the 'many things' to which mark refers. 12 the evidence of pilate's question, "are you the king of the jews?", attested by all three independent witnesses,13is persuasive that this was the main charge brought against jesus; this would certainly seem the most serious to pilate in the unsettled circumstances of the time. for josephus records how after the death of herod the great (b.c.4) judaea was filled with insurrection; judas, simon and athronges led rebellions and acclaimed themselves kings, and josephus summarises: "anyone might make himself king as the head of a band of rebels whom he fell in with ... " 14 it cannot have helped jesus' cause that barabbas, whose freedom the crowd chose by passover custom rather than jesus', had been awaiting crucifixion for murderous insurrection. l5 nonetheless, despite the natural roman sensitivity to royal claims, pilate, according to luke,16 after questioning jesus about his kingship, decided in exercise of his arbilrium judicancis not to recognise the allegations as constituting an offence. luke's assertions here are supported by the evidence in mark's and john's accounts of pilate's reluctance to convict jesus}7 bearing in mind the febrile political atmosphere, the likelihood that the jews could prove that jesus had claimed to be messiah, and that jesus did not defend the allegation, this reluctance to convict is initially surprising. 18pilate probably did accept the jewish allegations of jesus' messianic claims, but perhaps could not take those claims seriously. the clue may lie in the mockery. the taunting of jesus and his adornment in royal trappings by the soldiers of both pilate and herod 19 (infra) suggests that neither pilate nor herod could conceive that the humble galilean peasant who refused to defend himself against a capital charge, could be a threat to rome or to law and order, whatever titles he might care to give himself. 10. acts 25, 18-20. 11. indeed, luke relates at 20,20 that the spies who asked jesus about tribute to caesar intended to preserve his reply so as to deliver him up to the jurisdiction of the governor. ' 12.15,3. 13. mark 15,2; luke 23,3: john 18,33. 14. anciquities 17,273-85. 15. 15,7. 16.23,4. 17. mark 15,9,14; john 18,31,39; 19,6. 18. pilate might have been less reluctant to convict jesus if he had known of the people's earlier intention reported by john: "perceiving then that they were about to come and take him by force to make him king, jesus withdrew again to the hills by himself' (6,15). 19. mark 15,17-19; luke 23,11. 16 the trials of jesus of nazareth so, on learning that jesus came from galilee, pilate sent him to herod (antipas) who happened to be in jerusalem at the time.20 proceedings before herod antipas the ignorance of the other evangelists concerning these proceedings should not constitute counter-evidence to luke's assertions since even mark was writing over 30 years after the tria1.21 however, if there was no possible reason why pilate should consider that herod could claim jurisdiction over jesus' case or that he should be offered jurisdiction out of courtesy, the absence would arguably be counter-evidence. accordingly, the conflict of laws will be considered. it is commonplace to-day for a court to exercise criminal jurisdiction over any person present in its territory if the crime is alleged to have been committed in its territory; indeed, the ground for jurisdiction is the commission of the crime in the territory, and the accused who has left the territory may be extraditable from his country of refuge. it seems likely thatforum delicti was also the basis of criminal jurisdiction in the early years of the roman empire, but that with the growth of legal theory the concept of a person being triable in the province of his residence (forum domicilit) arose.22 it is unlikely, however, that the courts of an accused's country of residence ever had jurisdiction to the exclusion of the courts of the place of commission of the act, since it is usually the law and order of that place which is jeopardised. in the times of trajan (a.d.98-117) or hadrian (a.d. 117-138) the jurist celsus wrote that it was clear that the governor of the province in which the act was done ought to handle it; he added that some governors sent the accused back to his province of origin after a preliminary investigation, but that this should only be for special reason.23 however, the position may well have been more fluid eighty years or so earlier in jesus' day, so we should not allow the uncertain evidence of the law to outweigh luke's evidence. moreover, josephus notes the formidable influence of herod the great, antipas' father, beyond his realm, saying, "no other sovereign had been empowered by caesar, as he had, to reclaim a fugitive subject even from a state outside his jurisdiction. "24 it may be that pilate, knowing of antipas' father's unusual privilege of extradition, offered antipas jurisdiction over jesus, a man from his tetrarchy,25 as a courtesy; this would accord with luke's report that their previous enmity was dissolved that day.26 the weight of luke's evidence concerning pilate's transfer 00esus to antipas is increased by his apparent accuracy over detail in the report. his assertion of hostility between pilate and herod is supported by evidence of an incident 20. luke 23,6-7. 21. see n. 4 (1). 22. see generally on this conflict point, sherwin-white, supra n. 43 (i), pp. 29-31. 23. d.48.3. ii. 24. war 1,474. 25. a tetrarchy, literally government of a quarter of a territory, had come in roman times to mean merely the area governed by a minor native dependent ruler. 26.23,12. 17 the denning law journal probably occurring c. a.d .31 which is recorded by the alexandrian jewish writer, philo (c. b.c.20-a.d.50). according to philo, four sons of herod the great (of whom antipas would clearly be one) protested to pilate on behalf ofthe enraged populace when pilate introduced into herod's palace in the holy city religiously offensive votive shields. moreover, they sent letters of complaint to emperor tiberius who severely rebuked pilate and ordered the removal of the shields to pilate's palace at caesarea.27 a sourness in pilate's previous relations with herod is consequently credible! that herod accepted the offer of jurisdiction is supported by luke's report that he questioned jesus at length, and that the chief priests and scribes were allowed to make their accusations.28 admittedly, his transfer of jesus back to pilate would be consistent with a refusal to adjudicate, but there seems to be no reason to doubt luke's assertion that the sending of jesus back indicated that herod found him innocent.29 further, a rejection of pilate's offer of jurisdiction would hardly have produced the reported repair of their relations. again, luke's report that herod desired to see jesus and to witness him work a miracle,30 seems credible since mark reports that when herod heard of jesus' ministry, he believed that john the baptist whom he had beheaded, had been resurrectedpl but jesus was as reticent before herod as before pilate so that herod mocked him, clothed him like a king, and returned him to pilate. 32 luke does not state the nature of the accusations made by the chief priests and scribes before herod. like pilate, herod would not normally33 have been concerned with breaches of jewish religious law, though partially jewish himself,34 since the local sanhedrins would adjudicate upon such matters in his tetrarchy.35 equally, while he assiduously curried favour with emperor tiberius,36 it is doubtful whether he would have been particularly disturbed by the allegations that jesus forbade the giving of tribute to caesar. he would have been 27. legario, 299-305. a grievance of herod may have been pilate's slaughter of galileans who were in jerusalem to sacrifice (luke 13,1). 28.23,9-10. 29. although the party who supported the return of the herodian dynasty to power in judaea (the herodians) had, according to mark, plotted with the pharisees to kill jesus early in his ministry (3,6), and attempted with them to incriminate jesus over paying tribute to caesar (12,13-17). cf., the doubtful story of antipas' father's intent to kill the baby jesus (matthew 2,7,16). 30. 23,8; cf. 9,9. 31. 6.16. 32. luke 23,11. 33. although, as in the case of the errant shields noted above, he was willing to complain of such a breach if it would bring him political advantage in favour with the people or embarrassment of an enemy. 34. his mother, malthake, was a samaritan but his father, herod the great, was a descendant of the idumaeans who were forcibly converted to judaism by john hyrcanus c. 130 b.c. 35. schurer, supra n. 23(1), vol ii, p. 184 et seq.; sherwin-white, supra n. 43(1), p. 142. 36. most notably in the negotiations between vitellius, governor of syria, and the king of the parthians; herod sumptuously entertained both in a tent on the new bridge overthe euphrates, and then sent a complete report of the negotiation to emperor tiberius, completely up-staging vitellius whose function it was to report (josephus, antiquities 18, 104-5)! 18 the trials of jesus of nazareth more alarmed by the allegations that jesus was perverting the people, and claiming to be a king. as already mentioned, according to mark,37 herod believed jesus to be john the baptist returned to life, and this was probably because jesus' preaching and attraction of the crowds was reminiscent of john. it was because herod had feared that john's preaching and influence over the people would lead to a rebellion, that he had imprisoned john,38 although a contributory factor was probably john's fierce condemnation of herod's marriage, in contravention of jewish law, to his half-brother's wife.39 accordingly, it seems likely that the accusations of the jews before herod would be that jesus had been inciting the jews of galilee to rebellion, and claiming there that he was a king. luke reports that jesus had previously been warned to leave galilee because herod wanted to kill him,40 so that herod's return of him to pilate must have been due to a wish for strategic reasons not to disagree with pilate, or because on actually meeting jesus, he could not, as suggested above, treat him as a credible threat to law and order. perhaps if pilate had not been involved, and herod himself had arrested jesus in galilee, herod would have imprisoned or killed jesus without trial. his arbitrary treatment of john shows that executive action rather than judicial enquiry was his approach to situations affecting law and order. josephus writes of john's end: "herod decided therefore that it would be much better to strike first and to be rid of him before his work led to an uprising, than to wait for an upheaval, get involved in a difficult situation, and see his mistake."41 pilate's judgment all the evangelists attest pilate's wish to release jesus. in mark and john, pilate suggests to the jews that he should release jesus pursuant to the annual amnesty for one prisoner at the passover, but the jews demand instead the release of barabbas, the rebel. 42in luke, the jews cry outfor barabbas' release although the passover amnesty is not mentioned.43 there does not appear to be any jewish or other source which supports the evidence of a passover amnesty, but the evidence of mark and john that it prevailed in jesus' time is not opposed by contrary evidence. john's assertion is compelling that it was the jews' warning that ifhe released jesus he was not caesar's friend, which caused pilate to change his mind and order 37.6,16. 38. josephus, antiquiries 18, 118-119. 39. mark 6,17-18. 40. 13,31, and see n. 29(2). 41. ibid .. if, indeed, john was beheaded because of herod's rash vow to salome, then arbitrariness was compounded with caprice (mark 6,21-28). 42. 15,9; 18,39. 43. 23,18. some manuscripts of luke's gospel do contain the explanation, "now he was obliged to release one man to them at the festival", but it is usually considered a scribal gloss conforming the text with mark 15,6 and manhew 27,15. 19 the denning law journal jesus' crucifixion.44 his failure to heed this warning might well have reverberated in rome, and its likely authenticity is heightened by it being so politically apposite in this period. according to josephus, julius caesar in his aforementioned decree appointing hyrcanus and his sons to be ethnarchs and high priests, declared that they should be "numbered among our particular friends", and philo refers to agrippa, (grand-son of herod the great) as a friend of caesar also in a political rather than a personal sense.45 the historicity of the gospel evidence about pilate's judgment is supported by the evidence of roman law. thus, because the cognitio extra ordinem originated in the governor's executive action by virtue of his imperium, the governor rather than pronouncing a verdict of guilty or not guilty, simply ordered the penalty. pilate, following this procedure, ordered jesus to be scourged and delivered him to be crucified.46 again, it conformed with jewish law that pilate, in luke, declared that because nothing deserving death had been done by jesus, he would merely chastise him and then release him.47 for although it sounds bizarre to a modern western lawyer that an accused, found to have done nothing criminal, should be chastised, this was a permissible option in the exercise of coercitio (the ruler's enforcement of order) as contrasted with cognitio (judicial investigation of facts, possibly followed by penalty). there were three levels of beating lusus (cudgels),flagella (whips) and verbera (lashes). the beating with lusus being the least painful of the three, was the executive action linked with a warning, so luke's report of pilate's proposal here accorded with roman practice. not surprisingly, a severe beating accompanied the capital sentence, so that mark is precise and correct in asserting, "having scourged jesus [pilate] delivered him to be crucified. "48 conclusion this attempt to weigh the evidence of the gospels, of other roughly contemporaneous writers, and of jewish and roman law, suggests that on a balance of probability the course of the trials was as follows. 1. jesus was arrested by order of the chief priests of the jews. 2. he was found guilty by the sanhedrin of blasphemy on the evidence that he had threatened to destroy the temple, and he was adjudged worthy of death. 3. the chief priests or other agents of the sanhedrin alleged before pilate that jesus had perverted the nation, forbidden the giving of tribute, and claimed to be the king of the jews. 44. 19,12-13. 45. in flaccum, 40. 46. mark 15,15; luke 23,25; john 19,16. 47.23,15-16. 48. 15,15. 20 the trials of jesus of nazareth 4. initially, pilate in exercise of his discretion under the cognitio procedure refused to accept that these allegations showed that jesus' claims constituted a threat to roman dominium and therefore a crime, and he sent jesus to herod, tetrarch of galilee, who agreed with him. 5. finally, pilate, persuaded by fear of the political consequences to himself if he did not punish an alleged native king, ordered that jesus be scourged and crucified. during this survey we have observed how (a) to achieve jesus' death without outraging the pharisees and people, the chief priests had to secure his conviction for a jewish offence deserving death, and then persuade a roman court that he was guilty of a roman capital offence; that (b) the offence of threatening the temple was not punishable by rome, while the offence of sedition alleged by the jews before pilate, was not criminal in their own courts; that (c) a roman governor was willing to cede jurisdiction to a neighbouring native puppet ruler; that (d) pilate's preference to take executive action by warning jesus and ordering chastisement, was over-ridden by the jews' demands for the penalty of crucifixion; and that (e) greek secular culture, represented by a roman provincial governor, was confronted by theocratic jewish culture which, nevertheless, by its crowd averred, "we have no king but caesar." the conflict of laws, jurisdictions and cultures thus revealed were tragically symbolised in the crucial superscription (attested by all evangelists49 and conforming with roman practice), "jesus of nazareth, the king of the jews" which, adds john,50 was written in hebrew, in latin and in greek. 49. mark 15,26; luke 23,38; john 19,19. 50. 19,20. 21 pornography: a plea for law reform susan edwards * introduction the growing effluvium of violent pornography in our midst, the inability of the obscene publications act 1959 to effectively curb this incoming tide, the unwillingness of the director of public prosecutions to prosecute the publishers of the books american psycho and juliette on the grounds that there is no reasonable prospect of conviction and the recent misplaced comments of mr. michael jack of the home office that in matters relating to pornography we have nothing to fear from europe, prompts me to look once again at the pornography debate and current legislation.l this article proceeds, first, with an overview of the nature of the pornography flooding the domestic market; secondly, with a re-statement of the argument extended by those who see intervention of the law in this area as an anathema; thirdly, proceeds to examine the interpretation of the obscene publications act 1959 in decided cases; and finally concludes with some modest proposals for reform. what is pornography today? what is considered pornographic today is indeed a very different species compared with what was considered pornographic a century ago or even what was deemed pornographic when the williams committee2 were deliberating in 1979. moreover, we live in a very different ideological and political climate. for example, in the 19th century women had no locus standi, and no voice. today, whether enforced or not we have legislation which criminalises racial hatred,3 prohibits indecent and racist chanting4 and allows women redress from discriminatory practices.5 we have a political climate in which it is said women have a voice. that voice is unanimously saying "no" to pornography. * senior lecturer in law, university of buckingham. l. s. edwards, "a plea for censorship", n.l.j. (1991), 1478. 2. the report of the committee on obscenity and film censorship, cmnd. 7772 (1979). 3. public order act 1986; race relations act 1976. 4. football (offences) act 1991, s. 3(i). 5. sex discrimination act 1976. 41 the denning law journal i, pornography as sex pornography is considered by those who know only of 'soft pornography' to be exclusively a matter of sex, a matter of the erotic, of physical intimacy, of intercourse, in which both men and women play an equal part, and wherein the message being conveyed in the visual and written script is that she desires what is being done to her. and thus 'soft pornography' is a matter of freedom and is a matter of personal choice. in this we are misled and deliberately so. many literary authorities have been similarly misled. for d. h. lawrence:6 "pornography to one man is the laughter of genius to another." montgomery hyde wrote:7 "it is generally agreed that the essential characteristic of pornography is its sexuality. " this is the patriarchal illusion which is created. it is an illusion which those who make and profit from pornography must sustain if the institution is to survive. sex hatred, sex abuse, sexual insult, must be formulated and contextualised within the arena of 'sex' in order that the exploitation, degradation and violence becomes obscured and when apparent must be understood as action the victim desires and has precipitated, thereby conflating her victimisation through her alleged complicity. above all, pornography must be constituted outside the realm of reality and constructed instead as part of a fantasy world. it is in the interest of the pornography profiteers that 'soft pornography' becomes the sample case on which we judge all pornography and what we understand pornography to be and around which we focus the debate of censorship and of freedom. catherine mackinnon,8 the american feminist lawyer and jurisprudent, identifies the way in which the parameters of the debate have been so cleverly articulated: "pornography has been considered a question of freedom to speak and depict the erotic, as against the obscene or violent." ii, pornography as violence pornography, whether portraying or depicting violence, is not about sex. it is about violence. the nature of violence is sexualised from the manner in which it is inflicted, in the nature of the pleasure it is designed to deliver to the observer, and 6. cited in h. montgomery hyde, a hisrory of pornography (1964), p. 10. 7. ibid., p. 15. 8. c. a. mackinnon, "feminism, marxism, method and the state: an agenda for theory", (1982) signs, vol. 7 no. 3, 515-544 at p. 531. 42 pornography: a plea for law reform in the 'pleasure' it is falsely portrayed as delivering unto its victims. mackinnon writes:9 "in pornography, the violence is the sex." iii. pornography as metaphor pornography is also a powerful medium of communication and propaganda. it communicates sexual and violent scenarios, and sexualises the subordination of women. andrea dworkin,lo the feminist anti-pornographer, writes: "in the subordination of women, inequality itself is sexualised: made into the experience of sexual pleasure, essential to sexual desire." pornography socialises men by conflating sex with violence, and by presenting the woman in the pornography as always wanting or secretly desiring what is happening to her, thereby reducing mens' responsibility for any of the harm inflicted, providing them with a vocabulary of excuses and justifications which render the element of exploitation and degradation non-existent by making the harm legitimate through her consent. i i this is the message pornography communicates. dworkin writes:12 "the insult pornography offers, invariably, to sex is accomplished in the active subordination of women: the creation of a sexual dynamic in which the putting-down of women, the suppression of women, and ultimately the brutalization of women, is what sex is taken to be." there is not only the harm done to the person filmed in the pornography but the social harm perpetrated by the message which is being sold again and again, and again. this message educates men about sex and about their relation to women. this message is a lie. it is just as much a lie as was freud'sl3 conclusion that women are narcissistic, masochistic and passive. it took the psychoanalyst, karen horney,14 to argue that those traits of womankind were the product of her social and politically situated self rather than any innate trait. jacques lacan 15 proposed instead, by reversing the freudian method that unconsciousness preceded language, that language preceded the unconscious. adapting this lacanian formulation as a metaphor for pornography, pornography in part precedes our 9. c. a. mackinnon, "not a moral issue", (1984) yale law and policy review, vol. ii no. 2, 321-345 at p.343. 10. a. dworkin, "against the male flood: censorship, pornography and equality", (1985) harvard law journal, vol. 8, 1-29 at p. is. ii. see laurie taylor, "the significance and interpretation of replies to motivational questions: the case of sex offenders", (1972), sociology no. 6,12-29. 12. dworkin, supra n. 10, at p. 9. 13. s. freud, new imroductory lectures (1974), p. 116. 14. k. horney, feminine psychology (1967). 15. j. lacan, the four fundamemal concepls of psychoanalysis (1977). 43 the denning law journal sexual relations, communicating to men a conflation of sex and violence and a pleasure in that conflation. thes scenar£os then form part of the socially structured fantasy world. pornography creates and shapes mens' sexual fantasy and pornography provides the script for transforming that fantasy into reality. censorship, freedom and harm freedom for many is a philosophical idea, an abstraction without limitation, an ideal to be defended and upheld and an ideal which can become dislocated from the real world in which freedoms are concretised. as voltaire16 is said to have declared: "i disapprove of what you say, but i will defend to the death your right to say it. " i am sure that freedom of thought and conscience does not embrace freedom to abuse and debase women and children. freedom is quintessentially about power. it is not something which can be given by one human being to another. nor is it something which can be denied by one of another. the freedom being defended in pornography is specifically designed to uphold the power of those to subordinate, abuse and insult women. it is freedom to degrade and abuse which is the freedom which is so zealously defended and guarded. the freedom defended has nothing to do with the faceless notion of choice, which is the argument pornographers prefer to advance, that people should be free to read and see what they like. it has little to do with political and intellectual freedom. this is the fundamental confusion. the principle expanded in the work of john stuart milll7 that, "the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others . . ." has provided the philosophical and intellectual rationale for legal intervention and non-intervention. the late lord devlin'sis contribution to this philosophical question of law and morality was similarly premised on the view that the law should intervene only when there was demonstrable harm. pornographers have dodged the loaded question of 'harm', intellectually orchestrating the debate around the neutrality of 'choice'. yet it would appear that current interpretation of obscenity legislation protects sexual violence exploitation and the 'harm'. consider, for example, that if the 16. commonly attributed to voltaire though actually made up by c. s. tallentyre. drawn to my attention by my colleague, owain blackwell. 17. j. s. mill, on liberty, 13 (c. shields ed. 1958). 18. p. devlin, the enforcement of morals (1959). 44 pornography: a plea for law reform pornography is in the written word and if the material is considered so disgusting that it is deemed likely to repulse the ordinary man then it is protected through a decision not to prosecute. in england and wales material which depicts sexual violence is prosecuted and convictions follow only if the material is likely to "deprave and corrupt", and is then considered 'obscene' within the meaning of the statute. in the u.s., the first amendment19 similarly guards and defends the free speech of the pornographer and the free choice of the pornography consumer. those of us who make a plea for censorship are depicted as right wing, repressive, anti-sex and anti-homosexuality. censorship in some of its guises smacks of state repression, police brutality and the silencing of political opposition. but what happens if the state are the police and the mob that howls at the door? a pro-censorship position does not emerge out of a vacuum but is a specific response to a particular position. censorship may be defining your limits while recognising my freedom. censorship is as misunderstood in western europe as it is in the united states, writes dworkin:20 "censorship is deeply misunderstood in the united states, because the fairly spoiled, privileged, frivolous people who are the literate citizens of this country think that censorship is some foggy effort to suppress ideas. for them, censorship is not something in itself an act of police power with discernible consequences to hunted people; instead, it is about something abstract the suppressing or controlling of ideas." our freedom, that is the freedom of women, can only be recognised by limiting the choices of men. dworkin,2' in her evidence to the 1986 meese commission on pornography, educates in communicating to us the real nature and content and harm of pornography: "my name is andrea dworkin. i am a citizen of the united states, and in this country where i live, every year millions of pictures are being made of women with our legs spread. we are called pussy, our genitals are tied up, they are pasted ... in this country where i live as a citizen, women are penetrated as animals and objects for public entertainment, women are urinated on and defecated on ... there is amputee pornography, a trade in 19. u.s. constitution first amendment. congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. 20. supra n. 10, at p. 3. 21. a. dworkin, personal testimony to the meese commission 1986. attorney-general report on pornography and prostitution. washington dc: us department of justice. 45 the denning law journal women who have been maimed in that way, as if that is a sexual fetish for men. in this country where i live, there is a trade in racism as a form of sexual pleasure ... black skin is presented as if it is a female genital, and all the violence and all the abuse and the humiliation that is in general directed against the female genitals is directed against the black skin of women." there is not a description of american pornography whereby we can switch off and say "but this isn't the pornography here amongst us." this is a description of the very kind of pornography being sold and consumed in the u. k.. and the more the material reaches the far limits of human endurance and suffering, the more heightened becomes, not our sensitivities, but our tolerance level, and the more blunted our senses as the legal watershed rises, embraces and condones more and more explicit sex and, more worryingly, more and more insult, degradation and harm to women and children. it is just not clear any more that the law in its present form and the crown prosecution service, predicting the response of juries in taking a decision not to prosecute, thereby usurping the jury, can ensure that this kind of material is censored. the harm pornography does is specific. it is physical. it is ideological. in the production of pornography women and children suffer harm and abuse. the meese commission22 reached this conclusion: "substantial exposure to sexually violent materials as described here bears a causal relationship to anti-social acts of sexual violence and, for some sub-groups, possibly to unlawful acts of sexual violence." the nature of the material itself demands that we take this matter out of the realms of choice. as geoffrey robertson23 has wisely remarked: " ... it is not always necessary to fight to the death for the right to debase others." but how can we prevent this incoming tide? has the law in this area been considered desirable, and how far has it been successful, if at all? and what is to be done about curbing this world trade in pornography? engaging with the law whilst feminists are unanimous in saying 'no' to pornography, there is a deep schism over the role of law in its regulation. after all, the law has not earned itself any points in its protection, defence or equal treatment of women. and, there are plenty of deeply degrading images of women in popular cultural presentation 22. ibid.: attorney-general report on pornography. 23. geoffrey robertson, obscenity, p. xviii. 46 pornography: a plea for law reform which would be left untouched by any legislative intervention. we have seen over recent years ample evidence that the criminal law is woefully inadequate to deal with the incoming tide of violent and sadistic depictions of the sexual abuse, killing and torture of women and children currently found in the written word, in film and in video masquerading under the protective guise of 'art and literature' or else protected by a belief that the material is so terrible that the effect is one of shock rather than to deprave and corrupt. in short, criminal law in this area is a dead duck. the limitations of existing law, both here and in north america, have led to divers efforts to reform obscenity legislation and to develop forms of control other than those currently available within the criminal law. in the u.k., antipornography campaigners have sought to strengthen existing criminal law and at the time of writing a private members bi1l24 is being discussed in the house to develop alternative legal controls by adapting existing sex discrimination legislation. law reformers in other jurisdictions have sought a solution in the civil law. it has been a major consideration of the critique of law by contemporary feminists to transform law in a way which embraces womens' experiences and is therefore more consonant with their lives.25 the defects within the existing legislation are highlighted, yet again, by the recent decision of the director of public prosecutions not to prosecute the publishers of de sade's juliette,26 a vile book glorifying in the grossest way the torture and killing of children. details ofthe book circulated to m.p.'s in july 1992 provided the galvanising force behind ministerial pressure for a revision of existing legislation. a similar decision to prosecute was taken in respect of bret ellis' american psycho.27 the defects however lie not only within existing legislation but with cultural and governmental apathy and a slavish adherence to the view that obscenity is a matter for private members and not for the government. current legislative provision regulating obscenity straddle several statutes. some statutes embrace a wide definition of obscenity as where material is considered (indecent and obscene) and applies to material imported which is not of eec origin, and to material sent through the post.28 in 1959 the liberalisation of the law in england and wales came with the introduction of the obscene 24. private members bill, currently being debated at the time of this article going to press. 25. see s. edwards, policing domestic violence (1989); susan edwards, women on trial (1984); helen kennedy, eve was framed (1992); martha fineman and nancy sweet thomadsen (eds.) at the boundaries of law (1991); carol smart, feminism and the power of law (1989); marianne wesson, "sex lies and videotape: the pornographer as censor", (1991) w ashingron law review, vol. 66, p. 913. 26. marquis de sade,julieue, arrow, london. 27. b. ellis, american psycho, picador, london. 28. there are four separate rungs of procedure: first, legislation founded on the 'indecent and obscene' test, customs consolidation act 1876, s. 42; the post office act 1953,s. 11; secondly the common law relating to 'outraging public decency'; thirdly, offences relating to children, protection of children act 1968; fourthly, the obscenity legislation covered by the obscene publications act 1959 and 1964 depends on the 'deprave and corrupt' test where the 1964act extends the legislation to possession of an obscene article. 47 the denning law journal publications act, whilst in the united states liberalisation occurred within the u.s. supreme court decision in roth v. united states,29 which held that the test for obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." in accordance with the obscene publications act 1959:30 " ... an article shall be deemed to be obscene ifits effect or (where the article comprises two or more distinct items) the effect of anyone of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all the relevant circumstances, to read, see or hear the matter contained or embodied in it." by section 53 of the criminal law act 1977cinematographic exhibitions were brought into the ambit of the 1959 and 1964 acts.3l and by 1990, the broadcasting act extended those provisions to television broadcasting.32 in an attempt to ensure uniformity in the application of the law throughout england and wales, the criminal law act 1977, section 53, provided that a prosecution under section 2(1) of the 1959 act shall not be instituted except by or with the consent of the d.p.p .. the gradual seizing up of the law has led to a decrease in prosecutions and an increase in seizure and forfeiture. in respect of seizure and forfeiture powers, under section 3 of the 1959 act, the police may apply to a justice of the peace who may issue a warrant. the criminal justice act 1977, section 25, provides that a warrant under section 3 may not be issued except on information laid on or on behalf of the d.p.p. or by a constable. these provisions followed the successful private forfeiture of the book last exit to brooklyn by hubert selby.33 since 1977 the use of seizure and forfeiture as a means of control has increased. to expedite matters, given the number of items seized in each case, only a selection of sample material is accepted by the courts in evidence, following r. v. crown court at snaresbrook.34 in this case, police selected sample items to be put forward as prosecution exhibits in each class. the appellant could, ifhe disagreed with this procedure, put forward two samples of his own. the appellant objected to the procedure and sought a declaration that this was wrong in law and sought mandamus. the key provisions are contained within the obscene publications act. under section 3 it is for the person objecting to the forfeiture to show why any 29. roth v. united states 237 f 2d 796 (1957). 30. obscene publications act (1959), s. l(i). 31. criminal law act 1971, s. 53; obscene publications act 1964. 32. broadcasting act 1990, s. 162 (1). 33. last exit to brooklyn: r. v. calder and boyars ltd. [1968] 3 w.l.r. at p. 985d. 34. (1984) 79 cr. app. r. 184. see also r. stone, "obscene publications: the problems persist", [1984] crim.l.r. 139. 48 pornography: a plea for law reform article should not be forfeited. owing to the increasing difficulties of bringing successful prosecutions under section 2 of the obscene publications act, forfeiture proceedings are preferred. i. statutory interpretation for a successful prosecution under section 1 of the 1959 act the prosecution must adduce that the article in question is obscene. this turns on whether the article is likely to "deprave and corrupt". this requirement is a formula derived from the judgment of cockburn cj in r. v. hicklin:35 " ... i think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and in whose hands a publication of this sort may fall." after the passage of the obscene publications act 1959 through parliament the "deprave and corrupt" test, although still undefined, became transformed from a matter which could largely be assumed if the material was deemed to be obscene, to one which could only be decided on by the effect of the material alone. judges have had great difficulties in interpreting the true meaning and intention of parliament as embraced by this test, a phrase neither defined in statute nor in the case law. in the prosecution of penguin publishers following their publication of d. h. lawrence's lady chatterley's lover inr. v. penguin books ltd., byrne j,36 applying a literal interpretation, told the jury: " ... to deprave means to make morally bad, to pervert, to debase, or corrupt morally. the words 'to corrupt' mean to render morally unsound or rotten, to destroy the moral purity or chastity of, to pervert or ruin a good quality, to debase, to defile .... " rogers j in the prosecution of the publishers of hubert selby j r's the last exit to brooklyn, in r. v. calder and boyars37 at the trial said: " ... those other vital words 'tend to deprave and corrupt' really mean just what they say. you have heard several efforts to define them. 'tend' obviously means 'have a tendency to' or 'be inclined to'. 'deprave' is defined in some dictionaries, as you have heard, as 'to make morally bad; to pervert or corrupt morally' and the word 'corrupt' has been defined as 'to render morally unsound or to pervert' ... " 35. r. v. hicklin (1868) l.r. 3 q.b. 360, at p. 371. 36. lady chatterley's lover: r. v. penguin books [1961] crim.l.r. 176, at p. 224. 37. supra, n. 33. 49 the denning law journal the appeal court found no fault with this direction, although allowed the appeal on other matters which related to the absence of the trial judge's proper direction respecting the 'public good' defence under section 4. lord wilberforce in whyte38 found the phrase somewhat opaque and incapable of precise definition. outlining the way in which the courts have dealt with the term, he said: " ... first, that no definition of 'deprave and corrupt' can be provided (r. v. calder and boyars ltd.), though the words are meant to be strong and emphatic (see knuller (publishing, printing and promotions) ltd. v. director of public prosecutions per lord reid and lord simon of glaisdale); secondly, that judges or juries must decide for or against a tendency to 'deprave and corrupt' as a question of fact and must do so without expert, i.e. psychological or sociological or medical, advice (r. v. anderson)." ii. the effect of the material in arriving at a decision on obscenity a number of other considerations provide the context in which the material 'on trial'is to be judged. the article must be taken as a whole, that is the whole of the article, or book, or film must be considered in its context. however, the key matter or litmus test upon which all seems to turn is the likely effect of the material, the effect being defined as the likelihood or tendency that the article will deprave and corrupt. aversion in the form of shock, loathing, revulsion or disgust does not qualify. on the contrary, the aversion potential or aversion effect has actually been used as a defence against an allegation of the likelihood that an article will deprave and corrupt and is therefore obscene, and also as a justification for the decision taken not to prosecute (discussed infra). in considering whether an article, when read as a whole, is obscene the court must take into account the effect on the likely audience. having considered all these matters, an article is considered obscene for the purposes of the act whether published for gain or not. judges in consideration of the 'effect' of such material have considered procurement of sexual fantasy, sexual arousal, leading morally astray, and criminal conduct as of relevance. whilst physical illness, shock, distress and trauma are of course effects, they have been deemed of no relevance. a. fantasy: the effect on the mind given the ambiguity and uncertainty within the statute and lack of guidance in case law, courts are not sure what precise effect they are looking for, and the matter still remains indeterminate. lord wilb~rforce,39 whilst he queried in whyte whether the effect might include imitative behaviour of a criminal kind, preferred the effect on the mind, as of central relevance and the primary target: 38. d.p.p. v. whyte and another [1972] 3 all e.r., at p. 19a. 39. ibid., at pp. 18j and 20c. 50 pornography: a plea for law reform "it is criminal conduct, general or sexual, that is feared (and we may note that the articles here treated of sadistic and violent behaviour) or departure from some code or morality, sexual or otherwise, and if so whose code, or from accepted or other beliefs, or the arousing of erotic desires 'normal' or 'abnormal', or as the justices have said 'fantasies in the mind .. .' influence on the mind is not merely within the law but is its primary target." lord cross40took this further into the realms of sexual arousal: "it is, i think, reasonable to suppose ... that the products of such fantasies would in some cases be accompanied or followed by masturbation." b. lead morally astray in knuller v. d.p.p. 41the house of lords held the word 'corrupt' to mean to "lead morally astray". lord simon said: "corrupt is a strong word. the book of common prayer, following the gospel, has "where rust and moth doth corrupt". the words "corrupt public morals" suggest conduct which a jury might find to be destructive to the very fabric of society." c. imitation judges in obscenity cases have not held "deprave and corrupt" to imply that the effect is one of imitative behaviour, although rogers j42in r. v. calder and boyars did say that to deprave was "to make people do wrong acts". in contrast, the criminal and family courts both here and in the u. s., when dealing with the sexual offender or sexual difficulties within marriage, are unequivocable about the real life effects of such material. in r. v. holloway, lawton lj43said: "in the course of our judicial experience we have dealt with cases of sexual offenders who have undoubtedly been incited to engage in criminal activity and criminal conduct by pornographic 'hard porn'. those of us who have had to deal with matrimonial cases in the family division ... know that sometimes, matrimonial troubles are started by husbands who have been reading or seeing this kind of material and try to introduce in the matrimonial bed what they have read or seen. there is an evil in this kind of pornography. it is an evil which in our opinion has to be stopped." 40. ibid., at p. 25e. 41. knuller (publishing printing andpromorions) lrd. v. d.p.p. [1972] 2 all e.r. 898; [1973] a.c. 435, at p.491b. 42. hubert selby, lasr exir ro brooklyn (1987 edition), at p. vii. 43. r. v. holloway [1982] crim.l.r. 467. 51 the denning law journal u.s. case law shows that the courts and judges have been more robust and more convinced of a correlation. in hoggard v. swte:44 "we readily agree that the material was prejudicial. it could hardly be otherwise. but the argument that its probative value was lacking fades under scrutiny. this pornography and the offence being tried had a clear correlation: the pornography depicted deviate sexual acts of a forty two year old man and a six year old boy. more importantly, the pornography was used as the instrument by which the crime itself was solicited. the child was encouraged to look at the pictures and then encouraged to engage in it. the value of the evidence as proof of the crime is obvious." in the state v. herberg,45 where the defendant had tortured his 14 year old female victim (including cutting off her fingers, gagging, rape, choking) in ways too horrific to detail here, and where books of sadism and torture were found in his possession, the minnesota supreme court said: "it appears that in committing these various acts, th~ defendant was giving life to some stories he had read in various pornographic books." iii. the effect on whom? one of the major problems of the legislation has been the formulation of the effect of the material on a specific audience. the test of obscenity is both relative and subjective, thus reversing the hicklin formula, where once an article was deemed to be obscene the effect was presumed to follow. on the relative conception of obscenity, lord wilberforce46 in whyte had this to say: "both the policy and the language of the act have been plentifully criticised: the former we cannot question, and with the latter we must do our best. one thing at least is clear from this verbiage, that the act has adopted a relative conception of obscenity ... an article cannot be considered as obscene in itself: it can only be so in relation to its likely readers." kenneth jones ]47 reiterated this principle of relative obscenity in the case against the defendant company in respect of the film last tango in paris: "there is no absolute test of obscenity ... the test of obscenity is a relative one." 44. hoggardv. srare 277 ark 117,640 s.w.2d (1982), cert. denied, 460 u.s. 1022 (1983), cited in c. mackinnon, "pornography, civil rights, and speech", (1985) harvard civil righrs civil liberries law review vol. 20, no.1 winter, at p. 46. 45. srare v. herberg 324 n.w.2d 346, 347 minn. 1982 cited in mackinnon, supra n. 44, at p. 50. 46. whyre, supra n. 38, at p. 17c. 47. lasr tango in paris: arrorney-general's reference (no.2 of 1975) [1976] 2 all e.r. 753, at p. 757g. 52 pornography: a plea for law reform lord pearson48 however took a very different view. the meaning of 'obscene' was neither relative nor subjective. the obscene can be discerned by something inherent and by the purpose or intention of the material in question: "the question whether an article is obscene depends not only on its inherent character but also on what is being or is to be done with it." when considering the likely effect of the material, case law has not treated all recipients with the same regard. a distinction is made between persons not exposed to such materials and therefore considered not depraved and corrupted, although potentially capable of being so depraved and corrupted, and persons considered already beyond the pale, well familiarised with such materials and thereby, some have argued, incapable of being depraved and corrupted. an extraordinary illogic! so in a world of bosch' ian people, the obscene publications act would be dead and redundant since there would be no one to deprave or corrupt, the depraved and corrupted being already depraved and corrupt! this was precisely the point persuasively argued by the defence in whyte. the fact that young people were excluded from the bookshop in question was taken to mean that those entering the bookshop were already beyond being depraved and corrupted and therefore no effect on the likely audience could properly be adduced. the prosecution appealed to the house of lords. lord wilberforce49 alluded to the obvious absurdity of this position. the act, he said: " ... could never have been intended to except from the legislative protection a large body of citizens merely because, in different degrees, they had previously been exposed, or exposed themselves, to the 'obscene material' ." in assessing the likely effect 'on whom', the courts have also considered a specific category of persons, viz. those persons most likely to see, hear or read it. the target audience then is "persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it. "50 clearly in the case of material for sale in an adult bookshop prohibiting persons under 18,the likely audience cannot include the under 18and so the courts are not considering the effect on this age group of the material before them. accessibility and availability of the material become at least theoretically key issues in this assessment of target audience. lord wilberforce51 in whyte took the view that: 48. whyte, supra n. 38, at p. 20h. 49. ibid., at p. 199. 50. obscene publications act 1959, s. 1. 51. whyte, supra n. 38, at p. 199. 53 the denning law journal "in the case of a general shop, open to all and sundry, and offering all types of books, common sense suggests the conclusion that likely reasons are a proportion of all such persons as normally resort to such shops ... " consideration of accessibility and availability are also influenced by the price of the material, following the interpretation of "all relevant circumstances" as per byrne]52 in r. v. penguin books. when referring to lady chatterley's lover he said: "3/6d you might think would be putting this book within the grasp of a vast mass of the population. they would nevertheless find them physically within their grasp and therefore find themselves arguably within the definition of 'primary audience'." however, it is to be noted that in practice this consideration has been lamely applied both in arriving at a decision of 'obscene' and in the restriction of sale. consider, for example, the availability of 'soft pornography' to the eight year old child. many high street newsagents display this material traditionally on the top shelf although there is still nothing in law requiring them to do so. soft porn magazines are stocked in such quantities today that they take up two shelves and in the smaller newsagent these top two shelves may well be at shoulder height of the eight year old. in this case children are very much drawn into the pool of the likely audience and this would surely make such magazines a suitable case for prosecution. similarly in a family bookstore, such as dillons, it is to be expected that the family and, by definition, children are the target audience, situated as this chain store is in the high street shopping malls. and yet this bookshop still stocks copies of juliette 53and american psycho54 at a child shoulder height. it cannot be said that younger children are unlikely to be able to afford to purchase these books at £10.95 and £8.95 respectively. iv. taking into consideration any defence which may be raised a. section 4: public good. if there are not enough obstacles to prosecution then this section provides the author or the maker with a defence. section 4 entitles the author/publisher to adduce evidence that the article in question, even if considered obscene, is worthy of artistic or literary merit, a contradiction in terms. section 455 states: "a person shall not be convicted of an offence against section two of the act, 52. r. v. penguin books, supra n. 36. 53. juliette, supra n. 27. 54. american psycho, supra n. 27. 55. obscene publications act 1959,5.4. 54 pornography: a plea for law reform and an order for forfeiture shall not be made under the foregoing section, if it is proved that publication of the article in question is justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern." here the opinion of experts may be canvassed to affirm or negate this question. it cost the crown £1,131. 17s. 3d. to bring the test case r. v. penguin books ltd., which involved much expert opinion on the literary merit. byrne j,56 in the lady chatterley trial, in his summing up said: "you must consider the book as a whole. the mere fact you are shocked and disgusted, the mere fact you hate the sight of the book does not solve the question. " the jury returned a unanimous 'not guilty' verdict. the judge, however, had his say in making no order as to costs! section 4 is an important provision, the purpose of which is to defend and protect works of literature where sexual explicitness is quintessential to the narrative as in lady chatterley. there are few, if any, cases today where section 4 is used. potential section 4 cases are dealt with by non-prosecution. r. v. sylverie and gibson,57 known as the "human earrings" case, where human foetus' of three months gestation were freeze dried, made into droplet earrings and put on display in a private art gallery, might have been such a case if the accused had been proceeded against under the obscene publications act, or if their appeal to have the opportunity of such a prosecution had been successful. a public good defence was denied by otherwise charging and proceeding against the defendants via the common law offence of outraging public decency. b. ejusdem generis defenders of pornography frequently argue that the material has a social value in preventing excesses of behaviour and in providing a sexual outlet for men. in the 'bens books' trial the defence put forward the argument that pornography was for the public good because it had a therapeutic value. counsel for defence: this is a picture of a female in chains, tied up, and a naked man pointing a sword at the woman's genitals. dr. richards: this is for the public good because it produces a masturbatory situation. i would certainly prescribe it for a patient. counsel: picture of a naked man with a cat of ninetails striking a woman on her genitals. 56. cited in geoffrey robertson, obscenity, supra n. 23, at p. 41. 57. r. v. gibson and another [1990] crim.l.r. 738; [1991] 91 cr. app. r. 341. 55 the denning law journal dr. richards: this can stimulate a man. it has great therapeutic value. counsel: girl, with distress in her face, arms manacled, and has cuts, she is tied up. a man with a bayonet is inflicting cuts. dr. richards: i have known patients who could benefit by masturbating on this.58 inr. v. stanzforth andr. v.jordan58 the defence soughtto rely on section 4 and submitted evidence of the medically therapeutic value of obscene materials. the case of jordan was referred to the house of lords on a point of law of general public importance: "whether on the true construction of section 4 of the obscene publications act 1959 expert evidence is admissible in support of the defence under that section to the effect that pornographic material is psychologically beneficial to persons with certain sexual tendencies in that it relieves their sexual tensions and may divert them from anti-social activity." the house of lords held that to argue that such material was "medically therapeutic" was no defence. c. so evil so revolting: the aversion defence it has been argued that the capacity to deprave and corrupt becomes negated when the material depicted is so evil and revolting (an argument, i suggest was probably extended in discussions ofjuliette to which i return later). shock and disgust has been deemed both highly relevant and irrelevant. on the one hand, shock and disgust has been held not to solve the question: byrne j in r. v. penguin books60 and stable j in the trial of stanley kaufman's the philanderer. 61 at the same time, the shockability of the material has been crucial to a defence. in r. v. calder and boyars,62 the book, depicting homosexuality, drug-taking and brutal violence, was said not to incite others but rather to act as a deterrent. salmon lj, echoing the sentiment of the defence, said: "the only effect that it would produce in any but a minute lunatic fringe of readers would be horror, revulsion and pity ... " this argument was extended by mr. mortimer for the defence in the oz magazine trial, r. v. anderson.63 lord widgery cj, commenting on the status of 58. mary whitehouse, a most dangerous woman? 59. r. v. stanijorth, r. v.jordan [1976] 1 all e.r. 714; d.p.p. v.jordan [1977] a.c. 699. 60. r. v. penguin books, supra n. 36. 61. s. kaufman, the philanderer; r. v. martin seeker and warburg ltd. [1954] 2 all e.r. 683. 62. r. v. calder and boyars, supra n. 33, at 984b. 63. r. v. anderson [1971] 3 all e.r., at p. 1160h (oz magazine). 56 pornography: a plea for law reform the aversion argument, said: " ... in this court counsel argued, and this court held rightly argued, that the failure of the learned judge to put what one might call the aversion argument was fatal to the retention of the conviction." the failure of the trial judge to put this aversion 'defence' before the jury in summing up was the major ground for quashing the conviction. it seems that the aversion theory has often been put forward as a 'defence' under section 1 and in addition has been extended as a reason for not prosecuting. considering the latter, the aversion theory was extended by the attorney general to the house of commons in explaining his decision not to prosecute norman mailer's the naked and the dead. 64 again, this is also very likely to have been one of the considerations the present d.p.p. took into consideration when deciding not to prosecute the publishers of juliette and american psycho ... "in the light of the defences that may be raised. "65 the aversion test has been described by lord denning as a "piece of sophistry" .66 the pornography industry sales stands as a testimony to the fact that the aversion theory is indeed a piece of sophistry and fails, in my view, since whilst the average reader or reasonable man may be the test for deciding whether something is obscene it is erroneous to apply this same test to determine whether or not the average reader will be averse to the content of a book, film or video. there are plenty of non-average, non-reasonable persons for whom much of this material is bought for pleasure rather than mere idle curiosity and who are certainly not aversed. moreover, it is precisely the non-average, non-reasonable man who is fast becoming the norm. geoffrey robertson, in reference to mishkin v. new york, 67 shows how the u.s. supreme court pointed to the inherent fallacy of this argument, as per brennan j: "where the material is designed for and purely disseminated to a c1earlydefined sexual group, rather than the public at large, the prurient appeal requirement of the roth test is satisfied if the dominant theme of the material taken as a whole appeals to the prurient interest in sex of members of that group." v. beyond the fantasy debate the nature and content of the material available has changed since 1977. we are well beyond the fantasy debate. we are beyond depictions of heterosexual 64. n. mailer, the naked and the dead cited in robertson, obscenity, supra n. 23. 65. private correspondence dated 6th march 1992. 66. r. v. commissioner of police of the metropolis, ex parte blackburn [1973] 2 w.l.r. 43, at p. 48. 67. mishkin v. new york 383 u.s. 502 (1966), cited in robertson, obscenity, at p. 54, supra n. 23. 57 the denning law journal intercourse in explicitness which arouses. the material readily available in 1993 depicts imitatory violence, real violence, torture and assault in a context which some find sexually arousing.68 we are witnessing violent crimes on women and children on film which may result for some recipients in orgiastic relief and for others in the desire to imitate and to go beyond the realm of fantasy. the effect of such material shifts, as does the meaning of deprave and corrupt. whatever case law has decided, pornography is harmful and does lead to violence against women and children. the law still clings to the view that the test of obscenity is subjective and relative and not objective thereby failing to address the harm of pornography subsumed within it. meanwhile, as the anti-censorship lobby musters its forces, dworkin69 contends: "some women must die during the course of the debate you would like us to have." difficult to quantify, difficult to measure, nevertheless pornography has a quintessential responsibility for sexual violence against women. women and children are harmed in and because of the pornography,70 which continues to pour in from other countries masquerading under the 'freedom of trade' banner from the european community. the trouble with the obscene publications act is that it is drafted with the object of regulating matters of morality, sexuality, prurient and lascivious conduct otherwise known as obscenity and not with the object of regulating the kind of graphic depictions of extreme violence and torture. the 'deprave and corrupt' test envisaged was one which would be capable of drawing a distinction between a work of literary merit and works of smut, a distinction articulated by stable pi when summing up in the trial of stanley kaufman's the philanderer: "i do not suppose there is a decent man or woman in this court who does not wholeheartedly believe that pornography, filthy books, ought to be stamped out and suppressed ... but in our desire for a healthy society, if we drive the criminal law too far, further than it ought to go, is there not a risk that there will be a revolt, a demand for change in the law, and that the pendulum may swing too far the other way and allow to creep in things that at the moment we can exclude and keep out?" yet the test of obscenity is assessed not on the intrinsic nature of the material (so as to avoid drawing lines which are considered by some impossible to draw), but on 68. c. itzin (ed.), pornography: women violence and civil liberties (part three). 69. a. dworkin in a speech televised for channel 4, broadcast 6th november 1991. 70. c. itzin (ed.), supra n. 68. 71. r. v. marlin seeker and warburg, supra n. 61, at p. 688e. 58 pornography: a plea for law reform the subjective assessment of the likely effect of such material. since stable j's deliberations the material which masquerades under the banner of pornography has not merely widened from smut including explicit sex and nudity, but changed, to include the sadistic torture and killing of, and violence against, women and children, where the formula depends on a lethal conflation of violence and sex. there should be a reformulation of the object of concern, wherein not only an objective assessment of the material based on harm should be made but the purpose of the publication should also be a consideration; as per stable j in r. v. seeker and warburg:72 "you have to consider whether the author was pursuing an honest purpose . . ."; and lord pearson in whyte:73 "the question whether an article is obscene depends not only on its inherent character but also on what is being or is to be done with it." alas for the written word, which in the case of juliette describes in detail the dismemberment of women and hideous torture of children. american psycho similarly glorifies and luxuriates in the horrific killing of women. such books, the d.p.p. has decided, are unlikely to result in a conviction on the ground of the likely defences that may be raised. what defence is there to raise? and if there is a defence, and the law has facilitated one, the law promotes the intrinsic harm contained in these books. what these decisions raise is first the question of what, indeed if anything in the written word, would be considered prosecutable. secondly, they highlight a major lacuna in current legislation respecting the protection of children. whilst the possession of an indecent photograph of a child is a criminal offence,74 it is apparent that any act of murder, torture or sexual crime recorded and detailed in the written word is no offence at all. on the contrary, such crimes in print are protected. vi. law reform since the setting up of the crown prosecution service in 1985 the prosecutions under section 2 of the obscene publications act 1959 have actually declined from 583 in 1984, to 174 in 1990 (see tables 1 and 2). 72. ibid., at p. 688c. 73. whyte, supra n. 38, at p. 18g. 74. criminal justice act 1988, s. 160. 59 the denning law journal 0.. 00 0...... '<1'\000 1i"ir--'<i'oo'\nr--11"i c'"i--11"i\0\0 i -c'"in-r-o'\c'"i no'\o'\ 11"i --<; u•.. ;:l oen -c'"ic'"i i '<i'c'"in'<i' 00 no'\o'\ \0 --'0 0'\\00'\ i c'"io 00 nnn 00 0\ •.•.•.•.•....••'i"'"'"l.... \"i 00 0\.... "'"00 0\.... .... 00 0\.... n 00-<; u•.. ;:l oen 60 pornography: a plea for law reform moreover existing penalties are ineffective, as lawton lj in r. v. holloway75 conceded: "experience has shown ... that fining these pornographers does not discourage them. fines merely become an expense of the trade and are passed on to purchasers of the pornographic matter, so that prices go up and sales go on ... " so like shops' policy on theft, where the consumer pays for losses incurred by shoplifting, the pornography customer pays in price increases for fines incurred by the pornography industry in the advent of a court case. these recent decisions not to prosecute have understandably refuelled concern over the complete ineffectiveness and insurmountable difficulties with obscenity legislation in controlling and regulating pornography. recent efforts to reform the law in respect of pornography here and in america have straddled five positions. first, there have been developments in the us focusing on the harm done to those in the making of pornography.76 in 1983 andrea dworkin and catherine mackinnon drafted an amendment to the human rights ordinance of the city of minneapolis.77 their objective was to deal with pornography under city civil rights legislation as discrimination against women. the supreme court affirmed the court of appeal's decision to invalidate the amendment. in canada attempts to introduce anti-porn legislation have applied as the appropriate test the community standard of tolerance, and more recently have focused on the harm.78 secondly, there are also some who believe that the 'deprave and corrupt' test should be reformulated, that pornography causes harm and that the tendency to deprave and corrupt should be taken as given where harm is demonstrated. thirdly, parliament has recently turned its attention to reform of the law although the direction of the reform, which it is agreed is much needed, is as yet unclear. on 2nd july 1992, ms liz lynne, a passionate believer in freedom of speech, asked for an adjournment debate on pornography: "the public has been led to believe that our obscenity laws are strong. in fact they are a mess ... the law on books is useless."79 75. r. v. holloway, supra n. 43. 76. new york v. ferber 458 (u.s.) 747 1025 ct. 3348 1982 u.s. lexis. 77. minneapolis city council code of ordinances relating to civil rights, sub para. (gg) to s. 139,20. see also c. spaulding, "anti-pornography laws as a claim for equal respect: feminism, liberalism and community", (1989-90) berkeley women's law jo., vols. 3-4, p. 128. amendment invalidated in hudnul, mayorofcily of indianapolis, indiana, el. al. v.americanbooksellers assn. inc. el al. 475 u.s. 109 106 5. ct. 1172 (1986). 78. see attorney-general (canada) reporl of the special committee on pornography and prostitution in canada, vols. i. and ii, canadian government publishing centre. 79. hansard, ms lynne, 2 july 1992, 1061-1063, at p. 1062. 61 the denning law journal on 9 july 1992, mr. michael jack for the home office responded,80 gingerly conceding: "we believe that there is room for reform of the act". mr. jack has suggested that a possible revision could include the 'reasonable person' standard "a work's offensiveness to a reasonable person"81 although in trying to reassure, he said: "the suggestion that we will be obliged to accept supposedly lax continental standards in relation to pornography is simply misplaced. "82 however parliament at present seems decided that this is a matter for private members and not for government: "this is an area for private member initiative. "83 it is to be noted with consternation that earlier private members bills84 were driven into the sand due to lack of time. professor stephen cretney in 1990 outlined85 the pros and cons of the process of pri\{ate members bills as an instrument of law reform: "legislation on obscenity is by tradition left to private members and the government are reluctant rightly, i believe to set that tradition aside. "86 fourthly, it has been proposed that the sale of such material should be restricted and, like films, subject to certification. this certainly must be part of the law reform endeavour. to permit the sale of juliette and american psycho at a local family bookstall to all and sundry is deeply worrying. fifthly, another alternative proposed by journalist moyra bremner is "that we replace the obscene publications act with human rights legislation, making it illegal to sell or distribute material which promotes sexual violence and degradation towards anyone of any race, sex, age or social group. so emphasising the real life harm done by pornography."87 conclusion pornography is a very vile statement about women. it is a metaphor for the 80. hansard, michael jack, 9 july 1992,682-689, at p. 687. 81. ibid., p. 688. 82. ibid., p. 686. 83. hamard, 30 june 1992, p. 523. 84. previous private members bills have failed: see indecent displays, newspapers and workplaces bill 1989; location of pornographic material bill 1989. 85. s. cretney, "the forfeiture act 1982: the private members' bill as an instrument of law reform", oxfordjo. of legal studies, vol. 10, no.3, pp. 289-306. 86. official rep., 15 december 1989, vol. 153, 1372. 87. moyra bremner: briefmg document circulated to m.p.s in june 1992. 62 pornography: a plea for law reform degraded position of women in society. we live in a society where our bodies are increasingly encoded with pornographic meaning, and the general sexualisation of popular culture has resulted in a widespread "acceptance that soft pornographic images may be publicly displayed. "88 the need for law reform in this area has never been more urgent. there is a crisis of confidence amongst police officers, lawyers and the judiciary who feel that the legislation in this area is hopelessly out of touch with public opinion and impotent in its ability to deal with the growing and pernicious manufacture, sale and distribution of this material in all its forms whether book, film, television, cable and other telecommunications.89 any relevance of the subjective test is now defunct as the material in question becomes increasingly focused on actual violence, and on actual crimes committed on film and detailed in print. it can no longer be held to be a moral individual question when harm is being inflicted on recipients and supported, condoned and encouraged. the power of the d.p.p. to decide in these cases to ensure uniformity and consistency has instead been seen to usurp the jury's decision and must be incompatible where the subjective test is relied upon. a decision which relies on popular hunches and popular wisdom concerning what a particular jury, if in possession of certain facts, might decide is pure guesswork. the recent non-prosecution of american psycho and juliette, to name only two of a recent spate of books published detailing similar gruesome narratives, leaves booksellers to sell these books without restriction, regulation or even guidance on the adoption of a top-shelf policy. a very dangerous situation ferments when men our fathers, our husbands, our sons and our lovers are reading this material and are, as i have argued earlier, learning to assimilate pornographic scenarios, which become conflated with male sexual desires and pleasure. how can any of us remain silent when our children, our sons, may imitate the behaviour, and our daughters may be terrorised, traumatised and abused as a result of male imitation of the matters between such pages and on celluloid? the absence of effective law is symbolically ratifying the harm. what is needed is a recognition of the harm of this material and an objective test. by which to assess it. without workable legislation in place it will be difficult to resist the threat from europe where the court of justice of the european community is deciding on matters of free movement of goods wherein already decisions have reflected that pornographic material is just like any other marketable commodity. similarly, privacy arguments continue to be invoked to defend the choice of those to read and view what they like within the home. 88. d. cameron and e. frazer, the lusrro kill, p. 45. 89. f. coleman and s. mcmurtrie, "too hot to handle", n.l.j., 8 january 1993. 63 the denning law journal acknowledgment thank you to the pornography and violence research trust, london, for financially supporting this work as part of a larger study on pornography. 64 miscarriages of justice our lamentable failure?* the hon. justice michael kirby** falls the shadow it is the fate of the english to be lectured to by visitors from their former colonies. at the turn of the century two irishmen (wilde and shaw) did it almost daily. wilde paid an awful price, when retribution struck. shaw continued his instruction for half a century and got away with it. at his most irish, shaw once said:! "i will explain the english[man] to you. his watchword is always duty ... he is never at a loss for an effective moral attitude ... there is nothing so bad, or so good, that you will not find an englishman doing it. but you will never find an englishman in the wrong." as if in penance for the assurance which accompanied empire, i have now been invited to demonstrate shaw's point. as i reflected on my assigned theme, i could not escape the recurring message of a poem of another foreign man of letters who made london his home. in the hollow men, t s eliot wrote: "between the idea and the reality between the motion and the act falls the shadow." between the idea of british justice and the reality; between the motion of our famous legal procedures and the act of criminal conviction, a shadow has fallen which is called miscarriage of justice. it casts its dark reflection to the four corners * a reference to b. levin, "in contempt, and with reason", the times, 7 february 1991, p. 10. ** president of the court of appeal of new south wales, australia; member of the executive committee, and chairman-elect of the international commission of jurists, geneva. the child & co. lecture 1991, london, published by arrangement with the hon. justice kirby and child & co .. i. g. b. shaw, cited by b. tuchman, bible and che sword: how che bricish came copalescine, macmillan (1982), p. 336. 97 the denning law journal of the world where the english language is spoken and where the procedures of justice fashioned in this city have been copied by a quarter of humanity. british justice. the very words are redolent with confidence in a system, not perfect it is true, but thought to be as close to perfection as human frailty could achieve: unarmed, friendly police, few in number and controlled by strict laws; just sufficient to keep the peace and bring suspects as quickly as possible to the independent judicial branch of government; juries of common citizens sifting the facts to determine whether the crown has proved its case beyond reasonable doubt so as to warrant the infliction of criminal punishment; and independent judges, learned in the law;with functions to instruct the jury on the law and, more lately, to scrutinize the case on appeal. noble assurances of the rectitude of the procedure and the safety of the conviction. guardians against that most horrible thought: a wrongful conviction; an innocent dying at the gallows or more lately the slower death of years behind bars. this is the idea. like most brave ideas, it still has a great deal of reality about it. but the shadow which has fallen over it is persistent. it will not go away. it is not the mundane and tedious grind of criminal appeals which capture the imagination of our public. it is the notorious headline case which sticks in the memory, infecting community opinion: adolph beck;2timothy evans and the murders at 10 rillington place;3 virag and dougherty;4 the confait case;5 the maguire case;6the tottenham three;7 the guildford four;8 the birmingham six,9each of them with 16y2years of wrongful imprisonment to complain about. you in england are not alone in this problem. every jurisdiction of the common law has similar controversial instances. in australia, we have the ratten case; 10 the peden case;ll the ananda marga three;12the macdermott case;13the case of 2. the report of the committee of inquiry into the case of mr. adolph beck, 1905 cmnd. 2315. 3. l. kennedy, 10 rillington place, granada (1971); r. brandon and c. davies, wrongful impn'sonment, mistaken convictions and their consequences, geo. allen and unwin (1973). 4. report to the secretary of state for the home department of the departmental committee on evidence of identification in criminal cases (chairman, lord devlin), 1976. 5. report of an inquiry by the hon. sir henry fisher into the circumstances leading to the trial of three persons on charges arising out of the death of maxwell confait, i 977. 6. b. woffinden, miscarriages of justice, hodder and stoughton (1989), p. 457. 7. see the times, 19 march 1991, p. 3. 8. woffinden, supra n. 6, p. 345; law soc. gaz. 88/3, 23 january 1991, p. 2. 9. woffinden, ibid., p. 441 et seq.. 10. see rauen v. the queen (1974) 131 c.l.r. 510 (h.c.a.); t. molomby, rauen: the webb of circumstance, outback, melbourne (1978). 11. t. molomby, who killed hannah jane?, potoroo, sydney (1981). 12. report of the inquiry into the convictions of timothy edward anderson, paul sean alister and ross anthony dunn (wood j), sydl1ey, 1985 (3 vols.) (ananda marga inquiry). cf. alister v. the queen (1984) 154 c.l.r. 404 (h.c.a.). 13. t. molomby, the shearers tale, potoroo, sydney (1987). 98 miscarriages of justice our lamentable failure? edward splatt;14 the varley case.ls and then there is the case of lindy chamberlain, convicted by a jury. she contended that her infant daughter, azaria, had been taken by a dingo at ayers rock in the centre of australia. 16this was a case whose controversies divided families. a mountain of newsprint and endless video reels agitated the conscience of australia. now) a feature film) with meryl streep no less, has brought lindy's story to countless millions. but is the point of the story that, by exceptional procedures of a royal commission) an anxious society ultimately vindicated justice? or is it that the ordinary institutions of justice were shown to be fallible? the self-same question is posed in london by the recent irish casesy the highest and the lowest should we be engaged in public judicial flagellation because a few cases have been shown to result in apparent miscarriages of justice? i was thinking of this question at eastertime in sydney. it was difficultto escape it. our media too were full of the reports of the birmingham six. australia) which was originally peopled by convicts of the english courts, retains an endless fascination with their activities. the discharge and release of the six was also followed closely in australia upon the apparent principle that the same defects which had been exposed by the six were equally perilous for the administration of criminal justice in australia itself. the reports on the case were succeeded by widespread coverage of an important new decision of the high court of australia concerning judicial warnings about disputed and uncorroborated police evidence of confessions. is i was sitting for the week before easter in the court of criminal appeal in sydney. dressed in horsehair wig and crimson robes) it was difficult not to feel part of the company of the legal profession on the far side of the world, coming under daily and sustained attack. had we indeed, as bernard levin charged, 19 "lamentably failed again and again in [our] duty to see that such scandals do not take place"? were we really) as he said) the instruments of a "hideous growth" in miscarriages of justice in recent years? with these accusations fresh in my mind) i took myself to the quiet colonial cathedral of st john at parramatta near sydney. an accomplished choir sang the familiar themes of j. s. bach's st matthew passion. my attention strayed to the symbols of empire to be seen in every corner of this colonial church. the brass 14. report of the royal commission of inquiry into the conviction of edward charles splatt) adelaide, 1984. 15. varley v. auomey general for n.s. w. (1987) 8 n.s.w.l.r. 30, 40 (n.s.w.c.a.). 16. see chamberlain v. the queen [no.2] (1984) 153 c.l.r. 521 (h.c.a.). see also australia, royal commission of inquiry into the chamberlain convictions, report of the royal commission (hon. mr justice t. r. morling), n.t.g.p., 1987; n. h. young, innocence regained: the fight to free lindy chamberlain, federation, sydney (1989). 17. the "irish cases" is a description used by woffinden, supra n. 6, p. 295. 18. mckinney v. the queen (1991) 171 c.l.r. 468 (h.c.a.). 19. b. levin, the times, 7 february 1991, p. 10. 99 the denning law journal plaque commemorating the mission of samuel marsden to the aborigines and the natives of new zealand. the ragged, now decaying, ensign of a regiment which had fought for the sovereign in the boer war and at flanders. the simple modesty of an anglican church: not too plain as to be austere; yet not overstated. a wall memorial to the first public defender of new south wales who worshipped there. on and on the gigantic passion moved to its well known crescendo. as it reached the point where the chief priests and elders of the people had resolved that jesus should be put to death my attention was arrested. for a fleeting moment, i could understand the dilemma of pilate. he had the legal power to stop a great wrong being done. but he was caught in the system of government and law which appeared to him to necessitate a different conclusion: "and the governor said. why, what evil has he done? but they cried out the more, saying let him be crucified." and later: "when pilate saw that he could prevail nothing, but that rather tumult was made, he took water and washed his hands before the multitude saying, i am innocent of the blood of this just person: see ye to it."20 the vision of jesus as the victim of a grave miscarriage of justice appears even more plainly in st luke's gospel where one of the two prisoners, hanging there with jesus on the cross, railed against him but the other rebuked him saying:21 "doest thou fear god, seeing thou art in the same condemnation? and we indeed justly; for we receive the due reward of our deeds; but this man hath done nothing amiss." so from our very earliest consciousness, at least for us brought up in the christian tradition, we are aware of how public processes can go terribly wrong. of how something can be lawful, unquestionably so, yet profoundly unjust. of how easy it is for public officials, busy with many tasks, to wash their hands, blaming others for the wrongs done which they merely sanction. in this, the first trial which most school students ever hear about, an appeal is rejected. the conviction is confirmed. and that in the face of the recognition by the person responsible that the confirmation will probably do an injustice. most of us who have been brought up with the message of that great miscarriage find that the unacceptable inevitability of it all sears into our consciousness. even in an increasingly secular society, the message is culturally embedded. it is 20. st matthew's gospel, 27:23-24. 21. st luke's gospel, 23:40-41. 100 miscarriages of justice our lamentable failure? repeated every eastertime in words and music. the lessons are clear. lawfulness and power are not enough. wrongs are done to the highest as to the lowest. a mechanistic fulfilment of public office and the power of review debases that office and the holder of it. with power inescapably goes moral, as well as legal, responsibility. a ritual performance of power does not suffice. against the risk of injustice must be provided checks and real scrutiny of alleged injustice. to the extent that our law condones ritual and ignores substance it gives little better than the hearing pilate gave. solemn judicial reasons may look better. but unless they are actually focused every time upon preventing a possible miscarriage of justice, they are only a slight improvement on the mealy-mouthed utterances of pilate, washing his hands and salving his conscience. the size of the problem ordinary people are increasingly aware of the danger of things going wrong in our courts. their awareness has been enlivened by a succession of notorious cases. it has been sustained by an adamant media which does not now share the ethos of respect for the judiciary common in the legal circles in which the judiciary is typically immured. some proportion of cases are bound to miscarry. wrongs will be done which cannot be righted. so much is admitted even by the most vocal critics of the present system.22 there must be finality in criminal, as in any other litigation. cases cannot forever be relitigated. nor should the jury system be undermined unnecessarily. any human system of justice is bound to make a few mistakes. so much must be allowed. but the point made by the critics of the present system is that the number of such miscarriages is far greater than those operating the system will acknowledge. and that the greatest injustice arises from the way in which operators of the present system at every level allow it to be manipulated, pre-trial, at trial and on appeal, with too much attention to rules and procedures and insufficient concern about the risk of injustice. it is lawyers' faults that we are accused of: attention to the familiar, comparatively simple rules and procedural requirements. unconcern about the substantive issues of injustice and innocence that lie behind. given that some component of error must be tolerated as an inescapable attribute of our humanness, how large is the problem of miscarriage of justice against which the critics rail with increasing vociferousness? woffinden in his book miscarriages of justice asks:23 "how many miscarriages occur? it is impossible to tell, especially since the field can hardly be adequately researched. arthur koestler made a 22. woffinden, supra n. 6, p. 485. see also t. molomby, "miscarriages of justice in britain" in k. carrington and ors, travesty! miscarriages of justice, academics for justice, sydney (1991), ch. 2. molomby says (loco cit.) that "there could be one miscarriage of justice a year involving serious criminal cases in the whole of australia." 23. loc cit .. 101 the denning law journal persuasive point in 1956 when he commented, apropos of the evans case, that 'it is not unreasonable to assume that the number of undetected errors may be greater than we believe'. whenever a judicial error came to light, the temptation in those days was to regard it as exceptional. wrong, argued koestler. the correct inference to draw was not that the occurrence itself was exceptional; but that it required exceptional luck to be able to detect one." ludovic kennedy in 1956 estimated that between 200 and 300 innocent people are to be found in british gaols at anyone time.24e. d. radin in 1964 suggested that there were 14,000 cases a year in the united states or a 5% error for people gaoled. a more recent study, involving some empirical research, by c. r. huff and colleagues, concluded that there were one or two miscarriages for every 200 persons convicted of felonies, i. e. , a margin of 1%. a higher figure is supported by the notable research of dr john baldwin and dr michael mcconville into cases before the birmingham crown court in 1975-6. as a result of their research they concluded that at least 5% of defendants were convicted "in doubtful circumstances".25 it is said that more up to date statistics are not available because further research by baldwin and mcconville was not permitted by the lord chancellor's department.26 there are, of course, various apologists for these figures. what do they say? some of the persons convicted would in fact be guilty, though not properly proved to be such. some would surely be guilty of other offences (an excuse sometimes given by police who "verbal" prisoners or "load them with presents", i.e., plant evidence on them). more thoughtful are the system's defenders who assert that a degree of error is built into the peculiar institutions we have accepted: the jury, which is an accident of history but which has constitutional and democratic attributes that outweigh the occasions on which it falls prey to prejudice, passion and emotion;27 the accusatorial system of criminal trial, which disclaims a search for the truth and prefers, instead, to enhance liberty by imposing the duty on the crown to prove its case beyond reasonable doubt.28 this may lead to elements of artificiality in the contest. but it does so for the purpose, thought justifiable by many, of controlling and limiting the intrusions of the state in the life of the individual; and 24. l. kennedy in n. fellows, killing time, syndey, lion (1986), p. 3. see also p. r. wilson, "when justice fails: a preliminary examination of serious criminal cases in australia" , (1989) 24 a usr. j. of soc. issues, p. 3. 25. j. baldwin and m. mcconville, jury trials, a.v.p., clarendon press (1979). see also wilson, op. cir., p. 4. 26. woffinden, supra n. 6, p. 485. 27. p. devlin, the judge, a.v.p. (1979), p. 117. 28. questioned by lord scarman, the times, 5 march 1991, p. 10. 102 http://www.ingentaconnect.com/content/external-references?article=0157-6321(1989)24l.3[aid=7383028] http://www.ingentaconnect.com/content/external-references?article=0157-6321(1989)24l.3[aid=7383028] http://www.ingentaconnect.com/content/external-references?article=0157-6321(1989)24l.3[aid=7383028] http://www.ingentaconnect.com/content/external-references?article=0157-6321(1989)24l.3[aid=7383028] http://www.ingentaconnect.com/content/external-references?article=0157-6321(1989)24l.3[aid=7383028] http://www.ingentaconnect.com/content/external-references?article=0157-6321(1989)24l.3[aid=7383028] http://www.ingentaconnect.com/content/external-references?article=0157-6321(1989)24l.3[aid=7383028] miscarriages of justice our lamentable failure? convictions which are recorded in an open trial and generally at the hands of a jury can only be set aside by a similarly open procedure on appeal. this rule not only diminishes the executive government's control over the criminal justice process.29 it also maintains the openness and public character of our criminal justice system. it defends us from the secret trials of other lands. other systems have devised quite different institutions for administering the criminal law and controlling the coercive powers of the state over individuals in it. the examining magistrate of france and the prokuratura of the soviet union30 doubtless avoid, by their procedures, some convictions which may occur by ours. no doubt we can learn from the civil law system. in england, you have close at hand, in scotland, an alternative procedure with which to stimulate the smouldering fires oflegal imagination.31 your new association with europe, and with its judicial institutions profoundly affected by the civil law, will undoubtedly, in time, affect your vision of the appropriate means of administering public and criminal law. but for the moment you are as we in australia are heirs to a very special system which has grown, in large part, by accident. it is a system which has as an essential idea, a notion of the relationship between the individual and the state which i, for one, would want to preserve. because, in australia at least, it seems unlikely that there will be any fundamental change in that system in my lifetime, it is more appropriate for me to address attention to repairs of the current system that will help to reduce the risks of miscarriages of justice in it. larger reforms, which will overthrow that system, can safely be left to bolder spirits. the things to be done begin at the police station. they continue at the trial. they arise most urgently after conviction and on appeal. they continue while ever a wrongful conviction stands. reforms of police procedures much of the recent debate about miscarriages of justice has focused on the appellate system and its alleged defects. judges, especially senior judges, are very visible targets for anger, sometimes justifiable, about miscarriages. but a sensible system will strive to avoid injustices occurring in the first place. this is why much attention has also been given oflate, in britain, australia and other jurisdictions of the common law, to reform of police investigation of offences and pre-trial 29. see confait report, supra n. 5, pp. 24-5; and cf. lord mackay of clashfern, the child: a view across the tweed, (1988] denning l.j. 89. 30. see r. david and j. e. c. brierley, major legal systems in the world today, stevens and sons (1978), p. 200. 31. there has been a widespread call in recent months for a search for "the truth" rather than "the winner". see,e.g., l. kennedy, "lofty, remote and mistaken", theindependent,4aprii1991, p. 15; p. marlow, "our judges in the dock", sunday timesmagazine, 17 march 1991,p. 18;but contrastr. d'sa, "reforming the right of silence in criminal trials: a commonwealth perspective", (1990) 2 revue africaine de droit international et compare 604 (in english). 103 http://www.ingentaconnect.com/content/external-references?article=0269-1922(1988)0l.89[aid=7383027] http://www.ingentaconnect.com/content/external-references?article=0269-1922(1988)0l.89[aid=7383027] the denning law journal treatment of suspects. 32 upon one view, it is the contradictory and apparently unattainable obligations cast upon police and other investigators which has led them into bending and twisting rules with consequent risks to the safety of convictions which follow. in 1978, the then metropolitan police commissioner (sir david macnee) told the english royal commission on criminal procedure that the reason for abuse of police authority was the artificiality of some of the rules imposed upon police by the law. he blamed parliament for failing to give police the power they needed:33 "[m]any police officers have, early in their careers, learned to use methods bordering on trickery or stealth in their investigations because they were deprived of proper powers by the legislature." most frequently criticised is the denial of any right to arrest a person for interrogation34 and the obligation imposed by law to take a suspect, reasonably suspected of having committed an offence, as soon as practicable before a justice. 35 how, police ask, can they perform their duties for society under such absurd constraints? yet once an officer sworn to uphold the law, begins to twist and bend the law, cynicism and manipulation have set in which may pervert that officer's performance of other duties and undermine the integrity of his or her work. that is why the australian law reform commission in a report of 1975 proposed a new statement of police procedures, improved training of police and a more realistic control of police activities, subject to more modern and appropriate checks and balances. 36 the police welcomed the powers. they opposed bitterly the controls and checks. although bills to implement the report3? were twice introduced into the australian parliament, neither passed into law. as recently as april 1991another bill was enacted which is partly derived from the law reform 32. see justice (british section of the international commission of jurists), miscarn'ages of jusrice, 1989, p. 33. also see reports and proposals summarised in kirby, n. 33 infra. 33. see [1978] 128 n.l.j. 769. note dicussion in m. d. kirby, "controls over investigation of offences and pre-trial treatment of suspects; criminal investigation and the rule of law" , (1979) 53 ausr. l.j. 626, p. 627. 34. williams v. the queen (1986) 161 c.l.r. 278 (h.c.a.); dallison v. caffery [1965] i q.b. 348,367 (c.a.). 35. williams, ibid .. see also australian law reform commission, criminal lnvesrigarion (a.l.r.c, 2) (interim), a,g.p.s. canberra, 1975, p. 10 er seq.; new south wales law reform commission, police powers of derention and lnvestigarion afrer arresr (l.r.c. 66), sydney, 1990, p. 3 er seq.. 36. a.l.r.c. 2, ibid .. see also south australia, the criminal law and penal methods reform committee, second report, cn'minal lnvesrigarion, adelaide, 1974, p. 2. 37. criminal investigation bill (1977) (lapsed); criminal investigation bill (1981) (cth.) (lapsed). cj. defence force (discipline) act 1984 (cth.). 104 miscarriages of justice our lamentable failure? commission's report.38 public criticism of this new measure claims that the law makers have caved in entirely to the police objections. 39certainly, a number of old common law rules have been overthrown. the desirability of clearly stating the rules governing police cannot be gainsaid. the high desirability of improving police selection, training and employment conditions cannot be denied, given the great power which they enjoy and responsibilities which they shoulder. united states studies have demonstrated, that while a medical practitioner receives some 11,000 hours of training, an embalmer 5,000 hours and a hairdresser 4,000 hours, the average policeman receives little more than 200 hours of sustained rigorous instruction.40 things are improving. but we make great demands upon police many of whom (at least until the recent past) were chosen for physical size and strength rather than for the skills really needed in an uncorrupt, modem, technological police service.4\ before it joined the graveyard of other reports on criminal procedure, the australian report joined the others in urging the greater use of technology to enhance control over critical police decisions by the independent judicial branch of government (as by search warrant and arrest warrant granted by telecommunications).42 it also laid down, as one security for a new facility of time for police interrogation, the obligation to require sound recording of the interrogation.43 it was this proposal especially that attracted calumny from the police. their opposition was declared to be "unalterable" and "strenuous".44 from the other side, civil libertarians criticised the provision for a four hour detention. they suggested that the balance struck by the common law, reinforced by the judges rules45 had been endangered. there is a clear and urgent necessity to reform the law of criminal investigation both in australia and britain. it is here that unlawful and oppressive practices flourish; corruption and cynicism breed and miscarriages of justice inevitably result later in courtrooms. there are other features of our system which can give rise to wrongs. they 38. crimes (investigation ofcommonwea1th offences) amendment act 1991 (cth.). the act provides for a period of detention of 4 hours (2 hours in the case of aboriginals and torres strait islanders). it provides for various checks, including recording of confessions. it reaffirms the right to silence. it applies only to the investigation of federal crimes a small proportion of criminal conduct in australia where most criminal law is governed by state law. cf. s. odgers, "police interrogation and the right to silence", (1985) 59 ausr l.j. 78. 39. r. merkell, "danger for all in a bill for the bill", sydney morning herald, ii april 1991, p. 12. see also the age, 25 march 1991, p. 13 which especially criticised the provisions in the act which permit police not to record confessions on tape or video if it is "impracticable". 40. kirby, n. 33 supra, p. 633. 41. ibid .. 42. a.l.r.c. 2, supra n. 35, pp. 39, 95. 43. a.l.r.c. 2, p. 71 et seq.. 44. cf. driscoll v. the queen (1977) 137 c.l.r. 517 (h.c.a.). 45. as revised see [1964] i all e.r. 237. see kirby, supra n. 33, p. 631 er seq.. cf. r. v. voisin [1918] i k.b. 531 (c.c.a.); r. v. may (1952) 36 cr. app. r. 91,93; r. v. prager (1972) 56 cr. app. r 151 (c.a.). 105 the denning law journal include the decisions made to prosecute offenders or later to review their convictions. they also include the obligations we place on police to enforce "unenforceable laws" relating to gambling, pornography, sexual conduct and drug use. likewise, they include inadequate or incompetent procedures for handling complaints against police and for punishing or removing police who wilfully occasion a wrongful conviction. this much, at least, of the australian report was substantially implemented.46 both at a federal and state level in australia, improved systems for handling complaints against police, involving the ombudsman, have been enactedy judges for a century have voiced their suspicion about unconfirmed confessions by suspects to police, later disputed by the suspect. in 1893 mr justice cave observed:48 " ... i always suspect these confessions, which are supposed to be the offspring of penitence and remorse, and which nevertheless are repudiated by the prisoner at the trial. it is remarkable that it is of very rare occurrence for evidence of a confession to be given when the proof of the prisoner's guilt is otherwise clear and satisfactory; but, when it is not clear and satisfactory, the prisoner is not unfrequently alleged to have been seized with the desire born of penitence and remorse to supplement it with a confession; a desire which vanishes as soon as he appears in a court of justice." this feature of criminal investigation had been remarked on earlier in india. but there the imperial lawmakers did something very effective to deal with the problem. they prohibited the admission into evidence of confessions to police unless made before an independent magistrate.49 that rule still obtains in many parts of the commonwealth of nations.50 questions are now asked as to why a rule, good enough for the colonies, was not good enough for england and, i should say, australia. seemingly, the greater perceived reliability of english and 46. australian law reform commission, complaims against police (a.l.r.c i), a.g.p.s., canberra (1975). see also a.l.r.c 9. 47. see complaints (australian federal police) act 1981 (cth.); police regulation (allegations of misconduct) act 1978 (n.s.w.); police administration act 1979 (n.t.). it is a constant complaint of the irish prisoners, recently released in england, that police officers involved in their convictions have gone on to very high posts in the police service and remain unpunished for wrongdoing. see the expression of disappointment in police complaints authority (u.k.) triennial review 1988-91, 1991, p. 7 (para. 1.7). 48. the queen v. thompson [1893] 2 q.b. 12, at p. 18. 49. indian evidence act 1872, ceylon equivalent consd. in reg. v. ramasamy [1965] a.c 1,pp. 14-15 (p.c) and thambiah v. the queen [1966] a.c 37 (p.c). for history, see j. stephen, a history of the criminal law of england (1883), p. 332 et seq. and discussion a.l.r.c. 2, p. 73. 50. see, e.g., t. akinola aguda, law and practice relating to eviuence in nigeria, london, sweet & maxwell (1980), pp. 72,91 et seq.. 106 miscarriages of justice our lamentable failure? australian police at the turn of the century was thought to obviate the necessity.51 sustained judicial experience of the kind which mr justice cave voiced52has led to repeated complaints. in australia, the demands for sound and later video recording began to be heard with increasing insistence after 1962, such was the judicial disquiet. 53in the face of police opposition and legislative inertia, the courts of australia resorted to a strengthened rule for the exclusion of evidence unlawfully or unfairly obtained. 54in england at about the same time, an enhanced power for the exclusion of such evidence by judges was afforded by the police and criminal evidence ace. 55in some parts of australia sound and video recording of confessions to police has been introduced pursuant to statute.56 in other parts, the suggestion is still under study, thirty years and many injustices after it was first proposed. as i shall show, the point was reached in march 1991 when the high court of australia felt obliged to act. reforms of the trial identification evidence. one of the chief reforms that can be adopted at the trial of a person accused of a criminal offence to reduce the risk of miscarriage is the strengthening of judicial warnings about the dangers that may attend conviction upon contested prosecution evidence. some of the most shocking cases of miscarriage of justice have occurred as a result of mistaken identity. it was the clear establishment of the innocence of adolph beck, despite his identification by numerous accusers, which triggered the moves that led to the establishment of the court of criminal appeal in england and initiated similar courts and additional procedures in other common law countries, including my own. the basic problem of identity evidence may be simply stated. human memory is extremely fallible, particularly with the passage of time. people see what they want or expect to see. unless procedures for identification are carried out with impeccable fairness, there is a significant risk of wrongful identification. all of this was reaffirmed in lord devlin's report of 1976.57the judgment of the court of appeal of england in turnbull in 1977 required judicial warnings to be given.58 this judgment has proved highly influential, beyond england. it has been applied in australia.59lately, still more rigorous and detailed standards have been insisted 51. see supra, n. 48. 52. woffinden, supra n. 6, p. 487. 53. r. v. governor of merropoliran gaols, ex parre molinari [1962] v.r. 156, 169; (s.c.v.). 54. see, e.g.,bunningv. cross (1978) 141 c.l.r. 54, (h.c.a.); clelandv. the queen (1982) 151 c.l.r. 1,5 (h.c.a.); van der meer v. the queen (1988) 35 a. crim. r. 232,248 (h.c.a.). 55. 1964 (eng.). see, e.g., reg. v. delaney (1988) 88 cr. app. r. 338, 341 (c.a.). 56. see, e.g. ,crimes act 1958 (vic.),s. 464h noted inmckinneyv. the queen, supra n. 18,esp. toohey j at p. 497. 57. see justice, supra n. 32, p. 26. see also lord devlin's report, supra n. 4. 58. [1977] q.b. 224 (c.a.). 59.alexanderv. the queen (1980) 145 c.l.r. 395, 402 (h.c.a.);a//env.r. (1984) 16 a. crim. r. 441, 445; finn v. r (1988) 34 a. crim, r. 425 (n.s.w.c.a.). see also reid uunior) v. the queen [1989] 3 w.l.r. 771 (p.e.). 107 the denning law journal upon.60 but by adopting its guidelines, the court of appeal pre-empted legislation. this did not pass without criticism by lord devlin.61 disputed confessions. judicial warnings about confessional evidence have come much more slowly and this despite the century old warning of sir lewis cave. in australia, the high court expressly recognised in 1977 that an unsigned police record of interview might be fabricated.62 the practical and forensic difficulties of challenging such statements were reiterated in 1988.63in that year, although the high court refused to adopt a general rule requiring warnings by trial judges, it held that, in the circumstances of one case, a warning should have been given by the judge in express terms.64 in a later case the court, differently constituted, rejected an argument that a warning should have been given. a chance to reconcile these apparently different decisions arose in march 1991 in mckinney v. the queen.65 all of the justices of the high court of australia participated in this appeal. by majority66the court laid down "for the future" a new and rigorous requirement of judicial warning to juries about the danger of convicting on disputed and uncorroborated confessions to police. the majority said:67 "given the existence and increasing availability of reliable and accurate means of audiovisual recording and given that the decisions in carr and duke cannot be satisfactorily reconciled, we are of the view that it is incumbent upon the court to reconsider the whole question. that reconsideration has led us to conclude that a rule of practice should be adopted for the future along the lines suggested ... in carr. material presented in the course of argument in this case suggests that there has been significant progress in relation to the audiovisual recording of interviews since carr was decided .... a rule of practice will operate to counter the relative disadvantage accruing to an accused person who is interviewed while in police custody at a place lacking recording facilities. and, as the means of recording become generally available, the absence of a recording will tend to bring the reliability of a confessional statement into issue, thus raising the question whether ... a warning should be given." explaining this new "rule of practice" the more radical because it was expressed to apply in the future the majority of the high court of australia said:68 60. see esp. finn (supra) and domican v. the queen (no.3) (i990)46a. crim. r. 428 (n.s.w. c.c.a.). 61. devlin, supra n. 27, pp. 175, 186 et seq.. see also justice, supra n. 32, p. 27. 62. burns v. the queen (1975) 132 c.l.r. 258,265 (h.c.a.);driscoll v. the queen (1977) 137 c.l.r. 517,542 (h.c.a.); wright v. the queen (1977) 15 a.l.r. 305 (h.c.a.). 63. carr v. the queen (1988) 165 c.l.r. 314 (h.c.a.). 64. ibid., pp. 337, 343. 65. (1991) 171 c.l.r. 468. 66. mason cj, deane, gaudron and mchugh jj; brennan, dawson and toohey jj dissenting. 67. ibid., p. 473. 68. ibid., p. 475. 108 miscarriages of justice our lamentable failure? "the contest established by a challenge to police evidence of confessional statements allegedly made by an accused while in police custody is not one that is evenly balanced. a heavy practical burden is involved in raising a reasonable doubt as to the truthfulness of police evidence of confessional statements, for, in the circumstances which invariably attend that evidence, a reasonable doubt entails that there be a reasonable possibility that police witnesses perjured themselves and conspired to that end .... [t]he contest is one which may entail other forensic constraints or disadvantages. thus, the jury should be informed that it is comparatively more difficult for an accused person held in police custody without access to legal advice or other means of corroboration to have evidence available to support a challenge to police evidence of confessional statements than it is for such police evidence to be fabricated, and, accordingly, it is necessary that they be instructed, ... that they should give careful consideration as to the dangers involved in convicting an accused person in circumstances where the only (or substantially the only) basis for finding that guilt has been established beyond reasonable doubt is a confessional statement allegedly made whilst in police custody, the making of which is not reliably corroborated. within the context of this warning it will ordinarily be necessary to emphasise the need for careful scrutiny of the evidence and to ~irect attention to the fact that police witnesses are often practised witnesses and it is not an easy matter to determine whether a practised witness is telling the truth. and, of course, the trial judge's duty to ensure that the defence case is fairly and accurately put will require that, within the same context, attention be drawn to those matters which bring the reliability of the confessional evidence into question. equally, in the context of, and as part of, the warning, it will be proper for the trial judge to remind the jury, with appropriate comment, that persons who make confessions sometimes repudiate them." it is clear from a reading of this australian decision, that a majority of the high court of australia had come to a conclusion that the time for general words of caution and judicial appeals for legislation or to the exclusionary rule had passed. such was the perceived dimension of the problem and the risk of serious miscarriages of justice, that the court felt obliged to take the stand it did. that stand is now the common law of australia. it is a judicial stand designed to diminish the risks of miscarriage of justice based upon uncorroborated disputed confessions to police. in terms unusually strong for australia, the dissenting judgments of the three minority justices criticised the perceived departure from the court's earlier authority and the prescription of a future practice derived from experience with police in new south wales for application in all australian jurisdictions. fear was also expressed that the even-handedness of the criminal trial would be unbalanced by a judicial obligation to give a warning which may appear to place the judge on 109 the denning law journal one side of the contest on an issue of fact. 69 so much was said by justice brennan who reiterated his support for the proposals of the australian law reform commission report which he, as a commissioner, had signed in 1975 urging the legislative introduction of electronic recording of police interviews of suspects. this australian decision is not the first time that the judges have taken a bold stand to assert control over the detail of police conduct by the weapon which judges have in court to exclude, or warn against the use of, the product of police actions. the judges' rules in 1912and 1918 did more than this. whatever maybe the criticism of the departure from precedent and the invasion of the legislative realm by "judicial activism", 70the nett result is surely an advance for the constant struggle against miscarriages caused by police "verbals" and unreliable confessions. unless the obligation to give a warning is undone by valid and effective legislation, the new australian rule will certainly expedite the installation and use of videotaping of confessions to police. if this, in turn, reduces the burden of disputes over this issue, with time-consuming committals, voir dire and other procedures, it will be a great blessing. and the result may be fewer wrongful convictions based upon contested confessions to police. had such a rule been part of the law of england when the birmingham six were tried, it is quite possible that most of the six would have been acquitted by the jury given the absence of satisfactory evidence against some of them, save for the confessions now said to have been extracted from them by oppression and force.71 scientific evidence. the third area where particular care is needed relates to forensic scientific evidence. two of the birmingham six were convicted upon scientific evidence now conceded to have been unreliable. partisan expert evidence can do terrible wrongs in the forensic setting. the judge, as much as the jury, will often be ignorant of the realm of discourse engaged in by the forensic expert. the accused may not have equal access to the expertise in the possession of the crown, simply because of the repeated experience from which the expertise derives. such experts may be too close to the prosecution. they may lose their objectivity. yet their very expertise may cloak them with the appearance of professional neutrality. they may be over-confident of their skills and of the "science" they apply. dependent on those who call them, they may unconsciously take on their cause,72 all of this has been said many times. the moves towards the use of highly scientific technical evidence is to be applauded, so far as it provides an assurance of proper convictions and a protection 69. ibid., p. 468 (per brennan j). 70. ibid., p. 249 (per dawson j). 71. mcilkenny v. chief cunstable of the west midlands and another [1980] i q.b. 283 (c.a.). for criticism, see, e.g., t. molomby, "miscarriages of justice in england", in m. k. carrington & drs (eds.), travesty: miscarriages of justice, sydney (1991), ch. 2. 72. australian law reform commission, evidence (a.l.r.c. 26) (interim) vol. i, p. 75 et seq. where the problem and case law'are discussed. 110 miscarriages of justice our lamentable failure? against miscarriages.73 however, a litany of cases now teach us the lesson that expert testimony will only be as reliable as the honesty and integrity of the experts; the soundness of the procedures they use and the accuracy of the knowledge they apply. such warnings are voiced in the con/ait report, the report of the royal commission into the conviction of mrs chamberlain and now by the release of the birmingham six. they direct our attention to the need for safeguards against wrongful conviction based upon the unreliable testimony of experts. various options have been proposed to deal with this problem.74 at the very least, judges should ensure that the raw data upon which the expert opinion is expressed, is faithfully preserved against the possibility of later challenge and the need for rescrutiny with the advance of further scientific knowledge. many other reforms are doubtless needed at the trial. the variable quality of legal representation is often mentioned as a significant source of wrongful convictions. courts are now much more willing to set aside a conviction where the accused was incompetently represented by an inexperienced advocate.75 they should resolutely do so if the transcript shows that the prisoner did not have a proper trial according to law because of incompetent representation. a jury trial largely depends for its success upon a contest between two roughly equal and experienced combatants. in such circumstances, the notion that an accused has no common law right to legal counsel for a defence against a serious charge is one which the judges should reject as wholly contrary to modern notions of basic rights and due process.76 the notion that an experienced solicitor, trained in the law, cannot appear at a criminal trial (yet a junior barrister of no experience can) is one which challenges commonsense. in australia, even in states with a separate bar established by law, any legal practitioner, including a solicitor, has a right of audience to the highest courts. it has been so in most parts of australia for a century. it has caused no difficulty whatsoever. we watch with bemusement, even astonishment, the passion of debates in england on this issue. i regret to say that such debates tend to confirm the stereotype of the english bench and bar as a club, nurtured in common schools, reinforced in common forensic experience and renewed in shared social life. in australia it is not exactly the same. 73. i. freckelton, "the ultimate identifiers: fingerprinting and dna sampling", (1990) 15 leg. servo bujjp.tin 172. 74. v. d. plueckhahn and s. m. cordner, ethics, legal medicine and forensic pathology 2nd ed. (1991), forthcoming. see also note (1986) 60 aust l.j. 543. 75. see brennanj injones v. barnes 77 l. ed. 2d 987,463 u.s. 7451000(u.s.s.c.): "if the quality of justice ... really depended on nice gradations in lawyers' rhetorical skills, we could no longer call it justice." see also discussion in woffinden, supra n. 6, p. 416; b. s. ledewitz, "procedural default in death penalty cases: fundamental miscarriage ofjustice and actual innocence", 24 grim. l. bulletin 379, at p. 416 (1988). as to australian law, see giannarelli & drs v. wraith (1988) 35 a. crim. r. i, (h.c.a.); re knowles [1984] v.r. 751, (v.c.c.a.); r. v. birks (1990) 19 n.s.w.l.r. 677, (n.s.w.c.a.). gf. r. v. ensor [1989] i w.l.r. 497 (c.a.). 76. contrastmcinnisv. the queen (1979) 143c.l.r. 575 (h.c.a.) and gideon v. wainwright 372 u.s. 335 (1963) (u.s.s.c.). see alsor. v. howes [1964] 2 q.b. 459, 466 (c. a.) and moore v. skinner (1990) 49 a. crim. r. i, 3. 111 the denning law journal reforms on appeal and now i reach the tip of the iceberg: the judges. at the trial the reduction of the judicial recapitulation of the facts is probably called for. recent legislation in new south wales has been designed to this end. in lengthy reviews of the facts lie the risks of misdirection and, sometimes, the display of a lack of neutrality. but it is in the appeal court that i see the problem. this has also been the target at which most of the media fire of recent months in england has been aimed. it is the appellate system which has borne the brunt of the principal crticism. it has been blamed for a "catastrophic decline in public confidence". it is the appellate judges who have "grievously missed the opportunities to correct wrongs which have resulted in injustice."77 it is those judges who stand accused of playing out a paramount concern "in operating the system to conceal its valetudinarian condition. "78 the repeated charge against the appellate judges is nothing less than of a cynical unconcern with innocence and an overriding imperative to defend the public confidence in the institutions in their charge at the tolerable cost of an occasional sacrifice. "i sit in this cell," writes a prisoner, "nat because af evidence against me but because af the legal establishment's pretensions to infa//ib£/ity. "79 in a sense, these angry denunciations represent something of a back-handed compliment to the judiciary. of the senior judges of our tradition, much is expected. they are the ultimate guardians of a semi-holy grail named "british justice". when faith is lost and expectations disappointed, in one of the most precious and admired institutions of society, angry people, used to disappointment only in the other branches of government, lash out. thus, there have been demands for the resignation of the lord chief} ustice. there are calls for an earlier judicial retirement age.80if a "bare footed procession" of penitent judges from the law courts to st paul's only just escapes the editorialist's approval, the major accusation is of a "mind set" which is "encrusted with forty year old ideas" .81 if the judges are not just vain, proud, remote establishment figures insensitive to injustice, they are loveable old men now "helplessly, inescapably, tragically" out of their depth.82 we, the judges, can peremptorily dismiss such misguided accusations, if we will. some judges have been so bold as to assert a duty to perform their functions as the law presently provides and been taken to task for doing so.83 others have left themselves open to criticism by the petulant way in which they have responded to 77. the times, 19 march 1991 (editorial). 78. woffinden, supra n. 6, p. 489. 79. quoted woffinden, ibid., 489 et seq.. 80. the times, 19 march 1991, p. 7. 81. b levin, supra n. 19. 82. ibid .. 83. see, e.g., the remarks of lloyd lj noted the times, 4 march 1991, p. 3 and the criticism of taylor lj in levin, supra n. 19. 112 miscarriages of justice our lamentable failure? the attacks on their amour propre. it is probably true to say that, at least the judges of the higher courts are quite unused to such serious, sustained and pointed criticism. in england, the campaign probably began with the "spycatcher" cases and continues to this time, with vehemence. an easy response in these circumstances would be blame the media. it is certainly true that the modern media in a free society seeks targets and scapegoats. nothing is immune. by convention the judges cannot answer back in an effective way. but a free and vigorous media is an important attribute of an open society. and it should be acknowledged wholeheartedly that, in too many recent cases, it has been the media rather than the institutions of justice or the judges, which have been vindicated. for example, it was the sustained attention to the case over many years (when most citizens had forgotten and when judges had thrice rejected them) that saw granada television and the world in action maintain alive the flame of justice which ultimately required the release of the birmingham six. amidst all the extravagance of accusation there commonly lies a blinding, simple truth. embarrassing as it is to say it, it must be stated. it was a band of loyal supporters who never lost faith in the prisoners, and a few discerning journalists who supported them, rather than the judicial institutions which actually led to the termination of that injustice. the errors of the earlier curial responses can, of course, be fully explained. they can even partly be justified on the basis of the material as it was then before the courts. only in recent months did the final props of the prosecution case fall away. but the result is that a very large wrong appears to have been done. rightly, the public want to know what can be done to ensure against repetition where there is no band of supporters, where there are no interested journalists and where the prisoner sits in a silent cell the victim of an exquisite system which has made a mistake. this is not the occasion to recount once again the unfortunate tale by which the powers of the english court of appeal, and its predecessor came to be circumscribed. almost certainly, as lord devlin majesterially showed,84 the powers of the court of appeal were confined by the judges in a way that parliament never intended.85 later attempts to revise that understanding of the function of the court in england have defied curial applications. they have ignored thoughtful commentary and criticism.86they have resisted the manifest need for a wider charter. the result has been a derogation from the function of the jury. instead of following the old stir/and formula, so that if relevant fresh evidence were admitted a new trial before ajury would be ordered unless the court was satisfied that the jury would inevitably convict, an imperfect retrial by three judges has prevailed. in the result, a fiction has been accepted .that the appeal judges can get the "feel" of 84. p. devlin, supra n. 27, p. 157. 85. stafford v. director of public prosecutions [1974] a.c. 878 (h.l.). 86. see, e.g., justice, supra n. 32 and materials there cited. see also devlin, supra n. 27. 113 the denning law journal the case.87 they themselves can then judge, with the benefit of any new evidence, whatthe jury (which gave no reasons) would have regarded as a safe or satisfactory conviction. lord devlin compares the result of this approach with the legend of the judge who, at the end of his judgment said:88 "my brother snodgrass, before he went off to sleep during the last half of the argument, authorised me to say that he fully agrees with what i have just said." there is thus an appellate retrial, but one "at a disadvantage". 89 the disadvantage is that the appellate judges will rarely, if ever, have the time or the opportunity to recapture in its entirety and in sequence the whole of the evidence, mood and atmosphere of the trial. yet that is what they are authorised and required to do. three judges second-guess the silent jury; but without the constitutional authority or forensic advantages which that jury enjoys. it is natural that appellate judges will approach a challenge to a jury's verdict, even on the basis for fresh evidence, with a degree of distaste. common experience tells them that most jury verdicts are sound. if there has been error of direction, the verdict can readily be quashed. but quashing a verdict may require a retrial. it is a retrial which must be had at very considerable public cost. quite apart from the private and public legal costs, there are the opportunity costs of police witnesses and other citizens who must stand idly by whilst, once again, they wait to give evidence frequently in a trial extended by painful comparisons with earlier testimony. the appellate judges will have seen the remarks on sentence. they will know (as often is the case) that the accused has an anti-social past. they cannot approach the case in quite the same way as a jury, which knows nothing of these things. nor do they have the time, typically, all of them, to read the entirety of the transcript of what may have been a trial lasting many days or even weeks. they visit the evidence, on the invitation of competing counsel, skipping from one 87. r. v. cooper (sean) [1969] i q.b. 267,271 (c.a.) ("some lurking doubt in our minds"). 88. devlin, supra n. 27, p. 159. at p. 171 ibid., lord devlin said: "it seems to me that even those judges who are in favour of extending the domain of judges over the facts must accept that the position which has now been reached is not a satisfactory one. instead of the retrial by jury for which parliament provided in 1964, there is an imperfect retrial by judges, in which the normal appellate review has been swallowed up. this has happened because the house of lords, sitting judicially, is not, as it has often itself emphasised, the right body to effect reforms of this magnitude; they need more detailed planning than can be given in speeches whose function it is to state the reasons for a decision in a particular case." 89. noted by lord dilhorne [1974] a.c. 878, atp. 894 (h.l.). note the position in canada in yebestv. the queen (1988) l.r.c. crim. 260. there the supreme court of canada held that a court of appeal's function under s. 613(a)(i) of the criminal code r. s.c. 1970 (c-34) went beyond merely establishing whether or not there was evidence to support a conviction. the correct test was for it to determine, by re-examining and to some extent reweighing and considering the effect of the whole evidence, direct or circumstantial, whether the verdict was one that a properly instructed jury, acting judicially, could reasonably have rendered. see also corbett v. the queen [1975] 2 s.c.r. 275,282 (s.c.c.). 114 miscarriages of justice our lamentable failure? passage to another. rarely do they capture the subtle atmosphere of the trial. for such things do not readily emerge from cold pages. these are the reasons why, in civil trials, so much deference is paid to the advantages of the trial judge or jury, who see the evidence unfold in sequence and observe the witnesses giving their testimony. 90 we should follow lord devlin's warning. we should confine the function of courts of criminal appeal to considering whether credible and relevant fresh testimony is available. if it is, then, save in cases where such evidence could not possibly have altered the jury's verdict, it should be the duty of the court of appeal to order a retrial. this was the position previously. it safeguards the constitutional function of the jury. it avoids undue speculation by the court of appeal on what led the jury to its verdict. it minimises the risk of a retrial but by a court of judges, operating under a severe disadvantage. it conforms to international human rights law which requires that a person should be convicted only upon evidence brought against that person at a trial. as the additional evidence was not at the trial, the conviction cannot logically rest upon it. the expense and inconvenience involved in restoring this approach will be a small price to pay if miscarriages are thereby diminished and the confidence of the community is recovered. it is out of recognition of these considerations that demands are now made for change in the appellate rules. in the united states of america, where the constitution builds protections for due process into the earlier phase of criminal investigation, appellate review of criminal convictions has, until lately, been limited.91 only in recent years has it begun to approach even the imperfect standards which we have taken for granted.92 in australia, celebrated cases have attracted the necessity of royal commissions and other judicial inquiries. in my own state, a particularly useful procedure of judicial inquiry and report, frequently utilised, is provided under the crimes act. section 475 provides: "whenever, after the conviction of any person any doubt or question arises as to his guilt ... or any mitigating circumstance in the case, or any portion of the evidence therein, the governor on the petition of the person convicted, or some other person on his behalf, representing such doubt or question, or the supreme court of its own motion, may direct any justice to ... summon and examine on oath all persons likely to give material information on the matter suggested." 90. see, e.g., the recent line of authority in the high court of australia: jones v. hyde (1989) 63 a.l.j.r. 439, 351; abalos v. australianposcal commission (1991) 171 c.l.r. 167, 178. cf. winter & a nor. v. boynton & anor., unreported, c.a., 1 february 1991, the times 6 february 1991. 91. k. hegge, "attorney error: the martinez miscarriage of justice solution", 17 pacific l.j. 213, 230 (1985) discussing people v. martinez 36 cal. 3d 816, 826 (1984) (s.c. cal.). 92. see varley, supra n. 15. 115 the denning law journal in practice, such investigations are usually initiated by a petition to the supreme court. a judge of the supreme court is appointed to conduct the inquiry if, administratively, the court considers that course justified. if doubt about the conviction is reported to the governor, the executive government invariably recommends a pardon. this procedure, which is outside the ordinary criminal appeal, respects the constitutional role of the courts by the convention that the investigation is done by a judge of the court. at this very time, an investigation by a judge is under way into a petition complaining about the alleged un safety of a conviction in 1965 based upon forensic evidence. it is the second such investigation of the same case.93 the controversy posed by recent experience in england relates to the institutional arrangements which should replace review by the court of appeal, whether on the appeal of the prisoner or reference of the home secretary. the suggestions put forward include the enhancement of the procedures of the appellate court; the creation of a new appellate court; or the creation of an entirely different tribunal to include persons other than judges.94 whilst i understand those who defend the constitutional propriety of review by courts, honesty requires me to say that the strongest argument for a separate tribunal is the extreme difficulty which appellate judges face in finding the time to reconsider all, and i mean all, of the evidence at the trial in order to decide whether a conviction can safely stand or must be set aside and a new trial ordered. on the other hand, i can also understand the fear of a non-judicial tribunal, serviced by officials, standing outside the independent judicial branch of government, empowered to set aside jury verdicts and to put at nought the sentences publicly pronounced by judges. a compromise which respects the jury, upholds the public trials, maintains the openness of criminal procedure yet deals more resolutely and effectively with suggested miscarriages is what is needed. statutory provisions which make clear the warrant of the court of appeal to set aside a risky verdict, requiring a retrial by jury on all available evidence, is to be preferred. 95 a supplementary procedure for extra curial but judicial investigation originally existed under your statute but was repealed for lack of use. in the light of experience elsewhere it may be a procedure 93. an inquiry into the conviction of alexander mcleod-lindsay now before loveday j, (previously before lee j). 94. see proposal by d. jeffreys at third annual bar conference 1988, london noted (1988) 14cwlth. l. bulletin 1400, i404et seq.; discussion by lord scarman, n. 28 supra and by justice, n. 32 supra. note p. o'connor, "the court of appeal: re-trials and tribulations", [1990] crim. l.r. 615, p. 625; "appeals system criticised", (1990) 5 constitutional reform no.3, p. 2. 95. c/. p. drummond v. r. (no.2) (1990) 46 a. crim. r. 404 (n.s.w.c.c.a.). the australian authorities are to be found in mickelberg v. the queen (1989) 167 c.l.r. 259; 43 a. crim. r. 182; gallagher v. the queen (1986) 160 c.l.r. 392; 20 a. crim. r. 244; chamberlain [no.2] v. the queen, supra n. 16, at pp. 532,604; morris v. the queen (1987) 163 c.l.r. 544, 561 and neil chidiac v. the queen (1991) 65 a.l.j.r. 207, p. 210 et seq. where the obligation on the court of criminal appeal to conouct its own idoepenoentidvestigation is repeatedly emphasised. see also g. robertson, freedom, the individual and the law 6th ed., penguin (1989), pp. 303-313. 116 miscarriages of justice our lamentable failure? which should be revived. it has the advantage of maintaining judicial review but conserving such cases to a single judge, who will typically have more time to devote to the inquiry whilst the appellate judges get on with their often mundane and tedious, but necessary work, where judicial skills are unchallengeable, of reviewing convictions for error of law or in directions given to the jury. a passion for justice reviewing the feature film on the chamberlian case, the guardian newspaper in england declared:96 "one comes away from the film feeling that a society with such a capacity for self-criticism must possess a good deal of inner strength." i can now repay that compliment. the age newspaper in melbourne, commenting on the release of the birmingham six, recently declared:97 "there is something positive to be said for a system that, standing condemned, is able to find itself guilty." what first takes us into the law? for some of us, it maybe a family tradition. for a few, it may be the hope of high salaries or rapid advancement to positions of power. civil honours, decorations, a life dramatic in youth and honoured in old age. well,that is not enough. delivering his holdsworth lecture on "the lawyer and justice", lord cross of chelsea declared:98 "our law schools [too] turn out men and women who, as well as becoming competent practitioners, take a keen interest in the quality of our substantive law and the efficiency of our legal system and intend to do what they can in the course of their professional lives to improve them." he went on:99 "when my obituary comes to be written i do not suppose that it will be said of me that as a judge i always strove to do justice. but if it is said and in my then place of residence i am permitted to read the times i shall not regard it as an unqualified compliment." yet that is what most of us would wish to have said. that we strove for justice. 96. cited by the author in his afterword to young, supra n. 16, p. 290. 97. the age, 16 march 1991. 98. holdsworth lecture, 1973, in p. w. harvey (ed.), the lawyer and juslice, sweet and maxwell (1978), p. 117 el seq., 99. ibid., p. 110. 117 the denning law journal that never like pilate did we wash our hands. that we were ever alert to the risk that we might become instruments of wrongdoing and of injustice to a fellow human being. we should never be content with the forms of justice. as judges, above all, but as lawyers of every rank, we should daily renew our commitment to justice according to law. and the first obligation of that commitment is to strive for justice. nowhere is that mission more vital than in criminal investigation, at criminal trials and in criminal appeals. here is where our system is most accurately tested. it is here that its fairness matters most. and now we wander out into the streets of this famous city. not far from here the precious legacy of english law was nurtured; on the fragile ships, down the thames, that law travelled to every continent, including my own. even as i speak, courts in far away lands are applying the wisdom of judges carefully written down and recorded in years gone by in this metropolis. it is a mighty legacy. it ranks with the english language, english literature, english ideas of freedom, english sports and english commitment to commerce and science. these are the abiding gifts of the english. it is imperative thatthis generation should prove itself worthy to receive, and capable to enhance, this most remarkable legacy. in his four quartets, t. s. eliot declares that:! "right action is freedom we ... are only undefeated because we have gone on trying." we, the judges and lawyers, must go on trying to improve the system of criminal justice. without arrogance or self-satisfaction we must learn from the lessons which miscarriages of justice teach us. we must have the humility to acknowledge error. we must have a sense of urgency to ensure improvements in our institutions. and we must never rest content with institutional injustice which we have failed to repair when it was in our province to do so. doubtless these are most exacting standards. but it is the highest tribute to our judicial forebears that they are the standards which our communities expect of us today. we must not fail. 1. t. s. eliot, the dry salvages in four quarrers. 118 reforming the formal requirements for the execution of a will professor gareth miller* introduction a will takes effect only on the death of the person making it and it has long been recognised that some formality is necessary to ensure that a will embodies the true intention of the testator. i as the law reform commission of new south wales said, the law of will " ... must operate at a time after the principal actor has left the stage. the fact of death removes the best witness, leaving the court with only secondary materials with which to judge what that witness really intended. "2 others who might testify as to his or her intentions may have pre-deceased him or their memory may fail them or they may be affected by self-interest. the formalities prescribed for a will must therefore perform a number of functions.3 first, they should ensure that the statements of the deceased regarding the devolution of his property were truly intended to have dispositive effect and were not made inadvertently or by way of draft or even in jest. this ritual function requires that the formalities are such as to enable a court to infer that the testator must have understood the seriousness and significance of the act he was performing. secondly, the formalities have an evidentiary function, namely increasing the reliability of proof as to the deceased's intentions. thirdly, formalities may have a part to play in protecting the testator from the improper pressure and influence of others at the time of execution. fourthly, formalities should help to achieve a degree of standardisation so that the classification of documents of transfer is made easier and their processing more efficient and less expensive.4 this has ben called the channelling function. on the other hand, it is clear that formalities represent a limit on the power to dispose of property. failure to observe strictly the prescribed formalities will cause a will to be rejected however clear it may be that it embodies the wishes of the testator as to the disposition of his property. they represent a hurdle at which many a would .• school of law, university of east anglia. i. an elaborate procedure for wills of real property was introduced by the statute of frauds 1677. 2. l.r.c.47 (1986) wills-execution and revocation, para.3.2. 3. see gulliver and tilson, "classification of gratuitous transfers", (1941) 51 yale l.j. i and miller. the machinery of succession (1977), ch.l. 4. for an example of a case where documents had to be classified as testamenary by the court, see milnes v. foden (1890) 15 p.d.105. see also the discussion in in re berger deceased [1990] i ch. 118. 71 the denning law journal be testator has fallen.s a balance has to be struck. for some time many in the common law world have felt that an appropriate balance was not being achieved. during the last quarter of a century the formalities have come under close scrutiny and some jurisdictions have been much bolder than others in the direction of reform. this article looks first at developments in england and then at developments in other parts of the common law world. the witnessed will a distinctive feature of the law of succession in the common law world is what may be called the "witnessed will. " this can be said to have been introduced into english law by the statute of frauds 1677. it was refined by section 9 of the english wills act 1837, which prescribed formalities for a valid will which remained unchanged in england for almost one hundred and fifty years. section 9 became the model for many, perhaps most, common law jurisdictions. however, it was not only the formalities themselves which were adopted but also their strict interpretation by the courts. the traditional view is that literal compliance is essential if a document is to take effect as a will. one approach to reform has been to seek to reduce or modify the prescribed formalities. the other has been to relax the requirement of literal compliance by conferring some form of dispensing power on the probate court. 6 formalities in england (1) reform in england the law reform committee in their report on the making and revocation of wills rejected the idea of introducing a dispensing power and recommended two changes to the formalities prescribed by section 9.7 these changes were carried into effect by the administration of justice act 19828 and the reformulated section 9 has now been in force for ten years. there have been only two reported decisions on the reformulated section, but they give a good indication of the problems involved in interpreting the statutory requirements. 5. see, e.g., re davies [1951] i all e.r. 921; re colling [1972] i w.l.r. 1440. 6. a reduction in formalities may of course be combined with the introduction of a dispensing power. another approach is to increase the required formalities so as to emphasise the importance of the act of making a will and encourage the use of professional assistance. this is inspired by the notarial will in civil law countries and has led to attempts to make wills self proving as in the uniform probate code s.2-504. it also underlies the concept of the international will recognised in the administration of justice act ]982, s.27. see also the report of the justice committee on home made wills (1971). 7. twenty-second report (1980) cmnd. 7902, paras.2.4-2.6. 8. s.17. 72 reforming the formal requirements for the execution of a will section 9 has at all times required a will to be in writing and signed by the testator or by some person in his presence and by his direction. it also continues to require the signature to be made or acknowledged by the testator in the presence of two or more witnesses present at the same time (who must also subscribe their names as witnesses). in its original form section 9 required a testator's signature to be "at the foot end of the will." this requirement was removed by the 1982 act and replaced by the requirement that it must appear "that the testator intended by his signature to give effect to the will. " the second change made by the act of 1982 was in relation to the signature of the witnesses. in its original form section 9 required the witness to attest and then subscribe the will in the presence of the testator. this was relaxed by the 1982 act to the extent that a witness may now either (i) attest and sign the will, or (ii) acknowledge his signature in the presence of the testator though not necessarily in the presence of the other witness. (2) the cases (a) re white deceased the first case in which the reformulated section 9 was considered was re white9 where mr. andrew park qc, sitting as a deputy high court judge, was concerned with alterations made by the testator in 1984 to a will which he had duly executed in 1981. the testator made the six alterations which he desired in manuscript on his copy of the will. he then dictated the alterations to the second defendant who wrote them in manuscript on the original will. the testator was then handed the original will and, having checked it, he wrote in his own handwriting in a blank space at the foot of the last page of the will: "alterations to will dated 14-12-84." they were joined by another person who was asked to sign as a witness. he did so after the word "witnesses" which the testator had written, and the second defendant also added his signature at that point. the testator, who had signed the will in 1981, did not sign it again in 1984. the judge first considered whether the amendments to the will in 1984 were valid as alterations by virtue of section 21 of the wills act 1837. an alteration to a will may be valid under section 21 if it has been executed in like manner as required by section 9. it was clear that each alteration had not been so executed. neither the testator nor the witnesses had purported to execute each alteration as required by the first limb of section 21. in this sense the judge was clearly right to conclude that "the alterations to the will were not signed by the testator nor were they signed by any other person in his presence and by his direction," and that when the two signatories "wrote their names against the word 'witnesses' they were not purporting to sign the alterations. "10 it followed, in his view, that the alterations could not be valid by virtue of section 21 and he went on to consider whether the process by which 9. [1991] ch.l. judgment delivered january 15, 1990. 10. ibid., at p.8. 73 the denning law journal the amendments were made amounted to the making of an entirely new will complying with section 9. he concluded that the testator had failed to comply with three out of the four requirements of section 9. there appears to have been no discussion of the second limb of section 21 which reads as follows: "but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written atthe end or some other part of the will." this, it is submitted, can be regarded as providing a means whereby the whole will, including the alterations, can be validated which is separate from a re-execution of the will under section 9 which might take place for reasons other than an alteration in the wording of the will. this might have been crucial to the interpretation of what the testator and the signatories did in 1984 and might have led to a different conclusion from that reached by the court in the light of arguments based, it seems, principally on section 9. it is possible that what they did could be regarded as satisfying the second limb of section 21 even if it did not satisfy paragraph (d) of section 9, though section 21 does not provide for an acknowledgement by the testator of a signature made on a previous occasion. this will be discussed further in relation to the interpretation of paragraph (d). (b) wood v. smith the second case was wood v. smith" heard by mr. david gilliland qc sitting as a deputy high court judge and then by the court of appeal. this was concerned with the efforts of percy winterbone to make a new will two days before he died. the new will was in his own handwriting and it started: "my will by percy winterbone of 150b high street margate .... " he did not sign his name at the end ofthe will. the only place where his name appeared in his own handwriting was in the commencement of the will as already quoted. when one attesting witness pointed out to him that he had not "signed" the will, percy winterbone replied: "yes i have. i have signed it at the top. it can be signed anywhere." the two witnesses signed at the bottom of the will. the judge refused probate to the handwritten document. in essence he held that when the document was "signed" by percy winterborne it was not a valid will. he accepted the argument that there had to be something in the nature of a testamentary disposition in existence which could be signed. accordingly, when the testator wrote his name on the document he could not by that "signature" have intended to give effect to the dispositive dispositions which followed. the court of appeal took a different view holding that "if the writing of the will and the appending of the signature are all one operation, it does not matter whereabouts on the document or when in the course of the writing the signature is appended." 12 ii. [1993] ch.90. judgment at first instance was delivered june 27. 1990 and in the court of appeal on february 20, 1992. 12. ibid., at p.112. 74 reforming the formal requirements for the execution of a will however, the court of appeal held that the judge had been entitled to find that the onus of establishing percy winterbone's testamentary capacity had not been discharged. the document therefore failed as a will, but the judgments provide an important discussion of the interpretation of the amended section 9. (3) interpreting the amended section 9 (a) the signature of the testator the two cases highlight different aspects of the requirement of a signature. the first question is what can amount to a signature for this purpose. is a signature the same thing as writing your name? in wood v. smith it was clear that percy winterbone had written his name on the document concerned, but it was not clear from the document that this should be regarded as his signature. at first instance, a submission that it was not a signature at all was not pressed in the light of decisions on section 40 of the law of property act 1925. in the court of appeal,13 scott lj said that no assistance could be gained from such cases since the object of a signature in a memorandum under section 40 was to identify a party to a contract whereas the object of a signature by a testator is to authenticate the written document in question as the will of the testator. he indicated the wide scope of the concept in this context when he said: 14 "a signature is usually, but need not be, the signer's name. the signature may consist of initials. it may, in the case of a person who cannot write, be merely a mark. it must be appended to the document either by the signer or by some person acting at the signer's direction and in the signer's presence." the difficulty in wood v. smith at first instance at least lay in paragraph (b) and this too was the case in re white. however, re white draws attention to the need to view this first requirement in the context of section 9 as a whole. the first method of complying with section 9 is by writing the signature personally at the operative time. it is submitted that the judge in re white was right to conclude that the' 'writing by the testator on the document in 1981 was in no sense part of the process of the creation of the 1984 will on 14 december 1984." 15 however, this need not have been fatal for the writing of the signature, whether by the testator personally or by some other person in his presence and by his direction, is only one method of complying with section 9. section 9 also envisages the acknowledgement of a signature placed on the will by the testator before the start of the section 9 process or ceremony. this will be considered in relation to (iii) below. 13. ibid., at p.ll!. 14. ibid. 15. [1991] ch.l, at p.9. 75 the denning law journal (b) the position of the signature in wood v. smith the judge at first instance refused probate to the handwritten document on the basis that there had to be something in the nature of a testamentary disposition in existence which could be signed. accordingly, when percy winterbone wrote his name on the document he could not by that "signature" have intended to give effect to the dispositive provisions which followed. 16 the court of appeal took a wider view. scott u, giving the judgment of the court, said that: 17 "a normal signature placed at the foot of a testamentary document would in most cases carry the implication that the testator intended the signature to give testamentary effect to the document. affirmative evidence rebutting that implication would. . . be needed if it were to be contended that paragraph (b) had not been satisfied." on the other hand, the writing by a testator of his name on a testamentary document, as for instance by writing 'my will by john smith' or perhaps by typing 'the will of john smith' or in some other passage that left it uncertain whether in doing so he was intending to authenticate the document, would not, by itself, satisfy either paragraph (a) or paragraph (b) of section 9. in such a case affirmative evidence that, in writing his name, the testator did intend to authenticate the document would be necessary. sufficient evidence of that intention would, in his judgment, both justify treating the written name as his signature and also satisfy the requirements of paragraph (b). it followed that he agreed with the judge that the written name, not being a normal signature, is capable of being a signature for paragraph (a) purposes but he did not agree that the signature must necessarily, if paragraph (b) is to be satisfied, be appended to the document after the substantive testamentary contents have been written on the document. he said that' '. . . if the writing of the will and the appending of the signature are all in one operation it does not matter whereabouts in the document or when in the course of the writing the signature is appended. "18 in wood v. smith the writing by the deceased of the contents of the april 18, 1986 document was completed in one operation. he left open the question of what the position would have been if, "say, half of the contents including the signature had been written on one occasion and the rest of the contents on another, later, occasion, with the deceased indicating on the later occasion to the two witnesses that he regarded his signature as authenticating the whole contents. . ." however, he did say that having regard to certain observations 16. [1993] ch.90, at p.97. 17. ibid., at p.111. 18. ibid., at p.1l2. he agreed with the example given by andrew park qc in re white [1991] ch. i, at pp. 8-9 that a valid will would be created where, "first, the testator takes a blank piece of paper and signs it at the bottom. secondly, as part of the same continuing process, he writes above his signature 'this is my last will and testament. i leave everything to my wife.' third, he gets his signature attested by two witnesses. in that case it is all one operation, and it could not matter that he wrote his signature on the document before the dispositive wording of the will." 76 reforming the formal requirements for the execution of a will made by mr. park in his judgment, he was not satisfied that the requirements of paragraphs (a) and (b) would necessarily not have been satisfied.19 (c) the signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time. in wood v. smith20 the judge said that "if (b) is not satisfied there can be no signature which can be acknowledged under section 9(c)." as noted above, paragraph (b) was not in his view satisfied in that case because at the time percy winterbone wrote his name on the document there could not be said to be any will in existence to which the signature could have been intended to give effect. however, this seems to assume that the intention required by (b) is to be judged in all cases at the time the signature is written. it is submitted that this is not so. a testator may choose one of two ways of executing his will personally.2\ he may sign the will in the presence ofthe witnesses, or he may acknowledge in the presence of the witnesses the signature which he previously placed there. if he chooses the latter it should not matter when the signature was placed on the document and, moreover, it is by reference to the time of acknowledgement that the intention required by (b) must be satisfied. by the process of acknowledgement the testator has identified his signature and the fact that he was intending thereby to give effect to the will. in wood v. smith it appears that the two witnesses were in fact present while the testator was writing out the document and so in that sense were present when he signed it. however, it could be argued that what percy winterbone did amounted to an acknowledgement of his signature. on that basis there was a signature and at the time of acknowledgement he intended thereby to give effect to his will. however, whether or not such a conclusion is justified on the facts, the important point is to recognise the two methods open to a testator and to recognise that the paragraphs must be read as a whole. there is a danger in reading the paragraphs of section 9 in isolation. in the court of appeal the judgment of scott lj appears to leave open the possibility of this argument being accepted. 22 in relation to the facts of the case before him he noted that the deceased had indicated in clear terms to the witness that he regarded his name, written by him as part of the phrase "my will by percy winterbone", as being his signature. that, in his view, established' 'his writing of his name as his signature for paragraph (a) purposes." the evidence established also that "the deceased intended, by writing 'my will by percy winterbone,' to give testamentary effect to the document he was in the course 19. [1993] ch.90, at p.113. 20. ibid., at p.103. 21. the actual signature may alternatively be that of another person acting on the direction of the testator, i. e. a proxy signature 22. [1993] ch.90. at p.112. 77 the denning law journal of writing. " the evidence satisfied, in his judgment "the paragraph (b) requirements in respect of the contents of the document as a whole. "23 in other words the requirements of section 9 were satisfied by the writing of his signature with the necessary intention in the presence of the two witnesses. it was therefore unnecessary to consider the question of acknowledgement. unfortunately, although the requirements of section 9 had been satisfied, the court went on to find that the deceased had lacked testamentary capacity. the facts of re white may be thought to present more difficulty because the signature clearly relied upon by the deceased and validly acknowledged (as found by the judge) was not written as part of the same process as the 1984 execution. certainly it was also part of the process of the execution of the original will. however, the bulk of the "1984" document (i. e. minus the alterations) had been written in 1981. if paragraphs (a) (b) and (c) are viewed as a whole then the time when the signature was written is not crucial if it is subsequently acknowledged. the deputy judge said that the effect of paragraph (c) was that the testator's signature must have been either made or acknowledged by him in the presence of the two witnesses to the 1984 document. while it was certainly not made in their presence, it might be that it was acknowledged in their presence. he noted that in daintree v. butcher24 cotton u said: . it is not necessary for the testator to say 'this is my signature,' but if it is placed so that the witnesses can see it, and what takes place involves an acknowledgement by the testator that the signature is his, that is enough." the deputy judge said that although his general conclusion was that the conditions of section 9 were not satisfied, he "would be disposed to accept that this particular condition (c) was satisfied. "25 it is submitted that this was correct but, with respect, if it was accepted that there was a valid acknowledgement in 1984, then paragraphs (a) and (b) should have been judged on the same basis. (d) attestation and signature by the witnesses in woodv. smith no question was considered to arise in relation to paragraph (d) either at first instance or in the court of appeal. however, in re white the altered will was considered to have failed on this ground too. the deputy judge accepted the view that what they had attested were the alterations to the 1981 will and not the amended will as a whole. the conclusive fact in his view was that what the testator had written at the end of the will (and immediately preceding the signatures of the 23. ibid. 24. (1888) 13 p.d.102, at p.103. 25. [1991] ch.1, at p.lo. 78 reforming the formal requirements for the execution of a will witnesses) was "alterations to will" and not, for example, "altered will".26 the deputy judge relied upon two cases, in the goods of martin27 and in the goods of shearn. 28 it has already been noted that section 21 envisages two ways in which alterations to a will can be made effective. the first is if the alteration is executed in the same way as a will. secondly, the whole will, including the alterations, is deemed to be duly executed "if the signature of the testator and the subscription of the witnesses is made . . . at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end of some other part of the will. " in manin the testatrix had simply traced her dry pen over her original signature on the will. sir herbert jenner fust said: "there is not any notice in the attestation clause of the re-execution of the will, nor is there in any part of the instrument, a memorandum referrring to a due execution of the alterations. the signatures of the attesting witnesses alone appear in the margin near the alterations. "29 he rightly concluded that" ... as the instrument appears on the face of it they attested the alterations only. "30 similarly in shearn, where the testatrix relied on an acknowledgement of her original signature on the will, the two witnesses' 'placed their initials in the margin of the paper opposite the interlineations. "31 in no way could the initials be related to a signature elsewhere in the will. in both cases the testatrix had not chosen to sign at or near the alterations. she had chosen to acknowledge her signature at the end though without incorporating any memorandum as specified in the second limb of section 21. in contrast, in re white the witnesses had not placed their initials near the alterations but near a memorandum written by the testator at the end of the will. this was similar to re dewe1l32 where the testatrix had again relied on acknowledgement of her original signature, and the witnesses had not only placed their initials in the margin opposite the interlineations, but had also placed their names immediately below a memorandum at the end of the will. the amended will was admitted to probate. it is true that the memorandum in re dewel/33 may have been more elaborate than the terse words of the testator in re white but had not the testator in the latter case done enough to satisfy the method envisaged in the second limb of section 21 ? this method requires the memorandum to refer to the alterations and this he had done. the "memorandum" had also been written at the end of the will and underneath the testatrix's signature as required, but the deputy judge considered that the force of the point was substantially removed by the circumstance that the words appeared 26. ibid., at p.11. 27. (1849) i rob. ece. rep.712. 28. (1880) 50 l.j.p.16. 29. (1849) i rob.eee.rep.712, at p.713. 30. ibid., at p.714. 31. (1880) 50 l.j.p.16. 32. (1853) i s.ece & ad. 103. the deputy judge in re while [1991] ch. i, disagreed with the result in re dewell. 33. ibid .. at p.l04. 79 the denning law journal on the only convenient blank space on either of the two pages on which the alterations had been made.34 however, section 21 envisages the memorandum being at the end of the will and the advantage of this method is that it avoids the need to initial each and every interlineation in the will.35 it appears that the evidence of the two witnesses was inconclusive and it was accepted that they probably thought that there was no difference between attesting the will and merely attesting the alterations. while the former rather than the latter is required for the purposes of paragraph (d) of section 9, it is arguable that what is required for the second limb of section 21 is attesting the execution of a memorandum referring to the alterations. whether or not the testator appreciated the distinction it seems that almost certainly he thought that he was giving effect to the whole document as altered. his expectation seems not unreasonable in the light of the wording of the second limb of section 21 rather than paragraph (d) of section 9. (4) the current position in england some of the difficulties which arose with section 9 in its original form have been removed by the amendment in 1982 permitting witnesses to acknowledge a signature made previously, thereby reversing re colling, but it is clear from re white and wood v. smith that others remain. it is true that there is little litigation in england about the formal requirements for the execution of a will. the number of contested probate applications is small. in 1991 there were 200 and in 1992 there were 109.36 the number of wills rejected is also small. the justice committee reporting in 1971 were informed by the principal probate registry that probate of a will was refused only an estimated eighty to a hundred times a yeary in 1978, at the request of the law reform committee the principal registry of the family division conducted a survey of all wills submitted to probate in england and wales during the period september 4th to december is1.38 this showed that the total number of wills admitted to proof was 40,664 and the total number rejected was 97, that is, about 0.24 per cent. in the case of91 of those rejected (93.8 per cent), the will was homemade. the total number of wills rejected for failure to comply with section 9 was made up as follows: (a) testator's signature incorrectly placed (b) less than two witnesses (c) witnesses not present at the same time (d) not signed in the testator's presence (e) other reasons (including 9 not signed by the testator) 8 ( 8.6%) 34 (36.6%) 20 (21.5%) 19 (21.5%) 12 (12.9%) 34. [1991] ch.l, at p.11. 35. it is true that doubt may arise if there are several alterations which are not individually specified in the memorandum but this will depend on the facts of an individual case. 36. civil judicial statistics (1992) p.20. 37. home made wills, p.2. 38. 22nd report, the making and revocation of wills. cmnd.7902, annex 2. 80 reforming the formal requirements for the execution of a will however, this is not necessarily the whole picture for many "wills" may not be put forward for probate as they so obviously fail to comply with section 9. even if the problem appears limited in its effect to a "tiny minority" of cases39 this does not mean that alternative approaches need not be considered especially when such approaches are being adopted in other common law jurisdictions. it may well be a matter of great practical importance in as many as 400 cases a year. it may be argued too that the present approach enables the court to concentrate on the written document and avoid the dangers inherent in considering oral evidence of the testator's intention. the underlying idea is perhaps that somehow the document should speak for itself that it be self proving. this is not, in fact, the case. a properly prepared attestation clause (which is not essential) may in practice perform this function in many cases (even though execution was defective).40 however it does not prevent oral evidence being presented to show that the execution ceremony was not in fact properly carried out. in re colling41 ungoed thomas j said of section 9: "the section is designed for the avoidance offraud: but it is open to the comment that, in any event, oral evidence has to be relied upon of the circumstances in which the signature or mark of the testator and the witnesses are appended to the document. so that despite the requirements of the section, the requirement of oral evidence is itself embedded, although not expressly, in the terms of section 9 itself. it is, perhaps, unfortunate, particularly in circumstances where the section itself contemplates oral evidence as necessary, that the section has manifestly on occasion, defeated the intention of the testator and, in some cases, of which this is one, glaringly so." the 1982 act may have removed the pitfall that proved fatal in re colling, but others remain. oral evidence may show that the testator did not sign or acknowledge his signature in the presence of both witnesses present at the same time or that one of the witnesses signed the will in the absence of the testator. 42 moreover, the reformulated section 9 requires the court to consider more directly the intention ofthe testator in relation to the signature. is it more difficult to consider whether percy winterbone, the testator in wood v. smith, intended the document to be his will than to determine whether he intended the writing of his name in a particular place to give effect to his will? is it not avoiding the real question at issue? 39. ibid.• para.2.5. 40. in the absence of such a clause the witnesses will be required to swear affidavits confirming that the statutory requirements were complied with. if the witnesses are no longer available then reliance may be placed on the maxim omnia praesumuntur rite esse acta. 41. [1972] 1 w.l.r.1440, at p.l441. 42. see, e.g. re groffman [1969] 1 w.l.r. 733. 81 the denning law journal a dispensing power (1) the growth of the idea the idea of conferring a dispensing power to enable a court to admit to probate a will notwithstanding failure to comply literally with the prescribed formalities has in practical terms been developed principally in australian jurisdictions, starting with south australia in 1975.43 one canadian jurisdiction has also introduced such a power.44 in 1989 the scottish law commission recommended the introduction of a dispensing power. 45 ill 1990 the uniform probate code was revised to include a dispensing power. 46 the idea of a dispensing power now has a significant support in the common law world. the idea has not, however, been translated into practice in identical terms in all jurisdictions. indeed, the form of a dispensing power has also been a matter of debate and clearly influences views as to desirability. two main approaches a,re evident in existing statutory provisions while some proposals suggest further possibilities.47 (2) the "testamentary intention" approach the first approach may be called "the testamentary intention" approach. the best known example is section 12 of the wills act 1936-1975 of south australia. this provides as follows: "a document purporting to embody the testamentary intentions of a deceased person shall, notwithstanding that it has not been executed with the formalities required by this act, be deemed to be a will of the deceased person if the supreme court, upon application for admission of the document to probate as the last will of the deceased, is satisifed that there can be no reasonable doubt that the deceased intended the document to constitute his will." in the first reported case on this provision the testatrix, having signed her will, gave it to her nephew and told him to "get it witnessed". he took the document to two neighbours who knew the testatrix, and they both signed the document "as 43. the underlying inspiration for much of the development has undoubtedly been the article by professor langbein. "substantial compliance with the wills act", (1975) 88 harvard l.r.489. it should be noted that israel introduced such a power in 1965: israeli succession law 5725, s.25. 44. manitoba, wills act, s.23. see also law reform commission of british columbia, report no.52 the making and revocation of wills (1983), p.54. in 1987 the uniform laws conference of canada approved a dispensing power for the canadian uniform wills act. 45. scot.law com. no.124, report on succession, para.4.20. 46. s.2-503. 47. see the writer's earlier article, "substantial compliance and the execution of wills", (1987) 36 i. c.l. q. 559, and langbein, "excusing harmless errors in the execution of wills: a report on australia's tranquil revolution in probate law", (1987) 87 col.l.r.1. 82 reforming the formal requirements for the execution of a will witnesses". there was independent verification of the signature of the testatrix and the witnesses verified their own signatures. jacob j said that he had "not the slightest doubt that the deceased intended the document ... to constitute her will", and it was admitted to probate.48 there have been a number of subsequent cases where a document has been admitted to probate notwithstanding that the witnesses were not present or both present when the deceased made or acknowledged his or her signature. it has also been applied where there was no witness to the testator's signature. most significantly, it has been applied in the case of documents which had not been signed by the testator. in in the estate of blakely,49 a husband had signed his wife's will by mistake and she had signed his will by mistake. after the death of the husband the document signed by the wife was admitted to probate as the husband's will as there was no reasonable doubt that the husband had intended the document to constitute his will. in in the estate of williams, 50 a husband and wife had again arranged to execute their respective wills on the same occasion. unfortunately, the wife omitted to sign her will though two neighbours had signed as witnesses. the full supreme court agreed in admitting the will to probate. king cj said:51 "signature is simply one of the formalities required by the act for valid execution. there is no reason, as a matter of construction or logic, to differentiate between signature and any of the other formalities for execution required by section 8. all that is required for the operation of section 12(2) is that there should be 'a document purporting to embody testamentary intentions of a deceased person' and that the court 'is satisfied that there can be no reasonable doubt that the deceased intended the document to be his will.' " the statutory provisions in western australia and the northern territory are in almost the same terms as section 12(2).52 the same broad approach is adopted in new south wales except that the court is not required to be satisfied as to the deceased's intention "beyond all reasonable doubt". it also expressly provides that in addition to the document the court may have regard to any other evidence relating to the manner of execution or testamentary intentions of the deceased, including evidence of statements made by the deceased person.53 the law reform commission of manitoba had also recommended that the relevant standard of proof should be that 48. re graham (1978) 20 s.a.s.r.198, at p.201. 49. (1983) 32 s.a.s.r.473. 50. (1984) 36 s.a.s.r. 423. 51. ibid., at p.425. 52. wills act 1970. s.34 as inserted by the wills amendment act 1987 (western australia); wills act 1938 as amended by the wills amendment act 1984 (northern territory). 53. wills, probate and administration act 1898, s.18a inserted by the wills, probate and administration (amendment) act 1989. 83 the denning law journal applicable generally in civil matters, namely proof on the balance of probabilities, and the ensuing provision likewise does not require proof beyond reasonable doubt. 54 both the new south wales and the manitoba provisions are worded so as to make it clear that defects in revocation and alteration as well as in execution of a will are covered though the absence of such a provision in south australia has not prevented the application of section 12(2) to alterations and additions to a will.55 the new provision in the uniform probate code also falls into this category. the code had already reduced the requirements for a witnessed will. under section 2-502 a will must be: (1) in writing; (2) signed by the testator or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction; and (3) signed by at least two individuals, each of whom signed within a reasonable time after he (or she) witnessed either the signing of the will as described in paragraph (2) or the testator's acknowledgement of that signature or acknowledgement of the will. it goes on to provide that a will that does not comply with these requirements is valid as a holographic will, whether or not witnessed, if the signature and the material portions of the document are in the testator's handwriting. section 2-503 then provides: "although a document or writing added upon a document was not executed in accordance with section 2-502, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute (i) the decedent's will, (ii) a partial or complete revocation of the will, (iii) an addition to or an alteration of the will, or (v) a partial or complete revival of his (or her) formerly revoked will or formerly revoked portion of the will" (3) the "substantial" or "attempted" compliance approach the second approach directs the attention of the court, in practice at least, to the degree of compliance with the prescribed formalities. this approach is found in the queensland succession act of 1981. after prescribing the formalities for the execution of a will, which are essentially those of the original section 9 of the english wills act, section 9 of the queensland act goes on to provide that: 54. law reform commission of manitoba, report no.43, the wills act and the doctrine of substantial compliance, p.28; manitoba wills act, s.25. 55. see e.g., in the estate of possingham (1983) 32 s.a.s.r.227. 84 reforming the formal requirements for the execution of a will (a) the court may admit to probate a testamentary instrument executed in substantial compliance with the formalities prescribed by this section if the court is satisfied that the instrument expresses the testamentary intention of the testator; and (b) the court may admit extrinsic evidence including evidence of statements made at any time by the testator as to the manner of execution of a testamentary instrument. the first cases on this provision showed that it was not sufficient to satisfy the court that the document expressed the testamentary intention of the testator. it was necessary to show that there had been an attempted compliance with the prescribed formalities. this was a question of degree. in re grosert,56 the court found that there had been insufficient compliance when the testator had failed to sign the document in the presence of both witnesses. in re johnston,57 the court reached a similar conclusion when the document had not been signed by the testator in the presence of any witness. in the unreported case of re henderson,58 the full court refused an appeal from the judge's refusal to grant probate of a document signed in the presence of only one witness. the contrast with the decisions of the courts in south australia, and re graham in particular, will be obvious. two subsequent decisions are, however, more encouraging. the first is re matthews,59 where the deceased had completed a will form which he signed in the presence of one witness. he asked the witness to arrange for a neighbour to sign the document" as a witness". this was done but in the absence of the testator. carter j took the view that re henderson did not establish that where there was only one witness there could never be substantial compliance. taking into account the fact that the deceased was aware of the need for two witnesses and particularly the fact that no second witness was reasonably available, he held that it would be unduly harsh to insist on rigid formalities. this decision was distinguished in the subsequent case of re eagles,60 where the two attesting witnesses had not been present at the same time. williams j noted that unlike the position in re matthews, in the case before him there was no real urgency which compelled the testatrix to proceed in the presence of only one witness. what appears to have been of particular significance was that there was uncertainty as to the exact sequence of events. williams j said that where a party seeking probate was relying on there being "substantial compliance" there was an "onus on that person to establish with some degree of precision what had 56. [1985] i qd.513. 57. [1985] i qd. 516. 58. (1985) unreported. see de groot, "wills execution formalities-what constitutes substantial compliance?", [1990] queensland law society j. 93. 59. [1989] i qd. 300. 60. [1990] 2 qd. 501. 85 the denning law journal happened and when. "61 he had earlier noted that in re matthews carter j had been influenced by the fact that he was satisfied that the document expressed the testamentary intention of the testator. williams j commented: "that, in my view, will always be a relevant circumstance for the court to take into consideration, but it can hardly ever be decisive. !fthat was the decisive consideration then there would be no need for the formalities which have for centuries been associated with the due execution of a will. "62 this indicates the dangers of the queensland approach which still focuses on formalities rather than intention. the second encouraging case is re cashin,63 where the testator had again used a will form. the signatures of the witnesses appeared in different parts of the document. the first witness had witnessed the testator's signature and signed in his presence. the other witness had signed the will on the following day in the presence of the testator and the first witness. demack j said that it seemed that proviso (a) clearly indicated that parliament wanted to allow clear testamentary intention to override a lack of formality. it had chosen the words "substantial compliance" to define a judicial discretion.64 the word "substantial", when used in a quantitative sense, did not necessarily mean "most", but might mean "only" or "some". he continued:65 "what seems to me to be.important is that 'the court is satisfied that the instrument expressed the testamentary intention of the testator.' thereafter, the consideration of whether or not the testamentary instrument has been executed in substantial compliance with the formalities is a question that can only be answered according to the facts of each case." he concluded that in the particular circumstances of the case the lack of compliance had been slight, but warned that there might well be cases where a similar lack of compliance might be very significant indeed. (4) threshold requirements it will be noted that even where there is a broad dispensing power, as in south australia, writing remains as the one essential positive formal requirement that cannot be dispensed with. this does not mean that all the other requirements may be dispensed 61. ibid., at p.506. 62. ibid. 63. [1992] 2 qd. 63. 64. ibid., at p.65. 65. ibid. 86 reforming the formal requirements for the execution of a will with in one particular case. the absence of anyone or more requirements will affect the burden on the person propounding the will for probate. the greater the departure from the prescribed requirements, the greater the burden.66 it means that the requirement of writing is a threshold requirement to which the dispensing power cannot apply. it would be possible to prescribe more than one threshold requirement. this was recommended by the law reform commission of british columbia, who favoured a dispensing power combined with two threshold requirements of writing and the signature of the testator.67 in other words, the commission was prepared to see a document signed by the testator admitted to probate notwithstanding the absence of witnesses if the court was satisfied that the testator knew and approved of the contents of the will and intended it to have testamentary effect. the threshold requirements can be set at a lower level than the standard requirements for execution, so that the importance of the latter can be reaffirmed while enabling the court to alleviate failure to comply literally with those requirements in other aspects. this approach is not, therefore, the same as simply reducing the prescribed formalities. the disadvantage is that it narrows the scope of relief so that, for example, it would prevent relief in cases like blakeley and williams. the question of threshold requirements was considered by the scottish law commission which favoured the introduction of a dispensing power. they did not favour a dispensing power limited to cases where there had been "substantial compliance" with the normal requirements nor to cases where the testator had "attempted to comply" with those requirements.68 they were in little doubt, however, that the power should be limited to written expressions of testamentary intention. while choice of this requirement as a threshold could be said to be arbitrary, the justification for this was a practical one. oral expressions of intention would give too much scope for dispute and fraud.69 on balance the commission concluded that the signature of the testator should not be a threshold requirement for the exercise of the dispensing power. 70 they found strong support for confming a dispensing power to signed documents. it would reduce the number of difficult cases and reduce the opportunities for fraud. on the other hand, a "dispensing power limited to signed documents would not cover all the cases where such a power would be useful. it would not cover the type of case where, because of mistake, oversight or interruption, a testator omits to sign even though the circumstances leave no room for doubt as to his or her intention that the document should take effect as his or her will. it would 66. for a discussion of the appropriate standard 'of proof see langbein, "excusing harmless errors in the execution of wills: a report on australia's tranquil revolution in probate law,,' (1987) 87 col.l. r. i, at p.34. 67. law reform commission of british columbia, report no. 52, p.54. 68. scot. law com. no. 124, para.4.14. 69. it was acknowledged that this might not apply to certain types of oral will such as tape-recorded or video-recorded wills which might need to be examined at a later date. 70. scot. law com.no.124, para.4.16. 87 the denning law journal not meet the case where a husband and wife mistakenly sign each other's wills. "71 the absence of a signature should therefore be a factor to be taken into account by the court in deciding whether the document did represent the deceased's concluded testamentary intentions. it would no doubt weigh heavily with the court, but it should not be an absolute bar. (5) an evaluation it is hoped that this brief account has shown the advantages of a widely drawn dispensing power on the model of the south australia provision. objections to such a power have been voiced in particular by the law reform committee in england. the law reform committee was concerned about the increase in litigation which they considered would be likely to follow the introduction of such a power. 72a dispensing power can, of course, only be exercised if an application is made to the court an9 it is likely that some documents would be presented which are so obviously defective that they would not now be presented. some increase in litigation might therefore be expected, but, as the law reform committee acknowledged, some of this would be uncontested where the evidence of testamentary intention is strong.73 at any rate, it is unlikely that hopeless cases would be the subject of an application. moreover, such applications would replace existing attempts to show literal compliance with the prescribed formalities. efforts to establish a technical defect by someone who disliked the provisions of the will would be discouraged. in the first ten years or so of the operation of the dispensing power in south australia there were thirty-two applications.74 a higher figure could be expected in england in view of the larger population. the figures quoted above suggested that about 400 defective wills are presented for probate each year. not all of these would be made the subject of an application but there might be others not now presented which would lead to an application. even if there was some small increase in litigation, much of it probably by consent, would this not be preferable to allowing clear attempts to make a will fail in a not insignificant number of cases because of some technical defect?75 the law reform committee was also concerned that the courts would "not find application of their dispensing power an easy matter. "76 this does not generally seem to have been the case in south australia and other jurisdictions where such a power has been introduced. 77moreover, the first part of the article will, it is hoped, 71. ibid., para.4.15. 72. twenty-second report, para.2.5. 73. consultative document (1977), para. 13(g). 74. see law reform commission of new south wales, report no.47 (1986), para.6.1o. 75. there also seems to be an inconsistency in fearing an increase in litigation when it is also suggested that it is only in a "tiny minority of cases" that things go wrong. 76. para.2.5. 77. only in one reported case re kelly (1983) 34s.a.s.r.370, at p.384 has there been any expression of unease on the part of the court. see further (1987) 36 i. c.l. q.559, at p.582. 88 reforming the formal requirements for the execution of a will have shown that the question which the court faced in wood v. smith and re white were far from easy. what is of particular significance is the nature of the questions which the court has to face in each case. at present a court in england has to focus its attention on the formalities which are a means to an end. the real issue is whether a particular document was intended by the deceased to operate as his will. even if all the prescribed formalities are precisely followed, this is not guaranteed. thus it is recognised that the formalities may not perform the protective function and a duly executed will may nevertheless be refused probate because of lack of testamentary intent due to mental incapacity, fraud, undue influence, suspicious circumstances or mistake. the prescribed formalities are no guarantee of protection of the testator. the fact that the prescribed formalities have not been precisely followed should not prevent evidence that the document nevertheless incorporates the testamentary wishes of the deceased. in exercising a dispensing power such as that in south australia the court is facing the true issue was the document intended by the deceased to be his will? there is naturally a reluctance to admit oral evidence of the testator's intentions but there is a distinction between oral evidence as to intentions as to the disposition of property and oral evidence as to whether a particular document was intended to embody those intentions. to permit the former would be to permit an oral will. to permit the latter is to deal with the real issue with which section 9 is concerned. oral evidence is now admitted as to whether the formalities have been complied with and this includes evidence as to the testator's intention in placing his signature on the document. it would, of course, be possible to go to the other extreme and refuse to admit any oral evidence. this would seek to make the will' 'self-proving" and such a provision is also to be found in the uniform probate code. 78 this it does by providing in effect for increased formality in the shape of a prescribed certificate. this section 9 does not seek to do because presence of an attestation clause does not prevent oral evidence that the formalities were not complied with. a dispensing power would be open to objection if it led to a weakening in the attitude to formalities. however, this seems unlikely and has not proved to be the case in those jurisdictions which have a dispensing power. strict compliance remains the norm because testators and their advisers will always prefer to avoid litigation. there is an incentive to comply strictly, but a safety valve where something goes wrong usually because of a misunderstanding about the details of the formalities. 79 conclusion it may be argued that the problem of defectively executed wills affects a relatively small number of people and that there is a danger that a radical new approach may, by increasing litigation and contention amongst members of a family, provide a cure 78. s.2-504. the operation of such provisions has also not been without difficulty. see mann, "selfproving affidavits and formalism in wills adjudication", (1985) 63 wash.u.l.r.39. 79. see langbein, (1975) 88 harvard l.r.489, at p.524 and miller, (1987) 36 i. c.l. q.559, at p.575. 89 the denning law journal which is worse than the disease. the numbers affected cannot be stated with certainty, but bitterness within a family can be exacerbated by the inability to seek a remedy as well as by litigation. even if the number affected is not large is this a reason for denying the possibility of relieving the problem? the conclusions of the scottish law commission are worthy of note. they said:80 "we think that reform of the law is desirable in this area. some of the reported cases where the courts have been forced to deny effect to defectively executed wills cannot be read without a feeling that the law ought to be able to do better than this in giving effect to the wishes of the testators. we have no doubt that there are also cases which never reach the courts where everybody concerned recognises that a document cannot take effect because of some formal defect, such as the deceased's signature being in the wrong place. we do not regard this as satisfactory." they went on to say that the position was also unsatisfactory in relation to alterations and additions to a will. it is submitted that the same can be said of english law. moreover, the concept of a dispensing power has now gained acceptance in a significant number of common law jurisdictions. experience over almost eighteen years in south australia suggests that the adverse consequences feared by some have not materialised. the experience in south australia and queensland also show that a dispensing power focusing on the intention of the testator is preferable though the expression "substantial compliance" has performed a useful function in the development of the concept of a dispensing power. further consideration should now be given to the introduction of a dispensing power in england and wales. 80. scot.law com.no.124. para.4.13. 90 193 denning law journal 2020 vol 32 p 193-207 book review title: catch and kill: lies, spies and conspiracy to protect predators author: ronan farrow publisher: fleet/little, brown & company, london date of publication: 2019 hard back, pp 448 (including endnotes) title: she said: breaking the sexual harassment story that helped ignite a movement authors: jodi kantor and megan twohey publisher: bloomsbury circus/bloomsbury, london date of publication: 2019 hardback, pp 310 (including index) title: brave – a revealing and empowering memoir author: rose mcgowan publisher: harpercollins date of publication: 2018 hardback, pp. 245 (plus author’s note & preface ix-xvi) reviewer: dr jocelynne a. scutt, senior teaching fellow, university of buckingham. e-mail: jocelynne.scutt@buckingham.ac.uk on 6 january 2020 jury selection began in the trial of harvey weinstein, once famous together with his brother bob weinstein for establishing miramax films, a progressive filmmaking company. success heaped upon success, oscar win followed oscar win, actresses found their careers enhanced and innovative filmmakers looked to new york and miramax as a way of avoiding the increased control by accountants of the films produced by mainstream companies. yet behind the success lay complaints of harvey’s conduct, and payoffs accompanied by confidentiality agreements. the complaints did not go unremarked. the lawyers who arranged the settlements, the media which tamped down on the stories, the writers of the cheques knew. miramax accountants played a role in the running of the company, one that did not deter innovative filmmakers, although the same could not be said of the women who were subjected to the conduct, received the pay-outs, and signed the confidentiality agreements. as for those – like rose mcgowan, ashley judd, mira sorvino and more, who did not entertain any offers or settlements, nor sign any confidentiality agreements, as the word got around that they were ‘difficult’ and their careers suffered from blacklisting, accountants were far from their minds. just like that other period of blacklisting in 194 book review hollywood’s history, described so well by bruce cook in trumbo, the biography of ‘the oscar-winning screenwriter who broke the hollywood blacklist’,1 initially no supporters came forward. yet as with that earlier blacklisting period, although it has taken longer, now voices can be heard in recognition of wrong done. when harvey weinstein and his brother moved from miramax to set up the weinstein company, they left behind the vehicle that bore the combined given names of their parents, mira and max. but they did not leave behind the conduct that reputedly played a part in their moving on. as ronan farrow in catch and kill: lies, spies and conspiracy to protect predators and jodi kantor and megan twohey in she said: breaking the sexual harassment story that helped ignite a movement recount, the payoffs and the confidentiality agreements, the cover ups by lawyers and the media continued.2 harvey weinstein had learned no lessons. hence, in the month before his trial began, after ‘two years of legal wrangling’, weinstein and the board of the now bankrupt film studio ‘reached a tentative $us25m settlement agreement with dozens of his alleged sexual misconduct victims’.3 the deal, related by lawyers ‘involved in the negotiations’ as reported by the media, ‘would not require [him] to admit any wrongdoing or pay anything to his accusers himself’.4 this ‘global settlement’ involved ‘more than 30 actresses and former weinstein employees, who in lawsuits accused mr weinstein of offenses ranging from sexual harassment to rape’.5 the deal, it was said, ‘would bring to an end nearly every such lawsuit against him and his former company’.6 so, just as the accountants and the company had done in the past, before any civil proceedings reached the door of the court, accountants and the company settled the bill. harvey weinstein’s criminal trial proper began on 23 january. five charges involved three women. when the verdict came down, two charges resulted in a guilty verdict: forcing oral sex on actress and producer miriam haley,7 under new york law a criminal sex act in the first degree carrying a maximum 25-year 1 bruce cook, trumbo (scribner 1977). 2 ronan farrow, catch and kill: lies, spies and conspiracy to protect predators (fleet 2019); jodi kantor and megan twohey, she said: breaking the sexual harassment story that helped ignite a movement (bloomsbury 2019). 3 megan twohey and jodi kantor, ‘weinstein and his accusers reach tentative $25 million deal’ the new york times (11 december 2019) <https://www.nytimes. com/2019/12/11/us/harvey-weinstein-settlement.html> accessed 12 december 2019. 4 ibid. 5 ibid. 6 ibid. 7 miriam haley <https://www.imdb.com/name/nm2683663/> accessed 15 april 2020. the denning law journal 195 sentence, minimum five years; and third-degree rape of a woman unnamed by the media, carrying maximum of four years, no minimum. on three charges weinstein was declared not guilty: two counts of predatory sexual assault carrying a possible life sentence, and an alternative count of rape in the first degree.8 upon sentencing, harvey weinstein was taken into custody to serve 23 years. as he set out for rikers island, with a detour via bellevue hospital to spend 10 days suffering chest pains attributed to the heart, his attorneys immediately announced that the verdicts and the sentence would be appealed.9 readers who demur at the notion that books pertaining to this issue, this trial, this phenomenon should be reviewed in the denning law journal might take time to reflect upon why they adopt that position. lawyers who believe that their reading should be limited to ‘straight’ law or so-called black letter law and books concerning them may consider themselves in and of the legal elite. however, the best lawyers surely are those who take themselves outside their all-too-comfortable zone of assumed superiority and seek to engage with expositions addressing real circumstances and situations that do come before the legal world for resolution and redress. the sexual offences act 2003 sought to resolve the troubling question of consent in the domain of sexual offences. yet complaint is still heard about this issue, from both sides of the equation: those who believe that the law is not ‘fair’ in the way it deals with victims and survivors of rape and other sexual impositions and exploitations, and those believing that the law treats alleged offenders unfairly. reading the three volumes here under review – or at least reading the review – may provide some insights that could be useful, surely a possibility to be considered in an area that is so often seen as fraught with contradiction. this is all the more necessary to consider in light of the ways in which lawyers were implicated in the culture giving rise to or at least supporting and arguably condoning behaviour now recognised as illegal. ronan farrow’s catch and kill and she said by jodi kantor and megan twohey were published before the trial began. following the personal memoir, brave, by rose mcgowan,10 they are the first of what can be predicted as an avalanche of books addressing the film and television industry, and the exploitation 8 reuters, ‘harvey weinstein trial: how events unfolded’ the guardian (24 february 2020) <https://www.theguardian.com/world/2020/feb/24/harvey-weinstein-trial-a-timeline of-how-it-happened> accessed 15 april 2020. 9 our foreign staff, ‘harvey weinstein transferred to rikers island jail after ten days in hospital’ the telegraph (6 march 2020) <https://www.telegraph.co.uk/news/2020/03/06/ harvey-weinstein-transferred-rikers-island-jail-10-days-hospital/> accessed 12 december 2019. 10 rose mcgowan, brave: a revealing and empowering memoir (harpercollins 2018). 196 book review of women harbouring the simple wish to fulfil their career ambitions. just as in the world generally when these crimes occur, the stereotypical response of too many is to transfer responsibility for their rape and harassment to the women themselves. the alternative approach is to assert that, because some at least gained fame through weinstein’s films, they have nothing about which to complain. countering this, both catch and kill and she said acknowledge the importance of power imbalance in the industry, exploited by harvey weinstein and reputedly others. this power imbalance begins with the structure of society as a whole, which elevates men above women in business, economic and political institutions, and in male-female relations. the tendency for women to blame themselves, or construe their own actions as foolish and unlikely to be believed, adds to the likelihood that conduct such as that engaged in by weinstein will not be subject to legal action. brave recounts this from the perspective of one directly a part of the industry. in narrating her experience of hollywood and her encounter with harvey weinstein, rose mcgowan speaks to the power factor as intrinsic to the long, long struggle it took in order to have her life and career disrupting story believed. the weinstein episode is, for her, merely one part of what she characterises as the ‘cult’ of hollywood. just as they raise this question, all three books need to be read against the backdrop of why it is that men, in the main, people the upper echelons of the movie world and ‘call the shots’. brave addresses this issue too in the context of the world in general. how and why is it that men rise to the top, whilst women are seen as ‘lucky’ or, more generally, taking advantage of their sex and sexuality, whenever they succeed, whether in show business or any other calling? why are women considered to have slept their way to the top, or (when they ‘fail’ and complain about sexual imposition) considered to be liars whilst men succeed through talent and ability alone (or are assumed to do so, albeit success comes tempered by other considerations such as family background, political connections, status of mentors, and even without talent or ability), and are almost invariably the accepted truth-tellers when charged with sexual crimes and misdemeanours? these questions permeate the revelations recounted by rowan farrow and jodi kantor with megan twohey. they are questions that any critical thought needs to address, for at the heart of catch and kill and she said are the stories of women, mostly told reluctantly, exposing the systematic, repetitious, slimy and sleaze-infused conduct engaged in by harvey weinstein – as they allege, and is corroborated by the payoffs and, now, findings of guilt. equally so, there is the expose by, on the one hand, farrow, and on the other, kantor and twohey, of the way weinstein was enabled in his conduct by those within and outside the film and television industry. apart from the diligent uncovering of the women’s stories, farrow relates how people at the top of the media collude in covering up potentially the denning law journal 197 criminal conduct, in this case, in order to protect weinstein and his filmmaking. so, too, alongside the methodical baring of ‘what happened’ to the women, kantor and twohey reveal how it is that lawyers work – even connive – to cover up and to undermine the women’s experience. just as the encounters of the women are not isolated, abnormal or extraordinary, being part of the everyday lives of millions of women the world over, so too the collusion and connivance of men (and some women) at the top of the media industry and the legal profession are played out with monotonous regularity globally.11 in many ways it is these latter exposures that provide the most profoundly telling elements of these important books. the conduct and the covers-up are all, sadly, par for the course – yet it is the media heads’ and the attorneys’ repeated involvement that confirms the difficulty confronted by the elements in society that seek an end to sexual and sexist harassment, abuse and rape of women, along with the victimisation and bullying that comes after, or accompanies, these human rights wrongs. catch and kill comprises five parts, as well as a prologue and an epilogue. beyond the journalistic skill, diligence and persistence in tracking interviewees and gaining their confidence, ronan farrow’s book is revelatory in its exposure of the tight media control and collusion that kept harvey weinstein’s conduct a wellknown story in show-business circles, at least amongst the men and some women, without gaining traction in the world outside that circle. the most damning aspect from a media critical perspective is the trail leading to the story’s being canned by nbc. in the end, this meant ronan farrow took it to the new yorker where its publication became a major story in itself. at the beginning and as he progressed in his research and gaining interviews, and in putting the story together at nbc, he had strong support from his producer, rich mchugh, clearance from nbc news general counsel, susan weiner, and the go-ahead from richard greenberg, the nbc veteran who had editorial governance of the story. at a crucial juncture, noah oppenheim, executive in charge of the today show, appeared equivocal. the result of this was the story’s being sent by oppenheim ‘upstairs’ to nbcuniversal. there, it was blocked.12 ronan farrow discovered that earlier attempts to write up the exploits of harvey weinstein had been stifled and stopped at various levels of the media, by executives and media advisors sympathetic to weinstein.13 the women were labelled untrustworthy, the narrative was considered 11 see for example ja scutt, the incredible woman – power and sexual politics (artemis publishing 1997) vols 1 and 2. 12 ronan farrow (n 2) 135, 141, 147–8, 153–9, 191–2. 13 readers concerned about this approach to transparency and the media as the important fourth estate may be reminded of the cover-ups acknowledged, now, about jimmy savile and his unremitting trail of abuses conducted inside and outside institutions in the united 198 book review unnewsworthy, weinstein was considered too powerful, miramax and then the weinstein company were extolled as bringing new ideas and daring to filmmaking, journalists were told they should dig deeper: their research was inadequate, that ‘legal’ would not pass their stories, that the risk and the potential cost of a lawsuit outweighed the possible newsworthiness of the report, if it were newsworthy at all. in all likelihood, at least some of those at the top who stifled the stories were offenders themselves14 or, wishing for the opportunity to be so, lived vicariously through the descriptions of harvey weinstein’s exploits recounted to them by their reporting teams. no doubt having heard this, and seeing no negative consequences, only support and cover-up, some gained the courage or arrogance to do it themselves. the approach of the upper echelons of the media was repeated by lawyers engaged by miramax and the weinstein company, and those whom women contacted with complaints about harvey weinstein. this is well recorded in she said. consisting of nine chapters and a preface, the book relates in chapter 3 ‘how to silence a victim’ precisely how this is done, and was done, to conceal or cover-up the serial predatory conduct carried out under the guise of setting up professional meetings with actresses or subordinates. yes, victims can be and are silenced by their own fear and the manipulative conduct of a perpetrator which generates shame, embarrassment, self-doubt and even terror. but this is not the only way to manufacture silencing. research by megan twohey into federal equal opportunity commission (eeoc) and equivalent state bodies in new york and los angeles, where the weinstein companies were located, found no records of claims lodged by weinstein’s targets. yet at california’s department of fair employment and housing, grace ashford, a new york times junior colleague working on the story, unearthed a report showing a number of workplace complaints filed in relation to miramax. as a consequence of its origin, the report kingdom: ja scutt, ‘charity, celebrity and the corporate condonation of child sexual abuse’ (online opinion, 19 november 2012) <https://www.onlineopinion.com.au/view. asp?article=14367> accessed 23 may 2020. 14 roger ailes is one such media consultant for presidents richard nixon, ronald reagan and george hw bush, and for rudy giuliani’s first new york mayoral campaign, in 2016, he was an adviser to the donald trump presidential campaign, reportedly assisting with debate preparation. chairman and ceo of fox news and fox television stations, in july that same year he resigned as a consequence of allegations of having engaged in multiple acts of sexual harassment against women in the fox organisation: melissa albert, ‘roger ailes’, encyclopaedia britannica (2010) <https://www.britannica.com/biography/rogerailes> accessed 12 april 2020. the 2019 film bombshell is a factional recounting of roger ailes at fox and the sexual harassment allegations: bombshell (imdb) <https:// www.imdb.com/title/tt6394270/> accessed 12 april 2020. the denning law journal 199 was written in bureaucratise, with the nature of each allegation indicated through numerical codes, plus dates and addresses and its resolution. yet nothing in the report disclosed the names of the parties, nor how they dealt with or were affected by the complaint and its outcome.15 people appeared to have disappeared, and so it proved. when megan twohey reached a government official who might have some answers, she was told ‘the complaint against miramax and any other related records had been destroyed under an agency policy that prevented the retention of documents after three years’,16 whilst another policy decreed that the name of the party filing the allegation could not be revealed. the law and its potential for addressing and resolving sexual harassment claims were central to the investigation being carried out by megan twohey and jodi kantor. their aim was not only to illuminate the in-depth sociological and historical investigation on which they had embarked, but to pinpoint flaws in, or the potential of, the legal process. megan twohey therefore followed up with women lawyers who held national and even international reputations, through regular television appearances as champions for women litigants. one with whom she spoke was gloria allred. she was circumspect in raising the question as earlier she had been approached by gloria allred’s attorney daughter lisa bloom, an approach surely triggered by an awareness of the story twohey was following with her colleague kantor. declining to refer to weinstein, twohey asked for advice on the process she should follow to obtain an historical sexual harassment record from a californian state government agency. only long after the exchange, with allred effectively declining to help, did toohey discover that allred’s firm held records relating to weinstein. allred had negotiated confidential settlements for clients who had made claims of sexual harassment and assault against weinstein.17 this highlights a practice that raises concern not only in the united states but elsewhere, including the united kingdom and australia.18 15 jodi kantor and megan twohey (n 2) 49. 16 ibid 50. 17 ibid 76. 18 the law society, ‘ndas and confidentiality agreements’, problems at work, <https:// www.lawsociety.org.uk /for-the-public/common-legal-issues/problems-at-work /nondisclosure-agreements/>accessed 23 may 2020); ja scutt, ‘the privatisation of justice – power differentials, inequality and the palliative of conciliation and mediation’ in jane mugford (ed), alternative dispute resolution (australia institute of criminology 1986); also in ja scutt, the incredible woman – power and sexual politics (n 11) vol 1, 159–184. 200 book review confidentiality agreements are projected as favourable to victims, enabling them to get on with their lives, retaining privacy and escaping shunning by employers or potential employers. in the united kingdom, the media frequently pursues action to have court sanctioned confidentiality clauses lifted or set aside. this they do in the interests of the public right to know and the transparency of the justice process as well, of course, as a matter of ‘news’. although this may seem to undercut the rights of victims, as brave clearly reveals, the interests of victims are not well served by non-disclosure orders (ndas). far from women being shielded or protected by privacy, the women who raise complaints are subjected to the precise prospect they were persuaded they would avoid. the industry learns who is ‘difficult’, who ‘creates trouble’, who simply doesn’t take the sexual importuning as a part of the job. future prospects narrow. auditions fall through. job offers are withdrawn. hence, although some of those who have taken the confidentiality route stay to persist in their efforts to make a career in film, television or theatre, some inevitably return to the obscurity from whence they came. in researching the weinstein story, megan twohey and jodi kantor heard the reality lying behind the fairy tale that non-disclosure agreements (ndas) are negotiated for claimants’ advantage and in their favour. allred acknowledged this. after outlining the supposed benefits for her clients of such agreements, she confirmed that confidentiality clauses operate as a cover up for the perpetrators of sexual misconduct. the powerful figure ‘wants peace, wants to end it, and wants to move on’, says allred, the contention being that this is merely a quid pro quo, an ad idem in that both seek to move beyond the claim and the event leading to it.19 as it proves, however, the perpetrator, powerful man, does not want to move on ‘in the same way’ as the victim wishes. not for him moving on carrying shame and fear and career disruption with him. far from it. he wants to move on in the same way as he has moved on in the past, never curbing his conduct nor ending his exploitative and power grabbing ways of putting women down. non-disclosure agreements allow him to do so. . those devising them, on both sides of the negotiating table, know this. lawyers fashioning these contractual arrangements are in no doubt. the truth is, just as this practice does not help future victims to escape, the perpetrator, that powerful man, remains free to exploit and damage, exert power and subjugate and, where the women resist, destroy careers. like rose mcgowan, mira sorvino and ashley judd had their careers truncated through the collusion of media and lawyers in protecting harvey weinstein’s. they suffered the consequences of confidentiality agreements written between other actresses or workers with miramax and the weinstein company. years later, when the 19 jodi kantor and megan twohey (n 2) 78. the denning law journal 201 #metoo movement gained traction not only in hollywood, but internationally, directors came forward to acknowledge their part in protecting harvey weinstein along with their own film industry fortunes. so ronan farrow quotes the aotearoa/ new zealand director peter jackson as saying that when he was ‘considering mira sorvino and ashley judd in the lord of the rings, weinstein had interceded’.20 miramax ‘told us they were a nightmare to work with and we should avoid them at all costs,’ said jackson, adding that at the time there was ‘no reason to question what these guys were telling us’.21 in hindsight, acknowledges jackson, ‘this was very likely the miramax smear campaign in full swing’.22 catch and kill refers directly in is title to the media collusion underpinning the weinstein story: ‘catch and kill’ is the term coined to describe the taking up of a story, then ‘killing’ or ‘spiking’ it, so that it never appears. the expose is effectively stricken from the record. where the story takes the attorney track rather than trailing into the pathway of the journalist, the confidentially agreed settlement acts to put a firm cap on any exposure of harm, nullifying legal consequences. thus are the women silenced. thus are the misdeeds of harvey weinstein and his cohort disappeared. this meshes with rose mcgowan’s narration of the weinstein world. brave addresses the phenomenon as part of the ‘cult’ of hollywood or that is hollywood. growing up in a cult in the italian countryside, the children of god, rose mcgowan is well-versed in the practice of sect capture, control and collusion. women are susceptible as devotees, and women are susceptible as being drawn in, to become a part of the supporting structure that maintains the power of the ruler of the cult. ronan farrow describes how this cult phenomenon worked for mira sorvino. daughter of former actor (now deceased) paul sorvino, mira sorvino, is a harvard graduate cum laude. a united nations ambassador to combat human trafficking, she also ‘advocated for [other] charitable causes related to the abuse of women’.23 at the 1995 toronto international film festival, where she was promoting woody allen’s film mighty aphrodite, she ‘found herself in a hotel room with weinstein’.24 unfortunately, she did not know – the truth so frequently concealed by the media’s ‘catch and kill’ approach to stories, and the attorneys’ confidentiality agreements – that this was harvey weinstein’s modus operandi. mira sorvino described that a shoulder massage (making her ‘very uncomfortable’) led to a ‘sort of chasing around’ and ‘trying to kiss’ leading to her having to 20 ronan farrow (n 2) 239. 21 ibid 239–40. 22 ibid 240. 23 ibid. 24 ibid 238. 202 book review ‘scramble away’ whilst ‘improvising ways to ward him off’.25 having protested that it was ‘against her religion to date married men’, sorvino left the room no doubt believing that her escape meant that was the end of the matter.26 but persistence appears to have been a weinstein trait, using career-orientated ploys to trap his targets. hence, several weeks later when she was in new york city, sorvino received an after-midnight phone call from weinstein, asserting that he wished to meet up with her to discuss new marketing ideas for mighty aphrodite. an offer to meet with him at an all-night diner met with the rejoinder that he was ‘coming over to her apartment’, upon which he ‘hung up’. sorvino called a friend, asking him to come to her apartment to ‘pose as her boyfriend’. weinstein arrived first, bypassing the doorman. when, clutching her ‘twenty-pound chihuahua mix’ to her chest, she told him ‘her boyfriend was on his way’, weinstein departed, ‘seeming dejected’.27 the response when sorvino later spoke to a miramax female employee, relating the harassment, is described in catch and kill: wearing ‘a look on her face, like i was suddenly radioactive’, the woman’s reaction ‘was shock and horror that i had mentioned it’.28 hotel rooms appear to be de rigueur for predatory sexual harassers and rapists, at least in the film industry. rose mcgowan describes an episode early in her film career, when she worked as an extra and was targeted by ‘a guy on the set who was probably in his late forties’ (she was a young teenager).29 reminding him of her father in his nicer moments, he was friendly and jokey in his interaction with her. an invitation to ‘walk around downtown with him and some of the other extras’ was interpreted by her as just that – a group expedition. it proved to be a predatory meeting arranged with her alone, leaving mcgowan feeling ‘dirty and ashamed’.30 now, as an adult, she recognises the man as ‘just another industry paedophile’,31 but then she did not realise it. she classed the episode as an unwelcome sexual experience rather than as the assault it was. lawyers who, in reading this together with other incidences recounted in brave along with catch and kill and she said, turn away as if this is irrelevant to their professional work show all too clearly how relevant it is, and how their ignorance and condescension are a part of the legal system’s problems. 25 ibid. 26 ibid. 27 ibid 241. 28 ibid. 29 rose mcgowan (n 10). 30 ibid 74. 31 ibid 75. the denning law journal 203 similarly as to the rose mcgowan encounter with harvey weinstein, whom she determinedly, throughout the book, refers to never by name but as the ‘studio head’. in brave mcgowan writes that this took place in 1997, when she was promoting at the sundance film festival the four movies in which she appeared that year, one short and three films. her (female) manager animatedly advised that weinstein was sitting behind her, rose, in the cinema. later, mcgowan learned from her that the studio head had summoned her (rose) to a business meeting the following day. this was set for 10.00 am at the restaurant in ‘the fanciest hotel in park city, the stein eriksen’.32 the restaurant was, of course, not to be. what was to be was the hotel room … comprising the entire floor of the hotel. later reflection had her realise that the ‘grim faced restaurant host’ who directed her away from the dining room to weinstein’s hotel room, and the two assistants who exited the suite as she entered, had foreknowledge of what awaited her. in this backward reflection, she surmised that the duo saw her somehow as grubby and soiled even before she put one foot through the door.33 her genuine thought was that weinstein had set up a business meeting because he cared about what she might say about the films, their production and their marketing. the view of others, she now realises, was that she was there for a purpose other than work. it was she who was wrong.34 it was only later that rose mcgowan discovered that warnings had been given to other actresses ‘about what could happen when this studio head summoned you to a meeting’.35 even later, she found out more, namely that although unknown to her as a new person in the industry, harvey weinstein ‘had a long track record of preying on young women’.36 even as long ago as 1997, his way of ‘doing business’ was ‘an open secret in the industry’.37 ‘everybody’ in the business side of hollywood knew that if a young, female actress was called to a meeting, ‘it was probably going to go differently’ from what she expected.38 what comes through strongly in mcgowan’s book is the failure of those with the power and responsibility to halt this exploitation and abuse, mainly of actresses, sometimes of young actors, to do so. she could focus on the lawyers, as do jodie kantor and megan twohey, or the media as does rowan farrow. her book’s contribution lies, however, directly in the responsibility (or lack of responsibility) on the part of the film industry itself. what, she remarks, is the role of the union, 32 ibid 115–6. 33 ibid 115–9. 34 ibid 199. 35 ibid 119. 36 ibid. 37 ibid. 38 ibid. 204 book review the screen actors guild? no support of women in the industry there, against the predatory conduct the industry knows is endemic. why do producers not step in, when they know that directors are notorious for taking advantage of their role to engage in exploitation and abuse, and, not infrequently, bullying?39 when a producer is on a film set with one of those notorious directors and young, vulnerable actresses or any actresses for that matter, each of whom may be vulnerable, why not step in? why not at least warn or, better still, warn the director off? why does the industry continue to employ and even worship directors and producers and others on-set who use their positions in an industry swathed in ‘glamour’ to indulge their selfish predilections, or to fail to call a halt to unprofessional and indeed criminal conduct? brave takes the matter beyond harvey weinstein and into the industry as a whole, alongside the issue of power and male-female relations, with the impact of film and television and their depiction of women in the wider world. surely the legal profession, as a part of both the inner and the wider world, should pay attention rather than shrug off these books and their message as lacking traction. why, asks rose mcgowan, should her job as an actress entail ‘being a piece of meat to be consumed and savaged and judged …’40 she describes walking the red carpet at film premiers in this way, doing what she is asked by the photographers, standing and twirling, looking back over her shoulder so that both her face and the rear of her body can feature in the image to be sold to the highest bidder. hollywood, she writes, ‘thinks this is normal – they started it – but it’s not normal’.41 this stereotyped view of what is ‘beauty’ is projected onto the world stage, with every female participant a part of the projection.42 underlying this is the question why women who are political activists, directors and producers in their own right are categorised simply as ‘actresses’ when the crimes of sexual abuse and rape are revealed.43 mcgowan’s demand is that the industry as a whole should change, to represent women as real human beings, in real roles, rather than as the artificial appendages common in movies where they are secondary characters to the main event, the male character. 39 ibid 75. 40 ibid 131. 41 ibid. 42 ibid. 43 see for example miriam haley (n 7); ashley judd is a producer and political activist: ‘ashley judd’, (imdb) <https://www.imdb.com/name/nm0000171/> accessed 12 april 2020; rose mcgowan is a director: ‘rose mcgowan’ (imdb) <https://www.imdb.com/ name/nm0000535/> accessed 12 april 2020. the denning law journal 205 beyond the immediate issue of #metoo in hollywood, catch and kill, she said, and brave extend their reach as commentary and critique of power and responsibility. beyond the expose by ronan farrow of the surveillance carried out against the authors and rose mcgowan – possibly others – by a company known as ‘black cube’ on behalf of harvey weinstein and his company,44 each of the books and their authors add an additional dimension. this makes an excellent coda for any review and reader who considers the responsibility she or he holds as a member of the community and within the legal profession. as to catch and kill, ronan farrow’s personal reflection of his response to an episode in his own life indicates that even good men can lack insight. even men striving to be decent men can be so much a part of the culture that they condone or at least consider that women should ‘go along to get along’ or simply stay still, be quiet and get on with life. ronan farrow confesses to this in relation to the revelation by his sister, dylan farrow, that their father woody allen had sexually abused her as a child,45 a contention allen has denied.46 when the harvey weinstein story is in doubt, ‘people’ at the top of nbc going cold on it, an exchange occurs between brother and sister, dylan and ronan, highlighting that indeed the personal is political. she asks about the story, fearing that farrow may drop it because of the pushback coming from nbc’s higher echelons. when he responds that there are other priorities, she replies that she knows ‘what it’s like to have people stop fighting for you’.47 later, when pressure returns for him to drop the story, he reflects upon his and her family’s reaction when dylan farrow advised of her intention to revive her allegation of sexual assault against woody allen. the notion of ‘just moving on’ played a significant part in the exchanges, at home in connecticut where the discussion took place.48 finally, when the story is published by the new yorker, he is forced to face up to his own connivance with the powerful, in his evasive response to questions about the (lack of) ethics of his former employer nbc in ‘killing’ the story.49 44 ronan farrow (n 2) 95–6. 45 ‘dylan o’sullivan farrow’ (imdb) <https://www.imdb.com/name/nm0642717/> accessed 12 april 2020; bbc, ‘dylan farrow: outrage “after years of being ignored” ’ (bbc, 17 january 2018) <https://www.bbc.co.uk/news/entertainment-arts-42715715> accessed 12 april 2020. 46 bbc, ‘woody allen denies abusing his daughter dylan farrow’ (bbc, 8 february 2014) <https://www.bbc.co.uk/news/world-us-canada-26096048> accessed 12 april 2020. 47 ronan farrow (n 2) 182. 48 ibid 190. 49 ibid 401–2. 206 book review brave has rose mcgowan reciting precisely why it is that she – along with dylan farrow and countless others – cannot simply ‘just move on’.50 referring to an incident during filming, where one of the male actors sexually assaulted her, she responds to the director who denies all knowledge of the incident, then reinvents it as ‘one actor spilling water on another’.51 when in so doing he states that his job as director is ‘to make sure all my actors – male and female – feel as comfortable and protected as possible at all times’ she responds that she did not ‘feel comfortable’.52 the director was, she says, speaking out of turn, engaging in misogyny, victim blaming and gaslighting in the dismissal of her experience. the body, she says, has memory. the memory of the mind changes every time an episode is returned to, reflected upon. but, she adds, the body’s memory is ‘more accurate’ than that of the mind.53 rightly, then, she said ends with the story of brett kavanagh at college, which surely will engage readers of the denning, touching as it does upon the allegations made by dr christine blasey ford during the senate hearings on the nomination of kavanagh to the united states supreme court. in june 2018, dr blasey ford e-mailed a friend ‘about her unease’ that the ‘favorite for scotus’ was the man who ‘assaulted [her] at high school’.54 his being her age meant that if appointed he would be on the court ‘for the rest of [her] life’.55 jodi kantor and megan twohey interview blasey ford, follow the story, watch the senate hearings on television, see her give her evidence. watch brett kavanagh in his responses.56 then recite the outcome, namely that kavanagh is appointed. in all this, albeit aeons apart in their upbringing and career choice, just like rose mcgowan, dr christine blasey ford would say her body hasn’t forgotten. 50 rose mcgowan (n 10). 51 ibid 102. 52 ibid. 53 ibid. 54 jodi kantor and megan twohey (n 2) 193. 55 ibid. 56 for his denial, see lawrence hurley, andrew chung and amanda becker, ‘with anger and tears, kavanaugh denies sex assault allegation’ (reuters, 27 september 2018) <https:// www.reuters.com/article/us-usa-court-kavanaugh-iduskcn1m70cy> accessed 12 april 2020; christina wilkie, ‘kavanaugh denies latest accusation: “this is ridiculous and from the twilight zone” ’ (cnbc, 26 september 2018) <https://www.cnbc.com/2018/09/26/ kavanaugh-denies-allegation-this-is-ridiculous.html> accessed 12 april 2020; eli watkins, ‘kavanagh denies two additional accusations to senate judiciary committee’ (cnn politics, 28 september 2018) <https://edition.cnn.com/2018/09/26/politics/brettkavanaugh-allegations/index.html> accessed 12 april 2020. the denning law journal 207 these three books should be required reading in all law schools, at least. each has its own impact, its own perspective and approach. together, they provide a profound antidote to the traditional way women have been seen and used in the film industry, and the traditional way in which the law has regarded women and shaped its response to rape, sexual exploitation and abuse. one might hope that readers of the denning would understand the imperative need for extending the scope of their libraries. jas © may 2020 freedom of the press: freedom from the press* sir david calcutt, qc as the parliamentary summer recess once again approaches, it is perhaps appropriate that we should be considering the balance which has yet to be effectively struck between the freedom of the press, and freedom from the press that is, the freedom of the press to investigate and to inform the public about matters oflegitimate public interest; and the freedom ofthe individual to be protected from public exposure, by the press, of private matters, but in which the public has no legitimate interest. after all, it is now over five years since the government called for and called for as a matter of urgency a report on the measures needed (whether legislative or otherwise) to give further protection to individual privacy from the activiti~s of the press. it is now over four years since the government accepted, in principle, the recommendations of the committee on privacy and related matters that a package of changes (including some legislative changes) was needed, and accepted the recommendation that this must positively be "the last chance" for the press to get its act together, failing which statutory support would be inevitable. it is now over two years since the government asked me to review and to review urgently the new arrangements which the press had put in place for self-regulation, and to say whether, in my view, those arrangements should now be modified or put on a statutory basis. it is now over 18 months since the government expressly accepted, in terms, my conclusion that the press complaints commission was not an effective regulator of the press. it is now over 15 months since the national heritage select committee published its report recommending statutory support for the voluntary regulation of the press. it is now over 12 months since the secretary of state for national heritage assured parliament that the government envisaged a white paper setting out the government's final views on press self-regulation, and said that the government would do its best to ensure that its response to the select committee's report would be published before * the child & co. lecture 1994. the denning law journal the summer recess by which, i had assumed, he meant the recess of 1993. but, to date, no white paper, still less any government legislative initiative, has yet been forthcoming. my purpose in addressing you today is not simply to repeat what the privacy committee said in its report, nor what i said in my review (though i will summarise it); but rather to take stock of all initiatives, to see where we are or rather, where we have so far failed to be and to see where things may go or may fail to go from here. the background is familiar enough. with increased concentrations of media ownership, with decreasing overall newspaper circulation figures, and with coverprice wars becoming increasingly intense, the temptation to go for the simply prurient story, in pursuit of increased sales, often regardless of who may get hurt, becomes increasingly difficult to resist. go back five years, if you will, to the 1988-89 session of parliament. in that session there had been widespread support for two members' bills, one relating to the protection of privacy, the other to a right of reply. one had been introduced by mr john browne, the other by mr tony worthington. each bill had been given a second reading. each had completed its committee stage in the house of commons. neither of these proposals was new. similar bills had been introduced in the previous parliamentary session by mr william cash, and by miss ann clwyd. and these bills had themselves each been based on earlier bills. public concern, in 1989, was temporarily assuaged by the familiar device of setting up a committee to recommend what should be done. the committee's terms of reference are now worth repeating. they were: "in the light of the recent public concern about intrusion into the private lives of individuals by certain sections of the press, to consider what measures (whether legislative or otherwise) are needed to give further protection to individual privacy from the activities of the press, and to improve recourse against the press for the individual citizen . . ." considering, for one moment, those terms of reference, the focus of attention was to be on the press; it did not extend to the whole of the media. this limitation had its advantages; it also had its obvious disadvantages. secondly, the inquiry was to focus particularly on those measures needed to provide adequate protection to an individual's privacy: it was not principally 'concerned with such other protection as might be needed. thirdly, the government itself expressly contemplated that legislation might be needed. it was made plain from the outset that the committee's report was required urgently. parliament had been told that it was intended that the committee should report within one year; and ministers on several occasions had spoken publicly of the need for a speedy report. 2 freedom of the press: freedom from the press the committee received a great deal of evidence. a number of witnesses, particularly those from the press, provided the committee with detailed analyses of press practice, and of the wide constraints already placed on them. by contrast, a number of people whose privacy had been the subject of intrusion by the press, often in distressing circumstances, sent the committee detailed dossiers of their experiences. many witnesses argued strongly for press freedom to investigate wrong doing. by contrast, many members of the public wrote to us advocating restrictions on the press. these ranged from the outright prohibition of particular activities, to various forms of recompense, and to a variety of punishments for editors and journalists. the report of the committee was completed almost within the year, and published in june 1990. it was unanimous. the report recognised the balance which needed to be· struck between freedom of expression and an individual's right to privacy. the committee took the view that freedom of expression was fundamental in a democratic society, but concluded that this could not be at the expense of other important rights, including an individual's right to privacy. the committee made a number of recommendations. they were intended to form part of one overall balanced package. the principal parts of that package can be summarised in this way. first, any new means of redress would need to be carefully targeted, and should not range more widely than was needed to meet existing gaps in protection. secondly, any new wide-ranging statutory civil rights, aimed at the protection of infringement of privacy, although practicable, would not then as part of the balanced package have been appropriate. thirdly, the most blatant forms of physical intrusion pratices involving' 'doorstepping", bugging, and the use oflong-range cameras should, subject to appropriate defences, be outlawed. fourthly, the existing statutory restrictions on reporting should be strengthened, so as to provide added protection for children and the victims of sexual offences. fiftwy, the press's own arrangements for voluntary self-regulation should be revised and strengthened by setting up a new press complaints commission (as detailed in the report), to replace the old press council. lastly, if the press failed to demonstrate that non-statutory self-regulation could be made to work effectively, then the new regulatory arrangements would have to be given statutory support; and the form which that support would need to take was spelt out plainly and in considerable detail. in the light of what has happened, it is important to see what was said, in june 1990, when the report (cm. 1102) was published, both by the government and by the opposition. the then home secretary (mr david waddington, as he then was) said that the government warmly welcomed the general approach which the committee had taken on the delicate issue of balancing privacy for the individual against the maintenance of freedom of expression. he said that the government was attracted by those 3 the denning law journal recommendations which offered the possibility of an immediate remedy against the worst excesses of the press. he said that this was positively "the last chance" for the industry to establish an effective non-statutory system of regulation. if a non-statutory commission were established, the government, he said, would review its performance after 18 months of operation, to determine whether a statutory underpinning was required. if no steps were taken to set up such a commission, the government, he said, albeit with some regret, would proceed to establish a statutory framework, taking account of the committee's recommendations. mr waddington supported this by an article in the times the following day. he said that he considered the committee's recommendations offered a genuine opportunity to restore the responsible exercise of press freedom to all our newspapers. but if, after a trial period, they did not, the government he said, would not flinch from introducing statutory regulation of the press. this was, then, emphatically to be "the last chance" for the press to put its own house in order. if that failed, the government had made it perfectly plain that statutory support would be needed. no suggestion was then made that such statutory support would give rise to any constitutional difficulties. mr roy hattersley, speaking for the opposition, gave an unqualified welcome to the report's positive proposals. he drew attention to the home secretary's own express belief that newspapers would respond'to this one "last chance"; but he said that he (mr hattersley) had his doubts; and that was why the second recommendation the introduction of statutory regulation by an official body was absolutely essential if the "year of grace" was ignored and if the press did not mend its ways. so, the opposition, too, took the view that this was to be the "last chance"; and that if it failed, statutory regulation would follow; and, again, no constitutional anxieties were raised. but, following publication of the committee's report, the government itself has so far failed to initiate any of the recommended measures which required legislation. the press, did, however, abolish the old press council, and set up, in its place, a new press complaints commission. but the new commission, as set up by the press, differed significantly from the commission which the privacy committee had had in mind, the details of which had been fully spelt out in the report. the principal differences were these. first, the members of the commission were to be appointed, not by a body which was itself independent of the press (as the report had recommended), but, in effect, by a body which was the creature of the newspaper industry. secondly, the report had recommended that the commission should not act as an overtly campaigning body for press freedom; but there were signs that the commission was once again asserting, as the old press council had done, a positive role for the commission in defending press freedom. thirdly, the commission operated a code of practice produced and monitored, not by the commission (as the report had recommended), but by the industry. 4 freedom of the press: freedom from the press fourthly, the industry's code of practice reduced, in several significant respects, the protection which the privacy committee had proposed for individuals: it failed to hold the balance fairly between the industry and the individual. fifthly, the industry's code of practice widened the concept of "public interest' , , thereby significantly reducing the level of protection which ought to have been provided for individuals. . sixthly, the commission was generally unwilling to operate a "hot-line" to prevent anticipated breaches of the code, as the old press council had proposed, and as the committee had recommended. finally, the commission was then unwijiing itself to initiate inquiries, as the old press council had done and as the committee had also recommended. the new commission began work on 1january 1991. this meant that the i8-month period the time when the government had promised a review of the commission's performance to determine whether statutory underpinning was required expired in july 1992. it so happened that the end of this 18-month period coincided with the serialisation in the press of andrew morton's book, diana: her own true story and this itself gave rise to a good deal of further public concern about the behaviour of the press. the government invited me to undertake the review of the performance of the press complaints commission. my terms of reference are again worth repeating. they were: "to assess the effectiveness of non-statutory self-regulation by the press since the establishment of the press complaints commission and to give my vie~s on whether the present arrangements for self-regulation should now be modified or put on a statutory basis; and to consider whether any further measures might be needed with intrusions into personal privacy by the press." the thrust of the review was thus different from that of the earlier report. the thrust of the report had been to consider what measures were necessary to give further protection to individual privacy. the thrust of the review was to assess the effectiveness of the new self-regulatory arrangements. the terms of reference of the review plainly contemplated the possibility that the voluntary arrangements might need to be put on a statutory basis. there was no suggestion that, if a statutory basis were needed, any constitutional difficulties would be likely to arise. it seemed to me that, in conducting the review, i was entitled to take, as my starting point, the report of the privacy committee (including the recommended statutory support which would be needed if the proposed new self-regulatory arrangements proved to be ineffective). after all, that report, as i have already pointed out, had been unanimous; it had been accepted, in principle, both by the government and by the opposition; and the government was well aware of my views about the fall5 the denning law journal back statutory support which would be needed, and yet had chosen to come back to me to undertake the review. i do not trouble you with the detail of the review. the main conclusions which i reached, on the effectiveness of press self-regulation, were these. first, the new press complaints commission was not an effective regulator of the press. secondly, it had not been set up in a way, and was not operating a code of practice, which enabled it to command not only press but also public confidence. thirdly, it did not, in my view, hold the balance fairly between the press and the individual. fourthly, it was not, in my view, the truly independent body which it should have been. finally, as constituted, it was, in essence, a body set up by the industry, and operating a code of practice devised by the industry and which was over-favourable to the industry. it was with regret that i had to reach these conclusions, and, having considered (and rejected) the possibility of modification, i recommended that the government should put press regulation on the statutory basis detailed in the report of the privacy committee. i also recommended that the criminal offences relating to physical intrusion and covert surveillance, which had been proposed by the privacy committee, should be enacted. i also recommended that the government should give further consideration to the introduction of a new tort of infringement of privacy. on 14 january 1993 the government published my review. the secretary of state for national heritage (mr peter brooke) said in parliament that the government accepted the case i had made for new criminal offences to deal with specified types of physical intrusion and covert surveillance; but the case i made was essentially no different in this respect from the recommendations which the committee had made some 18 months earlier, but which the government had thus far disregarded. the government also accepted my recommendations that further consideration should be given to introduction of a new tort of infringement of privacy. more significantly, the government also agreed with me that the press complaints commission, as then constituted, was not an effective regulator of the press, that it was not truly independent, and that its procedures were deficient. my recommendation that the government should not put press regulation on a statutory basis raised, so mr brooke said, separate and more difficult issues which needed to be carefully weighed. the government, he said, was conscious that action to make such a body statutory would be a step of some constitutional significance, departing from the traditional approach to press regulation in the united kingdom; and that in the light of those considerations, the government, he said, would be extremely reluctant to pursue that route. that reasoning, i have to say, and in the light of what had gone before, and which i have just outlined, struck me as curious. why should such statutory support be so significant a constitutional step that the 6 freedom of the press: freedom from the press government should be reluctant to introduce it? neither mr waddington nor mr hattersley appeared to have taken that view in 1990. the answer must surely depend on the likely effect of the proposed statutory support. if, of course, the likely effect would be to result in censorship and gagging of the press, and to prevent responsible investigative journalism so as to shield the wicked from exposure, that would indeed be a step of some constitutional significance. but if the change simply makes effective, by providing adequate sanctions, that which is presently ineffective, where is the "significant constitutional step"? and what is its vice? if the concept of press regulation is accepted by the press, as it surely must be (the press having set up the press complaints commission), then it must surely follow that it is effective regulation that is accepted. or is the press only prepared to accept press regulations so long as that regulation is ineffective? that would be a cynical view indeed. but, as the editor of one of our broadsheets once put it: "the people who own and run our popular press are driven by commercial imperatives that brook no interference." the statutory support which the privacy committee proposed in the event of the failure of the press complaints commission (and which i recommended in my review) was designed to make, and would have the likely effect of making, a positive contribution to the development of the highest standards of journalism. it would have enabled the press to operate freely and responsibly. it would have given it the backing which was needed, in a fiercely competitive market, to resist the wildest excesses. the committee's recommendations were designed to ensure, and would have the likely effect of ensuring, that privacy, which all agreed should be respected, was protected from unjustifiable intrusion, and protected by a body in which the public as well as the press had confidence. so much, then, for a summary of the position of the report of the committee and of my review. my review was, in fact, only one of several initiatives which were then being undertaken in respect of the press. i should now say something of the other initiatives, so that the two government-sponsored inquiries can be seen in a wider context. mr clive soley introduced a bill entitled freedom and responsibility of the press. that bill proposed the establishment of a body, to be known as the independent press authority, which would seek the presentation of news, by papers and periodicals, with due accuracy. the authority's proposed powers would have included the power to determine questions of factual inaccuracy, and the power to order an editor or publisher to publish a correction in the manner specified. mr soley's bill was given a second reading by a large majority. it had completed its committee stage, but it was nevertheless' 'talked out" at its report stage in march 1993, and so effectively became dead. although mr soley's concern and proposals were different from mine, his proposals like mine envisaged statutory support in the field of press regulation. he proposed a legally enforceable right to correction, and a statutory complaints authority to enforce that right. 7 the denning law journal there was another intiative which was being pursued at the same time. in october 1992 the national heritage select committee had announced that it would conduct an inquiry into privacy and media intrusion. its primary concern was to be with the privacy of private citizens, rather than public figures. that committee took evidence during the winter of 1992-93. its report was published in march 1993. the select committee expressly reached the significant conclusion (which i had also reached) that the press complaints commission, as then constituted, was not an effective regulator of the press. the committee recommended that a statutory press complaints tribunal should not be established (as i had recommended), but rather that there should be appointed an ombudsman with statutory powers to oversee the regulation of the media. the committee also recommended that certain types of intrusion should be made "civil offences" and other types criminal offences. thus the select committee, though differing from me about the means,' was also of the view that some form of statutory support was needed if press regulation were to be effective. it really goes a good deal further than that. although the select committee disagreed with my proposals and did so with some theatrical display, the committee's proposals do not differ very much, in their effect, from mine. a voluntary press commission, which has the support of a statutory ombudsman vested with statutory powers and sanctions, is a very different creature from a voluntary commission which has no such statutory support. and a commission, so supported, is not essentially different, in its effect, from a statutory complaints tribunal. the select committee's proposals, if anything, went further than mine. the conduct caught by their proposed criminal offences would have been wider; and the committee recommended the introduction of "civil offences". on 10 june 1993 the report of the select committee was debated in the house of commons. the secetary of state for national heritage said that governments should normally seek to respond to select committee reports within 2 months, and that he regretted that it had not been possible to do so on this occasion. he said that the political range and importance of the committee's recommendations made a response within the normal time-table impossible. but he assured the house that the government would do its best to ensure that its response was published before the summer recess. but, as i have already indicated, the 1993 summer recess came, and went, without any response having been made. there has been a further initiative which i should also mention. at the end of july 1993, the lord chancellor's department in response to my recommendations, published a consultation paper which sought views on a possible new civil remedy for infringement of privacy. perhaps we may look, for one moment, at what had been going on in the courts and elsewhere. in kaye v. robertson and another ([ 1991] f.s.r.62; the times, 21 march 1990) the case of the well-known actor who was photographed and interviewed in his hospital bed the court of appeal, though granting relief on the ground of malicious falsehood, denied any right at common law for the protection of individual privacy. 8 freedom of the press: freedom from the press leggatt, l.j., said this: "we do not need a first amendment to preserve the freedom of the press, but the abuse of that freedom can be ensured only by the enforcement of a right to privacy. this right has so long been disregarded here that it can be recognised now only by the legislature. especially since there is available in the united states a wealth of experience of the enforcement of this right both at common law and also under statute, it is to be hoped that the making good of this single shortcoming in our law will not be long delayed." in the later case concerning the photographs of the duchess of york, with mr john bryan, in august 1992, latham j. had refused an injunction to prevent publication of the photographs, on the ground that english law did not (as was well-known) protect personal privacy. lord lester of herne hill (house of lords, 24 may 1994) has said that the courts are still capable of developing common law remedies for wrongful infringement of privacy, and that they should be allowed to do so. but, as against that, it has been pointed out in the consultation paper that, even if this were possible, development by common law is uncertain both as to timing and as to content; and that it should be for parliament to legislate on privacy, and not for the courts to create a new right. in launching the consultation paper, the lord chancellor said this: "the time has come to ensure that the law protects the privacy of everyone. this is a matter which has been the subject of cross-party study for many years, and i think it right to offer concrete proposals for reform. the way ahead now is to provide a new remedy for individuals, with appropriate defences." the lord chancellor's consultation paper suggested, in particular, five things. first, that the right of privacy should now be recognised in law; secondly, that the existing law offered only limited protection for privacy; thirdly, that there should be a new civil remedy, allowing an individual to take a case to court if the infringement caused substantial distress; fourthly, that privacy should cover a person's health, personal communications and family and personal relationships; and finally, that the defences of consent, lawful authority, absolute or qualified privilege and public interest defence should, at the least, be available. but the consultation paper makes it plain that legal aid would not be made available; although "conditional fee arrangements" have been canvassed as a possible alternative, this must be a significant shortcoming. but, for my present purposes, it is again worth noting that the proposals made in the consultation paper again envisaged a form of statutory support for at least part of the ground covered by press regulation. in the result, those outside the press who have recently had to consider this difficult problem in any depth have all reached the conclusion that self-regulation, without more is not enough, and that some form of statutory support is needed. 9 the denning law journal meanwhile, the press complaints commission has, since january 1993, itself pursued a number of initiatives. i should mention those which strike me as being the most significant. on 24 february 1993, it was reported in the guardian that the commission expected to agree new measures designed to speed up the handling of complaints, and that an increase in the commission's budget was also likely to be agreed. in may 1993, the commission announced a series of measur:es designed to reinforce public confidence in the authority of the commission. membership of the commission and of its appointments commission would be altered so as to meet a perceived misconception regarding the commission's independence. and the commission not the industry would take final responsibility for the code of practice. in june 1993, the committee launched a new "help-line" service. its stated purpose was to assist members of the public who were concerned that the code of practice was likely to be breached in a press investigation relating to them. but the service aimed to provide no more than information about the publication of the news agency involved. it was a pale thing compared with the "hot line" which had been proposed by the old press council, and recommended by the privacy committee. in july 1993, the industry's code of practice was revised in a number of respects. first, explicit responsibility was placed on editors for the actions of their journalists. secondly, specific provision was made about the use of long-lens photography to take pictures of people on private property. thirdly, the appropriate manner of reporting of cases involving a sexual offence against a child was expanded and spelt out. finally, "public interest" exceptions were given definition, and so narrowed. in september 1993 the commission made the anticipated changes in its membership. in addition to the independent chairman, the commission, as newly constituted, was to comprise eight non-press members and seven editors. in january 1994, after the episode concerning the photographs of the princess of wales in the gym, the commission appointed one of its lay members, professor pinker, to act as the privacy commissioner, giving him powers to investigate urgent complaints about privacy, and to bring those complaints to the commission for decision under the code of practice. plainly the code has now been strengthened, and now comes closer to the recommendation of the privacy committee. but why, one may ask, was this not done in the first place? and, even so, has enough been done? and can the industry now deliver effective regulation? even the present arrangements fall short of the recommendations of the privacy committee. where stands the press itself in all of this? in matters affecting press regulation, the press tends to speak with one voice. in whatever way the press may present it, self-regulation appears to be the limit to which the press itself is prepared to go; and initiatives suggested by others which contemplate a modest degree of statutory support receive a uniformly hostile press reception, often bordering on paranoia. the press, as the messenger, is not usually at its most detached and objective when it comes to reporting stories critical of the press and of its own statutory arrangements. to freedom of the press: freedom from the press the fragility of the present arrangements was dramatically highlighted by the events surrounding the publication, in november 1993, by the sunday mirror (and then by the daily mirror) of the photographs taken of the princess of wales in the gym. so far as the sunday photographs were concerned, the chairman of the press complaints commission condemned on the sunday their publication, as a breach of the industry's code of practice, and said that he expected the mirror group of newsapers to avoid any further publication of the photographs. but on the following day the monday the daily mirror repeated publication of the gym photographs, and described the press complaints commission as a body which existed "to protect the liars amongst our disreputable rivals". it was not so much the publication of the sunday photographs that was significant, but rather the contempt shown for the commission on the following day. peace, at least outwardly, was restored later that week, but only after an apology had been made by the mirror group, and, more remarkably, after the chairman of the commission had withdrawn remarks made by him. if that is the way in which a significant player is prepared to treat publicly its own regulatory body, what hope is there for effective self-regulation? as the secretary of state was reported to have said at the time, the press complaints commission must make a "quantum leap" if self-regulation was to survive. finally, and more importantly, where now stands the government in all of this? i have so far taken the parliamentary story up to the debate which took place in june 1993. during the autumn of 1993 there were many reports of impending government activity, but, again, nothing happened. and the criminal justice and public order bill contained no relevant clauses. in february 1994, it was reported in the independent (14 february) that a comprehensive white paper on press regulation would be published in march, but that ministers had yet to agree on introducing a new civil law of privacy. it was said, however, that the cabinet committee on home affairs had given clearance to the secretary of state to proceed with his long-awaited white paper on the press. one of the more entertaining episodes in the press's campaign to maintain selfregulation, was the production, in february 1994, by the combined efforts of the association of british editors, the guild of editors, and the international press institute, of a paper called media freedom and media regulation. produced, no doubt, in the expectation that the government was indeed about to produce its long-awaited white paper, the press, by describing its paper as "an alternative white paper", at least demonstrated that the press assumed that the government was unlikely to propose what the press itself would have wished. as it is, we now have an "alternative white paper", but no original "white paper". in march 1994 it was reported in the press (the times, 12 march) that the prime minister had ordered a re-think on long-awaited government plans to tighten regulation of the press, and that a white paper, due to be published in march, had been torn up amid signs that the effort to lessen press intrusion had run into serious difficulties. 11 the denning law journal in april 1994 it was reported (the daily telegraph, 9 april) that the prime minister had intervened to give the press' 'one last chance" to introduce effective self-regulation over invasions of privacy. the report was in these terms. "after months of wrangling in whitehall over the content of a government white paper on privacy, mr major has decided that there should be a final review period in which newspapers can demonstrate a willingness to make self-regulation work. however, later this spring, ministers still intend to publish a long-awaited privacy white paper containing proposals for legislation. a draft privacy bill, accompanying it, is intended to act as a "sword of damocles" hanging over the media. mr major has decided to hold the bill in reserve to be introduced only if it becomes evident that the media have spurned the final opportunity to address growing concern over gross invasions of privacy. " no-one would suggest that the issues involved are anything other than complex which is presumably one reason, at least, why the government set up an inquiry in the first place. no-one can quarrel with a desire, on the part of the government, to get it right. but, assuming the report is accurate, "a final review period", "a final opportunity", and another "one last chance" all sound distinctly ominous: we have been there before. but why should there be such inordinate delay? there may sometimes be good sense in some delay; but undue delay may raise wider questions about political will and determination. as mr gerald kaufman, who was the chairman of the national heritage select committee, said at the end of the debate in pariament on 10 june 1993 "if no action is taken, the press will slide backwards in the belief that it has got through its crisis and that it is now all clear for it to return to some of the deeply objectionable ways from which, we hope, it is beginning to emerge." but that was now said over a year ago. it is for this reason that it now becomes important to consider the government response made in a debate in the house of lords in may. on 24 may, lord ackner, in committee, moved an amendment to the criminal justice and public order bill to insert a new clause directed to breaches of privacy with intent to obtain and publish information (as proposed by the privacy committee). earl ferrers, speaking on behalf of the government, said this. "there is now doubt that the behaviour of certain sections of the press, intruding into personal lives of both celebrities and ordinary members ofthe public, has, on occasion, been nothing less than deplorable. . . when any suggestion is made that there should be legislation to curtail such activities, there is a pathetic cry of 'don't touch the press'. if there is to be freedom of the press and there should be it is a privilege which carries a two-way responsibility. in any proposal for legislation which attempts to balance two rights, there are inevitably problems of principle and of definition which have to be resolved. it is essential that any proposals in this field should find the right balance between, 12 freedom of the press: freedom from the press on the one hand, the application of criminal and civil law , and, on the other hand, the freedom of the press and the rights of others, notably the right to privacy. any legal formulation in this difficult and sensitive area must be defined as clearly and unambiguously as possible if we are to ensure that it catches unacceptable intrusions but that it allows legitimate investigative work to continue. i shall not conceal from the committee that we have found it very difficult to reconcile those conflicting claims and to ensure the necessary precision in any legislative proposal. the various efforts which have been made in the past to control the excesses of the press behaviour are only too well known. the committee is aware of how much time has passed and the fact that the government have not yet made up their mind on these important questions. but i can assure the committee that the government have not been idle. it has become plain to us that the issues involved are very complex and sensitive, but they need to be considered as a whole in order to ensure that the balance is properly struck." so far, then, so good. but there then followed an indication that the whole matter would one day but not yet be thrown back into the public arena. the minister said this. "with an issue of such importance, it is essential that we get things right and that any proposal should be the subject of fully informed and national consideration . . . we propose to issue a white paper on the whole subject of press intrusion into privacy. in addition to dealing with the questions of self-regulation and a new civil tort, the white paper will also consider in some detail the various questions, both of practice and of principle, to which any extension of the criminal law in this area would give rise. this will give parliament and the public an opportunity for us to take a wider and fuller view." the minister had given no indication when the white paper would be published. lord ackner asked for this information; but the response was not encouraging. the minister said that the white paper would be produced when it was ready, but that it was unlikely to be immediate, because the government had yet to make up its mind. but if the government does not make up its mind, what will happen? lord renton enquired about the true nature of the government's intended paper. was it truly to be a white paper (as the minister had described it), which, as lord renton put it, was' 'rather conclusive and usually a prelude to legislation"? or was it, in truth, what is commonly spoken of as a "green paper" i.e. a consultative paper? the minister replied in these terms. "it is clear to say my noble friend lord renton and the committee that the government have not yet made up their mind and are considering the position. the object of a white paper is to enable the government to say 'there are our 13 the denning law journal thoughts', and find out what is the reaction of the public. that will be the purpose of the white paper. " in saying this, the minister was simply confirming what he had said earlier. but ifthe government's purpose is to engage in national and public consideration, in what are acknowledged to be very complex and sensitive issues, was there any real point in setting up the privacy committee in the first place? and who is likely to guide national and public consideration, if it be not the press? but if there is to be such consideration, why should there also be the delay? the real issue, i suspect, may be a very different one. it is this. does the government really have the political will and dertemination to do what it judges needs to be done? fu rther delay, followed one day by a paper which perhaps offers another" last chance", and which invites public consideration, followed possibly by yet another "last chance", may only serve to foster at least the thought that, notwithstanding all the recommendations which have been made, there is, in fact, no political will to do anything about it at all. as the 1994 summer recess approaches, with still no government repsonse, so too and perhaps you may say "thankfully" does the long vacation; and i leave all these thoughts to you for your peaceful vacation contemplation. 14 the denning law journal 41 denning law journal 2019 vol 31 pp 41-76 the fédération equestre internationale speaks for the horse who has no voice and the court of arbitration for sport listened: equine welfare and anti-doping in equestrianism dr laura donnellan* introduction the strict liability standard employed by the fédération equestre internationale (fei) in equine doping cases has been a source of contention among academics, riders and trainers. the fei disciplinary tribunal and the court of arbitration for sport (cas) have consistently upheld the standard and no alternative has been considered. at the core of the application of the strict liability standard has been the protection of the equine athlete. with the dual aims of the protection of equine athletes and equality between competitors, the fei imposes a provisional equine suspension when a horse’s sample records an adverse analytical finding. the standard of strict liability and the imposition of provisional suspensions together put the welfare of the horse to the fore. while the intentions of the fei have been based on this noble premise, ambiguities and inconsistencies have undermined the effectiveness of the equine anti-doping and controlled medication regulations (eadcmrs). the aim of this article is to examine whether the regulatory framework, the eadcmrs, is fit for purpose and adequately protects the equine athlete. the article will focus on two main principles that underpin the eadcmrs, namely provisional equine suspensions and the standard of strict liability. recourse will be made to seminal cases that will act as a lens through which the regulatory framework can be assessed. a recent case involving american dressage competitors and the imposition of provisional equine suspensions highlighted the need for the fei to make more explicit the basis on which the rule was created. the cas upheld the fei’s policy of provisionally suspending horses for two-months on grounds of animal welfare and ensuring a level playing field. however, the cas agreed with the appellants as to the lack of clarity surrounding * lecturer in law, school of law, university of limerick, ireland. 42 the fédération equestre internationale speaks for the horse who has no voice and the court of arbitration the provisional suspension. in examining the application of the principle of strict liability, the article will determine whether it is an appropriate standard and whether a relaxation of the standard is feasible or if it would compromise the welfare of the horse. in order to put the regulatory framework into context, the article will discuss the purpose of anti-doping, the history of doping and equine sports and the ethical issues that equine doping invokes. it will trace the development of the eadcmrs against the background of positive tests at the 2004 olympic games in athens and the 2008 olympic games in beijing. following the subsequent appeal of fei tribunal decisions to the cas, all of which the cas upheld, the fei set about establishing a more robust regulatory framework. while the current regulations are comprehensive, their verboseness has led to confusion, testament to this is the number of appeals of fei tribunal decisions to the cas. the purpose of doping in equine sport: equine welfare the relationship between humans and horses can be traced back thousands of years. while it is unclear why horses were first domesticated, it is surmised that they were first used for the purposes of meat and subsequently as ‘tools’ for transportation.1 horses played an important role in world war i and world war ii; however, after world war ii, working horses all but disappeared.2 increased mechanisation and the ensuing increase in leisure time changed the role and indeed perception of the horse from a tool of transportation or a source of food to a ‘leisure animal’.3 horses first competed in the olympic games in stockholm in 1912. today, there are only three olympic sports where human and equine athletes compete together: jumping, eventing and dressage.4 the pivotal role of the 1 martine hausberger, helene roche, severine henry and kathalijne visser, ‘a review of the human–horse relationship’ (2008) 109 applied animal behaviour science 1, 2. 2 ma atock and rb williams, ‘welfare of competition horses’ (1994) 13(1) revue scientifique et technique de l’oie 217, 23 <https://pdfs.semanticscholar. org/2084/76b91c06991d8272747d215a7fc67cb630b3.pdf> accessed 7 april 2019. 3 ibid. hausberger et al. (n 2) 3 refer to the ‘mixed status’ of the horse, a ‘source of food for some, for leisure and sport for others, or, less frequently, an agricultural working companion in rural areas’. see also michelle gilbert and james gillett, ‘equine athletes and interspecies sport’ (2011) 47(5) international review for the sociology of sport 632. the writers refer to the limited use of horses in modern society as horses are primarily used for leisure and recreation. 4 kent allen and stephen a schumacher, ‘impact of the fei rules on sport horse https://pdfs.semanticscholar.org/2084/76b91c06991d8272747d215a7fc67cb630b3.pdf https://pdfs.semanticscholar.org/2084/76b91c06991d8272747d215a7fc67cb630b3.pdf the denning law journal 43 regulatory bodies of horse sports is the safeguarding of the welfare of the horse. the welfare of horses ‘must always be the primary driving force’, even in situations when it conflicts with ‘certain commercial aspects of the industry’.5 the fédération equestre internationale (fei), the world governing body for equestrian sports, in safeguarding the welfare of horses, has a code of conduct for the welfare of the horse.6 the code enumerates a number of requirements that human agents must uphold including general equine welfare considerations, for example good horse management, training methods, farriery and tack, transport and transit.7 under fitness to compete, there are guidelines on fitness and competence, health status and doping and medication. under the eadcmrs, it states: any action or intent of doping and illicit use of medication constitute a serious welfare issue and will not be tolerated. after any veterinary treatment, sufficient time must be allowed for full recovery before competition.8 all those involved in international equestrianism are bound by the code, which states that ‘at all times the welfare of the horse must be paramount’.9 it is clear from these sections of the code that the fei operates in a custodian type role, as a representative for the equine athlete.10 equestrianism presents a unique bond between the human and the animal.11 the cas recognised this imitable relationship, in particular the vulnerable position of the horse as it contended that ‘[h]orses, unlike humans, cannot themselves take care to avoid the medications’ in kim a sprayberry and n edward robinson (eds), robinson’s current therapy in equine medicine (7th ed, elsevier health sciences 2014) 112. the first time horses participated in the ancient olympics dates back to 680 bc, fei, ‘history’ <http:// history.fei.org/node/104> accessed 7 april 2019. 5 ibid. 6 fei, ‘fei code of conduct for the welfare of the horse’ (fei), 2013, <https://inside.fei. org/system/files/code_of_conduct_welfare_horse_1jan2013.pdf> accessed 7 april 2019. 7 ibid. 8 ibid. 9 ibid., 1 10 fei, ‘our values’ (fei), 2019, <https://inside.fei.org/fei/about-fei/values-history> accessed 28 march 2019. 11 ibid. it is a not-for-profit organisation which aims to ‘drive and develop equestrian globally in a sustainable, progressive and structured manner whilst ensuring maximum visibility and promotion of our seven unique disciplines’. http://history.fei.org/node/104 http://history.fei.org/node/104 https://inside.fei.org/system/files/code_of_conduct_welfare_horse_1jan2013.pdf https://inside.fei.org/system/files/code_of_conduct_welfare_horse_1jan2013.pdf https://inside.fei.org/fei/about-fei/values-history 44 ingestion of prohibited substances. the welfare and health argument has a proper and particular resonance in their case’.12 the history of doping and horses while human doping can be traced back to ancient greece, there is no indication that horses were doped; however, according to greek mythology, king diomedes of thrace gave horses human flesh to consume to ‘make them savage and unbeatable’.13 it is reasonable to contend that horses would have been given dietary supplements in the ancient olympics.14 horses in ancient roman times, it is claimed, were given a mixture of honey and water to increase endurance.15 higgins concludes that ‘[l]ittle is known of the evolution of horse doping over the following sesquimillenium’.16 doping of horses was first prohibited in horseracing. the jockey club in october 1903 announced that ‘the practice known as doping’ would result in the warning off from the turf.17 the rule provided that ‘if any person or persons shall be proved to have administered, for the purpose of affecting the speed of a horse, drugs or stimulants internally, by hypodermic or other methods’, the persons involved would receive a warning off. up until this point, doping was permitted and it would seem that the jockey club did nothing to dissuade it. the introduction of the rule was stated to be based on concerns for the welfare of horses. however, there was anecdotal evidence from russia and austria that doping impaired breeding; the french jockey club had decided to prohibit it at around the same time as the english jockey club.18 doping was used to both improve and slow down horses and the prohibition on the use of drugs was very much tied up with fairness and betting and had nothing to do with ‘the typically assumed twentieth 12 arbitration cas 2017/a/5114 elizabeth juliano, owner of horizon; maryanna haymon, owner of don principe; adrienne lyle and kaitlin blythe v fédération equestre internationale (fei), award of 19 march 2018, para 68, <http://jurisprudence.tas-cas.org/ shared%20documents/5114.pdf> 13 aj higgins, ‘from ancient greece to modern athens: 3000 years of doping in competition horses’ (2006) 29(1) journal of veterinary pharmacology and therapeutics 4, 6. 14 ibid. 15 ibid. 16 ibid. 17 editorial, ‘the newmarket and kempton meetings’ (times, 6 october 1903) 2. 18 ibid. the fédération equestre internationale speaks for the horse who has no voice and the court of arbitration http://jurisprudence.tas-cas.org/shared%20documents/5114.pdf http://jurisprudence.tas-cas.org/shared%20documents/5114.pdf the denning law journal 45 century concerns about safety or preserving the spirit of sport’.19 the anti-doping attitude that prevailed at the time signified the modernisation of horseracing, as it was the first sport to identify and prohibit doping.20 by 1910, it was possible to test for the presence of alkaloids in the saliva of horses.21 saliva testing for alkaloids including caffeine, cocaine, morphine and strychnine were being conducted in most racing countries by 1913.22 as the sanction for a positive test was disqualification, there was a decline, albeit a brief one, in incidences of doping. the legalisation of pari-mutuel betting in the united states in 1933 resulted in an increase in doping.23 during the 1930s, it was claimed that fifty per cent of all racehorses were doped.24 the purpose of doping racehorses was for one of two purposes, to make the horse go faster or cause the horse to go slower.25 stimulants such as strychnine and caffeine would be used to make the horse go faster and to the slow down the horse, s/he would be given a large dose of barbiturates or chloral.26 more indirect methods would also be used, for example, a horse who was suffering from lameness after surgery would be given an injection or a local anaesthetic applied to the affected area and thus mask the pain and treat the lameness.27 tranquilisers would also be given to ‘obstreperous’ horses to make them more manageable.28 the administration of prohibited substances or methods was not only a breach of the rules of racing; it also caused horses to compete while injured and exacerbate the injury. it was contended that fifty per cent of us racehorses had been given a stimulate or a local anaesthetic before a race resulting in a ‘much higher incidence of injuries during races caused by insensitivity to pain and lack of proper coordination of muscular movement owing to the administration of massive doses of cocaine, heroin, strychnine and caffeine’.29 a concern for racing authorities was that doping would 19 john gleaves, ‘enhancing the odds: horseracing, gambling and first anti-doping movement in sport, 1889–1911’ (2012) 32(1) sport in history 26, 27. 20 ibid., 28–29. 21 michele verroken, ‘drug use and abuse in sport’ in david mottram (ed), drugs in sport (2nd edn, e & fn spon 1996) 19. it was found that saliva was the most reliable to test in comparison to sweat, faeces and urine, higgins (n 14) 6. 22 ibid. 23 ibid. 24 egc clarke, ‘the doping of racehorses’ (1962) 30(4) medico legal journal 180, 184. 25 ibid., 181. 26 ibid. 27 ibid. 28 ibid. 29 lf addis-smith, ‘the changing pattern of “doping” in horse racing and its control’ (1961) 9(6) new zealand veterinary journal 121. 46 result in a dilution of the quality of the thoroughbred racehorse as some ‘breeders complained of impotency, sterility and weak foals’.30 the ‘yardstick’ used in racing is that of the performance record of the horse, thus ‘[a] horse must win on its merits, or the whole system of selection for breeding purposes becomes meaningless’.31 the welfare of the horse and the ethical issues that surround doping did not feature in the literature from this time. while horseracing had been the forerunner when it came to anti-doping, the fei was initially of the view that equestrian sports were ‘relatively clean’.32 situations where horses tested positive, were for the most part, the result of antiinflammatory administered by the person responsible or the veterinary surgeon, which had been given too close to the time of competition.33 the ‘dividing line’ between a horse receiving medical treatment to be restored to ‘pre-wear and tear level’ and a horse being prepared for competition became increasingly blurred.34 the ethical issues the use of drugs in equine sports raises several ethical issues. the animal welfare act 2006 refers to ‘unnecessary harm’; it is difficult to apply ‘unnecessary harm’ to equine sports as the use of horses in sport is not ‘strictly necessary’.35 the more appropriate term is ‘avoidable suffering’, as this term arguably enables humans ‘to address the welfare issues associated with sporting use of animals even if one believes … that the use of animals for sport is fundamentally unethical’.36 there are two important considerations when it comes to doping and horses. if a horse is being doped in order to enhance performance, there is an element of cheating, which is against the principles of clean and fair competition. there is also an animal welfare issue if a substance is given to a horse either to enhance performance or to mask an injury.37 there is a grey area, that of contaminated food and supplements which can easily be ingested by the horse and unwittingly 30 higgins (n 14) 6. 31 addis-smith (n 30). 32 higgins (n 14) 6. 33 ibid. the withdrawal time was insufficient and the horse would test positive. 34 ibid. 35 mlh campbell, ‘when does use become abuse in equestrian sport?’ (2013) 25(10) equine veterinary education 489, 490. section 4 of the animal welfare act 2006 c.45 defines unnecessary harm, see <https://www.legislation.gov.uk/ukpga/2006/45/pdfs/ ukpga_20060045_en.pdf> 36 ibid. 37 in the latter situation, the horse should not compete until the injury has fully healed. the fédération equestre internationale speaks for the horse who has no voice and the court of arbitration https://www.legislation.gov.uk/ukpga/2006/45/pdfs/ukpga_20060045_en.pdf https://www.legislation.gov.uk/ukpga/2006/45/pdfs/ukpga_20060045_en.pdf the denning law journal 47 result in a positive test for a banned or controlled substance, as the case of lyle and blythe discussed below demonstrates.38 there is a moral and ethical dimension when it comes to administrating pharmacological products to equine athletes.39 however, the fei distinguishes between doping (performance enhancing or masking an injury) and the use of bona fide veterinary treatment in the form of medication.40 when it comes to taking a prohibited substance, the human athlete, in most cases, does so aware of the dangers and consequences, however, for the equine athlete, they have no choice in the matter. it is up to the fei to speak for the equine athlete and safeguard his/her welfare. the olympic games of 2004 and 2008: a turning point the fei is the international governing body for 134 affiliated national federations.41 it is the only international governing body for equestrian recognised by the international olympic committee (ioc). in 1921, france, norway, sweden, belgium, italy, denmark, the united states and japan founded the fei in lausanne, switzerland.42 while it is not clear when the fei introduced equine anti-doping provisions, in 1977 at an international conference in rome, representatives from the fei and other horse sport bodies approved a list of prohibited substances.43 although horseracing is not regulated by the fei, the fei has closely followed the anti-doping procedures of the regulatory bodies of horseracing.44 in the united 38 decision of the fei tribunal 18 december 2018, positive anti-doping case no.: 2017/ bs16 kaitlin blythe <https://inside.fei.org/system/files/case%202017%20-%20bs16%20 -%20don%20principe%20 -%20fei%20tribunal%20decision%20 -%2018%20 december%202018%20rev.pdf> and decision of the fei tribunal 18 december 2018, positive anti-doping case no.: 2017/bs15 adrienne lyle https://inside.fei.org/system/ files/case%202017%20-%20bs15%20-%20horizon%20-%20fei%20tribunal%20 decision%20-%2018%20december%202018.pdf> accessed 21 august 2019. 39 higgins (n 14) 4. 40 ibid. 41 fei, ‘national federations’ (fei) <https://inside.fei.org/fei/about-fei/structure/ national-federations> accessed 7 april 2019. its disciplines are vaulting, reining, driving and para, dressage and para, jumping, endurance and eventing. 42 allen and schumacher (n 5) 112. 43 atock and williams (n 3) 223. 44 campbell (n 36) 490 notes that the anti-ulcer drug, omeprazole is permitted by the fei, however, the british horseracing authority (bha) prohibits it in competition but allows it to be used during training. he raises an interesting argument in regard avoidable harm in both banning and permitting omeprazole. if a horse is suffering from ulcers due to stress, https://inside.fei.org/system/files/case%202017%20-%20bs16%20-%20don%20principe%20-%20fei%20tribunal%20decision%20-%2018%20december%202018%20rev.pdf https://inside.fei.org/system/files/case%202017%20-%20bs16%20-%20don%20principe%20-%20fei%20tribunal%20decision%20-%2018%20december%202018%20rev.pdf https://inside.fei.org/system/files/case%202017%20-%20bs16%20-%20don%20principe%20-%20fei%20tribunal%20decision%20-%2018%20december%202018%20rev.pdf https://inside.fei.org/system/files/case%202017%20-%20bs15%20-%20horizon%20-%20fei%20tribunal%20decision%20-%2018%20december%202018.pdf https://inside.fei.org/system/files/case%202017%20-%20bs15%20-%20horizon%20-%20fei%20tribunal%20decision%20-%2018%20december%202018.pdf https://inside.fei.org/system/files/case%202017%20-%20bs15%20-%20horizon%20-%20fei%20tribunal%20decision%20-%2018%20december%202018.pdf https://inside.fei.org/fei/about-fei/structure/national-federations https://inside.fei.org/fei/about-fei/structure/national-federations 48 states, horseracing authorities have used the trainer ‘absolute insurer rule’, which places responsibility on the trainer to ensure that the horse does not ingest a prohibited substance.45 it is described as ‘an administrative, as opposed to statutory, rule’.46 it is a form of no fault liability that is placed on the trainer. however, recent changes in by the rules by the kentucky horse racing commission now allow for mitigating and aggravating factors following a case where a franklin circuit court judged questioned the constitutionality of the rule which denies the trainer the right to due process. the kentucky court of appeal reversed the decision of the lower court on the grounds that ‘[b]y limiting the amount of medications and drugs given to horses the commission is protecting the health of horses and ensuring the integrity of racing itself. these are significant rational reasons to uphold the regulation as constitutional’.47 while judge wingate’s decision was overruled, it has resulted in changes to the commission’s regulations.48 the 2004 olympics in athens was a turning point for the fei and anti-doping. four equine athletes tested positive for banned substances, including ireland’s cian o’connor’s horse, waterford crystal.49 o’connor received a three month ban and was fined 5,000 swiss francs.50 then this raises questions as to the management of the horse. by using the drug to deal with management issue is a form of avoidable harm. on the other hand, if the horse is suffering from ulcers due to intensive management and international travel then s/he should be given the drug to ease pain and thus reduce avoidable suffering. 45 ray paulick, ‘kentucky court of appeals: absolute insurer rule is constitutional; kitten’s point medication dq upheld’ (paulick report, 21 december 2018) <https://www. paulickreport.com/news/ray-s-paddock/kentucky-court-of-appeals-absolute-insurer-rule-isconstitutional-kittens-point-medication-dq-upheld> accessed 2 august 2019. 46 bennett liebman, ‘the trainer responsibility rule in horse racing’ (fall 2007) 7(1) virginia sports and entertainment law journal 1, 2. 47 ky. horse racing commission v motion, no. 2017-ca-001458-mr (ky. ct. app. dec. 21, 2018) para. 13. franklin circuit court judge wingate held that the kentucky horse racing commission had acted outside the scope of its authority, there was a lack of due process and a lack of scientific evidence to support the finding in relation to the banned substance; these three factors pointed to the commission acting in a ‘capricious and arbitrary manner’, see paras 4 and 14 of the court of appeal judgement. 48 natalie voss, ‘kentucky rules committee approves changes to absolute insurer requirement’ (paulick report, 10 april 2018) <https://www.paulickreport.com/news/thebiz/kentucky-rules-committee-approves-changes-to-absolute-insurer-requirement> accessed 3 august 2019. 49 waterford crystal tested positive for fluphenazine and zuclopenthixol, human medicines for the treatment of schizophrenia. 50 louise parks, ‘three-month ban as o’connor loses gold’ (irish independent, 28 the fédération equestre internationale speaks for the horse who has no voice and the court of arbitration https://www.paulickreport.com/news/ray-s-paddock/kentucky-court-of-appeals-absolute-insurer-rule-is-constitutional-kittens-point-medication-dq-upheld https://www.paulickreport.com/news/ray-s-paddock/kentucky-court-of-appeals-absolute-insurer-rule-is-constitutional-kittens-point-medication-dq-upheld https://www.paulickreport.com/news/ray-s-paddock/kentucky-court-of-appeals-absolute-insurer-rule-is-constitutional-kittens-point-medication-dq-upheld https://www.paulickreport.com/news/the-biz/kentucky-rules-committee-approves-changes-to-absolute-insurer-requirement https://www.paulickreport.com/news/the-biz/kentucky-rules-committee-approves-changes-to-absolute-insurer-requirement the denning law journal 49 at the beijing olympics in 2008, four horses tested positive for capsaicin, a component of topical ointments for horses and used in ‘deep heat’ which humans use for the treatment of aches and pains.51 irish rider, denis lynch, contended that he had used equi-block for over a year on his horse, lantinus.52 he stated that he had used equi-block to keep lantinus’ back muscles warm.53 although lantinus had been tested a number of times, he never tested positive until the 2008 games.54 the fei tribunal, in banning lynch for three months, applied the strict liability principle, which was subsequently endorsed by the cas in the ahlmann decision.55 at the fei tribunal hearing, ahlmann could not explain the presence of the prohibited substance.56 however, under the principle of strict liability, intent is irrelevant. the mere presence of a prohibited substance is all that is required. the fei tribunal acknowledged that the ‘heavy’ burden is ‘impossible to discharge’.57 in citing the jurisprudence of the cas, the fei tribunal asserted that if intent were to be proved, it would make the fight against doping ‘practically impossible’.58 it emphasised the fei’s medication policy as having the dual aims of ensuring a level playing field and animal welfare. in particular, the equine athlete, unlike the human rider, is unable to verbalise his/her feelings and ‘it is vital for the image and progress of the sport to ensure that the horse’s welfare is march 2005) <https://www.independent.ie/irish-news/threemonth-ban-as-oconnor-losesgold-25997017.html> accessed 6 april 2019. 51 john t wendt, ‘the crisis of doping in equestrian sport’ (2009) 27(3) entertainment and sports lawyer 10. 52 ibid. 53 lynch appealed the fei tribunal decision to the court of arbitration for sport (cas), the cas held that it had no jurisdiction to hear the appeal. arbitration cas 2008/a/1655 denis lynch v fédération equestre internationale (fei), award of 6 march 2009. 54 ibid. 55 cas 2008/a/1700 deutsche reiterliche vereinigung ev v fei & christian ahlmann cas 2008/a/1710 christian ahlmann v fei. for a detailed discussion of the case see, mary zoeller, ‘gray area: court of arbitration for sport says neigh to reconsidering strict liability for equestrian sport’ (2016) 23(2) jeffrey s. moorad sports law journal 457. 56 decision of the fei tribunal dated 22 october 2008, positive medication case no: 2008/20, christian ahlmann, para 4.3 (14) <https://inside.fei.org/system/files/20%20 -%20coster%20-%20tribunal%20decision%20-%2022%20october%202008.pdf> accessed 1 august 2019. both samples a and b were tested and both were positive for capsaicin. 57 ibid., para 4.8.3 (55). 58 ibid., citing the case of cas 95/141, c v fina, 22 april 1996, in digest of cas awards, i, § 13. https://inside.fei.org/system/files/20%20-%20coster%20-%20tribunal%20decision%20-%2022%20october%202008.pdf https://inside.fei.org/system/files/20%20-%20coster%20-%20tribunal%20decision%20-%2022%20october%202008.pdf https://www.independent.ie/irish-news/threemonth-ban-as-oconnor-losesgold-25997017.html https://www.independent.ie/irish-news/threemonth-ban-as-oconnor-losesgold-25997017.html 50 strictly maintained’.59 public perception was thus identified as an important consideration. the fei contended that the person responsible owes a higher duty of care at the olympics given the reputational damage that an adverse analytical finding can have on the sport.60 the fei tribunal agreed as the ‘pr is an experienced sportsman and the behaviour of anyone at the top of the sport and particularly the olympic games must be faultless since the eyes of the world focus on performances at such events’.61 ahlmann was deemed to be negligent and was unable to discharge the burden that he bore no fault or negligence. the fei tribunal disagreed with the fei that a substance could be both a prohibited substance and a controlled medication. it is one or the other but not both. the use of the word ‘or’ and not ‘and’ meant that capsaicin fell under controlled medication, the fei had failed to discharge the burden that ahlmann had committed an anti-doping violation.62 veterinary evidence proffered that capsaicin in this case was not used for hypersensitising purposes and thus the fei tribunal held that it constituted a controlled medication.63 the fei tribunal in taking into account mitigation and aggravating factors placed a four-month period of ineligibility on ahlmann, fined him 2,000 swiss francs and ordered him to pay 1,500 swiss francs towards the legal costs.64 the german national federation challenged the fei tribunal decision and appealed it to the cas as provided for under article 39 of the fei statute, on the ground that ahlmann should be banned for a period of not less than eight-months as capsaicin was a prohibited substance and not a controlled medication.65 ahlmann subsequently challenged the appealed decision on the grounds that a 59 fei tribunal (n 57) para 4.8.3 (57). 60 ibid., para 4.10 (80). 61 ibid., para 4.10 (87). 62 fei tribunal (n 57) para. 4.8.2 (42–53). 63 ibid., para 4.8.2. (52). 64 ibid., para 4.10 (89). the mitigating factors included the following: ahlmann did not have a prior violation, he had assisted in the investigation, he was a well-respected competitor, he had suffered hardship in being precluded from competing and thus he missed a number of important events, para 10.9 (79). another important consideration for the fei tribunal was that the substance was newly detectable and was used by riders as a form of legitimate therapeutic use, para 10.9 (88). the aggravating factors identified by the fei tribunal included: the failed test took place at the olympics, animal welfare concerns, the negligence of the pr not to check that the product contained a banned substance, para 10.9 (86–87). 65 cas (n 56) para 31. see fei statute 2019 <https://inside.fei.org/sites/default/files/ fei%20statutes_2019_clean_0.pdf> accessed 2 august 2019. the fédération equestre internationale speaks for the horse who has no voice and the court of arbitration https://inside.fei.org/sites/default/files/fei%20statutes_2019_clean_0.pdf https://inside.fei.org/sites/default/files/fei%20statutes_2019_clean_0.pdf the denning law journal 51 period of suspension in excess of three months was ‘contrary to law’.66 he further contended that the fei prohibited list did not explicitly define doping and in using the contra proferentem rule, any ambiguity should be read in favour of ahlmann.67 in arguing that the fei prohibited list was esoteric, counsel for ahlmann asserted: it would grossly contravene the principles of justice to sanction mr. ahlmann based on arbitrary rules that can only be understood by a small group of insiders and that leave grey areas between medication and doping and between legal and illegal practises. further, such grey areas have to be interpreted in favour of mr. ahlmann, meaning that in case of doubts (grey area) a practice must be considered legal.68 the cas increased the period of ineligibility to eight-months as it found that capsaicin fell under the anti-doping rules and not controlled medication as held by the fei tribunal. this case highlighted the ambiguities in the anti-doping and controlled medications regulations as the fei contended that a substance could be both a prohibited substance and a controlled medication while its own disciplinary tribunal found that it was a controlled medication and as such it was deemed to be a lower level violation of the regulations. in the aftermath of the ahlmann decision and other olympic failed tests, the fei adopted a more aggressive, coherent and proactive approach to doping. the development of the fei equine anti-doping and controlled medication regulations (eadcmrs) following the positive tests at the beijing olympics, the fei convened the clean sport commission, headed by professor arne ljungqvist, the vice-president of wada and chairperson of the ioc medical commission.69 the purpose of the 66 ibid., para 27. he argued that the appeal should be dismissed as the german national federation had delayed in filing the appeal and it had no legitimate interest in appealing to the cas, para 44. see paras 45–50, the cas found that the german national federation had filed the appeal in a timely manner. see paras 51–59, the cas concluded that the german national federation as a member of the fei had standing to bring the appeal. 67 ibid., para 32. ahlmann also proffered that the amount of the substance used was so low that it could not be said to have a therapeutic effect. 68 ibid. 69 the commission continued on the work of the 2004 doping and medication policy taskforce. the commission on anti-doping and medication consisted of fourteen members plus the chair and was comprised of representatives from the fei, ioc, the 52 commission was ‘to establish the best possible system to promote drug-free equine sport’.70 the commission gave cognisance to the fact that there was much confusion surrounding prohibited substances. it recommended that the anti-doping provisions be divided into two categories, anti-doping and controlled medications. in 2009, the fei set up the stevens’ commission, an ethics panel, headed by a former london metropolitan police commissioner, to look into allegations in relation to the german equestrian team and its officials at the 2008 olympics.71 the terms of reference of the stevens’ report were expanded ‘to include a wider overview of equestrian sport to dovetail with work of the ljungqvist commission and provide the fei with a complete spectrum of changes to be implemented in the fight against doping’.72 the stevens’ and ljungqvist commissions were aligned to produce the joint commission recommendations, which were accepted at the general assembly in copenhagen on 19 november 2009.73 while the fei viewed the recommendations as ‘revolutionary changes designed to transform the face of equestrian sport’, merritt opines that the recommendations were ‘woefully parochial’ and ‘the chance to treat horse sport as something fundamentally different to human-only sport was missed’.74 merritt’s appraisement in relation to developments in 2009 applies equally to the current eadcmrs. the fact that they are based on the wada code that applies to human athletes, little or no ingenuity was employed in creating a specific anti-doping code for equine athletes. this raises the question whether they are fit for purpose. the fei’s contention that the joint commission recommendations heralded ‘revolutionary changes’ must be viewed from the perspective that they were better than what had gone before. as the blythe and lyle case demonstrates, there is ambiguity surrounding specified substances and the two-month suspension for equine athletes. cas, an owner representative, veterinarians and three equestrian athletes. the commission was divided into four focus groups: laboratory working group, legal working group, list working group and communications and education working group, fei, ‘clean sport history’ <https://inside.fei.org/system/files/clean%20sport%20 history.pdf> accessed 8 april 2019. 70 allen and schumacher (n 5) 112. 71 merritt is critical of the appointment of a former head of scotland yard ‘who, as a key part of the prosecution arm of the state, would be unlikely to have any problem with the concept of strict liability. his panel was also drawn from the equestrian ruling class’, jonathan g merritt, regulating sport for the non-human athlete: horses for courses (rowman & littlefield 2018) 136. 72 fei, ‘clean sport history’ (n 70). 73 ibid. 74 merritt (n 72) 131–132. the fédération equestre internationale speaks for the horse who has no voice and the court of arbitration https://inside.fei.org/system/files/clean%20sport%20history.pdf https://inside.fei.org/system/files/clean%20sport%20history.pdf the denning law journal 53 in april 2010, the fei announced its clean sport initiative, which included the first equine prohibited substances list (epsl) and the equine anti-doping and controlled medications (eadcm) regulations.75 the epsl, like the wada list of prohibited substances, is reviewed annually; the most recent list was approved on 30 november 2018 and came into force on 1 january 2019.76 the fei has a tab on its website called ‘clean sport’ which contains a number of documents in relation to its doping policy.77 for the human participants, the wada code applies.78 the clean sport for horses includes the following documents: the fei equine anti-doping and controlled medication regulations (the regulations),79 prohibited substances (equine prohibited substance list, epsl),80 education,81 veterinary forms,82 how testing works83 and testing results and positive cases.84 the eadcmrs are divided into two: the equine anti-doping (ead) rules and the equine controlled medication (ecm) rules.85 75 allen and schumacher (n 5) 113. 76 fei, ‘2019 equine prohibited substances list’ <https://inside.fei.org/sites/default/ files/2019%20prohibited%20substances%20list_0.pdf> accessed 8 april 2019. 77 fei, ‘clean sport: horses’ <http://inside.fei.org/fei/cleansport/horses> accessed 6 april 2019. 78 fei, ‘clean sport: humans’ <http://inside.fei.org/fei/cleansport/humans> accessed 7 april 2019. the rules relating to equine doping incorporate the principles of the wada code. the fei anti-doping rules for human athletes (adrha) are based on the wada code and may be accessed at <https://inside.fei.org/sites/default/files/fei%20 adrha%20based%20upon%20the%202015%20wada%20code%2c%20effective%20 1%20january%202015_0.pdf> accessed 7 april 2019. 79 fei, ‘clean sport for horses – regulations’ <http://inside.fei.org/fei/cleansport/horses/ regulations> accessed 7 april 2019. 80 fei, ‘clean sport for horses – fei prohibited substances list’ <http://inside.fei.org/ fei/cleansport/ad-h/prohibited-list> accessed 7 april 2019. the epsl is reviewed on an annual basis. 81 fei, ‘clean sport for horses – education’ <http://inside.fei.org/fei/cleansport/horses/ education> accessed 20 august 2019. 82 fei, ‘clean sport for horses – veterinary forms’ <http://inside.fei.org/fei/cleansport/ ad-h/medforms> accessed 20 august 2019. 83 fei, ‘clean sport for horses – how testing works’ <http://inside.fei.org/fei/cleansport/ ad-h/how-testing-works> accessed 20 august 2019 84 fei, ‘test results & fei tribunal’ <http://inside.fei.org/fei/cleansport/horses/testingresults> accessed 20 august 2019. 85 eadcmrs, 2nd edition effective 1 january 2019, 1 <https://inside.fei.org/sites/default/ files/ eadcmrs%20 -%20effective%201%20january%202019%20 -%20final%20 version_clean%20-%20for%20publication_0.pdf> accessed 5 april 2019. https://inside.fei.org/sites/default/files/2019%20prohibited%20substances%20list_0.pdf https://inside.fei.org/sites/default/files/2019%20prohibited%20substances%20list_0.pdf https://inside.fei.org/sites/default/files/fei%20adrha%20based%20upon%20the%202015%20wada%20code%2c%20effective%201%20january%202015_0.pdf https://inside.fei.org/sites/default/files/fei%20adrha%20based%20upon%20the%202015%20wada%20code%2c%20effective%201%20january%202015_0.pdf https://inside.fei.org/sites/default/files/fei%20adrha%20based%20upon%20the%202015%20wada%20code%2c%20effective%201%20january%202015_0.pdf https://inside.fei.org/sites/default/files/eadcmrs%20-%20effective%201%20january%202019%20-%20final%20version_clean%20-%20for%20publication_0.pdf https://inside.fei.org/sites/default/files/eadcmrs%20-%20effective%201%20january%202019%20-%20final%20version_clean%20-%20for%20publication_0.pdf https://inside.fei.org/sites/default/files/eadcmrs%20-%20effective%201%20january%202019%20-%20final%20version_clean%20-%20for%20publication_0.pdf http://inside.fei.org/fei/cleansport/horses http://inside.fei.org/fei/cleansport/humans http://inside.fei.org/fei/cleansport/horses/regulations http://inside.fei.org/fei/cleansport/horses/regulations http://inside.fei.org/fei/cleansport/ad-h/prohibited-list http://inside.fei.org/fei/cleansport/ad-h/prohibited-list http://inside.fei.org/fei/cleansport/horses/education http://inside.fei.org/fei/cleansport/horses/education http://inside.fei.org/fei/cleansport/ad-h/medforms http://inside.fei.org/fei/cleansport/ad-h/medforms http://inside.fei.org/fei/cleansport/ad-h/how-testing-works http://inside.fei.org/fei/cleansport/ad-h/how-testing-works http://inside.fei.org/fei/cleansport/horses/testingresults http://inside.fei.org/fei/cleansport/horses/testingresults 54 the banned substances and controlled medication are collectively referred to as the prohibited substances.86 a number of concerns emerge from the cas decision in blythe and lyle, namely the confusion surrounding the interpretation of the eadcmrs and the lack of a codified rule that sets out the two-month provisional equine suspensions. in addition, there is the dichotomous position of the horse being considered an ‘equine athlete’ on the one hand, according to the fei in press releases,87 and on its clean sport webpage as the fei explains that the eadcmrs ‘exist to protect the health of our athletes – equine and human – as well as the integrity of our sport’.88 on the other hand, the eadcmrs do not refer to the equine athlete. however, the cas has recognised the horse’s status as an equine athlete: [t]he central and distinctive feature of equestrian sport is that it involves a partnership between two types of athlete, one human and one equine. one of those partners is unable to speak for itself, and therefore the fei has assumed responsibility for speaking on its behalf, by taking every necessary step to ensure that, in every aspect of the sport, the welfare of the horse is paramount.89 further inconsistencies are evidenced by the fact the fact that the eadcmrs are a ‘modified’ version of the wada code, the anti-doping code for human 86 banned substances are defined ‘as substances that are deemed by the fei to have no legitimate use in the competition horse and/or have a high potential for abuse. they are not permitted for use in the competition horse at any time’. controlled medications are defined ‘as substances that are deemed by the fei to have therapeutic value and/or be commonly used in equine medicine. controlled medications have the potential to affect performance and/or be a welfare risk to the horse’, fei, ‘clean sport for horses – fei prohibited substances list’ <http://inside.fei.org/fei/cleansport/ad-h/prohibited-list> accessed 21 august 2019. 87 the fei’s secretary general sabrina ibáñez referred to ‘equine athletes’ in her statement following the cas decision in blythe and lyle, fei, press release: cas upholds fei policy on equine provisional suspensions, 23 march 2018 <https://inside.fei. org/news/cas-upholds-fei-policy-equine-provisional-suspensions> accessed 2 april 2019. 88 fei, ‘welcome to fei clean sport’ <https://inside.fei.org/fei/cleansport> accessed 21 august 2019. 89 cas 2012/a/2807 khaled abdullaziz al eid v fédération equestre internationale/ cas 2012/a/2808 abdullah waleed sharbatly v fédération equestre internationale, para 6.24. the fédération equestre internationale speaks for the horse who has no voice and the court of arbitration http://inside.fei.org/fei/cleansport/ad-h/prohibited-list https://inside.fei.org/news/cas-upholds-fei-policy-equine-provisional-suspensions https://inside.fei.org/news/cas-upholds-fei-policy-equine-provisional-suspensions https://inside.fei.org/fei/cleansport the denning law journal 55 athletes. 90 the horse should be considered an athlete and not an inanimate object that can be viewed in the same way as ‘equipment’ used in human sports.91 strict liability a violation of the eadcmrs is a strict liability offence (article 2.1.1 of the ead rules). there is an irrebuttable presumption that provides that the ‘person responsible’ (pr), which includes the rider and support personnel in certain circumstances, is responsible for an adverse analytical finding (article 2.2–2.8). it is not necessary to demonstrate intent, fault, negligence or knowing use of a prohibited substance. the inclusion of support personnel was a result of submissions and feedback from the various national federations in the lead up to the 2010 regulations. the use or attempted use of a banned substance or a banned method is provided for under article 2.2. regarding the use of a banned substance, the pr has a personal duty along with support personnel to ensure than no prohibited substance enters the horse’s body or that any banned method is used. however, in the case of attempted use of a banned substance or of a banned method, it is necessary to show intent. success or failure of either the use or attempted use of a banned substance or method is irrelevant (article 2.2.2). in reference to control medication substances, it is a violation of the eadcmrs if the substance is present at the time of an event in absence of a valid veterinary form (article 2.1 of the ecm rules). it should not be given to the horse close to or during an event ‘unless the appropriate fei guidelines for medication authorisation have been followed’.92 the fei proffer that the ecm rules are based on a 90 jonathan glen merritt, ‘“don’t look a gift horse in the mouth”: regulating for integrity, what equestrianism can learn from thoroughbred racing’ (2017) 16 international sports law journal 198, 201–202. the introduction to the 2019 eadcm regulations states that the regulations ‘particularly as they apply to banned substances (the ead rules), have intentionally been modelled after the 2015 wada model code for human athletes’, eadcmrs (n 86) 2–3. 91 ibid 200. 92 eadcmrs, equine controlled medication rules, 1 <https://inside.fei.org/sites/ default /f iles/ ea dcm rs%20 -%20effective%201%20ja nua r y%202019%20 -%20 final%20version_clean%20-%20for%20publication_0.pdf> accessed 7 april 2019. the fei advocates a margin of safety in relation to the detection time of controlled substances and acknowledges that it is up to relevant veterinary surgeon as each horse is different; however, it stated in the case of a show jumper from saudi arabia that the safety margin should be multiplied by two, see decision of the fei tribunal dated 24 march 2017, positive controlled medication case no.: 2016/cm04, para 5.2 (c) <https://inside.fei.org/ https://inside.fei.org/sites/default/files/eadcmrs%20-%20effective%201%20january%202019%20-%20final%20version_clean%20-%20for%20publication_0.pdf https://inside.fei.org/sites/default/files/eadcmrs%20-%20effective%201%20january%202019%20-%20final%20version_clean%20-%20for%20publication_0.pdf https://inside.fei.org/sites/default/files/eadcmrs%20-%20effective%201%20january%202019%20-%20final%20version_clean%20-%20for%20publication_0.pdf https://inside.fei.org/system/files/2016-cm04%20-%20ad%20argos%20-%20final%20tribunal%20decision%20-%2024%20march%202017.pdf 56 distinctive and core characteristic of the human/horse partnership that equestrianism imbues, namely that the horse is unable to speak and it is the role of the fei to protect the horse: it is therefore the fei’s responsibility to speak on its behalf, and to ensure that, at every stage of the governance, regulation, administration and practice of the sport, the welfare of the horse is paramount … all treatments must be given in the best health and welfare interests of the horse, and not for any other reasons.93 under the ecm rules a controlled medication may be given to a horse, however, it must be ‘fully justifiable based on the medical condition of the horse’.94 if a horse is unable to compete due to injury or disease, the horse must be provided with appropriate veterinary treatment and rest (or recovery period).95 while there is some flexibility with regard to controlled medication (subject to certain conditions), a prohibited substance is a violation of the ead rules. the burden of proof that an adverse analytical finding has occurred under the ead rules is placed on the fei under article 3.1. this article further provides: where these ead rules place the burden of proof upon the persons responsible and/or member of their support personnel to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a balance of probability, except where a different standard of proof is specifically identified. the standard of proof placed on the fei is to demonstrate to the comfortable satisfaction of the hearing panel taking into account the seriousness of the alleged doping infraction. in line with the wada code, the standard of proof in all cases is greater than a mere balance of probability, but less than proof beyond a reasonable doubt. in relation to the ecm rules, the burden of proof is placed on the fei, however, the standard is that of the balance of probabilities (article 3.1).96 system /files/2016-cm04%20-%20ad%20argos%20-%20final%20tribunal%20 decision%20-%2024%20march%202017.pdf> 93 ibid. 94 ibid. 95 ibid. 96 this article further provides: ‘where these ecm rules place the burden of proof upon the persons responsible and/or member of their support personnel to rebut a presumption the fédération equestre internationale speaks for the horse who has no voice and the court of arbitration https://inside.fei.org/system/files/2016-cm04%20-%20ad%20argos%20-%20final%20tribunal%20decision%20-%2024%20march%202017.pdf https://inside.fei.org/system/files/2016-cm04%20-%20ad%20argos%20-%20final%20tribunal%20decision%20-%2024%20march%202017.pdf the denning law journal 57 in effect, the standard of liability imposed by sports governing bodies, including the fei, regarding banned substances is harsher than that in criminal law and reverses the normal burden of proof.97 consequently, the fei and the cas use a quasi-criminal principle but apply the civil standard of the balance of probabilities and not the criminal standard of beyond reasonable doubt. strict liability is a principle used in both criminal and civil law. strict liability in tort law applies, for example, to product liability, ultra hazardous activities (such as blasting), cattle trespassing on land and the possession of wild animals. in relation to ultra hazardous activities, the plaintiff, as a rule, does not need to establish negligence where the tortfeasor has engaged in an abnormally dangerous activity.98 ashworth contends that criminal law textbooks present a ‘paradox’ as these books highlight the need for the ‘mens rea’ which is a ‘moral and legal requirement for conviction … yet irish criminal law, like english criminal law, contains many offences that depart from that standard by imposing a form of strict liability’.99 the majority of strict liability offences, often referred to as public welfare offences or moral crimes, carry low prison time, attach little stigma and it is more prudent from an economic perspective to deal with the matter as expeditiously as possible.100 a number of continental european countries have created a separate category of administrative offences which attract low penalties and are dealt with efficiently and speedily.101 it is difficult to reconcile the public welfare argument to equine doping. criminal strict liability was introduced to protect factory workers following the industrial revolution. with the industrial revolution came the large-scale production of foodstuffs and criminal strict liability applied to the sale of adulterated foods and drinks and the sale of alcohol to minors.102 ascribing the term moral offence is perhaps more accurate in equine doping cases. the equine athlete is a sentient being who relies on humans to ensure their safety and or establish specified facts or circumstances, the standard of proof shall be by a balance of probability, except where a different standard of proof is specifically identified’. 97 laura donnellan, ‘strict liability in drug cases’ (2002) 9(6) sports law administration and practice 13. 98 liebman (n 47) 26. 99 andrew j ashworth, positive obligations in criminal law (a & c black, 2014), essay 4: should strict criminal liability be removed from all imprisonable offences? 100 ibid. some crimes, such as statutory rape and possession crimes, are strict liability offences even though they are serious offences. statutory rape is a moral crime and the defendant is responsible due to the age of the victim, liebman (n 47) 26. 101 ibid. 102 ibid., 30. 58 well-being. they are in an extremely vulnerable position as they are unable to verbalise and depend on their human custodians to act in their best interests. by applying a strict liability standard, the pr is responsible for any unauthorised substance that the horse ingests. parallels can be drawn with the english case from the high court of justice chancery division, gasser v stinson.103 gasser was a swiss athlete who tested positive for a banned substance. she challenged, inter alia, the validity of the testing methods and the strict liability standard. gasser contended that a malicious prankster could interfere with an athlete’s food and the athlete could innocently ingest a banned substance. while sympathetic to her plight, justice scott upheld the strict liability standard on the grounds that to hold otherwise would open the floodgates and render ineffective the drug testing policies of sporting bodies. over time wada has relaxed the strict liability standard in relation to human athletes. as the cas decision in ahlmann shows, the cas takes into account both mitigating and aggravating factors. in the ahlmann case, the fei contended that the ‘fei tribunal erred in its approach when it decided that in the presence of a substance with hypersensitising as well as pain-relieving qualities, the fei must prove more than the mere existence of the substance’.104 in effect, the fei tribunal was undermining the fei’s standard of strict liability. the cas panel rejected this contention and noted: that the fei rules put in place a system according to which the mere presence of a prohibited substance in the horse’s body constitutes a rule violation regardless of its concentration, its performance-enhancing effects or its origin, and that the pr is responsible for any such prohibited substance found to be present in the horse’s bodily samples.105 ahlmann argued that the fei strict liability standard was a breach of article 7 of the swiss cartel law; the cas panel rejected this contention and pointed to the lack of evidence or market analysis to demonstrate that the fei was abusing its dominant position.106 the cas panel found ahlmann’s argument vague and 103 sandra gasser v henry robert hunter stinson and john bryan holt (unreported, high court of justice chancery division, scott j, 15 june 1988). 104 ibid., para 33. 105 cas (n 56) para 84. 106 ibid., para 86. the fédération equestre internationale speaks for the horse who has no voice and the court of arbitration the denning law journal 59 unsupported by economic evidence.107 the cas reiterated the compatibility of strict liability with swiss law: .… that the fei disciplinary system is indeed compatible with the principles and statutes of swiss law. importantly, the swiss federal court has recently ruled that this disciplinary system, based on strict liability, is fully justified in equestrian sport by prevailing public interest, as the fight against doping tends to safeguard parity among competitors and fairness of competitions, protect the animals’ health, maintain breeding quality, combat the use of dangerous substances, preserve the integrity of the sport, and ensure that a good example is set for young people. these objectives are unanimously recognised by sports organisations and government institutions. (atf 134 iii 193, p. 203, para. 4.6.3.2.2; in the same sense, see cas 2008/a/1569 kürten v/fei paras. 7.6 7.7; cas 2008/a/1654 b. alves v/fei, paras. 5.18–5.23)108 the cas panel dismissed ahlmann’s argument that the list of prohibited substances was ‘unclear, misleading and has not been adapted to scientific and technical progresses’.109 the fact that the fei tribunal erred in finding that capsaicin was a controlled medication and not a prohibited substance is evidence that the regulations were confusing and needed to be clarified. the cas panel did not engage in any detailed discussion as to the lack of coherency in the regulations. although, following the ahlmann case, the fei, as discussed above, endeavoured to introduce a more cohesive set of anti-doping regulations. most recently, the cas upheld the fei’s application of the principle of strict liability to equine doping cases. in sheik hazza bin zayed al nahyan v fei, counsel for the appellant proposed that: the ead rules should be interpreted in a manner which allowed a rider to rebut a presumption of strict liability arising from a positive test on a horse and be held not to have committed a violation, if he or she could show that he or she had no knowledge or means of knowing of or controlling the conduct that brought about the violation.110 107 ibid. 108 ibid., 85. 109 ibid. 110 cas 2014/a/3591, 8 june 2015, para 49. the decision is not available on the cas database. it can accessed from the fei website <https://inside.fei.org/system/files/ final%20cas%20decision%20 -%20sheik%20hazza%20al%20nayan%20vs%20 fei%20-%208%20june%202015_0.pdf> accessed 4 august 2019. https://inside.fei.org/system/files/final%20cas%20decision%20-%20sheik%20hazza%20al%20nayan%20vs%20fei%20-%208%20june%202015_0.pdf https://inside.fei.org/system/files/final%20cas%20decision%20-%20sheik%20hazza%20al%20nayan%20vs%20fei%20-%208%20june%202015_0.pdf https://inside.fei.org/system/files/final%20cas%20decision%20-%20sheik%20hazza%20al%20nayan%20vs%20fei%20-%208%20june%202015_0.pdf 60 the appellant challenged the strict liability on the grounds that it was ‘an affront to morality and public policy’.111 he accepted that the standard was appropriate for human athletes who, in most situations, have autonomy over their bodies and make conscious decisions as to what they ingest.112 riders, he reasoned, ‘necessarily have less control over what goes into the horses body’.113 the appellant submitted that strict liability was disproportionate, unjustified and constituted a breach of his fundamental rights under swiss law, eu law, including eu competition law.114 the cas panel referred to a sporting body’s ‘margin of appreciation in making rules to regulate the conduct of its members’.115 the sporting body, generally, is in the best position to decide the applicable rules. the cas panel found that the strict liability standard ‘is justified in the public interest in the fight against doping in sport’.116 parallels can be drawn between the approach of the cas in equine doping cases and the gasser case. scott j in gasser referred to the judgement of megarry j in mcinnes v onslow-fane where the court set out the position of the governing bodies and the creation and development of their own rules and regulations: i think that the courts must be slow to allow any implied obligation to be fair to be used as a means of bringing before the courts for review honest decisions of bodies exercising jurisdiction over sporting and other activities which those bodies are far better fitted to judge than the courts.117 it is clear from the jurisprudence of the cas in equine doping cases that strict liability is proportionate, can be justified in the public interest, it does not breach fundamental rights and is an appropriate standard to ensure that the welfare of the equine athlete is protected. there is a moral and legal duty on the fei to safeguard its core values. in short, it is within the preserve of the fei to determine its own rules and regulations. however, these rules and regulations need to clear and there should be no ambiguity. 111 ibid., para 69. 112 ibid. 113 ibid., para 71. 114 ibid., para 144. 115 ibid., para 149. 116 ibid., para 158. 117 [1978] 1 wlr 1520, 1535. this case concerned a refusal by the british boxing board of control (bbbc) to allow an oral hearing and the furnishing of prior information as to the case against the plaintiff who had applied unsuccessfully five times for a licence. the fédération equestre internationale speaks for the horse who has no voice and the court of arbitration the denning law journal 61 should the standard of strict liability be relaxed? the fei and the cas have consistently upheld the strict liability standard on the grounds of fairness of competition and animal welfare. prs, on the other hand, have challenged it on the grounds of proportionality and an infringement of fundamental rights. the strict liability approach of the fei has been criticised on the grounds that ‘there is a fine line … between the need to protect the horse and cases where the strict liability is going too far as to be no longer concerned with clean sports’.118 thus, the line is even more pronounced when cognisance is given to the fact that the horse’s food could be contaminated or another horse’s presence in the stable results in the horse ‘picking up’ up traces of contaminated medication.119 british lawyer, jeremy dickerson contends that the bar is set too high as there are grey areas especially when it comes to contaminated foodstuffs.120 he advocates the introduction of ‘a lower fixed penalty where inadvertent contamination is proved or, better still, a sliding scale of 0–6 months’.121 a study carried out by swiss-based researchers found that, in samples taken from 28 types of horse feed, 18 tested positive for prohibited and controlled substances.122 in situations of contamination, the pr must prove, on the balance of probabilities, that the inadvertently ingested substance was the result of contamination and if this can be proved, the period of ineligibility may be eliminated or reduced under article 10.4 of the ecm rules.123 118 ester herlin-karnell, ‘eu sports law and the equestrian world: a galloping area of increasing importance’ (2013) 13 international sports law journal 168. 119 ibid. 120 neil clarkson, ‘bar set too high in fei doping cases, lawyer believes’ (horse talk, 9 september. 2014) <https://www.horsetalk.co.nz/2014/09/09/bar-set-too-high-fei-dopingcases-lawyer-believes/?share=email> accessed 30 jul 2019. 121 ibid. 122 the findings were published online in german, with the abstract in english (c herholz, n zink, h laska, m gumpendobler, charles trolliet and s probst, ‘dopingrelevante substanzen in futtermitteln für pferde’ (2017) 159(4) schweiz arch tierheilkd 231, doi: <https://doi.org/10.17236/sat00112> accessed 21 august 2019. the findings were translated into english by laura donnellan and a summary of the study can be found at laura donnellan, ‘equestrianism: swiss researchers find 64% of horse feed contains prohibited or controlled substances!’ (sportsandtaxation.com, 29 august 2017) <https://www.sportsandtaxation.com/2017/08/equestrianism-swiss-researchers-find-64of-horse-feed-contains-prohibited-or-controlled-substances> accessed 7 aug. 2019. 123 in the decision of the fei tribunal dated 20 february 2014 positive controlled medication case no.: 2013/ft02 honky tonk whiz, the pr could not prove that the https://www.horsetalk.co.nz/2014/09/09/bar-set-too-high-fei-dopingcases-lawyer-believes/?share=email https://www.horsetalk.co.nz/2014/09/09/bar-set-too-high-fei-dopingcases-lawyer-believes/?share=email https://doi.org/10.17236/sat00112 https://www.sportsandtaxation.com/2017/08/equestrianism-swiss-researchers-find-64-of-horse-feed-contains-prohibited-or-controlled-substances https://www.sportsandtaxation.com/2017/08/equestrianism-swiss-researchers-find-64-of-horse-feed-contains-prohibited-or-controlled-substances 62 merritt raises an interesting argument. he posits that the decisions of the fei tribunal and the cas which have continually endorsed the strict liability standard is ‘unconscionable’ and ‘reverse burdens should be applied in equine cases because the infraction happens in the body of a non-autonomous nonhuman athlete but the sanction is applied to the mind of an athlete of a different species’.124 the bha’s anti-doping rules are based on the underlying principle of strict liability, which has been: adopted by all signatories to article 6 of the international federation of horseracing authorities’ (ifha) international agreement. equine antidoping rules are in place to provide a level playing field for all competitors, and to ensure that substances which may have the capacity to effect performance or impact on a horse’s welfare are not administered to horses involved in our sport.125 the argument that the regulatory bodies of horseracing and equestrian sport use strict liability and thus strict liability is the norm is a weak argument on its own. the position of the horse can be compared to that of a minor, albeit a human autonomous athlete. the pr is in a guardian position and it is up to them to ensure that the horse does not ingest a banned substance and follows the regulations with regard to controlled medications. it is up to the pr to ensure that a product does not contain any prohibited substance by seeking veterinary advice, looking up the prohibited substance database on the fei website or downloading the fei app.126 in the current state of affairs, the continued application of strict liability should remain the underlying principle in order to protect equine welfare. if the fei were to move away from the principle, the eadcmrs would be undermined. as the horse is unable to speak for themselves, there should be a higher duty of care placed on the pr to ensure that the horse does not ingest a banned or controlled positive test for controlled medication was the result of contamination, <https://inside.fei. org /syst em /f i les /ca se _ 2 013_ f t 0 2 _ hon k y_ton k _w h i z _ fi na l _tr ibu na l _ decision_20_february_2014.pdf> accessed 9 august 2019. 124 merritt (n 91) 281. 125 bha press release, ‘bha seeks rule change on anti-doping penalties’ (23 november 2017) <https://www.britishhorseracing.com/press_releases/bha-seeks-rule-change-antidoping-penalties> accessed 8 august 2019. 126 fei, ‘clean sport for horses – fei prohibited substances list’ <https://inside.fei.org/ fei/cleansport/ad-h/prohibited-list> accessed 3 august 2019. information on the mobile apps can be found at: fei, ‘mobile apps’, <https://inside.fei.org/fei/cleansport/horses/ mobile-apps> accessed 21 august 2019. the fédération equestre internationale speaks for the horse who has no voice and the court of arbitration https://inside.fei.org/system/files/case_2013_ft02_honky_tonk_whiz_final_tribunal_decision_20_february_2014.pdf https://inside.fei.org/system/files/case_2013_ft02_honky_tonk_whiz_final_tribunal_decision_20_february_2014.pdf https://inside.fei.org/system/files/case_2013_ft02_honky_tonk_whiz_final_tribunal_decision_20_february_2014.pdf https://www.britishhorseracing.com/press_releases/bha-seeks-rule-change-anti-doping-penalties https://www.britishhorseracing.com/press_releases/bha-seeks-rule-change-anti-doping-penalties https://inside.fei.org/fei/cleansport/ad-h/prohibited-list https://inside.fei.org/fei/cleansport/ad-h/prohibited-list https://inside.fei.org/fei/cleansport/horses/mobile-apps https://inside.fei.org/fei/cleansport/horses/mobile-apps the denning law journal 63 substance. the fei tribunal and the cas take into account mitigating and aggravating factors when it comes to the sanctions imposed, thus there is some flexibility without moving away from strict liability. dickerson’s suggestion of a sliding scale of penalties in situations involving contaminated food is welcome. the swiss based research was undertaken in response to three high profile failed drug tests in 2015, involving two swiss jumping riders whose horses tested positive for banned and controlled substances.127 the two riders, guerdat and bichsel, were subsequently cleared when it was found that the failed tests were attributed to poppy seed contamination of their horses’ food. at an event in france in may 2015, guerdat’s mount, nino des buisonnets, tested positive for the banned substances of codeine and oripavine, and morphine, a controlled substance. at the same event, guerdat had ridden nasa, whose sample yielded an adverse analytical finding for codeine and morphine. nasa’s sample also contained trace amounts of oripavine; however, the amount found was not of the requisite level for a doping infraction to have been committed. in july 2015 guerdat and bichsel were informed by the fei that their respective horses had tested positive for banned and controlled substances. the fei informed the riders that the samples tested at the fei-accredited lgc newmarket road laboratory in cambridgeshire, uk, had been found to contain prohibited substances under article 2.1 of the equine anti-doping regulations.128 both riders had their suspensions lifted as the fei tribunal was satisfied that the positive tests were the result of contaminated horse feed.129 however, the two-month suspension placed on the horses was upheld on the grounds of animal welfare, which is an established policy of the fei, as will be discussed below. both riders appealed the two-month suspension of their horses; however, the fei tribunal dismissed the appeals, with leave to appeal to the court of arbitration for sport (cas) within 21 days of the decision. the riders also had the results achieved at the events quashed, including the forfeiture of medals, points and prizes. 127 donnellan (n 124). 128 alessandra bichsel/sui, ‘decision of the fei tribunal’ (25 september 2015) <https:// inside.fei.org/system/files/2015-bs04%20-%20charivari%20kg%20-%20fei%20 tribunal%20decision%20-%2025%20september%202015.pdf>and steve guerdat/sui, ‘decision of the fei tribunal’ (18 september 2015) <http://inside.fei.org/system/files/ case%202015-bs02%20-%20nasa%20-%202015-bs03%20-%20nino%20des%20 bu i s s o n n e t s %2 0 %2 0 f i n a l%2 0 tr i b u n a l%2 0 d e c i s i o n%2 0 %2 018%2 0 september%202015.pdf> accessed 10 august 2019. 129 fei, ‘steve guerdat and alessandra bichsel cleared of wrongdoing by fei’, 28 september 2015, <https://inside.fei.org/news/steve-guerdat-and-alessandra-bichselcleared-wrongdoing-fei> accessed 23 august 2019. https://inside.fei.org/system/files/2015-bs04%20-%20charivari%20kg%20-%20fei%20tribunal%20decision%20-%2025%20september%202015.pdf https://inside.fei.org/system/files/2015-bs04%20-%20charivari%20kg%20-%20fei%20tribunal%20decision%20-%2025%20september%202015.pdf https://inside.fei.org/system/files/2015-bs04%20-%20charivari%20kg%20-%20fei%20tribunal%20decision%20-%2025%20september%202015.pdf http://inside.fei.org/system/files/case%202015-bs02%20-%20nasa%20-%202015-bs03%20-%20nino%20des%20buissonnets%20-%20final%20tribunal%20decision%20-%2018%20september%202015.pdf http://inside.fei.org/system/files/case%202015-bs02%20-%20nasa%20-%202015-bs03%20-%20nino%20des%20buissonnets%20-%20final%20tribunal%20decision%20-%2018%20september%202015.pdf http://inside.fei.org/system/files/case%202015-bs02%20-%20nasa%20-%202015-bs03%20-%20nino%20des%20buissonnets%20-%20final%20tribunal%20decision%20-%2018%20september%202015.pdf http://inside.fei.org/system/files/case%202015-bs02%20-%20nasa%20-%202015-bs03%20-%20nino%20des%20buissonnets%20-%20final%20tribunal%20decision%20-%2018%20september%202015.pdf https://inside.fei.org/news/steve-guerdat-and-alessandra-bichselcleared-wrongdoing-fei https://inside.fei.org/news/steve-guerdat-and-alessandra-bichselcleared-wrongdoing-fei 64 the study carried out by the swiss scientists examined domestically produced food as well as imported horse food, with 16 samples taken from food manufactured outside switzerland and 12 from switzerland.130 the commercial feed was found to have traces of nine banned and controlled substances under the fei’s eadcmrs. all nine substances originate from plants, trees, leaves or seeds that are found in nature. the researchers interestingly found that poppy seeds, which were harvested using machinery, had a higher concentration of morphine than poppy seeds processed by hand.131 the study concluded that, even with the most careful and up-to-date methods of processing, horse feed can be easily contaminated by prohibited and controlled substances. in all the samples analysed, the amount was not of a level that would adversely affect a horse’s health. while the study has demonstrated the prevalence of contaminated horse feed, the fei has an established policy of suspending the horse for two-months on the grounds of animal welfare. going forward, any future incidences of contaminated horse feed will most likely exonerate the rider with the exception of their forfeiting qualifications/records/medals/prizes; the welfare of the horse will remain a concern for the fei. the requirement of a more rigorous testing of food to be carried out before a horse is fed would be both costly and arduous, given that feed, such as hay, is a staple of the horse’s diet. the study did not state what other countries were involved in the analysis; it is not clear whether they were eu-based companies or outside the eu or a mixture of both. the result of 64% of the samples containing prohibited and controlled substances is worrying; however, dr herholz, one of the researchers, contends that the amounts were so minute that, in the case of morphine found in one oat sample, ‘in order for the horse to have a visibly bodily reaction, he would need to consume 2,083 kilograms (more than 4,500 pounds) of those oat grains’.132 in the study, the researchers contend that a 500 kg horse would need to ingest 250 mg of morphine in order for it to have any effect.133 with the effect on the horse aside, the strict liability nature of equine doping means that an adverse analytical finding constitutes a doping infraction and it is conceivable that contaminated hay could result in a two-month suspension of a horse, as well as the consequences for the rider in relation to forfeiture of results. in light of the findings of the study, contaminated food is an area in which the 130 herholz et al. (n 123) 232. 131 ibid., 233–234. 132 christa lesté-lasserre, ‘study evaluates banned, controlled substances in horse feed’ (the horse, 15 august 2017) <http://www.thehorse.com/articles/39549/studyevaluates-banned-controlled-substances-in-horse-feed> accessed 12 august 2019. 133 herholz et al (n 123) 234. the fédération equestre internationale speaks for the horse who has no voice and the court of arbitration http://www.thehorse.com/articles/39549/study-evaluates-banned-controlled-substances-in-horse-feed http://www.thehorse.com/articles/39549/study-evaluates-banned-controlled-substances-in-horse-feed the denning law journal 65 reversal of burdens could be used and thus a move away from the harshness of strict liability. along with strict liability, the fei provides for two-month provisional suspension of horses in order to ensure fairness of competition and equine welfare. the two-month provisional equine suspension was the subject of an appeal to the cas, wherein the cas upheld its validity and has ensured, for the foreseeable future that it is immune from further challenge. it is to this issue the article now turns. two-month provisional suspensions for equine athletes the two-month provisional suspension for equine athletes is not defined in the eadcmrs. there is no information on the fei website. the cas in blythe and lyle refer to a 2012 resolution providing for the two-month equine suspension, which was evidenced by the minutes of a fei executive board meeting dated 5–6 may 2012.134 outside of this reference, there is no information on the procedural history of the two-month equine suspension. it is clear from the fei’s annual report 2012, that two-month provisional equine suspensions were recorded for the first time.135 subsequent reports refer to the two-month provisional equine suspensions.136 according to the regulations, when an adverse analytical finding relating to a banned or controlled substance is discovered, the pr is automatically provisionally suspended from the date of notification from the fei. the horse is suspended for two-months. provisional suspensions are found under article 7.4 and are placed on the pr pending a full hearing.137 where the pr requests the lifting of the provisional suspension, the fei tribunal will maintain the provisional suspension unless the pr establishes to the comfortable satisfaction of the fei tribunal that (article 7.4.4): i. the allegation of an ead violation has no reasonable prospect of being upheld due to a material defect in the evidence on which the allegation is based; or 134 cas 2017/a/5114 (n 13). 135 fei, ‘annual report 2012’, 72, <https://inside.fei.org/system/files/fei%202012%20 ar%20spreads.pdf> accessed 8 april 2019: ‘in addition, all horses which tested positive for banned substances were provisionally suspended for a period of two (2) months, starting on the date of the notification letter’. 136 fei annual reports 2004 to 2017 are available at <https://inside.fei.org/fei/about-fei/ publications/fei-annual-report>accessed 8 april 2019. 137 for more details on the requirements and procedures, see (n 80) 7.4.1–7.4.7. https://inside.fei.org/system/files/fei%202012%20ar%20spreads.pdf https://inside.fei.org/system/files/fei%202012%20ar%20spreads.pdf https://inside.fei.org/fei/about-fei/publications/fei-annual-report https://inside.fei.org/fei/about-fei/publications/fei-annual-report 66 ii. the pr can demonstrate that the evidence will show that s/he bears no fault or negligence for the violation of the rule that is alleged to have been committed, so that any period of ineligibility that might otherwise be imposed for such a violation is likely to be completely eliminated by application of article 10.4 (elimination of the period of ineligibility where there is no fault or negligence) or article 10.5 applies (elimination of the period of ineligibility where there is no fault or negligence) and the pr has already been provisionally suspended for a period of time that warrants the lifting of the provisional suspension pending a final decision of the fei tribunal; or138 iii. exceptional circumstances exist that make it clearly unfair, taking into account all of the circumstances of the case, to impose a provisional suspension prior to the final hearing of the fei tribunal. this ground is to be construed narrowly, and applied only in truly exceptional circumstances. for example, the fact that the provisional suspension would prevent the person or horse competing in a particular competition or event shall not qualify as exceptional circumstances for these purposes.139 according to the ead rules, the fei may also request the lifting of the provisional suspension. as discussed, the fei adopts the strict liability standard, the exceptions show that there is flexibility and discretion when it comes to lifting provisional suspensions. the 2019 ead rules provide for a reduction of sanctions for specified substances and contaminated products (article 10.5.1). the fei insists that specified substances are not to be viewed as less important or less dangerous than other prohibited substances. it recognises that a horse could ingest a substance through contaminated food. if a horse tests positive for a specified substance, the application of a provisional suspension is not automatic.140 article 10.4 (elimination or the period of ineligibility where there is no fault or negligence) may also be used in cases involving specified substances, however, it will not apply in situations where: a. the presence of the banned substance in a sample came from a mislabelled or contaminated supplement. persons responsible are responsible for what their 138 the 2019 rules insert the following after fei tribunal: ‘this article 7.4.4(ii) does not apply to an application to lift a provisional suspension imposed on a horse’. 139 article 8 provides for a right to a fair hearing. 140 press release, ‘fei tribunal lifts provisional suspensions’ (10 may 2017) <http:// inside.fei.org/news/fei-tribunal-lifts-provisional-suspensions> accessed 6 april 2019. the fédération equestre internationale speaks for the horse who has no voice and the court of arbitration http://inside.fei.org/news/fei-tribunal-lifts-provisional-suspensions http://inside.fei.org/news/fei-tribunal-lifts-provisional-suspensions the denning law journal 67 horses ingest and have been warned about the possibility of supplement contamination. b. the administration of a banned substance by the person responsible’ s veterinary personnel or member of the support personnel without disclosure to the person responsible. persons responsible are responsible for their choice of veterinary personnel and support personnel and for advising veterinary personnel and support personnel that horses cannot be given any banned substance at any time. article 10.5 on the reduction of the period of ineligibility based on no significant fault or negligence can also be used in cases involving specified substances. at a minimum, the pr faces a reprimand but no period of ineligibility and a maximum of a two-year period of ineligibility depending on the degree of fault. the same penalties apply under article 10.5.1 on the reduction of sanctions for specified substances and contaminated products. the fei rules provide for recourse to the court of arbitration for sport (article 12.3) which provides that an appeal may be made within 21 days of the appealing party being notified of the decision of the hearing panel. the lifting of provisional equine suspensions on 10 may 2017, the fei announced in a press release that it had lifted the provisional suspensions of eleven athletes: two jumping, two dressage and seven endurance and three endurance trainers. two international showjumping athletes, marlon modolo zanotelli from brazil and henry turrell of great britain had their suspensions lifted on 27 april 2017. both competitors’ horses tested positive for the banned substance sparteine.141 zanotelli and turrell were competing in separate events in vilamoura, portugal which took place from 20 to 26 february 2017.142 sparteine is classified as an anti-arrhythmic and ‘is not used therapeutically in horses’.143 sparteine is derived from the lupin flower, and of particular 141 it is classified as a banned substance under the 2019 epsl (n 77). 142 zanotelli was notified of his provisional suspension on 5 april 2017, fei press release, ‘prohibited substance cases under fei anti-doping rules’, 6 april 2017 <https://inside. fei.org/news/prohibited-substance-cases-under-fei-anti-doping-rules> accessed 6 april 2019. turrell was notified of his provisional suspension on 18 april 2017, fei press release, ‘prohibited substance cases under fei anti-doping rules’, 26 april 2017 <https://inside.fei.org/news/prohibited-substance-cases-under-fei-anti-doping-rules-0> accessed 6 april 2019. 143 ‘two more riders suspended in prohibited substance cases under the fei https://inside.fei.org/news/prohibited-substance-cases-under-fei-anti-doping-rules <https://inside.fei.org/news/prohibited-substance-cases-under-fei-anti-doping-rules https://inside.fei.org/news/prohibited-substance-cases-under-fei-anti-doping-rules-0 68 importance to this case was the fact that the lupin flower is prevalent in portugal where the event took place. the fei tribunal was influenced by both the scientific evidence adduced by the two competitors that food contamination was the reason behind the adverse analytical finding and the recommendation by the fei equine prohibited substances list expert group, who annually review the epsl, that sparteine be placed on the controlled medication and specific substance list by january 2018.144 in february 2017, it was announced that seven horses tested positive at united arab emirates (uae) endurance events which took place at the al wartha venue in abu dhabi between the end of november 2016 and january 2017. the horses were tested at four separate events.145 four prohibited substances were found in the samples of the seven horses.146 in the wake of the announcement, the fei secretary general sabrina ibáñez noted that it was the first time that the fei had suspended the trainers at the same time as the athletes and observed that when there are a number of breaches by the same trainer it demonstrates that there is ‘something wrong with the stable management’.147 the fei secretary general stated: we take all breaches of the fei anti-doping regulations extremely seriously and these latest positives demonstrate clearly that those using prohibited substances will be caught … suspending the trainers immediately, rather than anti-doping rules’ (world of showjumping, 25 april 2017) <http://www. worldofshowjumping.com /en / news/ two -more-r iders-suspended-in-proh ibitedsubstance-cases-under-fei-anti-doping-rules.html> accessed 6 april 2019. this article also refers to a south african rider whose horse tested positive for paracetamol, also a banned substance. 144 fei, ‘fei equine prohibited substances list expert group’ <https://inside.fei.org/fei/ your-role/veterinarians/suggest-a-change>accessed 21 august 2019. 145 the four athletes and four trainers were informed of their provisional suspensions on 30 january 2017. the horses were suspended for two months from the same date. fei press release, ‘prohibited substance cases under fei anti-doping rules’, 3 february 2017 <http://inside.fei.org/news/new-prohibited-substances-cases-under-fei-anti-dopingrules> accessed 7 april 2019. 146 ibid. the press release stated that: ‘all seven horses have tested positive to the same four prohibited substances, the stimulant caffeine and its metabolites theophylline, theobromine and paraxanthine. equally, theophylline, used for the treatment of asthma and various respiratory diseases, can be metabolised to caffeine. one of the horses also tested positive to the corticosteroid flumetasone, which is used in the treatment of skin disorders’. 147 ibid. the fédération equestre internationale speaks for the horse who has no voice and the court of arbitration http://www.worldofshowjumping.com/en/news/two-more-riders-suspended-in-prohibited-substance-cases-under-fei-anti-doping-rules.html http://www.worldofshowjumping.com/en/news/two-more-riders-suspended-in-prohibited-substance-cases-under-fei-anti-doping-rules.html http://www.worldofshowjumping.com/en/news/two-more-riders-suspended-in-prohibited-substance-cases-under-fei-anti-doping-rules.html https://inside.fei.org/fei/your-role/veterinarians/suggest-a-change https://inside.fei.org/fei/your-role/veterinarians/suggest-a-change http://inside.fei.org/news/new-prohibited-substances-cases-under-fei-anti-doping-rules http://inside.fei.org/news/new-prohibited-substances-cases-under-fei-anti-doping-rules the denning law journal 69 waiting until the athlete has been prosecuted, confirms that the fei will not tolerate any attempts to enhance the performance of the horse.148 interim decision of the court of arbitration for sport included in the eleven provisional suspensions were two us dressage athletes adrienne lyle, an olympic rider and kaitlin blythe, an under-25 competitor. both athletes were provisionally suspended on 5 april 2017.149 their horses tested positive for the banned substance ractopamine after samples were taken during week 5 of the adequan global dressage festival that took place between december 2016 and february 2017 in wellington, florida. ractopamine is a beta adrenoceptor agonist which was recently used in tests involving pigs and was found to ‘improve growth performance and carcass composition in pigs’.150 both positive tests were recorded during week 5 of the festival. however, it was reported that the substance is widely added to horse feed in america.151 the athletes argued that the substance fell within the definition of specified substance, as outlined above. the united states equestrian federation (us equestrian) on its website commended the makers of the drug, cargill, for its admission that the positive test resulted from a contaminated nutritional supplement.152 us equestrian acknowledged that the substance, which is legal in the us, is banned in over 160 countries, including the 28 members of the european union, china and russia 148 ibid. 149 on 27 april 2017, urine and blood samples from the horses were tested to see if any trace of ractopamine remained in the horses’ systems. the maddy equine analytical chemistry laboratory at the university of california, davis, found no presence of the substance in either horses’ samples. 150 this can be found on the search database on the fei website: <http:// prohibitedsubstancesdatabase.feicleansport.org/search-results> accessed 7 april 2019. see also kenneth j braddick, ‘usa olympic rider adrienne lyle, under-25 rider kaitlin blythe provisionally suspended for prohibited substance found in horses’ (dressagenews, 6 april 2017) <http://www.dressage-news.com/2017/04/06/usa-olympic-rideradrienne-lyle-under-25-rider-kaitlin-blythe-provisionally-suspended-for-prohibitedsubstance-found-in-horses> accessed 7 april 2019. 151 ibid. 152 us equestrian communications department, ‘cargill acknowledges contamination of feed supplement caused positive test results’ (us equestrian, 9 may 2017) <https:// www.usef.org/media /press-releases/cargill-acknowledges-contamination-of-feedsupplement-caused-positive-test-results> accessed 7 april 2019. http://prohibitedsubstancesdatabase.feicleansport.org/search-results http://prohibitedsubstancesdatabase.feicleansport.org/search-results http://www.dressage-news.com/2017/04/06/usa-olympic-rideradrienne-lyle-under-25-rider-kaitlin-blythe-provisionally-suspended-for-prohibitedsubstance-found-in-horses http://www.dressage-news.com/2017/04/06/usa-olympic-rideradrienne-lyle-under-25-rider-kaitlin-blythe-provisionally-suspended-for-prohibitedsubstance-found-in-horses http://www.dressage-news.com/2017/04/06/usa-olympic-rideradrienne-lyle-under-25-rider-kaitlin-blythe-provisionally-suspended-for-prohibitedsubstance-found-in-horses https://www.usef.org/media/press-releases/cargill-acknowledges-contamination-of-feedsupplement-caused-positive-test-results https://www.usef.org/media/press-releases/cargill-acknowledges-contamination-of-feedsupplement-caused-positive-test-results https://www.usef.org/media/press-releases/cargill-acknowledges-contamination-of-feedsupplement-caused-positive-test-results 70 ‘due to its controversial and adverse effects in cattle and swine’.153 cargill announced the following on its website: through our investigation, we identified that progressive nutrition® soothing pink™, a nutritional supplement used to prevent gastric upset, contained an ingredient that included trace amounts of ractopamine. upon learning of this trace finding, we immediately withdrew our progressive nutrition® soothing pink™ product from the market. at this time, we have identified and isolated the ingredient that was the source of the contamination and we have completely stopped use of the ingredient in all products.154 the two athletes had their provisional suspensions lifted on 28 april 2017; however, the fei tribunal upheld the two-month suspension of their horses, horizon and don principe, on the grounds of animal welfare and in order to ensure a level playing field. both athletes challenged the decision of the fei tribunal before the cas. given the urgency of the matter, written submissions were furnished, and an interim decision was made on foot of the documentation supplied. there was no oral hearing and there no mention of the interim order on the cas website. a spokesperson for the cas was quoted by horse and hound as stating: this is a temporary decision, which is made pending the resolution of the cas arbitration . . . these interim decisions are not published by our tribunal but the final decision will be . . . given the urgency, no hearing took place but the parties concerned were able to express their position in writing.155 the cas interim decision was disappointing. the decision of the cas to grant interim relief seemed at odds with the fei’s core tenet of speaking for the horse who has no voice. the equine athletes were permitted to compete at the us dressage festival of champions from 18 to 21 of may, thus the suspensions of horizon and don principe were lifted in time for the event, which undermined the 153 ibid. it is used in the united states for building muscle and size in pigs, turkeys and cattle. 154 statement from cargill, ‘trace amounts of ractopamine found in soothing pink™ product’, 3 may 2017 <http://store.nancoecipn.com/news.aspx> accessed 7 april 2019. 155 lucy elder, ‘dressage riders’ suspensions lifted: contamination blamed for positive drug tests’ (horse and hound, 11 may 2017) <http://www.horseandhound.co.uk/news/ kaitlin-blythe-adrienne-lyle-ractopamine-contamination-620471#sptuf1gp8p8iki9i.99> accessed 6 april 2019. the fédération equestre internationale speaks for the horse who has no voice and the court of arbitration http://www.horseandhound.co.uk/news/kaitlin-blythe-adrienne-lyle-ractopamine-contamination-620471 http://www.horseandhound.co.uk/news/kaitlin-blythe-adrienne-lyle-ractopamine-contamination-620471 http://store.nancoecipn.com/news.aspx the denning law journal 71 decision of the fei tribunal. the fei explicitly states in its epsl that ractopamine has ‘no legitimate use’ and the fact that 160 countries have banned the substance would suggest that it is a hazard to the health of horses. court of arbitration for sport: validity of provisional suspensions in november 2017, a full hearing took place before the cas panel, which included michael beloff qc as president of the panel. the appellants proffered that article 7.4.4 (iii) (as outlined above) applied as their situation was an ‘exceptional circumstance’ for the following reasons: the low level of ractopamine detected, by the time the decision was appealed; there was no trace of ractopamine in the horses’ systems; the appellants had been cooperative in finding the source of the ractopamine and responded to issues raised by the fei; there was no scientific evidence to support that a horse competing during the two-month suspension would compromise animal welfare nor could it be shown that competing at the time (during the two-month suspension) would have yielded a competitive advantage by the earlier ingestion of ractopamine; veterinary experts found no adverse effects on the horses in the first five months of 2017 and the level of support provided by the us dressage committee to the appellants.156 the appellants further contended that the two-month suspension imposed by the fei was not properly authorised and was inconsistent with the eads. the fei responded by holding that the two-month provisional suspension is within the eads, the appellants had not shown that the ‘exceptional circumstances’ of article 7.4.4 (iii) applied and that the imposition of provisional suspensions was legal, justified, proportionate and fundamental in protecting the welfare of the horse and ensuring a level playing field.157 the fei argued that the appellants could not rely on article 7.4.4 (i). the cas panel conducted the hearing de novo thus it would decide the appeal on the evidence before it.158 it examined the reasons behind the fei’s two-month suspension: animal welfare, ensuring a level playing field, deterrence and damage to the image of the sport if previously doped horses could compete.159 the panel contended that first ground was sufficient in itself, as was the objective of ensuring a level playing field. however, it was not convinced with regard to the perceived deterrent nature of provisional suspensions and the last ground, damage to the image of the sport, was considered the weakest as the horses would compete again 156 cas 2017/a/5114 (n 13) para 43. 157 ibid., para 45. 158 ibid., para 58. 159 ibid., para 64. 72 sometime in the future.160 the panel distinguished the position of the horse with that of a human competitor as it stated: ‘horses, unlike humans, cannot themselves take care to avoid the ingestion of prohibited substances. the welfare and health argument has a proper and particular resonance in their case’.161 the panel accepted that a one-size fits all approach as opposed to a bespoke solution was required given the range of equine sports and the different prohibited substances.162 the fei, in its endeavours to protect horses, was of the view that the ‘blanket’ two-month suspension was both legitimate and proportionate.163 however, the panel accepted that there could be more transparency with the rule, in that it could be in published form.164 it rejected the argument that the publicity of the rules was insufficient. had there been a published rule, then its application would still not have adjusted their behaviour in the lead up to the adverse analytical finding and they were at all material times aware of their duty to ensure that the horses did not ingest a prohibited substance. the appellants were informed of the two-month equine suspension once the adverse analytical finding was communicated to them; thus it ‘provided a target against which they could direct their forensic fire’.165 in any case, the fei had passed a resolution in 2012 providing for the two-month suspension of the horse, which was evidenced by the minutes of a fei executive board meeting dated 5–6 may 2012.166 the panel referred to the fei bureau as the official body of the fei, which according to the fei statutes is ‘responsible for the general direction of the fei and for all relevant matters not consigned to the general assembly’.167 article 20.1 of the fei statutes provides that the fei board’s (formerly bureau) role is ‘[t]o approve the sport rules (a) that 160 ibid., para 65. 161 ibid., para 68. 162 ibid., para 69. at para 88 the panel opined that ‘any such potential unfairness is a price properly to be paid in the overall interests of equine sport’. 163 ibid. 164 ibid., para 71. 165 ibid. 166 ibid. 167 ibid., para 72. the fei bureau was renamed the fei board (chapter iv of the fei statutes, 24th edition, effective 20 november 2018) <https://inside.fei.org/fei/about-fei/feiboard> accessed 8 april 2019. the board convenes two in-person board meetings per year. the main decisions of the fei board from 18 to 19 june 2018 may be accessed here: <https://inside.fei.org/system/files/main%20decisions%20bureau%20june%202018_ final_0.pdf> accessed 8 april 2019. the fei general assembly’s role is to act ‘as a platform for discussions and voting on the major decisions of the fei and the governance of the sport. it is held in a different location every year’, fei, ‘fei general assembly’ <https://inside.fei.org/fei/about-fei/fei-general-assembly> accessed 8 april 2019. the fédération equestre internationale speaks for the horse who has no voice and the court of arbitration https://inside.fei.org/system/files/main%20decisions%20bureau%20june%202018_final_0.pdf https://inside.fei.org/system/files/main%20decisions%20bureau%20june%202018_final_0.pdf https://inside.fei.org/fei/about-fei/fei-board https://inside.fei.org/fei/about-fei/fei-board https://inside.fei.org/fei/about-fei/fei-general-assembly the denning law journal 73 cannot await the next general assembly’.168 article 9.1 of the fei statutes states that the ‘general assembly of the national federations is the supreme authority of the fei’.169 article 10 lists the powers of the general assembly, which includes the approval of the fei rules and regulations.170 in referring to the ‘constitutional context’, the panel found that the minutes of the fei executive board dated 5–6 march 2012 explicitly stated that the fei tribunal had passed a resolution at its own meeting in 2012 that provided for the two-month equine provisional suspension.171 the rule was also referred to in the meeting minutes of the fei tribunal annual meeting, which took place on 13 february 2016.172 the minutes, as cited by the panel, stated that the two-month provisional equine suspension was introduced on the grounds of equine welfare and to maintain a level playing field and that ‘[t]he fei tribunal decision has been applied consistently since 2012’.173 the panel gave cognisance to the fact that the two-month suspension is not absolute as article 7.4.4 (i), (ii) and (iii) provide for the lifting of the suspension to the comfortable satisfaction of the fei tribunal.174 in reference to (i), the panel noted that this did not apply as the appellants had not challenged the adverse analytical finding. in relation to (ii), the panel noted that the lifting of suspensions refers to the pr, and not the horse. the panel recommended that this section be revisited in order to prevent further argument especially considering that athletes have their own doping rules, the wada rules. with regard to (iii), there were no exceptional circumstances, a provision that must be construed narrowly. the panel was not satisfied that the substance, although no longer in the horses’ systems, did not mean that there were no residual effects.175 the panel could not fault the testing methods used in laboratory.176 while the cas dismissed the dressage riders’ appeal, it decided that the results achieved would stand. the decision was welcomed by the fei, as its secretary general sabrina ibáñez stated: we are delighted to have received such a clear endorsement of the fei’s policy on equine provisional suspensions from the court of arbitration for sport … 168 fei statutes (n 168). 169 ibid. 170 ibid. 171 cas 2017/a/5114 (n 13) para 73. 172 ibid., 74. 173 ibid., 75. 174 ibid., paras 80–83. 175 ibid., para 91. 176 ibid., para 93. 74 horse welfare is always top of the agenda for the fei and the mandatory two-month provisional suspension of horses in banned substance cases is an important measure to ensure that the welfare of our equine athletes is not compromised.)177 fei tribunal final decisions blythe and lyle’s appeals were partially upheld by the cas as the provisional suspensions imposed on the two horses, horizon and don principe imposed by the fei tribunal were terminated, however, the fei’s policy of imposing a two-month suspension was declared valid. the matter was referred back to the fei tribunal.178 the fei tribunal issued two final decisions in december 2018, one in relation to blythe and the other in relation to lyle.179 the fei tribunal accepted that the athletes bore no significant fault or negligence. the athletes and the fei reached an agreement on 12 november 2018. under the terms of the agreement, the athletes accepted that the presence of a banned substance was a breach of article 2.1 of the ead rules.180 the period of ineligibility was three months, beginning on 5 april 2017. as the horses were banned for one-month and not the standard two-months, the results for both the equine and human athlete from 5 april 2017 to 4 july 2017 were retrospectively disqualified.181 the prs were each fined 3,000 swiss francs and ordered to pay costs for the testing of sample b. the agreement provided for appeal to the cas; however, it would seem that neither lyle nor blythe appealed the fei tribunal’s final decisions.182 the fei tribunal referred to paragraph 89 of the cas decision where the panel stated that it: cannot assume, as was contended, that the appellants were faultless in respect of such ingestion. in any event, that is a matter which will fall to be decided at the future hearing on the merits of this dispute, which will no doubt consider all the circumstances including the notorious fact that warnings about the possible contamination of supplements are well publicised.183 177 press release (n 143). 178 decision of the fei tribunal in blythe (n 39) and decision of the fei tribunal in lyle (n 39). 179 ibid. 180 ibid., 5.2 (1). 181 ibid., 5.2 (4). 182 ibid., 8.7 (2). the riders had 21 days to appeal the fei tribunal decision. 183 ibid., 5.4. the fédération equestre internationale speaks for the horse who has no voice and the court of arbitration the denning law journal 75 the fei tribunal ratified the agreement between the fei and lyle and the fei and blythe. thus, this brought to an end the protracted dispute between the two dressage riders and the fei. the decision has wider implications as the cas deemed the two-month provisional suspension to be valid and in accordance with the rules and regulations of the fei. conclusion the strict liability principle underpins the fei’s commitment to ensuring fairness in competition and equine welfare. this is augmented by the two-month provisional equine suspensions. the strict liability principle, while deemed ‘unconscionable’ and a breach of fundamental rights by academic commentators and riders alike, is here to stay. the horse is unable to verbalise and depends on the human agents to protect and safeguard it. the strict liability standard ensures that the rules surrounding prohibited substances and controlled medications are taken seriously. a departure from the strict liability standard could render the eadcmrs ineffective or inoperable. the pr is in a guardianship position and it is their responsibility to ensure that enquiries are made as to the ingredients and properties of substances. while the non-autonomous position of the horse has been used a reason for a reversal of burdens, it is submitted that this makes the horse all the more vulnerable and in need of greater protection. the fei recognises that there can be an innocent ingestion of a prohibited substance through contamination. in these cases, a more relaxed and flexible approach has been embraced by the fei. a move away from strict liability in such instances and the adoption of a scale of offences or a reversal of burdens would signal that the fei is aware of the current discourse and would reserve the strict liability standard for more serious infringements of the eadcmrs. the fei stance on doping is commendable as it puts the welfare of the equine athlete at the forefront. however, the eadcmrs are submerged in verboseness and legalese. they are 80 pages in length. at times, the regulations are confusing especially as there are situations where the burden of proof is reversed and the balance of probabilities is used instead of the higher standard of ‘to the comfortable satisfaction’ of the fei tribunal. the eads are a replication of the wada rules, which were drafted with human athletes in mind. they are not fit for purpose. the regulations need to be revised to reflect that the subject of the rules is an equine athlete, a sentient being and not a piece of equipment. the case of blythe and lyle demonstrates that the regulations need to clearer and more concise. if the eadcmrs were redrafted with the horse in mind, it would reflect a more consistent approach of the fei, which on the one-hand recognises the equine athlete in some situations, yet on the other hand, the regulations do not refer to the equine athlete. 76 human athletes and racehorses are subject to out-of-competition testing, whereas the fei carries out in-competition testing only. an overhaul of the regulations that recognises the specific needs of the equine athlete and the introduction of out-of-competition testing for banned substances would give more credence to the regulations. the cas decision has clarified the fei’s policy of imposing a two-month provisional suspension on equine athletes. it is a well-thought out decision that has as its core the welfare and health of horses. while the interim decision to provisionally lift the suspensions seemed to undermine the objectives of the fei, the panel took a very serious view of the impact of banned and other substances on the wellbeing of the horse. it is a much welcome decision as it solidifies the fei policy and it is hoped that this will ensure that it is immune from further challenge. the 2019 regulations do not include an explanation of the two-month provisional suspension. it is disappointing that the cas’s recommendation that the provision be more transparent and in published form was not taken on board in the drafting of the 2019 regulations. the regulations were revised prior to the fei tribunal final decisions; it may be that the next major revision of the regulations will include a description of the two-month equine provisional suspension. the fédération equestre internationale speaks for the horse who has no voice and the court of arbitration intestacy reforms the way things were, 1952 s. m. cretney* proposals to reform succession law can arouse strong feelings: the new code of intestate succession introduced as part of the 1925 property legislation i was seen by some2 as threatening the traditional landed estates; whilst the proposals in the law commission's recent report distribution on intestacy.3 denounced as "naive and simplistic" by the authors of the standard practitioners' work4 and criticised in somewhat more measured terms by other commentators,5 have been rejected by the government. 6 in contrast, the intestates' estates act 1952 which effected a major shift in the policy of the law was enacted with little opposition, notwithstanding the fact that some of the issues which have now come to seem intractable had already become the subject of comment. 7 there may therefore be more than mere antiquarian interest in giving an account, drawing on the official papers which are now available in the public record office, of how that act came to be enacted. 8 * solicitor, fellow of all souls college, oxford. the author is grateful to mr. d. r. holloway (see note 41) who kindly read the typescript. i. administration of estates act 1925, consolidating provisions first enacted in the law of property act 1922. 2. walter hume long, widely regarded as the leader of the country party amongst the unionists and at the time first lord of the admiralty, had his expressed concerns about the possible impact of the reforms on the landed interest allayed by a 12 page letter from the permanent secretary in the lord chancellor's department, sir claude schuster; and long's specific concern that the ending of primogeniture would lead to the break up of the old family estates was met by the argument that such estates were usually held in settlements which would regulate devolution irrespective of the law of intestacy: see letters of 1,9,10 and 12 february 1920 public record office [pro] files lc02/443. 3. law com. no 187 (1989) 4. sherrin and bonehill. the law and practice of intestate succession (2nd ed. 1994) p.124. 5. see notably r. kerridge, "distribution on intestacy, the law commission's report" (1990) 54 conv. 358. 6. see official report (hl) 1 july 1993, vol. 547, col. wa 38. the commission, possibly surprisingly in the light of criticism from commentators and bodies such as the law society [see official report (hl) 16 june 1922, vol. cols. 170-178], appears to regard the government's reaction as exemplifying an unsatisfactory attitude to the implementation of law reform proposals: see twenty-eighth annual report 1993 (law com. no. 223, paras. 1.14 1.23, 3.6 3.8.); and note the debate on the second reading of the law reform (succession) bill, official report (hl) 13 february 1995, vol. 561. col. 502. 7. notably the respective rights of a surviving spouse and the deceased's children. 8. the main files consulted are lc02/444i. 4443, 4445, 4446, 4447. (committee on the law of intestacy. evidence, correspondence with members); lc02/4448 (committee on the law of intestacy. minutes of meetings); lc02/4449 (committee on the law of intestacy, publication of report etc); lc02/4450 (committee on the law ofintestacy, as to carrying out report); lc02/4451 (the intestates' estates bill 1951, correspondence 1951-2); lc02/4452 (the intestates' estates bill, further correspondence); and lc02/6671 (the intestates' estates bill 1951, notes on clauses). 35 the denning law journal sufficient to keep mum?9 the administration of estates act 1925 had been based on the principle that the surviving spouse of an intestate should consistently with the pattern of distribution actually adopted by those who made wills inherit the whole of all save the largest estates: the survivor had the personal chattels and a legacy of £1 ,00010 absolutely, and a life interest in any residue. ii but shortly after the end of world war ii notwithstanding the fact that inflation had been, by more recent standards, modestl2 concern began to be expressed (both officiallyl3 and otherwise'4) about the plight of widows whose husbands had failed to make wills; and particularly about the risk that the matrimonial home would have to be sold in such cases. is eventually a parliamentary question'6 by lain macleodl7 led the lord 9. changes in attitudes over the past half century are vividly demonstrated by a world war ii poster preserved in the public record office which sought to increase security consciousness by the slogan "be like dad. keep mum!" 10. with interest at 5% from the date of death. 11. if the intestate left issue, the surviving spouse had a life interest in half the residue; and if there were no issue, but certain specified relatives (extending to uncles and aunts of the half blood) survived, the spouse's life interest was extended to the whole estate: administration of estates act 1925, s. 46. the personal representatives could (with the consent of the surviving spouse) redeem a surviving spouse's life interest in consideration of a lump sum reckoned in accordance with tables elected by the personal representatives [administration of estates act ]925, s. 48(1)]. experience suggested that this power was not extensively used "perhaps because the existence ofthis particular section of the act is not widely known to personal representatives": repon of the committee on the law of intestate succession, cmd. 8130 (1951) para. 32. 12. according to official indices, it would have been necessary to spend £1 ,700 in ]948 to buy goods which had cost £1 ,000 (the amount of the statutory legacy to a surviving spouse) in ]925. 13. the law society, responding to letters from solicitors inserted a notice seeking views in the gazette in november 1948; and the council concluded that a surviving spouse should receive £5,000 irrespective of whether there were children of the marriage: h. boggis-rolfe [lord chancellor's office] to the treasury solicitor sir thomas barnes, 22 may 1950, pro file lc02/4440. 14. a correspondent informed the lord chancellor's office [see pro file lc02/444i ] that he had had the "painful duty of having to tum the widow out of the family home on the death of a husband ... and i have just dealt with a case where the husband had to leave the home arising out of the death of the wife. i could recite other tragedies, if necessary." 15. the "inflated value of house property" was referred to as a relevant factor in the repon of the committee on the law of intestate succession cmd. 8130 (1951) para. 10; but lord chancellor simonds appears to have deleted the reference to this from his officials' draft of the paper recommending legislation to be submitted to the home affairs committee on 28 november 1951: see the manuscript amendments to the draft in pro file lc02/4451. 16. 16 april 1950. 17. he asked the attorney general to set up a committee on intestacy . 'particularly in relation to the widow's right to purchase the home where she and her deceased husband have lived". he had earlier written to the attorney general, sir hartley shawcross referring to a constituency case in which the deceased's daughter was insisting that the house be put up for auction "which is, 1 believe, within her rights ... although the widow's money contributed greatly to the buying of the house". macleod, elected in 1950, was a powerful orator who had a meteoric rise to office (becoming minister of health in 1952 at the age of 38 on promotion direct from the back benches) but he was not popular with influential right wing conservatives (who thought him "too clever by half" and evidently sometimes found it difficult to accept a man who had earned some part of his living by playing bridge). his sudden death on 20 july 1970 (shortly after being appointed chancellor of the exchequer in the heath government) was thought by other conservatives to be the loss of one of the best prime ministers the country never had: see n. fisher, lain macleod (1973) and r. shepherd, ian macleod (1994) neither of which mentions the role macleod played in this area and the entry by ian gi]mour in the dictionary of national biography. 36 intestacy reforms the way things were, 1952 chancellorl8 to favour the appointment of a committee under lord morton of henrytonl9 to investigate the issue. 20. the great and the good? it was intended that the committee should reflect a broad range of interests; and the files show a high level of political involvement in the process of choosing those to be appointed. advice was taken from a number of ministers. herbert morrison21 urged that members of parliament should be appointed since such representation gave satisfaction to parliament and "shows that the government are fully alive to the fact that members of parliament are pre-eminently the spokesmen of the public" and that such appointments add authority and may be of considerable assistance when the time comes to give effect to the report.22 morrison also thought that there must be "at least one woman23, and it is always an advantage to put on somebody from 18. viscount (subsequently earl) jowitt. jowitt was thought by some to lack political principle. elected as a liberal in the general election in april 1929, he immediately accepted the post of attorney-general in the labour government and joined the labour party (as lord birkenhead put it, "hurling himself upon the socialist omnibus as it was turning at full speed into downing street".) he was expelled from the labour party in 1931 in consequence of accepting office in ramsay macdonald's national government: see for a full account, r.f.v. heuston, lives of the lord chancel/ors 1940-1970 (1987) chapter ii. in the circumstances his choice of the motto "tenax et jidelis " when raised to the peerage may be thought to have been provocative; but there is no doubt that his tenure of the great seal between 1945 and 1951 was distinguished by considerable achievements in law reform. 19. appointed to the chancery bench in 1938 he was created a lord of appeal in ordinary in 1947. it has been said (by sir denys buckley in the dictionary of national biography 1971-80) that' 'he possessed a ready and impish sense of humour which won him general friendship and affection .... his advocacy was consistently careful, constructive, concise and cogent, and in his judicial judgements he never seemed to find any difficulty in reaching a clear and convincing conclusion lucidly expressed. he was a delightful judge to whom to present an argument but a testing one." morton (who had previous experience of public service as deputy chairman of the contraband committee at the ministry of economic warfare and as chairman of the council of legal education) accepted the invitation; and it was thus unnecessary to approach denys buckley (treasury junior counsel 1949-60, and subsequently a chancery division judge and lord justice of appeal) or raymond jennings qc (subsequently master of the court of protection) who had also been regarded as suitable by the department. the permanent secretary's deputy, george coldstream disagreed with a colleague's view that a recently retired county court judge might be asked: coldstream did not think the judge would be useful members of the committee and "he certainly ought not to be invited to preside. " 20. see the letter from h. boggis-rolfe of the lord chancellor's office (subsequently deputy permanent secretary and at one time secretary to the law commission) to sir thomas barnes, the first solicitor to be appointed treasury solicitor.) 21. morrison, the lord president of the council and as such responsible for the co-ordination of the labour government's policies, was a powerful figure in the labour party. he was defeated by hugh gaitskell in the leadership election in 1955 for the successor to c.r. attlee. 22. morrison to jowitt, 12 july 1950, pro file lc02/4440. 23. when the names of the committee were announced there was adverse comment on the fact that only one woman had been appointed. the national council of women of great britain had previously urged that a representative be appointed, but were politely rebuffed: 10 august 1950. ambrose appellbe, a prominent solicitor of progressive views, wrote on behalf of the married women's trust and protested at the gender imbalance (31 october 1950) as did the women's group on public welfare (14 december 1950). 37 the denning law journal wales": his specific proposaf4 of the labour mp and former school teacher mrs. dorothy rees (whom he described as "a sensible and practical woman") was no doubt welcome.25 she was balanced politically by the conservative mp for northwich, john foster,26 a lawyer of renowned brilliance: and further legal input was provided by the barrister michael albery27 and by the solicitor and labour mp, eric fletcher. 28 considerable difficulty was experienced in finding a suitable trade unionist: arthur deakin, the powerful general secretary of the then 1.3 million strong transport and general workers ' union refused to allow morrison's first suggestion to be appointed, and eventually lord kershaw31 (to whom deakin had "no objection") was nominated. harold wilson32 put forward a number of names of possible employers' representatives and his first choice (sir hugh chance, chairman of a family glass manufacturers, "who manages to find time for a good deal of social work") was appointed. keeping the committee within bounds the committee's terms of reference were a matter of great importance to the lord chancellor's officials: there was evidently34 still considerable sensitivity about 24. in response to jowitt's doubts as to whether it was really necessary to have someone from wales, but an expression of readiness to appoint a welshman who was either a lawyer or had experience of social work: jowitt to morrison 28 june 1950. 25. mrs. rees was subsequently engaged in much public work and was appointed dbe. 26. of whom it has rather surprisingly been said that "his public achievement was negligible compared with his private and personal influence which was considerable in england but especially in north america": miriam rothschild, dictionary of national biography 1981-5. 27. albery was the author of a work evidently admired within the lord chancellor's office, on the inheritance (family provision) act 1938. 28. subsequently ennobled as lord fletcher ofislington. it is said that he was the prime minister's choice as solicitor-general in the labour government in october 1964, but that the appointment of a solicitor to that office was then regarded as impossible. he became minister without portfolio with special responsibility for law reform in that administration: r.f. v. heuston, lives of the lord chancellors 1940-1970 (1987). 30. on the ground that the person concerned was indispensable to the union. 31. kershaw had served as chairman of courts of referees under the unemployment insurance acts. 32. then president of the board of trade: see wilson to jowitt 14 september 1950. pro file lc02f4440. 33. 1896-1981. 34. the draft terms of reference put by boggis-rolfe to the treasury solicitor (pro file lc02f4440, 22 may 1950) were confined to a consideration of the rights of a surviving spouse on intestacy, and stated that coldstream and he had "not been able to think of any other subject which could conveniently be considered simultaneously". 38 intestacy reforms the way things were, 1952 reopening discussion on the powers of the court to override a testator's wishes35 and even more to suggestions that the provisions laid down by law of intestacy might be overriden by the exercise of a judicial discretion. yet any increase in the provision to be made for a surviving spouse on intestacy would inevitably increase the number of cases in which hardship might be caused to others who had been dependent on the deceased. in the end, the terms of reference were skilfully crafted to confine the issues as narrowly as the department thought expedient: the committee was (a) to consider the rights36 of a surviving spouse in the residuary estate of an intestate: (b) to consider whether, and if so to what exent and in what manner, the provisions of the inheritance (family provision) act 1938 ought to be mde applicable to intestacies; 37 (c) to report whether any, and if so what, alteration in the law is desirable.38 the committee at work39 the committee worked with what today seems astonishing speed; and the chairman was able to submit the report to the lord chancellor less than eight months after the committee had been established.40 the committee's secretary was evidently 35. under the powers conferred by the inheritance (family provision) act 1938 whch had only been enacted after prolonged and sometimes almost bitter controversy: see tyler's family provision (2nd. ed. by r.d. oughton, 1984) chapter i for an account making use of the lord chancellor's department's records. the labour lord chancellor, sankey, had favoured legislation on the lines of the much more radical legislation proposed by the national council of societies for equal citizenship in 1929 [see sankey to parmoor, 14 october 1929, pro me lc02/ 1185] but there had been disagreement between conservative lord chancellors: the first lord hailsham had been, and remained, an implacable opponent of the legislation; whereas lord maugham (whose view was finally that which prevailed in cabinet) had been prepared to allow parliament a free choice. parliamentary counsel also had views: "i never ceased to say at every opportunity throughout the time whilst i was dealing with it that it appeared to me to be wrong both in conception and in drafting. consequently no attacks upon it are likely to offend my amour propre": see ellis to coldstream 6 august 1941, pro file lc02/1516. 36. under administration of estates act 1925, s.46; supra. n.ll. 37. this important extension to the terms originally proposed by the lord chancellor's officials was urged by the treasury solicitor. 38. repon of the committee on the law of intestate succession cmd. 8130 (1951) (hereafter referred to as "morton report") para. i. 39. the membership was announced in the times. 18 october 1950. b.e. astbury and a.w. brown were appointed to the committee in addition to those mentioned in the text. 40. the report is dated 5 june 1951 and was submitted on 25 june. in contrast, the law commission evidently began its study of distribution on intestacy in 1987, and completed a working paper [no. 108] for consultation on 10 june 1988. its report [law com. no. 187] dated 27 october 1989 was laid before parliament on 18 december 1989. 39 the denning law journal knowledgeable and formidably efficient;41 and the chairman42 did not encourage excessively lengthy discussion.43 but the main factor influencing such a rapid disposal of what might have been thought complex issues is simply that the committee seems to have had no doubt that it could itself interpret what it described as the spirit of the age.44 moreover, the committee accepted45 the philosophy adopted in framing the 1925 legis1ation46 that the provisions made by testators provided a sound basis upon which intestate distribution could be based;47 and it did have available to it a survey of wills proved over a five week period.48 the committee received advice on the law of intestacy in foreign countries49, and written memoranda from seven 41. d.r. holloway. an official in the probate registry he subsequently served from 1966 to 1983 as a registrar of the principal registry of the family division, and is the author of many books. he produced briefing memoranda which may still be regarded as models of their kind; and also marshalled the statistical evidence (collected in pro file lc02/4445) on which the committee placed some reliance, see infra. n.48. 42. evidently his chairmanship gave satisfaction in government circles, since he was almost immediately appointed to chair the royal commission on marriage and divorce. d.r. holloway was appointed as assistant secretary to the royal commission. the royal commission's report (cmd. 9678 published in 1956) was far from unanimous, and has been the subject of strong and even intemperate criticism, notably by o.r. mcgregor, divorce in england (1957). 43. the committee met on only six occasions. the minutes on the fifth meeting give some flavour of the chairman's style: a "long discussion" took place on whether the provisions ofthe inheritance (family provision) act 1938 should be extended to total intestacies. the minutes record an extensive discussion of the issues: and' 'the chairman put the following question to the committee: do you think: that some provision should be made by statute for mitigating cases of hardship which might arise" if the proposal significantly to increase the surviving spouse's rights were adopted? "all the members with the exception of mr. eric fletcher thought that some provision should be made. mr. fletcher then said that in view of the general opinion of the other members he was prepared to support the recommendation put forward by the chairman in the outline of the report. (mr. fletcher left the meeting at this stage).": pro file lc02/4448. 44. motton report para. 10. 45. as had the law society: see boggis-rolfe to barnes, 22 may 1950, pro file lc02/4440. 46. the notes for ministers prepared by officials on the bill which became the intestates' estates act 1952 state that the draftsman of the 1925 act, sir benjamin cherry, "incorporated what he believed to be general intention of persons dying intestate. in doing so he acted mainly on his personal knowledge, no comprehensive statistics of disposals by will being available at the time". but it appears that in fact statistics were obtained from the estate duty office in 1921 and that they confirmed the view taken by cherry: see memorandum no.1 to the morton committee [pro file lc02/4447] p.2. 47. contrast the cogent criticism of this approach by the law commission, distribution on intestacy (law com. no. 187, para. 4.) 48. morton report, para. 18. 49. prepared by sir david hughes parry, director of the institute of advanced legal studies, london university, and author of a still widely used student's text: parry and clark, the law of succession (9th. ed. 1988 by j.b. clark). 40 intestacy reforms the way things were, 1952 organisations, 50and it received a large number of written suggestions51 (including a petition signed by 3,202 persons urging improvement in the widow's position52): but the committee did not seek to dramatise the problems.53, and did not even consider carrying out an attitude or other public opinion survey. the committee reports the committee found no difficulty in reaching agreement on its general policy: it accepted the argument that there had been a considerable depreciation in the value of sterling since the 1925 reforms; and that the matrimonial home was often valued at a sum" greatly in excess" of the statutory legacy, with the result that the surviving spouse might be forced to leave the home which would be sold to satisfy the claims of the deceased's children.54 in the result, there was no longer any similarity between the provision made for the surviving spouse by the average testator and that made for the spouse by the law of intestate succession;55 and, in the committee's view, it followed that the surviving spouse's share should be increased. 56. more but how much more? it would hardly have required the appointment of a committee to reach this conclusion: but deciding on the nature and scale of the increase was much less easy. the committee drew a distinction between cases where the intestate left surviving issue and other cases. where there were surviving issue, the committee decided that a fivefold increase 50. the general council ofthe bar and the council of the law society (who both also gave oral evidence): the solicitors' managing clerks' association, the committee of london clearing bankers, the married women's association and the national council of women of great britain. the marriage law reform society did not disguise the fact that its primary objective was to reform the divorce law so as to permit divorce afterthe spouses had lived apart for two years rather than to reform the law of intestate succession, but it did prophetically favour giving a person who had lived with the deceased as a spouse for three years the right to make a claim underthe 1938 act (cflaw com. no. 187. para. 63 two year cohabitants to be eligible a proposal to which effect is to be given by the law reform (succession) act 1995). 51. although the morton report states that most of the private individuals' comments were about particular cases of hardship [para. 2] it should be recorded that professor glanville williams presciently identified the demographic changes reflected in an increasing number of step-parent relationships as a matter which should be taken into account in any reform; and that a particularly powerfully argued letter from a halifax solicitor, e. maurice drake, solicitor, foreshadowed the recommendation ultimately made by the law commission in 1989 that the whole estate should go to the widow leaving other dependants to an application for the exercise of the court's discretion under the inheritance legislation. 52. morton report para. 2. 53. the secretary found it necessary to write on 30 november 1950 to the editor of the daily graphic stating that whilst he welcomed "to a limited extent" the publicity which the newspaper had given to the committee's work, it was "not correct to say that i hear daily of tragedies caused by persons dying intestate. i have no recollection of making a statement of this nature to your reporter and in any event it is not true. " 54. considerable difficulty was caused to the committee and to officials by the existence of a concession which often led to the home being valued for estate duty purposes at its pre-world war ii value: see eg morton report para. 25. but unless the contrary is indicated references in this text are to the market values current at the time. 55. morton report, para. 16. 56. supra. n.54 and text. 41 the denning law journal (to £5,00057) in the amount of the statutory legacy payable to a surviving spouse58 would be appropriate59. the committee also made two ancillary proposals in further support of the objective of improving the surviving spouse's position. first, the survivor should be given an option to purchase the matrimonial home at its open market value as at the date of the deceased's death;60 and, secondly, the spouse should be entitled61 to redeem the life interest in half the remaining estate to which (it was proposed) the survivor should continue to be entitled. 62 in cases where the deceased left no issue, the committee recommended a compromise between those63 who favoured giving the whole estate to the survivor;64 and those who thought that the deceased's kin should also benefit. where the deceased died without issue but left a spouse and a parent or sibling of the whole blood, the spouse should take a legacy of £20,000 and half the residue absolutely. the balance of the estate should go to the surviving parent or parents, or (if neither parent survived) to the brothers and sisters of the whole blood.65 the committee did not think the 57. free of death duty and costs; and the survivor would retain the entitlement to the deceased's personal chattels. the recommended increase in the amount of the statutory legacy was substantially more than would have resulted from adjusting the £1 ,000 provided by the 1925 act to take account of general inflation, and was at the upper end of the range of suggestions made by witnesses. indexation which would have justified an increase to £2,000 was evidently a comparatively linle understood concept; and the committee does not seem to have been influenced by it. the bar council (virtually alone) had recommended that the legacy remain unchanged, the spouse's position being improved by conferring a life interest in the whole of the deceased's residuary estate: morton report, para. 17. 58. the rate of interest payable on this statutory legacy was to be reduced from 5 % to 4 %: morton report, paras. 16-22. 59. the statement by lord gardiner in moving the second reading of the family provision bill 1966 [see official report 16 june 1966, col. 202] that the morton committee had "pointed out that the object of the statutory legacy was to enable the widow to buy the house", that the committee said that "£1,000 for this purpose was no use in 1952" and that the proper equivalent, judged in terms of the increase in the price of houses" was £5,000 does not accurately reflect the committee's expressed views [see morton report, para. 10-21] which took account of inflation in house prices as merely one relevant factor. the committee (following the precedent of those responsible for the 1925 legislation) was much more influenced by the pattern of testators' wills. 60. morton report, paras. 23-27. 61. under the administration of estates act 1925 s .48(1) the intestate's personal representatives were empowered to redeem the life interest in accordance with tables they selected; but this procedure was not much used: morton report, para. 32. the committee's proposal (intended to reduce the number of life interests and further to improve the position of the survivor) gave the right to the survivor in accordance with a "simple table ... proportionate to the expectation of life of the surviving spouse" incorporated in the legislation: morton report, para. 32. 62. morton report, paras. 28-32. 63: notably, the council of the law society: morton report, para.34. 64. "this seems rather a striking proposal. it means that the spouse would take the whole estate even if the intestate left a very large estate .... we feel that under such circumstances a childless person, dying intestate, would wish that close relatives ... should take some benefit from the estate, subject always to adequate provision being made for the spouse. it often happens that a large portion of the intestate's estate has been derived from his family and it seems just, therefore, that the family should have an opportunity of sharing in it after the intestate's death. "[morton report, para. 34]. 65. on the statutory trusts defined by administration of estate act 1925, s.47, which also provided for substitution of issue of deceased siblings. 42 intestacy reforms the way things were, 1952 "average individual would want relatives more remote than this to benefit from the estate at the expense of the surviving spouse66 and accordingly recommended that brothers and sisters of the half blood and their issue, should lose the right67 to share in the estate of an intestate who died leaving a surviving spouse.68 the general tenor of the committee's proposals was thus vividly to exemplify what has been described69 as the amputation of the blood stock and of the movement of marriage (as compared with genetic kinship) into the foreground. 70 but the committee was itself conscious71 that the increased provision which it proposed for a surviving spouse might well work injustice in many cases where there were stepchildren by another marriage; and for that reason recommended that the inheritance (family provision) act 1938 should be made to apply to cases of intestacy.72 officials decide british constitutional practice allows ministers to seek advice (whether from bodies such as departmental committees or from their own departmental officials or from others73); ministers74 decide whether to take such advice and whether and when to promote legisla,tion;75 and parliament decides whether to enact the measures placed before it. 66. morton report, para. 36. the surviving spouse was to take the whole estate absolutely if no relatives within the defined class survived. 67. administration of estates act 1925, s.46. 68. morton report, para. 36. such relatives were to retain the right to succeed if there were no surviving spouse. 69. by sundberg, cited by d. bradley, "marriage, family property and inheritance in swedish law" (1990) 39 l.c.l.o. 370. 70. this thesis is persuasively developed by m.a. glendon, the new family and the new property (toronto, 1981). 71. although this was one of the few matters on which the committee found difficulty in reaching agreement 72. the committee's terms of reference were (as has been pointed out: supra. ns. 34 & 35) deliberately restricted to limit the scope of discussion of the 1938 act; and the committee at its first meeting on 9 november 1950 had discussed whether it should seek to have them extended. only john foster kc dissented from the general consensus not to do so: see minutes, pro file lc02/4448. in the event the committee clearly found the restriction on the scope of its enquiry embarrassing; and it suggested, "at the risk of travelling outside our terms of reference" that if the act were to be extended to cover cases of intestacy' 'opportunity might advantageously be found to remove some of the defects which have come to light in the course of' experience of its working (in particular the restrictions imposed by s.i(3) and (4»: morton report, para. 49. moreover, the class of dependants who could apply under the act was restricted for example, an adult son of the deceased's could only do so if disabled; and it is not surprising that the committee thought it would "obviously be necessary" to review the whole of the act closely if it were extended to intestacies, and that it might be thought desirable to enlarge the class of "dependants": morton report, para. 51. in the event, no comprehensive review took place until the law commission undertook the review (second report on family property: family provision on death, law com. no. 61, 1974) which formed the basis of the inheritance (provision for family and dependants) act 1975. 73. in recent years, the practice of taking advice from personal advisers has increased. 74. assuming collective responsibility for cabinet decisions. in practice, crucial decisions will usually be taken by cabinet committees in the present instance the home affairs committee. 75. or whether to block, preserve neutrality (benevolent or otherwise), or actively to support the small number of bills introduced by private members. 43 the denning law journal the relationship between the different actors in this scenario can be subtle: the power of officials to influence matters has been a source of much comment but seems inevitable given their long term involvement in the executive machine. on the other hand, ministers will have declared policies on some matters (albeit rarely on lawyers' law reform) and certainly cannot routinely force through legislation which their own officials support without regard to opinions expressed in either house of parliament. the passage of the intestates' estates act 1952 illustrates the working of these relationships in the context of what appeared to be a bill devoid of almost any political content. 76 • government consultation: not quite so simple after all .. the first stage in the decision taking process was for the lord chancellor's officials to consult with other officials on the morton report's proposals; and, immediately, problems were raised. on one view, the most difficult77 was whether the committee had fully considered the implications of the rule78 that the younger of two persons who died in circumstances rendering it uncertain which had survived the younger should be deemed to have survived. hence, a much increased inheritance might, for example, pass to the family of a young bride killed with her husband in an air crash rather than staying in the husband's family. 79 lord morton candidly told80 coldstream that his committee had never considered the point and that he did not want to do so.81the lord chancellor82 came to agree that legislation should provide that the statutory presumption be nullified for the purposes of intestate succession;83 and the lord chancellor's memorandum to the home affairs committee was settled accordingly. 76. the morton committee had been appointed by, and reported to the labour government's lord chancellor (jowitt: supra., n.18). but that government was defeated at the general election on 25 october 1951 and decisions as to implementation fell to lord simonds, a man of no political experience who was evidently mystified by his appointment by winston churchill (in his last administration). he was a great chancery lawyer, who sadly is now best remembered for his vigorous criticisms of lord denning in the midland silicones case [1962] ac 446,459 ("heterodoxy, or, as some might say, heresy, is not the more attractive because it is dignified by the name of reform"). . 77. raised by the treasury solicitor. 78. law of property act 1925, s.i84. 79. "we had some very hard cases under the present law during the war ... " 80. according to a note endorsed on a letter from coldstream to morton dated 19 november 1951 marked "not to be sent". 81. although the point had in fact been put to the committee by the quain professor of jurisprudence at london university. professor glanville williams. 82. simonds' manuscript note on a minute from dennis dobson dated 26 november 1951: pro file lc02/4457. 83. see now administration of estates act 1925, s.46(3) as added by intestates' estates act 1952, s.i(4). the law commission [distribution on intestacy, law corn. no. 187, 1989, para. 57] consider that a surviving spouse should only inherit if he or she survives the deceased for a period of fourteen days, and the law reform (succession) act 1995 incorporates a provision requiring survival. 44 intestacy reforms the way things were, 1952 another difficulty for the lord chancellor's officials the greatest difficulty84 was in connection with the recommendations relating to the inheritance (family provision) act 1938: the committee had pointed out that there were difficulties caused by restrictive provisions incorporated in that legislation85 but (dennis dobson86 plaintively minuted87) the committee had unfortunately not given any indication of the way in which it thought the act should be amended. 88 when the cabinet's home affairs committee expressed some disquiet89 at t~e implications of the proposals to enhance the spouse's position as they would affect a husband with issue by one marriage who remarried late in life, the lord chancellor explained that' 'it was because of this kind of difficulty" that he proposed amendment of the 1938 act" to enable the courts to intervene in such cases".90 in the light of this discussion it was agreed that a bill be drafted.91 it was thought better that it should be handed to a private member who had a good place in the ballot for private members' bills and lacked any bill of his own rather than being introduced as part of the government's legislative programme. 84. dobson's minute to simonds 26 november 1951, pro file lc02/4457. 85. supra., n.72. 86. he subsequently became successively assistant permanent secretary (1954-1968) and permanent secretary (1968-1977). 87. and it may be thought in view of the determination of the lord chancellor's officials to confine discussion of the 1938 act to the barest minimum: see supra., n.34 somewhat unjustly. 88. simonds minuted that it would be better to have a separate bill dealing with the family provision legislation, "but this might, i understand, make it more difficult to get any bill through": pro file lc02/4457. simonds' manuscript note dated 25 november 1951. in the result, the lord chancellor and home affairs committee accepted the officials' recommendation to retain the rule [inheritance (family provision) act 1938, s.i(i) proviso] that applications be not permitted where the deceased had bequeathed not less than two thirds of his net estate to the surviving spouse and the only other dependant or dependants were a child or children of the suvivor, whilst removing restrictions on the court's powers in ordering provision in the cases with which it had jurisdiction to deal. (the family provision act 1966 finally removed the restriction imposed by the 1938 act so as to avoid the anomaly whereby a spiteful testator might leave a widow two-thirds of the income of his estate in order to prevent her having any right to apply to the court: see official report (hl) 16 june 1966 vol. 275, cols. 203-4. lord gardiner's statement that he did not know whether the retention of the relevant proviso in 1952 "was simply a slip" suggests that his attention had not been drawn to his predecessor's advice to the home affairs committee: see pro file lc02/4451, 28 november 1951, para.8. 89. the morton committee had itself recognised this problem: para.47; and the president of the probate divorce and admiralty division subsequently told coldstream that "very considerable hardship might be caused by the over-riding preference given to the widow" and that "too much may have been sacrificed for the sake of simplicity": merriman to coldstream 5 march 1952, pro file lc02/4457. 90. minutes of home affairs committee, 7 december 1951. as pointed out above [supra. , n. 72 ] , however, the court would only be able to intervene on an application by a "dependant" of the deceased, and accordingly no married daughter or adult son could apply unless disabled. 91. the bill as drafted departed from one recommendation of the morton committee (which had taken the view that there should be no special rules for partial intestacies). it was decided that, in the light of the increased size of the statutory legacy, the spouse should be required to bring any benefit taken under the will (or in exercise of any general power of appointment) into account against that provision. 45 the denning law journal drafting the bill: the difficulties increase ... although it is true that there may be difficulties in securing agreement to broad issues of policy it is often found that these pale into insignificance when those broad issues have to be translated into the precision required by the english tradition of statutory drafting. the intestates' estates act 1952 provides a remarkable example of this phenomenon. what, for example, could be simpler than to draft legislation giving effect to the morton committee's recommendation that a surviving spouse should have an option to purchase the deceased's interest in the matrimonial home? and yet ... how was matrimonial home to be defined? how were the interests of purchasers and creditors to be protected? what was to happen if the survivor were under 21 or of unsound mind? the draftsman did his best but was not satisfied with the result: it is not, of course, the draftsman's job to take views on policy but the draftsman wrote that the difficulties were so great that "the whole of this option" might best be omitted from the bill.92 after all (he wrote) "the committee were luke warm about it particularly, as i read between the lines, the legal members"; and there would be no problem in keeping the house for the widow's occupation where the family was harmonious, and so "one is probably legislating for the cases where either side are ready to take any obstructive point, and this subject fairly bristles with debatable points which the drafting must leave open." it seems clear that issues of policy could not easily be segregated from technicalities; the grant of an option to purchase would 93 "simply encourage old ladies to insist on going on living in houses which were far to large for them and against their real interests' '94. in the result, the officials came to agree that it was impossible to draft legislation to give effect to the proposal, and the bill as first presented to parliament did not seek to deal with the matter. but in the end the practical experience of the solicitors' profession came to the rescue:95 the surviving spouse was to be given the right to require the personal representatives to exercise the "well-tried" powers of 92. a.n. stainton, who subsequently became first parliamentary counsel and (accordingly to the obituary published in the times on 12 november 1988) was responsible for drafting much tax legislation. the obituarist refers to his analytical mind and prodigious intellect, and to that fact that, although he did not suffer fools gladly, "he would at least allow the fool to leave the room before expressing exasperation". for some deeply felt remarks about difficulties encountered in collaboration between some law commission staff and parliamentary counsel, see r. t. oerton, a lament for the law commission (1987) chapter 6, particularly pp.54-6. for comments on the drafting of the 1952 act in the light of experience, see infra. n.100. 93. coldstream to the solicitor-general sir reginald manningham butler 7 march 1952. the draftsman's attempt to produce clauses conferring an option to purchase had been referred to the senior chancery judge, vaisey j. and he had made "the most devastating criticism of the proposal" and advised the lord chancellor to drop it because legislation would do more harm than good. 94. see to the same effect h. hylton-foster's speech on the second reading of the bill: official report (hc) 28 march 1952, vol. 498, col. 1078. 95. see the correspondence between coldstream and horsfall-turner from 13 march 1952. 46 intestacy reforms the way things were, 1952 appropriation96 in respect of the matrimonial home97; and the resultant provisions seem to have given rise to few problems98 in practice.99 the fertile mind of the draftsman found 100 many other difficulties; 101 but a bill was eventually drafted and circulated within whitehall and elsewhere for comment. officials, viewing the bill from their own departmental perspectives, were not slow to accept the invitation.102 some of these comments led to significant 96. administration of estates act 1925, s.141. it was held in lall v. lall [1965] i w.l.r. 1249 that the survivor has, prior to appropriation, no equitable interest in property such as to give standing in a possession actipn brought by registered proprietor; and note the draftsman's concern about the difficulties of deciding how far the morton report's "option" would bind third parties. 97. but if the widow were to be given a right to keep the matrimonial home, should she not also be given a right to keep the family business? an amendment to this effect was successfully moved by barnett janner mp (later baron lanner a solicitor and president of the board of deputies of british jews and himself the son of a small shopkeeper) official report (hc), 24 june vol. cols. 22-4; but a firm stand was taken against what lord mancroft described as a "perfectly horrible clause" [official report (hc), 29 july 1952, vol. 178, col. 390.] as the draft prepared by officials explaining to janner why the clause was to be removed put it, leaving the technicalities on one side, "widows are often not the best judges of their own business capacity": pro file lc02/4452. 98. but see re phelps dec'd [1980] 1. w.l.r. 1501 to the effect that the right could not be exercised where the house was worth more than the amount of the statutory legacy. and note the view of the law commission [law com. no. 187, para.34] that the interpretation put on this provision in robinson v. collins [1975] i w.l.r. 309 (value of house to be calculated at date of appropriation rather than at death) had caused problems. the morton report envisaged that the survivor's right should be to purchase at the death valuation: para. 25. 99. see the discussion in sherrin and bonehill, the law and practice of intestate succession (2nd. ed. 1994. it is to be noted that officials were worried that the exercise of the power might be "catastrophic" in some cases (e.g. where the matrimonial home had been a farmhouse) and that accordingly in certain defined cases the right to require appropriation is not exercisable unless the court is satisfied that doing so would not be likely to diminish the value of other assets or make them more difficult to dispose of: see intestates' estates act 1952, sched.2, para. 2. but it was decided (contrary to tradition) that "the attempt to legislate for every case should be abandoned"; see notes on clauses, pro me lc02/667 i , p.124. 100. unfortunately, he did not identify some problems which arose in practice. the drafting of the 1952 act was criticised by academic writers: see sherrin and bonehill, the law and practice of intestate succession (2nd. ed. 1994); and in the debate on the amending family provision act 1966 the conservative spokesman took the possibly unprecedented step of apologising for the "considerable errors" which were made: see official report (hl) 16 june 1966, vol. 275, col. 210. 101. see in particular his six page letter dated 4 january 1952. amongst the difficulties raised were (i) the application of the rule in allhusen v. whittell (1867) l.r. 4 eq. 295 to the surviving spouse's legacy (ii) the position if the court made an order under the 1938 act on the basis of provision which turn out not to be those made in the will (e.g. where a new will is discovered); (iii) were purchasers to be affected by notice that chattels should have gone to the spouse?; (iv) difficulties which were perceived as likely to arise in relation to the requirement that one spouse be proved to have survived the other. the draftsman's comments caused some irritation to the lord chancellor's officials; in particular, stainton's suggestion that the committee be asked whether they had taken account of the implications of the rule in allhusen v. whittell prompted a great deal of departmental research; but ultimately dobson told the private member to whom the bill had been allotted (sir hugh lucas-tooth: see infra. n.i06) that he was not sure that the problem was quite as difficult as stainton had made it appear "because ... i think one would find that little notice was taken of the rule in allhusen v. whittell": dobson to lucas-tooth 7 january 1952. 102. for example, the postmaster general was concerned that any extension of the inheritance (family provision) act 1938 would have implications on the right given to depositors to nominate national savings accounts and other investments; and his officials were concerned that he should be protected. coldstream robustly suggested to stainton that' 'the best thing to do is to leave this question alone ... " 20 may 1952. the difficulty that a person could wholly defeat the operation of the 1938 act by skilful choice of assets which would fall outside the definition of "net estate" in s.5(1) was later taken by the law society; but no action was taken until the law commission's review [second report on family property: family provision on death, law com. no. 61, 1974] which led to the enactment of inheritance (provision for family and dependants) act 1975, s.8. 47 the denning law journal change; 103but the consultation also revealed doubts about the merits of some of the proposals. in particular, a powerful letter from the president of the probate divorce and admiralty division, 104suggested that too much had been sacrificed for the sake of simplicity and that very considerable hardship might be wrought by the overriding preference given to the widow; and eventually the legislation committee asked the lord chancellor to consider whether an amendment was needed to reduce the degree of preference given by the bill to the second spouse in cases of remarriage after divorce. 105 difficulties do not trouble parliament it was nevertheless decided not to amend the bill further; and its passage through both houses of parliament was skilfully handled by the private members entrusted with its carriage, 106there were in fact a number of serious issues of principle which might have been discussed, but (as the commons spokesman, hylton-fosteri07) wrotelo8 "speed and joviality looked like the easiest way", and in the result the few members who attended the debateslo9 were regaled with accounts of "elderly 103. notably in the method of calculating the amount to be paid by way of redemption of the surviving spouse's life interest: see the notes on clauses, pp.15-19, pro file lc02/6671. following advice from the government actuary a simple scheme for valuation by reference to the cost of a post office annuity was incorporated into the legislation: intestates' estates act 1952, s.2(2). subsequently, the withdrawal of post office annuities required the scheme to be amended; and it is now provided that the capital value is to be reckoned in such manner as the lord chancellor may direct: see administration of justice act 1977, s.28(3) and the tables laid down in the intestate succession (interest and capitalisation) order 1983 (s.1. 1374). 104. merriman to coldstream 5 march 1952, pro file lc02/445i , lord merriman had had a difficult relationship with the department, no doubt in part because of his bitter opposition to the proposals for reform of divorce law and procedure put forward in the reports of the [denning icommittee on procedure in matrimonial causes (1946-7): see p. polden, guide to the records of the lord chancellor's depanment (hmso 1988) pp.106-109. the situation which arose in relation to the intestacy proposals is the more surprising in the light of coldstream's acceptance in 1946 that "no such enquiry ought to be allowed to be started unless we are quite sure that it is one which is likely to have the approval of the head of the division concerned": pro file lc02/3951. 105. minutes of meeting 11 march 1952. 106. it had originally been intended that the bill would be taken through the commons by the barrister conservative mp for hendon south sir hugh lucas-tooth; but he was appointed parliamentary undersecretary at the home office and a substitute had to be found. there was some criticism in the commons that the government was using private members' time for what was in substance a government bill. 107, harry hyltonfoster had been elected conservative mp for york in 1950, and subsequently became solicitor-general (1954-9) and speaker of the house of commons (1964-5). 108, to coldstream 29 october 1952. 109. officials voiced concern about the unrepresentative nature of the debates: the house of commons second reading debate was "a very thin house" with few speakers. (in fact the house was in fact counted out on 28 march, but the second reading was carried "on the nod" in the following week. the committee debate was "very meagre"; and officials regretted that the bill had had so little consideration because there were "many questions of principle" on which any government would want a free vote (e.g. the size of the statutory legacy). the only point of principle urged with any conviction was by charles fletchercooke the barrister conservative mp for darwen who successfully objected to the further discrimination proposed by the morton committee against relatives of the half blood: the bill was amended to allow b~others and sisters (and uncles and aunts) of the half-blood to retain their right to succeed in default of any spouse, issue, or parent of the deceased, ranking after relatives of the whole blood in the same degree. 48 intestacy reforms the way things were, 1952 gentlemen who marry little blonde creatures much younger than themselves in the autumn of their days" 110 and other witticisms. 111 the significance of the 1952 legislation the intestates' estates act 1952 may, at first sight seem to have been of little long term significance; but in reality by emphasising the primacy to be accorded to the claims of a surviving spouse it constitutes a decisive landmark in the evolution of the law. the act is also significant in a number of other respects: for example, for the first time in english statute law it recognised the family home as an asset which deserved special protection. perhaps of even greater significance was the acceptance of the principle that, since no general code for intestate distribution could achieve satisfactory results in every case, the court should be given power to vary the statutory provisions if they failed to make reasonable provision for the deceased's dependants. this paper has, however, been primarily concerned with the process whereby the legislation came to be enacted rather than with the merits of change in the substantive law: and in this respect the following points may be made. (i) preparing public opinion. the morton committee is a classic example of the technique of preparing the way for legislation by establishing a comparatively broadly based group of people from outside government to make recommendations. the use of the committee technique is all the more striking since it seems that there was little dispute that the provision made by the 1925 legislation for the surviving spouse of an intestate had become inadequate. the morton committee was the last occasion on which this technique was used in this context: in 1966, government felt sufficiently confident to decide on reforms without formal outside consultation; 112 whilst the most recent proposals have been 110. h. hylton-foster, official report (he) 28 march 1952, vol. 498: col. 1083. ill. the conservative peer, lord mancroft, (at the time a member of the bar council), was entrusted with the carriage of the bill in the house of lords. his light-hearted speech on the second reading debate in the house of lords was evidently skilfully attuned to the mood of the house. the administration of estates act had, he said, been drafted by the late sir benjamin cherry, and contained a table of' 'a complexity and confusion equal only to that in the table of affinity in the prayer book, concluding with certain nefarious characters which could have stepped only from the pages of saki or p. g. wodehouse namely, aunts of the half-blood. i never met a case of a man being disinherited by a half-blooded aunt, but presumably sir bejamin cherry did not want to take any risks!" [official report (he) 29 july 1952 vol. 178, col. 390]. a humorous reference to the possibility that lord chancellor jowiu [see supra. n.18] might solve his housing problems by moving into the vicarage at bray offended jowiu to the point that he subsequently always left the lords' chamber whenever mancroft spoke [heuston, supra. n.18 p.80]; but mancroft's parliamentary skills were subsequently put to good effect in securing the enactment of the marriage (enabling) act 1960 which rationalised the rules governing the prohibited degrees of marriage. 112. the newly established law commission was however informally consulted by the lord chancellor: official report (hl) 16 june 1966, vol. 275, col. 203. 49 the denning law journal made by the law commission, a body composed exclusively of professional lawyers.li3 one advantage of the committee technique is to give notice that issues on which people may have strong views are being discussed; and thereby to some extent to familiarise the community with the proposals which are being considered. it may be that some recent experience notably with the child support act 1991 supports the view that comparatively open discussion carried out over a period of time has some value in accustoming the community to what is proposed. (ii) parliament and law reform. the passage of the intestates' estates act 1952 through parliament demonstrates the weakness of the parliamentary process as a means of ventilating serious issues in which there is no particular party interest. it was difficult to engage the interest of mps; and the concern of those with carriage of the bill was inevitably to minimise the possibility of matters being pursued in a way which could jeopardise the prospects of the bill becoming law. 114 study of the parliamentary process on this and other occasions may be thought to give further weight to the arguments in favour of a special procedure for dealing with technical measures of law reform 115 and engender scepticism about the wisdom of the decision of a majority of the house of lords in pepper v. hartl16 to allow reference to the official report of proceedings in parliament in certain circumstances. (iii) the technicality of law reform. above all, study of the background to the 1952 act reveals the high level of technicality involved even in legislation which might be thought, at first impression, to be comparatively simple and the major part in that process which is played by the parliamentary counsel. who, for example, could have predicted that the morton committee's proposal that a surviving spouse should be given the option to purchase the matrimonial home would raise so many technical problems that it was decided it should be abandoned?ll? 113. family law, distribution on intestacy (law com. no. 187, 1989). the law commission did, in accordance with its usual practice, engage in a fairly wide consultation exercise: and on this occasion (unusually) it did rely on the results of a survey of public opinion. 114. for a further remarkable example see s.m. cretney, "the forfeiture act 1982: the private member's bill as an instrument of law reform" (1990) 10 ox j.l.s. 289. 115. see the discussion of this issue in the law commission's twenty-eighth annual report 1993 (law com. no. 223, paras. 1.11-1.21.). 116. [19931 a.c. 593. 117. the fact that an alternative was adopted demonstrates that the executive is not all-powerful; and that if a particular aim has sufficient informed support a government will find difficulty in resisting suggestions that some technique be found to achieve it. 50 intestacy reforms the way things were, 1952 (iv) not for all time, but for a decade or two? finally, the history of the 1952 act demonstrates that legislation of this kind has only a limited life expectancy. leaving aside the rapid inflation of the sixties and seventies which led to what would at one time have been thought to be the constitutionally higwy objectionable decision to leave the fixing of intestate succession to the virtually uncontrolled discretion of the government some of the problems which could be swept under the carpet in 1952 (notably the conflict of interest which may arise when a surviving spouse is not the parent ofthe intestate's children) have, half a century later, come to assume a degree of importance which can no longer be ignored. the fact that the law commission's recent report on distribution on intestacy fails adequately to grapple with this issue has led inevitably to the commission's proposals being rejected,i18 118. law com. no. 187 (1989). some of the reforms recommended by the law commission in that report are to be given effect by the law reform (succession) act 1995. for a discussion of the main issue of principle see s. m. cretney, "reform of intestacy: the best we can do?" (1995) iii lqr 77; and note the second reading debate on the law reform (succession) bill: official report (hl) 13 february 1995, vo1.561, co1.502. 51 cidldren's rights or parental property *mary welstead "'when i use a word,' humpty dumpty said in a rather scornful tone, 'it means just what i choose it to mean-neither more nor less. ", 1 such a liberal approach to linguistics may occasionally be observed in judicial statements pertaining to legal concepts. a particularly apt illustration of this approach may be found in decisions relating to children where the term "in the best interests of the child" dominates the linguistic arena. it is common knowledge (but not necessarily common practice) that the "best interests" principle is to prevail in the majority of decisions relating to a child's upbringing; it specifically underpins the children act 1989. section 1(1) of the act directs the court to give paramount consideration to the welfare of the child. section 1(2) elaborates on this principle and provides that the court should consider whether any delay in determining the issue is likely to prejudice the welfare of the child, whilst section 1(3) provides a check list for the court's guidance. the first item on this check list 2 states that a child who is capable of forming his own views has a right to express them and have weight duly given to them in accordance with his age and maturity. 3 similar principles are laid down * senior lecturer in law, the university of buckingham. 1 carroll, through the looking glass, ch. 6. 2 s.i(3)(a) of the 1989 act. other items on the check list include s.i(3)(b) physical, emotional and educational needs; s.1(3)(c) the likely effect on him of any change in circumstances; s.1(3)(d) his age, sex, background and any characteristics of his which the court considers relevant; s.i(3)(e) any harm which he has suffered or is at risk of suffering; s.i(3)(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; s.i(3)(g) the range of powers available to the court under the act and the proceedings in question. 3 s.i(3)(a). see also gillick v. west norfolk and wisbech area health authority and the d.h.s.s. [1986] ac. 112 which established the principle of the competent child capable of self determination independent of parental involvement if of satisfactory age and of sufficient understanding of the matter in question. cf south glamorgan county council v. wandb [1993] i f.l.r. 574. 101 the denning law journal in articles 3 and 12 of the united nations convention on the rights of the child, to which the united kingdom is a signatoly.4 few would disagree about the importance of putting a child's best interests first but what those best interests are, may be difficult to discern in any particular instance. it has been suggested that identifying the best interests of a child involves an ideological minefield where "notions of protection and welfare jostle for position with those of natural justice and children's rights ...best interests can quickly become a camouflage for vested interests ...". 5 mnookin and szwed have, persuasively, pointed out that the term, best interests: "...is so idealistic, virtuous and high sounding that it defies criticism and can delude us into believing that its application is an achievement in itself. its mere utterance can trap us into the selfdeception that we are doing something effective and worthwhile. however, the flaw is that, what is best for any child ...is often indeterminate, and speculative and requires a highly individualised choice between alternatives." 6 4art.3provides that the best interests of the child must be the primary consideration in all actions concerning children; art. 12 provides that children's views must be considered and taken into account in all matters affecting them. the united kingdom ratified the convention in december 19991 and it came into force in january 1992. there are no legal sanctions for breach of the un convention and it is exceptional for uk judges to take into account its provisions; however, the domestic legislation relating to children conforms to a certain extent with the convention, see, inter alia, van bueren, the united nations convention on the rights of the child: the necessity of incorporation into united kingdom law, [1992] fam.law 373;timms,children's representation (sweet & maxwell, 1995) at 43 ff. see also arts. 8 and 12 of the european convention on human rights. 5timms, ibid at 421 & 422. see also freeman, children's charter and children's acts, panel news, december 1989,vo1.9,irchin where he intimated that children's rights rather than welfare should form the basis of decision making in this area; he argues that" ...the framework for children's rights is very different from those of welfare, which provides protection, and is essentially paternalistic. a children's rights framework sees children as active participants in social processes. rights are valuable commodities, important moral coinage. they enable us to stand with dignity, if necessary to demand what is our due without having to grovel, plead or beg. a world with claim rights is one which all persons are dignified objects of respect. love, compassion, having the child's best interests in mind are important values but they are no substitute for rights." 6 see mnookin and szwed, "the best interests syndrome and the allocation of power," in geach and szwed(eds.), providing civil justice for children (e.arnold, 1983) at 7. 102 children's rights an analysis of recent decisions relating to the future upbringing of children reveals, most explicitly, the problematic nature of judicial interpretation of the "best interests" principle. the latest of these decisions, re m (child's upbringing), epitomises the predicament which appears to be inherent in this realm of decision making. 7 in re m, the court of appeal, was charged with the onerous responsibility of determining the future upbringing of a ten-year old child of zulu origin who had been in the care of an english foster mother since he was eighteen months old. the court ordered the child to be returned, against his vociferous and explicit wishes, to live with his biological parents in soutll mrica. the house of lords refused leave to appeal, giving no reason for its refusals and an application was made under rule 369 to the european commission of human rights in strasbourg for a stay of the order on tlle grounds that it violated article 12 of the european convention on human rights. the commission's request for an interim suspension ofthe order was refused by the court of appeal, which had reserved the case to itself, notwithstanding the statement of the attorney general to the court that the government took a neutral approach to the request. the child was, therefore, forced to leave the english family with whom he had lived for the last eight and a half years and was taken, protesting vehemently, by police officers and deposited onto a plane en route to a most uncertain future in a south african township with a family whom he hardly knew and whose language he did not speak. to 7 [1996] 2 f.l.r. 441 . g see (1996) n.l.j. at 669 where concern was expressed at the failure of the house of lords to give a reason for this refusal. 9 rule 36 of the commission's rules provides that "the commission, or where it is not in session, the president may indicate to the parties any interim measure the adoption of which seems desirable in the interest of the parties or the proper conduct of the proceedings before it. see generally, merrills, the development of international law by the european court of human rights, (2nd.ed., manchester university press, 1993). 10 the child was handed over to the official solicitor by the appellant. he was so distressed that he could not, at first, be put on the flight; he had to be calmed down ror 24 hours before eventually flying to his new home, see (1996) n.l.l. at 669; the daily telegraph 6th.may,1996. 103 the denning law journal the circumstances in re m are not uncommon. 1 \ they relate to a dispute between biological parents, who had entrusted their young child to a caretaker or foster mother of a different cultural origin to themselves, and that mother, who, by the time the conflict came before the court, had become emotionally attached to the child and vice versa. these situations raise complex questions regarding the cross cultural rights of such children when their best interests are under judicial consideration. the facts in re mare to be found in the judgment of neill l.j. 12 the child in question, referred to as p, was born in south africa, in 1986, to an unmarried zulu woman who worked for the appellant, an english woman of south african descent. in 1987, p, aged eighteen months, was due to return to his mother's village in order to comply with the apartheid regulations then in force. the appellant and p had already formed a strong psychological attachment, as indeed, had the appellant and pis biological mother. with the explicit consent of both p's mother and father, the appellant took p, to live with her in her home as a member of her family and accepted responsibility for his upbringing and education. this type of informal guardianship arrangement where a wealthier family take on the responsibility of caring for and educating children of poorer families is not an uncommon state of affairs in many african societies.13 meanwhile, pis mother continued to live in the servants' quarters attached to the appellant's house. p's father was a sporadic feature in p's life; he lived elsewhere, having formed a relationship with another woman by whom he had a child. in 1992, the appellant became concerned about the political situation in south africa. she wished to take p and his mother to england with herself and her family of three daughters. p's mother refused to leave south africa but she and 11 see e.g re b (minors), unreported, court of appeal 24th.october, 1996; re b (adoption:child's welfare) [1995] 2 f.c.r. 749; j v.c [1970] ac 668. 12 supra. n.7 at 442ff. 13 nelson mandela, in his autobiography, describes being sent away from his mother, at the age of nine, to live with chief jongintaba dalindyebo, a stranger to him, albeit a member of the same tribe. mandela became a member of his family and was educated and cared for by the chief who became his guardian and mentor. he rarely returned to the rural area in which he grew up until late in life. his family used to visit him in the chiefs house and for many years mandela felt alienated from his rural cultural origins. (mandela, a long walk to freedom, at 13 ft). see also the guardian 7th.may, 1996 at p.16; forna, the independent 12th.may, 1996 at p.l0. 104 children's rights pis father signed a document in which they specifically agreed that p could accompany the appellant to england. after the family's arrival in england, the appellant contacted p's parents to discuss the possibility of adopting p. at first, p's mother was ambivalent but when formal adoption proceedings were instigated by the appellant, both she and p's father objected. the case, at first instance, came before thorpe j. who acknowledged that he was faced with a tragedy which the appellant and p's parents had unwittingly created, a child, with a strong emotional attachment to the appellant and her daughters, who during a very formative period of his life had neither lived with nor had had more than minimal contact with his biological parents for at least nine years. 14 thorpe j. recognised that he was faced with a choice between solutions all of which were unsatisfactory, and in some degree damaging or risking damage to p's welfare. thorpe 1. had been urged to base his decision on the judicial principle advanced by lord templeman in re kd, in which he stated that: "the best person to bring up a child is the natural parent. it matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not endangered."ls according to thorpe j., the view espoused in lord templeman's speech begged the question of the identity of the natural parent when, as in re m, a child like p, had two psychological parental figures both of whom were female and one of whom was also the biological parent. although the concept of a psychological parent is a common term amongst child psychologists, it is unusual for a member of the judiciary to acknowledge this dual aspect of the parental role which may be divided between two individuals rather than united in one. 16 having taken this somewhat liberal and enlightened approach, thorpe j. emphasised that his decision must be made not on the basis of biological parenthood but on the basis 14 supra.n.7 at 454. is [1988] a.c. 806 at 812. 16 see e.g goldstein, freud and solnit, beyond the best interests of the child, (freepress; collier-macmillan,1973) at l2ff, where the term psychological parent is used and functional definitions of the concepts of biological and psychological parent-child relationships are discussed. 105 the denning law journal of the paramountcy of the child's welfare and on no other principle. ]7 in spite of this assertion, thorpe ],'s judgment establishes that he, at least implicitly, proceeded to treat the matter as dependent on the contractual arrangement between the parties with respect to their perceived proprietary rights over p. p's parents maintained that the understanding between them and the appellant was that p would remain in england with the appellant for an approximate period of five years beginning in 1986, when the political unrest, perceived to exist at that time, might be expected to have stabilised. they further alleged that the arrangement was conditional on the appellant organising reciprocal visits between p and themselves and that as the appellant had broken the condition, p should be returned to them as soon as possible and they would take full joint responsibility for him. the appellant, however, claimed that the agreement was for an indefinite period but, at least, for the duration of p's education. thorpe j. readily understood the confusion between the parties perception of the nature of the agreement and suggested that reality lay somewhere between these two extremes. nevertheless, he accepted p's parents version of the contract and the conditions laid down to preserve his links with them, his biological family, and his zulu culture. he recognised that the appellant had not fulfilled these conditions and that she bore a heavy responsibility for this dereliction. such confusion between the parties' understanding of the arrangement may be indicative of the cultural differences and expectations of their respective societies. p's parents belong to a community where the term family has a broad meaning and children may be brought up by any member of the extended family, tribe or other patron, in a type of informal guardianship arrangement, whilst retaining some link with their biological parents. ]8 the appellant lives in a world where children are viewed, primarily, from both a social and legal standpoint as the responsibility of their biological, or adopted nuclear family; ]9 abdication of 11although the appellant had applied for an adoption order which she subsequently withdrew in the course of the hearing, and a residence order, the case was considered from the outset under the children act 1989 and not the adoption act 1976. the wording of s.6 of the adoption act directs the court to give first, rather than paramount consideration to the welfare of the child throughout its childhood and, so far as is practical ascertain the child's own wishes and feelings about the decision, giving due consideration to them having regard to his age and understanding. 18 see supra.n.ll. 190ne of the guiding principles of the children act 1989 is that wherever possible children should be brought up within their own families, see timms, supra.n.4 at 6. 106 children's rights this responsibility may lead to legal intervention. furthermore, there is no guarantee that a foreign child will be allowed to remain in the united kingdom, in the care of a non-biological parent, unless he is legally adopted by that parent. 20 english law and culture would appear to prefer neat and formal solutions. thorpe 1. had the benefit of the expert evidence of a consultant child psychiatrist whom the official solicitor had been given leave to consult. the psychiatrist had identified three possible routes forward for p; first, adoption by the appellant; second, an immediate return to his parents; third, a phased preparation for an eventual return to south africa, during which links between p and his parents would be restored, and any final decision about p's future would be postponed until the five-year period, found to have been agreed between the parties, came to an end. the psychiatrist favoured the latter solution. he was well aware of p' s explicit desire to remain with his english family and whilst acknowledging that certain benefits would accrue to p from being united with his family of origin and his zulu culture, he, nevertheless, stressed the potential damage of removing p from his english family in haste.21 having reviewed the psychiatrist's evidence which he found persuasive, profound and wise, thorpe 1. was, nonetheless, unprepared to adopt, in its entirety, the psychiatrist's preferred solution. thorpe j. rejected adoption, as indeed had the appellant who had abandoned that application, towards the end of the hearing, and continued with her application for a residence order. thorpe j. also rejected an immediate return of p to his parents. he accepted the dangerous emotional and psychological consequences of forcing an immediate severance of p's relationship with the appellant. nevertheless, he stressed the primacy of the arrangement between the parties, which he accepted envisaged a retention ofp's zulu links and decided that p should return to his parents in 1997 unless there was some totally unforeseen intervening event. he was not prepared to postpone what he saw was an inevitable outcome for p, a zulu cultural future. 22 on that basis he attempted to lay down a master plan to which the adults should work to re-establish links between p and his parents and culture and thereby preclude the need for further argument in 1997, when a review would take place to determine 20 had the appellant not stated that she wished to adopt p, the immigration authorities would have been unlikely to have granted p leave to enter and remain in the united kingdom. see also re b supra.n.ll at 783 & 785. 21 supra.n.7 at 460ft'. 22 ibid. at 449. 107 the denning law journal the date and circumstances ofp's return to south mrica. the appellant was ordered to pay for two return trips to south mrica for p; pay for zulu language lessons for him and pay for a return trip for his mother to visit him in london once a year. in the meantime p was to remain a ward of court. certain anomalies in thorpe j.'s judgment laid the basis for an appeal. at least three passages in the judgment suggested that, in 1997, it might be necessary to re-open the question ofp's future. first, purporting to accept the principle embodied in section 1(3) of the children act 1989 that the wishes and feelings of the child should be taken into account, thorpe 1. had accepted that if, in two years time, the appellant remained prepared to educate p in london and p wished to remain, that would have to be taken into account. in his opinion any such professed wish on the part of p would have to be very stringently scrutinised to ensure that it was truly his and did not result from external influences. it is somewhat surprising, given the manner in which thorpe 1. had emphasised the importance ofp's zulu culture, that he was prepared to take this approach. it is even more astonishing that he acknowledged the need to look at p's wishes in 1997 but apparently ignored them in 1996. second, thorpe 1. accepted that p's parents and the appellant might both wish to renegotiate for p to remain in england after 1997. third, he recognised that there was a need for p's parents to prove the stability of their relationship and their material future in south mrica. on the grounds of these anomalies the appellant claimed that the 1997 review should be a general review ofp's future and not be, merely, limited to the determination of the date and circumstances of his return to south mrica. p's parents cross-appealed for the immediate return of p or for a further review within the next few months on the grounds that the agreement relating to p's stay in england had been contravened. they maintained that undertakings with respect to the financing of visits had not been met; there had only been one visit by p to south africa in september 1995; the appellant was now unemployed and in receipt of income support; she was not co-operating with them and p's links with his homeland had become tenuous. in the court of appeal, neill and ward l.j1. upheld the somewhat dubious principle, which has gained a substantial judicial following in recent years,that the natural parents of a child are accorded a special position in law. 23 they 23 see e.g. the approach of lord donaldson in re h (a minor) (custody: interim care and control) (1991] 2 f.l.r. 109 at 112 in which he stated that" ... it is not a case of parental right opposed to the interests of the child, with an assumption that parental right prevails unless there are strong reasons in terms of the interests of the child ...there is a strong supposition that, other 108 children's rights concluded that this principle had not been given sufficient weight by thorpe j.. they accepted the view, expressed by waite l.j. in re k (a minor) (custody), that a court will not take away a natural parent's rights unless it is satisfied that the child's welfare requires it. 24 the tenn parental right, according to waite l.j., is not a proprietary term but rather describes ''the right of every child, as part of its general welfare, to have the ties of nature maintained wherever possible with the parents who gave it life." 25 the court of appeal also rejected thorpe j.'s radical and infonned interpretation of the tenn "natural parent" as inclusive of both psychological and biological parents and limited its meaning to biological parents. the approach of the court of appeal, in upholding the primacy of the biological parents' rights, in re m, is regrettably regressive; it is in sharp contrast to the leading case of j v c in which lord macdennott, more than twenty-five years ago, stated that "the child's welfare is to be treated as the top item in a list of items relevant to the matter in question;" 26 the house of lords upheld the decision of the trial judge and the court of appeal that biological parents have no unimpeachable rights. the house of lords concluded that the first task of any court was to consider the child's welfare, at the time of the hearing and assess his needs. only after that process had taken place could a decision be made with respect to the child's future caretakers. thus, a ten-year things being equal, it is in the interests of the child that it should remain with its natural parents." see also cretney, principles of family law, (6th.ed., sweet & maxwell, 1997) at 719; timms supra. n.4 at 22ff. 24 [1990] 2 f.l.r. 64 at 70. see also in re h (a minor) (custody: interim care and control) ibid.; in re k (a minor) (wardship:adoption) [1991] i f.l.r. 57 at 62 where butler sloss l.j. stated that "[t]he mother must be shown to be entirely unsuitable before another family can be considered otherwise we are in grave danger of slipping into social engineering."; in re w (a minor) (residence order) [1993] 2 f.l.r. 625 at 633 where balcombe l.j. held "...it is the welfare of the child which is the test, but of course there is a strong supposition that, other things being equal, it is in the interests of the child that it shall remain with its natural parents, but that has to give way to the particular needs in particular situations." 2scf the approach of lord scarman in gillick v. west norfolk and wisbech area health authority and the d.h.s.s. supra.n.3 at 189 "... parental rights are derived from parental duty, and exist only so long as they are needed for the protection of the person and property of the child." 26 supra. n.ll at 710. 109 the denning law journal old child who had lived with his english foster parents for eight and a half years remained with them rather than being returned to his biological parents who were living in spain. although the court of appeal asserted that the so-called rights of p's biological parents were not detenninative of p' s future upbringing and maintained the paramountcy of the welfare principle, its decision belies this view. ward l.j. considered p's welfare in the light ofthe psychiatrist's report.27 he maintained that he was under no illusions whatever about the harm that would result if p were to be returned to south africa. he would be forced to exchange the comforts of life, in maida vale, with the appellant, for the comparative discomforts of the township of brakpan in south africa. he would have to face the uncertainties about the stability of his biological parents' marital relationship; their housing conditions; their economic security and personal safety. in the light of these concerns, ward l.j. expressed the rather vain conviction that he was "sure that p would cope with all of that." these risks apart, ward l.j. proceeded to voice, in the words of the psychiatrist, the real harm which he accepted might befall p: "[i]fyou take him away now from the (appellant's) family against his will, then the risk is that he will go downhill emotionally, he will go downhill psychologically, he will pine for (the appellant) and (her girls), he will get grumpy and disagreeable, he will not quickly grasp ndelele and mrikaans, he will be a bit of an outsider with the group when he gets there and everything may go horribly wrong ... to remove him in the middle of a turmoil of disagreement would be very profoundly damaging, to such an extent that the boy might never recover his poise and psychological well-being and confidence."28 this recognition of the strong likelihood of serious emotional harm resulting to p if he were to return to south africa did not deter ward l.j. from reaching the rather astounding conclusion that p should be sent back immediately. ward l.j. believed that there was no realistic hope of achievement of the psychiatrist's optimistic expectations that a delay in deciding the future of p would be 27 supra.n.7 at 456. 2m ibid. at 460 . 110 children's rights beneficial for all parties and might even help the parties to reach an amicable arrangement whereby they could all participate in pis future. indeed, ward l.j. stated that any delay in determining p's future was likely to prejudice his welfare but did not specify how. 29 it is of note that both thorpe j., at first instance, and neil and ward l.jj., in the court of appeal, attached immense significance to the importance ofp's retaining his cultural links with his perceived zulu heritage. they also stressed the appellant's responsibility for weakening these links. the child psychiatrist's report had expressed the belief that: "[f]or p to have the gain of an education in england carries with it the weakening of his zulu identity, his knowledge of the zulu language and culture .... jfhe is brought up in the zulu culture, he has the gain of identity with his family of origin ... _ ...for p to be living in london he is separated from his linguistic culture and racial roots .... ...p's cultural zulu heritage is of great importance to this little boy and is going to be central to his identity as he grows up in adulthood ... p should continue to grow up knowing himself to be a zulu boy, identified with zulu traditions, knowing that he is south african and feeling identified and confident about that country.,,30 even ifit was a legitimate concern of the court to prevent p's loss of contact with his cultural origins, such a concern cannot be ameliorated at the expense of a child's, well documented, need for unbroken continuity of affectionate and stimulating relationships with an adult if he himself is to achieve adult emotional stability.31 placing greater emphasis on the importance of cultural identity rather than emotional security may even lead to the very situation the court wished to avoid, p's cultural estrangement. children who are denied emotional security may respond to this threat "with fantastic anxieties, denial, or distortion of reality, reversal or displacement offeelings ...'l32 in any event, it should be noted that p had spent the major part of his life in a 29 see s.i(2) of the children act 1989. 30 supra.n.7 at 461. 31 see e.g goldstein, freud and solnit, supra.n.16 at 6. 32 ibid. at 12. 111 the denning law journal non-zulu world, even during his early years in south africa. his parents had consented to p being brought up, by the appellant, in her household, in a culture very different from theirs. they had also been willing to accept that, even if the appellant had kept to their view of the original arrangement and returned to south africa, p would have remained with the appellant to be educated by her in a white middle class suburb. in such circumstances he would inevitably have become alienated, to a considerable degree, from zulu culture. the court of appeal, by concentrating its attention on the agreement between p's parents and the appellant, and the issue ofp's cultural heritage, failed to consider the reality of the situation facing p at the time of the hearing and make an order which took into account all factors relevant to his future well being. it is not the task of the court, in decisions relating to children, to attempt to reverse the wrongs done by adults to each other or to artificially impose cultural links at the expense of a child's emotional stability. political correctness has no part to play in child care decisions.33 goldstein, freud and solnit maintained, as long ago as 1973, that the law has been slow to acknowledge the importance of a child's psychological well-being. they advance the view that the courts accept the paramountcy principle over all other principles when a child's physical well-being is in jeopardy; in other circumstances, however, the courts: "subordinate, often intentionally, his psychological well being to, for example, an adult's right to assert a biological tie. yet both wellbeings are equally important and any sharp distinction between them is artificial."34 the decision in re m confirms this observation. the stance taken by the court of appeal in re m, is illustrative of judicial 33 weyland, "attachment and the welfare principle" [1996] fam.law 686 at 688 suggests that "[t]he publicity surrounding re m might have discouraged a decision which would have been perceived by many as an endorsement of a modern form of colonialism." the international bar association's report on foreign adoptions (1991) highlighted the u.k.'s obstruction offoreign adoptions. it suggested that hostility from uk authorities is fuelled by a prevailing policy in favour of placing children for adoption with parents of the same race, culture and ethnic group, even where the child has had minimal contact from birth with his biological parents culture. 34 see supra.n.16 at 4. 112 children's rights ambivalence with respect to the welfare principle. it also draws attention to the problems which may arise when there is an implicit substitution of the principle of the primacy of the biological parent's rights for the paramountcy of the welfare principle accompanied by a subtle and dangerous reinterpretation of the meaning of parental rights. this approach relegates to second place the lodestar principle of the overriding importance of the child's welfare enshrined in the children act 1989. it elides the rights of children with the interests of their biological parents even when, as here, the child vociferously rejected the right to be permanently reunited with his biological parents; 35 children's rights are thereby negated. in such circumstances the child's views become, at best, a secondary factor and, at worst, irrelevant. a child who is of sufficient competence to make his views known that he does not wish to live with his biological parents, cannot be said to have a right to have "the ties of nature maintained." in these circumstances, there is a direct conflict between the best interests of the child and the so-called rights, however interpreted, of the biological parents. although it may not always be appropriate to allow a child's wishes to prevail, it is of vital importance that they are taken into account and that the child is made aware that the judiciary is sensitive to his desires. p was an intelligent, articulate ten year old, well aware of the crisis in his life and also cognizant of life in an mrican township; he had spent one month in 1995 visiting his biological family. p's future was decided without any real participation on his part in the decision making process. the court's decision was made about him rather than with him; such an approach to the best interests of the child is more likely to result in a child feeling punished by the court rather than cared for. it has been claimed that: "involving children in decision making increases their sense of identity, self esteem and personal autonomy. it enhances their sense of direction and gives them some sense of control of what are often distressing and traumatic events ...,,36 3sp wrote to the queen to ask her to intervene. he explained his concern: "i am going to be adopted but then the judge said that i have to go to south africa. my mum (sic) in london is fighting for me very hard and i told the judge i want to stay in london. i am nine years old and the judge thinks that he can think for me and that is wrong and you know that. i am asking you to help me fight back.". 36 see timms, supra.n.4 at 440. 113 the denning law journal moreover, children who have been involved in decision making, even if it does not ultimately result in their preferred outcome are more likely to feel engaged with the plan for their future. success rather than failure is the more likely consequence. the court of appeal's attitude in re m, suggests that certainty, clarity, immediacy and simplicity are all valued by the judiciary. certainly, these values are inherent in its implicit espousal of the concept of the primacy of the rights of the natural parents; a rapid unchallengeable decision can be reached. any serious consideration of the concept of the real welfare of the child and the possibility of self determination by the child, involves the court in a discretionary, lengthy, more onerous and uncertain process which may be more easily open to challenge, a process for which it may not have the requisite training. 37 the child psychiatrist had recognised that an immediate, clean, surgical decision to send p back might be convenient for stopping the litigation, but less beneficial to p. indirectly, it would also have been less helpful to p's natural parents who would have to deal with the distressing emotional consequences which were likely to result to p from such a decision. had the court followed the recommendations of the psychiatrist, p would, at least, have had two further years of stable family life. even if, at that time, no amicable resolution had been reached between the parties, he would be slightly more mature and, maybe, more able to cope with a planned return to his biological parents' culture. since the decision in gillick 38 and the implementation of the children act 1989, there has been an ambivalent, paternalistic backlash with respect to children's participation in decisions about their future upbringing. an explanation for this reaction has been advanced, suggesting that the concept of children's participation in decision making: "arouses anxiety in adults who fear this can only serve to complicate already complex and onerous problems associated with determining matters of children's welfare. the majority of those 37seegoldstein, freud, solnit, supra.n.16 at 6 "... [the law] is confronted with a highly complex decision which involves implicitly, if not, explicitly, a predictor about who, among available alternatives, holds most promise for meeting the child's psychological needs. psychoanalytic theory confirms the substantial limitations on our capacity to make such a prediction. yet it provides a valuable body of generally applicable knowledge about a child's needs, knowledge which may be translated into guidelines to facilitate making decisions that inevitably must be made." 38 gillick v. west norfolk and wisbech area health authority and the d.h. s.s. supra.n.3. 114 children's rights currently in authority over children have few personal experiences of being allowed to participate in key decisions made about their lives as children ... many of those adults, if pressed, have only a passing intellectual commitment to the concept of children's rights and participation. deep down, their emotional reality is that children benefit from more control ... and that adults generally, and genuinely, know best. it is easier to engage in intellectual discussions about the competence of the child than to embrace a philosophy and model of service provision which may necessitate a searching reappraisal of one's own childhood and child rearing practices."39 since the ratification of the un convention on the rights of the child in 1991, the uk government has a duty to produce a regular report on its achievements and shortcomings in the field of children's rights. the first report in 1994 was somewhat self satisfied and self congratulatory. 40 in particular it maintained that the principles in the children act 1989 relating to the paramountcy of the welfare of the child and the right of the child to have its voice heard, conformed with articles 3 and 12 of the convention. in the light ofp's experiences and the precedents cited in the decision to determine his future, such self satisfaction is unwarranted. the children's rights development unit set up by the government to monitor the implementation of the un convention would share this view. in 1994 it published 14 reports. the reports drew attention to the shortcomings, in certain areas, relating to children's rights in the united kingdom. report 11 stressed the right to be consulted to a nationality and identity. it suggested that the scottish law commission's proposal, that: "...before a person reaches a major decision which involves fulfilling parental responsibility, or exercising a parental right, the person shall, so far as is, ascertain the views of the child concerned regarding the decision and shall give due consideration to those views taking account of the child's age and maturity''''' 39 timms, supra.n.4 at 106. 40 the uk's first report to the un committee on the rights of the child (february 1994)hmso. 41 report on family law, scottish law commission, no.135, (hmso, 1992). 115 the denning law journal should be incorporated into united kingdom legislation. 42 this has now been done in scotland at least.43 many western societies have set up institutions to oversee policy, legal and practical issues relating to children. 44 proposals have been made to create a children's rights commissioner in the united kingdom. the task of the commissioner would be, inter alia, to ensure that children's rights and interests are taken into account to a greater degree than at present and to secure redress for children whose rights have been infringed. 45 the proposals have not been implemented. ill the meantime, what has happened to p? his future continues to remain unresolved; he has been unable to adapt to life in south africa. his biological parents have recognised his emotional distress and on 6th.december, 1996, they sent him back to live with his english foster mother and her family in london. 42uk agendafor children (children's rights development unit, 1994) para. 4.7.9 at 41.. 43 see s.6 of the children (scotland) act 1995. 44 see timms, supra.n.4 at .51. 45 rosenbaum and newall, taking children seriously: a proposal for a children's rights commissioner (caloustie gulbenkian foundation, 1991) at 5. 116 pardoning and mercy jonathan burnside* "dieu me pardonnera ", said the dying heine, "c 'est son metier. "legal philosophers and criminologists would ask whether it is not also the job of some secular authority. in the light of recent discussion about the nature of forgiveness and mercy, i we consider what sorts of reasoning might justify pardoning and mercy within the criminal justice system. pardoning 'pardoning' is a loose word which needs to be considered in both its legal and colloquial sense. first, to consider what pardoning means in its legal sense. on the view that the meaning of law is interpretative, we can identify several interpretations of this legal concept. in choosing the best interpretation we shall be following the two-stage test proposed by ronald dworkin in law's empire.2 this will involve testing each interpretation to see if it satisfies the twin constraints on 'fit' and 'appeal'. thus the correct interpretation will be the one which provides an accurate description of current legal practice and which also presents the legal concept of pardon in its most morally appealing light. the first interpretation draws on judicial utterances to explain what pardoning means. according to the judiciary, forgiveness is central: "the essence of a pardon is the forgiveness of something that has been done.' '3 *doctoral student, university of liverpool. i am very grateful to dr. n. e. simmonds, prof. n. walker and mr. a. j. weir for their comments on earlier drafts of this essay. any mistakes that remain are the sole fault of the author. i. see jeffrie g. murphy and jean hampton, forgiveness and mercy (cambridge. 1988); nigel walker. why punish? (oxford, 1991); ross harrison, "the equality of mercy" in hyman gross and ross harrison (eds.), jurisprudence: cambridge essays (oxford, 1992) and n. e. simmonds, judgment and mercy (forthcoming) oxford journal of legal studies. 2. ronald dworkin, law's empire (london, 1986). 3. r. v. foster [1985] q.b. 115, at p.117. 13 pardoning and mercy were it not for the first stage of the dworkinian test one could be deceived into thinking this to be true. for the judicial interpretation of the meaning of pardon is not a happy fit with legal practice. the royal pardon is almost always reserved for cases where there is real doubt about the justice of the conviction. this is presumably why the existence of a 'scintilla of doubt' led only to a commutation of the death penalty. then, as now, the home secretary will only grant a pardon ifhe is satisfied that the individual is innocent. forgiveness cannot truly be at the heart of the legal pardon because, at the very least, forgiveness is always a response to harm that has been done.4 there is no sense in 'pardoning' someone for something they have not done. as rolph writes: "it is as though you or i, moved by the desire to knock a man down, carelessly knocked down the wrong one; and then, rather grudgingly helping him to his feet explained that we were prepared to consider conferring upon him. . . our pardon for being the wrong man.' '5 thus this interpretation of pardoning falls at the first hurdle. this does not necessaril y mean that forgiveness has no part in the criminal justice system, but it means that if it does, the legal con~ept of pardon is not an example of it. the second interpretation of the legal 'pardon' is offered by rolph who sees it as a piece of "face-saving"6 on the part of the courts. he argues that since most countries share "a traditional belief that the courts represent god [or] judicial infallibility ... failure in such a system is simply not to be spoken of."7 thus, although we are prepared to accept that mistakes are possible in a court of law, the process of correcting failures needs to be 'dressed up' by the use of such words as pardon. this interpretation passes the 'constraint on fit' test by providing an accurate description of current legal practice. in no sense is the legal pardon to be formally taken as an acknowledgement that a mistake has been made. as morris cj puts it: , , [the pardon] contains no notion that the man to whom the pardon is extended never did in fact commit the crime. "8 even the payment of compensation is made ex gratia and, in the words of one home secretary, major gwilym lloyd-george: "it ... does not imply that there has been any fault or neglect on the part of the authorities. ' '9 4. jean hampton, "forgiveness, resentment and hatred" in jeffrie g. murphy and jean hampton, forgiveness and mercy (cambridge, 1988), pao. 5. c.h. rolph, the queen's pardon (london, 1978), p.140. 6. ibid., p.l. 7. ibid., p.140. 8. r. v. cosgrove [1948]. cited in r. v. fosler [1985] q.b. lis al p.128. 9. c.h. rolph, the queen's pardon (london, 1978), p.lo. 14 pardoning and mercy however, whilst this interpretation succeeds descriptively, it fails the second stage of the dworkinian test since it does not present the concept in a morally appealing light. yet there is a third interpretation to be considered. by looking at its practical effects, the legal pardon can be seen as the remission of the legal consequences of an individual's conviction. this is a sounder interpretation than either of the preceding two. unlike the first it can logically apply even where the accused man is innocent. it confines itself solely to the legal consequences of the conviction and it is thus no objection to claim that a man may be convicted for a crime of which he is innocent. it also succeeds on both dimensions of interpretation by satisfying the constraints on fit and appeal. first, it succeeds descriptively by providing an accurate description of current legal practice. the decision of the court of appeal in r. v. foster (1985) is authority for the view that a pardon releases the individual from the legal consequences of the conviction but not from the conviction itself.lo second, it succeeds prescriptively by presenting the legal pardon in its most morally appealing light. for on this interpretation, pardoning is to do with securing justice. under the current separation of powers it is the metier of the judiciary to pronounce judgment on the individual and, where a punitive sentence is passed, for the executive to carry it out. pardoning may therefore be justified on the ground that one cannot expect the executive to punish if it is satisfied that the individual is innocent. pardoning is part of its job because punishment is part of its job. it may be argued that the reason why the home secretary cannot be required to punish a person he is convinced is innocent is because he owes a duty to some authority higher than the judiciary. within the framework of secular authority one might want to call this justice. this justification goes some way towards clearing up some of the misconceptions which have bedevilled writers on the subject. it is a standard criticism, which judges themselves have sometimes made, that the queen's pardon removes "the consequences of a conviction, but does not assert that the person convicted was in fact innocent of the crime charged. "11 yet on this justification of pardon, how can it do otherwise? the job of the judiciary is to pronounce upon the defendant's guilt; that of the executive to carry out the judgment of the court. where the executive can no longer carry out its task, because of its need to secure justice, it must release the individual from the legal consequences of his conviction. but it cannot pronounce upon his guilt because it is not the proper organ to do so. unless his record is reversed for error by the criminal division of the court of appeal, or unless he can promote a private act of parliament then, for legal purposes, he must be guilty. one judicial act may only be upset by another. it is not possible for the crown to set aside ajudgment of the court. this same justification also disposes of arguments that pardoning is unjustified because it is a constitutional "anomaly" 12 as well as reasoning that it is wrong in 10. r. v. foster [1985] q.b. 115. 11. quoted in c.h. rolph, supra n.9, p.87. 12. quoted in c.h. rolph, supra n.9, p.75. 15 the denning law journal principle to go outside the law to secure justice. 13 as this justification of pardoning shows, there are occasions when it may be necessary to do exactly that. so much, then, for the justification of pardoning as a legal concept. there is, however, another sense in which the word pardoning is used and with which it is often confused. in colloquial terms a pardon is "the passing over of an offence without punishment. "14 compared with its correct legal interpretation it is a very loose word which seems to straddle both mercy and forgiveness. in one sense, the colloquial 'pardon' may be seen as the practical expression of the characteristic of mercy. in another, it can just as easily be seen as a synonym for forgiveness. it could mean either but it cannot mean both for mercy and forgiveness are distinct terms. no doubt the question of which of the two the colloquial pardon most closely resembles is largely determined by context, but this is not so with the legal interpretation of pardon. to which is it more closely aligned mercy or forgiveness? plainly, the legal pardon is distinct from both. it is not the equivalent of mercy because its upshot is not to sentence a guilty person to less than he deserves but to release an innocent person from the consequences of a punishment he never did deserve. neither is it, as we have seen, like forgiveness because forgiveness is a moral response towards something which is blameworthy, not towards something which is blameless. is yet there is a sense in which one could characterise the legal pardon as having more in common with the concept of mercy than the concept of forgiveness. one of the characteristics of mercy identified by jeffrie murphy and which, in his view, distinguishes it from forgiveness is the fact that mercy, once done, is done for all time and never needs to be repeated. 16 in the same way, an individual can only ever be pardoned once in respect of any particular offence. to conclude therefore, the legal pardon may be justified as a means of securing justice within the present criminal justice system with its inherent separation of powers. in this it possibly owes more to the concept of mercy than it does to forgiveness, although at the level of ordinary language these distinctions are sometimes blurred. thus we may say that pardoning is part of the 'job' of secular authority, but is the same also true of mercy? mercy first, to be clear about what mercy means. writers dispute as to whether the word is capable of sustaining an autonomous meaning at all; but jean hampton has offered a definition which will serve for the purposes of this essay. she defines mercy as "the suspension or mitigation of a punishment which would otherwise be deserved 13. ross harrison, "the equality of mercy" supra n.l, passim. 14. oxford english dictionary, (oxford, 1969). 15. jean hampton, "forgiveness, resentment and hatred". supra n.4, p.4d. 16. jeffrie g. murphy, "forgiveness and resentment", supra n.4, p.21. 16 pardoning and mercy as retribution and which is granted out of pity and compassion for the wrongdoer. "17 it will be obvious that, in accepting this definition, we must narrow the range of our enquiry to the question of whether mercy can ever be the job, in part or in full, of a secular authority which subscribes to a retributivist theory of punishment. the question of whether mercy can be justified within a utilitarian system, whilst important, is not considered. mercy is different from forgiveness. forgiveness is the adoption of a changed moral attitude towards the offender which may result in external action but which need not. elizabeth moberley points out that it is possible to forgive and still believe that the offender should suffer the full penalty. 18by contrast, mercy is an action: it must be demonstrated. it always involves treating the offender less harshly than he or she deserves. 19 according to murphy, one must have locus standi to forgive.20 thus nigel walker thinks it is necessary to distinguish between "interested" and "disinterested" forgiveness; that is, between the foregoing of personal resentment and the suppression of moral indignation.21 by the same token, we can say that one must also have locus standi to show mercy. furthermore, standing to forgive, or to show mercy, is just as essential outside a legal system as within it. thus, in the extra-legal world of private vendettas, for example, one can act mercifully by refraining from exacting revenge. mercy and forgiveness do not just apply to offical punishment. but in relation to official punishment, it is hard to see how any secular authority could ever possess the necessary standing to forgive. 'interested' forgiveness is the luxury of the victim and it is hard to characterise 'disinterested' forgiveness as true forgiveness. this leaves the question as to whether criminal justice officials possess the standing to show mercy and, ifso, whether there are any grounds on which the display of mercy can be justified. it is sometimes argued that mercy is not part of the metier of secular authority. harrison, for example, argues that a state cannot act mercifully because "states ought to be purely rational entities"22 and should therefore treat relatively similar cases in similar ways. to act mercifully is, on his view, to act irrationally because the "normal rules of justice have to be suspended so that some people are specially treated. "23 this is similar to the point made by murphy that "temperings are tamperings" .24secular authorities may not behave irrationally because this makes it impossible to enquire into and examine the reasons for action on the part of the state. there is thus no justification for mercy. in fact: 17. jean hampton, "the retributive idea" in jeffrie g. murphy and jean hampton. forgiveness and mercy (cambridge, 1988), p.158. 18. elizabeth moberley, suffering, innocenr and guilty (london, 1978), p.136. 19. jeffrie g. murphy, "mercy and legal justice" in jeffrie g. murphy and jean hampton, forgiveness and mercy (cambridge, 1988), p.167. 20. jeffrie g. murphy, "forgiveness and resentment" supra n.4, p.21. 21. nigel walker, why punish? (oxford, 1991), p.1 ]5. 22. ross harrison, "the equality of mercy " , in hyman gross and ross harrison, jurisprudence: cambridge essays, (oxford, 1992), p.107. 23. ibid., p.108. 24. jeffrie g. murphy. "mercy and legal justice", supra n.19, p.167. 17 the denning law journal "only by forgoing mercy can we enable the state ... to behave like a fully rational entity, accountable for all its actions to the people over whom it has power. "25 harrison admits that this conclusion is "highly counter-intuitive. ' '26it certainly is. it is not counter-intuitive to claim that the state should not act arbitrarily or irrationally but it is counter-intuitive to claim that the state has no opportunities for acting mercifully. perhaps the reason why his conclusion seems to be counter-intuitive is because his conception of mercy is itself flawed. his definition does not seem to go beyond the statement that mercy is something which is irrational and that one can never therefore have a reason for acting in a merciful way. on this view, naturally enough, reason "squeezes out" mercy.27 yet this seems to be an excessively minimal definition. hampton's definition of mercy, above, is much more intuitive. however, it is not a wholly rational one. in reflecting something of mercy's claim to be a moral virtue, her definition explicitly recognises that the suspension or mitigation of punishment is motivated by feelings of compassion or pity. some writers have tried to take a less emotional view. alwynne smart, for example, characterises mercy as something which we call in aid when we are "compelled"28 to treat an offender less harshly than he deserves as a result of "the claims that other obligations have on us.' '29 according to smart an example of such an obligation would include the suffering which might be caused to an innocent party as a result of his receiving the full penalty. 30where this suffering is so great as to be "a major, even the main consideration" 3i a judge might be expe<:ted to show mercy. however such a definition, which would reduce mercy to a means of "resolving conflicts of duties"32 seems to fall rather short. although smart does grant that mercy is motivated by feelings of benevolence33 something stronger is required, namely that element of compassion or pity which enables one to empathise with the offender. thus the concept of mercy presents a dilemma. rational definitions of mercy seem unconvincing and minimalistic whilst more intuitive definitions seem to lead to the conclusion that mercy and retributive justice are irreconcilable. however it will be argued that mercy is properly the metier of secular authority. using hampton's definition, this reasoning accepts that there will always be a sense 25. ross harrison, 'the equality of mercy, supra n.22, p.1l8. 26. ibid., p.118. 27. ibid., p.122. 28. alwynne smart, "mercy" in h.b. acton (ed.) the philosophy ojpunishmem (london, 1969), p.227. 29. ibid., p.227. 30. ibid., p.222. 31. ibid., p.222. 32. nigel walker, supra n.21, p.116. 33. alwynne smart, "mercy", supra n.28, p.227. 18 pardoning and mercy in which the practice of mercy by the state is irrational, but suggests that its application by the courts need not be arbitrary. most writers accept that it is possible to justify mercy at the level of the individual. this is what murphy calls the "private law paradigm"34 the reason presumably being that individuals cannot show mercy in matters relating to the criminal law since only the state has the power to punish. an individual may wish to show mercy because he has sympathy with the wrongdoer and can see no reason not to treat the wrongdoer in a manner which he himself would want to be treated. plainly the circumstances in which mercy is shown, as well as its degree, are not rationally determined. this is not a problem because the individual is under no obligation to act consistently. murphy tries to justify differential treatment on the grounds that the relevant distinction between the treatment given to, for example, jones and smith is not some feature that distinguishes jones from smith but rather some feature that distinguishes the impact, on the individual, of mercy to jones from the impact, on the individual, of mercy to smith. but there is really no need for this. as harrison points out irrationality on this level can always be justified on the basis of respect for individual autonomy. 35 it is sometimes argued that what is justifiable for individuals, operating within the civil law paradigm, is not justifiable for the state operating within the criminal law paradigm. murphy rebuffs this argument by reasoning that: "if each citizen can show mercy individually when his individual interests are at issue, why may not all citizens justly join together and exercise mercy collectively when their collective interests are at issue?"36 he suggests that the individual's power to exercise mercy could be delegated to the judiciary and that this power could be exercised whenever the judiciary' 'believes" that the public "unanimously" so wishes them to acty the criteria for a valid belief are not outlined, but murphy seems to suggest that within this formula mercy could playa significant role. the proviso does not, for example, require the judge to be sure of the general will. as ajustification for the exercise of mercy by the state it raises practical difficulties but it is theoretically attractive. it highlights the shortcomings of harrison's argument which relies too much on a polarised distinction between the state and the individual. murphy's formula recognises that actions on the part of the state are willed by individuals acting, notionally at any rate, on behalf of members ofthe state. murphy's justification also obviates the danger, often cited as a criticism of mercy, that: 34. jeffrie g. murphy, "mercy and legal justice", supra n.19, p.l75. 35. ross harrison, "the equality of mercy", supra n.22, pp.1l7-8. 36. jeffrie g. murphy, "mercy and legal justice", supra n.19, p.178. 37. ibid., p.178. 19 the denning law journal "the judge who is influenced simply by the plight of the offender before him may lose sight of the fact that his job is to uphold an entire system of justice that protects the security of all citizens.' '38 by contrast, under murphy's justification the judge, or other secular official, is not acting on his own sentiments but "as a vehicle for expressing the sentiments of all those who have been victimised by the criminal.' '39 that there should be provision, at the level ofthe state, for individuals to express collectively the individual desire for mercy is justifiable because it is only the state which, for good reason, has the capacity to punish for criminal offences. there remains, however, one major sense in which the delegated capacity of the state to act mercifully can be distinguished from the individual capacity to act mercifully. whereas the individual does not have to behave consistently, the state must because it speaks with one voice. where it does not, the act of mercy may not be justified. as murphy notes, "once a reason, always a reason.' '40 the difficulty lies in articulating some compassionate grounds for showing mercy which can be consistently applied. if the grounds are not compassionate, then it is hard to distinguish mercy from mere extenuating reasons, such as provocation or duress. on the other hand, the need for compassion might itself seem to preclude the need for consistency. one approach might be to limit mercy to a speci fic class of persons, perhaps along the lines of the italian practice of showing mercy to pregnant women. this approach, 'class mercy', is similar to the way in which the prerogative of mercy has functioned historically in english law. as walker sees it, the purpose of this has been to introduce new 'class' or 'group' reasons for lessening punishment. in the past such groups included juveniles and infanticidal mothers.41 consistent compassion leads to consistent innovation. "any penal system which still has ... points of rigidity needs a device of this kind. "42 however, 'class mercy' suffers from the problem of reducing the deterrent effect of punishment among the particular group or class. thus, a better solution might be provided by the benthamite idea of 'sensibility' .43 this acknowledges that some offenders, depending on demographic and social factors and perhaps even on the circumstances of the case, are more sensitive to punishment than others. this formula, like the others, is compassionate and can be consistently applied; yet unlike the others, it has the advantage of leaving it up to the court to decide who is a member of the class. it is also wide enough to cover the wide variety of cases which are presented in the literature as requiring mercy. 44 38. ibid., p.168. 39. ibid., p.179. 40. ibid .. p.181. 41. nigel walker, supra n.21, p.117. 42. ibid .. p.ll7. 43. jeremy bentham, introduction to the principles of morals and of legislatioll (london, 1798). 44. see alwynne smart. "mercy". supra n.28. pp. 212-227 for some interesting examples. 20 pardoning and mercy in conclusion, mercy on the part of some secular authority may be justified on the ground that it is exercising the delegated capacity of individuals to act mercifully. the state has standing to show mercy but must always act consistently in doing so. the situations in which mercy is exercised as well as its degree cannot be defended on purely rational grounds. that would negate the element of compassion which is part of any meaningful definition of mercy. however, it should be possible for the state to act with both consistency and compassion. thus mercy is not "reasoned leniency, "45 nor is it a right for its basis lies outside the law. yet it is not beyond the scope of rules. as a result, mercy does not collapse into injustice because to act mercifully need not involve acting in a way that is arbitrary or capricious. 4s. nigel walker. supra n.2l, p.lls. 21 the judges and the vigilant state a. w. b. simpson'*' the title of this paper needs a little explanation. when i was approached on the possibility of giving it, i was kindly given a free hand in the choice of a subject, which could be related to any research i was doing, so long as this could, in some way or other, be related to the glorious revolution, and the bill of rights of 1689. now for some time i have been doing research into the detention of british citizens without trial under regulation 18b of the defence regulations during the 1939-45 war. indeed i used some of this research for a child lecture i gave in oxford in 1987.i of course i could not simply repeat this lecture, but it seemed to me that other parts of the material i have so far unearthed might be related to the required theme of this paper. let me try to explain how. outside ulster the glorious revolution of 1688-89, and the constitutional settlement which followed upon it, has long ceased to have any emotional hold on the british people generally, or on lawyers in particular. i should be surprised if many people in this room have, in the last ten years, if indeed ever, actually read in full the three constitutional documents which it generated: the heads of grievances of 2 february 1689, the declaration of right of 12 february2 and the bill of rights itself.3 let me assume that at least some of you are a little rusty on the matter, and simply quote to you a vision of what happened from a popular though scholarly book on the subject, written by g. m. trevelyan, and first published in 1938: james ii attempted to make the law alterable wholesale by the king. this, if it had been permitted, must have made the king supreme over parliament and, in fact, a despot. the events of the winter of 1688-9 gave the victory to the opposite idea, which chief justice coke and selden had enunciated early in the century, that the king was the chief servant of the law, and not its master; ·profcssor of law at thc univcrsity of michigan. thc child & co.. lecture 1989, printed by arrangement with professor simpson and child & co. 1. published as "rhetoric, reality, and regulation 188," and now available ill the 1988 denning law journal. 2. presented the following day. 3.1 w. & m. sess.2 c.2. see also l. g. schwoerer, the declaration of rights, 1689 (baltimorc, 1981). appendix 1 gives the text of the declaration and the reply of 15 february. dates given here are in old stylc. 145 the denning law journal the executant of the law, not its source; the laws could only be altered by parliament king, lords and commons together. it is this that made the revolution the decisive event in the history of the english constitution. it was decisive because it was never undone, as most of the changes of the cromwellian revolution had been undone.4 so there it is a permanent triumph for the rule of law and the sovereignty of parliament over the king, and the end of the threat of despotism. now of course since those days the personal powers of the monarch have diminished, and we now have a prime minister who, no doubt in a spirit of academic realism, affects from time to time the use of the royal "we" herself. but in spite of this tasteless linguistic aberration we must recognise that the position once occupied by the monarch has, in the intervening three centuries, been colonised not simply by the prime minister, but by what we call the executive ministers, civil servants and officials of one kind and another, forming an army whose size and complexity was unimaginable to the lawyers and parliamentarians who forged the settlement of 1689. they range from sir humphrey and his likes to those equivalents of feudal barons, the chief constables, and down to the vigilant officers who riffle through one's underwear at heathrow, officers soon, one hopes, to become largely redundant. now where do the judges fit into that settlement? by judges i do not mean judges like myself, a mere justice of the peace, but that narrow category once known as the twelve men in scarlet or the oracles of the law, and now hugely inflated to a current figure of well over a hundred. during the glorious revolution it was generally agreed that the independence of the judges needed to be safeguarded against removal from office at the pleasure of the crown. but time was short, and legislation was needed to make what was a change in the law. this was not in fact done until the act of settlement of 1701. the job of the judges was to subject the executive to the rule of law and preserve the supremacy of parliament, and this not as an end in itself, but to protect liberty. the purpose of judicial independence was the protection of english liberty. let me quote you what blackstone said about it.5 in this distinct and separate existence of the judicial power in a peculiar body of men, nominated indeed, but not removeable at pleasure, by the crown, consists one main preservative of the public liberty ... nothing therefore is more to be avoided, in a free constitution, than uniting the power of a judge with a minister of state. 4. g. m. trevelyan, the english revolution (home university library edition), at p. 165. generally see m. landon, the triumph ojthe lawyers: their role in english politics 1678-1689 (university of alabama press, 1970). see also w. a. speck, reluctant revolutionaries: englishmcll and the revolution of 1688 (oxford 1985). 5. gommclltaries i, 269. 146 the judges and the vigilant state awful things, he explained, went on in turkey because they had not grasped the importance of maintaining the distinct roles of judges and ministers, as was done in england. since 1701 only one rather downmarket judge, sir jonah barrington, has actually been formally removed by the procedure which was then established, and the occasional individuals who, because of drink, senility or whatever, have needed to be eased out of office have been given the old "heave ho!" by informal means, or have conveniently died or destroyed themselves. it is important however to appreciate that a tenured judge who avoids the grosser forms of bad behaviour has, in a real sense, nothing to fear from the executive, not even loss of his job and the generous pension which goes with it, much less anything more unpleasant, even though he reaches decisions which the executive does not like. there is however one important exception which has developed since 1701, and this exception may be important. it is loss of promotion. given the increase in the number of the oracles of the law the system has evolved so as to deprive those who have not made it to the court of appeal or above of most of their oracular status. in consequence promotion is valued in a way which was not true in the past. it operates as a pressure to conformity. formal judicial independence does not of course free judges from such pressure; indeed without it it is hard to see how we could have law at all. let me give two examples of the operation of such pr<:ssure. once, as magistrate, i and a colleague awarded costs against the police in retrospect perhaps wrongly. they did not like this, and for some months i found myself sitting exclusively in the fine defaulters' court, far from where the real action was. when i complained i was told it was just chance, but i was not convinced. my second example comes from john mortimer apparently the old bailey judges ate and perhaps still do eat their lunch wearing their wigs. no sane person would engage in such insanitary and aesthetically repulsive behaviour unless peer pressure to conformity was very powerful indeed. now formal judicial independence freedom from the sack, freedom from suit and freedom from grosser forms of pressure such as massive reduction of salary is something essentially negative. i think there is more to the conception of judicial independence than this. judicial independence also involves the idea that the judiciary should, through their decisions, function as a distinct force in government. by doing so they will both operate as a check or restraint upon the executive, and make their own contribution to the business of government by championing the virtues associated with the ideal of the rule of law or, as dicey once called it, the predominance of the legal spirit. these virtues include such notions as the notion of a fair trial, of access to the law, of openly administered justice, of rational decisions in conformity with professional tradition, of the voluntary character of criminal offences, and so forth. to be sure judges can only administer "the law", but the law embodies much leeway and these virtues are in any event part of it. to be sure too parliament may legislate in ways which are incompatible with them, but a judge who understands positive independence will 147 the denning law journal have a strong presumption that this has not been the intention. the effectiveness of the judiciary in discharging their functions in the constitutional scheme established by the glorious revolution will depend to a considerable degree on the status of the judiciary, and their distinction from the executive as "a peculiar body of men" and now women, a point to which i shall return. now let me tell you something about the rise of the vigilant state the state or the executive when it is engaged, or supposed to be engaged, in protecting us from espionage, terrorism and subversion. it does so in the name of liberty, but at the same time it is notorious that the apparatus involved threatens liberty, and notorious too that those involved in the business seem everywhere to engage in deceit and in illegal and criminal activity, on an uncertain scale.6 i take the expression "vigilant state" from the title of dr. bernard porter's excellent book, the origins of the vigilant state: the london metropolitan special branch before the first world war.7 here he traces the formation of a separate division of the london police force to deal with subversion; the original special branch developed between 1881 and 1884 in response to the activities of the fenians. today all police forces have their special branches, membership of which carries with it considerable kudos, though the metropolitan special branch is normally the one employed by the security service, whose officers are not constables. as dr. porter explains: ireland was the main cause of britain's fall from liberal grace in the matter of counter-subversion. for very many years her people had displayed a propensity for politically motivated crimes of unusual savagery, either because it was in their character, as many englishmen claimed, or because they were provoked into this by the nature of their relationship with the british government.8 curiously enough it was that great liberal, sir william vernon harcourt, home secretary from 1880-1885, who not only fathered the metropolitan special branch but rather fell in love with the sneaky world of agents, informers, and "tricky practices" with which we have become all too familiar. he has, i fear, been followed in this by others who should know better. as the fenian threat diminished, other dangers conveniently arose to ensure the continuance of special branch for example anarchism, and homosexuality, the latter only too familiar to the governing elite from their schooldays. by 1914 special branch had swollen to 114 officers, a figure which rose to 700 by the end 6. the principal importance of peter wright's spycatcher is that it has brought this into the open. in the proceedings in australia the crown was so nervous of specifying which of the many acts of illegality listed had occurred that it simply conceded the lot, claiming that this was simply done for the purposes of the litigation. it was hoped that this evasive technique would keep egg off the shirts of those involved. nobody was taken in. 7. london (1987). 8. at p. 26. 148 the judges and the vigilant state of the war.9 by then further perils had been constructed. a phantom army of german spies and saboteurs were thought to infest the land, a belief linked to characteristic british zenophobia. it has been argued with considerable plausibility that the fears of this period were much fuelled by a growing literature of spy stories. you will recall no doubt erskine childer's riddle of the sands, first published in 1903, a distinguished example of this genre, written not just for fun, but to convey a message. more influential were the ludicrous writings of william tufnellie queux, an individual unable to distinguish fact from fiction.lo his works fill seventeen columns in the printed british library catalogue, which is by no means complete, ii and include such titles as the indiscretions of a lady's maid. being some strange stories related by mademoiselle le bas, femme de chambre and the confessions of a ladies man. being the adventures of cuthbert broom of his majesty's diplomatic seroice. the story he put about was that he only wrote novels to finance his work as a sort of freelance spy. he was most proud of the influential the invasion of 1910, published in 190612 with an introductory letter from no less than field marshal earl roberts of kandahar. le queux claimed to have obtained a copy of a secret speech by the kaiser stating his intention to conquer britain with zeppelins; it contained this memorable and chilling passage: do you remember, my generals, what our never-to-be-forgotten field marshal gebhard leberecht von blucher exclaimed, when looking from the dome of s1.paul's cathedral upon the vast metropolis at his feet? it was short and to the point. "what a splendid city to sack!" in 1909 all this led to the establishment of the secret service bureau the ancestor of what is now called mis, though its proper title, insofar as it is possible to say, is the security service. 13 the turning point is said to have been an incident which took place in the home of a very disreputable mayor of canterbury, one frank bennett-goldney, m.p., athlone pursuivant, suspected by some of having 9. porter, supra n.7, p. 114. 10. 1864-1927. his entry in who's who noted as a hobby the appropriate "revolver practice". there is a life by norman st. b. sladen, published as the real le queux. the official biography of william le queux (london, 1938). the flavour of this work and of le queux's idiocies is caught by an account of a chance meeting between le queux and an elderly and ill british traveller, one charles askew, in the hotel marenta in mostar; he was "a studious man, a nature lover and a botanist, and he knew a great deal about wild birds". he also owned a battered tin box. le queux's suspicions were at once aroused: "le queux wondered if he were a crook in hiding; if so, what better district than herzegovina?". he turned out to be one of america's most famous multi-millionaires. 11. according to his biographer he wrote over a hundred novels. 12. originally serialised in the daily mail. 13. probably between 1912 and 1940 the united kingdom security service was conceived to be only one part of an imperial security service, run from britain and covering the whole empire except india, which of course had its own service. this, at least, was the belief of sir eric holt-wilson, who was its chief staff officer and deputy to sir vernon keli. presumably he knew. the whole subject is extremely murky, and all accounts of the structure of the service must be taken with caution. 149 the denning law journal been involved in the theft of the irish crown jewels in 1907.14 the victim of what appears to have been a practical joke, he thought he had found two german spies in the garden, and convinced the secretary of state for war, j. b. s. haldane, of the threat. 15 you may, if you wish, enjoy a pint of ale where it all happened, in the garden of what is now the abbots barton hotel.16 be the story correct or not mis had byjuly of 1914 expanded modestly to fourteen officers and staff, and has since then flourished mightily. by the end of the war it comprised 844 persons; by 1915 its work was assisted by, amongst others, the 1,453 persons staffing the postal censorship, and numerous others censoring telegrams. hand in hand with this increase in the numbers of persons engaged in counter-subversion was the development of a monstrous secret archive. just as the golden stool of ashanti was and indeed is conceived of as embodying the soul of the ashanti people, so the soul of counter intelligence resides in such an archive, and in recent times peter wright, or his ghost writer, has written feelingly of the religious awe which surrounded the registry of mi5 in his time, and no doubt still does today, where nicely brought up young ladies known as the registry queens attend upon it. 17 it all began before the first war when the chief threat was thought to come from german spies recruited from the resident alien population. so between 1910 and 1913 winston churchill, then home secretary, established, without parliamentary authority, a secret aliens register, and during the first war this expanded from 30,000 to 99,500 entries to include the names of 53,000 aliens, 12,000 women married to aliens, and and this is typical of the paranoid mentality of those involved no less than 34,500 british nationals suspected of having enemy blood. is naturally enough the institutions of the vigilant state were somewhat cut back in the inter-war years, and the focus of anxiety shifted towards bolshevism, pacifism, and in due course fascism. but the archive, like some obscene fungal growth which flourishes in darkness, continued to swell. so too did the collection of aliens' files held by the home office, and the archives of special branch. 14. for an account of this individual's activities see, f. bamford and v. bankes, vicious circle (london, 1965). 15. the story is told by c. andrew, secret seroice, p. 34. 16. as you enter this hostelry you may notice a door handle in the form of an elephant; the house (as westfield house) was originally the home of a general, sir david russell (1809-1884), who had seen service in india, commanding the fifth brigade at the second relief of lucknow. he apparently introduced the oriental plane tree to the city one is still to be seen in the cathedral close, and one existed in the garden of his house which originally extended over the new dover road. 17. p. wright, spycatcher (paperback edition, new york, 1988), at p. 47 calls it "the nerve centre of mi5 ... " and describes the system in his time, that is from 1955. a card index on "cope-chatterton" cards was used to locate individual buttcoloured personal files; there were also subject files, and what he calls duck egg blue list files. 18. a document apparently written by sir eric holt-wilson on his work in the security service says that by the outbreak of the war "he had compiled ... a register with full biographical details of over thirty thousand aliens and others [myitalics] who were considered potentially dangerous in the event of a war with germany and her potential allies": national archives rg 84 london embassy confidential file 711.2-8202b. 150 the judges and the vigilant state a curious picture of the development of mis was provided in 1940 to officials in the u.s. embassy in london by brigadier sir eric holt-wilson, who had just retired as chief of staff and deputy director after twenty eight years work in the service, which he had joined in 1912.19 sir eric had been much involved in the drafting of parts of the defence of the realm acts of the first war, and the regulations insofar as they dealt with counter-subversion, and he performed the same role in the early part of the second war; he had also claimed to have been the moving spirit behind the official secrets act of 1920. he had also apparently been in charge of the establishment of the registry. in july of 1940 an american official in the u.s. embassy, mark klemmer, briefed principally by sir eric, wrote a somewhat credulous memorandum on the fifth column in britain and the steps being taken by mis to counter its activities. the belief in the myth of a fifth column was widely held at the time. he recorded:2o one of the major activities of the security service is the maintenance in london of a central index of suspicious persons. this index contains the names of every person ever suspected in any part of the world of anti-british activity a total of 4,500,000 names.21 the index is freely used by british industry and government departments. there were some 250-300 persons in the service, of whom 100 were "officials" (i suppose this means "desk" officers as opposed to secretaries, drivers, tea-ladies etc.). he became almost lyrical with admiration over the way in which the security service had been set up: the english have done a very smart thing in connection with counterespionage, which might well be copied in the united states. unknown to the british public, unknown to the newspapers, and unknown even to most of the government officials (he does not even mention members of parliament) there has been in existence in this country for 31 years an elaborate 19. in 1940 sir vernon kell and sir eric lost their jobs. kell was two years older than sir eric and thought of himself as sacked; his deputy conceived of himself as having merely retired. 20. the memorandum and supporting documents are in n.a. rg 84 london embassy confidential file 711.2-8202b. these archives have been extensively weeded of documents originating from mis. 21. the figure appears incredible, and the members of the security service who briefed klemmer must have been trying to impress by dishonest exaggeration. to have reached this size in the course of twenty eight years 160,714 names would need, on average, to have been added annually (this would be from both britain and the empire) and i cannot believe that this happened. peter wright claims that when he joined the service in 1955 the number of personal files held was about two million, and if we assume that the cold warled to a considerable increase in numbers between 1945 and 1955 it would not be implausible to suppose that in 1940 the number might have been as high as a million. an uncertain number of personal files were destroyed by bombing in 1940. the numbering of personal files employed during the war employed five figure numbers for example the journalist claude cockburn's file was pf 41685, but this does not necessarily mean that the total number in the system was limited to five figures, since the figures may have been repeated for each letter of the alphabet, with a total capacity of 2,599,974. 151 the denning law journal organisation for the detection and prevention of the activities of foreign governments. and later he added: officials of the security service tell me that the success of the organisation has been due primarily to the fact that they have operated in complete secrecy. they declare that no british newspaperman has ever discovered the true scope of the organization. and so it was that big brother came to be able to watch us all, and although it is certainly the case that the vigilant state all began as an aspect of the irish question, it was the conflicts with germany which led to the consolidation of its apparatus, and the two wars of this century, particularly the second, which enabled the executive, in the course of less than a single day in 1939, to introduce, through parliament, the machinery of totalitarian government in the form of the emergency powers act and the two codes of regulations based upon it. as e. s. turner put it: to fight tyranny, it was essential to use many of the weapons of tyranny. peace time luxuries like habeas corpus were tossed into the nearest whitehall oubliette. so fast were new offences created that neither police nor lawyers could keep up with them.22 the whole scheme of totalitarian government had of course been in existence long before the war, its existence being concealed; no doubt the same is true today. now to be sure these powers were in fact exercised with considerable restraint. for example, in britain during the 1939-45 war only 1,84723 british citizens were detained without trial under regulation 18b of the defence (general) regulations; simplifying the matter somewhat people could be detained if they were of "hostile origins or associations", had been recently engaged in "acts prejudicial" or were supporters of the british union of fascists or had been.24 many detainees, and probably most, were perfectly loyal people, and many quite harmless. it is impossible because of official hostility to the writing of history to form any quantitative estimate of the extent to which the power of detention was deliberately abused or employed with callous incompetence, but no doubt such 22. the phoney war (london, 1961), p. 37. he added that "one day sufficed to turn britain into a totalitarian state." 23. perhaps slightly less; this was the number of orders actually made, and not all may have been implemented. 24. for a fuller account see my earlier lecture, supra n.1. the form of the regulation was changed during the war, and in the form in which it existed in the summer of 1940 it was necessary for the home secretary to have reasonable cause to believe that the detainee fell into an appropriate category and that it was necessary to detain them. 152 the judges anp the vigilant state things happened. but it could have been very much worse.25 in america, where the immediacy of the military threat was dramatically less than it was in britain in the summer of 1940, when most of these detentions took place, a vastly greater number of citizens of japanese descent, whole families of them, were detained after pearl harbour and kept in detention long after any conceivable justification had disappeared. the whole unsavoury business was strongly affected by racialism; because of american attitudes to freedom of information we now know more about the disreputable conduct of some of those involved than we know of the british experience,z6 there was much greater restraint in britain, and there are many different reasons for this for example i am told that sir alexander maxwell, who was permanent under secretary at the home office during the war, used to deliver talks to his officials on the importance of preserving civil liberty. in this paper i will confine myself to saying something about a much narrower issue what part have the judges, through their decisions in court, played in exercising some control over the vigilant state? what have they done to ensure that its activities have been properly authorised by parliament, or by some established principle of the common law, and, so far as possible, brought under the control of the rule of law and the virtues associated with that concept? recently we have had the spycatcher affair, but being a historian i shall deal with rather earlier events into which i have looked, principally events in the wars. now i do not think it would be either possible or sensible for me, in this paper, to catalogue the judicial decisions, awarding to some brownie points and to others forfeits, in an attempt to establish an index of judicial performance. however, i think that nobody could seriously claim that the general tendency of judicial decisions in this area has been at all favourable to the protection of the supremacy of parliament, to the protection of the rule of law, or to the protection of civil liberty. let me explain why i think that this rather large claim is justifiable. in some areas of the law it is possible to point to a legal decision which possesses the status of a landmark. an example from 1772 is somerset's casi7 with its immortal conclusion, probably never uttered, "let the black go free". no doubt you can think of many others; a modem american would of course instinctively think of brown v. board ofeducation,28 which rejected the notion that separate but equal was a constitutionally acceptable solution to the racial problems which the civil war had failed to solve. of course, it is true that revisionist history usually shows both that the practical effect of landmark decisions is either less than is generally 25. without here going into details, in late 1940 mis suffered a defeat at the hands of the home office. 26. for a comparison, see my "detention without trial in the second world war: comparing the british and american experiences", 16 florida stale university law rev. 225 (1988). similar excesses took place in canada. there is an extensive literature on all this, and attempts to secure compensation and other forms of redress have enjoyed a limited degree of success. 27. 20 st. tr. i, decided 22 june 1772. 28. 347 u.s. 486 (1954). 153 the denning law journal believed, or rather different from what was expected at the time; thus the result of somerset's case was not that all the slaves in britain went free.29 it is also generally the case that such decisions are not isolated paradigm shifts, but part of a process of change. but for all that they have both a practical and symbolic importance; if they do not cause change they signal it. but what are the landmark decisions in our field? well everyone would have their own list, but all would have to include the decisions of the house of lords in march of 1917 in r. v. halliday, ex parte zadig,30 which upheld the validity of regulation 14b of the defence regulations as within the powers conferred on the executive by the defence of the realm (consolidation) act of 1914, and liversidge v.anderson, decided by the house of lords in november of 1941 at the same time as greene v. secretary of state for home affairs, 31 which held that in the absence of fraud, error as to identity, and perhaps gross formal defect the courts had no jursidiction to exercise any form of supervisory control over the power of the home secretary to detain british citizens for indefinite periods, and this without charge, trial or term set.32 who won in these cases? the vigilant state. and who lost? two perfectly loyal british citizens, both released as soon as seemed decent once the actions had been lost. and for what are these decisions celebrated? not for what they decided, but for what they did not decide, that is for the impassioned dissenting opinions of lord shaw of dunfermline in 1917 and lord atkin in 1941. but they were dissenting. they lost. the executive won. and although i do not know of any evidence that lord shaw33 suffered any personal unpleasantness as a consequence of his opinion, we all know what happened to lord atkin, in whose honour this building is named.34 en passant may i take this chance to rescue from oblivion a third dissenting opinion, acidly contemptuous in tone rather than impassioned, delivered by lord justice scrutton in ex parte brady.35 this case was one in which the court of appeal ruled that under the restoration of order in ireland regulations then in force and now i quote from lord justice scrutton: 29. see f. o. shyllon, black slaves in £,rgland (london, 1974). 30. [1916] 1 k.b. 738; [1917] a.c. 260. the lords decisions cited here are all discussed in r. stevens, law,and politics: the house of lords as a judicial body /800-/971. 31. [1942] a.c. 206, and (creme's case) 284. 32. amongst the things the courts could have done would have been to exercise a supervisory function over the procedures involved which favoured the liberty of the detainees (for example, by insisting on adequate statements of the reasons for detention), and to have shown some interest in the interpretation of the categories employed in the regulation. 1 say this only to make the point that there were middle grounds between the courts taking over the whole matter on the one hand, and effectively washing their hands of the matter on the other. 33. the distaste felt by some for lord shaw is brought out in lord macmillan's extremely hostile account of him in the dictionary of national biography. i cannot imagine that his lordship's colleagues were pleased with the tone of his opinion in the zadig case, which is if anything more impassioned than lord atkin's in the liversidge case. 34. see r. f. v. heuston, liversidge v. anderson in retrospect, 86 l.qr. 229 (1969). 35. reported in 125 law times 344 and 126 law times 9. see also the times, 26 june 1921. documents on this case are in pro ts 27/140. 154 the judges and the vigilant state ... it is possible to take any person, who like this boy has lived five years in england, to shut him up for an indefinite time without telling him the charge against him, without bringing him to trial, at the uncontrolled discretion of an officer of the executive. in my view'such a result would not follow unless the clearest words are used by parliament. in this case parliament has not used, in my opinion, clear words. but his colleagues were not impressed, and so executive detention became legitimate throughout the whole united kingdom. you will note that lord justice scrutton is here, in the spirit of the glorious revolution, exercising his judicial independence to protect the rights of parliament, and this was lord shaw's position in the case of arthur zadig. well, we all know what happened to lord justice scrutton, widely thought to have been the best commercial lawyer of his period; he never made it to the top, and it is said that his manner had something to do with this, though i know of no evidence which singles out this opinion as critical to his lack of promotion. now let us look at the matter in a slightly different way, and, reflecting on the growth of the vigilant state, enquire whether we can point to legal decisions in the regular courts which have in some way or other restrained its growth, curbed its activities, or rendered the activities of those involved in the work of surveillance accountable to parliament or to the public. well, at first glance one is inclined to say that there are no such cases to be found. take trials in camera somehow the latin makes it sound better than secret trials. such trials are wholly incompatible with the ideal of the rule of law, and are normally associated with disagreeable "foreign" systems. cases involving young persons apart, such trials were first explicitll6 authorised in times of peace by the official secrets act of 1920, a boon conferred on the british public by sir eric holt wilson. the institution reached its high point i suppose in the trial of george blake who was tried in camera in 1961 and sentenced to the record term of forty two years; this sentence at the time qualified for the record books.37 blake prudently decamped to russia and in consequence no conceivable public interest is involved in continued secrecy. yet to this day no transcript of his trial is available.38 it is quite inconceivable that the executive could have resisted disclosure if the trial judge had insisted; he was after 36. a somewhat vague common law power existed to exclude the public or individuals if this was necessary in the interests of justice; some judges used to expel women in cases of a sexual nature, and also young spectators. but since the star chamber went, trials in secret seem not to have taken place until authorised in 1920. 37. it has bcen suggested by j. rusbridger in a book still in proof on george blake that the sentence represented one year for each agent betrayed by blake, who was of course a british agent. in fact parker simply multiplied the maximum sentence of fourteen years by three, making the sentences run consecutively. 38. see c. andrew, secret seroice, p.496, noting that george brown was so enraged by the unscrupulous behaviour of the executive which, to save face, tried to conceal the fact that blake had been a british agent, that he leaked the information to chapman pincher (see his inside story, ch. 3 and c. andrew's comments). 155 the denning law journal all the lord chief justice. perhaps worse still is the case of captain john king, a foreign office cypher clerk, apparently tried in camera at the old bailey on 18 october 1939 and sentenced after a plea of guilty to ten years imprisonment.39 the very fact that this trial had taken place at all was concealed for twenty years.40 not much glasnost there. these are outrageous examples. but can anyone recall a case in which the judges resisted executive pressure for secrecy? i should not like to say that there have been no such cases, but certainly there have been none which have become leading cases on the matter. or take telephone tapping.4i apparently, until 1937 there was no formal control over this practice, but in that year the home office and post office got together and without of course telling anyone about it decided to establish a system whereby tapping was authorised by home secretary's warrant.42 at some point before the 1980s the foreign office also got into the act; tapping could be at the request either of the security service, the foreign office, the customs service, or the regular police. the practice is common and i have personal information which makes it clear that the system of warrants is not in fact always observed, in the sense that methods which do not employ tapping by post office officials are used, which is as anyone not damp behind the ears would expect. it is so easy to bug a telephone, especially if you are a member of mis or special branch and in consequence in practice immune from interference from the police if found up a drainpipe clutching electronic equipment. the contributions made by judges to this practice have been considerable, but the contribution of the courts to the control of this practice has been, quite simply, ni03 but to be fair they have only really had one chance. i could go on. but it is also true that there have been occasions when the decisions of the courts have incommoded the workings of the vigilant state. let me give you two examples. one took place in 1923. the emergency powers acquired by the executive during the first world war under dora the defence of the realm acts -long survived the end of the fighting brought about by the armistice of 1918. the war did not officially end then; as if four years was not enough it was prolonged by act 39. accounts of this case will be found in a number of books. n. west, mis, p. 90, says that (as john herbert king) he was tried before hilbery j. on charges arising out of the emergency powers act, after having confessed under the influence of alcohol. he is described as having been commissioned in the artists rifles, and that he was detected through information supplied by the defector walter krivitsky. c. andrew, secret seroice, in a documented account (p. 432), based in part on the diaries of sir alexander cadogan, suggests that king was subjected to "third degree" interrogation, whatever precisely that meant. 40. west has it that the story was released in 1956. 41. one has to be careful over the concept of tapping. it is possible to overhear a telephone conversation in a variety of different ways, only some involving any direct connection ,vith the line. there is also information to be gained from recording the duration and destination of calls, without overhearing them. 42. an account is given in the birkett report of 1957, cmnd. 283. 43. see malone v. metropolitan police commissioner (no. 2) [1979] 2 all e.r. 620. a useful collection of references is provided by s. h. bailey, d. j. harris and b. l. jones, civil liberties. cases and materials 2d. ed., pp. 381-392. is6 the judges and the vigilant state of parliament for a further three, that is until 31 august 1921. during this period there were, as ever, troubles in ireland. but one might imagine that the official end of the war, coupled with the anglo-irish treaty of 6 december 1921, together with the establishment of the irish free state, would have ended the practice of executive detention without term, charge or trial, in england, wales and scotland under the restoration of order in ireland act the practice upheld in brady's case. not a bit of it. but it was held improper at last in r. v. secretary of state for home affairs, ex parte 0 'brien decided in 1923, and thus stopped by court decision.44 another example occurred in 1941, when one of the 1,847 18b detainees of the second world war, captain charles henry bentick budd, was actually released by court order in habeas corpus proceedings, not on grounds of substance, but because of formal irregularity in his arrest. it did him no good since he was soon re-arrested, formal irregularity being easily cured, though he did enjoy a brief period of liberty in which he caught 'flu. the same fate of re-arrest overtook some other detainees whose situation was also formally irregular, and who enjoyed a brief freedom as a result of budd's action whilst new documents were prepared. no doubt other examples might be given of decisions adverse to the vigilant state, but they do not affect the general picture in any significant way.45 now let me try to provide an explanation for the phenomenon i have tried to illustrate: judicial passivity in the face of the vigilant state. judicial passivity sounds rather disagreeable; let me make it clear that i am not attributing some sort of personal vice to individual members of the judiciary; i am really not concerned with individuals, and to explain this i must say something about that mysterious entity, "the law", which is supposed to control the behaviour of individual judges. there are people who will tell you that the law is a system of rules, or a system of rules and principles, and perhaps exceptions and definitions, but all that is, i am afraid, an ideal picture. that is what those who write treatises try to make it, like j. c. gray, who, after a hundred and forty-odd pages of intricate text, took a deep breath and delivered himself of the rule against perpetuities, which he had invented, together with the weird dogma that it was to be remorselessly applied, i which meant without any commonsense or attention to purpose at all, and he got awaywith it. mercifully few do; the law is all much more messy and confused than that, and in many areas you never know which way the cat will jump from one moment to the next.46 i prefer to think of "the law" as a professional culture, rooted in tradition, and comprising a whole range of beliefs and attitudes and ideals and values and practices and customs like wearing silly clothes and ways of 44. [1923] 2 k.b. 361; [19231 a.c. 603. 45. for discussion of budd's case and references see my rhetoric, reality and regulation 18b (the child & co. lecture of tuesday 12 may 1987) reprinted in 1988 denning lawjournal, p. 123. there is some slight uncertainty as to whether all those released were re-arrested, but i think that all were. the principle source on budd is pro ts27/506. his first action is reported in the times, 28 may 1941. 46. on all this see my the common law and legal theory, originally published in oxford essays in jurisprudence 2nd. ser., pp. 77-99 and reprinted in legal theory afld legal history. essays oflthe common law (1987) and in w. l. twining (ed.), legal theory and the common law (1987). 157 the denning law journal analysing problems and happenings in the world and a language to talk about them in and even jokes about snails in bottles and, one must add, etcetera. the passivity i have mentioned is part of this culture, just as aggression is part of the special culture of the members of the special air service,47 and to say this is merely to record what seems to be the case, whether we like it or not. judicial behaviour does not have to conform to the culture, in the sense that it is perfectly possible for judges to act differently, just as i might have turned up for lectures wearing a bikini rather than a suit and tie, which is what professors are supposed to wear on such occasions, however hot the weather. but, like professors, judges will generally do what seems to be expected of them, and in doing so will of course conceive of themselves as doing the right thing, following "the law" if you will. now one explanation of judicial passivity could be pragmatic realism. since parliament is sovereign, or more or less so, and is commonly controlled by the executive, although so called back bench revolts occur from time to time, judicial decisions can always be reversed. so if the judges give decisions unfavourable to the executive the only result is that they are reversed by legislation (or, as in budd's case, by administrative action). hence it is futile for the courts to rock the boat, and the judges recognise reality in their decisions. this explanation assumes that the judges have no real power. i do not find this persuasive. in reality the executive does not, and politically often cannot simply reverse unpalatable decisions. the o'brien case is an example. my own work on detention in the 1939-45 war convinces me that professional civil servants were at this time very nervous over possible defeats in the courts and risk of judicial criticism. what they feared was the political consequences of such defeats. hence, for example, very great trouble was taken to defend actions brought by detainees vigorously, and to attempt to present the executive as doing its competent best in trying conditions. the most dramatic illustration of this nervousness of the courts involved an individual called arthur campbell.48 an ex-soldier, possibly a little unbalanced,49 he had been a member of the british union of fascists until 1937. he was detained in june of 1940 as being "of hostile associations" on pathetically meagre grounds. he was entitled under the defence regulations to be told the reasons for his detention, and was informed officially,but wrongly, that he had been detained under a separate provision of regulation 18bso as having been a member of the british union of fascists. he exercised his right to a hearing before the advisory committee, which reported in october and failed to notice the discrepancy 47. not of course just the s.a.s. i spent many hours in my military training being schooled both in aggression and in how to make soldiers whom i commanded aggressive. fortunately i never had occasion to practice these skills. 48. this account is based on pro ts 27/507 and ho 144/21635/840921, the latter file being much weeded. not all papers are available. the home office, under the influence of mis, continues to impede the writing of the history of the second world war. 49. many first war soldiers were permanently unsettled by the terrible experiences of the trenches, and if one considers the conditions in which they fought this is hardly to be wondered at. so. regulation 18b was amended in may of 1940 in order to permit the locking up of sir oswald mosley and many of his supporters under a provision known as 18b la. 158 the judges and the vigilant state between the formal ground upon which he had in fact been detained, and the reasons given to him. the committees! recommended continued detention. he eventually started proceedings by way of habeas corpus, being represented by the liberal minded solicitor oswald hickson. these were pending when captain budd won his action. preparations were made to contest his application, but in the course of these sir john anderson signed an affidavit which revealed an extraordinary practice which had been established over 18b detainees and followed in hundreds of cases. the reasons which were supplied to detainees, as required by law, were prepared by officers of the security service, who did their best to guess why sir john anderson or his successor herbert morrison had ordered detention. they had to guess because, to put it simply, the home secretary never revealed why he had ordered detention. 52 in the wake of the budd case, and with knowledge of behind the scenes judicial criticism of the errors being made in the home office, valentine holmes, the treasury counsel handling the matter, advised that arthur campbell had better be released rather than reveal all this to the judges. his advice was followed. the civil servants did not relish getting judicial egg upon their shirts. 53 the moral of this story is that the executive was not in any way indifferent to the views of the judges. officials seem to have been rather frightened of them. another possibility is that the judges were simply callous. well, there have always been judges who have been callous or become so. in my own experience, i recall being appalled by a fellow magistrate who, before going into the defaulters' court, said brightly to me, "well, i hope we imprison someone today." i also recall another magistrate who, confronted with a rather defective person coming up for sentence, remarked "we could always send him to the vet." these are not remarks one ever forgets. but i do not myself think that as a general explanation callous indifference is plausible.54 let me give you an example. in the summer of 1940 the scale of detention under regulation 18b increased very sharply indeed. by the end of april of 1940 only 136 detention orders had been made, and only fifty-eight persons remained in custody. by the end of august the number in custody had risen to 1428. this rise in the use of 18b coincided with the mass detention of enemy aliens, most of whom were refugees from fascism. something of the order of 28,000 of them were detained. to put these figures in perspective, the daily average prison population at this period was around 8,000. inevitably, this 51. the committee met in various panels; this one was presided over by a. w. cockburn k.c .. 52. one of the difficulties was that sir john did not normally have any precise reasons; he went on the general impression gained from so much perusal of the minuted file as he was able to engage in. his minute on the file did not take the form of "i agree to detention for the following reasons" but rather "i agree." 53. i am afraid that it did him little good. a new order was made and he languished in detention until i july 1941. civil actions for defamation and false imprisonment were abandoned; the combined effect of the legal decisions deprived such people of any hope of any sort of remedy in the courts. 54. this does not mean that some decisions were not influenced by an inability to sympathise with the predicament of others. 159 the denning law journal all brought about very considerable administrative confusion. now detainees had a right under the regulations to be told the grounds on which the order had been made, and be furnished with particulars; these were provided in a written document headed "reasons for order", which was provided to detainees some time after their arrest. they also had a right to put their case to an advisory committee,55 and of course needed the "reasons for order" in order to do this. one of the consequences of the great incarceration of the summer of 1940 was that considerable delays began to occur between the arrest of an individual, the provision of the "reasons for order", and the hearing before the advisory committee. once the hearing did take place a report had to be written and this, together with a transcript of the hearing, was then considered by home office officials and eventually a decision was t2,ken as to whether or not to accept the advice. it took some time for the file to make its stately way up the hierarchy of officials for all of them felt obliged to scribble some sort of observation on the docket. sir john anderson always did accept the recommendation of the advisory committee, but his successor herbert morrison did not, so the consideration of the report was not a formality. in october of 1940 a group of five detainees, represented by the same oswald hickson, applied for habeas corpus; one was a very prominent individual, admiral sir barry domvile, who, together with his wife alexandrina56 had been detained on 8 july, almost exactly three months before the application was made. none of the five had yet been told why they were detained, nor had they yet of course been before the advisory committee. the basis of the application was that the excessive delay amounted to a denial of their legal rights under the defence regulations, so that their detention was in consequence unlawful. although this was a perfectly reasonable argument it was not accepted by the divisional court. one is tempted to say that they lost, of course. but lord caldecote, who as lord chief justice presided over the hearing, was well aware of the administrative confusion which existed, 57 and seems to have felt rather guilty about the whole business. so behind the scenes he wrote a long letter to the home secretary, herbert morrison, "as a friend". i shall quote one passage: i shall be very sorry indeed and i am sure you would be if hereafter it was thought that we had been a little callous about the conditions in which these persons have been interned. a great many of them richly deserve internment 55. this sat in several panels; the chairman of the whole institution was sir norman birkett. 56. his son compton was detained about the same time. the basic source is pro ts27/491. 57. although i cannot document this, i should not be surprised ifhe had a discreet word with norman birkett or one of the other lawyers involved with the advisorycommittee; in the incestuous little world of the london bar it would be easy to have found out what was happening. 160 the judges and the vigilant state but a great many of them are wholly innocent and known to have the most friendly feelings towards this country.58 he offered to lend some judges to afforce the advisory committee and speed up its work, but this offer was turned down, one reason being that judges might not be easy about operating in a merely advisory role. judges decide; it is not their role to advise.59 if we reject both pragmatic realism and indifference as explanations for judicial reluctance to interfere with the growing power of the vigilant state, much less any sort of sinister conspiracy, what are we left with? i do not think that it is, in the nature of things, possible to provide either a simple explanation or one that can be conclusively demonstrated to be correct. what can perhaps be said is that judicial passivity in this area is related to certain ideas and attitudes which form part of our judicial and legal culture, and to certain institutional forms of behaviour. i shall begin with ideas and attitudes. first, let me tell you about what i call the reading principle or presumption. i so call it from a remark made by lord reading as lord chief justice back in 1920 in a habeas corpus application on behalf of one patrick f oy.60 he had been detained in dublin on 14 january 1920 by an order made under regulation 14b of the dora regulations, as amended in 1918, on suspicion of engagement in "acts prejudicial to the public safety or the defence of the realm". he had been moved to wormwood scrubs prison in london. now the peace treaty with germany had been signed onjanuary 10, and one argument advanced for patrick foy by sir john simon, himself the father of executive detention,61 was this: the whole of the defence of the realm legislation ... was directed to the protection of the country from foreign foes during the period of the war. it was not intended to be used for the suppression of rebellion or the preservation of internal order even during the war, and still less at a time when the war was over. but the court was not impressed; the war was still officially in progress.62 in the course of his opinion, lord reading said this: 58. the letter appears to have involved concern over the detained aliens as well as detained citizens. it is in pro ho 45/25114. 59. in fact norman birkett continued to run the advisory committee after he became a judge, but he had a happy relationship with the civil servants and caused them no anxieties. other judges might have meant trouble. 60. [1920] 2 k.b. 305; 34 t.l.r. 7. see also pro ts 27/85. 61. sir john had, as home secretary, brought in regulation 148 in 1915; in its original form it was presented as an extension of alien control, permitting the detention of persons of hostile origin or associations who, as citizens, could not be held under the prerogative. 62. it ended officially on 31 august 1921. 161 the denning law journal it is of course always to be assumed that the executive will act honestly and that its powers will be reasonably exercised. contrast that, if you will, with the golden thread and woolmington. lord reading's remark is, i think, a particularly clear statement of the attitude of mind with which the judiciary have approached the activities of the vigilant state, and it is an attitude of mind which has been in general reflected in the course of judicial decisions in this area. indeed the reading presumption recurs like a refrain in various forms in the cases, and its power is enormously enhanced by decisions which make it in practice impossible for citizens to discover whether the executive has in fact acted honestly and exercised its powers reasonably. in our field the classic decision here is liversidge v.anderson, which prevented detainees from prising out of the officials information vital to their case. combine the reading presumption with executive secrecy and you have a recipe for uncontrolled executive power.63 the second idea or attitude to which i draw attention is the british legal culture's theory of civil rights, known as the doctrine of the "fair" or "fundamental" balance. the fullest statement is to be found in the report of the royal commission on criminal procedure of 1981,64but statements tum up all over the place. according to this theory a "fair" balance must be maintained between the rights of individuals and the publicinterest. consequently, if some supposedly grave question of public importance is involved, and what could be graver than national security,65 the rights of individuals go straight down the tubes. hence the more you need rights, the less rights you have, because under this theory you are never allowed rights when they are a serious nuisance to the authorities. this is all built into our criminal procedure. if you are suspected of shop lifting and want a lawyer the telephone will usually be out of order for a while, but if you persist you will be allowed access. but if you are suspected of murdering children or planting bombs, and really do need a lawyer very badly indeed, your hopes of getting one are much reduced, the idea being to let you have a lawyer so long as it's too late to help. imagine a medical system which delayed access to doctors for longer periods in cases of grave illness; that really would alter the structure of the waiting times and, the gravelyill having died, release resources to deal with trivial complaints. let me quote you as an example of the thinking involved the words of lord denning in the family story. during the war lord denning was a legal adviser to 63. curiously enough, a civil servant who attended the lecture told me that on the same day he had given advice in terms of the reading presumption. 64. cmnd. 8092, paras. 1.11-l23. i have no idea why the report calls the balance "fundamental" unless the point is to add an air of plausibility to this pernicious notion. after all, if something is 'fundamental' one can hardly disagree with it. or perhaps the use of 'fundamental' instead of 'fair' reflects a dim awareness that the one thing the balance is not is 'fair'. 65. it is not at all clear what is meant by this expression, but ifit means the security of the country from foreign attack or domination most references to it are ridiculous. 162 the judges and the vigilant state the north east region; i quote extracts from his account of this work, couched in his celebrated pithy style: most of my work in leeds was to detain people under regulation 18b ... as an instance i would tell of the "nazi parson" in a village in yorkshire. he often spent his holidays in germany ... although there was no case against him, no proof at all, i detained him under l8b. 66 the bishop of ripon protested, but we took no notice. only the effect of the british theory of rights could lead that great and good man to be able to write and publish this passage, and some unease is revealed by the fact that three lines later lord denning, presumably in an attempt to distance himself from all this,67 refers to lord atkin's dissent in the liversidge case as "after my own heart". let me make it clear that i quote this passage from lord denning merely to make the point that the theory of rights i have stated is so deeply embedded in our legal culture that even lord denning can write this passage.68 the third attitude is one of aversion to reality. now law or legal culture provides us with a scheme for interpreting reality; as a lawyer passes through the checkout at the supermarket he knows that what is going on is not shopping for supper but offer and acceptance, and as he walks under a ladder he knows he is in the area of forseeable risk and is comforted by the existence of a duty to take care. now one of the troubles about this aspect of legal culture is that it may form a complete barrier to the perception of reality. legal concepts can entirely banish common sense, or conceal the absence of the emperor's clothes. a good example is the famous case of d.p.p. v. smith69 where the responsibility of the accused man for the terrible accident which killed the police officer was discussed in part in terms of the concept of "contemplation". outside the gobbledegook of the law, contemplation is an activity more or less confined to the professed religious in enclosed orders, and of course was wholly irrelevant to understanding or categorising for legal purposes the actions of smith who was, as he explained, at the time in a panic. between the incident itself and the opinion of lord kilmuir a complete gulf existed; the legal concepts did not help, but got in the way. in the case of the vigilant state the same gulf seems to exist. thus in the cases dealing with my 66. not really. what happened was that a request was submitted on form dr8 via mis to the home office. 67. the passage argues that "this was the law", but of course it wasn't. those who recall this period will know that in the summer of 1940 there were spies and saboteurs absolutely everywhere; a favourite activity was "signalling". 68. 1 have not yet certainly identified the nazi parson; there were a number of parsons who were of the far right the revds. a. palmer, e. c. opie, m. yate allen, e. roberts, g. dymock and h. e. b. nye. having been brought up in the world of the vicarage, the existence of this form of dottiness amongst parsons comes as no surprise. the detention probably took place in 1940, that is before the law of detention was settled in its extreme form by the lords' decisions of november 1941. 69. [1961] a.c. 290. 163 the denning law journal detainees the picture is one in which the home secretary, sir john anderson or his successor, is presented as having given personal and careful attention to the decision to detain each individual, satisfying himself that he had reasonable cause to believe the person fell into a detainable category and needed to be detained it is the way we expect a judge or member of a jury to behave. it was this care taken by a high officer of state that justified the passivity of the courts, in reality nothing of the sort took place. even before things hotted up the home secretary never himself quizzed the agents of mis on whose word detentions took place, and only very rarely met with senior security officers at all. he merely looked at files and the minutes on them, no doubt occasionally chatting with his permanent under-secretary on particular cases. in june 1940 sir john made 826 detention orders, and at ten minutes per order the work of consideration would have filled 137 man-hours. some names of detainees probably never even passed over his desk, and on at least one occasion herbert morrison signed detention orders in blank; some alarm arose when these were accidentally left behind in a pub before service, we are in a world where "lifting the veil" as they say in corporation law is regularly eschewed. what of institutional practices? back in the days of the classical common law, judges in their official capacity 'judged'. of course they did other things attended prize fights for example but not as judges. judging was their function in the scheme of things. but in the late nineteenth century they began to perform as judges on committees and tribunals of inquiry of one kind and another, an early example is the commission of 1886 (mr. justice day) to inquire into the belfast riots; better knc',':l1 is the parnell commission of 1888;70 one can hardly overestimate the pernicious effects of our unhappy relationship with ireland on our legal situation, since then the practice has become increasingly common; more recent examples include the lynskey tribunal of 1948-49 before which robert liversidge put in a cameo appearance, lord justice parker on bank-rate leaks in 1957-58, lord radcliffe and mr. justice barry on spies in 1962-63 and lord edmund davies on aberfan in 1966-1967.71 then there has been lord scarman on the brixton riots.72 judges are used let me emphasise the word 'used' by the executive in cases of riots, scandals and disasters for a reason clearly set out in the evidence given by sir robert armstrong, then cabinet secretary, in the spycatcher case in australia.73 70. this was established by a special act, 51 & 52 vict.c.31, the judges being sir james hannen, sir john day and sir archibald smith. the commission of inquiry replaced the use of select committees of the commons; they also, in a sense, replace the regular processes of investigating and prosecuting crime. . 71. see, generally, g. w. keeton, trial by tribunal (london, 1960), g. rhodes, committees of inquiry (london, 1972), f. l. morrison, the courts and the political process in england (london, 1973) and cmnd. 3121 of 1966 (lord justic salmon). for comment, see r. b. stevens, "the independence of the judiciary: the view from the lord chancellor's office", 8 oxford jo. of legal studies 222 (1988). 72. a distinct phenomenon has been the use of judges as civil servants, for example on the siting of a new london airport. 73. quoted in colin turnbull's account of the case at p. 62. 164 the judges and the vigilant state sir robert was being asked whether the procedure followed by lord bridge of harwich in investigating official telephone tapping in 1985 had been satisfactory. you will recall that lord bridge was asked the somewhat peculiar question whether all official phone taps in a defined period (1970-1984) had been properly authorised: whether authorised interceptions since 1970 had been approved by ministers according to the rules. after a very brief and secret investigation of this wholly uninteresting question, and one that naturally did not detain him long, he reported that in all 6129 cases everything had been properly done, and published no reasons for this conclusion. given the/form of the question it is hard to see what other conclusion could have been reached. counsel, in the person of colin turnbull, asked sir robert whether it was satisfactory: for lord bridge to simply publish his conclusions and none of the facts upon which it was based? sir robert, who presumably devoted his considerable talents as an obfuscator to drafting, or approving, both the terms of reference and the idea of this investigation, naturally enough did think it satisfactory, and replied: because it may not be possible to publish, to make public all the evidence on which the conclusions are based. and that being so, the purpose of having somebody of the independence and stature of lord bridge of harwich is to assure the public that when it is not possible for reasons of national security to give reasons, somebody of that independence and stature has satisfied himself that this is right. note the concepts involved: stature· and independence?4 what is involved is a form of parasitism; the political effectiveness of this technique of reassurance is parasitic upon the respect generated by the normal exercise of the judicial function, in which judges stand for things like independence from the executive, impartiality, respect for the rule oflaw, explicit justification of decisions (subject to appeal) after fair hearings of evidence presented in open court, with benefit of counsel. the trick is to transfer the respect thus gained to legitimate decisions reached in wholly different contexts, and through procedures wholly at odds with the ideal of the rule oflaw. such parasitism has a long history. in the first war the rights of detainees, insofar as they had any, were entrusted to an advisory committee run by two judges, sir john sankey and sir robert younger. this body met in secret, allowed no legal representation, published no reports or reasons and allowed no confrontation of witnesses. its procedures conformed to the popular image of the 74. not to mention the impossibility of publishing all the evidence (so publish none) and national security (many taps have nothing whatever to do with national security). 165 the denning law journal star chamber. in the second war much the same system was employed; sir norman birkett, as we have seen, ran a similar body. he had, of course, great public stature as an advocate, and he continued to run the committee after he became a judge. en passant let me make clear that it is my own opinion that he, and other lawyers who served as panel chairmen, did a great deal to protect british citizens from the excesses of mis; absence of evidence makes it impossible to form any view about what happened in the first war. the parasitism i have described reached its ultimate in the inquiry into the profumo scandal. let me simply quote what lord justice salmon75 said about it. the government decided that to allay the very widespread public concern an inquiry should be held. they decided however not to set up a tribunal for this purpose under the act of 1921; instead they appointed lord denning, the master of the rolls, to hold this inquiry. this task he performed with conspicuous success despite the difficulties inherent in the procedure which he followed. the inquiry was conducted behind closed doors. none of the witnesses heard any of the evidence given against him by others or had any opportunity of testing such evidence. the transcript of the evidence was never published. lord denning had in effect to act as detective, solicitor, counsel and judge. in spite of the many defects in the procedure lord dening's report was generally accepted by the public. but this was only because of lord denning's rare qualities and high reputation. even the public acceptance of the report may be regarded as a brilliant exception to what would normally occur when an inquiry is carried out under such conditions. it is i think not necessary to do more than quote this passage. now of course the judges who have allowed themselves to be used by the executive in this way have no doubt agreed to act from the highest motives, and done their best to do a good job, but their activities seem to me wholly incompatible with the conception of judicial independence from the executive which was established by the glorious revolution. such work involves joining the executive, becoming pro tempore incorporated into the civil service, and in our area becoming part of the apparatus of that part of the executive which constitutes the secret and vigilant state. the very nature of these activities stands in direct opposition to the ideal of the rule of law. judges, as it seems to me, should have absolutely nothing to do with secret hearings where there is no legal representation, no confrontation of witnesses, no giving of judgment in open court after a hearing in open court. their involvement in such goings on may in the short term confer a spurious legitimacy on what is done, but they should 75. i had better add "as he then was", see the royal commission on tn'bunals of inquiry cmnd. 3121, at para. 21. 166 the judges and the vigilant state remember that parasites, though they do not destroy their hosts,76 always debilitate them, and what is involved here is the debilitation of the judicial function and ultimately the degradation of the judicial office. a particularly worrying feature of the whole process of incorporation into the vigilant state is that it possesses a seductive quality. thus in the profumo report there are passages extolling the positive advantages of the procedures involved. an extreme example is a memorandum written by sir norman birkett in 194077 explaining why the absence of legal representation before his committee did detainees no harm yet birkett's whole stature in society, the reason he was doing the job at all, had come about through his career as an advocate at the english bar. nothing more clearly illustrates the incompatibility between the ideals of the common law and this sort of work. we all agree that there are things judges ought not to do; indeed documents emanate from the lord chancellor's office telling them not to appear on television or whatever. these deal in silly trivialities; running secret enquiries is not a triviality. whether i persuade you of this or not, and i simply give you my opinion, i think that the blurring of roles involved in all this must have something to do with the phenomenon of judicial passivity in the face of the vigilant state.78 now in recent times there has been much said about the need for a new bill of rights. i have here a recent piece by lord scarman, published in the independent on 9 june 1989.79 one point he makes there is that such a bill of rights would have an educative function he has in mind children being taught from it about "the values and princ~ples'of our free society". no doubt this is right, and i should suggest that such a bill of rights might also have a further educative function for lawyers. its existence would, i think, modifyour legal and judicial culture, and whatever precise form such a document took it would surely express ideals and values of a character which would make it extremely difficult, if not impossible, for judges committed to enforcing its provisions to join in activities wholly at odds with the ideals and values embodied in them. that would seem to me to be a good development, and one in keeping with the tradition of judicial independence established in the glorious revolution of 1688. 76. as a class, that is. 77. memorandum of 10 january 1940 in ho 45/25754, quoted in my earlier article. 78. i do not here go into the phenomenon of selecting judges who have in the past been involved in intelligence work to sit on committees of one kind and another dealing with the vigilant state. 79. "a bill of rights could become the conscience of the nation." 167 developments in the law of confidentiali ty the han. mr justice scott the law of confidentiality is a creature with many heads. it is capable of covering the secrets of the marriage bed, i the confidential details of a manufacturing process,2 the secrets of mis,3 privileged documents disclosed by mistake,4 information about clients' affairs obtained by a financial services company,5 or about a patient obtained by his doctor,6 information obtained from telephone tapping7 or from commercial espionage. in each of the situations described, as well as in a variety of others, the person in whom the information reposes may find himself (or herself) subjected to an injunction not to disclose or not to make use of the information or liable in damages (or for an account of profits) for the use already made of the information. there is no one clear source of the legal obligations imposed by the law for the protection of confidential information. in some contexts the law of contract is the obvious source. this will be so where the relationship between the person to whom the duty is owed and the person on whom the duty is laid is or has been a contractual one. in the spycatcher case mr peter wright had been an officer of mis and in that capacity had acquired the knowledge of mis affairs that he purported to reveal in his book. obligations of confidence and secrecy were imposed on him by the nature of his employment in mis. there is a plethora of cases in which obligations of confidence in relation to commercial information have been held to be owed by employees to their employers. 8 these obligations are generally treated as arising under implied terms in the contracts of employment. but there are many cases outside the field of contract in which similar obligations have been imposed for the protection of confidential information. in some, analogies with rights of property have been drawn in order to explain the i. a rgyll v. argyll [1967] ch. 302. 2. seagerv. copydex [1967] i w.l.r. 23. 3. arcorney general v. guardian newspapers ltd. (no 2) [1988] 3 w.l.r. 776. 4. ashburton v. pape [1913] 2 ch. 469. 5. re a company [1989] ch. 477. 6. w. v. egdell [1989] 2 w.l.r. 689. 7. francome v. mirror group newspapers [1984] i w.l.r. 892. 8. see, e.g., cranleigh precision engineering ltd. v. bryant [1965] i w.l.r. 1293; coco v. a. n. clark (engineers) ltd. [1969] r.p.c. 41. 77 the denning law journal protection being afforded to the confidential information.9 in others, general principles of equity, of "obligations of conscience", have been used to justify the protection of the confidential information. in seager v. copydex,1olord denning mr said:11 "it depends upon the broad principle of equity that he who receives information in confidence shall not take unfair advantage of it." and swinfen eady j in ashburton v. pape12 said:13 "the principle upon which the court of chancery has acted for many years has been to restrain the publication of ... information imparted in confidence which ought not be divulged." in the family cases, such as argyll v. argylll4 and stephens v. avery,15 the protection afforded to the respective plaintiffs can hardly be attributed to any . contractual or proprietory source and can only be attributed to the application of a general principle of law. in many cases, analysis of the relevant facts enables the protection of the information in question to be justified on more than one of the possible bases i have mentioned. in the employment cases, both commercial and governmental, implied contract and equity may seem to cover the same ground. in the case which is the granddaddy of them all, prince a lbert v. strange, 16 the injunction granted to restrain the exhibition of the prince consort's etchings was based on breach of trust, breach of contract, property rights in the etchings, as well as on breach of confidence. and if, in a particular case, it seems obvious that an injunction should be granted, it may be thought pedantic to insist on a rigorous analysis of the true basis on which the relief can be justified. but an exclusively pragmatic approach may lead to difficulties. unless, in confidential information cases, it is made clear what principle of law is being applied the application of the law to new factual situations, which are bound from time to time to arise, will be haphazard. and, worse, if the wrong principle oflaw is applied, the result of the case may be injustice and the law may be driven down a cul-de-sac from which there is no escape bar legislation. my purpose in this article is to examine two particular types of case, to both of which principles of the law of confidentiality have been applied. my preceding 9. see, e.g., exchange telegraph v. gregory [1896] i q.b. 147and re keane [1922] ch. 475. 10. [1967] i w.l.r. 923. ii. at p.93 i. 12. [1913) 2 ch. 469. \3. at page 475. 14. [1967) ch. 302. 15. [1988] ch. 449. 16. (1849) i mac. & g. 25. 78 developments in the law of confidentiality remarks are intended as a preface to that examination. one type of case concerns the extent of the duty owed by an ex-employee to his or her previous employer not to disclose or make use of the employer's confidential commercial information. the other type of case concerns the extent to which a duty not to mis-use confidential information can be used to provide some protection against the invasion of privacy. i will start with the former. the duty of confidence owed by an ex-employee to an ex-employer it is, i think, obvious that the source of whatever duties of confidence are owed by an employee to his or her employer, whether during or after the termination of the contract of employment, must be the contract itself. the contr'lct may contain an express term dealing with the matter. if it does then, unless the term is unenforceable on restraint of trade or other public policy grounds, the extent of the duties it imposes will be a matter of construction of the contractual term. if, however, there is no express term then, if a duty is to be imposed on the employee, it must be justified by reference to an implied term. the terms that can be implied into a particular contract will generally depend upon the circumstances of the particular case. all lawyers will be familiar with the well known and much used " 'officious bystander' " and" 'necessary to give efficacy to the contract' " criteria. there are in addition terms that will be implied into a contract as a matter almost of legal presumption.17 of this latter sort is, probably, the so-called "duty of fidelity" that the law generally regards as owing by any employee to his or her employer.ib the duty of an employee not to disclose his employer's confidential information is, at least while the employment continues, probably best regarded as one aspect of the implied duty of fidelity. but what of the position after the employment has come to an end? it is not arguable, and has not as far as i know been argued, that the implied duty of fidelity can survive the termination of the employment. so on what basis can a continued duty of confidence be regarded as owing by the ex-employee? why should an ex-employee not be entitled to use for his own purposes, including that of competition with his ex-employer, all and any information that he has acquired in the course of his employment? the answer to these questions must, in my opinion, be found by an application of the principles of the law of contract. in every case the question that must be asked is whether a term can be implied into the contract of employment to the effect that after its termination the employee will neither disclose to others nor use for his own purposes the information in question. if a term to this effect cannot be implied then, in my opinion, the employee must be regarded as free to use the information in question. and the criteria to be applied in answering the question must be the well tried "officious bystander" or "giving efficacy to the contract" criteria. it is, in my opinion, wrong in principle in cases between ex-employers and ex17. see, e.g., liverpool city council v. irwin [1977] a.c. 239. 18. see hivac v. park royal scientific instruments limited [1946] ch. 169. 79 the denning law journal employees to attempt to define the extent of the obligations resting on the ex-employee in respect of confidential information by reference to the "broad principle of equity that he who receives information in confidence shall not take unfair advantage of it" .19 it is equally wrong in principle, in my opinion, to attempt to define the ex-employee's obligation in respect of confidential information by reference to alleged breaches during the employment of the employee's implied duty of fidelity. it is a generally recognised breach of the implied duty of fidelity for an employee during his employment to make or to memorise a list of his employer's customers in order, after the termination of the employment, to solicit their custom for his competing business.2o but it is not a breach of duty for an ex-employee, after the termination of his employment, to solicit for his competing business the custom of those of his ex-employer's customers as have, without any breach of his duty of fidelity, become stored in his memory.2\ nor, in my opinion, is an ex-employee in breach of duty if, as soon as his employment has terminated and his duty of fidelity has come to an end, he sits down and makes a list, with a public trade directory as an aide memoire, of as many customers of his ex-employer as he can remember. in practice, the situations i have described rarely appear clear cut. this is particularly so on interlocutory applications by ex-employers for injunctions to restrain ex-employees from carrying on competing businesses. these are familiar applications to all chancery judges. there is a commonly found pattern. the employer, often a high tech. company, is faced with a number of its employees giving notice at about the same time. some will be technicians, some salesmen and, probably, there will be one or two executives among them. after leaving their employment these ex-employees join together and set up a competing business. they approach the ex-employer's customers; they manufacture and offer for sale competing products or services; the prices they quote are pitched just under the ex-employer's prices; the trade literature they produce bears a resemblance to the ex-employer's trade literature; the appliances they manufacture and sell bear a resemblance, visual and functional, to the ex-employer's appliances and, accordingly, appear to incorporate some of the results of the ex-employer's costly research and development. the employer arrives, ex parte, before a chancery judge asking for injunctions to restrain the misuse of confidential information, and, in effect, to restrain the continuance of the competing business. the plaintiffs affidavits will usually allege that the ex-employees, in breach of their duty of fidelity, have copied customer lists and price lists while still employed. it will be alleged that the competing appliances incorporate design and technical features derived from the ex-employer's appliances and knowledge of which represents confidential information. it will be alleged that use of this information for the purpose of the competing business represents unfair dealing with 19. per lord denning mr in seager v. copydex [1967] i w.l.r. 923. 20. see wessex dairies v. smith [1935] 2 k.b. 80. 21. see faccenda chicken v. fowler [1987] ch. 117. 80 developments in the law of confidentiality confidential information and should be restrained by injunction. it is my experience over the past fifteen years or so, as advocate and then as judge, that ex parte relief in these cases has been only rarely justified but regrettably commonly granted. the trend has, i think, now been halted mainly by the court of appeal judgment in faccenda chicken v. fowler.22 in the faccenda chicken case neill lj, who gave the judgment of the court, concentrated attention on the extent to which, by means of an implied contractual term, an obligation could be imposed on an ex-employee not to divulge or use confidential information. the extent, he held, was very limited. trade secrets of the secret formula variety, e.g. the coca-cola formula, could be protected by an implied contractual term; but, these apart, an employee's knowledge of manufacturing processes, of results of research, of availability of new materials or of spare parts, of the identity of important customers, of prices and profit margins, whether or not acquired in the course of the employment, were part of his general knowledge that he was entitled to exploit for his own purposes after the termination of his employment. this rigorous limitation of the extent to which competition by ex-employees can be stifled by the playing of the confidential information card was, in my respectful opinion, entirely in accordance with principle and was not at all overdue. solicitation of customers by an ex-employee can, if part of the employer's trade goodwill adheres to the employee, be restrained by a suitable express term in the contract. the restraint would almost certainly have to be limited in duration. so, also, competition by ex-employees to whom part of the employer's goodwill adheres, can be restrained by a suitable express term. a geographical as well as a temporal limitation would usually be necessary if the term were to avoid restraint of trade invalidity. a prospective employee faced with employment on terms that incorporate a post-employment restraint of trade clause can decide whether or not he is prepared to accept employment on those terms. if he does not like the proposed restraint he need not accept the employment. if he accepts the employment he does so with his eyes open. if, on the other hand, the terms of employment contain no express restraint on post-employment business competition, the ex-employee should, as a general principle, be regarded as free to compete and to use for the purposes of the competing business all and any skills, knowledge or information acquired in the course of his employment. only in a very special case, e.g. the secret formula type of case, should an implied term be imposed on him. the implied term will, after all, invariably constitute a restraint of trade. it will be unlimited in time and will be very unlikely to incorporate any geographical limits. if the implied restraint had been embodied in an express term, it would have been a candidate for invalidity on restraint of trade grounds. i would think it almost too obvious to be stated that the court ought never to impose on an ex-employee an implied restraint that would have been void for illegality if 22. [1987] ch. 117. see also hoffman j in lock international p.l.c. v. beswick [1989] i w.l.r. 1268. 81 the denning law journal contained in an express term of the contract of employment. but a number of cases may be found where, for the protection of so-called confidential information, injunctions have been granted that went further than an express restraint could ever have gone. perpetual injunctions have in many cases been granted.23 may i return to my hypothetical case. the grant of the injunctions sought could not now, post paccenda chicken, be justified on breach of duty of confidence grounds except to the extent that the information alleged to be being used was of the trade secret/secret formula variety. could the injunctions be justified on the ground of breaches of the duty of fidelity committed during the course of the employment? in my opinion, the courts should be very wary of granting injunc'tions restraining the use of allegedly confidential information on this ground, and should virtually never do so ex parte. there are three reasons for this. first, allegations that customer lists or price lists have been taken or copied are very easy to make and, until trial, very difficult to disprove. second, the severity of the injunction is usually disproportionate to the gravity of the alleged breach of the duty of fidelity. let it be accepted that a customer list should not be copied or taken away, nonetheless a short period of work with a trade directory coupled with a iegitimate use of memory would in most cases produce much the same result. so the damage caused by the breach would be likely to be trivial. third, the extent of the implied duty of fidelity must be kept within reasonable bounds. it is not a breach of the duty of fidelity for an employee, even a senior employee or a senior executive, to decide to leave his employment in order to set up in competition. nor is it a breac1i if the employee forms the decision some months in advance of giving his notice. is it a breach if, during his employment, he incorporates and organises the company which is to be the vehicle by means of which he will compete after his employment has come to an end? in my opinion, it is not. is it a breach if, during his employment, he pays particular attention to some particular research, or to some particular manufacturing process, in order to improve his technical knowledge and to enhance his ability to compete successfully after the termination of the employment? i do not think it is. the bias of english law is to encourage business competition and to encourage the mobility oflabour. the protection given by the law to confidential information must, in my opinion, reflect that bias. it should not be applied so as to tie employees into a modern species of serfdom by making it impossible for them to exploit their acquired skills and knowledge otherwise than for their existing employers. it should not impose on them implied restraints in order to protect employers against competition. if the protection of an employer's confidential information is restricted to the protection that can be justified by implied contractual terms, or, of course, by valid express terms, then, in my opinion, the development of this branch of the law of confidentiality will be in accordance with principle and will reflect social needs and conditions. if, as i think has from time to 23. see, e.g., the injunctions granted in the cranleigh engineering case [1964] 3 all e.r, at p.303. 82 developments in the law of confidentiality time happened in the past, the necessity for a contractual justification for protection is lost sight of, the result will be serious injustice to the unfortunate ex-employees and an unjustified restriction on their ability to leave their employment and enter into competition. the right of privacy i have been discussing the law of confidentiality in a contractual context. my thesis is that the rights and obligations of the parties will be both created and limited by the circumstances and exigencies of the particular contract. rights and obligations in respect of confidential information may also arise in a trust context.24 here, too, the extent of the duty will depend on the particular circumstances of each case. there is no doubt, however, that obligations of confidence can regularly arise in circumstances that have nothing whatever to do with contract or with trust. the question whether these non-contractual and non-fiduciary obligations have their origin in common law or in equity is, to my mind, a sterile one. breach of them represents an actionable civil wrong arising otherwise than out of contract and otherwise than out of trust. i can see no objection in principle, whatever be the equitable or common law origin of these obligations, to classifying a breach of them as a tort. in a contractual case the breach will also be a breach of contract.25 in a trust case, the breach will also be a breach of trust.26 these narrower classifications are not inconsistent with the general classification of breaches of obligations of confidence as tort. the relevance of this classification is that recognition of the nature of noncontractual and non-fiduciary breach of confidence as tort leaves the exploration of the boundaries of the tort to be undertaken pragmatically case by case in much the same way as the boundaries of, say, the tort of negligence and the tort of nuisance are explored. within the tort of negligence there is recognition of the general principle that due care should be taken to avoid causing physical harm to others. it was at one time supposed that the tort did not extend to harm caused by a defective product to the consumer. this proposition was refuted by lord atkin's famous judgment in donoghue v. stevenson.27 it was at one time supposed that the tort did not extend to harm caused by negligent mis-statements. this was refuted by denning lj in candler v. crane, christmas28 and, lat~r and authoritatively, by the house of lords in hedley byrne v. heller. 29 dicta of lord wilberforce in anns v. merton london borough councipohave been treated as authority for the principle that due care should be taken to avoid causing economic loss to others. junior 24. see, e.g., phipps v. boardman [1967] 2 a.c. 46. 25. c/. midland bank ltd. v. heu stubbs v. kemp [1979] ch. 384. 26. see phipps v. boardman, supra n 24. 27. [1932] a.c. 562. 28. [1951] 2 k.b. 164. 29. [1964] a.c. 465. 30. [1978] a.c. 728. 83 the denning law journal books ltd. v. veitchi co. ltd. 31 may be regarded as an application of this principle. later cases have significantly narrowed its scope.32 i mention these cases in order to draw attention to the familiar way in which the boundaries of the tort of negligence have been extended or contracted by judicial policy decisions intended to reflect the broad social needs of the times. it is plain enough that this process involves an element of judicial law making. but i think it almost self-evident that judicial law making of this character is, or at least should be, more flexible and more responsive to the changing needs of society than the heavy hand of legislation. i return to the law of confidence. there are a number of judicial decisions which, by providing a remedy for the misuse of private confidential information have, in effect, given a measure of protection to privacy. it is possible to regard prince albert v. strange as the first case in this line. argyll v. argyll is a clearer example. the duke was subjected to an injunction restraining the disclosure in a national newspaper of intimate marital secrets. the injunction was obtained by his wife, the duchess. the injunction was not expressed to restrain the duke from including those secrets in his personal memoirs. it restrained publication of the secrets. the injunction was, therefore, quia timet. the tort, if that is what it is, of misuse of confidential information would have been committed by disclosure of the secrets to others. this decision by ungoedthomas j represented a recognition of the right of the duchess to have her private life kept private. the decision has been commented on in a number of subsequent cases but its correctness has never, so far as i know, been questioned. in stephens v. avery the plaintiff and the first defendant had been friends. in the course of the friendship the first defendant had become aware of a lesbian relationship between the plaintiff and another woman. the first defendant supplied details of this to the newspaper defendant. the newspaper published the story. the plaintiff claimed damages for breach of confidence. the defendants applied to have the action struck out. the vice-chancellor, sir nicolas brownewilkinson, declined to strike the action out. he held, in line with argyll v. argyll, that private information relating to sexual conduct was capable of being protected by the law of confidence.34 in both argyll v. argyll and stephens v. avery confidential information had been disclosed by the plaintiff to the defendant. but in argyll v. argyll it is likely that some of the relevant information had come to the attention of the duke not by disclosure on the part of the duchess, but by observation or participation or simply in the course of domestic cohabitation. there was no distinction drawn 31. [1983] 1 a.c. 520. 32. see, e.g., d f estates ltd. v. church commissioners [1989] a.c. 177, leigh & sillavan ltd. v. aliakmon shipping co. ltd. [1986] a.c. 785 and caparo industries p.l. c. v. dickman [1990] 2 w. l.r. 358. 33. [1988] ch. 449. 34. see also lennon v. news group newspapers ltd. [1979] f.s.r. 573. 84 developments in the law of confidentiality between disclosed information and information of the latter character. so it is not a necessary condition of protection that the information should have been specifically disclosed by a confider. this same point was, in another context, emphasised by lord griffiths in the spycatchercase.35 would the result in a rgyll v. a rgyll have been any different if the duke had kept private memoirs which had been stolen and if the intending publisher had been the thief? it is, in my opinion, inconceivable that in such a case an injunction against publication would not have been granted to the duchess. it would not have been granted on breach of copyright grounds for she would not have been the author. it would, i think, have been granted in order to restrain the misuse of confidential information. i have used the adjective "inconceivable" deliberately and, i hope, justifiably. what system of jurisprudence would regard as tortious the publication of the material by the confidant but would permit the publication of the material by the thief? the same point can be made regarding stephens v. avery. if the disclosure of the lesbian affairs had been made by letter and if the letter had been stolen and then published by the thief, would the plaintiffs claim in damages against the thief have been struck out? why should the thief be in a better position than the recipient of the letter? authority in support of the view i have been expressing is to be found in francome v. mirror group newspapers ltd .. 36 unidentified persons tapped telephone conversations to and from the home of the plaintiff, the then champion national hunt jockey. the mirror acquired the tapes and the plaintiff sued to restrain their publication. the conversations eavesdropped upon were obviously private conversations. so the injunction was sought on the ground that the mirror was under a duty to preserve the confidentiality of the conversations. the mirror's main defence was the "disclosure of iniquity" defence. the court of appeal declined, pending trial of the action, to allow the contents of the tapes to be disclosed to the public at large. the importance of the case for present purposes was the recognition that the plaintiff was entitled, prima facie, to have the privacy of his private telephone conversations protected. the contrary view expressed by sir robert megarry, vice-chancellor, in malone v. the metropolitan police commissioner37 should, in my opinion, no longer be regarded as good law. . the point has been made that protection against telephone tapping, or for that matter, the use of telephoto lens photography, confuses the duty not to misuse confidential information, which the law recognises, with the right to privacy, which the law does not recognise. it is, i agree, important in these so-called 'privacy' cases to be clear about the rights being protected and to distinguish between the boundaries of the tort of nuisance and the boundaries of the tort of misuse of confidential information. the injunction granted against the mirror in the francome case was designed to prevent the misuse of the confidential 35. [1988] 3 w.l.r. 776. 36. [1984] i w.l.r. 892. 37. [1979] ch. 344. 85 the denning law journal information. but disclosure of the information to the police or to the jockey club was not restrained. it would not have represented misuse.38 an injunction was not, however, granted to restrain telephone tapping. in the malone case the relief sought was a declaration that the tapping of the plaintifps telephone by the police had been unlawful, and an injunction to restrain future tapping. the plaintiff did not seek an injunction to restrain the use by the police of the information they had obtained from the past tapping. restraints against telephone tapping must, in my opinion, be justified by reference to the tort of nuisance. this tort protects against behaviour which unreasonably interferes with the occupation and enjoyment of property. nuisance by smell and nuisance by noise are common examples. nuisance, like the tort of negligence, has the merit of great flexibility. it enables and requires a balance to be struck between the reasonable requirements of members of the public for the peaceful and uninterrupted enjoyment of their homes and the reasonable requirements of others whose activities impinge upon that enjoyment. i can see no reason whatever why, in principle, telephone tapping might not represent actionable nuisance; most people would regard the tapping of their home telephones as an unreasonable interference with their enjoyment of their homes. but whether, in a particular case, the tapping would represent actionable nuisance would depend upon the purpose of the tapping. tapping by the police for the prevention of serious crime might suffice as a defence. on the other hand, injunctions to restrain the disclosure or misuse of private conversations must be justified by reference to the law of confidence. as with nuisance, the law should be recognised as being flexible. the purpose of the proposed use may be critical. in the francome case, it was publication to the public at large that was restrained. the confusion to which i have earlier referred would, i think, be avoided if it were recognised that the so-called 'right to privacy' is not, under english law, a free standing enforceable right but is the result of the protection given by a variety of different torts. the tort of trespass provides protection against physical invasions of private property; the tort of nuisance provides protection against unacceptable interference with the enjoyment of private property; the tort of misuse of confidential information as i would call it provides, or ought to provide, protection against the misuse of private information. the three together provide rights that can compendiously but inaccurately be described as rights of privacy. enforcement must, however, identify the apposite tort and bring the complaint within the acceptable boundaries of that tort. it is, i suggest, now established that private conversations, whether recorded by a party to the conversations, or misappropriated by the theft of some written record, or obtained by the tapping of a telephone, will be protected against misuse. so, too, would intimate family or personal details known to a member of the family 38. see also re a company's application [1989] ch. 477. 86 developments in the law of confidentiality or of the family circle be protected against misuse. the cases to which i have referred establish that that is so. there is, in my opinion, no sensible reason in principle or in practice for distinguishing between the eavesdropper who overhears private conversations, the "peeping tom" who spies through the bedroom curtains, or the intrusive photographer with his long-range telephoto lens. each of these is, in one way or another, coming into possession of private information. whether the culprits can be restrained from continuing their disagreeable practices does, i think, depend on the scope of the tort of nuisance. but whether they can be restrained from publication or other commercial exploitation of the information depends, or should depend, on the law of confidence. it is at this point that i must mention a case, kaye v. robertson, reported in the times on 21 march 1990. as yet a full report is not available. but the facts provide an apt test for the application of the principles and approach for which i have been arguing. the plaintiff was a well known actor, mr gordon kaye, suing by his next friend. mr kaye had been involved in a car accident caused by severe gales. he had suffered serious injuries to head and brain. he was taken to hospital and placed under intensive care. a journalist obtained unauthorised access to mr kaye's hospital bed. there the journalist took photographs of mr· kaye, including photographs of the scars on his head. the journalist had no effective consent by mr kaye to take these photographs. he was in no better position than if the photographs had been surreptitiously taken with a zoom lens from across the street. the judge at first instance, potter j, granted an injunction to restrain the publication of the photographs. the court of appeal discharged the injunction and did so, expressing regret, on the ground that english law did not provide a remedy for invasion of privacy. in my respectful opinion, this decision paid insufficient attention to the developing law of confidence. it does not appear from the abbreviated report in the times that any submission was made as to the application of the law relating to the misuse of confidential information. but, in my opinion, the application of established principles of the law of confidence should have led to the dismissal of the appeal. it must be accepted that if a family friend or relation had, with mr kaye's consent, taken the photographs for the purpose of a family album, the friend would have been restrained from publishing the photographs in the national press and a newspaper which had purchased the photographs from the friend or relation would be unlikely to be in any stronger position. argyll v. argyll would, in my opinion, be a clear authority to that effect. if the photographs of mr kaye's head had, with mr kaye's consent, been taken by a doctor for the purpose of use in a teaching hospital or for an illustration in a learned journal, the doctor would have been restrained from general publication and a newspaper purchaser from the doctor would be unlikely to be in any stronger position. if a doctor had taken the photographs without mr kaye's consent he might have been able to justify publication in a medical journal or for teaching purposes provided he avoided 87 the denning law journal identifying mr kaye as the subject, but would not have a hope of justifying publication in a national newspaper which revealed the identity of mr kaye as the subject of the photograph. how did it come about that the court of appeal treated the unauthorised photographs taken by a trespasser as giving more extensive rights to the photographer than would have been the case had permission been sought? in my opinion, expressed with diffidence pending the availability of a full report, the court of appeal concentrated on the absence of a so-called right to privacy rather than on the content of the photographs and the circumstances in which they were taken. the photographer should, in my opinion, have been held to be no more entitled to publish his photographs than the daily mirror was entitled to publish the transcripts of the tapped telephone conversations in the francome case. the court of appeal decision in kaye v. robertson is, in my view, inconsistent with the earlier decision in francome. there is, however, no indication from the report in the times that francome v. daily mirror was cited or, indeed, that the breach of confidence line of cases was mentioned at all. in the times report of kaye v. robertson, bingham lj is reported as saying that "the case highlighted the failure of ... the common law of england ... to protect in an effective way the personal privacy of individual citizens." leggatt lj is reported as saying that a right to privacy "had been so long disregarded here that it could be recognised now only by the legislature ... " these gloomy prognostications may turn out to be right. but, it seems to me, judicial willingness to explore the boundaries of the protection that can be given to confidential information can cover much of the area that the dicta in kaye v. robertson treat as unprotected by the law. it is, i repeat, now well established that for information or material to be protected on the ground of confidentiality it is not essential that there should be a 'discloser'; it is not essential that the information or material should have been received from the person claiming to be entitled to the protection; it is, ithink, established to be sufficient if the information or material is obviously of a private nature and if it is obvious that consent by the person who is the subject of the information or material to its publication would not be given. if this requirement is satisfied, the availability of protection against publication should depend upon the familiar balance being struck between the public or private interests to be served by keeping the material private and confidential and the public or private interests to be served by publication. as long ago as 1913 swinfen eady j said in ashburton v. pape39 that "the principle upon which the court of chancery has acted for many years has been to restrain the publication of confidential information improperly or surreptitiously obtained ... " it is but a tiny step to regard photographs taken surreptitiously as potentially within the scope of this dictum. i can see no reason why, some 77 years on, with the judicial development of concepts of confidentiality that has taken place in the meantime, 39. [1913j 2 ch. 469. 88 developments in the law of confidentiality the common law (including, for this purpose, equity) should not provide the right to privacy that the facts of kaye v. robertson seem to demand. provided the flexibility of the developing tort of misuse of confidential information is accepted and used, i do not believe there is a need for legislation. conclusion i have in this article dealt with two very disparate aspects of the law of confidence. but i think they provide an interesting contrast. in the employer/employee cases, misuse of confidential information concepts have in the past been over used for the purpose of placing unjustifiable restraints on the ability of ex-employees to carryon competing businesses. however, the law has now been stabilised by the court of appeal decision in faccenda chicken v. fowler. in the privacy cases, on the other hand, an apparently fruitful development of the law by means of the application of misuse of confidential information concepts has appeared to be blighted by the court of appeal decision in kaye v. robertson. it is to be hoped that the blight is no more than an un seasonal frost and that the sun will soon shine again. i do not see any reason why it should not. 89 more law less orderliness andrew durand" "a sovereignty over sovereigns, a government over governments, a legislation over communities, as contradistinguishedfrom individuals, as it is a solecism in theory, so in practice is it subversive of the order and ends of civil polity. " james madison and alexander hamiltonl to persuade the electors of new york to ratify the new constitution of the united states giving congress power to legislate directly over citizens of the united states rather than the alternative of giving congress the power to coerce states to pass federal legislation, madison advanced this dreadful theory. whether a sovereignty over sovereigns is an appropriate description of the european union, and, whether it has been subversive of the order and ends of civil polity, will be explored. although it was certainly designed as a step on the path towards some still undefined political union which would be capable of managing a foreign policy, the european community treaties were not constructed as a constitution, let alone as a federal constitution, but rather as a number of sophisticated procedures to enable sovereign states to work together, in some defined cases, as a league of states and, in still narrower circumstances, produce joint decisions. the development of some form of largely unwritten constitution on the basis of the original treaty structure, together with the maastricht changes, in part by the european court2 and in part by conventional acquiescence of a majority of the • professor of european law, the university of buckingham. this is a revised version of an inaugural lecture delivered at the university of buckingham in april, 1996. 1 alexander hamilton, the federalist no.20, (2nd.ed.,blackwell) at 97. 2 the case of van gend en loos v. nederlandse belastingsadministratie (case 26/62) [1963] e.c.r. 1 contains the court of justice of the european communities' fundamental assertion that the e.e.c. treaty, as it then was, set up a new legal order in national law. that assertion is and remains entirely a priori. the denning law journal member states, has been frustrated by britains's alleged intransigence in refusing to accept this unwritten constitution as opposed to the rules of the written treaty. the united kingdom government's white paper, produced for the maastricht ii intergovernmental conference, a partnership of nations, presents the conclusion that the united kingdom could continue this stance or, at least, contain the development of this constitution indefinitely. this conclusion seems to me to be mistaken. both the development of the unwritten constitution and britain's intransigence have gone about as far as they can and somewhat beyond with regard to the underlying; legislative policy of the european community. whether or not it becomes easier to pass legislation under the present legal system, as it probably will, paradoxically, what will continue to emerge is an entity with an ethic that more closely belongs in a unitary state than in a federal state or, if in a federal state, in one conceived on the highly unitary model of germany, rather than on that of the united states, with, at least, its rhetoric of state rights. the current expression to describe the sort of edifice that is emerging is "cooperative federalism"3 but that expression masks the reality of the coercion behind the notion of community loyalty or bundestreue, the original concept in the german model. it is given surprisingly sharp teeth by the court. 4 finally i suggest that the only way to influence a union, where the sole or main criteria for the location of legislative competence, efficiency, has become deeply entrenched in the legal thought process, is to open up a real debate on an openly federal solution contained in a document, which is accepted and publicly acknowledged by all to be a memorandum of the constitution of the european union.s in u.s. politics this expression refers to the technique of making federal funds available to a state only on condition that the state comply with certain federal policies as opposed to the naked force of the european union model. 4 although art.5 e.(e.)c. treaty, on which community loyalty is based, could not itself give rise to rights, that article has been developed as the general launch pad for new remedies in the state court for breach of european community, most recently francovich liability: francovich and banifaci v. italian state (joined cases c-6 & 9/90)[1991] e.c.r. 1-5357. see the notion of bundestreue which may well be a better analogy, the operation of which is explained in herdegen, "after the tv judgment of the german constitutional court" (1995) 32 c.ml.rev. 1369 at 1374. s there have been various unofficial attempts to draw up an acknowledged constitution. the european parliament went through the unusual process of asking a number of academics to draw up a constitution for a european union which was an exercise in political fantasy. the 2 more law less orderliness the concept that the treaty contained overriding rights of free movement which could be vindicated by subjects, against even their own states, was one that has led to significant benefits and should be accepted by all who believe in the merits of a truly common market. 6 nothing in this article is designed to question, in any way, the significant contribution that the court of justice of the european communities has made in ensuring that we have such a single market in europe.7 the united kingdom also claims to have played a rather important part in that development. 8 the progressive extension of powerful and still dubious techniques, developed in the infancy of the union, to ensure compliance with the basic rules of the union, to ordinary directives, excites worry. that way lies a centralist union. maastricht treaty was clearly a treaty on european union rather than a treaty of european union even though it purports to constitute a european union. that it was still using "union" in the sense used in the western european union or in the phrase an ever closer union, as an aspiration or sense of direction rather than as a document that really acknowledged the constitution of a european union, is clear from the fact that it left the european community treaty structure intact. only the european community had legal personality. 6 the rule requiring states to refrain from unreasonably interfering with interstate commerce, the negative commerce clause, was found by the u.s. supreme court to be implicit in the grant of power to the united states congress to regulate commerce. in the european union it is the opposite way round. the negative commerce clause is express. the power to legislate is rather more circumscribed. the concept of a common market and the concept of an internal market have occasionally been juxtapositioned in an effort to show that the internal or single market involved even greater harmonization than the original concept of a common market. it required a degree of internal regulation which would once have been thought of as involving a common policy. see in particular the titanium dioxide (tiol) case, commission v. council (case c-300/89) [1991] e.c.r. 1-2867where the court emphasized, in effect, that disparities in conditions of competition caused by legislation justified under art.looarather than leaving it to the market to resolve. although the tiol decision is still good law, it has hardly ever been followed. 7 the decision of the european court in brasserie du pecheur s.a. v. germany and r.v.secretaryofstatefor transport, ex parte factortame (no.4) (joined cases c-46 & 48/93) [1996] e.c.r. 1-1029 and r. v. ma.f.f., ex parte hedley lomas (ireland) ltd (case c-5/94) [1996] e.c.r. 1-2553 would most clearly be justified if they were based on the fundamental principle of free movement. there would then be a concept of fundamental constitutional rights which a state interfered with at its peril. unfortunately this was not the ratio of those cases. 8 as the government points out in its white paper (a partnership of nations, cm.3l69) claiming, at least in part, credit for the achievement of the then commissioner, lord cockfield. 3 the denning law journal although a directive always gave instructions to the member states, it was not designed to give instructions directly to the courts of the member states or to their local governments and industries. the transformation of the directive, 9 from its original concept as an international decision, like the decisions of the north east atlantic fishing convention, into not merely a law-making instrument like federal legislation, but into an instrument in which, even trivial obligations imposed on states, are guaranteed in the same way as the bill of rights in the u.s. constitution or the fundamental rights of the german constitution, poses serious problems both conceptually 10 and in practice. this fundamental constitutional change is inconsistent with the instrument, described in the treaty as binding on the member states to which it was addressed, as to the result to be achieved and involves, once more, the added theoretical difficulty of recognizing a power in the european court to rule on the effects of the directive within each statey the change in the nature of the directive has come about, in part, because of the problems with slower or recalcitrant states. 12 the treaty provided ample means to shame such states into compliance by being brought back to the european court to answer for their failure. unfortunately the increasing and 9 in french the term indicated administrative instruction from a hierarchical superior (perhaps the administrative circular): see for example rene david major legal systems of the world today (3rd.ed., sweet & maxwell, 1985) at 360. 10 the directive was designed as a legislative instrument which would interfere least with state legislative procedure by leaving the power to formulate and lay down the rules to the member state. it was not therefore directly applicable. an instrument that is not directly applicable but only indirectly through the instrument which is passed under state law should not be capable of directly giving enforceable rights to subjects. 11 the court was given the power to interpret the treaties and european community legislation. it was given no power to rule on the effects, in a member state, of breach of the european community treaty by a member state. the european court, in its famous van gend en loos decision supra.n.2 got round this by holding that it was simply interpreting the treaty as impliedly requiring effects to be produced. it still left it to the state authority to fathom out what these effects actually were. the european court had to resort to its familiar double negative argument which relies on stating that art.189 does not say that it does not produce effects; a very strange argument indeed. 12 belgium and italy, notoriously, had difficulty in complying with european community directives by the date laid down, or even, in some cases, by a considerable date thereafter, because of their respective constitutions which gave considerable autonomy to their regions. italy took measures with the famous pergola law to change its record of compliance. 4 more law less orderliness entirely proper zeal of the commission over the last decade may have given the appearance that matters were worse than they seemed. as one would imagine, in a union of states with very different constitutions, by far the largest problem with directives has concerned and, indeed, still concernsfonnal non compliance, i.e. failing to adopt the required legislation to give effect to the directives into national law by the date laid down but the problem is by no means as chronic as the cases might suggest. of these failures, a distinction should be drawn between total non compliance which may be caused by legislative difficulties in getting the necessary legislation through the bundesrat or the state parliaments or because of the general difficulties of the legislative process, and the far rarer case of contumacious non-compliance. similarly partial non-compliance, getting it wrong, can be either intentional or negligent. given the wide powers of the government in england under the european communities act 1972, total non-compliance is infrequent, so that it is not surprising, that we are rarely in trouble on that ground. a few cases concern partial non-compliance where the state has purported to implement the directive, but has done so incorrectly, where, i suggest, at one time, an individual directive might have been more properly issued. at any rate that device, which was contemplated by the original treaty, has hardly, if ever, been used. 13 when the united kingdom is taken before the european court, it often concerns a more fundamental disagreement between the united kingdom and the commission as to the meaning or scope of a directive. 14 the failure to enforce a directive that the united kingdom has duly implemented, substantial non-compliance, is largely unknown. given the united kingdom's system of independent enforcement officers and its conception of the rule of law, once a directive has been transformed and the transitional provisions have expired it is likely to be enforced. the deliberate failure to enforce a duly transformed directive does certainly happen. for example germany did properly implement the first company law directive but 90% of affected companies took no notice and did not file accounts. no action was taken against them. similarly spain implemented the slaughterhouse directive but provided no sanctions for those who slaughtered in a manner prohibited by the directive. there is a widespread view that much of european community law, although perhaps properly 13 many scholars have assured me that there are directives addressed to individual states but i have never actually found one nor seen one cited in a case. 14 for example over the environmental impact assessment directive no. 85/337 0.1. 1985 (1.175/446). 5 the denning law journal transformed remains substantially unenforced. 15 again that can be controlled by better reporting processes and does not necessarily require the creation of private law remedies. the commission recently gave us a glimpse of its concept of the directive in its 12th.report on compliance with community law by praising luxembourg, commenting that: luxembourg makes a great effort to see that community directives are properly transposed, regularly taking them over word for word so that divergences from community law are rare.16 it further pointed out that in luxembourg the enforcement officers were the same as those who drafted the state regulations. such a technique would not work in the common law world without an increased reliance on the continental technique of binding administrative interpretations and administrative appeals since the rules in most directives are kept at such a level of generality and are often such an odd compromise that it would require either litigation or a change in the rule of law to give the directive any precision . in the united kingdom the concept that the administration can give precision to an instrument, after it has been laid before parliament, even with the possibility of testing the issue in the administrative courts, is a solecism, although quite normal in many jurisdictions. we still expect the instrument to contain a complete set of instructions which lawyers can interpret with reasonable accuracy. traditionally the english lawyer's training in drafting deeds and contracts was the same as statutory drafting. it fits in with the tendency to conceive of rules as detailed prescriptions, in contrast to the more continental view of rules as being at a greater level of generalization in which the subject must try to follow the more general wishes of the ruler. a more comfortable relationship between enforcement officers and the commission will lead on the one hand to a more uniform interpretation but on the other to a greater sense of centralization. the european court has, with remarkable success, ensured that most directives 15 although there is much anecdotal evidence in the newspapers there is surprisingly little actual evidence. the commission's annual report to the european parliament on compliance gives a few examples. 16 see the commission's 12th. report on compliance, 0.1.1995 (c.254) at 6. this copy out method has been used in england. see in particular the regulations passed to give effect to unfair terms in consumer contracts directive (s.1. 1994 no.3159). 6 more law less orderliness can effectively be enforced in the courts of the member state, as a matter of state constitutional law. applying its basic principles, it has developed a number of techniques to ensure that, where possible, there is a state remedy to prevent breach of a directive. in the early days, the court indirectly gave effect to directives, by finding the objective sought by the directive to be already implicitly contained in the treaty and capable of giving rights to subjects. the court could give force to the directive in the guise of applying the treaty: that is one explanation of the equal pay cases. the court bypassed the issue of whether the equal pay directive could be regarded as law in the member state, by reading the principle contained in the directive, back into the treaty with the devastating effect that the obligation became backdated from 1976 to 1962. it is often said that there is a special difficulty for an english lawyer in learning how to deal with very broad principles, such as the principle that men and women should be paid equally. what is often not explained is that that principle is not actually to be found in the treaty. it is, at best, a general principle implied in the treaty. what the treaty actually required was that each member state, by a particular time, ensure the application of the principle that men and women should be paid the same. they were required to pass legislation. it should be contrasted with the terms of article 3 of the german constitution which lays down that: "men and women have a right to equality. no one shall be favoured or disadvantaged on grounds sex." no one could doubt that each sovereign state had covenanted with the other sovereign states to ensure from a particular date the application of that principle. it was an enormous leap to hold that, even where a state had not carried out its duty, an aggrieved person could nevertheless treat its employer, as if the state had passed the relevant legislation to comply with its duty. the reasoning that the court applied to the interpretation of article 119 was later to be applied, with devastating effect, to directives issued by the community legislature. it held that a court of a member state could itself execute the obligation placed on a member state: it could itself make good the failings of the legislature. its second technique was to hold that courts and tribunals were under a duty to interpret state law, so that it gave effect to the directive, as interpreted by the european court. although this might sound a relatively anodyne conclusion for an active court to reach, it was extremely radical when juxtaposed with the court's original and creative method of interpretation of many of the directives. it postulated that the overriding aim of the treaty or of legislation passed by the institutions was to achieve uniformity of application. since this was its aim, the 7 tiie denning law journal directive should be interpreted as having achieved its purpose. words in a directive were therefore to be given a special european meaning. the european court could bring about quite radical changes in law by giving words a particular meaning: see for example the many cases in which the court has given remarkable breadth to the word "pay" in article 119 of the treaty and in the equal pay directive (the decision in barber v. guardian royal exchange, 17 which produced its radical result from a significant extension of the notion of pay, without any discussion of the alternative proposition). a consideration of the consequences of the interpretation adopted by the court, is relevant in this context only to the issue of whether the court should exercise its quite extraordinary power to suspend the operation of a provision for the past, which it has just declared has always been the law, a power normally belonging only to a legislative body. although the european court had always emphasized that directives had to be interpreted in the light of their purpose, until the court had deduced, from the preamble, what the overriding purpose of the instrument was, it might be very difficult for the relevant department of state to get it right. 18 often in the preamble of a directive there are remnants of earlier drafts and earlier purposes. the choice depends on the political concept of the kind of community is intended. 19 this is particularly evident in the case of the three social directives, the transfer of undertakings (acquired rights) directive, the collective redundancy directive and the insolvency directive where the concept of undertaking, business or part of a business came to mean, whatever concept would make the protection guaranteed by the directives as extensive as possible, without a nod to the economic problems that might ensue. 20 in a state system such radical interpretation causes no insurmountable problems because the 17 (case 262/88) [1990] e.c.r.i-1889 18 in the tid2 case, supra.n.6, where the court concluded that the overriding purpose of the directive was to equalise conditions of competition. it further held that that purpose was by implication a legitimate purpose of art.! ooa. finally it held that in the light of that purpose only art. 1ooacould be used as a legal base. 19 the lawyer with inside knowledge may well be in a better position to advise a client than the lawyer confined to the text of the measure. the former will be able to keep track of the intentions of the commision and relay that to his client. 20 directive 75/129, oj. 1975 (l.48/29); directive 77/187 oj. 1977 (l.61/27); directive 80/987 oj. 1980 (1.283/23). 8 more law less orderliness legislation can always be changed by act of parliament or government regulation. in the community without a proposal from the commission it is in effect entrenched as part of the constitution and in practice unalterable. 21 where no legislation was passed to give effect to the directive, either intentionally or negligently, or because english law was wrongly assumed already to comply with the directive, there was, according to the court, still an obligation to make existing law comply with the terms of the later directive, in so far as it was possible to do so: " ..a national court hearing a case which falls within the scope of [the] directive [....] is required to interpret its national law in the light of the wording and the purpose of that directive in order to [produce the result required by the directive]. "22 the court has moderated this obligation on a number of occasions and, in particular, in the case of state criminal legislation because of the danger of falling foul of the fundamental principle that no one should be punished except for a distinct breach of the law. where a directive required the state to impose criminal sanctions on subjects and the member state failed to change its laws, in any subsequent criminal prosecution for commission of a more general offence, such as selling food unfit for human consumption, the prosecutor could not rely on the terms of the directive to fix the content of the standard:officier van jus/we v. kolpinghuis nijmegen b. v. 23 and pretore di salo v. persons unknown.24 it would seem to follow that where a state has implemented the directive it would be wrong to go behind the detail of the state legislation to the text of the directive, to give precision to a criminal offence, except, possibly to acquit the accused. given the court's method of interpretation, where a statute was passed specifically to give effect to the directive, it might well hold that the distinct 21 thereis one exampleonlyof thememberstates'unanimousamendmentof the treaty to lay down a preferred interpretationof the treaty: see the barber amendment"protocol concerningarticle 119 of the treatyestablishingthe europeancommunity." 22 marleasing s.a. v.la comercial lnternacional de alimentacion s.a.(casec-l 06/89) [1990] e.c.r.1-4135. 23 (case 80/86) [1987] e.c.r.3969; 19892 c.m.l.r.18. 24 (case 14/86) [1987] e.c.r.2545. 9 the denning law journal breach of the law was defmed in the directive together with the law passed to give effect to the directive. this would arise typically with a standardization directives such as, for example the electro magnetic compatibility directive, 25regulations for which became enforceable at the beginning of 1996. they may have laid down more generous transitional arrangements than the directive intended. some of the enforcement authorities, which had dealt with the commission directly, . inevitably read the english regulations in the light of the commission's intentions and interpretation. fear, uncertainty and doubt will effectively mean a change in the relationship with the executive. english methods of interpretation will have to become more open-ended and less precise, or more dependent on insider knowledge. in practical terms there cannot be two systems operating at the same time: one where a criminal penalty is being considered and one where the authorities seek an injunction. nor can there really be one rule for regulations which lay down criminal sanctions and another for other regulations. if the united kingdom increasingly adopts what are thought of as european methods of interpretation, particularly if the copy out technique is used, we will see a growth in the power of the executive and the discretion of the judiciary at the expense of the legislature. this particular interpretation principle is clearly very far reaching indeed,26 and goes far beyond the pepper v. hart 27type of principle. there is nothing theoretically difficult in the executive being bound by the explanation it gave to parliament. it is clearly a wholly different doctrine where the terms of a directive cannot be relied on at all but instead recourse must be had to some very broad general principle the contours of which could only be known to the court. if the state failed to implement the directive, or wrongly implemented the directive, the european court further held that an aggrieved person might be able to get a remedy to stop the state from applying inconsistent state law. at 2s directive 89/336 o.j. 1989 (l139/19), as amended by the terminal equipment directive, oj. 1991 (l.128/1) and directive 93/68 on the ce mark, oj. 1993 (l.290/l), implemented by the electromagnetic compatibility (amendment) regulations 1994, s.i. 1994 no.3080. 26 this principle is described as the doctrine of indirect effect to point up that it has nothing to do with ordinary techniques of interpretation. 27 [1993] a.c.s93. 10 more law less orderliness one time this was called the estoppel effect of a directive.28 the extension of this principle to a so-called emanation of the state, such as a health authority or a nationalized industry, which could, just as if it were the government, be stopped from doing anything which contravened, for example, the equal treatment directive 29 even though neither a health authority nor a nationalized industry could have implemented the directive, shows the difficult conceptual problems. a health authority can be stopped from behaving inconsistently with the directive. it is not clear whether the doctrine goes further. it is still not altogether clear whether, based on the directive alone, an emanation of the state would have power in the absence of any statutory grant to behave consistently with the directive, as if the directive had been implemented, even if this meant depriving a citizen of a right previously enjoyed under state law. yet this seems to be the implication of much of the modern case law. the court has so far steadfastly refused to hold that a directive can ever give a right to one subject which it can enforce against another subject. that would have involved holding that a directive could directly impose obligations on a subject. yet if a directive could give directions to a health authority or nationalized industry there is no theoretical reason why it should not direct everyone. ownership is irrelevant. in my opinion it is right that there can be no allegation against a subject that it has broken the terms of a directive. it is the emanation of the state doctrine that is hard to justify. to the relief of many the european court stuck to this distinction in faccini dori v. recreb sri. 30 in that case it signalled to the member states as well as to its own advocates general that it was not ready to extend the doctrine. nevertheless even though a directive cannot directly impose an obligation on a subject it might still do so indirectly. where the state was under a positive duty to do something it looked, at first, as if there was nothing that an aggrieved subject could do, until some appropriate legislation was passed.inevitably the principle of effectiveness led to granting a remedy even here. in fratelli costanzo spa. v. commune di milano the plaintiff had tendered for the construction of a football stadium in italy. 31 his bid was disregarded, consistently with italian law, on the grounds that it was unreasonably low. unfortunately under the public procurement procedures 28 publico ministero v. ratti (case 148/78) [1979] e.c.r.1629. 29 directive 76/207 oj. 1976 (l.45/19). 30 (case c-91/92) [1994] e.c.r. 1-3325. 31 (case 103/88) [1989] e.c.r. 1839. 11 the denning law journal directive, which was designed to prevent a state discriminating againstforeign firms, there could be no simple rejection of a bid on that ground, without a proper procedure of enquiry. 32 the milan local authority was of course bound by italian law. the issue arose as to whether it was bound to follow the proper procedure laid down by the directive. the court held, against the advice of its advocate general, that the rejection of a bid, without following the proper procedure, was contrary to the directive. the advocate general considered that would mean that the directive directly obliged the milan town authority to follow a particular procedure even though the directive had not been implemented. the indirect obligation arose from the fact that the court had failed to address the position of the contractor which had successfully tendered for the contract. the action in the state court was it seems to annul the decision to award the contract. the successful tenderer was thereby deprived of a right that it enjoyed under italian law by virtue of an unimplemented directive. this is not very different from imposing an obligation directly on a subject. similar issues arose with the environmental impact assessment directive which had caused difficulties in most of the states. 33 the court held that planning permission which was granted, without holding an environmental impact assessment, was illegal. a local authority had to take what instructions it could, directly from the directive, rather than await national legislation, even though there could be no certainty how, under national legislation, the directive might have been implemented. this was the point made by germany in the case that arose out of an extension to a power station in the local authority area of hesse darmstadt. 34 germany pointed to the huge range of discretion left to member states which could integrate the environmental impact assessment into the normal planning process or could lay down a special procedure. by virtue of the directive alone, and without waiting for the enactment of relevant legislation, it seems that the local government of hesse darmstadt, could and should have implemented the environmental impact directive. germany was in breach of the directive because the government of hesse darmstadt had not complied. this would mean, it seems, that a local government would have had the statutory authority to require the production of reports and documents from an applicant even though the directive had not been implemented and there was no statutory 32 directive 71/305 o.l 1971 english spec. ed. 1971(ii), 682. 33 environmental impact assessment directive 1985 supra.n.14. 34 commission v. germany (case c-431/92) [1995] e.c.r. 1-2189 12 more law less orderliness warrant under state law, or it could mean that the planning authority would have to decline to proceed until the directive was properly implemented. either way it would be certain of litigation either for breach of the state rule of law or the european rule of law .. a further complication with such directives as the environmental impact assessment directive, is that they have to slot into complicated planning processes, involving the review of plans at various stages. sometimes outline planning permission will already have been granted, in others some negotiations will already have taken place. the directive was properly vague about the transitional arrangements but the court has held that, if a state was late in transposing a directive, it could not provide additional transitional rules, whereby projects already on course, did not need to comply with the directive. it held that projects initiated, after the date for compliance, had to be subject to the directive. this could mean, in effect, that the planning authorities would have to start enforcing the directive even before the national authorities had passed or were required to pass the necessary legislation unless the directive specifically permitted a further transitional period. "form and methods" in a directive like the environmental impact assessment are central. the court sees the extraction of minimum rights directly from the directive as part of the process of ensuring compliance, rather than as making sense of the process itself. judges and advocates general can be impressively candid about this process: m.leger, one of the advocates general said in his lomas opinion that his analysis of the cases demonstrated how "the principles of direct effect and indirect effects were simply expedients designed to ensure the enforcement of community law ...."35 the latest stage on the transformation process was the recognition, by the european court, that formal non-compliance or partial non-compliance was a new community wrong, giving rise to an action in damages in the municipal court, presumably in the nature of tortious or aqui11ian liability against the state, and possibly an emanation of the state. the most obvious difficulty, in principle, in creating a remedy in damages, was that the court had also stated, as a general principle, that the treaty was not intended to produce new rights of action or alter existing rights, except to hold that these were now to be available to enforce european law. 36 since there was 35 supra.n.7 at 2575 para.80, quoting from j.steiner, "from direct effect to francovich: shifting means of enforcement of community law" (1993) 18 e.l.r. 3 at 10. 36 rewe v. hauptzollampt kiel (case 158/80) [1981] e.c.r. 1005 at 1838 para.44. 13 the denning law journal no liability, in many of the member states including the united kingdom, for conduct by the government, acting as a government, for legislative activity, a remedy of damages was a true act of creation by the european court. this is what it did in the now famous case of francovich v. italy. 37 in that case italy had been duly condemned, in a direct action, for failing to introduce legislation, to comply with the insolvency directive. under this directive, every company was required to set up a redundancy fund. if the fund was not sufficient to pay the redundancy, then this was to be guaranteed by the state. the state was therefore to be paymaster of last resort. since the legislation had not been passed and since italian law provided nothing similar to the obligation under the directive, there was no opportunity for a claim by two employees against their employer, which had become insolvent. they, therefore, claimed damages against the government. the court held that the principle of effectiveness required there to be a remedy in damages. the final irony of the case occurred, when italy, later, transposed the directive into state law but nevertheless excluded the claim of persons in francovich's position because of the type of company concerned. when the case came back to the european court in francovich (no.2) the european court was forced to concede that, under the directive, a company such as francovich's could be excluded.38 the whole basis for concluding, that there should be a remedy in damages, was based on wrong set of assumptions. francovich might be legitimately extended to a case such as dillenkofer and others v. germany39 concerning the package holidays directive. 40 under the package holiday directive, member states were required to ensure that package tour operators were fully bonded to cover their customers in the event of their bankruptcy. germany was over 18 months late in transforming the directive into gennan law. the plaintiffs had all purchased package tours but the holiday operators went bankrupt, either before the start of the holiday or, in one case, after the outward flight but before the return flight. the plaintiffs were aggrieved by the fact that, if the directive had been transformed into german law by the due date, they would have been protected against the insolvency of the holiday 37 supra.n.4. 38 andrea francovich v. italy (case c-479/93) [1995] e.c.r. 1-3843. 39 dillenkofer and others v. germany (joined cases 178,179,188,189 & 190/94) [1996] e.c.r.i-4845, tesauro opinion at 4848. 40 directive no. 90/314 oj. 1990 (l.158/59). 14 more law less orderliness operator. the advocate general took the view that the directive was intended to protect holiday makers, that it was clear that the holiday maker was to be reimbursed in the event that the operator went bankrupt and the damage was caused by the failure of the state to transform the directive on time. of course had the directive been transformed on time, holidays would have been more expensive because tour operators would have been bonded. some operators would not have survived. there would have been a guarantee by the industry itself which would have been paid for by a further levy. the passenger pays a lower price for a holiday which he knows is not guaranteed but nevertheless has the right to be treated, as far as the advantage is concerned, as if the state had passed the necessary legislation even ifhe is entirely ignorant of the obligation on the state to pass the necessary legislation. in his lomas opinion in 1995, the advocate general, m. leger, opted enthusiastically for a very wide principle of state liability that aroused such concern in this country, that the rather more modest principle later adopted by the court itself, appears to have come as something of a relief. 41 the extension of the principle to incorrect transposition as opposed to non transposition, was discussed most recently in r.v. hm treasury, ex parte british telecommunications p.l.c. 42 the united kingdom had incorrectly implemented the public procurement (excluded areas) directive, by itself deciding matters which, under the directive, ought to have been left to the telecom companies. it is a remarkable directive because in terms it appears to place obligations directly on companies rather than requiring states to impose obligations on companies. in the event the united kingdom itself imposed an obligation on b.t. to seek clearance in certain cases from the sponsoring department whereas it should have required the telephone companies to deal directly with the commission, when it, the company, believed it came within the directive. i suppose it is an example of where a directive could simply have been copied out again as a british regulation. as regards b.t.'s claim to damages the court considered that the obligation to pay damages arose wherever the loss sustained by an individual stemmed from the application of national legislation implementing a directive which proved to be wrong, so long as this was a grave and manifest breach of the directive. since the united kingdom had adopted a plausible interpretation of the directive, 41 supra.n.7. 42 (case c-392/93) [1996) e.c.r. 1-1631. 15 the denning law journal albeit wrong, and, since neither the commission nor the case law of the court would have made the error clear, there was no liability to make good any loss suffered by b.t. the importance of this decision, however, is that the british government had merely got part of the detail of the implementation wrong. the directive was not one intended to require states to confer rights on telephone companies, like the equal treatment directives on people, or the package tour directive, but rather to get states to impose on telecom companies new duties. it suggests that the simple failure to transpose a directive in time could give rise to damages if the mistake was grave and manifest. the right, that the court is safeguarding, is the right to uniform treatment. a state could not avoid liability for the incorrect implementation of a directive by having the legislation passed as an act of parliament. this was settled in factortame (no.4r3 where the plaintiffs, british companies which operated fishing vessels, the beneficial owners of which were spanish fishing interests, claimed they had been forced to sell vessels at a loss or shares at a loss after they were removed from the british shipping register since although their right to register had been restored after factortame (no.1) 44 and fully after factortame (no.2) 45 they had, in the meantime, been forced to sell their vessels at a loss. the significance of the case was that the decision to take away the right of such spanish ships to be flagged as british ships was contained in regulations adopted under an act of parliament which was passed with that very purpose. in spite of germany's elegant plea in the parallel case brasserie du pecheur,46 that such constitutional liability should only be created by a solemn constitutional act and not by ajudgment of a court, the european court claimed that it had the right to create this remedy because first, in many of the state legal systems courts had created such remedies. secondly, the treaty did not say that there was no such remedy. thirdly, in intemationallaw infringement remained infringement by the state even where it was caused by an act of parliament and fourthly, a remedy in damages would be a useful weapon in the community's 43 supra.n.? 44 r.v.secretary of state for transport, ex parte factortarne ltd (no. 1) (case c-213/89) [1990] e.c.r. 1-2433. 45 r. v.secretary of state for tramport, ex parte factortarne ltd (no.2) (case c-221/89) [1991] e.c.r. 1-3905. 46 supra.n.? 16 more law less orderliness armoury. the argument for this massive change is once more expediency. ~ e ingredients of the claim, both the german court and the high court aske the european court of justice to give some precision. in germany, it ap eared, there was only liability, at least in theory, where the government had deprived an individual or group of a constitutional guarantee. there was no liability for a legislative act which was of general application. in the united kingdom there was only liability, at least in theory, where the government had abused its power towards an individual or class with the intention of causing damage, the tort of misfeasance in a public office. the european court held that the conditions required for the tort of misfeasance in a public office could not be transposed to a claim in damages for breach of european community law because their application would impede the effectiveness of european community law. liability was based on whether there was a grave and manifest breach of european law. what the court meant by grave and manifest is significant. the right of free movement clearly applies to people. the factortame companies had never moved anywhere: they were and always had been english £100 companies. the fishing vessels had not migrated either. what the british rules did was to prevent quota hopping. the area of doubt arose from the issue of how the united kingdom was expected to distribute a fishing quota, which was assigned by the european community to the united kingdom. if the spanish fishing fleet was entitled, by whatever device, to reflag as british vessels, there would clearly be rather a bizarre consequence. the united kingdom thought that the needs of the fishing policy could take precedence over nationality rules, which it believed in any event remained in state jurisdiction. even if it should have realized that it was infringing the right of establishment, if that is what it was, it could reasonably have considered that the assignment of a quota to a state was, by its nature, discriminatory. if this was wrong, it was a mistake made by all other sea fishing states. neither spain nor france, for that matter, had allowed foreigners to reflag as french or spanish ships and, indeed, in both of those countries there were still rules as to the nationality of crews! if a spanish trawler had sought to be reflagged as a french ship it would not have got over the threshold of liability. liability for loss has always been a difficult concept in both the civil law and in the common law: whether it should extend to lucrum cessans (expectation loss), or be confined to damnum emergens (reliance loss). damages, in the context of a failure to transpose a directive, might, at one extreme, represent the sum of money that would put the plaintiff, as nearly as possible, into the position he would have been in, if the state had carried out its obligation, in other words an 17 the denning law journal expectation liability: the court seemed to imply in francovich 47 that that was the true measure of damage in the community. that would presumably be the measure in dillenkofer. 48 in the marshall case, the damages which mrs. marshall had suffered by being dismissed, in breach of her right to equality, was loss of income. 49 on the other hand in cases such as factortame (no.3) 50 and british telecom 51 it seems that reliance loss would be appropriate. according to the court reparation had to be commensurate with the loss sustained. a state court could also invoke rules on mitigation of damage but damages could not totally exclude loss of profit. this rather delphic pronouncement is explained by saying that the court is merely laying down the minimum requirements for state remedies (tacit subsidiarity) . the court moves from a highly abstract level of principle to concrete determinations but as so often leaves out the crucial reasoning in the middle. at the level that we would look for the rule which is usable in subsequent cases, there is often nothing at all other than hints as to how the principle should be applied. for all these reasons the trawler companies tried to base their claim, not only on reliance loss and a very novel claim to exemplary or punitive damages based on the claim that the united kingdom's conduct had been abusive and unconstitutional. the advocate general seemed to think that such a claim might be a useful addition to the armoury and the european court said there was nothing against this being used. 52 the details of the claim were therefore thrown back to the national court to determine where it will, no doubt, be the subject of negotiation. in the famous marshall case, where a regional health authority was held liable to an employee, i think that the court took care not to give a ruling on the 47 supra.n.4. 48 supra.n.39. 49 marshal/v. southampton area health authority (no.2) (case c-271/91) [1993] e.c.r. 1-4367. so supra.n.7. 51 supra.n.42. 52 this is consistent with the normal approach of the court of approving any means that would ensure the ends of the treaty efficiently. 18 more law less orderliness nature of the claim to damages but on the legality of a statutory limit to a claim. s3 the decision that a statutory limit to a claim is incompatible with the obligations of an emanation of the state seems to me to be the same thing as giving rise to a european claim to damages. it suggests that a local authority that failed to comply with the terms of a directive could be liable in damages. the state's power to implement community directives does not derive from the treaties. from the union comes only the duty to pass binding legislation in implementation of a european directive. this must include the power to get it wrong for which it may be properly liable to the other member states and, if necessary, to judicial review for breach of the duty to pass binding legislation. by making it liable to its own subjects it changes the nature of the relationship to one of local government. however, even a local government should be liable to subjects only in very narrow circumstances. the commission recently gave the results of a report which it had commissioned. it announced with pleasure that many companies in england were blaming the european union for much regulation which was of united kingdom origin. this is precisely the confirmation that we needed of the dangers of the process, of the lack of any transparency of who is the master and who the servant. in every federation this is the central issue. the traditional values of federalism have been much discussed. the values of federalism, in the first place, are said to result from the benefits of competition between states to produce the best and most appropriate legislative structure. in the second place by splitting the range of powers between the general government and the state government there is said to be a greater defence against tyranny than would tend to be possible when a government was perforce remote from the governed. decision makers would be answerable to the people that they governed and therefore would be to some extent sensitive to public opinion. decision makers and enforcers would be sufficiently near to understand each others' problems. in the united states the values of federalism, as opposed to centralism, and therefore of state rights, as opposed to central government powers, are still a significant force, despite the enormous growth in congressional activity since the war. in 1992, in new york v. united states the supreme court had to deal with federal legislation that in many respects resembled what we call a directive. s4 the issue concerned in part the legal consequences of non33 supra.na9. l4 505 u.s. 144 (1992). 19 the denning law journal compliance with the main obligation under an act of congress which was intended to work in a similar way to a directive. three of the states in the united states had sites for the disposal of radioactive waste. there was political resentment that no efforts were being made to find sites in the other states given that they could not charge higher fees nor restrict imports of waste from other states, without federal approval, since they would thereby be burdening interstate commerce. a compromise was reached under the auspices of the national governors association. by the end of a seven year period, a state could refuse to accept nuclear waste from another state. in the meantime the three states were authorized to impose a progressively rising tax on the import of waste from other states until, at the expiry of the period, it could refuse to accept the waste altogether. the federal act which was adopted to give effect to the compromise provided that the tax was in part to go to the recipient state but also into an equalization fund to help states construct disposal sites. at the expiry of the transitional period the act contained a draconian measure to ensure that the states had complied: if they had not made appropriate arrangements, congress provided that title to all nuclear waste would automatically vest in the defaulting state. the state would be liable for all disposal costs and for any other liability! this was a powerful incentive indeed to ensure compliance with the federal legislation. the supreme court of the united states quashed the act on the ground that it sought to direct the state legislative process; not to treat the state government as a sovereign, independent body, but rather as a simple implement of federal legislation. in u.s. 19th. century language it commandeered the states. the u.s. model of a federation is one among many and in europe most think of the german model of a federation as the more appropriate prototype, but there has been no debate. in the german system the federal element most clearly emerges in the decision making process but for the rest is centralized. the principle of the german constitution, like that of the european union, is subsidiarity. legislation should be passed where it is most appropriate or efficient as opposed to the, at least on paper, functional division of the united states constitution. even in such traditional state matters as education and the regulation of professions there is federal legislation in germany. if nothing fundamental is done, at the level of principle rather than at the level of practice the court will itself continue the process of constitutionalisation: the court has what one of the advocate generals described as une certaine idee de 20 more law less orderliness / 'europe. 55 the lawyer has to share the image of a single market and of the relationship of common policies to that market propounded from time to time by the court. it encompasses very wide principles of interpretation, the principle of effectiveness above all, the importance of uniform application, the necessity for a state court to deduce rights from european community obligations imposed on states, principles which are hardly adequate or even desirable principles for a federation. that this vision is so at variance with both the vision and the customary thought processes of the elites in this country, is the primary reason why a relatively law-abiding country finds itself caricatured as a reactionary, insular and nationalistic one by some of those who appear to us to be riding roughshod over the rules of the treaty. this is because in the process of constitutionalisation, european law is only really significant at the level of principle and vision rather than at the level of practical application. this is why a member state can have a far worse record of compliance and yet be seen as a better european. the contribution that the court has made towards greater integration should not be trivialized. on the other hand its rapid developments of the law may have delayed a more rational, more acceptable federation which would have more readily presented a united voice to the outside world in which i have always believed. if all this was building a true sense of european identity then i suppose it might be tolerable. i see no evidence that that is so. pressure groups, consumer, environmental, trades union have been the net beneficiaries of the new centralism since it has given them a power that transcends the state but it is not likely to win over the hearts of the electorate. the court's single minded and impressive transformation of the directive from interstate instrument, compliance with which could be assured in the european court, into a source of paramount rules which could be litigated in state courts, may well have slowed down the european union construction and in particular isolated an important sector of opinion in this country. it may have contributed to the popular opposition in the united kingdom to the adoption of many important small measures on which, in the longer term, our sense of shared identity would have been based. before the intergovernmental conference the u.k. government flew a kite to see if there would be any support for a plan to kerb the powers of the court of justice of the european communities. 56 there was no support. 5s advocate general mancini in an extrajudicial speech. s6 as the french president giscard d'estaing had done a decade earlier. 21 tiie denning law journal the only way that could break out of this gridlock is to push for a more open, more plausible and, more federal, method of legislating if we are not to do even more damage to the rule of law. this was one of the other subjects on the agenda of the intergovernmental conference leading to the maastricht treaty, but is now adjourned sine die. the certain idea of europe has to be made more public and must receive proper consent. without a new constitutional settlement, a member state may well be blamed for something that is the work of the centre and the centre blamed for something that is the work of the state. that way leads to bewilderment, lack of accountability and more importantly the replacement of the rule of law with the rule of policy. that is no recipe for a stable future. the united kingdom needs to take the initiative. the debate on the constitution of the european union needs to be opened up. if not the member states will find themselves sucked ever more closely into a loveless centralized organization. in that organization, the united kingdom will be pitied, patronized and no doubt will play out that assigned role with conviction. the only way the united kingdom can change that dreadful destiny is either by getting out and thereby losing everything or by taking the lead in transforming the union into a properly constituted federation with an acceptable division of functions not dependent on a political doctrine of subsidiarity itself originally propounded by the most centralised organization in the world. 57 57 the vatican. the doctrine of subsidiarity originated in the pontifical encyclical quadragessima anno. 22 recklessness re-examined: in pursuit of the conscientious objective mitchell davies'*' two decisions of the house of lords delivered on 19 march 1981, rudely awakened the legal profession from a settled repose, alerting it to the publication of a new chapter on the definition of recklessness. this development was particularly unexpected as the debate had seemingly been closed by a series of decisions of the court of criminal appeal! which defined recklessness (in full accord with it being descriptive of a mental state) as requiring a subjective appreciation of risk by the defendant.2 the prevailing definition of recklessness had been that the accused must have foreseen the particular danger as possibly resulting from his act, but that despite this realisation he had nevertheless gone on to do the act.3 this relatively straightforward proposition was wrested away from english jurisprudence by the majority of the house of lords in r. v. caldwell.4 barely had the future course of recklessness been plotted when the objectivist approach received further endorsement from the house in r. v. lawrence.s at the helm in each case was lord diplock6 by whom a course was steered into a heavy trough of objectivity. it may be convenient at this point to repeat the definition of recklessness which issues from lord diplock's judgment in r. v. caldwell, with which lords keith and reid concurred. his lordship there stated: "in my opinion a person charged with an offence under section 1(1) criminal damage act 1971 is 'reckless as to whether any such property would be destroyed or damaged' if (1) he does an act which in fact creates an obvious risk that property will be destroyed or damaged and (2) when he does the act he either has not given any thought to the possibility of there being any such "of the school of law, university of buckingham. 1. r. v. briggs (note) [1977] 1 w.l.r. 605; r. v. daryl parker [1977] 1 w.l.r. 600; r. v. stephmson [1979] qb. 695. 2. the subjectivist approach had also been endorsed by the house of lords in the context of the civil law in herrington v. bre [1972] a.c. 877. 3. see, e.g., r. v. cunningham [1957] 2 qb. 396. 4. [1982] a.c. 341. 5. [1982] a.c. 510. 6. who, it should be noted, had been a member of the house of lords in herringtoll v. bre, supra n.2. 27 the denning law journal risk or has recognised that there was some risk involved and has nevertheless gone on to do it.,,7 it is to be observed that the two parts of the test equate with what for convenience may be described as the aaus reus and mens rea of the adjective 'reckless'. it may be noted at this point that lord diplock was adamant that wherever an offence employed the term 'reckless' it necessitated a consideration of the defendant's mental state.8 he also stressed that 'reckless' was an ordinary english word and it was its popular or dictionary meaning of "careless, regardless or heedless" which was to be ascribed to it. 9 this was considered to be the direct result of parliament jettisoning the awareness-based requirement of 'malice' (a central feature of the malicious damage act 1861) in favour of 'reckless' under the criminal damage act 1971. it is to be observed that the objective element of the above test the first part of the second limb is in direct conflict with the recommendations made by both the law commission in 197810 and the criminal law revision committee in 1980. i i the law commission has repeated its preferred definition of recklessness in the draft criminal code bill 1985 at clause 2212 where, in its determination, the objective limb from caldwell becomes 'heedlessness' as opposed to 'recklessness'. the most recent development has been the publication, in april 1989, by the law commission of a draft criminal codei3 based upon that produced in 1985 by a team of distinguished academic lawyers. 14 this new and comprehensive criminal code bill is the result of a detailed scrutiny of the 1985 code undertaken by practising lawyers who have comprised eight regional 'scrutiny groups' each under the chairmanship of a circuit judge. significantly, an entirely subjective definition of recklessness is employed thereunder.i5 this most recent proposal for reform is therefore the culmination of a detailed examination of 'recklessness' by both academic and practising lawyers and marks the clear confluence of opinion that parliament should intervene to reverse the perceived anathema created by the twin decisions of the house of lords. later in the day which had witnessed the majority decision in caldwell, a unanimous house of lords in r. v. lawrence was to endorse the earlier decision in the context of a charge of causing death by reckless driving. lord diplock again gave the leading judgment and re-iterated the test which he had expounded in caldwell, though the nature of the risk which the defendant must have created 7. [19821 a.c. 341, at p.354. 8. in deference to lord diplock's expressed intention 'recklessness' will be referred to, throughout this article, as a state of mind, although a contrary view is developed in the following pages. 9. [1982] a.c. 510, at p.525. 10. report on the mental element in crime: law commission no. 89. 11. 14th report, offences against the person: cmnd. 7844, para. ii. 12. law commission no. 143 (1985). 13. law commission no. 177 (1989). 14. which included professors e. griew and j. smith. 15. ibid., at clause 18. 28 recklessness re-examined. mysteriously became " ... an obvious and sen'ous risk... " (of causing physical injury).16 is the new test of 'recklessness' descriptive of a state of mind? it should be stressed at this point that despite lord diplock's substantial re-working of the legal definition of recklessness, he was insistent that it should be considered, nevertheless, as continuing to represent a state of mind. in lawrence the court of appeal had certified as a question of general public importance whether "mens rea [is] involved in the offence of driving recklessly?" lord diplock answered this question unequivocally in the affirmative.17 whilst many commentators remain unconvinced, there exists an abundance of diaa from both house of lords' decisions leaving one in no doubt as to lord diplock's intentions. in caldwell his lordship drew a distinction between 'recklessness' and 'maliciousness' and made the observation18 that although the latter term imports actual appreciation of risk on the part of the accused: "neither state of mind seems to me to be less blameworthy than the other ... " furthermore, in lawrence his lordship compared the offences of careless and reckless driving as contained within the road traffic act 1972 as amended by the criminal law act 1977. he concluded 19 that the former does not necessarily involve any moral turptitude; the heavy inference therefore is that the latter does. upon closer scrutiny it may be considered that there is some force in the view that the new test of recklessness fails to represent a test of mens rea, which conventionally has demanded an examination of the accused's mental faculties, with the objective of ascertaining the existence or no of a directing mind, conscious of the prohibited act which the body was engaged in. returning to his lordship's judgment in caldwell, the test was clearly presented as one which maintained a requirement of mens rea, but a closer scrutiny reveals that it has more than a veneer of a test, which at its broadest, may simply amount to an assessment of the defendant's conduct, regardless of his mental state.20 the relevant passage commences with lord diplock asserting21 that the concept of mens rea requires a consideration of what the accused himself actually appreciated, and accordingly: . " ... it cannot be the mental state of some non-existent, hypothetical person." this was, however, only by way of prelude to a mandate expressed in the following paragraph to disregard entirely the mental processes of the accused, by measuring his conduct against the universal 'norm' of the reasonable man. his lordship thus continued: "nevertheless to decide whether someone has been 16. [1982] a.c. 510, at p.526. 17. ibid., at p.527. 18. [1982] a.c. 341, at p.352. 19. [1982] a.c. 510, at pp.524-525. 20. indeed, lord diplock appears to confirm this in lawrence when he states (ibid., at p.525) that recklessness" ... refers not only to the state of mind of the doer of the act when he decides to do it but also qualifies the marmer in which the act itself is performed." 29 the denning law journal reckless . . . does call for some consideration of how the mind of the ordinary prudent individual would have reacted in a similar situation." the role of the obdurate reasonable man was promoted later in the day in lawrence where his lordship observed: "one does not speak of a person acting 'recklessly' even though he has given no thought at all to the consequences of his act, unless the act is one that presents a real risk of harmful consequences which anyone acting with reasonable prudence would recognise and give heed to.,,22 it has already been observed that lord diplock undoubtedly intended that 'recklessness' should continue to be perceived as a term going to mens rea, but as the above dicta illustrate it is enough if the risk is evident to a reasonable man and this accordingly obviates the need to explore the mind of the accused at all. despite his lordship's assertions, with great respect, and in the language of lord templeman uttered in another place,23one may well term a five pronged digging instrument a spade but this fails to render it any less obvious what in fact it is. one needs to look no further than lord diplock's assimilation of reckless conduct with that which is "careless, regardless or heedless"24 for a powerful indication of the exact nature of the judicial tool manufactured in caldwell. it is significant that lord hailsham, in lawrence, whilst expressing total agreement with lord diplock, reached the opposite conclusion on this point. he stated that 'recklessness' has consistently been construed as: " ... a state of mind stopping short of deliberate intention, and going beyond mere inadvertence, or in its modern though not its etymological and original sense, mere carelessness.,,25 furthermore, referring to the defendant's claim that he was driving his motor-cycle at between 30-40 m.p.h. lord hailsham stated that since the area was 'built up' this conduct was "possibly careless, but most improbably reckless".26 it is indeed regrettable that this fundamental conflict, which lays bare a significant divergence in the two law lords' perceptions of how 'recklessness' should be defined, apparently eluded the lord chancellor as he then was. certain of the post-caldwell/lawrence (hereafter referred to as 'caldwelf) authorities are ripe to be prayed in aid to challenge the view of certain commentators who maintain that 'recklessness' does necessarily continue to represent a state of mind. chief amongst these is elliott v. cp which, it is contended, is, both in terms of its result and the manifest disenchantment of the 21. [1982] a.c. 341, at p.354. 22. [1982] a.c. 510, at p.525. 23. street v. mouiliford [1985] 2 all e.r. 289, at p.294. 24. [1982] a.c. 510, at p.525. 25. ibid., at p.520. 26. ibid., at p.519. 27. [1983] 1 w.l.r. 939. 30 recklessness re-examined divisional court with the caldwell test, compelling evidence that 'recklessness' no longer necessarily imports a requirement of mens rea, as previously understood. elliott concerned a fourteen year old girl who attended a remedial school and was undoubtedly of limited intellect. whilst seeking sanctuary one night in a garden shed she had inadvertently burnt it down, after having used the contents of a bottle of white spirit to start a fire in order to keep warm. she was charged under s.l (1) criminal damage act 1971 with intentionally or recklessly28damaging the property of another. the justices had construed caldwell as requiring the risk in question to be obvious to the individual concerned. accordingly, account was taken of her limited intelligence and fatigue, which manifested itself in her claim, credible in the circumstances, that she was unaware that white spirit was highly flammable. on appeal to the high court the 'decision was reversed, with it being stressed that caldwell required the question of whether a risk was 'obvious' to be answered by an application of the reasonable man test, it being irrelevant that the risk was far from obvious to the defendant herself. the defendant's conviction was reached, however, with great reluctance and not without robert goff lj alluding to what he plainly regarded as being the perverse consequences of an application of lord diplock's principles to the facts.29 drawing upon goff lj's clear reluctance to convict the accused, it is arguable that if death had resulted, with the charge being one of reckless conduct manslaughter, the objections against conviction, based on her lack of mens rea, would have become compelling.3o with respect, the author echoes the sentiments of goff lj in the above case. whilst the decision was wholly unjust, the directions of lord diplock reproduced above clearly contemplate the conviction of such an individual. there had been the creation of an obvious and serious risk of harm and evidence of this state of affairs was quite enough to convict the accused without the need to investigate her mental processes. in his lordship's words, she was simply an individual who had "not given any thought to the possibility of there being any risk". into the same category as elliott falls r. v. belpl which serves as a further example that requirements of mens rea may be dispensed with under caldwell with the consequential perpetuation of inequity. in bell, the accused, having wreaked havoc through the streets of bridlington by driving his car indiscriminately into the vehicles of other road users, was charged 28. and "without lawful excuse"; 5.1(1). 29. cj, mitchell (1988) 52 (3)jo. ofcrim. law 300. though if the author's views there are correct in stating that the reasonable man should be endowed with the permanent characteristics of the accused, as in the defence of provocation (d.p.p. v. camplin [1978] a.c. 705), it may be questioned why the appeal committee of the house of lords in both elliott v. c. and stephen malcolm v. r. (infra p32 in text) roundly refused leave to appeal. 30. though the judge will, upon conviction for manslaughter, have complete sentencing discretion. this may be ofiittle comfort to the defendant, however, as there is little uniformity between the judges as to what constitutes a blameworthy state of mind; taking elliott, lord diplock would seemingly have viewed her as blameworthy; lord hailsham may not have; and goff and ackner ljj would not have. 31. [1984] 3 all e.r. 842. 31 http://www.ingentaconnect.com/content/external-references?article=0022-0183(1988)52:3l.300[aid=7380610] the denning law journal with driving recklessly contrary to the road traffic act 1972. at the time of these incidents the defendant claimed that he believed the other vehicles contained evil spirits and that he was motivated into committing the acts of destruction by the voice of god. the defendant's further contention was that, consumed by this outside force, he gave no thought to the risks associated with his actions. at first instance he was convicted of the offence. robert goff lj again delivered the judgment, this time of the court of appeal, concluding that the conviction must stand: even if the jury believed the defendant's contention, he (as in elliott) had created an obvious and serious risk of harm in circumstances where no thought had been given to the possibility of any risk, and was accordingly within the caldwell definition of recklessness. the reservations expressed in elliott regarding the diplock direction on recklessness were cited with approval by ackner lj whilst giving the judgment of the court of appeal in stephen malcolm v. r.32 his lordship, whilst aligning himself totally with the dicta of goff lj, nevertheless rejected the contention of counsel before him that the reasonable man should be endowed with certain characteristics of the accused such as his age and intelligence. in so doing, however, ackner lj was clearly much fortified in his conclusion, albeit one which was strictly superfluous to the result, that a boy of the appellant's age would inevitably have recognised the risks inherent in the appellant's conduct. if the appellant before ackner lj had, for example, been of retarded intellectual ability causing him to be unable to appreciate the risks associated with his conduct, his lordship would, like goff lj in elliott, only have affirmed the conviction, being constrained by authority to do so. it seems that the objection shared by ackner and robert goff ljj was the spectre of convicting the defendant with so serious an offence, in the absence of there being any true evidence of mens rea. as observed by counsel for the appellant in stephen malcolm v. r. a prohibition (which it is here submitted is implicit in the caldwell test)33 from considering the particular characteristics of the defendant would seem to be a potential source of extreme confusion to jury members. take, for example, a case such as r. v. church34, where both murder and manslaughter are charged. if as in church the defence of provocation is raised, the jury will be directed, in accordance with d.p.p. v. camplin,35 that they must take account of such of the defendant's individual and p.ermanent characteristics which have had the effect of making the victim's remarks or conduct particularly provocative to him (the defendant). however, if provocation is not established, but instead it is found by the jury that the defendant lacks the necessary mens rea for murder, they may then be required to consider whether involuntary manslaughter is established. in directing the jury in relation to manslaughter by reckless conduct the judge will be placed in the 32. (1984) 79 car. 334. 33. see my comment, supra, at n.29. 34. [1965] 2 all e.r. 72. 35. (1978) 67 car. 1. 32 recklessness re-examined invidious position of now having to inform the jury that the issue of whether the defendant was reckless must be considered without referenceto any of his personal characteristics. it is submitted that the foregoing analysis illustrates unequivocally that in the majority of cases 'recklessness' may be established merely from the actus reus, for example, of creating an obvious and serious risk of property damage. in such a case, lord oiplock's instruction is that a jury may infer the necessary state of mind.36 furthermore, an examination of the directing mind will generally be superfluous, for both the first defendant who appreciates such a risk has been created, and the second defendant who does not, are equally 'reckless' in the language of caldwell. in contrast to what has already been stated, however, there may be a residual class of case where a true consideration of the defendant's mind is required. it is here submitted that only to this extent does the diplock direction preserve the requirement of mens rea. it is to this exceptional class of case that attention will now be directed. the so-called 'lacuna' from caldwellthe third mental state returning once more to the direction in lawrence, lord oiplock stated37 that if the jury were satisfied that an obvious and serious risk had been created by the defendant, they were: " ... entitled to infer that he was in one or other of the states of mind required to constitute the offence and will probably do so; but regard must be given to any explanation he gives as to his state of mind which may displace the inference," (author's emphasis). as the above direction is crucial in delineating the boundaries of the new test of recklessness, its importance cannot be overstated. it is quite clear, to use lord diplock's terminology, that there exist only two 'mental states', and further, that having established the actus reus (obvious and serious risk of harm) the jury may generally infer that the defendant falls into 'one or other of the' two applicable states of mind. however, his lordship then issued the imperative caveat that regard must be given to any explanation which may illustrate that the defendant is not within either of the states of mind. the inevitable corollary, therefore, is that if the defendant adduces evidence to show he does not fall within either of the mental states he cannot be termed 'reckless'. the lacuna to caldwell recklessness was thus born. it is urged that lacuna must not be interpreted as 'loop-hole', the latter term being suggestive of an oversight or unintended omission. it is contended, rather, that the existence of the lacuna is central to lord diplock's repeated assertion that 'recklessness' continues to represent a state of mind.38 the argument has been forcefully put by professor j. c. smith: 36. [1982] a.c. 510, at p.527. 37. ibid .. 38. for a different view, see birch, "the foresight saga: the biggest mistake of all" [1988] grim l.r. 4. 33 the denning law journal "it has been questioned whether lord diplock intended to leave this 'lacuna'. it is submitted that he must have done. he was insistent that recklessness was a state of mind of the defendant. without the lacuna that view is untenable. [otherwise] if there was an obvious and ... serious risk the defendant would then be liable whatever he thought; so there would be no need to inquire."39 returning to bell, it was there argued that an explanation existed within the diplock caveat to displace the inference of recklessness. however, if those facts are recalled all the defendant was explaining was why he failed to consider the risk of harm the voice of god argument. this, however, in no way rebutted the inference that he was within one of lord diplock's 'mental states'. it simply amounted to a confirmation that he fell within the caldwell test. the reason why he was within it, as in elliott, was irrelevant. accordingly, in order that the 'explanation' be effective to prevent the defendant being adjudged reckless, its effect must have been that the defendant fell neither into the class of defendants which had failed to give thought to the risk, nor that class which had considered the risk yet gone on nevertheless to take it. with this in mind, it is lamentable that the claim mooted in bell that "he recognised that there was a risk, but felt that he was able to cope with it because he was driven on by god",4{)was apparently not pursued. it is contended that if this belief in god's intervention led the defendant actually to believe that there was no risk, or none more than negligible, the defendant's explanation has removed him from either of lord diplock's required mental states, and he cannot be' regarded as 'reckless'. on this assumption the defendant is neither someone who has failed to recognise the risk, nor is he someone who has recognised the risk and gone on regardless. he only continued because he believed god would intervene to prevent any harm ensuing.41 when it is borne in mind that not only must the defendant subjectively hold the belief that no, or only a negligible, risk exists, but in addition he must convince the jury that this belief was actually held, it is perhaps unsurprising that this claim was not pursued in bell. a far more likely candidate to come within the lacuna to caldwell, it is submitted, is the defendant whose explanation, which is relied upon to show that he was not within either of lord diplock's 'mental states', illustrates an awareness of the risk, coupled with a certain determination and conscientiousness to avoid it. in accordance with lord diplock's direction expressed above, it would seem that the defendant who has displayed reasonable assiduity in satisfyinghimself that 39, [1986j crim l.r. 406, at p.408. 40. [1984j 3 all e.r. 842, at p.844. 41. a possible lacuna case is r. v. crossman [1986] c.l.r. 406. here the defendant was convicted of causing death by dangerous driving after the load on his lorry had fallen off killing a pedestrian. when he had earlier been warned of the danger of the load toppling from the lorry, the defendant had replied that it was as "safe as houses".lfhe had considered the risk and decided there was none before making this reply, it is contended he could not be considered caldwell reckless. this point was seemingly not explored since he changed his plea to guilty. 34 recklessness re-examined no, or merely a negligible, risk exists before proceeding to do the act in question, falls outside both of lord diplock's 'states of mind' and accordingly could not be termed 'caldwell reckless'. the limitations of the lacuna must, however, be stressed. a heavy onus rests upon the defendant to establish, to the jury's satisfaction, that he believed he had succeeded in reducing the risk to at least negligible proportions. if it is shown that any residual risk, being more than negligible, was known by the defendant to accompany his conduct, the presence of such a degree of risk brings the defendant firmly within caldwell principles, i.e. to that extent the defendant has recognised the existence of risk and gone on nonetheless to take it. with the aforementioned caveat in mind there is no dearth of distinguished academic opinion testifyingto the existence of the lacuna. professor griew, in his valuable article, "reckless damage and reckless driving: livingwith caldwell and lawrence",42 has concluded that the defendant who is aware of the risk and accordingly takes precautions (which in the event are inadequate), intending to eliminate, or reduce the risk to negligible proportions, does not fall within the caldwell definition of recklessness. such a person falls outside both the class of person which has given no thought to the risk and that class which has recognised the risk but proceeded nevertheless to take it. the postulant has given thought to the obvious risk, and his decision to continue the activity has only been reached after he has (mistakenly) satisfied himself that no, or only a negligible, risk remains. the lacuna is also envisaged by the authors of smith and hogan who observe43that once an obvious risk is proved, "he [the defendant] can escape only if he considered the matter and decided that there was no risk, or a 'negligible' risk." in griew's article (supra) a second mental state is identified which he also considers to fall outside the ambit of caldwell recklessness.44the example given in support of this contention is that of the defendant who considers the risk and concludes mistakenly that there is no risk, or only one which would be considered negligible. he had addressed the trivial risk but missed the obvious and substantial one. in relation to this second of professor griew's scenarios it is contended, with respect, that this is a non sequitur in terms of lord diplock's definition. where an obvious and serious risk of harm materialises, as a result of the defendant's conduct, awareness of an associated risk of minimal proportions is irrelevant. in the language of lord diplock, the defendant is someone "who has not given any thought to the possibility of there being any such risk", and is accordingly reckless. by prefacing the noun "risk" with the qualification of "such", lord diplock must have been referring to the obvious and serious risk which has in fact achieved fruition. 42. [1981] crim. l.r. 743. 43. textbook of criminal law 6th ed., at p.65. 44. [1981] crim. l.r. 743, at pp.748-749. 35 the denning law journal furthermore, if professor griew's contention be correct it could produce results bizarre in the extreme. take the following example. two defendants, acting independently, but whose conduct is identical, bring about obvious and serious risks of harm, materialising in the form of injury to pi and p2. the risk of harm for which 01 is responsible is accompanied by a trivial risk of harm which 01 considers and dismisses. according to professor griew the fact that 01 has recognised the trivial risk and considered that its incidence is insufficient to affect his course of conduct, will operate to remove 01 from either of the mental states in caldwell. assuming that 02 failed to address his mind to the possibility of any risk of harm materialising, he will, however, be considered reckless. it is clearly undesirable that the concept of recklessness, instrumental in so many offences, should be susceptible to such a fortuitous circumstance. it is submitted that lord oiplock's instruction, properly construed, would ensure the uniform treatment of both 01 and 02; neither had considered the possibility of the actual, obvious and serious risk materialising, and assuming the risk to be also unjustified both defendants will be adjudged reckless. by way of amplification, the following example, inspired by the law of tort, may be usefu1.45 the defendant is responsible for transporting animals by sea. in accordance with legislation he is liable (inter alia) if through his recklessness any loss of life to the animals occurs. as a consequence of a decision to place the animals on the deck of the ship unpenned, an obvious and serious risk of loss of life is caused due to the danger of their being washed overboard. is the defendant to be exempted from liability under the legislation, when all the animals are washed overboard and killed, because the risk which he had recognised and averted was the risk of the animals communicating contagious diseases to each other? he had addressed his mind to this risk and had satisfied himself that it was at most negligible because all the animals had been vaccinated. according to griew, the answer seemingly is in the affirmative. the former of griew's examples however does, it is contended, present a state of mind which is not reckless in the caldwell sense. as has been previously observed, it would appear that the conscientious defendant who, to the jury's satisfaction, genuinely believed that he had successfully eliminated the risk, or reduced it to negligible proportions, cannot be termed reckless. in the language of lord oiplock, the explanation by the defendant as to his state of mind, comprising the evidence of his conscientiousness, displaces any inference of recklessness, for he no longer falls within "one or other of the states of mind required to constitute the offence". the recent decision of chief constable of avon c5 somerset police v. shimmen 46 would appear however, prima facie to deny the existence of the lacuna. the facts of the case, as with caldwell, concerned a prosecution under the criminal damage 45. gorris v. scott (1874) l.r. 9 ex. 125. 46. (1987) 84 c.a.r. 7 36 recklessness re-examined act 1971. this had arisen when the defendant, in a state of some inebriation,47 had attempted to demonstrate to his friends his prowess in the korean art of self-defence, but had succeeded only in demolishing a plate glass shop window. he had aimed a kick at the window intending to stop just short of making contact with the glass. unfortunately, his belief in his faculties of control was, much like his kick, misplaced. shimmen is the only reported case where the defendant has contended that he falls beyond the caldwell formulation by reason of his own belief, held at the time, that his special skills would reduce the incidence of risk. it was therefore contended that the defendant was neither someone who had given no thought to the risk; nor was he someone who had considered the risk and continued regardless. nevertheless, it was determined by a divisional court that the accused was guilty of the offence charged, the ingredient of recklessness having been made out. the decision fuelled much academic disquiet amongst the subjectivists. caldwell was viewed as having been heretically extended at a time when the academic debate had hitherto been uniform in attempting to 'contain' caldwell by focusing upon the lacuna. before the justices however the defendant had been successful in his contention that he had not acted recklessly. it was decided that his efforts to avoid any damage by aiming a controlled kick, coupled with his own belief in his skills and experience, prevented him from falling under either of the mental states described by lord diploc~ in caldwell. as has been observed, however, on appeal to the divisional court it was determined that shimmen fell firmly within the diplock definition of recklessness. viewed at its most general level, the decision of the divisional court would seem to work an unwelcome extension of caldwell. as the defendant had clearly considered the risk of damage to the window, the only question was whether he had then proceeded nevertheless to take it. taylor j delivered the judgment of the divisional court, with which watkins lj concurred. the learned judge referred to professor griew's analysis of caldwell and lawrence and found himself in concert with griew's assertion that the defendant who having recognised and averted a trivial risk is not reckless when the obvious and serious risk achieves fruition. taylor j disagreed, however, with griew's other contention that the defendant who has considered the risk but has then taken precautions which he believes to be effective in eliminating it, is not caldwell reckless. he concluded: 47. it was settled by the house of lords in d.p.p. v. majewski [1977] a.c. 443 that intoxication is no defence to an offence which could be committed recklessly/maliciously. this principle has survived the general separation of the two types of mens rea achieved in caldwell: see, e.g., the dissenting judgment of lord edmund davies in caldwell. 37 the denning law journal "he [professor griew's defendant] seeks to rely upon the fact that he did take precautions which were intended, and by him expected, to eliminate the risk. he was wrong, but the fact that he was conscientious to the degree of trying to minimize the risk does not mean that he falls outside the second limb of lord diplock's test.,,48 the learned judge concluded that, "applying those principles to the present case" the appeal should succeed, with the defendant falling within the caldwell definition of recklessness. it would appear, therefore, that taylor j considered the defendant before him to be indistinguishable from the hypothetical postulant of professor griew. however with respect, that, quite plainly, is not the case. the key to professor griew's exception lies in the defendant's belief that he had, by taking precautions, eliminated the risk (or at least reduced it to negligible proportions). as the passage reproduced from shimmen above shows, taylor j refers first to professor griew's postulant as having the belief that he has eliminated the risk, and in the next sentence this belief is reduced to having simply minimized the risk. this clearly shows that taylor j had not been made aware of the significance attached to the distinction, and it would appear that the judge understood professor griew's example to refer to a defendant who believed the risk had merely been reduced. furthermore, the evidence in shimmen itself, as emphasised by the judge, was that the defendant believed his expertise in martial arts would reduce, rather than eliminate, the likelihood of the risk materialising. having re-iterated the findings of fact of the justices, taylor j observed: " ... [the] defendant did perceive that there could be a risk, but by aiming off rather more than he normally would he thought he had minimized it ... ,,49 it is important to note at this stage that in order to observe fidelity to caldwell principles, taylor j must have been speaking in terms of residual risk, arid it was a recognition of this by shimmen which brought him within the diplock test. it has already been observed that the defendant who recognises that, even after account is taken of his special skills, a residual and real risk remains, will fall within the diplock test; he is simply an individual who has recognised that some risk attends his act, but who has proceeded nevertheless to take it. such an analysis leads to the conclusion that whilst shimmen's own evidence, which revealed an awareness of a residual degree of risk, condemned him to being adjudged reckless, professor griew's postulant would still appear to be beyond the clutches of caldwell. the logic behind such an assertion rests upon the fact that the latter's belief that the risk has been eliminated brings about the absence of any perceived residual risk, the presence of which is crucial in cases such as shimmen, being the catalyst which activates the diplock formula. it is apparent from the above discussion that the ratio in shimmen is entirely 48. (1987) 84 c.a.r. 7, at p.ll. 49. ibid., at p.12. 38 recklessness re-examined consistent with lord diplock's pronouncements in caldwell. soany anxiety that the decision of the divisional court may mark an extension of caldwell is due, not to the decision itself, but rather to various confused obiter statements uttered by taylor j. if, as the learned judge contended, professor griew's postulant remains within the caldwell formulation, there could be no state of mind which, accompanying the creation of an obvious and serious risk, is not reckless. this is of course totally to disregard lord diplock's direction that regard must be given to any t;xplanation offered by the defendant as to his state of mind. provided the explanation which the defendant adverts to is sufficient to exclude him from the two states of mind referred to in caldwell, he has succeeded unequivocally in exculpating himself. it has already been contended that professor griew's postulant does fall within the exception because he has considered the relevant (obvious) risk and has adopted means, sufficient in his mind, to avoid it. it is thus the diplock direction to undertake this examination of the defendant's mind, as opposed to that of a reasonable man, which makes credible his lordship's frequent assertion that the test continues to embrace mens rea. it is regrettable that the cruciality of the lacuna was not brought to the attention of the learned judge in shimmen with the inevitable result that the clarity of his judgment was marred. however the obiter dicta of a divisional court, which are apparently in conflict with two house of lords' authorities, should not cause undue concern, provided these utterances are recognised as being divorced from the ratio of the lower court's decision. the better view may be that the cruciality of the concept of known residual risk, lacking in griew's first postulant above, eluded taylor j, though to remain in harmony with caldwell his decision depended upon it. it is contended therefore that shimmen would only represent an extension of caldwell if the defendant had been adjudged reckless notwithstanding his plea, accepted by the jury, that he believed all risk (being more than negligible) of damage to the window had been eliminated. an alternative explanation for the judge's assimilation of the defendant who is conscientious in his attempts (believed by him to be successful) to eliminate the risk, with the accused in shimmen, is derived from the following enigmatic observation of the judge: "lord diplock's second limb is simply whether or not the defendant has recognised that there was some risk."si on the basis of what i will call abstract risk, taylor j may be understood as concluding that a defendant is reckless if he is aware of the risk which would, in the absence of precautions, attend his act; recklessness is here being derived from an awareness of risk in general terms. evidence that taylor j considered the existence of abstract risk to be important, is to be found earlier in the same paragraph of his judgment where he seems to conclude that professor griew's first postulant (above) was necessarily reckless because: "he was aware of the kind of 50. cf birch, supra n. 38. 51. (1987) 84 c.a.r. 7, at p.ll. 39 the denning law journal risk which would attend his act if he did not take adequate precautions." this observation is particularly objectionable because such an enquiry is clearly not relevant in assessing the defendant's mental state existing at the time of the relevant act. to pose the question as to what degree of risk the defendant appreciated might exist in the hands of someone who lacked his particular skills, or who failed to take the precautions which the defendant takes, is once again to ignore lord diplock's assertion that mens rea must be the prelude to a finding of recklessness. the crucial question to ask is whether the accused recognised, when doing the act, that despite the precautions taken some residual degree of risk remained. to repeat lord diplock's instruction from lawrence: " ... regard must be given to any explanation he gives as to his state of mind which may displace the inference [of recklessness]." it has been contended that the ratio of shimmen is entirely consistent with lord diplock's direction repeated above. notwithstanding his obiter dicta, the judge reaches the conclusion that shimmen was reckless because he appreciated some risk of harm existed when aiming the kick. this is borne out by taylor ]'s close scrutiny of the evidence in order to determine if there was a sufficient indication of assiduity on the part of shimmen to rebut the inference of recklessness. to this end the evidence that the accused thought that he had" ... eliminated as much risk as possible by missing by two inches instead of two millimetres" was recognised by the judge to be crucial. this led taylor j to the conclusion that:s2 "it was not a case of his considering the possibility and coming to the conclusion that there was no risk."s3 implicit in the above is that if shimmen had indeed come to the conclusion that there was no risk, or only a negligible one, and this was accepted by the jury, then there would have been no finding of recklessness. acceptance of this proposition indicates that the presence of abstract risk was recognised ultimately by the judge as being irrelevant. as has been observed, to look only at the defendant's perception of risk in general terms for example, how shimmen would view the conduct of a non-expert attempting the same feat would be in total disregard of lord diplock's caveat to heed any evidence of contextual significance. it seems with respect that the judge's delphic reference to what i have termed abstract risk was the source of his confusion. if such obiter remarks are divorced from the ratio of the case we are left with only one further dilemma: why did the judge equate shimmen's position with that of professor griew's second postulant (supra)? the preferred solution, borne out by his judgment,48 is that the judge failed to appreciate the crucial distinction between the defendant who positively concludes that there is no risk in his circumstances, and the defendant who, like shimmen, simply believes his abilities lengthen the odds ~.fthe risk materialising. the 52. ibid., at p.12. 53. this would appear to be entirely inconsistent with the judge's earlier reasoning which is referred to in the text (supra p.39) as the 'abstract risk' condition. 40 recklessness re-examined consequence of this error was the judge's assimilation of shimmen with professor griew's postulant. it is untenable that the latter should be considered reckless on the basis of the principles laid down by the house of lords. as has been stressed already, according to the judgment of lord diplock in both caldwell and lawrence, 'recklessness' still imports a state of mind as conventionally understood. indeed birch has argued54that his lordship was obliged to make this assertion in order to ensure that his definition of recklessness remained distinct from negligence which rather than being concerned with mens rea looks simply to the 'dangerousness' of the defendant's conduct. this distinction is guaranteed by the reservation to the defendant, who is alleged to have been reckless, of the right to proffer an explanation which may have the effect of removing him from either of the two mental states sufficient to indicate recklessness. the distinction between the new test of recklessness and negligence is, as has already been noted, adverted to plainly by lord hailsham in lawrence,55 who directly contrasts recklessness with "mere inadvertence" or "mere carelessness". the practical consequences of this distinction are explored below in the context of involuntary manslaughter. it must be stressed that the existence of the lacuna is unlikely to facilitate an escape from caldwell in many cases. as has been observed, the third mental state is drawn very narrowly: the defendant must not have been aware, in doing the act, of any risk attaching to his conduct, except that which is merely negligible. what amounts to 'negligible' will depend upon all the circumstances, but it is submitted that in the vast preponderance of cases, shimmen being one, it will in practice equate with a perception that no risk remains. this is because where, as in shimmen, the conduct of the accused presents an unjustifiable risk of damage to the property of another, there can exist no risk which is negligible in the sense that the taking of it can be condoned. it will be observed that whilst in shimmen it was acknowledged that the accused believed he had succeeded in substantially reducing the risk, it was not contended that the level of risk remaining was so slight as to be negligible. furthermore, although the issue of whether the defendant actually considered that he had eliminated all risk is necessarily a subjective question, as with any other subjective test,56the more unreasonable the defendant's contention, the less likely the jury are to accept that it was actually held.57to assist juries in assessing the credibility of the defendant's assertion in those rare cases where he claims to have believed all serious risk to have been entirely eliminated, professor williams has suggested58 that judges should direct juries to consider whether the defendant 54. [1988] grim. l.r. 4, at p.5. 55. [1982] a.c. 510, at p.520. 56. e.g.. , the subjective limb of the 'ghosh test' of dishonesty within the law of theft: r. v. ghosh [1982j qb.1035. 57. gf bell, supra p.31 in text. it is for this reason that the implication of birch [1988] gn·m. l.r. 4, at p.5, that a defendant who unreasonably satisfies himself that no risk exists would necessarily avoid a conclusion of recklessness, cannot be supported. 58. (1988) 8 legal studies 1,74, at p.77. 41 the denning law journal would have subjected his wife/girl-friend or baby to similar treatment. if the answer is 'no' then an element of risk has necessarily been perceived. 59 if such a test were to be adopted by judges it is not difficult to predict the likely response of the jury in a case such as shimmen if such a claim were to be attempted. it is respectfully submitted that the strictness of such a test is merited in that it properly resolves any doubt in favour of the victim. the practical implications of caldwell with particular reference to the lacuna: recklessness and involuntary manslaughter it is rarely that the house of lords is visited twice in one day for the purposes of a definitive exegesis of but a single principle of law. that such occurred in the context of the definition of recklessness is testimony to the significance of the term. the reason behind the concept's importance may be shortly stated as being its virtual omnipresence throughout the criminal law, as an alternative to direct intention. indeed both the judiciary and the legislature have favoured the inclusion of this element of mens rea in a wide range of offences wherever it has been thought expedient to incorporate some degree of moral turptitude into a crime. such offences include the three offences of causing criminal damage under the criminal damage act 1971; reckless driving under the road traffic act 1972 and the criminal law act 1977; offences of deception under the 1968 and 1978 theft acts;60 and the common law offence of reckless conduct manslaughter. before proceeding, two notable examples of offences to which the caldwell definition does not apply should be examined. the first exception was formulated specifically by lord diplock himself, this being the offences against the person act 1861. this act is primarily of importance today in regard to its provisions which relate to the infliction or causing of non-fatal bodily injury.6i the stipulated mens rea for these offences includes that of 'malice'. in formulating the definition of recklessness in caldwell, lord diplock directly drew a contrast with the term 'malice' which he concluded was a term of art importing recklessness only in the sense of awareness.62 the second important exception, and one which does not owe its genesis to the diplqck definition, is the offence of rape, which in accordance with section 1, sexual offences (amendment) act 1976 may be committed recklessly. the 59. it should be noted that the caldwe/j test will never be relevant where the offence relates to a non-fatal personal injury. in such circumstances the offences against the person act 1861 will apply, which adopts the(subjective) concept of maliciousness rather than recklessness, a distinction emphasised by lord diplock in caldwe/j. 60. which may be committed intentionally or recklessly: e.g., s.15(4), theft act 1968. some commentators have asserted that due to the requirement of dishonesty, the caldwell definition cannot apply. however, if. m.p.c. v. charles [1977] a.c. 177. 61. specifically, 55.47, 18 and 20. 62. [1982] a.c. 341, at p.351. for an application of the subjective test see: w (a minor) v. dolbt;)! [1983] crim. l.r. 681; r. v. grimshaw [1984] c.l.r. 108; r. v. morrison [1989] c.a.r. 17; and r. v. fa"elj [1989] crim. l.r. 376. 42 recklessness re-examined immunity of this offence from caldwell recklessness was developed obliquely by lord lane cj in the leading case of r. v. pigg.63 the learned judge purported to apply lord oiplock's direction, mutatis mutandis, to the offence of rape, but in the process introduced a gloss64 upon the test of recklessness by equating it with 'indifference'. this latter term had consistendy been used by the courts as an alternative to mere inadvertence,65 with it requiring awareness, even if only in a constructive sense; i.e. the defendant would have subjectively appreciated the risk if he had stopped to think (cf. elliott).66 the tacit departure from caldwell in pigg became express in the subsequent decision of the court of appeal in r. v. satnam s, kewal s67 where bristow], distinguishing caldwell,68 declared69 that in the context of rape the definition of recklessness should be arrived at: " ... without regard to r. v. caldwell or r. v. lawrence which were concerned with recklessness in a different context and under a different statute.,,70 it is submitted that the latter decision was decided per incuriam with the important house of lords decision in r. v. seymour71 not being brought to the attention of the court. whilst lord roskill, in delivering the judgment of the house, expressed his support for "all the reasoning" behind lord lane's judgment in pigg,72 it seems clear that lord roskill construed it as being simply an application of caldwell. this is unsurprising as the indifference test had been carefully marinated in the language of caldwell before being served up for subsequent judicial consumption. it is clear from the following passage73 of lord roskill's judgment that he endorsed the decision of the court of appeal in pigg because of its apparent fidelity to caldwell. there was, stated his lordship, a " ... need to prescribe a simple and single meaning of the adjective 'reckless' and the adverb 'recklessly' throughout the criminal law unless parliament has otherwise ordained in a 63. [1982] 2 all e.r. 591. 64. as recognised by robert goff lj in elliott [1983] 1 w.l.r. 939, at p.950. 65. see, e.g., the decision of the court of appeal in r. v. stone alld dobinson [1977] 1 qb. 354, a case concerning a charge of reckless manslaughter by neglect. a post-caldwell illustration of subjective recklessness within a manslaughter by neglect case, is provided by r. v. west londol1 coroner [1987] 2 w.l.r. 1020, where again use was made of the 'indifference' test to achieve this result. 66. a useful example of constructive awareness is provided by the pre-caldwell decision of r. v. parker [1977] w.l.r. 600. it should be noted, by comparison, that nothing short of actual awareness will suffice where the offence requires proof of malice: r. v. ctllliiingham, supra n.3. 67. (1983) 78 c.a.r.149 68. on the pretext that recklessness under the criminal damage act is directed at a future event, whereas recklessness as employed in the sexual offences (amendment) act 1976 is directed towards an existing fact, the state of mind of the victim: ibid., at p.154. 69. (1983) 78 c.a.r. 149, at p.154. 70. cf the dictum of lord lane in r. v. pigg [1982] 2 all e.r. 591, who had stated in relation to caldwellllawrrnce, (at p.597): " ... we do not think, however, even had we wished to do so, that we are entitled to distinguish either of these cases ... they are decisions on the meaning of the word 'reckless' albeit in different acts." 71. [1983] 2 a.c. 493. 72. ibid., at p.506. lord diplock, it is to be noted, concurred with lord roskill's judgment. 73. ibid. 43 the denning law journal particular case. that simple and single meaning should be the ordinary meaning of those words as stated in this house in caldwell and lawrence." the decision of the court of appeal in satnam, which was decided shortly after seymour, in introducing a definitional dichotomy to the term reckless, does so clearly without authority, and it is submitted that the new subjective test of recklessness within the context of rape can be supported neither by principle nor reason.74 subject to the former of the above exceptions, the generally ubiquitous nature of the "diplock definition", as has been observed, was recognised and promoted by lord roskill in seymour. it has been argued that the caldwell test embraces a form of mens rea which at best can be termed notional. its potential application to the offence of reckless manslaughter, exposing the accused thereby to a possible sentence oflife imprisonment, and at the same time dispensing with a conventional requirement of mens rea, would accordingly mark a particularly undesirable development. however, with lord roskill clearly promoting an expansive interpretation of caldwell, it is unsurprising that the decision of the house was that reckless manslaughter should yield to the 'simple and single' definition of the term. this reasoning has been subsequently applied by the privy council in kong cheuk kwan v. r.75 to a case involving a maritime collision resulting in death; and by the court of appeal in r. v. goodftllow76 where death resulted from an act of arson. does caldwell recklessness allow for a separate category of gross negligence manslaughter? it is a popular contention that the expansive nature of caldwell recklessness has rendered gross negligence, as a separate head of involuntary manslaughter, otiose. indeed watkins lj in the course of delivering the judgment of the court of appeal in seymour opined: " ... we are of the view that it is no longer necessary or helpful to make reference to compensation and negligence. the lawrence direction on recklessness is comprehensive and of general application to all offences, and should be given to juries without in any way being diluted.,,77 this view was endorsed by both lord roskill in the house of lords, and the privy council in kong cheuk kwan, with the latter court aligning itself to the view that gross negligence manslaughter has been abrogated due to the caldwell definition being applied to reckless conduct manslaughter, with a consequent broadening of its scope. 74. the genesis of the indifference test, it is submitted, is to be attributed to the growing disquiet ofthe judiciary with the caldwell formula, as evidenced most recently in r. v. west loiuuj// coroller, supra n.65. accordingly, the regret ell.'pressed by lord lane in r. v. morrison, supra n.62, that there now exist two types of recklessness, must be viewed as being unduly optimistic: see the commentary to r. v. farrell [1989] cn·m. l.r. 376, at p.377. 75. (1985) 82 c.a.r. 18. 76. (1986) 83 c.a.r. 23. 77. (1983) 76 c.a.r. 211, at p.216. the reference to "compensation or negligence" is clearly borrowed from the language of lord hewart cj in the seminal authority of r. v. bateman [1925] all e.r.45. 44 recklessness re-examined there is certainly no dearth of evidence to substantiate such authoritative pronouncements and this arguably leads many proponents of diplock recklessness to be seduced into the conclusion that caldwell has become all-consuming. those who advocate the nadir of gross negligence manslaughter are fortified in their contention by the indisputable fact that the offence of reckless conduct manslaughter is, in many respects, wider in embrace that that of gross negligence. testimony for this proposition is provided by a consideration of the consequences which the accused must have been reckless or grossly negligent about. whilst seymour is certainly equivocal on this point, it would seem clear from a consideration of kong cheuk kwan and goodfellow, that the defendant need only be reckless with regard to a risk of some physical harm ensuing from his act. accordingly, if in such circumstances death results, reckless manslaughter may successfully be charged. it has long been settled law that in order for a charge of gross negligence manslaughter to succeed the accused must have been grossly negligent with respect to death, or perhaps serious bodily injury.78 furthermore, the risk envisaged in lawrence includes "an obvious and serious risk ... of doing substantial damage to property." on the facts in seymour, where the instrument of death was an eleven ton lorry which crushed the victim between it and her motor car, any reference to the damage to the car would clearly have been superfluous and would only have served to confuse the jury. accordingly, lord roskill confirmed that the first instance judge had been correct in not referring to a risk of property damage "a reference which was irrelevant in this case" {author's emphasis).79 however, the spectre still remains of there being a conviction for manslaughter where, in a relevant case, there exists an obvious risk of substantial property damage, coupled with a result of the victim unexpectedly dying. the ability to mount a charge on the grounds of reckless conduct manslaughter in such circumstances would greatly simplifythe task of the prosecution.80 the major obstacle to a successful conviction based on the grounds of gross negligence manslaughter has already been noted, namely establishing the nexus between gross negligence and the result of death or really serious bodily injury. the alternative charge of unlawful act manslaughter has the independent limitation that the unlawful act must also be dangerous in the sense that, objectively assessed, it must have subjected the deceased to the risk of some bodily harm (infra).8i the risk of property damage per se, irrespective of substantiality, has never 78. the risk must go to the "life and safety of the victim": lord hewart cj in r. v. bateman, ibid. at p.48. 79. [19831 2 a.c. 493, at p.504: see r. v. gnffiths (1989) 88 c.a.r. 6. 80. it is to be noted, however, that in kong cheuk kwan the requirement of causation was stressed; the obvious and serious risk of causing substantial property damage, having materialised, must have been the cause of the victim's death. 81. per edmund davies] in r. v. church [1965j 2 all e.r. 72, at p.76. 45 the denning law journal previously sufficed to found a manslaughter charge.82 it would appear that a conviction on the grounds of involuntary manslaughter is now given judicial sanction in circumstances where the reasonable man would not have perceived any risk of personal injury to another. the sine qua non of the offence in such circumstances becomes simply that the ubiquitous legal talisman would have considered there to exist an 'obvious and serious risk of doing substantial damage to property'. it is a sad reflection on the english judicial process that the term 'involuntary' has come to cover a result (bodily injury) that was not merely undesired, but one which may have been considered and (wrongly)eliminated.s3 it is apparent that this novel route to the obtaining of a manslaughter conviction has had its foundations firmly laid in lawrence, which house of lords' decision has presaged a potentially large and dangerous extension to the previous law. the recent decision of r. v. sangha84 may, with a material alteration of the facts, illustrate the potential scope of this new category of manslaughter. again, this was a case brought under the criminal damage act 1971. the appellant, in a state of extreme inebriation, had set fire to a flat occupied by some neighbours. the forensic evidence indicated that the fire had most probably been started when the flat was empty. nevertheless the appellant was charged, inter alia, with setting fire to the flat being reckless as to whether such property would be damaged and, further, being reckless as to whether the life of another would be thereby endangered. applying lord diplock's judgment in caldwell, the court of appeal concluded that the ordinary prudent bystander would have believed there to exist an obvious risk that life would be endangered. the appellant's conviction was accordingly affirmed. bearing in mind the appellant's belief that the flat was empty when he started the fire, it would be interesting to speculate what the position would have been if the flat had been occupied, with death resulting. it would seem that a charge based on gross negligence may lie, but only if the belief that the flat was empty was formed in a criminally negligent way.85 by the same token unlawful act manslaughter may also lie but again subject to an important caveat, namely in this case, that the unlawful act was one which all sober and reasonable people would inevitably recognise would subject another to at least the risk of some harm resulting.86 conversely, however, it would appear that with the prosecution 82. cf r. v . fenton (1830) 1 lew 179 where the defendant's act of trespass was considered to be a sufliciendy unlawful act to form the basis of an unlawful act manslaughter charge. this extreme approach was quickly retreated from: r. v. franklin (1883) is cox c.c. 163. it is particularly regrettable, therefore, that a new, and potentially far-reaching, form of constructive manslaughter has emerged a century later in the form of the 'substantial risk to property' test. 83. it is to be observed that in the absence of the sufficiency of recklessness with regard to a substantial degree of property damage, the defendant's belief that he had eliminated all risk of personal injury by bringing him within the lacuna, would otherwise exclude him from a manslaughter charge, for he has not been reckless in this regard: see, infra, pp. 47-48 in text. 84. [1988] 2 all e.r. 385. 85. cf the example of the aids sufferer postulated, infra, p.48 in text. 86. see, supra, n.8!. 46 recklessness re-examined concentrating almost entirely upon the adus reus, the accused could be established as having been reckless with far greater ease. all that here has to be established is that the accused created an obvious and serious risk of substantial property damage. the burnt out shell of the flat would provide incontrovertible evidence that this was so. the mens rea required for this offence is supplied readily the accused was clearly at least caldwell-reckless with regard to the substantial property damages and therefore the offence is complete. if the approach above described were adopted by the courts it would represent a large extension of the boundaries of involuntary manslaughter, with the existing limitations (of bateman and church) being circumvented. the accused is being convicted of manslaughter because of the substantiality of the property damage, and his recklessness in that regard is all that the prosecution must prove. it may be noted that even for a charge of common assault, recklessness with regard to injuring the victims, or at least making them fear for their personal safety, is required. the possibility of securing a manslaughter conviction in such circumstances serves to underscore the truism that the caldwell test, requiring proof of an obvious and serious risk of causing physical injury, or substantial property damage, cannot be transported wholesale into different offences without qualification.87 it is submitted that whilst reference to property damage is wholly appropriate in the context of the simple offence of reckless driving, a crime which in itself is not result-based, it is equally inappropriate to introduce, as the touchstone of iiabil~ty for another's death, the same criteria. whilst it has to be conceded that lord diplock applied the composite test to the result crime of causing death by reckless driving in lawrence, it should be borne in mind that the maximum term of imprisonment which that offence carries, in contrast to that of manslaughter, is five years imprisonment. it may also be observed that lord diplock in fact prefaced his instruction in lawrence in terms that it was to provide the jury with guidance simply on what was meant by 'driving recklessly'. the notion that recklessness with regard to property damage can supply the mental element in any crime which focuses upon personal injury or death is once again hard to square with lord diplock's repeated assertion that recklessness continues to represent a state of mind. it would appear that the third mental state from caldwell is here rendered impotent; even the defendant who considers the risk of injury to another and who then takes precautions which he considers to have eliminated the risk of physical injury, will be guilty of manslaughter if death follows, provided that an obvious and serious risk of substantial property damage accompanied his act. take the following example. the defendant, in revenge, decides to raze the victim's house to the ground. he has no intention of causing 87. indeed, lord hailsham warned of the danger of general tests: [1982] a.c. 510, at p.519. as has been noted, lord roskill in seymour while acknowledging the generally ubiquitous nature of the caldwell test, expressly excluded any consideration of substantial property damage on the facts before him: [1983] 2 a.c. 493, at p.504. 47 the denning law journal anybody therein injury and, accordingly, before setting the house ablaze, telephones to make sure nobody is in. the victim who had failed to answer the telephone being deaf, is killed in the blaze. the defendant will seemingly be convicted of reckless manslaughter due to his intention/recklessness in regard to the substantiality of the property damage. nothing has been stated thus far to cast doubt upon the assertion that gross negligence manslaughter has met its nadir, with the discussion focusing principally upon the breadth which caldwell has injected into reckless manslaughter. it would seem however that in one sense caldwell recklessness may be narrower than the concept of gross negligence. the cause of this is once again the lacuna or third mental state arising out of the 'diplock' test.88 the lacuna illustrates that whilst caldwell recklessness may include constructive mens rea, in the sense that within the test falls an "act which presents a real risk of harmful consequences which anyone acting with reasonable prudence would recognise and give heed to" (e.g. elliott)89 it may not, on this reasoning, be viewed as a test totally devoid of mens rea. to repeat the assertion rehearsed above, the conscientious defendant who actually believes that in his case he has successfully excluded the possibility of the risk achieving fruition, has established unequivocally a lack of mens rea. the existence of the lacuna ensures, subject to the fire-raiser example above, that even the caldwell test cannot catch the defendant whose safeguards adopted to avoid any injury have unexpectedly failed. the above point may be graphically illustrated by an as yet hypothetical situation. consider the defendant who has been found to have aids. he continues to have intercourse with his partner without telling her of his condition. she consequently contracts the disease and dies. those who deny the existence of the lacuna to the diplock test would necessarily treat the defendant who simply gave no thought to the disease's proliferation in the same way as the defendant who sought medical advice and understood (wrongly) that the use of a contraceptive would protect the partner. it would necessitate a linguistic aberration before the latter defendant could be included within the definition of carelessness (lord diplock's definition of recklessness). it is asserted that assuming he believed that the risk of communicating the disease had been eliminated, and this is accepted by the jury, the defendant cannot, under the diplock test, be adjudged reckless (cf. shimmen, supra). the ability, via proof of conscientiousness, to avoid a conclusion of recklessness, would not appear to be relevant where it is alleged that the defendant was grossly negligent however. if these twin contentions are borne out it would clearly cast doubt upon the assertions of watkins l.j., in the court of appeal in seymour, and concurred in by the privy council in kong cheuk kwan, that the new 88. cf griew. [1981] crim. l.r. 743, at p.751 where, in the cdntext ,of reckless driving, it is cdntended that the lacuna wduld ndt apply where there wduld be liability fdr gross negligence. 89. [1982] a.c. 510, at p.525. 48 recklessness re-examined form of reckless conduct manslaughter has led indubitably to the nadir of gross negligence manslaughter. returning to the example postulated above of the aids sufferer: notwithstand-' ing the decision of the divisional court in chief constable ofavon f5 somerset police v. shimmen, provided the jury believe the defendant's assertion that he thought the use of a contraceptive actually eliminated the risk of communicating the disease, he cannot be reckless in the caldwell/lawrence sense. he is not a defendant who has given no thought to the risk which attends his act, for he has recognised the danger of the disease being transmitted sexually. neither is he a defendant who has recognised the risk but has 'nonetheless gone on to do it'. evidence of conscientiousness which has led to a (mistaken) belief that the risk is eliminated by the precautions adopted, shows that he has not gone on to take the risk regardless of consequence. accordingly, when the disease is communicated to the partner, who subsequently dies, the defendant cannot, by virtue of the lruuna to the diplock test, be convicted of reckless conduct manslaughter. this leaves the two 'established' categories of involuntary manslaughter, namely those based upon an unlawful act or gross negligence. assuming that the victim had no knowledge of the defendant's affliction, there is the absence of any assault or battery on which to base an unlawful act manslaughter charge.9o it is contended however that the judge on these facts should properly direct the jury that what the defendant has done could be regarded in law as being grossly negligent behaviour. notwithstanding the use of a contraceptive, the conduct of the accused, objectivelyassessed, would be likelyto be considered by the jury to be sufficiently heinous to amount to gross negligence. the evidence would show there to have been a manifest disregard of the victim's right to self-determination and this would be likely to be enough to convince the jury that proof of the crime had been properly made out. in order for the gross manslaughter charge to be established it will also be necessary for the jury to consider the nature of the consequence to which the victim has been subjected. in the language of lord hewart cj in r. v. bateman,91 the defendant's negligence must have gone " ... beyond a mere matter of compensation between subjects and [shown] such disregard to the life and safety of others, as to amount to a crime against the state " the postulated case seems arguably to fall within the above diaa. the potentially fatal consequences of contracting the disease would satisfy the stricter result requirement which characterises this class of involuntary manslaughter. the existing case-law provides another example which illustrates that there is a continuing role for gross negligence manslaughter. in r. v. lamb92 the court of appeal had to consider the question of whether the appellant was to be legally 90. in such a case the victim's consent to the nature of the act apparently prevents the commission of an assault or battery: r. v. clarence (1888) 22 qb.d. 23; see also r. v. lamb [1967] 2 all e.r. 1282. 91. [1925] all e.r. 45, at pa8. 92. [1967] 2 all e.r. 1282. 49 the denning law journal responsible, in manslaughter, for the death of his best friend. the friend had been killed when the appellant pointed a loaded revolver at him in the belief that, though two of the chambers had bullets in them, the firing chamber was empty. however, unknown to the appellant, the action of pulling the trigger rotated the chambers of the gun bringing a bullet in line with the firing pin, causing the revolver to fire. the court of appeal quashed the appellant's conviction based on unlawful act manslaughter, holding that as both friends had been acting in jest there was an absence of any assault and therefore no unlawful act. rather generously, perhaps, the court of appeal concluded that the trial judge's mis-direction to the jury on the question of the requirement of an unlawful act also tainted the latter's finding of gross negligence manslaughter and the appellant was acquitted. . if a similar case were to arise today it is submitted that the act of checking that the chamber was empty would supply the necessary diligence to prevent the defendant from being adjudged reckless. having positively concluded that the chamber contained no bullet he has thereby considered that all risk of harm has been eliminated (cf. shimmen, supra). applying the test proposed by professor williams (supra), the credibility of the defendant's claim would be gauged by asking: "would the defendant have subjected his wife/girlfriend to similar treatment?' as the two men in lamb were best friends it would seem that the appellant would certainly have passed through the credibility threshold. accordingly, it would seem that if a similar case were now to arise the only available category of manslaughter with which the defendant could be charged would be gross negligence. it would be difficult to refute the assertion that the conduct of firing a gun, known to be partially loaded, with an absence of justification (e.g., self-defence), is conduct of the grossest negligence. it is suggested, therefore, that those who mourn the demise of gross negligence manslaughter have failed to appreciate the significance of the lacuna from caldwell which ensures, at least for the time being, the continuing longevity of this category of involuntary manslaughter. conclusion it is hoped that the foregoing analysis has established both the reality and importance of the lacuna. those who regard the status of the lacuna with undue circumspection are flattering it with a scope of application which it does not merit. the twin features that the defendant must believe that the risk has been eliminatetf3 and that the jury find this proposition tenable, combine to ensure that the defendant who has an unreasonable belief in his own capabilities, when pursuing an obviously risky enterprise, is likely to be adjudged reckless. shimmen is living testimony that the actor who has an "unshakeable faith in [his] ability to 93. it has been contended that in practice there will exist no class of 'negligible' risk because any subjection of another to a risk without justifiction will be considered unreasonable:e.g., chiefconsiable of avon and somerset police v. shimmen, supra n.46. 50 recklessness re-examined avoid danger"'}4 is most unlikely to avoid a conclusion of recklessness. it is submitted that far greater danger is associated with denying efficacy to the lacuna, for here any veneer of mens rea is destroyed, and the consequent disquiet of the judges will be translated into the caldwell formula being eroded in a piecemeal and unpredictable fashion.95 it is to be hoped that the implementation of the law commission's draft criminal code bill (supra) will follow without delay, restoring recklessness as an awareness-based concept. until such statutory intervention takes place, however, there is an urgent need for certain of the judiciary to resist the temptation to indulge in the exercise of linguistic perestroika, apprised of the knowledge that so to do would be the most certain legal example of reckless behaviour. 94. birch, supra n.38, at p.5. 95. e.g., r. v. satnam (1983), supra n.67 r. v. west london coroner (1987), supra n.65. 51 rational tax enforcement the rt. hon. the lord keith of kinkel tax is not a popular subject except among those who hope to make money out of advising about it, or selling schemes aimed at avoiding or mitigating its incidence. however, the series of cases which started with ramsay v. inland revenue commissioners! has greatly reduced the number of concerns in the business of marketing tax avoidance schemes, and so many taxpayers have had their fingers burnt by the wares that they purchased so hopefully that there can be few nowadays who are tempted to take the risks involved. the reduction in the higher marginal rates of tax and the introduction of a 40% marginal rate of capital gains tax may also operate to the same effect. the ramsay series of cases, and particularly furniss v. dawson,2 engendered serious doubts as to whether the principle enunciated in the duke of westminster's cas? had been thrown completely overboard by the house of lords. it was feared that in future any act by which a taxpayer so arranged his affairs that he was liable to pay less tax than he would otherwise have done might be struck down by the courts. it was felt in some quarters that the house of lords had turned itself into an arm of the inland revenue dedicated to securing that all taxpayers so arranged their affairs as to be liable for the maximum amount of tax. the features that distinguished furniss v. dawson from its predecessors were that the series of transactions there involved were not of a circular self-cancelling character, but had a commercial object in view,while the interposed step appeared to have certain definite and inescapable legal consequences. the intermediate company was on the face of it entitled, as a legal entity distinct from the original owner of the shares in question, to the proceeds of sale of these shares. it will be remembered that the scheme entered into involved the shareholders in an operating company transferring their shares to an isle of man subsidiary company in exchange for shares in the latter, which then sold the operating company shares on to a purchaser. everything was carried through in one morning, in pursuance of an informal, non-contractual arrangement with the purchaser. the object was to ·the denning lecture 1989 under the auspices of the bar association for commerce, finance and industry. 1. [1982] a.c. 300. 2. [1984] a.c. 474. 119 the denning law journal postpone liability to capital gains tax in reliance on paragraphs 4(2) and 6(1) of schedule 7 to the finance act 1965. it was held that the disposal by the isle of man company fell to be disregarded for fiscal purposes. capital gains tax was accordingly payable as though the shares in the operating company had been transferred directly to the purchasers and the purchase price had been received by the taxpayers. furniss v. dawson was followed by a period of doubt as to its true ratio decidendi. the transfer of the shares to the intermediate company had been held by commissioners to be a genuine and not a sham transaction, yet the fiscal consequences which by the provisions of paragraphs 4 and 6 of schedule 7 to the act of 1965 were to be attached to such a transaction were held not to apply. so it came to be thought by some that the case rested upon the principle that any-j1ing done with a view to avoiding or minimising tax upon a contemplated future transaction fell to be struck down. this view of the case was fostered to some extent by certain observations of lord diplock in i.r. c v. bunnah oil co. ltd.4 and by lord scarman in furniss v. dawson itself. lord diplock said: "it would be disengenuous to suggest, and dangerous on the part of those who advise on elaborate tax avoidance schemes to assume, that ramsay's case did not mark a significant change in the approach of this house in its judicial role to a pre-ordained series of transactions (whether or not they include the achievement of a legitimate commercial end) into which there have been inserted steps which have no commercial purpose apart from the avoidance of a liability to tax which in the absence of those particular steps would have been payable. the difference is in approach." lord scarman had appeared to introduce a moral dimension into the matter, by his reference to determining "the limit beyond which the safe channel of acceptable tax avoidance shelves into the dangerous shallows of unacceptable tax evasion." this supposed principle constituted the high water mark of the inland revenue's argument in the three cases reported under the name of craven v. white.6 lord oliver said: "your lordships are thus invited ... to construct a general catch-all formula for rendering ineffective any step undertaken with a view to the avoidance or minimisation of tax on an anticipated transaction or disposition.,,7 the facts in all three cases presented a more or less close resemblance to those in furniss v. dawson. in each of them assets, in one case land and in the other two 3. [1936] a.c. 1. 4. (1983) 54 t.e. 200, at p.214. 5. supra n.2, at p.513. 6. [1988] 3 w.l.r. 423. 7. at p.456. 120 rational tax enforcement shares, had been transferred to subsidiary or sister companies in anticipation of a sale to an outside purchaser and with a view to avoiding or postponing a liability to tax which would have been incurred on a direct sale. in two of the cases the sale immediately in contemplation had not come to fruition, but a sale in one case to a different purchaser and in the other case to the same one had in fact been completed over a year later. in the third case, craven v. white itself, two sets of negotiations were in progress at the time of the transfer to the intermediate company, and one of them was brought to a successful conclusion by a completed sale only a short time afterwards. the house of lords decided unanimously that tax had been successfully avoided in the first two cases, and by a majority of three to two, also in the third case. the most important effect of the case is that it laid to rest the idea that any transaction which is effected for the purpose of avoiding tax on a contemplated future transaction is, because it is "planned", necessarily to be treated as being one with the later transaction and having no independent effect. that proposition was not supported even by the minority in the house. the rationale of ramsay v. burmah oil and furniss v. dawson was put firmly on the basis of statutory construction. in regard to the circular, self-cancdling series of transactions which featured in the first two of these cases, the true effect of them was nil from the point of view of creating an allowance loss such as the legislation intended to make deductible in computing chargeable gains. furniss v. dawson was explained on the basis that the two interconnected transactions were equivalent in legal effect to a tripartite contract, this being the essence of the ratio decidendi contained in the speech of lord brightman. the two transactions were capable of being realistically treated as one indivisible whole involving only a single disposal for tax purposes. the intermediate company never acquired control of the operating company within the meaning of paragraphs 4 and 6 of schedule 7 to the act of 1965. lord oliver said: "as the law currently stands, the essentials emerging from furniss v. dawson appear to me to be four in number: (1) that the series of transactions was, at the time when the intermediate transaction was entered into, pre-ordained in order to produce a given result; (2) that the transaction had no other purpose than tax mitigation; (3) that there was at that time no practical likelihood that the pre-planned events would not take place in the order ordained, so that the intermediate transaction was not even contemplated as having an independent life; and (4) that the pre-ordained events did in fact take place. in these circumstances the court can be justified in linking the beginning with the end so as to make the single composite whole to which the fiscal results of the single composite whole are to be applied."g 8. at pp.462, 463. 121 the denning law journal later he said: "[i do not] consider that the ramsay approach, while no doubt applicable to a much wider variety of transactions than those described in the instant appeals, requires further exposition or clarification. its basis is manifest and has been clearly explained by lord wilberforce. what the apellants urge upon your lordships is a restatrnent of the approach in -a formula based, as it seems to me, not upon seeking to identity the reality of sequential transactions, but upon a much wider, but at the moment unidentified general principle of judicial disapprobation of the lawful rearrangement of the subject's affairs designed to produce a result which is fiscallyadvantageous to him in relation to a transaction into which he anticipates entering. that is essentially a legislative exercise and one upon which, in my opinion, your lordships should hesitate long before entering.,,9 lord templeman, who dissented on the result in craven v. white but not in the other two appeals, took the view that if the taxpayer planned to carry out a transaction which would normally attract tax by combining it with another transaction solely designed to avoid tax, and the whole scheme was eventually carried through, then the intermediate transaction in every case fell to be disregarded for fiscal purposes. it made no difference that the final transaction was not certain to be completed at the time the intermediate transaction took place, nor that a considerable interval of time might intervene between them. craven v. white was caught because the final stage of the pre-planned scheme actually took place. in the other two cases the final stage originally planned did not take place. the eventual disposal was not part of the original plan, so these cases were not caught. in the result, taxpayers and their advisers must now have a reasonably clear understanding of the limits of the ramsay principle and what steps towards tax avoidance or mitigation they may safely take without incurring liability. it is plainly highly desirable that the law should be clear in this respect. it remains the law that artificial transactions which from beginning to end have no other purpose than tax avoidance have no utility for achieving that purpose. it has also been made clear that arrangements made with a view to avoiding tax on some genuine transaction which may be contemplated as likely to be carried through in the future are not vulnerable to being struck down judicially. it is for parliament, not the courts, to set the parameters beyond which tax avoidance may not legitimately and effectively be carried on. the committee on tax enforcement powers of which i was chairman and which reported in 1983 looked fairly briefly at tax avoidance. it made two recommendations in this field which were directed at securing that the revenue departments might more readily gain access to information about what transactions had actually taken place in the course of a tax avoidance scheme. if a 9. at pam. 122 rational tax enforcement taxpayer has been advised that such a scheme has resulted in no liability to tax, he may think there is no need to disclose its existence in his return. one witness before the committee said: "the taxpayer builds a tax-proof castle: if the inspector could see inside he would see the weakness in the castle's structure, but the taxpayer does all he can to make sure that the inspector never sees inside it." to meet this sort of case the committee recommended that there should be included in the tax return a question on the lines: "in making this return have you taken the benefit of any doubt about whether any item ought to be declared, or any relief or deduction allowed? if so give brief details." this recommendation was rejected by the government. the other relevant recommendation was in the field of legal professional privilege. a taxpayer is not entitled to keep his affairs confidential in a question with the revenue departments, and it seemed to the committee that there was room for the view that legal professional privilege should not be capable of being manipulated so as to secure such a result. the committee had evidence that the details of tax avoidance schemes were on occasion recorded only in instructions to counsel to advise, with a view to these details being kept secret from the revenue. the privilege belongs to the taxpayer, not to the professional adviser, and logically there seemed much to be said for his being obliged to waive it in particular circumstances. so the committee recommended that, subject to stringent safeguards, the privilege should be capable of being overridden by the court where the ascertainment of facts necessary to the proper determination of a tax liability would otherwise be unreasonably impeded. this recommendation was naturally strongly opposed by the law society and other professional bodies, and the government has decided to reject it. these were, however, fairly peripheral aspects of the committee's report. the most important aspects were those at the centre of the tax enforcement system, particularly for income and corporation tax and vat. in the introduction to the report the committee said: "at an early stage we formed the view that the mechanisms which the board ofinland revenue were striving to operate were in many respects antidiluvian and quite unsuited to modern conditions." one of the most unsatisfactory features of the existing system was that every year about 1.8 million estimated assessments on trading profits were made in the absence of timely returns, and that in no less than 1.7 million cases use of the appeal machinery was needed to compel the production of tax returns and accounts. as regards penalties for late or defective returns, these could only be exacted on being imposed by the appeal commissioners and could amount to as 123 the denning law journal much as 200 per cent of the tax due for fraud and 100 per cent for neglect. 10 the committee proposed the introduction of three categories of default carrying automatic penalties which would be assessed as tax by the inspector, alwayssubject to appeal to the commissioners. the first category, "default class a", was to be civil fraud, being the deliberate omission or understatement of amounts in tax returns with the dishonest intention of deceiving the revenue and evading tax. here the penalty was to be the tax due plus default interest plus a maximum of 100 per cent of the tax underpaid, mitigable to 50 per cent for co-operation in the investigation. the second category, described as "default class b" or "gross negligence", consisted in the omission or understatement in tax returns of an amount arithmetically calculated or lesser but repeated omissions or understatements. here the penalty was to be the tax due plus default interest plus 30 per cent of the tax underpaid, non-mitigable. the third category, "default class c", was to be any error leading to the omission or understatement in a tax return of any amount not within default classes a or b. the penalty was to be the tax due plus default interest only. in february 1986, the board of the inland revenue put out a consultative document including draft clauses, certain of which would have introduced automatic penalties on the lines proposed by the committee, but subject to modification. in july 1988, a further consultative document was issued which proposed to drop these clauses and, instead, simply to amend section 95 of the taxes management act 1970 by removing the obsolete fixed penalty of £50 and reducing the 200 per cent limit to 100 per cent, which would be fully mitigable. this contrasts with the new regime for vat penalties, already introduced by the finance act 1985, which i shall be considering later. it remains accepted, however, that the income tax penalties should be assessed by the inspector as additional tax, subject to appeal to the commissioners. one of the most vexatious problems addressed by the committee related to late returns of income both by trading and by non-trading taxpayers, and the non-delivery of accounts. it is this that lies at the heart of the excessive use of the appeal machinery to compel compliance. at present an income tax return is required to be completed and sent back within 30 days of its issue, and failure to do so is technically, but never in practice, subject to penalty. this is obviously a completely unrealistic requirement in the great majority of cases, and the committee recommended that the time limit be increased to three months, with provision for extension up to six months with the approval of the inspector, and subject to automatic penalties for late returns. it was also proposed that trading taxpayers should be required to submit accounts in support of their tax returns not later than twelve months after the end of their accounting years, with provision for gradually reducing this to seven or six months. where the accounts were not available when the return was sent in, it was proposed that the profits for the 10. taxes management act 1970, section 95. 124 rational tax enforcement preceding accounting year should be entered. in the latest consultation paper issued by the inland revenue (july 1988), these proposals have all been rejected, at least at this stage, for non-trading taxpayers and unincorporated traders. however, in relation to corporation tax parliament has already enacted, in sections 82 to 91 of the finance (no.2) act 1987, a new system known as pay and file. this is not to come into effect until 1992 at the earliest, in order to enable companies and their accountants to make the necessary preparations, and also because the revenue will need to equip itself with new computer facilities in order to administer the new system. broadly speaking, the effect of the pay and file regime will be that a company will be required to make its own assessment of the corporation tax due and pay it on the usual due date nine months after the end of its accounting period. however, no proceedings for collecting the tax can be instituted, if the company does not pay at that stage, until the inspector has made an assessment on the company and thirty days have elapsed from the notice of it. the company is to have twelve months from the end of its accounting period to send in its return and accounts. if it fails to do so it will incur an automatic penalty unless it can show a reasonable excuse for the failure. the penalty will start at £100 and increase in steps up to £1 ,000 according to the length of the delay and the number of occasions on which the company has previously been in default, together with 10 per cent of the unpaid tax if the return is up to two years late and 20 per cent if the delay is over two years. when the final tax liability is settled interest will be payable to the revenue, as from the due date for payment of tax, on any amount by which the payment then made is less than that eventually assessed, and will be payable by the revenue to the taxpayer on the amount of any excess payment, which will itself, of course, be repaid by the revenue, subject to any set-off. the pay and file regime will include the introduction of a new form of corporation tax return, the details of which are being worked out between the revenue and representatives of companies and the accounting profession. a considerable amount of attention is given in the july 1988 consultative document to the appropriate rates of interest on underpayments and overpayments of tax. it is proposed that all interest should be simple and not compounded and that it should be paid without deduction of tax and left out of account for all tax purposes. the rate of interest on overdue tax is proposed to be 2.5 per cent over base rate, and that on repayments base rate minus 1 per cent. these changes or proposed changes seem to offer some prospect of bringing about improved compliance without imposing excessive burdens on taxpayers, and of reducing the previous excessive reliance on the appeal machinery, though they do not go so far as the committee would have liked. it would be tedious and time-wasting to try and go through many other aspects of the committee's recommendations which have been either accepted or rejected by the government. however, it is of some interest that there has been acceptance of the proposal that the revenue's powers under section 20 of the taxes management 125 the denning law journal act 1970 should be enlarged by enabling it to require a taxpayer to answer written questions, in addition to producing documents called for. there has also been acceptance that the third parties who can be required to produce documents should no longer be limited to certain close relatives of the taxpayer together with, as regards business profits, any person carrying on a business and any company whether carrying on business or not. the present intention seems to be to make all third parties subject to the requirement to produce documents, but the prior approval of an appeal commissioner will be required, as indeed it will be for all requests for documents or particulars. the present state of playas regards the committee's recommendations on income and corporation tax appears to be that 28 have been accepted in detail or in principle, 20 have been accepted with modification, 22 have been rejected and 9 have been reserved for further consideration. full implementation of the accepted recommendations cannot, however, be expected until well into the 1990s, since it depends to a large extent on computerisation of inland revenue operations. in the field of vat matters have moved much further and faster. the committee made 59 recommendations relating to vat. of these 38 were accepted and have been enacted, 10 have been accepted with modifications and enacted, 9 were rejected and two are still being considered. of those rejected, five related to legal professional privilege. others rejected were concerned with the publication of the names of offenders, the level of judicial authority for issuing warrants for vat searches (it was proposed to raise the level in england and wales from magistrate to circuit judge), notification of taxpayers before disclosures to foreign revenue authorities, and jeopardy assessments. the principal aspect of vat enforcement with which the committee found fault was that almost all failures by the taxpayer, including breaches of regulatory provisions, were subject to criminal prosecution. this regime had been carried over from purchase tax. its existence caused much indignation among bodies such as the national federation for the self-employed. in practice, the number of defaulters prosecuted was very small. it was estimated that in the autumn of 1982, out of about one million traders expected to make vat payments, more than 375,000 were at least one month late and more than 130,000 two months late. customs and excise had insufficient resources to enable more than 16,000 traders to be included in any prosecution routine at anyone time. in 1980-81, there were 3,767 prosecutions for failure to furnish returns and 739 for failure to pay tax. there was no provision for payment of interest on overdue tax. it seemed to the committee that this was highly unsatisfactory. not only did prosecution appear quite unsuited to securing compliance with purely regulatory requirements, but it was rarely invoked and massive amounts of tax were regularly outstanding with substantial loss to public revenue. so the committee proposed the abolition of the criminal sanction for regulatory matters and the substitution of civilpenalties, together with the introduction of default interest on underpayments of tax or overclaims. it also recommended the introduction of two new types of 126 rational tax enforcement "civil default". the first was described as "gross negligence" (the description "serious misdeclaration" has now been adopted), covering defaults of a large or persistent character. the test was to be objective, turning on the size of an understatement or overclaim and whether it was repetitive. the default was to attract a fixed rate, non-mitigable penalty of 30 per cent of the tax understated or overclaimed, together with default interest. the second type of default was described as "civil fraud", defined as an act or omission designed to deceive customs and excise with the object of evading vat. the penalty was to be 100 per cent of the tax evaded, mitigable down to 50 per cent according to the degree of co-operation received from the taxpayer during the investigation, together with default interest. the committee recommended that all civil penalties and default interest should be assessed as tax, with a right of appeal to the vat tribunal. it will be seen that this regime closely resembled that proposed for income and corporation civilpenalties. a further important recommendation was that failure to notify liability to registration for vat or the unauthorised issue of vat invoices should constitute the civil offence of "gross negligence" attracting the non-mitigable penalty of 30 per cent of. the tax involved, together with default interest. it was also proposed that for failure to furnish returns or not paying the tax in time there should be a new tariff of civil penalties at daily rates with tax-geared alternatives, starting at the third default in any period of two years, and a tariff of daily rates for failure to keep records or supply information when required to do so. all these recommendations were implemented by sections 13 to 21 of the finance act 1985. the penalties, except that for civil fraud, were made subject to the defence of reasonable excuse. this was not in the bill as first published, but was added by amendment largely due to representations by members of the committee. consideration of this defence now forms a large part of the work of the vat tribunals. all the provisions did not come into effect at once. the penalty for failure to notifyliability to registration came into force from the date of the royal assent. customs and excise regarded this as one of the most important provisions operationally, since a taxpayer cannot be controlled until he is registered. however, sustained criticism of the measure was encountered, largely because the fixedpenalty of 30 per cent of the tax was considered harsh, and defaulters were found to be largely ignorant rather than negligent. so amendments were introduced in the finance act 1988, whereby the penalty was reduced to 20 per cent where the delay does not exceed 18 months and 10 per cent where it does not exceed nine months. customs and excise regard the results of the provison as beneficial. the level of imposition of penalties runs at just over 3 per cent of new registrations, and the value of penalties to the end of december 1988 amounts to £16,679,016. the civil fraud penalty regime did not become operational till the summer of 1987. the policy has been to apply the criminal standard of proof, that of beyond reasonable doubt, rather than the civil standard of balance of probabilities. by the 127 the denning law journal end of 1988, 538 penalties had been assessed. there had been 33 appeals of which 9 were withdrawn and 24 were still awaiting hearing. the value of penalties assessed to 31 december 1988 amounts to £2,334,789. the provisions about default interest and serious misdeclaration penalties were due to be put into effect in july 1988, but it was decided to defer this until late 1989. so there is as yet no indication of how this part of the package will work. the default surcharge provisions were implemented on 1 october 1986, but surcharges did not start to be assessed until may 1987. the regime appears to have had considerable success. the percentage of registered traders who are liable for tax and fail to furnish returns by the due date has fallen from 40 per cent to 17 per cent. this result is thought to be largely due to the widespread advance publicity given to the measures. by the end of 1988, 1343 appeals against surcharge assessments had been lodged with vat tribunals. of these 391 had by then been withdrawn, 203 dismissed and 80 upheld. the average value of tax arrears outstanding at any time has fallen fairly dramatically over the period, and customs and excise consider that they are well on the way towards halving, by early 1989, the average arrears outstanding at mid-1985. the reduction so far is estimated to be nearly £700 million, direcdy related to the implementation of the committee's recommendations. in october 1986, the government instituted a review of the effects on small businesses of the 1985 legislation and a number of other matters. one result was the introduction of a cash accounting system for businesses having an annual turnover not exceeding £250,000. this means that such businesses account for vat on the basis of payments received rather than that of invoices issued, and is of considerable benefit to them from the point of view of cash flow and automatic relief for bad debts. another result of the review was that it was found that the requirement to keep records for six years rather than three years, a change recommended by the committee, did not impose an undue burden on small businesses. in addition the impact of the penalty provisions was modified in certain respects, in particular by amending the law so that late registration should not attract default interest as well as default surcharges. in all the circumstances the members of the committee can reasonably feel that their labours have not been in vain. it is not uncommon for a departmental committee or even a royal commission to find its report pigeon-holed indefinitely. in this instance, however, governmental action has been as speedy as could reasonably have been expected in the two fields which i have been discussing. the result in both of them, it may well be thought, is to put in place a much more rational and more effective system than previously existed. the new vat regime is "nell on the way to being fully operational, although for reasons with which one can have some sympathy matters are not yet nearly so advanced on the income and corporation tax front. although i have not so far specifically mentioned it, it should not be forgotten that practically all the measures recommended by the committee for better procedures, less burdensome and 128 rational tax enforcement oppressive to the citizen, in connection with searches for evidence of fraud, production of documents and other matters which in the past have caused considerable friction have been implemented either by legislation or by administrative action. all this, of course, is not just a cause for self-congratulation on the part of the committee. it is to be hoped that it may be seen as a benefit to the great and conscientious majority of taxpayers, and also, though in different ways, to the minority which is no~so conscientious. 129 intestacy reforms the way things were, 1952 s. m. cretney* proposals to reform succession law can arouse strong feelings: the new code of intestate succession introduced as part of the 1925 property legislation i was seen by some2 as threatening the traditional landed estates; whilst the proposals in the law commission's recent report distribution on intestacy.3 denounced as "naive and simplistic" by the authors of the standard practitioners' work4 and criticised in somewhat more measured terms by other commentators,5 have been rejected by the government. 6 in contrast, the intestates' estates act 1952 which effected a major shift in the policy of the law was enacted with little opposition, notwithstanding the fact that some of the issues which have now come to seem intractable had already become the subject of comment. 7 there may therefore be more than mere antiquarian interest in giving an account, drawing on the official papers which are now available in the public record office, of how that act came to be enacted. 8 * solicitor, fellow of all souls college, oxford. the author is grateful to mr. d. r. holloway (see note 41) who kindly read the typescript. i. administration of estates act 1925, consolidating provisions first enacted in the law of property act 1922. 2. walter hume long, widely regarded as the leader of the country party amongst the unionists and at the time first lord of the admiralty, had his expressed concerns about the possible impact of the reforms on the landed interest allayed by a 12 page letter from the permanent secretary in the lord chancellor's department, sir claude schuster; and long's specific concern that the ending of primogeniture would lead to the break up of the old family estates was met by the argument that such estates were usually held in settlements which would regulate devolution irrespective of the law of intestacy: see letters of 1,9,10 and 12 february 1920 public record office [pro] files lc02/443. 3. law com. no 187 (1989) 4. sherrin and bonehill. the law and practice of intestate succession (2nd ed. 1994) p.124. 5. see notably r. kerridge, "distribution on intestacy, the law commission's report" (1990) 54 conv. 358. 6. see official report (hl) 1 july 1993, vol. 547, col. wa 38. the commission, possibly surprisingly in the light of criticism from commentators and bodies such as the law society [see official report (hl) 16 june 1922, vol. cols. 170-178], appears to regard the government's reaction as exemplifying an unsatisfactory attitude to the implementation of law reform proposals: see twenty-eighth annual report 1993 (law com. no. 223, paras. 1.14 1.23, 3.6 3.8.); and note the debate on the second reading of the law reform (succession) bill, official report (hl) 13 february 1995, vol. 561. col. 502. 7. notably the respective rights of a surviving spouse and the deceased's children. 8. the main files consulted are lc02/444i. 4443, 4445, 4446, 4447. (committee on the law of intestacy. evidence, correspondence with members); lc02/4448 (committee on the law of intestacy. minutes of meetings); lc02/4449 (committee on the law of intestacy, publication of report etc); lc02/4450 (committee on the law ofintestacy, as to carrying out report); lc02/4451 (the intestates' estates bill 1951, correspondence 1951-2); lc02/4452 (the intestates' estates bill, further correspondence); and lc02/6671 (the intestates' estates bill 1951, notes on clauses). 35 the denning law journal sufficient to keep mum?9 the administration of estates act 1925 had been based on the principle that the surviving spouse of an intestate should consistently with the pattern of distribution actually adopted by those who made wills inherit the whole of all save the largest estates: the survivor had the personal chattels and a legacy of £1 ,00010 absolutely, and a life interest in any residue. ii but shortly after the end of world war ii notwithstanding the fact that inflation had been, by more recent standards, modestl2 concern began to be expressed (both officiallyl3 and otherwise'4) about the plight of widows whose husbands had failed to make wills; and particularly about the risk that the matrimonial home would have to be sold in such cases. is eventually a parliamentary question'6 by lain macleodl7 led the lord 9. changes in attitudes over the past half century are vividly demonstrated by a world war ii poster preserved in the public record office which sought to increase security consciousness by the slogan "be like dad. keep mum!" 10. with interest at 5% from the date of death. 11. if the intestate left issue, the surviving spouse had a life interest in half the residue; and if there were no issue, but certain specified relatives (extending to uncles and aunts of the half blood) survived, the spouse's life interest was extended to the whole estate: administration of estates act 1925, s. 46. the personal representatives could (with the consent of the surviving spouse) redeem a surviving spouse's life interest in consideration of a lump sum reckoned in accordance with tables elected by the personal representatives [administration of estates act ]925, s. 48(1)]. experience suggested that this power was not extensively used "perhaps because the existence ofthis particular section of the act is not widely known to personal representatives": repon of the committee on the law of intestate succession, cmd. 8130 (1951) para. 32. 12. according to official indices, it would have been necessary to spend £1 ,700 in ]948 to buy goods which had cost £1 ,000 (the amount of the statutory legacy to a surviving spouse) in ]925. 13. the law society, responding to letters from solicitors inserted a notice seeking views in the gazette in november 1948; and the council concluded that a surviving spouse should receive £5,000 irrespective of whether there were children of the marriage: h. boggis-rolfe [lord chancellor's office] to the treasury solicitor sir thomas barnes, 22 may 1950, pro file lc02/4440. 14. a correspondent informed the lord chancellor's office [see pro file lc02/444i ] that he had had the "painful duty of having to tum the widow out of the family home on the death of a husband ... and i have just dealt with a case where the husband had to leave the home arising out of the death of the wife. i could recite other tragedies, if necessary." 15. the "inflated value of house property" was referred to as a relevant factor in the repon of the committee on the law of intestate succession cmd. 8130 (1951) para. 10; but lord chancellor simonds appears to have deleted the reference to this from his officials' draft of the paper recommending legislation to be submitted to the home affairs committee on 28 november 1951: see the manuscript amendments to the draft in pro file lc02/4451. 16. 16 april 1950. 17. he asked the attorney general to set up a committee on intestacy . 'particularly in relation to the widow's right to purchase the home where she and her deceased husband have lived". he had earlier written to the attorney general, sir hartley shawcross referring to a constituency case in which the deceased's daughter was insisting that the house be put up for auction "which is, 1 believe, within her rights ... although the widow's money contributed greatly to the buying of the house". macleod, elected in 1950, was a powerful orator who had a meteoric rise to office (becoming minister of health in 1952 at the age of 38 on promotion direct from the back benches) but he was not popular with influential right wing conservatives (who thought him "too clever by half" and evidently sometimes found it difficult to accept a man who had earned some part of his living by playing bridge). his sudden death on 20 july 1970 (shortly after being appointed chancellor of the exchequer in the heath government) was thought by other conservatives to be the loss of one of the best prime ministers the country never had: see n. fisher, lain macleod (1973) and r. shepherd, ian macleod (1994) neither of which mentions the role macleod played in this area and the entry by ian gi]mour in the dictionary of national biography. 36 intestacy reforms the way things were, 1952 chancellorl8 to favour the appointment of a committee under lord morton of henrytonl9 to investigate the issue. 20. the great and the good? it was intended that the committee should reflect a broad range of interests; and the files show a high level of political involvement in the process of choosing those to be appointed. advice was taken from a number of ministers. herbert morrison21 urged that members of parliament should be appointed since such representation gave satisfaction to parliament and "shows that the government are fully alive to the fact that members of parliament are pre-eminently the spokesmen of the public" and that such appointments add authority and may be of considerable assistance when the time comes to give effect to the report.22 morrison also thought that there must be "at least one woman23, and it is always an advantage to put on somebody from 18. viscount (subsequently earl) jowitt. jowitt was thought by some to lack political principle. elected as a liberal in the general election in april 1929, he immediately accepted the post of attorney-general in the labour government and joined the labour party (as lord birkenhead put it, "hurling himself upon the socialist omnibus as it was turning at full speed into downing street".) he was expelled from the labour party in 1931 in consequence of accepting office in ramsay macdonald's national government: see for a full account, r.f.v. heuston, lives of the lord chancel/ors 1940-1970 (1987) chapter ii. in the circumstances his choice of the motto "tenax et jidelis " when raised to the peerage may be thought to have been provocative; but there is no doubt that his tenure of the great seal between 1945 and 1951 was distinguished by considerable achievements in law reform. 19. appointed to the chancery bench in 1938 he was created a lord of appeal in ordinary in 1947. it has been said (by sir denys buckley in the dictionary of national biography 1971-80) that' 'he possessed a ready and impish sense of humour which won him general friendship and affection .... his advocacy was consistently careful, constructive, concise and cogent, and in his judicial judgements he never seemed to find any difficulty in reaching a clear and convincing conclusion lucidly expressed. he was a delightful judge to whom to present an argument but a testing one." morton (who had previous experience of public service as deputy chairman of the contraband committee at the ministry of economic warfare and as chairman of the council of legal education) accepted the invitation; and it was thus unnecessary to approach denys buckley (treasury junior counsel 1949-60, and subsequently a chancery division judge and lord justice of appeal) or raymond jennings qc (subsequently master of the court of protection) who had also been regarded as suitable by the department. the permanent secretary's deputy, george coldstream disagreed with a colleague's view that a recently retired county court judge might be asked: coldstream did not think the judge would be useful members of the committee and "he certainly ought not to be invited to preside. " 20. see the letter from h. boggis-rolfe of the lord chancellor's office (subsequently deputy permanent secretary and at one time secretary to the law commission) to sir thomas barnes, the first solicitor to be appointed treasury solicitor.) 21. morrison, the lord president of the council and as such responsible for the co-ordination of the labour government's policies, was a powerful figure in the labour party. he was defeated by hugh gaitskell in the leadership election in 1955 for the successor to c.r. attlee. 22. morrison to jowitt, 12 july 1950, pro file lc02/4440. 23. when the names of the committee were announced there was adverse comment on the fact that only one woman had been appointed. the national council of women of great britain had previously urged that a representative be appointed, but were politely rebuffed: 10 august 1950. ambrose appellbe, a prominent solicitor of progressive views, wrote on behalf of the married women's trust and protested at the gender imbalance (31 october 1950) as did the women's group on public welfare (14 december 1950). 37 the denning law journal wales": his specific proposaf4 of the labour mp and former school teacher mrs. dorothy rees (whom he described as "a sensible and practical woman") was no doubt welcome.25 she was balanced politically by the conservative mp for northwich, john foster,26 a lawyer of renowned brilliance: and further legal input was provided by the barrister michael albery27 and by the solicitor and labour mp, eric fletcher. 28 considerable difficulty was experienced in finding a suitable trade unionist: arthur deakin, the powerful general secretary of the then 1.3 million strong transport and general workers ' union refused to allow morrison's first suggestion to be appointed, and eventually lord kershaw31 (to whom deakin had "no objection") was nominated. harold wilson32 put forward a number of names of possible employers' representatives and his first choice (sir hugh chance, chairman of a family glass manufacturers, "who manages to find time for a good deal of social work") was appointed. keeping the committee within bounds the committee's terms of reference were a matter of great importance to the lord chancellor's officials: there was evidently34 still considerable sensitivity about 24. in response to jowitt's doubts as to whether it was really necessary to have someone from wales, but an expression of readiness to appoint a welshman who was either a lawyer or had experience of social work: jowitt to morrison 28 june 1950. 25. mrs. rees was subsequently engaged in much public work and was appointed dbe. 26. of whom it has rather surprisingly been said that "his public achievement was negligible compared with his private and personal influence which was considerable in england but especially in north america": miriam rothschild, dictionary of national biography 1981-5. 27. albery was the author of a work evidently admired within the lord chancellor's office, on the inheritance (family provision) act 1938. 28. subsequently ennobled as lord fletcher ofislington. it is said that he was the prime minister's choice as solicitor-general in the labour government in october 1964, but that the appointment of a solicitor to that office was then regarded as impossible. he became minister without portfolio with special responsibility for law reform in that administration: r.f. v. heuston, lives of the lord chancellors 1940-1970 (1987). 30. on the ground that the person concerned was indispensable to the union. 31. kershaw had served as chairman of courts of referees under the unemployment insurance acts. 32. then president of the board of trade: see wilson to jowitt 14 september 1950. pro file lc02f4440. 33. 1896-1981. 34. the draft terms of reference put by boggis-rolfe to the treasury solicitor (pro file lc02f4440, 22 may 1950) were confined to a consideration of the rights of a surviving spouse on intestacy, and stated that coldstream and he had "not been able to think of any other subject which could conveniently be considered simultaneously". 38 intestacy reforms the way things were, 1952 reopening discussion on the powers of the court to override a testator's wishes35 and even more to suggestions that the provisions laid down by law of intestacy might be overriden by the exercise of a judicial discretion. yet any increase in the provision to be made for a surviving spouse on intestacy would inevitably increase the number of cases in which hardship might be caused to others who had been dependent on the deceased. in the end, the terms of reference were skilfully crafted to confine the issues as narrowly as the department thought expedient: the committee was (a) to consider the rights36 of a surviving spouse in the residuary estate of an intestate: (b) to consider whether, and if so to what exent and in what manner, the provisions of the inheritance (family provision) act 1938 ought to be mde applicable to intestacies; 37 (c) to report whether any, and if so what, alteration in the law is desirable.38 the committee at work39 the committee worked with what today seems astonishing speed; and the chairman was able to submit the report to the lord chancellor less than eight months after the committee had been established.40 the committee's secretary was evidently 35. under the powers conferred by the inheritance (family provision) act 1938 whch had only been enacted after prolonged and sometimes almost bitter controversy: see tyler's family provision (2nd. ed. by r.d. oughton, 1984) chapter i for an account making use of the lord chancellor's department's records. the labour lord chancellor, sankey, had favoured legislation on the lines of the much more radical legislation proposed by the national council of societies for equal citizenship in 1929 [see sankey to parmoor, 14 october 1929, pro me lc02/ 1185] but there had been disagreement between conservative lord chancellors: the first lord hailsham had been, and remained, an implacable opponent of the legislation; whereas lord maugham (whose view was finally that which prevailed in cabinet) had been prepared to allow parliament a free choice. parliamentary counsel also had views: "i never ceased to say at every opportunity throughout the time whilst i was dealing with it that it appeared to me to be wrong both in conception and in drafting. consequently no attacks upon it are likely to offend my amour propre": see ellis to coldstream 6 august 1941, pro file lc02/1516. 36. under administration of estates act 1925, s.46; supra. n.ll. 37. this important extension to the terms originally proposed by the lord chancellor's officials was urged by the treasury solicitor. 38. repon of the committee on the law of intestate succession cmd. 8130 (1951) (hereafter referred to as "morton report") para. i. 39. the membership was announced in the times. 18 october 1950. b.e. astbury and a.w. brown were appointed to the committee in addition to those mentioned in the text. 40. the report is dated 5 june 1951 and was submitted on 25 june. in contrast, the law commission evidently began its study of distribution on intestacy in 1987, and completed a working paper [no. 108] for consultation on 10 june 1988. its report [law com. no. 187] dated 27 october 1989 was laid before parliament on 18 december 1989. 39 the denning law journal knowledgeable and formidably efficient;41 and the chairman42 did not encourage excessively lengthy discussion.43 but the main factor influencing such a rapid disposal of what might have been thought complex issues is simply that the committee seems to have had no doubt that it could itself interpret what it described as the spirit of the age.44 moreover, the committee accepted45 the philosophy adopted in framing the 1925 legis1ation46 that the provisions made by testators provided a sound basis upon which intestate distribution could be based;47 and it did have available to it a survey of wills proved over a five week period.48 the committee received advice on the law of intestacy in foreign countries49, and written memoranda from seven 41. d.r. holloway. an official in the probate registry he subsequently served from 1966 to 1983 as a registrar of the principal registry of the family division, and is the author of many books. he produced briefing memoranda which may still be regarded as models of their kind; and also marshalled the statistical evidence (collected in pro file lc02/4445) on which the committee placed some reliance, see infra. n.48. 42. evidently his chairmanship gave satisfaction in government circles, since he was almost immediately appointed to chair the royal commission on marriage and divorce. d.r. holloway was appointed as assistant secretary to the royal commission. the royal commission's report (cmd. 9678 published in 1956) was far from unanimous, and has been the subject of strong and even intemperate criticism, notably by o.r. mcgregor, divorce in england (1957). 43. the committee met on only six occasions. the minutes on the fifth meeting give some flavour of the chairman's style: a "long discussion" took place on whether the provisions ofthe inheritance (family provision) act 1938 should be extended to total intestacies. the minutes record an extensive discussion of the issues: and' 'the chairman put the following question to the committee: do you think: that some provision should be made by statute for mitigating cases of hardship which might arise" if the proposal significantly to increase the surviving spouse's rights were adopted? "all the members with the exception of mr. eric fletcher thought that some provision should be made. mr. fletcher then said that in view of the general opinion of the other members he was prepared to support the recommendation put forward by the chairman in the outline of the report. (mr. fletcher left the meeting at this stage).": pro file lc02/4448. 44. motton report para. 10. 45. as had the law society: see boggis-rolfe to barnes, 22 may 1950, pro file lc02/4440. 46. the notes for ministers prepared by officials on the bill which became the intestates' estates act 1952 state that the draftsman of the 1925 act, sir benjamin cherry, "incorporated what he believed to be general intention of persons dying intestate. in doing so he acted mainly on his personal knowledge, no comprehensive statistics of disposals by will being available at the time". but it appears that in fact statistics were obtained from the estate duty office in 1921 and that they confirmed the view taken by cherry: see memorandum no.1 to the morton committee [pro file lc02/4447] p.2. 47. contrast the cogent criticism of this approach by the law commission, distribution on intestacy (law com. no. 187, para. 4.) 48. morton report, para. 18. 49. prepared by sir david hughes parry, director of the institute of advanced legal studies, london university, and author of a still widely used student's text: parry and clark, the law of succession (9th. ed. 1988 by j.b. clark). 40 intestacy reforms the way things were, 1952 organisations, 50and it received a large number of written suggestions51 (including a petition signed by 3,202 persons urging improvement in the widow's position52): but the committee did not seek to dramatise the problems.53, and did not even consider carrying out an attitude or other public opinion survey. the committee reports the committee found no difficulty in reaching agreement on its general policy: it accepted the argument that there had been a considerable depreciation in the value of sterling since the 1925 reforms; and that the matrimonial home was often valued at a sum" greatly in excess" of the statutory legacy, with the result that the surviving spouse might be forced to leave the home which would be sold to satisfy the claims of the deceased's children.54 in the result, there was no longer any similarity between the provision made for the surviving spouse by the average testator and that made for the spouse by the law of intestate succession;55 and, in the committee's view, it followed that the surviving spouse's share should be increased. 56. more but how much more? it would hardly have required the appointment of a committee to reach this conclusion: but deciding on the nature and scale of the increase was much less easy. the committee drew a distinction between cases where the intestate left surviving issue and other cases. where there were surviving issue, the committee decided that a fivefold increase 50. the general council ofthe bar and the council of the law society (who both also gave oral evidence): the solicitors' managing clerks' association, the committee of london clearing bankers, the married women's association and the national council of women of great britain. the marriage law reform society did not disguise the fact that its primary objective was to reform the divorce law so as to permit divorce afterthe spouses had lived apart for two years rather than to reform the law of intestate succession, but it did prophetically favour giving a person who had lived with the deceased as a spouse for three years the right to make a claim underthe 1938 act (cflaw com. no. 187. para. 63 two year cohabitants to be eligible a proposal to which effect is to be given by the law reform (succession) act 1995). 51. although the morton report states that most of the private individuals' comments were about particular cases of hardship [para. 2] it should be recorded that professor glanville williams presciently identified the demographic changes reflected in an increasing number of step-parent relationships as a matter which should be taken into account in any reform; and that a particularly powerfully argued letter from a halifax solicitor, e. maurice drake, solicitor, foreshadowed the recommendation ultimately made by the law commission in 1989 that the whole estate should go to the widow leaving other dependants to an application for the exercise of the court's discretion under the inheritance legislation. 52. morton report para. 2. 53. the secretary found it necessary to write on 30 november 1950 to the editor of the daily graphic stating that whilst he welcomed "to a limited extent" the publicity which the newspaper had given to the committee's work, it was "not correct to say that i hear daily of tragedies caused by persons dying intestate. i have no recollection of making a statement of this nature to your reporter and in any event it is not true. " 54. considerable difficulty was caused to the committee and to officials by the existence of a concession which often led to the home being valued for estate duty purposes at its pre-world war ii value: see eg morton report para. 25. but unless the contrary is indicated references in this text are to the market values current at the time. 55. morton report, para. 16. 56. supra. n.54 and text. 41 the denning law journal (to £5,00057) in the amount of the statutory legacy payable to a surviving spouse58 would be appropriate59. the committee also made two ancillary proposals in further support of the objective of improving the surviving spouse's position. first, the survivor should be given an option to purchase the matrimonial home at its open market value as at the date of the deceased's death;60 and, secondly, the spouse should be entitled61 to redeem the life interest in half the remaining estate to which (it was proposed) the survivor should continue to be entitled. 62 in cases where the deceased left no issue, the committee recommended a compromise between those63 who favoured giving the whole estate to the survivor;64 and those who thought that the deceased's kin should also benefit. where the deceased died without issue but left a spouse and a parent or sibling of the whole blood, the spouse should take a legacy of £20,000 and half the residue absolutely. the balance of the estate should go to the surviving parent or parents, or (if neither parent survived) to the brothers and sisters of the whole blood.65 the committee did not think the 57. free of death duty and costs; and the survivor would retain the entitlement to the deceased's personal chattels. the recommended increase in the amount of the statutory legacy was substantially more than would have resulted from adjusting the £1 ,000 provided by the 1925 act to take account of general inflation, and was at the upper end of the range of suggestions made by witnesses. indexation which would have justified an increase to £2,000 was evidently a comparatively linle understood concept; and the committee does not seem to have been influenced by it. the bar council (virtually alone) had recommended that the legacy remain unchanged, the spouse's position being improved by conferring a life interest in the whole of the deceased's residuary estate: morton report, para. 17. 58. the rate of interest payable on this statutory legacy was to be reduced from 5 % to 4 %: morton report, paras. 16-22. 59. the statement by lord gardiner in moving the second reading of the family provision bill 1966 [see official report 16 june 1966, col. 202] that the morton committee had "pointed out that the object of the statutory legacy was to enable the widow to buy the house", that the committee said that "£1,000 for this purpose was no use in 1952" and that the proper equivalent, judged in terms of the increase in the price of houses" was £5,000 does not accurately reflect the committee's expressed views [see morton report, para. 10-21] which took account of inflation in house prices as merely one relevant factor. the committee (following the precedent of those responsible for the 1925 legislation) was much more influenced by the pattern of testators' wills. 60. morton report, paras. 23-27. 61. under the administration of estates act 1925 s .48(1) the intestate's personal representatives were empowered to redeem the life interest in accordance with tables they selected; but this procedure was not much used: morton report, para. 32. the committee's proposal (intended to reduce the number of life interests and further to improve the position of the survivor) gave the right to the survivor in accordance with a "simple table ... proportionate to the expectation of life of the surviving spouse" incorporated in the legislation: morton report, para. 32. 62. morton report, paras. 28-32. 63: notably, the council of the law society: morton report, para.34. 64. "this seems rather a striking proposal. it means that the spouse would take the whole estate even if the intestate left a very large estate .... we feel that under such circumstances a childless person, dying intestate, would wish that close relatives ... should take some benefit from the estate, subject always to adequate provision being made for the spouse. it often happens that a large portion of the intestate's estate has been derived from his family and it seems just, therefore, that the family should have an opportunity of sharing in it after the intestate's death. "[morton report, para. 34]. 65. on the statutory trusts defined by administration of estate act 1925, s.47, which also provided for substitution of issue of deceased siblings. 42 intestacy reforms the way things were, 1952 "average individual would want relatives more remote than this to benefit from the estate at the expense of the surviving spouse66 and accordingly recommended that brothers and sisters of the half blood and their issue, should lose the right67 to share in the estate of an intestate who died leaving a surviving spouse.68 the general tenor of the committee's proposals was thus vividly to exemplify what has been described69 as the amputation of the blood stock and of the movement of marriage (as compared with genetic kinship) into the foreground. 70 but the committee was itself conscious71 that the increased provision which it proposed for a surviving spouse might well work injustice in many cases where there were stepchildren by another marriage; and for that reason recommended that the inheritance (family provision) act 1938 should be made to apply to cases of intestacy.72 officials decide british constitutional practice allows ministers to seek advice (whether from bodies such as departmental committees or from their own departmental officials or from others73); ministers74 decide whether to take such advice and whether and when to promote legisla,tion;75 and parliament decides whether to enact the measures placed before it. 66. morton report, para. 36. the surviving spouse was to take the whole estate absolutely if no relatives within the defined class survived. 67. administration of estates act 1925, s.46. 68. morton report, para. 36. such relatives were to retain the right to succeed if there were no surviving spouse. 69. by sundberg, cited by d. bradley, "marriage, family property and inheritance in swedish law" (1990) 39 l.c.l.o. 370. 70. this thesis is persuasively developed by m.a. glendon, the new family and the new property (toronto, 1981). 71. although this was one of the few matters on which the committee found difficulty in reaching agreement 72. the committee's terms of reference were (as has been pointed out: supra. ns. 34 & 35) deliberately restricted to limit the scope of discussion of the 1938 act; and the committee at its first meeting on 9 november 1950 had discussed whether it should seek to have them extended. only john foster kc dissented from the general consensus not to do so: see minutes, pro file lc02/4448. in the event the committee clearly found the restriction on the scope of its enquiry embarrassing; and it suggested, "at the risk of travelling outside our terms of reference" that if the act were to be extended to cover cases of intestacy' 'opportunity might advantageously be found to remove some of the defects which have come to light in the course of' experience of its working (in particular the restrictions imposed by s.i(3) and (4»: morton report, para. 49. moreover, the class of dependants who could apply under the act was restricted for example, an adult son of the deceased's could only do so if disabled; and it is not surprising that the committee thought it would "obviously be necessary" to review the whole of the act closely if it were extended to intestacies, and that it might be thought desirable to enlarge the class of "dependants": morton report, para. 51. in the event, no comprehensive review took place until the law commission undertook the review (second report on family property: family provision on death, law com. no. 61, 1974) which formed the basis of the inheritance (provision for family and dependants) act 1975. 73. in recent years, the practice of taking advice from personal advisers has increased. 74. assuming collective responsibility for cabinet decisions. in practice, crucial decisions will usually be taken by cabinet committees in the present instance the home affairs committee. 75. or whether to block, preserve neutrality (benevolent or otherwise), or actively to support the small number of bills introduced by private members. 43 the denning law journal the relationship between the different actors in this scenario can be subtle: the power of officials to influence matters has been a source of much comment but seems inevitable given their long term involvement in the executive machine. on the other hand, ministers will have declared policies on some matters (albeit rarely on lawyers' law reform) and certainly cannot routinely force through legislation which their own officials support without regard to opinions expressed in either house of parliament. the passage of the intestates' estates act 1952 illustrates the working of these relationships in the context of what appeared to be a bill devoid of almost any political content. 76 • government consultation: not quite so simple after all .. the first stage in the decision taking process was for the lord chancellor's officials to consult with other officials on the morton report's proposals; and, immediately, problems were raised. on one view, the most difficult77 was whether the committee had fully considered the implications of the rule78 that the younger of two persons who died in circumstances rendering it uncertain which had survived the younger should be deemed to have survived. hence, a much increased inheritance might, for example, pass to the family of a young bride killed with her husband in an air crash rather than staying in the husband's family. 79 lord morton candidly told80 coldstream that his committee had never considered the point and that he did not want to do so.81the lord chancellor82 came to agree that legislation should provide that the statutory presumption be nullified for the purposes of intestate succession;83 and the lord chancellor's memorandum to the home affairs committee was settled accordingly. 76. the morton committee had been appointed by, and reported to the labour government's lord chancellor (jowitt: supra., n.18). but that government was defeated at the general election on 25 october 1951 and decisions as to implementation fell to lord simonds, a man of no political experience who was evidently mystified by his appointment by winston churchill (in his last administration). he was a great chancery lawyer, who sadly is now best remembered for his vigorous criticisms of lord denning in the midland silicones case [1962] ac 446,459 ("heterodoxy, or, as some might say, heresy, is not the more attractive because it is dignified by the name of reform"). . 77. raised by the treasury solicitor. 78. law of property act 1925, s.i84. 79. "we had some very hard cases under the present law during the war ... " 80. according to a note endorsed on a letter from coldstream to morton dated 19 november 1951 marked "not to be sent". 81. although the point had in fact been put to the committee by the quain professor of jurisprudence at london university. professor glanville williams. 82. simonds' manuscript note on a minute from dennis dobson dated 26 november 1951: pro file lc02/4457. 83. see now administration of estates act 1925, s.46(3) as added by intestates' estates act 1952, s.i(4). the law commission [distribution on intestacy, law corn. no. 187, 1989, para. 57] consider that a surviving spouse should only inherit if he or she survives the deceased for a period of fourteen days, and the law reform (succession) act 1995 incorporates a provision requiring survival. 44 intestacy reforms the way things were, 1952 another difficulty for the lord chancellor's officials the greatest difficulty84 was in connection with the recommendations relating to the inheritance (family provision) act 1938: the committee had pointed out that there were difficulties caused by restrictive provisions incorporated in that legislation85 but (dennis dobson86 plaintively minuted87) the committee had unfortunately not given any indication of the way in which it thought the act should be amended. 88 when the cabinet's home affairs committee expressed some disquiet89 at t~e implications of the proposals to enhance the spouse's position as they would affect a husband with issue by one marriage who remarried late in life, the lord chancellor explained that' 'it was because of this kind of difficulty" that he proposed amendment of the 1938 act" to enable the courts to intervene in such cases".90 in the light of this discussion it was agreed that a bill be drafted.91 it was thought better that it should be handed to a private member who had a good place in the ballot for private members' bills and lacked any bill of his own rather than being introduced as part of the government's legislative programme. 84. dobson's minute to simonds 26 november 1951, pro file lc02/4457. 85. supra., n.72. 86. he subsequently became successively assistant permanent secretary (1954-1968) and permanent secretary (1968-1977). 87. and it may be thought in view of the determination of the lord chancellor's officials to confine discussion of the 1938 act to the barest minimum: see supra., n.34 somewhat unjustly. 88. simonds minuted that it would be better to have a separate bill dealing with the family provision legislation, "but this might, i understand, make it more difficult to get any bill through": pro file lc02/4457. simonds' manuscript note dated 25 november 1951. in the result, the lord chancellor and home affairs committee accepted the officials' recommendation to retain the rule [inheritance (family provision) act 1938, s.i(i) proviso] that applications be not permitted where the deceased had bequeathed not less than two thirds of his net estate to the surviving spouse and the only other dependant or dependants were a child or children of the suvivor, whilst removing restrictions on the court's powers in ordering provision in the cases with which it had jurisdiction to deal. (the family provision act 1966 finally removed the restriction imposed by the 1938 act so as to avoid the anomaly whereby a spiteful testator might leave a widow two-thirds of the income of his estate in order to prevent her having any right to apply to the court: see official report (hl) 16 june 1966 vol. 275, cols. 203-4. lord gardiner's statement that he did not know whether the retention of the relevant proviso in 1952 "was simply a slip" suggests that his attention had not been drawn to his predecessor's advice to the home affairs committee: see pro file lc02/4451, 28 november 1951, para.8. 89. the morton committee had itself recognised this problem: para.47; and the president of the probate divorce and admiralty division subsequently told coldstream that "very considerable hardship might be caused by the over-riding preference given to the widow" and that "too much may have been sacrificed for the sake of simplicity": merriman to coldstream 5 march 1952, pro file lc02/4457. 90. minutes of home affairs committee, 7 december 1951. as pointed out above [supra. , n. 72 ] , however, the court would only be able to intervene on an application by a "dependant" of the deceased, and accordingly no married daughter or adult son could apply unless disabled. 91. the bill as drafted departed from one recommendation of the morton committee (which had taken the view that there should be no special rules for partial intestacies). it was decided that, in the light of the increased size of the statutory legacy, the spouse should be required to bring any benefit taken under the will (or in exercise of any general power of appointment) into account against that provision. 45 the denning law journal drafting the bill: the difficulties increase ... although it is true that there may be difficulties in securing agreement to broad issues of policy it is often found that these pale into insignificance when those broad issues have to be translated into the precision required by the english tradition of statutory drafting. the intestates' estates act 1952 provides a remarkable example of this phenomenon. what, for example, could be simpler than to draft legislation giving effect to the morton committee's recommendation that a surviving spouse should have an option to purchase the deceased's interest in the matrimonial home? and yet ... how was matrimonial home to be defined? how were the interests of purchasers and creditors to be protected? what was to happen if the survivor were under 21 or of unsound mind? the draftsman did his best but was not satisfied with the result: it is not, of course, the draftsman's job to take views on policy but the draftsman wrote that the difficulties were so great that "the whole of this option" might best be omitted from the bill.92 after all (he wrote) "the committee were luke warm about it particularly, as i read between the lines, the legal members"; and there would be no problem in keeping the house for the widow's occupation where the family was harmonious, and so "one is probably legislating for the cases where either side are ready to take any obstructive point, and this subject fairly bristles with debatable points which the drafting must leave open." it seems clear that issues of policy could not easily be segregated from technicalities; the grant of an option to purchase would 93 "simply encourage old ladies to insist on going on living in houses which were far to large for them and against their real interests' '94. in the result, the officials came to agree that it was impossible to draft legislation to give effect to the proposal, and the bill as first presented to parliament did not seek to deal with the matter. but in the end the practical experience of the solicitors' profession came to the rescue:95 the surviving spouse was to be given the right to require the personal representatives to exercise the "well-tried" powers of 92. a.n. stainton, who subsequently became first parliamentary counsel and (accordingly to the obituary published in the times on 12 november 1988) was responsible for drafting much tax legislation. the obituarist refers to his analytical mind and prodigious intellect, and to that fact that, although he did not suffer fools gladly, "he would at least allow the fool to leave the room before expressing exasperation". for some deeply felt remarks about difficulties encountered in collaboration between some law commission staff and parliamentary counsel, see r. t. oerton, a lament for the law commission (1987) chapter 6, particularly pp.54-6. for comments on the drafting of the 1952 act in the light of experience, see infra. n.100. 93. coldstream to the solicitor-general sir reginald manningham butler 7 march 1952. the draftsman's attempt to produce clauses conferring an option to purchase had been referred to the senior chancery judge, vaisey j. and he had made "the most devastating criticism of the proposal" and advised the lord chancellor to drop it because legislation would do more harm than good. 94. see to the same effect h. hylton-foster's speech on the second reading of the bill: official report (hc) 28 march 1952, vol. 498, col. 1078. 95. see the correspondence between coldstream and horsfall-turner from 13 march 1952. 46 intestacy reforms the way things were, 1952 appropriation96 in respect of the matrimonial home97; and the resultant provisions seem to have given rise to few problems98 in practice.99 the fertile mind of the draftsman found 100 many other difficulties; 101 but a bill was eventually drafted and circulated within whitehall and elsewhere for comment. officials, viewing the bill from their own departmental perspectives, were not slow to accept the invitation.102 some of these comments led to significant 96. administration of estates act 1925, s.141. it was held in lall v. lall [1965] i w.l.r. 1249 that the survivor has, prior to appropriation, no equitable interest in property such as to give standing in a possession actipn brought by registered proprietor; and note the draftsman's concern about the difficulties of deciding how far the morton report's "option" would bind third parties. 97. but if the widow were to be given a right to keep the matrimonial home, should she not also be given a right to keep the family business? an amendment to this effect was successfully moved by barnett janner mp (later baron lanner a solicitor and president of the board of deputies of british jews and himself the son of a small shopkeeper) official report (hc), 24 june vol. cols. 22-4; but a firm stand was taken against what lord mancroft described as a "perfectly horrible clause" [official report (hc), 29 july 1952, vol. 178, col. 390.] as the draft prepared by officials explaining to janner why the clause was to be removed put it, leaving the technicalities on one side, "widows are often not the best judges of their own business capacity": pro file lc02/4452. 98. but see re phelps dec'd [1980] 1. w.l.r. 1501 to the effect that the right could not be exercised where the house was worth more than the amount of the statutory legacy. and note the view of the law commission [law com. no. 187, para.34] that the interpretation put on this provision in robinson v. collins [1975] i w.l.r. 309 (value of house to be calculated at date of appropriation rather than at death) had caused problems. the morton report envisaged that the survivor's right should be to purchase at the death valuation: para. 25. 99. see the discussion in sherrin and bonehill, the law and practice of intestate succession (2nd. ed. 1994. it is to be noted that officials were worried that the exercise of the power might be "catastrophic" in some cases (e.g. where the matrimonial home had been a farmhouse) and that accordingly in certain defined cases the right to require appropriation is not exercisable unless the court is satisfied that doing so would not be likely to diminish the value of other assets or make them more difficult to dispose of: see intestates' estates act 1952, sched.2, para. 2. but it was decided (contrary to tradition) that "the attempt to legislate for every case should be abandoned"; see notes on clauses, pro me lc02/667 i , p.124. 100. unfortunately, he did not identify some problems which arose in practice. the drafting of the 1952 act was criticised by academic writers: see sherrin and bonehill, the law and practice of intestate succession (2nd. ed. 1994); and in the debate on the amending family provision act 1966 the conservative spokesman took the possibly unprecedented step of apologising for the "considerable errors" which were made: see official report (hl) 16 june 1966, vol. 275, col. 210. 101. see in particular his six page letter dated 4 january 1952. amongst the difficulties raised were (i) the application of the rule in allhusen v. whittell (1867) l.r. 4 eq. 295 to the surviving spouse's legacy (ii) the position if the court made an order under the 1938 act on the basis of provision which turn out not to be those made in the will (e.g. where a new will is discovered); (iii) were purchasers to be affected by notice that chattels should have gone to the spouse?; (iv) difficulties which were perceived as likely to arise in relation to the requirement that one spouse be proved to have survived the other. the draftsman's comments caused some irritation to the lord chancellor's officials; in particular, stainton's suggestion that the committee be asked whether they had taken account of the implications of the rule in allhusen v. whittell prompted a great deal of departmental research; but ultimately dobson told the private member to whom the bill had been allotted (sir hugh lucas-tooth: see infra. n.i06) that he was not sure that the problem was quite as difficult as stainton had made it appear "because ... i think one would find that little notice was taken of the rule in allhusen v. whittell": dobson to lucas-tooth 7 january 1952. 102. for example, the postmaster general was concerned that any extension of the inheritance (family provision) act 1938 would have implications on the right given to depositors to nominate national savings accounts and other investments; and his officials were concerned that he should be protected. coldstream robustly suggested to stainton that' 'the best thing to do is to leave this question alone ... " 20 may 1952. the difficulty that a person could wholly defeat the operation of the 1938 act by skilful choice of assets which would fall outside the definition of "net estate" in s.5(1) was later taken by the law society; but no action was taken until the law commission's review [second report on family property: family provision on death, law com. no. 61, 1974] which led to the enactment of inheritance (provision for family and dependants) act 1975, s.8. 47 the denning law journal change; 103but the consultation also revealed doubts about the merits of some of the proposals. in particular, a powerful letter from the president of the probate divorce and admiralty division, 104suggested that too much had been sacrificed for the sake of simplicity and that very considerable hardship might be wrought by the overriding preference given to the widow; and eventually the legislation committee asked the lord chancellor to consider whether an amendment was needed to reduce the degree of preference given by the bill to the second spouse in cases of remarriage after divorce. 105 difficulties do not trouble parliament it was nevertheless decided not to amend the bill further; and its passage through both houses of parliament was skilfully handled by the private members entrusted with its carriage, 106there were in fact a number of serious issues of principle which might have been discussed, but (as the commons spokesman, hylton-fosteri07) wrotelo8 "speed and joviality looked like the easiest way", and in the result the few members who attended the debateslo9 were regaled with accounts of "elderly 103. notably in the method of calculating the amount to be paid by way of redemption of the surviving spouse's life interest: see the notes on clauses, pp.15-19, pro file lc02/6671. following advice from the government actuary a simple scheme for valuation by reference to the cost of a post office annuity was incorporated into the legislation: intestates' estates act 1952, s.2(2). subsequently, the withdrawal of post office annuities required the scheme to be amended; and it is now provided that the capital value is to be reckoned in such manner as the lord chancellor may direct: see administration of justice act 1977, s.28(3) and the tables laid down in the intestate succession (interest and capitalisation) order 1983 (s.1. 1374). 104. merriman to coldstream 5 march 1952, pro file lc02/445i , lord merriman had had a difficult relationship with the department, no doubt in part because of his bitter opposition to the proposals for reform of divorce law and procedure put forward in the reports of the [denning icommittee on procedure in matrimonial causes (1946-7): see p. polden, guide to the records of the lord chancellor's depanment (hmso 1988) pp.106-109. the situation which arose in relation to the intestacy proposals is the more surprising in the light of coldstream's acceptance in 1946 that "no such enquiry ought to be allowed to be started unless we are quite sure that it is one which is likely to have the approval of the head of the division concerned": pro file lc02/3951. 105. minutes of meeting 11 march 1952. 106. it had originally been intended that the bill would be taken through the commons by the barrister conservative mp for hendon south sir hugh lucas-tooth; but he was appointed parliamentary undersecretary at the home office and a substitute had to be found. there was some criticism in the commons that the government was using private members' time for what was in substance a government bill. 107, harry hyltonfoster had been elected conservative mp for york in 1950, and subsequently became solicitor-general (1954-9) and speaker of the house of commons (1964-5). 108, to coldstream 29 october 1952. 109. officials voiced concern about the unrepresentative nature of the debates: the house of commons second reading debate was "a very thin house" with few speakers. (in fact the house was in fact counted out on 28 march, but the second reading was carried "on the nod" in the following week. the committee debate was "very meagre"; and officials regretted that the bill had had so little consideration because there were "many questions of principle" on which any government would want a free vote (e.g. the size of the statutory legacy). the only point of principle urged with any conviction was by charles fletchercooke the barrister conservative mp for darwen who successfully objected to the further discrimination proposed by the morton committee against relatives of the half blood: the bill was amended to allow b~others and sisters (and uncles and aunts) of the half-blood to retain their right to succeed in default of any spouse, issue, or parent of the deceased, ranking after relatives of the whole blood in the same degree. 48 intestacy reforms the way things were, 1952 gentlemen who marry little blonde creatures much younger than themselves in the autumn of their days" 110 and other witticisms. 111 the significance of the 1952 legislation the intestates' estates act 1952 may, at first sight seem to have been of little long term significance; but in reality by emphasising the primacy to be accorded to the claims of a surviving spouse it constitutes a decisive landmark in the evolution of the law. the act is also significant in a number of other respects: for example, for the first time in english statute law it recognised the family home as an asset which deserved special protection. perhaps of even greater significance was the acceptance of the principle that, since no general code for intestate distribution could achieve satisfactory results in every case, the court should be given power to vary the statutory provisions if they failed to make reasonable provision for the deceased's dependants. this paper has, however, been primarily concerned with the process whereby the legislation came to be enacted rather than with the merits of change in the substantive law: and in this respect the following points may be made. (i) preparing public opinion. the morton committee is a classic example of the technique of preparing the way for legislation by establishing a comparatively broadly based group of people from outside government to make recommendations. the use of the committee technique is all the more striking since it seems that there was little dispute that the provision made by the 1925 legislation for the surviving spouse of an intestate had become inadequate. the morton committee was the last occasion on which this technique was used in this context: in 1966, government felt sufficiently confident to decide on reforms without formal outside consultation; 112 whilst the most recent proposals have been 110. h. hylton-foster, official report (he) 28 march 1952, vol. 498: col. 1083. ill. the conservative peer, lord mancroft, (at the time a member of the bar council), was entrusted with the carriage of the bill in the house of lords. his light-hearted speech on the second reading debate in the house of lords was evidently skilfully attuned to the mood of the house. the administration of estates act had, he said, been drafted by the late sir benjamin cherry, and contained a table of' 'a complexity and confusion equal only to that in the table of affinity in the prayer book, concluding with certain nefarious characters which could have stepped only from the pages of saki or p. g. wodehouse namely, aunts of the half-blood. i never met a case of a man being disinherited by a half-blooded aunt, but presumably sir bejamin cherry did not want to take any risks!" [official report (he) 29 july 1952 vol. 178, col. 390]. a humorous reference to the possibility that lord chancellor jowiu [see supra. n.18] might solve his housing problems by moving into the vicarage at bray offended jowiu to the point that he subsequently always left the lords' chamber whenever mancroft spoke [heuston, supra. n.18 p.80]; but mancroft's parliamentary skills were subsequently put to good effect in securing the enactment of the marriage (enabling) act 1960 which rationalised the rules governing the prohibited degrees of marriage. 112. the newly established law commission was however informally consulted by the lord chancellor: official report (hl) 16 june 1966, vol. 275, col. 203. 49 the denning law journal made by the law commission, a body composed exclusively of professional lawyers.li3 one advantage of the committee technique is to give notice that issues on which people may have strong views are being discussed; and thereby to some extent to familiarise the community with the proposals which are being considered. it may be that some recent experience notably with the child support act 1991 supports the view that comparatively open discussion carried out over a period of time has some value in accustoming the community to what is proposed. (ii) parliament and law reform. the passage of the intestates' estates act 1952 through parliament demonstrates the weakness of the parliamentary process as a means of ventilating serious issues in which there is no particular party interest. it was difficult to engage the interest of mps; and the concern of those with carriage of the bill was inevitably to minimise the possibility of matters being pursued in a way which could jeopardise the prospects of the bill becoming law. 114 study of the parliamentary process on this and other occasions may be thought to give further weight to the arguments in favour of a special procedure for dealing with technical measures of law reform 115 and engender scepticism about the wisdom of the decision of a majority of the house of lords in pepper v. hartl16 to allow reference to the official report of proceedings in parliament in certain circumstances. (iii) the technicality of law reform. above all, study of the background to the 1952 act reveals the high level of technicality involved even in legislation which might be thought, at first impression, to be comparatively simple and the major part in that process which is played by the parliamentary counsel. who, for example, could have predicted that the morton committee's proposal that a surviving spouse should be given the option to purchase the matrimonial home would raise so many technical problems that it was decided it should be abandoned?ll? 113. family law, distribution on intestacy (law com. no. 187, 1989). the law commission did, in accordance with its usual practice, engage in a fairly wide consultation exercise: and on this occasion (unusually) it did rely on the results of a survey of public opinion. 114. for a further remarkable example see s.m. cretney, "the forfeiture act 1982: the private member's bill as an instrument of law reform" (1990) 10 ox j.l.s. 289. 115. see the discussion of this issue in the law commission's twenty-eighth annual report 1993 (law com. no. 223, paras. 1.11-1.21.). 116. [19931 a.c. 593. 117. the fact that an alternative was adopted demonstrates that the executive is not all-powerful; and that if a particular aim has sufficient informed support a government will find difficulty in resisting suggestions that some technique be found to achieve it. 50 intestacy reforms the way things were, 1952 (iv) not for all time, but for a decade or two? finally, the history of the 1952 act demonstrates that legislation of this kind has only a limited life expectancy. leaving aside the rapid inflation of the sixties and seventies which led to what would at one time have been thought to be the constitutionally higwy objectionable decision to leave the fixing of intestate succession to the virtually uncontrolled discretion of the government some of the problems which could be swept under the carpet in 1952 (notably the conflict of interest which may arise when a surviving spouse is not the parent ofthe intestate's children) have, half a century later, come to assume a degree of importance which can no longer be ignored. the fact that the law commission's recent report on distribution on intestacy fails adequately to grapple with this issue has led inevitably to the commission's proposals being rejected,i18 118. law com. no. 187 (1989). some of the reforms recommended by the law commission in that report are to be given effect by the law reform (succession) act 1995. for a discussion of the main issue of principle see s. m. cretney, "reform of intestacy: the best we can do?" (1995) iii lqr 77; and note the second reading debate on the law reform (succession) bill: official report (hl) 13 february 1995, vo1.561, co1.502. 51 151 denning law journal 2020 vol 32 p 151-173 beneficial ownership of the family home: a comparative study of english and australian constructive trusts mark pawlowski * james brown** * barrister, professor of property law, school of law, university of greenwich, e-mail: m.pawlowski@greenwich.ac.uk ** barrister, reader in law, aston university, e-mail: j.p.brown1@aston.ac.uk 1 pettit v pettit [1970] ac 777 (hl) and gissing v gissing [1971] ac 886 (hl). abstract the aim of this article is to review and critically analyse the english law relating to common intention constructive trusts in the context of the family home. in particular, it seeks to show how the english courts have addressed the question of establishing and quantifying the parties’ beneficial shares in both sole and joint ownership cases. the writers also seek to compare the english approach with the way in which such questions have been answered by the australian courts. the primary purpose of this comparison is to consider what lessons (if any) can be learnt from the australian model. key words: family home, constructive trust, beneficial ownership, common intention, presumption of equality, single regime, composite enquiry introduction much of english law regarding the imposition of a constructive trust in relation to the family home has developed in the context of sole ownership cases where legal title to the property is vested in one of the parties. in these cases, considerable confusion has persisted amongst the judiciary regarding the correct test to be applied in establishing beneficial entitlement (the acquisition question) and the method by which such entitlement should be assessed (the quantification question). in terms of acquiring a beneficial share, the house of lords, in two landmark cases1 decided in the early 1970s, clarified the previous law by adopting a test based on common intention and detrimental reliance. these cases have provided the foundations for determining beneficial entitlement in single ownership cases under english law. what followed, however, was lord denning’s brief foray into the realms of the ‘new model’ constructive trust where an attempt was made to steer the law in a new direction by rejecting the requirement of a common intention in favour of a more 152 beneficial ownership of the family home: a comparative study of english and australian constructive trusts robust notion of ‘doing justice’ between the parties.2 the ‘new model’ was ultimately abandoned with the english courts returning to orthodoxy and the common intention constructive trust culminating in another landmark house of lords’ ruling3 in which the two categories of constructive trust (express and inferred) were firmly resurrected together with the requirement of detrimental reliance in the form of financial contributions referable to acquisition of the property. the approach to assessment of the parties’ respective shares also met with a divergence of judicial views with the english courts favouring initially an ‘arithmetical’4 and later a ‘fairness’5 approach to the calculation of beneficial interests. ultimately, the house of lords6 opted for a ‘holistic’ test requiring an outcome which reflects what the parties must have intended based on a wide range of factors relating to their ownership and occupation of the property. the decision in stack v dowden7 was the first of its kind addressing specifically the question of a beneficial claim in the context of joint ownership. the house of lords essentially adopted the approach taken in the single ownership cases in addressing both the question as to when an altered common intention comes into existence following initial acquisition of the property and how that altered intention should be quantified. commonwealth jurisdictions, on the other hand, such as australia, canada and new zealand have taken a more robust approach and moved away from the juristic confines of the express or inferred common intention. in new zealand, beneficial entitlement has been dependent on the parties’ ‘reasonable expectations’. in formulating these expectations, the courts have considered the degree of sacrifice by the claimant, the value of his/her contributions compared to the value of the benefits received and any property arrangements the parties may have made themselves.8 the canadian courts, on the other hand, have adopted the concept of ‘unjust enrichment’ to justify intervening with property rights. under the doctrine, a constructive trust will be imposed where the defendant has acquired an enrichment, the claimant has suffered a corresponding deprivation and there is no justifiable reason permitting the enrichment. in order for the doctrine to apply, however, the circumstances of the case must indicate that it would be unjust for the defendant to retain the benefit of the enrichment. 2 see, eves v eves [1975] 1 wlr 1338, 1341; binions v evans [1972] ch 359; cook v head (no 1) [1972] 1 wlr 518; hussey v palmer [1972] 1 wlr 1286. 3 lloyds bank plc v rosset [1991] 1 ac 107 (hl). 4 see, springette v defoe [1992] 2 flr 388, where a strict mathematical calculation of the parties’ respective financial contributions was adopted as the basis for a resulting trust. 5 see, oxley v hiscock [2004] 2 flr 669 (ca). 6 stack v dowden [2007] 2 ac 432 (hl). 7 [2007] 2 ac 432. 8 see gillies v keogh [1989] 2 nzlr 327. the denning law journal 153 whilst both these doctrines offer credible alternatives to the common intention constructive trust, they are not, for the purpose of this article, a useful comparison with the english approach. the english courts have consistently rejected the notion of unjust enrichment as an overarching doctrine in family ownership cases which makes the likelihood of its adoption (as an alternative to the common intention constructive trust) highly unlikely. the new zealand’s notion of ‘reasonable expectations’ is also far removed from the english concept of common intention and there is also no suggestion that the english courts would adopt such a model. it is apparent also that new zealand legislation now provides for a presumption of equal entitlement between parties disputing beneficial entitlement to the family home.9 what follows, therefore, is a comparative analysis of the english and australian approach by reference to case law in both jurisdictions. it should be noted, however, that, like the new zealand case law, the australian decisions relevant to determining the beneficial entitlement of a de facto partner have been superseded by legislation in the form of the introduction of a new part viiiab to the family law act 1975 in 2008.10 the new part viiiab now deals with de facto property disputes between heterosexual and same sex partners in all states and territories (other than western and south australia) from 1 march 2009. the legislation has, therefore, substantially changed the australian court’s approach to such disputes, particularly by introducing broader provisions for property division and maintenance along identical lines for married couples already in existence under part viii of the 1975 act. however, the doctrine of unconscionability, which pervades the australian case law, continues to apply to family relationships (for example, parents and children) other than married or de facto couples. the doctrine also remains relevant in cases where a family court is determining property rights as between such parties and a third party under its current jurisdiction. the english context (1) single ownership cases the acquisition hurdle in lloyds bank plc v rosset,11 lord bridge identified two routes by which a non-legal owner may acquire an equitable interest in the property on the basis of a 9 see ss.11–15 of the property (relationships) act 1976, as amended (with effect from february 2002) by the property (relationships) amendment act 2001. in effect, unmarried couples (including same-sex partners) are treated in the same way as married couples upon the breakdown of their relationship. 10 see, the family law amendment (de facto financial matters and other measures) act 2008. 11 [1991] 1 ac 107 (hl). 154 beneficial ownership of the family home: a comparative study of english and australian constructive trusts constructive trust. the first requires evidence of some express understanding between the parties ‘however imperfectly remembered and however imprecise their terms may have been’.12 if that is established, the next stage is for the claimant to show that he (or she) acted to their detriment in reliance upon this understanding. the second route identified by lord bridge applies to situations where there is no express understanding as to the parties’ common intention so that the court ‘must rely entirely on the conduct of the parties both as the basis from which to infer a common intention to share the property beneficially and as the conduct relied on to give rise to a constructive trust’.13 in this situation, lord bridge concluded that direct contributions to the purchase price (whether initially or by payment of mortgage instalments) would readily justify the inference necessary for the creation of a constructive trust and that ‘anything less’ would be insufficient. despite these observations, the high court in le foe v le foe14 subsequently ruled that indirect financial contributions can give rise to an inferred common intention – the wife’s payments for general outgoings, which enabled the husband to pay the mortgage instalments, were held to warrant a half-share in the property. indeed, in abbott v abbott,15 baroness hale confirmed that the law had ‘moved on’ since rosset and reiterated the principle that ‘the parties’ whole course of conduct in relation to the property must be taken into account in determining their shared intentions as to its ownership.’16 the point was also confirmed subsequently in stack, where lord walker expressly doubted whether lord bridge’s observation ‘took full account of the views . . . expressed in gissing’.17 his lordship noted that this observation had ‘attracted some trenchant criticism’ from academics as potentially productive of injustice. significantly, his lordship felt that, regardless of whether lord bridge’s observation was justified in 1990, the law had now moved on. the quantification question in midland bank plc v cooke,18 waite lj dealt specifically with the issue of how beneficial entitlement should be quantified in single ownership cases. his lordship concluded that when determining what proportions the parties must be 12 lloyds bank plc v rosset [1991] 1 ac 107, 132, per lord bridge. 13 ibid 133. 14 [2002] 2 flr 970. 15 [2007] ukpc 53 (pc). 16 [2007] ukpc 53, at [19], per baroness hale. 17 [2007] 2 ac 432, at [26]. 18 [1995] 4 all er 562, (ca). the denning law journal 155 assumed to have intended for their beneficial ownership, ‘the duty of the judge is to undertake a survey of the whole course of dealing between the parties’.19 this enabled his lordship to consider a number of factors relevant to the parties’ ownership and occupation of the property apart from just financial contributions to the purchase price or the payment of mortgage instalments – in particular, the fact that the claimant undertook several and joint liability to repay a charge which was taken out for the benefit of her husband’s business, caring for the children and paying household bills, and the maintenance and improvement contributions she made to the property. in the light of all these factors, his lordship concluded that ‘one could hardly have a clearer example of a couple who had agreed to share everything equally’.20 this holistic approach to quantification was followed in drake v whipp,21 where the court of appeal again looked at the parties’ entire course of conduct in determining their respective shares in the property. peter gibson lj concluded22 that the court should not be limited to considering only the direct financial contributions made by the parties, but should also take into account the reason for acquiring the property, the parties’ labour, and that they had financed the property’s conversion out of a joint bank account. the ensuing decision in oxley v hiscock23 took things one step further. here, chadwick lj held that the correct test for determining the quantum of each party’s share was what the court considered ‘fair’ having regard to the parties’ whole course of conduct. in this sense, his lordship side-stepped the fiction of inferring a common intention as to the quantification of shares, adopting instead a judicial determination based on fairness. such an approach, however, has not been without its critics and the notion that the court is free to impose its own sense of fairness on the parties (whatever their common intention) has not met with subsequent judicial approval.24 (2) joint ownership cases the presumption of equality the landmark decision in stack concerned the property interests of an unmarried couple who had purchased a property in joint names. because the parties held the 19 ibid 574. 20 ibid 576. 21 [1996] 1 flr 826, (ca). 22 ibid 831. 23 [2004] 3 wlr 715. 24 see stack v dowden [2007] 2 ac 432, (hl). 156 beneficial ownership of the family home: a comparative study of english and australian constructive trusts legal title in joint names, the first stage in establishing a constructive trust, namely, the requirement of an express or inferred common intention had been satisfied. what, therefore, needed to be determined was the extent of mr stack’s interest in the property. in the court of appeal,25 chadwick lj awarded mr stack a 35 per cent share and ms dowden a 65 percent share of the property. in reaching this conclusion, his lordship referred to his previous ruling in oxley v hiscock,26 where he had applied a test of ‘fairness’ in quantifying the parties’ respective shares. the house of lords, however, disagreed with this approach adopting instead a ‘holistic approach’ to quantification which involved a ‘search . . . to ascertain the parties’ shared intentions, actual, inferred or imputed, with respect to the property in the light of their whole course of conduct in relation to [the property]’.27 in other words, the search was still for the result which reflected what the parties must, in the light of their conduct, be taken to have intended and not what the court itself considered a fair or just outcome. in order to determine whether the parties intended their beneficial interests to be different from their legal ownership, baroness hale provided a non-exhaustive and wide-ranging list of factors relevant to determining the parties’ common intention. in the result, however, the house of lords agreed that ms dowden’s equitable share should remain at 65 per cent. in several cases following stack, however, the courts have upheld the presumption of equality. in fowler v barron,28 for example, the judge at first instance quantified the parties’ beneficial interests in accordance with resulting trust doctrine. by concentrating solely on the parties’ financial contributions, the judge held that the property belonged beneficially to mr barron. the court of appeal, however, disagreed reiterating that stack had clearly stated that, in the case of joint owners, the parties’ respective shares ought to be quantified in accordance with constructive trust principles. the fact that miss fowler had made no financial contribution to the purchase of the property did not disentitle her to an equal beneficial share. moreover, the trial judge’s decision to focus solely on the parties’ financial contributions went wholly against the guidance laid down in stack – where the legal title is held in joint names, the starting point is always that the parties intended to own the beneficial interest jointly in line with the principle that equity follows the law. any secret intention that mr barron may have had in not wishing to share equitable ownership with his partner did not provide the evidential basis for rebutting the presumption of equality. a common intention, in 25 [2004] ewca civ 546. 26 [2004] 3 wlr 715, (ca). 27 stack v dowden [2007] 2 ac 432, at [60], per baroness hale. 28 [2008] ewca civ 377 (ca). the denning law journal 157 this context, could only mean a shared (and communicated) common intention between the parties. the decision to uphold the presumption of equality in fowler may seem somewhat odd given that mr barron had financed the deposit, paid the household bills and the balance of the purchase and acquisition cost, used the proceeds of sale of this own flat to pay the balance and also met the mortgage repayments from his own pension. indeed, his financial outlay was not far removed from that of ms dowden in stack. this apparent inconsistency did not go unnoticed in fowler itself – arden lj commented that the decision may be criticised because ‘it may leave miss fowler better off than a cohabitee who contributes (say) 20 per cent of the purchase price’.29 what the case demonstrates, therefore, is that the constructive trust model put forward in stack provides women with the opportunity to gain an equal share in the family home even though they have not contributed as much as their male partner in terms of financial contributions. this initial share, however, is still ambulatory and may be subject to change where later evidence is adduced to show a contrary intention by reference to a significant disparity in mortgage repayments or substantial capital improvements to the property. the burden, however, on a person arguing against equality is high and it will only be in exceptional circumstances that the presumption of equality will be rebutted. defining the domestic context the courts have also faced a fresh challenge in deciding whether the stack principles apply outside of the domestic context. thus, where the parties have entered into a commercial venture, the post-stack case law has seen a return to an arithmetical approach to the assessment of the parties’ beneficial shares. in laskar v laskar,30 the court of appeal was required to resolve a dispute between a mother and daughter. whilst the facts prima facie might have led one to predict that the outcome would have been determined on stack principles, the court proceeded to distinguish the case and applied resulting trust theory instead in order to resolve the extent of the parties’ beneficial ownership. whilst in stack the parties were a cohabiting couple, they had children together and the property had been purchased with the intention that it was to be the family home, the mother and daughter in laskar did not live in the property together, which had been purchased essentially as an investment. whilst, no doubt, the relationship between the parties fell within the domestic category because of their familial relationship, 29 ibid at [47]. 30 [2008] ewca civ 347 (ca). 158 beneficial ownership of the family home: a comparative study of english and australian constructive trusts the purchase of the house was essentially a commercial venture which rendered the stack approach inappropriate. accordingly, the court reverted to the resulting trust approach and awarded the daughter only 33 percent of the beneficial share. it has been subsequently held, however, by the privy council in marr v collie31 that a resulting trust approach will not necessarily apply in all cases involving investment property. much will still turn on the parties’ common intention in deciding whether to apply a resulting trust solution or, alternatively, an approach based on constructive trust principles. although the decision is only of persuasive force, it is likely to be followed by the english courts as clarifying the scope of the stack presumption in case where investment property is purchased in joint names by parties in a domestic relationship. apart from the investment context, it is now also clear that the resulting trust will be the preferred option where there is a lack of close relationship between the parties. here too the courts have excluded the determination of beneficial ownership under a common intention constructive trust and applied an arithmetical calculation of the parties’ respective beneficial shares despite the domestic context of the transaction.32 imputing a common intention another interesting development has been the potential abandonment of the requirement of detrimental reliance in joint ownership cases. the absence of this element in the post-stack judgments is arguably puzzling since the need for a party to have acted to their detriment or to have significantly altered their position in reliance upon a common intention was, as we have seen, a key element in lord bridge’s two-stage test in rosset.33 it is apparent that cases decided post-stack make little or no reference to the requirement of detriment and, arguably, this absence may not be unintentional. since in joint ownership cases the parties do not need to establish a common intention to share the property (because this intention is already presumed at the time of acquisition), it is submitted that the absence of this requirement coupled with the court’s omission to consider detriment has, in effect, created a one-stage enquiry into the extent of the parties’ respective beneficial interests in the property based simply on an assessment of the parties’ respective dealings (financial and otherwise) post-acquisition. 31 [2017] ukpc 17 (pc). 32 see, wodzicki v wodzicki [2017] ewca civ 95 (ca); gallarotti v sebastinaelli [2012] ewca civ 865, (ca). 33 [1991] 1 ac 107 (hl). the denning law journal 159 in jones v kernott,34 the supreme court (lord walker and lady hale, giving the leading joint judgment), reiterated the principle, enunciated in stack, that, in the case of a purchase in joint names, the presumption of joint ownership in law and equity will prevail in the absence of contrary intention at the time of purchase or following acquisition of the property. the underlying rationale of the presumption was not so much that ‘equity follows the law’ but that the parties, in acquiring a house in joint names, have indicated an ‘emotional and economic commitment to a joint enterprise’ – there was also the practical difficulty of analysing respective contributions over long periods of cohabitation which favoured a presumption of equality.35 more significantly, however, it was open to a court to impute an intention where it was apparent that beneficial ownership was to be shared in some proportion, but the parties had given no indication themselves as to how their entitlement was actually to be shared. in these circumstances, the court had no choice but to give effect to the parties’ common intention by determining what would be a fair share in all the circumstances.36 fairness per se, however, was clearly not the criterion in assessing entitlement – on the contrary, the task of the court was to deduce what the parties ‘as reasonable people, would have thought at the relevant time’ having regard to the whole course of dealing in relation to the property.37 in other words, the initial task of the court was to seek to identify the parties’ actual intentions (to be deduced objectively from their own words and conduct). if that was possible, it would clearly be wrong for the court to disregard those intentions in favour of a solution which the court considered to be fair and just. the court of appeal ruling in graham-york v york,38 however, has suggested that looking at ‘the whole course of dealing’ does not mean looking at everything related to the parties’ relationship (despite the seemingly broad and non-exhaustive range of factors indicated in stack), but just at what is relevant specifically ‘in relation to the property’. this means, of course, that the court’s attention is focused inevitably on financial contributions, whether they be towards the initial purchase, household utilities, mortgage instalments or subsequent capital improvements to the property. in practical terms, therefore, the courts appear to be applying a form of ‘mutated’ resulting trust in these cases and, at the same time, characterising the result as a legitimate consequence of the wider enquiry undertaken under the 34 [2011] uksc 53 (sc). 35 [2011] uksc 53, at [19]–[22]. 36 ibid at [32]. 37 ibid at [33]. 38 [2015] ewca civ 72, (ca). see further m pawlowski, ‘imputation, fairness and the family home’ (2015) 79 conv. 512. 160 beneficial ownership of the family home: a comparative study of english and australian constructive trusts stack principles. in graham-york itself, a single ownership case, the parties cohabited for over 33 years until the male partner’s death, during which time the female claimant brought up the couple’s daughter, made financial contributions to the household expenditure and a small contribution to the payment of the mortgage debt on the property. despite this, the court of appeal declined to impute to the parties a common intention of equal beneficial ownership preferring instead to focus on financial contributions as governing the assessment of the claimant’s interest in the family home. the result was a modest award of only a 25 per cent share in the net proceeds of sale after discharge of the mortgage debt affecting the property. (3) a composite enquiry? the wider significance, however, of imputing what the parties intended by reference to all the circumstances suggests that the whole exercise of determining beneficial entitlement (at least so far as joint ownership cases are concerned) condenses essentially into just one fundamental question focusing on the parties’ shared intentions by reference to an examination of all the relevant circumstances. significantly, according to baroness hale in stack, these circumstances include any advice or discussions at the time of transfer (i.e., the equivalent of express discussions pertinent to finding an express common intention in lord bridge’s first category constructive trust in rosset) as well as how the purchase was financed both initially and subsequently (i.e., the equivalent of financial contributions relevant in determining whether an inferred common intention exists in lord bridge’s second category). such a composite enquiry, therefore, subsumes not only all aspects of the acquisition question (including the issue of detriment), but also resolve the question of quantification because the same list of specific factors used to address entitlement would also appear to dictate (and ultimately resolve) the extent of the beneficial shares. such an approach would, of course, mark a significant move away from the rosset scheme in favour of a much simplified composite test for the determination of the parties’ common intention regarding ownership of their home (either at time of purchase or subsequently) by reference to a broad range of factors which was not limited to just their financial contributions. the intriguing question, therefore, is whether the english courts will be prepared to go down this route in the future and put aside lord bridge’s two-stage enquiry in preference for a composite enquiry as to the parties’ common intention as providing the answer to both whether the claimant has established an entitlement to share beneficially in the property and also (at the same time) as a means of identifying the precise extent (or quantum) of each party’s respective shares. the denning law journal 161 until recently, the courts have continued to determine beneficial entitlement in single ownership cases in the traditional way by reference to the dual rosset hurdle of (1) showing that there was a common intention that the claimant should have some share in the property; and (2) assessing the actual extent or quantum of that share.39 significantly, however, a recent high court decision involving single ownership appears to have shifted away from this traditional approach in favour of a more composite analysis in determining beneficial ownership in line with the cases where the property is purchased in joint names. in amin v amin,40 nugee lj, whilst acknowledging that there is no presumption of joint beneficial ownership where the family home is put into the name of one party only, accepted that the parties’ common intention had to be deduced objectively from their conduct. his lordship stated:41 . . . it seems to me that that the exercise . . . envisaged is similar in a sole name case to that in a joint names case. in each case what needs to be found to displace the presumption that equity follows the law is a common intention that beneficial ownership should be something different from legal ownership; and (save for the case where there is evidence of express discussions as referred to by lord bridge in lloyds bank v rosset) that is to be deduced objectively from their conduct. and more significantly:42 i accept that in strict theory one can distinguish between two different questions, namely (i) was there a common intention that the beneficial ownership should be something different from the legal ownership and (ii) if so, what is the appropriate quantification. . . . but i do not think the two stages can always be neatly distinguished. . . . lord walker and lady hale [in jones v kernott] say that examples of the sort of evidence that might be relevant to the drawing of inferences on the first question can be found in stack v dowden at [69]. there lady hale said: ‘many more factors than financial contributions may be relevant to divining the parties’ true intentions. 39 see, for example, morris v morris [2008] ewca civ 257; thompson v humphrey [2009] ewhc 3576 (ch); geary v rankine [2012] ewca civ 555; aspden v elvy [2012] ewhc 1387 (ch); cps v piper [2011] ewhc 3570 (admin): capehorn v harris [2015] ewca civ 955; dobson v griffey [2018] ewhc 1117. 40 [2020] ewhc 2675 (ch). 41 ibid at [32]. 42 ibid at [33]. 162 beneficial ownership of the family home: a comparative study of english and australian constructive trusts his lordship concluded that ‘if one stands back from the detail, the broad question is always: what did the parties intend?’ in his lordship’s words:43 once one allows the parties’ intention to be inferred from their conduct, it seems to me to make no sense to try and make a sharp divide between evidence that enables an inference to be made as to their common intention that the beneficial interests should not follow the legal ownership, and evidence that enables an inference to be made as to what they intended those beneficial interests to be. those questions are necessarily bound up together. in my judgment the [trial judge] was right to say that financial contributions and many other factors could enable the court to decide not only what shares the parties intended, but also whether there was a common intention at all that the sole legal owner should not be the sole beneficial owner. it remains to be seen, however, whether this approach finds universal favour at appellate level. the australian context (1) the baumgartner decision in essence, the unconscionability doctrine, which applied in australia to de facto partners prior to the introduction of part viiiab to the family law act 1975, operates to impose a constructive trust where the legal owner makes an ‘unconscionable attempt . . . to retain the benefits of the other party’s contributions to the relationship’.44 unlike the common intention constructive trust, the doctrine operates regardless of the parties’ intentions: viewed in its modern context, the constructive trust can properly be described as a remedial institution which equity imposes regardless of actual or presumed agreement of intention (and subsequently protects) to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principles.45 43 ibid at [34]–[35]. 44 l young and g monahan, family law in australia (7th edn, lexisnexis butterworths 2009) 703. 45 muschinski v muschinski (1985) 160 clr 583, at [6], per deane j. the denning law journal 163 whilst the origins of the doctrine can be found in muschinski v dodds,46 it is the case of baumgartner v baumgartner 47 which developed its applicability. the case concerned the division of property between an unmarried couple. from the beginning of their relationship, the appellant had given her earnings to the respondent. in effect, the parties ‘regarded this as a pooling of resources’.48 the pooled fund was used to pay the mortgage instalments on a property which had been purchased by the respondent in his sole name, as well as other outgoings and the parties’ living expenses. following the termination of the relationship, the appellant claimed that she was entitled to a beneficial interest in the property under a common intention constructive trust. the high court of australia, however, rejected the need for a common intention49 and allowed equitable relief on the basis of unconscionability. on the facts, the high court regarded the parties’ arrangement to pool their earnings as ‘one which was designed to ensure that their earnings would be expended for the purpose of their joint relationship and for their mutual security and benefit’.50 in those circumstances, the appellant’s exclusive claim to the property amounted to unconscionable conduct that attracted the imposition of a constructive trust. on the issue of quantification, the high court’s starting point was the equitable maxim that ‘equity favours equality’. mason cj (with whom wilson and deane jj agreed) observed that ‘in circumstances where parties have lived together for years and pooled their resources, there was much to be said for the view that they should share beneficial ownership equally, subject to an adjustment to avoid any injustice’.51 significantly, gaudron j opined that ‘other considerations may also be relevant’52 in determining the extent of the parties’ shares, in particular, ‘non-financial contributions should be taken into account’53 – a reference, no doubt, to domestic and home care services. in the result, the high court felt obliged to adjust the parties’ initial equal shares so as to give rise to a 46 (1985) 160 clr 583. 47 (1987) 164 clr 137. 48 ibid at [14], per mason cj, wilson and deane jj. 49 australian courts previously favoured the common intention constructive trust: see, allen v snyder [1977] 2 nswlr 685. it was still, however, appropriate to argue common intention and unconscionability in the alternative as a means of establishing equitable relief: see, for example, carruthers v manning [2001] nswsc 1130, (supreme court of new south wales). 50 (1987) 164 clr 137, at [35], per mason cj, wilson and deane jj. 51 ibid at [37], per mason cj, wilson and deane jj. 52 ibid at [8], per gaudron j. 53 ibid at [6]. 164 beneficial ownership of the family home: a comparative study of english and australian constructive trusts 55/45 split in favour of the respondent. although ‘practical equality’ was to be favoured, some adjustment was unavoidable where the parties’ respective contributions were significantly different. (2) non-financial contributions a number of early cases54 following baumgartner demonstrated a marked reluctance to accept non-financial contributions as playing any significant role in determining the imposition of a constructive trust in the context of a de facto relationship. such contributions were taken into account only when combined with contributions of a strictly financial nature. the first notable case to widen the principles laid down in baumgartner was parij v parij.55 the parties were unmarried and had been together in a de facto relationship for 17 years. at first instance, the woman’s claim to various assets (including two houses, a boat and car) owned by her male partner failed.56 the trial court held that, as she had made no direct financial contribution to the acquisition of these assets, she was not entitled to any interest in them. on appeal, the supreme court of south australia held that the court had erred in applying a too narrow test in rejecting the claimant’s argument for a constructive trust. in line with baumgartner that ‘other considerations may also be relevant’,57 the supreme court ruled that the claimant’s role as homemaker and caregiver should be seen as an indirect contribution to the acquisition of the assets. in contrast to baumgartner, ‘the parties did not pool their resources in any formal sense’58 nor did they operate a joint bank account. nevertheless, the parties contributed to and discharged different aspects of family expenditure throughout their relationship. the absence, therefore, of any formally pooled resources did not prevent the court from finding that the claimant had established a beneficial interest 54 see, for example, green v green (1989) 17 nswlr 343, bennett v tairua (1992) 15 fam lr 317, (supreme court of western australia); bryson v bryant (1992) 29 nswlr 188, (new south wales court of appeal); harmer v pearson (1993) 16 fam lr 596; booth v beresford (1994) 17 fam lr 147, (supreme court of south australia) and w v g (1996) 20 fam lr 49, (supreme court of new south wales). 55 [1997] 72 sasr 153, (supreme court of south australia). 56 by contrast, her claim to the property which had been purchased in joint names succeeded, giving her an equal share regardless of the unequal contributions made by the parties. 57 (1987) 164 clr 137 at [8], per gaudron j. 58 [1997] 72 sasr 153, per debelle j. the denning law journal 165 in the disputed assets59 – ‘it would be unconscionable now to deny her such an interest in those assets as represent the worth of her substantial indirect contribution to them’.60 the court’s departure from recognising only pooled financial resources (in the formal sense) demonstrates an obvious willingness to broaden the range of financial arrangements as determinative of a party’s beneficial entitlement. this was not, however, the case in carruthers v manning,61 where the claimant sought a beneficial share in property purchased by the defendant prior to the commencement of the parties’ cohabitation. the claimant alleged that she had made unquantifiable non-financial contributions to the parties’ relationship in her role as de facto wife and homemaker. with regard to financial contributions, she maintained that she had deposited some of her earnings in the defendant’s bank account. at first glance, the decision in parij may have led one to predict that the claimant would have acquired an interest in the property (albeit a small one, given that the parties’ relationship lasted only 17 months) based on a pooling of resources. however, the significant disparity in the parties’ financial contributions led the supreme court of new south wales to conclude that it was not unconscionable for the defendant to retain the sole equitable ownership of the property.62 as to non-financial contributions, these had to be given proper weight in the circumstances of the particular case. indeed, the short duration of the parties’ relationship proved fatal to the claimant’s claim – her domestic contributions were characterised as being made ‘purely for reasons of love and affection’ – a reason ‘the courts have been reluctant to recognise as being sufficient to give rise to a constructive trust’.63 (3) proof of a joint endeavour the decision in lloyd v tedesco64 marked another significant development in the evolution of the baumgartner ruling. in the supreme court of western australia,65 miller j opined that ‘proof of the joint endeavour requires proof of an actual 59 the pooling of resources was not an absolute requirement in every case: see, hibberson v george (1989) 12 fam lr 725 (new south wales court of appeal) and miller v sutherland (1991) 14 fam lr 416. 60 parij v parij [1997] 72 sasr 153, per cox j. 61 [2001] nswsc 1130, (supreme court of new south wales). 62 the claimant’s argument based on a common intention constructive trust also failed. 63 ibid at [118], per einstein j citing bryson v bryant (1992) 29 nswlr 188, at 229. notably, however, kirby p in bryson v bryant, at 204, stated: ‘love and affection are all very well. by inference, they existed in this relationship for a very long time. but, in the past, such emotions have often been used as a cloak to hide the proper claims of women upon the assets of men or of the weak of either sex upon the property of the strong.’ 64 [2002] war 360. see also waterhouse v power [2003] qca 155. 65 [2001] wasc 99. 166 beneficial ownership of the family home: a comparative study of english and australian constructive trusts intention to pool resources for the purpose of that endeavour’.66 on appeal, the court of appeal of western australia substantially agreed with miller j’s reasoning: . . . there must be more than simply the performance by the plaintiff of the valuable role of the provision of love, care and support. the provision of such a contribution will be sufficient only if it is related in some factual way to the generation of wealth as part of a joint effort or endeavour to provide for the parties’ mutual material welfare and security . . . it is right to say that a joint endeavour must be intentionally or deliberately entered into for the purpose of advancing the parties material wealth. only if it bears that character will it be unconscionable for the defendant to retain the entirety of the beneficial interest in that wealth.67 the court of appeal went on to conclude that proof of the existence of a joint intention would necessarily lead to questions of whether the parties expressly agreed to embark upon such a joint enterprise or whether that intention could be inferred from all the circumstances. in so far as parij above had suggested otherwise (i.e., that the mere existence of the de facto relationship and the provision of home-maker duties were enough to ground a claim for a constructive trust), it could not be supported. the intention to pool was also a central issue in fathers v cook,68 where the supreme court of western australia accepted that ‘both parties had made significant contributions to their living expenses in relation to the . . . property, including contributions by both to the costs of ownership, as well as other living expenses and expenses of other sorts’.69 at first glance, such contributions may be considered indicative of an intention to pool resources – after all, the respondent’s financial contributions, coupled with his arrangements for work to be carried out on the property, went beyond that of merely providing love, care and support and related to the generation of wealth as part of a joint endeavour. however, simmonds j took a different view and held that the contributions were insufficient evidence of a pooling of resources – on the contrary, the parties’ arrangement was purely contractual whereby the claimant agreed to be jointly responsible for the mortgage solely on the understanding that the respondent would pay all the mortgage instalments.70 66 ibid at [10], cited on appeal in lloyd v tedesco [2002] war 360, at 368, per murray j. 67 lloyd v tedesco [2002] war 360, at 368–369, per murray j. 68 [2006] wasc 129, (supreme court of western australia). 69 ibid at [138], per simmonds j. 70 ibid at [140]. the denning law journal 167 the insistence on a joint intention to pool resources is also evident in lamers v the state of western australia,71 where the supreme court of western australia rejected ms willis’ claim to a beneficial interest in the property because it could not be inferred that the parties intended to pool their resources for the purpose of a joint endeavour. her partner (mr lamers) had purchased the house two years before the parties’ relationship commenced, and three years before ms willis moved in. until that time, there could have been no doubt that mr lamers was both the sole legal and equitable owner of the property. templeman j accepted that the purpose of the cohabitation was to provide security for the parties and their child, but this did not justify the inference that ms willis’s contributions to the mortgage and payment of bills (whilst mr lamers was absent) should give rise to an ‘implied agreement that mr lamers would either make a gift or allow ms willis to acquire an interest’.72 he concluded that ‘the pooling of resources . . . was more probably a matter of practical convenience of ensuring that essential bills were met, rather than for the purpose of some joint endeavour’.73 significantly, he also re-affirmed the principle in lloyd that: . . . proof of the joint endeavour requires proof of an actual intention to pool resources for the purpose of that endeavour. such intention need not, of course, be proven by direct evidence of the declaration by both parties of such an intention. it can, in an appropriate case, be inferred from all the facts and circumstances of the case.74 the decision in lamers is particularly interesting. the search for an intention to pool resources clearly mirrors the search for an intention to share beneficial ownership under the english common intention constructive trust. indeed, it is arguable that, by requiring proof of actual intention, the australian courts had, in effect, taken the law full circle, reaching a position not too dissimilar from that actually rejected in baumgartner. the reference to an inferred intention in lamers is also reminiscent of the lord bridge’s two stage test in rosset requiring proof of either an express or inferred common intention in order to support a constructive trust. in this sense, the doctrine of unconscionability appears to have been no more than a reformulated version of the rosset criteria with one notable difference, notably, that the former attached greater weight to indirect and non-financial contributions. however, this weighting was still limited as non-financial 71 [2009] wasc 3, (supreme court of western australia). 72 ibid at [36]. 73 ibid at [46]. 74 ibid at [33]. 168 beneficial ownership of the family home: a comparative study of english and australian constructive trusts contributions had to be attributable to increasing the parties’ wealth,75 rather than being provided purely out of natural love, care or family support. this additional requirement may be questioned in the domestic context but may be readily explained in so far as its roots may have originated in pre-baumgartner case law, in particular, muschinski, which was a partly commercial case. whilst most parties enter into commercial dealings with the plain intention of increasing their wealth,76 the same may not be so obvious in the context of a family arrangement. (4) quantifying beneficial interests in baumgartner, the high court expressed the view that ‘there is something to be said for declaring an equality of interests even though the earnings of the parties were not equal’.77 this suggests that the doctrine of unconscionability is not concerned with strict calculations as to how much each party has contributed during the course of their relationship: the court should, where possible, strive to give effect to the notion of practical equality, rather than pursue complicated factual inquiries which will result in relatively insignificant differences in contributions and consequential beneficial interest.78 this approach, however, has not always been followed. in parij, debelle j held that, even in relatively long relationships, there was no presumption that equality is equity – whilst an ‘examination [of the facts] may lead to a determination that there should be equality, equality is not the starting point’. the case did, however, provide some optimism for ‘homemaker’ claimants since the decision required that ‘substantial [and] not token regard should be had to the contribution of the partner who is the homemaker and care giver’.79 the decision in read v nicholls80 is more illustrative of the baumgartner approach. here, the claimant had made no direct financial contributions to the 75 see, for example, cressy v johnson (no 3) [2009] vsc 52, (supreme court of victoria); albert v hill [2005] wasc 291, (supreme court of western australia) and branding v weir [2003] nswsc 723, (supreme court of new south wales). 76 see, crafter & crafter and others [2011] famca 122, at [82], where the family court of australia concluded that the joint venture can be expected to be less nebulous requiring greater clarity of intention in the commercial context. 77 (1987) 164 clr 137, at [12], per toohey j. 78 ibid, per mason cj, wilson and deane jj. 79 [1997] sasc 6771, per debelle j. 80 [2004] vsc 66, (supreme court of victoria). the denning law journal 169 acquisition of the disputed properties and there was little evidence of indirect financial contributions. she had, however, made non-monetary contributions as homemaker and caregiver to her de facto husband for over 40 years – ‘[she] shouldered the bulk of the burden of cooking and cleaning for the household.’81 in quantifying the shares, nettle j held that ‘the starting point [was] in one sense equality’.82 in line with parij, he attached significant weight to the non-financial contributions made by the claimant – ‘the support and comfort that she is likely to have given to him for the period of its duration were so significant that [her] contribution should be regarded as equal to the financial contributions made by [him] out of his income.’83 however, in accordance with baumgartner, the financial contributions made by the defendant also had to be taken into account. accordingly, nettle j deducted from the purchase price of the properties the financial contributions made by the husband from other sources. the parties’ equal shares were calculated on the basis of the remaining balance. the decision in read is particularly significant because the successful claim was based almost entirely on non-financial contributions. this departs radically from the approach taken by the english courts, most notably, in burns v burns,84 where the contributions made by the party as homemaker and care giver did not give rise to any beneficial interest, let alone a half share, in the family home. the disparity between read and the english cases demonstrates the australian doctrine’s ability to recognise such contributions notwithstanding the absence of any financial outlay towards the acquisition of, or subsequent capital improvement to, the property. apart from these differences, however, the method of quantifying shares under the unconscionability doctrine was not too dissimilar from the approach adopted by the english courts. it will be remembered that, under english law, a presumption of equal beneficial entitlement exists where property is held in joint names.85 this is analogous with the baumgartner principle whereby ‘equality is equity’. moreover, both the australian and english methods of assessment require adjustments to equal shares where a party has made greater contributions than the other. in sole ownership cases, the english approach is to allow the court to take into account other factors including spousal and domestic services (in addition to financial contributions) in assessing beneficial entitlement. this is comparable to the australian approach where other considerations have been relevant (either 81 ibid at [53], per nettle j. 82 ibid at [58]. 83 ibid at [63]. 84 [1984] ch 317, (ca). 85 see stack v dowden [2007] 2 ac 432[60], per baroness hale. 170 beneficial ownership of the family home: a comparative study of english and australian constructive trusts alone or in conjunction with financial contributions) in quantifying the parties’ respective shares. however, under the australian approach, the courts have been prepared to give more substantial weight to non-financial contributions when quantifying shares. (5) comparisons with the english approach the australian case law is illustrative in showing that the mere existence of a de facto relationship did not of itself establish the requisite joint endeavour in order to support a constructive trust. in particular, the mere fact that the claimant had acted as homemaker and carer did not entitle her to seek equitable relief. this, of course, reflects the current english approach. under the australian doctrine of unconscionability, what was required,86 as we have seen, was: (1) the existence of a joint endeavour between the parties (requiring proof of an actual intention either by direct evidence of discussions or inferred from all the circumstances) for the purpose of providing mutual financial security and benefits; (2) valuable financial or non-financial contributions by the claimant to the joint endeavour; (3) an increment in wealth accruing to the other partner as a result of the joint endeavour and (4) the unconscionability of the retention of that wealth by the other partner to the exclusion of the claimant. these key elements, it is submitted, accord to a large extent with the english approach. first, there is the obvious requirement of intention necessary to support a constructive trust, which can be either express (derived from the parties’ discussions) or inferred from their conduct. after all, baumgartner itself was essentially an express common intention case based on evidence of direct/indirect financial contributions towards acquisition (i.e., the claimant pooled her income into a common fund from which the mortgage and other outgoings were paid out). to this extent, the outcome would have been the same under english law.87 although the requisite common intention under english law does not, strictly speaking, require a ‘joint endeavour’, the emphasis on a common ‘arrangement, agreement or understanding’88 to share beneficial ownership does provide a close analogy, given that the australian courts looked to a pooling of resources aimed at providing mutual financial benefits and security. 86 see lloyd v tedesco [2001] wasc 99, at [9]–[10], per miller j, (supreme court of western australia), approved on appeal, [2002] wasca 63, at [27]–[29], per murray j, (court of appeal of western australia). see also, albert v hill [2005] wasc 291, at [146], per jenkins j, (supreme court of western australia). 87 see grant v edwards [1986] ch. 465, (ca). 88 see lloyds bank plc v rosset [1991] 1 ac 107, 132, per lord bridge. the denning law journal 171 secondly, under english law, both financial and non-financial contributions may be taken into account in assessing shares, although in australia, as we have seen, there was scope for saying that non-financial contributions would alone suffice so long as there was proof of a joint endeavour. although the additional requirement of an ‘increment in wealth’ coupled with the ‘unconscionable retention of that wealth’ is a vital component of the unconscionability doctrine, this too reflects broadly the english position. if the claimant establishes a common intention to share beneficial ownership, coupled with valuable contributions, the english court will recognise his/her equity by declaring a beneficial share. in so doing, it is giving effect to the shared intentions of the parties by producing a ‘fair and just’ result based on the evidence of what the parties themselves must have intended and not what the court itself may consider an equitable outcome. the essential ingredient, it is submitted, in both jurisdictions is the element of mutual intention which demonstrates that the relevant contributions were made with a view to either advancing the parties’ material wealth (baumgartner) or acquiring an interest in the property (rosset). indeed, this ingredient will, no doubt, continue to govern cases in the australian context outside the strict parameters of the family law act 1975, namely, where the dispute is between family members other than married couples or those in a de facto relationship. conclusion in line with the australian experience, the time has come, in the writers’ view, to abandon the rosset scheme under english law altogether in favour of a more simplified enquiry, in both single and joint ownership cases, involving an examination of the parties’ ‘shared intentions’ (actual, inferred or imputed) by reference to all the relevant circumstances. such an enquiry would subsume all aspects of the acquisition question as well as the question of quantification because the factors used to address entitlement would also dictate (and resolve) the extent of the beneficial shares. the notion that non-financial contributions (on their own) may give rise to beneficial ownership has received recognition in the australian courts and there is much to be said for adopting a similar approach under english law. although domestic and home care services may inevitably be provided out of motives of natural love and affection, this should not deny a claimant relief where such services are directed, pursuant to the parties’ system of money management, to the acquisition and maintenance of property where one party meets mortgage instalments and the other pays for general outgoings and living expenses. the list of factors, therefore, currently employed by the english courts in determining and assessing entitlement should be expanded to include non-financial contributions so 172 beneficial ownership of the family home: a comparative study of english and australian constructive trusts that equal, not token weight, should be attributed to such contributions. unfortunately, recent cases, most notably, graham-york v york, referred to earlier, have chosen to largely ignore these wider factors in the interests of a simple and formulaic solution. there has been much academic criticism of the english approach in perpetuating gender bias within the law, which is undoubtedly convincing. in her influential article,89 simone wong submits that, because women are more likely to be the primary homemaker or care giver, they are, therefore, less likely to be able to make financial contributions and, consequently, find it more difficult to meet the current requirements of the common intention constructive trust. in order to address this imbalance, she argues that the english courts should recognise that non-financial contributions have just an important role to play in determining beneficial ownership as purely financial contributions. this would not, however, mean a return to the uncertainties and unpredictability of lord denning’s ‘new model’ constructive trust. the key feature of denning’s new model was that it did not depend upon proof of any common intention between the parties that the claimant should acquire a beneficial interest in the property. it simply required the court to do justice between the parties – an approach which (as we have seen) was emphatically rejected by the house of lords in stack. interestingly, lord walker and lady hale in the supreme court in jones alluded to the possibility of a ‘single regime’90 governing single and joint ownership cases, although they also openly recognised the inevitable different starting points for a claimant seeking to establish a beneficial share where the property is purchased in a single name and where it is purchased jointly. in the former case, the onus is on the claimant to establish initially a common intention to share beneficial ownership (i.e., the acquisition hurdle) whereas, in the latter case, the claimant already starts with the assumption of a beneficial joint tenancy. in the latter case, therefore, the enquiry is focused on the assessment of the parties’ respective beneficial shares either at the time of or following acquisition in the light of any significant circumstances pointing to a contrary intention. in the writers’ view, however, the essential enquiry boils down to the same thing in both cases, namely, ‘to ascertain the parties’ actual shared intentions, whether expressed or to be inferred from their conduct.’91 in particular, in a single ownership case, the evidence must establish a common intention to share beneficial entitlement 89 see generally s wong, ‘constructive trusts over the family home: lessons to be learned from other commonwealth jurisdictions’ (1998) 18(3) lsj, 369–390. 90 see for example, s gardner and k davidson, ‘the future of stack v dowden’ (2011) 127 lqr 13, 15. 91 jones v kernott [2011] uksc 53, at [31] and [52], per lord walker. the denning law journal 173 which, as we have seen, will be inferred from the parties’ conduct in the absence of express agreement. such conduct need not, however, be limited to direct financial contributions but may include a wider range of factors including indirect financial contributions relevant to the parties’ ownership and occupation of the property. moreover, if it is not clear what shares were actually intended, the court will proceed in the same way as in a joint ownership case by seeking to deduce a common intention as to quantum either objectively from the parties’ conduct (i.e., presumably the same conduct which establishes the common intention to share beneficially in the first place) or, as the supreme court has now confirmed, in a way which the court considers fair having regard to whole course of dealing between the parties.92 this suggests that, at both the first and second stage of the enquiry, the essential process is the same based on the court drawing appropriate inferences (or imputations), in the absence of actual intentions, as to the parties’ common intention by reference to all the circumstances of the case.93 the emergence of a composite inquiry for determining the parties’ intentions, based on a ‘multifactorial’ examination of the circumstances (allowing equal weight to be placed on both financial and non-financial contributions), would, in the writers’ view, provide a welcome development in the english law on constructive trusts in both single and joint ownership cases in line with what has already been the australian experience. 92 ibid at [52]. 93 see further, pawlowski, m, ‘imputing a common intention in single ownership cases’ (2015) 29 tli 3. see also, most recently, amin v amin [2020] ewhc 2675 (ch). unconscionability and contract: the creeping shoots of bundy s. greenfield* and g. osborn** whilst the courts have long been able to set aside contracts falling within the compass of what might be termed 'categories of unconscionability', i it appeared after the house of lords decision in national westminster bank pic v. morgan2 that there was a marked reluctance to see these discrete areas as part of a general doctrine of unconscionability revolving around the notion of inequality of bargaining power. however, recent decisions in the field of entertainment law seem to suggest that a general principle may indeed be making a comeback via the doctrine of restraint of trade. 3 within these cases the lack of specialist advice and the inequality of bargaining power between the parties have proved crucial, and the courts' decisions have appeared to support the notion of a general principle that was advanced by lord denning in lloyds bank v. bundy.4 calls for a single unifying principle are by no means of purely modern origin. in one of the earliest authorities,5 kenyon mr stated that: "i laygreat stress upon the situation ofthe parties to [the bargain], and the persons who compose the drama", before proceeding to note that cases involving infants and guardians: "all proceed on the same general principle, and establish this, that if the party is in a situation in which he is not a free agent and is not equal to protecting himself, this court will protect him."6 the underlying theme of protection of the weaker party is reflected in many cases but perhaps is best exemplified by fry v. lane,7 where lord kay, in reviewing the cases said: * senior lecturer in law, **lecturer in law, university of westminster. 1. see, e.g., waddams, "unconscionability in contracts", [1976] m.l.r. 369 or more generally, atiyah, rise and fall of freedom of contract (1979). 2. [1985] i all e.r. 821. 3. see generally on the notion of restraint of trade in the entertainment industry, "unchained melody: restraint of trade and music contracts", [1992] b.l.r. 223. 4. [1975] q.b. 326. 5. evans v. llewellin (1787) i cox 334. 6. ibid., at p. 340. 7. (1888) 50 ch.d. 312, all e.r. reprints (l886-90), 1084. 65 the denning law journal "the result of the decisions is that where a purchase is made from a poor and ignorant man at a considerable undervalue, the vendor having no independent advice, a court of equity will set aside the transaction."8 the tenor of this argument was echoed by lord denning, then master of the rolls, some 90 years later when he forcefully propounded a general principle encompassing the notion of inequality of bargaining power. lloyds bank v. bundy concerned an elderly farmer who mortgaged his farmhouse to lloyds bank upon their insistence that without this assurance they would no longer continue to support his son's business. the assistant manager neglected to explain fully the position and possible ramifications of such a charge being made against the property to mr bundy; the son's business later collapsed and the bank proceeded to enforce the charge and guarantee. the decision of the court of appeal was based on the finding that there existed a fiduciary duty between the bank and the defendant, that there had been a conflict of interest between the bank and mr. bundy and that the bank had neglected to inform him fully of his position. accordingly, the bank was not allowed to retain its benefit from the transaction. whilst the actual decision rested upon the narrow ground of undue influence, lord denning, having accepted that in the majority of cases a customer who signs a guarantee is unable to renege upon it,9took the opportunity to examine those areas where courts have set contracts aside. lo his analysis rested upon the fact that having reviewed the situations where the court was prepared to enquire into a contract, these situations were in fact underpinned by a common theme: "gathering all together, i would suggest that through all these instances there runs a single thread. they rest on 'inequality of bargaining power'. by virtue of it, the english law gives relief to one who, without independent advice, enters into a contract on terms which are very unfair or transfers property for a consideration which is grossly inadequate, when his bargaining power is grievously impaired by reason of his own needs or desires, or by his own ignorance or infirmity, coupled with undue influences or pressures brought to bear on him for the benefit of the other." ii the rest of the court were somewhat more circumspect in their analysis preferring 8. ibid., at p. 1089. 9. this reflects the traditional reluctance on the pan of the court to interfere in contractual negotiation: see, e.g., l 'estrange v. f. graucob [1934] 2 k.b. 394. 10. lord denning cites at pp. 763-5 contracts being set aside for reason offraud, misrepresentation or mistake and suggested that there were 5 existing areas where a court would grant relief: "hitherto those exceptional cases have been treated each as a separate category in itself' (at p. 763). these categories were (i) duress of goods; (ii) the unconscionable transaction; (iii) undue influence; (iv) undue pressure; and (v) salvage agreements. ii. ibid., at p. 765. 66 unconscionability and contract: the creeping shoots of bundy a narrow interpretation, although sir eric sachs expressed guarded sympathy with the principle lord denning was espousing: "as regards the wider areas covered in the masterly survey in the judgment of lord denning mr, but not raised arguendo, i do not venture to express an opinion though having some sympathy with the views that the courts should be able to give relief to a party who has been subject to undue pressure."12 interestingly, the general theme of lord denning's analysis was concurrently receiving independent judicial support in the house of lords. schroeder v. macaulayl3 concerned an exclusive publishing agreement made between the parties in july 1966. in 1970 macaulay, who at the time of signing the agreement was 21 years old, sought a declaration that the agreement made was contrary to public policy and void. the declaration was granted by plowman j at first instance and confirmed by the court of appeal. in the house of lords it was left to lord reid to state that: "the law with regard to the validity of agreements in restraint of trade was fully considered by this house [in esso] 14and i do not intend to restate the principles there set out or to add to or modify what i said myself. i think that in a case like the present case two questions must be considered. are the terms ofthe agreement so restrictive that either they cannot be justified at all or they must be justified by the party seeking to enforce the agreement? then, if there is room for justification, has that party proved justification normally by shewing that the restrictions were no more than what was reasonably required to protect his legitimate interests."15 the agreement itself contained seventeen clauses; the crucial terms relating to the restraint argument were, inter alia, that: a) the agreement was to last for a period of 5 years in the first instance but this was to be extended by another 5 years if the royalties for the first period exceeded £5000. the royalty sum was in fact minimal and in effect the duration was to all intents and purposes ten years. as lord reid noted: "the duration of an agreement in restraint of trade is a factor of great importance in determining whether the restrictions in the agreement can be justified ... "16 12. ibid., at p. 771. 13. [1974] 3 all e.r. 616. 14. esso petroleum co. v. harpers garage southport [1968] a.c. 269. 15. supra n. 13, at p. 618. 16. ibid., at p. 621. 67 the denning law journal b) the songwriter was bound exclusively to the publisher for this period. c) the publishers retained the right to terminate the agreement on notice. crucially there was no similar right vested in the songwriter. lord reid also refused to read into the contract an agreement to act in good faith by the appellants; the importance of this being that there was no obligation stated in the agreement actually to exploit or publish the works in the artist's best' interests. if the publisher chose not to publish the works, the songwriter was prevented from plying his trade and his creative output was effectively sterilised. looking at the agreement as a whole, lord reid held that the agreement was, on its face, unduly restrictive and that the appellants had not succeeded in justifying such terms. the argument of lord diplock is illuminating in that whilst he reached the same conclusion, his line of reasoning concentrated on the notion of 'fairness' and that: "what your lordships have in fact been doing has been to assess the relative bargaining power of the publisher and the songwriter at the time the contract was made and to decide whether the publisher had used his superior bargaining power to exact from the songwriter promises that were unfairly onerous to him." 17 the affinity with denning's general approach was further evidenced by his description of the principle that underpinned the doctrine of restraint of trade: "the public policy which the court is implementing is not some 19th century economic theory about the benefit to the general public of freedom of trade, but the protection of those whose bargaining power is weak against being forced by those whose bargaining power is stronger to enter into bargains that are unconscionable."18 with the dust scarcely settled in schroeder, lord denning returned to the subject in citfford davis v. wea records .19 he drew comfort from the speeches of lords diplock and reid,20and argued that both had supported his approach in bundy: "reading those speeches in the house of lords, they afford support for the principles we endeavoured to state at the end of last term about inequality of bargaining power."21 17. ibid., at p. 623. 18. ibid .. 19. (1975] i all e.r. 237. 20. in schroeder. 21. clifford davis, at p. 240. 68 unconscionability and contract: the creeping shoots of bundy denning addressed the issue of common fairness in preventing the strong pushing the weak to the wall. he also raised the related issue of independent legal advice: "the composer had no lawyer and no legal advisers. it seems to me that, if the publisher wished to exact such onerous terms or to drive so unconscionable a bargain, he ought to have seen that the composer had independent advice."22 a cursory examination at this point might well lead to the conclusion that lord denning's approach was, with the support of the house of lords, becoming entrenched despite its relatively short gestation period. however, whilst the three cases cited above had all stressed the importance of the doctrine of inequality of bargaining power, the house of lords returned to a more traditional analysis in national westminster bank v. morgan. as with bundy, the substantive issue was undue influence. lord scarman in delivering the court's judgment, upheld the bank's contention that there had been no dominating influence exerted upon mrs. morgan and that the transaction itself was not unfair to her. having allowed the appeal, lord scarman went on to consider the vexed question of whether the court of appeal in bundy had accurately stated the law. having first approved sir eric sachs narrow interpretation,23 he turned to consider denning's argument in favour of the notion of 'inequality of bargaining power': "the fact of an unequal bargain will of course be a relevant feature in some cases of undue influence. but it can never become an appropriate basis of principle of an equitable doctrine which is concerned with transactions 'not to be reasonably accounted for on the ground of friendship, relationship, charity, or other ordinary motives on which ordinary men act' (per lindley j in allcard) ... and even in the field of contract i question whether there is any need in the modern law to erect a general principle of relief against inequality of bargaining power."24 lord scarman's approach was, as enman notes, consistent with english courts seeking refuge in laissez faire notions of freedom of contract.25 however, recent cases following the line of schroeder and clifford davis, suggest that any writing off of the doctrine may yet prove to be premature. 22. ibid., at p. 241. 23. this narrow analysis followed the reasoning of allcard v. skinner (1887) 36 ch. 145. 24. national westminster v. morgan, at p. 830. 25. enman, "doctrines of unconscionability in england, canada and the commonwealth", [1987] anglo-american law rev. at p. 202. 69 the denning law journal the recent music cases the points raised by schroeder resurfaced in the court of appeal in ztt records and another v. holly johnson.26 here there was both a publishing and recording agreement at stake. the issue for the court was whether the agreements signed by the respondent were unenforceable as an unreasonable restraint of trade. the caseconcerned agreements made in 1983and 1984between the members of the band 'frankie goes to hollywood' and the directors of ztt records and perfect songs publishing ltd., the directors and shareholders in both of these being trevor horn and jill sinclair. the contract provided that the band was, in the first instance, to be bound to the two companies, both individually and collectively, for a period of seven months (clause 3). however, the clause itself reserved the right of the company to exercise a series of options; clause 3.2 providing that "[the] artist irrevocably grants to [the] company options to extend the term of this agreement for 2 separate and successive option periods and 5 separate and successive contract periods." the periods themselves were to be the longer of 12calendar months or 120days after the delivery of the minimum recording commitmenty thus whilst on the face of it the term was 7 months, by exercising the option periods under the contract the band could be tied to the company for a period of 8 to 9 years. further to this the contract provided that if any new member was to join the band he or she would be deemed to be bound by the terms of the agreement; and that if any member chose to leave the band the company reserved the right to contract that individual into a separate agreement on the same terms and conditions as the first agreement. the duration of the term and the provisions relating to new and leaving members were sufficient for dillon lj to find that "the recording agreement as a whole is unenforceable because it is an unreasonable restraint of trade. "28 however, whilst the analysis of the case can be based on a logical extension of the doctrine of restraint of trade from the publishing agreements of schroeder and into the lucrative area of recording agreements, dillon lj's arguments owe much to the reasoning of lord diplock in the same case. aswas noted above, lord diplock based his analysis of the situation in schroeder on whether the contract was fair. there was no evidence of undue influence on the part of horn or sinclair in the present case but, as dillon lj put it: 26. independent law reports, 2 august 1989. 27. the minimum recording commitments and option periods are specified in gause 4.1. 28. court of appeal transcript, 26 july 1989, at p. 12. . 70 unconscionability and contract: the creeping shoots of bundy "what is said is that the terms of the recording agreement and publishing agreement put forward by the recording company and the publishing company, even after such concessions as were made during the negotiations, were soone sided and unfair that consistently with the principles applied by the house of lords [in schroeder] they cannot stand and cannot be enforced against the defendant. "29 thus whilst the case can be confined to the strict restraint of trade argument, the reasoning employed by dillon lj relies to a great extent on the notion of inequality of bargaining power alluded to by lord diplock and championed by lord denning in bundy. also noted within the decision are the relative positions of the parties; the importance of this was emphasised by the high court in an unreported case concerning 'the stone roses'. 30 'the stone roses' case concerned both a recording and publishing agreement made between the parties in april 1988. in finding that the agreement was indeed unenforceable as an unreasonable restraint of trade, judge humphries found certain terms to be crucial. i) duration the band was tied to the companies for a minimum of 7 years. however, by the operation of an alternative option calculation the term would, if later, expire 9 months after the release of the minimum recording required in the united states. there was no obligation to release any of the band's material in the u.s. and the band could have been tied to the label indefinitely. ii) exclusivity by clause 4 of the agreement, zomba had the exclusive and sole right to exploit the stone roses' recordings. the decision as to the reproduction, distribution or release of the product rested solely with zomba. the band was also forbidden to render any performances where there existed a possibility of recording and future manufacture and release. iii) territory as the judge noted, 'the world and its solar system' could hardly have been more extensive. whilst those terms in particular and the agreement as a whole led to a finding of an unreasonable restraint of trade, judge humphries comments regarding the relative bargaining powers make interesting reading. the solicitor used by the manager of the stone roses was geoffrey howard, about whom judge humphries said: 29. ibid., at p. 3. 30. silvertone records v. mountfield & drs, zomba music v. mountfield & drs (unreported) 20 may 1991. 71 the denning law journal "mr. howard may well be and may well have been competent in many parts of a solicitor's work, but he was not, and nor did mr. evans or the plaintiffs ever believe him to be, an experienced music lawyer."31 having described mr. furman, the plaintiffs lawyer, as an experienced barrister with considerable expertise in the field of music contracts, he went on to describe the wider role of the music lawyer: " ... the services of a music lawyer in contracts such as the one in consideration is not as in many contracts simply to explain the legal meaning to clients and to ensure where appropriate that the contract is representing what the client wants. within the entertainment industry, or at any rate the subject i am considering, music lawyers go much further. they need the expertise to appreciate many of the terms, something of the state of the market, the state of the law on restraint and entertainment contracts, which in recent years has been developing rapidly. music lawyers habitually get involved in negotiations and know where it is right to and where they are able to put pressure on the other side so as to thrash out an agreement which is fair to both sides. mr. howard had none of this expertise. he had i doubt ever heard of the holly johnson case and i am sure he had no appreciation whatever what it was all about, and am quite satisfied he was no match whatever for the expertise and experience on the plaintiffs side."32 whilst this case too withstands a strict analysis in terms of restraint of trade, the reasoning again rests on the relative bargaining power of the parties. had the plaintiffs recommended that mr. evans seek specialist independent advice before signing the contract the outcome may well have been significantly different. as it was, the plaintiffs superiors themselves on hearing of the terms ofthe agreement that had been signed expressed concern that the lack of substantial negotiation could render the contract unenforceable. conclusion the immediate ramifications of these decisions on the music and entertainment industries seems uncontroversial; contracts made without recourse to specialist independent advice which contain unduly restrictive terms may be subject to legal scrutiny. the music industry will no doubt take heed of these warnings and conduct their negotiations accordingly. whether this heralds a resurrection of a general principle of unconscionability, based on inequality of bargaining power, appears to be more problematic. 31. transcript of the high court, queen's bench division, 20 may 1991, at p. 33. 32. ibid., at pp. 33-34. 72 unconscionability and contract: the creeping shoots of bundy certainly the courts appear to be considering the fairness of contracts and the circumstances surrounding the making of such a contract, but this must be seen against the enmity exhibited by lord scarman towards a general principle. what does seem apparent is that whilst the development of lord denning's principle may have been headed off in a limited range of cases through the morgan decision, the seeds sown by lord diplock in schroeder and lord denning in clifford davis have found fertile ground within the doctrine of restraint of trade and may prove far more difficult to suppress. 73 a legal conundrum: the law's treatment of women susan nott* the term 'conundrum' signifies, according to its dictionary definition, a riddle or a complex question. the proposition considered in this article is that the law's treatment of women constitutes a legal conundrum since it raises numerous complex questions, in particular why, given the law's apparent desire to improve the situation of women, it has failed them so consistently. the issue is an important one since there are numerous groups within society ethnic minorities, the disabled, the elderly and homosexuals who regard themselves as the targets of discrimination. the law's lack of success in achieving equality for women may provide important lessons for other groups in society who wish to use the law as a means of securing equality. how has the law failed women? the proposition that the law has failed women is one which requires examination in greater detail. there are those who regard this negative attitude towards the law as misrepresenting real achievements and discouraging women from seeking a legal remedy when they are the object of discrimination.· there is no denying that compared to their position one hundred and fifty years ago or even fifty years ago women have made considerable gains. there has been a pattern to that progress. the first stage is represented by women's struggle to gain access to those privileges enjoyed by men from which women were excluded, either because they were women or, alternatively, because they were married women. this culminated in a series of legislative successes:2 the married women's property acts 1870, 1882, which gave married women the freedom to acquire and dispose of property;3 the * senior lecturer in law, university of liverpool. 1. m. rubenstein, "beyond the whinge", 11 oxfordjo. of legal stud. (1991), p. 254. 2. these successes were achieved only after lengthy campaigns for change. as an alternative but unsuccessful strategy, a number of cases were brought involving claims by women that the use of gender-neutral terms, such as 'person', in the legislation regulating the right to vote and entry to higher education and the professions gave women access to those rights, although previously they had been enjoyed by men alone. an account o( these co-called 'persons' cases is given in a. sachs and j. h. wilson, sexism and the law (o.u.p., 1978). 3. before the passage of this legislation control of a married woman's property was in the hands of her husband. 137 the denning law journal sex disqualification (removal) act 1919, which gave women access to public office, the professions and higher education; and the representation of the people act 1918 and the equal franchise act 1928, which gave all women over the age of 21 the right to vote. the struggle for access continues to the present day with women's campaign to be admitted to the priesthood. the second stage came with the realisation that legislation granting women access to what had previously been denied them did little to alter the status quo. to take a single example, although women obtained the right to enter the legal profession in 1919 by the "mid-fifties only two per cent of solicitors and 3.2 per cent of barristers were women".4 it was abundantly clear that legislation guaranteeing access, or perhaps more accurately formal equality, was no defence against discrimination on the grounds of a person's sex or their married status. this is not to suggest that these gains were worthless but rather that they failed to address the true causes of women's inequality. to quote one commentator: "the campaign for the vote, for married women's property rights, for custody and so on, were politically important. the fact that history has shown that women's oppression is not simply a matter of equal rights under the law should not blind us to the importance of those early struggles."5 the passage of the anti-discrimination legislation namely the equal pay act 1970 and the sex discrimination act 1975 represented an effort to eliminate discrimination on the grounds of sex or marital status and secure women equal pay. at the time, this legislation, with its condemnation of discrimination on the grounds of sex, seemed to offer the key to equal opportunities. this was despite the warning in the white paper which preceded the legislation that, without the right social and economic conditions, there were limits to what the law could achieve.6 under the terms of section 1(1) ofthe sex discrimination act 1975 discrimination is said to occur in the following circumstances: a person discriminates against a woman in any circumstances relevant for the purposes of any provision of this act if (a) on the ground of her sex he treats her less favourably than he treats or would treat a man, or (b) he applies to her a requirement or condition which he applies or would apply equally to a man but (i) which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply vlith it, and 4. the reporf of the hansard society commission on women at the top, 1990, p. 46. 5. c. smart, feminism and fhe power of law (routledge, 1989), p. 139. 6. equajify for women (h.m.s.o., 1974), cmnd. 5724, para. 21. 138 a legal conundrum: the law's treatment of women (ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and (iii) which is to her detriment because she cannot comply with it. this definition of discrimination applies also to the manner in which a man or a married person is treated.7 in respect of pay a woman can utilise the equal pay act 1970 to demand the same rate of pay as a higher paid male colleague in the same employment if that woman is engaged on like work, or work rated as equivalent under a job evaluation scheme or work of equal value. b the employer can defeat her claim ifhe can establish that the woman's lower rate of pay is genuinely due to a material factor which is not the difference in sex. there is no denying that the existence of the anti-discrimination legislation has proved beneficial to some women. any likely benefit has undoubtedly been enhanced by the united kingdom's membership of the european community. the promotion of equal opportunities and equal pay are important aspects of community policy. article 119 of the treaty of rome provides that: "each member state shall ... maintain the application of the principle that men and women should receive equal pay for equal work." in addition the community has approved various directives to promote equal opportunities such as the equal treatment directive9 and the equal pay directive. 10 the reason for the community's insistence on equal pay and equal treatment is that without it those states that continued to pay women less than men would represent unfair competition to states where men and women were guaranteed equal treatment. the strength of the european community's commitment to equal opportunities is particularly apparent from the jurisprudence of the european court of justice. its interpretation of community directives and treaty articles is based on a purposive rather than a literal approach. the desire to seek out the intention behind the legislation can prove very helpful to women. in the dekker case, 11 for example, the european court stated categorically that a refusal to employ a woman because she was pregnant and would not be covered by an insurance scheme amounted to direct discrimination. since only a woman can become 7. sections 2 and 3, sex discrimination act 1975. discrimination against those who are married is relevant only in the context of employment. for an account of how the courts have defined and interpreted direct and indirect discrimination see a. e. morris and s. m. nott, working women and the law (routledge, 1991), chapter 5; e. ellis, sex discn'mination law (gower, 1988). 8. section i, equal pay act 1970. for an account of how the courts have chosen to interpret this section see morris and nott, supra n. 7, chapter 6. 9. directive 76/207. 10. directive 75/117. ii. dekker v. stichting vormingscentrum voor vo/wassenen (vjv centrum) [1991] i.r.l.r. 27. 139 the denning law journal pregnant the unassailable consequence of this was that a refusal to employ her represented direct discrimination on the grounds of sex. this contrasts sharply with the united kingdom courts' treatment of claims that a dismissal on the grounds of pregnancy constitutes direct discrimination. such claims have, in the main, been rejected unless the claimant can show that a man would not be treated in this manner. since men cannot become pregnant this necessitates considering how a man suffering from some illness would be treated. 12 the courts' contrived approach to pregnancy dismissal cases is attributable to their literal application of the sex discrimination act when it calls for a comparison to be made between a woman and a man in comparable circumstances. 13 women in the united kingdom have, however, been able to take advantage of the community's greater commitment to equal opportunities. there have been occasions when the united kingdom has chosen to implement community legislation that gives women greater protection against discrimination.14 if the united kingdom has not ensured that its law is in accordance with community law then it seems that the english courts are now under an obligation to interpret their domestic legislation in a manner that is consistent with community law.ls this is irrespective of whether the legislation in question was intended to implement community law.16 there is a third and final stage to the process whereby women have attempted to use the law to achieve equal opportunities. this has required a reassessment of laws that ostensibly are designed to give women special protection. that special protection is usually said to be inspired either by the wish to safeguard a woman's fertility or to acknowledge her family responsibilities. in the past, for example, women had their hours of work restricted in recognition, so it was said, of their role as mothers. l 7 employing the law in this fashion provokes the reaction that it 12. see, e.g., hayes v. malleable working men's club [1985] i.r.l.r. 367. in webb v. hmu (air cargo) ltd. [1992] i.r.lr. 116, the court of appeal affirmed once again that english law required a comparison to be made not simply between a woman and a man but between a woman and a man in comparable circumstances. in the case of a woman who was pregnant this entailed asking how a man in similar circumstances, that is suffering from an illness, would be treated. the european court's decision in dekker was distinguished on the basis that it concerned a decision not to recruit a pregnant woman, whereas in webb the pregnant employee was incapable of performing the job for which she had been hired. see now the house of lords' decision in webb [1993] i.r.l.r. 27. 13. sections 1(1)(a), 5(3), sex discrimination act 1975. 14. see, e.g., social security act 1989 which implemented directive 86/375. as a consequence the concepts of direct and indirect discrimination became applicable to occupational pension schemes and the sex discrimination act 1975, section 6(4) was amended to take account of this. 15. marleasing sa v. la comerciallnrernacional de alimenracion c 106/89, 13 november 1990. 16. according to the english courts, iflegislation was not intended to implement community law then they were under no obligation to interpret that legislation so as to take account of community law: duke v. reliance systems [1988] i.r.l.r. 118. 17. the factory act 1848 limited women's working hours to ten a day as well as forbidding night-time working. restrictions on the hours women might wotk were finally repealed in the sex discrimination act 1986, section 7. the true motives behind legislation of this nature are hard to discern. such measures may have been intended to prevent women from competing with men for employment or to reassert women's primary role as caring for the family. 140 a legal conundrum: the law's treatment of women condones discrimination since no account is taken of the needs of individual women. if the law sees fit to grant women special protection, and there are circumstances such as pregnancy when this is essential if women are to compete on equal terms with men, then it needs to be specific. the employment protection (consolidation) act 1978 and the social security act 1986 do this very thing by granting a pregnant employee four specific rights: the right not to be unfairly dismissed because of pregnancy; the right to paid time off for ante-natal care; the right to statutory maternity pay; and the employee's right to return to her job after the birth of her child. is in contrast, other special protection measures exist which are regarded with much greater ambivalence. section 51 of the sex discrimination act 1975 renders lawful discrimination in employment which is necessary to comply with laws passed prior to the sex discrimination act, for example the health and safety at work act 1974, where the discrimination is aimed at protecting women in relation to pregnancy, maternity or other risks specifically affecting women.l9 under the terms of section 51 an employer may attempt to exclude a woman from certain types of work using the excuse that this is necessary to safeguard her fertility, whatever her views on the matter might be. the special protection on this occasion would be no more than an excuse for discrimination.20 one positive feature, so it is said, of women's campaign for equality is a growing awareness on the part of those responsible for the application and interpretation of the law of the purpose behind the equal opportunities legislation. as rubenstein has remarked: "the generation of judges which heard the first discrimination cases tended to regard the laws as infringements on the liberty of the subject and therefore to be interpreted restrictively. the new generation is much more prepared to accept that they are reforming statutes and therefore to be interpreted purposively. the older generation tended to view discrimination as an aberration from traditional english standards of 'fair play'. the new generation, if not quite prepared to accept that discrimination is 18. sections 31a, 45 and 60, employment protection (consolidation) act 1978 and section 46, social security act 1986. for a full account of the manner in which the law regards pregnancy see morris and nott, "the legal response to pregnancy", 12 legal studies (1992), p. 54. the trade union reform and employment rights bill will, when it becomes law, add to this protection. 19.the original wording of section 51 was amended by the employment act 1989 so as to take account of the european court's decision in johnston v. the chief constable of the royal ulster constabulary [1986] i.r.l.r. 263. 20. in page v. freight hire (tanker haulage) ltd. [1981] i.c.r. 299 an employer who did just this was held to have a defence under the unamended terms of section 51. his discriminatory action was necessary in order to comply with a statute, the health and safety at work act 1974, which predated the sex discrimination act 1975. if a similar situation were to arise today it is not clear whether the same decision would be reached or whether the english courts would insist on an employer demonstrating that he had no alternative to excluding the woman in question, which was the european court's approach in johnson (see n. 17). 141 the denning law journal 'institutional', would seem to recognize that it is widespread, yet difficult to prove."21 decisions such as those of the house of lords in picks tone v. freemans22 and james v. eastleigh bor()ugh counci[23 are cited as instances of this enlightened approach which emphasises the purpose behind the anti-discrimination legislation and owes much to the example set by the european court of justice. in other contexts, however, the judiciary can still be found expressing stereotypical views of women. rape is one such example where a woman's behaviour may be condemned as somehow 'causing' the rape.24 the positive benefits that changes to the law, a more sympathetic judicial attitude and membership of the european community have brought women are undeniable. indeed, greater awareness of women's needs has extended beyond the application of the anti-discrimination legislation. from the seventeenth century onwards the accepted view was that a husband could not be found guilty of raping his wife. to sir matthew hale: " ... the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract. "25 over the years exceptions were developed to this general principle, though in the main the principle remained intact. yet the house of lords' decision in r. v. r. has put an end to this immunity previously enjoyed by husbands.26 the reason for this was that such a state of affairs no longer accorded with the modem status of women. to lord keith: "the common law is, however, capable of evolving in the light of changing social, economic and cultural developments. hale's proposition reflected the state of affairs in these respects at the time it was enunciated. since then the status of women, and particularly of married women, has changed out of all recognition in various ways which are very familiar and upon which it is unnecessary to go into detail. apart from property matters and the availability of matrimonial remedies, one of the most important changes is that marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband. hale's proposition involves that by marriage a wife gives her irrevocable consent to sexual intercourse with her husband under all circumstances and irrespective of the state of her health or how 21. rubenstein, supra n. 1, p. 257. 22. [1988] i.r.lr. 357. 23. [1990] i.r.l.r. 288. 24. smart, supra n. 5, chapter 2. 25. sir matthew hale, history of the pleas of the crown, 1 hale p.c. (1736) 629, quoted by lord keith in r. v. r. [1991] 4 all e.r. 481, p. 483. 26. [1991] 4 all e.r. 481. 142 a legal conundrum: the law's treatment of women she happens to be feeling at the time. in modern times any reasonable person must regard that conception as quite unacceptable. "27 in view of these constructive features of the law's treatment of women it would seem difficult to sustain the assertion made in the opening paragraphs of this article that the law has failed women. there is, however, clear evidence that women are not benefiting as one might expect from the anti-discrimination legislation and it is impossible to dismiss this claim as feminist carping. the annual statistical reports prepared by the equal opportunities commission (eoc) in order to compare the situation of working men and women in britain provide many illustrations ofthdaw's failure. the eoc's report for 1991 showed that in 1990 women who worked full-time earned on average 77 per cent of the hourly earnings of male full-timers.28 there was an even wider difference between the sexes when weekly earnings were compared. though these figures are disappointing they represent an improvement as compared with previous years. as the eoc's statistical survey shows there are many reasons for these variations, one of the principle ones being job segregation. women predominate in certain sectors of industry and certain occupations. for example, women's employment is concentrated in the service sector of industry as opposed to the manufacturing sector. within the service sector women are most frequently found in certain occupations such as medical and other health services.29 it would appear that where women employees are in the majority then low pay is the order of the day. men also seem better able to supplement their basic earnings with additional payments such as overtime payments or shift bonuses. the eoc quotes the example of electrical and electronic engineering where male manual workers derive 26 per cent of their total pay from additional payments but female manual workers derived only 17 per cent from the same source.30 a study undertaken by industrial relations services entitled pay and gender in britain sheds further light on the differences in pay between men and women.31 the study uncovered a number of potential sources of pay inequality. pay structures tended to be segregated by gender so it was not uncommon to find one pay structure for management which was dominated by men and another for clerical staff which was dominated by women. grading structures covering mostly women tended to be shorter and when women were in the majority a pay structure was less likely to provide for additional payments. indeed, the authors of the study concluded that the equal pay legislation, and in particular the notion of equal value, had a limited impact on pay restructuring. tradition was far more likely to be quoted as the reason for organising pay structures in a particular fashion.32 27. ibid., pp. 483-484 (lord keith). 28. women and men in britain 1991, equal opportunities commission, pp. 1-7. 29. ibid., pp. 9-20. 30. ibid., p. 7. 31. pay and gender in britain, a research report for the equal opportunities commission from industrial relations services, 1991. 32. ibid., chapter 6. 143 the denning law journal the eoc in its 1991report also draws attention to the large numbers of women who work part-time. in 1989forty three per cent of female but only eight per cent of male employees worked part-time. 33 part-time employees always seem to be at a disadvantage when compared with full-time workers. to quote the eoc: "women who work part-time continue to receive lower average hourly earnings than their full-time equivalents; indeed, the difference between the average hourly pay of full-timers and part-timers has actually widened over the past decade. "34 the reason why so many women work part-time as compared with so few men is linked to whether or not a woman is married, whether she has dependent children and the age of her children.3s such factors do not in general affect the economic activity rates of men. this emphasises that, 'whatever the anti-discrimination legislation may have achieved, it has not led to a more equitable division of the burden of childcare between men and women. opportunities to work part-time are often to be found in low paid occupations. according to the eoc the figures for 1989 show that" 52 per cent of all female part-time employees worked either in selling (the lowest paid of the non-manual occupations) or in catering, cleaning and related occupations (one ofthe lowest paid of the manual occupations). this compared to only 16 per cent of their full-time equivalents." 36 women's lower earning capacity as compared with men and the likelihood that during their working lives they may experience periods of economic inactivity or part -time work have other more indirect effects. one of the most significant is the consequence it may have on women's ability to provide for their old age and retirement. the figures show that in 1989 "61 per cent of male and 37 per cent of female employees were in pension schemes. "37 part of the explanation for this difference between the sexes is related to the number of female part-time employees. few part-time employees, according to the eoc, are members of occupational pension schemes. the equal opportunities commission is not the only source of evidence that women have not derived the advantages one might expect from the antidiscrimination legislation. the hansard society established a commission to consider the problems facing women wishing to gain access to senior positions in public, corporate and professional life. their report, women at the top,38 highlights that women are still very much in a minority in these influential positions. although, for example, increasing numbers of women are now entering 33. women and men in britain 1991, equal opportunities commission, p. ii. 34. ibid., p. 1. 35. ibid., p. 23. 36. ibid., p. 27. 37. ibid., p. 33. 38. the report of the hansard society commission on women at the top, 1990. 144 a legal conundrum: the law's treatment of women the legal profession, a considerable number will leave in mid-career in order to raise families. these women may return to practis~ as barristers or solicitors but their absence wil have caused them loss of seniority and consequently make their promotion to partnerships or head of chambers less likely. women are also in a minority in the judiciary. since judicial appointments are made from senior members of the legal profession and far fewer women than men will have the necessary seniority this produces a pool of candidates for the judiciary heavily dominated by men.39 besides drawing attention to the lack of women in senior positions, the hansard society identifies what it sees as the barriers to equality. they are outmoded attitudes about the role of women, direct and indirect discrimination, the absence of proper childcare provision and inflexible structures for work and careers.40 indeed they state categorically that discrimination against women is still widespread. this discrimination is not the unsubtle 'we will not employ women kind'. it consists instead of unspoken assumptions that are made about women, the existence of networks that exclude women, such as membership of the freemasons, and the insistence that job applicants possess certain qualities such as youth or geographical mobility. other research studies have also underlined the subtle and complex nature of discrimination which the legislation seems completely powerless to tackle. in managing to discriminate,41 a detailed study was undertaken of the recruitment practices of various private companies in a number of industries. what emerged from this study was "that informality in the channels, criteria and procedures of recruitment was both a common practice ... and one that facilitated the reproduction of job segregation. "42indeed the authors of this study were forced to conclude that "despite anti-discrimination legislation in the mid-1970s, a substantial number of employers, many of whom publicly subscribe to equal opportunities, are still 'managing to discriminate' on the grounds of sex through a variety of recruitment practices."43 apart from this overwhelming evidence of discriminatory practices continuing unabated it appears that those women who try to make use of the antidiscrimination legislation face an uphill task.44 research undertaken into the experiences of women bringing sex discrimination and equal pay claims has pinpointed the difficulties that women may encounter. they comprise the problem of securing good quality advice and representation before the tribunal, of withstanding the stresses, including victimisation, of bringing a claim and of 39. ibid., p. 44. 40. ibid., p. 2. 41. d. l. collinson, d. knights, m. collinson, managing fa discriminare (routledge, 1990). 42. ibid., p. 193. 43. ibid., p. 192. 44. see, e.g., a. leonard, judging inequaliry: the effeaiveness of rhe indusrn'aj tribunal sysrem in sex. discn'minarion and equal pay cases (cobden trust, 1987);a. leonard, pyrrhic viaories: winning sex discriminarion and equal pay cases in rhe indusrrial tn'bunals 1980-84 (h.m.s.o., 1987);j. gregory, trial by ordeal (h.m.s.o., 1989); morris and nott, supra n. 7, chapter 8. 145 the denning law journal facing the prospect that, even if she is successful, a woman may secure little in the way of compensation. there is also evidence that the members of industrial tribunals often show incomprehension or ignorance of the anti-discrimination legislation.45 why has the law failed women? there appears to be incontrovertible proof that for all its promise the antidiscrimination legislation is failing women. it remains to be seen why this is so. one obvious explanation is that the anti-discrimination legislation has not succeeded in its aim of promoting equal opportunities. part of the problem may be that the concept of equality championed in the legislation does not accord with women's needs and aspirations. the sex discrimination act identifies two forms of discrimination direct and indirect. direct discrimination occurs when a woman is treated less favourably on the grounds of her sex than a man. indirect discrimination takes place when a condition is applied to both sexes but the proportion of women who can comply with it is considerably smaller than the proportion of men and as a consequence a woman suffers a detriment because of her inability to comply. in the case of indirect discrimination it is a defence to show that the condition in question is justifiable irrespective of sex. direct discrimination requires that men and women be treated in the same fashion. the problem with this approach is that it totally ignores the differences between men and women. apart from the obvious biological differences, there are the differences that arise from the fact that women are expected to assume and do assume the major responsibility for childcare. this fact has an obvious and adverse effect on women's economic prospects. therefore, the hypothesis that if a woman is treated in the same manner as a man would be she has achieved equality, is patently untrue. in order to benefit from the current definition of direct discrimination a woman has to be able to adopt a lifestyle that approximates to that of a man. the lack of practical impact of the legislation comprehensively demonstrates the inability of the majority of women to do this. the concept of indirect discrimination does admittedly offer an opportunity for challenging what appears to be even-handed treatment to assess its true effect on women. women can argue that a seemingly neutral requirement works to their disadvantage because of the inability of a sizeable number of them to comply with it. the scope that indirect discrimination affords for challenging institutionalised discrimination has been undermined in the united kingdom by the manner in which the 45. see, e.g., the employment appeal tribunal's decision in berrisford v. woodward schools (midland division) lrd. [1991] i.r.l.r. 247. the employment appeal tribunal apparently took account of the employer's motive in dismissing a pregnant employee when coming to its finding that there had been no direct discrimination. the house of lords has, however, made it plain (james v. easrleigh borough council [1990] i.r.l.r., 288) that motive is irrelevant in relation to direct discrimination. 146 a legal conundrum: the law's treatment of women legislation has been interpreted46 and, more importantly, by the provision in the legislation which allows a practice which undeniably has an adverse impact on women to be justified, for example, on the grounds that it is economically necessary. the very fact that this can happen means that a condition that works to men's advantage will remain in place. in such cases the standard to which women have to aspire will remain a male standard. the equal pay act also appears to work to men's benefit. to derive assistance from the legislation a woman has to demonstrate that she is undertaking work that can be considered the equivalent of that undertaken by a higher paid male colleague in the same employment. the job segregation that is such a feature of women's employment may mean that this is an impossible task. even if a woman can point to a male comparator, the employer can then try to justify the discrepancy in pay on grounds other than those of sex. there are those who dispute the claim that the concepts of direct and indirect discrimination work only to the advantage of women who can adopt a male lifestyle. to quote rubenstein again: "to dismiss equality of opportunity merely as 'formal' equality, of benefit only to those women similarly situated to men, is far too negative a conception of disparate treatment theory. the fundamental direct discrimination principle is that gender (or race) may not be used as a criterion or ground for an employment decision. "47 the problem with this statement is that since the pattern of many women's lives is so very different from those of men they will never find themselves in a position where the anti-discrimination legislation can be of use. even if its aim is to stop gender being used as the basis for an employment decision, and there may be doubts over whether the courts actually apply the law in this manner, many women are never in the fortunate situation where they have the same opportunities as men. where they do have those opportunities all the evidence seems to point to the process of discrimination continuing unchecked. women obviously face a dilemma in determining the legislative strategy which will best secure them equality.48 should they demand to be treated in exactly the same manner as men or should they expect the law to acknowledge the differences 46. e.g., the manner in which the court determines whether a considerably smaller number of women as opposed to men can comply with the condition. a full analysis of how the court has applied the concept of indirect discrimination can be found in morris and non, supra n. 7, chapter 5 and e. ellis, sex discrimination law (gower, 1988). 47. rubenstein, supra n. 1, p. 262. 48. in her essay "difference and dominance: on sex discrimination" in feminism unmodified (harvard univ. press, 1987), p. 32, catherine mackinnon explores the thinking that underlies sex equality law. 147 the denning law journal between the sexes, as already happens in relation to pregnancy?49the problem is that the more women demand that the law should take account of differences the more that is seen as undermining women's claim for equal treatment. in other words, how can equal treatment demand different treatment? viewed in this light the anti-discrimination legislation is bound to be less than a whole-hearted success since by espousing the concept of equal treatment it fails to address the differences which exist between the sexes. indeed, a concept of equality which is based on equal treatment may in reality do women more harm than good. as a matter of history situations have arisen where women have been treated more favourably than men. they are few in number but undoubtedly they do exist. the most familiar of these relates to the age when an individual becomes entitled to their retirement pension. within the united kingdom a woman may be entitled to a pension, and hence to retire, when she reaches her sixtieth birthday but a man may have to wait until he is sixty-five. after a series of cases it has been settled that to have one age (commonly sixty) at which women retire and draw their pensions and another (commonly sixty-five) for men can be discriminatory. 50 the practical consequences of these decisions has been the equalising of pensionable and retirement ages for men and women. in many cases that process of equalisation has ended with women being treated in the same manner as men. in other words, this has been a situation where men have not secured the favourable treatment previously accorded women but have ensured that women no longer enjoy this advantage. indeed the notion that equality requires that men and women be treated in the same fashion has permeated beyond the public sphere of the workplace. rightly or wrongly, it was generally accepted that the welfare of any child might best be served by granting custody to its mother, with its father being allowed reasonable access, after its parents had divorced. that practice has now been abandoned in favour of granting custody to both parents on the basis that it is in the best interests of any child to maintain contact with both its parents after a divorce. leaving aside the psychology of what best suits a child, many commentators feel that the notion of equal treatment and equal rights has been exploited by men in order to advance their case. in so doing the role of the primary caregiver, who is normally the child's mother, is ignored in resolving the issue of custody.51this is yet another instance of how the language of equality can be used to women's disadvantage. 49. employment protection (consolidation) act 1978, sections 31a, 45 and 60. 50. marshall v. southampton and south-west hampshire area health authon'ty (teaching), 152/84 [1986] 1.c.r. 335. marshall determined that to force a woman to retire at 60 when a man need not retire until he was 65 was in breach of the equal treatment directive and hence discriminatory. see now section 3, sex discrimination act 1986. barber v. guardian royal exchange assurance group [1990] i.r.l.r. 240 determined that refusing a man an occupational pension when a woman of the same age would be paid a pension was discriminatory. the benefits represented by a contracted out occupational pension constituted 'pay' within the terms of article 119 which requires that men and women should receive equal pay for equal work. 5!' smart, supra n. 5, pp. 153-157. 148 a legal conundrum: the law's treatment of women if it is correct to argue that the current anti-discrimination legislation does not secure equal opportunities for women then the best solution would simply seem to be to remodel the legislation. the law could be amended to better serve the needs of women if it assessed their treatment from the perspective of whether the behaviour in question had an adverse impact on women. the fact that men were treated in the same manner or that the practice was said to have an economic justification would be irrelevant. legislation along such lines appears unlikely. it would provoke charges that it amounted to positive discrimination in favour of women and discriminated against men. the term 'positive discrimination' has always been anathema in the united kingdom with its underlying implication that an individual is being given access to a benefit that somehow they do not deserve. to treat women in a certain manner simply because they are women and not because of need or merit is regarded as unjust.52 the counter-argument that men have benefited from positive discrimination for centuries, since it is the male standard which is adopted as the norm, is met with disbelief or the response that two wrongs do not make a right. there are those who, faced with the equality/difference argument over antidiscrimination legislation, argue that it is women's subordination to men which explains their lack of progress and that until this subordination is exposed women can hope for little from the law. in short, "an equality question is a question of the distribution of power. "53to tackle inequality it is not sufficient to try to construct laws that accept the existing imbalance of power. instead, the real root of the problem has to be tackled. a writer such as catherine mackinnon who adopts this particular approach dismisses any attempt to "make rules that fit reality". instead she urges criticism of reality and exposure of "that which women have had little choice to be confined to, in order to change it."54 that reality includes not only poor payor the poverty that women experience in old age but also the sytematic abuse that women endure in the shape of domestic violence, rape and pornography. the very fact that women are treated as objects and that their sexuality is regarded as a legitimate means of generating wealth is evidence of the low esteem in which women are held and their lack of power. in short, power belongs to men and as a consequence men have been able to shape the law and the entire legal system in order to reflect their standards. to quote catherine mackinnon once again, the "law sees and treats women the way men see and treat women."55 so the problem is not simply to secure better anti-discrimination legislation but to bring about fundamental changes in the entire legal system and society in general so that they cease to reflect the standards of one particular sex. 52. j. edwards, positive discrimination (tavistock, 1987). 53. c. mackinnon, "difference and dominance: on sex discrimination", feminism unmodified (harvard univ. press, 1987), p. 40. 54. ibid., p. 40. 55. c. mackinnon, "feminism, marxism, method, and the state: towards a feminist jurisprudence", signs, 1983, p. 644. 149 the denning law journal undoubtedly this represents a radical explanation for the law's failure to improve the situation of women in society. discrimination is seen as a process that can extend to every aspect oflife and is not confined to those situations specifically referred to in the anti-discrimination legislation, such as the workplace or the education system. whole areas oflaw, such as those relating to crime or property rights require re-examination in order to deduce whether they do indeed embody male standards. nor should this review be confined to the law's content. the whole mechanism of legal administration may also work to men's advantage. for example, the law's use of the adversarial system whereby each party presents their version of the truth using only those facts that the law considers relevant may work to women's detriment. as one commentator has pointed out: "[w]hat the judge decides is the truth of the matter is not only a function of the persuasive skills of the advocate but is also a product of the judge's own experience of 'reality'. "56as a consequence, the law's much emphasised objectivity may be no more than a "powerful political tool which has served to disguise what feminists have shown to be the often sexist assumptions implicit in the workings of the law."57 many writers associate themselves with this condemnation of the law as reflecting male values. whilst it may provide the key to women's lack of progress it poses a dilemma as to how women should proceed so as to gain the equality that has eluded them. on the one hand, there are those, such as catherine mackinnon, who seem convinced that, for all its imperfections, it is still possible for women to resort to the law. presumably by identifying the true problem women are thereby equipped to demand laws that will truly serve their purposes and will not be deflected by arguments that what they require is unjust. instead, they will be able to counter any such claim with the response that the eradication of male domination is not something over which one should argue. other writers, however, having conceded the law's power to represent itself as embodying an objective truth and to oppress women, do not accept that it is to the law that women must turn in order to secure change. carol smart, for example, criticises catherine mackinnon for placing so much faith in the law: "i agree with mackinnon that law is powerful in silencing the alternative discourse of women, but i see it as far less powerful in transforming society to meet the various needs of all women. "58 instead, smart urges women to resort to non-legal strategies rather than law reform. changes to the law can be taken away or can be interpreted out of existence. what is important is for women to be aware of the law's power to ignore their opinions and to represent itself as objective. once this has been 56. n. naffine, law and the sexes (allen and unwin, 1990), p. 46. 57. ibid., p. 47. 58. smart, supra n. 5, p. 81. 150 a legal conundrum: the law's treatment of women acknowledged then women will recognise the futility of expecting the law to offer a solution to their problems. there are some women, however, who concede that it is unrealistic to claim that the law always works to men's advantage. 59 this view of the law combines feminist as well as socialist elements. whilst conceding the law's masculinity, the point is made that not all men benefit equally from the law. only those men who fit a certain stereotype can extract the maximum benefit. any woman who can fit this stereotype can just as easily take advantage of the legal system. judged on this basis, the law favours a particular class as well as a particular sex. the law is not seen as being so systematic in its approach that it is consistently capable of favouring one sex over another. other factors such as wealth and the possession of property are seen as influencing the law. hence if a woman owns property, though admittedly far fewer women than men do so, the law will protect her interests in preference to a non-property owning man. faced with these numerous explanations of why the law has failed women, it is impossible to state categorically that one rather than another represents the truth. what they all have in common, however, is the notion that the legal system, as it currently exists, is imbued with male (and perhaps middle-class) values. perhaps this is the nearest one can come to offering a solution to the conundrum of the law's treatment of women. that solution demands a vigorous reappraisal of the values which underpin our legal system and the manner in which it is administered. 59. naffine, supra, n. 56. 151 consumer redress an overview sir gordon borrie* a society in which responsible consumers can be sure they deal only with responsible traders is an ideal which is never likely to be fully attained. there are many ways in which those of us charged with protecting the legitimate interests of consumers strive towards this ideal: by promoting legislation, by educating the public, by seeking to influence problem traders, and by prosecuting and taking other enforcement action against those who persistently cause trouble. but it is surely also desirable that worka'ole redress schemes are available for consumers themselves to use when direct contact with the trader fails to resolve their problem. such facilities are one of the elements which go to make up a healthy marketplace where responsible traders can flourish, and the irresponsible can be penalised and deterred. the potential demand for redress is very great. a survey commissioned by the office of fair trading in november 1990showed that, in the previous 12months, over 40 per cent of the adult population had had some cause for complaint about goods or services, some of them about more than one item. this means that each year millions of people have millions of causes for complaint. earlier research 1 suggests that about two thirds pursue their complaints and around half of these are not satisfied with the outcome. i am certainly not suggesting that all unresolved problems are awaiting some form of dispute resolution. nevertheless, it is perhaps worth reminding ourselves of some of the available figures on the use of consumer redress schemes. it has been said that fewer than 12,500 consumer disputes are handled each year by the small claims procedure of the county courts.2 only 1,915 complaints were completed in 1990 by the insurance ombudsman.3 only fifteen hundred complaints were handled by the conciliation section of the retail motor industry federation, and just 42 cases were decided under its arbitration scheme. indeed some of the arbitration schemes offered by consumer codes of practice * q.c., director general of fair trading. this paper is based on a speech delivered at the office of fair trading conference on consumer redress, london, 30 january 1991. 1. su=aries of this research are available from the office of fair trading. 2. ordinary jusrice. legal services and ehecourts in england and wales: a consumer view, national consumer council (1989), p. 287. 3. annual repore of the insurance ombudsman 1990, p. 24. 23 the denning law journal which i have endorsed have never been used. the office of fair trading's survey found that very few people sought advice of any kind. fewer still used one of the existing redress schemes: over the preceding five years only six per cent of the sample had done so. if we accept that there will always be a need for consumer redress schemes we must also ask ourselves: what form should they take? and are there today too many disparate schemes? in an interview i gave in 1978 i said: "what i feel is that many flowers should bloom in the field of suitable small claims machinery, because there probably is no one ideal way."4 the flowers have certainly bloomed. first there is the county court system, and in particular the small claims procedure availablefor claims up to £500 and, from 1july 1991,up to £1,000. the purpose of the procedure is to provide an accessible, quick, cheap and informal means of deciding claims which involve comparatively small sums of money. the review body on civil justice commissioned research into people consumers and traders who had used the small claims procedure. in its 1988report it concluded that for most people the litigation process was likely to be seen as complex, strange and unpredictable.s however, the procedure emerged as substantially sound in that it was able to produce results, without major delay and cost, which satisfied a large number of those who used it. moreover it was workable, in that it produced these results by a process which many litigants were able to operate without undue difficulty. but litigants could be prejudiced by a lack of uniform procedure and by considerable inconsistencies of approach around the country. county court registrars or district judges, as they are now called may adopt very different approaches in how they handle small claims cases. the courts are for the use of everyone with a civil claim of any kind. but over the years various forms of alternative dispute resolution have come into being, either to remedy some of the perceived drawbacks of court action or to provide a redress procedure tailor-made for a particular sector and often benefiting from the specialist knowledge of those administering it. the first of these is arbitration. i have always encouraged the use of arbitration in claims that private consumers have in respect of breach of contract and other civil disputes. nearly all the codes of practice drawn up in consultation with the office of fair trading allow consumers the choice of having their disputes settled by arbitration. i have had two reasons for encouraging arbitration as an alternative to the courts. one is that, despite the evidence that consumers acting as unrepresented litigants are generally 4. law soc. gazette, 28 june 1978. 5. report of the civil justice review body (l.c.d., 1988). fuller materials are to be found in the consultation paper on small claims and the touche ross factual study of small claims cases (l.c.d., 1986). 24 consumer redress an overview well served by the courts, the courts are insufficiently used. part of the blame for this must lie with the fact that the county court far from being the little man's court is the place where the little man gets taken to court. statistically, he or she is more likely to be sued there than to do the suing, and this can be expected to influence public attitudes and expectations of the procedure. my second reason is that because of the inherent flexibility of arbitration it has been possible to adapt it so that it suits the needs of some consumers better than the court procedure does. arbitration under codes of practice recognised by the office of fair trading is usually based on documentary evidence alone, which removes the need for personal attendance and can help speed up the decision and save costs. moreover in some cases it has not just been an alternative procedure. for people wishing to make a claim over the installation of double glazing or a moderately expensive family holiday, for example, it has been the only procedure that was practical because of the low limit for the small claims scheme in the courts. i am aware that arbitration under industry codes of practice has its critics. in december 1990, the office of fair trading commissioned some discussion groups.6 those taking part in the discussions were people who had pursued a complaint beyond the first stage of going back to the retailer or the supplier of a service. the discussions showed that there was very little awareness of arbitration amongst consumers and some felt that the trader would only suggest it if he was likely to win. sadly, and i am sure, wrongly, there was very little expectation of impartiality . one feature of the code of practice schemes is that consumers must first submit their complaint for conciliation by the relevant trade association. trade associations are set up principally to protect the interests of the trade. it is not surprising that very few members of the public believe they will deal sympathetically with a consumer. an arbitrator is of course completely independent of the trader, but it is evident that this fact is not widely understood. public awareness or otherwise of the complaints procedure must also be a factor. i am sure that one reason why the arbitration scheme ofthe association of british travel agents is well used is that it is described in every abt a tour operator's brochure. information is not so readily available to members of the public dealing with other kinds of business, and often the redress procedures are available but no one makes use of them. the third flower to bloom is the institution of the ombudsman. the first ombudsman, appointed in 1967, was the parliamentary commissioner for administration (commonly called the parliamentary ombudsman), who considers complaints, filtered through members of parliament, that a government department has caused injustice as a result of maladministration. the same individual acts as the health services ombudsman. later, local government ombudsmen were appointed, with more limited powers. these ombudsmen 6. a summary of the findings of the discussion groups is available from the office of fair trading. 25 the denning law journal seemed to meet a real demand from the public. in 1981 the insurance industry created an ombudsman scheme which can be used by private consumers in their relations with insurance companies who subscribe to the scheme. the banks took a similar initiative in 1986. in the same year the building societies act required the setting up of an ombudsman to deal with complaints against all building societies. in 1990 a corporate estate agents ombudsman scheme was established by fifteen of the largest chains in the industry. two more statutory ombudsmen were also created. the lord chancellor appointed a legal services ombudsman to consider the handling of complaints by the bar, the law society and any other legal professional body. and the secretary of state for social security appointed a pensions ombudsman, who will investigate complaints of maladministration, or disputes of fact or law, brought by individuals against the trustees or managers of a personal or occupational pension scheme. every national newspaper seems to have an ombudsman now, and i am aware that some have already upheld complaints by readers against the newspaper which appointed them. there is even a timeshare company which has appointed a panel of ombudsmen not before time, some may think! indeed, the independent ran a cartoon showing serried ranks of businessmen being addressed by a man wielding a megaphone. the caption read "hands up, please, anybody who isn't an ombudsman."7 i have always thought it a major plus point for the ombudsmen that they publish annual reports. these are well reported in the press and they contain many useful observations on how the industry should be conducting itself. the discussion groups of consumers commissioned by the office of fair trading were particularly interesting on the subject of ombudsmen. 'the ombudsman' and in the popular imagination there is evidently only one is thought of as a wellrespected and impartial person. but he is also a remote, mysterious figure. people were uncertain who he was, what he did, or how they could find him. there are other signs that all may not be well. the first unit trust ombudsman resigned after five months. the second found that his scheme crumbled away beneath him. moreover the term 'ombudsman' is being applied to people operating very different kinds of scheme with different rules. as ombudsmen proliferate, and more people make use of them, consumers' experience of one scheme will be likely to influence their expectations from the others. but they may be misled. for example, building societies may, in certain circumstances, refuse to comply with a decision by their ombudsman. this could come as a shock to someone used to the binding nature of decisions by one of the other ombudsmen. ombudsmen are sometimes criticised when their decisions favour the company rather than the consumer. one example of this is the disputes over so-called 'phantom' withdrawals from automated teller machines. these are the most common type of complaint dealt with under both the banking and the building societies schemes, and complainants have been particularly frustrated that the 7. the independent" 23 june 1990. 26 consumer redress an overview ombudsmen have rarely found in their favour in these cases. often further investigation has shown that the withdrawal was all too real, and was made by a relative or friend of the cardholder without his or her knowledge. both ombudsmen have been at pains to explain in their annual reports that in these circumstances the cardholder is liable and that they cannot undo the legal effect of the contract between the cardholder and the bank or building society. criticism of an ombudsman's decision often arises from an expectation, perhaps fostered by the media, that an ombudsman is a consumer champion and must always give consumers the benefit of the doubt. this makes it especially interesting that the decisions of the second insurance ombudsman, dr julian farrand, have been more favourable to consumers than those of the first, although both insurance ombudsmen operated within the same scheme. dr farrand's more interventionist stance has led to mutterings of protest from the insurance industry. these made the new law journal comment that there appeared to be "a basic, although probably widespread, misunderstanding of the purpose of such operations on the part of the practitioners who provide them. ombudspersons, they seem to believe, are a jolly good thing to have when telling the public how well they will protect their interests but tum into a major-league nuisance when they actually start doing so."8 recently we have seen a new blossom of a different sort, the regulators of the public utilities which have been privatised. so far there are four of them, dealing with telecommunications, gas, water and electricity. dispute resolution is of course not their primary function, but they do have a statutory duty to protect the interests of the customers of the utility or utilities which they regulate and they also have powers of enforcement. different legislation has prescribed different procedures for handling consumers' complaints. the director general of electricity supply and his regional offices can only deal with complaints about the generation, transmission, distribution and supply of electricity. the regional offices are supported by local consumers' committees which are concerned with the distribution and supply of electricity. neither can deal with complaints about such activities as the supply and installation of appliances by the electricity companies. customers of british gas, on the other hand, can seek help from a statutory body with complaints about all its activities. as a general rule, the director general of gas supply deals with disputes up to and including the gas meter. the gas consumers council, which does not have enforcement powers, can deal with disputes arising on the other side of the meter for example, the retailing, installation and servicing of appliances by british gas and, as the figures in the conference pack show, these are a healthy proportion of all the complaints and enquiries which it considers. the director general of telecommunications takes the lead on complaints about the suppliers of telecommunication services, although he works closely with four national advisory committees. but the 8. n.l.j., 18 may 1990. 27 the denning law journal director general of water services has established regional customer service committees which handle the majority of complaints from water consumers; only a few, including alleged breaches of the water company's licence, are dealt with by the director general. i do not have a view on which of these ways of handling disputes against public utilities is the best. perhaps each separate industry really does require a separate procedure. the latest flower in the field of dispute resolution is mediation. like arbitration this was originally a means for resolving disputes between businesses but again like arbitration it is a flexible procedure and it could be adapted for dealing with consumer disputes. mediation is an attempt to resolve a dispute in a way which satisfies both parties. a mediator will hold meetings with both sides, together and separately, in an effort to reach an agreement. mediators may propose solutions, but they cannot impose them. the system is essentially conciliation conducted not by a trade association but by an independent third party, and it satisfies the desire expressed by many consumers to put their case in person. moreover, it compresses what can be a long drawn-out process into a single session. however, much depends on the qualities of the mediator. it is also possible that the parties might come to the end of the process without having reached an agreement, and would probably then have to proceed to litigation. finally there is the question of cost. mediators will need to show the same willingness that arbitrators have shown to deal with consumer disputes at rates which consumers can afford. over the years, i have taken the view that it was healthy and desirable that a variety of dispute settlement schemes should be available for consumer disputes. however, one of the subjects that needs to be considered is whether it is in the public interest that such a multiplicity of redress schemes as now exist should continue indefinitely, and perhaps proliferate even more in future. does a choice of avenues for redress bring more problems than benefits for consumers? should the administrators of the schemes be learning more from each other about their strengths or weaknesses? if so, how should they do this? should there be an established forum for consumer dispute resolution where those involved can regularly meet and is there a need for more research? another question to consider is whether in the long term there should be a single consumer redress scheme, or at least a single point of entry where everyone can lodge a dispute regardless of its subject matter? such a proposal would be a fairly radical innovation in the united kingdom, and the question of how to finance it would be a particularly tough nut .to crack. my aim is to have more consumers with a legitimate complaint against a trader seeking redress, because that is their right and because effective redress procedures act as a curb on the wilder excesses of problem traders. this will only happen when consumers are presented with a scheme, or schemes, which they feel confident about using. in my experience, consumers gain more confidence if redress schemes give a high priority to the following criteria. 28 consumer redress an overview (i) redress should be inexpensive. this does not necessarily mean it should be free, but consumers should not be deterred from pursuing a complaint by the amount of the application fee, or by the fear that they might incur more expense if they lose. it is reasonable that if they win the trader should pay their costs, as well as any compensation they may have been awarded. it is not reasonable that if they lose their case they should also risk paying the costs of the trader, who in many cases will have incurred the expense oflegal advice. (ii) redress should take full account of consumer's lack of experience. for most consumers this will be a once-in-a-lifetime battle. they are taking on someone whom they perceive to be more powerful and who will in all probability be more experienced at litigation, less troubled by delays, and more likely to have the benefit of legal advice and representation. at the most practical level, this means that litigants should be able to fill in application forms unaided. information should be written in plain english, preferably with versions available in the languages spoken by the main ethnic minorities in this country. officials whether in the county courts, trade associations or in an ombudsman's office should be trained to advise consumers on how best to present their case, so that the less literate or less confident do not suffer any disadvantage. but perhaps more fundamental reforms are also needed. consumers may assume that the arbitrator, registrar, or ombudsman is more likely to sympathise with the trader, especially if the trader is responding to letters through a lawyer, because they all seem to corne from the same social class or educational background or know one another. is there a need for a forum specifically designed to be used by consumers? this is the kind of service which the manchester arbitration scheme and the london small claims court provided in the 1970s.they broke new ground by attempting to combine oral hearings with fast, cheap, informal and interventionist procedures. it can be intimidating even for the most confident of consumers to pursue a dispute, on a 'do-it-yourself basis, through a court which is largely accustomed to dealing with professional representatives. is it right that traders can be legally represented at a hearing when consumers are not? how should district judges adapt to the new right of consumers to be accompanied by a lay helper such as a trading standards officer or a citizens advice bureau worker, or even a friend or neighbour? and, most importantly, how can district judges arbitrating on small claims be encouraged to be more interventionist? (iii) redress should be the consumer's own choice. first, consumers should be able to choose which redress scheme to use, and there should be no attempt to force them to use one scheme rather than another. an agreement which attempts to force arbitration on consumers is no longer enforceable, following the enactment of the consumer arbitration agreements act 1988. 29 the denning law journal but my officials still hear of cases where the trader tells consumers with whom they are in dispute that arbitration is the next step, without first directing them to an adviser who will provide information about the options so that they can make this decision for themselves. secondly, it is important that no obstacle should be placed in the way of consumers who wish to use a redress scheme. some of the schemes offered by professional bodies allow the member to refuse to be taken to arbitration. this is surely a case of giving with one hand and taking away with the other. (iv) redress should be speedy. it can take six months or more for a complaint to be dealt with by arbitration, through the small claims procedure of the courts or under a code of practice. consumers might be prepared to tolerate this wait were it not that they first have to wait for the trader to respond to their initial complaint and, where conciliation is involved, for a trade association to attempt a settlement. the national consumer council found an average delay, for conciliation and arbitration together, of 45 weeks for abta's scheme and of 54 weeks for the scheme operated by the glass and glazing federation.9 (v) redress should be enforceable. redress schemes supported by a trade association generally have a clear advantage here, because pressure to pay awards will usually be placed on a delinquent trader by the association. it can come as a shock to consumers who have won their case in court to find that their battle is not necessarily over, and that they now have to enforce their award. (vi) redress must be well-publicised. there is no point in having a redress scheme, however good, if its existence is not known to the people it is created for. to quote one person taking part in the discussion groups commissioned by the office of fair trading: "the main problem is finding out where they all are. how do you go about finding them?" in my view traders belonging to a trade association which offers a redress scheme should always give details of the scheme to a dissatisfied complainant. i should also like to see an effective publicity campaign announcing the increase in the upper claims limit for small claims and other reforms to the county court procedures. i have looked principally at the redress schemes which are there for consumers to use, but i believe there must also be changes in the attitudes of consumers themselves. i am concerned that so few members of the public are prepared to press for their right to redress, and in particular that they are reluctant to use the courts. every day my office receives letters and telephone calls from members of the public asking me to intervene in what are essentially civil disputes, where i have no powers to act. quite often, it is apparent that they know they are entitled to 9. our of gourr: a consumer view of rhree low-cosr rrade arbirrarion schemes (national consumer council, 1991), p. 25. 30 consumer redress an overview go to court, or to use another means of redress, but that they do not think this is feasible. what are the reasons for this? do they think the courts are too expensive? or just too difficult? i don't know, but this view of the courts is certainly not shared by all those who have used them. one person taking part in the discussion groups which my office commissioned said of the small claims procedure: "i was shocked at how easy it was, i couldn't believe it." somehow the courts, and all the other consumer redress schemes, must get this message over to the public. i raise these issues, not because i have an all-embracing solution to flourish i don't but because i am concerned that consumers are being denied their basic . rights, either through their own ignorance or reluctance to pursue complaints or through the inadequacies of current redress procedures. consumer protection legislation can only be effective if the rights it provides are enforced and no amount of civil (as opposed to criminal) legislation will succeed if consumers are unaware of it, or unwilling or unable to use it. greater publicity of existing rights and avenues of redress will help, but we need further work on what consumers need from redress schemes, whether that need is being met and what should be done to improve matters in the future. 31 121 denning law journal 2018 vol 30 special issue pp 121-175 change the constitution? interpretation, (mis)calculation, wrongs righted or reaction & reiteration jocelynne a. scutt* ‘the arc of the moral universe is long, but it bends toward justice.’ martin luther king abstract since the united states adopted a written constitution as a consequence of the war of independence, it is fair to say that most western democracies with written constitutions have taken some guidance from that founding document. inevitably, a key provision for any written constitution is ‘how can it be amended’. even where there is an unwritten constitution (as for the united kingdom, aotearoa/new zealand and israel), the ‘rules’ established by convention or custom or some other means cannot be immutable: the passage of time or changing ideas require some means of altering or updating the rules. changing a constitution is a matter of law, yet one inescapably imbued with politics. this article explores the way constitutional change has come, and how the rules have worked, in australia (the 1951 referendum to ban the australian communist party – unsuccessful, and the 1967 referendum to recognise rights of indigenous australians – successful) and the united states (the equal rights amendment – situation ongoing), with a foray into the referendum process in united kingdom (the 2017 ‘brexit’ vote). it explores, too, the ‘change’ to a constitution where there is no change to the words of the document, but a change in interpretation – this in the context of canada in 1929. there, consistent with judgments in aotearoa/ new zealand, australia, the united kingdom and the united states, the canadian supreme court interpreted ‘person’ as appearing in the north america act as not including women, denying women any entitlement to be appointed to the canadian senate. as related here, women were finally acknowledged as ‘persons’ when the privy council pronounced this to be so, an unanticipated outcome from a judicial body considered by both canada and australia to be so hidebound as not to be ‘right’ as the final court of appeal for britain’s former colonies. * senior teaching fellow at the university of buckingham, cambridgeshire county councillor and member of the labour party and australian labor party. 122 change the constitution? interpretation, (mis)calculation, wrongs righted or reaction & reiteration keywords: australian constitution; canadian constitution; united states constitution; brexit referendum; united kingdom referendums; ‘person’ not including women; ‘person’ cases; australian communist party referendum 1951; equal rights amendment (era); australian aborigines referendum 1967; provisions for amending constitutions; constitutional amendments; the politics of constitutional change; power to change constitutions; written constitutions; unwritten constitutions. introduction the australian, canadian and united states constitutions stand as testimony to colonisation, colonialism and empire. although the united states freed itself of colonial rule through winning the war of independence, it did not free itself of british law and legal notions. the united states sees its constitution as anchored in magna carta. albeit the notion adhered to by american jurists is that its origins are magna carta 1215, it appears that magna carta 1225 is the ‘true’ source.1 as for australia and canada, having become independent through agreement or the relaxation of colonial rule, not through war or conflict, british control or influence in constitutional matters is readily apparent. the british north america act set the scene for canadian self-rule,2 whilst australia’s constitution came from constitutional conventions where delegates from the various colonies were voted into delegate positions – raising the question of who could vote, who could be a delegate.3 the outcome in any event is that for canada, the british north america 1 library of congress, ‘magna carta and the us constitution: magna carta – muse and mentor’ <https://www.loc.gov/search/500/> accessed 1 december 2018; martin kelly, ‘importance of the magna carta to the us constitution’, (history and culture) <https://www. thoughtco.com/why-magna-carta-key-document-usa-104638> accessed 1 december 2018; nicholas vincent, magna carta – origins and legacy (university of chicago press 2016). 2 british north america act 1867 (uk) <http://www.legislation.gov.uk/ukpga/vict/ 30-31/3/contents> accessed 1 december 2018. 3 catherine helen spence, the first woman in australia to stand for public office, famously stood for election despite contentions that as a woman she lacked status to do so. south australian women gained the right to vote and stand for parliament in 1894. they argued that they should have the right to stand and vote in the ballots for participation in the constitutional conventions. although she did well, ultimately spence garnered insufficient votes: she came twenty-second of thirty-three candidates: catherine helen spence, ‘constitution for a nation’ <http://www.naa.gov.au/collection/explore/federation/constitution-website/stories/the-people/ pods/catherine-helen-spence-1897/index.html> accessed 1 december 2018; see generally parliament of australia, records of the australasian federal conventions of the 1890s <https:// www.aph.gov.au/about_parliament/senate/powers_practice_n_procedures/records_of_the_ australasian_federal_conventions_of_the_1890s> accessed 1 december 2018. the denning law journal 123 act 1867 was passed by the united kingdom parliament. in 1982 in canada it became the constitution act, when passed by the canadian parliament.4 however the australian constitution is an act of the united kingdom parliament alone.5 this raises questions of its status in light of the principle of parliamentary sovereignty and the inability of united kingdom parliaments to bind their successors.6 even with canada, according to united kingdom parliamentary sovereignty the british north america act 1867 could theoretically be repealed or independently amended by the united kingdom parliament.7 yet unlike the australian situation, at least the constitution act 1867 would remain as the foundation of canada’s constitution. not so for australia. the australian constitution act 1900 problem arises with the statute of westminster 1931. the latter is, however, generally accepted as existing ‘in perpetuity’, although this is inconsistent with dicey’s principles: • that parliament may pass whatever law it desires; • that no acts are ‘constitutional’ or have a status capable of being classed as unable to be repealed or amended, which would overrule the sovereignty of parliament; • that no parliament has power to bind its successors.8 probably, if the united kingdom parliament were to repeal the australian constitution act, the australian parliament would itself (endeavour to) pass the act (as happened in canada in 1982) – although this would raise the whole question of its status and content. there would be robust debates emanating from women members of parliament, activist women and women’s groups, from indigenous australian members, activists and groups, and those of minority ethnic background – for no women or indigenous australians were delegates to the 1890s constitutional conventions and most, if not all, were of conventional caucasian 4 see government of canada, ‘constitution acts 1867–1982’ (justice laws website) <https://laws-lois.justice.gc.ca/eng/const/> accessed 1 december 2018. 5 commonwealth of australia constitution act 1900 (uk). 6 a v dicey in j w f alison (ed) introduction to the study of the law of the constitution (oup 2013). 7 nick hobson, ‘is our constitution safe’ <https://www.statusquo.org/aru_html/html/ const_safe.html> accessed 1 december 2018; tony blackshield and george williams, australian constitutional law and theory (federation press 1998). 8 a v dicey (n 6). 124 background.9 whether under those circumstances the australian constitution act would pass through the australian parliament is a real question. would this leave australia in limbo? it would at least be a catalyst for revisiting the basic law, although whether agreement could be reached (bearing in mind parliamentary and public debates and disagreements on constitutional matters) is an open question.10 that ‘history’ requires attention in this context leads into the subject of this article – namely the way in which constitutions once in force can be amended, the process of amendment and the success or failure of any proposals for change. it also adverts to the issue of what is ‘success’, what ‘failure’: that is, if an amendment is adopted whether by the people through referendum or the legislative bodies by majority vote, or by whatever other method is chosen, or if it is defeated, is the adoption ‘good’, the defeat ‘bad’? this depends upon the nature, content and proposed effect of any amendment and, as history (again) shows, proposals for change can be positive, negative or problematic. this can be explored in the context of the canadian, united states and australian examples. for canada, ‘are canadian women persons? the supreme court of canada versus the privy council’.11 for australia, ‘fighting the red peril – the high court and the people 9 see larissa behrendt, ‘indigenous rights and the australian constitution – a litmus test for democracy’ <https://openresearch-repository.anu.edu.au/bitstream/1885/42068/2/behrendt. pdf> accessed 1 december 2018; george williams, ‘a guide to our constitution’ (national archives of australia) <http://www.naa.gov.au/collection/publications/papers-and-podcasts/ australian-constitution/professor-george-williams.aspx> accessed 1 december 2018; see also peter hanks and deborah cass, australian constitutional law: materials and commentary (butterworths 1999); k c wheare, the constitutional structure of the commonwealth (oxford/ clarendon press 1960); quick and garran, the annotated constitution of the australian commonwealth (1901 edn reprinted legal books 1995); luke beck, religious freedom and the australian constitution – origins and future (routledge 2018). 10 within the indigenous australian community, for example, there is considerable dissent from some as to whether the constitution has any relevance at all, as impinging on their sovereignty, whilst others see it as vital to include indigenous australians in the constitution. see jocelynne a. scutt, ‘subverting or affirming indigenous rights – the australian problem writ large’ in sarah sargent and jo samanta (eds), indigenous rights under the un declaration on the rights of indigenous peoples (university of buckingham press 2019). whether or not australia should become a republic could also be anticipated as creating insuperable difficulties, bearing in mind the arguments surrounding the 1999 republic referendum: australian electoral commission (aec), 1999 referendum report and statistics, 24 october 2012 <https://www.aec.gov.au/elections/referendums/ 1999_referendum_reports_statistics/> accessed 28 november 2018. 11 see edwards v ag of canada (reference re the meaning of the word ‘persons’ in section 24 of the british north america act) [1928] scr 276; edwards v. ag of canada [1929] ukpc 86; [1930] ac 143; edwards v. ag of canada [1930] ac 124; and see further below. change the constitution? interpretation, (mis)calculation, wrongs righted or reaction & reiteration the denning law journal 125 versus the government’,12 and ‘can constitutionally entrenched racism be undone? humanity speaking in the voice of humanity.’13 for the united states, ‘are us women equal? wanted, three more states.’14 referendum rules and precedents united kingdom – yet before addressing principles governing constitutional change in canada, the united states and australia, a digression into the united kingdom position is instructive. from 2016 through to 2019 and likely beyond,15 12 see australian communist party v commonwealth (‘communist party case’) [1951] hca 5, (1951) 83 clr 1; the communist party dissolution act 1950 (cth); ‘the communist party case 65 years on’ (rule of law institute of australia, 9 march 2016) <https://www.ruleoflaw. org.au/65th-communist-party-case/> accessed 15 november 2018; and see further below. 13 see parliamentary library, ‘the 1967 referendum’ parliament of australia <https:// www.aph.gov.au/about_parliament/parliamentary_departments/parliamentary_library/ flagpost/2017/may/the_1967_referendum> accessed 15 november 2018; ‘the 1967 referendum’ national library of australia <https://www.nla.gov.au/research-guides/the1967-referendum> accessed 15 november 2018; and see further below. 14 see this day in history, ‘march 22, 1972 equal rights amendment passed by congress’ history <https://www.history.com/this-day-in-history/equal-rights-amendment passed-by-congress%3e%20accessed> accessed 12 november 2018<this url “<https:// www.history.com/this-day-in-history/equal-rights-amendment-passed-by-congress% 3e%20accessed” is not working.>; joan hoff wilson, law, gender and injustice: a legal history of u.s. women (nyu press 1991); inae oh, meryl steep is pushing congress to finally revise the equal rights amendment (mother jones, 24 june 2015) <http://www. mot her jones.com /m i xe d-me d ia /2 015/0 6/mer yl-st r e ep cong r esse qu a l-r ig ht samendment> accessed 15 november 2018; see further below. 15 kenneth armstrong, brexit high court ruling on article 50 explained (centre for european legal studies, university of cambridge) <https://www.cam.ac.uk/research/ news/brexit-high-court-ruling-on-article-50-explained> accessed 1 june 2018; ‘eu referendum and brexit – analysis’ (oxford and brexit, university of oxford) <http:// www.ox.ac.uk/news-and-events/oxford-and-brexit/brexit-analysis>accessed 1 december 2018; davor jancic, ‘why the european court of justice isn’t going away’ (brexit? lse) <http://blogs.lse.ac.uk/brexit/2017/04/26/why-the-european-court-of-justice-isnt-goingaway/> accessed 1 december 2018; raphael hogarth, brexit and the european court of justice (institute for government, june 2017) <https://www.instituteforgovernment.org. uk/sites/default/files/publications/ifg_brexit_euro_court_justice_web.pdf> accessed 1 december 2018; ‘brexit court case could “lead to disaster” eu lawyers warn’ bbc news (27 november 2018) <https://www.bbc.co.uk/news/uk-scotland-scotland-politics 46345287> accessed 1 december 2018); ‘eu judges to rule on brexit on eve of may’s crucial vote’ reuters – world news <https://www.reuters.com/article/us-britain-eucourt-iduskbn1o50qr> accessed 6 december 2018. 126 the united kingdom parliament and the people have laboured under the lead-up to and the consequences of the brexit referendum.16 as an election promise prior to the 2015 general election, the (then) prime minister, david cameron, bowed to the anti-european unionists: should the conservatives win government, he affirmed, a referendum would be held to determine whether the country would leave or remain in the european union.17 then, having won the election and become prime minister, so confident was he and his like-minded colleagues18 of a ‘yes – remain’ vote, rather than a ‘no – leave’ majority, he approved a process ill-thought out, if at all, with no safeguards (such as a required majority of two-thirds for ‘out’, for example, or for a majority ‘out’ for each country of the union – england, scotland, wales and northern ireland).19 approving of a referendum process upon such a crucial matter, when the united kingdom is so firmly wedded to its representative parliamentary system, could be considered as surprising in itself by countries where the formulae for constitutional amendment outline clear rules providing certainty as to the requirements of a ‘vote’ necessary to sanction change. certainly united kingdom referendum precedents exist not only in relation to devolution and the eu’s predecessors20 but whether there should be a mayor of london, the more recent 2010 referendum on whether to change from the ‘first past the post’ electoral system to the ‘alternative vote’, and the question of scotland’s 16 krishnadev calamur, ‘global – the brexit campaign: a cheat sheet’ (the atlantic, 23 june 2016) <https://www.theatlantic.com/international/archive/2016/06/uk-brexit-guide/ 482730/> accessed 1 december 2018; richard white, ‘time to campaign for a no-deal brexit’ (the conservative woman, 21 august 2018) <https://www.conservativewoman. co.uk/time-to-campaign-for-a-no-deal-brexit/> accessed 1 december 2018; ‘brexit – best for britain launches campaign for another referendum’ bbc news (8 june 2018). <https:// www.bbc.co.uk/news/uk-politics-44413526> accessed 1 december 2018. 17 ‘david cameron promises in/out referendum on the eu’ bbc news (20 january 2013) <https://www.bbc.co.uk/news/uk-politics-21148282> accessed 1 december 2018; nicholas watt, ‘eu referendum: in/out choice by end of 2017 cameron promises’ the guardian (23 january 2013) <https://www.theguardian.com/politics/2013/jan/22/eu referendum-2017-david-cameron> accessed 1 december 2018. 18 european union referendum act 2015 (uk); political parties, elections and referendums act 2000 (uk). 19 this is akin to the australian provision, see below. 20 united kingdom parliament, previous referendums in the uk <https://www.parliament. uk/get-involved/elections/referendums-held-in-the-uk/> accessed 5 november 2018: 8 march 1973: northern ireland – northern ireland sovereignty referendum on whether northern ireland should remain part of the united kingdom or join the republic of ireland (yes to remaining part of the uk); change the constitution? interpretation, (mis)calculation, wrongs righted or reaction & reiteration the denning law journal 127 independence.21 however, putting forward a referendum without bearing in mind the volatility of the electorate and the strong indicators of anti-eu forces built up over the years by ukip’s relentless campaigning and tabloid and sensationalist media scaremongering – particularly against migration of refugees and asylum seekers escaping wars, and free movement bringing a wide range of eu citizens to the united kingdom,22 proved unwise. the 2010 general election had seen a vote so indecisive that a coalition of conservative and liberal democrats had to be cobbled together to 5 june 1975: uk – membership of the european community referendum on whether the uk should stay in the european community (yes); 1 march 1979: scotland – scottish devolution referendum on whether there should be a scottish assembly (40 per cent of the electorate had to vote yes in the referendum, although a small majority voted yes this was short of the 40 per cent threshold required to enact devolution); 1 march 1979: wales – welsh devolution referendum on whether there should be a welsh assembly (no); 11 september 1997: scotland – scottish devolution referendums on whether there should be a scottish parliament and whether the scottish parliament should have tax varying powers (both referendums received a yes vote); 18 september 1997: wales – welsh devolution referendum on whether there should be a national assembly for wales (yes); 7 may 1998: london – greater london authority referendum on whether there should be a mayor of london and greater london authority (yes); 22 may 1998: northern ireland – northern ireland belfast agreement referendum on the good friday agreement (yes); 3 march 2011: wales – welsh devolution referendum on whether the national assembly for wales should gain the power to legislate on a wider range of matters (yes); 5 may 2011: uk – referendum on whether to change the voting system for electing mps to the house of commons from first past the post to the alternative vote (no, first past the post will continue to be used to elect mps to the house of commons); 18 september 2014: scotland – referendum on whether scotland should become an independent country (no, the electorate voted 55 per cent to 45 per cent in favour of scotland remaining within the uk). 21 see electoral reform society, ‘first past the post’ <https://www.electoral-reform.org. uk/voting-systems/types-of-voting-system/first-past-the-post/> accessed 5 november 2018; electoral reform society, ‘voting systems’ <https://www.electoral-reform.org.uk/ voting-systems/> accessed 5 november 2018. 22 see lse european institute, free movement of persons and migration – report of the hearing held on 21st january 2016, lse commission on the future of britain in europe, eiko theilemann (lse) and daniel shade (lse), rapporteurs, <http://www.lse.ac.uk/ europeaninstitute/ lse-commission / hea ring4---free-movement-of-persons-&migration-report.pdf> accessed 1 december 2018. 128 run the country. next, the 2015 general election saw a conservative government returned with the slimmest of majorities. then the 23 june 2016 eu referendum vote generated a 72.2 per cent turnout resulting in 48.1 per cent remain (16,141,241 votes), 51.9 per cent leave (17,410,742 votes).23 this was followed by squabbling, court challenges,24 cabinet resignations and reinstatements, mixed messages from various eu identities, and increasingly large marches seeking to pursue a ‘remain’ agenda, arguing for a ‘people’s vote’ which its proponents apparently believed, confidently, would result in a turn-around of ‘leave’ into ‘remain’.25 this is not to say that the referendum process necessarily works without some dissatisfaction in countries like the united states and australia, with written constitutions and clear guidelines for amendment. however, the guidelines do mean that outcomes have a relatively stable acquiescence and controversy is generally directed largely at the substantive issue rather than the mechanism by which change is brought about.26 in the united states, the requirement that not only the us congress agree to the proposal going forward, but that each state legislature has a stake in the outcome with the vote being that of elected representatives via their legislatures rather than the population at large, provides opportunities for debate within these forums, with people lobbying their representatives. this avoids the instability that has proven to be the united kingdom outcome, generated by people ‘in the raw’ having the say, without any ‘rule’ beyond a bare majority.27 similarly the australian and canadian provisions enable structured debate and effective involvement at state and provincial levels. the room seems open for debate in the united kingdom as to how future referendums might be fashioned, to avoid the 23 see the electoral commission, ‘eu referendum results’ <https://www. electoralcommission.org.uk/find-information-by-subject/elections-and-referendums/pastelections-and-referendums/eu-referendum/electorate-and-count-information> accessed 5 november 2018. 24 r (on the application of shindler and anor) v chancellor of the duchy of lancaster and anor [2016] uksc 2016/0105; r (on the application of miller and anor) v secretary of state for exiting the european union [2017] uksc 5, on appeals from [2016] ewhc 2768 (admin) and [2016] niqb 85. 25 see for example richard elkins, ‘the legitimacy of the brexit referendum’ (uk constitutional law society) <https://ukconstitutionallaw.org/2016/06/29/richard-ekinsthe-legitimacy-of-the-brexit-referendum/> accessed 5 november 2018. 26 see further this article. 27 the uk’s membership of the european union generated the founding of at least two political parties with the direct aim of objecting to eu membership and reversing the decision to join and subsequent referendum (1973) to remain: referendum party (founded by james goldsmith in the 1990s) and ukip (united kingdom independence party) which outlasted its rival and remains in existence (albeit a shaky one) despite the ‘out’ or change the constitution? interpretation, (mis)calculation, wrongs righted or reaction & reiteration the denning law journal 129 public expression of being ‘sold out’ on the part of the ‘remainers’, agitation for another vote – surely generating another round of agitation if this time around those voting ‘stay in’ were to win. there is no guarantee that closeness of the vote that led to this would not be replicated. canada – pre-patriation of the constitution in 1982, amendments to canada’s constitution required amendment to the british north america act which contained no provisions for its amendment. changes came through the united kingdom parliament (as the ‘imperial parliament’) and were themselves entitled british north america acts.28 the canadian federal government, for the house of commons and senate, issued an address to the british government requesting amendment. this address included a resolution setting out the amendments requested. the british parliament passed them, generally with little or no debate. now part v of the canada act 198229 contains amendment provisions namely sections 38–49 setting out ways in which the constitution can be amended. section 38 contains the ‘general amendment procedure’ or ‘7+50 formula’, requiring adoption of identical resolutions passed by the house of commons, the senate and two-thirds or more of the provincial legislative assemblies representing at least 50 per cent of the national population.30 section 42 lists matters covered by the general ‘leave’ vote winning. see neil carter and others, ‘europe, goldsmith and the referendum party’ parliamentary affairs (1998) 51(3) 470–85; richard davenport-hines, goldsmith, sir james michael, oxford dictionary of national biography (oup 2004); alex hunt, ‘ukip: the story of the united kingdom independence party’s rise’ bbc news (21 november 2014) <https://www.bbc.co.uk/news/uk-politics-21614073 accessed 5 november 2018; catherine macmillan, ‘the european union as a totalitarian nightmare: dystopian visions in the discourse of the uk independence party (ukip)’ (2016) 13 romanian journal of english studies 1; simon usherwood, ‘the uk independence party: the dimensions of mainstreaming’ in tijtske akkerman, sarah de lange and matthijs rooduijn (eds), radical right-wing populist parties in western europe: into the mainstream (routledge 2016). 28 british north america act 1867 (uk). 29 canada act 1982 (uk). 30 section 38 is headed ‘general procedure for amending constitution of canada’, section 38(1) providing: an amendment to the constitution of canada may be made by proclamation issued by the governor-general under the great seal of canada where so authorised by: (a) resolutions of the senate and house of commons; (b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least 50 per cent of the population of all the provinces; 130 amendment procedure, being: a. the principle of proportionate representation of the provinces in the house of commons prescribed by the constitution of canada; b. the powers of the senate and the method of selecting senators; c. the number of members by which a province is entitled to be represented in the senate and the residence qualifications of senators; d. subject to paragraph 41(d),31 the supreme court of canada; e. the extension of existing provinces into the territories; and f. the establishment of new provinces. a constitutional amendment affecting one province only requires assent of the canadian parliament and the relevant province’s legislature.32 some constitutional amendments require unanimous consent of all provinces plus the house of commons and senate, the ‘unanimity formula’ covering: a. the office of the queen, the governor-general and the lieutenant governor of a province; b. the right of a province to a number of members in the house of commons not 31 section 41 addresses ‘amendment by unanimous consent’, providing that amendment may be made by proclamation issued by the governor-general under the great seal of canada where authorised by resolutions of the senate and house of commons and of the legislative assembly of each province, relating to: e+w+s+n.i. (a) the office of the queen, the governor-general and the lieutenant governor of a province; (b) the right of a province to a number of members in the house of commons not less than the number of senators by which the province is entitled to be represented at the time this part comes into force; (c) subject to section 43, the use of the english or the french language; (d) the composition of the supreme court of canada; and (e) an amendment to this part. 32 section 43 ‘amendment of provisions relating to some but not all provinces’, provides: an amendment to the constitution of canada in relation to any provision that applies to one or more, but not all, provinces, including (a) any alteration to boundaries between provinces; and (b) any amendment to any provision that relates to the use of the english or the french language within a province, may be made by proclamation issued by the governorgeneral under the great seal of canada only where so authorised by resolution of the senate and house of commons and of the legislative assembly of each province to which the amendment applies. change the constitution? interpretation, (mis)calculation, wrongs righted or reaction & reiteration the denning law journal 131 less than the number of senators by which the province is entitled to be represented at the time the constitution act 1982 came into force; c. subject to section 43,33 the use of the english or the french language; d. the composition of the supreme court of canada; and e. changing the amendment procedure itself: section 41 others can be made by proclamation in certain circumstances, as section 43 sets out. further, the senate or house of commons, or a provincial legislative assembly can initiate amendment procedures under sections 38, 41, 42 and 43, whilst amendments can be made without a resolution of the senate. in such cases, constitutional amendments under sections 38, 41, 42 or 43 may be made without the senate’s resolution authorising proclamation: … [i]f, one hundred and eighty days after the adoption of the house of commons of a resolution authorizing its issue, the senate has not adopted such a resolution and if, at any time after the expiration of that period, the house of commons again adopts the resolution: s. 47(1). the 180-day period does not include ‘any period when parliament is prorogued or dissolved: s. 47(2)’ the united states – the declaration of independence 1776 and the articles of confederation 1781 were adopted unanimously, the articles incorporating explicitly the rule of states’ unanimity for ratification in respect of both original articles and any amendments.34 in 1787, the convention that brought into being the united states constitution was constituted by delegates from each of the (then existing) states, with the task of reporting to congress and states, the agreed draft to be approved by both. from may to september that year the delegates debated the draft provisions, ratified the constitution, then sent the document out to the states for their ratification.35 this was similar to the procedure now contained in the constitution, whereby article v sets down two methods: a constitutional amendment proposal coming forward through congress on two-thirds vote of each house, with ratification being approval by three-fourths of the statues, by state legislatures or convention in the states; or 33 ibid. 34 us constitution and amendments, ‘the constitutional convention’ <https://www. constitutionfacts.com/us-constitution-amendments/the-constitutional-convention/> accessed 25 november 2018. 35 ibid. 132 a national convention called by congress on application of two-thirds of state legislatures, again with ratification begin approval by three-fourths of the states, by state legislatures of conventions in the states. congress makes the choice between these two options. australia – section 128 of the constitution chapter viii sets out requirements for constitutional referendums, providing that the constitution may be amended by referendum only. that is, a referendum act must be submitted to the australian electors for approval. this can occur in one of two ways. for the first, a bill containing the proposed change must be passed by both houses – the house of representatives (lower house) and the senate (upper house) by an absolute majority of total members (not just those present or members voting).36 the act then goes to the electors. for the second, if one house passes the bill, whilst the other does not or includes amendments not agreed by other house, then it remains possible for the bill to go forward to the people. thus if, after three months, the first house passes the bill again but the second house refuses, the governor-general can submit the bill as an act to electors for referendum. for this step, the prime minister must advise the governor-general. this means that the party not in government is confronted by a difficulty if wishing to put to referendum a constitutional change: without the prime minister’s support, the proposal will languish. the only solution for an opposition is to win government so as to have control of the process, for once the prime minister has advised the governorgeneral, the governor-general submits the proposed change to the electors for a referendum. the referendum must occur at least two months after the bill is passed, and at most six months after. section 128 allows the parliament to make laws setting out the exact procedures for a referendum (presently under the referendum (machinery provisions) act 1984 (cth))37 and all eligible voters – that is, all entitled to vote in house of representative elections – are eligible to vote in referendums.38 section 128 also allows for the situation existing immediately after federation (1901) when no laws covering suffrage at federal level existed. under section 128 until federal suffrage laws were introduced, in any state having full adult suffrage 36 commonwealth of australia constitution act 1900 (uk). 37 australian legal information institute (austlii) (commonwealth consolidated acts) <http://www.austlii.edu.au/cgi-bin /viewdb/au/ legis/cth /consol_act /r pa1984353/> accessed 1 december 2018. 38 in 2006 the right of persons serving a term of imprisonment was removed by the electoral and referendum amendment (electoral integrity and other measures) act 2006 (cth). change the constitution? interpretation, (mis)calculation, wrongs righted or reaction & reiteration the denning law journal 133 (for women and men) only half the votes in that state would be counted. this provision is now obsolete, following the introduction of uniform voting laws by the commonwealth electoral act 1902.39 under section 128 a referendum succeeds if: a. a majority of electors voting approve of the change in a majority of states (four out of six); and b. a majority of all electors across australia (including electors in act and nt) approve of the change. this is the ‘double majority’. further under section 128, any state specifically affected by the amendment must be one of the states with a majority vote in favour of the change. situations specifically referred to in section 128 include: a. if the change proportionally reduces a state’s representation in either house of parliament; b. if the change reduces the minimum number of representatives of a state in the house of representatives; c. if the change alters the state’s boundaries, by increasing or decreasing them; or d. if the change alters the provisions of the constitution specifically in relation to that state. this is known as the ‘triple majority’. section 128 has been amended once, by the 1977 referendum, providing for participation of territory (act, nt) electors in referendums. electors in territories which can be represented in the house of representatives (nt and act) are counted in determining whether a majority of all electors in australia approve a change. electors in other territories (external territories – norfolk island, christmas island) cannot vote in referendums.40 39 since amended by various acts and now being the commonwealth electoral act 1918 (cth). see commonwealth electoral act 1905 (cth); commonwealth electoral act 1906 (cth); disputed elections and qualifications act 1907 (cth); commonwealth electoral act 1909 (cth); commonwealth electoral act 1911 (cth); commonwealth franchise act 1902 (cth); electoral divisions act 1903 (cth). 40 referendum (machinery provisions) act 1984 (cth). 134 a change proposed to section 128 which failed was contained in the 1974 referendum: a. providing for territory voting at referendums (successful in 1977); b. modifying the requirement that a majority of electors in a majority of states approve a change, so that if an equal number of states approved and disapproved of a proposed change, but a majority of electors nationally approved, the referendum would succeed. are canadian women persons? supreme court vs privy council interpretation turning, then, to the question of what action has been taken and how successfully in terms of constitutional change, the first example (for canada), was a ‘change’ through interpretation. section 24 of the british north america act 1867 was taken from its inception to exclude women from the senate. not unexpectedly, activist women objected. the debate was whether the words of section 24 were being interpreted correctly, meaning constitutional amendment would be required to include women as potential senators, or whether the interpretation eliminating women from consideration was erroneous, meaning that women could be considered, albeit the word ‘woman’ did not appear. the argument lay in what the words ‘qualified person’ meant and, ultimately, the meaning of ‘person’. section 24 of the british north america act provided that ‘qualified persons’ alone could be appointed to the senate: the governor-general shall from time to time, in the queen’s name, by instrument under the great seal of canada, summon qualified persons to the senate and, subject to the provisions of this act, every person so summoned shall become and be a member of the senate and a senator. ‘qualified persons’ were those thirty years of age and above, owners of property to the value of at least $4,000, and who resided in the province from which they were to be appointed. the traditional view was that the words applied to men alone, and that a woman who was over thirty years, possessed property of the requisite value, and was resident in the relevant province was not ‘qualified’ because ‘person’, it was said, did not include ‘woman’. this interpretation was consistent with decisions of courts in england, the united states, australia and aotearoa/new zealand.41 41 see jocelynne a. scutt, ‘are women persons?’ in jocelynne a. scutt (ed), women and magna carta: a treaty for rights or wrongs (palgrave/macmillan 2016) 13–39; joan hoff wilson, law, gender and injustice: a legal history of u.s. women (nyu press change the constitution? interpretation, (mis)calculation, wrongs righted or reaction & reiteration the denning law journal 135 ‘person’ was determined by judges to refer only to men. consistent with this, the canadian government had denied women the right to sit as senators.42 when emily murphy was proposed for the senate by women activists in alberta, she was determined not to be ruled ineligible due solely to her being female. thousands supported her, with strong representations from the national council of women of canada, the federated women’s institutes, and the montreal women’s club. this made no difference. nor did the support of newspapers, or that she was canada’s first woman magistrate.43 she was a woman, and that was taken as disqualifying her. ultimately, activist women decided their only recourse was to the courts. emily murphy, henrietta muir edwards, irene parlby, nellie mcclung and louise mckinney took on the case together, becoming known as ‘the famous five’ and, as sharpe and mcmahon point out in their history and analysis of the case, each ‘had [already] played a distinctive role in the promotion of women’s legal rights and equality’.44 together, they represented ‘the struggle for suffrage, the fight for prohibition, the effort to apply christian values to public issues, and the promotion of improved legal and social rights for women and children’.45 yet how could they get the case to court? appointment to the senate was discretionary, meaning that murphy, like any other woman, had no right giving her standing to launch a suit. she had no standing. however, section 60(5) of the supreme court act 1906 provided that the government could refer directly to the supreme court any question of law or fact relating to the interpretation of the british north america act provisions, or the constitutionality or interpretation of any federal or provincial legislation. hence, the angle the women took was to petition the government to direct a reference to the canadian supreme court, on the basis that if the government did so, murphy and her four confederates could intervene. the court’s answer would be advisory only; however, it would be taken to be authoritative. 1991); jocelynne a. scutt, ‘sexism in legal language’ (1985) 59(10) alj 163–74; albie sachs and joan hoff wilson, sexism and the law: a study of male beliefs and judicial bias (martin robertson 1978); and see also mary jane mossman, the first women lawyers (hart publishing 2006). 42 robert j sharpe and patricia i mcmahon, the persons case – the origins and legacy of the fight for legal personhood (university of toronto press 2004); sheryl n hamilton, impersonations: troubling the person in law and culture (university of toronto press 2009). 43 ibid, ch 4; ‘emily murphy’s senate campaign’ 74–103. 44 sharpe and mcmahon (n 42) 37. 45 ibid. 136 the question ultimately put to the court by the attorney general of canada was: does the word ‘persons’ in section 24 of the british north america act, 1867, include female persons?46 although they were not confident of an outcome favourable to their position, the women’s hope nonetheless was that the court would interpret ‘person’ and hence ‘qualified person’ to include women. unfortunately, that hope foundered. the court did recognise the british north america act as ‘intended to be the foundation of [a] new structure’ and, insofar as the house of commons (the legislature) and the executive were in contemplation, there was ‘some plausibility’, said chief justice anglin,47 in contending: … [t]here would be something incongruous in a parliamentary system professedly conceived and fashioned on this principle, if persons fully qualified to be members of the house of commons were by an iron rule of the constitution, a rule beyond the reach of parliament, excluded from the cabinet or the government; if a class of persons who might reach any position of political influence, power or leadership in the house of commons, were permanently, by an organic rule, excluded from the government ….48 yet the ‘new structure’ argument did not hold sway insofar as the senate was in issue, and there was no acceptance that ‘women’ were a ‘class of persons’ who, if denied an equal place in the polity, would be thereby ‘wrongly excluded’. rather, the supreme court fell back on old notions applied to the united kingdom and the judicial exclusion of women as a class from public office, from suffrage, from legal and other professional practice, from university, and from membership of the house of lords.49 the principal authority relied upon was chorlton v lings,50 decided by the house of lords in 1868. thousands of women in england, scotland and wales had 46 reference re meaning of the word ‘persons’ in section 24 of the british north america act 1867 (known as edwards v attorney general of canada [1928] scr 276). 47 the designation or correct title of the chief justice was cjc – chief justice of canada. 48 edwards v attorney general of canada (n 46) 297. 49 chief justice anglin wrote the principal judgment, concurred in by justices lamont and smith. justice mignault agreed with the majority, albeit on slightly different grounds: edwards v attorney general of canada (n 46) 302–03. 50 [1868] lr 4cp 374. change the constitution? interpretation, (mis)calculation, wrongs righted or reaction & reiteration the denning law journal 137 voted or sought to vote in parliamentary elections when their names had been added to the electoral rolls.51 some had their names eliminated from the rolls by the barristers whose role it was to ensure the integrity of the electoral process. others’ names remained on the rolls, so went to the polling stations. some were allowed to vote; some were turned away. some had their votes challenged by unsuccessful candidates who contended that the women had breached the law by voting, that their votes should not have been accepted and that their inclusion in the count meant the ballot was spoiled. the argument was that the reform act of 1867, extending the vote to all householders, had ensured the suffrage to women householders.52 the word used in the reform act was ‘man’, not ‘person’; however recourse was had to the interpretation act 1850, known popularly as lord brougham’s act, which provided ‘man’ embraces ‘woman’. in other words, where the word ‘man’ appeared in a statute, this was deemed to include ‘woman’.53 lord coleridge and his junior richard pankhurst contended that this meant the women had voted legitimately, each being a householder and hence being included within the reform act’s suffrage provisions. sir james easte willes, of whom it was said ‘a finer judge never lived’,54 asserted in chorlton v lings that lord brougham’s act had no application. this was not because women were fickle or constitutionally unsuited to performing in public life,55 including exercising suffrage, but because they were held in such great esteem that voting and other appurtenances of public power were not for them: women are under a legal incapacity to vote at elections. what was the cause of it, it is not necessary to go into: but, admitting that fickleness of judgment and 51 see scutt, ‘are women persons’ 2016 (n 41). 52 for extensive discussion of this and other ‘person’ cases, see scutt, ‘are women persons’ (n 41); hoff wilson, law, gender and injustice (n 41); scutt, ‘sexism in legal language’ (n 41); sachs and hoff wilson, sexism and the law: a study of male beliefs and judicial bias (n 41). 53 see women’s history network, ‘this is where it all could have begun-but did it?’ (whn blog) <https://womenshistorynetwork.org/tag/lord-broughams-act-1850/> accessed 28 november 2018. 54 edwards v attorney general of canada (n 46) 283; see sachs and hoff wilson, sexism and the law: a study of male beliefs and judicial bias (n 41) 34; lord esher in beresfordhope v sandhurst (1889) 23 qbd 79 [95] said similarly of willes lj that a ‘more learned’ judge never lived. 55 contentions made by judges in other cases – for example jex blake and ors v senatus of university of edinburgh [1873] 11 m 784; and see cases from the united states, australia, canada, the united kingdom and aotearoa/new zealand cited by scutt, ‘sexism in legal language’ (n 41); sachs and hoff wilson, sexism and the law: a study of male beliefs and judicial bias (n 41). 138 liability to influence have sometimes been suggested as the ground of exclusion, i must protest against its being supported to arise in this country from any under-rating of the sex either in point of intellect or worth. that would be quite inconsistent with one of the glories of our civilisation, – the respect and honor in which women are held. this is not a mere fancy of my own, but will be found in selden …, in the discussion of the origin of the exclusion of women from judicial and like public functions, where the author gives preference to this reason, that the exemption was founded upon motives of decorum, and was a privilege of the sex.56 the chief justice cited beresford-hope v sandhurst57 where chorlton v lings was relied upon by lord esher, mr in his assertion that by ‘neither the common law nor the constitution of [great britain] from the beginning of the common law until now can a woman be entitled to exercise any public functions …’58 willes, j and chorlton v lings were called upon again in viscountess rhondda’s claim, where the contention that a woman should take her seat in the house of lords, she being the only surviving holder of the qualifying title, was initially upheld. yet the lord chancellor objected, reconstituted the house of lords committee, and ensured that by a substantial majority the claim was quashed.59 a recurring theme in previous decisions and repeated by the chief justice was that no woman ‘had ever’ applied for whatever position was under contention – whether it be entry to university as in jex blake,60 the right to vote as in chorlton v lings,61 the right to go into the practice of law or take up articles as a precursor to legal practice as in bebb v the law society62 and edith haynes v law society.63 yet this argument meant that there was no point in any woman at any time applying for any public post or to engage in any public responsibility, for the argument that no woman had applied before her would be employed to denounce her claim. further, it made no difference to the supreme court that the interpretation act 1850 had been repealed and replaced by the interpretation act 1889, making the ‘man embraces woman’ provision arguably stronger by stating that ‘man’ used in any statute must be taken to include ‘woman’ ‘unless the 56 chorlton v lings [1868] lr 4 cp 374, 392. 57 (1889) 23 qbd 79. 58 edwards (n 46) 284. 59 [1922] ac 339. 60 jex blake (n 55). 61 chorlton (n 56). 62 [1914] 1 ch 286. 63 [1904] 6 war 209. change the constitution? interpretation, (mis)calculation, wrongs righted or reaction & reiteration the denning law journal 139 contrary intention appears’. that this meant in other words ‘man’ in legislation is equivalent to ‘woman and man’ was unpersuasive. ‘person’ in the supreme court’s view continued to mean ‘man’ and no woman was therefore ‘qualified’ to enter the senate. fortunately for ‘the famous five’, the refusal to accept them as ‘persons’ meant they did not have to let the matter rest. an appeal to the privy council was instituted so that the matter could be settled at the highest appellate level. at that time, canada was not enamoured of the privy council, considering it hide bound and not a suitable appellate court for cases originating from a ‘new’ country with different geography, a different demographic, and new ideas. this unhappiness with the privy council was replicated in australia, too, for very much the same reasons: why should a body sitting in distant london pronounce upon disputes arising from a very different country, with a disparate topography, a hugely dissimilar climate, long distances, deserts and a population crowded mainly in city centres on the coast.64 this assessment of the privy council as unsuited to be the appellate court for the dominions was ironic, for it was the privy council that took the momentous step of declaring ‘women are persons’. this was the first appellate decision of any common law court, in any of the countries where the debate had raged and courtroom battles had been fought for at least fifty years, recognising women as persons. lord justice sankey, presiding over the privy council as lord chancellor, wrote the unanimous decision of the five lords on the judicial committee. the word ‘persons’ did he said (the emphasis being his own) include ‘women’. women were entitled to exercise the privileges hitherto reserved for men alone. women were entitled to enter public offices formerly considered to be reserved to men. women were entitled to be called to serve on the canadian senate. the judgment read: the exclusion of women from all public offices is a relic of days more barbarous than ours, but it must be remembered that the necessity of the times often forced on man customs which in later years were not necessary. such exclusion is probably due to the fact that the deliberate assemblies of the early tribes were attended by men under arms, and women did not bear arms. the likelihood of 64 the australian constitution originally included the high court of australia as its highest appellate court, but this was altered when the bill went through the united kingdom parliament, reinstating the privy council as the final court of appeal. see generally murray gleeson, ‘the privy council – an australian perspective’ <http://www. hcourt.gov.au/assets/publications/speeches/former-justices/gleesoncj/cj_18jun08.pdf> accessed 28 november 2018. 140 attack rendered such a proceeding unavoidable, and after all what is necessary at any period is a question for the times upon which opinion grounded on experience may move one way or another in different circumstances. this exclusion of women found its way into the opinions of roman jurists. the barbarian tribes who settled in the roman empire, and were exposed to constant dangers, naturally preserved and continued the tradition.65 barbarous times where no longer upon us, the judgment continued, and the long line of ‘persons cases’ holding women not to be included in the term were no longer applicable. the british north america act had set about establishing the foundation for a new country, with a political structure appropriate to the new times in which the people of canada lived. effectively endorsing what the supreme court had said about the legislature (the house of commons) and the executive, the privy council extended this to include the senate. the senate was a part of the political and parliamentary system created by the british north america act, and could not be set apart from it. rather it should be seen in context – the context of a creating a constitution for a new country. in this, too, it should not be assumed that ‘old’ notions as to women’s place and person should prevail. this followed for the word person itself: the word ‘person’ may include members of both sexes, and to those who ask why the word should include females, the obvious answer is, why not? in these circumstances the burden is upon those who deny that the word includes women to make out their case.66 if women were ‘expressly excluded from public office’ there would be no difficulty in concluding the matter accordingly. but the british north america act’s provision said that ‘persons’ were those entitled to be summoned to or placed in public office; this meant that ‘different considerations arise’.67 customs need to be recognised, said lord sankey, for the part they have played in referencing the word ‘person’. the word ‘is ambiguous and in its original meaning would undoubtedly embrace members of either sex’. he continued: on the other hand, supposing in an act of parliament several centuries ago it had been enacted that any person should be entitled to be elected to a particular office it would have been understood that the word only referred to males, but 65 henrietta muir edwards and ors v attorney general of canada and ors [1930] ac 4. 66 ibid 4. 67 ibid. change the constitution? interpretation, (mis)calculation, wrongs righted or reaction & reiteration the denning law journal 141 the cause of this was not because the word ‘person’ could not include females but because at common law a woman was incapable of serving a public office. the fact that no woman had served or has claimed to serve such an office is not of great weight when it is remembered that custom would have prevented the claim being made, or the point being contested. customs are apt to develop into traditions which are stronger than law and remain unchallenged long after the reason for them has disappeared. the appeal to history therefore in this particular matter is not conclusive.68 the privy council concluded that the subject matter of the legislation, and facts existing at the time of its passage ‘are legitimate topics to consider’ in determining the object and purpose of the parliament in passing a bill. however, ‘the argument must not be pushed too far’. citing lord justice farwell in rex v west riding of yorkshire county council,69 lord sankey said that despite its ‘perhaps’ being legitimate to call upon history as an aid to show what facts existed to bring a statute into being, ‘the inferences to be drawn therefrom are exceedingly slight’.70 it was wrong to ‘apply rigidly’ to contemporary canada ‘the decisions and the reasonings … which commended themselves … to those who had to apply the law in different circumstances, in different centuries to countries in different stages of development’.71 an appeal to roman law and early english decisions (as cited in chief justice anglin’s judgment) ‘is not of itself a secure foundation on which to build the interpretation of the british north america act of 1867’.72 having concluded thus on extraneous matters going to interpretation of the provisions, the privy council then addressed internal evidence derived from the act itself. the privy council being the final court of appeal from the colonies, great care should be taken, lord sankey concluded, ‘not to interpret legislation meant to apply to one community by a rigid adherence to the customs and traditions of another’. the object of the british north america act was to grant canada a constitution. in so doing ‘a living tree was planted, capable of growth and expansion within its natural limits’ and ‘like all written constitutions it has been subject to development through usage and convention’.73 the act’s provisions should not be ‘cut down … by a narrow and technical construction’. rather, the act should be given ‘a large and liberal interpretation so that [canada] to a great extent, but within 68 henrietta muir edwards (n 65) 5. 69 [1906] 2 kb 676. 70 henrietta muir edwards (n 65) 7, citing crias, statute law (3rd ed) 118. 71 henrietta muir edwards (n 65) 5. 72 ibid. 73 ibid 5–6, citing sir robert borden, canadian constitutional studies, 1922, 55. 142 certain fixed limits, may be mistress in her own house, as the provinces to a great extent, but within certain fixed limits, are mistresses in theirs’.74 referencing the act’s provisions establishing the political and parliamentary system, lord sankey determined that the question in issue was ‘not to the rights of women’ but was simply ‘a question as to their eligibility for a particular position’. neither males nor females had a right to be summoned to the senate. hence, ‘the real point at issue is whether the governor-general has a right to summon women to the senate’. nothing in the act led to a conclusion that the governor-general was precluded from that right. the role of the governorgeneral was to call 72 ‘members’ as senators, and the word ‘member’ is ‘not in ordinary english confined to male persons’. as to ‘qualified persons’, ‘persons’ is ‘not confined to members of the male sex’, and what is the effect of ‘qualified’?75 clearly, said lord sankey, ‘qualified’ relates to those requirements or matters listed in the act as defining ‘qualified’. none precluded women. furthermore, chief justice anglin’s concern that marriage created an obstacle for women was unfounded: the aliens act 1844 provided that any woman married to a natural born subject or person naturalised ‘shall be deemed and taken to be herself naturalised and have all the rights and privileges of a natural born subject’.76 as to other matters going to political representation, until 1916 women were excluded from the suffrage in federal and provincial elections. however, from 1916 to 1922 various dominion and provincial acts were passed admitting women to the vote and acknowledging their right to sit in dominion and provincial legislative bodies as members. quebec alone continued to deny women participation in provincial elections on the same basis as men.77 a ‘heavy burden’ rests upon an appellant seeking to set aside a unanimous judgment of the supreme court. however lord sankey had regard to several issues: a. to the object of the act, viz, to provide a constitution for canada, a responsible and developing state; b. that the word ‘person’ is ambiguous and may include members of either sex; 74 henrietta muir edwards (n 65) 6. 75 ibid. 76 ibid. 77 ibid; see parliament of canada, ‘women’s right to vote in canada’ (senate house of commons parlinfo) <https://lop.parl.ca/sites/parlinfo/default/en_ca/electionsridings/ womenvote> accessed 28 november 2018. change the constitution? interpretation, (mis)calculation, wrongs righted or reaction & reiteration the denning law journal 143 c. that there are sections in the act above referred to which show that in some cases the word ‘person’ must include females; d. that in some sections the words ‘male persons’ is expressly used when it is desired to confine the matter in issue to males, and; e. to the provisions of the interpretation act. he continued that their lordships ‘have come to the conclusion that the word “persons” in section 24 includes members both of the male and female sex and that, therefore, the question propounded by the governor-general must be answered in the affirmative …’78 thus it was that without any constitutional amendment, the british north america act was effectively changed. in interpreting the act’s provisions, the privy council overturned an interpretation that denied women personhood and eligibility for the senate, concluding that women were persons and hence were eligible to be summoned to and become members of the senate of canada. this provides an example of the way constitutional change can occur without recourse to provisions governing constitutional amendment. fighting the ‘red peril’ – the court and the people vs the government’s miscalculation the second example – australia – relates to a change proposed through a referendum,79 when an earlier effort by the government to ban the communist party and its affiliates failed.80 the impetus was the desire of a conservative government to 78 ibid 7. 79 communist party of australia, ‘when the australian people said ‘no’!’ (australian marxist review) <http://www.cpa.org.au/amr/54/amr54-03-when-australia-said-no.html> accessed 1 december; australian communist party referendum 1951 (communists and communism) <https://www.revolvy.com/page/australian-referendum%2c-1951-%28communists and-communism%29?stype=topics&cmd=list> accessed 1 december 2018. 80 communist party dissolution act 1950 (cth), an earlier ban under the national security (subversive organisations) regulations 1940 (cth) when the menzies united australia party – national country party government declared it an illegal organisation was lifted when the curtin labour government came to power in 1942. a condition was that the party assist the allied war effort: drew cottle, ‘how australia failed to destroy communism’, australian society for the study of labour history, <http://www.labourhistory.org.au/hummer/thehummer-vol-10-no-1-2015/australia-failed/> accessed 1 december 2018; alastair davidson, the communist party of australia: a short history (the hoover institution 1968); w j brown, the communist movement and australia (australian labour movement history publications 1986); stuart macintyre, the reds (allen & unwin 1998). 144 retain federal government81 and the rise of the union of soviet socialist republics (ussr) as a world power governed by the communist party. in 1950s australia, the conservatives – newly named the australian liberal party – were in government. during the second world war, australia, traditionally allied with and seeing the united kingdom as its ‘protector’, changed course towards the united states. the war in the pacific had been fought by the united states and australia, without british help – the united kingdom being taken up in europe and the middle east and contrary to australia’s welfare wishing to retain australian troops to pursue the war in europe.82 after the war, the ussr, a former ally, became the bête noir of the western world. the cold war had begun. with china joining the ussr politically through chairman mao’s communist party, australia’s interests under the conservative government became even more allied to those of the united states. in the united states, the house un-american activities committee (huac) and senator mccarthy chairing an associated committee took a leading part in tarring us citizens with the label ‘communist’ and hence with being untrustworthy and traitorous.83 the menzies’ government saw an opportunity to taint its political rival the australian labour party (based in workers’ rights, industrial democracy, and supported by unions) with the diktat of the communist menace,84 passing legislation aimed at banning the australian communist party 81 george williams, ‘the communist party dissolution bill and its aftermath’ (australian society for the study of labour history 8 may 2010) <https:// labourhistorycanber ra.org/2015/05/the-communist-party-dissolution-bill-and-itsaftermath/> accessed 1 december 2018. 82 the australian prime minister, john curtin, defied this demand from churchill and ordered the australian troops back to defend australia in the pacific: defining moments, ‘curtin brings home the troops – 1942: australian troops return to fight in the pacific’ (national museum australia) <http://www.nma.gov.au/defining-moments/resources/ curtin-brings-home-troops> accessed 1 december 2018. 83 see for example walter goodman, the committee (farrer, straus and girous, 1968); david frum, how we got here: the ‘70s (basic books 2000); thomas patrick doherty, cold war, cool medium: television, mccarthyism, and american culture (brandeis university press 2003); bruce cook, trumbo (grand central publishing 2015); larry ceplair and christopher trumbo, dalton trumbo: black listed hollywood radical (university press of kentucky 2017). 84 when the high court with one dissenter (chief justice latham) struck down the communist party dissolution act 1950 (cth) and the referendum failed (see below), menzies instituted a royal commission into what became known as ‘the petrov affair’. the federal election had been announced and, on 13 april, the eve of the last parliamentary sitting day before the 1954 election campaign, menzies announced the defection of change the constitution? interpretation, (mis)calculation, wrongs righted or reaction & reiteration the denning law journal 145 as a ‘revolutionary party’ aiming to overthrow or subvert by treason or subversion the existing system of government.85 the communist party dissolution act 1950 (cth) set out to dissolve the australian communist party (acp) and to provide that members of the communist party were ineligible to hold office in trades unions and, as ‘declared persons’, were obliged to forfeit their property to the commonwealth, just as any property owned by the communist party itself was forfeit. the act’s preamble set it out starkly, asserting that the australian communist party: … [i]s a revolutionary party using violence, fraud, sabotage, espionage and treasonable or subversive means for the purpose of bringing about the overthrow or dislocation of the established system of government of australia and, particularly by means of strikes or stoppages of work, causing dislocation in certain industries which are declared to be vital to the security and defence of australia.86 by section 5 the act further provided, subject to a declaration by the governorgeneral, ‘means for the dissolution of bodies of persons associated in the manner specified in the statute with the communist party or communism’ and by section 8 for the forfeiture of the property of such associations. any acts directed towards the continuance of the activities of such an association would be penalised under section 7, whilst sections 9 and 10 moved on to providing that, subject to a declaration by the governor-general, persons with specified communist associations shall be ineligible for holding office under or for employment by the commonwealth or for holding office in an industrial organization which the governor-general declares to be an organisation in industries such as coal mining, iron and steel, engineering, transport, building or power. the legislation was vladimir petrov, an official attached to the russian (ussr) embassy. he implicated herbert vere evatt, the leader of the labour opposition, and ultimately won the election. varying views exist as to the entire affair; however, reliable historians do assess this episode as one in relation to which at minimum the timing was engineered to damage labour’s prospects at the polls (as indeed it did): ‘the petrov affair’ (royal commission) https://petrov.moa<doph.gov.au/royal-commission.html> accessed 1 december 2018); ‘the petrov affair’ (the affair) <https://petrov.moadoph.gov.au/the-affair.html> accessed 1 december 2018; robert manne, the petrov affair: politics and espionage (pergamon 1987); national museum australia (nma), ‘petrov affair – 1954: soviet diplomat vladimir petrov defects’ (defining moments) <http://www.nma.gov.au/ defining-moments/resources/petrov-affair> accessed 1 december 2018. 85 communist party dissolution act 1950 (cth), preamble. 86 ibid. 146 challenged by the communist party and ten trades unions (not all registered under the commonwealth conciliation and arbitration act 1904–49) as being unconstitutional. this was an attack on organised labour. the first battle was fought in the australian high court.87 the full court consisting of chief justice latham and justices dixon, mctiernan, williams, webb, fullagar and kitto sat. justices dixon,88 mctiernan,89 williams,90 webb,91 fullagar92 and kitto93 found unanimously that the communist party dissolution act was invalid in its entirety. the chief justice stood alone in his determination against the australian communist party and resoundingly for the commonwealth government.94 to address latham cj first, latham held that the act was entirely within the power of the federal government under section 51(vi) (the defence power) and section 51(xxxix) (the incidental power), which provide: the parliament shall, subject to this constitution, have power to make laws for the peace, order, and good government of the commonwealth with respect to: … (vi) the naval and military defence of the commonwealth and of the several states, and the control of the forces to execute and maintain the laws of the commonwealth; … (xxxix) matters incidental to the execution of any power vested by this constitution in the parliament or in either house thereof, or in the government of the commonwealth, or in the federal judicature, or in any department or officer of the commonwealth.95 he also adverted favourably to section 61, upon which the commonwealth also relied. it provides that the executive power of the commonwealth, being vested in the crown, is exercisable by the governor-general as representing the 87 australian communist party v the commonwealth [1951] hca 5; (1951) 83 clr 1. 88 ibid 174–205. 89 australian communist party v the commonwealth (n 87) 205–13. 90 australian communist party v the commonwealth (n 87) 213–32. 91 australian communist party v the commonwealth (n 87) 232–48. 92 australian communist party v the commonwealth (n 87) 248–71. 93 australian communist party v the commonwealth (n 87) 271–85. 94 australian communist party v the commonwealth (n 87) 129–74. 95 australian constitution, ‘part 5 – powers of the parliament’ parliament of australia. change the constitution? interpretation, (mis)calculation, wrongs righted or reaction & reiteration the denning law journal 147 crown, and that this extends to ‘the execution and maintenance of [the] constitution, and of the laws of the commonwealth’.96 as to the defence power, for latham cj it did not matter that no war was being waged, nor that no war was on the horizon. the korean war was in train, australia was supporting the united states in its stand against north korea, and had sent troops. but australia was not on a war footing.97 hence it was not possible to contend (and latham cj did not) that there was danger in the nature of the first or second world war or any equivalence to them. notwithstanding this, he held that even in peacetime it was within the federal government’s power to pass legislation in the nature of the communist party dissolution act, disbanding a political organisation and industrial bodies, forfeiting their property and denying officials connected to or associated with these organisations employment by the federal government or with the named unions. the high court was not entitled, he held, to question the parliament’s assessment of these organisations or bodies as subversive, or as ‘an integral part of the world communist revolutionary movement which, in the king’s dominions and elsewhere, engages in espionage and sabotage and in activities or operations of a treasonable or subversive nature …’ or the governor-general’s assessment of bodies associated with the australian communist party as themselves engaged in such activities.98 as to further submissions made by the plaintiffs, latham cj found against them, too. some counsel argued, he said, ‘as if the commonwealth constitution contained provisions corresponding to those contained in … other constitutions’99 including that of the united states and canada. the united states provisions were those ‘preventing the enactment of laws impairing the obligation of contracts or depriving persons of life, liberty or property without due process of law’.100 as for canada, the british north america act by section 92 says ‘property and civil rights within the province[s]’ are under the exclusive power of provincial legislatures.101 yet, said the chief justice: none of these provisions appear in the constitution of the commonwealth, and … there is no basis whatever for the attempt to create such provisions by 96 australian constitution, ‘chapter ii – the executive government’, parliament of australia. 97 see dixon j in australian communist party (n 87) 196. see further below. 98 australian communist party (n 87) 134. 99 australian communist party (n 87) 169. 100 ibid. 101 ibid. 148 arguments based upon the judicial power102 and s. 92 of the constitution103 and the natural dislike of suppressive laws. the [communist party] act does affect civil rights. it does affect proprietary rights. it does affect contracts of employment. but there is no reason why it should not do all of these things if it is legislation with respect to a subject upon which the commonwealth parliament has power to make laws …104 he then took issue with the proposition that federal legislation could not ‘abolish a body which had federal political objectives or state political objectives’. the plaintiffs’ contention as to federal political objectives was that the constitution ‘provided for voting by electors, impliedly providing that there should be political parties and therefore impliedly … the electors should have the constitutional right to vote for any body of persons which was a political party’. further, contended the plaintiffs, the constitution ‘impliedly provided for the existence of any political parties which any persons chose to form and, accordingly, that the commonwealth parliament had no power to suppress any party’.105 as to state political objectives, the plaintiffs ‘conceded that the constitutions of the states, like the constitution of the commonwealth, say nothing about political parties’. nonetheless, latham cj said, for the plaintiffs it was argued that the constitutions of the states, like that of the commonwealth, ‘assumed the existence of political parties and that therefore all political parties can continue to 102 the judicial power is contained in chapter 3, the judicature, and most particularly section 71 which provides: ‘the judicial power of the commonwealth shall be vested in a federal supreme court, to be called the high court of australia, and in such other federal courts as the parliament creates, and in such other courts as it invests with federal jurisdiction. the high court shall consist of a chief justice, and so many other justices, not less than two, as the parliament prescribes’. 103 section 92 is the trade and commerce power which provides: trade within the commonwealth to be free. on the imposition of uniform duties of customs, trade, commerce, and intercourse amongst the states, whether by means of internal carriage or ocean navigation, shall be absolutely free. but not withstanding anything in this constitution, goods imported before the imposition of uniform duties of customs into any state, or into any colony which, whilst the goods remain there, becomes a state shall, on thence passing into another state within two years after the imposition of such duties, be liable to any duty chargeable on the important of such goods into the commonwealth, less any duty paid in respect of the goods on their importation. 104 australian communist party (n 87) 169. 105 ibid. change the constitution? interpretation, (mis)calculation, wrongs righted or reaction & reiteration the denning law journal 149 exist notwithstanding any legislation directed against them’. the conclusion of such arguments would be that ‘bodies, however traitorous and subversive, are entitled to continue to exist if they are political parties though individual persons could be punished if they were prosecuted for and convicted of offences’.106 all this, said latham cj, was ‘such an insubstantial argument’ that it was ‘difficult to deal with’. nonetheless, deal with it he did by saying: the commonwealth parliament has full power to make laws with respect to traitorous and subversive activities of persons, whether they act individually or in association. if that be so, the fact that the bodies have other characteristics – political, athletic, artistic, literary, etc. – cannot possibly exclude the application of … laws [prohibiting them from operation].107 as to section 92, the trade and commerce power, including free movement or intercourse between the states in pursuance of trade and commerce, the plaintiffs submitted that the australian communist party and the industrial organisations covered by the communist party dissolution act were engaged in inter-state activities, writing letters from one state to another, with union officers travelling from state to state in undertaking their duties. therefore, ran the plaintiffs’ argument, they should be exempt from any law inhibiting such activities. this was countered by latham cj, saying that ‘most other bodies of any consequence in australia’ engaged in such activities, and the plaintiffs had provided nothing in the way of trade, commerce or intercourse in which they engaged so as to bring their organisations within the scope of section 92. he agreed that in its operation the act would restrict various activities of those to whom it applied, including interstate activities. however, this was consistent, he said, with any act providing for imprisonment for any offence, one requiring persons to take licences or to possess qualifications before they can follow certain occupations in a particular state,108 and quarantine acts and scores of other acts.109 ‘commerce’, he said, is remote from these activities. a law would be valid, not infringing section 92, if it 106 ibid. 107 ibid. 108 it should be noted that latham cj’s contention as to section 92 allowing for state licensing or qualifications to be restricted by states, has since been determined to be prohibited where queensland required a residency qualification before (for example) a qualified barrister or solicitor could be admitted to practice: street v queensland bar association and ors (1988) hca 37, (1988) 79 alr 79, (1988) 2 aljr 437; street v queensland bar association [1989] hca 53, (1989) 168 clr 461. 109 australian communist party (n 87) 169. 150 prohibited passage across state frontiers of ‘creatures or things calculated to injure its citizens’, meaning that consistent with section 92 inter-state transfer of diseased cattle and noxious drugs could be prevented by law. hence, he continued: there can be nothing more injurious and dangerous than traitorous and subversive activities. if, in order to stop them, certain action is thought necessary by parliament, if it is otherwise within power it is no objection to such action that it has the effect of preventing all those activities and other activities, whether inter-state or intra-state.110 finally, latham cj addressed forfeiture of property. acknowledging that section 51(xxxi) of the constitution provides that the parliament may make laws for the acquisition of property upon just terms, he observed that this is the only provision to address the matter.111 he saw no conflict between section 51(xxxi) and the provisions of the communist party dissolution act: the act forfeits property because the party or the association engages in or is connected with activities of the kind described in the recitals, that is, activities which are considered by parliament to be traitorous or subversive. if this is to be regarded as a law ‘for the acquisition of property’ i fail to see anything unjust in parliament forfeiting the property of an association which in the opinion of parliament possesses those characteristics.112 the act, he said, ‘is seen to be very mild’ when compared with ‘the common form of legislation in many countries with respect to espionage, sabotage and the like activities directed against the state, the penalty for which is often death’.113 dixon j set out the plaintiff’s case in brief compass, stating the primary ground upon which the validity of the communist party dissolution act was attacked was ‘simply that its chief provisions do not relate to matters falling within any legislative power expressly or impliedly given by the constitution to the commonwealth parliament but relate to matters contained within the residue of legislative power belonging to the states’.114 it was true, he said, that as a general statement ‘the law governing the formation, existence and dissolution of voluntary 110 ibid. 111 ibid, citing johnson fear & kingham & the offset printing co pty ltd v the commonwealth [1943] hca 18, (1943) 87 clr 314. 112 australian communist party (n 87) 170. 113 ibid. 114 australian communist party (n 87) 174. change the constitution? interpretation, (mis)calculation, wrongs righted or reaction & reiteration the denning law journal 151 associations of people falls within the province of the states’.115 this meant the validity of section 4 of the act could be sustained only if a subject of federal legislative power could be found ‘to which the enactment of such a provision is fairly incidental’. as noted, the commonwealth relied on section 51(vi) and 51 (xxxix) of the constitution. observing that the defence power aspect was clear: to be valid, the act had to fall within its terms, dixon j went on to address the incidental power argument which, he said, had to rely upon the power possessed by the federal parliament: … [t]o make laws for the protection of the commonwealth against subversive designs, whether … attributable to the interplay of s.51(xxxix) with s.61 or form[ing] part of a paramount authority to preserve both its own existence and the supremacy of its laws necessarily implied in the erection of a national government.116 as to section 5, this took section 4 a step further in being directed against ‘bodies of persons possessing communist affiliations or connections of certain [defined] forms … but does not apply to industrial organisations registered under the law of the commonwealth or of a state’. for such a body to come within the terms of the act, a declaration by the governor-general was required.117 albeit in relation to the latter ‘specified conditions’ were set out, to be determined as existing by the governor-general, dixon j concluded that ‘every element involved’ was left to the opinion of the governor-general in council: it would be for the governorgeneral in council ‘to judge of the reach and application of the ideas expressed by the phrases “security and defence of the commonwealth”, “execution of the constitution”, “maintenance of the constitution”, “execution of the laws of the commonwealth”, “maintenance of the laws of the commonwealth” and “prejudicial to”’. furthermore, he said, ‘the expression by the governor-general in council of the result in a properly framed declaration is conclusive’. a body against which a declaration was made could not ‘go behind such an executive act done in due form of law’ to ‘impugn its validly upon the ground that the decision upon which it is founded has been reached improperly’ by taking extraneous considerations into account, or ‘because there was some misconception of the meaning or application … of the statutory description of the matters of which the governor-general in council should be satisfied’, or ‘because of some other supposed miscarriage’.118 115 australian communist party (n 87) 175. 116 ibid. 117 ibid. 118 australian communist party (n 87) 178. 152 dixon j then discussed the principle that the governor-general could not be subject to a prerogative writ, the good faith of his acts as the crown’s representative could not be impugned ‘in a court of law’, and no inquiry could be made into the grounds upon which the advice was tendered for the purpose of invalidating an act formally done by the governor-general in the crown’s name. propositions put by the commonwealth to address these factors, which gave rise to there being no substantive way of challenging a declaration, dixon j said were ‘unreliable’. one required ‘a construction or constructions of the provision of which it is clearly incapable’. the other relied upon applying to the governor-general in council ‘rules of law which have never been applied to him and are inapplicable as well as being inconsistent with the plain meaning of the provision’.119 the validity of forfeiture, seen by latham cj as beyond question, met with dixon j’s critique. as it appeared in the act, forfeiture was ‘neither part of a punishment for a breach of the law nor an acquisition for the purposes of the commonwealth upon just terms’. rather it was ‘something in the nature of a final or permanent deprivation of property as a preventive measure taken by direct legislative or executive action’. this meant latham cj’s justifications for it were unsustainable.120 similarly as to the proposition that denying employment to members of the australian communist party or affiliated bodies could come within the defence power, dixon j was unable to find such a relationship. he looked to whether the provisions could be sustained under the commonwealth’s power to legislate with respect to the public service.121 this was not so, he said, because ‘a declaration about a man, if validly made, is an absolutely privileged statement in the [commonwealth] gazette of a most disparaging description’. it could be ‘published of anybody, where or not … in the service of the commonwealth or an authority of the commonwealth or whether or not there is any chance of his ever entering such a service’.122 hence, the denial of employment provisions was not valid.123 so, too, with the provisions covering industrial organisations. the commonwealth’s power lay under section 51 (xxxv) relating to ‘conciliation and arbitration for the prevention and settlement of two-state industrial disputes’. this provided no basis for sanctioning of such organisations. in the first place, bodies had to be registered under the commonwealth conciliation and arbitration act 1904 (cth) to come within section 51(xxxv) and if they did, the power did not and could not extend to disbanding them as the act sought to do.124 119 australian communist party (n 87) 180. 120 australian communist party (n 87) 182. 121 section 51(xxxv). 122 australian communist party (n 87) 204. 123 ibid. 124 ibid. change the constitution? interpretation, (mis)calculation, wrongs righted or reaction & reiteration the denning law journal 153 as to the defence power, dixon j emphasised that where provisions ‘upon a matter of its own nature prima facie outside federal power’, encompassing ‘nothing in themselves disclosing a connection with federal power’, but were dependent upon ‘a recital of facts and opinions concerning the acts, aims and propensities of bodies and persons to be affected in order to make it ancillary to defence’, it was self-evident that ‘nothing but an extreme and exceptional extension of the operation or application of the defence power will support’ them: it may be conceded that such an extreme and exceptional extension may result from the necessities of war and, perhaps … of the imminence of war. but the reasons for this are to be found chiefly in the very nature of war and the responsibility borne by the government charged with the prosecution of a war.125 citing williams j in victorian chamber of manufactures v the commonwealth,126 he added that the paramount consideration ‘is that the commonwealth is undergoing the dangers of a world war, and that when a nation is in peril, applying the maxim salus populi suprema lex, the courts may concede to the parliament and to the executive which it controls a wide latitude to determine what legislation is required to protect the safety of the realm’.127 in the instance of a war ‘of any magnitude’ the necessity of organising the nation’s resources of men and materials, controlling the country’s economy, ‘employing the full strength of the nation and co-ordinating its use’, along with ‘raising, equipping and maintaining forces on a scale formerly unknown’ and ‘exercising the ultimate authority in all that the conduct of hostilities implies’ is clearly imposed upon the government. the defence power must provide the necessary authority. however, such necessity cannot exist in this form during any period of ostensible peace: whatever the dangers are experienced in such a period and however wellfounded apprehension of danger may provide, it is difficult to see how they could give rise to the same kind of necessities. the federal nature of the constitution is not lost during a perilous war. if it is obscured, the federal form of government must come into full view when the war ends and is wound up. the factors which give such a wide scope to the defence power in a desperate conflict are for the most part wanting.128 125 australian communist party (n 87) 202. 126 (1943) 67 clr 335, 400. 127 australian communist party (n 87) 202. 128 australian communist party (n 87) 203. 154 the use of the defence power in war and peace hitherto was subject to a marked distinction, he went on. but the high court had never accepted that the continued existence of a formal state of war ‘is enough in itself, after the enemy has surrendered’, to bring or retain within the legislative power over defence ‘the same wide field of civil regulation and control as fell within it while the country was engaged in a conflict with powerful enemies’.129 it could not now sustain the communist party dissolution act. the majority decision against the act precipitated the menzies government into seeking to amend the constitution. taking place on 22 september 1951, the referendum put the question: do you approve of the proposed law for the alteration of the constitution entitled ‘constitution alteration (powers to deal with communists and communism) 1951?’130 the constitution alteration (powers to deal with communists and communism) bill 1951 sought to give the commonwealth parliament power to make laws with respect to communists and communism where necessary for the security of the commonwealth. this was to be done by introduction of a new section 51a providing: 1. the parliament shall have power to make such laws for the peace, order and good government of the commonwealth with respect to communists or communism as the parliament considers to be necessary or expedient for the defence or security of the commonwealth or for the execution or maintenance of this constitution or of the laws of the commonwealth. 2. in addition to all other powers conferred on the parliament by this constitution and without limiting any such power, the parliament shall have power: a. . . . to make a law in the terms of the communist party dissolution act 1950: i. without alteration; or ii. with alterations, being alterations with respect to a matter dealt with by that act or with respect to some other matter with respect to which the parliament has power to make laws; b. to make laws amending the law made under the last preceding paragraph, but so that any such amendment is with respect to a matter 129 australian communist party (n 87) 195, citing r. v foster (1949) 79 clr 43 at 83, 84. 130 parliament of australia, ‘part 5 – referendums and plebiscites – results’, house of representatives, <https://parlinfo.aph.gov.au/parlinfo/search/display/display.w3p;query= id:%22handbook/newhandbook/2014-10-31/0049%22> accessed 1 december 2018. change the constitution? interpretation, (mis)calculation, wrongs righted or reaction & reiteration the denning law journal 155 dealt with by that law or with respect to which the parliament has power to make laws; and c. to repeal a law made under either of the last two preceding paragraphs. 3. in this section the ‘communist party dissolution act, 1950’ means the proposed law passed by the senate and the house of representatives, and assented to by the governor-general on the twentieth day of october, 1950, being the proposed law entitled ‘an act to provide for the dissolution of the australian communist party and of other communist organisations, to disqualify communists from holding certain offices, and for purposes connected therewith’.131 anticipating a ‘yes’ vote, menzies, so often seen as an arch political tactician,132 miscalculated. with three states against and only three states for, and an ‘against’ majority of 2,370,009 as opposed to 2,317,927 ‘for’, the referendum was lost. herbert vere evatt, as leader of the labour opposition, is recognised as being a key to the referendum’s defeat. he travelled throughout australia relentlessly in the period leading up to the vote, speaking at numerous rallies and to smaller and small gatherings.133 it is often said that australians are conservative in their approach to referendums and the potential for constitutional change. this is based on the relatively rare occasions when a referendum has succeeded, and the many more times a referendum has been lost. however, this blanket assessment ignores the possibility that australians are disposed to think carefully about the nature and subject matter of proposed changes, and compulsory voting likely plays a significant part in this. in 1912 compulsory registration of voters for federal elections was introduced. in 1915 compulsory voting for state elections was introduced in queensland. in 1924 voting became compulsory in federal elections. this engenders widespread political debate within the community and through the media, with australians from all walks of life engaged: australian electoral commission (aec), ‘history of compulsory voting in australia’ (compulsory voting) <https://www.aec.gov.au/voting/ compulsory_voting.htm> accessed 28 november 2018. today, it is recognised 131 see leicester webb, communism and democracy in australia (fw cheshire 1954) 178; fay woodhouse, ‘the 1951 communist party dissolution referendum debate at the university of melbourne’ (honours thesis, university of melbourne october 1996) <http://vuir.vu.edu.au/30227/1/fay%20woodhouse.pdf> accessed 1 december 2018. 132 judith brett, robert menzies’ forgotten people (macmillan 1992); ian cook, liberalism in australia (oup 1999) ch 7; a w martin, robert menzies: a life (university of melbourne press 1993 & 1999) vols 1 & 2. 133 webb (n 131). 156 generally that the ‘no’ vote was right: banning the australian communist party and ‘communism’ would have taken the country down an autocratic road, with a potential for authoritarianism accompanied by political disruption and dispute. this was the very nature of the complexion cast by the menzies’ government on the party and organisations it sought to ban. it was the referendum provision’s requirements for a ‘double majority’ – of states and in overall population – that brought about the negative result. this requirement provides a safeguard that can be criticised yet which managed to provide a just outcome in the communist party case, and in the subsequent ‘yes’ vote for indigenous australian rights134 provided a just result, too. result135 state on rolls ballots issued for against invalid votes % votes % new south wales 1,944,219 1,861,147 865,838 47.17 969,868 52.83 25,441 victoria 1,393,556 1,326,024 636,819 48.71 670,513 51.29 18,692 queensland 709,328 675,916 373,156 55.76 296,019 44.24 6,741 south australia 442,983 427,253 198,971 47.29 221,763 52.71 6,519 western australia 319,383 305,653 164,989 55.09 134,497 44.91 6,167 tasmania 164,868 158,596 78,154 50.26 77,349 49.74 3,093 armed forces 9,472 6,478 2,917 82 total for commonwealth 4,974,337 4,754,589 2,317,927 49.44 2,370,009 50.56 66,653 obtained majority in three states and an overall minority of 52,082 votes. not carried * armed forces totals are also included in their respective states. can racism be undone? when humanity speaks in the voice of humanity – wrongs righted the third example – again from australia – relates to a proposal set out in a referendum which succeeded overwhelmingly, through intensive political action in an effort to right a grievous wrong. this arose from the fact that when australia was federated in 1901, indigenous australians were written out of the constitution. rather than the federal parliament taking responsibility for indigenous australian affairs, 134 see below. 135 parliament of australia (n 130). change the constitution? interpretation, (mis)calculation, wrongs righted or reaction & reiteration the denning law journal 157 control (and it was control) of torres strait islanders and aboriginal australians was left to the states. by 1962, the right of indigenous australians to vote in federal elections had been consolidated,136 and queensland, the last state to ensure indigenous australians’ the right to vote in state elections, conceded the right in 1965.137 however, the australian constitution contained racially discriminatory provisions requiring amendment. the offending sections provided: 51. the parliament shall, subject to this constitution, have power to make laws for the peace, order, and good government of the commonwealth with respect to: ...(xxvi) the people of any race, other than the aboriginal people in any state, for whom it is necessary to make special laws. 127. in reckoning the numbers of the people of the commonwealth, or of a state or other part of the commonwealth, aboriginal natives should not be counted. the 1967 referendum put the question whether the words ‘… other than the aboriginal people in any state …’ should be removed from section 51(xxvi), and whether section 127 in its entirety should be excised from the constitution. despite dissenters on both sides of politics, the constitution alteration (aboriginals) act 1967 (cth) was passed unanimously by the house of representatives and the senate, so that the referendum went ahead without an official ‘no’ case being presented. with almost 90 per cent of voters turning out to vote, the referendum resulted in the highest ‘yes’ vote ever recorded in a federal referendum. over 90 per cent (90.77 per cent) voted for the change, with a majority in every state. this was followed by the constitution alteration (aboriginals) act 1967 (cth), assented to on 10 august 1967, amending the constitution to give formal effect to the referendum outcome. that the result was so overwhelming was the consequence of a campaign waged since the inception of the commonwealth, which in turn was founded on the history from 1788 and the coming of captain arthur phillip, who became governor phillip of the colony established at sydney. the invasion, colonisation or 136 commonwealth electoral act 1962 (cth). 137 voting rights were extended to indigenous australians prior to these dates; however, there was little firm clarification until 1962 federally, and variation in state voting rights. see national archives of australia, ‘voting rights for aborigines – policy’a4940, c3496 (record search) <https://recordsearch.naa.gov.au/searchnretrieve/interface/detailsreports/ itemdetail.aspx?barcode=971071&isav=n> accessed 28 november 2018; australian electoral commission (aec), ‘electoral milestones for indigenous australians’, 10 october 2017 <https://aec.gov.au/indigenous/milestones.htm> accessed 28 november 2018. 158 settlement of australia spurred indigenous australians to action whether through wars or retaliation for colonial killings of aborigines, and submissions made for land rights and recognition of sovereignty.138 then, in the lead-up to federation, just as the 1890s constitutional conventions featured no representation by women, indigenous australians were absent. this was despite the activism of both and their agitation for recognition and rights.139 result140 state on rolls ballots issued for against invalid result votes % votes % new south wales 2,315,828 2,166,507 1,949,036 91.46 182,010 8.54 35,461 yes victoria 1,734,476 1,630,594 1,525,026 94.68 85,611 5.32 19,957 yes queensland 904,808 848,728 748,612 89.21 90,587 10.79 9,529 yes south australia 590,275 560,844 473,440 86.26 75,383 13.74 12,021 yes western australia 437,609 405,666 319,823 80.95 75,282 19.05 10,561 yes tasmania 199,589 189,245 167,176 90.21 18,134 9.79 3,935 yes australian total 6,182,585 5,801,584 5,183,113 90.77 527,007 9.23 91,464 yes obtained majority in all six states and an overall majority of 4,656,106 votes.[615] carried 138 see al grassby and marji hill, six australian battlefields (allen & unwin 1988); noel a loos, invasion and resistance: aboriginal-european relations on the north queensland frontier 1861–1897 (anu press 1982); henry reynolds, forgotten war (newsouth books 2013); peter stanley, the remote garrison: the british army in australia 1788–1870 (kangaroo press 1986); robert foster, rick hostling and amanda nettleback, fatal collisions: the south australian frontier and the violence of memory (wakefield press 2001). 139 on women, see jocelynne a. scutt, ‘the long, long struggle for equal pay and pay equity’ (phd thesis, university of new south wales 2006); scutt, ‘are women persons’ (n 41); robin r joyce, ‘feminism: an early tradition amongst labour women’ women and labour conference, all her labours, vol. 1 (1984, hale & iremonger); robin r joyce, ‘labour women: political housekeepers or politicians’ in marian simms (ed) australian women and the political system (longman 1984); sources (n 3); on indigenous australians (n 9). 140 table taken from parliamentary library of australia, ‘part 5 – referendums and plebiscites – referendum results’, handbook of the 44th parliament, 2014, canberra, act, australia. change the constitution? interpretation, (mis)calculation, wrongs righted or reaction & reiteration the denning law journal 159 indigenous and non-indigenous australians worked together in the campaign for the 1967 referendum. from early in the 20th century proposals were put forward that the federal government should, contrary to the constitution’s negative provisions, exercise powers in relation to aborigines. as gardiner-garden points out,141 by august 1910 the australian board of missions was calling upon both federal and state governments ‘to agree to a scheme by which all responsibility for safeguarding the human and civil rights of the aborigines should be undertaken by the federal government’, then in 1911 the commonwealth government took from south australia responsibility for the northern territory. as the indigenous australian population of the northern territory was substantial relative to the states, this meant as a practical matter that the federal government moved into ‘native welfare administration’, previously a sole state responsibility.142 some twenty years later, relying upon state and colonial governments, having been ‘tried from the earliest days of colonisation’, was said by the association for the protection of the native races of australasia and polynesia to have ‘undeniably failed’. the federal government was more likely, the association argued, to ‘deal with the whole problem [sic] more adequately’ than the state governments.143 this was contradicted by a 1929 royal commission into the constitution which determined by majority that ‘on the whole the states are better equipped for controlling aborigines than are the commonwealth’. that the federal parliament should ‘accept responsibility’ for indigenous australians’ well-being was the basis of the dissenting report.144 during the second world war john curtin’s labour government sought to place aborigines and torres strait islanders within commonwealth government 141 see generally j gardiner-garden, the origin of commonwealth involvement in indigenous affairs and the 1967 referendum, background paper no 11 (1996–97) parliamentary library, canberra, act, australia, 1997; j gardiner-garden, the 1967 referendum – history and myths, research brief no 11 (2006–07), parliamentary library, canberra, act, australia, 2007; national museum australia, ‘the referendum, 1957–67’, collaborating for indigenous rights 1957–73 <http://indigenousrights.net.au/ civil_rights/the_referendum,_1957-67> accessed 28 november 2018; parliamentary library, parliamentary handbook of the commonwealth of australia: 44th parliament, parliamentary library, canberra, act, australia, 2014, <http://apo.org.au/node/54064> accessed 28 november 2018. 142 gardiner-garden (n 142). 143 ‘the aborigines – letter to the editor’ (sydney morning herald 25 january 1911) quoting bain attwood and andrew markus, ‘1967 and all that: narrative and myth, aborigines and australia’, australian historical studies, vol 29 (no 111) october 1998 73; cited gardiner-garden (n 142). 144 report of the royal commission on the constitution, parliamentary papers, 1929– 1930–1931, vol 1, pt 1, 270, 303; cited gardiner-garden (n 142) 5. 160 responsibility and to ensure their inclusion in the planned post-war reconstruction. plans for post-war reconstruction included a panoply of programmes to be established to advance housing construction, industrial development, planning and economic management. a referendum went forward in 1944 seeking constitutional change by proposing the transfer to the federal government fourteen powers held by the states, to be time limited to the duration of the war and five years after its conclusion. one of the fourteen powers listed for transfer anticipated the 1967 referendum: making laws with respect to ‘the people of the aboriginal race’. the attorney general of the time, herbert (‘bert’) vere evatt, a principal proponent of the 1944 referendum, stated that at the 1942 constitutional convention leading up to the referendum ‘strong representations [were] made’ that this responsibility should be taken over by the commonwealth.145 the referendum failed, more likely due to the scope of the other thirteen powers sought to be transferred from states to commonwealth than indicative of any antagonism in respect of the indigenous responsibility question.146 however, it gave an added impetus to the indigenous rights campaign. indigenous and non-indigenous australians joined together in organisations, demonstrations and marches, lobbying government and opposition. the aboriginal league worked with the federal council for the advancement of aborigines and torres strait islanders (fcaatsi), alongside older and more newly formed organisations, including the aboriginal australian fellowship (aaf), aborigines education union (aeu), aborigines progressive association, committee for aboriginal citizenship and council for aboriginal rights. faith bandler, whose father was a kanaka ‘blackbirded’147 from the pacific islands to queensland to work in the sugar cane industry, was prominent in the aeu and fcaatsi,148 145 b griffen-foley, ‘dr h.v. evatt and letters to the press in the 1944 referendum campaign’ (australian society for the study of labour history) <http://www. labourhistory.org.au/hummer/vol-2-no-1/evatt-and-letters/> accessed 28 november 2018; b griffen-foley, ‘“a nearly great man”: dr h.v. evatt in the press’ (ba hons thesis, macquarie university) ch 3; parliament of australia, house of representatives, commonwealth parliamentary debates 20 july 1944, 351. 146 gardiner-garden (n 142). 147 ‘blackbirding’ was the name given to the slave trade operating between the pacific islands and queensland, with kanakas kidnapped and forced into working on the sugar cane plantations. see faith bandler, wacvie (rigby 1977); welou, my brother (wild & woolley 1984). 148 faith bandler, turning the tide: a personal history of the federal council for the advancement of aborigines and torres strait islanders (aboriginal studies press 1989); faith bandler, ‘a good innings’ in j a scutt (ed), as a woman – writing women’s lives (artemis publishing 1992), 166–76. change the constitution? interpretation, (mis)calculation, wrongs righted or reaction & reiteration the denning law journal 161 working with non-indigenous australians jessie street149 and diana (di) graham150 and indigenous rights activists pearl gibbs151 and len fox.152 one of the most recognised in the struggle and success of the 1967 referendum, faith bandler writes of being approached by pearl gibbs to become involved, gibbs telling bandler that she must ‘get up out of her comfort zone’ and ‘get activist, get working’. faith took the message to heart and put in ten solid years of activism in lobbying for the referendum and to persuade the australian public that ‘now was the time’ to eliminate racism from the constitution and to include indigenous australians as equally entitled as their non-indigenous counterparts. in 1957 gibbs, bandler, street, fox and graham worked together, eventually engaging hundreds more, on a petition launched by the aaf to change the australian constitution. this led directly to the referendum. initially, the bill that was required to enable the referendum to be run included reference to section 127 alone. prime minister robert menzies saw section 51(xxvi) as essential for the protection of indigenous australians against discrimination by the commonwealth parliament, for the power enabling parliament to make special laws encompassed the right to make discriminatory laws. the exclusion of ‘the people of the aboriginal race’ from section 51 of the constitution meant no valid laws could be passed by the commonwealth that would ‘treat them as people outside the normal scope of the law’ or deny them enjoyment of benefits granted to other australian citizens and impose upon them burdens not imposed upon other australian citizens. giving the commonwealth parliament the power ‘to make special laws with respect to the aboriginal race’, said menzies, ‘that power would very likely extend to enable the parliament to set up, for example, a separate body of industrial, social, criminal and other laws relating exclusively to aborigines’.153 149 jessie street, truth or repose (australasian book society 1966); peter sekuless, jessie street: a rewarding but unrewarded life (prentice hall 1978); heather radi, jessie street, documents and essays (women’s redress press 1990); jessie street and lenore coltheart (eds) jessie street: a revised autobiography (federation press 2004). 150 di graham, ‘in pursuit of equality’ in j a scutt (ed), different lives – reflections on the women’s movement and visions of its future (penguin books australia 1987), 178–87. 151 heather goodall, ‘gibbs, pearl mary (gambanyi) (1901–1983)’ in australian dictionary of biography in australian dictionary of biography (melbourne university press 2007) vol 17; heather goodall, ‘pearl gibbs: some memories’ (1983) 7 aboriginal history 20–26. 152 faith bandler (contributor), the time was ripe (alternative publishing cooperative 1983); faith bandler and len fox, marani in australia (alternative publishing cooperative 1986). 153 house of representatives, hansard, 11 november 1965, 2639; quoted gardinergarden (n 91). 162 the australian labour party opposition leader at the time, arthur calwell, advocated for the inclusion of section 51(xxvi) along with section 127 in the referendum bill, and ultimately menzies view did not prevail,154 for upon his retirement in 1966 the new liberal party leader and prime minister harold holt reconstituted the bill to include both.155 gordon bryant, who became minister for aboriginal affairs in the 1972 gough whitlam labor government, and whitlam himself when in opposition promoted the principle that the federal government should exercise responsibility in the field of indigenous australian rights, particularly human and civil rights, housing, provision of medical and legal services, and land rights.156 that the referendum succeeded so well is attributed by max griffiths157 and gardiner-garden to factors coming increasingly into play during the 1960s, including: a. increasing numbers of aborigines drifting from reserves and traditional country to become fringe-dwellers alongside larger non-aboriginal communities; b. the resource boom bringing development to areas where many aborigines continued to live traditionally and who did not welcome this activity; c. many missionary groups beginning to question their paternalistic practices; d. many aborigines who had been educated, even if also embittered, in missions or in non-aboriginal communities becoming articulate aboriginal leaders; e. a growing international interest in human rights issues, and particularly in racial discrimination; f. a growing general awareness (possibly contributed to by television and the family car) of the poor socio-economic situation of the indigenous population; g. a growing awareness amongst policy makers of a movement towards decolonization (including the movement towards independence for new guinea).158 154 unfortunately the australian high court has held menzies’ view to be correct, meaning that the commonwealth does have power to pass laws under section 51(xxii) that are not solely beneficial to indigenous australians: kartinyari and ors v the commonwealth [1998] hca 22, 195 clr 337, 152 alr 540, 72 aljr 722. 155 gardiner-garden (n 92). 156 jenny hocking, gough whitlam – a moment in history (university of melbourne press 2008); jenny hocking, gough whitlam – his time (university of melbourne press 2012). whitlam changed to ‘labor’ party permanently. 157 max griffiths, aboriginal affairs, a short history 1788–1995 (kangaroo press 1995) 72. 158 quoted directly from gardiner-garden (n 142). change the constitution? interpretation, (mis)calculation, wrongs righted or reaction & reiteration the denning law journal 163 the success of the referendum, and that it gained massive majority support around australia, was not taken by the federal liberal country party159 government as a mandate for engaging the commonwealth in substantial indigenous australian projects or programmes.160 it was not until the whitlam labour government was elected in 1972 that the referendum was honoured by the establishment of housing associations and funding bodies such as tangentyere council run by aboriginal people in alice springs, establishing and funding various educational programmes at school and university levels, and providing funding to already established bodies such as the aboriginal legal service and the aboriginal medical service.161 however, the 1967 referendum remains a highpoint in australia’s indigenous history and a distinctive confirmation that constitutional wrongs can be righted through a clearly articulated constitutional reform process. australian states were notorious for policies and practices detrimental to aboriginal people, and for their support of church-run organisations that engaged in control of aborigines and torres strait islanders by forcing them onto missions and imposing religion upon them, despite their having their own spiritual ceremonies and beliefs.162 justice in many ways remains elusive for indigenous australians, yet the referendum showed that australians, indigenous 159 now the national party of australia rather than the country party or australian country party (established 1920), the change occurring in 1982, with an intervening period from 1975 when it was titled the national country party: ‘the nationals for regional australia’ <http://nationals.org.au/> accessed 1 december 2018. 160 gardener-garden (n 142). 161 graham freudenberg, a certain grandeur: gough whitlam’s life in politics (viking, revised edn 2009); gareth evans, labor and the constitution 1972–1975: the whitlam years in australian government (heinemann 1977); gough whitlam, abiding interests (university of queensland press 1997); jenny hocking (n 157); zoe pollock, ‘aboriginal medical service’ (dictionary of sydney 2008) <https://dictionaryofsydney.org/ organisation/aboriginal_medical_service> accessed 1 december 2018. 162 see for example australian human rights commission, bringing them home: the stolen children report (ahrc 1997); colin tatz, ‘genocide in australia’ (1999) 1 journal of genocide research 315–52, <https://www.tandfonline.com/doi/abs/10.1080/ 14623529908413964?src=recsy> accessed 28 november 2018; asafa jalata, ‘the impacts of english colonial terrorism and genocide on indigenous/black australians’ (sage open 7 august 2013) <https://journals.sagepub.com/doi/full/10.1177/2158244013499143> accessed 28 november 2013; jocelynne a. scutt, ‘the stolen generations: stealing children, stealing culture, stealing lives’ in j a scutt (ed), the incredible woman – power and sexual politics (artemis publishing 1997) vol 2, ch 31, 215–30; aborigines and torres strait islanders legal service (qld), beyond the act (foundation for aboriginal and islander research, 1979). 164 and non-indigenous could come together to achieve a just outcome providing a foundation for future just claims.163 are united states’ women equal? wanted – ‘three more states …’: reaction and reiteration the fourth attempt at constitutional change – in the united states – was a proposal that languished for some fifty years, then revived – appeared to be leading towards success, then failed. chances are, thanks to actress meryl streep and fellow women’s rights activists, it may in rising again succeed.164 after united states’ women won the vote in 1920 with the passage of the nineteenth amendment, along with other activists alice paul165 and crystal eastman166 decided women’s rights should not end at the ballot box. they drafted what at first was known as ‘the lucretia mott amendment’, named after the abolitionist, women’s rights activist and women’s suffrage campaigner.167 it was submitted into the congress in 1923 and for many years annually, stating simply: ‘men and women shall have equal rights throughout the united states and every place subject to its jurisdiction’. in 1940 paul redrafted it to read: section 1. equality of rights under the law shall not be denied or abridged by the united states or by any state on account of sex. 163 see further scutt, ‘subverting or affirming indigenous rights – the australian problem writ large’ (n 10). 164 joanna walters, ‘meryl streep urges congress to back equal rights amendment’ the guardian (24 june 2015) <https://www.theguardian.com/film/2015/jun/23/meryl streep-congress-equal-rights-amendment> accessed 28 november 2018; inkoo kang, ‘meryl streep urges congress to pass the equal rights amendment (era)’ (indiewire 24 june 2015) <https://www.indiewire.com/2015/06/meryl-streep-urges-congress-topass-the-equal-rights-amendment-era-203318/> accessed 28 november 2018. 165 national women’s party (nwp), alice paul, our story, <https://www. nationalwomansparty.org/our-story> accessed 28 november 2018. 166 national women’s history museum, crystal eastman (1888–1921), education & resources – biography <https://web.archive.org/web/20120123051653/http://www.nwhm.org/educationresources/biography/biographies/crystal-eastman/> accessed 28 november 2018. 167 ‘lucretia mott’ (history network) <https://www.historynet.com/lucretia-mott> accessed 28 november 2018. change the constitution? interpretation, (mis)calculation, wrongs righted or reaction & reiteration the denning law journal 165 section 2. the congress shall have the power to enforce, by appropriate legislation, the provisions of this article. section 3. this amendment shall take effect two years after the date of ratification. it thereafter became known as ‘the alice paul amendment’ then, in the 1970s, was referred to simply as the equal rights amendment or era.168 the history of this effort to effect women’s rights went back to the civil war, when the us constitution was amended to add the thirteenth, fourteenth and fifteenth amendments. the thirteenth amendment was aimed at eliminating slavery. the fourteenth amendment provided that no state could abridge the privileges and immunities of citizens of the united states. the fifteenth amendment was designed to guarantee the right to vote, without regard to race. from the time they were passed, and indeed before, women fought to ensure that these amendments would protect all citizens’ rights, women and men. however, they were faced with the ‘person’, ‘male’, ‘female’, ‘woman’, ‘man’ issue that confronted women throughout the common law world. in particular, the fourteenth amendment included the word ‘male’ and this concluded the matter so far as courts (peopled by male justices only) were concerned. women were not included, so women were not protected, and women were not considered thereby to gain equal rights with men. the passage of the nineteenth amendment in 1919 and its ratification in 1920 resolved the question of suffrage. this galvanised paul and eastman, generating their actions designed to ensure that women should have all the same rights and privileges as men. their aim, consistent with the fourteenth amendment’s prohibition on the denial of privileges and immunities to male citizens regardless of race, was for equal rights for women. despite notions that women’s activism collapsed after the vote was won, women remained involved at all levels, including the peace movement, the struggle for equal pay, activism against violence against women, and promotion of women into public life.169 in the late 1960s the war in vietnam engaged a new generation and spawned a host of books, journals and samizdat publications. 168 national women’s party (nwp), ‘the nwps fight for equality’, our story <https:// www.nationalwomansparty.org/our-story> accessed 28 november 2018. 169 see for example mary ritter beard, woman as a force in history. a study in traditions and realities (macmillan 1946); evelyn reed, ‘the myth of women’s inferiority’ (1954) 15 fourth international 58–66; alice s rossi, ‘equality between the sexes: an immodest proposal’ (1964) 93 daedalus 607–52; betty friedan, the feminine mystique (ww norton & co 1963). see also scutt, ‘are women persons’ (n 41). 166 amongst others, activists included gloria steinem,170 bella abzug,171 betty friedan,172 shulamith firestone,173 susan brownmiller,174 andrea dworkin,175 robin morgan,176 catharine mackinnon177 and kate millet.178 this led to a new forcefulness in promoting the equal rights amendment. it also produced an aggressive counter-movement, the principal promoter of which was phyllis schlafly.179 the equal rights amendment emerged from congress on 22 march 1972 with a greater than 90 per cent vote in support. over the ten years from the date it began its trek around the states to be endorsed by state legislatures, up to the extended deadline of 30 june 1982 when the equal rights amendment stood defeated in the absence of three of the thirty-eight states required for its ratification, women’s rights activists struggled against conservative arguments. hawaii was the first state to ratify, and in the year immediately following some thirty states followed suit.180 yet the process then faltered, as the conservative voices opposing it, phyllis 170 gloria steinem <https://www.gloriasteinem.com/> accessed 1 december 2018. 171 humanities – history & culture, ‘bella abzug – activist and member of congress’ (thoughtco) <https://www.thoughtco.com/bella-abzug-biography-3525012> accessed 28 november 2018. 172 people, ‘betty friedan – women’s rights activist, activist, journalist (1921–2006)’ (biography) <https://www.biography.com/people/betty-friedan-9302633> accessed 28 november 2018. 173 humanities – history & culture, ‘shulamith firestone – radical feminist, theorist and author’ (thoughtco) <https://www.thoughtco.com/shulamith-firestone-biography 3528984> accessed 28 november 2018. 174 profiles, ‘susan brownmiller, author of “against our will”’ (makers) <https://www. makers.com/profiles/591f27815bf6236c3464b1c4> accessed 28 november 2018. 175 people, ‘andrea dworkin – women’s rights activist, activist (1946–2005)’ (biography) <https://www.britannica.com/biography/andrea-dworkin> accessed 28 november 2018. 176 (robin morgan) <https://www.robinmorgan.net/> accessed 1 december 2018. 177 michigan law, ‘mackinnon, catharine a’ (faculty biographies – university of michigan) <https://www.law.umich.edu/facultybio/pages/facultybio.aspx?facid=camtw> accessed 1 december 2018. 178 julie bindel, ‘kate millet – obituary’ the guardian (8 september 2017) <https:// www.theguardian.com/world/2017/sep/07/kate-millett-obituary> accessed 28 november 2018. 179 education reporter, ‘the life and legacy of phyllis schlafly’ (phyllis schlafly – eagles) <https://www.phyllisschlafly.com/phyllis/ accessed 1 december 2018. 180 this day in history, ‘march 22 – equal rights amendment passed by congress’(history) <https://www.history.com/this-day-in-history/equal-rights-amendment passed-by-congress> accessed 28 november 2018. change the constitution? interpretation, (mis)calculation, wrongs righted or reaction & reiteration the denning law journal 167 schlafly’s prominent amongst them, spoke out at rallies and attended numerous coffee morning conversations, gained endorsement from evangelical churchmen, were taken up by the media, and rallied women to take up the opposition banner.181 a constitutional lawyer, conservative political activist, campaigner against abortion and communism as well as the equal rights amendment, schlafly worked full-time whilst urging women to retain traditional roles and to fight against the era in order to do so.182 the acronym standing for ‘stop taking our privileges’ her ‘stop era’ movement campaigned upon the principle that the equal rights amendment would deny women privileges they possessed simply by being women. it reflected william blackstone’s 18th-century proposition that the common law tenet that in marriage the husband and wife ‘became one, that one being the husband’ advantaged women and that ‘even the disabilities which the wife lies under are for the most part intended for her protection and benefit: so great a favourite is the female sex of the laws of england’.183 schlafly and her stop era crusade relied upon ‘states rights’ sentiments, arguing that the equal rights amendment would transfer power from the states to the federal government. she posited that the era meant:184 a. endorsement and promotion of homosexual marriages: traditional gender roles were essential for preserving the family; therefore, the era was ‘against’ family life and the family as an institution that protected women; b. women going into combat alongside men: military service for women violated traditional gender norms and this in turn would weaken the combat strength of the military; c. taxpayer funded abortions: abortions denied the right to life, undercut women’s role as ‘life makers’ and homemakers, weakened the family structure, and weakened women’s place as producers of the new generations; 181 linda napikoski, ‘stop era: phyllis schlafly’s campaign against women’s equality’ (thoughtco, 28 february 2018 (updated)) <https://www.thoughtco.com/stopequal-rights-amendment-3528861> accessed 28 november 2018. 182 douglas martin, ‘phyllis schlafly, “first lady” of a political march to the right, dies at 92’ the new york times (5 september 2016) <https://www.nytimes.com/2016/09/06/ obituaries/phyllis-schlafly-conservative-leader-and-foe-of-era-dies-at-92.html> accessed 1 december 2018. 183 william blackstone, commentaries on the laws of england, vol 1, 1765, 442–45, <https://www.thoughtco.com/blackstone-commentaries-profile-3525208> accessed 28 november 2018. 184 see generally napikoski (n 182); jane mansbridge, why we lost the era (university of chicago press 1986); catharine mackinnon, ‘unthinking era thinking’ (1987) 54 university of chicago law review 759–67. 168 d. unisex bathrooms or lavatories: this would deny safe spaces for women and redounded against women’s rights to feminine expression and female-only facilities; e. abolition of or tampering with rape laws and laws governed by gender in defining sex crimes: women’s safety and protection of the laws would be removed or undermined; f. elimination of widow’s social security benefits: as women should remain in the home and not participate in the paid workforce, their right to pensions and benefits would be denied because they had contributed no income tax; g. damage families: a husband’s legal responsibility to support his wife and family would be abolished, as would a wife and mother’s entitlement to child support and alimony, as now being governed by gender neutrality; h. undermine men’s rightful authority over women: the proper power relationship for well-functioning families and public institutions was to maintain men ‘on top’, not make them subordinate to women. these ‘reasons to stop the era’ were publicised by schlafly and her cohort, taken up by media, conservative politicians and fundamentalist ecclesiasticals.185 pro-era women worked through women’s organisations, particularly now – the national organisation for women, set up by betty friedan, pauli murray, muriel fox and others in october 1966 with 300 founding members.186 on 21 may 1969 congresswoman shirley chisholm of new york spoke in the house of representatives in favour of the equal rights amendment, proposing that the congress take the first step in ensuring its place as an addition to the bill of rights.187 she set out the reasons for her advocacy of the era going forward to the states for ratification. ‘mr speaker’, she said: … [w]hen a young woman graduates from college and starts looking for a job, she is likely to have a frustrating and even demeaning experience ahead of her. if she walks into an office for an interview, the first question she will be asked is, ‘do you type?’ 185 mansbridge 1986 (n 185). 186 including catherine conroy, inka o’hanrahan, rosalind loring, mary eastwood, dorothy haener, kay clarenback, gene boyer and analoyce clapp, now – national organisation for women <https://now.org/> accessed 28 november 2018. 187 shirley chisholm, ‘equal rights amendment for women’ (duke university libraries – digital collections 21 may 1969) <https://library.duke.edu/digitalcollections/wlmpc_ wlmms01015/> accessed 28 november 2018. change the constitution? interpretation, (mis)calculation, wrongs righted or reaction & reiteration the denning law journal 169 there is a calculated system of prejudice that lies unspoken behind that question. why is it acceptable for women to be secretaries, librarians, and teachers, but totally unacceptable for them to be managers, administrators, doctors, lawyers, and member of congress. the unspoken assumption is that women are different. they do not have executive ability, orderly minds, stability, leadership skills, and they are too emotional.188 chisholm went on to demolish (ahead of schlafly’s stop era movement) the very arguments that were to form the foundation of the movement against the era and which ultimately succeeded. in the first year of its journey around the states, twenty-two states ratified: alaska, california, colorado, delaware, hawaii, idaho, iowa, kansas, kentucky, maryland, massachusetts, michigan, nebraska, new hampshire, new jersey, new york, pennsylvania, rhode island, tennessee, texas, west virginia and wisconsin. the following year, 1973, eight more states ratified: connecticut, minnesota, new mexico, oregon, south dakota, vermont, washington and wyoming.189 the velocity then appreciably slowed with 1974 seeing three states alone ratifying: maine, montana and ohio. in 1975 north dakota alone said ‘yes’, whilst in 1976 no states did so. on 18 january 1977 indiana ratified, the final state to take that step. the three-fourths rule applying to constitutional amendments,190 even with the three-year extension the amendment fell short. no states took advantage of the new ‘finish’ date. as another blow to equal rights amendment proponents, some legislators changed their minds, moving from a ‘yes’ to a ‘no’ position. boycotts organised by now and other pro-era organisations made no difference.191 fifteen states had stood firm against ratification: alabama, arizona, arkansas, florida, georgia, illinois, louisiana, mississippi, missouri, nevada, north carolina, oklahoma, south carolina, utah and virginia. five states sought to rescind it: idaho, kentucky, nebraska, south dakota and tennessee.192 this raised questions as to the interpretation of the constitutional amendment rules and process.193 first, were states that had ratified entitled to undo the ratification at all? article v of the us constitution in setting out the amendment process refers to ratification only, 188 ibid 1. 189 shaping a new america, ‘57c. the equal rights amendment’, u.s.history.org <http:// www.ushistory.org/us/57c.asp> accessed 28 november 2018. 190 us constitution and amendments (n 34). 191 see now (n 187). 192 shaping a new america (n 190). 193 us constitution and amendments (n 34). 170 without any indication of states’ rights to rescind ratifications that have passed through their legislature in the way set out in article v. legal precedent exists for invalidating rescission of ratification of other amendments.194 second, was the amendment ratification left intact if it were accepted that the states were rescinding legally only incorrectly worded procedural resolutions? third, did the passing of the deadline render all era questions moot? that three states were needed to ratify at the expiry of the ratification period is said by some legal scholars to mean that the 35-state ratification remains valid, leaving three states more to be added for the equal rights amendment to pass today.195 the campaign launched in 2015 by meryl streep and joined by other high-profile women196 is impacting with a real possibility of the equal rights amendment becoming the next bill of rights amendment. although the virginia senate rules committee voted against to cries of ‘shame’ on 9 february 2018,197 on 20 march 2018 ratification went through the nevada legislature.198 then on 31 may illinois was the thirty-seventh state to ratify. the focus then returned to virginia. despite the senate committee’s view, on 16 january 2019 the virginia senate revisited the era. this time, the vote was in favour, 26:14 with seven republicans joining the nineteen democrats.199 political analysts said the next step would be more difficult, for the house of delegates ‘has never cleared’ the era resolution: del mark cole, r-pennsylvania, chairman of the privileges and elections committee, has said he’s not sure how he’ll handle the issue. eileen davis, 194 shaping a new america (n 190). 195 this is on the basis that the deadline for ratification was not contained in the equal rights amendment text, but was part of the accompanying instructions only: ibid. 196 walters (n 165); kang (n 165); wunrn, ‘usa – era: equal rights amendment – campaigning & film by high profile hollywood stars’ (women’s un report network) <https://wunrn.com/2016/04/usa-era-equal-rights-amendment-campaigning-film-byhigh-profile-hollywood-stars/> accessed 28 november 2018. 197 catherine marshall, ‘virginia committee votes down equal rights amendment’ (eagle forum) <https://eagleforum.org/topics/era/virginia-committee-votes-down-era. html> accessed 20 december 2018. 198 colin dwyer and carrie kaufman, ‘nevada ratifies the equal rights amendment … 35 years after the deadline’, the two-way: breaking news from npr, 21 march 2018 <https://www.npr.org/sections/thetwo-way/2017/03/21/520962541/nevada-on-cusp-ofratifying-equal-rights-amendment-35-years-after-deadline> accessed 20 december 2018. 199 karen kirk, ‘virginia senate passes era resolution’ (the blue view 21 january 2019) <http://blueviewfairfax.org/2019/01/16/virginia-senate-passes-era-resolution/> accessed 20 january 2019. change the constitution? interpretation, (mis)calculation, wrongs righted or reaction & reiteration the denning law journal 171 co-founder of women-matter.org, said last month that even though the senate has passed the resolution five times previously, cole had never put it on the house agenda.200 this proved true. on 22 january a virginia house of delegates subcommittee ‘killed four bills [designed] to ratify the federal equal rights amendment on a 4-2 party-line vote’.201 this outcome, ‘amid verbal conflicts between the [subcommittee] chairwoman and members of the audience’ was said to ‘mark the end’ of efforts of proponents in virginia to pass legislation ratifying the era, unless it was ‘brought up in the full house privileges and elections committee’ the following friday.202 on that day, republicans blocked a democrat move to have the matter debated before the house, so virginia lost out on becoming the thirty-eighth state to ratify.203 this leaves one more state to be gained for the amendment proposed in 1923, reconstituted in 1940, failing in 1978, and reiterated in 2015 to become law.204 yet even with ratification from one of the twelve states (omitting virginia) yet to endorse the equal rights amendment,205 whether the era is law may remain dependent upon the interpretation of the supreme court decision in coleman v miller.206 in coleman v miller the child labour amendment was in issue, the kansas legislature having voted against it, then ‘for’ it by the governor’s having certified it as having passed. the relevant finding vis-à-vis whether the campaign to achieve the ‘three more states’ required to meet the thirty-eight states stipulation for the equal 200 ibid. 201 georgia green, ‘virginia house subcommittee kills bills to pass equal rights amendment’ (vcu capital news service 22 january 2019) <https://eu.delmarvanow. com/story/news/local/virginia/2019/01/22/virginia-house-committee-kills-bills-passequal-rights-amendment/2648449002/> accessed 23 january 2019. 202 ibid. 203 ‘effort to revive era bill fails in virginia’ the washington post (25 january 2019) <https://www.washingtonpost.com/gdpr-consent/?destination=%2f local%2fvirginiapolitics%2feffort-to-revive-era-bill-fails-in-virginia%2f2019%2f01%2f25%2fcac45b5c-20cb11e9-8e21-59a09ff1e2a1_story.html%3f> accessed 29 january 2019. 204 bill chappell, ‘america – one more to go: illinois ratifies equal rights amendment’ (npr – breaking news from npr 31 may 2018) <https://www.npr.org/sections/thetwoway/2018/05/31/615832255/one-more-to-go-illinois-ratifies-equal-rights-amendment> accessed 1 december 2018. 205 alabama, arizona, arkansas, florida, georgia, louisiana, mississippi, missouri, north carolina, oklahoma, south carolina and utah. 206 307 us 433 (1939). 172 rights amendment is that the supreme court in coleman v miller held that congress, ‘in controlling the promulgation of a constitutional amendment’, has the power to make ‘the final determination of the question whether, by lapse of time’, the proposed amendment has ‘lost its vitality before being adopted by the requisite number of legislatures’.207 the argument against this is that the child labor amendment carried no stipulation as to the time period within which the amendment should be passed by thirty-eight states, whereas the equal rights amendment did and hence ‘does’.208 for those in favour of the (now) ‘one more state’ proposition, the argument is that the era itself carried no time requirement. it was a ‘resolving clause’ only, meaning the time stipulation is irrelevant.209 crucial to this is that congress did extend the deadline from 1978 to 1982; hence, there is (or should be) nothing to prevent congress from extending it again. furthermore, the twentyseventh amendment on congressional pay was one of the original twelve amendments and was ratified finally in 1992.210 questions do arise as to the renunciation by five legislatures (idaho, kentucky, nebraska, south dakota and tennessee) of their original era ratification, yet this is not fatal as there is a suggestion that these states left the amendment ratification intact, renouncing ‘incorrectly worded procedural resolutions’ only.211 a further argument is that on the authority of coleman v millar212 renunciation of ratification is a political question to be answered by congress, so that it is within the authority and power of the congress to accept the ratifications as they originally stood.213 despite phyllis schlafly’s death, her organisation the eagle forum remains active. the eagle forum and its supporters it could be anticipated as challenging reliance upon coleman v miller and likely seeking to intervene should the question go to the supreme court as may be the case. however, pro-era forces such as 207 ibid 451. 208 marshall (n 198). 209 dwyer and kaufman (n 199) citing senator pat spearman. 210 see cornell law school, ‘amendment of the constitution’ (legal information institute) <https://www.law.cornell.edu/constitution-conan/article-5/amendment-of-theconstitution> accessed 1 december 2018. 211 jone johnson lewis, ‘which states ratified the era and when did they ratify?’ (thought co) <https://www.thoughtco.com/which-states-ratified-the-era-3528872> accessed 28 november 2018. 212 kirk (n 201). coleman v miller found otherwise than had been considered in dillon v gloss 256 us 368 (1921), dealing with the eighteenth amendment on prohibition and addressing extension of time for ratification. 213 see generally edwin s corwin and mary louise ramsey, ‘the constitutional law of constitutional amendment’ (1951) 26 notre dame law review 185–213. change the constitution? interpretation, (mis)calculation, wrongs righted or reaction & reiteration the denning law journal 173 now (the national organisation for women)214 and the era coalition215 appear to be more active and organised. additionally, it is not insignificant that illinois has ratified. this was schlafly’s home state, the centre of her 1970s campaign against the equal rights amendment, and the home state of the eagle forum. albeit the virginia response indicates that there remain those who retain an oppositional stance to the era, many argue that much of what the era stood for and stands for has become law in any event.216 that illinois, the anti-era stronghold, is not only no longer in opposition but has voted in favour presages well for pro-era forces. furthermore, the fight has moved to washington, dc. there, on the very day of the virginia defeat, a bi-partisan democrat-republican announcement of a bid to re-introduce the era resolution into the senate seemed to auger well for the equal rights amendment.217 maryland democrat senator ben cardin and alaskan republican senator lisa murkowski announced the introduction of a senate resolution to ‘immediately reopen consideration of the equal rights amendment (era)’ by ‘immediately removing the ratification deadline and reviving consideration of the era by the states’.218 effectively, cardin and murkoswki said, this would overcome any doubts generated by coleman v miller.219 the cardin-murkowski resolution is designed to ‘immediately remove the ratification deadline’, removing once and for all the issues raised by opponents.220 the united states experience as exemplified here in the equal rights amendment saga is a reflection upon the constitutional amendment process: once having failed, an amendment can (per coleman v miller) be re-continued or reactivated and validated. for united states women and all committed to ensuring women and men are equal under the law, the 19th-century omission of women 214 see now (n 187). 215 ‘equal means equal’ (era coalition) <http://www.eracoalition.org/> accessed 28 november 2018. 216 ibid. those opposing the era say it will ‘harm the family’ and ‘likely boost abortion rights’. 217 ‘cardin, murkowski introduce bi-partisan measure to ensure women equal rights in the constitution’ press release, office of ben cardin – us senator for maryland 25 january 2019 <https://www.cardin.senate.gov/newsroom/press/release/cardin-murkowskiintroduce-bipartisan-measure-to-ensure-women-equal-rights-in-the-constitution> accessed 29 january 2019. 218 ibid. 219 coleman v miller (n 207). 220 senators cardin and murkowski effectively address the issues raised by coleman v miller (n 207) relying upon the arguments which are recounted in this article. 174 from the amendments coming out of the civil war to extend equality in recognition of the unequal status of african americans may be rectified. conclusion reflecting on these examples of constitutional change, politics was central to each proposal. politics was the reason for failure or success. perhaps in the first example, canada and the question of whether a woman is a person, personal politics played a part alongside the intensive broader political agitation and expectation characterising all four examples of constitutional change. yet ultimately that ‘the personal is political’, a feminist invocation from the 1970s,221 needs to be recognised as playing a part in all political agitation and manoeuvring, whether for change or for retaining constitutions unchanged. looking at the ‘person’ equals ‘woman’ proposition, in the context of the equal rights amendment example, although back in 1930 the privy council was able to put to one side the cases denying women personhood, unfortunately too much us supreme court case law stands in the way. an amendment through the us constitutional amendment process is generally accepted as necessary, rather than the privy council’s interpretation route being possible so as to revivify the constitutional amendments emanating from the civil war.222 the struggle between pro-era woman and anti-era women played a significant part in the delay which has now led to the argument that the time factor cannot be overcome. the current composition of the us supreme court may be a negative factor for era proponents if the extension of time question goes to the court for an answer. yet, as noted, the privy council was not seen as a progressive body yet it was the first judicial entity to recognise women as persons. perhaps the supreme court may, despite its perceived ‘right wing’ majority, concentrate on the issue at hand: namely whether congress has the power to extend time as in coleman v miller,223 rather than indulging in arguments against women’s rights. the australian example of a referendum that received a ‘no’ vote from an equal number of states and a ‘no’ from a relatively slim majority: the referendum to ‘ban’ the australian communist party224 can be contrasted against the united 221 see linda napikoski, ‘the personal is political’ (thoughtco 31 december 2017 (updated)) <https://www.thoughtco.com/the-personal-is-political-slogan-origin-3528952> accessed 12 december 2018. 222 see ‘are united states women equal …’ above. 223 green (n 202). 224 see ‘fighting the “red peril” …’ above and australian communist party v the commonwealth (n 87). change the constitution? interpretation, (mis)calculation, wrongs righted or reaction & reiteration the denning law journal 175 kingdom ‘brexit’ referendum.225 in the latter case, the slim majority based on voluntary voting and a ‘first past the post’ referendum voting system has led to ongoing disputation, with arguments for another referendum (with ‘remainers’ hoping for a contrary outcome), albeit it is difficult to see that that would resolve the ‘brexiteers’ vs ‘remainers’ argument. compulsory voting226 and the preferential voting system applicable to australian federal and most state and territory elections means that referendums are not a matter of ‘who happens to vote’ but one engaging all australians of eighteen years and above, and even seventeen-year-olds who have a right to register pending their reaching eighteen years and the right (and duty) to vote.227 compulsory voting does appear to promote political awareness and engagement, without the situation now pertaining in the united kingdom under ‘brexit’ where many of those who did not vote are now reported as regretting this. one ‘remainers’ argument is that the former non-voters now wish to rectify this by voting ‘yes’ on a ‘people’s vote’ basis.228 the successes for canada in ‘the persons case’ and australia in the indigenous rights case, together with the failure for australia in the ‘reds’ case affirm that the right outcome is possible through proposals for constitutional change. where voting is in issue, sometimes, ‘yes’ is the right outcome, as with the 1967 australian referendum. sometimes, the right outcome is ‘no’ as with the australian ‘ban the communist party’ referendum. for the united states, the failure of the era case, yet its reiteration in the 2000s with a real possibility of the equal rights amendment becoming the twenty-eighth amendment to the united states constitution, affirms martin luther king’s words: ‘the arc of the moral universe is long, but it bends towards justice.’ 225 see ‘referendum rules and precedents’, ‘united kingdom’, above. 226 introduced in queensland in 1915 and for australian federal elections in 1924 and now extending to all states and territories: ‘compulsory voting’ (australianpolitics) <http://australianpolitics.com/voting/compulsory-voting> accessed 24 november 2018. 227 ibid. 228 some object to the ‘people’s vote’ terminology and proposition, the british labour party for example seeking a ‘public vote’, prioritising a general election to ensure that the people have a real opportunity to express their wishes for a new government to pursue a new eu ‘deal’ rather than that currently on offer from the theresa may-led conservative government. occupational pensions: securing the pension promise* roy goodet i received the invitation to deliver this lecture with decidedly mixed feelings. i was, of course, flattered to be asked to contribute to this long-established series so generously sponsored by the royal bank of scotland. but having embarked in 1992 on an enquiry in a field about which i knew absolutely nothing, and spent a fascinating 15 months with extraordinarily knowledgeable colleagues before handing in our report, i have been trying desperately ever since to escape from everything to do with occupational pensions. this has proved a good deal more difficult than i had thought! as i am sure you are all aware, today is the second anniversary of the establishment of the pension law review committee. i will not ask whether you regard this as a happy event or a cause for grief. suffice it to say that our two-volume report, which contains 218 recommendations and weighs some 118 ounces, was delivered to the secretary of state on 30 september 1992, seven consulatation papers were issued by the department of social security [d.s.s.] in the ensuing months,. the most recent publication of the house of commons select committee on social security (on whose recommendation we were set up) is given over entirely to a report on our report, and a government white paper is imminent. what will be in it i do not know. my hope is that it will substantially adopt the package of proposals we put forward, with whatever fine tuning may be necessary. but we shall see. i general considerations my talk tonight is devoted to a central plank of our report, security for the pension promise. by the pension promise i mean the totality of retirement and related benefits promised to a worker by his employer. the provision of an occupational pension scheme is a voluntary act on the part of an employer. it is for the employer to decide whether to provide a pension, what should be the conditions of eligibility and level of contributions and benefits, and what powers of amendment and wind-up the employer wishes to reserve. we have considered that in general the employer should continue * this is the revised text of the royal bank of scotland lecture, delivered at the university of oxford on 8th june 1994. t norton rose professor of english law in the university of oxford, fellow ofst. john's college, oxford. 15 the denning law journal to enjoy these freedoms. there are, of course, existing legislative restrictions on this freedom of trust, such as the preservation of accrued rights after two years' service and the indexation of deferred pensions, and we have recommended a few more. but the employer cannot be expected to leave its future financial commitments to be determined by third parties. what we have said, however, and very firmly, is that whatever benefits are promised should be properly secured. there are many different types of event that can jeopardise the solvency of a pension fund, but they fall broadly into three groups. first, there is deliberate underfunding of the scheme. the employer is not obliged to set up a scheme or to fund it at any particular level. there are many unfunded schemes, primarily top-up schemes to provide pensions above the earnings cap. a measure of funding is required as a condition of tax exemption or to secure contractingout status, but it is a relatively small proportion of the cost of benefits under a normal final salary scheme. secondly, there are the normal forecasting risks: the falsification of economic projections, such as salary growth and the relationship between earnings and prices, and of demographic projections, such as mortality rates and rates of withdrawal through ill-health, early retirement or redundancy. these matters are the domain of the actuary, and they are pregnant with uncertainty. indeed, the only actuarial assumption that is invariably right is that all other actuarial assumptions are invariably wrong! the law faces a delicate problem in this area. on the one hand, it has to respond to the need for flexibility in order to accommodate the myriad situations that can arise. on the other, the range of permitted assumptions must not be so broad as to undermine the entire credibility of the actuarial exercise. this is a problem we urged the actuarial profession to address, and it is doing so with vigour. thirdly, there are what may be termed pathological risks, of the kind so vividly demonstrated by the maxwell affair: excessive self-investment, failure to pay contributions when due, and the theft of pension fund assets or their diversion to improper purposes which wrongfully benefit third parties at the expense of the pension fund. my primary concern is with the security of pensions payable under final salary schemes. members of money purchase schemes may suffer from misappropriation or negligent investment of assets but the risk of ordinary underfunding does not arise in money purchase schemes, which are by their nature fully funded, since the benefits are measured directly by the value of contributions to the fund. there are various ways in which the pension promise may be secured. one is by insuring the benefits, which in this country is very common for the smaller schemes. but wholly insured schemes, which are almost always money purchase, rarely attract the problems i am addressing. another is termination (or insolvency) insurance, of the kind exemplified in america under erisa through the pension benefit guarantee corporation [p.b.g.c.] this form of security no doubt has its place. but as the american experience shows it is no substitute for adequate funding the p.b.g.c. is currently facing a deficit estimated at between 12 billion and 20 billion dollars 16 occupational pensions: securing the pension promise? and one expert has estimated that the total amount of underfunding in the united states amounts to 51 billion dollars and raises a serious moral hazard issue in that the premiums levied on pension funds result in well-funded schemes subsidising those that are poorly run. the third route, adopted in this country for the vast majority of schemes, is funding, and that is the route we have followed. our basic approach has been that schemes should be required to be fully funded at all times. of course, this would not solve all the problems. premature wind-up of a scheme causes problems for scheme members even if there is a sufficiency of assets to cover accrued liabilities, for benefits cease to accrue and the final salary benchmark will be that at the time of wind-up, not the final salary the scheme member would have received if the scheme had continued and he or she had remained in it until normal retirement age. but we did not feel anything could be done about this. just as loss of employment is an inherent, though regrettable, risk of everyday life, so also is the possibility of a scheme wind-up. what one can do is to seek to ensure that the scheme assets are sufficient to cover entitlements accrued up to the date of wind-up. under the present law the employer is liable for any deficiency in assets on the wind-up of a scheme. accordingly so long as the employer remains solvent scheme members are already adequately protected against the risk of scheme insolvency. this is subject to the important qualification that the employer's statutory duty on wind-up of a scheme is not to ensure that the pensions are able to be paid when due but to pay the cash equivalent of the accrued rights. if the actuarial calculation of the cash equivalent turns out to be accurate it will be sufficient to cover the accrued liabilities. but the cash equivalent provisions undoubtedly change the nature of the pension promise, from final salary to money purchase. there is no guarantee that the cash equivalent will in fact be sufficient to purchase or otherwise provide for salary-related pensions. for practical reasons i shall indicate a little later, it has not proved possible to overcome this particular problem. subject to this qualification, there is at the end of the day only one risk for scheme members, the insolvency of the employer and its consequent inability to make good a scheme deficit in accordance with the statutory requirements. unfortunately there is no way of securing the employer's continued solvency. no company, however, strong it may appear, is wholly immune from the risk of insolvency. this means that the present regime, by which statutory liability is imposed on the employer only at the point when the scheme or the employer is wound up, is inherently inadequate, for the protective measure comes too late. what is required is full funding continuously throughout the scheme and steps to ensure that this is maintained. a full funding requirement is, of course, concerned with any case of asset deficiency, from whatever cause, and the first half of my talk will examine the implications of our proposals for funding and the responses these have received. but the risk of loss of assets through pathological events calls for additional protective measures. these will form the second half of this lecture. 17 the denning law journal ii the concept of full funding within the limits of what is practicable our strongly held view was that the pension promise should be fully funded at all times. to promise scheme members more than the scheme can actually deliver is a dangerous snare for members rely, and are entitled to rely, on the integrity of the pension promise. there are those who say that to provide adequate security by a full funding requirement could lead to a reduction in guaranteed benefits and a corresponding increase in discretionary benefits. there is no evidence to suggest that this would happen. but in any event, without full funding, what is the guarantee worth anyway? surely it is better that members should be able to feel the pension promise means what it says than that they should be lulled into a false sence of security by the promise of higher guaranteed benefits for which there is no adequate underpinning. there has in fact been widespread support for our general approach to a funding requirement. the central debate has focused on what full funding entails and how it can be achieved without imposing on schemes burdens disproportionate to the benefits. there are two facets of scheme solvency. one is the cash flow test: the ability of an ongoing scheme to meet its liabilities as they fall due. this is primarily an actuarial matter, but its implications for investment strategy in the case of very mature schemes are only now coming to be recognised. the liquidity of the assets must be responsive to the projected outflows. the greater proportion of pensioners to active members, the greater the degree of liquidity required. i make no apology for stating what may seem to you to be obvious, because i believe it is only recently that those accustomed to seeing the benefits of an 80 per cent investment in equities have started to become uncomfortably aware of the cash flow implications of an ageing membership. it was at one time thought that the ratio of pensioners to active members cease to increase at the point where inflows matched outflows, so that in the graphic words of joanne livingstone, "pension schemes might stay forever mature, but preserved from old age as middle-aged 'peter pans'." unhappily the trend is one of a relentless move to an ageing membership profile. we should do well to consider steps to reverse this trend by taking up the ideas so eloquently advocated by the carnegie report on life. work and livelihood in the third age. i believe strongly that we should seek to increase rather than reduce the labour force and consider a return to the days when there was no concept of automatic retirement at a given age. but all this is beyond the scope of my subject tonight. the second facet of scheme solvency is the balance sheet test: the ability of a scheme to meet its liabilities on winding up. a final salary scheme which is comfortably solvent on an ongoing basis, where no contributions are coming in, payments have to be made only when benefits fall due, and assets and liabilities are valued on the footing of long-term actuarial, assumptions, might well be unable to ensure the discharge of its liabilities if it were to be immediately wound up. why should this be so? the reason is that when a final salary scheme is wound 18 occupational pensions: securing the pension promise up two things happen. first, it becomes necessary to provide for liabilities to existing and future pensioners, and this can be done only by the purchase of annuities and deferred annuities from life offices or (if they were available) long-term fixed-interest or index-linked securities. accordingly the efect of winding up is to convert a revenue liability spread over a long period into an immediate capital, or buy-out, liability. it is this acceleration of future liabilities that lies at the heart of the problem. the securities market has never provided sufficiently long-term securities for pension funds and there is no longer an insurance market for large-scale annuities and deferred annuities at an acceptable price or, indeed, at all. secondly, assets to meet the capital liability have to be immediately available. this means that long-term actuarial values, which can be computed without reference to short-term fluctuations in the market, are replaced by market values, and if the time of winding up coincides with a severe fall in the market the solvency of the scheme may be impaired. how, then, is this problem to be dealt with? one approach, advocated by some, is to abandon the notion of funding for discontinuance liabilities altogether and simply require schemes to be solvent on an ongoing basis. most schemes are intended to continue as ongoing schemes, so why require them to be funded as if they were to be wound up? though this approach seems to have found favour with the select committee, it is not easy to perceive the logic of a solvency standard which works only on the hypothesis that the very situation for which it is designed will never actually happen! another solution, the establishment of a central discontinuance fund [c.d.f.] , is the brainchild of watsons and the government agency. it is a form of insurance against scheme insolvency but with two significant differences. in the first place, the scheme would not pay premiums as it goes. it is only at the point when the scheme folds that the c. d. f. would enter the scene, taking over scheme liabilities for a lumpsum premium represented by the accrued value of the liabilities plus a margin to reduce the risk of the c. d. f. becoming insolvent. secondly, the c. d. f. would operate as if it were itself an ongoing defined benefit scheme and would adopt the equitybased investment strategy characteristic of ordinary schemes. this would reduce premiums compared, for example, with the cost of buying annuities and deferred annuities, and enable the accrued liabilities of the failed scheme to be valued on an ongoing basis. the c.d.f. is an imaginative way of tackling the serious problem of funding for discontinuance, to which i shall return later, but is not without its risks. the government actuary was, indeed, good enough to tabulate for us what he engagingly described as the probability of ruin! for the reasons set out in our report we concluded that there were too many imponderables for it to be endorsed without a good deal of further work, so i shall say nothing further about it tonight. the solution advocated by my committee was to require the purchase of annuities for pensioners in recognition of the fact that the liabilities to them were immediate but to provide deferred pensioners (including the members who were active members prior to wind-up) with a transfer value equal to the cash equivalent of their accrued 19 the denning law journal rights as increased by limited price indexation, but excluding discretionary benefits. the provision of cash equivalents admittedly changes the nature of the benefit from final salary to money purchase, but this is inescapable and is no different from what we have now. schemes that in fact fund for discretionary benefits and salary increases above rpi (retail prices index) (as many do) would have a cushion. moreover, for schemes not predominantly consisting of pensioners the conventional gilts yield assumption could properly be modified to take account of the service profile of members and allow some movement towards equities, and thus the investment strategy of an ongoing fund. this would bring down the transfer price. these were the broad lines of approach adopted by the committee. our restricted timetable did not allow us to get into detail, and we recognised that some fine tuning might be necessary. the actuaries then got to work and it soon became clear that whilst they were in broad agreement with our approach, both as to the need for full funding and as to the impracticability of requiring full buy-out with annuity policies, there was a division of opinion among them as to the likely effect of adopting our proposals as they stood. some considered that this could force schemes either to create mismatching reserves or to shift their investment policy away from equities, with a consequent reduction in long-term returns. others felt that our proposed minimum solvency standard would not create any difficulty, and that such problems as might arise were there already, typically because of a mismatch of assets and liabilities in very mature schemes. the conclusions of the actuarial profession as reflected in their responses to the d.s.s. 's consultation paper are that the committee's approach should work quite satisfactorily if modified in the following respects: (a) instead of adopting a solvency measure based on buying from life offices annuities for pensioners, schemes should value liabilities to pensioners on the basis of the cost of buying best-matched investments. this was seen as a cheaper route, since it avoids the margins built in by insurance companies for expenses, profit and stringent solvency requirements. (b) cash equivalents should be computed in such a way as to reflect the profile of scheme membership, so that for an immature scheme it could be hypothesised that the yield would be largely equity-based, whilst for a very mature scheme a fixed-interest or interest-linked yield would be assumed, as now. (c) for large schemes, which could find the cost of immediate buy-out of pensioners unacceptable, solvency should be determined on the basis that in the event of discontinuance the scheme would be run off as a closed (or perhaps more accurately a frozen) scheme, with an eventual buy-out of residual benefits. this would allow the use of scheme mortality rates instead of the rather lower rates that are normally adopted by life offices. following this response by the institute of actuaries and faculty of actuaries, the department commissioned research from the government actuary's department, 20 occupational pensions: securing the pension promise which studied over 200 scheme valuation reports and concluded that 95 per cent would immediately meet the 100 per cent solvency requirements calculated on this modified basis. similar results were obtained from a survey conducted by bacon and woodrow, which showed that most of the residual shortfall cases were executive schemes for the benefit of restricted groups of members. there seems much to be said for this approach, which adopts a full funding standard, as we recommended, while hypothesising a lower cost for liabilities to pensioners and, in the case of large schemes, a run-off of other liabilities in a closed fund in lieu of an immediate buy-out. final judgement will have to be postponed until the government has crystallised its proposals. i would, however, utter one word of caution. if solvency of an ongoing scheme is to be measured on the basis of a run-off of liabilities in a closed fund, one has to be sure that this is the form of discontinuance that will actually be adopted, and that the scheme will not be immediately wound up, thus entirely vitiating the assumptions predicted on its being run off in a closed fund. iii the treatment of deficiencies it is necessary to distinguish an ongoing scheme from one that has actually been discontinued. in the case of an ongoing scheme funding for discontinuance is on the basis of hypotheses which may never be put to the test or, if put to the test, may not be fully borne out. once a scheme has discontinued the adequacy of its assets can then be established as fact. in addition, there is the question of priorities where there is a shortfall, a problem that does not confront an ongoing scheme. deficiency in an ongoing fund under our proposals, if a scheme at any time fell short of 100 per cent funding the trustees would have to submit a business plan showing how full funding would be restored within three years. but if the solvency level fell below 90 per cent steps would have to be taken to make good the shortfall within three months or such longer period as might be allowed by the pension.s regulator, the supervisory authority we have proposed should be established. there is widespread recognition of the need for a mechanism to enforce the solvency standard. the major argument concerns the treatment of schemes falling below the 90 per cent base level. in particular it is said that: (a) the time allowed is too short; (b) the employer may inject a substantial cash sum to cover what turns out to be .a purely temporary dip in the market and will not be able to recover the over-funding; (c) there are alternatives to a cash injection, such as the provision ofa bank guarantee or other security. 21 the denning law journal there is some force in these arguments. i remain of the view that a drop below the 90 per cent base level is potentially serious and must be dealt with much more quickly than a shortfall in the 90-100 per cent band, though it could be longer than three months. the problem of a cash injection that turns out to be excessive could be dealt with either by the provision of security or by allowing the employer, with the consent of the regulator, to recover any payment that turned out to be excessive to requirements. deficiency on a discontinuance the treatment of a deficiency where there is an actual discontinuance is in some ways simpler because it crystallises the position and to a considerable degree substitutes the known for the unknown. as now, the employer's liability to make good the deficiency then comes into operation. if the employer is insolvent it is then a question whether to apply the scheme priority rules or to substitute statutory rules of priority. it is, of course, a necessary concomitant of funding for discontinuance on the basis of cash equivalents that in the event of a deficiency the liability of the trustees becomes converted from the provision of a pension to the payment of the requisite transfer values. but it is not clear to me why this change should in itself affect the continued application of the priority rules laid down by the scheme. iv pathological events i turn now to what i have described as pathological loss-causing events: non-payment of contributions, excessive self-investment, inappropriate withdrawal of' 'surplus" , and misappropriation of assets. the first three of these can be dealt with quite shortly. non-payment of contributions we had a significant volume of evidence to show that there was inadequate monitoring of payment of contributions, even in the case of insured schemes. we were told of one case in which no employer's or employees' contributions had been paid to the pension fund during the 29 months prior to the employer's insolvency! we have made various recommendations designed to deal with this, including a requirement for the trustees to agree a schedule of due dates of payment with the employer. excessive self-investment at the time of the events arising in the maxwell case there were no legal restrictions on the investment of pension funds in the sponsoring employer. self-investment of this kind reverses the segregation effect of the trust by putting trust funds straight back into the employer's enterprise. subsequently rules were introduced to limit selfinvestment to 5 per cent of a scheme's total resources. unfortunately there are no sanctions for infringement. we have recommended a tightening of the rules in various respects, coupled with penalties for breach. 22 occupational pensions: securing the pension promise inappropriate withdrawal of "surplus" there are several problems with so-called surpluses in an ongoing fund. first, any withdrawal of surplus funds by the employer reduces the security for benefit entitlements. secondly, surplus is all too prone to evaporate, through a sustained fall in the market or an adverse change in the tax regime. thirdly, the very existence of surplus may be open to question, since a relatively modest reduction in the assumed interest rate may substantially reduce the value of the assets. in the lrt case, for example, it was calculated that a reduction of a half per cent in the assumed rate of future dividend growth would bring down the value of the fund by £167 mil ion and the past service surplus from £460 million to £293 million, a reduction of over 35 per cent. accordingly we have recommended further restrictions, including a requirement of consent of the pensions regulator, who we have proposed should be appointed to oversee occupational pensions. misappropriation of assets the really serious pathological event is the misappropriation of scheme assets by trustees or fund managers. the maxwell case is in a class of its own for the sheer scale and variety of methods used to remove pension fund assets from the control of the trustees. securities were sold by fund managers but the proceeds, instead of being paid to them, were transferred to maxwell's private companies. funds were improperly withdrawn and used in unsuccessful attempts to support the share price of maxwell's public companies in order to maintain the value of shares pledged to banks as collateral. pension fund securities were charged to banks as security for loans to the private companies. stock was lent to the private companies without collateral and the stock loan was never repaid. in the macmillan case, as mr. justice millett held, the bizarre situation arose in which a merchant bank with whom shares had been deposited thought they were taking them as security for the loan of treasury bills whereas the chief administrator of the group's pension schemes was under the impression that the bank was borrowing the shares, so that in respect of the same series of transactions each party thought that it was the lender and the other the borrower! all in all, the pension funds lost assets to the tune of some £450 million, though quite a lot of that has since been recovered by litigation, arbitration or voluntary compromise. how could all this happen? first, maxwell himself possessed an overpowering personality in which utter ruthlessness was combined with an irresistible charm. secondly, he had managed to put himself in control of all relevant parties. he was the chairman and controller of the two public companies whose pension funds were raided; he was the chairman of the trustee board; he was the chairman and controller of the in-house fund managers managing a substantial part of the funds; he was also chairman and controller of one of the'principal external fund managers; and he controlled the private companies to which the assets were diverted. in fact, he was well placed to sign documents on behalf of every party to a transaction! thirdly, for psychological reasons it is in many ways much easier to get away with a large 23 the denning law journal swindle than a small one. ask your bank manager for a loan of £5 and you'll be thrown out on your ear! ask for £5 million and you'll be given it without question unless, of course, you bank with the royal bank of scotland! the hardship and distress caused to the maxwell pensioners led to strong criticisms of the present law, many of which, in my view, betrayed a misunderstanding both of the role of the law and the content of the legal rules. it was said, for example, that trust law, which is the foundation of pension schemes, was mediaeval and therefore inadequate, and that it had demonstrably failed in its purpose. that trust law is mediaeval is undoubtedly true. that it is therefore inadequate seems to me a fairly massive non sequitur. it is worth remembering that at the end of the first world war we hanged roger casement for treason under the treason act 1351, which was certainly mediaeval but undoubtedly effective! moreover, trust law cannot prevent breaches of trust any more than criminal law can prevent crime. at best it is a deterrent. there were, however, other more cogent proposals put to us which i will briefly describe. one was that pension fund securities should be designated with the name of the pension fund or its trustees. designation is in fact quite widely used, but would create significant problems in managing pooled funds. moreover, the protection given by designation is legally much more limited than its proponents suppose. the primary utility of designation is in facilitating an audit trail and in preventing the same batch of security certificates being produced over and over again to different auditors. but it is also commonly supposed that if the name of the pension fund is shown on securities certificates third parties buying the securities will be fixed with notice of the title of the pension fund and will therefore be subordinate to the rights of scheme members. this supposition is based on a misconception of the law. specifically it fails to take account of the distinction between a passive, or bare, trust, under which the function of the trustee is purely to hold the legal title without any powers of management, and an active trust, under which the trustees are given full powers to manage and deal in the trust assets. this distinction between the bare trust and the active trust, which our textbooks tend to treat as of little importance, is in fact fundamental to our problem. the reason is that a bare trustee cannot pass a good title to a third party who takes with notice of the trust, whereas in the case of a trustee who has management powers the third party who acquires the trust asset in good faith and for value takes free from the rights of the trust beneficiaries unless he knows not only that the assets are trust assets but that the disposition of them is in breach of trust. the same applies to disposals of securities by a fund manager acting whithin its actual or apparent authority. the separate proposal that all pension fund securities should be held by an independent custodian meets much the same difficulty. pension fund securities are not locked up in a box pending pay-out of benefits. they are constantly being sold and bought. for that purpose the trustees must either do it themselves or authorise someone else, such as fund managers, to do it for them. either way, a custodian given an instruction to release securities for disposal has little choice but to obey the instruction if it is given by a person acting within the scope of his actual or apparent 24 occupational pensions: securing the pension promise authority. a custodian cannot investigate the propriety of every transaction; the delay and expense would be substantial and, indeed, the delay alone could result in substantial loss. so while custodianship, like designation, is useful and widely used, its protective effect should not be exaggerated. we concluded that neither designation nor independent custodianship, however desirable, should be made compulsory. we did, however, recommend a general tightening up of the monitoring of scheme assets by their auditors and actuaries. we also felt that whilst the moral hazard problem made it inappropriate to provide a compensation scheme against market risk, members of a pension scheme, whether final salary or money purchase, could not reasonably be expected to bear more than a small portion of the risk of loss through fraud, theft or other misappropriation. hence our recommendation for a statutory compensation scheme, to be administered by a pensions compensation board, providing for compensation of defrauded schemes up to 90 per cent of the misappropriated assets or 90 per cent of the scheme deficit, whichever was the lower. this would be financed by a post -event levy on all schemes, and there would be power to advance funds prior to, or even without, a finding of fraud in civil or criminal proceedings if the board considered there was strong evidence that this had occurred. i was asked by the house of commons select committee on social security whether, if all our recommendations were to be placed, i could guarantee that there would never be a repetition of the maxwell situation. i replied that if! were to answer yes to that question my credibility would be destroyed forever! the fact is that no amount of rule-making can prevent fraud. all one can do is to make it more difficult and more detectable at an earlier stage, so that losses can be kept down. i believe that the combination of our funding requirements, the supervisory and intervention powers of the regulator, and the enhanced monitoring roles of the scheme auditor and the scheme actuary, will make substantial frauds less likely, and that where they do occur the compensation scheme will largely remove the risk of hardship and distress of the kind suffered by the maxwell pensioners among others. the measures we have proposed to provide safeguards against normal risks and pathological events do not represent a perfect situation, but they do in my view go a very long way to achieving one of our central objectives, security for the pension promise. 25 shall the american dream suffer death? james oury * introduction "shall suffer death" alan jeffrey bannister, missouri capital punishment inmate number 24, has heard those words read to him on eight separate occasions throughout his nearly fifteen years of incarceration facing a sentence of death. at the time of writing an introduction to this article i sit in a downtown bar in washington d.c. whilst my client sits facing his eighth warrant of execution. alan, or "aj" as he has become known, has less than ten days before his execution, scheduled to take place by lethal injection within the confines of potosi correctional facility at 12:01 am on wednesday, 22nd. october, 1997. it seems to add to the perversity of alan's circumstances that the warrant of execution referred to him as "al~." i appeared today in oral argument, opposed by representatives of the united states and missouri attorney general departments, before the inter-american commission on human rights alleging violations of mr.bannister's rights as enshrined within the american declaration of the rights and duties of man and seeking precautionary relief in the form of: (1) the united states to so act as to stay the execution of mr. a.j. bannister, pending a full review of his claims by the commission; (2) that the united states ensure that the sentence of death be not carried out in relation to mr. a.j. bannister for humanitarian reasons and to avoid irreparable damage to him; and • solcitor, criminal law, partner, oury colhoun & co. representative of the u.s. capital litigation project. 19 denning law journal (3) that these measures are to be without prejudice to the processing of the complaint. those "rights" include his inherent right to life, (article i), his right to a fair trial, (article xviii), his right not to receive cruel, infamous or unusual punishment (article xxvi) and his right to due process of law, (article xxvi). ultimately, the decision as to whether mr. bannister lives or dies is highly likely to rest in the hands of the governor of missouri the honorable mel carnahan who is vested with a statutory power to exercise executive clemency (or mercy) by commuting mr. bannister's capital sentence to that oflife without the possibility of parole. current circumstances have prevented me from adapting to "article form" the following text which is an amicus curiae brief i prepared and, having obtained leave, filed in the united states eighth circuit court of appeals in october of last year. for this lack of adaption i can only apologise. the brief was referred to by the three federal judges who adjudicated upon mr. bannister's constitutional claims in november but for procedural reasons only mr. bannister was denied relief and the merits of his constitutional claims were never adjudged. dissenting, this absence of consideration was highlighted by senior circuit judge bright, who declared: "several of bannister's allegations go to the heart of our perceptions of fundamental fairness in the criminal justice system: the right to be free from governmental interrogation after receiving appointed counsel, michigan v. jackson, 475 u.s. 625 (1986), the right to a competent attorney during trial, strickland v. washington, 466 u.s. 214 (1988); powell v. alabama, 287 u.s. 45 (1932); and the right to a competent attorney during sentencing, mempa v. rhay, 389 u.s. 128 (1967); townsendv. burke, 334 u.s. 736 (1948). as discussed in the majority's opinion, procedural barriers prevent this court from addressing several of bannister's claims. these roadblocks, i emphasize, are procedural and in no way reflect on the merits of bannister's claims. if these issues remain unaddressed, missouri may execute a man without offering him a fair trial or competent legal representation. because this court cannot address those issues on their merits, we must rely on other authorities--either the united states supreme court or, if not, the governor of missouri--to review the record and address 20 shall the american dream suffer death bannister's contentions." the brief set out below is written accepting the legitimacy of the reservations expressed by the united states senate having regard to the ratification of the futemational covenant on civil and political rights [i.c.c.p.r.] although material authority exists for the proposition that these reservations are ineffective having regard to the position on derogation expressed in article 4 (2) of the i.c.c.p.r. international obligations on 8th. september, 1992, the united states of america, subject to reservations expressed by the united states senate, ratified the i.c.c.p.r. article 7 of the lc.c.p.r. states that "[n]o one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment." the reservation expressed by the united states in specific regard to article 7 declared that: "[t]he united states considers itself bound by article 7 to the extent that "cruel inhuman or degrading treatment or punishment" means the cruel and unusual treatment or punishment prohibited by the fifth, eighth or fourteenth amendments to the constitution of the united states"l the united nations human rights committee commented that the negative obligations on a state imposed by article 7 must be augmented by the positive requirement of article 10(1) i.c.c.p.r. which states: "[a]l1 persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity ofthe human person."2 on 20th. november, 1994, the united states, subject to a similar reservation expressed in regard to article 7 i.c.c.p.r. by the united states senate,3 ratified article 16 of the convention against torture and other cruel, inhuman, 1 senate treaty doc. 95-2, see also white v. johnson 79 f .3d 432 at 439 (5th.cir.) (1996). 2 human rights committee, general comment 7, article 7 (sixteenth session, 1982), u.n. doc. hrl\gen\rev.1 at 7 (1994), para.2. 3 senate treaty doc. 100-20. 21 denning law journal or degrading treatment or punishment ("the convention"). the convention prohibits the use of "torture or cruel, inhuman or degrading punishment or treatment." thus, the following legal analysis conducted in regard to the binding international obligations of the united states contained in article 7 and 10(1) i.c.c.p.r. and article 16 of the convention interprets those binding obligations in regard to the use of the language of "cruel and unusual punishment," as contained in the eighth amendment of the constitution of the united states. the eighth amendment origin-permissibility of delay by the framers capital punishment "[i]n gregg v. georgia, 428 u.s. 153 (1976), this court held that the eighth amendment does not prohibit capital punishment. our decision rested in large part on the grounds that (1) the death penalty was considered permissible by the framers."4 section 10 bill of rights 1689 '''there is no doubt' that section i 0 of the english bill of rights of 1689 'is the antecedent' of the cruel and unusual punishment clause of our eighth amendment."5 "as we have previously recognised, that section is undoubtedly the precursor of our own eighth amendment.'>6 "there is now little room for doubt that the eighth amendment's ban on cruel and unusual punishment embraces, at a minimum, those modes or acts of punishment that had been considered cruel 4 lackey v. texas 115 s.ct. 1421 (1995) (justice stevens memorandum). 5 mckenzie v. day, 57 f.3d. 1461 at 1487 n.18 (9th.cir.1995) (william a. norris dissenting) citing harmelin v. michigan, 111 s.ct. 2680 at 2686 (1981) (justice scalia concurring). 6 lackey v. texas, supra.n.4 at 1422. 22 shall the american dream suffer death and unusual at the time that the bill of rights was adopted."? "there is a formidable case for suggesting that execution after inordinate delay would have infringed the prohibition against cruel and unusual punishment to be found in section 10 of the bill of rights of 1689 ....."8 in pratt & morgan v. attorney general of jamaica, a period of five years was held to amount to "inordinate delay," as lord griffiths concluded: "i~ any case in which execution is to take place more than five years after sentence there will be strong grounds for believing that the delay is such as to constitute inhuman or degrading punishment or other treatment.'>') in ricardo farrington v. the minister of public safety and immigration and others, as the bahamas, as is the case for the united states, had no access to the remedial forum of the united nations human rights committee, as distinct from jamaica, the five year period was reduced to three and a half years. the privy council concluded: "it is the lapse of the whole period which is relevant to the question whether there has been inordinate delay. this is because the agony of mind is the same, whatever the cause of the delay .... the lapse of an overall period of time of 3y2 years following sentence of death is indeed an inordinate time."10 "closely related to the basic question" as to whether the delay in carrying out 7 fordv. wainwright, 106 s.ct. 2595 at 2599 (1986). g riley v. attorney general of jamaica, [1983] 3 all e.r. 469 (p.e.) (lord scarman, dissenting, joined by lord brightman), majority opinion overruled by pratt & morgan v. attorney general of jamaica, [1993] 4 all e.r. 769 (p.c.) (en banc). "american courts have long been guided by the decisions of the privy council." mckenzie v. day supra. n.s & see infra.n.74. 9 ibid. at 788j-789a. 10 [1996] 3 w.l.r. 1079 (p.c.) per lord goff of chieveley. 23 denning law journal a death sentence violates the eighth amendment "is a question concerning the portion ofthe ...delay that should be considered in the analysis ...[i]t may be appropriate to distinguish, for example, among delays resulting from (a) a petitioner's abuse of the judicial system by escape or repetitive, frivolous filings; (b) a petitioner's legitimate exercise of his right to review; and (c) negligence or deliberate action by the state."11 "the fact that the delay may be due to the defendant's insistence on exercising his appellate rights does not mitigate the severity of the impact on the condemned individual, and the right to pursue due process of law must not be set off against the right to be free from inhuman treatment."12 the "delay resulting from meritorious challenges" initiated by "capital prisoners .....certainly cannot be held against them." 13"[t]he relevant inquiry is not who is to blame for the delay, but whether the petitioner's claims were "a legitimate exercise of [his] right to review."14 in this case "[t]he state does not contend that the delay in 'the appellant's case' is even remotely attributable to petitioner's 'repetitive, frivolous,' or othelwise illegitimate filings, [nor would such a contention be supported by the record]."ls the appellant has been imprisoned on death row for in excess of thirteen and a half years, such a period reflecting the exercise of his legitimate right to review. further, the delay arising from such exercise ofthe appellant's legitimate right to review should not be disregarded: 16 11 lackey v. texas, supra.n.4 at 1422, citing pratt & morgan v. attorney general of jamaica, supra.n.8 at 786. 12 district attorney/or the suffolkdistrictv. watson 411 n.e. 2d. 1274 at 1283, n.7 (sup. ct. mass.) (1980). 13 arizona v. richmond 886 p.2d 1329 at 1332 (sup. ct. ariz.) (1994). 14 mckenzie v. day supra.n.5 at 1485. 15 ibid 16 "it seems to me highly artificial and unrealistic to discount the mental agony and torment experienced on death row on the basis that by not making the maximum use of the judicial process available the condemned prisoner would have shortened and not lengthened his suffering. the situation could be otherwise if he had resorted to a series of untenable and 24 shall the american dream suffer death "it was part of the human condition that a condemned man would take every opportunity to save his life through use of appellate procedure. if it enabled the prisoner to prolong the appellate hearings over a period of years, the fault was to be attributed to the appellate system that permitted such delay and not to the prisoner who took advantage of it."i? to proceed with the execution of mr. bannister after what amounts to an "inordinate delay," after in excess of thirteen and a half years, would be contrary to section 10 of the english bill of rights 1689. 18 afortiori, to proceed with mr. bannister's execution would amount to a "mode" or "act" of "punishment," which is, at a minimum, (emphasis added), protected by the eighth amendment. 19 framers of the constitution "a delay such as in this case, if it ever occurred, certainly would have been rare in 1789, and thus the practice of the framers would not justify a denial of the petitioner's claim."20 "over a century ago this court recognised that "when a prisoner sentenced by a court to death is confined in the penitentiary vexatious proceedings which, in consequence, had the effect of delaying the ends of justice." in catholic commissionfor justice and peace in zimbabwe v. attorney general (1993) 14 h.r.l.j 323 (cubbay c.l.) (24th.june, i 993), soering v. uk. ii e.h.r.r. 439 (1989), "we think that the case of the delay is immaterial when the sentence is death. be the cause of the delay, the time necessary for the appeal and consideration of reprieve or some other cause for which the accused himself may be responsible, it would not alterthe dehumanising character of the delay." see also, vatheeswaran v. state of tamil nadu (1983) 2 s.c.r. 348 at 353 per chinnappa reddy 1. (1983), approved in sher singh v. state of punjab (1983) 2 s.c.r. 582 and smt. treveniben v. state ofgujarat (1989) i s.c.j. 383 (supreme court ofindia). 17 pratt & morgan v. attorney general of jamaica, supra.n.8 at 786. 18 riley v. attorney general of jamaica, supra.n.8. 19 rordv. wainwright supra.n.7. 20 lackeyv. texas, supra.n.4 at 1421. 25 denning law journal awaiting the execution of the sentence one of the most horrible feelings to which he can be subjected during that time is the uncertainty during the whole of it." 21 "if the court accurately described the effect of uncertainty in medley, which involved a period ohour weeks ....that description should apply with even greater force in the case of delays that last for many years."22 "there are powerful reasons for concluding capital cases as promptly as possible ....[f]rom the standpoint of the defendant, the delay can become so excessive as to constitute cruel and unusual punishment prohibited by the eighth amendment." 23 in lackey v. texas, the petitioner had spent approximately seventeen years facing a sentence of death. justice stevens noted that the first ground cited in gregg v. georgia, 24did not retain "any force." 25 to proceed with mr. bannister's execution after a period of in excess of thirteen and a half years facing a sentence of death would have been interpreted as "cruel and unusual punishment," in contravention of the eighth amendment. social purposes death penalty retribution and deterrence in addition to the ground cited above, in holding that capital punishment was not prohibited by the eighth amendment in gregg v. georgia, 26the decision 21 in re medley 134 u.s. 160 at 172 (1890). 22 supra. n.4 at 1421. see also the extensive list of authorities cited by justice stevens at 1422. 23 gomez & calderon v. fierro & ruiz 117 s.ct.285 (1996) (justice stevens and justice breyer dissenting). 24428 u.s. 153 (1976). 2s supra. n.4 at ]421. 26 supra. n.24. 26 shall the american dream suffer death also rested on the grounds that "the death penalty might serve two principal social purposes: retribution and deterrence."27 retribution "the prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of sentence and the actual infliction of death."28 death sentences, "will be carried out only after agonizing months and years of uncertainty" 29"[t]he interval between sentencing and execution .....the imprisonment during that period is nevertheless a significant form of punishment. "30 "there can be little doubt that delay in the enforcement of capital punishment frustrates the purpose of retribution."31 "it becomes clear that... presents a strong case. the years ... has spent on death row appear to be unprecedented. this delay, coupled with the allegedly harsh and punitive confinement conditions on death row arguably satisfies the state's interest in exacting retribution."32 mr bannister has faced a sentence of death for in excess of thirteen and a half years. "his thoughts about death must necessarily be focused more precisely than other people's. he must wait for a specific death, not merely expect death 27 lackey v. texas supra. n.4 at 1421. 28 furman v, georgia, 408 u.s, 238 at 288-289 (1972) (justice brennan concurring). 29 district attorney for suffolk district v. watson, supra.n, 12 at 1287, 30 coleman v, balcom 4s1 u.s. 949 (1981) (justice stevens) (majority opinion), 31 ibid (justice rehnquist dissenting). 32 mckenzie v. day, supra.n.s at 1486, 27 denning law journal in the abstract."33 "[w]hat man experiences at such times is beyond all morality ....[h]aving to face an inevitable death, any man, whatever his convictions, is tom asunder from head to toe. the feeling of powerlessness and solitude of the condemned man, bound up and against the public coalition that demands his death, is in itself an unimaginable punishment." 34"[i]n death row, organised and controlled in grim caricature of a laboratory, the condemned prisoner's personality is subjected to incredible stress for prolonged periods of time." 35as mr. bannister remarks: "how will 1 say goodbye to my wife, my mother, brothers and sisters, nieces and nephews? how will 1 act at the moment in time when they come over there, 1 would already have been in the holding cell in the hospital? how am 1 going to react? are they going to lift me up onto the gurney or are they going to have the nerve to ask me to hop up there for them ?"36 ultimately mr. bannister has, for in excess of thirteen and a half years, faced the prospect of his own death, the "king of all terrors," 37knowing "that the state is very serious about carrying out executions." 38 indeed, mr. bannister's ongoing agonizing experience can only have been augmented by his direct knowledge whilst housed on deadi row of die executions of 22 fellow inmates, 33 see j.p. sartre, being and nothingm;ss (ed.barnes) (1969) at 685-687. 34 acamus, reflections on the guillotine, in resistance, rebellion, and death, (1960) at 155-156. 3s west, "psychiatric reflections on the death penalty," in voices against death (ed.p .mackey) (1976) at 290-291. see also robert johnson & john l. carroll, "litigating death row conditions: the casefor reform," in prisoners & the law (ed.i. robbins)(1988) [quoting robert johnson, "under sentence of death: the psychology of death row confinement," 5 l. & psycho!. rev. 141 (1979)]. 36 raising hell, (worldview pictures)(1994). 37 job 18:14. 38 stephen trombley, the execution protocol, (crown publishers inc., new york, 1992) appellant's comment at 190. 28 shall the american dream suffer death from 6th. january, 1989 to date, including the first execution by lethal injection of mr. bannister's friend and next door neighbour, george c. mercer, on 6th. january, 1989. 21st. february, 1985: an execution date having been scheduled for 21st. february, 1985, mr. bannister received a stay of execution on 15th. february, 1985. mr. bannister in describing events in 1985 states: "i think that's the worst part of the execution, the years and years prior to it, leading up.>l39 30th. july, 1987: an execution date having been scheduled for 30th. july, 1987, mr. bannister received a stay of execution on 23rd. july, 1987. 3rd. november, 1988: an execution date having been scheduled for 3rd. november, 1988, mr. bannister received a stay of execution on 28th. october, 1988. 7th. december, 1994: a further execution date having been scheduled for 7th. december, 1994, mr. bannister received a stay of execution at 9:49 pm by the united states supreme court in a vote of six to three. mr bannister was made aware of this final hour stay at 10:15 pm.40 mr. bannister provides a detailed personal account of events and emotions preceding this execution date and states: "my trip to the edge was set in motion on october 31, 1994,"41 "assistant superintendent roper and major harris ...hand delivered the execution warrant to me." 42on 28th. november, 1994 mr. bannister was called to the office of warden delo and, "he basically explained the procedure to me, including the fact that one of the shots on the eve of the execution was not optional, he told me it was a antihistamine and that was ...to relax the lungs so that the second drug would not...there would be no adverse reaction. he also told me that they were treating this as a serious 39 ibid. at 235. 40 a.j. bannister, ..... shall suffer death, (audenreed press, maine, 1996) at 69. 41 ibid. at 69. 42 supra.n.36. 29 denning law journal exercise, almost jokingly asked me if i had made any funeral arrangements and asked me to get the telephone number of the mortuary where my mother lives, he explained the local mortuary would do the embalming."43 on the evening of 2nd. december, 1994 mr. bannister was taken to the holding cell within the hospital complex to await his execution. in the early morning of 6th. december, 1994 mr. bannister's mother, alice, visited her son for the last time: "her eyes were bloodshot, her voice was cracking and i just told her that she had been a great mother. ... the guard did allow me to lean over and we kissed through the chuckhole ..... when they took her outside the room i had to look at her until the door closed, i listened to her footsteps going down the hallway for as long as i could ....."44 on 6th. december, 1994 mr. bannister's wife, lindsay, visited her husband for the last time: "she held up fairly well but i could see her eyes were red ....bloodshot and she hadn't slept in days and there were a number of times i had to stick my fingers through the bar and she clinched my fingers on the outside and she would tell me that she loved me.,,45 on the eve of the execution, inter alia, mr. bannister was provided with his last meal (4.30pm), he was read the "notice of intent," which concludes, "[i]t is the department of corrections intent to put you to death on december 7, 1994 at 12:01 pm, or at any time on december 7th."(7.00 pm), mr. bannister was introduced to the male nurse who would be responsible for fitting the lv. (7.00 pm), administered the antihistamine injection (7: 15 pm), attended by a nurse to check his temperature, blood pressure and available veins in the left elbow joint area (8.30 pm) and advised by warden delo that "the body" would be moved to gunn & sons funeral home and held there for 24 hours at which time if nobody 43 ibid. 44 ibid 45 ibid. 30 shall the american dream suffer death had claimed the body, mr. bannister would be given a pauper's burial (9.00pm).46 as mr. bannister concludes: "[ilt's something i wouldn't wish upon anyone. i felt they walked me thorough hell and tried to push me along as much as they could.,,47 the numerous instances of mr. bannister's suffering have deeply affected many other individuals involved in his day to day life. "the waiting is very hard on his family but i know it is much harder on him."(alice bannister)48 "what am 1going to say to him? how can 1tell him everything 1 have always told him before but for the last time?"(lindsay bannister)49 "i think she is going to take it real real hard. she has tried everything under her power to help him and it don't seem to have done any good. i think she will come close to a nervous breakdown. she thinks she will have failed all along the line."(bob bannister, mr. bannister's father) 50 "for his nieces and nephews they're not going to understand why you know .....ofwhy somebody is being killed for apparently no reason to them."(sheila bannister, mr. bannister's sister-in-law)51 in addition to this catalogue of suffering mr. bannister has endured, whilst housed in the basement of missouri state penitentiary, for in excess of six years, cruel and inhuman prison living conditions. a complaint was filed on 46 supra.n.4g at 66-69. 47 supra. n.36. 48 ibid. 49 ibid. so ibid. 51 ibid. 31 denning law journal 19th. august, 1985 in the united states district court western district of missouri seeking declaratory and injunctive relief from the intolerable and unlawful conditions prevailing for inmates facing a sentence of death, housed in the basement of missouri state penitentiary [m.s.p.] 52the appellant was one of the original five plaintiffs in this action. on 15th. january, 1986 the court (the honorable scott o.wright) granted the plaintiffs' motion for class action status and the certified class included all existing and future inmates confined under sentence of death at the m.s.p. the complaint alleged that the plaintiff class was "confined under conditions which [were] unconscionably oppressive and degrading and which violate[d] plaintiffs basic constitutional rights." it detailed 52 separate facts specific to death row at m.s.p., being inter alia: cell confinement for an average of 23 ~ hours per day; 2~ hours of outdoor recreation per week; 3, often cancelled, showers per week, lasting 10-15 minutes each; no day rooms or common areas; available cell area of 20 square feet; extremely limited natural light due to paint and frosting on windows; overflowing of sinks and toilets into cells; unsanitary drinking water; inadequate ventilation; noxious air; poor bulb lighting in cells; extremely high noise levels; roach and fly infected cells; mattresses were never cleaned and blankets were cleaned once a year; squalid seclusion cells; cold and unsanitary food; denial of food for 17~ hours per day; no group religious services; no access to law library and limited access in cells to legal materials; inadequate medical, dental, psychiatric and counselling care; limited access to telephone; tampering with legal and other mail and inadequate fire safety.53 the plaintiffs alleged in the complaint that they, as inmates confined under a sentence of death, had suffered and were suffering violations of their rights under the first, sixth, eighth and fourteenth amendments to the constitution of the united states. as the complaint details: "[c]onfinement of plaintiffs for periods of many years under the conditions alleged herein is dehumanising and damaging to plaintiffs' physical and psychological health and safety." 52 case no. 85-4422-cv-c-5. 53 supra.n.38 at 121 & 0.40 at 46. 32 shall the american dream suffer death the complaint resulted in a settlement embodied in a consent decree ("the decree") in 1986. the decree, although not representing findings of fact or conclusions of law, indirectly affirmed the legitimacy of the plaintiff s allegations in detailing remedial steps to be taken "with the utmost speed," in regard to, inter alia: medical services; mental health care; recreation; telephone access; facilities for indoor recreation; plumbing; renovation works; food service ramp; fire safety; visiting; education; lighting; sanitation; window screening; feeding; legal mail and materials; classification and additional staffing. the decree was "a plan for ensuring that the capital punishment unit complies with constitutional requirements."54 although various steps were taken by the prison authorities to effect the contents of the decree a dispute arose between the parties over certain aspects of the implementation of the decree. this dispute ultimately led to the appointment of a special probation office on 15th. october, 1987. it is submitted that it was not until the moving of mr. bannister to potosi correctional facility in early may, 1989 that such constitutional requirements were fully met and thus the appellant endured inhuman and degrading prison living conditions for in excess of six years whilst facing a sentence of death. there can be no doubt that mr. bannister's lengthy incarceration facing a sentence of death amounts to "a significant form of punishment," 55which "has exacted a frightful toll," 560nmr. bannister, his wife, family and friends. the incredible stress, pain and suffering already endured by mr. bannister, his wife, family and friends as a result of a lengthy period facing a sentence of death is heightened to unimaginable levels with the inclusion of the events pertaining to the scheduled execution dates, the knowledge of 22 previously executed prison inmates and the inhuman prison living conditions mr. bannister endured for a significant portion of his incarceration on death row. in lackey v. texas, the petitioner sought to argue that his enduring of a seventeen year perioq facing a sentence of death, per se, violated the eighth 54 mcdonaldv. armantrout, 908 f. 2d 388 (8th.cir.1990). 55 coleman v. balcom supra.n.30. 56 furman v. georgia, supra.n.28. 33 denning law journal amendment's prohibition against cruel and unusual punishment, "after such an extended period of time, the acceptable state interest in retribution has arguably been satisfied by the severe punishment already inflicted." 57the "extraordinary" and "unusual" facts of the final days and final hour stays of execution in 1985, 1987, 1988 and 1994 and the inhuman prison living conditions distinguish this case from the facts in lackey v. texas, and white v. johnson. 58the combination and cumulative effect of the sufferable events mr. bannister has endured dissolves the "arguable" status referred to in lackey v. texas, and provides with no doubt that the acceptable state interest in retribution has been fully satisfied. as mr. bannister notes: "taken to the edge doesn't end there, it is an ongoing experience ....i wondered, then as i do now, ifby some cruel twist of fate, myself, my friends and my family will have to be put through this again?"59 afortiori, to proceed with mr. bannister's execution would serve no purpose in satisfying the state's interest in retribution. deterrence "[t]he deterrent value of incarceration during that period of uncertainty may well be comparable to the consequences of the ultimate step itself."60 "the deterrent value of any punishment is, of course, related to the promptness with which it is inflicted."61 "finally the additional deterrent effect from an actual execution 57 supra.na at 1421. 58 supra.n.1 at 439. 59 supra.nao at 70. 60 coleman v. balcom, supra.n.30 at 2033 (justice rehnquist dissenting). 61 ibid (justice stevens concurring). 34 shall the american dream suffer death now, on the one hand, as compared to [17] years on death row followed by the prisoner's continued incarceration for life, on the other, seems minimal." 62 "delay in the execution of judgment imposing the death penalty frustrates the public interest in deterrence and eviscerates the only rational justification for that type of punishment.'>63 mr. bannister, through his extensive participation in correspondence with individuals around the world, in books and films, 64 and as a subject of local and national television and newspaper news, has sought to educate the public of his bitter repentance and remorse for his actions and of his continued parameterless suffering whilst on death row. it is nothing less than a testament to his character that even after the final hour stay on 6th. december, 1994 he went on to write a book, published in 1996, 6swhich continued to express remorse for his acts "i was gripped by the grim realisation i'd taken a life. there is no sicker feeling than to know one's responsible for the loss of another human being's life.'>66 it is clear from the evidence that mr. bannister, after in excess of thirteen and a half years, "is no longer the same person." 67 the potential for mr. bannister to reinsert himself back into society is also corroborated by the many individuals who have been part of mr. bannister's life, from his family members, law enforcement officers, correctional officers, lawyers, and many residents within the international community. to execute mr. bannister having repented and remorsed his acts openly despite having endured such a publicized extreme catalogue of suffering for in excess of thirteen and a half 62 lackey v. texas, supra.n.4 at 1421. 63 gomez & calderon v. fierro & ruiz supra.n.23. see also supra.n.1; "years of delay between sentencing and execution .....undermines the deterrent effect of capital punishment and reduces public confidence in our criminal justice system" justice lewis powell, "commentary: capital punishment" 102 harv.l.rev. 1035 at 1035 (1989). 64 supra.n.36, n.38 & n.40. 6s supra.n.40. 66 ibid. at 35. 67 arizona v. richmond, supra.n.13 at 1336. 35 http://www.ingentaconnect.com/content/external-references?article=0017-811x()102l.1035[aid=2197977] denning law journal years would offer no value to society in deterrence terms and would amount to punishing another man. mr. bannister's execution under circumstances where neither the state's interest in retribution nor deterrence would be served would amount to a "pointless and needless extinction of life with only marginal contributions to any discemable social or public purposes. a penalty with such negligible returns to the state would be patently excessive and cruel and unusual punishment violative of the eighth amendment."68 evolving standards of decency united states authority "the clause seems to express a great deal of humanity, on which account i have no objection to it." remark of mr livermore during the discussion of the eighth amendment at the first congress.69 "[t]he basic concept underlying the [clause] stands to assure that this power be exercised within the limits of civilised standards. »70 the eighth amendment recognises the "evolving standards of decency that mark the progress of a maturing society," 71and protects "fundamental human dignity."72 "the purpose of the cruel and unusual punishment prohibition is to guarantee a measure of human dignity even to the wrongdoers in our society.'>73 68 furman v. georgia, supra.n.28 at 312 (opinion concurring in judgment). see also judge alex kozinski, "death: the ultimate run-on sentence" 46 case wres.l.rev. 1 at 1-2 (fall 1995); gomez & calderon v. fierro & ruiz, supra.n.23. 691 annals ofcong. 754 (1789), groseclose v. dutton, 609 f. supp. 1439 (1985) (dist. el. m.d. tennessee). 70 trop v. dulles, 356 u. s. 86 at 100-10 1 (1958) (plurality opinion), cited in gregg v. georgia, supra.n.24 at 269-270 (justice brennan). 71 trop v. dulles, ibid. at 101. 72 coker v. georgia, 433 u.s. 584 at 597 (1977) (plurality opinion). 73 district attorney for suffolk district v. watson, supra.n.12 at 295. 36 shall the american dream suffer death international authority14 "there is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. what gives rise to this instinctive revulsion? the answer can only be our humanity."75 in soering v. united kingdom, the united states had applied to the united kingdom to extradite the applicant to stand trial in the state of virginia on a charge of capital murder. 76the applicant alleged that extradition to face possible death row delays of six to eight years was contrary to article 3 of the european convention for the protection of human rights and fundamental freedoms which provides that no one should be subjected to torture or to inhuman or degrading treatment or punishment. the european court of human rights held that the decision to extradite the applicant to the united states would, if implemented, give rise to a breach of article 3 of the convention. the exposure to the death row phenomenon went beyond the threshold set by article 3. to proceed with the execution of mr. bannister would be nothing short of an absolute disregard for the retention of the measure of human dignity which mr. bannister, in the light of the extreme catalogue of suffering he has already endured, constitutionally deserves and which our humanity demands. international authorities jamaica in pratt & morgan v. attorney general for jamaica, the privy council unanimously held that to execute two inmates who had been on death row for fourteen years and who had been read execution warrants on three occasions would constitute "torture or.. ..inhuman or degrading punishment" in 74 in refusing to hear these claims, the court turns a deaf ear to an argument that courts in other countries have found persuasive. see, e.g., state v. makwanyane & mchunu, case no. cct/3/94 (so.afr. const.ct. 6th.june, 1995); pratt & morgan v. attorney general of jamaica supra.n.8; gomez & calderon v. fierro & ruiz, supra.n.23. 7s pratt & morgan v. attorney general of jamaica, ibid. at 783f. 76 supra.n.16. 37 denning law journal violation of section 17(1) of the jamaican constitution, a document rooted in the english common law." 77as lord griffiths declared: "the statement of these bare facts is sufficient to bring home to the mind of any person of normal sensitivity and compassion the agony of mind that these men must have suffered as they have alternated between hope and despair in the 14 years that they have been in prison facing the gallows."78 trinidad and tobago pratt & morgan v. attorney general oj jamaica, 79received unanimous approval in guerra v. baptiste and others, where the execution of the appellant after a delay of four years and ten months, during which time the appellant had been on death row, was held to be a "cruel and unusual ....punishment" contrary to section 5(2)(b) of the constitution of trinidad and tobago and their lordships "announced immediately that the appeal would be allowed and the appellant's sentence of death commuted to a sentence of life imprisonment."8o it is of importance that in guerra the petitioner was subject only to a single warrant of execution. zimbabwe in catholic commissionjorjustice & peace in zimbabwe v. attorneygeneral the supreme court of zimbabwe held that prolonged death row incarceration constituted "inhuman or degrading punishment" in violation of its constitution and thus forbade the execution of four prisoners confmed under sentence of death for between 4 1/3 to 6 years.8l india 77 mckenzie v. day, supra.n.5 at 1487. 78 pratt & morgan v. attorney general of jamaica, supra. n.8 at 772h. 79 ibid 80 [1985] 4 all e.r. 583 at 587 (p.c.). 81 supra.n.16. see also conw~o v. minister of justice (1992) (2) sa 56 at 64b (zimb. s. ct.) where the zimbabwe supreme court held, inter alia, that a lack of exercise constituted "inhuman treatment." 38 shall the american dream suffer death in vatheeswaran v. state of tamil nadu, the court held that delay exceeding two years in the execution of a sentence of death should be sufficient to entitled a person under sentence of death to demand the quashing of his sentence on the ground that it offended against article 21 of the indian constitution which provides, "[n]o person shall be deprived of his life or personal. liberty except according to procedure established by law."82 belize in logan v. r, the appellant, who had been facing a sentence of death for approximately three years, was granted a conservatory order prohibiting his execution by the privy council three days before his only scheduled execution date pending the lodging of a petition for special leave to appeal to the privy council. 83lord steyn concluded: "ultimately, their lordships have concluded that, in the light of the fact that the appellant has been under sentence of death for some three years, and very close to execution before the conservatory order was granted, such an order"[being to remit the case to the court of appeal in belize to consider whether there should be a retrial] "would be unjust. in the result their lordships will humbly advise her majesty that the conviction of murder and sentence of death should be quashed."84 the bahamas in ricardo farrington v. the minister of public safety and immigration and others,85 and dwight lamott henfield v. the attorney general of the commonwealth of the bahamas, 86each appellant had been read a single execution warrant and had spent three years and four months and six years 82 supra.n.16. see also batra v. delhi administration (1979) 1 s.c.r. 392 at 457d & 488 f -h, where the supreme court of india held that all normal prison facilities of movement, association and reading should be available for condemned prisoners. 83 [1996] 4 all e.r.190 (p.c.). 84 ibid. at 204. 85 supra. n.lo. 86 [1996] 3 w.l.r. 1079 (p.e.) (lord goff of chieveley). 39 denning law journal and six months facing a sentence of death respectively. in respect of both cases the privy council concluded, "that a period of 3'li years in prison awaiting execution, with all the agony of mind that entails, would in all the circumstances be so prolonged a time as to render execution cruel or inhuman punishment." to execute mr. bannister who has endured not only many years facing a sentence of death but has also endured inhuman prison living conditions for over six years, the issuing of seven warrants of execution on a systematic basis throughout his period of incarceration, the direct knowledge of 22 fellow inmate executions, the independent scheduled execution dates which subjected the appellant in 1985, 1987, and 1988 to fmal days stays of execution and ultimately, in 1994, to a final hour stay of execution which augmented the already heightened level of physical and emotional suffering mr. bannister had endured as the "missouri execution protocol" was progressed to its penultimate conclusion would be inherently contrary to the decisions of the privy council and many other international jurisdictions in factual comparison tenns as well as being contrary to prevailing international standards of human dignity and decency. indeed, pratt & morgan appears to be the only international authority which only factually proximates the extreme severity of such a combination of sufferable, inhuman and cruel events that mr. bannister has endured whilst facing his sentence of death for in excess of thirteen and a half years. international authority demands that the exceptional erosion of mr. bannister's dignity and humanity to date be remedied by an immediate commutation of his death sentence. to proceed with mr. bannister's execution would amount to cruel and unusual punishment as provided in the eighth amendment of the constitution of the united states. afor/iori, such a constitutional violation would amount to clear violations of article 7 and article 10(1) i.e.c.p.r. and article 16 of the convention. in these compelling and insufferable circumstances, both united states and international authority, the need to protect mr bannister's dignity and our humanity clearly demand that his sentence of death be immediately commuted, "bring[ing] to an end this unfortunate saga," 87 and that in so doing this honorable court would be treating mr. bannister as a "unique individual human being" and not as a "member of a faceless, undifferentiated mass to be 87 arizona v. richmond,supra.n.13 at 1333. 40 shall the american dream suffer death subjected to the blind infliction of the death penalty."88 conclusion as i conclude this article i am reminded ofmr bannister's often spoken words to me during the course of our many conversations that were penetrated by an automated voice announcing "this call originated from a correctional facility" "keep the faith keep the faith ...." facing his eighth execution warrant, mr. bannister had been read the warrant within yards of the execution chamber itself, introduced to the execution team, and advised of the removal of his right to contact visits with his family and legal team. mr. bannister's catalogue of suffering continued ... following over 10,000 letters of request sent to the governor urging mercy, domestic and international television and newspaper coverage and oral representations made to the governor and his legal counsels, alan was denied clemency at 4.00pm on wednesday 22nd. october, 1997 and was executed by lethal injection at l2.0lam. alan suffered many deaths whilst facing his capital sentence i hope he is finally at peace, free from physical and psychological brutality. in this instance of barbarity there is no doubt that, for me, the american dream suffered death. 88 woodson v. north carolina, 96 s.ct. 2978 at 2980 (!976) (justices stewart, powell and stevens). 41 truly a charter for mistresses mary welstead* iintroduction in the latter part of the twentieth century the term mistress has not infrequently been used to describe, in contradistinction to a kept woman, a woman who cohabits in the same household with a male partner who is unmarried or who has abandoned his de facto or de jure wife.] in davis v. johnson 2 lord kilbrandon regretted the use of the term mistress in this context. in his view the term mistress more accurately portrayed a "woman installed, in a clandestine way, by someone of substance, normally married, for his intermittent sexual enjoyment."3 lord kilbrandon doubted whether this latter category of women continued in existence in late twentieth century society. freeman and lyon have also declined to employ the word mistress to describe a female partner who lives permanently in an unmarried state with a male partner in the same household. they have suggested that the concept of a mistress is wholly sexist and that the term mistress carries connotations of an exclusively illicit and outdated sexual relationship.4 these disparaging observations pertaining to mistresses may result from an excessively rigorous conceptualization of extra-marital relationships into two distinct categories, the first consisting of cohabitants and the second consisting of kept women. whether extra-marital relationships should be granted legal protection remains somewhat controversial.5 there tends, however, to be a general acceptance that if such relationships are to be brought within the bounds • of the school of law, university of buckingham. i. see, e.g., kingdom, (1988) 15jo. of law and soc. 77; masson, [1979] conv. 184; richards,(1976)40 conv. ns 35; richards v. dove [l974j i all e.r. 888, at p.894. 2. [1979] a.c. 264. 3.ibid., at p.338. see also the judgment of lord denning mr in davis v.johnson [1979] a.c. 264, at p.270. 4. freeman and lyon, cohabitation without marriage (1983), at p.5. 5. see, e.g., freeman and lyon, (1980) 130 n.l.j. 228; deech, at p.300, in marriage andcohabirarion in contemporary societies (1980); freeman and lyon, cohabitation withour marriage (1983), at p.183 er seq.; gammans v. ekins [1950] 2 k.b. 328, at p.334; richards v. dove [1974] i all e.r. 888, at p.894; dyson holdings v. fox [1975] 3 all e.r. 1030, at p.1036; helby v. rafferty [1978] 3 all e.r. 1016, at p.1022 er seq.; warson v. lucas [1980] 3 all e.r. 647. at p.653 er seq.. 117 the denning law journal of law only the first category of relationship is worthy of protection. parker has explained that "the law is engaged in reproducing the traditional patriarchal family form by assimilating threats to the marital norm within a slightly wider definition of marriage."6 in this article the term mistress will be used to refer to the second category of women. a mistress is a woman who is kept by, or receives some financial support from, a visiting male lover. her male lover normally resides with another woman in a dejure or de facto matrimonial relationship.7 the plight of the mistress when her relationship of dependency comes to an end has, for the most part, been ignored. until the enactment of the inheritance (provision for family and dependants) act 1975 law reformers, legislators and the judiciary tended to disregard the highly vulnerable position of the mistress on the death of, or breakdown of her relationship with, her lover. their attention has, instead, been centred on the dilemmas faced by cohabitants whose relationship has ended. the mistress, no less than the cohabitant, may find herself homeless and without the financial means of maintenance. those who deplore the mistress relationship may view it as a deviation from the societal norm of monogamous perfection in that the mistress and her lover's wife co-exist in a state of quasi-polygamy which detracts from the approved matrimonial model. if this latter ideal is to be buttressed, the relationship of mistress and lover must be distinguished from defacto matrimonial relationships for the purpose of excluding it from any expanded definition of marriage. critics, therefore, have been inclined to stress the demode and tawdry nature of the mistress relationship with its overtones of commercial sexuality, and by so doing marginalize the relationship.s if a mistress is no more than one of a dying species of glorified prostitutes it becomes feasible for the critics to seek to prevent the extension to a mistress of those legal remedies offered to partners cohabiting in a quasi-matrimonial relationship. these derogatory images of the mistress are not reflected in studies relating to mistresses. the mistress is neither a member of a rare breed9 nor is she primarily a personal prostitute. rigid categorisation of extra-marital relationships is not only fallacious but may also prove to be dysfunctional in its perceived protection of the institution of marriage. empirical research in the mistress context has revealed that the label mistress is "an opaque umbrella term for a multitude of types" of kept women rather than one category. the term mistress does indeed encompass 6. cohabirees (1981), at p.222 et seq. see also freeman and lyon, supra n. 5, at p.145 et seq.; bruch, (1976) 10 fam. law q. 101; eekelaar, (1975) 38 m.l.r. 245; report of the new south wales law reform commission on de facto relationships 1983; family law act (ontario), so 1986, c. 4 ss. i, 29. 7. a mistress will not normally be cohabiting in a permanent relationship with a male parmer during the currency of her relationship with her lover. see, however, horrocks v. forray [1976] i all e.r. 737, at p.739; robinson v. cox (1741) 9 mod. 262, 88 e.r. 439. 8. see nn. 2 and 4 supra. see also salamon, the kept woman (1984), at p.l9 et seq.. 9. see, generally, salamon, supra n. 8; james and kedgley, the mistress (1973); sands, the making of the american mistress (1981). see also coleridge, (october 1987) harpers and queen, at p.216; mayle (april 1987) gentleman's quarterly, at p.50. lib truly a charter for mistresses relationships which resemble an exclusive form of prostitutionlo but it also includes stable long term visiting relationships which contain many of the incidents of marriage. a mistress engaged in this latter form of relationship may regard herself, in some sense, as the quasi-polygamous wife of her lover, performing many of the roles normally associated with a traditional wife.ii she may, for example, give birth to and care for children.12 unlike the cohabitant, neither the mistress as prostitute nor the mistress as quasi-polygamous wife have expectations that their lovers will abandon their current matrimonial relationships for their sake. 13 it is difficult not to reach the conclusion that it is not only the mistress but also the cohabitant who poses a threat to the monogamous ideal of marriage. 14 whether a dependent mistress falls into the category of quasi-polygamous wife or personal prostitute, if her relationship with her lover ends, she will face similar problems to those facing a dependent cohabitant. she has been encouraged to offer her services to a male partner in return for financial dependency. 15 ifthat financial support is withdrawn at the end of the relationship she is likely to find herself without a home and will have to seek an alternative means of earning a living. if the relationship of dependency has continued for a substantial period of time she may find herself disadvantaged as a direct result of that dependency when seeking to re-enter the labour market.16 in these circumstances, a mistress, no less than a cohabitant, requires legal solutions to the problems facing her at the end of a relationship. the focus of this article is fixed upon legal approaches to the problems faced by mistresses at the end of a relationship, and, in particular, the extent to which the inheritance act has ameliorated these problems. ii limited legal redress for mistresses statutory provision, although limited in scope, has extended some legal protection to parties engaged in extra-marital sexual relationships. with the clear 10. see, e.g. , the canadian casesofr. v. garau (1891) i c.c.c. 66; queenv. elise rehe (1898) i c.c.c. 63. see also robinson v. cox (1741) 9 mod. 262,88 e.r. 439. ii. see, e.g., malone v. harrison [1979] i w.l.r. 1353, at p.1356. 12. see, e.g., horrocksv. foray [1976] i all e.r. 737; tannerv. tanner [1975]3 all e.r. 776; coombes v. smith [1986] i w.l.r. 808. 13. see malone v. harrison [1979] i w.l.r. 1353, at p.1357. 14.the mistress relationship poses a threat in two ways. first, although the mistress has no expectation that her lover will leave his wife and marry her, his wife is less likely to tolerate the long term continuation of the mistress relationship once she becomes aware of it. sexual exclusivity remains the linchpin of traditional marriage. divorce is likely to ensue: see, generally, lawson, adultery: an analysis of love and betrayal (1988). secondly, the mistress relationship in most circumstances will have disastrous economic consequences for a marriage: see, e.g., horrocks v. forray [1976] all e.r. 737, at p.739. 15. oliver, [1978] g.l.p. 81, at p.85. 16. see welstead, propn'ecary estoppel and the family home, at p.95 (unpublished phd thesis, university of cambridge, 1987). 119 the denning law journal exception of the inheritance (provision for family and dependants) act 1975,17 parliament has tended to adopt a status based model in legislation relating to extra-marital relationships. statutes have been worded with the purpose of protecting only those parties who live together in relationships which correspond with traditional marriage. is the mistress may have difficulty in obtaining statutory protection under status based legislation. non-statutory principles, both legal and equitable, have also been employed by mistresses seeking legal redress, but with little success. judicial interpretation of principles of contract, constructive trusts and proprietary estoppel, although in principle relationship neutral, has militated against the interests of the mistress. (a) domestic violence and matrimonial proceedings acc1976 in 1976, legislation was enacted empowering the courts to grant protective injunctions restraining one spouse from molesting another and, where necessary to prevent further violence, excluding the molesting spouse from occupation of the matrimonial home}9 section 1(2) of the domestic violence and matrimonial proceedings act 1976 extended these protective injunctions to "a man and a woman who are living with each other in the same household as husband and wife."20 the narrow wording of section 1(2) of the act has been construed in a manner which will exclude most mistresses from the protection of the domestic violence act. indavis v.johnson,21 lord denning mr accepted that the domestic violence act did not apply to mistresses. he distinguished such women from defacto wives living in the same household as their cohabiting male partners. lord denning mr regarded a mistress, somewhat deprecatingly, as a woman involved in a "casual, impertinent and secret" relationship. 22this category of woman, he thought, could not claim the protection of the domestic violence act. in the house of lords, indavis v.johnson,23 lord kilbrandon also rejected the possibility that mistresses might obtain protection under the domestic violence act. he maintained that section 1(2) of the act was "for the protection of families-households in which a man and a woman either do or do not bring up children the man and the woman being for whatever reason unmarried. "24 in spite of these judicial dicta courts may be prepared to accept that a mistress should receive the protection of the domestic violence act where she can 17. see, infra, at p.130. 18. in addition to the domestic violence and matrimonial proceedings act 1976 which is discussed in this paper, see also rent act 1977, schedule i, part i, para 2; housing act 1985, section 87. see also hill, (1987] conv. 349. 19. see wright, (1980) 130 n.l.j.; masson (1979] conv. 184. 20. see wright, (1981) ii fam. law 221. see also davis v.johnson (1979] a.c. 264, at p.334. el seq.. 21. ibid., at p.264. 22. ibid., at p.270. 23. ibid., at p.264. 24. ibid., at p.338. 120 truly a charter for mistresses demonstrate that her relationship with her lover was ofiong duration and involved at least some element of cohabitation. the relationship, for example, may have involved cohabitation during the week but weekends apart in circumstances where the lover worked away from home and returned to his family at weekends. the couple may also have spent significant periods of time on holiday together. it may be appropriate to describe the mistress here as a part-time cohabitant.25 the law has already accepted that an application under the domestic violence act may be brought by a partner who is not actually living with the molesting party at the time of the court hearing. the applicant may have been forced to leave home because of the molestation. a court will only refuse to entertain an application in these circumstances if the length of the separation suggests that the applicant no longer requires the protection of the court. 26the judgments of lord denning mr in the court of appeal and of lord kilbrandon in the house of lords, in davis v. johnson, stress the importance of the stability of the "living together relationship", prior to the application, as a factor in determining whether an applicant comes within the ambit of section i(2) of the domestic violence act. stability of the applicant's relationship was also considered to be a relevant issue by the house of commons standing committee during the committee stage of the bill on domestic violence. miss richardson mp explained that "the words, 'living with each other in the same household' are intended to avoid a casual relationship, but to indicate a continuing state of affairs."27 it would seem not unreasonable to extend to mistresses the protection of the domestic violence act. a mistress, particularly one with a child, is in no less a predicament than a cohabitant who faces domestic violence.28 (b) contractual remedies a mistress who wishes to make a claim against her lover based on an express or implied contract is liable to confront at least two obstacles. first, she must 25. see, e.g., malone v. harrison [1979] 1 w.l.r. 1353,at p.1357. hollings j in malone v. harrison (at p.1359) describes the mistress as a part-time mistress. perhaps he meant a part-time cohabitant. in re labbe and mccullough (1979), 23 or (2nd) 536, the ontario provincial court granted financial support under section 14(b)(i), para. 2 the family law reform act 1978(ont), c. 2 (now see section 29, family law act 1986(ont) c. 4) to a woman who had lived witha man for only six weeksoutofa total period of relationship of nineteen months, it is of interest to note that a new form of matrimonial relationship exists in late twentieth century english society in which husband and wife live happily married but apart: see wyn-ellis, (november, 1988)harpers and queen, at p.176, 26. see adeosa v. adeosa [1980] 1 w.l.r. 1535, at p.1538; o'neil v. williams [1984] f.l.r. 1, at p.9; mclean v. nugent [1979] 1 f.l.r. 26;mclean v.burke [1981]3 f.l.r. 70; whitev. white [1983] 2 all e.r. 51; ainsbury v. millington [1986] 1 all e.r. 73. 27. standing committee f col. 9, 20 june 1976. 28. goff lj in davis v. johnson [1979] a.c. 264, at pp.299, 300 explained the predicament of a cohabitant faced with domestic violence in the following terms: "either she stays and suffers further battering as so often happens, or she goes off and fends for herself, leaving the child or children with the violent father, which may be even worse, or she takes them with her to what is often very inadequate and squalid accommodation," 121 the denning law journal demonstrate that there was the requisite intention to enter into legal relations.29 where the parties have expressed their agreement, with respect to their relationship, in writing, there will be little difficulty in proving the requisite intention. it will, however, be rare for the parties to make an express agreement at least during the currency of the relationship. second, the courts have shown a general reluctance to enforce contracts in respect of relationships involving extramarital sexual conduct. whether the contract is based upon sexual consideration or its purpose is a sexual relationship, the law tends to the view that the contract is contrary to public policy and therefore unenforceable. 30an elaborate case law has, however, grown up excepting certain contracts involving extra-marital sexual conduct from defeasance. where a contract is made by deed or there is some alternative form of consideration, contracts in respect of past cohabitation have normally been regarded as enforceable. in ayersr v. jenkins,31 lord selbourne, the lord chancellor, maintained that covenants founded on past extra-marital sexual conduct "whether adulterous, incestuous, or simply immoral, are valid in law."32 in his view, similar contracts founded on future extra-marital sexual conduct are invalid as they tend to encourage illicit behaviour.33 inre wooton isaacson, sanders v. smiles ,34it was also held that a deed founded on past extra-marital sexual conduct was valid. the mere fact that similar future conduct was contemplated by the parties was insufficient to invalidate the deed. if, however, the deed was actually founded on both past and future extra-marital sexual conduct, it would be invalid.35 a number of eighteenth and nineteenth century mistress cases suggest that a further refinement of the doctrine relating to immoral contracts can be made. where the mistress relationship commenced by an act of seduction by the male partner or where there were quasi-matrimonial incidents to the relationship, such as long term stability or children, the courts followed the approach in ayerst v. jenkins and validated contracts based on past consideration. public policy demanded that legal redress be given to the mistress. in nye v. moseley,36 for example, a young servant was provided with a cottage by her employer for the 29. see balfourv. balfour [1919] 2 k.b. 571, at pp.578, 579. see also layton v. martin (1986) 16fam. law 212. 30. see pearce v. brooks (1866) l.r. i exch. 213, atpp.217, 218; upfillv. wnght [1910] i k.b. 506, at p.510; fender v. sr john mildmay [1938] a.c. i, at p.42. 31. (1873) 29 l.t. 126. 32. ibid., at p.128. 33. see robinson v. gee (1749) 1 yes. sen. 251,27 e.r. 1013;fordv. de pontes (1861) 30 beav. 572, 54 e.r. 1012. the major question confronting the courts has been whether the enforcement of the contract would tend to encourage the illicit conduct. it was argued innye v. moseley (1826) 6 b. & c. 133, 108 e.r. 402, at p.403 that "holding such bonds to be void will have a tendency to prolong the illicit intercourse, because it will then be the woman's interest to prevail upon the man to continue to live with her. 34. (1904) 21 t.l.r. 89. 35. see friend v. ham'son (1827) 2 c. & p. 584. 36. (1826) 6 b. & c 133, 108 e.r. 402. 122 truly a charter for mistresses purpose of a visiting extra-marital relationship with him. two children were born of the relationship. the employer subsequently terminated his relationship with the servant and executed a bond to pay her an annuity for herself and the children. bayley j held that a bond given to a single woman by her lover "as premium pudicitae at a time when he terminates the illicit connection, is valid. "37the court was prepared to uphold the contract here because it would make reparation for the damage suffered by a woman who prior to this relationship "had conducted herself with propriety and morality". 38furthermore, the enforcement of the contract would benefit the children of the relationship. where the mistress relationship has been viewed as one of prostitution, the courts have declined to give effect to a covenant founded on past cohabitation. in robinson v. cox,39 the defendant mistress was given a promissory note by the deceased prior to his death. he had maintained the mistress and provided her with a house during his lifetime and visited her once a week. the defendant was not only the mistress of the deceased, but also a common prostitute. the court distinguished between "a woman who has been modest to the rest of the world, and lain with none but the man who has given her such note or bond"40 and a woman who engaged in prostitution. the former was deemed worthy of the court's protection. the court made the presumption that the latter should be denied a remedy because "as women of the town are full of design and artifices to impose upon people, that they therefore do make use of such artifices, and are guilty of some fraud or imposition, in getting such notes; and this presumption is made from general principles of policy ... to prevent women of the town taking any advantage of their artifices."41 dwyer42 has questioned whether the old authorities relating to immoral contracts can be accepted as good law today without some qualification. he has suggested that the courts' acknowledgment of the dramatic change in the sexual mores of society which has led to the validation of contracts involving extra-marital sexual conduct may require a revision of the doctrine relating to immoral contracts. dwyer's argument may be correct in the context of decisions concerning cohabitation in a de facto marital relationship.43 there remains, however, considerable uncertainty whether the courts will be prepared to extend this liberated approach into the mistress context. two modern cases illustrate the courts' approach to contractual claims involving mistresses in twentieth century 37. ibid., at p.403. 38. ibid., at p.402. 39. (1741) 9 mod. rep. 263, 88 e.r. 439. 40. ibid., at p.44 i. 41. ibid. 42. (1977) 94 l.q.r. 386, at p.387. see also poulter, 124n.l.j. 999, at p.1034; oldham and caudill, (1984) 18 pam. l.q. 93, at pp.97, 106 et seq. 43. see, e.g.,marvinv. marvin (1976) 18 cal 3d 660, 815;andrewsv. parker [j973] qd. r. 93; stanley v. stanley (1960) 23 d.l.r. (2nd) 620;(1962) 36d.l.r. 443; wardv.byham [1956] 2 all e.r. 318. see also heglibistonestablishment v. heyman (1977) 121 sol. jo. 851. 123 the denning law journal society. the decisions suggest that the courts have not entirely abandoned the traditional approach outlined in the early case law. in tanner v. tanner,44 the court of appeal ruled in favour of a mistress, abandoned with young children, on the breakdown of her relationship with her lover by inferring a contractuallicence.45 here, the plaintiff, a married man, had lived with his wife and adult children whilst at the same time indulging in a visiting relationship with the defendant mistress. at the commencement of the relationship, his mistress lived in a rent controlled flat as a protected tenant.46 she subsequently became pregnant and gave birth to twins. the plaintiff began to lose interest in the relationship. he did, however, purchase a house, installed his mistress and their children on the ground floor and let the upper floor to tenants. the mistress managed the lettings and collected the rent. in this way, the mistress and children were partially maintained.47 the defendant mistress was only one of a number of women with whom the plaintiff had a visiting relationship. eventually, the plaintiff broke off his relationship completely with the defendant and asked her to leave his property. he had, by this time, divorced his wife and married another woman who was pregnant with his child. he wanted the property to enable his new family to have a home there. he therefore brought proceedings against the defendant for possession of the property. the defendant counter-claimed 'inter alia' that she had a long term licence to occupy tre property.48 the court of appeal granted the defendant's counter-claim and id.ferred that the terms of the contractual licence were such that her occupation of the plaintiff's property was to be protected until the children were no longer of school age. in tanner v. tanner the court of appeal found it unnecessary to confront the issue of immoral consideration. this is implicit in the decision in that the court accepted that the plaintiff had effectively ended his relationship with the defendant by the time she relocated to his property.49 the court viewed the purpose of the contract in terms of a benefit to the defendant in her capacity as mother of the plaintiff's children and not as his mistress. lord denning mr also found that the defendant mistress had provided the requisite consideration for a contractual licence, because she had relinquished her rent controlled tenancy when she moved to the plaintiff's property. 44. [1975]3 all e.r. 776. see also barron, (1976) 92 l.q.r. 168. . 45. a contra,ctuallicence is a licence granted under the terms of some form of contract which restricts the licensqt~sright to revoke it: see errington v. errington [1952j i k.b. 290; binions v. evans [1972] ch. 359; dhn food distributors lrd. v. tower hamlets lbg (1976] i w.l.r. 852; re sharpe (1980] i w.l.r. 2'19;ashburn ansralr v. arnold (1988] all e.r. 147. 46. tanner v. tanner [1975] 3 all e.r. 776, at p.779. 47. the mistress and children were dependent primarily on social security for their maintenance. 48. tanner v. tanner [1979] all e.r. 776, at p.779. counsel for the defendant had alternatively submitted that a trust could be inferred whereby she obtained a beneficial interest in the property for herself and her children. the county court judge rejected this contention and there was no discussion of this point in the court of appeal. 49. (1976] i all e.r. 737, at p.745. 124 truly a charter for mistresses by the time the defendant's claim had reached the court of appeal, she had left the plaintiffs property in pursuance of an order made by the county court. in those circumstances the court of appeal awarded her £2000 for the loss of her contractual licence. the decision in tanner v. tanner reflects the approach taken in the early mistress cases. lord denning mr took the view that the defendant had not only "a moral duty to provide for the babies of whom he was the father", but also "a duty to provide for the mother."50 public policy demanded that the plaintiff should take responsibility for his children and their mother at the end of an illicit relationship. six months after the decision in tanner v. tanner, a differently constituted court of appeal refused to grant a contractual remedy to a mistress with children after the sudden death of her lover. the defendant mistress inh orrocks v .forray 51 had been the deceased's mistress since the age of fifteen. their relationship of some seventeen years had endured until the moment of death. throughout this time, the deceased had lived with his wife who remained totally unaware of the existence of his mistress and child. the deceased had purchased a house for his mistress in which she lived with their child and a child of her previous marriage. immediately after the unexpected death of the lover, his executors learned of the existence of the mistress and her home. they brought proceedings for possession of this property. the defendant relied on the decision in tanner v. tanner and argued that she had a contractual licence for life or for as long as the daughter was receiving full-time education or for as long as she and the daughter reasonably required the property as their home.52 she maintained that she had given consideration for this licence because she had left her previous home and had also withheld any action for an affiliation order for her daughter. the court of appeal rejected the mistress' contention. it accepted that the deceased had intended to provide for his mistress and daughter but not in the form of a contractual licence to occupy the property. 53 according to the court of appeal, there was neither evidence of an intention by the parties to enter into legal relations nor of the necessary consideration from which the court might be prepared to infer a contract. 54 in horrocks v. forray, scarman lj attempted to distinguish the decision in tanner v. tanner and thereby limit its application in the future. he suggested that an inference of a contract could readily be drawn in those circumstances where the relationship of mistress and lover was close to breakdown and both parties wished to arrange for the future of their children. 55 in tannerv. tanner, in his view, "the 50. tanner v. tanner [1975j 3 all e.r. 776, at p.779. 51. horrocks v. forray [1976] 1 all e.r. 737. 52. ibid., at p.74o. 53. ibid., at p.744. 54. ibid., at p.745. 55. ibid. 125 truly a charter for mistresses woman was concerned for herself and her children: the man concerned to limit and define his financial responsibilities towards the woman and the children,"56 in horrocks v.forray, according to scarman lj, the parties had not contemplated the sudden accident that had befallen the deceased. the circumstances here were those of "a continuing, warm relationship of man and mistress"57 living in luxurious and extravagant style right up to the moment of death. the subject of contractual licences was far from the parties' minds. scarman lj also found that the deceased's provision for his mistress was generous beyond what one would reasonably expect the man to provide in a legally binding obligation. it was generous, not because he was bound, or was binding himself, to be generous, but because he chose to be generous to the woman "for whom there was a big place in his heart."58 the implication ofthis view is that a less generous provision would be provided had the parties chosen to regulate their relationship by contract. scarman lj did not, therefore, think it right for the court to infer a contractual licence on the facts in horrocks v. forray. according to scarman lj, there was, however, nothing contrary to public policy which prevented a court of law from enforcing an express contract which provided maintenance for a mistress who cared for her lover's child. he suggested that it was better for parents in such a situation" ... to regulate their position by contract than that they should have to resort to the court under the affiliation proceedings act."59it remains uncertain whether the dicta of scarman lj support the view that the courts will enforce an express contract, regulating a mistress relationship from the outset or whether they merely reinforce the traditional view that the courts will only enforce a contract in circumstances where the relationship is at an end,60 in horrocks v,forray, the deceased's estate was at risk of insolvency because of his extravagant lifestyle. the wife of the deceased, who was unaware of the defendant mistress' existence until after her husband's death, would have been left' with financial problems unless the mistress' home could be sold.61 the court of appeal implicitly weighed up the competing claims of the wife and mistress. the latter had been treated generously in her lifetime. the court of appeal was not prepared to jeopardize the financial future of a legitimate wife by inferring a contract in favour of a mistress in the context of a continuing relationship. (c) constructive trusts and proprietary estoppel where a lover has provided a home for his mistress during the currency of the relationship, she may wish to preserve this home when the relationship is 56. ibid, see dwyer, (1977) 93 l.q.r. 386, at p.397 for a criticism of this view. 57. [1976] 1 all e.r. 737, at p.745. 58. ibid., at p.746. 59. ibid., at p.745. 60. see n. 35, supra. 61. [1976] 1 all e.r. 737, at p.739. 126 truly a charter for mistresses terminated. in the absence of a written express grant of a legal or an equitable title in the property in her favour, a mistress may resort to the doctrine of constructive trusts or the analogous doctrine of proprietary estoppe1.62 she is, however, unlikely to achieve success in protecting her home under either doctrine. under english law a mistress who wishes to establish a plea based on the doctrine of constructive trusts, must assert the existence of an overt or an inferred common intention that she should receive a beneficial interest in her lover's property. in addition there must also be proof that she acted to her detriment in reliance on that common intention.63it will be a rare case where a mistress is able to show that there was an overt common intention that she should receive a beneficial interest in her home. there are no reported mistress cases where such a claim has been made. where, however, a mistress is able to prove the existence of an overt common intention, she must also prove the requisite detrimental reliance. in grant v. edwards,64one of the few cohabitlfnt cases in which an overt common intention was proven, the court of appeal held that detrimental reliance in the context of constructive trusts included any conduct referable to the acquisition of the property. 65in the majority of mistress cases, it will be difficult to meet this requirement. mistresses, by definition, are kept women who are dependent on their lovers. they are unlikely to contribute money towards the acquisition of their lovers' properties. ineves v.eves,66substantial work relating to the material fabric of the property was also accepted as evidence of detrimental reliance in circumstances where the existence of an overt common intention had been proven. a mistress who is able to demonstrate that she has made a labour contribution to the property may succeed in a claim based on the doctrine of constructive trusts. where there is no overt common intention, the courts will be prepared to infer the relevant intention from direct, substantial, financial contributions referable to the property.67 for the reasons stated above, a mistress is unlikely to have made such contributions. a claim based on proprietary estoppel is not dissimilar to one based on the doctrine of constructive trusts.68 in the aftermath of taylors fashions ltd. v. liverpool victoria trustees co. ltd.69 it has been generally assumed that the elements of proprietary estoppel can be condensed into two interlinked 62. see, e.g.,re sharpe [1980] i w.l.r. 219, at p.225; walkerv. walker (unreported, court of appeal, 12 april 1984);grant v. edwards [1986] 3 w.l.r. 114, at p.129. see also welstead, supra n. 16. 63. see gissing v. gissing [1971] a.c. 886; burns v. burns [1984] ch. 317; grant v. edwards [1986] 3 w.l.r. 114,at p.l20 et seq.. lloydsbankp.l.g. v.rosserr [1990]i all e.r.iiii (h.l.). see also eekelaar, [1987] conv. 93; warburton, [1986] conv. 291; hayton, [1988] conv. 259. 64. [1986] 3 w.l.r. 114. 65. ibid., at pp.122, 127. cf. the approach of browne-wilkinson v-c in grant v. edwards to the question of detriment. he suggested that "any act ... relating to the joint lives of the parties" is sufficient detriment for a successful claim based on the doctrine of constructive trusts (at p.130). 66. [1975] i w.l.r. 1338, at p.l345. 67. see grant v. edwards [1986] 3 w.l.r. 114, at p.121. 68. see, supra, n. 62. 69. taylors fashions ltd. v. liverpool victoria trnstees co. ltd. [1982] q.b. 133. 127 the denning law journal requirements distilled from oliver j's broad test of unconscionability in that case. first, there must be an encouragement engendered by the proprietor that some rights have been granted in or over the property. secondly, the person in whom the encouragement has been engendered must act to her detriment in reliance on that encouragement.70 the detrimental reliance in the estoppel context need not relate to the property nor even to the joint lives of the proprietor and claimant.71 in satisfying any claim made under the estoppel doctrine, the court has complete discretion over the remedy granted. 72the doctrine is thus more flexible than that of constructive trusts; this flexibility has been of little benefit to mistresses who seek to protect their homes. in coombes v. smith,73 judge jonathan parker qc accepted counsel's observation that "if the plaintiff in the instant case has an equity to remain in occupation of the property, then a similar equity may be expected to arise in the majority of cases where there is a dispute over property between a man and his mistress. "74 he thus made explicit the policy reasons for rejecting a mistress' claim to occupy property based on a plea of proprietary estoppel. the court in coombes v. smith considered first the question of encouragement. the defendant had provided a house for the plaintiff mistress and the child of their relationship. he, meanwhile, continued to live with his wife and family. when the plaintiff asked him to place the property in joint names, he assured her that she need not worry because "he would provide a roof over her head". 75it would not seem unreasonable that the plaintiff should have inferred from this that she had been encouraged to expect a permanent right of occupation. this, however, the judge did not accept. he explained somewhat obscurely that "a belief that the defendant would always provide her with a roof over her head is, to my mind, something quite different from a belief that she had a legal right to remain there against his wishes."76 the parties in coombes v. smith had not discussed what should happen in the event of a breakdown in their relationship. the defendant's statement that he would provide a roof over his mistress' head was, therefore, not viewed as an encouragement by the court. it was deemed to lack the necessary clarity for the purposes of an estoppel claim. even if the court in coombes v. smith had been prepared to make a positive finding of encouragement it was not prepared to accept the mistress' claim of detrimental reliance. the first act claimed by her as detrimental reliance was that 70. see, e.g. ,amalgamated bwestment and property co. ltd. v. texas commerce international rank ltd. [1982j q.b. 84; cameron v. murdoch [1983j w.a.r. 321. see also welstead, supra n. 16. 71. grant v. edwards [1986j 3 w.l.r. 114, at p.130. see also riches v. hogben [1986] i qd. r. 315. 72. see, e.g. ,plimmer v. mayor etc. a/wellington (1884) 8 app. cas. 699, at p.713; crabbv.arund.c. [1976] ch. 179, at p.189; grlffiths v. williams (1977) 248 estates gazelle 947, at p.949. 73. [1986j i w.l.r. 808. see also hayton, [1986] c.l.j. 395. 74. coombes v. smirh [1986] 1 w.l.r. 808, at p.821. 75. ibid. cf. the approach of the court in cases involving cohabitation, e.g. pascoe v. turner [1979] 1 w.l.r. 431; greasley v. cooke [1980] 1 w.l.r. 1306. 76. coombes v. smith [1986j 1 w.l.r. 808, at p.820. 128 truly a charter for mistresses she had allowed herself to become pregnant by her lover . judge jonathan parker qc simply stated without explanation that he was "unable to treat the act of the plaintiff in allowing herself to become pregnant as constituting detriment in the context of proprietary estoppel."77 however, pregnancy outside the context of a long term relationship and without the security of a home is normally regarded by society as a detrimental alteration of position. there seems to be no clear reason why pregnancy should not be treated as a relevant detrimental reliance for the purpose of an estoppel claim. the second act claimed as detrimental reliance by the plaintiff was that she had left her husband, with whom she was unhappy, in order to move into the defendant's property. the judge accepted the submissions of counsel for the defendant that "whenever a woman moves into a house provided by a man, she must have come from somewhere else; and that, if the mere fact of that inevitable change were sufficient as detriment, there would be detriment in every case."78on this basis, an estoppel claim would simply fail on the ground that too many women would otherwise be able to make estoppel claims if leaving one home and moving into another were automatically accepted as relevant detrimental reliance. such a view disregards the possibility that women might still leave their husbands and seek alternative accommodation rather than become the mistresses of men and live in property provided by their lovers if they knew that their lovers would subsequently attempt to evict them. in coombesv. smith, the third and fourth acts claimed as detrimental reliance by the plaintiff took the form of giving birth to, and taking care of, the child of the relationship. these acts, without further discussion, were also disallowed as relevant detrimental reliance. there has traditionally been a reluctance in claims for damages in contract or tort to accept that the birth of a child after the failure of a sterilization operation can give rise to a compensatable claim.79 nevertheless, there has been an acceptance in such claims that pregnancy inevitably leads to a loss of income by the mother which can result in an award of damages.8o there seems to be no reason, other than one based on policy considerations, why this loss of income should not constitute detrimental reliance sufficient to found an estoppel claim. the plaintiff in coombes v. smith had also spent money and labour on the decoration of the property. the court rejected this act as detrimental reliance without explanation, the assumption seeming to be that as she had already enjoyed the benefits of such improvements, she had suffered no detriment. 77. ibid., at p.820. 78. ibid., at p.816. 79. see, e.g.,jones v. berkshire area health a uthority (unreponed, court of appeal, 2 july 1986); gold v. haringay health authority [i 987] 2 ail e.r. 888, at p.890 per lloyd lj. see also, symmons, (1987) 50 m.l.r.269. 80. see emeh v.kensington and chelsea and westminster area health authority [1984] 3 all e.r. 1044, at pp.1051 et seq. 129 the denning law journal finally, the plaintiff claimed that she had deliberately refrained from looking for a job. the judicial response to this claim was that the defendant had been content to pay the bills and that the plaintiff had not therefore needed a job. the court failed to take account of the fact that the plaintiff would quite clearly suffer detriment if the belief which she claimed had been engendered by the defendant's encouragement was not fulfilled. it was predictable that she would find difficulty in finding a job, having absented herself from the employment market for seventeen years. the defendant had benefited from his mistress' conduct in caring for their child and his property but implicit in the decision of the court was the idea that the defendant had benefited less than his mistress. the defendant was paying a small amount of maintenance to the plaintiff for their child. he was also prepared to permit the plaintiff a limited right of occupation in the property until their child reached the age of seventeen. 81 in these circumstances, the court took the approach that the mistress did not require the protection of equity. iii the inheritance (provision for family and dependants) act 1975truly a charter for mistresses parliament clearly anticipated the possibility of a claim against a deceased's estate by a mistress under the inheritance (provision for family and dependants) act 1975 (referred to in this article as the inheritance act).82the earl of mansfield observed, during the committee stage of the bill, that the class of those who would be able to seek relief under the new legislation had been widened to include mistresses who, in the future, would be" ... given a much fairer crack of the whip than ever before. "83 in malone v. harrison,84 lord mansfield's observations became fact. an application for provision under the inheritance act was made for the first time by a mistress. 85 the plaintiff had been the mistress of the deceased since she first met him when she was aged twenty three. she had lived in properties, both in england and abroad, purchased by her lover who financially supported her in a most generous manner. he was descri bed as a "consummate deceiver". he had not only 81. see also savva v. costa and harymode developments lcd. [1981j 131 n.l.j. 1114. 82. during the debates on the bill concern was expressed by those opposed to provision for mistresses that the proposed legislation would permit claims by the mistress: see, e.g., h.c. deb. vol. 895, col. 1690et seq., h.c. deb. vol. 898, cols. 171, 172, 175, 187. the law commission considered the report of the law reform committee of western australia entitled "the protection to be given to the family and dependants" of a deceased person. in this report the committee recommended the protection of members of the deceased's household. had the law commission adopted this approach the mistress would have been left unprotected. see law commission no. 61, second report on family property: family provision on death (1976), para. 86. 83. h.l. deb. vol. 358, col. 924. see also h.l. deb. vol. 358, col. 932, per lord wilberforce. 84. [1979j iw.l.r. 1353. 85. cf. cadwallader, [l980jconv. pp.46,49; green, [i988j 51 m.l.r.187,at p:196. both cadwallader and green use the term mistress to describe a cohabitant. 130 truly a charter for mistresses a wife but also a defacto wife and several mistresses who were largely unaware of each other's existence. hollings j acknowledged the likelihood that the deceased did not want to distress his defacto wife by making express provision in his will for an undisclosed mistress and granted the mistress financial provision from her late lover's estate.86 the deceased in malone v. harrison had actually foreseen the possibility of an application by his mistress under the inheritance act. he had sent her a press cutting from the sunday times which explained in detail the inheritance act which at the time was going through parliament. (a) applications under section l(l)(e) of the inheritance act section 1(1)(e) of the inheritance act permits a mistress, inter alia, to apply for provision from her deceased lover's estate if she has been maintained wholly or partly by him immediately prior to his death and if the disposition of his estate did not make reasonable provision for her. (i) a person maintained by the deceased section 1(3)ofthe inheritance act provides that where an application is made under section l(l)(e) of the inheritance act, a person will be treated as being maintained by the deceased if he " ... otherwise than for full valuable consideration, was making a substantial contribution in money or money's worth towards the reasonable needs of that person." inma/one v.harrison, hollings j made merely fleeting reference to section 1(3) because the executors had conceded that the mistress applicant came within section 1(1)(e).87the mistress in malone v. harrison had undoubtedly been maintained by the deceased for some twelve years prior to his death. the maintenance had been lavish. the mistress had received furs and jewellery worth £5,500; expensive holidays abroad; all her living expenses; the lease of a hairdressing salon; a joint share in two flats and shares worth £15,000. section 1(3) of the inheritance act has normally been construed as a qualifying provision to section 1(l)(e).88 in the absence of a concession by the deceased's executors, a mistress will be unable to satisfy section 1(3) if she has given full valuable consideration in return for her maintenance by the deceased. in re beaumont,89 megarry v-c maintained that an accounting exercise should be undertaken for the purpose of section 1(3). he suggested that whether the respective contributions made by the applicant and the deceased towards the reasonable needs of the other were made under a contract or not they should be balanced. if the deceased's contributions substantially outweighed those of the applicant, the latter should be permitted to make a claim against the deceased's 86. malone v. harrison [1979] i w.l.r. 1353, at p.1359. 87. ibid., at p.1360. 88. in re beaumonr [1980] ch. 444, at p.45\. see also naresh (i 980) l. q.r. 534, at p.535; cadwallader, (1981) 125 sol. jo. 175; dewar, (1982) 12 fam. law 158. 89. [1980] ch. 444, at p.45\. 131 the denning law journal estate. if the applicant's contributions outweighed those of the deceased, the claim must fail. 90 injelley v.i1lffe,91 stephenson lj accepted that it was the court's duty as a part of the accounting exercise to assess the financial value of such imponderables as companionship in addition to financial contributions. for this purpose he suggested that the court should ask the question "was this man dependent on this woman during his lifetime ... or did he give as good as he got?"92 in the context of applications by a mistress, it is uncertain what approach the courts will take in the accounting exercise necessitated by section 1(3). the very nature of the mistress relationship involves the provision of services by the woman for her lover rather than any financial contribution. these services will be particularly difficult to evaluate. where a mistress has received substantial benefits during the lifetime of the deceased, as in malone v . harrison, those benefits will without question outweigh any contribution however evaluated. where a deceased has been less generous in his maintenance of his mistress, her claim may fail if her services to the deceased are deemed to represent full valuable consideration for her meagre maintenance. the anomaly exists that a mistress who has lavished loving care on a man who has rewarded her meanly will be less likely to succeed than an uncaring mistress who is well rewarded by the deceased. megarry ]'s construction of section 1(3) of the inheritance act appears to reflect the biblical message that" ... unto everyone that hath shall be given, and [she] shall have abundance: but from [her] that hath not shall be taken away . . ." section 1(3) of the act refers to contributions by the deceased towards the applicant's maintenance "in money or money's worth". it has been suggested that contributions by an applicant in the form of companionship should only be taken into account insofar as they involve services which would normally be paid for.94 injelley v. i1ifle,95 griffiths lj suggested that in the circumstances of a man living with a woman as his wife, providing the house and all the money for their living expenses "she would clearly be dependent upon him, and it would not be right to deprive her of her claim by arguing that she was in fact performing the services that a housekeeper would perform and it would cost more to employ a housekeeper than was spent on her."96 if courts are prepared to recognize that a mistress' relationship with the deceased was of a quasi-polygamous nature, her 90. ibid., at p.453. 91. [1981] 2 all e.r. 29. 92. ibid., at p.36. cf re c (1979) 123 sol. jo. 35; re wilkinson [1978] fam. 22. 93. matthew 25:29 (king james bible). the courts may, of course, redress the inequity inherent in this message in the exercise of their discretion under section 3 of the inheritance act. 94. see bromley's family law 7th ed (1987), at p.740. see also law commission no. 61 second repon, "family property: family provision on death" (1974), para. 98 h.c. standing committee c. 1974-75 session, col. 12. 95. jelley v.llllffe [1981] 2 all e.r. 29. 96. ibid., at p.38. see also bishop v. plumley (the times, july ii, 1990). 132 truly a charter for mistresses contributions to the deceased's welfare may be viewed as not dissimilar to those of a de facto wife. where, however, the relationship of the mistress and the deceased was primarily of a sexual nature, the courts might be faced with a dilemma. to refuse to evaluate the sexual contribution of the mistress would lead to a finding that her maintenance by the deceased was otherwise than for full valuable consideration. such a finding would permit the mistress' application to be considered. if the courts evaluate the sexual contribution and find that the mistress had thereby given full valuable consideration, the mistress' application would fail, but the court's evaluation of sexual contribution would be tantamount to giving recognition to a contract for sexual services.97 (ii) reasonable financial provision not only must a mistress show that she was being maintained by the deceased prior to his death, she must also prove that the disposition of the deceased's estate did not make reasonable financial provision for her. section 1(2)(b) of the inheritance act defines reasonable financial provision for a mistress applicant claiming dependency on the deceased under section 1(1)(e) as "such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for [her] maintenance." a mistress who has received generous provision from the deceased during his lifetime is not excluded from making an application. in malone v. harrison although the mistress applicant had been well recompensed during the deceased's lifetime she had received no benefit whatsoever from the disposition ofthe deceased's estate. thus clearly she fulfilled the requirements of section i(2)(b ). where a mistress has received some provision from the disposition of the deceased's estate, the question arises whether that financial provision is such as ". .. would be reasonable in all the circumstances of the case" for her maintenance. the court is enjoined to answer this question by having regard to the matters outlined in section 3. this section will be considered below.98 (iii) immediately before the death of the deceased a mistress whose relationship ended prior to the death of her lover will receive no assistance from the inheritance act. section 1(i)(e) limits applications to those for whom the deceased was actually financially responsible during his lifetime. a financial duty cannot be imposed on the deceased's estate for a mistress for whom the deceased had ceased to be financially responsible. 99 in re beaumont, megarry v-c considered the meaning of the phrase "immediately before the death of the deceased". he interpreted the phrase to mean not necessarily "thede facto state or balance of maintenance at that moment 97. see, supra, n. 30. 98. see in re callaghan [1984] 3 w.l.r. 1076; virdi, (1982) 12 fam. law 240. 99. see, e.g., kourkgy v. lusher (1981) f.l.r. 65. 133 the denning law journal [of death], but something more substantial and enduriilg" such as the "settled basis or arrangement between the parties as regards maintenance."! his concern which led to this statutory reconstruction was twofold. first, he believed that an application under section 1(l)(e) should not fail because in the immediate period before death the applicant had cared for the deceased and thereby her contribution had temporarily exceeded that of the deceased. secondly, megarry v-c wished to prevent a person who was fortuitously being maintained at the moment of the deceased's death from making a successful claim when there had been no assumption of maintenance by the deceased at an earlier stage.2 to these concerns expressed by megarry v-c might be added a third. a deceased might, because of illness or incapacity, be incapable of maintaining his mistress immediately before his death. to deny her a right to apply under the inheritance act because of a break in maintenance at this stage would be to thwart the purpose of the act.3 (b) matters to which the court is to have regard in its determination of reasonable financial provision the court is granted considerable discretion under section 3 of the inheritance act. this section provides that the court shall have regard to a number of interrelated matters to enable it to determine whether and how to satisfy a mistresses' claim for maintenance from the deceased's estate. the task of the court would appear to be remarkably similar to that of the family division in proceedings relating to family provision after divorce.4 in malone v.harrison, hollings j awarded the mistress applicant a capital sum of £19,000. he explained that such an amount would provide for such maintenance "as is reasonable in all the circumstances for the plaintiff to receive."5 the decision inmalone v.harrison outlines the task of the court under section 3 of the inheritance act in its determination of an award of maintenance. (i) the financial resources and financial needs of the applicant section 3(1)(a) of the inheritance act provides that the court must consider what financial resources are available to the applicant in relation to her needs. in malone v. harrison, the applicant's resources were not insubstantial. she had capital assets of some £34,000 which were readily realisable. these assets did not i. in re beaumont [1980] ch. 444, at p.452. because megarry v-c did not address the question of whether a settled basis of maintenance was a necessary as well as a sufficient condition to satisfy the requirement of section 1(1)(e) it is arguable that the decision inre beaumonl merely states that a settled basis of maintenance is a sufficient condition. where there is no settled basis of maintenance the courts may have to look at the defaero state of maintenance. see naresh, (1980) 96 l.q.r. 535, at p.547. see also law commission no 61 second repott on family property: family provision on death (1974), para. 93. 2. see jelley v.iliffe [1981] 2 all e.r. 29, at p.34 el seq. 3. ibid. 4. see matrimonial causes act 1973, s.25 as amended by the matrimonial and family proceedings act 1984. 5. malone v. hamson [1979] 1 w.l.r. 1353, at p.1365. see also bennet, (1980) 130 n.l.j. 565. 134 truly a charter for mistresses include furs and jewellery. the court, with the concession of the executors, was not prepared to consider these latter gifts as part of the financial resources available to the applicant.6 hollings j accepted that the applicant's earning capacity was not good but nonetheless took the approach that some form of employment was within her capabilities. such employment could be expected to make a fifty per cent contribution to her needs. the approach of the court was more than generous in the context of a fit thirty eight year old female albeit one who was workinexperienced. her earning capacity, according to the court, had been significantly weakened by her lover's negative attitudes to,wards her attempts to obtain work during his lifetime. the deceased had preferred her to be available for his needs.7 the applicant's lack of earning ability was a direct consequence of her relationship with the deceased. (ii) resources and needs of other applicants .and benefician'es : obligations and responsibilities of the deceased the mistress was the only applicant for financial provision from the deceased's, estate in malone v.harrison. therefore, section 3(i)(b) of the inheritance act was irrelevant. however, other mistresses might find themselves in competition with another applicant such as de facto or de jure wives whose resources and needs would have to be considered under this section. inmalone v.harrison, hollings j attached considerable importance to section 3(1)(c) of the inheritance act which relates to the financial needs and resources of the beneficiaries. the beneficiaries here were primarilydefacto ordejure members of ~he deceased's family.s they included both a wife and a de facto wife. in balancing out the resources and needs of the beneficiaries, hollings j appeared to rank the beneficiaries in accordance with what he viewed as the deceased's responsibilities and obligations towards them in accordance with section 3(1)(d). hollings j implicitly took the approach that there was a lesser obligation on the deceased to provide for his brother who already had a substantial income than to make provision for other members of his family. he thus concluded that any order for the mistress applicant should be deducted from the deceased's bequest to his brother. where an applicant or beneficiary has a physical or mental disability, the court must take this into account in determining any award.9 (iii) the size and nature of the deceased's estate section 3(1)(e) of the inheritance act provides that the court must take into account the size and nature of the deceased's estate. where an estate is of 6. malone v. harrison, supra n. 5, at p. 1358. 7. ibid., at p.1356 er seq. 8. ibid., at p.1362. 9. see section 3(1)(f), inheritance (provision for family and dependants) act 1975. 135 the denning law journal substantial size, there will be little problem in making an order for the mistress' reasonable maintenance. any order made in these circumstances will however relate to the level of maintenance received by the mistress during the deceased's lifetime rather than to the size of the estate. where an estate is small, the court may be forced to scale down any award it would otherwise make. inmalone v.harrison, hollings j acknowledged that the size of the deceased's estate was significant only to the extent that there were sufficient resources to make the award which he thought to be appropriate.lo (iv) any other matter the court is granted a general discretion under section 3(1)(g) of the inheritance act to take into account "any other matter including the conduct of the applicant" or any other person in deciding any application. in malone v.harrison, hollings j maintained that the deceased's conduct was an important factor in his decision. he found that the deceased had monopolized the applicant for twelve years of her life. the deceased had" ... discouraged her from seeking gainful employment. he taught her to rely upon him for all her financial needs ... "11this did not mean according to hollings j. " ... that the deceased through his estate should be punished, but as he was generous to her in her lifetime, so within the limits set by the statute should the court be in deciding what if any order to make."12 (v) the deceased's assumption of responsibility in accordance with section 3(4) of the inheritance act, the court, in its determination of any entitlement for a mistress applicant, must have regard to the "extent to which and the basis upon which the deceased assumed responsibility for the maintenance of the applicant and to the length of time for which the deceased discharged that responsibility." inmalone v.harrison, hollings j stressed that section 3(4) ought to playa major part in his decision. he did not however address the question of what constitutes an assumption of responsibility for maintenance. hollings j merely had regard to the characteristics of the assumption of responsibility by the deceased for the applicant's maintenance. in his view, the deceased had assumed full responsibility for the applicant's maintenance during his lifetime for some twelve years ... on the basis that he would not leave her unprovided for in case of his death. 13 furthermore, the deceased had demonstrated unequivocally his desire that the applicant should be dependent on him. he did not want her to work. he wished 10. malone v. harrison [1979] i w.l.r. 1353, at p.j364. ii. ibid. 12. ibid. 13. ibid. see borthwick v. borthwick [1949] i ch., at p.401 where harman j, in the context of an application by a wife, thought that the conduct of the applicant towards the testator could not make the difference between "whether you leave her starving in the gutter or not." conduct could only be taken into account in that "an extravagant or erring wife may be given less than one against whom nothing can be said." 136 truly a charter for mistresses her to be available for him so that he could " ... drop in at her flat in the late afternoon after work to relax and talk to her about his work and other matters, and he liked also to telephone her during the daytime, sometimes three or four times a day.14 the question of what constitutes an assumption of responsibility for maintenance arose in re beaumont. megarry v-c took the approach that an applicant had to prove that the deceased had actually assumed responsibility for her maintenance. the mere fact of maintenance was insufficient. according to megarry v-c, without proof of an assumption of responsibility for maintenance, the court could not have regard to the nature of the assumption of responsibility as enjoined to do under section 3(4) of the inheritance act. in his view, any application without proof of assumption of responsibility for maintenance would have to be struck out by the court.15 this restricted view of section 3(4) of the act would have left many mistress applicants under the inheritance act without a remedy if they were unable to point to any act, other than the fact of maintenance itself, which would provide the necessary proof of an assumption of responsibility for their maintenance by their lover. however, injelley v./liffe,16 the court of appeal rejected the approach of megarry v-c in re beaumont. stephenson lj asked " ... how better or more clearly can one take or discharge responsibility for maintenance than by actually maintaining ... if b is a's mistress and he maintains her by providing her with accommodation or money or both, has he not assumed or taken on responsibility for her maintenance?"! 7 stephenson lj accepted that an assumption of responsibility based on the fact of maintenance alone would be presumed but it would be rebuttable by a disclaimer on the part of the deceased. stephenson lj was influenced in his view by the object of the inheritance act which was to remedy "the injustice of one, who has been put by a deceased person in a position of dependency .... " such a person was not to be "disentitled from applying for provision ifhe can prove that the deceased by his conduct made him dependent on the deceased for maintenance, whether intentionally or not."18 iv conclusion the inheritance (provision for family and dependants) act 1975 was courageous and creative legislation. parliament explicitly recognised the injustice resulting to a mistress when a testator, who has encouraged her dependency for maintenance on him, makes no provision for the continuance of that maintenance after his death. a mistress whose relationship ends with her lover's death need not resort to stretching the vagaries of contract law and equitable principles in the faint 14. malone v. harrison [1979] 1 w.l.r. 1353, at p.1356. 15. in re beaumont [1970] ch. 444, at p.445. 16. jelley v. iliffe [1981] 2 all e.r. 29. 17. ibid., at p.35 et seq. 18. ibid., at p.36. 137 the denning law journal hope that she will obtain redress. nor does she have to resort to straining statutory definitions to bring herself within the ambit of statutes designed to protect cohabiting relationships. the discretionary nature of the inheritance act enables the court to determine a mistress' claim in a manner which will do the least injustice to beneficiaries, intestate successors and any other applicants under the act. the inheritance act has not, however, been warmly welcomed by everyone. 19 critics of the mistress relationship have made a number of accusations against the act. the act is said to threaten not only freedom of testation and the institution of marriage but also to prolong the harm done to a woman by the fact of induced dependency during the lifetime of the testator. 20 to these accusations may be made three responses.first, there seems little reason to grant freedom of testation to one who has restricted the freedom of another by encouraging her to subjugate her way of life to his. secondly, it is not the act which threatens the institution of marriage but the testator's conduct in engaging in a mistress relationship during his lifetime. thirdly, although induced dependency may be viewed as harmful to women, that harm will not be removed by imposing a different form of harm homelessness and penury which would result from the denial of a remedy to an already dependent mistress. if the mistress relationship is deplored by society any sanction which purports to eradicate the relationship must operate equally against both participants in the relationship and not merely against the female. any repeal of section l(l)(e) of the inheritance act which would prevent applications by mistresses for maintenance would be to indulge in an exercise in sexism. that cannot be the object of good law. whether parliament should now turn its attention to the predicament of a mistress whose relationship ends not by the death of her lover but by abandonment remains a contentious issue.21 if a dependent mistress is to be permitted to apply for maintenance where the relationship is ended by the death of her lover there seems to be every reason to enact legislation which would equally permit her to make a claim on the breakdown of her relationship with her lover. justice which takes effect only on death is most unsatisfactory. if domestic violence is to be regarded as a problem for those who cohabit, albeit temporarily, in a defacto matrimonial relationship, there is no reason to disregard the plight of the mistress who faces domestic violence. any proposed statute relating to support could use the inheritance act as its prototype. dependency of the mistress during the relationship could be the key factor for the purposes of determining financial provision.22 the existing domestic violence legislation requires very little amendment to grant protection from molestation for a man and woman who have 19. see, e.g., green, (1985) 51 m.l.r. 187. 20. ibid., at p.207. 21. see, e.g., freeman and lyon, cohabitation without marn'age (1983), at p.183 et seq. 22. see blake, (1982) 12 fam. law 95; eekelaar, (1975) 38m.l.r. 241; harpum, [1982j oxf.jo.l.s. 277. 138 truly a charter for mistresses engaged in a relationship of some permanence with each other. unless such protective legislation is enacted a mistress must continue to hope that, if her relationship with her lover comes to an end, he should die rather than abandon her. 139 enforceable community rights and national remedies andrew durand* enforceable rights in english law in general it has been the existence of a remedy at common law or under statute which has enabled the english lawyer to deduce the existence of a right. eec law involvesthe opposite process: it impliedly confers rights which by their nature are ill defined, and leaves it to national law to supply the remedy, a process for which the common law with its limited and distinct categories of civil liability is ill adapted. the european communities act 1972 in s.2(1) does not make the process easier. rights arising under the eec treaty are, it is there said, to be recognized and enforced by the courts "accordingly". they are given a name: "enforceable community rights". but the courts are left to work out whether such rights are merely negative: the right to prevent the state (or anyone else) from applying or enforcing inconsistent national law; or restitutionary, the right to get back money illegally levied by the state; or tortious, the right to get damages for infringement of the treaty. the appropriate categorization of enforceable community rights is made that much more difficult because two distinct courts are involved, the european court and the national court. the remedy and the right, which are the opposite sides of the same coin, are treated as two different coins by two different courts using two different sets of terminology. nevertheless it has somehow proved workable and gradually the solutions are emerging. in 1974 lord denning m.r. had no doubts as to the appropriate classification of a community right. he concluded, solely on the basis of the european courts' description of such rights 1 that in a particular case articles 85 and 86 "create new torts or wrongs. their names are 'undue restriction of competition within the common market'; and 'abuse of dominant position within the common market'.,,2 he was thereby making two points. firstly breach of community law was tortious "of the school of law, university of buckingham. 1. in brtv. sabam and others [1974] e.c.r. 313; [1974] 2 c.m.l.r. 238. note that denning's expression "put into english", that judgment shows ... 2. application des gaz v. falks veritas [1974] 3 all e.r. 51, 58. his certainty disappeared in the court of appeal in garden cottage foods v. milk marketing board [1982] 2 c.m.l.r. 584 43 the denning law journal conduct and secondly it was tortious by virtue of community law rather than by a virtue of s.2(1) of the european communities act 1972. as regards the first point and with reference to articles 85 and 86 lord denning's analysiswas upheld by a majority of the house of lords in garden cottage foods ltd. v. milk marketing board.3 the second point was decisively rejected by the house of lords in that case and by oliver l. j. in bourgoin s. a. v. ministry of agriculture fisheries and food.4 the earliest appearance of an enforceable community right in an english court was as a negative right or as "eurodefence" as it is more colloquially called, in which it was not strictly necessary for the court to consider the nature of the right.5 a eurodefence can take a number of forms. it can arise in a criminal prosecution in which the defendant whilst admitting the facts denies the offence on the basis of the incompatibility of the offence with the eec treaty.6 in another form the defendant resists the issue of an injunction on the grounds that the injunction would amount to a measure of equivalent effect to a quantitative restriction prohibited by the treaty.7 in a third form the defendant relies on article 85(2) to allege that the contract, the breach of which is the cause of action, is void. in another form the defendant invokes the maxim ex turpi causa non oritur aaio to allege that the plaintiff is seeking, by means of his claim, to carry out conduct prohibited by article 85 or 86.8 in garden cottage foods v. milk marketing board9 the house of lords for the first time had to consider whether articles 85 and 86 gave an aggrieved party a claim in damages rather than simply a claim to an injunction to restrain the alleged breach of article 86. it decided that it did.1o as regards rights derived from other articles of the treaty and regulations which had been invoked against the government, they have been protected hitherto either by inter partes declaratory 3. [1984] a.c. 130; [1983] 3 c.m.l.r. 43. see further forrester, [1984] g.m.l. rev. 11 and banks [1984] em.l. rev 669. 4. [1986] i c.m.l.r. 267 (ca), at p.295. 5. supra n.2. 6. see for example r v. tymen [1981] e.c.r 3079, at pp.3094 and 3101. in that case the advocate-general considered that where tymen was raising the defence that he could not be convicted of the offence charged under the united kingdom sea fishing order because the united kingdom no longer had power to regulate fishing at all, he was raising an issue of the direct applicability of community law rather than the direct effects doctrine. he was not enforcing a "right" to fish in united kingdom waters but was denying the applicability of a united kingdom statutory instrument. if this is an example of the application of the doctrine of direct applicability it is difficult to see why any "eurodefence" should ever raise an issue of direct effect. "where criminal proceedings are brought by virtue of a national measure which is held to be contrary to community law a conviction in those proceedings is also incompatible with that law," was what the court held. the court declined to consider whether "rights" were conferred on tymen. 7. industrie dimsten groep v. beele [19821 e.c.r. 707, at p.716. 8. supra, n.2. 9. [1984] a.c. 130. 10. it left the issue to the trial judge whilst making it clear that in its view damages were available; see an bord bainne co-operative v. milk marketing board [1984] 2 c.m.l.r. 584 (c.a.). 44 enforceable community rights and natural remedies relief,11 by originating summons,12 or more frequently by an application for judicial review, 13or incidentally in the course of proceedings. 14in none of these cases has it proved necessary to consider whether it was a tort to infringe a community provision. where the treaty, regulation, directive or decision is invoked to explain or widen a right granted under municipal law it may not be necessary to consider the nature of the right or the category into which it falls. for example, in the sex discrimination cases the system of remedies in the industrial tr~bunals had been instituted before the united kingdom joined the eec so that it was relatively easy for the tribunals to read the community provisions along with the domestic provisions without posing the question of what category the community rights fell into. the same applies to national insurance cases. the issue would have had to be resolved only in the absence of an appropriate domestic procedure. for the first time in bourgoin v. ma.f.f. the issue rose as to whether it was a tort for the government to break article 30 of the treaty. this issue will arise whenever the subject is aggrieved and suffers direct damage because of a breach by the state of its obligations under the treaty or subordinate legislation. it could conceivably arise where the state, in breach of its obligations under a directive, fails to confer a right on one subject which that subject was intended to be able to enforce against another subject. there can be little doubt that in such a situation no right is conferred against the other subject. 15 in bourgoin the majority of the court of appeal held that a breach by a member state of article 30 of the treaty was not a breach of statutory duty sounding in damages, because under english domestic law the crown was not liable in damages for the wrongful exercise of its legislative powers in the absence of malice and eec law had not created new causes of action in private law against the state. in his dissenting judgment oliver l. j. held that the breach by the ministry of agriculture fisheries and food of its obligations u:lder article 30 was a breach of statutory duty sounding in damages. all three judges were agreed that the plaintiff had a cause of action against the crown for the tort of misfeasance in a public office which wuuld require the plaintiff to prove, at the very least, that the minister intended to protect the domestic producer and to damage the plaintiff. leave to appeal to the house of lords was granted.'6 this article advances the proposition that a breach of a directly effective provision of community law by a member state is a wrong under community law 11. ruyal scholten-honig v. intervention board [1978] e.c.r. 2037; an bord bainne v. milk marketillg board [1984] 1 c.m.l.r. 519. 12. macmahon v. department of education of science and others [1983] 1 ch. 227. 13. r v. ilea, ex parte hinde and others [1985] 1 c.m.l.r. 716; r v. secretary of state for home department, ex parte salltillo [1981] qb. 778; r v. auorney-general, ex parte i.e.!. [1987] 1 c.m.l.r. 72. 14. schorsch meier v. hennin [1975] qb. 416. 15. marshall v. southamptoll and south west area health authority [1986] 2 w.l.r. 780. 16. the government apparently agreed a seven figure sum by way of settlement of the claim so that the court of appeal judgment is now final. see [1987] i.c.m.l.r. 169; h.c. 1986 c.116. 45 the denning law journal and by virtue of community law an aggrieved person has a right to compensation to put him into the position he would have been in, had the wrong not been committed. this right derives from a combination of the article, the breach of which is the substantive cause of the grievance, and article 5 of the treaty which, it is argued, imposes an obligation on the national courts to award damages where these are appropriate. although a national court may continue to have a judicial discretion as to whether to grant an injunction or similar order, or to review measures for the purpose of annulling them and to order restitution as a consequence of the annulment, it must, at the very least, place the person to whom a right is granted into the position he would have been in had the right not been infringed.17 this article suggests that there is a greater common substantive content to the doctrine of direct effect than that suggested by the majority in bourgoin. it is only as regards procedure that the national legal system is to some extent autonomous. the doctrine of direct effect in european community law the facts of van cend en loos v. nederlandse administratie det belastingenl8 are well known. on 1january 1958, the date on which the eec treaty entered into force, a particular product was classified under heading 279-a-2 of the benelux customs tariff and was subject to an ad valorem duty of3%. the structure of that tariff had come about by virtue of the customs convention of 5 september 1944 between the benelux countries which entered into force in 1947. by a protocol concluded between the benelux countries on 25 july 1958, ratified in the netherlands by the law of 16 december 1959, the benelux countries went over to the "brussels nomenclature" a standard system of customs classification adopted by the customs co-operation council already used in the eec treaty and which was later to become the basis for the common customs tariff of the eec, the common agricultural policy and for trade statistics in general. the new tariff entered into force in all benelux countries on 1 march 1960. on the date when it entered into force the old 1947 tariff was abolished. the old heading 279-a-2 was replaced by a new heading 39.01 but the heading was further subdivided with two different rates of duty. 19 the result it appears was that the particular product was liable to an ad valorem duty of 8% whereas previously it had been subject to a duty of 3%. 17. the orthodox understanding of the judgments of the european court on direct effect is that provided some remedy is available to protect an enforceable community right the classification of the right and the extent of the remedy are matters for national law to determine according to its existing system of remedies. see, for example, john bridge "procedural aspects of enforcement of e.c. law", [1984] e.l. rev. 28. in that article, professor bridge urges the adoption of community legislation to mesh the right with the remedy in a more uniform manner: in effect fusion comparable to the fusion of law and equity. in the present author's view many further years of struggle by the national courts and the european coui1 are necessary before legislative intervention must be resorted to. at the present stage of development legislation might well be regressive. 18. [1963] e.c.r. 1. 19. the four figure heading can be further subdivided ad infinitum by each state which adopts the nomenclature. 46 enforceable community rights and natural remedies the importer sought the annulment of the decision of the dutch customs and excise charging it a duty of 8%. it did not, let it be stressed, seek anything as far fetched as the annulment of the benelux tariff or of the law ratifying that tariff. if it had put forward such an argument the customs and excise tribunal, before which the dispute was brought, would undoubtedly have declared itself incompetent and would have dismissed the importers appeal as inadmissible and conceivably the doctrine of direct effect would never have entered the legal world. instead it asked the tariefcommissie to quash the individual customs decision, a task well within that tribunal's ordinary statutory competence. the ground for its appeal was that "all the customs duties applied by member states in their trade with each other were bound on i january 1958" by virtue of article 12 of the eec treaty. the concept of "bound" duties derives from the general agreement on tariffs and trade.2° a national court must "set aside the application of customs duties introduced or increased in breach of its provisions". the revolutionary nature of the importer's argument was concealed behind its use of conventional tariff concepts. although article 12 provides quite clearly that "member states shall refrain from increasing the customs duties which they already apply in their trade with each other,,]8 it was entirely silent on any legal consequences as regards importers of the breach of that article. the dutch court referred two questions to the european court, the first of which was to have a profound impact on community law. it asked "whether article 12 of the eec treaty has direct application within the territory of a member state, in other words, whether nationals of such a state can, on the basis of the article in question, lay claim to individual rights which the courts must protect.,,2\ in its observations before the court the dutch government drew the now well recognized distinction between (a) the internal effect of article 12 and (b) its direct effect.22 internal effect depended on the intentions of the contracting parties. was the treaty intended to be law creating? this is the concept which we have come to describe as "direct applicability".23 even if the obligation on the netherlands was an obligation to be recognized as part of municipal law (which the netherlands denied) it would not necessarily have direct effect, in other words confer "subjective rights". this distinction is clearly known to all legal systems. for example, an act of parliament in the united kingdom is clearly law creating: it has an "internal effect" in the terminology of the netherlands government. but there is a wholly distinct question as to whether a provision in an act of parliament 20. article ii of the gatt in conjunction with the schedule of concessions; see ammillslraziolle delle fillallce delio sialo v. spi alld sami [1983] e.c.r. 801. in this judgment the court explains the system of gatt bindings. note that the far more precise provisions of the gait are found 1101 to confer rights on individuals. 21. emphasis added. 22. j. a. winter, 9 cm.l. rev. 1927. 23. in the early days of the development of the community doctrine the expression "self-executing" was often used, particularly by roemer, advocate-general. 47 the denning law journal creates individual rights. a power and duty conferred and imposed on a statutory body by an act of parliament is of course law. it can be enforced in the united kingdom by the appropriate minister or the attorney-general. it does not follow, however, that it can be enforced by an individual; still less that it can give rise to a private right in damages. the duty imposed on the netherlands by article 12, even if recognized as part of the netherlands law, would not necessarily mean that van gend en loos could obtain the annulment of its customs assessments or restitution of over-paid duty. as regards the second aspect the dutch government recognized what a positive answer would mean. "it would put in issue the responsibility of states by means of a procedure which was not designed for this purpose." as early as 1962, therefore, the dutch government realised that what was really at issue was whether breach of article 12 was a wrong for which a state would be liable. the belgian government approached the second issue of the effect of article 12 within the state within more traditional categories. the question for the court was whether any "introduction of a new customs duty or any increase in an existing duty is automatically without effect or is absolutely void.,,24 this approach, if an affirmative answer were given, would involve the startling proposition that a customs and excise tribunal, set up under a statute to ensure that the customs and excise correctly applied the tariff, also had jurisdiction by virtue of some implied rule of community law to declare either an international treaty, the benelux protocol, or the law ratifying that treaty in the netherlands at least in part "absolutely void". for the german government which also intervened the matter was simple. the obligation to pay customs duties did not at that stage derive from eec law but from municipal law. article 12 laid down a duty on each state which was owed to other member states. individual taxpayers only derived rights and duties under community law from regulations laid down by the community institutions. in its judgment the european court in the first place held that "community law had an authority which could be invoked by their nationals, before courts and tribunals." in other words it had an "internal effect", to use the dutch phrase, and was "directly applicable". on the question of the direct effect of the provision a taxpayer was entitled "to plead infringements of the obligations" before a national court. it was an additional "guarantee" against an infringement of article 12. what article 12 did was to provide "direct legal protection" of the individual rights of their nationals. it gave an individual the right to prevent "the implementation of a national decision taken contrary to the provisions of the treaty." elsewhere in the judgment the court stated that the treaty "conferred upon [individuals] rights which become part of their legal heritage.,,25 24. [1963] e.c.r. i, at p.8. 25. ibid, at p.13. 48 enforceable community rights and natural remedies the court thus used rather general language in its explanation of the "direct effect" of article 12. it left it to each national system to supply a name to this private right or to place it in the appropriate category under national law. but the court did indicate the essential characteristic of the right. it was a right as opposed to a public interest; a private right that the taxpayer could choose to use or not; it was designed to be a "guarantee" of treaty observance; the national court had to give "direct legal protection to the right" so that the guarantee remained intact; it had to be "effective". for the solution of the instant case the court's judgment was an adequate ruling for the national judge. since the customs and excise tribunal had become involved before any damage had occurred as a result of the netherlands breach of its obligations, all that the tribunal had to do was to prevent "implementation" of the national decision taken contrary to the provisions of the treaty; in other words to annul the decision of the customs authority imposing a tax of 8% ad valorem. the problem would then be shifted to the tax authority to decide what it could lawfully do. it could not presumably issue a new customs assessment imposing a 3 % duty on the product because that rate no longer lawfully existed: it had been lawfully abolished by an international treaty, the benelux protocol, ratified by an act of the netherlands parliament. if it did issue a decision taxing the product at 3% that decision could not be challenged under community law but could presumably be attacked under national law in that 3 % was not the lawful duty under tariff heading 39.01-a-l of the benelux tariff. neither the national court nor the taxpayer needed to consider further under what category of domestic right the community right fell. that was a problem left to the customs and excise. the immediate explanation for the private right that the european court had found implicit in article 12 of the treaty was that it was a right to be treated as if the infringement had not occurred, i.e. a right to be put back into the position that the importer would have been in if the netherlands had not infringed the treaty. whether this would have authorized the national court or the customs and excise to reduce the liability to 3% rather than simply quash it in its entirety was and remains unclear. put in terms more familiar to the common law world there would thus be two distinct obligations contained in article 12: an express duty owed to other member states not to enact laws which increased duties and a second, implied duty owed to taxpayers not to tax them at a higher rate than the rate applicable on the date the treaty entered into force. the breach of the former duty would be sanctioned by a default action under article 169; the latter by a private action in the national court. the distinction between the two duties is well illustrated by a number of cases.26 in one case, for example, in a default action the commission had obtained a declaration that france's advertising code for alcohols infringed article 30 of the treaty.25 when a number of producers and importers of 26. see, in particular, commissioll v. pra/lce (frellch man'time code) [1974] e.er. 359; procurellr de la repllbliqlle v. waterkryll [1982] e.er. 4337; commissioll v. italy [1970] e.er. 25, at p.34. 49 the denning law journal alcohols were subsequently prosecuted for infringement of the code they alleged that the particular provisions of the code declared incompatible with the treaty could not be applied to them. on a reference to the european court the court held that only certain of the defendants could lay claim to individual rights under the treaty, namely those who had imported goods from other member states. the legislation itself was not void. although all defendants were charged under the same provision of the code the code only infringed the private rights of some of them. it was not the enforceability of the code that was in issue but the enforceability of a private right. conversely it is conceivable that a state may break a duty owed to an individual trader without at the same time breaking its duty to other member states and the community institutions. in commission v. italy27 italy was alleged to have defaulted in its obligations under a council regulation by failing to pay export refunds promptly. the regulations laid down a complete system for the payment of refunds with no or almost no powers reserved to the member state save to execute the regulation. the state did have to get the necessary funds voted by parliament for although the ultimate bill would be borne by the community the italian ministry had to have cash in hand. italy alleged that if there was delay in payment of sums due to an importer that was the fault or responsibility of the officials concerned. an exporter who was aggrieved by such a delay could sue in the italian courts for payment and damages ["sole responsibility of the official who is liable under national law"] but there was no breach of a duty owed to the community by the member state itself which had not taken any measures that conflicted with community law. the court held that "the existence of remedies available through the national courts cannot in any way prejudice the making of the application referred to in article 169 since the two procedures have different objeaives and ejfects.,,28 the object of the action under article 169 is to review the conduct of the member state. the object of the action in the national court is to redress the grievance of an individual, usually a trading company. neither the one nor the other, however, has the object or effect of annulment of national legislation. it is in all cases for the competent national authority, the legislature, or the executive or, in some constitutions, the constitutional court to annul or rescind the offending norm.29 this was the point of the distinction demonstrated in the second simmenthal case 30 betwen the competence of the lower court and the competence of the italian constitutional court. the italian constitutional court had recognized the supremacy of community law over state law. at that time it also maintained the 27. commissioll v. italy [1970] e.c.r. 25. 28. ibid. 29. waterkeyll case [1982] e.c.r. 4337. 30. amministra.ziolle delle finalize dej/o stato v. simmenthal [1978] e.c.r. 629. 50 enforceable community rights and natural remedies principle that a lower court was obliged under the italian constitution to give full effect to national law unless and until the constitutional court had declared the italian statute void for breach of community law.31the first instance judge in effect asked the european court to rule whether he should follow the judgments of the constitutional court and refer the constitutionality of an italian law, which had entered into force after the eec treaty, to the constitutional court even though the european court, in the first simmenthal case,32had held the veterinary inspections and the charges for such inspections were incompatible with the treaty and the object of the case was simply the repayment of the fees illegally charged. the italian government, in its argument before the european court urged the european court to rethink the doctrine of direct effect. "if the national court is acknowledged to have the power not to apply a national law which is incompatible with the community law that is tantamount to guaranteeing the application of the community legal rule only in the case actually before the court and protecting the specific right claimed in that case; but the national provision remains in force and is in fact exclusively applicable if there has not been a submission to the court that there may have been a breach of the rights conferred upon individuals by community rules.,,33 in the italian government's view the solution adopted by the constitutional court consisting in what might be compared with a certiorari to quash the offending legislation would be clearly more effective and significant than the "private rights" analysis adopted by the european court. there was no conflict with the essential objective of the eec treaty since the national court would not apply or give effect to a national law which was incompatible with treaty; it would simply adjourn pending the repeal of the offending legislation or the declaration of the offending legislation's unconstitutionality by the constitutional court. such a declaration would remove the legislation ab initio so that, in the instant case the importer would get its money back. in its judgment the european court held that every national court, in a case within its jurisdiction, had to apply community law in its entirety and protect rights which the latter conferred on individuals: "a national court which is called upon, within the limits of its jurisdiction, to apply provisions of community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provisions by legislative or other constitutional means.,,34 31.judgment no. 183,27 december 1973, corte constitutionale;judgment no. 232, 30 october 1975, corte constitutionale; judgment no. 205, 28 july 1976, corte constitutionalej judgment no. 206, 28 july 1976, corte constitutionale. 32. amministra.zione v. simmenthal [1976] e.c.r. 1871. 33. emphasis added. 34. [19781e.c.r. 629, at p.644. 51 the denning law journal the court thus made a distinction between 'the private law remedy the enforcement of a community right in preference to the public law "remedy" of quashing or setting aside the offending national law. not every remedy under national law is therefore, as a matter of community law, appropriate to uphold community rights. the cases based upon article 95 and in particular the restitution cases show both the national court and the european court struggling to mesh together the right with the remedy into a coherent doctrine of direct effect. in molkerei-zentrale westfalen v. hauptzollamt paderborn35 a dispute that had been going on for a number of years reached the bundesfinanzhof. germany apparently imposed a tax on imported milk powder whereas neither domestic milk powder nor whole milk was subject to tax. in an earlier case36 the european court had held that article 95 and possibly even article 97 were capable of conferring right on individuals which national courts were obliged to protect. the bundesfinanzhofin the present case asked the court to look again at the issue. in its judgement the bundesjinanzhof pointed out that under the doctrine "the national court must place this individual in the same position as if the state in question had already fulfilled its obligations." the bundesfinanzhof pointed out that a tax court was being asked "to anticipate, by thousands of separate decisions, the action of the legislature ... or to make good its failure to act." this was beyond the powers of a tax court. for the commission it was argued that "it may happen that individuals can have themselves placed in the same position as if national law had already been amended, whereas the sole result which the commission or the other member states may bring about is that the state which is found to have failed to fulfil its obligations shall take the necessary measures to comply with the judgment of the court of justice." in its judgment the court stressed that "the complexity of given situations in a state cannot alter the legal nature of a directly applicable community provision, especially as the community rule must be applied with the same force in all member states." it should be noted that the court does not mention uniformity of interpretation but uniformity of legal force. "furthermore," as the court said, "article 95 does not restrict the powers of the national courts to apply, from among the various procedures available under national law, those which are appropriate for the purpose of protecting individual rights conferred by community law. in particular when internal taxation is incompatible with the first paragraph of article 95 only beyond a certain amount, it is for the national court to decide, according to the rules of its national law, whether this illegalityaffects the taxation as a whole or only so much of it as exceeds that amount." the origin of the dispute was not a claim to damages but an objection to the payment of the tax. as in van gend en loos it was an action to quash the tax 35. [19681 e.er. 143. 36. lutlicke v. hauptzollamt saar/ou/s [1966] e.er. 205. 52 enforceable community rights and natural remedies assessment. however in the court's judgement it appears to accept the "as if' type analysis.37 what the court was stressing in its judgment was that the national court had to remove the protective margin. so long as the taxpayer was treated by the court as if the obligation had not been broken how that was achieved was a matter for the national court. in hans just v. danish ministry for fiscal affairs38 the plaintiff taxpayer was a producer and importer of wines and spirits in denmark. it was liable to pay excise duties to the danish treasury on its total sales of spirits. it argued, in a test case, that during the month of june 1978 it had overpaid excise duties. it had paid the tax under protest claiming that the rate of tax was incompatible with article 95 of the eec treaty. it sought repayment of that sum and reserved the right to claim all the tax it had overpaid between the date denmark joined the community and the date of the action. the danish court asked for a ruling on a number of points including whether article 95 could be relied upon by danish producers or only by importers. additionally, in question 4 the danish court asked if community law contained "any rules of significance for deciding the question of the repayment of taxes, payment of which was contrary to article 95?" was it of any relevance that "a trader can establish that he has suffered loss"? in its arguments before the court for the first time the tortious ideas behind the doctrine of direct effect began to emerge. the plaintiff claimed that the increase in the tax on imported spirits had resulted "not only in a serious reduction in the profits of hans just but also compelled it to reduce staff." under danish law, however, it appears that monies paid over as a result of a mistake of law were not recoverable. the taxpayer in effect argued that the court should recognise that the doctrine of direct effect either created a community right to restitution or a community right to damages which national law could not lawfully abridge. the court founded the duty of national courts to find the appropriate remedy, not on the doctrine of direct effect alone, but on the duty of co-operation in article 5 of the treaty. that article provides that member states shall take all appropriate measures ... whether general or particular to ensure fulfilment of the obligations arising out of this treaty." the european court has stressed that the national courts are the member states as regard judicial remedies. although article 5 is not in itself "directly effective" it is, when coupled with the right conferring provision; community rights therefore are only in part implied. the fourth question of the danish judge was therefore a question as to whether the remedies available under danish law whether the category into which the right should fall were "appropriate measures" within the meaning of article 5 of the treaty. the court answered that: 37. the expression "does not restrict the powers of the national court" is specifically an answer to the bundefinanzhofs assertion that a tax court could only quash an assessment rather than alter or amend an assessment. 38. [1980] e.c.r. 501. 53 the denning law journal "in the absence of community rules concerning the refunding of national charges which had been unlawfully levied, it is for the domestic legal system of each member state to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which subjects derive from the direct effect of community law, it being understood that such conditions cannot be less favourable than those relating to similiar actions of a domestic nature and that under no circumstances may they be so adapted as to make it impossible in practice to exercise the rights which the national courts are bound to protect." "the protection of rights guaranteed in the matter by community law does not require an order for the recovery of charges improperly made to be granted in conditions which would involve the unjust enrichment of those entitled." the court went on to say that there was nothing in community law to prevent a national court from taking into account "the damage which an importer may have suffered because the effect of the discriminatory or protective tax provisions was to restrict the volume of imports from other member states.,,39 at first sight this looks as though the european court is merely saying that the national legal system can provide whatever remedies it considers appropriate. the categorization of the community right as a right to compensation is a matter solely for national law to determine. the important point in the development of the concept of direct effect appears to be the recognition that a claim to damages may be an "appropriate measure" within the meaning of article 5 of the treaty, the "normal" remedy, according to both the advocate-general and the court being the restitution of the overpaid taxes. "proof of damage or impoverishment as a precondition for bringing proceedings is known in the legal systems of all the member states and in the community legal system itself as an expression of the general principle of natural justice.,,4{) it is evident that in the eyes of the court and the advocate-general both damages in tort and repayment of sums overpaid were conceptually based on the same principle of unjust impoverishment and were the natural consequences of a community right's infringement. a slight shift in emphasis away from mere reference to national remedies was seen in amministrazione delle. finanze della stato v. san giorgio spa,41 which concerned the perennial problem ofitalian frontier inspection charges. the italian constitutional court had declared a law invalid as incompatible with eec law. on the basis of that decision42the plaintiff brought an action for the recovery of sums which it had been obliged to pay between 1974 and 1977 as health inspection 39. ibid, at p.523. 40. ibid, at p.532 . 41. [1983] e.c.r. 3595. 42. no. 163, corte constitutionale, 19 december 1977. 54 enforceable community rights and natural remedies charges. after the action had started, the government issued a new decree which expressly provided that certain taxes on goods which had been overpaid could not be recovered when the taxpayer had passed the tax on in any waywhatsoever to its customers. there was a presumption of passing on if the property in the taxed goods had been transferred and there was a further presumption that the property had been so transferred. this was a rather ingenious attempt to mitigate the consequences of a number of european court rulings declaring numerous italian indirect taxes incompatible with the treaty. in his opinion mancini, advocate-general, explained the rationale for excluding recourse to the idea of passing-on save in exceptional circumstances: "how is it possible to prevent the member states in the certainty that they will not have to refund the amounts unduly levied from continuing to levy charges having an effect equivalent to customs duties notwithstanding the community prohibitions? who could prevent them from so doing if entrepreneurs were deprived of any judicial means of stopping such a practice ... " the court held that "the repayment of charges levied by a member state contrary to community law is a consequence of and an adjunct to, the rights conferred on individuals by the community provisions prohibiting the charges." it added that " ... the requirement of non discrimination laid down by the court cannot be construed as justifying legislative measures intended to render any repayment of charges levied contrary to community law virtually impossible, even if the same treatment is extended to taxpayers who have similar claims arising from an infringement of national tax law." once again both the court and the advocate-general saw repayment of the overpaid taxes as the natural consequence of breach of a community right. it may however be questioned whether repayment really is the appropriate remedy, at least in the case of article 95. for example, should an importer of wine into the united kingdom reclaim excise overpaid in relation to beer contrary to article 95?i3 that claim should as a matter of "natural justice" be denied on the basis that the tax has been passed on and, since many wine importers in the united kingdom are part of brewing and retail conglomerates, the importers may well have enjoyed the profit from increased beer sales. if such an importer were to recover the overpaid tax, retain the benefit of the increased sales of beer and enjoy the services provided by the state but paid for by the product of the tax, there would, by any standards, be an unjust enrichment. those who have suffered by reason of the discriminatory tax are the wine producers in the regions that would typicallysupply the british market. it is to them that a remedy, if at all, should be given. it is they who were intended to benefit from article 95. as regards frontier charges most have concerned trivial sums of money. as the court has pointed out, the main effect of frontier charges is to delay goods at the frontier for which compensation 43. commission v. united kingdom [1983] e.c.r. 2315. 55 the denning law journal might well be a more appropriate remedy instead of or in addition to restitution. it has been suggested44 that the solution to the problem of unjust enrichment is for a state to introduce an extremely short period of limitation for bringing a restitution action. if such a period applied to similar claims against the government under domestic law no criticism could be made under eec law. it may, however, be questioned whether short periods of limitation would not in fact act as an arbitrary filter to justified claims and an arbitrary discrimination against aggrieved persons in other member states.45 there are a number of cases in which the claims in the national court have been unambiguously based on a claim in damages of which the most notable is defrenne v. sabena.46 a belgian royal decree of 1967, intended to implement the equal pay principle in article 119, had simply provided a right of action to women to receive equal pay: "any woman worker may institute proceedings before the relevant court for the application of the principle that men and women should receive equal pay for equal work." in march 1968 the plaintiff instituted proceedings before the tribunal de travail the industrial tribunal claiming damages for the injury she had suffered between 15 february 1963 and 1 february 1966 by being paid less than a male steward. the reason why her claim stretched back only to 15 february 1963 was that before that date her claim was statute barred under municipal law. on 1 february 1966 at the other end sabena had unilaterally decided to pay stewards and stewardesses at the same rate. it is not immediately clear from the report of the case exacdy what the legal form of miss defrenne's claim was despite the reference to the royal decree. this was in part due to the somewhat strange phenomenon that belgium declined to present observations to the court and sabena only appeared at the oral hearing. that the claim was based exclusively on the direct effect of article 119 seems clear. none of the parties who intervened discussed the issue of the remedy. it seems probable, however, that the remedy was tortious in nature (i.e. damages for an injury) rather than contractual (that her contract had been altered by article 119) or restitutionary (that sabena had enjoyed an unjust enrichment). clearly defrenne was not seeking annulment or review of her contract but compensation amounting to arrears of pay. she was inevitably, if not expressly, arguing that article 119 of the treaty imposed a duty on sabena from 1962 onwards not to discriminate against her, a breach of that duty by sabena and damages. not surprisingly the judgment of the court concentrates on the right conferred by the community on the woman to the exclusion of the rather more dubious aspect of a duty imposed on sabena. the right is conferred "on any individual who has an interest in the performance 44. mancini, advocate-general in the san giorgio case [19831 e.c.r. at p.3632. 45. see t. c. hartley, "the effect in national law of judgments of the european court", [1980] e. l. rro.3666. 46. [1976] e.c.r. 455. 56 enforceable community rights and natural remedies of the duties thus laid down." although the duty is expressly imposed on member states [no. 32] there appears to be an implied duty imposed on employers. in the course of the judgment the court expressly recognized that "in view of the large number of people concerned such claims, which undertakings could not have foreseen, might seriously affect the financial situation of such undertakings and even drive some of them to bankruptcy." the companies had been led "to continue with practices which were contrary to article 119, although not yet prohibited under their national law." the direct effect, as an exceptional matter, could not be relied on as regards the past except as regards workers who had "already brought legal proceedings or made an equivalent claim." it appears, therefore, that sabena was subject to a duty which, the court concedes, could not have been foreseen. it was liable for practices contrary to article 119 for which it would normally be liable in damages to any person "who has an interest in the performance of the duty." there is no doubt that in the viewof the court the direct effect of article 119 as a matter of community law gave rise to a claim in damages from the moment the breach occurred. it was only on the grounds of legal certainty that the court suspended any claims for the past. but the mere existence of the power of the court to limit the consequences of a breach of article 119 for the past would seem to confirm that the claim to money was directly conferred by community law. the european court could hardly have suspended the operation of a purely national remedy. the duty in the case of articles 119, 13 and 95 is a duty to pay and a duty not to tax respectively. the problem of damages becomes central and unavoidable when the question is as to the effect of the breach of a provision which requires a state to do something or to refrain from doing something other than paying or taxing. for example, if a state prevents the import of a product or destroys a consignment of a product for spurious health reasons, contrary to article 30 of the treaty, the judicial review of the ban or the destruction will be of limited comfort to the importer who may have lost a great deal of money or even have been bankrupted while the ban lasted. in those states in which no interim relief is available against the government it might well be some time before a ban is lifted, even if the aggrieved trader acted with all possible speed. if, for example, a state, in breach of community law, subsidizes an exporter so that that exporter manages to drive a competitor off the market, a judicial review of the decision to subsidize, even supposing it were practicable, would not "guarantee" that community law was complied with. in salgoil v. itaty47 an italian company had been refused a licence to import fullers earth into italy from another member state of the eec. assuming that the refusal of an import licence was wrongful the normal remedy under italian law 47. [1968] e.c.r. 453. 57 the denning law journal would have been an action in the administrative court, in effect for a judicial review of the decision. it seems that in an administrative court in italy, as in judicial review proceedings in england, the applicant relies on a legitimate interest rather than a right, stria(j sensu, which must be balanced against the public interests of the state. instead of seeking a public law remedy the plaintiff started civilproceedings for damages to compensate it for the loss it had suffered by being forced to break its contract with its suppliers. the court at first instance declined jurisdiction on the grounds that it was a public law matter: no right of salgoil had been infringed but rather a legitimate interest that ought to have been defended in the administrative courts. salgoil appealed to the corte d'appello which on this issue of jurisdiction referred a rather long and complicated question to the european court designed to discover the true classification under domestic law of an enforceable community right. in its reply the european court appeared to stress that it was an absolute right that was conferred by community law requiring direct and immediate protection by the national court without reference to the public interest of the state. it went on to say that "it is for the legal system of each member state to decide which court has jurisdiction and,jor this purpose to classify those rights with reference to the criteria of nationallaw."48 the european court was not prepared to get involved in national jurisdiction between the civil courts and the administrative courts in particular as the division between jurisdictions varies from system to system, ranging from the complete separation of france with parallel remedies in both systems to the distinction based on remedies of italy and to some extent the united kingdom. this judgment does not mean however that the extent of the remedy granted for breach of a community right is a matter for each state to determine free of community interference; there must be direct and immediate protection of the rights. it is nevertheless striking that in the salgoil case the court seemed to retreat from its earlier stress on the private, subjective nature, of the right which entered the "legal heritage" of the individual concerned. in russo v.alma the court examined-more closelya claim based on damages for breach of community law.49 in 1973 the world price of a range of community agricultural commodities went above the eec target price resulting in a shortage and a domestic price rise. in order to subsidize consumers the italian government purchased durum wheat on the world market and sold it on the domestic market below cost but nevertheless around the target price. this had the effect of bringing the domestic price down to just above the target price. an italian producer of wheat claimed damages against the branch of the ministry of agriculture concerned representing the difference between the price that he had received for his wheat and the price he would have received had the italian state not carried out its operation. on a reference to the european court as to whether the producer was entitled to damages in such a situation and whether the producer should obtain complete 48. emphasis supplied. 49. russo v. a.i.ma. [1976] e.c.r. 45. 58 enforceable community rights and natural remedies compensation, the commission argued that not every breach of community law gave rise to a claim in damages: "a right to damages should arise only to the extent that a provision of community law was intended to protect the particular interests of individuals ... any other solution would involve a serious risk of differences in the application and scope of community law depending on the legal system within which it is invoked."so with regard to the extent of protection, i.e. whether there was any damage and whether it was compensable in money and the extent to which it should be compensated, that was a matter for national law to determine in accordance with the principles of appropriateness and effectiveness. the advocate-general, mr reischl, was even more clear: "there is a principle of community law according to which the authorities and in particular the courts of member states are under a duty to safeguard the interests of individuals affected by any breach of community law, which establish individual rights, by giving these persons direct and immediate protection ... in such circumstances when the other prerequisites under the particular national law are present, a claim for damages may lie against the member state which has not fulfilled its obligations under the treaty ... the liability of a member state for the consequences flowing from an infringement of community law also arises out of the obligation to provide effective protection of these rights provided that the other prerequisites under national law are present."sl the court held that under community rules, "an individual may claim that he should not be prevented from obtaining a price approximating to the target price and in any event not lower than the intervention price." an individual farmer may not claim that he has suffered damage under community law if the price which he has actually obtained on the market exceeds the target price." the court concluded: "if an individual producer has suffered damage as a result of the intervention of a member state in violation of community law it will be for the state, as regards the injured party, to take the consequences upon itself in the context of the provisions of national law relating to the liability of the state." when the court refers to "the context of the provisions of national law on the liability of the state" it is not thereby authorizing a system of national law to deny all liability of the state but rather placing the community right in the context of such liability. it is perfectly conceivable that \:he state breaks its obligations under community law without causing any loss to an individual recognisable under community law. indeed such appears to have been the case here. community law 50. the commision was inviting the court to consider the doctrine of direct effect as being the same doctrine as that under which claims to damages against the community were brought under article 215 of the treaty. cf. the assimilation of these two doctrines in bourgoin by the majority of the court of appeal but for a rather different purpose. 51. [1976] e.c.r., at p.62. 59 the denning law journal did not guarantee a particular level of profit but merely that the producer would obtain at least the intervention price. since the producer here had managed to obtain a price above the target price there had been no breach of the producers rights under community law. if the italian state had caused the market price to fall below the target price, or conceivably only below the intervention price, the producer would have been entitled to damages provided he could prove the casual link. in other words the court, as a matter of community law establishes the extent of the right guaranteed under community law. damages are available only to the extent that the community guarantee has been infringed within the context of state liability. some support for the argument that state law can exclude a claim for compensation against the state for breach of a community provision causing damage to an individual is found in the judgment of the european court in the first of the "butter-buying cruises" cases.52 this case concerned the unlawful exemption from taxes and agricultural levies granted to passengers on such butter cruises. the actual object of the litigation was, in effect, for an order to force the german customs and excise to tax the passengers by a review of their exemption decision. in common law terms it was a public law type remedy that was sought rather than a claim for compensation for the loss caused by the illegal decision. one of the points that arose was as to the standing of the plaintiff grocery chain to bring the action. the grocery chain based their interest in bringing the proceedings on the trade that they alleged they had lost through the diversion of trade to the butter-buying cruises. at one time over 8,000 tonnes of such butter was sold annually on butter-buying cruises, a proportion of which must have been diverted from the plaintiffs shops. one question that arose was whether the various community provisions allegedly broken conferred rights on such a third party. there was no doubt that the regulations, directives and the treaty conferred rights on taxpayers against the customs and excise. it was less clear that they conferred rights on those who had suffered purely economic loss through the misapplication of community rules. according to the united kingdom which submitted observations to the court solely on this issue the plaintiff in the present case was usurping the role of the commission. it was seeking a remedy by private action to compel a member state to remedy its default generally, since no right had been directly conferred on the grocery chain by community law. whether it had any right to seek a judicial review or obtain some order or declaratory relief in these circumstances depended solely on national law. capotorti, advocate-general, in a very clear analysis of legal rules, stressed that the case did not concern damages but a public law remedy. he drew a distinction 52. rewe v. hauptzollamt kiel [1981] e.c.r. 1805. 60 enforceable community rights and natural remedies between a legal rule, a personal right and an interest in the application of the rule. a rule dealing with taxation on importation conferred personal rights on an importer and duties on the customs and excise. importers as a "class" might have an interest but no right until an individual transaction had taken place. this case raised the issue of whether other traders had an interest in the proper application of community law. no question of a right arose. the persons on whom rights were conferred by community law were a sufficiently defined class. those who might have an interest in the correct application of law were much more numerous. he rejected entirely the proposition that the doctrine of direct effect had created some kind of popular action so that anyone with an interest in the correct application of community law could seek a review of the application of community law by the state. but he went on to point out that if a person had a sufficient interest under domestic law to ask for judicial review there was nothing to stop his invoking community rules and thus indirectly ensuring that community law was complied with. the court appears to have followed the advocate-general's approach: "with regard to an action to compel ... [the customs and excise] ... to comply with obligations arising from community rules in a given legal situation in which that trader is not involved but is economically adversely affected by the failure to observe community law ... [community law]was not intended to create new remedies in the national courts to ensure the observance of community law other than those already laid down by national law. on the other hand the system of legal protection established by the treaty, as set out in article 177 in particular, implies that it must be possible for every type of action provided for by national law to be available for the purpose of ensuring observance of community provisions having direct effect, on the same conditions concerning the admissibility and procedure as would apply were it a question of ensuring observance of national law." if, therefore, the grocery chain had sufficient interest under german law to challenge a decision addressed to another taxpayer on the grounds of breach of german law, it would similarly have standing where the allegation was breach of community law. read in its context, therefore, nothing in the rewe case supports the proposition, advanced by the majority in the court of appeal in bourgoin that community law leaves a member state free to decide on its own liabilityin its own courts for breach of community law when faced with a claim by an individual whose rights as opposed to interests (or "public rights" as they are now rather inaptly called) have been affected. once the distinction outlined by capotorti, advocate-general, is understood the true reason for the court's refusal to interpret article 95 in the reference from the milan court in foglia v. n(jvello53 becomes apparent. in that case a wine 53. [1980] e.c.r. 745 (no.1) and more significantly foglia v. novello (no.2) [1981] e.c.r. 3045, at p.3065, nos. 5, 28 and 29. 61 the denning law journal merchant sued one of its customers for breach of contract. article 95 conferred no rights on a customer in a transaction with a wine merchant and therefore no question of national law supplying a remedy for breach of a community provision arose. as a matter of community law, article 95 conferred a right on a taxpayer against the relevant national taxation authority. it did not, and could not, as a matter of community law be relevant to the interpretation or application of an italian contract involving two italian subjects where not even a recognizable interest in the application of community law could be discerned. an interesting use of a claim for damages for a community wrong suffered by an eec subject at the hands of the state occured in pecastaing v. belgium. s4 in that case a french woman was refused a residence permit by the competent authority in belgium. instead of seeking to quash this decision in the administrative court (there was some doubt whether such a remedy was available in the circumstances of this case) she began an action by writ for damages to compensate her for the loss she had suffered arising from an improper administrative measure. at the same time she sought interlocutory relief in the form of a stay of execution of the decision that she leave the country. the case referred to the european court raised the issue of whether such interlocutory relief had to be available under directive 64/221 and no question was raised as to whether the infringement of her community right to reside in belgium was a wrong giving rise to a cause of action in damages. indeed, the plaintiff was primarily concerned to get the decision suspended and in effect reviewed by the civil courts, rather than to vindicate a claim in damages. furthermore she argued that member states "cannot have a choice between observing the law and paying damages by way of reparation for breach thereof. the state should be obliged to observe the rule of law." in most cases where an eec national is refused leave to enter or is deported contrary to eec law his prime concern will be to have the decision quashed so that a claim to damages would be merely ancillary. it is however possible to imagine the converse situation where the wrongful measure causes the loss of a job or contract without any particular interest in the aggrieved persons having the measure judicially reviewed; his interest is in compensation. to deny a state's obligation to compensate would, in these rare cases, not provide the subject of community law with an appropriate and effective remedy which will put him into the position he would have been in, if his right had not been infringed. conclusion the european court has reiterated the national court's duty to protect fully and immediately rights granted by community law. the essential ingredients of the community right have been gradually elucidated by the european court. it is a private right which belongs to the beneficiary, a right to be treated as if the treaty or subordinate community legislation had not been broken. that is the result to be 54. [1980] e.c.r. 691. 62 enforceable community rights and natural remedies achieved by the national court which nevertheless to some extent has a choice of form and methods. although procedure and forum must vary from system to system, article 5 of the treaty places a duty directly on courts to take all appropriate measures to ensure fulfilment of the obligations arising out of the eec treaty and subordinate legislation. although it is up to each national system to categorize a community right, to place it in its national context, this does not mean that the binding force of the right derives from national law or the national statute which transferred powers to the community. it is a gradual process of recognition on the part of both the european court and the national court of what type of right is involved. although there is frequent reference in the judgments of the european court to the analogous enforcement of rights under national law against the state, they are only imperfect analogies since both a state and a community citizen are equally subjects of community law. the peculiarities that derive from the relationship of sovereign and subject are not necessarily appropriate in this changed situation. in common law terms, it is a wrong for a state to infringe private rights for which the state is liable by analogy with the cause of action arising out of a breach of a public duty under a statute for which the crown also owes a duty to individual subjects. if liabilityshould ultimately need to be restricted on the basis that the doctrine of direct effect involves too great a liability for the state exchequer, it is then that community-wide legislation might need to be enacted for the same reasons which led the court to suspend the operation of article 119 in defrenne v. sabena. it is not for national law to abridge community rights, though to some extent this is a consequence or side effect of its general power to regulate judicial procedure which still remains a purely state power. 63 land development and community benefits professor victor moore* in 1992, the market leaders in the food retailing business j. sainsbury p.1.c. and tesco stores ltd. were each granted planning permission by plymouth city council, the local planning authority for the city, for the erection of a superstore on the city's outskirts. both permissions were dependent upon the companies entering into an agreement under section 106 of the town and country planning act 1990 (as amended) whereby each company covenanted to provide, or provide funding for, various projects which formed no part of the development itself. in particular, j. sainsbury p.l.c. agreed to provide the city with a tourist information centre, an art gallery display and a bird-watching hide. they also agreed to make contributions towards the development of the city's park and ride facilities and a much needed increase in the city's creche provision for working mothers. the total cost to the company of meeting these and other covenants was to be in excess of £3.6m. likewise, tesco stores ltd. too, agreed to provide, following the grant of planning permission, a variety of benefits not directly related to the development for which the company had applied. i for many years planning policy and planning law have both sought to limit the situations where a developer can be required to provide planning benefits before being granted planning permission to those situations where the benefit will overcome some objection to the proposed development. thus, for example, it is not uncommon for developers to be granted planning permission only when they have agreed to pay for improvements to be made to a nearby (off-site) road junction needed to accommodate the increase in traffic likely to be generated by their proposed development, or to pay for a new sewer which would be needed if proposed development were to take place. the principle seemed to be adequately formulated in para.b7 of the department of the environment circular no. 16/91 "planning obligations" which states: "planning obligations should only be sought where they are necessary to the' granting of [planning] permission, relevant to planning and relevant to the development to be permitted." * department of law, university of reading. i. somewhat exceptionally the terms of the proposed arrangements were included as an appendix to the judgment of hutchinson j in the high court. 91 the denning law journal the philosophy is clear. to hold otherwise would be to open the door to the sale of planning permissions. given the severe restrictions which have been placed on public expenditure, local authorities might otherwise be tempted in return for an extraneous benefit to grant planning permission for development in respect of which there was a genuine planning objection. the plymouth supermarkets scenario was somewhat exceptional in that in the city council's view there was no planning objection to the building of both stores; it must therefore follow that even though the council took the developers' undertakings into account in deciding to grant planning permission for the stores, permission would still have been granted if no such undertakings had been given. not surprisingly, the third major food retailer present in the area, the south devon co-operative society, sought (albeit unsuccessfully) both in the high court and the court of appeal to challenge the council's decision. the society had found themselves faced with two competitors, where as previously they had anticipated there would, at most, be only one. their main complaint to the court was that the city council had acted unlawfully by taking into account an immaterial consideration, namely the offer by their competitors to provide the city council with extraneous benefits. they argued that in order for a benefit to be taken into account, it had to be "necessary", in that it must overcome what would otherwise be an objection to the development. without that effect it was claimed, planning permission should have been refused. historical background the source of modem day british planning law was the town and country planning act 1947. for the first time, every parcel ofland was then made subject to planning control, so that with minor exceptions, any land-owner wishing to develop his land had first to obtain planning permission from the local planning authority. it was foreseen that such controls would play havoc with land values; hence the act contained elaborate provisions to compensate all those affected, whilst at the same time ensuring that subsequent increases in the value of land due to planning decisions were to accrue to the state. the effect of the provisions was to tax all development value in land created after the act came into force at a rate of 100 per cent, irrespective of whether the increases were created as a result of restrictive planning policies imposed elsewhere, or by infrastructure provision such as roads, schools, hospitals etc. provided from the public purse and without which the land would not be a marketable development proposition. logical though the act's financial provisions may have been however, the tax (known as the development charge) was abolished in 19532 by an incoming conservative administration. in due course further attempts were made, mainly by labour administrations, through the land commission act 1967 and the development land tax 1976, to recoup for the community through a specific tax, part of the development value of the land 2. town and country planning act 1953. 92 land development and community benefits which would have otherwise accrued to a landowner from a grant of planning permission to develop. both acts were subsequently repealed by conservative administrations. today, there is no special tax payable on development value; although in rare cases an owner may be liable to pay capital gains tax on land value ifhe realises a capital gain on the disposal of such land. increase in land value may arise from other sources. in particular, occupiers such as food retailers benefit, once planning permission has been granted for development for retail purposes, from the ability to secure increased trading profits. the offers by both j. sainsbury p.l.c. and tesco stores ltd. were presumably made out of their anticipated increased trading profits, the increase in the value of the land due to the grant of planning permission having mainly benefited the land owner. planning agreements the grant of planning permission to carry out development has been described as "a licence to print money". it is not surprising, therefore, that impecunious local authorities have sought other means to secure that developers themselves, out of development or other profits, contribute towards the public expenditure needed to facilitate new development. in the absence of any special tax on development value however, the attention of local planning authorities began to turn toward the little known section 52 of the town and country planning act 1971 (subsequently to be consolidated as section 106 of the town and country planning act 1990) which gave power to a local planning authority to ". . . enter into an agreement with any person having an interest in land in their area for the purpose of restricting or regulating the development or use of land, either permanently or during such period as may be described by the agreement". there is some evidence that the power was originally intended to provide authorities with a mechanism for controlling the development ofland before statutory development plans for their area had been prepared and approved. indeed, until the late 1960s, very few agreements were entered into. in the late 1970s, however, the position began to change dramatically, and there was evidence that this statutory provision was being used in a way quite unconnected with its original purpose. local planning authorities saw the provision as an opportunity for obtaining 'planning gain' for their community. in some cases, the grant of planning permission was made conditional upon the applicant entering into a planning agreement. so no agreement, no planning permission. in return for the grant of planning permission, the developer would be expected to enter into an agreement to provide some public benefit, which might or might not be related to the development for which planning permission was to be granted. he might, for example, be required to contribute towards the provision of infrastructure or the restoration of a listed building or church, or to provide public amenities such as open spaces or community centres. for the most part planning agreements were sought and obtained for a proper and legitimate planning purpose. occasionally however, planning agreements were sought for purposes which could be considered of most doubtful legality . examples might 93 the denning law journal include a requirement that the applicant provide new roads or sewers in excess of that required to serve the additional demand generated by the particular development in question; or that he provide at his own expense local authority housing; or that he be allowed an increase in the density or plot ratio normally permitted in return for the dedication of land as open space or as a footpath. it will be seen that the use of planning agreements linked to the grant of planning permission can raise both moral and legal issues. it raises a moral issue when used by a local planning authority to circumvent the general principle that landowners are entitled to planning permission for the development of their land unless there is a substantial planning objection to the development, by the addition of a requirement that they should contribute something in return for that entitlement. it raises a legal issue in the sense that there is vagueness and uncertainty over the extent of authorities' power to require a planning agreement to be entered into as part of a 'planning permission package'. it is not surprising, therefore, that during the late 1970s, commentaries on the use of section 52 agreements were sometimes characterised by such terms as 'the sale of planning permissions' or 'cheque-book planning'; and in severe cases, their use was regarded by developers as little short of blackmail. on the other hand, the system was not universally disliked by developers. the giving of a public benefit was often seen as a small price to pay in return for a grant of planning permission, and often enabled development which would otherwise have been controversial to be more readily accepted by the community. this may explain why so few attempts have been made to challenge such agreements in the courts. in 1980, the growing use of planning agreements together with uncertainty about the legal and administrative contours within which they should operate, persuaded the government to ask a body called the property advisory group to consider and report on the arrangements whereby local planning authorities, in granting planning permission, achieve planning or amenity gains at the expense of the developers. following the group's report, planning gain, the department of the environment issued circular no. 22/83 giving guidance and advice on how far it is proper for a local planning authority to seek from a developer benefits which go beyond the development for which planning permission is being sought. the circular said that authorities are not entitled to treat an applicant's need for planning permission as an opportunity to obtain wholly extraneous benefits from the developer. according to the circular, the reasonableness of asking the developer to accept an obligation over and above his development proposals depended substantially on whether what was required: (a) was needed to enable the development to go ahead, e.g. , provision of adequate access, water supply, sewerage and sewage disposal facilities; (b) in the case of financial payments, would contribute to meeting the cost of providing such facilities in the near future; (c) was otherwise so directly related to the proposed development and to the use of land after its completion that the development ought not to be permitted 94 land development and community benefits without it, e.g., the provision, whether by the developer or by the authority at the developer's expense, or car-parking in or near the development or of reasonable amounts of open space related to the development; or (d) was designed in the case of mixed development to secure an acceptable balance of uses. where those tests were met two others were to be applied. they were whether: (a) the extent of what was required was fairly and reasonably related to scale and kind to the proposed development; (b) what the developer was being asked to provide or help to finance represented in itself a reasonable charge on the developer as distinct from being financed by national or local taxation or other means (e. g. , as a charge on those using the facility provided). the circular reminded authorities which sought to impose unreasonable obligations in connection with a grant of planning permission that the developer was entitled to refuse to accept the demands being made and to appeal to the secretary of state against any subsequent refusal of permission or imposition of a condition or the nondetermination of the application. in 1991, circular no. 22/83 was cancelled, and a new circular no. 16/91 "planning obligations" issued consequent upon the abolition of "planning agreements" and their replacement by what are now known as "planning obligations". reasons for the change one of the problems with planning agreements was that only the developer and local planning authorities could be parties to it. a developer was not obliged to enter into an agreement and if a local planning authority decided to hold out for one, the developer could only appeal against non-determination of the application or its refusal, whichever was the case. the inspector or the secretary of state might then conclude, however, that permission could be given if there was an agreement which allowed the objection to the development to be removed which could not be achieved by the imposition of a condition. in such cases, the only action the inspector could take, apart from refusal, was to suggest that an agreement might be entered into. this was unsatisfactory, however, since on the one hand the inspector or secretary of state could not specify the terms of such an agreement which was a matter for negotiation between the parties; and, on the other, the developer might be unable to reach agreement on its terms with the local authority. accordingly, the government decided that there should be statutory provision to enable a developer to give a unilateral undertaking, which would be binding on him and on successors in title, to carry out certain works or to do whatever the undertaking may specify. the advantage of such an undertaking, which would be enforceable by the local authority, was that it would not be necessary for the local planning authority to agree the terms. in considering the related planning application or appeal, the 95 the denning law journal authority or the secretary of state respectively would be required to have regard to the terms of any unilateral undertaking offered by the developer (or any agreement into which he was willing to enter), and the developer would be able to give further undertakings (or offer to enter into further agreements) during the course of appeal proceedings. planning obligations when planning legislation was consolidated in 1990, section 52 of the town and country planning act 1971 became section 106 of the town and country planning act 1990. a year later the section was repealed by the planning and compensation act 1991 and new section 106, 106a and 106b containing the provisions relating to planning obligations, was substituted in its place. the new section 106, amended the law relating to 'planning agreements' by enabling a developer to enter into a 'planning obligation', which may be done either by agreement with the authority, or by the developer giving a unilateral undertaking. it was undertakings under this provision by j. sainsbury p.l.c. and tesco stores ltd. that was the issue in the plymouth case. the new section 106 of the 1990 act provides that any person interested in land in the area of a local planning authority may, by agreement or otherwise, enter into an obligation (defined as 'a planning obligation'). it provides that such obligation may restrict the development or use ofland in some specified way; require specified operations or activities to be carried out in, on, under or over land; require the land to be used in some specified way; or require a sum or sums to be paid to the authority on a specified date or dates or periodically. it is interesting to note that the new section sets out in rather more detail than did the old purpose of a planning obligation and for the first time also, there is a statutory recognition that an obligation may include an undertaking to make cash payments. consequent upon these legislative changes, the department of the environment revoked the earlier circular no. 22/83 "planning gain" and in circular no. 16/91 "planning obligations", issued guidance on the operation of the new legislative provisions. the new circular explained the changes made by new provisions, but contained no substantial departures from the general policy previously set out in the old circular which it had replaced. it did however, on matters of detail, enlarge the rules as to what the secretary of state would consider reasonable where local planning authorities sought to impose obligations on developers under the new provisions. in particular, the new circular contemplates developers contributing not only to the cost of physical infrastructure directly related to the proposed development, but also the cost of social infrastructure such as "social, education, recreation, sporting and other community provision, the need for which arises from the development. "3 in addition, the new circular envisaged that obligations might be used to "offset the 3. para. b8.3. 96 land development and community benefits loss of impact on any amenity or resource present on the site prior to development, for example in the interests of nature conservation." the plymouth decision section 70(2) of the town and country planning act 1990 provides in determining an application for planning permission, the local planning authority" shall have regard to the provision of the development plan, so far as material to the application, and to any other material consideration." the devon co-operative society's case was that the city council had acted unlawfully by taking into account immaterial considerations, namely the offers by the other two food retailers to provide some or all of the community benefits. the society argued that in order for a benefit to be taken into account it had to be "necessary", that is, needed in order to overcome what would otherwise be a planning objection to the development or some harm which would flow from it. both the high court and the court of appeal rejected the society's argument. a unanimous court of appeal held that the test of materiality was (as with a condition imposed in a grant of planning permission4) threefold, namely it had to serve a planning purpose; it had to fairly and reasonably relate to the development permitted; and it had not to be wednesbury unreasonable. in dismissing the applicants' challenge to the decision of the plymouth city council to grant planning permission to j. sainsbury p.l.c. and tesco stores ltd. the court of appeal held that all the benefits offered by the two respondent companies met that threefold test. the decision of the court of appeal is likely to have far-reaching consequences. it now seems that in determining applications for planning permission, a local planning authority can now take into account any benefit (incuding those extraneous to the development applied for) provided that it fairly and reasonably relates to the permitted development; the benefit no longer has to be one whose absence would justify the refusal of planning permission. the decision means that the advice contained in circular no. 16/91 is at best, inaccurate. at worst, it indicates an avenue whereby the test currently laid down in the circular can be circumvented by a developer anxious to secure planning permission from a local planning authority anxious to obtain a contribution from developers to meet the cost of other development projects. above all, the decision must raise the spectre of planning permission being bought and sold, particularly where the scales between a grant or refusal of planning permission are evenly balanced. concern that this is a real possibility is seen in an even more recent decision than that in the plymouth case. the precise limits on the ability of a local planning authority (or the secretary of state on appeal) to require or receive community benefits in excess of what is necessary to enable the development to proceed is now in total disarray, which only the house of lords or parliament can correct. as it happens, the house of lords are to be allowed the first try since as this journal goes to press, the house 4. see viscount dilhorne's three tests in newbury district council v. secretary of state (1981) a.c. 578, at p.599. 97 the denning law journal of lords have granted tesco leave to pursue their appeal, after it having been refused by the court of appeal. in tesco stores ltd v secretary of state for the environment and west oxfordshire district council and tarmac provincial properties ltd. 5 tesco and tarmac had both sought planning permission to build a retail store on the outskirts of witney in oxfordshire. following a public inquiry into both proposals, the inspector recommended permission for tesco bot not for tarmac. contrary to those recommendations the secretary of state refused tesco' s application and granted tarmac permission. in an application to quash the decision, tesco argued that the secretary of state had erred in not considering an offer by tesco to fund a new road to the west of the town on the ground that the relationship between the road and the proposed store was tenuous. the secretary of state had incorrectly applied to that offer an inappropriate test of necessity, rather than regarding it as one more material consideration to be taken into account. although successful in the high court (where the judge applied the plymouth decision), the court of appeal found for the secretary of state on the ground that although he must have concluded that the offer of funding was material, he had given the offer no weight. steyn u, however, thought that the se~retary of state's reasoning could not easily be reconciled with the decision in the plymouth case, which he considered had' 'obliquely destroyed the core of the circular" and "became perilously close to emasculating the principle that planning permission may not be bought and sold. " 5. [1994] j.p.l. 919. 98 bringing home the european convention on human rights *the rt.hon.the lord woolf early in its administration, the government confirmed that section 1 of the european convention on human rights (articles 2 to 12 and 14 to 18 and protocol no 1 (articles 1 to 3)) would be incorporated into domestic legislation. the human rights bill, which will incorporate the convention, is currently progressing through parliament. this bill will ensure that our courts apply the convention rights in a way which reflects case law of the european court of human rights at strasbourg, enabling individuals to have access to rights here that at present they have to seek through the lengthy and expensive process of going to strasbourg. the convention rights will be available against public bodies only, and not against private bodies or individuals. the human rights bill will bring the convention home. experience in other parts of the commonwealth suggests that incorporation of the convention will change dramatically the landscape of the legal scene in britain. it is true that, over the last ten years or so, some of the principles the convention encapsulates have been entering our law by a process of osmosis. many of the concepts enshrined in the convention have therefore been given effect. although we were not previously aware of it, all along these principles have been part of the common law! they were, so to speak, not foreign intruders but english princesses sleeping peacefully, waiting for the kiss of a judicial prince to bring them in tum to life when deciding a case. however, the gradual process that has been taking place bears no relation to the impact which will result from making the convention part of the law of this country. incorporation will produce change on a scale which is perhaps without precedent. it will require the judiciary to adjust to a new situation. even our becoming members of the european community provides no true precedent. lord denning, my predecessor as master of the rolls and whose distinguished name this journal bears, described in a prophetic judgment the incoming tide • the master of the rolls. denning law journal making its way into the estuaries and up the rivers. i by comparison to that gradual process, the enactment of the human rights bill will be as though a tidal wave has transformed the legal landscape. it will affect every part of the law. if the experiences in new zealand and canada are typical, the effect on litigation will be immediate. we will see the effect in many criminal cases heard in magistrates' courts until legislation is reformed. instead of the slow and expensive route of taking proceedings to strasbourg after domestic avenues of appeal have been exhausted, incorporation will give our courts the power to give effect to the convention rights in the course of proceedings in this country as they arise. as in the common law, interpretation of the conyention articles will develop over time, but incorporation of the convention will mean that the public and those who govern the public will be clear about what is the proper way to behave. incorporation will give lawyers the opportunity to advance arguments they could not advance at present in our courts. this will mean that there will be a tendency for the law to develop as it has not developed before, bringing our law more into accord with that required by the convention. the bill is going to change the focus of our law. our system of public law is structured around duties. public bodies are required to act in the spirit of the discretions given to them by parliament. the bill will shift the focus from the duties of public bodies to the rights of the individual. after incorporation, individuals will have public rights in all areas of the law. the lord chancellor, in his recent tom sargent memorial lecture, said that "a citizen's right is asserted as a positive entitlement expressed in clear and principled terms." he suggested that the traditional common law approach to the protection of individual liberties offers little protection against a creeping erosion of freedom by a legislature willing to countenance infringement of liberty or simply blind to the effect of an otherwise well-intentioned piece of law. he drew attention to the 50 cases in which the european court has found a violation of the convention by the united kingdom. the change to a rightsbased system will affect decisions made across the board from criminal cases in magistrates' courts to applications for judicial review. the courts will be investigating whether citizens' rights have been infringed and, if so, whether infringement of those rights can be justified. personally i am pleased that the bill restricts the courts' power to declaring that an act of parliament is inconsistent with a provision ofthe convention but i h.p. bulmer ltd. and another v . .j.bollinger s.a. and others [1974] 2 all e.r. 1226. 2 the european convention on human rights does not give the courts power to strike down or otherwise to affect the validity of an act of parliament. in this the bill reflects the views of the vast majority of, if not possibly all, the senior judiciary. the judiciary regard what is proposed as being far more desirable than a bill which enables the judiciary to strike down legislation. it is in accord with our constitutional traditions for legislation not to be struck down and for the courts to identify the inconsistency by a declaration. i anticipate there will be few cases where the courts will be unable to construe legislation in accordance with the convention. but if they cannot, parliament should decide how the situation should be rectified. a political decision of this sort is not an appropriate task for the courts. a declaration of incompatibility will trigger the ability to use a special fast-track procedure in parliament to bring the law into line with the convention. my main concern about the bill, which on the whole i warmly welcome, is its very narrow requirement as to standing. it is only a "victim" who can rely on the convention before our courts. if we are not careful we could have a new divide which repeats the problems created by the distinction between the procedure for resolving public and private disputes. if there are two parties making the same complaint, one will be able to rely on both traditional judicial review grounds and the convention and the other will only be able to rely on traditional judicial review grounds. however, no matter how the bill evolves during the process of parliamentary scrutiny, when it comes into force it will be loyally applied by the courts. in applying the bill, the courts will be adopting the role which they have clearly identified when hearing applications for judicial review. this role involves upholding the law. this role is fundamental to our constitution, and will continue even though the enactment of the bill will undoubtedly increase the responsibility of the courts. as i have said, the scale of the change will be large and wide-reaching. incorporation of the convention will change the process by which decisions are made. the courts will have to develop new skills. i have no doubt as to their ability to do so. however, it is imperative that the system is prepared properly. judges need to be given the appropriate training; arrangements need to be put in place to manage the likely increase in litigation; appropriate avenues for appeal need to be devised. judges and lawyers will need access to the necessary material, and to learn how to use it; to ensure they are familiar with decisions made by the european commission and the european court of human rights. some law publishers are already making strides in widening the availability of these sources. it is impossible to say at this stage exactly what the relationship 3 denning law journal will be between these decisions and those made in our courts. what is certain, though, is that at the least they will be highly persuasive. we shall need to keep in step with decisions made in other commonwealth jurisdictions whose constitutions include provisions similar to those of the convention. i believe that the spirit of the judiciary and practitioners will be to welcome the challenge that incorporation of the convention presents. such an approach will allow our judiciary and legal profession to make a proper contribution to european jurisprudence relating to human rights. that jurisprudence will be enriched through our involvement. there are exciting times ahead for the law. 4 human rights, 'arranged' marriages and nullity law: when do 'force', parental 146 denning law journal 2015 vol 27 pp 146-177 australian aboriginal human rights and apprehended bias: skirting magna carta protections? gary lilienthal  and nehaluddin ahmad  introduction the significance of this paper is in discussion of the wholesale obliteration of religious and other rights among australian aboriginal people, constituting a subspecies of continuing genocide. the constitution of the commonwealth of australia states its directive on religion as follows. “the commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the commonwealth.” 1 this constitutional section prohibits the making of laws, as stated, but does not prohibit administrative action imposing religious procedures. neither does it prohibit official administrative action to restrain the free exercise of religion in australia. indeed, persuasive case law agrees with this proposition. in the 1984 case of grace bible church v reedman, 2 the appellant argued that in australia there was “an inalienable right to religious freedom and that that  dr gary lilienthal, llb, (sydney university, australia), grad dip legal practice, (college of law, sydney), m psychoanalytic studies, (deakin university, australia), phd, (curtin university, australia). senior lecturer, school of law, college of government and international studies, universiti utara malaysia. email: garylilienthal@gmail.com  dr nehaluddin ahmad, ma, llb, llm (lucknow university, india), llm (strathclyde university, uk), lld (meerut university, india). professor, faculty of law, sultan sharif ali islamic university (unissa), brunei. email: ahmadnehal@yahoo.com. 1 constitution of the commonwealth of australia, s 116. 2 (1984) 36 sasr 376. the denning law journal 147 freedom cannot be abridged by any statute of the south australian parliament.” 3 the full court of the supreme court of south australia dismissed the appeal unanimously. zelling j opined that the appellant‟s submission would compel a rewriting of history. this was in the light of examples of the intersection of the law, government and religion in the united kingdom, when the common law was received in australia. 4 white j held that the common law recognised the supremacy of parliaments. as such, it never prevented the parliament from exercising “an absolute right to interfere with religious worship and the expression of religious beliefs at any time that it liked”. 5 he added that the common law never included a basic guarantee of an inalienable right to religious freedom and expression. 6 as to the receiving of the english common law in australia, the british parliament had passed “an act to provide for the administration of justice in new south wales and van diemen‟s land” in 1828. 7 section 24 of this act stated: “that all laws and statutes in force within the realm of england at the time of the passing of this act . . . shall be applied in the administration of justice in the courts of new south wales and van diemen‟s land respectively, so far as the same can be applied within the said colonies”. 8 the wording of the statute applies english law only conditionally. however, by the statute, the state church of england became the established and state-run church in australia. 9 this inferred no separation between church and state. thus, imposing administrative procedures, of a religious nature, within the court system, is not proscribed by the constitution of the commonwealth of australia, and further must be compared with the strictures of magna carta‟s requirement for judgment of all freemen by the law of the land, or in other words, the substantive law. 10 this paper 3 ibid 377. 4 ibid 379. 5 ibid 385. 6 ibid 388. 7 9 geo iv c 83. 8 ibid s 24. 9 it is notable that the chief judge in equity in the state of new south wales also sits on the new south wales anglican church synod. 10 magna carta (1297) s xxix states: „no freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we not pass upon him, nor [condemn him,] but by lawful judgment of his peers, or by the law of the land. we will sell to no man, we will not deny or defer to any man either justice or right.‟ australian aboriginal human rights and apprehended bias 148 argues that this imposition is exactly what has happened in australia, according to the english common law, to the detriment of the australian aborigines. these people could never have been freemen within the meaning of magna carta. the purpose of this paper is to depict, through the lens of priestly cultus and an apprehension of judicial bias, how abstract and removed the justice system can feel for australian aboriginal peoples, in the context of a foreign concept of being a freeman. it imposes on them a foreign religion and culture, to which they have no ancient loyalty. in nulyarimma v thompson genocide case, australian aboriginal litigants commenced a prerogative action in mandamus to seek relief against genocide. 11 justice crispin held that australia did not have a domestic law against genocide, while adding that genocide had continued to occur in australia. his honor held that british settlers and colonial officials committed acts of genocide during the colonization of australia. 12 he held that it appeared that this was contrary even to the english law at the time of colonization. 13 the scholarship has already suggested links between judicatures and religion, by judges exercising a kind of authority arising from principles of the organization of institutional religion, known as cultus. 14 judges in western countries, in effect, practiced priest craft, by asserting their authority on the same cultus bases as the priest. 15 therefore, this article asks whether the australian courts are ignoring aboriginal genocide claims, and if so, how? it tries to show that the australian courts tend to prefer procedural rules to the substantive law in matters of aboriginal claims for relief against genocide. the article will test two hypotheses, the first being that australian courts ignore the common law against genocide through their operative cultus. 16 the 11 in the matter of an application for a writ of mandamus directed to phillip r thompson ex parte wadjularbinna nulyarimma, isobel coe, billy craigie and robbie thorpe (applicants), tom trevorrow, irene watson, kevin buzzacott and michael j anderson (intervenors) [1998] actsc 136. 12 ibid [78]. 13 ibid [32]. 14 larry cata backer, „retaining judicial authority: a preliminary inquiry on the dominion of american judges‟ [2003] 12 william & mary bill of rights journal 101, 4. 15 ibid. 16 see below for a discussion of the description of cultus as meaning the routinized ritual process, evidenced in public loyalty, representing certain inner principles and meanings, performed publicly without reference to those inner meanings. the denning law journal 149 second hypothesis is that the australian judicature has declined to enforce the law against child sexual abuse of aboriginal children, as an indicator of genocide, and indicating judicial bias. the paper‟s methodology is one of cumulative synthesis as the paper‟s argument proceeds. 17 argument is delimited to viewing the problem through the lenses of cultus and apprehended bias. the focus will begin with a discussion of australian aborigines and their human rights issues related to genocide. this will serve to introduce the australian aborigines and the aboriginal rights problem in connection with the australian judiciary. following this context-setting section, argument proceeds by explaining the cultus, or, religion perspective, and the bias, or law, perspective. finally argument uses these two perspectives, synthesized together, to analyze the case of ngurampaa limited v brewarrina shire council. 18 in ngurampaa, a serving aboriginal “ghillar” elder, mr michael eckford, a non-lawyer, sought prerogative relief in prohibition. he wanted to prevent the brewarrina shire council operating a government on his people‟s lands while trespassing on them, and their consequent taxing of his people by statute, without the express public consent of the taxed. 19 the outcome of the research is likely to suggest that cultus is a widely acceptable system of rites formed by priestly artifice. in the legal system, cultus manifests as what lord diplock called over-judicialization, 20 leading to a doctrine of a “legally reasonable observer”. the cultus procedure of the court could remove the litigant‟s choice of determining judicial bias, and eliminate the possibility of protection through due process as a freeman under magna carta. in ngurampaa limited v brewarrina shire council, 21 there was apprehended bias by virtue of overt and sustained cultic utterances by the judge. 17 lonergan described methodology as a normative pattern of recurrent and related operations yielding cumulative and progressive results; bernard joseph fancis lonergan, method in theology (longman & todd 1975) 5. 18 ngurampaa limited v brewarrina shire council [2014] nswsc 524. 19 the rhetorica ad herennium sets out six sources of law: nature; statute; custom; previous judgments; equity; and, agreement. statute is law enacted with express public consent: harry caplan (trs), rhetorica ad herennium (harvard university press 2004) 91, 93. 20 bushell v secretary of state for the environment [1981] ac 75 (hl) 97. 21 ngurampaa (n 18). australian aboriginal human rights and apprehended bias 150 australian aborigines and human rights argument begins with an introduction to australian aborigines and aboriginal problems in connection with the australian judiciary. australian aboriginal people and their cultures are interwoven with the land and its creation mythologies. their laws are well-developed and stabilized over some 60,000 years, each aboriginal nation possessing a legislative debating structure, chief law officers and ancient mythological narratives to explain their laws. their legal structures possess a transmission system using dance and song, by which the laws are both preserved and transmitted through the generations. 22 they have councils of elders, which resemble presidential commissions, and who appear to be very conservative in their decision-making. they preferred to err on the side of maintaining and observing the old laws. 23 the australian museum has written about the australian aboriginal peoples, stating that these peoples had occupied australia for at least 60,000 years. they evolved with the land, viewing the land as a whole environment that sustained, and was sustained, by the aboriginal peoples and their cultures. 24 thus, the land was the core of their spirituality. 25 they and their entire culture could be said to be appurtenant to the land. when british colonizers first arrived in australia in 1770, they designated australia as “terra nullius” and claimed all the land, despite the fact they had not seen more than a tiny fraction of the land. neither had they circumnavigated and mapped the continent. terra nullius is a latin term meaning “land belonging to no one”. by using the principle of terra nullius, the british government claimed sovereignty over australia, ignoring the rights and sovereignties of aboriginal people, organized into some 250 nations, who had lived there for at least 60,000 years. 26 22 since ancient times, kings had used mimetic symbols techniques, such as dance and plays, to communicate their power and their laws to the illiterate populace by analogy to what the populace already believed and understood. lillian b lawler, „proteus is a dancer‟ (1943) 36 the classical journal 116, 116-17. 23 gary lilienthal, interview with michael eckford (sydney, 22 april 2014). mr eckford is a „ghillar‟, or senior aboriginal elder, of an aboriginal nation situated in the north west of the australian state of new south wales. 24 stuart humphreys, „the land‟ (australian museum, 24 december 2009) <http://australianmuseum.net.au/indigenous-australia-the-land> accessed 24 april 2015. 25 ibid. 26 ibid. the denning law journal 151 however aboriginal people fought, and still fight, for their land and lives. 27 british colonizers progressively dispossessed aboriginal people of their land. 28 the issue of title has never been resolved, with many aboriginal people claiming allodial title 29 to the entire australian continent, and colonial settlers‟ descendants operating a system of torrens title 30 to the australian continent‟s lands. thus, in the seminal 1992 high court of australia case on aboriginal land rights, mabo and others v state of queensland, 31 brennan j stated as follows: “the common law of this country would perpetuate injustice if it were to continue to embrace the notion of terra nullius and persist in characterising the indigenous inhabitants of the australian colonies as people too low in the scale of social organisation to be acknowledged as possessing rights and interests in land.” 32 in the australian judicial hierarchy, there is a state hierarchy for each of the states and territories, and another federal judicial hierarchy. the high court of australia is at the apex of all the judicial hierarchies. in 1998, wadjularbinna nulyarimma, a gungalidda elder from doomadgee, in australia‟s northeastern gulf of carpentaria, commenced a genocide 27 ibid. 28 ibid. 29 allodial lands are the absolute property of their owner. they are not subject to any rent, service, or acknowledgment to a superior holder. allodial title is the opposite of feudal land tenure: james clarke holt, colonial england 1066–1215 (the hambledown press 1997) 115. 30 a torrens title is a single certificate of title for an allotment of land. the certificate is issued administratively, and abolishes deeds of transfer of title, drawn up by the parties to the transfer. it is the most common type of title in british commonwealth countries. all transactions such as transfers of ownerships, are registered on the certificate of title. the torrens title certificate shows: details of who currently owns the property, any easements, registered on the property, any encumbrances, registered on the property, and the title's unique reference details. torrens title was designed in the colony of south australia after an 1839 fire destroyed the colony‟s district maps. after 1842, district divisions were replaced gradually by counties and hundreds, and the government resurveyed and renumbered the land: „torrens title‟ (government of south australia, 26 may 2015) <https://www.sa.gov.au/topics/housing-property-andland/property-and-place-information/certificates-of-title/understanding-types-oftitles/torrens-titles> accessed 30 april 2015. 31 [1992] 175 clr 1. 32 ibid [41] (brennan j). australian aboriginal human rights and apprehended bias 152 action in the supreme court of the australian capital territory against the sitting prime minister of the time and the entire federal parliament, over the government‟s native title act 33 statutory amendments. the sitting prime minister promised what he called “bucket loads of extinguishment” of native title rights and interests, 34 so to pave the way for unimpeded mining and other kinds of development. the australian capital territory had ruled aborigines pursuant to a 1954 ordinance, signed into law personally by the queen, 35 and later repealed on 11th november 1965. thus, official colonization activities continued in australia in 1965. section 10 of that ordinance stated as follows. “for the purposes of section seven of this ordinance inspections and the last preceding section, a member of the police force, or an inquiries person authorized in writing by the minister, shall have access at all reasonable times to an aboriginal at any place in which he is residing or employed and may make such inspections and inquiries as that member or person thinks fit.” 36 this ordinance section granted police and other officials unfettered authority to inspect and inquire into aborigines as the equivalent of an ongoing and unlimited investigation. thus, aboriginal people were subject to constant surveillance while living the most private parts of their lives, including their secret rites. this abridged their freedom of what they saw as religious and other cultural activities, and, it amounted to treating them as the inspecting officials‟ property. 37 33 native title act 1993 (australia). 34 „native title report july 1996 to june 1997: report of the aboriginal and torres strait islander social justice commissioner to the attorney-general as required by section 209 of the native title act 1993‟ (australian government, 2001) <https://www.humanrights.gov.au/sites/default/files/content/pdf/social_justice/nat ive_title_report_97.pdf> accessed 24 april 2015. 35 an ordinance relating to aborigines no 8 of 1954 (australian capital territory). 36 ibid s 10. 37 international labour organization, convention to suppress the slave trade and slavery, 1926, as amended by the supplementary convention on the abolition of slavery, 1956. art 1 of the 1926 convention defined slavery as: „the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised‟. the denning law journal 153 in this nulyarimma v thompson genocide case, the act supreme court, in canberra, heard a prerogative action in mandamus against australian capital territory officials. 38 justice crispin held that australia did not have a domestic law against genocide, while admitting from the bench that genocide had continued to occur in australia. crispin‟s ruling was upheld on appeal in the federal court of australia. 39 justice crispin made a landmark declaration on the subject of genocide committed against aboriginal peoples of australia. his honor held that there was ample evidence to satisfy the court that acts of genocide were committed during the colonization of australia. 40 he held it was clear from what he called “the bloody pages of australian history” that the comprehensive destruction of aboriginal peoples coincided with an equally extensive and unlawful usurpation of their lands. his honor held that in the light of current knowledge, it appeared that this course was contrary even to the english law prevailing at the time of colonization. 41 this suggested a subsisting english common law against the commission of criminal genocide, which the australian courts were either unwilling to discover, or were prevented from such discovery by the nature of the pleadings. pointing to a defect in the element of international relations within australian sovereignty, and emphasizing the irony of the dictum of brennan j, as above, justice crispin went on to conclude that australia did not act as a civilized country, 42 because it appeared to him that, while the law effectively ratified the convention, 43 it did not purport to incorporate the provisions of the convention into australian municipal law. 44 he concluded that no criminal offence of genocide existed in the domestic law of australia. 45 38 nulyarimma (n 11). 39 nulyarimma v thompson [1999] fca 1192. 40 nulyarimma (n 11) [78]. 41 ibid [32]. 42 „reservations to the convention on the prevention and punishment of the crime of genocide, advisory opinion of 28 may 1951‟ (the international court of justice, 28 may 1951) <http://www.icjcij.org/docket/index.php?sum=276&code=ppcg&p1=3&p2=4&ca se=12&k=90&p3=5> accessed 1 june 2015. 43 united nations, convention on the prevention and punishment of the crime of genocide, adopted by the general assembly of the united nations on 9 december 1948. 44 nulyarimma (n 11) [66]; and see international criminal court (consequential amendments) act 2002 (australia), ss 268.121-268.122. 45 nulyarimma (n 11) [73]. australian aboriginal human rights and apprehended bias 154 the possibility of a subsisting common law against the commission of genocide, coupled with the court‟s finding that no criminal offence of genocide existed in the domestic law of australia, 46 constituted an unexplored paradox in the state of the australian common law. the innerdoctrine of the law against genocide had disappeared into this apparent judicial non sequitur. one hypothesis would be that, while the common law prohibited genocide, the courts simply ignored acts of genocide by some kind of special cultus-style of arrangement in the court rules. thus, the question arises as to what aspects of court procedure might facilitate the ignoring of genocide. during the case‟s appeal to the full bench of the federal court of australia, 47 one level below the high court of australia in the australian judicial hierarchy, the australian government articulated its policy on aboriginal genocide through the australian government‟s chief legal counsel, a queens‟ counsel barrister-at-law. he stated that the australian government “deliberately did not enact the genocide convention”, 48 and continued as follows. “…there are good reasons why this court should be very slow to create a new civil cause of action based on an international right which parliament has deliberately chosen not to directly incorporate into australian criminal law.” 49 from the australian government‟s perspective, the thought of a massive award in general damages in tort might dwarf their repugnance to any conviction for a criminal offence. the international court of justice had inferred, 50 in its deliberations on the genocide convention, 51 that a country could not be considered civilized if it did not have a law to prevent genocide. 52 46 ibid. 47 thompson (n 39). 48 federal court transcript nulyarimma v thompson no a 5 of 1999 and no s 23 of 1999, 31 may 1999 at nulbu 31.5.99 p-4. 49 ibid. 50 „reservations to the convention on the prevention and punishment of the crime of genocide, advisory opinion of 28 may 1951‟ (n 42). 51 convention on the prevention and punishment of the crime of genocide (n 43). 52 the preparation of the convention on genocide shows that an undertaking was reached within the general assembly on the faculty to make reservations and that it is permitted to conclude therefrom that states, becoming parties to the convention, gave their assent thereto. what is the character of the reservations which may be made and the objections, which may be raised thereto? the the denning law journal 155 “the principles underlying the convention are recognised by civilised nations as binding on states even without any conventional obligation. it was intended that the convention would be universal in scope. its purpose is purely humanitarian and civilising.” 53 the preamble to the genocide convention stated as follows. “having considered the declaration made by the general assembly of the united nations in its resolution 96 (i) dated 11 december 1946 that genocide is a crime under international law, contrary to the spirit and aims of the united nations and condemned by the civilized world.” 54 all those signing the convention effectively condemned genocide, unless they failed to facilitate a jurisdiction under which they could prosecute those responsible for committing the crime of genocide. to behave otherwise would defeat any such condemnation. it would most certainly require that signatory nations would not commit genocide. the commonwealth of australia has still not fully reduced the genocide convention 55 into its municipal law, although australia was the third country to sign the convention on 8th july 1949. 56 for example, solution must be found in the special characteristics of the convention on genocide. the principles underlying the convention are recognised by civilised nations as binding on states even without any conventional obligation. it was intended that the convention would be universal in scope. its purpose is purely humanitarian and civilising. the contracting states do not have any individual advantages or disadvantages nor interests of their own, but merely a common interest. this leads to the conclusion that the object and purpose of the convention imply that it was the intention of the general assembly and of the states which adopted it, that as many states as possible should participate. this purpose would be defeated if an objection to a minor reservation should produce complete exclusion from the convention; „reservations to the convention on the prevention and punishment of the crime of genocide, advisory opinion of 28 may 1951‟ (n 42). 53 ibid. 54 convention on the prevention and punishment of the crime of genocide (n 43). 55 ibid. 56 ibid. article ii: in the present convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or australian aboriginal human rights and apprehended bias 156 only some parts of the genocide convention were imported into australian domestic law. 57 only the australian attorney general could commence a genocide case, and if the attorney general had some reason to refuse, and did refuse to prosecute, there was no right of appeal and no statement of reasons was required. 58 a complainant seeking to sue for religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group. article iii: the following acts shall be punishable: (a) genocide; (b) conspiracy to commit genocide; (c) direct and public incitement to commit genocide; (d) attempt to commit genocide; (e) complicity in genocide. 57 international criminal court (consequential amendments) act 2002 (australia), ss 268.121-268.122. 58 ibid s 268.121. bringing proceedings under this division (1) proceedings for an offence under this division must not be commenced without the attorney general‟s written consent. (2) an offence against this division may only be prosecuted in the name of the attorney general. (3) however, a person may be arrested, charged, remanded in custody, or released on bail, in connection with an offence under this division before the necessary consent has been given. 268.122 attorney general‟s decisions in relation to consents to be final (1) subject to any jurisdiction of the high court under the constitution, a decision by the attorney general to give, or to refuse to give, a consent under section 268.121: (a) is final; and (b) must not be challenged, appealed against, reviewed, quashed or called in question; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari. (2) the reference in subsection (1) to a decision includes a reference to the following: (a) a decision to vary, suspend, cancel or revoke a consent that has been given; (b) a decision to impose a condition or restriction in connection with the giving of, or a refusal to give, a consent or to remove a condition or restriction so imposed; (c) a decision to do anything preparatory to the making of a decision to give, or to the denning law journal 157 genocide simply could not commence a genocide action in australia. this placed the decision firmly into the political field, as was contrary to the intent of the long-standing genocide convention, 59 to which australia was a high contracting party. in 2007, the government of the northern territory of australia published what was known as the “little children are sacred” report. 60 in this report were many allegations of aboriginal child sexual abuse perpetrated by aboriginal men, but with no matching record of wide-scale prosecutions of aboriginal men for this crime. the australian government acted on the report, without public consultation and without prosecutions in the courts, with what many aborigines viewed as a military invasion. 61 on 21 june 2007, after the release of the “little children are sacred” report, 62 the australian federal government announced the northern territory emergency response, also commonly known as “the intervention”, suggestive of mass psychological harm to aboriginal men by virtue of these public denunciations. 63 they used the term in a common psychological or psychotherapeutic sense, and thereby avoided the country‟s judicature. this sent a clear signal to the judicature, a possible breach in the separation of powers within the australian constitution, 64 indicating the judicature ought comply with the government‟s intervention-related military policies. refuse to give, a consent or preparatory to the making of a decision referred to in paragraph (a) or (b), including a decision for the taking of evidence or the holding of an inquiry or investigation; (d) a decision doing or refusing to do anything else in connection with a decision to give, or to refuse to give, a consent or a decision referred to in paragraph (a), (b) or (c); (e) a failure or refusal to make a decision whether or not to give a consent or a decision referred to in a paragraph (a), (b), (c) or (d). 59 convention on the prevention and punishment of the crime of genocide, (n 43). 60 government of the northern territory, report of the northern territory board of inquiry into the protection of aboriginal children from sexual abuse, 2007. 61 the tasmanian aboriginal centre, the invasion of northern territory aboriginal communities and its implications for tasmania, 2007. 62 report of the northern territory board of inquiry into the protection of aboriginal children from sexual abuse (n 60). 63 „the nt intervention and human rights‟ (amnesty international, 2007) <http://www.amnesty.org.au/hre/comments/24400> accessed 24 april 2015. 64 see the structure of the constitution of the commonwealth of australia, and see the high court of australia case of kable v dpp (1997) 189 clr 51, in which the high court of australia found there to be no separation of powers in the state of new south wales. australian aboriginal human rights and apprehended bias 158 with a paucity of prosecutions, and a military intervention later to be judged internationally as specious, the reader might consider that the judicature and the police had declined to enforce the law against child sexual abuse, as an indicator of genocide. in this hypothesis, it could be because it might have interrupted the report‟s evidence of aboriginal self-destruction, and made it easier to maintain a policy of usurping aboriginal allodial title to their ancient lands. this hypothesis strongly demands a consideration of systemic apprehended bias within the judicature. the australian government deployed the following policies as part of the “intervention”. (a) the government introduced management of 50% people‟s welfare income, dictating how the money was to be spent. 65 (b) it introduced compulsory leases of aborigine-owned land, giving the government “exclusive possession” of aboriginal land for five years. these leases under military duress allowed the government to repair, demolish, or replace any existing building without the owners‟ consent. 66 (c) they introduced blanket bans on alcohol, gambling and pornography in named communities and placed signs announcing these bans at the entrances to aboriginal communities. 67 (d) they abolished the permit system, which had given aboriginal people control over who came into their traditional lands. the northern territory land rights act had recognized aboriginal land as private property, and the permit system was designed to ensure aboriginal people had the same rights as other owners of private property. 68 (e) they offered government services in exchange for leases, such as housing and housing maintenance, on the condition that aborigines waived permanently their property rights. to make it legal to implement the intervention, the australian government suspended the racial discrimination act and the northern territory anti-discrimination laws, in contravention of the government‟s obligations under cognate international instruments. australian and international law prohibited discrimination on the grounds of race, however the government claimed that it was necessary to override human rights in order to protect the children, the subject of the “little children are sacred” report. 69 amnesty international stated that many of the policies of the intervention: (a) did not protect children, or were not related to achieving 65 „the nt intervention and human rights‟ (amnesty international, 2007) <http://www.amnesty.org.au/hre/comments/24400> accessed 24 april 2015. 66 ibid. 67 ibid. 68 ibid. 69 ibid. the denning law journal 159 that goal; (b) did not relate to the goals expressed in the media to justify the intervention; and, (c) offered benefits to aborigines that could have been provided without breaching human rights. 70 the nature of priestly cultus according to sociological theory, the social system has been structured to generate impact without necessarily having to find any authoritative person to fill its official public positions. in this way, domination and power were relations between persons, and, an organised institution was a coherent system of action, regulated in part by these personal relationships. thus, personal influence became transformed within a stable institutional system. weber framed this change using his three interconnected ideas of routinization, rationalisation, and formalisation. 71 he believed that these three processes resulted in the typical ritualism of institutions. the form of rationalisation of traditional authority was the systematic use of ritual procedures in every overt part of society‟s life. formalisation made regular ritual activity purely symbolic, meaning it would consist of beliefs, myths and doctrines. 72 ritualization also occurred in other non-traditional systems, signalling that, in them, the internal justification of behaviour had become partly traditional. 73 on weber‟s account, when the legal structure justified public authority, its leaders such as a judge or prosecutor did not need charisma, on which to base power. instead, this authority had to be based on a systemic precept, such as a procedural doctrine. 74 judicial appointments to the bench were predicated on the judges‟ symbolic and doctrinal standing within the legal profession, and therefore, cognate to priesthood. typically, cultus meant the routinized ritual process, representing internal principles and implications, performed publicly by opaque, or fungible, officials without reference to those hidden meanings. this would suggest such officials were commodified as professionals, their individual personalities being veiled and made irrelevant to their official functions. 70 ibid. 71 donald mcintosh, „weber and freud: on the nature and sources of authority‟ [1970] 35 american sociological review 901, 907. 72 doctrine could be described as a belief or set of beliefs held and taught by a church, political party, or other group. 73 mcintosh, „weber and freud‟ (n 71) 907. 74 ibid 909. australian aboriginal human rights and apprehended bias 160 examples of cultus would include temple service. 75 also, they might include those public systems of ritual procedures of a court of law, such as ritual bowing to the judge, coats of arms on the wall behind the bench, court officials stationed in court with de facto priestly functions, use within the court of a special dialect of the language, the wearing of black robes and sometimes wigs, and the arrangement of the hearing according to prescribed procedural rules. the word “cultus” is not in everyday usage, and for this reason, its investigation might reasonably come from its apparent latin root. there is a comprehensive context of the word “cultus” from the latin, 76 identifying this range of meanings: that which is adored; 77 cultivated or manured; 78 honour or deference; 79 an apparatus of ornamentation; 80 reverence; 81 husbanded; 82 worshipped; 83 occupational; 84 habitual; 85 respected; 86 revered; 87 celebrated; 88 tilled; 89 and, ornate. 90 the term appears to have accommodating facets. this range of meanings allows separation of the term “cultus” into four generic facets. the allurement facet suggests being adored; an apparatus of ornamentation suggests ornateness. it also indicates the presence of rhetorical persuasion by ornamentation. the georgic aspect indicates being cultivated or manured, husbanded, occupational, habitual, tilled. 91 it also suggests seasonal or customary modifications to nature. 75 an example would be the priestly legislation of the tabernacle service. see frank moore cross jr, „the tabernacle: a study from an archaeological and historical approach‟ (1947) 10 the biblical archaeologist 45, 59. 76 john entick, new english-latin dictionary (london: charles dilly 1783). 77 ibid 5. 78 ibid 58. 79 ibid 62. 80 ibid 81. 81 ibid 116. 82 ibid 118. 83 ibid 120. 84 ibid 164. 85 ibid 176. 86 ibid 209. 87 ibid 211. 88 ibid 219. 89 ibid 272. 90 ibid 277. 91 see janet lembke (trs), virgil’s georgics (1st edn, yale university press 2006), in which virgil explained how to cultivate a field to allure bees to the flowers and to the making of honey. the bees were farmed beyond their the denning law journal 161 the status aspect suggests honor or deference, reverence, being respected or revered. all this is suggestive of forces of social hierarchy. the ritual facet suggests being worshipped, celebrated, all inferring a routinized ceremony. 92 in hegel‟s taxonomy of religions, 93 there was a suggestion that foundational religion was incomplete and spiritless unless it included a cultus to display a human comprehension of nature? this taxonomy compared the structure of four versions of determinate religion and included cultus as a necessary element of each example religion‟s structure, 94 conveying spirit to the religion‟s adherents. religious, and other groups united by common patterns of belief and behaviour, showed that any nonconformity indeed would produce a separating conflict. when cultus predominated over theology, ritual nonconformity would be a more serious threat to group stability than would heresy. this was the case within the antique religious world. individual philosophers dominated questions of belief and theology, in ancient polytheism, without any official relationship to the cultus. hierarchies of priests restricted themselves to the operation and maintenance of prescribed ceremonials, 95 sounding somewhat like division into the substantive field and the practice of law. cultus is also used to provide a kind of annulment of any anomaly between the procedural and substantive issues. 96 “the expression “cultus” or “worship” is ordinarily used in the narrower sense of external, public actions; this definition does not lay stress on the inward activity of the soul. the meaning which we shall attach to the word cultus will comprise this inward activity as well as its outward manifestation; this activity is to bring about the rehabilitation of the union with the absolute, and is therefore an inner conversion of spirit and soul. [church] cultus or worship contains, for instance, not only the sacraments, church knowledge. he explained that making the area beautiful, colorful and shady would suffice. 92 see mcintosh, „weber and freud‟ (n 71) 907. 93 peter c hodgson (ed), lectures on the philosophy of religion (university of california press 1984-87). 94 peter c hodgson, „logic, history, and alternative paradigms in hegel‟s interpretation of the religions‟ (1988) 68 the journal of religion 1, 8. 95 massey hamilton shepherd jr, „the early apologists and christian worship‟ (1938) 18 the journal of religion 60. 96 f louis soldan, „hegel‟s philosophy of religion‟ (1886) 20 the journal of speculative philosophy 407, 413. australian aboriginal human rights and apprehended bias 162 rites, and duties, but also the so-called “way of salvation” which is an absolutely inward history and a succession of acts of the soul, a movement which is to take place, and does take place, within the soul.” 97 later, argument will suggest that in court cultus the “way of salvation” consists in a belief that only the court could decide what law was valid, and only the judge could decide whether or not a litigant was reasonable. this substance of reasonableness manifested in a show of loyalty. aggregating a key proposition 98 from theophilus, 99 from clement of alexandria 100 and tertullian, 101 it appeared that the general adherence to, and interweaving of, customs was seminal for public respect for a religious cultus. there was more evidence for this aggregated public loyalty scheme in noting that the ancients derided any religion lacking publicly accepted artistic ornamentation. affluent people preferred to be present loyally at worship within a beautiful edifice. 102 the many went to church only for aesthetic delight while common and ignorant people were induced to attend only by glittering golden, silver, and ivory decorations, suggesting a consecration of avarice. even tertullian had admitted the pagan reasoning for the arts to be the acceptance of enjoyment of all good god-created things offered to men. 103 from this, only by ceremonial and ritual in religious life, were religious practices, attitudes and beliefs articulated to, or joined with, the masses. 104 in consequence, it appeared that reasonable people would find the cultus more acceptable than the inner concepts it represented. similarly, for example, reasonable people would find less authority attributable to the courts, if courts were in small, inauthoritative and unornamented rooms. thus, cultus had an alluring effect on reasonable people to make priestly functions appear credible. this public facet of cultus married cultic functions into acceptable public life, while inner meanings attached to them disappeared into a comfortable absence, veiled of any requirement to explain. 97 ibid 414. 98 shepherd jr, „the early apologists and christian worship‟ (n 95) 71. 99 theophilus of antioch, apology to autolycus (apologia ad autolycum), iii, 4. 100 clement of alexandria, protrepticus (exhortation), 4. 101 tertullian, ad nationes, lib. i & ii (to the nations), i, 10. 102 tertullian, ad uxorem, ii, 8. 103 shepherd jr, „the early apologists and christian worship‟ (n 95) 78. 104 ibid 79. the denning law journal 163 apprehended bias in the english common law world, the concept of fairness in due process subsisted as the precepts of natural justice and procedural fairness, such as for example within magna carta‟s apparent requirment for judgment by the substantive law, 105 but only for freemen. there was a suggestion, in this, of due process being veiled. why not just call it due process? in the 1985 high court of australia case of kioa v west, 106 brennan j referred to lord diplock‟s dictum on the concept of fairness. lord diplock observed as follows in bushell v secretary of state for the environment. 107 “to “over-judicialise” the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers alone are competent to operate effectively in the interests of their clients would not be fair.” 108 thus, unfair meant public persuasion by the professional artifice of over-judicialisation. brennan j went on to state as follows. “nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with 105 magna carta (1297) s xxix: „no freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we not pass upon him, nor [condemn him,] but by lawful judgment of his peers, or by the law of the land. we will sell to no man, we will not deny or defer to any man either justice or right.‟ but consider the meaning of the term „freeman‟ as follows. up to 1835, every person who wished to become a city freeman first had to become a freeman of one of the city livery companies. these were mercantile successors to the medieval trade and craft gilds. the freedom of a livery company was merely an ordinary membership. a person wishing to become a senior member of a livery company had to be first a freeman both of that company and of the city of london. a person who was a freeman of both the city and a livery company was named, referred to, and thus identified as „citizen and [livery company name] of london‟. research guide 1: city freedom archives, vivienne aldous (1990 revised 1996, 1999) publication by corporation of london records office, <http://www.cityoflondon.gov.uk/nr/rdonlyres/155d63ec-c7bf-4b8f-b7d29574c07fe071/0/cityfreedom.pdf> accessed 24 november 2010. 106 [1985] hca 81; (1985) 159 clr 550. 107 [1981] ac 75. 108 ibid 97. australian aboriginal human rights and apprehended bias 164 adverse information that is credible, relevant and significant to the decision to be made. it is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. he will be neither consoled nor assured to be told that the prejudicial information was left out of account.” 109 this veiling of subconscious information would allow procedure to predominate in the law. thus, the judicial commission of the state of new south wales 110 stated, in its procedural manual for judges and complaints against them, that the test for determining if a judge was disqualified for apprehended bias was: “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”. 111 this statement proposed that judges assessed their brother judges‟ public apprehensions of bias. the primary test for disqualification on the ground of apprehended bias was stated by the high court in the 1994 case of webb v the queen, 112 using the code word “reasonable” to suggest a judicially applied objective test, as follows: 109 (1985) 159 clr 550 [38]. 110 „disqualification for bias‟ (judicial commission of new south wales, 15 may 2015) <http://www.judcom.nsw.gov.au/publications/benchbks/civil/disqualification_for _bias.html> accessed 1 october 2014. 111 johnson v johnson [2000] 201 clr 488 [11], affirmed in ebner v official trustee in bankruptcy [2000] 205 clr 337; applied in michael wilson & partners ltd v nicholls [2011] 244 clr 427; distinguished in british american tobacco australia services ltd v laurie [2011] 242 clr 283; see also slavin v owners corporation strata plan 16857 [2006] nswca 71; barakat v goritsas (no 2) [2012] nswca 36. as to the former association of the judge with legal representatives and litigants, see bakarich v commonwealth bank of australia [2010] nswca 43. as to the relevance of non-disclosure to issues of apprehended bias, see whalebone v auto panel beaters & radiators pty ltd (in liq) [2011] nswca 176. as to a party being a member of the trial court, see rouvinetis v knoll [2013] nswca 24. 112 [1994] 181 clr 41 67 (deane j) quoting from livesey v the nsw bar association [1983] 151 clr 288 293–4 (mason, murphy, brennan, deane & dawson jj). the denning law journal 165 “whether, in all the circumstances, a fair-minded lay observer with knowledge of the material objective facts “might entertain a reasonable apprehension that [the judge] might not bring an impartial and unprejudiced mind to the resolution of the question.”„ 113 the compounded nature of this dictum again suggested a veiled substance to fairness. in webb v the queen 114 deane j sought to categorise potentially disqualifying factors into four groups. “the first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. the second is disqualification by conduct, including published statements. that category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. the third category is disqualification by association. it will often overlap the first and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. the fourth is disqualification by extraneous information. it will commonly overlap the third and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias.” 115 the high court of australia redefined the apprehension of bias principle in december 2000 in the case of ebner v the official trustee in bankruptcy. 116 it laid down a method for applying the apprehension of bias principle. this process comprised three steps: (a) identify what it was said might lead a judicial officer to decide a case other than on its legal or factual merits. for example, “the judge has shares in the respondent bank” or “the judge has a brother who is a partner of the solicitor acting for the 113 ibid. 114 [1994] 181 clr 41. 115 ibid 74. 116 [2000] hca 63; (2000) 205 clr 337. australian aboriginal human rights and apprehended bias 166 respondent”. 117 (b) there needed to be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. 118 (c) there needed to be an assessment as to whether a fair-minded observer might reasonably apprehend that the case might not be decided impartially. 119 following logically from this, in 2006, the high court of australia handed down its judgment in forge v australian securities and investments commission, 120 discussing the application of an apprehension of bias principle. three judges of the court said: “in applying the apprehension of bias principle to a particular case, the question that must be asked is whether a judicial officer might not bring an impartial mind to the resolution of a question in that case. and that requires no prediction about how the judge will in fact approach the matter. similarly, if the question is considered in hindsight, the test is one which requires no conclusion about what factors actually influenced the outcome which was reached in the case. no attempt need be made to enquire into the actual thought processes of the judge; the question is whether the judge might not (as a real and not remote possibility rather than as a probability) bring an impartial mind to the resolution of the relevant question.” 121 this altered the view of fairness to how well the judge conformed to the court‟s cultus. the court‟s view in forge v australian securities and investments commission 122 suggested that the principle of articulation stated in ebner v the official trustee in bankruptcy, 123 had been altered to be a fair observer‟s perception of the judge‟s fairness. thus, the principle of apprehended bias meant that if the judge felt that a reasonable observer felt excluded by the adjectival, or cultic, part of the court‟s process, then this observer might attribute to the judge‟s mind a certain unfairness. such a reasonable observer might not coincide with a 117 ebner v the official trustee in bankruptcy [2000] hca 63, (2000) 205 clr 337 para 8. 118 ibid. 119 ibid. 120 [2006] hca 44. 121 forge v australian securities and investments commission [2006] hca 44 (gummow, hayne and crennan jj) [67]. 122 ibid. 123 [2000] hca 63; (2000) 205 clr 337. the denning law journal 167 reasonable aboriginal aggrieved person. this articulation suggested a form of over-judicialisation in operation, per lord diplock‟s dictum in bushell v secretary of state for the environment, 124 rendering a hearing‟s outcome void for apprehended bias. summary the tests for apprehended bias suggested the subsistence of a legally reasonable person. this term would mean a person who was reasonable by virtue of a judicial determination. it appeared that a legally reasonable person would find a cultus more acceptable than the system‟s inner concepts it represented. similarly, for example, a legally reasonable person would find less authority attributable to the courts, if courts were less publicly august, employing less public ornamentation. such ornamentation might include special court architecture, judicial dress and the dialect of english used within the court‟s procedures. thus, cultus had an alluring effect on the legally reasonable person to make courtly/priestly functions appear credible. the principle of apprehended bias meant that if the judge felt that a reasonable observer felt excluded by the adjectival, or cultic, part of the court‟s process, then this observer might attribute to the judge‟s mind a certain unfairness. such a reasonable observer‟s method of attribution would not coincide with a reasonable aboriginal aggrieved person, in the context of the court‟s history of dealing with aboriginal people, discussed above, because such a litigant would not be a legally reasonable person. this articulation indicated a form of over-judicialisation in operation, per lord diplock‟s dictum in bushell v secretary of state for the environment, 125 rendering a hearing‟s outcome void for apprehended bias. since the legally reasonable observer would feel drawn by the court‟s various indicia of ornamentation, making judicial pronouncements plausible, the principle would fail in the case of an aggrieved person from a culture embattled by centuries of war and allegations of genocide, such as for example an aboriginal litigant. this would be because such a litigant could never be legally reasonable. aspects of court cultus would include publicly acceptable narrative not conforming with reason. they would include a preference for established procedure over substantial issues of justice. finally, consider a litigant appearing before a judge, where the judge came onto the bench clearly angry with this litigant, in the absence of any presented evidence, 124 [1981] ac 75. 125 ibid. australian aboriginal human rights and apprehended bias 168 then citing procedure over substantive justice, or suggesting that procedure was indistinguishable from justice. this litigant would apprehend bias. however, the test was whether the judge determined a reasonable observer might apprehend bias. the cultus procedure of the court could remove the litigant‟s choice of determining judicial bias. this abridgment of juridical personality, 126 as an outcome of court cultus, would be a serious defect in reason. the ngurampaa limited case this section discusses the case of ngurampaa limited v brewarrina shire council, 127 in the context of the accumulated findings and suggestions from previous sections. the ngurampaa limited case represents field data, because this section combines the court transcript with personal interviews conducted at court. it assesses the conduct of the case in court in the critical context of the legally reasonable person discussed above. this legally reasonable person perception of judicial bias 126 in respect of a cognate legal environment, germany‟s mass manufacture of concentration camp corpses came after the historically and politically intelligible preparation of what arendt called living corpses. it was intelligible because it followed a plain logic of necessary and catastrophic movements. first was the destruction of the juridical person. then came the murder of the moral person. finally came the destruction of unique identity, the spontaneity through which a person might still call an action „mine‟. it was a necessary and catastrophic process of reducing human persons to animal slavery, and this article investigates the necessity in that process. only that human destruction beginning with obliteration of the juridical and moral personality could create this kind of systemic significance. it was a three-part process of destruction. annihilation of the juridical personality required the deprivation of all civil and political rights. it made some categories of person outside the law‟s protection, through denationalization, and consequently making individuals into outlaws. this meant that the camp inmates were nonagents. they had no capacity for regular or criminal legal action. mostly, these individuals were innocent. they were jailed only for who they were. murder of the moral persons required incapacitation of their consciences‟ operation. for this, the concentration camps made death anonymous. this robbed death of its natural meaning as the conclusion of the fulfilled life. this destruction of individuality began with the removal of all distinguishing characteristics, and it began by sadistic torture, and proceeded with systematic ruin of human bodies. it was calculated to destroy everyone‟s human dignity. six million human beings died in germany during nazi times, but no one could say how many juridical persons perished. hannah arendt, the origins of totalitarianism (meridian 1958) 447, 451, 452, 453, 454. 127 ngurampaa (n 18). the denning law journal 169 would be a construct of the judge‟s mind, rather than the litigant‟s assessment of the judge‟s apprehended bias. thus, the judge would have in mind whether or not a fictitious person, not necessarily present in court at the time, would apprehend judicial bias. the contextual circumstances of the case were as follows. mr eckford was a well-known head of the euahlayi people. he held a rank as senior elder, or ghillar, of the euahlayi people, and also, he was lawman of the euahlayi nation. his functions within his nation represented the consequences of some 60,000 years of human history. mr eckford was, in the early 1970‟s, one of a small group of founders of the aboriginal embassy on the lawns of old parliament house in canberra. this embassy still stands to this day and is accorded measures of diplomatic immunity by the australian government. 128 the lands of the euahlayi nation had been carefully mapped and stretched from inside the state of new south wales across an australian state border into the state of queensland. mr eckford stated that the euahlayi nation had acceded to the statute of rome, had defined land boundaries, routinely conducted international relations and had a fully functional legal system. he asserted that the euahlayi nation had declared its sovereignty in the required forms at international law. the euahlayi nation legal system included lawmen. these were people who were the repositories for maintenance and transmission of the law. it included specific methodologies for transmission of the law over archaeological periods of time, and also, a functioning legislature structure. he claimed an australian continental common law sanctioned by the ancient people 129 subsisted within the lands of the euahlayi nation, from time immemorial, and, foreign occupiers could not extinguish this continental common law, merely by ignoring it. 130 mr eckford argued that, in the mid 1800‟s, british settlers acting for the crown led an unlawful massacre of apparently outlawed members of his society, as well as of some chinese immigrants he claimed were peacefully living in the area at the time. 131 the victims included women, 128 interview with lilienthal (n 23). 129 the rhetorica ad herennium sets out six sources of law: nature; statute; custom; previous judgments; equity; and, agreement. custom is defined in it as that which in the absence of any statute is by usage endowed with the force of statute law, which it defines as law set up by the sanction of the people. cicero, rhetorica ad herennium (harvard university press) 91, 93. 130 interview with lilienthal (n 23). 131 eburn stated that when governor arthur phillip arrived in sydney with the first fleet of colonists, they carried with them „ . . . so much of the english law, as is applicable to their own situation and condition in any infant colony‟; michael australian aboriginal human rights and apprehended bias 170 children and very young babies. the burial site of these victims had been identified as on the said lands and had been duly investigated by generations of euahlayi officials. mr eckford claimed that many descendants of the original perpetrators of the said massacre were now operating the brewarrina shire council, which council was established in or about 1843. also, these descendants were variously holding senior and professional positions in the neighbourhood. 132 he argued further that his people‟s title to the land was indistinguishable from allodial title and that his people‟s nation had held a community form of allodial title over the described lands for some 60,000 years. in any event, they had held this title from time immemorial and had never abandoned the land. nor had they acceded to any suggestion of colourable title to the land by the british settlers. having made this declaration of allodial title, mr eckford argued that the brewarrina shire council illegally had set up a government on his people‟s lands, and purported inter alia to levy taxes on his people. he stated that his people evinced no express public consent to the existence of the brewarrina shire council or its acts. he noted that during the period of administration of the brewarrina shire council, british settlers acting under crown authority had arranged for his people to be forcibly enslaved, from time to time. they removed the children from their parents and transmigrated them long distances away, to be denied rights to their own sources of food and economy. they had arranged for his people to have been subjected to other capricious state of new south wales police actions such as regular deaths in police custody. he noted that these actions were now considered eburn, „outlawry in colonial australia: the felons apprehension acts 18651899‟ [2005] anzlh e-journal 80, 80. also see r v farrell, dingle and woodward [1831] 1 legge 5; mabo v queensland (no 2) [1992] 175 clr 1. neal suggested that although the new english colony of new south wales was to be a penal settlement, it was a society established and governed by law. david neal, the rule of law in a penal colony: law and power in early new south wales (cup 1991). as such, neither the convicts nor the indigenous population were outside the law‟s jurisdiction. r v murrell (1836) 1 legge 72. this meant they were not outlaws. despite this, in 1865 the public and legislature somehow believed that outlawry was indicated to counteract law-and-order crises in the colony‟s remote regions. criminal activities in these remote areas were said to enjoy widespread community support. this led to a public newspaper rhetoric of demands for these people to be placed beyond the law‟s protection. see for example: sydney morning herald, sydney, australia (smh ) 11 july 1864, 4; 12 july 1864, 4; 2 february 1865, 4; 7 february 1865, 4; 6 march 1865, 4. in a way, it appeared like an abdication of the english claim to rule these remote regions. 132 interview with lilienthal (n 23). the denning law journal 171 to be crimes against humanity. 133 he further alleged that, by occupying his people‟s lands with a government, those people now operating the brewarrina shire council were committing continuing criminal trespass, as well as civil trespass, accumulating a huge quantum of damages. to date, they had no lawful authority to be on the said lands, and therefore could not purport to operate a government on the lands. 134 by way of jurisdictional analogy, stern reviewed california courts‟ treatment of the foreign law of an antecedent foreign government. he cited ohm v san francisco, 135 where the court stated that the foreign law of an antecedent foreign government “was deemed to be the law of its successor government to the extent to which the old law has created property rights, affected status or continues to be in force”. 136 stern suggested that this antecedent law would be subject to judicial notice to 133 for assessing the veracity of this proposition, see „rome statute of the international criminal court‟ (united nations: treaty collection, 11 august 2015) <https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=xviii -10&chapter=18&lang=en> accessed 7 october 2014. for the purpose of this statute, „crime against humanity‟ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) murder; (b) extermination; (c) enslavement; (d) deportation or forcible transfer of population; (e) imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) torture; (g) rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the court; (i) enforced disappearance of persons; (j) the crime of apartheid; (k) other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. 134 interview with lilienthal (n 23). 135 (1891) 98 cal 437. 136 william b stern, „foreign law in the courts: judicial notice and proof‟ (1957) 45 california law review 23, 24. australian aboriginal human rights and apprehended bias 172 this extent and would be provable as fact, 137 and as such, mr eckford claimed that the aboriginal law was still in force, with community adherents. 138 some time before, mr eckford had commenced a substantive action in the supreme court of new south wales. his action pleaded for a prerogative order in prohibition, to effectively stay a decision of a state of new south wales magistrate to uphold the shire council‟s taxing of the euahlayi people on their own sovereign lands. as part of this substantive action, mr eckford issued a subpoena to the brewarrina shire council to produce to the supreme court any deed, or any other kind of document, that showed the allodial title to the lands of the euahlayi people had been lawfully transferred to the british crown in right of the state of new south wales, or to any other person, in such a way that they could exercise any sovereignty over the euahlayi nation. mr eckford alleged that, in any event, were such documents to be produced to the court, any such transfer thereby evidenced would be void for illegality, by virtue of the massacres referred to above. 139 the subpoena‟s inherent assumption, that no such land title transfer had taken place, would mean mr eckford did not subscribe to the state‟s jurisdiction over his lands. this would exclude him as a legally reasonable person in the judge‟s mind. thus, mr eckford‟s apprehension of judicial bias would, at the outset, be irrelevant to the court. the barrister for the brewarrina shire council, mr bell, submitted to the court, and also confirmed to those attending at court that no such documents existed. 140 in consequence of this, mr eckford argued that the brewarrina shire council had no power of taxation over the euahlayi nation. 141 this suggested that there was no deed of transfer of title, no deed of cession, or no deed of surrender to any acts of war. mr bell‟s statement strengthened the view that whoever owned the lands at the time of colonisation, had passed the land to their heirs, or had otherwise alienated the land. mr eckford claimed the lands were not alienated to any person, as that would be impossible under transmitted aboriginal systems of law and spirituality. 142 the action was an application by the brewarrina shire council to strike out mr eckford‟s subpoena, described as above, on the grounds that 137 ibid. 138 interview with lilienthal (n 23). 139 ibid. 140 ibid. 141 ibid. 142 ibid. the denning law journal 173 mr eckford was not a solicitor and that the subpoena was generated for a collateral purpose. a number of exchanges took place between mr eckford, mr bell, mr byers from the crown solicitor‟s office, and the judge. mr eckford appeared for the plaintiff, by leave of the court. 143 the judge canvassed the issue of this leave, referring to an unspecified court rule, rather than a specific grievance. mr eckford was the chairman of an aboriginal corporation and argued that, as such, no non-aborigine solicitor representative would be acceptable to his nation. the judge opined that since the company was a registered corporation under australian law, the rule applied, suggesting representation by an officer of the court would be mandatory. mr eckford stated that the company has asked him to represent it, and the judge relented, without articulated reasoning, giving qualified leave for mr eckford to appear. 144 it appeared the judge gave procedural leave so that mr eckford‟s subpoena could be struck out without an appealable ex-parte hearing. mr eckford submitted to the court that the matter was about very serious matters in issue. the judge rebutted this by holding that the only context that mattered was independent of any more fundamental underpinning matters. his honour went on to say that only the argued irregularity of the subpoena mattered. 145 this holding was a preference for procedure over substantive law, an indicium of cultus in operation. mr eckford argued that brewarrina and the crown were avoiding substantive argument by limiting the court to procedural matters. inferring irrelevance of the substantive issues, the judge asked only for submissions relevant to the interlocutory decision about the subpoena. 146 after mr eckford had alleged that mr byers unlawfully electronically recorded their conversation, the judge asked mr byers what he would say in the witness box if he were asked whether he used a recording device. mr byers failed to deny that allegation, but said he took file notes. mr eckford asked if he knew shorthand. the judge terminated this discussion summarily and said he thought mr byers was going to ask leave to strike out paragraph 16 of the crown‟s affidavit. mr byers agreed with the judge. the judge stated that what mr byers said appeared entirely consistent with the usual practice of solicitors in their taking of file 143 supreme court of nsw transcript ngurampaa limited v brewarrina shire council [2014] nswsc 524 1:10. 144 ibid 3:20-30 4:15. 145 ibid 7:25-35. 146 ibid 8:5-25. australian aboriginal human rights and apprehended bias 174 notes, 147 thus avoiding analysis, by resort to mere characterisation of propriety in procedure. mr bell alleged the subpoena was issued improperly. the judge corrected him and suggested it was issued irregularly. 148 mr bell submitted that since there were no proceedings to determine the allodial title of the land, the wording of the subpoena was irregular. the logical error in this was a cultus view that no one had owned the land before british colonisation. this was a continuation of the doctrine of “terra nullius”, by which aboriginal people were so far down the social scale, that their land title didn‟t matter. this was indistinguishable from the operation of a court cultus. the judge suggested that mr eckford was using the subpoena in this way for a collateral purpose. his honour continued that even if mr eckford had allodial title, that would not necessarily exempt the land from the state government‟s jurisdiction. 149 this holding allowed for the possibility that it might so exempt the land. the judge omitted to followup on this reasoning, leading to an apprehension of bias in an observer. mr bell submitted that it was difficult to determine what documents to produce. 150 mr byers changed the issue and submitted that the court had power under the rules, namely, rule 36, 151 whereby the court could grant all appropriate relief whether sought or not. the judge agreed but said he would be slow to exercise this general power without a motion to that effect. 152 thus, the judge stated he would be prepared, albeit slowly, to grant relief whether or not it was sought. the judge entertained an undisclosed system by which the court would grant unsought relief, a veiled system of cultus inhering within the court. as reasoned above, this would infer bias, and therefore imply apprehended bias. mr eckford submitted that the new south wales government and the brewarrina shire council both must show when the land was transferred to them, for purposes of conducting a government by legitimate process. he referred to high court of australia case law stating that aboriginal people did have proprietary interests in land, which continued pursuant to aboriginal laws and customs. the judge then held that, in as much as traditional law was ever picked up by the australian common law, any 147 ibid 11:10-45. 148 ibid 16:40-45. 149 ibid 17:20-50. 150 ibid 19:5-25. 151 this appears anomalous, as r 36 of the supreme court rules has been repealed. 152 ngurampaa transcript (n 143) 20:30-35. the denning law journal 175 allodial title would subsist under australian law, and not under aboriginal law. the judge ignored the high court of australia case law, implying that the court‟s cultus could override the doctrine of stare decisis. mr eckford stated his disagreement, referring to the 1888 case of st. catherines milling and lumber company v the queen 153 in the privy council in england, cited in mabo and others v queensland (no. 2), 154 a canadian case. 155 mr eckford continued that the case was authority for the proposition that aboriginal title survived british sovereignty, and in fact, burdened crown title. mr eckford argued that this burdened the crown to prove its title to any proprietary rights the land. the judge asked mr eckford if his argument about council‟s power to tax the property depended upon the validity of unilateral declaration of independence by the euahlayi nation. he apparently ignored the fact that it was independent for thousands of years before british occupation, and didn‟t need to prove its bona fides to occupiers ignorant of local history. 156 the judge held, without hearing further discussion on the point, that the council was not acting as a feudal proprietor. it acted with the statutory authority of the local government act, a state of new south wales statute. this interesting holding, without the hearing of evidence, implied that a hierarchy of governments was not a feudal structure. his honour reasoned that since councils in sydney did not prove their title to sydney householders, neither should the brewarrina council on mr eckford‟s lands. 157 however, his honour had just admitted that councils routinely failed to prove their title to operate governments on the lands. apparently they felt they could operate governments by virtue of agreements between governments, the details of which appeared to have been veiled to the governed. the judge asked mr eckford if he accepted that traditional title operated by common law, and not by aboriginal law. mr eckford identified this as a contested issue. the judge argued that this ran counter to chief justice mason‟s dictum in walker v state of new south wales, 158 whereby all people should stand equal before the law . . . . 159 this proposition ran counter to reason, as traditional title would first operate by tradition. 153 [1888] 14 ac 46. 154 (1992) 175 clr 1. 155 ngurampaa transcript (n 143) 23:30-50. 156 ibid 24:5-45 25:5-15. 157 ibid 26:40-50. 158 (1994) 182 clr 45. 159 ngurampaa (n 18) 31. australian aboriginal human rights and apprehended bias 176 discussion and conclusions according to the article‟s discussion on cultus, a reasonable extrapolation may be made. if religion and the court systems similarly each had their cultus, in order to maintain both priesthood and public loyalty as instruments of governance, rather than the substantive law of the land, then anything unreasonable these priests did could be nullified, on certain conditions. in this argument, the state could comprise its religions as well as its other constitutional instruments of governance. if the state was to commit genocide, this could be nullified, provided public loyalty to the cultus was maintained. lord diplock‟s opinion on fairness suggested that overt resort to the court‟s cultus would constitute apprehended bias. allowing a doctrine of a legally reasonable observer, therefore, facilitates the required nullification. the concept of legally reasonable observer is in reality the nullification discussed in this argument. provided public loyalty holds good, apprehended bias could continue without remark. the pagan concept of loyalty serves to the same effect as the “way of salvation”, because why sacrifice the system if it saves you, but not others. in this instance, aboriginal australians have no equivalent to the doctrine of the “way of salvation”, and many are not loyal to the british-australian system of justice. this means they have neither status as legally reasonable people, nor a method of cultically nullifying state acts of genocide. for them, genocide remains a serious and unaddressed grievance. in ngurampaa limited v brewarrina shire council, 160 there was no procedural right by which serious crimes against humanity could be addressed in the court. the judge gave leave for mr eckford‟s appearance, the natural consequence of which was that the court‟s procedure could continue and deny mr eckford any relief. suggesting that unlawful occupiers, relatively recently arrived, could force long-term ancient owners to prove their title, from time immemorial, seemed specious at minimum. asking the litigant if he recognised the principle that all people stood as equals before the law could only be seen as a petitio principii, or suggestive that in the judge‟s mind mr eckford was not a legally reasonable person. were this true, the judge would have made decisions according to partially-veiled cultus rules, and would have been of the view that there was no apprehended bias. should designating mr eckford as not a legally reasonable person be applicable in general to aboriginal claims of genocide, then the operative australian court cultus acted to abridge the juridical personality of a 160 ngurampaa (n 18). the denning law journal 177 whole culture of people, including their rights to practice their religious procedures and faiths. it would be over-reaching to claim that aboriginal people could claim magna carta protection as freemen, as the concept of the english freeman, as a member of a livery corporation, is foreign to the continent of australia. this abridgment of juridical personality is a serious defect in judicial reasoning, as it could breach the international law against slavery. restraining the exercise of corporate statutory powers peter jaffey* introduction much recent debate on company law has concerned the issue of contractual freedom: to what extent should the rights and duties of the shareholders and the directors inter se, in the memorandum and articles and in other contracts betwen them, be a matter to be determined by agreement between the parties, rather than being stipulated by law? when should company law merely provide "default" or "background" terms and when "mandatory" termsl? where no mandatory term applies, it is also necessary to consider what provision should govern alteration of terms. alteration will often be desirable, but to require the consent of all the shareholders may not be practicable; on the other hand to allow alteration without unanimous consent creates the possibility that an alteration may be made that, without any quid pro quo, adversely affects a shareholder's interests2• under the companies act 1985 (and previous acts), the alteration of provisions of the memorandum and articles is governed by a number of ' 'statutory empowering provisions", which confer powers on the company to effect particular alterations. these include s.9, which provides for alterations of the articles by special resolution, s.4, which provides for alteration of the objects by special resolution, s.121, which provides for alteration of the company's share capital by ordinary resolution, and s.135, which provides for a power to reduce share capital by special resolution. how are these statutory provisions to be understood? to what extent are they to be interpreted as mandatory provisions, which invalidate a provision purporting to exclude or modify the power, rather than default provisions, which leave it open to shareholders to reach different arrangements governing the alteration of provisions of the memorandum and articles? this issue, and in particular the validity of various types of restriction on the exercise of a statutory power, is the main subject of this article. * department of law, brunei university. i am grateful to chris ridley, len sealy, fiona padfield, loraine watson and brian davenport for their comments on a draft of this article. i. a default term is a term that applies subject to contrary agreement, like provisions in table a (see companies act 1985 s. 8(2»; a mandatory term applies irrespective of contrary agreement, like the statutory provisions imposing directors' duties. see eisenberg (1989) 89 colum. l. rev. 1461 at 1463. the different positions on the debate on freedom of contract are summarised in bebchuk (1989) colurn. l. rev. 1395; and see generally the november 1989 issue of the columbia law review. see also riley (1992) 55 m.l. r. 782. 2. or at least denies a shareholder the right to judge for himself whether the alteration is against his interests. 67 http://www.ingentaconnect.com/content/external-references?article=0010-1958(1989)89l.1461[aid=6655170] http://www.ingentaconnect.com/content/external-references?article=0010-1958(1989)89l.1461[aid=6655170] http://www.ingentaconnect.com/content/external-references?article=0010-1958(1989)89l.1461[aid=6655170] the denning law journal a provision purporting to override or modify a statutory empowering provision might arise in a variety of forms. first, it might appear in the memorandum or articles themselves. a provision of the memorandum or articles might purport directly to exclude the power, or to modify it, for example by providing that an ordinary resolution rather than a special resolution is sufficient for the exercise of the power; or the memorandum or articles might confer a class right on one or more shareholders, purporting to make a provision of the memorandum or articles immutable except in accordance with the agreement of the class; or the articles might purport to allocate "weighted voting rights' , in respect of the power so as to give particular shareholders effective control over its exercise. secondly, a provision purporting to override or constrain the exercise of the power might appear in an extrinsic shareholders' agreement between some or all of the shareholders restricting the shareholders' freedom to vote on a resolution to exercise the power. thirdly, such a provision might appear in the form of a contractual undertaking by the company not to exercise the power, and such an undertaking might be in a contract with a shareholder, or with an outsider. some of these issues were at stake in the recent and much discussed case of russell v. northern rank3• in russell, the issues were whether a shareholders' agreement was invalid if it purported to prohibit the shareholders from voting on a resolution to exercise the statutory power to increase share capital under s.1214, and whether an agreement by the company itself was invalid if it purported to prohibit the company in general meeting from exercising the power under s.12j5. thus the question was whether s.121 was mandatory, although the house of lords did not express it in this way. in this article most of the discussion will relate to s. 9, which is treated as analogous to s .121 and the other provisions conferring powers of alteration. on the other hand, as will be considered below, s.303 of the companies act 1985, which confers on the general meeting a power to remove a director by ordinary resolution, is quite different from the provisions concerning alteration, although some discussion of these provisions appears to have relied on an analogy with it. interpreting the statutory empowering provisions three interpretations of the statutory empowering provisions the statutory empowering provisions could, first, be interpreted as mandatory. on this basis they are designed to prescribe a certain appropriate degree of flexibility for the alteration of the terms of the memorandum or articles, preventing the shareholders from excluding change altogether, and at the same time preventing them 3. [1992] 1 w.l.r. 588, [1992] 3 all e.r. 161. the notes and articles on russell v. northern bank include riley [1993] n.i.l.q. 34. shapira (1993) 109 lqr 109, savirimuthu (1993) 14 co law 137, sealy [1992] c.l.j. 437, davenport [1993] l.q.r. 553, ferran [1994] c.l.j. 343. 4. in fact the relevant provision in northern ireland was art. 131 of the companies (northern ireland) order 1986, which corresponds exactly to s.121. 5. davenport, above note 3, at p.557, argues that strictly only the first issue was before the house, because on the second issue the parties were agreed on the law; cf ferran, above note 3, pp.348-350. 68 restraining the exercise of corporate statutory powers from providing for change to be too readily effected by contrary agreement in the memorandum and articles or by extrinsic agreement. on this interpretation, the terms of the articles or extrinsic agreements involving the shareholders or the company are invalid if they have the effect of excluding or in some way qualifying the arrangements for alteration set down in the statutory empowering provision. secondly, a statutory empowering provision might be understood as "enabling"6 in the sense that it is intended to give the company a power that, it is presumed7, the shareholders would not or might not otherwise have been able to create simply by agreement embodied in the memorandum or articles, but not to stipulate how the power should be controlled. if a statutory empowering provision is enabling in this sense, it does not frustrate its purpose to treat it entirely as a default provision, subject to contrary agreement between the shareholders, either in the memorandum or articles or in an extrinsic agreement. thirdly, a statutory empowering provision might be understood as principally enabling, but mandatory only to the limited extent that it is designed to prevent shareholders from making it any easier to exercise the powers, but without precluding arrangements designed to exclude the power or restrict its exercise or give particular shareholders a veto or greater influence to prevent its exercise. this article will be concerned only with restrictions on the exercise of statutory powers, and so for the most part it will not be necessary to distinguish between the second and third interpretations. which is the best interpretation? the mandatory interpretation is perhaps ostensibly the most apt. in a couple of early cases concerning provisions in the articles purporting directly to override the statutory power of alteration, the judges assumed without discussion that this interpretation was correct. in walker v. london tramways9 the articles contained a provision purporting to make a certain provision of the articles unalterable. in a judgement reported in five lines, jessel m.r. simply stated that' 'no company could contract itself out of [the statutory empowering provision] ". similarly, in ayre v. skelsey's adamant cement company 10 , kekwich j. held that a provision of the articles purporting to require a four-fifths majority for a resolution to alter the articles was ineffective in ousting the statutory provision, and the company could still alter 6. the expression is used in eisenberg (1989) 89 colum. l.r. 1461, but not in quite the same sense. 7. why this might be presumed will be considered in the next section below. 8. for example, by allowing for alteration by ordinary resolution rather than special resolution, or by giving control over the power to particular shareholders or even to the directors. "easier" is vague, but it is not necessary to pursue the issue here. 9. (1879) 12 ch. d. 705. ]0. (1905) 20 t.l.r. 587. 69 http://www.ingentaconnect.com/content/external-references?article=0010-1958(1989)89l.1461[aid=6655170] the denning law journal the articles in the normal way by a special resolution with a three-quarters majority i i. however in none of the cases was there any discussion ofthe purpose of the statutory provisions concerning alteration, or any recognition of the possibility that they might be enabling. to the modern eye, it appears that a statutory empowering provision that is purely enabling is superfluous. under the modern approach company law is regarded as a regime that merely recognises the company as a separate entity whose members may have limited liability, and creates the framework for a set of terms to be agreed between the shareholders, subject to certain overriding mandatory terms if necessary to protect particular interests of shareholders or othersl2• on this approach a statutory empowering provision seems to be unnecessary if it is not intended to be mandatory. but the nineteenth century context in which the provisions were originally enacted can possibly explain why the provisions may have been intended as enabling. before the introduction of registered companies, incorporation was achieved only through an act of parliament or by the exercise of the royal prerogative, and under the rather nebulous concession or privilege theory a body so incorporated appears to have been understood as a sort of quasi-governmental body or emanation of the state, whose constitution was a matter to be determined by parliament or the crown in the public interest rather than by the private agreement of the participants in the venture 13 , this was appropriate for bodies that exercised quasi-governmental 11. like jessel m.r. kekwich 1. regarded the special provision for alteration as a" [regulation] which attempted to evade the provisions of the statute", and the proposition that it was invalid was" so directly conformable to first principles that it really required no elucidation". he also relied in part on re peveril gold mines ltd ([ 1898] i ch. 122), but in this case the issue was not whether an article could be made una]terable, but whether the company could by a provision of the articles exclude the shareholder's right under the statute to apply for winding up. the court suggested that the statutory provision was mandatory because it was for the protection of shareholders and that a shareholder should be protected against' 'an attempt to remove a statutory safeguard of the inexperienced intending shareholder": [1898] 1 ch. 122 at 126, per byrne j, approved by the court of appeal. see also the more recent case of bushell v. faith, where russell l.j. said, obiter, in the court of appeal: "an article in terms providing that no alteration shall be made without the consent of "x" is contrary to [s.9] and ineffective ... " there is another line of cases (including russell v. northern bank) which are concerned with the effect of a statutory empowering provision on extrinsic contracts by the company purporting to exclude or restrict the exercise of the statutory power, where the same assumption seems to have been made. these will be considered below. 12. and with provision for default rules to apply in the absence of agreement. this approach may be referred to as the nexus of contacts approach, in contradistinction to the concession or privilege approach considered below. 13. for recent discussion of the nexus of contracts approach and the concession approach, see parkinson, corporate power and responsibility (clarendon, 1993) p.25; stokes, "company law and legal theory", in legal theory and the common law, ed. twining (1986); easterbrook & fischel, the structure of corporate law (harvard university press, ]991) pp.8-22. see also formoy, the historical foundations of modem company law (sweet & maxwell, 1923) p.57. and with particular reference to the issue discussed here, see riley, above note 3, at pa2. the distinction adopted in the text is that the nexus of contracts approach presupposes that the law is designed to promote or protect the private interests of the human participants in the company subject to specific rules to protect other interests, including in some respects the public interest, whereas the concession theory presupposes that the company is a public body in the administrative law sense and that company law is designed generally directly to promote the public interest. 70 restraining the exercise of corporate statutory powers functions like the regulation of trade or the administration of foreign territory. when incorporation began to become readily available to entirely private undertakings, it appears initially still to have been considered necessary that the state should examine and approve the purpose of the undertaking and the terms on which it was to be carried onl4• the statutory power to alter the aticles by special resolution appears to be derived from provisions in the same form in the deeds of settlement of unincorporated joint stock companies 15• in a deed of settlement, under the general law of contract, there was no restriction on the terms that could be agreed between the parties concerning alteration. the first companies act of 1844, which conferred legal personality on a deed of settlement company once its deed had been submitted to the registrar of joint stock companies, simply imposed a requirement of notification to the registrar of any alteration of the articlesl6. but the companies act 1856, which was "the first to introduce companies constituted in the modern manner by memorandum and articles of association" i?, included a provision in the modern form providing for alteration of the articles by special resolution 18. why should this act, which was designed to facilitate the formation and operation of the existing, and well-established, joint stock this distinction is sufficient for the argument in the text and appears to reflect the way in which the expression "nexus of contracts" is often used (although it may not do justice to the economic theory in the context of which the expression was devised, apparently by jensen & meckling 3 j. fin. econ. 305 (1976): see the articles cited in note i above.). on this view the nexus of contracts theory is not inconsistent with the presence of mandatory terms to protect the private interests of paticipants in the company, or the public interest, although the expression has been particularly popularised by proponents oflaw and economics who tend to be averse to mandatory terms, at least to protect the interests of participants: see bebchuk (1989) colum.l.rev. 1395 at 1408, and (1989) 102 harv.l.rev. 1820. 14. for example, formoy, above note 13, at p.57, says in connection with the letters patent act, which predated the registered companies legislation and was' 'intended to obviate the inconvenience and expense of applying to parliament for a private act . . ." by enabling an unincorporated company to sue and be sued in the company name, that "as all companies were compelled to apply to the crown for letters patent a responsibility was in some degree thrown upon the advisors of the crown, who, as the right of suing and being sued was taken to be a privilege, came to be considered as judging, in some degree, of the expediency of the undertaking". and formoy quotes bellenden ker in the report on the law of partnership, 1837, making the following suggestion: •• [t] the powers to be granted in all charters and leiters patent giving limited responsibility, &c., should be clearly defined and set forth so that the several powers to be granted and all conditions as to registry and transfer of shares might be at once referred to in the letters patent or charters. this measure would leave to the advisors of the crown merely the consideration of the expediency of granting the privilege sought without the inconvenience of considering in detail the effect of the different provision which parties had inserted in the drafts of their proposed charters; it would have the effect, also, of very materially abridging the length of the charters or letters patent. and, further, by the powers and provision being uniform, wherever it becomes necessary to submit them to judicial interpretation, the decisions of the court would apply to the whole class, and would have the effect of forming a uniform system of construction applicable to all similar instruments. " this view was presumably one of the reasons behind the model set of default articles. ker's argument for mandatory terms is echoed, in the language of contemporary law and economics, in gordon's "public good" hypothesis: (1989) 89 colum.l.rev. 1549 at 1567. 15. for a reference to such a provision, see baily v. british equitable assurance co [1904j i ch. 374 at 375, 384. 16. s.io companies act 1844. 17. formoy, above note 13, p.123 18. s.33 companies act 1856. 71 http://www.ingentaconnect.com/content/external-references?article=0010-1958(1989)89l.1549[aid=6961613] the denning law journal company by conferring limited liability as well as separate personality, introduce a provision apparently imposing a term on shareholders in respect of a matter on which they had previously been free to reach their own agreement? on the concession approach, the draftsman might have considered, even if the notion that the terms on which the enterprise was to be carried on were to be officially evaluated had become a fiction, that alteration of the terms of the memorandum and articles as originally registered (and in theory approved) required an enabling statutory power, and that a provision in the memorandum or aticles themselves providing for alteration would be ineffective 19 • if it were really appropriate to apply the concession theory, one would expect statutory provisions to be mandatory rather than default provisions, but one would not expect the shareholders to have a power of alteration to be exercised in their own interests. from the very start, however, the terms of the articles were a matter entirely for the shareholders to determine, and the philosophy expressed by lord watson in welton v. saffery appears to have taken hold: "the truth is, that all these20 are domestic matters, in which neither creditors nor the outside public have an interest, and with which, in my opinion, it is the policy of the legislature not to interfere. ' '21 in the light of this approach it is appropriate to interpret a statutory empowering provision, which affects only the interests of the shareholders, as enabling22• in the first full companies act of 1862, the position of the memorandum was very different from that of the articles. the provisions of the memorandum were incapable of being altered except in the respect that the share capital could be increased23• this may have been because, under the influence of the concession theory, it was considered that at least the characterising features of a registered company should not be open to alteration once they had been formally approved in the registration procedure24, or because it was considered necessary in order to protect specific interests of 19. if it was intended to have any mandatory effect, it seems most likely, in the light of the approach to the memorandum, which was made largely immutable, that it was intended to prevent excessively relaxed rather than excessively restrictive provisions for alteration i.e. the third interpretation mentioned above. if, in the absence of a statutory provision, there would be no power of alteration at all, it is a reasonable interpretation that a statutory provision for alteration by special resolution should be understood as a provision enabling the company to alter its articles either by special resolution or by any agreed procedure that is no less restrictive. 20. lord watson was referring to the distribution of surplus assets on a winding up. 21. [1897] a.c. 299 at 309. 22. another possibility is that the statutory power to alter the articles was considered necessary, even though enabling, to qualify the other provisions of the statute that required a statement of the provisions of the articles without referring to any possibility that such provisions could be open to change. and gower, principles of modem company law (5th ed., 1992) (referred to below as "gower") at p.534, suggests that a power in the articles might have been regarded as ineffective, and a statutory provision necessary (as an enabling provision), on the ground that the relationship with a shareholder based on an issue of shares rather than original subscription might have been held to be governed not by the statutory contract but only by the separate terms of issue, and therefore not subject to alteration in accordance with a power in the articles. nowadays a contract of issue of shares would be taken necessarily to incorporate the aticles; a contract failing to do so would not constitute the contractor a shareholder. 23. joint stock companies act 1862, s.12. 24. gower, p.14. 72 restraining the exercise of corporate statutory powers shareholders or creditors25• in either case, because of the original presumption against alteration, it is very easy to interpret statutory empowering provisions subsequently introduced, and the original provision for the increase of share capital in its context, as enabling provisions that were not designed to preclude contrary agreement, or at least contrary agreement to have a stricter rule for alteration. there is no reason why the introduction of a power of alteration previously withheld from shareholders should necessarily be understood to deny them the freedom to impose restrictions on its exercise if they so wish26. weighted voting rights if a provision were intended to be purely enabling, one would expect it simply to confer the power on the company and leave it for the memorandum or articles to specify the conditions and procedure for its exercise. in fact the provisions generally require a special resolution of the general meeting. this may indicate a mandatory rationale or it may simply indicate that in pursuing an enabling rationale the draftsman overlooked the possibility that shareholders might wish to provide for a different arrangement for the exercise of the power, and simply assumed that shareholders would not in practice have any reason to depart from this standard form of the provision. on the other hand if a provision is to be mandatory, one would expect it to be exhaustive, in the sense that it specifies completely the conditions for exercise of the power. in fact, in an important respect the provisions are apparently not exhaustive, since they do not expressly provide for the allocation of votes on the exercise of the power, and this leaves open the possibility of weighted voting rights that give particular 25. in ashbury railway carriage and iron company v. riche (1875) l.r. 7 h.l. 653, where the house of lords established the ultra vires doctrine, the house was influenced by the fact that the objects clause was incapable of being altered. although the house said that the immutability of the clause and the ultra vires doctrine were designed to protect the interests of existing shareholders and creditors of the company (per lord cairns l.c., at p.667, per lord hatherley at p.684, 687) in fact the speeches were more strongly influenced by the idea, attributable to the concession theory, that because the company owed its existence to the statute its inherent powers were necessarily limited to those expressly granted (per lord cairns l.c. at p.670, per lord chelmsford at p.678, per lord hatherley at p.686). blackburn j., in a lower court in ashbury (law rep. 9 ex. 263, considered in the house of lords at (1875) l.r. 7 h.l. 653 at 677, 685), took the view that the objects clause did not limit the inherent full capacity of the company. his view appeared to be that the registered company was to be understood as a partnership or unincorporated joint stock company (having full contractual capacity) on which had been grafted a separate personality and limited liability, a view in keeping with the nexus of contracts rather than the concession approach. blackburn j.'s view has eventually prevailed, following the latest reforms: see companies act 1985 s.35. with the rejection of the doctrinal impediment to alteration, and the recognition that the availability of a power of alteration will not prejudice shareholders and creditors, almost all the provisions of the memorandum are now capable of being altered, although, as a "relic of the time when ... [memoranda] were generally unalterable" (gower, p.532) s.2(7) still provides that the memorandum may not be altered except as provided in the act. 26. 5s.121 and 135 are expressed to apply only "if ... authorised by [the company's] articles". thus the issue is whether a provision in the articles that purports to exclude the power or make it subject to additional restrictions is effective and whether the alteration of this provision can itself be precluded or made subject to restrictions, notwithstanding s.9. 73 the denning law journal shareholders extra influence on the decision to exercise the power. one might argue that a certain allocation of voting rights should be taken as implicit in the statutory provisions: for example one vote per share, or votes in accordance with nominal share value. but the use of weighted voting rights is one of the means open to company draftsman to adjust the rights of participants in the company, and in the absence of express provision it is difficult to say that there is a standard allocation of voting rights that the statutory empowering provision my be taken to have implicitly prescribed27• this issue arose in bushell v. faith28, which concerned the statutory power to remove a director, now contained in s. 30329 • the statutory provision empowered the general meeting to remove a director by ordinary resolution "notwithstanding anything in [the company's] articles or in any agreement between [the company and the director] ". the defendant had sought to secure his position as director, despite s.303, through a weighted voting provision that gave him three votes per share instead of one on a resolution to remove him under s.303. the issue was whether the weighted voting provision was effective on a resolution under s.303. the house of lords held that the provision was effective, but the decision was bitterly criticised in some quarters30• unlike the provisions for alteration of the memorandum and articles the statutory provision in s.303 is evidently mandatory; it is expressed to override contrary agreement in a service contract and in the articles31, and it was clearly intended to abolish secure lifetime directorships. but s.303 is flawed (given its apparent objective) in not providing for voting rights on the exercise of the power. in the absence of express provision concerning voting rights the house of lords considered itself bound to apply the usual rule that voting rights may be prescribed by the articles. this makes the statutory power merely a formal mechanism for removal, control over which may be manipulated by the articles. a provision for a mandatory power of removal should stipulate who is to control the power, and so should include provision for voting rights32• the comparison with 27. one might argue that as a matter of fairness there should be one vote per share, or that the number of votes per share should be proportional to the nominal value of the share. but, in theory at least, a prospective shareholder will value a share in the light of its voting and substantive rights, and so no injustice is done by an uneven allocation of voting rights. there is an argument of economic efficiency in favour of the number of votes being proportional to the financial interest conferred by the shares (reflected in the proposed fifth ec directive on company law (o.j. c240 9.9.83 p.2) which provides by article 33 that voting rights shall normally be proportional to subscribed capital). on an issue for decision by shareholders the decision is most likely to promote the objective of maximising the company's profits overall if the influence of shareholders is proportional to their respective financial interests: see easterbrook and fischel, above note 13, p.73. 28. [1969] i all e.r. 1002. 29. the provision was actually in s.l84 companies act 1948, but will be referred to as s.303. 30. see schmitthoff [1970] j.b.l. 1. 31. it was not introduced as an enabling provision in the sense discussed above, because it was clearly possible, and no doubt generally the case, for the articles to provide for removal of a director, as is recognised in s.303(5). 32. bushell v. faith appears to have involved a quasi-partnership company, where it is now accepted under the s.459 jurisdiction that a shareholder has a "legitimate expectation" to remain as a director: see below, text following note 99. 74 restraining the exercise of corporate statutory powers s.303 and bushel v. faith does not, however, cast much light on the interpretation of the statutory provisions concerning alteration. the case demonstrates that a mandatory provision ought to include provision for voting rights, but at the same time provides an example of a statutory provision clearly intended as mandatory but perversely drafted without such provision. class rights it is clear that the statutory powers of alteration are subject to contrary provision where the articles provide for class rights. under the present law, s.125 of the companies act 198533 provides expressly that provisions of the memorandum or articles that confer class rights on a shareholder or class of shareholders may not be altered except in accordance with the statutory procedure, which is, generally speaking, the passing of a class resolution by a three-quarters majority (or in the case of a class of one person, the consent of that person). it appears to be a controversial matter whether, before s)25 (or its statutory predecessors) was enacted, the statutory power of alteration of the articles was subject to the limitation that it could not be exercised so as to remove class rights that is, whether or not the statutory empowering provision was mandatory in this respect. gower's understanding of the position is consistent with the view that the statutory provision for alteration is subject to contrary provision. he says that class rights were previously immutable except in accordance with a provision in the articles for their alteration, and that the effect of s.125 was principally to create a power of alteration where the articles contained no such express provision34• however it was apparently a commonly held view that, before the introduction of s.125, class rights could be altered in the normal way by the exercise of the statutory power by the shareholders as a whole35• the view is difficult to accept, because the very existence of classes of shareholders that is, shareholders with common interests in the company that differ from those of other shareholders 33. 5.9 is expressed to be .. [s]ubject to provisions of this act". 34. gower, p.535. furthermore the provision for alteration in s.125 is expressly (subject to exceptions) a default rather than a mandatory provision, since by s.125(4) and (5), it expressly recognises the effectiveness of provisions in the articles that impose different requirements for alteration than the requirement of a class resolution passed by a three-quarters majority. 35. ibid. the view is adopted in farrar's company law (3rd ed .• butterworths) p.230 (cited below as "farrar"). 75 the denning law journal seems to be incompatible with class rights being subject to alteration by the whole body of shareholders36 37. . adopting the view attributed above to gower, the recognition of class rights and the limitation they impose on the exercise of the statutory power of alteration, even before any such limitation was expressed in the statutory provision itself, is inconsistent· with the interpretation of the statutory empowering provision as fully mandatory. furthermore, one might argue that the recognition of class rights and the concomitant restriction on the statutory power should be taken to support a more general principle that the statutory power is always subject to contrary provision, and that class rights simply provide a case where the principle is applicable because of the readiness with which it may be inferred from the presence of class rights in the articles that the statutory power is not to be capable of being exercised in the normal way3839. one may conclude that it is far from clear that the statutory empowering provisions 36. in cumbrian newspapers v. cumberland and westmoreland herald ([ 1987] 1. ch. i), scott j. took the view that before s. 125 was introduced, class rights could be altered by the exercise of the statutory power by the shareholders as a whole in the normal way, except where there was a provision for alteration, where the provision had to be followed. but, with respect, his arguments are unconvincing. first, scott j. said that the view that class rights were immutable except in accordance with a provision for alteration in the articles was rejected in andrews v. gas meter ([ 1897] i ch.361). but this case is usually taken to stand for the proposition that where the share capital clause of the memorandum makes no explicit reference to more than one class of shares if it is not to be inferred that the clause precludes the creation of another class, so that a new class can be created if authorised by the articles. the case can be taken to hold that a class right of shareholders against the creation of a new class of shares will not be implied in the memorandum or articles, which says nothing about how such a right might be altered if it existed: cf cases like white v. bristol aeroplane ([ 1953] ch.65), which hold, in effect, that no class right will be implied against the issue of bonus shares, or to pre-emption rights, so as to preserve the present proportion of votes of a class of shareholders. secondly, scott j. relied on the assumption that the statutory power of alteration is mandatory, and so could not be limited except by statutory provision. this was taken to be the case without discussion, and is difficult to reconcile with the judge's conclusion that the statutory empowering provision had always been subject to contrary provision in the case where there was an express alteration clause, although not to contrary provision clearly implicit in the presence of class rights in the articles: see at [1987] i ch.1 at 21, and gower, note 21 on page 535. 37. in allenv. gold reefs [1900-3] all e.r. rep. 746, the court of appeal accepted that the statutory power of alteration could be displaced by a "special bargain" with a particular shareholder: see per linley m.r. at p. 748, per romer l.j. at p. 754. it is not entirely clear whether the judges had in mind an extrinsic special bargain incorporated in the articles. in either case, the effect would be to preclude the exercise of the statutory power of alteration. 38. on the other hand one might infer that the general principle is that no restriction on the exercise of a statutory power can be effective except to protect a class right. the effect would be that restrictions on alteration could exist only in the form of a veto exercised collectively by shareholders with the same interests, and that a shareholder could never protect himself from the collective decision of shareholders having the same interests as him. this might be defended as the best way to preserve flexibility in alteration whilst at the same time allowing for essential protection. this cannot be inferred, however, from the statutory empowering provision itself. s.17 of the companies act 1985 provides for the entrenchment in the memorandum of a provision whether or not it creates a class right. 39. the difficulty, where shareholders have divergent interests, is to determine to what extent it was intended that the interests should be subject to protection as class rights, as opposed to being subject to alteration by special resolution of all the shareholders. 76 restraining the exercise of corporate statutory powers are mandatory, or that they are frustrated by provisions in the memorandum or articles that restrict their exercise. although there are certainly examples of cases where the judges have assumed that they are mandatory, a consideration of class rights and weighted voting rights and of the context in which the provisions were introduced provides support for construing them as enabling and subject to contrary provision. certainly it may be argued in the light of the modern conception of company law as a framework for private arrangement subject to mandatory rules only where necessary to protect specific interests, either of outsiders or shareholders, that the statutory empowering provision should not be construed as mandatory in the absence of any good reason to suppose that, either originally or in a more recent enactment, they were based on a deliberate judgement that unfairness or inefficiency would result from leaving the matter for agreement between the shareholders. although shareholders are likely to want to have a provision for alteration that does not rely on the consent of every shareholder, they may reasonably want a particularly restrictive procedure for. alteration, at least in relation to certain provisions40, and there seems no good reason to deny them the freedom to agree on such restrictions (even if it is necessary , in their own interests, to deny them the freedom to agree on arrangements for alteration that are more flexible than might be considered prudent). shareholders' agreement restricting the exercise of a statutory power the question whether the statutory empowering provision in s .121 is mandatory was in issue in russell v. northern bank. lord jauncey held that an extrinsic shareholders' agreement binding the shareholders not to vote to exercise the power was not inconsistent with the statutory empowering provision. some commentators have asserted trenchantly that the statutory empowering provisions are mandatory, and therefore that the decision in russell "[ prevents] the application of mandatory provisions of the companies acts"41. but lord jauncey's decision, although not 40. bebchuk (1989) 89 colum.l.rev. 1395 at 1401. denying that a mandatory provision should apply to govern a particular issue does not amount to saying that it should not be possible for the courts to intervene to override the terms of the articles, particularly if circumstances have changed. see riley, above note i, p.47. 41. shapiro, above note 3, at p.213. savirimuthu, above note 3, at p.139 goes so far as to say that the house of lords "expressly overrode statute" and thereby "usurped the function of the legislature" . 77 the denning law journal made with any explicit discussion of whether the statutory empowering provision was enabling or mandatory, 42 is at least consistent with the conclusion above43• unfair prejudice there is a more plausible argument against the enforceability of shareholders' agreements that restrict voting freedom based not on a supposed inconsistency with a statutory empowering provision, but on the notion of unfair prejudice or minority oppression. for example, it has been suggested44 that each shareholder should be "entitled to assume that all other members will exercise an independent judgement upon those issues on which their votes are cast", and that a shareholder may have a remedy for unfair prejudice under s.459 of the companies act 1985 if another shareholder's vote is instead governed by a contractual restriction on voting 45, the orthodox view is that shareholders are not fiduciaries for the company or each other, and are not obliged to vote in such a way as to promote the company's business or the interests of the generality of shareholders, but are free to exercise their votes in their own interests, and to bind themselves by contract as to the exercise oftheir 42. the effect of the statutory empowering provision on an agreement by the company itself will be considered separately be]ow. the decision in russell with regard to the shareholders' agreement appears to have been based mainly on the principle that, as a general rule, a share is the shareholder's property for him to dispose of as he wishes, citing welton v. saffery [1897] a.c. 299at331. (see also pender v. lushington (1877) 6 ch. d. 70 and nonh-west transponation co v. beatty (1877) 12 app.cas.589.) it is no doubt appropriate for certain purposes to regard a share as an item of property, in the same way that a right under a contract can sometimes be regarded as an item of property. however property rights can be subject to inherent limitations, and although the conclusion that a share is the shareholder's property can be understood to exclude the possibility that the shareholder is a fiduciary for the company or other shareholders, it does not indicate what rights are actually attached to a share, or what specific restrictions may exist on the exercise of rights prima facie conferred by ownership of it. 43. another argument against allowing extrinsic shareholders agreements, and against agreements by the company that restrict the exercise of powers in the general meeting, is that potential shareholders and other interested parties have no way of knowing whether such agreements exist or what their terms are, whereas they have access to the terms of the memorandum and articles through the register. however this difficulty can be dealt with sufficiently by a requirement of registration of such agreement or notice to interested parties, if it is not sufficientto leave the matter to negotiation. see riley, above note 3, p.48. 44. riley, above note 3, p.46. 45. the suggested stipulation that shareholders must exercise an independent judgement is reminiscent of the law concerning public powers. (i do not mean to attribute this interpretation to riley.) where a person or a body of people have vested in them by statute a public power that is, a power to be exercised in the public interest it is a long established principle of administrative law that a contract by which the person or a member of the body purports to bind himself as to how the power is to be exercised is unenforceable: see for example ayr harbour trustees v. oswald (1883) 8 app.cas. 323. the statute requires the discretion to be exercised by the person or body in whom it has been vested in the light of prevailing circumstances, and a prior fettering by contract of that person's discretion, or the discretion of members of the body, or a surrendering of the discretion, is incompatible with the empowering statute. the reference in russell to the "fettering" of "statutory powers" ([ ]992] 3 all e.r. ]61 at 168 per lord jauncey) adopts the language of administrative law. the same principles apply to fiduciaries (including company directors) taking decisions in the interests of other people. but, unless the concession theory of incorporation is adopted, it is not the rationale of company law to confer powers on the general meeting to be exercised in the public interest, or the interests of other parties than the shareholders themselves; it is to establish a framework for the pursuit of the interests of the shareholders, subject where appropriate to mandatory restrictions to protect shareholders or outsiders. see note 42 above. 78 restraining the exercise of corporate statutory powers votes, subject only to rather ill-defined rules to protect against minority exploitation46• it is a controversial and confused question what general principle of unfair prejudice or minority oppression (if any) determines when an exercise of a statutory power in the general meeting, or any other power of the general meeting, is ineffective47• there is a line of cases concerned with limits on the freedom of shareholders to pass a resolution altering the memorandum or articles where the alteration would be unfair to a minority shareholder. the rule is stated to be that an alteration is ineffective if it is not "bonafide for the benefit of the company as a whole", although exactly how this phrase is to be understood is a matter of controversy48. nowadays the issue is likely to be dealt with under the rubric of unfair prejudice under s.459. the issue raised here is whether it can be a form of minority oppression or unfair prejudice to one shareholder for another shareholder to be subject to a contractual restriction on his voting on the exercise of the power. it is difficult to see why, as a general rule, a shareholder who was actually party to a shareholders' agreement that imposed voting restrictions should be able to complain that it is unfair prejudice for other shareholders to vote in accordance with the agreement or to insist on its observance. as in russell, protection of a minority shareholder will, to the contrary, generally require enforcement of the agreement49• however the position may be different in the case where a shareholder complains of unfair prejudice arising from voting restrictions in a shareholders' agreement to which he is not party because he is a new shareholder, for example, or because the shareholders' agreement was not entered into by all the shareholders. in such a case a shareholder who voted in accordance with the agreement would not be able to claim that the complainant had (presumptively in his own interest) agreed to the restrictions. is it then unfair to the complainant for the voting of other shareholders to be dictated by a contract? one approach to the question might run as follows. arrangements in the memorandum or articles, or in the statute, for certain issues to be settled by vote are necessitated by the impossibility of foreseeing all the contingencies that may arise in the life of the company, and making provision for them in the initial terms of the 46. see note 42 above. however because the relationship enshrined in a company is likely to be long term, there are strong arguments for the court to have a jurisdiction to override arrangements in cases where there has been a change of circumstances over a long period: see riley, above note 3 at p.47. such an argument might be addressed under s.459. in some jurisdictions in the u.s., shareholders' agreements are limited to a specified tenn: see easterbrook & fischel, above note 13, p.131, and eisenberg, above note i, at p.1466. see also riley, above note i, at p.786. 47. the approach below makes no distinction between voting under a statutory power and voting to exercise powers that may be conferred on the general meeting by the articles directly, like the power to issue shares, as in clemens v. clemens ([1976] 2 ai e.r. 268). this seems quite appropriate, since there seems to be no reason to distinguish between the two. in both cases, there is a power capable of being exercised by a majority and capable of operating unfairly at the expense of a minority: see per lindley 1.1., in allen v. gold reefs of west africa []9oo] i ch.656 at 659. 48. allen v. gold reefs of west africa [1900] i ch.656; greenhalgh v. ardeme cinemas [1951] ch. 286. 49. in russell, the plaintiff had entered into an agreement precluding further share issues to protect his minority interest in the company. 79 the denning law journal company's memorandum and articles50. if, on joining the company, shareholders may be taken to have agreed, for this reason, to postpone decision on certain matters and provide for them to be settled by vote when they arise, it would be reasonable to impose such restrictions on the voting as it would be reasonable for each shareholder to insist on at the time of joining, to protect himself against a resolution that might operate unfairly against him51• it would be reasonable to suppose that a shareholder in that position would be prepared to accept that on a matter that might affect him adversely a decision should be made by vote amongst only those shareholders who will be affected by the vote in the same way. the shareholder then risks only being outvoted on matters in which his judgement differs from other shareholders, and not on matters where other shareholders have different interests and incentives at stake. this is the basis for class rights, where shareholders with common interests have the right as a class to determine whether their rights should be altered52• it also supports the rule that on a resolution on a class vote a shareholder may not vote if he has an interest in the outcome other than as a member of the class53• one might argue that a shareholder who is not himself party to a voting agreement could complain that such an agreement gives a shareholder who is party to it an interest in the vote otherwise than as a shareholder, for the purpose of the principle above. but whether this is the case would depend on the nature of the agreement. arguably it would not offend against the principle if all the parties to the agreement were shareholders and the only benefit from the agreement for each party was the effect of the agreement on the shareholder's interest in the company. here each shareholder would simply have sacrificed his freedom to judge how to promote his interest as a shareholder in the short term, for the sake of promoting that interest in the long term, and not for the pursuit of an extraneous interest. on the other hand it might offend against the principle if a shareholder were restricted by an agreement by which he had sacrificed his interest as a shareholder to some extent in return for an extraneous benefit, for example under a commercial agreement with an outsider, or under an agreement with other shareholders to secure a directorship. in such a case a shareholder not party to the agreement might be able to claim that it is unfair prejudice under s.459 for another shareholder's voting decision to be governed by the agreement, and consequently that the agreement should not be enforceable by injunction. 50. see easterbrook & fischel, above note 13, at p.67. 51. this is an exercise in generating default rules by "hypothetical contracting": see for example riley, note i above, at p.788. 52. see the discussion above under the heading "class rights". 53. british america nickel corpn ltd v. o'brien [1927] a.c. 369. however it has not generally been accepted that the presence of an extraneous interest disables a shareholder from voting, for example where he has a personal interest as an outsider dealing with the company. furthermore, it is not easy to say what factors should be taken into account in determining whether shareholders are in a different position or have different interests. 80 restraining the exercise of corporate statutory powers agreement by the company itself not to exercise a statutory power this section deals with the case of an agreement by the company itself that purports to restrict the exercise of a statutory power. in russell, the company itself was party to the shareholders' agreement, and it was held, relying on a line of cases considered below, that the company's undertaking was unlawful, on the ground that the company could not deprive itself of a statutory power54• thus, in this context, the statutory empowering provision was treated as mandatory in the sense described above. davenport has pointed out that this can create practical problems for companies, since restrictions on the exercise of a statutory power by agreement with third parties are an important means of providing security to outsiders contracting with a company in certain types of contract, in particular loan contracts55• the finding that the statutory empowering provision was mandatory in this respect does not sit easily with the other aspect of the decision in russell, that the statutory empowering provision did not prohibit voting restrictions in shareholder agreements. it is not clear why the statute should be understood as mandatory for one purpose but not the other56• if the statute does not stop shareholders from imposing restrictions on the exercise of power, why should it stop the company from accepting such a restriction if it is accepted in accordance with the company's constitution57? 54. as mentioned above, note 5, davenport has argued that this part of the decision in russell is not part of the ratio of the case. 55. davenport [1993] l.q.r. 553. davenport says (at p.553) that such provisions "are regarded as essential protection for those providing the finance". see also ferran, above note 3, at p.351; and romano, ed, foundations of corporate law aup, 1993), part iv . lord jauncey took the view that such a restriction will be void, and that unless the offending provision is severable the whole contract will fail, so that in the case of a loan contract, the lender will be reduced to a restitutionary remedy to recover the loan. lord jauncey' s approach to severability was, however, so flexible that it is difficult to see when a restriction will not be severable. in fact the cases considered by lord jauncey suggest not that the restriction is void but that it is valid but unenforceable by injunction. the lender will then be able to provide for early repayment or other secondary obligations arising on default. however there will presumably be occasions, for example where there is a threat of insolvency, where the lender needs an injunction to enforce the restriction in order to protect his interest under the contract. 56. see ferran, above note 3, p.344. 57. the question of conformity with the company's constitution is considered below in connection with the issue of contractual authority. the formal difference between the two cases is that, where a company contract is concerned, the company itself is bound, rather than merely the shareholders individually. where the company is bound, future shareholders are effectively subject to the restriction, whereas an agreement between particular shareholders outside the articles does not affect future shareholders. also an injunction can be obtained against the company directly, rather than against the shareholders separately. and in the case of a restriction in a shareholders' agreement (or a restriction in the articles, although this binds the company), the shareholders as a whole will have it in their power to remove the restriction. but in practice a shareholders agreement is likely almost as effectively to obstruct change, at least in companies with a reasonably small and stable body of shareholders (which is the type of company where such an agreement is feasible). if the rationale for the statutory empowering provision is to ensure a degree of flexibility by banning restrictions on shareholders' freedom to make alterations from time to time, the provision should apply equally to shareholders' agreements. if, on the other hand, the statutory provision is correctly understood as enabling, there is no inconsistency with the statute whether the restriction binds the company or the shareholders personally. 81 the denning law journal if a company is disabled from accepting a restriction in a contract with an outsider, its contractual capacity is limited. it is clear that there are circumstances where it is advantageous in its dealings with outsiders for a company to be able to accept a restriction on a statutory power, and it is surely better that the company should have the capacity to bind itself, so that, as with other contracts that the shareholders may wish to put beyond the power of directors, the question whether a restriction is binding is dealt with as a question of authority (including the statutory rules adapting this concept to the company)58. it is difficult to see why the law should entirely deny a company the facility to enter into such a contract if it is entered into with due authority 59. the authorities the proposition endorsed by lord jauncey, that a company may not deprive itself of a statutory power by contract with an outsider, is taken to be supported by a line of cases dating from the last century, including punt v. symons & co ljdfij, southern foundries v. shirlaw6l, and the more recent case of cumbrian newspapers v. cumberland herald62, although, as has recently been pointed out63, it appears to be inconsistent with a couple of other cases, british murac syndicate ltd v. alperton rubber co lttj64and baily v. british equitable assurance co. 65.in punt v. symons, the company had entered into a contract with s, the managing director of the company, who was also a shareholder, and his executors after his death, by which the company undertook not to alter certain provisions of the articles that gave s or his executors the exclusive right to appoint the directors of the company. after the death of s, however, the directors convened a general meeting at which the shareholders voted 58. the issue of contractual authority is considered below. 59. furthermore, even if the statutory empowering provisions are understood to be mandatory so far as shareholders are concerned, it is strongly arguable that, as in the case of contracts outside the objects, an outsider deal ing with the company should be entitled to the protection for his contract that he receives under the rules governing authority, and that he should not be disabled from enforcing his contract by a rule limiting the capacity of the company. the statutory provision that abrogated the ultra vires doctrine (companies act 1985 s.35) provides that the capacity of the company is not limited by anything in the company's memorandum; it is not expressed to cover limitations on capacity arising ftom the statute. this is clearly appropriate where the statute vitiates a contract because it is or may be unfair as between the company and the outsider, as in the case of provisions that impose fiduciary disabilities on directors, e.g. s.322a companies act 1985. in the case of a statutory empowering provision, however, even if the provision is understood as mandatory so far as shareholders are concerned, it is not designed to deal with any supposed unfairness as between an outsider and the company, and it is arguably within the rationale of s. 35 (if not its expressed scope) that such a provision should not affect the company's capacity with respect to an outsider. 60. [1903] 2 ch.506. there are other cases in which the provision fettering the statutory power is in the articles: allen v. gold reefs of west africa ([ 1900] i ch.656), walker v. london tramways (12 ch.d 705), bushell v. faith, see above, note 00. 61. [1940] 2 all e.r. 445 62. [1986] 2 all e.r. 816 63. davenport, above note 3, at p.570. 64. [1915] 2 ch.186. 65. [1904] i ch.374. see davenport, above note 3, at pp.560-3. 82 restraining the exercise of corporate statutory powers to alter these provisions of the articles, and the executors sought an injunction to prevent the company from doing so on the ground that it would be a breach of contract66• byrne j. said67 ". • • i am prepared to hold that in the circumstances of the present case the contract could not operate to prevent the article being altered under the provisions of s.50 of the companies act 186268.•.• "69. in southern foundries v. shirlaw the plaintiff had entered into a service contract with the defendant company to act as its managing director. the articles of the defendant were altered after the company was taken over by another company, federated, to confer on federated the power to remove a director of the defendant. federated exercised this power to remove the plaintiff from his directorship, thereby bringing the service contract to an end. for present purposes, the relevant issue was whether the defendant company could alter its articles to confer the power of removal on federated. there was some doubt whether the service contract actually included an implied term prohibiting the defendant from altering its articles in such a way, but the house of lords was clear that, if there was such a term, it would not be invalid, and a breach could give rise to damages, but it could not be enforced by injunction against the company70. more recently, in cumbrian newspapers v. cumberland herald, scott j . also expressed the view that a contract prohibiting the company from altering its articles was enforceable in damages but not by injunction 71. these cases appear to give some support to the view that a statutory empowering provision is mandatory, inasmuch as they deny an outside contractor an injunction to enforce a contractual restriction on the exercise of a statutory power (although not to the extent of making the contract void or unlawful or denying a remedy in 66. the executors also argued that the alteration of the articles was contrary to their rights as shareholders, rather than contractors, because the directors had acted for an improper pui]lose in issuing additional shares for the purpose of procuring the resolution to alter the articles. 67. [1903] 2 ch.506 at 514. 68. equivalent to s.9 companies act 1985. 69. however, although the judgement is not entirely clear on this point, it appears that the judge did not consider the contract to be unlawful or void, but merely not enforceable by injunction. after the first passage quoted above, byrne j. went on to say, at p.514: " ... it may be that the remedy is in damages only." see also note 80 below. 70. see [1940] a.c. 701, per viscount maugham at p.713, lord wright at p.726, lord porter at p.740-1. the other issues decided were that the power under the company's constitution to remove the plaintiff as a director (whether resulting from altered articles or not) did not affect the contractual right of the plaintiff under his fixed term contract, and that the exercise of the power by federated was attributable to the defendant. . 71. [1986] 2 all e.r. 816 at p.830-1. here the defendant had contracted to give the plaintiff shareholder a right of pre-emption over new share issues and a power to appoint a director, both of which were also incoi]lorated as additional provisions in the articles. by contrast with the approach in punt v. symons, scott j. decided the case by reference to the plaintiff's rights as a shareholder: that is, on the issue whether the additional article conferred class rights or could be altered under s.9. however he then said, obiter, that if the contract purported to prohibit the company from altering its articles so as to cancel these rights, it would not be unlawful or invalid, but it would not be enforceable by injunction against the general meeting preventing it from exercising the power. 83 the denning law journal damages for breach of contract)72. on the other hand, there are two other cases that have been cited in support of the view that a contract by a company purporting to restrict its exercise of a statutory power is not only valid but also actually enforceable by injunction against the company: british murac syndicate ltd v. alperton rubber co l((1'3 and baily v. british equitable assurance co. 74. in british murac, the defendant company had agreed by contract with the plaintiff, a shareholder, that the plaintiff should be entitled to appoint two directors to the defendant's board. a provision to the same effect was inserted in the company's articles as article 88. the directors of the defendant company then refused to accept the plaintiff s nominations and called a meeting of the shareholders to alter the articles by the deletion of article 88. sargant j. awarded a declaration that the plaintiff's nominees were properly appointed directors of the company and an injunction prohibiting the company from calling a general meeting to alter its articles by the deletion of article 88. this appears to be a clear authority that a contract by the company not to exercise a statutory power in general meeting may be enforced by injunction75. in british murac sargant j. relied on the judgements of the court of appeal in baily as authority for his decision 76.in baily, the plaintiff had entered into a contract for life insurance with the defendant company. on the view of the facts reached by the court of appeal, the contract incorporated by-law 4 of the articles of the company 77,which provided that the whole profits of the company should be divided between the policy-holders, without deduction (save for expenses). the company then sought to alter the articles to provide, by article 103, that a proportion of the profits should be retained and credited to a reserve fund before division of the remainder amongst policy-holders. sargant j. in british murac understood the case to have held that the company could be enjoined from exercising its statutory power to alter its articles by deleting by-law 4 and introducing article 103, on the ground that this would be a breach of the contract of life insurance78. it is difficult to arrive at any conclusion consistent with all the cases, certainly if it is necessary to follow the reasoning in the judgements. but it is certainly plausible to interpret the cases as being consistent with the view that a statutory empowering 72. thus the cases appear to give no support to lord jauncey's view in russell that the restriction is "unlawful" in the sense that its presence can taint the whole contract with illegality and so make it wholly void unless the offending restriction can be severed. 73. [1915] 2 ch.186. 74. [1904] i ch.374. 75. instead of enforcing an extrinsic contract, the court could have reached this decision by the route later followed by scott j. in cumbria newspapers, of recognising a class right of the plaintiff under the articles. 76. the court of appeal decision was overruled in the house of lords ([ 1906] a.c. 35), which adopted a different view of the facts. 77. originally the company was a deed of settlement company with (as a matter of terminology) by-laws rather than articles. the changes to the by-laws were proposed when it converted to a registered company with articles. 78. the house of lords took a different view of the facts. it held that by-law 4 had never been a term of the plaintiff's policy. the plaintiff was entitled only to the share of the profits determined by the company's practice for the time being: [1906] a.c. 35 at 41-2, per lord lindley. 84 restraining the exercise of corporate statutory powers provision does not prevent a contractual restriction on the exercise of a statutory power from being enforced by injunction, if other factors are taken into account that were not referred to in the cases. first, as mentioned above, if a statutory empowering provision does not preclude the company from accepting a restriction on the exercise of the power, the question arises who has authority, and in what circumstances, to accept such a restriction on behalf of the company; and a restriction might be unenforceable for lack of authority rather than inconsistency with the statute79. secondly (although this may be regarded as an aspect of the issue of authority) it is questionable whether a shareholder should be able to enforce a contract that bears on his position as a shareholder rather than an interest as an outsider, since this would be at odds with the statutory contract to which he is a party. thirdly, in both punt and southern foundries, the cases that appear to deny the enforceability by injunction of a contractual restriction on alteration, the alteration of the articles that was sought to be enjoined was for this purpose of removing a director, and one can argue that the cases should be distinguished as concerned with this limited issue, rather than the more general issue of conflict with a statutory provision80. the issue of contractual authority if a contract by the company accepting a restriction on the exercise of a statutory power is not inconsistent with the statutory empowering provision, the contract may still be ineffective if made without proper authority. generally a contract will be made by the directors, or by their authority. the articles of the company will normally delegate to the directors "all the powers of the company"81. this is usually taken, as a matter of construction, to cover only powers concerned with management of the business, and not powers concerned with relations between shareholders or control 79. on this view the undertaking would be void for all purposes rather than merely unenforceable by injunction. 80. a fourth point might be added. sometimes where a contract prohibits the alteration of the memorandum or articles the contract can in substance be observed without actually preventing the alteration, but merely treating the company, so far as the outsider is concerned, as if the unaltered provisions still applied. the court might then argue that an injunction to prevent the alteration itself will not be granted because it is not strictly necessary. in punt v. symons, having declined to enforce the contract by injunction, the judge suggested (at p.5l4) that the court might order specific performance of the contract by requiring the company to accept the executors' appointments of directors, without actually concerning itself as to the provision concerning appointments in the articles: " ... it may be that the stipulation of the contract can be enforced notwithstanding the alteration in the articles." in baily (where an injunction was in fact granted), it appears that the order made at first instance and affirmed by the court of appeal was a declaration "that the company ought to continue to distribute the entire profits ... " without deduction. although it was accepted by the parties and the court on appeal that the question was whether "the company is at liberty to alter the provisions of by-law 4 ... in such a manner as to alter the rights of those policyholders to profits" (at p.82), in fact the decision merely recognised the contractual right of the plaintiff to a sum calculated by reference to the whole profits without deduction, irrespective of the terms of the articles for the time being. (there cannot have been any question of a policy-holder's having a proprietary right to any part of the assets of the company). the decision that the terms of the contract incorporated the original by-law 4 was actually compatible with the company's being free to alter its articles. if it altered the articles the company might put itself in the position that the fulfilment of its obligations to policy-holders would disable it from complying with its obligations to shareholders under the articles, but this is a separate mauer. see also ferran, above note 3, at p.355 and riley, above note 3, at pao. 8!. eg table a, article 70. 85 the denning law journal of the general meeting82. one might argue that, where a power is vested in the general meeting by statute, it is implicit that authority to accept restrictions on the exercise of the power must be reserved to the general meeting also. but if, as argued above, the statute does not preclude a contract restricting the exercise of the power, there seems to be no reason why the articles should not give authority to the directors to enter into such a contract83, if the articles have no express provision on the point, it may be that articles that are expressed to give the directors all the powers of management should be understood to give the directors such authority to be exercised for management purposes, so that directors would have authority to make a contract accepting a restriction on the exercise of a statutory power if the contract has a commercial purpose, for example, to secure finance for the company, but no authority if its purpose is to interfere in the control of the general meeting, for example to assist a prospective bidder for the company's shares84, the concern that directors may bind the company in respect of matters that principally affect the relationship between the shareholders and the company, but may indirectly affect outsiders, is not limited to the exercise of statutory powers. for example, directors might seek to accept restrictions on the power to issue shares or to pay dividends. here the potential conflict between outsiders' interests and shareholders is the same as in the case of restrictions on the statutory powers, but it cannot be settled by reference to the question whether the contract is inconsistent with a statutory empowering provision, and one would expect it to be settled by reference, broadly, to the issue of authority85. 82, howard smith v. ampol petroleum ( [ 1974] a.c. 821). the question whether in particular circumstances a contract entered into by directors is within their "powers of management" may also be expressed as the question whether the directors have entered into a contract for a "proper purpose". the question how to determine whether directors have acted for a proper purpose (that is, how to construe the articles, and how to determine what the purpose is of a particular contract entered into by the directors) will not be pursued here. ferran, above, note 3, at pp.358-361, discusses the proper scope of the directors' authority (and related issues) under the rubric of "constitutional imbalance". 83. the statutory empowering provision might be understood to allow restrictions on the exercise but not to allow arrangements facilitating its exercise, and this would mean that the directors would not have the authority to bind the company positively to exercise the power. cf art. 25 e.c. directive 77/91 (2nd company law directive), q.j. 1977 l26/1. 84. however it would be understandable if the articles were construed, in the absence of express provision, to withhold from the directors the power to accept a restriction on the exercise of a statutory power, even if entered into for a business purpose, on the ground that the principal significance of the power is for issues that primarily affect the shareholders' interests in and control over the company and the directors (i .e. "distributional" and" structural" issues. in the terminology suggested by eisenberg, above note i). rather than the management of the company's business. 85. where a contract is made without authority it is entirely void. where the directors are outside their actual authority under the proper purpose doctrine, the contract may still be binding on the company under s.35a companies act 1985 . as amended. the issue in connection with s.35a is likely to be whether the outsider is in good faith. what amounts to lack of good faith is not clear, but it may be that in connection with restrictions on the exercise of a statutory power, first, the outsider would not be in good faith if his motivation for seeking the restriction was not to protect his interests under a contract concerning the company's business, but to interfere in some way with control over the general meeting for its own sake; and, secondly, because the exercise of statutory powers is primarily a mailer affecting the shareholders' interests in and control over the company rather than its business, the outsider would be expected to check to see whether the articles include a specific restriction on the directors' authority in this respect. and would be in bad faith if he failed to do so (but see s.35b). 86 restraining the exercise of corporate statutory powers agreement by the company with a shareholder there is, of course, no general rule precluding a company from contracting with a shareholder. but a shareholder surely cannot make a contract with the company outside the articles that in effect simply varies his rights as a shareholder viz-a-viz the company and other shareholders86• if such a contract were enforceable by injunction, it would be tantamount to an alteration of the statutory contract binding on all other shareholders, and to their detriment, without going through the proper procedure for alteration of their respective rights laid down by the statutory contract; and indeed even if the contract were only enforceable by an order for damages, it would seem to be inconsistent with the statutory contract. in such a case, the correct approach is surely for the shareholder to procure the alteration of rights under the statutory contract through the general meeting8? this argument is consistent with the outcome in russell, where the company contract was with the shareholders88• however if a shareholder is dealing with the company as an outsider, that is, in relation to the company's business (for example as a lender), and he seeks a restriction on the exercise of a company power pursuant to an interest as an outsider, he should presumably be treated as an outsider89• the issue of removal of a director it is also arguable, as mentioned above, that the cases that appear to hold that a company may not bind itself not to exercise a statutory power may be explained by reference to the principle that the power to remove a director cannot be relinquished by the shareholders. this principle has been embodied in a certain form in the statutory 86. although presumably he could waive rights against the company. in baily v. british equitable assurance co [1904] 1 ch.374, at 385, cozens-hardy l.j. said (in a different context) " ... a shareholder must be regarded as an outsider in so far as he contracts with the company otherwise than in respect of his shares". see davenport, above note 3, at 559 .. on the other hand in allen v. gold reefs [1900-3] all e.r. rep.746, the court of appeal accepted that the statutory power of alteration could be displaced by a "special bargain" with a particular shareholder: see per lindley m.r. at p.748, per romer l.j. at p. 754, and the judges appeared to mean a "special bargain" in an extrinsic contract rather than a class right in the articles. this view is adopted by gore browne, ed. boyle & sykes, (jordans) sec 4.7. see also ferran, above note 3, at 351-2. 87. there is a problem that a provision in the articles restricting the company from exercising the power might not be enforceable unless it is a class right: see the discussion of class rights above. if this is so, however, it is not clear why it should be possible to circumvent the limitation by way of an extrinsic contract. 88. similarly in punt v. symons, british murac and cumbrian newspapers, the company contract was with a shareholder, and it was not intended to protect an interest of the shareholder as an outsider, for example as a lender, but in effect to bolster his rights as a shareholder. thus the argument would indicate that the contract should be unenforceable and the court should instead have based his protection on his rights under the statutory contract. where all the shareholders are party to the agreement, it may be possible to argue, following cane v. jones [1980] 1 w.l.r. 1451 that the shareholders' agreement actually amounts to an alteration of the articles. 89. it might be better to say that under the statutory contract the directors do not have the authority to enter into a contract with a shareholder concerning his rights under the statutory contract (and that the shareholder as a party to the contract will be bound by this restriction on the directors' authority in any dealing with the directors). 87 the denning law journal provision now in s.30390, but the provision was not in force at the time of the cases91• however one can argue that the principle received tacit recognition, to some degree, in the judicial treatment of the issue before the enactment of the provision. there are two issues that arise on the removal of a director. the first is whether the requisite power of removal exists under the company's constitution or by statute. the second is the effect on the director's appointment of an extrinsic contract for example, a service contract with the director, or a contract with an outsider conferring a right of appointment, or a shareholders' agreement concerning a directorship. it appears that, with regard to the first issue, aside from s.303, the company has no power to remove a director except in accordance with a provision of the articles providing for removal, so that (before the provision in s. 303 was enacted) to remove a director in the absence of a pre-existing provision for removal required an alteration of the articles to create such a power92• with regard to the second issue, again considering the position before the enactment of the provision in s. 303, it appears that if the removal was effective under the company's constitution, but in breach of a service contract with the director, the director could not obtain an injunction requiring the company to remedy the breach by restoring him to the position of director (by going through the appropriate procedure under the constitution), but could only recover damages93• s. 303, in addition to conferring a power of removal by ordinary resolution under the constitution, confirms that a service contract cannot be enforced by injunction to frustrate a removal under the section. punt and, on one view, southern foundries, were cases where, for the purpose of securing a director against removal under the constitution (with respect to the first issue above), a contract with the company purported to prohibit the company from altering provisions of its articles. instead of invoking a general rule that the company may not by contract restrict itself in the exercise of a statutory power, these cases may be satisfactorily explained on the basis that an injunction to prevent alteration of the articles will be denied in the particular case where the alteration is necessary to create a power of removal (with reference to the first issue above). an injunction 90. see above, text following note 29. 91. there is now also a provision that invalidates a service contract for more than five years unless it has been approved by the general meeting: s.319 companies act 1985. 92. imperial hydropathic hotel compny v. hampson (1882) 23 ch.d. i southern foundries v. shirlaw [1940] a.c. 701; gower, p.153. imperial hydropathic establishes also that a director can personally enforce by declaration or injunction his right to be recognised as such until a proper removal is carried out under the constitution, whether or not he is himself a shareholder. this is curious inasmuch as it means that a director not party to the statutory contract is permitted to rely on its terms, rather than having to depend on a shareholder enforcing the terms of the statutory contract. however the position would be intolerable if a director could not take action himself to establish his status in the event of a dispute between directors and particular shareholders, and if shareholders had to be alert to take action to protect the appointment of directors against purported removals. the position may be summarised by saying that a director, qua director, is an office-holder rather than an employee or agent, and therefore entitled to secure his office by injunction: cf malloch v. aberdeen corporation [1971] all e.r. 1278 at 1294, where lord wilberforce distinguished' 'pure master and servant cases" from a case where there is something "in the nature of an office or a status" (actually with reference to the availability of natural justice). 93. southern foundries v. shirlaw [1940] a.c. 701 88 restraining the exercise of corporate statutory powers is denied because the director should not be able to secure himself from removal by contract in this way. the argument above has been simply that the cases that have been relied upon in support of a general rule that the company cannot by contract deprive itself of a statutory power may instead be accounted for by reference to a much narrower rule concerning the removal of directors, for which there is some independent support. s. 303 extended the rule by creating a power of removal that could not be ousted by contrary provisions of the articles, as well as confirming that the power of removal could not be frustrated by an extrinsic service contract94• it is worth considering briefly the scope and rationale of this narrower rule, as a mandatory rule of company law (to be contrasted with the enabling provisions conferring powers of alteration of the memorandum and articles). one would normally expect the appointment of a fiduciary to be expressly revocable at any time because of the power wielded by the fiduciary and the danger of abuse. to the extent that a mandatory rule overrides an appointment in the articles, the rationale seems to be simply that shareholders have to be protected against their own rashn~ss, or failure to consider the long term, in committing themselves to a certain director. there are arguably stronger grounds for a mandatory rule if the directors themselves are involved in arranging the directorship: for example where they recommend an appointment, or where they grant a service contract, which, if enforceable by injunction, would amount to an appointment. here it may be argued that the shareholders should be able to procure a removal to obviate the danger of exploitation by directors9s• it is arguable also that restrictions on the removal of directors is against the public interest (as opposed to the private interest of the company's shareholders) because it tends to frustrate takeovers, which are (or may be) in the public interest96• there are certain situations where the scope of s.303 and the underlying common law may be in issue. s.303 provides expressly that where a director has a service contract with the company it cannot be enforced by injunction to frustrate a power of removal. but the section says nothing about the case where the director holds office 94. the rule against enforcement by injunction of a director's service contract is sometimes understood as an application of the general rule that an injunction is not available to enforce a contract for the provision of personal services. the status and scope of this rule are controversial. it is arguable that non-enforcement by injunction is based not on a rule of law but on a rebuttable presumption that a breakdown in relations has made it impossible in practice for the contract to be performed: see hill v. parsons [1972] ch.305, powell v. london borough of brent [1987] i. r. l.r. 466, harvey on industrial relations and employment law. ed. perrins, para a 178, smith & wood, industrial law (butterworths, 5th ed.) p. 271. a shareholders' resolution (or a board resolution) removing a director does not necessarily imply any breakdown in relations between the director and those. if anyone, with whom he has to maintain satisfactory personal relations in order to perform his service contract. it may be better to regard the director's position as governed by a specific mandatory company law rule. the rule against enforcing service contracts would not apply to an extrinsic agreement granting a power of appointment. 95. this would be an application of the "opportunistic amendment hypothesis" for the justification of a "power allocating" mandatory rule, in gordon, above note 14, a p.1568. 96. see farrar, p.606; bradley (1990) 53 m.l.r. 170; easterbrook & fischel, above note 13, at pp.166-174. 89 the denning law journal under a power of appointment given to an outsider by contract, which was the situation in punt and in british murac. however the corresponding australian provision97 provides that where a director represents a debenture-holder, his removal by ordinary resolution does not take effect until a replacement is appointed by the debentureholder. thus the provision of the debenture giving a power of appointment appears to be enforceable by injunction, although not to secure a particular director against removal. in this situation, first, the company has a strong commercial interest in being able to make a contract that the outsider can enforce by injunction, since this form of enforcement is indispensible if this type of contract is to be viable at all; and, secondly, there is no risk of substantial loss of control over the management as a whole, or of exploitation by directors, and so a curtailing of the principle of exclusive control over directorships by the general meeting is justified98• however one would expect the position to be different if a contract purported to give an outsider by contract the power to appoint the majority or even a substantial proportion of the directors. it is worth noting that in punt, where the outsider's right of appointment was not enforced by injunction, the contract purported to confer a right to appoint all the directors, whereas in british murac, where an injunction was granted, the contract purported to confer only the right to appoint one or two directors as representati ves99• neither s. 303 nor any case law predating it deals with the case where a shareholders' agreement prohibits the shareholders from voting to remove a director. is such a contract also unenforceable by injunction? the principle behind the section suggests that such an agreement should be unenforceable, but the section explicitly overrides an agreement between shareholders entrenching directors only in the form of a provision of the articles. the issue has risen, implicitly, in the cases concerning quasi-partnership companies where the shareholders have established the company on the understanding that they will be permanent directors!. on the narrow approach to statutory interpretation adopted in bushell v. faith, a court might well conclude that, whatever its rationale, s.303 fails to cover a shareholders' agreement2. however the approach seems to have been that s.303 does invalidate such an agreement, but that, if the power is exercised to remove from his directorship a shareholder who had a "legitimate expectation" to remain as director, the shareholder will be entitled, 97. companies act 1981 (cth) s.221(5) 98. whereas, on the other hand, damages are a tolerable if imperfect remedy for loss of a service contract, and if all service contracts were enforceable by injunction there would be a risk of substantial loss of control. 99. see gore browne, sec.4.7. similarly it must be doubtful whether a management contract purporting to give an outside body full and exclusive powers of management is enforceable by injunction. in lee panavision v. lee lighting [1991] bcc 610 such an agreement was unenforceable for other reasons; jaffey (1994) 15 co. law. 22. i. in fact these cases are not usually approached on the explicit basis that there is a shareholders' agreement providing for permanent directors, but that in the circumstances the shareholder has a "legitimate expectation" to remain as director although this legitimate expectation arises from the dealings between the shareholders, and so is really tantamount to an implicit shareholders' agreement. 2. se above, text following note 29. this would mean that the agreement could be enforced to prevent voting on a resolution to exercise the statutory power of removal. 90 restraining the exercise of corporate statutory powers under the court's jurisdiction to protect against minority oppression, to be bought out or possibly have the company wound up3. the case where, as in a partnership, the shareholders establish the company with a view to exploiting both their capital and their management expertise is another example of a situation where the mandatory rule allowing a shareholder voting majority to remove a director has to be curtailed, not in this case to facilitate the company's dealings with outsiders, but to encourage the establishment of such companies in the first place4• summary it is important to establish whether provisions of the companies act that confer powers on the company are intended to be mandatory in the sense that they deny shareholders the freedom to exclude or restrict the exercise of the power. the best interpretation of the statutory provisions that provide for the alteration of the memorandum or articles is that they do not deny shareholders this freedom. this means in particular that neither a shareholders' agreement restricting voting on the exercise of such a statutory power, nor an agreement by the company not to exercise the power, is inconsistent with or invalidated by the statutory empowering provision. however there may well be other grounds for holding such agreements unenforceable, and arguably the presence of such grounds explains the decisions (including the recent decision in russell) that appear to hold that an agreement by the company not to exercise a statutory power is inconsistent with the statutory empowering provision. the statutory provisions concerning alteration of the memorandum or articles are to be distinguished from the provision of s.303 concerning removal of a director, the whole purpose of which is to confer a power that is incapable of being excluded or restricted by contrary agreement. since s.303 was clearly intended to be mandatory in this sense, it seems to be a flaw in the drafting of the provision that it does not expressly stipulate the shareholder voting rights that are to apply on its exercise, and this flaw was exposed in bushell v. faith. 3. under s.459 or under the "just and equitable winding up" jurisdiction under s.122(1)(g) insolvency act 1986; e.g. ebrahimi v. weslbourne galleries [1973] a.c. 360, re bird precision bellows [1985] 3 all e.r. 523; see gower, p.i54. 4. easterbrook and fischel, above note 13, p.235. 91 the sanctity of the village green: preserving lord denning's pastoral vision* steve greenfield and guy osbomt "village cricket is the oldest team-sport to have survived and adapted, still just about recognisable despite rolled wickets, overarm bowling, whites, pads, and a host of complex rules, it is this sense of a continuous tradition, of ancient links, and english pastoral that tugs at the heart of so many devotees today, "1 the image of village cricket, the quintessential english game, conjures up images of peace, harmony and tranquillity. the community spirit built up over perhaps more than one hundred years is enshrined and embodied in the sporting activities that take place upon the village green, however, behind the idyllic facade may lie more serious neighbourly disputes between those who see the game of cricket as the focal point of village life and a tradition to be preserved at all costs, and those, perhaps newcomers to what may be a closed enclave, who begrudge its very existence, such a dichotomy most recently appeared at slough county court when some of the residents of jordans (a small village near beaconsfield) sought an order enforcing jordans cricket club to erect protective netting to shield their homes or to relinquish the right to play, 2 such cases have previously been considered by both the house of lords3 and the court of appeal4 and have centred upon an attempt to balance the rights of an individual to enjoy the privacy and seclusion of his or her home and the public interest in protecting the environment and by preserving our playing fields in the face of * the title owes a debt to klinck "this other eden': lord denning's pastoral vision", (1994) o.l.l.s., volume 14 no. i. t steve greenfield and guy osborn, senior lecturers, centre for the study of law, society and popular culture, university of westminster school of law. i. r. holt, sport and the british (oxford 1990). max sutton, noted in klinck at 27, defines pastoral vision as referring to ... a picture, literally an "idyll", that represents at least the possibility of a good rural life. while the vision may express individual illumination, more typically it focuses upon some state of communal experience, showing people as lovers, friends, families, and neighbours, who tend animals and the land and yet find time to celebrate what matters most to them ... ". 2. lacey & lacey v. parker & bingle, county court transcript, 12th may, 1994. 3. bolton v. stone [1951] i all e.r. 1078. 4. millerv. jackson [1977] all e.r. 338. 53 the denning law journal mounting development, and by enabling our youth to enjoy all the benefits of outdoor games such as cricket and football."5 whilst the case of lacey is of little value as a precedent it attracted much media attention and showed that the prescient approach of lord denning m.r., whilst dissenting in miller, to be both influential and at one with the public's desire to preserve a little piece of a fast disappearing england. 6 this article approaches the trilogy of cricket cases from two distinct angles. first, we examine the nature of the dispute and more precisely the conflict between the established order of the village and the "newcomer". secondly, we' analyse the application of settled legal principles to the facts and attempt to offer some conclusions as to the success of the courts in resolving a dichotomy imbued with a long cultural and social lineage. the nature of the disputes in all three cases the problems arose after land adjacent to the cricket grounds was developed for housing. in bolton, cricket had been played on the ground of cheetham cricket club since 1864 while the housing development on land, which had been previously owned by the cricket club, finished in 1910. an action was brought by a miss stone in both negligence and nuisance against the committee of the cricket club when she was struck by a cricket ball whilst standing on the highway adjacent to the ground. it was estimated at trial that over a period of some thirty years, since the development had been completed, a ball had been struck onto the highway on some six occasions. the plaintiff was hit by a straight drive which was estimated to have travelled some 100 yards to the point where miss stone was struck. the ball had pased over a 7 feet high fence which amounted to a 17 feet high barrier when the slope of the ground was taken into account. 7 in miller cricket had been played at lintz, in county durham, since 1905. in 1972 the plaintiffs bought a house in a recently built housing estate adjoining the ground where" ... four years ago was a field where cattle grazed."9 lord denning m.r. felt that it was the development itself that had caused the problem: 5. ibid p.345 per lord denning m.r. 6. judge hague found the huge media attention bewildering noting that" ... although this is a local dispute, it has nevertheless attracted a remarkable amount of attention from the national media. quite why, it is difficult to know. perhaps the subject matter touches the lives and stirs the emotions of many people. perhaps it is just an entertaining diversion from the reports of tragedy, crisis and gloom which usually fill the newspapers. perhaps it gives journalists and headline writers the opportunity to sharpen up (and mix) their cricketing and legal metaphors and puns." county court transcript, 'supra. n.2' , pp. 1-2. as will be seen throughout this piece, the judiciary are themselves not beyond such mixed metaphors and forced puns. 7. the name of the batsman is not recorded but this was an exceptionally powerful stroke. it was described in evidence by two senior members of the club as "altogether exceptional to anything previously seen on the ground". 8. miller supra. n.4 p.340 per lord denning m.r. he goes on to add that "the animals did not mind the cricket. but now this adjoining field has been turned into a housing estate." 54 the sanctity of the village green "i must say that i am surprised that the developers of the housing estate were allowed to build the houses so close to the cricket ground. no doubt they wanted to make the most of their site and put up as many houses as they could for their own profit. the planning authorities ought not to have allowed it. the houses ought to have been sited so as not to interfere with the cricket.' '9 the relationship between the club and the plaintiffs was an uneasy one; initially several balls landed in the plaintiffs' garden and damaged tiles and brickwork which led to representations being made to the club. this resulted in the erection of a chain link fence that brought the total height of the plaintiffs' fence to over 14 feet. the club also asked batsmen to try and hit balls for four rather than six so as to avoid the possibility of further damage to the plaintiffs' property. notwithstanding these precautions in the 1975 season 5 balls landed in the plaintiffs' garden, one of which narrowly avoided breaking a window of the room in which their son was sitting. accordingly the family felt unable to remain in the house whilst the cricket was taking place and consequently they sought a remedy against the cricket club based upon negligence and nuisance. in lacey the basis of the plaintiffs' claim was that the intrusion of cricket balls onto their property was dangerous and as such was an unlawful interference with their property. as long ago as 1921 the management committee of jordans village limited 10 had anticipated the land being used for recreational purposes: "[ t] he layout provides for a village green of three acres which will be laid out for sports and pastimes of various kinds." ii the cricket club had begun playing matches on this ground from the early 1920s and at the time of the case there were 49 playing members of mixed ability, most of whom who had longstanding connections with the club and the community. in february 1988 the plaintiffs completed the purchase of their cottage, which faced the green and which was at its most acute 55.5 yards from the nearest pitch. judge hague noted that it is the very nature of the game to attempt to hit the ball towards or over the boundary and that given the proximity of the pitch to the adjoining cottages some interference with property was inevitable. the actual propensity to interference varied between the different houses in different positions around the cricket square and the description of the issues showed a shrewd understanding of cricketing detail by the judge: "there is not much problem from a drive back over the bowler's head, or in the direction of long off or long on, or from (a) fine leg glance or a delicate late cut, or perhaps more elegantly (if the cricket club will forgive me for saying 9. ibid. at p.341. 10. the village had long associations with the quaker movement. in 1920 some members of the movement bought 102 acres of land in the village and transferred part of that land (the green) to jordans village limited, a society created for the express purpose of creating a village community. 11. lacey, supra. n.2, at p.2. 55 the denning law journal so) a snick through the slips or a miss by the wicketkeeper ... the evidence was that it was leg side hits . . . (to deep mid wicket or deep cover point) . . . which tended to be the hardest and the most likely to be lofted, whether by a genuine hook or pull, or by the traditional one-foot-down-the-wicket cross bat slog into what is sometimes called' 'cow shot corner". a hard slog behind the square can certainly be played, but in yillage cricket it is a good deal more rare. most shots going in that direction are the result of either nudges or glances, or of hooks and pulls which have been mis-hit or mis-timed, and as a result have less force ... even in first class cricket sixes over cover point or extra cover are relatively rare.12 it was not disputed that the position of the lacey's cottage, which judge hague deemed to be at backward square leg to the right handed batsman, was one of the areas most likely to be in danger during a cricket match, although not in the "cow shot corner" that the judge felt most vulnerable. 13 there was evidence of actual damage to the houses surrounding the green but there was no evidence of personal injury having been occasioned; since 1967 there had been only two incidents involving broken windows, both of which had been quickly replaced at the expense of the club. as regards the plaintiffs cottage the judge found that at most the ball came into their garden on 5 or 6 times in a season, that these had primarily been at ground level and that there was no evidence of any damage being done to linden cottage in the past. as such, whilst there was a degree of risk such a risk was a very small one. in addition, the club had taken a series of measures designed to further minimise that risk by instructing players not to play shots in that area, asking opposing captains to not put on bowlers who were likely to be hit in that direction and adopting a local rule that any ball hit into that portion of the ground on the full toss would count as 4 and not 6.14 the club'had also looked into the possibility of moving their ground but this would have proved impracticable due to lack of suitable alternatives in the village. is all the cases exhibit the common ground of having to balance the interests of the well established and traditional against those of "newcomers" with perhaps less conservative ideals. however a prime difference is that in bolton the plaintiff suffered physical injury whilst in both miller and lacey although there were allegations of 12. ibid. at p.8 13. the judge's analysis went on to show his wherewithal as regards the current state of cricket when he went on to consider the potential vulnerability if a left handed batsman were at the crease which he felt was increased: ••[of course there are also left'handed batsmen who hit the ball hard. mr brian lara recently reminded us of that in antigua, and continues to remind us at edgbaston if any reminder were needed]." ibid, at p,12. 14. after the conclusion of the case the cricket club amended its rules so that any batsman hitting the ball into the garden was dismissed! 15. one possible alternative, chalky fields, needed levelling and redeveloping and the club would not have been able to play cricket for around three years whilst this work was done. 56 the sanctity of the village green property damage and possible fear of injury no actual physical injury had been suffered. in both the latter cases aspersions were cast upon the soundness of the plaintiffs' fears and the veracity of their complaints. an issue that is referred to throughout both miller and lacey is the relationship between the complainants, the cricket club and the other villagers; judicial sympathy for such complaints is strongly balanced by support for the established community traditions. the concept of the complainant as an "outsider" to the village and the social affairs of the community is further outlined by fraser: "into this neighbourhood, this world of shared values and interpretations enters 'the newcomer';, the ideal and evil other, threatening the peace and harmony, the very existence of the community. the newcomer is foreign, other, dangerous. cricket is tradition, he is new; the villagers belong to the established practices of their cricket, he comes, inserts himself, violates their peace, threatens their very existence." 16 the problem in all three cases was for the judges to apply the established legal principles of nuisance and negligence to what is essentially a social and cultural dispute. in lacey other villagers submitted evidence in support of the cricket club and these views were held by the judge to be "plain and sober and simple notions among the english people". in miller lord denning m.r. explicitly recognised this area of the conflict and the position of the newcomer who seeks to upset the existing order of traditional village life and was cautious about utilising legal provisions to upset an existing status quo that had stood the test of time. the application of negligence and nuisance in bolton the claim was based squarely in negligence and the high court's dismissal of the claim had been reversed by the court of appeal. 17 the house of lords took a unanimous view that the respondent could not succeed in negligence because of the infrequency of cricket balls being hit onto the highway. accordingly the possibility of a pedestrian being injured would not be anticipated by the reasonable man and thus no liability existed: "it is not enough that the event should be such as can reasonably be foreseen. the further result that injury is likely to follow must also be such as a reasonable man would contemplate before he can be convicted of actionable negligence. 16. fraser, the man in the white is always right (sydney, 1993), p.zz: see further mcardle, "governing bodies: sport, the body and r v. brown ", manchester metropolitan university working paper in law and popular culture, series i no. i. referring to the court of appeal's approach in miller, fraser comments: "consider the romantic image of merrie england we are being presented with here. . . a sporting tradition which has existed on that pitch since edwardian times is now under threat from a 'newcomer' , an invader whose selfishness could destroy the fabric of village life and lead to the arrival of new unpleasantries a factory or housing development which surely ought not to be allowed to blight this pastoral scene," at p.z3. 17. the respondent had sued in nuisance also but this had been dismissed at first instance. 57 the denning law journal nor is the remote possibility of injury occurring enough. there must be sufficient probability to lead a reasonable man to anticipate it. the existence of some risk is an ordinary incident of life, even when all due care has been, as it must be, taken." 18 the upshot of the house of lords' decision was that the standard of care to be imposed was not an absolute one but was to be based on a series of factors. whilst these factors undoubtedly include reasonable foreseeability this of itself was not to be the sole litmus test issues such as the likelihood of harm occurring and the purpose of the act were important factors that also had to enter the evaluative equation. 19 the point is, of course, that the entire equation is a fine balancing act and as lord reid observed this case was "not far from the borderline". in miller the plaintiffs brought an action against the club claiming damages for negligence and nuisance and sought an injunction to restrain the club from playing cricket on the ground. at first instance such an injunction was granted and the defendants appealed. both geoffrey lane l.j. and cumming-bruce l.j. found that the club were liable in negligence as there was clearly a foreseeable risk that the plaintiffs would be injured by stray cricket balls and that it would be unreasonable to expect the plaintiffs to remain behind shutters or to leave their house whilst the cricket was on. lord denning m.r. dissented on this point on the grounds that the use of the ground by the club was eminently reasonable: "to my mind it is a most reasonable use. just consider the circumstances. for over 70 years the game of cricket has been played on this ground to the great benefit of the community as a whole, and to the injury of none. "20 this is effectively the same approach demonstrated in bolton, in that lord denning m.r. is once again weighing up the social utility or purpose of the act in question in deciding whether the cricket club have fallen below the required standard of care however the attempt of lord denning m.r. to preserve a little piece of british cultural history failed on this line. the crux of the case as far as the plaintiffs were concerned was essentially the issue of nuisance as the relief which they required was unavailable in an action for negligence.21 here the judicial response was to refuse an injunction to prevent cricket being played, despite a finding that the club's activities amounted to an actionable nuisance, on the basis that the status quo should be preserved after balancing the interests of the individuals with the interest of the public at large: 18. supra. n.3. per lord porter at 1081. 19. see further on this economic analysis of the law of tort, posner (1972) 1 journal of legal studies 29 and the approach of hand j. in united states v. carroll towing co. fnc. 159 f. 2d 19 (1947). 20. miller. supra. n.4 at 344. 21. as lord denning m.r. observed: "the books are full of cases where an injunction has been granted to restrain the continuance of a nuisance. but here is no case, so far as i know, where it has been granted so as to stop a man being negligent." ibid. at 343-g. 58 http://www.ingentaconnect.com/content/external-references?article=0047-2530(1972)1l.29[aid=7385596] http://www.ingentaconnect.com/content/external-references?article=0047-2530(1972)1l.29[aid=7385596] the sanctity of the village green "there is a contest here between the interest of the public at large and the interest of a private individual. the public interest lies in protecting the environment by preserving our playing fields in the face of mounting development, and by enabling our youth to enjoy all the benefits of outdoor games, such as cricket and football. the private interest lies in securing the privacy of his home and garden without intrusion or interference by anyone. .. i am of opinion that the public interest should prevail over the private interest.' '22 the good folk of lintz were therefore allowed to continue to play their cricket on the village green, to continue the tradition started by their forefathers and to enable the traditions of the village to pass down to their own children in due course. the outsider or newcomer was once again given little sympathy when the judges evaluated whether or not to grant the order requested. lord denning m.r.'s general approach is ably demonstrated by lacey, where the plaintiffs argued that the intrusion of cricket balls onto their property amounted to an unreasonable interference with the use of their land. they sought an order that the cricket club erect nets, 25 feet high, in front of their cottage before each game and an injunction to prevent cricket being played on the village green if the protective nets were not erected. although both nuisance and negligence were pleaded, it was agreed that the plaintiffs could not succeed in negligence if they failed in nuisance. judge hague was not prepared to support lord denning m.r.'s radical view of sturges v. bridgeman23 expressed in miller and followed the majority of the court of appeal on this point.24 it was therefore no defence that the laceys' had "come to the nuisance"; he was nevertheless able to distinguish miller on the basis that the risk of injury in the case before him was minimal: "that makes miller v. jackson plainly distinguishable for, as i read it, it was the serious risk in that case that led the majority to hold that there as an actionable nuisance and there is no such serious risk in this case. "25 as there was no actionable nuisance there was no question as to the granting of an injunction, however, judge hague made a strong case, based on the principles laid out in miller, that this would have been refused even had a nuisance been demonstrated to exist,26 this refusal was based on the discretion that the court exercises when considering whether or not to grant an injunction. the points that judge hague thought weighed against the granting of an injunction were; the inappropriateness of the nets, the fact that there was no real hardship to the plaintiffs, the offer of the cricket club 22. ibid. at 345. 23. (1879) 11 ch. d. 852. 24. lord denning m.r. argued persuasively for a review of sturges. "the building of a house does not convert the playing of cricket into a nuisance when it was not so before". miller, supra. n.4 at 344. 25. supra. n.2 at p.14. 59 the denning law journal to erect window grills, that the plaintiffs had come to the nuisance and that the injunction would be damage to not only the cricket club but the interests of the village as a whole thus returning to the approach that lord denning m.r. effectively outlined in miller. conclusion lord denning m.r.'s original analysis is interesting for a number of reasons; not least because of the undercurrent of protecting a little piece of england and a cultural force that deters the folk of the village from turning to more destructive pastimes. the game of cricket is seen both as a microcosm of a utopian society and a clarion call for a return to the values that such a society espouses. the threat to this is embodied in the notion of' 'the foreigner", "the outsider", who has come to invade the sacred social text that is village cricket: "the new, the foreign, the materialistic, all these nefarious elements threaten truth and community. they threaten the community like a virus for like a virus they are foreign. unlike even a virus, however, the newcomer is not natural he threatens cricket ... its values, fair play, gentlemanly conduct, "the spirit of the game", are not only natural, they are public values, constitutive of the social text of what it means to be english. in the final analysis, what the newcomer has done "just isn't cricket" ',27 whilst the judgment in lacey is not as explicit on these themes the intimation of protecting the village interest is apparent. the evidence of others villagers is considered and the balancing of the private and public interest again weighs heavily in support of the collective against the individual. what lacey does demonstrate is that the dichotomy between the established order and the newcomer is both an ongoing and a serious problem. to date the cases demonstrate that the judges will moderate the protection of individual property rights and uphold the collective rights of the majority to continue with established community activities and exercise their judgment with the avowed intention of preserving their own vision of what constitutes life in the community. 26. the main reasons given for the finding that no actionable nuisance existed were: "i. the playing of cricket on the village green is a reasonable and long established use. 2. the risk of serious injury is minimal and the interference with mr and mrs lacey's enjoyment of their property is not undue. 3. such interference is the consequence of the character of the neighbourhood. ie the proximity of the village green. 4. whether the interference is unreasonable must be tested by the standards of average people and not the susceptibilities of mr and mrs lacey. a]though no means conclusive. the willing acceptance by others of comparable interference confirms my view that the interference in this case is not unreasonable." (lacey supra n.2. 27. fraser. supra n. ]6. p.23. 60 occupational pensions: securing the pension promise* roy goodet i received the invitation to deliver this lecture with decidedly mixed feelings. i was, of course, flattered to be asked to contribute to this long-established series so generously sponsored by the royal bank of scotland. but having embarked in 1992 on an enquiry in a field about which i knew absolutely nothing, and spent a fascinating 15 months with extraordinarily knowledgeable colleagues before handing in our report, i have been trying desperately ever since to escape from everything to do with occupational pensions. this has proved a good deal more difficult than i had thought! as i am sure you are all aware, today is the second anniversary of the establishment of the pension law review committee. i will not ask whether you regard this as a happy event or a cause for grief. suffice it to say that our two-volume report, which contains 218 recommendations and weighs some 118 ounces, was delivered to the secretary of state on 30 september 1992, seven consulatation papers were issued by the department of social security [d.s.s.] in the ensuing months,. the most recent publication of the house of commons select committee on social security (on whose recommendation we were set up) is given over entirely to a report on our report, and a government white paper is imminent. what will be in it i do not know. my hope is that it will substantially adopt the package of proposals we put forward, with whatever fine tuning may be necessary. but we shall see. i general considerations my talk tonight is devoted to a central plank of our report, security for the pension promise. by the pension promise i mean the totality of retirement and related benefits promised to a worker by his employer. the provision of an occupational pension scheme is a voluntary act on the part of an employer. it is for the employer to decide whether to provide a pension, what should be the conditions of eligibility and level of contributions and benefits, and what powers of amendment and wind-up the employer wishes to reserve. we have considered that in general the employer should continue * this is the revised text of the royal bank of scotland lecture, delivered at the university of oxford on 8th june 1994. t norton rose professor of english law in the university of oxford, fellow ofst. john's college, oxford. 15 the denning law journal to enjoy these freedoms. there are, of course, existing legislative restrictions on this freedom of trust, such as the preservation of accrued rights after two years' service and the indexation of deferred pensions, and we have recommended a few more. but the employer cannot be expected to leave its future financial commitments to be determined by third parties. what we have said, however, and very firmly, is that whatever benefits are promised should be properly secured. there are many different types of event that can jeopardise the solvency of a pension fund, but they fall broadly into three groups. first, there is deliberate underfunding of the scheme. the employer is not obliged to set up a scheme or to fund it at any particular level. there are many unfunded schemes, primarily top-up schemes to provide pensions above the earnings cap. a measure of funding is required as a condition of tax exemption or to secure contractingout status, but it is a relatively small proportion of the cost of benefits under a normal final salary scheme. secondly, there are the normal forecasting risks: the falsification of economic projections, such as salary growth and the relationship between earnings and prices, and of demographic projections, such as mortality rates and rates of withdrawal through ill-health, early retirement or redundancy. these matters are the domain of the actuary, and they are pregnant with uncertainty. indeed, the only actuarial assumption that is invariably right is that all other actuarial assumptions are invariably wrong! the law faces a delicate problem in this area. on the one hand, it has to respond to the need for flexibility in order to accommodate the myriad situations that can arise. on the other, the range of permitted assumptions must not be so broad as to undermine the entire credibility of the actuarial exercise. this is a problem we urged the actuarial profession to address, and it is doing so with vigour. thirdly, there are what may be termed pathological risks, of the kind so vividly demonstrated by the maxwell affair: excessive self-investment, failure to pay contributions when due, and the theft of pension fund assets or their diversion to improper purposes which wrongfully benefit third parties at the expense of the pension fund. my primary concern is with the security of pensions payable under final salary schemes. members of money purchase schemes may suffer from misappropriation or negligent investment of assets but the risk of ordinary underfunding does not arise in money purchase schemes, which are by their nature fully funded, since the benefits are measured directly by the value of contributions to the fund. there are various ways in which the pension promise may be secured. one is by insuring the benefits, which in this country is very common for the smaller schemes. but wholly insured schemes, which are almost always money purchase, rarely attract the problems i am addressing. another is termination (or insolvency) insurance, of the kind exemplified in america under erisa through the pension benefit guarantee corporation [p.b.g.c.] this form of security no doubt has its place. but as the american experience shows it is no substitute for adequate funding the p.b.g.c. is currently facing a deficit estimated at between 12 billion and 20 billion dollars 16 occupational pensions: securing the pension promise? and one expert has estimated that the total amount of underfunding in the united states amounts to 51 billion dollars and raises a serious moral hazard issue in that the premiums levied on pension funds result in well-funded schemes subsidising those that are poorly run. the third route, adopted in this country for the vast majority of schemes, is funding, and that is the route we have followed. our basic approach has been that schemes should be required to be fully funded at all times. of course, this would not solve all the problems. premature wind-up of a scheme causes problems for scheme members even if there is a sufficiency of assets to cover accrued liabilities, for benefits cease to accrue and the final salary benchmark will be that at the time of wind-up, not the final salary the scheme member would have received if the scheme had continued and he or she had remained in it until normal retirement age. but we did not feel anything could be done about this. just as loss of employment is an inherent, though regrettable, risk of everyday life, so also is the possibility of a scheme wind-up. what one can do is to seek to ensure that the scheme assets are sufficient to cover entitlements accrued up to the date of wind-up. under the present law the employer is liable for any deficiency in assets on the wind-up of a scheme. accordingly so long as the employer remains solvent scheme members are already adequately protected against the risk of scheme insolvency. this is subject to the important qualification that the employer's statutory duty on wind-up of a scheme is not to ensure that the pensions are able to be paid when due but to pay the cash equivalent of the accrued rights. if the actuarial calculation of the cash equivalent turns out to be accurate it will be sufficient to cover the accrued liabilities. but the cash equivalent provisions undoubtedly change the nature of the pension promise, from final salary to money purchase. there is no guarantee that the cash equivalent will in fact be sufficient to purchase or otherwise provide for salary-related pensions. for practical reasons i shall indicate a little later, it has not proved possible to overcome this particular problem. subject to this qualification, there is at the end of the day only one risk for scheme members, the insolvency of the employer and its consequent inability to make good a scheme deficit in accordance with the statutory requirements. unfortunately there is no way of securing the employer's continued solvency. no company, however, strong it may appear, is wholly immune from the risk of insolvency. this means that the present regime, by which statutory liability is imposed on the employer only at the point when the scheme or the employer is wound up, is inherently inadequate, for the protective measure comes too late. what is required is full funding continuously throughout the scheme and steps to ensure that this is maintained. a full funding requirement is, of course, concerned with any case of asset deficiency, from whatever cause, and the first half of my talk will examine the implications of our proposals for funding and the responses these have received. but the risk of loss of assets through pathological events calls for additional protective measures. these will form the second half of this lecture. 17 the denning law journal ii the concept of full funding within the limits of what is practicable our strongly held view was that the pension promise should be fully funded at all times. to promise scheme members more than the scheme can actually deliver is a dangerous snare for members rely, and are entitled to rely, on the integrity of the pension promise. there are those who say that to provide adequate security by a full funding requirement could lead to a reduction in guaranteed benefits and a corresponding increase in discretionary benefits. there is no evidence to suggest that this would happen. but in any event, without full funding, what is the guarantee worth anyway? surely it is better that members should be able to feel the pension promise means what it says than that they should be lulled into a false sence of security by the promise of higher guaranteed benefits for which there is no adequate underpinning. there has in fact been widespread support for our general approach to a funding requirement. the central debate has focused on what full funding entails and how it can be achieved without imposing on schemes burdens disproportionate to the benefits. there are two facets of scheme solvency. one is the cash flow test: the ability of an ongoing scheme to meet its liabilities as they fall due. this is primarily an actuarial matter, but its implications for investment strategy in the case of very mature schemes are only now coming to be recognised. the liquidity of the assets must be responsive to the projected outflows. the greater proportion of pensioners to active members, the greater the degree of liquidity required. i make no apology for stating what may seem to you to be obvious, because i believe it is only recently that those accustomed to seeing the benefits of an 80 per cent investment in equities have started to become uncomfortably aware of the cash flow implications of an ageing membership. it was at one time thought that the ratio of pensioners to active members cease to increase at the point where inflows matched outflows, so that in the graphic words of joanne livingstone, "pension schemes might stay forever mature, but preserved from old age as middle-aged 'peter pans'." unhappily the trend is one of a relentless move to an ageing membership profile. we should do well to consider steps to reverse this trend by taking up the ideas so eloquently advocated by the carnegie report on life. work and livelihood in the third age. i believe strongly that we should seek to increase rather than reduce the labour force and consider a return to the days when there was no concept of automatic retirement at a given age. but all this is beyond the scope of my subject tonight. the second facet of scheme solvency is the balance sheet test: the ability of a scheme to meet its liabilities on winding up. a final salary scheme which is comfortably solvent on an ongoing basis, where no contributions are coming in, payments have to be made only when benefits fall due, and assets and liabilities are valued on the footing of long-term actuarial, assumptions, might well be unable to ensure the discharge of its liabilities if it were to be immediately wound up. why should this be so? the reason is that when a final salary scheme is wound 18 occupational pensions: securing the pension promise up two things happen. first, it becomes necessary to provide for liabilities to existing and future pensioners, and this can be done only by the purchase of annuities and deferred annuities from life offices or (if they were available) long-term fixed-interest or index-linked securities. accordingly the efect of winding up is to convert a revenue liability spread over a long period into an immediate capital, or buy-out, liability. it is this acceleration of future liabilities that lies at the heart of the problem. the securities market has never provided sufficiently long-term securities for pension funds and there is no longer an insurance market for large-scale annuities and deferred annuities at an acceptable price or, indeed, at all. secondly, assets to meet the capital liability have to be immediately available. this means that long-term actuarial values, which can be computed without reference to short-term fluctuations in the market, are replaced by market values, and if the time of winding up coincides with a severe fall in the market the solvency of the scheme may be impaired. how, then, is this problem to be dealt with? one approach, advocated by some, is to abandon the notion of funding for discontinuance liabilities altogether and simply require schemes to be solvent on an ongoing basis. most schemes are intended to continue as ongoing schemes, so why require them to be funded as if they were to be wound up? though this approach seems to have found favour with the select committee, it is not easy to perceive the logic of a solvency standard which works only on the hypothesis that the very situation for which it is designed will never actually happen! another solution, the establishment of a central discontinuance fund [c.d.f.] , is the brainchild of watsons and the government agency. it is a form of insurance against scheme insolvency but with two significant differences. in the first place, the scheme would not pay premiums as it goes. it is only at the point when the scheme folds that the c. d. f. would enter the scene, taking over scheme liabilities for a lumpsum premium represented by the accrued value of the liabilities plus a margin to reduce the risk of the c. d. f. becoming insolvent. secondly, the c. d. f. would operate as if it were itself an ongoing defined benefit scheme and would adopt the equitybased investment strategy characteristic of ordinary schemes. this would reduce premiums compared, for example, with the cost of buying annuities and deferred annuities, and enable the accrued liabilities of the failed scheme to be valued on an ongoing basis. the c.d.f. is an imaginative way of tackling the serious problem of funding for discontinuance, to which i shall return later, but is not without its risks. the government actuary was, indeed, good enough to tabulate for us what he engagingly described as the probability of ruin! for the reasons set out in our report we concluded that there were too many imponderables for it to be endorsed without a good deal of further work, so i shall say nothing further about it tonight. the solution advocated by my committee was to require the purchase of annuities for pensioners in recognition of the fact that the liabilities to them were immediate but to provide deferred pensioners (including the members who were active members prior to wind-up) with a transfer value equal to the cash equivalent of their accrued 19 the denning law journal rights as increased by limited price indexation, but excluding discretionary benefits. the provision of cash equivalents admittedly changes the nature of the benefit from final salary to money purchase, but this is inescapable and is no different from what we have now. schemes that in fact fund for discretionary benefits and salary increases above rpi (retail prices index) (as many do) would have a cushion. moreover, for schemes not predominantly consisting of pensioners the conventional gilts yield assumption could properly be modified to take account of the service profile of members and allow some movement towards equities, and thus the investment strategy of an ongoing fund. this would bring down the transfer price. these were the broad lines of approach adopted by the committee. our restricted timetable did not allow us to get into detail, and we recognised that some fine tuning might be necessary. the actuaries then got to work and it soon became clear that whilst they were in broad agreement with our approach, both as to the need for full funding and as to the impracticability of requiring full buy-out with annuity policies, there was a division of opinion among them as to the likely effect of adopting our proposals as they stood. some considered that this could force schemes either to create mismatching reserves or to shift their investment policy away from equities, with a consequent reduction in long-term returns. others felt that our proposed minimum solvency standard would not create any difficulty, and that such problems as might arise were there already, typically because of a mismatch of assets and liabilities in very mature schemes. the conclusions of the actuarial profession as reflected in their responses to the d.s.s. 's consultation paper are that the committee's approach should work quite satisfactorily if modified in the following respects: (a) instead of adopting a solvency measure based on buying from life offices annuities for pensioners, schemes should value liabilities to pensioners on the basis of the cost of buying best-matched investments. this was seen as a cheaper route, since it avoids the margins built in by insurance companies for expenses, profit and stringent solvency requirements. (b) cash equivalents should be computed in such a way as to reflect the profile of scheme membership, so that for an immature scheme it could be hypothesised that the yield would be largely equity-based, whilst for a very mature scheme a fixed-interest or interest-linked yield would be assumed, as now. (c) for large schemes, which could find the cost of immediate buy-out of pensioners unacceptable, solvency should be determined on the basis that in the event of discontinuance the scheme would be run off as a closed (or perhaps more accurately a frozen) scheme, with an eventual buy-out of residual benefits. this would allow the use of scheme mortality rates instead of the rather lower rates that are normally adopted by life offices. following this response by the institute of actuaries and faculty of actuaries, the department commissioned research from the government actuary's department, 20 occupational pensions: securing the pension promise which studied over 200 scheme valuation reports and concluded that 95 per cent would immediately meet the 100 per cent solvency requirements calculated on this modified basis. similar results were obtained from a survey conducted by bacon and woodrow, which showed that most of the residual shortfall cases were executive schemes for the benefit of restricted groups of members. there seems much to be said for this approach, which adopts a full funding standard, as we recommended, while hypothesising a lower cost for liabilities to pensioners and, in the case of large schemes, a run-off of other liabilities in a closed fund in lieu of an immediate buy-out. final judgement will have to be postponed until the government has crystallised its proposals. i would, however, utter one word of caution. if solvency of an ongoing scheme is to be measured on the basis of a run-off of liabilities in a closed fund, one has to be sure that this is the form of discontinuance that will actually be adopted, and that the scheme will not be immediately wound up, thus entirely vitiating the assumptions predicted on its being run off in a closed fund. iii the treatment of deficiencies it is necessary to distinguish an ongoing scheme from one that has actually been discontinued. in the case of an ongoing scheme funding for discontinuance is on the basis of hypotheses which may never be put to the test or, if put to the test, may not be fully borne out. once a scheme has discontinued the adequacy of its assets can then be established as fact. in addition, there is the question of priorities where there is a shortfall, a problem that does not confront an ongoing scheme. deficiency in an ongoing fund under our proposals, if a scheme at any time fell short of 100 per cent funding the trustees would have to submit a business plan showing how full funding would be restored within three years. but if the solvency level fell below 90 per cent steps would have to be taken to make good the shortfall within three months or such longer period as might be allowed by the pension.s regulator, the supervisory authority we have proposed should be established. there is widespread recognition of the need for a mechanism to enforce the solvency standard. the major argument concerns the treatment of schemes falling below the 90 per cent base level. in particular it is said that: (a) the time allowed is too short; (b) the employer may inject a substantial cash sum to cover what turns out to be .a purely temporary dip in the market and will not be able to recover the over-funding; (c) there are alternatives to a cash injection, such as the provision ofa bank guarantee or other security. 21 the denning law journal there is some force in these arguments. i remain of the view that a drop below the 90 per cent base level is potentially serious and must be dealt with much more quickly than a shortfall in the 90-100 per cent band, though it could be longer than three months. the problem of a cash injection that turns out to be excessive could be dealt with either by the provision of security or by allowing the employer, with the consent of the regulator, to recover any payment that turned out to be excessive to requirements. deficiency on a discontinuance the treatment of a deficiency where there is an actual discontinuance is in some ways simpler because it crystallises the position and to a considerable degree substitutes the known for the unknown. as now, the employer's liability to make good the deficiency then comes into operation. if the employer is insolvent it is then a question whether to apply the scheme priority rules or to substitute statutory rules of priority. it is, of course, a necessary concomitant of funding for discontinuance on the basis of cash equivalents that in the event of a deficiency the liability of the trustees becomes converted from the provision of a pension to the payment of the requisite transfer values. but it is not clear to me why this change should in itself affect the continued application of the priority rules laid down by the scheme. iv pathological events i turn now to what i have described as pathological loss-causing events: non-payment of contributions, excessive self-investment, inappropriate withdrawal of' 'surplus" , and misappropriation of assets. the first three of these can be dealt with quite shortly. non-payment of contributions we had a significant volume of evidence to show that there was inadequate monitoring of payment of contributions, even in the case of insured schemes. we were told of one case in which no employer's or employees' contributions had been paid to the pension fund during the 29 months prior to the employer's insolvency! we have made various recommendations designed to deal with this, including a requirement for the trustees to agree a schedule of due dates of payment with the employer. excessive self-investment at the time of the events arising in the maxwell case there were no legal restrictions on the investment of pension funds in the sponsoring employer. self-investment of this kind reverses the segregation effect of the trust by putting trust funds straight back into the employer's enterprise. subsequently rules were introduced to limit selfinvestment to 5 per cent of a scheme's total resources. unfortunately there are no sanctions for infringement. we have recommended a tightening of the rules in various respects, coupled with penalties for breach. 22 occupational pensions: securing the pension promise inappropriate withdrawal of "surplus" there are several problems with so-called surpluses in an ongoing fund. first, any withdrawal of surplus funds by the employer reduces the security for benefit entitlements. secondly, surplus is all too prone to evaporate, through a sustained fall in the market or an adverse change in the tax regime. thirdly, the very existence of surplus may be open to question, since a relatively modest reduction in the assumed interest rate may substantially reduce the value of the assets. in the lrt case, for example, it was calculated that a reduction of a half per cent in the assumed rate of future dividend growth would bring down the value of the fund by £167 mil ion and the past service surplus from £460 million to £293 million, a reduction of over 35 per cent. accordingly we have recommended further restrictions, including a requirement of consent of the pensions regulator, who we have proposed should be appointed to oversee occupational pensions. misappropriation of assets the really serious pathological event is the misappropriation of scheme assets by trustees or fund managers. the maxwell case is in a class of its own for the sheer scale and variety of methods used to remove pension fund assets from the control of the trustees. securities were sold by fund managers but the proceeds, instead of being paid to them, were transferred to maxwell's private companies. funds were improperly withdrawn and used in unsuccessful attempts to support the share price of maxwell's public companies in order to maintain the value of shares pledged to banks as collateral. pension fund securities were charged to banks as security for loans to the private companies. stock was lent to the private companies without collateral and the stock loan was never repaid. in the macmillan case, as mr. justice millett held, the bizarre situation arose in which a merchant bank with whom shares had been deposited thought they were taking them as security for the loan of treasury bills whereas the chief administrator of the group's pension schemes was under the impression that the bank was borrowing the shares, so that in respect of the same series of transactions each party thought that it was the lender and the other the borrower! all in all, the pension funds lost assets to the tune of some £450 million, though quite a lot of that has since been recovered by litigation, arbitration or voluntary compromise. how could all this happen? first, maxwell himself possessed an overpowering personality in which utter ruthlessness was combined with an irresistible charm. secondly, he had managed to put himself in control of all relevant parties. he was the chairman and controller of the two public companies whose pension funds were raided; he was the chairman of the trustee board; he was the chairman and controller of the in-house fund managers managing a substantial part of the funds; he was also chairman and controller of one of the'principal external fund managers; and he controlled the private companies to which the assets were diverted. in fact, he was well placed to sign documents on behalf of every party to a transaction! thirdly, for psychological reasons it is in many ways much easier to get away with a large 23 the denning law journal swindle than a small one. ask your bank manager for a loan of £5 and you'll be thrown out on your ear! ask for £5 million and you'll be given it without question unless, of course, you bank with the royal bank of scotland! the hardship and distress caused to the maxwell pensioners led to strong criticisms of the present law, many of which, in my view, betrayed a misunderstanding both of the role of the law and the content of the legal rules. it was said, for example, that trust law, which is the foundation of pension schemes, was mediaeval and therefore inadequate, and that it had demonstrably failed in its purpose. that trust law is mediaeval is undoubtedly true. that it is therefore inadequate seems to me a fairly massive non sequitur. it is worth remembering that at the end of the first world war we hanged roger casement for treason under the treason act 1351, which was certainly mediaeval but undoubtedly effective! moreover, trust law cannot prevent breaches of trust any more than criminal law can prevent crime. at best it is a deterrent. there were, however, other more cogent proposals put to us which i will briefly describe. one was that pension fund securities should be designated with the name of the pension fund or its trustees. designation is in fact quite widely used, but would create significant problems in managing pooled funds. moreover, the protection given by designation is legally much more limited than its proponents suppose. the primary utility of designation is in facilitating an audit trail and in preventing the same batch of security certificates being produced over and over again to different auditors. but it is also commonly supposed that if the name of the pension fund is shown on securities certificates third parties buying the securities will be fixed with notice of the title of the pension fund and will therefore be subordinate to the rights of scheme members. this supposition is based on a misconception of the law. specifically it fails to take account of the distinction between a passive, or bare, trust, under which the function of the trustee is purely to hold the legal title without any powers of management, and an active trust, under which the trustees are given full powers to manage and deal in the trust assets. this distinction between the bare trust and the active trust, which our textbooks tend to treat as of little importance, is in fact fundamental to our problem. the reason is that a bare trustee cannot pass a good title to a third party who takes with notice of the trust, whereas in the case of a trustee who has management powers the third party who acquires the trust asset in good faith and for value takes free from the rights of the trust beneficiaries unless he knows not only that the assets are trust assets but that the disposition of them is in breach of trust. the same applies to disposals of securities by a fund manager acting whithin its actual or apparent authority. the separate proposal that all pension fund securities should be held by an independent custodian meets much the same difficulty. pension fund securities are not locked up in a box pending pay-out of benefits. they are constantly being sold and bought. for that purpose the trustees must either do it themselves or authorise someone else, such as fund managers, to do it for them. either way, a custodian given an instruction to release securities for disposal has little choice but to obey the instruction if it is given by a person acting within the scope of his actual or apparent 24 occupational pensions: securing the pension promise authority. a custodian cannot investigate the propriety of every transaction; the delay and expense would be substantial and, indeed, the delay alone could result in substantial loss. so while custodianship, like designation, is useful and widely used, its protective effect should not be exaggerated. we concluded that neither designation nor independent custodianship, however desirable, should be made compulsory. we did, however, recommend a general tightening up of the monitoring of scheme assets by their auditors and actuaries. we also felt that whilst the moral hazard problem made it inappropriate to provide a compensation scheme against market risk, members of a pension scheme, whether final salary or money purchase, could not reasonably be expected to bear more than a small portion of the risk of loss through fraud, theft or other misappropriation. hence our recommendation for a statutory compensation scheme, to be administered by a pensions compensation board, providing for compensation of defrauded schemes up to 90 per cent of the misappropriated assets or 90 per cent of the scheme deficit, whichever was the lower. this would be financed by a post -event levy on all schemes, and there would be power to advance funds prior to, or even without, a finding of fraud in civil or criminal proceedings if the board considered there was strong evidence that this had occurred. i was asked by the house of commons select committee on social security whether, if all our recommendations were to be placed, i could guarantee that there would never be a repetition of the maxwell situation. i replied that if! were to answer yes to that question my credibility would be destroyed forever! the fact is that no amount of rule-making can prevent fraud. all one can do is to make it more difficult and more detectable at an earlier stage, so that losses can be kept down. i believe that the combination of our funding requirements, the supervisory and intervention powers of the regulator, and the enhanced monitoring roles of the scheme auditor and the scheme actuary, will make substantial frauds less likely, and that where they do occur the compensation scheme will largely remove the risk of hardship and distress of the kind suffered by the maxwell pensioners among others. the measures we have proposed to provide safeguards against normal risks and pathological events do not represent a perfect situation, but they do in my view go a very long way to achieving one of our central objectives, security for the pension promise. 25 1 denning law journal 2020 vol 32 p 1-2 introduction the denning law journal team is very pleased to bring you the 2020 edition. in a year of unprecedent challenges and changes, we would especially like to extend our thanks to our contributors who have provided an outstanding collection of articles, comments and book reviews. we also note the passing of a distinguished jurist, ruth bader ginsburg, who was an associate justice on the united states supreme court. she was the second woman to serve on the united states supreme court and is noted as a proponent of civil liberties. this edition of the denning law journal is dedicated to ruth bader ginsburg and the legacy of her work in safeguarding and promoting civil liberties. in this edition, we continue the dialogue that began with our ‘conversations’ feature in the comment section in 2020. the aim of our ‘conversations’ within our comment section is to promote dialogue and debate on issues of importance. stephen pitt-walker continues the consideration of the value of government apologies to indigenous peoples, examining the situation in australia. jocelynne scutt has provided an insightful review of three books which focus on the issues which have been raised by the criminal charges brought against harvey weinstein, a noted hollywood filmmaker. the review deftly explores the themes of power and predation which feature across all three books. our articles also delve into the many diverse and pressing legal issues and developments of our time. frances burton writes of the changes brought about in the family law through the influence of the uk supreme court decision in owens v owens, [2018] uksc 41. this decision, as explored in the article, demonstrates the ability of the supreme court to bring pressure to bear on parliament for statutory change. the divorce, dissolution and separation act 2020 will usher in sweeping changes to the way in which marriage and civil partnership are brought to a legal end through divorce and dissolution. carrie de silva writes about issues of vicarious liability, in the wake of two uk supreme court decisions issued in 2020, wm morrison supermarkets plc v various claimants [2020] uksc 12 and barclays bank plc v various claimants [2020] uksc 13. her article focuses on the relevance of these decisions to the equestrian industry and individuals who are not treated by the business as an employee. vicarious liability, as a doctrine of judicial precedent rather than of statutory origins, can be changed directly by a supreme court ruling, in contrast to the situation that was put forward through the owens v owens decision. issues of liability are also addressed in the article by affifa farrukh. this also examines a critical issue of today, which is one of disparities which might be introduction 2 caused by implicit bias in the health care system. this article explores the ways in which possible occurrences can be most effectively addressed and resolved within the national health care system. andra le roux-kemp examines the purpose of legal education, sited in the contemporary hong kong context. using a narrative methodology, the article asks questions about the relevance of legal education and the influence that cultural values have in the experiences of students studying law, and issues a challenge to legal educators to reconsider the ways in which legal education is delivered. mark pawlowski and james brown co-author an article comparing the english and australian use of constructive trust doctrines to determine beneficial interests in family homes. their discussion demonstrates the far reach of the courts to craft effective solutions using trust canons when there is no statutory remedy available. they suggest that the english approach would benefit from a move to the australian model to create a less-complicated way to determine beneficial interest in the family home. last, but by no means least, we would like to thank all of those on the denning law journal team who contributed to bringing this issue together, and whose dedicated work over a challenging year has been instrumental in bringing this issue to fruition: jo samanta, editorial board member jocelynne scutt, book review and comments editor erin ferguson, editor in charge of production meghan hillis, student editor mayowa olagunju, student editor and a special note of thanks to sandra clarke, dean of law, for her support and recognition of the valuable work of our journal. sarah sargent, chief editor and james slater, production editor december 2020 benjamin franklin in scotland the hon. lord mackenzie-stuart* in the united states they are still celebrating the bi-centenary of their constitution. for those who might be tempted to say that the great philadelphia convention took place during the summer of 1787and that today i am behind the times, may i rejoin that the vital first ten amendments the bill of rights, which for many is at the heart of the american constitution, were not finally agreed until 1792. the united states are therefore perfectly correct in spreading their commemoration over a period of five years. it is, i suggest, only proper that a scotsman should take note since scotsmen and scottish thought played a part in these momentous events. i do not, however, in the course of a short paper intend to get myself embroiled in an attempt to define the scottish enlightenment nor to assess its impact upon the thinking of the founding fathers of the american constitution. where and how one places the limits of the scottish enlightenment seems to me to be a matter of personal choice. no two historians of the period the literature is vast and i make no claim to have mastered it seem to adopt quite the same approach. what does appear important to me, however we define the phenomenon we call the scottish enlightenment, is to see the scotland of the period as a whole. for me, the scottish enlightenment embraces not only the contribution made to philosophy and economics but also to jurisprudence (in its true meaning oflegal philosophy) and also to science in general, natural philosophy, to use the jargon of the day, to medicine, to architecture and to general literature. the social sciences were not then known by that name but important contributions were being made to their understanding during the period in question. here the name of adam ferguson springs to mind and embodies the spirit of the age. not only was he a philosopher, a historian and a man of science. he had fought with the black watch at the battle of fontenoy. the small group of men who assembled at philadelphia during the summer of 1787 numbered no more than 50 at the most. the intellectual level was astonishingly high, particularly when one remembers that the thirteen colonies *sometime president of the court of justice, european communities at luxembourg. this paper is based on an address given at the annual general meeting of the stair society, november 1989. 119 the denning law journal had only three million inhabitants, but the educational background of the delegates was immensely varied and it is difficult to generalise about the considerations which influenced the assembly taken as a whole. after the heady days of the declaration of independence and the debilitating war that followed, when freedom from foreign domination was the driving force, means had to be found to create a government capable of regulating in the national interest thirteen very different political entities and the means to preserve those entities while creating a coherent whole. all this must be seen, moreover, against the background not of known territory and fixed frontiers, as in sea-grit and landlocked europe, but with an ill-defined and ever expanding boundary in view. philosophy has its place, but i believe john dickinson of delaware to have been right when on monday, 13th august, 1787, he said at philadelphia: "experience must be our only guide. reason may mislead us."l with that introduction the moment has come to present our principal player. every century produces a handful of men whose influence is felt beyond the boundaries of their land. of these a few, a very select few, cross the barriers of time in the sense that their discoveries have changed the world in which we live. among such i class benjamin franklin. he was born in boston in 1706,the fifteenth child of seventeen, the son of a poor candle-maker. he apprenticed himself to his elder brother james, a printer. james was something of a rebel against the prevailing theocratic approach of the new england regime and he encouraged benjamin to supplement his almost total absence of formal education. we are told that benjamin owed much to locke's essay on understanding and to addison's spectator. he did not stay long, however, with his brother james but made the first of his four transatlantic crossings to complete his apprenticeship with printers in london where he stayed, close to penury, for some three years. the years following his return need not detain us except to say that during that period we see him becoming a man of consequence in his adopted pennsylvania; printer, publisher including that of a newspaper in german for the pennsylvania 'dutch', i.e., 'deutsch' president of an insurance company and occupied with a multitude of public activities. by 1746 he was a member of the philadelphia municipal council and in 1750 he became a member of the pennsylvania assembly. during the french and indian wars he was to be seen in the uniform of colonel in the british army and he played a notable part in the campaign of 1755 though whether he actually received a commission signed by his majesty king george ii remains in doubt. in the 1750's dissatisfaction was beginning to be felt by the american colonists as regards their treatment by london. again space does not permit of detailed description but it is essential to remember that in the two decades leading up to the declaration ofindependence the problems besetting the colonies, while they may 1. farrand, records of the federal convention, vol. ii, p. 278. 120 benjamin franklin in scotland have had much in common, were by no means the same. pennsylvania, in particular, was a constitutional curiosity. until 1776,it was the personal property of the penn family, under the crown to be sure, but none the less no different from a large country estate. it had its assembly but in the last resort it was, in franklin's day, the penn brothers who were resident in london who had the last word. when in 1757benjamin franklin was appointed the pennsylvania agent in london he had to contend not only with an unsympathetic government but with his own proprietors who had attempted to block his appointment in the first place. franklin's second stay in london, although intended to be relatively brief, lasted until august 1762. moreover only two more years were to elapse before the american packet once again, in december 1764, disembarked franklin on the quays of portsmouth this time for a sojourn of 11years. he returned to the united states in time enough, however, to be one of the signatories of the declaration of independence. yet again he was prevailed upon to cross the atlantic to represent the independent colonies at the court of france there is a superb drawing by gabriel de st aubin of franklin presenting his credentials to louis xvi. there he remained until he returned to the united states to take part given his age a minor part in the great constitutional debate of 1787.he died only three years later but i like the picture of the most talented american of his age nodding in the stuffy atmosphere of independence hall, philadelphia, during the hot summer, legitimating by his presence the whole proceedings. all that would be enough for most of us to assure our niche in the halls of fame. but it was not franklin the patriot, franklin the diplomat, franklin the philosopher that attracted the most acclaim in his lifetime. it was franklin the scientist. in february of 1759, the university of st andrews conferred upon franklin the degree of doctor of laws and the university minute designs him solely as "famous for his writings on electricity". for the rest of his life franklin was commonly referred to presumably with his approval as 'doctor', even after independence. it is not every citizen of the united states who is aware that the doctorate was a scottish one. st andrews singled out franklin's contribution to our knowledge of electricity and this was probably his most important single discovery. everybody knows that he was the first to discover the true, or by modem standards approximately true, nature of electricity. all of us have some picture of franklin's proof of his theories by flying a kite in a thunderstorm, the kite having attached to it a silk thread capable of being charged with electricity. the crux of the experiment, of course, was when franklin approached a metal key hung from the silk thread and generated a spark. not so many are aware that the next two persons who attempted the same hazardous experiment died in the process. to those of a speculative turn of mind may i add the following thought? i quote from azimov's biographical encyclopaedia of science and technology:2 2. pan books (london, 1975), para. 531. 121 the denning law journal "when a quarter of a century later the aged franklin represented the infant united states during the revolutionary war at the court of france he proved the ideal man for the job. not only did his carefully affected republican simplicity perversely appeal to the aristocrats of versailles) but it was the age of reason) and educated frenchmen fell allover the man who had tamed the lightning of the sky and brought it to earth. how much of america's successful birth can be traced back to a kite flying in a thunderstorm?" all this is only to tell half the story. the nature of the gulf stream) bi-focal spectacles) lead poisoning) the lightning conductor as it is in daily use today) the art of learning to swim and canal transportation all find their place in his voluminous correspondence and publications by which he sought to exhort and to encourage. for our purposes today i single out his efforts to devise a fuel-efficient and smokeless fireplace. of this more anon) but at this stage may i recall that one of the earliest prospectuses of the carron company advertised ranges "made on the model of dr franklin's philadelphia stove." which) appropriately) brings us back to scotland. franklin made two visits to scotland. the first lasted from the beginning of september 1759until the middle of october.3 why a voyage to scotland? well) why not? franklin was an enthusiastic traveller. he had many scottish friends in philadelphia and in london. william strahan) his edinburgh born but london based agent and friend of twenty years standing) did business in both capitals and above all the growing importance of scotland in the sciences as well as the arts must have attracted him. moreover it is reasonable to suppose that he wished) as in fact he did) to receive in person his doctorate from st andrews university. franklin) accompanied by his son william) left london at the end of the first week in august and proceeded in a fairly leisurely fashion by the west coast route. on august 29) we find him writing to his wife from liverpool "we have been out now almost three weeks" and even then it was not entirely certain whether affairs of state would allow him to continue the journey as planned. a word about william franklin. he was almost certainly illegitimate "spawned by an oyster wife" as one rather disagreeable divine was to say later. william) however) was at that time a personable young man) a member of the middle temple but actively lobbying for a government post. in this he was eventually successful) being made governor of new jersey. it was) i suppose) inevitable that father and son should fall out over the issue of independence and william died an embittered old man in english exile. the party finally arrived in edinburgh on september 1st or 2nd. i am not going to attempt a day-by-day reconstruction of their activities. we know that the franklins found lodgings with mrs cowan in milne square) then a most 3. i do not give detailed references for what follows. i obviously owe much to j. bennett nolan, benjamin franklin in scmland and ireland (philadelphia, 1938). since then there has been the magnificently edited yale edition of the papers of benjamin franklin. 122 benjamin franklin in scotland respectable address, so we know that benjamin was exposed to the horrors oflife in the old town, horrors which need no describing to an edinburgh audience. in 1759 the nor'loch was as yet undrained and work on the new town had not yet commenced. on 5 september the franklins, father and son, were admitted guild brethren of the city of edinburgh at a ceremony presided over by the great lord provost drummond who has every claim to be considered the father of the new town. as is obvious, such a ceremony could not have been arranged at very short notice so franklin's arrival must have been expected. while the minutes of this occasion are extant the contemporary press reports are meagre, popular attention being more diverted by the presence in craig's close of a camel and a dromedary which daily attracted fascinated throngs. to cut matters short, however, during his stay in edinburgh franklin met to our recorded knowledge almost all the circle of friends and acquaintances whom we associate with the scottish enlightenment. above all lord kames and sir alexander dick, but also both the professors munro, adam ferguson, joseph black and doctors cullen and russell, the future principal robertson and adam smith in all, you would agree, an impressive galere. there is a well known passage in the memoirs of the reverend alexander carlyle 'jupiter' carlyle describing a dinner given by dr robertson at which among other guests of distinction was david hume and this is usually cited as being the first of many meetings between the two men. other sources, however, suggest that david hume was not in edinburgh during franklin's first visit. carlyle does not seem to have taken much to benjamin franklin but in this he is exceptional and the reason may be that he had too many friends in the penn faction. on 17 september, franklin left edinburgh for glasgow, passing en route the site of the new carron ironworks. in 1759, glasgow was a quiet country town but already with a reputation for the quality of the ships which were built on the banks of the clyde. despite its calvinist reputation for low living and high thinking general wolfe, whose death on the plains of abraham took place almost to the hour when franklin was visiting sir alexander dick at prestonfield, described his service there as "dismal quarters with suppers ofthe most execrable food on earth and wines that approached a poison" glasgow was a thriving centre for trade in virginia tobacco and jamaica rum. apart from other contacts franklin was particularly interested in the workshop of alexander wilson who had his type-foundry on university premises. franklin had been commissioned by his philadelphia partner, david hall, to buy a set of wilson type for the philadelphia gazette although in the end he did not do so, preferring the better known caslon in london. also in the same university quandrangle were the premises of the foulis brothers, certainly scotland's most distinguished printers of the eighteenth century. we know that franklin visited the foulis brothers as befitted one printer to another. there is, unfortunately, no 123 the denning law journal record of his having visited the next shop but one where he would have found a sickly young mechanic, largely occupied in repairing musical instruments, whose inventions were to transform the first half of the nineteenth century as franklin's were the second one james watt. the next week or two were taken up with a highland visit, perhaps including a visit to inverary, and on 2 october franklin was in st andrews where he was admitted a guild brother and received by the university in their library, presumably the self-same library described by boswell a few years later when he was unable to show it to dr johnson because some-one had lost the key. despite certain fanciful reconstructions there is no evidence of any public ceremony the degree had after all been conferred some months previously nor any warrant for the attendance of a certain undergraduate of the day, one james wilson, later to be a signer of both the declaration of independence and the constitution and first associate justice of the new supreme court of the united states. a pity, because such a meeting is not impossible since st andrews had only forty undergraduates at that time and such a meeting would at least have been ben trovato. from 4 october to the end of the visit on 12 october the franklins were occupied again by the social round. during this week they found time, in the company of sir alexander dick and lord provost drummond, to visit the royal infirmary, as some years later franklin was to write to sir alexander dick saying of its philadelphia equivalent "we have imitated the edinburgh institution of the infirmary in that remote part of the world." it was from this period too that franklin's friendship with lord kames can effectively be dated, although they had earlier been in correspondence (and on the return journey to england the franklins stayed with lord and lady kames at kames in berwickshire). this week also included some days at prestonfield where sir alexander dick dispensed his habitual hospitality he once said to boswell that he averaged a thousand guests a year. at least as important as the visit itself was the correspondence which ensued between franklin and the friends he had made or whose friendship had deepened on re-acquaintance. in many ways it is franklin the scientist, franklin the practical engineer who comes to the fore. as an example, take the famous franklin fire-place which he refused to patent, saying, with remarkable liberality that" as we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours, and this we should do freely and generously." most would agree that this sentiment is seldom expressed today. sir alexander dick was the recipient of a franklin stove and one was recommended to lord kames for the house which he had inherited through his wife at blair drummond. an allied problem, much in evidence in the correspondence, was that of the smoking chimney, a problem with which lord kames was sorely afflicted. of this franklin had to say (and i take this quotation at random): 124 benjamin franklin in scotland "i have, as you have heard, been dealing in smoke: and i think it not difficult to manage, when one is once acquainted thoroughly with the principles. but as the causes are various so must be the remedies; and one cannot prescribe to a patient at such a distance without first having a clear state of its case ... " before i come to benjamin franklin's second visit to edinburgh, which i shall deal with quite briefly, let me give some explanation of the two most important points which i am trying to make lest it be asked what all this has to do with the development of scots law. the first i have already mentioned in passing. for any scholar of the eighteenth century, as was the case in earlier centuries, knowledge was a single unseamed garment. moral philosophy on the one hand, natural philosophy on the other, were equally the proper subjects of study of any man who claimed himself to be educated. this was as true of the lawyer as anyone else. take lord kames, although perhaps he was an extreme example. we are indebted to professor david walker for the best modern account of lord kames, in which he quotes boswell as saying: "lord kames is a man of uncommon genius, great application and extensive knowledge ... "4 today it is his knowledge of matters outside the field of law and legal philogophy which i would like to emphasise. kames was also, "a commissioner for the forfeited estates ... , amongst other acts prompting walker's and wight's tours and surveys oflarge tracts of scotland, a trustee of the board of trustees for fisheries, manufactures and improvements in scotland from 1755 to 1782, which largely transformed the country from a backward one to an advanced one, as promotor of improved transport facilities, notably the forth and clyde canal and a protagonist in the 1750's and 1760's of the schemes to erect the north bridge, drain the nor'loch, and begin the development of the new town of edinburgh."5 in return we find franklin sending to philadelphia both kames's law tracts and his principles of equity. moreover, franklin whiled away time on his return voyage in 1762 reading kames' elements of criticism. so frankli~'s visit to scotland and the warmth of his reception there provide a clear and concrete illustration of the universality of knowledge to which every educated man aspired in the eighteenth century a factor which no historian, and that includes the legal historian, can ignore. if i have been at pains to emphasise the welcome given to franklin the scientist there is another reason why franklin's scottish connections are of interest to the legal historian. this time it is franklin the diplomat and politician with whom we are concerned. the editors of the franklin papers have, inevitably, found many gaps among the extant franklin kames exchange of correspondence. one such gap concerns lord kames' view on the mounting tension between the london government and the american colonies. that lord kames had an opinion on the matter goes without saying. 4. the scouishjurisrs, p. 240. 5. walker, ibid., p. 238. 125 the denning law journal there is, however, the text of a long letter written by franklin to lord kames in the early part of 1767 and which could easily become the subject of a paper in its own right. by some mischance the letter never reached lord kames in 1767and he had to be supplied with a copy in february 1769.this we know from a postscript to a letter of21 february from franklin to kames in which characteristically the chief topic is not politics but the advantage of using oxen rather than horses to pull the plough and cart. horses, said franklin, require twice the quantity of land to maintain them, and "after all are not good to eat, at least we don't think them so." the postscript in question ends prophetically we are still seven years away from the declaration of independence "things daily wear a worse aspect, and tend more and more to a breach and final separation." the 1767letter (which exists in two versions)6contains a clear and well-ordered presentation of the situation seen through the eyes of the colonists. it is the more interesting since we perhaps forget that until the eve of the declaration of independence franklin thought of himself as a briton he frequently describes himself as such and even had thoughts of settling permanently in the united kingdom. "it becomes a matter of great importance that clear ideas should be formed on solid principles both in britain and america, of the true political relation between them, and the mutual duties belonging to that relation. till this is done, they will be often jarring. i know none whose knowledge, sagacity and impartiality, qualify them so thoroughly for such a service, as your do you." alas, i can find no trace of kames having ever responded to franklin's entreaty nor, indeed, of any scottish reaction to what with hindsight has turned out to be the most important single event of the eighteenth century, the independence of the american colonies. desirous as he was to maintain the union between britain and the colonies franklin was characteristically realistic. he continues: "as to america, the advantages of such a union to her are not so apparent. she may suffer at present under the arbitrary power of the country; she may suffer for a while in a separation from it; but these are temporary evils that she will outgrow. scotland and ireland are differently circumstanc'd. confined by the sea, they can scarcely increase in numbers, wealth and strength so as to overbalance england. but america, an immense territory, favoured by nature with all advantages of climate, soil, great navigable rivers and lakes etc., must become a great country, populous and mighty; and will in a less time than is generally conceived be able to shake off any shackles that may be imposed on her, and perhaps place them on the imposers. in the mean time, every act of oppression will sour their tempers, lessen greatly if not annihilate the profits of your commerce with them, and hasten their final revolt: for the seeds of liberty are universally sown there, and nothing can eradicate them." 6. see the yale edition of franklin's papers, vol. 14, p. 62, for a discussion ofthe problem. 126 benjamin franklin in scotland this astonishingly moderate and far-seeing assessment has to be understood against the legal and political events of the 1760s.the circumstances leading up to the declaration of independence in 1776 are commonly presented as a series of blunders by the british government. blunders there certainly were but the premise from which the government started was entirely rational. the colonies required protection. their trade routes had to be kept open; there were constant threats from the french and from the indian tribes. the colonists were unable or, at least, unwilling to discharge this responsibility themselves. the only alternative was a substantial british military presence and this had to be paid for. by the end of the war ofthe austrian succession the british treasury was empty. it was only reasonable that costs incurred for the benefit of the colonies should be supported by the colonists themselves and the justice of this proposition was recognised by most of them. it was the heavy-handed and uncomprehending manner of its execution which gave rise to resentment and which provoked the great constitutional debate. to summarise that debate in a couple of paragraphs is impossible but it puts franklin's lener to lord kames in perspective to recall that in the immediately preceding years there had been three crucial items oflegislation affecting the daily lives of the colonists, the proclamation of 1763, the sugar act of 1764 and the stamp act of 1765.the first prevented further senlement beyond the alleghenies at a moment when western expansion was taking place. the object of the proclamation was to maintain good relations with the indian tribes which were the source of the valuable fur trade. the sugar act levied a duty on the import of molasses. there was nothing new in this. such a duty already existed as a trade measure. the innovation lay in the express statement in the act that its purpose was to defray the expenses of protecting the colonies that is to say, it was a revenue act. so, too, was the stamp act which imposed a stamp duty on a wide range of documents and affected individuals and business alike. it was this legislation which initiated the constitutional polemic which was to continue until the knot was finally severed by separation. what were the respective powers of the crown, the british parliament and the colonial assemblies and legislatures? was the final arbiter to be found in the principles of natural law to which even the british parliament was subject or was the true basis to be sought in some form of social contract? was there a distinction to be made between taxation which affected the colonies internally and taxation which affected only their external trading relations? franklin in his famous examination at the bar of the house of commons in 1766had, erroneously as most now accept, agreed that the distinction was valid. the repercussions of this debate must have been felt in scotland. as has been said, the contribution of the sconish enlightenment to the making of the american constitution has been studied. what is missing is any study of the sconish reaction to the colonial protests. is this not a field for further investigation by the constitutional lawyer and historian? english material exists in plenty as, for 127 the denning law journal example, in the debate before both houses of parliament concerning the repeal of the stamp act, which was equally unpopular with british merchants, and in the subsequent writings of edmund burke, but the scottish attitude, so far as i know, remains uncharted ground. franklin's second scottish visit must be dealt with more briefly. although we have the diary of henry marchant of rhode island which covers a visit by franklin to glasgow and, on the return, to the carron company, marchant's narrative lacks sparkle and the surviving correspondence is meagre. however on 27 october 1771we find franklin writing to his old friend william strahan in london: "thro' storms and floods i arrived here on saturday night, late, and was lodged miserably at an inn; but that excellent christian david hume, agreeable to the precepts of the gospel, has received the stranger and i now live with him at his house in the new town most happily." the reference to the "new town" is interesting since edinburgh had greatly changed in the twelve years between the two visits. much of milne's court, franklin's former abode, had been demolished to allow for the construction of the magnificent north bridge, at last opening edinburgh to the north. the nor'loch had been drained and although conditions in the old town remained as unsalubrious as ever the new town was taking shape. david hume's house in st david's street was among the first to be occupied and franklin must have been one of his first guests. one of the more endearing aspects of the philosopher was his love of good food his cook peggy irvine had the reputation of being the best in edinburgh and at least one dinner party is recorded with lord kames, dr black, the professor of chemistry, russell, the professor of physics, and adam ferguson among the guests. doubtless there were many such. most of franklin's friends from his first visit had survived and many were in edinburgh to welcome him. robertson was now principle of the university and duly received franklin at his house after breakfast on 31 october. marchant notes in his diary that: "the conversation was much on america's affairs. the geography of ye country etc etc with somewhat respecting scotland & england and her policy with the colonies. dr robertson from his conversation i take to be a friend to civil and religious liberty and fully imagines america must in some future period be the seat of a mighty empire." again one would like to know so much more. to summarise events: on 6 november marchant and franklin set out for blair-drummond, by then the property of lord and lady kames. there is mention of passing en route the forth and clyde canal then under construction and the carron works to which they were to pay a full day's visit later. franklin and marchant stayed at blair-drummond, in part held up by bad weather, until 16 november. the visit seems to have been an extremely happy one but although marchant is ecstatic about the estate and the "sumptuous & lordly and 128 benjamin franklin in scotland hospitable" entertainment offered, there is no account of lord kames' views on the problems of the american colonies nor, indeed, of any other topic of conversation. at glasgow, the travellers again visited the university, franklin, as might be expected, being particularly occupied with wilson's type-foundry "one of the grandest foundry of types in europe", according to marchant and with the foulis press. then via the carron company, which was already making some of the preliminary castings for james watt's steam engine as well as cannon for the war of independence, back to edinburgh on 17november. only a few more days remained. on tuesday, dr franklin dined with lord kames and on the wednesday with adam ferguson, leaving edinburgh on thursday 21st, taking two full days to reach carlisle. one curious omission on this second trip was a visit to prestonfield house to see his old friend sir alexander dick; there is a letter, dated january 11, 1772,to dick in which franklin apologises for this saying: "my last expedition convinc'd me that i grow too old for rambling, and that 'twas probable i should never make such another journey." in fact franklin's days of travel were far from over. four more years in london remained, years of increasing disappointment. in 1775he returned to america to participate in the events leading to the declaration of independence. in 1778 he was accredited to the court of versailles as the ambassador of the new united states of america and spent the best part of ten years there securing the french help so essential in bringing the war of independence to a successful end successful that is from the american point of view. it is, however, probable that his second visit to scotland ended his days of carefree, inquisitive "rambling". earlier in this paper i pictured the elderly franklin dozing through the sultry summer meeting at philadelphia when the american constitution was created. of that distinguished group of men, two were native born scots both of whom i have mentioned, james wilson, educated at st andrews and glasgow, and john witherspoon, late of the laigh kirk of paisley and principal of princeton. wilson was too young to have known well the great names of the scottish enlightenment and witherspoon was a man apart it has even been suggested that he accepted the post at princeton because of his disenchantment with the more liberal views of moderate churchmen such as principal robertson of edinburgh. one may argue, and the debate continues, about the part played by scottish thinking in the solution finally adopted at philadelphia but it was benjamin franklin alone and this is why i commend him to your attention who had not only read the works of the scottish enlightenment but was on easy and cordial terms with the authors. perhaps yet, in some unexplored archive, there is more to be discovered. 129 battered women in fear of luc's shadow "susan edwards introduction recent critique of the law regulating spousal homicide has centred on the obstacles frequently encountered by female defendants: inter alia their relative inability, compared to male counterparts to avail themselves of defences to homicide; self-defence and provocation. this differential experience arises in consequence of the law's construction of the partial defence of provocation, the complete defence of self-defence and the rules governing evidence and admissibility distinguishing fact from law. in this article, the boundaries set by legal rules which distinguish law from fact, including rules of evidence, especially as this distinction is affected by gender, will be examined. 1 it is intended to consider the taken for granted and absolute distinction between common sense and expert opinion, and to consider what kinds of behaviour constitute provocative conduct, to consider how far this reflects all human or primarily the male experience and to examine how far this becomes reconstituted as the core of legal reasoning. it is proposed to consider how the experience of women especially the reaction of battered women in self-defence, 2 provocation 3 and diminished responsibility 4 becomes constituted either as specialist knowledge, and thereby bound by rules circumscribing the admissibility of expert testimony to specific facts, or else is constituted as common sense • buckingham school of law, the university of buckingham. 1 j.m.conley & w.m.o'barr, rules versus relationships (the university of chicago press, 1990); n.r.cahn, "the looseness of legal language: the reasonable woman standard in theory and in practice" 77 cornell l.rev. 1398-1434 (1992). 2 criminal law act 1967 s.3(i). 3 homicide act 1957 s.3. 4 homicide act 1957 s.2. 75 denning law journal knowledge and thereby excluding experts to speak to it. with the consequence that where such facts are unknown to jurors, in the absence of an ascription of mental illness, women's access to the legal defences is eroded. some of these considerations have been explored by inter alia o'donovan, 5 horder6 and mccolgan.7 this article extends this debate to include an assessment of recent case law and case management in the light of thornton (no.2), 8 morhall,9 luc thiet thuan v. r., 10 and parkerll for those defending battered women who kill to include consideration of the retrial of sarah thornton, 12 and the cases of sangha13 and hobson. 14 the "rule" of lord goff in luc holds that only those characteristics relating to the gravity of the provocation are likely to be relevant whilst characteristics relating to loss of self-control are not. whilst a decision of the privy council, in the light of the approach of the court of appeal in parker, 15 its authority is unresolved. this divide re-affirms the earlier reasoning in lesbinil6 which excluded bad-temperedness or pugnacity as a notional characteristic under the limb of the objective test, precisely on the grounds that it went to the defendant's loss of self-control, re-affirming the principles enunciated in welsh: s k.o'donovan, "law's knowledge: the judge, the expert, the battered woman, and her syndrome" (1993) 20 journal of law and society 427-437. 6 j.horder, provocation and responsibility (clarendon press, 1992). 7 a.mccolgan, "in defence of battered women who kill" (1993) 13 ojl.s. 508-529. 8 [1996] 2 all e.r. 1023 (c.a.). 9 [1995] 3 all e.r. 659. 10 [1996] 2 all e.r. 1033 (p.c.). 11 [1997] crim.l.rev.760. 12 thornton retrial, oxford crown court, 13th.-24th.may, 1996. the author attended the retrial and analysis is based on contemporaneous notes of the hearing. 13 [1997] 1 cr.app.r.(s) 202. 14 [1997] crim.l.rev. 759; the times 25th.may, 1997; the independent 6th.june, 1997 (transcript: smith bernal). is supra. n.ll. 16 [1914] 3 k.b. 1116 (c.a.). 76 battered women in fear of lue 's shadow "there must exist such an amount of provocation as would be excited by the circumstances in the mind of the reasonable man, and so as to lead the jury to ascribe the act to the influence of that passion.,,1? recent efforts towards inclusion of battered woman syndrome as a notional characteristic within a defence of provocation demonstrated in the cases of thornton (no.2) ih and ahluwalia 19is now uncertain. how will courts interpret lue and will it make any difference? whatever the "goffian" schema, developed in morhalpo and luc, 21 which determines which characteristics are relevant and which are not, for the battered woman, the violence and the threat of and potential for violence, are realities enmeshed in her knowledge and perception and determine her strategy for survival. in this case then, the "characteristic" is not merely to be constructed as a lowered threshold of self-control induced in a person following years of abuse, but instead is a "characteristic" of intimate knowledge arising as a result of a habituated experience, grounded in observation and prediction. the notional characteristic of battered woman experience includes both these facets. legal rules (a)the dogma of a closed system: legal relevance and exclusion the traditional approach to the metaphysics of law has regarded legal rules as part of a closed autonomous system 22 where law's proper concern is with what is determined by judges who declare law. the belief in the orthodoxy of an unadulterated, entombed and sealed law, focusing "over deterministically" on law as a discrete and isomorphic system with inherently neutral rules, is all 17 (1869) 11 cox 336 at 338. 18 supra.n.8. 19 [1992] 4 all e.r.889. 20 supra.n.9. 21 supra.n.lo. 22 y.kerruish, jurisprudence as ideology (routledge, 1991) at 5; ahunt, "the critique of law: what is 'critical' about critical legal theory?" in critical legal studies, p.fitzpatrick & ahunt (eds.) (basil blackwell, 1987) at 10. 77 denning law journal pervasive. law's rules, relevances, conventions and constructs, as if religious hermeneutic dogma and omnipotent truth, are considered beyond question, unassailable and definitive. challenges to this hallowed orthodoxy have centred on destabilising the credo that judges merely declare law and that legal knowledge is given. 23"the common law is not a brooding omnipresence in the sky."24 such challenges have come from within and without. "those with a taste for fairy tales seem to have thought that in some aladdin's case there is hidden the common law in all its splendour and that on ajudge's appointment there descends on him the knowledge of magic words open sesame. bad decisions are given when the judge has muddled the password and the wrong door opens. but we do not believe in fairy tales any more.,,25 the emergence of legal principles is considered the product of the wisdom of judges, who divine law's "truth." yet in truth judges are merely "reactive agents" who accept or reject the proactive argument counsel put before them.26 indeed, in recent trials of battered women who kill, it has been those challenges to existing legal principles made by defence counsel which have set the agenda(s) for the development of law in this area. in this sense, lord justice beldam, lord chief justice taylor, lord justice hirst and lord steyn, whilst ultimate arbiters of law's "truth," authenticate or invalidate the legal argument on what traits can be considered as notional characteristics within the objective test put before them by lord gifford q.c. in thornton, 27geoffrey robertson q.c. in ahluwalia,28 helen grindrod q.c. in humphreys, 29and michael 23 rcotterell, "law's community: legal theory and the image of legality" (1992) 19 journal of law and society 405 at 414. 24 southern pacific co. v. jensen 244 u.s. 205 at 222 per holmes j.(1917). 2s lord reid in s.lee, judging judges (faber & faber, 1989) at 3. 26 p.devlin, the judge (o.v.p., 1979) at pp.12-13. 27 [1992] 1 all e.r. 306. 28 supra. n.19. 29 [1995] 4 all e.r. 1008. 78 battered women in fear of lue 's shadow mansfield q.c. in thornton (no.2). 30confirming that legal knowledge is dependant upon challenges to law's ontology and the questions that are put to law.3! within this framework the "world known in common and taken for granted" together with the framing of common sense and specialist knowledge, and the way the problem is devised, are all questioned. 32indeed, mr.justice holmes began this process of scrutiny from within: "we are only at the beginning of a philosophical reaction, and of a reconsideration of the worth of doctrines which for the most part still are taken for granted without any deliberate, conscious, and systematic questioning of their grounds.,,33 heisenberg specifies this question thus: "in so far as one can speak about scientific image of nature, one has to treat it not so much as an image of nature but rather as the image of our relationship with nature.,,34 the social theorist c.wright mills alluded to the essence of this reflexivity for the understanding of knowledge: "between consciousness and existence stand meanings and designs and communications which other men have passed on, first in human itself and later by the management of symbols. those received and manipulated interpretations decisively influence such consciousness as men have of their existence."35 30 supra.n.8. 31 j.freund, the sociology of max weber (penguin, 1972). 32 c.geertz, "common sense as a cultural system" in local knowledge: further essays in interpretative anthropology (basic books, new york, 1983); h.garfinkel, studies in ethnomethodology (penguin, 1967); a. schutz, the phenomenology of the social world (heinemann educational, 1972). 33 mr.justice holmes, "the path of the law" (1897) x harv.l.rev. 457. 34 t.shanin (ed.), the rules of the game (tavistock, 1972). 35 cwright mills, power politics and people (o.d.p., 1964) at 405. 79 denning law journal these insights into the problem of reflexivity provide the basis for a critique of legal rules and the provocation problem. (b) interpretative reflexive feminist law. one of the most pressing tasks for the feminist legal critique is an analysis of legal rules and the implications of relevance, inclusions and exclusions for the female subject. 36such critique challenges the fallacy of law's gendered neutrality37 and confronts the masculinism of the "definitions, assumptions and ideals, and epistemological notions of a universal, objective rationality that underlie our legal system," 38exposing both the silencing, contortion and distortion of women's experience in law's constructs.39 feminist legal criticism has demonstrated that law's universal objective rationality, the basis oflegal doctrine, 40espoused in common law and precedent, merely transforms male experience into an "objective" doctrine that passes for the "normative"41 and as reflecting all human experience. 42one of the more conspicuous ways this objective universal legality is constituted is within the 36 e.spelman, inessential woman: problems of exclusion in feminist thought (beacon press, boston, 1988); j.l.orff, "demanding justice without truth: the difficulty of postmodem feminist legal theory" (1995) 28 loy.l.a.l.rev.1197; s.williams, "feminist legal epistemology" (1993) 8 berkeley women's l.j 63. 37 s.l.r.anleu, "critiquing the law: themes and dilemmas in anglo-american feminist legal theory" (1992) 19 journal of law and society 423; n.r.cahn, supra.n.l; r.unikel, "reasonable doubts: a critique of the reasonable women standard in american jurisprudence" (1992) 87 nw. ul.rev. 326. 38 l.finley, "the nature of domination and the nature of women: reflections on feminism unmodified" (1988) 82 nw. ul.rev. 352 39 e.m.schneider, "hearing women not being heard: on carol gilligan's getting civilised and the complexity of voice" (1994) 63 fordham l.rev.33 at 34; m.j.mossman, "feminism and legal method: the difference it makes" (1986) 3 australian journal of law and society 30. 40 v.jackson, "empiricism, gender and legal pedagogy: an experiment in a federal court service at georgetown university law center" (1994) 83 geo.l.j. 461 at 472. 41 j.e.grbich, "the body in legal theory" in m.a.fineman & n.s.thomadsen (eds.), at the boundaries of law (routledge, 1991) at 69. 42 d.nicolson, "truth, reason and justice: epistemology and politics in evidence discourse" (1994) 57 ml.r. 726 at 736. 80 ba tiered women in fear of lue 's shadow "reasonable man" construct, which occupies a centrifugal place in many branches of law, of particular relevance to the objective test in provocation, 43and of specific relevance to women's access to a defence of provocation. the resonance of the standard universal subject permeates beyond the "reasonable man" construct into rather more opaque expressions in the systemic ordering and hierarchy of legal knowledge. the distinction forged between common sense knowledge and expert opinion, the rules which circumscribe the entry or exclusion of this knowledge and the judicial interpretation of these rules are more invasive, determining what is deemed law or fact, what is material or immaterial, thereby fixing the lens of legal cognition. as lacey, wells and meure recognise: " ..rules of evidence and procedure, crucial to the practical impact of criminal law, have been 'adjectival' and largely excluded from studies of criminal law. these rules set out what mayor may not count as evidence, whom it may be given by and about, what form it may take, who may hear it, to what standard an issue must be proved and by whom, when an issue may be withdrawn or introduced."44 common sense knowledge like the "reasonable man" standard is persuasively passed off like a camera obscura as the "immediate deliverance of experience, not deliberated reflections upon it." 45consider the basis of the remarks of devlin, who writing of the common sense framework with reference to corroboration in sexual cases asserted: "[i]t may not be long before the ordinary juryman's and jurywoman's knowledge of sexual cases is sufficient to make a warning unnecessary ..,,46by this he means that knowledge of women's predilection to make allegations of a sexual nature will become part of everyday common sense. what, however, is the nature of the knowledge to which he 43 m.minow, "feminist reason: getting it and losing it" (1988) 38 journal of legal education 47; n.r.cahn, supra.n.1. 44 reconstructing criminal law (weidenfeld, 1990) at 19-20; see also o'donovan, supra.n.s at 428. 4s c.geertz, supra.n.32 at 75-77; r.h.thompson, "common sense and fact-finding: cultural reason in judicial decisions" (1995) xix legal studies forum 119 at 119. 46 supra.n.26 at 195. 81 denning law journal refers? this, he explains when he writes: "a type of case in which a warning is required is that in which a charge of a sexual offence is made by a woman; these are sometimes due to sexual neuroses which can produce phantasies in which the woman half or even wholly believes.,,47 here judicial subjectivism passes off and validates masculinist ideologies as common sense and really "what everyone knows." this rule is now amended in the criminal justice and public order act 1994 where: "any requirement whereby at a trial on indictment it is obligatory for the court to give the jury a warning about convicting the accused on the uncorroborated evidence of a person merely because that person is (a) an alleged accomplice of the accused, or (b) where the offence charged is a sexual offence, the person in respect of whom it is alleged to have been committed, is hereby abrogated.'>48 of legal relevance-battered woman experience in england and wales battered women who kill their abusers have sought to admit evidence of this abuse on two levels. first as evidence of diminished responsibility, and secondly, as relevant at three junctures, to a defence of provocation. (aj battered woman's experience "expert" knowledge. the inclusion and admissibility of any knowledge, and its transfiguration into legal knowledge depends upon one of the main organising schemes of value reference in law the distinction between fact and opinion. this distinction is assumed and unquestioned: "it is as if the idea of distinguishing between fact and opinion was so overpowering in its logic that it simply fell from heaven into the 47 ibid. at 189. 48 section 32(1 )(b). 82 battered women in fear of lue 's shadow vacant heads of the judiciary."49 in truth, knowledge about the fact and nature of repeat violence and its "effects" on its recipients is neither common sense nor expert knowledge; instead it inhabits a hiatus between the two. where this experience is considered relevant to state of mindmens rea as in diminished responsibility, or relevant to a heightened perception of danger as in self-defence, or as a notional characteristic, introduction of this knowledge via the expert is admissible only if the defendant is considered to be suffering from some form of mental illness. this limitation on admissibility of mental state evidence drives the knowledge about the battered woman's state of mind further into a therapeutic enclave, allowing only women who are prepared to acquiesce to the label of "mental illness," the opportunity to introduce such evidence. by contrast, the "male" excuse for violence, articulated in a defence of provocation, is constituted as common sense, avoiding the restriction placed on admissibility of mental illness evidence, or from binding the defendant in the mental illness straight-jacket necessary to a defence of diminished responsibility. the leading case in interpreting the exclusionary rule, turner, 50 established that expert evidence is only admissible if it is "to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury," 51 excluding psychiatric or psychological evidence where the defendant is considered not to be suffering from a mental "illness." this rule has limited expert evidence to a defence of diminished responsibility. in turner, lord justice lawton, excluded evidence which might have furthered the defence of provocation. the defence submission that "personality" i. e. that the defendant had a deep emotional involvement with the victim, which was likely to have caused an explosive rage after her confession to him that she had associated with other men, should be considered as a notional characteristic, was rejected by the court on the following grounds: "we all know that both men and women who are deeply in love can, and sometimes do, have outbursts of blind rage when discovering unexpected wantonness on the part of their loved ones; 49 carol a.g. jones, expert witness: science, medicine and the practice of law (clarendon press, 1994) at 6. 50 [1975] q.b.834. 51 ibid. at 841d. 83 denning law journal the wife taken in adultery is the classic example of the application of the defence of 'provocation,' and when death or serious injury results, profound grief usually follows. jurors do not need psychiatrists to tell them how ordinary folk who are not suffering from any mental illness are likely to react to the stresses and strains of life."52 ' concluding that "psychiatry has not yet become a satisfactory substitute for the common sense of juries," 53tapper notes "[t]he exclusion of opinion evidence on the ultimate issue can easily become something of a fetish." 54when it comes to the admissibility of expert evidence judges are diviners of law and fact, managing, organising, transfiguring and translating social into legal reality. this exclusionary rule has been applied inconsistently, 55condemning to a legal vacuum, evidence which is neither common sense nor satisfies the test demanded for admissibility of expert opinion. as mackay and colman accede 56judicial attempts to divide mental abnormality into conditions that require elucidation and those that do not has been unsatisfactory "privileging certain types of discourse. "57 the inconsistencies in the application of the turner rule can be illustrated by reference to confessional evidence where, the ad-hoc, case-by-case, nature of judicial divining is at its most capricious. in weightman 58the defence was not permitted to call a psychiatrist who would have attested that the defendant "has an abnormality of personality, which can best be described as a histrionic personality disorder, characterised by emotional superficiality, impulsive behaviour when under stress and an impaired capacity to develop and sustain 52 ibid at 841 g, 53 ibid at 843a 54 c.tapper, cross and tapper on evidence (8th.ed"butterworths, 1995) at 545, 55 r.d.mackay & am, colman, "excluding expert evidence: a tale of ordinary folk and common experience" [1991] crim.l.rev. 800, 56 ibid at 810, 57 c.wells, "battered woman syndrome and defences to homicide: where now?" (1994) 14 legal studies 266 at 270. 58 (1991) 92 cr.app.r. 291. 84 battered women in fear of luc's shadow deep or enduring relationships with other people" 59 in order to impugn the reliability of her confession to the killing of her daughter of two years of age. indulging in hair-splitting discrimination, the defendant's abnormality of personality was said not to be mental "illness." lord justice mccowan stated: "at the end of the day however it is very much a question of the facts in a particular case. it seems to us that the principle to be learnt from the cases, notably the case of turner, is that a psychiatrist's evidence is inadmissible where its purpose is in effect to tell a jury how a person who is not suffering from mental illness is likely to react to the stresses and strains in life. the point taken here is that the appellant has an abnormal personality, as was conceded by mr.hunt for the prosecution at the trial. what does that abnormal personality amount to however? it seems to us that it is not something which is beyond the experience of normal nonmedical people. '>60 although in the case of ward, 61where the defence submitted evidence that she was suffering from a "severe and deep rooted" 62personality disorder, it was held on appeal that expert medical evidence of a psychiatrist or psychologist was admissible at a criminal trial on the issue of whether what a defendant had said in a confession or admission was reliable, even where the defendant was held not to be suffering from mental illness, but suffering from a personality disorder described as a mental disorder. this principle derives from toohey v. metropolitan police commissioner 63''when a witness through physical (in which i include mental) disease or abnormality is not capable of giving a true reliable account to the jury, it must surely be allowable for medical science to reveal this vital hidden fact to them.,,64 the court in ward took the view that such evidence would have been s9 ibid at 293-294. 60 ibid at 297. 61 [1993] 2 all e.r.577. 62 ibid at 595g. 63 [1965] ac.595. 64 ibid. per lord pearce at 608. 85 denning law journal admissible at the original trial had it been available, as it preceded turner. although in raghip, silcott & braithwaite, where raghip had a low i.q., the court took the view that such evidence could be admitted. 65it would appear that the courts have distinguished between those cases where medical evidence goes to the issue of confessional evidence, and those cases where evidence of mental illness goes to mens rea. or is this decision merely left to judicial subjectivism, where: "the principle of relevance is portrayed as no more than a conduit pipe for the application of whatever can be presented as reason, the exclusion of facts which might challenge the politics contained in .substantive law can be represented, not as a political decision, but simply the neutral application of the principles of logic to the rules of substantive law.'~6 in pleas of diminished responsibility and duress where women have attempted to rely on battered woman experience to explain their state of mind, the prosecution submit that battered women's evidence is not expert knowledge and thereby ensure its exclusion. an example of such a strategy, although unsuccessful, is found in emery where the defendant was charged with occasioning actual bodily harm on a young child and failure to protect her child from her boyfriend's physical abuse. 67the defence was duress, and defending counsel applied to call two experts, a psychologist and a psychiatrist. the prosecution challenged the application submitting that the evidence to be admitted was common sense and did not require expert opinion to speak to it. mr.justice astill, ruling the evidence admissible, said: "there is potential expert evidence to the effect that if she is right, her will could have been crushed. that would afford her a good defence ..therefore, without further explanation or understanding, the jury's lack of understanding might lead to a guilty verdict, whereas if they were to consider the expert evidence which seeks to explain her conduct, they [might] find her not guilty. it follows from that that in my judgment the effects of abuse of the scale and 6s the times, 9th.december, 1991. 66 d.nicolson, supra.n.42. 67 (1993) 14 cr.app.r.(s) 394. 86 battered women -in fear of lue's shadow persistence she describes might well not be within the capacity of a jury to understand unassisted by expert evidence.,,68 mr.justice astill modified the turner rule in respect of mens rea for duress to allow for admission of expert opinion in accordance with only one of the two criteria: that the knowledge to be admitted was "evidence which was complex and not known by the public at large" thereby circumventing the second tortuous question of whether the mental abnormality of the defendant was one of mental "illness" or not. this modification is critical to the future inclusion of battered woman evidence in cases where that evidence may be said not to constitute a mental illness but a personality disorder. (b) battered woman experience and provocation. where the defence is one of provocation, battered woman experience has been relevant in three ways. (i) cumulative provocation first, battered woman experience is relevant to an understanding of the nature and history of the abuse, whereby the abused woman's common experience that domestic violence is not episodic, but repeated, persistent and escalating, are facts which have been admitted as legally relevant to the background circumstances as part of cumulative provocation. 69such facts have been admitted as common sense and their admission sanctioned as relevant by the court of appeal in thornton (no.2), 70 reversing mr.justice devlin's classic direction in duffy that "[s]evere nervous exasperation or a long course of conduct causing suffering and anxiety are not by themselves sufficient to constitute provocation in law," 71 resolving inconsistency where in fantle, 72 the whole history was deemed relevant, whilst in brown, 73 the history was restricted to the morning of the killing. lord taylor asserted: 68 ibid. at 397. 69 m.wasik, "cumulative provocation and domestic killing" [1982] crim.l.rev. 29. 70 supra.n.8. 71 [1949] 1 alle.r. 932. n [1959] crim.l.rev. 585. 73 [1972] 2 all e.r. 1328. 87 denning law journal "the severity of such a syndrome and the extent to which it may have affected a particular defendant will no doubt vary and it is for the jury to consider ...it may form an important background to whatever triggered the actus reus. a jury may more readily find there was a sudden loss of control triggered by even a minor incident, if the defendant has endured abuse over a period, on the 'last straw' basis."74 lord goff in lue also reaffirms the relevance of cumulative provocation: "their lordships wish to add, as a footnote, that it may be open to a defendant to establish provocation in circumstances in which the act of the deceased, though relatively unprovocative if taken in isolation, was the last of a series of acts which finally provoked the loss of self-control by the defendant and so precipitated his extreme reaction which led to the death of the deceased ...whether such a principle could successfully be invoked in cases such as, for example, the 'battered wife syndrome' is a matter upon which their lordships can in the present case express no opinion, having heard no argument upon it, but must await a case in which the point arises for decision."75 (ii) perception and heightened awareness. secondly, on the question of the "effect" of violence on the abused woman there are two aspects to consider. the first aspect concerns the "effect" of repeat violence on the abused woman's heightened perception and specialist knowledge of the abuser's behaviour, which in tum shapes the abused woman's vigilance and strategy for survival. the effect of repeat violence on perception and anticipation of further violence is relevant to a defence of self-defence and provocation and to the "reasonableness" of the abused woman's response. yet, efforts to assimilate the "effect" of the abuser's violence on the battered woman's "knowledge" of his behaviour and "perception" of likely harm or death, to thereby inform legal argument that self-defence is "reasonable in the 74 see also supra. n.8 at l030c. 75 supra.n.1o at l047a-c. 88 battered women in fear of luc 's shadow circumstances"76 have been, thus far, unsuccessful. 77this is because the meaning of what is "reasonable" accords with, and is bound by, masculine experience and conventions. hence there is the expectation of retreat, the use of proportionate force and a temporal proximity between the threat and use of violence, if selfdefence is to succeed. the battered woman's belief that she is in immediate danger, her perception of the temporal proximity of violence in the absence of "immediate" violence has been excluded as not "reasonable." the meaning of imminent and immediate has been expanded to allow for accommodation of the battered woman's response as a prolonged and chronic rather than acute provocation. there has been an expansion of the understanding oftemporal proximity time lapse from mancini, 78whereupon the requirement was immediate to the morning of the killing, approved by the judge in brown79 although unacceptable to the jury. where trial judges have applied a more narrow approach the court of appeal is reticent to controvert although in many instances it is trial judges who have adopted a broader approach. the adherence to the du.ffy80 formulation is undeniably curious given the wider formulation of "loss of self-control" facilitated in the homicide act 1957, 81 and the common law, pre-duffy, which was less concerned with "suddenness" and more concerned with whether the killing was motivated by revenge. 82 lord chief justice taylor, in ahluwalia explains that, whilst a delayed reaction would not necessarily defeat a defence of provocation "..the longer the delay and the stronger the evidence of deliberation on the part of the defendant, the more likely 76 criminal law act 1967 s.3(1) "a person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders, or of persons unlawfully at large." 77 see rossiter (1992) 95 cr.app.r. 326; gardiner theindependent 3oth.october, 1992; oatridge (1991) 94 cr.app.r. 367; line the daily telegraph 4th.february, 1992; hobson supra.n.14. 78 mancini v. d.p.p. [1942] a.c. 1. 79 supra.n.73 at 1333. 80 supra.n.71. 81 section 3. 82 (1833) 6 c. & p. 157. 89 denning law journal it will be that the prosecution will negative provocation." 83in ahluwalia, 84it is clear that a new meaning is attached to the phrase "sudden and temporary" switching the focus away from the earlier decided meaning of the proximity in time between the last act of provocation and the retaliation as articulated in mancini,8s to embrace a meaning of "sudden" which instead enlarges on the nature and character of the reaction, which incidentally is more consonant with the literal meaning of the word "sudden." indeed smith and hogan write: "it seems that the words 'sudden and temporary,' imply only that the act must not be pre-meditated. it is the loss of control which must be 'sudden,' which does not mean 'immediate' ,,86 whilst this development is novel for the court of appeal, trial judges, whose reasoning is less conspicuous, have often retreated from the duffy formulation placing a greater emphasis on the quality and nature of the response.87 furthermore, there have been limitations placed on the nature of the reaction which has relied on a physical manifestation of anger, rage and passion,88 whereas it is a state of despair, anxiety and trauma which more correctly characterises the abused woman's experience of loss of self-control. (iii) a vexed question battered women's experience as a notional characteristic. the third juncture at which battered women's experience is of relevance concerns the "effect" repetitive violence, including living in continuous fear of further violence, has on mental well-being focussing on anxiety, depression and post traumatic stress and the possible effect on mens rea. it is here that the experience of the battered woman mayor may not result in "battered woman syndrome." this appreciation of the effect of violence and fear of violence on 83 supra.n.19 at 896d. 84 supra.n.19. 8s supra.n.78 at 9. 86 j.c.smith & b.hogan, smith and hogan on criminal law: cases and materials (6th.ed., butterworths, 1996) at 365. 87 see a.ashworth, "sentencing in provocation cases" [1975] crim.l.rev. 552 at 557559. 88 j.horder, supra.n.6. 90 battered women in fear of lue 's shadow mental and physical state has followed on psychological advances identifying and defining a specific condition of "battered woman's syndrome" experienced by victims of repeat abuse. it is with respect to the mental and physical health of abused women that attention has focused both in the clinical and legal setting. in the clinical setting the concern has been to treat the fear, anxiety and trauma of the battered woman, whilst within the legal setting the concern has been to determine whether the battered woman has a lowered threshold of self-control, and if so, whether this should be considered relevant to mens rea. within the clinical arena there is no universal agreement on the nature of the condition, although since 1994 it has been recognised as a mental illness within the british classification of mental diseases. 89 nevertheless, without a more certain symptomatology, diagnosis and prognosis, women's experiences of the effects of battering, encounter difficulties in being used to assess responsibility (mens rea). at the same time, attempts to formulate the "condition" in scientific terms have severely limited its use and accessibility to only those women who display the required symptomatology. walker, from whose work understanding of the condition originally derives, describes helplessness, fear, trauma and entrapment. 90 criticised by feminist psychologists, and controverted by prosecutors, the "syndrome", so-called, it is argued wrongly connotes a mens rea which goes towards explaining why women who are battered cannot leave violent men, rather than explaining the necessity of the last act in their efforts at survival. evidence of battered woman syndrome has constituted a notional characteristic of the objective test in provocation, if it is of the necessary degree of permanence.91 lord chief justice taylor explains: "..depending on the medical evidence, the syndrome may have affected the defendant's personality so as to constitute a significant characteristic ..."92 89 see supra.n.14. 90 l.walker, terrifying love: when the battered woman kills (harper and row, new york, 1989). 91 supra.n.19 at 898a. 92 supra.n.8 at 1030d. 91 denning law journal lord chief justice taylor in ahluwalia, 93in responding to geoffrey robertson's ground of appeal, that the defendant was suffering from battered woman syndrome, such that it had "become a characteristic within the meaning of lord diplock's formulation," 94intimated that if battered woman syndrome evidence had been admitted at the original trial, or indeed evidence of any other specific condition, which could amount to a characteristic, "different considerations may have applied,"95 and thus defacto authenticated the battered woman "syndrome" as a notional characteristic. the idea of a notional characteristic embracing mental state/personality was further developed by lord chief justice taylor in dryden,96 where he concluded that "the obsessiveness on the part of the appellant and his eccentric character" 97was a characteristic. lord justice hirst adopted a similar approach in humphreys, 98and declared a personality with "immature and explosive and attention seeking traits," 9geventhough these traits did not form part of the gravity of the provocation expressly, consistent with the "reasonable man" standard. he added: "[t]he jury would, as ever, use their collective common sense to determine whether the provocation was sufficient to make a person of reasonable self-control in the totality of the circumstances (including personal characteristics) act as the defendant did." neither lord chief justice taylor nor lord justice hirst differentiated between characteristics which formed part of a personality which was predisposed to loss of self-control and characteristics which were manifest features of the individual and specifically referred to by the provocation. the judge must give directions to the jury on both objective and subjective tests indicating what evidence including relevant characteristics might be capable of amounting to provocation 93 supra.n.19 at 898e. 94 ibid at 897d. 9s ibid at 898f. 96 (1995] 4 all e.r. 987. 97 ibid at 998d. 98 supra.n.29. 99 ibid at 1012d. 92 battered women in fear of lue 's shadow (per lord goff in morhall). 100 lord justice stuart-smith in stewart, stated: "in our judgment, where the judge must, as a matter of law, leave the issue of provocation to the jury, he should indicate to them, unless it is obvious, what evidence might support the conclusion that the appellant lost his self-control."lol this suggests that judges must consider, where relevant, instructing the jury to consider battered woman syndrome as a notional characteristic, as well as indicating to them evidence pointing to loss of self-control, thereby divining further what is and what is not relevant. there has been some guidance on the battered woman syndrome as a notional characteristic. lord chief justice taylor, in placing limits on the expansion of a mental state as a notional characteristic in dryden, asserted: "in our opinion it is not enough to constitute a characteristic that the offender should merely in some general way be mentally deficient or weak minded."102 however it seems clear that battered woman syndrome cannot be classified as a mental deficiency or weak mindedness. following the judgment of the privy council in lue thiet thuan v. r., 103the untested status of battered woman syndrome evidence as a notional characteristic is thrown further into question. here, the defendant appealed against a conviction for the murder of his former girlfriend, who had sustained multiple stab wounds consistent with defensive wounds, on the ground that the trial judge had wrongly rejected the defence submission that evidence of a medical condition a form of "organic brain dysfunction" that left him with a difficulty in controlling an impulse as relevant to provocation. lord goff delivering the majority judgment of the board (lord steyn dissenting) rejecting this ground of appeal, declared the recent expansion 100 supra.n.9 at 668. 101 [1995] 4 all e.r. 999 at 1007a. 102 supra.n.94 at 997j. 103 supra.n.lo. 93 denning law journal of the notional characteristic principle in ahluwalia, 104humphreyslo5 and drydenlo6 and by extension, thornton (no.2), 107to be wrong: "but it is an entirely different question whether the mental infirmity of the defendant which impairs his power of self-control should be taken into account; and indeed it is difficult to see how it can be consistent with a person having the power of self-control of an ordinary person."108 lord goff following his earlier reasoning in morhall, 109was critical of those who had followed mcgregor, 110and those who, in recent cases such as newell,"1 had taken the view that the characteristic might be a more transitory phenomenon. in morhall he asserted: "at all events it follows that, in a case such as the present, a distinction may have to be drawn between two different situations. the first occurs where the defendant is taunted with his addiction (for example, that he is an alcoholic, or a drug addict, or a glue sniffer), or even with having been intoxicated (from any cause) on some previous occasion. in such a case, however discreditable such a condition may be, it may where relevant be taken into account as going to the gravity of the provocation. the second is the simple fact of the defendant being intoxicated being drunk, or high with drugs or glue at the relevant time, which may not be so taken into account, because that, like displays of lack of ordinary self-control, 104 supra.n.19. los supra.n.29. 106 supra.n.94. 107 supra.n.8. 108 supra.n.1o at 1041b. 109 supra.n.9 at 659 & 667e-f. 110 [1962] n.z.l.r.l 069. 111 (1980) 71 cr.app.r.331. 94 battered women in fear of luc 's shadow is excluded as a matter of policy." 112 he argued that the meaning of english statute could not be derived from mcgregor 113 and, secondly, that the new zealand case law in mccarthy 114 had trenchantly critiqued and disapproved of the earlier approach taken in mcgregor upon which the cases of taaka, 115 and leilua116 had relied. lord goff argued that this reasoning had resulted in an "unhappy influence" 117 on the development of english case law, in the cases of ahluwalia, 118 dryden 119 and humphreys 120 especially. indeed as lord chief justice taylor asserts in dryden 121_ "[w]hat characteristics are appropriate for the jury to consider has been a vexed question since camplin." in luc, 122 lord goff returned to his reasoning in morhall, 123 where he had distinguished between those cases where loss of self-control is the result of provocation which is directed at the characteristic and where loss of self-control is not specifically the result of provocation being directed at that characteristic, relying on the earlier argument of ashworth, who asserted: "the proper distinction ..is that individual peculiarities which bear on the gravity of the provocation should be taken into account, whereas individual peculiarities bearing on the accused's level of 112 supra.n.9 at 667e-f. 113 supra.n.iio. 114 [1992] 2 n.z.l.r. 550. lis [1982] i n.z.l.r. 198. 116 [1986] n.z.recent law 118. 117 supra.n.lo at 1044c. 118 supra.n.19. 119 supra.n.94. 120 supra.n.29. 121 supra.n.94 at 997a. 122 supra.n.io at 1044f. 123 supra.n.9. 95 denning law journal self-control should not.,,124 his consideration of ashworth goes considerably beyond the now permitted reference to parliamentary debates in pursuit of the interpretation of statute (ej pepper v. hart 125)maligned earlier in davis v. johnson. 126 lord goff asserted that it would very rarely be necessary to explain this distinction to the jury presumably because they would understand it. 127it is suggested that this fails to consider the following point. whilst an example of where the notional characteristic was affected by the gravity of the provocation would be provided where, for example, a man with an exceptionally large nose is taunted about it, and an example of the notional characteristic provided by the loss of self-control would be provided by a man claiming provocation because of over-sensitivity, or an inability to control a temper, it is rarely ever the case that this distinction presents itself so clearly distinguished and caricatured. indeed on this point lord steyn in lue 128found that there was no such spurious and artificial and restrictive rule which excluded from consideration characteristics which went to loss of self-control "[i]n my view a jury would be rather puzzled by such artificially compartrnentalised direction."129 the accommodation of notional characteristics of the accused has softened the objective test in order to allow for consideration of the impact of provocation on one especially predisposed to a specific provocation. case law indicates that whilst an excitable personality or quick temper cannot rely on provocation, 130 it would be difficult to see how a battered woman who was being abused could not rely on this feature as a notional characteristic since the provocation if not expressly, then impliedly, goes to the characteristic. the battered woman is targeted repeatedly by her abuser precisely because she is a battered woman. it is argued here that the battered woman characteristic also goes to the loss of self124 a.ashworth, "the doctrine of provocation" [1976] cl.j 292 at 299. 125 [1993] 1 all e.r. 42 (h.l.). 126 [1979] a.c. 264. 127 supra. n.1 o. 128 ibid at l048g. 129 ibid at l049g. 130 supra.n.16. 96 battered women in fear of lue 's shadow control, since the fact of being repeatedly battered alters and effects her perception of her abuser and her response to what the non-battered woman may only consider slight provocation. simply the battered woman knows of what the abuser is capable! it seems that lord goff's reasoning and close inspection derives from a repugnance with the alternative outcome in lue, 131if the notional characteristics were to be accommodated. indeed lord chief justice taylor had earlier in morhall,132 resisted lord goff s reasoning on similar grounds of repugnance: " ..logic would demand similar indulgence towards an alcoholic, or a defendant who had illegally abused heroin, cocaine, or crack to the point of addiction. similarly, a paedophile, upbraided for molesting children, would be entitled to have his character weighed in his favour on the issue of provocation"133 lord steyn argued that the purpose of the courts is to work out "sensible and just solutions," 134arguing for the relevance of personality disorder affecting selfcontrol on the basis that: "the view of the law contended for by the prosecution will inevitably lead to injustice. it will result in convictions of murder and mandatory life sentences in cases where that is wholly inappropriate. in my view our law does not compel such crude and unfair results.,,135 he concluded that the decisions in ahluwalia and dryden are the expressions of the dictates of justice over the prompting of legal logic. 136"in the meantime nobody should underestimate the capacity of our law to move forward where \31 supra.n.io. 132 supra.n.9. 133 ibid. at 663b. 134 supra.n.lo at i05ia. 135 ibid. at i049g. 136 ibid. at 1055d n.b.lord steyn supported lord goff's opinion in morhall. 97 denning law journal necessary, putting an end to demonstrable unfairness exposed by experience,"13? an allegiant to the way opened and the path shown by lord chief justice taylor, a dynamic and creative law-maker and man of justice. walking in the shadow of luc the authority of the privy council in luc of course is not absolute, although smith and hogan argue: "decisions of the privy council are not binding on english courts; but when the board consists of five lords of appeal and may be thought to represent the opinion of the house of lords, it can hardly be ignored,,138 in any event, whatever the status of luc, the reasoning replicates that hitherto developed by the house of lords in morhall, whilst the court of appeal in parker139 has refused to follow luc, although the grounds for dissension, whether in whole, or in part, were not explicated. justice for battered women who kill, continues to be cloaked in the shadow of luc and morhall. recent case management in cases involving battered women who kill, post-luc, reflects a predilection towards a defence of diminished responsibility in order to avoid inviting the prosecution challenges that would inevitably flow from the . reasoning in luc, as the following cases strongly suggest. (a) the thornton retrial diminished responsibility and provocation. the retrial of sarah thornton at oxford crown court on 13th. may, 1996 was expected to rely on fresh evidence relating to battered woman syndrome. such evidence was not to play any part, whether as an element of psychiatric evidence and therefore expert opinion under the limb of the defence of diminished responsibility, or as a characteristic of the "reasonable man" under the limb of the objective test of provocation. pleading diminished responsibility and provocation together, the boundaries of reasonableness and unreasonableness, 137 ibid at i055g. 138 supra.n.85 at 432. 139 supra. n. 11. 98 battered women in fear of lue 's shadow common sense knowledge and expert opinion were deliberately blurred. so too was the burden of proof on the defence to prove diminished responsibility on the balance of probabilities, and in provocation on the prosecution to prove beyond all reasonable doubt that the case was not one of provocation. it was perhaps an understandable strategy, since at the pre-trial conference preceding the original trial, that lack of intent involuntary manslaughter unlawful and dangerous actprovocation diminished responsibility were all canvassed.140 at that first trial, thornton pleaded diminished responsibility, the jury considered the medical evidence insufficient, or not such as to impair substantially her responsibility. counsel did not rely on provocation, although it was a defence put to the jury by the judge and similarly rejected by them. an appeal was won on the ground that battered woman syndrome had not been properly considered by the judge as a notional characteristic of the accused. on retrial, the mainstay of the defence argument was evidence of cumulative provocation that of a chronic alcoholic husband who was on occasion violent on a person suffering from an abnormality of mind. this in tum was considered for its impact on an "alcoholic's wife," which it was submitted constituted a notional characteristic. dr.glatt, in written evidence, delineated the characteristics of an alcoholic's wife: "gradually worn out by emotional strain and stress, living on the edge of a volcano such a wife might frequently lose her selfcontrol which might snap suddenly when something for her may become the last straw any reasonable wife would be affected."141 defence counsel, michael mansfield q.c., presented the culmination of this as "[i]t's the snap, it's a bridge too far, a straw too much.,,142the defendant's evidence to establish diminished responsibility was evidence of an histrionic disorder, including attempts at suicide, being found walking naked by police in withington, manchester, clutching a teddy-bear, the latter incident resulting in admission to hospital under the mental health act 1983. thornton, it was said, satisfied the criteria of someone suffering from post traumatic stress disorder. it was unclear whether this post traumatic stress disorder was to form a part of the 140 supra.n.27 at 311j. 141 supra.n.12. 142 ibid 99 denning law journal diminished responsibility, and thereby requiring experts to speak to it, or a notional characteristic and part of a defence of provocation, and thereby common sense knowledge following the turner rule. summing-up michael mansfield said: "you have a sense of the pressures a pressure cooker .. we have a complicated situation living with an alcoholic and having a disordered personality.,,143 in redirecting the jury on provocation, mr.justice scott baker said: "~ovocation is a single act or a series of acts done or words said or a combination of both which causes in the defendant a sudden and temporary loss of self-control which would cause a reasonable person to lose self-control and behave as the defendant did. provocation may have been such that it caused a temporary loss of self-control and at that time not being master of his mind. it is not enough to be made angry or smouldering resentment or revenge." elaborating further on what factors might constitute characteristics, he asked the jury to consider whether she was "unable to control herself ...unable to stop .. whatever provoked the defendant to lose her self-control must have made an ordinary reasonable and sober woman in the same position as the defendant react as the defendant did affecting the gravity to her.. an ordinary reasonable person with such characteristics. the characteristics you may consider are the defendant's personality disorder and the background of living with malcolm thornton, an alcoholic, and the domestic circumstances between them, that is whatever she had to put up with before .. you are entitled to look at previous conduct that the deceased was an alcoholic."144 psychiatric evidence submitted on behalf of the prosecution sought to demolish any suggestion that she was suffering from battered woman syndrome pointing 143 ibid. 144 ibid. 100 battered women in fear of lue 's shadow out that she did not fit the stereotype: "she appears resourceful and determined rather than in deep despair. there is no evidence that she has lost self-respect or esteem or given up in despair. it is not a picture of a person who is seriously anxious, depressed, nor self-loathing." it is particularly this limitation which has so often been fatal to adducing battered woman syndrome as a defence. two psychiatrists for the defence gave evidence that she suffered from a mental disorder which they considered "equivalent" to battered woman syndrome. acquitting her of murder and convicting her of manslaughter, mr.justice scott baker sentenced thornton to a term of five years' imprisonment, which she had already served, on the basis, not of provocation, but of diminished responsibility! 145 the inability of many battered women to fit the passive victim stereotype of the syndrome has constituted a key obstacle to its admissibility in the u.s.(see united states v. wilson 146 & united states v. whitetail 147) as well as in england and wales as the thornton cases suggest. there has been, however, some limited expansion of the characteristics of the syndrome to allow for the admissibility of battered woman syndrome in cases where women are resourceful and not passive see for example bennett (no.2). 148 there are further objections to the admission of battered woman syndrome under a diminished responsibility defence where the syndrome creates a "pathological cul-de-sac" for women, 149 shifting the vortex away from the reasonableness of the defendant's action onto the unreasonableness and abnormality of her state of mind. the decision in the thornton retrial, not to rely on battered woman syndrome is indicative of the defence's anticipation of the pitfalls of fitting the syndrome typology in its entirety to the defendant, together with the difficulties in arguing battered woman syndrome as a notional characteristic under provocation. 145 s.s.m.edwards & cwalsh, "the justice of retrial" (1996) 146 nl.j 857. 1462nd.february, 1993 lexis transcript no.4584. 147956 f.2d.857 (1992). 148o.j.no.892 cited in e.sheehy, "battered woman syndrome: developments in canadian law after r.v. lavallee" in women, male violence and the law edited by j.stubbs, the institute of criminology monograph series no.6, sydney, australia. 149h.kennedy, eve was framed (chatto and windus, 1992) at 94. 101 denning law journal (b) sangha more abuse but more diminished responsibility. again the shadow of luc casts its silhouette on trial management in the case of sanghalso where a provocation defence might well have been the strategy prelug. in sangha a battered wife killed an abusive and adulterous husband, and also tried to kill herself. her defence was one of diminished responsibility. the facts suggest clearly that a defence of provocation would have been available and certainly preferable, given that the battered woman defendant does not see herself as mentally ill, but sees her actions as reasonable. however, given the debate which has bifurcated the evolution of the notional characteristic into those characteristics which go to the gravity of the provocation and those which go to the loss of self-control, only the former being legitimate, undeniably the safer strategy is a defence of diminished responsibility. "mr.singh has described the catalogue of mental and physical cruelty and abuse to which the appellant was exposed by her husband over a period of more than 20 years of marriage. it is summarised as having included regular violence between 1975 and 1990. incidents involved her being punched, kicked, almost strangled, struck with a walking stick and with a pan, beaten whilst she was pregnant and beaten in front of her parents. it is said that her husband showed her no love, care or affection but, on the contrary, was liable to force physical sex upon her without her consent. he would sulk and refuse to speak to her for periods of days or even weeks. he took from her all that she earned and used her wages for his own purposes or, on occasion, to send to his own family abroad. he made degrading comments of a sexual nature to the appellant and even to her sister. he drank regularly to excess, either in the house or by staying out late for the purpose. he would mock her religious beliefs: an example of that was intentionally using her pans to cook meat despite the fact that for religious reasons she is herself a vegetarian. he showed (and this is important) violence to his children from time to time. in october, 1990 he beat two of his three daughters over the head with a hockey stick, as a result of which they were bruised, and the consequence of that ultimately was that all three daughters, to the great distress of the appellant, were taken into,care; for that offence the husband was convicted of assault occasioning actual. bodily hann. although iso supra.n.13. 102 battered women in fear of lue 's shadow physical violence to the appellant evidently ceased after 1990, it continued in relation to the children. on one occasion the thrashing of one of the sons left him black and blue, and on another occasion drew blood. we have already described the extent of the work that both at home and in the course of her employment was carried out by the appellant. it is said on her behalf that the cumulative effect on her was very damaging. she coped for long periods but would from time to time become distraught and depressed. that resulted in five separate occasions over the years on which she attempted to take her own life. they showed a desperate and depressed woman who, as it is said on her behalf, could see no way out of her plight. "151 the defence strategy might well have been that of provocation although in the light of morhall/luc the outcome of a provocation defence was less predictable than that of a defence of diminished responsibility. (c) hobson u-turns battered woman experience as diminished responsibility. luc similarly cast a shadow in the appeal of kathleen hobson against her murder conviction on 19th.october, 1992 at liverpool crown court. 152 hobson stabbed and killed her abusive and alcoholic partner. her defence of self-defence failed. there had been a history of violence. at the first trial, no evidence of battered woman syndrome had been admitted. the grounds for appeal were tllat at the time she was suffering from battered woman syndrome and would have therefore pleaded diminished responsibility. helena kennedy q.c., counsel for hobson, did not argue on appeal, (as well might have been the case before lue) that a defence of provocation had not been adequately put by the judge as an alternative to self-defence, or that battered woman syndrome was relevant to a defence of provocation. the facts clearly indicated a history of violence and evidence of cumulative provocation. the appellant had endured considerable violence at the hands of the deceased over some 18 months prior to the offence, she had called the police on some 30 previous occasions, making formal complaints on four oc:casions. the evidence of two psychiatrists, dr. mezey and dr.ghosh, was that hobson was suffering at the time from battered woman syndrome, although it was not at the time of the original trial recognised as a iii ibid. il2 supra.n.14. 103 denning law journal mental illness. "it was not until 1994 that battered womens' syndrome was included in the standard british classification of mental diseases, although, prior to that date, it had been included in the american classification. in consequence, at the time of the appellant's trial in 1992 it would not have been a condition which would have been readily considered by practising british psychiatrists, save the relatively small number who had a particular experience and expertise in relation to that condition. battered womens' syndrome is a variant of post-traumatic stress disorder." it was also added "that that condition, if it existed at the relevant time, was material to the defendant's characteristics when they fell to be considered in relation to the defence of provocation under s.3 of the act." me.riordon q.c., for the prosecution, whilst accepting the existence of battered woman syndrome and its relevance to diminished responsibility, argued that the symptoms she had were not of a degree which would give rise to an abnormality of mind, such as to sustain a defence of diminished responsibility. a retrial was ordered. a legal prosthetic? whichever way the experience of battered women is legally reconstituted in the future either as a notional characteristic or as an abnormal mental state it remains a precarious appendix to a systemic masculinist law. how can the feminist challenge to law advance when the systemic organisation of law's fabric remains masculinist? in the united states there have been some successes in challenging law's frame of reference. the "wanrow jury instruction" 153 is a product of a recognition that the standard universal subject speaks exclusively of men. the court in granting wanrow a retrial held that the defendant's actions are to be judged against her own subjective impressions and not those which a detached jury might determine to be objectively reasonable. 154 other attempts to address the genderism of legal rules on the basis that a rule in respect of modus operandi may not be applicable to women, is provided in easterling v. state, where the defendant was grabbed by the hair, beaten and choked by the 153 559 p.2d.548 (1977). 154 ibid. at 558. 104 battered women in fear of luc 's shadow deceased. 155 she then stabbed him. the court, on appeal, recognised that particular physical attributes of a defendant might justify her use of a dangerous weapon to repel an unarmed attacker. in ellison v. brady, a nominally feminist "reasonable woman" standard was adopted for sexual harassment in the workplace. 156 in andrews v. city of philadelphia two female police officers who were subjected to derogatory name calling and pornography at work, had their complaint assessed in accordance with a "reasonable woman" standard, a work environment hostile and offensive to women of reasonable sensitiveness.157 however, merely adding women to law 158 to accommodate battered women's experience has been widely argued to be incapable of resolving the problem.159 women's experiences are either excluded or, if included, are hardly recognisable, reconstituted and transfigured by law, these experiences must fit within pre-existing frameworks, rules and conventions. this means that the woman in fear of her life who acts in self-defence surviving in the shadow of lue must plead diminished responsibility however mismatched. thus the lack of synchronicity between women's experiences and the way in which law includes and thereby misframes them continues. it is not possible to skin the law of its masculinism, nor is it enough to engage in grafting women on through some politically cosmetic prosthesis solution, the morphology and ontology of law must continue to be confronted immediately and the artificiality of rules and relevances such as the "rule" in lue resisted. iss 267 p.2d 185 (1954). 156924 f.2d 872 (9th.cir., 1991) at 878. 157895 f.2d.1469 at 1480 & 1481 (1990). 158 c.smart, feminism and the power of law (routledge, 1989) at 66. 159 supra.n.57 at 275. 105 restraining the exercise of corporate statutory powers peter jaffey* introduction much recent debate on company law has concerned the issue of contractual freedom: to what extent should the rights and duties of the shareholders and the directors inter se, in the memorandum and articles and in other contracts betwen them, be a matter to be determined by agreement between the parties, rather than being stipulated by law? when should company law merely provide "default" or "background" terms and when "mandatory" termsl? where no mandatory term applies, it is also necessary to consider what provision should govern alteration of terms. alteration will often be desirable, but to require the consent of all the shareholders may not be practicable; on the other hand to allow alteration without unanimous consent creates the possibility that an alteration may be made that, without any quid pro quo, adversely affects a shareholder's interests2• under the companies act 1985 (and previous acts), the alteration of provisions of the memorandum and articles is governed by a number of ' 'statutory empowering provisions", which confer powers on the company to effect particular alterations. these include s.9, which provides for alterations of the articles by special resolution, s.4, which provides for alteration of the objects by special resolution, s.121, which provides for alteration of the company's share capital by ordinary resolution, and s.135, which provides for a power to reduce share capital by special resolution. how are these statutory provisions to be understood? to what extent are they to be interpreted as mandatory provisions, which invalidate a provision purporting to exclude or modify the power, rather than default provisions, which leave it open to shareholders to reach different arrangements governing the alteration of provisions of the memorandum and articles? this issue, and in particular the validity of various types of restriction on the exercise of a statutory power, is the main subject of this article. * department of law, brunei university. i am grateful to chris ridley, len sealy, fiona padfield, loraine watson and brian davenport for their comments on a draft of this article. i. a default term is a term that applies subject to contrary agreement, like provisions in table a (see companies act 1985 s. 8(2»; a mandatory term applies irrespective of contrary agreement, like the statutory provisions imposing directors' duties. see eisenberg (1989) 89 colum. l. rev. 1461 at 1463. the different positions on the debate on freedom of contract are summarised in bebchuk (1989) colurn. l. rev. 1395; and see generally the november 1989 issue of the columbia law review. see also riley (1992) 55 m.l. r. 782. 2. or at least denies a shareholder the right to judge for himself whether the alteration is against his interests. 67 http://www.ingentaconnect.com/content/external-references?article=0010-1958(1989)89l.1461[aid=6655170] http://www.ingentaconnect.com/content/external-references?article=0010-1958(1989)89l.1461[aid=6655170] http://www.ingentaconnect.com/content/external-references?article=0010-1958(1989)89l.1461[aid=6655170] the denning law journal a provision purporting to override or modify a statutory empowering provision might arise in a variety of forms. first, it might appear in the memorandum or articles themselves. a provision of the memorandum or articles might purport directly to exclude the power, or to modify it, for example by providing that an ordinary resolution rather than a special resolution is sufficient for the exercise of the power; or the memorandum or articles might confer a class right on one or more shareholders, purporting to make a provision of the memorandum or articles immutable except in accordance with the agreement of the class; or the articles might purport to allocate "weighted voting rights' , in respect of the power so as to give particular shareholders effective control over its exercise. secondly, a provision purporting to override or constrain the exercise of the power might appear in an extrinsic shareholders' agreement between some or all of the shareholders restricting the shareholders' freedom to vote on a resolution to exercise the power. thirdly, such a provision might appear in the form of a contractual undertaking by the company not to exercise the power, and such an undertaking might be in a contract with a shareholder, or with an outsider. some of these issues were at stake in the recent and much discussed case of russell v. northern rank3• in russell, the issues were whether a shareholders' agreement was invalid if it purported to prohibit the shareholders from voting on a resolution to exercise the statutory power to increase share capital under s.1214, and whether an agreement by the company itself was invalid if it purported to prohibit the company in general meeting from exercising the power under s.12j5. thus the question was whether s.121 was mandatory, although the house of lords did not express it in this way. in this article most of the discussion will relate to s. 9, which is treated as analogous to s .121 and the other provisions conferring powers of alteration. on the other hand, as will be considered below, s.303 of the companies act 1985, which confers on the general meeting a power to remove a director by ordinary resolution, is quite different from the provisions concerning alteration, although some discussion of these provisions appears to have relied on an analogy with it. interpreting the statutory empowering provisions three interpretations of the statutory empowering provisions the statutory empowering provisions could, first, be interpreted as mandatory. on this basis they are designed to prescribe a certain appropriate degree of flexibility for the alteration of the terms of the memorandum or articles, preventing the shareholders from excluding change altogether, and at the same time preventing them 3. [1992] 1 w.l.r. 588, [1992] 3 all e.r. 161. the notes and articles on russell v. northern bank include riley [1993] n.i.l.q. 34. shapira (1993) 109 lqr 109, savirimuthu (1993) 14 co law 137, sealy [1992] c.l.j. 437, davenport [1993] l.q.r. 553, ferran [1994] c.l.j. 343. 4. in fact the relevant provision in northern ireland was art. 131 of the companies (northern ireland) order 1986, which corresponds exactly to s.121. 5. davenport, above note 3, at p.557, argues that strictly only the first issue was before the house, because on the second issue the parties were agreed on the law; cf ferran, above note 3, pp.348-350. 68 restraining the exercise of corporate statutory powers from providing for change to be too readily effected by contrary agreement in the memorandum and articles or by extrinsic agreement. on this interpretation, the terms of the articles or extrinsic agreements involving the shareholders or the company are invalid if they have the effect of excluding or in some way qualifying the arrangements for alteration set down in the statutory empowering provision. secondly, a statutory empowering provision might be understood as "enabling"6 in the sense that it is intended to give the company a power that, it is presumed7, the shareholders would not or might not otherwise have been able to create simply by agreement embodied in the memorandum or articles, but not to stipulate how the power should be controlled. if a statutory empowering provision is enabling in this sense, it does not frustrate its purpose to treat it entirely as a default provision, subject to contrary agreement between the shareholders, either in the memorandum or articles or in an extrinsic agreement. thirdly, a statutory empowering provision might be understood as principally enabling, but mandatory only to the limited extent that it is designed to prevent shareholders from making it any easier to exercise the powers, but without precluding arrangements designed to exclude the power or restrict its exercise or give particular shareholders a veto or greater influence to prevent its exercise. this article will be concerned only with restrictions on the exercise of statutory powers, and so for the most part it will not be necessary to distinguish between the second and third interpretations. which is the best interpretation? the mandatory interpretation is perhaps ostensibly the most apt. in a couple of early cases concerning provisions in the articles purporting directly to override the statutory power of alteration, the judges assumed without discussion that this interpretation was correct. in walker v. london tramways9 the articles contained a provision purporting to make a certain provision of the articles unalterable. in a judgement reported in five lines, jessel m.r. simply stated that' 'no company could contract itself out of [the statutory empowering provision] ". similarly, in ayre v. skelsey's adamant cement company 10 , kekwich j. held that a provision of the articles purporting to require a four-fifths majority for a resolution to alter the articles was ineffective in ousting the statutory provision, and the company could still alter 6. the expression is used in eisenberg (1989) 89 colum. l.r. 1461, but not in quite the same sense. 7. why this might be presumed will be considered in the next section below. 8. for example, by allowing for alteration by ordinary resolution rather than special resolution, or by giving control over the power to particular shareholders or even to the directors. "easier" is vague, but it is not necessary to pursue the issue here. 9. (1879) 12 ch. d. 705. ]0. (1905) 20 t.l.r. 587. 69 http://www.ingentaconnect.com/content/external-references?article=0010-1958(1989)89l.1461[aid=6655170] the denning law journal the articles in the normal way by a special resolution with a three-quarters majority i i. however in none of the cases was there any discussion ofthe purpose of the statutory provisions concerning alteration, or any recognition of the possibility that they might be enabling. to the modern eye, it appears that a statutory empowering provision that is purely enabling is superfluous. under the modern approach company law is regarded as a regime that merely recognises the company as a separate entity whose members may have limited liability, and creates the framework for a set of terms to be agreed between the shareholders, subject to certain overriding mandatory terms if necessary to protect particular interests of shareholders or othersl2• on this approach a statutory empowering provision seems to be unnecessary if it is not intended to be mandatory. but the nineteenth century context in which the provisions were originally enacted can possibly explain why the provisions may have been intended as enabling. before the introduction of registered companies, incorporation was achieved only through an act of parliament or by the exercise of the royal prerogative, and under the rather nebulous concession or privilege theory a body so incorporated appears to have been understood as a sort of quasi-governmental body or emanation of the state, whose constitution was a matter to be determined by parliament or the crown in the public interest rather than by the private agreement of the participants in the venture 13 , this was appropriate for bodies that exercised quasi-governmental 11. like jessel m.r. kekwich 1. regarded the special provision for alteration as a" [regulation] which attempted to evade the provisions of the statute", and the proposition that it was invalid was" so directly conformable to first principles that it really required no elucidation". he also relied in part on re peveril gold mines ltd ([ 1898] i ch. 122), but in this case the issue was not whether an article could be made una]terable, but whether the company could by a provision of the articles exclude the shareholder's right under the statute to apply for winding up. the court suggested that the statutory provision was mandatory because it was for the protection of shareholders and that a shareholder should be protected against' 'an attempt to remove a statutory safeguard of the inexperienced intending shareholder": [1898] 1 ch. 122 at 126, per byrne j, approved by the court of appeal. see also the more recent case of bushell v. faith, where russell l.j. said, obiter, in the court of appeal: "an article in terms providing that no alteration shall be made without the consent of "x" is contrary to [s.9] and ineffective ... " there is another line of cases (including russell v. northern bank) which are concerned with the effect of a statutory empowering provision on extrinsic contracts by the company purporting to exclude or restrict the exercise of the statutory power, where the same assumption seems to have been made. these will be considered below. 12. and with provision for default rules to apply in the absence of agreement. this approach may be referred to as the nexus of contacts approach, in contradistinction to the concession or privilege approach considered below. 13. for recent discussion of the nexus of contracts approach and the concession approach, see parkinson, corporate power and responsibility (clarendon, 1993) p.25; stokes, "company law and legal theory", in legal theory and the common law, ed. twining (1986); easterbrook & fischel, the structure of corporate law (harvard university press, ]991) pp.8-22. see also formoy, the historical foundations of modem company law (sweet & maxwell, 1923) p.57. and with particular reference to the issue discussed here, see riley, above note 3, at pa2. the distinction adopted in the text is that the nexus of contracts approach presupposes that the law is designed to promote or protect the private interests of the human participants in the company subject to specific rules to protect other interests, including in some respects the public interest, whereas the concession theory presupposes that the company is a public body in the administrative law sense and that company law is designed generally directly to promote the public interest. 70 restraining the exercise of corporate statutory powers functions like the regulation of trade or the administration of foreign territory. when incorporation began to become readily available to entirely private undertakings, it appears initially still to have been considered necessary that the state should examine and approve the purpose of the undertaking and the terms on which it was to be carried onl4• the statutory power to alter the aticles by special resolution appears to be derived from provisions in the same form in the deeds of settlement of unincorporated joint stock companies 15• in a deed of settlement, under the general law of contract, there was no restriction on the terms that could be agreed between the parties concerning alteration. the first companies act of 1844, which conferred legal personality on a deed of settlement company once its deed had been submitted to the registrar of joint stock companies, simply imposed a requirement of notification to the registrar of any alteration of the articlesl6. but the companies act 1856, which was "the first to introduce companies constituted in the modern manner by memorandum and articles of association" i?, included a provision in the modern form providing for alteration of the articles by special resolution 18. why should this act, which was designed to facilitate the formation and operation of the existing, and well-established, joint stock this distinction is sufficient for the argument in the text and appears to reflect the way in which the expression "nexus of contracts" is often used (although it may not do justice to the economic theory in the context of which the expression was devised, apparently by jensen & meckling 3 j. fin. econ. 305 (1976): see the articles cited in note i above.). on this view the nexus of contracts theory is not inconsistent with the presence of mandatory terms to protect the private interests of paticipants in the company, or the public interest, although the expression has been particularly popularised by proponents oflaw and economics who tend to be averse to mandatory terms, at least to protect the interests of participants: see bebchuk (1989) colum.l.rev. 1395 at 1408, and (1989) 102 harv.l.rev. 1820. 14. for example, formoy, above note 13, at p.57, says in connection with the letters patent act, which predated the registered companies legislation and was' 'intended to obviate the inconvenience and expense of applying to parliament for a private act . . ." by enabling an unincorporated company to sue and be sued in the company name, that "as all companies were compelled to apply to the crown for letters patent a responsibility was in some degree thrown upon the advisors of the crown, who, as the right of suing and being sued was taken to be a privilege, came to be considered as judging, in some degree, of the expediency of the undertaking". and formoy quotes bellenden ker in the report on the law of partnership, 1837, making the following suggestion: •• [t] the powers to be granted in all charters and leiters patent giving limited responsibility, &c., should be clearly defined and set forth so that the several powers to be granted and all conditions as to registry and transfer of shares might be at once referred to in the letters patent or charters. this measure would leave to the advisors of the crown merely the consideration of the expediency of granting the privilege sought without the inconvenience of considering in detail the effect of the different provision which parties had inserted in the drafts of their proposed charters; it would have the effect, also, of very materially abridging the length of the charters or letters patent. and, further, by the powers and provision being uniform, wherever it becomes necessary to submit them to judicial interpretation, the decisions of the court would apply to the whole class, and would have the effect of forming a uniform system of construction applicable to all similar instruments. " this view was presumably one of the reasons behind the model set of default articles. ker's argument for mandatory terms is echoed, in the language of contemporary law and economics, in gordon's "public good" hypothesis: (1989) 89 colum.l.rev. 1549 at 1567. 15. for a reference to such a provision, see baily v. british equitable assurance co [1904j i ch. 374 at 375, 384. 16. s.io companies act 1844. 17. formoy, above note 13, p.123 18. s.33 companies act 1856. 71 http://www.ingentaconnect.com/content/external-references?article=0010-1958(1989)89l.1549[aid=6961613] the denning law journal company by conferring limited liability as well as separate personality, introduce a provision apparently imposing a term on shareholders in respect of a matter on which they had previously been free to reach their own agreement? on the concession approach, the draftsman might have considered, even if the notion that the terms on which the enterprise was to be carried on were to be officially evaluated had become a fiction, that alteration of the terms of the memorandum and articles as originally registered (and in theory approved) required an enabling statutory power, and that a provision in the memorandum or aticles themselves providing for alteration would be ineffective 19 • if it were really appropriate to apply the concession theory, one would expect statutory provisions to be mandatory rather than default provisions, but one would not expect the shareholders to have a power of alteration to be exercised in their own interests. from the very start, however, the terms of the articles were a matter entirely for the shareholders to determine, and the philosophy expressed by lord watson in welton v. saffery appears to have taken hold: "the truth is, that all these20 are domestic matters, in which neither creditors nor the outside public have an interest, and with which, in my opinion, it is the policy of the legislature not to interfere. ' '21 in the light of this approach it is appropriate to interpret a statutory empowering provision, which affects only the interests of the shareholders, as enabling22• in the first full companies act of 1862, the position of the memorandum was very different from that of the articles. the provisions of the memorandum were incapable of being altered except in the respect that the share capital could be increased23• this may have been because, under the influence of the concession theory, it was considered that at least the characterising features of a registered company should not be open to alteration once they had been formally approved in the registration procedure24, or because it was considered necessary in order to protect specific interests of 19. if it was intended to have any mandatory effect, it seems most likely, in the light of the approach to the memorandum, which was made largely immutable, that it was intended to prevent excessively relaxed rather than excessively restrictive provisions for alteration i.e. the third interpretation mentioned above. if, in the absence of a statutory provision, there would be no power of alteration at all, it is a reasonable interpretation that a statutory provision for alteration by special resolution should be understood as a provision enabling the company to alter its articles either by special resolution or by any agreed procedure that is no less restrictive. 20. lord watson was referring to the distribution of surplus assets on a winding up. 21. [1897] a.c. 299 at 309. 22. another possibility is that the statutory power to alter the articles was considered necessary, even though enabling, to qualify the other provisions of the statute that required a statement of the provisions of the articles without referring to any possibility that such provisions could be open to change. and gower, principles of modem company law (5th ed., 1992) (referred to below as "gower") at p.534, suggests that a power in the articles might have been regarded as ineffective, and a statutory provision necessary (as an enabling provision), on the ground that the relationship with a shareholder based on an issue of shares rather than original subscription might have been held to be governed not by the statutory contract but only by the separate terms of issue, and therefore not subject to alteration in accordance with a power in the articles. nowadays a contract of issue of shares would be taken necessarily to incorporate the aticles; a contract failing to do so would not constitute the contractor a shareholder. 23. joint stock companies act 1862, s.12. 24. gower, p.14. 72 restraining the exercise of corporate statutory powers shareholders or creditors25• in either case, because of the original presumption against alteration, it is very easy to interpret statutory empowering provisions subsequently introduced, and the original provision for the increase of share capital in its context, as enabling provisions that were not designed to preclude contrary agreement, or at least contrary agreement to have a stricter rule for alteration. there is no reason why the introduction of a power of alteration previously withheld from shareholders should necessarily be understood to deny them the freedom to impose restrictions on its exercise if they so wish26. weighted voting rights if a provision were intended to be purely enabling, one would expect it simply to confer the power on the company and leave it for the memorandum or articles to specify the conditions and procedure for its exercise. in fact the provisions generally require a special resolution of the general meeting. this may indicate a mandatory rationale or it may simply indicate that in pursuing an enabling rationale the draftsman overlooked the possibility that shareholders might wish to provide for a different arrangement for the exercise of the power, and simply assumed that shareholders would not in practice have any reason to depart from this standard form of the provision. on the other hand if a provision is to be mandatory, one would expect it to be exhaustive, in the sense that it specifies completely the conditions for exercise of the power. in fact, in an important respect the provisions are apparently not exhaustive, since they do not expressly provide for the allocation of votes on the exercise of the power, and this leaves open the possibility of weighted voting rights that give particular 25. in ashbury railway carriage and iron company v. riche (1875) l.r. 7 h.l. 653, where the house of lords established the ultra vires doctrine, the house was influenced by the fact that the objects clause was incapable of being altered. although the house said that the immutability of the clause and the ultra vires doctrine were designed to protect the interests of existing shareholders and creditors of the company (per lord cairns l.c., at p.667, per lord hatherley at p.684, 687) in fact the speeches were more strongly influenced by the idea, attributable to the concession theory, that because the company owed its existence to the statute its inherent powers were necessarily limited to those expressly granted (per lord cairns l.c. at p.670, per lord chelmsford at p.678, per lord hatherley at p.686). blackburn j., in a lower court in ashbury (law rep. 9 ex. 263, considered in the house of lords at (1875) l.r. 7 h.l. 653 at 677, 685), took the view that the objects clause did not limit the inherent full capacity of the company. his view appeared to be that the registered company was to be understood as a partnership or unincorporated joint stock company (having full contractual capacity) on which had been grafted a separate personality and limited liability, a view in keeping with the nexus of contracts rather than the concession approach. blackburn j.'s view has eventually prevailed, following the latest reforms: see companies act 1985 s.35. with the rejection of the doctrinal impediment to alteration, and the recognition that the availability of a power of alteration will not prejudice shareholders and creditors, almost all the provisions of the memorandum are now capable of being altered, although, as a "relic of the time when ... [memoranda] were generally unalterable" (gower, p.532) s.2(7) still provides that the memorandum may not be altered except as provided in the act. 26. 5s.121 and 135 are expressed to apply only "if ... authorised by [the company's] articles". thus the issue is whether a provision in the articles that purports to exclude the power or make it subject to additional restrictions is effective and whether the alteration of this provision can itself be precluded or made subject to restrictions, notwithstanding s.9. 73 the denning law journal shareholders extra influence on the decision to exercise the power. one might argue that a certain allocation of voting rights should be taken as implicit in the statutory provisions: for example one vote per share, or votes in accordance with nominal share value. but the use of weighted voting rights is one of the means open to company draftsman to adjust the rights of participants in the company, and in the absence of express provision it is difficult to say that there is a standard allocation of voting rights that the statutory empowering provision my be taken to have implicitly prescribed27• this issue arose in bushell v. faith28, which concerned the statutory power to remove a director, now contained in s. 30329 • the statutory provision empowered the general meeting to remove a director by ordinary resolution "notwithstanding anything in [the company's] articles or in any agreement between [the company and the director] ". the defendant had sought to secure his position as director, despite s.303, through a weighted voting provision that gave him three votes per share instead of one on a resolution to remove him under s.303. the issue was whether the weighted voting provision was effective on a resolution under s.303. the house of lords held that the provision was effective, but the decision was bitterly criticised in some quarters30• unlike the provisions for alteration of the memorandum and articles the statutory provision in s.303 is evidently mandatory; it is expressed to override contrary agreement in a service contract and in the articles31, and it was clearly intended to abolish secure lifetime directorships. but s.303 is flawed (given its apparent objective) in not providing for voting rights on the exercise of the power. in the absence of express provision concerning voting rights the house of lords considered itself bound to apply the usual rule that voting rights may be prescribed by the articles. this makes the statutory power merely a formal mechanism for removal, control over which may be manipulated by the articles. a provision for a mandatory power of removal should stipulate who is to control the power, and so should include provision for voting rights32• the comparison with 27. one might argue that as a matter of fairness there should be one vote per share, or that the number of votes per share should be proportional to the nominal value of the share. but, in theory at least, a prospective shareholder will value a share in the light of its voting and substantive rights, and so no injustice is done by an uneven allocation of voting rights. there is an argument of economic efficiency in favour of the number of votes being proportional to the financial interest conferred by the shares (reflected in the proposed fifth ec directive on company law (o.j. c240 9.9.83 p.2) which provides by article 33 that voting rights shall normally be proportional to subscribed capital). on an issue for decision by shareholders the decision is most likely to promote the objective of maximising the company's profits overall if the influence of shareholders is proportional to their respective financial interests: see easterbrook and fischel, above note 13, p.73. 28. [1969] i all e.r. 1002. 29. the provision was actually in s.l84 companies act 1948, but will be referred to as s.303. 30. see schmitthoff [1970] j.b.l. 1. 31. it was not introduced as an enabling provision in the sense discussed above, because it was clearly possible, and no doubt generally the case, for the articles to provide for removal of a director, as is recognised in s.303(5). 32. bushell v. faith appears to have involved a quasi-partnership company, where it is now accepted under the s.459 jurisdiction that a shareholder has a "legitimate expectation" to remain as a director: see below, text following note 99. 74 restraining the exercise of corporate statutory powers s.303 and bushel v. faith does not, however, cast much light on the interpretation of the statutory provisions concerning alteration. the case demonstrates that a mandatory provision ought to include provision for voting rights, but at the same time provides an example of a statutory provision clearly intended as mandatory but perversely drafted without such provision. class rights it is clear that the statutory powers of alteration are subject to contrary provision where the articles provide for class rights. under the present law, s.125 of the companies act 198533 provides expressly that provisions of the memorandum or articles that confer class rights on a shareholder or class of shareholders may not be altered except in accordance with the statutory procedure, which is, generally speaking, the passing of a class resolution by a three-quarters majority (or in the case of a class of one person, the consent of that person). it appears to be a controversial matter whether, before s)25 (or its statutory predecessors) was enacted, the statutory power of alteration of the articles was subject to the limitation that it could not be exercised so as to remove class rights that is, whether or not the statutory empowering provision was mandatory in this respect. gower's understanding of the position is consistent with the view that the statutory provision for alteration is subject to contrary provision. he says that class rights were previously immutable except in accordance with a provision in the articles for their alteration, and that the effect of s.125 was principally to create a power of alteration where the articles contained no such express provision34• however it was apparently a commonly held view that, before the introduction of s.125, class rights could be altered in the normal way by the exercise of the statutory power by the shareholders as a whole35• the view is difficult to accept, because the very existence of classes of shareholders that is, shareholders with common interests in the company that differ from those of other shareholders 33. 5.9 is expressed to be .. [s]ubject to provisions of this act". 34. gower, p.535. furthermore the provision for alteration in s.125 is expressly (subject to exceptions) a default rather than a mandatory provision, since by s.125(4) and (5), it expressly recognises the effectiveness of provisions in the articles that impose different requirements for alteration than the requirement of a class resolution passed by a three-quarters majority. 35. ibid. the view is adopted in farrar's company law (3rd ed .• butterworths) p.230 (cited below as "farrar"). 75 the denning law journal seems to be incompatible with class rights being subject to alteration by the whole body of shareholders36 37. . adopting the view attributed above to gower, the recognition of class rights and the limitation they impose on the exercise of the statutory power of alteration, even before any such limitation was expressed in the statutory provision itself, is inconsistent· with the interpretation of the statutory empowering provision as fully mandatory. furthermore, one might argue that the recognition of class rights and the concomitant restriction on the statutory power should be taken to support a more general principle that the statutory power is always subject to contrary provision, and that class rights simply provide a case where the principle is applicable because of the readiness with which it may be inferred from the presence of class rights in the articles that the statutory power is not to be capable of being exercised in the normal way3839. one may conclude that it is far from clear that the statutory empowering provisions 36. in cumbrian newspapers v. cumberland and westmoreland herald ([ 1987] 1. ch. i), scott j. took the view that before s. 125 was introduced, class rights could be altered by the exercise of the statutory power by the shareholders as a whole in the normal way, except where there was a provision for alteration, where the provision had to be followed. but, with respect, his arguments are unconvincing. first, scott j. said that the view that class rights were immutable except in accordance with a provision for alteration in the articles was rejected in andrews v. gas meter ([ 1897] i ch.361). but this case is usually taken to stand for the proposition that where the share capital clause of the memorandum makes no explicit reference to more than one class of shares if it is not to be inferred that the clause precludes the creation of another class, so that a new class can be created if authorised by the articles. the case can be taken to hold that a class right of shareholders against the creation of a new class of shares will not be implied in the memorandum or articles, which says nothing about how such a right might be altered if it existed: cf cases like white v. bristol aeroplane ([ 1953] ch.65), which hold, in effect, that no class right will be implied against the issue of bonus shares, or to pre-emption rights, so as to preserve the present proportion of votes of a class of shareholders. secondly, scott j. relied on the assumption that the statutory power of alteration is mandatory, and so could not be limited except by statutory provision. this was taken to be the case without discussion, and is difficult to reconcile with the judge's conclusion that the statutory empowering provision had always been subject to contrary provision in the case where there was an express alteration clause, although not to contrary provision clearly implicit in the presence of class rights in the articles: see at [1987] i ch.1 at 21, and gower, note 21 on page 535. 37. in allenv. gold reefs [1900-3] all e.r. rep. 746, the court of appeal accepted that the statutory power of alteration could be displaced by a "special bargain" with a particular shareholder: see per linley m.r. at p. 748, per romer l.j. at p. 754. it is not entirely clear whether the judges had in mind an extrinsic special bargain incorporated in the articles. in either case, the effect would be to preclude the exercise of the statutory power of alteration. 38. on the other hand one might infer that the general principle is that no restriction on the exercise of a statutory power can be effective except to protect a class right. the effect would be that restrictions on alteration could exist only in the form of a veto exercised collectively by shareholders with the same interests, and that a shareholder could never protect himself from the collective decision of shareholders having the same interests as him. this might be defended as the best way to preserve flexibility in alteration whilst at the same time allowing for essential protection. this cannot be inferred, however, from the statutory empowering provision itself. s.17 of the companies act 1985 provides for the entrenchment in the memorandum of a provision whether or not it creates a class right. 39. the difficulty, where shareholders have divergent interests, is to determine to what extent it was intended that the interests should be subject to protection as class rights, as opposed to being subject to alteration by special resolution of all the shareholders. 76 restraining the exercise of corporate statutory powers are mandatory, or that they are frustrated by provisions in the memorandum or articles that restrict their exercise. although there are certainly examples of cases where the judges have assumed that they are mandatory, a consideration of class rights and weighted voting rights and of the context in which the provisions were introduced provides support for construing them as enabling and subject to contrary provision. certainly it may be argued in the light of the modern conception of company law as a framework for private arrangement subject to mandatory rules only where necessary to protect specific interests, either of outsiders or shareholders, that the statutory empowering provision should not be construed as mandatory in the absence of any good reason to suppose that, either originally or in a more recent enactment, they were based on a deliberate judgement that unfairness or inefficiency would result from leaving the matter for agreement between the shareholders. although shareholders are likely to want to have a provision for alteration that does not rely on the consent of every shareholder, they may reasonably want a particularly restrictive procedure for. alteration, at least in relation to certain provisions40, and there seems no good reason to deny them the freedom to agree on such restrictions (even if it is necessary , in their own interests, to deny them the freedom to agree on arrangements for alteration that are more flexible than might be considered prudent). shareholders' agreement restricting the exercise of a statutory power the question whether the statutory empowering provision in s .121 is mandatory was in issue in russell v. northern bank. lord jauncey held that an extrinsic shareholders' agreement binding the shareholders not to vote to exercise the power was not inconsistent with the statutory empowering provision. some commentators have asserted trenchantly that the statutory empowering provisions are mandatory, and therefore that the decision in russell "[ prevents] the application of mandatory provisions of the companies acts"41. but lord jauncey's decision, although not 40. bebchuk (1989) 89 colum.l.rev. 1395 at 1401. denying that a mandatory provision should apply to govern a particular issue does not amount to saying that it should not be possible for the courts to intervene to override the terms of the articles, particularly if circumstances have changed. see riley, above note i, p.47. 41. shapiro, above note 3, at p.213. savirimuthu, above note 3, at p.139 goes so far as to say that the house of lords "expressly overrode statute" and thereby "usurped the function of the legislature" . 77 the denning law journal made with any explicit discussion of whether the statutory empowering provision was enabling or mandatory, 42 is at least consistent with the conclusion above43• unfair prejudice there is a more plausible argument against the enforceability of shareholders' agreements that restrict voting freedom based not on a supposed inconsistency with a statutory empowering provision, but on the notion of unfair prejudice or minority oppression. for example, it has been suggested44 that each shareholder should be "entitled to assume that all other members will exercise an independent judgement upon those issues on which their votes are cast", and that a shareholder may have a remedy for unfair prejudice under s.459 of the companies act 1985 if another shareholder's vote is instead governed by a contractual restriction on voting 45, the orthodox view is that shareholders are not fiduciaries for the company or each other, and are not obliged to vote in such a way as to promote the company's business or the interests of the generality of shareholders, but are free to exercise their votes in their own interests, and to bind themselves by contract as to the exercise oftheir 42. the effect of the statutory empowering provision on an agreement by the company itself will be considered separately be]ow. the decision in russell with regard to the shareholders' agreement appears to have been based mainly on the principle that, as a general rule, a share is the shareholder's property for him to dispose of as he wishes, citing welton v. saffery [1897] a.c. 299at331. (see also pender v. lushington (1877) 6 ch. d. 70 and nonh-west transponation co v. beatty (1877) 12 app.cas.589.) it is no doubt appropriate for certain purposes to regard a share as an item of property, in the same way that a right under a contract can sometimes be regarded as an item of property. however property rights can be subject to inherent limitations, and although the conclusion that a share is the shareholder's property can be understood to exclude the possibility that the shareholder is a fiduciary for the company or other shareholders, it does not indicate what rights are actually attached to a share, or what specific restrictions may exist on the exercise of rights prima facie conferred by ownership of it. 43. another argument against allowing extrinsic shareholders agreements, and against agreements by the company that restrict the exercise of powers in the general meeting, is that potential shareholders and other interested parties have no way of knowing whether such agreements exist or what their terms are, whereas they have access to the terms of the memorandum and articles through the register. however this difficulty can be dealt with sufficiently by a requirement of registration of such agreement or notice to interested parties, if it is not sufficientto leave the matter to negotiation. see riley, above note 3, p.48. 44. riley, above note 3, p.46. 45. the suggested stipulation that shareholders must exercise an independent judgement is reminiscent of the law concerning public powers. (i do not mean to attribute this interpretation to riley.) where a person or a body of people have vested in them by statute a public power that is, a power to be exercised in the public interest it is a long established principle of administrative law that a contract by which the person or a member of the body purports to bind himself as to how the power is to be exercised is unenforceable: see for example ayr harbour trustees v. oswald (1883) 8 app.cas. 323. the statute requires the discretion to be exercised by the person or body in whom it has been vested in the light of prevailing circumstances, and a prior fettering by contract of that person's discretion, or the discretion of members of the body, or a surrendering of the discretion, is incompatible with the empowering statute. the reference in russell to the "fettering" of "statutory powers" ([ ]992] 3 all e.r. ]61 at 168 per lord jauncey) adopts the language of administrative law. the same principles apply to fiduciaries (including company directors) taking decisions in the interests of other people. but, unless the concession theory of incorporation is adopted, it is not the rationale of company law to confer powers on the general meeting to be exercised in the public interest, or the interests of other parties than the shareholders themselves; it is to establish a framework for the pursuit of the interests of the shareholders, subject where appropriate to mandatory restrictions to protect shareholders or outsiders. see note 42 above. 78 restraining the exercise of corporate statutory powers votes, subject only to rather ill-defined rules to protect against minority exploitation46• it is a controversial and confused question what general principle of unfair prejudice or minority oppression (if any) determines when an exercise of a statutory power in the general meeting, or any other power of the general meeting, is ineffective47• there is a line of cases concerned with limits on the freedom of shareholders to pass a resolution altering the memorandum or articles where the alteration would be unfair to a minority shareholder. the rule is stated to be that an alteration is ineffective if it is not "bonafide for the benefit of the company as a whole", although exactly how this phrase is to be understood is a matter of controversy48. nowadays the issue is likely to be dealt with under the rubric of unfair prejudice under s.459. the issue raised here is whether it can be a form of minority oppression or unfair prejudice to one shareholder for another shareholder to be subject to a contractual restriction on his voting on the exercise of the power. it is difficult to see why, as a general rule, a shareholder who was actually party to a shareholders' agreement that imposed voting restrictions should be able to complain that it is unfair prejudice for other shareholders to vote in accordance with the agreement or to insist on its observance. as in russell, protection of a minority shareholder will, to the contrary, generally require enforcement of the agreement49• however the position may be different in the case where a shareholder complains of unfair prejudice arising from voting restrictions in a shareholders' agreement to which he is not party because he is a new shareholder, for example, or because the shareholders' agreement was not entered into by all the shareholders. in such a case a shareholder who voted in accordance with the agreement would not be able to claim that the complainant had (presumptively in his own interest) agreed to the restrictions. is it then unfair to the complainant for the voting of other shareholders to be dictated by a contract? one approach to the question might run as follows. arrangements in the memorandum or articles, or in the statute, for certain issues to be settled by vote are necessitated by the impossibility of foreseeing all the contingencies that may arise in the life of the company, and making provision for them in the initial terms of the 46. see note 42 above. however because the relationship enshrined in a company is likely to be long term, there are strong arguments for the court to have a jurisdiction to override arrangements in cases where there has been a change of circumstances over a long period: see riley, above note 3 at p.47. such an argument might be addressed under s.459. in some jurisdictions in the u.s., shareholders' agreements are limited to a specified tenn: see easterbrook & fischel, above note 13, p.131, and eisenberg, above note i, at p.1466. see also riley, above note i, at p.786. 47. the approach below makes no distinction between voting under a statutory power and voting to exercise powers that may be conferred on the general meeting by the articles directly, like the power to issue shares, as in clemens v. clemens ([1976] 2 ai e.r. 268). this seems quite appropriate, since there seems to be no reason to distinguish between the two. in both cases, there is a power capable of being exercised by a majority and capable of operating unfairly at the expense of a minority: see per lindley 1.1., in allen v. gold reefs of west africa []9oo] i ch.656 at 659. 48. allen v. gold reefs of west africa [1900] i ch.656; greenhalgh v. ardeme cinemas [1951] ch. 286. 49. in russell, the plaintiff had entered into an agreement precluding further share issues to protect his minority interest in the company. 79 the denning law journal company's memorandum and articles50. if, on joining the company, shareholders may be taken to have agreed, for this reason, to postpone decision on certain matters and provide for them to be settled by vote when they arise, it would be reasonable to impose such restrictions on the voting as it would be reasonable for each shareholder to insist on at the time of joining, to protect himself against a resolution that might operate unfairly against him51• it would be reasonable to suppose that a shareholder in that position would be prepared to accept that on a matter that might affect him adversely a decision should be made by vote amongst only those shareholders who will be affected by the vote in the same way. the shareholder then risks only being outvoted on matters in which his judgement differs from other shareholders, and not on matters where other shareholders have different interests and incentives at stake. this is the basis for class rights, where shareholders with common interests have the right as a class to determine whether their rights should be altered52• it also supports the rule that on a resolution on a class vote a shareholder may not vote if he has an interest in the outcome other than as a member of the class53• one might argue that a shareholder who is not himself party to a voting agreement could complain that such an agreement gives a shareholder who is party to it an interest in the vote otherwise than as a shareholder, for the purpose of the principle above. but whether this is the case would depend on the nature of the agreement. arguably it would not offend against the principle if all the parties to the agreement were shareholders and the only benefit from the agreement for each party was the effect of the agreement on the shareholder's interest in the company. here each shareholder would simply have sacrificed his freedom to judge how to promote his interest as a shareholder in the short term, for the sake of promoting that interest in the long term, and not for the pursuit of an extraneous interest. on the other hand it might offend against the principle if a shareholder were restricted by an agreement by which he had sacrificed his interest as a shareholder to some extent in return for an extraneous benefit, for example under a commercial agreement with an outsider, or under an agreement with other shareholders to secure a directorship. in such a case a shareholder not party to the agreement might be able to claim that it is unfair prejudice under s.459 for another shareholder's voting decision to be governed by the agreement, and consequently that the agreement should not be enforceable by injunction. 50. see easterbrook & fischel, above note 13, at p.67. 51. this is an exercise in generating default rules by "hypothetical contracting": see for example riley, note i above, at p.788. 52. see the discussion above under the heading "class rights". 53. british america nickel corpn ltd v. o'brien [1927] a.c. 369. however it has not generally been accepted that the presence of an extraneous interest disables a shareholder from voting, for example where he has a personal interest as an outsider dealing with the company. furthermore, it is not easy to say what factors should be taken into account in determining whether shareholders are in a different position or have different interests. 80 restraining the exercise of corporate statutory powers agreement by the company itself not to exercise a statutory power this section deals with the case of an agreement by the company itself that purports to restrict the exercise of a statutory power. in russell, the company itself was party to the shareholders' agreement, and it was held, relying on a line of cases considered below, that the company's undertaking was unlawful, on the ground that the company could not deprive itself of a statutory power54• thus, in this context, the statutory empowering provision was treated as mandatory in the sense described above. davenport has pointed out that this can create practical problems for companies, since restrictions on the exercise of a statutory power by agreement with third parties are an important means of providing security to outsiders contracting with a company in certain types of contract, in particular loan contracts55• the finding that the statutory empowering provision was mandatory in this respect does not sit easily with the other aspect of the decision in russell, that the statutory empowering provision did not prohibit voting restrictions in shareholder agreements. it is not clear why the statute should be understood as mandatory for one purpose but not the other56• if the statute does not stop shareholders from imposing restrictions on the exercise of power, why should it stop the company from accepting such a restriction if it is accepted in accordance with the company's constitution57? 54. as mentioned above, note 5, davenport has argued that this part of the decision in russell is not part of the ratio of the case. 55. davenport [1993] l.q.r. 553. davenport says (at p.553) that such provisions "are regarded as essential protection for those providing the finance". see also ferran, above note 3, at p.351; and romano, ed, foundations of corporate law aup, 1993), part iv . lord jauncey took the view that such a restriction will be void, and that unless the offending provision is severable the whole contract will fail, so that in the case of a loan contract, the lender will be reduced to a restitutionary remedy to recover the loan. lord jauncey' s approach to severability was, however, so flexible that it is difficult to see when a restriction will not be severable. in fact the cases considered by lord jauncey suggest not that the restriction is void but that it is valid but unenforceable by injunction. the lender will then be able to provide for early repayment or other secondary obligations arising on default. however there will presumably be occasions, for example where there is a threat of insolvency, where the lender needs an injunction to enforce the restriction in order to protect his interest under the contract. 56. see ferran, above note 3, p.344. 57. the question of conformity with the company's constitution is considered below in connection with the issue of contractual authority. the formal difference between the two cases is that, where a company contract is concerned, the company itself is bound, rather than merely the shareholders individually. where the company is bound, future shareholders are effectively subject to the restriction, whereas an agreement between particular shareholders outside the articles does not affect future shareholders. also an injunction can be obtained against the company directly, rather than against the shareholders separately. and in the case of a restriction in a shareholders' agreement (or a restriction in the articles, although this binds the company), the shareholders as a whole will have it in their power to remove the restriction. but in practice a shareholders agreement is likely almost as effectively to obstruct change, at least in companies with a reasonably small and stable body of shareholders (which is the type of company where such an agreement is feasible). if the rationale for the statutory empowering provision is to ensure a degree of flexibility by banning restrictions on shareholders' freedom to make alterations from time to time, the provision should apply equally to shareholders' agreements. if, on the other hand, the statutory provision is correctly understood as enabling, there is no inconsistency with the statute whether the restriction binds the company or the shareholders personally. 81 the denning law journal if a company is disabled from accepting a restriction in a contract with an outsider, its contractual capacity is limited. it is clear that there are circumstances where it is advantageous in its dealings with outsiders for a company to be able to accept a restriction on a statutory power, and it is surely better that the company should have the capacity to bind itself, so that, as with other contracts that the shareholders may wish to put beyond the power of directors, the question whether a restriction is binding is dealt with as a question of authority (including the statutory rules adapting this concept to the company)58. it is difficult to see why the law should entirely deny a company the facility to enter into such a contract if it is entered into with due authority 59. the authorities the proposition endorsed by lord jauncey, that a company may not deprive itself of a statutory power by contract with an outsider, is taken to be supported by a line of cases dating from the last century, including punt v. symons & co ljdfij, southern foundries v. shirlaw6l, and the more recent case of cumbrian newspapers v. cumberland herald62, although, as has recently been pointed out63, it appears to be inconsistent with a couple of other cases, british murac syndicate ltd v. alperton rubber co lttj64and baily v. british equitable assurance co. 65.in punt v. symons, the company had entered into a contract with s, the managing director of the company, who was also a shareholder, and his executors after his death, by which the company undertook not to alter certain provisions of the articles that gave s or his executors the exclusive right to appoint the directors of the company. after the death of s, however, the directors convened a general meeting at which the shareholders voted 58. the issue of contractual authority is considered below. 59. furthermore, even if the statutory empowering provisions are understood to be mandatory so far as shareholders are concerned, it is strongly arguable that, as in the case of contracts outside the objects, an outsider deal ing with the company should be entitled to the protection for his contract that he receives under the rules governing authority, and that he should not be disabled from enforcing his contract by a rule limiting the capacity of the company. the statutory provision that abrogated the ultra vires doctrine (companies act 1985 s.35) provides that the capacity of the company is not limited by anything in the company's memorandum; it is not expressed to cover limitations on capacity arising ftom the statute. this is clearly appropriate where the statute vitiates a contract because it is or may be unfair as between the company and the outsider, as in the case of provisions that impose fiduciary disabilities on directors, e.g. s.322a companies act 1985. in the case of a statutory empowering provision, however, even if the provision is understood as mandatory so far as shareholders are concerned, it is not designed to deal with any supposed unfairness as between an outsider and the company, and it is arguably within the rationale of s. 35 (if not its expressed scope) that such a provision should not affect the company's capacity with respect to an outsider. 60. [1903] 2 ch.506. there are other cases in which the provision fettering the statutory power is in the articles: allen v. gold reefs of west africa ([ 1900] i ch.656), walker v. london tramways (12 ch.d 705), bushell v. faith, see above, note 00. 61. [1940] 2 all e.r. 445 62. [1986] 2 all e.r. 816 63. davenport, above note 3, at p.570. 64. [1915] 2 ch.186. 65. [1904] i ch.374. see davenport, above note 3, at pp.560-3. 82 restraining the exercise of corporate statutory powers to alter these provisions of the articles, and the executors sought an injunction to prevent the company from doing so on the ground that it would be a breach of contract66• byrne j. said67 ". • • i am prepared to hold that in the circumstances of the present case the contract could not operate to prevent the article being altered under the provisions of s.50 of the companies act 186268.•.• "69. in southern foundries v. shirlaw the plaintiff had entered into a service contract with the defendant company to act as its managing director. the articles of the defendant were altered after the company was taken over by another company, federated, to confer on federated the power to remove a director of the defendant. federated exercised this power to remove the plaintiff from his directorship, thereby bringing the service contract to an end. for present purposes, the relevant issue was whether the defendant company could alter its articles to confer the power of removal on federated. there was some doubt whether the service contract actually included an implied term prohibiting the defendant from altering its articles in such a way, but the house of lords was clear that, if there was such a term, it would not be invalid, and a breach could give rise to damages, but it could not be enforced by injunction against the company70. more recently, in cumbrian newspapers v. cumberland herald, scott j . also expressed the view that a contract prohibiting the company from altering its articles was enforceable in damages but not by injunction 71. these cases appear to give some support to the view that a statutory empowering provision is mandatory, inasmuch as they deny an outside contractor an injunction to enforce a contractual restriction on the exercise of a statutory power (although not to the extent of making the contract void or unlawful or denying a remedy in 66. the executors also argued that the alteration of the articles was contrary to their rights as shareholders, rather than contractors, because the directors had acted for an improper pui]lose in issuing additional shares for the purpose of procuring the resolution to alter the articles. 67. [1903] 2 ch.506 at 514. 68. equivalent to s.9 companies act 1985. 69. however, although the judgement is not entirely clear on this point, it appears that the judge did not consider the contract to be unlawful or void, but merely not enforceable by injunction. after the first passage quoted above, byrne j. went on to say, at p.514: " ... it may be that the remedy is in damages only." see also note 80 below. 70. see [1940] a.c. 701, per viscount maugham at p.713, lord wright at p.726, lord porter at p.740-1. the other issues decided were that the power under the company's constitution to remove the plaintiff as a director (whether resulting from altered articles or not) did not affect the contractual right of the plaintiff under his fixed term contract, and that the exercise of the power by federated was attributable to the defendant. . 71. [1986] 2 all e.r. 816 at p.830-1. here the defendant had contracted to give the plaintiff shareholder a right of pre-emption over new share issues and a power to appoint a director, both of which were also incoi]lorated as additional provisions in the articles. by contrast with the approach in punt v. symons, scott j. decided the case by reference to the plaintiff's rights as a shareholder: that is, on the issue whether the additional article conferred class rights or could be altered under s.9. however he then said, obiter, that if the contract purported to prohibit the company from altering its articles so as to cancel these rights, it would not be unlawful or invalid, but it would not be enforceable by injunction against the general meeting preventing it from exercising the power. 83 the denning law journal damages for breach of contract)72. on the other hand, there are two other cases that have been cited in support of the view that a contract by a company purporting to restrict its exercise of a statutory power is not only valid but also actually enforceable by injunction against the company: british murac syndicate ltd v. alperton rubber co l((1'3 and baily v. british equitable assurance co. 74. in british murac, the defendant company had agreed by contract with the plaintiff, a shareholder, that the plaintiff should be entitled to appoint two directors to the defendant's board. a provision to the same effect was inserted in the company's articles as article 88. the directors of the defendant company then refused to accept the plaintiff s nominations and called a meeting of the shareholders to alter the articles by the deletion of article 88. sargant j. awarded a declaration that the plaintiff's nominees were properly appointed directors of the company and an injunction prohibiting the company from calling a general meeting to alter its articles by the deletion of article 88. this appears to be a clear authority that a contract by the company not to exercise a statutory power in general meeting may be enforced by injunction75. in british murac sargant j. relied on the judgements of the court of appeal in baily as authority for his decision 76.in baily, the plaintiff had entered into a contract for life insurance with the defendant company. on the view of the facts reached by the court of appeal, the contract incorporated by-law 4 of the articles of the company 77,which provided that the whole profits of the company should be divided between the policy-holders, without deduction (save for expenses). the company then sought to alter the articles to provide, by article 103, that a proportion of the profits should be retained and credited to a reserve fund before division of the remainder amongst policy-holders. sargant j. in british murac understood the case to have held that the company could be enjoined from exercising its statutory power to alter its articles by deleting by-law 4 and introducing article 103, on the ground that this would be a breach of the contract of life insurance78. it is difficult to arrive at any conclusion consistent with all the cases, certainly if it is necessary to follow the reasoning in the judgements. but it is certainly plausible to interpret the cases as being consistent with the view that a statutory empowering 72. thus the cases appear to give no support to lord jauncey's view in russell that the restriction is "unlawful" in the sense that its presence can taint the whole contract with illegality and so make it wholly void unless the offending restriction can be severed. 73. [1915] 2 ch.186. 74. [1904] i ch.374. 75. instead of enforcing an extrinsic contract, the court could have reached this decision by the route later followed by scott j. in cumbria newspapers, of recognising a class right of the plaintiff under the articles. 76. the court of appeal decision was overruled in the house of lords ([ 1906] a.c. 35), which adopted a different view of the facts. 77. originally the company was a deed of settlement company with (as a matter of terminology) by-laws rather than articles. the changes to the by-laws were proposed when it converted to a registered company with articles. 78. the house of lords took a different view of the facts. it held that by-law 4 had never been a term of the plaintiff's policy. the plaintiff was entitled only to the share of the profits determined by the company's practice for the time being: [1906] a.c. 35 at 41-2, per lord lindley. 84 restraining the exercise of corporate statutory powers provision does not prevent a contractual restriction on the exercise of a statutory power from being enforced by injunction, if other factors are taken into account that were not referred to in the cases. first, as mentioned above, if a statutory empowering provision does not preclude the company from accepting a restriction on the exercise of the power, the question arises who has authority, and in what circumstances, to accept such a restriction on behalf of the company; and a restriction might be unenforceable for lack of authority rather than inconsistency with the statute79. secondly (although this may be regarded as an aspect of the issue of authority) it is questionable whether a shareholder should be able to enforce a contract that bears on his position as a shareholder rather than an interest as an outsider, since this would be at odds with the statutory contract to which he is a party. thirdly, in both punt and southern foundries, the cases that appear to deny the enforceability by injunction of a contractual restriction on alteration, the alteration of the articles that was sought to be enjoined was for this purpose of removing a director, and one can argue that the cases should be distinguished as concerned with this limited issue, rather than the more general issue of conflict with a statutory provision80. the issue of contractual authority if a contract by the company accepting a restriction on the exercise of a statutory power is not inconsistent with the statutory empowering provision, the contract may still be ineffective if made without proper authority. generally a contract will be made by the directors, or by their authority. the articles of the company will normally delegate to the directors "all the powers of the company"81. this is usually taken, as a matter of construction, to cover only powers concerned with management of the business, and not powers concerned with relations between shareholders or control 79. on this view the undertaking would be void for all purposes rather than merely unenforceable by injunction. 80. a fourth point might be added. sometimes where a contract prohibits the alteration of the memorandum or articles the contract can in substance be observed without actually preventing the alteration, but merely treating the company, so far as the outsider is concerned, as if the unaltered provisions still applied. the court might then argue that an injunction to prevent the alteration itself will not be granted because it is not strictly necessary. in punt v. symons, having declined to enforce the contract by injunction, the judge suggested (at p.5l4) that the court might order specific performance of the contract by requiring the company to accept the executors' appointments of directors, without actually concerning itself as to the provision concerning appointments in the articles: " ... it may be that the stipulation of the contract can be enforced notwithstanding the alteration in the articles." in baily (where an injunction was in fact granted), it appears that the order made at first instance and affirmed by the court of appeal was a declaration "that the company ought to continue to distribute the entire profits ... " without deduction. although it was accepted by the parties and the court on appeal that the question was whether "the company is at liberty to alter the provisions of by-law 4 ... in such a manner as to alter the rights of those policyholders to profits" (at p.82), in fact the decision merely recognised the contractual right of the plaintiff to a sum calculated by reference to the whole profits without deduction, irrespective of the terms of the articles for the time being. (there cannot have been any question of a policy-holder's having a proprietary right to any part of the assets of the company). the decision that the terms of the contract incorporated the original by-law 4 was actually compatible with the company's being free to alter its articles. if it altered the articles the company might put itself in the position that the fulfilment of its obligations to policy-holders would disable it from complying with its obligations to shareholders under the articles, but this is a separate mauer. see also ferran, above note 3, at p.355 and riley, above note 3, at pao. 8!. eg table a, article 70. 85 the denning law journal of the general meeting82. one might argue that, where a power is vested in the general meeting by statute, it is implicit that authority to accept restrictions on the exercise of the power must be reserved to the general meeting also. but if, as argued above, the statute does not preclude a contract restricting the exercise of the power, there seems to be no reason why the articles should not give authority to the directors to enter into such a contract83, if the articles have no express provision on the point, it may be that articles that are expressed to give the directors all the powers of management should be understood to give the directors such authority to be exercised for management purposes, so that directors would have authority to make a contract accepting a restriction on the exercise of a statutory power if the contract has a commercial purpose, for example, to secure finance for the company, but no authority if its purpose is to interfere in the control of the general meeting, for example to assist a prospective bidder for the company's shares84, the concern that directors may bind the company in respect of matters that principally affect the relationship between the shareholders and the company, but may indirectly affect outsiders, is not limited to the exercise of statutory powers. for example, directors might seek to accept restrictions on the power to issue shares or to pay dividends. here the potential conflict between outsiders' interests and shareholders is the same as in the case of restrictions on the statutory powers, but it cannot be settled by reference to the question whether the contract is inconsistent with a statutory empowering provision, and one would expect it to be settled by reference, broadly, to the issue of authority85. 82, howard smith v. ampol petroleum ( [ 1974] a.c. 821). the question whether in particular circumstances a contract entered into by directors is within their "powers of management" may also be expressed as the question whether the directors have entered into a contract for a "proper purpose". the question how to determine whether directors have acted for a proper purpose (that is, how to construe the articles, and how to determine what the purpose is of a particular contract entered into by the directors) will not be pursued here. ferran, above, note 3, at pp.358-361, discusses the proper scope of the directors' authority (and related issues) under the rubric of "constitutional imbalance". 83. the statutory empowering provision might be understood to allow restrictions on the exercise but not to allow arrangements facilitating its exercise, and this would mean that the directors would not have the authority to bind the company positively to exercise the power. cf art. 25 e.c. directive 77/91 (2nd company law directive), q.j. 1977 l26/1. 84. however it would be understandable if the articles were construed, in the absence of express provision, to withhold from the directors the power to accept a restriction on the exercise of a statutory power, even if entered into for a business purpose, on the ground that the principal significance of the power is for issues that primarily affect the shareholders' interests in and control over the company and the directors (i .e. "distributional" and" structural" issues. in the terminology suggested by eisenberg, above note i). rather than the management of the company's business. 85. where a contract is made without authority it is entirely void. where the directors are outside their actual authority under the proper purpose doctrine, the contract may still be binding on the company under s.35a companies act 1985 . as amended. the issue in connection with s.35a is likely to be whether the outsider is in good faith. what amounts to lack of good faith is not clear, but it may be that in connection with restrictions on the exercise of a statutory power, first, the outsider would not be in good faith if his motivation for seeking the restriction was not to protect his interests under a contract concerning the company's business, but to interfere in some way with control over the general meeting for its own sake; and, secondly, because the exercise of statutory powers is primarily a mailer affecting the shareholders' interests in and control over the company rather than its business, the outsider would be expected to check to see whether the articles include a specific restriction on the directors' authority in this respect. and would be in bad faith if he failed to do so (but see s.35b). 86 restraining the exercise of corporate statutory powers agreement by the company with a shareholder there is, of course, no general rule precluding a company from contracting with a shareholder. but a shareholder surely cannot make a contract with the company outside the articles that in effect simply varies his rights as a shareholder viz-a-viz the company and other shareholders86• if such a contract were enforceable by injunction, it would be tantamount to an alteration of the statutory contract binding on all other shareholders, and to their detriment, without going through the proper procedure for alteration of their respective rights laid down by the statutory contract; and indeed even if the contract were only enforceable by an order for damages, it would seem to be inconsistent with the statutory contract. in such a case, the correct approach is surely for the shareholder to procure the alteration of rights under the statutory contract through the general meeting8? this argument is consistent with the outcome in russell, where the company contract was with the shareholders88• however if a shareholder is dealing with the company as an outsider, that is, in relation to the company's business (for example as a lender), and he seeks a restriction on the exercise of a company power pursuant to an interest as an outsider, he should presumably be treated as an outsider89• the issue of removal of a director it is also arguable, as mentioned above, that the cases that appear to hold that a company may not bind itself not to exercise a statutory power may be explained by reference to the principle that the power to remove a director cannot be relinquished by the shareholders. this principle has been embodied in a certain form in the statutory 86. although presumably he could waive rights against the company. in baily v. british equitable assurance co [1904] 1 ch.374, at 385, cozens-hardy l.j. said (in a different context) " ... a shareholder must be regarded as an outsider in so far as he contracts with the company otherwise than in respect of his shares". see davenport, above note 3, at 559 .. on the other hand in allen v. gold reefs [1900-3] all e.r. rep.746, the court of appeal accepted that the statutory power of alteration could be displaced by a "special bargain" with a particular shareholder: see per lindley m.r. at p.748, per romer l.j. at p. 754, and the judges appeared to mean a "special bargain" in an extrinsic contract rather than a class right in the articles. this view is adopted by gore browne, ed. boyle & sykes, (jordans) sec 4.7. see also ferran, above note 3, at 351-2. 87. there is a problem that a provision in the articles restricting the company from exercising the power might not be enforceable unless it is a class right: see the discussion of class rights above. if this is so, however, it is not clear why it should be possible to circumvent the limitation by way of an extrinsic contract. 88. similarly in punt v. symons, british murac and cumbrian newspapers, the company contract was with a shareholder, and it was not intended to protect an interest of the shareholder as an outsider, for example as a lender, but in effect to bolster his rights as a shareholder. thus the argument would indicate that the contract should be unenforceable and the court should instead have based his protection on his rights under the statutory contract. where all the shareholders are party to the agreement, it may be possible to argue, following cane v. jones [1980] 1 w.l.r. 1451 that the shareholders' agreement actually amounts to an alteration of the articles. 89. it might be better to say that under the statutory contract the directors do not have the authority to enter into a contract with a shareholder concerning his rights under the statutory contract (and that the shareholder as a party to the contract will be bound by this restriction on the directors' authority in any dealing with the directors). 87 the denning law journal provision now in s.30390, but the provision was not in force at the time of the cases91• however one can argue that the principle received tacit recognition, to some degree, in the judicial treatment of the issue before the enactment of the provision. there are two issues that arise on the removal of a director. the first is whether the requisite power of removal exists under the company's constitution or by statute. the second is the effect on the director's appointment of an extrinsic contract for example, a service contract with the director, or a contract with an outsider conferring a right of appointment, or a shareholders' agreement concerning a directorship. it appears that, with regard to the first issue, aside from s.303, the company has no power to remove a director except in accordance with a provision of the articles providing for removal, so that (before the provision in s. 303 was enacted) to remove a director in the absence of a pre-existing provision for removal required an alteration of the articles to create such a power92• with regard to the second issue, again considering the position before the enactment of the provision in s. 303, it appears that if the removal was effective under the company's constitution, but in breach of a service contract with the director, the director could not obtain an injunction requiring the company to remedy the breach by restoring him to the position of director (by going through the appropriate procedure under the constitution), but could only recover damages93• s. 303, in addition to conferring a power of removal by ordinary resolution under the constitution, confirms that a service contract cannot be enforced by injunction to frustrate a removal under the section. punt and, on one view, southern foundries, were cases where, for the purpose of securing a director against removal under the constitution (with respect to the first issue above), a contract with the company purported to prohibit the company from altering provisions of its articles. instead of invoking a general rule that the company may not by contract restrict itself in the exercise of a statutory power, these cases may be satisfactorily explained on the basis that an injunction to prevent alteration of the articles will be denied in the particular case where the alteration is necessary to create a power of removal (with reference to the first issue above). an injunction 90. see above, text following note 29. 91. there is now also a provision that invalidates a service contract for more than five years unless it has been approved by the general meeting: s.319 companies act 1985. 92. imperial hydropathic hotel compny v. hampson (1882) 23 ch.d. i southern foundries v. shirlaw [1940] a.c. 701; gower, p.153. imperial hydropathic establishes also that a director can personally enforce by declaration or injunction his right to be recognised as such until a proper removal is carried out under the constitution, whether or not he is himself a shareholder. this is curious inasmuch as it means that a director not party to the statutory contract is permitted to rely on its terms, rather than having to depend on a shareholder enforcing the terms of the statutory contract. however the position would be intolerable if a director could not take action himself to establish his status in the event of a dispute between directors and particular shareholders, and if shareholders had to be alert to take action to protect the appointment of directors against purported removals. the position may be summarised by saying that a director, qua director, is an office-holder rather than an employee or agent, and therefore entitled to secure his office by injunction: cf malloch v. aberdeen corporation [1971] all e.r. 1278 at 1294, where lord wilberforce distinguished' 'pure master and servant cases" from a case where there is something "in the nature of an office or a status" (actually with reference to the availability of natural justice). 93. southern foundries v. shirlaw [1940] a.c. 701 88 restraining the exercise of corporate statutory powers is denied because the director should not be able to secure himself from removal by contract in this way. the argument above has been simply that the cases that have been relied upon in support of a general rule that the company cannot by contract deprive itself of a statutory power may instead be accounted for by reference to a much narrower rule concerning the removal of directors, for which there is some independent support. s. 303 extended the rule by creating a power of removal that could not be ousted by contrary provisions of the articles, as well as confirming that the power of removal could not be frustrated by an extrinsic service contract94• it is worth considering briefly the scope and rationale of this narrower rule, as a mandatory rule of company law (to be contrasted with the enabling provisions conferring powers of alteration of the memorandum and articles). one would normally expect the appointment of a fiduciary to be expressly revocable at any time because of the power wielded by the fiduciary and the danger of abuse. to the extent that a mandatory rule overrides an appointment in the articles, the rationale seems to be simply that shareholders have to be protected against their own rashn~ss, or failure to consider the long term, in committing themselves to a certain director. there are arguably stronger grounds for a mandatory rule if the directors themselves are involved in arranging the directorship: for example where they recommend an appointment, or where they grant a service contract, which, if enforceable by injunction, would amount to an appointment. here it may be argued that the shareholders should be able to procure a removal to obviate the danger of exploitation by directors9s• it is arguable also that restrictions on the removal of directors is against the public interest (as opposed to the private interest of the company's shareholders) because it tends to frustrate takeovers, which are (or may be) in the public interest96• there are certain situations where the scope of s.303 and the underlying common law may be in issue. s.303 provides expressly that where a director has a service contract with the company it cannot be enforced by injunction to frustrate a power of removal. but the section says nothing about the case where the director holds office 94. the rule against enforcement by injunction of a director's service contract is sometimes understood as an application of the general rule that an injunction is not available to enforce a contract for the provision of personal services. the status and scope of this rule are controversial. it is arguable that non-enforcement by injunction is based not on a rule of law but on a rebuttable presumption that a breakdown in relations has made it impossible in practice for the contract to be performed: see hill v. parsons [1972] ch.305, powell v. london borough of brent [1987] i. r. l.r. 466, harvey on industrial relations and employment law. ed. perrins, para a 178, smith & wood, industrial law (butterworths, 5th ed.) p. 271. a shareholders' resolution (or a board resolution) removing a director does not necessarily imply any breakdown in relations between the director and those. if anyone, with whom he has to maintain satisfactory personal relations in order to perform his service contract. it may be better to regard the director's position as governed by a specific mandatory company law rule. the rule against enforcing service contracts would not apply to an extrinsic agreement granting a power of appointment. 95. this would be an application of the "opportunistic amendment hypothesis" for the justification of a "power allocating" mandatory rule, in gordon, above note 14, a p.1568. 96. see farrar, p.606; bradley (1990) 53 m.l.r. 170; easterbrook & fischel, above note 13, at pp.166-174. 89 the denning law journal under a power of appointment given to an outsider by contract, which was the situation in punt and in british murac. however the corresponding australian provision97 provides that where a director represents a debenture-holder, his removal by ordinary resolution does not take effect until a replacement is appointed by the debentureholder. thus the provision of the debenture giving a power of appointment appears to be enforceable by injunction, although not to secure a particular director against removal. in this situation, first, the company has a strong commercial interest in being able to make a contract that the outsider can enforce by injunction, since this form of enforcement is indispensible if this type of contract is to be viable at all; and, secondly, there is no risk of substantial loss of control over the management as a whole, or of exploitation by directors, and so a curtailing of the principle of exclusive control over directorships by the general meeting is justified98• however one would expect the position to be different if a contract purported to give an outsider by contract the power to appoint the majority or even a substantial proportion of the directors. it is worth noting that in punt, where the outsider's right of appointment was not enforced by injunction, the contract purported to confer a right to appoint all the directors, whereas in british murac, where an injunction was granted, the contract purported to confer only the right to appoint one or two directors as representati ves99• neither s. 303 nor any case law predating it deals with the case where a shareholders' agreement prohibits the shareholders from voting to remove a director. is such a contract also unenforceable by injunction? the principle behind the section suggests that such an agreement should be unenforceable, but the section explicitly overrides an agreement between shareholders entrenching directors only in the form of a provision of the articles. the issue has risen, implicitly, in the cases concerning quasi-partnership companies where the shareholders have established the company on the understanding that they will be permanent directors!. on the narrow approach to statutory interpretation adopted in bushell v. faith, a court might well conclude that, whatever its rationale, s.303 fails to cover a shareholders' agreement2. however the approach seems to have been that s.303 does invalidate such an agreement, but that, if the power is exercised to remove from his directorship a shareholder who had a "legitimate expectation" to remain as director, the shareholder will be entitled, 97. companies act 1981 (cth) s.221(5) 98. whereas, on the other hand, damages are a tolerable if imperfect remedy for loss of a service contract, and if all service contracts were enforceable by injunction there would be a risk of substantial loss of control. 99. see gore browne, sec.4.7. similarly it must be doubtful whether a management contract purporting to give an outside body full and exclusive powers of management is enforceable by injunction. in lee panavision v. lee lighting [1991] bcc 610 such an agreement was unenforceable for other reasons; jaffey (1994) 15 co. law. 22. i. in fact these cases are not usually approached on the explicit basis that there is a shareholders' agreement providing for permanent directors, but that in the circumstances the shareholder has a "legitimate expectation" to remain as director although this legitimate expectation arises from the dealings between the shareholders, and so is really tantamount to an implicit shareholders' agreement. 2. se above, text following note 29. this would mean that the agreement could be enforced to prevent voting on a resolution to exercise the statutory power of removal. 90 restraining the exercise of corporate statutory powers under the court's jurisdiction to protect against minority oppression, to be bought out or possibly have the company wound up3. the case where, as in a partnership, the shareholders establish the company with a view to exploiting both their capital and their management expertise is another example of a situation where the mandatory rule allowing a shareholder voting majority to remove a director has to be curtailed, not in this case to facilitate the company's dealings with outsiders, but to encourage the establishment of such companies in the first place4• summary it is important to establish whether provisions of the companies act that confer powers on the company are intended to be mandatory in the sense that they deny shareholders the freedom to exclude or restrict the exercise of the power. the best interpretation of the statutory provisions that provide for the alteration of the memorandum or articles is that they do not deny shareholders this freedom. this means in particular that neither a shareholders' agreement restricting voting on the exercise of such a statutory power, nor an agreement by the company not to exercise the power, is inconsistent with or invalidated by the statutory empowering provision. however there may well be other grounds for holding such agreements unenforceable, and arguably the presence of such grounds explains the decisions (including the recent decision in russell) that appear to hold that an agreement by the company not to exercise a statutory power is inconsistent with the statutory empowering provision. the statutory provisions concerning alteration of the memorandum or articles are to be distinguished from the provision of s.303 concerning removal of a director, the whole purpose of which is to confer a power that is incapable of being excluded or restricted by contrary agreement. since s.303 was clearly intended to be mandatory in this sense, it seems to be a flaw in the drafting of the provision that it does not expressly stipulate the shareholder voting rights that are to apply on its exercise, and this flaw was exposed in bushell v. faith. 3. under s.459 or under the "just and equitable winding up" jurisdiction under s.122(1)(g) insolvency act 1986; e.g. ebrahimi v. weslbourne galleries [1973] a.c. 360, re bird precision bellows [1985] 3 all e.r. 523; see gower, p.i54. 4. easterbrook and fischel, above note 13, p.235. 91 5 denning law journal 2020 vol 32 p 5-23 owens v owens: a most curious case frances burton* * senior lecturer in law, university of buckingham. co-director, international centre for family law, policy and practice, www.icflpp.com. e-mail: frances.burton@ buckingham.ac.uk 1 later passed into law as the divorce, dissolution and separation act 2020, which received the royal assent on 25 june 2020 but is not yet in force. 2 [2018] uksc 41, heard in the supreme court on 17 may, 2018, on appeal from [2017] ewca civ 182, with judgment on 25 july 2018. abstract the combination of the long brexit delays, largely unwelcome general election, a change of leadership and cabinet composition in the conservative government and finally the coronavirus has between them resulted in a long pause in expected reforming legislation which is much needed in family law, including the initial loss of the divorce dissolution and separation bill 20191, generated in 2019 by the failure of mrs owens’ ’ supreme court appeal in the now notorious case of owens v owens.2 while this was immediately hailed by the media as justification for urgent reform of the law of divorce in england and wales – on the grounds that english law was almost alone in modern liberal jurisdictions in lacking a no fault divorce regime – clearly this has now been overtaken by subsequent events. while it may be factually accurate that england and wales does not have such a regime for dissolution of marriage without fault and by consent (at least without satisfying the inconvenient condition of waiting for the two-year delay necessary for a decree on the basis of two years of separation and consent), and perhaps should have one for the reason stated, the failed owens appeal has absolutely no jurisprudential connection with any urgency for reform of the law in order to secure such a decree at all. this is because the legal profession has been effectively obtaining divorces under the present law for over 40 years, and, notwithstanding owens, has been continuing to do so since 2018, albeit with the caveat that drafting must be undertaken with extreme care to be sure to avoid a repeated debacle. nevertheless, on account of the age of the present statute, legal, political and social theorists of course have strong arguments for a no fault addition to the existing matrimonial causes act 1973 or even for replacing the existing provisions of that statute altogether. 6 owens v owens: a most curious case however this is because the present statute is itself a re-enactment and consolidation of the original divorce reform act 1969 which led the post-wwii reforms creating our current law of divorce, so is well past its ‘sell-by date’, but not because it does not work in modern times. if anything, and especially with the assistance of s76 of the serious crime act 2015, s 1(2)(b) of the 1973 act works entirely consistently with present philosophy, that is, as marriage is a partnership of equals there is no place for any form of domestic abuse within it. in fact mrs owens thus could (and arguably should) have obtained her divorce on the existing basis, pursuant to s 1(2)(b) of the 1973 act, namely on that of her husband’s ‘behaviour’. thus, as indeed hinted by lady hale in her paragraph 50 of the supreme court judgment, which she added to the agreed text set by lord wilson, there was clear evidence of the alleged ‘authoritarian, demeaning and humiliating conduct over a period of time’, which in law was capable of founding a decree, and there was existing case law supporting this in the case of livingstonestallard v livingstone-stallard.3 consequently in her paragraph 53 she identified what in her view was thus ‘the correct disposal … to allow the appeal and send the case back to be tried again’ – which, however, could not be adopted in the particular circumstances, owing to the fact that no one, including the appellant, mrs owens, wanted to go through such a trial again, not least as even her counsel, philip marshall qc, ‘viewed such a prospect with dread’. thus, in her paragraph 54, lady hale concluded that she was ‘reluctantly persuaded that this appeal should be dismissed’ – a conclusion, however, not stopping her from including some forthright comments on the conduct of the case below, with which any analysis can only agree. so, whatever happened in owens v owens? in the central london family court, the court of appeal and the supreme court? 1. introduction whether he agreed with lady hale or not, the then minister of justice and lord chancellor, the rt hon david gauke, also took up the public demand for reform as he had already said he would when pressed to do so following the owens decision in the supreme court. on 9 april 2019 when the government published its response to the autumn 2018 consultation, reform of the legal requirements for divorce, which had closed on 18 december 2018, it was announced that reform would be taken forward ‘as soon as parliamentary time allows’. then on 10 april 2019 the commons library briefing paper provided the expected detail, namely 3 livingstone-stallard v livingstone-stallard [1974] fam 47, a case on very similar ‘authoritarian, demeaning and humiliating’ facts. the denning law journal 7 retention of the present two-stage decree process of decree nisi and decree absolute – but in future to take place over a minimum timeframe of 6 months – also retaining a statement of irretrievable breakdown but with no need to allege conduct or separation as under the facts in s 1(2) of the present act. there was also to be provision for a joint application,4 but otherwise the bar on presentation of a petition within one year of the marriage was retained and defence to such a petition is to be limited to some specific legal grounds.5 thus, it was thought, mrs owens would probably at last have her decree absolute by some time in 2020, and the long-standing lobby by such as resolution, the solicitors’ family law association, and others, including independently by nigel shepherd, twice elected as resolution’s national chair, since his pressure for ‘ending the blame game’6 would at last have been successful. in the circumstances, commentators queried whether in the circumstances it was now even worth going in to the sorry court history of the owens case, to which the answer was occasionally in the affirmative, since, as identified by lady hale, this was clearly a miscarriage of justice where a new hearing was technically required. moreover, there is also still a school of thought, which seems persistently to remain espoused by a sector of the population7 that divorce is wrong unless fault is established. consequently some thought it might be fair to ensure that mrs owens was not next called upon to endure any new claim from such a quarter that she would never have obtained her decree but for the change in the law which was then soon likely to give it to her – an inaccurate and ill-informed claim, since there was actually ample evidence for her to have obtained it already, as may now be demonstrated. 1.1. the three hearings a careful examination of the transcripts of the hearings at all three levels – first instance, court of appeal and supreme court – unsurprisingly confirms that, for some reason not immediately discernible, only lady hale had fixed on the crucial issue in the case, which should have ensured a decree: namely the ‘authoritarian, demeaning and humiliating conduct over a period of time’, which – quite apart from 4 a welcome change, since this is often the process in civil law jurisdictions, for example, spain where the petition must be presented jointly. 5 catherine fairbairn and cassie barton, commons briefing papers sn01409. 6 nigel shepherd, ‘ending the blame game: getting no fault divorce back on the agenda’ (2009) 39 family law, 122–126. 7 which according to research (although never specifically identified) in the piloting of information meetings in 1996 was the cause of the defeat of the last attempt at introducing no fault divorce under the family law act of that year. the briefing paper referred to in n2 above also (no doubt correctly) records the persistence of arguments against ‘easier’ divorce. 8 satisfying s1(2)(b) for divorce – would have been sufficient to obtain a non-molestation order against such a husband under the family law act 1996 s 42, and this especially so since the serious crime act 2015 s76 enlarged the previous definition of the domestic abuse required for such an order to include ‘coercive or controlling behaviour in an intimate relationship’. moreover s 76 goes on to provide that a person who ‘repeatedly or continuously’ engages in such behaviour actually commits an offence, as well as providing the basis for a s 42 protective injunction. thus if this sort of behaviour is in fact an offence it is difficult to see how it could be excused simply because the parties are married, albeit that some see that relationship as one where the spouses are supposed to put up with some ‘wear and tear’, an opinion which seemed to be shared by the judge of first instance who at his hearing and in his judgment seemed to be pointing out that some such was to be expected in a marriage. however, this surely cannot include otherwise criminal behaviour? in the circumstances, despite lady hale’s apparently lone perspicacity, it is also hard to see the difficulty of any judge, at any level, in grasping the nature and impact of such behaviour within a marriage, especially as a contemporary matrimonial relationship is now seen as a partnership of equals8 rather than as the patriarchal institution of former times, when, for example, even mr livingstonstallard in 1974 was not allowed to get away with the ‘coercive or controlling behaviour in an intimate relationship’ which at that time was not yet an offence. however, again it seems that only lady hale identified the possible reason for this difficulty, which cost mrs owens her well-deserved decree, when she tactfully went on in her paragraph 50 to opine: ‘those who have never experienced such humiliation may find it difficult to understand how destructive such conduct can be of the trust and confidence which should exist in any marriage’ and cited the analogy of the role of constructive desertion in employment law. it must therefore inevitably be asked: whatever happened at first instance? and in the court of appeal, where the first appeal came before the experienced and creative president of the family division of the time (whose establishment since 2014 of the unified family court has involved so much modernisation which he led with sensitivity and skilful recognition of the driver of social change); and when sitting with him were two lady justices of appeal, including hallett, lj, whose background in the impact of social change in both the legal profession9 and in criminal law10 should have been of assistance in the interpretation of s 1(2) of the matrimonial causes act 1973 which was at the heart of the ‘behaviour’ fact of the existing law of divorce and which should have delivered a decree to mrs owens. 8 per lady hale, owens v owens [2018] uksc 42, paragraph 47. 9 first woman chairman of the bar, 1998. 10 now baroness hallett, until october 2019 vice-president of the court of appeal, criminal division. owens v owens: a most curious case the denning law journal 9 1.2. the law: matrimonial causes act 1973 s 1(2) the relevant part of the statutory provision under s 1(2), which was relied on by mrs owens, reads as follows: section 1 divorce on the breakdown of marriage (1) … (2) the court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say (a) … (b) that the respondent has behaved in such a way that the petitioner cannot be expected to live with the respondent; … that is it: plain english with no gloss from case law, although there used to be some in the pre-1969 law and in the early days after the 1969 divorce reform act was consolidated into the act of 1973. thus s 1(2)(b) was all mrs owens had to prove, since it seems it was accepted by everyone but the respondent husband that the marriage had broken down: at first instance, in the central london family court, judge tolson expressly found that it had broken down11 although mr owens and his advisers ‘energetically denied that any behaviour on his part had caused the breakdown of the marriage’ and mr owens himself ‘twice averred that if, which he did not accept, the marriage had broken down, the breakdown had not been the result of his behaviour’.12 this case is curious at every level, since it has long been accepted that large numbers of undefended divorces can be, and have been, granted on the basis of three or four instances of ‘behaviour’, which evidence that the petitioner cannot reasonably be expected to live with the respondent. moreover, since the second half of the 1970s, which coincided with the strong influence interpreting the then new matrimonial causes act 1973 of the experienced family judge, ormrod lj,13 it has been accepted that, in the interests of preserving post-decree family harmony and recognising the solicitors family law association’s approach to such ideals,14 the ‘mild behaviour petition’ could in appropriate circumstances be sufficient to 11 owens v owens [2018] uksc 42, paragraph 20. 12 ibid, paragraph 40. 13 jaqueline burgoyne, roger ormrod, martin richards, divorce matters, pelican, 1987. 14 the sfla, more recently using the business name ‘resolution’ by which it is now known, was founded in 1982 to mark this change of approach to ‘behaviour’ from the 10 evidence the right to a decree without unduly antagonising the other party or inspiring an urge to defend such a petition. this was done by utilising, as he put it, perhaps ‘the first, the worst and the last’ of the incidents complained of, perhaps also including one that was ‘witnessed’. following this 1970s shift of emphasis, it has also long been accepted that the test to establish such behaviour is partly objective – what would a reasonable person think of the conduct in question15; and partly subjective, looking at ‘this husband and this wife’.16 1.3. interpretation of the matrimonial causes act 1973 s1 (2)(b) in theory, the tests should be no different when a suit is defended, because in that case it simply becomes a question of the burden of proof, the petitioner must proactively prove his or her case and the judge must choose whom to believe when the respondent tells a different story from the petitioner; indeed this testing of the case is the very purpose of the hearing in a defended suit – whereas an undefended case would proceed only on the evidence in the papers submitted to the court. thus if the respondent does not successfully challenge the petitioner’s case in some way, the decree will be granted, provided the behaviour complained of could (i) objectively be sufficient to qualify for a decree on the fact of behaviour, that is, not be totally trivial, but without further gloss, and (ii) as a matter of fact satisfy the hybrid objective and subjective test which has emerged from case law in the years since 1973. this, of course, raises the question of what is ‘totally trivial’, or as the judge of first instance in this case chose to call it, ‘at best flimsy’ or such as ‘scarcely merited “criticism” ’,17 which (whatever else it might or might not include in the eyes of a particular judge) surely cannot correctly describe conduct pre-divorce reform act 1969 law, based on ‘cruelty’, together with the alternatives of adultery or desertion which have continued to exist in the reformed law. 15 joseph jackson, cf turner and margaret booth (eds), rayden on divorce (12th edn, butterworths 1974) vol 1, 216 on the basis of which the court of appeal judgment in owens v owens [2017] ewca civ 182, 24 march 2017, at paragraph 30, quoted cairns lj in o’neill v o’neill [1975] 1 wlr 1118, at 1121; or what would a jury think, on which the court of appeal in their judgment of 24 march 2017 refers at paragraph 29 to dunn lj (another experienced family judge of the early post 1969–1973 interpretative era of the new statutes) in livingston-stallard v livingstone-stallard, n2 above. 16 livingstone-stallard v livingstone-stallard, n2 above; and balraj v balraj (1980) 11 fam law 110, per cumming-bruce lj, ‘there is of course a subjective element in the totality of the facts that are relevant’: see the court of appeal judgment in owens v owens, [2017] ewca civ 182, at paragraph 32. 17 owens v owens, [2018] uksc42, paragraph 20. owens v owens: a most curious case the denning law journal 11 expressly prohibited by a statute which is also specifically entitled a serious crime act and containing provisions dealing with such issues. 2. the first instance hearing in the central london family court when the case was initially before the judge of first instance, hh judge tolson qc, at the oral hearing18 (which, as explained, was necessary since the case was defended by the respondent or the decree nisi would have been certified at a lower level of the court judiciary) there was apparently independent evidence available, though not called, of one of the most disagreeable incidents relied upon by the petitioner, and which is referred to in the court of appeal judgment19 as ‘the restaurant incident’. about this, it was pleaded in the petition that the respondent had ‘made stinging remarks about the petitioner which made her and [their fellow diner] f20 feel visibly uneasy’. it seems that the upshot of this incident, which might almost alone have won a decree, was that the respondent could not even leave his public disparagement of the petitioner there but, as the petition alleged, he next snapped at the petitioner when, after speaking to a waiter about the food, she then asked what point the conversation had reached, the respondent then in turn commenting “you missed out by thinking it necessary to talk to the waiter”, upsetting and embarrassing the petitioner in front of f. f rushed to the petitioner’s defence as he clearly agreed that the respondent’s critical remarks were unjustified. accordingly it is hard to see how the judge could have accepted the respondent’s excuse (found in his answer to the petition) which sought to explain away his behaviour on this occasion by claiming that it was the petitioner who was at fault, and not he, on the grounds that she was rude in ‘calling over and engaging with the waiter while f was talking to the two of them’, especially as the respondent’s next comment – that he had ‘sought to engage her attention to indicate that f was in the course of speaking to them’ – simply does not ring true. 18 15 january 2016. 19 [2017] ewca civ 182, paragraph 12, in which the respondent persisted in loudly berating his wife within the hearing of ‘numerous strangers’ and ‘would not let the matter drop’. 20 f was the male friend of the couple whom the petitioner had invited to dine with them in the restaurant. 12 in the first place, that was hardly the way in which, rather more courteously, to achieve his apparently stated objective: if indeed that was his objective rather than simply to have the last word. the respondent’s final comment that ‘any embarrassment that may have been caused by the petitioner was of her own making’ does not accord at all with the fact that the couple’s guest, f, ‘rushed to the petitioner’s defence’. it is difficult to understand the apparent disregard by the judge of the respondent’s unpleasant behaviour in this particular incident when he dismissed her petition on the basis that she had ‘failed to prove, within the meaning of section 1(2)(b) of the matrimonial causes act 1973 that her husband had “behaved in such a way that [she] cannot reasonably be expected to live with [him]” ’. unlike the first incident of ‘behaviour’ pleaded on behalf of the petitioner, which is referred to as ‘the airport incident’ this public chastisement of the wife21, in front of their friend (and anyone else who might have been listening in the restaurant) was witnessed, and thus in logic could not simply be airbrushed out as the respondent claimed, since the way in which he spoke to her was not only a completely unacceptable manner in which a husband might be expected to address his wife in public, but also an entirely inappropriate, controlling and abusive way in which to speak to anyone in modern times in which verbal as much as physical abuse is not tolerated. while the judge apparently accepted22 that the husband was ‘somewhat old-school’, and that he could also find that the wife was ‘more sensitive than most wives’, 23 it does not seem essential to be unduly sensitive for a wife to take issue with being spoken to in public in the manner referred to, since not only is contemporary marriage regarded as a partnership, but controlling and coercive behaviour is now formally articulated within the canon of domestic abuse24; and such behaviour is alleged by the petitioner on the part of the respondent in other paragraphs of her petition, such as in the case of ‘the airport incident where the court of appeal noted’25 that the petition pleads that he ‘was visibly chastising her in front of numerous strangers’. in the circumstances that the judge of first instance was clearly familiar with the authorities, including such cases as livingstone-stallard v livingstonestallard,26 the facts of which had some obvious similarities with the owens’ 21 paragraph 12 of the court of appeal judgment. 22 paragraph 49 of the court of appeal judgment, quoting the third section of judge tolson’s judgment. 23 ibid. 24 serious crime act 2015 s.76. 25 n8. 26 n2. owens v owens: a most curious case the denning law journal 13 situation, it is odd that instead of distinguishing that case judge tolson instead relied on sweeping generalisations to categorise his view of the petition as ‘hopeless’ (his judgment paragraph 2), ‘anodyne’ (paragraph 7), ‘scraping the barrel’ (paragraph 13), that it ‘lacked beef’ (paragraph 7) and was ‘at best flimsy’ (paragraph 12). he added that the wife had ‘exaggerated the context and seriousness of the allegations to a significant extent’, commenting that ‘they are all at most minor altercations of the kind to be expected in a marriage’ and that ‘some are not even that’.27 this is surely a breathtaking comment if it was seriously meant to express a norm in relation to contemporary marriage. clearly marriages have ups and downs but regular and persistent public criticism of a wife by a husband, as though she were some kind of ignorant inferior, or a rebellious teenager in need of correction, surely is not a normal feature of the contemporary marriage partnership. similarly the judge dismisses the wife’s case as a bundle despite expressly referring to her ‘increased sensitivity to the husband’s old-school controlling behaviour, which it seems’28 in his view did not amount to ‘a consistent and persistent course of conduct’ but were ‘isolated incidents consisting of minor disputes’. nevertheless, even taken at their lowest, these incidents could not fail to indicate a noxious atmosphere in the marriage, especially when the accumulation of minor incidents of significantly less nastiness was what had obtained a decree for mrs livingstone-stallard in 1974; moreover the livingstone-stallard divorce had occurred at a time at which the judiciary faced the greater task of adjusting to the change of approach from the significantly different pre-1969 law, based on the entirely different concept of cruelty rather than the behaviour fact introduced in the divorce reform act 1969 and consolidated into the 1973 act which is the one still in force; and also before the subsequent social change which had then transformed the contemporary marriage from an unequal relationship still dominated by the husband to the equal partnership which is the norm today. in short it is not easy to see – as he did not compare the two cases, and declined the petitioner’s request for more detailed reasons – why judge tolson took the view he did: unless it was simply that he believed the respondent’s constantly exculpatory explanations for his critical and controlling conduct because he considered that such boorish behaviour was only normal because mrs owens had been engaging in an affair, of which there is some evidence when he refers to ‘the batch of allegations which can be categorised as “the husband’s reaction to the affair” ’.29 27 paragraph 46 of the court of appeal judgment. 28 paragraph 49 of the court of appeal judgment. 29 paragraphs 47 and 48 of the court of appeal judgment. 14 3. the court of appeal hearing it seems possible from the first page of their judgment30 that the court of appeal approached the case on the basis that they might have been able to find an error in the first instance refusal of the decree sought, so that that ‘the judge was “wrong” – in which case we can interfere’ but they then seem very quickly to have decided that the real question was ‘whether, in 2017, the law is in a remotely satisfactory condition’. they refer, in line 2 of their first paragraph, to the fact that judge tolson qc had ‘correctly, found as a fact that the marriage had broken down’, and also ‘found that “the wife cannot go on living with the husband” and continued: “he claims to believe that she can, indeed she will, but in this in my judgment he is deluding himself” ’. they then move on to say, as though this is surprising, ‘yet the judge dismissed her petition’. while it was early established that both the necessary fact under s 1(2) and irretrievable breakdown must be evidenced, yet they apparently devoted no scrutiny to the fact that this ‘delusion’ of mr owens’ might have spoken for itself in the face of the fact that everyone but he could see that the marriage had broken down! indeed mr owens’ entire behaviour as recorded in all transcripts and judgments in the case is strongly reminiscent of the case of hajimilitis (tsavliris) v tsavliris,31 a case before the recorder alison ball qc, and a very good example of the respondent’s proving the case for the petitioner simply by behaving so badly and unreasonably in the hearing that the judge could conclude that he had single-handedly established the petitioner’s case! the court of appeal made no comment on that specific case, but merely listed it amongst the authorities to which they had been referred, of which they noted it was the most recent in that group, in which the list included the livingstone-stallard,32 ash v ash,33 stevens v stevens,34 o’neill v o’neill,35 balraj v balraj,36 buffery v buffery37 and butterworth v 30 [2017] ewca civ 182, paragraph 1. 31 [2003]1 flr 181. 32 n2 above, per dunn j, and paragraphs 27 to 34 for the remaining cases. 33 [1972] fam 135, per bagnall j (although his conclusion that like can be required to live with like e.g. alcoholic with alcoholic, is no longer considered good law, see e.g. per lord wilson, owens v owens [2018] uksc 41, at paragraph 33, ‘each spouse would now be entitled to a decree’). 34 [1979] 1 wlr 885, per sheldon j, in which he confirms that the behaviour need not be the cause of the marriage breakdown. 35 [1975] 1 wlr 885, per cairns lj, ca. 36 n14 above. 37 [1988] 2 flr 365, ca. owens v owens: a most curious case the denning law journal 15 butterworth.38 it was possibly this last case of which the court might perhaps have made more in their judgment. first that was a case in which two particularly able, and always practical and sensible, judges (brooke and balcombe ljj) agreed with dunn lj in livingstone-stallard v livingstone-stallard when dunn lj had said: coming back to my analogy of a direction to a jury, i ask myself the question: would any right thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the characters and personalities of the parties? it seems that the court of appeal missed the opportunity at this point to explore whether – and probably to find that – the judge at first instance had been ‘wrong’ in dismissing the petition after hearing evidence of the cumulative effect of the four instances of the ‘airport’, ‘restaurant’, ‘pub’ and ‘housekeeper’ incidents39 on which the first instance hearing concentrated. these were probably especially important in arriving at a conclusion that the wife had proved her petition and that she should have been given her decree nisi, since there is also ample support in paragraphs 46 to 48 of the court of appeal judgment that in that court they were aware of the fact that judge tolson was treating the husband’s behaviour as provoked by the wife’s affair, and not therefore finding anything wrong even his most unpleasant comments, or that it was unreasonable for the wife to have to endure and tolerate them. the judge even made a point of reiterating this in the parts of his reserved judgment which the court of appeal quotes in their paragraphs 47 and 48. in paragraph 47 they repeat the judge’s comment: ‘the wife did have something to hide and she had hidden it. i interrupted the cross-examination of the wife (which was perhaps inevitably hitting the mark) to ask her whether or not she could see that such a reaction by the husband might in context to be said to be “fair enough”. i suspect that she did see this.’ in paragraph 48 of the court of appeal judgment they quote the judge’s unsympathetic remarks to the wife (in respect of the husband’s sarcastic comments to the wife that she had prolonged her visit to a picture framer that ‘he must have been an interesting framer’). in this context he is clearly deserting the usual judicial impartiality and taking the husband’s side when he says ‘the objective observer can scarcely criticise the husband, especially as the remark was made only 6 months after the husband first knew of the affair and less than 4 months after he had first taxed her with it’. it is worth noting that, 38 [1997] 2 flr 336, ca. 39 paragraphs 12 to 19 of the court of appeal judgment, quoting judge tolson’s reserved judgment of 26 january 2016 and the responses provided by the respondent. 16 when the case gets to the supreme court, lord wilson virtually instantly confirms that the affair is irrelevant to the wife’s right to petition under s 1(2)(b). however, these comments of judge tolson’s also ignore the established approach to adultery which has subsisted since before the divorce reform act 1969,40 namely that adultery is usually a symptom rather than a cause of marriage breakdown and, unlike the pre-1969 law, that the law under the 1973 act does not require either a link between the marriage breakdown and the behaviour relied on nor a discretion statement where a spouse who brings a petition but has committed adultery himor herself must declare this to the court. while unfortunately there was no evidence before the central london family court of the husband’s behaviour before 2012, when it is accepted that the affair had begun, there would still appear to be a chicken and egg situation here, since if the husband was as uniformly nasty before 2012 as he clearly was afterwards, all the blame cannot be laid on the wife for having an affair. her petition claims in its paragraph 241 that the husband provided her with no ‘love, attention or affection and was not supportive of her role as a homemaker and mother which has made the petitioner feel unappreciated’ – as has been seen in the airport and restaurant incidents, about which the best the judge could say was that her account was ‘exaggerated’. since the judge apparently did not dispute the facts that these incidents had happened, also conceded that the marriage had broken down and the husband was deluding himself if he thought otherwise, and that ‘the individual circumstances of the spouses and the marriage’ must also be considered, it is odd that in applying dunn j’s ‘right thinking person’ test he did not conclude that the petitioner had established her case. this must be especially so given that in their paragraph 45 the court of appeal records that the judge had emphasised dunn j’s livingstonestallard wording42 by italicising it, and their judgment had added in the same paragraph: ‘judge tolson recognised that he had to take into account “the whole of the circumstances” ’. except that he did not. he has emphasised mrs owens’ affair, as recorded in the court of appeal’s paragraphs 47 and 48, but not asked himself what role the husband’s personality and behaviour might have played in her seeking such an affair, especially when paragraph 2 of her petition records no 40 in fact since the report of the archbishop’s group on divorce reform putting asunder, 1966, and the law commission report the field of choice, 1966. 41 as quoted in paragraph 4 of the court of appeal judgment. 42 ‘would any right-thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the characters and personalities of the parties’. owens v owens: a most curious case the denning law journal 17 ‘love, attention or affection’ and that he is ‘unsupportive’ of her domestic role so that she feels ‘unappreciated’. 4. the court of appeal’s reasons for not interfering the judgment records that ‘it is not the function of an appellate court to strive by tortuous mental gymnastics to find error in the decision under review when in truth there is none.… to adopt lord hoffman’s phrase, the court must be wary of becoming “embroiled in narrow textual analysis” ’. of course it must not. but the missing link here is the way in which the respondent treated the petitioner in this case, and the way he persistently spoke to her in the presence of third parties surely cannot be justified by the fact that she had had an affair – after, according to her, recent years of no ‘love, attention or affection’ from her husband, the respondent, which it seems was actually not taken into account in ‘all the circumstances’. moreover the judge himself records, and the court of appeal repeats (their paragraph 49), his own words in which he refers to the airport, restaurant and pub incidents as ‘merely examples of events in a marriage which scarcely attract criticism of one party over the other’ yet the wife’s counsel has made a submission to him on ‘the wife’s increased sensitivity to the husband’s old school controlling behaviour’ which is the very conduct which s 76 of the serious crime act 2015 had only 2 years previously, and after a sustained campaign to include such psychological harm in protective legislation, statutorily designated as domestic abuse – which no wife is obliged to endure, since it entitles any such victim to seek the protection of an injunction, yet in the supreme court, lady hale (a judge with a background in family law and equality & diversity) notices immediately in her paragraph 50 of their judgment in 2018 that the behaviour is controlling and coercive. it must be asked: did no member of the court of appeal in 2017 recall this statute, when the court included the president of the family division who presides over the family court where such injunctions are regularly sought and and granted and the deputy president of the court of appeal, criminal division? the judgment of the court of appeal does then pause momentarily while the president considers the fact that nowhere in his judgment does judge tolson make an explicit reference to the cumulative effect of a series of more minor incidents, which was precisely what was addressed in livingstone-stallard v livingstonestallard.43 to refute this the court relies on the judge’s reference ‘in his selfdirection’ to ‘the whole of the circumstances’ and the fact that he simply did not 43 n2 above. 18 believe mrs owens, criticised ‘the wife’s case generally’ and considered that she was ‘cherry picking’.44 it seems that the court of appeal might have been wrong in their instant conclusion here, and right to stop and think about this issue at the particular point in their judgment. the remainder of the judgment focusses on much of the history of the law of divorce and the desirability of a no fault divorce law which the court of appeal had clearly thought the important issue in connection with the case; also on the inapplicability of article 8 of the convention on human rights (respect for family life) and of article 12 (right to marry) to any right to divorce, and on the conclusions of hallett and macur ljj that they concurred in dismissal of the appeal, albeit as hallett lj says ‘with no enthusiasm whatever’.45 however it is also odd that the mention in paragraph 89, as part of the president’s review of the development of family law and in particular the law of divorce, of the quotation from sir james hannen in the 1911 case of pretty v pretty (the king’s proctor shewing cause)46 did not stir a memory on the part of one or both of the two lady justices of lady hale’s 2001 article ‘why should we want more women judges?’,47 in particular when the president included in the court’s judgment in which they were to concur what had been said in that 1911 case that ‘habits of thought and feminine weaknesses are different from those of men’; in other words precisely lady hale’s point, both when she wrote the 2001 article and when the owens case finally reached the supreme court in 2018, when she immediately fastened onto the crucial equality and diversity issues which identified the golden threads in its previous litigation history. however hallett lj did comment on the impact of conduct which might, in a happy marriage, not have had the same impact as might be felt in an unhappy one, the very point that was made later in the supreme court by baroness hale48 but she took this no further, as she might have done at that time, when referring to the employment law analogy later developed by lady hale. 44 court of appeal judgment paragraph 72. 45 court of appeal judgment paragraph 99. 46 [1911] p 83 at 87. 47 brenda hale, (2001) public law, 489–504; further feminist writing has also elaborated on this article in which lady hale comments that women’s wider perspectives on the issues in some cases (gained through their life experience) may also note threads in a case which male judges might miss owing to their own different lives, see, for example, alison diduck and katherine o’donovan (eds), feminist perspectives on family law (routledgecavendish 2007). 48 court of appeal judgment paragraph 100. owens v owens: a most curious case the denning law journal 19 5. owens v owens in the supreme court at least the supreme court had the benefit of the presence of three family lawyers also with gender balance (an academic with practice and extensive judicial experience, baroness hale of richmond, and two former practitioners also with extensive family law and other judicial experience, lord wilson and lady black). lord mance and lord hodge, both experienced generalists, made up the remainder of the bench of five. lord wilson wrote the judgment of the court and immediately recorded in it49 that hh judge tolson qc had received no evidence of the state of the owens’ marriage before 2013, which would clearly have been of significant help in obtaining the decree sought, and it is not easy to see why it was not sought either by mrs owens’ counsel or by the judge of first instance, who, as already noted above, found that the marriage had broken down and that mr owens was deluding himself if he thought otherwise. lord wilson also accepted that the affair in no way inhibited mrs owens’ ability to petition50 and the appropriateness of the ‘anodyne’ terms of the petition51 in accordance with practice, which as every practitioner knows is encouraged by the law society protocol and the resolution code of practice. the recorder, who initially conducted the case management hearing at the central london family court, had directed short witness statements from the parties52 to stand as their evidence in chief, and for some reason directed that no witnesses should be called except the parties themselves. it seems that, through her counsel, mrs owens agreed to that, although it would have been useful to have included the evidence both of f, the parties’ male friend who features in the restaurant incident already described above, and of others who might have detailed the disparaging comments made in front of third parties. this apparent restriction of evidence, together with the short hearing time which mrs owens also agreed to, is recorded by lord wilson as odd, on which he asks the question as to why mrs owens’ experienced advisers had allowed any of this, and answers it himself – the problem is the shortage of time in the family court, the settlement orientation of contemporary divorce as recently researched by trinder and sefton for the nuffield foundation in no contest: defended divorce in england and wales53, and ‘the expectations … that even when defended to the bitter end, almost every petition under the subsection will succeed… almost certainly culminating in the 49 paragraph 5, supreme court judgment. 50 paragraph 8, ibid. 51 paragraph 10, ibid. 52 paragraph 12, ibid 53 e j trinder and m sefton, www.nuffieldfoundation.org, 2018. 20 pronouncement of a decree’.54 his paragraph 17 sets out the court’s approach to defended divorce, which he indicates is standard, and he records that trinder and sefton discovered no other instance of a respondent succeeding in a defended divorce other than mr owens himself. lord wilson’s paragraph 18 sets out mr owens’ approach which it is clear to see did not fit at all with that of the courts as just described by lord wilson. he did admit some of the alleged examples of his behaviour but sought to put them in a different context, said some were exaggerated and that he could not remember others, but actually denied very few as such. lord wilson confirmed in his paragraphs 18 and 19 that mrs owens had duly amended her petition after the case management hearing, and at the substantive hearing, 10 days before the judge’s reserved judgment, she had ended up including 27 examples of the respondent’s behaviour but, at the judge’s invitation, her counsel elected to focus on only four – the four airport, restaurant, pub and housekeeper examples already mentioned above; so apart from her confirmation of the veracity of her witness statement the judge received no evidence of what had occurred in the marriage before 2013, although she did at one point state to the respondent husband’s counsel that her husband ‘had been making hurtful and disparaging remarks to her long before 2012’. in his paragraph 20 lord wilson summarises the judge’s ‘short judgment written on six pages’, pointing out that the judge ‘announced at the outset that the petition was hopeless’, although he conceded that ‘mr owens was “somewhat old-school” and ‘mrs owens was more sensitive than most wives’. lord wilson identified the somewhat overly dismissive nature of the judge’s initial list of deficiencies in mrs owens’ case, said three of the items on which her counsel had focused at his invitation were ‘isolated incidents’ (and did not even mention the fourth), added that these three examples ‘scarcely merited criticism of mr owens, and much the same could be said of the other 24 examples’. in his paragraphs 21 to 28 lord wilson then reviewed the relevant law, indicating that the supreme court ‘like the appellate committee of the house of lords that preceded it’had never ‘had occasion to consider what the law requires a petitioner to establish’ in a behaviour case, so that the courts relied on the cases on s 1(2) to ‘illumine’ their effect. to the cases already considered below he added pheasant v pheasant55 and thurlow v thurlow,56 explaining their impact on the facts, and the impact of changing social norms, such as that of the contemporary view of marriage as a partnership, 54 paragraphs 16 and 17 of the supreme court judgment. the subsection referred to is s1(2)(b) of the 1973 act. 55 [1972]fam 202. 56 [1976] fam 32. owens v owens: a most curious case the denning law journal 21 which was not the case at the time of the passage of the 1973 act, for which he relied, inter alia, on priday v priday,57 at the same time explaining that the behaviour in question did not have to be itself ‘unreasonable’ since such an interpretation was wrong, in that the sub-section refers to the unreasonableness of an expectation of continued life between the parties, not to the conduct causing this conclusion. in his paragraph 38 lord wilson therefore refers disapprovingly to the five occasions on which judge tolson qc refers to ‘unreasonable behaviour’, which caused lord wilson to ask himself whether the judge was looking for ‘behaviour objectively worse than the law requires’? – such as in his search for ‘beef’ in mrs owens’ allegations: was he there looking for behaviour for which he might blame mr owens? (contrary to the facts and decision in thurlow?58) or for gravity (contrary to the decision that this was not required in buffery?59) although he noted that the judge had given himself the correct self-direction as in livingstone-stallard.60 moving on to the court of appeal lord wilson also noted that lady justice hallett had picked up the same point as later elaborated by lady hale in her paragraph 50 of the supreme court judgment, to the effect that remarks which might not be taken amiss in a happy relationship can have a completely different impact in an unhappy one. lord wilson’s paragraph 41, however, concludes that judge tolson’s own conclusion that he found ‘no behaviour such that the wife cannot reasonably be expected to live with the husband’ and ‘the fact that she does not live with the husband has other causes’ meant that the judge might have been in error: but that mrs owens’ counsel never argued this before the court of appeal, they did not see fit to raise it of their own motion, ‘and that even after it was raised at the hearing in this court mr marshall [her counsel] did not squarely rely on it’. lord wilson continues in his paragraph 42: there is no doubt that the appeal of mrs owens generates uneasy feelings: an uneasy feeling that the procedure now conventionally adopted for the almost summary despatch of a defended suit for divorce which was said to depend on a remorseless course of authoritarian conduct and which was acknowledged to appear unconvincing if analysed in terms of a few individual incidents; an uneasy feeling that the judge’s finding that the three incidents that he analysed were isolated in circumstances in which he had not received oral evidence of so many other pleaded incidents; and an uneasy feeling that mrs owens had 57 [1970] 3 all er 554, disapproving the comment of cumming-bruce j at page 557 on the non-culpability of forced intercourse in a case where the intention was therapeutic. 58 n53. 59 n36. 60 n2. 22 significantly exaggerated her entire case in circumstances in which mr owens had not disputed much of what she said. at paragraph 46 lady hale took up her own perspective, stating (unlike judge tolson qc who said it was ‘not hard to decide’) ‘i have found this a very troubling case’ but instantly asserting that it was ‘not for us to change the law … our role is only to interpret and apply the law that parliament has given us.… lord wilson has explained very clearly what that law requires’. she went on in paragraph 48: ‘i have several misgivings about the trial judge’s judgment in this case.’ her first misgiving is his repeated incorrect use of the term ‘unreasonable behaviour … a deeply misleading shorthand for a very different concept. in particular it can lead to a search for “blame” which is not required’. her second misgiving, set out in her paragraph 49, is that ‘the judge appears … to have thought that the behaviour complained of had to be the cause of the breakdown of the marriage. that is simply not the law’. her third, in her paragraph 50, she says ‘is the most troubling of all. this was a case which depended upon the cumulative effect of a great many small incidents said to be of authoritarian, demeaning and humiliating conduct over a period of time…’. she then refers to the analogy with constructive dismissal in employment law already mentioned, and quotes langstaff j, president of the employment appeal tribunal in ukegheson v london borough of haringey:61 ‘the meaning that correspondence or observations have when they are directed from one person to another may often depend on the extent of the relationship between the two…’ and he goes on, in summary and in effect to say that looking at incidents in isolation does not tell the whole story. she adds at her paragraph 54, as there seems no option to return the case for rehearing since no one wants that, ‘i am therefore reluctantly persuaded that this appeal should be dismissed’. 6. conclusion while until the national emergency of the coronavirus crisis is past and the process through the post-transition period to the completion of the brexit experience is concluded, so that the eu impact on english family law is completely over,62 there may now be no particular urgency for the wide programme of family law 61 ukeat/0312/14/rn at paragraphs 30–31. 62 probably now unlikely to be effected before 2021 since the government will naturally have many more pressing priorities before december 2020. owens v owens: a most curious case the denning law journal 23 reform that is clearly required when time permits, since it is clear that immediate divorce is still available under s 1(2)(b) of the 1973 act as before. however, in due course the formal no fault pathway now enacted in the 2020 ststute will clearly need to be brought into force so as to bring english law into line with most other modern liberal democracies, not only in respect of no fault divorce but for reform also of financial provision63 following divorce, dissolution and annulment respectively of the various adult intimate relationships for which legislation has now provided in the variety of statutes passed in this respect between 2004 and 2013. 63 not least as upon finally leaving the eu in december 2020 (or in 2021 if delayed by other post-pandemic priorities) the united kingdom will no longer be subject, amongst other provisions, to the eu maintenance directive, nor to present provisions on divorce jurisdiction including the race to file first in england and wales or in another jurisdiction within the eu. factortame: does britannia still rule the waves? james hanlon* in the twenty years since the u.k. joined the european community we have become used to newspapers bemoaning the fact that the community (through the commission) was against our crisps, sausages, bathing water, noise levels and newspaper boys. all these actions we were told by the newspapers were attacks on our "sovereignty". sovereignty in this sense is taken to mean the supremacy of parliament. i that is that parliament has the unfettered right to make or repeal any domestic law. parliament has jurisdiction over the territory in its hands and presides over a system of laws and procedures which is free from outside interference. even when the u.k. entered into international treaties and has enacted statutes to implement treaty provisions, these statutes are regarded as in no way different from ordinary acts of parliament. 2 although the issues of sovereignty and the supremacy of parliament have been recurring features since our accession to the e.c. in 1973, r. v. secretary of state for transport, ex parte factortame3 brought them to the forefront of attention again. this article will attempt to trace the developments in these areas that culminated in the judgments in the factortame case. if we say that sovereignty means the ability to legislate independently of any other state, if it means that our domestic laws will prevail over all other external laws, then the u.k. long ago gave up some of its sovereignty. even before our membership of the e.c. we accepted limitations on our right to act or legislate in certain areas. one has only to think of the hague and geneva conventions , gatt, the united nations, nato and other international treaties. * school of law and international business, nene college, northampton. i. wade and bradley, constitutional and administrative law 10th ed. (1986), p. 65, describe the doctrine of sovereignty or legislative supremacy of parliament as consisting essentially of "a rule which governs the legal relationship between the courts and the legislature, namely that the courts are under a duty to apply the legislation made by parliament." 2. for a discussion of the general debate on sovereignty, see craig, "sovereignty of the united kingdom parliament after factortame", 11 yearbook of european law 1991, pp.221-255. 3. case 213/89 [1990] 1 e.c.r. 2433. [1990] 3 c.m.l.r. 1+375. 61 the denning law journal even before the u.k. joined the e.c. it was well established that community law was supreme when in conflict with national domestic law and that member states had abrogated a part of their sovereignty to the community. this was first established in van gend en loos4 where the european court of justice (e.c.j.) said that member states "have limited their sovereign rights, albeit within limited fields." in costa v. ened the court was asked if it could give a ruling in a situation where a national law seemed applicable in the particular case as against a community law. while the court would not rule on the compatibility of national law with community law, it did say that: ". . . transfer by the states from their domestic legal system to the community legal system of the rights and obligations arising under the treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the community cannot prevail. ' '6 this concept of the supremacy of community law was given further impetus in lnternationale handelsgesellschaft7 where the e.c.j. said: ". . . the validity of a community measure or its effect within a member state cannot be effected by allegations that it runs counter to . . . the principles of a national constitutional measure. "8 in simmentha/9 the court went even further and said: ". . . any national court must . . . apply community law in its entirety . and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the community rule. "10 in 1973 when the u.k. joined the e.c. the treaty of rome which it signed was incorporated into u.k. law by the european communities act 1972. section 2(1) of the act states that the principles established by the treaty "are without further enactment to be given legal effect" . section 2(4) provides that" any enactment passed or to be passed" must be construed subject to the foregoing. this gives rise to a few problems as to whether this section does give priority to e.c.law thereby limiting the sovereign rights of the u. k. the traditional view has been to treat section 2(4) as a rule of construction. it would seem so long as section 2(4) is applied as a rule 4. case 26/62 [1963] e.c.r. 1. 5. case 6/64 [1964] e.c.r. 585. 6. at p.594. 7. case 11/70 [1970) e.c.r. 1125. 8. at p.i134. 9. case 106/77 [1978] e.c.r. 629. 10. at p.644. 62 factortame: does britannia still rule the waves? of construction our courts would remain free to apply an english statute which was contrary to e.c. law and it is clear that parliament wished to breach its community obligations. this rule of construction was useful in so far as it enabled the u.k. courts to avoid any outright statement of the supremacy of community law. ii but it did lead to some initial confusion in the courts. in a number of cases the courts were prepared to give precedence to e.c. law over u.k. law if there was a conflict but in other cases they construed inconsistencies between e.c. law and u.k. law in favour of the latter. the first of these approaches can be seen as early as 1979 in macarthys ltd. v. smith. 12 this case broke new ground in that it was the first case to be given the "european view" . cummings-bruce and lawton l.j .j. citing costa and in particular the simmenthal case were prepared to give priority to european law. 13 lord denning mr preferred to see the case as one of interpretation or construction of section 2(4) and he interpreted the equal pay act 1970 to conform with the principle of equal pay for equal work as set out in article 119 e. c. 14 he said: "we are entitled to look to the treaty as an aid to its construction: and even more, not only as an aid but as an overriding force" .15 he was also prepared to say that if domestic legislation was inconsistent with e.c. legislation then "it is our bounden duty to give priority to community law." the house of lords continued with the rule of construction approach in garland v. british rail engineering ltd. 16 once again, the case involved a conflict between the equal pay act 1970 and article 119 e. c. in the earlier hearing of the case the courts had been prepared to construe section 6(4) of the act as allowing derogation from the principle of equal pay if the discriminatory provisions related to death or retirement. the plaintiff sought to rely on article 119 e.c. the house of lords said that section 6(4) must be construed with article 119. lord diplock said that national courts must construe domestic law to conform, "no matter how wide a departure from the prima facie meaning may be needed to achieve consistency." 17 in both the above cases there was no real difficulty in construing domestic law to conform to e. c. law. in these cases it appeared that the house of lords had managed to adopt a "rule of construction" approach to accommodate the idea of the supremacy of e.c. law with parliamentary sovereignty. but a quartet of cases that came before the house of lords threw doubt on this consensual approach. the first of these cases ii. collins european community law in the united kingdom 4th ed. (1990), p.135ff. for a discussion of this issue. . 12. [1979] 3 all e.r. 325. 13. at pp. 335. 14. at p.329. 15. ibid. 16. [1983] 2 a.c. 751. 17. at p.77l. 63 the denning law journal was duke v. gee reliance. is in the macarthys and garland cases there had been no great difficulty in construing domestic law in line with e.c. law. however, in duke the issue in question, section 6(4) of the sex discrimination act 1975, had been passed before the provision relied on by ms. duke, viz. the equal treatment directive of 1976.19 it was also clear that the act was not passed to give effect to the directive. in those circumstances lord templeman refused to construe section 6(4) of the domestic act to give effect to the directive. in a trenchant passage he said: "section 2(4) of the european communities act does not in my opinion enable or constrain a british court to distort the meaning of a british statute in order to enforce against an individual a community directive which has no direct effect between individuals.' '20 the house therefore rejected ms. duke's claims. thus there has arisen a distinction between domestic legislation passed to implement a directive and legislation which pre-dated the directive. in the former, the house of lords was prepared by use of the "rule of construction" under section 2(4) of the european communities act to give priority to e.c. law. in the latter, it considered that to give priority to e.c. law would require a distortion of a british statute which it was not prepared to do. in finnegan v. clowney youth training programme ltd. 21 the house was given an opportunity to reconsider its position. the issue was similar to that in duke, except that the relevant legislation was article 8(4) of the sex discrimination (northern ireland) order 1976. this was a parallel provision to section 6(4) of the sex discrimination act 1975 except that it had been passed after the equal treatment directive. also, in the case of johnston v. chief constable of the royal ulster constabulary22 the e. c.j. had ruled that the order should be interpreted in the light of the equal treatment directive. despite these distinctions the house of lords held there was no material distinction between the northern ireland order and the sex discrimination act. it said that the accident of timing of the order was irrelevant and in also ignoring the distinction in johnston it refused to give a purposive construction to the order. once again it said that national law not passed to implement community law would take priority over subsequent community legislation. however, in two cases the house was prepared to allow priority to community law passed before a piece of domestic legislation. the two cases also illustrate a striking departure from the normal approach of the british judiciary. the first of the cases 18. [1988] i all e.r. 626. 19. dir. 76/207 oj l39/40. 20. at p.636. 21. [1990] 2 all e.r. 546. 22. case 222/84 [1986] e.c.r. 1651. 64 factortame: does britannia still rule the waves? was pickstone v. freemans p.l.c.23 the equal pay act 1970 had been amended by statutory instrument in 1983 to comply with the equal pay directive.24 the 1983 amendments were less than clear and led lord oliver to observe that "the strict and literal construction of the section does indeed involve the conclusion that the regulations although purporting to give full effect to the united kingdom's obligations under article 119, were in fact in breach of those obligations. "25 the house examined the directive, and the e.c.j. decision which had led to the 1983 amendments and in an unprecedented step had consulted hansard to determine the motive for the national legislation. based on these examinations lord oliver was able to depart from the literal wording of the legislation. he said: " ... a construction which permits the section to operate as a proper fulfilment of the united kingdom's obligations under the treaty involves not so much doing violence to the language of a section as filling a gap by implication which arises, not from the words used, but from the manifest purpose of the act and the mischief it was intended to remedy. "26 lords keith, brandon and jauncey expressly concurred with lord oliver. remarkably, lord templeman, who had given the leading judgment in duke a year earlier, now said: ". . . i can see no difficulty in construing the regulations of 1983 in a way which gives effect to the declared intentions of the government ... and is consistent with the objectives of the e.c. treaty .... " this willingness to overrule a piece of domestic legislation was extended again in the case of litster v . forth dry dock. 27 the transfer of undertakings (protection of employment) regulations 1987 had been passed to implement the acquired rights directive.28 when, as in this case, there was a conflict between the words of the regulations and those of the directive, the house of lords was prepared to treat the words of the directive as overriding the words of the domestic regulations. lord keith said: ". . . the precedent established in pickstone. . . indicates that this is to be done by implying the words necessary to achieve that result" .29 23. [1989] a.c. 66. 24. dir. 75/117 oj l45119. 25. at p.127. 26. at p.125. 27. [1989] 1 all e.r. 1134. 28. dir. 77/187 oj l61127. 29. at p.1136. 65 the denning law journal lord oliver was prepared to add words to the regulations to enable the legislation to "fulfil the purpose for which they were made of giving effect to the provisions of the directive", and lord templeman was again also prepared to imply words into the regulations to enable them to comply with community obligations. the duke and finnegan cases have been criticised30 but any unfairness that was felt to be in these decisions has been addressed by a decision of the e.c.j. in case mar/easing s.a. v. la commerciallnternacional de alimentacion s.a.31 the case arose out of a conflict between the spanish civil code and an b.c. company law directive32 which was unimplemented in spain. in its decision the court broke new ground by holding: "it follows that in applying national law , whether the provisions pre-date or post-date the directive, the national court asked to interpret national law is bound to do so in every way possible in the light of the text and the aim of the directive to achieve the result envisaged by it and thus to comply with article 189(3) of the treaty. "33 the effects of this case have ramifications for the concept of sovereignty. although the e.c.j. did concede that directives should be followed only "so far as possible" bearing in mind the principles of legal certainty and non-retroactivity, it does now appear that the "rule of construction" approach has been severely circumscribed. 34 although questions of sovereignty and the supremacy of parliament have been a recurring feature since our accession in 1973 the factortame case brought them to the forefront of attention again. indeed, the judgment in the case was treated by some sections of the press as if 1066 had happened again. the times editorial of 26th july 1991 called it a "slap on the face for parliament". the facts of the case are well known. in an attempt to prevent "quota-hopping" by spanish fishermen operating behind nominally british companies, the u.k. government passed the merchant shipping act 1988 and a series of delegated regulations. the legislation set out residence and domicile conditions for fishing companies, the effect of which was to disqualify 95 spanish fishing boats from fishing from british ports. the companies sought interim relief by means of judicial review in the divisional court. the grounds on which they sought interim relief were that the act and regulations were contrary to articles 7, 52, 58 and 221 of the treaty and that interim relief was needed because of the irreparable damage that would be caused if the companies had to wait for the full trial to come before the court. in the divisional court, a brave neil u granted provisional relief. relying on simmenthal he said: 30. see docksey and fitzpatrick, "the duty of national courts to interpret provisions of national law in accordance with community law", i.l.j. (i992) 21, p.ll3. 31. case c-106/89 [1990] e.c.r. 4135. 32. dir. 68/151 oj l65. 33. at p.4159. 34. see saunders, "marleasing: a fatal blow to the rule of construction" , euro. bus. law rev. dec. 1992, p.339. 66 factortame: does britannia still rule the waves? "the high court now has a duty to take account of and give effect to e.c. law and where there is a conflict, to prefer community law to national law. " on appeal by the u.k. government to the court of appeal the interim relief was set aside on the grounds that under the british constitution the courts have neither the power to suspend the application of an act of parliament nor to grant an injunction against the crown (i. e., the government). 35 when the case was further appealed to the house of lords, lord bridge held that there is a presumption that an act of parliament was compatible with community law unless and until it was decided otherwise, but that nevertheless, by section 21 of the crown proceedings act 1947 there was no jurisdiction to grant interim relief. however, the house made an article 177 reference to the e.c.j. which asked, inter alia, whether e.c. law empowers or imposes an obligation on a national court to grant interim relief in a situation where a preliminary reference has been made to the e.c.j. the reply from the e. c.j. should not have come as a total surprise. anthony bradley, editor of public law, commented that although the outcome had been foreshadowed, "it was the clearest case of an act of parliament being held irreconcilable with community law." the court replied in the affirmative basing its judgment on the twin pillars of article 5 and its previous and recent decision in simmenthal. 36 the court stressed the importance of ensuring that direct effect was a matter of substance, not form and further held: ". . . the full effectiveness of community law would be. . . impaired if a rule of national law could prevent a national court . . . from granting provisional relief . . . it follows that a court which . . . would grant interim relief, if it were not for a rule of national law, is obliged to set aside that rule.' '37 the factortame decisions have obvious and perhaps damaging ramifications for the british fishing industry, 38 but the major area of interest is the effect on british constitutional law. prior to factortame it could be argued that u.k. courts had not unequivocally accepted the supremacy of e.c. law. we have seen that the twin conflicting claims of this supremacy and the british constitutional principle of parliamentary sovereignty have been accommodated by the device of the "rule of construction". but now factortame makes it clear that a national court is under a 35. see ross, "refining effective enjoyment", (1990) is e.l. rev. 476. 36. see barav, "enforcement of community rights in the national courts", [1989] 26 c.m.l. rev. 369 and gravells, "disapplying an act of parliament pending a preliminary ruling: constitutional enormity or community law right", [1989], p. l. 568. 37. at para. 21 of judgment. 38. see churchill, "quota hopping: the common fisheries policy wrong-footed?", 27 em.l. rev. (1990) 209 and case note in 29 em.l. rev. (1992) 405. 67 the denning law journal community law obligation to give effective protection to directly effective rights, and this will be so even in the face of conflicting domestic legislation. the source of this obligation is article 5 e.c. this reflects a growing reliance by the e. c. j. on the "gap filling" properties of this article. article 5 has become the "tool" by which the e.c.j. has developed general principles of community law to ensure the effective judicial protection of individual rights. the e.c.j. went on to say that the duty upon national courts "cannot fail to include the provision of interim relief". 39 but the court did not go on to say on what basis such interim relief was to be awarded. this is still to be a matter for applying national criteria as set out in american cyanamid v. ethicon ltd.4o the crucial point is that interim relief should be available and if necessary the national courts would have to invent a system of reliefs. what lessons does the factortame decision hold for u.k. law? it can certainly be concluded that any lingering doubts about the supremacy of community law over domestic law have been laid to rest. lord bridge in factortame expressed it thus: "under the terms of the european communities act 1972 it has always been clear that it was the duty of a u.k. court when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of e.c. law .... thus ... to insist that national courts must not be inhibited by rules of national law from granting interim relief. . . is no more than a logical recognition of that supremacy. "41 the only uncertainty left in this area is the question of what the position would be if an act expressly said it was to take effect notwithstanding the european communities act. or if some equally clear form of words was used? it may be well that the english courts would have to follow the domestic legislation. but the supremacy ofe.c.law was well established in the jurisdiction of the court ofjustice long before the united kingdom joined the community. so, whatever limitations to its sovereignty parliament accepted when it enacted the european communities act 1972 was entirely voluntary. for parliament to change its stance to such an extent would require a renegotiation of the treaty of rome. this is an unlikely scenario. factortame is important on a wider basis. it, together with the emmott, francovich and zuckerfabrik:12cases represent a new development in community law. up until recently priority had been given to the establishment of a community legal order, separate from national law and giving rights which individuals could plead in their 39. at p.2474. 40. [1977] a. c. 396. see remarks made by lord goff in the house of lords as to the appropriateness of this approach: (1990) 3 c.m.l.r. 375, at p.385 and algazy, "the crown, interim relief and e.c. law", 141 n.l.i. (1991), at p.1303. 41. (1990) 3 c.m.l.r. 375, at p.380. 42.casec-208/90 [1991] e.c.r.i-4869;casesc-6/90&c-9/90 [1993] 2c.m.l.r.66;casesc-143/88 & c-92/89 [1991] e.c.r. 1-415. 68 factortame: does britannia still rule the waves? national courts. it was this concept of the direct effect of community law that the court fought to establish. this battle appears to be won! all the national courts have accepted the supremacy of the community legal order. what factartame and the other cases illustrate is a move by the e.c.j. towards the provision of effective judicial remedies. it is now the application ofe.c.law which has become the focus of attention. the decisions can also be seen as representing a major shift towards a partnership ofe.c. law and national legal systems. this can only strengthen the remedies available to individuals and will lead to the availability ofthese remedies within an e. c. context. certainly, the house of lords appears to have accepted that a purposive approach, even overruling national legislation , is an essential and integral part of the development of e.c. law. 69 the crown and statutes p. jackson* in tamlin v. hannaford' denning lj, as he then was, said: "it is, of course, a settled rule that the crown is not bound by a statute unless there can be gathered from it an intention that the crown should be bound." as master of the rolls he again referred to the rule when considering whether the crown needed to obtain planning permission to change the use of certain land: "looking at the whole of the town and country planning act, 1947, i am satisfied that the crown does not need to get planning permission in respect of its own interest in crown lands. the reason why it is exempt is, not by virtue of any provision in the act itself, but by reason of the general principle that the crown is not bound by an act unless it is expressly or impliedly included. "2 the existence of the rule may well be settled but its scope remains open to argument, as evidenced by the recent decision of the house of lords on appeal from scotland: lord advocate v. dumbartond. c..3 nor is it always clear whether a particular body is entitled to claim to be part of "the crown" for the purpose of immunity from legislation or in order to be able to claim the benefit of statutory provisions such as section 21 of the crown proceedings act 1947: british medical association v. greater glasgow health board.4 formulations of a rule reflecting the privileged position of the crown date back to the mid-fifteenth century.5 in willion v. berkley,6 a case where the crown was • professor of law, university of reading. 1. [1950] 1 k.b.18,22. 2. [1963] 2 q.b. 317,325. 3. [1989] 3 w.l.r. 1346. 4. [1989] a.c. 1211. 5. see h. street, governmental liability (1953), pp.143-144. in lord advocate v. dumbarton d.c. [1989] 3 w. l. r. 1346, 1351 lord keith of kinkel cites the formulation roy n 'est lie per ascrln scawte, si il ne soi t expressement nosme (jenk. cent. 307) which is adopted in broom, legal maxims, p. 38. jenkins, a contemporary of coke, wrote his centuries "amidst the sound of drums and trumpets ... broken with old age and confinement in prison": j.w. wallace, the reporters 4th ed. (1882), p.70. 6. willian v. berkley (1561) plowden 223. 45 the denning law journal held to be bound by the statute de donis conditionalibus, counsel on the losing side explained the rule on the ground that the king, when assenting to an act, does not intend to prejudice himself or to bar himself of his liberty and privilege but he assents that it shall be a law among his subjects. that, as wronesley j observed in a ttorney general v. hancock,? "would, perhaps, nowadays be regarded as rather an overstatement of the position of the crown with regard to acts of parliament." it was not necessarily so obviously an over statement at a time when the crown was not in any event liable to be sued in its own courts8 and the range oflegislation was far more restricted than in the last hundred years. in more modern terminology the rule can best be described as reflecting a presumed intention of parliament or as "only an instance of a mere [sic] general rule. the doctrine that the words of an instrument shall be taken most strictly against the party employing them does not apply to the crown. such a grant is construed most strictly against the grantee and most beneficially for the crown ... "9 thus the rule should be regarded as one of construction rather than a prerogative of the crown,1o a view endorsed by the house of lords in lord advocate v. dumbarton d. c. 11in the following pages it is intended to discuss whether the rule or presumption applies to all statutes; the meaning forthe purpose of the rule of "crown"; the right of the crown to take the benefit of an act of parliament although not named therein 12 and finally to criticise the current position. 1. statutes within the rule of construction dicta in old cases and statements in writers such as blackstone and chitty suggested that the rule of construction in favour of the crown applied to statutes which would divest or abridge the king of "his rights or interests"13 or "his prerogatives, his interests or his remedies. "14 in a further category of statutes there was a presumption that the king was bound even by implication, namely statutes "expressly made for the preservation of public rights and the suppression of public 7. [1940)1 k.b. 427,431. 8. see o. hood phillips, consticutional and administralive law 7th ed. (1987), p.702. 9. h.v. evatt, the royal prerogative (1987), pa2. for a discussion of the privileged position of the crown in relation to deeds, see lonsdale (earl of) v. allorney-genera/ [1981] i w.l.r. 887. the reversal of the normal presumption was referred to but in the absence of an ambiguity its applicability did not have to be decided at first instance in inglewood investment v. forestry commission [1988)1 w.l.r. 959; affirmed [1988] i w.l.r. 1278. 10.p.w. hogg, liability of the crown (1971), pp.166-167. the crown proceedings act 1947,s.40(2)(f) cautiously refers to "any rules of evidence or any presumption relating to the extent to which the crown is bound by any act of parliament." 11. [i 989j3 w.l.r. 1346, 1360per lord keith of kinkel, approving a dictum of diplock lj in british broadcasting corporation v.johns [1965) ch. 32, 78-79, and explaining dicta in madras electric supply corporation ltd. v. boarland [1955) a.c. 667. see roberts v. ahern (1904) i c.l.r. 406, 417 per griffith cj; minister for works (w.a.) v. gu/son (1944) 69 c.l.r. 338, 347 per latham cj; commonwealth v. bogle (1953) 89 c.l.r. 229,259 per fullager j: "[ a) pure question of construction." 12. blackstone, comm., i,262; craies on statute law 7th ed. (1971), pa38. 13. blackstone, lac. cit. 14. chitty, prerogatives of the crown (1820), p.383. 46 the crown and statutes wrongs [provided that they did] not interfere with the established rights of the crown."15 chitty states that to the' general rule "there is a most important exception, namely, that the king is impliedly bound by statutes passed for the public good; the relief of the poor; the general advancement of learning, religion and justice; or to prevent fraud, injury or wrong ... and the crown, though not named, is bound by the general words of statutes which tend to perform the will of a founder or donor."16 the scope of the rule favouring the crown in modern law fell to be considered by the house of lords in lord advocate v. dumbarton d.c.17 since, although an appeal from scotland, their lordships held that the law of scotland on the question must agree with the law of england which had therefore to be determined in the light of the modern cases. the ministry of defence had decided to erect an improved security fence around the submarine base at faslane, dumbartonshire. the execution of the work which was undertaken by a firm of contractors, tarmac construction ltd. involved erecting various temporary buildings on part of a road adjoining the base. strathclyde regional council claimed that as roads authority for the area it was entitled under the roads (scotland) act 1984 to call for the removal of the various structures connected with the fencing work. the dumbarton district council, as local planning authority, served on the property services agency, through which the ministry of defence was acting, an enforcement notice under section 84 of the town and country planning (scotland) act 1972 requiring the restoration of the road to its former unrestricted use as a public highway. the ministry of defence claimed that neither statute bound the crown and the lord advocate sought declarators to that effect in the court of session. at first instance lord cullen found for the crown. the first division, however, held that the relevant legislation did bind the crown. from that decision the lord advocate appealed to the house of lords. (by the time the appeal was heard the construction work had been completed so that, as lord keith pointed out,18the question in a sense had become academic. nonetheless it was appropriate that the house should decide the issue because of its general importance and the matter of costs remained a live one.)19 in allowing the crown's appeal lord keith recognised that prior to the union of 1707 scots law knew no presumption that the crown was not bound by an act of 15. blackstone, supra n. 12. 16. ibid., citing the magdalen college case (16]5) ] 1 co.rep.66b. see too craies, p.439 ec seq.; broom, legal maxims, pp.39-40. 17. [1989] 3 w.l.r. 1346. 18. [1989] 3 w.l.r. 1346, 1351. 19. simi]arly bn'cish medical associacion v. greacer glasgow healch board []989] a. c. 121]. for an even more striking example of the role of costs in giving jurisdiction to appellate courts, see mahon v. air new zealand [1984] a.c. 808. 47 the denning law journal parliament.2o he traced the adoption of the english doctrine through the court of exchequer in a series of cases dealing with taxation and then referred to two cases dealing with the powers oflocal authorities to regulate building operations. in the second of these cases the lord president dunedin said: "while i do not doubt that there are certain provisions by which the crown never would be bound unless that were clearly expressed such, for instance, as the provisions of a taxing statute, or certain enactments with penal clauses adjected, as, for example, certain provisions of the motor car act, and so on yet, when you corne to a set of provisions in a statute having for its object the benefit of the public generally, there is not an antecedent unlikelihood that the crown will consent to be bound, and this, i think, would be so in the case of regulations which are meant to apply to all the land in a city, and where the crown's property is not property held jure coronae, but has been acquired from a subject-superior for the use of one of the public departments. "21 there was, lord keith continued, no rational ground on which a different approach to the construction of a statute for the purpose of ascertaining whether it bound the crown should be adopted in scotland and england. therefore it was appropriate to consider the modern english cases. "the law has developed to a point where it is not helpful to refer to writings of greater or less antiquity which discuss the prerogatives of the crown. "22 lord keith examined the english cases since gorton local board v. prison commissioners23 and concluded that they established that the crown is not bound by a statute unless by express words or necessary implication.24 nor will the courts easily find that a statute applies to the crown by implication. in province of bombay v. municipal corporation of the city of bombay25 lord du parcq, delivering the opinion of the privy council, suggested that a necessary implication that the crown was to be bound would arise only where it is apparent from the terms of a statute that its beneficent purpose would otherwise be wholly 20. see further j.d.b. mitchell, "the royal prerogative in modem scots law", [1957] p.l. 304; }.d.b. mitchell, constillltianal law 2nd ed. (1968), p.183. 21. magistraces of edinburgh v. lord advocate 1912 s.c. 1985, 1090-1, citing with approval a similar dictum of lord kyllachy in somerville v. lord advocace (1893) 20 r.1050, 1064-5. 22. (1989] 3 w.l.r. 1346, 1354. 23.[1904] 2 k.b. 164, 165n. (gorton had been decided in 1887 but reported as a note to cooper v. hawkins). 24. hornsey v.d.c. v. hennell (1902] 2 k.b. 73, 80 per lord alverstone cj; actorney-general v. hancock [194011 k.b. 427, 439 per wrottesley j; accorney-general v. randall [1944] i k.b. 709,712 per morton j;miniscry of agricullllre, fisheries and foodv.jenkins (1963] 2 q.b. 317, 325 per denning lj; bricish broadcascing corporacian v.johns [1965] ch. 32, 78-79 per diplock lj. 25. (1947] a.c. 58. 48 the crown and statutes frustrated. nor would an express saving clause exempting the crown from particular provisions of an act be sufficient to rebut the application of the normal rule of construction to other sections of the act. such saving provisions were to be regarded as being inserted ex abundanti cautela.26 lord du parcq also indicated that he did not regard the dictum of lord president dunedin27 as representing english law on crown immunity. counsel for the local authorities attempted to limit the scope of the rule of construction by arguing that it only applied to cases where the crown's lawful freedom of action would be constrained. thus if it were accepted that the crown had no right to erect structures on a highway any legislation relating to obstructions on highways should be interpreted in its application to the crown without resort to any presumption of non-application. lord keith emphasised the practical difficulties of such an approach. the crown in some circumstances might be entitled, like any private owner of premises, to obstruct the highway. 28 it would be absurd to suggest that in such circumstances a statute did not bind the crown but when the crown was acting without any right the statute did bind: "it is preferable, in my view, to stick to the simple rule that the crown is not bound by any statutory provision unless there can somehow be gathered from the terms of the relevant act an intention to that effect. the crown can be bound only by express words or necessary implication. the modern authorities do not, in my opinion, require that any gloss should be placed upon that formulation of the principle. however, as the very nature of these appeals demonstrates, it is most desirable that acts of parliament should always state explicitly whether or not the crown is intended to be bound by any, and if so what, of their provisions. "29 lord keith then considered the provisions of the relevant legislation and concluded that neither act bound the crown expressly or by necessary implication. of the alleged exceptions to the general presumption in favour of the crown which depend on the authority of coke's report of the magdalen college case30 that of statutes passed for the public good has been examined in a number of modern cases and found wanting. in territorial auxiliary forces association of the county of london v. nichols31 the court of appeal held that the rent acts did not bind the crown. scott lj said, in reference to the argument that statutes passed for the 26. [1947] a.c. 58,65. see also homsey v.d.c. v. hennell [1902] 2 k.b. 73,80, per lord alverstone cj· 27. supra n.21. 28. the crown did not in these proceedings rely on any prerogative right for the defence of the realm: [1989] 2 w.l.r. 1346, 1362. 29. [1989] 3 w.l.r. 1346,1366. 30. (1615) ii co.rep.66b; supra p.47; craies, supra n.12, pp.439-444. 31. [1949] 1 k.b. 35. 49 the denning law journal public good were to bind the crown: "possibly the words had a meaning narrower than would attach to them today. it is difficult to suppose at the present day that any public statute is not in theory at least directed to the welfare of the public ... if the ancient rule ever had in fact the wide meaning claimed for it we can only conclude that it has been 'eaten away' by exceptions."32 similarly in province of bombay v. municipal corporation of the city of bombay33 lord du parcq expressed the view that the contention that statutes passed for the public good impliedly bind the crown "cannot now be regarded as sound except in a strictly limited sense". 34in that case the privy council held that the crown could refuse to allow the city authority to lay drains through crown property despite a provision in the city of bombay municipal act 1882 which gave the authority power to lay drains through or under "any street ... and into through or under any land whatsoever within the city." in department of transport v. egorofp5 the court of appeal refused to hold that the housing act 1961, sections 32 and 33, which implied certain obligations into leases, applied to leases granted by the crown. counsel conceded that the act did not apply to the crown expressly or by necessary implication. he argued, however, that it fell within the magdalen college case as a statute made to suppress a wrong. in rejecting that argument parker lj said that the classification of statutes in the magdalen college case was too wide to be of general assistance and had been wholly disposed of as a reliable guide by the province of bombay case. coke's dicta in the magdalen college case have been relied on in a number of old cases in which the crown has been held to be bound by statute36 but it is difficult to believe that at the present time the fact that a statute fell within one of the categories he enumerated would be more than an element to be considered in construing the true meaning of the act. 2. the meaning of "the crown" once it had been held that a statute does not bind the crown, "this question then becomes important who and what are covered by the shield of the crown?"37 the meaning of the term "the crown" may arise in various contexts, 32. at p.45. 33. [1947] a.c. 58. 34. at pp.62-63; cited, lord advocare v. dumbarron d.c. [1989] 3 w.l.r. 1346, 1356. 35. the times, 5 may, 1986; [1986] 1 e.g.l.r. 89; [1986] 18 h.l.r. 326. 36. craies, supra n.12, pp.439-444. craies comments on these cases (at p.443): "they are scarcely sufficient in number or variety to justify the very general adoption of the propositions propounded by coke in the magdalen college case with regard to the kind of statutes by which the crown is bound without being named." 37. w. harrison moore, "liability for acts of public servants", (1907) 23 l. q.r. 12, 16. 50 the crown and statutes whether immunity from statutory provisions, immunity from judicial proceedings,38the application of provisions of the crown proceedings act 1947,39or in situations where the divisibility of the crown is an issue40(which in federations such as australia may well be involved in disputes over the scope of "crown" immunity from legislation).41 at one extreme there can be little doubt that "the crown" in the context of immunity from a statute includes the ministers of the crown, the departments of state and the civil servants employed in those departments.42 in gorton local board v. prison commissioners43 the divisional court, having held that the public health acts did not bind the crown, concluded without further ado that they did not apply to land on which the prison commissioners wished to erect houses for prison warders. the land in the words of day j was "state property ... provided by the crown for the purposes of the crown ... occupied by servants of the crown." similarly the right of a local authority under the public health act 1875, section 150, to recover from adjoining landowners the cost of paving a street was not enforceable against the commanding officer of premises used for the purposes of the 1st volunteer battalion (duke of cambridge's own) middlesex regiment: homsey v.d.c. v. hennell.44 in attorney-general v. hancock45 wrottesley j held that the courts (emergency powers) act 1939 which forbade the bringing of actions to enforce judgments without the leave of the court did not bind the crown. the action in question related to a debt due to the crown (arrears of income tax) and hence clearly, if the act did not bind the crown, could be brought without leave. similarly in attorney-general v. randall,46 once the court of appeal had held that the debtors act 1869did not bind the crown, there could be no doubt that h.m. customs and excise could claim the advantage of that immunity to arrest the debtor, contrary to the terms of the act. again in ministry of agriculture, fisheries and food v. jenkins47 the validity of a notice given to a tenant under the agricultural holdings act 1948 depended on whether the landlord required the land for non-agricultural use for which planning permission was not required. the court of appeal held that the relevant planning legislation (the town and country planning act 1947)did not bind the crown. the landlord as minister of the crown clearly fell within that crown immunity. the shield covers not merely ministers and departments but any servant of the crown: for 38. mel/enger v. new brunswick developmenc corporation [1971] i w.l.r. 604. 39. british medical association v. greater glasgow health board [1989] a.c. 1211. 40. r. v. secretary of state for foreign and commonwealth affairs, ex parte indian association of alberta [1982] q.b. 892. 41. e.g., minister for works (w.a.) v. gulson (1944) 69 c.l.r. 338; commonwealth of australia v. bogle (1953) 89 c.l.r. 229; p.w. hogg, liability of the crown (1971) 188 et seq. 42. cf town investments v. departmenc of the environmenc [1978] a.c. 359. 43. [1904] 2 k.b. 1650. 44. [1902] 2 k.b. 73. 45. [1940] i k.b. 427. 46. [1944] i k.b. 709. 47. (1963] 2 q.b. 317. 51 the denning law journal example a civilian driver employed by the secretary of state for war was not liable to prosecution for exceeding the speed limit once it had been established that the statute did not bind the crown: cooper v. hawkins.48 difficult questions may, however, arise, for example, where duties are undertaken by independent or semi-independent bodies, whether incorporated or not, or by independent contractors. while each case must be decided on its facts some general principles can be drawn from the cases. first, in determining whether a person or body is "covered by the shield of the crown" great weight is to be attached to the degree of control which the crown through its ministers can exercise over the performance of the relevant duties.49 secondly, immunity is likely to extend to those in consimili casu with crown servants, discharging duties of a public nature connected with the crown, for example the administration of justice. 50 the dividing line between servants of the crown and those in consimili casu may be fine and it is of no matter whether, for example, a volunteer regiment and its officers are exempt from a public health act because they are crown servants or in consimili casu therewith. thirdly, as denning lj pointed out in t amlin v. hannaford, 51 bodies carrying out commercial activities are unlikely to be regarded as part of the crown: thus the rent acts were held in tamlin to bind the british transport commission although they had earlier been held not to bind the territorial forces association.52 while, however, it may be relatively easy to distinguish commercial activities from those traditionally undertaken by the state, there is room for argument about the status of public bodies undertaking activities which formerly did not fall within the sphere of the crown service, for example in the field of broadcasting or health. in british broadcasting corporation v. johns53 the court of appeal recognised that the scope of crown services and activities could vary from time to time. there was no inherent reason why broadcasting should not be a crown activity and broadcasting bodies part of the crown. but the b. b. c. had been so clearly and deliberately created as an independent body that it could not claim the benefit of crown immunity from taxing statutes. the court contrasted broadcasting with the provision of health services where the legislative framework and degree of ministerial control made it appropriate to regard the activities of the national health service as a service of the crown: pfizer corporation v. ministry of health. 54 it does not, however, necessarily follow that a body providing crown services or occupying land for crown services is part of the crown55 so that it can claim immunity from legislation or the benefit of section 21 48. [1904] 2 k.b. 164. 49. bank voor handel en scheepvaart n. v. v. administrator of hungarian property [i954] a.e. 584. 50. mersey docks and harbour board v. cameron (1865) ii h.l.e. 443; coomber v. berkshirejusrices (1893) 9 app.cas 61. 51. [1950] i k.b. 18. 52. territon'al auxiliary forces association of the county of london v. nichols [1949] 1 k.b. 35. 53. [1965] ch. 62. 54. [1964] ch. 614. 55. nottingham area no. j hospital management committee v. owen [1958] 1 q.b. 50. 52 the crown and statutes of the crown proceedings act 1947 which prevents the granting of injunctions "in any proceedings against the crown." in british medical association v. greater glasgow health board56 the house of lords held that the health board was not entitled to immunity from interdict proceedings by virtue of that section because such proceedings were not proceedings against the crown. the relevant legislation creating the predecessors of health boards had made them liable to be sued in their own names. that legislation ante-dated the crown proceedings act 1947 which was an act intended to make it easier rather than more difficult to sue the crown. in the view of lord jauncey, who delivered the only speech, there was nothing in section 21 to show that it was intended to take away existing rights. lord jauncey found support also in section 17(3) which he thought showed that parliament had in mind government departments and not bodies such as those running the national health service. against this background it is interesting to speculate whether in lord advocate v. dumbarton d.c .. 57 tarmac construction, the independent company which carried out the work, could have relied on crown immunity had the issue been explicitly rajsed as, unfortunately, it was not before the house of lords. no doubt because the matter had by the time of the appeal become academic it was not thought worthwhile to pursue a topic subsidiary to the main issue of the position of the crown. some support for the view that tarmac construction could have claimed crown immunity is found in campbell a.g. (arcam) ltd. v. worcestershire e.c ..58 land had been requisitioned by the war office during the second world war. it was then occupied by shell-mex in order to provide petrol supplies for the army. in the court of appeal only ungoed thomas j considered the question and he concluded that the company was acting as agent of the crown and hence entitled to the immunity from the restriction of ribbon development act 1935 which, it was agreed, was possessed by the war office. it might be arguable that it is easier to establish a right to shelter behind the shield of crown immunity when carrying out work on land occupied by the crown than on facts such as in the dumbarcon d.c. case. the problem has arisen in two australian cases. in roberts v. ahern59 the high court held that the police offences act 1890, section 5 of which made it an offence to empty cesspits or cart nightsoil without a licence, did not bind the crown. it then went on to hold that an employee of an independent contractor employed by the crown to remove nightsoil from crown premises could not be prosecuted for not having obtained the necessary licence. in commonwealth of australia v. bogle,60 however, roberts v. ahern was regarded as "an extreme application" of the law to the facts. in bogle the running of hostels for immigrants had been entrusted 56. [1989j a.c. 1211. 57. [1989j 3 w.l.r. 1346. 58. (1963) 61 l.g.r. 371. 59. (1904) i c.l.r. 406. 60. (1953) 89 c.l.r. 229. 53 the denning law journal by the government to a company of which all the incorporators were civil servants. the high court held that the company could not rely on crown immunity to claim exemption from the prices regulation act 1948-1951 (vict.). it was "simply a company formed in the ordinary way ... and functioning as such within the legal system of the state."61 so far as can be acertained from the report of the dumbarton d. c. case the same is true of tarmac construction. where the crown lets land to a tenant he would not normally be able to claim crown immunity: ministry of agriculture, fisheries and food v. jenkins. 62even in the absence of an express statutory provision as in that case, it is difficult to see how a tenant could claim to be a crown servant or in consimili casu to a crown servant. but if the crown required work to be undertaken for it as in the campbell a. g. (arcam) ltd. case and granted a lease to the firm undertaking the work for it, there seems no reason why the firm should not be entitled to crown immunity. support for this view can be derived from nouingham area no. 1 hospital management commiuee v. owen63 where the divisional court, in determining the scope of section 106 of the public health act 1936 which referred to premises "occupied for the public service of the crown", distinguished the purpose of the occupation from the status of the occupier. the question is occupation for crown service or not; the title of the occupier is irrelevant. an unusual claim to invoke the immunity of the crown from planning legislation was made in spook erection ltd. v. secretary of state for the environment. 64the appellant company, as the owner of a market franchise originating in a grant of charles i, claimed to be entitled, like the crown, to immunity from the town and country planning acts 1947 and 1971. the court of appeal held, however, that a franchise, once granted, is a private right. the holder is not acting in any sense on behalf of the crown. 3. the right of the crown to take the benefit of a statute section 31(1) of the crown proceedings act 1947 provides that nothing in that act shall "prejudice the right of the crown to take advantage of the provisions of an act of parliament although not named therein." the existence of this right is attested to by blackstone and chitty.65 in cayzer irvine & co. v. board of trade66 scrutton lj referred to the right but refrained from expressing any concluding view, while making typically trenchant comments on the alleged authorities cited in its support: "a passage in an unsuccessful argument of a law officer which was not even relevant to the case before the court, but which has been taken out by a text 61. at p.259, per fullager j. 62. [1963] 2 q.b. 317; cf. retaruke timbers co. ltd. v. rodney c.g. [1984j 2 n.z.l.r. 129. 63. [1958] i q.b. 50. 64. [1989j q.b. 300. 65. supra n.12; hogg, supra n.io, p.180 et seq.; craies, supra n.12, p.438, et seq. 66. [1927j i k.b. 269, 294. see also nisbet shipping co. ltd. v. r. [1955j i w.l.r. 1031, 1035. 54 the crown and statutes writer and repeated for centuries until it was believed that it must have some foundation67 ... and possibly a passage in 7 rep.32a,68 which is not the report of a case decided in the house of lords, but the case of a private conference between the law officers and the chief justices of the stuart kings in a case in which the parties, the subjects affected by the decision which was given against them, were not present and were not heard." sir ivor jennings commented that the case showed "upon what a slender basis of precedent rest some of the most familiar of our text book maxims."69 rather disappointingly in re cushla 70where the crown sought the benefit of section 31 of the bankruptcy act 1914 vinelott j was able to find for the crown on the construction of the section without having to resort to this rule. 4. criticism of the present law the presumption in favour of the immunity of the crown as laid down in modem cases is wider than anything claimed by the old authorities. to show, in the absence of express words, th~t a statute binds by necessary implication it is necessary, according to the privy council in the province of bombay case,71 to demonstrate that otherwise the effect of the statute would be wholly frustrated. as parliament increasingly legislates "for the public good" in the sense of laying down standards of public hygiene, conditions of employment, restrictions on pollution, it is difficult to see why the application of these standards to hospitals or prisons, for example, should depend on a rule of construction which itself depends on whether a particular activity running a hospital is a crown service or not. the present position is clearly convenient for the executive. legislation does not normally affect it unless by express provision for example the equal pay act 1970, section 1(8). were the rule of construction otherwise it would be necessary to seek and justify express exemption from legislation. as it is, the freedom of the executive is maintained until a particular case, such as cooper v. hawkins,72 exposes the absurdity of the crown's immunity or political pressure finally secures the extension, for example, to hospital kitchens, of the legislation which for years has applied to commercial undertakings: national health service (amendment) act 1986. 67. scrutton lj is referring to remarks of counsel in the magdalen college case (1615) ii co.rep.66b. 68. the case of a fine levied by rhe king tenanr in tail ere. (1605). this report considered whetherthe king "in his natural capacity as an englishman, not in his public and royal capacity", could take advantage of de donis to bar an entail. coke thought he could: "it would be hard that the king ... should be in a worse condition than if he had not been king." 69. (1927) 43 l.q.r. 157. 70. [1979] 3 all e.r. 415. 71. [1947] a.c. 58. 72. [1904] 2 k.b. 164.the result of the case was the motor car act 1903,s.16. the current provision, subjecting crown servants to road traffic legislation, is section 183, road traffic act 1988. 55 the denning law journal if the executive has no reason to wish to reverse the present presumption it is at least open to the courts to be more willing to find "the necessary implication" in the absence of express words. a reluctance to do so in the case of criminal liability is perhaps explicable and justifiable as the high court of australia suggested in cain v. doyle.73 but in reality there is nothing absurd in the crown being prosecuted in its own courts in the twentieth century. certainly no one would dispute that criminal liability can be expressly imposed on the crown in the form of government departments or civil servants. in other areas, however, the courts could well adopt a more liberal approach. so far the only class of case where they have shown any willingness to construe statutes to the prejudice of the crown is where a statute imposes conditions or restrictions on the exercise of a prerogative power: attorney-general v. de keyser's royal hotel;74 manitoba fisheries ltd. v. the queen.75 both cases illustrate that even the deference shown to the crown may give way to the respect of the common law for property rights. the right of the crown to claim the benefit of legislation not named in it has been little invoked in modern times. its apparent unfairness, under which the crown might invoke a statute in its favour while denying that it was bound by the same statute, would disappear if the presumption of construction in favour of the crown were reversed. until that time it will remain as one of the more curious consequences of the privileged position the crown still holds in the common law. a scots lawyer might wish to end with a rather different criticism. granted that the law on statutory interpretation should be the same in england and scotland, as lord keith convincingly argued, could not that law be scots law. at least might not its merits be examined before being abandoned. to some lord advocate v. dumbarton d. c. 76 might seem another example of the "pretentions of english law as 'imperial law' ."77 73. (1946) 72 c.l.r. 409. on this ground the decision in cooper v. hawkins [1904] 2 k.b. 164 can be defended. 74. [1920j a.c. 508; hogg, supra n.lo, 171. 75. [1978j 88 d.l.r. (3d) 462. 76. [1989j 3 w.l.r. 1346. 77. sir thomas b. smith. stair memorial encyclopaedia, vol. v, p.379. 56 clameur de haro sir peter crill* the channel islands were once part of the duchy of normandy and a residual amount of their common law derives from that connection. among the surviving relics of their norman past is the action known as the clameur de haro, which, to a casual observer, may seem to be no more than a tenuous link with the islands' past. it is in fact a good deal more than that. it is " ... a very ancient way of instituting legal proceedings and is unique in that it allows a person to obtain an immediate injunction without the assistance or authority of an officer of justice. it is the only instance in civil matters where a person is allowed to take the law into his own hands."l it is difficult to be precise about its origin. it was certainly well established in the thirteenth century. mr c. s. le gros, a former lieutenant bailiff and sometime batonnier of the jersey bar, in his traite du droit coutumier de l'lle de jersey suggests that it could have been introduced into normandy by rollo, otherwise robert i the first duke of normandy 1011-1031 and was a neustrian institution. formerly in normandy its use was limited to cases where the duke's peace was interrupted by a crime ou delit. the ancien .coutumier of normandy puts it thus: (haro) "ne doit estre crye, fors pour cause criminelle si comme pour feu ou pour larcin ou pour homicide ou aultre evident peril; si comme se aulcun court seure a ung aultre, ie cousteau traict." as le gros points out, several other countries had similar clameurs. for example, the english hue and cry mentioned by blackstone in book 4 of public wrongs: "an hue (from huer, to shout, and cry) hutesium et clamor is the old common law process of pursuing, with horn and with voice, all felons, and such as have dangerously wounded another." it is still a requirement in jersey, at least, that those who hear the clameur being raised should assist in restraining the offender. by 1583, the reformed customary law of normandy only recognised the clameur as a remedy for civil wrongs. in jersey, by the end of the 17th century, the clameur was restricted "pour des faits possessoires en heritage." being a form of a diy injunction the courts in guernsey and jersey are strict in requiring the proper procedures to be followed. the raising of the clameur is justified only where a state * the bailiff, jersey, channel islands. i.a ttorney general, plaintiff and m rs bailhache, ajointe v. williams jersey judgments [1967 -1969] 991, at p. 992. 33 the denning law journal of "appert peril" exists. and the clameur must be raised in the hearing of, and against the perpetrator of, a wrongful act. there have been many instances where the royal court in jersey has considered the meaning of "appert peril". there is no need to translate "peril" but as "appert," as an adjective, does not feature in modern french dictionaries, we have referred to godefroy's dictionnaire de 1'ancienne langue pranc;aise2 where it is defined as "visible," "evident," "manifeste". pissard inla clameur de haro dans iedroit normanrp reports that in 1761,in the course of an appeal heard in rouen, it was said "le haro suppose un peril pressant; il est fair pour conserver el non pour recouvrer." the court reviewed also in that case some earlier authorities. examples of those were: huelin, ajointe v. le bas,4 a case where mr rudin, who had raised the clameur in the parish of st brelade on the ground that mr le bas had obstructed a right of way, admitted that he had raised it wrongfully as there was no "appert peril a ses biens"; and mollet, ajoinl v. herivel,5 where mr rerivel was cutting down trees in the common ownership of mr mollet and others. a more unusual case was that of le vesconte, ajoint v. de gruchy and picot,6 where the defendants were engaged in demolishing an entrance door in the eastern gable of trinity parish church to replace it with a window, thus depriving the ajoint of a right of passage to go to his seat in church. it was held in that case that the clameur had been raised properly, although the defendants were not at work at the time because they had been at work a short time before and were still there. this case may be compared with a guernsey case, mcallister livre de clameur, 26 august 1976, where the claimant was suffering from coal deposits from a nearby boiler on an agricultural holding. the owner of the holding did not live near his greenhouses but had installed a thermostat to come on automatically when required. applying the principle that one cannot raise a clameur except at the moment that one's right is being violated, the claimant waited until the thermostat had caused the boiler to start! the origins and the meaning of the clameur de haro in guernsey were reviewed by the court of appeal in that island in 1985 in the case of re kirk.7 it should be mentioned that although the clameur de haro forms part of the common law of guernsey and jersey, the procedure differs in each island. the words invoking the clameur are common to both islands: "haro, haro d l'aide, monprince! on me/ail tort," but thereafter in jersey the person against whom the clameur is raised must cease what he is doing and the attorney general is informed and is joined in the action. as will be seen from the title of the williams case, the attorney general becomes the plaintiff and the person who raised the clameur the ajoint(e). in guernsey, the claimant applies to the bailiff within 24 hours of his raising the clameur and has to submit an affidavit with his witnesses setting out all the 4. (1939) 240 ex. 240. 5. (1908) 225 ex. 274. 6. (1858) 8 c.r. 204. 7. no. 16 (civil) 1985. 34 clameur de haro particulars of the clameur. the bailiff then orders the clameur to be registered au greffe, i. e. in the court register of actions. in guernsey also there appears to be no sanctions available against those who wrongly raise the clameur or, indeed, against those against whom it has been properly raised. in jersey, on the other hand, either the party raising it or the wrong-doer may be fined. in b ai/hache v. williams, the person raising the clameur was deemed to have done so wrongly and was fined £50. in the kirk case, the appeal court pointed out that in normandy there was a distinction between resistance to invasion of possession, for which the clameur could be used, and attempts to regain lost possession, for which it could not. the judgment also cited two definitions of the clameurat page 11.the first is that of warburton who wrote at the end of the eighteenth century: "c/ameur de haro is thus practised. when any man finds another entering upon his possessions to make use thereof without his permission, he goes to the place, taking with him two witnesses, in whose presence he declares against the proceeding of those who invade his possession, and crying out three times, haro, he in the king's name discharges any workmen he finds upon the place from proceeding, or any person from employing them or others . . ." the second is that of laurent carey, who was a jurat of the royal court of guernsey from 1765 to 1769. in his essai sur /es institutions, lois et coutumes de /'i/e de guernesey, he writes concerning the clameur: "haro ayant, comme i/ a ere dit, un ineerdit possessoire, a pris son origine de rollo, duc de n ormandie, grand prince et tres juste, et est come une imp/oration de son aide et de son assistance contre ceux qui, par voie defait, se veu/ent mettre en possession du bien d' autrui; c'est une voie possessoire pour garder sa possession et /a defendre conere /a violence des plus forts. ce/ui qui possede, quoiqu' usurpateur, sera maineenu par voie de h aro, pour empecher /es voies defait sauf au depossede a sepourvoir par voie de petitoire. "8 the court in kirk finally concludes: "in our judgment the clameur may properly be used by a person in possession of immovable property to restrain interference with his possession or enjoyment of it ... it cannot be used to recover possession once lost. for that purpose the law provides other means." two questions remain unanswered: (1) can the clameur be raised in respect of moveable property; and (2) can it be raised against someone not present at the time of the alleged wrong doing? the guernsey case of the boiler is perhaps an indication that the court may entertain the raising of an action in particular 8. at pp. 197-8. 35 the denning law journal circumstances where it would not be reasonable to expect the wrong-doer himself to be performing the act which is complained about. however, even if these two questions have not yet been decided judicially, it is quite clear that in the bailiwicks of guernsey and jersey the clameur de haro, in the words of the coutume reformee, "doit etre respecte comme un asile inviolable." 36 pensions and retirement on the agenda helen desmond* in the last year or so it appears that not a day goes by without something on pensions being mentioned in the press or on the media. when it emerged, in december 1991, that anomalies had been discovered in pension funds of companies the late robert maxwell had controlled, anomalies which were subsequently revealed as £420 million in missing assets, pensions were already firmly on the agenda. that event (described as a spectacular fraud) ensured that it would remain so, probably until legislation is introduced to set an entirely new single statutory framework for the operation of pension funds. the problem which has to be faced in so doing is to find the middle ground between assuring the individual that his financial contributions will be well looked after and produce a reasonable pension at the end of the day, being protected from the various catastrophes which can occur along the way, and encouraging employers to continue to believe that the increased costs and inconvenience of complying with protections are in fact worthwhile and that it is in their interests to continue to provide a company based scheme for employees' pension provision. the alternative scenario is to change fundamentally the way in which financial provision is made post retirement, which could involve the employer, or series of employers, in financial contributions but not in administration or pension payment. existing agenda items the decision of the european court in may 1990 in barber v. guardian royal exchange assurance group,l raised the profile of pensions considerably. the resulting high profile campaign by the pensions industry as to their preferred interpretation of the barber judgment, together with a host of cases,2 has meant *lecturer in law, university of buckingham. 1. (case 262/88) [1990] i.r.l.r. 240. 2. roscoe v.hickhargreaves [1991](eat/205/91 lexis); w. f. leev. shell u.k. (unreported);keary, roberts & searle v. gullick dobson ltd. [1991] (unreported); neath v. hugh steeper ltd. [1991] p.l.r. 91; and see helen desmond, "a tangled web: barber and beyond a research report", (1992) i.r.]. vol. 23, no.3. 1 the denning law journal that literature landing on the desks of employment and pensions lawyers and personnel specialists will today invariably carry pensions news of various kinds. the failure of denmark to ratify the treaty on monetary and political union agreed by the european community heads in maastricht in december 1991 again raised the vexed question of retrospectivity following barber.3 the maastricht treaty contains a protocol which restricts the need to backdate pensions equality not only to pensions paid after the date of the barber judgment, 17th may 1990, but also to benefits accrued after that date.4 the protocol will, of course, not become effective unless or until the treaty is ratified by all member states.5 the spotlight therefore falls once more on c%roll pension trustees ltd. russell, mangham and others. the trustees wish to wind up the schemes following the appointment of receivers in june 1990. however, in order to do so they need to know what provision has to be made in terms of accrued benefits. in short, do they need to provide funds for equalisation of benefits from may 1990, from the date each member joined the scheme, or even from the date of ratification of the treaty of rome?6 c%roll was referred by the high court to the european court in july 1991 and was due to be heard later this year, along with a case from holland and one from germany, all of which are seeking to clarify different aspects of the barber decision.7 3. see ian cowie, "a £40bn morning after feeling", daily telegraph, 6th june 1992. 4. "forthe purposes of article 119 of the treaty establishing the european community benefits under occupational social security schemes shall not be considered as remuneration if and insofar as they are anributable to period of employment prior to 17th may 1990, ... ". 5. anna kelly, "following protocol", (1992) pensions world, february. hthe european court holds barber to be retrospective 16 electricity companies, who are members of the electricity supply pension scheme, intend taking action under article 215 against the council of europe for damages because the companies relied on the commission and council's interpretation of article 119 and "due to misrepresentation and violation of community law by the commission and the council" they were led to believe that this article did not yet apply to private occupational pension schemes: ids pensions service bulletin, issue no. 54: april 1992. 6. as was held in w. j. jones v. foxboro international (unreported) but noted "pensions & equal treatment", labour research department, september 1991. 7. g.g. ten dever v. stichting bednjfspensioensfonds voor het glazenwassers en schoonmaakbednjf [1991] p.l.r. 105; michaelmoroni v. firm collo gmbh [1991] p.l.r. 53. it is understood thatthe three cases are now to be heard in january 1993. the european court commenced hearing the three cases week commencing 25th january 1993. see also sara mcconnell, "weighing up cost of equality in a battle of sex and age", the times, 21st january 1993. on 28th april 1993 advocate general van gerven delivered his opinion in the four joined cases:ten dever v stichting bedrijfspensioenfonds voor het glazenwassers-en schoonaakbedrlif (case c-i09/91), moroni v firma collo gmbh (case c-llo/91 ), neath v hugh steeper ltd. (case c-152/91) and colo roll pension trustees ltd. v russell, managham (case c-200/91). in addition to the following brief summary the advocate general also considered the question of where liability for breaches of article 1191ay, whether article 199 applies to non-contributory schemes and the effect on schemes consisting of only one sex:2 pensions and retirement on the agenda in addition, the consultation period for the government's discussion document putting forward the options for amending discriminatory state pension ages, expired in june 1992.8 the discussion document was published in december 1991 following increasing pressure to equalise state pension ages, and a decision is awaited as to how the government proposes to equalise the age of eligibility for state retirement pension. the government originally appeared to favour a flexible approach, such as that put forward by the pensions industry.9 however, recent reports suggest that the government now believes that the administrative complexities of flexibility giving, say, a decade during which one could choose when to retire, would be too great and that they now favour a common state pension age. the house of lords' european communities committee, when backing the recommendation of the commons social services select committee, recommended a common age of 63. however, in its response to the department of social security on equalising state pension ages, the social security advisory committee has recommended progressively equalising at age 65 and this now appears to be the preferred option, i. the advocate general interpreted barber to mean that the principle of equal treatment should only be applied to benefits payable in respect of periods of service after 17th may 1990. periods of service prior to that date would not be affected by the direct effect of article 119. by this interpretation he is selecting the least expensive option of those put forward. the advocate general went on to point out that "the interpretation of the temporal limitation of the effects of the barber judgment which i propose here largely coincides with that adopted in the protocol on a1l9 annexed to the treaty on european union. i would, moreover, point out that if the court should come to a different conclusion, its decision would be entirely superseded as soon as the treaty on european union comes into force". par (a 23) 2. in addition, the barber decision, as interpreted above, applies not only to fmal salary schemes but "to all occupational pensions schemes" (para 26) 3. actuarial factors cannot vary as to sex, "at least insofar as this leads to men and women paying different contributions or receiving different benefits". 4. article 119 applies equally to spouses. 5. article 119affects trustees of pension schemes as well as employers and trustees are obliged to do everything in their powers in order to ensure that benefits comply with the principle of equality. 6. where a scheme does not comply with article 119the pension benefits of the disadvantaged sex must be brought up to the level of those of the advantaged sex. "however, community law does not prevent new scheme rules, adapted to the principle of equal treatment, which relate to periods of service in the future, from reducing pension benefits, so long as those benefits are set at a level which is the same for men and women". see "consulting update", the alexander consulting group, may 1993. see also, diana wright, "all pensions are now equal but some are more equal ... ", the sunday times, 2nd may 1993 8. "options for equality in state pension age", cmnd. 1723, december 1991. 9. pensions management institute; see "equalising state pension ages a discussion document", national association of pension funds, march 1991. see also, response to.the dss consultation paper by legal & general, "equalising the state pension age", june 1992. 3 the denning law journal equalising at 60 or 63 being too expensive. 10 this option will undoubtedly attract opposition from some quartersll and will be seen as turning barber on its head. instead of giving to men acces to the benefits enjoyed by women, as was intended, the outcome could well be just denying women the benefit at all. social security committee it is against this background, "and the consequences that were predicted to arise for the pensions industry if pension funds were forced retrospectively to give equal treatment to all members",12 that the social security committee, under the chairmanship of frank field, decided to investigate various aspects of pension funds. this developed into "a debate on the whole question of the ownership and control of pension fund assets and in turn took on a greater significance and public profile when the calamitous events surrounding the pension funds of the private and public companies controlled by mr. robert maxwell became known."!3 it is perhaps worth noting the importance that pension funds play in the economy as a whole. "almost half the adult population of the united kingdom are members or beneficiaries of non-state pension schemes. over 11 million employees are members of occupational pension schemes, and five million are covered by personal pension plans and about six million people receive occupational pensions. the growth of coverage of occupational pension schemes is reflected in the growing importance of these pensions in the distribution of personal wealth. although overall, people's homes are the largest single form of personal wealth, the value of occupational pension rights was estimated in 1989 to 10. ralph atkins and norma cohen, financial times, 21st april 1992;i.d.s. pensions service bulletin issue no. 58: september 1992. estimates of the cost of equalising state pension ages have varied widely. the treasury estimates the cost of equalisation at 60 at £3.5 billion a year, equalisation at 63 producing a saving of £500 million a year and a common pension age of 65 at a saving of £3 billion a year. the tuc estimates equalisation at 60 would cost only £0.7 billion and that equalising at 65 would actually cost £1.4 billion. it was widely expected that a white paper would be published in april this year and that a biiiwould be included in the queen's speech in november. the treasury has pushed for a common age of 65, and a saving of £3 billion a year. however, it is reported that government fears at the change is a potential vote-loser among women and wants a longer campaign to prepare the ground before it is put to parliament', andrew grice, the sunday times, 18th april 1993. it was subsequently reported that on 20th april peter lilley, social security secretary, told the social security committee that there would be no early white paper on a single retirement age, the times, 21st april 1993. ii. institute of personnel management, "personnel management", september 1992,who point out that equality at 65 would bring the u.k. into line with the rest of europe, i.e. italy and germany, france is currently reconsidering its earlier decision to equalise pension ages at 60. the trend in the u.k. is towards earlier retirement, with the vast majority of women retiring at 60 or before and over 50% of men retiring before 65: "a question of fairness", equal opportunities commission. 12. social security committee second report, "the operation of pension funds", march 1992,para. 1; "pension rights equality could send companies to the wall": daily telegraph, 29th june 1991. the cbi estimated the cost of retrospection at £50 billion; labour research, october 1991, quoting bryn davies of union pension services, put the figure closer to £10 billion. 13. supra, para. 1. 4 pensions and retirement on the agenda be equal to about 70%of the wealth stored in housing. in 1988, the latest year for which figures are available, occupational pensions formed 23%of the gross income of all pensioner units (single people over state pension age and couples where the man is over 65), and 37% of the gross income for those 57% of pensioner units with any income from an occupational pension."14 "the market value of shares owned by pension funds rose over eight-fold during the last decade" and have as a result increased their ownership of stock market securities from 6.4% of registered company shares in 1963 to 31.4% by 1990 and are "by far and away the most important single holder of these securities."15 yet, as pointed out by the social security comminee, until the large-scale loss of pension funds from pension schemes run by maxwell "there was little overt public appreciation either of the value of pension rights or of the significant holdings in the stock market held on behalf of pension contributors" which the report calls a 'blackout". the single good deed maxwell has done for pensioners generally was to ensure that the ownership and control of pension schemes was "now high on the political agenda" .16 the committee made a number of recommendations, principle amongst which was that they were in no doubt about the urgent need to reform the law as it applied to pension funds and that this should be done by the introduction of a pensions bill. they recommended the immediate establishment of a departmental committee or royal commission to undertake the task under a strict timetable. government responses early in june 1991 newspaper reports began to appear that peter lilley, secretary of state for social security, was expected to announce a wide-ranging review of pensions law and regulation. this followed increased activity, described as a revolt, by a group of more than 100 all party m.p.'s, an impending report by i.m.r.o. to the securities and investment board, which it was believed would be critical of its own supervision of pension funds, and an opposition debate on the maxwell pensions scandal. peter lilley said that government accepted the social security comminee's main recommendation that an enquiry should be established to collect evidence on what the detailed structure of a new pensions act should be, and on monday 8th june, the day more than 2000 maxwell pensioners lobbied parliament, he duly announced the setting up of a pension law review committee under the chairmanship of royston goode, professor of english law at oxford university, to carry out a wide ranging review covering the rights and interests of scheme members, trustees, pensioners and employers and to report within a year; 14. "consultation document on the law and regulation of occupational pension schemes", pensions law review committee, september 1992, para 3.1. is. social security committee, supra n. 12, para. 19. 16. ibid., para. 20. 5 the denning law journal reporting any recommendations for urgent action earlier if possible. 17 in the light of the maxwell revelations the government had already started a rearguard action when, in february 1992, tony newton, secretary of state, announced the implementation, from 9th march, of previously unimplemented provisions contained in social security act 1990; this restricted trustees investing more than 5% of the fund in either the sponsoring company, or any other company connected with it, and where existing investments exceeded the 5% limit arrangements were to be made for a progressive reduction to the 5% level. this was seen as a welcome, if somewhat belated, protection which some would have preferred had gone further to a complete ban on self-investment. 18 following the announcement of the establishment of the goode committee the secretary of state, under pressure from opposition and backbench m.p. 's, as well as all sides in the pension debate, responded in a haphazard way in various areas as if putting out a series of bush fires. first, in the area of compensation: there is no compensation scheme for employees whose pension fund fails to provide them with their anticipated pension and whose lifelong savings, as well as those paid on their behalf by their employer as part of their salary package, is squandered or fraudulently misappropriated, or just fails to provide the promised pension as a result of poor investment performance or poor management. this contrasts sadly with the arrangements that exist for holiday makers. bonding has long formed a part of the package holiday market and is a selling point when booking one's annual holiday because of the protection it offers should the company go out of business either after parting with one's money or while actually away on holiday. as a result of a european directive,19 which came into 17. the committee's terms of reference are: "to review the framework of law and regulation within which occupational pension schemes operate, taking into account the rights and interests of scheme members, pensioners and employers; to consider in particular the status and ownership of occupational pension funds and the accountability and roles of trustees, fund managers, auditors, and pensions scheme advisers; and to make recommendations." membership of the committee is as follows: professor roy goode, chairman; tony atkinson, professor of economics at l.s.e.; david berridge, chief executive, scottish equitable life ass.; harvie brown, actuary and principal, william mercer fraser ltd.; bryan hines, formerly general manager, insurance & investments, i.e.i. p.1.c.; stuart james, partner, rowe and maw; terence libby, chairman and chief executive, morrisflex ltd.; alastair ross goobey, chief investment strategist, james capel; patricia triggs, partner kpmg peat marwick mclintock; sue ward, freelance journalist and researcher on pensions issues. 18. i.e.., the national association of pension funds. 19. directive 90/314, brought into effect by package travel: package holidays and package tours regulations 1992. 6 pensions and retirement on the agenda effect on 1st january 1993, existing bonding arrangements were extended to all inclusive travel, not by the introduction of one bonding scheme, but by the extension of the existing proliferation of schemes.2othe government has in tum given an undertaking that in the event of the air travel trust, whose funds have declined from some £26 million to £5 million as a result of a number of failures, being unable to meet claims the government would meet them directly. it is, therefore, somewhat bizarre that the nearest the government ofthe day has come to awarding compensation to the victims of the maxwell fraud was to announce, as late as 29th june 1992, that the government would provide temporary emergency funding equal to £2.5m for the benefit of pensioners of the m.c.c. empire but excluding pensioners of other companies maxwell acquired and whose schemes he promptly raided, e.g. british international helicopters.21 the government also announced that it was to establish a trust fund, under the chairmanship of sir john cuckney, which would call for and administer voluntary contributions from financial institutions and other private sector donors, which would be used for the benefit of pensioners affected by the maxwell fraud. the contrast between the treatment of these two types of situations almost belies belief. what sort of society is it that values its holidays to a greater degree than the repayment of a lifetime's savings for, not great comfort, but some additional income in retirement over and above that which reliance on a state pension and social security benefits would bring?22 secondly, on the question of a deficiency when a scheme is wound-up: the social security act 1990 contains provisions under which a deficiency on the winding-up of a pension scheme, or when the employer goes into liquidation, 20. a.t.o.l. currently covers inclusive air tours, a.b.t.a. inclusive travel arranged through approved travel agents, f.s.a. shipping inclusive travel and a number of other such schemes. 21. on 27th october 1992, ann widdecombe, social security minister, announced in the house that the government still had £15m in the fund and that £i m had been distributed to 5,500 pensioners, deferred pensioners and those retiring because of ill health, whose payments were at risk. 22. the national association of pension funds has supported the implementation of a compulsory risk-related compensation scheme to be triggered when an employer goes into liquidation and there is a shortfall in the fund. national association of pension funds ltd. discussion paper, "a proposal for a compensation scheme for occupational pensions", 2nd november 1992. see now liz dolan, "napf abandons protection proposals", the times, 18th december 1992. the chairman, brian macmahon, reported that new proposals, reflecting the views of the majority ofn .a.p.f. membership after a "record mailbag" would mean that the proposed scheme would now only apply in cases offraud, theft or criminal negligence. if the original proposals had gone through, the country's second-biggest pension fund, the electricity supply pension scheme, threatened to resign from the association. the proposals form part of the n.a.p.f submission to the goode committee. 7 the denning law journal becomes a debt on the employer.23 amid the high excitement created by the possible retrospectivity of the barber decision tony newton, the secretary of state for social security at the time, announced that implementation of this provision would await clarification of the barber decision. however, somewhat in haste, regulations were laid before parliament on 30th june 1992,which came into force on 1st july bringing into effect these provisions.24 this debt applies in respect of any occupational pension scheme, whether tax approved or not, and whether funded or not, unless it is a money purchase scheme. the view is that the regulations have been introduced in great haste and apply to schemes currently in the process of winding up in an attempt to ensure that the trustees of any maxwell scheme which is wound up can have recourse to any assets held by the company concerned. this will require a view to be taken on whether the sex equality requirements in article 119 of the treaty of rome have been adequately provided for or whether additional funding will be required to cover retrospection. no consultation with the profession took place before the regulations were implemented and no guidance has been issued. despite this lack of planning and execution in the introduction of the regulations, they are pretty meaningless and offer virtually no protection to scheme members because the host company, being insolvent, is likely to have somewhat limited resources and since the debt is unsecured the pensioners and beneficiaries are likely to be some way down the list of creditors. thirdly, in connection with disclosure of information: the social security committee recommended that members should have a right to receive more information on their pension funds' portfolio, including in what form the assets are held and where deposited. indeed, the committee saw the right to information of various kinds as a means of empowering members and enabling them to question trustees on their stewardship of the fund. the government's response was to announce, on 29th june 1992, that members of occupational pension schemes would indeed be entitled to much more information from trustees and administrators about their funds. with effect from 28th september 1992, further disclosure requirements on trustees were duly brought into effect.25 these in general call for tighter timelimits in providing pension scheme information and the provision of basic scheme information to members. audited accounts must be produced within 12months of the end of the scheme year and copies must be made available to members on request within one month. 23. schedule 4, para. 2 which introduced a new para. (58b) into the social security pensions act 1975. 24. the occupational pension schemes (deficiency on winding up etc.) regulations 1992 (si 1992/1555): see "funding to be employer's debt on winding up", occupational pensions (1992), october. 25. the occupational & personal pension schemes (miscellaneous amendments) regulations 1992 (si 1992/1531). 8 pensions and retirement on the agenda however, the provisions of the social security act 1990, which require final salary schemes to pay indexed pension increases up to a maximum of 5% in respect of future service, and past service where the scheme is in surplus, have yet to be implemented. tony newton, as secretary of state for social security, announced in june 1991 that these were not to be implemented "in view of the substantial financial uncertainties faced by occupational pension schemes as a result of the barber judgment."26 likewise, an announcement has yet to be made regarding the implementation of social security act 1989, section 23 and schedule 5. these provisions implement the requirements of directive 86/378 prohibiting discrimination in domestic pension schemes, the final date for implementation of which was 1st january 1993. as drafted the provisions have been largely overtaken by the barber decision but no announcement as to proposals for the introduction of the remaining provisions of the directive have been made. the pension law review committee some five months after being set up, the pension law review committee published a consultative document in which they describe the status quo and pose a number of questions to which pensions advisers and other interested parties were invited to respond by 15th december. a final report is due by autumn 1993.27 professor goode has said that the committee would be considering two main issues: how far uk pension law provides fair treatment to all the parties involved, and the security of funds. the committee is also proposing a survey into how much employees know about their own pension funds.28 trust as a basis for occupational pension schemes the social security committee examined the arguments advanced by earlier committees for the abolition of "medieval trust law" as the underlying basis upon which occupational pension schemes are established and run.29 that company pensions schemes do have trusts as their basis is a matter of convenience rather than design, and became entrenched as a framework when the inland revenue made it the basis upon which tax relief was granted, relief which in 1991/92 amounted to £9,100 million.30 although, as was pointed out to the committee, 26. mr. newton said in the house on 26th june 1991 that "there is no question of our having dropped limited price indexation ... " 27. consultation document on the law and regulation of occupational pension schemes, pension law review committee, september 1992.as a result of an overwhelming response to the consultation exercise, peter lilley agreed to a three-month extension of time, and final recommendations are therefore to be made by 30th september. 28. the times, 18th september 1992. 29. report of the committee to review the functioning of financial institutions, cmnd. 7937, 1980; review of investor protection: a discussion document, hmso, 1982;review of investor protection: cmnd. 9125, 1984. 30. social security committee report, section 4, table 3. 9 the denning law journal there now also exists "about 2,500 pages of statute law .. .'',31 the select committee concluded that the wilson committee32 was right in 1980 in recommending that a new legal basis should be sought, and that it should be analogous to the law which regulates companies.33 the wilson committee observed that "the framework within which occupational pension schemes in the united kingdom operate has grown piecemeal and now needs to be systematised and strengthened. it is unsatisfactory in our view that so much of it should depend on a body of trust law developed for quite other purposes. "34the committee notes that this point was explored further by the gower committee35 and again by the occupational pensions board who observed in their 1982report that: "the concepts developed in trust law become rather strained when applied to a modern pension scheme. under trust law the employer is considered to be the 'settlor' who endows that trust from which the members or 'beneficiaries' draw their pensions, overlooking the fact that the members as well as the employer often contribute to the scheme and the employer's contributions can scarcely be considered as an act of unilateral benevolence."36 however, in their 1989 report the occupational pensions board were so~ewhat more reserved regarding the need to change the legal basis upon which pension funds are based.37 the social security committee based their criticism of trust law on the power that companies can exercise over occupational schemes they have set up. it is the employer who drafts the trust deed and as the pension law review committee points out: "present law allows the employer a wide measure of freedom in determining the content of the trust deed and scheme rules and the balance of power between the employer and the trustees. in particular, it is for the employer to determine the categories of employee eligible for scheme membership (so long as there is no illegal discrimination), the classes of beneficiary under the scheme, the contribution rates, the conditions of pension entitlement, the benefits to be provided and the circumstances in which benefits are forfeited or made subject to the exercise of discretion by the trustees. in addition, the employer may, by the terms of the trust deed, reserve the right: to appoint and remove trustees, actuaries and other advisers; to appoint as sole trustee a trust company which is a wholly owned subsidiary of the employer; 31. ibid., para. 55. 32. report, supra n. 29. 33. supra n. 30, paras. 74 and 75. 34. ibid., para. 25. 35. review of investor protection: a discussion document, hmso 1982; review of invest~r protection, cmnd. 9125, 1984. 36. occupational pensions board, cmnd. 8649,1982, para. 31: quoted social security committee. 37. "protecting pensions safeguarding benefits in a changing environment", report by the occupational pensions board, cmnd. 573, february 1989. 10 pensions and retirement on the agenda to limit the powers and duties of trustees and their liability for breach of trust not amounting to wilful default; to determine investment strategy; to reduce or suspend contributions; to approve benefit increases proposed by the trustees; to reclaim or otherwise determine the use of a surplus; to modify, close or wind up a scheme."38 as was pointed out to the social security committee: "it is one of the last strongholds where we have seen little government intervention in the freedom to contract. "39 from being virtually unknown in large pension schemes in the nineteenth century, trust law was a useful and novel feature for occupational funds when proprietors first established occupational pension schemes for their workers in the first quarter of the twentieth century. it was favoured by liberal employers anxious to create harmonious relations and to share the administration with employees. it was soon realised that a trust was a cheap and effective vehicle because of its flexibility and the degree of defacto control which could be retained by appointing all the trustees. not only this, but with the inflationary conditions of the first world war employers lobbied for exemption from taxation and in 1921 pressure from a group ofbackbenchers led to the implementation of the finance act 1921 which confirmed exemption from income tax of both employers' and employees' contributions to the funds and also exempted the whole of the investment income of the fund from taxation, tax being paid only on the pensions when they were paid; the additional benefit being that the funds are not vulnerable in the event of the failure of the company. it is argued, however, that today the argument has moved on and that it is protection from the employer rather than protection from company creditors which is the aim. so, that trusts became the vehicle for the operation of occupational pension funds at all came about, not by deliberation as to the suitability of such a system, but because the inland revenue made it the basis upon which tax relief was granted, relief which in 1991/92 amounted to £9,100 million.40 it is perhaps trite law that when assets are passed into a trust, they become trust property and as such although they legally belong to the trustees they must be used for the benefit of beneficiaries, the trustees falling under a fiduciary duty to exercise their powers for the benefit of the beneficiaries: the donor no longer having an interest in the property. 38. para. 7.8. 39. mr. sean hand, social security committee, para. 42. 40. leslie hannah, inveming retiremem the developmem of occupational pensions in britain (1986). the chancellor in his 1993budget announced a reduction in tax credits which pension funds can claim on dividends from 25%to 20%. it is estimated that pension schemes will lose investment income, from april1993, of around £600m a year: newslines from the g.m.b.c group, may 1993. 11 the denning law journal insofar as company pension schemes are concerned, however, this principle does not apply. the company becomes a beneficiary itself under the 1986finance act which limits the surplus to be retained in the fund to 105%.any surplus in excess of that is to be penalised by the loss of tax relief. this places the company in a severe conflict of interest which is aptly demonstrated in the disputed transfer by lucas industries of £150 million from its pension fund.41 in recent years there have been a number of well publicised surpluses and as a result conflicts involving companies, trustees and members in which the right to the surplus in the fund is central. 42 a refund to the company is, of course, just one of the ways in which the company can benefit from a surplus. for example, perhaps the most spectacular of surpluses has been that of british coal industries pension fund, which was reported to have a surplus of £1.4 billion.43 whilst approximately 70%of the surplus was allocated to improve benefits for scheme members, pensioners and those with deferred benefits, british coal gained from the surplus in that it achieved a contribution holiday until the year 2000, which accounts for the balancing 30%of the surplus.44 it has also been reported that british rail recently agreed a contribution holiday worth over £300 million.45 british coal is an industry which it is planned should pass from the public to the private sector and, as yet, despite opposition pressure no reassurances that the surplus will be used for the benefit of members has been forthcoming. following the announcement by michael heseltine, president of the board of trade, of 30,000 redundancies in the pit closure programme, fears have been expressed that the government will attempt to recoup some of the £1 billion redundancy costs by attempting to "siphon off' surpluses.46 41. the times, 13 october 1992: "lucas shake-up wipes out£90m pension surplus". lucas pensions trust, a company in which the directors are equal numbers of management and union representatives, made scheme improvements for 30,000 employee members and 35,000 pensioners amounting to £225 million. it applied to the occupational pensions board for the grant of a modification order to transfer £150 million (before tax). the company has had a pensions holiday since 1985 and in november 1991 after the order was granted, a transfer of a nett sum of £90 million was made to the company. however, some 79 individual beneficiaries are disputing the transfer and have issued a high coun writ against the trustees of the fund seeking the return of £150 million: ids pensions service bulletin, issue no. 52: december/j anuary 1992. 42. e.g., molins pension fund surplus is reported to amount to £390 million and the company has put a proposal to the trustees that some of that be returned to the company: daily telegraph, 21st march 1992; stannad v. fisons pension trust ltd. [1990] p.l.r. 201. 43. the times, 20th december 1991. 44. ids pensions service bulletin, issue no. 58: september 1992. 45. bargaining report ill, november 1991. 46. kirstie hamilton, "row brews over fate of coal's pension surplus", sunday times, 18th october 1992. during the passage of the bill the minister has come under pressure from backbench m.p.s to include in the bill security for preferential travel terms for those beyond state pension age and students. the question ofthe pension scheme and pension provision remains, however, subject only to ministerial statements. 12 pensions and retirement on the agenda the conflict arises most acutely when ownership of a company, along with the pension scheme, is transferred. the assets sitting in the fund may be irresistible and to resolve the conflict the law can only resort to the old common law duty of trust and confidence.47 it is such situations that have led to a debate and legal action over who "owns" the funds, or for whose benefit funds accrued in a scheme in excess of that required to meet or provide for the set level of benefits, should be used. whilst some employees can look forward to their pension as a matter of contractual right,48 it has been pointed out that in law the interests of beneficiaries are neither immediate nor directly measured by the value of the fund; employees acquiring rights to payment from the fund only when reaching normal pension age and then as provided for by the scheme rules.49as for the surplus, beneficiaries have no legal right to participate in the surpluses in existing schemes, but likewise they are not to be irrevocably parted from them by the unilateral decision of a takeover raider with only a transitory interest in the share capital of the companies which employ them.50 it is against this rich backdrop, coupled with the fact that the pattern of working life today rarely, if ever, involves employment with one employer, but with a number of employers, and that interspersed with periods of employment may well be periods of unemployment, whether voluntary or involuntary, that pensions have taken on a high profile role.5' in addition, the maxwell and other scandals concerning fraud have led to calls for "something to be done". that "something" may well involve the introduction of a standard trust deed for all company based schemes or it may involve a new model along the lines suggested by the social security committee. alternatively, there is a more radical approach: that the provision of income after retirement should be totally divorced from the employing company. 52the key characteristic of this pensions model is that accumulated benefits would be unaffected when employment is changed because the scheme would be completely independent of the employing company. of 47. imperial group pension trust ltd. v.lmperial tobacco ltd. [1991] 2 all e.r. 597. 48. employment protection (consolidation) act 1978, s.1 requires an employer to provide written particulars to all employees who fall within s.1 of what amounts to the key terms of their employment contract. s.i(3)(d)(iii) requires any terms and conditions relating to pensions and pension schemes to be included. although the statement has been held not to be a contract it is evidence of the contractual terms. therefore the more detailed the statement, the greater the obligation on the employer to provide those benefits. 49. supra n. 14, para. 9.3. 50. courage group pension v. imperial brewing [1987] i all e.r. 528, per millet j. 5!. it is noted, daily telegraph, 31st october 1992, "inquiries on pensions nearly treble", that the number of inquiries received by the occupational pensions advisory service nearly trebled in the last 12 months. 52. david blake, "it's time to take our pensions out of the hands of employers", the times, 18th september 1992, argues that even if it was once the case that employees would remain in lifelong employment, pension schemes were then not for employees to save for their retirement, but for the employer to put money to one side for his employees' retirement. 13 the denning law journal course, this overlooks the fact that the benefit to the employee of a company based scheme is that the employer is very often responsible for a significant percentage, sometimes all, of the contributions and that he often pays the life insurance premium which provides life cover for all members up to the permitted revenue limit. 53 in addition, it is the employer in lean times who is often responsible under the trust deed for providing the funding should a deficiency occur this is of course the argument used to demonstrate why it is he who should gain when the scheme is overfunded and in surplus. 54 the consultation document issued by the pension law review committee55 raises a number of questions upon which it seeks views from as wide a spectrum as possible. 56 it asks whether there is a case for abandoning the use of trusts and what other mechanism, which would offer improved protection, could replace it. it explores the different arguments advanced by employers for their right to determine the use of a surplus, and those advanced on behalf of employees, and seeks views on how the interests should be balanced, and goes on to ask whether there should be an occupational pension scheme act. the question is also raised of how disputes are resolved and whether there should be a specialist pensions tribunal. 57 this was recommended in 1989 by the occupational pensions board58 but was omitted from the 1990 social security act, which implemented other recommendations, on grounds of cost. the question has arisen again recently with the first anniversary of maxwell's death. it has been pointed out that "the sums paid to the corporate undertakers are mind-boggling. so far, the total is reckoned to be anything up to £70 million ... ".59 this is a subject to which the social security committee has now turned its attention, with particular reference to how much of the sum consumed on legal fees has been spent on fighting disputes between lawyers representing the different interests involved. information the social security committee recommended that each year contributors to, and beneficiaries of, occupational pension funds should receive an annual statement approved by the fund's auditor highlighting the value of their pension funds' 53. currently four times pensionable salary. 54. in a survey conducted by actuary towers perrin, 80%of employers (representing one-third of the total membership and assets of the u.k. private pension schemes) believed it was the responsibility of the sponsoring employer to make good any shortfall in the fund, but most respondents thought any pension fund surplus belonged to the sponsoring employers and should not be given to members: personnel plus, august 1992. 55. see n. 14, supra. 56. professor goode wrote a letter to the times on 20th october 1992in which he emphasised that the committee welcomed all views, whether or not they fitted into the structure of the consultation document, and pointing out that it was intended to hold three public hearings during the consultation period in birmingham, edinburgh and london. 57. see n. 14, supra para. 18.3, question 75. 58. supra n. 31, para. 13.14-17. 59. "the fortune hunters", the guardian, 5th november 1992. 14 pensions and retirement on the agenda portfolio. in addition, the statement should indicate in what form the assets are held and where deposited, and individuals should also be given details of the value of their holding, together with a summary of the audited accounts and information of how to obtain a copy of the full accounts. indeed, the committee see the right to information of various kinds as a means of empowering members who should annually be given the opportunity of indicating whether or not a meeting of members should be held, and during which they could question trustees on their stewardship of the fund. of course, the new disclosure of information requirements were recently brought into effect. however the volume of information and complexity of pension schemes may have the effect of rendering more information of little use to the average member. fraud it appears that, maxwell aside, the question of fraud is an increasing one. mr. sean hand, who was appointed adviser to the social security committee, when asked about the extent of pension fund fraud said: " ... that the true answer is that nobody knows. there were, however, signs which suggested to him, ... that fraud 'may be fairly widespread'."60 in 1989, after aveling barford, a grantham firm, went into receivership, it was discovered that £ 1 million had been transferred to the parent company. since then in excess of £6 million of pension fund money has been recovered by touche ross, the trustee, and three men were convicted of conspiring to defraud the pension fund and received prison sentences from two to four years.61 this is not an isolated case. it is the sheer scale of the fraud in the maxwell case that has attracted so much attention, but there have been a number of cases of missing pension fund money in the last two years and for members of all schemes, where benefits either suffer a reduction or are terminated as a result of fraud, it is a personal tragedy. in march this year gerald smith, former chief executive of farr construction group, which went into liquidation in december 1990, appeared before magistrates at bow street facing 14 charges that allege he stole £1.2m from the company's pension fund. when bradstock trustee services was appointed independent trustee for the peak design ltd. pension scheme, which went into receivership, they found around £1 million was missing from the pension fund and the derbyshire fraud squad have been brought in to investigate some aspects of the scheme's affairs.62 following the appointment as independent trustee for the lewis's department store chain, law debenture trust corporation is reported to be considering taking legal action against the pension fund trustees, advisers and agents over 60. social security committee, para. 186. 61. ids pensions service bullecin june 1992 and september 1992. 62. ids pensions service bullecin, may 1992. 15 the denning law journal allegations that over £4 million is missing from the fund.63 after belling & company, an old established north london firm, went into receivership in may 1992, the independent trustee reported that the trustees of the pension fund bought a company in november 1991 from belling for a sum representing 20% of the pension scheme's assets and although the company was trading profitably, much of its trade was with belling. in addition, the independent trustee is investigating an investment of £2.1 million which belling used as an advanced payment on a refinancing arrangement which did not go ahead, but the money was not repaid. until such time as these two matters have been resolved, although pensions in payment will continue, early retirement and payment of transfer values will not be possible.64 at a time of diminishing company fortunes, pension funds have prospered and have by and large accumulated large surpluses by a combination of overfunding, unpredicted stock market performance and large scale reductions in the workforce. as workforces continue to be compulsorily reduced on an unprecedented scale, pension funds will get richer at the very time that company performance and profitability continues to deteriorate. 65 the temptation to regard pension fund surpluses, or even pension fund assets, as 'available' to an ailing company will grow and the question of the ownership and treatment of surpluses will increase in intensity both in the private sector,66but perhaps particularly in the public sector where pension provision has been generous and there has in the past few years been a massive transfer of labour into the private sector, with consequent pension problems.67 trustees it is the trust deed which specifies the power to appoint and to dismiss trustees and it is very often the sponsoring company who retains this power. the pensions law review committee point out that the employer will normally appoint and remove trustees and that the majority of trustees are usually drawn from the senior 63. ids pensions service bulletin, april 1992. 64. ids pensions service bulletin, issue no. 58: september 1992. 65. "fraud flourishes across uk", the times, 21st november 1992: "kpmg peat marwick ... has compiled a 'fraud barometer' that tracks case offraud involving £100,000 or more. by june 18, 1992 the value of reported fraud ... had overtaken the total of £376 million recorded in 1991, itself 64 per cent up on the previous year. by the end of august, the uk fraud toral had reached £445 million .... kpmg's fraud specialist says the recession is flushing out tricksters like rats from a sinking ship." 66. seelmperial group pension trust ltd. v.imperial tobacco ltd. [1991] i.c.r. 524;stannard v. fisons pension trust ltd. [1992] i.r.l.r. 27; ryan v. impen'al brewery &leisure ltd. [1987] 1 all e.r. 528; richard nobles, "who is entitled to the pension fund surplus?", ilj. (1987) september. 67.1. e., "post workers face loss of pensions" ,personnel today (1992), 29th september, "qa pensioners shocked by figures that don't add up", daily telegraph, 7th november 1992.qa business services was formerly the management services division of the west midlands regional health authority and was bought by its managers in 1989. 16 pensions and retirement on the agenda management of the company. 68 the select committee highlighted the inability of trustees who are employed by the company, however senior, to exercise their functions independently and in the interests of members when faced with an employer who holds the power of dismissal and is prepared to exercise that power. they recommend that independent custodian trustees should be appointed to hold pension fund investment assets and that all pension fund share documents should clearly have their ownership designated on them. there appears to be widespread support for at least one trustee to be independent69 and in evidence to the select committee the pensions management institute, in advocating improved stewardship of pension schemes, recommended that each scheme should have an independent trustee and that in addition the powers of the pensions ombudsman, set up by the social security act 1990 to hear complaints by members of maladministration by trustees or managers, should be expanded to enable him to hear complaints by trustees or pensions managers, and that he should have powers to protect "whistle blower" trustees. at present the only requirements for an independent trustee is when an insolvency practitioner begins to act in relation to a company. under the social security act 1990 he is obliged to ensure that there is an independent trustee of the company's pensions scheme, and once in place he can only be removed by the court. there is an increasing tendency for workforce representation on the board of trustees and it would appear appropriate that, not only should the ombudsman's powers be extended in order that he may hear trustees, but that protection be afforded to employee trustees similar to that provided by the employment protection (consolidation) act 1978, section 58 in connection with trade union membership.70 the trade union reform and employment rights bill contains protections against dismissal for employees who "whistle blow" in connection with dangerous working practices, similar to those which protect those carrying out trade union duties. this recognises that the employee who turns "whistle blower" is extremely vulnerable and the same can be said of the "worker trustee" who, without . protection, becomes a mere token. a campaign has been initiated by g.m.b., t.g.w.u. and m.s.f. unions for legislation which would compel pension trust boards to give a majority of seats to 68. para. 10.1. 69. john jolliffe, "the independent trustee", sol. jo. (1992), 20th march, summarises the proposals set out in a paper submitted to the pensions management institute which was prepared by a group promoting the concept of independent trusteeship. 70. the society of pension consultants in "occupational pensions mter maxwell", june 1992,para. 4.3.10, expressed the wish to see greater security of tenure for member trustees, involving limits on the employer's power to dismiss them as trustees and/or employees and suggests that in the same way that dismissal from employment arising from trade union activity is a ground for complaint to an industrial tribunal, so should be dismissal arising from legitimate action as a trustee. 17 the denning law journal pension fund members. likewise the institute for public policy research has published a report putting forward a number of specific proposals for changes in the law to ensure better protection of workers' pensions and in particular that at least two-thirds of a scheme's trustees should be appointed by scheme members, including pensioners and deferred pensioners, and that there should be entrenched rights for member trustees, including security of employment and time off with pay to carry out their duties. 71only 38% of those surveyed by towers perrin 72agreed that half the trustees should be elected by employees, and 49% disagreed. the report points out that independence of the chairman of the trustees from day-to-day management of the sponsoring employer was not seen as necessary; nor was the requirement that separate advisers be appointed to trustees. advisors are usually appointed by the sponsoring company and in such circumstances see their role as acting in the best interests of the company. browne-wilkinson lj in a paper delivered to the national superannuation conference in melbourne in february 1992 listed ten modifications to trust law which, in his view, are necessary. amongst these are that at least one of the trustees should be wholly independent of the employer; that in larger schemes at least, the trust assets should be held by an approved, independent custodian trustee; that the employer should not have power to remove a trustee and that trustees should always have separate legal advice from that of the company. towers perrin point out in their survey73 that with the more rigorous definition of independence adopted in the social security act 1990 in the event of insolvency, in practical terms, with thousands of pension schemes but so few truly independent professional trustees, it is difficult to see a mandatory independent trustee being so rigorously defined and that, in their opinion, it is far more important for all trustees to have access to exclusive and unbiased advice. the society of pension consultants consider that "rather than have a right to seek independent advice, members of a trustee body who find themselves in a minority, and who feel that there is cause for concern arising from actions agreed by the majority of trustees, should have the right to take their concern to an appropriate watchdog body ... " which may be a restructured occupational pensions board as suggested by the social security committee, or a tribunal, and they stress that it is desirable to establish an overall watchdog body for occupational pension schemes. one of the difficulties faced by member trustees is that not only are they subject to employer pressure, but the law relating to pension schemes is diverse and complex. the pensions management institute has launched a trustee certificate aimed at providing those trustees who wish to sit the examination with formal 71. "locking the stable door the ownership and control of occupational pension funds", bargaining reporr1l6, april 1992. 72. see n. 54. 73. see n. 54. 18 pensions and retirement on the agenda recognition that they have basic knowledge of trust law and associated pensions legislation.74in addition the occupational pensions board have issued a guide for pensions trustees which under the disclosure of information regulations, which came into effect in september 1992,75must be put into the hands of all trustees and a statement is required to be made in the accounts that all trustees have been given a copy.76 regulation the select committee examined the roles of the various watchdog bodies occupational pension board (opb), occupational pensions advisory service (opas), superannuation funds office (sfo), from april 1992known as pension schemes office (pso), and imro upon whom the committee comment: " ... this aspect of the system of self-regulation is when the chips are down little short of a tragic comedy." the committee recommend that the opb be reconstituted with additional powers and that it become the main regulatory agency for occupational pensions, with responsibility for supervising the training of trustees and power to place assets of pension funds under the control of an approved trustee if the assets are at risk. the pension law review committee note all the bodies officially concerned with pensions and comment that the legal framework within which pension schemes operate is extremely complicated and that regulatory control is fragmented with no single body responsible for the full range of schemes' noninvestment activities. it asks whether there should be a new body or an existing body with expanded powers and what the role of the opb should be in any new regulatory system.77 the view has been expressed that at the end of the day, as with any reform, "the acid test is whether these measures would withstand the sustained assault of a determined and persistent marauder. a set of mousetraps, however elaborate, will not deflect the charge of a rogue elephant."78 a determined fraudster will inevitably find a way round whatever regulations and supervision there may be. there appears, however, to be a measure of agreement that rather than increase regulation in an already over regulated sector, which will place additional burdens on employers, what is required is an effective mechanism to identify those funds with few and declining safeguards and provide sufficient powers for a newly . constituted occupational pensions board to intervene. the question is, of course, what is the extent of the funds with declining safeguards? 74. ids pensions service bulletin issue no. 58: september 1992. 75. see no. 25. 76. "the occupational pensions board guide for pension trustees", hmso, january 1992. 77. paras. 18.1 and 18.2. 78. bacon & woodrow, analysis no. 74, 11th february 1992. 19 the denning law journal summary following the maxwell affair, the government has the task of restoring public confidence in pension funds as a means of saving for retirement. there appears to be a widespread view that following the maxwell scandal it is necessary to wipe the slate clean from a mish mash of tax and social security legislation and trust law and start afresh with a statutory framework. 79 finding a framework which achieves the dual goal of reassuring employees of the security and management of their future pension, and at the same time avoids the introduction of increased complexity and cost, is a balancing act which will require a fair degree of skilled footwork. if the right balance is not struck employers will decide not to continue to operate a pension scheme, preferring to let employees contract back into the state scheme. the social security committee noted that "something like 3,500 schemes sought surrender or cancellation of their contracting-out certificates last year, mainly due to the recession ... ".80this is a worrying trend and it is notable that even the introduction of the disclosure of information regulations81 with its consequent additional burden on personnel departments, has caused some companies to wonder whether the burden of continuing to operate an in-house scheme is worthwhile.82at the very least, there has been a progressive move in the private sector away from final salary schemes to money purchase schemes whereby the fund which accumulates at the end of the day is very much a product of how the investments perform and there is no guarantee of a given percentage of final salary. in recent years, the government has been attempting, by the use of incentives, to reduce dependency on the state earnings related superannuation scheme (serps),83 as well as the benefits to be obtained from it, because of the fears of increasing costs at a time of demographic change. it is projected that by the year 2050 those over state pension age will increase from 10.3 million to 13.3 million, peaking at 14.4million in 2034 when the 1960's baby boom reaches retirement age. at the same time the working age population is expected to fall from 34.4 million to 33.6 million by 2050. because the state scheme is a pay as you go scheme and not 79. in evidence to the social security committee miss dawes ofthe opb "recalled that, on average, one act was passed each year affecting pension funds and that there now exists 'about 2,500 pages of statute law ... designed to protect members'.": para. 55. 80. para. 197. 81. see n. 25. 82. "changes to pension rules could mean more work for personnel department ... ". "the rules also mean personnel departments will have to ensure the performance of their schemes is listed over a rolling lo-year period. actuary gordon mitchell said this will cause confusion since performance figures are dependent on inflation. he believes within a decade some firms may find it easier to drop pension schemes altogether.": personnel today, 13th october 1992. 83. the daily telegraph, 21st november 1992, reported that the government had announced further incentives for those contracted out of serps to remain out from april when otherwise it would have been favourable for them to return, by the announcement of an additional 1% rebate of national insurance contributions and hinted that it may introduce further age-related rebates to encourage older people to remain contracted out of serps. 20 pensions and retirement on the agenda actuarially based, the support ratio (the ratio between the working population and those in retirement) is important. at the same time as the increase in those in receipt of pension, it is expected that those of working age will decline, reducing the ratio from 3.4 in 1990to 2.6 by 2050, a fall of24%, reaching a low point of2.4 in 2030. this suggests that the capacity of the economy to support its much larger pensioner population will come under considerable pressure.84 this problem has been compounded by the recession which has seen large numbers of people being made redundant. for those who were members of a final salary company pension scheme their plans and hopes for a retirement in which they would enjoy a pension of up to two-thirds final salary have evaporated. for those who were members of money purchase schemes and who are now unemployed, because their contributions have ceased their fund will stagnate; and those who accepted government incentives and set up personal pension arrangements will be faced, in the event of unemployment, of letting the policy lapse or making it paid-up. whichever type of scheme the unemployed person was a member of the effect on the state when these people reach retirement age, whenever that might be, will undoubtedly be a massive financial burden. the recession of the early 1990's will see a whole generation of people who previously thought that they were going to be adequately provided for in their retirement become, in differing degrees, a burden on the state at a time when the state is least able to afford it.85 for pension schemes where large numbers of members have become early leavers as a result of redundancy, large surpluses will accrue bringing to the forefront again the question of pension holidays, repayment of surplus to the company, and even more controversially of what happens to the fund of money should the company be purchased or taken over. 84. supra no. 8. 85. 1993 is the european commission's year of older people and will focus on employment and social issues for older people. the carnegie inquiry, launched by the carnegie u.k. trust in 1990 to look at the work and livelihood of people age 50 -75, published its report life, work and livelihood in the third age in april 1993. 21 governmental accountability, national development and the ombudsman: a commonwealth perspective john h atchard* the recent rapid and dramatic political changes in many countries have led to renewed calls for action to strengthen governmental accountability and to stimulate economic development. this applies particularly to developing nations. thus at the april 1990 bretton woods committee meeting, the world bank president listed better governance as the primary requirement for economic recovery in africa. this is reflected in the world bank's blueprint for africa entitled sub-saharan africa: from crisis to sustainable growth which highlights the need for accountability, participation and consensus building in order to achieve successful development. the leverage available to the west to induce such change is based upon the policy of political conditionality. this provides rewards in the form of economic and technical aid to democratic governments and to those which are seeking to introduce greater accountability and democracy. the corollary is that countries which are particularly bad cases of repression and abuses of human rights are penalised. as the british foreign secretary has stated, britain will favour "countries tending towards pluralism, public accountability, respect for the rule oflaw, human rights and market principles".1 of course, such a policy has always been present in relations between the west and developing nations. what is new is the explicitness of political conditionality and its extension beyond the issues of friendly relations and human rights to that of democratization. accountability is a central feature of this policy because arguably it leads to more open government and makes it more difficult for states to conceal human rights abuses.2 this means that there is a need for developing nations, in particular, to implement effective mechanisms of governmental accountability. the object of this article is to suggest that the office of the ombudsman can playa * senior lecturer in law, university of buckingham. 1. douglas hurd, "promoting good government" in crossbow autumn 1990, p. 4. the principle of linking aid to "good government" is perhaps debatable but has been recognised by the european community, the usa and the united kingdom. for a full discussion see k. tomasevski, "human rights violations and development aid: from politics towards policy", commonwealth secretariat, 1990. 2. see hurd, ibid., p. 5. 53 the denning law journal key role in this respect.3 it is also argued that certain common features are necessary if the institution is to make an effective contribution towards governmental accountability and national development in developing nations. the discussion focuses on the results of a study of the operation of the office of the ombudsman in 17 developing nations in the commonwealth.4 this was carried out by the author in 1991 as part of a commonwealth-wide study of statutory human rights bodies on behalf of the commonwealth secretariat human rights unit. it involved an analysis of replies to a detailed questionnaire which was sent to all ombudsmen in the participating countries together with information gleaned from their annual reports. the office of ombudsman the aim of the office of ombudsman is well-known.5 it is the pursuit of administrative justice in a manner which is confidential, informal and flexible. thus any person who claims to have suffered injustice at the hands of a government official may complain to the ombudsman free of charge. if the case is accepted, an investigation is undertaken in private. as a permanent, independent, statutory (and often constitutionally established) institution, the office is potentially a most effective investigatory body operating within although not being a part of government. this is because wide-ranging investigative powers give an ombudsman unique access to government documents and officials and allows for the development of personal contacts with high-ranking government officials which can often swiftly resolve a complaint. the development of the ombudsman in the commonwealth in 1962 new zealand became the first commonwealth country to establish an office of the ombudsman and as a result of its success an "ombudsman explosion" occurred.6 in 1966 tanzania became the first african country to establish the institution under the name of the permanent commission of enquiry (pce). in ghana, the 1969 constitution created the office but due to the later overthrow of the government, it was not until the passing of the ombudsman act in 1980that it actually became operational. other commonwealth mrican countries to establish the office are mauritius (1968), zambia (1974), nigeria (1975), zimbabwe (1980), 3. it should be noted that the terminology varies from country to country but for the sake of consistency, the term "ombudsman" is used throughout this article. 4. these are: barbados; ghana, guyana; india; jamaica; mauritius; namibia; nigeria; pakistan; papua new guinea; st lucia; solomon islands; swaziland; tanzania; uganda; zambia; zimbabwe. 5. i was somewhat troubled by the gender connotation of the word and considered using either "ombudsperson" or "ombuds". i was informed that most words in swedish are in the neuter gender and thus "ombudsman" can be either male or female. in any case, the word "man" cannot be simply dropped or replaced as it would change the meaning altogether. 6. sir guy powles, a former chief ombudsman for new zealand, has noted that people got to like ombudsmen and found them useful in dealing with professor wade's "powerful engines of authority": see g. powles, "citizen's hope: ombudsmen for the 1980s", 5 commonwealth law bulletin 522, at p. 523. 54 government accountability, national development and the ombudsman uganda (1986) and namibia (1990). the office of the ombudsman in swaziland represents the sole casualty in the commonwealth. it was established in 1983 but in 1987 was scrapped by the government. as is seen later, the reasons for its demise are important as they illustrate how not to organise and run the institution. in 1966 guyana became the first caribbean nation to establish the office. it was followed by trinidad and tobago (1976), jamaica (1978), st lucia (1979) and barbados (1981). in the pacific region, an office was established in papua new guinea in 1975. the solomon islands (1980) and western samoa (1988) then followed suit. on the indian sub-continent, the office of the wafaqi mohtasib (ombudsman) was established in pakistan in 1983 whilst the lokayukta, i.e. "peoples' procurator", was first established in maharashtra state in india in 1971 and now operates in twelve indian states. 7 thus the office of the ombudsman is firmly established in many developing nations of the commonwealth. it has proved to be extremely adaptable and operates in multi-party and one-party states, in states under military rule and in societies with radically different religious and ethnic backgrounds. its potential importance to developing nations was noted by the presidential commission on the establishment of a one party state in tanzania: "in a rapidly developing country, it is inevitable that many officials, both of government and of the ruling party, should be authorised to exercise wide discretionary powers. decisions taken by such officials can, however, have the most serious consequences for the individual, and the commission is aware that there is already a good deal of public concern about the danger of abuse of power. we have, therefore, given careful thought to the possibility of providing some safeguards for the ordinary citizen." the result was the establishment of the pce. professor s. a. de smith has rightly pointed out that, "an ombudsman cannot be bought off the peg: he must be made to measure."8 thus the institution has developed somewhat differently in individual commonwealth jurisdictions. however, it is argued that there are five fundamental elements required for an effective office: (1) an independent office; (2) accessibility for all members of the public; (3) an adequate jurisdiction; (4) adequate investigatory powers; (5) effective remedial powers. each of these elements is now critically examined. 1. an independent office as a former commonwealth ombudsman has rightly stated: "i do not think that it 7. see b. k. gupta, "a balance-sheet of state lokayuktas", (1984) 26jo. /nf. law/me., 122, 123. as yet there is no national ombudsman in india although its establishment has been sought for some years. the constitutions of antigua and barbuda; bangladesh; dominica; and the turks and caicos islands also provide for an ombudsman although, to date, none have been established. 8. mauritius legislative assembly sessional paper no.2 of 1965, para. 39. 55 the denning law journal is an overstatement to say that an ombudsman's office not properly budgeted, not properly staffed, ... and not properly backed by those who brought it into being, amounts to nothing more than a front and a facade."9 in this section, the challenge of establishing and maintaining an independent office is considered: (a) appointment process in an effort to avoid undue executive influence, the original concept of the institution was that the ombudsman would be appointed by or on the recommendation of the legislature. to significantly, the jurisdictions in the study have largely opted to exclude or curtail such involvement. thus in countries such as pakistan, uganda, mauritius and tanzania the appointment remains the sole responsibility of the head of state whilst in zambia, namibia and zimbabwe the president is merely required to consult with or to act on the recommendation of a judicial service commission.l1 several caribbean nations do retain some links with the legislature. thus in st lucia and trinidad and tobago the appointment is made by the head of state after consulting with the prime minister and leader of the opposition whilst in guyana the appointment is made by the president acting after consultation with the minority leader. however, even here there is no obligation on the head of state to follow any advice. there are several possible explanations as to why the legislature has ceased to play the major role in the appointment process. one is that by its very nature the work of the ombudsman gives him/her access to politically sensitive information. thus in relatively young and politically immature nations it is important that the appointee is politically acceptable to the head of state. in addition, the influence and prestige of the legislature in many developing countries is somewhat limited. accordingly, unless the ombudsman is seen to have the blessing of the head of state, it may be very difficult for him/her to get the necessary cooperation from government officials. whatever the merits of such arguments, it seems inevitable that executive involvement in the appointment process will continue. the task then is to seek an appointment procedure which will, as far as possible, still produce a suitable candidate. perhaps the most attractive approach is that of papua new guinea where the appointment is made by the president acting in accordance with the advice of a specially constituted ombudsman appointments committee. this body is made up of members of the judiciary, public service and parliament (including the leader of the opposition). similarly, the ombudsman in the solomon islands is appointed by the governor-general acting in accordance with 9. mr arthur maloney, qc quoted in the 5th annual report of the ombudsman of trinidad and tobago, p. 3. 10. in scandinavian countries, the ombudsman is elected by parliament itself. in new zealand, canada, australia, the united kingdom and hong kong appointments are made on the recommendation of their respective legislatures. ii. in practice, the traditionally strong executive influence over such commissions hardly points to a demonstrably independent appointment process. 56 government accountability, national development and the ombudsman the advice of a special committee comprising the speaker of the legislature, chairman of the public service commission and chairman of the judicial and legal service commission. the committee in papua new guinea is rightly viewed as "an ingenious device entrenched in the constitution not only to prevent possible abuse by the government in power regarding these important appointments but also to make sure that the members of the ombudsman commission are politically neutral and persons of high integrity and standing." 12 this encapsulates the essence of the appointment process, for without these characteristics the office is unlikely to gain the confidence of the public. (b) qualifications for appointment the study revealed a variety of views concerning eligibility for appointment as an ombudsman. in some jurisdictions there are specific qualifications for the post with the most common being that the incumbent must have legal qualifications. this is the position in ghana, namibia, zambia and some indian states. in others, experienced public servants are required. for example, in uganda, a person is qualified for appointment as inspector-general of government (i gg) when hel she has served in a field of discipline relevant to the work of the office for not less than seven years. in zimbabwe the qualifications for appointment are excessively wide. the incumbent must either have legal qualifications, or have been a permanent secretary of a ministry or a regional magistrate or in the opinion of the president "be a person of ability and experience and distinguished in the public life of zimbabwe." in contrast, several other jurisdictions place the emphasis solely on the calibre of appointee. for example, in nigeria the key criterion is "a high standard of integrity and probity exhibited in previous offices held", whilst in papua new guinea the chief ombudsman must be, in the opinion of the appointing committee, "a person of integrity, independence of mind, resolution and high standing in the community."13 whether specific qualifications are necessary is debatable for it is clear that the real need is to appoint a demonstrably independent and able individual, i.e., it is who not what the appointee is that is important. even so, in practice, most offices in the study reported that the majority of the past and present incumbents were either former judges or held legal qualifications. (c) term of office in most countries in the study the ombudsman has a fixed term appointment ranging from three years (e.g., nigeria and tanzania) to six years (e.g., papua new guinea). 14 almost invariably the appointment is renewable, in most cases at the sole behest of the head of state. exceptionally, in pakistan the wafaqi mohtasib 12. see quarterly newsletter of the ombudsman commission of papua new guinea, vol. i, p. 6. 13. organic law on the ombudsman commission, s.4(1). 14. this is only in the case of a citizen. a non-citizen holds office for three years only. 57 the denning law journal (ombudsman) is eligible to serve just one four year term. is it is not clear as to why such restrictions are imposed for arguably, a constant change of office-holder(s) potentially undermines the effectiveness of the office. this was recognised in zambia where the commission for investigations consists of the investigator-general and three commissioners. originally the latter served for three years and were then automatically replaced. this was found to be unsatisfactory because commissioners were required to relinquish office just when they had learnt enough and were able to give of their best. as a result, a 1986 constitutional amendment now permits a commissioner to serve continuously for up to six years. 16 the need for an ombudsman to develop solid links and "informal channels of communication" with the bureaucracy is invaluable if he/she is to be effective. this takes time and patience and arguably a more permanent appointment is warranted. this is rightly reflected in those jurisdictions which provide for a more permanent career structure. thus the ombudsman in ghana and namibia together with the investigator-general in zambia all hold office up to the age of 65 years.11 such a system is worthy of consideration by other states. (d) removal in most jurisdictions in the study the grounds and procedure for removal were similar to those pertaining to members of the judiciary. thus an incumbent is only removable for inability to perform the duties of office by reason of physical or mental incapacity or misconduct/misbehaviour. in the solomon islands, ghana and namibia the removal procedure is the same as that for a judge. in other countries, such as trinidad and tobago, st lucia, zimbabwe and mauritius, the head of state must act on the advice of a specially constituted tribunal.18 exceptionally, some jurisdictions require a complex procedure involving all branches of government. for example, in zambia, following the passing of a resolution by the national assembly to investigate the possible removal of the investigator-general, the chief justice must appoint a tribunal of enquiry. if such tribunal so advises, the president must remove the investigator-general from office. similarly, in some indian states, the removal of the lokayukta requires the holding of a formal judicial enquiry followed by the approval of each house of the state legislature. one unusual variant on the removal procedure is in pakistan where the president may unilaterally remove the mohtasib from office on specified grounds. in response, the mohtasib may "if he sees fit and appropriate to refute any charges" request an open public evidentiary hearing before the supreme 15. in uganda no term of office is specified for the inspector-general of government but proposed amendments to the enabling act will probably specify a defmite term. 16. constitution of zambia (amendment) act 1986. 17. indeed, in namibia the president may extend the retiring age of any ombudsman to 70 years. 18. in uganda the present law is silent on the matter but proposed amendments will provide a similar removal process. 58 government accountability, national development and the ombudsman judicial council. if this does not take place within a specified period, the m ohtasib is "absolved of any and all stigma whatever" .19 there are two jurisdictions which have quite unsatisfactory provisions. in tanzania the president, acting in his sole discretion, may remove the ombudsman without giving any reasons.20 in nigeria the incumbent is either removed or is "requested" to withdraw by the armed forces ruling council "for conduct prejudicial to the good name of the office" following a report by the chief commissioner. such provisions give an incumbent no protection whatever from arbitrary removal and are always liable to be abused. it is important that the tenure provisions for an ombudsman are satisfactory because of the ever present danger of political pressures being brought to bear on him/her during an investigation. perhaps as a sign of the calibre of appointees, on only one occasion has an ombudsman actually been removed from office. this was in 1988 when the oyo state commissioner in nigeria was removed following a report by the chief commissioner to the armed forces ruling council.21 nevertheless, a clearly articulated removal system ensures that as far as possible an incumbent is protected from arbitrary dismissal. (e) funding and staffing the provision of an independent budget is essential in order to maintain the confidence of the public. this point is highlighted in the case of zimbabwe where funding for the office (except the salary of the ombudsman) comes from the ministry of justice. as the ombudsman has noted, this situation tarnishes the image of the office as an independent body in the eyes of the public and causes problems when investigations are undertaken into complaints against the ministry itself. in addition, the lack of an independent budget prevents an incumbent having control over the running and development of the office. indeed, in his 1990 annual report, the ombudsman for barbados registered his own complaint over the apparent refusal of the government to acknowledge the independence of the office by presenting its annual estimates of expenditure as a sub-head of a ministry rather than under its own head of expenditure as was the case of the judiciary and legislature. the persistent failure of the ministry of finance to reply to the request of the ombudsman over this matter was condemned as "either a case of discourtesy in not issuing a reply or a case of refusal to acknowledge the independence of the office as conferred by parliament."22 in practice, only a bare majority of ombudsman in the study controlled their own budgets and, rightly, this was widely viewed by them as being unsatisfactory. the most satisfactory arrangements are either (a) to pay the expenses of the office out of monies 19. see establishment of the office of wafaqi mohtasib (ombudsman) order, 1983, s.6(2). 20. the constitution of the turks and caicos islands, s.65, also provides that the ombudsman may be dismissed by the governor-general acting in his discretion. 21. at the time of writing (august 1991) the removal of the acting ombudsman in zimbabwe was also being considered by a tribunal. 22. annual reporr 1990, p. 4. 59 the denning law journal appropriated for that purpose by the legislature; or (b) to give the office an independent budget, as is the case in pakistan. to be effective, the office also requires adequate staffing levels. in the study, the size of offices varied considerably. for example, in pakistan there are 37 investigating officers who are assisted by 415 supporting staff appointed by the mohtasib. similarly, in nigeria there are a total of 199 investigative officers. in contrast, offices, such as those in guyana and mauritius are staffed by a single ombudsman plus a few supporting staff. clearly the size of the population will help determine staffing levels, but even so, several ombudsman offices reported serious operational difficulties due to acute staff shortages. thus the ombudsman in zimbabwe has complained that "serious staffing inadequacies have persistently and frequently hampered the effective discharge of our role and functions. "23 similarly, in 1989 a former ombudsman of guyana, bemoaned the fact that in guyana" ... the ombudsman's office is understaffed and ill-equipped to deal with complaints, secondly there are no investigators so that the work devolves totally upon the shoulders of the person occupying the office ... since there is no investigative staff, all work must be done through correspondence." the current incumbent has also noted that over a decade before, the first ombudsman expressed similar thoughts but to no avai1.24 perhaps this problem can help explain, at least in part, the reason why the number of complaints received by the guyanese ombudsman dropped by over 50%between 1983and 1989. in trinidad and tobago the ombudsman has also pointed out that the staff shortage in his office contravenes section 92 of the constitution "which is clear, precise and free from ambiguity [and] states that 'the ombudsman shall be provided with a staff adequate for the efficient discharge of his functions'. "25 complaints over lack of adequate resources including inadequate accommodation and transportation were also frequently made. overview the need for a demonstrably independent ombudsman is fundamental to the success of the office, a point neatly illustrated by the case of swaziland. here the incumbent also held the post of secretary to the liqoqo (supreme council of state), a position which was clearly incompatible with his position as ombudsman and one which seriously tarnished the image of the office in the eyes of the public. the failure to establish a clearly independent office contributed greatly to the eventual failure of the ombudsman there.26 overall, the study showed that executive involvement in the office is now a fact 23. fifth annual reporr of rhe office of rhe ombudsman, zimbabwe, p. 2. such a complaint has been a regular feature of the annual reports. 24. see reporr of the ombudsman 1989 (guyana), p. 2. 25. twelfth annual reporl of rhe ombudsman of trinidad and tobago, p. 3 (emphasis in the original). 26. see j. ayee, "the ombudsman experience in the kingdom of swaziland: a comment", [1988] verfassing und rechl in ubersee 8, at p. 14. 60 government accountability, national development and the ombudsman of life and that unless adequate safeguards are in place, it is liable to be turned into a meaningless facade by the executive. even with a satisfactory appointee, the study also indicated that there remains a wide gap between the resources made available to the office and those needed to maintain efficiency. the view of the chief commissioner of the pcc in nigeria that only "the will of the ombudsman sustains him on the job"27 reflects the view of several office-holders. the clear message is that it is impractical to expect the office to be effective unless it is properly funded and staffed. 2. operation of the office the ease with which complaints can be lodged is one of the features ofthe office. in the study, an aggrieved person was invariably only required to make a written complaint to the ombudsman and in practice, even oral complaints were often accepted.28 all jurisdictions in the study had a time limit for receipt of complaints of one or two years from the date on which the complainant first knew of the facts which gave rise to the problem. again the ombudsman frequently exercised his/her discretion to accept out of time complaints.29 the challenge of ensuring that the office serves all members of society was highlighted in the first annual report of the pce in tanzania which noted that only privileged individuals were obtaining significant practical benefits from the commission. this point was echoed by the then president of tanzania, julius nyerere, who noted that: "we must not forget the permanent commission [of enquiry] receives complaints only from the most literate, aware or energetic and courageous of our citizens. "30 part of the problem concerns lack of accessibility to the office. in countries where communications are difficult, there is a danger that only those living close to the office or with adequate transportation will be able to use it. this point is well illustrated by the situation in mauritius where between 1985 and 1989 the island of rodrigues with a population of 37,538 produced just four complaints. as the ombudsman of mauritius wryly commented: "either the population of rodrigues is a very contented one or it is not sufficiently aware of the existence of the ombudsman institution." a tour of the island was promised in order to make the office more accessib1e.31 again, in zimbabwe the ombudsman has noted with regret that financial constraints have prevented any visits to the rural areas, resulting in virtually all complaints coming from those living in the capital city.32 this is in sharp contrast to other offices in the study which reported that the ombudsman made visits throughout the country. for example, the 27. 14th annual report public complaints commission, 1989, nigeria, p. 62. 28. e.g., where the complainant is illiterate. 29. e.g., where a complainant was previously unaware of his/her right to make a complaint. 30. j. nyerere, freedom and development/uhuru na maendeleo: a selection from writings and speeches 1968-73 (dar es salaam, 1973), p. 182. 31. annual report; 1989, p. 2. 32. see, in particular, the 6th annual report of 1989. 61 the denning law journal ombudsman in trinidad and tobago visits tobago on a fortnightly basis whilst in maharashtra state, india, the practice of holding sittings at divisional and district offices is well established. such visits are considered extremely beneficial as they provide an opportunity for a direct dialogue with complainants and the possibility of swift redress of their grievances. similarly, in both tanzania and zambia tours have helped to create more awareness of the existence of the office in the general populace and have fostered positive links with local officials. in some of the larger jurisdictions, such as pakistan and nigeria, the establishment of regional offices has also improved access to the office. in an effort to assess the current situation, the study specifically sought to establish a profile of complainants. the results show that the majority of complainants were urban dwellers and mostly from cities where the office of the ombudsman was actually based. there was also some evidence of a link between increased accessibility to the office through tours by the ombudsman and the like and a rise in the number of complaints from rural dwellers. once again, this highlights the need for an ombudsman to strive to make the institution accessible to all. more encouragingly, the majority of ombudsmen reported that the actual complainants themselves came from a cross-section of society or as one office put it "from illiterates to professors". the importance of becoming a truly national institution is illustrated by the situation in swaziland. here few people knew of the existence of the office and fewer still sought to utilise its services. indeed in the three years of operation, it received just 40 complaints. as ayee remarks: "this might suggest some disappointment with or apathy to the institution. it is therefore tempting to say that knowledge and use of the office was very much the preserve of a tiny majority, the urban and literate population."33 this factor, together with the one noted earlier, largely contributed to the scrapping of the office. the paucity of complaints is a concern for many ombudsmen and in fact the study showed that no offices in the study received annually more than two complaints per 100,000 of the population. overview on the face of it, the ease of access to the ombudsman should make the office extremely attractive to the public. the continuing low level of complaints is thus a cause for concern and clearly reflects the ongoing struggle of the offices to prove their value to the public. even so, it must be remembered that statistics are not the sole indicator of the "effectiveness" of the office, an issue which is explored in the final section. the wide range of backgrounds of complainants is encouraging although much still remains to be done. the urban bias in the figures remains a difficulty. this is almost certainly a legacy of the organisational problems discussed earlier. they emphasise once again that the creation and maintenance of an effective national institution requires the provision of the necessary resources. 33. supra n. 26, at p. 14. 62 government accountability, national development and the ombudsman in order to establish the legitimacy of the ombudsman it is imperative that members of the public and government officials are fully aware of the operations of the office. this is by no means easy in developing nations with relatively poor communications but many ombudsmen have made determined efforts to stimulate public awareness as to the role and function of the office including mounting modest advertising campaigns and seeking media coverage of reports. for example, in zimbabwe all courts and government offices have a general information leaflet on the ombudsman written in the three national languages. in nigeria the pcc has launched "enlightenment campaigns" involving interviews with the media, advertisements in newspapers and the provision of complaint boxes in all local government areas. some offices have embarked on campaigns targeted at young people. in trinidad and tobago, for example, schoolleavers are frequently addressed by the ombudsman because they are perceived as an articulate group who can influence their parents and other adults and can tell them what matters are handled by the office. in addition, this group comprises prospective employees or employers who ought to be made aware of the concept of ombudsmanship.34 in 1990 an innovative idea was developed in papua new guinea where the ombudsman commission launched a quarterly newsletter. in the introduction to it the chief ombudsman notes that: "as the chief watchdog of the nation we wish to keep the people of papua new guinea informed through this publication of the functions and the working of the commission highlighting its achievements and failures during each quarter and providing the reasons for any such failure where possible. " such activity rightly recognizes that an ongoing communication programme aimed at sensitizing the public as to the role of the ombudsman contributes greatly towards the success of the office. another potentially useful source of publicity is the annual report which each office is obliged to publish and send to the legislature. in theory these are of considerable importance because they help publicise the office to policy makers, legislators and the public; clarify general expectations of the bureaucracy in its dealings with citizens; and identify the criteria employed in testing those decisions. whilst it is not possible to analyze such reports here, one comment is appropriate. as at june 1991more than 50%of the offices in the study had failed to produce an annual report for 1989 or later whilst one office had produced just a single report in the past nine years. delays in producing reports are sometimes inevitable but the negative effects that this has are enormous. the efforts to publicise the office are laudable and have resulted in increased public awareness of the work of the office. this alone is not enough unless the 34. see annual report of the ombudsman of trinidad and tobago 1989, p. 7. 63 the denning law journal ombudsman is empowered to investigate those areas of government which are of most concern to complainants. as is seen in the next section, this is by no means the case. 3. jurisdiction all the ombudsmen in the study were empowered to investigate alleged cases of injustice as a result of "maladministration" by government officials.35the term itself has no universal meaning although a useful working definition comes from pakistan where it includes: (i) a decision, process, recommendation, act of omission or commission which: (a) is contrary to law, rules or regulations or is a departure from established practice or procedure, unless it is bona fide and for valid reasons: or (b) is perverse, arbitrary or unreasonable, unjust, biased, oppressive or discriminatory; or (c) is based on irrelevant grounds; or (d) involves the existence of powers or the failure or refusal to do so for corrupt or improper motives, such as bribery, jobbery, favouritism, nepotism, and administrative excesses; and (ii) neglect, inattention, delay, incompetence, inefficiency and ineptitude, in the administration or discharge of duties and responsibilities. in zambia a former investigator-general has also given a useful list of examples of such conduct: "the abuse of authority or maladministration ... may take various forms, for example, corruption, favouritism, bribes, tribalism, harshness, misleading a member of the public as to his rights, failing to give reasons when under a duty to do so, using powers for the wrong purposes, failing to reply to correspondence or causing unreasonable delay in doing desired public acts."36 this flexible approach is surely right because, in the abstract, an ombudsman fills a need which other agencies and bodies are largely unable to fill, and accordingly his/her jurisdiction must be broadly construed.j7 coupled with wide investigatory powers (see infra) the scope of any investigation is potentially enormous. the study showed that there was a marked difference as to the subject matter of investigations but that in recent years some offices have expanded their 35. in practice certain key officers and authorities are frequently not subject to investigation. these invariably include the head of state and! or government and members of the judiciary and cabinet. 36. see annual report of the commission for investigations 1975, at p. 3. 37. this view has the powerful support of sir guy powles, see n. 6 supra, p. 524. 64 government accountability, national development and the ombudsman operations in new directions which may help lead to increased governmental accountability. five areas are of particular interest. (aj human rights violations by members of the security forces only a bare majority of ombudsmen in the study were permitted to investigate complaints by members of the public against the security forces.38 this is regrettable because not only did many offices regularly receive such complaints but also in practice these bodies are frequently responsible for some of the worst human rights violations. the two youngest offices in the commonwealth provide excellent examples of the potential scope of this jurisdiction. in uganda, the i gg may conduct and inquire or order an investigation into any allegation of a violation of human rights including cases of detention or torture. in an effort to reinforce his powers, the igg recently recruited a former highranking army officer on the basis that his personal contacts and knowledge would facilitate inquiries into complaints against members of the security forces. assuming this is not a mere "window-dressing" exercise, the appointment may result in genuine accountability of the security forces. similarly, in namibia the ombudsman has the duty to investigate complaints from any inhabitant of namibia concerning violations of fundamental rights by government officials (both national and local).39 it is significant that here the office of the ombudsman is perceived as an integral part of the constitutional structure which seeks to prevent a repeat of the widespread human rights violations perpetrated by the former south mrican administration. the prohibition on investigations into security forces has been defended on the grounds that they "might have the result of inhibiting [their] activities, much to the detriment of the state". 40such a view is unconvincing for why an investigation into complaints should "inhibit" security forces operations is only explicable on the basis that such activity was potentially unlawful and government was anxious to conceal such actions. in reality, there are several advantages of an investigation by the ombudsman into such matters. first, individuals can have their allegations fully examined by a body which has wide-ranging investigative powers including the right to inspect all relevant documents and to question all those involved. however the confidential procedure prevents the investigation turning into a potential "trial by the [western] media". as gering has rightly noted: "the modus operandi of the ombudsman is often more appropriate for the protection of detainees and the handling of complaints involving state security than are those of the courts."41 secondly, practice has shown that the ombudsman is even-handed 38. it was far more common for the ombudsmen to be able to investigate complaints by members of the security forces concerning terms and conditions of service. 39. the only "officials" specifically excluded are judges and judicial officers. does this mean the ombudsman can investigate a complaint against the president or prime minister? 40. see the statement of the zimbabwean minister of justice in parliamentaty debates, 18 june 1982. 41. r. gering, "legal institutions and human needs", (1974) 37 tydsk rif vir hedendaagse romeins-hollandse reg 274, pp. 287-89. 65 the denning law journal in his/her consideration of cases and determines each complaint objectively. thus a government need have no fear of a vendetta against it. indeed the patient development of an excellent working relationship with government officials enhances the potential for the carrying out of meaningful investigations. thirdly, the ombudsman can reinforce public confidence by an impartial and independent examination of complaints. this will reflect well on the government in that it will be seen as being prepared to protect its citizens against abuses of individual freedoms. of course, much will depend upon the "independence" of the ombudsman himself and the extent to which government is prepared to allow him to operate in sensitive areas. however, this is a problem faced by all bodies investigating such matters. fourthly, fear of publicity and reprisals against aggrieved persons is a very real possibility and may dissuade many from taking legal action. further, even if a judicial determination of the matter were attempted, it is often impossible to adduce sufficient evidence to satisfy a court. the flexible and confidential investigative powers of the ombudsman overcomes such problems. in practice the ombudsmen in zambia, nigeria, barbados, ghana and tanzania have always had jurisdiction over the activities of the security forces.42 although some of these countries have experienced acute security problems, there is no indication that this jurisdiction has led to any security violations or excessive number of complaints. the importance of such a jurisdiction is illustrated by the fact that in zambia, for example, complaints against the security forces (including the police) have sometimes accounted for over 25% of all complaints.43 perhaps the constitutional commission in ghana expressed the point best when it noted that the inclusion of the security forces was "because the constitution ... contemplates a state in which the democratic rights of every citizen are legally guaranteed and protected."44 without the ombudsman, many would not be able to exercise those rights. (b) investigating corruption corrupt practices by government officials hinder development and victimize persons both individually and collectively. it is a cancer which affects many 42. there was some confusion over the exact terms of the legislation in nigeria with the chief public complaints commissioner stating in 1977 that the commission was not empowered to entertain complaints against the security forces: see a. sule, "the nigerian public complaints commission", (1977) 3 commonwealth law bulletin 312, at p. 316. however, akanle has convincingly demonstrated that this approach was the result of an incorrect reading of the relevant legislation: see o. akanle, "self-restraint or abdication? a note on the investigatory powers of the nigerian public complaints commissioner", (1978) i0 zambia law jo. 70, at p. 73. 43. on one occasion, a senior police officer in the zambia police force demanded free entrance to a dance at a restaurant for himself and his six companions. this was refused and he accordingly sent members of the national police force to stop the dance and close the restaurant. the investigation concluded that there had been a very serious abuse of authority and the president directed that the officer be dismissed from the force: case 216/75, annual report of the commission for investigations 1975. 44. proposal of the constitutional commission for a constitution for ghana to the members of the constituent assembly, 1968, no. 495. 66 government accountability, national development and the ombudsman developing nations and, as the national resistance movement government in uganda has rightly noted, throughout africa there is a "problem of corruption, particularly bribery and misuse of office to serve personal interests."45 the seriousness of the problem has led the united nations economic and social council to seek administrative and regulatory mechanisms to eliminate such practices.46 one such mechanism is to make use of the ombudsman. the study showed that the ombudsman in ten jurisdictions can investigate corrupt practices by government officials. for example, in uganda the igg is charged with combating corruption by, inter alia, examining the practice and procedures of public bodies (including parastatals) "in order to facilitate the discovery of corrupt practices and secure revision of procedures which may be conducive to [such] practices", investigating allegations of corrupt practices and fostering public support against corruption. similarly, in namibia the ombudsman is required to "investigate vigorously all instances of alleged or suspected corruption and the misappropriation of public monies by officials."47 the advantage of using the office of the ombudsman here is that as a high profile "national institution" it is potentially better able to resist improper pressure from the executive than other bodies and is thus better equipped to undertake meaningful investigations. operationally it can perform an auditing function thereby stimulating and making use of the flow of information that is essential to identifying and combating dishonesty in government. in addition, as well as being a screening point for citizen's complaints, its prestige and reputation for objectivity makes it an obvious point of contact for the reporting of wrongdoing by government officials. the confidentiality of its procedures gives the office an added advantage, particularly as this assists in countering possible intimidation of informants and complainants. in terms of cost efficiency, it is also useful to have a unified office rather than a separate anti-corruption body. in addition, some investigations are inevitably inter-related so that a unified investigatory procedure is arguably more convenient, efficient and time-saving. although some practical considerations may pose problems in exercising this jurisdiction to the full,48it is essential that the terrible scourge of corruption in developing nations is tackled using every possible mechanism and in this respect the contribution of the ombudsman is potentially significant.49 45. national resistance movement 10-point plan: point no.7. 46. see practical measures againsl corruplion prepared by the secretariat for the eight united nations congress on the prevention of crime and treatment of offenders held in havana, cuba in august/september 1990, document a/conf.144/8, p. 4. 47. section 7, inspector-general of government statute and article 90(£), namibian constitution respectively. 48. particularly lack of resources to fully investigate complex cases. 49. that the ombudsman can successfully investigate corruption is illustrated by the fact that the igg has regularly reported instances of corruption by government officials including members of the national resistance army. the president has acted on reports of corruption by disciplining members of the nra and radically reshuffling the nra leadership: see afn'ca confidemial vol. 30, no. 25 and vol. 31, no. 19. 67 the denning law journal (c) environmental issues many developing countries face serious environmental problems caused by the dumping of hazardous waste, over-exploitation of land, de-forestation, pollution and the like. perhaps in recognition of the dangers attaching to such activities, most offices in the study may investigate such matters. in namibia, for instance, there was concern over the over-exploitation of natural resources during the colonial period. in an attempt to prevent this recurring, the ombudsman now has the duty of investigating complaints into "the over-utilization of living natural resources, the irrational exploitation of non-renewable resources, the destruction of ecosystems and the failure to protect the beauty and character of namibia."50 investigations are not apparently limited to government activities and this gives the ombudsman wide-ranging investigative powers into an area of growing importance. a useful example of the exercise of this power comes from trinidad and tobago. here an investigation by the ombudsman found that emissions from a sugar factory were causing damage to health and property over a wide radius. recommendations to abate the nuisance later led to improvements being effected to the factory. potentially this jurisdiction represents an important part of the work of the office. in view of both the serious consequences of pollution and the like and the large numbers of persons potentially affected thereby, it is particularly important that an ombudsman be in a position to take swift action to curb the problem. (d) independent investigations the majority of people in developing countries still suffer from ignorance of their legal rights and remain extremely susceptible to governmental abuses of power. 51 in addition, the transportation and communication problems discussed earlier often make it impossible for a person to lodge a complaint. thus it is clearly unacceptable to predicate action solely upon the receiving of a complaint for an ombudsman must "not just wait for complaints to be brought to him, but must go out to unearth corruption and maladministration whether the public complains or not."52 all bar three of the countries in the study have this power and some utilise it frequently. 53 indeed, in trinidad and tobago about 25% of investigations are undertaken in this manner. frequently cases are investigated as a result of a report in the newspapers/mass media. in fact, in maharashtra state, the lokayukta can act even on an anonymous complaint or information gathered from any other source if he/she is prima facie satisfied that there is some substance in the 50. article 91(d), namibian constitution. 5!. see, e.g., the report of the secretary-general on the implementation of the declaration of basic principles of justice for victims of crime and abuse of power, united nations document e/ac.57/1990/3, 15 december 1989, paras. 5-6. 52. general information on the office of the inspecwr-general of government (uganda), p. 7. 53. zambia, zimbabwe· and namibia. 68 government accountability, national development and the ombudsman allegation and it is in the public interest that an investigation should be carried out. such an approach resolves any problems over the locus standi of complainants and rightly focuses attention solely on the nature of the complaint. in practice, many ombudsmen reported that this is a useful and effective power, with several stating that it was especially useful in cases of alleged corruption or environmental hazards. (e) encouraging systemic improvements in administration a power to pursue long-term investigations is potentially of considerable value because it enables the ombudsman to analyze recurring problems of administration. the only office in the survey which specifically provided for this jurisdiction was pakistan where the mohtasib has the power to undertake research with a view to eradicating the root causes of maladministration, and in particular corrupt practices. elsewhere, efforts aimed at encouraging systemic improvements continue. for example, in trinidad and tobago, the ombudsman makes regular (and frequently unannounced) visits to custodial institutions to monitor prison administration and hear complaints from prisoners. in several annual reports the ombudsman has commented adversely on prison conditions, particularly as regards overcrowding, charges of brutality against prison personnel, lack of medical treatment and poor diet, and has called for a complete review of penal policy. 54 similarly, the ombudsman in jamaica has sought out possible "institutionalized victims" of public maladministration by visiting prisons and childrens' homes. in view of the widely acknowledged weaknesses in the public service of many developing nations, this jurisdiction represents an extremely useful extension to the power of the ombudsman. overview the precise jurisdiction of the ombudsman will inevitably vary from country to country. even so, the office can only make a real contribution to governmental accountability if an ombudsman is permitted to investigate those issues which are of most concern to the public. the importance of this point was reflected in the fact that in some countries in the study over 40%of all complaints were rejected by the ombudsman as being "outside jurisdiction". in some cases the ombudsman was undoubtedly the inappropriate forum. 55 however many were rejected due to an unnecessarily limited jurisdiction and clearly this must be rectified in order to meet the needs of the people. this would enable the office to assist not only those who are victims of incompetent and thoughtless officials but also victims of deliberate abuses of power and the like. in determining the scope of the jurisdiction of the office, its relationship with the courts must be considered. if its main task is that of remedying individual 54. see, e.g, 10th annual report (1987), pp. 10-11. 55. e.g., complaints concerning the outcome of court cases and police investigations. 69 the denning law journal grievances caused by neglect, incompetence and the like within the bureaucracy then the institution performs a separate function to that of the courts. however, if it is also empowered to take positive action to remedy wrongs then its functions overlap those of the courts as it becomes a means of obtaining an expeditious and cheap disposition of justice. some jurisdictions, such as zimbabwe, seek to prevent an overlap by prohibiting the ombudsman from investigating a complaint "unless it does not appear that there is any remedy reasonably available by way of proceedings in a court. "56 this fails to take into account the lack of access to justice for many people in developing nations. the complexity of the legal process, the absence of effective legal aid schemes and/or the non-availability of lawyers invariably prevents the majority of people enforcing their legal rights. this is particularly serious as regards the protection of fundamental rights for it is trite that these are only of any real value if they are enforceable in practice. thus, for example, the igg in uganda is specifically empowered to investigate complaints despite the availability of a judicial remedy where this is considered appropriate. namibia has also adopted an innovative approach towards the protection of fundamental rights. here the ombudsman may provide legal assistance or advice to those seeking to enforce or protect a fundamental right through the courts. 57 in view of the practical difficulties faced by many people in obtaining a judicial remedy, to give the ombudsman an overlapping jurisdiction in some cases is both imaginative and appealing and is worthy of consideration in other jurisdictions. 4. investigations all the jurisdictions in the study retained the "traditional" investigative powers. thus invariably, investigations were undertaken in private and the procedure was inquisitorial. the ombudsman may require any government official to furnish information or to produce documents relevant to the investigation and, if necessary, officials may be interviewed. in most jurisdictions the ombudsman also has the power to summon and examine witnesses at a formal inquiry and to have any witness committed for contempt. in addition, the failure on the part of any official to comply with an order of the ombudsman without reasonable cause constitutes a criminal offence. few offices reported any use of these powers although in papua new guinea, a member of parliament and his wife were successfully prosecuted by the ombudsman commission in the national court for failing to attend the commission when summoned to do so. both were.fined. in general, offices reported a high degree of co-operation by public servants. this is essential to the success of the institution, a fact epitomised by the experience of the defunct swazi ombudsman who lamented that: "some officers have already exhibited a tendency to regard the ombudsman 56. section 108(1), constitution of zimbabwe. 57. article 25(2), namibian constitution. 70 government accountability, national development and the ombudsman and members of staff with hostility, resentment and suspicion. the officials in question have openly spoken against the office and some of them have already denounced its existence and advocated its abolition. "58 several ombudsmen noted that agencies with potentially hostile clients (for example agencies with law enforcement or revenue collection functions) were more likely to react defensively to an investigation. one ombudsman suggested that one factor which produces such attitudes is that some agencies tend to become inward-looking and thus develop a corporate attitude that keeps them out of touch with contemporary administrative standards, especially external accountability. this emphasises the need for the office to undertake research on systemic improvements to enable managers to identify and rectify deficiencies in their agencies or in the programmes that they administer. 5. post-investigation powers invariably, the ombudsmen in the study did not exercise any judicial or quasijudicial function for the incumbents had no enforcement powers and could only make recommendations to rectify an injustice. such recommendations included: asking for a review of the procedure which led to the grievance complained of; making an ex gratia payment to make good to the complainant expenses incurred or financial loss suffered; or sending an apology to the complainant. in practice the study showed that in the majority of jurisdictions recommendations were normally followed. 59 even so, this was subject to considerable variation. thus st lucia, trinidad and tobago and mauritius reported that virtually all recommendations were accepted by the offending bodies. in contrast, the pcc in nigeria stated that in about 25% of cases recommendations were ignored by the offending bodies whilst in guyana the figure was around 50%. the problem of non-compliance with recommendations raises the issue as to whether the ombudsman should have any enforcement powers. the argument against this is that the power of recommendation is fundamental to the operation of the office because it allows the ombudsman to proceed at a more informal level and manage a very much larger case load because the ultimate decision rests with the agency and not with the ombudsman.6o it is also maintained that "the inability to order change represents, paradoxically, the central strength of the office. it requires that recommendations are based on a thorough investigation of all facts, scrupulous consideration of all perspectives and vigorous analysis of all issues. through this application of reason, the results are infinitely more powerful than those achieved through coercion."61 these views are reflected in the study where 58. kingdom of swaziland ombudsman annual report 1985, p. 13. 59. if a recommendation was not complied with, the matter was referred to the head of state who then determined the appropriate action (if any). 60. see, e.g., commonwealth ombudsman in australia: annual report 1989-90, p. 3. 61. see, the ombudsman of british columbia annual report 1989, p. 17. 71 the denning law journal the majority of ombudsmen expressly rejected the need for such powers. even so, in recent years several offices in the study have obtained additional powers with which to combat instances of maladministration. for example, in namibia, the ombudsman can bring proceedings for an interdict or other suitable remedy "to secure the termination of the offending action or conduct or the abandonment or alteration of the offending procedures. "62this provides citizens with a direct, speedy and effective protection from abuses of power by intransigent government officials. this is especially useful in cases requiring urgent action and complements the independent investigatory power. in addition the ombudsman may challenge the validity of any statutory provision if the offending action or conduct "is sought to be justified by subordinate legislation or regulation which is grossly unreasonable or otherwise ultra vires."63 this power is of particular interest because it means that subordinate legislation becomes subject to critical review and is a safeguard which is so often missing in other developing countries. the wide-ranging investigations of the ombudsman may also uncover criminal conduct on the part of some government officials. in such circumstances the namibian ombudsman may refer the matter to the prosecutor-general with a view to prosecuting the offender(s).64the mohtasib in pakistan also has a useful enforcement power in that he/she may award reasonable costs and compensation to an aggrieved party for any loss or damage suffered on account of maladministration. this is recoverable from the faulty public servant or agency. whilst such provisions are useful they do have considerable resource implications which would prevent their wholesale use. the real solution to the problem of non-cooperation probably lies in the attitude of the executive. if a clear indication of support for the office is forthcoming, particularly from the head of state, then this will greatly enhance the status of the ombudsman and make it more difficult for officials to ignore recommendations. without such support much of the credibility of the office is lost. for example, in zambia, a gross abuse of authority by a junior minister led to the commission for investigations recommending his dismissal. the president, without giving any reasons, refused to endorse the recommendation and decided to issue a reprimand instead.65 in such circumstances, it is not unreasonable for public officials to disregard unpopular recommendations, safe in the knowledge that the head of state will protect them. in some jurisdictions the ombudsman may take action prior to making a recommendation in order to prevent officials attempting to frustrate an investigation (for example, by intimidating or harassing a complainant) or continuing an abuse of power (for example, a continuing failure to pay a salary or pension). a vivid example ofthe importance of this power comes from tanzania. 62. article 91(e) (dd), namibian constitution. 63. article 91(e) (ee), namibian constitution. 64. this approach also has the support of the igg in uganda. 65. case 89/75, annual reporr octhe commission for investigations 1985, p. 38. 72 government accountability, national development and the ombudsman here a complaint was lodged with the pce that "seven people were locked up ... the person who locked them up had no power under any law to detain anyone for more than forty-eight hours, yet the commission received the letter of complaint after the persons had been in custody for a week. the commission could do nothing to get them out. they continued to be in the lock-up for a long time after. surely something must be done to remedy this."66 such a problem can be dealt with in zambia, for example, for where it appears to the commission for investigations that any of its powers are likely to be frustrated by any person to whom the act applies, it "may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of conducting any investigation. "67 this is an uncommon power amongst the offices of the ombudsman in the commonwealth and, on the face of it, contradicts the essentially advisory role of the office. in fact this is not the case because the issue concerns the facilitating of an investigation rather than the enforcement of a recommendation. the problem posed in tanzania is by no means unique and indicates that a preventative role for the ombudsman is both feasible and helpful. assessing the effectiveness of the ombudsman the public service in many developing nations has grown bloated and inefficient and is frequently a breeding ground for nepotism, tribalism and corruption. this inevitably hinders national development. thus western donor countries rightly emphasise both the importance of governmental accountability and the need to develop structures designed to strengthen it. the present study has sought to examine whether the office of the ombudsman can and does play an effective role in this respect. in theory, the unique advantages of the office ofthe ombudsman means it has the capacity to help improve governmental accountability. indeed the office is potentially more significant in developing nations because of the lack of alternative avenues of redress available to the citizen. the question is whether this is achieved in practice. there are several possible levels of analysis here. the adoption of a purely statistical approach shows that the offices in the study received remarkably few complaints and that the severe restrictions on the areas for investigation ensured that many of these are rejected for lack of jurisdiction. curiously, the statistical data itself was viewed very differently. thus in some jurisdictions, an increase in the number of complaints was taken as an indication of the "success" of the office and accordingly, any decline in numbers was viewed as a cause for concern. conversely, in other jurisdictions a fall in the number of complaints was attributed to a reduction in bureaucratic inefficiency thanks to the effectiveness of the office. given the difficulties under which many offices are currently operating, this latter 66. annual reporf of the permanent commission of enquiry, 1967-68. 67. commission for investigations act (chapter 183 laws of zambia), s.11. 73 the denning law journal view is surely overly optimistic. overall, the indications are that at this level of analysis, the office of ombudsman is currently of only limited importance. several ombudsmen rightly asserted that it is wrong to judge the achievements of the office simply using a statistical analysis, arguing that broader tests are needed. as the ombudsman for barbados has noted: "what the figures ... cannot show is the number of persons who might have become aggrieved and would have increased those figures if some of the various departments and institutions had not taken heed of the outcome of previous investigations to which they might have been subjected and subsequently improved their procedures and practices."68 this view is echoed elsewhere and as one chief ombudsman has noted: "probably the most significant statistic providing a pointer to the effectiveness of the office is one which is not found in the report[ s] and one which cannot be computed, namely, the number of potential complaints which do not reach the office simply because its existence acts as an incentive for the organisations coming within its jurisdiction to deal with matters which might otherwise be brought to our notice. it is evident ... that some departments and local authorities have progressively modified and improved their own procedures for the handling of grievances, in some cases instituting formal review and appeal machinery for this purpose. "69 it is difficult to assess the validity of such assertions although they certainly reflect the views of several ombudsmen in the study. inevitably, much depends upon the extent to which government officials are prepared to co-operate with the ombudsman and to implement his/her recommendations. as noted earlier, in practice, this largely hinges upon the attitude of those in the highest echelons in government towards the institution. a similar comment might be made concerning the effectiveness of independent investigations of the ombudsman. in any assessment of the office, it should not be forgotten that it is also an important protection for government officials against unfounded, malicious or unfair attacks. indeed the study indicated that in many cases officials were found to have acted properly. as the ombudsman in mauritius pointed out: "it must not be believed that every time the ombudsman receives a complaint this means that the administration has gone wrong somewhere. the ombudsman will certainly poke his nose into the actions of the administration but he will definitely identify, after investigation, which complaints are frivolous or unjustified and reject them. he will thus act like a 68. annual report 1990, p. 6. 69. report of the new zealand ombudsman 1979. 74 government accountability, national development and the ombudsman shield for the administration as the investigation is done for the benefit of both the administrateur and the administre. therefore, although the ombudsman is often referred to as the citizen's defender, it would be wrong to call him the administration's accuser."70 finally, the institution also plays a useful function in that it enables a person to make a complaint. even if the complaint is not sustained, the fact that the reasons for the decision are explained is often sufficient to satisfy the individual. overall, one can conclude that whilst most offices are working diligently, they are facing great difficulties which prevent them realizing their full potential. it is argued that the five elements discussed earlier form an integral unit and are crucial to the development of an effective office. this means that the failure of one element inevitably undermines the effectiveness of the office. regrettably, this is the situation in many commonwealth countries today. realistically, this unit can only operate with the active support of the executive. otherwise the institution will remain a "front and a facade" and a waste of scarce resources which should be consigned to the scrap heap of history, as was the case in swaziland. of course, the ombudsman is not a panacea for all governmental ills, for the relationship between the state and the individual is far too complex to be resolved by a single institution. nevertheless, given the political will and satisfactory organisation and powers, it can playa significant role in this respect. in the new gorbachevian era, the concept of more open government and accountability is high on the political agenda. thus now is an opportune moment for governments to re-assess the role of the ombudsman and to take the necessary steps to promote its effectiveness. if this occurs, then the comments of the ombudsman of trinidad and tobago will be applicable elsewhere: "the office of ombudsman ... serves to assist the disadvantaged, the underprivileged, the poor, the weak and the frightened, who do not understand the ways of public bureaucracy. it has proved to be a useful adjunct to the courts and other tribunals in stemming human rights abuses. "71 70. annual report 1989, p. i. 71. comments contained in the questionnaire. 75 they call it 'teleological' lord slynn of hadley * in a judgment in 1977,1lord denning, speaking of the european court'~ method of interpretation, said: "some of us recently spent a couple of days in luxembourg discussing it with the members of the european court and our colleagues in the other countries of the nine. we had a valuable paper on it by the president of the court (judge h. kutscher) which is worth studying: 'methods of interpretation as seen by a judge atthe court ofjustice, luxembourg 1976'. they adopt a method which they call in english by strange words at any rate they were strange to me the 'schematic and teleological' method of interpretation. it is really not soalarming as it sounds. all it means is that the judges do not go by the literal meaning of the words or by the grammatical structure of the sentence. they go by the design or purpose which lies behind it. when they come upon a situation which is to their minds within the spirit but not the letter of the legislation, they solve the problem by looking at the design and purpose of the legislature at the effect which it was sought to achieve." having recently returned from a spell in luxembourg myself, i thought that it would be appropriate to take this passage as the starting point for this year's royal bank of scotland lecture. in the years since that judgment, it has become widely thought that the court of justice of the european communities approaches interpretation in a very different way from that in which english courts have traditionally approached statutory interpretation. the latter may be described succinctly as adopting a literal and historical approach to statutory interpretation, above all, a literal approach. the european court, on the other hand, generally uses the literal *the royal bank of scotland lecture 1992, oxford, published by arrangement with lord slynn and the royal bank of scotland. 1. buchanan v. babco [1977] 2 w.l.r. 107, at p. 112; [1977] 2 c.m.l.r. 455, at p. 458. 225 the denning law journal method only as a starting point for its interpretation, giving preference to the schematic and teleological methods, and of those two, above all, the teleological method. "strange words" they may be to english ears, even now. but the underlying sense is clear and perhaps not unfamiliar. schematic interpretation means one which places the provision in question in its context in the overall scheme or system to which it belongs (hence it it sometimes also referred to as 'systematic interpretation'). to my mind "teleological" is synonymous with 'purposive', and 'purposive construction' is a notion which is familiar to english lawyers. it is for this reason that in my opinion it is wrong to say that english judges apply simply a literal interpretation. in the past they may have done so but for many years there has been a willingness to look at "purpose". i suspect many judges always were even if some were very strict. but english judges are not as blind as is sometimes suggested: see, for example, the speech of lord wilberforce in black-clawson ltd. v. papierwerke a. g.. 2 if the house of lords were ever to hold that courts could look at hansard even if in limited circumstances, the awareness of "purpose" would increase even further. at present, however, there is a difference and the difference lies in the predominance of the teleological over all other methods of interpretation and in the degree to which the european court applies it. that court may, in application of a teleological interpretation, go so far as to override the clear, ambiguous words of a legal text, which certainly in the past and to a large extent even today would be inconceivable for an english judge. let me take the example of fellinger,3 a technical, social security case involving what is known as a "frontier worker". mr. fellinger lived in germany. after he became unemployed there, he went to work across the border in the grand duchy of luxembourg, while still residing in germany. having become unemployed in luxembourg he claimed unemployment benefit from his local german employment office, and a dispute arose as to whether the amount should be based on the wage which he had last earned in luxembourg or on that which he had last earned in germany. mr. fellinger relied on article 68(1) of the basic social security regulation, regulation no. 1408/71, which reads: "the competent institution of a member state whose legislation provides that the calculation of benefits should be based on the amount of the previous wage or salary shall take into account exclusively the wage or salary received by the person concerned in respect of his last employment in the territory of that state." on a literal reading of that provision it was clear that mr. fellinger should have received benefit on the basis of the wage he received from his last employment in 2. [1975] a.c. 591, at pp. 629-631, especially at the foot of p. 629. 3. case 67/79 fellinger v. bundesamslalrfur arbeir [1980] e.c.r. 535. 226 they call it 'teleological' germany, as being "his last employment in the territory of' the member state of the competent institution. surprisingly to a common lawyer, the court did not follow the plain words of article 68(1) but adopted an interpretation which came to the opposite result in the case. its approach is interesting. the court began by pointing out that frontier workers often move from countries with lower wages to countries with higher wages and that it would thus be unfavourable to them if they could not claim unemployment benefit on the basis of their last employment in the country of employment rather than in the country of residence. (mr. fellinger's case is apparently untypical in this respect). the court held that in such circumstances the rules applicable "must be elicited from article 68(1) of regulation no. 1408/71 in thelight of the general principle underlying both that provision and the regulation as a whole" (paragraph 7 of the judgment). it looked at the preamble to the regulation. the court emphasised the passage in the preamble which stated that "in order to secure mobility of labour under improved conditions" the regulation seeks to ensure the unemployed worker of "the unemployment benefit provided for by the legislation of the member state to which he was last subject." from this the court held that "such an objective clearly implies" that unemployment benefit is regarded in regulation no. 1408/71 in such a way as not to impede the mobility of workers and to that end seeks to ensure that the persons concerned receive unemployment benefit reflecting the conditions of employment, particularly the remuneration, which they enjoyed in the member state of last employment. it inferred from this that article 68(1) "is founded on the general principle" that the unemployment benefit should be calculated on the basis of the wage received in the last employment held by the worker immediately before his becoming unemployed (paragraph 8). the court found that this result accorded with the basic empowering provision, article 51 of the e.e.c. treaty which requires that "the council shall ... adopt such measures in the field of social security as are necessary to provide freedom of movement for workers, ... ". the results also accorded with the underlying requirement, based it seems on general principles of equity or fairness, that unemployed workers should receive benefit proportionate to their remuneration at the time of becoming unemployed (paragraph 8 of the judgment). the court concluded (paragraph 9 of the judgment) that article 68(i), "viewed in the light of article 51 of the treaty and the objectives which it pursues," must be interpreted as meaning that the unemployment benefit must be calculated on the basis of the wage received by the worker in the last employment held by him in the member state in which he was engaged immediately prior to becoming unemployed. in the case of mr. fellinger this meant the wage that he was earning in luxembourg immediately before becoming unemployed. he was thus entitled to a substantially lower amount of benefit than that which he was claiming, namely that which he received during his last employment in germany. this was a disappointing result from his point of view, especially as it seemed that he had the 227 the denning law journal literal wording of article 68(1) on his side. however, the court's reasoning is based on the view that his case is untypical and that most frontier workers choose to work abroad because they earn more there. if they were unable to benefit from those higher earnings in the event of becoming unemployed, it might discourage people from becoming frontier workers. that would be contrary to the aim of making possible the free movement of persons) laid down in the e.e.c. treaty and pursued by regulation 1408/71. in order to achieve that aim) the literal wording of article 68(1) should not be followed in the case of frontier workers (last employment in the state of the competent institution) but it should be treated as having a different purport consistent with the overall scheme and purpose of the regulation (last employment in the state in which the worker was engaged immediately prior to becoming unemployed). it is possible that the judgment could be explained on the basis that article 68(1) had been drafted with a view to the ordinary case of a worker who lives and works in the same member state without taking account of the special case of "frontier workers". on that basis, it might be said that the court had used the teleological method to fill a gap in the legislation. however, even if that is a correct reading of the judgment) an english court faced with a similarly unambiguous domestic legal text might well have felt bound to follow it even if it might express misgivings or regret about doing so. that would probably have been so in the past. whether it would still here in the future may be more doubtful. the methods of interpretation of the european court have evolved in relation to the particular type of texts coming before it for decision. one characteristic of those texts which sets them apart from english domestic texts is that they exist and are authentic in several languages and not just one. no one language version is predominant. whereas in some international conventions it is provided that only one language version is authentic and the others rank as translations) the general rule for community texts is that all language versions are equally authentic. this is so even though the pilot version of the text was drafted in one language and the others were in fact translated from it. at the present time there are nine official community languages) and as more countries join there may well be more. it follows that, from the outset) the literal method is unsuited to be the decisive criterion for judicial interpretation of such texts and other methods are likely perforce to take on greater prominence. thus) for example, in case c-185/89 staatssecretaris van financien v. velker international oil company4 concerning the interpretation of article 15of the sixth vat directive, the court held that the term "supply of goods for the fuelling and provisioning of vessels" was capable of bearing several literal meanings (paragraph 16of the judgment). therefore it held) in order to interpret the term, that recourse must be had "to the context in which it occurs, bearing in mind the purpose and structure of the sixth directive." accordingly, the court resorted to the 4. [1990] e.c.r. 1-2561. 228 they call it 'teleological' schematic and teleological methods, rather than to the literal method, in order to resolve the question of interpretation before it. community legal texts also differ from domestic english ones in that they fall to be applied in a number of different states (currently 12). having taken the basic decision that community law was a single legal order,5 the court was naturally led to adopt methods of interpretation which would ensure its uniform application in all member states. if community law were interpreted and applied differently in the various member states, its unity would be lost and ultimately its existence put at risk. thus the court has held6 that "the necessity for uniform application and accordingly for uniform interpretation makes it impossible to consider one version of the text in isolation but requires that it be interpreted on the basis of both the real intention of its author and the aim he seeks to achieve in the light in particular of the versions in all . . . languages." in purely practical terms it is easier to glean the purpose of a community text than that of an english domestic one because the community legislative texts are legally required to state the reasons on which they are based, under article 190 of the e.e.c. treaty. they invariably comprise preambles to that end, and the court in its judgments regularly refers to them precisely for the purpose of defining the object pursued by the measure in question. an example of this practice was seen in the fellinger case to which i have referred. ultimately all community legal texts relate back to the overall aim of the community. the preamble to the eec treaty in particular spells out quite clearly the aim of increasing european unification with a view to maintaining peace and raising living standards. that "grand design" was sketched out in the founding treaties, but many of its details were left to be completed subsequently and the pro~ess is a continuing, dynamic one. if the momentum were lost, the overall objective would be at risk. the adoption of a teleological method ofinterpretation, is particuarly well suited to satisfying this basic imperative of the community legal system. as the former president of the court, hans kutscher, put it in the work referred to by lord denning in the opening passage of this paper: "the principle of the progressive integration of the member states in order to attain the objectives of the treaty does not only comprise a political requirement; it amounts rather to a community legal principle, which the court of justice has to bear in mind when interpreting community law, ifit is to discharge in a proper manner its allotted task of upholding the law when it interprets and applies the treaties. how else should the court of justice carry out this function which it has been assigned except by an interpretation 5. see case 6/64 cosra v. enel (1964) e.c.r. 585, at p. 593. 6. case 26/69 stauder v. vim (1969) e.c.r. 419; case 55/87 moksel v. balm (1988) e.c.r. 3845. 229 the denning law journal of community law geared to the aims of the treaty, that is to say, one which is dynamic and teleological."7 in practice it is very common for two (or more) methods to be used together, one confirming the other. in particular, the schematic and teleological methods are frequently used together. for instance, it may be possible to understand the 'general scheme' of a particular set of rules only by relating them to the overriding objectives of the treaty to which they are meant to contribute. it may be possible to define the precise purpose of a measure only by situating it in its broader scheme. the literal method, although almost never decisive on its own, continues to play an imporant role in the court's interpretation because the court must necessarily start from the terms brought before it for interpretation. the three methods are complementary and most often fall to be applied together, but among them the teleological method has pride of place. there are in addition to, or perhaps constituents of, the three main methods of interpretation which have been mentioned, other guiding concepts.8 in particular the principle of effectiveness or effet utile can play an important role. this principle is derived from international law, and the court's use of it has been described by former president kutscher in the following terms: "the court, in accordance with the principle of ejfet utile gives preference to the construction which produces the maximum effectiveness and enables its effect to be developed to the greatest possible extent. but what are the criteria by which the effectiveness of a rule is to be judged? the only possible answer to this question is that these criteria must be gathered from the objectives of the treaty. according to the principle of effet utile preference is to be given to the interpretation which is best able to further attainment of the objectives of the treaty."9 hence the principle may be seen as an extension of the teleological approach. as a means of interpretation, the principle can be illustrated by the case of antonissen.10 gustaff desiderius antonissen, a belgian national, came to the united kingdom in october 1984 and remained unemployed until, in march 1987, he was convicted of drug offences by liverpool crown court. the question arose as to whether he could challenge a deportation order on the basis of community law relating to free movement of workers. while community provisions clearly provide rights for workers in employment to move freely between member states, it had long been uncertain whether and to what extent community law provided similar rights for the unemployed wishing to seek work 7. h. kutscher, "methods ofinterpretation as seen by a judge of the court of justice", p. 37, judicial and academic conference, 27-28 september 1976, court of justice of the european communities. 8. see, e.g., timothy millen, "rules of interpretation of eec legislation", [1989] statute l.r. 163, at pp. 175-181. 9, kutscher, supra n. 8, pp. 41-42. 10. case c-292/89 the queen v. immigration appeal tn'bunal, ex parte gustaff ljesiderius antonissen [1991] e.c.r. 1-745. 230 they call it 'teleological' in other member states. article 48(3)(a) speaks only of a right to free movement "to accept offers of employment actually made" and article 48(3)(c) only of a right to stay in a member state "for the purpose of employment". a literal reading of those provisions would have ruled out rights of free movement of the unemployed. although urged to do so, on the literal wording of the article the court expressly refused to adapt such an interpretation, ii holding that it would compromise an unemployed worker's chances of finding employment and thus would deprive article 48(3) of its effectiveness (effet utile). on that basis, the court gave article 48(3) an extensive reading and held that it implied a right for community nationals to visit and stay in other member states for the purpose of seeking employment there.12though after a period such a person may be required to leave unless there is a likelihood of his obtaining employment. the principle of effet utile had also been used, for example, to reach the conclusion that a commission decision requiring a member state to alter or abolish a state aid under article 93(2) of the e.e.c. treaty, in order to be . "effective", may also include a requirement on the member state to recover the aid paid out in breach of the treaty, notwithstanding the fact that article 93(2) does not expressly confer any such power on the commission.13 similarly the principle has been used to found a ruling that the community by necessary implication has the power to carry out functions which are mentioned in the treaty or in subordinate legislation, for instance in the areas of common commercial policyl4 or fishery conservation,15 even though the text does not contain any express provision of such powers. this recognition of executive and legislative powers illustrates the consequences which the principle of effet utile can have in the practice of the court. in a traite-cadre, where gaps were left to be filled later, it enabled the court to fill these gaps by a method ofinterpretation which is sometimes seen as judicial law making. it is not difficult to find illustrations of this. in many of such cases the court has relied on the principle of effet utile. whatever the grounds relied on, one major difference between them and cases of simple interpretation lies in the degree of predictability of the result. a method of interpretation even a schematic and teleological one can usually be relied on to give reasonably predictable results. the teleological method of the european court may well yield different results from the more literal methods of english domestic law, but both methods can be expected to give relatively predictable results in so far as they stay within the limits of interpretation. it is sometimes said that in its "creativity" the court moves to the limits of the judicial function. i think that this can be exaggerated though there is little doubt that the court is on occasions called upon to, and does, take decisions which in a 11. paragraph 10 of the judgment, at p. 1 776. 12. paragraphs 12 and 13 of the judgments, at p. 1 777. 13. case 70/72 commission v. germany [1973] e.er. 829. 14. opinion 1/75 [1975] e.er. 1755 (conditions for the grant of export credits). 15. case 804/79 commission v. united kingdom [1981] e.er. 1045, at p. 1074. 231 the denning law journal national system would be likely to be dealt with by the legislature or by the exercise of delegated legislative authority. this is not a criticism: it is inherent in the nature of the treaty and the development of the community has been much advanced by the coures willingness to grasp the nettle. it can, however, sometimes lead to difficulties. in the case of gaston schul there was at issue the importation of a second-hand yacht from france to the netherlands, an expensive item whose price embodied quite a large amount of residual vat. since the purchase (and subsequent importation) was from a private person (not a trader), that vat element could not be deducted. on the other hand the dutch authorities, in charging vat on the importation, based their assessment on the full purchase price, thus in effect charging vat on vat. when the matter came before it, the european court found that there was plainly a lacuna in the community vat legislation, which the community legislature should in due time fill. however, the court did not leave the matter there. it said: "although the establishment of a system of complete neutrality in the field of competition involving full remission of tax on exportation is indeed a mauer for the community legislature,16 so long as such a system is not established article 95 of the treaty prevents an importing member state from applying its system of value-added tax to imported products in a manner contrary to the principles embodied in that article." 17 the court went on to spell out of article 95 of the treaty (not the sixth vat directive which, of course, was silent on the point) an obligation on the member state of importation "to take into account ... the residual part of the value-added tax paid in the member state of exportation and still contained in the value of the product when it is imported."ib that ruling proved difficult to apply, gave rise to further dispute, and within a short time the court was seised of a series of further questions designed to elucidate how exactly the national authorities were required to "take into account" the residual amount of value-added tax. vat rates were different in france and in the netherlands; the value of the goods had changed between the date of their purchase and the date of their resale in france; the change in value was (unusually) an increase not a depreciation; should an upper limit be placed on any deduction? the complexity of such issues may explain why the legislature had refrained from dealing with the matter at that stage. the court, however, repeated: "although the establishment of a system of complete competitive neutrality involving full remission of tax on exportation is a mauer for the community legislature,19 until such a system has been established article 95 of the treaty prevents an importing member state from applying its vat rules to imported goods in a manner contrary to the principles embodied in that article.20 it added: "consequently, 16. my emphasis. 17. case 15/81 schul v. inspecteur der invoerrechten en accljmzen [1982] e.c.r. 1409, at p. 1433. 18. ibid., at p. 1436. 19. my emphasis. 20. case 47/84 staacssecretan's van financien v. schul [1985] e.c.r. 1491, at pp. 1506-1507. 232 they call it 'teleological' pending the adoption of a legislative solution, in charging vat on imports account must be taken of the effect of article 95 of the treaty. it is therefore for the court to lay down guidelines21 compatible with article 95 of the treaty, consistent with the general scheme of the sixth directive and sufficiently simple to be able to be applied in a uniform manner throughout the member states."22 and it went on to elaborate detailed answers as to how the residual vat element was to be calculated and deducted. the answers are to be found in [1985] e.c.r. 1491, at p. 1512. although the court in the second gaston schul case maintained its decision to step into the place of the community legislature, when the court was expressly invited a few years later to do the same thing in the case of vat on second-hand goods, it declined to do so. the case was oro amsterdam beheer, and the double taxation at issue there was at least as clear as that at issue in gaston schul. under dutch law, where second-hand goods are sold by a private person toa trader (i.e., a taxable person) no vat is charged, but when the trader re-sells them he has to pay vat on the full amount of their resale price without being able to deduct the vat already contained in their purchase price. the question before the court was whether the failure of the national legislation to eliminate such double taxation was contrary to community law. in gaston schul, as has been seen, the court had laid down new law designed to prevent double taxation. here, it took the converse approach, saying: "a comprehensive and positive reply to that question cannot be given on the basis of the judgments of the court alone."23 it went on to say: "on the whole the community system of vat is the result of a gradual harmonisation of national legislation pursuant to articles 99 and i00 of the treaty. the court has consistently held that this harmonisation, as brought about by successive directives and in particular by the sixth directive, is still only partial ... nowhere in the common system of value-added tax, as it stands at present, are to be found the necessary bases for determining and laying down detailed rules for applying a common system of taxation enabling double taxation to be avoided in trade in second-hand goods. until the community legislature has taken action,24 it is therefore necessary to continue to apply article 32 of the sixth directive, which merely authorises member states that apply a special system of vat to secondhand goods to retain that system but does not impose on them any obligation to introduce such a system if none exists. "25 thus in the result the court ruled that the dutch legislation was compatible with community law in spite of its element of double taxation of second-hand goods. not only is the result the opposite to that in gaston schul, but the reasoning 21. my emphasis. 22. supra n. 20, at p. 1507. 23. case 165/88 oro amsterdam beheer and concerto v. inspecteur der omzetbelasting [1989] e.c.r. 4081, at p. 4099. 24. my emphasis. 25. supra n. 23, at p. 4100. 233 the denning law journal leading up to it comprises an elaborate statement of judicial restraint. in the schul cases the court filled the gap left unfilled by the legislature: in the oro amsterdam one it declined to alter the situation "until the community legislature has taken action". judicial law making must have its limits if only in the interests of legal certainty and on matters of policy and economic or political appreciation the court is cautious and reluctant to intervene. yet examples of the court's innovative activity can be found in many areas. one particularly well-known example is its case-law conferring direct effect on directives notwithstanding that the wording of article 189 of the eec treaty gave no indication to that effect. indeed both the wording and structure of article 189 as well as the scheme of the treaty as a whole might have led to the view that only regulations should have direct effect and directives not at all, being binding only on the member states to which they are addressed. in the event of a member state's failing to implement a directive fully or in time, it might have been supposed that the sanction provided by the system of remedies under the treaty was confined to an infringement action against that state under article 169of the treaty. however, the court decided otherwise, and in a long line of decisions26 has maintained that provisions of directives may under certain conditions have direct effect, i.e. may be relied on by community citizens before their national courts even against, or in the absence of, national implementing measures. for the time being, the court has ruled out "horizontal direct effect" for directives (i.e., between citizen and citizen) and confined it to "vertical direct effect" (i.e., between the citizen and the state),27but it is increasingly being urged to recognise horizontal direct effect. if the court were to take that step, little would remain of the distinction drawn in the treaty between directives and regulations. one extension has already been made to this line of case-law, as regards the sanctions against a member state for failing to implement a directive. in addition to an infringement action under the treaty, in addition to the possibility of the provisions of the directive becoming directly enforceable, the court has held in the francovich case that a member state may be liable in damages to a citizen who has suffered harm as a result of its failure to implement a community directive. 28the contours of this new remedy are not yet clearly defined, but the principle is now set for breach of obligation by a member state and it seems not to be limited to a failure to implement a directive. the consequences of this decision are likely to be far-reaching though there are many questions to be resolved in future cases. another well-known area in which the court has innovated in relation to the express terms of the eec treaty is that of free movement of goods. articles 30 to 34 of the treaty provide for goods to move freely between member states: article 26. see, e.g., case 8/81 becker v. finanzamr munsrer-/nneusradr [1982] e.c.r. 53. 27. case 152/84 marshall v. sourhampron and souchwest hampshire a rea health a uthority (teaching) [1986] e.c.r. 723. 28. case c-6/90 andrea francovich v./talian republic, judgment of 19 november 1991. 234 they call it 'teleological' 36 lays down a number of exceptions to this basic rule on grounds including public morality, the protection of health and the protection of industrial property. as drafted, article 36 appears to lay down an exhaustive, closed list of exceptions. moreover, the court's case-law has repeatedly emphasised that exceptions to the treaty's basic rules, article 36 among them, must be construed strictly. however, in its judgment in'cassis de dijon29 the court admitted new grounds for derogating from the basic rules of free movement of goods. those grounds were the "mandatory requirements" relating to matters such as consumer protection and the fairness of commercial transactions, but the category is not closed and further "mandatory requirements" may potentially be added. some commentators have had difficulty in reconciling this case-law with the provisions of the treaty. on the one hand, these "mandatory requirements" appear to have little foundation in articles 30 and 34 as drafted; on the other, it seems hardly possible to insert them in article 36 in as much as it comprises a closed list of exceptions subject to restrictive interpretation.30 yet the court's decision in that case is of remarkable importance it opened up trade in the community, removing the need for the commission to lay down myriad harmonising regulations, and at the same time recognised that at the then state of community development member states must have some powers of control. cassis de dijon has given rise to further litigation, partly seeking clarification of the innovations which it brought to the law on free movement of goods. one such was the case of torfaenborough council v. b & qp.i.c.,31 in which the court was asked to rule on the question whether britain's sunday trading rules were affected by community law. instead of simply declaring the matter to be outside the ambit ofthe treaty rules, which it might well have done,32 the court added a rider which has caused much uncertainty. it ruled: "article 30 of the treaty must be interpreted as meaning that the prohibition which it lays down does not apply to national rules prohibiting retailers from opening their premises on sunday where the restrictive effects on community trade which may result therefrom do not exceed the effects intrinsic to rules of that kind." such a ruling in effect leaves the matter entirely to be decided by the national judge. one newspaper reporting the decison, entitled its article: "britain handed 29. case 120/78 rewe-zintral ag v. bundesmonopolveruraltung fur branntwein [1979j e.c.r. 649 (the cassis de dijon case). 30. see, e.g., the discussion and articles cited by l. w. gormley in halsbury's laws of england 4th edition, vol. 52, para. 12.83. 31. case 145/88 [1989j e.c.r. 3851. 32. it made a ruling of that kind at about the same time in another case on free movement of goods: case c-23/89 quietlynn ltd. v. southend borough council [1990j e.c.r. 1-3059. the difference in approach between the two cases remains hard to reconcile. 235 the denning law journal decide-it-yourself sunday ruling".32 mr. justice hoffman, speaking at the bar conference 1991 said: "sunday trading is a case in which the supremacy ofec law had produced a complete dog's breakfast. but it is the exception. on the whole the system works."34 the court has subsequently gone some way towards clarifying the matter in its judgments in conforama35 and marchandise.36 a further reference from the united kingdom, made by the house of lords in stoke-on-trent and norwich city council v. b & q p.l.c.37 is now pending before the european court. it is to be hoped that it will result in the issue being finally elucidated. another area in which the european court has been active in making new law by way of judicial decision is that of its own jurisdiction and remedies generally. the relevant cases may be grouped for convenience into those concerning preliminary rulings and those concerning direct actions. i give a few illustrations in the field of preliminary rulings, starting with the famous defrenne case in the mid-1970's.38 in that case gabrielle defrenne, an air hostess with the belgian airline sabena, established her right to equal pay with male employees doing equal work and in so doing led the court to deliver a landmark judgment establishing that article 119of the eec treaty had direct effect, in other words that it could be relied on by workers before national courts throughout the community in order to claim equal pay with the opposite sex. that ruling should in principle have applied both to past and future claims, but several member states urged on the court the high cost which might be entailed by allowing such back claims. as a result, the court limited the effect of its ruling to pending and future claims only, ruling: "except as regards those workers who have already brought legal proceedings or made an equivalent claim, the direct effect of article 119 cannot be relied on in order to support claims concerning pay periods prior to the date of this judgment. "39 that part of the ruling produced surprise and criticism in some quarters since article 177of the eec treaty, the basis of the court's jurisdiction in preliminary rulings such as defrenne, made no provision for the court to limit the temporal effect of its rulings in this way. in the judgment the court did not give any grounds for exercising this power, and confined itself to stating the reasons why it considered a temporal limitation appropriate in the instant case. in a small number 33. the times, 23 november 1989. 34. counsel, september/october 1991, p. 22. 35. case c-312/89 [1991] e.c.r. 1-997. 36. case c-332/89 [1991] e.c.r. 1-1027. 37. case c-169/91. 38. case 43/75 defrenne v. sabena [1976] e.c.r. 455 ("defrenne no.2"). 39. ibid., at p. 482. 236 they call it 'teleological' of subsequent preliminary rulings the court has again limited the effect of its ruling to the future and has indicated that there is an analogy between the power which it has thus granted itself and article 174 of the e.e.c. treaty which empowers the court, where it declares a community regulation void in a direct action, to state which of the effects of the regulation are definitive.40that reason was not, however, supplied at the time, and it is by some thought a narrow basis for claiming a power, not expressly granted in the treaty, to deprive persons of a right of action on grounds of financial expediency. it has, however, been often used with major consequences. still in the field of preliminary rulings, the court ruled in a 1988 decision, foto-frost,41 that "the national courts have no jurisdiction themselves to declare that measures taken by community institutions are invalid."42this exclusivity of jurisdiction for the european court is not expressly provided for in article 177 of the treaty: the court laid it down by case-law after many years of academic discussion on the point (confirming the generally accepted view). the decision was foreshadowed by a dictum in joined cases 239 and 275/82 allied corporation.43 in foco-frost, it was at the heart of the case and the decision was fully reasoned. the court gave three reasons for the decision: first, the purpose of article 177, uniform application of community law; second, the coherence of the system of remedies under articles 173, 177 and 184 (plea of illegality); and third, efficient administration of justice. the judgment has been applied for example by the english high court in ex parte fedesa, 44where it referred the question of the validity of directive 88/146 to the european court. the european coal and steel community (ecsc) treaty provides for preliminary rulings by the court but, unlike the eec treaty, confines them to the validity of acts of the commission and the council, with no mention of interpretation.45 in the case of busseni, 46the court was asked to rule on a question precisely of the interpretation of a commission recommendation under the ecsc treaty. on a literal reading of that treaty it might have been concluded that the court had no jurisdiction, but the court held on the contrary that it did have jurisdiction to rule on questions of interpretation under the ecsc treaty notwithstanding the wording ofthat treaty. it based that decision on the need for it to ensure the uniform application of community law. it deduced that it would be contrary to the aim and the coherence of the three founding treaties for it to have the last word on the interpretation of acts under the eec and euratom 40. e.g., case 109/79 maiseries do beauce v. onic [1980] e.c.r. 2883, at p. 2913; cf. case 309/85 barra v. belgian seaee and ciey of liege [1988] e.c.r. 355. 41. case 314/85 foro-frose v. haupezollame lubeck-ose [1987] e.c.r. 4199. 42. ibid., at p. 4235. 43. [1984] e.c.r. 1005, at p. 1030. 44. [1988] 3 c.m.l.r. 661. 45. see article 41 of the ecsc treaty; cf. article 177 of the eec treaty. 46. case 221/88 ecsc v. busseni [1990] e.c.r. 1-495. 237 the denning law journal treaties whilst acts under the ecsc treaty remained subject to the sole jurisdiction of a multiplicity of national courts whose interpretations might diverge. accordingly it declared itself competent and went on to give an interpretation of the ecsc measures in question. it is difficult to see how it could have done otherwise. to decide whether a provision is valid the provision must first be interpreted. turning to direct actions, a remarkable development in recent years has been the extension, under the court's case-law, of rights of action relating to the european parliament. article 173 of the eec treaty, providing for annulment actions, stipulates that "the court of justice shall review the legality of acts of the councilor the commission other than recommendations or opinions." it does not by its terms provide for the review of any act adopted by the european parliament. therefore it might have been thought that the legality of any of the parliament's measures could not be challenged in the court. the court, however, held otherwise. in the 1986 decision in case 294/83 les verts v. european parliament47 it ruled that legally binding acts of the european parliament could be the subject of an annulment action under article 173 even though that article does not mention them expressly. the court's reasoning for that decision is founded on the assertion that the eec is a community based on the rule oflaw, in as much as neither its member states nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the treaty.48 the court inferred therefore that an interpretation of article 173 of the treaty which excluded measures adopted by the european parliament from those which could be contested by means of an action for annulment would lead to a result contrary both to the spirit of the treaty as expressed in article 164 and to its scheme, which is to make a direct action available against all measures adopted by the institutions which are intended to have legal effects. measures adopted by the european parliament in the context of the eec treaty could encroach on the powers of the members states or of the other institutions, or exceed the limits which have been set to the parliament's powers, without its being possible to refer them for review by the court. it must therefore be concluded that an action for annulment may lie against measures adopted by the european parliament intended to have legal effects vis-a-vis third parties.49 having thus affirmed its right to entertain annulment actions against the european parliament, the court was soon faced with the converse question of whether the parliament could itself bring such an action. the problem here is that article 173 again does not mention the parliament. its first paragraph states that an annulment action may be brought by a member state, the councilor the 47. [1986] e.c.r. 1339. 48. ibid., at p. 1365. 49. ibid., at p. 1366. 238 they call it 'teleological' commission without proof of locus standi; its second paragraph provides that a natural or legal person may bring such an action on proof of direct and individual concern; but neither makes any mention of the parliament. the first time that the question came before it, in the so-called "comitology" case,50 the court accordingly ruled out any right of action for the european parliament, on the grounds that it was neither a "privileged applicant" within the terms of the first paragraph of article 173 nor a "natural or legal person" within the terms of the second paragraph. this court thus adhered to a more literal reading of article 173, rejecting all the arguments put forward in favour of granting the parliament the right to sue. it was urged on the court that it was difficult to reconcile such a narrow approach with that adopted in les verts only two years earlier. the court put forward a number of responses. one of them, particularly interesting for present purposes, was that the prerogatives of the european parliament had only recently been augmented by the single european act (1986) but without any changes having been made to article 173 of the treaty.51 indeed the member states in adopting the single european act had not only had an opportunity to extend the parliament's powers to the bringing of annulment actions but had specifically rejected a proposal to do so. the court's reasoning appeared to be that it should not do what the member states had just refused to do. lt was not long, however, before the question came before the court again. this time though, in the so-called "chernobyl" case,52 the court came to a different result. having categorically stated less than two years earlier that the treaty contained no power for the parliament to bring an annulment action, the court now recognised a qualified right in the parliament to resort to article 173. the court gave its reasons in the following terms: "the treaties set up a system for distributing powers among the different community institutions, assigning to each institution its own role in the institutional structure of the community and the accomplishment of the tasks entrusted to the community. observance of the institutional balance means that each of the institutions must exercise its powers with due regard for the powers of the other institutions. it also requires that it should be possible to penalise any breach of that rule which may occur. the court, which under the treaties has the task of ensuring that in the interpretation and application of the treaties the law is observed, must therefore be able to maintain the institutional balance and, consequently, review the observance of the parliament's prerogatives when called upon to do so by the parliament, by means of a legal remedy which is suited to the purpose which 50. case 302/87 european parliament v. council [1988] e.c.r. 5615. 51. at p. 5644. 52. case 70/88 european parliament v. council [1990] e.c.r. 1-2041. 239 the denning law journal the parliament seeks to achieve. in carrying out the task the court cannot, of course, include the parliament among the institutions which may bring an action under article 173 of the eec treaty or article 146 of the euratom treaty without being required to demonstrate an interest in bringing an action. however, it is the court's duty to ensure that the provisions of the treaties concerning the institutional balance are fully applied and to see to it that the parliament's prerogatives, like those of the other institutions, cannot be breached without it having available a legal remedy, among those laid down in the treaties, which may be exercised in a certain and effective manner. the absence in the treaties of any provision giving the parliament the right to bring an action for annulment may constitute a procedural gap, but it cannot prevail over the fundamental interest in the maintenance and observance of the institutional balance laid down in the treaties establishing the european communities. consequently, an action for annulment brought by the parliament against an act of the councilor the commission is admissible provided that the action seeks only to safeguard its prerogatives and that it is founded only on submissions alleging their infringement."53 in les verts, the court had used the word "interpretation", although it may be thought that there it was in fact making new law. in chernobyl the court makes it clear that it is not interpreting any text but is itself recognising a new remedy as being necessary. the origin of its power to do so is: "the court's duty to ensure that the provisions of the treaties concerning the institutional balance are fully applied."54 it follows that the power to create the new remedy stems from an inherent power of the court based on the treaty provisions but not expressly spelled out in them. that position, it has been suggested, differs from the long-held view that the court had only the powers specifically conferred on it by the treaty, what in french is called "une competence d'attribution". that view was largely based on article 4 of the treaty, which provides inter alia: "each institution shall act within the limits of the powers conferred upon it by this treaty." on the other hand, article 164 of the treaty, which supplies the foundation of the court's jurisdiction, provides that, "the court of justice shall ensure that in the interpretation and application of this treaty the law is observed", and it may be possible to read that provision very broadly as conferring on the court all powers necessary for ensuring the proper administration of justice, including the power to create new remedies not specifically provided for in the treaty. whether or not such a construction is valid is in any event theoretical, since it appears clear from the cases cited that the court has created new remedies. as a part to the chernobyl 53. at pp. 1-2072-1-2073. 54. at p. 1-2073. 240 they call it 'teleological' decision i feel neither regret nor embarrassment about it.55 the proposed maastricht treaty (except in relation to the barber case) recognises and gives effect to such decisions of the court. this development of the court's function is also illustrated by a recent decision of 1990: case 2/88 imm. zwartveld.56 in that case an examining magistrate in the netherlands was investigating alleged frauds against community fishing quotas in relation to a wholesale fish market within his jurisdiction, and for the purpose sought access to european commission records of inspections which its staff had carried out. the commission refused to give him access, relying on its immunities, in particular article 2 of the protocol on privileges and immunities which provides unconditionally that, "the archives of the communities shall be inviolable". the dutch judge asked the court of justice to order the commission to produce the documents to him, notwithstanding that no provision of community law provided for such a procedure. he referred to articles 1 and 12 of the protocol, but they plainly could not found such a procedure, as the court implicitly recognised. however, it did not dismiss the dutch judge's request, but declared itself competent to entertain it and indeed granted an order along the lines sought. the grounds for this decision are to be observed. it is based on an assertion that article 5 of the eec treaty imposes a "duty of sincere co-operation" on the community institutions. on its terms, however, article 5 imposes duties exclusively on the member states as signatories of the treaty, according to the maxim pacta sunt servanda. it provides: "member states shall take all appropriate measures to ensure fulfilment of the obligations arising out of this treaty ",57 but makes no mention of the community institutions.58 there is, therefore, a certain creativity in the court's decision that: "relations between the member states and the community institutions are governed, according to article 5 of the eec treaty, by a principle of sincere co-operation. that principle not only requires the member states to take all the measures necessary to guarantee the application and effectiveness of community law ... but also imposes on member states and the community institutions mutual duties of sincere co-operation."59 it has been suggested that even adopting the most teleological interpretation it is arguable that article 5 does not impose any duty on the community institutions and that such a duty is of the court's own creation. on that basis, however, the court went on to assert: "it is incumbent upon every community institution to give its active assistance to such national legal 55. cf. a. arnull, "does the court of justice have inherent jurisdiction?", [1990] common market l.r .., p. 683. 56. [1990] e.c.r. 1-3365. 57. my emphasis. 58. for an interpretation in that sense, see, e.g., case c-374/89 commission v. belgium [1991] e.c.r. 1-367, at p. 1-379. 59. at p. 1-3372. 241 the denning law journal proceedings, by producing documents to the national court and authorising its officials to give evidence in the national proceedings. "60 it then proceeded to found its jurisdiction on the need for it to be able to review whether the community institutions were complying with the duty which it had just laid down. the relevant passage of its decision is in the following terms: "the court, which is responsible under article 164 of the eec treaty for ensuring that in the interpretation and application of the treaty the law is observed, must have the power to review, at the request of a national judicial authority and by means of a legal procedure appropriate to the objective pursued by that authority, whether the duty of sincere co-operation, incumbent on the commission in this case, has been complied with. consequently, the court has jurisdiction to examine whether the community institutions' reliance on the protocol in order to justify the refusal to co-operate sincerely with the national authorities is justified in view of the need to avoid any interference with the functioning and independence of the communities."61 this takes matters a step further than chernobyl and preceding cases. there the court opened up new remedies on the basis that the rule oflaw required review to be available of acts provided for by the treaties: in zwartveld the court bases its jurisdiction on the need to review compliance with a duty which it found to exist. the court itself does not appear inclined to set limits to this development, but rather is consolidating thezwartveldline of case law. in a 1991case relating to the enforcement of community competition rules before national courts, the court stated that the commission is required to give the national court details relevant to pending competition cases.62it based that statement again on the "duty of sincere co-operation" which it says rests on the commission by virtue of article 5 of the treaty. it is probable that such dicta will be repeated, and in due course the court may be able to assert that the "duty of sincere co-operation" results from its "settled case law" (jurisprudence constance, in french). from there, further construction will be possible, in the form either of new duties or of new remedies. the days of the 1960's and 1970's are past when the european court stepped in to keep up the momentum of community construction in the face of the inactivity of the community legislature. at the present time, the community legislature has never been so active: the last of the approximately 300 measures for the single market programme are being adopted and placing substantial burdens on the member states to adopt implementing measures. the member states for their part adopted the single european act in 1986, the maastricht treaty this year 60. at p. 1-3373. 61. ibid .. 62. case c-234/89 sterqios delimitis v. henninger brau ag, judgment of28 february 1991, para. 53. 242 they call it 'teleological' (1992) and are likely shortly to adopt the european economic area treaty. in the presence ofthis intense 'legislative' activity, the need for the judicial body to make up for the inactivity of the legislature may be less great and may be questioned. i do not consider that the 'creative' role of the court is or should be at an end. there will be times when it goes ahead but there will be times when it holds back as it did in the beuc case of 1991,63 where it held at paragraph 30: "it is for the community legislature to consider whether the basic antidumping regulation should grant an association representing the interests of consumers the right to consult the non-confidential file." whatever happens in the future, the words of lord denning, from his 1979 lord fletcher lecture, come to mind: "all this shows that the flowing tide of community law is coming in fast. it has not stopped at high water mark. it has broken the dykes and the banks. it has submerged the surrounding land, so much so that we have to learn to be amphibious if we wish to keep our heads above water." in view of all the intense activity we are witnessing in the making of community law, those remarks are now truer than ever. in those words, as so often, lord denning showed acute vision and great foresight. 63. case c-170/89 bureau europeen des unions de consommateurs (beuc) v. commission, judgment of 28 november 1991. 243 lord denning's contribution to contract law p.s. atiyah* i don't suppose there are many people present who have suffered the indignity of being censored by order of the court of appeal. it happened to me in 1981, not, i hasten to add, because of anything i myself said or did, but because i had the misfortune to take part in a television programme which was adjudged to fall foul of the law of breach of confidence. adjudged, that is, by a majority of the court of appeal. i lord denning dissented. in his judgment the master of the rolls described the television programme and had the kindness to say of my modest contribution that it "was all very sensible and straightforward." ever since then i have felt that lowe lord denning a debt, and i am glad today to be able to repay it, even if it stretches things a little to say that his contributions to the law were "all very sensible and straightforward." but then my contribution to the television programme lasted about five minutes, while lord denning's contribution to the law of england was spread over 38 years. my brief today is to say something about lord denning's contribution to the law of contract, and i am sure others will speak of lord denning the man. but in assessing his contribution to the law it is right that we pause for a moment to remember what we are today actually celebrating. after all, lord denning's chief claim to fame rests on his role as a moderniser and innovator, but we do not usually associate modernisation and innovation with octogenarians or even septuagenarians. speaking for myself, i have to say that as i approach my seventieth year i find the usual decline in the faculties, both physical and mental, of people of my age a serious deterrent to understanding and tolerating the modernisation that goes on around me. memory begins to fail, case names become elusive, and the urge for an afternoon nap is often irresistible. but when lord denning was my age he was just getting into his stride as master of the rolls, with fifteen years of judicial creativity still ahead of him. the older i get the more i marvel that lord denning was able to do this job at all. * formerly professor of english law, oxford university. i see schering chemicals v. falkman [1981] 2 all e.r. 321. denning law journal as i have said change and modernisation are usually thought to be the job of the young such as our prime minister who is just half lord denning's age. to really appreciate the difference between lord denning's age and tony blair's age, let us for a moment cast our eyes back to 23rd january, 1899 when young tom was born and let us try to do this like true historians which means we must forget that the twentieth century has happened, and see the world as it appeared to those living at that time. what we see, then, in january 1899 is the old queen still on the throne; we see lord halsbury sitting on the woolsack, a man who had been born in 1823 and very nearly lived to celebrate his own hundredth birthday; we remember vividly that barely six months ago the greatest political figure of the century w.e. gladstone had been laid to rest in westminster abbey; and that only four months ago there had taken place in far away africa the battle of omdurman in which a young lancer called winston churchill had taken part in what few may then have realised would be the last cavalry charge in the history of the british army. many lawyers in 1899 would also have had clear memories of the monumental decision in allen v. flood handed down by he house of lords only eighteen months earlier.2 at magdalen college, oxford, where tom denning took a first in mathematics and then a first in law just after the first world war, there was still growing in 1899 an elm tree planted around 1661 which was thought to be the largest tree in britain. not the least remarkable thing about lord denning is that a man born at that time was still doing his best to modernise the law in the 1980s. before i look in any detail at lord denning's work on contract law i want first to address briefly a problem which anyone encounters when trying to assess a large number of lord denning's cases. the problem is that of trying to identify the value system or systems which underlay lord denning's approach. was he, for instance, a man of the right or a man of the left? of course he believed in change and modernisation and he had little patience with conservatism for its own sake, so that might make him seem like a man of the left; but the values that activated him in modernising the law were often rather old-fashioned values. then again, he is also often to be found upholding the rights of the small person against the big battalions, but since he did this just as enthusiastically whether the big battalions were governmental or business organisations, this again makes him difficult to classify in any simplistic manner. in cases involving matrimonial or sexual immorality and some cases of sex discrimination, lord denning often seems quite old-fashioned, even by the standards of his day; yet he was far ahead of most of his contemporaries when he declared that a wife was just as entitled as a husband to decide where they were to 2 [1898] a.c. 1. 2 contract law live. many will be baffled by these apparent inconsistencies in lord denning's value systems, as revealed in his judgments, and i would not pretend that these matters can easily be resolved. like most of us, lord denning was no doubt a man with likes and dislikes, with prejudices and predilections. for instance, he liked cricket and disliked trade unions. but if there is a key to these apparent inconsistencies in his approach it may lie in lord denning's belief that he could identify the values of the ordinary man or woman in the street; and that it was the proper role of the judge to give effect to those values. i do think he tried to decide cases in a way which he thought would reflect the sense of justice of the ordinary person. i have in my possession a precious document which perhaps provides some little evidence for this statement. it is a letter which lord denning wrote to me, in his own (almost illegible) handwriting, on 12th february, 1980. normally i would not think of quoting from a private letter to a gathering like this, without first seeking the permission of the writer. when i first received this letter, in fact, i put it aside thinking there would be time to publish it perhaps in the distant future after lord denning's death. but i have waited nearly twenty years, during which lord denning has himself published many private views about his judgments, and i hardly think he would now object to this letter receiving a little publicity. the letter was written to me just after the court of appeal's judgment in duport steel v. sirs had been overturned by the house of lords, presided over by lord diplock.3 as labour lawyers will remember, the case concerned the trade union immunities for actions done "in furtherance" of a trade dispute. lord denning and the court of appeal were for interpreting the statutory immunities narrowly,4 but the house of lords, declaring that the judges had nothing to do with policy, insisted on a wider interpretation, and at the same time insisted that the choice between a narrower or wider interpretation was not itself a policy decision. following this decision i wrote a letter to the times in which i criticised the law lords for pretending that policy had nothing to do with their own decision, even if the policy they were following was thought by them to be less interventionist than the policy followed by the court of appeal. it was in response to this letter of mine that lord denning wrote to me, telling me how much he agreed with what i had written. i will quote from one part of his letter: "i like your last paragraph [he wrote this was the 3 [1980] 1 all e.r. 529. 4 for the technical points at issue, and criticism of lord denning's position see the chapter on labour law by paul davies and mark freedland in lord denning: the judge and the law ed.s jowell and mcauslan (sweet & maxwell, 1984) at pp. 387-411. 3 denning law journal paragraph in which i suggested that the law lords' decision was itself a policy decision] a propos of which i have had hundreds of letters of support for our view and none against whereas lord diplock has had only letters of abuse. one trade unionist of over 30 years' standing wrote and told him that we were right and sent me a copy of the letter. surely at bottom the law must depend on the support of the majority of the people." this is the first time that i have ever heard of judges receiving letters from the public approving or disapproving of their decisions; and i wonder what sort of a hoard of such letters awaits research by future biographers of lord denning. some people may think that this letter reveals, or confirms, that there was a simplistic streak in lord denning's value system. could he really identify from a handful of letters like this what the majority of the people wanted the law to be? where cases involve, as they so often do at the appellate level, conflicts of fundamental principle, both or all of which have plenty of popular support, is it enough simply to follow one of these principles with resounding declarations of its justice and fairness, without explaining why other conflicting principles involved in the case are not equally decisive? i do not think lord denning's choice of value systems can escape the accusation of often being simplistic, but at least in the field of contract law, this does not often give rise to problems. in this area lord denning had, i think, two basic principles which he followed pretty consistently, and which would be largely applauded both by the general public and by most lawyers too. he believed, first, that there was a strong obligation on anybody who had given his word, to abide by it; secondly, this belief was tempered by the qualification that someone who had only given his word by signing up to a detailed and basically unfair contract, should not be treated as though he had consciously agreed to all the contents of the document. but to my task: lord denning's contribution to the law of contract. in my chapter of the book, lord denning: the judge and the law published shortly after his retirement, i surveyed lord denning's contribution to the law of contract in detail, a survey which occupies some 20 pages. obviously there would be little point in my going over this survey again now, so what i propose to do is to select three or four cases which illustrate different facets of lord denning's work in contract law, as well as some of the problems to which the innovator's work can give rise. any detailed review of lord denning's contribution to the law of contract must inevitably start with the celebrated high trees case, the 4 contract law foundation of the modem law of promissory estoppel. 5 of course the case and its subsequent history are too well known to require detailed examination today, so i am not going to talk about promissory estoppel itself. i propose to mention a number of side issues of some interest. the first is that it undoubtedly required courage to do what lord denning did, and use the case as a vehicle for introducing what was a substantially new doctrine into the law, even though it was one which had respectable antecedents, and could easily have been developed in the nineteenth century, had it not been for the troublesome house of lords' decision in jorden v. money. but in 1946 judges were not expected to introduce new doctrines into the law, least of all newly appointed puisne judges. let me quote from lord devlin's foreword to the book on lord denning: "when tom and i were young the law was stagnant. the old-fashioned judge looked to the letter of the statute and for the case on all fours. he knew that he had to do justice according to law. either he assumed that the law when strictly applied would always do justice or else he decided that if it did not, it was not his business to interfere." remember that only a year or so after the high trees case the house of lords in read v. lyons had magisterially proclaimed that it was not the function of the house of lords to rationalise the law of england.6 but that, of course, was not lord denning's way, although it was not, i think, a desire to rationalise the law, so much as a desire to make it more fair, which motivated lord denning. in fact lord denning had clearly, as he tells us in his autobiography, earmarked the doctrine of consideration as a suitable subject for judicial reform even before he got on the bench, and in the high trees case he discovered the perfect vehicle for what he wanted to do. it will be remembered that the landlords in this case had, in early 1940, agreed to a reduction in the rent of a block of flats because the tenants were having great difficulty in letting the flats during the prevailing war conditions. by mid 1945 these conditions had altered and the flats were fully let, and the landlords now claimed the full rent again. but they only sued for the full rent for the period after mid 1945. what was so useful about the case was that lord denning was able to have his say by way of obiter dicta rather than by way of actual decision. of course, that might seem rather unsatisfactory, because the dicta of a puisne judge do not rank very high in the scale oflegal authority. but from lord denning's viewpoint it was far more satisfactory for him to have his say by way of 5 [1947] 1 k.b. 130. 6 [1947] a.c. 156. 5 denning law journal dicta, while actually giving judgment for the landlord for the rent foregone during the first two quarters after the end of the war, because he was then able to expound his view of what would have been the applicable law if the landlord had claimed the rent for earlier periods, without the risk of the case going to appeal and being reversed. an appeal, as he himself explains in his autobiography, might have "ruined everything." he was almost certainly right too. had lord denning's dicta on promissory estoppel come before an appeal court in 1946 or 1947 it seems only too likely that they would have been rejected as contrary to the fundamental principles of the doctrine of consideration, and a great deal of trouble would have been caused subsequently as judges would have been forced to find new tools to do the job which is now routinely done by promissory estoppel. all this throws a rather interesting side light on how an ambitious judge, who wants to make a name for himself as a moderniser, can pursue his own agenda. some might wonder about the propriety of a judge having his own agenda even though in this particular case, the outcome was almost certainly beneficial for the development of the law. but then lord denning himself, a few years later, told us how judges could be divided into the "bold spirits" and the "timorous souls,"? and there was never any doubt into which category he placed himself. so the result of the high trees case can perhaps be expressed in modem terms, as bold spirits 1, timorous souls o. my second contract case is not strictly a contract case at all, nor is it just one case, but a whole series of cases. i refer to the cases dealing with the liability of stevedores for negligent damage to goods caused while they are being loaded or unloaded. as contract lawyers are well aware, stevedores have for many years been trying to escape or limit their liability for negligence by one means or another; and in particular, by relying on various limitations or exemptions in the bills of lading governing the relations between the carrier and the owner of the goods. in scruttons v. midland silicones battle was joined on this issue.8 in this case the stevedores were sued by the consignees of the goods for negligently damaging the goods in question. had the carriers sued the stevedores, the stevedores could have relied on a limitation clause restricting their liability to $500. had the consignees sued the carriers, the carriers likewise were entitled to limit their liability to $500. it will be noted that the context is purely a commercial one, and is ultimately about the incidence of insurance. realistically speaking it has nothing to do with making negligent parties pay for their negligence, or with exemption clauses in cases affecting consumers. yet despite this context, diplock j., at frrst instance, an unanimous court of appeal, and four judges in the house of lords used 7 in his celebrated judgment in candler v. crane, christmas & co. [1951] 2 k.b. 164 at 178. 8 [1962] a.c. 446. 6 contract law the doctrine of privity of contract to justify a decision against the stevedores. the limitation clauses in the two contracts were simply evaded by this decision. lord denning dissented in splendid isolation, suffering not merely a crushing defeat by weight of numbers, but also the very pointed rebukes of lord simonds against judicial reformers and heretics. in this commercial context it is not at all surprising that lord denning should have felt that the stevedores should be entitled to the benefit of the limitation clause, but he had also some very convincing arguments about the historical development of the modern law of negligence to back up his dissent. today, lawyers are so imbued with the idea that liability in negligence has nothing to do with contract, and that it is a fallacy the famous "privity of contract fallacy" to suggest that liability in negligence can be defeated or restricted by a contract with a third party, that most lawyers are unaware that in the nineteenth century liability in tort in such circumstances would often not have arisen at all. in a series of cases dealing with the liability of the railway companies the courts showed a real awareness of the difficulties that limitation and exemption clauses would create, if, in such circumstances, contracts were brushed aside and liability imposed in tort. after donoghue v. stevenson9 these cases were largely forgotten and, as lord denning protested, the double unfairness was developed of first imposing a liability where there was a contractual context in which the liability was not assumed, and then secondly, denying the efficacy of any limits on liability that had been agreed between the contracting parties. so it looks very much as if the score here was lord denning 1, timorous souls 8. but this was not the end of the story. as commercial lawyers are well aware, in the eurymedon,io in 1974, the privy council found a way of allowing stevedores to benefit from limitation and exemption clauses in bills of lading, by exploiting a loophole suggested by lord reid in midland silicones. by following a somewhat complex and possibly dubious contractual route it became possible, after all, to hold that the stevedores, in unloading the goods were accepting an offer made in the bills of lading, at least where they were aware of the terms of the bills of lading as they were in that case. i have always had a soft spot for this decision, because at the time when the case was wending its way through the lower courts in new zealand i was teaching at the australian national university in canberra, and i actually visited new zealand shortly after mr. justice beattie had given his judgment in that case, in the same sense as the ultimate privy council decision. i told him in all humility that i entirely agreed with his opinion, and so i was naturally somewhat annoyed when it was reversed by 9 [1932] a.c. 562. 10 [1975] a.c. 154. 7 denning law journal the new zealand court of appeal. i remember telling my students that i thought the odds were about 6:4 that the privy council would restore mr. justice beattie's decision, and when they did so by a majority of 3:2 my only regret was that i had not put a substantial sum of money on my prediction. i have no doubt that lord denning would have felt pretty well vindicated by the privy council decision, even though the reasoning in that case was very far from his own reasoning in midland silicones. but even this was not the end of the story, because more recently, a further series of cases have been decided in the court of appeal and the house of lords in particular norwich city council v. herve/i in 1989, and the marc richl2 case about the liability of classification societies, in the house of lords in 1995 in which it has been held that a complex set of contractual relations, backed by standard insurance practices, may itself be a good reason for denying that liability in negligence arises at all. these cases provide almost total vindication for lord denning's analysis in midland silicones, and constitute a remarkable illustration of the wheel coming full circle with few judges, perhaps, fully aware of precisely what route the courts have taken. so after all, the score here must be at least, lord denning 3, timorous souls 2. my third illustration of lord denning's work in contract law comes from a whole series of cases concerning the famous, or perhaps i should say, notorious doctrine of fundamental breach. lord denning himself has told the whole story in his usual limpid style in his judgment in the court of appeal in the famous george mitcheu13 case in 1982 and one of the great misfortunes of lord denning's long sojourn in the court of appeal is that his judgments even in cases largely upheld in the house of lords are now unlikely to be read by students. in this particular case lord denning sets out the whole story of the extensive use of exemption clauses against consumers, their effectiveness despite the lack of real choice by consumers and even commercial concerns, the invention by the courts of the doctrine of fundamental breach, its elevation from a rule of construction into a rule of law, and its overthrow by the house of lords coinciding largely with the movement for legislative reform which culminated in the unfair contract terms act 1977. once again it is possible to see this history as an example of failure by lord denning to carry the day. after all, his attempt to tum the doctrine of fundamental breach into a rule of law was twice rejected by the house of lords. but on closer analysis there is much to be said for the view that lord denning actually succeeded in what he was trying to do. in 11 [1989] 1 all e.r. 1180. 12 [1995] 3 all e.r. 307. 13 [1983] 1 all e.r. 108 at 113-117; affirmed [1983] 2 a.c. 803. 8 contract law the first place, for something like 15 years the "rule of law" theory held sway, and undoubtedly was applied in numerous cases dealing especially with hire-purchase contracts. there are probably a dozen reported court of appeal judgments from this period which can be interpreted in this sense, and very likely there were hundreds of county court cases following them in which some sort of substantial justice was done by the application of this doctrine. secondly, only when legislative change was already in the pipeline was the "rule of law" theory finally rejected by the house of lords, so that this tool was only effectively discarded when other and better tools to do the same job became available. thirdly, even the house of lords, in rejecting lord denning's "rule of law" theory admitted that the doctrine had served a useful purpose while it lasted. and finally, when the house of lords did eventually settle the law, the law lords agreed with lord denning (rather than some of his more hesitant colleagues in the court of appeal) that the hairsplitting approach to the construction of limitation clauses could now be discarded.14 once legislative control of limitation clauses was available, there was no longer any purpose in narrow and tortuous methods of construction. so once again, any realistic appraisal of lord denning's efforts and he would surely be the first to admit that that is the only sort of appraisal in which he would himself be interested must concede the victory to lord denning. perhaps this would be best expressed today by suggesting that he won on penalties. my final example of the work of lord denning in the area of contract law does represent one of the real defeats suffered by him. i refer of course to lord denning's efforts to evade or override the doctrine of privity of contract, whether by use of common law or equitable theory, or by invoking the famous section 56 of the law of property act, which reached their climax in beswick v. beswick. is once again, the story is too well-known to require any detailed rehash on an occasion such as this. but i will make three comments on the case and its outcome. first, lord denning quite characteristically had a fall-back position in case his main attack failed. it seems to have been in the court of appeal that it was first suggested that the widow in this action could, in her capacity as administratrix of her husband's estate, obtain a decree of specific performance of the agreement with the nephew, and it was this aspect of the decision which was ultimately upheld in the house of lords. indeed, had it not been that the parties were (as they surely must have been) legally aided it seems inconceivable that there would ever have been an appeal to the house of lords at all, so trivial were the sums at issue, and so unlikely 14 unfortunately there is still authority that this approach may have survived in the case of complete exemption clauses, but it is perhaps unlikely to survive much longer. l5 [1966] ch. 538. 9 denning law journal was it that the defendant would be allowed to escape scot-free. this may, therefore, have been one of those cases, like the high trees case in which lord denning had foreseen that an appeal would "ruin everything," and had tried to guard against that possibility by granting the decree of specific performance. if so (and all this is of course highly speculative) lord denning here failed to achieve what he had hoped. appeal was taken, of course, and lord denning's attempt to overrule the doctrine of privity with the aid of section 56 of the law of property act was finally quashed by the house of lords. so this must rank as a clear defeat for lord denning: perhaps best expressed as bold spirits 2, timorous souls 3. yet looking back on all this, with the aid of 35 years of hindsight, i am far from convinced that this was not another game which lord denning should have won. of course nobody really doubts that, as a matter of substantial justice, lord denning had right on his side; and if the law is really as settled by the house of lords in beswick then reform is needed. so the only real question is whether reform here should be left to parliament or carried through by the judges. is it really evident that the doctrine of privity is more suitable for statutory reform than for judicial reform? it is hardly an area of law where many members of parliament would concern themselves. it has no political interest, no sex appeal. is it is not just that sort of area of private law where incremental change, case by case development and analysis, actually works best? the changes are largely marginal after all, if only because so many of the most pressing cases where third party rights need to be recognised have and indeed had in 1963, already been dealt with by legislation. the consequential problems which may arise when third party rights are recognised may sometimes be serious, but could surely have been dealt with on a case by case basis by the courts. no other common law country has found this an insuperable difficulty. so perhaps at the end of the day this is one of those games in which the final result did not really reflect the merits of the play. the timorous souls may have won, but it is certainly arguable that they did not deserve to do so. so after this brief and somewhat selective survey of lord denning's contract cases, i find myself (at least retrospectively) cheering him on, very much as a football fan may support his own team. i have, of course, said nothing about the detailed play. we all know that lord denning's judicial technique, his handling of precedents and arguments, can often be faulted. he does not always play fair. precedents are often mishandled, and wilfully misinterpreted; the desired result dictates the nature of the reasoning more consciously and more determinedly than is usual with judges in the english tradition; the fairness of the desired result is often taken for granted rather than openly justified; and so on. all these faults are plain to see in many of the contract cases i have surveyed. and the faults would be serious indeed 10 contract law if they were indulged in by too many appeal judges at the same time but after all, lord denning was unique. it is perhaps a paradox to conclude that lord denning did a great deal of good to the law of contract, but at the same time to recognise that it is a good thing there was only one lord denning. 11 a question of causation: knowing assistance and the "duty to inquire" simon baughen* after the decisions in agip (africa) ltd. v. jackson and others i (agip) and lipkin gorman v. karpnale ltd. and another2 (lipkin gorman), dishonest assistance in a dishonest breach of a fiduciary relationship seems to be what is required to establish liability for knowing assistance.3 in assessing the state of a defendant's knowledge reference can be made to the five "baden" categories of knowledge. 4 the first three categories indicate dishonesty: (1) the defendant had actual knowledge of the fraud (2) the defendant wilfully shut its eyes to the obvious, (3) the defendant wilfully and recklessly failed to make such inquiries as an honest and reasonable man would make. the last two categories indicate only negligence: (4) the defendant knew of circumstances which would indicate the facts to an honest and reasonable man, (5) the defendant knew of circumstances which would put an honest and reasonable man on inquiry. what is less clear, however is when the relevant "dishonesty" will be found on the facts. this article seeks to examine two areas of uncertainty arising out of the question of causation. the first concerns a defendant who suspects, but does not actually know, that it is giving assistance to a dishonest scheme but dares not seek clarification for fear that its suspicions might be confirmed. can such a defendant argue that it is not liable for knowing assistance on the grounds that any questions it had asked * lecturer in law, the university of bristol. the author wishes to thank mrs. helen norman of the university of bristol who kindly commented on a previous draft of this article. the views expressed in the article are those of the author alone. i. [1991] 3 w.l.r. 116. 2. [1991] 3 w.l.r. 10 (hl). of particular relevance to the issues addressed in this article is the judgment of the court of appeal, [1989] i w.l.r. 1340. 3. the court of appeal's decision, given by fox l.j., in agip must qualify this assertion to some extent. at p. 131 g he refers to the relevant test of knowledge as that set out in selangor united rubber estates v. cradock (no 3) [1968] i w.l.r. 1555, namely, "circumstances which would indicate to an honest and reasonable man that such a [fraudulent] design was being committed or would put him on inquiry as to whether it was being committed". however, his subsequent analysis of the facts makes it clear that dishonesty is the relevant factor. at p.l13 g he states, ''the question is whether [they] acted honestly". 4. see baden. delvaux and lecuit v. societe general pour favoriser ie developpement de commerce et de [,industrie en france s.a .. [1983] b.c.l.c. 325. 27 the denning law journal would have been answered in such a way as to allay its suspicions? the second concerns the extent to which the plaintiff's own negligence can bar or limit its right to sue a defendant for knowingly assisting the fraud. 1. the "duty to inquire" and causation. (a) a difference of approach in agip and eagle trust? this issue appears to be subject to two differing views at first instance (the issue was not considered in fox l.j.'s judgment in agip). in agip millett j. strongly rejected the idea that a dishonest defendant could raise the defence that any further inquiries it might have made would have failed to flush out the fraudster. the defendant's argument was based on the judgment of peter gibson j. in baden5 which discussed the position of a party who is put on inquiry but fails to inquire and concluded that the plaintiff must prove that the inquiry would have disclosed the truth; the burden lying on it to prove a causal connection between the failure to make inquiry and the loss. millett j. vigorously rejected the idea that this argument had any relevance to cases of dishonesty as opposed to constructive notice. in his view the argument "derive [d] from a misunderstanding of the basis of the constructive trustee's liability. he is not liable for failing to make inquiry, but for the misapplication of the plaintiff's property. he is under no duty to make inquiry, his only duty is to act dishonestly. if he makes inquiry, he does so for his own protection. if he does not make inquiry, the loss is not caused by his failure to do so but by his participation in the misapplication of the plaintiff's funds. he is liable only if he acted with knowledge; and this must be judged in the light of all the circumstances known to him and any explanation actually given to him. but it is not, in my view, to be judged considering the hypothetical explanations which might have been given to him ifhe had sought them. if it were otherwise, his liability would depend on whether the fraudster would have been sufficiently inventive to be able to supply a plausible explanation if asked for one. in the present case it would depend on whether the defendants should be assumed to have directed their inquiries, which ex hypothesi they did not make, to mr. zdiri [the fraudster] or to his superiors. such considerations are or ought to be irrelevant. "6 in contrast, vinelott j. in eagle trust pic v. sbc securities ltd. appeared to suggest that such a line of enquiry is relevant to the issue of dishonesty. 7 dealing with the allegation that dishonesty was borne out by a failure to make inquiry, he said: "savory milln may have felt some anxiety, and even entertained some suspicion, as to how ferriday had managed to arrange for the £13.5m to be paid by anser 5. ibid. 6. supra.n.1 at pp. 295 g-296 c. 7. [1992] 4 all e.r. 488. 28 a question of ca usa tion: knowing assistance and the' 'duty to inquire" on his behalf. but it is to my mind going altogether too far to say that any honest and reasonable man would either have inferred that, despite the denial to eagle's solicitors, he was indemnifying the sub-underwriters or some of them on behalf of eagle or that the £13.5m was eagle's money which had been misappropriated by ferriday in a gross breach of his duty as a director and in contravention of s.151; or that an honest and reasonable man would not have applied the money in discharge of the liabilities of earnshaw haes and ferriday until he had been satisifed by inquiry that the moneys were properly paid. it is not easy to see what further inquiries savory milln could have made. if inquiry had been made of ferriday and he had been innocent of any wrongdoing, he might well have resented the inquiry; and if guilty, it is hardly likely that, faced with a second inquiry, he would have confessed at all. and . . . if he had refused to answer, what further inquiry could savory milln have made? it would hardly have been open to them to invite eagle to play detective and investigate their own chief executive. "8 (b) the facts of agip. at first glance, the above passages suggest a conflict of judicial opinion as to the relevance of causation and the duty to inquire. however, a closer examination of the facts of those two cases suggests that this conflict is more apparent than real. of particular significance, it is submitted, is the state of the defendant's knowledge at the time the so-called "duty to inquire" arose. in a gip the fraud arose when mr. zdiri, a senior officer of the plaintiff, fraudulently altered the name of the payee on a payment order, after it had been signed, in favour of baker oil. baker oil had recently been incorporated and its two directors and shareholders were a partner of jackson's and an employee. thereafter the money was transferred to jackson's account and was eventually transferred overseas to various recipients. at the time jackson's effected these transfers, millett j. stressed that they already had the requisite guilty knowledge, therefore any "duty to inquire" would strictly be a misnomer. the purpose of any such enquiry would be purely for jackson's own protection. millett's finding was based upon the following facts. for the two years preceding the fraud some us$ 10m had come from the plaintiffs to kinz, via companies set up through jackson's, which ran a jewellery business in france. jackson's instructions in these transactions came from the recipients and not the plaintiffs. "they knew of no connection or dealings between the plaintiffs and kinz or of any commercial reason for the plaintiffs to make substantial payments to kinz. they must have realised that the only function which the payee companies or euro-arabian performed was to act as "cut-outs" in order to conceal the true destination of the money from the plaintiffs. they must also have realised that 8. ibid. at p.511 a-d. 29 the denning law journal the only purpose in having two' ,cut-outs" instead of one was to make impossible for investigators to make any connection between the plaintiffs and kinz without having recourse to lloyd's bank's records; and their object in frequently replacing the payee company by another must have been to reduce the risk of discovery by the plaintiff."9 moreover, a letter of 14th august, 1984 from knapp-fisher showed that mr jackson was concerned at the possibility that the plaintiffs might obtain disclosure of lloyds bank's records, discover what had happened to the money and try to recover it. against this background, millett j. found that jackson and griffin' 'obviously knew that they were laundering money. they were consciously helping their clients to make arrangements that they were laundering money . . . they must have realised that their clients might be involved in a fraud on the plaintiffs."10 although jackson and griffin never gave evidence, the external evidence, such as the knapp-fisher letter, pointed to the fact that they may have believed that the fraud being committed was a scheme to avoid tunisian exchange control, possibly with the connivance of the plaintiffs. however, millett j. attached no significance to the fact that jackson and griffin may have got the details of the fraud wrong. what mattered was that they must have known that the banking arrangements set up through themselves could only have been established with a view to perpetrating a fraudulent purpose. this would be enough to establish the necessary dishonesty on their part to make them liable to the plaintiffs in an action for knowing assistance. millett j. also went on to mention the fact that the defendants never made any enquiries or took any steps to satisfy themselves that the arrangements had the plaintiffs' knowledge and approval. in the light of his subsequent comments on the issue of causation, however it is clear that he did not regard this factor as being essential for establishing dishonesty. effectively, millett 1. was treating this as a "baden 2" case rather than a "baden 3" one. despite fox l.j.'s unfortunate use of the selangor test for knowledge, it is clear that he regarded the crucial issue as being whether or not the defendant had acted honestly. in this connection he concluded that millett j. rightly carne to the conclusion that the defendants must have known they were laundering money and "were consequently helping their clients to make arrangements to conceal some dispositions of money which had such a degree of impropriety that neither they nor their clients could afford to have them disclosed. "11 like millett j. he placed particular emphasis on knapp-fisher's letter to jackson's of 14th august, 1984: "mr. jackson and mr. griffin were being given advice on the possibility that a payment or payments might involve a fraud on agip. having got to that point it seems to me that persons acting honestly would have pursued the matter with 9. [1989] 3 w.l.r. 1367 per millett j. at 1390. 10. ibid. ii. supra. n.l at p.133 a. 30 a question of ca usa tion: knowing assistance and the' 'duty to inquire" a view to satisfying themselves that there was no fraud. but there is nothing to show that they did that. they made no inquiries of agip at all. they let the matter continue." 12 like millett j., fox l.j. referred to the defendants' failure to make inquiries, but unlike millett j., did not go on to examine how critical that failure was in establishing dishonesty in the defendant. (c) the facts of eagle trust in october 1987 the plaintiff company made a take-over bid for a group of companies. the defendant company agreed to underwrite the cash alternative and the rights issue which formed part of the offer. the defendant sub-underwrote its liability, using a list of underwriters introduced by plaintiff's chief executive, mr. ferriday. the list included ferriday himself as underwriting 25.5 million shares. the plaintifflater claimed that the defendant ought to account for £13.5 million paid under the subunderwriting arrangements. it alleged that mr. ferriday had fraudulently arranged for its money to satisfy obligations, including his own arising out of the subunderwriting, and that the defendant ought to have known of this or have been put on enquiry. in this connection two particular facts were relied on. first, as mr. ferriday's wealth was largely tied up in eagle, after "black monday" it ought to have been clear that he would have lacked the funds necessary to satisfy his sub-underwriting obligations. secondly, mr. ferriday had arranged the sub-underwriting list and had altered it at a late stage. the allegation was made that, in the case of martin boston & co.lmartin boston, the list was changed after they had denied they were liable and their obligation had been taken over by ferriday. however, when asked by eagle's solicitors, mr. ferriday had denied acting on behalf of that firm. in contrast to the facts in agip, this factual base on its own would be insufficient to establish that the defendant must have known that mr. ferriday was discharging his liabilities out of eagle's money; especially in the light of mr. ferriday's earlier denial to eagle's solicitors. the "duty to inquire" serves a different function than on the stronger facts of agip. there it served only as a possible means whereby a defendant might extricate itself from pre-existing guilty knowledge. in eagle trust it serves as a means of establishing whether that guilty knowledge ever existed, a potential "baden" 3 case. this, therefore, provides a possible basis for reconciling the two decisions. causation will be relevant, but only if the "duty to inquire" is itself necessary to establish guilty knowledge by the defendant. on closer examination, however, this distinction is unconvincing. in eagle trust, the defendant was not dishonest and therefore was not liable for knowing assistance. a key factor in this finding was ferriday's earlier denial to eagle's solicitors. the issue is not affected by the question of what additional information further inquiries 12. ibid. at p.134 e. 31 the denning law journal could have revealed. it is very difficult to distinguish "baden 3" knowledge from "baden 5" knowledge and it is submitted that millett j. was correct to state in agip that issues of causation should only be relevant to questions of constructive notice which have no place in the fraud based action of knowing assistance. moreover, to treat as relevant this issue of causation runs the risk of diluting the deterrent effect of the action on potential fraudulent assisters. it is unfortunate that this issue has yet to be clarified at court of appeal level. fox l.j. ignored it altogether in a gip and the state of the pleadings in lipkin gorman precluded any serious examination of what facts could constitute dishonesty. what dicta there are in that case tend to confirm the muddled thinking identified by millett j. in agip. may l.j., criticising selangor, stated that "it was wrong to equate the duty to inquire where there has been fraud and the bank is proved to have known of it with that where all that is being alleged is that the bank has been negligent". j3 with respect, if the bank is proved to have known of the fraud, that disposes of the issue and any question of a duty to enquire becomes irrelevant. however, the words used by may l.j. identify the key problem with using a "duty to inquire" to establish dishonesty, namely that it tends to confuse dishonesty with mere negligence. this confusion is illustrated by fox l.j. ' s use in a gip of the selangor test which covers both negligence and dishonesty, whereas his subsequent analysis of the facts is directed entirely towards dishonesty alone. it is submitted that the law in this area would be clearer if the concept of a "duty to inquire" were to be abandoned altogether and knowledge categorised broadly as either dishonest or honest but negligent. 2. causation, contributory negligence and "clean hands". in lipkin gorman cass, a salaried partner in a firm of a solicitors abstracted money from its client account to fund his gambling habits. the solicitor sought to recover the money from either the bank or the playboy club where the gambling had taken place. the claim against the bank was framed as one for breach of a duty of care owed to the solicitors as its clients in both contract and tort and also as a claim for knowing assistance. alliott j. found for the solicitors in both claims, but limited the amount of their recovery to the losses occurring in the period from the breach of duty by the bank to 1st october, 1980 by which time cass's fellow partners should have discovered the full extent of his embezzlement for themselves. by that time one of cass 's partners had confronted him with a false claim for travel expenses and had accepted cass's explanation that that was all that was owed. however, cass stayed on as a signatory and from that date was able to steal two further sums of £2, 102.05 and £ 120,698.61. from that date, their contributory negligence was 100 per cent, so barring the contractual action in which liability was the same as in negligence, independently of the existence of any contract. the knowing assistance claim was also barred on 13. [1989] 1 w.l.r.1340atp.1355h. 32 a question of causa non: knowing assistance and the' 'duty to inquire" the grounds that it would be inequitable to give them any relief. may l.j. endorsed this approach on the grounds that the plaintiff could no longer come to the court with "clean hands" .14 it is submitted that this approach is quite wrong. there is no equivalent to contributory negligence in actions for breach of trust. the nearest equivalent is a defence that the plaintiff consented to the breach of trust. this patently does not cover the plaintiff s conduct in lipkin gorman. nor does the doctrine of "clean hands" operate against a negligent plaintiff. in williams v. staite misconduct by a licensee towards the freeholder did not affect its claim to an estoppel licence. is some element of dishonesty in the plantiff is required before it ceases to have "clean hands" as with the attempt to deceive the court with forged documents in j. willis & sons v. willis, another licence case. 16 on the facts of lipkin gorman it is easy to see how both alliott j. and the court of appeal came to the conclusion they did. on the evidence of banking practice in that case, some form of dishonesty would be required to establish a breach of duty of care in contract and tort. therefore it is easy to assimilate that liability with knowing assistance and to conclude that if contributory negligence operates on one action some equivalent must be found for the other. the actions are not identical, however, but only appear to be so because the effect of the evidence as to banking practice is that a bank which honours its mandate can never be negligent unless it is also dishonest. the extended concept of "clean hands" is quite inappropriate to an action based on the dishonesty of one who assists a fraudster. for instance, if in agip the plaintiff had been careless in allowing mr. zdiri to perpetrate his fraud, neither of the defendants would have been any less dishonest in assisting him. to curtail the plaintiffs recovery would be to punish it for carelessness and allow a fortuitous escape to the fraudster and accomplices. conclusion two sets of muddled thinking have been going on in the knowing assistance cases discussed above. the first is to allow the similarities between' 'baden 3" and "baden 5" knowledge to blur the boundaries between dishonesty and negligence and allow questions of causation relevant to the latter issue to intrude onto the former. the second is the evidential quirk in lipkin gorman that a bank honouring its mandate can never be negligent and honest. this has led both alliott j. and the court of appeal to assimilate the bank's contractual liability to its customer with its liability for knowing assistance. however, the basis of these actions is quite different and to seek an equivalent to contributory negligence in knowing assistance is not required on grounds of consistency and has the undesirable effect of diluting any deterrent effect the action for knowing assistance may have. 14. ibid. at p.1360 a. 15. [1979] ch. 291. 16. [1986] 2 e.g.l.r. 62. 33 51 denning law journal 2020 vol 32 p 51-86 what are the legal mechanisms for seeking solutions to disparities in the delivery of care in the nhs and where does liability lie? affifa farrukh* this fundamental principle: that we are all citizens, and equal citizens, of one state:1 muhammad ali jinnah * e-mail: farrukh_affi@yahoo.com 1 muhammad ali jinnah’s first presidential address to the constituent assembly of pakistan (11 august 1947) para 7. 2 jh jones, bad blood: the tuskagee syphilis experiment (the free press 1992) 1. abstract this review deals with the potential role of commissions and inquiries into delivering a just service to patients from ethnic minorities. it takes as an example the experience of people with inflammatory bowel disease and the national health service in the united kingdom. although there are many legal safeguards, the avenues open to groups of patients who experience discrimination, are limited and generally ineffective. government inspired responses such as commissions and inquiries are inadequate and not fit for purpose. key words: discrimination, healthcare, nhs, commissions, inquiries, judicial review introduction ethnic discrimination in delivery of health care is a worldwide problem. wellknown examples include the notorious tuskegee experiment where the us public health service withheld appropriate treatment for syphilis from more than 600 african american share croppers between 1932 and 1972.2 however, the issue was and is much more widespread than the deep south. in 1988 kjellstrand demonstrated that non-white patients were half as likely to receive a kidney 52 what are the legal mechanisms for seeking solutions to disparities in the delivery of care in the nhs transplant across the usa.3 similarly, black patients were twice as likely to go untreated for bladder cancer.4 by the end of the 20th century it was well recognised within the usa that black patients were less likely than white patients with a comparable disease burden to undergo cardiac revascularisation, leading to lower survival rates.5 in 1998 bhopal from newcastle summarised the effect of discrimination on health care in the usa and drew attention to similar issues in the uk.6 examples of discrimination in the delivery of care in the uk in 1998 a study from leicester had shown that south asian patients admitted into coronary care units received poorer care than their european counterparts.7 such differences in the nature of the support and treatment offered to patients from ethnic minorities in the uk continue to be reported. black women with breast cancer were less likely to have surgery and more likely to be simply offered chemotherapy, whilst pakistani women were less likely to be offered radiotherapy or hormone treatment than white women.8 in the uk in the 21st-century ethnic minority patients on the renal transplant register are still less likely to receive a donor organ than white patients.9 in the field of mental health, black service users tend to be given injectable depot treatments rather than offered tablets or cognitive 3 cm kjellstrand, ‘age, sex and race inequality in renal transplantation’ (1988) 148 archives of internal medicine 1305. 4 wj mayer and wp mcwhorter, ‘black/white differences in non-treatment of bladder cancer patients and implications for survival’ (1989) 79 american journal of public health 772. 5 ed peterson and others, ‘racial variation in the use of coronary – revascularization procedures. are the differences real? do they matter?’ (1997) 336 new england journal of medicine 480. 6 r bhopal, ‘spectre of race and racism in health and health care: lessons from history and the united states’ (1988) 316 british medical journal 1970. 7 jt lear and others, ‘myocardial infarction and thrombolysis: a comparison of the indian and european populations on a coronary care unit’ (1994) 28 journal of the royal college of physicians (london) 143. 8 rh jack, ea davies and h møller, ‘breast cancer incidence, stage, treatment and survival in ethnic groups in south east england’ (2009) 100 british journal of cancer 545. 9 u udavaraj and others, ‘uk renal registry 16th annual report: chapter 6 demographics and outcomes of patients from different ethnic groups on renal replacement therapy in the uk’ (2013) 125 nephron clinical practice 111. the denning law journal 53 behavioural therapy.10 although such differences are not policy driven it seems unlikely that they are due to overt racism. in a study of nine nhs trusts with significant south asian populations only three were significantly less likely to provide expensive biologic therapy for south asian patients with crohn’s disease.11 in one of these trusts, a separate study found that south asian patients with ulcerative colitis experienced sub-standard care over a 10-year period when compared to white british patients.12 this included being seen less often by consultants, less frequent investigations and being discharged more frequently. there was no evidence that they had milder disease as they needed surgery as often as white british patients. national health service (nhs) workers have shown patients various forms of discrimination. for example, a qualitative study of 30 registered nurses working in hospitals in leeds identified racism affecting their practice in their care of pakistani patients.13 earlier a small group of south asian inpatients had described how they felt that they needed to fit into what they described as an ‘english place’.14 in middlesbrough, only 5 per cent of pakistani patients were told of the availability of professional translators to help with consultations.15 problems with effective communication between district nurses and south asian patients meant compliance with treatment regimes was not fully understood and assessments of patients’ ongoing needs were inaccurate.16 nhs england recognised the importance of this issue in a policy statement directed at ensuring that a high quality interpreting and 10 j das-munshi, d bhugra and mj crawford, ‘ethnic minority inequalities in access to treatments for schizophrenia and schizoaffective disorders: findings from a nationally representative cross-sectional study’ (2018) 16 bmc medicine 55. 11 a farrukh and jf mayberry, ‘ethnic variations in the provision of biologic therapy for crohn’s disease: a freedom of information study’ (2015) 83 medicolegal journal 104. 12 a farrukh and j mayberry, ‘patients with ulcerative colitis from diverse populations: the leicester experience’ (2016) 84 medicolegal journal 31. 13 jd cortis, ‘meeting the needs of minority ethnic patients’ (2004) 48 journal of advanced nursing 51. 14 v vydelingum, ‘south asian patients’ lived experience of acute care in an english hospital: a phenomenological study’ (2000) 32 journal of advanced nursing 100. 15 r madhok, a hameed and r bhopal, ‘satisfaction with health services among the pakistani population in middlesborough, england’ (1998) 20 journal of public health medicine 295. 16 k gerrish, ‘the nature and effect of communication difficulties arising from interactions between district nurses and south asian patients and their carers’ (2001) 33 journal of advanced nursing 566. 54 what are the legal mechanisms for seeking solutions to disparities in the delivery of care in the nhs translation service was available.17 unfortunately the care quality commission has shown this is often not readily available with hospitals making use of limited telephone translation services and non-professional staff.18 the nature of the evidence and potential responses over the last 20 years a substantial body of evidence has demonstrated that there is significant discrimination in the way health care is accessed and delivered by the nhs. this discrimination has an ethnic basis and can have a direct impact on morbidity and mortality. the studies have been conducted on cohorts of patients and used epidemiological techniques. individual cases have not been reported in the medical literature and when, and if, litigation has been contemplated it is likely such cases were settled prior to any trial on a no admission of liability basis and have included clauses about confidentiality. however, there is also evidence that discrimination based on ethnicity is not universal and so provides hope that appropriate interventions, including legal ones, might change such behaviour patterns. indeed sir william macpherson summarised the situation by suggesting: it is incumbent on every institution to examine their policies and the outcomes of their policies and practices to guard against disadvantaging any section of our communities… there must be an unequivocal acceptance of institutional racism and its nature before it can be addressed.19 this review will investigate the potential role of judicial processes in dealing with discrimination in the delivery of care, as education, non-legal interventions and published research alone have failed. the routes to obtaining a more just delivery of care will be considered and patients with inflammatory bowel disease will act as a model. however, the observations will apply across the board and in 17 nhs england, ‘principles for high quality interpreting and translation services (version 1.19)’ <www.england.nhs.uk/commissioning/wp-content/uploads/sites/12/2015/ 03/it_principles.pdf> accessed 4 november 2018. 18 care quality commission, university hospitals of leicester nhs trust quality report (2014) <www.cqc.org.uk/sites/default/files/new_reports/aaaa0708.pdf> accessed 4 november 2018. 19 home office, the stephen lawrence inquiry (cm4262–1, 1999) 109 </assets. publishing.service.gov.uk /gover nment /uploads/system /uploads/attachment_data / file/277111/4262.pdf> accessed 7 may 2020. the denning law journal 55 some areas all groups will be considered together. the major approaches that will be discussed will be royal commissions, inquiries and judicial review. potential legal approaches to the issue of discrimination in delivery of care to black and ethnic minorities the information available on discrimination in delivery of care to black and ethnic minorities (bem) is almost exclusively based on qualitative social research and quantitative epidemiological studies. there is no evidence publicly available of individuals who have sued in tort or contract where breach of duty has been linked to racism in the uk. to some degree this contrasts with the situation in the usa where at a press conference called by the medical committee for human rights, dr martin luther king said: “of all the forms of inequality, injustice in health is the most shocking and the most inhuman because it often results in physical death.”20 he went on to accuse the american medical association of a “conspiracy of inaction” with a call for court action against doctors to enforce the civil rights act.21 ethnic discrimination in health in uk in 1987 the commission for racial equality found that 40 per cent of white doctors and 50 per cent of bem doctors working across england believed there was discrimination in the nhs which affected people’s health.22 subsequently ahmad et al. reported that general practitioners held negative attitudes about asian patients, considering them to require more time and be less compliant.23 the issues in question are what approaches might be taken to change the situation for the bem population as a whole and how should individuals who have experienced poor care and suffered injury – the classic breach of duty and causation scenario – be best advised. 20 associated press, ‘king berates medical care given negroes’ oshkosh daily northwestern (oshkosh, wisconsin, 26 march 1966) <www.hcdi.com/2018/01/12/ dr-martin-luther-king-on-health-care-injustice> accessed 7 may 2020. 21 j hoberman, black and blue. the origins and consequences of medical racism (university of california press 2012) 27. 22 l kushnick, ‘racism, the national health service, and the health of black people’ (1988) 18 international journal of health service 457. 23 wiu ahmad, m baker and e kernohan, ‘general practitioners perceptions of asian and non-asian patients’ (1991) 8 family practice – an international journal 52. 56 what are the legal mechanisms for seeking solutions to disparities in the delivery of care in the nhs how to deal with poor care for the bem population the issue of poor care due to ethnicity is unacceptable nationally and so should be dealt with at that level. indeed, as most data relate to qualitative or large population studies, such an approach may be the only effective way in which any progress can be made. the three main routes which might be followed are: a royal commission, a public inquiry or a judicial review. 1. royal commissions royal commissions are set up by government in the name of the crown to advise in a non-partisan way on controversial issues of national importance. they are usually concerned with broad policy issues and generally take between two and four years to deliver a report. they have dealt with health issues, but their use has declined over the last 30 years. an example of such a commission was in the longterm care of the elderly.24 however, its effectiveness was limited by a dissentient note of two members who considered the proposals financially unrealistic and its main recommendation was rejected by the government.25 2. public inquiries during the last 20 years public inquiries have become significant tools for investigation of accountability. in healthcare this has included the bse and the shipman inquiries.26 beer has argued their purpose is to identify precisely what happened, 24 s sutherland, royal commission on long term care. with respect to old age (stationery office 1999) 1. 25 r stout, ‘response to royal commission on long term care’ (2000) british medical journal 315 <bmj.com/rapid-response/2011/10/28/response-royal-commission-long-termcare> accessed 7 may 2020. 26 l phillips, the bse inquiry (the stationery office 2000) 1 <webarchive. nationalarchives.gov.uk/20060802142310/http://www.bseinquiry.gov.uk> accessed 7 may 2020; j smith the shipman inquiry (the stationery office 2005) 1 <https://www.pslhub. org / lea r n /investigations-r isk-ma nagement-a nd-lega l-issues/investigations-a ndcomplaints/investigation-reports/other-reports-and-enquiries/the-shipman-inquiry-20022005-r867/> accessed 7 may 2020. the denning law journal 57 decide why it happened and who was to blame and also to identify what can be done to prevent it happening again.27 all statutory inquiries are now regulated by the inquiries act 2005. in s 2(1) it limits the remit of an inquiry so it may not “rule on, and has no power to determine, any person’s civil or criminal liability”. however, in s 2(2) it states “an inquiry panel is not to be inhibited in the discharge of its functions by any likelihood of liability being inferred from facts that it determines or recommendations that it makes”. the public have greatest trust in inquiries chaired by doctors and nurses.28 however, in any inquiry into why patients from ethnic minorities receive poorer quality care, members of these two professional groups would have an obvious conflict of interest. an example where a public inquiry into health service issues was chaired by someone without a healthcare background was that led by professor kennedy into paediatric cardiac surgery at bristol royal infirmary.29 its probing nature had a significant impact on health care in the uk. it identified a “club culture” amongst surgeons with a lack of insight into their clinical failings.30 this situation is all too reminiscent of the care experienced by bem patients. as a direct result of the inquiry some 16 years later nhs england set as its objectives: securing the best outcomes for all ….. tackling variation …. improving patient experience.31 unfortunately, this standard was only for paediatric cardiac surgery services. 27 j beer, ‘introduction’ in j beer, j dingemans and r lissack, public inquiries (oup 2011) 1. 28 institute for government, ‘general trust in the professions of individuals who have chaired public inquiries since 1990’ (2017) <instituteforgovernment.org.uk/charts/generaltrust-professions-individuals-who-have-chaired-public-inquiries-1990> accessed 7 may 2020. 29 department of health, learning from bristol: the report of the public inquiry into children’s heart surgery at the bristol royal infirmary 1984–1995 (cm 5207 – 1, 2001) 1. 30 c dyer, ‘bristol inquiry condemns hospital’s “club culture” ’ (2001) 323 british medical journal 181. 31 nhs england, ‘action to implement recommended standards nationally to be announced next week’ (2016) <england.nhs.uk/2016/06/childrens-heart-surgery-standards/> accessed 7 may 2020. 58 what are the legal mechanisms for seeking solutions to disparities in the delivery of care in the nhs 3. judicial review lord donaldson mr in r v lancashire county council ex p. huddleston described the role of judicial review in the 21st century as “a new relationship between the courts and those who derive their authority from public law, one of partnership based on a common aim, namely the maintenance of the highest standards of public administration”.32 there is a contractual duty of candour imposed on all providers of services to nhs patients in the uk to give them all necessary support and relevant information in the event of a reportable patient safety incident, which could have or did result in moderate or severe harm or death. the fact that the duty exists where harm “could” have been caused would suggest that once clinicians become aware their unit is delivering sub-standard care, they are under a professional, and probably legal, obligation to inform bem patients individually. such patients would need to be told their care will be comparable to that of an english patient if they go to a different nhs trust which serves all communities equally. in individual cases, any sub-standard care with adverse consequences would be actionable, under the tort of negligence. of course, such racist attitudes should have been dealt with by the trust’s management as it contravenes the first “right” under the nhs constitution: the nhs provides a comprehensive service, available to all irrespective of gender, race, disability, age, sexual orientation, religion, belief, gender reassignment, pregnancy and maternity or marital or civil partnership status. the service is designed to improve, prevent, diagnose and treat both physical and mental health problems with equal regard. it has a duty to each and every individual that it serves and must respect their human rights. at the same time, it has a wider social duty to promote equality through the services it provides and to pay particular attention to groups or sections of society where improvements in health and life expectancy are not keeping pace with the rest of the population (italics added for emphasis).33 the abuse experienced by elderly patients at stafford hospital led to a public inquiry and successful claims against mid staffordshire nhs foundation trust based on wilful negligence and contravention of articles 2, 3 and 8 of the human rights act (1998). nevertheless, it is more likely individuals who have experienced poor care and suffered damage will continue to seek compensation through the 32 [1986] 2 all er 941. 33 department of health, the nhs constitution – the nhs belongs to us all (williams lea 2015) 2. the denning law journal 59 traditional route of medical negligence claims. however, judicial review has a clear role to play in deciding whether a public body has made its decisions in an arbitrary or thoughtless way. the traditional purpose of judicial review has been to examine the legality of decisions made by government or by its agents. a victory by a claimant can have various outcomes, but in relation to discrimination an nhs trust could be required to change its policies so as to eliminate inequitable care. how to deal with poor care for individuals from the bem population poor care for patients from the bem population is both a breach of duty of care and of professional duty. the general medical council’s (gmc) equivalent of a core duty in good medical practice at domain 4 s59 states: you must not unfairly discriminate against patients or colleagues by allowing your personal views to affect your professional relationships or the treatment you provide or arrange. you should challenge colleagues if their behaviour does not comply with this guidance.34 the guidance clarifies that it includes: “your views about a patient’s or colleagues lifestyle, culture or their social or economic status, as well as the characteristics protected by legislation”.35 the gmc enlarges on the consequences of a doctor’s personal beliefs and attitudes and states he or she must not: “treat patients unfairly, … deny patients access to appropriate medical treatment or services, …. not cause patients distress”.36 although this latter guidance largely relates to situations where doctors have a conscientious objection to providing certain procedures, such as termination of pregnancy and male circumcision, it is also directly relevant to work in a trust which underserves members of the bem community. failure to inform patients that a trust has been underserving the bem could form grounds for referral to a fitness to practice committee. if the complaint 34 general medical council, good medical practice <gmc-uk.org/ethical-guidance/ et h ica l-g u id a nce -fordoctors/good-me d ica l-pract ice/doma i n4 -ma i nt a i n i ngtrust#paragraph-59> accessed 7 may 2020. 35 ibid. 36 general medical council, personal beliefs and medical practice 4 <gmc-uk.org/ ethical-guidance/ethical-guidance-for-doctors/personal-beliefs-and-medical-practice/ personal-beliefs-and-medical-practice> accessed 7 may 2020. 60 what are the legal mechanisms for seeking solutions to disparities in the delivery of care in the nhs is upheld by the medical practitioners tribunal this could lead to either suspension or permanent erasure of that doctor from the medical register.37 however, none of these actions will compensate a patient or family members for poor treatment which has caused harm. the most effective route for seeking financial redress in such a situation remains through the tort of negligence. in this case the issue of why a patient received sub-standard treatment is of limited importance, rather it is whether they received such treatment and how it compares with that provided by a competent practitioner. royal commission for investigation of bem healthcare in 1085 william the conqueror instituted the first royal commission when he sent commissioners throughout the country to collect data which would constitute the domesday book. its purpose was to record property holdings and this concept of investigating and reporting on a specific matter remains the essence of royal commissions, although they now lack the enforcement powers which william gave to his commissioners. in the uk the executive initiates commissions through powers delegated to it by the crown. starr has pointed out that most recent royal commissions have been concerned with broad policy rather than specific issues requiring timely actions.38 as a result there has been only one recent example dealing with health issues. this was the royal commission on the national health service, which commenced work in 1976 and delivered its report three years later. its terms of reference were to consider “the best use and management of financial and manpower resources of the national health service”.39 what remains unclear is “why, on some occasions, are the recommendations of advisory bodies accepted and implemented with alacrity while at other times they are side-lined, buried or wilfully ignored?”40 owens went on further to suggest that “the authority of the 37 general medical council, fitness to practice procedures <whatdotheyknow.com/ request/223973/response/564046/attach/html/3/apok%206512%20response.pdf.html> accessed 7 may 2020. 38 g starr, ‘public inquiries in the united kingdom’ in s prasser and h tracey (eds), royal commissions & public inquiries: practice & potential (connor court publishing pty ltd 2014) para 3.01. 39 a merrison, royal commission on the national health service: report (hmso 1979) 1. 40 s owens, ‘experts and the environment: the uk royal commission on environmental pollution 1970-2011’ (2012) 24 journal of environmental law 1. the denning law journal 61 advice and its interplay with interests, institutions and power” were important factors, but with time these tended to diminish. 1. royal commissions and health issues despite such apparent restrictions, the royal commission on the national health service took a wide view of its remit and considered its work must be informed by the notion that the nhs was “a service to patients”.41 almost 40 years later, observations made in the report continue to be relevant and this emphasises the potential long-term value of royal commissions. for example, it took the view that it should: “have some comments on the way nhs priorities are determined. first, we believe it is important that the lay public should be involved in the process”.42 however, the bem community were viewed as contributing to the difficulties of the nhs rather than being a group who were underserved. these views were reflected in the following extracts: 7.53 some of these symptoms are due to economic decline and the accompanying poverty and social problems, but others may arise from the high cost of accommodation or the special demands of an aged, migrant or homeless population.43 7.61 the special needs of patients who come from ethnic minorities require sensitive handling by the nhs. the evidence we took from their representatives suggests that many nhs workers are not aware of cultural, language, literacy and dietary problems which may affect these groups.44 although the issues of the bem community only figured in a relatively small way in this report, during recent years they have come more to the fore. the question, however, is whether they would be considered sufficiently broad and of such importance as to warrant a royal commission investigating the issue over a period of years and at considerable expense. the royal commission on the nhs was initiated under a labour government, but its report was published when margaret thatcher was prime minister and most of its recommendations were not implemented. this underlines the major weakness of commissions which is that their recommendations lack legal force. 41 ibid para 1.1. 42 ibid para 6.7. 43 ibid para 7.53. 44 ibid para 7.61. 62 what are the legal mechanisms for seeking solutions to disparities in the delivery of care in the nhs however, recently saatchi (2017) has suggested that there is a growing appetite for the appointment of a royal commission to sort out the current problems of the nhs: as a constitutional mechanism, a royal commission is uniquely placed to draw attention to some of the enormous, long-term challenges that many members of the public, and westminster, are not fully aware of. a commission’s investigatory powers, and capacity to provide evidenced-based review free from the constraints of the immediate political cycle, allow it to craft solutions that command the support of practitioners and politicians alike. when set up properly, its recommendations carry a unique legitimacy that could be essential to securing a lasting, bipartisan settlement on the nhs.45 within the issues saatchi considered most pressing was that of underserved bem communities within the uk. if he is correct that there is a bipartisan wish within parliament to see a royal commission to deal with these issues then it could become a reality. 2. mechanisms for a royal commission royal commissions are created by a formal order in council and confirmed with the great seal.46 subsequently an advertisement is placed by the privy council in the gazette which can: “specify the leader of the commission to be appointed, or an invitation to submit evidence to the inquiry or other matters pertaining to royal commissions”.47 its membership will generally be selected incrementally and eclectically from amongst experts and lay people.48 clearly the composition of any royal commission concerned with discrimination in the delivery of health care would be critical and need to represent those whom the nhs is meant to serve. royal commissions lack statutory power to compel witnesses to attend and for documents to be disclosed, but their strength lies in the formality of the 45 m saatchi, an nhs royal commission. from fighting fires to lasting settlements (centre for policy studies 2017) 14. 46 tj lockwood, ‘a history of royal commissions’ (1967) 5 osgoode hall law journal 172. 47 ‘appointment of royal commissions (1112)’ <www.thegazette.co.uk/all-notices/ content/121> accessed 7 may 2015. 48 pa thomas, ‘royal commissions’ (1982) 3 statute law review 40. the denning law journal 63 proceedings and the prestige of being conducted under a royal warrant.49 although the median time to produce a report is between two and four years, at least a dozen commissions have done so more rapidly,50 although time would not be a factor in this case. 3. public inquiries and bem healthcare howe (1999) described the purpose of inquiries as being to provide “a full and fair account of what happened especially in circumstances where the facts are disputed, or the course and causation of events is not clear”.51 this is directly relevant to discrimination in delivery of care to bem communities which trusts and individual doctors dispute and its cause is unclear. a more cynical interpretation of their role has been put forward by habermas who considers their purpose is to re-establish and justify state authority, and thus to maintain ‘the requisite level of mass loyalty’52 in similar vein, brown believes such “public discourse depoliticizes disaster events, legitimates social institutions, and lessens anxieties by concocting myths that emphasize our omnipotence and capacity to control”.53 in 2005 the inquiries act established statutory inquiries and in 2006 the inquiry rules were published. non-statutory inquiries continue, however, and are still used by a variety of organisations including the nhs. the choice as to which of these two forms an inquiry will take often appears quite arbitrary. statutory public inquiries the inquiries act 2005 enables a minister to create an inquiry: 1 (1) ….. where it appears to him that (a) particular events have caused, or are capable of causing, public concern 49 aw bradley and kd ewing, constitutional and administrative law (13th edn, longman 2003) 305; js caird, ‘public inquiries: non-statutory commissions of inquiry’ (2016) 02599 house of commons library briefing paper 20. 50 p barlow, ‘the lost world of royal commissions’ (2013) <instituteforgovernment.org. uk/blog/lost-world-royal-commissions> accessed 7 may 2020. 51 g howe, ‘the management of public inquiries’ (2002) 70 the political quarterly 295. 52 j habermas, legitimation crisis (beacon press 1973) 46. 53 a brown, ‘authoritative sensemaking in a public inquiry report’ (2003) 25 organization studies 952. 64 what are the legal mechanisms for seeking solutions to disparities in the delivery of care in the nhs the chairman, its membership and final terms of reference are determined by the minister. he must inform parliament of his actions, but does not require its permission or approval. therefore, such inquiries are under the control of the executive. hence their role in investigation of discrimination in the delivery of care by the nhs might be undermined. however, there is some hope. in 2018, an independent public statutory inquiry into the use of infected blood was set up. its terms of reference are: to examine the circumstances in which men, women and children treated by national health services in the united kingdom (collectively, the “nhs”) were given infected blood and infected blood products, in particular since 1970.54 clearly the role of the nhs will be investigated, but it must be remembered it has taken almost 50 years to arrive at this point, and this included the non-statutory archer inquiry in 2009.55 this inquiry was funded privately by individuals, the southern building company and the professional footballers association.56 its fate is a salutary lesson as it went offline and became difficult to access. as whyte (2010) has pointed out even a statutory inquiry “is a legally sanctioned forum that has no power of legal sanction”.57 1. statutory inquiries and health issues however, statutory inquiries can limit the information which they publish under s 25 when there is: (5) (b) any risk of harm or damage that could be avoided or reduced by withholding any material; (c) any conditions as to confidentiality subject to which a person acquired information that he has given to the inquiry. (6) in subsection (5)(b) “harm or damage” includes in particular— (a) death or injury58 54 <infectedbloodinquiry.org.uk/sites/default/files/terms-of-reference-infected-bloodinquiry.pdf> accessed 7 may 2020. 55 independent public inquiry: contaminated blood & blood products <archercbbp.com/ public> accessed 7 may 2020. 56 archer report 2009 <factor8scandal.uk/archer-report-2009> accessed 7 may 2020. 57 d whyte, ‘don’t mention the motive for war’ (2010) 82 criminal justice matters 8. 58 the inquiries act 2005. the denning law journal 65 all medical information is confidential and many patients would feel that they had suffered further harm on discovering that they had received less appropriate care than other uk citizens. a further major limitation of statutory inquiries is that: “2 (1) an inquiry panel is not to rule on, and has no power to determine, any person’s civil or criminal liability”.59 this has significant implications for recipients of infected blood and would have similar consequences for any inquiry into discrimination in delivery of healthcare. under s 19 of the act restrictions can be imposed by a minister on disclosure or publication of evidence provided to the inquiry as well as limiting public attendance. public acknowledgement of discrimination in delivery of care might be seen by the executive as a matter which would not allay public concerns and so lead to suppression of any relevant evidence or its publication. for such reasons, many judges, such as saville l, would decline to chair inquiries held under the act.60 to some degree this may explain the limited number of inquiries held under the act and the continuing popularity of non-statutory inquiries. in addition, elliott has drawn attention to the belief that when a judge does chair an inquiry into matters of public concern there will be greater accountability and clearer evidence of independence from the executive.61 clearly, when a minister controls the processes of an inquiry these beliefs would be seriously undermined. other statutory inquiries related to health have included the cdiff inquiry, the vale of leven inquiry, the penrose inquiry on infected blood in scotland and the mid staffordshire nhs foundation trust inquiry.62 the cdiff inquiry was chaired by the chief medical officer for wales and its three other members were all from medical backgrounds. it was concerned with an outbreak of clostridium difficile induced diarrhoea in hospitals in northern ireland and was linked to 31 deaths. the report is no longer readily available. in contrast the vale of leven inquiry which was chaired by a retired judge, maclean l, is still available. it too concerned the death of 34 patients from clostridium difficile and was set up by the scottish government in response to public pressure. the same is also true for the penrose inquiry into hepatitis c/hiv infection acquired from infected blood supplies in scotland, where the chairman was a scottish court of session judge. 59 the inquiries act 2005. 60 beer (n 27) 25. 61 m ellliott, ‘should judges lead public inquiries?’ (2014) <publiclawforeveryone. com/2014/07/10/should-judges-lead-public-inquiries> accessed 7 may 2020. 62 g cowie and m sandford, ‘statutory commissions of inquiry: the inquiries act 2005’ (2018) sn06410 house of commons library briefing paper 32. 66 what are the legal mechanisms for seeking solutions to disparities in the delivery of care in the nhs 2. statutory inquiries and public pressure in the case of the vale of leven inquiry pressure came from families of those who had died in the clostridium difficile outbreaks, as well as senior members of the medical profession for a public statutory inquiry. however, the turning point was an exchange between nicola sturgeon, who was cabinet secretary for health and wellbeing, whilst standing in for the first minister, and iain gray at first minister’s question time: the families of those who died want a public inquiry now. britain’s leading epidemiologist wants a public inquiry now. this parliament voted for a public inquiry in september. ms sturgeon has admitted today that there is no reason why that cannot happen. she herself is the only obstacle. how many people need to tell her that she is wrong before she calls a public inquiry?63 although the report was robust in its criticisms, interested parties still accused it of being an example of the nhs investigating itself.64 nevertheless, it specifically stated: “scottish ministers bear ultimate responsibility for nhs scotland and even at the level of the scottish government the systems were simply not adequate.”65 3. statutory inquiries and politics in 2004 sir robert francis, a barrister with significant experience of chairing inquiries, submitted a memorandum to the public administration select committee which was deliberating on the inquiries act, in which he suggested that the benefits of public inquiries “must be weighed against the burdens that inquiries of any public nature place on those who are party to them, and the public in general”.66 amongst the burdens he identified were the anguish of victims, the workload placed on public bodies and the impact on staff under investigation, as well as cost. he went on to chair a non-statutory inquiry into the mid staffordshire foundation trust and was subsequently appointed by the labour government to chair a 63 first minister’s question time meeting of the parliament 20 november 2008, session 3, col 2168. 64 s carrell, ‘inquiry blames hospital for cdiff deaths’ <theguardian.com/society/2008/ aug/08/mrsa.nhs> accessed 7 may 2020. 65 l maclean, the vale of leven hospital inquiry report (aps group 2014) 412. 66 r francis, ‘memorandum by robert francis qc’ (gbi 06) in house of commons public administration select committee, government inquiry. written evidence (the stationery office ltd 2004). the denning law journal 67 more wide-ranging non-statutory inquiry into what had gone wrong at the trust. however, andrew lansley, as secretary of state for health in the coalition government, decided it should be a statutory public inquiry. he gave as his reasons: this was a failure of the trust first and foremost, but it was also a national failure of the regulatory and supervisory system, which should have secured the quality and safety of patient care. why did it have to take a determined group of families to expose those failings and campaign tirelessly for answers?67 however, the decision was probably political. indeed there is considerable evidence to suggest that public inquiries usually have political motives behind them, whether in response to growing public clamour or, as was suggested by marr about the scott inquiry set up by john major: “the administration was so lacking in authority that it was protecting itself, for the time being, with the borrowed authority of lord justice scott. the tougher the judge, the stronger the shield.”68 significant support for such a view comes from the experimental work of sulitzeanu-kenan on a web-based study of 474 uk citizens.69 apart from blame avoidance the breathing space resulting from the inquiry process allows the significance of the event to move down the public agenda and so potentially limit the need for any active interventions. against such a background black and mays have drawn attention to the formal absence of any method of assessing the impact of inquiries compared to their cost,70 in other words whether they represent “value for money”. 4. statutory inquiries and the bem community pressure groups, such as cure the nhs, tainted blood and factor 8, have been instrumental in bringing long-term pressure on governments to launch public inquiries into health issues. in the case of underserved ethnic minority groups a 67 hc deb 9 june 2010, vol 511, col 333. 68 a marr, ‘behold the backlash, sabres drawn’ the independent (8 june 1995) <independent.co.uk/voices/behold-the-backlash-sabres-drawn-1585410.html> accessed 7 may 2020. 69 r sulitzeanu-kenan, ‘if they get it right: an experimental test of effects of the appointment and reports of uk public inquiries’ (2006) 84 public administration 623. 70 n black and n mays, ‘public inquiries into health care in the uk: a sound basis for policymaking?’ (2013) 18 journal of health service research & policy 129. 68 what are the legal mechanisms for seeking solutions to disparities in the delivery of care in the nhs public inquiry will only be achieved through persistent, targeted and informed tactics. recruitment of politicians and public figures as influential supporters is central to a successful approach. the question then arises as to how likely it is that patients with disparate diseases from a range of minority communities could come together and develop such a strategy. interestingly inquiries related to health issues have usually concerned one group of patients, such as haemophiliacs, or those infected by clostridium difficile. in the case of infected blood products it affected thousands of people, whereas the two inquiries concerned with deaths from clostridium difficile involved less than 70 patients. assuming that a substantial pressure group developed amongst bem patients and the executive considered the issue of sufficient consequence to set up an inquiry what would be important aspects? clearly chairmanship of the inquiry and its membership would be critical. the chair would ideally be a judge and membership should include those with legal, cultural and epidemiology backgrounds. although choice of membership lies with the minister, it is the chairman, with advice from the inquiry solicitor and counsel, who designates core participants.71 5. statutory inquiries, the bem community and core participants core participants are defined in s 5(2) of the inquiry rules 2006 as: a. the person played, or may have played, a direct and significant role in relation to the matters to which the inquiry relates; b. the person has a significant interest in an important aspect of the matters to which the inquiry relates; or c. the person may be subject to explicit or significant criticism during the inquiry proceedings or in the report, or in any interim report. bem patients would come under s 5(2)(b), whilst (a) and (c) would include such trusts as pennine acute hospitals nhs trust, barking, havering & redbridge university hospitals nhs trust and university hospitals of leicester nhs trust. these three trusts have underserved patients from the south asian community who had inflammatory bowel disease.72 in practice, core participants are often 71 p skelton, ‘the administration of an inquiry’ in j beer, j dingemans and r lissack (eds), public inquiries (oup 2011) 156. 72 farrukh and mayberry, ‘ethnic variations in the provision of biologic therapy for crohn’s disease: a freedom of information study’ (n 11). the denning law journal 69 organisations representative of individuals rather than individuals, themselves. in the case of patients this could present an additional hurdle related to medical confidentiality and s 5(1) specifies that a person can only be designated as a core participant: “provided that person consents to being so designated”. the advantages of being a core participant have been summed up by sir brian langstaff, chair of the infected blood inquiry. the inquiry will: engage with core participants on matters of practice and procedure which they will help to shape, and indeed will expect core participants to further the working of the inquiry on an ongoing basis in ways that go beyond what it will ask of those who are not.73 such views contrast with the status of infected patients who will simply “add to the inquiry’s store of knowledge”.74 core participants will be able to: c. suggest lines of questioning (normally through their recognised legal representatives) to be pursued by counsel to the inquiry; d. apply through their recognised legal representatives to the chair to ask questions of witnesses during a hearing; e. have access to the expert groups (through the inquiry secretariat) and be able to propose experts to be added to those groups; f. be provided, prior to publication, with a copy of the report (or any interim report) which is to be published.75 langstaff is clear about the importance of the term “significant” in s 5 (2) of the inquiry rules 2006. as other chairs of statutory public inquiries, langstaff will decide who can have core participant status. such a role will inevitably help shape the proceedings and outcome of any inquiry. clearly, in any inquiry into underserving the bem community the role of individual patient claimants will be limited. at best they will add to the narrative. the suggestion that organisations such as the equality and human rights commission will be able to act as core participants and speak on their behalf is undermined by its limited involvement with healthcare and unequal treatment related to protected characteristics. one of 73 b langstaff, ‘chair’s statement of intent on care participant status’ (2018) <infectedbloodinquiry.org.uk/sites/default/files/documents/chairs-statement-of-intenton-core-participant-status-1.pdf> accessed 7 may 2020. 74 <infectedbloodinquiry.org.uk> accessed 7 may 2020. 75 b langstaff, ‘statement of approach – core participant status’ (2018) <infectedbloodinquiry.org.uk/sites/default/files/documents/statement-of-approach-coreparticipant-status-1.pdf> accessed 7 may 2020. 70 what are the legal mechanisms for seeking solutions to disparities in the delivery of care in the nhs the only examples of its involvement is related to hospitalised deaf patients.76 other potential core participants might include monitor (now nhs improvement), the care quality commission, local clinical commissioning groups and health and well-being boards as well as relevant trusts. the track record of these organisations as far as bem communities being underserved is non-existent. monitor’s role was defined in the health and social care (community health and standards) act 2003 as: 4 (b) reducing inequalities between persons with respect to their ability to access those services, and (c) reducing inequalities between persons with respect to the outcomes achieved for them by the provision of those services. to date it has failed to publish any examples of having intervened to address inequalities in service delivery related to ethnicity. similarly the care quality commission (cqc) has failed in this area. in describing its work the cqc stated its objectives were to “help to focus providers and commissioners on the importance of their responsibilities towards equality, diversity and human rights”, and to ensure that, “an organisation provides services proportionately to different groups and their needs”.77 however, it is yet to publish any outcomes of work on the health care of patients from the bem community. health and well-being boards’ role is advisory representing local groups but lacking any enforceable powers. in contrast clinical commissioning groups are directly responsible for the purchase of appropriate care for patients in their locality and so share responsibility with nhs trusts for ensuring equitable access to services and treatment. the public sector equality duty identified in the equality act 2010 is the basis for the statement in the nhs constitution that: legal duties require nhs england and each clinical commissioning group to have regard to the need to reduce inequalities in access to health services and the outcomes achieved for patients.78 76 equality and human rights commission, section 23 agreement between the equality and human rights commission and tayside health board this agreement (2014) <https://www.nhstaysidecdn.scot.nhs.uk/nhstaysideweb/idcplg?idcservice= get_secure_file&rendition=web&revisionselectionmethod=latestreleased& nosaveas=1&ddocname=prod_226503> (accessed 4 january 2021). 77 care quality commission <cqc.org.uk/content/about-us> accessed 7 may 2020. 78 department of health, ‘guidance: the nhs constitution for england’ (2015) <gov.uk/ government/publications/the-nhs-constitution-for-england/the-nhs-constitution-forengland> accessed 7 may 2020. the denning law journal 71 such organisations are likely to be core participants. their financial weight will give them a significant advantage in presenting and defending their case compared to the charities concerned with inflammatory bowel disease. in 2016 company accounts revealed that crohn’s & colitis uk had assets of £3 million with an annual expenditure of £1 million79 and charity returns for cicra, the other self-help group, showed assets of £600,000 with an annual expenditure of £300,000.80 should a pressure group emerge from the bem community its funding will be dwarfed in comparison to nhs related organisations. nevertheless, it would be essential that patients are directly represented so they can help formulate the direction of any inquiry and have all the advantages of being core participants. 6. statutory inquiries and duties of confidentiality any organisation accused of underserving the bem community will claim the information needed to answer questions is protected by medical confidentiality.81 however, nicholas lewis v secretary of state for health (defendant) & michael redfern qc (interested party)82 found that the public interest in disclosing medical records outweighed any interest in maintaining their confidentiality. a further significant issue when assessing differences in delivery of care would be the disclosure of records related to patients from the white community, who had received good quality of care. only through such disclosures would it be possible to demonstrate underserving of one community compared to another. 7. statutory inquiries and standard of proof to date, all academic publications on delivery of substandard care to bem communities have involved case series, cohort or community based studies. they have demonstrated general attitudes rather than drilling down to individual cases. clearly, any public inquiry into underserving of bem communities would need to define the standard of proof which it would accept. to some degree this will be influenced by the possible consequences of an inquiry finding that there has been discrimination. the 2005 act provides no guidance in this area of standard of 79 crohn’s and colitis uk <beta.companieshouse.gov.uk/company/05973370/filinghistory> accessed 7 may 2020. 80 cicra <cicra.org/media/1336/annual-report-2018.pdf> accessed 7 may 2020. 81 j beer, ‘evidence and procedure’ in j beer, j dingemans and p lissack, public inquiries (oup 2011) 193. 82 [2008] ewhc 2196 (qb). 72 what are the legal mechanisms for seeking solutions to disparities in the delivery of care in the nhs proof.83 however, it needs consideration. for example, could such a finding be used as the basis for payment of compensation to individuals and families? in the bloody sunday inquiry saville l ducked the question, stating: “it seems to us that we can and should reach conclusions without being bound by rules designed for court cases, such as who has the burden of proof and the strict rules of evidence.”84 the situation may be easier in an inquiry into underserving of bem communities as this would be a civil issue and “balance of probabilities” would be the standard. 8. statutory inquiries and the consequences of confirmation of underserving bem communities a statutory public inquiry can only make recommendations when required to do so by its terms of reference.85 however, even then there is no requirement that parliament takes any action on them.86 from a patient’s perspective a statutory public inquiry could be disappointing – an expensive and prolonged investigation with results which they already knew leading to no change. in 2002 walshe and higgins reviewed the impact of all forms of inquiry on the nhs and concluded that: the consistency with which inquiries highlight similar causes suggests that their recommendations are either misdirected or not properly implemented. certainly there are few formal mechanisms for following up the findings and recommendations of inquiries. however, many of the problems identified by inquiries are cultural and demand changes in attitudes, values, beliefs, and behaviours—which are difficult to prescribe in any set of recommendations.87 there are no indications that the situation has improved and the need for changes in attitude remains a major stumbling block to reform. in the case of inflammatory bowel disease, publication of evidence of underserving of bem 83 j aiken, ‘inquiry reports and the duty to be fair’ in j beer, j dingemans and r lissack, public inquiries (oup 2011) 370. 84 l saville, ‘standard of proof ruling’ (2004) para 18 <webarchive.nationalarchives.gov. uk/20101103103956/http://www.bloody-sunday-inquiry.org/rulings/tribunal/archive/ proof.pdf> accessed 7 may 2020. 85 s 24(1)(a) inquiries act 2005. 86 beer (n 27) 25. 87 k walshe and j higgins, ‘the use and impact of inquiries in the nhs’ (2002) 325 british medical journal 895. the denning law journal 73 communities has achieved nothing. for example, when asked through a freedom of information request what had been done, university hospitals of leicester nhs trust replied complacently: there is no intent within the trust for there to be inequitable access by the south asian community and other community groups to treatment with biologics. indeed, the service considers that as the population of leicester has a white english minority with a very large south asian presence, it would be both difficult and unlikely for there not to be equitable access to biologic therapy.88 in 2004 sir ian kennedy, who chaired the bristol royal infirmary inquiry, confirmed that once its report is delivered an inquiry “ceased to have any standing”.89 as a result there was no mechanism for formal review of whether recommendations had been implemented, a suggestion, which the executive, failed to incorporate into the inquiries act 2005. however, rough90 has pointed out that the more individuals who take part in the debate which surrounds an inquiry, the more difficult it becomes for the relevant industries, in this case the nhs, to insulate themselves from scrutiny. non-statutory inquiries the decision whether an inquiry should be statutory or non-statutory is made after advice from the cabinet office propriety and ethics team. in recent times non-statutory inquiries are held when matters of intelligence need to be considered in camera.91 their relevance, therefore, to underserved bem communities may be questioned. however, prior to the inquiries act 2005 they were a popular method of reviewing problems within the nhs.92 they continue to be used with a recent example being the investigation into the maternity and neonatal services at university hospitals of morecambe bay nhs foundation trust.93 the rationale 88 university hospitals of leicester nhs trust, freedom of information request gb/ foi/30912. 89 i kennedy, ‘government by inquiry’ (2004) question 654 <publications.parliament. uk/pa/cm200405/cmselect/cmpubadm/uc51-i/uc5102.htm> accessed 7 may 2020. 90 e rough, ‘policy learning through public inquiries? the case of uk nuclear energy policy 1955 – 61’ (2011) 29 environment and planning c: government and policy 24. 91 caird (n 49) 6. 92 walshe and higgins (n 87) 895. 93 b kirkup, morecombe bay investigation (stationery office 2015) 1. 74 what are the legal mechanisms for seeking solutions to disparities in the delivery of care in the nhs for the choice of a non-statutory inquiry is unclear, but it followed on from a failure by the cqc to identify and publish concerns about practices at the hospital. an earlier investigation by grant thornton had concluded: on the evidence examined it seems that an attempt to cover-up matters concerning cqc’s regulation of uhmb may have taken place. the first improper action was the instruction to delete an important, internal report, which more likely than not, did occur.94 the issues at morecombe bay continued and one year after publication of his report, kirkup was unhappy with the lack of progress.95 this is not surprising as a review by national audit found that only 45 per cent of recommendations made by inquiries were adopted by the executive.96 clearly, should an inquiry ever happen into underserving of the bem community by the nhs it would need to be a statutory one with none of it in camera. even then based on previous inquiries, on the balance of probabilities, it is unlikely to have any long-term impact on delivery of care to this community. 1. judicial review and healthcare for bem communities public law challenges to decisions within the nhs have been uncommon and often unsuccessful.97 one reason is the successful role of private law in the field of medical negligence, especially for after-the-event issues. however, public lawyers have contended that the courts have the capacity to play a more active role in ‘refining the decision-making process, and consequently reducing any sense of unfairness and ultimately recourse to litigation’.98 during the second half of the 20th century there has been a reorientation of judicial review away from the 94 grant thornton, ‘the care quality commission re: project ambrose’ (2013) <cqc.org. uk/sites/default/files/media/documents/grant_thornton_uk_llp_morecambe_bay.pdf> accessed 13 january 2019. (this document can no longer be accessed but is referred to in many publications). 95 s lintern, ‘kirkup: lack of progress since morecambe bay inquiry risks “disaster” ’ (2016) health services journal. <https://www.hsj.co.uk/quality-and-performance/kirkuplack-of-progress-since-morecambe-bay-inquiry-risks-disaster/7002897.article> accessed 4 january 2021. 96 national audit office, ‘investigation into government-funded inquiries’ (hc 836, 2017). 97 p bibby, effective use of judicial review (tolley publishing company 1995) 98. 98 r james and d longley, ‘judicial review and tragic choices: ex parte b’ (1995) 367 public law 373; a parkin, ‘allocating health care resources in an imperfect world’ (1985) 58 modern law review 867. the denning law journal 75 mediatory issues that had been the primary focus of the debate throughout the period leading up to the 1960s, towards a new and entirely ‘public’ task, namely, that of enforcing public duties.99 pressure groups, representative bodies and statutory organisations have liberal access to the courts for purposes of bringing proceedings in their own names or intervening as third parties in ongoing disputes.100 indeed, during the last five years a number of claimants have sought judicial review against the nhs as a whole or against delegated bodies. this is not surprising considering laws lj’s judgment in international transport roth gmbh v home secretary where individual rights were unqualified and the decisions taken had been made by unelected officials.101 this can give rise to controversy when judicial decision-making fringes upon matters of policy;102 the courts have noted that there can be merit in constraining decision makers even in those cases where no individual has been directly affected by a decision.103 judicial reviews and the nhs topics have ranged from national contracts to individual concerns about current and future delivery of care. at times, the simple threat of action has resolved the problem. for example, in early 2018 the equality and human rights commission threatened action against 13 clinical commissioning groups (ccgs) because of their continuing care policies on the basis that they were unlawful and breached the human rights of patients. the commission’s concerns related to arbitrary caps on funding and failure to consider specific needs of individual patients. however, no action was taken as the ccgs convinced the commission that they were revising their policies.104 in contrast, a number of pharmaceutical companies have 99 tt arvind and l stirton, ‘the curious origins of judicial review’ (2017) 133 law quarterly review 91. 100 axa general insurance ltd v lord advocate [2011] uksc 46, [2012] 1 ac 868; re e (a child) [2008] ukhl 66, [2009] 1 ac 536; for example, m kirby, ‘deconstructing the law’s hostility to public interest litigation’ (2011) 127 law quarterly review 537. 101 [2003] qb 728, 765ff. 102 c harlow, ‘public law and popular justice’ (2002) 65 modern law review 1. 103 r v secretary of state for foreign and commonwealth affairs, ex p world development movement ltd [1995] 1 wlr 386, 395 (rose lj); r v somerset cc, ex p dixon [1998] envlr 111, 121 (sedley j); g anthony, ‘public interest and the three dimensions of judicial review’ (2013) 64 northern ireland legal quarterly 125. 104 equality and human rights commission, ‘nhs u-turns on discriminatory policies’ (2018) <equalityhumanrights.com/en/our-work/news/nhs-u-turns-discriminatory-policies> accessed 7 may 2020. 76 what are the legal mechanisms for seeking solutions to disparities in the delivery of care in the nhs sought judicial review when policies constrained use of their drugs, in particular when there was an expressed preference for the products of a rival company. in 2018 mrs justice whipple dismissed such an application in bayer plc and novartis pharmaceuticals uk ltd against various clinical commissioning groups105 for their policies on which drugs should be used to treat age-related macular degeneration. there would appear to have been no cases where judicial review has been sought in relation to delivery of care by nhs trusts. the nhs’s legal arm, nhs resolution, reported only four cases where it acted as defendant, none of which concerned clinical care or involved nhs hospitals.106 against this background it is important to consider whether discrimination experienced by bem patients in the form of substandard clinical care might be dealt with through judicial review. policies and decision making in the nhs in 1995 bibby discussed how decisions were made within the nhs.107 although policies were often published this was not always the case. there have been no suggestions of any written policies within certain nhs trusts which would limit the number of south asian patients receiving expensive biologic treatment or for any other form of discrimination against members of bem communities. however, as bibby suggested, there are occasions where the “existence of the policy is revealed only by analysis of the treatments actually given”.108 it was by such mechanisms that the under-treatment of inflammatory bowel disease amongst south asian patients was first identified.109 the “policy” may simply reflect the fact that some clinicians show significant racial bias, believing bem patients are less likely to adhere to treatment and take personal responsibility for management of their disease.110 it seems likely such attitudes may play a role in the underserving of patients with inflammatory bowel as they were seen less frequently by consultants, their management being left in the hands of junior doctors.111 105 [2018] ewhc 2465 (admin). 106 nhs resolution (2019) <resolution.nhs.uk/pca-judgements> accessed 7 may 2020. 107 bibby (n 97) 98. 108 bibby (n 97) 98. 109 farrukh and mayberry, ‘patients with ulcerative colitis from diverse populations: the leicester experience’ (n 12); farrukh and mayberry, ‘ethnic variations in the provision of biologic therapy for crohn’s disease: a freedom of information study’ (n 11). 110 nn khosla and others, ‘a comparison of clinicians’ racial biases in the united states and france’ (2018) 206 social science & medicine 31. 111 farrukh and mayberry, ‘patients with ulcerative colitis from diverse populations: the leicester experience’ (n 12). the denning law journal 77 criteria for a judicial review and against whom would it be sought 54.1.1 of civil procedure rules 1998 identifies: the principal questions which arise when deciding whether it is appropriate to bring a claim by way of a claim for judicial review, are namely: (1) against which person or bodies does judicial review lie? (2) is the measure, action or omission challenged one that is amenable to judicial review? (3) on what grounds does judicial review lie? (4) who can apply for judicial review? civil procedure 54.1.2 states that such a person can seek review against “any person or body performing public duties or functions” and that a claim for judicial review includes: “54.1 (2)(a)(ii) a decision, action or failure to act in relation to the exercise of a public function”. the nhs constitution sets out patients’ rights and pledged the nhs to achieving them. the first principle was that the nhs should provide “a comprehensive service available to all”.112 at the time the lord chancellor recognised that: many of the entitlements under the nhs and the duties incumbent on public authorities are legally enforceable through the mechanism of judicial review of executive action of strategic health authorities and primary care trusts in england.113 however, many of the rights in the constitution are more accurately considered as summations of multiple legal obligations arising from a range of sources. one 112 department of health, ‘guidance: the nhs constitution’ (n 78). 113 lord chancellor and secretary of state for justice, rights and responsibilities: developing our constitutional framework (ministry of justice, the stationery office 2009) 44. 78 what are the legal mechanisms for seeking solutions to disparities in the delivery of care in the nhs purpose of the constitution is to empower patients and as such it has singularly failed. in the third report on its impact in 2019 it was noted that: in 2018, 19% of members of the public surveyed said that they had heard of the constitution when prompted by a written description. this is a fall of 5% from the 2015 figure of 24% and an overall fall of 3% since 2009.114 in addition, the court of appeal has recognised in coughlan115 that as demand will always outstrip resources the nhs may never provide a comprehensive service, but rather the secretary of state and nhs england have a duty to promote such a service. indeed, s2 of the health act 2009 only imposes a duty on nhs bodies to have regard to the nhs constitution. in r (tracy) v cambridge university hospitals nhs trust116 lord dyson mr underlined that having regard to the constitution only required that commending a joint statement was sufficient. in the context of inequitable care for members of the bem community it could, therefore, be argued that a commitment by an nhs trust to equality as a target would be sufficient. in fact, green j in r (justice for health) ltd v secretary of state for health117 has described the duty to have regard to the nhs constitution as a “target duty”. however, green j in national aids trust v nhs england118 cited the constitution as a “reinforcing factor” in reaching his conclusion that nhs england had misdirected itself in law. such a use of the nhs constitution has been made in other cases.119 its use, therefore, in the context of purposive constructions of nhs bodies’ statutory and public law duties appears to be increasing.120 in the case of underserved patients from bem communities judicial review would be sought against those trusts where this was happening and against clinical commissioning groups who dealt with them. clinical commissioning 114 department of health and social care, third report on the effect of the nhs constitution (2019) 6 <assets.publishing.service.gov.uk/government/uploads/system/ uploads/attachment_data/file/770525/statutory_report_on_nhs_constitution_january_ for_2019.pdf> accessed 8 may 2020. 115 r v north and east devon health authority, ex p coughlan [2001] qb 213, [2000] 2 wlr 622, [2000] 3 all er 850, 51 bmlr 1, [1999] lloyd’s rep med 306, 97 lgr 703. 116 [2014] ewca civ 822. 117 [2016] ewhc 2338 (admin). 118 [2016] ewhc 2005 (admin). 119 r (rose) v thanet ccg [2014] ewhc 1182 (admin). 120 h gibbs, ‘the purpose and effect of the nhs constitution’ (2017) <landmarkchambers. co.uk/resources/guide-to-the-law-of-the-nhs/> accessed 8 may 2020. the denning law journal 79 groups have replaced primary care trusts as the bodies through which local health needs are met. clearly, it would be inappropriate to take action directly against the nhs as a whole as many trusts provide an appropriate level of service.121 indeed in the case of inflammatory bowel disease six of the ten trusts included in the study provided adequate care. trusts are required to collect data on ethnicity, admissions and procedures. this information is overseen by nhs digital.122 although freedom of information (foi) requests are powerful tools for obtaining access to these data, responses are at the discretion of the local officer dealing with them and some claim that they do not collect such data as happened with bradford.123 in addition, bourke et al. have shown that foi officers are more inclined to help applicants they know and consider friendly.124 it is unlikely that a patient or group concerned with underserving of the bem community would fall into such a category. is the omission challenged amenable to judicial review? english public law allows courts to control failures in the performance of public duties. s2 and s14 of the human rights act 1998, which embody the right to life and not to experience discrimination, can form the basis for seeking judicial review (cpr 54.1.9). in addition s6 specifies that it is unlawful for a public body to act in a way incompatible with a convention right. the human rights in healthcare programme of the nhs recognised the impact of the act in 2011 when it published guidance notes which included the statement: “policies and the practice of care should be non-discriminatory and pay particular attention to ensuring that standards are equally high for all individuals concerned.”125 it is of concern that the program was suspended in january 2013 because of lack of funding! some nine years later its webpage states: “the programme is on hold (january 2013) until continuation funding is found.”126 there is no indication that this will happen and the program be revived. 121 farrukh and mayberry, ‘ethnic variations in the provision of biologic therapy for crohn’s disease: a freedom of information study’ (n 11). 122 <digital.nhs.uk/data-and-information> accessed 7 may 2020. 123 farrukh and mayberry, ‘ethnic variations in the provision of biologic therapy for crohn’s disease: a freedom of information study’ (n 11). 124 g bourke, b worthy and r hazell, making freedom of information requests. a guide for academic researchers (university college, london, the constitution unit 2012) 7. 125 <humanrightsinhealthcare.nhs.uk/library/az/human_rights_survey_hospital_ patients_guidance_notes.pdf> accessed 17 january 2019. (site not secure on 7 may 2020). 126 <.humanrightsinhealthcare.nhs.uk/about-us/default.aspx> accessed 7 may 2020. 80 what are the legal mechanisms for seeking solutions to disparities in the delivery of care in the nhs are there grounds for judicial review? the european convention on human rights does not specifically refer to health issues. however, there have been cases which confirm that they can be considered. for example, in turkey v cyprus the court reviewed access to health care but held that “no violation of article 2 of the convention has been established by reason of an alleged practice of denying access to medical services to greek cypriots and maronites living in northern cyprus”.127 in considering how turkey dealt with its own nationals in șentűrk & șentűrk v turkey the court: reiterates that the first sentence of article 2 § 1 enjoins the state not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. these principles apply also to the area of public health …. it cannot be excluded that the acts and omissions of the authorities in the context of public-health policies may, in certain circumstances, engage their responsibility under the substantive limb of article 2.128 the court has begun to recognise the right of access to healthcare and that it should be of a certain quality. following on from atiman v turkey the court made it clear that article 2 was not restricted to cases where there had been a death but also “where the alleged victim had not died as a result of the impugned conduct”.129 such cases are a significant movement towards “more substantive justiciable protection” for underserved patients.130 clearly the underserving of bem patients would be an omission that could be brought forward for judicial review. in contrast to the care concerning greek cypriots and maronites in northern cyprus the evidence for reduced access to healthcare is robust. the equality act 2010 and the public sector equality duty (psed) make it incumbent on the nhs to deliver equal care to all sectors of british society and this has been recognised in the advice it gives: ‘members of the public could seek judicial review of a breach of the psed by either the health body or the third party.’131 127 turkey v. cyprus app no 25781/94 (ecthr, 2001) para 221. 128 mehmet șentűrk & bekir șentűrk v. turkey app no 13423/09 (ecthr, 2013). 129 atiman v. turkey app no 62279/09 (ecthr, 2014). 130 l graham, ‘the european court of human rights and the emerging right to health’ (2017) oxford human rights hub <ohrh.law.ox.ac.uk/the-european-court-of-humanrights-and-the-emerging-right-to-health> accessed 7 may 2020. 131 nhs centre for equality and human rights, the public sector equality duty and third party service providers (2012) <wales.nhs.uk/equality> accessed 7 november 2018. (no longer available). the denning law journal 81 who could apply for judicial review of reduced access to healthcare? any person or legal person applying for judicial review of underserving of south asian patients will need to demonstrate that they have standing. section 31 (3) of the senior courts act 1981 states that “the applicant has a sufficient interest in the matter to which the application relates”. cpr 54.1.11 recognises that if a claimant has a direct personal interest in the outcome of a claim this would be sufficient. in recent years a liberal attitude has been taken towards public interest groups representing communities or issues. essentially the court makes its assessment through a two-stage process: 1. at the permission stage the claimant must show he has sufficient interest. 2. at the substantive hearing claimants must demonstrate they have “sufficient interest to maintain their claim for a particular remedy”. (cpr 54.1.11) interestingly, the applicant need not personally have experienced adverse consequences of a government body decision, but simply be at ‘risk of being directly affected’.132 however, with under-delivery of care to a whole community it might be argued that if the applicant had himself received poor care this was a matter for private law and so outside the scope of judicial review. in recent cases when this distinction was unclear, the trend has been to commence proceedings.133 patients from the bem community could base their application on a trust’s failure to fulfil a legitimate expectation. their treatment had been simply unfair. in r v devon county council ex p baker brown l stated: the claimant’s right will only be found established when there is a clear and unambiguous representation upon which it was reasonable for him to rely. then the administrator or other public body will be held bound in fairness by the representation made unless only its promise or undertaking as to how its power would be exercised is inconsistent with the statutory duties imposed upon it.134 equality in delivery of health care falls squarely within this definition. the discovery of discrimination in delivery of care has arisen out of academic research, but this has not excluded administrative courts giving guidance to 132 norris v ireland app no 10581/83 (ecthr, 1988). 133 h southey and others, judicial review: a practical guide (lexisnexis 2017) 214. 134 [1995] 1 all er 73. 82 what are the legal mechanisms for seeking solutions to disparities in the delivery of care in the nhs decision-makers. this was often through obiter remarks but also included granting individuals’ relief.135 during the last 20 to 30 years declarations have frequently been sought by nhs trusts to allow them to withdraw life support from patients; a declaration requiring a trust to deliver equality of care would carry equal weight and equivalent newsworthiness.136 although remedies granted to successful claimants are normally non-coercive declarations that public authorities are trusted to respect, where the bem community has been shown to be underserved it is to be hoped that the court would issue a mandatory order and require the trust to remedy its decision-making processes and comply with its statutory duties. indeed, work by platt et al. on local authorities has shown that “increases in challenge appear to be connected to improvements in quality scores, and are not simply the consequence of lawyers making work for themselves. the findings provide a quantitative basis for arguing that judicial review challenges may contribute to improvements in local government services and therefore that the effect of judicial review is neither insignificant nor wholly negative”.137 potential limitations of judicial review in responding to underserving of the bem community there are several issues which limit the potential role of judicial review in this area. according to cpr 1998 r54.5 a claim form must be filed “not later than 3 months after the grounds to make the claim first arose”. however, those grounds might not be recognised for a considerable time and then only through a freedom of information request. such a request should be dealt within 20 working days, although the information commissioner can allow extensions of up to 40 days.138 135 southey and others (n 133). 136 d sokol, ‘aintree university hospital nhs foundation trust v james: best interests and futility under the judicial microscope’ (2013) journal of medical ethics <blogs.bmj. com/medical-ethics/2013/11/14/aintree-university-hospital-nhs-foundation-trust-v-jamesbest-interests-and-futility-under-the-judicial-microscope> accessed 7 may 2020. 137 l platt, m sunkin and k calvo, ‘judicial review litigation as an incentive to change in local authority public services in england and wales’ (2009) iser working paper series, no 2009-05, 16 <https://www.iser.essex.ac.uk/files/iser_working_papers/2009-05.pdf> accessed 7 may 2020. 138 ico, time limits for compliance under the freedom of information act (section 10) <ico.org.uk/media/for-organisations/documents/1165/time-for-compliance-foia-guidance. pdf> accessed 7 may 2020. the denning law journal 83 for an individual patient who has received substandard care which caused him injury the case would come under private law and compensation would need to be sought under the tort of negligence. even though costs can be limited through a protective cost order, they are likely to be a factor-limiting individuals and pressure groups taking action. possible actions by bem patients under the tort of negligence where an individual has received sub-standard care which has caused him or her harm then an action under the tort of negligence would be likely to succeed and should form the basis for advice given to a client/patient. however, for family and others who know bem patients, who have received sub-standard care, it is appropriate to consider whether there might be grounds for seeking compensation under the criteria laid out for nervous shock in alcock v chief constable of south yorkshire police.139 they are that: relatives must have a relationship of love and affection with the primary victim, have direct perception of the event with unaided senses, as well as have proximity to the event or its immediate aftermath and experienced psychological injury via a single nervous shock. the distinction between the incident at hillsborough which was sudden, fatal and public and the chronic illness of someone with inflammatory bowel disease is clear. however, close family members, in particular, will perceive the on-going events of sub-standard care and will be in close proximity to the aftermath of such poor care. nevertheless in alcock the judges defined an event as a single incident which occurred at a single moment in time, so excluding potential claims by families of chronically underserved patients. the issue as to whether there can be sufficient proximity when there is a significant gap between a breach and any consequent injury has not been adequately addressed. this would be the case where a patient experienced significant injury because of chronic under management of his disease.140 however, this view is not supported by sion v hampstead health authority141 where a father watched his son gradually deteriorate and die over 14 days due to hospital negligence. the case was struck out by staughton lj on the basis that “the report describes a process 139 [1991] ukhl 5. 140 j de bono, ‘nervous shock and delayed injury’ (2018) <ukhealthcarelawblog.co.uk/ rss-feed/91-nervous-shock-and-delayed-injury> accessed 7 may 2020. 141 (1994) ewca civ 26. 84 what are the legal mechanisms for seeking solutions to disparities in the delivery of care in the nhs continuing for some time, from first arrival at the hospital to the appreciation of medical negligence after the inquest”.142 on 13 october 2015 andy mcdonald attempted to address these issues through a private members bill, which proposed that it was not a condition of the claim’s success that the illness was induced by a shock, or that the claimant was close in time and space to the act or omission which causes the death, injury or imperilment of the immediate victim.143 however, the negligence and damages bill failed due to ending of the parliamentary session. overall, however, the courts and judicial review are increasingly retracing the reasoning processes of public bodies so as to ensure that decisions were not made in an arbitrary or thoughtless way – something which is true of inequitable delivery of care. conclusions and recommendations recently david williams, professor of public health at harvard, asked: “how is it possible that people with good intentions seeking to do their best can nonetheless, at an aggregate level, create a pattern of care that is so discriminatory?”144 he went on to say: “our answer was implicit bias. it’s also called unconscious or unthinking discrimination”.145 when such attitudes are widespread in an organisation it leads to “institutional racism” as defined by macpherson in the stephen lawrence inquiry.146 most attempts to deal with such issues have been outside of the uk, in countries such as the usa, canada, australia and new zealand and largely dealt with the problems of indigenous minorities rather than migrant communities. they have largely been concerned with education and attempting to change the ethos of hospitals or public health services. it is now more than 50 years since dr king made his plea for equality in healthcare. it was recently suggested that it may well be a further 50 years before it becomes a reality in the 142 ibid. 143 negligence and damages hc bill (2015–16) <publications.parliament.uk/pa/bills/ cbill/2015-2016/0076/15076.pdf> accessed 7 may 2020. 144 harvard institute for healthcare improvement, ‘does racism play a role in health inequities?: a conversation between donald berwick, md, and david r. williams, phd, mph’ (2018) <ihi.org/documents/openschoolcoursetranscripts/david-williams-donberwick-does-racism-play-a-role-in-health-inequities.htm> accessed 7 may 2020. 145 ibid. 146 home office, the stephen lawrence inquiry (n 19). the denning law journal 85 usa.147 the contention of this paper is that education and social programs have failed. therefore, different approaches are needed. for individuals there can be redress through the courts for negligent care, but the issue is wider affecting whole communities and so requiring a broader approach. such an approach would need to investigate both the causes of the problem, as well as its magnitude, and suggest methods by which the issue can be addressed. despite clear, published, widespread evidence that patients from bem communities are underserved, this discrimination is recognised within the nhs by very few and there has been no co-ordinated and effective program to address the issue. the fact that the human rights in healthcare programme has been suspended for more than six years, because of lack of funding, emphasises the complacency within government and the nhs. this same culture also responds to other medical scandals with a similar complacency or, perhaps, indifference. despite many recommendations from numerous inquiries across a number of medical areas the same issues regarding sub-standard care recur. the recent scandals at morecombe bay and mid-staffordshire foundation trust identified lack of staff, poor training, defective equipment and an inability to recognise that things had gone wrong as major components to the defective care provided by these trusts. in the case of morecombe bay there was also evidence of a deliberate cover-up by the care quality commission (cqc), which is the statutory body which should monitor performance. the situation with regard to discrimination in the delivery of care is no different. trusts, clinical commissioning groups and monitoring bodies, such as cqc and nhs improvement, have failed to respond to published evidence of discrimination in the delivery of care. for these organisations education has had no impact and the equality and human rights commission has seldom involved itself on behalf of patients. the only approach likely to have any impact will be a legal one with individuals and institutions identified and held responsible for their actions. the advantage of judicial review would be that individuals and institutions could be named and ordered to fulfil their statutory duties and deliver equitable care to the bem community. however, it would deal with the issues on a case-bycase basis and only with time hopefully help change the culture across the nhs. a statutory inquiry could also require the attendance of witnesses and the disclosure of documents, but would be unable to enforce its recommendations and many would be concerned that the controlling hand of the executive might lead to the effective suppression of evidence. 147 d munro, ‘the 50th anniversary of dr king’s healthcare quote’ forbes (25 march 2016). 86 what are the legal mechanisms for seeking solutions to disparities in the delivery of care in the nhs although a royal commissions lacks coercive powers, because of its nature it is prestigious. as with statutory inquiries it cannot institute legal action against offenders, but its inquiries can be wide ranging and it should be free of political control once active. unlike non-statutory inquiries its report will not be “lost” from the public arena. as saatchi has argued, it is only through the “independence and thoroughness” of a royal commission that there can be a “sustainable policy change in the nhs”148 and so reverse its institutional racism. however, on an individual basis, bem patients who have received sub-standard care need to look at more traditional routes to seek redress and that must be through actions in the tort of negligence. 148 saatchi (n 45) 29. the sanctity of the village green: preserving lord denning's pastoral vision* steve greenfield and guy osbomt "village cricket is the oldest team-sport to have survived and adapted, still just about recognisable despite rolled wickets, overarm bowling, whites, pads, and a host of complex rules, it is this sense of a continuous tradition, of ancient links, and english pastoral that tugs at the heart of so many devotees today, "1 the image of village cricket, the quintessential english game, conjures up images of peace, harmony and tranquillity. the community spirit built up over perhaps more than one hundred years is enshrined and embodied in the sporting activities that take place upon the village green, however, behind the idyllic facade may lie more serious neighbourly disputes between those who see the game of cricket as the focal point of village life and a tradition to be preserved at all costs, and those, perhaps newcomers to what may be a closed enclave, who begrudge its very existence, such a dichotomy most recently appeared at slough county court when some of the residents of jordans (a small village near beaconsfield) sought an order enforcing jordans cricket club to erect protective netting to shield their homes or to relinquish the right to play, 2 such cases have previously been considered by both the house of lords3 and the court of appeal4 and have centred upon an attempt to balance the rights of an individual to enjoy the privacy and seclusion of his or her home and the public interest in protecting the environment and by preserving our playing fields in the face of * the title owes a debt to klinck "this other eden': lord denning's pastoral vision", (1994) o.l.l.s., volume 14 no. i. t steve greenfield and guy osborn, senior lecturers, centre for the study of law, society and popular culture, university of westminster school of law. i. r. holt, sport and the british (oxford 1990). max sutton, noted in klinck at 27, defines pastoral vision as referring to ... a picture, literally an "idyll", that represents at least the possibility of a good rural life. while the vision may express individual illumination, more typically it focuses upon some state of communal experience, showing people as lovers, friends, families, and neighbours, who tend animals and the land and yet find time to celebrate what matters most to them ... ". 2. lacey & lacey v. parker & bingle, county court transcript, 12th may, 1994. 3. bolton v. stone [1951] i all e.r. 1078. 4. millerv. jackson [1977] all e.r. 338. 53 the denning law journal mounting development, and by enabling our youth to enjoy all the benefits of outdoor games such as cricket and football."5 whilst the case of lacey is of little value as a precedent it attracted much media attention and showed that the prescient approach of lord denning m.r., whilst dissenting in miller, to be both influential and at one with the public's desire to preserve a little piece of a fast disappearing england. 6 this article approaches the trilogy of cricket cases from two distinct angles. first, we examine the nature of the dispute and more precisely the conflict between the established order of the village and the "newcomer". secondly, we' analyse the application of settled legal principles to the facts and attempt to offer some conclusions as to the success of the courts in resolving a dichotomy imbued with a long cultural and social lineage. the nature of the disputes in all three cases the problems arose after land adjacent to the cricket grounds was developed for housing. in bolton, cricket had been played on the ground of cheetham cricket club since 1864 while the housing development on land, which had been previously owned by the cricket club, finished in 1910. an action was brought by a miss stone in both negligence and nuisance against the committee of the cricket club when she was struck by a cricket ball whilst standing on the highway adjacent to the ground. it was estimated at trial that over a period of some thirty years, since the development had been completed, a ball had been struck onto the highway on some six occasions. the plaintiff was hit by a straight drive which was estimated to have travelled some 100 yards to the point where miss stone was struck. the ball had pased over a 7 feet high fence which amounted to a 17 feet high barrier when the slope of the ground was taken into account. 7 in miller cricket had been played at lintz, in county durham, since 1905. in 1972 the plaintiffs bought a house in a recently built housing estate adjoining the ground where" ... four years ago was a field where cattle grazed."9 lord denning m.r. felt that it was the development itself that had caused the problem: 5. ibid p.345 per lord denning m.r. 6. judge hague found the huge media attention bewildering noting that" ... although this is a local dispute, it has nevertheless attracted a remarkable amount of attention from the national media. quite why, it is difficult to know. perhaps the subject matter touches the lives and stirs the emotions of many people. perhaps it is just an entertaining diversion from the reports of tragedy, crisis and gloom which usually fill the newspapers. perhaps it gives journalists and headline writers the opportunity to sharpen up (and mix) their cricketing and legal metaphors and puns." county court transcript, 'supra. n.2' , pp. 1-2. as will be seen throughout this piece, the judiciary are themselves not beyond such mixed metaphors and forced puns. 7. the name of the batsman is not recorded but this was an exceptionally powerful stroke. it was described in evidence by two senior members of the club as "altogether exceptional to anything previously seen on the ground". 8. miller supra. n.4 p.340 per lord denning m.r. he goes on to add that "the animals did not mind the cricket. but now this adjoining field has been turned into a housing estate." 54 the sanctity of the village green "i must say that i am surprised that the developers of the housing estate were allowed to build the houses so close to the cricket ground. no doubt they wanted to make the most of their site and put up as many houses as they could for their own profit. the planning authorities ought not to have allowed it. the houses ought to have been sited so as not to interfere with the cricket.' '9 the relationship between the club and the plaintiffs was an uneasy one; initially several balls landed in the plaintiffs' garden and damaged tiles and brickwork which led to representations being made to the club. this resulted in the erection of a chain link fence that brought the total height of the plaintiffs' fence to over 14 feet. the club also asked batsmen to try and hit balls for four rather than six so as to avoid the possibility of further damage to the plaintiffs' property. notwithstanding these precautions in the 1975 season 5 balls landed in the plaintiffs' garden, one of which narrowly avoided breaking a window of the room in which their son was sitting. accordingly the family felt unable to remain in the house whilst the cricket was taking place and consequently they sought a remedy against the cricket club based upon negligence and nuisance. in lacey the basis of the plaintiffs' claim was that the intrusion of cricket balls onto their property was dangerous and as such was an unlawful interference with their property. as long ago as 1921 the management committee of jordans village limited 10 had anticipated the land being used for recreational purposes: "[ t] he layout provides for a village green of three acres which will be laid out for sports and pastimes of various kinds." ii the cricket club had begun playing matches on this ground from the early 1920s and at the time of the case there were 49 playing members of mixed ability, most of whom who had longstanding connections with the club and the community. in february 1988 the plaintiffs completed the purchase of their cottage, which faced the green and which was at its most acute 55.5 yards from the nearest pitch. judge hague noted that it is the very nature of the game to attempt to hit the ball towards or over the boundary and that given the proximity of the pitch to the adjoining cottages some interference with property was inevitable. the actual propensity to interference varied between the different houses in different positions around the cricket square and the description of the issues showed a shrewd understanding of cricketing detail by the judge: "there is not much problem from a drive back over the bowler's head, or in the direction of long off or long on, or from (a) fine leg glance or a delicate late cut, or perhaps more elegantly (if the cricket club will forgive me for saying 9. ibid. at p.341. 10. the village had long associations with the quaker movement. in 1920 some members of the movement bought 102 acres of land in the village and transferred part of that land (the green) to jordans village limited, a society created for the express purpose of creating a village community. 11. lacey, supra. n.2, at p.2. 55 the denning law journal so) a snick through the slips or a miss by the wicketkeeper ... the evidence was that it was leg side hits . . . (to deep mid wicket or deep cover point) . . . which tended to be the hardest and the most likely to be lofted, whether by a genuine hook or pull, or by the traditional one-foot-down-the-wicket cross bat slog into what is sometimes called' 'cow shot corner". a hard slog behind the square can certainly be played, but in yillage cricket it is a good deal more rare. most shots going in that direction are the result of either nudges or glances, or of hooks and pulls which have been mis-hit or mis-timed, and as a result have less force ... even in first class cricket sixes over cover point or extra cover are relatively rare.12 it was not disputed that the position of the lacey's cottage, which judge hague deemed to be at backward square leg to the right handed batsman, was one of the areas most likely to be in danger during a cricket match, although not in the "cow shot corner" that the judge felt most vulnerable. 13 there was evidence of actual damage to the houses surrounding the green but there was no evidence of personal injury having been occasioned; since 1967 there had been only two incidents involving broken windows, both of which had been quickly replaced at the expense of the club. as regards the plaintiffs cottage the judge found that at most the ball came into their garden on 5 or 6 times in a season, that these had primarily been at ground level and that there was no evidence of any damage being done to linden cottage in the past. as such, whilst there was a degree of risk such a risk was a very small one. in addition, the club had taken a series of measures designed to further minimise that risk by instructing players not to play shots in that area, asking opposing captains to not put on bowlers who were likely to be hit in that direction and adopting a local rule that any ball hit into that portion of the ground on the full toss would count as 4 and not 6.14 the club'had also looked into the possibility of moving their ground but this would have proved impracticable due to lack of suitable alternatives in the village. is all the cases exhibit the common ground of having to balance the interests of the well established and traditional against those of "newcomers" with perhaps less conservative ideals. however a prime difference is that in bolton the plaintiff suffered physical injury whilst in both miller and lacey although there were allegations of 12. ibid. at p.8 13. the judge's analysis went on to show his wherewithal as regards the current state of cricket when he went on to consider the potential vulnerability if a left handed batsman were at the crease which he felt was increased: ••[of course there are also left'handed batsmen who hit the ball hard. mr brian lara recently reminded us of that in antigua, and continues to remind us at edgbaston if any reminder were needed]." ibid, at p,12. 14. after the conclusion of the case the cricket club amended its rules so that any batsman hitting the ball into the garden was dismissed! 15. one possible alternative, chalky fields, needed levelling and redeveloping and the club would not have been able to play cricket for around three years whilst this work was done. 56 the sanctity of the village green property damage and possible fear of injury no actual physical injury had been suffered. in both the latter cases aspersions were cast upon the soundness of the plaintiffs' fears and the veracity of their complaints. an issue that is referred to throughout both miller and lacey is the relationship between the complainants, the cricket club and the other villagers; judicial sympathy for such complaints is strongly balanced by support for the established community traditions. the concept of the complainant as an "outsider" to the village and the social affairs of the community is further outlined by fraser: "into this neighbourhood, this world of shared values and interpretations enters 'the newcomer';, the ideal and evil other, threatening the peace and harmony, the very existence of the community. the newcomer is foreign, other, dangerous. cricket is tradition, he is new; the villagers belong to the established practices of their cricket, he comes, inserts himself, violates their peace, threatens their very existence." 16 the problem in all three cases was for the judges to apply the established legal principles of nuisance and negligence to what is essentially a social and cultural dispute. in lacey other villagers submitted evidence in support of the cricket club and these views were held by the judge to be "plain and sober and simple notions among the english people". in miller lord denning m.r. explicitly recognised this area of the conflict and the position of the newcomer who seeks to upset the existing order of traditional village life and was cautious about utilising legal provisions to upset an existing status quo that had stood the test of time. the application of negligence and nuisance in bolton the claim was based squarely in negligence and the high court's dismissal of the claim had been reversed by the court of appeal. 17 the house of lords took a unanimous view that the respondent could not succeed in negligence because of the infrequency of cricket balls being hit onto the highway. accordingly the possibility of a pedestrian being injured would not be anticipated by the reasonable man and thus no liability existed: "it is not enough that the event should be such as can reasonably be foreseen. the further result that injury is likely to follow must also be such as a reasonable man would contemplate before he can be convicted of actionable negligence. 16. fraser, the man in the white is always right (sydney, 1993), p.zz: see further mcardle, "governing bodies: sport, the body and r v. brown ", manchester metropolitan university working paper in law and popular culture, series i no. i. referring to the court of appeal's approach in miller, fraser comments: "consider the romantic image of merrie england we are being presented with here. . . a sporting tradition which has existed on that pitch since edwardian times is now under threat from a 'newcomer' , an invader whose selfishness could destroy the fabric of village life and lead to the arrival of new unpleasantries a factory or housing development which surely ought not to be allowed to blight this pastoral scene," at p.z3. 17. the respondent had sued in nuisance also but this had been dismissed at first instance. 57 the denning law journal nor is the remote possibility of injury occurring enough. there must be sufficient probability to lead a reasonable man to anticipate it. the existence of some risk is an ordinary incident of life, even when all due care has been, as it must be, taken." 18 the upshot of the house of lords' decision was that the standard of care to be imposed was not an absolute one but was to be based on a series of factors. whilst these factors undoubtedly include reasonable foreseeability this of itself was not to be the sole litmus test issues such as the likelihood of harm occurring and the purpose of the act were important factors that also had to enter the evaluative equation. 19 the point is, of course, that the entire equation is a fine balancing act and as lord reid observed this case was "not far from the borderline". in miller the plaintiffs brought an action against the club claiming damages for negligence and nuisance and sought an injunction to restrain the club from playing cricket on the ground. at first instance such an injunction was granted and the defendants appealed. both geoffrey lane l.j. and cumming-bruce l.j. found that the club were liable in negligence as there was clearly a foreseeable risk that the plaintiffs would be injured by stray cricket balls and that it would be unreasonable to expect the plaintiffs to remain behind shutters or to leave their house whilst the cricket was on. lord denning m.r. dissented on this point on the grounds that the use of the ground by the club was eminently reasonable: "to my mind it is a most reasonable use. just consider the circumstances. for over 70 years the game of cricket has been played on this ground to the great benefit of the community as a whole, and to the injury of none. "20 this is effectively the same approach demonstrated in bolton, in that lord denning m.r. is once again weighing up the social utility or purpose of the act in question in deciding whether the cricket club have fallen below the required standard of care however the attempt of lord denning m.r. to preserve a little piece of british cultural history failed on this line. the crux of the case as far as the plaintiffs were concerned was essentially the issue of nuisance as the relief which they required was unavailable in an action for negligence.21 here the judicial response was to refuse an injunction to prevent cricket being played, despite a finding that the club's activities amounted to an actionable nuisance, on the basis that the status quo should be preserved after balancing the interests of the individuals with the interest of the public at large: 18. supra. n.3. per lord porter at 1081. 19. see further on this economic analysis of the law of tort, posner (1972) 1 journal of legal studies 29 and the approach of hand j. in united states v. carroll towing co. fnc. 159 f. 2d 19 (1947). 20. miller. supra. n.4 at 344. 21. as lord denning m.r. observed: "the books are full of cases where an injunction has been granted to restrain the continuance of a nuisance. but here is no case, so far as i know, where it has been granted so as to stop a man being negligent." ibid. at 343-g. 58 http://www.ingentaconnect.com/content/external-references?article=0047-2530(1972)1l.29[aid=7385596] http://www.ingentaconnect.com/content/external-references?article=0047-2530(1972)1l.29[aid=7385596] the sanctity of the village green "there is a contest here between the interest of the public at large and the interest of a private individual. the public interest lies in protecting the environment by preserving our playing fields in the face of mounting development, and by enabling our youth to enjoy all the benefits of outdoor games, such as cricket and football. the private interest lies in securing the privacy of his home and garden without intrusion or interference by anyone. .. i am of opinion that the public interest should prevail over the private interest.' '22 the good folk of lintz were therefore allowed to continue to play their cricket on the village green, to continue the tradition started by their forefathers and to enable the traditions of the village to pass down to their own children in due course. the outsider or newcomer was once again given little sympathy when the judges evaluated whether or not to grant the order requested. lord denning m.r.'s general approach is ably demonstrated by lacey, where the plaintiffs argued that the intrusion of cricket balls onto their property amounted to an unreasonable interference with the use of their land. they sought an order that the cricket club erect nets, 25 feet high, in front of their cottage before each game and an injunction to prevent cricket being played on the village green if the protective nets were not erected. although both nuisance and negligence were pleaded, it was agreed that the plaintiffs could not succeed in negligence if they failed in nuisance. judge hague was not prepared to support lord denning m.r.'s radical view of sturges v. bridgeman23 expressed in miller and followed the majority of the court of appeal on this point.24 it was therefore no defence that the laceys' had "come to the nuisance"; he was nevertheless able to distinguish miller on the basis that the risk of injury in the case before him was minimal: "that makes miller v. jackson plainly distinguishable for, as i read it, it was the serious risk in that case that led the majority to hold that there as an actionable nuisance and there is no such serious risk in this case. "25 as there was no actionable nuisance there was no question as to the granting of an injunction, however, judge hague made a strong case, based on the principles laid out in miller, that this would have been refused even had a nuisance been demonstrated to exist,26 this refusal was based on the discretion that the court exercises when considering whether or not to grant an injunction. the points that judge hague thought weighed against the granting of an injunction were; the inappropriateness of the nets, the fact that there was no real hardship to the plaintiffs, the offer of the cricket club 22. ibid. at 345. 23. (1879) 11 ch. d. 852. 24. lord denning m.r. argued persuasively for a review of sturges. "the building of a house does not convert the playing of cricket into a nuisance when it was not so before". miller, supra. n.4 at 344. 25. supra. n.2 at p.14. 59 the denning law journal to erect window grills, that the plaintiffs had come to the nuisance and that the injunction would be damage to not only the cricket club but the interests of the village as a whole thus returning to the approach that lord denning m.r. effectively outlined in miller. conclusion lord denning m.r.'s original analysis is interesting for a number of reasons; not least because of the undercurrent of protecting a little piece of england and a cultural force that deters the folk of the village from turning to more destructive pastimes. the game of cricket is seen both as a microcosm of a utopian society and a clarion call for a return to the values that such a society espouses. the threat to this is embodied in the notion of' 'the foreigner", "the outsider", who has come to invade the sacred social text that is village cricket: "the new, the foreign, the materialistic, all these nefarious elements threaten truth and community. they threaten the community like a virus for like a virus they are foreign. unlike even a virus, however, the newcomer is not natural he threatens cricket ... its values, fair play, gentlemanly conduct, "the spirit of the game", are not only natural, they are public values, constitutive of the social text of what it means to be english. in the final analysis, what the newcomer has done "just isn't cricket" ',27 whilst the judgment in lacey is not as explicit on these themes the intimation of protecting the village interest is apparent. the evidence of others villagers is considered and the balancing of the private and public interest again weighs heavily in support of the collective against the individual. what lacey does demonstrate is that the dichotomy between the established order and the newcomer is both an ongoing and a serious problem. to date the cases demonstrate that the judges will moderate the protection of individual property rights and uphold the collective rights of the majority to continue with established community activities and exercise their judgment with the avowed intention of preserving their own vision of what constitutes life in the community. 26. the main reasons given for the finding that no actionable nuisance existed were: "i. the playing of cricket on the village green is a reasonable and long established use. 2. the risk of serious injury is minimal and the interference with mr and mrs lacey's enjoyment of their property is not undue. 3. such interference is the consequence of the character of the neighbourhood. ie the proximity of the village green. 4. whether the interference is unreasonable must be tested by the standards of average people and not the susceptibilities of mr and mrs lacey. a]though no means conclusive. the willing acceptance by others of comparable interference confirms my view that the interference in this case is not unreasonable." (lacey supra n.2. 27. fraser. supra n. ]6. p.23. 60 a framework for dispute resolutionthe industry ombudsmen in new zealand liz brown' new zealand is a small and sparsely populated country with a penchant for bursts of radical legislation that have earned it a reputation as a social laboratory. one consequence of its size is the comparatively simple structure of its constitutional arrangements, which until recently have included a small legislature comprised of a single chamber tightly controlled by the government of the day.] this permits legislation to be introduced and passed with a speed that has variously been described as exhilarating and terrifying. in this context, it is not surprising that the first ombudsman outside scandinavia was appointed in new zealand (in 1962) nor that the institution of the ombudsman became one of some constitutional significance particularly after the official information act 1982 gave the ombudsmen responsibility for determining disputes over access to information held by government departments and agencies.2 the concept of the ombudsman as an independent authority of considerable stature took root in the new zealand popular consciousness and is reflected both in the maori title for the office te kaitiaki mana tangatcr and in the statutory protection for the name "ombudsman", which cannot be used without the consent of the chief ombudsman.4 the institution became seen as one of a limited array of checks on the executive power of government. • new zealand banking ombudsman i a proportional representation system was introduced in 1996. it is too early to evaluate its effects, but it seems likely that the norm will become minority or coalition governments with less scope for rapid and radical legislative change. 2 the privacy act 1993 now governs access to personal information held by government and other agencies. 3 "the guardian of the mana of the people." "mana" is a word that is almost untranslatable, but carries connotations of power, status and both temporal and spiritual authority. 4 ombudsmen act 1975 s. 28a. 67 the denning law journal the original objective of the ombudsman legislation was to provide a remedy where there was no recourse to the courts.s section 1 3(7)(a) of the ombudsmen act prohibits the ombudsmen from investigating: "any decision, recommendation, act, or omission in respect of which there is, under the provisions of any act or regulation, a right of appeal or objection, or a right to apply for a review, available to the complainant, on the merits of the case, to any court, or to any tribunal constituted by or under any enactment, whether or not that right of appeal or objection or application has been exercised in the particular case, and whether or not any time prescribed for the exercise of that right has expired. provided that the ombudsman may conduct an investigation (not being an investigation relating to any decision, recommendation, act, or omission to which any other paragraph ofthis subsection applies) notwithstanding that the complainant has or had such right if by reason of special circumstances it would be unreasonable to expect him to resort or have resorted to it." the discretion conferred by the proviso to section 13(7)(a) is often exercised when the only alternative open to a complainant is to apply for judicial review, but rarely in other circumstances. in general, the ombudsmen are not seen, and do not see themselves as an alternative to litigation. possibly as a result of this attitude, the courts have taken a respectful view of their relationship with the ombudsmen on the occasions when ombudsmen decisions are before them. "parliament delegated to the chief ombudsman tasks, which at times are complex and even agonising, with no expectation that the courts would sit on his shoulder about those judgements which are essentially balancing exercises involving competing interests. the courts will only intervene when the chief ombudsman is plainly and demonstrably wrong.,,6 private sector ombudsmen were late arriving in new zealand: the banking ombudsman scheme commenced in 1992 and the insurance and savings 5 the original legislation was the parliamentary commissioner (ombudsman) act 1962. 6 jeffries, 1. in wyatt co (nz) ltd v queenstown-lakes district council [1991] 2 n.z.l.r. ]80. 68 a framework for dispute resolution ombudsman scheme in 1994. with a thirty year history behind it the classical ombudsman role is so well known that it is sometimes difficult, even for lawyers, to accept that the private sector schemes may use much the same process of investigation but have quite a different role. in particular they have no statutory base, and their main function is to offer a low-cost, speedy and specialised alternative to litigation for all but the most complex or high value claims against scheme members.? where the classical ombudsmen have generally acted as a supplement to the law in the sense that they offer a remedy where litigation does not, the private sector ombudsmen are a genuine alternative to litigation and in many ways are more closely linked with legal practice outside the specialised area of administrative law. in making determinations of complaints they apply the law, they use formal supplements to the law in the form of codes of practice, they use informal supplements in seeking to establish good practice in areas where codes are silent and they work in parallel with the law when their investigations impinge on legal action taken by the organisations subject to their jurisdiction, often in the field of debt recovery. in the case of the banking ombudsman, the terms of reference are specific about the ombudsman's obligations in making determinations. paragraph 16 provides: "in making any recommendation or award under these terms of reference the banking ombudsman shall do so by reference to what is, in his or her opinion, fair in all the circumstances, and (a) shall observe any applicable rule of law or relevant judicial authority (including but not limited to any such rule or authority concerning the legal effect of the express or implied terms of any contract between the complainant and any participating bank names in the complaint); and (b) shall have regard to general principles of good banking practice and any relevant code of practice applicable to the subject matter of the complaint. the banking ombudsman shall not be bound by any previous decision made by him or her or by any predecessor in his or her office. in determining what are the principles of good banking practice he or she shall consult within the industry." 7 the jurisdictional limit is currently $100,000 for both schemes. 69 the denning law journal there is similar provision in the tenns of reference for the insurance and savings ombudsman, with one major difference. paragraph 5.6 of those terms of reference reads: "in making any recommendation or award under these terms of reference the insurance and savings ombudsman shall do so by reference to what is, in his or her opinion, fair in all the circumstances, and in so doing, except to the extent that he or she considers in all the circumstances that it would be inappropriate to do so, shall have regard to...(a) any applicable rule oflaw ...."8 the remainder of the paragraph is almost identical to paragraph 16, except that there is some detail as to the matters that the insurance and savings ombudsman may consider in determining what is fair and reasonable. appl ving the law the first and obvious way in which ombudsmen interact with the legal system in general is by applying the law in making determinations. even here, however, there is room for different approaches as can be seen from the different provisions of the terms of reference cited above. while only some of our more optimistic complainants would suggest that an ombudsman should ignore basic legal principles, such as those that govern the formation of contracts, a more difficult question can arise when an ombudsman is operating in an area of law where it is generally acknowledged that the existing judicial authority is unsatisfactory or confusing. in such a case the insurance and savings ombudsman has some basis for reaching a conclusion that is not strictly in accordance with existing precedent, and indeed has done so in some cases where insurance companies sought to decline claims by reason of non-disclosure of material information by the insured person. the law on non-disclosure is in need of clarification and is generally thought to place too onerous an obligation on applicants in respect of the need to disclose information.9 relying in part on the fair insurance code 10 and in part on the "fair in all the 8 emphasis added. 9 see, for example, report no. 46 of the law commission, "some in.\1lrance law reforms". 10 infra. 70 a framework for dispute resolution circumstances" jurisdiction, the insurance and savings ombudsman has taken the view that although an insured person generally has a duty to disclose material facts whether or not the insurer has asked for the relevant information: "in some cases i may find that where an insurer has not asked any questions, has not asked enough questions or has not asked sufficiently clear questions, that they have behaved unfairly towards the complainant. in such circumstances .... i may find in favour of the complainant."] 1 it is not certain whether the banking ombudsman would be able to take the same approach, at least where the legal precedents are reasonably clear. the handling of insurance claims is a contentious business and there is a good deal of case law directly on points likely to come before an ombudsman operating in that field. comparatively few of the complaints that come before a banking ombudsman involve issues where case law is likely to have some direct application. i incline to the view that the requirement to "observe" rules of law and judicial authority gives a little latitude for divergence, but have not yet been faced with the need to test this view. it is much more clear that a bank will not necessarily be absolved of all responsibility to a complainant by fulfilling its legal obligations. in several cases i have found that although a bank was entitled at law to demand payment from a complainant and had complied with the procedural requirements in making demand, it was unreasonable and unfair, given the circumstances of the case, to expect the complainant to comply. in a case reported in a recent annual report, for example, an elderly couple had been persuaded to purchase an investment property jointly with a young businessman. the purchase was to be financed by way of a capital sum provided by the couple and a loan in the names of all three participants, secured against the property and serviced by the young man. the loan repayments fell into arrears at an early stage and after some months the young man disappeared overseas, leaving substantial debts behind. the couple sought the transfer of the property title into their names only, by way of part repayment of debts owed to them by the other party. at this point they discovered that at a date after the loan offer had been made but before the loan documents had been executed, the bank had granted him a personal overdraft of some $3,000 (since increased by the accrual of interest). the 11 report ofthe insurance and savings ombudsman for the year ended 30 june 1996, p. 15. 71 the denning law journal bank required repayment ofthe overdraft as well as the loan before it would consent to the transfer of title. investigation revealed that the loan document was an "all obligations" mortgage and that on its execution the overdraft became secured against the property. it also became clear that the overdraft had been granted on an unsecured and informal basis (in fact it was not documented at all) and that there was no way in which the complainants could have known about it when they entered into the loan agreement. while it could not be said that the bank had a positive duty to disclose the existence of the overdraft when the loan documents were executed, it was in all the circumstances unfair for it to expect repayment from the complainants.12 formal supplements to the law codes of practice industry codes of practice are perhaps best seen as a means of fleshing out the framework of the law as it applies to the individual industry. a bank that has failed to comply with the requirements of the code of banking practice is likely to be in breach of its contract with a customer if the code is incorporated into the terms and conditions on which it supplies services. non-compliance may be evidence of negligence, and it may also be a breach of a statutory duty. in a recent case where the plaintiff claimed a breach of the fair trading act 1986, justice doogue remarked: "[the code of banking practice] is a clear guide to good banking practice. a breach of it must always be likely to give rise to misleading conduct."13 the code of banking practice effectively acts in three ways as a guide for assessing banks' conduct. it contains information about the law applying to the banker/customer relationship; it sets some specific mles which banks are obliged to incorporate into their contractual arrangements with their personal customers and it contains some more general statements of the principles which banks are expected 12 case reported in full as 'case 9k', annual report of the banking ombudsman 1997/8, p. 58. 13 dungey v anz banking group (nz) ltd [1997] n.z.f.l.r. 404 . 72 a framework for dispute resolution to observe.14 infonnation about the law, such as the infonnation contained in clause 7.2 about the circmnstances in which banks may refuse payment on bank cheques, is no doubt of assistance to customers in understanding the nature of banking transactions they may have undertaken, but is not often relevant to complaint investigation. if an investigation involves a point of law, it is usually necessary to go back to the statutory or other authority to establish the legal basis for the detennination of the complaint. parts of the code of banking practice are quite specific as to the obligations tmdertaken by a bank that subscribes to it. it contains, for example, the basic rules about liability for loss caused by the use of bank cards for unauthorised transactions. banks may issue cards on tenns that are more favourable to their customers than the code provisions, but they may not impose more onerous conditions. in cases which involve consideration of the rules contained in the code of banking practice, the role of the banking ombudsman is usually little different from the role in applying banking law in general. there may, however, be problems of interpretation, and there may be unusual facts underlying a complaint so that the rules are difficult to apply. in such cases the banking ombudsman also has the role of monitoring the code and making recommendations for change. is in a recent case, for example, the banking ombudsman had to consider the application of the nues relating to card fraud in circumstances where a customer had failed to advise his bank of a change of address and a card was sent to his fonner address where it was intercepted by his fonner wife. although the selected pin did not fall into one of the forbidden categories, her knowledge of his habits was such that she was able to guess it and used the card to withdraw substantial s\ulls. clause 5.1.3 of the code states finnly that "you will not be liable for losses occurring before you receive your card". there is no provision for customers to bear the loss in whole or in part if they have contributed to it by their own negligence, as there is when cards are misused after they have come into the possession of the customer. in the next code review, banks will be invited to consider whether there should be an amendment to cover cases where the failure to receive the card can be attributed 14 the code of banking practice does not apply to banks' relationships with their business customers. new zealand has no equivalent to the codes or statements of principle that apply to banks' relationships with at least their small business customers in canada or the united kingdom and which are in preparation in australia. is clause 1.2 provides that the code " ...will be monitored by the banking ombudsman and reviewed in the banking ombudsman's annual report, which is a public document." 73 the denning law journal to the customer's negligence. other parts of the code are less specific about the obligations that banks have undertaken and it is in this area that the code is of more use as a guide in assessing what is fair in all the circumstances of the case than as a specific set of rules to apply. clause 1.7.2, for example, requires banks to: ". . make timely and adequate provision of information to help you understand how your bank accounts and banking services operate so that you can make an informed choice to best suit your needs." a great many cases hinge on the timeliness and adequacy of information provided by banks to their customers, particularly as a perennial failing of bank staff is to make lillwarranted assumptions about customers' understanding of bank processes. it is an interesting feature of the banking ombudsman's case load, for example, that although the volwne of cheque transactions in new zealand is declining as more and more transactions are made electronically, there is no matching decline in complaints to do with cheques. it seems likely that we are seeing a generation of bank customers who are not familiar with the use of cheques and who need more information than their predecessors about such matters as clearance times or crossings and endorsements. an industry code of practice tlms supplements in various ways the law relating to the complaints considered by the industry ombudsman. the code of banking practice displays the full range from repeating the substantive law to setting out rules that operate as a sort of defacto subordinate legislation to providing guidance in the form of statements of principle. other codes are narrower in application. the fair insurance code, for example, describes itself as a set of principles that guides the relationship between member companies and tlleir customers and contains few rules. the collection of codes administered by the advertising standards authority, on the other hand, are in general very detailed and in some cases have an appearance very similar to statutory regulations.16 informal supplements to the law "fair in all the circumstances" codes of practice, as noted above, provide fonnal supplements to the law and also 16 see, for example, the code for advertising liquor, which has a definitions section and a statement of five basic principles followed by rules with sub-sections. 74 a framework for dispute resolution some guidance for an ombudsman faced with the need to decide what is fair in the circumstances ofa particular case. given the inquisitorial nature of the ombudsman process, it is not surprising to find that ombudsmen also seek out information about the standards that the members of their schemes should observe. in a number of the larger schemes, such as the banking ombudsman schemes in the united kingdom and australia, up-to-date expertise on the industry is provided by a resident adviser seconded from a scheme member. smaller schemes, such as the new zealand banking ombudsman and insurance and savings ombudsman schemes, cannot afford to support a full time adviser and rely on other means to ascertain the accepted standards of practice in areas where the relevant code of practice is silent or insufficiently detailed. most commonly, the banking ombudsman consults with the banking industry by way of an industry survey on specific points of practice. surveys are carried out with the assistance of the new zealand bankers association and may be surveys of all scheme members or only of the main banks.17 the issues on which surveys have been conducted in recent years include: • responsibilities of paying banks when asked to accept a cheque where the name of the payee has been altered • the appropriate information and advice to be given to merchants who make arrangements to accept payment by credit card for orders placed by telephone or mail. • the form of a bank cheque on settlement of a sale of property • penalties on early repayment of a fixed interest rate loan • identification requirements for new customers consultation with the industry sometimes takes the form of consultation with nominated experts on bank systems. there is also the occasional consultation outside the industry as in a recent case where it was important to establish bank customers' rights to a review of legal costs incurred and paid by banks and later passed on to customers. costs reviews are carried out by district law societies and a survey of tlle various societies proved useful and informative. practices among industry ombudsmen vary considerably according to the nature of the industry they cover and the statute, terms of reference or other basis for their appointment. some make virtually all decisions on the papers while others routinely' conduct hearings or mediation meetings. some base their decisions almost entirely 17 the new zealand scheme is very small by world standards. at its inception in 1992 there were seventeen member banks. mergers and the withdrawal of some overseas banks have reduced that number to nine, only six of which have a substantial share of the retail market 75 the denning law journal on the submissions made by the parties to the complaint while others are more inclined to investigate such submissions in detail and base their decisions on the results of that investigation. in doing so, all ombudsmen apply the law, and all ombudsmen ultimately rely on generally accepted standards of fairness and reasonableness, with greater or lesser assistance from formal or informal supplements to the law. it should not be forgotten, however, that in many cases, at least in the new zealand jurisdiction, complaints are resolved without the need to make a fonnal determination. in the 1997/8 year fonnal recommendations were made in only 24% ofthe investigations completed. 40% of investigations terminated when an agreed settlement was reached. 18 appendix a to this paper consists of brief case histories of three very different types of complaint. in case i, the banking ombudsman was called on to apply clear law and was acting no differently from ajudge or referee. in case 2, the inquisitorial process is seen in effect along with the use of the code of banking practice. case 3 is quite different. it illustrates a co-operative approach to complaint resolution that is a long way from litigation, and to my mind demonstrates much that is good about the ombudsman process as an alternative to litigation. working in parallel with the law the earlier part of this paper discussed the means by which ombudsmen use, supplement and act as an alternative to legal process. the cases -that come to ombudsmen, however, may have implications beyond the subject matter of the complaint, and it is not unusual to find that while the ombudsman is investigating or contemplating the investigation of a complaint, there are legal proceedings that impinge on the investigation. in the banking context, these are usually debt recovery proceedings and in a number of cases the complaint can only be regarded as an attempt to delay the inevitable bankruptcy or realisation of the loan security. other cases, of course, raise a genuine question as to whether the bank should be embarking on recovery action. where there are current or completed legal proceedings directly on the subject of the complaint, the position is clear. most industry ombudsmen will be precluded from considering such a complaint. paragraph 22(f) of the banking ombudsman's 18 of the remaining cases, 29% were withdrawn or abandoned by the complainant before the stage at which a formal recommendation would have been made, and in 7% a jurisdictional impediment appeared during the course of the investigation. 76 a framework for dispute resolution terms of reference provides: " the banking ombudsman shall only consider (or continue to consider) a complaint made to him or her if he or she is satisfied that: (f) neither the complaint made to him or her nor any other complaint by the same complainant (or anyone or more of them) in respect of the same subject matter is, has been or becomes to the knowledge of the banking ombudsman the subject of any proceedings in or before any court, tribunal or arbitrator, or any other independent or statutory complaints or conciliation body, or of any investigation by a statutory ombudsman;" from time to time banks. or more frequently their legal advisers. suggest either that the complainant ought to pursue the complaint by taking legal action against the bank or that the bank should issue proceedings against the complainant and leave the subject matter of the complaint to be raised by way of defence. a bank may effectively prevent the banking ombudsman from commencing or continuing an investigation by taking legal action against the complainant. it is clearly contrary to the purposes and spirit of the banking ombudsman scheme for a bank to do this if it is aware of the banking ombudsman's involvement with a complaint, and on the rare occasions when such action has been threatened, it has usually been by a newcomer to the bank's legal team who is not familiar with the nature of the banking ombudsman scheme. discussions at a more senior level have to date invariably resolved the difficulty. paragraph 1 8(d) of the banking ombudsman's terms of reference provides that the banking ombudsman may decline to consider a complaint: "if at any time it appears to the banking ombudsman that it is more appropriate that the complaint be dealt with by a court, under another independent or statutory complaints or conciliation procedure or under an arbitration procedure;" accordingly if a bank considers a matter would he more appropriately determined by a court, it has two options: (i) it may ask the banking ombudsman to consider declining jurisdiction under paragraph 18(d): or (ii) it may invoke the "test case" process whereby, with the banking ombudsman's 77 the denning law journal approval, complaints involving important or new points of law or with important consequences for the bank's business may be litigated on the bank's undertaking to pay the complainant's costs.19 the test case process has not been used in new zealand, although in two cases the banking ombudsman has indicated that she would be likely to approve its use. both cases were ones where a finding in favour of the complainant would have obliged the bank to consider the impact on its relationship with numbers of customers with potentially serious consequences for its business. the discretion given by paragraph 18(d) is exercised sparingly. it is most often used in cases where part of the complaint falls within the terms of reference but there are major issues that are excluded from the banking ombudsman's consideration and it is desirable that all issues be considered together. it has also been used in cases where the complainant has access to a specialist complaints-handling process such as the complaints division of the privacy commissioner's office or the human rights commission and ultimately the complaints review triblmal.2°ln general, however, complainants ought not to be denied access to the forum of their choice, and the banking ombudsman will consider a complaint unless there are manifest reasons why such consideration would be inappropriate. rather different issues arise when a complainant asks the banking ombudsman to investigate a complaint and the bank has already commenced proceedings or other recovery action or has taken some preliminary steps in that direction. if proceedings have been commenced and are on the same subject matter as the complaint, then the decision is simple: the complaint falls outside the terms of reference. matters are more complicated when the proceedings are not directly on the subject matter of the complaint or where the bank has indicated that it intends to take proceedings and has completed some preliminary processes but has not yet actually issued proceedings or where it has, for example, set in motion a mortgagee sale process. it is at this point that the ombudsman process can become closely entwined with the legal process and it sometimes becomes difficult to ensure that the investigation does not prejudge the issues or otherwise trespass on the province of the courts. if at all practicable, the bank is asked to refrain from any action that will 19 paragraphs 23 and 24 of the banking ombudsman's terms of reference. 20 the complaints review tribunal reviews complaints that were originally made to organisations such as the privacy commissioner or the human rights commission. 78 a framework for dispute resolution irreversibly affect the outcome of an investigation. the decision to make such a request is not taken lightly as there is a need to recognise that both the bank and its customer may be disadvantaged by any delay. a postponement of action may mean extra costs for either party. the bank may have incurred legal and other costs that will eventually be passed on to the customer, penalty interest may be accruing, the security may be deteriorating. it is sometimes possible to separate the subject matter of the complaint from the subject matter of the proposed action. a bank is not generally asked to suspend action when, for example, the complaint is solely about the handling of the debt recovery process or is a complaint of breach of privacy and there is no obvious monetary loss to the complainant. nor is a bank asked to suspend action if it is clear that, whatever tlle outcome of the investigation, the action is going to be necessary to recover a debt. if there is a dispute about the amount the bank is entitled to recover, but even on the most favourable calculation the complainant's obligations can only be met by the sale of the secwity, then there is little point in postponement. the most difficult cases are those where a determination of the complaint in favour of tlle complainant will mean that no legal action is necessary. the banking ombudsman has no power to require a bank to postpone action while a complaint is investigated and there have been occasions when a bank has been extremely reluctant to comply with a request to do so. to a certain extent the problem has been overcome by the banking ombudsman's publication of a set of guidelines which will be followed when deciding whetller a bank should be requested to suspend legal action, cancel auction arrangements or otherwise refrain from irreversibly affecting the complainant's position.21 the guidelines make it clear ti1atsuch a request will not be made unless it is necessary to protect the status quo and ti1at the banking ombudsman will always be prepared to discuss with banks any steps they may wish to take to protect tlleir position without prejudicing that of the complainant. it is in the acceptance by banks of such measures that one of the greatest strengths of the banking ombudsman scheme lies, and indeed it reflects one of the strengths of many industry ombudsman schemes. it is in11erentin an effective scheme that the ombudsman is totally impartial and independent of scheme members in determining complaints. the commitment of members to the scheme that they have established, promoted and funded, however, means that it is entirely possible for the ombudsman to work with scheme members to strengthen and improve the process that is offered as an alternative to litigation. at its best, an ombudsman scheme is sufficiently strong and flexible to work 21 in her annual report for the 1996/7 year. 79 the denning law journal within the law and alongside the law but always with a view to working with the organisations over which its jurisdiction lies to resolve the problems of their complainants. only when resolution by cooperation proves impossible should an ombudsman process take on a closer resemblance to the legal process and provide an authoritative determination of a complaint. appendix a some case histories case 1 ms. b had separated from her husband, mr r. the marriage had been a violent one and ms b had obtained a protection order against mr r. she called into her bank to inform it of the ending of her marriage, to close her joint account with mr r and to change the name on her accolmtsfrom her married to her maiden name. ms b made it clear to the bank that she wanted nothing further to do with mr r. she then moved to a different part of the country and advised the bank of her new address. mr r called into the bank and was able to arrange for ms b's bank statements to be sent to a post office box that he had opened. ms b was very shocked and distressed to learn that, despite her efforts, mr r was receiving copies of her bank statements and was aware of the place in which she was now living. in fact, by looking at the pattern of her eft and atm transactions, he could probably have traced her quite easily. ms b was so concerned for her safety that she felt she had no option but to relocate immediately and moved to another town. in moving ms b incurred the cost of removal and lost the bond she had paid for her flat as she was unable to give the notice required by the term of her lease. a complaint was lodged with the banking ombudsman, who was able to establish that ms b did not authorise the change of address to the post office box. she found a clear breach of the privacy act 1993, and recommended that the bank pay ms b's removal costs together with a substantial sum by way of compensation for. . mconvemence. case 2 when ms m was unexpectedly made redundant from her job, a friend suggested that she ask her bank for a mortgage holiday in order to give her some breathing space until she found new employment. the next day ms m telephoned her bank to explain her circumstances. the bank officer was very understanding 80 a framework for dispute resolution and told her over the telephone that she could have a three month loan repayment holiday effective from her next mortgage payment date. the bank later faxed through to ms m the relevant application form which a grateful ms m signed and faxed back to the bank. upon resumption of her mortgage payments three months later, ms m was dismayed to discover that a lump sum of approximately $4,500, (which was equivalent to the three individual monthly instalments of interest which had not been debited during the period ofthe holiday, the amount of the next monthly payment due and a sum of approximately $40 being interest accrued on the payments which were not made over the holiday period), had been debited to her loan account. the result of this was to increase her principal sum, which would mean that ms m would pay an estimated $5,000 in additional interest over the remaining term of the loan, and to extend the term of her loan by two years. ms m immediately complained to the bank that she had been misled as to the effect of the holiday. her understanding had been that she was trading three months' payments now for three months' payments at the end of the loan, that is, the term of her loan would be extended by three months as a result of the holiday. she had taken a reference to accrual of interest in the application form to mean that interest would accrue on the three payments she was deferring (a few hundred dollars) and not on the principal sum. the bank denied having misled ms m. it noted that ms m had acknowledged on the application form that interest would continue to accrue. as with all borrowing, interest was charged on the entire amount owing to the bank and there was nothing on the form or in any of the bank's representations which could have led ms m to believe that the bank would change the way in which it charged interest. the bank referred ms m to the banking ombudsman. although banks had for some time been prepared to offer loan repayment holidays, it was only recently that they had been promoted as a new and attractive part of a housing loan package. the banking ombudsman accordingly obtained and considered the promotional literature put out by banks and checked the calculations used to determine changes in loan terms and repayment instalments as a consequence of a repayment holiday. she found that the "holiday" was effectively a top-up or further loan consisting of the amount of the instalments that would have been paid if the holiday had not taken place. it was inappropriate for a product of this type to be sold or arranged entirely over the telephone. the customer should be asked to attend at the branch to sign the application form and should be given a proper and detailed explanation as to the effect of the loan repayment holiday, including: 81 the denning law journal the amount of the lump sum that would be debited to his or her account at the end of the holiday period. the new end date of the loan ifhe or she did not wish to increase his or her loan repayments; and the approximate amount in additional interest that the customer would pay over the remaining life of the loan. only by providing such information would the customer be equipped to make an "informed choice" as to whether or not the loan repayment holiday was best suited to his or her needs (clause 1.7.2 of the code of banking practice referred). it was clear that ms. m had not been provided with any such information. although she had read the application form, the phrase "interest will continue to accrue" was not sufficient by itselfto fully inform her of the effect of the holiday. the banking ombudsman did not think the bank could automatically assume that all of its customers were sufficiently knowledgeable about loan products or lending principles to understand that the expression "interest will continue to accrue" in this context meant that interest would continue to accrue on the principal of the loan as opposed to ms m's understanding tllat interest would continue to accrue only on the unpaid loan payments. the bank had therefore failed in its obligation to inform ms m of the consequences of taking out the loan repayment holiday. the banking ombudsman recommended a reorganisation of the loan so that ms m was put in the position that she had expected to be in at the conclusion of the holiday. case 3 mr d had two accounts with his bank. there was a cheque account which, at the time he approached the banking ombudsman, had an unauthorised overdraft of approximately $500. he also had a savings account. the conduct of the accounts had been unsatisfactory to the bank for some time and during march 1998 the bank wrote to mr d saying that it intended to close his accolmts. it wrote again in early april to a different address and finally hand delivered a letter on the thursday before easter. because of his frequent changes of address, the last letter was the only one that reached mr d. inunediately after easter, on the tuesday, mr d contacted the bank but it was not prepared to make any concessions and the following day the accounts were closed. this meant mr d was unable to access his social welfare benefit payment which had been direct credited to his account. the bank advised him that it would be taken in part payment of the overdraft. mr d submitted that this left 82 a framework for dispute resolution him without any funds for living expenses and, in particular, necessary medication. an investigator from the banking ombudsman's office contacted the bank as a matter of urgency and facilitated an agreement between mr d and the bank whereby mr d was permitted access to funds for living expenses, and agreed to a repayment programme that would see the overdraft extinguished reasonably quickly, at which point his accounts with the bank would be closed and he would arrange to open accounts with another bank. 83 editorial the 1993 volume of the denning law journal is the last volume with which clifford hall is associated as editor. as the editorial to the 1986 volume records, clifford hall was the originator of the idea which led to the publication of the journal, and he has been associated with the journal in an editorial capacity since its inception, first as staff editor, and, since the retirement of professor philip pettit, as general editor. we wish to record our thanks to clifford hall for his invaluable contribution over the lifetime of the journal. the reputation of the denning law journal owes much to clifford hall's enthusiasm and dedication. the years in which clifford hall has been editor have seen the denning law journal develop from a close focus on the central themes of lord denning's life, work, philosophy and vision to embrace a broader compass of legal scholarship. while the editors continue to welcome articles examining the importance of developing the common law, the need for the reform and modernisation of the law, the traditions of an independent and creative judiciary, the interplay between law and morality, and the defence of the individual the themes with which lord denning is most closely associated they would also welcome any other contributions to the understanding of the law which are likely to be of interest to a wide audience. short contributions, including articles examining recent developments in the law, are as welcome as longer articles. lord denning as a champion of children's rights: the legacy of hewer v. bryant andrew bainham* "... the legal right of a parent to the custody of a child ends at the 18th birthday: and even up till then, it is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. it starts with a right of control and ends with little more than advice."l introduction ask any family law teacher or student of family law which decision of the english courts has made the greatest contribution to the acceptance of the idea of children's rights and the answer would almost certainly be the gillick case? true enough, the majority of the house of lords established in that case that the legal capacity of a child to be involved in important decisions affecting him or her did not depend at common law exclusively on arbitrary age-limits but rather on the level of maturity and understanding of the individual child. thus, the notion of the gathering independence of adolescents took root and is now expressed in many places in the children act 19893 and, internationally, in the united nations convention on the rights of the child.4 but it is possible, perhaps, to overlook that there was a second, equally important, aspect to the gillick litigation. the decision also reasserted that there were limits to the legal authority of parents, despite the fact that parental 'rights' or 'custody,' now reconceptualised as 'parental responsibility,' continue to exist right up to the child's attainment of majority. it can plausibly be * fellow of christ's college, cambridge. l lord denning m.r. in hewer v. bryant [1970] 1 q,b.357 at 369. 2 gillick v. west norfolk and wisbech area health authority [1986] 1 f.l.r. 224. 3 see particularly s.1(3)(a), s.22(4), s.38(6) and s.43(8). 4 article 12 requires states parties to "assure to the child who is capable of folming his own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child." 81 denning law journal argued that lord denning's famous dictum in hewer v. bryant, set out above, was the real foundation for this part of the majority decision in gillick and, in that sense, has contributed as much, if not more, to the development of english law's approach to the legal relationship of parent and child. in this short tribute to lord denning i would go further. it will be my contention that if greater attention had been paid in the post-gillick period to the spirit of what lord denning had to say in 1969 the law would not now be in the unsatisfactory and somewhat confused state in which it undoubtedly is. this is a charge which i would lay primarily, but not exclusively, at the doorstep of the court of appeal. neither the former conservative government nor the present labour administration seem to have done at all well in comprehending what lord denning took to be self-evident thirty years ago that as the independence of children gradually takes hold, so parental control 'dwindles.' hewer v. bryant: the decision hewer v. bryant was not a case falling within the traditional parameters of family law. indeed, if those same family law teachers and students were asked to recall what the principal issue was in the case most would be very hard pressed to do so. it is indeed a tribute in itself to lord denning that a case which really had nothing to do with family law has continued to exert such an influence on thinking in the subject. the facts, characteristically with lord denning, are easier to glean from his judgment than they are from any other part of the report including the headnote: "fergus hewer was born on december 28, 1946. so he is now 22. on august 15, 1962, when he was 15 years and eight months, he was seriously injured in a motor accident. he could not himself bring an action for damages at that time because he was under 21 [the then age ofmajority].5 his father might have brought an action on his behalf, as his next friend, but he did not do so. so fergus, as soon as he was 21, issued a writ himself. it was issued on january 16, 1968, a week or two after his 21st. birthday. the defendant says the action is barred by the statutes of limitation. he says that fergus was at the time of the 5 the age of majority was reduced from 21 to 18 very shortly after the decision in hewer v. bryant by the family law reform act 1969. 82 the legacy of hewer v. bryant accident 'in the custody of a parent,' and that an action is barred after three years from the date of the accident.,,6 it is important to understand the argument of counsel for the defendant since it is essentially the argument which was to resurface again fifteen years later in the gillick saga and not just resurface but be unanimously upheld by the court of appeal. the gist of the argument was that "custody" when used in a statute was a technical legal term which should be given a technical legal interpretation.? it was possible to determine definitively who in law was vested with "custody" in relation to a child and, once determined, that was the end of the matter. the child was either in the "custody" of a person in this technical sense or not and the factual situation of the child's position vis-a-vis that person was irrelevant. therefore the fact that fergus hewer was living independently from his parents and was employed as an agricultural worker when the accident occurred was, according to this argument, of no significance to the question whether he was in the "custody" of his parents. if he was, any civil action would need to be brought on his behalf by his parents even though they were under no legal duty to bring it. lord denning would have none of this and enquired of counsel whether "the pop-singer who, though under twenty-one, earns thousands a year" was also "in the custody of a parent" so that if he should be injured the parent would be required to sue on his behalf within the three-year limitation period. for lord denning the concept of "custody" as used in the context of the limitation acts, denoted "a state of fact and not a state of law." an infant was only to be regarded as "in the custody of a parent" for these purposes where he was "in the effective care and control of a parent at the time of the accident."g on this test fergus hewer was clearly not in his father's custody having, at the relevant time, left home and taken up employment miles away as a farm-worker at the agricultural wage. accordingly his claim was not statute-barred. lord denning rejected the notion of absolute authority over children, exemplified by the victorian parent, taking the view that the common law 6 by virtue of an amendment introduced in 1954 an infant who had suffered personal injuries was to be barred from bringing an action after three years from the date of the accident unless he could prove that he "was not, at the time when the right of action accrued to him, in the custody of a parent." (s.2(2) of the law reform (limitation of actions, etc) act 1954 amending s.22 of the limitation act 1939). ? as raymond kidwell q.c. and hilary barker for the defendant put it: "when parliament in 1939, after centuries of history, used the words 'in the custody of a parent' they should be taken to have intended that bundle of rights and duties comprised in the common law concept of 'custody' familiar in every branch of family jurisdiction." [at p.363]. b supra n.l at p.370. 83 denning law journal "can, and should, keep pace with the times.,,9 but the spectre ofthe victorian parent was to re-emerge in the thatcherite 80s in the shape and form of victoria gillick. 10 gillick and the influence of hewer v. bryant mrs. gillick, as is well-known, asserted, inter alia, that in the matter of contraceptive advice or treatment given to girls under the age of sixteen the parent had an unqualified right to be consulted and a veto on such dealings between children and the medical profession. she lost at first instance before woolf 1. (as he then was) who, in the course of his judgment, relied on "the vivid language of lord denning" and took the view that he was not required "to ignore the change in attitudes since the victorian era.,,11 the court of appeal, on the other hand, had no difficulty relying on the late victorian decision in re agar-ellis in which the court had upheld the absolute authority of a father over his seventeen-year-old daughter which was said to continue unabated until the acquisition of majority at twentyone.12 parker l.j. noted lord denning's "trenchant criticism" of this decision but also observed that: "lord denning was clearly of the view that the legal right to custody continues, and should continue, up to but not beyond, the child's 18th. birthday (which it does) albeit that the right was a dwindling one." for parker l.j. this legal right of control of the parent was unassailable, subject only to the court's power to intervene where the parent was not thought to be acting in the child's best interests. fox l.j. took the same position but expressed it somewhat differently. according to him, "lord denning ... despite his criticism of re agar-ellis did not doubt that legal custody should continue to 18 though as the child gets older it may, in practice, be a waning right unless the court is prepared to support it for the child's welfare."l3 9 ibid at p.369. 10 mrs margaret thatcher (now baroness thatcher of kesteven), the then prime minister, famously favoured a return to "victorian values" not least in relation to the family. 11 [1984] f.l.r. 249 at 261. 12 (1883) 24 ch.d. 317. 13 [1985] f.l.r. 736 at 750-751. 84 the legacy of hewerv. bryant the essence, therefore, of the court of appeal's decision was that unless and until someone challenged the exercise of parental authority before the courts, that authority or control remained absolute. "custody," by this time more accurately known as "parental rights and duties,,14 was either vested in someone or not, in a technical legal sense and, subject to possible intervention by the court, that was the end of the matter. in other words, the very argument of counsel for the defendant in hewer v. bryant, so comprehensively dispatched by lord denning, was uncritically accepted by the court of appeal in gillick. the house of lords allowed the appeal ofthe d.h.s.s. by a thin majority of three-two. is it is perhaps revealing that the two dissenting members, lords brandon and templeman, made no reference whatever in their respective speeches to hewer v. bryant and, as we shall see, apart from one passing reference this is very largely true of the judgments in two subsequent decisions of the court of appeal which have come to represent "the retreat from gillick.,,16 the principal majority speeches of lords fraser and scarman, on the contrary, rely heavily on what lord denning had to say in particular his scathing criticism of the re agarellis case which lord scarman described as "horrendous" and "rightly remaindered to the history books by the court of appeal in hewer v. bryant."17 lord fraser agreed with "every word" of lord denning's dictum and "especially with the description of the father's authority as a dwindling right." 18 so it was that the house of lords, albeit by majority, was able to hold robustly that there were indeed legal limits on parental control which was not absolute despite its continuation right up to the child's majority. as lord scarman put it "parental rights are derived from parental duty and exist only so long as they are needed for the protection of the person or property of the child,,19 and lord fraser was at pains to underline that such rights existed for the benefit of the child and not for the benefit of the parent.20 but the majority decision went further than this. it also appeared to establish definitively that in the event of a clash between the views of a child factually competent to take his own decision 14 the concept was contained in s.85 children act 1975 and was defined to mean "all the rights and duties which by law the mother and father have in relation to a legitimate child and his property." is supra n.2. 16 re r (a minor) (wardship: medical treatment) [1992] 1 f.l.r.190 and re w (a minor) (consent to medical treatment) [1993] 1 f.l.r. 1. the phrase was first used by gillian douglas in "the retreat from gillick" (1992) 55 m.l.r. 569. 17 supra n. 2 at p.248. 18 ibid at p.238. 19 ibid at p.249. 20 ibid at p.235. 8s denning law journal and that of his parent the child's views should be given priority. lord scarman seemed particularly clear about this when he said: "the parental right yields to the child's right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision.,,21 the post-gillick era: the neglect of hewer v. bryant as we approach the twenty-first century we cannot say with confidence that we have put behind us the influence of the nineteenth. quite a number of legal developments over the decade or so since gillick suggest that there will continue to be an uneasy co-existence of the gathering independence of young people and the responsibility of their parents. the terminology has changed. we now confront much more openly the idea that children are persons capable of possessing "rights" and, far from asserting the "custody" or "rights" of parents, we now talk of "parental responsibility.'.22 yet the central issue with which lord denning got to grips thirty years ago is much the same today. how precisely can we acknowledge and respect the growing independence of children without denying what is indisputable that parental responsibility remains intact until those children reach majority? lord denning's opinion was that the level of parental control decreased inversely to the extent of the individual child's factual capacity. it dwindled. but an examination of leading decisions of the court of appeal and legislation introduced by governments of both complexion shows that there is considerable reluctance to accept what many thought to be a fundamental principle entrenched by gillick. let us begin with the court of appeal. in two major decisions, re r23 and re w24 the court has contrived to hold that while a "gillickcompetent" child can provide a valid consent to certain medical procedures, that same child has no equivalent right or capacity to refuse them. the intricacies of the arguments in these cases are beyond the 21 ibid at p.2s1. 22 the definition of "parental responsibility" is now contained in s.3(1) children act 1989 and is remarkably similar to the former definition of "parental rights and duties" (see supra n.14). it is defined to include "all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property." 23 see supra n.16. 24 ibid 86 the legacy of hewer v. bryant scope of the present discussion25 but, in the final analysis, the central argument which prevailed is not very far removed from the one which has already reared its ugly head several times in the course of this article. this is that while children may go on merrily accumulating independent capacities this does not terminate or detract from the ongoing responsibilities of parents specifically in this context to provide a consent which would protect the medical profession against a possible tortious action arising from unauthorised contact with a child. lord donaldson neatly skipped around what lord scarman had to say in gillick by holding that he had only really meant to say that parental powers were not determinative in the sense that the parent could not be said to have a veto over medical procedures. but this did not mean that the parent's concurrent right to provide a consent was obliterated by the acquisition of the child's capacity. either the competent child, or the parent, held a key which could unlock the door to the procedure concemed26 and either could provide the medical profession with a "flakjacket" against a possible tortious action.27 lord donaldson did not refer in either decision to the opinion of lord denning in hewer v. bryant.28 it is a pity that he did not do so since, as demonstrated above, it was the foundation of the majority view in gillick about the nature of parents' authority or responsibility. would lord denning really have allowed into english law the illogicality of conferring on children the right to consent but not the right to refuse? would he have been inspired by the prospect of a teenager being told: "it doesn't matter what you want. your parents want it and, in the end, that's all that counts"? i rather doubt it. some of the policies of the former conservative government and the present labour government are also difficult to reconcile with lord denning's notion of "dwindling" parental authority. take, for example, the education policy of the conservatives throughout their long period of office which was dominated by the notion of "parental choice." there was earlllegislation to entrench parental preferences regarding choice of schoo1.2 subsequent legislation increased parents' representation on governing bodies while abolishing the office of pupil governor.30 then 25 for a fuller discussion see andrew bainham, children: the modem law (2nd.ed., jordans, 1998) at pp.273-281. 26 the metaphor used in re r. supra n.16. 27 the metaphor used in re w, supra n.16, the keyllock metaphor being discarded by this time. 28 the only reference to hewer v. bryant in any of the judgments in either re r or re w was a ~assing reference to it by farquharson l.j. at [1992] 1 f.l.r. 190 at 206. 9 the education act 1980. 30 the education (no.2) act 1986. 87 denning law journal we had the "parents' charter" and publication of school "performance tables.,,3l perhaps most strikingly of all, at least in the context of this article, was the creation in 1993 of an absolute right for parents to withdraw their children from sex education classes except in so far as what is taught falls within the requirements of the national curriculum.32 this right of withdrawal is unqualified and exists alongside a similarly unrestricted right of withdrawal from religious education and acts of collective worship which originates from the nineteenth century.33 the arguments about the provision of sex education or religious education and worship in schools are complex and controversial and this is not the place to rehearse them.34 but what must be clear to everyone is that the former conservative government's view of the role of parents in education was very far removed from the idea of diminishing control. there is little in any of the education acts to support the notion that children have any independent rights despite the fact that they spend almost as much of their lives in school as they do in the family home. on the contrary, what we do find support for is the concept of absolute parental discretion, rejected in hewer v. bryant, which continues up to the age of majority at least as far as sex and religion are concerned.35 there is not so much as a hint that parental control "dwindles" or that children have independent views or interests. the policy of the labour government towards juvenile crime illustrates another approach to the interrelationship of children's capabilities and parents'responsibilities.36 in its own way it is equally at odds with the philosophy of hewer v. bryant. on the one hand, it does appear to be grounded in the notion of personal responsibility for crime on the part of juveniles themselves and this might be thought consistent with the idea of growing independence and autonomy. as the child gets older and achieves more capacity for decision-making so that child or young person should accept the greater measure of responsibility which goes with it. 37 3\ first issued by the then department of education and science in 1991. 32 the national curriculum in relation to sex education expressly does not include education about aids, illy and sexually transmitted diseases. (see now s.405 of the education act 1996, originally s.241 education act 1993). 33 the elementary education act 1870. 34 for more detailed treatment see n. harris, law and education: regulation. consumerism and the education system (sweet & maxwell, 1993), chapter 7 and bainham, supra n.25 chapter 16. 35 it is interesting to note, for example, that although the age of consent for sexual intercourse is sixteen, young people above that age may be denied sex education by parental withdrawal. 36 set out in its white paper, no more excuses: a new approach to tackling youth crime in england and wales (cm.3809) (the stationery office, 1997). 37 indeed the attitude of the last two governments towards juvenile crime has taken on an increasingly punitive, authoritarian aspect perhaps epitomised most by the introduction of 88 the legacy of hewer v. bryant having said that, the abolition of the doli incapax presumption in relation to children aged at least ten but under fourteen by the crime and disorder act 199838is hardly consistent with the gradual acquisition of legal capacity supported by both hewer v. bryant and gillick. children will now, in principle, be wholly criminally responsible on the sudden attainment ofthe age often. as tony smith has put it (commenting on the decision ofthe divisional court in c v. d.p.p.) "we now have a law which holds that a person is completely irresponsible on the day before his tenth birthday, and fully responsible as soon as the jelly and icecream have been cleared away the following day.,,39 the government in its white paper which preceded the 1998 legislation appeared to accept, in relation to juvenile crime, something very like what lord denning was talking about in 1969:40 "as they develop, children must bear an increasing responsibility for their actions, just as the responsibility of parents gradually declines but does not disappear as their children approach adulthood.,,41 it is when we tum to what has actually been done in the crime and disorder act that we can see the real thinking is one of dual responsibility for crime. children and parents are in essence conceptualised as jointly and severally responsible for the increase in juvenile crime which is seen as a matter of personal and family responsibility. thus, far from repealing conservative legislation which had made parents directly accountable for the crimes of their children through fines, the payment of compensation, costs and controversial bind-over powers42 the labour government has carried this policy further by the introduction of the new "parenting order.,,43 the order will be available in relation to parents of convicted young offenders or of children who are the subject of the new "anti-social custodial sentences for persistent young offenders with the creation of "secure training centres" by the criminal justice and public order act 1994. 38 s.34. 39 [1994] 3 w.l.r. 888 and a.t.h. smith "doli incapax under threat" (1994) cl.l. 426 at 427. the decision of the divisional court was subsequently reversed by the house of lords ([1995] 2 w.l.r. 383) which held that any change in the law was for parliament and not for the courts. 40 supra n.38. 41 ibid at para 4.1. 42 s.58 of the criminal justice act 1991. 43 ss.8-10 of the crime and disorder act 1998. 89 denmnglawjournal behaviour order, sex offender order or child safety order" as well as those parents convicted of offences relating to school attendance.44 it will require them to attend counselling or guidance sessions and the order may include other requirements relating to such matters as ensuring the child's attendance at school or that he is home by a certain time each night. there are strong civil libertarian objections to these powers involving as they do substantial state intrusion into the way in which families conduct themselves. there is doubt also about whether they are in compliance with the united kingdom's international obligations. but in the context of the present discussion the key point is that they rest on the dubious assumption that parents remain fully in control of their minor children and can be brought to book for their transgressions not much evidence here of "dwindling" parental control. the new law makes little or no allowance for the potential conflict of interest between parents and children and does not acknowledge the reality that many teenagers are infact beyond the control of their parents. it should moreover be pointed out that the extent to which a parent might lawfully resort to measures of physical restraint to control a wayward child is now open to considerable doubt and the older the child, the more legally suspect such disciplinary measures are likely to be.45 conclusion there remain very many uncertainties and difficulties for the law in striking an appropriate balance between children's gradual progression towards adulthood and the contemporaneous, ongoing responsibility which attaches to parents. hewer v. bryant was without question an important landmark in the attempt to achieve this accommodation. lord denning's simple, yet memorable, solution to this problem that as the 44 it should be noted that it is the parent and not the child who is legally liable in relation to the child's non-attendance at school see s.7 education act 1996. 45 a parent may in principle be liable for the false imprisonment of the child where the restraint of the child is "for such a period or in such circumstances as to take it out of the realm of reasonable parental discipline" (see r v. rahman (1985) 81 cr.app.r. 349). and, increasingly, the parental right to administer corporal punishment is being called into question and challenged under the european convention on human rights see a. v. united kingdom (human rights: punishment of child) [1998] 2 f.l.r. 959. in this case the stepfather of a had beaten him severely on several occasions with a garden cane. he was acquitted of assault having successfully raised the defence of "reasonable chastisement." the european court of human rights subsequently found the united kingdom to be in breach of article 3 of the convention in allowing the defence to be raised in circumstances such as this, which amounted to "inhuman or degrading treatment or punishment." at the time of writing the government is engaged in a consultation exercise about the appropriate limits of parental discipline. 90 the legacy of hewer v. bryant one grows the other dwindles revealed, characteristically for him, an insight which was perhaps ahead of the times. it was certainly a good deal more enlightened than much of the clumsiness which has followed in the intervening thirty years. the court of appeal has found itself acknowledging rights for adolescents in some areas but refusing them in others for arguably no better reason than a preoccupation with protecting the medical profession against law suits. the conservative administrations of margaret thatcher and john major wholly failed to give effect, in their education policy, to the growing acceptance in society of the notion of children's rights and instead supported an absolutist view of parental control. and labour too, to the surprise of many, appears to favour an approach to tackling youth crime which fails, at one and the same time, to accept that the personal responsibility of juveniles for crime should be a gradual process dependent on age and maturity and that parental responsibility should correspondingly decline. perhaps what all this suggests is that whatever else we allow to "dwindle" in the coming years it ought not to be the influence of lord denning's common sense in hewer v. bryant. 91 morality, amorality and equity peter sparkes* should equity seek to enforce its moral perceptions? or is an amoral framework of equitable rules preferable? these questions are presented by the widespread adoption of extra-marital cohabitation. answers will be sought by reviewing the constructive trust jurisdiction. sexual propriety and clean hands it is obvious from its name that equity is closely related to the morallaw.\ equitable remedies are distinguished from those of the common law by their underlying ethical quality.2 the question to be considered is whether equitable supervision should extend in cohabitation cases to a consideration of the moral fabric of the relationship which gives rise to the application for equitable relief. for immediate purposes, it will be assumed that cohabitation outside marriage would be viewed by equity as immoral.3 though rooted in principles of conscience, equity is far from being simply a system offairness. the moral code adopted is rigid and uneven. in certain areas, the morality of the chancellor was higher than the morality of ordinary traders. dicey cites the examples of trusts and agent's duties to his principal,4 and he might have added the proscription of usury. equally the ideas entertained in chancery were often far below the highest standards of enlightened public opinion. professor wasserstrom5 distinguished morality and sexual morality, and this distinction does appear particularly apposite in this connection. he cited homosexuality as, at the time he was writing in 1971, the paradigm of behaviour that was sexually immoral, but not really contrary to general standards of morality. he argued that equity is not concerned with immorality in the second sense. • solicitor, lecturer in law, university of southampton. 1. a. l. goodhart, english law and the moral law (1953), p.124. 2. spry, equitable remedies 3rd ed., p.1. 3. despite the dictum to the contrary in stephens v. avery [1988] ch. 449, 453g. 4. dicey, law and public opinion in britain 2nd ed. (1914), p.368. 5. morality and the law (1971), p.6. on the relationship of law and morality more generally, see lord hailsham, "the law, politics and morality", [1988] denning lj 59. 91 http://www.ingentaconnect.com/content/external-references?article=0269-1922(1988)0l.59[aid=7381749] http://www.ingentaconnect.com/content/external-references?article=0269-1922(1988)0l.59[aid=7381749] the denning law journal equity has not often been called upon to rule upon sexual morality as such. the tudor court of star chamber6 enforced general morality in the so-called "criminal equity" but, with the abolition of that court and the disrepute attaching to its jurisdiction, equity was prevented from acquiring a generic jurisdiction in morality itself. day-to-day matters of morality were dealt with by the ecclesiastical courts7 rather than by chancery. after the abolition of the star chamber, the court of king's bench asserted a right of custodianship of the public morals.8 chancery certainly refused to uphold trusts for immoral purposes,9 but in so doing it merely reiterated the lead of the common law in contractual matters. "the rule invalidating illegal trusts is, at bottom not peculiar to equity."lo there were, however, some exceptional cases in which equity gave relief against an illegal contract when the common law hesitated. goff &jones cite as examples marriage brokage contracts and agreements between spouses for future separation. i i lord eldon indicated that the clean hands doctrine is not a bar to such relief.]2 in other areas, in which rules of morality might have been laid down, equity was content to adopt a neutral stance. equity, of course, requires its litigants to approach with clean hands.13 but this maxim must be applied with caution, for in many areas its application is narrow and technical. equity drew back from equating unclean hands and immorality. its jurisdiction founded on moral principle is limited to the application of abstract principles of justice to cases within its specific jurisdictions. so the application of the unclean hands maxim today is decidedly restrictive. "by 'improper' is meant legal, and not merely moral, impropriety."'4 not any conduct which could be stigmatised as wrong leads to the denial of equitable relief. though the wrongdoing that can be called in aid of the maxim has been described as "depravity",'s which might well comprehend almost any extra-marital sexual connection, it is in fact only depravity in a limited sense that suffices. as eyre cb explained: "if this can be founded on any principle, it must be, that a man must come 6. shaw v. d.p.p. (1962) a.c. 220,272-3 (lord reid); knuller v. d.p.p. (1973) a.c. 435, 471 (lord diplock); holdsworth, history of english law vol. v, p.213. 7. before the bawdy court ed. paul hain (1972), especially the historical introduction. 8. shaw v. d.p.p. (1962) a.c. 220,231 (ashworth j. forthe court of criminal appeal), 268 (viscount simonds). 9. re pinion (1965) ch. 85, 105f,per harman lj (school for prostitutes); thrupp v. collett (1858) 26 beav. 125 (trust for purchasing discharge of poachers). 10. z. chafee, (1949) 47 mich. law rev. 877, 885; see sykes v. beadon (1879) ii ch. d. 170, 196. 11. the law of restitution 3rd ed. (1986), p.419; st. john v. st. john (1803-5) lives. 526, especially at pp.535-6. 12. the vauxhall bridge co. v. the earl of spencer (1821) jac. 64, 67. 13. hence the possibility that conduct within the relationship may be relevant to claims based in trust law; conduct is generally irrelevant in the modem family jurisdiction. 14.meagher gummow & lehane, equity doctrines and remedies 2nd ed., p.76 citing dering v. earl of winchelsea (1787) i cox eq. cas. 318. 15. snell, pn'nciples of equity 25th ed. by p. v. baker & pst. j. langan, p.33. 92 morality. amorality and equity into a court of equity with clean hands, but when this is said, it does not mean a general depravity; it must have an immediate and necessary relation to the equity sued for; it must be a depravity in a legal as well as in a moral sense."16 the adoption of the clean hands maxim in all its width leads to manifest injustice, as is shown by the experience in america in which the english wisdom was, at least in the past, lost. it is particularly unfortunate that american courts have applied the maxim in divorce suits, where it is inappropriate.'7 thus the maxim has been applied to a state trooper's pre-marital fornication so as to debar him from a decree of nullity. 18 that the english courts have adopted a narrower line can be illustrated by reference to argyll v. argyll. 19 the duke of argyll was about to publish details of his relationship with his third wife, defending his breach of confidence by arguing that the former duchess did not have clean hands by reason of her adultery. ungoedthomas j refused to apply the unclean hands principle.20 the wife's adultery undermined the confidential relationship for the future, but not so as to betray the confidences of the past. argyll demonstrates that sexual immorality will not automatically debar the plaintiff the right to its relief. only immorality that is directly related to the equitable cause of action has to be weighed in the balance. trusts of quasi-matrimonial homes pettitt v. pettitt21 and gissing v. gissing22 established that a claim to an interest in a matrimonial or quasi-matrimonial home should be a claim to a beneficial interest under a trust.23 allowing an action in contract would have removed the unfortunate proprietary effect against third parties. however, this expansion was barred by the doctrine derived from balfour v. balfour,24 which implied that a cohabitation agreement was unenforceable because the parties were presumed not 16. dering v. earl of winchelsea (1787) i cox eq. cas. 318, 319-20. 17. z. chafee, supra n. 10, 877, 1065 at pp.1083-90. 18. donovan v. donovan 263 n.y.s. 336 (1933). 19. [1967] ch. 302. 20. at pp.332a-337b. 21. [1970] a.c. 777. 22. [1971] a.c. 886. 23. gissing v. gissing [1971j a.c. 886, 896e (lord reid), 900b (viscount dilhome) and 904h (lord diplock). in pettitt v. pettitt [1970] a.c. 777, 795g lord reid rejected the possibility of a claim in unjust enrichment because that would give only a money claim. 24. [1919j 2 k.b. 571. support for the application forthis principle can be found in the speeches of lords morris of borth-y-gest and hodson in pettitt v. pettitt [1970ja.c. 777, at pp.804, 806. see also cowcherv. cowcher [1972j i w.l.r. 425, 436d and burns v. burns [1984] ch. 317, 335d per may lj. 93 the denning law journal to have intended to create legally binding relations.25 the insistence on trust law analysis means that the courts have not considered the application to cohabitation agreements of the principle prohibiting the enforcement of a contract founded upon an immoral consideration.26 an application for equitable relief arising from an immoral relationship might equally be tainted with illegality. in order to assess the importance of the possible immorality argument it is proposed to examine the basis of the jurisdiction on which equity determines the beneficial interests in a quasi-matrimonial home. it makes little difference whether the legal title is vested in one name or in joint names.27 a conveyance to joint names raises a presumption that both parties are to enjoy a beneficial entitlement.28 whether or not the legal title to the home is vested in both partners, there are essentially three cases which call for discussion. these claims, to be examined in turn, are claims founded upon an express written declaration of trust, upon a financial contribution giving rise to a resulting trust or upon an implied agreement leading to the imposition of a constructive trust.29 1. expressly declared trust a claim for equitable relief arising under an expressly declared trust is not based upon the nature of the relationship between the legal owner and the beneficiary, but upon a clear fact that operates on the abstract calculus of equity to create rights in the property. 30 that fact is a signed declaration of trust complying with section 53 of the law of property act 1925. the written document stands by itself to establish an equitable interest in the property. the reasons for the execution of the document do not affect its validity. in ayerst v. jenkins31 it was held that chancery would not set aside a bond 25. though this was not seen as a problem in tannerv. tanner (l975j i w.l.r. 1346; in horrocks v. forray (1976] i w.l.r. 230, scarman lj (at pp.239f-240a) distinguished cases in which the relationship had ended (where the parties were at arm's length) and those in which it continued. a.a.s. zuckerman argues for much reduced role in "formality and the family reform and status quo", (1980) 96 l.q.r. 248; see also s. hedley, (1985) 5 ox/ordjo.l.s. 391. intention to contract is not viewed as a problem in america: marvin v. marvin (1976) 134cal. reptr 815, per tobriner j(on appeal 122cal. app. 3rd 871). the question of the validity of a cohabitation contract was left open in the most recent english decision: layton v. martin (l986j 2 f.l.r. 227. 26. up/illy. wright (l911j i k.b. 506. traces of this attitude can be found as late as 1959 in diwellv. fames (l959j 2 all e.r. 379; s. parker, cohabitees 2nd ed., pp.124-5 says that it can be assumed that these dicta have been overtaken by events. 27. for examples of joint-names cases, see bemardv.josephs (l982j ch. 391 and walkerv.hall(1984) 14 fam. law 21. 28. the presumption is rebuttable as in gram v. edwards [1986jch. 638 (brother enjoyed no beneficial interest); contrast maharaj v. chand (l986j a.c. 898 (conveyance to one alone). 29. per fox lj in bums v. burns (l984j ch. 317, 326f. 30. a written declaration is conclusive in the absence of fraud or mistake: leake v. bruzzi (i 974j i w.l.r. 1528; goodman v. gallant [1986] fam. 106. 31. (1873) l.r. 16 eq. 275. see also howell v. price (1855) 25 l.t. o.s. 194 (annuity prevailed over immoral consideration not appearing on the face of the deed); re wootton (1904) 21 t.l.r. 89 (deed founded on past cohabitation not void even though it contemplated future cohabitation); robinson v. gee (1749) i ves. sen 251 (lord hardwick lc was rightly scandalised by a purported assignment of a wife, one mrs hanks, which was held to be void). 94 morality, amorality and equity founded upon an immoral consideration which did not appear on the face of the bond. an apparently innocuous bond was enforceable even though it was in fact to provide for the grantor's deceased wife's sister, with whom he was cohabiting "under the colour of a fictitious marriage". the same principle should apply to a modern declaration of trust. the simple fact that a trust is declared by reason of a relationship that could be branded as immoral is no cause for disputing the validity of the trust.32 2. resulting trust from contribution the second case to take is the resulting trust. an implied trust may be resulting or constructive. a leading equity text says that "some of the recent cases treat the two kinds of trust as almost synonymous."33 in many cases, it has only been important to establish that rights arise under a trust that does not require writing. for our purposes it is important to distinguish these two forms of trust. a resulting trust34 is taken to arise where the beneficial interest is created through a direct35 financial contribution. there is therefore little scope for a moral examination of the underlying relationship by the court of equity. 36the main need to examine the surrounding circumstances will be to see whether a contribution or a loan is intendedy further, the nature of the relationship may be relevant on conventional theory to determine whether the presumption of advancement applies.38 the bare fact which then founds the equitable jurisdiction is a financial contribution to the purchase. the nature of the relationship which caused the contribution to be made is not pertinent to the ascertainment of the consequences of the contribution. thus a case such as williams & glyn's bank ltd. v. boland39 is not a husband and wife case as such, but a case between a legal estate owner and a 32. c/. the analogy of trusts for illegitimate children: p.h. pettit, equity and the law of trusts 6th ed., pp.179-81. at one time a gift by deed for future illegitimate children was void: occ/eston v. fulla/lyve (1874) l.r. 9 ch. app. 147. recent decisions are less strict: re hyde [1932] i ch. 95. these cases are now reversed by statute: family law reform act 1987,s.19 replacing s.15(7) family law reform act 1969. 33. hanbury & maudsley, modern equity 13th ed. (j.e. martin), p.69; see also p.281. for criticism of the analytical laxity implied, see frank bates, (1976) 92 l.q.r. 489. the distinction is fully discussed by m.j. dixon, "co-ownership trusts in the united kingdom the denning legacy" (1988] denning lj 27. 34. it is possible that there may be an underlying intention to create a constructive trust, as in re densham [1975] ] w.l.r. 1519 and passee v. passee [1988] 1 f.l.r. 263. 35. for a case in which indirect contributions gave rise to a resulting trust, see howard v.james (1989) 19 fam. law 231. 36. though a fraudulent intention would bar equitable relief: sekhon v. alissa (1989] 2 f.l.r. 94, 98a-c. 37. good examples are sekhon v. alissa [1989] 2 f.l.r. 94 and spence v. brown (1988) 18fam. law 291. 38. megarry j in crane v. davis times law rep. 13 may, 1971decided that the presumption did not apply between a man and his "mistress"; the point was left open in cantorv.fox(1975) 239 e.g. 121: see j,g, miller, family property & financial prlyvision 2nd ed., pp.26-27. 39. [1981] a.c. 487. 95 the denning law journal contributor, so that the same principles would apply if the roles were reversed, or if the parties were unmarried, or if there were some other connection between them;40 mother and son,41 aunt and niece,42 yuppies sharing, or sleeping together, or homosexuals. whatever the relationship should make no odds; it is the pull of money that counts. 3. constructive trusts pure resulting trusts, as defined above, are uncommon. much more common are constructive trusts arising between the parties to an extra-marital relationship.43 many cases involve variations after the initial purchase, which must presumably operate by way of constructive trust. 44the ultimate object of enquiry is the relevance of moral conduct in the exercise of this equitable jurisdiction. it is first necessary to consider the circumstances in which the jurisdiction can be exercised. the modern tendency is to discount the very wide jurisdiction proposed at times by lord denning mr45 which amounted to an assertion that a constructive trust could be used as a redistributive remedy. the argument for that wide jurisdiction, derived from the speech of lord diplock in the house of lords in gissing v. gissing, 46was in truth inconsistent with the actual decision in that case. a cohabitee does not acquire an interest in his or her partner's house simply because they live together for a long period of time, or because the claimant looks after the children of the relationship, or contributes to the general living expenses of the household.47 no constructive trust is to be implied simply because a woman goes to live in a man's house, for claiming a share of the property is not the only reason for cohabitation. the essential unifying concept of the modern jurisdiction, identified by browne-wilkinson v-c in grant v. edwards,48 is that when a property is purchased there is a common intention that both partners to the relationship should be entitled to a defined beneficial interest. a constructive trust arises when the claimant has acted to his or her detriment in reliance upon that common 40. at p.502f, per lord wilberforce. 41. bull v. bull [1955] 1 q.b. 234; sekhon v. alissa [1989] 2 f.l.r. 94 (mother and daughter). 42. re sharpe [1980] 1 w.l.r. 219 (a loan case). 43. the jurisdiction was said to be founded upon commonsense by lord upjohn in pettiu v. peuitt [1970] a.c. 777, 816g. 44. see hussey v. palmer [1972] 1 w.l.r. 744 (paying for extension same as paying part of price); bernardsv.josephs [1982] ch. 391, 404e griffiths lj; fox lj in burns v. burns (1984] ch. 317, 3270. 45. e.g., in hussey v. palmer [1972] 1 w.l.r. 1286, 1290a;eves v. eves [1975] 1 w.l.r. 1338. 46. [1971] a.c. 886. 47. burns v. burns [1984] ch. 317. a claim to a constructive trust must allege a contribution to the purchase ofa specific asset: layron v. martin [1986] 2 f.l.r. 227. 48. [1986] ch. 638, 654f-h. 96 moraliti", amoraliti" and equlti" intention.49 usually detriment is proved, or at least evidenced, by a financial contribution. cases where no financial contribution are made, but where nevertheless sufficient detriment is shown, are rarer. 50financial contribution is an objective fact, in which moral judgment has no part to play.51 the essential element for our purposes, in which moral judgment might be relevant, is the proof of the common intention, which founds the basis for the implication of a trust. it is now possible to abstract a number of related situations in which an event occurs on acquisition of the property which is inherently capable, if supported by appropriate later conduct, to found a claim for the imposition of a constructive trust. they are conveniently summarised by mustill lj in grant v. edwards: "for present purposes, the event happening on acquisition may take one of the following shapes. (a) an express bargain whereby the proprietor promises the claimant an interest in the property, in return for an explicit undertaking by the claimant to act in a certain way. (b) an express but incomplete bargain whereby the proprietor promises the claimant an interest in the property, on the basis that the claimant will do something in return. the parties do not themselves make explicit what the claimant is to do. the court therefore has to complete the bargain for them by means of implication, when it comes to decide whether the proprietor's promise has been matched by conduct falling within whatever undertaking the claimant must be taken to have given sub silentio. (c) an explicit promise by the proprietor that the claimant will have an interest in the property, unaccompanied by any express or tacit agreement as to a quid pro quo. (d) a common intention, not made explicit, to the effect that the claimant will have an interest in the property, if she subsequently acts in a particular way."52 it may become apparent to the court of equity asked to enforce the contractual arrangement that an irregular relationship is implied. a moral examination of the basis of the relationship is much more likely in cases falling within heads (b) and (d) of mustill lj's analysis than heads (a) and (c). mustill lj postulates that the 49. detriment is necessary to establish a resulting, constructive or implied trust; otherwise an informal declaration is void under s.53(1 )(b), law of property act 1925: midland bank p.l. c. v. dobson [1986] i f .l.r. 171. an authority for imposing a constructive trust without detriment is lord denning mr's judgment in eves v. eves [1975] i w.lr. 1338; the case is better supported on the grounds adopted by browne lj and brightman j. 50. examples are gram v. edwards [1986] ch. 638 and eves v. eves [1975] i w.lr. 1338. 51. financial contributions are also relevant as evidence of the parties intentions if wholly inferred, as corroboration of a direct intention, and in quantifying the beneficial interest: per browne-wilkinson v-c in gram v. edwards [1986] ch. 638, 654b-c. 52. [1986] ch. 638, 652a-c (dealing with a case in which the claimant is female). for discussion see a.j. oakley, constructive trusrs2nd ed., pp.41-3and p.h. pettit, equity and the law oftrusts6thed., chs. 8 and 10. 97 the denning law journal parties have not made explicit the precise terms of their arrangement, so that the common intention has to be implied by equity completing the presumed bargain between the parties. effectively the courts are ascertaining the arrangement that might be anticipated to be reached by a couple in the position of the parties· to the action. proof of the relationship is an essential part of the proof of the claim to a beneficial interest. the common feature of all mustill lj's heads of constructive trust53is that they are founded upon an agreement, whether express or implied, that a share is to be created. if equity could form a moral judgment as to a contract, it could also adopt a moral judgment in applying the constructive trust jurisdiction. therefore, constructive trusts arising from house purchases do give scope for moral examination of the background to the relationship. the extent to which the courts have adopted a moral tone must now be considered. the stereotype of marriage the constructive trust jurisdiction originated with claims under the married women's property act 1882, and has been gradually extended to cases involving unmarried couples. this history explains the tendency, noted by freeman,54 to append legal consequences only to relationships that conform to the stereotype of a conventional marriage. freeman was discussing the unrivalled influence of lord denning in this area of the new equity. the former master of the rolls would probably have regarded the intervention of equity as acceptable only where the relationship conformed, except in formality, to marriage. 55 looser forms of association outside marriage or sexual variants of it would not have attracted his intervention. the moral structure of a relationship may be relevant in the eyes of equity. consideration must start with ulrich v. ulrich. 56an engaged couple had bought a house, both contributing, though the conveyance was taken into the man's name alone. mter the marriage had occurred, the court of appeal were called to adjudicate upon the ownership of the matrimonial home. it was held that the wife was entitled to an equal interest on the facts of the case. lord denning mr said that the effect of contributions before a marriage was the same as after a marriage, provided that the marriage took place.57he asserted that the position would have 53. [1986] ch. 638, 652a-c. 54. in jowell & mcauslan (eds.), lord denning the law and the judge, p.l52. 55. in hoholv. hohol [1981] v.r. 221 there is some evidence that strict principles of property law are not applicable between cohabitees; see robert l. stenger, (i 989) 27 j. fam law 373 for a compamtive survey. 56. [1968] i w.l.r. 180 (c.a.), subsequently disapproved. 57. at p.185g-h. 98 morali1y, amorali1y and equl1y been different if the marriage had never taken place.58 however, lord denning was applying the view that matrimonial property formed a family asset, so that equal ownership could usually be implied. this view was emphatically rejected by the house of lords in pettitt v. pettitt59 and in gissing v. gissing.60 hence lord denning's dictum that there is a substantial difference between the position if the parties subsequently married and if they did not has to be treated with great caution.61 so too must his opinion that a couple who bought a house intending to marry but who subsequently did not do so should be treated much as two strangers.62 ulrich reveals the original opinion of lord denning that there was a substantial difference between the affairs of married and unmarried couples. this view was quickly and decisively rejected by the house of lords. both of the leading house of lords decisions, those in pettitt v. pettitt63 and in gissing v. gissing,64 involved married couples. in both cases ordinary principles of equity were applied to married couples. viscount dilhome in gissing deprecated "the error of supposing that the legal principles applicable to the determination of the interests of spouses are different from those of general application in determining claims by one person to a beneficial interest in property in which the legal estate is vested in another. "65 the extension of the constructive trust therefore started with licit relationships. in relation to matrimonial homes this jurisdiction was supplemented by the courts' power to redistribute family property according to principles offairness on divorce.66 in relation to cohabitation outside marriage the equitable jurisdiction, based upon established property rights, has stood alone and therefore assumed an enhanced significance.67 a claimant would acquire no particular rights through cohabitation, but equally he or she would not lose any equitable rights which he or she had acquired simply because the couple were cohabiting out of marriage. such 58. the purchase arrangement could be seen as an ante-nuptial settlement within s.17, matrimonial causes act 1965(now s.24, matrimonial causes act 1973).the case led to specific statutory provision for the property of engaged couples: law reform (miscellaneous provisions) act 1970, s.2; the legislarion does not confer a general power to adjust the rights of engaged couples: mossop v. mossop [1988] 2 w.l.r. 1255. query whether engagement is now a general precursor of marriage. 59. [1970) a.c. 777. 60. [1971) a.c. 886. 61. cowcher v. cowcher [1972) 1 w.l.r. 425,429g (bagnall j). 62. i.e., that there would probably be a resulting trust for them according to their contributions. in diwell v. fames [1959]2 all e.r. 379 the majority of a differently constituted court of appeal had held that a man and his "mistress" should be treated as strangers and not as husband and wife. the reason given was the absence of legal liability to a cohabitee. again the underlying assumption was that matrimonial property formed family assets. 63. [1970) a.c. 777. 64. [1971) a.c. 886. 65. [1971] a.c. 886, 899g. see also lord diplock at p.905c, who analysed the case in the neutral ]anguageof"trustee" and "cestui que trust"; bumsv. bums [1984]ch. 3]7, 325c(waller lj); granrv. edwards [1986] ch. 638, 651g (mustill lj). 66. matrimonial causes act 1973, part ii. 67. where there are children of the relationship, a wide jurisdiction is conferred by s.12, family law reform act 1987; this provision operates from april 1, 1989: 1989 s.1. no. 382. 99 the denning law journal a cohabitee "should be treated in exactly the same way as any other tenant in common in relation to the joint property."68 apart from cases where specific statutory jurisdictions apply only to married couples, general equitable principles are to be applied.69 logically, as ordinary equitable principles are applied by analogy to marital property disputes, there is no call for restricting the application of those techniques to particular relationships. however, the modern case-law can be seen as an extension from marital disputes to quasi-marital disputes. that extension has been prompted by the tendency to regard marriage as a mere formality,7° so that those who are effectively married should be treated in the same way as if married.7! the current state of the authorities reflects the tension between these two fundamentally irreconcilable approaches. the starting point for exploration post-gissing is cooke v. head in which lord denning mr expressed his opinion that the same principles should be applied to "husband and wife, to engaged couples, and to man and mistress, and maybe to other relationships too."72this theme was taken up in bernard v. josephs73 where griffiths lj accepted that the same principles should operate whether the couple were married or unmarried, but added an important rider. in extra-marital cases the nature of the relationship is a very important factor in determining what inferences should be drawn from the way that the parties have conducted their affairs.74griffiths lj suggested that the commitment to the relationship is crucial. if a couple act as married, though not bothering to go through the ceremony of marriage, then the courts will treat them as de facto married. if however they choose not to marry, to retain independence, then according to griffiths lj different conclusions have to be drawn from their conduct. "one cannot make the blithe assumption that all couples living together are no different from a married couple. "75 68. dennis v. macdonald [1981] i w.l.r. 810, 814b per purchas j; for a recent reaffirmation of this principle see, per mustill lj, grant v. edwards [1986] ch. 638, 651f. 69. the rules about housekeeping allowances in married women's property act 1964,s.1 cannot apply between an unmarried couple: bromley's family law 7th ed. (p.v. bromley and n. v. lowe), p.525. s.37, matrimonial proceedings and property act 1970relating to improvements is also not applicable to cohabitees unless engaged, but the position is clouded by the fact that the section is stated to be declaratory of the existing law: j,g. miller, financial property and financial provision 2nd ed., p.4l. 70. see sir george baker p (strongly disapproving!) in campbellv. campbell [1976] fam. 347, 352e. 71. the development of the jurisdiction over extra-marital property is naturally well-travelled territory. particularly helpful are the discussions by m.d.a. freeman & cm. lyon, cohabilation without marriage (1983), pp.88-102, s.m. cretney principles of family law 4th ed., pp.660-68, and robert l. stenger, "cohabitants and constructive trusts comparative approaches", (i989) 27j. fam. law 373. 72. [1972] i w.l.r. 518, 520g. karminski lj at p.522 is to like effect. on quantification of the interest, lord denning also equated a married and an unmarried woman (refetred to as "a mistress") at p.52ih. 73. [1982] ch. 391. 74. [1982] ch. 391, 402e-f; also kerr lj at p.408d. 75. at p.403b-c 100 moraliti', amoraliti' and equity the case reflects a most marked and sharp divide in moral perspective. lord denning referred to the woman as a mistress and grudgingly extended protection to a woman within an illicit relationship.76 he said that the courts should extend the principles applied to married couples to "couples living together (as if married)."77 it is by no means clear that this extends beyond a marriage conforming to a stereotype of marriage. griffiths lj's approach enabled couples to be free to cohabit without commitment without attracting the moral stigma of the court.78 it is submitted that griffiths lj's approach reflects better modern society. the modern understanding is best summarised in this passage from the opinion of fox lj in gordon v. douce: "the court may in drawing inferences as to the intentions of the parties, be influenced by the relationship. what might be sensible between husband and wife might not be so between two brothers, but in general the principles applicable must be the same whatever the relationship."79 in this and other cases in which the issue has arisen for decision the couple were cohabiting as if married. it remains to be seen whether doctrinal orthodoxy will be upheld in less obvious cases. if a couple drift into a relationship, it is unlikely that they will define the basis of their relationship with precision.80 often it will be "undetermined and indeterminable".81 the courts will usually have to construct an implied agreement from evidence as to the course of the relationship. the quality of the relationship is relevant when drawing inferences from conduct. as the nature of the relationship is an inherent part of the proof of the cause of action, there is the future possibility, in a different social climate, that the courts might express a judgment as to the desirability of the form of relationship that exists between the litigants. 76. observing that the institution of marriage was being eroded: [1982] ch. 391, 396g. as jonathan montgomery noted in "back to the future quantifying the cohabitee's share", (1988) 14fam. law 72,73, lord denning's view of justice was predicated on an assumption of women's dependency; cf. wachtel v. wachtel [1973] fam. 72. 77. the difficulty is that many couples are unmarried by choice or through a rejection of the institution of marriage: brenda m. hoggett and david s. pearl, the family, law and society cases and materials 2nd ed., p.284. surely such considerations should make no difference to trust law principles? 78. see also may lj in burns v. burns [1984] ch. 317, 333b-c. 79. [1983] i w.l.r. 563, 565h-566a. the apparent divergence between married couples and unmarried couples as to the date of assessing the beneficial interest has been removed by the decision in turton v. turton [1988] ch. 542; kerr lj said at p.554f that hall v. hall (1982) 3 f.l.r. 739 (which appeared to justify a divergence) was "pervaded by what is now recognised to be an untenable approach of differentiating between married and unmarried couples otherwise than on the basis of statutory provision. " 80. charles harpum, adjusting property rights between unmam'ed cohabitees, (1982) 2 oxford.jo.l. s. 277, 277. 81. per lord denning mr in bernard v. josephs [1982] ch. 391, 400b, speaking of whether a couple were "engaged" within the law reform (miscellaneous provisions) act 1970, s.2; see now mossop v. mossop [1988] 2 w.l.r. 1255. 101 the denning law journal this exploration has shown that the courts have come to accept the logic of lord diplock's analysis in gissing v. gissing82 that the constructive trust jurisdiction is to be applied without recourse to moral judgment. this has great significance for variant relationships, for exam}'le those between homosexual partners. variant relationships where the relationship conforms to marriage in all but formality, it is clear that the constructive trust jurisdiction may be invoked. there is scope for a divergence of opinion, and so of result, where the parties have some other relationship. the court has to deduce from the nature of the relationship the appropriate inferences as to the intentions of the parties. normal expectations as to property ownership have to be deduced within a particular kind of relationship. subtle variations of circumstances whether the couple intend in the future to marry when free or they simply begin to live together without a thought to the future may then lead to variant results.83 the nature of the relationship is inevitably brought into the forum of public debate. the tools of legal analysis used to regulate extra-marital cohabitation implied contracts, constructive trusts and the like could be used for other variant forms of relationship looser in their commitment or variant in their sexual orientation.84 they are amoral in character, so that they could be applied to a relationship whether the court approved of or disapproved of or was neutral in relation to it. as carol bruch has noted of the american experience: "[t]here is little in the legal or economic rationales ... that restricts their use to the monogamous heterosexual unit. it is true that in the context of homosexual or group living arrangements implied agreements may be somewhat less susceptible of proof, and in many states public policy may remain a defense to enforcement of established agreements. beyond such qualifications, however, the arguments that follow apply."85 ms bruch recognises the possibility of immorality arguments being raised. the court might stigmatise other, more outre, relationships as immoral and so refuse to sanction the enforcement of property rights arising from it. the current moral dislocation presents the difficulty of making ethical judgments if no moral consensus is to be found in society. it cannot however be assumed that the tolerance implicit in cases such as stephens v. avery86 will hold good in the future. 82. [1971) a.c. 886, 905d-906b. 83. e.g., whether the couple are divorcing previous spouses as in bernard v. josephs [1982] ch. 391 or where there are no marriage prospects as in tanner v. tanner [1975] 1 w.l.r. 1346. 84. ruth l. deech, (1980) 29 i.c.l. q. 480,485. 85. (1976) 10 fam.l.q. 101,106. 86. [1988] ch. 449 (lesbianism); contrast glyn v. weslon feature film co. [1916] 1 ch. 261 (adultery). 102 morality, amorality and equity in these circumstances it does seem quite possible that public policy issues might be pleaded and taken into account by the courts. there is no english authority in which a dispute between homosexuals has had to be adjudicated.87 chancery has available the intellectual apparatus, in the shape of the 'clean hands' doctrine, to withhold its sanction from applicants of whom it does not approve. it might well form a judgment, say, that homosexual unions were contrary to public policy and so that applicants who came to court to allege such a relationship should be denied access to equitable remedies. it is suggested, however, that equity should not introduce an element of moral guardianship into the constructive trust jurisdiction. the doctrine should be based upon abstract principles of equity,88so that an amoral approach to property disputes is adopted. it is possible to apply the terminology of trust putative trustee and putative cestui que trust impartially. happily equity is based upon abstract moral perceptions, and not upon merit, and those equitable considerations can be applied impartially to litigants irrespective of their race, their beliefs, or their sexual propensities. conclusion the constructive trust jurisdiction has grown organically from marital to extramarital relationships. hence there was a tendency to support only relationships that conformed, except in formality, to the pattern of monogamous marriage. however, the tools of equitable analysis are of themselves amoral in character. the logic of the leading statement in gissing v. gissing was that the equitable jurisdiction should be founded on abstract conceptions of justice, rather than a narrow vision of sexual morality. this logic appears now to be accepted in the court of appeal. however, the courts retain a residual jurisdiction to deny the use of legal sanctions to enforce a trust that is contra bonos mores. the chancery division has recently refused to rule on matters of sexual morality in an action for breach of confidence.89 the unhappy possibility remains that, if the moral tide changes, public policy arguments may be available in future cases concerning quasimatrimonial homes. 87. see a dictum by glass ja in allen v. snyder [1977] 2 n.s.w.l.r. 685, 689c supporting the application of the same principles to any heterosexual or homosexual relationship. 88. but cj. the parallel presumption of advancement: snell, principles of equity 28th ed. (1982), p.183 approved by sir f. lawton in mossop v. mossop [1988] 2 w.l.r. 1255, 1260h. 89. stephens v. avery [1988] ch. 449. 103 "scholars, students and sanctions" dismissal and discipline in the modern university" michael j. beloff q.c. •• theme i want to explore the extent to which the law controls the powers of academic institutions to expel their senior and junior members; and to see what lessons can be drawn by the academic institutions themselves to protect themselves against, if not litigation itself, at least litigation in which they are the unsuccessful . defendants. for universities like other domestic or quasi-domestic institutions (the controlling bodies of national sports being, in my professional experience another notorious example) have been slow to realise that the wielding of arbitrary power, which has characterised their behaviour in the case of.oxford and cambridge and their colleges for several centuries is no longer compatible with the development of natural justice and renders them vulnerable to challenge in the new rights based culture of our times. it is by no means inconceivable that a university which sends a student down for failing examinations will find itself at the receiving end of a writ for negligent tuition.l the boundaries of negligence, in the field of education, as elsewhere, are never closed.2 • based on a talk given at london school of economics law society: 13th. february, 1997. i am grateful to sarah-jane davies, my colleague at 4-5 grays inn square for her assistance with this talk . •• president, trinity college, oxford, judge of court of appeal, jersey and guernsey, master of the bench of grays inn. i see e.g. the sunday times, 9th. february, 1997, p.l. an earlier example is provided by sammy v. birkheck college the times 3rd. november, 1964. see also de mello v. loughhorough college of technology the times 17th. june, 1970. 2 xv. bedfordshire county council [1995] a.c.633. the denning law journal source of powers what is the source of a university's or college's powers to tenninate relationships and impose sanctions? in the case of its academic staff the answer lies essentially in contract, qualified by statute. in the case of its junior members, the answer lies essentially in contract too. the recent report of the task force on student disciplinary procedures [the zellick report] stated: "a university derives its disciplinary authority from its contractual relationship with the individual student, and possibly also from the student's membership ofthe university where that is formally recognised in the instrument of government. in consequence the student is expressly or by necessary implication required to subscribe to the rules of the institution for the time being in force.,,3 the loco parentis theorl has long since been discarded, although there are echoes of it in the judgment ofpennycuick 1. in glynn v. university of keele.s the remedies for breach will be those of private law, damages, injunction, declaration. but public law remedies may also be appropriate where the university is founded by statute6 or by statutory order.? in r. v. r.m.m. u. ex p. nolan, sedley j. said categorically: 3 c.y.c.p. 1994 p. i. in his report on the sit-in at cambridge university (1973, para.154) lord devlin said that the foundation of the disciplinary power was the contract of matriculation. see also generally lewis, "the legal nature of a university and the studentuniversity relationship" 1985 15 ottawa l. rev. 249.cf pharoah, "public law or private contract: judicial review in the statutory higher education institutions" 1997 e.p.l.i. vol 2 issue 3. 4 lewis, ibid. at 252-253. 5 [1971] 1 w.l.r. 487 at 494e-h. 6 e.g. spruce v. university (?f hong kong [1993] 2 h.k.l.r. 65. 7 e.g. merdeka university bhd. v. government (?f malaysia 2 m.l.j. 356 (1982); 2 malaya l.rev. 243 where i represented a group of chinese guilds and associations who sought to establish a private university in malaysia., where the tuition would be in chinese: and lost in the court of appeal: the majority (4) being malay, the minority (1) being chinese. 2 "scholars, students and sanctions" "the respondent is a public institution discharging a public function and having no visitor. it is subject to judicial review of its decisions on conventional grounds.,,8 what of the position of universities founded by charter i. e. under the prerogative? professor wade has argued that a charter confers only the powers of a natural person upon a university. it has no authority to determine the rights of anyone by virtue of its chartered status alone. its regulations depend for their legal force upon incorporation in a contract. the situation can be contrasted with statutory universities which, while they have jurisdiction only over those with whom they enter into a contractual relationship can thereafter point to statute as a source oftheir rule-making powers.9 the recent case of r. v. the jockey club, ex p. the aga khan certainly suggests that not all chartered bodies are amenable to judicial review. to . but a charter is, in my view, a source of powers, as well as a source of capacity: certainly it defines powers. moreover universities are performing public functions in the modern sense: education is primarily the necessary responsibility of the state. a university's autonomy is not threatened by the use of public law remedies against it; and public law principles (especially as to fair procedures) can inform the relationship of even private persons, where the private authority wields significant powers. 11 statute or charter can add to, subtract from or qualify contractual rights: and the governing instruments of universities will certainly be relevant in so far as any contract includes by necessary implication a provision that the university will only act within its powers and in accordance with its duty as laid down in the 8 [1994] e.l.r. 381 at 384.see generally lewis "litigation and the university student"("lewis on litigation") ch. 9 in mcmanus "education and the courts" sweet and maxwell, 1998 especially at pp 170 173 9 hw.r.wade, 85 l.q.r. 468: 90 l.q.r. 157. 10 [1993] 1 w.l.r. 909. iie.g. breen v. a.e. u. [1971] 2q.b. 175 per lord denning m.r. at 190.see generally on the availabilityof judicial review harris "judicial review and education" in "judicial review and social we(fare",cassels 1997 and "education and judicial review an overview" 1997 e.p.l.l. (issue 5) 24 at p. 25; farrington "resolving complaints by students in higher education" 1996 e.p.l.i. (issue 1) 7 at p 9. 3 the denning law journal procedures contained in those instnllllents. tenure against that background i start with consideration of an academic quasi-myth that of tenure. it is a legitimate concern of academics that they may be vulnerable to discipline or even dismissal, not on account of the incompetence of their teaching, but because of the unpopularity of their views. it is therefore regarded as a cornerstone of academic freedom that university teachers should have security of tenure for life, or at any rate until normal retiring age, subject only to not breaching the terms of their employment in some significant in the language of the cases 'repudiatory' way, or being otherwise guilty of misconduct. whether t'was ever thus, i shall not explore; it certainly has not been thus usually for the recent past and will not be thus in the perceptible future. insecurity rather than security of tenure is the dismal prospect for the modem academic unsurprisingly so when there are too many dons chasing too few jobs. the concept of tenure was touched on in the celebrated case of r. v. university of hull visitor ex p. page ['page1.12 in 1966 the applicant was appointed a lecturer to the university by a letter which, inter alia, stated (critically) that his appointment might be terminated by either party on giving three months' notice in writing. the appointment was subject to the university statutes which, inter alia, required the applicant to retire from office at age of 67. by section 34(1) of the statutes members of the staff who held their appointment until retirement might be removed "for good cause," and by section 34(3) subject to the terms of his appointment no member of the teaching staff could be removed save for good cause. in 1988 the university purportedly terminated the applicant's contract of employment not for good cause but on the ground of redundancy, giving him three months' written notice. he petitioned the visitor of the university for a declaration that such purported dismissal was contrary to section 34 so as to be ultra vires the university's powers and accordingly invalid. the visitor, lord jauncey of tullichettle dismissed the claim. the court of appeal found there was no presumption in favour oftenure.13 12 [1993] a.c.682 (h.l.) & [1991] 1 w.l.r. i2v7(c.a.). cffor canada khan. a "canadian universityacademic tenure implications" education and the law vol 9 no 2 1997 p 109 if 13 staughton l.j. said ibid: 4 "scholars, students and sanctions" notwithstanding that analysis, i was recently instructed on behalf of another university, whose name i cannot for reasons of client confidence disclose, whose "thus far i have said nothing about academic tenure. i fully appreciate that importance is attached tojob security by those who teach at universities; and i see nothing improbable in the university of hull in 1966 appointing someone as a lecturer until the age of 67, !>7j~iectonly to good cause. the statute itself contemplated that this might happen. but, equally, i see nothing improbable in the university appointing someone on terms that he should remain until that age, unless three months' notice was given sooner. accordingly, it is in my judgment right to approach the problem from a neutral position, without any predisposition to favour one solution or the other. that i have sought to do. likewise, i would see nothing improbable in the university binding itself to mr page for a longer period than mr page was bound to the university, if it chose to do so. but in my opinion it did not."[at 1289] [emphasis added]. farquarson l.j. said: "[counsel for mr. page] approaches the task of construction on what might be described as policy grounds. he !>7jbmitsthat the purpose of those sections in the !>1atuteis to preserve and guarantee academic freedom. no teacher should be at risk of di!>wissalbecause he expresses radical or unpopular opinions. he is given protection against such a risk by the provision that he can only be dismissed for "good cause" as expressed in the statute, which, broadly speaking, relates to immoral conduct of a disgraceful nature or incapacity. recognition of the importance ofthis safeguard is to be found in the education reform act 1988 in section 202(2)(a) and 203(1)(b). the introductory words of section 34(3) of the statutes could not therefore have been intended to remove the protection given to university teachers. [counsel for mr. page] argues that, if the university's construction is correct, the whole edifice set up by the section is destroyed. there would be no point in going through the painful and difficult task of proving disgraceful conduct by or incapacity of a member of the university staff if the problem could be resolved more simply by giving three months' notice. these are cogent arguments but for my part i find it difficult to spell out the policy suggested from these two sections. the provisions are equally consistent with a view which might be taken by the university that with falling rolls and increasing expenditure it could not afford a guarantee of employment for a professional lifetime. i agree with mr. burke that the two provisions, that is, in the statutes and in the letter of appointment, sit uneasily together but i do not accept his approach of attributing a policy to the statutes and then seeking to construe them in a way which achieves that policy. if the policy was clearly expressed in the statutes, it might be different but in the present case the task of the court is to derive the true meaning, if it can, from the words of the section themselves."[at 1292] [emphasis added). 5 the denning law journal solicitor told me that page was regarded among their staff as establishing the doctrine of tenure rather than as was the case giving it its quietus. in point of fact, there are not many academic institution in this country which have selected the second of staughton l.j. ' s two alternatives (i. e. appointment until retiring age, subject only to dismissal for good cause14); and, such as have, are no doubt cursing the draftsman. one example is provided by pearce v. university of birmingham (no.2) where sir nicholas browne-wilkinson v.-c. (sitting as a visitor) held the university had no power lmder its domestic laws to breach the respondents' contracts of employment by issuing redundancy notices. is under article 3 of its charter the university of birmingham only had power to do acts which complied with the terms of its charter itself and statutes. the vice-chancellor held that if it implemented the redundancies it would be acting in breach of section xxv of those statutes, which provided that academic staff could only be dismissed for good cause, and made no provision for dismissal for redundancy. 16 visitors the chief significance of page was that it confinned the vitality of another ancient concept but in this case a real, not a fanciful one the jurisdiction of the visitor. this had been explored in an earlier case in the house of lords, r. v. university of bradford ex p. thomas ['thomas1.17 in thomas the plaintiff was appointed a lecturer in sociology at the university of bradford and thus became an employee of the university under a contract of service, the holder of office in and member qfthe university, [which by royal charter was a corporation within a visitor's jurisdiction], and a corporator. the university purported to dismiss the plaintiff. she brought an action claiming, inter alia, a declaration that the university's decision to dismiss her was ultra vires, null and void by reason of non-compliance with the disciplinary rules and procedures contained in the university's charter, statutes, ordinances and 14 see ibid.. 15 [1991] 2 all e.r. 461. 16 see now the education reform act s.203(1 )(b). 11 [1987] a.c.795 in which i had appeared for the applicant teacher. 6 "scholars, students and sanctions" regulations, and incorporated in the contract. she also claimed damages for breach of contract or alternatively arrears of salary. it was held that where a dispute related to the correct interpretation and fair administration of the domestic laws of the university, its statutes and its ordinances, it fell within the jurisdiction of the visitor and not the courts of law. notwithstanding that the disputes resolution would affect the plaintiff's contract of employment the plaintiff was not relying upon a contractual obligation apart from an obligation of the university to comply with its own domestic laws. accordingly, her claim fell within the exclusive jurisdiction of the visitor, subject to the supervisory jurisdiction of the high court. by way of consolation it was also held that the visitor in the course of his supervisory jurisdiction must be entitled, in order to ensure that the domestic law is properly applied, to redress any grievance that has resulted from its misapplication. this redress might involve ordering the payment of arrears of salary where the visitor decides that the employment has not been determined, or compensation where the complainant has accepted the wrongful repudiation of his contract of employment. the house of lords took the view that the visitor's role was no anachronism and rejected several propositions of policy and principle which i advanced to contrary effect. 18 lord griffiths concluded: "i cannot accept that tile continuation of the visitorial jurisdiction with the scope and powers i have discussed will leave the academic staff of universities at a significant or at any disadvantage to their colleagues working in other fields of education. in the first place the action for wrongful dismissal has largely been superseded by the far wider protection afforded to employees by the employment protection (consolidation) act 1978. all these rights are available to all university academic staff because parliament can of course invade the jurisdiction of the visitor if it chooses to do so. if in the course of such proceedings any question arises concerning the interpretation or application of the internal laws of the university, it will have to be resolved for the purpose of tile case by the tribunal hearing tile application. such power must be implicit in the remedies provided by the act, and to this extent, parliament has given rights 18 see summary of my submissions, ibid at 802b-c. 7 the denning law journal that enter and supersede the jurisdiction of the visitor. i cannot accept the suggestion that if in the course of a tribunal hearing a question arises concerning the interpretation of university statutes etc., the case should be adjourned pending a decision by the visitor. this would be altogether too unwieldy a procedure and cannot have been the intention of parliament. secondly, if what is really sought is reinstatement, it is more likely to be achieved by appeal to the visitor than to the courts. as a general rule the courts will not enforce a contract of service and the delay that inevitably results between the dismissal and the date upon which the case comes before the court makes reinstatement all the less likely, for by the time the case is heard the plaintiff's post will have already been filled. the appeal to the visitor is, however, a speedy and informal procedure and reinstatement can be considered without the constraints imposed by' the passage of time. it is true that the decision of the visitor is final and the parties are thus deprived of challenging a decision in the court of appeal and perhaps the house of lords. but is this a disadvantage or an advantage? i rather think it is an advantage. today the visitors of universities either are or include independent persons of the highest judicial eminence. would'not most people consider it better to accept the decision of such a person rather than face the risk of the matter dragging on through the years until the appellate process has finally ground to a halt. there is also the advantage of cheapness, lack of fonnality and flexibility in the visitorial appeal procedure which is not bound by the intimidating and formalised procedures of the courts of law. finally, there is the protection afforded by the supervisory, as opposed to appellate, jurisdiction of the high court over the visitor . ....these considerations lead me to the conclusion that the visitorial jurisdiction subject to which all our modern universities have been founded is not an ancient anachronism which should now be severely curtailed, if not discarded. if confined to its proper limits, namely, the laws of the foundation and matters deriving therefrom, it provides a practical and expeditious means of resolving disputes which it is in the interests of the universities and their members to preserve. "19 19 ibid at 824c-825d. see also sir robert megarry y.-c. in patel v. university of bradfordsenate [1978] 1 w.l.r. 1488 at 1499-1500. 8 "scholars, students and sanctions" lord browne-wilkinson said supportively: "the advantages of having an informal system which produces a speedy, cheap and final answer to internal disputes has been repeatedly emphasised in the authorities, most recently by this house in thomas v. university o/bradford [1987] a.c. 795: see per lord griffiths at p.825d; see also patel v. university of bradford senate [1978] 1 w.l.r. 1488, 1499-1500. ifit were to be held that judicial review for error of law lay against the visitor i fear that, as in the present case, finality would be lost not only in cases raising pure questions of law but also in cases where it would be urged in accordance with tlle wednesbury principles (associated provincial picture houses ltd. v. wednesbury corporation [1948] 1 k.b. 223) that the visitor had failed to take into account relevant matters or taken into account irrelevant matters or had reached an irrational conclusion. although the visitor's position is anomalous, it provides a valuable machinery for resolving internal disputes which should not be lost. "20 the visitors' jurisdiction extends to all questions arising out of the institution's internal rules, notwithstanding that tlley involve contractual relations and notwithstanding that the complainant is not a member of the institution.21 in oakes v. sidney sussex college, cambridge, the courts refused to entertain action by student who had failed an examination and whom the college refused to readmit.22 sir nicholas browne-wilkinson v.-c. held that the jurisdiction of the visitor did not depend on the nature of the plaintiff's membership of the college, but on whether the rights claimed arose under its domestic law; and that, although the plaintiff was not a corporator of the college, but merely a member in 20 ibid. at p.704d-e 21 for valuable surveys of the law see j.w. bridge, (1970) 86 l.q.r. 531; p.m. smith (1981) 97 l.q.r. 610 and (1986) 136 n.l.j. 484,519,567; picarda, the law and practice relating to charities (2nd.ed.,1995,butterworths) at 521-539; lewis, litigation p 179-180; for the rights of students generally see a.samuels, [1973] j.s.p.t.l. 252. for recent cases confirming the exclusivity of the visitorial jurisdicition see joseph v board of examiners of the cle [1994] e.l.r. 407, r v visitors of the inner temple, ex parte bullock [1990] e.l.r. 349; r v university of nottingham ex p. k [1998] e.l.r. 185. 22 [1988] 1 w.l.r. 431. 9 the denning law journal statu pupillari, his claim was to enforce rights which he enjoyed under the domestic or internal law of the college.23 in r. v. committee ~rthe privy council ex p. vijayatunga where the complaint was to the appointment of allegedly inappropriate p.c.d. examiners, it was held that a visitor enjoys the widest power to investigate and correct wrongs within his jurisdiction.24 simon brown 1. (at first instance) analysed the breadth of jurisdiction thus: "i conclude that the visitor enjoys untrammelled jurisdiction to investigate and correct wrongs done in the administration of the internal law of the foundation to which he is appointed: a general power to right wrongs and redress grievances. and if that on occasion requires the visitor to act akin rather to an appeal court than to a review court, so be it. indeed there may well be occasions when he could not properly act other than as an essentially appellate tribunal .... he may, indeed should, investigate the basic facts to whatever depth he feels appropriate and he may interfere with any decision which he concludes to be wrong, even though he feels unable to categorise it as wednesbury unreasonable .... but it nevertheless remains important to recognise that many decisions giving rise to dispute will be subject to considerations which quite properly inhibit the visitors from embarking upon any independent fact-finding role. this is as plainly true of the appointment of examiners as of the decision of such examiners upon the standard attained by a candidate. but in both cases this seems to me less because the university statutes expressly entrust those decisions to the discretion of particular members of the university than that these members are peculiarly fitted by their eminence, experience and expertise to arrive at proper decisions. my final conclusion, therefore, is that the visitor's role cannot properly be characterised either as supervisory or appellate. it has no exact analogy 23 "it seems to me that in the case of a student at an oxford or cambridge .college who is not a corporator in the sense of being part of the foundation of the college the fact that he is not a corporator is not necessarily decisive. it may be that, if he is treated throughout as a member and is seeking to rely on his membership, he is subject to the jurisdiction of the visitor." [ibid. at 440g-h]. 24 [1990] 2 q.b.444. 10 "scholars, students and sanctions" with that of the ordinary courts. it cannot usefully be defined beyond saying that the visitor has untrammelled power to investigate and right wrongs arising from the application of the domestic laws of a charitable foundation; untrammelled, that is, save only and always that the visitor must recognise the full width of his jurisdiction and yet approach its exercise in any given case reasonably (in the public law sense)."25 in the court of appeal bingham l.j. upheld this approach: "i wholly agree with the general principles which simon brown j. laid down. the correct approach can, i think, be illustrated by a hypothetical case involving facts remote from the present. i suppose a college whose statutes empowered it to terminate a student's membership, inter alia, if (1) he or she failed after receiving 28 days' written notice to do so to pay any sum owed to the college, or (2) was guilty of persistent insobriety such as, in the opinion of the college, to render him or her unfit to remain as a member, or (3) failed in the opinion of the college to attain the academic standard required of students of the college. i also suppose an appeal to the visitor by students whose membership had been determined under (1), (2) and (3) respectively. in case (1) the visitor's role, although characterised, one hopes, by the cheapness, lack of formality and procedural flexibility applauded by lord griffiths in thomas v. university qf bra4ford [1987] a.c. 795, 824 would be essentially that of a first instance judge: that is, he would hear and determine any disputed issue whether the debt was owed, whether notice was given, whether there was a failure to pay and whether any defence of estoppel or a promise of extra time was made out. he would be the judge of the facts and the law. in case (2) his role would be a little different. here, he would, i think, satisfy himself (if it were in issue) that there was reliable evidence of persistent insobriety not of a trivial kind. he would further wish to be satisfied, if there were any reason to doubt, that the college's decision was taken in good faith and not for any extraneous reason. if satisfied on those points he would not, even if it were different, substitute his own opinion on fitness for that of the college. that is because his responsibility is to 25 [1988] q.b.322 at 344. 11 the denning law journal see that the college acts lawfully in accordance with the statutes, not to act as an independent arbiter of matters entrusted by the statutes to the judgment of the college and on which its judgment is likely to be better, because better informed and more experienced, than his. in case (3) the visitor would, again, satisfy himself (if it were in doubt) that there was reliable evidence of poor academic performance and that the college's decision had not been tainted by bad faith or extraneous motivation. if so satisfied, he would go no further, for the same reasons as in (2). he could not legitimately override the college's bona fide assessment, based on reliable evidence, of the student's academic performance. "26 it was confirmed in thomas that the visitor, moreover, is subject to judicial review for breach of natural justice as well as for lack of jurisdiction and of power, but not (by a 3-2 majority) for error offact or law, the domestic law of the foundation being distinct from that of the law of the land a species of foreign law; r. v. hull university visitor ex p. page.27 this reinforcement of this ancient institution has modem significance. although oxford and cambridge themselves being civil corporations do not have visitors, their colleges as eleemosynary corporations do. new universities created by charter are also eleemosynary corporations and have or are entitled to have a visitor, the universities which have acquired the title only as a result of the further and higher education act 1992 do not. 28 as picarda has pointed out the distinction in this context between universities ancient and modem owes "more to history than to logic. "29 the visitors will commonly be the crown (acting through the lord chancellor), unless the crown or the founder have denominated some other visitor.30 26 ibid at 457d-458d. 27 supra. n.12. 28 picarda, supra.n.21 at 522. 29 ibid. 30 trinity college, oxford has the bishop of winchester as its visitor. all oxford colleges whose heads are called president have the same bishop as visitor: but the bishop is visitor to some colleges whose heads are not called president. lowe this analysis to lord bingham of cornhill l.c.j.: even he, however, has been unable to explain the rationale for the position. 12 "scholars, students and sanctions" sir robert megarry v.-c. was correct to say "the extent of visitatorial jurisdiction in university life has greatly expanded in recent years in patel v. bradford university senate, 31 although the education refonn act 1988 [e.r.a.] has to an extent set limits to that expansion. the educanon reform act 1988 in page, lord griffiths had said: "if it thought that the exclusive jurisdiction of the visitor has outlived its usefulness, which i beg to doubt, then i think that it should be swept away by parliament and not undennined by judicial review. "32 to an extent this has occurred. elaborate dismissal procedures for universities and colleges have been instituted under the e.r.a. sections 202-8. transitional provisions are complicated. for example in pearce v. university 0.(aston in birmingham (no. 1)[pearce no.1] it was held as a general rule, under the common law all disputes between members of the academic staff and their university fell within the exclusive jurisdiction of the visitor.33 on its true construction section 206(1) of the e.r.a.1988, being expressed in unqualified tenns, had the effect of excluding the visitor's fonnal jurisdiction in respect of employment disputes between a university and members of its academic staff. it followed, therefore, that since the court always had jurisdiction except fa the extent that statute or a rule of the common law excluded it, the effect of section 206(1) was to restore the court's jurisdiction in such matters, while section 206(2) had the effect of preserving the visitor's jurisdiction in such disputes provided that they were referred to him before the relevant date, being the date on which the university commissioners amended the university's statutes to include new procedures made by them under section 203 of the 1988 act for the hearing and detennination of appeals by members of the academic staff who had been dismissed or were under notice of dismissal, but, lmless and until such a reference was made and accepted by the visitor, the academic staff were at 31 [1978] 1 w.l.r.1488, affirmed [1979] 1 w.l.r.i066. 32 supra. n. 12 at 694£. 33 [1991] 2 alle.r.461. see alsohines v.birkbeck college (no.2) [1991] 4 alle.r.450. 13 the denning law journal liberty to bring and continue proceedings in respect of such disputes in the courts. although such a construction of section 206(1) and (2) might lead to the inconvenient and perhaps costly result that the jurisdiction of the court, once involved, would be ousted if one of the parties to the dispute subsequently made a successful reference to the visitor, that result, however inconvenient, was irrelevant because the wording of the two subsections was clear, and since it did not lead to any absurdity the court was bound to give the statutory provisions due effect. it followed that since the new appeal procedures had not been incorporated into the university's statutes and the relevant date had not arrived, the court had jurisdiction to hear the plaintiff's dispute with the university. to that extent parliament has transferred the jurisdiction of the visitor to special statutory bodies and tribunals. st atutory rights where tlle statutory law of employment protection against unfair dismissal is engaged, it is, of course, overriding.34 those rights are currently contained in the employment protection (consolidation) act 1978 ss. 54-80, as amended. natural justice whatever the machinery of enforcement, the courts have in general held that academic disciplinary proceedings require the observance of the principles of natural justice: and have been willing to intervene since as far back as the case of dr. bentley, where the complainant had been deprived of his degrees for alleged contempt of the vice-chancellor's court.3sthe court enjoyed jurisdiction since the complaint was against the university, as distinct from a college. fortescue j. plucked precedent from prehistory: "1 remember to have heard it observed by a very learned man upon such an occasion that even god himself did not pass sentence upon adam before he was called upon to make his defence."36 34 thomas (supra) at p.824. 35 r. v. university of cambridge (1723) 1 str. 557. 36 ibid. at 567. 14 "scholars, students and sanctions" a university lecturer was, it is tnle, in one case held by the privy council to be a mere contractual employee, so that he could be dismissed without a hearing as explained in the preceding section. this was in vidyodaya university v. silva.3? this decision has been criticised by high authority, lord wilberforce, and is not now a safe guide.38 wade and forsyth conclude cautiously: "but it is at least possible that academic staff of some grades may in law be mere servants. more probably holders of established posts would be regarded as office-holders and so entitled to the benefit of natural justice."39 students students have the protection of their contracts of membership: it will be implied that in return for their fees they will be treated in accordance with the 37 [1965] 1 w.l.r. 77; & ibid. at 558. 38 in malloch v. aberdeen corporation [1971] 1 w.l.r. 1578 he said: "one such, which i refer to because it may be thought to have some relevance here, is vidyodaya university council v. silva []965] ] w.l.r. 77, concerned with a university professor, who was dismissed without a hearing. he succeeded before the supreme court of ceylon in obtaining an order for certiorari to quash the decision of the university, but that judgment was set aside by the privy council on the ground that the relation was that of master and servant to which the remedy of certiorari had no application. it would not be necessary or appropriate to disagree with the procedural or even the factual basis on which this decision rests: but i must confess that i could not follow it in this country in so far as it involves a denial of any remedy of administrative law to analogous employments. statutory provisions similar to those on which the employment rested would tend to show, to my mind, in england or in scotland, that it was one of a sufficiently public character, or one partaking sufficiently of the nature of an office, to attract appropriate remedies of administrative law."[at 1596f-h]. 39 in administrative law (7th.ed.,oxford university press, 1994) at 564. for a comparison of the way the law treats staff and students in disciplinary issues see walker and woolf" staffand students discip]ine similarities or differences" e.p.l.i. ]997 (issue 1) 13. commenting on the contractual relationship of the students with the university or college see farrington, note j j supra, says" departure from express procedural rules will also give rise to a justiciable claim" lewis litigation p 173 -4 15 the denning law journal university or college rules, and be entitled to such protection as those rules confer. in herring v. templeman [herring] the student was dismissed on academic grounds; the recommendation being made by the academic board; confirmed by the principal; and upheld by the governing body.40 it was held the allegations in the statement of claim would be struck out; there had been no breach of the rules of natural justice. one cannot help but note that whatever natural justice was said to apply in theory it proved elusive to identify its requirements in practice. the first two stages of the procedure were said not to attract it because they led to recommendations only, the last because the body lacked the relevant expertise to adjudicate upon academic matters. first of all, by the academic board: no implied obligation to accord a hearing to a student could be imposed on a board which only had power to make recommendations to expel. it was tlle board's duty to form an unbiassed assessment of the plaintiff's standard of work based on the entirety of his record and potential, and in making such an assessment with a view to deciding on its recommendation it was entitled to take everything it thought relevant into account; the board had taken into account nothing that it was not entitled to do.41 secondly by the principal: there was no ground for implying a term that the recommendation of the academic board should be formally re-opened at a hearing before the principal before he decided whether or not to pass it on as his own.42 thirdly by the governing body: the assumption that the plaintiff was entitled as of right to a full legal trial on every detailed matter was fallacious; the hearing before the governing body was neither a law suit nor a legal arbitration; its purpose was to give the student a fair chance to show why the recommendations of the academic board, which was the competent body to make an assessment, and the principal should not be accepted; it was tlle duty of the governing body to act fairly. on the evidence there was notlling to show that it had acted unfairly in any way; the plaintiff had been told why the recommendations were made and what the relevant facts were.43 natural justice was like the bed of procrustes, the fit was never perfect. 40 [1973] 3 all e.r. 569 at 585. 41 ibid. at 584d-f & 585j -586b &e, post. 42 ibid. at 584d & 586f -j. 43 ibid. at 587b-e & 588b, c, e & g, post. 16 "scholars, students and sanctions" perhaps the clue lies in the concluding words of the judgment: "it will be appreciated that for the governing body to accept a recommendation such as this must be distasteful to it; but in a proper case the responsibility cannot be shirked if the public interest in competent teaching in schools is to be protected.'>44 the importance to students of the issues involved has rarely been underrated. in herring russell l.j. said: "in dealing with this aspect of the case, since in every case what are the requirements of natural justice must depend on all the circumstances, we appreciate that the consequences of dismissal are very serious for the plaintiff, who hopes to earn his living in the teaching profession. ,,45 in r. v. aston university senate ex p. rq{fey, donaldson 1. said: "mr. pantridge was a student member ofthe university enjoying the rights and privileges of that status with the chance of achieving graduate status in due time. the sanction which the university was entitled to impose was total deprivation of that status and of the chance of improving it thereafter. furthermore, as mr. pantridge found to his cost, an ex-student member of a university may well be in a more disadvantageous position than one who aspires for the first time to student status. there have been more momentous decisions than that made by the examiners in the case of mr. pantridge, but there can be no denying its gravity from his point of view. ,,46 however it is a notable feature of the cases on student discipline and dismissal that, either the treatment metered out was found to be fair or, if it was not, discretionary reasons were somehow found to deny relief. in the former category (no unfairness) is ceylon university v. fernando where 44 ibid. at 588g-h. 45 ibid. at 582f-g. 46 [1969] 2 q.b. 538 at 552d-e. 17 the denning law journal the misconduct alleged was cheating in exams.47 it was held, that in the absence in the relevant clause of the statutes of the university of any express requirement as to the procedure to be followed at the inquiry, such procedure must comply with the elementary and essential principles of fairness. this must as a matter of necessary implication be treated as applicable in the discharge of the vicechancellor's admittedly quasi-judicial functions under clause 8. the vicechancellor could, however, obtain information in any way he thought best, and it was open to him, if he thought fit, to question witnesses without inviting the respondent to be present, but a fair opportunity must have been given to the student to correct or contradict any relevant statement to his prejudice. in ward v. bradford corporation, a woman teacher training student was found with a man in her room.48 it was held that the members of the disciplinary committee were entitled to seek advice from the director of education as a whole on a particular policy, and on the application of that policy to the circumstapces of a particular case, so that the case came within the exceptions to the general rule that no person ought to participate in the deliberations of a judicial or quasijudicial body unless he was a member of it. accordingly, the participation of the director had not been such as to invalidate the proceedings, though it would be better in future for the director of education or his representative not to participate in the disciplinary colmnittee's deliberations, and that the rules should be amended to make that clear. lord denning said: "if there were any evidence that miss ward had been treated in any way unfairly or unjustly i would be in favour of interfering. but i do not think she was treated unfairly or unjustly. she had broken the rules most flagrantly. she had invited a man to her room and lived there with him for weeks on end. i say nothing about her morals. she claims that they are her own affair. so be it. if she wanted to live with this man, she could have gone into lodgings in the towd and no-one would have worried, except perhaps her parents. instead of going into lodgings she had tllis man with her; night after night, in the hall of residence where such a thing was absolutely forbidden. that is a fine example to set to others. and she is a girl training to be a teacher! i expect the governors and the staff all thought that she 47 [1960] 1 w.l.r. 223. 48 (i972) 70 l.g.r. 27. 18 "scholars, students and sanctions" was quite an unsuitable person for it. she would never make a teacher. no parent would knowingly entrust their child to her care. six members of the disciplinary committee voted decisively for her expulsion. not a single vote was cast against it, nor for any less sentence. three abstained for reasons best known to themselves."49 this was a blatant example of substance trumping procedure. moreover, the requirements of fairness are painted with a broad brush. a student may be rusticated from his college without an oral hearing, ifhe has been told the nature of the complaints against him and given a fair opportunity to state his case in writing. 50 the same conclusion was reached in spruce v. university of hong kong, where the lecturer was dismissed for indulging in covert practice at the bar to the perceived detriment of her university responsibilities. 51 lord browne-wilkinson said: "there is no general principle that the rules of natural justice require an oral hearing, let alone an oral speech in mitigation. "52 no appeal is required. in brighton corporation v. parry, a local authority was held entitled to an injunction to restrain a president of the students' union from entering the premises of a teacher training college nm and managed by it when restricted by governors upheld a decision of the academic board.53 willis 1. said: "in my view, the audi alteram partem rule was complied with ad the facts of this case by the defendant being allowed to make written representations for the board's consideration: ... it seems to me, on the facts, first that the defendant knew precisely the nature of the complaints which were made about him; secondly, that he was given an opportunity to state his case; and 49 ibid. at 35. 50 brighton corporation v. parry (1972) 70 l.g.r. 576 5\ supra.n.6. 52 ibid. at 72 53 supra. n.50. 19 the denning law journal thirdly, that the tribunal acted in good faith. in those circumstances, it seems to me on those three findings that it is conclusive that there was no breach of the rules of natural justice in the defendant's exclusion from an oral hearing by the board. on the contrary he was, i think, treated with complete fairness throughout. ... he has since acted in the plainest defiance of the authority of the college of which he is a student. it may be that he considers his actions justified as a means of challenging and forcing a change in certain of the college procedures, of which he, and it appears from the evidence filed on his behalf, the national union of students disapprove. if so, it seems to me that he must have known that any college, which was not going to abdicate its authority in the face of a student challenge of that sort, would be bound to find such conduct quite intolerable. it seems to me, in all the circumstances, therefore, that this is a case where the plaintiffs are entitled to look to the court to support them when their authority is deliberately and publicly flouted by an insubordinate student, particularly when that student is president of the students' union."s4 in ward lord denning m.r. said: "natural justice does not require the provision of an appeal. so long as the party concerned has a fair hearing by a fair-minded man or body of men that is enough."ss in the second category,(discretionary refusal, dspite unfairness) is r v. university qf aston ex parte rq{fey. there the applicants were university students, and special regulations governing their course provided: "students who ... fail in a referred examination, may at the discretion of the examiners, re-sit the whole examination or may be required to withdraw from the course.,,56 54 ibid. at 586. 55 supra.n.49 at 35. 56 [1969] 2 q.b. 538 20 "scholars, students and sanctions" they were expelled for failure in examinations but succeeded in showing that they had not been treated in accordance with natural justice by the examiners, but because the examiners had themselves decided that they be asked to withdraw after taking into account personal factors as well as examination marks; relief however was refused owing to undue delay in bringing the proceedings. in glynn v. keele university, a student who had been fined and rusticated for exhibiting himself nude on the campus was able to show that the vice-chancellor had failed to observe the requirements of natural justice since he had given the student no hearing initially but had merely informed him that he could appeal against the penalties.57 57 supra. n.5 at 494e-hper pennycuick v.-c.: "the context of educational societies involves a special factor which is not present in other contexts, namely the relation of tutor and pupil; that is to say the society is charged with the upbringing and supervision of the pupil under tuition, be the society a university or college, or a school. where this relationship exists it is quite plain that on the one hand in certain circumstances the body or individual acting on behalf of the society must be regarded as acting in a quasi-judicial capacity expulsion from the society is the obvious example. on the other hand, there is a wide range of circumstances in which the body or individual is concerned to impose penalties by way of domestic discipline. in these circumstances it seems to me that the body or individual is not acting in a quasi-judicial capacity at all but in a magisterial capacity, i.e. in the performance of the rights and duties vested in the society as to the upbringing and supervision of the members of the society. no doubt there is a moral obligation to act fairly, but this moral obligation does not, i think, lie within the purview of the court in its control over quasi-judicial acts. indeed, in the case of a schoolboy punishment the contrary would hardly be argued." and at 49sc-d: "!fa student is excluded from the university it is hard to see how he can carry on his studies at the university. i have found considerable difficulty in making up my mind as to which side of the line those powers fall. when the vice-chancellor exercises those powers should he be regarded as acting in a quasi-judicial capacity, or should he be regarded as acting merely in a magisterial capacity? on the best consideration i can give it but let me say at once it is by no means the end of the matter i have come to the conclusion that those powers are so fundamental to the position of a student in the university that the vice-chancellor must be considered as acting in a quasi-judicial capacity when he exercises them; i do not think it would be right to treat those powers as merely matters of internal discipline." 21 the denning law journal once again, relief however was refused in discretion, since the facts were not contested and the penalties were held to be obviously proper.58 there have been some extravagant claims of injustice, ex parte forster, in re sydney university, in which a student claimed an alleged absolute right to remain a member of the university irrespective of examination results, the court sensibly denied the existence of any such right. 59 academic matters the courts have always refused to involve themselves in reviewing purely academic matters e.g. methods or accuracy of academic valuation. this has often been explained in terms of the exclusive jurisdiction of the visitor. 60 but the true reason is perceived incompetence. in thorne v. university q[ london, diplock l.j. held: "the high court does not act as a court of appeal from university examiners; and speaking for my own part, i am very glad that it declines jurisdiction. "6] lessons what then are the lessons to be learned? first, that academic institutions should cause their constituent instruments to be reviewed by competent lawyers with a view to ensuring that they are both clear and fair. the "contracts" are rarely to be found in a single convenient document, signed by both parties. rather they are dispersed among a number of instruments, statutes, regulations, handbooks and the like, such that their precise identification 58 see also r. v. oxford university ex p. bolchover, the times, 7th. october, 1970. 59 [1963] s.r. (n.s.w.) 723. 60 e.g. thomson v. university of london (1864) 33 l.j. ch. 625 at 634; patel v. university of bradford senate supra. n. 31. 61 [1966] 2 q.b. 237 at 243 applied in m v london guildhall university [1998] e.l.r. 149. see also r v. higher education funding council, ex p. institute of dental surgery [1994] 1 w.l.r. 242. r v liverpool john moores university ex p. hughes ( 1998) e.l.r. 261 per collins j at 271 "it would be quite impossible for any judge to order that she (sc. the applicant) be awarded an honours degree." 22 "scholars, students and sanctions" may well be a source of controversy. in ward orr l.j. said: "the drafting is on any view unfortunate and i agree that ... the disciplinary provisions of the articles should be reconsidered as a matter of urgency .'>62 as lord griffiths pointed out in page, disaffected dons or students will be astute to take any points available on badly drafted documents. he said: "the learning and ingenuity of those members of the foundation who are likely to be in dispute with the foundation should not be lightly underestimated and i believe to admit certiorari to challenge the visitor's decision on the ground of error oflaw will in practice prove to be the introduction of an appeal by another name.'>63 secondly, that the basic rules of natural justice be observed. the teacher or the student are equally entitled to know the case against them; to be given adequate opportunity to reply to it; and to be represented in substantial cases. the body that disposes of their fate should not have among its membership anyone who has been involved in bringing the case against before them. prosecutors should not be judges. thirdly (by way of qualification), no effort should be made to mimic to the letter the procedures and practices of a court. oral hearings are not required; still less are dons or students entitled to legal representation before domestic bodies. nor is a don or student entitled as a matter oflaw to an internal appealalthough the presence of one may dissuade him or her from seeking resort to the courts themselves. render unto the court the things that are the courts' and unto domestic tribunals the things that are domestic tribunals' . fourthly, where misconduct is alleged, reasons ought to be given for any punishment imposed: what the offence consisted of: how it was established: and why the particular punishment fits the crime. there is no legal need, however, for 62 supra.n.49 at 40. 63 supra.n.12 at 694e. 23 the denning law journal academic bodies to explain why a student's essay was not up to snuff.64 64 in r. v. higher education funding council, ex parte institute of dental surgery (d.c.) supra.n.61, sedley 1. said: "we would hold that where what is sought to be impugned is on the evidence no more than an informed exercise of academic judgment, fairness alone will not require reasons to be given. this is not to say for a moment that academic decisions are beyond challenge. a mark, for example, awarded as an examiners' meeting where irrelevant and damaging personal factors have been allowed to enter into the evaluation ofa candidate's written paper is something more than an informed exercise of academic judgment. where evidence shows that something extraneous has entered into the process of academic judgment, one of two results may follow depending on the nature of the fault; either the decision will fall without more, or the court may require reasons to be given, so that the decision can either be seen to be sound or can be seen or (absent reasons) be inferred to be. flawed. but purely academic judgments, in our view, will as a rule not be in the class of case exemplified, though by no means exhausted, by ex parte doody [1993] 3 w.l.r. 154, where the nature and impact of the decision itself call for reasons as a routine aspect of procedural fairness."[at 261b-e]. and at 263a-b "in summary, then (1) there is no general duty to give reasons for a decision, but there are classes of case where there is such a duty. (2) one such class is where the subject matter is an interest so highly regarded by the law (for example, personal liberty), that fairness requires that reasons, at least for particular decisions, be given as of right. (3) (a) another such class is where the decision appears aberrant. here fairness may requi(y reasons so that the recipient may know whether the aberration is in the legal sense'real (and so challengeable) or apparent; (b) it follows that this class does not include decisions which are themselves challengeable by reference only to the reasons for them. a pure exercise of academic judgment is such a decision. and (c) procedurally, the grant of.leave in such cases will depend upon prima facie evidence that something has gone:wrong. the respondent may then seek to demonstrate that it is not so and that the decision is an unalloyed exercised of an intrinsically unchallengeable judgment. if the respondent succeeds, the application fails. if the respondent fails, relief may take the form of an order of mandamus to give reasons, or (if a justiciable flaw has been established) other appropriate relief. but just as it is outwith this court's powers to judge degrees of excellence in clinical dentistry research, or for that matter the wisdom of a body's administrative arrangements, so it is not open to this court to require the communication of reasons, even where such reasons must necessarily exist, in the current absence of a legal basis for the requirement." but see also r v university of cambridge ex parte evans (d.c. sedley 1. january 1998 (unreported). 24 "scholars, students and sanctions" double jeopardy the rule against double jeopardy does not prevent academic institutions from adjudicating upon matters which fall within the remit of the courts, especially the criminal courts. "the doctrines of double jeopardy qv 1977 a.c. 1 and res judicata do not apply to domestic proceedings whether the first case is in an external forum or in the domestic tribunal itself.'>6s indeed a conviction by a court may not unless the university's own rules so specify be conclusive of commission of an offence before a university body. 66 it was failure to recognise this principle which prompted one of the most famous judicial observations of the twentieth century: "convenience and justice are often not on speaking terms. '>67 the zellick report identified four separate situations where consideration had to be given to the advisability of permitting concurrent proceedings criminal and disciplinary to take place. where the conduct is closely related to the academic or other work of the university (e.g. theft oflibrary books): (1) where the conduct occurred on campus or other university property (i. e. assault in the student union) they found no difficulty in engaging the disciplinary machinery of the university. (2) where the conduct involved other university members but was off campus (e.g. attempted rape of another student at her home) they found a prima facie case for action. (3) where none of those features were present, but the conduct damaged the university's reputation or threatened the university community (e.g. student supplied drugs in town) they also found such a case although they urged caution. in each instance, of course, it would be necessary to. ensure that the university instruments identified the conduct as constituting an offence so that the university had power to react: it was the prudence of exercising a power ex hypothesi 6s forbes, the law of domestic or private tribunals. law book company, 1982 ati49; zellick, supra.n.3 at para.32. 66 q gmcv. spackman [1943] a.c. 627. 67 ibid at 638 per lord atkin (cf though zellick, .mpra. n.3 at para.33). 25 the denning law journal enjoyed which engaged under consideration by zellick. where the line is drawn is a matter more for judgment than for law: and certainly not everyone agrees with the zellick boundaries. oxford has considered them with care the matter being complicated by the division of responsibilities between university and college. abstinence from action by the university organs, if the offence is in their judgment clearly made out is not a sensible option. in particular, in that grey area where sexual harassment shades into criminal assault and worse the universities must tread with care but with resolution. stay of course, the courts may intervene to stay domestic proceedings where they themselves are seized of the relevant issue. in r. v. b.b.c. ex p. lavelle, woolf 1. (as he then was) held that a court had power to cause domestic disciplinary proceedings to be adjourned on the grounds that their construction could prejudice criminal proceedings: "it will only do so in very clear cases on which the applicant can show that there is a real danger and not merely a notional danger that there would be a miscarriage of justice in the criminal proceedings if the court did not intervene.'>68 universities should accordingly ensure that they have provisions to suspend students charged with serious offences: but that such decisions be taken only after according the student a right to make representations, a full review of the facts and even (ex abundanti cautela) an appeal mechanism: "universities are not at risk of legal action nor would they have to pay compensation for suspending a student in accordance with their procedures even if the student is subsequently acquitted in the courts after a lengthy period of suspension. '>69 68 [1983] 1 w.l.r. 241 at 255g-h. 69 zellick, supra.n.3 at para.29. 26 "scholars, students and sanctions" envoi basing himself on the above principles the author drafted a model disciplinary code for the conference of oxford colleges. to the extent to which it was adopted, time will tell whether his analysis of what fairness required will be accepted by the courts. 27 the mythical contract of employment sir j. wood* "lawyers specialising in labour law agree that the individual contract of service is 'the corner stone of the edifice' of labour law." i it can be no surprise that this should be so in respect of the individual relationship between a worker and the employer: it is much harder to envisage the individual contract of service controlling, or perhaps more accurately greatly influencing, the collective relationships between trade union and employer. labour law has been a slow, evolutionary growth, depending on an often unhappy mixture of common law and statute. in a very english way the basic principles, though much talked about,2 have neither authority nor do they guide the legislator, who is normally wearing political blinkers and rushing to remedy a perceived abuse,3 or the courts who tend to busy themselves interpreting the documents put before them as literally as possible, be they contracts or statutes.4 there is a generally accepted tendency to make an important basic classification between individual and collective labour law. although it is an obvious and a sensible classification for overall purposes and for teaching, it is not a clear and precise distinction and so can often be misleading. there are several complications. for example, the individual contract of service, when collective bargaining is established, is largely derived from the collective bargain between the employer and trade union which has as its principal purpose the fixing of at least the central terms of the individual worker's contract of employment. happily, as far as the individual worker is concerned, the legal doctrine of incorporation is called in aid to marry the two, for without such wedding the terms • professor of law, university of sheffield. 1. charles g. hanson and graham mather, striking out strikes, lea, hobart paper 110, 1988. the phrase quoted is from o. kahn freund. 2. the discussion of 'the right to strike' is the best example of the difference between the political and the legal approach in great britain. 3. the industrial legislation since the employment act 1980 clearly shows this approach, especially when compared with the industrial relations act 1971. 4. a series of three cases reaching results by means of interpretation of statute which ran completely counterto what was expected arenwl ltd. v. nelson [1979] i.c.r. 867, express newspapers ltd. v. mcshane [1980] i.r.l.r. 35 and duport steels ltd. v. sirs [1980] i.r.l.r. 116. 141 the denning law journal agreed collectively would fail to secure his position, since it is traditional that the collective bargain is not to be regarded as legally binding.s history shows that employment relations emerged from status and have been, for a very long time, firmly rooted in contract. the theory of contract gave the employer and worker (the contemporary jargon was master and servant) the power to determine in detail the particular terms that would apply to their relationship. in practice, such has been the general neglect of strict legal processes, only a handful of terms were in fact specifically agreed.6 the contract has been traditionally 'filled in' by the implication of either 'customary terms' or terms which have obviously been assumed to exist in practice and so have been deemed to be implied into the agreement and in that way become part of the contract and legally binding. in practice this has meant that the judges, in the name of public policy, 'discovered' a framework of standard terms which were applied to different types of contract. outside the field of collective bargaining the employer was often merely offering a 'contract of adhesion' with virtually no chance for the terms to be bargained. the fundamental notion that a contract is the freely accepted result of a detailed bargaining process was, therefore, though correct in theory nonetheless a relatively inaccurate way of indicating what was happening in practice, especially where collective bargaining was absent. real agreement was illusory for even within the ambit of collective bargaining the terms agreed were by no means comprehensive and much of importance was left uncovered. collective bargaining is the normal expression of a positive relationship between a trade union, and by implication its members, on the one hand and an employers' association or individual employer on the other. a strike, that is to say the co-ordinated withdrawal of labour, is the ultimate result of a fractured relationship. it is the workers' counter to the power of an employer to impose terms and conditions of work. without such action being protected, it has been generally recognised, the safeguard of collectivism is seriously emasculated and will fail to protect the worker. this is not the place to discuss whether strikes should be allowed, or if allowed how they should be regulated. there has been, for much of this century and in most of the industrialised world, a consensus that labour needs the protection of such 'right to strike'. the inverted commas are necessary because to some the phrase means an unfettered right, although prudence would suggest that there must be some reasonable limitations. the most comprehensive statement of the generally accepted position are the key i.l.o. conventions,7 ratified by a very large number of states8 and discussed fully in a 5. a challenge to this assumption, based on the attitude in the u.s.a., by ford motors failed: ford molorcompany v.aeuf and tgwu [1969] 2 q.b. 303. perhaps surprisingly this assumption has not been seen as an object for change. 6. until the contracts of employment act 1963 it was not necessary for the worker even to be given a record of the principal terms of his contract. 7. the principal conventions are no. 87, no. 98 setting out fundamental rights and the more recent no. 151 dealing with the public sector. 8. there are over 100ratifications of conventions no. 87 (1948) and no. 98 (1949) and about 20 of the much more recently promulgated no. 151 (1978). 142 the mythical contract of employment general survey by that body's committee of experts.9 the reader who looks at footnotes will however have noted the title of the academic pamphlet quoted at the outset which reflects a more hostile attitude striking out stn'kes, indicating that there is another view, one which appears to be growing strongly in some countries at the present time. it has already been indicated that phrases such as 'the right to strike' have no real place in the anglo-saxon type legal system. even where such a right appears to exist it will be found to be considerably hedged about. since collective withdrawal of labour is in certain circumstances inevitable, english law has naturally regulated striking by way of statute. the first principal modern statute was the trade disputes act 1906, which though both regulatory and restrictive, proved to be so wide as to require little in the way of reform until modern times.10 it was inevitable, even without a shift in politic!!lopinion, that changes in patterns of work and in the organisation of industry into larger units would lead to reforms involving more restrictive rules, always advocated by some. the discussion started in the late 1950's,l] reached a climax in the report of the donovan commissionl2 and the white paper in place of strife, 13 which led to a debate giving a clear indication of the lack of agreement in the cabinet of what should be done. 14 mter the change of government there was an abortive attempt to put in place a radical new system, by means of the industrial relations act 1971, repealed in 1974.15 this failure gave a temporary respite from the demand for change but since 1979 there has been a steady flow of legislation by the conservative governments pursuing a self-proclaimed 'step by step' series of reforms.]6 the aim of this legislation was to remedy what were perceived as abuses. secondary action, picketing and the closed shop are notable examples of the targets for reform. the changes have, as was to be expected, met with fierce opposition from the trade unions who have found their powers very severely reduced, as was the intention. the way in which the changes have been initiated, although typically british in their pragmatic form, have created a serious problem. the rules seek to regulate the actions of trade unions and their members and the approach to this has been to make certain conduct hazardous, that is to say no longer protected by the exemptions from the normal rules of law which has been the essential underpinning of the right of trade unions to act and without which they could 9. a general study was made on conventions 87 and 98 in 1973. 10. the structure remained basically unaltered until 1971and was restored in its fundamentals forthe period 1974 to 1980. ii. a giant's strength, inns of court conservative and unionist society, 1958. 12. royal commission on trade unions and employers' associations 1965-1968, cmnd. 3623. 13.in place of strife: a policy for industrial relations (1969), cmnd. 3888. 14. entertainingly recorded by peter jenkins and charles knight, the battle of downing street (1970). 15. trade union and labour relations act 1974. although s. i resoundly repeals the earlier act, a significant part of it dealing with individual rights in respect of unfair dismissal was retained, substantially unchanged. 16. the first green paper, trade union immunities (1980), is also the last such government publication of this nature that has frankly put the differing arguments. 143 the denning law journal never have been of any real effect. the contrast with the industrial relations act 1971is marked, for that statute attempted to lay down a coherent and systematised set of rules which would clearly define the legitimate actions which a trade union could take in pursuance of its policies. there has been no overt overall pattern to the recent reforms which, as has already been emphasised, have been 'abuse driven', defining what cannot be safely done but failing positively to indicate what is permissible. it has become well-nigh impossible to answer the question, from perusal of the legislation: when is a trade union able to organise a strike which will enjoy legal protection? it may be possible to do so in the most general terms, but practical detailed advice anticipating the legal consequences will be both extremely complicated and hedged about with uncertainty. the purpose of this article is to draw attention to the fundamental underlying uncertainty which arises from the traditional shape of english law in this area. it is apparent that without positive rules the basic law of contract inevitably presents an insuperable obstacle to 'safe' strike action. yet many legal commentators, coming as they do from an examination of the history of the question in the courts, reject radical change. they are right, as we shall see, in indicating that such change is likely to be beset with a number of problems but they are not really problems that cannot be overcome provided that a comprehensive approach is adopted and protected from erosion by the inevitable flow of litigation. for that reason it is important first to look at what is done in practice and on what assumptions. strikes and contract in practice although, because of the diversity of employment, it is never possible to put forward a completely accurate account of what happens in practice there are some fairly clear fundamental 'rules' as to what the parties to industrial conflict traditionally expect. at the heart of the matter is the determination of the workforce, as a group and usually led by a trade union, to put pressure upon an employer to change his ways by withdrawing labour. the object in the vast majority of strikes is a 'trial by strength'. the economic fortitude and the moral resolve of both sides will be tested. the workers through the trade union are seeking an improvement in the contract position of its members, the employer is wholly or partly resisting this. it immediately becomes obvious that if all the variations are at this stage incorporated into the equation the exercise of analysis gets completely out of hand. there are, for example, a range of actions that apply similar pressure without going as far as a strike; some strikes are only indirectly connected with terms and conditions of employment, such as the attempt to have a dismissed colleague, thought to be unfairly treated, reinstated; action can be taken abruptly or with a semblance of legality honouring the spirit of the contract of service by giving 'strike notice', or making the intention clear by holding discussion of the problem at length with the employer. 144 the mythical contract of employment yet the underlying attitudes are consistent and clear in the vast majority of cases. the workers, with a genuine feeling of injustice (again to talk of political and other motives at this stage unnecessarily blurs the issue), exasperated at the inflexibility of the employer (again 'wildcat strikes' have to be acknowledged as a considerable feature of the scene but require separate treatment as excesses whatever the rules), are prepared to risk their future employment prospects by strike action. they are testing the employer's power and resolve, just as the employer in many cases may be deliberately delaying improving the contracts of service until he sees 'a pressing need to do so'. the workers, believing that they have a genuine grievance, which may of course not necessarily be soundly based, plainly expect the trial of strength to result in such improvement in their contractual rights. although there will always be militant workers and enthusiastic trade unionists who, firmly wedded to the 'justice' of their cause, regard compromise as 'sell out', compromise is the most likely outcome of these battles of will to such an extent that it may be said to be the objective. indeed the claim will often recognise this by being pitched higher than the expectation. another set of variations, fatally attractive to the legal commentator, arises from the form of the strike. it may be 'wildcat', that is to say taken by a group of extremist workers without regard to any machinery available for settlement of disputes; it may be 'official' but taken without regard to notice to the employer; or it may be initiated only after the period of notice in the contract of employment has been allowed to lapse. each variation, and there are many others, has its own legal conundrums, with precedents which tend to be sparse, contradictory and 'on their own facts'. it is a morass to be avoided where an overview is sought. the lack of clarity in the industrial relations 'rules of engagement' the phrase is used in its military rather than employment sense has always been fuel for political debate, much of it extreme and devoid of reality. reformers, believing that they are dealing with a legal topic, soon find themselves in a veritable slough of despond or a fascinating logical exercise, according to taste. it will be always so unless there is a clear underlying consensus on what is sought. those who seek an end to disruption ignore history, ignore the fact that there are bad, ruthless employers ready to exploit and above all they ignore the fact that industrial relations is dynamic and will by the very process of the lapse of time produce problems that require attention to and revision of the contract of employment. indeed it is interesting to note that the need for change will be felt more widely by the employer than the worker, who will tend to concentrate upon a narrow range of terms such as pay and hours of work. equally those who would see a general 'right to strike' are reluctant to admit the necessity for a system that seeks to ensure as far as possible that change is achieved as peacefully as possible and tend to reject, as derogation, procedures or interventions by third parties which seek to ensure that open strife occurs only where it is unavoidable. strikes, however regulated, should be regarded as pathological whereas some would wish to see them as an important feature of a progressive system. 145 the denning law journal that accepted, it is relatively simple to devise a sensible outline for the relationship. it would involve, as can be found in most industrial countries, a legally binding collective agreement of reasonable length practice would favour one or two years. that contract would determine the principal, general terms and conditions of workers without inhibiting a second level of group or individual terms being added as agreed. it would end on the due date and there would be a set period, prior to that date set aside for negotiation. that period would be subject to outside constraints the need to use, where appropriate, third party intervention and so on. if the matter remained deadlocked, then strikes would be permitted, within a framework of safeguard and controls such as ballots and protection of essential services. one of the weaknesses of legally binding collective agreements of a set term is that they tend to inhibit change. circumstances will force either side, at any time, to feel that it would be wrong to wait until the contract ends for revision of some of the terms of the agreement. here the british problems come to the fore. it might be felt necessary that the 'end of contract' position could, in proper circumstances, be put into play to allow action against refusal to amend working practices enshrined in the collective agreement where the employer's business would be under real threat without change, or to allow an allegedly dangerous practice introduced into a workshop. both might be felt to need action before the collective agreement allowed it. once that is accepted, the individual contract of service has to be so constructed as to support that system, rather than provide a separate method of challenge to it. the law has so far under the present rules made no clear effort to achieve this co-ordination, presumably because the matter has never been seriously addressed in this way. the law not surprisingly the basic assumption is that the parties to the employment contract have set out the principal terms they deem to be necessary. yet this is rarely so and great reliance is placed upon terms applied by implication, often under the guise of 'custom and practice'. for example, the employer on occasion will have no work for the employee and 'lay him off'. such a situation is often covered in a collective agreement, as the relevant trade union attempts to give some limited measure of protection to its members, which will by incorporation form part of their contracts of service. failing such provisions the common law position depends upon implication by the courts of a term and can be said to be 'unclear' .17 this lack of clarity cannot be allowed to pass without the remark that it is an outrageous lacuna in the law which 'the law', whatever that might be; has 17. see, e.g. , the discussion in smith & wood, industrial law 4th ed., at p.389 et seq. on layoff and short time a typical 'custom and practice' area. 146 the mythical contracf of employment failed to fill. to leave it to the parties, well knowing that they are not likely in very many cases to give it attention, calls out for a legal rule rather than a post hoc implication of a term.18 it is becoming less and less satisfactory to say that the matter can be left to collective bargaining as the number of workers covered declines. the same uncertainty applies to strikes, except that it is much harder to imagine the courts implying a contractual term giving some measure of contractual protection to the striking worker. indeed wedderburn says "in britain it is rare to find they have not occasioned breaches of contract". 19 the widespread use of strike notices has no marked impact on the legal position despite their common use. again in wedderburn's words, "there is no belief more widespread, more reasonable, but legally more erroneous, than that held by many managers and most workers that a strike notice, equivalent in length to that needed to end the contract, makes industrial action lawful."20 individual precedents are oflimited value since they arise in special situations and concern a contract shaped personally by the parties. thus the most recent case to look generally at the problem, concerned the right to a redundancy payment that would depend on there being a continuing contract, despite a strike. mter a review of the precedents it was accepted that going on strike could be treated by an employer as a breach of contract, irrespective of strike notice having been given. the possibility that the contract should be regarded in those circumstances as suspended was put to the court but rejected. morgan v. fry the concept of the suspended contract forms an important part of the earlier case of morgan v. fry.2j there had already been a recognition by lord devlin in rookes v. barnard 22that in reality the striker hoped to keep the contract alive for as long as possible. this point was developed by lord denning. the crux of the case was the effect of the strike notice, ofa week's duration, that had been given. it had indicated an unwillingness to work with non-union labour. in a previous case, lord denning had dealt with a similar situation and had considered that such a notice on the part of a trade union official was a threat to induce the members to break their contracts and was intimidation of the employer. although logical, lord denning saw the flaw saying "if that argument were correct, it would do away with the right to strike in this country." he took the view that for over 60 years there had been a right to strike provided that sufficient notice was given. he 18. for a fairly recent example, seepuuick v.john wrighr & sons (blackwall) ltd. [1972] i.c.r. 457. 19. the worker and rhe law 3rd. ed., at p.191. 20. ibid. see, supra, n. 19. 21. [1968] 2 q.b. 710. 22. [1968] 2 q.b. 710. 147 the denning law journal cited instances to be found in reported case law.23 lord denning set out clearly the legal basis for his decision: "the men can leave their employment altogether by giving a week's notice to terminate it. that would be a strike which would be perfectly lawful. ... the truth is that neither employer nor workmen wish to take the drastic act of termination if it can be avoided. the men do not wish to leave their work for ever. the employers do not wish to scatter their labour force to the four winds. each side is, therefore, content to accept a 'strike notice' of proper length as lawful. it is an implication written into the contract of modern law as to trade disputes. if a strike takes place, the contract of employment is not terminated. it is suspended during the strike and revives again when the strike is over." this view was, to say the least, controversial. although davies lj appears to have agreed on the point with lord denning, russell lj said: "i would not go so far as to say that a strike notice, provided the length is not less than that required to determine the contracts, cannot involve a breach of those contracts, even when the true view is that it is intended while not determining the contract not to comply with the terms or some of the terms of it during its continuance." lord denning's view did not prevail. it did not even get a warm welcome. the leading writer on the contract of employment, freedland, said "the view of lord denning is questionable upon historical grounds, though defensible upon policy grounds."24 not surprisingly in a legal text, "historical grounds" means what is to be found in the reports rather than how employers generally behaved. there had been a rejection of the view, later put by lord denning, in parkin v. south hetton coal co. ltd .. 25lord wedderburn, having looked at the complexity of such a rule in his evidence to the donovan commission, took the view that denning's approach had too many complexities to be workable. his conclusion, in his text book, is that it was "a bold if misconceived effort to invent a doctrine whereby, in the modern law of trade disputes, a term is implied into contracts such that, after a strike notice, the contract is suspended during the strike and revives again when the strike is over." this is difficult to reconcile with the further expression of opinion that "even so, he was right to say there cannot be a right to strike without 23.allen v.flood [1898] a.c. i;white v.riley [1921] i ch. 1cases which were not disapproved in rook~s v.barnard. an inadequate notice would not have this effect according to two irish cases: cooper v.mlllea andors [1938] l.r. 749 and riordan v. butler and ors [1940] i.r. 347. the notice inrookes v. barnard was also of inadequate length. 24. the contract of employment, oxford (1976), at p.l03. 25. (1907) 97 l.t. 98. 148 the mythical contracr of employment some doctrine superseding the employment contract."26 the difficulties referred to by lord wedderburn are set out in paragraph 943 of the donovan report. they appear on reflection precisely the sort of difficulties of detail that are inevitable where a rule oflaw is meant to apply to the infinite variety of employment contracts. there is no doubt that it is true that "considerable technical difficulties would be encountered". the law seems to live with technical difficulties, as the case law on unfair dismissal indicates. indeed, unless it is determined to allow the application of principle, complexity inevitably flows from the attempt to apply a tightly drafted 'law' to a multiplicity of varying facts. in conclusion the commission felt that the undoubted complexities meant that "a unilateral right to suspend a contract of employment should not be introduced except after prior examination of the whole problem and its possible repercussions by an expert committee." current position the failure to follow this up has not had too great an effect because of an important rule in unfair dismissal. it has already been explained that where strikes were settled it was usual for the employer and trade union to agree that the workers would be taken back without penalty, such as loss of seniority or continuity of employment for various purposes. the rules of unfair dismissal assisted in this process. fairness dictated that where a strike had taken place and the disagreement had been settled there should be no discrimination against individuals, whether as 'ringleaders', 'activists' or whatever. this was enshrined in the original rules laid down by the industrial relations act 1971 and is now to be found in s. 620fthe employment protection (consolidation) act 1978, amended by the employment act 1984. a claim can be brought unless the employer has dismissed all those taking part in the action at the same establishment and has not offered reengagement to any of them within three months of the date of their dismissal. this rule applies whether the action was official or unofficial. obviously the inability to target individuals was a fetter on the way some employers would wish to act. in its latest green paper, unofficial action and the law,21 the government has announced its proposal to repeal this rule and to re-inforce the employer's position by providing that the statutory immunities will not be available in respect of industrial action the reason for which is to bring pressure on an employer in support of anyone dismissed while taking part in unofficial industrial action. in one of the 'headline' disputes, that between the printing unions and the murdoch newspapers it was disclosed by a newspaper 'leak' that the employer had been advised of his right to dismiss all his workforce without fear of compensation provided none were re-engaged. since the plans of the employer involved recruiting at least a number of workers, not being members of the print unions, it . 26. the worker and the law, at p.192 el seq. 27. cmnd. 821, depanment of employment, october 1989, chapter 3. 149 the denning law journal was consistent with his aims to follow this advice. where, however, an employer could not consider losing all or most of his workforce, such action was not practical. now, however, it is proposed that the employer shall have a free choice as to which of the strikers he will refuse to continue in his employment. the threat will no doubt prove to be a powerful restraint on strike action. conclusions there can, at the present time, be little general agreement as to the desirable position. few would support an unfettered right to strike, many would want to see striking regarded as a serious challenge to the employer, not to be lightly used, whereas too many appear to regard any rules that make striking difficult or even hazardous as beneficial. these views are held against a background oflaw that is, it can be said without exaggeration, unclear, exceptionally complicated, and illogical. it would be, in many situations, hazardous to speculate how the courts may subsequently analyse and reactto any particular set of actions. this is no doubt one of the reasons for the hesitation of the donovan commission in attempting to suggest a remedy. it is clear that the idea that the contract be regarded as suspended merits further consideration. the changes in the law of strikes, especially the requirement of a strike ballot as the basis for protection, make it easier to contemplate extension of clearer legal consequences. it can hardly be expected that an ordinary worker, asked by his union to strike on say a simple matter such as a disputed level of pay rise, can contemplate that such action should lead to a loss of his job. indeed it is unlikely that he will be dismissed, but now that he lacks almost any protection his position must be prudently regarded as precarious. judges such as lord devlin and lord denning, who have the reputation of considering the impact of the law, have, as has been mentioned, both indicated that suspension of the contract of employment more nearly describes the reality of the situation. such suspension need not be of unlimited duration. it can be refined so as to take into account the difficulties foreseen by the donovan commission. it can be limited to meet the objections of those who may see it as an open ended 'right to strike'. the time, however, has surely come to look again at denning's bold, and perhaps not misguided, opinion. 150 a question of causation: knowing assistance and the "duty to inquire" simon baughen* after the decisions in agip (africa) ltd. v. jackson and others i (agip) and lipkin gorman v. karpnale ltd. and another2 (lipkin gorman), dishonest assistance in a dishonest breach of a fiduciary relationship seems to be what is required to establish liability for knowing assistance.3 in assessing the state of a defendant's knowledge reference can be made to the five "baden" categories of knowledge. 4 the first three categories indicate dishonesty: (1) the defendant had actual knowledge of the fraud (2) the defendant wilfully shut its eyes to the obvious, (3) the defendant wilfully and recklessly failed to make such inquiries as an honest and reasonable man would make. the last two categories indicate only negligence: (4) the defendant knew of circumstances which would indicate the facts to an honest and reasonable man, (5) the defendant knew of circumstances which would put an honest and reasonable man on inquiry. what is less clear, however is when the relevant "dishonesty" will be found on the facts. this article seeks to examine two areas of uncertainty arising out of the question of causation. the first concerns a defendant who suspects, but does not actually know, that it is giving assistance to a dishonest scheme but dares not seek clarification for fear that its suspicions might be confirmed. can such a defendant argue that it is not liable for knowing assistance on the grounds that any questions it had asked * lecturer in law, the university of bristol. the author wishes to thank mrs. helen norman of the university of bristol who kindly commented on a previous draft of this article. the views expressed in the article are those of the author alone. i. [1991] 3 w.l.r. 116. 2. [1991] 3 w.l.r. 10 (hl). of particular relevance to the issues addressed in this article is the judgment of the court of appeal, [1989] i w.l.r. 1340. 3. the court of appeal's decision, given by fox l.j., in agip must qualify this assertion to some extent. at p. 131 g he refers to the relevant test of knowledge as that set out in selangor united rubber estates v. cradock (no 3) [1968] i w.l.r. 1555, namely, "circumstances which would indicate to an honest and reasonable man that such a [fraudulent] design was being committed or would put him on inquiry as to whether it was being committed". however, his subsequent analysis of the facts makes it clear that dishonesty is the relevant factor. at p.l13 g he states, ''the question is whether [they] acted honestly". 4. see baden. delvaux and lecuit v. societe general pour favoriser ie developpement de commerce et de [,industrie en france s.a .. [1983] b.c.l.c. 325. 27 the denning law journal would have been answered in such a way as to allay its suspicions? the second concerns the extent to which the plaintiff's own negligence can bar or limit its right to sue a defendant for knowingly assisting the fraud. 1. the "duty to inquire" and causation. (a) a difference of approach in agip and eagle trust? this issue appears to be subject to two differing views at first instance (the issue was not considered in fox l.j.'s judgment in agip). in agip millett j. strongly rejected the idea that a dishonest defendant could raise the defence that any further inquiries it might have made would have failed to flush out the fraudster. the defendant's argument was based on the judgment of peter gibson j. in baden5 which discussed the position of a party who is put on inquiry but fails to inquire and concluded that the plaintiff must prove that the inquiry would have disclosed the truth; the burden lying on it to prove a causal connection between the failure to make inquiry and the loss. millett j. vigorously rejected the idea that this argument had any relevance to cases of dishonesty as opposed to constructive notice. in his view the argument "derive [d] from a misunderstanding of the basis of the constructive trustee's liability. he is not liable for failing to make inquiry, but for the misapplication of the plaintiff's property. he is under no duty to make inquiry, his only duty is to act dishonestly. if he makes inquiry, he does so for his own protection. if he does not make inquiry, the loss is not caused by his failure to do so but by his participation in the misapplication of the plaintiff's funds. he is liable only if he acted with knowledge; and this must be judged in the light of all the circumstances known to him and any explanation actually given to him. but it is not, in my view, to be judged considering the hypothetical explanations which might have been given to him ifhe had sought them. if it were otherwise, his liability would depend on whether the fraudster would have been sufficiently inventive to be able to supply a plausible explanation if asked for one. in the present case it would depend on whether the defendants should be assumed to have directed their inquiries, which ex hypothesi they did not make, to mr. zdiri [the fraudster] or to his superiors. such considerations are or ought to be irrelevant. "6 in contrast, vinelott j. in eagle trust pic v. sbc securities ltd. appeared to suggest that such a line of enquiry is relevant to the issue of dishonesty. 7 dealing with the allegation that dishonesty was borne out by a failure to make inquiry, he said: "savory milln may have felt some anxiety, and even entertained some suspicion, as to how ferriday had managed to arrange for the £13.5m to be paid by anser 5. ibid. 6. supra.n.1 at pp. 295 g-296 c. 7. [1992] 4 all e.r. 488. 28 a question of ca usa tion: knowing assistance and the' 'duty to inquire" on his behalf. but it is to my mind going altogether too far to say that any honest and reasonable man would either have inferred that, despite the denial to eagle's solicitors, he was indemnifying the sub-underwriters or some of them on behalf of eagle or that the £13.5m was eagle's money which had been misappropriated by ferriday in a gross breach of his duty as a director and in contravention of s.151; or that an honest and reasonable man would not have applied the money in discharge of the liabilities of earnshaw haes and ferriday until he had been satisifed by inquiry that the moneys were properly paid. it is not easy to see what further inquiries savory milln could have made. if inquiry had been made of ferriday and he had been innocent of any wrongdoing, he might well have resented the inquiry; and if guilty, it is hardly likely that, faced with a second inquiry, he would have confessed at all. and . . . if he had refused to answer, what further inquiry could savory milln have made? it would hardly have been open to them to invite eagle to play detective and investigate their own chief executive. "8 (b) the facts of agip. at first glance, the above passages suggest a conflict of judicial opinion as to the relevance of causation and the duty to inquire. however, a closer examination of the facts of those two cases suggests that this conflict is more apparent than real. of particular significance, it is submitted, is the state of the defendant's knowledge at the time the so-called "duty to inquire" arose. in a gip the fraud arose when mr. zdiri, a senior officer of the plaintiff, fraudulently altered the name of the payee on a payment order, after it had been signed, in favour of baker oil. baker oil had recently been incorporated and its two directors and shareholders were a partner of jackson's and an employee. thereafter the money was transferred to jackson's account and was eventually transferred overseas to various recipients. at the time jackson's effected these transfers, millett j. stressed that they already had the requisite guilty knowledge, therefore any "duty to inquire" would strictly be a misnomer. the purpose of any such enquiry would be purely for jackson's own protection. millett's finding was based upon the following facts. for the two years preceding the fraud some us$ 10m had come from the plaintiffs to kinz, via companies set up through jackson's, which ran a jewellery business in france. jackson's instructions in these transactions came from the recipients and not the plaintiffs. "they knew of no connection or dealings between the plaintiffs and kinz or of any commercial reason for the plaintiffs to make substantial payments to kinz. they must have realised that the only function which the payee companies or euro-arabian performed was to act as "cut-outs" in order to conceal the true destination of the money from the plaintiffs. they must also have realised that 8. ibid. at p.511 a-d. 29 the denning law journal the only purpose in having two' ,cut-outs" instead of one was to make impossible for investigators to make any connection between the plaintiffs and kinz without having recourse to lloyd's bank's records; and their object in frequently replacing the payee company by another must have been to reduce the risk of discovery by the plaintiff."9 moreover, a letter of 14th august, 1984 from knapp-fisher showed that mr jackson was concerned at the possibility that the plaintiffs might obtain disclosure of lloyds bank's records, discover what had happened to the money and try to recover it. against this background, millett j. found that jackson and griffin' 'obviously knew that they were laundering money. they were consciously helping their clients to make arrangements that they were laundering money . . . they must have realised that their clients might be involved in a fraud on the plaintiffs."10 although jackson and griffin never gave evidence, the external evidence, such as the knapp-fisher letter, pointed to the fact that they may have believed that the fraud being committed was a scheme to avoid tunisian exchange control, possibly with the connivance of the plaintiffs. however, millett j. attached no significance to the fact that jackson and griffin may have got the details of the fraud wrong. what mattered was that they must have known that the banking arrangements set up through themselves could only have been established with a view to perpetrating a fraudulent purpose. this would be enough to establish the necessary dishonesty on their part to make them liable to the plaintiffs in an action for knowing assistance. millett j. also went on to mention the fact that the defendants never made any enquiries or took any steps to satisfy themselves that the arrangements had the plaintiffs' knowledge and approval. in the light of his subsequent comments on the issue of causation, however it is clear that he did not regard this factor as being essential for establishing dishonesty. effectively, millett 1. was treating this as a "baden 2" case rather than a "baden 3" one. despite fox l.j.'s unfortunate use of the selangor test for knowledge, it is clear that he regarded the crucial issue as being whether or not the defendant had acted honestly. in this connection he concluded that millett j. rightly carne to the conclusion that the defendants must have known they were laundering money and "were consequently helping their clients to make arrangements to conceal some dispositions of money which had such a degree of impropriety that neither they nor their clients could afford to have them disclosed. "11 like millett j. he placed particular emphasis on knapp-fisher's letter to jackson's of 14th august, 1984: "mr. jackson and mr. griffin were being given advice on the possibility that a payment or payments might involve a fraud on agip. having got to that point it seems to me that persons acting honestly would have pursued the matter with 9. [1989] 3 w.l.r. 1367 per millett j. at 1390. 10. ibid. ii. supra. n.l at p.133 a. 30 a question of ca usa tion: knowing assistance and the' 'duty to inquire" a view to satisfying themselves that there was no fraud. but there is nothing to show that they did that. they made no inquiries of agip at all. they let the matter continue." 12 like millett j., fox l.j. referred to the defendants' failure to make inquiries, but unlike millett j., did not go on to examine how critical that failure was in establishing dishonesty in the defendant. (c) the facts of eagle trust in october 1987 the plaintiff company made a take-over bid for a group of companies. the defendant company agreed to underwrite the cash alternative and the rights issue which formed part of the offer. the defendant sub-underwrote its liability, using a list of underwriters introduced by plaintiff's chief executive, mr. ferriday. the list included ferriday himself as underwriting 25.5 million shares. the plaintifflater claimed that the defendant ought to account for £13.5 million paid under the subunderwriting arrangements. it alleged that mr. ferriday had fraudulently arranged for its money to satisfy obligations, including his own arising out of the subunderwriting, and that the defendant ought to have known of this or have been put on enquiry. in this connection two particular facts were relied on. first, as mr. ferriday's wealth was largely tied up in eagle, after "black monday" it ought to have been clear that he would have lacked the funds necessary to satisfy his sub-underwriting obligations. secondly, mr. ferriday had arranged the sub-underwriting list and had altered it at a late stage. the allegation was made that, in the case of martin boston & co.lmartin boston, the list was changed after they had denied they were liable and their obligation had been taken over by ferriday. however, when asked by eagle's solicitors, mr. ferriday had denied acting on behalf of that firm. in contrast to the facts in agip, this factual base on its own would be insufficient to establish that the defendant must have known that mr. ferriday was discharging his liabilities out of eagle's money; especially in the light of mr. ferriday's earlier denial to eagle's solicitors. the "duty to inquire" serves a different function than on the stronger facts of agip. there it served only as a possible means whereby a defendant might extricate itself from pre-existing guilty knowledge. in eagle trust it serves as a means of establishing whether that guilty knowledge ever existed, a potential "baden" 3 case. this, therefore, provides a possible basis for reconciling the two decisions. causation will be relevant, but only if the "duty to inquire" is itself necessary to establish guilty knowledge by the defendant. on closer examination, however, this distinction is unconvincing. in eagle trust, the defendant was not dishonest and therefore was not liable for knowing assistance. a key factor in this finding was ferriday's earlier denial to eagle's solicitors. the issue is not affected by the question of what additional information further inquiries 12. ibid. at p.134 e. 31 the denning law journal could have revealed. it is very difficult to distinguish "baden 3" knowledge from "baden 5" knowledge and it is submitted that millett j. was correct to state in agip that issues of causation should only be relevant to questions of constructive notice which have no place in the fraud based action of knowing assistance. moreover, to treat as relevant this issue of causation runs the risk of diluting the deterrent effect of the action on potential fraudulent assisters. it is unfortunate that this issue has yet to be clarified at court of appeal level. fox l.j. ignored it altogether in a gip and the state of the pleadings in lipkin gorman precluded any serious examination of what facts could constitute dishonesty. what dicta there are in that case tend to confirm the muddled thinking identified by millett j. in agip. may l.j., criticising selangor, stated that "it was wrong to equate the duty to inquire where there has been fraud and the bank is proved to have known of it with that where all that is being alleged is that the bank has been negligent". j3 with respect, if the bank is proved to have known of the fraud, that disposes of the issue and any question of a duty to enquire becomes irrelevant. however, the words used by may l.j. identify the key problem with using a "duty to inquire" to establish dishonesty, namely that it tends to confuse dishonesty with mere negligence. this confusion is illustrated by fox l.j. ' s use in a gip of the selangor test which covers both negligence and dishonesty, whereas his subsequent analysis of the facts is directed entirely towards dishonesty alone. it is submitted that the law in this area would be clearer if the concept of a "duty to inquire" were to be abandoned altogether and knowledge categorised broadly as either dishonest or honest but negligent. 2. causation, contributory negligence and "clean hands". in lipkin gorman cass, a salaried partner in a firm of a solicitors abstracted money from its client account to fund his gambling habits. the solicitor sought to recover the money from either the bank or the playboy club where the gambling had taken place. the claim against the bank was framed as one for breach of a duty of care owed to the solicitors as its clients in both contract and tort and also as a claim for knowing assistance. alliott j. found for the solicitors in both claims, but limited the amount of their recovery to the losses occurring in the period from the breach of duty by the bank to 1st october, 1980 by which time cass's fellow partners should have discovered the full extent of his embezzlement for themselves. by that time one of cass 's partners had confronted him with a false claim for travel expenses and had accepted cass's explanation that that was all that was owed. however, cass stayed on as a signatory and from that date was able to steal two further sums of £2, 102.05 and £ 120,698.61. from that date, their contributory negligence was 100 per cent, so barring the contractual action in which liability was the same as in negligence, independently of the existence of any contract. the knowing assistance claim was also barred on 13. [1989] 1 w.l.r.1340atp.1355h. 32 a question of causa non: knowing assistance and the' 'duty to inquire" the grounds that it would be inequitable to give them any relief. may l.j. endorsed this approach on the grounds that the plaintiff could no longer come to the court with "clean hands" .14 it is submitted that this approach is quite wrong. there is no equivalent to contributory negligence in actions for breach of trust. the nearest equivalent is a defence that the plaintiff consented to the breach of trust. this patently does not cover the plaintiff s conduct in lipkin gorman. nor does the doctrine of "clean hands" operate against a negligent plaintiff. in williams v. staite misconduct by a licensee towards the freeholder did not affect its claim to an estoppel licence. is some element of dishonesty in the plantiff is required before it ceases to have "clean hands" as with the attempt to deceive the court with forged documents in j. willis & sons v. willis, another licence case. 16 on the facts of lipkin gorman it is easy to see how both alliott j. and the court of appeal came to the conclusion they did. on the evidence of banking practice in that case, some form of dishonesty would be required to establish a breach of duty of care in contract and tort. therefore it is easy to assimilate that liability with knowing assistance and to conclude that if contributory negligence operates on one action some equivalent must be found for the other. the actions are not identical, however, but only appear to be so because the effect of the evidence as to banking practice is that a bank which honours its mandate can never be negligent unless it is also dishonest. the extended concept of "clean hands" is quite inappropriate to an action based on the dishonesty of one who assists a fraudster. for instance, if in agip the plaintiff had been careless in allowing mr. zdiri to perpetrate his fraud, neither of the defendants would have been any less dishonest in assisting him. to curtail the plaintiffs recovery would be to punish it for carelessness and allow a fortuitous escape to the fraudster and accomplices. conclusion two sets of muddled thinking have been going on in the knowing assistance cases discussed above. the first is to allow the similarities between' 'baden 3" and "baden 5" knowledge to blur the boundaries between dishonesty and negligence and allow questions of causation relevant to the latter issue to intrude onto the former. the second is the evidential quirk in lipkin gorman that a bank honouring its mandate can never be negligent and honest. this has led both alliott j. and the court of appeal to assimilate the bank's contractual liability to its customer with its liability for knowing assistance. however, the basis of these actions is quite different and to seek an equivalent to contributory negligence in knowing assistance is not required on grounds of consistency and has the undesirable effect of diluting any deterrent effect the action for knowing assistance may have. 14. ibid. at p.1360 a. 15. [1979] ch. 291. 16. [1986] 2 e.g.l.r. 62. 33 her majesty's judge professor philip s. james * with but one exception when our judiciary permit themselves to be greeted as "her majesty's judges" political reality means that it is a pipe dream from the past. that one exception is'lord denning (to whom our law school owes so much) and the reason for it is that by awarding him the order of merit her majesty has marked him for her own. it was many years ago that an insignificant person first caught a distant glimpse of the future judge. how peaceful now it seems; remembered so vividly. it was a summer's day, the sum was shining through the windows of a college library. as yet an undergraduate, this person was browsing there. steeped, as he was in the myths and anomalies of legal history, he chanced to come upon a "case note" about a long forgotten case. here was a contributor who had a contagious way of conveying his emotions to his reader and it was plain that he was angry. the object of his indignation was that he had smelt an injustice. it seemed that some judge or other had denied a claim based on unjust enrichment under the erroneous impression that the implied promise then considered necessary to support such a claim had to be a valid legal, rather than a fictional, one. which had never really been the case.l the unknown author of that note was a barrister called "a.t. denning" and he had made a conquest. if anybody ever had the magic of "charisma" it is lord denning. he seems in some strange way to dwell apart and, looking down on life, to see it "steadily and see it whole.,,2 yet, in the world of everyday reality he by no means stands aloof: a friend of all the world if they will let him be he is easy of approach, likes to take people to himself and actually encourages them to call him "tom." constrained to say a little of a lot let us now try to tell of him . • emeritus professor, the university of buckingham. i misunderstood by lord sumner in sinclair v. brougham [1914] a.c. 398. the fictional ~romise of indebitus assumpsit was invented in order to attract the king's bench jurisdiction. matthew arnold: sonnet to a friend. 179 denning law journal here was a judge with an enviable ability to express himself lucidly, elegantly and simply.3 he could convey the most complicated thoughts to the stupidest of people. but that was not all of it. his style of writing was not only literary but also to a high degree dramatic. it followed that he was able to pierce through the distorting mirror of the rules of evidence to paint a sensitive, lively, and sympathetic picture of the events of any case in which he was involved. nobody forgets the pathos of the description of the railway disaster on the "bluebell line," and in quite another way in lane v. holloway he brought a colourful incident to life.4 "on july 1st 1966," he began, "the peace of the ancient borough of dorchester was disturbed. the reason for that was that the plaintiff, after returning from a public house at 11.00 p.m., was talking to a friend in the yard off the high street ... " as for what was to follow the report of the case makes good reading. in the second place it did not take long to discover that there were two dennings. since the recent furore of the affaire clinton it may by now have been forgotten that some years ago there was another affair which was incongruously staged in cliveden the former stately home of conservatism. it was there that another uninhibited young lady called christine keeler became entangled with some political celebrities, thereby providing a bonanza for the press. in the course of this titillating rumpus the right honourable lord denning, master of the rolls, was deputed to examine miss keeler in the course of his subsequent inquiry. never was there a more ill-assorted pair. a day or so after his lordship had interviewed miss keeler it happened that he had consented to speak at a students' dinner. when it came to speeches, with the solemnity to be expected of such a personage, the master of the rolls started by address his audience with the customary homily about professional behaviour considered appropriate upon such occasions. then suddenly there came a characteristic twinkle in his eyes and the grave and learned personage gave way to the impish one. out came the "tom-boy" in him. groping in his tailcoat pocket he dragged a copy of the daily mirror and brandishing it excitedly above his head, yelled, "read this! the mirror is telling us what it thinks about me and christine keeler!" which brought the house down. years later we, of buckingham, presented lord denning with the only gift we have to offer; our honorary degree. in the course of the ceremony the unwary fellow who was presenting him chose to compare him with lord mansfield to which, when it fell to him to reply, the newly fledged graduate retorted, "i hesitate to remind professor x of 3 his exposition of the stevenage case (franklin v. minister for town & country planning [1948] a.c. 87) in freedom under the law (stevens & co., 1949) at pp.120-121 is an excellent example of it. 4 [1968] 1 q.b. 379. 180 her majesty's judge the story of the meticulous apothecary who put a notice in his shop window "we dispense with accuracy." turning from levity to the core and essence of lord denning's lifework, one does not know, though may suspect, that like many of his contemporaries the young tom denning would have been reared upon sir richard burton's inspiring lines: "do as thy manhood bids thee i from none but self expect applause i he noblest lives and noblest dies i who lives by none but self made laws."s that was denning. others might be content to hide their own discretion beneath a bramble bush of rules, but he despised such subterfuge. like the all-powerful medieval chancellors before him, guided only by the promptings of his conscience, he was fearlessly prepared to ride roughshod over, or else to circumvent, any rules of law which seemed to him to obstruct the path of justice. by acting upon that principle he was to scandalise and alienate the legal establishment who seem actually to believe that it is possible to administer justice "according to law." in support of this untenable proposition they insist that it is more important for the law to be certain than it is for judges to be just. but nothing can be certain until it has occurred and no one can predict the outcome of a case until, the facts of it having been authoritatively ascertained, judgement has been passed upon them. when will the lawyers learn that we live in a continuum? it took courage and conviction for one man alone to play the heretic but in his battle in the cause of justice denning was to be unshakeable. in central london property trust v. high trees house denning j. was to serve notice of his intentions.6 the plaintiffs in that case had gratuitously agreed to forgo rents due to them from the defendants in consequence of which concession the latter had extended a similar indulgence to tenants of their own. after a change of circumstance due to the ending of the war the plaintiffs were now having the effrontery to demand the repayment of those forgone rents. incensed by the fact that the defendants had remitted their own tenants' debts in reliance upon the plaintiff's waiver of their own, denning j.'s conscience told him that this was a flagrant breach of confidence which must not be countenanced at any price. but blocking the road to justice, ahead of him lay the arcane and tangled rules of contractual "consideration." not to be defeated, he skirted boldly around that obstacle by inventing what was to become known as promissory 5 the famous nineteenth century traveller, explorer, linguist and scholar. translator of the arabian nights. 6 [1947] 1 k.b. 130. is! denning law journal estoppel. this aroused a flutter in the dovecote. an upstart judge had used his own discretion to circumvent a settled rule of law! the next landmark in this inexorable career is his inaugural hamlyn lecture, freedom under the law/ in which the by-now lord justice denning takes freedom for the centre for his theme.s these four famous addresses are elegant, erudite and persuasive, but they do not tell all of the tale, and are sometimes economical with the truth.9 the reason for this is that the lecturer's mandate was to demonstrate the unique superiority of our common law. thus he plays the advocate, puts all his wares in his shopwindow and unblushingly conceals the rest. for instance, wisely eschewing the barons' charter (magna carta), he instances habeas corpus as the headstone of our freedoms but omits to remind his audience that that was designed rather to endow the monarchy with the monopoly of incarceration than to keep its subjects out of prison. when he extols the courageous part played by juries in the fight against oppression he mentions nothing of the fact that until the last vestiges of monarchical autocracy had gone, substantially with the sole exception of (f.w. maitland's) "wonderful, masterful" edward coke, there was hardly a judge who ever dared to raise a finger in protection of the subject. the lecturer's professional eclecticism does credit to his powers of advocacy. as for the after years it would be tedious to recount how our lord denning was to become master of the rolls. it is hardly necessary to tell england of how his fame was to spread around the world. go anywhere you please his name will be familiar to almost any lawyer worth the name. so it continues. only recently, the president and people of the french republic have generously admitted him to the highest order of the legion d'honneur an honour in the later years of his life in recognition of his youthful valour and participation in the kaiser's war. throughout his spectacular career two characteristics in particular stand out in him: his love of justice and his loathing of autocracy. many may remember how often from the bench he would complain about the welter of what a sixteenth century writer once deliciously described as the "stacks and shoals" of rules and regulations which were already pouring down upon our heads from the autocracy at brussels. from the first to last it was freedom that was his cry and, if memory serves right, his final speech before the upper house of parliament was devoted to warning our illustrious emeritus lady chancellor of the menace that was lurking in the single european act. another connexion we for our part should not 7 (hamlyn trust series, stevens & co., 1949). 8 one senses the influence of herbert spencer and dicey's masterly law and opinion in england in the nineteenth century (macmillan & co., 1905). 9 it was miss hamlyn's wish that the lecturers should tell the people of england about the superior virtues of the common law. 182 her majesty's judge forget how, like our former chancellor (and lord chancellor) lord hailsham, unselfishly and magnanimously lord denning stooped to nurture the tender seedling of our infant university. when, at length, weary of it, our lord denning turns away from the peepshow of this life it may be that there will be those who will say of him as it was said of the assassinated lincoln, "now he belongs to the ages." tired of patching up the cracks and holes and woodrot in the crumbling fabric of our ancient legal system it may be that someone in the coming century will decide that the time has come to scrap it and replace it with a new one. should that ever happen those entrusted with the task of making it might seek inspiration from the lifework of lord denning and if they should perhaps there might be two aspects of his judgements which would be particularly likely to interest them. in the first place they might note that denning preferred principles to rules and might conclude that that was because he realised that the field of application of a rule being less extensive than that of a principle from which it happens to be derived, a rigid application of a rule may easily result in denials of justice. it works like this. assume there to be a principle that people who have in their control such dangerous things as tigers, large accumulations of water or high explosives ought to be held strictly responsible if, by escaping, they cause harm. now assume, that a judge, having this principle in mind, by reference to the facts of the case before him, to formulate a rulelo to the effect that people who bring and keep upon their land anything likely to do damage if it "escapes" from that land are to be held strictly liable if it does escape and causes damage. next suppose a case where a worker in a munitions factory injured by the accidental explosion of shell claims against her employers in reliance upon above the rule. a rule-bound court will see no option but to deny her claim upon the ground that because the plaintiff was on the factory premises at the time of the explosion there had been no "escape" of the explosive from the "land" in question. i] strange, indeed, and "lawyerly": one step into the road outside the factory gate would have made all the difference. a breach of the principle and a denial of justice. again there is a universal principle as old as history itself to the effect that it is culpably wrong to cause harm to others, either physical or in 10 rylands y. fletcher [1861-73] all e.r. rep. i. 1 i read y, j. lyons & co. ltd. [1946j a.c. 156. one inveterate way of reconciling rules with principles is the trick (seized upon as early as the ancient roman priesthood) of distorting the meaning of words: midwood y. mayor of manchester [1905] 2 k.b, 597. 183 denning law journal respect of their fights to property. 12 based upon that principle the theft acts contain a complex set of rules intended to define it, but since to define is also to confine, the principle is inevitably wider than the rules. since no one can forestall the infinity of circumstance which will amount to what the laity rightly consider to be "stealing" there is thus here a yawning moral gap between principle and rules which presents an open invitation to miscreants. this becomes self-evident when it is reflected that, as with the larceny acts before them, so it has been with the theft acts. whenever a rogue takes advantage of the "gap" frenetic amendments have to be made to slam the stable door after the horse has bolted. perhaps it might be a better remedy for such injustices if the principle were to be enacted into law and the courts left free to apply it at their discretion. it could be that that was how lord denning saw things. justice cannot be guaranteed if it is administered "according to law." the second thing that might attract the reformers' attentions is that, considered as a whole, one tends to get the impression from his judgements that denning the judge is as sparing with his reasons as is denning the advocate with the truth. if that impression is correct it may be worth asking why he should have been so sparing. may it be tentatively suggested that it might have been this. a wise old man once advised a younger one never to give a reason for anything he did because, he said, to do so is only to invite an argument. and that old man was right. that advice applies to a judge as well as anybody else. it can be argued paradoxically that once he condescends to give a reason for his decision, by opening the door to argument a judge can encourage litigation which is the very thing he is there to discourage. perhaps it might have been the scholarl3 in the young tom denning that first inspired him by suggesting that it is neither reasons nor rules nor yet the ruling that follow them but only the million dollar question of what the judge will dol4 about that ruling that really matters. and, subject to safeguards against gross abuse of power, to make such orders as may seem best to strike a fair balance between the interests of the parties to the case and (overridingly) between those interests and such interests as they 12 at least as far back as simonides (556 469 b.c.). the principle is the familiar one of the general duty of care propounded by lord atkin in donoghue v. stevenson [1932] a.c. 562. but it is fascinating to note that, sensing the danger that he had brought the idea of law too near (to the lawyer) to the realities of life, lord atkin hastily proceeded to tum his principle back into an unintelligible rule related specifically to the specific duties of manufacturers. 13 he did brilliantly at oxford. 14 holmes' famous statement of a hundred years ago "the predictions of what the courts will do in fact ... is what i mean by law"( 1897) 10 harvard law review 457) is not about justice in particular but reveals the truth that the facts in life are more important to us than our ideas. devotees of samuel johnson will remember how he refuted berkeley on this point. 184 her majesty's judge share with the public as a whole. which, shorn of its olympian associations, is the pragmatic business of doing justice. much though we may dislike it,15and as they may try to conceal it, we are ruled by other people not be laws. by way offinal salute to denning (the reformer) it may be excusable to return to those reformers of the future. their agendum would be a full one of very many items which cannot be unumerated here, but curiosity suggests that among them there might be expected to be some or all of the following. whether in an advanced society it should be thought proper for the representative of authority to leave the formulation of the issues 16 and the conduct of a trial to be fought out between the parties, only intervening in order to ensure that the rules of trial by battle are respected? whether the time has come to do away with an incestuous sodality of bench and bar whereby promotion to the bench is substantially restricted to members of the latter?17 whether, being as different as is chalk from cheese, it is desirable that experience as an advocate should be considered the sole (or any) qualification for such promotion? whether now thatthough even by legal standards tardily it appears to be accepted that judges need some sort of training, it suffices that they should receive it both spasmodically and after, rather than before, appointment to the bench? what sacrilege is this? everybody knows that our legal system is the envy of the world! certainly in innate ability, legal expertise and integrity our judiciary are hardly to be bettered; but if they continue to rest content with the system that they operate there are some who never will be. ask of the simpletons or of the incorrigible peeping-toms who look with horror and dismay at the sparseness of the emperor's clothes. but come, having done our homespun best to sing the praises of this most famous man, now gaudientes, let us be ready to applaud him when, by a stroke of time's bat, he reaches his memorable "century." perhaps it might please him best if those of us who had the privilege of knowing him were to try to tell him what seemed to them the choicest of his many attributes. was it his clear-sightedness? his originality? his indomitable quest of justice? was it, as it was once said of the greatest of our english 15 why do courts lean on precedents (or upon each other)? why did the ruthless tyrant who sronsored the code of hammurabi attribute it to the superior authority of the sun god? i long before the death of caesar authority in the person of the praetor supervised the formulation of the issues and why should a judge, who ought to represent the monarchy as parens patriae, not bear responsibility for the conduct of a case? are we still haunted by the sranish inquisition? i tom himself might not have agreed with this. he used to say that the close association of bench and bar enabled the former to monitor the latter. he forgot that the common tradition was for the judges to have a separate inn. moreover, the increase in numbers now erodes his thesis. 185 denning law journal judges, the "jewel of his mind?" was it his powers of exposition? was it that literary ability of his of which he was so justly proud? was it his wit and charm? his courtesy? his moral courage? .. it could be that it was none of those things. it could be that it was his magnanimous humility, his sense of the pettiness and transience of life, that led him to behave towards the meanest of us as though we were on equal terms with him. perhaps, it might have been? and perhaps, after all, in this he was right. perhaps he really is just like all of ... perhaps ... perhaps he is ... but ... h . 18.... e is greater. 18 acknowledgements to samuel johnson's fickle hester thrale. 186 time-charter stowage clauses in a bill of lading contract* russell harlingt in the coral the court of appeal considered the mechanics and the effect of incorporating clauses 2 and 8 of the new york produce exchange [nype] form into a bill of lading contract. their deliberations were inconclusive, as the matter came before them on an appeal against an application for summary judgment. but their decision stands for a continuation of the line of authority in which the english courts have tended to favour the use of clauses in bills of lading incorporating the terms of charterparty i. the court ruled firm! y, however, that a charterparty clause which removes from the shipowner responsibility for loading and stowage and places it on the charterer will be given effect as a definition of the scope of the contractual service provided to the shipowner, in accordance with the rule in pyrene v. scindia.2 such a scope of responsibility clause will not be rejected in the context of the bill of lading for incompatibility with the carrier's obligations under common law or under the hague visby rules properly to load and stow the cargo. the facts and proceedings the coral was chartered on the nype form, clause 8 of which provides, in relevant part: " .. charterers are to load, stow, trim and discharge the cargo at their expense under the supervision of the captain ... " clause 2 ofthe nype form makes related provisions to the effect that the charterers are to provide the requisite dunnage and shifting boards but are to have use of any such materials already on the ship. a self-trimming bulk carrier, the coral loaded at durban a consignment of steel in sheets for trabzon in turkey under bills of lading issued by the charterer on behalf of the owner. the bills of lading contained a clause paramount incorporating the haguevisby rules and a clause stating: * balli trading ltd. v. afabra shipping co. ltd. (the "coral") [1993] 1 lloyd's rep. 1. t thomas miller p&i 1. see adamastos shipping co. ltd. v. anglo-saxon petroleum co. ltd. [1959] a.c. 133; the merak [1965] p.223; the annefield [1971] p.168; the rena k [1978] 1 lloyd's rep. 545. 2. infra. n.11 61 the denning law journal "all terms and conditions, liberties and exceptions of the charterparty, dated as overleaf, are herewith incorporated." the steel was loaded in two parcels, each in a different hold. a surveyor appointed by the shipowner's p&i club attended the loading at durban and found that all reasonable precautions had been taken in handling and stowing the cargo. both holds also contained other cargo bound for the intermediate port of diliskelisi. the diliskelisi cargo was duly discharged, but the steel sheet was not restowed. as a result it may have been left partially unsupported in the half-empty holds. on the voyage from diliskelisi to trabzon the ship ran into heavy weather (winds force 6 to 8) resulting in a collapse of stow, damaging approximately one-third of the steel cargo. the consignees brought an action against the shipowner and applied under order 14 of the rules of the supreme court for summary judgment against them on the ground that they had no arguable defence. sheen, j., gave the shippers liberty to sign judgment for damages to be assessed. he held that the shipowner's defence turned on a question of law, namely the interpretation of the charterparty clause when incorporated by reference into the bill of lading, which question could and should be determined on an application for summary judgment. he held that the clause meant only that the stowage would be performed by the charterer and did not amount to an allocation of responsibility for stowage as between the shipowner and the bill of lading holder. at the time, his judgment caused a frisson of apprehension amongst the legal advisers of shipowners, as appearing to presage a wave of applications for summary judgment in cargo claims. summary judgment and questions of construction the court of appeal reversed the decision of sheen j., for one principal reason: that the merits of the case ought not to have been determined on an application for summary judgment. the court agreed that if the interpretation of the charterparty clause had been in favour of the consignees, then the shipowner had not raised an arguable defence. but if the shipowner's interpretation had been correct, then further factual issues would have remained to be determined at trial: in particular, whether the ship was unfit to carry this type of cargo by reason of the shape of her holds, as alleged by the consignees. for this reason they held that the proper construction of the bill of lading contract ought not to have been determined on summary judgment. 3 the case is therefore authority for the proposition that a question of construction ought not to be determined on an application for summary judgment unless such determination will be finally dispositive of the case one way or the other. thus the court of appeal had to decide merely whether the shipowner had an arguable defence, and for that reason were guarded in their approach to the questions raised. 3. supra. pp.8-9. especially p.9 col. 1. 62 time-charter stowage clauses in a bill of lading contract the shipowner contended that clauses 2 and 8 of the nype form when incorporated into the bill of lading contract amounted to an agreement that the carrier would not be responsible for stowage. the consignees contended that the clause did no more than state that performance of the carrier's obligation properly and carefully to stow would be delegated to the charterer. adopting the analysis in scrutton, article 34, two groups of issues may be discerned: issues concerning the meaning of the charterparty clauses in the context of the bill oflading; and issues concerning the consistency of the incorporated clauses with the other terms of the bill of lading.4 it had been conceded by the consignees that the wide words of incorporation were sufficient to apply to clauses 2 and 8 of the charterparty. the meaning issues the general approach of the court to the "meaning issues" was set out by beldam l.j.: the clauses were ... directly germane to the shipment, cariage and delivery of goods . . . and such causes may be treated as incorporated even though the precise words may need some modification."5 in support of this he cited the miramar, which is commonly thought to be authority for the view that the house of lords had set its face against verbal manipulation. 6 although lord diplock (delivering the judgment of the house in that case) began by undertaking to clarify to what extent, "if any", such verbal manipulation was permissible, the only definitive pronouncement his judgment yielded is that set out in the footnote which merely establishes that there is no presumption in favour of manipulation. there are suggestions that he might have been inclined to allow verbal manipulation if there were a "business reason" to do s07. the court of appeal in the coral have lent support to that view of the miramar, for nothing is made of the fact that the incorporated clauses made no specific reference to the bill of lading holders. the first and boldest argument for the shipowner was that the meaning of clause 8 of the nype form was laid down by authority. in canadian transport co. ltd. v. courtline ltd the house of lords had held that clause 8 placed both the duty to perform and the responsibility for stowage on the charterers. 8 it followed that the owners were not responsible for bad stowage. thus when the words were removed 4. mocatta, mustill and boyd (eds.) scrutton on chanerparties, 19th. ed. (london, 1984) pp.63-65. 5. supra. at p.5 6. miramar maritime corporation v. holborn oil trading ltd. [1984] a.c. 676 at p.683; [1984] 2 lloyd's rep. 129 and p.134 col.2, lord diplock. lord diplock said: ' ... this house should take this opportunity of stating unequivocally that, where in a bill of lading there is included a clause which purports to incorporate the terms of a specified charter-party, there is not any rule of construction that clauses in that charter-party which are directly germane to the shipment, carriage or delivery of the goods and impose obligations on the "charterer" under that designation, are presumed to be incorporated in the bill of lading with the substitution of ... the designation "consignee of the caro" or "bill oflading holder".' 7. [1984] 2 lloyd's rep. p.132 col.2; and p.133 col.2. 8. [1940] a.c. 934; (1940) 67 lloyd's rep. 262. 63 the denning law journal into the bill of lading contract they relieved the shipowner of responsibility for bad stowage. the court of appeal rejected this argument on the simple ground that the words did not necessarily bear the same meaning in the context of the bill of lading contract as they did in the charterparty. this must be right, as it is the very words which are incorporated into the bill of lading contract, not the meaning which the law has attributed to them using their original context as a guide to the parties' intentions.9 the same result may be reached by a different route, for canadian transport is authority only for the proposition that clause 8 makes the charterers responsible for stowage "as between themselves and the shipowners". indeed lord wright goes on to say, in support of this construction: "if [the charterers] do not perform properly the duty of stowing the cargo, the shipowners will be subject to a liability to the bill oflading holders. justice requires that the charterers should indemnify the shipowners against that liability ... " .10 the shipowner's other argument in support of their construction met with more favour. this was that there would be no point in incorporating clause 8 into the bill oflading contract unle~s it was intended to relieve them ofliability for bad stowage. it would be unnecessary to include the clause merely to permit the shipowner to delegate the performance of his duty to stow to the charterer, as he would have a perfect right to do that in any event. the court neither approved nor disapproved of this approach but the implication is that they thought it "arguable". for their part, the consignees urged that because there was no privity of contract between them and the charterer, they would have no contractual right of recourse for bad stowage if the owner's construction were correct, and that this in itselftold against the owner's construction. the loss of any recourse by the consignee for bad stowage was a result which the court was keen to avoid. beldam l)., suggested that an answer might be found in the law of agency; the consignee should be held to have made a contract with the charterer through the agency of the shipowner. it was said that this argument was first suggested by devlin j., in pyrene v. scindia. ii at all events, this stowage contract would come as a surprise to the principals and their agent. one object which this argument would have to meet would be that the shipper will frequently neither know the identity of the charterer nor have sight of the charterpaty terms until well after the contract of carriage with the shipowner has been made and the bill of lading signed. furthermore, the carriage of goods by sea act 1992 may well not transfer the benefit (or the burden, ifany) of this stowage contract to the consignee, who will usually be the party to suffer loss.12 9. hamilton & co. v. mackie & sons (1889) 5 tlr 677, lord esher, m.r. at p.677. 10. supra, n.8 at p.943. ii. but the question in that case was whether an f.g.b. seller had made a contract of carriage with the shipowner through the agency of the buyer: [1954] 1 lloyd's rep. p.330 col.2 12. the 1992 act transfers to the lawful holder of a bill of lading "all rights of suit under the contract of carriage", the contract of carriage being defined as "the contract contained in or evidenced by that bill of lading": 552(1) and 5(1). the act does not contemplate a bill of lading evidencing two separate contracts, one a contract of carriage and the other a contract of stowage. 64 time-charter stowage clauses in a bill of lading contract closely related is the suggestion that by performing stowage the charterer impliedly undertakes a contractual obligation to the shipper to use care and skill. the requisite intentions to contract seem equally lacking in this case, as does any means of transferring the benefit of the contract to the consignee. the court did not have to decide between these competing arguments but it willl be seen that in its willingness to find an avenue of recourse (for the shipper) against the charterer, it leant in favour of the shipowner's construction to some degree. the consistency issue if the charterparty clauses survived the meaning hurdle, the consignees sought to strike them down for inconsistency or incompatibility with the other terms of the bill of lading contract. the court rejected an argument (which may have appealed to sheen j., in the court below) that the shipowner had undertaken an obligation by virtue of the hague-visby rules properly and carefully to stow, which obligation could not be excluded by contract. in reply to this the court referred to the decision in pyrene that the object of the hague rules was not to define the scope of the contract of carriage, but the terms on which such services as were undertaking were to be performed. 13 significantly, the court appears to have rejected the notion that the haguevisby rules create even a primn fade obligation to load and stow properly and carefully. they were prepared to accept that such a primn facie obligation exists at common law. but the consignees' argument that the charterparty clauses should be rejected as inconsistent with that implied obligation proved too much "on that basis, however clear the term restricting the scope of the services undertaken by the owner, it would have to be rejected." 14 comment whilst it began life in the high court as a triumph for consignees, the court of appeal have made the coral very much an owner's case; and have gone the extra mile in this direction. the apparently settled rule in the miramnr, that verbal manipulation of incorporated clauses will not be permitted, and that specific reference to bill of lading holders under that designation would be required to impose an obligation on them, has been thrown open to doubt, to the extent of that case being cited in support of the contrary conclusion. the court was willing to entertain the possibility that the shipper may have to pursue an uncertain recourse action against the charterer based on a contract which none of the parties are likely to have contemplated at the start of the venture, the benefit of which may well not be transferred to the consignee. finally, a significant assumption was made as to the precise effect of the rule in pyrene. in that case, devlin j., had to decide whether the hague rules package limitation applied before the goods had crossed the ship's rail. the cargo owners 13. supra n.11. 14. the coral. supra. at p.7 col.2. 65 the denning law journal had relied on article ill rule 2, which states that' 'the carrier shall properly and carefully load, handle, stow, carry, keep, care for and discharge the goods carried", as defining the scope of the application of the rules; and they contended that their goods had been damaged outside that scope. devlin j., rejected this contention on the ground that article iii rule 2 defined, not the scope of the contract of carriage but the terms on which it was to be performed. it means that the carrier shall do whatever loading or stowage he does properly and carefully. the context of pyrene was thus far removed from the coral. also, there is some evidence in devlin j.'s judgment that he had in mind the division of performance of the operations ofloading and stowage between the owner and shipper, in accordance with the nature of the cargo and practice of the relevant port. 15 dividing performance between the carier and the shipper is one thing; placing responsibility for performance on a third party over whom the shipper has no control and without responsibility on the part of the carrier is quite another. if this point is raised again it is to be hoped that this distinction will be explored. 15. pyrene. supra. n.ll at p.328 co1.2-p.329 col.l: "the extent to which the carrier has to undertake the loading of the vessel may depend not only upon different systems of law but upon the custom and practice of the port of loading and the nature of the cargo. it is difficult to believe that the rules were intended to impose a universal rigidity in this respect or to deny freedom of contract to the carrier. . . . i see no reason why the rules should leave the parties free to determine by their own contract the part which each has to play." 66 the official secrets act 1989: the right balance? 1. n stevens'*' the celebration of the centenary of a controversial act of parliament by means of the enactment of yet another, sharing the same"title and basic purpose, must be something of a rarity. yet this is precisely what has occurred this year, with the granting of the royal assent to the official secrets act 1989 on may 11. the commencement date has yet to be announced at the time of writing (september, 1989). the new act has not closed the circle, however: far from it, in fact. whilst, prior to the official secrets act 1889, no criminal sanctions applied to the unauthorised disclosures of "official" information, not only has the 1989 act retained the use of such sanctions, it has also provided for offences of strict liability in connection with some kinds of disclosures. whether criminal sanctions are necessary, or even desirable, in connection with disclosures which fall short of espionage, or are in no way of assistance to an enemy or potential enemy, is itself a highly vexed question. this article does not address that issue as such, but seeks to assess the new act mainly in terms of the objectives which, according to the government, it sought to achieve. in this context, the necessity of resorting to criminal sanctions in some cases has been more-or-iess assumed: the question, therefore, is: will these be directed towards the appropriate cases? in a world in which "freedom of information", "the public interest" and "open government" are, increasingly, ntuch~used (some would say over-used) phrases, it is essential that a piece of legislation that imposes, or retains, criminal sanctions in cases of disclosures of even delicate information must strike the right balance. all of the above interests, as well as the occasional requirements of confidentiality, and even the risk of harm to the public service or other branches of governmental activities, must be weighed in the balance if one is to answer that question satisfactorily. this, the government claims to have done. the purpose of this article is to examine that claim, against the background of a century of official secrecy. the growth of official secrecy and background to the act it is strange, perhaps, to contemplate that the first official secrets act was passed in 1889. prior to that date, no criminal sanctions existed for preventing "of the school of law, university of buckingham. 169 the denning law journal cases of "breach of official trust"l as such. instead, the authorities had to rely on mainstream criminal law, such as the larceny act 1861. the best known example of a case which highlighted this gap in the law indeed, the case which is commonly thought to have precipitated the 1889 act was that of charles marvin, in 1878. marvin was a temporary clerk at the foreign office, who supplemented what he described as a "miserable" wage by writing articles for the globe. one such article contained the gist of a secret treaty, to which marvin had access in the course of his employment, and which (being endowed with a prodigious memory) he was able to recall and duplicate at the globe's offices. later, he made a copy of the entire treaty, taking the precaution of using his own notepaper, and this, too, was published. marvin was identified as the source of what was a politically embarrassing leak. the case against him was dismissed, however, since he had not actually removed the document, nor even stolen the paper used to transcribe it. in 1888, a "breach of official trust" bill was introduced in the lords. on receiving the royal assent, it became the official secrets act, 1889. like its successor act of 1911, this act aroused controversy, not least in the manner in which it underwent its commons' stages. like the 1911 act, it sought to address two distinct problems: espionage (in section 1); and unauthorised disclosures of official information (in section 2). in both cases, however, the 1889 act was somewhat narrower in scope than that of 1911; section 2, in particular, since it applied criminal sanctions to unauthorised disclosures by crown servants or contractors only. furthermore, such disclosures were unlawful only when made "to any person to whom [the information] ought not, in the interest of the state or otherwise in the public interest, to be communicated ... ,,2 the act (and particularly section 2) was not especially effective (few successful prosecutions being brought) so that, by the turn of the century, attempts to strengthen its provisions were being made. for many years, there was a common misconception that the official secrets act 1911, passed hurriedly as it was,3 was a piece of emergency legislation, in response to the growing threat of german activities including espionage. the 1909 report of a defence committee, however, suggests that not only the contents of the new bill (and especially section 2), but even the manner of its introduction in parliament, had been carefully considered, and planned, well in advance of 1911.4 1. the original tide of the bill. 2. this is, of course, the basis of the "public interest" defence which, particularly since the pontillg case (infra) has been so controversial, and which is conspicuously absent from the 1989 act. 3. it underwent all its commons stages in the afternoon of august 18; s.1 was not even debated! 4. a newspaper had published details of warships. lamenting their inability to prosecute the newspaper (as opposed to the source, ifknown) under the 1889 act, .the committee's report comments: "we ought to be in a position to prosecute the proprietor of the newspaper ... "; and later, " ... such a bill would excite less opposition if it were introduced by the secretary of state for war than by the home secretary, and that this might be done on the plea of it being a measure of precaution of great importance in national defence". 170 the official secrets act 1989 the 1911 act "strengthened" the law in a number of ways. thus (regarding section 1) whilst the 1889 act had been silent as to the burden of proving the required intention on the part of th~ accused, section 1(2) of the 1911 act clearly relieved the prosecution of any such burden; and placed the burden of dispruving such an intention on the accused.5 moreover, the prescribed criminal intention was itself broadened to include "any purpose prejudicial to the safety or interests of the state." the range of both "prohibited places" and "prohibited conduct" were also extended, so that (for example) it became criminal merely to "approach" or be "in the neighbourhood" of a "prohibited place".6 (the 1889 act had been narrower, requiring actual entry into one of the places actually itemised in the act, or, if outside it, making a sketch or plan of such a place). finally, the 1911 act "upgraded" section 1 offences to felonies, punishable by penal servitude7 for between three and seven years. the extended scope of section 1 can be seen in the case of chandler v. d.p.p., 8 which established that the provisions of section 1 could be used in cases of sabotage, even where no damage was done, and this despite the margin heading "penalties for spying". in the chandler case, some c.n.d. protestors sought temporarily to incapacitate wethersfield airbase (where nato command aircraft were based) by means of a peaceful "sit-down" type protest. their long-term purpose, they maintained throughout, was nuclear disarmament. this, they argued, was positively beneficial to society, and could hardly, therefore, be described as "prejudicial to the safety or interests of the state.,,9 they were nevertheless convicted, and appealed (eventually) to the house of lords, who upheld the convictions. in his judgment, lord reid stated: " ... 'state' is not an easy word. it does not mean the government or executive ... perhaps the country, or the realm are as good synonyms as one can find ... ". later he added,1o arguably perpetuating albeit inadvertently the misconception concerning the act's genesis, " ... the 1911 act was passed at a time of grave misgivings about the german menace, and it would be surprising and hardly 5. it stated: " ... if any [information] relating to ... any prohibited place within the meaning of this act ... is made, obtained or communicated by a person other than a person acting under lawful authority it shall be deemed to have been made ... for a purpose prejudicial to the safety or interests of the state unless the contrary is proved" ("a purpose prejudicial to the safety or interests of the state" being the intention prescribed by the act). 6. "prohibited places" now included, as well as arsenals, dockyards, camps and the like, "any work of defence, arsenal dockyard, camp, ship, telegraph or signal station belonging to his majesty", and any other place, whether belonging to his majesty or not where ships, arms or other "defence" materials were built, stored, made or repaired. furthermore, the act empowered. the secretary of state to "declare" such things as railways, roads or other means of communication, or any place "belonging to his majesty" to be a "prohibited place" for the purposes of the act: official secrets act 1911, s.3. 7. till its abolition in 1948: criminal]ustice act 1948, 5.1. the actual term was increased once more in 1920 to a maximum of fourteen years: official secrets act 1920, s.8(1).( the distinction between felonies and misdemeanors itself was, of course, abolished in 1967: criminal law act 1967, s.1.) 8. [1964] a.c. 763. 9. supra. 10. at p.701. 171 the denning law journal credible that the parliament of that date intended that a person who deliberately interfered with vital dispositions of the armed forces should be entitled to submit to a jury that government policy was wrong and that what he did was really in the interests of the state." at all events, the case seems to have decided that "interests of the state" could not be divorced from the policy of the government of the day, and that, for practical purposes, the two are synonymous. apart from the precise legal issues involved, the decision was not a popular one, and prompted the attorney-general i1 to make a statement to the effect that prosecutions under section 1 should really be confined, as far as possible, to cases of espionage or (at least) clear cases of sabotage. the section was not, for instance, used against the greenham common women, though several were prosecuted for (inter alia) criminal damage and offences of obstruction. the attorney's statement was taxed, however, in the notorious a.b. c. trial in 1978,12when section 1 charges were again brought. whilst acknowledging that section 1 extended to cases of sabotage, as well as espionage, the trial judge, mars-jones j, indicated that, in cases of this kind, involving "investigative journalism", such charges were "oppressive". the section 1 charges were quietly dropped, though the defendants were convicted of various charges under section 2. less controversially, section 1 has been used in the various celebrated "spy-trials", such as those of george blake in 1960, and of michael bettany and geoffrey prime in the early 1980s. since it has been untouched by the 1989 act, section 1 remains important. it is to be hoped, however, that the government's failure to reform it does not indicate a willingness for prosecutions under section 1 to be brought in cases like chandler and the a.b. c. case in future, particularly since recent legislation may well prove (at least in cases like chandler) adequate to deal with any problems which might otherwise arise. 13 to turn now to section 2 of the 1911 act. until its repeal in may 1989, it remained one of the most controversial of all statutory provisions. even some judges have roundly condemned it; one, in 1970, suggesting it should be "pensioned off".13 its reform, however, has been problematical. indeed, even when it came about, it took an entire act of sixteen sections to repeal it! the main problem with section 2 though some would arguably see it as a strength lay in a single phrase: 'catch-all'. as it stood, section 2 was capable of making virtually any unauthorised disclosure of any "official" information whatsoever, by any person whatsoever, a criminal offence. as well as extending criminal sanctions to persons other than crown servants and contractors, section 2 made the mere receipt of "official" information an offence, unless this occurred 11. whose consent is necessary for any prosecution under the act: official secrets act 1911, s.8. 12. [1978j crim. l.r .. and named because of the defendant's surnames: aubrey, berry and campbell. the first and last of these were journalists. 13. see, e.g., the public order act 1986, s.38. 14. per caulfield j, in connection with the prosecution of jonathan aitken (then a parliamentary candidate and journalist), with others, over the "nigerian report" (as franks puts it). 172 the official secrets act 1989 "contrary to the desire" of the receiver. it also narrowed the scope of the "public interest" defence,15 and created (as amended)16 a further offence, namely failure "to take reasonable care" of "official" information or documents. the history of section 2 is a chequered one. it has been used in connection with many different kinds of unauthorised disclosures, some of which would seem to pose little or no threat to the public interest, or state security. in 1926, for instance, in the first case where a section 2 prosecution was brought in connection with "journalistic" activities, the retired governor of pentonville prison was convicted after he had written an article, published in the evening news, and entitled "what bywaters told me". the article revealed statements made by a convicted murderer, frederick bywaters, on the eve of his execution. the defendant's claim that these revelations had not been contrary to the public interest did not avail him. he was fined £250 and ordered to pay costs. the editors of the newspaper were not prosecuted. the first prosecution of the author of an article based on information supplied to him by an official in contravention of the act was not brought until 1963. other cases of this kind included those of jonathan aitken (and the editor of the sunday telegraph) in 1970, and the a.b. c. defendants in 1978. many prosecutions have been brought against civil servants (in recent years, most notably sarah tisdall in 1984, and clive ponting in 1985)17 and other officials, including policemen and ex-policemen, post office employees, and even a clerk in the probate office, who "leaked", prior to its official release, information concerning wills. whilst the statistics are incomplete, the following figures18 based on home office ones, are fairly reliable as to section 2 prosecutions. in the period 1945-1955, eleven prosecutions were brought, all but one being successful. in the period 1955-1985, fifty-one individuals and one company were prosecuted, resulting in thirty-six convictions. in four cases charges were withdrawn. the reform of section 2 there have been, over the years, several attempts at the reform of section 2. the first significant proposal was made in 1965, when justice (the british 'branch' of the international commission of jurists) suggested limiting the scope of section 2 so that disclosures should be unlawful only if they threatened the national interest, or were made in breach of an undertaking of confidentiality. 19 in 1968, a committee investigating the civil service20 reported in general terms to 15. this, in time, received an extremely restricted interpretation by the courts: see, e.g., r. v. ponting [1985] crim. l.r. 318. 16. official secrets act 1920, s.9. 17. see, infra. 18. based on home office figures, as supplied (inter alia) to the franks committee. 19. in fact, a reforming measure was taken in 1939, when the extensive powers ofinterrogation (placing a duty on "every person" to give "any information" relating to an offence under the act and, if required, attend at a police station) created by the official secrets act 1920, were limited to section 1 offences: official secrets act 1939. this did not, of course, affect s.2. as such. 20. the civil service cmnd. 3638 (1968) (the fulton report). 173 the denning law journal the effect that administration was "surrounded by too much secrecy", with the result that the wilson government published a white paper, entitled "information and the public interest", the following year.21 this contained proposals for a degree of "freedom of information". it did not, however, seek to dismantle, or otherwise radically reform section 2. the first major proposal to do that came from the franks committee, which reported in 1972,22 having taken evidence from some 114 persons and bodies, including many representatives of the press, broadcasting and the law, as well as government departments. its proposals were particularly significant because they formed (in part, at least) the basis of subsequent recommendations,23 as well as a government bill in 1979, and were certainly carefully considered by the government in reaching its most recent recommendations (culminating, of course, in the official secrets act, 1989). the essence of franks' proposals was that section 2 should be repealed and replaced by narrower and more specific provisions,24 the effect of which would have been to apply criminal sanctions to disclosures of specified types of information only: m:mely, those relating to defence and internal security; foreign relations; currency; maintenance of law and order; and information given by private individuals in confidence. in relation to the first three of these, franks proposed that the whitehall system of classification of information should be adopted, so that a prosecution should only proceed if a minister were to certify that the information was "secret", and that its unauthorised disclosure would cause serious injury to the interests of the nation. this requirement franks described as the "touchstone" of his proposals. it was also suggested that sanctions should be limited to specified classes of persons, in that the "primary duty" would have fallen on to identified classes of persons, including ministers, civil servants, members of the armed forces, the atomic energy authority and post office, civilian personnel in the above, and former members of any of the above classes. other persons would be guilty of an offence only if they communicated information, contrary to the proposed act, which they knew or had reason to believe had been given to them in contravention of the act. mere receipt of official information should cease to be an offence. the official secrets act 1989 the white paper of 1988 pointed out that "the recommendations of the franks committee have naturally dominated discussion of this issue since they were published in 1972, and have remained a necessary and valuable reference point for the government's present consideration of the reform of section 2.,,25 21. cmnd. 4089 (1969). 22. report of the departmental committee on sec/ion 2 oflhe official secrels ac/1911, cmnd. 5104 (1972). 23. see: home office reform of sec/ion 2 of the official secrels ac/, 1911 (commons paper 7285, 1978); green paper open guvernmenl (cmnd. 7520, 1979). 24. which, franks proposed, should take the form of an "official information act". 25. cmnd. 408 (1988), at p.5. 174 the official secrets act 1989 unsurprisingly, therefore, the official secrets act 1989 follows the franks model in what are, perhaps, its most important particulars. thus, the categories of information covered by the new legislation are limited, though they are not precisely the same categories as those proposed by franks. they are information relating to: security and intelligence (5.1); defence (5.2) and international relations (5.3); information which might result or assist in the commission of an offence, or escape from custody, or impede the apprehension or detection of offences or which concerns interceptions made lawfully under the interception of communication act 1985 or security services act 1989 (5.4); and information relating to security or intelligence, defence, or international relations, which has been communicated in confidence to another state or to an international organisation (5.6). the act also incorporates something very like the franks "touchstone", in that, with some significant exceptions, unauthorised disclosures are criminal only if some harm results, or is likely to result. the government did not, however, adopt franks' proposed system of ministerial certification, preferring instead to define the required harm in connection with each category of information. thus, for instance, damage to the capability of the armed forces to carry out their task, or the risk ofloss of life or injury to servicemen, or the endangering of u.k. interests abroad, indicate the kind and degree of harm required under section 2. the exceptions to the above arise under sections 1 and 4. since unlawful disclosures under section 4, by their nature, tend to produce obvious harm (such as the commission of an offence), no additional test of harm was felt necessary. section 1(1), on the other hand, singles out members or ex-members of the security and intelligence services and "notified" persons26 for special treatment, since unauthorised disclosure by them of any information relating to security or intelligence obtained by virtue of their work is an absolute offence. in cases of such disclosures by crown servants and contractors a modified test of harm applies, in that a disclosure is damaging if it either causes (or is likely to cause) damage to the work of the security and intelligence services or is of information which falls within a class or description of information, documents or articles, the unauthorised disclosure of which would be likely to cause such damage. one reason, advanced by the white paper, for drawing this distinction was that, due to the sensitivity of security and intelligence matters, the requirement that 'harm' be established in connection with a disclosure by a member or ex-member might entail the bringing of evidence which involves a disclosure at least as damaging as that which is the subject of the prosecution.27 it is hard to resist the impression, however, that a certain degree of reaction to the "spycatcher" revelations by ex-mis officer peter wright is here involved. 26. a person may be "notified by a minister that he is subject to the provision of s.1.(i) if, in the minister's opinion, his work is such that the interests of national security require that he should be subject to s.i(i), by reason of its being connected with the security and intelligence services": s.1.(6). (arguably, there are shades of franks' "ministerial certification" here.) 27. cmnd. 408, para. 29. 175 the denning law journal like franks, too, the 1989 act defines those persons subject to criminal sanctions by way of "primary" disclosures. these are crown servants, including ministers of the crown, civil servants, servicemen, policemen and police force employees, as well as persons holding "prescribed" offices,z8 government contractors, and former crown servants or government contractors. a 'secondary' disclosure i.e., by a person other than a crown servant or government contractor, or former crown servant or government contractor, is unlawful if it involves information disclosed without authority, or entrusted to the discloser or another in confidence, by a crown servant or government contractor. a person making such a disclosure is guilty if he disclosed the information without authority, knowing or having reasonable cause to believe it was "protected"z9 information. a special test of harm applies here, in that the disclosure must be damaging, and the person making it must have reasonable cause to believe it would be damaging.3o it is a defence for a person charged under sections 1-4 to show that he did not know, and had no reasonable cause to believe, that the information disclosed by him was "protected" or that the disclosure would be "damaging" according to the definitions given in each section. an exception, however, is made for members and ex-members of the security services. for such a defendant, the only defence arises if he did not know and had no reason to believe that the information disclosed related to security or intelligence. 3 i the mere receipt of official information ceases to be a criminal offence. on the other hand, the act makes it quite clear that a disclosure is made by a crown servant with lawful authority "if, and only if, it is made in accordance with [his] official duty" and, where a government contractor is concerned, if it is made in accordance with official authorisation, or for the purposes of his functions as a government contractor.32 furthermore, unauthorised retention of a "protected" document is an offence.33 as with the 1911 act, however, the consent of the attorney-general remains a pre-requisite of any prosecution, except for one brought for a section 4 disclosure. here, that of the d.p.p. will suffice.34 sentences for illegal disclosures are, on indictment, a maximum of two years imprisonment, or a fine, or both, and on summary conviction, six months, or a fine, or both. penalties for illegal retention 28.5.12. the secretary of state may, by order, "prescribe" an office for the purposes of the act: ss.12; 13. 29. i.e., within the categories given in ss.1-4. 30.5.5. 31. sections 1(5); 2(3); 3(4); and 4(4). an interesting point of interpretation arises, however. does the defence protect only the accused who knows (or suspects) neither that the information was protected, nor that its disclosure was likely to be damaging. such an interpretation, in connection with official secrecy, seems by no means unlikely: see, e.g., r. v. oakes [1959] 2 qb. 350. 32. official secrets act 1989 s.7. 33.5.8. 34. 5.9(1) and (2). 176 the official secrets act 1989 are three months or a fine up to level 5 (on summary conviction).35 illegal disclosures are made arrestable offences.36 the right balance? the question must now be addressed whether the official secrets act 1989 achieves the right balance between the public's right of access to information concerning public administration,37 and the protection of that official information which, for reasons of the public interest, should be kept secret. we are not here concerned with espionage as such. few would doubt the need for criminal sanctions there. but the british constitution and system of administration contain many means whereby confidentiality can be ensured, and of calling to account those who breach it. thus, ministerial responsibility, the civil service code of discipline, the law of confidence, and many other measures, both formal and informal, all have a role to play, and all were considered by franks in 1972, and by the government in 1988. on both occasions, the consensus seems to have been that criminal sanctions should apply only in respect of certain kinds of disclosures. three "yardsticks" are discernible in the act (as they were in franks, and even, to a limited extent, in the old section 2). these are directed at: 1. the type of information disclosed; 2. the position (or office) of the discloser; 3. the degree of harm resulting, or likely to result, from the disclosure. the "catch-all" nature of section 2, and, to some extent at least, the success (or otherwise) of the new act, can be largely assessed by reference to these, given the declared aim of the government "to narrow the scope of the present law so that the limited range of circumstances in which the unauthorised disclosure of official information needs to be criminal are clearly defined.,,38 thus, for instance, frederick blake, the retired prison governor prosecuted for his "what bywaters told me" article would not be guilty of any offence under the new act nor would the probate registry clerk who "leaked" information concerning wills to the newspapers in 1932. in neither case would the information concerned be "protected" for the purposes of the 1989 act. more contentiously, perhaps, it is at least arguable that clive ponting (who was, in any case acquitted under the old section 2) could not be successfully prosecuted by virtue of the requirement for 'harm', since the information disclosed by him, although "protected" (it related to defence) concerned events of two years earlier, and had ceased to be relevant operationally.39 35. s.lo. 36. s.ll. 37. a concept somewhat whimsically captured in the american phrase "government in the sunshine". 38. cmnd 408, para. 14. 39. the ponting case is discussed further below, in connection with a "public interest" reference. 177 the denning law journal conversely, it might be argued that the scope of "protected" information has been narrowed too much. "fiscal" information, and that relating to the currency (proposed by franks for protection) is not specificallyincluded, though some such information, insofar as it is given in confidence to other nations or international organisations, and relates to international relations, might be "protected" by section 6. again, franks proposed that information given to the government in confidence by private individuals should be protected.40 the new act makes no such provision. this is a regrettable omission, but not a surprising one. it was never the intention of the government to legislate with respect to the protection of the privacy of the individual. it is notable, however, that official information legislation in many other countries contains just such a provision. the u.s.a. freedom of information act, for instance, specifically excepts "personal and medical files, and similar files, the disclosure of which would institute a clearly unwarranted invasion of privacy", amongst other information, from the general requirement that information in the possession of federal agencies should be made available to the public.41similar provisions exist in australian and canadian official information legislation. the absence in the british constitution of any cogent alternative means of protecting confidential information of a personal character (unlike, say, cabinet and other governmental documents, in respect of which disciplinary procedures, conventional rules, and so on, apply) highlights this omission. doubtless, there will be those who feel that, whilst the old section 2 was badly drafted, and in need of reform, its "catch-all" nature was something of a strength, since it is not always possible to predict the harm that might result from a disclosure until it has actually occurred. limiting the scope of the act to specified categories of information and excluding others, therefore, is inherently risky! accordingly, for some, a "catch-all" provision, with the safeguard of the attorney-general's control over prosecutions, remains the "lesser of two evils". much reliance, however, would thereby be placed on the independence of the attorney-general. indeed, franks commented: "a catch-all provision is saved from absurdity only by the sparing exercise of the attorney-general's discretion to prosecute." yet ... "the very width of this discretion, and the inevitably selective way in which it is exercised give rise to considerable unease.,,42 to appreciate this point, we have to go back only as far as 1985, when the i.b.a. permitted the showing of a programme entitled "mis's official secrets", despite 40. cmnd. 5104, vol. 1, paras. 192-206. 41. u.s. code, title 5, 5552. (1966). this is exemption 6. the others involve information of the following kinds: 1. national security; 2. an agency's internal and personal affairs; 3. specified in a statute directing non-disclosure; 4. trade secrets or confidential commercial and financial information; 5. "inter-agency" memoranda or letters which are not normally available in law by means of discovery; 6. investigative records compiled by law enforcement agencies; 7. records of specified agencies, including the federal reserve board, concerning financial and banking matters. 8. for some reason, "geological and geophysical information, including maps concerning wells". 42. cmnd. 5104, vol. 1, para. 88. 178 the official secrets act 1989 advice that the programme involved a clear breach of section 2 of the official secrets act based as it was in part on information provided by a former mis officer, cathy massiter. doubtless not wishing to mount a further unpopular prosecution in the wake of the ponting case, the attorney-general, sir michael havers, indicated that there would be no prosecution. on receiving this advice, the i.b.a. lifted the temporary ban it had placed on transmission, and the programme was shown on 8th march. needless to say, ms massiter would be guilty under section 1 of the new act. furthermore, it seems highly unlikely that such revelations as those made by ms massiter would go unprosecuted. the narrowing down of the categories of information protected by the act, and the particular provisions relating to security and intelligence members or ex-members, would seem to create a virtual 'mandate' for such prosecutions. certainly, the resolve to mount them in future is likely to be far greater than it was in 1985, with the attorney-general being able to point to the very narrowness of the new act as justification for its more-or-iess automatic use. a "leaner" act should prove both stronger and fitter for its purpose. so much, then, for the narrowing of the categories of information, disclosure of which remains criminal under the new act. what of the circumstances of disclosures, and in particular, the persons who are liable to prosecution? it is true that there was room for improvement. again, the catch-all "flavour" could be discerned in the phrase "person holding office under his majesty" in section 2. its replacement by the more clearly defined categories of "crown servants" and "government contractors,,43 is doubtless an improvement so far as clarity of draftsmanship is concerned. but will this new clarity, of itself, make any real difference in terms of actual prosecutions for unauthorised "primary" disclosures? paradoxically, this question may be tested by reference to a category of persons whose members, though clearly "holding office under his majesty", have never been prosecuted: ministers of the crown. despite some quite serious leaks of official information to the press, no government minister has ever been charged under section 2. franks' explanation for this was that ministers were largely "self-authorising"; as the political head of a government department or ministry, a senior minister, at least, is subject to no higher authority in matters of disclosure, and therefore has to be regarded as vested with such authority himself. there is, of course, much in this argument. the assumption which is sometimes made, however, that ministers are somehow privileged and therefore immune from prosecution, does not necessarily follow. indeed, it has no basis whatever in law. thus, in the event that a government minister were to leak information protected under the 1989 act, especially if it concerned matters which did not fall within the scope of his personal responsibility, one might reasonably expect a prosecution to occur, particularly since ministers are actually specified in section 12. it is tempting to prognosticate, however, that, save for the most serious of 43. official secrets act 1989, s.12. 179 the denning law journal leaks, amounting almost to espionage, ministers will remain, in practice immune from prosecutions. indeed, the lobby system of briefings would seem to demand it! the scope of "protected" information, and of the categories of persons likely to be prosecuted, however, are not all that have been limited by the new act. the failure of the government to incorporate two possible general defences to charges of unlawful disclosure has been the subject of serious criticism, not least in the press. it is to these that we must now turn. a "public interest" defence as has been established, the 1911 act, in section 2, contained at least a form of "public interest" defence, albeit one which was severely limited in scope. nowhere can this be seen to better advantage than in the case of clive ponting, the civil servant who in 1985 was prosecuted under section 2 for leaking ministerial memoranda to an m.p., mr tam dalyell. the memoranda concerned the sinking of the argentine cruiser general belgrano, by a british submarine, on 2nd may 1982, at the height of the falklands conflict. ponting did not argue that the decision to sink the vessel had been wrong. it was his contention, that the leaked documents demonstrated the government's intention to suppress the whole truth about the episode, and in so doing, mislead a commons select committee which was investigating the matter.44 he leaked them to dalyell because, though he was not a member of the committee, he was a long-standing m.p. who had himself, ponting felt, been deceived by government ministers when answering questions in the commons. at ponting's trial, mccowan] directed the jury in the following terms. first, he said that section 2 had created a crime of basic intent only. it was not necessary for the prosecution to establish any particular intention on the accused's part, over and above the intention to communicate information to someone without authority. certainly, it was not necessary to prove that his intention was to harm the interests of the state. secondly, he told the jury that whilst section 2 had provided for a form of "public interest" defence, it should be interpreted narrowly, so that communication "to a person to whom it is in the interest of the state his duty to communicate it" meant a communication made, by a civil servant, in his official duty only. finally, the judge suggested that "the interests of the state" were, for practical purposes, synonymous with government policy. despite this direction, the jury returned a verdict of "not guilty", and ponting was duly acquitted. the government explained its reasons for rejecting a "public interest" defence in the white paper. whilst acknowledging that "some people who make unauthorised disclosures do so for what they themselves see as altruistic reasons", the government felt that the "general model" in which motive is irrelevant to 44. such conduct, if substantiated, would amount to a serious breach of convention: see, e.g., erskine may's parliamentary practice, which makes it clear that any attempt or conspiracy to mislead a parliamentary committee amounts to a contempt of the house. 180 the official secrets act 1989 criminal liability should be adhered to. there had been some feeling in parliament, secondly, that the inclusion of such a defence would elevate "whistleblowers" and place them in some "special category", above thieves, murderers and the like. thirdly, such a defence, it was argued, would detract from the clarity sought in the new act. accordingly, the government felt that "any arguments as to the effects of disclosure on the public interest should take place within the context of the (proposed) damage tests where applicable."45 unfortunately, each of these arguments can be challenged. first, the motives argument fails to take into consideration the possibility of an objective test of public interest. it fails, seemingly, to distinguish between cases like that ofponting, on the one hand, and sarah tisdall on the other. ms tisdall, unlike ponting, had been convicted and sentenced to prison, the first person to be so sentenced for fifteen years, when she leaked details concerning the disposition of cruise missiles to the newspapers. the case is quite distinct from that of clive ponting, however, in that (a) the information she leaked did not suggest impropriety by government, or any attempt to mislead parliament, unlike ponting's disclosures; and (b) she leaked it not to an m.p., but to a newspaper (the guardian). ms tisdall's, arguably, was just the sort of case contemplated in the white paper; ponting's was not. the provision of some statutory protection from reprisals for "whistleblowers" is by no means unknown. in the u.s.a., for instance, a civil servant who leaks information concerning fraud, waste, abuse and other types of wrongdoing in government departments is given such protection.46 that such an objective test of public interest is incapable of precise definition is clearly not true. the concept of the public interest is a fairly commonplace one elsewhere in english law; in connection with discovery of documents, for instance, where the courts have grown well used to balancing degrees of harm to the public interest threatened by disclosures.47 the suggestion that considerations of the public interest can really best be dealt with in the context of the "damage test", too, must be closely examined. first, there is the suggestion that a "damaging" disclosure can never be in the public interest. the white paper made this point clearly: "it cannot be acceptable that a person can lawfully disclose information which he knows may, for example, lead to loss oflife simply because he conceives that he has a general reason of a public character for doing so." true: but not all disclosures need to be quite so damaging. also, as already suggested, an objective test of "public interest" is perfectly feasible, and it is not necessarily a question of what the accused "conceives" to be his reasons for disclosing damaging information. even the seeming paradox, that a disclosure could be "damaging" and yet in the public interest, is capable of being resolved. the obscene 45. cmnd. 408, para. 61. 46. the civil service amendment act ("whistleblower" protection act 1978, amended 1988, u.s. code 200, s.20.). 47. see, e.g., conway v. rimmer [19681 a.c. 910; d. v. n.s.p.c.c. [1977j a.c. 171, amongst others. 181 the denning law journal publications act 1959, for instance, provides that a publication, though "obscene" (and therefore clearly "damaging", in that it "tends to corrupt and deprave"), may nevertheless be in the public good by reason of its being "in the interests of science, literature, art or learning or other subject of general concern.,,48 it might be noted, too, that the test of "public interest" in obscene publications is left to the jury to apply. another worrying aspect of the government's claim arises from the fact that unless the phrase "public interest" actually appears in the act, it is extremely unlikely that any jury will, in practice, be directed to the effect that it should form any part of their deliberations. it is hard to see, then, how argument as to the "public interest" would, in fact, take place at all. the suggestion that a "public interest" defence would elevate those charged with official secrets offences simply falls down in the face of what we have already shown. indeed, there seems to be every reason to treat offences involving "publications" of some sort including disclosures of protected information quite differently from those, like murder, rape and theft, which do not. this is, not uncommonly, already the case.49 thus, it is suggested that a "public interest" defence could have been successfully included in the act if, indeed, it was the wish of the government that considerations of the "public interest" should play some part in proceedings. a defence based on "prior publication". save in limited form in section 6(5), concerning information communicated to another state or international organisation, which has been published with the authority of that state or organisation, no defence based on the fact that information has been previously published arises under the 1989 act. again, the government considered such a defence, and gave its reasons for rejecting it, in the white paper. these were basically twofold. first, confirmation of some story by a senior government official might prove considerably more damaging than a prior, unconfirmed publication. secondly, information which has been previously published piecemeal in a number of sources, might prove damaging only when collated, and published as a single disclosure, e.g., a list of names and addresses which might prove useful to terrorists. 50 these arguments have undeniable force. also, as the government pointed out, in a case where a publication is unlawful only if it causes harm, the offence would not be made out if no further harm is likely to result from a second disclosure. 48. obscene publications act 1959, 5.5, used effectively in the "lady chatterley's lover" trial: r. v. penguin books ltd. [1961] grim. l.r. 176. interestingly, and importantly, the judge in that case (byrne) ruled that the jury was only required to consider "public good" if it found that the book woj obscene, and not otherwise. 49. in fact, "public interest" is a relevant consideration, or defence, in relation to a number of offences involving publications of one sort or another: these include, as well as obscene publications, libel and contempt of court (contempt of court act 1981, s.5.) see, for a discussion on this, yvonne cripps: the legal implications of disclosure in the public interest (1986). 50. cmnd. 408, paras. 62-64. 182 the official secrets act 1989 this would not apply, however, to a section 1 offence, which was of course the subject of the recent spycatcher case, since the normal requirements for harm would not here apply. but the implication that a "prior publication" defence would be wholly novel must be scrutinised. in 1987, the court of appeal held that, once information had passed lawfully into the public domain, a further publication of such information was not an offence under section 2.51 insofar as a prior publication has not satisfied the requirement of harm, it would presumably be a "lawful" one under the act. in 1988, the house of lords took up the issue, at least indirectly. in a. g. v. guardian newspapers and others,52 their lordships held that an interlocutory injunction, restraining the appellants from publishing extracts of the book spycatcher by the former mis officer, peter wright, should be lifted, and not replaced by a permanent injunction, on the grounds that all possible damage to the crown's interests which could occur had, in fact, occurred as a consequence of "prior publication" of the material abroad. it should be noted that the government's argument that most second publications would not be unlawful, since they would be unlikely to cause damage would not apply to even "secondary" disclosures such as those involved in the guardian case, under the 1989 act. in connection with security and intelligence matters, even "secondary" disclosures do not have to cause damage as such. it is enough if they involve information of a "class" provided for in section 1(4)(b). accordingly, if the guardian case was to be heard when the new act comes into force, a court would, presumably, be bound to make permanent an injunction restraining publication, despite the fact that publication all over the world has meant that no further harm to the public (or the crown's) interests is possible! so, whilst accepting the government's argument that an absolute defence of prior publication might have proved impossible even undesirable one may nevertheless regret that "prior publication" will not be at least a relevant consideration when assessing the damage caused by any disclosure, even one involving security or intelligence matters, particularly when such a disclosure is a "secondary" one. it should have proved perfectly possible to retain strict liability, if that were felt necessary on the part of security officers and ex-security officers, whilst maintaining the essence of the guardian decision, to the effect that, if all conceivable damage has been done, and can be demonstrably shown to have been done, it becomes somewhat pointless to 'muzzle' the press by means of the threat of criminal sanctions. conclusions whilst the government's justification for omitting the two defences discussed above is not wholly convincing, there is much that is desirable about the act, and even those omissions must be considered in context. 51. r. v. galvin [1987] i qb. 862. 52. [1988] 3 all e.r. 545. 183 the denning law journal in general terms, the government was right to seek to align official secrets' offences, so far as possible, with criminal offences generally. thus, the inclusion of defences amounting to the absence of mens rea, and the requirement, in connection with most offences, of harm or likely harm, are commendable. with regard to the latter, too, the government was right to reject franks' system of conclusive ministerial certification, correctly observing that such a system would, or would be seen to, place too much power in the hands of ministers. further, by rejecting such a scheme, the government, once again, has aligned official secrets with other areas of recent development, such as the rules of public interest immunity in relation to discovery. that the mere unauthorised receipt of official information will no longer be criminal was a long overdue reform. the act may well bring about some indirect benefits, too, in relation to public access to information. the provisions in section 4, protecting information obtained by means of, or concerned with, interception of communications, could well be such that two benefits result. first, for a prosecution to be brought, it will presumably have to be established that such an interception had occurred, thus increasing public knowledge about such things. secondly, such an interception.will have to be a lawful one for a prosecution to succeed. accordingly, unlawful interceptions may be brought to light. under the present law, disclosure of any such interceptions, whether lawful or unlawful, is potentially criminal (subject to the "public interest" defence.) in terms of the government's objectives, then, the act may be accounted a modest success. its most notable failure, perhaps, is the apparent lack of regard for the confidentiality of private, personal information, which brings it out ofline with official information legislation in most western democracies, and with franks' proposals. the arguments for rejecting public inte'rest and prior publication defences are not wholly convincing, but their absence is likely to be offset somewhat by the fact that the requirements for harm (in most cases) will, hopefully, be argued in the normal way, by means of evidence, leading to judicial determination, and not settled by ministerial determination. on balance, then, except for those who regard a catch-all provision as the safer course, the new act is, at the very least, likely to bring about a shift in the balance of interests, and to that extent, anyway, is an improvement on the old. 184 industrial espionage: what can the law do? victor tunkel* the ncp case on march 12 1993 there ended what the times i described as britain's biggest industrial espionage trial, r v. layton & others. the case was heard over a period of eight weeks at the old bailey. what this must have cost the parties and the taxpayer can only be guessed. the bill for the police investigation alone was estimated to be £4 million. since the case ended in acquittals for all concerned it will not get into the law reports or the annals of crime and any lessons which might be learned from it are likely to be forgotten. the allegations in the case, which were not disputed at the trial, are a useful illustration of some of the machinations currently practised by business spies and saboteurs. the defendant, mr. layton, was the chief executive of national car parks (ncp). his co-defendant, mr. hewitt, was the manager ofkas, described as a security agency. their target was a rival car park company, europarks. it appears that europarks, a newcomer to the car parking scene, were scooping the most lucrative concessions, e.g. heathrow terminal 4 and the south bank centre, which until then ncp would have been able to command. mr. layton, disconcerted by this competition, thought that there might be a mole in his own company who was leaking information to europarks. he therefore called in kas. kas was set up by the late sir david stirling, founder of the sas, to be a sort of civilian equivalent. many of its "operatives" were ex-sas. indeed, some were recalled to the colours for desert storm. kas were unable to detect any mole in ncp. mr. layton therefore asked them to investigate europarks. they went to work in military style. they managed to install one of their operatives as a car park manager wth europarks for 3 months. he passed information, 36 reports in all, to ncp; obtained information about europarks' customers and their cars; obtained the number of a safe; rifled the briefcase and wallet of a europark executive; took files from their office which were copied and returned. he also tried to whip up unrest among europark staff. europark dustbins were searched and useful waste extracted. europark directors were shadowed, their homes watched and their families photographed. by means of a false c.v., kas got jane turpin, * queen mary & westfield college, university of london. 1. the times march 13, 1993. also the independent. glulrdian, financial times. 99 the denning law journal a former captain in the royal signals, the job of personal assistant to the managing director of europarks. she thus gained access to the company's most confidential documents of which she took copies, and to financial information, all relevant to kas. the end of the affair was something of an anti-climax. the intelligence which finally emerged from all this spying was simply that europarks had been successful through undercutting ncp. as for the stalking of europarks, this came to light when mr. hewitt, aggrieved at being dismissed by kas when the agency fell on hard times, went and blew the whistle to the sunday times. this led to a civil action by europarks against ncp which was settled by ncp in effect buying out their competitor for £5 million. a prosecution then began. the main charges were against layton and hewitt for conspiracy to defraud europarks by dishonestly acquiring information about its business affairs. (a charge against miss turpin of obtaining pecuniary advantage, namely the job, by deception, was for medical reasons not proceeded with, and so mr. hewitt was formally acquitted of abetting her.) neither layton nor hewitt gave evidence. their lawyers argued that neither defendant believed he was breaking the law or was dishonest; that mr. layton in employing kas had been assured that only legal means would be used. in particular he specifically ruled out any electronic surveillance. thereafter he was unaware ofkas's methods, save that he knew of miss turpin's infiltration. presumably if he expressly stipulated kas should act only legally, he must have meant non-criminally; it would not be hard to establish breaches of contract and various torts by kas operatives. however even if such civil wrongs were foreseen and acquiesced in by mr. layton, there would be no statutory criminal conspiracy since the criminal law act 1977 abolished the common law crime of conspiracy to commit a tort. the crown therefore resorted to charging conspiracy to defraud. however that crime remains shrouded in all its unreformed common law uncertainty. we know that "defrauding" clearly extends to conduct not in itself criminal, including some inflictions of economic harm, and that it does not require deception. in the leading case, scott v. comr. of police for the metropolis, 2 the house of lords specified dishonestly depriving a person of something which is his; or dishonestly injuring some proprietary right of his. it is conceivable that mr. layton, in employing kas to find out by "only legal means" all they could about europarks, intended in so doing neither to deprive, nor to injure any proprietary right. the crown agreed that there was rio evidence that europarks had suffered any loss. it is true that in wai yu-tsang v. r 3 the privy council upheld a direction that' 'if ... the economic or proprietary interests of some other person are imperilled, that is sufficient to constitute fraud even though no loss is actually suffered and even though the fraudsman himself did not desire to bring about any loss", following the case of r v. allsop. 4 however 2. [1975] a.c. 819. 3. [1991] 4 all e.r. 664. 4. (1976) 64 cr. app.r.29 (c.a.) 100 industrial espionage: what can the law do? these remarks have to be seen in context. the two cases were conspiracies to defraud involving the deceiving of the victim into adopting a course of conduct which put him at financial risk; and the question was whether recklessness as to prejudicing the victim would suffice. mr. layton could say that he foresaw no peril from the act of getting information itself; that he might not find out anything of use; and that if he did, and if he then chose to use it subsequently in giving npc a competitive edge over europarks, that was no part of the conspiracy charged. finally, there is the overriding requirement of "dishonesty" which has been much debated in theft act cases. the privy council in wai yu-tsang felt it necessary to add: "of course, if the conspirators were not acting dishonestly, there will have been no conspiracy to defraud ... "5 whatever this may amount to in practice, it of course follows that if as in this case there are only two alleged conspirators, a finding of non-dishonesty in one puts an end to the guilt of both. the use of conspiracy whatever the moral merits of the arguments, it must be clear that the crime of conspiracy to defraud is too ill-defined and imprecise to deal with industrial espionage. the acquittal of the accused after their eight-week trial speaks for itself. the law commission have been labouring for years to create a new specific offence of defrauding, so that any conspiring to do it would become normal statutory conspiracy under the 1977 act. whether they will come up with something which catches industrial espionage in all its present and foreseeable manifestations may be doubted. a different solution is offered in conclusion below. however, before leaving the present law we should inquire whether sufficient other crimes exist such as may be effective against at least some aspects of this activity. the use of theft the layman might well call it theft. but as every law student would tell him, in the ncp case there was neither the actus reus nor the mens rea for theft. firstly, there was no "property belonging to another" appropriated. the true gravamen, dishonestly obtaining information, is not touched by the theft acts: one cannot steal facts. the law was settled in oxford v. moss6 where a sneak preview by a university student of a forthcoming exam paper was held not to be theft. however valuable know-how may be as a matter of everyday commerce, it is not for theft purposes "property". secondly, even if it were so regarded, the kas spies had no intention of depriving but only of sharing it. there was no intention of keeping e.g. the contents of files or brief-cases, if for no other reason because this would lead to discovery. one could say that the spy's intention is to permanently deprive the owner (and any other authorised users) of exclusivity. so far no one in england appears to have argued that the right of exclusivity could be "intangible property" within theft act s.4 and it is very doubtful if any court would now entertain that proposition. moreover to make 5. [1991] 4 all e.r. at 672c. 6. (1978) 68 cr. app.r.183. 101 the denning law journal information stealable would raise a further crop of problems in relation, for example, to what might constitute subsequent "handling" of such information by others, or to the retention and use of the information by ex-employees. other crimes against some business spying, one might have thought that that old warrior the wireless telegraphy act 1949 could be invoked. since unlicensed radio transmission and receiving of unauthorised signals are offences, it is strange that the manufacture, sale and use of bugging devices is not more tightly controlled. suffice it to say that such devices are on public sale and widely advertised. more specifically, the interception of communications act 1985 s.l creates the crime of unlawful interception of communications either through the post or through any public telecommunications system. so bugging the victim's phone or fax machine would be an offence but not bugging his office or boardroom. the real point of the act was to preserve some degree of civil liberty by controlling official bugging by police and intelligence services, not to deal with private eavesdroppers. the computer misuse act 1990 looks more promising. section 1 makes unauthorisedly accessing a computer an offence. largely aimed at the nuisance of hackers, it extends to intruders with more sinister motives. however the accused must be shown to have" caused the computer to perform a function". the in-house spy who reads the screen over the authorised operator's shoulder is therefore not caught. moreover the s.l offence is summary only, not much of a threat; and the aggravated s.2 offence, by requiring an ulterior serious criminal intent, begs the fundamental question and is unlikely to be satisfied in the case ofthe typical industrial spy. the overt shadowing of people or watching and besetting their premises for purposes of harassment or sabotage could be caught by s.7 conspiracy and protection of property act 1875. however, this old act, hardly ever used even against the brazen paparazzi who besiege the homes of the famous, has no application to covert operations. obtaining pecuniary advantage by deception under theft act 1968 s.16(2)(c) may have a limited part to play where, e.g. moles are planted in a rival organisation; but of course it may not have been necessary to make any untrue statement in achieving a plant. as for invasions of privacy, the public debate generated by recent press intrusions looks like resulting in legislation. but this may be based in civil law only, and anyway may be couched in terms of private lives rather than businesses. some proposals have been published and more are expected. these are mentioned below. it seems clear that these miscellaneous weapons that the criminal law offers against industrial espionage are at best effective only against some methods optional to its perpetrators. against the activity as such there is no general prohibition. victims must have recourse to their civil remedies, mainly through actions for breach of confidence. the scope of such actions, though still capable of development, has been described by the law commission as "glaringly inadequate". 7 7. law com. 110 (1981). this is considered further below. 102 industrial espionage: what can the law do? the need for legislation do we want more specific and rigorous legal control? does industrial espionage pose a sufficient economic or social threat to warrant it? we frequently read of huge losses caused to legitimate businesses by successful espionage. how accurate some of these figures are and how much is mere journalistic guesswork is impossible to say. one difficulty in arriving at a reliable estimate is that espionage, unless it extends to blatant sabotage, may often go undetected; not merely as to the identity of the spy master , the mole or their ultimate instigator, but even that it has occurred. enterprises fail because someone else does it cheaper or better, and there may be no way of knowing exactly how or why their competitor prevailed. another common difficulty is the reluctance of the target business to admit their security has been breached and their know-how filched, either from embarrassment or through not wanting the intruders to know that they know. moreover industrial espionage may provoke undesirable yet understandable reactions: counter-espionage in both the defensive and the retaliatory sense. while the security industry may be seen as generating some useful employment and technical innovation, the social or economic benefit of these is surely outweighed by the extra costs of businesses having to protect themselves, which are ultimately borne by customers and consumers. besides which, it should be a matter of concern that so many former members of the sas, intelligence services, customs and police are now being snapped up for "civilian" employment.s beyond all these economic and social considerations is the decent and reputable trader's sense of helplessness and lack of protection in the face of dishonest and unfair competition. that sense of helplessness has always been one of the mainsprings of the motivation to criminalise rather than leave individuals to pursue their civil remedy or to resort to self-help. i suggest that taken together these make a strong case for specific prohibition. other countries' experience one might have thought that since industrial espionage is a world-wide activity, other countries might have found more effective ways of dealing with it. however recent cases and legislative efforts from the common law world do not seem to provide us with much of a lead. australia: the case of warman international v. envirotech australia9 is instructive. the plaintiffs manufactured and supplied slurry pumps and had 90% of the australian market. they produced and supplied to their employees technical manuals, data and drawings. two long-serving employees, sand w, left the plaintiffs and went to work for the defendants, an american subsidiary be~inning to compete with the plaintiffs 8. personnel at all levels are recruited. the former deputy head of mi6 retired aged 57 to join group 4: the times may 26, 1993. the ex-commissioner of the metropolitan police, sir peter imbert, joined another sas-inspired organisation, integrated security systems: the independent may 31, 1993. 9. (1986) 67 a.l.r. 253 (australian federal court, wilcox 1). 103 the denning law journal in the australian market. a third employee, m, subsequently also left the plaintiffs for the defendants, where he saw copies of the plaintiffs' manuals and drawings in the possession of sand w. when issuing these to customers, m was instructed to block out the plaintiffs' name. m (a counter-mole?) reported these happenings to the plaintiffs. their general manager then did some counter-espionage by prospecting on sundays in the defendants' dust-bins. he removed three bag-loads of refuse, in which were found pages from the plaintiffs' manuals and drawings which could be proved to have been supplied to s. warman brought civil proceedings, alleging breach of copyright, breach of confidentiality and also invoking various australian statutes. much of the argument in the federal court concerned the availability of the privilege against self-incrimination in resistance to the anton piller order in the case.1o wilcox j found sand w in breach of their duty of confidence to warmans in making the documents available to eurotech, and that company liable with them as a joint tortfeasor for knowingly using the documents. saying "the term 'commercial theft' is not too harsh a description" of their activities, he issued injunctions and restraining orders against them. apart from showing how readily espionage provokes counter-measures, and the necessity of the victim to have to do all the detective work and to pursue multifarious causes of action with no guarantees of success, the case indicates a further type of espionage activity which is difficult, perhaps impossible, to outlaw: the headhunting of competitors' employees in order to gain their confidential knowledge. if wand s had restricted themselves to passing on their knowledge and expertise, however confidentially acquired, it would have been impossible to bring the case home to their instigator. ii united states: a different but just as narrow approach was taken by the american prosecuting authorities in carpenter v. us. 12 winans and carpenter were responsible for a daily column' 'heard on the street" in the wall street journal. this was based on information obtained by talking to well-placed and knowledgeable people in the business world. the column was very influential and readers tended to invest in reliance on it. winans and carpenter entered into a scheme with two stockbrokers to give them advance information of the column's content, so that they were able to anticipate the market movement which would follow publication, making a profit which they shared with the columnists. the prosecution relied on what might be thought to be 10. in england this privilege, successfully raised against an anton piller order in rank film distributors v. video information centre [1982] a.c. 380 (h.l.), was promptly removed in any such future confrontations by supreme court act 1981 s.72. 11. allegations of conduct similar to those in the warman case (note 9, above) were made against the production chief of volkswagen when he joined that company shortly after leaving general motors. a team of 40 prosecution officials raided vw's offices in i i different locations to look for gm documents: the times august 27, 1993. 12. (1987) 484 u.s. 19; 98 led. 2d. 275. 104 industrial espionage: what can the law do? a wholly peripheral fact, that the conspirators had communicated by post, wire, radio or television. this was necessary to bring them within the federal mail and wire fraud statutes which prohibit the use of these media for any scheme to defraud of money or property. 13 the us supreme court accepted the argument that the information was confidential to the newspaper prior to publication; that defrauding simply meant wronging someone in his property rights by dishonest methods or schemes; and that it had therefore been defrauded even though it had suffered no monetary loss because it had been deprived of a property right, namely the right to make exclusive use of the information prior to publication. to the english reader at least, the grounds and the reasoning will seem equally strained. apart from the irrelevant underlying requirement of the media of communication, there was the artificiality of the supposed "defrauding" of some "property" when in reality there was no quantifiable loss to or wronging of the newspaper, save perhaps temporarily in its reputation. the real gravamen lay in the dishonest profiting from manipulation of the market caused by the defendants' selffulfilling prophecies. in the uk this would perhaps be an offence under the financial services act 1986 s.4 7, or the new insider dealing provisions of the criminal justice act 1993. that is notto say, however, that it should be beyond the reach of an effective law to protect such confidential price-sensitive information from selective disclosure. the mistake here (and in some of the reform proposals: see later) is the law's resultapproach rather than a conduct-approach. canada: the information in the ncp and warman cases was intrinsically of commercial value. the need to protect a still wider range of business information is shown by the case of stewart v. the queen. 14 the constellation hotel, toronto, had about 600 employees. a trade union wanted to organise them but was unable to get their names and addresses because the management's policy was to keep this information confidential. stewart was therefore hired to obtain the information. he approached one of the hotel's security guards, h, offering him a bribe to obtain the hotel's staff list. h reported this to the security chief and to the police. stewart was charged with counselling theft and counselling fraud, as defined in the canadian criminal code. the supreme court of canada held that for theft there must be something capable of proprietary right and capable of being taken so as to amount to deprivation; and that confidential information does not satisfy these requirements. for fraud, the code calls for prejudice to "property, money or valuable security" .15 since the hotel had no intention to deal with this confidential information in a commercial way, stewart's incitement of h was not counselling fraud. again, it would be possible in england to find an existing crime to deal with this sort of activity: the prevention of corruption act 1906 would apply, irrespective 13. 18 u.s.c.s. 1341, 1343. 14. (1988) 50 d.l.r. (4th.) 1. 15. 5.338. 105 the denning law journal of what the subject-matter was and of success or failure. this only reinforces my suggestion that a new and unfettered conduct-crime is called for, which will cover the whole field. existing reform suggestions having seen in these recent cases some of the forms which industrial espionage can take and the inadequacy of the law to deal with it, we now need to look at prevalent reform ideas. attempts to reform the law have been rather tentative. some us jurisdictionsi6 have simply extended the definition of' 'property", leaving it to their existing theftrelated offences to do the rest. for reasons given earlier, i suspect that prosecutions on this basis will either fail for lack of theftuous mens rea, or if they succeed will raise a whole new crop of problems. j t cross i? commends with reservations the more specific approach of the alberta law institute. they have proposed making it a crime for any person who " ... fraudule~tly and without colour or right acquires, discloses or uses the trade secret of another person" with intent to deprive of either control or of "economic advantage associated with the trade secret". a second proposed offence would criminalise fraudulently inducing an owner to disclose a trade secret; and there would be a lesser punishment where in either offence the defendant was negligently unaware that it was a trade secret. one could have hoped that the stewart case would have shown "trade secret" to be too limited a category of what requires protection; and anyway, the narrowness of the range of activity caught by this proposal must be obvious. attempts and other preliminary crimes should be built-in, not left to be grafted on uncertainly by the common law. and with all this, the likelihood is that all sorts of associated conduct would still escape: surveillance, planting moles, etc. the use of "fraudulently" is not very helpful. in the uk there have been various law reform proposals over the years. the younger committee'8 recommended in 1972 that there be a new offence of "surreptitious surveillance". the scottish law commissioni9 in 1977 proposed criminal offences of (1) entry of premises, or searching or examining property, without consent or authority to obtain confidential information or information of value; and (2) the use of certain surveillance devices. these offences, though still too narrow, show a tendency towards the more appropriate emphasis on conduct rather than results. the english law commission in 1979 were asked "to consider the law relating to the disclosure or use of information in breach of confidentiality and to advise what 16. for a fuller survey, especially of us and canadian developments, see articles by jt cross: "trade secrets, confidential information and the criminal law" 36 mcgill lawjo.524; and "protecting confidential information under the criminal law of fraud and theft" 11 o.j.l.s. 264 (1991). 17. in mcgill lawjo. article (previous note). 18. report of the committee on privacy, cmnd.5012 (1972). 19. memorandum 40. 106 industrial espionage: what can the law do? statutory provisions are required to clarify or improve it." they were also asked to propose remedies for loss caused by such breaches. despite these seemingly wide and general terms of reference, they appear to have assumed that they were confined to civil law matters. their report20 proposed a new statutory tort to replace the present inadequate common law. they appended a draft breach of confidence bill dealing with improperly acquiring information not in the public domain, and the methods of acquisition include unauthorised taking, handling, copying, deception, surveillance, or just being somewhere without authority. the subject -matter protected is wide, going well beyond commercial information. but the range of activities is limited as in previous examples of reform; and in leaving all the initiatives and expense to be undertaken by the aggrieved target, whether corporate or individual, one of the essential shortcomings of the present law remains. the report has not been adopted, though the government is now considering implementation of some parts of it. most recently, the lord chancellor's department has issued a consultation paper, infringement of privacy. 21the paper presents a useful survey of all the previous efforts to protect confidentiality by creating new torts of crimes. however it is only concerned with the protection of personal privacy, and only by means of a proposed new civil action. at the time of writing a further government white paper from the department ofthe national heritage is awaited. this will be in response to the fourth report of the national heritage select committee,22 and therefore may be expected to contain some at least of the criminal offences proposed by the calcutt report.23 these however are about media intrusions into private lives. calcutt recommended three new crimes: for the purpose of obtaining personal information with a view to publication, either entering private property, or placing a surveillance device there, or photographing or recording there, without the appropriate consent. it is likely that some legislation along these lines will be enacted before long. if not requiring the intent to publish, it could be of some marginal use against some industrial espionage. however in view of its original motivation to curb the excesses of the tabloids and the protection of individuals in their private capacity ("private property" is defined in residential terms), the legislation is unlikely to offer protection to business and industrial information. a proposal for an industrial espionage act it seems to me that in the light of the recent cases and such reform proposals as have so far emerged, the only way to deal with industrial espionage is by specific legislation. this would have to encompass the types of activity now known to be practised and all further ones so far as they can be foreseen. for reasons we have seen, such legislation 20. law co. 110, cmnd.8388 (1981). 21. july 1993. 22. privacy and media intrusion 294-1 (march 1993). 23. report of the committee on privacy and related matters' cm. 1102 (1990). 107 the denning law journal will fail if it is framed so as to create result-crimes. it is the activity and its intent, irrespective of success or failure, that must be proscribed. at present business spies may calculate that they will achieve their purpose long before the law's intervention, if any. to deter them, and to counterbalance this gamble on success, the criminal law should be effective at a very early stage. the words of the calcutt report in relation to prying on privacy are surely just as applicable to prying into businesses. "the main desire of a victim. . . is for the intrusion to be stopped immediately . . . . while, in some cases, the civil law can be brought quickly to bear by obtaining an injunction, this remedy cannot realistically be described as instant. ... only the criminal law can guarantee prompt relief for the victim and provide a sufficient deterrent to the intruder. "24 what needs to be criminalised is the essential espionage activity, the attempt to gain confidential information; and this should include attempts to get such information from third parties who happen to hold it, for example the tax authorities, police or customs. at the same time some consideration should be given to outlawing the related activity of industrial sabotage. the type of "dirty-tricks" campaign, for example as alleged in the current virgin atlantic and british airways dispute,25 may also involve information-gathering, surveillance, etc. but it need not do so, and anyway requires to be dealt with separately. in order, however, not to hinder what may perhaps be sharp but still permissible competition, the interference proscribed would be such as was directed against existing legal relationships and obligations and not, for example, towards potential customers or potential employees of a competitor. similarly headhunting the employees of a rival for the sake of their knowledge would not without more be an offence unless it involved their breaking their existing contracts. pretended headhunting, where a rival's employee is interviewed for a job merely to gain information, and where no job is really on offer, should be caught, but proof might be difficult. as with all criminalising legislation, the choice lies between a wide-ranging general prohibition which is left to prosecutorial discretion and to the courts to flesh out; and a more precisely categorised provision. each approach has its drawbacks, but the need for certainty in proscribing business activity previously considered lawful calls for precise targeting, not a catch-all in generalities easily holed by defence lawyers. i therefore offer the draft clauses set out in the annex below, with a list-approach which indicates both the genera and species and which is not exhaustive. three legitimate activities which may foreseeably overlap the prohibitions are 24. ibid., paragraph 6.30. 25. although characterised as the villain in the virgin affair, british airways have themselves more recently been a victim. its rights issue of may 1993 was leaked, leading to a stock exchange inquiry. the chairman, sir colin marshall, is reported as saying: "i wish we could explain it. we do not know how it happened. our board has asked for an inquiry." the times may 26, 1993. 108 industrial espionage: what can the law do? specifically excluded: industrial disputes, investigative journalism, and' 'knockingcopy" advertising. press diggings into private lives have already been mentioned. in so far as they may be legitimate, legislation now in contemplation may be expected to provide for defences. but it is important that the media's probings of the business world should not be inhibited, either under the guise of privacy protection or the stigma of industrial espionage. this is avoided by clause 4(b). hostile advertising is best left to self-regulation. in so far as it might be caught by clause 3(b), it likewise is put outside the bill by 4(b). generally excluded are any activities which are not "dishonest". that word has survived a quarter of a century of probing by criminal lawyers and although its interpretations have not pleased everyone, i suggest that it has attained a plateau of acceptability which makes it the most useful word available. there will always be a grey area on which opinions may differ as to what is a legitimate (if disreputable) competitive tactic and what is intolerable. such uncertain and shifting boundaries in commercial ethics are inevitable and no better way of judging these in the criminal context has been found than by recourse to the reasonable informed juror's concept of dishonesty. having said that, it needs to be made clear that once espionage is outlawed, there must be no recourse to self-help of the sort we have seen in some of the cases. a defendant who pleads "defensive" espionage may nevertheless be found to be dishonest, depending on the circumstances. this is provided for in clause 5. extra-territorial activity would be included by virtue of the criminal justice act 1993. finally, there is the overriding safeguard of the dpp's consent. 109 justice william brennan jr : "constitutional visions take five votes" patricia lucie* justice william brennan died on 24th.july, 1997 aged ninety one, leaving constitutional discourse in america much the livelier for his thirty three years on the supreme court. when he joined the court in 1956, many americans were still afraid to speak out against mccarthyism. at that time the states still defined the content of a person's rights and these did not necessarily include the right to counsel in a criminal case, to marry the person of your choice or have your vote count equally with that of your neighbour. the first faltering steps towards desegregating schools had been taken just before brennan joined the court but racial equality was not on the agenda and gender equality was not even contemplated outside radical circles. what amounted to a revolution in civil rights in the years that followed was not the single handed work of william brennan, but no other hand contributed more to building a constitutional base for social change. he was a technically brilliant lawyer, and one who was mindful of the law's restraining as well as its energising forces. nevertheless he read the constitution in the light of contemporary life as well as the intentions of its framers, in the light of its spirit as well as by the dictionary and in the light of an old saying of oliver wendell holmes that "it is perfectly proper to regard and study law as a great anthropological document.'" its central meaning was never unclear to him. it was to secure the blessings of liberty and equality. how much of these, how far, and in the face of what competing interests is of course the stuff of conflict and justice brennan was sometimes on the winning side of hard fought decisions and sometimes left to • director, william j.brennan project, the university of glasgow. 1 quoted in william j.brennan, "law and social sciences today" the gaston lecture, georgetown university, 25th.november, 1957. 5 denning law journal hone his skills as one of the great dissenters of american constitutional law. unsurprisingly, his legacy is one which includes great liberty enhancing opinions which may be modified in the future but not overlooked, some great dissents which he died hoping would one day become law, and some very divided views on his liberal jurisprudence, though not on the man himself. he was loved by everybody who knew him. born the second of eight children of an irish immigrant family in 1906, william brennan was living proof of the reality behind the american fairy tale, the talented youngster brought up in the school of hard knocks and strong family loyalties, who had an instinctive as well as intellectual belief in opportunity, civic virtue and above all in the equal dignity and worth of all people. he carried the name william brennan junior with more pride than any noble title because it welded him to a father he loved and to generations of irish history taking root in a promised land. 2 when he was in his eighties and just before he retired from the court, he visited ireland and scotland, and confirmed his lifelong affinity with his celtic heritage and enjoyment of the wonderful single malts produced in both countries! educated at pennsylvania's wharton school of finance and commerce and later at harvard law school, brennan's legal career began with a solid professional base in pitney, hardin and skinner and a developing expertise in labour law before he went on to serve on new jersey's state judiciary, where his talents were rewarded with advancement to the state supreme court. it was an interesting time in the state's judicial history, as the great arthur t.vanderbilt reformed and modernised the courts, welcoming the contribution of the energetic, personable brennan who liked nothing better than to work in times of change with a colleague of vision. later brennan was often asked if he had learned anything as a state court judge which helped him later on the united states supreme court. curiously, very few supreme court justices have advanced by this route. brennan was only the third in the twentieth century, following the great holmes and cardozo. "apparently the presidents who have appointed justices in this century have not valued state court service too highly," he said later, too modest to draw attention to what a loss this was, given the quality of that trio. 3 he believed that experience as a state judge was 2 nat henoff, "profiles:the constitutionalist" new yorker magazine, 12th.march, 1990 is an excellent study of early influences. 3 william j. brennan, "state court decisions and the supreme court" a speech to the pennsylvania bar association, pittsburgh, 3rd.february, 1960. 6 justice william j. brennan jr quite different and not altogether the best preparation. he wrote of an altered perspective that comes when charged with the finality of interpreting the constitution. where once he had been suspicious of some federal court interventions in cases competently handled by the state courts, later he became the most active of all his federal colleagues in expanding federal habeas corpus jurisdiction to teach state courts higher standards of procedure in criminal cases. if it did not endear him to a lot of state judges, he at least spoke with the authority of having seven years of close encounters with the realities of state court business. in 1956 president eisenhower appointed him to the supreme court. if there was any truth in the oft told story that he later felt he had made a mistake, believing that this useful moderate appointment of a democrat would help him win irish immigrant votes in new jersey and discovering that instead he had moved a radical trojan horse to conservative washington, seven more presidents would live to either bless or curse ike's gift before brennan retired in 1990. what he did in these years bears critical examination. if his opinions expanded press freedom, shaped thorough going reforms of criminal procedure, gave real meaning to the equal protection clause's promises to black and female americans, freed speakers from restraints, and created access to courts and administrative hearings for millions of americans to pursue their rights, did he not also do this at a price? did he distort federalism? was the price of exuberant individualism the loss of collective and family values? was the price of equality paid by white and male americans? was the final cost one to judicial method, turning law into politics? justice brennan's understanding offederalism was inseparable from his understanding of the bill of rights. believing that it was the primary duty of both state and federal governments to honour all of its guarantees of freedom, he joined enthusiastically in the court's opinions imposing new limitations on the states in criminal trials. historically, the bill of rights had been understood to apply to the actions of the federal government but leaving the states free to fashion their own criminal procedures restrained only by their own state constitutions. it was a freedom which justice brennan and his liberal colleagues believed had been often abused. 4 poor and black defendants were at the mercy of police methods and rules on admissibility of evidence which were generous to the state's case and parsimonious about rights against self incrimination, 4 william j.brennan, "the bill of rights and the states" the james madison lecture, new york university, 15th.february, 1961. 7 denning law journal freedom from unreasonable search, and other essential aspects of due process. the poor had no right to appointed counsel. from the 1930s onward, the supreme court had begun to apply the specific guarantees in the bill of rights to the states and this process of "nationalising" rights gathered pace in the 1960s. states were obliged to appoint counsel for indigents, to observe strict limitations on the admissibility of evidence contaminated by failure to comply with the fourth and fifth amendments, to provide speedy trials, and in short, to observe all the guarantees of a fair process. 5 justice brennan's special contribution lay in expanding federal remedies to encourage state compliance. in 1963, in a decision which he rated as one of his most important, fay v. naia, his controversial interpretation of the 1867 habeas corpus act swept away procedural obstacles to state prisoners seeking a hearing in a federal court on the grounds that they were imprisoned because the state had violated a right held under the federal constitution. 6 this opinion was the first of several which heralded a very significant expansion of federal remedies to state prisoners and a great deal of new business for the federal district and circuit courts. justice brennan was proud of this work. he believed that the federal courts were the very arteries of the bill of rights. rather than casting them as the bullies of the federal system, intervening needlessly in state business, he saw them as the dominies of federalism, involved in a dialogue between state and nation with the bill of rights as class text. after all, the states which learned best how to protect the rights of the accused would seldom see a decision of its courts overturned on federal habeas corpus. his critics, and there were many, argued that the expanded availability of federal review made prisoners restless and litigious, and that it insulted state judges, undercutting the finality of their decisions and robbing states of their autonomy. justice brennan lived to see some of his work undone. indeed the battle for habeas began in the 1970s when the court began to steer to the right. in the 1990s fay v. naia was effectively overruled by the court, and congress itself limited habeas in the 1996 5 mapp v. ohio 367 u.s. 643 (1961) made the exclusionary rule of the fourth amendment applicable to the states; prohibition on cruel and unusual punishments, robinson v. california 370 u.s. 660 (1962); right to counsel in gideon v. wainwright 372 u.s. 335 (1963); prohibition of self incrimination in malloy v. hogan 378 u. s. 1 (1964); inadmissibility of confessions in absence of warnings of right to silence and to counsel during questioning in miranda v. arizona 384 u.s. 436 (1966); right to jury trial in criminal case in duncan v. louisiana 391 u.s. 145 (1968); double jeopardy in benton v. maryland 395 u.s. 784 (1969). 6372 u.s. 391 (1963). 8 justice william 1. brennan jr terrorism and effective death penalty act. 7 justice brennan greatly regretted that, but drew comfort from the substantial body of warren court opinions which have survived and especially from the thirty years of education which had yielded higher standards of trial procedure in the states. it was by no means a paradox when this advocate of strong federal power to guarantee rights latterly became known as the foremost advocate of a revived state constitutionalism. in 1977, in one of the most cited law review articles of all time, justice brennan lamented the erosion of rights which was the consequence of the work of a more conservative supreme court and he turned .to the states to lead the way forward. 8 there was, he argued, no reason why the states could not provide higher standards of rights protection through their own constitutions than the federal constitution. state judiciaries offering better protection for free speech than the first amendment currently demanded could make their decisions safe from federal review by resting them on "adequate and independent state grounds," a doctrine which he had attacked fiercely in fay when it had been used by the states to shield a denial of individual rights! some critics smelled the cynical jurisprudence of lost votes in what seemed to be a convenient abouttum brought on by being on the losing side now. 9 yet there was no inconsistency. his argument was that the bill of rights was a floor below which the states were forbidden to fall. it was not a ceiling. when travelling above its protections, the "state laboratories are once again open for federal business." his new faith in state constitutionalism was consistent, too, with his emphasis on persuasion and dialogue about rights, though with the states as dominies this time. time will tell how many of them will answer justice brennan's call, and a lively debate goes on still about the health and prospects of state constitutional law as a cutting edge of human rights. before brennan, it was never even a question. 7 antiterrorism and effective death penalty act, 28 u.s.c.2241 et seq. among important decisions cutting back on habeas, coleman v. thompson 501 u.s. 722 (1991) on procedural default, and mccleskey v. zant 499 u.s. 467 (1991) severely restricting 'successive' applications. 8 william 1. brennan, "state constitutions and the protection of individual rights" 90 harv.l.rev. 489 (1976-77). justice brennan noted his satisfaction with subsequent developments in "the bill of rights and the states: the revival of state constitutions as guardians of individual rights" the james madison lecture, new york university, 18th.november, 1986. 9 earl m.maltz, "false prophet, justice brennan and the theory of state constitutional law" 15 hastings const.l.q. 429 (1987-88). 9 denning law journal for william brennan the bill of rights was not an abstraction to be played out in the arena of an equally abstract federalism. the individual was right at the centre. each and every individual was entitled to equal dignity, respect and value. translated into hundreds of his opinions, this meant some controversial things, including the right of a newspaper to publish just about anything about a public person, the right of a protester to bum the american flag, and a prohibition on prayer in the classroom. his dissenting opinions caused even more insomnia, contemplating a liberty of homosexuals to indulge in sodomy, a freedom to fill airwaves with "dirty words", and even an america without the death penalty. it was hardly surprising that conservatives criticised the outcomes, or that they should ask where he got some of his answers from in history, precedent and text. the old warren style liberalism has come under attack too from communitarians. 10 brennan's vision was of a rights bearing individual in potential conflict with a powerful government, state or federal, sometimes needing protection from government and sometimes needing the power of one government to protect her from another. was the result a rampant individualism at the expense of community, and the erosion of school, family and state in the making and keeping of shared values? justice brennan's opinions do not lack sensitivity to communities, though they often evince an awareness of the vulnerability of those who do not conform or share the race or creed of the majority in a local environment. his role in keeping god out of the classroom, for example, was to fulfil the first amendment's promise to native american indians, hindus and jews as well as christians that there would be no establishment of religion and that they would enjoy free exercise of religion. the only safe unit to entrust, however, in order to leave tribes, sects and churches to keep traditions and faiths was the individual. he was a devout catholic in his private life. dissenting in lynch v. donnelly to the proposition that a christian nativity scene displayed in a public place was not a violation of the establishment clause because there were so many reindeers and clutter around it as to make it effectively secular, justice brennan did not attack the community feeling that put it there, but instead protected a message which he said was "best understood as a mystical recreation of an event that lies at the heart of the christian faith. to suggest that such a symbol is merely 'traditional' and therefore no different from santa's house or reindeer is offensive to those for whom the creche has profound 10 robert c. post, "justice brennan and federalism" 7 constitutional commentary 227 (1990). 10 mstice william 1. brennan jr significance."l] it is hard to see how community values are compromised by a deep respect for faith, inclusive of all faiths. in brennan's view, official selection of messages by school or community compromised a value selected by the constitution. few other justices have made such an impact on the balance of rights between family, state and child. whilst brennan affinned that the foetus has no rights by his unflagging support for roe v. wade 12 and his contribution to the abortion debate, he helped to create the rights bearing child. he supported the court's decisions that minors seeking an abortion were not obliged to obtain parental consent, and also broke new ground in a plurality opinion in carey v. population services in 1977, striking down new york's ban on the sale or distribution of contraceptives to minors under sixteen and arguing for strict scrutiny of state restrictions on contraception. 13 access to contraceptives, even for the young was "essential to the exercise of the constitutionally protected right of decision in matters of childbearing." in brennan's many opinions concerning the rights of the child, he acknowledged that children have constitutional rights, but not in exact measure with adults. context was important. a child might have a first amendment right to use language containing sexual innuendo in some circumstances, but not necessarily to escape discipline when he used it in a school speech. 14 often his argument was for representation of a child's interests separate from that of the state or the parents, notably in delinquency cases where the child stood to lose her freedom, or where parents sought the committal of the child to a mental institution. 15 he consistently argued that the law should not penalise children because their parents were unmarried or had an unconventional lifestyle, or deny them an education because their parents were undocumented aliens.16 11465 u.s. 668 (1984). 12410 u.s.l13 (1973). 13431 u.s. 113 (1977). 14 bethel school district, no.403 v. haser 478 u.s. 675 (1986) concurring opinion. 15 parham v. jr. 442 u.s. 584 (1979), part dissenting. see burt, "the constitution and the family" 1979 sup. ct.rev. 329 for a critique of brennan's faith in court resolution. 16 pickett v. brown 462 u.s. 1 (1983) on illegitimacy and equal protection; michael h. v. gerald d. 491 u.s. 1 10 (1990) on unconventional family relationships and due process; plyer 11 denning law journal brennan's rights bearing child was not intended to be a threat to the community or the family, however. he reasoned that the child was the future citizen, and that in addition to protection she needed respect and choice. hence he argued for access to ideas and information, and sometimes to lawyers and courts rather than parents. where right~ were concerned he was usually to be found on the side which argued for the treatment of young people as mature, responsible individuals. there was one notable exception. in stanford v. kentucky in 1989, a majority on the court concluded that children as young as sixteen who kill, were eligible for the death penalty. 17 justice scalia argued that children knew right from wrong, that their moral culpability was a matter for individual assessment and that there was no national consensus against executing them. justice brennan argued that juveniles as a class were less morally culpable and aware of consequences, and more likely than adults to be rehabilitated. he would thus excuse them as a class rather than as individuals from death row. in the sense that he had never argued an identity of rights between adults and children, it was not an inconsistent position to argue that juveniles had a lesser responsibility. he never of course wavered from his lifelong belief, expressed most comprehensively in furman v. georgia in 1972 that capital punishment was a violation of the eighth amendment's prohibition of cruel and unusual punishment, arguing that "death is today an unusually severe punishment, unusual in its pain, in its finality and in its enormity."18 justice brennan's vigorous defence of individual rights did not indicate a lack offaith in democracy but was a manifestation of it. nowhere is this better illustrated than in his opinions concerning freedom of speech and press. to justice brennan the first amendment was the cornerstone of self government. it created the conditions of informed debate and reached into every aspect of the life of the mind, including the emotions and senses as well as the intellect. his best known opinion is new york times co. v. sullivan in 1964, holding that criticism of the public conduct of officials was protected by the first amendment even if the statement contained falsity, unless it was made with v. doe 457 u. s.202 (1982) on education and equal protection. 17492 u.s.a.361 (1989). 18408 u.s. 238 (1972) at 287. justice brennan and his colleague justice thurgood marshall dissented in every case thereafter imposing the death penalty, citing their respective opinions in furman. 12 justice william j. brennan jr "actual malice." 19 one of america's best known theorists of free speech, alexander meiklejohn, thought the opinion gave cause for "dancing in the streets."20 it was not a perfect opinion. juries have found difficulty with the "actual malice" test, courts have found difficulty in drawing lines between public and private people, and newspapers have complained of expensive discovery costs. nevertheless it signalled the end of restrictive libel laws which chilled informed discussion and the beginning of an era in which the press has enjoyed a great freedom, to investigate, expose and criticise. if it has not always produced a high quality of debate and concerns raised thirty years after times have focussed on the intrusion of the press into privacy. the court has not yet had the opportunity to deal with the issues directly. it may be guessed that justice brennan would have been cautious about abridging press freedom to accommodate privacy. he consistently upheld publication of the names of juveniles and rape victims where these were available on court record. in a dictum in a 1967 case, time inc. v. hill, he wrote that "newsworthiness" could offer protection to the press from liability in a case involving invasion of privacy.21 in this area, justice brennan made openness and access to information a priority, possibly over a competing individual right to privacy. justice brennan made as great an impact on the equal protection clause of the fourteenth amendment as he did on ·the rest of the bill of rights. it was he who first put the word ''now'' into the vocabulary of school desegregation when the court's patience with southern non-compliance wore thin in green v. county school board in 1968.22 he was a strong advocate of using the strictest standard of judicial review to unmask and uproot racial discrimination, but he came to the view that the court need be less suspicious of laws and programmes designed to benefit minority races. in regents of the university of california v. bakke, he set out a considered and workable strategy for reviewing affirmative action programmes under a less strict judicial standard, thus freeing colleges and employers to set about recruiting members of 19376 u.s. 254 (1964). anthony lewis, make no law: the sullivan case and the first amendment (n.y., random house, 1991) is an excellent study of the case and aftermath. 20 meiklejohn's comment reported in kalven, "the new york times case: a note on the central meaning of the first amendment" 1964 sup. ct. rev. 191. 21385 u.s. 374 (1967). 22391 u.s. 430 (1968). 13 denning law journal minorities on preferential terms. 23 he wrote for a plurality on this point, and not for a majority. his arguments triggered a debate on and off the court, with supporters arguing that affirmative action was a necessary, albeit temporary, scaffolding until minorities achieved real equality, and opponents arguing that it was divisive, that it benefitted individuals who had not suffered discrimination personally, stigmatised them by suggesting they could not succeed on merit, and discriminated against whites who were not proven to have discriminated against anybody themselves. until brennan retired, the court continued to debate, and despite new and more conservative appointments, often upheld affirmative action programmes. indeed justice brennan wrote the majority opinion in one such case in 1990, a congressional scheme for benefitting minorities in broadcasting, in metro broadcasting v. f. c.c..24 since his retirement it seems that affirmative action has gone out of fashion. justice brennan seldom became downhearted when he witnessed reversals or erosions of his opinions, believing that the life of the law was a longer one than even his ninety one years and that good arguments would not stay down. 25 gender equality was a latecomer to the american constitution but justice brennan did much to ensure that it will stay. reviewing the history of sex discrimination in america, he came to the conclusion in frontiera v. richardson that it should be treated just like race, as a suspect classification, a way of differentiating between people which could only be justified by the state's most compelling interests. 26 his nation had, he said, " a long and unfortunate history of sex discrimination. traditionally, such discrimination was rationalised by an attitude of 'romantic paternalism' which, in practical 23 438 u.s. 265 (1978). justice brennan was joined by justices white, marshall and blackmun in his opinion that an 'intermediate' standard of review was a more appropriate standard of review than 'strict scrutiny' where race was used as a benign classification. two years later a court majority adopted brennan's reasoning to uphold a congressional plan of affirmative action in the construction industry fullilove v. klutznick 448 u.s. 448 (1980). 24497 u.s. 547 (1990). it was overruled in adarand constructors, inc. v. pena 115 s.ct. 2097 (1995). 25 sturm and guinier, "the future of affirmative action" 84 cal.l.rev. 953 and sunstein, "public deliberation, affirmative action and the supreme court" 84 cal.l.rev. 1179 for a discussion of alternative strategies for reviving it. 26410 u.s. 677 (1973). 14 http://www.ingentaconnect.com/content/external-references?article=0008-1221()84l.953[aid=731298] http://www.ingentaconnect.com/content/external-references?article=0008-1221()84l.953[aid=731298] http://www.ingentaconnect.com/content/external-references?article=0008-1221()84l.953[aid=731298] http://www.ingentaconnect.com/content/external-references?article=0008-1221()84l.1179[aid=7020404] http://www.ingentaconnect.com/content/external-references?article=0008-1221()84l.1179[aid=7020404] justice william 1. brennan jr effect, put women, not on a pedestal, but in a cage." although a majority of the court agreed with the result in this case, brennan narrowly failed to win a majority for his argument that gender, like race is "suspect." his colleagues preferred to await the outcome of the equal rights amendment to the constitution which was in the process of ratification at the time. they would have waited a long time. the ratification period ended in 1982 without attracting the requisite votes. meanwhile justice brennan had the opportunity to reshape this area of law by articulating a new standard of heightened review, with a majority of colleagues in agreement. the case, craig v. boren has become the benchmark of a whole new jurisprudence of twenty years standing, and has been used recently to scrutinise gender differences as strictly as racial ones in all but name, though affirmative action for women may be a casualty of the same trends as in race.27 in a long career spanning thirty three years, he wrote a remarkable number of benchmark opinions which remain the law, some more weatherbeaten than others. there were times when he was on the losing side, only to find that congress recast the law in ways which reflected his opinions. one example is the religious freedom restoration act, which rescued the essence of brennan's opinion in sherbert v. verner when that 1963 judgement reviewing state laws burdening free exercise of religion by a strict "compelling interest" standard was overruled by scalia's opinion for the court in employment division of oregon v. smith. 28 sometimes of course, brennan opinions were greeted by a howl of congressional disapproval, as when he held that it was "bedrock principle" of the first amendment that allowed one gregory johnson to set fire to the american flag. 29 justice brennan gave congress its place in the ordered scheme of liberty, but did not draw back from interpreting the constitution in ways which displeased majorities. nor would he defer to the "original intention" of the framers in the work of interpretation. he interpreted 27429 u.s. 190 (1976). a recent case in which the craig standard was used in a manner close to 'strict scrutiny' was us. v. virginia 116 s.ct. 2264 (1996), striking down virginia military institute's exclusion of women. 28 the religious freedom restoration act, pub.l.no.103-141; 42 u.s.c. §2000 bb has, as one of its stated purpose, "to restore the compelling interest test as set forth in sherbert v. verner 374 u.s. 398." employment division v. smith 494 u.s. 872 (1990) prompted the response. his colleague, justice harry blackmun provides many more examples in "a tribute to mr.justice brennan" 26 harv.cr.-cl.l.rev.1 (1991). 29 texas v. johnson 491 u.s. 397 (1989). 15 denning law journal the design and purpose of the constitution as one intended to secure liberty by trusting it to future generations. the design included a very important role for the court as ultimate interpreter of the constitution and he welcomed it. "the ultimate question must be, what do the words mean in our time," he wrote. such a role for the judiciary is bound to attract questions as to the role of value judgements in the process of interpretation but as justice brennan argued in a speech at georgetown in 1985, attributing meanings to dead framers or traditions does not remove value judgements.3o perhaps the greatest disappointment of his career was to witness the revival of capital punishment in america so soon after furman v. georgia seemed to foretell its extinction. already convinced that it was per se unconstitutional and ari affront to human dignity, he remained on the court long enough to despair of his colleagues' attempts to square the procedures with due process and equal protection. when he retired, he believed it was just as much a lottery as it had been when the court struck down georgia's scheme in furman for its resemblance to lightning. in vain he and justice thurgood marshall raged in bitter dissents, unable to stop the court from upholding georgia's overtly racially discriminatory scheme, or from confirming the eligibility of juveniles and mentally retarded people for execution. unusually he kept up the rage in public after he left the bench, aware that the work to abolish the death penalty was a mountain. "the final labor, it seems, will be left to the brave and able hands and minds of those we leave behind," he wrote in 1994.31 the university of glasgow is proud to have had justice brennan as a friend. in 1989, a year before he retired, he came to glasgow to receive an honorary ll.d. the visit was an overwhelming success. he charmed everyone who met him. lord mccluskey and he debated the issue as to whether the united kingdom should have a bill of rights, before an audience which included many who were then actively engaged in considering scotland's constitutional future. justice brennan was optimistic. while he realistically admitted some of america's failures, he did not believe that we should be paralysed by fears about the politicisation of the judiciary. it would be, he thought, a rich 30 william i. brennan, "the constitution of the united states: contemporary ratification" text and teaching symposium, georgetown university, washington d.c., 12th. october, 1985. for outspoken criticism of justice brennan's interpretative method, see "what brennan wrought" the new republic, 13th.august, 1990. 31 "neither victims nor executioners" 8 notre dame jl. ethics & pub. pol 'y 1 (1994) at 9. 16 justice william j. brennan jr opportunity for dialogue and awareness of the value of human rights. later he came to the school of law on a sunny july day and took questions from the students. "where does the right to abortion come from ...it isn't in the constitution?" "how did you feel about all the uproar last week when you wrote the opinion about flagbuming?" "is it difficult to work with justice so and so?" his patience and tact were memorable, and so too was the sense of listening to someone who made a difference to history. to honour him, about twelve glasgow students visit the united states each year under the auspices of the university's brennan project, to work with organisations representing capital defendants. 17 remedies: a neglected contribution *andrew tettenborn professor burrows, in the introduction to his excellent book on remedies for torts and breaches of contract, lamented the tendency of most english law students to binge on substantive law at the expense of remedies. he was, of course, entirely right. his point was also particularly apt in the context of the teaching of the cornman law. for there, more almost than in any other system, practitioners recognise that in practice the old maxim nearly always falls to be reversed: in england at least, it is normally a case of ubi remedium, ibi ius and not the other way round. remedies are the vital element in shaping, moderating and at times extending the substantive rules under which we live: and we must always remember that legal advice is, at bottom, simply advice as to the remedy likely to be available (or unavailable) to the client. a corollary of this is a further curiosity of the english law of remedies: namely, that the remedies available to a plaintiff are regarded, to an extent which will astonish a non-common lawyer, as matters of law, subject to their own detailed rules, sub-rules and exceptions. a french lawyer, for example, may be happy to regard the subject of remoteness of damage as a factual issue, as part of procedure, subject in practice to the pouvoir souverain of the juge du fond or trier of fact.] in england, by contrast, the topic is one which is regularly litigated, where the litigation is routinely reported, where decisions are regularly interfered with on appeal, and on which as a result there is a great deal of authority in all tribunals up to and including the house of lords. the relative importance of remedies as a matter of law in england is one excellent reason to concentrate specifically on lord denning's contribution to this subject in the context of the law of obligations. there is also another, possibly more cynical, consideration: arguably, his ideas on remedies have turned out to have more long-lasting effects than his attempts to reform substantive law. in the latter case the seeds he has • bracton professor of law, the university of exeter. 1 mazeaud & chabas, responsabilite civile, (6th ed., montchrestien, 1976) vol. 3.1, at pp.708 et seq., sum up the position nicely. 41 denmng law journal sown, however wholesome and potentially fertile, have often fallen on stony judicial ground (how often is a law student told "there was once a contrary suggestion by lord denning, but this is now clearly discountenanced"?). by contrast, a remarkable number of the remedial innovations with which he allied himself in the court of appeal have now become accepted parts of the legal landscape applied almost without thinking by practitioners every day. the law of remedies covers, on principle, a multitude of sins. this essay will, however, concentrate on its two most important components, on which there is most material to work: that is, money awards (particularly damages) and injunctions. as between these, it is probably true to say that most of lord denning's higher profile decisions have concerned the former. on the other hand, considerably more thoughtprovoking have been certain views expressed by him on specific relief, notably injunctions. it is, therefore, to these that we will turn first. specific remedies and injunctions (1): interlocutory orders there is no doubt over which are the two outstanding contributions made in this area by the court of appeal under lord denning m.r.' s tutelage. they must be the mareva jurisdiction and the anton piller order. the former, indeed, he can be said to have initiated, since in no previous case prior to the leading decision in n. y.k. v. karageorgis had an application for such an order been successfu1.2 the latter he strictly did not, since the practice of issuing such orders had already grown up in the high court even before the seminal anton piller k.g. v. manufacturing processes: but even here there is no doubt whatever that it was that court that gave it the final stamp of approval.3 and, in both cases, what is equally worthy of notice is that that same court or rather, that court presided over by the same judge kept a careful watch on what it had fostered and helped it to develop.4 the subsequent development of the mareva jurisdiction is the most obvious example of this, with a truly astonishing number of subsequent judgments by lord denning m.r. devoted to its development and 2 [1975] 3 all e.r. 282. 3 [1976] ch. 55. 4 see, for example, lord denning's valiant attempt in rank film distributors v. video information centre [1980] 2 all e.r. 273 to prevent emasculation of the anton piller order by the privilege against self-incrimination. although it was reversed in the house of lords ([1981] 2 all e.r. 76), it is not surprising that the latter decision was in tum reversed by statute, thus restoring the law to what lord denning m.r. would have liked it to be in the first place (supreme court act 1981, s.72). 42 remedies: a neglected contribution exegesis. after the blessing in principle of such injunctions in the karageorgis case and later in the more considered mareva compaiiia naviera v. international bulk carriers5 (which incidentally managed to dispose to everyone's satisfaction of clear contrary authority in courts up to and including the court of appeal\ we have a congeries of further decisions, in all of which lord denning m.r. participated, going on to elucidate the type of prima facie case the plaintiff must prove in order to get relief,7 the protections and indulgences to be allowed to the defendant,s and the position of banks and other intermediaries finding themselves embrangled in the litigation,9 together with what is in all but name a practice direction on the procedure to be followed. 10 there are also other important matters dealt with in particular, confirmation that such orders are not limited to commercial cases, 11to foreign defendants of doubtful pedigree,12 or to threats to remove assets from the jurisdiction (the prospect of their being frittered away within it being quite enough): 13and, as if that was not enough, an attempt to extend the jurisdiction to cover claims brought abroad 14the latter unsuccessful, though later effectuated in part by statutory change (as regards european claims). 15 the mareva and anton piller jurisdiction hit the headlines, and with reason. but they were by no means the only examples of lord denning's influence in the interlocutory area. less well-known, but in a way just as important, was his position on interim injunctions generally. in 1975, it will be remembered, the house of lords in american cyanamid v. ethicon ltd. had recast the guidelines for their availability. 16 essentially this recasting had involved downplaying the old issue of whether the claimant had shown a prima facie case that he was right, and instituting 5 [1975] 2 lloyd's rep. 509. 6 notably lister v. stubbs (1890) 45 ch.d. 1 at 14 and scott v. scott [1951] p. 193 at 196. they are conveniently listed in lord denning m.r.' s judgment in the pertamina case referred to below: see [1977] 3 all e.r. 324 at pp.332-333. 7 rasu maritima v. pertamina & another [1977] 3 all e.r. 324. 8 e.g., z v. a [1982] 1 all e.r. 556. 9 see intraco v. notis [1981] 2 lloyd's rep. 256; power curber international v. national bank of kuwait [1981] 3 all e.r. 607; and z v. a, ibid. to z v. a, ibid. ii allen v. jambo holdings [1980] 2 all e.r. 502. 12 see a series of cases exemplified by third chandris v. unimarine [1979] 2 all e.r. 972; chartered bank v. daklouche [1980] 1 all e.r. 205, and prince abdul rahman v. abu-taha [1980] 3 all e.r. 409. 13 prince abdul rahman v. abu-taha, ibid. ]4 the siskina [1977] 3 all e.r. 803, reversed by the h.l. ibid. 15 civil jurisdiction and judgments act 1982, s.25. 16 [1975] ac. 396. 43 denning law journal a more nebulous practice of trying to find a "balance of convenience" between the parties, whatever that was. the general effect of that case was to make such injunctions a good deal easier to get too easy, according to some,17 and it soon became clear that their trepidation was shared by lord denning. like any sagacious judge choosing to postulate a general principle for the benefit of posterity, the members of the house of lords in cyanamid had wisely incorporated a let-out by qualifying their judgments with a "save in exceptional circumstances." and, as might have been foreseen, this was quickly seized upon. public authorities were an early beneficiary. in smith v. inner london education authority, a group of islington parents unsuccessfully tried to halt a school comprehensivisation plan in its tracks and sought an injunction to preserve the status quo.]8 when the case reached the court of appeal under lord denning, considerable sympathy was expressed, obiter, with the view that cyanamid was inappropriate to deal with public bodies charged to act on behalf of the rest of us. 19 and in the later de falco v. crawley borough council, one of the the earlier homelessness cases, the cyanamid rule was said bluntly by his lordship to have no application where the essence of the injunction claim was a challenge to such a body's actions on administrative law grounds.2o of course, public authorities were not the only beneficiaries of this judicial scepticism: it soon became clear that there were other cases too where the propensities of the interlocutory injunction had to be tamed. thus, as lord denning also quickly made clear, the strength of a party's case would not be disregarded where the interlocutory hearing was likely in practice to end the matter, as in the case of restrictive covenants on employees: whatever cyanamid might have held, plaintiffs in such situations with weak cases should, and would, lose. indeed lord denning himself would have gone further and resurrected the old practice where any important issue, such as the right of peaceful protest, was at stake.21 but here, as was often the case, he was in a minority and his views did not prevail. 22 17 for example, prescott (1975) 91 l.q.r. 168; gore (1975) 38 m.l.r. 672. and see too wallington's witty piece at [1976] c.l.j. 82-93. 18 [1978] 1 all e.r. 411. 19 obiter, because the court of appeal was satisfied that the parents' case was a non-starter anyway: and even after cyanamid, this has always been accepted as a ground for refusing the injunction. 20 [1980] 1 all e.r. 913. 21 see, for example, fellowes v. fisher [1976] 1 all e.r. 829. 22 see hubbard v. pitt [1975] 3 all e.r. 1 (should demonstration against "yuppifying" estate agents be prevented by injunction?); [1996] c.l.j. 82 et seq. 44 remedies: a neglected contribution specific remedies and injunctions (2): substantive relief we now tum from interlocutory to final relief. here, one might have thought the discretionary nature of specific remedies, with its concomitant opportunities for shielding the vulnerable and denying succour to the undeserving, would provide fertile ground for a reforming judge. such a view would be particularly beguiling, indeed, since in practice pre-1960 courts, while accepting that they always had a discretion in cases where they were asked for an injunction, had chosen to constrain it pretty closely. thus in the nineteenth century the strong arm of the law had regularly been used to protect legal rights despite serious dislocation of communallife23 and at times remarkably murky motives on the part of plaintiffs.24 oddly enough, however, any temptation to impugn such practices seems to have been largely spumed by lord denning. in cases such as verrall v. great yarmouth borough council, granting specific reliefto ensure a fringe political meeting went ahead despite the prospect of widespread distress and conceivably violence, the leading judgment which he gave was entirely consonant with the orthodoxy of the previous hundred years.25 miller v. jackson is the only judgment noticeably out of line with traditional thinking in this respect.26 there (it will be remembered) a householder in the newcastle commuter-belt was refused an injunction against a cricket club which, in the course of providing a public amenity, persisted in driving cricket balls into his garden. this was at least partly on the basis that, whatever the position as to liability, communal recreation should not be sacrificed to private amenitl7 an approach which had indeed been roundly rejected in previous decisions such as shelfer v. city of london electric co.28 but even miller was something of a special case. the plaintiff was, to say the least, a somewhat unsympathetic character, having knowingly bought a house next to an established cricket ground and then promptly complained of the inevitable effects of cricket being played on it. it is noticeable that 23 shelfer v. city of london electric co. [1895] 1 ch. 287. 24 cowper v. laidler [1903] 2 ch. 337 (enforcement of right to light despite pretty clear indications that claim being used for purposes of extortion). 25 [1980] 1 all e.r. 839. see too pride of derby, etc., angling associa1ion v. british celanese ltd. [1953] ch. 149 at 192, where denning l.j. concurred in preventing a town council from polluting angling grounds with sewage despite the latter's plea that it had nowhere else to put it. 26 [1977] q.b. 966. 27 ibid at p.98i. 28 supra n.23. 45 denmng law journal the leading judgment was aimed as much as anything at undermining the outdated rule that it is no defence that the plaintiff came to the nuisance29 as at rewriting the law of injunctions as a whole.3o indeed, throughout the 1960s and 1970s the tendency was not so much to extend the grounds for refusing specific relief as to restrict them.31 lord denning's part in this process is exemplified by hill v. ca. parsons & sons, a typical "closed-shop" case reflecting the bitter industrial climate ofthe period.32 under trade union pressure, employers unwillingly sacked a number of long-standing non-unionists with entirely inadequate notice. the employees sought an injunction reinstating their employment; and, despite a long-standing acceptance that contracts of employment were not susceptible to specific performance or injunctions having equivalent effect, got it. however long-standing the practice against awarding the remedy, it was said, one had to look at the reason underlying it. apart from the necessity to prevent employment becoming paid slavery (which explained the prohibition on specific performance against the employee) this was the undesirability of compelling employers to work with those whom they did not trust. where this did not apply, there was no reason on principle to decline to give an injunction. in other cases, obviously the traditional rule should continue to apply. so much, indeed, was made clear by lord denning himself in a later trade union case, chappell v. times newspapers ltd. in 1975, where the employee was not prepared to work normally and hence the trust and confidence that normally should exist between employee and employer was not there.33 the injunction was understandably refused. what might be seen as lord denning's quietist policy in discretion cases was, however, anlply counterbalanced elsewhere: nanlely, by a series of highly intriguing (though often unsuccessful) attempts to extend the courts' jurisdiction to grant injunctions in the first place. as regards common law claims within what has been called the "auxiliary" jurisdiction of equity, orthodoxy had always been straightforward and unbending: a defendant could not be restrained from doing something unless he would have been liable in danlages in tort or for breach of contract had he done it. and indeed, in one sense this was hardly 29 see sturges v. bridgman (1879) 11 ch.d. 852: a case whose continued utility in these days of strict planning controls is, to say the least, doubtful. 30 on the simple injunction point, lord denning's approach has indeed been discountenanced by a differently-constituted court: kennaway v. thompson [1981] q.b. 88. 31 see, for example, price v. strange [1978] ch. 337 (searching examination of mutuality requirement, and consequent reduction in its ambit). 32 [1972] ch. 305. 33 [1975] 2 all e.r. 233. 46 remedies: a neglected contribution surprising. as soon as one characterises injunctions as a form of secondary equitable intervention available only where damages are inadequate, it seems to follow that if damages are not available at all, the grant of an injunction must afortiori be precluded. or does it? standing back and looking at the matter from the point of view of principle, there is nothing theoretically absurd in a right enforceable by injunction but not sounding in damages; any oddity stems simply from the mind set of the common lawyer himself. in three types of case, lord denning sought to exploit and develop precisely this idea, which (for want of a better term) can be termed the "autonomous" injunction.34 in the first he was ultimately unsuccessful: as regards the other two, it is perhaps fairest to say that the jury is still out. one concerned the enjoining of crimes (leaving aside for these purposes the specialised locus standi of the attorney-general, local authorities and other official bodies). the issue here is stark and clear. since crimes vary from the heinous to the piffling, from the intentionally perverted to the entirely inadvertent, we cannot decently or justly mulct the criminal in damages for all their effects on the world at large. it is, indeed, for precisely this reason that an action for damages for breach of statutory duty is (quite rightly) not generously countenanced. on the other hand, crime of whatever kind ought to be repressed as well as penalised. it is not attractive to let a defendant say "i intend to commit a crime against your interests, and unless you can interest the prosecuting authorities there's nothing you or anyone else can do about it, so there.,,35 acrow (automation) v. rex chainbelt, inc. was a case of this kidney in the court of appeal which provided a golden opportunity for some originallaw-making.36 the plaintiff, a, had got an injunction preventing x, which was an american company, from wrongfully terminating a distribution agreement with it. under that distribution agreement, materials had been supplied to a by x and also by an associated company y. y, on x's instructions, withheld supplies from a, an act that was a contempt of court but not otherwise civilly actionable in damages at the suit of a. 37it was nevertheless held lord denning presiding that the court had jurisdiction to grant an injunction against 34 i must confess to having first suggested that title: see "injunctions without damages" (1987) 38 n.i.l.q. 118. 35 compare the old case of hayward v. east london waterworks co. (1884) 28 ch.d. 138 (failure to provide fire hydrant: fact that no liability in damages no reason to refuse injunction). 36 [1971] 3 all e.r. 1175. 37 chapman v. honig [1963] 2 q.b. 502 (an earlier decision of the court of appeal in which lord denning had dissented). 47 denning law journal y telling it to resume supplies, on the basis that y's activity (or rather, non-activity) was unlawful, and that a stood to suffer special damage on account of it. true, it might have been argued that acrow was a special kind of case, turning on the inherent jurisdiction to prevent court orders being flouted rather than on any more general principle applicable to the law of remedies. however, it had allowed the principle of the autonomous injunction to gain a toe-hold, and it was this toe-hold which lord denning characteristically caused to be consolidated a few years later. this later case was ex parte island records ltd.,38 where an indignant recording company sought equitable relief against a number of bootleggers, gentlemen whose activities were (as the law then stood) criminal but not tortious, at least as against the plaintiffs.39 by a majority, the court of appeal followed his lordship's lead in holding that, despite the lack of liability in damages, the bootlegging could be prevented at the suit of the plaintiffs. the basis was the same as in acrow: where a defendant has committed a crime, and the plaintiff suffered particular damage, then he could obtain an injunction to prevent its continuance. the reasoning in ex parte island records had some instinctive attraction. it was, however, difficult to reconcile with an earlier house of lords' decision, namely lonrho ltd. v. shell petroleum co. ltd.,4o and was ultimately discountenanced by a differently-constituted court of appea1.41 as a result, it is now something of a historical footnote. the same cannot be said of the other two contexts in which lord denning dealt with similar issues. the first of these was actually the earliest, and concerned the doctrine of restraint of trade (or an extension of it). in nagle v. feilden, the background was that the jockey club had always declined to license women trainers.42 it candidly admitted that it did so solely on grounds of their sex, but took the view these being the halcyon days before the sex discrimination act 1975 that as a private body there was no reason why that should be anybody's business but its own. a female aspirant for a trainer's licence sued for, inter alia, an injunction, alleging that the jockey club's practice amounted to a restraint of trade which adversely affected her right to work. now, there was no doubt that, even if this was a restraint of trade, no liability in damages could arise: 38 [1978] ch. 122. 39 it is different today: copyright, designs and patents act 1988, ss.185 et seq. 40 [1982] a.c. 173 41 in r.c.a. corporation v. pollard [19821 3 all e.r. 771 (see especially per oliver l.j. at pp.781-782). 42 [1966] 2 q.b. 689. 48 remedies: a neglected contribution agreements in restraint of trade might be unenforceable inter partes, but were not otherwise actionable by third persons.43 nevertheless, the court of appeal refused to strike out the plaintiff's claim for an injunction: even if the defendant's course of conduct did not sound in damages (it was said) there was no necessary reason not to allow it to be enforced in other ways. although somewhat enigmatic, and at times criticised,44 this decision has never been overruled, and has indeed been followed, both in 45england and elsewhere. the final example of innovativeness was the police case of chief constable of kent v. v.46 a fraudster had in his bank account some of his ill-gotten gains. the police understandably wanted to prevent him from dissipating them, and sought an injunction to that purpose. the difficulty was as the defendant forcefully argued that, while such disposal might be a crime and possibly a wrong against the victims, it was plainly not wrongful as against the police. nevertheless, lord denning carried donaldson l.j. with him, and the injunction issued by a majority. apart from a technical point concerning the ambit of section 37 of the supreme court act 1981,47the reasoning was beguilingly simple: the police had a right at common law to seize suspected stolen tangibles, and should be given a similar right, enforceable by injunction, to do the equivalent to intangibles. although subsequent courts have expressed some puzzlement over the reasoning adopted, they have generally been content to accept the result (though not to extend it).48 damages and non-specific remedies lord denning's influence on non-specific remedies has been less substantial, though still considerable. some developments can clearly be laid at his door. the award of damages for breach of contract covering 43 the house of lords had, indeed, so held: see mogul 5.s. co. v. mcgregor, gow & co. ltd. [1892] a.c. 25. 44 e.g. [1966] cl.i. 165. 45 england: cooke v. football association, the times, 24th march, 1972 (foster j.). australia: buckley v. tutty (1971) 125 c.l.r. 353 and hall v. v.f.l. [1982] v.r. 64n. 46 [1983] q.b. 34. 47 i.e., that because the section gave an ostensibly general power to issue injunctions, the court need not concern itself with whether the plaintiff had any kind of legal right at all. this point, which was expressed only by lord denning m.r., is clearly heretical: see per lord bridge, speaking for the house of lords, in p. v. liverpool daily post [1991] 2 a.c. 370 at 420. 48 see in particular chief constable ofhants v. a. ltd. [1985] q.b. 132; and chief constable of leics. v. m. [1988] 3 all e.r. 1015. 49 denning law journal non-financial losses was effectively instituted by his court in 1972,49 and (it is sometimes forgotten) cemented in heywood v. wellers50 in 1976, where not only were such damages awarded against a solicitor, but an earlier decision of the same court to the opposite effect51 was airily bushed aside as ripe for reconsideration. and there are other cases where his decisions are cited without question as the leading authority. one example is the liability of a contract-breaker for pre-contract expenditure, which is normally traced back to a case in which he delivered the leading judgment. 52 a more substantial pair of instances come in the otherwise recondite law of conversion, where the measure of recovery is (to say the least) curious. one is the ability of a conversion defendant to reduce the damages payable by him in so far as he has in good faith spent money in improving the subject-matter of the action53 (a proposition now, indeed, embodied in statute law54). the other is a wholesome exception to the rule setting damages arbitrarily at the full value of the property converted, applicable where the plaintiff is a finance company which has already been paid some or all of the instalments due on property subject to a hire-purchase agreement.55 these are the high-profile cases. a good deal more of his influence on remedial law has been less obvious, though clearly there under the surface. nor is this very surprising. decisions on technical points about the measure of recovery do not hit the legal headlines: when pronouncing on damages he has on the whole been less successful in carrying his colleagues with him: and, indeed, anyone who makes a virtue out of saying the uudicially) unsayable will ipso facto decrease the chances of his ideas prevailing. indeed, lord denning, almost uniquely among the judges, has seen fit judicially to excoriate decisions of the house of lords that were binding on him despite this being a pretty obviously quixotic exercise see in particular his comments on house of lords decisions on aspects of recovery for personal injury, and (most notoriously) his almost papal denunciation in cassell & co.ltd. v. 49 jarvis v. swans tours ltd. [1973] 1 all e.r. 171. according to lord denning m.r., there had been an unreported decision in the court of appeal 23 years earlier to the same effect. it is not clear, however, whether the point was seriously argued. 50 [1976] 1 all e.r. 300. 51 groom v. crocker [1939] 1 k.b. 194. 52 anglia t. v. v. reed [1972] 1 q.b. 60. there had been previous (contradictory) authority at first instance. 53 greenwood v. bennett [1973] q.b. 195. 54 torts (interference with goods) act 1977, s.6. 55 wickham holdings v. brooke house motors [1967] 1 all e.r. 117. a second authority establishing the same point, belvoir finance v. stapleton [1970] 3 all e.r. 664, is also a decision of the court of appeal with his lordship presiding. 50 remedies: a neglected contribution broome56 of their lordships' decision nearly a decade earlier to rein in .. d 57pumtlve amages. a good example of an unsuccessful attempt to change fundamentals arose out of lord denning's sage appreciation of the potential difficulties inherent in extensive personal injury liability and his attempts to deal with the problem. often this has come up in the context of decisions on liability:58 but not always. in lim poh choo v. camden health authority, a well-paid victim of medical misfortune was relegated to lifelong incapacity.59 the defendants appealed a then colossal award of £250,ooo-odd, including tidy sums for both therapy necessitated and income foregone for the foreseeable future. they were not successful. lord denning m.r. however dissented, arguing that if the plaintiff received her costs of future nursing care there was no sensible reason to add to this a sum in respect of her loss of (now unspendable) income: such an award, he said, would benefit none but her heirs and the taxman. to the argument that this would leave a loss unrequited, he simply said it was time: "to remove the misapprehension, so often repeated, that the plaintiff is entitled to be fully compensated for all the loss and detriment she has suffered. that is not the law. she is only entitled to what is, in the circumstances, afair compensation, fair both to her and to the defendants.,,6o however acceptable extra-judicially (the desirability of automatic full compensation is not beyond argument, especially to payers of tax and insurance premiums), this not surprisingly failed to find favour: indeed, the idea that loss might simply be allowed to go uncompensated was dismissed in a mere seven lines by lord scarman when the case went to the house of lords.61 nevertheless, the attack on the point of principle was resumed a couple of years later. through medical negligence, an infant became paraplegic, with limited ability to understand his 56 [1971] 2 q.b. 354 at 379 et seq. (the case went to the h.l. at [1972] a.c. 1027). 57 i.e., rookes v. barnard [1964] a.c. 1129. 58 in whitehouse v. jordan [1980] 1 all e.r. 650, at 657-658, for example, lord denning m.r. did not disguise his view that it should be more difficult to extract damages for medical negligence: and his restrictive judgment on what amounted to medical fault undoubtedly reflected this concern. the house of lords disagreed with his view on the actual point in issue (whether a mere "error of judgment" could be negligence): see [1981] 1 all e.r. 267. 59 [1979] 1 all e.r. 332. the decision was varied in the house of lords ([1979] 2 all e.r. 910) but on grounds not germane to the issue here. 60 ibid at p.340. 61 see supra n.59 at pp.920-921 per lord scarrnan. 51 denning law journal predicament. besides the cost of future nursing care, the court of appeal awarded £35,000 for loss of amenity and a substantial sum for future loss of earnings. as in lim, lord denning m.r. dissented, and as in lim there was a good deal of sense in what he said: namely, that to award anything for lost earnings was to enter the realm of speculation and moreover to give money that could do no good to anyone, and further that there was something very odd in giving a practically insensible infant £35,000 for the loss of joys he would never know he could have had in the first place. lord denning m.r.' s championship of a common-sense, impressionistic approach, free of obvious anomaly and with admixed in it a good deal more judicial discretion than is traditional in england, was not limited to personal injury cases. on the contrary, it runs through a good deal of his work on remedies. take another example: the traditional distinction drawn between remoteness of damage as it affects breach of contract and tort, with the victim of the latter (it is said) more generously treated.62 this differentiation looks odd, especially since in an increasing number of cases a person can be liable both in contract and tort, the content of the duty being the same or similar whichever way it is expressed. this point is made more than once by his lordship.63 thus in parsons v. uttley ingham, pig-farmers whose stock rather unexpectedly died from eating mouldy feed sued the container suppliers for breach of contract.64 the suppliers argued that this was precisely the sort of case where the contract-tort dichotomy made all the difference, and that even if recoverable in tort this loss was too remote for contract. the court of appeal was having none of it. besides making this clear, lord denning went on to say that in his view that there should be no difference on principle between the two heads of liability. although this opinion commanded general assent from the other two members of the court (orr and scarman l.jj.), it must be said that it was better thought out: for, whereas the latter reached their conclusion on the somewhat vague ground that it was required by common-sense, lord denning argued rather more cogently not only that there was no difference between contract and tort, but that distinctions might have to be drawn between different kinds of claim (physical damage, loss of profit, etc) whatever 62 for which traditionally the heron ii [1969] 1 a.c. 350 is cited. 63 for example, in cook v. s [1967] 1 all e.r. 299 at 303 ("at one time it was thought that damages in tort were different from damages in contract ... it is generally accepted, however, that in tort too the measure of damages is the reasonable foreseeability of the consequences"); and in parsons v. uttley ingham, below. 64 [1978] q.b. 791. 52 remedies: a neglected contribution their legal basis. needless to say this latter idea, however sensible, was too radical to carry the day. lastly, innovation. we have already mentioned one (minor) example where a wholesome neologism of lord denning's has found favour later in another, statutory, context: namely, the allowance given to an innocent improver against liability to damages for conversion. but there is, of course, another, better known, without which no account of lord denning's contribution to remedies would be complete. in the campaign leading to the enforcement of debts or damage liabilities in foreign currency, now commonplace, there is no doubt he was the prime mover. it is, indeed, a classic demonstration that, in law as elsewhere, the argument from authority is the weakest kind of argument, and is readily defeated by a combination of judicial activism and withering criticism from those in the know.65 the background was straightforward. in 1970 there was clear authority that courts and arbitrators could give judgment only in pounds sterling, this taking the form in the former case a house of lords' decision dating back only eleven years.66 nevertheless, by then no-one doubted that such a practice was uncommercial, rampantly outdated and, given sterling's dismal record on the exchanges, monstrously unfair to claimants. in jugoslavenska oceanska plovidba v. castle investment co., the issue temptingly came up in the context of arbitrators.67 in a standard london charter arbitration, the claimants asked for an award in u.s. dollars to counteract the 1967 devaluation of the pound from $2.80 to $2.40. kerr j. held they could not have it, but in effect begged the court of appeal to reverse him. the latter, under lord denning, duly obliged, blandly discountenancing previous dicta to the contrary in the same court.68 in schorsch meier gmbh v. hennin the issue came up again.69 german creditors, owed an old debt in marks once equivalent to £450-odd but now worth a good deal more in sterling 65 similar examples in other areas include (topically) the demise of the "mistake of law" rule in kleinwort benson v. lincoln e.e., the times, 3rd november, 1998, and (earlier) the introduction of a limited landowners' duty towards trespassers in herrington v. british railways board [1972] a.c. 877. this later was, of course, itself the culmination of yet another campaign by lord denning, as witness his earlier judgments in miller v. south of scotland electricity board 1958 s.c. (h.l.) 20, videan v. british transport commission [1963] 2 q.b. 666 and kingzett v. british railways board (1968) 112 s.j. 625. 66 re united railways of havana & regia warehouses ltd. [1961] a.c. 1007. 67 [1973] 3 all e.r. 498. 68 see the teh hu [1969] 3 all e.r. 1200 at 1206 per salmon l.j. strictly speaking that case did not concern foreign currency awards, but whether an award in sterling could be increased to take account of sterling's depreciation against the claimant's currency of account. it was held (lord denning m.r. dissenting) that it could not. 69 [1975] 1 all e.r. 152. 53 denning law journal terms, called on a bewildered london county court judge to give them judgment for it in marks. he understandably refused, and the creditors appealed. but this time it was more awkward than oceanska plovidba, since here the issue involved not an arbitration award but court enforcement of a debt, and the contrary authority was not a dictum in the court of appeal but a direct decision of the house of lords. the court of appeal were in fact able to allow the appeal on the basis that the debt was an e.e.c. debt and that in such cases the treaty of rome had quietly abrogated the old "sterling-only" rule. but lord denning, with the agreement of foster j., said for good measure that even without this he would have refused to follow the house of lords' decision on the startling ground that the reasons underlying it no longer applied. in the final and best-known case, miliangos v. george frank (textiles) ltd., the e.e.c. let-out was unavailable, since the creditor was swiss and uncompromisingly demanded payment in swiss francs.7o nevertheless, the court of appeal, once again under lord denning m.r., still held that the award could be made, on the basis that it was bound by its own previous decision in schorsch meier. not surprisingly the matter then went to the lords: and equally unsurprisingly that body tartly pointed out that its decisions ought to be loyally followed by the court of appeal. nevertheless the pressure for change was irresistible, with the result that on the substantive point the final triumph went to lord denning: the 1961 decision was duly reconsidered, and it was of course decided that awards could after all be made in foreign currency. conclusion anyone trying to gauge the impact of a judge who spent a great deal of time in the court of appeal faces one obvious difficulty. the vast majority of the judgments on which one has to rely are not individual first-instance rulings where the source of inspiration is at least clear, but opinions delivered by one member of a three-person court, where as often as not the other two members also said what they thought rather than gamely limiting themselves to "i agree" or some such words. on the other hand, there is no reason why this should be an insuperable awkwardness, any more than it was with (say) lord mansfield or lord atkin, both of whom again spent much of their judicial life in collegiate courts, but both of whom are now acknowledged as prime movers. as often as not, lord denning's judgment was the leading judgment; and leading judgments tend in their nature to be more substantial than others, and to give a lead to those that follow. and, of course, this is especially 70 [1976] a.c. 443. 54 remedies: a neglected contribution true where the person giving them has, virtute officii, considerable influence over which cases are allocated to whom. moreover, where there is a series of them attacking one particular issue, their potential influence becomes more obvious still: it is hard to avoid the conclusion (for instance) that the events culminating in the acceptance of judgments expressed in foreign currency judgments in miliangos v. george frank were in large measure due to lord denning's continual efforts and pressure in that direction. furthermore, his lordship's opinions stand out in other ways too: they are normally memorably reasoned, and their ambit in many cases goes well beyond those of his colleagues on the bench. and, of course, there is one additional point. it must not be forgotten that in the court of appeal lord denning dissented more than most from his colleagues' views, and of course dissenting judgments create their own impacts anyway. if one has to look for a theme pervading lord denning's judgments on remedies, it will (it is suggested) be found in the element of radicalism and almost academicism contained in them. they show a strong tendency to transcend the usual judicial questioll "should this or that principle be upheld?" and instead demonstrate an instinct now unfashionable in england to say "shouldn't we begin by starting from first principles and work from there?"?! the injunction cases are a matter in point: by-passing the traditional idea that injunctions secondary to ex post facto remedies, they instead begin with the rather more important question of principle "when ought the plaintiff to be entitled to a preemptive remedy to protect his interests?" and similarly with the cases on personal injury damages: in cases such as lim poh chao, the mysteries of supposedly universal compensation give way to more fundamental questions about why we have such damages in the first place, and a preparedness to question whether certain kinds of loss deserve compensating at all. such a propensity is, of course, deeply disconcerting to some, not least law students wanting the sort of straightforward answers that don't exist in the real world. it is also no doubt dangerous if overdone. a bench composed of law professors manques, all chasing first principles and disagreeing with each other over what they should be, is a nightmare scenario of which the less said the better. but the law does need the occasional person in authority to stand back and stare at the edifice it has 71 in possible contrast to other jurisdictions, e.g., canada. a very neat example is dickson j.'s judgment in andrews v. grand toy alberta ltd. (1987) 83 d.l.r. (3d) 452 at 475. the rationale for awarding damages for pain and suffering and other non-pecuniary loss in personal injury cases is carefully dissected with a view to rewriting the principles underlying such damages. 55 denning law journal created, to point out the obvious defects in the grand design, and to suggest that someone do something about them. in small quantities such conduct has done, and will continue to do, a great deal of good. we should all be grateful accordingly. 56 the role of good faith and fair dealing in contract law: a hair-shirt philosophy? the han. mr justice steyn* the aim of any mature system of contract law must be to promote the observance of good faith and fair dealing in the conclusion and performance of contracts. the first imperative of good faith and fair dealing is that contracts ought to be upheld. but there is another theme of good faith and fair dealing: the reasonable expectations of honest men must be protected. it occasionally requires that the law should treat contractual obligations as defeasible or that a discretionary remedy should be denied. in these broad terms the common law and the civil law have a shared view of the aim of the law of contract. it is in the matter of high technique that the jurisprudence of common law and civil law countries sharply differ. the level of generality of legal rules lies at the heart of the difference. english law favours empirical and concrete solutions; the civil law proceeds deductively from broad first principles. this difference in approach extends to statute law. in england the prevailing legislative technique seeks to provide detailed and concrete regulation. in civil law countries the legislative technique of stating broad principles still has great appeal. in new zealand shipping co. ltd v. a. m. satherwaite & co. ltd.,1 lord wilberforce characterised english contract law as follows:2 "english law, having committed itself to a rather technical and schematic doctrine of contract, in application takes a rather practical approach, often at the cost of forcing the facts to fit uneasily into the marked slots of offer, acceptance and consideration." in interfoto library ltd. v. stilleto ltd.,3 lord justice bingham drew attention to the fact that in many civil law systems the law of contract recognizes and enforces an overriding principle that in making and carrying out contracts parties should * the royal bank of scotland lecture 1991, oxford, published by arrangement with mr justice steyn and the royal bank of scotland. 1. [1975] q. b. 154. 2. at p. 167. . 3. [1989] 1 q. b. 433. 131 the denning law journal act in good faith. he pointed out that it means a great deal more than that parties ought not to deceive each other. he added:4 "english law has, characteristically, committed itself to no such overriding principle but has developed solutions in response to demonstrated problems of unfairness." in my view lord justice bingham has encapsulated the distinctive features of the two great progenitors of national legal systems, the common law and the civil law. this difference in technique between the common law and the civil law is linked with a fundamental difference in philosophical approach between the common law and the civil law. the common law requires consideration for the existence of an enforceable contract. the civil law requires only subjective consensus ad £dem. the approach of english law to the formation of a contract is largely objective. in civil law regimes it is largely subjective. in england there is an objective theory of the interpretation of contracts, with a rigid exclusion of evidence of prior negotiations and subsequent conduct as an aid to interpretation. in civil law jurisdictions the approach is more subjective, and evidence of prior negotiations and subsequent conduct is treated as part of the logically probative material. throughout the web of english contract law the criterion of the reasonable man's response predominates. in the civil law greater account is taken of subjective factors. this emphasis of english law on an objective approach to contractual issues tends to make england somewhat infertile soil for the development of a generalized duty of good faith in the performance of contracts. it is interesting to reflect how greatly commercial cases, and in particular international trade cases, have contributed to the shaping of the distinctive features of our law of contract. the perceived needs of commerce have been decisive. the dominant view has been that concrete regulation best serves the needs of commerce. the vigour of this view has spilled over into the field of commercial arbitration. generally speaking, civil law countries allow parties to an arbitration agreement to stipulate that the arbitrator shall settle their differences ex aequo et bono or by amiable composition. indeed, the model law of arbitration, which was published by the united nations commission on international trade law (uncitral) in 1985, expressly authorizes such methods of dispute resolution if the parties have so agreed.5 to this day the orthodox view in england is that all clauses giving an arbitrator the power to decide in accordance with good conscience rather than legal rules are devoid of legal effect. significantly, this restriction on the freedom of parties is said to rest on english public policy. enough has been said to demonstrate a certain distrust of the aequum et bonum in england. 4. at p. 439. s. art. 28(2). 132 the role of good faith and fair dealing in contract law it is no part of my thesis that the civil law of contract is a more logical system than the common law. like any other system the common law has flaws. but it is by and large a coherent and logical system. it is, however, undoubtedly a system that favours concrete rather than general solutions. this can be illustrated by a few practical examples. in english law the doctrine of rectification had to be developed to deal with cases where an integrated written contract inaccurately reflects the true agreement of the parties. no such doctrine is needed in civil law jurisdictions because it would be contrary to good faith for a party to put forward as accurate a document which does not reflect the true agreement of the parties. the second example relates to the implication of contractual terms. there is a popular misconception that it is particularly difficult in english law to imply terms in a contract. compared to the civil law, english law shows a considerable hospitality to implied terms. in civil law countries the existence of a generalized duty of good faith in the performance of contracts reduces the need for the implication of terms. in the absence of a doctrine of good faith english law has to resort to the implication of terms by reason of the nature of the contract (e.g., an implied duty to cooperate where the contract cannot be performed without cooperation, as in mackay v. dick)6 or by reason of special circumstances of a particular contract. the third example is the burgeoning field of estoppel by representation and by convention. in the absence of a generalised duty of good faith the specific and concrete rules of estoppel are needed to deal with demonstrated problems of unfairness. i do not intend to examine the subject of my lecture historically. my purpose is simply to consider the question whether england has anything to learn from jurisdictions where, in the field of contract law, duties of good faith and fair dealing are of general application. traditionally, english lawyers have been unreceptive to such ideas. the title of this lecture echoes the remarks of lord templeman in banque pinanciere v. westgace insurance co., 7 a case in the house of lords in which my flirtation with notions of fair dealing, in a very different context, was conclusively and decisively rejected by the house of lords. lord templeman said:8 "a professional should wear a halo but need not wear a hair shirt." it is probably right to say that most english lawyers still adopt an equally jaundiced view of notions of good faith and fair dealing. on the other hand, there are winds of change which may produce a climate more receptive to notions of good faith and fair dealing in england. under the influence of civilian traditions the united states uniform commercial code,9 and the 6. (1881) 6 app. cas. 251. 7. [1990] 3 w.l.r. 364. 8. at p. 374. 9. si-203. 133 the denning law journal restatement of contracts, second,lo now explicitly provide that parties are obliged to observe good faith in the performance and enforcement of a contract. the united states has adopted a synthesis of common law and civil law traditions. distinguished commentators have also pointed out that in australia and new zealand notions of good faith and fair dealing are gaining ground. i i in the australian high court is has been stated that the rationale of estoppel is good conscience and fair dealing. 12 but there are also internal signs that english contract law is not to be regarded as set in tablets of stone dating from the time of lord eldon. the doctrine of consideration has played a powerful role in the development of english contract law. in england consideration is not under siege. it has not been qualified out of existence. on the other hand, in the practice of the courts, particularly in commercial cases, it has receded in importance. it may be negative anecdotal evidence but i have no recollection of any claim in the commercial court failing for lack of consideration in recent years. privity of contract used to be regarded as the cornerstone of the law of contract. the notion of an enforceable stipulatio alteri was a heresy to traditionalists. yet now we find that the law commission is actively investigating the question whether the privity rule should be maintained in its present rigid form. earlier in this lecture i referred to general observations of lord justice bingham in the inter/oto case. it is also instructive to consider his approach to the decision to be made in that case. the issue before the court was the application of the doctrine of notice of standard form contractual conditions. lord justice bingham held: 13 'the tendency of the english authorities has, i think, been to look at the nature of the transaction in question and the character of the parties to it, to consider what notice the party alleged to be bound was given of the particular condition said to bind him; and to resolve whether in all the circumstances it is fair to hold him bound by the condition in question. this may yield a result not very different from the civil law principle of good faith, at any rate so far as the formation of the contract is concerned." today, there is at our universities a keen awareness of the fact that the law of contract, tort and restitution ought to be seen as part of a coherent law of obligations: each knitting into the other and influencing the other. the recent decision of the house of lords in murphy v. brentwood district council14 has heralded a remarkable contraction in the scope of the law of tort. no doubt the 10. s. 205. 11. h. k. lucke, "good faith and contractual performance", in p. d. finn (ed.), essays on contract (1986), pp. 18-21; p. d. finn, "commerce, the common law and morality", melbourne university l.r., 17 (1989), p. 87. 12. walton's stores (interstate) ltd. v. maher (1988) 62 a.l.j.r. 110, at p. 129. 13. supra n. 3, at p. 455 b-c. 14. [1990] 3 w.l.r. 414. 134 the role of good faith and fair dealing in contract law pendulum will swing again. for the present, however, the policy of incrementalism rather than high principle reigns. but it is interesting to speculate whether the effect of the contraction of the law of tort will result in an extension of contractual techniques. possibly we will hear more about collateral contracts in the next few years. there are international portents of change in relation to notions of good faith and fair dealing. on 11 april 1980 the representatives of 62 states (including representatives of the united kingdom) approved the united nations convention on contracts for the international sale of goods. the vienna sales convention, as it is commonly called, required ratification by at least 10 states. it duly came into force on ijanuary 1988. by the end of april 1991, 30 states had ratified the vienna sales convention. seven states are engaged in the process of ratification. it is believed that the number of ratifications may increase to 50 in the next two years. within the european economic community, france, italy and germany have ratified the convention. in the common law family of states the united states and australia have ratified the convention. clearly, the international market place is voting for the convention. no international convention will ever completely satisfy all countries. but the text of the vienna sales convention represents a satisfactory compromise between contrasting points of view.15 hopefully, there will shortly be a ministerial announcement that the united kingdom will ratify the convention. if the will to ratify this convention now is absent, our businessmen will be placed at a disadvantage in international commerce. the vienna sales convention bears the badge of neutrality, and it will prove popular among businessmen worldwide. if the united kingdom does not ratify the convention now, commercial realities will compel ratification later. what, you may ask, does this have to do with my paper? the answer is that it underlines three points which are worth making. in the first place the convention demonstrates convincingly that in sales law the principles of the civil law and the common law can be blended into a coherent text. secondly, if this country is to playa positive and influential role in the harmonization of international trade law, an insular attachment to the unsullied purity of the common law is not the best way forward. thirdly, article 7(1) provides: "in the interpretation of this convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade." here one has a classic compromise which enabled the experience of the common law and the civil law to be blended into a generally acceptable international convention. the convention does not create a duty to observe good faith in the conclusion and performance of contracts. article 7(1)only requires the observance 15. b. nicholas, "the vienna convention on international sales law", (1989) 105 l.q.r. 201. 135 the denning law journal of good faith in the interpretation of the convention itself. nevertheless, if england ratifies the convention, english lawyers and judges will become used to employing the criterion of good faith in the wide process of interpretation of the convention. the impact of the eec on english contract law is a matter for a future generation oflegal historians. provisionally, it is my impression that the technique of the civil law is bound to playa major role in the decision making processes of eec institutions, and that it is unlikely that the traditional technique of english contract law will remain unaffected. there is opportunity here for only one example. in september 1990, the european commission published a proposed directive for submission to the council of the european communities. the purpose of the proposed directive is to facilitate the establishment of a single internal market by december 1992by ensuring harmonized consumer protection laws in eec countries. it applies to every contract between a consumer and a party acting in the course of trade, business or profession. it prohibits the use of unfair terms, and renders such terms void if used in contravention of the prohibition. the proposed directive is not limited to exception and limitation clauses: it extends to all contractual terms. it spells out that a term is unfair, inter alia, if: "it is incompatible with the requirements of good faith." if the proposed directive becomes law, it will be incumbent on the united kingdom to give effect to its terms. the criterion of good faith will then come to play an important policing role over contractual terms in our consumer law. on the other hand, it is important to note that the proposed directive does not create a duty of good faith in the performance of contracts. prohibiting unfair terms, and creating a positive duty of good faith in the performance of contracts, are very different things. the philosophy of caveat emptor rather than notions of good faith and fair dealing has dominated english contract law. in bell v. lever bros .16 it was stated to be a principle of universal validity. yet the notions of good faith and fair dealing have left some imprint on english contract law. apart from special fiduciary relationships, contracts of insurance, suretyship, salvage and partnership are categorized as contracts of the utmost good faith. on the other hand, the scope of the duty of disclosure under a contract of insurance is very different from the scope of the duty of disclosure under contracts of suretyship, salvage and partnership. later i will tum briefly to insurance contracts. rules of equity regarding contractual penalties, unconscionable bargains and the limited remedy of relief from forfeiture also provide a refrain reminiscent of good faith notions. a classic instance of the notions of good faith and fair dealing prevailing over caveat emptor is provided by the rule that a party is not entitled to "snap up" an offer which he 16. [1932] a.c. 161, at p. 227. 136 the role of good faith and fair dealing in contract law knows to have been made under a mistake}? sometimes duties of good faith are implied in particular contracts. in every contract of employment there is a term that the employer will not, without reasonable and proper cause, conduct himself in a manner calculated to destroy or seriously damage the relationship of confidence between employer and employee. 18 this term has been held to be an implied obligation of good faith. 19 bearing in mind that an implied term must be clear and workable, the implication of an implied term of good faith in employment contracts must count as some acknowledgement of the utility of the concept of good faith in english contract law. another thread is provided by cases where the contract expressly provides that the question whether a particular condition is fulfilled will depend on the unilateral approval of one of the parties. the interpretation of such a clause, depending on the language and context, will almost invariably be either that the decision making party must have reasonable grounds for his decision or that he need only act in good faith. 20 this is an example of english courts introducing the concept of good faith in a contractual context by a process of construction. our legislature has also on occasions adopted the technique of setting statutory standards of fair dealing. three examples will be sufficient. a defence of fair dealing has existed under the copyright acts of 1911,1956 and 1988. until 1988 the defence applied only to literary, dramatic or musical copyright. in 1988 that defence was extended to broadcasts. then there is the unfair contract terms act 1977. although the act does not expressly use the terminology of good faith and fair dealing, nevertheless it adopts a similar technique by requiring certain contractual terms to run the gauntlet of a criterion of reasonableness. by and large, however, the scope of the act is restricted to exception and limitation clauses. another illustration is to be found in the consumer credit act 1974. it provides that if the court finds a credit bargain extortionate it may reopen the credit agreement so as to do justice between the parties. it is expressly provided that a credit bargain is extortionate if it grossly contravenes ordinary principles of fair dealing. i do not, of course, suggest that by using the analogy of statutes judges may create new legal rights and obligations. but often judges have to choose between equally feasible solutions, and statutes can then legitimately be invoked as demonstrating the good sense or workability of a particular solution. taking stock of the position, my conclusion is that good faith and fair dealing have so far played a limited role in english contract law. but there are signs that the english legal culture may become (or may have to become) more receptive to such notions. how much difference does it make whether a legal system is based on a patchwork of concrete legal rules, or uses the technique of an generalised duty of 17. hartog v. colin and shields [1939] 3 all e.r. 566. 18. woods (1981) irl.r. 347. 19. imperial group pension trust ltd. v.imperial tobacco ltd. [1991] 2 all e.r. 597, at p. 606b. 20. niarchos (london) ltd. v. shell tankers [1961] 2 lloyd's l.r. 496. 137 the denning law journal good faith? in a seminal article published in 1956,professor raphael powell stated his provisional answer as follows.21 first, he said that quite often the foreign court, using the medium of a rule requiring good faith, arrives at the same conclusion as an english court which has used another rule or a more roundabout route. relying on such limited practical experience as i have in the resolution of international trade disputes, governed by different laws, i would change the emphasis slightly by saying that an identical result by a different route is the general pattern. secondly, professor powell said that in a number of cases a rule requiring good faith has enabled the foreign court to adjust relations between the parties more equitably than an english court in similar circumstances. my impression is that this proposition is correct to this day. but any judge's unconcious bias in favour of the justice and the merits of the case tends to reduce the incidence of different results. having indulged in too many generalities, it is now necessary to consider a case where one would expect a general duty of good faith in the performance of a contract to generate fair subsidiary rules. i select the example of an insurance contract which in the theory of english law imposes duties of the utmost good faith on both parties to the contract. in carter v. boehm,22 decided in 1766 by lord mansfield, it was ruled that the uberrima fides principle, as it is sometimes called, imposes reciprocal duties of good faith on the insured and insurer. lord mansfield said that this principle extends to all contracts. this view was soon rejected but in relation to contracts of insurance the principle of uberrima fides has survived. my reason for selecting this example is twofold. first the contract of insurance is of great importance to commercial users and consumers alike. secondly, this example will illustrate that what matters is not whether a contract is characterised as one giving rise to duties of good faith but whether the reality matches the nomenclature. the rules governing non-disclosure under a contract of insurance sometimes compel a court to reach unfair results.23 a minor and innocent non-disclosure may entitle the insurer to avoid. in container transport inc. v. oceanus mutual underwriting association (bermuda) ltd. ,24 the court of appeal stated the law in terms which are starkly at variance with notions of good faith. first, the court of appeal ruled that in relation to the materiality of the matter not disclosed the only relevant yardstick was the probable reaction of a prudent insurer if it had been disclosed: it is irrelevant what the actual insurer's reaction would have been. secondly, the court of appeal ruled that the proper test as to materiality is not whether the matter in question would have influenced the judgment of a prudent insurer in deciding whether to take the risk or in fixing the premium. the question 21. "good faith in contracts", [1956] c.l.p. 16. 22.3 burr. 1905. 23. see r. a. hasson, "the doctrine of uberrima fides in insurance law a critical evaluation", (1969) 32 m.l.r. 615. 24. [1984] 1 lloyd's l.r. 476. 138 the role of good faith and fair dealing in contract law is simply whether the matter not disclosed would have been taken into account by the underwriter in his decision making process. since the container transport case related to marine insurance, the proper construction of the marine insurance act 1906 played a major role in the reasoning of the court. but the act, although not exhaustive, was a restatement of the common law. and, like cases ought to be decided alike. this decision is therefore equally applicable outside marine insurance law. while the correctness of the container transport decision is not in issue, one can legitimately ask whether the law as stated in this case is satisfactory. it is difficult to understand why an underwriter should be able to avoid a contract for nondisclosure, when he would have written the risk anyway. if he would have chosen not to act as a prudent underwriter would have done, because he was seeking to create a new book of business, why should he be able to avoid? moreover, how can avoidance on the grounds of a non-disclosure, which was causally irrelevant as far as the actual underwriter is concerned, be squared with the proposition that the parties owe each other reciprocal duties of the utmost good faith? under the general law of misrepresentation proof of actual inducement is necessary. why should an insured's position under a contract of the utmost good faith be less favourable? the second point is also important. in the container transport case the trial judge had held that the test of materiality is whether the non-disclosure would have influenced the judgment of a prudent underwriter in accepting the risk or fixing the terms. as a result of the decision in the court of appeal the law is now that it is sufficient if the underwriter would have taken the matter into account albeit that he would thereafter have dismissed it from his mind as unimportant. this statement of the law is not in accord with the general law regarding misrepresentation. a party who seeks to avoid a contract on the ground of misrepresentation must show on a balance of probabilities that he was induced. it is easy for an insurer, upon rummaging through the documents an insured has disclosed upon discovery, to find grounds for raising defences of non-disclosure. is this rule fair? assume a fire insurance where a shopkeeper failed to disclose a small fire 10 years ago since when the shopkeeper introduced additional fire precautions. conceivably, the evidence might show that if the matter had been disclosed a prudent underwriter would have written the risk on exactly the same terms. but it will in practice be easy to find an underwriter to testify that he would have taken the earlier fire into account. does it accord with good faith and fair dealing, that the insurer should be able to avoid on such flimsy grounds? accepting the law as stated in container transport to be correct, it seems to me that the rules regarding non-disclosure under a contract of insurance are unfairly tilted in favour of the insurers. the only justification for this state of law is a premise that makes the insurers the judges in commercial causes in which they stand to lose money. the traditional argument is: insurers act responsibly and would only rely on a technical non-disclosure if there is good reason to suspect 139 the denning law journal deliberate misconduct by the insured. it is a specious argument. this part of english insurance law is not easy to reconcile with duties of good faith and fair dealing. it is also of some interest to consider the policy of our legislature in relation to insurance contracts. the insurance policies currently in use in england contain many unfair conditions and exceptions. yet the unfair contract terms act 1977 provides that such contracts are wholly excluded from the scope of the act. in this respect our act is different from corresponding legislation in some other e.e.c. countries. the fact that the contract is a contract of the utmost good faith ought surely to be an incentive to prohibit, or control, unfair conditions and exceptions in contracts of insurance. why are contracts of insurance excluded from the scope of this legislation? no ground of public interest suggests itself. there is only one answer: the astonishing strength of the insurance lobby secured the exemption. returning now to the question in the title of this paper, my answer is that good faith and fair dealing is in no sense a hair shirt philosophy. on the contrary, it has been demonstrated in the hard school of litigation and international commercial arbitration to be a perfectly workable and sensible technique for the imposition of legal duties in many legal systems, and in parts of our own system. undoubtedly, contract law should strive to attain certainty of rights and predictability of results. but i regard as unproven the assertion that the pragmatic approach of our law necessarily leads to greater certainty and predictability than the more general methods of the civil law . but there is no need to abandon our legal heritage. our methods have by and large served us tolerably well. moreover, i am not persuaded that generalised duties of good faith are useful across the spectrum of contractual relations. there are so many varieties of contract. in some contexts good faith and fair dealing have no significant role to play. such is the case, for example, in many commercial contracts where one is not concerned with fault but simply with an allocation of the risks of a particular undertaking or enterprise.25 on the other hand, as our legal culture becomes more familiar with notions of good faith and fair dealing, it may be that in some areas there will be greater scope for using principles of good faith and fair dealing. here i particularly have in mind consumer law. we live in a consumer society of mass production, distribution and consumption in which the nineteenth century premise of freedom of negotiation is a myth. but even in this field there may be a powerful case for the law to be developed by using the traditional techniques of the common law. my rather lame verdict is that there is no one self-evidently right answer on this point. but i do firmly believe that if principles of good faith and fair dealing are to gain wider acceptance in consumer law, it will be important not to give to such principles too abstract a moral content. while a definition of good faith and fair dealing is impossible, it seems to me that the law ought not to set its sights too high. 25. prof. g. treitel, "fault in the common law of contract" ,inliber amicorum for lord wilberforce ed. m. bos and i. brownlie (1987), p. 185 et seq .. 140 the role of good faith and fair dealing in contract law these notions ought to reflect not the response of a moral philosopher but the responses and usages of ordinary right thinking people. but i would willingly forego such a development, provided that in using the high technique of common law the closest attention is paid to the purpose of the law of contract, i. e., to promote good faith and fair dealing. after all, it is right that academic lawyers, practitioners and judges should constantly consider whether rules of law under consideration serve the purpose which led to their formation. or, putting it more simply, we must never lose sight of lord reid's observation in cartledge v. e. jopling & sons ltd. that "the common law ought never to produce a wholly unreasonable result . . .".26 nothing is more important than that the next generation of lawyers should approach the activities of parliament, and the decisions of judges at every level with open-minded scepticism. vigorous criticism is one of the great shaping forces of the common law. and we must never underestimate the continued capacity of the common law for disciplined growth in accordance with its own traditions.27 26. [1963] a.c. 758, at p. 772. 27. mr j. beatson, a law commissioner, read a draft of this lecture and made a number of suggestions which i have incorporated in the final text. the flaws in it are entirely my responsibility. 141 in defence of the north american rolling charge sarah lowrie* & paul todd** in barlow clowes v. vaughan, 1 the court of appeal reluctantly accepted that the rule in clayton's case 2 remained generally applicable to competing claims in equity, to mixed funds in running bank accounts. this first-in first-out rule operates rather like a bus queue, attributing successive payments out of an account to the earliest payment in. the effect of this is that if money is dissipated from the account, clayton's case benefits later payments in, whereas if money from the account is committed to an investment which increases in value, the rule benefits earlier payments in. in both cases, a great deal can turn capriciously on the chance order of payments. it is perhaps not surprising, therefore, that neither in barlow clowes, nor indeed in any other case, has the rule been wholeheartedly embraced. indeed, in barlow clowes itself, there was a strong entreaty to the house of lords to reconsider the rule. 3 the purpose of this article is to advance suggestions as to how the law should rationally develop, if ever the house should have this opportunity. it will be suggested that the north american rolling charge, which has not generally • university college, swansea . •• cardiff law school. 1 [1992] 4 all e.r. 22, [1992] b.c.l.c. 910. 2 (1816) 1 mer. 572, [1814-23] all e.r. rep.!, 35 e.r. 781. 3 supra.n.1 per woolfl.j. at 39a: " ...short of the house of lords, it is settled law that the rule in clayton's case can be applied to determine the extent to which, as between each other, equally innocent claimants are entitled in equity to moneys which have been paid into a bank account and then subject to the movements within that account." this is an unenthusiastic statement ofwoolfl.j.'s view of the existing law. nor is leggatt l.j.'s acceptance of the application of clayton's case overwhelming at 43b: "during the 175 years since the rule in clayton's case was devised neither its acclaim nor its application has been universal." 43 denning law journal been greeted with enthusiasm by courts in the united kingdom, 4 should have a significant role to play. even in the absence of reconsideration of clayton's case by the house, the extent to which, if at all, present authorities constrain such suggestions, will be questioned. for the purposes of this discussion, it will be assumed that the equities between each claim are equal. 5 the existence of an initial fiduciary relationship, allowing tracing in equity, will be assumed. 6 there seems little doubt that courts in the united kingdom lean towards a pari passu approach to distribution,7 and there are circumstances where this is the fairest approach. for example, suppose a trustee pays £100 of alpha's money and £200 of beta's into a mixed fund and then dissipates £150, leaving £150 in the account. it is 4 however, in barlow clowes, leggatt l.j. observed at supra.n.1 at 44c: "as between beneficiaries to whom money in an account belongs, they should share loss in proportion to their interest in the account immediately before each withdrawal. the fairness of that course is obvious. it is exemplified by the judgment of the court in re ontario securities commission v. greymac credit corp.(1986) 55 o.r. (2d) 673. but if, as here, that calculation is too difficult or expensive, the beneficiaries should in my judgment share rateably." this is a clear endorsement of the rolling charge in any case where calculation is not too difficult or expensive. 5 in other words, excluding the situation in cases such as re hallet's estate (1880) 13 ch.d. 696, where the mixing was done by a trustee. re diplock [1949] ch. 465 is authority that re hallett's estate does not apply where funds are mixed with those of a volunteer. in westdeutsche landesbank girozentrale v. islington l.b.c. [1996] 2 all e.r. 961 at 987, lord browne-wilkinson's reductio ad absurdum involving t, ri and r2, depends on re hallett's estate applying to r2, who is a volunteer, but this in tum depends on the bank's argument being correct, a proposition which all their lordships rejected, although a minority would have held in the bank's favour on another issue. 6 a requirement restated by lord browne-wilkinson in westdeutsche ibid. at 996e. 7 the house of lords had to strain to reach this result in sinclair v. brougham [1914] a.c. 398 where the shareholders and depositors could be regarded as equally innocent or equally guilty: e.g. at 451-452 per lord sumner, who observed that although few if any suspected that the banking business was ultra vires, all had notice of the rules, and so ought to have known. either way, the equities between them were equal. see also barlow clowes supra. n.1 and re diplock's estate supra.n.5, except for the claims involving dr.bamardo's homes and the national institute for the deaf, where clayton's case was applied: see infra.n.17 & text also supra.n.5 at 551-554, and in the case of the national institute forthe deaf [1948] 2 all e.r. 429. though sinclair v. brougham was overruled in westdeutsche supra.n.5 at 996f, this was on the grounds that equitable tracing ought not to have been possible at all, rather than on the principles of pari passu distribution. 44 in defence of the north american rolling charge difficult to argue that any result is fairer than pari passu distribution, giving £50 to alpha and £100 to beta. it would certainly be difficult to argue that a fairer solution would depend on the order in which the moneys were deposited. by contrast, an application of the rule in clayton's case would benefit the later depositor: if alpha's money were deposited first, alpha would obtain nothing, whereas if beta's money were deposited first, beta would obtain only £50 but alpha would lose nothing. so here, pari passu clearly leads to a fairer distribution than clayton's case. however, it by no means follows that pari passu necessarily achieves a fairer result. suppose that the above example is varied, in that for some time prior to paying beta's £200 into the mixed account, the trustee has been using the account for depositing payments from alpha, and that a total of £400 of alpha's has been paid into the account at some time. however, over the same period the trustee has dissipated some of the money, so that only £100 remains. then beta's £200 is paid in, and as before, a further £150 dissipated, leaving £150 in the account. in this case, a pari passu distribution would give the alpha the benefit of the entirety of the £400, implying that he has contributed twice as much to the fund as beta. thus, alpha would get £100 and beta only £50. this seems unfair on beta, who is now adversely affected by payments into and out of the account prior to the mixing. a similar point is made by lord justice dillon in barlow clowes, where contrasting clayton's case with pari passu, he observed that pari passu operates against later investors where money has been dissipated from the account: "for my part, so far as fairness is concerned, i have difficulty in seeing the fairness to a later investor ... of holding that all those moneys must be shared pari passu by all investors early or late if there was no common investment fund ... if the application of clayton's case is unfair to early investors pari passu distribution among all seems unfair to late investors."g if, on the other hand, the £300 which had been withdrawn prior to beta's deposit, had been committed to an investment now worth £600, beta obtains a share in the investment on pari passu principles, even though there is no meaningful sense in which his or her money was used. where money is profitably invested, rather than dissipated, pari passu tends to benefit the later b supra. n.l at 32c. 45 denning law journal investors. by contrast, an application of the rule in clayton's case would benefit beta in the first case, where as before, alpha would obtain nothing, and benefit alpha in the second. here, alpha would get the entirety of the investment, and beta would only obtain the benefit of the money remaining in the account. these solutions are not obviously any fairer than pari passu, since in neither case does alpha obtain any benefit from what remains in the account, although £100 remained prior to beta's investment. so here, neither pari passu nor clayton's case leads to a fair solution. a third approach, sometimes referred to as the north american rolling charge, has been met with little enthusiasm by the courts, 9 but could if adopted resolve both the above problems of the pari passu approach, without leading to any of the unfairness of clayton's case. here the case in principle for the north american rolling charge will be examined along with its limitations, and the authorities for and against its adoption. the working of the north american rolling charge the north american rolling charge was described by lord justice woolf in barlow clowes as follows: "this solution involves treating credits to a bank account made at different times and from different sources as a blend or cocktail with the result that when a withdrawal is made from the account it is treated as a withdrawal in the same proportions as the different interests in the account (here of the investors) bear to each other at the moment before the withdrawal is made."l0 9 e.g. in barlow clowes supra. n.1 at 28a-b, dillon l.j.(at 33d) said: "the complexities of this method would, however, in a case where there are as many depositors as in the present case and even with the benefits of modem computer technology be so great, and the cost would be so high, that no one has sought to urge the court to adopt it, and i would reject it as impracticable in the present case." woolf l.j. took a similar view at 35j, but also observed that it is the fairest method in some situations. dillon l.j. thought it had in any case been ruled out by authority, having been decisively rejected in re diplock; leggatt l.j. took a slightly more favourable view of the principle. 10 supra.n.1 at 35h. a functionally similar description can also be found in dillon l.j.'s judgment at 27h-28b. 46 in defence of the north american rolling charge applied to the first example above, the north american rolling charge will give exactly the same result as pari passu. in the second example, where the money is dissipated before beta's money is paid in, it gives the same result as in the first example, because all the dissipations are regarded as alpha's, surely the fairest solution? where instead of being dissipated, the money is committed to the investment which has doubled in value, the result is still the same regarding the bank account, but alpha also gets the benefit of the totality of the investment. this also seems fairest, as beta has not, in any meaningful sense, contributed to the investment. it is also a fairer solution, in this situation, than clayton's case, because alpha's money was not exhausted by the purchase of the investment, and it is therefore reasonable that he retains an interest in the money remaining in the account. the case in principle for the north american rolling charge in spite of the reluctance of the courts in the united kingdom to embrace the north american rolling charge, it is contended that it has a number of advantages, and will normally be the fairest method of distribution. one advantage is that prior property rights are never disturbed by later transactions. later payments in do not diminish existing interests in the remaining fund, nor do later payments in obtain the advantage of earlier investments. there is also no distortion of existing beneficial interests in any property purchased from proceeds from the fund. another justification in principle is that once moneys have lost their identity by being mixed into an account, the proportions attributable to each contributor can be calculated. these proportions should not change if tlle account is later diminished, or split into more than one account. this was of the view taken in scott on trusts, in a passage quoted in re ontario securities commission v. greymac credit corporation: " ... the claimant has an equitable lien upon the mingled fund, and when a part of the fund is withdrawn he has an equitable lien on the part withdrawn and on the part which remains. if tlle part which is withdrawn is dissipated so that it can no longer be traced; the claimant still has his equitable lien on the part which remains. so also, as we shall see, if the part which is withdrawn is preserved and the part which remains is subsequently dissipated, the 47 denning law journal claimant has an equitable lien upon the part which is withdrawn. it is impossible and unnecessary to detennine whether the claimant's money is included in the part withdrawn or in the part which remains. it is impossible to detennine which part is the claimant's money, since his money has been so commingled as to lose its identity. it is unnecessary to detennine which part is the claimant's money, since he is entitled to an equitable lien upon both parts . ... it is true that where the part of the fund which is withdrawn is dissipated and the balance is preserved, the claimant is certainly entitled to payment of his claim out of the balance. the reason is that his lien on the entire fund undoubtedly includes the balance of the fund after a part has been withdrawn . ... the only tenable principle is that the claimant can enforce a lien upon any part or the product of any part of the mingled fund."! i in re ontario securities, the court of appeal for ontario adopted the north american rolling charge in a claim involving competing interests in a fund. in essence, this case involved the account of a trustee, (greymac credit corporation)[g.c.c.] in which was deposited funds entrusted to g.c.c. for two beneficiaries. one beneficiary was a trio of companies, greymac trust company [g.t.c.], crown trust company [c.t.c.] and seaway trust company ["the companies"], and the other was chorny mortgage investor participants ["the participants"]. the moneys of these two separate beneficiaries were mixed by the trustee into his account at g.t.c. the money first mixed into the g.t.c. account belonged to the companies, and only later did the trustee mix in money belonging to the participants. there was also some money of the trustee's own, but on the reasoning in re hallett's estate,12 at the time when the participants' money was placed in the account, all the other money in it belonged to the companies. prior to this, however, there had been other payments in of companies' money, and withdrawals, so that more money belonging to the companies had been paid into the account than remained at this time. ii scott on trusts (3rd.ed., little brown, 1967) at pp.3620, 3623 & 3624, quoted in re ontario securities commission v. greymac credit corporation (1986) 55 o.r. (2d.) 673 at 682a-b (ont.c.a.). 12 supra.n.5 (because all money withdrawn was therefore presumed to belong to the trustee). 48 in defence of the north american rolling charge the first withdrawal made by the trustee was of $4,000,000, which was placed into another account (at one of the beneficiary "companies", c.t.c.). this money remained intact. later, the trustee made several subsequent withdrawals from the g.t.c. account, the proceeds of which were dissipated. this left just under $400,000 in the original mixed account. both beneficiaries, "the companies" and "the participants," each asserted proprietary claims against these two amounts. what the court had to decide was how these funds should be divided between the claimants, and upon what principle this should be done. at first instance, parker a.c.j.h.c. held that the loss must at first be deemed to be against the trustee's interest, on re hal/ett 's estate reasoning. 13 this aspect of the decision was not part of the appeal heard in the supreme court. then, mr.justice parker decided that the funds should be divided according to the respective contributions made by, or on behalf the two beneficiaries. this meant that approximately 85 per cent of each fund belonged to the companies and 15 per cent to the participants. the companies appealed from the original decision, claiming essentially that they were entitled to the entirety of the larger sum (they conceded that they were not entitled to any of the smaller sum, but the total on this basis still worked out better for them). they claimed that the judge was mistaken in basing the distribution on pro rata principles, when instead, the rule in clayton's case should have been applied. on the "first in, first out" reasoning, the first moneys paid into the trustee's account at g.t.c. were those of the companies, and subsequent deposits were those of the participants. thus, when the trustee removed the money from the g.t.c. trust account, and deposited it with c.t.c. (i.e. the large undissipated sum), the money concerned must necessarily have been that of the companies. at first instance, mr. justice was critical of clayton's case, but the appellants challenged his decision basing their action on both principle and authority. the companies advanced an alternative pari passu argument. their argument was that the time from which the calculation of shares should start should be earlier, since more money had originally been deposited by the companies into the g.t.c. account, and that this also should be taken into account in any distribution. the participants insisted that the view of mr.justice parker was correct, but also advanced alternative arguments, with which the ontario court of appeal 13 51 o.r. (2d) 212. 49 denning law journal was wholly unimpressed, that clayton's case only applies to dissipations from a mixed fund, not to investments made with money from it, and therefore that the rule applied only after the removal of the $4 million to the c.t.c. account.14 the court of appeal adopted mr.justice parker's approach, but rejecting the companies' argument that the starting point should be earlier, since at the earlier time there was no participants' money in the g.t.c. account, and that therefore the participants should not be contaminated by anything that had occurred at this time: "the appellants submit that if the equality, that is, pro rata sharing, approach is to be followed, then to do justice more money furnished by the companies to the trustee than the ... balance of december 15, 1982 [when the participants' money was paid in] should be taken into account. ... if the proper approach is equality, then, it is submitted, this fact [earlier payments in by the companies] should be taken into account. ... quite apart from the fact that the question of whether any part of the original [money in the account prior to december 15, 1982] ... was returned to the companies in some form was not inquired into, i do not think that this particular argument of the appellants is of assistance to them. we are concerned with the resolution of competing proprietary, not personal, claims. at the time of the mingling of the trust funds the companies had $4,683,000 in the account. regardless of how much they had earlier in the account, they cannot say that they had a proprietary interest in any more than the amount in the account to their credit on and after december 15, 1982."15 although the words "north american rolling charge" do not appear in the judgments, the case is clearly based upon the concept, and justifies it. to summarise, the main argument in favour of the north american rolling charge is that it does not allow later dealings to affect already-established property rights. however, in re ontario securities, mr.justice parker accepted that there might be practical difficulties, in certain circumstances, in adopting the rolling charge, in which case he made no observations on the appropriate 14 supra.n.ll at 68ih-682a. 15 ibid. at 687f-688c. 50 in defence of the north american rolling charge method of apportionment: "i express no opinion on the power of the court to make a disposition on some other basis where it is not possible to determine what proportion the mixed funds bear each to the other."16 the view of the court of appeal was that it would not apply clayton's case at all to the resolution of problems connected with competing beneficial entitlements to a mingled trust fund, where there have been withdrawals from the fund. practical observations on the north american rolling charge there are two further points to note about the north american rolling charge, both of which may explain why it has rarely been argued in tlle united kingdom. first, it will not often be the best option of either party to any dispute. in a case such as barlow clowes, for example, a pari passu distribution would have produced a more favourable outcome than the north american rolling charge for the early investors. by contrast, the later investors were better off arguing clayton's case than the north american rolling charge. this will generally be the position where money is dissipated, whereas the north american rolling charge tends towards an intermediate result. the opposite position obtains where a valuable investment is purchased, where pari passu benefits later investors, and clayton's case earlier, and again the nortll american rolling charge adopts a middle position. for example, suppose a trustee places £10 belonging in equity to paul into an account, then a further £10 belonging to michael, then dissipates £10, then places in the account a further £20 belonging to karen. there is therefore, at this stage, £30 in the account, whereas a total of £40 has been paid in. pari passu therefore gives everybody three-quarters of their contribution, i.e. £7.50 to each of paul and michael, and £15 for karen. it is worth observing that karen has lost out because of the withdrawal of £10, a transaction which 16 quoted in ibid. at 679g. 51 denning law journal occurred before she had paid anything in, and in which she was therefore in no sense involved. clayton's case attributes the whole of the £10 dissipated to the first payment in, so that paul ends up with nothing in the account, and michael and karen recover the entirety of their contributions. this seems very unfair on paul, whose equity would seem to be in no way distinguishable from michael's. the north american rolling charge recognises that paul's and michael's equities are equal, and apportions the £10 dissipated equally to the two of them. karen is unaffected by the £10 withdrawal, and the distribution is therefore £5 to each of paul and michael, and £20 to karen. in this case, nobody has a clear advantage in claiming under the north american rolling charge, although karen obtains the same by this method as she would under clayton's case. paul obtains more under pari passu than under the north american rolling charge, whereas michael obtains more under clayton's case. if instead of being dissipated, the £ lois spent on a first edition now worth £50, the total value of the fund plus the investment is now £80, or twice the contribution of each of the parties. pari passu therefore gives each twice their contribution, i.e. £20 for paul and michael, and £40 for karen. this time, karen has gained the benefit of an investment to which she cannot have made any meaningful contribution. clayton's case attributes the entirety of the investment to paul, who can therefore claim its value of £50, and the others obtain exactly their payments in, i.e. £10 for michael and £20 for karen. yet paul's and michael's equities would again seem to be equal. the north american rolling charge recognises this by attributing the investment equally to paul and michael, giving each £25 in the investment plus the £5 each has remaining in the account (i.e. a total value of £30 each). karen obtains her payment in, of £20, which is fair, because she has not contributed to the investment. once again, it is in neither paul nor karen's interests to claim the north american rolling charge method of distribution. paul will attempt to argue clayton's case and karen pari passu. however, it should not be assumed that the north american rolling charge will never be the preferred method of distribution, since clearly michael should claim it here. moreover, in the original example, where the investment was purchased with alpha's money, the north american rolling charge would have been his choice method of distribution, as indeed it also was for the participators in the re ontario 52 in defence of the north american rolling charge securities case. in general, however, it will rarely be the preferred method of distribution for any of the parties, which may explain why it has never been argued in a court in the united kingdom. the second observation to make on the north american rolling charge is that it will never be the cheapest method of distribution. to operate a pari passu distribution, the only information that is required is the total of payments into the mixed account, and the total remaining. there is no need to trace the individual movements within the account, so that where there are a large number of transactions, as in sinclair v. brougham or barlow clowes, pari passu will obviously be the easiest method. where money from an account is dissipated, the rule in clayton's case removes from the account all earlier deposits, so that it is not necessary to know about them, or about the total of payments into the mixed account. there are some situations, therefore, where pari passu is more difficult to operate than clayton's case. suppose, for example, that a trustee has been paying money from various trust funds through a mixed account over a long period. on a pari passu distribution, assuming the fund has remained in credit, every contributor whose account is in credit will have some claim on the fund. this would require all the account's dealings over the entire period to be examined, and it is easy to conceive of circumstances where this is impracticable. this is a possible justification for applying clayton's case to running bank accounts, 17 which has the effect of depriving all but the latest depositors of any interest. clayton's case operates capriciously, however, and is difficult to justify except to resolve the impracticality. 18 where on the other hand, payments from a mixed account are committed to a profitable investment, clayton's case can also sometimes operate more simply than pari passu, because any moneys paid in after the investment was made will be discounted. again, therefore, there is no need to enquire into these, or into the total of payments into the account. to operate the north american rolling charge, unless the account has at some stage become overdrawn, it is necessary to examine the whole history of 17 e.g. in re diplock in respect of the dr.bamardo and the national institute for the deaf accounts: supra. n.7. 18 the courts appear to adopt clayton's case only as a last resort, and have shown reluctance to extend its operation beyond running bank accounts; e.g., barlow clowes supra.n.l at esp. 28c-e per dillon l.j.; re diplock's estate supra.n.s (except for the running bank accounts referred to supra.n.7). 53 denning law journal the account, the amount of every payment in and out, and the order of payments. this is always likely to be at least as difficult as either of the alternative methods of distribution, and will often be more difficult. cases in principle where the applica non of the north american rolling charge would not be appropriate although the north american rolling charge reaches the fairest result in usual circumstances, it depends on the intention of the parties being that later payments should not affect earlier established rights. however, where the intention is to share a collective fund, the parties will intend that later payments should affect earlier established rights, and pari passu distribution will accord with this intention. this is a possible justification for the result in barlow clowes, 19and will often be a reasonable inference in unincorporated association cases. 20the intention of the parties was also regarded as justification for departure from the north american rolling charge in ontario itself: "another exception, an obvious and necessary one, which might often overlap with the kind of case just referred to, would be the case where the court finds that the claimants have, either expressly or by implication, agreed among themselves to a distribution based otherwise than on a pro rata division following equitable tracing of contributions."21 19 indeed, this was expressly the basis of dillon and leggatt l.jj.'s reasoning in the case. woolf l.j.'s reasoning was based more generally on the intention of the parties, but again depends on the notion of the parties contributing to a common misfortune, so that they would not want to 'subject what was left of the pool to the vagaries of chance which would follow from the first in first out principle' supra.n.1 at 41e-h. the reasoning was directed primarily to a refusal to apply clayton's case, but it would have been equally apposite in an argument against the application of a north american rolling charge. 20 it might also justify the pari passu distribution in sinclair v. brougham supra.n. 7, at least as far as the building society investments were concerned. the usual presumption for unincorporated associations is equality, rather than pari passu distribution, re hobo.urn aero components air raid distress fund [1946] ch.86, affirmed on other grounds [1946] ch.194, which adopted pari passu, being an exceptional case. 21 supra. n.ll at 690e. 54 in defence of the north american rolling charge another departure from the north american rolling charge (or indeed, any of the approaches considered so far) was made by mr.justice millett in el ajou v. dollar land holdings p.l. c.. 22here, while it was clear that the plaintiff was the principal victim of a complicated fraud, and that the defendant's only money appeared to have come from the proceeds of the fraud, the records of transactions had not been fastidiously kept, the fraudsters presumably being motivated to hide their fraud, and frustrate tracing claims. clearly, it would have been impossible to apply either clayton's case or the north american rolling charge, given this paucity of evidence. possibly, had mr.justice millett had the benefit of the barlow clowes decision, which had not at that time been reported,23 he would have adopted a pari passu approach. instead, however, he matched large cheques from the plaintiff into a running account with similarsized cheques out of it, in order to establish that the defendant had received money belonging in equity to the plaintiff. 24 this might be justified if the similarity between the cheques in and out gave rise to the inference that the plaintiffs money was never truly mixed into the running account.25 although mr.justice millett held that the money could be traced into the hands of the defendant, he also held that the defendant did not have the requisite knowledge for a knowing receipt claim. his decision in this respect was reversed by the court of appeal, 26who sent it back on quantum. in el ajou v. dollar land holdings p.l.c. (no.2), mr.justice robert walker took the view that where there are no competing proprietary claims, and all that is desired is to trace the plaintiffs property into the hands of the defendant for the purposes of establishing a knowing receipt claim, it is unnecessary to apportion 22 [1993] 3 all e.r. 717. 23 as robert walker 1. observed inei ajou v. dollar landholdings p.l.e. (no.2) [1995] 2 all e.r. 213 at 222f. 24 e.g. supra.n.22 at 724j-725e, although the matching was not exact. the claim was in knowing receipt, not tracing: see further infra.n.26 & text. 25 although millett 1. appears to have proceeded on the assumption that it was: supra.n.22 at 724h. but the suggested inference is reasonable, whereas if the money had been truly mixed, then it is difficult, on any known principle, to justify millett 1.'s method of calculating the amount the defendant had received of money belonging to the plaintiff. 26 [1994] 2 all e.r. 685. 55 denning law journal competing claims at all. 27 his desired result appears to have been to ensure that the defendant obtained no benefit from the fraud, although there were other claims, apart from the plaintiff's, when it looked unlikely that any of the other claimants would sue. however, this distinction between apportioning for proprietary, but not for personal claims, can lead to difficulties in practice.2& suppose, for example, any of the others, contrary to expectation, had sued. either the defendant would be liable for more than he had received, or it would be necessary to resolve the problem on an arbitrary first come first served basis. there is also a principled objection to mr.justice robert walker's approach, which is that although the defendant had apparently received a large amount of money from the proceeds of fraud, not all of it was from a fraud on the plaintiff. if fraud victims, for whatever reason, decide not to sue, then it is an inevitable consequence that the fraudster will keep some of his ill-gotten gains. that is simply the nature of litigation, and is not a consequence that can be avoided. it is therefore contended that an apportionment should have taken place in ei.jljou (no.2), on the principles discussed in this article. in this section, however, two situations where the north american rolling charge would be inappropriate have been considered, namely where the investment is into a common fund, as in barlow clowes, and where the money is never truly mixed, which is a possible explanation of mr.justice millett's approach in el ajou. in any case where justification from the north american rolling charge can be made out in principle, the justification is in favour of pari passu, or an entirely different tracing principle, such as that adopted inei ajou, rather than clayton's case. the only justification for adopting the rule in clayton's case is one of administrative workability, especially in the case of a running bank account, where both pari passu and the north american rolling charge would be difficult to operate, in the first case because it is difficult to apportion where there have been many payments into and out of a fund over many years, and in the second case because for the same reason, it is difficult to apportion payments out. therefore administrative workability arguments are considered next. 27 supra. n.23. 28 it is not sufficient, as robert walker 1. does, ibid. at 223c, to justify the result on the basis that tracing depends on equity's capacity to impose a charge, rather than its actual imposition, because if the other parties had sued it would have been necessary actually to determine the extent of each charge. 56 in defence of the north american rolling charge administrative workability arguments it is easy to see how, in the case of a long-term active running account, from which money is frequently dispersed, clayton's case is the easiest test to administer, because the earliest payments in are simply removed from the equation. it might be thought that in the usual case, the north american rolling charge will also be easier to administer than pari passu (at least where there are dissipations) because each withdrawal reduces the number of claimants, so the earliest depositors will be ruled out just as they are with clayton's case. this is only actually going to be the case, however, if the earlier dissipations are such as to reduce some claims to zero, but in principle, both pari passu and the north american rolling charge require the entire history of the bank account to be known. however, pari passu is itself sometimes justified on the grounds that it is easier than either of the other two methods to administer, 29 and indeed, there are exceptional cases where this will be true. in barlow clowes and el ajou, for example, the total investment, and the total remaining in fund, were both known, but in el ajou, inadequate records had been kept, and there was an inadequate trail, which would have made either of the other methods impossible. in barlow clowes there were a large number of transactions, which would have made either of the other methods difficult, but not impossible. 30 it is suggested, however, that neither of these cases represents a good ground for departing from the north american rolling charge. in a case such as el ajou, it would clearly be inappropriate, on public policy grounds, to develop a rule which encouraged fraudsters to keep inadequate (or no) records, or allowed them to benefit from so doing. it was pretty clear in el ajou that the only money the canadians had was derived from the frauds considered in the case, so to distribute pari passu would have been to deprive the fraudsters of any of their gain, whereas this would not have been the case had every individual claimant been required to prove his or her entitlement on a 29 e.g. report of the review committee on insolvency law and practice (cork report, cmnd. 8558, h.m.s.o., 1982) paras. 1076-1080; barlow clowes, where cost was one of the reasons why none of the parties argued for a north american rolling charge distribution: supra.n.l at 28b per dillon l.j., at 35j per woolfl.j. 30 per woolfl.j. supra.n.l at 35j (on the north american rolling charge). pari passu would also have been easiest to apply in hobourn aero supra.n.20 where like barlow clowes the total investment and total fund remaining were both known. 57 denning law journal rolling charge basis. however, this problem is easily resolved by evidence presumptions. if in the absence of contrary evidence, payments in and out are considered to be simultaneous, then there will be a pari passu result. only if there is contrary evidence will this presumption be displaced, and the sensible solution would therefore seem to be simply to place the burden of proof on the party claiming that the transactions occurred in a particular order. the problem in barlow clowes is different, because in principle, it would have been possible to apply either of the other two tests. it would, however, have been expensive, and indeed the cost might have been so great as seriously to dissipate what remained in the fund. this will not always be the case in the silicon age, as mr.justice parker observed in the ontario case: "the application of the general equitable rules of tracing refelted to supra is both logical and fair. in this age of computerized banking, it can hardly be argued that in most instances an application of such principles will cause much inconvenience, difficulty or complication. these same principles are often applied to quite complicated dealings which do not involve bank accounts. "31 the general rules of tracing to which he was referring were, in effect, the north american rolling charge. 32 this case is over a decade old, and it is reasonable to suppose that computerised banking has made the necessary calculations easier in the meantime. however, it is accepted that there may still be some cases, such as barlow clowes, where the number of transactions is very large, where expense may still be a major issue. it has already been suggested that on other grounds, pari passu distribution was the most appropriate solution in barlow clowes, but if there had been no intention to form a common fund, it is felt that the expense arguments would not have justified departure from the north american rolling charge. in the first place, there is the problem of deciding at what stage the departure should be made, especially given that such departure might affect already-established rights. it is suggested, however, that there is no need to invoke a special rule to 31 51 o.r. (2d) 212 at 239-240, quoted in (1986) 55 o.r. (2d) 673 at 679h (ont.c.a.). 32 although the expression "north american rolling charge" is never actually used in the case. 58 in defence of the north american rolling charge deal with this situation. if the cost of applying a particular method of distribution becomes so great as to dissipate a large part of the fund, it is clearly in the interests of all the parties to agree to some simpler form of settlement. in principle, this is no different from any other kind of litigation over limited funds. if one party can still see a clear gain from the application of the north american rolling charge, then it is for that party to bring the case, with the attendant litigation risks and costs. there are, in any case, problems with basing a legal rule on the comparative costs of distribution methods, since especially in the age of computerised banking, these comparative costs can alter. it would be absurd to set in stone a particular distribution method, on the basis of comparative costs, when these could quickly go out of date. it is even possible to envisage situations where the difficulty and/or expense increases or decreases during the proceedings, perhaps because a cheaper method is developed of getting data into electronic form, or the only witness of fact dies, or records are destroyed. it would be absurd to alter the distribution method, thereby affecting established property rights. once it is accepted that this cost is, in principle, no different from any other litigation cost, then these problems disappear. authority argument has been made so far for the general adoption of the north american rolling charge except in cases where it would be inappropriate, for example, where the parties are contributing to a common fund. if the applicability of clayton's case is resolved in the house of lords, as lord justice woolf suggested in barlow clowes, 33 then previous authority would not impede the development of the law, but in the meantime it is necessary to examine the authorities against the proposition for which argument is made. despite lord justice dillon's view in barlow clowes that there was clear authority against the adoption of the north american rolling charge, 34 it is suggested that such authority as there is unconvincing. there are a number of authorities for a pari passu method of distribution, but none of these is conclusive against the north american rolling charge, because either individual tracing issues were not decided, or the result would 33 supra.n.3. 34 supra.n.9. 59 denning law journal have been the same even if the north american rolling charge method had been used, or the case falls within one of the exceptions for which we have already argued. in sine/airv. brougham, the house of lords held that a fund consisting a building society and ultra vires banking investments be held on a pari passu basis, and there is no doubt that a north american rolling charge basis of distribution would have led to a different result, except in the unlikely event that all investments were made simultaneously. however, it has already been suggested that at least for the building society shares, a pari passu distribution was probably justified as a common investment, and this may also vindicate its use in the distribution of the ultra vires banking investments. in any case, however, the house seemed concerned only to ascertain the respective distributions as between the two classes of investor, rather than determine individual entitlements, since the order was made subject to any individual tracing claim that may have been made. 35 sinclair is therefore not authority against the applicability in english law of the north american rolling charge. there was also a pari passu distribution in re diplock, except for the running bank accounts, but diplock also is not a strong authority against the north american rolling charge, because there was only one diplock investment into each fund, and therefore the result would have been the same had the north american rolling charge method been adopted; in bar/ow clowes, pari passu was used, and the north american rolling charge method was considered too difficult to apply, but the ratio of the case is probably confined to common investment funds. 36 certainly, lord justice dillon would not have applied pari passu except to a common investment, but it is also worth observing that none of the parties advanced a north american rolling charge argument. the debate was therefore confined to the relative merits of pari passu against clayton's case, and the opportunity to consider serious arguments for the north american rolling charge did not arise.37 it is contended that clayton's case ought never to be applicable to the resolution of competing equitable property interests. clayton's case itself concerned the allocation of legal choses in action to amounts of money in a 35 on this point alone the case was overruled in westdeutsche supra. n. 7. 36 supra.n.19. 37 dillon l.j. also thought that the north american rolling charge was ruled out on the grounds of authority, and in particular the cases discussed in the following paragraph: supra.n.9. 60 in defence of the north american rolling charge bank account. the dispute was between banker and customer, and in this particular context, as a rule of convenience based on implied intention it was probably justified. mcconville has argued strongly that there is no justification for applying clayton's case beyond that context, 38 but in pennell v. deffell,39 the principles from the case were extended to the distribution of competing proprietary claims to money in a bank account. the case is a weak authority, however, because as between beneficiaries and trustee the case was overruled in re hallett's estate, 40 and as between the beneficiaries themselves there was enough to go around anyway. in re diplock, clayton's case was used, as part of the ratio, in respect of the dr. barnan:io and national institute for the deaf funds, but unenthusiastically, since the main purport of re diplock is to apply pari passu where the equities are equal. 41 clayton 's case was applied only to running bank accounts, as a rule of convenience, and was said to be based on implied intention, which of course is rebuttable. it is also unlikely that anybody had even thought of the concept of the north american rolling charge by the time of the decision, let alone of applying it. it is argued, therefore, that the authority is not strong, but it was used by lord justice dillon in barlow clowes as court of appeal authority for the rejection of the north american rolling charge. it is difficult, however, to justify clayton's case on the basis of implied intention in re diplock, since the next-of-kin and the charity had never had any contact with each other; indeed, the charity was unaware of the existence of the next-of-kin. clearly, therefore, there was no common intention, and since the next-of-kin was unaware of the destination of the money, their intention cannot have been relevant. the only intention therefore which can be relevant is that of the charity, the volunteer who does the mixing, and it is suggested that to found a principle on the basis of the intention of the volunteer recipient is absurd. it can be concluded that there is no convincing authority against the development of the north american rolling charge, but that in so far that it is ruled out by any statements made in re diplock, those statements should be regarded as wrong. in bar/ow clowes, only lord justice dillon perceived that the north american rolling charge had been ruled out by authority; lord 38 d.a. mcconville, "tracing and the rule in clayton's case" (1963) 79 l.q.r. 388. 39 (1853) 4 de g.m. & g. 372,43 e.r. 551. 40 supra.n.5. 41 supra. n. 7 & text, & n.17 & text. 61 denning law journal justices woolf and leggatt would both have been prepared to apply it had they considered it appropriate in the circumstances. it is suggested, therefore, that even in the absence of a decision of the house of lords reconsidering clayton's case, the courts could adopt the principles which have been argued for in this article. 62 time-charter stowage clauses in a bill of lading contract* russell harlingt in the coral the court of appeal considered the mechanics and the effect of incorporating clauses 2 and 8 of the new york produce exchange [nype] form into a bill of lading contract. their deliberations were inconclusive, as the matter came before them on an appeal against an application for summary judgment. but their decision stands for a continuation of the line of authority in which the english courts have tended to favour the use of clauses in bills of lading incorporating the terms of charterparty i. the court ruled firm! y, however, that a charterparty clause which removes from the shipowner responsibility for loading and stowage and places it on the charterer will be given effect as a definition of the scope of the contractual service provided to the shipowner, in accordance with the rule in pyrene v. scindia.2 such a scope of responsibility clause will not be rejected in the context of the bill of lading for incompatibility with the carrier's obligations under common law or under the hague visby rules properly to load and stow the cargo. the facts and proceedings the coral was chartered on the nype form, clause 8 of which provides, in relevant part: " .. charterers are to load, stow, trim and discharge the cargo at their expense under the supervision of the captain ... " clause 2 ofthe nype form makes related provisions to the effect that the charterers are to provide the requisite dunnage and shifting boards but are to have use of any such materials already on the ship. a self-trimming bulk carrier, the coral loaded at durban a consignment of steel in sheets for trabzon in turkey under bills of lading issued by the charterer on behalf of the owner. the bills of lading contained a clause paramount incorporating the haguevisby rules and a clause stating: * balli trading ltd. v. afabra shipping co. ltd. (the "coral") [1993] 1 lloyd's rep. 1. t thomas miller p&i 1. see adamastos shipping co. ltd. v. anglo-saxon petroleum co. ltd. [1959] a.c. 133; the merak [1965] p.223; the annefield [1971] p.168; the rena k [1978] 1 lloyd's rep. 545. 2. infra. n.11 61 the denning law journal "all terms and conditions, liberties and exceptions of the charterparty, dated as overleaf, are herewith incorporated." the steel was loaded in two parcels, each in a different hold. a surveyor appointed by the shipowner's p&i club attended the loading at durban and found that all reasonable precautions had been taken in handling and stowing the cargo. both holds also contained other cargo bound for the intermediate port of diliskelisi. the diliskelisi cargo was duly discharged, but the steel sheet was not restowed. as a result it may have been left partially unsupported in the half-empty holds. on the voyage from diliskelisi to trabzon the ship ran into heavy weather (winds force 6 to 8) resulting in a collapse of stow, damaging approximately one-third of the steel cargo. the consignees brought an action against the shipowner and applied under order 14 of the rules of the supreme court for summary judgment against them on the ground that they had no arguable defence. sheen, j., gave the shippers liberty to sign judgment for damages to be assessed. he held that the shipowner's defence turned on a question of law, namely the interpretation of the charterparty clause when incorporated by reference into the bill of lading, which question could and should be determined on an application for summary judgment. he held that the clause meant only that the stowage would be performed by the charterer and did not amount to an allocation of responsibility for stowage as between the shipowner and the bill of lading holder. at the time, his judgment caused a frisson of apprehension amongst the legal advisers of shipowners, as appearing to presage a wave of applications for summary judgment in cargo claims. summary judgment and questions of construction the court of appeal reversed the decision of sheen j., for one principal reason: that the merits of the case ought not to have been determined on an application for summary judgment. the court agreed that if the interpretation of the charterparty clause had been in favour of the consignees, then the shipowner had not raised an arguable defence. but if the shipowner's interpretation had been correct, then further factual issues would have remained to be determined at trial: in particular, whether the ship was unfit to carry this type of cargo by reason of the shape of her holds, as alleged by the consignees. for this reason they held that the proper construction of the bill of lading contract ought not to have been determined on summary judgment. 3 the case is therefore authority for the proposition that a question of construction ought not to be determined on an application for summary judgment unless such determination will be finally dispositive of the case one way or the other. thus the court of appeal had to decide merely whether the shipowner had an arguable defence, and for that reason were guarded in their approach to the questions raised. 3. supra. pp.8-9. especially p.9 col. 1. 62 time-charter stowage clauses in a bill of lading contract the shipowner contended that clauses 2 and 8 of the nype form when incorporated into the bill of lading contract amounted to an agreement that the carrier would not be responsible for stowage. the consignees contended that the clause did no more than state that performance of the carrier's obligation properly and carefully to stow would be delegated to the charterer. adopting the analysis in scrutton, article 34, two groups of issues may be discerned: issues concerning the meaning of the charterparty clauses in the context of the bill oflading; and issues concerning the consistency of the incorporated clauses with the other terms of the bill of lading.4 it had been conceded by the consignees that the wide words of incorporation were sufficient to apply to clauses 2 and 8 of the charterparty. the meaning issues the general approach of the court to the "meaning issues" was set out by beldam l.j.: the clauses were ... directly germane to the shipment, cariage and delivery of goods . . . and such causes may be treated as incorporated even though the precise words may need some modification."5 in support of this he cited the miramar, which is commonly thought to be authority for the view that the house of lords had set its face against verbal manipulation. 6 although lord diplock (delivering the judgment of the house in that case) began by undertaking to clarify to what extent, "if any", such verbal manipulation was permissible, the only definitive pronouncement his judgment yielded is that set out in the footnote which merely establishes that there is no presumption in favour of manipulation. there are suggestions that he might have been inclined to allow verbal manipulation if there were a "business reason" to do s07. the court of appeal in the coral have lent support to that view of the miramar, for nothing is made of the fact that the incorporated clauses made no specific reference to the bill of lading holders. the first and boldest argument for the shipowner was that the meaning of clause 8 of the nype form was laid down by authority. in canadian transport co. ltd. v. courtline ltd the house of lords had held that clause 8 placed both the duty to perform and the responsibility for stowage on the charterers. 8 it followed that the owners were not responsible for bad stowage. thus when the words were removed 4. mocatta, mustill and boyd (eds.) scrutton on chanerparties, 19th. ed. (london, 1984) pp.63-65. 5. supra. at p.5 6. miramar maritime corporation v. holborn oil trading ltd. [1984] a.c. 676 at p.683; [1984] 2 lloyd's rep. 129 and p.134 col.2, lord diplock. lord diplock said: ' ... this house should take this opportunity of stating unequivocally that, where in a bill of lading there is included a clause which purports to incorporate the terms of a specified charter-party, there is not any rule of construction that clauses in that charter-party which are directly germane to the shipment, carriage or delivery of the goods and impose obligations on the "charterer" under that designation, are presumed to be incorporated in the bill of lading with the substitution of ... the designation "consignee of the caro" or "bill oflading holder".' 7. [1984] 2 lloyd's rep. p.132 col.2; and p.133 col.2. 8. [1940] a.c. 934; (1940) 67 lloyd's rep. 262. 63 the denning law journal into the bill of lading contract they relieved the shipowner of responsibility for bad stowage. the court of appeal rejected this argument on the simple ground that the words did not necessarily bear the same meaning in the context of the bill of lading contract as they did in the charterparty. this must be right, as it is the very words which are incorporated into the bill of lading contract, not the meaning which the law has attributed to them using their original context as a guide to the parties' intentions.9 the same result may be reached by a different route, for canadian transport is authority only for the proposition that clause 8 makes the charterers responsible for stowage "as between themselves and the shipowners". indeed lord wright goes on to say, in support of this construction: "if [the charterers] do not perform properly the duty of stowing the cargo, the shipowners will be subject to a liability to the bill oflading holders. justice requires that the charterers should indemnify the shipowners against that liability ... " .10 the shipowner's other argument in support of their construction met with more favour. this was that there would be no point in incorporating clause 8 into the bill oflading contract unle~s it was intended to relieve them ofliability for bad stowage. it would be unnecessary to include the clause merely to permit the shipowner to delegate the performance of his duty to stow to the charterer, as he would have a perfect right to do that in any event. the court neither approved nor disapproved of this approach but the implication is that they thought it "arguable". for their part, the consignees urged that because there was no privity of contract between them and the charterer, they would have no contractual right of recourse for bad stowage if the owner's construction were correct, and that this in itselftold against the owner's construction. the loss of any recourse by the consignee for bad stowage was a result which the court was keen to avoid. beldam l)., suggested that an answer might be found in the law of agency; the consignee should be held to have made a contract with the charterer through the agency of the shipowner. it was said that this argument was first suggested by devlin j., in pyrene v. scindia. ii at all events, this stowage contract would come as a surprise to the principals and their agent. one object which this argument would have to meet would be that the shipper will frequently neither know the identity of the charterer nor have sight of the charterpaty terms until well after the contract of carriage with the shipowner has been made and the bill of lading signed. furthermore, the carriage of goods by sea act 1992 may well not transfer the benefit (or the burden, ifany) of this stowage contract to the consignee, who will usually be the party to suffer loss.12 9. hamilton & co. v. mackie & sons (1889) 5 tlr 677, lord esher, m.r. at p.677. 10. supra, n.8 at p.943. ii. but the question in that case was whether an f.g.b. seller had made a contract of carriage with the shipowner through the agency of the buyer: [1954] 1 lloyd's rep. p.330 col.2 12. the 1992 act transfers to the lawful holder of a bill of lading "all rights of suit under the contract of carriage", the contract of carriage being defined as "the contract contained in or evidenced by that bill of lading": 552(1) and 5(1). the act does not contemplate a bill of lading evidencing two separate contracts, one a contract of carriage and the other a contract of stowage. 64 time-charter stowage clauses in a bill of lading contract closely related is the suggestion that by performing stowage the charterer impliedly undertakes a contractual obligation to the shipper to use care and skill. the requisite intentions to contract seem equally lacking in this case, as does any means of transferring the benefit of the contract to the consignee. the court did not have to decide between these competing arguments but it willl be seen that in its willingness to find an avenue of recourse (for the shipper) against the charterer, it leant in favour of the shipowner's construction to some degree. the consistency issue if the charterparty clauses survived the meaning hurdle, the consignees sought to strike them down for inconsistency or incompatibility with the other terms of the bill of lading contract. the court rejected an argument (which may have appealed to sheen j., in the court below) that the shipowner had undertaken an obligation by virtue of the hague-visby rules properly and carefully to stow, which obligation could not be excluded by contract. in reply to this the court referred to the decision in pyrene that the object of the hague rules was not to define the scope of the contract of carriage, but the terms on which such services as were undertaking were to be performed. 13 significantly, the court appears to have rejected the notion that the haguevisby rules create even a primn fade obligation to load and stow properly and carefully. they were prepared to accept that such a primn facie obligation exists at common law. but the consignees' argument that the charterparty clauses should be rejected as inconsistent with that implied obligation proved too much "on that basis, however clear the term restricting the scope of the services undertaken by the owner, it would have to be rejected." 14 comment whilst it began life in the high court as a triumph for consignees, the court of appeal have made the coral very much an owner's case; and have gone the extra mile in this direction. the apparently settled rule in the miramnr, that verbal manipulation of incorporated clauses will not be permitted, and that specific reference to bill of lading holders under that designation would be required to impose an obligation on them, has been thrown open to doubt, to the extent of that case being cited in support of the contrary conclusion. the court was willing to entertain the possibility that the shipper may have to pursue an uncertain recourse action against the charterer based on a contract which none of the parties are likely to have contemplated at the start of the venture, the benefit of which may well not be transferred to the consignee. finally, a significant assumption was made as to the precise effect of the rule in pyrene. in that case, devlin j., had to decide whether the hague rules package limitation applied before the goods had crossed the ship's rail. the cargo owners 13. supra n.11. 14. the coral. supra. at p.7 col.2. 65 the denning law journal had relied on article ill rule 2, which states that' 'the carrier shall properly and carefully load, handle, stow, carry, keep, care for and discharge the goods carried", as defining the scope of the application of the rules; and they contended that their goods had been damaged outside that scope. devlin j., rejected this contention on the ground that article iii rule 2 defined, not the scope of the contract of carriage but the terms on which it was to be performed. it means that the carrier shall do whatever loading or stowage he does properly and carefully. the context of pyrene was thus far removed from the coral. also, there is some evidence in devlin j.'s judgment that he had in mind the division of performance of the operations ofloading and stowage between the owner and shipper, in accordance with the nature of the cargo and practice of the relevant port. 15 dividing performance between the carier and the shipper is one thing; placing responsibility for performance on a third party over whom the shipper has no control and without responsibility on the part of the carrier is quite another. if this point is raised again it is to be hoped that this distinction will be explored. 15. pyrene. supra. n.ll at p.328 co1.2-p.329 col.l: "the extent to which the carrier has to undertake the loading of the vessel may depend not only upon different systems of law but upon the custom and practice of the port of loading and the nature of the cargo. it is difficult to believe that the rules were intended to impose a universal rigidity in this respect or to deny freedom of contract to the carrier. . . . i see no reason why the rules should leave the parties free to determine by their own contract the part which each has to play." 66 serious fraud, long trials and criminal justice the han. mr. justice henry* the list of those who have given this lecture before me is daunting in its distinction. there you will find the great names of our law, judges, jurists, and philosophers. to hear them speak on any topic was to be enlightened and enriched, and so they were invited to talk on any topic of their choice. my invitation was not so couched. here the subject was chosen, rather than the speaker. i was asked because of my practical experience. i have, first as an advocate and then as a judge, had some experience oflong trials: to this fact alone lowe the honour of this invitation. so while in previous lectures in this series you have been addressed, to use a military metaphor, by the staff officers with their olympian vision, this is the view from the front line, from the immediacy of the trenches. this inevitably may result in some loss of detachment or perspective, but if the fight against over-long trials is to be won, it has to be won at trial. the appeal is too late. and it is fitting that child's bank should, through you, have extended this invitation to me, because my first experience of a trial lasting more than 100days was for their then parent. it was a civil case. it lasted, including vacations, 9 months. a director of the bank, who had been responsible for the conduct of the account in question, was examined in the witness box for 6 weeks. the time there spent added little to what was plain to be seen on the contemporary documents. the bank won (using that term in its narrow legal sense, and paying no regard to the pyrrhic element of that victory, the cost to be counted in the final balance sheet after having taken into account not only any shortfall between legal entitlement and actual recovery, but also the indirect costs of personnel being kept from their real duties during the trial). however the bank was good enough to invite me to a dinner to celebrate the victory. when called on to speak, i questioned the cause for celebration. the legal result reached was one that should have been reached in a fraction of the time. whoever was the winner, it did not seem to me to be the system, nor, would i have thought, the parties who had been through it. and that was a civil trial, where the problems of reducing length are not as acute as in criminal trials. * the child & co. lecture 1991,london, published by arrangement with the hon. mr. justice henry and child & co.. 75 the denning law journal those problems in criminal trials are intractable. they are universal wherever the criminal adversarial system is practised. and nowhere within that system have they been solved. this is because the problems are the product of the adversarial system itself. accordingly they will not be solved without alteration to that system. yet that system is regarded, and rightly so, as an important protection of the individual and his civil liberties. that system is all of a piece. so any alteration to that system will bring with it a potential civil liberties penalty, and must be critically examined on that basis. here i will try to give them the trial judge's perspective on the problems as they exist, and how they might be reduced. but there are no easy answers. if there were someone would have come up with them by now. no-one can doubt the importance of the subject. the competence of the criminal law to deal with serious fraud is clearly crucial to-day when the powerdriven, greed-fed dishonest excesses of the 80's have not proved to be the end of an unfortunate era, but an introduction to worse since. we have to be able to deal with serious fraud: to deter it, to detect it, and to punish it. we must do this to protect the creditors, employees and shareholders of limited liability companies. we must do this to protectthe public, whose pensions and insurances depend on it. we must do this to protect the integrity of the market. if the market is not seen to be honest and transparent, investors will go elsewhere. and if they do, so that money cannot be readily raised on the market, companies will have to raise money at greater expense elsewhere. so prices will go up. and if investors prefer the markets of our international competitors, so the country will suffer internationally as well as domestically. it is essential that the criminal law plays its part in this. the siren song of decriminalisation and the fallacies of the so called victimless crime must be rejected. there must be the same justice for white collar fraud as for blue collar fraud, the same for the rich as for the poor. and the sentences for dishonesty must be effective and equivalent in both cases. in both cases the powers to prosecute may and will be used selectively, but used they must be, and used against the prime movers. in the short space of this lecture i deal only with the criminal trial itself. i do not deal with deterrence, or substantive changes in the law, or the question of the end of self-regulation and the introduction of an equivalent body to the sec. our specification for our criminal justice system is that it must be effective in convicting the guilty and acquitting those not proved to be so. it must be as accurate as a system depending on human input at all levels can be. it must be fair but inevitable. it must be no respecter of persons, so it must be more powerful than the most powerful. and it must not be wasteful of money, because the public is paying for it, nor wasteful of time because time wasted in one case leads to delay in the hearing of another, and, budgets being finite, resources exhausted in one trial cannot be used in another. some serious fraud trials satisfy those criteria, others most certainly do not. of 76 serious fraud, long trials and criminal justice the latter, the following criticisms can be made. they take too long. they are open-ended as to time and cost. they are insufficiently focused on the real issues. they cost too much. they happen too late. such trials are not satisfactory for anyone, not the jury, not for the defence, not for the prosecution, and not for the cause of justice. and in the resulting situation, the public sees the process as being unable to cope, and suspects that it is being too easily manipulated or frustrated by the rich and powerful. this problem is not restricted to this country. in the common law world, wherever the adversarial system obtains, the problems are the same and no solution has yet been found: all suffer from mega-trials, and all agree as to how unsatisfactory such trials are. but no-one has yet found the answer. here, after the roskill reforms (which i shall deal with later) the hope was that after definition of the issues and a realistic appreciation of the facts in the preparatory hearing, there would be served up to the jury only what lord devlin described as "the big questions", the crucial questions of fact and (classically in these cases) the central and dominant question of honesty. butthat hope has yet to be fulfilled. the post-roskill experience in this country is that the length of the jury portion of criminal trials of serious fraud has taken between seven and 18 months, and in most of those cases the trial judge has used his powers of severance to reduce one mega-trial to two or more smaller trials. such trials followed lengthy preparatory hearings. this time bracket is also typical for comparable trials in other common law jurisdictions such as america and canada. but it is disappointing. i believe that current trial lengths are longer than are necessary or useful to enable the jury to give their best answer to those big questions. i believe that view to be common among judges with experience of comparable trials. i believe that in all but the quite exceptional case, the jury's best answer to these big questions will not turn on more fine detail than can properly be examined in, say, a four month jury trial. after such period, diminishing returns rapidly sets in, efficiency decreases, while time, and consequently expense and delay, increase. universal experience of trials very much longer than such a period is not only that they are longer than necessary for a fair and just determination of the proceedings, but that such trials are undesirable in themselves. first, long trials place enormous strain on all participants jury, defendants, the lawyers involved, the judge and by imposing such strains threaten the performance of those participants in the closing stages of the trial. second, for defendants, the costs of an over-long trial are yet more expense, yet more delay and more strain, particularly as any evidence the defendant gives will be towards the end of the trial. given the presumption of innocence, the trial should not be part of the punishment. third, over-long trials do not help the jury in their crucial fact finding role. appellate courts both here and in america have been reluctant to set jury verdicts aside as being unsafe and unsatisfactory simply due to the length of trial in 77 the denning law journal question. this is hardly surprising. where the jury have reached a verdict properly open to them on the evidence, it would be a strong thing to say that such a verdict was unsafe and unsatisfactory where the outward and visible signs were that the jury had risen above the difficulties. but courts in both countries, when deciding or reviewing a question of severance, have been freer with their criticisms oflong trials. thus his honour judge aspen in the district court of illinois when considering a 175 count indictment against 38 defendants in respect of over 150 factually separate criminal acts spanning a period of 20 years unsurprisingly decided that such a trial must be severed in to a number of less grandiose trials, and in so finding said this:l "both common sense and scientific study dictate that as the volume of evidence and corresponding length of trial increases, the degree and quality of jury comprehension decreases proportionately. to expect any jury to accurately call and appraise the vast amount of detail and testimonial and documentary evidence i heard many months or even a year earlier is unrealistically optimistic." to the same effect, but with one significant factual difference, in a case where the jury's civil verdict was set aside, in mechanical and general inventions co. and lehwess v. austin and the austin molor co. (otherwise known as the sunshine roof case),2viscount sankey, lc, said this: "i should be very loath to set aside any verdict of a jury arrived at after they had seen the witnesses and heard them. i cannot help thinking however, that in the present case, after a prolonged trial and thousands of questions in examination and cross-examination, it was impossible for the jury to have kept all the facts in their minds ... if the jury had the same advantages as we have had, in this long and complicated case, of having such a transcript of the evidence before them and the whole of the correspondence under their eyes, they could not have arrived at the conclusion that the licence agreement was made ... no jury properly directed could reasonably find that there was any such agreement and the verdict on this point must be set aside. in reaching this result i must not be thought to impugn the ability of the jury to come to a proper verdict, but rather to stress the difficulty of their task." the difference was that here viscount sankey was speaking of a trial that took just 14 and a half days. compare that with the recent nottingham case where the 1. u.s. v andrews 754 f. supp. 1161 [n.d. ill. 1990]. 2. [1935] a.c. 396. 78 serious fraud, long trials and criminal justice jury sat for 253 days. the jury needs help, and we must see that they get it. in these long trials it is essential that we offer juries the means of organising the mass of evidence they are confronted with. this means that they should be readily able to identify to what issue the evidence goes, to what issue the crossexamination is directed. without that information, they will not be properly equipped to evaluate that evidence as it is given. it is not satisfactory for them to have to wait for an explanation of the potential significance of that issue in the summing up given perhaps months after the evidence has been heard. criminal trials should not be conducted in such a fog. to allow them to be so is to place an unfair handicap on the jury, to consign them, in the phrase of mr justice berger of canada, to "a judicial never-never land". not, i think, j. m. barrie's place, but the trackless wastes of the outback. even to-day, i am told that assistant recorders at the judicial studies board (being taught the first elements of judging) are cautioned that (after the evidence and speeches but before summing up) it is prudent to check with the parties as to what the issues are. and this is in short trials. so what hope for the jury in long trials unless they go into those trials knowing just what the issues are, i.e. knowing what the defence will be? why have they not routinely had this information already? the answer lies in the historical development of the adversarial system. my criticism to date has not been of the working of the trial process in all serious fraud cases. but the satisfactory trial of such cases depends first on the consent of the defendant and his advisors to a fair but efficient trial, and second on a high degree of competence in both counsel appearing for him and appearing for"the prosecution. absent such consent and such competence, the system does not work as well as we are entitled to expect. we must have a system that does not depend on the defendant's consent and counsel's competence. how have the problems arisen? as with so many things in this country, the problem stems from our history, and our early (and considerable) success. the two basic models for the criminal trial are the inquisitorial and the adversarial. in the former, the principal actors are the judge and the accused. in the latter, the judge retires to a less prominent position in the trial process and the lawyers for the parties dictate (within the flexible and subjective boundaries of relevance) the evidence that is called and the thoroughness with which it is examined; that is, they determine the size of the canvas, and the detail with which it is worked. so they determine the length of the trial, the cost of the trial, and indeed the delay caused to other trials in which they have no interest. hence the fact that our system is open-ended, and our problems to-day. the shift to the adversarial system occurred with us in the course of the 18th century with the coming of the lawyers into criminal trials. that was a good thing. before the mid-19th century trials were nasty, brutish and short. but they were short. essential to the adversarial process was the oral tradition, the right to confront your accuser, to have your day in court. the perceived fairness of the system was 79 the denning law journal widely recognised. john mortimer was being more serious than his actual words might suggest when he listed the great british contributions to world civilisation as including the plays of shakespeare, the full breakfast, the herbaceous border, and the presumption of innocence. with the short trials of the day the system worked well. it still does, for short and simple trials though there are fewer of them. many modem trials are not short neither civil nor criminal. we live in a highly documented age. the photocopier and modem technology opens up endless potential for the reproduction, retrieval and electronic search for information in documents. in the current fashion in advocacy, detail reigns. civil practitioners started the fashion. criminal practitioners took it up. your day in court was no longer enough. now the claim often is to your year in court, or as long as you want, as long as you take. in some cases it is the prosecution that is to blame, in others the defence. in some cases trials are too long even though both parties regard themselves as keeping within both the letter and the spirit of the system. in others, the case is strung out, in an effort to play the system. in all cases it is effectively the parties who determine the length of a trial. this is unsatisfactory. the system must not only be strong enough to be sure of defeating those who wish to frustrate and subvert the trial process. it must also be capable of eliminating all unjustifiable delay and expense, whether by an overelaborate prosecution or a defence which believes that their right is not simply to justice but to have the final word as to the time their trial may take, time enough for all hares to be raised, wild geese to be chased, and red herrings to be trailed. this problem of the length of trials has grown considerably ever since the roskill committee was set up in 1984 with the following terms of reference: "to consider in what ways the conduct of criminal proceedings in england and wales arising from fraud can be improved and to consider what changes in existing law and procedure would be desirable to secure the just, expeditious and economical disposal of such proceedings". that committee reported in 1986. many of its recommendations are to be found in the criminal justice act 1987. i will call the report and the committee who produced it 'roskill', and, accepting some further inaccuracy in the cause of convenience, the 1987 act provisions as the 'roskill' reforms. for present purposes i can summarise the committee's achievements as follows. it gave us a sophisticated and powerful prosecuting agency in the serious fraud office. the abolition of committal proceedings was useful and has worked well in practice. it gave us the potentially vital procedure of the preparatory hearing; a procedure alas fatally flawed for lack of any real teeth, lacking as it does any effective sanction for non-cooperation. it improved the law of evidence. overall it provided a legal framework within which, where the parties were agreed on any sensible short-cut, by and large the law did not get in their way. it leaves a system that enables the parties to secure "the just, expeditious and economical 80 serious fraud, long trials and criminal justice disposal" of serious fraud trials in those rare cases when all parties are agreed on all the desirable steps to that end, and where all parties are prepared to go far enough in that direction. what it does not do is to give the court the powers it needs to ensure that the proceedings are justly, expeditiously, and economically disposed of when the parties do not so agree. the result is that to-day, post the roskill reforms, the objectives of his terms of reference have still not been met. i want to concentrate on two aspects in my examination of the roskill reforms: i) pre-trial disclosure of the defence; ii) the question of admission of facts. roskill correctly identified one of the main weaknesses of the system as being the absence of a general requirement of pre-trial disclosure of the defence. the right to withhold the defence until trial is one of the various aspects of the so called 'right to silence'. the absence of a general requirement of defence disclosure operates in roskill's words, to make trials "longer, less effic£ent, more obscure, and ultimately lessjust." that is undoubtedly true, in every particular. the objection in principle to defence disclosure is founded on the fact that the burden of proof lies on the prosecution. that objection had much greater force when prosecution disclosure of their case was less complete than it is now. in fraud cases a defendant used to have to wait for the opening before necessarily finding out exactly how the case against him was put. particulars of the indictment were often refused on this ground. full prosecution disclosure, made as a duty and not as a favour, is the necessary pre-condition to defence disclosure. and roskill achieves this. this is done by way of the preparatory hearing provisions of the criminal justice act 1987. the purpose of the preparatory hearing, as set out in section 7, is that of:(a) identifying issues which are likely to be material to the verdict of the jury. (b) assisting their comprehension of any such issues. (c) expediting the proceedings before the jury; or (d) assisting the judge's management of the trial. the trigger for any disclosure by the defendant is an order by the judge to the prosecution, under section 9(4)(a), to disclose:(i) the principal facts of the prosecution case. (ii) the witnesses who will speak to those facts. (iii) any exhibits relevant to those facts. (iv) any proposition of law on which the prosecution proposes to rely. (v) the consequences in relation to any of the counts in the indictment that appear to the prosecution flow from the matters stated in pursuance of sub-paragraphs (i) to (iv) above. so by the time those orders have been complied with, total disclosure of the 81 the denning law journal prosecution case will have been made to the defence, the witness statements and unused material presumably having already been disclosed. then the judge may make an order under section 9(5) to the defence:(i) to give the court and the prosecution a statement in writing setting out in general terms the nature of his defence and indicating the principal matters on which he takes issue with the prosecution. (ii) to give the court and the prosecution notice of any objections that he has to the case statement. (iii) to inform the court and the prosecution of any point of law (including a point as to the admissibility of evidence) which he wishes to take, and any authority on which he intends to rely for that purpose. by that vital sub-section parliament has required defendants to make extensive pre-trial disclosure of their defence where such an order is made. that order is a legal obligation binding on the defence. it is statutory recognition of the fact that surprise is the enemy of justice. but in practice, on the post-roskill experience, not every defendant has fully complied with such an order, and the reasons for this have been that the sanctions provided in the act are inadequate to compel disclosure. this is not the first time that parliament has ordered defendants to disclose certain aspects of their defence before trial. pre-trial disclosure of alibis was required by section 11 of the criminal justice act 1967. pre-trial disclosure of experts' reports is required by section 81 of the police and criminal evidence act 1984. in each ofthose casesthe ultimate sanction is thatthe court is empowered to refuse to allow the defence to call such evidence unless prior disclosure has been made. this ultimate deterrent is seldom used. one can imagine the difficulties if a defendant went into the witness box and said that he would like to tell the jury where he was at the time of the crime but the judge would not let him. but even if the ultimate sanction is seldom used, it seems to me that it is desirable where there. is an order for defence disclosure that such a sanction is present. and none is given by the act. the only express sanction is that set out in section 10(1) of the act. section 10(1) provides that any party can depart from the case he disclosed at the hearing. the sanction: comment. comment comes late: in the final speeches and the summing up. comment, which must be fair, can only be effective if the suggestion can credibly be made that the lateness of the disclosure suggest the defence to be false; that is, fabricated after the date for disclosure, a document forged, or a story made up. but often non-disclosure points to tactics and not veracity, an attempt to obtain the now illegitimate advantage of surprise. the truth often is that the defendant would prefer not to disclose his defence than disclose and give the prosecution the time to investigate and deal properly with his defence. so the judge's right to comment is not feared as a sanction, and in practice compliance with the court's order is treated as being voluntary by the defence. if 82 serious fraud, long trials and criminal justice it suits their tactical book, they disclose, if not, they do not. this is unsatisfactory. it is the law of the land that the defendant shall disclose his defence. in choosing to keep it up his sleeve he is breaking that law in disobeying the order of the court. such a breach is punishable as a contempt. but the court will naturally not want to go down that route, either before or after trial. so the court and the law are flouted. the second weakness in the order for disclosure of the defence is that section 10(3)provides that if there is no departure from the case statement, then neither it nor any information relating to the defence case given in the preparatory hearing may be disclosed to the jury without the defendant's consent. this provision also presumably stems from the burden of proof; the fact that the defence can sit back and see whether the prosecution can prove their case. but its effect is damaging in two ways; first, it prevents the jury knowing from the beginning of the trial what the issues are (unless all defendants consent) and second, because of this an immediate incentive towards proper defence compliance is lost, and so the court is told less than otherwise might be the case. as the law obliges the defendant to disclose his case, how can we achieve compliance with the law? the best answer lies in securing the defence's full cooperation with a fair, orderly and efficient jury trial. and that cooperation is best achieved if there is some advantage (or avoidance or mitigation of disadvantage) in compliance. i return to this later. the present position is unsatisfactory. we need statutory reform of section 10. i examine next the admission of facts under roskill. where the prosecution have served the defence with notice of documents the truth of the contents of which in their view ought to be admitted, the court may order the defendant to serve a notice to say whether he agrees and admits those facts, and if not the reason for any disagreement. the act unsurprisingly gives the court no power to order the defence to agree even the most obviously incontrovertible fact. this is a natural consequence of the burden of proof. but the defence has to tell the court its reason for not admitting those facts. the real reason often is that no disadvantage is seen in not admitting the indisputable, and the hope is that something will turn up. let us examine a classic example: the path money took after flowing through many bank accounts in many countries. i am told that in a recent fraud trial in hong kong, three months was spent calling such evidence without a single challenge to it being thrown up in cross-examination. the burden of proof, of course, entitles the defence to put the prosecution to proof of their case. but at what cost? and to what point? in such cases there should be power to tell the jury why that evidence had to be called. it would lead to realistic admissions. but section 10(3) prevents it. what incentives can be given to persuade the defence to make the admissions? if the burden of proof is to remain inviolate in all respects and in all circumstances, the answer is none whatsoever. the result will be that whenever any defendant sees possible advantage in spinning out the process he can do just that. why should 83 the denning law journal he want to do this? if an unscrupulous defendant believes that the criminal justice system can be defeated by unnecessary complications, delay, general obfuscation or perhaps even by provoking a jury mutiny, then he may resort to such tactics. they seldom work. but such tactics are used and they are very expensive. now, of course, if every defendant was entitled to his year in court, or as long as he liked, there would be no point in raising points of cost-effectiveness in relation either to non-admission of facts or the length of speculative cross-examination. the system would (up to the limit of abuse of process of the court) be open-ended, and would be proud of it. the argument would be that justice requires no less. in days of predominantly short trials, protected from the logical extremities of the system by the competence of counsel and the general consent of the accused to a proper trial under the process, the open-endedness of the system was not a problem or indeed a source of comment. with the mega-trial, and a greater public awareness of the political necessity of budgetary restraints, it seems that those days are over. budgets being finite, public money ineffectively spent on one defendant's prosecution or defence is likely to be made at the expense of necessary expenditure skimped in another case. how can limits be imposed? the objectives must be to have shorter, cheaper and more efficient trials without paying a penalty in fairness. and we do not have the answer at the moment, even after roskill. before i pass from the roskill reforms in the 1987 act let me say this. in the orders for pre-trial disclosure of the defence we have a powerful weapon towards shorter and better focused trials. but that weapon cannot be properly used until that information can be shared with the jury and shared with them from the beginning of the trial. and for so long as that information cannot be shared with the jury, and while there is no effective sanction against non-compliance, prosecution and judges will be discouraged from fully exploiting those preparatory hearing powers. my advice to trial judges is to ignore their ultimate lack of teeth and to insist on full compliance with the orders made, returning all inadequate documents to be done again, and insisting on proper and truthful reasons for the non-admission of the apparently unchallengeable. next, what are the judge's powers to reduce the length of serious fraud trials? basically, the judge has one very powerful weapon against long trials, and when that has been used, his powers over the length of the case are negligible. the first line of defence against such over-long trials is the remedy of severance: namely to split what, in the absence of trial management difficulties of the sort mentioned above, would ideally be one long trial into a number of shorter ones. such a split may be as between defendants, or as between incidents. where the right split cannot be agreed between the parties, the question comes before the trial judge to decide. it should not be thought that defendants always opt for severance, while the prosecution wants a mega-trial. that is not always so. it was not so in guinness 1 for example where the defendants all wanted a mega-trial. i ruled against them on the basis that such a trial would have been unmanageable 84 serious fraud, long trials and criminal justice and i am confident that that was the right decision. but the disadvantages of that course are also patent. it is useful to set out the down-side of severance. first, the second and any subsequent trial will usually have to wait not only for the conclusion of the first trial, but (on the experience of serious fraud cases) for the conclusion of any appeals relating to the first trial. so severance keeps matters hanging over later defendants for an unacceptably long time. second, severance can lead to the possibility of inconsistent results, perhaps reflecting different juries different views on the credibility of an essential witness common to both trials. it is clearly desirable for such a potentiality to be avoided. third, there may be the danger that justice is not done because the criminal picture is never seen as a whole, and a partial version of it may prove to be misleading. fourth, where the severance relates to counts in the indictment rather than to actual defendants, the public perception is that it is unattractive to have a second trial of the same person arising out of the same series of criminal acts and it is unattractive whether the first trial ended in his conviction or in his acquittal. fifth, severance may increase the strain on and inconvenience for witnesses who have to give essentially the same contentious evidence more than once. sixth, severance may give rise to fears that the publicity given to the proceedings and result of trial i may impact on trial 2. in the main, our courts, when having to choose between the devil of severance and the deep blue sea of an over-long trial have generally preferred the former, stating that only the criterion of absolute necessity justifies the latter. but severance cannot be a wholly satisfactory answer while it brings its own undesirable side effects as illustrated, and also, even after the 'right' severance, you may still have trials that turn out to be too long particularly when the defendant has not disclosed his defence in advance, and so that defence cannot be properly evaluated. therefore, severance should not be applied as a poultice to an unsatisfactory trial process. if the trial process is unsatisfactory, we should reform it, and only then use severance as a weapon of control. and apart from severance, the trial judge's other powers are not effective to shorten trials sufficiently. i deal with a number of suggestions. one remedy often suggested is to blame the current length of trials on an overloaded indictment. at its least sophisticated, this criticism focuses on the number of counts in the indictment. it is the factual content of the trial and the detail with which it is examined that lengthens matters, not ultimately the number of counts in the indictment. after the 'right' severance, it is unreal to suppose that all further problems can be solved simply by telling the prosecution to reduce the number of counts. everyone agrees on the desirability of the 'lean and mean' indictment. but even such an indictment will still leave you with cases that are still capable, under the present system, of being much too long. the overloaded indictment and the over-enthusiastic prosecutor have thrown up some problems, but they have been responsible for a minority of them. it is the factual content of 85 the denning law journal the trial and the detail with which it is examined that lengthens matters, not ultimately the shape of the indictment. sometimes it is suggested that absolute offences should be used by prosecutors. in serious fraud cases, an almost universal ingredient in any count is dishonesty. the allegation of dishonesty greatly widens the potential scope of the trial. it will often require the court to examine other transactions and the reports of them that mayor may not have contributed a belief that what was done was honest. and so the allegation of dishonesty widens and lengthens the scope of the trial. accordingly, one suggestion made to shorten trials is to use absolute offences. there are examples in the legislation, and more could be added. they are there, they can be used. but to be prosecuted in a serious fraud matter is so serious for the defendant that these prosecutions should essentially be reserved for cases of dishonesty. where the major players have been dishonest, that is what they should be charged with. next, the trial judge's power to decide (as a matter oflaw) what is relevant. this is a notoriously imprecise concept. ina. g. v. hitchcock3 in 1847 lord rolfe said this: "if we lived for 1000 years instead of about 60 or 70 and every case was of sufficient importance, it might be possible and perhaps proper to raise every possible inquiry as to the truth of statements made in fact mankind finds it impossible." or as justice holmes more pithily put it from across the atlantic: the line of relevance is drawn as "a concession to the shortness of life." where that line is drawn is a question decided on a mixture of logic and experience. with full disclosure of the defendants case, the trial judge would be able to draw the line more accurately. but where honesty is the issue, it is unrealistic to look to this power to solve the problems of long trials. and once the line of relevance has been drawn, the judge has but a limited discretion to exclude relevant and admissible prosecution evidence, but no discretion to exclude relevant and admissible defence evidence. so the judge's powers to cut down on the evidence called are severely limited. i examine next his power to shorten cross-examination. lord wright had this to say: "now cross-examination is one of the most important processes for the elucidation of the facts of a case, and all reasonable latitude should be allowed, but the judge always has a discretion as to how far it may go, or how long it may continue. a fair and reasonable exercise of his discretion will not generally be questioned by an appellate court."4 3. (1847) 1 exch. 91. 4. vassiliades v. vassiliades (1941) 18 cyprus l.r. 10, at p. 22. 86 serious fraud, long trials and criminal justice the guillotine limiting cross-examination was used in the extreme case of morley,s where the opening took six minutes, the evidence in chief of the prosecution witness took one hour and yet the trial (the defendant was in person) took 38 days, and only ended as soon as it did because his removal from court on the judge's direction prevented him from making a closing speech. but it is not altogether clear from the authorities whether that power is based on the court's discretion to prevent an abuse of process or whether some lesser test could justify intervention. in this, as in other respects, the basis and the extent of the judge's discretion to control the trial process have never been spelt out. lastly, in relation to the judge's powers, there is what rosemary pattenden in her useful work judicial discretion and criminal litigation refers to as the judge's "moral authority" to discourage or persuade advocates from unduly lengthening trials the barbara woodhouse school of court control, based on the power of the human eye and some judicious impatience. some advocates are more susceptible to that moral pressure than others. and judges should be able to apply rules rather than show impatience. the good judge is the patient judge. impatience should not have to be part of the efficient judge's weaponry. such then are the judge's present powers. they are not sufficient to enable him significantly to curb the tremendous amount of wasted time that occurs in long trials. huxley, under the influence of mescalin, when asked about time, said "there seems plenty of it." such is the happy state of counsel in a long trial. somehow it must be rationed. perhaps a start would be to give the judge specific powers to do so, coupled with an express duty to use those powers to secure as short a trial as is consistent with fairness. perhaps we could look to rule 403 of the american federal rules of evidence which states: "although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." this is reinforced by rule 102, requiring the trial judge, while securing fairness, "to eliminate unjustifiable expense and delay to the end that the truth may be ascertained and the proceedings justly determined." so presently the judge has no clear repository of powers which would enable him by order rather than persuasion significantly to shorten the trial process before him. the basis for justifying his discretionary powers of intervention are not entirely clear they may merely be his power to prevent an abuse of process by the court, and such a power can only be used in extreme circumstances. therefore, under our system as it exists at present, i believe that the parties and not the court will continue to retain control over the length a case takes, and so the system will remain open-ended, and unsatisfactory for that reason. without 5. [1988] 1 q.b. 601. 87 the denning law journal legislative changes, i do not believe that things will get better. in fact i am certain that they will get worse. there is a technical reason for this. the provisions of the criminal evidence act 1988,giving the judge powers to turn documentary hearsay into primary evidence, means that the defence will now have available wide powers of subpoena to obtain documents. previously such attempts were usually defeated by the restrictive decision of r. v. chelcenhamjustices, ex parte secretary of state for trade6 on the basis that the subpoena only operated on evidence, and the documents sought were not and could not be primary evidence. now that they are capable, by order of the court, of becoming primary evidence under the provisions of the criminal justice act 1988 many such documents wil become available to the defence, and so we can look forward to trials with more documents rather than fewer. i should make it clear that i welcome what i take to be the demise of the cheltenham justices decision. under it defendants were denied sight of documents in possession of third parties which might well have assisted them in their defence. but trials will get longer as a result. this pessimistic analysis brings me to the call to dispense with juries in these trials. many (but not all) of the problems of trial management i have highlighted would be reduced or avoided if trial were by judge alone or judge sitting with assessors. civil justice shows that we would still have very long trials, but they would be more easily manageable, and less vulnerable to the various vicissitudes that hit long trials. consequently the jury is under some threat, though i believe less than at one time. roskill recommended the replacement of the jury in certain categories of long and complex fraud cases. with trials now routinely going months and sometimes exceeding a year, the problem of jury concentration and comprehension increases. clearly there is force in those criticisms. but the great majority of judges who have tried long frauds have come through such trials confident in their jury, and in the verdicts they would give. the jury as a whole is, by some human chemistry, greater than the sum of its parts, and their conscientiousness and concentration impressive. i believe we should keep the jury for the following reasons. first, we must have equal justice for white collar fraud as for blue. fundamental to the concept of one and the same justice for all is trial by jury. it is sometimes suggested, often by city sophisticates, that the self-proclaimed complexity of their business dealings can only be understood by fellow initiates. you will remember 1066 and all that: "barons should be tried by other barons, who would understand." i reject that view. the jury inject a crucial democratic element of trial by the people into our penal system. these cases are about honesty, and the jury should be the judge of that, applying the same standards of honesty to commercial fraud as social security fraud. and jury verdicts are, in the vast majority of cases, 6. [1977] 1 w.l.r. 95. 88 serious fraud, long trials and criminal justice accepted even in this questioning and undeferential age. this is as important for the acceptability of acquittals as it is for the acceptability of convictions. the potential critic of any verdict will of course know little of the facts of the case, though they will not be inhibited by that. and after trial the roskill tribunal's verdict would be open to the saloon-bar cynic's allegation that an acquittal is simply the establishment looking after its own, or a conviction reinforcement of the defendant's claim that he was the establishment's pre-determined scape-goat. but a jury's verdict silences such suggestions. there seems to me to be an even more fundamental reason for not doing away with the jury at this stage in the development of the criminal adversarial system. 'and that is that as the system has moved from short trials to long trials, conducting both by the same procedures, so it has not adapted to give the jury the additional help and support they need in long trials. and until we have seen what they can do with proper help and support it must be wrong to call for their abandonment in difficult cases. a body of such constitutional importance that has served us so well simply cannot be jettisoned before it has been given its best chance of working in long trials. i do not run away from the fact that the presence of a jury lengthens trials considerably especially where a study of documents is involved. section 69 of the supreme court act 1981recognises this in civil matters. a judge (sitting with or without assessors) can read the documents out of court, and so they can be taken as read at the trial. the jury must be taken laboriously through them, absent prior discussion and agreement as to a summary of their content. documents are not the only reason why a trial by jury will always be longer. you must have shorter hours in the trial day, and more frequent breaks. you have counsel proceeding at what they (often wrongly) take to be the speed of the slowest ship. you cannot attempt to move them on as soon. you get points taken which are simply too bad to be taken before a judge. you get posturing and attempted obfuscation. the judge will be more reluctant to rule evidence irrelevant and may allow more time on matters of marginal relevance. in other words, you give more scope for defendants trying to play the system. but until all acceptable measures have been taken to shorten the jury trial, it is wrong to call for its abolition in certain categories of case. what i want to be able to do is to give the jury the help they need. to this end i want to know what the defence case is before the trial starts. i want to be able to tell the jury what the issues are before the trial starts making clear of course that any such list is subject to change and the unexpected. i would like to say a word at this stage about the traditional opening to the jury trial; namely when the jury are sworn in and immediately the prosecution rise to open their case. i regard this, from the court's point of view, as unsatisfactory. i believe, in common with at present a small but growing minority of judges here (and more in other jurisdictions), in addressing the jury before the prosecution does. i explain to the jury (my novice fellow judges) our respective roles in the 89 the denning law journal trial. i explain the shape of the trial, and how they can best approach their task. i tell them of the burden and standard of proof. more and more judges, in this and other common law jurisdictions, are doing this. but i would like to go further. if the judge rather than the prosecution were to open the issues to the jury, i believe that defence compliance with the disclosure orders will be much fuller than if they fear that the prosecution will use the opening to poison the well. at present there is little comfort in the opening of the trial for the defence. the prosecution open their case, often with head-line catching comment, and the defence has no opportunity to say what their answer is. in short and simple cases this does not matter; the issues are clear and self-evident. in long fraud cases it may matter. it seems to me that there is a case for the trial judge opening both the law and the issues to the jury. first (and i would imagine non-controversially), i would like to give them in writing the directions oflaw as to the ingredients of each offence charged, for them to have by them to consult at will. next i would like to open the issues to them. this would require summarising each defendant's case. where he, in his defence case statement, has advanced no positive case, then the jury of course will be told that. they will be told that this is his privilege. i would envisage giving them a list of issues, relating to each defendant and each count, and inviting them to refer to that list when wondering to what issue the crossexamination goes. i believe that such a course will have the following benefits:i) it will help the jury. it will help them to judge the importance of the evidence, and so the better to evaluate it and retain it in their memories. ii) it will help the judge control the case. where there are listed issues, the question "to what issue does this go" requires a direct answer, in a way that, where the issues have not been defined, "what is the relevance of this line" does not. iii) it will tend to either encourage or compel proper defence disclosure. encourage, because if your defence is going to be put before the jury in the identification of the issues you will want to ensure that the court does it justice. compel, because then where there is a departure, it will be clear to the jury, with the likely reason for it. where the departure is caused by an unexpected turn in the evidence, they will understand. where it is caused by flagrant concealment, they will form their own conclusions. i believe it would encourage full disclosure. i should also like to make available to them and the parties, daily or weekly, my running summaries of the evidence on each issue, with suitable warning as to reserving judgment until the evidence was complete. in short, i want to give them all the help that i can; first, to ensure that they are in a position to appreciate the relevance and significance of each bit of evidence or line of cross-examination as it is given, and secondly, so that they should have available for use if they wish it, a brief summary of the up-to-date state of the evidence on each issue as the trial proceeds, and not have to wait for the summing 90 serious fraud, long trials and criminal justice up before the first such assistance is given to them. so i would retain the jury but make sure the system gives them more help. in some jurisdictions, the defendant can elect to dispense with trial by jury. that right does not seem to be much used. if such a rule were introduced here, i would like to consider whether the choice should be subject to the leave of the court. i can imagine circumstances where i might feel that, notwithstanding the defence preferences, trial by jury was the only right mode of trial. if the trial judge is allowed to use knowledge obtained through defence disclosure at the preparatory hearing to compile a list of issues (to be updated as necessary) to put before the jury, and if as i believe he already may be, he may properly keep the jury abreast of the evidence in outline given on each issue by making available to them the embryo of what will eventually be his summing up, that will go some way to meeting one of the major criticisms of certain serious fraud trials, namely that they are insufficiently focused. i believe these proposals (and all that goes with them, i.e. fuller defence disclosure than we get to-day) will do something to reduce the length of these trials. however i am far from confident that it will do enough, certainly not enough to reduce trials to my suggested maximum length of four months for all save exceptional trials. if it is desired to ensure that the 'normal' serious fraud trial is concluded within such a period, i believe that can only be done with time limits. this idea of 'capped' justice, is of course, anathema to our system. jury trials subject to such time limits have been held in america, though not yet criminal trials. long anti-trust trials have been subject to this discipline. from the reports i have heard, lawyers for the parties greatly disliked the idea in prospect, but were pleasantly surprised at how well it worked. time was rationed, and measured by chess clocks. as time was thus demonstrably finite, the parties' deployment of their time pointed what they regarded as the essentials of their case to the benefit, i would have thought of all and especially the jury. i cannot yet imagine that happening in a criminal trial here, or at any rate not until such a system has been thoroughly tried elsewhere. in civil courts too the timeless-test nature of trials is causing some concern. in ashmore v. corporation of lzoyd's7 the trial judge wanted to decide some preliminary questions of law which might have determined or greatly shortened the action. the plaintiffs wished to have their evidence heard before the points of law were decided. the court of appeal agreed with the plaintiffs. on appeal to the house of lords, lord roskill said this:8 "the court of appeal appear to have taken the view that the plaintiffs were entitled of right to have their case tried to conclusion in such manner as they thought fit and if necessary after all the evidence on both sides had been 7. [1992] 1 w.l.r. 446. 8. at p. 448. 91 the denning law journal adduced. with great respect, like my noble and learned friend, i emphatically disagree. in the commercial court and indeed in any trial court it is the trial judge who has control of the proceedings. it is part of his duty to identify the crucial issues and see they are tried as expeditiously and as inexpensively as possible. it is the duty of the advisers of the parties to assist the trial judge in carrying out his duty. litigants are not entitled to the uncontrolled use of a trial judge's time. other litigants await their turn. litigants are only entitled to so much of the trial judge's time as is necessary for the proper determination of the relevant issues." lord templeman said this:9 "mr lyndon-stanford repeated the arguments in the court of appeal and, as ralph gibson lj remarked: 'he claimed in particular that it was wrong to take the conduct of the proceedings out of the hands of the plaintiffs and thereby to disappoint the plaintiffs in their legitimate expectation that the trial would proceed to a conclusion upon the evidence to be adduced.' ralph gibson lj thought that there was 'considerable force in these submissions'. my lords, i disagree; the control of the proceedings rests with the judge and not the plaintiffs. an expectation that the trial would proceed to a conclusion upon the evidence to be adduced is not a legitimate expectation. the only legitimate expectation of any plaintiff is to receive justice." might not that be the beginning of the end of open-ended litigation? if, as i believe, there is a general consensus that present criminal fraud trials are longer (and consequently costlier) than the combined imperatives of the fair trial and the just result require, time limits will have to be examined at some point. so, using a lecturer's licence to be provocative, might i ask you to contemplate the unthinkable? might not there be a statutory limit on the length of jury trials, only to be exceeded with leave of the court? might not the court be given specific statutory powers to ensure that jury trials are tried as expeditiously as fairness permits, and be enjoined to use those powers to ensure that the trial limit is kept to? might not parliament give the court power to deny jury trial to a defendant if satisfied that the case cannot be brought within the statutory time limits only because of unreasonable refusal by the defendant to admit facts which plainly should be admitted. well, like you all, i rather doubt it. but equally do you imagine that our criminal justice system will continue to be open-ended as to time and consequently as to expense for ever? and if you can't imagine our system remaining as it is, won't something like that have to happen? 9. at p. 454. 92 bonham.s case: the ghost in the constitutional machine *r. a. edwards doctor bonham, doctor of physic and graduate of cambridge university, was discovered early in the seventeenth century practising in london without the necessary licence from the college of physicians. the college, empowered by statute, sought, after a summer of legal manoeuvring, to fine and imprison the doctor. however, in an action to determine the legality ofthe college's decision sir edward coke c.j. held the statute void as it made the college judge in its own cause. during the course of his seminal judgement, sir edward noted in a now famous passage that: "it appears from our books 1 that, in many cases, the common law will control acts of parliament and sometimes adjudge them to be utterly void: for when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such acts to be void.,,2 'b.a.(hons), ll.b.(hons), b.c.l.(oxon). formerly lecturer in law, university of southampton 1994-5. i would like to thank professor gabriele ganz and professor laurence lustgarten (both at the university of southampton), mr.nick barber (exeter college, oxford) and ms.sinead mcmullan (trinity college, dublin) for their helpful comments. however, the views contained in this paper remain the sole responsibility of the author. e-mail: edwards@lawlinks.org 1 see t.f.t.plunkett, "bonham's case and judicial review" 40 harv.l.r. 30 where the author casts doubts on the strength of the precedents on which coke based his reasoning. cf the conflicting opinion in mcilwain, high court of parliament and its supremacy (o.u.p., 1910). 2 dr bonham's case [1609] s co. rep.113b at lisa, per coke c.j. justices warburton and daniel concurred. hereafter cited simply as bonham's case. 63 the denning law journal i.the rise and fall of bonham's case bonham's case was one of the landmarks of early-modem english law, and has provided an intellectual banquet for lawyers ever since. bonham's case for certain scholars was merely a restatement of the principles of statutory interpretation, albeit in a strong form. although statute law was still in its infancy, coke's argument concluded thome, "is derived from the ordinary common law rules of statutory interpretation." 3 however, the real significance of the case others have advocated, was the belief in the supremacy of a higher rule oflaw, binding on both parliament and the courts. although in bonham's case coke did not define what he meant by "common right and reason" or "repugnant," a year later in calvin's case he went on to expand his canvass.4 this higher law, was it seems a superior and immutable law of nature derived from god.s on this view, it was not beyond the provenance of the courts to control acts of parliament. similarly, acts that were "repugnant," argues plunkett, were those which were either distasteful to the court, self-contradictory or contrary to the common law. 6 in any case, coke was not merely asserting the rules of statutory interpretation. 7 in fact the subsequent case law lends a certain amount of support to this view. during rowles v. mason, coke once again asserted that the common law "corrects, allows and disallows both statute and custom, for if there be repugnancy in statute or unreasonableness in custom, the common law disallows or rejects it as in bonham's case." 8 that coke believed statutes could be declared unlawful was further re-enforced by his account of the judges reply to 3 see further, thome, "dr bonham's case" [1938] 54 l.q.r. 543 . 47 co.l. 4b [1610] at 12a-12b. s indeed during his judgement inbonham's case (supra.n.2 at 12b), coke states that "this law of nature is part of the laws of england." 6 t.f.t.plunkett, supra.n.1 at 34. 7 corwin, "the higher law background of american constitutional law" [1928] harv.l.rev. 149;365 at 370-372. 8 [1612] 2 brown l.192 at 198. 64 bonham's case the king on the question of royal proclamations. 9 among a list of unlawful proclamations coke noted that: "an act of parliament was made that all irish people should depart the realm ... upon pain of death; which was absolutely in terrorem and was utterly against the law."lo even lord ellesmere, who was not enamoured of the common law courts and had described the decision as "possessthing [sic] a better room in the press than is deserved," nonetheless did not deny the existence of the doctrine. ii in both day v. savadgel2 and sheffieldv. ratcliffe 13 sir edward's successor, sir henry hobart, gave effect to the doctrine that bonham's case contained, although without referring to the views of coke who by this time had fallen from royal favour. 14 although cases after the glorious revolution are rare, it is wrong to describe the doctrine at this stage, as lord reid did, as "obsolete." 15 "in earlier times," lord reid concluded, "many learned lawyers seem to have believed that an act of parliament could be disregarded in so far as it was contrary to the law of god or the law of nature or natural justice, but since the supremacy of parliament was finally demonstrated by the revolution of 1688 16 any such 9 r.a.mackay, "coke parliamentary sovereignty or the supremacy of law" [1923-24] 22 mich.l.rev. 215 at 225. 1012 co. rep. 76. 11 earl of oxford's case [1615] 1 chan. rep. 1 at 12. 12 [1615] hobart 86. 13 [1615] hobart 334 at 336. 14g.walker, "dicey's dubious dogma of parliamentary sovereignty: a recent fray with freedom of religion. " [1985] 59 a.l.j 276 at 279-280. is british railways boardv. pic/cin [1974] ac. 765. this case, like edinburgh railway infra.n.24 concerned the fraudulent use of parliamentary power. 16the bill of rights 1688 does not assert the supremacy of parliament. the supremacy and scope oflegislative power are the products of the decisions of the courts. 65 the denning law journal ideas have become obsolete." 17 soon after the glorious revolution, bonham's case was cited by chief justice holt in city of london v. wood, 18 a case which "is sometimes quoted out of context to support the omnipotence theory." 19 lord holt is reported as ruling that: "what my lord coke says in doctor bonham's case is far from any extravagency, for it is a very reasonable and true saying, that if an act of parliament should ordain the same person to be party and judge, it would be a void act of parliament." 20 during campbell v. hall, lord mansfield stated that the king in parliament "cannot make any new law contrary to fundamental principles." 21 later in green v. mortimer22 lord campbell, who had described bonham's case as "a foolish doctrine which ought to have been laughed at," 23 indirectly approved it by invalidating a private act of parliament. this is all the more striking as, in the earlier edinburgh and dalkeith railway co. v. wauchope. lord campbell had held that in the courts legislative enactment was condusive.24 today, based on a narrow reading of his institutes, coke is more often seen as an early advocate of the supremacy of parliament: 25 \7 supra.n.15 at 782. 18 [1755] 12 mod. 669. 19 g.walker, supra.n.14 at 280. 20 supra.n.18 at 687-688. 21 [1774] 1 cowp.204 at 209. 22 [1861]3 l.t. 642. 23 h.w.r.wade, constitutional fundamentals (stevens & sons, 1980) at 31. 24 [1842] 8 cl. & f. 710 at 724. 2s for example, de smith & brazier, constitutional and administrative law, (7th.ed., penguin, 1994) at 76 at n.34. 66 bonham's case "of the power and jurisdiction of parliament for the making of laws in proceeding by bill, it is so transcendent and absolute as it cannot be confined either for causes or person within any bounds"26 however, parliament was at coke's time, and indeed up until the civil war, more a court than a legislature. 27the king was the fountain of justice and parliament was his court. a close reading of the institutes reveals that coke's theories are bereft of the modem distinction between legislating and adjudication. 28indeed, mcilwain believes that the use of the words 'jurisdiction", "causes", and "person" point conclusively to parliament's existence as a court. 29whatever his scholastic inconsistencies, nothing can be read into them that approaches the modern doctrine of sovereignty. parliament may have been emerging as the supreme body relative to the other organs of government, but it was not the supremacy of legislative omnicompetence. 30 indeed, blackstone in his magnum opus, the commentaries reached exactly this conclusion. 31nonetheless, the error of blackstone in accepting what coke had written in his institutes at face value, in contradiction to his own views on the separation of powers and civil liberties, and thereby claiming that parliament enjoyed "uncontrollable authority"32 was to have wider ramifications, for these views were later moulded by dicey into the dogma of parliamentary sovereignty. thus today's theories concerning parliament are based on a misunderstanding of constitutional history. 26 4 co. inst. 36. 27 as is widely recognised, the origins of the unlimited power that parliament enjoys grew out of this period as the supreme court. see further gough, fundamental law in english history, (oup., 1955) ch.3 esp.at 42. 28 corwin, supra.n.7 at 379. 29 mcilwain, supra.n.l at 139-48. 30 g.marshall, parliamentary sovereignty and the commonwealth (clarendon, 1957), ch.5. 31 commentaries vou at 91 & 162. 32 ibid. at 91. 67 the denning law journal ii.the rise of the diceyan paradigm after its misapplication in godden v. hales, 33 where the real issue was the dispensing power of the king and not coke's doctrine, 34 bonham's case came to be regarded at best as a legal relic, and at worst, especially by the parliamentary side of politics, as a suspicious and potentially dangerous precedent. 35 after the glorious revolution, as has been seen, despite attempts to keep it alive the concept of common law judicial review of parliamentary legislation fell into general disuse. by the nineteenth century, with the scholarly re-enforcement of dicey's pen, statutes had become inviolable. according to dicey, english law denied the "existence of any judicial or other authority the right to nullify an act of parliament or to treat it as void or unconstitutional." 36 the courts could no longer interfere with the monopolistic legislative power that westminster had been granted by the courts. 37 judicial interference could only be justified in the sphere of policing the limits of legislative intent. 38 these sentiments were succinctly expressed in the judgement of mr justice willes during lee v. bude & torrington railway co.: "it was once said i think in hobart that, if an act of parliament were to create a man judge in his own cause the court might 33 (1686) 89 e.r. 1050. 34 for a stimulating account of this, see d.a. smallbone, "recent suggestions of an implied bill of rights" [1993] 21 fed.l.rev.254 at 262-267. 35 yet, strangely, it has not been over-ruled. (although it has languished in the legal doldrums for many years fortune smiled once more on bonham's case when it was endorsed by no less a figure than lord denning: "misuse of power" [1981] 55all 720 at 723.) 36 a.y.dicey, an introduction to the study of the law of the constitution, (10th.ed., macmillan education, 1964) at 91. 37 aw.bradley, "the sovereignty of parliament in perpetuity?" in the changing constitution (eds. jowell & oliver) (oxford university press,1994) at 85. it is to the decisions of the courts that "we must look to discover propositions about the legislative powers of parliament." see infra. 38 p,p.craig, public lawanddemocracy in the ukand the usa (clarendon, 1990) at 2425. 68 bonham's case disregard it. that dictum, however, stands as a warning, rather than an authority to be followed. we sit here as servants of the queen and the legislature ... if an act of parliament has been obtained improperly, it is for the legislature to correct it by repealing it; but so long as it exists as law then the courts are bound to obey it." 39 this philosophy has been oft repeated. in british railways boardv. pickin, for example, not only was lord reid of the opinion that "for more than a century both parliament and the courts have been careful not to act so as to cause a conflict between them," 40 he resolutely believed that "the idea that a court is entitled to disregard a provision in an act of parliament on any ground must seem strange and startling to anyone with any knowledge of the history and law of our constitution." his lordship concluded, that there "has been no attempt to question the supremacy of parliament." 41 there was no role for the courts to limit the actions of parliament by way of judicial review. iii. parliament and civil liberties: exhuming bonham's case in areas now governed by european law, parliament is now subject once more to a higher form of law in the shape of the community treaties. whilst the received nostrums of dicey have, in part, been overtaken by the accession of the uk to the european union, 42 in areas not concerned with community law the courts cannot declare an act ultra vires. 43 where community law is not 39(1871) l.r.6 c.p 576 at 582 this case was concerned with the fraudulent use of legislative power, and not its scope. mr justice willes was clearly worried about an unseemly clash between the courts and parliament. 40 supra.n.15 at618. 41ibidat 614. the revolution of 1688 did not assert the supremacy of parliament. contrary to popular belief the bill of rights 1688 fails to mention it. it is to the decisions of the courts that we must turn in order to discover the legislative limits of parliament. see bradley supra.n.37. 42forexample stoke-on-trent city council v. b&q pic [1991] ch. 48per hoffman 1. 43for example, see the remarks of lord diplock and lord morris in hoffman la roche & co.ag v. secretary of state for trade and industry [1975] a.c. 295 at 365 & 349 respectively. 69 the denning law journal involved, english courts refuse to apply any extrinsic control to acts of parliament, even if those appearing before them claim that their fundamental rights and freedoms have been infringed by statute. 44while the rule of law mediates the sovereignty of parliament by ensuring that legislation is interpreted in a way that respects the principles and values of the common law, 45the courts must yield to legislative intent in the face of clear and unambiguous wording. judges allegedly avoid public policy issues, simply "administering the law, good or bad as they find it." 46if parliament enacts oppressive legislation, for example denying the franchise on the grounds of race, 47then following the dictates of positivism the courts must apply it, no matter how contrary to the tone and spirit of our constitutional traditions. "the policy or impolicy of such an enactment," concluded the privy council in cunningham v. tomey homma, "as that which excludes a particular race from the franchise is not a topic which their lordships are entitled to consider." 48the legislation in question may be dubbed "unconstitutional," but this does not attract any legal consequences as it might in canada. the rights and freedoms of the individual, as lord scarman notes, are helpless "in the face of the legislative sovereignty of parliament." 49the absence of judicial power to strike down oppressive statutes has become the "achilles heel of a society which aspires to constitutionally protected freedom.,,50 there are two solutions to this problem. first, we could adopt an entrenched bill of rights, or second we could exhume the doctrine in bonham's case. 51the 44for exampler.v. secretary ojstatejor home affairs, expo bhajan singh [1975] 2 all e.r. 1081. 45 for a recent restatement of this doctrine see lord browne-wilkinson, "the infiltration of a bill of rights" [1992] p.l. 397 at 404-8. 46lord denning, "the spirit of the british constitution" (1951) 29 c.b.r. 1180 at 1193. 47 this possibility is far more probable than the specious example peddled by dicey, quoting leslie stephen, that all blue eyed babies should be murdered on legislative licence. see further a.v.dicey, supra.n.36 at 81. 48[1903] a.c.151 at 156. 49sir leslie scarman, english law: the new dimension (stevens & sons, 1974) at 15. 50 sir gerard brennan, "courts, democracy, and the law" (1991) 65 a.l.j 32 at 38. 51 ibid. 70 bonham's case first possibility need not detain us here. however, what if the courts were faced with a statute utterly "repugnant" to our constitutional traditions. would it be possible for the courts to return to the doctrine of bonham's case, albeit equipped with modem "right and reason" focused on the rights and freedoms of the individual, and declare it void? or to put it another way, can the courts place common law limits on legislative power? iv. dissent with dicey an formalism the questioning of parliamentary sovereignty is far from an historical phenomenon. in many senses the new zealand constitution is a mirror image of its british parent. the auckland parliament, like westminster, is sovereign in the diceyan sense. 52 however, in no less than five court of appeal cases, the supremacy of the new zealand parliament has been questioned by sir robin cooke, the former president of the court. 53 although lord cooke's judgements do not provide any reasoning or analysis in relation to the conclusion, they are nonetheless of great significance. 54 during his dissent in lv. m, a case that concerned the exclusive jurisdiction of the accident compensation commission, mr justice cooke noted: "it would be a strong and strange step for parliament to attempt to confer on anybody other than the courts power to determine conclusively whether or not actions in the courts are barred .. there is even room for doubt whether it is self-evident that parliament could constitutionally do so.,,55 later, in brader v. ministry of transport where the validity of the careless day regulations made under the economic stabilisation act 1948 was questioned, his honour noted obiter: 52see further constitution act 1986 (nz), s.15(1). 53por an excellent commentary see j.l.caldwell, "judicial sovereignty a new view" [1984] n.2.l.r. 357. lord cooke of thorndon , as sir robin became, was appointed to the appellate committee of the house of lords in 1996. 54l.zines, constitutional change in the commonwealth (1988) at.48. 55 [1979] 2 n.z.l.r. 519 at 527. 71 the denning law journal "it may be added that the recognition by the common law of the supremacy of parliament can hardly be regarded as given on the footing that parliament would abdicate its function ... it is not to be supposed that by the 1948 act the new zealand parliament meant to abandon the entire field ofthe economy to the executive.,,56 then again in the new zealand drivers' case where the arbitration court had been prohibited from determining the validity of a wage freeze mr justice cooke noted in a majority judgement that the entire court had "reservations as to the extent to which in new zealand even an act of parliament can take away the rights of citizens to resort to the ordinary courts of law for the determination of their rights.,,57 however, in fraser v. state services commission, his honour appeared to go further noting that "it is arguable that some common law rights may go so deep that parliament cannot be accepted by the courts to have destroyed them." 58indeed, later in taylorv. new zealand poultry board where the ability of the poultry board act 1980 to remove the common law right to silence was questioned, sir robin re-enforced his previous dicta: "i do not think that literal compulsion, by torture for instance, would be within the lawful powers of parliament .. some common law rights presumably lie so deep that even parliament could not override them.,,59 all these judgements point clearly to a revival of the doctrine first espoused by lord cooke's famous namesake sir edward coke. 60moreover, they are "are absolutely opposed to dicey.'>61 56 [1981] 1 n.z.l.r. 73 at 78. 57new zealand drivers' association v. new zealand road carriers [1982] 1 n.z.l.r. 374 at 390. 58 [1984] 1 n.z.l.r. 116 at 121 (emphasis added). 59 [1984] 1 n.z.l.r. 394 at 398(emphasis added) 6arhe high court of australia has made a similar observation on one occasion cf union steamship co. of australia pty.ltd. v. king [1988] 166 c.l.r. 1 at 9-10. in addition see, builders' labourers federation v. minister of industrial relations [1986] 7 n.s.w.l.r. 372. 61 supra.n.54 at 48. 72 bonham's case v. fundamental principles: what are they? claiming that an act of parliament is contrary to deeply embedded fundamental common law rights and principles is obviously beset by the difficulty of not only deciding which rights and freedoms are fundamental, but also from whence they originate. "fundamental rights," as joseph notes, "purveyed within the matrix of law may, in truth, be no more than moral statements about how government and society ought to function, if so, whose 'morality' are we talking about? the presiding judge's or society at large?" 62 clearly there is a danger that the judicial advocacy of common law rights could lead to subjectivism and uncertainty. with no bill of rights there is the danger that laws could be struck down on the vague basis of failing to comply with nebulous moral standards. how are we to define these conceptual and technical limits on parliamentary power? vi. rights derived from democracy in part this problem may be solved by focusing on what rights and freedoms are essential for a democratic society. this basis of society manifests itself in, for instance, the representation of the people act 1983. 63 implicit in such legislation must be the recognition that a bundle of rights exist in order to ensure that the democratic process is more than just an empty shell. clearly the franchise is of little use unless a society enjoys, as a bare minimum, a free press, freedom of speech, freedom of movement, freedom of thought and freedom of assembly and association. these rights form, in part, the normative framework of democracy. moreover, such rights are implicit in the representation of the people act which clearly assumes that the people are free to criticise, discuss and debate the merits of political policies and parties.64 although the constitution is unwritten, there can be no doubt that the united kingdom is essentially a parliamentary democracy. the representation of the people acts, for instance, are a clear manifestation of a free society that governs its affairs in accordance with the principles of representative democracy. society tolerates parliamentary law-making because it is the elected legislative forum of 62p.a.joseph, "beyond parliamentary sovereignty" [1990] anglo-am.l.rev. 91 at 104105. 63 1983, c.2. 64 for a similar observation in the canadian context see switzman v. elbling [1957] 7 d.l.r (2d) 337 per abbot 1. 73 the denning law journal the nation. it is in this wider context that parliament must be seen. moreover, the theory of parliamentary sovereignty developed by dicey is justified by democratic theory. 65 if the political sovereign, the people, are to control the legal sovereign, the queen in parliament, then the operation of the political process must support a democratic choice. 66 indeed, there seems to be no reason in the age of mass democracy for the courts not to raise explicitly the people to a position of constitutional supremacy over parliament, thereby recognising the sovereignty of the people as the ultimate constitutional foundation. 67 whatever the form of the british constitution, in the late twentieth century sovereign power belongs to and resides in the people. it is exercised on their half by the government of the day who derive their moral and political authority from the ballot box. this, surely, is the self-evident basis of representative government. clearly then a mere parliamentary majority is not therefore free to abandon democratic institutions or the rights and freedoms that support them. in order to prevent this there must be some form of external control that can prevent a government from resiling from these institutions and the normative values of democracy. judicial review of legislation is of course frequently criticised on the grounds that it is undemocratic. 68 although this is not the place to repeat these arguments they are, however, in one sense of crucial importance. the crude logic of majoritarians dictates that any interference with any statute is illegitimate, irrespective of the content of that statute. parliament, as the democratic element of the constitution, must be supreme. yet without question this theory is flawed. unchecked democracy, as lord hailsham famously observed, can be as unjust and tyrannical as any dictator. more fundamentally in the context of the british constitution this criticism is more than a little ironic. ministers can serve the crown without ever being elected. and of course two-thirds of the legislative process has no democratic pedigree whatsoever: viz. the queen and the house of 65 a.y.dicey, supra.n.36 at 70 (where dicey notes that the electors "are the true sovereign of the country") & at 429-30. 66 l.zines, "a judicially created bill of rights" [1994] 16 sydney l.rev. 166 at 177. zines persuasively argues that in order to avoid opening pandora's box the judges should "cleave close" to the rights and freedoms associated with the concept of a representative democracy. 67 supra.n.34 at 258. 68 for example, the classic, la.g griffith, the politics of the judiciary (4th.ed.,fontana, 1991) . see also ewing & gearty, freedom under thatcher (clarendon, 1990) at 270-]. 74 bonham's case lords. equally, governments formed under our electoral arrangements are usually endorsed by less than half the electorate, and are therefore not true expressions of majoritarian will. thus instrumentalist democratic rights, for example equal access and participation in the democratic process, must be protected otherwise political equality, the bedrock of major itarianism, will be undermined. likewise, free speech must be protected for it provides the very breath of life for our parliamentary democracy. 69 any enactment that threatened to undermine the essentials of democratic government clearly lies beyond the lawful limits of parliament. 70 therefore, the courts through judicial review would be ensuring that the political will of the nation would continue to be accurately expressed in a democratic manner. in this sense a limited doctrine of judicial review can be conducive to democracy, and thus confined, is no more anti-democratic than judicial review of administration.?' vii. common law rights beyond the values that might be considered essential for democracy, there are a number of fundamental common law principles deeply rooted in the common law tradition. although these principles are increasingly identified with the catalogue of rights in the european convention on human rights, 72 they are nonetheless "the basis of our fundamental freedoms" 73 and have "sunk deep into the mind of the nation and have been more powerful than anything else in creating the spirit of the british constitution." 74 these principles represent a 69 as the decisions in re alberta legislation [1938] 2 d.l.r 81 at 107 and australian capital televsion pty. ltd v. the commonwealth [1992] 177 c.l.r 10 recognise. 70t.r. s allen, "the limits of parliamentary sovereignty" [1985] p.l. 614 at 620-22. 71 d.feldman, "democracy, the rule of law, and judicial review" [1990] 19 fed.l.rev. i at 23. 72for example, a-g v. guardian newspapers (no2) [1990] i a.c.i09 at 283 per lord goff; derbyshire county council v. times newspapers [1992] 3 all e.r. 65 at 77-78 per balcombe l.j.; and r v. cambridge health authority, ex p. b (the times, 15th. march, 1995). for an extra-judicial view see: the hon. sir john laws, "is the high court the guardian of fundamental constitutional rights ?" [1993] p.l.59. . 73lord denning, supra. n.46 at 1183. 74 ibid. at 1181. 75 the denning law journal number of enduring values. they include, for example, "the dignity and integrity of every person, substantive equality before the law, the absence of unjustified discrimination, the peaceful possession of private property, the benefit of natural justice and immunity from retrospective and unreasonable operation oflaw.,,75 furthermore, despite the semi-entrenched provision in the canadian charter guaranteeing freedom of expression 76the canadian supreme court has observed that freedom of expression is not: "a creature of the charter ... it is one of the fundamental concepts that has formed the basis of the historical development of the political, social and educational institutions of west em society [and] representative democracy." 77 even before the advent of the charter, free speech had been recognised as an essential feature of canadian democracy, and as such had been granted a constitutional status by the courts. 78equally, in the context of the right to be secure from arbitrary search and seizure, the alberta court of appeal noted during southam v. hunter that "the roots of the right .... are embedded in the common law ... [and] the expression in a constitutional document simply reminds us of those roots and the tradition associated with the right." 79such principles cannot be dismissed as ephemeral or nebulous. would it be possible, however, to go further and claim that such principles form a fundamental law and as such they are not ordinary positive law? this would not be at all revolutionary. what is revolutionary is talk of the omnicompetence of parliament, free to destroy and erode rights and freedoms such as the right to silence. such views, as allott notes: 75 supra.n.so at 40. 76s.2 (b) canadian charter ofrights & freedoms (1982) s.2 is subject to the legislative override provisions contained in s.33 and is therefore not fully entrenched. 77 retail, wholesale & department store union v. dolphin delivery ltd. [1986] 33 d.l.r (4th.) 174 at 183 per mcintyre 1. 78 ibidat 184per mcintyre 1. for cases giving free speech a constitutional status, see e.g. re alberta legislation supra.n.69 at 107-109 and at 119-120. see also infra. 79[1983] 147 d.l.r (3d) 420 at 426 per prowse 1.a. section 8 of the charter provides "everyone has the right to be secure against unreasonable search or seizure." 76 bonham's case "fly in the face of one thousand years of talk about 'fundamental law' by kings, judges, political men, and commentators ... if there is one thread which runs through the whole turbulent story of british constitutional development it is the belief that we are the servants of fundamental constitutional rules which were there before us and will be there after we have gone."80 viii. the protection of unenumera ted rights and freedoms there are, of course, those who believe that in the absence of a bill of rights the courts are unable to protect adequately rights and freedoms. 81 however, it is disingenuous to claim that as rights are unenumerated that they cannot be protected. in ireland, for example, the supreme court has ruled that unspecified rights lurk in the constitution, 82 and at a deeper level in the laws of nature. furthermore, these rights could be identified by the courts and protected.83 similarly, in the united states the courts have from the very beginning proclaimed and enforced unwritten constitutional principles. 84 thus clearly, as grey notes, many of the court's decisions on constitutional law are noninterpretive. 85 perhaps this is not surprising, for at the time the constitution was framed it was recognised that it did not completely codify all the higher law.86 equally, the australian high court has "distilled from the provisions and 80 p.allot, "the courts and parliament: who, whom ?" [1979] 38 cl.l. 79 at 114. 81 eric barendt, for example, notes "the courts in the absence of a constitutional text are unable to give adequate weight to the freedom when it conflicts with other public values and interests," in freedom of speech (clarendon,1985) at 299. see also builders' labourers federation v. minister of industrial relations supra.n.60 at 406b-c per kirby p. 82 for example bunreacht na heireann (1937) art.43.1.i (private property). 83 see ryan v. a-g(ireland) [1965] i.r. 264, & g v. an bord uchtala [1980] i.r. 32. 84 t.grey, "do we have an unwritten constitution ?" [1975] 27 stan.l.rev.703 at 717. 8s for example, roe v. wade 410 u. s.113 at 152-3 (1973). 86 supra.n.84 at 716. 77 the denning law journal structure of the constitution" 87 an implied freedom 88of communication "at least in relation to public affairs and political discussion," 89whilst attractive, the difficulties of such an approach should not be underestimated. the result could be the simple exchange of one leviathan in parliament for another in the courts. under a constitution that provides no limits to the legislative supremacy of parliament it is both dangerous and unwarranted for the courts to expand the scope of judicial review beyond constitution principles that have a widely recognised legal and political heritage in society. with this in mind is it therefore too bold to suggest that certain of the common law rights and freedoms, such as free speech, are so essential to a representative democracy that a mere parliamentary majority lacks the legitimacy to uproot them? if it is desired to protect these rights then should the doctrine in bonham's case not be exhumed, employing the constitutional principles outlined above as the modem "right and reason"? whilst this "would not be an easy move in a democracy, it might be done, and the scope of rights might be usefully delimited, if the judges concentrated on enforcing only those rights which are essential to democratic society."90 for clearly if the courts were to expand their canvass beyond these important rights and freedoms then the benefits to society become more questionable and judicial review more difficult to justify. 87 theopanous v. herald & weeklytimes [1994] 68a.l.jr. 713 at 716bper mason c.j. the leading authority on this implied freedom is australian capital television pty. ltd. v. the commonwealth supra.n.69. here the high court ruled that part iiid of the political broadcasts and political disclosures act 1991, an act of the federal parliament, was invalid on the ground that it infringed the implied right of communication which was inherent in the australian constitution. see also stephens v. westaustralia newspapers [1994] 68 a.l.jr. 765 & the nationwide case [1992] 177 c.l.r.l. 8~lthough the drawing of implications from the constitution is not new, the application of such thinking to fundamental rights and freedoms is: see zines, the high court & the constitution (3rd.ed.,butterworths, 1993)). see alsomiller v. tcnchannelnine ply. ltd. [1986] 161 c.l.r. 556 where murphy lis implied freedom of communication failed to find favour with the rest of the high court. for a general discussion of this area see further, h.p.lee, "the australian high court & implied fundamental guarantees" [1993] p.l. 606. 89australian capital televsionply. ltd v thecommonwealth supra.n.69 at 140-42per mason c.j. 90 d.feldman, civil liberties and human rights in england and wales (oxford university press, 1993) at 55. 78 bonham's case ix. the rule of law and the polite rebellion in cases that concern ouster clauses the courts have already shown scant regard for the sanctity of statute law when it conflicts with the rule of law. in fact, their lordships "politely rebelled." 9]in anisminic ltd. v. foreign compensation commission the house of lords disregarded the clear and unambiguous words of the statute that stated that the findings of the commission "shall not be called into question in any court of law." 92drawing on precedents of some antiquity, their lordships claimed that the statute would not prevent them reviewing any decision of the commission if it had exceeded its jurisdiction. "the net result," as wade notes, "was that they [the judges] had disobeyed the act although nominally they were merely construing it in a peculiar but traditional way." 93in doing so, their lordships were doubtless more alive to the potential of the abuse of power, than were the legislators who passed the act. the anisminic decision, in a sense gave "us a constitution, establishing a kind of entrenched position to the effect that even parliament cmillot deprive [judges] of their proper function."94 in the same way that sir edward coke in bonham's case held that parliament could not make a man judge in his own cause, the house of lords in anisminic were asserting a common law doctrine of the separation of powers which statute could not override. thus as the courts clearly feel that statute law is no longer sacrosanct if it conflicts with the rule of law, what then is tlle difference in applying the same logic to statutes that undermine the efficacy of our representative democracy? 95 x. the failure of dicey a new role for the courts? the possibility, however, of further activism aimed at tlle protection of rights and freedoms is unlikely, due largely to the current narrowness of the judicial mandate, and the fossilised mind set of english public lawyers. this, of course, 91 supra.n.14 at 281-2. 92 [1969] 2 ac.147. 93 supra.n.23 at 65. 94 ibid. at 68. 9s see lord woolfs observations on the likely resistance of the judiciary to any proposal to remove judicial review contained in "droit public english style" [1995] p.l.57. 79 the denning law journal flows from the constitutional consequences of dicey, particularly his notion of the supremacy of parliament and beyond this, the austinian legacy of the rigid separation of law and morality. austin, w)lo had little time for civil liberties, is largely responsible for the mechanistic "law is law" positivism which so bedevils the mindset of english lawyers. 96 moreover lawyers, as wade has famously noted, are brainwashed from their professional infancy by the dogma of legislative sovereignty. 97 consequently, constitutional law has become, and is in danger of continuing to be, merely a series of footnotes to dicey. yet in propounding his theories dicey casually "announced that it was the law that parliament was omnicompetent, explained what this meant, and never devoted so much as a line to fulfilling the promise he made to demonstrate that this was so.,,98 the theories that dicey developed are, without doubt, both deeply flawed, and are hopelessly outdated being based to a large extent on the idea of a selfcorrecting democracy. 99 absent from dicey's work, not surprisingly, is any mention of bonham's case. in the light of such deep flaws it is difficult to understand why lawyers have taken dicey and his study so seriously. ironically, dicey himself refused to do so when they conflicted with his own political beliefs. 100 in fool's paradise, for example, he sanctioned the recourse to violence if the home rule bill was enacted even if "the british electorate sanction the monstrous iniquity."loi implicit in his work was the message that he too was all too aware of the failings of the theories he had nurtured. today, as lord hailsham has said, we would readily label these deficiencies "the elective dictatorship." in short the diceyan paradigm placed unbridled power into the hands of those who far from acting as the servants of the people have behaved as their masters. when, however, dicey 96j.austin, the province of jurisprudence determined, (ed. hl.a.hart),(weidenfeld & nicolson, 1954). 97 supra.n.23 at 68. 98a.w.b.simpson, oxford essays in jurisprudence (2nd.ed.,clarendon, 1973) at 96. 99it is not the purpose of this paper to undertake an analysis of dicey. this has been eloquently achieved by p.p.craig. see further, "dicey:unitary, self-correcting democracy and public law" [1990] 106 l.q.r. 105, and supra.n.38 at ch.2. 100 f .mount, the constitution now: recovery or decline (mandarin, 1993) at 56. 101 a.v.dicey cited in ibid at 55. 80 bonham's case wrote he was not concerned "to see strength curbed in response to the plaintive mewing of the weak." 102 dicey believed that the house of commons would protect liberty. today, however, the legislature is largely an instrument of executive government. and as such is increasingly used to diminish the rights and freedoms of the citizen, as the removal of the right to silence all too clearly shows.103 dicey re-enforced his belief in self-correcting democracy by claiming that civil liberties in england were adequately protected by the common law.104 however, like the notion of a self-correcting democracy the protection this affords is minimal, for statutes that curtail liberty are, on dicey's analysis, beyond the control of the courts. 105 however if lawyers recognise and reject the dangerous and inherent flaws in dicey's theories and look to develop a doctrine of judicial review based on the precedent in bonham's case, and the principles of the common law, freedom will undoubtedly be better protected. this, naturally, is further dependent on the willingness of the courts to change the ultimate principle. in every legal system there exists a basic rule by which the validity of legislation can be judged. in the united kingdom, the ultimate principle is, that which the queen in parliament enacts is law. this principle is what enables the courts, officials, and private individuals to determine the legality of legislation. in the united kingdom the ultimate legal principle is unique in that it is the only part of the common law that parliament cannot change. this common law rule is the ultimate constitutional foundation for "the rule of judicial acceptance is in one sense a rule of the common law, but in another sense which applies to no other rule of common law it is the ultimate political fact upon which the whole system oflegislation hangs." 106 the rule is unique, for the rule may not be altered by statute, contrary to what sir owen dixon thought, 107 for "legislation 102 ibid. at 57. 103 see further the criminal justice & public order act 1994, c.33.. 104 supra.n.38 at 36. 105 see generally, e.barendt, "dicey and civil liberties" [1987] p.l. 596. 106 h.w.r.wade, "the basis of legal sovereignty" [1955] c.l.j 172 at 188. 107 sir owen dixon, "the common law as an ultimate constitutional foundation" [1957] 31 a.l.j. 240 at 242-3. 81 the denning law journal owes its authority to the rule ... the rule does not owe its authority to legislation ... to say that parliament can change the rule because it can change any other rule is to put the cart before the horse.,,108 moreover, the ultimate principle lies within the keeping of the judiciary: "the decision of this question is not determined by any rule of law which can be laid down or altered by any authority outside the courts." 109 in this area it is the judges and not parliament who are sovereign. it is for the judges to declare what valid legislation is. the judiciary may be under a duty to obey the orders of the legislature, but it is the judiciary who determine what those orders are. thus it is quite natural that over the course of time, in the face of a changing society, "it is possible that the content of this rule could alter if the practice of those who operate the system changes.,,11o this, in part, is a political decision. for example, during the course of the factortarne litigation, the judges who heard that case recognised the political fact that the united kingdom's membership of the european union meant that the doctrine of implied repeal was in part redundant. iii the courts were simply recognising the fact that, for political reasons, in certain areas the u.k. parliament was no longer sovereign. previously it was believed that no parliament could bind its successor, yet parliament seems to have done just that. while, the factortarne litigation has not only exploded that myth, it has also shown that it is perfectly possible to review the validity of legislation against a set of higher principles. if an act of parliament conflicts with community law, it will be disapplied. 112how much longer before the belief in the diceyan fairy tale that, aside from european matters, parliament is free to enact any law it pleases, 108 supra.n.106 at 188. 109 ibid at 189. 110 p.p. craig, "sovereignty of the united kingdom after factortame" [1992] y.b.e.l. 221 at 250. iii r. v. secretary of state for transport ex p. factortame (no}) [1990] 2 a.c. 85, and r. v. secretary of state for transport, ex p. factortame (n02) [1991] 1 all e.r. 70. see also h. w.rw ade, "what has happened to sovereignty of parliament" [1991] 107 l.q.r.l. 112 for example, r v. secretary of state for employment, ex p. equal opportunities commission [1994] 3 w.l.r 409 and generally n. gravells, "diasapp1ying an act of parliament pending a preliminary ruling: constitutional enormity or community right 7" [1989] p.l.568 & "effective protection of community rights: temporary disapp1ication of an act of par1iament"[1991] p.l.180. 82 bonham's case ceases? indeed: "the realisation that the foundations [of orthodox theory] were flawed even at the time that dicey wrote, and that they have been further undermined since then, might cause some other institution, such as the courts to consider whether they should be exercising control over parliamentary power." 113 the decision to change the ultimate principle will doubtless be based on considerations of political morality. judicial obedience to an act of parliament is dependent, in part, on what the judiciary perceive as the basis of political morality. currently political morality, based on the recognition that the united kingdom is a representative democracy, informs the judicial decision to interpret restrictively repressive statutes. such ideas, however, might equally justify rejections of statutes whose injustice was especially grave. 114 thus any immoral act that undermines the efficacy of representative democracy by restricting the franchise on racial grounds or licences the press, clearly does not deserve either to be recognised as valid law or receive judicial obedience. in practice the decision to alter the ultimate principle in order to protect fundamental rights and freedoms is not as unlikely as it may, at first sight, appear. a close study of canadian law before the charter, for example, reveals a judicial willingness to change the ultimate principle in an effort to uphold the rights and freedoms of the individual. before the passage on the canada act 1982, the canadian federal parliament, within its jurisdiction, was like westminster supreme, 115 although a law ifit was to be valid had to come within the grant of legislative power contained in section 91 of the constitution act 1867.116 freedom of expression, however, was not placed within the distribution oflegislative power. likewise, there was no express provision in the constitution act guaranteeing free speech. instead, the canadian judiciary came to rely on the preamble to the constitution act, which granted "a constitution 113 supra.n.110 at 250. 114 t.r.s allen, law, liberty and justice (clarendon, 1993) at 284. 115 for example pearson's case [1928] 4 d.l.r 98 at 112-3 per duff c.j.c. iiijo & 31 vict. c.3 (uk). until 1982 intituled the british north america act but since retitled as the constitution act (cf canada act 1982). if the legislature in question was provincial then s.92 of the constitution act would be applicable. 83 the denning law journal similar in principle to that of the united kingdom" to canada, in order to vindicate free speech. the preamble, which had no enacting force, was employed by the canadian judiciary to alter the ultimate principle in this area by finding implied limitations on the legislative sovereignty of parliament. as these judges believed that they were protecting free speech under an unwritten constitution similar in principle to our own, then their reasoning is surely highly persuasive. thus during the seminal case, re alberta legislation, the canadian supreme court derived from the constitution act, its preamble and the grant of representative government in the form of parliamentary democracy, an implied freedom of communication that provincial legislatures had no power to curtail.l17 sir lyman duff, canadian chief justice, considered that any act similar to the questioned bill, which purported to suppress public debate or the freedom of the press, would deny "the very breath of life for parliamentary institutions." 118 it would thus not only be repugnant to the constitution act but would also be beyond the competence of a provincial legislature. 119 the provinces lacked the legislative power "to reduce the ability of the people to participate in the democratic process through the expression of opinions." 120 later, during switzman v. elbling mr justice abbot went further in a now famous dictum expressing the opinion that free expression could not be abrogated by either provincial or federal legislatures. 121 bonham's case and its progeny show that an ultimate principle which allowed the control of legislation by the courts has been previously recognised long before our accession to the european union. in areas other than e.c.law it could easily be recognised again. 122 following the partial normative reformulation of dicey's ideas in the aftermath of the factortame decision, it is not such an enormous mental leap to do it in another area by limiting parliamentary power to mould the constitutional landscape. this, quite naturally, would be based on the recognition that parliament in the vital area of the liberty of the individual within 117 re alberta legislation supra.n.69 at 106-9 & 119-20. 118 ibid. at 107per duff c.j.c. 119 ibid. at 106-9per duffc.j.c. 120 s.i.bushnell, "freedom of expression the first step" [1977] 15alberta l.rev. 93 at 114. 121 supra.n.64 at 371. 122 supra.n.49 at 16. 84 bonham's case a representative democracy must not have the final word on the limits of its own power. as with the attempt to remove the separation of powers in the anisminic case, parliament in abrogating common law rights and freedoms is illegitimately attempting to assume the power of detrimentally moulding the constitutional landscape. 123 by legislating in this marmer, parliament upsets the balance of the constitution while simultaneously illegitimately enhancing its and the executive's position within our constitutional settlement. in short, "a stream carmot rise above its source." 124 after all "the doctrine of the sovereignty of parliament must itself be found in the common law which first distributed among the branches of government their respective functions." 125 the common law is the basis of our constitution, containing as sir owen dixon put it, the anterior corpus which provides the juristic authority for the institution of parliament. 126 without question, the common law is the source of the principle of legislative supremacy. thus, it is to the decisions of the courts which determine what the nature of the power is , but also, more importantly from the perspective of this paper, what limitations there are on its power. 127 for example, "it is a proposition of the common law that no court may question the validity of a statute." 128 equally, the common law is the source of the proposition that no parliament may bind its successors. 129 the last example has, of course, been recently adjusted by the courts to take account of the political reality of our continuing membership of the european union. why stop at these if faced with oppressive legislation? in both pre-charter canada and more recently australia the courts have limited legislative supremacy with little in the way of explicit justification from their respective constitutions. both the canadian preamble doctrine, as noted 123 supra.n.92 & text. 124 heiner v. scott [1914] 19 c.l.r.381 at 393 per griffithc.j.; & the australian communist party case [1950] 83 c.l.r.l. 125 supra.n.50 at 38. 126 supra.n.l 07 at 240. 127 supra.n.3? at 85. 128 supra.n.l 07 at 242. 129 ellen street &tates v.minister of health [1934] k.b.590 at 597 per maughaml.j. 85 the denning law journal above, and the australian implied freedom of communication 130 are predicated on notions of responsible and accountable democratic government. indeed, what textual justification is employed is a smoke-screen laid by the judiciary in order to hide the alteration of the ultimate principle. 131 thus in australia the ultimate principle before australian capital television case was "the federal parliament, within the terms of the constitution, 132 is supreme." today following the high court's innovative judgement, the principle has become "subject to the implied freedom of communication, the federal parliament, within the terms of the constitution, is supreme." as free speech is just as vital to the constitution of the united kingdom, this begs the question of whether or not the u.k. courts should seek to limit the principle of legislative supremacy by the development of a common law constitutional principle, similar to those created in canada and australia. here it is important to remember that just as the development of the common law principle of legislative supremacy was influenced by both abstract conceptions of sovereignty and changes in political thought, now other political conceptions and theories, perhaps on the lines outlined above, might playa part in limiting the absolute power of parliament. where will the courts gain the authority to review legislation? in such circumstances the courts will acquire their power after the question has arisen, and a decision has been given. 133 the power to review legislation is acquired ex postfacto, and appears to have been inherent all along. this, of course, is exactly what happened in the seminal american case marbury v. madison. 134 although the american constitution did not expressly provide for judicial review of legislation, the supreme court appropriated the power, which it has retained ever since. while it is, of course, easy to treat the u.s. constitution as the paramount consideration and ignore the role of the general law, under marbury v. madison, as in bonham's case, the common law is, in fact, controlling acts of the legislature. in the u.s.a. it is the courts that have administered the elixir of 13°australian capital televsion pty.ltd. v. the commonwealth supra.n.69. see also the nationwide case supra.n.87. 131 australian capital televsion pty.ltd v. the commonwealth ibid. at 108per madam justice gaudron. 132 constitution of the commonwealth 1901 (section 9 commonwealth of australia constitution act 1900 (63 & 64 vict.c.12». 133 h.r.a.hart, the concept of law (2nd.ed.,oxford university press, 1994) at 153. 134 (1803) 1 cranch 103. 86 bonham's case life to the constitution. furthermore, the ultimate principle is not open to doubt on every point, only on some points. 135thus the rule that the queen in parliament can enact whatever law it pleases could be held open to doubt on the point of whether it is constitutionally proper for parliament to abrogate rights and freedoms that it is entrusted with protecting. to deny this point would, of course, be to endorse the principle of constitutional suicide by a liberal democracy. the courts would only be questioning this vital area of the ultimate principle, not the principle in its entirety. thus, in the sphere offundamental rights and freedoms, the supremacy of the legislature would be ousted in favour of a very limited but necessary form of judicial supremacy. this might, for example, be based on the recognition that a theory of limited judicial supremacy could be instrumental in the protection of the normative rights and freedoms of democracy. needless to say, any such rights and freedoms will be subject to reasonable and necessary limitation by the courts. free speech for instance is not an absolute. like other rights and freedoms it must often be limited by other important, and at times, competing rights and values. this, of course, is a task that institutionally the courts are well suited to doing. english law "by dint of sheer repetition, academic preaching of the absolutist theory of sovereignty has"as walker observes, "diverted the attention of bench and bar away from the more limited and balanced principle developed by common lawyers during the seventeenth century ...[namely] one of parliamentary supremacy, not sovereignty." 136sir edward coke, for example, noted during the debate on the petition of right 1628 that '''sovereign power' is no parliamentary word ... magna carta is such a fellow that he will have no sovereign.")3? that debate was, of course, concerned with the sovereign power of the king in person. yet the tenor of the contributions to the debate make it clear that sovereign power was unknown both to parliament and the law. what parliament had in mind was a government of laws and not men.138 at the heart of dicey's flawed theory is an irreducible contradiction between the rule of law and the sovereignty of parliament. indeed dicey himself never managed to reconcile the two. this is not surprising. it is, of course, essential for the maintenance of the rule of law that legislative power be subject to certain i3s supra.n.l33 at 147-54. 136 supra.n.14 at 279. 137 3 st. tr. 59 at 193 cited in walker, ibid. 138 supra.n.14 at 279. 87 the denning law journal limits, for while parliament can enact any law at any time on any subject then "the rule oflaw is little more than ajoke." 139such limits to legislative power, as the international commission of jurists noted, can either be legal or customary.140 it is an often overlooked feature of the constitutional landscape that the power of our unbridled parliament is tempered by convention. until recently, it was a vague but clearly accepted convention, resting on the principle of constitutionalism and the rule of law, that parliament did not use its unlimited power to legislate in an oppressive or tyrannical way. 141the power of parliament would, according to convention, be exercised in a manner that conformed to the principles of constitutionalism, the rule of law and toleration of minorities.142 this convention, in keeping with all constitutional conventions is bereft of any legal sanction to enforce compliance. not surprisingly it is increasingly flouted, as the criminal justice and public order act 1994 graphically illustrates. 143 in tolerant times judges are all too ready to say how they would respond to situations where parliament did the unthinkable and enacted a form of apartheid. in oppenheimer v. cattermo/e lord cross observed obiter that any form of antisemitic legislation "which takes away without compensation from a section of the citizen body singled out on racial grounds all their property ... and in addition deprives them of their citizenship ... constitutes so grave an infringement of human rights that the courts ought to refuse to recognise it as law at all." 144 amazingly his timid colleagues lord pearson in the lords, and lord justices buckley and orr in the court of appeal, felt compelled to bow to the supremacy of the german lawmaker. 14ssome judges, whatever the content of statutes, are only too happy to continue to subscribe to dicey's dogmas. perhaps this state of affairs is a consequence of the marination of english lawyers in positivism. the 139 ibid at 281. 140 the rule oflaw in afree society (international commission of jurists, 1960) at 198 & 210-15 cited also in walker, ibid.. 141 g.marshall, constitutional conventions, (clarendon, 1984) at 9 & 201. 142 ibid at 201. 143 c.33. see further m.j.alien and s.cooper, "howard's way a farewell to freedom?" [1995] 58 ml.r.364. 144 [1976] a.c. 249 at 278. 145 ibid at 265, and [1973] ch. 264 at 64-5. 88 bonham's case result, an obsession with rules of law and their mechanical application, eschews any contemplation of the moral content oflaw. the dangers are obvious, as the experience of inter-war germany eloquently illustrates. at this time the only acceptable legal philosophy was positivism; a feature of the legal landscape that was most congenial to the evils of nazism. in short, the adherence to the "law is law" mentality of positivism by german lawyers left them unable to deal with oppressive laws. more recently in south africa, parliamentary sovereignty under a westminster style constitution has been "taken to its logical and brutal conclusion at the expense of human rights." 146 under the apartheid policies systematically pursued by the national party in south africa, the judiciary, who were a paragon of positivistic virtue writ large, undoubtedly helped to advance the sacrifice of human rights and the rule of law upon the altar of parliamentary sovereignty. 147 somewhat ironically in dealing with such "hard cases" the courts will excuse their judgements by pointing to the democratic nature of the institution they are obeying. 148 they will go on to suggest that remedial action be sought via the ballot box. 149 yet when laws grant or retract human rights from people according to arbitrary caprice even lawyers, as the eminent german jurist, gustav radbrusch, argued, "must find the courage to deny them the nature of law.,,'5o 146j.dugard, human rights and the south african legal order (princeton university press, 1978) at 36. 14'seegenerally, dugard, ibid. also wouter de vos, "the challenge facing the south african judiciary: further comments" in s.shetreet (ed.), the role of courts in society (martinus nijhoff, 1988). 148builders' labourers federation v. minister of industrial relations supra.n.60 at 405dg per kirby p. 149quebecassociation of protestant boards v. a-gfor quebec (n02) [1982]140 d.l.r (3d.) 33 at 52. 150barend van niekerk, "the warning voice from heidelberg the life and thought of gustav radbruch" [1973] s.a.l.j. 234 at 248. 89 the denning law journal xi. conclusion thus, in the end, there can be little doubt that there are "advantages in making it clear that ultimately there are limits on the supremacy of parliament which it is the courts' inalienable responsibility to identify and uphold." 151 yet quite what these limits are and on what grounds they likely to be justified, is a question that can only be resolved by the courts drawing on their conceptions of political and constitutional morality in the context of particular cases. if the political morality of the british constitutionalism fails to restrict legislators, then in the last resort the courts will have to formulate a legal morality that recognises the worth of the rights and freedoms of the individual. whilst it is preferable that the legislature itself imposes limits on its own power through a bill of rights, the time may well arrive when in the absence of such an instrument and in the face of oppressive legislation the courts may need to revive the doctrine in bonham's case. in acting as the platonic guardians of liberal democracy the courts should not feel constrained by precedents expressing total deference to the absolute sovereignty of parliament. such precedents were written in different constitutional context, not only before the advent of th~ concept of legally enforceable human rights but also before the westminster paradigm of responsible government had become dysfunctional. 151 lord woolf of bames, supra.n.95 at 69. 90 provocation: to be or not to be an attributed characteristic *simon parsons there is currently disagreement as to when a characteristic of the defendant can be attributed to the reasonable man in the objective question in the defence of provocation before that question is considered by a jury. the issue is whether there is a distinction between provocability (impaired self-control) and provocativeness (increased sensitivity). it has been strongly argued that, when considering whether a defendant has complied with the standard of self-control which is required if provocation is to be established in law, characteristics such as the defendant's explosive temperament must be excluded from the objective question, as these relate to self-control. 1 in contrast, individual characteristics which go to the gravity of the provocation should be included as these increase the defendant's sensitivity to the provocation. this article will argue that decisions of the house of lords and the privy council have developed and maintained this distinction whilst decisions of the court of appeal have not. the reasons for this conflicting case law will also be considered. section 3 of the homicide act 1957 provides: "where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man." provocation is a special or partial defence in that it reduces a killing that would • senior lecturer in law, southampton institute. i am grateful to howard davies, georgina andrews and an anonymous reviewer for their helpful comments on an earlier draft of this article. 1 a.ashworth, "the doctrine of provocation" [1976] c.j.l. 292 at pp.299-300. 139 the denning law journal . have been murder to voluntary manslaughter and thus gives a judge discretion when sentencing. the defence involves two questions. first was the defendant provoked to kill? 3 second, would a reasonable man in the same circumstances been provoked to "do as [d] did?''''the burden of proof is on the prosecution so for the defence to succeed the jury must hold a reasonable doubt on both questions. the subjective question' the first question for a jury to consider is whether the defendant was provoked to lose his self-control.s the defendant need not completely lose his self-control in the sense that he did not know what he was doing, it being sufficient that he became so angry that he was unable to restrain himself6 if the defendant lost his self-control for some other reason, for example, 'fevenge or fear, then the defence will not be available to him.? the jury can take into account all the defendant's characteristics when considering this question because they will be able to consider the relevant evidence which will include those characteristics. the provocation must amount to specific words or conduct or both, as the jury must have an idea what the provocation was, otherwise it will be asked to do the impossible when considering the objective question the reaction of the 2 provocation is available as a defence only to a murder charge although this includes an accomplice to murder. 3 the provocation need not be illegal or wrongful but can amount to, for example, a baby crying: doughty (1986) 83 cr.app.r. 319. 4 this should, it is submitted, mean "to kill" and not "to kill and act as d did after the killing" because conduct after the killing should be irrelevant but the court of appeal in clarke [1991] crim. lr. 383 objected to this view. in that case the defendant strangled the victim and then electrocuted a corpse. the court of appeal held.that there was no limitation to the words "do as he did" and the electrocution should be considered 5 the provocation does not necessarily have to originate from the victim. provocation can originate from third parties (davies [1975] q.b. 691) or be directed at third parties:pearson [1992] crim.lr. 193. 6 richens (1994) 98 cr.app.r. 43. 7 thus it appears that the underlying emotion accompanying a loss of self-control is limited to anger which tends to be a male emotion rather than female. however why should not fear be the underlying emotion? this point has not been considered by the court of appeal or the house of lords, although the high court in australia has commented: "no doubt it is true to say primarily anger is a feature of provocation and fear a feature of self-defence. but it is too much to say that fear caused by an act of provocation cannot give rise to a defence of provocation." van den hoek v. r. (1986) 161 clr. 158 at 167. 140 provocation: attributed characteristics reasonable man to unknown provocation.8 the objective question. the jury may determine that there is a reasonable possibility that the defendant was provoked to lose his self-control when he killed. this does not mean the defendant will succeed in the defence unless the jury is also satisfied that there is also a reasonable possibility that "the provocation was enough to make a reasonable man do as he [the defendant] did.,,9 before this second question can be considered by a jury thejudge will need to direct it as to which of the defendant's characteristics can be attributed to the reasonable man. this is the source of conflict between the court of appeal on the one hand and the house of lords and the privy council (at least a majority in the privy council) on the other. in bedder v dpp the house of lords held that the reasonable man was an ordinary normal adult person, thus a purely objective test was imposed. 10 so if the defendant was a juvenile he was disadvantaged, as the self-control of an adult person would be expected of him. in addition the common law rule was that provocative occurrence was limited to acts of violence by the victim upon the defendant. thus there was no need to consider provoking words, so if the defendant was provoked about, for example, his impotence that characteristic could not be attributed to the reasonable man when applying the objective test. section 3 of the homicide act 1957 amended the common law in three ways. first, it allowed words alone to constitute provocation. second, it consequently allowed the defendant's characteristics to be taken into account when applying the objective test. third, ifthere is any evidence of provocation, a judge has a duty to leave the defence of provocation to the jury. 11 in camplin the house of lords held that the decision in bedder required revision in view of these changes made to the common law.12 in camplin the victim forcibly buggered the defendant, who was a fifteen year old boy, and then laughed at him. this provoked the defendant to lose his self-control so that he hit the victim over the head with a chapati pan killing him. on appeal to the house of lords, lord 8 acott [1986] crim.l.r 664. 9 s.3 of the homicide act 1957. 10 [1954] 1 w.lr. 1119. ii even if the judge is satisfied that any reasonable jury would be sure that the provocation would have not provoked a reasonable man to kill. a defendant has a right to a perverse verdict although loss of this right has no redress on appeal: dhillion [1997] crim.l.r 295. 12 [1978] a.c 705. 141 the denning law journal diplock stated: "[a] proper direction to ajury ... should state ... that the reasonable man referred to in the question is a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused's characteristics as they think would affect the gravity of the provocation to him; and that the question is not merely whether such a person would in like circumstances be provoked to lose his self-control but also whether he would react to the provocation as the accused did.,,13 it is the use of this direction as an interpretation of the objective question in section 3 which has led to the conflicting case law. however, there is some agreement in that the courts agree that age is relevant in the assessment of the level of the standard of self-control which has to be complied with, if provocation is to be established in law. thus, a lower level of self-control is expected of a juvenile compared to that of an adult. the relevance of gender or sex to selfcontrol is not wholly clear but if the social conditioning of women not to react with violence is relevant then a higher standard of self-control would be expected. but this breaches the principle of equality before the law and the high court of australia has rejected this view, holding that only age is relevant to the level of self-control to be expected. 14 it is the second possible use of the direction as an interpretation of section 3 which has led to the tension between the courts. two years after camplin came the court of appeal decision of newell. is in newell the defendant's girlfriend had left him because of his alcoholism. the defendant became grief stricken and attempted suicide. having survived a suicide bid, the defendant went to the victim's flat where they both drank a substantial amount of alcohol. the defendant was explaining to the victim how devastated he was when the victim said: "why don't you forget that fucking bitch; she's no fucking good for you. why don't you come to bed with me?,,16 this provoked the defendant to hit the victim over the head with a heavy ashtray at least twenty times, killing him. the court of appeal relied on an obiter dictum of north 1. in the new zealand 13 ibid at 7]8. 14 masciantonio (1995) 69 a.l.j.r. 598; stingel (1996) 20 crim. l.r. 72. 15 (] 980) 71 cr.app.r 331. 16 ibid at 333. ]42 provocation: attributed characteristics decision of mcgregor17 for sole guidance for the meaning of lord diplock's direction in camplin. north 1. stated: "[t]he characteristics must be something definite and of sufficient significance to make the offender a different person from the ordinary run of mankind, and have also a sufficient degree of permanence to warrant its being regarded as something constituting part of the individual's character or personality ...[it covers] not only ... physical qualities but also ... mental qualities and such more indeterminate attributes as colour, race and creed ... moreover... there must be some real connection between the nature of the provocation and the particular characteristic of the offender by which it is sought to modify the ordinary man test. the words or conduct must have been exclusively or particularly provocative to the individual because, and only because, of the characteristic.,,18 the court of appeal found this to be "impeccable"19 and applied it by not allowing the defendant's grief to be taken into account when considering whether an ordinary person would have been provoked by the victim's disparaging remarks about the girlfriend. the reason must be that the grief was only a transitory phenomenon and not permanent and thus had to be excluded. however in camp/in lord simon had stated the "entire factual situation,,2o is relevant to the assessment of the gravity of the provocation and in morha/p lord goff criticised the requirement that characteristics had to be permanent stating that transitory physical conditions (such as eczema) should be taken into account if the subject oftaunts.22 the conclusion must be that the court of appeal was wrong to exclude the defendant's grief from the assessment and such exclusion was prejudicial to the defendant?3 17 []962] n.z.lr. 1069. 18 ibid at 1081-1082. \9 supra n.15 at 340. 20 supra n.]2 at 727. approved by lord goffin morhall [1995] 3 all e.r. 659 at 665. thus if the defendant is a battered woman (whether suffering from battered woman syndrome or not) and there is a history of battering which increases the gravity of the provocation of the last case of violence then the ordinary person in the objective question should be subject to that history. 2\ [1995] 3 all e.r. 659. 22 ibid at 667. 23 the court of appeal was right to exclude the defendant's chronic alcoholism as that 143 the denning law journal the decision in newell has influenced other decisions of the court of appeal. in ahluwalia lord taylor confmned that a permanent characteristic relating to the mental state or personality of an individual could be taken into account by a jury when applying the objective test.24 in dryden25 lord taylor held that the defendant's obsessional behaviour was a relevant characteristic.26 in humphreys27 lord justice hirst held that the defendant's abnormal immaturity was permanent and therefore a relevant characteristic.28 in thornton (no.2/9 lord taylor held that battered woman's syndrome and the defendant's personality disorder were relevant characteristics.30 all these decisions quote north 1.'s dictum but only apply the first part of it relating to the permanence of the characteristics. the latter proviso requiring that the characteristics go to the gravity of the provocation is not applied. this has not been accepted as good law as in the privy council decision of luc thiet thuan v r31lord goff criticised newell for "the wholesale adoption, without analysis, of a substantial part of [north j's] obiter dictum,,32 because that dictum interpretated a new zealand statute which provided for a provocation defence33 but not a separate defence of diminished responsibility34 thus the influence of newell on the subsequent court of appeal decisions in ahluwalia, dryden, humphreys and thornton (no.2) is "to incorporate the defence of diminished responsibility indirectly into the law of provocation,,35 with the result of transforming "the objective approach,recognised by the united kingdom parliament in 1957, into a subjective approach, though doubtless l1aving the characteristic did not go to the gravity of the provocation: supra n.15 at 340. 24 [1992] 4 all e.r. 889 at 897-898. 25 [1995] 4 all e.r. 987. 26 supra n.25 at 998. this was obiter as the court found that the defendant had not lost his self-control. 27 [1995] 4 all e.r. 1008. 28 ibid n.27 at 1022. this means that there is no distinction between chronological age and immaturity as both can be taken into account even though both do not go to the gravity of the provocation. the appeal was allowed and a conviction for manslaughter substituted. upon release the defendant died of a drug overdose having become addicted to prescribed tranquillisers in prison. 29 [1996] 2 alle.r. 1023. 30 ibid at 1031. 31 [1996] 2 all e.r. 1033. 32 ibid at 1043. 33 new zealand crimes act 1961 s.169. 34 cf s.2 of the homicide act 1957 and s.3 of the hong kong ordinance. 35 supra n.31 at 1046. 144 provoca non: attributed characteristics effect of excluding cases of intoxication and bad temper. ,,36 the further complication which flows from this approach is that with diminished responsibility the burden of proof (the civil burden) is on the defendant and thus: "[i]f diminished responsibility was held to fonn part of the law of provocation, the extraordinary result would follow that a defendant who failed to establish diminished responsibility ... might nevertheless be able to succeed on the defence of provocation ... on the basis that, on precisely the same evidence, the prosecution failed to negative, on the criminal burden, that he was suffering from a mental infirmity affecting his self-control which must be attributed to the reasonable man for the purposes of the objective test. ,m this leads on to the crucial question in this article what is the nature and purpose of the objective test? the explanation of lord diplock's direction by lord goff in morhall and lue thietthuan can be taken to indicate that any characteristic is relevant to the assessment of the gravity of the provocation even if that characteristic is discreditable38 it is submitted that this reasoning was influenced by professor ashworth's conclusion made in 1976 that: "[t]he proper distinction ... is that individual peculiarities which bear on the gravity of the provocation should be taken into account [provocativeness], whereas individual peculiarities bearing on the accused's level of self-control should not [provocability ]"39 this means that where a defendant loses his self-control as a result of being provoked about one of his characteristics, that characteristic should be taken into account when applying the objective test so that a proper assessment of the seriousness or gravity of the provocation can take place. thus, for example, if the 36 supra n.31 at 1047-1048. cf new zealand where in mccarthy [1992] 2 n.z.l.r. 550 cooke j. considered that s. 169 of the new zealand crimes act 1961 had the legislative purpose of introducing diminished responsibility into the defence of provocation and because of this the second part of north j.'s obiter dictum was wrong. 37 supra n.31 at 1046. 38 discreditable characteristics would include alcoholism but not the fact the alcoholic defendant was the worse for drink at the time of killing :morhal/ [1995] 3 all er 659 at 666-667. 39 supra n.1 at p.300. 145 the denning law journal defendant is taunted about his sexuality then this will be a relevant characteristic to be attributed to the ordinary person as it bears on the gravity of the provocation, whereas if he is taunted about his nationality, his sexuality would be irrelevant. why has this distinction been made? one possible answer is that the objective component of lord diplock's direction is the ordinary person's power of self-control. in morhall lord goff stated that "[t]he function of the [reasonable man] test is only to introduce as a matter of policy, a standard of self-control which has to be complied with if the provocation is to be established in law.'040the policy underlying the objective question is to reduce the occurrence of fatal violence by stopping a person relying on his exceptional pugnacity or excitability as an excuse for the loss of self control.41 according to this view, by allowing mental characteristics to be attributed to the ordinary person, when such characteristics do not go to the gravity of the provocation, the court of appeal is confusing provocability with provocativeness. this means that the distinction between the subjective and the objective questions is breaking down, because the objective application of the ordinary person's power of selfcontrol is being eliminated. lord goff states that this approach should be halted and the distinction between provocabi1ity and provocativeness should be maintained.42 however, in his dissenting judgment in luc thiet thuan v r lord steyn maintains that the court of appeal decisions are right in that "[t]he law remains that a defendant may not call in aid his own irascibility or pugnacity ... that does not mean it was right to ask the jury to ignore the defendant's brain damage.'043this has received academic criticism: "a jury may well wonder whether there is any difference between an eccentric and highly abnormal obsessional personality and an explosive one, especially when the personality is being advanced as the reason why the defendant "blew up". can we really distinguish between irascibility and the various mental conditions which give rise to irascibility? it seems that lord steyn's opinion would virtually eliminate the distinction between the subjective and objective tests.'044 40 supra n.21 at 665. 41 supra 0.12 at 716 per lord diplock. 42 supra 0.31 at 1045 43 supran.31 at 1055. 44 j.c.smith in the commentary to humphreys [1996] crim l.r 432 at p.434. 146 provocation: attributed characteristics but is this really the case? there is support for the view that a qualified objective condition is possible, even though the defendant's mental condition is taken into account, in that there is not an unquestioning acceptance of defendant's inability to exercise self-control. the inability to exercise self-control has to be reasonable for that defendant.45 the question is what is the precise nature of this objective element? it must involve the jury applying their common experiences of such mental conditions, however these are likely to be limited to that ofthe defendant. it appears,therefore, that this interpretation will compel the jury to apply the subjective question twice which is a nonsense. it is submitted that the real effect of the court of appeal decisions is to lower the standard of self-control required for those unfortunate enough to suffer from incapacitating mental conditions. it could be argued that this is consistent with allowing a lower standard for young people but, unlike new zealand law, english law allows for the separate defence of diminished responsibility and: "[t]he distinction between the two [provocation and diminished responsibility] ought logically be based on causal grounds. where d's reaction was caused predominantly by the provocation, the defence should be provocation [provocativeness]. where the reaction stemmed predominantly from some psychological or physical condition affecting d's behaviour, the defence should be diminished responsibility [provocability] ,,46 unfortunately this distinction between provocativeness and provocability is not being maintained in the court of appeal. in smith47 it was held that the defendant's severe depressive illness which resulted in him being disinhibited should have been attributed to the reasonable man even though it did not go to the gravity of the provocation.48 a jury may well query the difference between disinhibition and exceptional pugnacity or excitability. the answer must surely be that there is no difference as a defendant's disinhibition, irascibility, pugnacity, excitability or explosiveness all have the same effect of reducing the defendant's self-control. these characteristics should be excluded as the objective question is the application of the ordinary person's power of self45 see a.buchanan & g.virgo, "duress and mental abnormality" [1999] crim.l.r. 517 at pp.530-531. c.m.v.clarkson & h.m.keating, criminal law text and materials (4th ed., sweet & maxwell, 1998) at p.334. 46 a.ashworth, principles of criminal law (3'd ed., oxford university press, 1999) at p.278. 47 [1998] 4 all e.r. 387. 48 ibid at 399. 147 the denning law journal control and to do otherwise is inconsistent with section 3 of the homicideact. conclusion it is submitted that the majority in the privy council in lue thiet thuan v r came to the right decision because the objective question in the defence of provocation is indeed the application of the ordinary person's power of self· control and those defendants who are mentally disordered should rely on diminished responsibility. the decision in lue thiet thuan has influenced trial judges, for example, in parker where the trial judge ruled that the defendant's brain damage caused by chronic alcoholism should be excluded as he was not provoked on that condition a decision reversed by the court of appeal 49 however, the influence of lue thiet thuan is limited since decisions of the privy council are not binding on the court of appeal but rather are persuasive precedents. if there had been five law lords sitting, who had displayed unanimity, the decision in lue thiet thuan would have been very persuasive as it would represent the view of the house of lords, but regrettably there were only two law lords and they disagreed. thus the persuasiveness of the decision is limited and the lord chief justice, lord bingham (as he then was) made the obiter point in campbell50 that the court of appeal decisions are binding on trial judges until overruled by a house of lords decision.51 why has the court of appeal continued with this approach? the answer must be so that there can be a liberalisation of the defence in favour of defendants because, having decided who the reasonable man is, the jury must then apply the objective test. that involves deciding whether there is a possibility that a reasonable man would also been provoked to lose his self-control and kill. the jury are more likely to consider there is such a possibility if the reasonable man has, for example, the defendant's disinhibition as an attributed characteristic. in effect the standard of self control required of those who suffer from mental illness is lowered below that required of capable defendants. the policy behind this approach appears to be to allow such defendants (including women who suffer domestic violence resulting battered woman syndrome) to have their response regarded as reasonable rather than mentally abnormal as is required for the purposes of diminished 49 [1997] crim.l.r. 760; [1997] lexis transcript, 13th september, 1999. 50 [1997] 1 cr.app.r. 199. 51 ibid at 207. a defining decision of the house of lords will now be forthcoming as in smith the court of appeal, having followed its earlier decisions on provocation, took the unusual step of granting leave to appeal: supra n.47 at 401; and see infra postscript for analysis of the decision of the house of lords in smith. 148 provocation: attributed characteristics responsibility. the problem with the approach of the court of appeal is that it is eliminating the ordinary person's power of self-control and parliament cannot have had this in mind when it enacted section 3 of the homicide act 1957. if the draft criminal code (clause 58 52) were enacted the distinction between provocability and provocativeness would be maintained as the second objective limb of the clause is as follows: "(b) the provocation is, in all the circumstances (including any of his personal characteristics that affect its gravity), sufficient ground for the lose of self-control." it is hoped that the forthcoming house of lords decision in smith will see a return to the interpretation of section 3 given in camplin so the distinction between provocability and provocativeness is reestablished. postscript the house of lords has now made its decision in smith and by a majority of three to two has upheld the decision of the court of appeal to quash the respondent's murder conviction. 53 it is lord hoffman's judgment that most clearly sets out the reasons for this decision, and the other two law lords in the majority, lord slynn and lord clyde, agreed with his speech. lord hoffman acknowledges that section 3 of the homicide act changed the common law so that if there is any evidence of provocation a judge has a duty to leave the defence of provocation to the jury. 54 a number of consequences flow form this. the first is that the jury is given not only a fact-finding function but also a normative one so that: "[t]hey were to determine not merely whether the behaviour of the accused complied with some legal standard but could determine for themselves what the standard in the particular case should be. ,,55 this means, in respect of the objective question, juries are to decide what, in law, amounts to provocation, and, in deciding this question, they can take account of any of the defendant's characteristics whether relevant to the gravity of the provocation or not. it would be a trespass upon a jury's province for a judge to direct them to ignore any of the defendant's characteristics when deciding whether the objective 52 "a person who, but for this section, would be guilty of murder is not guilty of murder if (a) he acts when provoked (whether by things done or by things said or both and whether by the deceased person or by another) to lose his self-control; and (b) the provocation is,in all the circumstances (including any of his personal characteristics that affect its gravity), sufficient ground for the loss of self-control. (law commission working paper. no.i77, 1989). 53 [2000] 3 w.l.r. 654. 54 ibid at 667h-668a. 55 ibid at 668b. 149 the denning law journal element of provocation had been satisfied. 56if a judge did make such a direction in respect of one characteristic which the jury thought central to the question of whether the act was sufficiently provocative then "the effect of such a direction would be to withdraw the issue of provocation altogether and this would be contrary to the terms of section 3.,,57the policy behind this is the principle of compassion to infirmity which includes not only youth but to other characteristics such mental illness or indeed being a battered wife.58 the second consequence flows from the first: "the law now recognises that the emotions which may cause loss of self-control are not confined to anger but may include fear and despair. ,,59 lord diplock's "proper direction to the jury" in camplin60 is distinguished as a specimen direction suitable only for cases like camplin and "not a one-size-fits all direction for every case ofprovocation.,,61 the third consequence is that by consigning the whole of the objective element in provocation to juries there will be an overlap between provocation and diminished responsibility as a jury can no longer be told to ignore, when considering provocation, characteristics which may found the defence of diminished responsibility.62 lord hoffman's view is that this is not only what section 3 requires, but represents the reality of how the law actually operates because juries have difficulty in distinguishing between characteristics that go to the gravity of the provocation and those relating to selfcontrol. 63 lord hoffman states that a direction on provocation to a jury should avoid reference to a reasonable man, instead any explanation should be in simple language. a suggested direction is given although this is not prescribed as: "[i]f judges are freed from the necessity of invoking the formula of the reasonable man equipped with an array of unreasonable 'eligible characteristics,' they will be able to explain the principles in simple terms.'>64 this decision represents a confirmation of the liberalisation of the defence by the court of appeal in favour of defendants. it means that a lower standard of self-control will be required of those who suffer from mental illness in 56 ibid at 668c & 668d. 57 ibid at 668d. 58 ibid at 670e & 673h. 59 ibid at 673h. 60 supra n.l3. 61 supra n.53 at 671e. 62 ibid at 673e & 673f. 63 ibid at 670f, 673h, & 674a. 64 ibid at 679b 150 provocation: attributed characteristics comparsion to capable defendants. lord slynn acknowledges this: "[i]t does enable the jury to decide whether in all the circumstances people with his characteristics would reasonably be expected to exercise more self-control than he did or put another way that he did exercise the standard of self-control which such persons would have exercised. ,,65 but the decision goes further than this as fear or despair are accepted as emotions that can underlie the loss of self control and it is battered women who experience these emotions when they kill their abusive partners. but there is contradiction in lord hoffman's speech as he states "male possessiveness and jealousy should not be acceptable reason for loss of self-control leading to homicide ,,66 and that a direction should be given to a jury that jealousy and obsession should be ignored when considering the objective element.67 the policy behind this is to protect the public by the law insisting that possessive and jealous men should exercise self-control. it is true that such men should exercise self-control but, if lord hoffman's reasoning on section 3 is correct, is it not a matter for the jury to decide? juries can surely distinguish between the despair of a battered woman and the anger of jealous man. it is submitted that if characteristics and emotions are the province of the jury that means all characteristics and all emotions and to hold otherwise is a breach of the principle of equality before the law as such a direction would withdraw, from the jury, the issue of provocation in respect of such men.68 the liberalisation of the defence is good news in one sense because it may help to reduce the incidence of domestic violence in society and this is to be welcomed. the concern is that a question of law is being left to juries and this is going to lead to inconsistency when the criminal law should be consistent. in his dissenting speech lord hobhouse recognises this: "[t]he function of the criminal law is to identify and define the relevant legal criteria. it is not proper to leave the decision to the essentially subjective judgement of individual jurors who happen 65 ibid at 660h & 661a. 66 ibid at 674g. 67 ibid. 68 there may also be a breach of article 6 of the european convention of human rightsthe right to a fair trial-as by section 6 of the human rights act 1998 courts must act in a way which is compatible with convention rights. 151 the denning law journal to be deciding the case. such an approach is apt to lead to idiosyncratic and inconsisent decisions. ,,69 however, the majority disagreed so there will be inconsistent decisions which means if a defendant raises the defence of provocation he or she may be faced with not having any idea as to whether the defence will succeed or not. 69 supra n.s3 at 710d. 152 book review the denning law journal 269 book review magistrates’ courts criminal practice 2006 david brewer (jordan publishing 2006), pp 2422 (hardback and cd rom), isbn 1 84661 011 7, price £140.00 susan edwards* for many years, criminal practitioners have relied on archbold criminal pleading evidence & practice (sweet and maxwell, pp 3070, price £310 hardback and cd rom) as ‘the’ trusted aide and mentor to criminal practice in all courts. more recently, blackstone’s criminal practice (blackstone press, now oxford university press, pp 2061, price £185 hardback and cd rom) has emerged as ‘the’ competitor. however, those who practise largely in the magistrate’s courts find anthony and berryman’s magistrates’ court guide (lexisnexis butterworths) essential reading. anthony and berryman’s has its obvious limitations of size (750 pages) and therefore detail, it has its benefits too at just under £50.00. practitioners in the magistrate’s court find themselves using either blackstone’s or archbold together with anthony and berryman’s. magistrates’ courts criminal practice 2006 combines the best of both these detailed and succinct worlds. it is divided into seven parts. part 1 covers procedural matters pp 3-472, part 11 elements of offences pp 475-567, part 111 statutes pp 5711523, part iv statutory instruments pp 1527-1994, part v practice directions pp 1997-2965, part vi codes of practice and guidelines pp 2069-2319, and part vii forms pp 2323-2373. published in march 2006 it has the advantage of being able to incorporate new case law under the provisions of the criminal justice act 2003, and the new sentencing regime and the criminal procedural rules 2005. it provides clear, lucid, succinct, and above all practical guidance. it is written by a legal team consisting of barristers, solicitors, clerks to the justices, district judges and law professors, precisely those whose professional experience draws on criminal practice in the magistrate’s courts. there’s no better way to assess the accessibility and relevance of a practise guide than actually putting it to use, under pressure in case preparation and in the courtroom. every practitioner practising in the * ba (cnaa ), ma , phd (manc), llm (reading), professor of law, deputy dean of law, university of buckingham; barrister, (door tenant) clarendon chambers 1 plowden chambers, temple, london ec4y 9bu. the denning law journal 270 magistrates court wants an accessible tool that can provide a quick and straightforward reference point to the procedure and to the law, especially when advanced information has been received only on the morning of the hearing and the client is waiting outside in the well of the court and the case is listed for 10.00 am. practitioners need a reference book that will take them straight to the procedure, the crime, the issues, what needs to be proved and the available defences. here, part ii elements of offences provides an essential compendium to 82 of the major offences likely to be encountered in the magistrates court, which will enable practitioners to identify quickly the elements to be proved can it be proved?the elements in dispute and what are the defences? magistrates’ courts criminal practice 2006 is a model of clarity and its novel form of page layout assists in developing that conceptual clarity required of a good advocate. the beauty of this book is its mind map approach to page layout, where each page is divided into three. the left hand side of the page puts the question, the middle articulates the principle, and the right hand side of the page states the relevant authority. so for example “making off without payment – theft act 1978, s 3” (p 529) the left hand side of the page lists the elements of the offence “knowing that payment on the spot for any goods supplied or service provided is required or expected from him,” the middle section develops and expands on the meaning of the terms, whilst the right hand side cites the relevant authority. what is also not only helpful but vital to practitioners is how to do it, whether laying the information, a first appearance, making a bail application, indicating a plea and mode of trial, to sentencing and mitigating. here part 1 is a godsend in providing a detailed narrative of procedure. every question one might ask or procedural matter encountered in the magistrates court is covered in this section, from legal advice and representation, to under what circumstances should a magistrate’s disqualify him or herself? other questions routinely encountered include:whether there is a need to consider severing an indictment, making an application for an adjournment (p 56), or an application for wasted costs (p 57) and the rules governing such applications and the issues the practitioner needs to consider in making such applications. the particular pages detailing the procedure to be followed in a summary trial for a not guilty/guilty plea (p 105) including the order of speeches are an absolute model of clarity and a delight to read. this is an essential text not only for practitioners in the early stage of their career but also for the “old, well seasoned” practitioner since procedural rules are undergoing change (criminal procedure rules 2005). one criticism however is that future editions would benefit from page cross-referencing. with magistrates’ courts criminal practice 2006 you will be certainly forewarned and forearmed and not out of pocket. book review magistrates’ courts criminal practice 2006 david brewer (jordan publishing 2006), pp 2422 (hardback and cd rom), isbn 1 84661 011 7, price £140.00 susan edwards* who controls the fat controller the denning law journal 1 who controls the fat controller? alistair alcock∗ sir topham hatt, known to thomas and all the other engines on the isle of sodor as the ‘fat controller’, started his career as a humble railway engineer. yet he rose to become the chairman and chief executive of the railway board. sir topham, of course, inhabited a simpler world than ours. he was not, for example, subject to the strictures of the combined code on corporate governance that recommends the separation of the posts of chairman and chief executive. nor was he subject to the slings and arrows faced by his recent reallife equivalent, gerald corbett of railtrack, despite the appalling accident record of sodor railways, and of thomas in particular. in fact there is a website pointing out that the reverend awdry’s railway books are really elaborate apologias for capitalism, with the fat controller as a benign boss and the engines as recalcitrant, albeit in thomas’s case cheerful, communist workers.1 one might have expected that the collapse of communism and the apparent triumph of global capitalism would make life easier for the sir tophams. however, i am sure gerald corbett and many other directors will vouch that criticism of the boards of leading public companies has never been fiercer. it is as though, realising that it is impossible to get advanced democracies to vote against capitalism, its enemies have turned their attention to undermining its principal institution, the publicly quoted company. this assault has consisted of two not entirely compatible attacks. 1. directors are out to line their own pockets, through remuneration and other benefits, that in no way reflect the returns made for their ultimate paymasters, the shareholders. 2. directors only consider the interests of those ultimate paymasters, when, given the sheer power they have over modern economies, they should be balancing the interests of all stakeholders, employees, creditors, suppliers, customers, shareholders, local communities, even the environment at large. these, of course, are not new issues. looking at the first criticism in one railway case of 1854,2 the courts took a hard line against directors involved in ∗ professor of law at buckingham university. 1 thomas j clark’s site at www.angelfire.com/hi2/goalie/tommycommy.html. 2 aberdeen railway co v blaikie [1843-60] all er 249. http://www.angelfire.com/hi2/goalie/tommycommy.html the denning law journal 2 self-interested decisions. subsequently though, they stepped back allowing shareholders to give their directors a free hand through the internal rules of the company and leaving it to parliament to put any overriding restrictions in place3. even now, those restrictions allow directors of uk public companies to negotiate 5 year service contracts without shareholder approval.4 as all employment contracts are highly protected, in the case of directors they lead to the seven figure pay-offs when they are removed.5 railtrack’s shareholders may see no money from recent developments, but the directors will. generous service contracts have arisen despite the combined code’s recommendation that executive directors’ remuneration be settled independently by committees of non-executive directors. it is pointed out that directors’ remuneration in the uk appears to be well ahead of that on the continent, although still behind that in the us. however, to what extent this is a reflection of more accurate disclosure required by law and encouraged by lower taxes in the us and uk rather than real underlying differentials, is hard to ascertain.6 there are now proposals to limit directors’ service contracts to one year unless approved in some manner by shareholders.7 as, in the end, directors remuneration and severance terms are costs borne by shareholders, giving them full information and the final say in setting them seems the only practical restraint, short of some outdated pay policy. so in this talk i want to concentrate on the second criticism of directors which raises the question – to whom should directors be answerable? the uk courts have laid down that a directors’ duty is to act bona fide for the benefit of the company, although that benefit is to be determined in the light of the objects of the company laid out in its constitution. the benefit is generally held to be for the shareholders as a body although a company is free to adopt charitable or other objects.8 even where its objects are purely commercial, 3 clauses an a company’s articles releasing the directors from liability have been upheld in re city equitable fire insurance co ltd [1925] 1 ch 407 and movitex ltd v bulfield [1988] bclc 104 but are limited by companies act 1985, part x. 4 companies act 1985, ss 318 and 319. 5 companies act 1985, s 316(3); for an analysis of recent payoffs, see the guardian, 30th august 2001. 6 the recent mannesmann pay-offs suggest that continental practices may not be as straightforward as believed until now. 7 modern company law for a competitive economy: final report (dti, july 2001), para 6.13, although in other respects the proposals on self-interested transactions relax the current law. 8 a company’s memorandum can contain charitable and other objects, re horsley & weight ltd [1982] 3 all er 1045, 1052. the denning law journal 3 the courts have allowed directors a wide subjective discretion. as bowen lj said back in 1883 in another railway case:9 “a railway company, or the directors of the company, might send down all the porters at a railway station to have tea in the country at the expense of the company. why should they not? it is for the directors to judge, provided it is a matter which is reasonably incidental to the carrying on of the business of the company….” perhaps to the relief of many here, even charitable payments to educational establishments can be reasonably incidental.10 the one notorious case where the courts did intervene was in the 1960s, parke v daily news.11 this involved an attempt by a board winding up the company to make extra payments as redundancy to its employees rather than return the money to the shareholders. the court held this could not be for the benefit of the company as it no longer needed any employees. there followed a public outcry and a change in the law. directors were given a specific power to make such payments even if they were not in the interests of the company. a general duty was also imposed on directors to consider the interests of employees, albeit a duty not enforceable by those employees.12 i remember being puzzled as a student in the 1970s, why the daily news affair caused such a fuss. two things struck me: 1. if, as is usual, the company had been insolvent on winding up, no one would have suggested there should be extra payments to employees at the expense of say trade creditors. why should shareholders, who are in some respects only creditors with particularly weak contractual rights, be treated differently? 2. imposing duties on directors to consider interests without an enforcement mechanism ironically increases their power, because this gives directors defences against interests that might otherwise have been able to enforce, ie shareholders. however, in the uk, individual shareholders have almost no legal power to enforce their interests against the directors of publicly quoted companies. from 9 hutton v west cork railway co (1883) 23 chd 654, 672. 10 evans v brunner mond & co ltd [1921] 1 ch 359. 11 [1962] ch 927. 12 companies act 1985, ss 309 and 719. the denning law journal 4 the early decision of foss v harbottle in 1843,13 through percival v wright in 190214 to re blue arrow plc in 1987,15 it has been made clear by the courts that, except in the most egregious cases, dissatisfied shareholders of such companies should not resort to law. they must either use their votes to change the management or sell their shares. theirs is only a loose residual control. so has the wide freedom the courts have given directors left them free to pursue the stakeholder view of corporate governance, balancing the interests of employees, creditors, suppliers, customers, shareholders, local communities and the environment?16 certainly those who passionately espouse the stakeholder view think not and they are probably right.17 dissatisfied shareholders tend to sell their shares. that lowers the share price. to the extent that directors themselves have shares or options, this directly hits their pockets. even where, as on the continent, they do not, a falling share price means a rising cost of raising money from the market, and from other sources like banks as they in turn become more nervous. a company with a low share price and a concomitant high cost of capital is restricted in the investments it can afford to make and is vulnerable to takeover by its more successful competitors, which means no jobs for its directors. this is the crude discipline of the market against which the stakeholder view rebels. that rebellion has marked up some successes in recent years. in the united states, a number of states have adopted stakeholder duties in their corporation laws.18 the courts have supported this approach by allowing directors to use poison pills to stop hostile takeover approaches being put to shareholders – leaving the directors free to consider other interests, not least their self-interest in keeping their jobs.19 following this line, the european parliament rejected a draft directive earlier this year that would have outlawed such a use of poison pills across the european union.20 meanwhile, in the uk, the company law review steering group looking into company law reform, also seems to have succumbed to the stakeholder (or as it terms it, the pluralist) approach. it has usefully defined this approach as believing: 13 [1843] 2 hare 461. 14 [1902] 2 ch 421. 15 [1987] bclc 585. 16 this is what berle and means predicted in the modern corporation and private property (new york: macmillan, 1932; revised 1967). 17 eg parkinson corporate power and responsibility: issues in the theory of company law (oxford: clarendon press, 1993) (“parkinson”). 18 eg pennsylvania’s business corporation law of 1988 as amended by the takeovers act of 1990, ss 1714 to 1721. 19 paramount communications inc v time inc 571 a.2d 1140 (del 1989); unitrin v amrican general corp 651 a.2d 1361 (del 1995). 20 13th company law directive. the denning law journal 5 … the ultimate objective of maximising shareholder value will not achieve maximum prosperity and welfare… company law should be modified to include other objectives so that a company is required to serve a wide range of interests, not subordinate to, or as a means of achieving shareholder value…21 in other words, the stakeholder or pluralist view goes further than asking directors to consider all relevant stakeholder interests in trying to maximise the long term value of the company for shareholders. it wishes decisions benefiting those stakeholders to be taken even if it harms shareholder value, what professor parkinson, a keen exponent of this view and a member of the steering group, has dubbed ‘profit sacrificing social responsibility’. the steering group (a sort of unofficial royal commission) subsequently concluded: “the overall objective [of uk company law] should be pluralist in the sense that companies should be run in a way which maximises overall competitiveness and wealth and welfare for all…”22 so has this stakeholder or pluralist view triumphed? not yet. in the us, shareholders can still get poison pills lifted by threatening to vote off the directors and the courts have been reluctant to allow directors to protect themselves from such removal by current shareholders.23 in europe the 13th company law directive may still be revived and would not in any case affect the uk takeover panel’s firm line against defence tactics that prevent shareholders deciding on bids. and for all its rhetoric, the company law review steering group has not accepted the pluralist view. indeed, it proposes to replace all the current common law duties imposed on company law directors,24 with a statutory formula that includes a ferocious reaffirmation of shareholder primacy, namely: a director of a company must in any case 21 modern company law for a competitive economy: the strategic framework (dti, feb 1999), para 5.1.13 22 modern company law for a competitive society: developing the framework (dti: march 2000), para 2.21 23 bank of new york v irving bank corporation 139 misc.2d 665 (ny sup ct 1988); hilton hotels corporation v itt corporation 978 f supp 1342 (nev 1997) 24 draft companies bill, s 17 in modern company law for a competitive economy: final report, annex c. the denning law journal 6 a. act in the way he decides, in good faith, would be most likely to promote the success of the company for the benefit of its members as a whole…; and b. in deciding what would be most likely to promote that success, take account in good faith of all the material factors that it is practicable in the circumstances for him to identify. this seems a much tougher duty to forward shareholders’ interests than the current one imposed by the courts. there are no general overrides for charitable purposes or employees’ interests unless they appear specifically in the company’s constitution. even the interests of creditors may be downgraded.25 so where have all the much vaunted stakeholder or pluralist interests gone? they have been relegated to the notes explaining ‘the material factors that it is practicable in the circumstances for him to identify’ and not even to the primary factors. no, stakeholders are merely included in other factors and are listed as: a) the company’s need to foster its business relationships, including those with its employees and suppliers and the customers for its products or services; b) its need to have regard to the impact of its operations on the communities affected and on the environment; c) its need to maintain a reputation for high standards of business conduct; d) its need to achieve outcomes that are fair as between its members. notice, these ‘needs’ only arise to the extent that a reasonable director would consider them relevant in the circumstances to promote the success of the company for its members. they are awarded no special weighting and are certainly not given any mechanism for direct enforcement. indeed, the drafting puts as the primary factors: the likely consequences (short and long term) of the actions open to the director, so far as a person of care and skill would consider them relevant. this emphasises two matters of particular concern to the steering group, but which are both probably current law: 25 some duty currently arises under west mercia safety ltd v dodd [1988] bclc 250 when a director ought to have realised that insolvency was ‘more likely than not’. the steering group have contemplated removing this and leaving an overriding duty to creditors only arising when a director ought to have realised that was ‘no reasonable chance of avoiding’ insolvency, the position under insolvency act 1986, s 214. the denning law journal 7 1. directors should consider both the long as well as the short term consequences of their actions, an exhortation against ‘short-termism’; and 2. directors should apply an appropriate standard of skill and care to their tasks, not just that of an educated layman.26 by emphasising these two, any statutory general duties will undoubtedly add to the bureaucracy of decision-taking in publicly quoted companies as paperwork is assembled to show that short and long term issues were carefully considered. the stakeholder issues listed in ‘other factors’ will no doubt add to this trend. one can imagine public company boards being flooded with special pleading from innumerable pressure groups. whether this will improve the quality of the decisions is harder to say. what can not be made to go away are the underlying conflicts of interest that directors have to deal with. as the steering group starkly put it: the interests of the shareholders and others will clash… [eg] a decision whether to close a plant with associated redundancies or to terminate a long-term supply relationship, when continuation in either case is expected to make a negative contribution to shareholder returns… in such circumstances, the law must indicate whether shareholder interests are to be regarded as overriding, or some other balance should be struck.27 however much the steering group may try to disguise it with warm words and phrases, it has firmly concluded that ‘shareholder interests are to be regarded as overriding’. so is the war over? i fear not. we have not seen any government bill to date and as the steering group found on a number of other reform issues, its freedom to propose sensible measures was constrained by european directives. the experience of the 13th company law directive shows how the best laid plans can be destroyed in the european legislative process. also, no doubt to keep those with stakeholder views like professor parkinson on board, the steering group 26 the old and possibly outdated test in re city equitable fire insurance ltd [1925] 1 ch 407; but see norman v theodore goddard [1991] bclc 1028, 1030; re d’jan of london ltd [1993] bcc 646, 648. 27 modern company law for a competitive economy: the strategic framework, para 5.1.15. the denning law journal 8 avoided any ringing endorsement of traditional shareholder value. its objections are dressed up as largely practical: a few still supported a ‘pluralist’ approach, imposing a duty to balance the interests of relevant parties without necessarily giving priority to those of members; but none of those responses suggested a practicable means of dealing with the crucial question of how such a duty could be enforced. this is to our mind a key objection.28 this is a terribly british approach, disguising political, even moral issues as matters of practicalities. indeed, by now you are probably wondering why i have been dragging you through this mire of company law technicalities, but behind them lurk fundamental issues of freedom, political legitimacy and the rule of law. so in the second half of this lecture i would like to take the opportunity to demonstrate to you that the stakeholder view of corporate governance is not just impractical, it is deeply immoral. 1. the stakeholder attack on the traditional shareholder value approach comes in two slightly different guises: 2. other interests are just as vulnerable as shareholders and deserve equal consideration; and directors of large public companies are just too powerful to be left only to consider their shareholders’ interests. the first argument starts from the point that shareholders are not in a unique position of risk. others, like suppliers and employees, have to make ‘firm specific investment’ and, unless it is protected, they will be discouraged from making such investment. bluntly, in a post-industrial society, this is nonsense. computerisation has made most firm specific supplying easy and cheap. to the extent that satisfactory arrangements can not be secured by contract, there always remains the option of bringing the function in-house.29 the position has changed just as much for employees. the rise of the skilled ‘knowledge worker’30 and the protection of employment law have made 28 modern company law for a competitive economy: completing the structure, para 3.5. 29 as coase pointed out in the 1930s, that is the principal justification for functions being brought within the structure of a firm; coase ‘the nature of the firm’ in williamson and winters (eds), the nature of the firm: origins, evolution and development (new york: oup, 1993). 30 drucker, post-capitalist society (new york: harper collins, 1993) (“drucker”). the denning law journal 9 employees, at least of well-financed public companies one of the most privileged contracting groups in society. as we have seen, that is why executive directors, who have employment contracts, get such wonderful pay-offs. employees are merely a heterogeneous private interest group, sufficient of whom may form an alliance with the directors against any other interests. privatisation was not about finding new management or cheaper capital. the old management often remained and a stable government can always raise capital cheaper than private firms. no, it was, and still is, about breaking the restrictive practices of management and employees by cutting off the tax guarantee behind the nationalised industries and their boards. i look forward to see what railtrack mark 2 gets in the way of backing from the treasury. at this point, defenders of the stakeholder view usually point to the japanese and german models which in their different ways incorporate employees into their governance structures. but that is only half the story. both have depended upon a highly protected banking system providing the discipline that shareholder dissatisfaction provides in the anglo-american model. in japan, it can now be seen that the banks failed to exercise that discipline with disastrous consequences and in germany, they are beginning to lose the power to do so. this hardly seems the moment to adopt such an approach even if we had developed the necessary banking arrangements to do so, which we have not. so why does forwarding employees’ interests at the expense of shareholders’ still instinctively seem so moral? there still lurks the impression that, compared to honest toiling employees, shareholders are lazy good-for-nothing rentiers. in fact, shareholders in uk publicly quoted companies are largely the pension funds of, not just the privileged knowledge workers, but also the less privileged ‘service workers’ throughout the economy. of course, it can be argued that things do not have to be arranged this way. whether pensions are funded or not, pensioners remain dependent for their income on current workers. the continental pay-as-you-go tax based system could be adopted. however: 1. public expenditure pressures have already undermined that system in the uk and are now doing so elsewhere; and 2. such a system would be dependent on taxing an aging uk population. returns on publicly quoted companies are by their nature global, incorporating returns from younger, more vibrant economies. could we, in any case, do without shareholders? after all, ordinary shares are only a funny form of loan, which offers no pre-determined right to any interest or capital back. they just have a claim to the residual surplus on winding up after everyone else has been paid, with dividends as discretionary payments on account. the only contractual weapon given to their holders is a degree of the denning law journal 10 residual control in the form of a vote, in particular a vote to change the directors. investment theorists, like modigliani and miller,31 would argue that it does not matter whether a company is financed by debt or shares since all they are doing is allocating the risks and returns of the underlying business of the company. the company is just an allocative vehicle. but the debt-equity structure does matter, because companies reliant on debt, have to pay interest and capital on time which increases the risk of bankruptcy, and this is not costless. management, from its own self-interest and from emotional ties to the company and its employees, is likely to try and avoid this risk.32 the management of companies dependent on debt finance is therefore likely to reject high-risk projects and, if most companies in an economy are dependent on debt, the whole economy can become riskaverse. it was the need to issue shares to finance highly speculative railways in the 19th century that was the impetus behind the creation of uk company law in the first place. no share capital is vital because in a fickle world, it is permanent, a feature that european companies, until now dependent on bank finance, are increasingly appreciating. as the financial times pointed out yesterday, the government still has this problem if railtrack mark 2 is to get any outside funding.33 this brings me the second argument for the stakeholder view, which starts from the sheer size of the largest multinational companies. these have turnovers greater than the gdps of some quite substantial countries. the directors of these companies are making investment decisions that affect thousands of employees, the communities that they come from, even the whole environment. governments seem helpless in the face of such organisations as they shift capital and profits around the world. classical economists’ maintain that corporate behaviour is no more than a reflection of the popular will, expressed not through the ballot box, but via individual purchase decisions. but that seems unrealistic in the face of corporate giants like shell, microsoft, nike or mcdonalds. those holding stakeholder views point to at least three ways that the market does not operate efficiently: 1. the size and power of the established players allow them to create barriers to entry for competitors, leaving them room for manoeuvre; 2. companies have an informational advantage, eg unjustifiable claims through advertising, public relations etc. 31 modigliani and miller, ‘the cost of capital, corporation finance and the theory of investment’ (1958) 48 american econ rev 261. 32 management may fear not just a loss of employment and reputation, but personal liability under west mercia safetywear v dodd or insolvency act 1986, s 214, see above. 33 financial times, 8th october 2001, lex column. the denning law journal 11 3. externalities can be exploited, eg companies can poach trained staff or damage the environment without being made to pay. let us take each in turn: 1. the electronic and communications revolution have given even the largest companies far less room for manoeuvre than even twenty years ago. look at the car industry. in europe each country was dominated by one or two local manufacturers. now in the uk and rapidly through the rest of europe, no company has more than 20% of the local market. companies also have to be responsive to the vagaries of these markets, mcdonalds on the meat it serves in india, shell on the disposal of rigs in northern europe. these organisations are not quite the monoliths they first appear to be. 2. although it is never possible to produce a level playing field in information, again the electronic and communications revolution have made things much easier for consumers. indeed consumer and other pressure groups have been major exploiters of the internet. governments can always help by demanding the publication of more information and that is one of the major recommendations of the uk company law steering group. 3. externalities are also a matter for governments to settle. for example, how can companies regulate themselves as to what land may be exploited for oil, superstores or housing. on the other hand it has to be recognised that increased regulation is often loved by major corporate players because it raises the barriers against competitors entering the market. for a passionate espousal of this view, look no further than the recent cruickshank reports on banking and their attack on the proposed new financial regulation.34 even for the largest multi-nationals, market forces are intense and can not easily be willed away. as one commentator has put it: “the business executive who chooses voluntarily to spend until it hurts on the environment, on training, the handicapped, or on support of higher education, is likely to find that he is vulnerable 34 competition and regulation in financial services: striking the right balance, hm treasury, july 1999; competition in uk banking: a report to the chancellor of the exchequer, stationery office, march 2000. the denning law journal 12 to undercutting by firms without a social conscience that, by avoiding such outlays, can supply outputs more cheaply”.35 even professor parkinson at the end of his magisterial apologia for the stakeholder view was forced to admit: “any changes designed to increase corporate social responsiveness that are liable to add significantly to companies’ costs cannot in an increasingly global marketplace be safely introduced in one country. whether the changes are in governance structures or are measures to stimulate responsibility, or are more stringent conventional regulatory controls, they will need to apply more widely if domestic economies are not to be disadvantaged in the face of international competition. in europe, this emphasises the importance of the social, in addition to the economic, dimension of european collaboration”.36 but just think for a moment what is being said there. that is a plea for the creation of a protectionist europe, with a tariff wall and exchange controls, aimed at allowing european companies to indulge in profit sacrificing social responsibility, just like the old comecon businesses in the communist bloc. all this may seem a bit far-fetched at the moment, but listen to recent outbursts from the current french prime minister, lionel jospin and think what pressures might build up if we were now to face a prolonged recession. i think the new applicants to the european union from eastern europe might be surprised to find themselves re-entering a protectionist club. of course it can be argued that the stakeholder view does not require such extreme measures to be taken, at least to start with. a modicum of profit sacrificing social responsibility would be quite sufficient. but even that gives rise to serious difficulties. to allow it would require either: 1. directors to be given the power to consider all the various interests, which would be a massive increase in directors’ discretionary power; or 2. directors are given the duty to consider such interests, which would be a massive increase in the courts’ discretionary powers. 35 baumol ‘(almost perfect competition (contestability) and business ethics’ in baumol and blackman (eds), perfect markets and easy virtue: business ethics and the invisible hand (cambridge, mass: blackwell, 1991), p 53. 36 parkinson p 433. the denning law journal 13 either way, political power and decision making would be transferred to nonpoliticians, in the words of the steering group, ‘turning company directors from business decision-makers into moral, political or economic arbiters’.37 can you imagine how dangerous and anti-democratic this could be? as has been put most forcibly by levitt: “what we have, then, is the frightening spectacle of a powerful economic functional group (ie management) whose future and perception are shaped in a tight materialistic context of money and things but which imposes its narrow ideas about a broad spectrum of unrelated non-economic subjects on the mass of man and society”.38 if you think that is an exaggeration, think of the baleful effect the involvement of businessmen has had on education in this country. and what sort of political legitimacy would this new ‘nomenclatura’ have? professor parkinson and others proposing the stakeholder view suggest that legitimacy could be achieved with new structural checks and balances; but the only stakeholders whom it is easy to incorporate into corporate governance are employees. parkinson himself admits that state appointees do not have a happy track record. political interference over decades has reduced our railways to a ludicrously crash-averse, investment starved wreck. who is going to stand up and point out to railtrack mark 2 that the railways can afford to lose dozens of passenger lives a year and still be the safest form of transport in the uk. as for other stakeholders, like suppliers and customers, they can hardly be incorporated for fear of creating multiple restrictive practices and conflicts of interest. this leaves the employees which brings us back to the dangers of incorporating their interests which i have already described. so what are we left with overall? the proponents of the stakeholder view claim that it offers a 3rd way, a form of communitarianism. directors would be required to temper the financial success of their companies with policies to protect employees, suppliers and their communities and to respond to the various demands of environmentalists. after all, even under the steering group’s formulation of directors’ duties, these are matters that directors should, where appropriate, consider. but with one important difference. directors would still have a clear overriding goal, shareholder value. as drucker has pointed out, having a single focus is vital for the success of an organisation: 37 modern company law for a competitive society: developing the framework para 2.21. 38 levitt, ‘the dangers of social responsibility’ in marshall (ed) business and government: the problem of power (lexington: heath, 1970) p 27. the denning law journal 14 organisations are special-purpose institutions. they are effective because they concentrate on one task. if you go to the american lung association and say: “ninety per cent of all adult americans… suffer from ingrown toenails; we need your expertise in research, health education and prevention to stamp out this dreadful scourge,” you’d get the answer: “we are interested only in what lies between the hips and the shoulders.” that explains why the american lung association or the american heart association or any other organisation in the health field gets results… only a clear, focused and common mission can hold the organisation together and enable it to produce results.39 communitarians find such single-purposedness uncomfortable. they dream of a quiet, orderly, dare i say static world, the sort of world described in the reverend awdry’s railway books. the isle of sodor exists somewhere off the coast in never-never-land, free from global forces technological change never threatens steam trains, farmers somehow survive keeping the odd cow or pig, the fat controller never faces difficult pricing or investment decisions, like scrapping thomas. there is never a mention of death or taxation. of course, in the real world, decisions on the provision and funding of public services, on employee security, protection of local communities, land use and other environmental issues can not be avoided. but they must be taken by democratically elected politicians. it is their job to present issues to the electorate and create a framework of laws and taxes within which companies then have to operate. they have got to stop trying to palm off these decision onto others and hide them away from democratic comeback. already it is too easy to use the european union under the treaty of rome and the courts under the european convention of human rights. politicians bemoan the declining turn out at elections, but what is the point of voting if the critical decisions seem to made elsewhere. this evening we have traveled a long way from questions of directors’ remuneration and the technical drafting of their duties. may i leave you, however, with a nightmare scenario of what might happen if the stakeholder view were to triumph. if the stakeholder view is adopted, boards of publicly quoted companies, confronted with a range of conflicting interests, will start to take profitsacrificing decisions to meet some of them. this and the concomitant lack of focus of their businesses will slowly render them less competitive internationally. businessmen will increasingly call for tariffs and/or subsidies to survive. this will put them into the hands of government which in return, will make random 39 drucker, p 53. the denning law journal 15 demands on their companies to support governmental pet projects. corporate well-being will become less a matter of successful competition within a framework of laws and more a competition for special privileges from government, privileges that, as railtrack and its shareholders discovered, can be withdrawn at any time. this is a competition for survival that medieval barons would have recognised, or indeed more recently, industrialists in nazi germany. this is not cosy communitarianism, it is corporate feudalism. the united kingdom took three centuries and at least one civil war dismantling such arrangements. the united states took a further two civil wars. i am not saying that corporate feudalism can never work. it has allowed a number of asian countries to catch up economically and it could be argued that britain reverted to it to survive two world wars. but it is hardly a credible approach for a leading peace-time economy and even if it were, the price in terms of personal and business freedom is, in my opinion, far too high. by now i need hardly declare my colours, but lest any of you remain in doubt. i am not a cultural relativist, nor do i believe that you can go round borrowing bits and pieces from other systems. i am a fanatical believer in western liberal democracy, particularly as practised in anglo-saxon countries – not because it promotes economic wealth, although i think it does, but because, with all its manifold imperfections, it promotes freedom and transparency. stakeholder views are for me an anathema. they break down a critical separation of powers, not the usual separation of executive, legislature and judiciary, which has never been clearly accepted in this country, but the much more vital one between government and business. if the great corporations can not be dealt with on a fair arms-length basis, what hope is there for us mere mortals? on the isle of sodor, we never get to know who controls the fat controller, but i pray that here on the mainland, it remains, however loosely, the shareholders. who controls the fat controller? alistair alcock( lord denning and judicial activism* the hon. justice michael kirby a.c. c.m.g. ** youthful heroes youth seeks out heroes: guides to show the way through life. when i was a student at the university of sydney in the early 1960s, i had two judicial heroes: sir owen dixon, chief justice of australia, and lord denning, master of the rolls.) the austere dixon could be seen at work if we slipped into the courtroom of the high court of australia when it sat in sydney as part of the continental circuit in which the justices then spent their days. i never saw dixon at the law school. he was a remote, reserved, even cadaverous looking man; but a great jurist. denning, on the other hand, was warm and avuncular, conversational and apparently even interested in students. in the early 1960s, when he was about the age i now am, he attended a dinner given in his honour by the sydney law students to mark his visit to australia. at my request he signed an enlarged photograph which i presented to him for his autograph. i had it framed and it • parts of this contribution draw upon a paper given by the author to a conference of the american bar association in hawaii in january, 1998 now published in 81 a.j.s. judicature 238 (1998) and, in an extended form, in (1998) 71 a.l.j. 599 . •• justice of the high court of australia. i lord denning was appointed master of the rolls on 19th april, 1962. for some australasian reviews of his life see: i. holloway, "lord denning: a life" book review (1994) 13 uni. tas. l. rev. 194; b. mcsherry, "some observations on the role of lord denning in the development of intemationallaw" (1984) 14 m.u.l.r. 721; a. grant, "lord denning: an appreciation" [1984] n.zl.j. 358; c.e.f. ricket, "lord denning sincere man and problematic judge" (1982) 10 n.zu.l. rev. 91; l. waller, "bold spirit" (1982) 56(8) law lnst. j. (vic.) 564; "denning's legal philosophy" [1982] n.zl.j. 236; lord denning's retirement (1982) 56 a.l.j. 443. 127 denning law journal has accompanied me on my journey since those days. from solicitor to barrister. from law reformer through the national industrial tribunal and the federal court of australia. from the presidency of the court of appeal of new south wales which, like denning, i regarded as a "mainspring of innovation,,2 to my chambers in the high court of australia where i am now writing this essay. if ever i was in doubt about the path of justice or almost faltered in a resolve to cure injustice when it was in my power to do so, i had only to look at denning's photograph to feel a renewed energy. my two heroes had different perceptions about the role of the judge. sir owen dixon propounded a rule of submission to the legislature's valid statutes and established legal authority. this fitted well the notion of parliamentary sovereignty. it coincided with the high measure of self-satisfaction that existed in the common law in the middle of this century: in the last indian summer of british global power. when he took the oath of chief justice of australia in 1952, dixon said, in words known to every australian law student of that era: "close adherence to legal reasoning is the only way to maintain the confidence of all parties in federal conflicts. it may be that the court is thought to be excessively legalistic. i should be sorry to think that it is anything else. there is no other safeguard to judicial decisions in great conflicts than a strict and complete legalism." 3 later, in an address to yale university in the united states in 1955, the year i finished high school, dixon accepted that judges developed the law. but he emphasised that judicial creativity operated within severe boundaries which imposed strict limitations: "it is one thing for a court to seek to extend the application of accepted principles to new cases or to reason from the more fundamental of settled legal principles to new conclusions or to decide that a category is not closed against unforeseen circumstances which might be subsumed thereunder. it is an entirely different thing for a judge, who is discontented with the 2 lord hailsham of st. marylebone, lord chancellor, valedictory speech on the retirement of the master of the rolls [1986] denning l. j. 8 at p. 9. 3 (1952) 85 c.l.r. xi at xiv. 128 lord denning and judicial activism result held to flow from a long accepted legal principle, deliberately to abandon the principle in the name of justice or of social necessity or of social convenience.,,4 this was the orthodoxy taught to law students on the other side of the world from that in which lord denning was at work in the court of appeal in london. imagine the surprise, then, in a generation of fresh australian acolytes, to pick up denning's opinions and to read there a clear counterpoint to sir owen dixon's words of restraint and caution. take for example the passage in candler v. crane, christmas and co.5 there, in a famous dissenting judgment in the court of appeal, denning, before he took the central seat, lamented the calamitous exception in the law of negligence which relieved many professional advisers from actions for damages for losses caused by a negligent, as distinct from fraudulent, misrepresentation: "this argument about the novelty of the action does not appeal to me in the least. it has been put forward in all the great cases which have been milestones of progress in our law. in each of these cases the judges were divided in opinion. on the one side there were timorous souls who were fearful of allowing a new cause of action. on the other side there were the bold spirits who were ready to allow it if justice so required. it was fortunate for the common law that the progressive view prevai1ed.,,6 prevail it ultimately did when denning's dissent of 1951 became the rule in england7 and was later adopted in other jurisdictions of the common law, including australia.8 4 o. dixon, "concerning the judicial method" (1956) 29 all. 468 at p.4n. see also kitto j. another great australian judge of the same tradition, in rootes v. shelton (1967) 116 c.l.r. 383 at 386-387 administering a rebuke to jacobs j.a. in rootes v. shelton (1966) 86 w.n. (n.s.w.) (pt.!) 101 at 102. cf clunies-ross v. the commonwealth (1984) 155 c.l.r. 193 at 204; 1. j. doyle, "judicial lawmaking is honesty the best policy?" (1995) 17 adel. l. rev. 161 at p.203; and f.g. brennan, "the parliament, the executive and the courts: roles and immunities" (1997) 9 bond l. rev. 136 at pp.139-140. 5 [1951] 2 k.b. 164. 6 ibid at p.178. 7hedley byrne and co. ltd. v. heller and partners ltd. [1964] a.c.465. 8 mutual life and citizens assurance co. v. evatt [1971] a.c. 793; (1970) 122 c.l.r. 628 (p.c.). 129 denning law journal there have always been in the law, as in life, dixons and dennings. the expositors of settled doctrine. the reformers who push doctrine forward: inventing new categories, reformulating concepts, extending the frontiers, advancing with an energy derived from the perceived needs of justice. different ages tend to produce, and to elevate to the ascendancy, judges whose inclinations are akin to those of dixon or those of denning. that is why we see, in an historical review of the history of the common law, periods of creativity and energy; often followed by longer periods of consolidation and complacency. lord hailsham of st. marylebone, lord chancellor at the time of lord denning's retirement, suggested that his arrival at the english court of appeal had coincided with the conclusion of a period of thirty-five years following which he said: "our lady of the common law awoke from her slumbers and entered upon a period of renewed creativity, generated no doubt by the vast social and legislative changes which have overtaken us, and inspired by a desire to do right to all manner of people without fear or favour, affection or ill-will in the changed circumstances of the post-war world.,,9 sometimes, a judge may begin a career on the bench evidencing strong resistance to judge-made law but later embrace perceived obligations of creativity and legal advance with astonishing enthusiasm.lo some judges have been known to preach one doctrine consistently; but when a matter most closely touches a fundamental issue of justice important to them, to practise another. in particular areas of the law (such as equity) refinement and elaboration of principles by the judges has never suffered from the "quaint common law fiction that the rules of equity had survived from time immemorial and that the judges merely find and declare the pre-existing law.,,11 it is 9 lord hailsham, supra n. 2 at p.8. 10 m.d. kirby, "a.f. mason from trigwell to teoh" (1997) 20 m.u.l.r. 1087. ] 1 a. f. mason, foreword to p. parkinson, the principles of equity (l.b.c. information services, 1996) at p.vi. see re hallett's estate (1878) 13 ch. d. 696. lister v. romford ice and cold storage co. ltd. [1957] a.c. 555 at 592 per lord radcliffe and wik peoples v. queensland (1996) 187 c.l.r. 1 at 179 per gummow j. cf garcia v. national australia bank limited (1998) 155 a.l.r. 614 at 626. 130 lord denning and judicial activism sometimes true that particular areas of the law are more susceptible to judicial revision and re-expression than others. commentators are sometimes critical of judicial attempts in the particular area of their own concern as if things they teach or have mastered should be left alone by impious hands. one commentator on lord denning's work in the area of equity and trusts has suggested that, although his impact had been considerable, his judgments had been less well received in that domain, say than in contract and tort.12 it was suggested that this was because equity and trusts deal with property law where it is usually desired to have "settled and clearly defined principles" in preference to "vague, flexible concepts." but in so many areas of public and private law, lord denning brought fresh insights and impatience with blind adherence to old formulations of the law where these appeared out of harmony with a sense of the just result of the particular case.13 when lord denning urged a new approach to statutory interpretation,14 he attracted the censure of the london times editorialist, in those days immovably orthodox: "what lord denning is trying to do is to import into the interpretation of statutory provisions the same degree of judicial creativity as is normally applied to developing the common law. the tradition of english law does not support that approach. it may be acceptable to 12 d. j. hayton's assessment of lord denning's work in the area of equity and trusts appears in j. l. jowell and j. p. w. b. mcauslan (eds.), lord denning the judge and the law, (sweet and maxwell, 1984), reviewed [1986] denning l. j. 129 at p.130. 13 lord denning identified as amongst his most important innovations in judge-made law his decisions on the scope of negligence in candler v. crane, christmas and co. supra n.5; the extension of the remedy of prerogative writs to errors of law in r. v. northumberland compensation appeal tribunal ex parte shaw [1952] 1 k.b. 338 and the provision of declaratory relief: barnard v. national dock labour board [1953] 2 q.b. 18; his decisions on exception clauses in contract: george mitchell ltd. v. finney lock seeds [1983] q.b. 284 and his revision of cases affecting the status of woman: bendall v. mcwhirter [1952] 2 q.b. 466 and rimmer v. rimmer [1953] 1 q.b. 63. he introduced the mareva injunction in the case of rasu maritima s.a. v. persahaan [1978] q.b. 644 (see also mareva compania naviera s.a. v. international bulkcarriers ltd. [1975] 2 lloyd's rep. 509). he also pushed forward the influence of international law upon english municipal law. see foreword [1986] denning l.j. at 1-3. 14 r. v. sheffield crown court ex parte brownlow [1980] q.b. 530 at 539. his approach on this topic is now accepted and applied in australia: see generally kingston v. keprose pty. ltd. (1987) 11 n.s.w.l.r. 404 at 423-424; approved by the high court in bropho v. western australia (1990) 171 c.l.r. 1. 131 denning law journal introduce a qualified element of equity into the harsh rules of statutory construction. [but] this would be under his formula for the majority of judges to determine a sensible result. that would be to usurp parliament's function and give judges a power which the vast majority of them neither seek nor are capable of exercising.,,15 it is interesting today to compare the restrained comment of the editorialist with the language of obsequy which is the common diet of lord denning's judicial success. judicial obedience of one point lord denning was always insistent. it was the central importance of the rule of law. he demanded that everyone, including public officials 16 and powerful unions i? comply with the law: "the law should be obeyed. even by the powerful. even by the trade unions. we sit here to carry out the law. to see that the law is obeyed. and that we will do. a subject cannot disregard the law with impunity. to every subject in this land, no matter how powerful, i would use thomas fuller's words over three hundred years ago 'be you ever so high, the law is above you.",18 every judge, be he ever so high, is also subject to the discipline of the law. it would be corrosive of the rule of law, and destructive of obedience to the law, if judges did not themselves conform to, and uphold, clearly settled rules of law. this was the complaint leveled against lord denning when in broome v. cassell and co. 19 he declined to follow the holding of the house of lords in rookes v. barnard20 to the effect that punitive and exemplary damages should be confined to certain restrictive categories of cases. lord denning gave four reasons for refusing to follow the principles laid down by the lords. these were that the common law on the subject had been so well settled before 1964 and 15 the times 3th march, 1980. 16 see generally d.g.t. williams, "lord denning and open government" [1986] denning l.j. 117. i7 gouriet v. union of post office workers [1977] 2 w.l.r. 310 reversed [1978] a.c. 435. 18 ibid at p.33!. 19 [1971] 2 q.b. 354. 20 [1964] a.c. 1129 at 1226-1227 per lord devlin. 132 lord denning and judicial activism that it was not open to the house of lords to overthrow it; that counsel who had appeared had not argued the point before the lords and indeed had accepted that the common law was as it was then understood; that contrary to what lord devlin had said in the house of lords there were two previous decisions of the lords approving awards of exemplary damages; and that the doctrine which had been propounded was "hopelessly illogical and inconsistent."zi not un surprisingly, the opinion provoked a severe lordly reproor,2z the lord chancellor recorded the suggestion by lord denning that the earlier opinion of the house of lords had been expressed per incuriam and even ultra vires and was unworkable and should not be followed. he said that the "propriety and desirability" of the course taken by the court of appeal was raised for comment by their lordships. and then, with "studied moderation," the lord chancellor went on: "if the court of appeal felt, as they were entitled to do, that in the light of the australian and other commonwealth decisions rookes v.barnard ought to be looked at again by the house of lords '" they were perfectly at liberty to say so. more, they could have suggested that so soon as a case at first instance arose in which the ratio decidendi of rookes v. barnard was unavoidably involved, the parties concerned might wish to make use of the so-called "leapfrogging" procedure now available to them .... moreover, it is necessary to say something of the direction to judges of first instance to ignore rookes v. barnard as 'unworkable' .... [i]n my view ... it is not open to the court of appeal to give gratuitous advice to judges of first instance to ignore decisions of the house of lords ... and if it were open to the court of appeal to do so it would be highly undesirable. the course taken would have put judges of first instance in an embarrassing position, as driving them to take sides in an unedifying dispute between the court of appeal ... and the house of lords. but, much worse than this litigants would not have known where they stood .... whatever the merits, chaos would have reigned until the dispute was settled, and in legal matters, some degree of certainty is at least as valuable a part of justice as perfection .... the 21 supra n.19 at p.381. 22 broome v. cassell [1972] a.c. 1027 (h.l.). see discussion in j. stone, "double count and double talk the end of exemplary damages" (1972) 46 a.l.l. 311. 133 denning law journal fact is, and i hope it will never be necessary to say so again, that, in the hierarchical system of courts which exist in this country, it is necessary for each lower tier, including the court of appeal, to accept loyally the decisions of the higher tiers. ,,23 it is not unusual in a hierarchical court system, for differences to arise about the state of judicial authority and the binding rule to which lower courts must submit themselves. when i was president of the new south wales court of appeal i was, from time to time, the subject of reversals delicately worded criticisms where it was thought that i had, without warrant, pushed the law beyond the limits of settled authority.24 in due course, in my new role, i may some day have opportunities to return to these cases. sometimes, intermediate courts, for their part, gently castigate those placed above them for failing to offer clear guidance on an important matter of practice25 or for failing to clarify the status of a legal rule thought to be overtaken by events and uncertain as to its binding force.26 but it is rare to see such a judicial exchange as appeared in the succeeding decisions in broome v. cassel. in the great theatre of english law, one suspects that the storm that brewed and then settled caused no ultimate offence. at the valedictory ceremony for lord denning's retirement ten years later, the same lord chancellor claimed with mock humility, that the court of appeal was "not quite infallible" and that "unless it becomes so, there will always be a humble purpose left for the 23 ibid at pp.l 053-1054. 24 see e.g. public service board of n.s. w. v. osmond (1986) 159 c.l.r. 656 at 662 (per gibbs c.l.) reversing osmond v. public service board of n.s. w. [1984] 3 n.s.w.l.r. 447 (the common law right to reasons from an administrator in which i followed lord denning m.r.'s dissenting judgment in breen v. amalgamated engineering union [1971] 2 q.b. 175 at 190-191). and lamb v. cotogno (1987) 164 clr. 1 affirming the majority in cotogno v. lamb {no.3} (1986) 5 n.s.w.l.r. 559 (the adaptation of the recoverability of exemplary damages in the context of a compulsory third party insurance statutory scheme). 25 see e.g. r. v. r. mck. fraser, (1998) 10 judicial officers' bulletin 56a in which it was . stated that no ratio decidendi could be discovered in the majority opinions of the high court of australia in gipp v. the queen (1998) 72 a.l.l.r. 1012 (concerning the admissibility of propensity evidence in trials of sexual offences). in such circumstances trial judges were advised to follow pre-existing authority. 26 see e.g. garcia v. national australia bank limited (1998) supra n.ll at 630-633 concerning the suggestion that the court of appeal (n.s.w.) had not conformed to the authority of the high court of australia in yerkey v. jones (1939) 63 c.l.r. 649 cf barclays bankplc v. o'brien [1994] 1 a.c. 180 at 194-195 which rejected yerkey. 134 lord denning and judicial activism appellate committee of the house of lords.'.27 some people thought that denning made a mistake in responding to lord kilmuir's request that he go back from the house of lords to be master of the rolls. but denning did not agree. he explained that he would "much rather be in the place where i've got some influence on the development of the law.',28 influence is one thing. denning wielded it with the assurance of a "supremely able person.',29 but defiance of, and disobedience to, clear legal authority is impermissible to anyone. least of all does it become a judge who is a servant of the law. this said, there remains in many cases a large zone of decision-making in which judges must make choices. few today, at least within the judiciary and the legal profession, contradict this proposition?o the concept of the judge as a kind of jumbo-jet captain, always flying on automatic pilot, might be acceptable to some old-fashioned citizens and media commentators who prefer not to know the unsettling realities. but in this century, the myth of the automatic pilot was shattered most vividly by the creative example of lord denning. the ghost was finally laid to rest by that other great judge of denning's time, lord reid, who declared that the notion that a judge merely declared the law was a "fairy tale" not to be seriously entertained by knowledgeable people.3l written constitutions are specially ambiguous. statutes are often obscure. in a time of rapid social and technological change, old common law precedents are sometimes silent or not really applicable to the legal problem in hand. resolving the ambiguities, repairing the obscurities and filling the gaps, judges inescapably have a creative role. the perception of opportunities for creativity, and the enthusiasm for the task, may differ between a denning and a dixon. but neither could ultimately escape such obligations. they are bound up in the very function of a judge in a common law system. the legitimate debate concerns the candour with which such choices should be acknowledged, the forensic tools which should be provided to help in their resolution and the occasions in which the judge should act or hold back and leave legal development to the elected parliament. 27 supra n.2. 28 lord denning, "this is my life" [1986] denning l.j. 17 at p.26. 29 lord justice kerr, interview with hugo young, talking law, b.b.c., 16th september, 1979.12. 30 see e.g. m. h. mchugh, "the lawmaking function of the judicial process" (1988) 62 a.l.l 15 at p.1l6. 31 lord reid, "the judge as lawmaker" (1972) 12 l.s.p.t.l. 22. 135 http://www.ingentaconnect.com/content/external-references?article=0269-1922(1986)0l.17[aid=7390992] denning law journal judicial "activism" today since lord denning's long years of service as a judge of first instance, as a member of the house of lords and as master of the rolls, the public debates concerning the role of the judiciary acting as lord denning clearly did, have become more intemperate and much more angry. in several countries, the issue has become one of active political and partisan debate. let me review some of the developments in the past year or two which the judicial successors to dixon and denning in several countries, have had to face in the discharge of their judicial duties. united kingdom in the united kingdom, from whose judiciary common law countries ultimately derive their model, the deference paid to judges has clearly declined since lord denning served amongst them. the present lord chancellor, then in political opposition, called attention, in a speech in the house of lords in june,1996, to "unprecedented antagonism" occasioned by what he described as "a major clash over the distinct roles of parliament, ministers and the judges.,,32 he condemned "judicial invasion of the legislature's turf.,,33 he called the judges of the united kingdom back to a. v. dicey's submission to the absolute supremacy of parliament. the media of britain fell upon the differences which emerged between the last british government and the senior judiciary, taking "delight in both highlighting and, one suspects, fuelling the split between judiciary and government.,,34 the beaverbrook press claimed that there was a "sickness sweeping through the senior judiciary galloping arrogance.,,35 with just a little hubris, the editorialist declared that "[w ]hile european human rights judges, some from countries which once sent political prisoners to siberia, are venting their spleen on britain, legal weevils here at home are practising their own brand of mischief. ,,36the rothennere press joined in with comments that seem 32 lordirvineof lairg,h.l.deb. vol. 572 col. 1254(5th june, 1996). 33 ibid at co1.l255. 34 r.stevens,"judges,politics,politiciansand the confusingrole of the judiciary"in k. hawkins(ed.) the human face of law, (clarendonpress, 1997),at p.264. 35 the daily express, 4th november,1995,cited stevens,ibid. 36 the sunday express, 1st october,1995. 136 lord denning and judicial activism astonishing to lawyers of the united states and australia, brought up in the tradition of constitutional judicial review: "now it seems that any judge can take it on himself to overrule a minister, even though parliament might approve of the minister's action. this is to arrogate power to themselves in a manner that makes a mockery of parliament. ... the judges are giving the impression that they are acting on a political agenda of their own." 37 the times, once apparently a bastion of the establishment in britain, under new management, demanded that a new chief justice be appointed for england who could "steer his profession away from the sound of gunfire.,,38 the more courageous and articulate members of the english judiciary, such as sir stephen sedley, answer back. they remind those who have forgotten about the perils of supine judges. they call in aid sir edward coke's assertion of the sovereignty of the courts in the face ofthe crown's prerogatives.39 they caution against mob rule. increasingly, they draw on the experience ofthe united states for the refurbishment of the constitutional institutions of britain.4o sometimes their leaders rise in the house of lords, as lord denning did in retirement from time to time, to defend the judiciary from attack and to espouse its causes.41 because of our conception of the separation of powers, such a facility is unavailable to judges in the united states and australia. the forums available to us are rather more limited. new zealand in new zealand too, in recent times, the deference of the past has also taken a battering. judges have been castigated ferociously for bail decisions which went wrong. they have been prosecuted for false travel claims. they have been 37 the daily mail, 2nd november, 1995. 38 the times, 4th may, 1996. 39 sir stephen sedley, "human rights: a 21st century agenda" in r. blackburn and j. j. busuttil et al, human rights for the 21st century, (pinter,1996), at p.l. cf lord ackner, "the erosion of judicial independence" [1996] n.l.j. 1289. 40 lord steyn, "the weakest and least dangerous department of government" [1997] p.l. 84. 41 a recent example is lord bingham l.c.j., h.l. deb. vol.582 col.l245 (3rd november, 1997). 137 denning law journal attacked for failing to respond to media criticism. the chief justice of new zealand, in a public speech, cautioned against: "the increasingly strident cries of the well heeled sector of the community, pressuring government and the judiciary as to the particular brand of justice they seek, are not a pretty sight either, nor are the supportive noises made by acolytes in the profession." 42 he was denounced in the new zealand law journal, of all places, for getting into politics, damaging the independence of the judiciary and insulting the legal profession. australia the debates in britain and new zealand seem positively genteel by comparison to those which have engaged the australian judiciary in the past year or so. the problem is a general one. but it came to the fore after the high court of australia decided, in december, 1996, that native title to land of the indigenous peoples of australia was not, as a matter of law, necessarily extinguished by the pastoral leases granted by the crown and under statute over vast areas of the australian continent, beginning in the 19th century.43 the decision was by a majority of four to three of the justices of the seven member high court.44 as a result, politicians in both federal and state parliaments appeared to compete with each other in attacking the court, and especially the majority judges. few demonstrated familiarity with what the judges had actually written. a senior federal minister singled my reasons out for special castigation, declaring that he was "underwhelmed" by them. a state premier described them as nothing more than "rantings and ravings." the attacks, the like of which we have never seen before in australia, continued for months. the federal attorney-general stated that he did not agree with the convention that the attorney-general should defend the courts from criticism. 42 sir thomas eichelbaum cited in "judges and politics" [1996] n.2.l.j. 361 at p.361. see also editorial, "dismissal of judges" [1997] n.2.l.j. 333. 43 the wik peoples v. queensland supra n.ll. see also mabo v. queensland {no. 2j (1992) 175 c.l.r. 1. 44 toohey, gaudron, gummow and kirby n.; brennan c.j., dawson and mchugh n. dissenting. 138 lord denning and judicial activism courts must, he declared, find ways of defending themselves.45 for this, he, in turn, was criticised by judges and retired judges.46 the politicians maintained their attack. some do to this day; although the storm appears to have abated somewhat. the derogatory comments of politicians soon became the spring-board for academic and media castigation. high court decisions, the court and the justices were labelled "bogus," "pusillanimous and evasive," guilty of "plunging australia into the abyss," a "pathetic ... self-appointed [group of] kings and queens," a group of "basket-weavers," "gripped ... in a mania for progressivism," purveyors of "intellectual dishonesty," unaware of "its place," "adventurous," needing a "good behaviour bond," needing, on the contrary, a sentence to "life on the streets," an "unfaithful servant of the constitution," "undermining democracy," a body "packed with feral judges," "a professional labor carte1." there were many more epithets of a like character, many even more unkind. these attacks eventually called forth defences of the high court of australia from judges and retired judges, the organised legal profession, leading members of the bar, a former governor-general, legal academics, a few members in parliament, selected editorialists and even a law student. one professor warned of the consequences of such a prolonged confrontation between executive government and the judiciary in australia. he did so on the basis of the experiences of the land of his birth, malaysia, when, in 1988, the highest judge was driven from office when he fell out of political favour.47 in an unusual move, the then chief justice of australia wrote a private letter to the acting prime minister to correct the erroneous suggestion, made publicly, that the court had deliberately delayed its decision in the pastoral leases case. promptly, this letter was secured by journalists (presumably knowledge of its existence was leaked in parliament) under the freedom of information act. it was given widespread publicity.48 later, at a series of legal conferences in 45 d. williams, "judicial independence and the high court" (1998) 27 u. w.a. l. rev. 140 at p.150. 46 see for example sir gerard brennan, "state of the australian judicature" (1998) 72 all. 33 at p. 41. 47 professor hoong phun lee, "why we must protect the protectors" sydney morning herald, 13th june, 1997 at 17. 48 noted in a. ramsay, "high court gets short shrift" sydney morning herald, 8th march, 1997 at 43. 139 denning law journal australia49 and overseas,50 the chief justice spoke of the dangers of such sustained attacks on the judiciary. in october 1997 chief justice gleeson, since then succeeding to the office of chief justice of australia but then chief justice of new south wales called for a truce and for mutual respect between the f 51branches a government. the feature of the australian debate which has concerned many judges and lawyers has been the shift from the bipartisan political acceptance of constitutional and other decisions of the high court which had marked australia's history in the past, even when those decisions were extremely important and highly controversial. there is also a concern that such an unrelenting barrage of criticism and denigration would, if unabated, undermine the community's confidence in the courts and acceptance of court decisions. editorialists might declare that "robust legal debate [is] good for [the] country."s2 but a lot of judges and lawyers, unused to such unrelenting assaults, had their doubts. united states of america the prize for the worst examples in a developed country in this genre of political attack on the judiciary labelled "activist" must go to the united states of america. of particular concern to outsiders (and doubtless to citizens as well) has been the appearance of federal political leaders, looking around for themes for their electoral campaigns, selecting the easy targets of the judiciary as a means of promoting themselves as "tough" on law and order issues. 53 senator robert dole's call for the impeachment of judge harold baer of the united states district court, following a much publicised ruling in a criminal trial,s4 and his consignment of united states appeals judge rosemary barkett to his 'judicial hall of shame"ss did not work well as an electoral theme once it 49 sir gerard brennan, supra. n.46; cf chief justice brennan, address to the twelfth south pacific judicial conference, noted australian, 15th april, 1997 at 3; sydney morning herald 15th april 1997 at 3. 50 address in dublin, 23rd april, 1997 at 7. 51 a.m. gleeson, "who do judges think they are?" (1998) 22 criminal law journal 10. 52 weekend australian, 15-16th february, 1997 at 22. 53 s. b. bright, "political attacks on the judiciary" 80 judicature 165 (1997). see also p.i. white, "an america without judicial independence" 80 judicature 174 (1997). 54 bright, ibid at p.166. 55 ibid at p.169. 140 lord denning and judicial activism was pointed out that the good senator had voted to confirm 97 per cent of president clinton's judicial nominees. however, the gravest attacks in the united states have been made by state politicians seeking to sanction judges for decisions in criminal, and particularly death penalty, cases which tend to engender the strongest public passions. the governor of tennessee (mr. don sundquist), after effectively securing the removal of justice penny white from the supreme court of that state, by electoral recall, declared that judges should be looking over their shoulders to see whether the same would happen to them.s6 this assertion drew the retort of justice john paul stevens of the united states supreme court, speaking at the 1996 annual meeting of the american bar association. "it was never contemplated that the individual who has to protect our individual rights would have to consider what decision would produce the most votes." 57 there have been a number of cases in other states of the united states. they include the removal of chief justice rose bird and two other justices of the supreme court of california, and justice james robertson who was voted off the mississippi supreme court in 1992.58 the action of judge baer, in changing his ruling, after the heat of much political pressure was applied, may have been unconnected with that pressure. but it certainly did not look good.59 fundamental human rights defend the right of every person in a cause affecting them to be heard by an independent, neutral and unbiased judge. the declaration of independence of the united states lists amongst the grievances against king george iii that "he has made judges dependant on his will alone, for the tenure of their offices .... ,,60 constitutional decisions uphold the promise of judicial independence.61 it is also guaranteed in international law by the international covenant on civil and political rights.62 however, political 56 ibid at p.166. 57 ibid at p.169. 58 ibid at p.170. 59 ibid at p.i72. 60 noted ibid at p.i72. 61 in the united states see chambers v. florida, 309 u.s. 227 (1940) per black 1.. see also american bar association, an independent judiciary, 1997 at 9-12. 62 international covenant on civil and political rights, art. 14.1 "all persons shall be equal before courts and tribunals. in the determination of any criminal charge against him or of his 141 denning law journal pressure, applied with a fair measure of brutality, to secure particular results from sitting judges and to prevent the appointment of persons labelled "acti vist," undermines the principle of independent, neutral and impartial justice according to law. it is no more to be tolerated where the brutality is verbal than where it is physical. one of the features of the united states attacks on the judiciary is the complete misrepresentation of judicial opinions and serious over-simplification of very complex issues.63 another is the report of elected judges in the united states running for office or re-election on the boast that they are "too tough on criminals.,,64 "activism" has become a bogey-word for judges. in the current political climate, anyone so labelled will probably not get nominated, appointed or elected and, if the power exists, may get recalled or removed. the detail about controversial cases tends to elude headstrong politicians on the campaign trail. a particular concern is the failure of leading political officer-holders in several countries to speak up, as formerly they did, to defend judicial independence. a united states commentator observed: "... [t]hose in the democratic party should have taken president clinton a former constitutional law professor to task for the suggestion that he might call for baer's resignation because he disagreed with baer's decision.,,65 for anyone wanting to read the catalogue of united states equivalents to the list of verbal denigration recently hurled at the australian judiciary, a good starting point is the article by judge joseph w. bellacosa of the new york state court of appeals.66 "screwballs,,67 is one of the kindest of the epithets. judge bellacosa concludes: rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law." cf liteky v. united states 510 u.s. 540 at 555; 114 s. ct. 1147 at 1157 (1994). 63 bright, supra n.53 at p.173. 64 the advertisement is reproduced in s. b. bright, "political attacks on the judiciary: can justice be done amid efforts to intimidate and remove judges from office for unpopular decisions?" (1997) 72 n.y. uni. l. rev. 308 at p.323. 65 ibid. 66 j .w. bellacosa, "remarks judging cases v. courting public opinion" 65 fordham l.rev. 2381 (1997). 67 ibid at p.2385. 142 lord denning and judicial activism "judges can take criticism, i am very confident, but whether the public interest can stand and absorb mal-informed, drum-beaten and heated attacks on the judicial process is worth pause and reflection." 68 conclusions what a contrast is seen in the laurels which lord denning gathered at the end of his judicial service. few judges of the common law world have retired from office with more honours, and more genuine affection, than he enjoyed. moreover, by the time of his retirement, he had become a hero, especially to young lawyers throughout the commonwealth of nations, far from his courtroom on the strand in london. true, there were always critics. true also, some of his ventures into judicial law reform were disapproved of by the commentators.69 occasionally they were slapped down by the house of lords, as happened in rookes v. barnard.70 but how do we explain the different response to his work and the altered climate of today which i have described above? the affection can perhaps be attributed to his extremely long service, his willingness to travel far and wide and to talk to audiences of scholars and students. his inimitable prose style, the like of which has rarely, if ever, been seen in the law reports also played a part. but the admiration sprang from his self-evident dedication to the cause of justice as he saw it, and to the extremely skilful techniques of lawyering which he brought to bear on the development of the common law and in the construction of ambiguous statutes so as to achieve results which to many, as to him, seemed manifestly necessary and just in the circumstances. he nailed his banner to the mast of legal reform. he gathered behind him, i would suggest, a majority of the lawyers of his generation and many citizens as well: "what is the argument on the other side? on this, that no case has been found in which it has ever been done before. that argument does not appeal to me in the least. if we never do anything that has not been done before, we shall never get anywhere. the law will 68 ibid at p.2388. 69 see e.g. d. j. hayton's comments in jowell and mcauslan, supra n.12. 70 [1964] a.c. 1129. 143 denning law journal stand still while the rest of the world goes on; and that would be bad for both.,,7l even where denning was rebuked by the house of lords ironically for standing out against an attempted "reform" by their lordships of the principles governing punitive and exemplary damages his instincts coincided with the feelings of judges in australia, canada and new zealand who were likewise unconvinced by the attempted reform. although some of denning's views on personal and sexual morality have undoubtedly been overtaken by social events and more enlightened times 72and although his references to foreigners in his opinions sometimes displayed a kind of old-fashioned english xenophobia,73 his capacity to adjust quickly to new social and legislative conditions, and his willingness to be innovative in so many fields of law, attracted not general calumny (of the kind that i have illustrated from recent judicial experience in many jurisdictions) but appreciation, understanding and praise. even the critics, and over the years there were many within the judiciary and legal profession, seemed to accept the need for an occasional vigorous shakeup of legal principles of the kind which lord denning regularly administered. the personal vituperation, threatening language and politicisation of targeted and personal attacks on judges as "activists" was almost wholly missing. yet if ever there was a judicial "activist," it was lord denning. he would not have denied it. he would have been proud of the appellation. he would have said that it put him in the ranks of great common law judges of the past such as lord mansfield in england, john marshall in the united states and justices isaacs, evatt and murphy in australia.74 for denning, creativity was part of the genius of the common law. where else did the principles of the common law come from except the creative minds 71 packer v. packer [1954] p. 15 at 22 per denning l.j. 72 cf ward v. bradford corporation [1972] 70 l.g.r. 27. for comment see m.d. kirby, "lord denning: an antipodean appreciation" [1986] denning l. j. 102 at p.llo. 73 see e.g. drain v. evangelou [1978] 2 all e.r. 437 at 439; mccall v. abelesz [1976] q.b. 585 at 591; de falco v. crawley council [1980] q.b. 460 at 472 and comment [1986] denning l. j. at 134. 74 there have always been outspoken proponents of judicial restraint. in the united states, felix frankfurter in his later years especially, was foremost in the criticism of excessive judicial invention. ["if judges want to be preachers, they should dedicate themselves to the pulpit; if judges want to be primary shapers of policy, the legislature is their place"; f. frankfurter, "john marshall and the judicial function" in a.e. sutherland (ed.) government under law (harvard university press, 1956) at p. 31]. 144 lord denning and judicial activism of the judges of the past searching the casebooks for just solutions to new problems? why, he constantly asked himself, was there a demand that, in this age, the element of creativity and development of legal principle should be dropped? the suggestion that this was so out of deference to an elected parliament scarcely carried conviction for him. all too often, parliament ignored the multifarious needs of law reform: its eyes fixed on the large political debates and the battles for office. yet the pressures of change and the needs for reform were greater at this time than ever because of changing social, technological and governmental developments. there have always been criticisms of judges and their decisions, as even the record of lord denning's life illustrates. some criticisms are justified. some complaints can now be directed into new channels by which, in many jurisdictions, complaints against judges can now be formally ventilated.75 but the stridency and political character of recent attacks on the judiciary of the common law suggests an urgent need to explain to politicians, to the media and to citizens alike what judges do and how the common law system actually operates. we need a modem denning with great experience and skills of communication, to rise above the chorus of publicised opprobrium. and to explain that the element of creativity, properly harnessed and well directed, is not a weakness of the common law system. it is a mighty strength. it helps to explain the survival of the common law as one of the greatest of the legacies of the british empire. it helps to avoid stamping, unquestioned, on one generation, the morality, attitudes and social rules of the distant past. lord denning, as a leading judge, would have spoken up himself, as he always did with good humour to answer selected critics. as a court leader he would have encouraged a more effective response from the courts to communicate their decisions to the public and to explain their techniques and the necessities of occasional judicial creativity. he would have urged the bar and other members of the legal profession to take a lead in responding to unmerited attacks on the judiciary who, as he once pointed out, are generally not well placed to answer back. he would have called for mutual respect between the branches of government as each branch performs the functions proper to itself. he would have encouraged 75 see e.g. judicial officers act 1986 (n.s.w.) which establishes a conduct division to receive, investigate and determine certain complaints against judicial officers in new south wales. 145 denning law journal a return to the education of the citizenry in civics so that they would understand their national constitution and the vital role of the judges in its scheme. the judges of today who follow as lineal descendants in the common law judiciary, can take strength from the fortitude of lord denning, his good humour in the face of criticism and lordly rebukes, his faithful adherence to principles of free speech76 and his unapologetic dedication to refurbishing the common law, as his great predecessors had done before him. when, like lord denning, one has a perspective of a century, the gales of abuse are seen for what they are. passing things. the storms come and go. the judicial institution goes on. the judges continue to make their decisions with obedience to statutory law as they construe it and faithful reliance upon legal authority as they define it but with the stimulation of legal principle and legal policy where that is needed to avoid plain injustice and to reverse a wrong turning.77 lord denning weathered the storms of his time when he was occasionally criticised for activism. our societies have continued to change. his example is unchanging. he remains a great encouragement to us to remember the basic character of our calling. we, his successors throughout the world, are not mechanics of the law. we are.a profession sworn to justice. that is what gives the law its claim to moral nobility. this remains denning's great instruction to us. even when the din of attack, the superficial political labels and the pressure of criticism become most vocal (perhaps especially then) the independent judges of the common law must remain steadfast and self-confident in their vocation. the times have changed significantly since denning served as ajudge. it is given to few to serve as long or as brilliantly. but every judicial officer of the common law, high and low, is reminded by denning's life and work that creativity is part of the genius of our vocation. we must explain this to each succeeding generation of lawyers, as denning, by his example and ceaseless efforts, tried to do. we must seek to explain it to citizens beyond the courtroom so that, like denning, they honour and cherish the common law. we must remember it for ourselves 76 a. t. denning, freedom under the law (hamlyn lectures, stevens & co., 1949), williams, supra n.16 at p.119. 77 oceanic sun line special shipping co. inc. v. fay (1988) 165 c.l.r. 197 at 252; cf northern territory v. mengel (1995) 185 c.l.r. 307 at 347. 146 address at the service of thanksgiving for *the rt. hon. lord denning, o.m. **the rt.hon. lord bingham of corn hill lord denning is the best known-known and best-loved judge in the whole of our history. there have over the centuries been judges of strong character, powerful intellect, great learning, courage, wisdom, compassion, eloquence, robust commonsense. all these qualities lord penning had in abundance. but he had something more: a unique gift of human warmth which endeared him to everyone who knew him and many who did not. . the story of lord denning's upbringing in whitchurch, with his parents, his sister and his four brothers, has been so vividly and movingly told by him that it is familiar to us all. but one thing in particular is striking. throughout his long life he remained unfailingly true to the values, beliefs, habits and tastes of his early years. he was a devoted member of the anglican church, loving its worship, liturgy and language. he answered to an unbending sense of duty. he had an indefatigable capacity and inexhaustible relish for hard work. he had a love of his country both deep and proud. he had a passionate love of the english countryside, particularly the chalk uplands of north hampshire and the magical valley of the test. he felt an instinctive respect for the continuity of our institutions and traditions and for authority, if not always for the authorities. he practised the virtues of thrift, sobriety and plain living. he had an unaffected simplicity of speech and bearing. he believed, profoundly, in the brotherhood of man and the worth of individual human beings. he was contemptuous of the "fugitive, the trivial and the mean." the late victorian principles by which he governed his life are unfashionable today; and it is not surprising that his lifelong adherence to them should have given ammunition to his critics in a later and more permissive age . • westminster abbey, thursday, 17th june, 1999. •• then, the lord chief justice of england & wales, presently the senior law lord of appeal in ordinary. the denning law journal this is not the place and this is not the occasion to attempt any assessment of lord denning's legal legacy. but nor, i think, would he wish us to ignore the great work to which, during his now unrepeatable thirty-eight year tenure of high judicial office, he devoted his life. there was little in the law which over that time he did not touch; and little that he touched which he did not adorn. in the vast body of cases which he decided, two chords in particular are dominant. the first is fairness, a tenn which cannot (i believe) be accurately translated into any other language: fairness in the treatment of the citizen by the state, ofthe litigant by the judge, of the applicant by the tribunal, of the consumer by the supplier, of the tenant by the landlord, of the customer by the bank, of the deserted wife by her husband, of the member by the trade union or the profession, of the patient by the hospital and the doctor, of the pm1y injured by a careless statement or act by the author of the injury. the second chord is freedom: freedom of the press; freedom of the person; freedom of mind and conscience; freedom from executive interference; freedom under the law. if wrapped in legal jargon, with an occasional dash of latin, all these things may sound technical and abstruse and remote from the humdrum realities of everyday life. but in his mouth they never did. lord denning's judgments were rooted not in discussion of abstract jurisprudential principle but in the vivid experience of recognisable men and women. it was this human dimension, coupled with a distinctive literary style, which gave his judgments their unmistakable and very personal quality. we all have our favourites. i cannot forbear to quote four of his: "old peter beswick was a coal merchant in eccles, lancashire. he had no business premises. all he had was a lorry, scales and weights ... " "it happened on 19 april 1964. it was bluebell time in kent. mr and mrs hinz had been married some ten years, and they had four children, all aged 9 and under. the youngest was one. mrs hinz was a remarkable woman ..... " "broadchalke is one of the most pleasing villages in england. old herbert bundy, the defendant, was a farmer there. his home was at yew tree farm. it went back for three hundred years. his family had been there for generations. it was his only asset. but he did a very foolish thing. he mortgaged it to the bank. up to the very hilt ... " 2 memorial address "to some this may appear to be a very small matter, but to mr harry hook it is very important. he is a street trader in the bamsley market. he has been trading there for some six years without any complaint being made against him; but nevertheless; he has now been banned from trading in the market for life. all because of a trifling incident ... " the peculiar genius of lord denning was perfectly matched to the need of the hour. "when tom and i were young," wrote lord devlin, "the law was stagnant." in lord hailsham' s words, "it seemed almost as if our lady of the common law had gone into a decline ..... " the age of creation appeared to have gone. that of literalists, slavish adherents of precedent and quietist acceptors of the status quo appeared to have succeeded; and the glory of the common law appeared to have been extinguished forever. that the law was aroused from its torpor was not, of course, the work of one court or one judge. the credit must be much more widely shared. but in any roll of the great emancipators lord denning would be assured of an honoured place, probably at the head of the list. for he brought a new, adventurous and imaginative vision to bear. he was more concerned with the intention of a statute than with its precise terminology. he was not overly respectful of precedent. he was prepared to entertain unorthodox arguments if they appeared to lead to what he saw as justice. he did not shrink from novelty. "what is the argument on the other side?" he asked in one case, and answered: "only this, that no case has been found in which it has been done before. that argument does not appeal to me in the least. if we never do anything which has not been done before, we shall never get anywhere. the law will stand still while the rest of the world goes on: and that will be bad for both." the secret of his attraction to the legal profession and to the general public was, as lord devlin suggested, the belief that he opened the door to the law above the law. he had, to the end, an almost uncanny insight into the thoughts and values of his fellow-countrymen. to the advocate he was the perfect judge: courteous, unintimidating, openminded, very quick, self-deprecating, devoid of pomposity. he seemed genuinely interested in every case, however, arid; he was warm and encouraging to counsel, particularly the untried. under his benign but exacting inquiry all 3 the denning law journal advocates gave of their best. unlike some other judges, he could demolish an argument he judged to be false without needlessly humiliating its author. and for all his interest and patience he was never indecisive; there was never any doubt about who had won. his longevity could on occasion be a problem. r recall one case in which my argument depended heavily on an observation of viscount simon, speaking for a unanimous seven-member house of lords in 1942. i warmed to my theme. but the master of the rolls interrupted. "oh," he said, "but lord simon was very sorry he ever said that. he told me so," but sometimes his encyclopaedic knowledge of the cases, or his vivid imagination, would come to the aid of an advocate cowering under the assault of his opponent or of lord denning's judicial colleagues. like all great judges he was of course, on occasion, inconsistent and unpredictable. all depended on his, sometimes very personal, perception of where the merits lay and what justice required. but that made the hearing all the more absorbing. no wonder the bar loved him. no wonder that his colleagues embarked on so many hazardous journeys under his leadership. no wonder that his exchanges with litigants representing themselves, conducted on his side in his broadest hampshire burr, were the stuff of legend. no wonder that he inspired such loyalty among those who worked for him. for five days a week, over a continuous period of more than twenty years, lord denning presided in the master of the rolls' court, giving the first judgment in every single case, usually as soon as the argument had ended. it was an intellectual, and also a physical, achievement which will never be rivalled. his energy, his interest and his appetite were unflagging. if the beleaguered advocate were tempted to inquire, at 4 o'clock on a friday afternoon, whether the court might think it a convenient moment to rise, he would be disappointed. i have so far said nothing of the private man. his devotion to the memory of his first wife mary, who died so tragically and so young, is a matter of record. he was a very proud and very affectionate father of robert, who followed in his footsteps with great distinction to magdalen college, oxford, and a great patriarch of his extended family. his attachment to his second wife joan is perhaps best expressed in a letter written on her death after nearly forty-seven years of married life: "i feel it is really an occasion for thankfulness for a long and happy life but for me it is all sadness at the loss of her so dear to me." 4 memorial address it would scarcely be possible to list the bodies to which, over the years, he gave his loyalty and lent his energetic support. they would certainly include magdalen college, oxford, birkbeck college, london and the university of buckingham; the inns of court, particularly lincoln's inn, his parent inn, and the law society; the lawyers' christian fellowship; the cheshire homes, cumberland lodge and outpost emmaus; the magna carta trust, the public record office, the historical manuscripts commission; the magistrates' association; the british institute of international and comparative law; the english association; the national association of parish councils; the national marriage guidance council; the draper's company; queen elizabeth college, greenwich; the city of london. but he still found time to arbitrate about sugar cane in fiji and bananas in jamaica. he still accepted the prime minister's invitation to report on the profumo affair, a task accomplished between june and september of 1963; many years later he presided at a dinner in lincoln's inn to celebrate the outstanding service ofmr profumo, to toynbee hall, an event which testifies to the stature of both men. at an age when most men look for leisure, lord denning turned author, publishing books in each of his last four years in office, books valued by those who have them not only for their contents but also for their very personal dedications. and throughout his term as master of the rolls he travelled the world, tirelessly and repeatedly, giving lectures and addresses, receiving honorary degrees, making friends and establishing a rapport with the young of five continents which few men of any age have ever enjoyed. to those who expect judges to be cold, formal, bloodless and pedantic he was a revelation. the respect and affection' he inspired, particularly in the countries of the commonwealth, was indeed extraordinary: i recall meeting a guyanese advocate who practised from denning chambers in georgetown and who had christened his eldest son alfred thompson. last year saw the opening of denning house in calgary, alberta. many other examples could be given, in this country and around the world. for all these services alone, her majesty's appointment to the order of merit, unique for a professional judge, would have been well-earned recognition. we are privileged to remember lord denning as an unforgettable human being whose hundredth birthday we recently celebrated with pride and pleasure. but we also remember him as a great judge and it is as a great judge that he will take his place in history. not all his judgments, of course, will stand the test oftime; some, indeed, were cut down in the pride of their youth; others were raked by academic grapeshot. but more, many more, left an indelible imprint on the living law of our country, and the spirit which inspired all these judgments will endure. he saw the law not as a code of rules, but as a collection of human stories, each 5 the denning law journal with a moral; not as a fetter, but as a source of freedom; not as an unwelcome but inescapable response to the ills of society, but as a means of providing that justice upon which good government and social harmony fundamentally depend. he invested the art of the advocate and the role of the judge with a new nobility. he always looked forward, never back. he sought to build, not to pull down. some well-known lines of wordsworth provide, i think, an appropriate epitaph: "enough, if something from our hands have power to live, and act, and serve the future hour; and if, as toward the silent tomb we go, through love, through hope, and faith's transcendent dower, we feel that we are greater than we know." 6 what kind of castle? robert pearce* the castle defences introduction "the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose." so resolved the judges of england in 1604.1 this is not just an ancient aphorism. it is one ofthe fundamental principles of the law of property which has been repeated and explained many times. lord denning has expressed the sentiment in colourful terms (adopting a quotation from the earl of chatham):2 "the poorest man may in his cottage bid defiance to all the forces of the crown. it may be frailits roof may shake the wind may blow through it the storm may enter but the king of england cannot enter all his force dares not cross the threshold of the ruined tenement. so be it unless he has justification by law." but what kind of castle is it? for we all know that the fortress is under attack. it is under attack, not only by forces without, but also by forces within. i will give some examples later of how the castellan in his castle or the poor man in his cottage may repel the forces without. my main theme here, though, is the attack from forces within, a matter which despite its importance has received little attention from english writers. the problem arises where residential accommodation is shared. what kind of castle is it if the sharers cannot agree? * professor of the law of property and equity, university of buckingham. an inaugural lecture delivered at the university of buckingham in july 1992. 1. semayne's case (1604) 5 co.rep. 91a, at 91b; 77 e.r. 194, at p. 195. 2. soulham v. smoul [1964] i q.b. 308, at p. 320. 153 the denning law journal three classes of issue arise with which i shall deal in turn. the first is how secure the rights of occupation of the sharers are. can one evict the other? on the one hand, what kind of castle is it if you can be turned out? on the other hand, what kind of castle is it if, though you may be secure in your occupation, you are obliged to sleep with the enemy? the second class of issue is how difficulties between sharers can be resolved while they remain together. who is king of the castle if the castle is shared? what kind of castle is it if you are not master in your own home? finally, what rights have sharers to admit others to the property? what kind of castle is it if you cannot close the castle doors? even in a stable housing market these are real and live issues. they have become more important because of the cycle of boom and bust in the residential property market. the explosive rise in house prices in the decade to 1989 and the subsequent equally explosive drop in prices has left a fallout. it has always been the case that married (and unmarried) couples have set up home together. but in the late 1980s this went further. many people unrelated by marriage or physical and emotional attraction were obliged to share either to set foot upon the road to the purchase of their own home or to find accommodation at all. that in itself may have given rise to problems where those sharing the property failed to agree, but in many cases it was possible to escape through the expedient of sale" now that route of escape has been curtailed. the subsequent collapse of the residential property market has meant that many house purchasers are trapped by their mortgages, having taken out mortgages representing a high fraction of the purchase price of their homes when prices were booming. now they find the value of the house has fallen below the sums outstanding on the mortgage, or that they would be left with an insufficient deposit to finance another purchase. over one million households may be affected. they cannot clear their debt by sale, and they cannot afford to move. however difficult it is to share, they are locked in.3 repelling the forces without let me start with some illustrations which show how seriously the law treats invasions of a man's home. the starting point is that, in the absence of some lawful authority justifying the entry of the intruder, the owner of land is entitled to absolute control over his land.4 this can mean, for instance, that he can prevent a 3. a similar problem arises for those sharing secure rented accommodation, although the problem is here at its greatest at a time of housing shortage. even in times of housing surplus there may be disincentives for the sharers to give up their accommodation, for instance where the property has been let at below market rent. 4. see emick v. carrington 19 st. tr. 1029, at p. 1066 where lord camden lcj said: "by the laws of england, every invasion of private property, be it ever so minute, is a trespass. no man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing ... if he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him." 154 what kind of castle? neighbour from using a tower crane which occasionally swings into his airspace,s or stop a neighbour erecting scaffolding on his land to carry out repairs, even if the consequence of this lack of co-operation is that the neighbour will have to demolish his building.6 it will not be until early in 1993, when the access to neighbouring land act 1992 comes into operation, that as a last resort where neighbours cannot agree it will be possible to obtain an access order from the high court or county courts. 7 the landowner's rights to control the use of his land extend to refusing access to visitors, even those who may have important matters to see to. the classic illustration is davis v. lisle.s two policemen walked through the open door of a garage to make enquiries of the occupier. in doing this, the police were not trespassing since leaving the door of business premises open constitutes (in the words of the judge, mr. justice goddard)9 "an invitation to all persons having business with the owners of the premises to go to the premises and to enter the premises." the garage proprietor, however, asked the police to leave, and when they made no move to do so, he assisted their egress. one of the policemen's tunics was torn as a result. the court held that the garage proprietor was entitled to use reasonable force to remove the policemen. a visitor who is asked to leave must, however, be given a sufficient period of grace to quitthe premises. in robson v.hallett 10 a police sergeant was invited into a house by the householder's son and was almost immediately asked to leave by the father. before he was able to do so, the father assaulted him. the question arose whether the sergeant was a trespasser at the time of the assault. it was held that he was not. lord justice diplock said that after the sergeant's invitation to come into the house had been withdrawn, 11 5. woollerron & wilson v. richard cosrain ltd. [1970] 1 all e.r. 483. 6.john trenberth v. national westminster bank ltd. (1979) 39 p. & c.r. 104. 7. there has long been legislation applying to london giving neighbours limited rights of entry for the purpose of carrying out repairs: london building acts (amendment) act 1939. 8. [1936] 2 k.b. 434. for a recent similar case, see plenty v. dillon (1991) 98 a.l.r. 353. two police officers were attempting to serve a summons on mr. plenty concerning an offence which mr. plenty's 14 year old daughter was alleged to have committed, requiring her to appear before a juvenile court. mr. plenty, in communications with the police, had made it quite clear that any service should be made by post and that the police would not be welcome on his land. nevertheless, although it was not disputed that they had no permission from mr. plenty, the police came to his farm with the summons. they did not have a welcoming reception. they found mr. plenty in his garage and attempted to serve the summons by leaving it on the seat of his car. there was a struggle in which mr. plenty attempted to strike one of the police officers with a piece of wood. they arrested him, and he was subsequently convicted of assaulting the officer in the execution of his duty. for some reason mr. plenty does not appear to have challenged that conviction, but he did bring an action against the police for damages for trespass. he succeeded in this action in the high court of australia. the court held that the police had no common law or statutory right to enter mr. plenty's land against his express wishes for the purpose of serving a summons; that he was entitled to resist their entry, and that he was entitled to damages to vindicate his right to the exclusive use and occupation of his land. 9. at p. 440. 10. [1967] 2 q.b. 939. 11. [1967] 2 q.b. 939, at p. 954. 155 the denning law journal "the sergeant had a reasonable time to leave the premises by the most appropriate route for doing so, namely, out of the front door, down the steps and out of the gate, and provided that he did so with reasonable expedition, he would not be a trespasser while he was so doing." by using force to eject the policeman before he had a chance to leave on his own, the householder was guilty of assaulting the officer while acting in the execution of his duty. the owner or occupier of premises, then, has the right to pull up the drawbridge, lower the portcullis and exclude all unwanted visitors from his property. there are some exceptions. a landowner does not have control over the airspace above his property to an unlimited height. 12 and some uninvited visitors can pass the castle walls even against the wishes of the castellano at common law a policeman or citizen could enter without consent to prevent a murder taking place, or to arrest a fugitive who had committed a serious criminal offence (that is a felony) and who had been followed to the premises. there are also a number of statutory provisions which permit entry to premises without the consent of the occupier. we have already come across one in the access to neighbouring land act 1992. another statutory provision is that a policeman with a warrant has the right to enter, by force if necessary, although only after first knocking to request that the doors be opened. 13 utility companies have certain statutory rights to enter premises uninvited, 14 and so too does the exciseman: the officer of her majesty's customs and excise investigating an enterprise dealing in alcoholic liquor or other dutiable goods. 15 the a neon piller order, 16 under which the courts permit access to property for the purpose of collecting evidence for a civil case, also represents a serious inroad into the exclusivity of the rights of the landowner .17 12. lord bernstein of leigh v. skyviews and general ltd. [1978] q.b. 479. 13. police and criminal evidence act 1984, ss. 8-16. 14. see, e.g., water industry act 1991, ss. 168-172; electricity act 1989, s. 24 and sched. 6 paras. 5-8; rights of entry (gas and electricity boards) act 1954, s. 2 as amended by electricity act 1989, s. 112. 15. customs and excise management act 1979, ss. 112, lb. s. 1i8c (added by the finance act 1991, s. 12) contains wider and more general powers. 16. anton piller k.g. v. manufacturing processes ltd. [1976j ch. 55. 17. what makes this inroad into the rights of the landowner remarkable is that it has been introduced by the judges who in other contexts have emphasised the exclusivity of the landowner's rights. see, for instance, morris v. beardmore [1980j 2 all e.r. 753 where the house of lords affirmed the sanctity of the home in holding that the police could not enter a man's home without permission in order to demand a specimen of breath. the decision was followed in lambert v. roberts [1981 j 2 all e.r. 15, at p. 19 where it was held that a policeman who had followed a driver onto a private driveway and there sought a breath test had no right to demand the test since his permission to be on the driveway could be, and had been, terminated without prior notice. in two later cases where the police similarly demanded a breath test from a driver parked on his own driveway, however, the queen's bench divisional court affirmed the decisions of the magistrates that telling the policemen to uf... off' was insufficient to determine the implied licence which a householder extends to visitors to walk up his driveway if they have business with him: gilham v. breidenbach [1982] r.t.r. 328n.; snook v. mannion [1982j r.t.r. 156 what kind of castle? expelling the enemy the greatest threat to the privacy and repose of the householder, however, comes from those with whom he (or she) shares the property. most householders do not occupy their house on their own. they share with spouse and family, or friend, or relative. the sale owner and the invited guest one situation in which an owner of a house shares with another is fairly easily dealt with. as cases like davis v. lisle show, the fact that an owner has invited or allowed someone onto his land does not prevent the owner from asking the visitor to leave, provided only that the visitor is given a reasonable time within which to make his exit. this is true both of the casual visitor, and also someone who has been invited to the property, for instance for dinner, or to stay for the weekend. it is true even if the relationship is of longer duration still, such as the son who looks after his elderly mother in his own home. the length of the invitation, or the duration of the stay which has already taken place will be relevant. someone who has been a guest for a year is entitled to rather more time to pack her bags th~ the dinner guest. apart from this, unless there is some additional factor, giving special protection, something which we shall look at in a moment, the owner is entitled at any time to ask his guest to go. the effect of a contract one of the factors which may prevent or restrict a householder in removing a guest is the existence of a contract. the guest (or licensee as such a guest is generally called) may have paid for the privilege to share the property, like a hotel guest, or a spectator at a cinema.ls the existence of a contract almost certainly means that the owner can be prevented arbitrarily and without justification from removing the licenseel9 except in accordance with the terms of the contract. that may not, however, greatly inhibit the ability of the householder to remove the licensee, since the contract may allow the owner to ask the licensee to leave at short notice. the judicial assumption is 321. in the latter of these two cases forbes j emphasised that there was a significant distinction between entering the driver's dwellinghouse and approaching him on a driveway. see also d.p.p. v. gaffney [1988] i.l.r.m. 39. 18. there were occasions in the past when the courts were prepared to imply a contract, even where there had been no express agreement (see tannerv. tanner [1975] 3 all e.r. 776; hardwick v.johnson [1978] 2 all e.r. 935; chandler v. kerley [1978] 2 all e.r. 942) but this is a rather artificial exercise which has not in recent years been fashionable, and a contract is now likely to be found only where there has been some express agreement (see horrocks v. forray [1976] i all e.r. 737 and the discussion in dawson and pearce, licences relating to the occupation or use of land (1979), pp. 25-28). 19. this would appearto be the effect of hurst v. picture theatres ltd. [1915] i k.b. i and verrall v. great yarmouth borough council [1981] q.b. 202. wood v. leadbitter (1845) 13 m. & w. 838 which suggests the contrary is a decision prior to the judicature acts and so takes no account of the availability of an injunction to prevent a removal which is in breach of contract. 157 the denning law journal that contractual rights to share the use of land are not intended to be of perpetual duration, and if the parties themselves have reached no agreement about when the contractual rights can be terminated, they can be terminated on reasonable notice. 20 the effect of estoppel another way in which the owner of a house may be limited in his ability to evict an unwanted guest is by reason of what is called estoppel. if the owner of the house has led a visitor to believe that the visitor will be allowed to remain in the house free from the threat of eviction, and the visitor has acted in reliance upon that belief in such a way that she would be prejudiced should the owner evict her, then the owner will not be allowed to renege on the reasonable expectation which he has induced.21 this principle of estoppel (i.e., stopping the landowner from enforcing his unfettered legal rights) can protect rights to share accommodation, as in greasley v. cooke.22 a woman entered the family home as housekeeper to the father, and later cohabited with one of his sons for over 30 years. the court of appeal held that, on the son's death, she could stay on in the house for as long as she wished. the family had led her to believe that she would be allowed to do so, and she had acted on that belief by looking after members ofthe family, including a mentally handicapped daughter, without receiving or seeking payment. in most cases, once an equity has arisen in favour of a claimant by virtue of a change of position in reliance upon a legitimate and reasonable expectation 20. australian blue meral ltd. v. hughes [1963] a.c. 74; winter garden theatre (london) ltd. v. m illenniumproductions ltd. [1948] a.c. 173; minister of health v. bellotti [1944] k.b. 298: see dawson and pearce, pp. 84-90. the very limited protection which a contract may give is illustrated by frieze v. unger [1969] v.r. 230. jacob frieze was a retired tailor who had a half-interest in a three-bedroomed maisonette. being a bachelor and, it seems, rather infirm, he wished to live with a family who would be prepared to attend to his wants. he therefore came to an arrangement in writing with the ungers, a family who responded to his advertisement in the australian jewish herald, that they would move into the house with him, meeting all the gas and electricity bills, paying £ ii os per week, and providing jacob with all his meals and doing his laundry. the court held that although the arrangement was one under which the ungers were paying what might be described as a rent, and for five years had the free run of the majority of the flat, it was clear from the arrangement that jacob was intended to remain master and owner in his own house and home. the ungers were simply lodgers without any statutory protection. their right to remain on the property was a precarious one which could be brought to an end at any time consistently with the terms of the agreement with jacob frieze. they could be required to leave after the seven-day notice provided for in their written agreement. 21. the classic illustration of this is inwards v. baker [1965] 2 q.b. 29. a son wanted to build a bungalow, but could not afford to buy a site. the father suggested that the son build on the father's land. the son did so. the court of appeal held that the son should be allowed to remain there "as long as he desires to as his home". in the words of lord denning, mr: "in this case it is quite plain that the father allowed an expectation to be created in the son's mind that this bungalow was to be his home. it was to be his home for life, or at all events, his home as long as he wished it to remain his home." the prejudice the son would have suffered had he been turned out is apparent, for he would have lost the money and effort he put into the building. 22. [1980] 3 all e.r. 710. 158 what kind of castle? induced or encouraged by the landowner, the measure of the entitlement of the claimant will be the fulfilment of that expectation. sometimes, however, the landowner may be able to satisfy the requirements of equity by making good any prejudice which would be suffered in some other way, such as providing alternative accommodation. in dodsworth v. dodsworth23 the owner of a house allowed her brother and his wife to move in with her. believing that they would be allowed to remain, they made improvements costing a substantial sum. the court held that they would be entitled to remain until they had been compensated for their labour and this capital expenditure. 24 a stake in the property the effect of an estoppel may be to give the claimant a right to share the property until compensated for any prejudice which an eviction would cause; a right to the use of the property for a limited period; or even an indefinite and irrevocable right to use the property. the estoppel can go even further, and confer on the claimant a proprietary share in the property. that is what i need to look at next. with the great spread of owner-occupation and the increasing number of two income households, it is increasingly rare for adults sharing property not all to have a claim in the property. that stake can arise in two principal ways. it might, first, be formally recognised by the couple as will usually be the case having the property transferred into both their names.25 secondly, even if the couple do not expressly recognise that both have a stake in the property, the circumstances of the acquisition of the property may be such that, even though it has been put into the name of one of them only, he (as is usually the case) will be compelled by the courts to treat the property as if it had been acquired in the names of both. although on the face of things he is solely entitled to the property, he will hold it upon constructive trust for both. when a constructive trust will be imposed upon a sole owner in this sort of situation is now at least reasonably well settled by a recent decision of the house of lords, lloyds bank ltd. v. rosset. 26 mr. and mrs. rosset acquired and renovated a dilapidated farmhouse. virtually all the money for the purchase and improvements came from mr. rosset's family trust, which insisted that the property be conveyed into the name of mr. rosset alone. mrs. rosset's contribution was not financial, but consisted, by and large, of the supervision of building work. the house of lords indicated that there are two ways in which it is possible for someone like mrs. rosset to assert a claim to a share in the property. the first is where there had been a common intention, evidenced by some express agreement or discussion between the parties, that the non-owner would acquire a share in the 23. (1973) 228 estates gazerte ills. 24. it is by no means clear how a right of this kind should be characterised. see re sharpe (a bankrupt) [1980] i w.l.r. 219. see also hussey v. palmer [1972] i w.l.r. 1286. 2s. for present purposes it does not matter whether this is as joint tenants or as tenants in common. 26. [1991] i a.c. 107. 159 the denning law journal property. if, on the faith of that understanding, the non-owner spent money to help with the acquisition of the property, or in making improvements, in some significant way, then the owner would not be permitted to go back on the common understanding. 27 the second way in which a share in a property can be acquired is that even without any express common intention, direct contributions to the acquisition of the family home by the person without legal ownership may have been made on such a scale that no one could possibly have made such a contribution unless they expected to receive a share in the property. if the acts concerned, and therefore the inferred expectation, were known to the legal owner, then he would be obliged to fulfil that expectation. 28 in the rosser case itself, the court found no evidence of any common intention to share ownership of the property, and indeed the insistence of the family trust that the house should be conveyed into mr. rosset's name alone was an indication to the contrary. the contribution mrs. rosset made to the renovations was also not of such a scale as to lead to the inference that she should obtain a stake in the house. she was not doing any more than most wives would do in seeking to make a house into a home, and her financial contributions were negligible. 29 as can be seen from the articulation i have given of the principles set out by the house of lords in lloyds bank lrd v. rosset, there is no marked difference in this context between the principles of constructive trust and the principles of equitable estoppel. the two concepts are referred to in the opinion of the lords as if they are interchangeable. i believe that in this instance equitable estoppel and constructive trust are two closely related manifestations of the broader principle that legitimate expectations will be protected. i embarked on the brief consideration of whether the sharers of property have proprietary interests because it is extremely relevant to whether the owner of the property can seek to turn a sharer out. the proprietary interest of the sharer gives her a right to occupation. she cannot be turned out against her will.30 if the man 27. eves v. eves [1975] 3 all e.r. 768 and gram v. edwards [1986] ch. 638 are examples. 28. in the first kind of case, the common intention might well be that the couple concerned would share the property equally, in return for acquiring the property by their joint efforts. ownership would then be divided equally between them, notwithstanding that their contributions may not have been of equal value. in the second kind of case, because there is no expressed division of ownership, the court infers an intention to share ownership in proportion to the value ofthe contributions made to the acquisition. 29. the courts in canada have been prepared to go further. they have taken the view that even without a common intention, a cohabitee can claim a share in the property where the legal owner has been enriched at the expense of the claimant, and there was no juristic reason for this enrichment. applying these criteria, providing housekeeping services or domestic work could merit conferring a proprietary interest. see rabichuck v. carrwrighr (1990) 26 r. f.l. (3d) 206 where for contributions similar to those of mrs. rosset a social worker who supervised the internal decorations was held entitled to $200,000 from the proceeds of sale of a $600,000 home. and in kurr v. sam (1990) 26 f.l.r. (3d) 268 a similar amount was acquired by a woman whose contribution had been through childrearing. 30. bullv. bull [1955] 1 q.b. 234; tubmanv.johnsron [1981] 12 n.lj.b. fora discussion of the effect of the trust on rights of occupation, see infra. 160 what kind of castle? says: "i'm the king of the castle; you're the dirty old rascal", the woman can respond in similar vein. neither of the two co-tenants, whatever their respective shares, can claim to be entitled to the property without the other. both are entitled to possession of the whole property, and this joint or common right continues until the property is sold. for either to exclude the other from the property is an actionable wrong which sounds in damages and can be restrained in an appropriate case by injunction. the only situation in which it is likely that the court would enable one joint owner to exclude the other would be where the person it was sought to exclude had so conducted himself by violence or other gross behaviour that he made it impossible in practice for the other co-tenants to exercise their rights.31 where the co-tenants cannot reach agreement about the termination of their relationship, the only practical solution in most cases is for an application to be made for the property to be sold by order of the court.32 even this possibility is not available if the property is held on a periodic tenancy with no residual value.33 where a sale is possible, the court has a discretion whether to order a sale, and the principles on which that discretion will be exercised are now fairly well settled. they are not, however, central to my theme. the owner and his spouse quite apart from the nature of the interest (if any) which a sharer may have in the house she occupies, some sharers have a right to protection based on status. a householder who is married, or has children, may well find that the lordship he has of his castle is seriously compromised by the rights of the members of his family. i mention only this: under the statutory powers of the courts in matrimonial cases34 the castellan who invites his wife to join him in the castle may find not only that he may be prevented from evicting her, but even that she may obtain a court order requiring him to leave so that she can remain.35 what kind of castle is that? living with the enemy the rules relating to the termination of rights of occupation have received a good deal of attention over the years and present no especial difficulty. a matter which 31. see lord diplock in davis v.johnson [1979] a.c. 264, at p. 330. 32. under s. 30, law of property act 1925. . 33. the court is effectively without any power to decide which rights of occupation should prevail: ainsbury v. mjjjingron [1986] 1 all e.r. 73; waugh v. waugh (1982) 3 f.l.r. 375. 34. matrimonial homes act 1983. the same fate may even befall the unmarried proprietor. the domestic violence and matrimonial proceedings act 1976permits the county court to make exclusion orders to deal with domestic violence in the case of both married couples and also of unmarried couples where a man and a woman are living together in the same household as husband and wife. although it was initially thought that this provision did not enable the court to override common law property rights, the house of lords decided in davis v.johnson [1979] a.c. 264 thatthe act applied regardless of whether the person excluded was sole or joint owner of the home. 35. her rights of occupation cease on divorce absolute, although the court has power to make orders relating to the occupation of property in ancillary proceedings. 161 the denning law journal provides rather greater difficulty is the regulation of rights of occupation between those sharing accommodation. how can those sharing the occupation of property resolve their disputes as to the use of the property if they cannot reach agreement? the gratuitous guest the answer to that question depends upon the nature of the arrangement under which they share. in some cases that relationship makes one the seigneur whose rights will prevail. if the host does not wish his dinner guest to smoke, he is perfectly entitled to ask the guest who insists on lighting up to leave.36 and as we have seen, it is no different if the guest has been invited for the weekend or longer: the nature of a gratuitous permission is that it can be withdrawn at any time, merely upon giving the guest or licensee a reasonable time within which to leave. 37 i t follows that the host can insist as a condition of allowing the guest to remain that the guest conforms to the behaviour which the host demands. the contractual licensee where the position of the subordinate occupier is more secure, then the rights of the owner are less draconian. where there is a contract, then the licensee is entitled to remain in occupation for the duration of his contractual rights. the owner cannot therefore change the rules as he goes along. the question must instead be whether the licensee has stepped outside the rules of conduct permitted by the contract. if he has not, he cannot lawfully be removed so long as his contractual right to remain subsists. of course, if he does step outside the terms of his invitation, he loses his right to stay. 38 the interpretation of the contract will ultimately be a matter for the court. the licensee by estoppel where a sharer's occupation is protected by estoppel, the matter of regulation is wholly unclear. as in the case of occupation protected by contract, it is not open to the owner of the property to impose his rules of conduct under the threat of the termination of the rights of occupation. obviously, however, there must be some limits on the conduct which either user of the property can inflict upon the other. some guidance may be had from an unreported irish decision. a farmer had left his farm to one of his sons, but had given his other children personal but irrevocable rights of residence. the farming son and the others ran into problems. the children were in the habit of travelling down from dublin at weekends. they were rather relaxed about the care they took in parking, so that the farming brother found that not infrequently he could not get his tractor out of the farmyard. the family was 36. robson v. hal/err [1967] 2 q.b. 939. 37. coombes v. smith [1986] i w.l.r. 808. 38. this was implicit in hurst v. picture theatres ltd. [1915] i k.b. 1. a cinema spectator who was misbehaving would not be entitled to the protection of equity. 162 what kind of castle? unable to resolve the problem itself, and the matter ended up in the courts. the decision of the judge was that he did have power to regulate the relationship, but he was not prepared to exclude the rights of any of the children. he directed that the rights of the farming brother should prevail. he was the owner of the farm. the other children had only a right to use it. he would not prevent them from making their weekend visits, but when they did so, they were to park in such a way as not to impede access to the farmyard. 39 co-tenants like the position of the occupier protected by estoppel, the position of co-tenants in dispute between themselves is something which has received little attention. that there is a jurisdiction on the part of the courts to intervene i do not doubt, yet my researches have failed to identify any english decisions directly in point. it may well be that the law cannot hope to resolve all the difficulties which can arise between co-tenants, and that they are often better left to resolve matters between themselves. but that is also the case in regard to neighbours, and yet the law does not hesitate there to offer remedies. should not the same kinds of remedy be available to those who share? as between neighbours, each is required to use his property reasonably, so as not to interfere with the like right of the other. i can thus be restrained by injunction if! make noises late at night which disturb the peace of my neighbour, or if i pollute my neighbour's property with smells or smoke. in each case my conduct is considered by law to constitute an actionable nuisance. is there something so special about the tort of nuisance that it should not also be available between those who share?40 perhaps lord justice ormrod shared my view. in waugh v. waugh41 he said: "there is no doubt, i imagine, that one joint tenant can obtain an injunction restraining various acts or conduct on the part of the other joint tenant who makes life impossible." quite apart from this kind of nuisance, there can be other problems concerning the use of shared property which are susceptible to regulation, like the parking in the irish rights of residence case. it is frequently said that co-tenants each have a right to the use ofthe entire property. neither may exclude the other from any part of it. yet that opinion goes too far. as was said in one american case:42 "co-tenants cannot actually occupy in common every part of the premises, no matter what their description. if they live together in the mansion house, 39. this is an unreported first instance decision of about 1985-1989. since first reading it i have been unable to trace the transcript, and the account of the case is based on memory. 40. co-tenants, just like neighbours, have proprietary rights which can support the action. 41. (1982) 3 f.l.r. 375, at p. 377. 42. mastbaum v. mastbaum 9 a 2d 51 (1939), at p. 55. 163 the denning law journal still each has exclusive possession of his own bedroom. if the property be a farm, unless they are willing to go into partnership, one must till certain fields and one other fields. two men cannot plow the same furrow." if a mother and her son share the mansion house they are each likely to want the privacy of their own rooms. if they cannot agree, can there not be an application to court as a last resort? similarly if a father leaves his holiday home to his children but they cannot agree on how to take turns to use it, could a court not resolve their difference? the nearest illustration i have been able to find of this kind of application concerned a rocking chair which passed to the two children of the deceased owner.43 neither wanted a sale because the sentimental value of the chair far exceeded its commercial value. the court could, i suppose, have adopted the judgment of solomon and required the chair to be cut in two. instead the judge ordered the executrix of the deceased's estate not to sell the chair and ordered that the two children should be permitted to take the chair for six month turns until they voluntarily terminated the arrangement. the fifth column there is very little authority on the extent to which a person sharing the occupation of a property may invite others to it. as in the other two areas at which we have already looked, the position depends on the form of shared occupation. at the one extreme the sole legal and beneficial owner of property has the fullest liberty to invite others to the property. at the other extreme a person with no legal or equitable right in a property, and who is not even in occupation of that property, has no right to permit others to enter it. occupiers without title what is the position if a person living at a house by permission of the owner, but with no better right than that invites another to the property? it may be that should make no difference. there is a principle in law (though subject to many exceptions), expressed in latin as nemo dat quod non habet, that no one can give a better right than they have themselves. 44 no one would expectthat an invitation to 43. re estate of burr c. mcdowell, deed. 345 nys 2d 828 (1973). 44. an american case, people v. weaver 241 mich. 616,217 nw 797, 58 a.l.r. 733 (1928), decided during the prohibition, illustrates this. the husband had been placed on probation for a violation of the prohibition law. as one of the conditions he had signed a document permitting the authorities to search without warrant any business or domestic premises which were occupied by him during the term of his probation. mrs. weaver had commenced divorce proceedings against her husband, and was buying her own house, but mr. weaver lived in her house when he was not away from home on work. relying on the husband's letter of authority, the police searched the wife's home where they found some home-brewed beer in the fridge. mrs. weaver was charged and convicted of unlawful possession. the michigan supreme court overturned the conviction, finding that there was an inconsistency: if the husband's consent could be relied upon to justify the search, then it should have followed that the home' 164 what kind of castle? spend the weekend as a country house guest would include the right to bring a friend unless that had been expressly stated in the invitation. but if the relationship is of rather longer duration, such as where a man and woman are cohabiting, our reaction might be rather different. if i am living in a stable relationship with a friend in a property which belongs entirely to my friend, is a colleague i invite to join me for a drink before sunday lunch inevitably a trespasser unless i have specifically obtained clearance? i think our answer here would be that i can invite my colleague to join me, however futile my invitation may be in that if my own permission to be on the property can be terminated without prior notice, my colleague can equally peremptorily be asked to leave.45 so how can the two situations that i have just outlined be reconciled? the answer lies, i believe, in what the contract lawyers call implied terms.46when we enter into bargains we do not always specify in detail how all the issues that might arise during our relationship are to be resolved. the law makes good some of these omissions. sometimes the law will import an implied obligation because that is necessary to give reasonable efficacy to the bargain. in other cases, the law may presume agreement (in the absence of anything said to the contrary) if the point is such that, had an officious bystander interjected and said "you have forgotten to deal with this", the parties would have said "but, of course, we took that for granted." these approaches provide our answer. if i am invited for the weekend, my invitation permits me to bring my luggage: i will need that to change for dinner. it is reasonably necessary to the enterprise, quite apart from being within the test of what is taken for granted. but bringing an extra guest of my own goes beyond the scope of the invitation on either test. where my invitation is of longer duration, the response is rather different,41 unless i am staying in a hermitage, or the contrary has otherwise been made clear, my permission to reside with my friend will extend to rendering the ordinary civilities of life and ordinary acts of social intercourse. that would be taken for granted, and is a reasonably necessary incident of residing in a house. inviting a was his as a matter of law. if mrs. weaver was to be treated as the head of the household for the purpose of the criminal charge, then she was entitled to the constitutional protection which an american citizen has against the use of evidence obtained in an unlawful search. 45. a different view is expressed in dawson and pearce, licences relaring to the occupation or use of land, p. 132 where greater emphasis is placed on the absence of any right (in the sense of title) on the part of the gratuitous bare licensee, and it is suggested that" because the bare licensee himself has no right he cannot, in virtue of what he does not have (i.e., a right), authorise, as an incident thereto, a third party to enjoy part of the benefit of it. " that view fails to take account of the possibility that a gratuitous licence may imply as an incident the liberty to invite others to the property. 46. see dawson and pearce, pp. 141-142. 47. romer lj in frank warr & co. ltd. v. london county council [19m] i k.b. 713, at pp. 722-3 suggested that in construing a licence a distinction was to be drawn between licences for pleasure which should be strictly construed and licences for profit which could more readily be construed as extending to the servants of the licensee. it is submitted that the distinction between profit and pleasure is only one of the factors to which regard should be had in construing the licence. 165 the denning law journal colleague to share a drink would be permissible; but inviting him to move in long-term without the special permission of the householder would not. what is reasonable clearly requires a balancing of the interests of both sharers. as was said in one american case:48 "joint occupancy of property, particularly residential property, obviously demands reasonable restrictions on the right of each joint occupant either by himself or through another to exercise full control over the property at all times regardless of the wishes of another joint occupant present on the premises. a joint occupant's right of privacy in his home is not completely at the mercy of another with whom he shares legal possession." in that case nieman had been caught in possession of a substantial quantity of marijuana. he gave the police the keys to a flat in which he lived. as the police were trying to find the right key, the door was opened by tompkins, who also lived there. on seeing the police, he slammed the door in their face. the police broke down the door and inside found marijuana seeds in a jar. tompkins was charged and convicted of possession. by a majority of five to one, the supreme court of california in bank held that nieman's consent was not in the circumstances sufficient. the search was unlawful and the evidence obtained inadmissible. "we hold that one joint occupant who is away from the premises may not authorize police officers to enter and search the premises over the objection of another joint occupant who is present at the time, at least where as in this case, no prior warning is given, no emergency exists, and the officer fails even to disclose his purpose to the occupant who is present or to inform him that he has the consent of the absent occupant to enter." furthermore, the court was of the opinion that nieman's consent to a search could not have extended to such an arbitrary exercise of his right to possession as the breaking down of the door. co-owners so far, in looking at the right of a house-sharer to invite guests i have considered only the position of a sharer with no title to the property. but, as we have already seen, more often than not nowadays sharers of residential property (other than children) can all claim to have a proprietary interest in the property which they share. here there is the most difficult problem of all, and once again, the rules are by no means clear. the starting-point for a consideration of the rights of co-tenants is doe on the 48. tompkins v. superior court 378 p. 2nd 113 (1963), at p. 116. 166 what kind of castle? demise of aslin v. summersett.49 the court of king's bench concluded that where three offour joint landlords had given notice to quit under a periodic tenancy, the tenancy automatically came to an end. the court indicated that the tenant could remain in possession of the land as tenant of the share of the fourth landlord, sharing occupation with the other (former) landlords, but this required a new arrangement with that joint tenant. summersett's case was referred to with approval by the law lords in the recent decision in hammersmith & fulham london borough council v. monk.50 it was explained as an illustration of the principle that for decisions affecting the whole of a property held by co-tenants, all the co-tenants must agree. each new period for which a periodic tenancy continues must, it was said, be treated as a tacit renewal, and so required the concurrence of all. the house of lords did not comment on the ability of one co-tenant to lease his own share, but the remarks in summersett's case on this point reflect the orthodox view that a co-owner is able to create derivative rights to the land concerned out of his own interest. although this point may not be easy to follow, it is something which, for the sake of my thesis, i must emphasise. take the case of a husband and wife. together they acquire a property. but then they fall out. can the husband rent his share in the house or even sell it to a stranger? lord denning thought that possibility so repugnant that in bedson v. bedson51 he said that where a husband and wife had acquired a property as joint tenants, it was not possible for either to alienate their interest to a stranger. russell lj in the same case thought that proposition to be without any foundation in law or in equity, 52 and subsequent comments on the point have affirmed the russell rather than the denning view.53 the russell view is also supported by a whole battery of united states and commonwealth cases. space permits just one illustration, cantazariti v. whitehouse,54 a case heard on appeal by the federal court of australia. mr. and mrs. cantazariti were joint owners of what was the matrimonial home until the marriage broke up and mrs. cantazariti moved out. mr. cantazariti subsequently let the house to mr. whitehouse who did not know of the wife's interest in the property and thought that he was obtaining vacant possession of the whole property. mr. cantazariti told his wife that he was using the rent to meet the mortgage payments on the house. when she discovered that he was not, mrs. cantazariti asked mr. whitehouse and his family to leave. they did not, so she entered the house by breaking a window and climbing in. she proceeded to throw clothing, linen and crockery belonging to mr. whitehouse into the backyard; mr. whitehouse's dogs got in through the broken window and 49. (1830) 1 b. & ad. 135. 50. (1991) 63 p. & c.r. 373. 51. [1965] 2 q.b. 666. 52. [1965] 2 q.b. 666, at p. 690. 53. re draper's conveyance [1969] 1 ch 486; cowcher v. cowcher [1972] 1 w.l.r. 425; harris v. goddard [1983] 1 w.l.r. 1203;fleming v. hargreaves [1976] 1 n.z.l.r. 123. 54. [1981] 55 f.l.r. 426. 167 the denning law journal caused further damage. following this, initially against the opposition of mr. whitehouse, but later with his agreement, she moved back into one of the rooms of the house. mr. whitehouse brought an action claiming to be entitled to the occupation of the house, and also claiming compensation for the damage to his belongings. part of the dispute became otiose since before the hearing, mr. whitehouse left the house. the full court, in a written judgment, stated that the grant of the lease by mr. cantazariti was effective to bind his own share, but not that of his wife. she was, however, obliged to recognise the right of occupancy her husband had conferred on mr. whitehouse. 55 "the agreement between the appellant's husband and the respondent entitled the respondent to use and occupy the whole of the premises together with the appellant. she retained her right as joint tenant equally to use and enjoy the whole estate. but she was not entitled to attempt to prevent the respondent from exercising his right of use and occupation. in particular she was not entitled to damage his goods and chattels. her conduct in this latter regard constituted an actionable infringement of the respondent's rights." this, i emphasise, represents the orthodox position. it is against that background that we have to look at some of the recent english decisions. those decisions, however much in accordance with our feelings of propriety, are difficult to defend on their application of law. there are four cases at which i wish to look. three are from the court of appeal. the other is a decision of a county court judge. i will start with that case since the decision has little standing in the heirarchy of judicial authority. it is sanders v. mcdonald. 56 mr. pringle and mrs. sanders, an unmarried couple, were joint tenants of a council flat where they lived with mrs. sanders' adult daughter. after the couple's relationship broke down, mr. pringle brought miss mcdonald, his new girlfriend, to live with him. mrs. sanders moved to another bedroom. one imagines that the relationship was rather strained: the two families kept their bedrooms padlocked and lived separately. after about a year of this arrangement mrs. sanders sought to terminate any licence which miss mcdonald had to occupy the flat. since mr. pringle did not agree to terminate the licence, he was joined as a defendant. the county court judge, judge harris, ordered miss mcdonald to go. he held that: "one joint tenant cannox grant any interest, including a licence, in the land without the agreement, express or implied, of the other joint tenant. mrs. 55. [1981] 55 f.l.r. 426. 56. [1981] c.l.y. 1534. 168 what kind of castle? sanders did not agree to miss mcdonald's presence and actively objected to it and, accordingly, miss mcdonald never had any interest in the flat as licensee; if [that finding] was wrong, the notice in july 1979, although given by one joint tenant only and against the wishes of the other joint tenant, determined any interest miss mcdonald might have had. "57 this is not an isolated case for, as i have said, there are also decisions of the court of appeal to consider. the first of these was robson-paul v. farrugia.58 the plot here is rather complicated. mr. farrugia, one of the defendants, clearly had a fondness for women, and was none too honest. although he was already married, he went through a bigamous ceremony of marriage with the unsuspecting plaintiff, miss robson-paul. the two of them bought a house together in their married names, on the face of it as joint tenants. at some stage miss robson-paul moved out and mr. farrugia brought another woman to live with him in the house. the next step in the saga was that there was an attempt to sell the house to miss dimitriou, miss robson-paul's signature being forged by a woman claiming to be her (probably the woman with whom mr. farrugia was then living). when miss robson-paul found out about the sale, she had the transfer declared void, and in the present proceedings she sought to recover possession of the property from miss dimitriou, who had moved in and refused to leave. miss dimitriou had not pleaded that the forged transfer, although ineffective to transfer ownership of the whole house, was at least effective to transfer to her the share of mr. farrugia. an attempt to introduce that claim at a late stage was rejected for technical reasons.59 instead, miss dimitriou argued that mr. farrugia had given her a licence to occupy the premises, and that licence could not be terminated by miss robson-paul. lord justice davies doubted whether it could truly be said that a licence could be implied from the fraudulent transfer.60 "assuming, however, that such a licence is to be implied from farrugia's transaction, it seems to me to be quite impossible to say that such a licence cannot be terminated by the other joint tenant or tenant in common without the agreement of both. if one can grant a licence as to which, quaere -, surely, the other can revoke the licence. otherwise, the licence would remain in the premises ad infinitum." 57. citing doe d. aslin v. summerseu (1830) i b. & ad. 135. 58. (1969) 20 p. & c.r. 820. 59. see at p. 823. had it not been for the failure to plead or argue this matter in the county court, miss dimitriou should have had a strong case: see first national securities ltd. v. hegerty [1985] q.b. 850 where a mortgage instrument bearing the signature of one joint tenant and the forged signature of his wife, the other joint tenant, was held to be effective to create an equitable mortgage over the share of the husband alone, although ineffective in regard to the share of the wife. 60. (1969) 20 p. & c.r. 820, at p. 825. 169 the denning law journal lord justice megaw accepted that a licence was purported to be given, but he said that it purported to be a licence to take possession of the entire property. it was not suggested, he said, that there was any principle of law that one co-owner had implied authority to grant a licence of the whole of the property without the consent of the other co-owner. mr. farrugia's attempt to grant a licence of the whole house was an attempt to do something which he had no authority to do. as such it could not be effective "for any purpose against any person who would be affected there by. "61 plowman j, the third judge in the court, said simply that he agreed and that he could not usefully add anything. what the judges in the case appear to assume is that the licence, if there is any given, must and can only be a licence of the entire property. this overlooks the possibility that an attempt by one co-owner to give possession of the whole house, although inoperative for that purpose, since it requires authority from both co-owners, could be at least operative to grant rights against the grantor alone. mr. farrugia surely did not need authority from anyone to confer rights of occupation out of his own interest in the property. and if mr. farrugia could grant rights arising from his own interest alone, then, as counsel for miss dimitriou argued, why should miss robson-paul be any better able to obtain possession from her than she could from mr. farrugia?62 this case, although before the court of appeal, was argued in just one day. the extemporary judgments were given the same day, and only one case in point was cited. just as we can dispense with sanders v. mcdonald as being of little persuasive authority, so also we might regard this decision as concerned with a very unusual situation, poorly thought through, and decided without proper regard to previous decisions. but it cannot be rejected so easily. the decision has been followed and applied in a subsequent court of appeal decision, annen v. rattee.63 in this case two canadian drama students, miss annen and mr. wagar, bought a flat in london, intending it to be their future matrimonial home. only mr. wagar moved in. he shared the use of the flat with a series of drama students. one of these fellow students was the defendant paul rattee. he stayed on in the flat after mr. wagar returned to canada in 1979. when miss annen learnt of this, 61. (1969) 20 p. & c.r. 820, at p. 828. 62. megaw lj indicated that counsel for miss dimitriou had referred to the decision in bull v. bull (1955] 1 q.b. 234 that one co-owner could not evict another and had put the question forensically: "should that principle not apply equally to prevent a tenant in common from getting an order for possession against someone to whom his fellow tenant in common has transmitted possession?" megaw lj furnished his response. "i think that the answer to that question might well be 'no'. indeed, i think that it might well be put the other way round: why should someone to whom the possession of the whole property has been transmitted by the tenant in common have protection against the obtaining of an order for possession by the other tenant in common who has not concurred in that transfer of possession?" it is evident from this response that megaw lj was again not considering the possibility of the grant of a licence by mr. farrugia operating out of his own interest alone. 63. (1985) 273 e.g. 503; (1985] e.g.d. 136. 170 what kind of castle? she objected and made efforts to get. him out. after some delay, she sent a letter purporting to terminate his licence. mr. wagar did not know of this, nor, it follows, did mr. wagar consent to miss annen's actions. mr. rattee still did not leave. he claimed that the licence to live in the flat given to him by mr. wagar could not be terminated by miss annen. the court of appeal affirmed the decision of the county court judge that this licence had validly been determined. stephenson lj began his opinion on this matter with a discussion of doe d. aslin v. summersett64 and subsequent cases dealing with the termination of leases granted by joint tenants. those did not, of course, include the recent decision of the house of lords in hammersmith and fulham l.b.c. v. monk.65 lord justice stephenson came to the view that summersett's case, as subsequently interpreted, had decided that a notice to quit given by one co-owner was effective to determine a tenancy. he could find no point of distinction between that case and the issue which he had to decide. miss annen was therefore able to terminate the licence given by mr. wagar. in reaching this conclusion, lord justice stephenson entirely overlooked the possibility of the grant of rights operating against the interest of one co-tenant alone. he was therefore mistaken about the effect of a purported termination by the other co-tenant. he said that he was fortified in coming to that conclusion by the court of appeal decision in the robson-paul case, but of course that decision suffers from just the same fault. after setting out the decision in that case, he said: "the resemblance of that case to this is limited, but nevertheless striking. it seems to me that what lord justice davies said, 'if one can grant a licence ... then ... the other can revoke the licence. otherwise, the licensee would remain in the premises ad infinitum', applies just as much to a case of a sharing occupation as it does to an occupation, whether under licence or tenancy, of the whole of a property." lord justice lloyd, the other judge in this two-judge court, gave a concurring opinion. he also, without adverting to the possibility of one co-owner granting rights operating against his own interest only, said that summersett's case and subsequent cases, including robson-paul v. farrugia, bound them to the view that notice by anyone co-owner was effective to determine a licence to occupy the property. as i hope i have already demonstrated, these two court of appeal decisions, far from representing the orthodox view, are heretical and unsound. but there is still a third court of appeal decision to consider. this one is the strangest of them all. it 64. (1830) 1 b. & ad. 135. 65. (1991) p. & c.r. 373. 171 the denning law journal is chhokar v. chhokar.66 the chhokars' marriage had some ups and downs. they had bought a house together in 1977as their family home, both contributing to the purchase, so that mrs. chhokar had a stake in it, although it was transferred into the name of mr. chhokar alone. in 1978 mr. chhokar attempted to abandon his pregnant wife in india, leaving her destitute. he failed. mr. chhokar then, without the knowledge of his wife, sold the family home to a mr. parmar for a price about 30%below open market value. completion took place while the wife was in hospital to have her baby. mr. chhokar collected the net proceeds of sale in cash, and disappeared with them to india. the wife did not see him again for two years. when she came out of hospital on 22 february, she went home to find that mr. parmar had moved in and changed the locks. she had to spend the night with an aunt. the next day mrs. chhokar managed to get into the house, but she was thrown out by mr. parmar. she managed to get back into the house again in early march. two days later mr. parmar arrived with a few men he called builders, broke into the house, and smashed the lavatory and every window in the house. mrs. chhokar was assaulted and badly bruised, and there was a threat to throw her baby out of the window. after this, it seems that mrs. chhokar was left in the house without further molestation. in 1981 mr. chhokar returned to england. although his relationship with his wife was rather strained, he did occasionally stay at the house, and by the time the case came to trial the judge was sure that there would be a full resumption of cohabitation. the court was faced with a variety of claims, some of which are fortunately not relevant to our present discussion. the court of appeal agreed that the effect of the sale to mr. parmar was that he had acquired the same right to the property as the husband had prior to the sale: that is, he had acquired legal ownership, but that in equity he was beneficial tenant in common with the wife. the court, however, refused to order a sale, because this would have deprived the innocent wife of her rights of occupation. the court was quite happy to contemplate mr. chhokar joining her at the house, even though he had parted with all proprietary interest in the house to mr. parmar. but what of mr. parmar. could he move into the house? what the court said was this: "mr. brock [the barrister representing mr. parmar] submits that he has a right in law to occupy the property, but he goes on in the next breath to concede that it is a right that cannot be exercised because he succeeded to the rights of the husband in the matrimonial home. mr. parmar is a married man himself and no court would allow him to try to occupy the matrimonial home in common with mrs. chhokar (and for all i know mrs. parmar might have something to say about it too, if he tried to do so)." it is this point, put so casually that the judge feels able to make a poor joke, and as if 66. [1984] f.l.r. 313. 172 what kind of castle? the matter were uncontroversial and free from doubt, which raises the very greatest difficulty. why is it that a man who has bought a half-share in a house is told that he cannot live there? that he is a married man is entirely beside the point. if mrs. chhokar can live there with her husband, why should not mr. parmar be able to live there with his wife? it cannot, i think, be argued that mr. parmar had no right of occupation. having a beneficial interest as tenant in common is generally understood to confer a right of occupancy, 67a view which has been affirmed in a series of cases including decisions of the house of lords. these cases68 hold that a beneficial co-tenant, even where there is a trust, enjoys, by reason of that interest, a present right of occupation. had it not been for that right of occupation, indeed, mrs. chhokar would not have had any claim to remain in the house after her husband had sold it: she would instead have had to rely on a claim against him for a share in the price he received. it seems, therefore, that the acquisition of a beneficial interest by mr. parmar should have been enough to confer on him a right of occupation. if the court was denying the existence of any such right, it was wrong. the court could have asserted a jurisdiction to exclude mr. parmar from the premises on the basis that his earlier conduct had been so reprehensible that mrs. chhokar could not be expected to live under the same roof as him; that only by excluding him could her own right of occupation be preserved. but, as we have already seen, the courts have denied any general jurisdiction to terminate rights of occupation as between co-owners,69 and this was not a situation where any statutory provisions applied. 70 i do not shed tears for mr. parmar. it would not be easy to contemplate a person who had done more to merit the forfeit of his rights of occupation. but whether the courts in such a situation as this have the power to forfeit the rights of occupation of a beneficial co-owner was too disputatious to dismiss in one line and a joke. 67. there is an argument to the contrary. since 1925, in all cases of co-ownership of a legal estate in land, with some possible but insignificant exceptions, the co-ownership takes effect by the imposition of a trust under which up to four trustees hold the legal interest in the property for the benefit of the co-owners, be they tenants in common or joint tenants. it has been argued that since the legal right in the property is held by the trustees, they are the persons who are legally entitled to possession, and if the beneficial co-tenants are allowed to occupy the property, it is only by permission of the trustees (see re landi (deceased) [1939] ch. 828; crane, (1955) 19conv. (n.s.) 146; saunders and mcgregor, (1973)37 conv. (n.s.) 270, at pp. 272-3). that argument has decisively been rejected. in any event, it would not have helped the court of appeal in this case, since the effect of the registration of the transfer following the sale to mr. parmar was to make him the trustee with the legal right to possession. 68. bullv. bull [1955] 1 q.b. 234; williamsandglyn's bankv. boland [1981] a.c. 487; ciry of london building sociery v. flegg [1988] a. c. 54; h ammersmirh and fulham l.b. c. v. monk (1991) 63 p. & c.r. 373. 69. see ainsbury v. millingron [1986] 1 all e.r. 73. 70. matrimonial homes act 1983; domestic violence and matrimonial proceedings act 1976; domestic proceedings and magistrates' courts act 1978. 173 the denning law journal conclusion so we have completed our initial survey of the englishman's castle. much more remains to be explored, not just of the law, but also of the social and economic issues. what is my verdict on what we have found? the relationship of most sharers of residential property is not often of the arms-length kind. while the relationship prospers, most differences can amicably be settled. when it does not, the problems can be severe. there are undoubtedly many situations in which the law can offer no direct help: no amount oflegislation can restore to harmony a discordant personal relationship. recourse to law is often also the very last resort: should it prove necessary to go to law the relationship may already have strained beyond breaking point. but still, in every negotiation over rights the law provides the backdrop. friction may be reduced and out of court settlement of disputes eased where that backdrop is settled, practical, and well understood. that, i regret to say, is far from the case for those sharing residential property. there are, then, criteria against which i believe that this branch of the law should be measured. it is of prime importance that the law should be clear. it is also important that reasonable settlement of disputes should be encouraged and arbitrary action restrained. in sum, a balance has to be drawn between the free exercise of rights of property and the protection of the reasonable expectations of those sharing its use. i have examined three principal areas: first, the ability of the owner of property to evict his fellow-occupants; second, the regulation of the affairs of sharers of residential property while they remain together; and third, the rights of occupiers to permit others the use of the property. how well do the three areas at which i have looked measure up to the criteria i have described? the first comes the closest to meeting them. the law concerning the termination of sharing is in flux, but i believe that it is moving in a way which satisfies my criteria. in the second, there is further to go before the criteria are satisfied. the law on the regulation of rights of sharers has yet to be developed, but it is within the means of the common law to develop it as i have suggested. in the third area, the balance has yet to be found when it comes to admitting strangers to the home: indeed the english courts have yet even to put the conflicting considerations properly on the scales. with such uncertainty in the law, i think that it is with justification that i pose the question in my title: "what kind of castle?" 174 commercial law and company law *len sealy introduction nearly twenty years ago, when lord denning retired after having held high judicial office for the best part of four decades, i was asked to write a short piece for the journal of the law society of king's college, london. i reflected then that it had been a great stroke of good fortune for me to have spent so much of my teaching career in a period when our greatest innovator was in full cry, springing a fresh surprise every time that one opened the week's instalment of law reports.' the students held him in special regard, not just because they admired the "bold spirit" who was never afraid to speak his mind and press the case for change, often with a mischievous disregard for the niceties of precedent, but perhaps even more because his lucid prose, full of short sentences and words of one syllable, made immediate sense to them and in their view made it quite unnecessary to read the judgements of his brethren regardless sometimes of the fact that theirs was the majority opinion and his the dissent.2 lord denning began life on the bench as a divorce judge, before moving to the king's bench division. he did not ever sit in the commercial court or what is today the companies court. however, his influence on the commercial law of his day was immense, through the changes which he spearheaded both in the general law of contract and those more specifically affecting commercial law and practice. although in the minds of most of us he is best remembered as the champion of the underdog the • 5j berwin professor emeritus of corporate law, cambridge i re-reading the piece, i do seem to have allowed myself to be somewhat carried away: "however arid the topic or hung-over the lecturer, however unsocial the teaching hour, one has only to mention the name to sense the quickening of interest; and the biros drive across the pages, desperate to ensure that not a syllable of wisdom is lost. and the lecturer, whether he endorses or dares to disown the opinions of the master he is quoting, rides on a cloud, and briefly joins the immortals" (1980) 32 king's counsel 29. 2 the appeal of these qualities is not confined to students. as a compiler of casebooks in the two areas covered by this paper, i have found myself, time and again, selecting passages from the denning judgement rather than those of his concurring colleagues, for reasons of sheer readability and not necessarily because his was in my view the best exposition of the law. 13 denning law journal consumer, the victim of bureaucracy, the deserted wife his judgements in the commercial area show that he was every much as keenly aware of the special concerns of business and the importance its practitioners attach to certainty, speed and the absence of technicality. in company law, his role was limited to a dozen or so cameo appearances, each of them memorable in itself, but not really sufficient to justify any claim that he has left his own mark on the subject. although in what follows i shall attempt to evaluate lord denning's contributions to my fields of the law topic by topic, i have chosen also to group the cases in such a way as to highlight as well some of the characteristics which have marked him out as someone out of the ordinary, as man and as judge, during his long spell in office. greatest above all of these qualities, i would say, has been the ability to sense a trend whose hour has come sometimes twenty years or more ahead of the rest of us, as events have so often shown.3 but coupled with this has been an uncanny awareness of just how far to go: change which is too radical or too abrupt runs the risk of being rejected by a world which is not ready for it.4 in my own view, two of the most important milestones in his distinguished career date from relatively early days. the first is the notorious case of l'estrange v. graucob ltd., in which the lady proprietor of a small-town teashop was held liable to pay in full for a machine which never worked properly because she had been conned into signing a document containing small print by which she waived all her statutory rights.s the judgement became known as "the canvassers' charter" and was subsequently hawked around county courts all over the country by unscrupulous sellers. i vividly remember lord denning confessing to a student audience that, to his embarrassment, he had been counsel for the successful plaintiff in l' estrange v. graucob and had been so shocked at the injustice of the decision that he had since spent much time and effort battling to obliterate the authority of that case and to create scope for the courts to cut down the 3 the most striking example of this is his dissenting judgement in candler v. crane, christmas & co. [1951] 2 k.b. 164. not only was his view vindicated a dozen years later by the house of lords in hedley byrne & co. ltd. v. heller & partners ltd. [1964] a.c. 465, but 27 years further on, when a later house of lords was poised to disown anns v. merton l.b.c. [19781 a.c. 628 and many of the cases which had followed it, no better basis could be found for a fresh start than the once-derided denning dissent of forty years before: see caparo industries pic v. dickman [1990] 2 a.c. 605 at 621-623, 636, 656-657. 4 we must all surely recall his disarmingly modest words in combe v. combe [1951] 2 k.b. 215 at 219: "much as i am inclined to favour the principle stated in the high trees case, it is important that it should not be stretched too far, lest it should be endangered." 5 [1934] 2 k.b. 394. 14 commercial & company law effect of unreasonable exemption clauses. 6 the second is his best-known ruling as a judge of first instance, high trees, not so much for what it decided, although that in itself has proved to be of immense significance, but because it set the pattern for so many of the innovations that were to come from his lively imagination: first, the perception of a legal need, a gap in the law, and a realisation that the time for change was ripe; then the identification of a slender thread of "authority" hidden in older case-law which ran contrary to the accepted precedents that appeared to stand in the way of reform; and finally the bold claim that the latter could be circumvented or disregarded, for reasons which are at first sight hard to justify and on further thought just as hard to dismiss.7 the importance of high trees in my view is that it showed our iconoclast hero that, given the will, there could usually be found a way, and illustrated a technique for introducing reform which he was to hone and perfect in the years to come. commercial law the innovator i recall an occasion when lord denning was asked to name one single achievement for which he would most wish to be remembered by posterity, and he replied: "the mareva injunction."s the mareva case itself was the second in the sequence but carries the greater weight because the first, nippon yusen kaisha v. karageorgis, appears not to have been fully argued.9 the issue was, of course, whether the court would, in the face of many decades of settled practice to the contrary, grant an injunction to restrain a defendant from moving assets out of the jurisdiction at a time when the plaintiff had not yet established his right to proceed against those assets by getting a judgement in his favour. in each case the court, headed by lord denning, ruled that its discretionary jurisdiction was wide enough to empower it to do so, and granted the injunction. but in the nippon case lord denning gave an added reason for making the change: the practice on the continent of europe allowed such orders, and the time had come for us to fall into line. over the next few years, lord denning was able to ensure that he was on the bench 10 on a number of occasions when the scope of the new 6 see infra n.22 & text. 7 central london property trust ltd. v. high trees house ltd. [1947] k.b. 130. 8 cf denning, the due process of law (butterworths, 1980) (hereafter "due process") at r.134: "the greatest piece of judicial law reform of my time." nippon yusen kaisha v. karageorgis [1975] 1 w.l.r. 1093; mareva compania naviera s.a. v. international bulkcarriers sa [1975] 2 lloyd's rep. 509. 10 "i ... have some say in the constitution of the court": due process at p. 7. 15 denning law journal procedure was discussed further: rasu v. perusahaan, ii when the issues were debated fully inter partes; the siskina,12 in which the new procedure was all but overthrown when his court was reversed by the house of lords; third chandris corporation v. unimarine,13 where the siskina was given a restricted interpretation and the mareva injunction largely salvaged; and other cases where it was confirmed that mareva relief lies against a defendant based in this jurisdiction, that it is available in a tort action for personal injuries, and so on.14 alongside the achievement of the mareva injunction must be ranked the anton piller order, which dates from the same period and which has had such a dramatic effect in the enforcement of intellectual property rights.15 by empowering an intending plaintiff on an application ex parte to search the premises of pirates and bootleggers without prior warning, they could be caught inflagrante delicto in possession oftheir illicit material before having any chance to get rid of it. lord denning proudly claims credit for his leading part in the cases which established this novel procedure. 16 perhaps the particular reason why lord denning ranks the establishment of the mareva injunction as his greatest achievement (apart from its importance in practice) is that the innovation came about entirely through the efforts of the judiciary and was established in the face of arguments on all sides (and open rebuke from the house of lords 17) that this was a matter that should be only dealt with by the legislature. but his reply was always that important reforms could not wait, and that if change was due he had a duty to do something about it. 18 and after the house of lords in miliangos adopted much the same approach to the question of awarding judgements in a foreign currency there was less reason for lord denning to feel any inhibitions about taking such a stance. 19 1\ rasu maritima s.a. v. perusahaan [1978] q.b. 644. 12 siskina (cargo owners) v. distos compania naviera s.a. [1979] a.c. 210 (c.a. and h.l.). 13 third chandris shipping corporation v. unimarine s.a. [1979] q.b. 645. 14 lord denning himself tells the full story in due process, part 4. 15 anton piller k.g. v. manufacturing processes ltd. [1976] ch. 55; cf ex parte island records ltd. [1978] ch. 122. 16 due process, at pp.123-130. 17 the siskina, supra n.12. 18 on more than one occasion he took his cue from a report of the law commission recommending reform, without waiting for action by the legislature: see, e.g. liverpool city council v.irwin [1976] 1 q.b. 319. his persistent attempts to introduce a remedy for the third-party beneficiary of a contract made between other parties, based on the law revision committee's recommendation of 1937, are another example: see denning, the discipline of law (butterworths, 1979) (hereafter "discipline") at p.289. his views were roundly condemned by lord simonds in midland silicones ltd. v. scruttons ltd. [1962] a.c. 446. 19 miliangos v. george frank (textiles) ltd. [1976] a.c. 443. (miliangos itself drew support from the court of appeal's earlier judgement in schorsch meier g.m.b.h. v. rennin [1975] 16 commercial & company law the internationalist and comparativist in the mareva developments, lord denning openly took the view that english law should keep in step with developments in other jurisdictions. and he was also astute to anticipate, far sooner than most of us, how extensively the "incoming tide" of european community law would find ways of permeating our traditionallaw.2o there are many instances in his judgements of his drawing on the laws of other countries to give inspiration or impetus to change which he considered was due.21 the campaigner of course, it was not always the case that lord denning succeeded in bringing about reform to the law by judicial means. his attempts to rewrite the law of mistake or to free contract law from the constraints of the doctrine of privity, for instance, did not receive wholehearted support. for more radical changes of this kind, nothing short of legislation is likely to be effective. but, as so often, he was simply ahead of his time in appreciating the need for reform; and it must be a source of some satisfaction for him to know that privity, for instance, did eventually come on to the law commission's agenda and that reform is in the air. in some cases, and most notably in regard to exemption clauses, his endeavours bore fruit while he was still on the bench. from being counsel in l'estrange v. graucob to seeing the unfair contract terms act 1977 on the statute-book was, for him, a long and tortuous journey; but he was able, in his last judgement in this area (the george mitchell case), to express satisfaction at the outcome and at the part that he and his fellow judges had played towards bringing it about.22 in this case he refers to the "secret weapon" (the "true construction of the contract") which, used "with great skill and ingenuity" could defeat any exemption clause which q.b. 416, in which lord denning and his brethren had "turned a blind eye" to house of lords authority (discipline at p.305).) 20 h.p. bulmer ltd. v. j. bollinger s.a. [1974] ch. 401 at 418. 21 see, e.g. trendtex trading corporation v. central bank of nigeria [1977] q.b. 529 at 555556, where he drew on the laws of several foreign countries in formulating a revised doctrine of sovereign immunity. 22 george mitchell (chesterhall) ltd. v. finney lock seeds ltd. [1983] q.b. 284. on appeal, when the ruling was affirmed by the house of lords, lord diplock paid a handsome tribute: "i cannot refrain from noting with regret, which is, i am sure, shared by all members of the appellate committee of this house, that lord denning m.r. 's judgement in this case ... is probably the last in which your lordships will have the opportunity of enjoying his eminently readable style of exposition and his stimulating and percipient approach to the continuing development of the common law to which he has himself in his judicial lifetime made so outstanding a contribution." [1983] 2 a.c. 803 at 810. 17 denning law journal would give rise to an unreasonable result. 23with the enactment of the unfair contract terms act 1977, "we reach, after long years, the principle which lies behind all our striving" the test of reasonableness to which recourse could be had openly under the statute rather than by the more devious means used up until then. judicial discretion and interventionism one does not need to study lord denning's judgements for long before discovering how strongly he felt the need for judges to have greater powers to intervene in a discretionary way in order to dispense better justice where the circumstances require it. the rigidity of many of the classifications established in the law was, to him, a tiresome obstacle; and so were many other traditional constraints, such as the necessity in matters of contract to have regard to the presumed intention of the parties. so we see him giving short shrift to the distinction between terms and "mere" representations;24 rejecting the "officious bystander" test as a yardstick for the implication of additional terms;25 bringing equitable doctrines in to supplement the common-law rules as to common mistake26 and waiver27 and freely using the rules of construction so as to make a contract to supply water at fixed rates for an unlimited period (which the ravages of inflation had made unprofitable) subject to an implied term that it was determinable on reasonable notice.28 judicial techniques which enable the court to dispense discretionary justice, such as the use of the power to imply terms into a contract, can obviously strike at the very foundations of contract law if used too freely or irresponsibly. although it must have come hard for him, this does seem to be a lesson which lord denning learnt early on in his dealings with commercial transactions, at least in the area of frustration. in the british movietonews case lord denning, soon after his elevation to the court of 23 [1983] q.b. 284 at 297. 24 see generally discipline at pp.270-276. 25 liverpool city council v. irwin [1976] 1 q.b. 319: see discipline at pp.37-40. but in this judgement he was held to have strayed too far from orthodoxy by the house of lords (who, however, upheld the court of appeal's actual decision on the point): [1977] a.c. 239. 26 solle v. butcher [1950] 1 k.b. 671. 27 in discipline at pp.209-214, lord denning describes how the high trees principle was developed, particularly in relation to commercial transactions, so as first to get rid of the necessity for writing under the (then) sale of goods act (plasticmoda societa per azioni v. davidsons (manchester) ltd. [1952] 1 lloyd's rep. 527) and, secondly, to overcome the limitations of the common law doctrine of waiver by eliminating the need for a party to have actual knowledge of a breach of contract before the doctrine could apply (panchaud freres s.a. v. etablissements general grain co. [1970] 1 lloyd's rep. 53 "probably the case most frequently cited in the commercial court, although the text-book writers hardly notice it"). 28 staffordshire a.h.a. v. south staffordshire waterworks co. [1978] 1 w.l.r. 1387. 18 commercial & company law appeal, sought to restate the doctrine of frustration by saying: "in these frustration cases, ... the court really exercises a qualifying power ... in order to do what is just and reasonable in the new situation.,,29 the house of lords would have none of this, and not only reversed the court below, but administered a sharp rebuke, emphasising that "no court has an absolving power." although in other contexts lord denning was often not deterred from continuing to press a heterodox line of thought despite the displeasure of the lords, we do not see in his later cases any attempt to reassert the "just and reasonable" basis for the doctrine of frustration in commercial cases.30 indeed, generally speaking,3] he showed a good deal of restraint in not seeking to erode the principle of freedom of contract in transactions between commercial parties, and a keen appreciation of the businessman's priorities and the traditions of the commercial court.32 statutory interpretation hand-in-hand with lord denning's concern to see greater scope for discretionary intervention in many areas of law was his enthusiastic endorsement of a purposive approach towards statutory interpretation. he tells about it in the discipline of law. 33for this he was roundly condemned by the house of lords: what he was doing was" a naked usurpation of the legislative function under the thin disguise of interpretation.,,34 but lord denning remained unrepentant and, with a degree of backing from the report of the renton committee,35 continued to take the same approach in later years. company law corporate personality as noted above, lord denning's reported company law judgements are few in number but even so, in many ways memorable. remarkably, one or two passages continue to be cited perhaps for the sheer vividness of his prose even though they are now considered as being of doubtful authority. foremost among these are observations which he made in the 29 british movietonews ltd. v. london & district cinemas ltd. [1951] 1 k.b. 190 (c.a.); [1952] a.c. 166 (h.l.). 30 see, e.g., intertradex s.a. v. lesieur torteaux s.a.r.l. [1978] 2 lloyd's rep. 509. 31 not, however, in the battle to have unfair exemption clauses outlawed: commercial considerations seem to have taken second place in cases like harbutt's "plasticine" ltd. v. wayne tank & pump co. ltd. [1970] 1 q.b. 447 and photo production ltd. v. securicor transport ltd. [1978] 1 w.l.r. 856. 32 see due process at p.135, and the cases cited supra n.30 and infra n.55. 33 discipline at pp.9-22. see also phonogram ltd. v. lane, infra n.43 & text. 34 nimmo v. alexander cowan & sons ltd. [1968] a.c. 107 at 130. 35 the preparation of legislation, cmnd. 6053 (1975), para. 19.2. 19 denning law journal context of "lifting the veil" of incorporation. of course, this is just the kind of area tailor-made for discretionary intervention in the broader interests of "justice" that he as a judge found irresistible. no-one would quibble with his condemnation of dr. wallersteiner's manipulation of his liechtenstein companies: "i am quite clear that they were just the puppets of dr wallersteiner. he controlled their every movement. each danced to his bidding. he pulled the strings. no one else got within reach of them. ... i am of the opinion that the court should put aside the corporate veil and treat these concerns as being his creatures.,,36 in littlewoods mail order stores ltd. v. mcgregor lord denning declared with gusto that "the courts can, and often do, pull off the mask" of incorporation?7 but it was in d.h.n. food distributors ltd. v. tower hamlets l.b. c.38 that the disregard of the corporate veil reached an alltime high, from which we can now see courts in all the commonwealth jurisdictions in steady retreat.39 here we had a group ofthree companies which "might be called the 'three in one.' alternatively, the 'one in three.' one group of three companies." lord denning, drawing support from a "general tendency to ignore the separate legal entities of various companies within a group, and to look instead at the economic entity of the whole group," perceived by professor gower,40 declared that the three companies should be treated as one so that they would not be deprived of statutory compensation for disturbance. twenty years on, this decision is in universal disfavour, but it continues to hold a key place in the textbooks and students' first-term essays, and even to be cited hopefully (but invariably in vain) by counsel. we see similar graphic language in his exposition of the "alter ego" doctrine in terms which, drawing on a parallel with the human body, contrasted a company's "brain and nerve centre" with the "hands which 36 wallersteiner v. moir [1974] 1 w.l.r. 991 at 1013. the niceties of the principle of corporate personality were twice ignored by lord denning (citing dicey and maitland) in willis v. association of universities of the british commonwealth [1965] q.b. 141, once to accord quasi-corporate status to the unincorporated association and, secondly, to identify that body with a chartered company which later took over its functions. 37 [1969] 1 w.l.r. 1241 at 1254. 38 [1976] 1 w.l.r. 852 at 857, 860. 39 see, e.g. woolfson v. strathclyde regional council 1978 s.l.t. 159; adams v. cape industries plc [1990] ch. 433; re securitibank ltd. (no.2) [1978] 2 n.z.l.r. 136 at 158; industrial equity ltd. v. blackburn (1977) 137 c.l.r. 567. 40 modem company law, (sweet & maxwell, 3rd ed., 1969) at p. 216. 20 commercial & company law hold the tools,,41 -language which, once again, despite having been given a narrow interpretation by the house of lords,42 continues to occupy a major place in any exposition of the subject. preincorporation contracts in phonogram ltd. v. lane an english court was asked for the first time to give an interpretation to the e.c. first company law directive's provision dealing with contracts purportedly made on a company's behalf prior to its incorporation.43 this provision had been incorporated into our domestic law by the european communities act 1972, section 9(2). the choice was between giving a restrictive or a purposive meaning to the statutory text the first having some support from the french version of the directive and the second from our own act. lord denning was able to achieve a satisfying "double" by taking the purposive line (as was his wont) and flying the patriotic flag at the same time, declaring his preference for the english rather than the french text. the minority shareholder in scottish co-operative wholesale association ltd. v. meyer, this time from the house of lords, lord denning once again had an opportunity to launch a new piece oflegislation on its way with a purposive shove.44 this was the first time a case (at least, a reported case) had come before the court on section 210 ofthe companies act 1948 (now section 459 of the 1985 act) which empowers the court to grant discretionary relief where minority shareholders have been the victim of "oppression" or "unfairly prejudicial conduct." given an underdog plaintiff and an openended discretion, it is not any great surprise that he went out of his way to endorse the new jurisdiction in enthusiastic terms, and in the case itself see the minority shareholders fully compensated. unfortunately, his junior brethren who sat in the chancery courts in the sixties and seventies did not share his empathy with aggrieved minority shareholders or his enthusiasm for unfettered discretionary powers, and the consequence was that section 210 failed in its purpose and had to be totally recast in 1980. mr. moir, the minority shareholder in the two wallersteiner cases, also received generous treatment at the hands of lord denning.45 the first, in which wallersteiner endeavoured to stifle inquiries into the management of his corporate group by issuing a gagging writ, is best known for lord 41 h.l. bolton (engineering) ltd. v. t.j. graham & sons ltd. [1957] 1 q.b. 159 at 172. 42 tesco supermarkets ltd. v. nattrass [1972] a.c. 153. 43 [1982] q.b. 928. 44 [1959] a.c. 324. 45 wallersteiner v. moir [1974] 1 w.l.r. 991; wallersteiner v. moir (no.2) [1975] q.b. 373: see supra n.36. 21 denning law journal denning's observations on lifting the corporate veil, referred to above. in the second, when moir had at last got a foot across the threshold and been able to file pleadings to conunence a derivative action, his impecuniosity was proving a major obstacle. the court of appeal gave its blessing to the introduction of the "wallersteiner order," by which the company which is nominally a defendant to the proceedings but in reality a surrogate plaintiff is ordered to meet the costs of the shareholder on whose initiative the action has been brought. indeed, lord denning himself would have gone further, and made the shareholder's derivative suit a special exception to the rule (of which he himself was a strong supporter) which has traditionally opposed the right of counsel to appear on a contingency-fee basis. agency and the interested director ever since royal british bank v. turquand in 1856, company law has had rules which relieve persons who deal with a company from being under any obligation to check whether the company's internal procedures have been duly adhered to.46 but these traditional rules have no application where the person concerned is an "insider," such as a director, who can at least in theory check this sort of thing out for himself. in helyhutchinson v. brayhead ltd. a deal had been done between brayhead's chairman (from all accounts, a dominant, larger-than-life personality) and hely-hutchinson in which the former had shown scant regard for constitutional proprieties.47 the company, pleading that the chairman had exceeded his authority, sought to disown its obligations to helyhutchinson, who appeared not to be protected by turquand because he had recently been made a director of brayhead, and so was an insider. moreover, he himself had not disclosed his interest to the board, as both the companies act and brayhead's articles required. despite these and other seeming obstacles, ways were found by lord denning and his brethren to distinguish the earlier authorities so that the deserving helyhutchinson was not left whistling for his money. the difference here, it was said, was that hely-hutchinson was not acting as a director in this particular transaction: he was on the other side of the negotiating table. so regard was had to the realities of the situation rather than to the technical fact that the man happened to be a director an argument which quite certainly would not have swayed the house of lords which decided the leading case twenty years earlier.48 the non-disclosure point, too, was held not to stand in hely-hutchinson's way, lord denning advancing a view which was not shared by a later court of appeal in guinness pic v. 46 (1856) 6 e. & b. 327. 47 [1968] 1 q.b. 549. 48 see morris v. kanssen [1946] a.c. 459. 22 commercial & company law saunders,49 but accepted as correct when that case went to the house of lords.5o d. t.l. inspectors' inquisitorial powers in two cases involving mr. robert maxwell, later to become a figure of international notoriety, lord denning appears in what at first sight is a surprisingly hawkish light; but i believe that we can understand the reason for this.51 mr. maxwell and his fellow-directors had been made the subject of an investigation by inspectors appointed by the secretary of state, and they had refused to answer questions unless they were first given assurances that, in effect, the proceeding would be conducted as if it were a judicial inquiry. they received little sympathy from lord denning's court: the inspectors were expected to act fairly, but were not to be constrained by rules of law. in effect, the directors were sent packing and told to face up to their responsibilities, like so many schoolboys. i think that in taking this view lord denning would have been all too conscious of the exposed position which he had found himself in some years previously in the profumo inquiry, where in a rather similar way he was required to hold an inquisition following a major public scandal, without any clear directions as to how the matter should be handled. his report would inevitably involve findings, possibly of a criminal nature, against persons who might reasonably protest that they had not had the protection of a criminal trial. he had to get on with the task as best he could, keenly aware that whatever he did was bound to attract criticism; and so understandably he identified with the d.t.i. inspectors rather than with the citizens summoned to appear before them. role of the company secretary when the precedents stand in the way of change, the bold spirit must sometimes confront them head on. faced on the one hand with a fraudulent company secretary who had exposed his company to commitments in excess of his authority, and on the other with precedents to the effect that "a secretary is a mere servant; his position is to do what he is told, and no person can assume that he has any authority to represent anything at all,••52 lord denning's response was: ''times have changed. a 49 [1988] 1 w.l.r. 863. 50 [1990] 2 a.c. 663. (failure to comply with the statutory obligations of disclosure has criminal sanctions but no civil consequences.) 5\ re pergamon press ltd. [1971] ch. 388; maxwell v. d.t.i. [1974] q.b. 523. see also norwest /lolst ltd. v. secretary of state for trade [1978] ch. 201, in which the secretary of state was held not bound to observe the rules of natural justice in determining whether or not to appoint inspectors. 52 barnett v. south london tramways co. (1887) 18 q.b.d. 815 at 817. 23 denning law journal company secretary is a much more important person nowadays .... he is no longer a mere clerk. he regularly makes representations on behalf of the company and enters into contracts on its behalf which come within the day-to-day running ofthe company's business. so much so that he may be regarded as held out as having the authority to do such things on behalf of th ,,53ecompany. conclusion the company law cases to which i have referred are typical illustrations of lord denning's contribution to the law of his and our time. company law has its roots in the nineteenth century and has been served by chancery judges largely of a conservative and risk-averse disposition. there was scope for a breath or two of fresh air, and he took the opportunity to give a lead in the relatively few cases that came before him. in commercial law, although some of his judgements have not escaped criticism, 54 it is generally true to say that he was keenly appreciative ofthe important part that english law, with its laissez-faire traditions, continues to play in the world of merchandising and shipping, banking and insurance, and his rulings commonly reflect this awareness.55 and if, of all his contributions, he himself would single out the mareva injunction to have as a memorial, i am sure that few practitioners in the commercial court would wish to disagree. 53 panorama developments (guildford) ltd. v. fidelis furnishing fabrics ltd. [1971] 2 q.b. 711 at 716. 54 see, e.g. united dominions trust ltd. v. kirkwood [1966] 2 q.b. 431 (what is a bank?); van lynn developments ltd. v. pelias construction co. ltd. [1969] 1 q.b. 607 (notice of assignment). 55 see, e.g. the intertradex case, supra n.30 (no frustration of commodity sale); teheraneurope ltd. v. s.t. belton (tractors) ltd. [1968] 2 q.b. 545 (implied terms as to quality); trans trust s.p.r.l. v. danubian trading co. ltd. [1952] 2 q.b. 297 and pavia & co. s.p.a. v. thurmann-nielsen [1952] 2 q.b. 84 (opening of credit); arab bank ltd. v. ross [1952] 2 q.b. 216 (irregular indorsement); british crane hire corpn. ltd. v. ipswich plant hire ltd. [1975] q.b. 303 (incorporation of usual trade terms). 24 restraint of trade during and on the termination of a contract of employment *lg.c. stratton i. introduction and definition once the pmties have reached an agreement the principle purpose of contract law is to enforce such an agreement and impose penalties on any party in the event of their breach of the contract. this concept applies to contracts of employment i with the exception that where a covenant has been imposed on an employee by an employer restricting the activities of the former during the course of his employment or on the termination of his contract of employment the doctrine of restraint of trade will prima facie render such covenant void on the grounds that it is contrary to public policy and it will only be enforceable if it is reasonable.2 ' the doctrine is therefore, anomalous in the sense that it impinges on the common law principle of freedom of contract, although conversely, the ultimate object of the restraint of trade doctrine is to allow the party subject to the covenant to enter into contracts with third parties despite contractual restrictions against such a course of action, i, e. to allow freedom of trade. yet in another • solicitor, i esso petroleum ltd. v, harpers garage (stourport) ltd. [1968] a.c. 269 (h.l.), it should be also be noted contracts of employment can take several forms ranging from lengthy sophisticated service agreements for directors and senior managers to an exchange of letters for junior employees, 2 nordenfelt v, maxim nordenfeft guns and ammunition [1894] a.c, 535 at 565per lord macnaghten: "reasonable that is, in reference to the interests of the parties concerned and reasonable in reference to the interests of the public, so framed and so,guarded as to afford adequate protection to the party in whose favour [they are] imposed, while at the same time", in no way injurious to the public," 107 denning law journal sense all contracts restrain trade to some degree by preventing the parties to an agreement from dealing with other parties in relation to the subject matter of a transaction once it has been entered into. these apparent conceptual dichotomies have given rise to difficulties in defining covenants in restraint of trade. in esso petroleum co. ltd. v. harpers garage (stourport) ltd., lord reid stated that he "would not attempt to define the dividing line between contracts which are and contracts which are not in restraint of trade." 3 nevertheless, judicial attempts have been made to define the doctrine and in particular, by lord justice diplock in petrofina (great britain) ltd. v. martin: "a contract in restraint of trade is one in which a party (the covenantor) agrees with the other party (the covenantee) to restrict his liberty in the future to carryon trade with other persons not parties to the contract in such manner as he chooses." 4 in the context of an employer and employee this definition envisages a negative covenant preventing the employee from working for a third party rather than a positive obligation to work only for the one employer. 5 restraint covenants can therefore, restrict an employee from competing directly with business of the employer, but can also operate to protect confidential information, or restrict an employee's personal activities so far as they impinge on the effective running of the employer's business or the requirements of a third party. apart however from the theoretical aspects of the doctrine of restraint of trade, its application in practice has important implications for an employer and employee. these concerns and the evolution of the doctrine are evidenced by the weight of recent case law on the topic. ii. the concept of interest 3 supra.n.l at 298. 4 [1966] ch.146 at 180. the definition was accepted by lord hodson in esso petroleum co. ltd. v. harpers garage (stourport) ltd. supra.nl at 317. 5 see whitwood chemicals co. v. hardman [1891] 2 ch. 416 where the court refused an injunction on the grounds that there was no negative covenant. see also paul goulding "injunctions and contracts of employment: the evening standard doctrine" (1990) 191.l.j. 98. 108 restraint of trade the concept of interest, when applied to restraint covenants, falls under two main headings, which apply not only to employment contracts, but also other contractual circumstances such as a restraint covenant imposed on the vendor of a business; a retiring partner; or a former shareholder under a joint venture agreement. accordingly such covenants must be reasonable in the interests of both the public and the parties concemed.6 the reasons for restraint covenants on the first ground of public interest, both during and after employment, arise as they are anti-competitive; restrict the mobility of labour; and militate against full employment all, of which are fully justifiable from both an economic and social point of view. 7 however, that is not to say that such covenants are not without their jurisprudential problems. the courts have tended to treat the concept of public interest with circumspection because of its wide and general nature which can create uncertainty. 8 one cause for such uncertainty is that the courts have little or no evidence as to what constitutes public interest. it can, therefore, be argued that the matter is best left to the legislature which is better equipped to deal with these social, political and economic issues. 9 lastly, where contracting parties have entered into a binding agreement at arm's length, such a contract should be enforceable without the possibility of interference arising as a result of the vagaries of the doctrine of public interest.lo the reluctance of the courts to become involved with the public interest concept is supported by the lack of case law on the topic. one of the few examples is wyatt v. kreglinger, where an employee aged sixty had been 6 see supra. n.2. 7 for a discussion as to whether the present legal rules on restrictive covenants in contracts of employment are economically efficient see michael 1. trebilcock, the common law of restraint qf trade: a legal and economic analysis, (sweet & maxwell, london, 1986), at 142. 8 see richardson v. mellish [1824], 2 bing. 229 at 252 per burroughs j. "public policy is a very unruly horse, and once you get astride it you never know where it will carry you. it may lead you from the sound law. it is never argued at all but when other points fail." 9 see richardson v mellish ibid. at 242 per best c.j."let that doubtful question of policy be settled by that high tribunal namely, the legislature, which has the means of bringing before it all the considerations that bear on the question." 10 for further discussion of the problems of public interest see 1.d. heydon, the restraint of trade doctrine, (butterworths, london, 1971) at 270ff. 109 denning law journal promised a pension by his employer provided he did not take up a competing trade on his leaving. ii in an unusual reversal of roles the employee sued for his pension and the employer claimed the restraint was unreasonable. the court held the covenant to be unreasonable as it would deprive the country of the services of a sixty year old man who was competent to work. with early retirement and ageism now so prevalent it is doubtful whether the court would reach the same conclusion today. it is, therefore, "the interest of the parties" that has drawn the attention of the courts and given rise to the recent case law; particularly in regard to the employer having a "proprietary interest" to protect. 12 as an employee is an agent of the employer, there is no need for a covenant not to compete with the employer, or disclose confidential information during (as opposed to after) the period of employment as this will be implied 13 although it is usual for an appropriate clause to be inserted in a service agreement. however, trade secrets and employer know-how (as opposed to employee know-how and special skills) are proprietary interests which require protection after employment has ceased.14 the courts have resorted to both "philosophical" 15 and "psychological" tests. 16 11 [1933] 1 k.b. 793 (ca). see also thomas cowan & co. v. orme [1960] 27 m.l.1. 41 (singapore h.c.); bull v. pitney-bowes ltd [1966] 3 all e.r. 384. for further discussion of public interest" see michael j. trebilcock, supra.n.7 at 106ff. 12 see herbert morris ltd. v. saxelby [1916] 1 a.c. 688 at 710 per lord parker "the reason, and the only reason, for upholding such a restraint on the part of the employee is that the employer has some proprietary right, whether in the nature of a trade connection or in the nature of trade secrets, for the protection of which restraint is having regard to the duties of the employee reasonably necessary." for further discussion of "the parties interests" see michael j. trebilcock, supra.n.7 at 79. 13 faccenda chicken ltd. v. fowler [1986] r.c.r. 297. for the factors to determine whether any particular item of information falls within the implied term so as to prevent disclosure of information by an employee after his employment has ceased, see the remarks of neill l.j. at 310 -311. for an earlier case, see hivac ltd. v. park royal scientific instruments ltd. [1946] ch. 169 (c.a.). 14 see cross 1. in printers and finishers ltd v. holloway [1964] 3 all e.r. 731 at 7360. is see herbert morris v saxelby supra.n.12 at 714 per lord shaw "trade secrets, the names of customers, all such things which in sound philosophical language are denominated objective knowledge these may not be given away by a servant; they are his master's property. on the other hand, a man's aptitudes, his skill, his dexterity, his manual or mental ability all those things which in sound philosophical language are not objective, but subjective they may 110 restraint of trade however, although guidance may be obtained from these abstract concepts, each case will have to be decided upon its own facts, which can give rise to practical uncertainties and litigation. similar uncertainties can arise in regard to the reasonableness of a post employment restraint covenant in respect of the period of time during which it is to apply and the geographic area over which it is to operate. iii. restraint covenants during employment (a) application of the doctrine the initial question arises as to whether the doctrine of restraint of trade will apply to covenants arising during the course of employment. specific authorities on this point are scant, although there are early decisions to support the proposition that the doctrine does not apply to "in employment" covenants.17 however, the position was clarified in a. schoeder music publishing co. ltd. v. macauley when it was confirmed that the doctrine applied to restraint covenants which operated during employment, as was the case with those taking effect after employment had ceased.18 (b) "garden leave agreements" "garden leave" or "sterilisation" covenants arise when an employee terminates his employment in order to work for a competitor; or alternatively the employer terminates the contract. in such circumstances the employer will require the employee to remain uninvolved with the competitor for as long a and they ought not to be relinquished by a servant; they are not his master's property." 16 see herbert morris ltd. v. saxelby [1916] 1 a.c. 688 at 703-704 per lord atkinson"the respondent cannot, however, get rid of impressions left upon his mind by his experience in the appellant's works; they are part of himself." 17 see erhman v. bartholomew [1898] 1 ch. 671; rely-a. bell burglar and fire alarm co. ltd. v. eisler [1926] i ch. 609; and warner bros pictures inc. v. nelson [1937] i k.b. 209. 18 [1974] 1 w.l.r. 1308. the covenant provided that the plaintiffs engaged the exclusive services of the defendant for the five year term of the service agreement. on the facts the covenant was held void. see the remarks of lord reid at 1314 "normally the doctrine of restraint of trade has no application to such restrictions (i.e. to work exclusively for an employer for a period): they require no justification. but if contractual restrictions appear to be unnecessary or to be reasonably capable of enforcement in an oppressive manner, then they must be justified before they can be enforced." iii denning law journal period as possible. a "garden leave" provision in a service agreement will therefore, require the employee to serve out his notice during which period he will receive his salary and benefits but will not undertake his normal duties. instead he will be required to remain at home, thus preventing him from making his talents and "know-how" available to his new employer, but allowing time for his possible successor to become established. technically therefore, although a notice has been served on the employer by the employee (or vice versa) and the contract terminated at a future date the employee will nevertheless be working out such notice, and as such the "garden leave" provisions will take effect during the course of his employment.19 the leading case on this type of clause is evening standard co. ltd. v. henderson, where the defendant was required to give one year's notice to terminate his employment and he was obliged not to work outside the company without the permission of his employer. 20he was offered a job with a competitor whereupon he gave two months' notice of termination. the plaintiff brought an action to restrain him from working during his twelve months' notice period under the agreement and offered to pay his salary and benefits during that period, irrespective of whether he undertook his duties at work. the court of appeal granted the plaintiffs an injunction giving rise to "the evening standard doctrine,,21 and finding there was no serious issue as to liability. such a clause is particularly open to abuse where there is a long period of notice under a service agreement. 22 a number of factors arise in connection with the doctrine. a court will not normally order an employee to comply with his obligations under a contract of employment and will not grant an injunction, the effect of which would amount 19 see the italicised remarks of simon brown l.j. inja. mont (uk.) ltd. v. mills [1993] i.r.l.r. 172 at 176, para. 33. 20 [1987] i.c.r. 588; [1987] i.r.l.r. 64, (c.a.). 21 see further paul goulding, supra.n.5. 22 the evening standard decision was confirmed in provident financial group p.l.c v. hayward [1989] 3 all e.r. 298; [1989] i.r.l.r. 84 (c.a.); [1989] i.c.r. 160 although dillon l.j. expressed caution at 165 "the practice of long periods of "garden leave" is obviously capable of abuse. it is a weapon in the hands of the employers to ensure that an ambitious and able executive will not give notice if he is going to be unable to work at all for anyone for a long period of time." 112 restraint of trade to specific performance, 23 and the enforcement of such a clause would appear to be an exception to this rule. the court will not therefore, indirectly order specific performance by granting an injunction, the effect of which would be to make the defendant employee perform the contract, or be forced into "idleness and starvation." in the evening standard case, the plaintiffs had effectively disposed of the forced starvation argument as they had offered to pay the defendant's salary and benefits, thus there was no question of him starving. the starvation argument for not enforcing a "garden leave" clause is also further weakened as no defendant would starve during a notice period under the present welfare state, although their standard of living may be severely reduced. a more compelling argument against indirect specific performance by way of injunction arises where the defendant had been reduced to idleness and as a result has no duties to perform and cannot, therefore, exercise his skills and talent. in such circumstances, it may be argued that the covenant is a restraint of trade and unenforceable. 24 in terms of the construction and interpretation of "garden leave" agreements are the words "idleness" and "starvation" conjunctive or disjunctive? if the former, then doubts would arise as to the validity of the covenant as an employee will inevitably remain idle, and as argued above that may be considered a restraint of trade. if the latter, then as both conditions would not be required to be satisfied the employee's inevitable idleness would not prevent an injunction from being granted.25 of more fundamental importance is whether an employer can lawfully prevent an employee from working, and conversely whether an employee has an implied right to work. if such an implied right was based on contract there would seem to be no reason why it should not be expressly excluded. if however, as a matter of public policy, each individual has a specific right to work such a clause may be void as being in restraint of trade. these issues have not yet been fully canvassed before the courts. if, however, "garden leave" agreements are to be enforced, it does increase the bargaining 23 warren v. mendy [1989] 1 w.l.r. 853; [1989] i.c.r. 525. this is the conclusion of a long line of cases commencing with lumley v. wagner [1852] i de g.m. & g. 604. for statutory authority see section 236 of the trade union and labour relations (consolidation) act 1992. 24 the point was recognised by taylor l.j .in provident financial group p.l.c. v. hayward supra.n.22 at 170 but as the notice period was only three months there was no question of the defendant's skills atrophying and the matter was left undecided. 25 see per taylor l.j. ibid.; also paul goulding, supra.n.5 at 106. 113 denning law journal power of an employer when confronted by a dissatisfied employee who wishes to leave and whose future career may be placed in jeopardy. these and other matters may yet render such agreements void under the doctrine of restraint of trade, particularly where the notice period is exceptionally long.26 are damages (as opposed to an injunction) a possible or adequate remedy for an employer whose employee is in breach of a "garden leave" agreement? the court, as in the evening standard case, may accept that a plaintiff will suffer damage but find it impossible to decide the quantum. 27 the courts have, therefore, considered the concept of damages as being an inadequate remedy and have to date assumed that it will not be a viable alternative or addition to an injunction.28 however the possibility has arisen that the courts may in future be willing to reassess the question of damages as a suitable remedy in certain circumstances. 29 for example, if a stockbroker left his employer with a list of his private clients, it would be possible to ascertain the commissions received by his new employer from these "poached" clients over a specified period of time. such a period would be defined by reference to the time limit imposed by a post employment restraint covenant. the suitability of this type of assessment would depend on the facts of each case, but does serve to illustrate that "garden leave" agreements are still in a state of evolution and subject to future scrutiny by the courts. a further consideration is the length of notice which an employee has to serve, as the longer the notice the less chance there is of the court enforcing the agreemeneo a court may, however, impose an injunction for only part of the contractual notice period rather than the whole, where the whole period is not absolutely necessary for the protection of the employer. 31 directors' service 26 for a discussion of "garden leave" agreements and a precedent of such a clause see sean nesbitt, "employee restraints: maximising contractual protection" [1996] practical law for companies, vol vn, no.8, at 33ff. 27 supra.n.20 at 594b per lawton l.j .. 28 warren v. mendy supra.n.23 at 868 per nourse l.j .. 29 ibid.; also paul goulding, supra.n.5 at 104. 30 see provident financial group p.l.c. v. hayward supra.n.22 when there was no real prospect of serious damage to the plaintiffs from the defendant working for his new employers before the expiry of his notice period. 31 gfi group inc. v. eagles/one [1994] i.r.l.r. 119. 114 restraint of trade agreements may be for a maximum term of five years 32 or include lengthy periods of notice and the enforceability of a "garden leave" covenant in such circumstances should be carefully considered when drafting the covenant and lengthy periods of notice avoided. in practice, however, the notice periods for both parties are usually the same. long periods of notice tend to favour the employee as if his employment is terminated he will receive "a golden handshake" by way of compensation. a long notice period may also be acceptable to an employer who wishes to retain the services of a particularly valuable employee. alternatively, a young ambitious employee may only require a short notice period in case an opportunity to further his career arose, and he wished to take up an alternative appointment as soon as possible. in the strict context of "garden leave" agreements, however, a relatively short period of notice is desirable in the interests of the employer to ensure the covenant is enforceable as well as reducing compensation in the event of termination. nevertheless, an immediate conflict of interest can arise between the parties. a "garden leave" provision can also be a relevant factor in determining the enforceability of a post employment restraint covenant. in credit suisse asset management ltd. v. armstrong and others, the "garden leave" covenant applied for six months fonowed by a further restriction of six months after the termination of employment. 33 the court held the latter covenant was enforceable as there was no basis for set 'off between 'the "garden leave" clause as against the post employment covenant. ftirthennore, the court emphasised the individual's right to exercise his ,skills and a "garden leave" agreement, perhaps substantially ih excess:of'ci year, may accordihglyrender any post restraint covenant une'nforceable.34 . . in addition for a "garden leave" agreement to be enforceable, the employer must have a proprietary interest to protect. usually, this will mean the employee is proposing to take up employment with a direct competitor. an element of-the emp~oyer',spn;>prietary:interest and goo~will is money made available to the 32 see ~.ec;tion319.ofthe coippanies act 1985: periods in excess of five years have to be approved at a ge~~rai m.ee'ting.' 33 ri 99611.r.l.r. 450. 34 ibid. per neill l.j. at 455, para. 44. 115 denning law journal departing employee during his fonner employment. 35 even, however, if an employee is paid his full salary and benefits during his notice period, a "garden leave" clause will not be enforceable if it is geographically too wide, or the period of restraint too long.36 in conclusion to avoid the various areas of uncertainty raised by the recent case law, a service agreement should contain a "garden leave" clause which (inter alia) provides that each party can give to the other a requisite period of notice to tenninate the agreement; the employee must work exclusively for the employer; the employer can require the employee to cease working on tennination of the agreement. in addition the employer must have a proprietary interest to protect. in the interests of the employer only the notice period must not be too lengthy so as to protect both the "garden leave" covenant and any post employment restraint covenant; and the employer should be under an obligation to pay to the employee his full pay and benefits during the "sterilisation" period; but under no obligation to provide work. 37 clauses of this type are, however, a relatively recent innovation and some of the matters referred to above may be subject to reexamination and found wanting on the grounds that they offend the interests of the parties and/or public policy and the doctrine of restraint of trade. iv. post employment restraint covenants (a) the distinction between post employment and post business restraints it has long been established that the doctrine of restraint of trade applies in regard to two areas of commercial activity. first, when imposed by an employer on an employee after the employment of the latter has ceased. 38 secondly, when a vendor sells his business and after completion of the sale he is subject to a 35 for example euro brokers ltd v. rabey [1995] lr.l.r. 206, £10,000 per year entertainment expenses; gfi group inc. v. eaglestone supra.njl at 121, para. 15, £59,616 entertainment expenses. 36 see provident financial group p.l.c. v. hayward supra.n.22 per dillon l.j. at 167 para. dff. 37 there are other standard conditions to be included. for a precedent of a "garden leave" clause and a discussion of the topic generally see sean nesbitt, supra.n.26. 38routhv . .jones [1947] 1 all e.r. 758 (c.a.); mason v. provident clothing and supply co. ltd. [1913] a.c. 724. 116 restraint of trade covenant restricting him from setting up in competition with the purchaser?9 two questions arise. are there different criteria as to enforceability applicable to the two sets of circumstances? alternatively, if different criteria apply which set will be relevant in the event of an employee who is also the vendor of a business, i.e. the party concerned is acting in a dual capacity? these matters arose in allied dunbar (frank weisinger) ltd. v. weisinger, where a self employed salesman of financial services sold his practice to a subsidiary of allied dunbar, and thereafter became a consultant for a period of two years, after which he agreed not to compete with the parent company or a subsidiary of allied dunbar.40 the court held the covenant in the contract of sale was to be tested in accordance with the principles as between vendor and purchaser.4] mr.j.millet summarised the attitude of the courts to the two different types of covenant and their rationale as follows: "it is well settled that in considering the validity of covenants in restraint of trade very different principles apply where the covenant is taken for the goodwill of a business sold by the covenantor to the covenantee. in the former case (although not in the latter) it may be legitimate to protect the covenantee from any competition by the covenantor and the courts adopt a much less stringent approach to the covenant recognising that the parties who negotiated it are the best judge of what is reasonable between them. the inclusion of such covenants may be necessary to enable the covenantee to realise a proper price for the goodwill of his business and by upholding the covenant the court may well facilitate trade rather than fetter it.,,42 39 nordenfelt v. maxim nordenfelt guns and ammunition co. supra.n.2; herbert morris ltd. v. saxelby supra.n.12; &so petroleum ltd. v. harpers garage (stourport) ltd supra.n.l; gledhow autoparts ltd. v. delaney [1965] 1w.l.r. 1366per sellers lj. at 1372. the doctrine can also apply on cessation of self employment, e.g. on the dissolution of a partnership; or to directors of a joint venture company. as to the latter see dawnay day & co. ltd. v. de braconier d 'alphen [1997] l.r.l.r. 442 (c.a.). 40 [1988] l.r.l.r. 60. 4] ibid. at 64, para.21"... these covenants as taken for the protection of the goodwill of the business sold to the plaintiffs by the defendants, rather than for the protection of the plaintiffs present and future business as employer..." 42 ibid at 64 para 20. see also systems reliability holdings v. smith [1990] i.r.l.r. 377 and alliance paper group p.l.c. v. prestwich [1996] l.r.l.r. 25. 117 denning law journal (b) criteriafor validity a clause in an employment contract restricting an employee's activities after termination of his employment is prima facie void as being in restraint of trade, unless the employer can establish that he has a proprietary interest which needs protection, and also any restraint is reasonable in the interest of both parties and the public at large. 43 accordingly, an employer cannot, therefore, prevent his former employee competing against him unless he has such a proprietary interest.44 whether an employer's interests will be regarded as having sufficient substance to merit protection, will depend on the circumstances of each case and in particular the type of business of the employer and the role of the employee in the operation of that business. nevertheless, it is possible to deduce that the interest which the courts will allow to be protected comes under two heads. the goodwill of the employer's business which would include trade connections with both suppliers and customers. the extent of the employer's proprietary interests in this regard will depend upon the access of the employee to such customers and corlrtedions during his employment. 45 a distinction must also be made between the persi;mality and' the personal skills of the employee which engender the succe~s of a business, and a proprietary interest which'may prevent an employer from establishing a proprietary iiiterestitltegard to hiscllstomers.46 the tnlde secrets anq inforinatioh can be treated as it' p'rotectable proprietary interest if they are of a sufficiently high degreeof'confidentiality to warrant prot~ction after'termination of efuploy1llent:irideterniinin'g whether a trade secret isconfidentiai; or is such that an emp1'6ye~is free to use it elsewhere, the court will take into account all the crrcumstartces of the 'case; ihcludihg the nature of the employment; the nature of the informatiqil ~tself; wheth.er the . .. ..employerimpressed on the employee the confidentifllity of the information and '~heth~r:the re1ev~t informati'on"can easily be is'ohitedfrom other 'information 43nordenfelt v. maxim nordenfelt guns andammuniti~n cp, ltd. s!j.i?ra.n.2. 44attwoodv. lamont ri92013 k.b. 5~ 4srex·'stkj;a~i'je.ffrl'esparket gthsbdfg1jd: v. 'parker n988] lit.l.r'. 483 (c.a.)<the opportunities of a managing director tode'velop' relatidnsliips 'with';customers were such that a perio~ qf eighteen months was not unreasonable. . ,.._,., 'i :',\l, " 46 see cantor fitzgerald (uk:) ltd.'v. waliace'[19921i\r.l.r. 2'15'. 118 restraint of trade which the employee is free to use or disclose.47 (c) types of covenant (i) non-solicitation and non-dealing covenants the purpose of a non-solicitation covenant is to prohibit an employee from actively approaching customers of his former employer for a defined period of time after cessation of his employment with the intent that they will become customers of his new employer. 4h the non-solicitation covenant is normally limited to those customers with whom the employee had contact 49 during a specific period prior to the termination of his employment. 50 such a covenant will not be implied where a specific non-solicitation covenant has not been included in the contract of employment. 51 the time period during which the covenant remains effective after the termination of employment must be reasonable and again will depend upon the circumstances. in practice, this will usually mean a sufficient period to allow the successor of a departing employee to establish himself with his employer's customers. a non-solicitation covenant must be distinguished from a non-dealing covenant which prohibits a former employee from having any dealings 47 faccenda chicken ltd. v. fowler supra.n.13 at 310-311; see also lancashire fires ltd. v. s.a. lyons and co. ltd [1997] i.r.l.r. 113 (c.a.) for information amounting to a trade secret which is so confidential that the employee is prevented from using it after leaving his employment, even without a restriction, it is not incumbent upon an employer to point out to an employee the precise limits which he seeks to protect as confidential. 48 por the meaning of solicitation, see cullard v. taylor [1887] 3 t.l.r. 698, (sending letter to customers was solicitation). 49 the employee must have such contact as will attract the customer's loyalty. see s. w. strange ltd v. mann [1965] 1 w.l.r. 629 (dealings on the telephone alone insufficient). 50 plowman v. ash [1964] 1 w.l.r. 568. see also dentmaster (uk.) ltd. v. kent [1997] i.r.l.r. 636 (c.a.)where a non-solicitation clause prohibiting the employee from soliciting the business of anyone who had been a customer of his employers during the last six months of his employment, and with whom he had dealt at any time during the course of his employment, was enforced. the subsequent restraint period was also for six months. in particular, see the remarks of waite l.j. at 638, para. 17"por my part given the brevity of the restraint period and the limitation of this restraint to customers within the previous six months, i find nothing illogical in the absence of a backward temporal limit on the employees dealing with such customers." 51 wallace bogan & co. v cove [1997] i.r.l.r. 453. 119 denning law journal whatsoever with the customers of his former employer. unlike a non-solicitation covenant, a non-dealing covenant is passive in nature and does not require an active approach to former employer's customers, i.e. a customer could himself approach the former employee. the latter covenant is, therefore, wider in nature than a non-solicitation clause, as it involves interference with the rights of third parties to enter into contracts. evidentially, there is no need for the plaintiff to prove that an approach to a customer has been made by the former employee. as a result, the courts have approached such covenants with circumspection, and the plaintiff will have to establish that, as with a non-solicitation covenant, he has valid interests to protect, and there was a personal connection between the former employee and his customers. nevertheless, the courts will enforce such covenants even if a customer makes it clear that he no longer wishes to do business with the former employer and wishes to remain a customer of the departing employee.52 (ii) former employees a contract of employment may contain a covenant that a former employee will not entice away any of the employees of his former employer to work for his new employer. the employer's proprietary interest in this regard is somewhat nebulous, although generally an employer has a legitimate interest in preventing an employee from working for a new employer who is one of his competitors. 53 accordingly, the courts may be reluctant to enforce such covenants and care will be required in drafting to ensure that they are narrow in their interpretation in that they relate to the immediate colleagues of the former employee. (iii) non-competition an employer has no right to restrain an employee from competing with him after cessation of employment, and such a covenant will be prima facie void as 52 johnmichaeidesignp.l.c. v. cooke [1987] i.c.r. 445 and the remarks of nicholls l.j. at 449, para e, "the mere fact that a particular customer no longer wishes to remain a customer of (the former employer) but wishes in future to deal with (the ex-employee) is not per se a sound reason for excluding the customer from the scope of the injunction." 53 kores manufacturing co. ltd v. kolok [1959] ch. 108 per jenkins l.j. at 125. seemingly the maintenance of a stable work force may constitute such a legitimate interest. see dawnay day & co. ltd v. de braconier d 'alphen supra.n.39 and in particular per evans l.j. at 448, para. 46 "an employer's interest in maintaining a stable, trained workforce is one which he can properly protect within the limits of reasonableness by an undertaking of this sort. but it does not follow that that will always be the case." 120 restraint of trade being in restraint of trade. 54 as has been seen, to be enforceable such a covenant must be reasonable as between the parties and also in the public interest. 55 such reasonableness must be established at the time the covenant was imposed.56 other elements also have to pass the test of reasonableness in order to establish the enforceability of a non-competition covenant. first, a restriction must not be so wide as to prevent the former employee from working elsewhere, as such a restriction could effectively amount to specific performance. 57 secondly, both the period and area of restraint must be reasonable, which will depend on the facts of each case and the individual business needs of each employer. 58 all these factors pose a challenge when drafting a restraint covenant in a service agreement. the courts are not, however, unsympathetic to the dilemmas of the draughtsman facing this task.59 the courts are nevertheless, somewhat ambivalent towards the construction of restraint covenants; alternating between a strict construction of them against the covenantee, or attempting to bring them within the scope of reasonableness and avoid declaring them void, although the recent approach has been to adopt the 54 routh v. jones supra.n.38. 55 nordenfelt v. maxim nordenfelt guns and ammunition co. ltd. supra.n.2; also per lord macnaghten at 565"it is sufficient justification, and indeed it is the only justification, if the restriction is reasonable reasonable that is, in reference to the interests of the parties concerned and reasonable in reference to the interests of the public." in that case the protective words were unusual in that they were worldwide. cf littlewoods organisation ltd. v. harris [1977] i w.l.r. 1472 when a worldwide restraint was limited to the u.k.. 56 home counties dairies ltd. v. skilton [1970] i w.l.r. 526; business seating (renovations) ltd. v. broad [1989] r.c.r. 729. 57 whitwood chemical co. v. hardman supra.n.5. 58 for example stenhouse australia ltd. v. philips [1974] a.c. 391five year restriction on the managing director of an insurance broking company upheld. dowden & pook ltd. v. pook [1904] 1 k.b. 45on the facts a restriction without any geographical limit in area held invalid. see also mason v. provident clothing and supply co. ltd. supra. n.38. 59 see home counties dairies ltd. v. skilton [1970] 1 w.l.r. 526 at 538per cross l.j."it is in practice extremely difficult to frame restrictions which will adequately protect a trade connection and may not at the same time cover some cases where a breach will not injure the trade connection. if the court can see that the restriction has been carefully framed for a legitimate purpose, i do not think it should hold it void as contrary to public policy in favour of an employee who is in flagrant breach of it on such narrow grounds as those relied on in this case." 121 denning law journal latter of the two altematives.60 (ei) anticipatory and post termination breach of fiduciary duties the general duty of good faith which an employee owes to his employer places a restriction on working, either during working hours, or in his spare time, for a competitor or in competition with the interests of his employer. 61such a duty is particularly explicit in the case of company directors who are in a fiduciary relationship to their companies. 62furthermore, a director will be required to account for any profit he has made from a transaction carried out in breach of such a duty. 63the duty can also apply both during and after employment. 64 the breach of the implied duty of good faith or an express provision in a service agreement also extends to action taken by an employee during the continuance of his employment in anticipation of the employment being terminated, when such actions can, or are likely to, damage the interests of the employer. the law was succinctly summarised by lord justice greer in wessex dairies ltd v. smith: "[the employee] is under the ordinary implied obligation ... namely that during the continuance of his employment he will act in his employer's interests and not use the time for which he is paid by the employer for furthering his own interests."65 60 see j.d heydon, supra.n.lo at 122-136; and p.l. davies, "post employment restraints: some recent developments" [1992] jb.l. 490 at 501. 6\ hivac ltd. v. park royal scientific instruments ltd. supra.n.l3. the decision reversed a trend whereby a director would not be restrained from working for a competing company. see london and mashonaland exploration co. [1891] w.n. 165 approved by lord blanesborough bell v. lever bros. [1932] a.c. 161 at 195 (h.l.). for a detailed submission that the former case was wrongly decided see michael christie, "the director's duty not to compete" [1992] 55 ml.r 506. 62 cookv. deeks [1916] 1 a.c. 554; 85 l.j.p.c. 161 (p.c.). 63 industrial developments ltd. v. cooley [1972] 1 w.l.r. 443. 64 thomas marshall v. guinle [1978] 3 w.l.r. 116; [1978] i.c.r. 905. 65 [1935] 2 k.b. 80 at 84. the defendant personally approached his employer's customers to resort to his business once he had set it up after his employment had terminated. see also robb v. green [1895] 2 q.b. 315copying the names and addresses of his employer's customers with 122 restraint of trade there is also an implied duty of confidentiality which is not limited solely to the relationship of employer and employee. equity will, therefore, protect a person from conveying confidential information to a third party.66 it is also prudent to include a specific clause in a service agreement dealing with confidentiality, so that the relevant issues are clearly defined and there can be no misunderstandings. employers may, however, consider such a clause to be of such importance as to merit a separate "trust and confidence agreement" defining the information protected in full detail, e.g. inventions, patents, copyrights, etc., and the obligations placed on the employer after termination of his employment.67 a director of a company is also under a duty not to make a secret profit from his utilisation of the assets of the company and opportunities and information available to him arising from his role as a director. 68such a duty arises irrespective of the terms of any service agreement, either in regard to a specific duty or post termination restraint of trade. a director, who specifically resigns (falsely alleging ill health) to exploit a commercial opportunity known to him in his capacity as director, will be in breach of duty, even though his former employer would not have in any event received the benefit of the transaction in question. also, the director will be liable to account for any secret profit. 69 further the duty does not end when a director's employment is terminated and he is, therefore, prevented from pursuing maturing business opportunities which he a view to use by the employee on setting up his own competing business. confirmed in roger bullivant ltd. v. ellis [1987] i.c.r. 464. it may be difficult to prove where a list of names has been committed to memory, hart v. colley [1890] 59 l.j. ch. 355. see also pennycuick v-c in baker v. gibbons [1972] 2 all e.r. 759 at 765. 66 segar v. copydexltd. [1967] 1 w.l.r. 923 at 931, para eper lord denning"the law on this subject depends ... on the broad principle of equity that he who has received information in confidence shall not take advantage of it." 67 see practical commercial precedents [1986] (rei. 27) (gen.ed. jeffrey green), volume 1, part e, employment precedent e. 4. 68 boston deep sea fishing co. ltd. v. ansell [1888] 39 ch. d. 339. the duty can also arise in respectofa senior employeecanadian aeroservices ltd v. 0 'malley [1973] 40 d.cr (3d) 371. 69 industrial development consultants ltd. v. cooley supra.n.63 where the service agreement of a managing director contained no express covenants. see also thomas marshall (exports) ltd. v. guinle supra. n.64; cranleigh precision engineering ltd. v. bryant [1964] 3 all e.r. 289. 123 dennrnglawjournal was engaged upon for his employer prior to his leaving, where the resignation was prompted by a desire to acquire the opportunity for himself.1° v. wrongful termina non if an employee who is subject to a restraint covenant on termination of his employment is wrongfully dismissed, then such covenant is void and unenforceable. this general principle was enunciated in general bill posting co ltd. v. atkinson, when the employers agreed with their manager that his employment could be terminated on twelve months' notice by either party, with a restriction on his right to trade after its termination. 71 the employers having wrongfully dismissed him without notice, it was held he was entitled to treat the dismissal as a repudiation of the contract, to sue them for damages, and that he was no longer bound by the restraint covenant. in practice, however, a contract of employment usually includes a clause that a restraint covenant will take effect on the termination of employment, for example "for whatsoever reason" or "howsoever determined." such clauses, or clauses with similar wording, have however, been upheld by the courts over a number of years. 72 however, the validity of these types of covenant was attacked in the recent case of d v. m, where restrictions on the defendant's former managing director's activities were to apply after his employment was "terminated for any reason whatsoever" and "irrespective of the cause or manner" were held to be 70 island export finance ltd. v. umunna [1986] b.c.l.c. 460 where on the facts the plaintiffs claim failed as the defendant's resignation was not prompted by the desire to take advantage of a maturing opportunity. 71 [1909] a.c. 118. see further at 121 per lord robertson "it seems to me that the covenant not to set up business is not only germane to but ancillary to the contract of service, and that once the contract of service is rescinded the other falls with it." 72 dairy crest ltd. v. piggott [1989] i.c.r. 92"after the termination or cessation in any manner;" business seating (renovations) ltd. v. broad supra.n.56"for any cause whatsoever" and "howsoever effected;" lansing linde v. kerr [1991] 1 all e.r. 418"howsoever caused." see also rock refrigeration ltd. v. jones and seward refrigeration ltd. [1996] i.r.l.r. 675 at 679, para. 38 per morritt l.j."no fewer than 12 reported cases decided between 1964 and 1991 in which covenants in similar terms were not alleged or found to be invalid on this ground." 124 restraint of trade unreasonable on their face and unenforceable. 73 accordingly, there was no issue to be tried. the clause was determined unenforceable as its purpose was to secure coercive rights to the employer, which would survive his own contractual misconduct. the decision, that covenants of this type were unenforceable, has serious practical consequences as they are extant in many existing contracts of employment. this difficulty has now been resolved, as the court of appeal in the recent case of rock refrigeration ltd. v. jones and another where the defendant had given lawful notice under his contract of employment and joined a competitor, held accordingly that there was no question of wrongful termination. 74 the issue in question was whether a restriction covenant, which is expressly provided to take effect upon the termination of a contract of employment "howsoever occasioned" was necessarily unreasonable and thus unenforceable. the court held in revising d v. m that where there is a repudiatory breach of the contract of employment by the employer the principle in general bill posting co.ltd. v. atkinson applies; the employee is released from his obligations under the contract and restrictive covenants against him cannot be enforced. the court further held that a covenant, otherwise reasonable, that purported to remain binding in circumstances where it was impossible to enforce it could not, on that account, be in unlawful restraint of trade; and that therefore, the restrictive covenants in the first defendant's contract were enforceable unless/until the plaintiff committed a repudiatory breach. the effect, therefore, of the decision is that a restraint covenant will not be unenforceable merely because it is drafted to take effect after termination of the contract of employment, for example, "howsoever occasioned" or in other similar terms. the restraint clause will in such circumstances stand or fall in accordance with the restraint of trade doctrine. nevertheless, where there is a repudiatory breach of contract by the employer the employee will be released from the contract and the restraint covenant in accordance with the principle of general bill posting co.ltd. v. atkinson. 73 [1996] i.r.l.r. 192. see also living design (home improvements) ltd. v. davidson [1994] i.r.l.r. 69; pr consultants scotland ltd. v. mann [1996] i.r.l.r. 188; briggs v. oates [1990] i.r.l.r. 472. 74 [1996] i.r.l.r. 675; [1997] i.c.r.938. for drafting considerations arising as a result of the decision see steve wilson & mick woodley, "terminating a restraint clause" (1997) 141 s.j 14; also michael jefferson, "restraint of trade: dismissal and drafting" [1997] 26 i.l.j62. for a consideration of the theory on the law of discharge see p.l. davies, supra.n.60 at 494. 125 denning law journal vi.severance where a restraint covenant contains in part an enforceable restriction, and also in part a restriction which is unenforceable, the courts may strike out the latter and thereby sever the one from the other. un surprisingly, the courts view such a procedure with caution; 75 nor will the court rewrite the covenant. 76 two tests as to the application of the doctrine have emerged from the case law. first, the part of a covenant which is severed must be separate and distinct from the other, and the underlying meaning of the clause must remain. 77 secondly, the "blue pencil" test where the words severed must constitute a generally separate covenant, and do not form an integral part of a single covenant, and can be severed without affecting the meaning of the remaining part. 7s put simply, this means the offending words can be literally deleted without affecting the remaining words as they were actually written. the remaining enforceable terms must also be supported by adequate consideration.79 clearly in drafting restraint covenants they should be kept separate and independently defined so as to make severance more easily applicable if such an eventuality should arise. vii. drafting consider a tions the difficulties facing the draughtsman of a restraint covenant, whether acting for an employer or an employee, were succinctly summarised by lord justice pearson in commercial plastics v. vincent: 7s mason v. provident clothing and supply co. supra.n.38 at 745 per lord moulton"but... that ought only to be done in cases where the part so enforceable is clearly severable, and even so only in cases where the excess is of trivial importance, or merely technical, and not part of the main purport and substance of the clause." 76 ibid. at 745 per lord moulton. 77 t. lucas & co ltd. v. mitchell [1972] 1 w.l.r. 938. 78 attwoodv. lamont supra.n.44. 79 marshall v. n.m financial management ltd. [1997] i.r.l.r. 449 (c.a.) where an entitlement to the payment of post termination commission was held severable and payable. the consideration for the payment of the renewal commission being the employee's services in procuring business before his resignation. 126 restraint of trade "it would seem that a good deal of legal "know-how" is required for the successful drafting of a restraint covenant.,,80 given the present and future uncertainties in respect of these covenants, the busy practitioner has to give careful consideration as to how, if possible, any pitfalls can be avoided. although it is difficult to predict the future view a court may adopt, various clauses can be included in contracts of employment which may offer limited protection for the interests of the parties. one such device is a "savings" clause discussed by the court of session in hinton & higgs (u.k.) ltd. v. murphy and valentine, where the clause contemplated that the parties would abide by a result which could be effected by the deletion of some unreasonable part of the contract rendering the contract as a whole reasonable.81 since that did not involve rewriting the contract (which the court would not undertake) but selecting that version which the parties (inter alia) had made with each other, and thus enabling the modified bargain to stand, there was no reason why the court would refuse to perform that role. on the facts, however, the clause was held unreasonable as being too wide in its geographical limitation. such a clause is of limited value as the draughtsman is attempting to second guess the reaction of the court, and in any event, a resulting modification may only be of a relatively minor nature as the contract cannot be rewritten. a less specific arrangement would be for the parties to agree that the part of the clause held void is deemed not to form part of the contract, but the remaining part shall be valid. such a clause, in effect, merely anticipates severance by the court. when acting for an employer there would, therefore, seem to be little alternative but to err on the side of caution and draft a restraint covenant that is strictly limited in scope so as to ensure enforceability. when acting for the prospective employee the balance of negotiating power may, more often than not, rest with a large wealthy employer. the risks undertaken by the employee will be greater as he or she may leave a relatively secure appointment, move house, home and family, when taking up a new post and entering a restraint covenant. also on termination of employment a covenant may be unenforceable, but the employee will not be able to meet the expense and 80 [1965] 1 q.b. 623 at 647. 81 [1989] i.r.l.r. 519. the contract provided that " ... in the event that any such restriction shall be void would be valid if some part thereof were deleted ... such restrictions shall apply with such modifications as may be necessary to make them valid or effective." 127 denning law journal risk of litigation. a compromise solution would be for the restraint covenant only to take effect after an agreed period from the commencement of employment say, for example, one year. this would give an employee an opportunity to assess his new appointment during the first year, and if dissatisfied leave without fear of being manacled by a restraint covenant. conversely, a covenant of this type may not be acceptable to an employer, who will require a full and immediate commitment from the new recruit; tactful negotiation would, therefore, be required on the part of the prospective employee. viii. conclusion the courts have a long history of decisions in regard to covenants in restraint of trade in regard to contracts of employment going back to the latter part of the last century, and the unwary may be tempted to assumed all the relevant issues have been resolved. such an assumption would, however, be unfounded. generally it has always been difficult to balance the interests of the employer and employee, whilst also taking into account the public interest in deciding the enforceability of restraint covenants. in addition, constant change in commercial and business activities linked with the increase in the importance of "know-how" and technology have raised further questions which have had to be resolved. hence the rec;ent spate of cases in the courts. 82 it would also be imprudent to conclude that the courts will remain inactive in this area as "garden leave" agreements are, for example, still in a state of evolution. all these factors give rise to problems in respect of both the drafting and interpretation of these covenants. care and a perspicacious outlook in regard to future developments are therefore required. 82 for a further consideration of some recent cases see charles wynn-evans, "restrictive covenants and confidential information some recent cases" [1997] 18 bus. law. rev. 247. ]28 two kinds of justice: human and devine book review 249 denning law journal 2008 vol 20 pp 249-251 book review secured transactions in intellectual property: software as collateral kiriakoula hatzikiriakos (markham, ontario: lexisnexis canada inc, 2006) pp 363 isbn 0-433-44769-9, £50.00 janice denoncourt* software copyright is an underexploited source of financing potential for its owners. despite its considerable economic value, it is a non-traditional intangible asset that is difficult to use as collateral for financial borrowing. as stated by the us court of appeals for the ninth circuit in re world auxilliary power company:1 “to use just one example of the multi-sensory need to use afteracquired (really after-created) intangible intellectual property as collateral, now that the high-tech boom of the 1990’s has passed, and software companies don’t attract equity financing like tulips in seventeenth century holland, these companies will have to borrow more capital.”(p3) hatzikiriakos is a partner with the prominent canadian law firm, mcmillan binch medelsohn, where she practises banking and finance law and has experience in secured transactions, including asset-based financing transactions. she is concerned about the pressing need for the software industry to have better access to finance through the use of their copyright assets in order to grow. her book examines the conflict between the established legal principles of commercial law, the laws that govern personal property, and the laws relating to copyright in software. hatzikiriakos submits that the intersection of modern intellectual property law and long-established secured financing legislative framework ignores the commercial realities and needs of the software industry. this in turn increases the risks and uncertainties for lenders taking software as collateral. she * ba (mcgill), grad dip bus (curtin), llb (west aust), llm (murdoch), llm (bournemouth), senior lecturer in law, nottingham trent university, solicitor england and wales, barrister and solicitor western australia. 1 303 f.3d 1120 (9th circuit, 2002). the denning law journal 250 suggests that the inadequacy of the current legal framework raises numerous problems at every stage of the software financing transaction. the book is divided into three chapters: software as collateral; perfection of a security interest in software; and priority disputes and enforcement involving software collateral. while the laws discussed in the text relate to the canadian and the united states jurisdictions and the author adopts a comparative approach in this regard, the legal issues raised are equally valid in other common law jurisdictions including england and wales. the appendices provide a useful overview of relevant international laws. the book is therefore of interest to software and other intellectual property owners, lenders and legal advisers who can familiarise themselves with lender’s concerns in dealing with intellectual property assets generally. the book’s strength is its coverage of the basic mechanics of a secured transaction from a legal a perspective with a detailed discussion of the relevant legislation and case law. the author begins by mapping the current legal framework governing intellectual property secured transactions in canada as regards software. the process of lending against software copyright (a complex product from an intellectual property law point of view) throws up numerous concerns for lenders which are ably identified by hatzikiriakos. briefly, at the preliminary stage of assessment, hatzikiriakos identifies the initial problem of determining the value of the software for the purpose of lending against it. during the actual creation of the security right problems arise in relation to ‘works in development’. at the later stage of perfecting the security, there may be difficulty registering unregistered copyrights in certain jurisdictions. finally, at the enforcement stage, establishing priority between a licensee and a secured creditor is complex. hatzikiriakos proceeds to carry out a thorough examination of the scope of the security interest in software and the secured financing laws applicable to perfection for software. she explains that as copyright is designed to protect an author’s work, the law allows for copyright ownership of an existing copyright work to transfer, even though this will impede the lender’s perfection of a security interest in all of the debtor’s after-acquired copyrights. hatzikiriakos describes the widely adopted practice of dual and even multiple filings to perfect security, highlighting the glaring inefficiency in terms of both cost and time. next she considers priority disputes, conflicts of laws, competing secured parties and third parties. this is followed by a discussion of enforcement on the debtor’s default, taking possession of the collateral and disposing of the collateral. finally, the author evaluates the effect of bankruptcy and insolvency on the lender’s security interest in the software copyright taking into account canadian jurisprudence. the few yet relevant us bankruptcy cases that address the question of perfecting security interests in intellectual property are also mentioned. she argues that the us case law book review 251 would be easily transposed to the canadian legal system and accordingly the text is supported by a detailed comparative canadian/us law table. in the final chapter, hatzikiriakos concludes that a central problem for borrowers and lenders is that no uniform approach exists, so every transaction is a unique and multi-disciplinary exercise leading to uncertainty, unpredictability and wasteful multiple filings. nevertheless, she does not advocate a distinct regime governing only secured transactions involving software collateral. rather, she believes that these transactions should be addressed as part of a broader reform of intellectual property will need to be addressed at a federal level in both the us and canada as well as with regard to the essential features of the information technology industry, in particular to take into account a software developer’s licensing activity. one criticism of the book is the lack of practical aids and case studies highlighting the issues in context (perhaps even from the author’s professional experience in practice as hypotheticals). this would have made the material more accessible to non-lawyers and financiers. nor are there many examples of high profile transactions involving the software industry that have successfully taken place, or indeed the obstacles encountered and overcome. again, this would have been of great interest to practitioners. pertinent precedent finance documentation clauses, by way of illustration or in an appendix, may have also added insight to the issues. checklists for borrowers and lenders summarising the issues for due diligence would have married the academic research with recommendations for practice. nevertheless, this is the first book to bridge the gap between finance law and secured transactions specifically in relation to software. it builds on jacqueline lipton’s more general text entitled security over intangible property published by lbc information services in 2000 which covers other forms of intellectual property in addition to copyright. hatzikiriakos’ work adds to interdisciplinary knowledge of finance and copyright law and has paved the way for debate relating to development of secured finance law and software. indeed, no one interested the tricky question of using software copyright as collateral can afford to ignore this book. capacity for self control the denning law journal 181 case commentary r v james; r v karimi, court of appeal, (criminal division) [2006] 1 all er 759 rolling back the reasonable man but how far? susan edwards* the facts leslie james leslie hall james was convicted, at nottingham crown court on may 1 1979, of the murder of his wife, and sentenced to life imprisonment a plea of provocation having failed. he had stabbed, punched and suffocated her following an argument. on the morning of the killing he had left work and gone to her home carrying a knife he borrowed from a colleague, he said, in order to cut a cork template. after killing her he went back to work returning again to the house during his lunch hour to change the locks. later that afternoon he collected his daughter from school. the background to this killing was that mrs james had left the matrimonial home in december 1978 and formed a relationship with another man (mr dutfield). the police had been called on several occasions to disturbances between dutfield, the appellant and mrs james. on march 23 1982, james’ appeal to the court of appeal was dismissed. on completion of a life sentence, he was released on license and subsequently made an application to the criminal cases review commission to have his case referred back to the court of appeal following the expansion of provocation in the house of lords ruling in smith1 (which permitted the admission of psychiatric evidence in an assessment of capacity for selfcontrol). why would james wish to appeal his conviction having already served his sentence? one can only surmise that he would rather the stigma of a conviction for manslaughter-provocation than the stigma of murder. furthermore, not only is a conviction for provocation considered less morally blameworthy but on completion of a prison sentence no conditions are * ba (cnaa), ma, phd (manc), llm (reading), professor of law, deputy dean of law, university of buckingham; barrister, (door tenant) clarendon chambers, 1 plowden buildings, temple, london, ec4y 9bu9. 1 r v smith (morgan) [2000] 4 all er 289. the denning law journal 182 attached, whereas following completion of a sentence for murder an offender is released “on license” which means that at any time he may be recalled to prison if his behaviour “gives cause for concern.” “cause for concern” includes whether the licensee’s continued liberty would present a risk to the safety of others or whether the licensee is likely to commit further imprisonable offences; the extent to which the licensee has failed to comply with the conditions of the license or otherwise failed to co-operate with the supervising officer; and whether the licensee is likely to comply with the conditions of the license and agree to supervision if allowed to remain in the community. on september 15 2004, the criminal cases review commission referred the case back to the court of appeal. jamal karimi jamal karimi was convicted at st alban’s crown court on july 29 1997, of the murder of his wife’s lover, sirvan kabadi a defence of provocation having failed. the background to this case is complex. in 1984, the appellant joined the communist freedom fighting movement in kurdistan and in 1986 married mehri rezai, a member of the same movement. by 1990 their relationship began to deteriorate. mehri rezai came to england in april 1994 and the appellant joined her shortly afterwards. the relationship broke down in february 1996, and the appellant moved out of the family home. subsequently, the appellant became friendly with a man called sirvan kabadi, who also became intimately associated with the appellant’s estranged wife. on december 4 1996, rezai told the appellant that their relationship was over. on december 6, the appellant met with mr kabadi, they argued and the defendant killed mr kabadi with a knife inflicting numerous stab wounds including cutting the deceased’s throat. the appellant immediately admitted the killing to police. the defences advanced at the trial were that his responsibility was diminished because of post-traumatic stress disorder following his experiences in kurdistan; provocation as the deceased had said to the appellant “besharef” which means, “you have no honour,” and self-defence on the basis that the deceased came at the appellant with a knife. self-defence was rejected and so the issues for the jury were whether the appellant had been provoked and whether he was suffering from diminished responsibility. the jury, not persuaded by either of these defences, convicted karimi of murder. mr karimi's application for leave to appeal against conviction was refused on 1 may 1998. he placed an application before the criminal cases review commission on september 4, 1998 and on june 24, 2003 they referred the case to the court of appeal. an appeal against conviction was allowed in february 20052 and a retrial directed. between the appeal and the retrial 2 r v karimi (jamal) [2005] ewca crim 369. the denning law journal 183 holley3 intervened. at the retrial, at the central criminal court, on october 4 2005, the judge followed holley (which had been decided on march 15, 16, 17; june 15 2005) in directing the jury as to the law. the appellant was once again convicted of murder. karimi was sentenced to a life term. the court of appeal these two appeals against convictions for murder were heard together before lord phillips of worth matravers cj, sir igor judge p, poole, bean and dobbs jj, on december 19 2005 and january 25 2006, as each turned on the correct interpretation of the second limb of the test for a defence of provocation which is concerned with a defendant’s capacity for self-control. both appellants wished to rely on psychiatric evidence, (following the ruling in smith4 which allowed consideration of psychiatric evidence even though the evidence was free standing and not related to the characteristic) with respect to their capacity for self-control. the outcome of each appeal depended on whether the court of appeal considered, the definitive statement on the capacity for self-control in provocation, the decision of the house of lords in smith or a subsequent decision of the privy council on an appeal from jersey in holley. as decisions of the privy council, taken at their highest, were persuasive it could be reasonably predicted that the ruling in smith would prevail. indeed, lord phillips cj in the appeal court said: “[20]. normally the result in a-g for jersey v holley would have been a foregone conclusion. the majority decision in r v smith (morgan) would have been followed and the appeal would have been dismissed. the jurisprudence of the privy council had established that, where an appeal turned on a point of english law, or law identical to english law, the privy council should follow a decision of the house of lords.”5 further, a previous decision of the privy council in luc6 had been eschewed precisely because the doctrine of precedent demanded that decisions of the higher courts were binding. the court of appeal reviewed both lines of authorities. in smith, the house of lords (lord slynn of hadley, lord hoffmann, lord clyde, lord hobhouse of woodborough and lord millett) by a majority 3 a-g for jersey v holley [2005] 3 all er 371. 4 ibid note 1. 5 r v james; r v karimi, court of appeal, (criminal division) [2006] 1 all er 759 para 20. 6 luc thiet thuan v r [1996] 2 all er 1033. the denning law journal 184 of three to two, resolved the ambiguity which had arisen in english law regarding whether the gravity of the provocation should be considered of relevance to the characteristics of the reasonable man only, or whether the gravity of the provocation could also be considered of relevance to the question of a defendant’s capacity for self-control. the certified question for the house was framed in this way: “are characteristics other than age and sex, attributable to the reasonable man, for the purpose of section 3 of the homicide act 1957, relevant not only to the gravity of the provocation to him but also to the standard of self-control to be expected?” their lordships ruled that mental characteristics, which amounted to a mental “affliction”, could properly be considered as relevant to the capacity for self-control. smith was suffering from depression and psychiatric evidence was admitted: “…expert witnesses [also] considered his susceptibility to react to provocation. a psychiatrist called by the defence, who had seen smith in prison less than a fortnight after the offence, said that he was suffering from an abnormality of the mind, namely depression, which could reduce his “threshold for erupting with violence.” another said that he was suffering from clinical depression which made him “more disinhibited”, ie less able to control his reactions.”7 (their lordships use of the term “affliction” was deliberate as they wished to preserve some semblance of a distinction between the defence of provocation and that of diminished responsibility, the latter turning on mental abnormality. in the words of lord clyde, smith was suffering from “some affliction which falls short of mental abnormality.”) in considering smith’s mental characteristic they relied on that part of lord diplock’s ruling in camplin8 in which he held that: “when considering the standard of self-control required to satisfy section 3, there must be attributed to the reasonable man any special characteristics of the defendant.” their lordships in smith ruled that the capacity for self-control was neither a fixed, nor an immutable standard and could be considered separately and quite independently from any characteristic on which a defendant relied in respect of the first limb of the test (lord hobhouse of woodborough and lord millet dissenting). moreover, the house of lords had not only ruled that the standard of selfcontrol was variable but also introduced a moral dimension into the consideration of whether a defendant’s capacity for self-control was reduced. lord hoffman in his judgment said that a jury should find the defence of 7 smith note 1, per lord hoffman para 3 at 299b. 8 dpp v camplin [1978] 2 all er 168. the denning law journal 185 provocation made out where they thought “that the circumstances were such as to make the loss of self-control sufficiently excusable to reduce the gravity of the offence from murder to manslaughter.”9 this part of the judgment created the most concern. many were not happy with the ruling in smith since it widened the second limb of the test and took the ordinary man of provocation over the line into the territory of the diminished man of diminished responsibility, and, in addition, allowed a jury to find provocation where they considered “that the circumstances were such as to make the loss of self-control sufficiently excusable.” there were many who could not wait for an opportunity to voice their objections. holley provided the opportunity. in holley, the appellant, the attorney general for jersey appealed against the decision of the court of appeal of jersey to substitute a conviction for manslaughter for a conviction for murder in the case of the respondent holley who was a chronic alcoholic. holley admitted killing his girlfriend with an axe. the deceased had said to holley, “you haven’t got the guts” holley struck and killed her. the issue was whether the jury should have been directed that his chronic alcoholism was a matter to be taken into account by the jury when considering whether, having regard to the actual provocation and their view of its gravity, a person having ordinary powers of self-control would have done what he did. the privy council (nine lords of appeal in ordinary) allowing the appeal (lords bingham, hoffmann and carswell dissenting), held that the issue for the jury was whether the provocation was enough to make a reasonable man do as the defendant had done and that a “reasonable man” meant a person of ordinary powers of self-control. the privy council ruled that the standard of self-control was uniform and objective and was not to be judged by the self-control which the defendant was able to exercise in the view of the jury. with specific regard to chronic alcoholism the privy council said: “[24] their lordships mention some ancillary points. the first is relevant to the facts in the present case. it concerns application of the principles discussed above in circumstances where the defendant acted under the influence of alcohol or drugs and, therefore, at a time when his level of self-control may have been reduced. if the defendant was taunted on account of his intoxication, that may be a relevant matter for the jury to take into account when assessing the gravity of the taunt to the defendant. but the defendants intoxicated state is not a matter to be taken into account by the jury when considering whether the defendant exercised ordinary selfcontrol. the position is the same, so far as provocation is 9 smith ibid note 1 at 312h. the denning law journal 186 concerned, if the defendant’s addiction to alcohol has reached the stage that he is suffering from the disease of alcoholism.”10 in james and karimi it fell to be determined which of these two cases, (smith or holley) representing as they do conflicting strands of judicial opinion, stood as authority for the correct interpretation of the law in respect of the capacity for self-control. the court of appeal much to the surprise of counsel for the appellants (because of the constitutional position of the house of lords and the privy council) followed the privy council and not the house of lords. it considered itself able to do so and thereby effectively subvert smith because of the unique composition of the privy council. (the judicial committee of the privy council usually sits with a maximum of five members). uniquely the privy council in holley consisted of nine lords of appeal in ordinary. however, the constitution of the judicial committee in holley was no accident. as lord phillips of worth matravers cj stated: “23. the procedure adopted and the comments of members of the board in holley suggest that a decision must have been taken by those responsible for the constitution of the board in holley … to use the appeal as a vehicle for reconsidering the decision of the house of lords in morgan smith, not just as representing the law of jersey but as representing the law of england. a decision was taken that the board hearing the appeal to the privy council should consist of nine of the twelve lords of appeal in ordinary. those sitting were lord bingham of cornhill, the senior law lord, lord nicholls of birkenhead, lord hoffmann, lord hope of craighead, lord scott of foscote, lord rodger of earlsferry, lord walker of gestingthorpe, baroness hale of richmond and lord carswell. …24.…the board divided six/three. the majority concluded that morgan smith had been wrongly decided and that the majority in luc thiet thuan had accurately stated the law. the dissentients were lord bingham, lord hoffmann and lord carswell.”11 as to the correct interpretation of the law, the court of appeal in james and karimi found the ruling in holley to be correct: 10 holley, ibid note 3, para 24. 11 r v james; r v karimi ibid note 5. the denning law journal 187 “27 [22] under the statute the sufficiency of the provocation (‘whether the provocation was enough to make a reasonable man do as [the defendant] did’) is to be judged by one standard, not a standard which varies from defendant to defendant. whether the provocative act or words and the defendant’s response met the ‘ordinary person’ standard prescribed by the statute is the question the jury must consider, not the altogether looser question of whether, having regard to all the circumstances, the jury consider the loss of self-control was sufficiently excusable. the statute does not leave each jury free to set whatever standard they consider appropriate in the circumstances by which to judge whether the defendant’s conduct is ‘excusable’…..”12 commentary the judicial manoeuvres over the past decade have witnessed an expansion both of the first limb, that is the characteristics that can be properly attributed to the reasonable man, and also the second limb with regard to the capacity for self-control. this expansion has benefited battered women whose fear and trauma (battered women syndrome) has been considered a characteristic under the first limb (aluwahlia13) and also a characteristic with the potential for having a direct bearing on the capacity for self-control (second limb) (thornton no 2).14 the capacity for self-control of the reasonable person of provocation following holley appears to have been rolled back to an objective standard. but it is difficult to see how a person’s capacity for self-control can be totally severed from the characteristic(s) of the defendant unless that part of lord diplock’s speech quoted above on camplin is to be ignored or re-encoded. in a dissenting judgment in holley, lord carswell described the majority’s approach as “illogical, inexplicable and unjust.” he could not see any convincing logical ground for the distinction between response characteristics and control characteristics. he also considered that jurors would find the distinction hard to understand. he said: 12 holley, ibid note 3, para 27. 13 r v ahluwalia [1992] 4 all er 889, per lord taylor “however, the endorsement of the new zealand authority in r v newell shows that characteristics relating to the mental state or personality of an individual can also be taken into account by the jury, providing they have the necessary degree of permanence.” 14 r v thornton (no 2) [1996] 2 all er 1023. the denning law journal 188 “i am rather in wholehearted agreement with the remark of thomas j in the new zealand case of r v rongonui [2000] 2 nzlr 385 at 446 that most trial judges had seen “the glazed look in the jurors” eyes as, immediately after instructing them that it is open to them to have regard to the accused’s alleged characteristic in assessing the gravity of the provocation, they are then advised that they must revert to the test of the ordinary person and disregard that characteristic when determining the sufficiency of the accused’s loss of self-control.” the problem with holley (and james and karimi) is that very little is said about which aspects of any previous rulings remain good law, or to what particular aspects this resiling pertains. if the law commission in partial defences to murder had identified the problem of provocation post-smith correctly when stating, “ …there is now no clear test for differentiating between a “provoked killing” and a “revenge killing”,15 driving out all flexibility with regard to the capacity for self-control is not the solution. but i am not certain that holley will have that effect. if holley is confined to its own facts, it is chronic alcoholism that cannot be considered as relevant to reducing a person’s capacity for self-control. this is not new, after all, it has always been the case, as expressed by lord goff, that “being drunk, or high with drugs or glue – at the relevant time…may not be so taken into account, because that, …is excluded as a matter of policy.”16 the central objection to smith expressed in holley, was to the idea that provocation could be found if “circumstances were such as to make the loss of self-control sufficiently excusable.” the objection is understandable. this utterance of lord hoffman’s was bound to create problems. it is interesting that it was lord hoffman, who said so much in support of the predicament of battered women; was critical of the way in which some men assumed a proprietoriality over women – “possessiveness and jealousy should not today be an acceptable reason for loss of self-control,”17 and also concerned that a line should be held against the complete erosion of the objective element, should then leave this matter to what must be the whim, moral hubris and prejudice of jurors who would be left to interpret this in such a way as to undermine protection for women. although he did suggest “ a direction that characteristics such as jealousy and obsession should be ignored in relation to the objective element.” 18 15 law commission partial defences to murder, consultation paper, no 173 (london: tso 2003) p 12, para 1.51. 16 r v morhall [1995] 3 all er at 667e-f. 17 smith ibid note 1 at 309b. 18 smith ibid note 1 at 309c. the denning law journal 189 but what is not clear, is just how far the law will roll back. the privy council in holley said that the privy council in luc had ruled correctly on the interpretation of the law. did the court in holley mean some of luc, or all of it? there is a sea of difference between those cases where there is absolutely no nexus whatsoever between the characteristic and the capacity for self-control, and cases where there is a clear nexus between the characteristic(s) relied upon and the capacity for self-control. in the latter case surely where such a nexus exists the characteristic(s) can also be considered with regard to the second limb that is the capacity for self-control? if this is not the case then battered women will face, once again, a precarious situation of pleading provocation and being likely to fail. let us be clearly reminded, lord taylor cj had ruled in thornton no 219 that the nexus between a characteristic and the capacity for self-control could not be ignored: “the severity of such a syndrome and the extent to which it may have affected a particular defendant will no doubt vary and it is for the jury to consider… it may form an important background to whatever triggered the actus reus. a jury may more readily find there was a sudden loss of control triggered by even a minor incident, if the defendant had endured abuse over a period, on the “last straw” basis.”20 it is also to be noted that lord goff in luc left this matter open when he stated: “their lordships wish to add, as a footnote, that it may be open to a defendant to establish provocation in circumstances in which the act of the deceased, though relatively unprovocative if taken in isolation, was the last of a series of acts which finally provoked the loss of self-control by the defendant and so precipitated his extreme reaction which led to the death of the deceased… whether such a principle could successfully be invoked in cases such as, for example, the “battered wife syndrome” is a matter upon which their lordships can in the present case express no opinion, having heard no argument upon it, but must await a case in which the point arises for decision.”21 19 ibid note 14 [1996] 2 all er 1023. 20 ibid note 14 at 1030c. 21 ibid note 6 at 1047a-c. the denning law journal 190 this surely must remain the position post-holley. so it is open for counsel to re-open this point and the court to rule upon it. we await a case in which the point arises for decision. let us remember that whilst the law continues with this debate, some defendants will serve life terms (karimi). statistics published by the home office22 show that over the last ten years the proportion of convictions for murder of all homicide convictions has increased steadily from 45 to 54 per cent, whilst for the same period convictions for provocation and no intent manslaughter have fluctuated between 39 and 43 per cent. diminished responsibility manslaughter expressed as a proportion of all homicide convictions for the same period has declined from 15 to 3 per cent. the increase in murder convictions may be attributable to the real increase in the use of lethal weapons and the fact that public opinion and therefore jurors are getting “tougher on crime.” it is suggested that the impact of smith may have resulted in an increase in provocation defences and convictions in those cases where previously provocation might have failed. the decline in diminished responsibility may also be in part the result of the shadow of smith in that psychiatric evidence at least since 2001 was admissible in provocation causing defendants to plead provocation rather than diminished responsibility. this is of course speculation and more detailed analysis is beyond the scope of this case commentary. what is certain however is that following the court of appeal in james and karimi, provocation as a defence, and/or the number of cases where provocation is successfully pleaded, will decline. lord hailsham, when lord chancellor, said of lord denning: “the trouble with tom denning is he’s always re-making the law and we never know where we are.”23 this is as true of the law on provocation, though lord denning had no hand in this debate. we have rolled back the law on provocation, but how far? we have certainly rolled back to pre-smith. but are we in a post-luc phase? it seems strange that the privy council in holley, who, with the opportunity as they saw it to redefine the correct limits of provocation did not go further and expound on precisely what these limits were and precisely how these limits were to be applied, whilst the court of appeal with no explanation at all has accepted that factors affecting the capacity for self-control are to be excluded, but that is all we can be certain of. the law will need to roll forward again before it settles. 22 k coleman, c bird and d povey violent crime overview, homicide and gun crime 2004-2005,supplementary volume to crime in england and wales 2004/2005 (london: home office 2006) 02/06, table 2.02. 23 c dyer, guardian unlimited, march 6 1999. case commentary r v james; r v karimi, court of appeal, (criminal division) [2006] 1 all er 759 rolling back the reasonable man but how far? susan edwards* the facts leslie james jamal karimi the court of appeal commentary punishment without law: how ends justify the means in marital rape the denning law journal 37 punishment without law: how ends justify the means in marital rape sir ivan lawrence qc* summary in marital rape cases, the appellate courts have either ignored or dismissed established principles of law: that parliament is sovereign and alone can make new laws, and that the house of lords cannot change laws in contradiction to the clear intention of parliament. now, the courts are developing a test of forseeability, that not only defeats the rule against retrospectivity but goes further to defy common-sense, thus proving, in this area of the law that, ends justify the means. introduction it is one of the paradoxes of modern society that, while neither parliament nor the courts have thought it necessary to protect adults from the causal tide of sexual titillation generated by tabloid newspapers, television and cinema, both institutions have gone into spasm at any mention of the crime of rape. no longer is a defendant protected from false allegation by the requirement of corroboration1 nor by the ability to cross-examine an alleging victim on her past sexual proclivities.2 in 1992, the court of appeal3 and the house of lords,4 throwing constitutional restraint to the winds, even decided to overrule parliament and to create a crime of marital rape. the european court of human rights, in confirming the conviction and reasoning of the appellate courts in that case,5 apparently saw no incompatibility between article 7 of the european convention (no retrospective convictions)6 and the fact that the alleged rape in that case had taken place three years before the crime of * clarendon chambers, lincoln’s inn; master bencher inner temple, london; and visiting professor in law, university of buckingham. 1 criminal justice and public order act 1994 s 32. 2 youth justice and criminal evidence act 1999 s 41. 3 r v r (1991) 2 all er 257. 4 r v r (1992) 1 ac 599. 5 s w and c r v uk 21 ehrr 363. 6 article 7 of the european convention on human rights states: “7 (1) no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.” the denning law journal 38 marital rape was declared to exist by the courts. parliament, faced with a “fait accomplis,” confirmed that marital rape was henceforth a statutory offence, without any debate in either house, in 1994.7 in 2003 and 2004, two more decisions of the court of appeal, in upholding marital rape convictions, have ignored the law against retrospectivity.8 the reasoning in the latter case is so bizarre that, taken together with the other decisions, there is a question mark over whether the courts can any longer be considered to be protecting the rights of the individual in our society. the cases on march 18th 2004, the court of appeal, in a reserved judgement, in the case of r v crooks,9 rejected an appeal against a conviction for rape which had taken place upon the appellant’s wife in 1970. in may 2003, the court of appeal, in an unreserved judgement, in the case of r v laskey,10 rejected an appeal against convictions for two offences of rape upon the appellant’s wife which had taken place between 1988 and 1991. these cases followed the momentous decision in r v r, when the court of appeal11 and then the house of lords,12 rejected an appeal against a conviction for attempted rape on the appellant’s wife which had taken place in 1989. in r v r, the defendant admitted at his trial that, after his wife had told him that she wanted a divorce and had left the matrimonial home, he had forced his way into her house and had attempted to have intercourse with her against her will, causing her actual bodily harm. the trial judge, mr justice owen, ruled that, assuming there had been in marriage a general consent to sexual intercourse, the wife could unilaterally remove herself from cohabitation and thus indicate that consent to intercourse had been terminated.13 r then changed his plea to guilty of attempted rape. the judicial committee of the house of lords, in upholding the decision and argument in the court of appeal, decided that marital rape, not then a criminal offence, was henceforth to be recognised as one.14 on the further appeal, the european 7 the criminal justice and public order act 1994 removed unlawful from the definition of rape amending sexual offences act 1956 s 1. 8 laskey v r (2003) ewca crim 1512 and crooks v r (2004) ewca crim 292. 9 crooks v r (2004) ewca crim 292. 10 laskey v r (2003) ewca crim 1512. 11 r v r (1991) 2 all er 257. 12 see note 4 above. 13 r v r (1991) 2 all er at 747. 14 see note 4 above. the denning law journal 39 court of human rights held,15 that there had been no breach of article 7 of the convention, which declares against the retrospective application of the criminal law. in r v laskey,16 the jury found that on at least two occasions before 1991, the defendant had intercourse with his wife against her will, once, after drugging her. nevertheless, she continued living with him as his wife, and having voluntary intercourse with him until the marriage ended in 1995.17 he was convicted on fifteen counts of the twenty-six charged, and sentenced to ten life sentences of imprisonment for the rapes and buggeries, and fourteen years imprisonment for four counts of indecent assault and one indecency with a child. he appealed against the two rape counts on his wife, on the ground that there existed at the time no such crime of marital rape. a request for a certificate to appeal to the house of lords was refused. an application to appeal has been made to the european court of human rights. in r v crooks,18 the defendant was convicted of rape on his wife in 1970, and a number of other counts alleging sexual and violent offences against four different women between 1967 and 1987, for which he was jailed for a total of 12 years. his ground of appeal was, that since his behaviour would not have been considered to be rape by either parliament or the courts in 1970, it had been an abuse of process to pursue the allegation to trial. he also argued that the conviction was in contravention of article 7 of the european convention. lord justice judge, in delivering the judgement of the court of appeal, said that: “a man may properly be convicted today of having raped his wife before the fiction of deemed consent was finally dissipated in march 1991 (sic).” the court took the view that, since the whole purpose of the convention was to protect someone from inhuman or degrading treatment, the husband could not rely upon article 7. furthermore, article 7 (2), which allowed a retrospective conviction where the act was criminal according to the general principles of law recognised by civilised nations, provided ample justification for a husband’s trial and punishment for the rape of his wife. the court, begging the various questions raised by the case, simply concluded: “this appellant knew perfectly well that to rape his wife was wrong…”19 15 s w and c r v uk 21 ehrr 363. 16 see note 8 above. 17 it is not wholly surprising that his denial of force or the use of drugs was rejected by the jury, since the case against him was that he was responsible for serious violent sexual abuse, including rape and buggery on no less than seventeen complainants, all vulnerable because of their ages, personalities or character, over a period of thirty years. 18 see note 9 above. 19 see note 9 above, para 26. the denning law journal 40 the defence of marriage to a charge of rape at common law it is indisputable that at least from 173620 until 1992, the settled law provided that, being married to the complainant, was a defence to a charge of rape.21 the common law had developed exceptions. in effect, these arose where there was, realistically, no longer a marriage; for example where there existed a “decree nisi,”22 a judicial separation order,23 a separation agreement,24 a non-molestation order,25or a court undertaking not to molest. furthermore, in r v r, the wife had left the matrimonial home and made clear that she did not want to remain married to her husband: he broke in to where she was living with her son and attempted to force himself upon her. none of these exceptions applied in r v laskey or r v crooks. r, laskey, and crooks were each, therefore, convicted and sentenced to long terms of imprisonment for a crime which was understood by the courts not to have existed when they had (or in r’s case, attempted) non-consensual intercourse with their wives.26 how did this happen? for the answer we must look at three conclusions arrived at by the house of lords in r v r, which are surprising because they appear to have contradicted established principles of english law. first, it held that the time had indeed come for it to be judicially declared that there was now a crime of marital rape.27 in so deciding, it was either actually, or in effect, creating a new criminal offence. this was a breach of the constitutional principle that it is for parliament alone, because it is democratically elected, to make new laws. secondly, that the judicial committee of the house of lords had the right to ignore the sexual offences (amendment) act (1976), its 10 hale’s history of the pleas of the crown (1736) vol 1 chap 58 p 629. stated that a husband could not be guilty of raping his wife because she had consented to sexual intercourse with him and could not retract that consent during marriage. 21 r v steele (1976) 65 car at 22, where lane lcj, quoting hale’s pleas of the crown, said: “ there is no doubt about the general principle that a man cannot be guilty of raping his wife”: and see smith and hogan criminal law (10th edition 2002) at p 472 and the reasoning of lord keith in r v r at note 4 above. 22 r v o’brien (1974) 3 all er 663. 23 r v clarke (1949) 2 all er 448. 24 r v kowalski (1987) 86 car 339. 25 r v miller (1954) 2 qb 282. 26 the home office is unable to say how many men, have been convicted and imprisoned for raping their wives between 1992 and 1995, but there may well have been a number. compensation claims, if they have been wrongly convicted, might be considerable. 27 see note 4 above per lord keith of kinkel at 623b: “..the act of 1976 presents no obstacle to this house declaring that in modern times the supposed marital exemption in rape forms no part of the law of england.” the denning law journal 41 proceedings and parliament’s subsequent approach to the matter which had clearly indicated parliament’s contrary intention. thirdly, in effect, that the rule against making a criminal offence retrospective, could be ignored in any case where the accused ought to have foreseen that the time had come when a law might well be passed at some time in the future to make such activity criminal.28 can the house of lords create a criminal offence? parliament has, throughout the past two centuries, considered that it was for parliament, not the judges, to make new law. the judicial committee has always been able to develop the law by interpretation, but not if it was effectively creating a new criminal offence. in 1962, for example, it had asserted its right to create new common law offences to protect public morality,29 but it later disavowed that decision, laying down the principle that the creation of new crimes was a matter for parliament.30 nor can the courts strike down a statute which does not comply with our human rights obligations: they can only declare it to be incompatible and refer it back to parliament for its consideration.31 lord lowry made clear what the limits of the judicial committee’s powers should be, and has laid down guidelines. in 1995,32 he said that judges should beware of imposing a remedy where the solution to a problem is doubtful: be cautious about making changes if parliament had declined to correct a known problem, or had legislated while leaving the problem untouched: that the judges were not suited to deal with disputed matters of social policy: and that fundamental legal doctrines should not be lightly set aside. that it was for parliament to make procedural changes was also well established.33 28 see note 4 above. 29 dpp v shaw (1962) ac 226. 30 dpp v knuller (1973) ac 435. 31 human rights act 1998 s 4. 32 per lord lowry in c v dpp (1995) 2 all er 43 33 e.g hoskyn v commissioner of police for the metropolis (1979) ac 474 (spouses immunity from giving evidence): see also per simon brown lj in ministry of defence ex parte smith and others (1995) 1 all er pp 447-8 (homosexuality as a bar to membership of the armed services). the denning law journal 42 in cases of marital rape, the judges nearly always considered themselves to have been bound by parliament.34 and the former court of appeal judge, sir christopher staughton said of r v r:35 “i do not see how it can be properly described as an ‘extension’. it changed what was substantive law established for a very long time… i hold no brief for rapacious husbands… but the decision of the court …in that case was a clear example of inappropriate legislation by judges.” even in his judgement in the court of appeal in r v r, lord lane lcj drew a distinction between creating a new offence and “removal of a common law fiction” when he said: “ we take the view that the time has now arrived when the law should declare that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim…… the remaining and no less difficult question is whether… this is an area where the court should step aside to leave the matter to the parliamentary process. this is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it.” of this conclusion, with which the house of lords later agreed, the academics were scathing: “...the creation of offences is for parliament alone and ..the role of the judiciary is to interpret rather than to add or subtract”:36 “...it is for parliament, not the criminal courts, to make extensions of the criminal law, however desirable they may be”:37 34 see rougier j in r v j (1991) 1 all e.r. 759 and swinton thomas j in r v s (1991) (unreported): although see simon brown j in r v c (1991) 1 all er 755, where the defendant was acquitted. 35 inner temple millineum lecture 29th november 2000. 36 professor andrew ashworth, vinerian professor of law at oxford university at (1991) 107 lqr 420. 37 professor sir john smith qc, formerly professor of law at nottingham university and author of the leading textbook on criminal law at (1991) clr 478. the denning law journal 43 “the courts have gone beyond the bounds of their legitimate law-making powers… it is clear that justice is best served by statutory reform.”38 other academics have also expressed their disapproval.39 the law commission,40 in making its provisional proposal that “the present marital immunity be abolished in all cases,” did not suggest that the courts could make the necessary change by judicial creativity: it assumed that the law would have to be changed by statute. our conclusion must be that the house of lords does not have the authority to create criminal offences, and to have done so in r v r was “ultra vires” its constitutional powers. in 1994, parliament accepted that the defence of marriage should no longer exist.41 interestingly, there was no debate about the matter, and the provision went through without any discussion in either house of parliament. even if it could legitimately be argued that this was no more than the removal of an anachronistic fiction and not the creation of a new offence, could the house of lords properly ignore a clear parliamentary decision that marital rape should not be a crime? parliament’s intention it is indisputable that, before 1994, parliament had manifested a clear intention that marital rape should not be a crime. the sexual offences (amendment) bill (1976) section 1 (1) provided a statutory definition of rape in terms which gave effect to the report of the advisory group on the law of rape.42 it specifically defined the offence as: “unlawful sexual intercourse”, unlawful having no other meaning than outside marriage. when the bill was introduced as a private members measure by robin corbett mp (now lord corbett), it had, in clause 1(3), provided for a crime of marital rape, but the minister of state at the home office, mr brynmor john, expressly moved amendment 11 to delete that clause from the bill.43 in this he had the support of the opposition and most of the mps debating the bill. no vote was necessary and none was moved. during the passage of the bill through both houses, no attempt was made to restore the clause. a number of reasons were given in that debate for what, in the eyes of the courts in 1992, had seemed to 38 marianne giles, lecturer in law at the university of kent at (1992) clr 407. 39 dr a t h smith (1984) 100 lqr and t jones (1990) clr 292. 40 working paper 116 “rape within marriage”(september 1990). 41 criminal justice and public order act 1994 s 142. 42 home office, report of the advisory group on the law of rape, december 1975, cmnd 6352. 43 vol 911, house of commons official report (1976) cols 1957 et seq. the denning law journal 44 be “anachronistic and offensive,” but which sixteen years earlier had seemed sensible to both the government and the opposition. the minister44 argued that insufficient consideration had been given to the effect of the proposal upon the status of marriage, and particularly that, since women often complained about their husbands and then later changed their minds, any legislation would have to take account of that factor and this the proposed clause did not do. such a change, he said, would lead to cynicism from those who had to enforce the law and would be likely to do more harm than good. other mps,45 with day to day experience of the working of the law, feared that unscrupulous wives would be given an easy weapon for blackmailing their husbands into agreeing to a divorce, with its consequences for substantial financial settlements. the mere allegation of rape, even without any evidence of violence, would be a terrible slur, difficult or impossible to rebut. indeed, if there had then been, as there is now, no need for a judicial warning to be given to a jury about the danger of convicting without corroboration, 46 and the statutory restrictions which now exist on the cross-examination of a rape victims,47 parliamentary objections to marital rape might have been even stronger. it was also argued, that since no defence of being married to the complainant was available for the crimes of attempted murder, grievous and actual bodily harm, and the courts had power to order non-molestation, non-cohabitation, separation and an end to the marriage, a wife was well enough protected by the existing law in the event of physical violence being threatened or done to her. the minister said that the question of whether the marital defence to rape should remain, was then being considered by the criminal law revision committee, and if it recommended a change in the law, the government would act. in the event, eight years later, in 1984, that committee recommended48 that, with the addition of one exception, the law should remain as it was: there should continue to be no crime of marital rape. between 1976 and 1992, although parliament had many opportunities to create a crime of marital rape had it wished to do so,49 it took no action in the matter. the intention of parliament up to 1992, remained perfectly, clear. 44 ibid cols 1953-1954. 45 ibid cols 1967-1970. 46 criminal justice and public order act 1994 s 32(1)(b). 47 youth justice and criminal evidence act 1999 ss 41-43. 48 the fifteenth report of the criminal law revision committee, sexual offences (cmnd 9213 of 1984). 49 eg the sexual offences act 1985 and the criminal justice act 1988 which dealt specifically with changes to the sexual offences (amendment) (1976) act. the denning law journal 45 since all of lord lowry’s guidelines50 are fulfilled, our conclusion must be that the house of lords, in r v r, was also acting “ultra vires” its constitutional powers in ignoring the clear intention of parliament. the reasoning in r v r. the court of appeal (lord lane lcj, sir stephen brown p, watkins, neill, russell ljs), in r v r, dismissed the appeal on the grounds that the fact that the parties were married at the time was no longer a defence to rape.51 leave was granted to appeal to the house of lords on the certified question: “is a husband criminally liable for raping his wife?” the house of lords dismissed the appeal, confirming the court of appeal judgement. argument in that court turned upon the definition of rape in the 1976 act viz: “unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it …”52 this presented a substantial obstacle to a court wanting to remove the marital rape exception. the appellant argued that “unlawful” could only mean, in this context, “outside marriage” and that that interpretation had been accepted in a series of cases.53 in fact, the specific insertion of the word “unlawful” into the definition of rape, had been a clear indication of parliament’s intention to exempt non-consensual marital intercourse from the crime of rape. to remove the obstacle, lord keith of kinkel, delivering the judgement in the house of lords, said that the word “unlawful” was just “surplusage” and could safely be ignored. he reasoned that if “unlawful” only meant “outside marriage,” it did not cover the various exceptions to rape established by the courts which took place within marriage.54 those exceptions would therefore have been abolished: an unlikely result without specific parliamentary declaration. sir john smith vehemently criticised this reasoning55 and saw no difficulty in reconciling the apparent inconsistencies suggested by lord keith. furthermore, he argued, that to treat the word “unlawful” as mere “surplusage,” was to ignore two fundamental rules of statutory interpretation: first, that it is the duty of the court to give a meaning to every word in the 50 cr v the united kingdom; sw v the united kingdom (case nos 48/1994/495/577; 47/1994/494/576). 51 (1991) clr 475. 52 sexual offences (amendment) act 1976 s.1 (1) (a). 53 r v j (1991) 1 all e.r. 759: r v s (1991) clr 301: s v hm advocate (1989) slt 469: and r v chapman (1959) 1 qb 100 – a decision on s 19 sexual offences act 1956 (abduction of an unmarried under 18 year old for the purpose of unlawful sexual intercourse.) 54 see note 4 above. 55 see (1992) clr 208-9: and see marianne giles (1992) clr 407. the denning law journal 46 section unless no meaning is possible; and secondly, that penal statutes must be strictly construed. opinion today might say that the end result was desirable, and indeed parliament did legislate for marital rape two years later. the statutory definition of the crime of rape was changed to remove the qualification that the intercourse had to be “unlawful” (ie outside marriage), giving effect to the decision of the house of lords that the word “unlawful” was “surplusage.”56 that does not alter the fact that it was never more than a pretence for the court of appeal, and then the house of lords, to argue that it was doing no more than developing the law, still less that it was really parliament’s intention to remove the marital defence to a charge of rape. those arguments surely diminish the reputation of the judicial committee of the house of lords as a protector of our laws and the rights therein enshrined. it is not just another example of the adage that “hard cases make bad law”: it looks like an acceptance that in our laws, ends can sometimes justify the means. one might even assume that the decision to become “law-maker” in preference to parliament was deliberate, since to have achieved the same result in r v r, it would have only have been necessary to hold that, the wife having removed herself from co-habitation with her husband by leaving the matrimonial home and thus expressing a clear intention to divorce him, the established exceptions to the marital defence would apply.57 even if it could be said to have been acceptable for the house of lords either to create a new crime or merely to remove a “fictional defence” in the face of a clear parliamentary intention to the contrary, the question remains: how could such a law be allowed to operate retrospectively? the rule against retrospectivity and article 7? article 7 of the european convention states: “7. (1) no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed…. (2) this article shall not prejudice the trial and punishment of any person for any act or omission which, at the time it was committed, was criminal according to the general principles of law recognised by civilised nations.” 56 criminal justice and public order act 1994 s 142. 57 see notes 22, 23, 24 and 25 above. the denning law journal 47 that criminal laws cannot have retrospective effect, has been a longstanding rule of english law: someone can only be guilty of crime if he commits an act which the law expressly, and certainly, forbids at the time he does it. where, for example, the trial judge held that certain penal provisions of the immigration act 1971 had retrospective effect, the conviction was quashed.58 the european convention on human rights, prohibits not only the legislative creation of offences which are retrospective, but also the retroactive application of common law offences in order to cover conduct which would not previously have been regarded as a crime.59 in r v r, the rape offence (attempted rape) took place on 12th november 1989, the wife having left the matrimonial home three weeks earlier. on that date the law was generally accepted by the courts to have still been that of hale, as amended. it was not until 14th march 1991, when lord lane lcj, speaking for the court of appeal, declared that marriage was to be no longer a defence to rape, that any citizen could reasonably have thought that the law had now changed. he was very specific about the change in the law, declaring that: “ …the time has now arrived when the law should declare that a rapist remains a rapist.” until then, he clearly implied, the law had not been so declared. in fact it was not definitively the law until the house of lords confirmed it to be so in october 1991 – 2 years after the non-consensual attempt at intercourse complained of in the case. how then did the court of appeal deal with the obvious issue of retrospectivity? the surprising answer is that they did not do so: it does not appear from the reports that the matter was even raised. perhaps lord lane was skirting around it in the very last paragraph of his reasoning, when he said: “ …had we been of the opinion that hale’s proposition was still effective, we would nevertheless have ruled that where, as in the instant case, a wife withdraws from cohabitation in such a way as to make it clear to the husband that so far as she is concerned the marriage is at an end, the husband’s immunity is lost.”60 how then did the house of lords deal with the problem? again it does not appear, from the reports, that the matter was specifically either raised by counsel or addressed by the court. it was concerned only with answering the 58 waddington v miah (1974) 1 wlr 683 (hl). 59 article 7(1) european convention on human rights applied, for example, in x ltd and y v uk 28 dr 77. 60 r v r (1991) 2 wlr at 611. the denning law journal 48 point of law of general public importance it was asked: “is a husband criminally liable for raping his wife?” the application of the rule against retrospectivity was, of course, central to r’s appeal to the european court of human rights61 on the ground that there had been a breach of article 7. first the commission expressed the view, by 14 votes to 3, that there had been no such violation, then the court itself unanimously agreed that there had been no breach of the rule. in its judgement, the court itself, having said that article 7 was particularly important: that the rule “nulla poena sine lege” could not be extensively construed to an accused’s detriment: that therefore the offence had to be clearly defined by law: and that that requirement would be satisfied where the individual could know from the words of a statute, if need be, with the assistance of the court’s interpretation of it, what acts and omissions would make him criminally liable: went on to say that those matters involved the concepts of accessibility and foreseeability.62 progressive development of the criminal law through judicial law-making was a well-entrenched and necessary part of the uk’s tradition and article 7 could not be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided – and here is the nub that the resulting development was consistent with the essence of the offence and could reasonably have been foreseen.63 the european court concluded that the state of the law could have been reasonably foreseen, and so there was no breach of article 7. it is submitted that that conclusion is unsustainable. lord lane lcj may have stated in the court of appeal that the idea that a wife consents to intercourse in any circumstances “can never have been other than a fiction, and fiction is a poor basis for the criminal law”64 and the house of lords may have accepted that view, but the question must be: would anyone, years before those opinions were judicially expressed, have reasonably understood that to have been the position in law? fiction or not, the courts had certainly accepted the marital defence to be the law for over 250 years. is it reasonable to expect an ordinary person to have foreseen that the law was the opposite of what the courts themselves had always supposed it to be? what of the principle that before conviction, the law must be certain?65 even if an ordinary man must have realised that the law “might” be changed at some time in the future, what certainty is there that that would happen, since it had not happened over the past century? and where is the 61 c r v u k 21 echr 363. 62 ibid para 32-33. 63 ibid para 34. 64 see note 4 at 610e. 65 handyside v uk (1976) 1 ehrr 737. the denning law journal 49 certainty that the terms of any future change would cover the situation, for example, of a man who continues to have voluntary intercourse with his wife as in laskey’s case? equally, such a man might well have heard that, in 1976, parliament had decided that marriage would remain a defence to rape: is it reasonable to expect him to foresee that the court of appeal or the judicial committee of the house of lords would take it upon themselves to create an offence that parliament had specifically refused to create? and even if that did happen, how could he reasonably have foreseen that the time honoured rule against retrospectivity would be ignored or rationalised out of existence? r v crooks shows how legally dangerous the application of this reasonable forseeability rule has become. first, crooks had involuntary intercourse with his wife in 1970. if he had delayed that act for 6 years, until parliament decided that marriage should still be a defence, in 1976, what then could he reasonably have been expected to foresee? secondly, the court disagreed with the submission that the defendant, seeking legal advice in 1970, would have been told that he would not be committing a criminal offence. the court said that a solicitor would have told his client “that the courts had developed, and could be expected to continue to develop, exceptions to the supposed rule of irrevocable consent, and that, if ever the issue were considered by the court of appeal, the supposed immunity of the husband from a successful prosecution for the rape of his wife might be recognised for what it was, a legal fiction.” but the issue was retrospectivity: does any of this explain why an advising solicitor might suppose that the developed law would apply retrospectively? thirdly, the court’s view was that article 7 (2), allows retrospection where the behaviour has been criminal according to the general principles of law recognised by civilised nations. is it seriously being suggested that because parliament had decided against marital rape, that we were not a civilised nation? fourthly, the court said that “examining the entire purpose of the convention, the wife was entitled to protection from inhuman or degrading treatment and indeed from the destruction of any of the rights and freedoms protected by the convention.” but if the broader principles of the convention suffice to cover such issues, one wonders why the draughtsmen found it necessary to include article 7 at all? it is submitted that these arguments defy common-sense. conclusions there is, of course, no moral reason whatsoever for protecting rapists, and the law has been rightly getting tougher in its dealings with them. it may well be that no great moral injustice was done in laskey’s case, although where a wife, after the “rapes”, continues to co-habit for several years, a ten year sentence might be thought to be somewhat harsh. the denning law journal 50 but what of the legal injustice? is a country which is rightly proud of the supremacy of the rule of law, to be seen to be straining to uphold convictions for marital rape by reliance upon manifestly flawed legal arguments and a contrived interpretation of the concept of forseeability, in order to circumvent fundamental principles of law which have protected our citizens throughout the centuries? one does not have to be a supporter of ‘rapacious husbands’ or make light of the appalling evidence in these cases, to see that the precedent of the highest courts thumbing their noses at the rules of law they are meant to safeguard, and seeming to uphold the dangerous concept that ends justify the means, does not bode well for justice. nor does the spectre of the european court of human rights fudging the rules it is meant to safeguard, look good for the preservation of those rights. it may be that the european court will not be too anxious to get into a debate about whether the highest court in a sovereign state, acted “ultra vires” its powers in making new law: questions of sovereignty apart, a backlog of 68,000 cases, when only 3000 are currently being processed a year, is likely to dull any enthusiasm. but it might certainly help to relieve the forces of constitutional conflict, now raging between government and the judiciary, if the judicial committee of the house of lords were to take an early opportunity to restate definitively the limits of its powers. and it would surely increase the respect in which the european court is held, if it were seen to be strong and unequivocal in upholding its own convention, which guarantees the protection of human rights, by declaring that the rules that there should be no punishment without law and no retrospective application of laws, mean exactly what they say. for if neither of our guardians, the house of lords or the european court of human rights, do the right thing by the law, might we not ask who in the end is there to protect the individual in our society? punishment without law: how ends justify the means in marital rape summary introduction in 2003 and 2004, two more decisions of the court of appeal, in upholding marital rape convictions, have ignored the law against retrospectivity. the reasoning in the latter case is so bizarre that, taken together with the other decisions, there is a question mark over whether the courts can any longer be considered to be protecting the rights of the individual in our society. the cases the defence of marriage to a charge of rape at common law can the house of lords create a criminal offence? parliament’s intention the reasoning in r v r. the rule against retrospectivity and article 7? conclusions fairness remains an elusive concept – financial provision on divorce the denning law journal 209 case commentary miller v miller; mcfarlane v mcfarlane [2004] ukhl 24 fairness remains an elusive concept – financial provision on divorce mary welstead* the house of lords in miller and mcfarlane sought to articulate principles which would enable the courts to exercise their discretionary powers under part ii of the matrimonial causes act (mca) 1973 in a consistent manner and provide a fair outcome for divorcing couples. the decision was greeted as a tour de force by some media sources, and as a gold diggers’ charter by others, for wives who abandoned, or were abandoned in, short-lived marriages. it has been variously described as just; groundbreaking; historic; principled; a landmark decision; a triumph for women; a disaster for wealthy men; and as a trigger for reform of the law relating to pre-nuptial agreements. a close analysis of the decision, however, suggests that some of these comments may be reflections of wishful hopes rather than reasoned responses to the actual reality of the judgment. although it must be acknowledged that the house, on the basis of its construction of fairness, did take a significantly new approach to short marriages and to the purpose of periodical payments. the law relating to ancillary relief on divorce remains remarkably unchanged and problematic. the facts (a) miller mr and mrs miller were aged 39 and 33 respectively. prior to divorce, they had enjoyed (sic) a short and childless marriage, for a little less than 3 years. during that time mr miller had taken a lover; left to live with her, and eventually married her. immediately prior to the miller’s marriage, mrs miller resigned from her job in cambridge and moved to london where mr miller was working. she took up new employment as an associate partner of a public relations firm where she earned £85,000 per annum. mr miller was a * bsc (econ) (lond), ma, phd (cantab), diped (london): visiting professor in family law and director of university of buckingham foundation, university of buckingham. the denning law journal 210 very successful fund manager and earned £181,000 per annum, plus bonuses of £1 million. he had capital assets of £17.5 million. in addition, he owned shares, the value of which were difficult to estimate, and in any event, were unsaleable at the time of the divorce. however, they were likely to produce significant capital sums in the future. mrs miller had £100,000 of capital assets, half of which was tied up in a pension fund. on divorce, she made an application for ancillary relief in the form of a capital sum of £7.2 million, which would permit a financial clean break between her and her husband. mr miller believed that he was generous in offering her £1.3 million, which she rejected. (b) mcfarlane mr and mrs mcfarlane were both aged 46 and, by contrast with the millers, had been married for 16 years. they had 3 children aged 16, 15 and 9 years. mrs mcfarlane had been a successful solicitor with freshfields, but had reached an agreement with her husband that she would give up her career to be a wife and mother and enable him to pursue a successful career as a partner with the accountants touche ross. after their separation, the couple agreed to divide equally their capital assets of about £3 million, some of which were owned jointly and some of which were in mr mcfarlane’s sole name. by agreement, mrs mcfarlane was to retain the family home for herself and the children, and mr mcfarlane would keep the holiday home in devon, a flat in london, and his partnership current account. the couple also agreed that, because there was insufficient capital to allow for a financial clean break between them, mrs mcfarlane would be entitled to periodical payments for the couple’s joint lives, or until a further order was made, for herself and the children. however, they differed over the level of these payments. mrs mcfarlane wanted £345,000 per annum which included £70,000 for the children, and £275,000 for herself. in addition, she also wanted school fees for the children. mr mcfarlane proposed payments of £60,000 plus school fees for the children, and £100,000 plus insurance payments for his wife, for their joint lives, or until a further order was made. (c) the high court decision in miller singer j accepted that the circumstances in miller1 patently demanded a “clean break” in accordance with the mca 1973 s 25a. the section, it will be recalled, directs the court to consider whether it is possible to end all obligations between the spouses, either at the time of the hearing, or at a 1 [2005] ewhc 528. the denning law journal 211 specified date in the future, and allow them to live independently. after considering, albeit in a rather generalised manner, all the factors laid down in the mca 1973 ss 25 (1) and (2), singer j awarded mrs miller £5 million which was made up, almost equally, of the family home and capital. she also received furniture and other goods worth £150,000. this was certainly a significant settlement after such a short marriage. singer j held that neither of the parties’ conduct, under s 25 (2)(g) was such that it would be inequitable to ignore it. however, he commented that mrs miller, unlike her husband, was totally blameless and had neither sought to end the marriage nor had she given him any remotely sufficient reason for doing so. singer j believed that fairness demanded that this fact in addition to her commitment should be balanced favourably against the brevity of the marriage. he maintained that mr miller had given his wife: “ … a reasonable expectation that her life as once again a single woman need not revert to what it was before her marriage, and that she should be able to live at a significantly better standard in terms of accommodation and spendable income, even if at one which does not approach the level that [he] can afford for himself and his new family.”2 nowhere in the decision is it made clear where “reasonable expectation” fits within the mca 1973 s 25. whilst it is true that s 25 (1) requires the court to take into account all the circumstances of the case, the acceptance of reasonable expectation of an enhanced lifestyle as a relevant factor in the context of a short marriage to a wealthy husband appears to be an extraordinarily generous approach. (d) the court of appeal decision in miller mr miller considered that £5 million was too generous a settlement for a short marriage, and appealed to the court of appeal.3 his appeal was dismissed; the court (thorpe, latham and wall ljj) found singer j’s judgment to be somewhat oblique but nevertheless held that the amount of the settlement awarded, albeit at the high end of reasonable, was not excessive. of more particular interest in the decision is thorpe lj’s apparent confirmation of the reintroduction of conduct as a relevant factor via the surreptitious back door route of contribution. he explained that: 2 para 41. 3 [2006] 1 flr 151. the denning law journal 212 “… the language of s 25(2)(g) is intended to discourage allegations of conduct unless it is such that it would be inequitable to disregard. in other words it is pointless, and in terms of costs, risky, to assert misconduct that does not measure high on the scale of gravity. but conduct that would not merit advancing under s 25(2)(g) is not therefore irrelevant or inadmissible. often the court’s assessment of the worth of the comparable contributions will require consideration of motives, attitudes, commitments and responsibilities.” 4 the court of appeal also declined to accept mr miller’s contention that financial settlements after short marriages should merely take into account the claimant’s needs. it explained that: “section 25 requires a more sophisticated evaluation of the extent of the wife’s commitment to and investment in the marriage emotionally and psychologically. in some cases it may be necessary for the court to assess emotional and psychological damage and the extent to which the applicant’s future capacity and opportunity to enter into a fulfilling family life has been blighted. what a party has given to a marriage and what a party has lost on its failure cannot be measured by simply counting the days of its duration.”5 (e) the district judge’s decision in mcfarlane mrs mcfarlane was awarded periodical payments of £250,000 a year for the couple’s joint lives.6 the award took into account both her needs and her right to compensation for her contribution to the marriage and her future obligations to the children. by some strange coincidence (sic), this sum was equivalent to one-third of mr mcfarlane’s net income (see the now discredited rule in wachtel v wachtel [1973].7 the district judge accepted that mrs mcfarlane could not be expected to work; the age of the children and her long absence from her profession as a solicitor limited her capacity to return to work in her chosen career. the couple’s contributions to the marriage were viewed as equal, albeit different. their joint decision to separate their roles 4 para 29. 5 para 33. 6 [2003] ewhc 2410. 7 fam 72. the denning law journal 213 into income provider and child-carer would continue to have an effect for the foreseeable future. (f) the high court decision in mcfarlane mr mcfarlane appealed,8 and bennett j decided that the award of periodical payments should only be sufficient to meet mrs mcfarlane’s needs. it should not provide her with the potential for capital accumulation to compensate her for her past contribution to the marriage and future contribution by way of childcare. bennett j held that she had already been provided with a lump sum payment on divorce and he reduced her award to an order for periodical payments of £180,000. (g) the court of appeal decision in mcfarlane mrs mcfarlane appealed9 and sought reinstatement of the district judge’s order. the court of appeal held that periodical payments could be both compensatory and needs related. the use of the yardstick of equality in white v white10 could be used to check the fairness of the award of periodical payments in the same way as for capital awards. the court restored the district judge’s order for periodical payments of £250,000 per annum but limited its duration to five years. it held that the order could be reconsidered at that point in the light of mr and mrs mcfarlane’s financial circumstances. the court reasoned that to award periodical payments for the joint lives of the couple would be to ignore the clean break principle in the mca 1973, s 25a. the house of lords decision in miller and mcfarlane (a) the concept of fairness lord nicholls and baroness hale, who gave the leading judgments in the house of lords,11 both acknowledged the limitations of the mca 1973 in providing guidance to the courts in determining applications for ancillary relief. they maintained that the act had no overarching objective and did little, other than to direct them to give primary consideration to the welfare of the children of the family (s 25(1)), and to consider the feasibility of ending 8 [2004] 1 fcr 709. 9 [2005] fam 171. 10 [2001] 1 ac. 11 [2004] ukhl 24. the denning law journal 214 the financial relationship between the couple by the imposition of a clean break (s 25a). the judgments are lengthy, and contain, at least in the judgment of lord nicholls, a substantial amount of judicial philosophising on the nature of fairness. according to lord nicholls, the concept of fairness is elusive, it is “… an instinctive response to a given set of facts. ultimately it is grounded in social and moral values. these values, or attitudes, can be stated. but they cannot be justified, or refuted, by any objective process of logical reasoning. moreover, they change from one generation to the next. it is not surprising therefore that in the present context there can be different views on the requirements of fairness in any particular case.”12 given this acceptance of the relativist nature of fairness, it is interesting to note that lord nicholls set that aside and simply imposed his own view of fairness in determining principles for the guidance of others. a close analysis of his remarkably unwieldy judgment reveals that he actually does little more than impose a hierarchical order on the factors of the mca 1973, in guiding the courts in their exercise of discretion. he also took an exceptionally complex approach to the different categories of property owned by spouses in determining what property should be available for reallocation. (b) the three strands of fairness – needs according to lord nicholls and baroness hale, the first strand of fairness relates to the couple’s needs. fairness in the majority of cases, begins and ends with needs because the available assets are insufficient to provide for anything more. (c) the three strands of fairness – compensation they ruled that if there is any excess income or capital, once needs have been met, the courts can then consider the second strand of fairness, that of compensation. this redresses the balance when unfair economic disparity has resulted from the way the couple conducted their marriage (s 25 (2)), for example where a spouse has agreed to give up her career to care for children, and support her husband in the pursuit of his career, she will be at an economic disadvantage if the marriage breaks down. even when a divorced 12 para 4. the denning law journal 215 spouse is able to earn her own income to satisfy her needs, there may still be an entitlement to compensation for the detriment resulting from the earlier agreement made with her husband, and from which he has benefited. in considering the types of financial awards which might be awarded, lord nicholls accepted that there was nothing in the mca 1973 which restricted the award of periodical payments for maintenance alone. such payments could equally be used for compensation and to achieve parity between the divorcing couple where one spouse has high income and insufficient capital to make a final capital settlement. the clean break principle, albeit socially desirable, was not to be seen as sufficient reason for depriving the claimant of that parity. (d) the three strands of fairness equal sharing the third strand of fairness, according to the house of lords, is equal sharing. this principle is a development of lord nicholl’s judgment in white v white.13 it is based on the judicial perception of marriage as a partnership of equals who have committed themselves to sharing their lives in an interdependent manner. if they divorce, each is entitled to an equal share of the partnership assets, unless there is a good reason to the contrary. in white, lord nicholls stated that domestic contribution and contribution to income and capital generation are to be viewed equally unless there is a seriously exceptional reason for doing otherwise. gone are the days of the “stellar” contribution argument, usually made by husbands maintaining that their contribution to income generation was so special, and made by themselves alone, and could not be related in any way to their wives’ contributions. any award must be checked for fairness against the yardstick of equality which does not necessarily mean equal division of assets. this approach to equality is fraught with similar difficulties to those identified above in judicial approaches to fairness; both concepts involve relativism and with it inconsistency and uncertainty. at practical level how is to be achieved? what is the starting point for the process? lord nicholls himself identified the problem. he considered whether in big money cases, the parties’ financial needs and the requirements of compensation should be met first, and the remaining assets then shared, or whether financial needs and compensation should simply be subsumed into the equal division of all the assets. not surprisingly in the light of his flexible approach throughout his judgment, he stated that there can be no invariable rule on this; it all depends upon the circumstances of the case. generally, it might be convenient for the court to consider first the requirements of compensation and then to give 13 [2001] 1 ac 596. the denning law journal 216 effect to the sharing entitlement, thus subsuming needs. but this approach would not always achieve a fair outcome; in some cases provision for the financial needs would have to be assessed first along with compensation and the sharing entitlement applied only to the remainder of the assets. in the case of short marriages, lord nicholls, stated, somewhat obliquely, that equal sharing is also applicable because they are nonetheless partnerships. however, he attempted to minimise the effect of such a view and proceeded to state that the fact that a short marriage has been less enduring will affect the value of the relevant assets available for distribution. he elaborated this point by a complex explanation of what constitutes the relevant assets which are to be equally divided in his view, lord nicholls suggested that lord nicholls maintained that in fairness demands that there should be no distinction between what he termed “family” assets, and “business or investment” assets. however, he then proceeded to differentiate the assets based on their nature and source, and having regard to all the circumstances of the spousal relationship. assets acquired during marriage, other than by inheritance or gift, are the financial product of the parties’ common efforts and may be referred to as the marital acquest or matrimonial property. other assets, which are not the product of a common effort, may require different treatment, with one exception, and that is the couple’s matrimonial home. one of the spouses might have purchased the property prior to the marriage, in which circumstance lord nicholls considered that it should normally be treated as matrimonial property because it occupies a central place in the marriage. the source of the asset, lord nicholls suggested, may be a good reason for departing from equality of division. in the case of a short marriage, for instance, lord nicholls’ instinctive feeling (sic) was that fairness may well require that a claimant should not be entitled to a share of the other’s nonmatrimonial property. in the case of a longer marriage the position is not so straightforward. some modest non-matrimonial property may, over time, lose its significance and become more like matrimonial property, whilst other more valuable non-matrimonial property may retain its individual identity. in any event, lord nicholls believed that fairness has “a broad horizon” and that the courts’ approach must be flexible; that clear and precise boundaries should not be drawn between the source of assets. application of the principles in miller in applying these principles to the facts in miller, the house of lords dismissed mr miller’s appeal. it refused to resurrect conduct, directly or indirectly, as a relevant factor except where it was of an extreme nature. the house of lords interpreted singer j’s view that mrs miller had been given a legitimate expectation that in future she would be living on a higher the denning law journal 217 economic plane, as merely a statement to the effect that the standard of living enjoyed by a couple before the breakdown of their marriage is one of the discretionary factors in the mca 1973 s 25 which may be taken into account by the court in determining the amount of the financial settlement. it held that if singer j meant to go further than that, then he had gone too far. the house explained that: “no doubt both parties had high hopes for their future when they married. but hopes and expectations, as such, are not an appropriate basis on which to assess financial needs. claims for expectation losses do not fit altogether comfortably with the notion that each party is free to end the marriage.”14 the house of lords accepted that mr miller had brought substantial wealth into the marriage at its outset which it regarded as non-matrimonial property. he had added, hugely, to that wealth during the marriage and provided houses and a very wealthy lifestyle for himself and his wife. the award of £5 million to mrs miller was therefore viewed as appropriate in what was termed “this highly unusual case.” application of the principles in mcfarlane mrs mcfarlane appealed to the house of lords on the basis that the award of periodical payments made to her was for a fixed term of 5 years. her appeal was allowed. the house recognised the unusual combination of features in mcfarlane; the couple’s capital assets were insufficient to allow for an immediate clean break but mr mcfarlane had a substantial excess of income over his own and his wife’s reasonable needs. his high level of earnings was the result of their joint decision for mrs mcfarlane to give up a successful and highly paid career to care for her husband and their children. mr mcfarlane would continue to reap the benefits of this decision long after their divorce because his wife would continue to care for their three children, and would remain economically disadvantaged. she would almost certainly have difficulties in returning to her career as a successful solicitor once the children had left home; her career gap would have been too long. in these circumstances, mrs mcfarlane was entitled to an order which would reflect both her needs and compensate her for both her past and ongoing contribution to the relationship. the house of lords found that the court of appeal’s approach, unlike that of the district judge, had concentrated on the view that periodical 14 para 58. the denning law journal 218 payments were only permissible for the provision of needs. if capital accumulation was possible from periodical payments, the court of appeal viewed it as an indication that the award would need to be reviewed in the future to ensure that it only provide for her needs and was not compensatory. the house of lords did accept that mr mcfarlane might be able to apply successfully to a court at a later date for a deferred clean break which would allow him to sever his financial relationship with his wife if he could provide the appropriate capital to do so. however, that was a decision which mr mcfarlane would have to make in the future; it would be inappropriate and unjust to impose a time limit on the periodical payments which might not have provide sufficient compensation by the time that limit arrived. commentary what has been achieved in the search for fairness by the decision in miller and mcfarlane? both lord nicholls and baroness hale have imposed their own view of fairness which, as lord nicholls admitted, cannot be justified by logical reasoning. they have taken the check list of discretionary factors in the mca 1973 s 25 (financial resources; financial needs, obligations and responsibilities; the standard of living during the marriage; the age of each party to the marriage and the duration of the marriage; physical or mental disability of either party; past or future contributions of either party to the welfare of the family; conduct of either party; the value of any benefit which either party would lose as a result of the ending of the relationship), extracted from the check list needs and compensation and placed these two considerations at the top of the hierarchy of relevant factors. to these they have added a new principle equal sharing of assets dependent on the nature and source of the assets, where this is deemed to be judicially appropriate. they have given an even greater discretion to the judiciary by minimising or even discarding the remaining factors of s 25. it is time for a complete overhaul of the law relating to ancillary relief on divorce. too much is expected of the mca 1973. with or without judicial gloss, it is somewhat schizophrenic. the act both harks back to a time when marriage was regarded, at least at its outset, as a long-term commitment, whilst at the same time it acknowledges the need for clean breaks and new starts. new starts are not financially viable if there are children and there is insufficient capital. as to fairness, the act it never attempted to be fair; such an objective is judicially unachievable given the relative, and elusive, nature of fairness and because of the very nature of marriage and divorce. the law relating to marriage encourages spousal dependency; the law relating to divorce aims to make the ex-spouses responsible for their own future either the denning law journal 219 because there is insufficient resources for continued dependency or because there are sufficient resources to permit a “clean break”. the approach of the house to compensatory periodical payments, whilst it is to be welcomed demonstrates the difficulty for couples who fall between these two extremes. the mca 1973 does not permit these payments to continue after the payee’s re-marriage; they end automatically on such an event. the act is premised on the view that a divorced spouse who remarries becomes dependent on her new partner even though she may continue to suffer detriment resulting from a joint decision to further the career of her exspouse at the expense of her own; it denigrates women to a role of dependency on men. any reform of this area of law should consider the possibility of achieving a clean-break settlement, where there is insufficient capital for a lump sum compensatory payment, by using an actuarial evaluation of the payer’s future earnings and dividing the sum into periodical payments which would survive the payee’s re-marriage. the decision in miller and mcfarlane is most open to criticism in its approach to short-term marriages and indeed has already been heavily criticised by lay commentators in this regard.15 the three strands of fairness articulated will rarely be appropriate for short-term marriages. mr miller’s wealth was not engendered, in any way, by mrs miller during the marriage; she had incurred no detriment which required compensation. there was no justification for sharing in this wealth after such a short period of time. furthermore, her needs could be met from her evident ability to earn her living from the career she had immediately prior to the marriage. the decision, albeit a happy conclusion for mrs miller, will make the clamour for pre-nuptial agreements by wealthy spouses even louder. 15 the judgment was delivered on 24 may 2006, and no published academic comment was available at the time this case commentary went to press. the denning law journal 220 the facts (a) miller (b) mcfarlane (c) the high court decision in miller (d) the court of appeal decision in miller (e) the district judge’s decision in mcfarlane (f) the high court decision in mcfarlane (g) the court of appeal decision in mcfarlane (a) the concept of fairness (b) the three strands of fairness – needs (c) the three strands of fairness – compensation (d) the three strands of fairness equal sharing application of the principles in miller application of the principles in mcfarlane commentary obedience to doctrine in canon law: the legal duty of intellectual assent norman doe * interest in canon and ecclesiastical law has grown in recent years not least through the establishment in the church of england of the ecclesiastical law society (and its journal) in 1987. this has been, in part, a response to the need to promote the study of an aspect of church life that has undergone substantial development in the last thirty years. the period had seen the revision of the church of england's canons (in the 1960's), an increase in decisions of the ecclesiastical courts in the exercise of their faculty jurisdiction, and the very large body of legislation created by the general synod since its reform in 1969 in so many areas, synodical government, clerical discipline, relations with other churches, the care of cathedrals, legal aid for ecclesiastical litigation and the continuing debate over the ordination of women. this period has also seen the re-structuring of many of the constitutions of national churches in the anglican communion and, very significantly, the revision in 1983 of the code of canon law of the roman catholic church and the revision in 1991of the code of canons of the eastern (catholic) churches. the study of canon law has been neglected in british universities since it was banned at the reformation in the sixteenth century. though there is a compulsory study for those training for the roman catholic priesthood, anglican ordinands in england and wales receive no formal, comprehensive and systematic training in canon law, nor do practitioners of church law, such as diocesan chancellors, diocesan registrars, and archdeacons. standing as it does at the intersection oflaw and theology, as an object of scholarship canon law commends itself thoroughly. the central areas of concern in canon law, the law created by churches for themselves, the law created by the state for the church (sometimes known as the public ecclesiastical law) and according to some definitions the law created by god for the church, might be viewed and analysed from so many perspectives. indeed, one of the achievements of the ecclesiastical law journal, of the church of england, in recent years has been the analysis of church law from the perspectives * course director of the ll.m. in canon law, cardiff law school, university of wales. i should like to express my gratitude to miss michelle gooden, a summer research assistant at the cardiff law school, for her kind help in identifying many of the materials which form the basis of the discussion in this paper and for her help in clarifying some of the central ideas examined. 23 the denning law journal of theology, past canonical practices, its ecumenical comparisons with other systems of canon law, comparisons with the civil law, and with the central christian theological doctrines.! the scope of canon law is wide-ranging. essentially, however, in addition to the host of jurisprudential questions that might be asked of canon law (its basic authority, its justification and purposes), the main principles and rules of canon and ecclesiastical law may be categorised as dealing with constitutional church government, the powers and limitations on ecclesiastical institutions, with rights and duties of ecclesiastical persons, with the legality ofliturgical practices and the creation and regulation of forms of worship, with the regulation by law of the sacraments and other church services, particularly of admission to and exclusion from these, with the rules governing church property and with the relation between church and civillaw.2 the area of concern in this short paper is that of doctrine and the teaching authority of the church. this is, in itself, a very large subject and has since vatican ii seen in the roman catholic church a significant shift in canon law from the idea that the right to formulate and present church doctrine for public view is one vested in the ecclesiastical hierarchy (in the pastors of the church), to one in which all the faithful, lay and clerical, possess a magisterial function.3 one particular area of the law relating to doctrine is that of the authority which canon law ascribes to different forms of doctrine as produced by the various ecclesiastical institutions whether doctrines produced by institutions in the church are of sufficient authority to impose on the church member the duty of intellectual obedience to them, and the obligation not to dissent, either privately or publicly. the issue has acquired considerable topical interest in recent years in the church of england over the public statements of the bishop of durham in 1988 and his so-called 'trial-by-synod', when the general synod was called on but refused to condemn views which were considered by many to have challenged the church of england's teaching on the resurrection and the virgin birth. in the roman catholic church, the issue has come to the fore over the church's treatment in recent years of the celebrated theologians hans kung, edward schillebeeckx, and johannes baptist metz. the belgian edward schillebeeckx, a professor of theology at the catholic university of nijmegen in holland, 1. n. doe, "toward a critique of the role of theology in english ecclesiastical and canon law", 2 ecclesiastical law journal (1992), pp. 328-346. 2. for definitions of canon and ecclesiastical law, and its scope and object, see n. doe (ed.), essays in canon law: a study of the law of the church of wales (university of wales press, cardiff, 1992), pp. 69-74. for a definition by the church of england canonist garth moore, see b. hanson and t. briden (eds.), moore's introduction to english canon law 3rd edition (1992), pp. 1-9; for a roman catholic definition, see g. may "ecc1esiasticallaw", k. rahner (ed.), encyclopedia of theology (1981), p. 395, and p. huizing, "church and state in public ecclesiastical law", conciliurn 8(6) (1970),126 at p. 129. 3. j. a. coriden, t. j. green, and d. e. heintschel, the code of canon law: a text and cornrnent<lry (1985) 345f. see also, generally, j. a. coriden, introduction to canon law (1991), pp. 103-111, and h. fries, "is there a rnagisteriurn of the faithful?", conciliurn (1981) 177. 24 obedience to doctrine in canon law published in 1974a book, jesus: an experiment in chriscology, in which he argued that though jesus' existence was 'wholly the work of god's spirit' the virgin birth was simply a story devised after the event to express that truth through the imagery of a prophesy found in isaiah (7:14). schillebeeckx also wrote of the disciples' faith as being derived from their experience of the grace of forgiveness, not from a 'crude and naive realism' of a physical resurrection. after a five-year investigation he was summoned to and exonerated by a 'colloquium' of the vatican's congregation for the doctrine of the faith in 1979.4 at the same time, the swiss-born hans kung's infallible? an inquiry, published in 1970, resulted in a judgment of the vatican that he was no longer to be approved as a theologian allowed to teach at the catholic theology faculty at the university of tubingen.5 again, in 1979 father johannes baptist metz, the liberation theologian, was offered a chair at munich but the archbishop of munich, cardinal ratzinger, exercised his power of veto under a 1924 church-state concordat to block the appointment. the problem has also become important bearing in mind the roman catholic church's efforts to incorporate vatican ii's declarations on the place of human rights in the church and the 1983 code's recognition and protection of these, including that of freedom of thought and expression, as flowing from the dignity of the human person as well as from incorporation into the church through baptism.6 our basic problem is the extent to which canon law confers upon exercises of teaching authority, in the roman catholic church and in the church of england, the power to require intellectual assent, and therefore compliance in the form of conduct, with doctrinal statements formulated by those churches. related to this, of course, is the question of the canonical right to dissent from authoritative doctrines and the way in which this right is expressed and protected. there may be two basic forms of dissent: a private intellectual withholding of assent; and a public withholding of assent expressed in a positive challenging of or attack upon the doctrine of the church. we shall examine here, in outline, the legal position of assent to and dissent from ecclesiastical doctrines under the canonical systems of the roman catholic church and the church of england. i. roman catholic canon law: assent and dissent though roman catholic canon law confers upon all the faithful, lay and cleric, the 4. see generally f. a. sullivan, magisterium: teaching aurhoriry in rhe carholic church (dublin, 1983), p.217. 5. for a general survey see h. haring and k-j. kuschel (eds.), hans kiing: his work and his way (glasgow, 1979), pp. 79-101. 6. c. lara, "some general reflections on the rights and duties of the christian faithful", srudia canonica 20(i) (1986) 7; d. j. ward, "the rights of christians within the code of canon law", in j. hite and d. j. ward (eds.), readings, cases, marerials in canon law (collegeville, minnesota, 1990),p. 179, andj. langan, "can there be a human rights problem in the church?", 46 thejurisr (1986), p. 1. for the position before the 1983 code, see, e.g., p. lombardia, "the fundamental rights of the faithful", concilium, 8(5) (1969) 42. 25 the denning law journal right to present the christian doctrine for public view,7 it confers power to formulate doctrine only upon the magisterium, the clerical teaching authorities of the church. by canon 749 of the 1983 code canon law recognises, as a divine institution, the right of the pope unilaterally, and the college of bishops collectively (when gathered together in an ecumenical council, or whilst dispersed throughout the world), the power to formulate infallible or definitive doctrine. when the pope or college of bishops create definitive doctrine in matters offaith and morals, they do so under an exercise of supreme magisterial authority: this is an exercise of the universal extraordinary magisterium. by canon 750 the pope or the college of bishops might formulate definitive doctrine when they declare that a doctrine (as one contained in or derived from the 'deposit of faith') has been divinely revealed. canon 752 allows for the creation of a lesser species of authoritative doctrine in matters of faith and morals, non-definitive doctrine, formulated by the pope or college of bishops exercising their ordinary universal magisterium. and canon 753 allows the bishops, who individually do not possess infallible teaching authority, to create non-definitive doctrine in matters of faith. by canon law, then, these different species of doctrine enjoy different types of authoritative status in the roman catholic church. one fundamental question is the response each of these forms of doctrine requires from those to whom they are addressed, in particular the members of the church. 1. definitive doctrines in relation to definitive doctrines, when the magisterium formulates a doctrine infallibly, by canon law this gives rise to an apparently absolute duty of assent, an assent of faith. infallible doctrines are themselves irreformable and possess supreme authority. in relation to doctrines formulated under canon 750 the doctrine is authoritative because it represents simply a declaration of a truth entrusted to the church by christ or the apostles. such doctrines "must be believed with divine and catholic faith". as francis sullivan puts it: "the motive of the act of faith is not the reliability of the human messenger, but the truth of the word itself as word of god."8 according to canon 749 infallible doctrines must be "held definitively". according to the documents of vatican ii, when the magisterium defines a doctrine, it must "be adhered to with the submission of faith".9 the infallible doctrine of the bishops dispersed "must be held conclusively" . there is on the face of it no right of intellectual dissent. once it has been 7. see coriden, green and heintschel, commentary, canons 211, 225, 226, 747, 781. according to canon 211: "all the christian faithful have the duty and the right to work so that the divine message of salvation may increasingly reach the whole of humankind in every age and in every land." 8. f. a. sullivan, "magisterium", in j. a. komonchak, m. collins, and d. a. lane (eds.), the new dicrionary of theology (1987), p. 617. 9. a. flannery (ed.), varican councr'll!: the conciliar and posrconciliar documents, vol. i (new york, 1988), p. 379 (for the dogmatic constitution lumen gentium (1964) 25). 26 obedience to doctrine in canon law declared as definitive, the doctrine requires an assent of faith: it must be held as definitive and true by the faithful member. when the magisterium gives a definitive judgment on a matter of faith this "puts an end to freedom of opinion on the matter" it becomes "the normative faith of the community". 1 0 thus, for example (and this was an issue in the debate over hans kung), members of the roman catholic church are under a legal duty to give an assent intellectually to the idea that when a pope pronounces a definitive judgment he is gifted by the holy spirit with that infallibility which christ endowed the church in defining matters of faith and morals. this doctrine itself was declared infallibly by vatican i: it is an irreversible doctrine, and canon law requires an irreversible assent to it from the faithfu1.ll here the only possible right of dissent is based on technical, and largely theoretical, challenges to the exercise of the infallible magisterium as being canonically ultra vires. for example, if the doctrine is to be treated and obeyed as infallible, the magisterial authorities under canon 749 must declare it as such. if it is not declared as definitive it may not give rise to an absolute assent of faith. if the subject-matter of the doctrine is not one concerning faith and morals, then the doctrine may not give rise to an absolute assent. if the magisterial authority was coerced, or was not elected lawfully, or ordained unlawfully, then similarly the duty of assent may not arise as, canonically, this will not properly speaking be an infallible exercise of the magisterium. 2. non-definitive doctrines when a doctrine is non-definitive, formulated by the church's ordinary magisterium, under the 1983 code it too possesses an authority and it has an obligatory nature. the declaration lumen gentium (1985) of vatican ii, itself a non-definitive doctrine (because the council chose not to create definitive doctrine), stresses that non-definitive doctrines impose the obligation of "respect and submission of the will and mind" and the duty "to adhere sincerely" to them. a papal encyclical is a typical medium for the expression of non-definitive doctrine. no pope has claimed to teach infallibly in an encyclica1.12 when, for example, paul vi's encyclical humanae vitae (1986) reiterates the ban on contraception, this piece of doctrine, via the duties imposed by canon law, requires not only some form of intellectual assent (about the rightness of the papal moral teaching), but also an external response, a form of conduct on the part of the faithfu1. this piece of ecclesiastical doctrine therefore has a quasi-legal nature: in 10. f. a. sullivan, magisterium, pp. 79-118. 11. k. rahner, "magisterium", in k. rahner (ed.), encyclopedia of theology (1981), p. 871. see generally, t. horvath, " a structural understanding ofthe magisterium of the church", science et esprit, 29(3) (1977) 283, and w. m. thompson, "authority and magisterium in recent catholic thought", chicago studies (1977) p. 278. 12. f. a. sullivan, magisterium, p. 155. 27 the denning law journal conjunction with the canon law, which requires some form of obedience to the doctrine, the doctrine is to be treated as if it were law.13 roman canonists are not in agreement, however, about the precise obligation canon law places on the faithful with regard to non-definitive doctrine. the crucial word in the canons is obsequium. canon 752 has been translated by the canon law society of america as imposing a "religious respect of intellect and will, even if not the assent of faith" on the faithful towards non-definitive doctrine created by the pope or the college of bishops. again, canon 753 is translated as imposing an obligation of "religious respect" to the non-definitive doctrines of individual bishops or conferences of bishops in matters of faith. if the obligation, if obsequium, is interpreted in this way, then there seems to be scope, arguably, for the right of dissent to operate in relation to non-definitive doctrines of the magisterium. when the encyclical on contraception imposes rules of conduct as well as a mental acceptance of the moral propriety of the teaching in it, there is, then, on this translation, no absolute duty of obedience. indeed, this is the understanding of b. c. butler: 'due respect' only is owed to such teaching, an interpretation also favoured by the italian translators of the expression (ossequio); the italian edition of lumen gentium actually translates obsequium as rispeuo.14 however, other translations of the term suggest that the duty under canon 752 is stronger. it imposes an obligation of obedience, not simply respect. the term 'submission' is used by the canon law society of great britain and ireland in its translation of obsequium, the french translation uses soumission, and the german gehorsam. indeed, this understanding is close to the view of pius xii in his 1950 encyclical humani generis. as to the question at issue in the encyclical, the pope stated that it "can no longer be considered a subject for free debate." this too is the view of francis sullivan who points to the principle appearing in lumen gentium that the faithful must "sincerely adhere" (adhaerere) to such doctrines. is in short, it is unclear from the text of the code itself whether the duty imposed on the faithful is merely to respect such doctrines or to submit the will and mind to them in obedience. the question remains, therefore, whether a member of the faithful might dissent intellectually and in conduct from such doctrines. after all, as nondefinitive doctrine is just that, reformable, open to error and not an exercise of solemn infallible teaching authority, or it is not the intention of the doctrine-maker for the doctrine to be binding, it is arguable that the individual is free to dissent. 13. sullivan is ofthe view, however, that (a doctrinal document such as) 'humanae vitae is not church law', because law does not require an intellectual response, an acceptance of its moral worth: ibid., p. 162. for the connection between doctrine and canon law in roman catholic thought, see t. urresti, "canon law and theology: two different sciences", concilium, 8(3) (1967) 10. 14. b. c. butler, "infallible; authenticum; assensus; obesquium. christian teaching authority and the christian's response", doctrine and life, 31 (1981) 77. see also the first class survey by f. a. sullivan. "the response due to the non-definitive exercise of magisterium", studia canonica, 23 (1989) 267, at p. 268. is. f. a. sullivan, magisterium, pp. 158-166. 28 http://www.ingentaconnect.com/content/external-references?article=0039-310x(1989)23l.267[aid=7383798] obedience to doctrine in canon law the matter is made a little clearer, that the obligation imposed by canon 752 allows scope for internal dissent, by some official statements and the opinions of some 'approved authors' . the view of the sacred congregation for the doctrine of the faith from 1988 (whilst investigating the american father charles curran's attack on the encyclical humanae vitae on birth control) was that a person may have a right to private dissent from such doctrines if there is a "personal certitude that the teaching of the church is incorrect."16 similarly, in the opinion of the approved authors palmieri (writing in 1891), pesch (writing in 1924) and lercher (writing in 1951), there was a possibility oflegitimate non-assent to authoritative but non-infallible papal teaching if the individual had "reasons that are persuasive (even if inculpably erroneous)"; a person could dissent if there were "sufficient reasons for doubting", or ifhe had "grave suspicion that the presumption of truth which official teaching enjoys is not verified in this case."17 though this is not stated in the code itself, and in a legal system that does not employ a doctrine of binding judicial precedent, it must be remembered that in interpreting the code recourse might be had, under canon 19, to "the common and constant opinion of learned writers". 3. the explicit right of dissent we have so far attempted to construct a right to dissent by concentrating on the elements of the duty of assent, and the uncertainties surrounding the meaning of obsequium. the right to dissent privately and publicly from the church's authoritative doctrines may be found, however, in the code's lists offundamental rights enjoyed by all the faithfulrights which may be vindicated judicially in the ecclesiastical courts of the roman catholic church. and here we meet a basic tension in roman catholic canon law, for, under canon 754, "all the christian faithful are obliged to observe the constitutions and decrees which the legitimate authority of the church issues in order to propose doctrine and proscribe erroneous opinions." first, freedom of intellectual dissent from doctrine is conferred by canon 748: "persons cannot ever be forced by anyone to embrace the catholic faith against their conscience." this canon does not apply to the expression of opinions contrary to the teaching ofthe church. it relates only to the mind of the individual. the commentaries on this canon are not very satisfactory. the canon is taken from vatican ii's declaration on religious liberty, digniracis humanae (1965). this states that the right to religious freedom is based on the "very dignity of the human person": it is a human right which canon law merely presents. though "endowed with reason and free will", individuals are bound by a "moral obligation" to seek the truth and "to adhere to the truth once they come to know it and direct their 16. c. e. curran, faithful dissent (kansas city, 1986), pp. 201-202. 17. for a discussion ofd. palmieri's tractatus de romano ponti/ice cum prolegomeno de ecclesia (1891), c. pesch'spraelectiones dogmaticae (1924), and l. lercher's institutiones theologicae dogmaticae in usum scholarum (1951), see sullivan's article in scudia canonica 23 (1989) 267, at pp. 276-78. 29 the denning law journal lives in accordance with the demands of truth." but individuals cannot be forced to this. "for this reason the right to this immunity continues to exist even in those who do not live up to their obligation of seeking the truth and adhering to it." the declaration states that "it is through his conscience that man sees and recognises the demands of the divine law. he is bound to follow his conscience faithfully in all his activity so that he may come to god ... therefore he must not be forced to act contrary to his conscience ... especially in religious matters. the reason is because the practice of religion of its very nature consists primarily of those voluntary and free internal acts by which a man directs himselfto god." 18 though expressed in absolute terms in relation to definitive doctrine, it appears that, ultimately, even the canonical duty to assent to this is unenforceable. secondly, there is the right to express publicly opinions contrary to church doctrine. by canon 212(3), the faithful have "the right and even at times the duty to manifest to the sacred pastors their opinion on matters which pertain to the good of the church." the canon also provides that the faithful "have a right to make their opinion known to the other christian faithful." as james provost suggests, however, this explicit right to express opinion is not unfettered. 19 it is a right to which several duties are attached, first and foremost the limitation relating to subject-matter. the individual may express an opinion only regarding the good of the church but the code does not explain this. provost is of the view, though, that such opinions "could be favourable or critical" this right, with this limitation, simply allows the expression of an opinion, which may be an opinion about the church's doctrine. here there is an apparent contradication in the canon law. the law allows a faithful member to express an opinion which might contradict the teaching of the church. by implication, one might think that the canon therefore allows the individual to 'hold' intellectually an opinion contrary to the teaching of the church. however, because of the duty of assent (or respect), this is unlikely to be the meaning of the canon. when the individual expresses an opinion about the church's doctrine he is exercising a canonical right. but also the canon law requires that person to assent to that doctrine intellectually. the commentaries are not helpful on this point. presumably one has the right to express another's opinion, or an opinion which one does not hold. or else this canon is an exception to the duty of submission and within its terms one may (according to the view of pesch, for example) still hold contrary opinions if there is a good reason. in any event, there are other limitations envisaged by canon 212. when they express these opinions, the faithful are under a canonical duty to have "due regard for the integrity of faith and morals and reverence towards their pastors, and [have] consideration for the common good and the dignity of persons." a third right is conferred by the code upon theologians: the right of free inquiry 18. see a. flannery, vatican council i/, vol. i, pp. 800-805. 19. coriden, green and heintschel, commentary, pp. 146-7. 30 obedience to doctrine in canon law and theological expression and dissent and an autonomous right of academic freedom to those engaged in theological study. canon 218 is drawn from vatican ii's gaudium et spes (1966). it states: "those who are engaged in the sacred disciplines enjoy a lawful freedom of inquiry and of prudently expressing their opinions on matters in which they have expertise, while observing a due respect for the magisterium of the church." unlike the other rights, this is not described or treated as a 'human right': it is merely treated as a kind of concession, a 'lawful freedom'. it is, as such, changeable and able to be destroyed. the canon applies to those involved in studies in seminaries and universities. both clergy and laity are given this right. provost's view of the canon is that "at the very least, the ecclesiastical magisterium must be acknowledged and taken into serious consideration in expressing theological opinions." but, he says, "this does not rule out dissent", when this is based on respect.20 the international theological commission's theses on the relationship between the ecclesiastical magisterium and theology (1975) are helpful here. these set out guidelines for dissent: dissent is possible if it is grounded in a "true respect for the magisterium even while disagreeing with it on a particular point." and this was the view of cardinal joseph ratzinger who, in 1969, maintained that "criticism of papal pronouncements will be possible and even necessary, to the degree that they lack support in scripture and the creed, that is, in the faith of the whole church."21 thirdly, the right to dissent may be latent within defences to doctrinal offences under roman catholic canon law. the code distinguishes two doctrinal offences. first, the code creates four basic offences against religion and the unity of the church. canon 751 states: "heresy is the obstinate post-baptismal denial of some truth which must be believed with divine and catholic faith, or it is likewise an obstinate doubt concerning the same." the canon defines apostacy as "the total repudiation of the christian faith." schism is "the refusal of submission to the roman pontiff or of communion with the members of the church subject to him." and blasphemy is an offence under canon 1369: "a person who uses a public show or speech, published writings, or other media of social communication to blaspheme, seriously damage good morals, express wrongs against religion or . against the church or stir up hatred or contempt against religion or the church is to be published with a just penalty." these definitions are much the same as the 1917 code. the revisers of the code made the point that they may be committed, though the code does not say this, 20. ibid., pp. 151-2. see also p. huizing and k. waif, "what does the 'right to dissent' mean in the church?", concilium 158 (1982) 3, and h. haring, "the rights and limits of dissent", ibid., 95, and j. provost, "the catholic church and dissent", ibid., p. 13. 21. the official latin text of the theses, with a commentary by o. semmel roth and k. lehmann, is published in gregorianum 57 (1976), pp. 549-63. an english translation is to be found in c. e. curran and r. a. mccormick (eds.),readings in moral theology no.3: the magisterium and moraliry (new york, 1982), pp. 151-170. see also r. m. gula, "the right to private and public dissent from specific pronouncements ofrhe ordinary magisrerium", eglise er theologie 9 (1978), p. 319. 31 the denning law journal only when there is evidence of 'bad faith'. if the denial or repudiation is not in bad faith, then this does not amount to heresy or apostacy. arguably, therefore, there is a right to repudiate or deny in good faith but this is not defined. also, in relation to heresy, the denial or doubt must be "obstinate" percinax prolonged over a period. and heresy may be committed only in relation to those doctrines formulated under canon 750 doctrines presented as part of the revealed deposit offaith. it does not apply to a rejection or denial of non-definitive doctrine. one presumes that a person still has the right to dissent from non-definitive doctrines without becoming a heretic. the penalties for heresy, apostacy or schism, found in canon 1364, are automatic excommunication for lay people and for clerics, excommunication or suspension, deprivation, or penal transfer. in addition to these the general defences in canons 1323 and 1324 may be available unwitting or accidental violation of law, violation out of ignorance, fear or necessity, for instance. the second category of doctrinal offences are those committed against church authorities. according to canon 1371, the following are to be punished with a just penalty: "a person who teaches a doctrine condemned by the roman pontiff or by an ecumenical council"; also, "a person who pertinaciously rejects the doctrine mentioned in canon 752 and who does not make a retraction after having been admonished by the apostolic see or by the ordinary." in other words, it is an offence, punishable with a just penalty (which may include excommunication), to violate the duty of assent/respect imposed by canon 752. canon 1371 creates, therefore, it seems, two offences: one public the expression or teaching of doctrines contrary to those of the pope or council; and the other private the failure to assent to non-definitive doctrines of the ordinary magiscerium. this is a new doctrinal offence: dissent from the ordinary, nonfallible magiscerium. however, if the individual retracts his dissent, then he does not suffer a sanction. the practical effect, then, is that there is still in fact a right to dissent, for the period of dissent, if the offender subsequently makes a retraction. also, if a person does not assent for the reasons spelt out in canons 1323 and 1324 he will be excused from sanctions. ii. the church of england the roman canon law governing the creation of doctrine, its authoritative status, and the response due from its recipients, certainly gives rise to an obligation on the part of the faithful; at least to respect that doctrine, at most to give an intellectual assent and a submission of the will to it. the right to dissent privately and publicly from such doctrines arises, though the canon law is not clear on this point, if the individual dissents in good conscience. in roman canon law it is a fairly straightforward task to identify the location of theological or doctrinal statements. the sources of roman catholic doctrine are clearly to be found in the deposit of faith, as transmitted in scripture and tradition, in the definitive pronouncements on faith produced by the universal magiscerium, in the non-definitive doctrinal statements of the ordinary magiscerium, in the 32 obedience to doctrine in canon law constitutions, decrees, declarations, encyclicals, and pastoralleners of popes, the college of bishops, of individual bishops, of conferences of bishops. 1. the doctrine of the church of england whereas roman canon law expresses a developed idea of official doctrines, issuing from the supreme and ordinary magisterium, the law of the church of england is, at first sight, rather simpler. canon a5 of the revised canons ecclesiastical 1964-70 makes the general claim that the doctrine of the church of england "is to be found in the thirty-nine articles of religion, the book of common prayer, and the ordinal." the canon also spells out the source of these doctrinal documents and also their extra-legal, their theological, authority. "the doctrine of the church of england is grounded in the holy scriptures, and in such teachings of the ancient fathers and councils of the church as are agreeable to the said scriptures." this canonical definition (by means of sources) ofthe doctrine of the church of england has been given legislative approval indirectly by s.5(1) of the church of england (worship and doctrine) measure 1974: "references in this measure to the doctrine of the church of england shall be construed in accordance with the statement concerning that doctrine contained in the canons of the church of england." garth moore was of the opinion that the theological doctrine of the church of england "is that of the western catholic church immediately before the reformation", as modified at the time of the reformation and since. thus, at least in part, its doctrine is contained in the book of common prayer, in the thirtynine articles, in the canons of 1603 and 1969, in the homilies, in "acts of parliament and ... the judgments of the courts." moore maintained that "all these in varying degrees may be said to be authoritative not necessarily right, but binding until altered. "22 whereas the roman church law claims for its definitive doctrines infallibility, the law ofthe church of england does not. by law, church of england doctrines are closer to the roman canonical 'non-definitive' doctrines of the ordinary magisterium: they may not be true but they possess 'some' authority. the proposition that these doctrines of the church of england are 'legally approved' simply means that the law recognises this as the doctrine of the church of england. this is the law's first function definition to define what are the church's doctrines. a second consequence is that the doctrines contained in the thirty-nine articles and in the prayer book can be altered only by act of parliament or synodical measure.23 under the 1974 measure, the synod may make new forms of worship "but the powers of the general synod under this subsection shall be so exercised as to ensure that the forms of service contained in the book of common prayer continue to be available for use in the church of england." 22. t. briden and b. hanson (eds.), moore's introduction to english canon law 3rd. ed. (1992), pp. 49-50. 23. halsbury's laws of england, vol. 14, ecclesiastical law 4th ed., (1975), paras. 335,936, n. 3. 33 the denning law journal other doctrines, contained for example in the resolutions of lambeth conferences, those of the general synod (such as emerged in the david jenkins' debate), acts of convocations, and reports of commissions fall into the category of persuasive doctrinal authorities. as the anglican communion has no central legislative body, the lambeth conferences have repeatedly asserted that its doctrinal statements are merely guidelines and not binding.24as halsbury puts it: such doctrines "have thereby derived on a consensual basis an authoritative character in the churches which have accepted them."25 indeed, one of the difficulties in determining the authority of doctrines outside those legally approved is the view (endorsed by, for example, the church of england's doctrine commission in 1922)that: "there is not, and the majority of us do not desire that there should be, a system of distinctively anglican theology."26 unlike definitive doctrines in roman catholic canon law, the preface to the book of common prayer 1662 and the thirty-nine articles 1571 both lay down the basic principle that ecclesiastical doctrine is reformable. 27upon this basic idea a legal principle has emerged applicable to the established church. it is no better spelt out than by the house of lords in general assembly of the free church of scotland v. lord overton (1904): "where the state has by legislative acts established a church identified by certain doctrines, that church cannot, while retaining the benefit of establishment, exercise any power of altering those doctrines without the legislative sanction of the state." lord halsbury stressed in the case that "it is to be remembered that a court of law has nothing to do with the soundness or unsoundness of a particular doctrine."28 this principle has been applied of course to the church of england. indeed, the whole assumption behind the litigation in brown et al v. runcie et al (1991) was that procedures for the creation of doctrine imposed by legislation must be followed.29 today, though parliament may create, approve or amend doctrine (indeed, in 1928 it was parliament that blocked the revision of doctrine contained in the proposed prayer book), it is primarily the general synod which may formulate legally approved doctrine. but it is not an unfettered power. the church of england (worship and doctrine) measure (s.4) imposes a self-limiting substantive 24. g. r. evans and j. r. wright (eds.), theanglican tradicion: a handbook of sources (1991), pp. 383, 389-390. 25. halsbury, ecclesiascical law, para. 314. 26. see evans and wright, the anglican tradicion, pp. 345,401. see also believing in che church: the corporace nacure of faith: a reporc by the doctrine commission of the church of england (1981). 27. art. xxxiv of the thirty-nine articles of religion (1571) states: "it is not necessary that traditions and ceremonies be in all places one, or utterly alike, for at all times they have been diverse, and may be changed of countries, times and man's manners." also, "every particular or national church, has authority to ordain, change, and abolish ceremonies or rites of the church ordained only by man's authority." see e. j. bicknell, a theologicallncroduclion co the thircy-nine arcicles of che church of england 2nd ed. (1925), pp. 376-388. 28. [1904] a.c. 515, at p. 648. 29. (1991) the times, february 20. 34 obedience to doctrine in canon law duty on the general synod only to create forms of service (when these express doctrine), in every canon or regulation providing for worship, which are consistent with and not departures from the doctrine of the church of england. when it creates new forms of service it is under a legislative duty to exercise its powers "to ensure that the forms of service contained in the book of common prayer continue to be available for use" (s.l, 1974measure). when doctrine is altered by measure, the measure must be referred under schedule 2 of the 1969 synodical government measure to the synod's house of bishops; the form of the measure for final approval must be that as approved by the bishops. the measure must then also be approved by the two convocations sitting separately before final approval by the synod. when the alteration is by canon, such a canon might be submitted for royal licence and assent only if it has been approved by no less than a two-thirds majority in each house of synod. 2. the legal obligacion of belief the roman catholic canonical duty of assent to definitive doctrines finds a parallel in the church of england's basic principle (in article vi of the thirtynine articles) that only those doctrines which are contained in holy scripture, or "proved thereby" (deriving from scripture), require an assent offaith: only these must, according to the legally approved doctrine contained in the thirty-nine articles, "by law", be believed. indeed, under canon cis in their declaration of assent, archbishops, bishops and clergy, are obliged to declare their "belief in the faith which is revealed in the holy scriptures." the law of the church of england imposes the legal duty to give an assent of the intellect, a legal obligation of belief, to scriptural doctrines, or those deriving from scripture, upon all the faithful. in contrast, it imposes the obligation of intellectual assent to doctrines contained in the authoritative english theological documents only upon the clergy and lay office-holders in the church of england, not upon the all faithful. according to s.2 of the church of england (worship and doctrine) measure 1974, "it shall be lawful forthe general synod to make provision by canon with respect to the obligations of the clergy, deaconesses and lay officers of the church of england to assent or subscribe to the doctrine of that church and the forms of that assent or subscription which may include an explanatory preface." as halsbury points out, under the clerical subscription act 1865, "formerly no clergyman could be ordained or hold a living or curacy without making his declaration of assent to them." however, this has been repealed by the synod's 1974 measure (schedule 1(1)). canon cis of the revised canons of course sets out the terms of the modern declaration of assent that must be taken by clerics. the preface to the declaration states that the church of england "professes the faith uniquely revealed in the holy scriptures and set forth in the catholic creeds ... it [the church] has borne witness to christian truth in its historical formularies, the thirty-nine articles of religion, the book of common prayer and the ordering of bishops, priests and 35 the denning law journal deacons." the declaration imposes on clerics "loyalty to this inheritance of faith". under canon cis, archbishops, bishops and clergy are under a duty (the word used in the canon is "shall") to make this declaration of assent. this is a canonical duty of intellectual assent structured in a way very similar to the roman catholic duty of intellectual assent or submission incumbent on all the faithful. as the canons, according to the principle stated in, for example, bishop of exeter v. marshall (1868), are binding on the clergy in spiritual matters, assuming assent to doctrine is a spiritual maner, we might reasonably conclude that the clergy are under a legally enforceable duty, derived from the canons, to give intellectual assent to the doctrines contained in the articles of religion.30 in the event that they do not, this is the legal basis of possible disciplinary action effected executively or judicially or the occurrence of the other legal consequences. this is effectively what was attempted in gorham v. bishop of exeter (1850). gorham maintained, amongst other things, that infants were not made members of the church at baptism. the queen's presentation of him, and his induction, was refused by the bishop. he held "unsound doctrines, contrary to the true christian faith, contrary to and inconsistent with the doctrine of the church of england", against the thirty-nine articles, the prayer book and so on. the court of the arches upheld the bishop's refusal to induct. though the question for the privy council was jurisdictionalwhether an appeal would lie to it or the upper house of convocation (it held that appeal did lie to the privy council) the effect of the arches' decision was that the cleric was to be disadvantaged for his lack of assent. 31 indeed, when the worship and doctrine measure under s.4 recognises the synod's power to create by canon the requirement for such declarations of assent, in so doing the synod is bound to ensure, "as in the opinion of the general synod", that these are "neither contrary to, nor indicative of any departure from, the doctrine of the church of england in any essential matter." the legal duty imposed on clergy to assent intellectually to the church's doctrines is also imposed, of course, on lay officers of the church. under s.2(2) of the worship and doctrine measure 1974" 'lay officers' means licensed workers, readers, lay judges of consistory or provincial courts, and lay holders of other offices admission to which is for the time being regulated by canon." for example, the judicial ecclesiastical officer, the diocesan chancellor, is obliged under canon g3 to assent "to the faith which is revealed in the holy scriptures and set forth in the catholic creeds and to which the historic formularies of the church of england bear witness" (canon g3). the diocesan registrar must make the same declaration. 30. (1868) l.r. 3 h.l. 17. 31. (1850) moore's special report 462; (1850) eng. repts. 177:this report is not accurate and does not contain many of the judicial statements found in moore's special report. for the unreliability of the english reports see m. smith, "on using the english reports as a source for ecclesiastical law: a cautionary tale", 1(3) ecclesiastical law journal (1988), p. 32. for a discussion of the history of the declaration of assent, the generality of modern declarations (and the scope for intellectual freedom), see the 1981 doctrine commission's report believing in the church, pp. 129-134. 36 obedience to doctrine in canon law whereas clergy have a legal duty, via their declaration, to assent intellectually to the doctrines in the formularies and the thirty-nine articles, the lay faithful are not under a legal duty to do so. unlike roman catholic canon law which imposes the duty of intellectual assent, to definitive and non-definitive magisterial doctrine, on all the faithful, the laity of the church of england simply have a 'right', not a duty, to assent intellectually to the legally approved doctrines. when it says that the thirty-nine articles are agreeable to the word of god, canon a2 states that these articles "may be assented to with a good conscience by all members of the church of england. " canon a3 also says, of course, that the form of worship contained in the book of common prayer, and by implication the doctrine contained in it, "may be assented to" by the church's members. the principal effect of the rule that the laity have not got a duty of assent, is that they have a public legal right to private rejection of the church's doctrines. the law confers on them the right of free religious thought, even as members of the church. they have a legal right to withhold intellectual assent to the church's legally authoritative doctrines. (this is of course not a legal right enjoyed by roman catholics.) however, there may be a public obligation to assent. the moment at which a church of england member publicly withholds assent, or challenges these doctrines, may have legal consequences. a public denial of these doctrines may result in the imposition of ecclesiastical sanctions not necessarily enforceable judicially in the courts, but enforceable executively by the clergy such as refusal of admission to the sacraments. 3. the right to dissent and doctrinal offences in the church of england the law provides that an individual has a right to withhold intellectual assent to the doctrines of the church, and to disagree with that doctrine publicly, if this does not constitute an ecclesiastical doctrinal offence. unlike roman catholic canon law, there is no separate and distinct right to dissent conferred explicitly by church law. as with the problem of rights in civil law, if it exists, the ecclesiastical right to dissent might be explained under the standard residualist theory of constitutional law. an individual has the right to contradict privately or publicly the legally approved doctrines of the church of england insofar as their contradiction is not forbidden by church law. the ecclesiastical jurisdiction measure 1963, s.14, provides that proceedings may be instituted under the measure against any of the persons specified in s.17 charging "(a) an offence against the laws ecclesiastical involving matters of doctrine, ritual and ceremonial." proceedings for doctrinal offences may be brought under s.17 against an archbishop, any diocesan bishop, or any suffragan bishop commissioned by a diocesan bishop, or any other bishop, or a priest or deacon. proceedings may be brought only when, at the time ofthe commission of the offence or when proceedings were instituted, the cleric held or holds preferment in any diocese or resided in a diocese. the first point to make is that doctrinal offences might not be committed by the laity or by lay ecclesiastical 37 the denning law journal officers. it is arguable therefore that, on the face of it, because of the terms of the measure, and its exclusive application to the clergy, there is a fundamental right of dissent under church law (the common law of blasphemy excepted) vested in the laity and lay ecclesiastical officers. indeed, with lay officers who are obliged to make a declaration of assent, the position is no different; proceedings for doctrinal offences cannot be brought against them simply because the canons of the church of england are not, in law, binding on the laity. it seems to be a settled principle that the ecclesiastical courts do not possess jurisdiction to entertain suits against the laity. 32 by s.15 the offence may be proceeded against only if committed "within the province of canterbury or york". and by s.16 there is a limitation period of three years for doctrinal offences: "no proceedings ... shall be instituted unless the act or omission constituting the offence, or the last of them if the offence consists of a series of acts or omissions, occurred within the period of three years ending with the day on which proceedings are instituted." this is an important point. if the doctrinal offence is based on a public dissent, a cleric's public challenge of the church's doctrine, there is a right to dissent (because the dissent will by operation of law not result in proceedings). the right operates retrospectively to cure an earlier illegality: it arises after the expiration of the limitation period. a cleric's otherwise illegal public expression of dissent is by law not actionable once a period of three years has elapsed since the dissent. in these circumstances, a doctrinal offence is incapable of being followed by ecclesiastical criminal proceedings. again, the right to dissent is latent within the rule about limitation periods. according to s.lo, of course, proceedings for a doctrinal offence are to be heard in the court of ecclesiastical causes reserved. in exercising its jurisdiction this court, under s.45(3), is not bound by any decision of the privy council in cases involving doctrine. by s.18 of the ecclesiastical jurisdiction measure 1963 proceedings against archbishops or bishops must be by way of complaint laid before the registrar of the relevant province; and those against priests or deacons by way of complaint laid before the registrar of a diocese. section 19 of the 1974 measure sets out a list of those having locus standi to make a complaint of a doctrinal offence against priests and deacons. these are "authorised complainants" (under s.66 one authorised by the bishop); in the case of incumbents of a parochial benefice, the complaint may be made by six or more persons of full age whose names are on the electoral roll; in the case of a stipendiary curate licensed to a benefice, the complaint may be made by the incumbent. 32. h alsbury, ecclesiastical law, para. 308; w. dale, the law of fhe parish church 6th ed. (1989), chs. 4 and 5. for judicial recognition of the idea, see lord hardwicke's statement in middleton v.crofts (1736), discussed in the report of fhe archbishops' commission on the canon law of the church of england (1947), and blune v. park lanehoulud. [1942] 2 k.b. 253. the canons will bind the1aityonly insofar as they are declaratory of the generallaw. they are, of course, binding on the c!ergy: see bishop of exeter v. marshall (1868) l.r. 3 h.l. 17. 38 obedience to doctrine in canon law basically, in english church law, there are five doctrinal offences: heresy, blasphemy, depraving the prayer book, maintaining impious opinions contrary to the christian religion, and doctrines repugnant to the thirty-nine articles.33the basis upon which a doctrinal offence might be committed, of course, is to challenge the statement, contained in the canons, that the doctrine of the church of england is grounded in scripture, the teachings of the fathers and the councils as agreeable to the word of god. again the right to dissent is latent within the definitions of these offences, the areas to which the offence does not apply according to its terms, and it arises within the recognised defences to these offences: whenever an individual might legally be excused of his dissent; or when dissent is justified. according to burn, if a cleric advances publicly "a false opinion repugnant to some point of doctrine clearly revealed in scripture and either absolutely essential to the christian faith or at least of most high importance", then he is guilty of heresy.34the leading case is williams v. bishop of salisbury (1864).35though it may still represent the law, we must be cautious about its practical applicability today. williams was a clerk in holy orders and was prosecuted under the church discipline act 1840 for publishing heretical doctrines in contravention of the thirty-nine articles. these, the report says, were of a criminal nature. there were twenty-two charges against williams, including his argument that the bible is "an expression of devout reason", "the written voice of the congregation" and not "the word of god", that the offering of christ was not for the propitiation of the sins of the whole world. williams was found guilty of the charges by the arches court. on an appeal from the arches court to the privy council, the lord chancellor set out some basic principles which help us to construct our right of dissent. they fall into two categories. first, in relation to matters of doctrine on which the church has not given any definite rule or standard of faith or opinions, the lord chancellor said, "there is so far freedom of opinion that they may be discussed without penal consequences." if a rule on a matter of doctrine is not "expressly and distinctly stated, or which is not plainly involved in or to be collected from that which is written", we might conclude that there is a legally enforceable right of free thought and free expression: in cases where the doctrine of the church is silent or neutral. secondly, however, if the court is satisfied that an individual has committed heresy, still the dissent may be 'cured' ifthe procedural rules concerning the prosecution of heresy are not followed. the privy council's recommendation that williams' sentence (given by the arches court) be reversed, was based on this ground. the privy council set down the procedural requirement that the articles of charge must 33. see halsbury, ecclesiastical law, para. 1354. 34. r. burn, ecclesiastical law 4th ed. pp. 304, 305. 35. (1864) 2 moorep.c.c.n.s. 375. our use of this case must be cautious. it is a privy council decision and under the ecclesiastical jurisdiction measure 1963, ss. 45, 48, these decisions in matters of doctrine are no longer binding on the court of ecclesiastical causes reserved. it remains, however, a persuasive authority. 39 the denning law journal distinctly state the opinions which the cleric maintains and must set out the published passages of the work in which the heretical statements appear. the articles of charge must specify the doctrines of the church which the individual's statements are alleged to contravene. in short, if these procedural rules are not followed by the church authorities in a doctrinal prosecution, then the accused escapes liability. conclusion disciplinary action taken in the roman catholic church against hans kung and johannes metz, the lengthy investigations of theologians such as schillebeeckx, and the debate in the church of england over david jenkins, bishop of durham, and john robinson, bishop of woolwich and the author of honest to god (1963), raise important questions about freedom of thought and expression in these churches.36 what is crucial to recognise is that these issues are fundamentally questions of canon law. the right of such people to freedom of thought and expression is determined by an analysis of the internal law of these churches. as disciplinary action by ecclesiastical authorities in the roman catholic church is governed by the duty of assent to definitive doctrines, and the confused position of submission to non-definitive doctrines of the magisterium, so freedom of and expression is rooted in a right implicit in the exceptions to these duties and in the explicit right of dissent based on conscience. in the church of england, though there are equivalent duties of assent to the church's doctrines, the basic legal principle is that any statement of doctrine not clearly offensive to the church's legally approved doctrines, or upon which the church's doctrines are silent, is not actionable in the ecclesiastical courts. the church possesses legal power to institute doctrinal proceedings. but, as a matter of fact, the ecclesiastical courts have not entertained such proceedings in recent years, even when these have seemed likely. for this reason it is tempting to conclude that something like an ecclesiastical convention has developed, fettering the use of these legal powers, giving to synod rather than the courts the function of resolving such questions. whatever the role of the difficulty in identifying whether a statment is offensive to ecclestiastical doctrine, an essentially theological problem, or whether inaction by church authorities is now explicable by means of ecclesiastical convention, in the final analysis, it is the canon law which, in the church of england, and in the roman catholic church, supplies the right to the individual's private and public withholding of assent to ecclesiastical doctrine. 36. for the robinson controversy, see k. w. clements, lovers of discord: twentieth century theological controversies in england (1988), pp. 178-217. for the synod debates, sparked off by the jenkins' controversy, see the general synod february group of sessions 1985 report of proceedings, volume 16, no.1 (cio publishing, 1985), pp. 128-163, 171-182. 40 "standing" for pressure groups and the representative plaintiff barry h ough* "it is manifest, that men who are in absolute liberty may ... give authority to one man, to represent them every one": hobbes, leviathan. the common law has shown too great a respect for the individual. pound expressed it this way: "the common law ... is concerned, not with social righteousness, but with individual rights. it tries questions of the highest social import as mere private controversies between john doe and richard roe. and this compels a narrow and one-sided view ... ".1 in public interest litigation, therefore, the law has required that justice be done for the benefit of the individual2 who seeks to vindicate his private legal rights. pound castigated this sanctity of the individual as damaging "for the needs of society".3 indeed, courts are perceived as condoning illegality where a remedy is denied only for want of locus standi in the plaintiff.4 further, such a result undermines legislative policy by frustrating the enforcement of legal rights and interests. and rights without remedies are mere "delusions".5 the reforms introduced by the new r.s.c. ord. 53 have certainly liberalized the standing doctrine.6 the question to be addressed in this article is whether these changes have been sufficiently profound to permit litigation in the public interest by representative individuals or pressure groups who seek the intervention of the court on behalf of others more closely affected and, ultimately, for the benefit of * lecturer in law, university college of wales, aberystwyth. 1. (1905) 5 columbia l. rev. 339, at p. 346. 2. a late example of this approach can be seen in gouriet v. union of post office workers [1978] a.c. 435. for an account of the development of the law of locus standi, see wade a dministrative law 6th ed. (1988), at pp. 688 et seq.. 3. supra n. 1, at p. 344. 4. such a criticism was ventured by professor wade of r. v. customs and excise commissioners, ex p. cook [1970] 1 w.l.r. 450: (1978) 94 l.q.r. 5. 5. per sir k. schiemann, [1990] p.l. 342, at p. 343; see also rudolph von ihering, der kamp ums recht (1872). 6. see, e.g., thediclumofslade lj,inr. v.h.m. treasury,exp. smedley [1985] q.b. 657,atp. 669; also r. v. inland revenue commissioners, ex p. federation of self-employed and small businesses ltd. [1982] a.c. 617 (per lord diplock) and 656 (per lord roskill). 77 the denning law journal the public.7 the possibility of representative litigation is particularly important for many groups of individuals in society who, whether from a lack of resources or other forms of disadvantage, would otherwise not be able to seek a remedy in their own right. these are precisely the individuals who are most likely to be in need of the protection conferred by the rights in issue. pressure groups or public spirited litigants frequently possess the resources and expertise necessary to ensure the vindication of rights or interests enjoyed by others either by promoting suitable "test" cases, or by proceeding in their own name. "test" cases are not always an appropriate solution, however,8 and, if the organisation is then unable to proceed in its own name, the rights or interests of those without the resources to defend them may be prejudiced for want of enforcement. lord diplock averted to the question of representative and pressure group litigation in the fleet st. casuals case,9 in which he concluded: "it would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation ... were prevented by outdated rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped."lo almost ten years after their lordships' decision it is proposed to consider the extent to which pressure groups and other representative litigants have been allowed to challenge a breach of public duty affecting others in a greater measure than themselves. proceedings such as these raise complex questions. quite apart from whether, in public interest litigation, justice is done for the benefit of the public, 11 there remains the question of whether the locus standi rules fall to be applied solely against the representative litigant or whether the court can have regard to the interests of the represented group to fortify the position of the representative. if representation is to be allowed, in what circumstances is it legitimate and who is to be regarded as a competent representative? in recent years, the courts appear to have given a warmer but not unqualified welcome to representative or group proceedings. developments have nevertheless been compromised by a failure to develop principles which will define their proper 7. the controversy surrounding locus standi has become more prominent recently: see, e.g., schiemann, supra n. 5, in which a reconsideration of the purpose served by the rules is urged, and p. cane, [1990] p.l. 307 in which standing for representative groups is advocated as a necessary assistance for not only the "poor and under privileged" but also members of the public whose protector the attorney-general may not take action against central government. 8. see, e.g., wilkeley, (1985) 135 n.l.]. 1123 discussing the strategy of the child poverty action group in r. v. secretary of state for social services, ex p. child poverty action group and the greater london council [1985] the times, 8th august. 9. r. v. inland revenue commissioners, ex p. federation of self-employed and small businesses ltd. (1982j a.c. 617. 10. ibid., at p. 644. ii. this was the rationale of allowing a more liberal standing requirement to operate in the case of the prerogative orders. see, e.g., craig, administrative law 2nd ed. (1989), especially at p. 365, and wade, (1978) 94 l.q.r. 5. 78 "standing" for pressure groups and the representative plaintiff scope. in some cases the issue of principle has been passed over. alternatively, the courts have merely stretched the traditional approach by awarding locus standi to a representative litigant on the ostensible ground that he satisfies the orthodox rules in his own right. no doubt this is a just result but it has caused a perceptible distortion of the locus standi rules. such an approach would have been unnecessary had the courts realized that different questions are raised in this type of case which make it unsuitable for the analysis normally applied in single party proceedings. the orthodox approach: the fleet st. casuals casel2 the fleet st. casuals case illustrates the traditional, if somewhat conservative, approach to representative type litigation. in this case, the house of lords trod the well-beaten path in seeking to measure the sufficiency of the interest of the representative litigant, as it had done in the earlier gouriet case. 13 in fleet st. the applicant for judicial review was an association which represented the views ofthe self-employed person and small businessman, alleging that the inland revenue had abused its powers in undertaking not to pursue certain tax arrears owed by a group of fleet st. workers. their lordships examined whether the federation had a sufficient interest and, in order to answer this, focused upon the interests of its members. the speeches do, however, reveal a considerable difference of opinion as to the role and standard of the sufficiency of interest required. 14 the majority decided that in this context the federation did not have a locus standi to represent its members. the assessment of taxes was a confidential matter between the revenue and the individual taxpayer in which, generally, another taxpayer could not have an interest. therefore, as lord wilberforce observed: "an aggregate of individuals each of whom has no interest cannot of itself have an interest" .15 their lordships kept open the possibility that in exceptional circumstances, an actio popularis could be desirable. most agreed that serious unlawful conduct by the defendant would be capable of affording locus standi for the benefit of an 12. supra n. 9. 13. supra n. 2. 14. it was held by the majority that standing is to be judged in relation to the legal and factual context (see, e.g., the speeches of lords wilberforce [1981] 2 w.l.r. 722, at p. 727, lord scarman at pp. 748-49 and lord roskill at p. 753). lord fraser, however, thought that it would be relevant to consider more narrowly the statute under which the duty alleged to have been breached arises to ask whether the applicant has an express or implied right to bring his application (at p. 742). it is respectfully submitted that such an approach is fraught with difficulty because of the difficulty in identifying legislative intention. a similar test was briefly adopted in the united states: see association of data processing v. camp 397 us iso (1970) but later apparently abandoned: duke power v. carolina environmental study group 438 us 59 (1978). is. [1982] a.c. 617, at p. 633; see alsor. v. secretary of state for the environment, ex p. rose theatre trust co. [1990] i all e.r. 754, schiemann j. 79 the denning law journal applicant who might otherwise lack it.16 the majority held, however, that the applicant must demonstrate a sufficient interest in relation to the merits of the case itself. this is significant because, as will be demonstrated, representative litigants have been awarded locus standi, not by virtue of their relationship with the legal and factual issues, but with their relationship of proximity with a group of others who do have such an interest. this is to adopt a wholly different principle from that enunciated in the fleet st. case. since, however, an association is not competent to advance the interests of its members unless their interest was itself "sufficient"17 the federation was not competent to seek judicial review in these circumstances. the decision is strictly orthodox in its approach: the federation, as the applicant, was treated as the effective unit in the litigation. this is the stance which the courts will normally adopt. yet this orthodox model has had to endure a certain measure of strong-arming to produce acceptable results. in reality a nelsonian eye is often turned to the traditional rules enabling the court to recognise that the real unit in the matter is not the representative plaintiff but those represented who are absent from the court-room. the new technique r. v. social services, ex p. child poverty action group and the greater london councill8 is one of several decisions which suggest the abandonment of the traditional model despite apparent lip-service to it. here the child poverty action group (c.p.a. g.) was awarded locus standi to challenge the administration ofthe supplementary benefit system on behalf of a group of unidentified claimants whose cases were not reviewed within the meaning of statute. woolf j reasoned that the c.p.a.g. was a body "designed" to represent the interests of claimants and that it was a proper challenger. in contrast, the g.l.c. had no cognisable status in this matter: it had attempted to represent the public interest by usurping the role of the anorney-general. an appeal to the court of appeal on the merits was subsequently successfu}19but the question of locus standi was left open. although woolf j ostensibly adopted the orthodox technique by examining the position of the c.p.a. g., the resulting award of locus standi is not convincing as an application of it. the c.p .a.g. was not a welfare claimant; and although a charity 16. ibid., per lord wilberforce at p. 633; lord fraser at p. 647; lord roskill at p. 662. lord scarman also held that the federation lacked locus standi because it could not show a breach of duty by the revenue on the merits (at p. 654). 17.cj.,r. v. chief adjudication officer, expo bland [1985] the times, 6th february (infra) and the rose theatre case, supra n. 13, as illustrations of this principle. 18. [1984] the times, 16th august. 19. r. v. secretary of state for social services, ex p. child poverty action group and the greater london council [1985] the times, 8th august. the same course was also adopted inr. v. secretary of state for social services, expo cpag and orhers [1989] 1alle.r. 1047. as lord roskill observed in the fleer sr. casuals case, "refusal of the application on the merits ... implies that the [standing] question has been answered affirmatively": [1982] a.c. 617, at p. 645. 80 "standing" for pressure groups and the representative plaintiff dedicated to the relief of poverty amongst children and families with children, it could not be said that it had any private interest in the outcome of the proceedings. in essence, it was seeking to assert the interests of all unidentified claimants and the public. woolf j was forced to disguise this by finding that the body was "designed" to assist welfare claimants. this approach was certainly not a recognised one since english law has never permitted a "private attorney-general" to appoint himself responsible for matters of public interest.2o moreover, such a group encountered severe difficulty in the subsequent rose theatre case21 which demonstrates that the concern of a single issue pressure group with one aspect of proper administration may not be sufficient to give it standing to sue. so the proposition that representation was appropriate because of the stated purpose of the c.p.a.g. is not necessarily convincing. the conclusion which must be drawn is that, in essence, the c.p.a.g.'s status was "transferred" to it. the source of this can only have been either the rights and interests of the individuals directly prejudiced by the action in question or the public interest in having the matter settled. on either interpretation, the substance of this decision appears to have repudiated the orthodox standing rules. it is worthwhile considering some ofthe ingredients in the c.p.a. g. case. as in the royal college of nursing case22 (considered infra), the alleged breach of public duty would have amounted to a matter of serious and legitimate public concern. the c.p.a.g. was clearly perceived as a body capable of providing effective advocacy of the legal issues by virtue of its welfare activities and, as a separate matter, it had a relationship of proximity with the group represented.23 the absence of such a relationship of proximity also explains his lordship's decision that the g.l.c. did not have standing to sue in the c.p.a.g. case. whilst the c.p .a.g., active in welfare matters, enjoyed a closer and more immediate concern with the legal issues, the g.l.c. possessed responsibilities of an entirely different and diverse nature.24 since the real concern of each body lay in ensuring the due administration of the benefit system, it is not entirely satisfactory to distinguish them on the grounds that one lacked a sufficient interest in the matter and the other did not, nor by 20. e..g., goun"et v. union of post office workers [1978] a.c. 435; but alsor. v. secretary of state for the environment, ex p. rose theatre trust co. [1990] i all e.r. 754 in which it might also have been observed that the trust was a single issue pressure group "designed" to effect a change in policy regarding the scheduling of the rose theatre as an ancient monument. 21. supra n. 20. 22. [1981] a.c. 800. 23. perhaps it would be more satisfactory to regard the relationship of proximity as existing between those claimants with children and the c.p.a.g. rather than between the latter and all claimants regardless of whether or not they were parents. if the c.p.a.g. had defined its representation accordingly the result would not have differed since a successful challenge would have benefited all relevant claimants. 24. the decision to refuse locus standi to the g,l.c. has been criticised on the grounds inter alia that it had run benefits take up campaigns: see wilkeley, (1985) 135n.l.j. 1123. 81 the denning law journal pointing to their different raisons d'etre.25 arguably, both were acting as "private attorneys-general". the only real distinction between them lay in their different relationships with the claimants, and this is the crucial issue affecting locus standi. the only test which distinguishes them is therefore that based on proximity. proximity of relationship was also treated as governing the standing issue in r. v. chief adjudication officer, ex p. bland.26 here a striking miner, his union, the national union of mineworkers, and the trades union congress each sought judicial review of the chief adjudication officer's advice regarding deductions from supplementary benefits when individuals were taking part in an industrial dispute. one of the n. u .m.'s principal objects was to protect the interests of its members and it had called the strike which resulted in their claiming supplementary benefit. the court held that the n. u.m. had locus standi, by virtue of its relationship with the striking miners. this is of great significance since it clearly demonstrates the new approach in representative type litigation. a "sufficient interest" is not found "in the matter to which the application relates" but in the proximity of relationship which the representative has with the group represented who in tum have a cognisable interest in the substantive issues. applying this same test it can be seen that the t. u. c.'s relationship with bland and the striking miners was, in the court's own words "too remote" to establish locus standi even though one of its objects was the protection of workers in all unions affiliated to it. proceedings outside the application for judicial review section 31 of the supreme court act 1981 applies the sufficiency of interest formula to applications for judicial review. locus standi under the old procedure is not affected by s. 31 and it is likely that it continues to be governed by the more restrictive locus standi requirement enunciated in the gouriet casey this is highly significant because, if representation by non-interested litigants of third party interests was permissible under the goutiet regime, it would be difficult to resist its impact under the new judicial review procedure where the safeguard of the leave requirement operates to prevent abuses of the judicial process.28 the decision of the house of lords in the gouriet case that the plaintiff's locus standi must rest upon his having a legal or equitable right of his own at issue or upon his having suffered "special damage", appeared to signal that pressure group and similar litigation should be exiled from proceedings outside of the application for judicial review. fortunately, some signals, no matter how lucid, are received 25. if the child poverty action group was permitted to represent all unidentified claimants, and not just those with children, it is difficult to distinguish its position from that of the g. l.c. using orthodox principles. essentially both were policing the benefits system. 26. [1985] the times, 6th february. 27. [i978j a.c. 435, although this may subsequently have been reconsidered: liverpool daily post and echo newspapers p.l. c. v. pickering [1990] 1 all e.r. 335, especially per lord donaldson mr at p. 345. 28. sir h. woolf, [1'986] pl 220. 82 "standing" for pressure groups and the representative plaintiff with a blind eye with welcome results. this appears to have been the case following gouriet, for the house of lords subsequently allowed a representative body to advocate the interests of its members and others. in the royal college of nursing v. d.h.s.s.,29 in an action also begun by writ seeking a declaration, the royal college of nursing was permitted to test the legality of a circular issued by the department of health and social security. the circular purported to clarify the ambit of the role of nursing staff in abortion cases by suggesting that, provided an abortion was commenced by a registered medical practitioner, the remainder of the process could be carried out by nurses. if the circular did not comply with the criminal law, nurses risked prosecution. the objection might have been raised that the action was initiated by the r.c.n., not one of the nursing staff placed at risk by the circular. the traditional locus standi rules for declaration30 were that the applicant should show that a private legal right of his own was at issue or that he had suffered special damage or that the threat of prosecution threatened that such damage might be inflicted in the future. the nurses individually fulfilled this requirement. it would have been possible for one of the nurses, perhaps representing all others, to argue the matter in court. more problematic was the position of the royal college which did not itself become involved in the abortion process. its rights were unaffected by the circular and to the extent that it suffered at all, it would certainly have been to a far lesser degree than the nurses. thus it could not have relied on the special damage rules.31 the house of lords, rejecting the r.c.n.'s case on the merits, unfortunately failed to avert expressly to the locus question. the matter seems to have been assumed sub silentio. yet had the r. c.n.'s standing been challenged, it is difficult to accept that those objections would have succeeded. in matters of this kind, the courts have openly expressed concern at the effect of the locus rules. woolf j, for example, has stated: " ... it would be regrettable if a court had to come to the conclusion that in a situation where the need for intervention of the court had been established this intervention was prevented by rules as to standing. "32 this, of course, questions the rationale of the locus standi doctrine, the logic of which is precisely to prevent the courts from intervening notwithstanding any need to do so. nevertheless, in the r.c.n. case, the substantive issues were of overwhelming public concern and it was necessary to clarify the legal status of the circular both for the sake of the nurses and to address public anxiety. it would have been highly 29. [1981] a.c. 800. 30. the traditional locus standi rules for declaratory relief are considered in gouriet v. union of post office workers, supran. 27, and also inbarrsv. bethell [1982] 1 all e.r. 106, atp. 114. forthe "special damage" rules see, e.g., benjamin v. storr (1874) l.r. 10 c.p. 400, at p. 407 per brett j; stoke parish council v. price [1899] 2 ch. 277; stockwellv. southgate corpn. [1936] 2 all e.r. 1343, at pp. 1351-2. 31. an example oflitigation by trade associations is to be found in london association of shipowners and brokers v. london and indiajoint docks committee [1892] 3 ch. 242 in which a trade association lacked locus standi to sue. 32. r. v. attorney general, ex p. imperial chemical industn"es p.l.c. [1985] 1 c.m,l.r. 588, at p. 618. 83 the denning law journal unsatisfactory for the courts to fail to offer guidance as to the legality of the nurse's actions by virtue of the r.c.n.'s possible lack of locus standi. moreover, the r.c.n. was fully cognisant of the issues involved and thus capable of providing effective advocacy of the nurses rights; indeed, the college in so far as it was the corporate advocate of nurses' interests, enjoyed a relationship of proximity with the nurses.33 significantly, therefore, there are unmistakeable parallels with the c.p.a.g. and g.l.c. cases. "constructive" representation: the initiative of the court the courts themselves appear able to convert litigation begun in a single party form into one of "constructive" representation in order to salvage the litigation from locus standi problems. to do so is to abandon the traditional model, but the tradition of allegiance to orthodoxy does not deter such radicalism. in r. v. london borough of lambeth, ex p. sharp,34 for example, a local planning authority proposed to grant itself planning permission for a certain development. the application was required to be published specifying a date by which any objections should be received. the date was omitted from the published notice. the applicant for review, however, had only read the notice and taken action after the expiry of the probable date by which objections ought to have been made. even if the notice had contained a date, the applicant would still have been out of time: he had simply seen it too late to take action. strictly, he had not been prejudiced by the local authority's omission. his concern essentially was in the lawful administration of the planning system. it was held, however, both at first instance and on appeal, that he had locus standi to seek review and the court proceeded to quash the planning permission in question. in the appeal, woolf lj observed: " ... he is making the application not only on his own behalf but, in effect, on behalf of the publ£c. in considering whether or not relief should be granted, the court, in my view, must have very well in mind the fact that regulations such as the one under consideration are designed to give the public generally notice of proposals of this sort. "35 this appears to be an extreme example36 in which the interest of the public and not the individual constitutes the standing to advance the substance of the claim. is there a consistency of approach which unifies ex p. sharp, the c.p.a. g. and the r. c.n. cases? turning firstto the nature of the breach of public duty, it might be argued that sharp's case was less convincing than, for example, the r. c.n. case. 33. the synonymity of interest means, in effect, that it was as if the nurses themselves were before the court. this is essentially the approach adopted in the united states: hum v. washington state apple advertising com. 53 l ed. 2d 383 (1977). 34. (1986) 55 p & c.r. 233. 35. ibid., at p. 240 (italics added). 36. this approach is not an unprecedented one: see the judgment of lord denman c] in ricketts v. bodenham (1836) 4 ad. & e. 433, at p. 441. 84 "standing" for pressure groups and the representative plaintiff the latter involved serious questions affecting the right to life which demands judicial intervention rather more persuasively than, say, the publication rules in planning matters. but it would appear that the gravity of the possible breach of duty is not necessarily determinative in itself: it must be considered alongside other factors. one influential consideration in ex p. sharp may have been that the ultra vires action affected a large number of individuals but no one individual in particular. if the applicant's action failed on locus grounds, it was unlikely any other citizen could succeed. thus it may have been that the implied representation was used as a device to give some embodiment to the otherwise abstract public interest. if this is so, sharp suggests that even where the breach is not of one of the highest or most sacrosanct forms of public duty, but the harm it causes is diffuse, a representative status may possibly be employed as a device for vindicating the public interest.37 even so, the decision must be the high-water mark of the public interest model of judicial review and the consequent reluctance to see review as merely a system for defending the private rights of the applicant. such reasoning can arguably be made to apply in every case in which a litigant would wish to act as a "private attorney-general" with obvious effects for the future survival of the locus standi doctrine. if correct, it would threaten to erode the entire doctrine of standing since any public litigation can be seen, to a greater or lesser extent, to represent the public interest. ex p. sharp is not the only instance in which the courts have allowed the applicant to draw strength from the interests of the public at large. in r. v. pelixstowe justices, ex p. leigh,38 for example, the applicants, a newspaper and a journalist, sought judicial review of a policy of magistrates not to reveal their identities. the journalist had not been present in court during the trial in question but merely wished to comment on the manner in which the trial had been reported in other newspapers. on behalf of the justices, it was objected that the journalist's position was akin to that of a pressure group since he had not been present in court and that he had no cognisable interest in the matter. nevertheless, the court held that the role of the press as guardian and watchdog of the public interest gave the journalist locus standi to seek a declaration but not for a mandamus. the ingredients which may have led to such a result are interesting: as in ther.c.n. and c.p.a.g. cases, the resolution of the substantive issues was manifestly in the public interest and, in this case, the court found that the justices were acting unlawfully. the court was clearly reluctant to find its hands tied by locus objections and so there was an award of standing to a plaintiff whose own position, whilst not perhaps nominal, certainly drew heavily upon his perceived characteristics as a representative of the public interest in open justice. the desire, however, to adhere to a traditional approach defining the unit of litigation as the journalist plaintiff alone, forces the court to 37. contrast, e.g., gaumet v. union of post office workers [1978] a.c. 435 andr. v. secretary of state for the environmem, ex p. rose theatre trust co. [1990] 1 all e.r. 754. 38. [1987] 2 w.l.r. 380. 85 the denning law journal adopt what might ostensibly be regarded as a distortion of locus standi principles39 for it is difficult to distinguish his position from that of, for example, the g.l. c. in the c.p.a. g. case, or, more generally, any public spirited litigant concerned at an abuse of power. 40 in sum, the proof of illegality and the importance of the subject matter seems to permit "constructive representative litigation" by individuals effectively acting as "private attorneys-general". representative litigation is also a possibility acknowledged in diverse strands of authority outside of the above categories. such developments may serve to bestow some legitimacy on the decisions already surveyed since they betray an essential community of approach from which a general principle may be derived. it is proposed to look at representative proceedings and class actions both in english and united states federal law, and also the litigation by a representative of a third party's constitutional rights in the united states. representative proceedings under r.s.c. ord.15 r. 12. historically, the courts have permitted one self-appointed individual to represent a class of individuals. the governing conditions are that all must demonstrate "one common interest in all the objects of the suit". 41 neither the leave of the court nor a representation order are required before this form of proceeding can be employed.42 it has been stated that there must be a "common interest", a "common grievance" and the relief sought must be beneficial to all whom the plaintiff seeks to represent.43 thus a pre-condition to a representative action is that all must share a "unity of interest" in the action. this is reflected in r. s.c. ord. 15 r. 12 which now provides: "where numerous persons have the same interest in any proceedings ... the proceedings may be begun ... by or against anyone of them representing all or as representing all except one or more of them" (emphasis supplied). in such a case, all members of the group represented are bound by the decision in the case.44 representative proceedings have been employed principally in private law but need not be so confined. a significant feature of these proceedings has been that the courts have permitted a self-appointed representative to take proceedings the effect of which may be to bind others as to their legal rights without their consent. 39. it is difficult to distinguish the rose thea~re case, supra n. 36, e.g., and also, perhaps, holmes v. checkland [1987j the times, is april. 40. journalists have also been held to have standing inr. v. reiga~ejj, ex p. a rgus newspapers (1985) 5 cr. app. r. (s) 181 and r. v. arundeljj, ex. p. wes~mins~er press lcd. [1985j i w.l.r. 708. 41. calvert, par~ies ~osui~s in equi~y (1837), p. 42. 42. in an application for judicial review the leave requirement would still operate and this could provide an opportunity to filter out representation which would not properly safeguard the interests of those represented. but there would be no such protection if the proceedings were begun by writ. 43. per lord macnaghten in duke of bedfordv. ellis [1901] a.c. i, at p. 8; see also per sir raymond evershed mr in smi~h v. cardiffcorpora~ion ]1954] i q.b. 210, at p. 221. 44. rules of the supreme court, order is rule 12 (3). 86 "standing" for pressure groups and the representative plaintiff this is so notwithstanding the general prohibition on the litigation of third party rights.45 since this is an acknowleged means of resolving disputes concerning private legal rights, there would seem to be little objection to its use in public law which is not often concerned with the strict legal rights of the parties. the principles governing representation in this context may vindicate parallel developments in public law. representative proceedings, whether brought under r.s.c. ord. 15 r. 12 or informally, as in, for example, the c.p.a.g. case, raise similar questions, and it would not seem desirable to have radically different sets of rules for each type of representative process. proceedings under r.s.c. ord. 15r. 12do, therefore, provide a ready-made framework of rules which could constitute at least the foundation for the evolution of representative style proceedings for judicial review. it is particularly significant that strict observance of the locus standi requirements has not been a feature of representative proceedings under r.s.c. ord. 15 r. 12 in private law, and it seems paradoxical to insist upon strict observance in public law. this may lend some support to the locus standi developments in public law which have already been surveyed. the policy of the courts has usually been to adopt a liberal approach towards the representative action under r.s.c. ord. 15 r. 12.46 this has required some re-interpretation of the requirements of the "unity of interest" principle. the importance of the "unity of interesttt the "unity of interest" theory, requiring the representative plaintiff and the class represented to have the "same interest" in the proceedings, would suggest that any locus standi requirement must be satisfied by each of them without exception. conversely, a departure from the "unity of interest" approach towards a "substantive" approach47 would permit differences of interest and, possibly, an evolution of sui generis standing rules in this context. practice both in england and the united states, has been to dilute the "unity of interest" requirement, yet on this side of the atlantic at least some common interest must be identified before the representation is appropriate. in essence, however, the courts here, as in the united states, have begun to experiment with a 45. one example of which is the doctrine of privity of contract: dunlop pneumatic tyre co. ltd. v. selfridge & co. ltd. [1915] a.c. 847. 46. the modern prindples of the representative action were enunciated by lord eldon in such cases as adair v. new river co. (1805) ii yes. 429 and cockburn v. thompson (1809) 16 yes. 321. in commenting upon these decisions in duke of bedford v. ellis, lord macnaghten observed that "lord eldon took as broad and liberal a view on this subjectas anybody could desire": [1901] a.c. i, at p. 10. this policy was applied by his lordship in the ellis case and has been followed ever since: seejohn v. rees [1969] 2 all e.r. 274; and most recently in irish shipping v. commercial union assurance co. p.l. c. [1989] 3 all e.r. 853 and chrzanowska v. glaxolaboraton'es ltd. [1990] the independent, march 13. 47. here the court acts for the sake of the group represented to redress the grievance inflicted upon them by the defendant. the locus standi of the representative would not be considered to be of primary significance; his status would be nominal. the required adversity is found to exist between the defendant and the class: see chayes, (1976) 89 harv. l. rev. 1318, especially pp. 1353 et seq.. the community of interest theory is also discussed at pp. 1331 et seq.. 87 the denning law journal different conceptual basis for representative proceedings. this is "substantive" in character48 and permits the court to resolve the dispute between those whose rights or interests are affected and the defendant despite different interests inter se or different interests as between themselves and the representative plaintiff. in some cases, the necessary adversarial positions are essentially those of the class represented and of the defendant and the courts have sometimes shown little concern with the ability of the representative to satisfy the normal locus standi rules. the evolution of the "unity of interest" requirement the dilution of the "unity of interest" requirement can be witnessed in a series of decisions. in john v. rees,49 for example, where a representative action was brought by a chairman of an unincorporated association on behalf of all members of the association, a unity of interest was held to exist even though some members were actively hostile to his claims. megarry j stated: "some may support one faction, some another. but if the named parties to the action together put forward every view that is seriously advanced, i cannot see that any real harm is done to a person whose part in the action is merely that he is represented by the plaintiff, even if the plaintiff is supporting a different cause, provided that there is a defendant who does stand for the cause espoused by the person being represented: actions are decided by reference to justice according to law, and not by counting heads. the remedy for someone who is not consoled by this thought is ... for him to apply to be joined as a defendant."5o the idea of a "common interest" was further extended inm. michaels (furriers) ltd. v. askew.51 here an injunction was granted by the court of appeal against named defendants representing themselves and all other members of an unincorporated pressure group to restrain the picketing of the plaintiffs premises. members of the pressure group, neither named nor before the court, some of whom may not even have taken part in the action, were made subject to the injunction. yet some of them might have raised objections to the manner of the picketing which might have allowed them separate defences and therefore precluded their having a common interest in the proceedings. nevertheless, the court held that the community of interest lay in the common objectives which all members ofthe group shared in campaigning against the fur trade.52john v. rees and m. michaels (furriers) ltd. v. askew suggest that the primary consideration is essentially the substantive one: what are the legal merits of the case as a whole? 48. ibid .. 49. [1969] 2 all e.r. 274. 50. ibid., at pp. 283-4. 51. (1983) 127 s.]. 597. 52. protection for the absentee class members was found to exist in the rule which prevents enforcement of the judgment against them without the leave of the court: cf. nirex lid. v. barlon [1986] the times, oct. 14th. these decisions are discussed by k. uff, (1987) 6 civ. j. q. is. 88 "standing" for pressure groups and the representative plaintiff this subordinates the question of the legal identity of the individual asserting those rights leaving the court free to address the merits. in so far as there is an adherence to the "unity of interest" requirement, it seems capable of being satisfied by having regard almost to the lowest common denominator in the action: the membership by all individuals of the association in question. 53 that this may have implications for locus standi rules can be seen in the house of lords' decision in duke of bedford v. e//is54 which is the leading decision on representative proceedings. the judgment of lord macnaghten has come to be regarded as classical55 and definitive of the courts' jurisdiction. in brief, the facts were that six named plaintiffs sought to represent a class of other market traders in an action against the owner of the market alleging that the latter had violated certain rights enjoyed by the traders under statute. the difficulty was that the statement of claim alleged that the duke had breached the act in relation to certain classes of trader and types of pitch. none of the named plaintiffs in their personal capacity, however, asserted a cause of action in some of the matters raised, although clearly some class members would have such rights at issue. the duke applied to have the claim struck out. by a majority, the house of lords held that the plaintiffs could maintain their claims notwithstanding their lack of a personal stake in some of the matters raised. lord macnaghten's reasoning is strongly biased towards a substantive approach which focuses upon the group's grievances advocated by the claimants as its representatives rather than on technical locus qualifications of the representative plaintiffs themselves. he observed: "if the persons named as plaintiffs are members of a class having a common interest, and if the alleged rights of the class are being denied or ignored, it does not matter in the least that the nominal plaintiffs may have been wronged or inconvenienced in their individual capacity. they are none the better for that and none the worse. they would be competent representatives if they had never been near the duke. "56 lord macnaghten clearly envisaged that the class representatives should be representatives of a class; a complete homogeneity of personal interest in the outcome is clearly not required. he observed that it is the rights of the class which are denied or ignored; the class representatives need not share those rights: they are not disqualified even if they are not even inconvenienced by the unlawful actions of the defendant. he made the point unequivocally by stating that they have a purely "nominal" status. clearly it is the substantive claims of the class which prevail over the qualifications of the individuals who assert those claims. 53. see also the decision of hirst j in pan a t/anric a ssurance co. v.pine top insurance co. ltd. [1988] 2 lloyd rep. 505 in which his lordship followed megarry 1's decision in john in legally similar circumstances. 54. [1901] a.c. 1. 55. see,per megarry j, injohnv. rees,supra n. 51: also smith v. cardlffcorpn. [1954] i q.b. 210, atp. 219, per sir raymond eve!shed mr. 56. [1901] a.c. i, at p. 7. 89 the denning law journal the u.s. experience: class actions and the "standing doctrine"57 the us courts ostensibly adhere to orthodox standing rules where the challenge is brought by an individual or association seeking to act in a representative capacity. the requirements will normally be satisfied only where the representative alleges some injury to himself. 58 an association may, however, bring suit on behalf of its members provided that they will suffer the necessary cognisable injury. 59 nevertheless, the us courts have appeared to be receptive to the public policy considerations weighing upon the standing doctrine. chayes has argued60 that whilst early decisions attempted to assimilate class actions to ordinary litigation by treating the representative plaintiff as the focus of the standing issue, more recent decisions treat the class as the effective unit in the litigation. the court shifts its attention to the resolution of the legal issues in dispute between the class and class opponent. hence, creative techniques have been employed to fashion exceptional rules which ultimately avoid the general standing principles. in parentheses, it is worthwhile noting one such technique which permits the rigours of the standing doctrine to be mitigated, i.e. , the use of an amicus curiae. an individual or pressure group, such as an environmental or civillibenies group, may apply for leave to intervene as an amicus even though it is not a party to the suit. intervention is strictly in the discretion of the court61 and the consent of the parties may be required before it is permitted. in practice, however, the courts will readily favour a motion for intervention and the briefs of an amicus can be as influential as those of the panies. leave to file a brief, however, only permits intervention in litigation already commenced by others. thus the initiative of bringing suit does not lie with the amicus. where such a challenge has already been undertaken, it is a particularly effective way for a pressure group to influence the decision of the court on the merits without necessarily having standing to appear as a party. other means of avoiding standing problems seem to be permitted in federal class actions in the united states. these are of great interest partly because, like the english representative proceedings, they are rooted in chancery practice, upon which lord eldon exercised such a powerful influence: each shares a common lineage. this makes a study of the u.s. jurisprudence of particular relevance. the issues are governed by rule 23 of the federal rules of civil procedure which, in conformity with its english heritage, adopts the unity of interest theory. as with the english experience, a narrow interpretation of the theory has been found to be too restrictive, and the courts have responded by rejecting the idea that the representative parties and class members should 57. the person seeking relief must generally show that he has suffered "injury in fact": association of data processing v. camp 25 led. 2d 150 (1970) which can be defined as some actual or threatened injury; see, generally, hough, [1986] denning l. j. 85. 58. havens realty corporation v. coleman 71 led. 2d 214 (1982). 59. warth v. seldin 45 led. 2d 343 (1975). 60. (1976) 89 harv. l. rev. 1318, at p. 1464. 61. re ohlhauser's estate (sd) 101 nw 2d 827. 90 http://www.ingentaconnect.com/content/external-references?article=0269-1922(1986)0l.85[aid=7383023] http://www.ingentaconnect.com/content/external-references?article=0269-1922(1986)0l.85[aid=7383023] http://www.ingentaconnect.com/content/external-references?article=0269-1922(1986)0l.85[aid=7383023] "standing" for pressure groups and the representative plaintiff invariably be required to demonstrate a single and homogeneous interest in the suit. as in duke ofbedfordv. ellis a recasting of the unity of interest or, in the u.s., the "typicality" requirement, opens the courthouse door to representation by non-interested parties. in u.s. parole commissioner v. geraghty,62 for example, a prisoner, who had been denied parole by virtue of release guide-lines, challenged the guide-lines on behalf of himself and other prisoners. after certification of the suit but before the hearing of the matter by the court of appeals he was released and thus lost his personal interest in the suit. the supreme court rejected the submission that his action was mooted. a "live" dispute continued between the defendant and class members. in an interesting judgment the supreme court considered the role of the "standing" doctrine: "the personal stake requirement is to assure that the case is in a form capable of judicial resolution. the imperative of a dispute capable of resolution are sharply presented issues in a concrete factual setting and self-interested parties vigorously advocating opposing positions. this can exist with respect to class certification notwithstanding the fact that the named plaintiffs claim on the merits has expired. vigorous advocacy can be assured through means other than the traditional requirement of a personal stake in the outcome."63 blackmun j further conceded that whilst a class representative has the "right" to proceed if he obtains the certificate of the court, that right "is more analogous to the private attorney general concept than to the type of interest traditionally thought to satisfy the [standing] requirement."64 further, in sosna v. iowa65 the court stated that upon certification "the class of unnamed persons described in the certification acquired a legal status separate from the interest asserted by the appellant. "66 these decisions clearly reflect a move away from the traditional mould of single party litigation in which locus standi rules fall to be applied against the named defendant. re-definition of the unit oflitigation has taken place so as to focus upon the class with whom there remains a dispute with the defendant. although the reliance placed upon vigorous advocacy as a substitute requirement for traditional "standing" may be questioned,67 the above decisions suggest that the traditional private law model of dispute settlement can be made flexible. a personal stake, as the orthodox locus requirement, can be abandoned as the governing threshold issue if other factors enable the court to intervene; thus 62.63 led. 2d 479 (1980). 63. ibid., at p. 495 (emphasis added). 64. ibid .. 65.419 u.s. 393 (1975). 66. ibid., at p. 399. 67. it requires an analysis of what the representative might be in a position to argue and what might have been advanced by those represented although they are not, of course, before the court. because the problem here is one of hypothesis, it is arguable that the court is in essence relying upon the proximity of relationship between the class advocate and the class which is the real nature of the locus test in representative type litigation. 91 the denning law journal traditional locus standi qualifications are not by itself determinative of competence to sue. safeguards in the united states, rules of court confer protection against any abuse of this form of proceeding. as soon as practicable68 after the commencement of proceedings, the putative class representative must obtain the leave, or the certificate, of the court that the proceedings are properly brought in class form. one of the principal objects of this is to ensure, inter alia, that the representative parties "fairly represent the class"69so as to avoid possible prejudice to their rights and interests. the state of the u.s. class action the euphoria which initially surrounded the expanded use of the class action in the united states has undoubtedly subsided; indeed in more recent years, in response to a more restrictive judicial stance towards it,70its use appears to have declined.71 its utility has been compromised by a number of converging factors embracing, for example, difficulties in identifying common questions which in turn renders the construction of a viable class a problematic issue.72on this side of the atlantic, however, and especially in the context of mass tort litigation, it seems that confidence in the evolution of a class action remains high.73 significantly, perhaps, the creative use of the standing rules in public interest cases does not appear to have been the focus of the criticism levelled against the class action.74 in this regard the experiment has, perhaps, proved to be more satisfactory. it demonstrates, perhaps, that traditional locus standi rules can be remodelled without significant harm for the judicial process and this may encourage experimentation outside the class action strictu sensu. the lesson may be that, if other forms of representative style proceedings are to be permitted on this side of the atlantic, the group must be capable of definition with reasonable 68. rule 23 (c) (i). 69. rule 23 (a) (4). inhansberry v, lee 311 u.s. 32 (1940) this was held to be satisfied ifthe interests of the absentee dass members were assured. it may introduce some discretion into the standing question. 70. see chayes, (1982) hat'/). l. rev. i, at p. 28. 71. see h. patrick glenn (1986) 6 o.].l.s. 252. he indicates that in 1976 over 3000 federal dass actions were filed but that this fell to a mere 987 in 1984. n.ibid .. 73. see, e.g., irish shipping v. commercial union assurance co. p.l.c. [1989] 3 all e.r. 853 expanding the cl!-tegoriesof relief available in representative proceedings; and chrzanowska v. glaxo laboratories ltd. [1990]the times, march 13th in which the court recognised its power to order that costs be met by members of the group represented who were likely to benefit from the proceedings. r. tur advocates reform in the field of consumer protection so as to enable a more effective vindication of consumers' rights: (1982) 2 legal studies 135. 74. see h. patrick glenn, supra n. 70. chayes appears to argue, however, that the approach to standing in dass actions is not strictly consistent with orthodox rules but that it should nevertheless be welcomed: 96 hat'/). l. rev. i, at p. 44. 92 "standing" for pressure groups and the representative plaintiff certainty. an additional reason for this would be the difficulty a representative plaintiff would encounter in establishing proximity of relationship with the members of a loosely defined group. constitutional jus tertii in the united states another line of united states authority,75 permitting the litigation by "strangers" of constitutional rights belonging to third parties, deserves to be noticed for its reliance on proximity as a technique for expanding cognisable forms of public interest litigation. whilst it is not a true example of lowering the standing threshold since the litigant must satisfy normal standing rules, it does appear to accept that in limited and controlled circumstances litigation by a stranger of rights belonging to others may present a dispute capable of resolution. singleton v. wulff6 provides an early example of this type of case. here, a state anti-abortion statute was successfully challenged by licensed physicians on the ground that it violated the constitutional rights of their patients. the lifting of the prohibition on litigation by third parties was held to be permissible provided that the plaintiffs were "nearly as effective a proponent of the right" as the rightholder.77 a necessary if not sufficient condition for this would be the proximate relationship between the plaintiff and the right-holders.78 it would also be necessary to demonstrate that those represented suffered some impediment to the assertion of their own legal rights.79 a potential desire for privacy might, for example, dissuade individuals from taking proceedings in their own name thus permitting by default the violation of the rights otherwise guaranteed by the constitution.80 since the women and physicians enjoyed a close relationship, it was held that there would be no loss of effective advocacy if the case were litigated by the physicians. subsequent developments have tended to expand this exceptional line of authority.81 arguably, the postulated difficulties facing right-holders in enforcing their own 75. this topic is further discussed by sedler, "standing to assert constitutional jus terrii in the supreme court", 71 yale l.j. 599; also "standing to assert constitutional jus tertii", 88 harv. l. rev. 423. 76.49 led. 2d 826 (1976). 77. ibid., at pp. 833-4, citing griswold v. connecticut 14 led. 2d 510, in which a licensed physician was allowed to assert the privacy rights of married patients to receive contraceptive advice. the court here emphasised the "confidential" nature ofthe relationship between the physicians and the right-holders and held that if the physicians were unable to sue on their behalf their rights may well be diluted because of their desire to avoid the publicity of litigation. 78. ibid., at pp. 834-5. 79. ibid., at p. 834. 80. ibid., at p. 835. another relevant issue here was seen to be the imminent mootness of the litigation. her pregnancy would be terminated either by natural or artificial means whereupon she would prima facie lose her standing to pursue the matter. 81. see, e.g., carey v. population services 97 s. ct. 2010 (1977) and virginia v. american booksellers association 98 led. 2d 782 (1988). 93 the denning law journal rights can all be overcome.82 the real foundation of this line of authority therefore rests upon the first ground only: that the nature of the relationship permits representation by a non-interested party who could otherwise not be heard on the issue. this is seen as generating "vigorous advocacy" by the representative of rights of the group thereby avoiding possible prejudice to those individuals. proximity of relationship is thus the governing consideration. although these rules operate in the context of constitutional guarantees, this line of authority acknowledges that the traditional limits on third party litigation in the public interest are not inherent and that they can be changed. the radical shift towards a public law model oflitigation through re-fashioned locus standi rules has not produced unacceptable results for the adversarial system in the united states even though the courts have experimented rather more boldly than their english counterparts. a unity of approach common themes permeate all the above cases, whether decided under english or united states federal law, demonstrating that representation is legitimate according to the nature of the relationship between the representative plaintiff and the group represented. in the english representative action, the rule is that a 'unity of interest' must bind the representative plaintiff and class members alike. three affiliated conditions lie within the penumbra of the governing principle: the representative plaintiff and those represented must share a common interest in the proceedings, they should share a common grievance, and the relief sought should be beneficial to all. 83 although the precise ambit of these· rules remains blurred, they are considered to embrace the additional requirement that the plaintiff must "fairly represent" the class.84 this essentially incorporates a rule requiring effective advocacy and forges an obvious link with jurisprudence in the united states. the overall effect is to relate legitimate representation to a synonymity, or proximity, of relationship between representative and group. this can be traced through all the decisions in which representation has been permitted. thus locus standi for representatives appears to extend beyond cases in which the representative plaintiff demonstrates a "sufficient interest" of his own in the matter in issue to cases in which he enjoys a relationship of proximity with others who can demonstrate such a nexus. whilst duke of bedford v. ellis85 represents one of the most considered attempts at exploring the limits of permissible representation in english law, it is unlikely 82. privacy objections carry little weight because it is open for the litigation to be conducted using a pseudonym: per powell j in singleton v. wulff 49 l ed. 2d 826 (1976), at p. 834 n. 6. an example is provided by roe v. wade 35 led. 2d 147 (1973). proceedings may, however, be conducted in open court. 83. duke of bedford v. ellis [1901] a.c. 1; smith v. cardiff corpn. [1954] 1 q.b. 210; pan atlantic assurance co. ltd. v. pine top insurance co. ltd. [1988] 2 lloyd's l.r. 505. 84. taff vale rly. co. v. amalgamated society of railway servants [1901] a.c. 426, at p. 438. 85. [1901] a.c. 1. 94 "standing" for pressure groups and the representative plaintiff that the idea of proximity, will reach maturity as an identical twin of lord managhten's "unity of interest" test. whilst the modern approach would not deny that, for example, the relief sought should not be detrimental to the interests of any involved, the courts do not seem to insist upon any requirement that the relief should actually benefit all. the representative party, normally lacks a personal stake in the outcome of the proceedings and his personal interests would therefore scarcely be advanced at all. nevertheless, one similarity may be that the "proximity" and "unity of interest" tests each require that the representative should be capable of advancing all those matters which absentee group members might have advocated had they been before the court.86 thus proximity, may be closely related to, but not synonymous with, the "unity of interest" requirement in representative proceedings. examples of sufficiently proximate relationships show that they may derive either from an experience shared by both the representative and the group represented,87 or from a close association with the group represented;88 but these categories should not be regarded as closed. however, the english courts have attempted to camouflage these developments behind the ostensible application of the "sufficient interest" formula and to mis-employ its apparent elasticity to hold that the representative litigants have "a sufficient interest" in their own right. this is to stretch the orthodox rules almost to breaking point. it would be desirable to recognise that different principles are in fact being applied in these cases; and the failure to articulate these principles has generated confusions. ex p. sharp, for example, creates particular difficulties. the litigant had no greater interest than the public at large and essentially sought to act as a "private attorney-general" . the award of standing in that case must be seen as controversial. moreover, the technique employed to achieve this the remoulding the litigation from a single party model into a quasi-representative oneis a dangerous one if only because it is a course which could be followed in most public interest litigation with a highly corrosive effect for the doctrine of locus standi. it is difficult to see how, if standing is to survive at all, such an approach can be legitimate.89 86. in the united states vigorous advocacy may be a critical factor: geraghty v. u.s. parole commissioner 63 led. 2d 479. in english law, megarry j injohn v. rees, supra n. 49, stressed that the class representatives should be able to put forward every view that could seriously be advanced by the class members themselves if they were before the court (although there may be problems with such an approach: supra n. 67. note also the "fair representation" requirement (text to n. 84). 87. e.g., roe v. wade 35 led. 2d 147(1973) in which the prohibition on seeking abortion imposed by state laws had been encountered by members of the group and the representative plaintiff: see also ex p. bland, supra n. 17, and other decisions surveyed. 88. e.g., the shared trading experiences vis iivis the duke in covent garden: duke of bedford v. ellis [1901] a.c. 1. 89. subject to the exceptions formulated in the fleet sr. casuals case which will permit standing to be awarded to a non-interested litigant in exceptional circumstances: supra n. 16. 95 the denning law journal conclusion representative and pressure group litigation is likely to become increasingly prevalent as the expense of litigation puts access to formal justice beyond the means of private individuals. the organisation and combining together of individuals to protect their interests is often essential since the individual alone is in an unequal match for public authorities. this follows afortiori in the case of the less affluent members of society. it is a process which should be nurtured since these private groups are likely to be more effective guardians of the public interest in enforcing the duties constraining public bodies than the archaic office of the attorney-general90 who will not, it seems, take action against central government. litigation by these groups advances public policy by giving effect to the legislative purpose in conferring rights in the first place. in representative cases, the representative seems competent to proceed provided that he enjoys a proximate relationship with others who would have locus standi if they took proceedings in their own name. this is not a large advance in legal principle but in so far as it opens the court-house door to pressure groups and other bona fide representative litigants, it is surely much to be welcomed. the only matter for regret is that the courts have planted this seedling clandestinely in the tangled undergrowth ofthe orthodox standing rules. it is time to acknowledge it and to allow it to flourish amidst the other fruits of the common law. 90. see hough, (l988) 8 legal studies 189. 96 remedies, redress and "calling to account": some myths about the parliamentary commissioner for administra tion michael buckley * introduction one of the smaller institutional oddities of the united kingdom is that while ombudsmen in the private sector officially bear that title, the same is not true of those in the public sector. the title of a public sector ombudsman is almost always some variation on "commissioner" whether or not there is a corresponding commission. northern ireland is different in having the parliamentary (or assembly) ombudsman for northern ireland (though that office too began life under the designation of "northern ireland parliamentary commissioner for administration"). there is also the prisons ombudsman. however,just to add to the confusion of nomenclature, he is not accepted by the british and irish ombudsman association as a true ombudsman, because he is appointed, and may be dismissed, by the home secretary, who is responsible for the prison service which he monitors; and he is therefore regarded by the association as insufficiently independent to satisfy its criteria for full membership. a much more substantial difference is that most ombudsmen whose jurisdiction includes the private sector make determinations or awards, and these are in many cases (though far from all) legally binding. thus section 146 of the pension schemes act 1993 says that the pensions ombudsmanl may investigate and determine any complaint or any dispute of fact or law arising in relation to an occupational or personal pension scheme; and section 151(3) provides that the determination is final and binding on both the complainant and the trustees or managers of the pension scheme, subject to appeal to the high court or court of • the parliamentary commissioner for administration. 1 more exactly, the "commissioner to be known as the pensions ombudsman" (section 145(1)): the draftsman apparently could not quite bring himself to abandon the hallowed word. 29 the denning law journal session on a point oflaw. by contrast, ombudsmen whose jurisdiction is confined to the public sector have in general no power to make binding awards.2 this is in accordance with the normal internation'ai pattern. dr marten oosting, the national ombudsman of the netherlands and president of the international ombudsman institute, says: "almost universally, the ombudsman does not have the power to take legally binding decisions." in the same article, oosting goes on to say: "generally speaking, therefore, the ombudsman cannot formally compel the authorities to take the action he recommends. it is therefore of paramount importance that the institution of the ombudsman, and the person holding that office, generate so much respect and authority that they nevertheless can count on their conclusions being accepted by the authorities to whom they are addressed. this is ... one of the essential elements of ombudsmanship. "3 the purpose of this paper is to suggest that the parliamentary commissioner for administration [p.c.a.] as originally conceived was expected, indeed intended, to lack that "essential element," which would be supplied by proceedings in parliament; and to explore some of the ways in which this fact has influenced the development of the ombudsman institution in the public sector in great britain. a parliamentary commissioner, not an ombudsman it is well known that those who devised the institution of the p.c.a. did not wish to appear to be supplanting the member of parliament in his or her traditional role of securing redress of grievances on behalf of the citizen. the white paper published in 1965, said: 2 again, northern ireland is an exception: awards by the northern ireland commissioner for complaints may be enforced through the courts. 3 "essential elements of ombudsman ship" in the omhudman concept linda c. reif, (ed.) (1995, international ombudsman institute). 30 remedies, redress & "calling to account" "in britain, parliament is the place for ventilating the grievances of the citizen ...it is one of the functions of the elected member of parliament to try to secure that his constituents do not suffer injustice at the hands of the government. .. members are continually taking up constituents' complaints in correspondence with ministers, and bringing citizens' grievances, great or small, to parliament, where ministers individually and her majesty's government collectively are accountable. we do not want to create any new institution which would erode the functions of members of parliament in this respect, nor to replace remedies which the british constitution already provides. our proposal is to develop those remedies still further. we shall give members of parliament a better instrument which they can use to protect the citizen, namely, the services of a parliamentary commissioner for administration."4 during the passage of the parliamentary commissioner act 1967, ministers consistently denied that what they were creating was an ombudsman on scandinavian lines. the following extracts from the speech of mr. richard crossman during second reading are typical: "in asking the house to give the bill a second reading, i want to start by repudiating a notion which has got about, that in this bill we are borrowing from other colmtries and trying to force into our british constitutional mould the notion of the ombudsman which has been the pride of sweden for 150 years.,,5 "[w]e have decided unequivocally that tile parliamentary commissioner must remain permanently a servant of the house.,,6 crossman's speech placed much emphasis on the new commissioner as "an extremely sharp and piercing instrument of investigation" in the hands of the backbench member. he would establish the facts and report them to the 4 the parliamentary commissioner for administration (cmnd.2767, h.m.s.o., 1965) at para.4. s 734 h.c. deb.eol.51 (18th.october, 1966). 6 ibid col. 49. 31 the denning law journal member.7 the notes on clauses took the same line. "the institution proposed for this country [the p.c.a.] ...has been designed as an instrument in the hands of members of parliament for establishing with greater penetration the facts about administrative actions and their results.,,8 so the commissioner would establish the facts. but then what? the 1967 act contains much about investigations and reports; but its only reference to remedies or redress is in section 10(3), which empowers the commissioner, ifhe considers that an injustice consequent on maladminstration has not been, or will not be, remedied to lay a special report on the case before each house of parliament. remedies the thinking on the matter of remedies of those who created the 1967 act seems to have shifted during its passage. if it was essential that the new commissioner should not encroach on the historic right and duty of parliament, and the constituency member in particular, to secure redress of grievances, it was logical to confine his powers to investigating and reporting and to minimise his role in securing redress. the labour party manifesto for the 1964 general election did not even mention such a role. it proposed only to set up a "new office of parliamentary commissioner with the right to investigate the grievance of the citizen and report to a select committee of the house." the white paper went rather further, but still assigned a largely passive role in the matter to the commissioner: "ifhe finds that there is justifiable cause for complaint and the department responds to his invitation to put it right, he will inform the member ... if the department does not act to the commissioner's satisfaction, it will be open to him to report his conclusions to 7 ibid. col. 60. privately, as his diaries show, crossman was sceptical, even contemptuous, of the effectiveness of the powers contained in the parliamentary commissioner bill, apart from the powers of investigation. see the entries for 18th.october, 1966 and 24th.january, 1967. 8 notes on clauses, vii.il, p.3. 32 remedies, redress & "calung to account" parliament ad hoc. ,,9 if anything, the notes on clauses are a retreat from the white paper. they criticise the rival proposaljo of the conservative party for an administration commission on the grounds that: "it attempts to take the task of investigating and correcting administration away from the sphere of responsibility of parliament and ministers. members might act as a channel to the administration commission, but after that they would have, apparently, no further part to play in the matter."11 " ... in the government's plan .. while the commissioner may only investigate administration, responsibility for any action beyond investigation is left with parliament and with ministers."12 "the commissioner's function will be purely to investigate and to report to parliament. the further processes will be for parliament. ..in practice the process might well be pressure in suitable cases from parliament on a department to improve the redress offered by them, and even to make some compensatory payment; and the department might find it necessary to satisfy parliament that the amount of any proposed payment was sufficient. ,,13 essentially, then, redress was seen as a matter for parliament, not the commissioner; and the commissioner's main weapon would be a threat of parliamentary action. 9 supra. n.4 at para. 1i. 10 in a pamphlet entitled let right be done, prepared by the inns of court conservative and unionist society, and published in january, 1966. 11 notes on clauses, vou, para.117. 12 ibid. the discussion is directed to the distinction (or lack of it) between policy and administration; but the comment is still revealing. 13 ibid. para. 122. 33 the denning law jour1'jal "by making [a report under what became section 10(3) of the 1967 act] or threatening to do so, the commissioner may, through parliament, exert pressure on a department to alter the action that it has taken ...the subsequent action will not be for the commissioner; it will be for parliament, using whatever machinery for example, a select committee of the house of commons is devised by parliament for the purpose."14 however, during the later stages of the passage of the bill through the commons ministers were assigning a significantly more active role to the commissioner. on 15th. november, 1966, during committee stage, mr. roots moved an amendment empowering the p,c.a. to state in any report "what remedy he considers appropriate to right tlle injustice to the complainant, including the payment of compensation."15 one member of the committee, mr. coe, objected to this: the p.c.a. should be "the person who finds out"and not be given "what would in effect be virtually executive powers." he added: "once one started saying 'this is how this case should be satisfied' would not this make the commissioner's whole position difficult?,,16 on the face of things, that was fully in accordance with the impression of the commissioner's powers which the government had fostered. however, mr. macdermot (then financial secretary to the treasury, and responsible for piloting the bill through committee) said that the amendment was unnecessary "[w]e do not feel that this adds anything of substance to the bill."17 (even then, he did not go very far: "we do not want, and do not intend, that the commissioner hin1self 14 notes on clauses, vo\.il, p.64. 15 standing committee debates, standing committee b, official report, co\. 302. 16 ibid. co1.303. 17 ibid.co1.304. 34 remedies, redress & "calling to account" should be called on to assess the compensation, the quantum of the amount to be paid."j8 although he might "if we take an extreme case" say if he thought the proposed compensation was far too small, so that the injustice had not been remedied. "[i]t would change the whole character of the commissioner if we were to set him up as a tribunal to assess compensation; and neither do we want to confer on him the burden of deciding what shall be done in detail") in advancing this argument, mr. macdermot chiefly relied on the provisions of clause 10(2) (now section 10(3» of the bill. "[t]here is nothing in the bill to prevent [the p.c.a.'s indicating in his report the remedy he thinks is called for] and, by implication, he is expected to do it when he thinks it is proper. this is the weight which i am attaching to the provision in [section 10(3)] because that shows that he must direct his mind to the adequacy of the remedy which either has been decided or is proposed. since he has to direct his mind to it, it is obviously proper that he should be able to comment upon it in his report. indeed, we have gone further than that in laying the duty upon him, if he thinks that the remedy is inadequate, to make a special report."19 however, one is bound to wonder whether the clause was really appropriate to this revised attitude. it was one of the original provisions of the bill, and reflected the initial intention of those who prepared it, that redress was a matter for parliament. mr.macdermot, an accurate lawyer, cannot really have directed his mind to the clause, since he was plainly mistaken in suggesting that the subsection imposes a duty on the commissioner to report.20 the text did not 18 ibid. co1.305. 19 ibid. co1.308. 20 with whatever justification, or lack of it, crossman believed that macdermot had been disingenuously furthering what crossman saw as the treasury's aim of stripping the commissioner of any effective power. see the diary entries for 24th.january, and 15th.february, 35 the denning law journal change during the passage of the bill. it states that the commissioner may lay a special report before parliament !f he sees .fit [emphasis added]. obviously it confers a power, not a duty. (however, in fairness, even if the route was wrong, the result was probably right, since the existence of a power carries the duty to consider using it.) the select committee it is not clear what led to the change of emphasis; but it seems likely that a significant cause was a growing realisation that unless the parliamentary commissioner had considerably stronger powers, de facto if not de jure, an impossible burden would be laid upon parliament. (the process of adjustment to reality was perhaps accelerated by the appointment after second reading of the bill in the commons of sir edmund compton, then comptroller and auditor general, as p.c.a. designate.) the original conception had been that if the member who referred the complaint to the commissioner could not secure redress for the complainant it would become a matter for the house of commons as a whole, acting through a select committee. the government was scrupulous in not appearing to wish to prejudge a decision that was for the house of commons alone to take; but the passages cited above21 give a clear enough indication of its thinking, as does this one from the white paper: "it will be for parliament to decide what arrangements to make to receive and act upon reports from the commissioner...it may well be found convenient to establish a select committee to take these reports in the first instance. this committee would have the usual powers of a select committee to summon witnesses (including ministers) and to take evidence and report to parliament. "22 indeed, the labour party's original proposals in their manifesto, and a speech by mr. harold wilson at stowmarket on 3rd. july, 1964, had emphasised the roles of the new commissioner and the select committee and made little of the role of the individual member. comparisons were drawn between the p.c.a. and 1967. 21 supra. 0.11-14 & text. 22 supra. n.4 at para. 12. 36 remedies, redress & "calling to account" his select committee on the one hand and the comptroller and auditor general and the public accounts committee on the other. in his speech, mr. wilson (who had been chairman of the public accounts committee from 1959 to 1963) likened the commissioner to the comptroller and auditor general: "just as the reports of the comptroller and auditor general and the public accounts committee are capable both of highlighting individual cases of waste, and of commenting on weaknesses in the system of expenditure control, so the proposed new commissioner and the related select committee would have the same opportunities to highlight individual cases of injustice as well as general defects in the system."23 the notes on clauses took a similar line: "the institution proposed for this country ...has been designed as an instrument in the hands of members of parliament for establishing with greater penetration the facts about administrative actions and their results when someone claims to have suffered injustice thereby. this design owes every bit as much to our own office of comptroller and auditor general and to british parliamentary practice as to other countries offices of ombudsmen. ,,24 similarly, mr.crossman had talked of "a parliamentary commissioner modelled on the comptroller and auditor general,"25 and mr. macdermot had said: "our proposals ...are based on long experience ...ofthe officer of parliament, the comptroller and auditor general. the precedent of that office has been followed very closely in framing these proposals. ,,26 23 quoted in notes on clauses, vou, para. 103. 24 ibid, vo1.ii, p.3. 25734 h.c. deb. col.46 (18th.october, 1966). 26 ibid. col 164. 37 the denning law journal a moment's reflection would have shown that these analogies were seriously misleading. neither the comptroller and auditor general nor the public accounts committee look at the grievances of individual citizens; their investigations are in no way dependent on the making of complaints by individual citizens, or on referrals of cases by individual members; they have no function of considering redress for individual grievances; and the number of cases examined in a year by the public accounts committee is small. contrariwise, the p.c.a. cannot investigate administrative systems, as mr. wilson had suggested, except as part of the investigation of an individual complaint: he cannot draw up, as the comptroller and auditor general can, a programme of systems' audit. one of the most striking things to the eye of a modem reader is the complete absence in the debates on the parliamentary commissioner bill of any estimate of workload. however, it is unlikely to have been lower than the number of complaints actually received from members: 816 in the first nine months of 196727 and 1,120 in 1968.28 indeed, in a press interview in april, 1967 sir edmund compton said that he expected to receive 6,000 to 7,000 complaints a year.29 if only five per cent of the actual number of cases received were eventually considered by the select committee, the committee would have had to hold hearings on 50 or more cases a year; and this, let alone the far higher number implied by sir edmund compton's figure, would have been quite impracticable. it is therefore not surprising that statements by government spokesmen progressively envisaged a larger role for the commissioner and a smaller one for the select committee. thus by report stage mr. macdermot was ready to go further than before in implying that the p.c.a. would discuss redress with departments: "[t]here would be the special report procedure under [section i 0(3)] by which when the commissioner considered that there was an unresolved injustice, that he had reached deadlock with the department and that the department was not taking sufficient action ... he would report to parliament and that report would be 271967 annual report, h.c. 134 (1967-68) at p.4. 281968 annual report, h.c. 138 (1969-70) at p.3. 29 frank stacey, ombudsmen compared, (clarendon, 1978) at p.129. 38 remedies, redress & "calling to account" considered by the select committee."30 and by second reading in the house of lords, lord gardiner, the lord chancellor, was saying: "although the commissioner has no power to make orders, it is thought that it will be very rare in practice that a minister will not do what the commissioner advises and that the commissioner will have to report to the house of commons, where a select committee will be appointed ...the only function of the select committee will be to deal with any minister who does not comply with the recommendations of the commissioner."31 nevertheless, the earlier concept of the role of the select committee had, and continues to have, a significant effect on perceptions of the functions of the p.c.a., and on the way in which the system of public sector ombudsmen has developed in the united kingdom. the rest of this paper briefly examines two aspects of this: the fragmentation of jurisdiction in the british system of public sector ombudsmen; and what is said about the status and method of working of the p.c.a. in the government's proposals for an information commissioner. fragment anon the typical pattern internationally is that if there is a national ombudsman, he or she will have within jurisdiction a wide range of public services, including central government, local authorities, the public health service, schools, and the police.32 examples are to be found in denmark, france, and the netherlands, though there are, of course, differences of detail. here in britain alone there are the parliamentary commissioner for administration (central government), the health service commissioner (n.h.s.), the commission for local administration (local government), and the police complaints authority (police). early discussion of the possibility of establishing an ombudsman in the united kingdom had envisaged a pattern similar to that in other countries. an influential 30739 h.e. deb. col.1402 (24th.january, 1967) [emphasis added]. 31279 h.l. deb. col. 1378 (8th. february, 1967). 32 the situation is naturally different in countries with a federal constitution. 39 the denning law journal work, occasionfor ombud~manby t.e.utley published in 1961, contained a number of studies of cases involving alleged abuses by various public sector bodies, and in which it was suggested that an ombudsman would have a valuable part to play. of the dozen or so cases quoted not a single one is within the jurisdiction of the p.c.a.; and fewer than half would be within the jurisdiction of any ombudsman even today. the 1965 white paper had also envisaged the possibility in this country of an arrangement much closer to what has become the international norm: "in due course, it may be desirable to consider extending the powers of the commissioner to deal with complaints of the private citizen against the administrative actions of other public authorities. but, first, we intend to seek experience of the commissioner in the field of relationships between the citizen and central government. ,,33 however, such an extension was wanifestly impossible if the commissioner was to be no more than an instrument in the hands of members seeking to remedy grievances against bodies directly accountable to parliament, and those who refused to provide adequate redress were to be brought into line by being called to appear before a select committee of the house ofcommons.l\1r. macdermot made the point very clear on second reading: "the commissioner will be reporting to a committee of this house. this house34will then have power to investigate, to call for persons and papers, and to summon officials. to consider summoning councillors about the way in which they are administering their local affairs would be out of the question."35 mr. crossman took the same line: he expressed the view that it should be left: "to elected local authorities to work out their own way of equipping their councillors with an office designed to remedy individual 33 supra. n.4 at para. 17. 34 this may have been a slip of the tongue for "committee." 35 supra.n.25 at co1.169. 40 remedies, redress & "calling to account" grievances of ratepayers by means of a searching investigation. "36 similar arguments are current even today. for example, paragraphs 6 to 23 of the report of stage 11qfthe financial management and policy review of the commissionfor local administration (c.l.a.) in england, published in august 1996, contains a long discussion of the suggestion of the english c.l.a. that the terms of reference of the select committee on the p.c.a. (now the select committee on public administration) should be enlarged to include the c.l.a.. similar proposals have been put forward in the past; and annex b to the report contains a convenient short history of their consideration. it is impossible to do full justice to the discussion in the report in the confines of this paper. however, i do not think it is seriously misleading to say that it shows that historically the main argument in favour of extending the select committee's terms of reference in the way under consideration has been a belief that this would increase the probability that the recommendations of the local government ombudsmen would be given effect; and the main argument against has been a belief that it would be inconsistent with the constitutional position of local authorities. the following extracts from the report make these points: "the decision on whether to extend the orders of reference of the select committee on the p.c.a. would be for the house of commons as a whole, voting on amendments to standing orders which would normally be presented by the leader of the house. the issue is one which the committee itself has considered more than once ...on their first look at the subject they accepted that it would be inappropriate for a select committee of the house of commons to call democratically elected local authorities to account. later they saw advantage in extending their jurisdiction in order to summon recalcitrant councils to explain themselves. the debate has therefore been focused on whether an extension of jurisdiction would help to ensure that the local government ombudsmen's recommendations are accepted. "37 "balanced against all these considerations is a fundamental 36 ibid. col. 57. 37 report of stage il of the financial management & policy review of the commission for local administration, para.l o. 41 the denning law journal constitutional point that has from time to time been considered an overriding objection to extending the select committee's remit: that arrangements in which local authorities were required to answer to a select committee of parliament for their administrative systems and responses to reports from the local commissioners would be constitutionally inappropriate, undermining the responsibility of independent local authorities to their own local electorates."38 the freedom of information white paper paragraph 5.7 of the white paper, your right to know discusses the status and method of working of the proposed infonnation commissioner by reference to those of the p.c.a..39 it may well contain more mistakes offact and law than any other single paragraph in an official public document. to mention only those relevant to the discussion in this paper, it implies that the p.c.a. is accountable to parliament for his conduct of, and conclusions on, individual investigations; that his recommendations depend for their acceptance on political processes; and that public bodies not accountable to parliament in the same way as government departments and agencies, because they could not be "called to account" by the select committee, could not be subject to the jurisdiction of an infonnation commissioner operating in the same way as the p.c.a.. it is elementary law, and was recognised from the outset, that the 1967 act established the p.c.a. as an independent office holder, whose methods of investigation and findings in individual cases were matters solely for his discretion, subject to the provisions of the act. again, as will be argued later in this paper, the role of the select committee in examining the p.c.a.'s findings and "calling to account" is very different from that assumed by the white paper. yet another of the white paper's implications that the p.c.a.'s findings or recommendations are subject to some fonn of political override is equally without folmdation. curiously enough, it echoes a criticism of the 1965 proposals voiced by the conservative party at the time: that the party system would prevent parliament from providing effective and speedy redress when the commissioner reported adversely. ("redress" meant reversal of the criticised action, or 38 ibid. at para. 9. 39 cm.3818, the stationery office, 1997 at para.5.7. 42 remedies, redress & "calling to account" compensation if this was impossible.)40 "calling to account" the phrase "calling to account" is used in a variety of senses. in its stronger senses it carries the connotation of being able to impose disciplinary sanctions, up to and including dismissal. not far removed is the idea of requiring the body or person "called to account" to take certain action on pain of such sanctions. it seems clear that the discussion reflected in the earlier part of this paper uses the phrase in one of those stronger senses; and the following paragraphs do likewise. that is not to say that other senses are not important and relevant, only that their implications for, in particular, the constitutional issues touched on in this paper are significantly different. in my view, much of the discussion summarised in the previous three headings is based on misconceptions dating back to the preparation and passage of the 1967 act and the misleading analogies between the p.c.a. and select committee on the one hand and the comptroller and auditor general and the public accounts committee on the other, which are discussed above.41as professor roy gregory has pointed out, errors in this field can be very hard to root out. 42 these particular ones have little or no foundation, either in constitutional theory or in the way in which the select committee has actually operated in its 30 years' existence. first, it is not the committee's nonnal practice to examine reports by the p.c.a. on individual investigations,43 though it does refer to such reports in its questioning of permanent secretaries or agency chief executives if they or the general issues which they illustrate have been highlighted in the p.c.a.'s annual report or one of his regular volumes of selected investigations. secondly, it is not tile committee's practice to involve itself in securing redress for individual complainants, and only seldom has it involved itself in redress for 40 see notes on clauses, you, p.65. 41 see n.23-26 & surrounding text. 42 see "the ombudsman observed" in the international ombudsman yearbook you, p.87. 43 technically, reports to individual members under section 10(1) of the 1967 act. 43 the denning law journal groups or classes of complainant. even in the famous sachsenhausen case,44 often regarded as the case which established the effectiveness of the p.c.a as an institution, the government accepted the p.c.a's findings (and in fact went beyond them) before the select committee had considered the p.c.a's report: the committee was much put out by this.45moreover, the government, by its own account, did this not because it agreed with the p.c.a's findings or, self-evidently, because of pressure from the committee, but "out of respect for the commissioner's judgement and to support the authority of his office. "46 thirdly, despite this lack of involvement in individual cases on the part of the committee, the p.c.a.'s recommendations have very seldom been rejected by departments or agencies. contrary to the heavy emphasis put on it by much of the discussion at the time of the 1967 bill,47there has been very little use of the power to make special reports under section 10(3) of the act. there have been only two such reports; and both that on the refusal to meet late claims for compensation after the upgrading of the rochester way, bexlel8 and that on the channel tunnel rail link49as well as finding that there was maladministration, have raised issues of policy and public expenditure which one might well argue were for parliament alone to settle. fourthly, and by contrast, the committee does regularly take evidence from the relevant n.h.s. body on reports from the health service commissioner (h.s.c.) on individual cases. this has been justified on the grounds that it is appropriate for the committee to call to account "public bodies such as health authorities, which provide a service for which the secretary of state is ultimately accountable and which are subject to his direction.,,50whatever the merits of that argument in 44 the p. c.a. reported the case under section 10(4) of the act on 20th. december, 1967, [h.c. 54 (1967-68)]; it was debated in the house of commons on 5th.february, 1968; and the select committee reported on it on 16th.may, 1968 [h.c. 258, (1967-68)]. 45 "your committee think it was unfortunate that the debate in parliament preceded the examination of the case by the select committee." [ibid at para. 1]. 46758 h.c. deb.col. 115-117 (5th. february, 1968). 47 see n.l0-14 & text; n.19 & 20 & text; n.30 & 31 & text. 48 h.c. 598 (1977-78). 49 h.c. 193 (1994-95). 50 select committee on the p.c.a., second report 1979-80, (h.c. 254) at para.20. 44 remedies, redress & "calling to account" the past, its force has been greatly weakened by the passage of the national health service and community care act 1990. section 5 of that act establishes n.h.s. trusts as independent bodies corporate; and the ability of the secretary of state to give them directions is constrained by the provisions of the act. paragraph 18 of schedule 2 makes the position clear: "an n.h.s. trust shall not be regarded as the servant or agent of the crown or, except as provided by this act, as enjoying any status, immunity or privilege of the crown; and an n.h.s. trust's property shall not be regarded as property of, or property held on behalf of, the crown." although the secretary of state has power to dismiss the chairman and other non-executive directors of a trust and so "call them to account," he has no power to dismiss or discipline the executive directors (who are responsible for day-to-day management) since they are employees of the trustsl and accountable to it alone. it therefore seems clear that when the select committee takes evidence from, say, the chief executive of an n.h.s. trust it cannot be said to be calling him or her to account in the sense of the phrase relevant to this discussion. the point will become still clearer if, as seems inevitable, the select committee takes evidence from general medical or dental practitioners when it considers reports by the h.s.c. following the extension of his jurisdiction under the health service commissioners (amendment) act 1996 to include the family health services: such practitioners are independent contractors, not public employees, and are not legally accountable, except as their conditions of service provide, to n.h.s. purchasers, let alone the secretary of state, or parliament. there is no doubt that the adverse publicity which invariably follows on a critical hearing before the select committee, or criticism in one of its reports, has a powerful persuasive effect on n.h.s. bodies to accept and act on the h.s.c.'s recommendations without lengthy debate. the prospect of a critical hearing before the committee also profoundly affects the attitude of those who work in the n.h.s. to the investigations and recommendations of the h.s.c .. but there is no reason to suppose that those recommendations would not eventually be accepted in the great majority of cases, just as those of the local government ombudsmen are. 51 s.s(s)(a). 45 the denning law journal the "m.p. filter" finally, it is worth saying a few words about the "m.p. filter" the provision in section 5(1) of the 1967 act that the p.c.a. may investigate only complaints referred to him by a member of the house of commons. this provision applies to virtually no other ombudsman in the world: the only exceptions known to me are france and, i believe, sri lanka. it was logical enough under the original conception of the p.c.a. since it was assumed that his role was to help members secure redress for justified grievances, not to secure redress for them himself, there could be no point in providing direct access to him. the reality, as this paper has tried to show, is entirely different from the assumption; and the main effect of the "m.p. filter," so far as the citizen with a complaint against the government is concerned, is to deprive him or her of choice in the method of pursuing it. conclusion i suggest that the discussion in this paper leads to the following conclusions. first, practice in this country is in reality very close to the international norm as described by dr. oosting:52 the recommendations of the p.ca., and those of other public sector ombudsmen, are accepted out of respect for them and their authority, and not because of actual or threatened proceedings in parliament. secondly, the select committee has seldom involved itself in matters of redress; and when it has involved itself, it has been concerned with general policy, or the treatment of a significant class of complainants, often carrying the possibility of substantial public expenditure. thirdly, in this respect and others it is far more fruitful to regard the activities of the select committee as directed mainly towards issues of policy or management than as enforcing the acceptance of recommendations or "calling to account" (in the sense used in this paper), which are relatively minor aspects. the position is well described in the following extracts from reports by the present committee's predecessors: "following our past practice, we decided to enquire into a number of categories of complaint discussed in the commissioner's annual report, in the hope that lessons of general application might be 52 see n.3 & text. 46 remedies, redress & "calling to account" drawn from them ...we selected ...cases which illustrated the kind of problems which arise and took evidence on these from the health authorities concerned as well as from the health departments.,,53 "the chief advantage of extending our jurisdiction (sc to cover local authorities) would be that it would not create a direct method of enforcement to be imposed on authorities ...lnstead, the force of persuasion ...would be enhanced by the prospect of recalcitrant authorities being summoned to explain themselves before us. this method is all the enforcement needed by the parliamentary commissioner for administration in mainland britain and, as we know from our own experience, it provides an effective method of support for him in the exercise of his functions."54 "we therefore considered various methods of ensuring that reports from local ombudsmen are implemented along the lines of those of the parliamentary commissioner for administration: that is, that authorities may discuss points of disagreement, which is quite fair and proper, but in the end must respect the judgement of those appointed to investigate complaints against them. "55 indeed, the argument has come filii circle. the reality is that the select committee is doing something very similar to what the public accounts committee actually does rather than what those who prepared and piloted the 1967 act represented it as doing: that is, the select committee takes evidence from whomever it wishes, partly to call to account those who are already directly accountable to parliament, but much more to assemble evidence as a basis for formulating recommendations to government. it could, without difficulty, continue to do this whatever the structure of the system of public ombudsmen in this country, and whatever the form of accountability of those bodies which are investigated by the ombudsmen. the pity is that the misconceptions of 1966 and ] 967 have had more influence than the reality on the formulation of important aspects of subsequent policy. s3 h.c. 621 (1980-81) at para.9. s4 h.e. 448 (1985-86) at para.29. ss lbid.at para.18. 47 two kinds of justice: human and devine the denning law journal 211 denning law journal 2008 vol 20 pp 211-219 case commentary anonymity and adoption a clash of rights re c (a child) (adoption: duty of local authority) [2007] 3 fcr 659 mary welstead∗ the ospedale degli innocenti in the piazza della santissima annunziatia in florence, which dates back to the 15th century, was a place of refuge for babies whose mothers could not cope with taking care of them. brunelleschi, the italian architect and engineer, was responsible for the design of the beautiful colonnaded building. its façade is adorned with blue and white glazed terra cotta bas-reliefs, sculpted by andrea della robbia. these depict chubby florentine babies, naked or wrapped in swaddling clothes, and are a symbol of the building’s function. any mother who wished to surrender her baby into the care of the ospedale could place it in a stoup below a small window in a wall of the building. the stoup opened onto an inner room where a woman waited and removed each baby immediately after it was placed there. in the 18th century the stoup was replaced by a wheel, rather like a “lazy susan”. the baby was placed on the wheel, which was turned, and the baby was delivered into the arms of the woman waiting inside the orphanage. babies were sent out to wet nurses until they were weaned and then returned to the orphanage where they remained until they were fostered out or became old enough to work or, in the case of girls, betrothed to marry. all the children acquired the same family name innocenti. the most important fact about the refuge was that the mother was allowed to remain completely anonymous; no effort was made to find out her identity. the mother was able to depart knowing that her baby was in safe hands and that no one need know that she had given birth. but of course in 15th century florence there was no law which permitted a challenge to her right to anonymity and allowed the authorities to hand over the baby into the care of a member of her extended family against the mothers’ will. life in 21st century england for an unmarried mother, who wishes to surrender her child for adoption, is remarkably different from that of 15th ∗ visiting fellow child advocacy programme harvard university, visiting professor university of buckingham. case commentary 212 century florence. there is both domestic law in the form of the adoption and children act 2002 (“adoption act”), and the european convention for the protection of human rights and fundamental freedoms (1950) (echr) which may lead to an interference with a mother’s desire for anonymity. she risks the intervention of the local authority, and its social workers, to whom she has entrusted her child to be placed for adoption. in the interests of the child’s welfare, under s1 of the adoption act, and right to family life under art 8 of the convention, they may attempt to destroy the mother’s right to private life, under art 8 of the convention, and ensure that her family and the child’s father and his family, who may also have rights to family life under art 8, are made aware of the situation and be asked to care for the child. the decision of the court of appeal in re c (a child) (adoption: duty of local authority)59 addressed these issues both in terms of the adoption act and the convention. the facts in re c the appellant mother, in re c, was nineteen years old and unmarried. she had become pregnant as a result of a one off sexual encounter with the child’s father and had given birth to a baby daughter who was four months old at the time of the appeal court hearing. the mother was unaware of her pregnancy for a considerable period of time. she had not confided in the father, or her family, about her pregnancy or the baby’s birth. indeed, she had only sought medical help when she went into labour. immediately after the birth, the mother made a request to the local authority to place her baby daughter for adoption and left hospital without her. the mother made clear to the local authority, within whose jurisdiction the case fell, that she was not prepared to identify the baby’s father, and that she did not think anyone in her extended family could care for the baby. she explained to the social worker that her parents were divorced. she had left home at the age of seventeen after a serious dispute with her mother, and no longer was in contact with her.. her father was retired, and she rarely saw him. he had remarried; his new wife had three teenage children of her own. the local authority's response to this information was to make an application for a care order under the children act 1989. the judge’s decision the judge acknowledged that the application should have been made under the adoption act and that s 1(2) of the act, like s 1 of the children act 1989, provides that in reaching any decision relating to the adoption of a child 59 [2007] 3 fcr 659, ewca civ 1206. the denning law journal 213 “the paramount consideration of the court or adoption agency must be the child's welfare, throughout his life...” the judge held that s 1 of the adoption act left the local authority with no choice but to inform themselves about the background of the mother's family in order to decide the baby’s future. he maintained that it would be in the best interests of the baby: “…to be placed within the family… the reality is -as we all know nowadays -that when children are adopted they come to a time in their lives when they do enquire about their parentage and it would be cruel in the extreme to prevent this child having as much knowledge as possible about her background in the event that she is adopted, even if that information comes without the consent of the mother but as a result of the authorities informing themselves of the relevant information.”60 the judge expressed the hope that the mother would change her mind and agree to help the local authority to work with her family. he made an order which gave the mother twenty-one days to consider whether she might cooperate, but if she failed to do so, the local authority would be free to contact her family. there was a misunderstanding about the nature of the order, and the children’s social care section of the local authority contacted the mother's parents by letter. it asked to meet with them but failed to explain the purpose of such a meeting. the parents subsequently learned of the baby’s birth and offered to help the local authority resolve the situation. the mother appealed the order. the judgment of the appeal court (arden, collins, thorpe ljj) there were two issues arising on the appeal. first, whether s 1 of the adoption act imposed an absolute duty on the local authority, prior to the baby’s adoption, to contact any of her biological relatives to ascertain whether she could be cared for by them. second, how the court’s discretion to give directions about contacting relatives should be exercised. arden lj gave the leading judgment, with which collins and thorpe ljj concurred, and the mother’s appeal was allowed. 60 ibid, at para 11. case commentary 214 judicial discretion prior to the adoption act prior to the adoption act 2002, arden lj explained, the courts had discretion to decide whether to take into account the views of an unmarried father, who had not acquired parental responsibility, of a newborn baby before she was placed for adoption. in general, there was a judicial assumption that the father should be informed of his child’s birth unless there were very good reasons not to do so. art 8 of the convention confirmed that approach (see rozanski v poland).61 however, art 8 presupposes the existence of a family (see marckx v belgium;62 johnson v united kingdom).63 thus, a father will sacrifice his right if his relationship with the mother was fleeting and/or there was little semblance of a family to which he belonged (see nylund v finland).64 similarly, he will not be contacted if the relationship with the mother was abusive. the decisions in re h, re g (adoption: consultation of unmarried fathers)65 illustrates the courts’ approach to the rights of fathers under art 8. in re g, the mother had never lived with the father of her child. their relationship had not been sufficiently committed for the court to find that they were a family prior to the child’s birth. consequently, the father had no right to be informed of the adoption proceedings. by contrast, in re h, the mother had cohabited for a time with the father of the child and had previously given birth to another child by him, and to whom the father showed a continuing commitment. the father was held to have a right to family life and should therefore be consulted about the adoption (see also jrm v netherlands).66 contact with the father, of course, presupposes that his identity is known. if the mother refuses to identify him, there is little that a court can do to enforce contact. in re l (2007),67 munby j stated that apart from repeating the request to the mother to identify the father no further steps could be taken. the statutory framework of the adoption act arden lj maintained that the judicial discretion relating to the involvement of unmarried fathers, without parental responsibility, in the adoption proceedings had been changed by s1 of the adoption act. that section now provides a statutory framework, albeit with a discretionary element, for the determination of any decisions relating to the adoption of a 61 (2005) app 55339/00. 62 (1979) 2 ehrr 330. 63 (1999) 27 ehrr 296. 64 application no 27110/95. 65 (2001) 1 flr 646. 66 application no 16944/90. 67 ewhc 1771. the denning law journal 215 child including questions of contact with the child’s family of origin, prior to placement for adoption. the overarching paramountcy principle which is laid down in s 1(2) of the act is child centred rather than mother centred. adoption is seen more as a means of ‘giving a child a family and not the child to a family’ (see frette v france).68 s 1(3) specifically emphasizes the fact that delays in decision making are not generally beneficial for the welfare of children, and the courts and the local authority must bear that in mind. s 1(4) provides a non-exclusive, non-hierarchical check list of the matters to which the local authority and the court must have regard in making a decision relating to the future adoption of the child. they are: • any likely effect on the child of ceasing to be a member of his or her original family (s1(4)(c)); • the relationship which the child has with relatives or any other person who is viewed as relevant (s1(4)(f)); • the likelihood of that relationship continuing and the value of it to the child (s1(4)(f)(i); • the ability and willingness of any relative or other person to provide the child with a secure environment in which the child’s needs and development can be nurtured (s1(4)(f)(ii); • the wishes and feelings of the child’s relatives or of any other such person regarding the child (s1(4)(f)(iii). the duty to consult and the welfare principle the meaning of relatives in s 1(4)(f) of the act, is not limited to legal relations (s 1(8)) nor, according to arden lj, was it limited to those with whom the child has had a relationship but might also include, in accordance with art 8 of the convention, potential relationships which the child might develop in the future (see pini v romania).69 however, she circumscribed the effect of the section and explained that the combination of s 1(2) and s 1(4)(f) means that: “… when a decision requires to be made about the long-term care of a child, whom a mother wishes to be adopted, there is no duty to make enquiries [of the family] which it is not in the interests of the child to make, and enquiries are not in the interests of the child simply because they will provide more information about the child's background: they must genuinely further the prospect of finding a long-term carer for the child without delay. this interpretation does not violate the right to 68 (2004) 38 ehrr 21. 69 (2005) ehrr 1. case commentary 216 family life. the objective of finding long-term care must be the focus of making any further enquiries and that means the court has to evaluate evidence about those prospects. that did not happen in this case.”70 arden lj found that the judge in the court below had merely considered: “…that in adult life the child would benefit from more information about the child’s father. but in the context of the decision-making with which the judge was concerned, i do not consider that that fact could of itself animate indeed the exercise of discretion. the immediate question with which the guardian and local authority were concerned was who would look after the child on a long-term basis. the enquiries had to be focused on that result. that meant looking at the evidence about the prospective carers within the mother’s family… finding out about the child’s background for her information in the future was secondary to that objective, and it would inevitably lead to delay.”71 the father, in re c, in accordance with the authorities above, had forfeited his right to any relationship with her. arden lj accepted that the mother’s clear, and negative, views about the suitability of anyone within her daughter’s family of origin as a potential carer, was not a conclusive reason not to permit contact with the family, but it should certainly have been taken into consideration. throughout her judgment, arden lj stressed that in any decision relating to the question of contacting a new born baby’s extended family, the welfare principle demanded that a permanent home be found for her, without delay, with parents who could commit to care for her throughout her life and with whom she could form a lasting relationship. the bond with her foster parents had already begun to develop and it would be very hard for her to cope with the move to new adoptive parents if a decision about her future was not made with the utmost urgency. in granting the mother’s appeal, the court of appeal made an order to the effect that the local authority: • must not identify the father or inform him of the birth of the baby; • must not introduce the baby to her grandparents or assess them as potential carers for her; 70 ibid, nb 1, para 3. 71 ibid, nb 1, para 21. the denning law journal 217 • must meet with the maternal grandparents to discuss the letter which it had sent to them and explain to them the outcome of the appeal. the benefits of anonymity thorpe lj, with a certain amount of empathy, drew attention to the dilemma faced by mothers who wish for anonymity vis-a-vis the father of their child and/or their extended families when relinquishing a baby for adoption. he accepted that there were valid social policy considerations for permitting the mother to treat the experience of pregnancy and birth as a matter for her alone and not one to be shared with the baby’s extended family (see eg odièrvre v france).72 thorpe lj pointed out that in france it had been long acknowledged that anonymity for mothers reduced the risk of abortion, infanticide or abandonment, as well as possible damage to the mother or her child as a result of giving birth secretly. a further risk was referred to by thorpe lj; if the court of appeal was to refuse the mother’s appeal and hold that the local authority was under an absolute duty to contact the child’s extended family, it could affect fast track adoption. fast track adoption under s19 of the adoption act, together with the emphasis in s 1(3) of the act on the prejudicial effect of delay on the child in placing her with an adoptive family, was considered to be a corner stone of the legislation by parliament. babies need stable families and they need them as rapidly as possible after birth if they are to bond with their adoptive parents, and grow up into psychologically well-adjusted adults. the adoptive child’s rights to knowledge of her birth family under english law, an adoptive child has minimal rights to knowledge of her family of origin. at the age of eighteen, she may consult the adopted children register and acquire a copy of her birth certificate. armed with this information, she may then consult the adopted contact register, which lists birth parents and relatives of adopted children who wish to be contacted by an adopted person. the latter may also list her own details on the register. the judge in re c, appeared to be taking it into his own hands to attempt to ensure that more information about the child’s family of origin would be available to her at a later date even if none of its members were able to care for her. it may be that the child’s own art 8 rights could be called into play to support such an approach. it would however conflict with the mother’s right to a private life. 72 (2003) 1 fcr 621. case commentary 218 fathers’ rights many fathers of adopted children maintain that their art 8 rights to family life are far too strictly limited by the need to demonstrate the existence of a family and some level of permanency in their relationships with a child’s mother, prior to the child’s birth. they may well be prepared and able to take care of a child but will not be given the opportunity to do so even if the mother is prepared to reveal the father’s identity. it may be that a mother’s right to anonymity requires to be balanced more equally with the father’s right to contact with his child (see families need fathers www.fnf.org.uk/). baby safe havens thorpe lj, in re c, pointed out that there is not only one solution to the tension between the rights of the mother and the rights of the child. in the us, a very different solution has been found to help mothers who feel unable to care for their new born children and who do not wish their families to be involved. forty-six states have now enacted legislation permitting the anonymous, but responsible, handing over of unwanted babies. massachusetts is one of them. the 21st century fire-houses, hospital emergency rooms and police stations of massachusetts are a far cry, particularly architecturally, from the ospedale degli innocenti, yet they too have been charged with the reception of abandoned babies under the massachusetts baby safe haven law which was enacted with a three year sunset clause in october 2004. in august 2007, the governor of massachusetts, deval patrick, made the legislation permanent. the law was a sympathetic, emotional response to the predicament of an abandoned baby, known as baby vinnie, who was found wrapped in a blanket in a churchyard on martha’s vineyard by a woman out walking. the baby was suffering from hypothermia; he had been lying in the direct line of a sprinkler system throughout the night and was thoroughly soaked through. he survived after hospital treatment and was adopted. the massachusetts law legalizes the abandonment of babies up to seven days old, as long as they have not been abused, and have been handed over to an official at any of the designated locations. the mother’s total anonymity is permitted, although those handing over babies are encouraged, but may not be coerced, to give any information which might help to ensure the satisfactory future care of the child. any child surrendered in this manner is immediately place in the custody of the department of social services and, after a medical screening, is placed for adoption. the law also provides for a baby safe haven hotline which operates twenty-four hours a day and gives information to pregnant mothers about pregnancy help and the post-birth options open to them. the denning law journal 219 the law is not without its vociferous critics. the liberal pro-choice lobby maintains that it is a creation of the american anti-abortion lobby and merely an indirect means of strengthening its position. after all, if a parent can legitimately abandon a baby at birth, the case against abortion becomes even stronger. others argue that it is unfair to the baby who, if the mother decides not to hand over any personal information, will lack knowledge of its biological parents and genetic background which might be essential for medical reasons at some future date. the law also appears to conflict with the growing demands of those involved in child welfare that all children, whether adopted, or conceived by way of reproductive technology involving donor eggs or sperm, have a right to information about their biological origin. psychologists have voiced concern that the seven-day time limit places enormous and unfair pressure on a mother, who has just given birth, to make a momentous decision about the future of her child when she is in an emotionally fragile condition. unmarried fathers fear that mothers may use the law to prevent any possibility of their involvement with their biological children. the more serious sceptics believe that the type of parent for whom the legislation was enacted is unlikely to be sufficiently organized or confident enough to take her baby to a designated place of safety. it is all too easy to be dismissive of the benefits of the legislation; few babies have been surrendered to the authorities in massachusetts since late 2004 compared with the vast numbers received at the ospedale degli innocenti over a similar period of time. however, it is possible that the publicity surrounding the legislation has drawn attention to the problems experienced by those who find themselves unhappily pregnant. it may help mothers, who might have been tempted to abandon their babies, to find an alternative route. the legislation may be imperfect but it may help to safeguard the welfare of unwanted babies and is certainly preferable to abandonment. the potential impact of the cisg on the common laws of england and the republic of ireland: a legal anacatataxis or a trivial the denning law journal 43 the potential impact of the cisg on the common laws of england and the republic of ireland: a legal anactataxis or a trivial matter of implementation? the lessons of comparative law antonios platsas* introduction this article is based on the speculative hypothesis that the united kingdom (“uk”) as well as the republic of ireland (“ireland”) will eventually implement the united nations convention on contracts for the international sale of goods 1980 (“cisg 1980”) into their legal systems. out of the 25 member states of the european union1 only 5 have yet to accede to the cisg 1980: cyprus, the republic of ireland, malta, portugal and the united kingdom; all of them are by and large common law systems with the exception of portugal. however, the article will focus on the british and irish “non-compliance” with the cisg 1980 and the potential modifications that their trade law systems would have to face to come up to terms with a potential implementation of the cisg 1980. the analysis is by way of a comparison between the current common trade laws of england and ireland with the cisg 1980 (and to a certain extent with the cisg compliant nations).2 this is followed by an analysis as to why the implementation of the cisg 1980 will amount to a legal anacatataxis3 rather than a mere triviality of implementation in these countries. * llb coventry university & university of potsdam, llm international business law, london school of economics, university of london, researcher in comparative law and legal methodology trinity college, university of dublin. 1 on the basis that all 10 candidate states will join the european union by may 2004. 2 there are now 62 contracting states to the cisg from all regions of the world. these also include significant non-european trade partners of the uk and the ireland such as the usa, canada and australia. 3 whole reshuffling or restructuring. the denning law journal 44 a plethora of differences between common trade law and the cisg 1980: a plethora of comparisons make no mistake, the cisg 1980 and the common law rules of the respective trade laws of england and ireland are worlds apart. the legal comparatist identifies approximately ten grounds of comparison4 between the cisg 1980 and anglo-irish commercial law (“common law”). on the face of it, the differences appear insurmountable. however, it will be suggested herein that even if this is so, the anglo-irish legal system could embrace the notions and mechanics of the convention. (a) the concept of “good faith” under cisg 1980 the first major difference relates to the concept of “good faith” recognised under article 7 (1) cisg 1980. it is questionable as to what extent the notion of good faith applies in international sale of goods under the convention. a significant point to note is that the us legal system has generally accepted this notion in the formation of international contracts for the sales of goods bringing the cisg into force since 1988.5 on the other hand and on a macro-comparative basis, one notes the rather explicit absence of “good faith” between traders in anglo-irish law, with the exception of consumer contracts due to the influence of european union law (“eu law”).6 the case remains, however, that english law does not generally recognise good faith in commercial contracts at the stage of performance and enforceability of the contracts. in re moore & co v landauer & co the plaintiff agreed to sell to the defendant canned fruit in cases of thirty.7 however, upon delivery the fruit was packed in cases of twenty-four. it was held that the buyer was entitled to reject the goods since the description of the goods had not been complied with. this case illustrates that “good faith” may not intervene to the 4 although comparative law is mainly engaged with comparisons of differences, it could be used to highlight similarities too. thus, a ground of comparison may well be either a difference or a similarity; though as it is apparent, it is differences mainly that one meets in a comparison of the cisg 1980 and anglo-irish trade law. 5 the united states of america signed the cisg on the 31of august 1981, ratified it on the 11of december 1986 and brought into effect on the 1 of january 1988. 6 prior to council directive 93/13/eec there was an almost complete absence of good faith in consumer contracts of sale in the uk and the ireland. a good analysis on the impact of this directive remains the text of professor hugh collins. see hugh collins, “good faith in european contract law”, oxford journal of legal studies (1994). the latter text remains the most authoritative text on the effect of good faith in european law in general and the british law of consumer contracts in particular. 7 [1921] 2 kb 519. the denning law journal 45 rescue of the plaintiff seller, if he has failed to comply either with the description or the packaging of the goods in question. this case remains a good example of the very limited application of the concept of “good faith” in common law. in arcos v ronaasen8 the buyers were entitled to repudiate the contract for mere breach of condition, but really in order to take advantage of the falling market price of timber. this was allowed by way of the court’s construction. the position in irish law is analogous. the position of the american trade law9 is closer to the cisg 1980 model. (b) conformity of goods the second major difference between the trade laws of england and ireland and the cisg 1980 relates to the conformity of the goods of the contract in question. in particular, misrepresentation under article 25 cisg 1980 occurs only if the breach has been “fundamental”. a fundamental breach occurs when the party in breach has caused detriment to the innocent party and the party in breach did not foresee this.10 it is generally accepted that common law courts are far more generous than the cisg 1980 on misrepresentation, whilst rescission is not allowed, if the goods have been accepted as in leaf v international galleries.11 additionally, when it comes to conformity of goods, the meaning of the word “particular” presents difficulties between the common law and the cisg 1980; thus, under article 35 (2) (b) cisg 1980 fit for any “particular purpose” has been taken to mean a “special purpose”, whilst under preist v last12 8 [1933] ac 470. 9 for this a mere reference to article 2-103 (1) (b) of the uniform commercial code 1952 (as amended) should suffice. article 2-103 (1) (b) (may 1, 1998, draft) defines good faith as follows: "good faith" in the case of a merchant means honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade. 10 in order for the buyer to claim this, he must make a declaration of avoidance by notice to the party in breach as in article 26 cisg 1980. if this succeeds then “avoidance” under article 49 cisg 1980 is the case. the seller too, if he is the innocent party can claim avoidance under article 64 cisg 1980. obviously the provisions on damages (articles 74-77 cisg) may also be triggered. 11 [1950] 2 kb 86. the main issue was that of a mistake discovered after many years by the plaintiff in relation to a sale of painting; it was said inter alia that an action could not have been based on mistake, since there was no error in what was handed over. the picture sold was a specific one. the parties were agreed in the same terms on the same subject matter and that has been sufficient to make a contract. acceptance of the specific good in question had already occurred. 12 [1903] 2 kb 148. http://www.law.cornell.edu/ucc/2/2-104.html#merchant_2-104 the denning law journal 46 “particular purpose” has to be taken to mean a “commonplace purpose”.13 furthermore, a point to be made is that article 35 cisg does not make allowance for automatic rejection of the goods. common law takes a significantly different approach on this and therefore in arcos v ronaasen14 it was held inter alia that the description of the goods amounts to a condition. a breach of condition such as misrepresentation for instance is accordingly a genuine basis for rejection rights to arise in common law. further, whilst under article 38 cisg 1980 there is an obligatory duty to examine the goods upon delivery, it would seem that no such duty exists under common law (unless it is expressly prescribed in the terms of the contract). consequently, if common law per se does not recognise any such duty, the inspection of the goods by the purchaser must be seen at best as a right of the latter only rather than a duty as in the cisg 1980. (c) anticipatory breach thirdly, the attitudes of the cisg 1980 and common law towards the notion of anticipatory breach vary. thus, under article 71 (1) cisg 1980 “a party may suspend the performance of his obligations if, after to the conclusion of the contract, it becomes apparent that the other party will not perform a substantial part of his obligations…”15 as the notice requirement is very usual in the cisg 1980, the party intending to suspend performance after the conclusion of the contract must give reasonable notice to the other party.16 accordingly, even though the notion of anticipatory breach is recognised to a certain extent in common law, it does not successfully tackle cases in a systematic and organised manner of the cisg.17 this is surely due to the fact that suspension or anticipatory breach is seen not as a matter of course but rather as a matter of 13 see michael bridge the international sale of goods: law and practice, (oxford oup 1999) at p 80 (para. 3.14). additionally, the statutory expression of preist v last can be found in s 14 (1) of the british sale of goods act 1979 (as amended) [hereinafter sogsa 1979] and s 10 of the irish sale of goods and supply of services act 1980 (old s.14 (1) sogsa 1893) [hereinafter sogsasosa 1980]. 14 [1933] ac 470. 15 that is if the party in that cannot perform (a) is seriously deficient in his ability to perform or non-creditworthy; or (b) his conduct in preparing to perform or in performing the contract is makes it apparent that he will not perform a substantial part of his obligations as in article 71 (1) (a) and (b). 16 as in article 72 (2) cisg. 17 see universal cargo carriers corporation v citati [1957] 2 qb 401. the case provides us with the criteria for anticipatory breach to arise in english law; these were stated by devlin j. the denning law journal 47 exception in common law.18 bearing this in mind, it would seem that the traditional perception of common law does not give formal recognition to anticipatory breach per se and that is why the approach of the cisg 1980 towards anticipatory breach is seen as a major point of departure from common law,19 even if statute law may have made some indirect allowance for this in common law systems.20 (d) termination fourthly, the cisg 1980 treats avoidance or termination of the contracts very differently from common law. 21 as already noted the cisg 1980 requires a “fundamental breach” for the termination of the contract to take effect. nevertheless, it is particularly onerous for the innocent party to prove this or rather to override the requirements for this.22 one has to override the relevant legal requirements of article 25 cisg 1980 and then serve notice of this to the party in fundamental breach under article 26. this is the only way that an innocent party can successfully disengage himself from his obligations under the cisg 1980 for termination of contract to arise. this attitude, however, would characterise the cisg 1980 as a “pro-contractual” legal instrument, for the cisg 1980 takes such a stance that the contracts are to be upheld, unless things “go terribly wrong” as in the case of fundamental breach. common law, on the other, takes a significantly stricter stance on this; it seems to be “less pro-contractual”. for instance, in the case of a common law contract the test is whether the term breached is a condition, even if the breach is only minor.23 and this for good reason, namely, legal certainty. even if common law contracts such as the ones 18 suspension in common law arises only in the rather rare instances where the buyer’s duty to make payment is not essential, whilst the seller’s concurrent duty to make delivery is. in this case, the seller declines to perform so long as the buyer fails to do so. see total gas marketing ltd v arco british ltd [1988] 2 lloyd’s rep 209 (hl). 19 see michael bridge the international sale of goods: law and practice, oup, 1999 at p 89 (para 3.29). 20 see s 28 of the british sogsa 1979 (as amended) and s 28 of the irish sogsa 1893 (as amended). 21 avoidance is the term that the cisg uses of what one would refer to for termination of contract in common law. the common law terminology refers to termination of contract as rescission of contract also. 22 see above on the analysis on the paragraph in relation to conformity of the goods. 23 as in arcos ltd v ronaasen [1933] ac 470. in british law this is subject to s 15a sogsa 1979 (as amended), which stipulates that “where the breach is so slight that it would be unreasonable for him (the buyer) to reject the goods, then the breach is not to be treated as a breach of condition, but may be treated as a breach of condition. the denning law journal 48 on fob24 and cif25 terms require utmost strictness in their performance, this is mainly done for the pursuit of certainty. moreover, no onerous requirement of notice is required when the contract is terminated. thus the buyer in the case of common law contracts of an international sale will be entitled to terminate where the goods are shipped in time, that is outside the shipment period, as in bowes v shand,26 where it was held that “time is of the essence”. peculiarly, what the cisg 1980 calls a fundamental breach is also found in another form in common law, on what the common lawyer would refer to it as a breach of intermediate (aka innominate) term as in hong kong fir shipping co ltd v kawasaki kisen kaisha ltd,27 where it was said that the contract is discharged, if the other party’s breach of an intermediate term deprives the innocent party of “substantially the whole benefit which it was the intention of the parties as expressed in the contract that he should obtain as the consideration for performing these undertakings.”28 another option for a termination of contract to arise in common law is where the seller refuses to perform or is not in position to fulfil his obligations. alternatively, one could add that a contract is simply terminated where the buyer may reject the goods. in either case the innocent party may be entitled to damages. to sum up, termination under the cisg 1980 is the case where fundamental breach arises, whilst termination of contract in common law is the case when a breach of term or intermediate term has arisen. article 35 cisg 1980, on the other hand, does not allow the buyer to reject the goods or documents unless the breach has been fundamental, except perhaps in the case where such a buyer is entitled to anticipatory breach. in common law, however, the parties are free to withdraw unilaterally from their obligations to each other, with damages to arise in favour of the innocent party. in relation to termination of contract, an “invention” of german inspiration is found in the cisg 1980, an invention that is not found in common law, unless of course the contracting parties expressly incorporate this in a contract under the common law; this german device is the so-called nachfrist. even though the cisg 1980 does not use the german term for obvious reasons, it has dramatically 24 fob is the abbreviated form of a “free on board” contract for the international sale of goods. in a contract as such it is the seller that pays the shipping costs (and usually the insurance costs) from the point of manufacture to a specified destination, at which point the buyer assumes responsibility. 25 cif is the abbreviated form of a “cost, insurance and freight” contract for the international sale of goods. all these costs (cost, insurance, freight) are normally paid by the seller and are included in the price of the contract. in a contract as such the seller owns the goods until they are loaded on vessel. from that point of time the seller does not normally hold any further responsibility in relation to the goods. 26 (1877) 2 app. cas. 455. 27 [1962] 2 q.b. 26 at 66, per lord diplock l j. 28 that is the innocent party. the denning law journal 49 introduced the notion into its articles.29 in articles 47 (1) and 63 (1) cisg 1980 its application becomes apparent. the problem of late delivery may be successfully circumvented without the need for the whole contract to collapse as is the case in common law. nachfrist provides some additional period for performance to the party in default, where the defaulting party has served notice of the default to the innocent party. in practical terms this means that the seller that has delayed delivery of goods or the buyer that has failed to pay the price may take advantage of some additional period that must be notified to the innocent party. the contract cannot be avoided in this case, though the innocent party is not deprived of his right to claim damages for delay in performance as articles 47 (2) and 63 (2) cisg 1980 provide. obviously, since time is of the essence in common law, the perception of the matter for the common lawyer is significantly different.30 it would seem that where nachfrist is almost essential for the cisg lawyer by reason of preservation of the contractus,31 the denial of nachfrist by the common lawyer32 is the case by reason that time is of the essence. in cisg contracts it would seem that they have to be upheld by reason of nachfrist, whilst in common law, international contracts will only be upheld when they are respectful of the significance of the most important commodity in the international commodities markets: time. (e) cure of contractual defects the fifth major incompatibility between the cisg 1980 and anglo-irish common law treat cure of contractual defects differently. thus, the cisg 1980 recognises the cure of both documents and goods, whilst common law allows at most cure of documents, only where time allows.33 under the cisg 1980 the seller may cure performance under articles 37 and 48. what would be simply intolerable in common law, would be the fact that the seller cannot cure any defect in the goods and/or the documents after delivery has taken place, for time has to be taken to be a condition. remarkably, under article 48 cisg the seller may cure even after delivery has taken place.34 what is the legal result, however, 29 in the english text of the convention the term is translated as “additional period of time for performance of obligations.” 30 bowes v shand (1877) 2 app cas 455. 31 latin for contract or agreement. 32 by “common lawyer” here british and irish lawyers are meant. however, that is not to say that american lawyers are not common lawyers. the main difference of the latter, however, with the lawyers in the uk and ireland is that when it comes to international trade law, the american legal system has embraced the cisg 1980, whilst the angloirish legal system has not. 33 supra 30. 34 that is remarkably from the british and irish common lawyer’s point of view. the denning law journal 50 if the seller insists on repair rather than substitution of the goods? professor bridge suggests that under article 46 (2) cisg 1980 the buyer can require the substitution of the goods, only in the case that the breach on the part of the seller has been fundamental. otherwise than that, one has to construe a pro-seller stance by way of application of the good faith notion under article 7 (1) of the cisg 1980 and indeed one wonders why that should be the case from the common law point of view. it should be noted that in this latter case, if the breach is not fundamental, it is the seller who chooses either to repair faulty goods or to substitute them.35 moreover, another complication as far as a common lawyer is concerned, is what would happen if the buyer avoids the contract by reason of fundamental breach under article 49 cisg 1980, before the seller serves a notice of attempt to cure a defect? whilst logic would suggest that the buyer is perfectly able to do so, the cisg 1980 does not seem to follow the path of logic. consequently, since one has to take into account that the cisg 1980 exists to uphold international contracts, a willing seller that serves notice of cure after the notice of termination on the part of the buyer may still be able to replace the goods in question and prima facie preserve the contractual arrangement. this is for two reasons: firstly the cisg must be interpreted in the light of good faith and secondly, as honnold suggests, one has to weigh up the fundamental breach in the light of the declared or possible willingness of the seller to cure.36 at common law, apart of course from the fact that there is no such requirement of notice for an additional time fixed for the performance of obligations, there is no such onerous requirement as a notice to cure, unless the parties have agreed prior to the conclusion of their contract of sale. (f) buyer’s right to reject the sixth incompatibility between anglo-irish trade law on the one hand and the cisg 1980 on the other is the fact that a buyer in an international contract of sale under the cisg 1980 would exercise his rejection rights in a substantially different way from the common law version of international sales. simply put the cisg 1980 does not per se recognise the “inconsistent act doctrine”, since the buyer may unilaterally sell the goods in question without any negative legal consequences. the convention, therefore, allows restitution notwithstanding resale, consumption or transformation of the goods by virtue of article 82 (2) cisg 1980, that provides for a right as such. this latter provision must be one of the most diametrically opposed provisions of the cisg 1980 towards common 35 see michael bridge the international sale of goods: law and practice, oup, 1999 at p 93 (para 3.34). 36 jo honnold, uniform law for international sales under the 1980 united nations convention, kluwer, 2nd edition, 1991 at p 376. the denning law journal 51 law. for instance, the english lawyer would have good grounds of principle to not even contemplate this; this because he would surmise that under s. 35 (1) (b) of the british sogsa 1979 (as amended) and s. 35 of the irish sogsa 1893 (as amended)37 a buyer cannot simply reject the goods, if he has received them and thereafter “does any act in relation to them which is inconsistent with the ownership of the seller” (inconsistent act doctrine). even more peculiarly, a buyer under article 82 (2) cisg 1980 must at least make a partial restitution of the goods, if it is impossible to make full restitution of the goods. whereas under s. 35a of the british sogsa 1979 (as amended) a buyer may make partial restitution only as of right. the buyer has the right to retain the remaining goods. a final difference in relation to the rejection rights is that the cisg 1980 imposes a positive obligation on the buyer under article 86 to preserve the goods in question, be it at the final expense of the seller. however, both british and irish law by way of s.36 sogsa 1979 (as amended) and s.36 sogsa 1893 (as amended), clearly suggest that unless otherwise agreed, the buyer is not bound to return the goods in question to the seller. consequently, any such buyer would have no duty to preserve the goods either, for a buyer that does not have to return goods that refused to accept them, cannot be construed as being under an obligation to preserve them. (g) calculating damages the seventh great difference between the cisg 1980 and the british sogsa 1979 (as amended) and the irish sogsa 1893 (as amended by sogsasosa 1980) the differing techniques used to quantify damages technique. for the purpose of this analysis it should suffice to say that the anglo-irish method of calculating damages is simpler than the action quanti minoris38 of the cisg 1980, which is a legal device of roman law origins. by way of example, let us assume that an international contract for the sale of a cargo of maize has been concluded. the contract price for this is £ 100,000. by the date of delivery the goods are and s.53 (5) of the irish sogsa 1893 (as amended) the damages that the buyer may receive in a falling market, should be calculated as follows: nonconforming, whilst the market price of maize happens to have fallen to £70,000. in perfect condition the cargo maize would have been worth £85,000; since, however, some of the maize cargo is non-conforming the maize cargo and the 37 as amended by the sogsasosa 1980. 38 actio quanti minoris stands for that system of calculation of damages, whereby the quantification of damages occurs by way of a reduction in price. a good analysis on this is provided by e. bergsten and a.miller “the remedy of reduction in price” (1979) 27 american journal of comparative law 255. the denning law journal 52 market price thereof has fallen; its value is on delivery only £59,500. under s. 53 (3) of the british sogsa 1979 (as amended) £70,000 £59,500 = £ 11,500 (damages owed to the buyer if the sale of the contract for the international sales of goods is governed either by the laws of the uk or the ireland). under article 50 cisg (action quanti minoris) the damages that the buyer may receive in a falling market, should be calculated as follows: £70,000 £59,500 = £11,500 (this amounts to 16.42% of the market price of £70, 000) then this relevant ratio (16.42% in our case) is applied to the initial contract price (£100,000). 16.42% of £100,000 = £16,420 (damages owed to the buyer if the contract for the international sales of goods is governed by the cisg 1980). alternatively, let us assume that the contract price is again £100,000, and that by the date of delivery the goods are again non-conforming, whilst the market price of maize happens to have increased to £150,000. in perfect condition the cargo maize would have been worth £120,000; since, however, some of the maize cargo is not conforming the maize cargo and the market price thereof has fallen, its value is only £85,000 upon delivery. under s. 53 (3) of the british sogsa 1979 (as amended) and s. 53 (5) of the irish sogsa 1893 (as amended) the damages that the buyer may receive in a falling market, should be calculated as follows: £150,000 120,000 = £30,000 (damages owed to the buyer if the sale of the contract for the international sales of goods is governed either by the laws of england or the ireland). under article 50 cisg (action quanti minoris) the damages that the buyer may receive in a falling market, should be calculated as follows: £150,000 £120,000 = £30,000 (this amounts to 20% of the market price of £150, 000) then this relevant ratio (20% in our case) is applied to the initial contract price (£100, 000). 20% of £100,000 = £20,000 (damages owed to the buyer if the contract for the international sales of goods is governed by the cisg 1980). the denning law journal 53 (h) frustration the eighth and final difference between the cisg 1980 and common law trade rules is that they have a variant approach on frustration of the contract of sale. this time the cisg 1980 clearly departs from the anglo-irish law perspective rather than the american law view.39 according to hirji mulji v cheong yue steamship co ltd when a contract becomes frustrated common law dictates that this contract be prospectively discharged.40 bridge suggests that this position is a rather inflexible attitude of common law, since this approach simply does not address matters such as partial or temporary frustration. 41 article 79 cisg 1980 takes a rather closer look to the american legal technique on frustration; consequently, this article broadly justifies a party’s impossibility “due to an impediment beyond [this party’s] control”. however, this proviso neither stipulates, nor implies that the parties are discharged from their contractual obligations. in effect, if a seller cannot perform due to force majeure for instance, the buyer may well find himself paying the price of the goods that he may never have been delivered. however, that is not say that he cannot later avoid such a contract. this may be achievable through three different legal paths: (1) either the buyer holds that the non-performance on the part of the seller is a fundamental breach as in article 25 cisg; or (2) he perceives the matter as one of non-performance as in article 72 cisg and the contract is repudiated; or (3) the buyer allows the seller an extension of time to perform his duties but the seller has still not performed. in this latter case the buyer can claim restitution of money that he has already paid to the seller under article 81 (2) cisg 1980. an insignificant number of similarities between common trade law and the cisg or concessions that the cisg makes to common law systems (a) specific performance specific performance is recognised in the cisg 1980, though the common lawyers of the us, canada and australia have always felt that their fora will not 39 see michael bridge the international sale of goods: law and practice, oup, 1999 at p 106 (para 3.57). 40 [1926] ac 497. 41 supra at n.43. the denning law journal 54 grant it as much as the continental courts would. farnsworth, an american academic, referred to specific performance as a remedial provision that is foreign to the common law tradition.42 obviously, he did not mean that an american or a canadian judge may not order the remedy of specific performance in particular, though quite rare cases, but rather he meant that the common law judges would use it less frequently than the civilian judges would. articles 46 and 62 1980 expressly refer to specific performance though it is article 28 cisg 1980, which makes a significant concession to common law judges: “if…one party is entitled to require performance of any obligation by the other party, a court is not bound to enter a judgement for specific performance…” therefore, it is the forum of the judgement that would most probably signify the remedy pursued, not the substantive law of the contract per se. (b) mitigation of loss another similarity between anglo-irish trade law and the cisg 1980 occurs in the sphere of mitigation of loss cases. by and large article 77 cisg 1980 draws a parallel line to the attitude of anglo-irish trade law, since under this provision the plaintiff must (after the defendant’s breach of contract) take all reasonable steps to minimise losses due to this breach, in order for the plaintiff to recover damages from the defendant. in accordance with the civilian law tradition, the cisg 1980 does not pedantically stipulate the facts of the cases where mitigation of loss may occur. it merely sets out guiding principles. however, one has to take into account the diversity of legal systems that have acceded to the cisg 1980. the fora from different countries does not always present identical legal results when the mitigation of loss doctrine is applied. the impact of the cisg 1980: an anacatataxis rather than a trivial matter of implementation due to the plethora of differences to be overridden to draw an analogy, the implementation of the cisg 1980 in anglo-irish law would be as decisive as the full implementation of the european convention 42 e allan farnsworth discussion, in a e von overbeck présidence, wiener übereinkommen von 1980, colloquium lausanne 19/20 november 184, (zürich: schulthess 1985) p 105. the denning law journal 55 on human rights 1950 (“echr”) by the uk human rights act 1998. the differences between the cisg 1980 and echr are obvious: the former is an international instrument of law, whilst the latter is a regional instrument of law; secondly, the former will alter the way by which a national legal system (the united kingdom and/or ireland) will “see itself” towards other legal systems in the formation of international contracts, whilst the latter has altered the way by which the british legal system “sees itself” towards its own nationals in the pursuit of civil liberties justice. thirdly, whilst the echr brought a cataclysmic change in the sphere of public law in the uk, the cisg 1980 has the potential to bring an equivalent legal anacatataxis in the sphere of british and irish private law. the cisg 1980 has never been welcomed in the u.k. and ireland. despite the fact that most of the developed world has willingly embraced the cisg 1980, including the great trading powers such as the usa, australia, canada, germany, france, the russian federation and china, the voices for the preservation of the current status quo of trade law in the uk and ireland well exceed those in favour of the adoption of the cisg 1980. at the preface to benjamin’s sale of goods, professor guest has made his case for the nonadoption of the cisg 1980 quite clear: “…the convention is not well adapted to sales on cif, fob and other terms common in overseas sales, and its often vague or open-textured terminology would, if it were to displace the present relatively settled english judge-made rules governing contracts on such terms, be a source of considerable (and regrettable) uncertainty.”43 on the other hand, one should refer to farnsworth, an american scholar, to understand the fears of the common lawyers, when the cisg 1980 would have to be implemented in the uk and ireland. farnsworth, commenting on the remedial provisions of the cisg 1980 that were in principle “foreign” to us law, once said quite colourfully: “fundamental breach -ok, but strange; nachfrist – we don’t understand it, we never heard of it, but we like it; price reduction44 -we don’t understand it, and we don’t like it; 43 benjamin’s sale of goods, (sweet & maxwell, 4th edition), at [ix] [hereinafter benjamin]. 44 farnsworth refers here to what the civilian lawyers would most probably know and refer to as action quanti minoris. the denning law journal 56 specific performance – we hope your courts45 will not resort to it as much as the may.”46 the most dismissive view on the adoption of the cisg 1980, however, has come from professor treitel: “…the convention…does not specifically deal with standard types of overseas sales (such as cif or fob contracts) while at the same time [it lays] down general rules which if applied to such contracts, would produce one of two effects. they would either produce results significantly different from those produced by the present english rules governing such sales, or (because of the lack of precision with which the convention is drafted) cause considerable uncertainty in areas in which the present rules of english law lead to clear and easily predictable results.”47 however, there have been also voices in favour of the adoption of the cisg 1980 mainly for reasons of practicability and world uniformity in the area of the international sales of goods; the leading scholars on this have been professors reynolds and nicholas. nicholas represented the uk in the drafting of the convention. after many years, he commented that the reception by legal and commercial circles in the uk was at best mixed.48 reynolds too has been of the opinion as one of the editors of benjamin that the uk should adopt the cisg “as soon as possible”.49 in clearly practical matters of implementation, both the uk and ireland would not have to be concerned with whether the cisg 1980 would override the current status quo of their international trade rules. this should be the case for a good reason: under article 6 cisg 1980 the contracting parties from different states may well exclude the application of the cisg or derogate or vary its 45 that is the civilian courts when applying the cisg. 46 supra at n 46. 47 benjamin at 18-004. 48 nicholas b, “the united kingdom and the vienna sales convention: another case of splendid isolation” (march 1993) centro di studi e ricerche di diritto comparato e straniero diretto da mj bonell. 49 professor reynolds expressed this view in “a note of caution” in the frontiers of liability, vol 2, (p birks ed, oup, 1994). reynolds signified a number of concerns about certain aspects of the convention, however, his final point of view was that the uk should ratify the convention. the denning law journal 57 effect.50 in effect, article 6 cisg 1980 empowers the parties to use the cisg 1980 à la carte. even more importantly, the convention makes allowance for considerable derogations, since for instance the contracting states may exclude considerable parts of it such as part ii (formation of an international contract of sale) or part iii (substantive rules) of the convention as in article 92 (1) cisg 1980. however, if the uk and ireland were ever to attempt to implement the “fullpackage” of the cisg 1980 then this would amount to a clear legal anacatataxis, for the international trade lawyers of these two countries would have to think of international contracts for the sale of goods in a fundamentally different way than at present, that is in cisg 1980 terms. further, there are additional reasons for such a legal anacatataxis. first of all, the fact that there is such reluctance to ratify the convention should be a reason that proves the point of anacatataxis. international trade law in the uk and ireland would never be the same. furthermore, if the trade law of a country is divided into three: domestic trade transactions rules; domestic trade transactions vis-à-vis consumers rules and international trade transactions rules, then it would not be an exaggeration to say that good faith is now fully introduced in the anglo-irish legal system in trade transactions vis-à-vis consumers. thus, even if pure common law is abortive of notions of good faith, it would seem that the reluctance of the anglo-irish legal system to the notion of good faith is clearly on the retreat in relation to consumer contracts post council directive 93/13/eec. in connection with this and for the purposes of the cisg 1980 implementation to the international trade law branch of the anglo-irish legal system it would be essential that a limited notion of good faith be introduced. this, of course, would have to be the case only where a trader from the uk for instance would accept the effect of the cisg for a contract for the sale of goods with an overseas trader, e.g. one from france. additionally, it would not be necessary for the two legal systems that would ratify the cisg 1980 to alter the domestic character of their trade laws; this would mean that it would be “business as usual” for trade transactions within the uk and ireland. therefore, if the traders, academics51 and judges52 from the uk and ireland do 50 article 6 cisg 1980 stipulates as follows: “the parties may exclude the application of this convention or, subject to article 12, derogate from or vary the effect of any of its provisions.” 51 professor bridge in “does anglo-canadian law need a doctrine of good faith?”, canadian business law journal (1984) referred to the american legal system, which has recognised the notion of good faith to the performance and enforcement of the trade transaction as in article 2-205 uniform commercial code. still he underlined that it would be “an abuse of the comparative method”, if a principle of good faith would be introduced in the english and the canadian legal system. teubner too in “legal irritants: the denning law journal 58 not want by reason of legal certainty the concept of good faith to be introduced in their domestic trade transactions within their legal systems, this should be respected. however, even this last point is arguable by operation of ss. 15a and 30 (2a) of the british sogsa 1979 (as amended) which deal with the notion of “unreasonableness”. one would be able to present this as the closest statutory approach of british trade law to a creeping form of good faith in the international trade laws of the uk. unreasonableness could be the trojan horse of good faith, in order for the latter to enter the international trade law branch of the british and irish legal systems. accordingly, article 7 (1) could be accepted by the common lawyers in ireland and the uk. in any such case the creeping character of good faith as in the form of unreasonableness, would become a clearcut introduction of good faith, be it in the international branches of the trade laws of the uk and ireland. this too should arguably amount to an anacatataxis. (a) breach of term of conformity of goods another point relating to the potential implementation of cisg 1980 is breach of the term of conformity of goods. since the meaning of “particular purpose” would have to be aligned with that of the cisg 1980, then the interpretation of the common law would be confined to trade transactions either within the respective legal systems or where the parties have so agreed in international contracts. the domestic interpretation of “particular purpose” could still remain as it is in preist v last.53 once again the new meaning would be applied on a “voluntary” basis to international contracts, whilst the traditional interpretation of the common law would at least operate within the domestic trade transactions of the uk and the irish legal system. 54 (b) anticipatory breach a further reason why the cisg 1980 would result in a legal anacatataxis is that it would bring a substantially different approach on the question of anticipatory breach, which would have to be fully recognised. the partial good faith in british law”, modern law review (1998) has recently expressed his objections on the full introduction of good faith in british law. his conclusion has been that such an introduction would cause many problems. 52 for instance, in walform v miles [1992] 2 ac 128 at 138 lord ackner has famously said that: “…the concept of a duty to carry on negotiations in good faith is inherently repugnant…[and] unworkable in practice as it is inherently inconsistent with the position of a negotiating party.” 53 [1903] 2 kb 148. 54 that is when the parties have so intended. the denning law journal 59 recognition of the notion in s.28 of the british sogsa 1979 (as amended) and s.28 of the irish sogsa 1893 (as amended) should be extended to give full recognition to cases of anticipatory breach and in particular to such cases of anticipatory breach that are not currently recognised by the above acts. the anglo-irish legislator could either choose to extend the current provisions on anticipatory breach of their sale of goods acts or allow for a parallel system of law under a potential cisg act that would recognise an extended version on anticipatory breach for international contracts under the cisg 1980. (c) fundamental breach moreover, an additional reason for which an anacatataxis would be a strong possibility with the implementation of the cisg 1980, would be the fact that international trade lawyers from the uk and ireland would have to come to terms with the rather peculiar and onerous notion of “fundamental breach”. indeed, this would be one of the most difficult occurrences of alignment of any potential cisg 1980 implementation in the uk and ireland. however, since the cisg 1980 upholds the notion of the “autonomy of the parties” the parties may well exclude its application altogether. if they include it in the contractual arrangement, then the common lawyers of the uk and the ireland would most probably have to consult their counterparts over in the usa, for the usa is the best example of a common law system, in which the cisg 1980 has operated well. as already mentioned, “unreasonableness” is the notion that could well be the starting point not only for the partial introduction of good faith in the international trade law aspects of the common laws of the uk and ireland but also for the comprehension of the notion of fundamental breach in the cisg 1980. this would be particularly helpful, since common lawyers would see the rationale behind the existence of this notion in the cisg 1980 and this would most importantly help their understanding on practical matters too, when they would have to comprehend and tackle cases on good faith matters in every day practice. in conjunction with fundamental breach, common lawyers in the uk and ireland would have to come to terms with the novel legal device of nachfrist,55 a mechanism that -if properly utilisedmay give a new lease of life to the international transaction in question. in any case, it would be more than helpful for common lawyers in these countries to have a closer look at how their counterparts in other common law jurisdictions that have ratified the convention and accepted this notion such as the usa, canada and australia. additionally, it would also be advisable that the german commercial law be looked at from british and irish business lawyers, for them to have information from the very 55 that is novel for the cisg itself but not so novel for the german trade law system, from which it derives. the denning law journal 60 “birthplace” of the notion, since nachfrist remains undeniably a german legal “invention”. (d) cure of defective goods and documents as regards cure of defective goods and documents, the cisg 1980 is clearly more “pro-contractual” than the common law rules, as this has already been suggested above. this per se should amount to an anacatataxis, if the cisg 1980 would be ever introduced in the uk and ireland. common law, on the other hand, remains strict to the extreme in relation to the legal results expected and in this way the contractus56 under it remains ascertained to the extreme too. common law is, therefore, a rather more predictable legal species, when it comes to international trade law. otherwise, than that, in the case where the cisg 1980 would be chosen to operate in a international contract, then the traders in ireland and the uk would have to appreciate that the cisg 1980 is more lenient than the current common law rules and that it makes considerable allowances for the cure of defective goods as well as of documents. in this case an anacatataxis would be a matter of adjustment of legal mentality; that is, common lawyers would find themselves in a substantially different environment of legal technique. further relevant sale of goods acts of both countries in question should perhaps be susceptible to slight amendments or rather to provisions that would make it clear that in case the cisg 1980 would be adopted for the conclusion of an international sale, this would allow the parties to use the full machinery of the cisg 1980 (if they so intend) and therefore be able to cure both defective goods and documents. (e) inconsistent act doctrine as regards the inconsistent act doctrine, which is explicitly recognised under s. 35 (1) (b) of the british sogsa 1979 (as amended) and s. 3557 of the irish sogsa 1893 (as amended), there are three possibilities on how this characteristic would have to be “watered down” for the cisg 1980 to be successfully implemented. an anacatataxis in such a case would occur either if the national legislators of the uk and ireland would omit the above sections and thus render this doctrine obsolete or even more interestingly if they would allow these sections to continue to operate as well as recognising the mechanics of the cisg 1980 by statutory amendment on the matter or allow the preservation of the above sections but give a sufficient margin of choice to the traders to choose the mechanics of their contract by recognising their autonomy to choose the 56 supra n 35. 57 as amended by the sogsasosa 1980. the denning law journal 61 appropriate legal environment for their international contracts. in this latter case the national legislator of either country would save himself from legislating anew on his sale of goods act,58 whereas it would seem that such a legislator would provide a better, less regulated environment for the traders to have the final say on the way they wish to conduct their business. this of course would be a partial revival of lex mercatoria in one sense, because it is the traders that should know trade best and it is they, who should be able freely to decide the legal tactics of conducting it. (f) quantification of damages a similar pattern of law reform could be followed in relation to the quantification of damages. again there are three paths that could be followed in relation s. 53 (3) of the british sogsa 1979 (as amended) and s.53 (5) of the irish sogsa 1893; either repeal these clauses altogether, which is not suggested, however, since they have served well so far or draw a parallel provision to the existing sections or simply incorporate a freedom of choice of law clause in a potential cisg act. the latter possibility is again seen as the least detrimental to the well-functioning of the legal system. this is so, because even though a legal anacatataxis would still be the legal result of such an act, this would not bring disorder to the existing practices. (g) frustration on the question of frustration as professor bridge suggests59 british law and most probably irish law too would necessitate changes to face questions of partial or temporary frustration. this would have to be the case whether or not the cisg 1980 would be implemented. however, it would be a good starting point for the legislator to take into account the cisg 1980 solutions on this as well as the american legal techniques on the matter, from which the cisg 1980 is 58 however, one would be able to speculate that the introduction of the cisg 1980 in the international subject areas of british and irish trade laws would be introduced with a new piece of legislation in the exoteric form of the human rights act 1998. this would mean that new legislation would be brought about; however, this would take a significant amount of time to be fully enforced, since for example the alignment of the whole british legislation with the european convention on human rights 1950 took a period of two years until october 2, when the human rights act 1998 came into force. similarly, the partial alignment of british and irish trade laws with the cisg would take a significant amount of time, even if the traders themselves would not be bound to choose any particular law by way of autonomy of the parties: that is cisg or non-cisg (fob, cif and their variables). 59 supra at n 43. the denning law journal 62 largely inspired. an additional point is that in any case the legislators of the uk and ireland would have to examine carefully the application of the cisg 1980 in their “close relative” systems such as the australian, the canadian and the american one. conclusions firstly, the cisg 1980 remains a dynamic international trade law instrument with all its drawbacks.60 it should be able to accommodate the peculiar features of the british and the irish legal systems and be accommodated within them.61 secondly, these two legal systems have the potential to fully implement the cisg 1980 without significant practical difficulties as long as very careful statutory drafting in relation to the cisg 1980 is carried out. thirdly, any such implementation would bring a major legal anacatataxis to the current status quo of the international branches of the trade laws of the uk and ireland. fourthly, the traders themselves would be free to choose between the application of the cisg 1980 or the “old traditional” rules of the common law of ireland and the uk. whether they would choose the more than a century well established precedents on fob and cif contracts or the rather more globalised and internationally accepted cisg 1980, the ultimate choice would obviously be theirs. whether the cisg 1980 is a lingua franca or merely an esperanto of international trade law, this instrument of law remains the closest solution to a common set of principles for a globalised commercial law. the rather insular attitude of the united kingdom and ireland to the harmonization phenomenon is regrettable, whilst the anacacataxis that these systems should face in a potential case of implementation of the cisg 1980 should not be a reason that holds these systems back from ratifying the cisg 1980. 60 on a balanced view in relation to the objections to the cisg one should read the article by steyn “a kind of esperanto?” in p birks (ed) the frontiers of liability (oxford oup, 1994). 61 see the law commission’s (uk) memorandum submitted to the department of trade and industry on 30 october 1989. introduction a plethora of differences between common trade law and the cisg 1980: a plethora of comparisons an insignificant number of similarities between common trade law and the cisg or concessions that the cisg makes to common law systems the impact of the cisg 1980: an anacatataxis rather than a trivial matter of implementation due to the plethora of differences to be overridden conclusions two kinds of justice: human and devine the denning law journal 173 the denning law journal 2008 vol 20 pp 173-183 student article civil law jurisdictions and the english trust idea: lost in translation? james sheedy∗ abstract this piece is a short discussion on the english; and more widely the common law concept of the trust and its traditional exclusion from civil law systems. it seeks to unearth that the apparent distaste civil law systems have for the common law trust is rooted in each system’s respective attitude to rights in property and at least some degree of mistranslation. this apparent gulf in understanding can be bridged by incorporating the trust into the more ancient roman law concept of the patrimony, thereby making the trust sit more comfortably in civil law jurisdictions. in bridging the divide, this new appreciation for the trust challenges us as common lawyers to reconsider the traditional common law premise of the trust as being less about proprietary interest as it is about personal rights and obligations. introduction the legal historian and renowned comparative jurist frederic maitland, (b 1850-d 1906) keenly espoused the trust as england’s greatest export to the body of legal theory: “if we were asked what is the greatest and most distinctive achievement performed by englishmen in the field of jurisprudence i cannot think we should have any better answer to give than this, namely the development from century to century of the trust idea.”1 there can be little doubt the trust has proved an incredibly versatile instrument spreading throughout the common law world from a means to protect family estates and assets into banking, commerce, charities and even ∗ llb (hons) (exon), bvc student at bpp law school, london. student member of lincoln's inn. hardwicke and sir thomas more scholar and member of the denning society, lincoln’s inn. 1 f w maitland selected essays hazeltine, lapsley and winfield (eds) (cambridge: cambridge university press, 1936) p 129. civil law jurisdictions and the english trust idea: lost in translation? 174 public and administrative law.2 the focus of this piece turns on maitland’s characterisation of the trust as an english concept; particularly how valuable such a characterisation is and how readily the trust can been embraced by civil law systems, which do not share in england’s common law heritage. if the trust is so extraordinary, why has its development been so limited among civilian jurisdictions?3 the trust in the civil and common law tradition there is no universally agreed definition of a trust only a number of distinctive characteristics such as the splitting of property into legal and equitable or beneficial ownership, and the duty of the trustee to hold and manage the property in accordance with the rules established in a trust for the benefit of the beneficiaries.4 maitland attributes the development of the ‘trust idea’ to the ingenuity of englishmen and their development of the common law.5 this fixation with the englishness of the trust, while patriotic, has inhibited its exploration and adoption among civil jurists. those factors which in england and other common law countries, we associate to be a vital to the understanding of the trust, for example its presupposed connection with the law of property and equity,6 can perhaps act as a barrier to better conceptual understanding. while the trust traces its origins to the ‘use’ in the medieval court of chancery, we may be better able to understand the essence of the trust concept by divorcing it from its historical context that has perhaps conditioned our perceptions of what a trust must be. cloaking the trust in its english historical context hinders our understanding of it in terms of rights, relationships and duties. in short, this piece focuses less about what the trust concept is, but how the trust concept can be better understood. maitland’s enthusiasm fails to appreciate that the trust is hampered in its development by the premise that it is a product of the common law tradition, the law/equity duality which is otherwise mysterious to civilian legal 2 p lepaulle “si l’on demande à quoi sert le trust, on peut presque répondre: ‘à tout’.” [‘what is the trust used for? almost everything’] traité théorique et pratique des trusts in droit interne, en droit fiscal et en droit international (paris: rousseau et cie, 1932) p 12. 3 p lepaulle “trusts and the civil law” (1933) 15 1 journal of comparative legislation and international law 18. 4 halsbury’s laws of england, vol 48 (2007 reissue) trusts. 5 f h lawson a common lawyer looks at the civil law university of michigan law school lectures (1953) 201, and b rudden “things as things and things as wealth” (1994) 14 oxford journal of legal studies 806. 6 g l gretton “trusts without equity” (2000) 49(3) the international comparative law quarterly 599. the denning law journal 175 systems.7 the trust does not have to be conceptualised within the framework of english law: “the orthodox explanation, given in terms of the tradition distinction between law and equity, provides only a historical and not a rational account of the trust.”8 in précis, the law of trusts, as understood by common lawyers, is an offshoot of the law of property, whereby ownership is divided.9 this (traditionally english) analysis founders in legal systems that do not recognise split ownership of property. a major semantic gulf opens up when we talk about trusts as part of the law of property, which cascades into problems with the identification, status and function of the trustee and the tripartite relationship between the trustee, the settlor and the beneficiary which are worthy of better explication for sake of clarity, both for ourselves and civil jurisdictions. the french jurist pierre lepaulle states, “[. . .] it is impossible to translate the rights of the trustee into those of an ‘owner’ in our [ie french or more widely civilian] conception of property. he has neither usus nor fructus nor abusus.”10 the civil law methodology is to regard the ownership of property as carrying both inseparable rights and obligations. (see the discussion of the patrimony below) civilians regard the separation of benefit and liability in property (seen in the english trust by the division between legal and equitable title) as difficult, even ideologically objectionable.11 apparent is the deeply held intellectual difference between english and civilian property ownership. the english approach to property has historically been as a means to greater personal freedom for the individual, while the civilian approach sees property ownership as carrying innate and inalienable responsibilities towards the community at large.12 this is most patent with regard to french and german 7 g l gretton, ibid, at 600 “the…reason why trust have proved so problematic for the comparatist is that there is a widespread belief that they are a special product of the common law tradition and, in particular, or its law/equity duality, and thus intrinsically mysterious to the civilian tradition.” 8 b rudden, above n 5, at 89. 9 abdul hameed sitti kadija v de saram [1946] 208 (ceylon) at 217 pc “…the distinction between the legal and equitable estate is the essence of the trust.” 10 “il est…impossible de traduire les droits du trustee comme étant ceux d’un ‘propriétaire’ dans notre conception de la propriété. le trustee n’a ni l’usus…ni le fructus ni l’abusus.” p lapaulle, revue internationale de droit comparé vol 7 (1955) 318, at 319. usus, fructus and abusus were in the ius commune taken as the essence of ownership. 11 f h lawson, above n 5, at 201 “perhaps the greatest difficulty the civilians have in accepting the trust is caused by what i have come to regard as an english peculiarity logically detachable from the trust, the distinction between legal and equitable estates.” 12 v bolgar “why no trusts in civil law?” (1953) 2 american journal of comparative law 204 at 210: “the…basic obstacle to acceptance of the trust [in legal civil law jurisdictions and the english trust idea: lost in translation? 176 notions of corporate social responsibility, placing a strong emphasis on the company as a social rather than purely economic enterprise.13 however, it is conceded that this contrast (particularly with respect to corporate social responsibility) may diminish with the advent of the new codified director’s duty provisions in companies act 2006.14 by comparison, the english trust allows separation of the responsibility of property ownership (liability) from its enjoyment. the origins of the trust have long been disputed but separation has proved a useful means to circumvent historical traps to greater personal liberty through the ownership of property, the principle modern example being taxation on capital gains, property and inheritance.15 moving on to divorce the trust from its socioeconomic context we discover that the fundamentals of the trust mechanism have very little to do with the world of property but are in fact a very sophisticated arrangement of personal rights and duties between various parties; the settler/testator, the trustee, the beneficiary and any outside third party. respective analysis of the trust in terms of personal rights rather than property rights is the great misunderstanding between civilians and common lawyers. a hangover from the trust’s proprietary (english) trappings is the description attached to respective rights as either ‘rights in rem’ (property rights) or ‘rights in personam’ (personal rights). there is no direct translation between the common law ‘rem’ and civilian ‘real rights’,16 neither is there a correlative division between proprietary and personal remedies so in comparing the two systems simple mistranslation has been a serious obstacle to wider adoption of the trust concept. rights against the trustee can be both proprietary and personal, an action for damages for breach of trust being the obvious example. it will be a very unusual circumstance for a trustee to have divested himself of trust property and remain a trustee. such a scenario would be, where the trustee has allowed trust property to diminish to nil value or has passed it to an ‘equities darling’ for a insignificant value to which the beneficial interest then attaches. (in either case, it is still arguable that the trustee is vested with trust property, just not valuable property). systems with a civilian property law] is the concept of autonomous and indivisible ownership.” 13 m yavisi “shareholding and board structures of german and uk companies” (2001) 22 2 company lawyer. 14 “duty to promote the success of the company”’ companies act 2006, s 172. note the expanded list of the key ‘stakeholder’ groups. 15 vandervell v irc [1967] 2 ac 291, re vandervell’s trusts (no 2) [1974] ch 100, see also j langbein “the contractarian basis of the law of trusts” (1995) 105 yale law journal 625 for a discussion as to the origin of the trust. 16 webb v webb [1994] 3 all er 911 (ecj case no c-294/92). the denning law journal 177 a trustee then is always personally liable, whether vested with property or not and if explaining to a civilian jurist, that in either case, the beneficiary will always have a personal action against a trustee, whether he is vested with property or not, the distinction between proprietary and personal remedies becomes otiose. the trust as patrimony a solution that would perhaps level the semantic differences would be to view the trust idea through the concept of the patrimony, looking not to property law’s rem/personam taxonomy, but to the general totality of a person’s assets and liabilities to better understand the trust.17 the patrimony is a remnant from the roman law patrimonium but was later readopted and developed in the 19th century by civilian jurists. the patrimony is a figurative ‘bag’ of freestanding legal relationships attaching to an individual having two parts conjoined together; both assets and liabilities. the appropriate visualisation would be of a man carrying a bag of shopping, all the assets and liabilities in the bag belong to him. now imagine the man in addition to carrying his shopping is also carrying the shopping bag of someone else in his other hand. although he carries the second bag with him, its contents are not his entitlement but are freestanding. the patrimony model is useful to better understand the trust idea because it does not equate ‘what i have’ with ‘what i own,’ all my rights are mine but not all rights are rights of ownership. the trust is a special patrimony, where assets and liabilities are a separate ‘bag’ of assets and liabilities segregated from the trustee’s personal patrimony. the rights of the beneficiary are personal against the trustee and enforceable against the special patrimony. this avoids the need to classify the beneficiaries’ rights as real (ie as against the trustees’ creditors) as the duality of ownership is actually duality of patrimony. this also goes to explain why the trust will not fail for want of a trustee, as his patrimony will survive him if he parts with it.18 the patrimony model has resonance with the hohfeldian analysis of rights and correlative duties.19 the patrimony is entirely personal, negating the need 17 “…due to a particular construction of the french civil code it has often been considered in civil law countries that each person has…only one patrimony.” m grimaldi and f barrière, in a hartkamp (ed), towards a european civil code (netherlands: kluwer law international, 2nd edn, 1998) at 578. 18 p lepaulle, above n 3 at 20 “the res must be composed of rights…so a trust can be formed only with rights which can be disconnected from the person, moreover the res is in fact disconnected from any person forming neither part of the assets of the trustee or the cestui.” 19 w n hohfeld “fundamental legal conceptions as applied in judicial reasoning” (1917) 26 yale law journal 710. civil law jurisdictions and the english trust idea: lost in translation? 178 to consider hohfeld’s second category of jural relationship the privilege/noright correlative. while the second category might ordinarily seem to apply to liberties in the context of constitutionally guaranteed freedom from interference, the privilege/no-right correlative can also be construed as a right in rem, being good against the world at large. the english mistaken premise lies in the inability to analyse the trust in a way not rooted in our own historical perceptions, treating the trust as an exclusively english peculiarity using the quintessentially english tools, of law and equity, rights in rem and in personam.20 using the patrimony, a right in rem is ‘proprietary’ only as shorthand to say it is personally enforceable against the world of people who may try to interfere with an asset. it is not one right in rem but an aggregate of many rights in personam.21 a right in personam (in which equity operates) is a narrower collection of claims, not against the whole world but against a more limited class of persons. rights in rem or personam are essentially respectively larger or smaller bunches of personal claim rights, further underlining the idea that a trust idea rooted in property or real rights is an artificial hindrance to civilian understanding. the trust as a contract viewing the trust as patrimony (essentially personal) and not proprietary allows it to fit more easily into civilian understanding, having much greater applicability to the law of obligations than property, the law of obligations being personal. this is not a new idea, having already been advanced by honoré22 and hayton23 but serves to underline the gulf between common law and civilian understanding of the trust as semantic only. this dissection of the trust as ‘personal’ has been developed among common law (particularly american) jurists into a discussion as to whether the trust is actually a specialised form of contract.24 the notion of the trust as a contract or promise is most patent in the many 19th century cases concerning the failed settlement of trust property. it has long been the maxim that equity will not assist a volunteer, so a beneficiary must provide consideration or have privity as a party to the covenant to be 20 t b smith, international encyclopaedia of comparative law vol 6 ch 2, para 262. “though the english do not lay exclusive claim to discovering god, they do claim to have invented the trust with two natures in one.” 21 j langbein above n 15, p 636 ‘tracking the common law estates.’ 22 “obstacles to the reception of trust law? the examples of south africa and scotland” in a m rabello (ed) aequitas and equity: equity in civil law and mixed jurisdictions (jerusalem, 1997) 792, at 812. 23 d hayton principles of european trust law (aspen publishers inc, us, 1999). 24 j langbein, above n 15. the denning law journal 179 able to enforce the trust personally or through the trustee.25 as in contract, the wronged party may seek redress by way of damages at common law or specific performance. however, the contractual parallels diverge where the beneficiary is the issue of marriage consideration. here the only remedy will be to seek specific performance in equity rather than damages. the trust’s development as a legal institution and structure, despite its trappings in the corpus of english property law, is innately about personal relationships between settler, trustee and beneficiary which make it readily analysable using hohfeldian and civilian contractual terminology.26 even the traditional english features of a contractual relationship are easily recognisable using a ‘personal’ analysis; for example consensual formation, wide independence over the terms and evidencing a common intention or consensus between the parties, such analysis is easily translated into the establishment and governance of modern trusts. even maitland’s own analysis was to regard the trust as a ‘bargain’ rather than as proprietary.27 the english emphasis in determining trust disputes is to look to the intention of the settler to establish the meaning of the arrangement, an approach with strong contractual parallels. if the trust is a bargain, then the certainty of the terms on which the bargain is reached becomes key. lord bridge firmly held that any agreement found solely upon an inference drawn from the way the parties conducted their personal affairs and relationships was not worthy of the title: “the first and fundamental question [. . .] is whether, independently of any inference to be drawn from the conduct of the parties in the course of sharing the house as their home and managing their joint affairs, there has [. . .] been any agreement, arrangement or understanding reached between them that the property is to be shared beneficially. the finding of an agreement or arrangement to share in this sense can only, i think, be based on evidence of express discussions between the partners, however imperfectly remembered and however imprecise their terms may have been.” 28 25 re plumptre’s marriage settlement [1910] 1 ch 609. 26 f h lawson above n 5, at 200“the tree-cornered relation of settler, trustee and [beneficiary]…is easily explained in the modern law in terms of a contract for the benefit of a third party.” 27 f maitland “equity, a course of lectures” (john brunyate rev ed 2d ed 1936) at p 29). “[…]the trust[…]originates in agreement….[m]en ought to fulfil their promises, their agreements; and they ought to be compelled to do so…[t]he chancellor begins to enforce a personal right, a jus in personam, not a real right, a jus in rem – he begins to enforce a right which in truth is a contractual right, a right created by a promise.” 28 lloyds bank v rossett [1991] 1 ac 107. civil law jurisdictions and the english trust idea: lost in translation? 180 in express provisions both inter vivos and testamentary trusts can easily be analysed as elaborate contractual arrangements between settler and trustee to hold property for the rights of a third part (the beneficiary). the duration of the trust, maybe spanning several generations makes the drafting of a detailed contract inappropriate. the gaps are filled by terms requiring good faith, loyalty and prudence on the part of the trustee in the performance of his duties.29 millet lj however, while not accepting the trustee’s core obligations include the duties of skill and care, prudence and diligence, did identified an irreducible core of duties to “[. . .]perform the trusts honestly and in good faith for the benefit of the beneficiaries [as being] the minimum necessary to give substance to the trust, but in my opinion it is sufficient.”30 the resulting trust can be treated in a similar way without difficulty as resulting trusts are simply ‘founded’ on the basis of an intention (or lack of intention) on the part of the settler to fully divest themselves of all the interest in the trust property.31 a contractual analysis of the constructive trust is perhaps more difficult because the constructive or ‘implied trust’, as it is sometimes called, has a remedial quality that sets it apart conceptually from the resulting and express trust. the arguments between academics about whether the constructive trust is a court imposed remedy or the result of an implied (but otherwise hidden) intention between the parties are well rehearsed and have not definitively been laid to rest. the accusation that the constructive trust is actually a remedy and not a trust proper has a stronger resonance when we consider a number of the cohabitation disputes over trusts of land.32 it is in the cohabitation cases of the later 20th century especially where we see the most apparent tension between the traditional, flexible role of equity to do best justice between the parties and the need for certainty and predictability which has long been the desired policy of the law of real property. after what might be described as a period of judicial fence sitting as exactly how to deal with these cases and the concerted efforts of the late denning lj, who, among his peers, seemed the most happy to play fast and loose with the ‘remedial’ constructive trust to affect an equitable outcome;33 the english approach now 29 f easterbrook & d fischel, “contract and fiduciary duty”, 36 jl & econ 425-438 (1993) “[a] fiduciary relation is a contractual one characterised by unusually high costs of specification and monitoring. the duty of the loyalty replaces detailed contractual terms[…]” 30 armitage v nurse [1998] ch 241 at 254. 31 standing v bowring (1885) 31 ch d 282 (per lindley lj at 289). 32 for examples of the constructive trust used as a general equitable remedy see gissing v gissing [1971] ac 886, eves v eves [1975] 1 wlr 1338 and grant v edwards [1986] ch 638. 33 hussey v palmer [1972] 1 wlr 1286 (per lord denning mr at 1289). the denning law journal 181 appears to be to shoehorn the otherwise remedial character of a constructive trust into terms of an implied agreement to a trust relationship.34 in arguably the most important recent decision on residential constructive trusts,35 both lady hale (for the majority) and lord neuberger (dissenting) make common intention rather than ‘fairness’ the appropriate yardstick to ascertain beneficial entitlement.36 however, their respective methodologies still differ between the majority’s holistic approach37 and the more austere measure of intention evidenced by the parties’ financial contribution. as a matter of practice, while the court’s agreement on intention, as the appropriate measure is to be welcomed, the majority’s approach to ascertain intention remains unsatisfactory, being nebulous and lacking in certainty. that said, an intention or contractual based analysis of the constructive trust equips us to make better sense of its place among established categories of trust mechanism, laying to rest what would otherwise appear to be the constructive trusts status as the fifth column. opposition to the trust as a contract the varied objections to a contractual analysis of the trust38 include raising conceptual hurdles in translating a tripartite trust arrangement into bilateral privity of contract. if the trust is contractual, how can it make third parties liable to proprietary remedies of tracing and how can a unilateral declaration of trust possibly be squeezed into our understanding of a contract? at the time of his writings, austin scott’s critique of the trust as a contract using the trust tripartite structure had weight especially against english privity rule. scott’s objection has now been neutralised with respect to trust, by statutory intervention in the shape of the contract rights of third parties act 1999 although the principle has long been recognised in the united states.39 34 lloyds bank v rossett [1991] 1 ac 107. 35 stack v dowden [2007] 2 ac 432. 36 ibid, at para 144 (per lord neuberger) and paragraph 60 (per lady hale)“the search is to ascertain the parties’ shared intentions, actual, inferred or imputed, with respect to the property in the light of their whole course of conduct in relation to it [the jointly owned cohabitant home].” 37ibid paragraph 69 (per lady hale). note also at paragraph 70 that the checklist of factors the court may consider is non-exhaustive and akin to those in matrimonial causes act 1973, s 25 providing a backdoor by which amorphous considerations of fairness can still linger. 38 a scott “the nature of the rights of the cestui que trust” (1971) 17 colum l rev 269. 39 lawrence v fox 20 ny 268 (1859) “the duty of the trustee to pay the [beneficiaries], according to the terms of the trust, implies a promise to the latter to do so.” civil law jurisdictions and the english trust idea: lost in translation? 182 further, scott mistakenly makes his tracing argument against the contractual nature of the trust by presuming that trusts are about property and not personal right and obligations, however this has already been dealt with above as not being fundamental to our understanding of the trust concept.40 further still, a proprietary (tracing) remedy can be interpreted as simply a means to affect a personal action for recovery of trust property from its current holder, simply seeking out first who to claim from and not providing an end in itself (its restoration).41 other contractual parallels can be seen in relation to trustee exemption clauses on which millet lj supplied valuable guidance.42 as with the law of contract there was no rule precluding the exclusion of liability, including gross negligence, save that no exclusion can be made for dishonesty. in a later case43 it was argued that, trust clauses should have parity with the law of contract and should be construed more stringently against the party who made the document. however, millett lj remarked that while in a contractual setting this is appropriate because the party relying on the clause will typically be the party who has drafted the document, that approach is not so appropriate in the trust setting where the clause is the work of the testator. millett lj held that since trustees accept office on the terms of a document for which they are not responsible they are entitled to have the protection of having the document fairly construed according the natural meaning of the words used and not restrictively. however, a paradox then arises (if the trust is also a contract with the beneficiary) meaning that upholding such a clause diminishes the rights of a beneficiary from suing trustees when they too have not had the chance to contribute to the terms when the trust deed was drafted. it is conceded that a unilateral declaration of trust defies common law bipartisan contractual analysis but can perhaps be rescued if scrutinised again through the special patrimony. the special patrimony of a trust situation, with 40 e weinrib “the fiduciary obligation” (1975) 25 u toronto lj 10, at 120 “[p]roperty is itself merely the label for that crystalised bundle of economic interests which the law deems worthy of protection…affixing the label of property constitutes a conclusion not a reason. the difficulty is not to supply a label but to identify the protected interest.” 41 h stone “the nature of the rights of the cestui que trust” (1917) 17 colum l rev 467, at 477 “the real reason for the liability of the third party is the unconscientious interference with the right in personam which the [beneficiary] has against the trustee, and not any right in rem against the asset.” 42 armitage v nurse [1998] ch 241 at 254 “it is, of course, far too late to suggest that the exclusion in a contract of liability for ordinary negligence or want of care is contrary to public policy. what is true of a contract must be equally true of a settlement.” 43 bogg v raper (1998/99) 1 international trusts & estates law reports 267. the denning law journal 183 seeming duality in ‘ownership’ means that as a body of rights and liabilities it is freestanding, disconnected from any person, forming neither the property of the trustee nor of beneficiary. instead of being crystallised around an individual or legal entity, in whose favour the court may decree performance, it owes its existence to the end to which it is devoted: its appropriation. the instance of a unilateral declaration of trust is the settler transferring personal property to a special patrimony for an end to which the court is objectively able to determine. in this way, a freestanding patrimonium not vested in anyone but with a particular appropriation, facilitates a working civil law understanding of charities and private purpose trusts of imperfect obligation, with no discernable beneficiary, without need for reference to a common law contract or property construct. conclusion what is the purpose or value in analysing the english trust concept in such minutiae? the history of the trust idea has shown it is expansive; it has already spread throughout the common law world from the ‘use’ in the english court of chancery. there is clearly no singular governing trust concept that finds application across all jurisdictions, whether between common and civil law or inter-common law. as capital markets pay less and less attention to geographical boundaries, trusts are being exported to jurisdictions (particularly civil ones) that have historically been unable to understand their conceptual underpinning. thus is becomes vital to circumvent the trust as a ‘unique english institution’44 and any necessary connection with equity which has historically proved a barrier to its wider adoption and better understanding,45 maitland may have been right; the trust is an extraordinary legal concept but long gone are the days of claims of its exclusive englishness. new ideas about how to conceptualise the trust are being reverberated back into the traditional common law understanding from inroads made into civil law jurisprudence. the trust idea has broken moulds in its application; it is ironic that perhaps the english trust idea is itself a mould ready to be cracked open. 44 preamble to the hague convention on the law applicable to trusts and on their recognition (1985) “. . . the trust as developed in courts of equity in common law jurisdictions and adopted with some modifications in other jurisdictions, is a unique legal institution.” 45 g l gretton, above n 6, at 601 “the trust does not have to be conceptualised within the framework of english law. the trust presupposes neither equity nor divided ownership.” conditional payments and insolvencythe quistclose trust gerard mccormack* it is axiomatic that assets which form the subject-matter of a trust do not constitute part of the property of an insolvent available for distribution among the insolvent's creditors. persons responsible for administering the affairs of insolvents take the property of the insolvent subject to equities. one such equity that must be recognised and upheld is the interests of beneficiaries under a trust where the insolvent holds the bare legal title. in this article the applicability of the doctrine oftrusts in the realm of conditional payments will be considerd. if a lender lends money on condition that it is used for a particular purpose and/or paid back out of a particular fund, or if a purchaser pays in advance on condition that the money is used to provide something he wants, to what extent can the lender or payer enforce the conditional agreement?1 there is something of an analogy with prepayments in sale of goods situations. it is possible for a seller of goods to retain title to the goods notwithstanding delivery of the goods to the buyer until the goods have been paid for or some other condition has been fulfilled. conditional loans or payments are usually discussed under the rubric of the quistclose trust and it is perhaps convenient to continue this classification. 2 the quistclose trust the locus classicus is barclays bank ltd. v. quistclose investments ltd.3 this is a case where quistclose lent a company, rolls razor ltd., some £210,000 to allow rolls razor to pay a dividend it had already declared. rolls razor sent the money to its bank, asking it to pay it into a separate dividend account and stating that the •• school of law, the university of essex i. the link between reservation of title clauses in sales of goods and conditional loans or payments has not always been borne in mind when one or other of the two phenomena have been examined. however, the two are brought together in the excellent article by goodhart and jones, "the infiltration of equitable doctrine into english commercial law" (1980) 43 m.l.r. 489. for a comprehensive examination of reservation of title clauses see mccormack, reservation of title (2nd. ed., 1995). see also priestley, "the romalpa trust and the quistclose trust" in p.o. finn ed., equity in commercial relationships (1987); milman and durrant, corporate insolvency law and practice (2nd. ed., 1994), chapter 8; m. bridge, (1992) 12 o.j.l.s. 333 and c.e.f. rickett, (1991) 107 l.q.r. 608. 2. some would argue however that the re kayford ltd. [1975] 1 w.l.r. 279 line of authorities are not true examples of the quistclose trust properly so called. 3. 11970]a.c. 567. 93 the denning law journal money was to be used only to pay the dividend. but before the dividend could be paid rolls razor went into voluntary liquidation, leaving quistclose and the bank to dispute ownership ofthe £210,000. the company's bank claimed the right to set off the £210,000 credit against a debit balance in another account. the claim failed. the money was held to be impressed with a trust in favour of quistclose should the primary purpose of the payment fail. lord wilberforce said that the mutual intention of quistclose and of rolls razor ltd. and the essence of the bargain was that the sum advanced should not become part of the assets of rolls razor ltd. but should be used exclusively for payment of a particular class of its creditors, namely, those entitled to the dividend. this entailed the necessary consequence that if, for any reason, the dividend could not be paid, the money was to be returned to quistclose. the word "only" was not capable of bearing any other effect. 4 his lordship was emphatic in his disavowal of the idea that a transaction giving rise to a legal action for debt could not also create a trust. he said: "there is surely no difficulty in recognising the co-existence in one transaction of legal and equitable rights and remedies; when the money is advanced, the lender acquires an equitable right to see that it is applied for the primary designated purpose ... : when the purpose has been carried out (i.e. the debt paid) the lender has his remedy against the borrower in debt; if the primary purpose cannot be carried out, the question arises if a secondary purpose (i.e. repayment to the lender) has been agreed, expressly or by implication: if it has, the remedies of equity may be invoked to give effect to it, if it has not (and the money) is intended to fall within the general fund of the debtor's assets) then there is the appropriate remedy for recovery of a loan. i can appreciate no reason why the flexible interplay of law and equity cannot let in these practical arrangements, and other variations if desired; it would be to the discredit of both systems if they could not."5 the early authorities in upholding the claim put forward by quistclose, the house of lords followed a long line of cases dating back to the beginning of the last century. according to lord wilberforce the fact that arrangements of this character for the payment of a person's creditors by a third person, give rise to a relationship of trust, in favour, as a primary trust, of the creditors, and secondarily, if the primary trust fails, of the third person, has been recognised in a series of cases over some 4. ibid. at 580. 5. ibid. at 581-582. 94 conditional payments and insolvency the quistclose trust 150 years. toovey v. milne marks the fons et origo of this stream of authority.6 abbott c.j. said: "i thought at the trial, and still think, that the fair inference from the facts proved was that this money was advanced for a specific purpose, and that being so clothed with a specific trust, no property in it passed to the assignee of the bankrupt. then the purpose having failed, there is an implied stipulation that the money shall be repaid."7 in toovey v. milne a advanced money to his brother-in-law, b, for the purpose of b settling with his creditors. 8 that purpose failed and b was declared bankrupt. what was left of the money was repaid to a by the bankrupt. the court held that this repayment was protected and that the assignees in bankruptcy could not recover the money so repaid. the principle enunciated in toovey v. milne was applied sub silentio as it were in gibert v. gonard since the case is nowhere cited.9 gibert v. gonard is a case where a lent money to b for the purchase of a particular business. b in fact paid the money into his general bank account and drew against it to the extent of several hundred pounds for the purpose of meeting certain of his own personal liabilities unconnected with the business to be purchased. b became bankrupt before the property acquisition could be completed and it was held that a was entitled to follow and recover the money in the bank account in the same manner as if it had been in terms a trust fund. according to north j. it was very well known law that if one person makes a payment to another for a certain purpose, and that person takes the money knowing that it is for that purpose, he must apply it to the purpose for which it was given. he may decline to take it if he likes but if he chooses to accept the money tendered for a particular purpose there was a legal obligation to apply it for that purpose. 10 in other words a duty was cast upon the borrower which placed him in the position of a trustee of the money advanced. re rogers is another authority, this time of the court of appeal, to the same effect. ii this is a case where a, a money-lender, lent money to b to enable pressing creditors to be paid. some of that money was applied by b towards meeting the claim of c, a judgment creditor. b was adjudicated bankrupt and the question arose whether the trustee-in-bankruptcy could sue c to recover the money. the court of appeal declined to answer in the affirmative. the holding was that since the advance to b 6. (1819) 2 b. & ald. 683. see also edwards v. glynn (1859) 2 e. & e. 29; giben v. gonard (1885) 54 l.j. ch. 439; re rogers (1891) 8 morr. 243; re drucker [1920] 2. k.b. 237; re watson (1912) 107 l.t. 783; and re hooley [1915] 84 l.j.k.b. 181. see also the line of cases mentioned by goode infra. n.59 at pp. 180-181 including re pal/itt [1893] 1 q.b. 455; re mid-kent fruit factory [1896] 1 ch. 567; re city equitable fire insurance co. ltd (no.2) [1930] ch. 293. 7. /bid. at p. 684. 8. ibid. the early cases are well analysed by milieu, (1985) 101 l. q.r. 269 at 270-274. 9. supra. n.6 10. ibid. at 440. 11. 'supra. n.6.' millett supra. n.s, at 273 describes it as the decision of a strong court of appeal. the court consisted of lindley, bowen and kay l.jj. 95 the denning law journal was for the special purpose of enabling his creditors to be paid, it was impressed with a trust for that purpose and never became the property ofb. lindley l.j. observed: "i entertain no doubt that [a] could have obtained an injunction to restrain the bankrupt from using that money for any purpose except that of paying his pressing creditors. if this be so, the money never was the bankrupt's in any proper sense so as to vest in his trustee as part of his general assets. "12 kay l.j. stated: , 'the desire and intent of [a] . . . was to prevent the bankruptcy of [b]. . . . the true result of the evidence seems to me to be that the advance by [a] was for this special purpose, and the money was impressed with a trust, so that [a] could have prevented its being otherwise used. "13 as one commentator has pointed out one striking characteristic of these 19th. century cases is the immediacy of the debtor's need for outside sources of funding. 14. the party advancing the money is doing so on an emergency or rescue basis while the debtor serves merely as a conduit pipe through whom the money is channelled to the outside creditor. it can fairly be said that the debtor's possession of the money does not mislead. nobody is induced into further dealings with him on the basis of a false assumption as to creditworthiness. any benefit that might accrue to general creditors if the conduit pipe broke down would be pure windfall. moreover the payer is not receiving any special premium consequent on the transaction being characterised as a mere loan. thus it does not seem unfair to general creditors if the payer is allowed to return or recover the money as the case may be. doctrinal criticisms of quistclose the notion of the quistclose trust has engendered some discussion and disquiet insofar as the finer points of the law of trusts are concerned. is issues for debate include whether the trust is properly constituted, questions of enforcement, revocability and the identity of the beneficiary. consideration of these questions will be postponed until later in the article but one might legitimately inquire here about why the primary purpose was deemed to have failed in quistclose. some observers have no doubts. for instance in re northern developments (holdings) ltd. sir robert megarry v.c. said: "[i] n the quistclose case, the primary purpose was clear, simple and definite, both in its ambit and frustration. the purpose was to pay a particular debt due to particular creditors upon a particular date; and once the company [b] had 12. ibid. at 248. 13. ibid. at 249. 14. see bridge supra. n.!. is. see in particular millett ·supra. n.s·, and rickett supra. n.!.2 96 conditional payments and insolvency-the quistclose trust decided to go into liquidation, that primary purpose plainly could never be accomplished. once the voluntary winding up had commenced, the dividend could not be paid in competition with other creditors . . . and so in the circumstances no trust for the payment of the dividend could be carried out. "16 there are some difficulties with this analysis however. 17 for a start the dividends had actually been declared before the loan was obtained. case-law establishes that the declaration of a dividend by resolution of the shareholders brings into being an immediate debt in their favour unless a later date for payment has been expressly specified. the argument therefore is that the trust to pay the dividends was complete. subsequent liquidation of the company could not unravel that trust. 18 in his exploitation megarry v.c. relied on what is now section 74(2)(f) of the insolvency act 1986 which relegates shareholder claims for unpaid dividends behind debts due to external creditors. clearly the statutory provision precludes debts based upon unpaid dividends being proved in competition with the claims of outside creditors. the legislative statement would not seem though to catch trusts of dividends. 19 as one judge writing extra-curially put the matter: "it does not prevent a trustee from paying trust money, which ex hypothesis does not belong to the company, to the persons beneficially entitled thereto. "20 the better view may be that the underlying purpose behind the conditional loan arrangements in quistclose was not merely the payment of a dividend to shareholders but also the preservation of the company as a going concern. 21 in other words, the case is explicable with reference to a corporate salvage rationale.22 a similar explanation may be prof erred in respect of re e. v. t.r. ltd. 23 this is a case where the appellant, b, had the good fortune to win a big prize on the premium bonds. he was not in the business of lending money but was persuaded to lend £60,000 to a company, evtr ltd., that was experiencing financial difficulties. the company was run by a friend of his. b was advised by his accountant, in no uncertain terms, that he would be wasting his money if he simply lent it unconditionally to the company. what happened therefore, was that b advanced to solicitors acting for evtr ltd., 16. unreported, october 6, 1978. despite its unreported status the case has been referred to extensively by academic commentators and was also the subject of lengthy discussion in carreras rathmans lid v. freeman mathews lid. [1985] ch. 207. 17. see generally h.a.j. ford and w.a. lee, principles afthe law aftrusts (1990) at p.31; millett 'supra. n.8', at 275-276; rickett supra. n.1.2; oditah (1992) 108 l. q.r. 459 at 475. 18. millett ibid. at p. 276 argues that there is not good reason why the rights of the shareholders to the money should be affected by the subsequent liquidation of the company, b. the desire of b's liquidator to repay the loan to a rather than to pay the dividend is understandable though as the effect of paying the dividend would be to substitute a, an ordinary creditor, for c, a deferred creditor, to the detriment of the general body of creditors. 19. see oditah, supra. n.17 at 475. 20. see millett, supra. n.8, 269 at 276. 21. it might also be the case that there was a further condition attached to the payment to the effect that the money should be utilised for paying dividends only if rolls razor obtained further finance by a named date. on this point see [1968] ch. 504 at 549-551. 22. see r.p. austin, (1986) 6 o.l.l.s. 444 at 455. 23. [1987]b.c.l.c. 646. 97 the denning law journal the sum of £60,000 "forthe sole purpose of buying new equipment". unfortunately, evtr ltd. did not have the balance necessary to buy the equipment outright and so a more complicated scheme was embarked upon with two other companies. the first company was the manufacturer of the equipment. evtr ltd. contracted with this company for the supply of new equipment to be delivered within 7 months and in the meantime to supply the company with temporary equipment. evtr ltd. also entered into a contract with another company under which the second company agreed to take over evtr ltd.'s obligations under the contract with the manufacturer by buying the new equipment and then leasing it to evtr ltd. the contract involved evtr ltd. paying a deposit of £60,000 plus 36 monthly instalments. the bank who had financed evtr ltd. appointed receivers to the company before the new equipment arrived and the two supplier companies returned the £60,000 less various agreed deductions. the question arose whether the refunded sum formed part of the general assets of evtr ltd. available for distribution to its secured creditors or whether it was impressed with a trust in favour of b. this involved consideration of the point whether the original purpose of the transaction had been accomplished. in other words, had b been disappointed in his aim of making himself an unsecured creditor of evtr ltd?24 the court of appeal answered in the affirmative. dillon l.j. suggested that the purpose of b from which any trust was to be implied was, realistically, the purpose of evtr ltd, acquiring new equipment and not the purpose of evtr ltd entering into an abortive contract for the lease/purchase of new equipment. bingham l.j. opined that it would strike most people as very hard if b were in this situation to be confined to a claim as an unsecured creditor of the company.25 moreoever, it must be pointed out that b was not a trade creditor conversant with credit risk and the bank's debenture had been granted some time before the injection of credit by b. as one commentator perceptively observes: "the bank would have been a windfall creditor if the quistclose trust, and its failure of achievement, had not been recognised. "26 application of the conditional payment principle some controversial cases if the primary purpose of the payment had been carried out in quistclose then the result achieved is one of credit substitution.27 a, the payer, becomes a creditor of b, the person to whom payment is made, instead ofc, the third party creditors who are the ultimate intended recipients of the payment. before the payment was made, there was no pre-existing relationship of debt between a and b. 24. to borrow the felicitous expression of michael bridge supra. n.1 at 354.' 25. supra. n.23 at 652. the judge added that while it was literally true that the fund which the appellant, b, provided was applied to the stipulated purpose, the object of the payment was not achieved and that was why the balance was repaid. 26. see bridge supra. n.1 at 356. 27. see priestley, supra. n.1 at p.230 who points out that the attitude of other sources of finance might change if the credit substitution were known, but this is unlikely in the case of unsecured credit. 98 conditional payments and insolvency-the quistclose trust carreras rothmans ltd. v. freeman mathews treasure ltd. involves an extension of the quistclose principle in that a stood in a relationship of debt to b prior to the time of making the payment. 28 the plaintiff tobacco manufacturer arranged that the defendant advertising agency would place advertisements for it in newspapers, periodicals and by means of posters. the services of an agency were availe<i of for this purpose so as to secure deductions on advertisement fees. the advertising agency as principal thereby incurred debts to various media creditors. these debts it recharged to the plaintiff along with its own fees. the plaintiff became concerned about the solvency of the advertising agency. if the agency went into liquidation leaving media creditors unpaid the plaintiff's reputation would suffer. alternatively, it would have to payoff the media creditors to avoid disruption of a major advertising campaign that it had launched. therefore with the agreement of the defendant, the plaintiff paid into a special account a sum equivalent to the money due to the third party creditors. the advertisng agency went into insolvent liquidation but before the media creditors could be paid the liquidator froze the special account. the plaintiff, as had been feared, was forced to discharge the sums due to the media people so as to maintain its advertising initiative. in return it took an assignment of the debts due to the creditors. thereupon it sought to recoup the moneys in the special account: a claim resisted by the defendant and its liquidator. peter gibson j. acknowledged the factual differences between quistclose and the present case.29 in quistclose the transaction was one of loan with no contractual obligation on the part of the lender to make payment prior to the agreement for the loan. in the present case there was no loan but there was an antecedent debt owed by the plaintiff. he held, however, that this factual difference was not legally material. the principle in all these cases is that equity fastens on the conscience of the person who receives from another property transferred for a specific purpose only and not therefore for the recipient's own purposes, so that such person would not be permitted to treat the property as his own or to use it for other than the stated purpose.30 carreras rothmans has attracted some criticism on the score that it ignores the possible application of the preference provision in the insolvency legislation.31 basically the legislation invalidates acts done by a company within 6 months prior to the commencement of winding up which have the effect of giving a creditor a preference over other creditors and which were influenced by a desire to achieve that result. 32. the relevant period is two years if the act is done in favour of a person connected with the company otherwise than by reason of his being its employee.33 28. [1985] ch. 207. 29. ibid. at 222. 30. ibid. 31. see priestley, supra. n.l at 235-236. 32. sections 238-241 of the insolvency act 1986. the relevant period is two years in the case of a payment made in favour ofa person connected with the company otherwise than by reason only of being its employee. for the definition of connected person see s.249 of the act. prior to the insolvency act reforms, the law concerned itself only with fraudulent preferences as defined in 5.615 of the companies act 1985 re-enacting earlier legislation. 33. for the definition of connected person see s.249 of the 1986 act. 99 the denning law journal the material provisions are contained in section 238-241 of the insolvency act which revamp the old law as embodied in section 615 of the companies act 1985 and preceding legislation. the previous statutory dispensation nullified fraudulent preferences and these were judicially held to cover only acts done with the dominant intention to prefer. 34 a payment made under pressure, however, escaped invalidation as a fraudulent preference as the element of pressure was said to remove the dominant intention to prefer. 35 thus the greater the pressure exerted by the debtor the greater the likelihood that any payment to him would not be stigmatised as a fraudulent preference. 36 the relevance of cases on the old law in the new statutory context was however denied by millett j. in re mc bacon ltd. the new law strikes down acts that were influenced by a desire to put a creditor in a superior position vis-a-vis other creditors. the judge distinguished between desire and intention. intention was objective while desire was subjective. a person might have to choose between the lesser of two evils withoqt desisting either. a payment could only be attacked if there was a positive wish to improve the creditor's position. once the requisite desire was present however the payment would be condemned. the desire need not be the causative or decisive factor in the transaction. something of a discordant note was struck by robert wright q.c. in re beacon leisure ltd. 38 he said that in many cases the difference between the objective test of intention and the subjective test of desire might be small. how does this exegesis apply in the present context? the argument goes something like this. carreras rothmans stands as authority for the proposition that the debtor of a company may discharge the debt by paying it to the company on terms which require the company to lay it aside and hold it on trust for payment only to creditors of the company who have been nominated by the debtor. the argument proceeds along the lines that the creditor negotiates away the right to receive the money beneficially in exchange for an arrangement under which one class of its unsecured creditors are satisfied from the sum paid. the consensual element in the payment is said to transform it into an act done by the recipient of the payment and so attracting the invalidating effect of the preference provisions.39 this conclusion is by no means 34. the judgment of lord tomlin in peat v. gresham trust ltd. [1934] a.c. 252 is to this effect and his observations have been amplified in numerous other judicial decisions. 35. see for instance re eric holmes lid. [1965] ch. 1052. so if a creditor is paid off in response to a threat of legal action the intention of the company paying the debt is construed as being that of removing the threat rather than preferring the creditor. 36. opinions differ about whether this state of affairs has survived the new statutory regime. it may be argued however that giving a preference to a person cannot be said to have been influenced by a desire to put the person in a preferential position if the preference would inevitably have been given whether or not the desire was present in other words if there was an overwhelming reason for giving the preference rendering all other considerations superfluous. a majority of the cork committee favoured the retention of the old rule. their contention was that a creditor who has taken active steps to obtain payment of his own debt should in principle be allowed to retain the fruits of his diligence (cmnd. 8558 (1982) at para. 1256). 37. [1990] b.c.l.c. 324. 38. [1991] b.c.c. 213. 39. it should be noted that priestley's argument (supra n.l) is made in the context ofs.122 of the australian bankruptcy act which is worded differently than its u.k. counterpart. 100 conditional payments and insolvency-the quistclose trust inevitable. if the payment is made only on condition that it is applied for a specific purpose the recipient can hardly be said to have bargained away the right to receive the payment without strings attached. moreover, the "influenced by a desire to" criterion may not be satisfied.40 there is another layer of complexity. if the primary purpose of the payment w~s carried through in quistclose one category of unsecured debt is substituted for another. one unsecured creditor is paid off and another takes its place. now to the what if. say a loan secured by a charge over the company's assets is made on condition that the amount ofthe loan is used to discharge earlier unsecured indebtedness. how does this affect the picture? generally floating charges granted by an insolvent company within the 12 month period prior to its liquidation are invalid except to the extent of any fresh advance.41 does the conditional loan count as a fresh advance?42 the answer seems to be no at least as a general proposition, though there is some discordance in the authorities.43. the incongruity dates from re matthew ellis & co ltd.44 in this case the court of appeal rejected the view advanced by astbury j. in re hayman, christy & lilly ltd. which exempted from the fresh advance exception cash payments made conditionally as to their mode of application. 45 romer l.j. said: "where a man advances money to a company on the security of a debenture on the terms that the money so advanced is to be applied by the company in discharge of one of its existing liabilities or in the acquisition of some asset which the company does not at the moment possess, the money paid by the lender did not cease to be cash paid to the company merely by reason of the imposition of that condition. "46 the other members of the court, lord hanworth m.r. and slesser l.j. were equally adamant about imposing the limitation that the fresh advance must not be applied in satisfaction of an antecedent debt. something of a via media was suggested, however, 40. it could be said that the payment has been made as a result of pressure which negates any desire to prefer. 41. the relevant provision in section 245 of the insolvency act 1986. according to this provision a floating charge on the company's undertaking or property created at a relevant time is invalid except to the extent of the aggregate of (a) the value of so much of the consideration for the creation of the charge as consists of money paid, or goods or services supplied, to the company at the same time, or after, the creation of the charge, (b) the value of so much of that consideration as consists of the discharge or reduction, at the same time as, or after, the creation of the charge, of any debt of the company, and (c) the amount of such interest (if any) as is payable on the amount falling within paras. (a) or (b) in pursuance of any agreement under which the money was so paid, the goods or services were so supplied or the debt was discharged or reduced. 42. see generally rajak, company liquidations (1981) at pp. 286-287. 43. at least kenny j. seemed to think so in the irish case re daniel murphy ltd. [1964] i.r. 1 at 15. 44. [1933] ch. 458. 45. [1917] 1 ch. 283, at 285. 46. [1933] ch. 458 at 477. 101 the denning law journal by lord hanworth m.r. he said that the court had to have regard to transactions which might often be complicated and difficult. the task was to determine whether in substance the debenture sought to be invalidated had been issued for cash paid to the company. 47 if it had been, then, although the money might have been used by the company for the purpose of meeting a liability already incurred, the security stood good. the facts of re matthew ellis & co ltd. , do not indicate villainy and perhaps show why the section was given the interpretation that it was. the case concerned an insolvent company that was granted a loan by its chairman. the latter was also a partner in a firm which supplied the bulk of its stock of goods to the company. the chairman considered that an advance might save the company. before advancing the money he was informed by his partners that they would only consent to continue to supply the company with goods on credit if the past debt to the firm was paid. the advance was made secured by a floating charge over the company's assets and out of this money a substantial sum was applied in discharging the past debt to the firm. it was held that the floating charge was good in respect of the entire sum advanced. a more absolutionist line on the section was taken by the northern ireland court of appeal in revere trust ltd. v. wellington handkerchief works ltd. 48. here the court expressed approval for the dictum that cash payments, to count as fresh advances, must be absolute and uncontrolled.49• andrews l.j. drew a clear distinction between a cash payment to the company and the payment of an existing liability of the company. the latter was not a cash payment to the company to do what it liked with as its own moneys.50 while revere trust ltd. v. wellington handkerchief works ltd., predates re matthew ellis & co ltd. in point of time, it is nowhere referred to in the latter case. re matthew ellis & co ltd. was considered but ultimately distinguished by simonds j. in re destone fabrics ltd. 51the judge suggested that the test in such cases may well be whether the transaction is to be regarded as one intended bona fide for the benefit of the company, or whether it is intended merely to provide certain moneys for the benefit of certain creditors of the company to the prejudice of other creditors of the company. 52 this test was applied by nourse j. in re gt whyte & co ltd.53 this is a case where a fresh secured loan was made by a wholly owned subsidiary of a secured creditor. the judge held that as a matter of substance the new advance was intended to secure the past indebtedness to the unsecured creditor and so the security was invalidated. so we are left with a "substance of the transaction" test. was the intention 47. ibid. at 474. 48. [1931] n.j. 155. 49. thus applying the dictum of astbury j. in re hayman. christy & lilly ltd. supra. n.45. 50. supra. n.48 at 155. 51. [1951] ch. 319. 52. ibid. at 324-325. 53. [1983] a.c.l.c. 311. see also re fairway magazines ltd. [1993] a.c.l.c. 643. 102 conditional payments and insolvency-the quistclose trust to provide a genuine commercial benefit for the company or merely to substitute secured for unsecured indebtedness? it should be noted that all these cases were decided under old legislation which invalidated floating charges created within a certain period prior to the commencement of winding up, except to the extent of "cash paid" to the company at the time of the creation of the charge, and in consideration for the charge. the wording has since been revised. the exception in s.245(2)(a) and (b) ofinsolvency act 1986 now covers the aggregate of: "(a) the value of so much of the consideration for th.e creation of the charge as consists of money paid, or goods or services supplied, to the company at the same time as, or after, the creation of the charge, (b) the value of so much of that consideration as consists of the discharge or reduction, at the same time as, or after, the creation of the charge, of any debt of the company . . ." it is submitted that the new wording and in particular, the introduction of paragraph (b) would make no difference to the result in the cases discussed. the contention is that the old debts are not in fact discharged as a matter of substance. 54 failure to take account of the invalidating provisions of insolvency legislation is also a criticism levelled at re kayford ltd. 55 this case concerned a company which carried on a mail order business. the company was in financial difficulties and took advice on how best to protect customers. the customers were sending money to the company in anticipation of being supplied with goods. the company was advised by accountants to open a customers trust deposit account into which all further sums of money sent by customers for goods not yet delivered should be paid, so that should the company be forced into liquidation, these sums could be refunded to the customers who had sent them. the company largely accepted that advice but instead of opening a new account used a dormant deposit ~ccount in the company's name. megarry j. held that a trust in favour of the customers had been created. the whole object of what was done was to ensure that the moneys remained in the beneficial ownership of those who sent them, and a trust was the obvious means of achieving 54. see gower's principles of modern company law (5th. ed .. 1992) at p.424 but compare r.e. pennington, corporate insolvency law (1991) at pp.221-222. 55. supra. n.2. it has been argued that re kayford ltd. and its direct derivatives are not examples of quistclose type trusts. the contention is that in these cases recovery by the original "lenders" is by virtue of an express trust rather than a resulting trust. for a development of this argument see rickett supra. n.1 at 609. in this article a broader commercial approach to conditional payments is taken and there is no doubt that re kayford ltd. at least in the way that the judge saw the facts, involves an example of a conditional payment. 103 the denning law journal this.56 the sender could create a trust by using appropriate words when he sends the money or the company could do it by taking suitable steps on or before receiving the money. if either was done the obligations in respect of the money were transformed from contract to property, from debt to trust. the judgment of megarry j. is characterised by a concern for members of the consuming public some of whom, in his words, "can ill afford to exchange their money for a claim to a dividend in the liquidation, and all of whom are likely to be anxious to avoid this. "57 some might think that this concern is misguided. for instance the cork committee on insolvency law and practice suggested that the customer who paid in advance for goods or services to be supplied later extends credit just as surely as the trader who supplies in advance goods or services to be paid for later.58 there was no essential difference. each gave credit; and if the credit was misplaced each should bear the loss rateably. on the other hand, prepayment customers may not perceive themselves as providers of unsecured credit. there is much to be said for the view of the office of fair trading that prepayment customers do not consciously become creditors, and that they have no means of securing the money which they advance. in re kayford ltd. megarry j. said that no question of a fraudulent preference arose. one was concerned here not with the question of preferring creditors, but of preventing those who pay money from becoming creditors, by making them beneficiaries under a trust. 59 this analysis has not been universally accepted. attention may have been diverted from the question of who owned the moneys at the time that the company declared itself trustee of them. if the company owned the moneys at that time, then the declaration of trust had the effect of impermissibly altering the statutory order of priorities for payment of creditors. 60 56. ibid. at 282. he said that payment into a separate bank account was a useful (though by no means conclusive indication of an intention to create a trust, but there was nothing to prevent the company from binding itself by a trust even if these were no effective banking arrangements. 57. ibid. at 282. the judge added: "in cases concerning the public, it seems to me that where money in advance is paid to a company in return for the future supply of goods or services, it is an entirely proper and honourable thing for a company to do what this company did, on skilled advice, namely, to start to pay the money into a trust account as soon as there begin to be doubts as to the company's ability to fulfil its obligations to deliver the goods or provide the services. i wish that, sitting in this court, i had heard of this occurring more frequently; and i can only hope that i shall hear more of it in the future." 58. cmnd. 8558 (1982) at para. 1052. 59. supra. n.2 at 281. see also goode, payment obligations in commercial and financial transactions (1983) p.18 n.64. 60. see waters, (1983) 21 alberta law review 395 at 417. on the other hand it has been argued that if money is received in circumstances in which the court would hold the recipient accountable as a constructive trustee, then there will be no preference because the creation of the fund will not have put the customer in a better position than that customer would have enjoyed in an ensuing bankruptcy or liquidation. in other words there is no factual preference regardless of whether there was the requisite desire to produce that effect. for this argument see hamish anderson, "the treatment of trust assets in english insolvency law" in ewan mckendrick ed., commercial aspects of trusts and fiduciary obligations (1992). the argument is developed infra in connection with the discussion of re chelsea cloisters ltd. (1981) 41 p. & c.r. 98. 104 conditional payments and insolvency-the quistclose trust despite all the criticisms re kayford ltd. , was followed by the court of appeal in re chelsea cloisters ltd. 61 this was a case where the company which was the underlessee of a block of flats granted numerous tenancies. it took a deposit from individual tenants in respect of any sum which might be due from the tenant at the end of the tenancy for damage, breakages and compensation. initially there were no special arrangements for dealing with the deposits of the tenants but when the company got into financial difficulties a chartered accountant was appointed to supervise the running of the company. this supervisor expressed a wish that the tenants' deposits should be kept separate from other moneys of the company and so they were segregated from the company's general assets and paid into a tenants' deposit account. the company went into liquidation and it was held that the deposits were held on trust for the tenants. lord denning said that the deposits were not impressed with a trust from the very beginning.62 the creation of the special arrangements, however, established a trust.63 no issue of improper preference was raised.64 according to lord denning the supervisor realised that the company was in a hopeless position; it had no money to pay anybody and there was a danger that these deposits might fall into the hands of the other creditors of the company, contrary to the justice of the case. 65 it must be pointed out, however, that the supervisor nowhere used explicit trust language; terminology that ought to have been familiar to a chartered accountant. the decision has been viewed as an exercise in discretionary justice. the company had gone into liquidation with total debts approximating to £50 million whereas the sum of the tenants' deposits was in the region of £20,000. greater joy would be experienced by meeting the claims of the tenants in full rather than by spreading the piteously small sum of money almost invisibly across the general range of creditors. 66 it has been suggested that for the company to claim beneficial ownership of the deposit money would involve more than a taint of fraudulent trading. under the legislation in force at the time re chelsea cloisters ltd. , was decided, where a company had gone into liquidation the court could direct particular payments to particular creditors who had been defrauded. 67 in 1986 a wider notion of wrongful trading was 61. (1981)41 p. & c.r. 98. the case was approved in re lewis's of leicester ltd. [1995] bcc 514. 62. ibid. at 101. he referred to potters v. loppert [1973] ch. 399. see also bridge l.j. at 102 and oliver lj at 104 who were disinclined to express an opinion on this point. 63. referring to henry v. hammond [1913] 2 k.b. 5151 and hughes v. stubbs (1842) 1 hare as well as re kayford ltd. supra. n.2. 64. hamish anderson, supra. n.60 at p. 178 point out that the person responsible had acted in the belief that there was an obligation to protect the deposits thereby negativing the possibility of there being an improper preference. in re vautin [1900] 2 qb 325 it was held with reference to the old statutory dispensation that a payment made under an honest and reasonable belief that there was a legally binding obligation to pay could not be struck down as an improper preference. see also on this point re lewis's of leicester ltd. [1995] bcc 514. 65. supra. n.61 at 102. 66. see bridge, supra. n.l at 357. 67. section 332 of the companies act 1948 as interpreted by a majority (lord denning m.r. and danckwerts lj.) of the court of appeal in re cyona distributors ltd. [1967] ch. 889. 105 the denning law journal introduced in the insolvency legislation68 but the concept of fraudulent trading was retained to cover specific cases.69 in situations of both frauduent and wrongful trading, however, payments ordered to be made only go to swell the general assets of the company. such payments cannot be earmarked by the court for specific creditors who may have been defrauded. application of the conditional payment principle some uncontroversial cases re kayford ltd. and re chelsea cloisters ltd. may be distinguished from re nanwa gold mines ltd. which seems safe from criticism.70 in re nanwa gold mines ltd. money was advanced on the faith of a promise to keep it in a separate account, and harman j. held that a trust had been created. he contrasted moseley v. cressey's co. where a simple statement that application moneys would be refunded was held not to bind moneys standing in a bank to the credit of the company, with a trust in favour of the depositors. the intent of the promise to keep in a separate account meant that the moneys would not be mixed with the company's moneys.n. many of the great cases in the company law field involve speculative projects in far flung corners of the globe during the halcyon days of imperial expansion. 73 such projects often involved great risk, and to minimise the risk factor the trust arrangement was often employed. financiers instead of advancing money directly to the company would advance it to intermediaries, trustees, who would release it to the company at various stages of the project. national bolivian navigation co. v. wilson involved such a project and arrangement. 74 this is a case where money had been subscribed by investors for a particular purpose namely the construction of a railway linking brazil and bolivia. the money was placed in the hands of trustees for the investors, and it was the duty of the trustees to pay portions of the money over to the company 68. section 214 of the insolvency act 1986. under this provision once a director, or shadow director, knows, or ought to have concluded, that there was no reasonable prospect that a company would avoid going into insolvent liquidation , he must take every step with a view to minimising potential loss to company creditors. otherwise the person may be declared liable to make such contribution (if any) to the company's assets as the court thinks proper. 69. ibid. section 213. this section applies to any liquidation whereas s.214 is confirmed to cases of insolvent liquidation. moreover, 213 covers any person who was knowingly party to the carrying on ofthe business in a fraudulent manner whereas s. 214 is limited to directors and shadow directors. 70. [1955] 3 all e.r. 219. see also national bolivian navigation co. v. wilson (1880) 5 app. cas. 176. elkins v. capital guarantee society (1900) 16 t.l.r. 423; re independent air travel ltd. [1961] i lloyd's rep. 604 and smith v. liquidator of james birrell ltd. 1968 s.l. t. /74 71. (1865) l.r. 1 eq. 405. 72. supra. n.70 at 223. 73. one might instance in this connection some of the cases on promoters like erlanger v. new sombrero phosphate co. (1878) 3 app. cas. 1218. 74. supra. n.70. 106 conditional payments and insolvency-the quistclose trust as portions of the intended railroad were constructed. the house of lords held that if no such railroad nor any portion of it was constructed, and its construction became impracticable, the bondholders were entitled to demand from the trustees repayment of what remained in their hands.75. another area where the quistclose principle has been uncontroversially applied lies in relation to employee claims for moneys in the hands of insolvent employers. a case in point is re independent air travel ltd. 76this is a case where a company insured the lives of its employees, three of whom later died in an air crash. it was a condition of employment that the company should insure the lives of the deceased employees for the latter's benefit. the insurers in fact paid over on foot of the insurance policies' moneys for distribution to the families of the deceased but the company went into receivership before this task could be done. plowman j. held that the moneys had been received on trust for the estate of the three deceased, although no express words of trust had been employed. a similar result was reached in the scottish case, smith v. liquidator of james birrell ltd. 77this is a case where a company had paid into a special bank account moneys received from an insurance comany representing different employee pension and insurance schemes which the company had decided to discontinue. the sum received was for the benefit of the employees in the employment of the company at the date of the discontinuance of the scheme. lord fraser, in the outer house of the court of session, decided that this money did not form part of the general assets of the company. the money was clearly distinguishable and capable of being disentangled from the company's own funds, and it ought to be paid to the former employees of the company entitled thereto. 78 formalities for the establishment of trust there remains to be considered the prerequisites for the creation of a valid express trust, namely the three certainties certainty of intention, certainty of subject-matter and certainty of obj~cts. moreover, if the declaration of trust relates to land, signed written evidence must be available before the trust can be enforced.79. certainty of intention this issue was discussed in re kayford ltd. where megarry j. said that a trust can be created without using the words "trust" or "confidence" or the like. the 75. according to lord blackburn the trust was created by the prospectus on the faith of which the bondholders, or those whom they represent, lent their money: ibid. at 207. 76. supra. n.70. 77. supra. n.70. 78. ibid. at 175. 79. section 53(l)(b) of the law of property act 1925. 107 the denning law journal pertinent question was whether a sufficient intention to create a trust had been manifested.80 sufficiency of intention to create a trust was not manifested in swiss bank corporation v. lloyds bank ltd. 81 the facts of the case are complicated, but the nub of the issue was whether a lender of money, the swiss bank corporation, had obtained any kind of proprietary interest in securities which the borrower, as the lender knew, wished to use the loan to invest in. the loan agreement did not actually cover such a proprietary interest, but in it, the borrower did promise that it would observe all the conditions attached by the bank of england to its consent for the loan. these conditions included the requirements that the loan was to be used exclusively for the purchase of certain foreign securities (f .lb.l securities) and that the interest on, and capital of the loan were to be repaid to the swiss bank corporation out of the f.lb.l securities or the proceeds of their sale. the borrower subsequently charged the f.lb.l securities to lloyds bank as security for a guarantee given in respect of a further loan from that bank. when the swiss bank corporation sought repayment of the loan, it claimed to have a better interest in the securities than lloyds bank. although the judge at first instance, brownewilkinson j., held in the plaintiff's favour, both the court of appeal and the house of lords held against the swiss bank corporation. none of the appellate judges in the swiss bank case could see anything in the loan which specifically said that the borrowers would repay the loan out of the f .lb.l securities, nor would they imply any such promise. both the court of appeal and the house of lords' judges were content to apply the law stated by lord w renbury in palmer v. carey: ••an agreement for valuable consideration that a fund shall be applied in a particular way may found an injunction to restrain its application in another way. but if there be nothing more, such a stipulation will not amount to an equitable assignment. it is necessary to find further, that an obligation has been imposed in favour of the creditor to pay the debt out of the fund. "82 the requisite certainty of intention to create a trust was also held not to have been established in re multi guarantee co ltd. 83 this is a case where a company, m.g., was incorporated to market warranties for domestic appliances, which provided insurance after the manufacturer's guarantee expired. v was the owner of a chain of shops and it operated the m. g. scheme by collecting premiums from its customers and then paying them over to m. g. v became concerned as a result of press reports that m. g. had not obtained proper insurance coverage for the scheme, and it negotiated with m. g. so as to protect the interests of its customers by safeguarding the money in the relevant m.g. account. to stave off proceedings for a mareva injunction or 80. supra. n.2 at 282. 81. [1982] a.e. 584. see also re multi guarantee co. ltd. infra. n.83. 82. [1926] a.c. 703 at 706-707. 83. [1987] b.e.l.e. 257. see also re bank of credit and commerce international s.a. (no.3) [1994] bee 462 where the argument based on the alleged existence of a quistclose type trust was very much a fall-back position and an unsuccessful one at that. 108 conditional payments and insolvency-the quistclose trust for an order for the interim preservation of property, m. g. agreed to transfer the money into a joint deposit account which could only be drawn on under the joint signatures of m.g.'s and v's solicitors. there were however no detailed terms concerning the basis on which withdrawals. might be made from this ccount. v succeeded in arranging its own insurance cover for the extended warranty protection, but before an agreement to release the money in the joint deposit account to v could be effectuated, m.g. went into liquidation. the question before the court was whether as v contended, m.g. had constituted itself a trustee of the money in the account, and in this way divested itself of all beneficial interest therein. the court of appeal held that m.g. had never displayed a sufficient intention to create a trust.84 the necessary certainty of intention had not been shown and thus the premium moneys constituted part of the general assets of m.g. the problem was that there were a number of possible destinations for the money in the joint account apart from being returned to v. for instance it could have been paid directly to any one or more of a number of possible insurers. on the other hand re multi guarantee co. ltd. was distinguished and a trust held to have been established in re lewis's of leicester ltd. 84. this is a case where a number of licensees occupied "shop within a shop" concessions in a department store. the licensees included those who sold their own goods but put the takings in the company's tills on standard terms which provided for them to receive from the company a payment equivalent to gross takings less returns and commission. the financial position of the company became parlous and it took steps to ensure that further receipts of licensees' takings, mistakenly believed to be already subject to a trust under the standard form agreements, were kept separate and identifiable in segregated accounts. did this mistaken assumption vitiate the intention to establish a trust on the basis that if a person believes that he is a trustee he cannot logically intend to create a trust for the first time. robert walker j. refused to accept this prosposition. in his view there had been segregation of moneys and the incorrect false assumption was a fortiori a reason for holding that a trust had been brought into being. certainty of subject-matter the property which is said to form the subject-matter of the alleged trust must be identifiable. a trust claim failed on this ground in re london wine co (shippers) ltd. 85 this case involved a wine merchant who appropriated part of its general wine 84. see the statement by nourse l.j. ibid. at 268. 84a. [1995] bcc514. 85. [1986] p.c.c. 121. the case was decided on november 7, 1975. see also export credits guarantee dept. v. turner 1981 s.l.t. 286. 109 the denning law journal stock to a specific customer order only when the customer came to collect the wine. the wine merchant went into receivership. oliver j. held that customers could not claim to be beneficiaries under a trust (of the wine) as the essential element of certainty of subject matter was absent. re london wine co (shippers) ltd. was distinguished in hunter v moss.85a in this case the defendant was the absolute beneficial owner of 950 shares in a company which had an issued share capital of i ,000 ordinary shares. he orally declared himself to be a trustee of these shares for the plaintiff. was there the requisite certainty of subject matter for the trust to be effective? the court of appeal answered in the affirmative in this particular case, since all the shares were of one class in one company and were of such a nature as to be indistinguishable from one another. they were all equally capable of satisfying the trust. 85b certainty of objects even if the requirements of certainty of intention and certainty of subject-matter are satisfied, there cannot be a valid rust for beneficiaries or purposes if those beneficiaries or purposes are themselves insufficiently certain.86 in such a situation of uncertainty the property is held on a resulting trust for the settlor. the word "resulting" is used in the sense of "springing back".87 the beneficial interest is said to spring back to the grantor but in reality it never left him. in quistclose itself the primary purpose of the payment was held to have failed so that the property was held on a resulting trust for the grantor. 88 85a. [1994] 3 all e.r.215. see alsore goldcorp exchange ltd. [1994] 2 all e.r. 806 and re stapylton fletcher ltd. !1995] i all e.r. 192. 85b. dillon l.j. said at 222, "just as a person can give, by will, a specified number of his shares of a certain class in a certain company, so equally, in my judgment, he can declare himself trustee of 50 of his ordinary shares in ... whatever the company may be, and that is effective to give a beneficial proprietary interest to the beneficiary under the trust. " 86. generally the only type of valid purpose trusts are charitable trusts because of the beneficiary principle, i.e. there must be beneficiaries who can apply to the court to enforce their rights. in the case of a charitable trust the attorney general, as guardian of the public interest, may enforce. however, the courts have recognised a certain anomalous category of non-charitable trusts. see generally re astor's settlement trusts [1952] ch. 534; leahy v. attorney generalfor new south wales [1959] a.c. 457; re denley's trust deed [1969] i ch. 373 and wicks v. firth [1983] a.c. 214. 87. "resulting" is derived from the latin verb resalire. 88. there has been some discussion as to the nature of this secondary trust. in the australian high court case australasian conference association ltd. v. mainline constructions pry. ltd. (1979) 141 c.l.r. 335 at 353 gibbs a.c.j. conceived of quistclose as standing for the proposition that where money is advanced by a to b with the mutual intention that it should not become part of the assets of b, but should be used exclusively for a specific purpose, there will be implied, at least in the absence of a contrary intention, a stipulation that if the purpose fails the money will be repaid. in quistclose, on the other hand, lord wilberforce seems to see the secondary trust as being based on an intention on the part of the lender. it was submitted that the controversy is a somewhat sterile one with the differences in formulation being more a matter of terminology than of substance. 110 condition al payments and insolvency the quistclose trust enforcement rights controversy has dogged the quistclose trust in relation to the right of the settlor, recognised in the locus classicus itself, to see that the property is applied for the primary stated purpose.89 it has been suggested that the right is not the right of a beneficiary under the resulting trust, for if the primary purpose is fulfilled there is no resulting trust and the payer is a mere creditor. it is axiomatic that, as a general proposition, a grantor or settlor who retains no beneficial interest cannot enforce the trust which he has created, but the beneficiaries can.90 this principle forms the basis of the rule against non-charitable purpose trusts and also is at the heart of the principle enunciated in saunders v. vautier.91 under this doctrine beneficiaries of full age and consent, who are all ascertained and between them entitled to the entire beneficial interest in the trust property, may have the property transferred to themselves absolutely, and bring the trust to an end. peter millett q.c., as he then was, has argued vehemently that quistclose does not necessitate the recognition of a new genus of enforceable purpose trust which a settlor may enforce.92 in his opinion the question of enforceability involves an examination of the payer's intention, which is to be gleaned from the conduct of the parties, the language used and the circumstances of the case. mr. millett has suggested various guidelines by which the payer's intention may be ascertained.93 these guidelines were expressly adopted and applied by hardie boys j. speaking for the new zealand court of appeal in general communications ltd. v. dfc new zealand ltd:94 "1. if a's intention was to benefit c, or his object would be frustrated if he were to retain a power of revocation, the transaction will create an irrevocable trust in favour of c, enforceable by c, but not by a. the beneficial interest in the trust property will be in c. 2. if a's intention was to benefit b (though without vesting a beneficial interest in him), or to benefit himself by furthering some private or commercial interest of his own, and not (except incidentally) to benefit c, then the transaction will 89. see heydon, gummow and austin, at 357; millett, supra.n.8 at 287. 90. this principle forms the' basis of the rule against non-charitable purpose trusts and also is at the heart of the doctrine enunciated in saunders v. vautier infra. 91 and text. 91. (1841) cr. & ph. 240. 92. supra. n.8 particularly at p. 290. mr. millett is now a judge. 93. ibid. at 290. these guidelines were adopted and applied by hardie boys j. speaking for the new zealand court of appeal in general communications ltd v. dfc new zealand ltd. [1990] 3 n.z.l.r. 406. for critical comment see rickett, supra. n.1 at 630 et seq. other new zealand cases include dines construction ltd. v. perry dines corp ltd. (/989) 4 n.z. c.l c. 65, and re securitibank ltd. [1978] i n.z.l.r. 97 and more recently lankshear v. a.n.z. [1993] i n.z.l.r. 481. relevant australian authority includes re associated securities ltd. [1981] i n.s.w.l.r. 742; rose v. rose (1986) 7 n.s.w.l.r. 679; re groom (1977) 16 alr 278; re miles (1989) 85 alr 216. 94. [1990] 3 n.z.l.r. 406 at 432-433. see also dines collstruction ltd. v. perry dines corp. ltd. ibid. at p. 298. the new zealand cases are discussed by rickett. supra. n.1 at 630-646, and see also j.k. maxton, "quistclose developments in new zealand" (1990) 9 int. banking law 216. iii the denning law journal create a trust in favour of a alone, and b will hold the trust property in trust to comply with a's directions. the trust will be enforceable by a but not by c. the beneficial interest will remain in a. 3. where a's object was to save b from bankruptcy by enabling him to pay his creditors, the prima facie inference is that set out in paragraph 2 above. wherever that is the correct inference; (i) where a has an interest of his own, separate and distinct from any interest of b, in seeing that the money is applied for the stated purpose, b will be under a positive obligation, enforceable by a, to apply it for that purpose. where a has no such interest, b will be regarded as having a power, but no duty, to apply it for the stated purpose, and a's remedy will be confined to preventing the misapplication of the money. (ii) prima facie, a's directions will be regarded as revocable by him; but he may contract with b not to revoke them without b's consent. (iii) communication to c of the arrangements prior to a's revocation will effect an assignment of a's equitable interest to c, and convert a's revocable mandate into an irrevocable trust for c.': the new zealand court of appeal entered one caveat. millett's formulation suggested that it was the lender's intention that was relevant, whereas in quistclose the emphasis was on mutual intention.95 a reconciliation was suggested on the basis that intention had to be ascertained objectively.96 what one party was objectively seen to have intended must, ex hypothesi, have been appreciated by the other and accepted by him when he participated in the arrangement. general communications ltd. involved in acute form, the issue of the resolution of the following conundrum. a lender, a, lends money to b, with the latter undertaking that the money shall be applied for the purpose of paying off his creditor, c. is the creditor entitled to recover what he was given to understand was intended for him, but was not paid, having instead been reclaimed by the lender? the court said "yes" but only because of the peculiar circumstances of the case rather than by reason of the adoption of any general principle. while the guidelines propounded by mr. millett were clearly accepted, their manner of application is somewhat ambiguous. stress was laid on the fact that the arrangements had been communicated to the creditor, c, making it clear that the latter need not rely on b alone for payment. this would indicate a category 3(iii) case.97 on the other hand, the court also said that as the purpose of the arrangement would be defeated by the lender, a being able to revoke 95. lord wilberforce said that the mutual intention of the respondents and of rolls razor ltd., and the essence of the bargain, was that the sum advanced should not become part of the assets of rolls razor ltd. but should be used exclusively for payment of a particular class of its creditors, namely those entitled to the dividend: see supra. n.3 at 580. 96. supra. n.93 at 433. 97. ibid. at 435. 112 conditional payments and insolvency-the quistclose trust it at will, it had put the funds beyond its power of recall and had conferred a beneficial interest on each supplier as each contract of supply was fulfilled.98 this exposition would seem to suggest a category 1 classification. mr. millett's analysis views the quistclose trust as an example of what is sometimes called an "illusory trust. "99 where a valid trust has been brought into being it cannot be revoked by the settlor unless the settlement itself contains a power of revocation. where a debtor conveys property for the benefit of his creditors an exception to the principle of non-revocability is said to arise, but the true view seems to be that the apparent beneficiaries never acquire any interest in the property at all. all we have is a trust to comply with the settlor's directions. 100 according to one judge: "a man who, without any communication with his creditors, puts property into the hands of his trustees for the purpose of paying his debts, proposes only a benefit for himself by the payment of his debts: his object is not to benefit his creditors. "101 according to james l.j. in john v. james; "such a deed as this is to be construed as a mandate, the same sort of mandate that a man gives when he gives his servant money, with directions to pay it in a particular way: it does not create any legal or equitable right in favour of a particular creditor. the right to the direction of the money is the right of the person who has put the money in the hands of his agent or steward or whoever it may be." 102 english unorthodoxy the issue of enforceability of a quistclose trust was considered in carreras rothmans ltd. v. freeman mathews treasure ltd. peter gibson j. pointed out that in none of the many reported cases in the quistclose line of cases had any consideration been given to the question, whether the person intended to benefit from the carrying out of the specific purpose which created the trust, had enforceable rights. 103 in this case he rejected the proposition that the third party creditors, for the payment of whose debts the plaintiff had paid the moneys into the special account, had no enforceable 98. ibid. the court said that there was not the intention to confer a direct and immediate benefit that marked new prance & garrard's trustee v. hunting [1897] 2 q.b. 19. this is a case where a trust was established to make good to their beneficiaries breaches of other trusts by the settlor, who intended to give them an absolute interest. lord esher m.r. said at p.26 that it was "obvious that it could not be his intention to reserve to himself any right or possibility of undoing what he was doing, and that he intended that it should be irrevocable". 99. supra. n.8 at 288-289. 100. see generally on illusory trusts pettit, equity and the law aftrusts (7th. ed. 1993) at pp. 214-215. 101. pepys m.r. in bill v. cureton (1834) 2 my. & k. 503 at 511. 102. (1878) 8 ch. d. 744 at 749-750. 103. supra. n.28. 113 the denning law journal rights. he also said that the doctrine of illusory trusts had no application to the facts of the present case. 104 copious reference was made in the case to the unreported decision of sir robert megarry v.c. in re northern developments (holdings) ltd. los this is a case where one company, northern, was the parent company of a number of companies including one, kelly, that was in financial difficulties. a consortium of banks agreed to put up a large sum of money in an attempt to rescue kelly. this money was used to keep kelly alive for a time, but kelly was then put into receivership at a time when more than half the fund was unexpended. the vice chancellor held that the fund was subject to a quistclose type trust. this trust was enforceable by the bank as lenders, by kelly for whose immediate benefit the fund was established, and by kelly's creditors. the interests of creditors were described in the following fashion: "the fund was established not with the object of vesting the beneficial interest in them, but in order to confer a benefit on kelly (and so, consequentially, on the rest of the group and the bankers) by ensuring that kelly's creditors would be paid in an orderly manner. there is perhaps some parallel in the position of a beneficiary entitled to a share of residue under a will. what he has is not a beneficial interest in any asset forming part of residue, but a right to compel the executor to administer the assets of the deceased properly. it seems to me that it is that sort of right which the creditors of kelly had." on this interpretation the beneficial interest is in suspense until the payment is made. mr. millett argues that the right result was reached in re northern developments (holdings) ltd. but for the wrong reasons. 106 he relies on the fact that creditors of kelly were aware of the existence ofthe fund and derived comfort from its existence. it seems that creditors of kelly who applied for payment of their debts or who expressed concern were told of the existence, size and purpose of the fund i.e. to stave off a liquidinion of kelly. in mr. millett's view communication of the arrangements to the creditor, followed by forebearance by the creditor, raises an equity against the payer which prevents him from revoking the arrangements, or otherwise intercepting payment to the creditor. be that as it may, it is certainly not the way in which megarry v.c. approached the case. it is submitted that the following statement by one commentator more truly reflects the principles expounded in the english cases on the quistclose trust: 104. according to peter gibson j. the doctrine of illusory trusts applied where a debtor for his own convenience settled property in favour of his creditors, the court treating the trust as a revocable one. in the present case although the defendant agreed to the discharge of an asset, its book debts, by payment by its debtor, the plaintiff, in such a way that the moneys paid would not be held on trust to pay its creditors, the defendant did not enter into the arrangement for its convenience but for good commercial reasons on the insistence of the plaintiff and the trust was not for its creditors generally but for a particular class of creditor. 105. supra. n.16. 106. supra. n.8. 114 conditional payments and insolvency-the quistclose trust , 'a variety of equitable rights and obligations arise in respect of the primary purpose trust: (i) the transferor can enforce the trust, and it is suggested, restrain any breach of the trust on the part of the transferee; (ii) the "direct" or "factual" beneficiaries can also enforce the trust, so as to acquire by the transfer ofthe money or property to them an absolute title, and, it is suggested, can also restrain any breach of the trust; (iii) certain other 'interested parties' might be treated as having standing also to enforce or restrain breaches, e.g. subsidiary companies where the transferee is the parent company and the transfer was made in the context of a corporate salvage plan. while the primary purpose trust endures, the beneficial interest in the property remains in suspense." 107. conclusion conditional payments made to a company that has subsequently become insolvent should escape the clutches of the liquidator. the devices through which this result can be achieved are discussed in this article. the quistclose trust is one such mechanism and the re kayford type trust is another. quistclose involves a primary purpose/secondary purpose trust whereas the re kayford line of authorities entail more in the nature of an orthodox persons trust with specific and recognisable beneficiaries, and no added complication of a secondary purpose. here both have been run together under the rubric of conditional payments since they serve the same commercial purpose. both strain at the leash of conventional trust principles. with the quistclose trust the difficulty lies with the application of the beneficiary concept which is at the heart of trust law. it is submitted however that the problems may be overcome if the relevant principles are interpreted flexibly, and bearing in mind the overriding commercial objective of conditional payment arrangements. the quistclose trust is the functional equivalent of the purchase money security interest or acquisition mortgage and should be accorded recognition and priority as such. 108. with re kayford and associated cases the difficulties arise at an altogether more factual level. sometimes the conditional element in the payment may seem like an exercise in ex post facto rationalisation and the decision approaches an application of discretionary justice. if that is the case then we are more in the realm of the so-called remedial constructive trust but that is another story. 107.see rickett supra. n.1 at 619. the article by rickett also contains an interesting account of the australian cases re groom; re associated securities ltd; rose v. rose; and re miles all supra. n.93. 108. for the use of the concept of the purchase money security interest in a different context see bennett and davis, (1994) 110 l.q.r. 448. 115 the promised constitution of the promised land: the israeli constitutional experience z. sigat & a. s. rehany *" recently many distinguished commentators have expressed the need for a formal and written constitution in the united kingdom. 1 the intention of this article is not to discuss the requirement of such a constitution, but rather to offer a general outline of the development of the israeli constitution. however, the british lawyer might find the israeli model useful as a stimulant of new ideas for constitutional reform. in reading this article, several questions should be kept in mind. the first is the frequently discussed issue of whether there is a need for a written constitution.2 the second part of the article, which discusses the establishment of the state of israel, its declaration of independence and the decision to adopt a piecemeal constitution, might suggest that the answer to this question is not necessarily in the affirmative. secondly, if one is advocating a written constitution for the u.k., one should ask how such constitution should be introduced to a state with a long-standing tradition of a non-written constitution. to this the third part, which portrays the birth of the israeli constitution, i. e. the enactment of the various basic laws, is relevant. finally, one should be aware of the role that political interests, on the one • of oxford brookes university . •• fonnerly member of trinity college, oxford. the authors wish to thank dr.rachael craufurd smith and mr.adam samuel for their remarks on an earlier draft of this article. i de smith & brazier, constitutional & administrative law (7th.ed.,penguin, 1994) at 48; lord denning, what next in the law (butterworth, 1982) at 319; jowell & oliver (eds.) the changing constitution (3rd.ed., clarendon, 1994). 2 lord browne-wilkinson, "the infiltration of a bill of rights" [1992] p.l. 405. 63 denning law journal hand, and judicial activism on the other, play in the formation of a written constitution. these will become apparent in the fourth part where two recent basic laws which directly concern fundamental rights are discussed. as background the first part of the article outlines the legal sources of israeli law which date back to the period before the establishment of the state of israel. i. before the establishment of the state ofisrae11517-1948 palestine was under ottoman rule from 1517 until the end of the first world war. it was conquered by the british troops in 1917, and was granted to england in 1922 by the league of nations as a mandatory territory for the purpose of establishing "a national home for the jewish people." thus, thirty years of british mandate over palestine began.3 the british administration found the ottoman law, under which palestine was governed difficult to apply to modem legal problems. this lead to a steady process of modification of the ottoman legal system during the period of the british mandate. the modification of the ottoman legal system was conducted by the british in various forms. the first was by introducing statutes based upon westrninister legislation 4 or by issuing ordinances which gave statutory form to existing british common law principles. the second was by virtue of article 46 of an order-in-council from 1922.5 in case of a lacuna in the local laws, this article provided that the mandate administration would apply the british common law rules and the doctrines of equity which were in force at that time in england. as the vast majority of the judiciary in palestine was british, article 46 was given a wide interpretation in order to give english law a greater foothold within the laws of palestine. at the end of the mandate period, in 1948, palestinian law had become dominated by english law, with only residual elements of ottoman principles.6 3 d.friedman, "the infusion of common law into the state of israel" (1975) 10 israel.l.rev. 324. 4 eg. the bills of exchange act 1882 and the companies act 1929. 5 palestine order in council, 10th.august, 1922. 6 d.friedmann, "the effect of foreign law on the law of israel: remnants of the ottoman period" (1975) 10 israel.l.rev. 192. 64 the promised constitution of the promised land ii. between the establishment of the state of israel and the enactment of the first chapter of the constitution 1948-1958 from the very first day of the existence of the state of israel it was obvious that the new state would follow many other modem western states in having a formal constitution. the requirement for a formal constitution and for the establishment of a constituent assembly are clearly stated in the declaration of the establishment of the state of israe1.? the role of the executive was to be performed by a provisional council and the task of adopting a constitution was to be performed by the constituent assembly. the co-existence of the provisional council and the constituent assembly was terminated by the constituent assembly (transition) ordinance.8 thus, the task of adopting a formal constitution was to be performed by a constitutional body which consisted of both a constituent assembly and a house of representatives. that body later transformed into the first knesset (the israeli parliament). on its first anniversary a debate was held in the knesset on the issue of whether or not a written constitution should be adopted. 9 for the purpose of this discussion a description of the political parties which participated in that debate is irrelevant, as are the parliamentary relations between these parties. arguments for and against a written constitution were generally similar to those often made 7 1948 1 l.s.i. 4 (1948): "we declare that with effect from the moment of the termination of the [british] mandate, being tonight, the eve of sabbath, the 6th.ofiyar, 5708 [15th.may, 1948], until the establishment of the elected, regular authorities of the state in accordance with the constitution which shall be adopted by the elected constituent assembly not later than 1st.october, 1948, the people's council shall act as provisional council of state, and its executive organ, the people's administration, shall be the provisional government of the jewish state, to be called the state ofisrael" (emphasis added). r 19492 l.s.i. 81 (1948/49) s.3: "the constituent assembly shall, so long as it does not itself otherwise decide, have all the powers vested by law in the provisional council of state." also see s.l: "the provisional council of state shall continue in office until the convening of the constituent assembly of the state ofisrael; upon the convening of the constituent assembly, the provisional council of state shall dissolve and cease to exist." 9 divrei ha-knesset [the israeli equivalent of the british hansard] (1950) voi.iv, 714 (in hebrew). for a summary of that debate in english see, emanuel rackman, israel's emerging constitution (columbia university press, new york, 1955) at llo-i 17. 65 denning law journal with regard to a british constitution. to however, some of the arguments which were particular to israel are noteworthy. such arguments which supported a written constitution were: first, that both the declaration of the establishment of the state ofisrael ii and the united nations general assembly resolution 12 called for a written constitution. secondly, a constitution would have an important educational value. this was thought to be of special significance due to the flood of jewish immigrants from different socio-iegal backgrounds. 13 thirdly, a written constitution would embody declarations of fundamental freedoms, thus contributing to the democratic values of the new state.14 these arguments seem to rely upon the particular political and socio-economic situation of the new state. ironically, those opposing a written constitution relied upon the very same political and socio-economic circumstances: first, to create rigid and unchangeable laws, without first testing their application, could lead to disastrous results. 15 secondly, it would be useless to create a written constitution at this point in the history of the jewish state. only after the historic process had taken place could the constitutional form of the state be included within a written constitution. 16 thirdly, even the drafting of the constitution would lead to a severe dispute within the people as to what the constitution should include. this dispute existed, and still exists today, between the religious parties who oppose a written constitution, and the secular parties, the majority of which favour a written constitution. 17 fourthly, the constitution should be adopted only ]0 see e.g. antoine clarke, "the case for a written constitution: even broken or bad promises are better in writing" liberation alliance no.4 (1996), & lord browne-wilkinson, supra.n.2. 11 supra.n.6. 12 g.a.res.133 u.n.doc.n519 at 131-50 (1947). this resolution dealt with the partition of palestine into a jewish state and an arab state. both projected states were to have a formal constitution. 13 divrei ha-knesset (1950) voliv 734. 14 ibid. at 736, 737, 745 & 824. 15 ibid. at 727. 16 ibid. at 732. 17 ibid. at 812. 66 the promised constitution of the promised land after the majority of the jewish people gathered in the new state. any other course of action would lead to a constitution which would reflect the will of a minority of the people. is towards the end of the debate, two resolutions were proposed as possible settlements of the dispute. the first was called the resolution of the 37 (members ofk.nesset); the second was called the harrari resolution since it was proposed by mr.yizhar harrari m.k. (member of knesset). 19 due to political and paramilitary reasons the harrari resolution was adopted by the knesset. thus, the israeli constitution was to be formed in a piecemeal manner, each chapter of the piecemeal constitution to be called a basic law. however, the constitutional status of these basic laws was not clear from the wording of the harrari resolution, and it remained to be seen what status would be given to them. the first basic law to be passed was basic law: the knesset 20 in 1958.21 the period of eight years between the harrari resolution and the passing of basic law: the knesset, created a constitutional vacuum. it was clear from the harrari resolution that some chapters of the israeli constitution should be made. in the absence of such laws the israeli judicial system referred to other constitutional sources, such as the declaration of the establishment of the state ofisrael. the declaration of the establishment of the state ofisrael states that: "it will be based on freedom, justice and peace as envisaged by the prophets of israel; it will ensure complete equality of social and 18 ibid. at 819. 19 divrei ha-knesset (1950) vol.v, 1743 (in hebrew). the first proposition read: "the knesset decides to charge the constitutional, legislative and judicial committee with the preparation of the state constitution, and to present it to the first knesset. the knesset will decide upon the dates of the termination of the committee's wor'" [emphasis added]. the second proposition read: "the first knesset charges the constitutional, legislative and judicial committee to prepare a proposed constitution for the state. the constitution shall be constructed in chapters in such a way that each of them shall be a fundamental [sometimes referred to as 'basic laws'] law by itself. the chapters shall be brought before the knesset as the committee finishes its work on each, and all the chapters together shall then be combined into a constitution for the state." from the different wording it is obvious that the latter, unlike the former, is an indefinite postponement of the formation of a formal constitution. this is, most likely, the reason that the latter was adopted, for it served the interests of those who opposed the constitution. 20 a colon is used to indicate that the words "basic laws" are not an integral part of the name of the act. 21195812 l.s.i. 85 (1958). see also amendmentno.3 13 l.s.i 228 (1958). 67 denning law journal political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture ...'>22 in the landmark case of ko! ha 'am v.the minister of interior 23 the minister of interior ordered the suspension of the publication of the newspaper of the communist party called 'kol ha'am (the english translation is 'the voice of the people'). under the press (amendment) ordinance 1936 24 section 19(2)(a), the minister of interior had the right to do so if he was of the opinion that the publishing of the newspaper was "likely to endanger the public peace ..." 25 the newspaper sought a cancellation of the minister's order, contending that it impaired the freedom of expression and of the press. the result of the case depended on the construction of the word 'likely' in section 19(2)(a). there were two possible interpretations. the first is that 'likely' is to be construed as meaning 'probable' thus giving the section a narrow scope of application. the second is that 'likely' is to be construed as meaning 'bare tendency,' thus giving the section a wider scope. the israeli supreme court preferred the former. in stating the ratio decidendi, reference was made to the clause in the declaration of the establishment of the state of israel which was quoted above. great importance was attached to the clause as an interpretative tool as it had been stated to be an "aspiration of the people and their basic credo." 26 this was the reason for the court's decision to restrict as much as possible the interference of the executive with the principles of freedom as they were set out in the declaration of the establishment of the state of israel. some commentators have referred to the decision in ko! ha 'am as creating a "soft legal principle." 27 in the opinion of professor d. kretzmer 28 these 22 1948 1 l.s.i. 4 (1948). 23 h.c. 73/53 (1953) 7 p.d.871. 24 the palestine gazette 1937 sup.i13. 25 ibid 26 h.c.1o/48, zee v. gubernik (1948) 1 p.d.85 at 89. 27 d.kretzmer, "demonstrations and the law" (1984) 19 israel l.rev. 47 at 64. 28 of the hebrew university of jerusalem, ibid 68 the promised constitution of the promised land principles are legal because in the absence of express statutory authority, the executive is bound to act according to these principles. however, these principles are 'soft' because they do not interfere with the doctrine of the supremacy of parliament. the knesset can at any time pass a statute which will restrict these principles. such a statute will not be subjected to judicial review even if it will interfere with these legal principles.29 iii. the enactment of basic laws 1958-present day the next stage in the development of the israeli constitution was the enactment of basic laws of which some provisions are entrenched. thus, for example, sections 430 and 4431 of basic law: the knesset are entrenched in various degrees by requiring special majorities in the knesset for any change of these sections. it remained to be seen whether the courts would review subsequent legislation in the light of the entrenched sections of the new basic law. it took eleven years before the courts were confronted with the problem of reviewing legislation subsequent to basic law: the knesset. in 1969 mr. a. bergman32 submitted a petition to the israeli high court of justice contending that the fmancing law for the next elections 33 was contrary to section 4 of the basic law: the knesset. the section read: "the knesset shall be elected by general, national, direct, equal, secret and proportional elections, in accordance with the knesset elections law; this section shall not be varied save by a majority of the members of the knesset.,,34 mr. bergman contended that the new finance law was disadvantageous to new lists running for the knesset, since it allowed public financial aid only to parties which were represented in the outgoing knesset. this contradicted the requirement that the elections shall be equal, as stated in 29 c.a. 450/70 regozinsky v. state of israel (1972) 26(1) p.d. 129. 30 1958 12 l.s.i. 85 (1958). 31 1958 12 l.s.i. 89 (1958). 32 b.c. 231/73 aharon a.bergman v. the minister of finance & comptroller (1969) 23(1) p.d.693. for an english translation see (1969) 4 israel.l.rev. 559. 33 which were to be held in the same year (elections to the knesset and local authorities in the year 5730 (financing, limitation of expenses and auditing) law, 5729-1969. 34 1958 12 l.s.i. 85 (1958) (emphasis added). 69 denning law journal section 4 of basic law: the knesset. mr. bergman also contended that the new finance law had not received a majority of the votes in the knesset and therefore was illegal. the supreme court upheld the claim of mr. bergman, thus exercising judicial review of legislation which is not consistent with the entrenched section of basic law: the knesset. the decision of the supreme court paved the way for other similar decisions which followed35most of which dealt with section 4 of basic law·: the knesset. the results of the bergman case were threefold. first, it had established, as mentioned, the judicial review of statutes within the context of a contradiction between statutes and entrenched sections of basic laws. secondly, it had qualified the doctrine of the supremacy of the knesset. it'was clear after the bergman case that the knesset can bind itself. thirdly, due to the results of the bergman case the government had approved the drafts of two basic laws which, if enacted, would formally make all basic laws superior to all other legislation.36 these basic laws are: basic law: legislation 37 and basic law: the courts. 38 the soft legal principles which were the outcome of ko/ ha 'am could be seen as "islands" of a written constitution within a system without such a constitution. the entrenched provisions of the various basic laws and the effect of bergman, constitute such "islands" which are not as "soft" as the previous ones. on 3rd.march, 1992 a "continent," rather than an "island" emerged. that "continent" was basic law: freedom of occupation. the purpose of this basic law is to ensure that the freedom of occupation of every citizen or inhabitant of the state will not be restricted, unless for a worthy purpose and to the benefit of 35 e.g. h.c. 246/81 derech eretz v.broadcasting authority (1981) 35(4) p.d.l. 36 at the present time they are still not enacted. 37 section 11 of the draft reads: "a law which amends a basic law, whether expressly or by implication, or which contradicts the provisions of the basic law, is adopted when a majority of the members of the knesset votes in its favour at the final reading, unless there is a contrary provision in this regard contained in a basic law." section 12(a) reads: "no objections shall be raised with regard to the validity of a law except where such an objection claims that the law amends a basic law, or that the recorded number of knesset members voting in its favour did not constitute an adequate majority." 38 section 15(a) of the draft reads: "the supreme court, sitting as the constitutional court, will consider objections claiming that a law amending a basic law, did not receive the required majority; the procedure will be set out in the civil procedure rules." 70 the promised constitution of the promised land the majority. the section which is the most relevant to this discussion, and which has made the greatest contribution to the development of the israeli constitution is section 5 of the basic law which reads: "this basic law may not be changed except by a basic law enacted by a majority of the members of the knesset.,,39 the contribution of this section to the development of the constitution is twofold. first, it does not entrench either a single or a number of provisions of a basic law as does section 4 or 44 of basic law: the knesset. section 5 of basic law: freedom of occupation entrenches the whole of this basic law. this actually grants this basic law a status of a semi-formal constitution. due to the bergman precedent, any other legislation which is in either express or implied contradiction with this basic law, will be subjected to judicial review. however, it is a status of a semi-formal constitution because contradicting subsequent legislation will be subjected to judicial review only within the context of the manner in which it was enacted. there is no provision for judicial review of such legislation purely on the basis of a substantive contradiction with the basic law. secondly, unlike other types of entrenchment of provisions of basic laws, this entrenchment is not made by requiring a special majority but rather by requiring the enactment of another basic law. this method of entrenchment is even more rigid than any requirement of a special majority. however, the effect of this basic law as well as the content of another basic law, namely, basic law:. human dignity and liberty, were significantly diminished by political influence, mainly the political interest of the religious parties. iv. an emerging bill of rights? until 1992, none of the basic laws dealt with fundamental human rights. the reason for this is the opposition ofthe religious parties to a bill of rights (this was also the primary objection to the adoption of a written constitution). the religious parties oppose a bill of rights because it will entail judicial review of statutes which were enacted due to the parliamentary power of the religious parties. a significant portion of these statutes are inconsistent with fundamental freedoms and rights, due to their religious nature. thus, should judicial review be exercised over them, they might be rendered illegal. in 1992, two basic laws concerning fundamental rights were enacted: basic law: freedom of occupation, and basic law: human dignity and liberty. with regard to these two basic laws, two points should be especially noted. the first 39 translation by the authors. 71 denning law journal is that the content of the latter and the entrenchment of both the basic laws, were significantly influenced by political interests. the second is that the effect of these political interests was balanced by the judicial activism of the supreme court of israel. as mentioned above the first version of the basic law: freedom of occupation, was entrenched as a whole. this was because it was assumed that the issues with which this basic law deals were not controversial within the religious-secular debate. it was not too long before it became apparent that the basic law: freedom of occupation does have an affect over religious oriented laws. ill meatrael ltd. v. ministry of commerce and industry, 40 the supreme court decided that restrictions on meat importations on the basis that the meat does not comply with dietary religious (kosher) jewish laws, 41 were in violation of basic law: freedom of occupation. the judgement sparked a political debate which resulted in a political deal under which the basic law is to be re-enacted. section 8 of the new version of the basic law retains the power of the knesset to enact laws contrary to basic law: freedom of occupation provided that it was enacted by an absolute majority, and secondly, that it is expressly stated that it is enacted notwithstanding the rights protected by the basic law. a statute enacted by virtue of this overriding clause shall automatically expire four years after it came into force.42 once this overriding clause was introduced into the new basic law, the knesset enacted the import of frozen meat law 1994 which prohibits the import of non-kosher meat into israel. the religious-secular debate is probably the reason for the lack of entrenchment of basic law: human dignity and liberty. as this basic law was clearly concerned with more controversial issues, it was not entrenched as a whole as was basic law: freedom of occup:ltion. moreover, the rights protected by basic law: human dignity and liberty are far from similar to parallel provisions in other human rights declarations and treaties, such as the european convention of human rights and the universal declaration of human rights. the fundamental rights which the basic law includes are: the right to life, body, dignity, property, liberty of the individual, the right to leave and enter the 40 h.c. 5871/92 (1993) 47(1) p.d.52!. 41 these were mainly against the importation of pork. 42 this is similar to s.33 of the canadian charter of rights and freedoms. 72 the promised constitution of the promised land country, and the right to privacy and personal confidentiality. it is evident that fundamental rights such as freedom of religion and sexual equality were not protected by the basic law due to political pressure exerted by the religious parties. nonetheless, the supreme court, in taking an active stance, mitigated both the lack of entrenchment and the lack of protection of such rights. the lack of protection of various fundamental rights by the basic law was remedied in e1-ai air lines v. danilewitz.43 this was done by including under the general term "human dignity" rights such as equality and freedom of expression. thus, the supreme court held that benefits to which spouses of el-al employees are entitled should also be given to the homosexual partner of an el-al air attendant. the lack of entrenchment of basic law: human dignity and liberty was remedied by a bench of nine judges in late 1995. in united kizrachi bank ltd. v. migdal co.gp. village most of the judges dealt with this question directly. 44 the majority held that both basic law: human dignity and liberty and basic law: freedom of occupation have the status of a fonnal constitution and are, therefore, superior to ordinary legislation. as a result, the courts have the power to review such legislation and to detennine whether it is illegal on the basis that it is inconsistent with the basic laws. the effect of this judgement is that all basic laws seem to enjoy the status of a formal constitution, irrespective of whether they are entrenched in whole or in part. this is a very dramatic decision, because the knesset never expressly stated that the basic laws ought to have such a status at this stage in the development of the israeli constitution. at the present time this is the current status of the emerging israeli constitution. in addition to the aforementioned basic laws, the following basic laws have been enacted: basic law: israel lands 1960; basic law: the president of the state 1964; basic law: the government 1968; basic law: the state economy 1975; basic law: the anny 1976; basic law: jerusalem, capital of israel, 1980; basic law: judicature 1984; and basic law: the state comptroller 1988. one can humbly predict that two factors will contribute to the further development of the israeli constitution. the first is the enactment of the drafts of basic law: legislation, and basic law: the courts. such an enactment will actually be the establishment of the fonnal constitution of the state of israel. the 43 h. c. 1107/94 (1994) not yet reported. 44 c.a.6821/93 (1995) 49(4) p.d.22!. 73 denning law journal second factor is not as dramatic as the first one but not less significant. it is the recent appointment of justice barak, a man known for his activist approach, to the position of the president of the israeli supreme court of justice. v. conclusion in summary, the state of israel was envisaged as a democratic state with a written constitution. this is apparent from the declaration of the establishment of the state of israel. however, due to political reasons, the formation of such a constitution was postponed indefinitely. instead, a compromise between those who favour and those who oppose a written constitution was reached. under the famous harrari resolution, the constitution was to be adopted in a piecemeal fashion. each "chapter" of the constitution dealt with different aspects of the constitutional order of the state. before the enactment of any such chapters, the supreme court had demonstrated that it would enforce constitutional values, even in the absence of a written constitution, or part thereof. once basic laws were enacted, their constitutional status was left uncertain. some were entrenched in part, and others were entrenched as a whole. the content, as well as the degree of entrenchment of these basic laws, were significantly influenced by the religious secular debate which has been going on in israel since the very first day of its existence. what seems to be balancing these effects is the activist approach of the israeli supreme court which recently stated that basic law: freedom of occupation, and basic law: human dignity and liberty have the status of a formal constitution and therefore renders subsequent legislation susceptible to judicial review. what remains to be seen is whether this activist approach will be applied to other basic laws, and whether the knesset will take the necessary steps for creating a written constitution in israel. namely the enactment of basic law: legislation, and basic law: the courts. 74 first by fax: 020 7230 7571 the denning law journal 95 prosecuting alleged israeli war criminals in england and wales daniel machover and kate maynard* the criminal justice system in england & wales is faced with allegations made by palestinians of israeli war crimes contrary to the geneva conventions act 1957 (and which in some cases also involve allegations of torture contrary to s134 criminal justice act 1988) – how will it cope with this challenge? introduction and background to issues in 2005, the authors1 worked with lawyers from the palestinian centre for human rights (pchr)2, on behalf of mutual clients, on files of evidence for use in england and wales relating to alleged “grave breaches” of the fourth geneva convention 1949,3 including torture (which is also an international crime regardless of the existence of a military occupation).4 evidence files * daniel machover is a partner and kate maynard an assistant solicitor at hickman and rose solicitors in london. 1 the authors, daniel machover and kate maynard, are extremely grateful to sonya shah, formerly a paralegal at hickman and rose solicitors and currently an llm. student at london university, for her significant contribution and research work. any errors or omissions are of course the sole responsibility of the authors. 2 pchr is an independent palestinian human rights organization based in gaza city. the centre enjoys consultative status with the ecosoc of the united nation. it is an affiliate of the international commission of jurists-geneva, the international federation for human rights (fidh) – pairs, and the euro-mediterranean human rights network copenhagen, arab organization for human rights – cairo. it is a recipient of the 1996 french republic award on human rights and the 2002 bruno kreisky award for outstanding achievements in the area of human rights. more information about pchr can be found on its website at: www.pchrgaza.org. 3 convention (iv) relative to the protection of civilian persons in time of war. geneva, 12 august 1949, vol 75 unts 287 (ivgc). 4 israel signed the un convention against torture and other cruel, inhuman or degrading treatment or punishment 1984, g.a. res 39/46 39 un gaor supp (no. 51) un doc. a/39/51 (1984), entered into force in 1987, vol 1465 unts 85 (uncat) on 22 october 1986 and ratified it on 3 october 1991. the convention entered into force in israel on 2 november 1991. article 5 (2) of uncat requires each state party to take measures to establish universal jurisdiction over persons suspected of torture, unless it extradites the suspect. the uk ratified uncat on 8 december 1988 and it took effect on 7 january 1989. section 134 of the criminal justice act 1988 http://www.un.org/documents/ecosoc.htm http://www.icj.org/ http://www.fidh.org/ http://www.fidh.org/ http://www.euromedrights.net/ http://www.euromedrights.net/ http://aohr.org/ http://www.pchrgaza.org/ the denning law journal 96 relating to gaza cases were handed over to the anti-terrorist and war crimes unit of the metropolitan police on 26 august 2005.5 naturally, in such cases, lawyers in england and wales are reliant to a great extent on the collection of evidence by lawyers and other human rights defenders in the occupied palestinian territory (opt). the cases discussed here therefore have their origins in work carried out by many such people, primarily pchr, led by raji sourani,6 and by a variety of other lawyers, ngos, academics and researchers working in the opt. without this professional, dedicated and often dangerous work, it would simply not have been possible to credibly pursue cases in england and wales. grave breaches are criminalised in england and wales under the geneva conventions act 1957 (the 1957 act).7 the 1957 act was introduced in order to comply with this country’s treaty obligations to provide domestic laws to enable “universal jurisdiction” to be exercised over the grave breaches specified in the four geneva conventions of 1949. the alleged victims only sought remedies in england and wales because they were denied any remedy through the israeli legal system. (a) the allegations before considering in detail the legal issues mentioned above it will be helpful to set out more details of the type of cases under review and how they have been dealt with so far in england and wales. the following cases, which all identify major general (reserve) doron almog8 as a suspect, demonstrate very well the allegations made by palestinians under occupation: makes it a criminal offence for a public official or person acting in an official capacity to commit torture or cruel, inhuman or degrading treatment or punishment, whatever his nationality and wherever in the world he commits the offence. 5 in the absence of a national police force, the metropolitan police service (mps), as the largest police authority in the country, has traditionally provided a ‘home’ for major national/international police operations. in the early 1990s the mps established a centrally funded war crimes unit to investigate cases under the war crimes act 1991, regarding allegations dating back to world war ii. that unit was disbanded in 1999, but a ‘dedicated section’ of the anti-terrorist unit of the mps continued to have responsibility to investigate war crimes and related international crimes – see hansard hc 14 june 2005 c296w. 6 raji sourani is a practising lawyer and the director of pchr. he has been detained at various times by both israel and the palestinian authority. 7 1957 c 52. 8 goc southern command of the israel defence forces (idf) from 8 december 2000 to 7 july 2003. the denning law journal 97 1. the demolition of 59 houses in rafah, gaza strip, on 10 january 2002 2. the killing of noha shukri al makadma on 3 march 2003 as the result of a punitive house demolition 3. the killing of mohamad abd elrahman on 30 december 2001 4. the dropping of a one ton bomb on the al daraj neighbourhood of gaza city on 22 july 2002 mr almog was due to speak at a synagogue in solihull, birmingham, on 11 september 2005. after having received the files of evidence as to his criminal liability for the above alleged offences, the police failed to make a decision whether they would arrest doron almog under their “general arrest” powers. however, they adopted a neutral stance in relation to the complainants’ application to bow street magistrates’ court for an arrest warrant. that step does not require the consent of the police, the director of public prosecutions (dpp) or the attorney general (s25 prosecution of offences act 1985), whereas a prosecution under the 1957 act in principle requires all their involvement, and in practice the attorney general must provide his consent for proceedings to be instituted.9 (b) the warrant a hearing took place at bow street magistrates’ court on 9 september 2005, before senior district judge timothy workman. the application was for warrants in all four of the above cases in which doron almog was named as a suspect. the court was provided with all of the evidence that had been supplied to the police in relation to those cases. the senior district judge adjourned the matter overnight and on the morning of saturday, 10 september, he issued a warrant for the arrest of doron almog (backed for bail but with stringent conditions) in relation to the complaint regarding the 59 house demolitions. the senior district judge indicated that the other cases would be more appropriately proceeded with by giving the police the opportunity to interview doron almog under caution. (the issue of an arrest warrant in a case precludes that step.) it appears that on the afternoon of 11 september 2005, the police waited at the immigration desk at heathrow airport for doron almog to disembark from an el-al flight that had arrived some time earlier, but when he did not emerge 9 the prosecution of offences act 1985 created the crown prosecution service (cps), which is headed up by the dpp. the attorney general is a member of the cabinet of the government of the day, has final responsibility for enforcing criminal law and ‘superintends’ the dpp section 1a (3) of the 1957 act provides that ‘proceedings for an offence shall not be instituted…except by or with the consent of the attorney general’. the denning law journal 98 the police failed to board the ‘plane to arrest him, as they were perfectly entitled to do.10 an article “posted” at 4.15pm on 11 september 2005 on the website of the israeli newspaper “ha’aretz” first reported the news that doron almog had evaded arrest by remaining on the ‘plane until it returned to israel. subsequently, in an interview on channel 4 television news, on the evening of tuesday, 13 september, doron almog stated that the flight crew initially asked him to wait on the ‘plane and that he was then told that the military attaché to the israeli embassy was coming to speak to him. mr almog said that he telephoned the attaché on his mobile ‘phone but soon afterwards the attaché came onto the ‘plane to brief him in person. he stated that the attaché told him “there is a warrant arrest (sic) against you waiting at the immigration office and we advise you…to stay aboard and get back to israel”. (this interview echoed comments that mr almog was already reported to have made to israeli journalists, as published in the hebrew press.) (c) the aftermath the police were asked to: 1. urgently investigate the leak of the existence of the warrant; 2. explain why the officers did not board the aeroplane to arrest mr almog when he did not disembark as expected; 3. investigate the role of staff from the israeli embassy in assisting mr almog to escape arrest; and 4. make the arrest warrant international/european. at the time of writing (january 2005) none of the above had been conducted. indeed the fourth request quickly became redundant when the warrant was formally cancelled by senior district judge workman on 14 september 2005 the failure of the police to address the remaining issues is now the subject of a police complaint that the authors have asked the police to refer for independent investigation by the independent police complaints commission. 10 as confirmed by hazel blears, home office minister, hansard hc 25 oct 2005 c344w, under the police and criminal evidence act 1984 (pace), s 17(1)(a), a constable may enter and search any premises for the purpose of executing a search warrant of arrest issued in connection with or arising out of criminal proceedings. an aircraft is specified under the meaning of 'premises' by pace, s 23(a). the denning law journal 99 further, the british government has decided to review the law following lobbying by the government of israel to try to ensure that in future similar arrest warrants cannot be issued at the request of complainants.11 the law12 some historical legal perspective is needed to fully appreciate the significance of the above events. the importance to civilians under occupation of the practical application of “universal jurisdiction” cannot be underestimated. indeed those who drafted ivgc were conscious of the vulnerability of civilians under occupation. when ivgc was negotiated, the actions of germany and japan as military occupiers were fresh in the minds of all concerned. third parties (that is, including those not involved in a particular conflict) were given legal obligations so that they might effectively “hold the ring” between the military occupier and the (otherwise unrepresented) civilians under occupation. the relevant provisions of the fourth geneva convention 1949 are as follows: “article 146 the high contracting parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present convention defined in the following article. each high contracting party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. it may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another high contracting party concerned, provided such high contracting party has made out a prima facie case. each high contracting party shall take measures necessary for the suppression of all acts contrary to the provisions of the present convention other than the grave breaches defined in the following article. 11 see hansard: hc 29 nov 2005 c298w and hc 7 dec 2005 c1363w. 12 see also, daniel machover and kate maynard ‘the uk's duty to 'universal jurisdiction' the times october 4 2005. the denning law journal 100 in all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by article 105 and those following of the geneva convention relative to the treatment of prisoners of war of august 12, 1949. article 147 grave breaches to which the preceding article relates shall be those involving any of the following acts, if committed against persons or property protected by the present convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.” the very first words of the second paragraph of article 146 above (i.e. “each high contracting party”) make it clear in the context of this convention that article 146 includes non belligerent state parties to the convention, not just states that are involved in the conflict in question. moreover, the phrase “each high contracting party” is used elsewhere in the convention, making it very clear that those who drafted it did really mean to address every high contracting party. although it is unnecessary to have recourse to the travaux preparatoires (i.e. as a “supplementary means of interpretation” of this provision, pursuant to article 3 of the vienna convention on the law of the treaties 196913), the discussions of those who drafted the convention makes this interpretation abundantly clear. debates concerning an italian proposal to limit this provision to the parties to a conflict, and the way that proposal was rejected, also make it very clear that article 146 was drafted to achieve “true universality”.14 the three distinct (and positive and interdependent) obligations imposed on each high contracting party, and the practical application of these duties in britain, are illustrated below. 13 vol 1155 unts 331. 14 this is a phrase used in the war office, the law of war on land, being part iii of the manual of military law, h lauterpacht (ed) 1958. the denning law journal 101 (a) the duty to enact legislation the geneva conventions bill was introduced first in the house of lords.15 on 25 june 1957, the then lord chancellor, viscount kilmuir said the following: “the conventions require the parties either to try in their own courts persons accused of these offences, wherever the breaches are committed and regardless of the nationality of the accused, or else to hand them over to another party to the conventions for trial. [t]he offences . . . shall be triable in the uk wherever and by whomsoever the offences were committed. this is an unusual extension of our jurisdiction, but it is made necessary by the special circumstances against which we are providing.” 16 later in the debate, viscount alexander of hillsborough (opposition spokesman) said the following: “i was going to say a word or two about the question of the changes in powers in trying in our courts certain of the offences committed by persons of other nationalities; but after what the noble and learned viscount, the lord chancellor has said, there is no need to do anything of that kind. i feel most strongly and i am sure that your lordship’s house will feel, that whilst we know that when a great and savage war occurs conventions are often overridden, nevertheless conventions have played their part when they have been almost universally observed by those engaged in the strife . . . so i think we are taking a good step in the right direction in seeking for this ratification.” in committee, on 2 july 1957, the bill was amended unopposed to include “persons who aid, abet or procure” grave breaches. when the matter went before the house of commons on 12 july 1957, the joint under secretary of state for the home department, a mr simon mp, noted the following: “this bill marks a considerable departure in our criminal law. it makes liable to the criminal jurisdiction of our domestic 15 in accordance with the principle established in pepper v hart [1993] ac 593. 16 hansard, hl deb 25 june 1957 c348. the denning law journal 102 courts persons accused of certain offences wherever the breaches are committed and regardless of the nationality of the accused. there is very limited precedent for such a provision in our law but we believe that such a departure is necessary, if we are to honour certain new types of international obligations now recognised as morally binding.”17 in the same debate, sir frank soskice accepted in principle “the departure from the criminal law which this bill involves” and recognised that britain should be “ready to shoulder the obligations” imposed by the geneva conventions. there is nothing in the debates held in parliament that indicates that it was the intention of parliament that either the victim or the alleged perpetrator should be a british national or that there had to be a direct connection between the offences alleged and england and wales. furthermore it is well established that at least grave breaches of the geneva conventions have also risen to the status of jus cogens offences.18 such offences cannot be derogated from or modified unless by similar customary law.19 it is suggested that jus cogens offences also attract universal jurisdiction20 and that as a consequence of recognising an offence as an elevated level of offence, it carries a duty to either prosecute or extradite those accused of carrying out such crimes.21 (b) the duty to search the authoritative commentary on the fourth geneva convention published by the international committee of the red cross (edited by dr jean pictet) says as to the active duty to search for alleged offenders of all nationalities: “as soon as a contracting party realises that there is on its territory a person who has committed . . . a [grave] breach, its duty is to ensure that the person concerned is arrested and prosecuted with all speed. the necessary police action should 17 hansard, hc volume 573, p 716. 18 see t meron human rights and humanitarian norms as customary law (oxford university press, 1989) pp 41-62. 19 see i brownlie principles of public international law (oxford university press, 6th ed, 2003) p 488. 20 kenneth randall ‘universal jurisdiction under international law’ 66 tex l rev 800–815. 21 m cherif bassiouni ‘international crime: jus cogens and obligatio erga omnes’ (1996) 59 law & contemp probs 63, at 65-66. the denning law journal 103 be taken spontaneously, therefore, not merely in pursuance of a request from another state.” 22 the icrc commentary confirms that a high contracting party is not entitled to sit back and do nothing but has an active obligation to search. it follows that this duty should include maintaining border controls that enable a state to ensure that known suspects seeking to enter the jurisdiction are arrested on arrival. in the british context, common sense dictates that the necessary spontaneous police action can only occur where alleged war crimes have been investigated to the point where the police are able to decide whether there are reasonable grounds to arrest a suspect who arrives in or is discovered in the jurisdiction. for the authors, the deterrence value of this article hinges largely on this obligation. there is certainly no question under the convention that the nationality of the individual concerned or of any victim is relevant to the exercise of jurisdiction. the icrc commentary, following the passage referred to above, states: “the court proceedings should be carried out in a uniform manner whatever the nationality of the accused. nationals, friends, enemies, all should be subject to the same rules of procedure and judged by the same courts.” (c) the duty to prosecute or extradite the unequivocal wording of the duty of each high contracting party in article 146 of ivgc indicates that once a suspect is located in the territory of a high contracting party, the state has a duty to either prosecute or extradite the alleged war criminal to enable a prosecution.23 the duty to “prosecute or extradite” has been emphasised by the un on several occasions. notably, the un general assembly resolution principles of international co-operation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity24 specifically states: 22 icrc volume iv geneva convention relative to the protection of civilian persons in time of war: commentary (geneva, 1958) p 598. although commonly referred to as ‘pictet’s commentary’ the commentary on ivgc was written mainly by oscar uhler and henri coursier, with the participation of f siordet, c pilloud, j-p schoenholzer, rj wilhelm and r boppe. 23 m scharf ‘the letter of the law: the scope of the international legal obligation to prosecute human rights crimes’ (1996) 59 law & contemp probs 41, at 43 24 ga res 3074 (xxviii), 28 gaor supp no (30a), un doc a/9030/add 1 (1973) the denning law journal 104 “war crimes and crimes against humanity, wherever they are committed, shall be subject to investigation and the persons against whom there is evidence that they have committed such crimes shall be subject to tracing, arrest, trial and, if found guilty, to punishment.”25 the resolution goes on to provide that: “states shall not take any legislative or other measures which may be prejudicial to the international obligations they have assumed in regard to the detection, arrest, extradition and punishment-of persons guilty of war crimes and crimes against humanity.”26 further, according to the general assembly resolution adopted by the un, two years earlier, in 1971, a refusal by states to co-operate in fulfilling their obligations under the geneva conventions including the arrest, extradition, trial and punishment of those accused of war crimes, “is contrary to the general purposes and aims of the un charter and recognized norms of international law.”27 arguably, the maxim aut dedere aut judicare28 also applies to grave breaches/war crimes by virtue of their nature as universally reprehended offences and because such offences are “of concern to all states and all states ought therefore to cooperate in bringing those who commit such offences to justice.”29 the practice of states is not in fact generally consistent with this duty,30 but there is nonetheless a strong case for assuming that there is a customary international law duty to prosecute war crimes in light of existing treaties, declarations and practice in relation to crimes committed during the second world war.31 25 ibid paragraph 1. 26 ibid paragraph 8. 27 ga res 2048 (xxvi), 27 un gaor supp (no 29), un doc a/8429 (1971) 28 see generally m. cherif bassiouni and edward m. wise aut dedere aut judicare the duty to extradite or prosecute in international law (m nijhof, 1995). 29 ibid p 24. 30 see m cherif bassiouni ‘universal jurisdiction for international crimes: historical perspectives and contemporary practice’ 42 va j int’l l 81 at 117 and c edelenbos ‘prosecution of human rights violations’ (1994) 7 ljil 5 at 15-16 & 20. 31 ibid edelenbos at 15. the denning law journal 105 in relation to torture, it is argued that uncat32 specifically imposes an obligation to either prosecute or extradite those accused of committing torture by virtue of article 7.1 of the torture convention. this article states: “the state party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.” this position was affirmed by lord brown-wilkinson in the pinochet (no. 3) case33 when he stated: “the purpose of the convention was to introduce the principle of aut dedere aut punire – either you extradite or you punish.” furthermore, the wording of article 7.1 of the torture convention clearly indicates that the obligation arises when an alleged offender is found in the territory of the state party and is thus capable of providing for universal jurisdiction. the courts of england and wales therefore have universal jurisdiction over acts of torture under the criminal justice act 1988, s 134 (which covers acts committed “in the uk or elsewhere”). there is no requirement for any connection with england and wales of the defendant, victim or suspects. impunity in israel of course, it is always to be hoped that a country engaged in a military occupation will uphold civilised standards and avoid the temptation to take advantage of the overpowering strength it wields over the civilians under its control. occupying armies and the military and civilian legal systems of the occupying power should be able to bring to account its own “war criminals”. unfortunately, the record shows that most alleged grave breaches in the opt are not even investigated as such by israel. they are either ignored or officially sanctioned as legal in the teeth of international legal opinion to the contrary. for many years, most cases of punitive house demolitions, killings and torture in the occupied palestinian territories have not been the subject of 32 see n 4 above. 33 regina v bow street stipendiary magistrates and others, ex parte pinochet ugarte (no 3) [2000] 1 ac 147 per lord brown-wilkinson at 200. the denning law journal 106 criminal investigations, let alone prosecutions. the failures of the israeli legal system are well documented by now but can be illustrated briefly by some of the cases in point (in relation to house demolitions and assassinations). (a) punitive house demolitions according to pchr, between 29 september 2000 and 31 january 2005, more than 2,702 houses in the gaza strip were completely demolished by the israeli occupying forces since the outbreak of the (second) intifada, rendering thousands of palestinian civilians homeless.34 b’tselem put the figure of house demolitions in the whole of the opt from september 2000 to november 2004, as 4,170.35 according to a policy brief by harvard university to the united nations information system on the question of palestine (unispal),36 house demolitions broadly come within three categories: 1. first, houses are demolished by israeli occupation forces because a building permit was not sought prior to their construction, or for some other technical breach of applicable administrative law. 2. second, houses are demolished as part of military operations. such destructions are arguably necessary during armed hostilities and fall to be judged under the rules relating to military necessity. 3. finally, demolitions occur outside the scope of military operations or israeli administrative power in the opt. these demolitions are purportedly a response against persons suspected of taking part in or directly supporting criminal or guerrilla activities. these demolitions are referred to routinely as “punitive demolitions”. the distinction in practice is however often difficult to determine, particularly between 2 and 3 above. a series of cases in the supreme court of israel confirm that the domestic courts do not regard the policy of punitive house demolitions as unlawful.37 34 http://www.pchrgaza.org/library/alaqsaintifada.htm 35http://www.btselem.org/english/publications/summaries/200411_punitive_house_d emolitions.asp 36http://domino.un.org/unispal.nsf/0/13f65639b6eb7b9485256ea600641d69?open document 37 eg almarin v idf commander in gaza strip hcj 2722/92 (the authority of the commander extends to the destruction of those parts of the property that are owned or used by members of the family of the suspect or by others), janimat v oc central command hcj 2006/97 (the court refused to interfere with the discretion of the http://www.pchrgaza.org/library/alaqsaintifada.htm http://www.btselem.org/english/publications/summaries/200411_punitive_house_demolitions.asp http://www.btselem.org/english/publications/summaries/200411_punitive_house_demolitions.asp http://domino.un.org/unispal.nsf/0/13f65639b6eb7b9485256ea600641d69?opendocument http://domino.un.org/unispal.nsf/0/13f65639b6eb7b9485256ea600641d69?opendocument the denning law journal 107 the authority for punitive house demolitions stem from the defence (emergency) regulations 1945 (according to israeli courts that insist the regulations are still good law). these regulations were introduced into the legal structure of palestine by britain, in response to resistance to british rule. regulation 119(1) states: “a military commander may by order direct the forfeiture to the government of palestine of any house, structure, or land from which he has reason to suspect that any firearm has been illegally discharged, or any bomb, grenade or explosive or incendiary article illegally thrown, or of any house, structure or land situated in any area, town, village, quarter or street the inhabitants or some of the inhabitants of which he is satisfied have committed, or attempted to commit, or abetted the commission of, or been accessories after the fact to the commission of, any offence against these regulations involving violence or intimidation or any military court offence; and when any house, structure or land is forfeited as aforesaid, the military commander may destroy the house or the structure or anything on growing on the land.” demolitions purportedly required by military necessity must be judged by internationally accepted criteria (i.e. as set out in the above policy brief to unispal): 1. the individual house must offer an essential and immediate contribution to the enemy’s military operation and, therefore, endanger the security of the occupation forces; and 2. the demolition of the house must, at the time, be an adequate response to that specific threat and there must be no less intrusive response possible; and 3. the demolition of the house must offer concrete military advantages that outweigh the damage caused to the civilian asset and its consequences on the life of palestinian individuals and families. the facts of each case must meet this (relatively high) threshold, otherwise the house demolition in question is not a militarily necessary. two cases involving house demolitions were presented to the police and bow street magistrates’ court in relation to doron almog, alleging the grave military commander and stop the house demolition ordered by the military commander of the west bank). the denning law journal 108 breach of “extensive destruction of property not justified by military necessity and carried out unlawfully and wantonly”. one involved the demolition of 59 houses in rafah by bulldozer on 10 january 2002. the idf gave conflicting and inconsistent reasons for these demolitions, including that the operation was a retaliatory measure for the (unrelated) death of two israeli soldiers,38 to weaken the fear of the existence of tunnels39, and for purported reasons of military necessity. the other case involved the punitive demolition of the house of the family of a suspected suicide bomber by dynamite, which partially demolished a neighbouring house killing noha shukri al makadma who was in her ninth month of pregnancy.40 the victims in both of these cases claimed that these demolitions were illegal, but no investigation took place. pchr attempted to instigate investigations into both of these cases. in relation to the case of the 59 house demolitions, pchr wrote to the idf legal advisor requesting a criminal investigation, but no reply was received. in relation to the house demolition that killed noha shukri al makadma, pchr wrote to the legal advisor of the idf requesting an inquiry and for disciplinary measures to be brought against those responsible. in its reply, the ministry of defence expressed regret for the “injuries of guiltless people” but rejected the request for an inquiry. evidence of two other similar punitive house demolitions by dynamite in the gaza strip conducted in the four months prior to the death of noha shukri al makadma and ending in civilian deaths, were also presented to the british police as “evidence of similar fact”. in both these cases pchr wrote to the legal advisor of the idf requesting criminal investigations and asking for the idf to change their practices to avoid further deaths of innocent civilians. in one case no reply was ever received. in the other, without any obvious inquiry, the reply stated that there was “no suspicion of any breach of duty by the idf to warrant the opening of a criminal investigation”. on 17 february 2005, defence minister shaul mofaz announced the end to the policy of demolishing the houses of “terrorist’s” families.41 however, the 38http://web.archive.org/web/20031011141900/www.idf.il/english/announcements/200 2/january/11.stm 39http://web.archive.org/web/20030807150540/www.idf.il/english/announcements/200 2/january/27.stm 40 in the case of the killing of noha shukri al makadma, it was alleged that the property destruction was extensive as part of a wider policy of ‘extensive’ punitive house demolitions of the government of israel and implemented by military commanders. it was also alleged that her death also amounted to the grave breach of wilful killing. 41 see the official idf announcement: http://www1.idf.il/dover/site/mainpage.asp?clr=1&sl=en&id=7&docid=37885 http://web.archive.org/web/20031011141900/www.idf.il/english/announcements/2002/january/11.stm http://web.archive.org/web/20031011141900/www.idf.il/english/announcements/2002/january/11.stm http://web.archive.org/web/20030807150540/www.idf.il/english/announcements/2002/january/27.stm http://web.archive.org/web/20030807150540/www.idf.il/english/announcements/2002/january/27.stm http://www1.idf.il/dover/site/mainpage.asp?clr=1&sl=en&id=7&docid=37885 the denning law journal 109 demolition of palestinian homes purportedly for reasons of military necessity has not abated. (b) targeted assassinations according to pchr, from 29 september 2000 to 31 january 2005, israeli occupying forces and settlers killed 2,714 palestinian civilians in the opt. 418 (14%) were killed in assassination operations, and of these, at least 154 were bystanders, of whom 44 were children.42 evidence in relation to one of these assassination operations was presented to the british police. this was the well known case of the assassination of salah shehadeh. between 11.30 pm and midnight on 22 july 2002, an israeli f16 fighter plane dropped a one ton bomb on the al daraj neighbourhood of gaza city (“the al-daraj bombing”). the target of the bombing was the house of shehadeh, and it was a direct hit. however, his house was in one of the most densely populated residential areas on earth. in total, fifteen people died in the blast. up to 150 people received injuries, some of them serious and permanent. eight houses in the vicinity of the bombing were completely destroyed and a further nine partially destroyed. a further twenty one houses received moderate damage. the idf spokesperson’s announcement of 23 july 2002 stated that: “the idf attack last night was directed at salah shehade and him alone. the strike was accurate, carried out using designated technology. the objective is to thwart future and upcoming terror activities by attacking the source itself, namely shehade. there was no intention of harming members of his family or other civilians.”43 the “yesh gvul” movement in israel filed a petition in the israeli high court on 30 september 2003, asking the court to require the attorney general and the military advocate general to mount a criminal investigation with a view to putting on trial all those in the command chain of the bombing.44 42 http://www.pchrgaza.org/intifada/killings_stat.htm 43http://web.archive.org/web/20030807154927/www.idf.il/english/announcements/200 2/july/23.stm 44 the yesh gvul petition is against former prime minister ariel sharon, former defence minister binyamin ben eliezer, former chief of staff moshe ya’alon, the present chief of staff and former air force commander dan halutz, former attorney general elyakim rubinstein, former judge advocate general menachem finkelstein and others (yoav hess et al v judge advocate general et al, hcj case 8794/03). http://www.pchrgaza.org/intifada/killings_stat.htm http://web.archive.org/web/20030807154927/www.idf.il/english/announcements/2002/july/23.stm http://web.archive.org/web/20030807154927/www.idf.il/english/announcements/2002/july/23.stm the denning law journal 110 the state of israel (respondent) maintained that the assassination itself was lawful and that the military operation was proportionate to the legitimate aim of killing shehadeh. it stated that the potential for the death of civilians and the destruction of property was considered before going on to take the risk, and ordering the bombing mission: “it is important to emphasize that one of the central considerations, which were accounted for throughout all planning stages of the operation against shehadeh and its approval was the proportionality consideration – the obligation to make sure that hitting shehadeh would not lead to hitting the civilian population in his vicinity, disproportionate to the military aims the operation set out to achieve. the discussions largely dealt with the subject of hitting civilians, which may be a result of attacking shehadeh. “after the discussion for instance, it had been decided to carry out the attack in the late hours of the evening (close to midnight), when pedestrians would not be expected to move around the street close to the house of shehadeh. “also upon such consideration it had been decided to use one bomb of 1000 kg (which was the quantity of explosives required in order to achieve in reasonable probability the aim of the operation) and not two bombs of 500 kg each, because the use of two bombs would increase considerably the risk of missing the target and as a result endangering a building close to that of the intended target with a direct hit. “at the end, after receiving precise intelligence information about the hiding place of shehadeh, the execution of the operation had been decided according to the abovementioned outline. this decision was taken at the highest level, having described the importance of stopping the activity of shehadeh, despite the information and estimates of the damages to other people, which may be caused as a result of the attack.” 45 after the respondent replied, on 3 march 2004, the court suspended the case, pending a decision on another petition (filed by the public committee 45 hcj 8794/03 yoav hess v judge advocate general; response on behalf of the state attorney’s office (translation from hebrew, all emphases in the original). the denning law journal 111 against torture in israel in january 2002) challenging the lawfulness of the assassination policy of the state of israel.46 on 16 february 2005, a hearing of the “assassination policy” petition was held, and that petition was itself adjourned indefinitely as a result of prime minister sharon’s commitment at the sharm-el sheikh summit of 8 february 2005, to suspend the policy of assassinations (“pre-emptive liquidations”).47 the yesh gvul movement wrote to the high court requesting the petition for a criminal investigation into the bombing to be re-opened. yesh gvul requested a hearing and the state was given to 15 june 2005 to respond. a hearing took place on 5 september 2005, when the case was adjourned indefinitely (as in the “assassinations policy” case). during the course of september 2005, advocates for the petitioners asked for a hearing on the assassination policy case, in response to the public resumption of that policy by the idf. during the course of november 2005, the state attorney’s office agreed that both petitions should be restored for a hearing at the high court. on 11 december 2005, a hearing of both petitions was held, and the high court ruled that the shehadeh petition is dependent on the outcome assassination petition. the court gave the state attorney’s office 20 days to submit further legal arguments, but as of 9 january 2006, he had not done so. meanwhile, the international view of the al-daraj bombing was that it was unlawful and disproportionate. this view is certainly held by the british government. the international committee of the red cross (icrc) issued a press release of 23 july 2002, entitled “civilians must not be attacked” 48 several members of the un security council condemned the bombing in those terms, including jack straw, the british foreign secretary, who was in the chair, at its meeting on 24 july 2002.49 before travelling to the un, jack straw had told the house of commons that he would ensure that sir patrick cormack’s views “which i think the whole house shares, about the unjustified and disproportionate nature of the attack and its consequences are conveyed to the ambassador and, through him, to the israeli government.”50 similarly, after the assassination of the spiritual leader of hamas, sheikh yassin, by the government of israel, jack straw confirmed that the british 46 hcj 769/02. 47 see the pcati press release: http://www.stoptorture.org.il/eng/press.asp?menu=6&submenu=1&item=237 48 http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/5cbjgj 49http://domino.un.org/unispal.nsf/0/604c82baa09d068e85256c1a0064bda3?open document 50 hansard, hc deb 23 jul 2002 c840. http://www.publications.parliament.uk/pa/cm200102/cmhansrd/vo020723/debtext/2072 3-03.htm http://www.stoptorture.org.il/eng/press.asp?menu=6&submenu=1&item=237 http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/5cbjgj http://domino.un.org/unispal.nsf/0/604c82baa09d068e85256c1a0064bda3?opendocument http://domino.un.org/unispal.nsf/0/604c82baa09d068e85256c1a0064bda3?opendocument http://www.publications.parliament.uk/pa/cm200102/cmhansrd/vo020723/debtext/20723-03.htm http://www.publications.parliament.uk/pa/cm200102/cmhansrd/vo020723/debtext/20723-03.htm the denning law journal 112 government considered the policy of “so-called assassinations – straightforward killings”as “unlawful, unjustified and self-defeating, and they damage the case that israel makes in the world. the fact that the killings led to the deaths of not only those whom israel holds responsible for terrorism, but entirely innocent bystanders, including children, simply emphasises the unlawful nature of that approach, and its counter-productive effect.”51 despite the international view taken towards the criminal nature of the acts described above, it is clear that a climate of impunity has taken hold in israel and its occupying army, that is unchecked by its own criminal or civil justice system. one of the few ways to combat impunity is the practical application of universal jurisdiction. exercising universal jurisdiction over israeli suspects certainly where war crimes, genocide and crimes against humanity are concerned, instead of individual countries doing their duty, in the few cases where international consensus has been possible, a “pooling of resources” has been achieved through the creation of ad hoc international criminal tribunals set up under resolutions of the un security council. there is no chance of such an ad hoc tribunal being established in the foreseeable future in the case of israel, as the us would veto such a proposal at the un security council. furthermore, the international criminal court cannot deal with alleged israeli war crimes as israel has refused to sign up to it. criminal trials in the domestic courts of third-party states (those remote from the conflicts in question) since 1949 might have deterred many war crimes. however, many alleged crimes in, for example, the occupied territories, kuwait and east timor have gone unchallenged across the world. israelis, iraqis and indonesians should have been arrested and tried in other countries, to ensure legal accountability but also to deter criminality. individual states have lacked the political will to prosecute foreign war criminals. countries have resisted getting “involved”, even though they have a legal duty to “seek out and prosecute” alleged war criminals and either prosecute or extradite those accused of committing offences contrary to 51 hansard, hc deb 30 march 2004 c1043. http://www.parliament.the-stationeryoffice.co.uk/pa/cm200304/cmhansrd/vo040330/debtext/40330-01.htm http://www.parliament.the-stationery-office.co.uk/pa/cm200304/cmhansrd/vo040330/debtext/40330-01.htm http://www.parliament.the-stationery-office.co.uk/pa/cm200304/cmhansrd/vo040330/debtext/40330-01.htm the denning law journal 113 uncat. arguably, a continuing failure to comply with (or even accept) the duty to prosecute or extradite those suspected of committing serious international crimes, not only will this frustrate all attempts to bring such alleged offenders to justice but it will bolster the sense of impunity of such persons.52 the british police have discretion as to whether or not to investigate particular criminal allegations. that discretion has to be exercised lawfully. the law of england and wales does not entitle the police a “get out clause” not to investigate any allegations of such offences, as that would amount to an absolute discretion to ignore the duty to uphold the law. so, which cases should it investigate? what is the future for universal jurisdiction in england and wales? quite simply, it the authors’ view that, for all the reasons given above, the police need to allocate resources to investigate credible allegations of war crimes and torture. in the past the police were given resources specifically to pursue investigations under the war crimes act 1991 (the 1991 act). more than £11 million was reportedly spent by the home office (the majority of which was allocated to the police) on the investigation of alleged war criminals resident in britain, resulting in only two prosecutions and only one conviction.53 such cases of war crimes were specifically funded by central government over an extended period. the reported cost of investigations to the end of 1996 was approximately £6 million for the metropolitan police and approximately £2 million for the cps and the expected cost of investigations for 1996-97 was about £630,000. home office special funding for the war crimes unit stopped in 1995, but it was stated during a parliamentary debate in march 1997 that the metropolitan police would receive a total of £1.7 billion in 1997-98 for all their policing needs, including war crimes investigations.54 the investigative resources (police officer time and expenses) required to prepare evidence files for advice from the cps in some of these cases is relatively modest. for example, in each of the gaza cases provided to the police the suspect has been identified, witnesses identified etc. no great difficulties are posed in obtaining further evidence locally in relation to the cases now with the police. anyhow, it would be perverse if a state, such as israel, were to be “rewarded” (i.e. by police inaction) for making it more difficult for the british police to investigate alleged crimes committed under military occupation. these will clearly be much cheaper cases to investigate 52 see cherif bassiouni and wise, above n 28, p 24. 53 a case against szymon serafinowicz, a collaborationist police chief allegedly personally responsible for hundreds of killings, collapsed in 1997 after the jury decided he was not fit to plead. twenty elderly witnesses were brought to britain and more than £2m spent before the trial collapsed. 54 hansard hc deb, 5 mar 1997 c1004, as regards the expenditure under the 1991 act. the denning law journal 114 than those investigated under the 1991 act referred to above. indeed, in some cases the investigative burden is minimal and the case will revolve primarily around legal issues (i.e. as to “military necessity”). in this context the comments of dac peter clarke on 19 july 2005, just after the conviction of mr zardad (reported to have been the first) under s134 criminal justice act, are relevant: “we had to find witnesses in remote parts of afghanistan and give them the confidence to come forward to give evidence in a british court. the fact that they did so is testament to their courage and to the skill of the police officers who supported them. it was a huge challenge, in the prevailing circumstances in afghanistan, to investigate and find evidence to the standard demanded by the british courts. today’s verdict shows what can be achieved, and that the uk is not a safe haven for people like zardad.” 55 these comments suggest that there will not be impunity in england and wales for torturers or war criminals, even after the investigative burden placed on the police since the bombings in london of 7 july 2005. accordingly, police forces in third party states, including in this country, will continue to be given evidence to consider on a case by case basis. the task facing victims and their legal advisers is to persuade police forces across the world to conduct expeditious and robust preliminary investigations so that decisions can be made in each case whether to arrest the suspect on arrival in their jurisdiction. police forces will in that way put themselves in a position where arriving suspects can actually be arrested and charged, where the evidence permits. if the police engage with these issues in a serious way, the very prospect of alleged war criminals being brought to justice in britain or any other country is likely to provide a deterrent to future perpetrators of war crimes. criminal trials would certainly provide genuine deterrence and begin to provide justice for victims, where justice has eluded them at home. the end of impunity would then be in sight. 55http://cms.met.police.uk/news/convictions/terrorism/afghan_warlord_jailed_followin g_anti_terrorist_investigation http://cms.met.police.uk/news/convictions/terrorism/afghan_warlord_jailed_following_anti_terrorist_investigation http://cms.met.police.uk/news/convictions/terrorism/afghan_warlord_jailed_following_anti_terrorist_investigation daniel machover and kate maynard* introduction and background to issues impunity in israel (b) targeted assassinations exercising universal jurisdiction over israeli suspects two kinds of justice: human and devine the denning law journal 253 the denning law journal vol 20 2008 pp 253-254 book review shareholders’ rights robin hollington qc, 5th ed, (sweet & maxwell, london 2007) hardback isbn 9781847030221 £155 alistair alcock∗ now in its fifth edition, this work by a leading practitioner in the area has become very well established. despite its name, it covers a wide area, setting possible shareholder claims in the general framework of company law, separate legal personality, the statutory contract, majority rule and a quite detailed look at directors’ duties. turning to the possible causes of action, the book understandably concentrates on the unfair prejudice remedy (section 459 of the companies act 1985, now section 994 of the companies act 2006) with separate chapters on the principles, the remedies and practice and procedure. these take up about half of the book’s 400 or so pages. the 2006 act makes no substantive change to the law in this area and one might have thought that with the house of lord’s decision in o’neill v phillips [1999] 1 wlr 1092, (a case in which the author was counsel for the petitioner), further commentary on this remedy might not be necessary. however, it remains a much litigated provision as can be seen from the number of recent cases the author cites, and for this alone, a new edition would probably be justified. more significant changes are found in other parts of the book where the 2006 act may have changed the substantive law, particularly regarding directors’ duties and derivative actions. i say ‘may’ because, as the author comments, it is not clear how much the codification of directors’ general duties and the replacement of the common law derivative action (usually for ‘fraud on the minority’) by a statutory action will change the courts’ attitudes. in chapters 4 and 6 on these two areas, the author lays out the preand post2006 act positions which will be particularly useful to practitioners struggling with actions based on facts on either side of the act’s implementation dates. if i had one criticism of this, it might be that a few more commonwealth decisions from jurisdictions where company law was reformed some years ago, might have been used to illustrate how the courts could now interpret the ∗ professor and founding head of salford law school. the denning law journal 254 uk codification or statutory remedy. still, the author might be right to believe that the courts will still heavily rely on the pre-2006 act uk cases. despite the concentration on the unfair prejudice remedy, and elsewhere on the 2006 act developments, one of the most fascinating parts of the book is chapter 11 on the personal rights of shareholders. here the author tackles the minefield created by the concept of ‘reflected loss’ as discussed in cases like johnson v gore wood [2002] 2 ac 1 and [2003] ewca civ 1728. i shall certainly be looking at this chapter again before i have to give lectures to my students on this subject. indeed, although this is a book written primarily for practitioners by a leading practitioner, it is tackling subjects of enormous academic interest and the author has tried to extract the general principles that are being applied in this complex area, highlighting them in chapter 2. i am sure that this latest edition of shareholders’ rights will not be the last as the practical consequences of the 2006 act begin to be worked out, no doubt with the author directly involved in the cases. in the meantime, i would also like to compliment the publishers on the pleasing quality of the print and paper. as the whole area of company law has expanded, those of us involved in it have become used to ever smaller print and almost transparent paper. this, at least, is one honourable exception! lord denning and modern administra tive law christopher forsyth * i. introduction a life of one hundred years packed with unprecedented influence on the development of english law cannot be summed up in a conference of one day or one paper of a few pages. even restricting that influence to administrative law leaves a task far too great to accomplish in this paper.] indeed, a major part of this paper could be taken up simply by listing the areas in which judgments by lord denning remain vital to a proper understanding of administrative law? thus i have decided on a different approach. i have selected four areas of importance in which either through developments since lord denning's retirement or otherwise the extent of his influence may be measured.3 fortunately, there is only a little overlap between the areas which i have chosen and those chosen by professor dawn oliver in her article elsewhere in this volume.4 the paper will then end with some more general remarks about lord denning's role in the development of administrative law including how it has been seen by others. the areas which i have chosen in order to reveal the extent of his influence are the following. first of all, we may consider the development of the prerogative remedies starting with his "rediscovery" of certiorari for error of law on the face of the record. since, as we shall see, most errors of • robinson college, cambridge; assistant director of the centre for public law, university of cambridge. i i take comfort from the fact that an excellent review of lord denning's influence in the area of administrative law already exists in the form of jeffrey jowell's essay, "administrative law" in lord denning: the judge and the law (sweet & maxwell, 1984, ed. j.l. jowell and j.p.w.e. mcauslan). there is also a less sympathetic account by eric young entitled "development of a system of administrative law?" in justice lord denning and the constitution (gower, 1981, ed. p. robson and p. watchman) which will be discussed below. 2 jowell and mcauslan, supra n. 1 at p. x reveal that there are more than 2,000 reported cases in which lord denning gave judgment. 3 others might well choose different areas but i do not believe that different conclusions would be reached. 4 "lord denning and the publiclprivate divide" p.71 infra. 57 denning law journal law made by public authorities take the authorities outside their jurisdiction, "error of law on the face of the record" is no longer of great importance in controlling the activities of such bodies. but this too comes about as a result of lord denning's work as will be explained below. secondly, we will look at lord denning's contribution to the law of standing. as we shall see while lord denning has had his rebuffs in this area the logic of his basic position that the rule of law requires that no decision should be beyond proper challenge and thus, where there is no other proper challenger, standing will be extended to any ordinary citizen has very largely been accepted. thirdly, we will consider the protection of legitimate expectations which forms such a prominent part of the modem law of natural justice. we will see that not only was lord denning responsible largely alone for the introduction of this concept into english law but his ideas remain vital to mark the limits of this doctrine in modem law. fourthly, and finally, we look at the juristic basis for the judicial review of non-statutory bodies. we shall see that lord denning's ideas have an important role to play in the development of this important facet of judicial review. ii. error of law on the face of the record and jurisdictional errors of law may i commence with a very well worn quotation? in the first series of harnlyn lectures given by lord denning and published in freedom under the law he said: "our procedure for securing our personal freedom is efficient, but our procedure for preventing abuse of power is not. just as the pick and shovel is no longer suitable for the winning of coal, so also the procedure of mandamus, certiorari, and actions on the case are no longer suitable for the winning of freedom in the new age. they must be replaced by new and up to date machinery, by declarations, injunctions and actions for negligence ...,,5 the challenge of these words has undqubted~ been met as the system of administrative remedies we have today shows. and lord denning has, inevitably, played a major part in meeting that challenge. but the developments since freedom under the law are replete with at least two curious ironies which is why this seems to be an area worth looking at. first of all, it was lord denning himself who showed that there was life in the prerogative remedies yet. this was in r. v. northumberland 5 (stevens & co., 1949) at p.126. 6 lord denning, the discipline of law (butterworths, 1979) at pp. 61-62. 58 lord denning and modern administrative law compensation appeal tribunal ex parte. shaw. 7 this was the case where the tribunal had made an error in determining the compensation due in law to shaw, a clerk who had been made redundant on the setting up of the national health service. no other error had been made and the old adage that "[i]f the tribunal had power to decide rightly, it had power to decide wrongly" seemed to stand in the way of a correction. lord denning disinterred the concept of "error of law on the face of the record" in reliance upon 17th and 18th century cases;8 and applied it to ensure that the correct compensation was paid. this concept of "error of law on the face of the record" played an useful part in the development of judicial review for some two decades. it provided a means where a legal erroneous decision could be set right even where no error had been made taking the decision-maker outside his jurisdiction. however, in another ironic development it was then lord denning who rendered the jurisdiction to quash for error of law on the face of the record largely redundant by holding, in pearlman v.governors of harrow school, that: "the distinction between an error which entails absence of jurisdiction and an error made within jurisdiction is very fine. so fine indeed that it is rapidly being eroded ....so fine is the distinction that in truth the high court has a choice whether to interfere with an inferior court on a point of law ...! would suggest that this distinction should now be discarded. the high court has, and should have, jurisdiction to control the proceedings of inferior courts and tribunals by way of judicial review. when they go wrong in law, the high court should have the power to set them right. not only in the instant case to do justice to the complainant. but also to secure that all courts and tribunals, when faced with the same point of law, should decide it in 9the same way." now although lord denning may have been wrong in extending this principle to all inferior courts without qualification, his view has been accepted as the orthodox position in english administrative law. 10 7 [1952] 1 k.b. 338. 8 groenwelt v. burwell (1700-)1 salk. 144; i ld. raym. 454-469 and r. v. glamorganshire inhabitants (1699)1 salk. 146; 1 ld. raym. 580. 9 [1978] 3 w.l.r. 736 at 744. 10 r. v. hull university visitor ex parte page [1993] a.c. 682 and re racal communications ltd. [1981] a.c. 374. it should be pointed out that lord denning was not alone in collapsing the distinction between errors of law within jurisdiction and without jurisdiction. lord diplock being simply the most prominent of the other leading judges behind this development. 59 denning law journal thus we see a consistent search for the extension of judicial review for the sound reasons of policy given in the quotation above. although it is extended by rendering the jurisdiction to quash for error of law on the face of the law redundant, it is done so on a principled basis. iii. standing and the vindication of the rule of law the tale of lord denning's contribution to the law of standing in the public law is well known and told elsewhere. ii but it is an excellent tale worthy of brief repetition. lord denning's contribution in this area in linked to that of raymond blackburn, that extraordinary litigator who in person, although he had no particular interest in the matters in question, sought to prevent illegalities by public authorities. blackburn had the good fortune to encounter lord denning on the bench to hear his cases.12 they were two of a pair. lord denning certainly approved of mr. blackburn and mr. blackburn thought lord denning was "the greatest living englishman.,,13 there were in fact four reported blackburn cases.14 although mr. blackburn was technically the loser in three of the cases, his intervention brought about a beneficial change of policy by the commissioner of the metropolitan police in two of those three cases. thus only one was a complete defeat: that in which he sought to prevent the u.k. from signing the treaty of rome! in none of these cases did mr. blackburn clearly satisfy the criteria for standing for the remedy which was sought. but the "greatest living litigator in person" and the "greatest living englishman" worked it out. the nub of lord denning's reasoning on the issue of standing in such 11 wade & forsyth, administrative law (oxford university press, 7th ed. 1994) at pp.704 & 711-8. 12 or perhaps more than good fortune, since lord denning was master of the rolls at the time. 13 the times, 7th march, 1980. but lord denning mindful of recent defeats retorted: "tell that to the house of lords." 14 blackburn v. the attorney-general [1971] 1 w.l.r. 1037 (declaration sought that h.m.g. had no right to sign treaty of rome; denied as treaty making non-justiciable but lord denning said "i would not myself rule him out on the ground that he has no standing."); r. v. commissioner of police of the metropolis ex parte blackburn [1968] 2 q.b. 118 (mandamus sought to require commissioner to enforce the law on gaming; relief refused because commissioner abandoned challenged policy on enforcement, applicant's standing left open); r. v. commissioner of police of the metropolis ex parte blackburn [1973] q.b. 241 (mandamus sought to require commissioner to enforce the law on obscene publications; relief refused because commissioner increased number of officers in obscene publications squad) and r. v. greater london council ex parte blackburn [1976] 1 w.l.r. 550 (prohibition sought to prevent g.l.c. from using test of "obscenity" rather than "gross indecency" as required by law in licensing film; prohibition granted; as a ratepayer the applicant (mrs. blackburn) had sufficient standing). 60 lord denning and modern administrative law cases is to be found in the following dictum from the 1976 blackburn case: "i regard it as a matter of high constitutional principle that if there is a good ground for supposing that a government department or public authority is transgressing the law, or is about to transgress it, in a way which offends or injures thousands of her majesty's subjects, then anyone of those offended or injured can draw it to the attention of the court of law and seek to have the law enforced, and the courts in their discretion can grant whatever remedy is . ,,15 appropnate. these words though must be considered in the light of one of lord denning's greatest defeats: gouriet v. union of post office workers.16 here it will be recalled that the house of lords overruled lord denning's finding in the court of appeal that the attorney-general was not the "final arbiter as to whether the [criminal] law should be enforced or not." thus where the attorney refused leave to an individual (without any special interest) to seek an injunction to prevent a breach of the criminal law , lord denning goined by lawton and ormrod l.jj.) held "any citizen in the land can come to the courts and ask that the law should be enforced." although the 1976 blackburn case was concerned with the standing required for prerogative relief and the gouriet case was concerned with standing for an injunction, the logic of lord denning's position is the same. the rule of law is recognised as a fundamental constitutional principle, to which, if necessary, other principles give way. thus standing must be extended to "any citizen in the land" if otherwise a decision would be unchallengeable. now while the attorney-general seemingly remains beyond challenge, 17 lord denning's logic has triumphed. even lord diplock his restraint minded "rival" if that is not too crass a way of putting it concluded in what is still the leading case on the requirement of "sufficient interest" to bring an application for judicial review, r. v. inland revenue commissioners ex parte national federation of self-employed and small businesses ltd., that: "it would in my view be a grave lacuna in our system of public law if a pressure group, like the federation, or even a single public-spirited is ex parte blackburn (1976) ibid at p.559 referring to his judgment in mcwhirter's case [1973] q.b. 629 at 649. these words were approved by lord diplock in r. v. inland revenue commissioners ex parte national federation of self-employed and small businesses [1982] a.c. 617 at 644. 16 [1978] a.c. 435. 17 r. v. solicitor general ex parte taylor [1996] c.o.d. 91. 61 denmng law journal taxpayer, were prevented by outdated technical rules of locus standi from bring the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped.,,18 similarly in r. v. secretary for foreign and commonwealth affairs ex parte world development movement ltd., where a non-partisan pressure group that had campaigned for many years to improve the quality of overseas aid given by the british government to underdeveloped countries was found to have standing to challenge to challenge a decision by her majesty's government to grant aid for the construction of the pergau dam in malaysia.19 the court took into account the expertise of the applicant; but was primarily moved by the fact that no one else would be able to bring the challenge if the world development movement was excluded. this is, of course, a vindication of the logic of the position that lord denning had consistently adopted. iv. the introduction of legitimate expectations the concept of legitimate expectation lies at the cutting edge of developments in the law of natural justice. lord denning both invented the concept as far as english law is concerned and he gave the name "legitimate expectations" to the similar, but not identical, principle that operates in european law. it is well known that in schmidt v. the home secretary lord denning, without any citation of authority, referred to persons who had been granted leave to enter the u.k. for a certain period of time having a "legitimate expectation" of being able to remain until the end of that period and being entitled to a hearing if they were to be required to leave before the expiry of that time.20 when i began to study legitimate expectations in the early 1980s i soon became aware of the existence of a similar concept in the administrative law of the european communities and in other european countries. was this the same concept, or if it was a different concept, did both concepts have a common origin? was this perhaps an example of the transmigration of ideas from european legal systems into english public law? the judgment in schmidt gave no guidance so i wrote to lord denning and asked him. an answer came back promptly. lord denning wished me and my researches well but roundly scotched my thesis. he had thought up the idea himself and certainly had not derived it from any european concept.21 what \8 supra n.15 in fact reversing the court of appeal [1980] q.b. 407. 19 [1995] 1 w.l.r. 386 20 [1969] 2 ch. 149. 2\ see 'the provenance and protection of legitimate expectations" (1988) 47 c.li. 238. 62 lord denning and modern administrative law else could be expected from "the greatest living englishman?" curiously, the phrase "legitimate expectation" was used after schmidt in european law to describe the concept in european law.22 so not only was lord denning responsible for the concept in english law but he is also responsible for the name in european law. interesting though this juristic archaeology is, what is its significance for today's law? the concept of legitimate expectation forms a valuable and prominent facet of the general and far-reaching duty to act fairly which lord denning has done so much in other cases to develop. the doctrine of legitimate expectation addresses the protection of the trust which citizens have placed in statements or practices of those in authority. citizens, to whom solemn assurances have been made, who have placed their trust in those promises of officials, should not find when that trust is betrayed that the law can give them no remedy. the point which i wish to pick up lies in the protection of substantive legitimate expectations. an individual may through a promise of a decision-maker23 legitimately expect either that a particular procedure will be adopted in reaching the decision (this is a procedural expectation) or the individual may expect a particular (and favourable) decision (this is a substantive expectation). now clearly procedural expectations are protected simply by requiring that the promised procedure is followed. but what of substantive expectations? although substantive protection has been recognised in several cases, it sits awkwardly with the need not to fetter the decision-maker's discretion. decision-makers must be free to change their previously announced policies and not be bound to follow them. for these reasons the most recent cases suggest that substantive protection of legitimate expectations will only be possible where the change of policy is shown to be irrational?4 there is force in these arguments; but should not the trust which has been placed in the policy or undertaking of the decision-maker be protected in some measure? the point that i wish to make is that lord denning had already thought of this. in schmidt, right at the introduction or invention of the principle, lord denning said, speaking of the position of an alien who had been given leave to enter and remain for a certain period: 22 forsyth, ibid. 23 or by that decision-maker's practice in adopting a particular practice or policy. 24 see r. v. home secretary ex parte hargreaves [1997] 1 w.l.r. 906 (change in policy on home leave for prisoners not irrational; challenge by prisoners whose first home leave had been substantially delayed by change of policy failed); r. v.inland revenue commissioners ex parte unilever ple [1996] s.t.c. 681 (decision by revenue to abandon practice followed for 20 years of allowing taxpayer, because of the complexity of its affairs, to make claims for loss relief late irrational and decision quashed). for comment see forsyth, [1997] p.l. 375 and bamforth, (1997) 56 cli. 1. 63 denning law journal "if his permit is revoked before the time limit expires, he ought...to be given an opportunity of making representations: for he would have a legitimate expectation of being allowed to stay for the permitted time.,,25 this is, of course, the recognition that a substantive expectation (of being able to stay for a certain period) may be procedurally protected. this surely is the way in which the protection of the trust placed in the undertakings of the decision-maker may be protected while at the same time preserving the freedom of action of the decision-maker. 26and it was an idea sprung fully formed from the fertile brain of lord denning. v. the juristic basis on non-statutory review one of the central conundrums of the theory of modem judicial review lies in the failure of conventional theories typically the doctrine of ultra virei7 to explain the judicial review of bodies which do not exercise statutory powers. however, although the issue awaits authoritative judicial consideration, a consensus seems to be developing that the juristic basis for such judicial review lies in the idea that there is a common law principle that monopoly powers should be exercised fairly and reasonably.28 thus one finds right from cases such as faramus v. film artists association lord denning (here in the minority) placing reliance upon monopoly as the factor indicating that power is not to be used unreasonably and unfairly.29 and in the leading case of nagle v. feilden the idea of controlling monopoly power once more plays a leading ro1e.30 this case, which was heard in the days before legislation against sexual discrimination, concerned the question whether the jockey club could adopt a policy of denying training licences to women. but the jockey club enjoyed monopoly control over organised racing in the united kingdom. no one could train racehorses successfully without a licence from the club. this meant that the club had to exercise its powers fairly. lord denning now in 25 supra n. 20 at p.171. 26 that such protection is possible and, indeed, appropriate is recognised in many cases. see, for instance, laws j. in r. v. secretary of state for transport ex parte richmond upon thames l.b.c. [1994] 1 w.l.r. 74 at 920. 27 i should reveal that i consider that the conventional doctrine of ultra vires, properly understood, is able to provide the constitutional basis for the judicial review of statutory discretions. see, "of fig leaves and fairy tales: the ultra vires doctrine, the sovereignty of parliament and judicial review" (1996) 55 c.l.j. 122. 28 see craig, administrative law (sweet & maxwell, 3rd ed. 1994). 29 [1963] 2 q.b. 527; [1964] a.c. 925. 30 [1966] 2 q.b. 633. 64 lord denning and modern adminlstra tive law the majority (and clearly influenced by the monopoly position of the club) said this: "if a man applies to join a social club and is black-balled, he has no cause of action .... they [the members] can do as they like ....but we are not considering a social club. we are considering an association which exercises a virtual monopoly in an important field of human activity. by refusing or withdrawing a licence the stewards can put a man put a man out of business ....the common law of england has for centuries recognised that a man has a right to work in his trade or profession without being unjustly excluded from it. he is not to be shut out from it at the whim of those having the governance of it.,,31 it is but a small step from recognising that there is a common law power to regulate monopolies in regard to property and employment to the regulation of procedural justice when such bodies exercise such powers. reliance on this common law principle justifies the judicial review of bodies that exercise such powers. r. v. the panel on takeover and mergers ex parte datafin was the crucial case in recognising that there could be judicial review of bodies which exercised neither statutory not prerogative powers.32 there it was held that the takeover panel, which lacks any "authority de jure" yet exercised great power in the regulation of takeovers of companies listed on the london stock exchange, was, none the less, subject to judicial review. the judgment of lord donaldson m.r. contains little principled discussion of the proper constitutional or juristic basis of the jurisdiction that the court was asserting. but that principled basis is surely to be found in lord denning's common law principle of the regulation of monopolies. thus does lord denning profoundly influence a development that takes place long after his retirement. vi. other views of lord denning professor lowell in his leading study ofthe influence of lord denning draws the distinction between an "activist model" and a "restraint model" ofthe judicial process in administrative law. his prime conclusion is that lord denning adopted the "activist model" and "with lord reid in particular, succeeded in challenging the ...'restraint model' espoused by other leading and persuasive judges (especially lord diplock). the 31 ibid at p.644. 32 [1987] q.b. 815 (c.a.). 65 denning law journal development of an activist administrative law is surely one of lord denning's great contributions.,,33 anyone with even a nodding acquaintance with the modem administrative law of england will recognise that this conclusion is amply justified. but it does not follow that everyone is content with this state of affairs or welcomes an "activist administrative law." consider the view of eric young who in his study of lord denning and administrative law concludes that: ''lord denning's influence on administrative law has, it is submitted, been very considerable. he has been a major force in widening the scope for judicial intervention in relation to the activities of administrative bodies. as a result, however, of the increased discretion which the courts have taken to themselves, it has become more and more difficult to predict when and how judicial control will be exercised. little progress has been made towards a developed system of administrative law ....arbitrary exercises of judicial power do not provide an answer to arbitrary exercises of executive power. whatever the inadequacies ...of present methods of political control over administrative bodies, the move, under the influence of lord denning, towards giving the judges an unfettered discretion to decide when and how to intervene in administrative action does not represent a satisfactory solution to the question of how to control the activities of public authorities. ,,34 is it the case that lord denning prevented the creation of a modem system of administrative law by the inconsistency of his decisions? that he while challenging the arbitrary power of the decision-makers in fact he replaced it with the arbitrary power of the judiciary? this is a fundamental charge to which a clear answer must needs be given. let me commence the answer to that charge by making two inevitable concessions. first of all, there are inconsistencies in lord denning's decisions. he has not always said the same thing. for instance, to give but one example, on the vital but technical issue of the voidness of unlawful administrative acts he has vacillated; although he eventually reached and stands by the right conclusion?s but is some inconsistency not inevitable in the course of a 33 in his "administrative law" in 1. l. lowell and 1. p.w.b. mcauslan, supra n.l at p.209. 34 young, supra n.l at p.180. 35 in finnan v. ellis [1978] 3 w.l.r. 1 lord denning accepted that unlawful administrative 66 lord denning and modern administra tive law long judicial career? and it is not noteworthy that lord denning has been willing to recognise the error of his ways. not for him the arrogance of judicial infallibility. secondly, lord denning's moral and political views have sometimes not chimed with the tenor of our own day. great fun mal. be had by the critics with cases such as ward v. bradford corporation.3 this was the case of the trainee teacher, a woman, who had been found to have a man in her room contrary to the rules of the hall of residence. the procedure whereby she was thereafter expelled from the college reeks of moral outrage rather than procedural propriety. the disciplinary rules were changed retrospectively, there were reasonable grounds to suspect bias by the authorities, etc etc. lord denning was firmly on the side of moral outrage. he said: "instead of going into lodgings she had this man with her, night after night, in the hall of residence where such a thing was absolutely forbidden. that is a fine example to set to others. and she a girl training to be a teacher! i expect the governors and the staff all thought she was quite an unsuitable person for it. she would never make a teacher. no parent would knowingly entrust their child to her care.,,37 but in explanation rather than defence of such statements it should be taken into account that lord denning was born into a different world. victoria was still on the throne. he was called to the bar in 1923. surely, it is inevitable, given the vast changes wrought in public attitudes and public morality in the course ofthe many decades since lord denning's moral and political ideas were set, that some of his views should bear an out-of-date air. many would see this as a strength. the only flaw was to allow those views to overwhelm the case for treating miss. ward fairly. but remember that there are more than 2,000 reported cases in which lord denning gave judgment; and in only a tiny handful of these would moral and political views be found to overwhelm the sound principles of administrative law. the fundamental charge remains to be answered: that while challenging the arbitrary power of the decision-makers in fact lord denning replaced it with the arbitrary power of the judiciary. the answer to it must be that, while a measure of uncertainty will always exist, there is really no acts were void not voidable (as he had held in director of public prosecutions v. head [1959] a.c.83. 36 (1972) 70 l.g.r. 27. for another but less extreme example where lord denning's moral views coloured his judgment see cinnamond v. british airports authority [1980] 1 w.l.r. 582. 37 ibid at p.30. 67 denning law journal convincing evidence that lord denning, or the judiciary as a whole, has been systematically arbitrary in their decisions in administrative cases.38 on the contrary, as the areas specifically chosen for discussion earlier in this paper shows there is frequently a deep inner logic to the developments that lord denning has initiated or which he has participated in. thus the development of the principle that for non-judicial decision-makers all errors of law were jurisdictional is not an arbitrary principle but is founded upon the need for consistency and the rule of law. the extension of the rules of standing too is not arbitrary but is founded upon the rule of law not being undermined by decisions being unchallengeable through no challenger having standing. the protection of legitimate expectations too is a clear extension of the obligation of fairness and not arbitrary. and the provision of a juristic basis for the judicial review of non-statutory bodies is a vital constitutional task precisely in order to ensure that such review is not vulnerable to the charge that it is in breach of the rule of law. one may disagree with the extension of judicial review implied by these developments, but they are not arbitrary. moreover, lord denning has always accepted the supremacy of parliament. "the judges," he has said, "loyally obey what parliament has laid down.,,39 not for him the readiness to abandon our constitutional foundations which other judges frustrated by parliament's failure to do what they considered necessary or fundamental have sometimes toyed with. judicial decisions made by lord denning as well as other eminent judges have sometimes been unexpected, they have sometimes been in error but they have seldom been arbitrary. they have always been justified in reasoned and principled judgments.4o one should not confuse disagreement with arbitrariness.4\ 38 given the complexity of the corpus of law (statute and statutory instrument as well as other forms of regulations) that forms the machinery of government in all its manifestations, a considerable degree of uncertainty is inherent within administrative law. 39 speech to justice reported in the times 29th june, 1977. and see the discipline of law, supra n.6 at pp. 8-9. to like affect see r. v. home secretary ex parte hosenball [1997] 1 w.l.r. 766. 40 cf the position in south africa where judges towards the apartheid years often abandoned principled justification for their pro-executive decisions. see, forsyth, in danger for their talents (juta & co., 1985) at p.180. . 41 it is often suggested that because interpretation is for the judges their subservience to parliamentary intent is fictitious. see ''the approach of humpty dumpty" cited in young, supra n.1 at p.1s7 from an undated financial times. the judges are the master of the interpretation and so are not truly subservient. what such arguments overlook, however, is that parliament can speak again and speak with greater clarity. judges may resist legislation they disapprove of, but in the end they will (and must) submit to the democratic will. thus unless the judges truly are "rebels in ermine" parliament will always have the last word. 68 lord denning and modern administrative law vii. conclusions and a summing up it would be commonplace to remark that lord denning's vast influence in the creation of modem english administrative law is a considerable achievement. but we should not lose perspective. it was not the work of lord denning alone. there were other giants of the subject whose contribution was just as great. lord reid, lord diplock, sir william wade, professor de smith and others any list is bound to have omissions made contributions of the same order of magnitude. perhaps lord denning's style is unique. short sentences. vivid phrases. but stanley de smith's compact style was also unique. he packed more learning into a short phrase than many other authors put into a chapter. and sir william is just as lucid and his contribution continues undiminished to this day. lord denning's contribution was essentially practical. in the craft of the analysis of the decided cases he had legendary skill which at time extended to legerdemain.42 but even more his influence rests on the clarity and vividness of his judgments. he is a great communicator; and sometimes he has communicated better with the public as a whole rather than those above him in the judicial hierarchy. his dislike of jurisprudence is well known. one consequence of this is he never articulated with any degree of abstractness the questions of principle that underlay his judicial decisions. one of the few disappointments of those brilliant books the due process of law and the discipline of law as well as the subsequent books is that when the focus shifts from law it falls on literature or history, never on jurisprudence or philosophy. but is this not an impractical academic's cavil: the same comment could be made about most judges. but these qualifications of lord denning's achievement all miss the point. all great men have flaws but they remain great men. we would not all be here today were it not for the fact that there is little doubt that on his two hundredth birthday lord denning will be remembered. he will be seen as a vital force in the revification of the public law of these islands. and his judgments will still be read. rather than nit-pick over this achievement we should simply join with lord hailsham in his speech on lord denning's retirement when he said: "we shall miss your passion for justice, your independence and quality of thought, your liberal mind ...and your 42 but note his views on precedent in the discipline of law, supra n. 6 at p.314: "all that i am against is a too rigid application [of precedent]a rigidity which insists that a bad precedent must necessarily be followed. i would treat [precedent] as a path through the woods. you must follow it certainly so as to reach your end. but you must not let the path become too overgrown. you must cut off the dead wood and trim off the side branches." 69 on the liability of travel agents: construction, implied terms and vicarious performance andrew phung * introduction and facts it has never been controverted that a party can, save in exceptional circumstances, delegate performance of the contract to another. i it is, however, equally well-established that that party will be liable for any breach of contract that occurs as a result. 2 in wong mee wan v. kwan kim travel ltd, 3 a privy council decision on appeal from the court of appeal of hong kong, the board examined the boundaries of such liability in a context of great practicality; first, because the situation was a common one concerning the liability of a travel agent and, secondly, because of the pragmatic lessons that result from the decision in the case itself. the use of the device of the implied term by the board will be explored briefly. the facts could not be more straightforward. the plaintiff was in fact, the • associate professor, faculty of law, national university of singapore. i would like to express my deepest appreciation to my wife, dr.phang sock yong, senior lecturer, department of economics and statistics, national university of singapore, for her very helpful comments and suggestions. all errors, however, remain mine alone. 1 see chitty on contracts, vol. 1 (27th.ed., sweet & maxwell, 1994) at para. 19-046 at 987. see also davies v. collins [1945] 1 all e.r. 247. cf investors in industry commercial products ltd v. south bedfordshire district council [1986] 1 all e.r. 787 at 807-808. on the other hand, the strict primary liability of a carrier to exercise due diligence under the hague rules as embodied in the leading decision of the house of lords in riverstone meat co. pty. ltd v. lancashire shipping co. ltd [1961] ac. 807 may, it is suggested, be explained by the unique statutory regime concerned, as well as the established interpretation thereof. 2 chitty on contracts, ibid at para. 19-046 at 987. 3 [1996] 1 w.l.r. 38. 91 the denning law journal mother and administratrix of her deceased daughter, who had been killed as a result of negligence on the part of the employee of the third defendant, who provided a speedboat service across a lake in the people's republic of china (p.r.c.). a collision on the lake had resulted in two deaths by drowning, one of which involved the plaintiff's daughter. the first defendant, a travel agent with a registered office in hong kong, had contracted with the plaintiffs daughter for a group package tour in the p.r.c., whilst the second defendant, a travel agency based in the p.r.c. itself, was apparently responsible for the actual conduct of the tour. 4 the plaintiff brought actions against all three defendants for breach of contract and negligence. she succeeded at first instance against all of them, and only the first defendant appealed to the court of appeal, which allowed its appeal. 5 the board, however, reversed this decision, allowing the plaintiff s appeal. in summary, it held that the first defendant had undertaken to supply the services and that, in the circumstances of the case, there was an implied term that those services would be carried out with reasonable skill and care. on the facts, such reasonable skill and care was lacking; in the words of the board: "the trip across the lake was clearly not carried out with reasonable skill and care in that no steps were taken to see that the driver of the speedboat [who was an employee of the third defendants] was of reasonable competence and experience and the first defendant is liable for such breach of contract as found by the trial judge."6 the centrality of construction the main issue in the case was this: did the first defendant merely promise to "arrange" for the tour, thus taking no responsibility for any default by those who actually provided the services 7 or did it go further, undertaking to provide for the services, notwithstanding the fact that some of the services would be carried out by others (here, by the second and third defendants who were located in the 4 although there was a tour leader employed by the first defendants, it is not unsurprising that the actual tour guide was employed by the second defendants. 5 see [1994] 1 h.k.c. 308. 6 supra.n.3 at 46 (emphasis added). 7 or, as the board put it, "at most a liability to take reasonable care in the selection of those who provided the services" ibid. 92 on the liability of travel agents actual country ofthe tour itself). as has been seen, the court decided in favour of the latter. what is involved here is, of course, no specific doctrine as such, but, rather, the much broader concept of construction of the terms of the contract itself, presumably arrived at on an objective basis. 8 in point of fact, however, the possibility (at least) for uncertainty is potentially great, and the line between a promise merely to "arrange" as opposed to a promise to undertake wholly may often be a fine one, not least because the objective of objectivity is not, it is suggested, wholly attainable in practice as such, given the myriad permutations of factual circumstances. 9 the net result is a reasonable disagreement based on differences in perception and interpretation of the same contractual terms and their general factual matrix. in the instant case, for example, penlington j.a. (in the hong kpng court of appeal) was of the view that "[i[t would .....impose an intolerable burden if the firm which put the tour package together was to be held liable for the negligence of a transport operator in another country on the basis of a breach of a non-delegable primary contractual duty." 10 lord slynn of hadley, who delivered the judgment of the board, however, took a different view, stating that even if the deceased had realized that parts of the tour would be actually conducted by others (here, the second and third defendants), "[t]hat does not, however, conclude the question."'! this is a double-edged argument, since it could be argued, with equal persuasion, it is submitted, that the fact that the first defendant was based in hong kong gave rise to the inference that it was merely arranging the tour, since, in the nature of things and, arguably, practice, the actual conduct of the tour is undertaken by other tour agencies based in the country of the tour itself (as was, in fact, the case here); any participation by an actual employee was 8 supra.n.3 at 42. see also craven et alv. strand holidays (canada) ltd.et al (1982) 40 o.r.(2d.) 186 (which was in fact cited in the instant case) and davies v.collins supra.n.1 at 250 per lord greene m.r. 9 though cf the emphasis by certain writers on the concept of construction in the context of common mistake: see e.g. slade, "the myth of mistake in the english law of contract" (1954) 70 l.q.r. 385; atiyah, "couturier v. hastie and the sale of non-existent goods" (1957) 73 l.q.r. 340; atiyah & bennion, "mistake in the construction of contracts" (1961) 24 ml.r. 421; and atiyah, "judicial techniques and the english law of contract" (1968) 2 ottawa.l.rev. 337 (reprinted as essay 9 in atiyah, essays on contract (clarendon, 1986). 10 supra.n.5 at 316. 11 supra.n.3 at 45. 93 the denning law journal likely to be minimal (again, as was the situation in the present case). 12 however, lord slynn then proceeded to draw the distinction between "arranging" and "undertaking" mentioned above, deciding (as has been seen) that the latter had been intended on the terms of the contract itself. further, whilst acknowledging the point from hardship, the learned judge was of the view that the first defendant in the present case could have protected itself by insurance cover or by the inclusion of an exception clause in the contract.13 it is, however, respectfully submitted that a close examination of the contractual terms as set out in the first defendant's brochure reveals that they are ambiguous at best; they constitute, in essence, the itinerary. 14 it is true that the board did refer to the heading of the brochure which read thus: "kwan kin travel tours [i.e. the first defendant] everything more comprehensively and thoughtfully worked out;" it was of the opinion that this heading gave "some indication that it is the first defendant who has undertaken the task of supplying the package tours." 15 however, this is hardly conclusive; nor, with respect, is the board's reference to the use of the word "we" in the itinerary persuasive since, contrary to the board's interpretation, it could indeed be argued that the word was intended in a colloquial and conversational sense reminiscent of the many travel itineraries in the region with which the present writer is familiar. 16 the board also referred to other particulars in the itinerary which, in its view, did not indicate a relinquishment of responsibility on the part of the first defendant, including the right of the same to change the means of transport. even this last mentioned point does not, it is suggested, necessarily entail the full assumption 12 the tour group in the present case was accompanied by a tour leader employed by the first defendant, but, to all intents and purposes, she performed merely liaison duties, the actual conduct of the tour being arranged (at the material time) by a tour guide employed by the second defendants who were, of course, based in the p.r.c. itself. see also supra.n.4. 13 the reference was to an "exemption clause"; this, however, suggests an attempt to obtain total exemption from liability, whereas the term "exception clause" would include attempts to limit liability as well. cf davies v. collins supra.n.1 at 250-251 per lord greene m.r. on the role of exception clauses as an operative factor as indicating a tendency against sub-contracting and consequent personal undertaking, since the ambit of loss to the consumer would otherwise be unduly extended notwithstanding the limitation of the supplier's liability. 14 see supra.n.3 at 45. is ibid at 46. 16 ibid 94 on the liability of travel agents of responsibility the board attributed to the first defendant. the board, further, pointed to the fact that if no legal remedy was forthcoming against the package tour operator (here, the first defendant), the plaintiff would have had to have pursued her claim in a foreign jurisdiction (here, the p.r.c.), together with all the difficulties such a course of action entailed. i? finally, it referred to regulation 15 of the u.k. package travel, package holidays and package tours regulations 1992 18 by analogy, which regulation states, inter alia, that the organiser of a package tour "is liable to the consumer for the proper performance of the obligations under the contract, irrespective of whether such obligations are to be performed by that other party or by other suppliers of services but this shall not affect any remedy or right of action which that other party may have against those other suppliers of services." 19 however, this only raises the issue as to whether or not something along these lines ought to be instituted (in this case in hong kong). can it not be argued, then, that travel agencies as well as others in a similar position can simply avoid liability by clearly specifying that it is merely "arranging" for tours as opposed to undertaking responsibility and liability under contract? if so, the instant case comes as a poignant lesson for travel agencies that will not have to be experienced again in the future. the solution is not so clear-cut; the travel agency concerned would still be liable if it were personally negligent (in this instance, in the process of selection). 20 it could, of course, attempt to escape or limit liability by way of an exception clause, but such a clause would then be subject to both common law and (where applicable) statutory rules. indeed, in the instant case itself, the board suggested the possibility of expressly including such a clause. however, it should be noted that any exception clause in the present context would have been subject to both the 17 quaere whether this was an important (at least subconscious) factor in the board's deliberations. 18 s.i.1992/3288. 19 regn.15(1)(emphasis added). cj regn.15(2), the primary part of which was stated by the board as follows: "[t]he other party to the contract is liable to the consumer for any damage caused to him by the failure to perform the contract or im proper performance of the contract. ..", there follow exceptional circumstances that are both reasonable and self-explanatory in nature. 20 see clerk & lindsell on torts (17th.ed., sweet & maxwell, 1995) at para.5-46 at 193. see also saper v. hungate builders ltd. [1972] r.t.r. 360. 95 the denning law journal common law as well as the control of exemption clauses ordinance, 2\ which is modelled almost entirely on the u.k. unfair contract tenns act 1977. 22 anyone even remotely familiar with the law relating to exception clauses will immediately realize that an exception clause may not easily pass muster, particularly (as in the present case) where there may be an inordinate difference in bargaining power, a factor, incidentally, that plays a significant role in the application of the test of reasonableness under the act. indeed, the test of reasonableness is itself a veritable minefield for a party seeking to take advantage of an exception clause, if nothing else, because of the high degree of uncertainty surrounding the application of the test itself.23 the net result appears to be that defendants such as the one here are in a catch 22 situation, insofar as the aim is to avoid liability altogether. on a policy level, this may not be undesirable, since consumers are almost always likely to be in a position of relative weakness. however, as penlington j.a. pertinently pointed out at the court of appeal stage, it is also unsatisfactory to impose a burden on a travel agent who is not only physically providing the services in question, but who is unable to supervise physically such provision. 24there is not, not unexpectedly, any clear answer either way. it is suggested, however, that the balance points in favour of the result arrived at in the instant case, but subject to the reservations expressed below with regard to the ultimate effect of such insurance coverage vis-a-vis the consumer. as the board mentioned, parties in the position of the first defendant could arrange for the requisite insurance coverage, which could then be factored into the price charged for the tour concerned. such an increase in prices need not necessarily disadvantage travel agencies if such a practice is in fact adopted industry-wide, particularly in light of the present decision. would there be an incentive for travel agents to seek out 2\ no.59 of 1989; now cap.?i, laws of hong kong; noted in aitken, (1990) 20 h.k.l.j. 381. 22 cap.50. one notable difference is the power given in s.6 of the hong kong ordinance to amend schedules 1 and 2 of the same ordinance by resolution. 23 see generally, adams & brownsword, "the unfair contract terms act: a decade of discretion" (1988) 104 l.q.r 94. 24 there was no evidence (from the report at least) that the tour leader employed by the first defendant was intended to supply anything more than a basis liaison function: see also supra.n.4 and n.12. 96 on the liability of travel agents insurance coverage? 25 it is suggested that there would be in light of the present decision. it is, however, further suggested that insurance cover might not be, in the final analysis, in the consumer's favour because the security of insurance coverage would not encourage travel agents to attempt their level best to source out other travel agents in the country of performance with the best credentials, and not, as is conceivably the case, merely the ones with the cheapest rates. there would, in other words, be no incentive towards the taking of more care rather than less the so-called "moral hazard" problem. it is true, of course, that the consumer is theoretically better off insofar as his or her remedy is concerned, but one might well argue that the old adage that prevention is better than cure should be of the first importance, lest the horse be put before the cart. however, as one writer pertinently observes, this is not so easy to effect in practice. 26 one possibility is for the requisite adjustment of the insurance premium in order to avoid covering the entire possible liability, although it will, in the nature of things, be extremely difficult for the insurer to gauge the possible extent of liability for each tour package. 27 another possibility is that the consumer purchases travel insurance, but the question then arises as to why the onus should be placed on him or her. the possible counter-argument, however, is that costs are likely to rise in any event if the travel agent obtains insurance coverage, since as already mentioned, this additional cost will be factored into the price charged to the consumer although this latter approach may, given the inevitable rise in costs, be psychologically preferable insofar as the consumer's perception and satisfaction are concerned. would one further approach be for travel agents in the position of the first defendant to obtain indemnities from travel agents and sub-contractors in the country of performance? it is suggested that this would neither take care of the increase in prices for the consumer, nor encourage the parties concerned to take more care problems already canvassed in the preceding paragraphs. the former 2s cf regn.19 of the uk package travel, package holidays and package tours regulations 1992 supra.n.18, para. 1 of which reads "[t]he other party to the contract shall have insurance under one or more appropriate policies with an insurer authorised in respect of such business in a member state under which the insurer agrees to indemnify consumers, who shall be insured persons under the policy, against the loss of money paid over by them under or in contemplation of contracts for packages in the event of the insolvency of the contractor." 26 see polinsky, an introduction to law and economics (2nd.ed., little, brown and company, 1989) at 56-57. 27 though cf the tour operator itself: see wilsonv. best travelltd [1993] i all e.r. 353. 97 the denning law journal is not likely to take more care because it has the benefit of an indemnity upon which to fall back. the latter is likely to take out insurance and, if so, this is hardly likely to encourage the taking of more care unless the insurance premium is adjusted, and this, as has been seen, is extremely difficult for the insurer to effect. 2~ also, the resulting increased costs will also be passed on to the consumer; indeed, even ifno insurance is taken out, the latter will, afortiori, levy higher charges vis-a-vis the former which would, of course, be passed on, in turn, to the consumer. in addition, the board also referred to the inclusion of an exception clause. as was also seen however, this approach is not clearly to the advantage of the travel agency concerned, since the clause would be necessarily subject to scrutiny by the courts along common law as well as statutory lines. it is suggested, however, that this is the lesser of two evils, for in a scenario such as occurred in the present case, the defendant would be in an even more intractable position. for all the lack of certainty, the defendant might still be able to escape liability should the exception clause pass muster, and, in any event, would have already covered its losses via insurance, as just discussed above.29 implying terms whilst the board held that the first defendant had undertaken to supply the requisite services, it had to determine the scope of that duty. as has been seen, it was of the view that a term would be implied to the effect that the services would be carried out with reasonable skill and care, and that such skill and care had not been exercised in the circumstances of the case. such a term was, presumably, implied "in fact" under the strict test of necessity. 30 given, however, the various possible interpretations canvassed above, it is suggested that the successful implication in the present case was not as clear an inference as the board would want believed. it is suggested that it might have been preferable for 28 see ibid. & text. 29 cf wilson v. best travel ltd. supra.n.27. 30 as to which, see the oft-cited cases of the moorcock (1889) 14 p.d. 64 and shirlaw v. southernroundries (1926) ltd. [1939] 2 k.b. 206 affd. [1940] a.c. 701. see also, supra.n.3 especially at 4. it is true that the language of the board may suggest a broader term implied "in law", but the earlier part of the judgment (where the general principle to be applied is mentioned) suggests otherwise: see generally supra.n.3 at 44 & 47. 98 on the liability of travel agents the board to have implied a term "in law" instead. 31the potential problem, of course, is that in all future cases, a term would be, at least potentially, implied in contracts in this category. it is, however, suggested that this would pose no real obstacle in principle, if the distinction between merely "arranging" and "wholly undertaking" were accepted in the first instance. somewhat ironically perhaps, the board did canvass the broad problem as to whether or not such an implication would impose an "intolerable burden" on the first defendant, an approach that is actually more consistent with the implications of terms "in law."32 it could, of course, be argued that this point is inconclusive insofar as the courts have to consider broad considerations of reasonableness even with respect to terms implied "in fact," although reasonableness is necessary but not sufficient in and of itself for the successful implication of a term under this particular category. conclusion the present decision is, it is suggested, of critical importance to travel agents, as future strategies are mapped out to deal with possible liability. as has been seen, however, the suggestions proffered by the board, presumably to restore a balance to the overall situation, are not without problems, and which are therefore necessarily present even where industry practice might already incorporate them. the overall impact of insurance or indemnities is not as clear as it is assumed to be, and the inclusion of exception clauses by the travel agent is at best uncertain, and very much dependent on the ultimate interpretation of the court in the case itself. 31 notwithstanding possible misgivings about the entire category itself: see phang, "implied terms in english law some recent developments" [1993] jb.l. 242. 32 see supra.n.3 at 47. see also supra.n.io. 99 a theme of fairness revisited: lord mansfield's legacy for a holistic theory of contract today c.ma. mccaulifl the 20th century anglo-american formulation of contract is a response to two major concerns, values or fairness in the 18th century as symbolized in the great cases of lord mansfield, chief justice of the king's bench, and freedom of contract, which limited liability during the 19th century manufacturing and entrepreneurial age. when the limitation on liability caused too much hardship, concepts of equity were used to mitigate the harshness of the law. but that muddled our theory of liability. while we had a holistic approach under mansfield, we now arguably have a bifurcated approach, the bargained-forexchange contract of the market place, and the trouble-shooting equitable notions of promissory estoppel to redress injury flowing from reliance on incomplete bargain. some 20 years ago, this situation concerned justice robert braucher of the supreme judicial court of massachusetts, reporter until 1971 for the restatement (second) of contracts. i intend to explore the permutations of promissory and equitable considerations in contract theory by comparing the serviceability of the promissory and the equitable theories of liability at two very different points in time, the l780s and the 1970s. the unsettled conditions in the contract law of lord mansfield's time, the reaction against his insights by 1840 and the subsequent need to restore the balance with promissory estoppel allow usio put in perspective justice braucher's seemingly revolutionary conclusion that we no longer needed promissory estoppel in the bid situation described in loranger construction co. v. e.f. hauserman co .. 1 in loranger, a general contractor sued when a • professor of law, seton hall university school of law, and samuel i. golieb fellow in legal history at new york university school of law (1998/99). i 384 n.e. 2d 176 (mass. 1978). justice braucher's successor as reporter, restatement (second) of contracts includes a brief biographical note about justice braucher in his treatise on contracts: e. allan farnsworth, contracts (aspen law and business, new york, 3'd ed., 1998) notes that justice braucher (1916-81) "was a decorated pilot during world war ii 67 the denning law journal subcontractor, the low bidder, withdrew after the general contractor had submitted its own bid; the general contractor had to engage another subcontractor at a higher price. justice braucher allowed the general contractor to recover from the subcontractor using the general contractor's reliance on the subcontractor's bid as consideration. he also tried to heal the division in theory by stretching the bargain to encompass a greater range of fact patterns. while promissory estoppel is the obvious theory excluded during the 19th century, the echo of equity in lord mansfield's enforcement of moral consideration, which the 19th century also rejected, bears re-examination in the journey from james baird co. v. gimbel bros. 2 and drennan v. star paving co., 3 the leading american cases in the area, to loranger. here several of lord denning's cases may prove illuminating. i.balancing the demands of consideration in the 18th century in the third quarter of the 18th century, lord mansfield, while chief justice of the king's bench, faced a different version of the same problems involved in baird and drennan and tried to realign consideration. in attempting to make sense out of consideration, mansfield cast about for categories. since the courts did not inquire into the adequacy of consideration, he suggested that consideration served a formal rather than a substantive function and began by emphasising its evidentiary role in indicating intent to contract.4 pillans v. van mierop, mansfield's first case involving consideration, concentrated on the intent of the parties to be involved in the arrangement, with a letter from a merchant banker in london, saying "i will give the bill due honour" as the principal indication of the commercial arrangement, that is, accepting the plaintiffs' drafts for payment. 5 mansfield regarded a writing and consideration as before becoming a member of the harvard law faculty were he taught for a quarter ofa century." [at p.861]. 2 64 f. 2d. 344 (2d cir. 1933). 3 333 p. 2d. 757 (cal 1958). 4 john f. wilson, "the enforcement of promises in anglo amercian law" (1958) 32 tulane l. rev. 371 at p375 compare chief justice benjamin n. cardozo's statement that consideration "came into the law, not so much from any reasoned conviction of its justice, as from historical accidents of practice and procedure" in allegheny college v. chautauqua bank 159 n.e. 173 at 175 (ny 1927). see alfred s. konefsky, "how to read, or at least not misread, cardozo in the allegheny college case" (1987) 36 buffalo l.rev. 645. 5 pillans v. van mierop (1765) 3 burr. 1664; 97 eng. rep. 1035, [kb.]. the plaintiff, pillans and rose, a firm of merchants in rotterdam, advanced £800 to white, a merchant in dublin, who wrote to the merchants in holland asking to draw a bill of exchange upon them for £800 68 lord mansfield's legacy "alternatives," functional equivalents evidencing the intent of the defending promisors to be bound at the time the agreement took place.6 the question for the court in economic terms was, who should bear the ultimate risk of bankruptcy in the chain of negotiability, expressed in the issue, did the defendant merchant bankers make a valid acceptance of the merchants' bill?7 the court held for the plaintiffs, the dutch merchant firm, on the alternative grounds that no consideration was needed in the first place if the promi~e was in writing and related to a transaction between merchants. in any event mr. justice wilmot found consideration insofar as the merchants in rotterdam were "deluded and diverted from using any legal diligence to pursue white."g payable to clifford, if he could make a similar arrangement for the merchants with a sound bank in london. the defendants, van mierop and hopkins, a merchant banking firm in london, pledged in writing to honour bills of exchange, in answer to the dutch merchants' letter to the bank stating the merchants' intention to draw on the bills the next month using white's credits at the bank. white failed, the london bank found out and the dutch merchants could not draw on the london bank, although white had clearly deposited money with the london bank. the defendants pleaded that there was only past. consideration for their commercial undertaking to honour a negotiable instrument because their promise given in the answer to the merchants was written after the merchants had already extended their credit to white. kevin m. teeven, "mansfield's reform of consideration in light of the origins of the doctrine" (1991) 21 mem. st. u l.rev. 669 at p.683. michael lobban, the common law and english jurispntdence /760-/850 (oxford, clarendon press, 1991) at p.l09 a.w. brian simpson, a history of the common law of contract: the rise of the action for assumpsit (oxford, clarendon press, 1975) at pp.323 & 617. 6 simpson, ibid at p.617. 7 a bill of exchange (which was assignable and negotiable) carried its consideration with it, and thus set up a rebuttable presumption. according to convention, it was already wellestablished doctrine that bonds and notes were prima facie evidence of consideration without proof lobban, supra n.5 at pp.108-109. g the late professor samuel j. stoljar, a history of contract at common law (australian national university, 1975) at pp.l03-1 04 characterised mr. justice wilmot's view as more extreme than mansfield's, and drew on j.m. holden, history of negotiable instruments in english law (london, athlone press, 1955) to make sense of pillans: "white had every right to assign the money, and ... [the merchants'] letter to the defendants could be taken as completing the assignment, as the latter were now charged with notice that white's assets were booked for the new assignees. " [at pp.13 5-136]. furthermore, professor stoljar reminded us that 18th century commercial law was extremely complicated: "it is of course true that such an informal assignment or transfer of a debt was not possible at common law. yet it must be plain that, had such an assignment been possible (as it was to become possible in equity), the case would have found a much simpler solution, nor would it have given rise, then or later, to some ofthe extravagent prouncements which it did." [at p.l04]. 69 the denning law journal the merchants said they extended credit to white only after white referred them to the bank in london. the best known passage from the opinion is mansfield's statement that: "the ancient notion about the want of consideration was for the sake of evidence only: for when it is reduced to writing, as in covenants, specialities, bonds etc. there was no objection to the want of consideration. and the statute of frauds proceeded upon the same principle."g mansfield said that the law merchant did not have a doctrine of consideration.lo if negotiable instruments do not require consideration, then was mansfield simply attempting to do away with consideration by using as a vehicle a fact pattern that did not require consideration in order to. find a valid contract?ll simpson says that mansfield's emphasis on consideration as fulfillment of an evidentiary function is less historically suspect than generally assumed.l2 9 theodore f.t. plucknett, concise history of the common law (little, brown, boston, 51h ed" 1956) at p,654 showed that mansfield was on strong grounds with his evidentiary point since the statute of frauds, 1677 (29 car.2,c.3), together with sound business practices, took care of many difficulties in proving contracts, samuel j, stoljar, "estoppel and contract theory" (1990) 3 j con!. l. 1, noted that the "first great wave of estoppel arose with oral agreements concerning interests in land required to be in writing under the statute of frauds."[at p,3] in pillans, the three other judges of the king's bench agreed with lord mansfield. lon l. fuller, "consideration and form" (1941) 41 colum.l. rev. 799 at p.799 n. 1, writing of the evidentiary function of consideration, related mansfield's objection to consideration to the form and manner in which the promise is made, citing pillans, 10 pillansv. vanmieropsupran.5 at 1669;1038, ii kevin m, teeven, a history of anglo-american common law of contract (greenwich press, new york, 1990) at p, 152, it is difficult to believe that the irrelevance of consideration (or that it was a conclusive presumption) to a negotiable instrument escaped lord mansfield, david lieberman, the province of legislation determined: legal theory in eighteenthcentury britain (cambridge university press, 1989), rehearsed lord mansfield's relations with the merchant community: "during his practice at the bar he was retained by london merchant groups, and throughout his judgeship he maintained regular social and professional contact with the city's leading figures, .,he extended the practice utilized by his predecessors of soliciting professional testimony to prove and clarify merchant usage in the courts, ,.besides enlisting this professional advice and guidance, the chief justice took equal pains to ensure that the actions of his court were correctly perceived by the merchants themselves, " more important and more distinctive was his use of special juries composed of merchants for the trial of commercial disputes," [at pp, 111-113]. 12 simpson, supra n,5 at pp,323, 407, 442 & 617-19. 70 lord mansfield's legacy even before other judges began to back away from the implications of pillans for consideration outside negotiable instruments, lord mansfield began to take a somewhat different tack.] 3 after this approach of holding verbal agreements binding on evidence of intent ran into trouble, mansfield set forth a modified position on consideration. instead of ignoring consideration as unnecessary, he said consideration is easily met. mansfield's second position, like his first, revolved around a party's intention to be legally bound.14 these 13 in watson v. turner (1767) buller's n.b. 129, just two years after pillans, mansfield held at nisi prius that moral obligation constituted consideration. (an overseer of the poor promised to pay an apothecary who had given medical aid to a pauper in an emergency without first consulting the overseer.) stoljar, supra n.8 at p.67 traces many of the 18th century moral obligation cases to a decision in 1731 which the reporters bosanquet and puller disavowed in 1802 in their famous note to wennall v. adney 3 b. & p. 247. the reaction of the judges in the court of exchequer chamber against pillans appeared in rann v. hughes (1778) 4 brown, p.c. 27; 7 term r. 350, note; 101 eng. rep. 1014 note; 2 eng. rep.18. isabella hughes, the administratrix of john hughes who died intestate owing over £900, promised rann, the executrix of m. hughes, that she would pay rann from her (isabella's) own goods the debt john owed to m. hughes, but isabella later refused to pay; the estate had £3000 in assets, though the declaration failed to allege assets. rann sued isabella in king's bench personally rather than as administratrix. although isabella pleaded no consideration, the king's bench gave judgment against isabella de bonis propriis, and not merely from the intestate's goods generally. ordering reversal, skynner, lord chief baron of the court of exchequer chamber, wrote the opinion for the house of lords: "it is undoubtedly true that every man is by the law of nature bound to fulfil his engagements. it is equally true that the law of this country supplies no means, nor affords any remedy, to compel the performance of an agreement made without sufficient consideration." as stoljar pointed out, the presumption of sufficient assets applied when a forbearance assumpsit was brought so why should it not when the statute of frauds implied a promise to pay would be good, provided it was in writing and signed by the party to be charged [supra n.8 at pp.97-98]. for the law relating to legacies, see simpson, supra n.5 at pa42. 14 cf clare dalton, "an essay in the deconstruction of contract" (1985) 94 yale l.j. 997"but if consideration is taken seriously as a doctrine of form, it would apply to cover all instances of detrimental reliance, making an additional doctrine of reliance unnecessary."[at p.1088]. john h. baker, "origins of the doctrine of consideration, 1535-1585" in on the laws and customs of england (eds. m.s. arnold et al )(university of north carolina press, ]981) at p.35], mansfield attempted to revive plowden's notion of intention to be bound as an aspect of consideration. patrick s. atiyah, essays on contract (oxford university press, ]986), says consideration finds a function "in reminding us always of the substantive grounds ofliability behind the formal one of the promise or agreement or signature" [at p.127]. at first, lord mansfield had relied on estoppel by conduct, christopher p. rodgers, "continental literature and the development of the common law by the king's bench: c. 1750-1850" in the courts and the development of commercial law (ed. vito piergiovanni) (berlin, duncker & humblot, 1987) at p.190 (citing montefiori v. m (1762) 1 w. bl.363 [k.b.]. 71 the denning law journal cases of moral obligation were not lost on mr. justice denning in high trees and its progeny. expanding consideration to include moral obligation met with rather more success than reducing consideration to a category of evidence, since moral obligation imported notions of equity and good faith into the assessment of the validity of an agreement. is for example, a legatee brought an action in assumpsit against an executor with sufficient assets to pay the legacy. 16 lord mansfield stressed the moral obligation arising from the executor's assent to the legacy, an actual promise and an undertaking to pay the legacy: "and that promise [is] founded on a good consideration in law; ... it is the case of a promise made upon a good and valuable consideration which in all cases is a sufficient ground to support an action. it is so in cases of obligations which would otherwise only bind a man's conscience, and which without such promise, he could not be compelled to pay.,,17 mansfield held that since the assets were available to pay the legacy, that provided sufficient consideration to enforce the legacy because the executor was "compellable in a court of equity, or in the ecclesiastical court, to pay for it.,,18 the notion of moral obligation as equity is the other side of the coin of stretching consideration since it achieves the same result. in another case lending itself to an analysis on the basis of moral obligation, a debtor about to go bankrupt bought a large quantity of inventory (linen) on credit. the debtor declared bankruptcy. because the debtor promised to pay half the old amount after he emerged from bankruptcy, that is, the debtor waived discharge in bankruptcy, the linen merchant forewent the opportunity to file a claim in the defendant's bankruptcy proceeding. after the debtor's discharge in bankruptcy, 15 teeven, supra n.s at pp.697-698 and atiyah, ibid at ppj2-33, 80, & 133-34 characterise the influence of natural lawyers and philosophers of the enlightenment as preferring reason over tradition which is supportive of the evidentiary nature of promises. james gordley, the philosophical origins of modern contract doctrine (oxford, clarendon press, 1991) sums up their contributions at p.109. 16 atkins v. hill (1775) 1 cowper 284 at 288 [kb.] the executor complained that the plaintiff's declaration did not specify the estate's assets or the consideration to support his promise. rodgers, supra n.14 at p.190 notes that rann v. hughes reversed atkins on its facts. 17 atkins ibid at pp.288-289. 18 the executor denied liability in contract at common law. stoljar, supra n.8, opined that "the question of consideration was here irrelevant since an executor with assets was as liable for a legacy as he was for the testator's debts."[at p.97]. 72 lord mansfield's legacy the defendant debtor agrued that an old debt and a new promise amounted to a nudum pactum (unenforceable agreement). mansfield invoked the principle of moral obligation: "all the debts of a bankrupt are due in conscience ... and there is no honest man who does not discharge them, if he afterwards has it in his power to do so. ,,19 finally, in hawkes v. saunders, mansfield dealt with another executrix who promised to pay a legacy without consideration. this time, however, there was no dispute about the adequate assets to pay the legacy: "the whole case is reduced to this single point: whether the circumstance of the defendant having assets to pay all the debts and legacies is or is not a sufficient consideration for her to make a promise to pay the legacy in question. ,,20 mansfield deliberately emphasised the "elasticity" of consideration by invoking morality, and managed to accomplish what he had desired to do without consideration.21 mansfield's moral obligation cases have been summarised as centring on three qualities: "an affirmation of a prior moral duty, a promise supported by consideration grounded in conscience, and a promise that was enforceable in chancery when specific relief was available.,,22 thus mansfield took scattered precedents, and created unified standards and principles to enforce contracts which the parties intended to enter. according to sir david parry, in the 18th century, "moral obligation was regarded as the primary factor making promises enforceable; and the general climate ... favoured freedom of contract and the enforcement of all contracts 19 trueman v. fenton (1777) 2 cowper 544 at 548; 98 eng. rep.1232, [kb.]. the moral obligation to pay, in accordance with the promise given, furnished a sufficient consideration. rodgers, supra n.14 at p.190. 20 hawkes v. saunders (1782) i cowper 288; 98 eng.rep. 1091, [kb.] without consideration an executrix promised to pay a legacy. moral obligation constitutes consideration. lord mansfield restated his view: "as if a man promise to pay a just debt, the recovery of which is barred by the statute of limitations: or if a man, after he comes of age promises to pay a meritorious debt contracted during his minority, but not for necessaries: if a bankrupt, in affluent circumstances after his certificate, promises to pay the whole of his debts; or if a man promises to perform a secret trust, or a trust void for want of writing, by the statute of frauds." 21 cecil b.s. fifoot, lord mansfield (oxford, clarendon press, 1936) at pp.140-141. 22 teeven, supra n.5 at p.693. 73 the denning law journal freely entered into.,,23 james oldham, who edited mansfield's trial notes, assessed mansfield's philosophy of contracts as focusing on peformance rather than the formalistic process of making a contract: "but the evidence in mansfield's trial notes, especially in terms of the role of the jury, describes an equity-based approach centered on the intentions of the parties and the avoidance of unjust enrichment, rather than a theoretical approach centered on the requisites of an enforceable executory contract. ,,24 mansfield's position emphasizes equity and to some extent, therefore, the possibility of promissory estoppel. mansfield's embrace of equity requires the discretion to do justice in the circumstances of the case which may not be properly decided if an ironclad rule or bright-line test is followed in all situations. under lord mansfield, judicial decision-making grew more complex, and extra work had to be done, as exemplified by the special merchant juries. on the one hand, there was the need to avoid uncertainty, and, on the other hand, there was also a great, constant need under this flexible system to relate both to underlying principles and commercial practices. lord mansfield knew that "as the usages of society alter, the law must adapt itself to the various situations of mankind. ,,25 mansfield used the "custom" of the trade in question and mercantij'e convenience to achieve the objective of certain but flexible principles. the opportunity to craft a more finely honed response to a legal problem carried with it the challenge and responsibility to keep the fundamental principles of the central core of contract law firmly in mind. not every lawyer and judge wished to carry so heavy a burden that these high-minded principles demand, and some 23 david h. parry, the sanctity oj contracts in english law (london, stevens, 1959) at p.51. although the restatement oj contracts §§ 86-89 (1932) had rejected moral obligation "as a form of consideration or a separate basis for enforcement," cases continued to multiply. 24 james c. oldham, the mansfield manuscripts and the growth oj english law in the eighteenth century (university of north carolina press, 1992) at p.213. 25 johnson v. spiller (1784) 3 doug. 371 at 373, [k.b.] oldham, ibid, assessed mansfield's attitude to certainty and the importance of contract doctrine as follows: "mansfield believed in the importance of certainty in mercantile transactions and in a few other contexts, but fairness, not certainty, was his lodestar for the general run of contract cases. this yielded a contract philosophy built around expectations and unjust enrichment. on the expectation side, the promise was central. honoring expectations legitimately created by a promise was a moral necessity, and by doing so, the advantage of certainty in mercantile transactions would be upheld."[at p.242] 74 lord mansfield's legacy . saw moral consideration as the imposition of private concerns on the law. furthermore, jeremy bentham, using the criterion of utility, put a premium on certainty and predictability over broad ethical principles.26 ii.high trees provides an equitable solution mr. justice denning of the high court of justice (as he then was) decided a case, central london property trust ltd: v. high trees house ltd., which dealt with modifying a contract already in progress?? a few years thereafter, he reflected on its implications for option contracts: "but nowadays there are some grounds for suggesting that an act may be good consideration even though it is not a benefit to the promisor nor a detriment to the promisee ... this new conception of consideration may have an important bearing on the vexed question of a promise to keep an offer open for a fixed time on the faith of which the option-holder acts. the act done may be good consideration even though it is no benefit to the promisor. ,,28 at that time, lord denning seemingly continued to believe it possible to reform the doctrine of consideration to accommodate the needs of litigants. the facts of high trees involved modification of a contract already in operation. mr. justice denning made no mention of detriment. in 1937, a company leased a block of flats to a subsidiary company, high trees, at a ground rent of £2,500 a year. in january, 1940, after the wartime conditions caused many vacancies, the rent was reduced in writing to £1,250 with no time limit for the reduction. in 1945, the flats were full again and the receiver of the plaintiff company claimed the full rent and sued for the last two quarters of 1945. high trees "pleaded that the agreement for the reduction of the ground rent operated 26 francis h. buckley, "paradox lost" (1988) 72 minn. l. rev. 775 at p.811 (utilitarians are consequentialists). bentham in his later years criticised lord mansfield for his view that the courts, rather than the legislature, should reform the law, but earlier bentham had praised mansfield. william s. holdsworth, "lord mansfield" (1937) 53 l.q.r. 221 at pp.227 & 230. for bentham's criticism of the common law, see lieberman, supra n.l1 at pp.232-233 and chapter 11 generally. 27 [1947] 1 kb. 130. 28 alfred t denning, "developments in the doctrine of consideration" (1952) 15 ml.r. 1 at pp.2-3. (ci lord denning's criticism of traditional offer and acceptance analysis in esso petroleum ltd. v. commissioners of customs & excise [1975] 1 wl.r 406 at 408, [cal [world cup sales promotion]). 75 the denning law journal during the whole tenn of the lease, and, as alternative, that the plaintiffs were estopped from demanding rent at the higher rate or had waived their right to do so down to the date of their letter of september 21, 1945." in england, promissory estoppel remains technically unavailable as a cause of action, and is used only as a defence.29 it therefore would have been available to high trees in defence, except for another victorian precedent which held that estoppel operates only on a misrepresentation of existing fact, and not for a promise of future conduct. to circumvent this obstacle, mr. justice denning used the other victorian cases which up to then had provided promissory estoppel's "finest hours." in dictum, he said that the plaintiffs could not have sued for the arrears accumulated during the period of the rent reduction, and even though high trees could not have sued the plaintiffs for refusing to accept the reduced rent, the fusion of law and equity estopped the plaintiff from acting inconsistently with their promise. the discussion of the issues in england, despite some differences in doctrine, is very illuminating for discussion of loranger's fate.3d some commentators greeted high trees with resistance to changing the scope and role of consideration?l the courts saw high trees as an "innovation," if not "a 29 as patrick s. atiyah,in an introduction to the law of contract (oxford, clarendon press, 4lh ed., 1989) puts it, promissory estoppel is a way to "discharge contractural obligations but not create them" [at p.l] although he sees some signs of change. richard hooley, "consideration and the existing duty" (1991) journal of business law 19 suggests that in english law, promissory estoppel cannot give rise to a cause of action: "although lord denning expressed the principle of estoppel by convention in amalgamated [investment &1 property co. v. texas bank [[1982] q.b. 84, 122] so as to give rise to a cause of action, he was alone in stating the principle so broadly." [at p.31] dillwyn v. llewellyn (1862) 4 de g. f. & 1. 517; 45 eng. rep. 1285 is older authority on which to base conversion of promissory estoppel from a shield to a sword. 30 john swan, "consideration and the reasons for enforcing contracts" in studies in contract law (eds. barry 1. reiter & john swan) (toronto, butterworths, 1980) 23 states that if the subcontractor in a construction bidding case "has promised that the offer is to remain open for the time necessary to be incorporated into the bid of the general contractor, it might be possible to argue that the high trees doctrine operates to restrict the subcontractor's power to revoke."[at p.51]. 31 for example, see la sheridan, "equity estoppel today" (1952) 15 m.l.r. 325 (the law should not be scarificed to the kind uncertainty of equity); d.m. gordon, "creditors' promises to forego rights" (1963) 21 cl.j. 222 (there is no theory of quasi-estoppel); francis bennion, "want of consideration" (1953) 16 m.l.r. 441 (common law judges should not usurp the function of the legislature). for particularly emotional rhetoric inspired by high trees, see ko. shatwell, "the doctrine of consideration in the modern law" (1954)1 sydney l.rev. 289 at pj07 who said that denning 1. made "a vigorous effort, ifnot to beget, 76 lord mansfield's legacy dangerous novelty.,,32 although there was a reaction against high trees, it was not so violent as rann v. hughes was against mansfield's emphasis on equity rather than consideration. indeed, lord justice denning, as he became soon after high trees, probably had rann in mind when he participated in reformulating promissory estoppel in combe v. combe, thereby hoping to blunt the backlash: it is clear he considered it a defeat. 33 two later extra-judicial comments explain why he took this position in combe and indicate the care he took to protect the principle of promissory estoppel in high trees. lord denning admitted that combe "led to a fall" insofar as lord simonds in the house of lords warned that combe "may well be far too widely stated" and lord simonds therefore did "not wish to lend the authority of this house" to the principle that conduct or words intended to be acted on cannot later be ignored by the one who introduced the words or conduct into the relationship.34 at least to nurture a puny child of equity's old age." the following studies provide different interpretations of high trees: john f. wilson, "a reappraisal of quasi-estoppel" (1965) 23 cl.l. 93 (contract must respond to the needs of commercial constitutents); david jackson, "estoppel as a sword" (parts 1 & 2), (1965) 8] l.q.r. 84 at p.223 (denning lj. himself undermined equitable estoppel in combe v. combe [see infra n. 33]); george spencer-bower & alexander k. turner, the law relating to estoppel by representation (london, boston, butterworths, 3rd ed., ] 977) (the term equitable estoppel should be scorned). 32 john h. baker, "from contract to reasonable expectation" (1979) 32 curl'. legal probs. ]7 at p.25. 33 the court in combe v. combe []95]] 2 k.b. 2] 5 at 220; [1951] 1 all e.r. 767 at 770, with denning l.j. reformulating promissory estoppel, retrenched. cf southern california acoustics co. v. c v. holder inc., 456 p 2d.975 (cal 1969) in which chief justice traynor said there was no contract between acoustics, the sub-contractor and holder, the general contractor. denning l.l said in combe: "much as i am inclined to favour the principle stated in the high trees case, it is important that it should not be stretched too far, lest it should be endangered." he also tried to reassure those who felt that consideration was threatened by high trees: "" the doctrine is too firmly fixed to be overthrown by a side-wind. its ill-effects have been largely mitigated oflate, but it still remains a cardinal necessity of the formation of a contract, though not of its modification or discharge. i fear that it was my failure to make this clear which misled the judge in the present case." 34 alfred t. denning, the discipline of the law (butterworths, ] 979) at p.209. (lord simonds set forth views in tool metal manufacturing co.ltd v. tungsten electric co.ltd [1955] ] w.l.r. 76] at 764; [1955] 2 all e.r. 657.) atiyah, supra n.14 at p.233 concluded that once high trees was "cut down" by the interpretation of combe, high trees was no longer a radical, forward-looking innovation but reactionary because it refused to recognize the old broader view of consideration. somewhat closer in time to high trees and combe, lord denning reflected on rann v. hughes that lord mansfield may well have been right but that he (lord denning of 77 the denning law journal the widely divergent interpretations of high trees are arrayed like a smorgasbord of choices at a buffet, and the answers to the questions about high trees seem to change over time.35 did high trees abolish consideration?36 was a promise now binding without consideration?3? was there a waiver in the sense offorebearance?38 was detriment necessary for high trees to operate?39 or was high trees merely the reformulation of the classical doctrine of consideration?40 at first, denning thought he had suceeded in remedying some of the defects in the doctrine of consideration, especially with the law revision committee's whitchurch) was too careful to abolish consideration ("the way of the iconoclast" (1960) 5 journal of the society of public teachers of law (n.s.) 77 at pp.80-81. he further stated that "in law as in war, a frontal attack is not likely to succeed against a position that is strongly held. (much better make an outflanking movement, as in the hightrees case)." [at.p.82]. 35 "opinion has subsequently divided over whether the doctrine is a dangerous novelty, a new application of the old equitable principle enunciated in hughes an adaptation of the commonlaw doctrine of waiver, or merely the reformation of the classical doctrine of consideration." baker, supra n.32 at p.25. 36 tony dugdale & david yates, "variation waiver and estoppel? a reappraisal" (1976) 39 mi.r. 680; john adams, "waiver redistributed" (1972) 36 conv. & prop.law (n.s.) 245; samuel j stoljar, "the modification of contracts" (1957) 35 canadian bar rev. 485. 37 soon after high trees, lord justice denning (as he had then become), stated in combe v. combe supra 0.33 at 770, that promissory estoppel can never do away with consideration when that is an essential part of the cause of action. 38 geoffrey marston & douglas w. smith, "consideration and the discharge of modification of contracts" (parts 1 & 2), (1970) 1 australian current law review 131-142, 163-170. see also barry j reiter, "courts, consideration and common sense" (1977) 27 u toronto i..j 439. 39 john f. wilson, "recent developments in estoppel" (1951) 67 i.q.r. 330 at pj44 thought detriment was required. denning, supra n.24 at p.68 thought not. spencer-bower and turner, supra n.31 at pp.391-393, looking at the orthodox doctrine that detriment is required, formulated a broad test of detriment around the promisee's injury. turner showed that the differences between these two views may not be so great. a broad test of detriment for promissory estoppel amounts to the same position denning took by examining the justice or injustice of allowing the promisor to go back on a promise. denning's formula is very close to the requirement of injury in the restatement of contracts § 90 (1932), available for comparison when high trees was decided in 1947. 40 atiyah, supra n.14 at pp.181 & 231 concludes that originally the dictum in high trees (that the promise on which the promisee relied was a fully enforceable contractural promise) constituted a reformulation of consideration. formerly lawyers could enquire "what are the considerations which lead a court to enforce a promise." after combe, the promisee's action in reliance was no longer directly enforceable under the notion of consideration. 78 lord mansfield's legacy 1937 report recommending changes in the doctrine of consideration41 nevertheless, the legislature did not act and changes in consideration appeared slow and minimal, so that lord denning's opinion evolved faster than the general trend in the law, at least until the discharge case of williams v. roffey in 1990. the present english law of consideration, however, was largely developed since 1937.42 in summary terms, the present law reflects a compromise between the views of lord mansfield, on the one hand, and eastwood v. kenyon,43 on the one hand: "that gratuitous promises on which the promisee has relied should either be fully binding or not be binding at a1l.'>44lord denning's views, which had been remarkably stable from his law school days to the decision in high trees, seemed to change after all the division of scholarly and judicial opinion over high trees. not long after high trees, he said of consideration: "it must be remembered that which amounts in legal theory to consideration is sometimes a real consideration and sometimes not. consideration in law is sometimes a real consideration and sometimes it is a mere fiction devised to make a promise enforceable. ,>45 the protective attitude toward consideration expressed in his 1952 article gave way to growing recognition of the role equitable considerations could play in the cases he decided. many years after high trees, lord denning reflected on a lifelong interest in the question of equity as it alleviated the "injustices" caused by strict, common law rules.46 he assessed the effect of high trees as doing 4\ the statute of frauds and the doctrine of consideration: report of the english law revision committee, sixth interim report, cmd. 5449, reprinted in (1937) 15 canadian bar review 585. 42 guenter h. treitel, the law of contract (sweet & maxwell, 9th ed, 1995) at p.149. 43 (1840) 11 ad. & el. 438; 113 eng. rep. 482; [kb.], which overruled past consideration, and symbolizes the rejection of moral obligation to enforce contracts. lobban, supra n.5 at pp.113-114. 44 treitel, the law of contract (sweet & maxwell, 8th ed., 1991) at p.148 and similarly in the 9th ed., at p.148: the question remains "to what extent the law should protect a promisee who has reasonably acted in reliance on a promise which is not supported by consideration." treitel characterises the present law as "a compromise solution, giving the promisee some remedy on the ground of such reliance" [at p.149]. 4s bob guiness ltd v. salomonsen [1948] 2 kb. 42 at 45 (forebearance as consideration). 46 denning, supra n.34 at pp.197-223. he told of being concerned about injustices he saw during his commercial practice in the 1920s and of remembering a case citing victorian precedents which he had read in law school and marked 'suggest estoppel' [at p.201). he read the victorian precedents themselves while editing a case book. still later dennning read 79 the denning law journal "away with the doctrine of consideration in all but a handul of cases," and came to feel that consideration was replaced by a principle of justice and equity, "the better precept: 'my word is my bond,' irrespective of whether there is consideration to support it.''''? mansfield's "ties of natural justice and equity" might still bind.48 iii.academic advocacy of consideration in place of estoppel and modification in court on reasonable consideration: loranger redux atiyah examined crabb v. arun d.c., a case that might have lent itself to being the english loranger but in fact was not so treated by the court, in part because factually it was not the right case for consideration and in part because lord denning continued to use promissory estoppel, as he had done in high trees. in crabb, a land owner sold a part of his land to the district council, a local authority, for housing, and part to crabb.49 the council planned to build a new road along the boundary between the two tracts of land. crabb subdivided the land he bought, and needed a second point of access to the planned road for the southern part of the land. the owner and his architect met with the surveyor for the council and came away with the impression that he would have additional access to th~ planned road. the surveyor soon after left a gap in the fence for crabb's access. crabb sold the northern tract of land, and then the council fenced off the second point of access. the recommendations in the law revision committee report of 1937, supra n.41,on the doctrine of consideration, and quoted the following recommendation as particularly meaningful for high trees: "we therefore recommend that a promise which the promisor knows, or reasonably should know, will be relied upon by the promisee, shall be enforceable if the promisee has altered his position to his detriment in reliance on the promise." [at p.202]. six months after he was appointed as ajudge in the king's bench, high trees came before him. 47 ihid at p.233. cf denning, supra n28 at p.5. 48 in a waiver case, panchaud frere s.a. v. et general grain co. [1970] i lloyd's rep. 53, lord denning said:"ifthe buyers choose not to read the documents, they must put up with the consequences. they must be treated as if they had read them. this was clearly the view of the committee of appeal of the london corn trade association ltd: and in a commercial matter like this, i like to hear the views of commercial men, just as lord mansfield did with his special jurymen."see supra n.ll for lord mansfield's practice. 49 [1976] ch. 179; [1975] 3 all e.r. 865. 80 lord mansfield's legacy the landowner sued the council for the access. the judge at first instance dismissed the action. the court of appeal held for the landowner on grounds of estoppel, saying that the owner had an enforceable equity. lord justice lawton framed the following issue: "did the parties agree that the plaintiff should have access on to the road at point b?" lord denning m.r. emphasized the basis of the estoppel in equity. "equity comes in, true to form, to mitigate the rigours of strict law. the early cases did not speak of it as 'estoppel.' they spoke of it as 'raising an equity.'" lord justice scarman wrote to the same effect: "if the plaintiff has any right, it is an equity arising out of the conduct and relationship of the parties." lord denning suggested in the discipline of law that the use of promissory estoppel has come to the fore: "once a man gives a promise or assurance to his neighbour on which the neighbour relies he should not be allowed to go back on it. in stating the principle, and its extensions, the lawyers use the archaic word 'estoppel.' i would prefer to put it in language which the ordinary man understands: it is a principle of justice d 'ty ,,50an equl .. " lord denning turned to the equity language of estoppel in order to do justice when it appeared that a straight contract analysis could not accomplish a just result. while atiyah tried to use crabb as an example of the invocation of promissory estoppel when it would have been possible to show that a contract had been made,5] other commentators could not find consideration in crabb52 furthermore, crabb is too vague to satisfy the requirement of certainty since the parties reached only an agreement in principle, although the district council firmly encouraged crabb.53 corbin wrote: 50 denning, supra n.34 at p.223. 51 patrick s. atiyah, "when is an enforceable agreement not a contract? answer: when it is an equity" (1978) 95 l. q.r. 174 at pp.174-78. 52 pl. millet, "crabb v. arun d c a riposte" (1976) 92 l. q.r. 342. 53 ibid at p.343. 81 the denning law journal "that the doctrine of consideration is many doctrines, that no definition can rightly be set up as the one and only correct definition, and that the law of contract is an evolutionary product that has changed with time and circumstance and that must ever continue so to change.,,54 atiyah felt that consideration was dead, but if consideration is defined in corbin's terms as "the factors that make promises enforceable,"55 then it cannot be abolished functionally. in this particular case, professor atiyah suggested what can only be described as an approach similar to justice braucher's analysis in loranger. indeed, both felt the power of corbin's analysis. atiyah concluded that english contract law had fallen into an "extraordinary conceptual morass," due to "outmoded ideas about the purpose and nature of the doctrine of consideration. ,,56 concerning crabb, atiyah asked, "is there any reason why the plaintiff should not have been able to set up his action in reliance on the undertaking or agreement as a valid consideration?,,57 atiyah thought that the equity analysis suggested a judicial preference for the doctrine of promissory estoppel over the "old" law of contract even when both would give the same result. atiyah suggests that the use of promissory estoppel involves "mere lip service to classical principles. ,,58in other words, he sees a profound misunderstanding of the doctrine of consideration, and therefore of the role of contract law. one factor in the confusion is that the lines between the two theories are not clearly drawn because detrimental reliance is both central to promissory estoppel and constitutes one of the twin pillars of consideration. 59atiyah gives these functional and policy justifications for the doctrine of consideration: contract has always been in need of an enforcement mechanism and although the limitation is paternalistic by safeguarding a person from making rash promises, underlying fairness tracks the concerns of benefit and detriment.6d 54 arthur l. corbin, corbin on contracts (west publishing co., rev.ed., 1963) §109 at p.489. for the approach of the authors of the 1995 edition, see joseph m. perillo & helen h. bender, 2 corbin on contracts (west publishing co.) §5.1 at pp.3-8. 55 ibid at p.495. 56 atiyah, supra n.51 at pp.174-78. 57 ibid at p.i77. 58 atiyah, supra n.29 at pp.147-148. 59 ibid at pp.153-154. 60 atiyah, supra n.29 at pp.147 & 159-160. 82 lord mansfield's legacy in trying to define consideration or the scope of contracts, we naturally concentrate more heavily on "infirm agreements owing to deficiencies of form" at the offer and acceptance stage of the proceedings.61 contract modification during the operation of the contract itself also gives rise to difficulties from the need for fresh consideration to establish a valid concession, as the facts of high trees show. in the context of this doctrine, commonly called the doctrine of sufficient consideration, john wilson, as long ago as 1958, summarised the difficulties the doctrine of consideration presented as a result of the sometimes erroneous assumption that "no person who makes an informal gratuitous promise intends to be legally bound by it.,,62 along with gratuitous modifications of agreements, wilson referred to the following types of commercial promise which fall outside the scope of consideration: a "promise to perform an existing contractural duty owed to the promise;,,63 and a "promise to accept a smaller sum in discharge of a debt of a larger amount. ,,64wilson explained that the requirement of fresh consideration was designed to protect one party from being pressured by the other party, and that application of the doctrine of economic duress would allow some of these promises to be enforceable. mr. justice denning reconciled high trees with 61 stoljar, supra n.9 at p.5. 62 wilson, supra n.4 at p.374. grant gilmore, the death of contract (ohio state university press, ]974) remarked: "classical theory used consideration as the touchstone for such curious deductions as that offers expressed to be irrevocable were nevertheless revocable until accepted, that certain modifications of ongoing contracts are ineffective and that discharges of debtors on payment ofless than the full amount of the debt are not binding on creditors. "[p. 76]. 63 stilk v. myrick (1809) 2 camp. 317; 170 eng. rep. 1168 (the sailors failed to receive a bonus when two of their mates deserted). the lack of consideration is interpreted as a reason for promising at the time stilk was decided. a.w. brian simpson, "innovation in nineteenth century contract law" (1975) 91 l.q.r. 247 at p.262. foakes v. beer (1884) 9 app. cas. 605 [h.l.]; [1881-85] all eng. rep. 106 (no consideration for discharge of contractural duties to pay a debt). simpson, ibid at p.263 suggests that when offer and acceptance was used instead of moral obligation after eastwood v. kenyon (1840) 11 ad.& el. 438; 113 eng. rep., [k.b.], equitable estoppel (the old detriment consideration with a new name) was invoked to deal with foakes v. beer. john p. dawson, "economic duress an essay in perspective" 45 mich. l. rev. 253 (1947). 64 foakes v. beer (1884) 9 app. cas. 605, [h.l.]; [1881-85] all eng. rep. 106 (no consideration for discharge of contractural duties to pay a debt). simpson, ibid at p.263 suggests that when offer and acceptance was used instead of moral obligation after eastwood v. kenyon (1840) 11 ad.& ei. 438; 113 eng. rep, [k.b.], equitable estoppel (the old detriment consideration with a new name) was invoked to deal with foakes v. beer. john p. dawson, ibid. 83 the denning law journal foakes v. beer by saying that foakes was decided on purely common law principles, without reference to equity.65 equitable estoppel has been used to protect the debtor when modification was in order.66 many years later in williams v. rojjey, the court of appeal thought that promissory estoppel might apply to modify a construction contract.67 to express the concept of duress in other terms, grant gilmore suggested that "[m]odifications may be agreed to or discharges granted honestly, fairly, voluntarily on both sides and in good faith; or they may be the result of coercion, economic duress, bad faith and fraud. ,,68 gilmore therefore concluded that the courts should concentrate not on consideration as an imprecise protection against economic duress bu(on whether the agreements were made in good faith or bad faith. wilson and many other commentators before and since, including the english law revision committee's report, prepared the way for the result in the recent modification case which took a flexible approach to consideration.69 in williams 6s [1947] 1 kb. 130 at 133. combining wardv. byham [1956] 1 w.l.r. 496 at 498; [1956] 2 all e.r. 318 at 319; and williams v. williams [1957] i w.l.r 148; [1957] 1 all e.r. 305, denning said that a promise to perform an existing duty is good consideration, provided the transaction does not violate public interest. for comment"on duress and these cases see kc.t. sutton, "promises and consideration" in essays on contract ed. paul d. finn, (law book co., sydney, 1987) at pp.35 & 50-52 and hooley, supra n.29 at pp.22-23 & 34-35. 66 see, for example, lord denning's opinion in d & c builders ltd. v. rees {1966] 2 q.b.617 at 625; [1965] 3 all e.r. 837. debtor offered a cheque for £300 in payment of a bill for over £700. the debtor pressured the creditor to accept the cheque in full satisfaction for the debt by making it clear that creditor would otherwise get nothing. the court of appeal did not accept the debtor's argument that payment by cheque is a variation sufficient to support the partial discharge of a debt. "normally payment by cheque, even of the full sum, affects only a conditional discharge of the debt so that the debt is extinguished only when the cheque is honoured and it would be inconsistent with normal business practice to have different rules for payment by cheque and by cash." cheshire, fifoot & furmston's law olcontraet (butterworths, 13th ed., 1996) at p.99. 67 [1990] 1 all e.r. 512 at 513. ian brown & adrian chandler, "consideration and contract modification" [1990] conv. & prop. law 209 at p.211 suggest that the implications of williams for promissory estoppel itself is rendered redundant by the decision. however, if consideration is freed by williams to operate logically, promissory estoppel could be resurrected to contend with the problems of reliance in relation to truly gratuitous promises. 68 gilmore, supra n.62 at p.76. fredrich kessler and edith fine, "culpa in contrahendo, business in good faith and freedom of contract" (1964) 77 harv. l. rev 401 a generation ago showed the existence of a formidable number of cases dealing with the pre-contractural duty to bargain in good faith. 69 law revision committee, cmd. 5449, supra nal: the abolition of the rule in foakes, [at para.35]; the recognition of a promise to perform an existing contract duty as being supported by sufficient consideration [at paraj6]. 84 http://www.ingentaconnect.com/content/external-references?article=0017-811x(1964)77l.401[aid=6748540] lord mansfield's legacy v. roffey, the general contractor, roffey, had a contract for the refurbishment of a block of twenty-seven flats, and subcontracted the carpentry work to williams for £20,000. without any provision for payment, the general contractor paid money on account.70 after finishing the carpentry in nine flats, doing some preliminary work in all the rest, and getting £ 16,200 on account, the subcontractor was in financial difficulty from underestimating the cost of doing the work by £3,783 and from faulty supervision of the workers. the general contractor had penalties for lateness under the contract with owners of the apartment complex. at a meeting with the carpenter, the general contractor agreed to pay £575 more per flat as each flat was completed for an additional total of £ 10,300. williams finished eight more flats but only got one further payment of£1,500. williams stopped work and sued roffey. in the event, the general contractor hired other carpenters but still incurred a one-week penalty under the general contract. the case turned on whether the carpenter gave consideration for the general contractor's promise to pay the additional money. although hooley welcomes the court of appeal's desire "to see fair dealing during contract renegotiation," he is concerned not simply because the court departed from slilk and its "rigid approach" to consideration, as lord justice russell described slilk, but also because hooley wants other safeguards to carry out the functions of consideration. on the other hand, adams and brownsword focus on the reasonabless and commercial usefulness of russell's approach, thereby placing russell in an older tradition than the classical, formalist position.71 the court of appeal concurred in the leading judgment of lord justice glidewell, who said that the general contractor had to pay because the benefit to the general contractor is capable of being consideration for the general's promise, so that the promise will be legally binding. there is no detriment to the promisee, but a factual benefit to the promisor because the subcontractor's failure to complete on time would subject the general contractor to penalties for delay under his contract with the owner of the flats. therefore, 'practical benefits' accrued to the general contractor from the modification. lord justice glidewell confronted the precedent in stilk and stated that the court was not "contravening" the principle of fresh consideration but only "refin[ing] and limit[ing] the application of that principle," thus leaving "the principle unscathed" when the promisor receives no benefit from promising. 72 70 [1991] 1 qb. 1; [1990] 1 all e.r. 512. 71 hooley, supra n.29 at p. 19. russell l.j. in williams v. roffey [1990] 1 all e.r 512 at 524. 72 john n. adams & roger brownsword, "contract, consideration and the critical path" (1990) 53 m.l.r. 536 at p.541. 85 the denning law journal conunentators are still concerned about what grant gilmore called the good faith agreement and the balance of efficient breach versus moral hazard.73 our use of exceptions from the general rule of consideration to accomplish the goal of good faith enforcement: "makes the resulting pattern look a good deal more complicated than it really is, with the result that people including lawyers and judges are sometimes led astray. these extensions of consideration theory have also, since the 1930s, suffered considerable statutory erosion ... the effect of such statutory abolition of a consideration requirement will be, i suggest, to drive out into the open what has always been the underlying principle of decision the distinction between good faith and bad faith agreements.,,74 despite ending on a postive note, one assessment of williams betrays worry that the courts may not be able to deal with the more complicated assessments required to determine duress and may therefore give rise to lack of certainty: "without ceremony, williams strikes at the heart of consideration in substituting inetention and economic duress as the criteria for contractural validity ... the reasoning in williams is obscure, cautioning against any weakening of consideration without clearer safeguards. ,,75 but, as if in answer, adams and brownsword dismissed the temptation to stay 'with the old law.' "the old law bought calculability only at the price of ignoring conunercial reality,,76 73 [1990] 1 all e.r. 512per glidewell l.j at 521-522. 74 for the moral hazard problem, made familiar from experience in insurance law, see louis kaplow, "an economic analysis of legal transitions" (1986) 99 harv. l. rev. 509 at pp.536-542 (the provision of insurance may increase the probability of a loss or the size of a loss because the injured party has less incentive to take precautions). 75 gilmore, supra n.62 at pp.76-77; cf kessler & fine, supra n.68. compare john p dawson, gifts and promises (yale university press, 1980) at p.211 on the inclusion of revocation of offers within offer and acceptance and consideration. good faith has been related to the reasonable expectation that a contract would operate fairly. 76 brown & chandler, supra n.67 at pp.211-12. 86 lord mansfield's legacy adams and brownsword find williams a significant confirmation of "one of the leading themes of the death-of-contract school of thinking: namely, that so long as the promisee confers some reciprocal requested benefit on the promisor, it is not essential that detriment is incurred by the promisee.,,77 treitel's tentative conclusion from the statements of lord justices purchas, glidewell and russell: "is that the factual benefit to [the general contractor] in securing [the subcontractor's] performance of the earlier contract will normally suffice to constitute consideration. the insistence in the earlier cases on the stricter requirement of legal benefit or detriment is no longer justified by the need to guard against extortion, now that this risk is more satisfactorily dealt with by the expanding concept of duress ...78 like loranger, williams is couched in the traditional terms of consideration with a much broader scope, promissory estoppel having been foreclosed by the case itself. the author of loranger would have welcomed the opportunity williams presents for the reshaping of the definition and function of consideration in commercial cases.79 compared with the british fact patterns for reliance, like high trees, the bid situation in loranger, drennan and gimbel has traditionally not been an immediately sympathetic or compelling choice on the equities, which seem to go the other way. the bargaining advantages do rest with the general contractors who would not usually be the object of equitable solicitude. general contractors' notorious use of "bid chiseling" by reopening bargaining with the subcontractor while claiming a continuing right to accept the original offer and "bid shopping" by delaying acceptance after the award of the general contract in an effort to find a lower price. listing the subcontractors' names in the general contractor's bid for the general contract would prevent pressuring of the subcontractors after the general contract is awarded. on the one hand, general contractors do not list the names of the subcontractors on their bids no matter what laws a state makes, thus 77 adams & brownsword, supra n.72 at p.541. 78 ibid at pp.536-537. 79 treitel, supra n.42 at p.91 of the 9th edition. brian coote, "consideration and benefit in fact and in law" (1990) 3 journal of contract law 23 at pp.24 & 28 criticises this decision as "remote from received learning" because the court said performance constitutes fresh consideration when he thinks the better analysis is that consideration is unnecessary. on the other hand, roger halson, "sailors, subcontractors and consideration" (1990) 106 l.q.r. 183 welcomes williams as a remedy to a defect in the law. 87 the denning law journal foreclosing the issue of the subcontractor's reliance on the general contractor's use of its bid. on the other hand, subcontractors may use mistake either to cover their unsuccessful attempts to negotiate their price upward or because of catastrophic rises in the price of their materials, thereby taking advantage of the general contractor. when the subcontractor in baird v. gimbel pleaded mistake in arriving at its linoleum bid by severely underestimating the square footage, judge leamed hand of the second circuit court of appeals found that the general contractor had not accepted the subcontractor's bid. the subcontractor's offer was a revocable offer since the general and subcontractors had not examined promises before the general contractor entered its own bid for the prime construction contract. although the general and subcontractors may be adverse to each other's interest, neither may be said to represent the public interest. 80 on closer examination, the fact pattern recommends itself for treatment as a contract, especially if one concludes that the most striking feature of these bidding agreements is the long-term nature of the relationships within the industry and often in individual building projects.8l the public interest may arise from this relationship rather than in here in either party. in drennan, justice roger traynor of the california supreme court saw that star's offer to do the paving was not a promise but suggested that a promise was implied with the offer to keep the offer open because it wanted to induce drennan to rely on its offer and thus obtain the subcontractor's work. according to traynor, keeping the subcontractor's offer open in effect gave the general contractor an option. justice traynor used promissory estoppel to hold the option equivalent to consideration but this theory works only for the general contractor. it does nothing to let a subcontractor sue when the general contractor wrongfully dumps the subcontractor after the award of the general contract. the unsympathetic facts which may surround either party do not conjure up equity but are central to what contract is about and throw the principles justice braucher was trying to clarify into relief. justice braucher held that the jury in 80 adams & brownsword, supra n.72 at p.542 suggest that williams may have released consideration "from shackles of the nineteenth century." michael l. closen & david g. weiland, "the construction industry at bidding cases: application of traditional contract, promissory estoppel and other theories to the relationship between general contractors and subcontractors" 13 j marshall l.rev. 565 (1980) at p.s80. 81 michael l. closen & david g. weiland, "the construction industry at bidding cases: application of traditional contract, promissory estoppel and other theories to the relations between general contractors and subcontractors" (1980) 13 j marshall l.rev. 565 at p.60s. 88 lord mansfield's legacy loranger could reasonably have been the subcontractor's bid as an offer for a typical bargained exchange.he declined to use the term promissory estoppel in holding that loranger's reliance on the offer of subcontractor, hauserman, should render the offer irrevocable. agreeing with fuher on the ancient heritage of reliance, braucher noted that the original enforcement of informal promises was based on the reasonable reliance of the promisee, long before any notion of consideration was conceived.82 in light of justice braucher's criticism ofthe term 'promissory estoppel' it would be expected of the restatement (second) of contracts not to use it. indeed there is mention in a comment to § 90 only to emphasise its historical roots in the action of assumpsit which measured damages by the extent of the reliance injury, and not the value ofthe promised performance. since braucher was the reporter in 1965 for the restatement, loranger can be set in the context of the restatement comments which now accompany § 90 to indicate that § 90 provides a most important working definition of contract. in the second restatement, the ancient, more inclusive notion of consideration, which had been dispossessed during the 19th century, was restored. justice braucher carefully refrained from using the term promissory estoppel, which had been the name for reliance duirng its exile under the dominance of classical 19th century theory. he ruled that in order to protect the reliance interests of the promisee, the definition of consideration could be expanded to include an inference of a bargained exchange. thus the general contractor's reliance on the subcontractor's bid constituted bargained consideration sufficient to enforce a contract becaus~ of the reciprocal relation between the promise and the consideration in a typical bargain. consideration is expanded to include an implied-in-fact inference unlike judge hand's theory of consideration in baird which did not encompass this firm offer situation. while only the subcontractor becomes bound in drennan, justice braucher wanted to unite the two manifestations of consideration, bargain and reliance, and ensure that the same result is reached under both theories. if justice braucher's theory were followed, the subcontractor could sue the general in a bid shopping or bid chiseling situation. braucher's efforts resonate with the changes in consideration elsewhere in the common law world, both in such academic writing as the work of atiyah or the essays paul finn collected, and these 82 john bell, "the effect of changes in circumstances" in contract law today: anglofrench comparisons (eds. donald harris & denis tallon) (oxford, clarendon press, 1989) at pp.204-205 deals with rises in the cost oflabour and material over the course of a building project. 89 the denning law journal .developments from classical contract law, are, in tum, the truly exciting illumination of loranger. 83 nevertheless, loranger is largely forgotten today. conclusion: promissory estoppel's place in traditional contract is acknowledged lord denning similarly felt that nineteenth century contract law unnecessarily and unfairly restricted recovery because consideration had been severely limited, and that an equity approach, which had originally arisen to mitigate the injustices of strict rules, was again needed to rescue the common law from inflicting injustices. his approach left behind the old terminology and started afresh with equity. corbin, atiyah, and baucher wanted to retreat from some of the most severe pruning of 19th century contract law andd set it back on its course from that point. for others less profoundly involved w~th history, perhaps the task of rehabilitating contract may not seem worth the effort. or perhaps the result might not always have been the same, and the proponents of equity had enough opposition over the years from vocal 20th century contract law. indeed, professor john baker has pointed out the difference between exchange and estoppel for the implications of high trees and crabb. 84 this uncertainty in the law today about whether a particular issue or analysis is or is not part of contract law impels several commentators, including atiyah, to urge a clear analysis of the application of contractural detriment in the doctrine of consideration and detriment in estoppel. their solution is to use conventional consideration doctrine to reach the same result as many of the cases invoking estoppel. "many decisions have been grounded on estoppel when their true basis should have been contractural ... if these decisions had been made on the ground of contract, we should perhaps have been spared the difficulty of separating the requirement of detriment in estoppel from the contractural idea of consideration. ,,85 83 supra n.l at 179, citing the draft of the restatement (second) of contracts § 90 cmt a (american law institute,198l). lon l. fuller & william r perdue, "the reliance interest in contract damages" (part 1) (1936) 46 yale l.j. 52 at p.68 n.61 (although § 90 applies especially to non-commercial situations, the reliance interested was protected at common law). 84 see, in addition to the articles already cited, h.k. lucke, "good faith and contractural performance" and robin cooke, "tort and contract" in essays on contract (ed. paul finn) (n.s.w. law book co., 1987). 85 baker, supra n.32 at p.29. 90 http://www.ingentaconnect.com/content/external-references?article=0044-0094(1936)46l.52[aid=6839859] lord mansfield's legacy if, on the one hand, adherents of classical contract law might like to castigate a court for reaching a result they would not, adherents of promissory estoppel, on the other hand, would disagree with atiyah' s attempt because promissory estoppel had its own separate history after eastwood v. kenyon, and, as an eminent legal historian put it, enjoyed its finest hours in the victorian house of lords in such cases as hughes v. metropolitan railway.86 after loranger, which bids us to examine the history of the terminology closely, it is clearer than it had been for many years that "promissory estoppel" is a version of the broad concept of consideration, or in simpson's terminology, is one of many considerations. only its new, equitable name conceals its origins in consideration, perhaps to protect it from those in the ascendancy who denied its role in contract. when the common law grew too stiff or narrow, equity often came to the rescue, allowing old doctrines to survive with changed names. braucher in effect expands the application of the bargained-for-exchange to encompass reliance, as earlier periods in history had done. this earlier, broader umbrella was also simpler to apply. loranger, however, has not spawned a movement toward simplification but stands virtually alone outside of massachusetts. 86 wilson, supra n.39 at p.330. according to professor baker at common law, "relationships are governed by rules rather than by uncertain notions of fairness" supra n.32 at p.35. therefore we are back to the choice of imperfect laws or broad standards exercised under the discretion of just judges. 91 cl;aire bessant offers a readable and accessible guide to the domestic violence, crime and victims act 2004 the denning law journal 243 legislation commentary more protection for victims of domestic violence? (the domestic violence, crime and victims act 2004) susan edwards∗ introduction in 2004, the government introduced the domestic violence, crime and victims act (dvcva). baroness scotland, in opening the bill’s second reading in the house of lords, said: “the bill represents the most radical overhaul of domestic violence legislation in 30 years. it reflects the fact that domestic violence is unacceptable, that victims must be protected and offenders punished.”1 in broad terms, protection for victims is provided by introducing amendments to existing civil and criminal offences including extending police powers in making, both common assault and a breach of a non-molestation order, arrestable offences (section 10 and section 1); offering protection to a wider range of persons by including same-sex couples in the meaning of “cohabitants" (by amending part 4 family law act (fla) 1996); including in the definition of “associated persons” same-sex couples (by amending part 4 fla), and perhaps of the greatest significance creating an entirely new homicide offence of “causing or allowing the death of a child or vulnerable adult” (section 5). there are several provisions intended to empower victims of domestic violence by allowing them a greater participation in the justice process, including the right to make representation in court (sections 35-46) and by providing additional support in the form of a victim’s code, although the remit of this code of practice is still yet to be determined (section 32). finally, there is also a provision, which establishes independent investigations of domestic homicides termed “domestic homicide reviews” (section 9). this commentary considers to what extent the new legislation will assist in the protection of victims of domestic violence. ∗ ba (cnaa), ma, phd (manc), llm (reading), deputy dean of law, professor of law, university of buckingham; barrister, (door tenant) clarendon chambers, 1 plowden buildings, temple, london ec4y 9bu. 1hansard, hl, col 949, december 15, 2003. the denning law journal 244 background and context the act is a demonstration of the government’s wider commitment to provide enhanced protection for victims of domestic violence. domestic violence homicide of adult partners continues to account for approximately 130 victims each year since 19972 (whilst over the last three decades the number has been on average 110 victims each year). domestic violence homicide remains largely a gender based crime. of all adult female victims of homicide over the last decade (1995-2005) between 40-45 per cent were killed by current male partners or ex-partners.3 it is widely accepted that intervening at the earliest stage in this escalating chain of violence can have a significant impact in the prevention of domestic homicide. the rise in both recorded incidents and prosecutions for domestic assault reflects the increased commitment of police and prosecutors to record and prosecute in these cases. a total of 35,231 prosecutions were recorded for the final eight months (april to december) of 2005.4 for the metropolitan police district alone, the number of cases rose from 2,030 in 2004 to 3,272 in 2005.5 (it is worth noting, by way of comparison, that in 1985 as few as 384 cases of domestic violence were recorded by police).6 this increase in prosecutions has been aided by establishing specialist courts to hear these cases7 and by the collection and use of enhanced evidence gathering, including photographic evidence and witness statements. as part of this commitment, the crown prosecution service is also considering whether expert witnesses8 might be of assistance in supporting prosecution cases where the complainant is hostile to the proceedings and whose witness statement controverts any testimony given in oral evidence. 2 k coleman, c hird and d povey, violent crime overview, homicide and gun crime 2004/2005 (supplementary volume to crime in england and wales 2004/2005) (london: home office, january 26, 2006) table 2.05 p. 58. although it is to be noted that the home office bulletin noted above records that domestic violence homicide as a proportion of all homicide has fallen, this is potentially misleading, since what has actually occurred is that an increase in homicides committed by strangers has merely impacted on the proportion of homicides that arise from domestic violence. 3 see note 2 above p.50. 4 the independent, march 9, 2006. 5 the evening standard, march 8, 2006. 6 see the times, october 6, 1986. see also s. edwards, policing domestic violence (london: sage, 1989). 7 m hester, and n westmarland, tackling domestic violence: effective interventions and approaches, home office research study 290 (london: home office, 2005). 8 m. m. dempsey the use of expert witness testimony in the prosecution of domestic violence (london: crown prosecution service, 2004). this document summarises a report drafted by professor s edwards (the law school, university of buckingham) regarding the use of expert witness testimony in the prosecution of domestic violence. the denning law journal 245 sentencing in addition, the sentencing practice of the courts in cases of domestic homicide and domestic assault demonstrates that sentencers are treating such offences more seriously than was the case in earlier years. in december 2002, the attorney general, referred three cases of domestic violence homicide to the court of appeal with a view to encouraging judges to impose stiffer terms of imprisonment than had hitherto been the case. in suraton, humes and wilkinson [2002],9 whilst the court of appeal agreed that mere loss of temper or jealous rage is not sufficient to establish loss of self control, nevertheless it found that suraton’s three and a half year sentence and wilkinson’s four year sentence were not “unduly lenient”, and humes seven-year sentence was not considered “lenient” [sic]. in suraton, lord justice mantell stated: “even if it would ever be sensible to attempt to lay down guidelines in this notoriously difficult area, we quite agree that it would be inappropriate for the court [of appeal] as presently constituted to do so or for any court to do so without the sentencing advisory panel having first been involved.” the sentencing advisory panel commenting on this case said: “…the court did not disagree with the proposition that in cases of manslaughter committed after provocation arising out of possessiveness, jealousy or unfaithfulness, the ordinary sentencing range lies between 5 and 7 years imprisonment.”10 the criminal justice act (cja) of 2003 placed on a statutory basis the sentencing guidelines council (sgc) whose role is to provide authoritative guidance on sentencing in criminal offences. by 2005, the sgc issued guidance on sentencing in manslaughter cases by reason of provocation, providing for three sentencing ranges depending on the degree of provocation. the first range has a starting point of three years imprisonment where the degree of provocation is high, the second range starts at eight years where there is a substantial degree of provocation over a short time and the third range starts at twelve years where there is a low degree of provocation.11 the cja 9 attorney general's references (nos 74, 95 and 118 of 2002) [2003] crim lr, 414. 10 sentencing advisory panel manslaughter by reason of provocation the panel’s advice to the sentencing guidelines council (london: may 2005) p. 8. 11 manslaughter by reason of provocation sentencing guidelines council, 28th november 2005. issued a definitive guideline in accordance with section 170(9) of the the denning law journal 246 2003 also provides for longer sentences in all cases involving violence not resulting in death.12 by 2004, the court of appeal in r v madar,13 a case of domestic assault, upheld a sentence of four years imprisonment for repeated acts of serious “domestic” violence.14 with regard to the civil law, where there have been breaches of nonmolestation orders, the courts have also started to impose longer sentences. although in loughran v pandya,15 the court reduced a two year sentence suspended for two years to that of eight months imprisonment suspended for two years. the limitations of the dvcva even with the advent of the dvcva some issues relating to domestic violence have still been left unaddressed. for example, there is no definition of domestic violence provided in the act. lord thomas of gresford commented on this omission at the bill stage: “it is curious to have it called domestic violence, crime and victims bill, without anyone having a clear idea how far domestic violence extends; who may be parties to domestic violence; who may not be; what type of conduct is regarded as domestic violence and whether it covers psychological harm.”16 the definition of domestic violence which is widely used is found in the home office in domestic violence: a national report,17 which reads: “any criminal justice act 2003. although it is to be noted that the sgc did not include previous acts of domestic violence by the defendant against the deceased as an aggravating factor. on this point it may be considered to be incongruent with both the approach of the criminal justice act 2003 to violence in general and the sentencing guidelines council consultation document on domestic violence 2006, where a history of violence is an aggravating factor. 12 see sections 227, 228 and 229 criminal justice act 2003. 13 court of appeal, criminal division [2004] all er (d) 91 (sep); [2004] ewca crim 1524. 14 criminal justice act 2003, section 327 “relevant sexual or violent offence” includes offences where a sentence of imprisonment of 12 months and above is imposed, relevant violent offence includes section 18 offences against the person act 1861. 15 court of appeal, civil division [2005] ewca civ 1720, (transcript: smith bernal). 16 hansard, hl, col 1218, march 9, 2004. see also house of commons research papers: research paper 04/44 2004 the domestic violence, crime and victims bill [hl]: domestic violence provisions june 9, 2004. 17 domestic violence: a national report (london: home office, march 2005). the denning law journal 247 incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members, regardless of gender or sexuality.”18 the act also fails to offer all victims equal protection since the degree of protection is affected by legal differences in the relationship of the parties concerned.19 a distinction is made between the duration of an occupation order made in favour of a spouse and an order made in favour of a cohabitant.20 further, whilst it was the aspiration of many that the civil and criminal law justice systems and their responses to domestic violence would move towards being more integrated, the criminal courts are still not obliged to address what civil orders may be in process or even make enquiries about, for example, child contact or housing issues or to consider the views of the victim who will not be party to the proceedings. thorpe lj, had anticipated that the act would better integrate the civil and criminal responses. in lomas and parle (2004)21 he said: “[47] however effectively the proceedings are managed a perpetrator may face sentence for the same act which amounts to both a breach of an injunction made in family proceedings and also a crime under the 1997 act. of course the sentencing courts do not share the same objective and operate in different ranges. the judge in family proceedings has to fit a custodial sentence within a range of zero to 24 months. an important objective for him is to uphold the authority of the court by demonstrating that its orders cannot be flouted with impunity. nevertheless there will be a shared deterrent objective in the punishment of domestic violence by imprisonment. [48] clearly therefore the first court to sentence must not anticipate or allow for a likely future sentence. it is for the second court 18 ibid para 10, p 7. the cps definition is drafted in almost identical terms, “any criminal offence arising out of physical, sexual, psychological, emotional or financial abuse by one person against a current or former partner in a close relationship, or against a current or former family member” domestic violence how prosecution decisions are reached (london: crown prosecution service 2005) and the sentencing guidelines council guideline manslaughter by reason of provocation defines domestic violence as “any incident of threatening behaviour, violence, or abuse [psychological, physical, sexual, financial or emotional] between adults who are or have been intimate partners, regardless of gender or sexuality.” 19 c bessant the domestic violence, crime and victims act 2004 : a guide (london: the law society 2005) p 4. 20 ibid above p 5. 21 [2004] 1 wlr 1643. the denning law journal 248 to sentence to reflect the prior sentence in its judgment in order to ensure that the defendant is not twice punished for the same act. it is essential that the second court should be fully informed of the factors and circumstances reflected in the first sentence. the defendant is often publicly funded to defend the proceedings in each court and may well have different solicitors and counsel in each justice system. there is therefore an obligation on the first court to ensure that the basis of its sentence is fully expressed and that a transcript of its judgment is made available to the second court, as judge harris directed in the present case. [49] experience suggests that proceedings in the criminal justice system are likely to require more extensive preparation and to prove more protracted than committal proceedings in the family justice system. therefore the application to commit should be issued promptly after the alleged breach and listed without delay. that discipline will ensure that, if proved, the contempt will have been punished before any sentence in parallel criminal proceedings.”22 extending civil and criminal protection following safety and justice: the governments proposals on domestic violence,23 sections 2,3, and 4, of the dvcva extends part 4 of the fla to non-cohabiting couples in a relationship. the meaning of “cohabitants” now include parties in same-sex relationships. in defining non-cohabiting relationships which fall within the act, section 4 amends section 62(3) of the fla (associated persons) adding sub section (ea) which requires the parties to be or have been in “…an intimate personal relationship with each other which is or was of significant duration.” how the courts will interpret “intimate,” “personal” and “of significant duration” is yet to be determined. some guidance is offered in the explanatory notes to the bill which suggests that relationships need not be sexual but should be “intimate and personal.” one commentator at least is of the opinion that platonic friendships, and short, very intense relationships, will be excluded.24 certainly, each case will need to be decided on its own particular facts and the courts should aim to reflect the contemporary reality of the diversity of intimate and personal encounters. under the dvcva common assault is now an arrestable offence. section 10(1) of the act amends the police and criminal evidence act 1984 schedule 22 ibid paras 4749. 23 home office, july 2003, para 38-50. 24 bessant note 19 above. the denning law journal 249 1a, which now allows police to arrest in cases of common assault (the least serious of criminal assault offences), without obtaining a warrant, so that immediate protection for victims of domestic violence can be ensured.25 in 1984, sherman and berk,26 in a research experiment where police were randomly assigned one of a number of responses (arrest, mediation, and removal from the scene) in minor domestic violence incidents, and then followed up these individual cases to assess the deterrent effect of the assigned response, concluded that “arrest is best” in deterring subsequent domestic incidents. the research was replicated in many american cities and a pro-arrest policy was considered to impact significantly on reducing repeat incidents of domestic violence. however, the sherman and berk experiments were also criticised for too readily concluding that the pro-arrest police response was the determining variable in deterring domestic violence repeat incidents. critics were concerned that the decline in repeat incidents of domestic violence which characterised cases where the police response was one of arresting the suspect was an indicator not of a real decline in repeat violence but instead the consequence of victims simply not calling police on subsequent occasions. despite this caveat, it is now widely accepted that, in the long-term endeavour of reducing domestic violence, police pro-arrest policies not only serve to remove the violent perpetrator but also convey an important symbolic message to individual perpetrators and to society that domestic violence is unacceptable. the implementation of a positive arrest policy in the dvcva is reinforced by being included in the policing performance assessment framework27 whereby police performance is measured by the percentage of cases where police make an arrest where they have the power to do so. police forces in the uk have been considering how they will implement the new arrest provision. the metropolitan police in london have stated: “the met is committed to holding domestic violence offenders accountable and we will arrest given reasonable grounds.”28 staffordshire police have stated: “the onus will be on officers to make arrests where evidence of abuse is found and the power of arrest exists …from march 1 2005 staffordshire police have been completing a detailed log in all domestic violence cases to which they are called. the log, known as dial (domestic investigation arrest log or, if there is no crime, domestic intelligence assessment log), will 25 july 1, 2005 si no.2005/1705. 26 l.w. sherman. and r.a. berk, “the specific deterrent effects of arrest for domestic assault” (1984) american sociological review 49 (2): 261-72. 27 http://police.homeoffice.gov.uk/performance-and-measurement/performanceassessment/assessments-2004-2005/ 28 http://www.met.police.uk/dv/ the denning law journal 250 include evidence and intelligence-gathering checklists. these will encourage officers to carry out tasks including photographing the victim or scene and seizing evidence such as mobile phones containing threatening text messages. the log will include victim and witness statements, removing the need for separate paperwork, and will give officers the chance to make an early risk assessment of an incident and a tailored safety plan for the victim.”29 however, it must be remembered that an arrest provision does not compel officers to arrest and whether police exercise their arrest power is a matter left to an individual officer’s discretion and what s/he consider reasonable grounds. other protective measures in the dvcva include the expansion in the use of a restraining order. previously, restraining orders were only provided for under the protection from harassment act 1997 (pfha) section 5. this remedy is now part of the dvcva (section 12(1)). perhaps the most contentious aspect of this remedy is that such orders may be imposed even in cases where a person is acquitted of an offence. section 12(5) inserts a new section 5a in the pfha which provides: “(1) a court before which a person (‘the defendant’) is acquitted of an offence may, if it considers it necessary to do so to protect a person from harassment by the defendant, make an order prohibiting the defendant from doing anything described in the order.” in the house of lords debate on the bill it was stated: “the government recognises that the amendment is wide, but believes it necessary to deal with those cases where there has been clear evidence during the proceedings that the victim needs protection, but insufficient evidence to convict.”30 the dvcva (section 1) also makes a breach of a non-molestation order a criminal offence, carrying a maximum five-year prison sentence, thus addressing the ineffectiveness of the enforcement of civil provisions. in 2004,31 20,890 non-molestation orders with a power of arrest were granted. breaches of non-molestation orders were not taken seriously by the police or by the courts, few individuals were proceeded against for such breaches and sentences handed down by the courts were nominal.32 whilst section 47 (2) b of the fla, required a power of arrest to be attached to non-molestation orders, “unless satisfied that in all the circumstances of the case the applicant or child will be 29 http://www.staffordshire.police.uk/news/2005/02_feb/news528.htm 30 hansard (hl) col gc, february 2, 2004. 31 judicial statistics 2004 (london: department of constitutional affairs 2005) cm 6565, table 5.10. 32 see odumosu v aiyeola (court of appeal) october 16, 1996; a-a v b-b [2001] 2flr 1; lomas v parle [2004] 1 wlr 1643; aquilina v acquilina [2004] ewca civ 504; bartley (t/a lundy) v wilson [2004] ewca civ 1338. the denning law journal 251 adequately protected without such a power of arrest” the enforcement mechanism where orders were breached still remained ineffective. in robinson v murray (2006), 33 the judge found that the defendant was guilty of three breaches of a non-molestation order, and sentenced him to eight months' imprisonment in respect of each breach, to be served concurrently. the defendant appealed contending that the sentence was manifestly excessive in the circumstances. the application was dismissed. a new kind of homicide the dvcva introduces a new offence in section 5(1) of “causing or allowing the death of a child or vulnerable person” where that person is a member of the same household, (household member being widely drafted). section 5 (1) provides: “a person (‘d’) is guilty of an offence if (a)a child or vulnerable adult (‘v’) dies as a result of the unlawful act of a person who(i)was a member of the same household as v, and (ii) had frequent contact with him,(b)d was such a person at the time of that act, (c)at that time there was a significant risk of serious physical harm being caused to v by the unlawful act of such a person, and (d) either d was the person whose act caused v's death or (i)d was, or ought to have been, aware of the risk mentioned in paragraph (c),(ii) d failed to take such steps as he could reasonably have been expected to take to protect v from the risk, and (iii) the act occurred in circumstances of the kind that d foresaw or ought to have foreseen. (2)the prosecution does not have to prove whether it is the first alternative in subsection (1)(d) or the second (subparagraphs (i) to (iii)) that applies.”34 these inelegantly drafted paragraphs d(i) to (iii) are to be read conjunctively. the home office circular,35 in its description of the offence, is somewhat clearer: “the offence provides that members of a household who have frequent contact with a child or vulnerable adult will be guilty 33 [2006] 1 flr 365. 34 sections 5 to 8 in force march 21, 2005, si 2005/579. 35 home office circular 9/2005 the domestic violence and victims act 2004:the new offence of causing the death of a child or vulnerable adult, 04/03/2005, (london: home office 2005). the denning law journal 252 if they caused the death of that child or vulnerable adult or three conditions are met: they were aware or ought to have been aware that the victim was at significant risk of serious physical harm from a member of the household; and they failed to take reasonable steps to prevent that person coming to harm; and the person subsequently died from the unlawful act of a member of the household in circumstances that the defendant foresaw or ought to have foreseen.” the person must be a member of the same household as the child. although this is to be interpreted loosely and does not require the party to live in the same household, it does, however, require the party to be a regular visitor, so as to include boyfriends who may not cohabit but visit on a regular basis. this provision is designed to address the difficulty which has presented the prosecution for some time exemplified in r v lane and another (1985),36 where the court of appeal held that where it could not be established which of two defendants (in this case a mother and stepfather) were responsible for the death of a 22-month-old baby, then the convictions for manslaughter should be quashed. james and linda lane were found guilty of manslaughter at cardiff crown court after their daughter died from a single blow to the skull. the prosecution conceded that the evidence did not establish which of the appellants had inflicted the injuries but invited the jury to draw the inference that both were jointly responsible. at the end of the prosecution case the defence made an application of “no case to answer.” the judge rejected the defence submission stating that he was satisfied that there was sufficient prima facie evidence on which the jury could conclude that both had been responsible for the death of the child. as a result the jury convicted. on appeal, the convictions for manslaughter were quashed on the basis that the trial judge ought to have ruled in favour of the appellants on their submission of “no case to answer” because it could not be established which of the two defendants caused the fatal injuries “…import[ing] into the law relating to proof of manslaughter a new test converting the general responsibility for custody and care into actual presence at the time the blow was struck, even though on the acknowledged facts there were substantial periods when only one of the appellants was present” (see also r v aston and another (1991)).37 where both parties made explicit denials, this difficulty in establishing criminal liability for one of the two parties persisted. although in r v russell and another (1987),38 where the appellants a and m were registered drug addicts, in receipt of daily prescriptions of methadone, which they obtained in liquid form and made 36 [1985] 82 cr app rep 5. 37 [1991] crim lr 701. 38 [1987] crim lr 494. the denning law journal 253 admissions that “on occasion” they had dipped the child’s dummy into the liquid methadone to placate her while she was teething, a conviction for manslaughter followed. in cases where both parties deny the offence and make no inculpatory statements the judge must direct “no case to answer” on manslaughter or murder if the prosecution cannot establish that there is a case to answer against either defendant. lord lane cj in galbraith (1981)39 said: “(1) if there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. the judge will of course stop the case. (2) the difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury...” 40 in 2003, the law commission issued a consultation document followed by a report outlining their concern that co-accused’s could and did evade conviction in such circumstances.41 whilst the new provision in the dvcva addresses this problem in the legislation, there is a concern that the provision may in fact be too broad. the “ought to have foreseen the risk” element embodies an objective test, which is contrary to the test for criminal liability in recklessness,42 which following r v g 43 is subjective. (however two of their 39 [1981] 1 wlr 1039 at p.1042b–d. 40 see also bellman [1989] ac 836 at p. 849a, s [1996] crim lr 346. 41 law commission, children: their non-accidental death or serious injury (criminal trials) a consultative report, law com no 279, april 2003; law com report no 282. the full report is available on the internet at www.lawcom.gov.uk. 42 recklessness following metropolitan police commissioner v caldwell [1982] ac 341, established broadly that for offences relating to personal injury the test was a subjective one, ie, “did the d foresee?” whilst for offences against property, for the denning law journal 254 lordships in g, notably, lord bingham and lord rodger, considered it possible that recklessness could have different meanings in relation to different offences). the objective standard of “ought to have foreseen” in the dvcva is also found in osman44 where the ambit of art 2 of the european convention on human rights – right to life – is articulated with regard to public authority liability, making public authorities liable for failure to protect an individual’s “right to life” if “they knew of a risk to an individual or ought to have known”, that such a risk existed. the formulation of an objective test which is a higher standard than a subjective test is clearly driven by the difficulties presenting the prosecution in cases where two parties blame each other for the death of a child or where both simply deny that they did it. the dvcva places a duty on the household member to protect the child or vulnerable person in line with the direction of the trial judge to the jury in lane (cited above) where the judge deemed responsible those who have care and custody of the child, although at the time this direction was held by the court of appeal to be a misdirection. an offence under section 5 neither seems to sit with the general principles on recklessness or gross negligence. the burden of proof is on the prosecution (section 5(1)(d)(ii)(a)), to prove that d failed to take steps as he could reasonably have been expected to take to protect the victim. bessant, for example, points out that in assessment of the element “foresaw or ought to have foreseen” the government do not envisage that a member of the household who could not have reasonably foreseen the risk would be caught by this offence. as baronness scotland observed: “for example, it may be that an elderly grandmother in the household was too confused to recognise and act on any sign of risk…”45 the home office circular46 states: “…depending on the facts of the particular case the court may find that the defendant may have been too frightened to take some of the steps which in other circumstances might have been available to them…there may be limited steps which they could reasonably have taken in order to protect themselves, and even more limited steps which it would be reasonable for example, criminal damage, the test was an objective one ie, “would a reasonable person have foreseen?” it would appear that the test now is subjective. 43 r v g and another, hl [2003] 4 all er 765, has overruled caldwell and re-asserted a subjective test requiring awareness of risk for offences of criminal damage. 44 osman v uk (case 87/1997/871/1083), echr [1999] 1 flr 193. 45 hansard, hl, col 1158, march 9, 2004, baroness scotland. 46 home office circular 9/2005 the domestic violence and victims act 2004: the new offence of causing the death of a child or vulnerable adult, 04/03/2005, home office. the denning law journal 255 them to take to protect the child or vulnerable person who was at risk from violence… this offence is premised on a duty to protect the vulnerable person from harm. all members of the household who had frequent contact with the victim would have that duty. the fact that the defendant may be young…, feel intimidated or have suffered violence, will not in itself be conclusive evidence that it was reasonable for the defendant not to take any steps to protect the victim.”47 it is important that prosecuting authorities and the courts recognise that in cases where children are abused female partners are also frequently assaulted by the perpetrator. many mothers and female carers who are responsible for the care of children and who experience violence or the threat of violence may be unable to take “reasonable steps” or else to recognise the risks to the child because of their own fear and inability to act. the us case, people v steinberg (1989)48, involving the death of lisa nussbaum the adopted daughter of hedda nussbaum, and the uk case r v emery and hedman (1972), involving the death of (chanel hedman) the daughter of sally emery and brian hedman, provide two clear examples where women who were battered and terrorised by the perpetrator were unable to act to prevent the deaths of children in their care. in the us case,49 lisa nussbaum died of injuries to her head and body inflicted by joel steinberg, (hedda nussbaum’s cohabitant). hedda nussbaum herself sustained a wide range of chronic injuries over time, including a broken nose and gangrenous wounds including a ruptured spleen. in giving evidence for the prosecution she said she ate when permitted to do so, went to the bathroom when permitted to do so, and when asked by the prosecution why she did not call an ambulance for lisa when she knew that the child was dangerously ill, she said, “joel told me he would get lisa up and i didn’t want to show disrespect.”50 in the uk case r v emery and hedman 51 both parties were charged with assaulting 11 month old chanel hedman and with causing suffering to her. she was found to have 22 injuries, including 11 broken ribs. neither was charged with her murder or manslaughter because the prosecution 47 home office circular 9/2005 the domestic violence and victims act 2004:the new offence of causing the death of a child or vulnerable adult, 04/03/2005, home office para 18-24. 48 the trial was held in 1989 and a video documentary made of the trial inside story on trial transmitted by bbc1 june 7, 1989, bbc programme number: ldfx410k. 49 the people of the state of new york, respondent, v joel steinberg, also known as joel barnet steinberg, appellant no. 100 court of appeal of new york, 79 n.y.2d 673; 595 n.e.2d 845; 584 n.y.s.2d 770; 1992 n.y. lexis 1590. 50 people v steinberg trial documentary see note 48. 51 (unreported) november 3, 1992. the denning law journal 256 were unable to determine which of them inflicted the fatal injury. the court heard that sally emery, suffered from post-traumatic stress syndrome following repeated assaults from hedman, and that she was in such fear that she was incapable of getting appropriate help and assistance for the child.52 both hedda nussbaum and sally emery were unable to take “reasonable steps” to prevent the abuse of the children in their care. such cases illustrate the problem under the dvcva that may present the defence in establishing that a co-defendant could not take reasonable steps to protect. more recently the ullah case53 illustrates the predicament of a mother’s inability to protect her child where a partner is violent. sitab ullah, was convicted of murder, he believed that his baby daughter was possessed, and battered and abused her. the child’s mother, salma begum, pleaded guilty to child neglect. she gave evidence from behind a screen, (following a special measures direction) and told the court how ullah had said that samira was not his child and was possessed by spirits. “he didn't want me to feed her too much. he complained she was becoming greedy because he thought the thing inside her wanted to be fed all the time.” 54 she had on two occasions been re-housed because of the domestic violence she suffered. counsel, described her as a woman who showed the classic signs of being a battered wife unable to take reasonable steps to protect her child. the court sentenced her to 15 months imprisonment for child neglect.55 more recently sandra mujuru, was charged with failing to protect her daughter (section 5 dvcva) her partner was convicted of murdering the child. sandra mujuru was described by the judge as a “decent young woman who was in a vulnerable position”56 and given a non-custodial sentence. a woman’s fear of the perpetrator may also prevent her from speaking about what has occurred. prosecuting authorities and the courts should be open to this reality and it is here that an expert witness57 addressing the court on the effects of violence on the mother or carer might be of assistance to the court. 52 cited in r v hurst [1995] 1 cr app rep 82. 53 the guardian, december 23, 2005. 54 the youth justice and criminal evidence act 1999, part ii, chapter i (ss. 16 to 33) “fear or distress they are likely to suffer when giving evidence” (section 17). 55 the guardian, december 23, 2005. 56 express, may 6, 2006. 57 in this context it is worth noting the public condemnation of mothers of child victims. in the us case against gabriela hernandez,a ventura county judge sentenced her to 11 years and told the 23-year-old he could not understand why she failed to stop her husband from beating her two year old daughter to death. the 2nd appellate district court overturned the 1998 conviction, saying that the ventura county superior court judge in that trial should have allowed expert testimony on her being a battered wife. (los angeles times, april 24, 2001). the denning law journal 257 the law commission, in its report, emphasised that silence of itself should not inculpate in such circumstances, and said: “…where the evidence was such that the defendant was so close to the events that he or she must either have been the perpetrator, or been complicit in it, or be able, even if only by exculpatory evidence, to cast light on which other person was responsible for the child's death or injury, then the court may well conclude that the circumstances so called for an explanation from him or her, as a person with the statutory responsibility, that it would be proper to permit the jury to draw an adverse inference from the defendant's silence. in such a case the ‘eloquent silence’ of the defendant might be said to be the ‘decisive’ element in a decision to convict but it would not mean that the defendant was convicted ‘solely or mainly’ on an inference from silence any more than the ‘decisive’ straw is the ‘sole or main’ cause of the camel's broken back.”58 whilst section 6 of the dvcva allows adverse inferences to be drawn from a failure to give evidence or a refusal to answer a question, it will be a matter for the judge whether a direction is appropriate: “6(1) subsections (2) to (4) apply where a person (‘the defendant’) is charged in the same proceedings with an offence of murder or manslaughter and with an offence under section 5 in respect of the same death (‘the section 5 offence’).(2) where by virtue of section 35(3) of the criminal justice and public order act 1994 (c. 33) a court or jury is permitted, in relation to the section 5 offence, to draw such inferences as appear proper from the defendant's failure to give evidence or refusal to answer a question, the court or jury may also draw such inferences in determining whether he is guilty (a) of murder or manslaughter, or (b) of any other offence of which he could lawfully be convicted on the charge of murder or manslaughter, even if there would otherwise be no case for him to answer in relation to that offence. (3) the charge of murder or manslaughter is not to be dismissed under paragraph 2 of schedule 3 to the crime and disorder act 1998 (c. 37) (unless the section 5 offence is 58 see note 41 above, paras 6.86 and 6.87 of the law commission report. the denning law journal 258 dismissed). (4) at the defendant's trial the question whether there is a case for the defendant to answer on the charge of murder or manslaughter is not to be considered before the close of all the evidence (or, if at some earlier time he ceases to be charged with the section 5 offence, before that earlier time).” the predicament for the battered woman in such circumstances is expressed by bessant who asserts: “the result of section 5 and section 6 together is to present an unenviable choice to the defendant: fail to give evidence, thereby risk adverse inferences and a prosecution on the section 5 offence, or risk giving evidence which may bolster a weak prosecution case for murder or manslaughter” (sic).59 the position with regard to the drawing of adverse inference at trial is governed by r v cowan60 where the court of appeal considered the effect of the section together with the specimen direction published by the judicial studies board (jsb). the house of lords in r v becouarn61 upheld cowan as good law. there is a further problem with section 5 which is that it is not necessary for the jury to reveal on what basis they are convicting either of the co-defendants. so, a jury may return a guilty verdict on co-defendant a and co-defendant b, where they believe that defendant a caused the death and that defendant b allowed the death. a judge in sentencing faced with this scenario could sentence defendant b on the basis that s/he caused the killing of the child when in fact the jury did not believe this to be the case. to avoid this an application for a special verdict to ascertain the basis of the jury’s verdict could be made. it would be essential in my view that such an application is made.62 (this section will require amendment to severe “causing” from “allowing” leaving “allowing” as an alternate charge). with regard to sentencing, the maximum penalty of 14 years or less for this offence63 (which is less than the maximum for manslaughter and murder)64 is designed to 59 bessant note 19 above p.5. 60 [1995] 4 all er 939. 61 [2005] ukhl 55: [2005] 4 all er 673. 62 for the importance of the use of special verdicts see malhi [1994] crim lr 755. see also the need where appropriate for a newton hearing. a newton hearing is where the d admits some facts of case but disputes others, or admits facts of case but disputes the charge. for example, a newton hearing may be requested by the defence where d admits stealing a mobile phone from a person using it in the street and admits the facts (admitting to theft) but does not admit to a charge of robbery (which requires the additional element of fear or force). the newton hearing is considered a trial where the judge considers submissions before proceeding to sentence, see r v newton [1983] crim lr 198. 63 dvcva 2004 section 5 ss7. 64 see criminal justice act 2003, chapter seven, section 269. the denning law journal 259 induce one party to give evidence against the other. if both parties can be sentenced to up to a maximum of 14 years it may not be much of an inducement. rights whose rights? finally, the trouble with domestic violence assaults perpetrated against adults is not only a question of substantive law but remains one of effective prosecution. getting victims to court remains an intransigent problem largely because women are afraid to give evidence against perpetrators. the cja 2003, section 116 provides for putting before a court a victim’s statement in place of her oral testimony, as one of the exceptions to hearsay, if: “…the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence” (section 126 (1)(b)). applications by the prosecution to admit witness statements made to police are subject to defence objections that admission of such documentary evidence abrogates the fairness of the trial under art 6 (3)(d) of the european convention of human rights (echr) since the witnesses evidence cannot be tested or the witness cross examined as to her evidence. there is very little jurisprudence on the specific circumstances prevailing in domestic violence cases on this point. however, the strasbourg jurisprudence has established in several cases that the admission of a witness statement will not automatically be held to have contravened art 6 even if it is the sole evidence against the defendant.65 in any event, the question of whether the admission of a statement renders a trial unfair is a matter for national courts.66 this question was considered in the specific context of domestic violence in r (on the application of robinson) v sutton coldfield magistrates' court,67 where an application for judicial review was dismissed on both grounds of the application. the first ground was that evidence of bad character had wrongly been admitted and the second ground that the defendant had been deprived of the opportunity to cross examine the witness as her statement was accepted in place of her attending court and giving evidence because she said she was in fear. more recently the sentencing guidelines council68 has issued a consultation paper on domestic violence which proposes that the following 65 r v campbell, [2005] ewca crim 2078. 66 r v sellick v sellick [2005] ewca crim 651, [2005] 1 wlr 3257. 67 queen's bench division (divisional court) [2006] ewhc 307 (admin), co/4926/2005, (transcript: smith bernal wordwave). 68 sentencing guidelines council consultation paper overarching principles: domestic violence. the denning law journal 260 aggravating and mitigating factors should be taken into consideration by sentencers. the aggravating factors include; the presence of children, the use of violence in contact arrangements made in respect of children, where the victim is particularly vulnerable, where there is a history of domestic violence, a history of breaching court orders and where the victim is forced to leave the home. mitigating factors, they suggest, include the use of violence as an isolated incident, and good character. although the sgc acknowledge that in such cases the offender may have two characters and good character outside the home should only be of minor relevance. the sgc also warn that sentencers should be wary of attempts by the defendant to suggest that the violence was provoked. the sgc also suggests that the wishes of the victim should be treated with caution since there is a risk that a plea for mercy made by victims might be induced by the offender. as a general proviso the proposals stress that serious violence will warrant a custodial sentence. they also propose that where the offence has passed the custody threshold and a short custodial sentence is anticipated certain exceptions to custody (in these cases) might be indicated where there is genuine remorse, where there is a real prospect of rehabilitation and reform, and where preservation of the relationship is intended. these are, as the proposals state, exceptions and the circumstances would need to be exceptional. the importance of these proposals in their effort to introduce some rationality into the sentencing decision has been misrepresented by the media which has failed to consider the proposals in context. it has been widely reported that the proposals are suggesting that a defendant who says he is “sorry” will evade a custodial sentence.69 it is important that the proposals in their entirety receive proper and full consideration in the effort to address the problem of domestic violence. 69 press reports were somewhat distorted suggesting that the guidelines were advocating non-custodial sentences for offenders who said “sorry.” the times april 12, 2006. legislation commentary susan edwards( introduction background and context sentencing a new kind of homicide rights whose rights? the university of buckingham a brief history the university of buckingham was opened in february 1976 as the university college at buckingham by thatcher m.p., now baroness thatcher of kesteven, the university's chancellor emeritus. a royal charter was granted in march, 1983, under which the university college became the university of buckingham. the university's chancellor is sir martin jacomb who succeeded baroness thatcher in 1998. the university's first chancellor was lord hailsham of st.marylebone, a former lord high chancellor of england the university of buckingham is unique among british universities in that it receives no direct financial assistance from the state. buckingham's founders believed that if universities relied primarily on the state for their funding the quality of their teaching and research would ultimately suffer as direct interference by the state with the processes of administration, recruitment and teaching increased. they also believed that too many graduates left universities after receiving a too narrowly specialised training on the one hand or a training that was insufficiently rigorous on the other. by contrast, buckingham's emphasis on exposing its students to a broad range of subjects helps to produce graduates whose specialised knowledge of tlleir chosen field of study is complemented by an acquaintance with other areas of scholarship. another special feature is tile four-tenn year which enables the university to provide as many weeks teaching in two years as other universities provide in three. buckingham was a pioneer in widening access to university education. it operates with generous staff-student ratios in an attractive location with a high proportion of students accommodated on campus and on a scale which provides an intimate learning environment offering greater teacher support than is available in most institutions. whilst students from the british isles represent the largest single group, the university attracts students from allover the globe, with up to eighty nationalities being represented at anyone time. the university aims to meet the individual needs of students by placing strong emphasis on both educational quality and research achievements. vlii buckingham law school the buckingham law school offers programmes of study leading to the degrees of llb and llm, as well as providing support for postgraduate degrees by research. law may be studied at an undergraduate level either as a single honours degree, or may be studied with languages or politics or as a joint honours degree with business finance and other subjects. these degrees all qualify students for direct admission to the vocational stage of training for practice as a solicitor or barrister in england & wales, subject to the current regulations of the professional bodies concerned. students are admitted to the llb programmes in january and july each year, and will normally complete their studies in two calendar years. there is also a part-time evening degree programme which admits students in september and various distance learning courses. the school has a well-balanced mixture of nationalities and age groups which contributes to the buckingham law school's enriching environment. law graduates from the university are to be found throughout the united kingdom, as well as in the top city finns in london, bmssels and paris; in singapore, malaysia and hong kong. many have gone on to postgraduate study both at buckingham and at other universities. as part of the university's policy of maintaining the high quality of the education which it offers, the buckingham law school is committed to small group tuition. tutorial groups normally consist offout to five students, and in the foundation subjects are held weekly. the programme seeks to develop students' intellechlal powers by exposure to legal reasoning and at the same time to provide a broad education in the methodology and content of the common law. students are admitted to the llm programme in international and commercial law in september and january each year. the programme offers a broad range of optional courses to students who already hold a good first degree in law. like the llb, the programme attracts students from a wide range of ages and nationalities, including a number whose first degree is not from a common law jurisdiction. the school also admits students to the degrees of llm and dphil by research. those wishing to receive further infonnation about buckingham law school including the programmes of study which it offers, are invited to contact the dean, alistair alcock, ma (cantab), msi (dip), barrister. ix conditional payments and insolvencythe quistclose trust gerard mccormack* it is axiomatic that assets which form the subject-matter of a trust do not constitute part of the property of an insolvent available for distribution among the insolvent's creditors. persons responsible for administering the affairs of insolvents take the property of the insolvent subject to equities. one such equity that must be recognised and upheld is the interests of beneficiaries under a trust where the insolvent holds the bare legal title. in this article the applicability of the doctrine oftrusts in the realm of conditional payments will be considerd. if a lender lends money on condition that it is used for a particular purpose and/or paid back out of a particular fund, or if a purchaser pays in advance on condition that the money is used to provide something he wants, to what extent can the lender or payer enforce the conditional agreement?1 there is something of an analogy with prepayments in sale of goods situations. it is possible for a seller of goods to retain title to the goods notwithstanding delivery of the goods to the buyer until the goods have been paid for or some other condition has been fulfilled. conditional loans or payments are usually discussed under the rubric of the quistclose trust and it is perhaps convenient to continue this classification. 2 the quistclose trust the locus classicus is barclays bank ltd. v. quistclose investments ltd.3 this is a case where quistclose lent a company, rolls razor ltd., some £210,000 to allow rolls razor to pay a dividend it had already declared. rolls razor sent the money to its bank, asking it to pay it into a separate dividend account and stating that the •• school of law, the university of essex i. the link between reservation of title clauses in sales of goods and conditional loans or payments has not always been borne in mind when one or other of the two phenomena have been examined. however, the two are brought together in the excellent article by goodhart and jones, "the infiltration of equitable doctrine into english commercial law" (1980) 43 m.l.r. 489. for a comprehensive examination of reservation of title clauses see mccormack, reservation of title (2nd. ed., 1995). see also priestley, "the romalpa trust and the quistclose trust" in p.o. finn ed., equity in commercial relationships (1987); milman and durrant, corporate insolvency law and practice (2nd. ed., 1994), chapter 8; m. bridge, (1992) 12 o.j.l.s. 333 and c.e.f. rickett, (1991) 107 l.q.r. 608. 2. some would argue however that the re kayford ltd. [1975] 1 w.l.r. 279 line of authorities are not true examples of the quistclose trust properly so called. 3. 11970]a.c. 567. 93 the denning law journal money was to be used only to pay the dividend. but before the dividend could be paid rolls razor went into voluntary liquidation, leaving quistclose and the bank to dispute ownership ofthe £210,000. the company's bank claimed the right to set off the £210,000 credit against a debit balance in another account. the claim failed. the money was held to be impressed with a trust in favour of quistclose should the primary purpose of the payment fail. lord wilberforce said that the mutual intention of quistclose and of rolls razor ltd. and the essence of the bargain was that the sum advanced should not become part of the assets of rolls razor ltd. but should be used exclusively for payment of a particular class of its creditors, namely, those entitled to the dividend. this entailed the necessary consequence that if, for any reason, the dividend could not be paid, the money was to be returned to quistclose. the word "only" was not capable of bearing any other effect. 4 his lordship was emphatic in his disavowal of the idea that a transaction giving rise to a legal action for debt could not also create a trust. he said: "there is surely no difficulty in recognising the co-existence in one transaction of legal and equitable rights and remedies; when the money is advanced, the lender acquires an equitable right to see that it is applied for the primary designated purpose ... : when the purpose has been carried out (i.e. the debt paid) the lender has his remedy against the borrower in debt; if the primary purpose cannot be carried out, the question arises if a secondary purpose (i.e. repayment to the lender) has been agreed, expressly or by implication: if it has, the remedies of equity may be invoked to give effect to it, if it has not (and the money) is intended to fall within the general fund of the debtor's assets) then there is the appropriate remedy for recovery of a loan. i can appreciate no reason why the flexible interplay of law and equity cannot let in these practical arrangements, and other variations if desired; it would be to the discredit of both systems if they could not."5 the early authorities in upholding the claim put forward by quistclose, the house of lords followed a long line of cases dating back to the beginning of the last century. according to lord wilberforce the fact that arrangements of this character for the payment of a person's creditors by a third person, give rise to a relationship of trust, in favour, as a primary trust, of the creditors, and secondarily, if the primary trust fails, of the third person, has been recognised in a series of cases over some 4. ibid. at 580. 5. ibid. at 581-582. 94 conditional payments and insolvency the quistclose trust 150 years. toovey v. milne marks the fons et origo of this stream of authority.6 abbott c.j. said: "i thought at the trial, and still think, that the fair inference from the facts proved was that this money was advanced for a specific purpose, and that being so clothed with a specific trust, no property in it passed to the assignee of the bankrupt. then the purpose having failed, there is an implied stipulation that the money shall be repaid."7 in toovey v. milne a advanced money to his brother-in-law, b, for the purpose of b settling with his creditors. 8 that purpose failed and b was declared bankrupt. what was left of the money was repaid to a by the bankrupt. the court held that this repayment was protected and that the assignees in bankruptcy could not recover the money so repaid. the principle enunciated in toovey v. milne was applied sub silentio as it were in gibert v. gonard since the case is nowhere cited.9 gibert v. gonard is a case where a lent money to b for the purchase of a particular business. b in fact paid the money into his general bank account and drew against it to the extent of several hundred pounds for the purpose of meeting certain of his own personal liabilities unconnected with the business to be purchased. b became bankrupt before the property acquisition could be completed and it was held that a was entitled to follow and recover the money in the bank account in the same manner as if it had been in terms a trust fund. according to north j. it was very well known law that if one person makes a payment to another for a certain purpose, and that person takes the money knowing that it is for that purpose, he must apply it to the purpose for which it was given. he may decline to take it if he likes but if he chooses to accept the money tendered for a particular purpose there was a legal obligation to apply it for that purpose. 10 in other words a duty was cast upon the borrower which placed him in the position of a trustee of the money advanced. re rogers is another authority, this time of the court of appeal, to the same effect. ii this is a case where a, a money-lender, lent money to b to enable pressing creditors to be paid. some of that money was applied by b towards meeting the claim of c, a judgment creditor. b was adjudicated bankrupt and the question arose whether the trustee-in-bankruptcy could sue c to recover the money. the court of appeal declined to answer in the affirmative. the holding was that since the advance to b 6. (1819) 2 b. & ald. 683. see also edwards v. glynn (1859) 2 e. & e. 29; giben v. gonard (1885) 54 l.j. ch. 439; re rogers (1891) 8 morr. 243; re drucker [1920] 2. k.b. 237; re watson (1912) 107 l.t. 783; and re hooley [1915] 84 l.j.k.b. 181. see also the line of cases mentioned by goode infra. n.59 at pp. 180-181 including re pal/itt [1893] 1 q.b. 455; re mid-kent fruit factory [1896] 1 ch. 567; re city equitable fire insurance co. ltd (no.2) [1930] ch. 293. 7. /bid. at p. 684. 8. ibid. the early cases are well analysed by milieu, (1985) 101 l. q.r. 269 at 270-274. 9. supra. n.6 10. ibid. at 440. 11. 'supra. n.6.' millett supra. n.s, at 273 describes it as the decision of a strong court of appeal. the court consisted of lindley, bowen and kay l.jj. 95 the denning law journal was for the special purpose of enabling his creditors to be paid, it was impressed with a trust for that purpose and never became the property ofb. lindley l.j. observed: "i entertain no doubt that [a] could have obtained an injunction to restrain the bankrupt from using that money for any purpose except that of paying his pressing creditors. if this be so, the money never was the bankrupt's in any proper sense so as to vest in his trustee as part of his general assets. "12 kay l.j. stated: , 'the desire and intent of [a] . . . was to prevent the bankruptcy of [b]. . . . the true result of the evidence seems to me to be that the advance by [a] was for this special purpose, and the money was impressed with a trust, so that [a] could have prevented its being otherwise used. "13 as one commentator has pointed out one striking characteristic of these 19th. century cases is the immediacy of the debtor's need for outside sources of funding. 14. the party advancing the money is doing so on an emergency or rescue basis while the debtor serves merely as a conduit pipe through whom the money is channelled to the outside creditor. it can fairly be said that the debtor's possession of the money does not mislead. nobody is induced into further dealings with him on the basis of a false assumption as to creditworthiness. any benefit that might accrue to general creditors if the conduit pipe broke down would be pure windfall. moreover the payer is not receiving any special premium consequent on the transaction being characterised as a mere loan. thus it does not seem unfair to general creditors if the payer is allowed to return or recover the money as the case may be. doctrinal criticisms of quistclose the notion of the quistclose trust has engendered some discussion and disquiet insofar as the finer points of the law of trusts are concerned. is issues for debate include whether the trust is properly constituted, questions of enforcement, revocability and the identity of the beneficiary. consideration of these questions will be postponed until later in the article but one might legitimately inquire here about why the primary purpose was deemed to have failed in quistclose. some observers have no doubts. for instance in re northern developments (holdings) ltd. sir robert megarry v.c. said: "[i] n the quistclose case, the primary purpose was clear, simple and definite, both in its ambit and frustration. the purpose was to pay a particular debt due to particular creditors upon a particular date; and once the company [b] had 12. ibid. at 248. 13. ibid. at 249. 14. see bridge supra. n.!. is. see in particular millett ·supra. n.s·, and rickett supra. n.!.2 96 conditional payments and insolvency-the quistclose trust decided to go into liquidation, that primary purpose plainly could never be accomplished. once the voluntary winding up had commenced, the dividend could not be paid in competition with other creditors . . . and so in the circumstances no trust for the payment of the dividend could be carried out. "16 there are some difficulties with this analysis however. 17 for a start the dividends had actually been declared before the loan was obtained. case-law establishes that the declaration of a dividend by resolution of the shareholders brings into being an immediate debt in their favour unless a later date for payment has been expressly specified. the argument therefore is that the trust to pay the dividends was complete. subsequent liquidation of the company could not unravel that trust. 18 in his exploitation megarry v.c. relied on what is now section 74(2)(f) of the insolvency act 1986 which relegates shareholder claims for unpaid dividends behind debts due to external creditors. clearly the statutory provision precludes debts based upon unpaid dividends being proved in competition with the claims of outside creditors. the legislative statement would not seem though to catch trusts of dividends. 19 as one judge writing extra-curially put the matter: "it does not prevent a trustee from paying trust money, which ex hypothesis does not belong to the company, to the persons beneficially entitled thereto. "20 the better view may be that the underlying purpose behind the conditional loan arrangements in quistclose was not merely the payment of a dividend to shareholders but also the preservation of the company as a going concern. 21 in other words, the case is explicable with reference to a corporate salvage rationale.22 a similar explanation may be prof erred in respect of re e. v. t.r. ltd. 23 this is a case where the appellant, b, had the good fortune to win a big prize on the premium bonds. he was not in the business of lending money but was persuaded to lend £60,000 to a company, evtr ltd., that was experiencing financial difficulties. the company was run by a friend of his. b was advised by his accountant, in no uncertain terms, that he would be wasting his money if he simply lent it unconditionally to the company. what happened therefore, was that b advanced to solicitors acting for evtr ltd., 16. unreported, october 6, 1978. despite its unreported status the case has been referred to extensively by academic commentators and was also the subject of lengthy discussion in carreras rathmans lid v. freeman mathews lid. [1985] ch. 207. 17. see generally h.a.j. ford and w.a. lee, principles afthe law aftrusts (1990) at p.31; millett 'supra. n.8', at 275-276; rickett supra. n.1.2; oditah (1992) 108 l. q.r. 459 at 475. 18. millett ibid. at p. 276 argues that there is not good reason why the rights of the shareholders to the money should be affected by the subsequent liquidation of the company, b. the desire of b's liquidator to repay the loan to a rather than to pay the dividend is understandable though as the effect of paying the dividend would be to substitute a, an ordinary creditor, for c, a deferred creditor, to the detriment of the general body of creditors. 19. see oditah, supra. n.17 at 475. 20. see millett, supra. n.8, 269 at 276. 21. it might also be the case that there was a further condition attached to the payment to the effect that the money should be utilised for paying dividends only if rolls razor obtained further finance by a named date. on this point see [1968] ch. 504 at 549-551. 22. see r.p. austin, (1986) 6 o.l.l.s. 444 at 455. 23. [1987]b.c.l.c. 646. 97 the denning law journal the sum of £60,000 "forthe sole purpose of buying new equipment". unfortunately, evtr ltd. did not have the balance necessary to buy the equipment outright and so a more complicated scheme was embarked upon with two other companies. the first company was the manufacturer of the equipment. evtr ltd. contracted with this company for the supply of new equipment to be delivered within 7 months and in the meantime to supply the company with temporary equipment. evtr ltd. also entered into a contract with another company under which the second company agreed to take over evtr ltd.'s obligations under the contract with the manufacturer by buying the new equipment and then leasing it to evtr ltd. the contract involved evtr ltd. paying a deposit of £60,000 plus 36 monthly instalments. the bank who had financed evtr ltd. appointed receivers to the company before the new equipment arrived and the two supplier companies returned the £60,000 less various agreed deductions. the question arose whether the refunded sum formed part of the general assets of evtr ltd. available for distribution to its secured creditors or whether it was impressed with a trust in favour of b. this involved consideration of the point whether the original purpose of the transaction had been accomplished. in other words, had b been disappointed in his aim of making himself an unsecured creditor of evtr ltd?24 the court of appeal answered in the affirmative. dillon l.j. suggested that the purpose of b from which any trust was to be implied was, realistically, the purpose of evtr ltd, acquiring new equipment and not the purpose of evtr ltd entering into an abortive contract for the lease/purchase of new equipment. bingham l.j. opined that it would strike most people as very hard if b were in this situation to be confined to a claim as an unsecured creditor of the company.25 moreoever, it must be pointed out that b was not a trade creditor conversant with credit risk and the bank's debenture had been granted some time before the injection of credit by b. as one commentator perceptively observes: "the bank would have been a windfall creditor if the quistclose trust, and its failure of achievement, had not been recognised. "26 application of the conditional payment principle some controversial cases if the primary purpose of the payment had been carried out in quistclose then the result achieved is one of credit substitution.27 a, the payer, becomes a creditor of b, the person to whom payment is made, instead ofc, the third party creditors who are the ultimate intended recipients of the payment. before the payment was made, there was no pre-existing relationship of debt between a and b. 24. to borrow the felicitous expression of michael bridge supra. n.1 at 354.' 25. supra. n.23 at 652. the judge added that while it was literally true that the fund which the appellant, b, provided was applied to the stipulated purpose, the object of the payment was not achieved and that was why the balance was repaid. 26. see bridge supra. n.1 at 356. 27. see priestley, supra. n.1 at p.230 who points out that the attitude of other sources of finance might change if the credit substitution were known, but this is unlikely in the case of unsecured credit. 98 conditional payments and insolvency-the quistclose trust carreras rothmans ltd. v. freeman mathews treasure ltd. involves an extension of the quistclose principle in that a stood in a relationship of debt to b prior to the time of making the payment. 28 the plaintiff tobacco manufacturer arranged that the defendant advertising agency would place advertisements for it in newspapers, periodicals and by means of posters. the services of an agency were availe<i of for this purpose so as to secure deductions on advertisement fees. the advertising agency as principal thereby incurred debts to various media creditors. these debts it recharged to the plaintiff along with its own fees. the plaintiff became concerned about the solvency of the advertising agency. if the agency went into liquidation leaving media creditors unpaid the plaintiff's reputation would suffer. alternatively, it would have to payoff the media creditors to avoid disruption of a major advertising campaign that it had launched. therefore with the agreement of the defendant, the plaintiff paid into a special account a sum equivalent to the money due to the third party creditors. the advertisng agency went into insolvent liquidation but before the media creditors could be paid the liquidator froze the special account. the plaintiff, as had been feared, was forced to discharge the sums due to the media people so as to maintain its advertising initiative. in return it took an assignment of the debts due to the creditors. thereupon it sought to recoup the moneys in the special account: a claim resisted by the defendant and its liquidator. peter gibson j. acknowledged the factual differences between quistclose and the present case.29 in quistclose the transaction was one of loan with no contractual obligation on the part of the lender to make payment prior to the agreement for the loan. in the present case there was no loan but there was an antecedent debt owed by the plaintiff. he held, however, that this factual difference was not legally material. the principle in all these cases is that equity fastens on the conscience of the person who receives from another property transferred for a specific purpose only and not therefore for the recipient's own purposes, so that such person would not be permitted to treat the property as his own or to use it for other than the stated purpose.30 carreras rothmans has attracted some criticism on the score that it ignores the possible application of the preference provision in the insolvency legislation.31 basically the legislation invalidates acts done by a company within 6 months prior to the commencement of winding up which have the effect of giving a creditor a preference over other creditors and which were influenced by a desire to achieve that result. 32. the relevant period is two years if the act is done in favour of a person connected with the company otherwise than by reason of his being its employee.33 28. [1985] ch. 207. 29. ibid. at 222. 30. ibid. 31. see priestley, supra. n.l at 235-236. 32. sections 238-241 of the insolvency act 1986. the relevant period is two years in the case of a payment made in favour ofa person connected with the company otherwise than by reason only of being its employee. for the definition of connected person see s.249 of the act. prior to the insolvency act reforms, the law concerned itself only with fraudulent preferences as defined in 5.615 of the companies act 1985 re-enacting earlier legislation. 33. for the definition of connected person see s.249 of the 1986 act. 99 the denning law journal the material provisions are contained in section 238-241 of the insolvency act which revamp the old law as embodied in section 615 of the companies act 1985 and preceding legislation. the previous statutory dispensation nullified fraudulent preferences and these were judicially held to cover only acts done with the dominant intention to prefer. 34 a payment made under pressure, however, escaped invalidation as a fraudulent preference as the element of pressure was said to remove the dominant intention to prefer. 35 thus the greater the pressure exerted by the debtor the greater the likelihood that any payment to him would not be stigmatised as a fraudulent preference. 36 the relevance of cases on the old law in the new statutory context was however denied by millett j. in re mc bacon ltd. the new law strikes down acts that were influenced by a desire to put a creditor in a superior position vis-a-vis other creditors. the judge distinguished between desire and intention. intention was objective while desire was subjective. a person might have to choose between the lesser of two evils withoqt desisting either. a payment could only be attacked if there was a positive wish to improve the creditor's position. once the requisite desire was present however the payment would be condemned. the desire need not be the causative or decisive factor in the transaction. something of a discordant note was struck by robert wright q.c. in re beacon leisure ltd. 38 he said that in many cases the difference between the objective test of intention and the subjective test of desire might be small. how does this exegesis apply in the present context? the argument goes something like this. carreras rothmans stands as authority for the proposition that the debtor of a company may discharge the debt by paying it to the company on terms which require the company to lay it aside and hold it on trust for payment only to creditors of the company who have been nominated by the debtor. the argument proceeds along the lines that the creditor negotiates away the right to receive the money beneficially in exchange for an arrangement under which one class of its unsecured creditors are satisfied from the sum paid. the consensual element in the payment is said to transform it into an act done by the recipient of the payment and so attracting the invalidating effect of the preference provisions.39 this conclusion is by no means 34. the judgment of lord tomlin in peat v. gresham trust ltd. [1934] a.c. 252 is to this effect and his observations have been amplified in numerous other judicial decisions. 35. see for instance re eric holmes lid. [1965] ch. 1052. so if a creditor is paid off in response to a threat of legal action the intention of the company paying the debt is construed as being that of removing the threat rather than preferring the creditor. 36. opinions differ about whether this state of affairs has survived the new statutory regime. it may be argued however that giving a preference to a person cannot be said to have been influenced by a desire to put the person in a preferential position if the preference would inevitably have been given whether or not the desire was present in other words if there was an overwhelming reason for giving the preference rendering all other considerations superfluous. a majority of the cork committee favoured the retention of the old rule. their contention was that a creditor who has taken active steps to obtain payment of his own debt should in principle be allowed to retain the fruits of his diligence (cmnd. 8558 (1982) at para. 1256). 37. [1990] b.c.l.c. 324. 38. [1991] b.c.c. 213. 39. it should be noted that priestley's argument (supra n.l) is made in the context ofs.122 of the australian bankruptcy act which is worded differently than its u.k. counterpart. 100 conditional payments and insolvency-the quistclose trust inevitable. if the payment is made only on condition that it is applied for a specific purpose the recipient can hardly be said to have bargained away the right to receive the payment without strings attached. moreover, the "influenced by a desire to" criterion may not be satisfied.40 there is another layer of complexity. if the primary purpose of the payment w~s carried through in quistclose one category of unsecured debt is substituted for another. one unsecured creditor is paid off and another takes its place. now to the what if. say a loan secured by a charge over the company's assets is made on condition that the amount ofthe loan is used to discharge earlier unsecured indebtedness. how does this affect the picture? generally floating charges granted by an insolvent company within the 12 month period prior to its liquidation are invalid except to the extent of any fresh advance.41 does the conditional loan count as a fresh advance?42 the answer seems to be no at least as a general proposition, though there is some discordance in the authorities.43. the incongruity dates from re matthew ellis & co ltd.44 in this case the court of appeal rejected the view advanced by astbury j. in re hayman, christy & lilly ltd. which exempted from the fresh advance exception cash payments made conditionally as to their mode of application. 45 romer l.j. said: "where a man advances money to a company on the security of a debenture on the terms that the money so advanced is to be applied by the company in discharge of one of its existing liabilities or in the acquisition of some asset which the company does not at the moment possess, the money paid by the lender did not cease to be cash paid to the company merely by reason of the imposition of that condition. "46 the other members of the court, lord hanworth m.r. and slesser l.j. were equally adamant about imposing the limitation that the fresh advance must not be applied in satisfaction of an antecedent debt. something of a via media was suggested, however, 40. it could be said that the payment has been made as a result of pressure which negates any desire to prefer. 41. the relevant provision in section 245 of the insolvency act 1986. according to this provision a floating charge on the company's undertaking or property created at a relevant time is invalid except to the extent of the aggregate of (a) the value of so much of the consideration for the creation of the charge as consists of money paid, or goods or services supplied, to the company at the same time, or after, the creation of the charge, (b) the value of so much of that consideration as consists of the discharge or reduction, at the same time as, or after, the creation of the charge, of any debt of the company, and (c) the amount of such interest (if any) as is payable on the amount falling within paras. (a) or (b) in pursuance of any agreement under which the money was so paid, the goods or services were so supplied or the debt was discharged or reduced. 42. see generally rajak, company liquidations (1981) at pp. 286-287. 43. at least kenny j. seemed to think so in the irish case re daniel murphy ltd. [1964] i.r. 1 at 15. 44. [1933] ch. 458. 45. [1917] 1 ch. 283, at 285. 46. [1933] ch. 458 at 477. 101 the denning law journal by lord hanworth m.r. he said that the court had to have regard to transactions which might often be complicated and difficult. the task was to determine whether in substance the debenture sought to be invalidated had been issued for cash paid to the company. 47 if it had been, then, although the money might have been used by the company for the purpose of meeting a liability already incurred, the security stood good. the facts of re matthew ellis & co ltd. , do not indicate villainy and perhaps show why the section was given the interpretation that it was. the case concerned an insolvent company that was granted a loan by its chairman. the latter was also a partner in a firm which supplied the bulk of its stock of goods to the company. the chairman considered that an advance might save the company. before advancing the money he was informed by his partners that they would only consent to continue to supply the company with goods on credit if the past debt to the firm was paid. the advance was made secured by a floating charge over the company's assets and out of this money a substantial sum was applied in discharging the past debt to the firm. it was held that the floating charge was good in respect of the entire sum advanced. a more absolutionist line on the section was taken by the northern ireland court of appeal in revere trust ltd. v. wellington handkerchief works ltd. 48. here the court expressed approval for the dictum that cash payments, to count as fresh advances, must be absolute and uncontrolled.49• andrews l.j. drew a clear distinction between a cash payment to the company and the payment of an existing liability of the company. the latter was not a cash payment to the company to do what it liked with as its own moneys.50 while revere trust ltd. v. wellington handkerchief works ltd., predates re matthew ellis & co ltd. in point of time, it is nowhere referred to in the latter case. re matthew ellis & co ltd. was considered but ultimately distinguished by simonds j. in re destone fabrics ltd. 51the judge suggested that the test in such cases may well be whether the transaction is to be regarded as one intended bona fide for the benefit of the company, or whether it is intended merely to provide certain moneys for the benefit of certain creditors of the company to the prejudice of other creditors of the company. 52 this test was applied by nourse j. in re gt whyte & co ltd.53 this is a case where a fresh secured loan was made by a wholly owned subsidiary of a secured creditor. the judge held that as a matter of substance the new advance was intended to secure the past indebtedness to the unsecured creditor and so the security was invalidated. so we are left with a "substance of the transaction" test. was the intention 47. ibid. at 474. 48. [1931] n.j. 155. 49. thus applying the dictum of astbury j. in re hayman. christy & lilly ltd. supra. n.45. 50. supra. n.48 at 155. 51. [1951] ch. 319. 52. ibid. at 324-325. 53. [1983] a.c.l.c. 311. see also re fairway magazines ltd. [1993] a.c.l.c. 643. 102 conditional payments and insolvency-the quistclose trust to provide a genuine commercial benefit for the company or merely to substitute secured for unsecured indebtedness? it should be noted that all these cases were decided under old legislation which invalidated floating charges created within a certain period prior to the commencement of winding up, except to the extent of "cash paid" to the company at the time of the creation of the charge, and in consideration for the charge. the wording has since been revised. the exception in s.245(2)(a) and (b) ofinsolvency act 1986 now covers the aggregate of: "(a) the value of so much of the consideration for th.e creation of the charge as consists of money paid, or goods or services supplied, to the company at the same time as, or after, the creation of the charge, (b) the value of so much of that consideration as consists of the discharge or reduction, at the same time as, or after, the creation of the charge, of any debt of the company . . ." it is submitted that the new wording and in particular, the introduction of paragraph (b) would make no difference to the result in the cases discussed. the contention is that the old debts are not in fact discharged as a matter of substance. 54 failure to take account of the invalidating provisions of insolvency legislation is also a criticism levelled at re kayford ltd. 55 this case concerned a company which carried on a mail order business. the company was in financial difficulties and took advice on how best to protect customers. the customers were sending money to the company in anticipation of being supplied with goods. the company was advised by accountants to open a customers trust deposit account into which all further sums of money sent by customers for goods not yet delivered should be paid, so that should the company be forced into liquidation, these sums could be refunded to the customers who had sent them. the company largely accepted that advice but instead of opening a new account used a dormant deposit ~ccount in the company's name. megarry j. held that a trust in favour of the customers had been created. the whole object of what was done was to ensure that the moneys remained in the beneficial ownership of those who sent them, and a trust was the obvious means of achieving 54. see gower's principles of modern company law (5th. ed .. 1992) at p.424 but compare r.e. pennington, corporate insolvency law (1991) at pp.221-222. 55. supra. n.2. it has been argued that re kayford ltd. and its direct derivatives are not examples of quistclose type trusts. the contention is that in these cases recovery by the original "lenders" is by virtue of an express trust rather than a resulting trust. for a development of this argument see rickett supra. n.1 at 609. in this article a broader commercial approach to conditional payments is taken and there is no doubt that re kayford ltd. at least in the way that the judge saw the facts, involves an example of a conditional payment. 103 the denning law journal this.56 the sender could create a trust by using appropriate words when he sends the money or the company could do it by taking suitable steps on or before receiving the money. if either was done the obligations in respect of the money were transformed from contract to property, from debt to trust. the judgment of megarry j. is characterised by a concern for members of the consuming public some of whom, in his words, "can ill afford to exchange their money for a claim to a dividend in the liquidation, and all of whom are likely to be anxious to avoid this. "57 some might think that this concern is misguided. for instance the cork committee on insolvency law and practice suggested that the customer who paid in advance for goods or services to be supplied later extends credit just as surely as the trader who supplies in advance goods or services to be paid for later.58 there was no essential difference. each gave credit; and if the credit was misplaced each should bear the loss rateably. on the other hand, prepayment customers may not perceive themselves as providers of unsecured credit. there is much to be said for the view of the office of fair trading that prepayment customers do not consciously become creditors, and that they have no means of securing the money which they advance. in re kayford ltd. megarry j. said that no question of a fraudulent preference arose. one was concerned here not with the question of preferring creditors, but of preventing those who pay money from becoming creditors, by making them beneficiaries under a trust. 59 this analysis has not been universally accepted. attention may have been diverted from the question of who owned the moneys at the time that the company declared itself trustee of them. if the company owned the moneys at that time, then the declaration of trust had the effect of impermissibly altering the statutory order of priorities for payment of creditors. 60 56. ibid. at 282. he said that payment into a separate bank account was a useful (though by no means conclusive indication of an intention to create a trust, but there was nothing to prevent the company from binding itself by a trust even if these were no effective banking arrangements. 57. ibid. at 282. the judge added: "in cases concerning the public, it seems to me that where money in advance is paid to a company in return for the future supply of goods or services, it is an entirely proper and honourable thing for a company to do what this company did, on skilled advice, namely, to start to pay the money into a trust account as soon as there begin to be doubts as to the company's ability to fulfil its obligations to deliver the goods or provide the services. i wish that, sitting in this court, i had heard of this occurring more frequently; and i can only hope that i shall hear more of it in the future." 58. cmnd. 8558 (1982) at para. 1052. 59. supra. n.2 at 281. see also goode, payment obligations in commercial and financial transactions (1983) p.18 n.64. 60. see waters, (1983) 21 alberta law review 395 at 417. on the other hand it has been argued that if money is received in circumstances in which the court would hold the recipient accountable as a constructive trustee, then there will be no preference because the creation of the fund will not have put the customer in a better position than that customer would have enjoyed in an ensuing bankruptcy or liquidation. in other words there is no factual preference regardless of whether there was the requisite desire to produce that effect. for this argument see hamish anderson, "the treatment of trust assets in english insolvency law" in ewan mckendrick ed., commercial aspects of trusts and fiduciary obligations (1992). the argument is developed infra in connection with the discussion of re chelsea cloisters ltd. (1981) 41 p. & c.r. 98. 104 conditional payments and insolvency-the quistclose trust despite all the criticisms re kayford ltd. , was followed by the court of appeal in re chelsea cloisters ltd. 61 this was a case where the company which was the underlessee of a block of flats granted numerous tenancies. it took a deposit from individual tenants in respect of any sum which might be due from the tenant at the end of the tenancy for damage, breakages and compensation. initially there were no special arrangements for dealing with the deposits of the tenants but when the company got into financial difficulties a chartered accountant was appointed to supervise the running of the company. this supervisor expressed a wish that the tenants' deposits should be kept separate from other moneys of the company and so they were segregated from the company's general assets and paid into a tenants' deposit account. the company went into liquidation and it was held that the deposits were held on trust for the tenants. lord denning said that the deposits were not impressed with a trust from the very beginning.62 the creation of the special arrangements, however, established a trust.63 no issue of improper preference was raised.64 according to lord denning the supervisor realised that the company was in a hopeless position; it had no money to pay anybody and there was a danger that these deposits might fall into the hands of the other creditors of the company, contrary to the justice of the case. 65 it must be pointed out, however, that the supervisor nowhere used explicit trust language; terminology that ought to have been familiar to a chartered accountant. the decision has been viewed as an exercise in discretionary justice. the company had gone into liquidation with total debts approximating to £50 million whereas the sum of the tenants' deposits was in the region of £20,000. greater joy would be experienced by meeting the claims of the tenants in full rather than by spreading the piteously small sum of money almost invisibly across the general range of creditors. 66 it has been suggested that for the company to claim beneficial ownership of the deposit money would involve more than a taint of fraudulent trading. under the legislation in force at the time re chelsea cloisters ltd. , was decided, where a company had gone into liquidation the court could direct particular payments to particular creditors who had been defrauded. 67 in 1986 a wider notion of wrongful trading was 61. (1981)41 p. & c.r. 98. the case was approved in re lewis's of leicester ltd. [1995] bcc 514. 62. ibid. at 101. he referred to potters v. loppert [1973] ch. 399. see also bridge l.j. at 102 and oliver lj at 104 who were disinclined to express an opinion on this point. 63. referring to henry v. hammond [1913] 2 k.b. 5151 and hughes v. stubbs (1842) 1 hare as well as re kayford ltd. supra. n.2. 64. hamish anderson, supra. n.60 at p. 178 point out that the person responsible had acted in the belief that there was an obligation to protect the deposits thereby negativing the possibility of there being an improper preference. in re vautin [1900] 2 qb 325 it was held with reference to the old statutory dispensation that a payment made under an honest and reasonable belief that there was a legally binding obligation to pay could not be struck down as an improper preference. see also on this point re lewis's of leicester ltd. [1995] bcc 514. 65. supra. n.61 at 102. 66. see bridge, supra. n.l at 357. 67. section 332 of the companies act 1948 as interpreted by a majority (lord denning m.r. and danckwerts lj.) of the court of appeal in re cyona distributors ltd. [1967] ch. 889. 105 the denning law journal introduced in the insolvency legislation68 but the concept of fraudulent trading was retained to cover specific cases.69 in situations of both frauduent and wrongful trading, however, payments ordered to be made only go to swell the general assets of the company. such payments cannot be earmarked by the court for specific creditors who may have been defrauded. application of the conditional payment principle some uncontroversial cases re kayford ltd. and re chelsea cloisters ltd. may be distinguished from re nanwa gold mines ltd. which seems safe from criticism.70 in re nanwa gold mines ltd. money was advanced on the faith of a promise to keep it in a separate account, and harman j. held that a trust had been created. he contrasted moseley v. cressey's co. where a simple statement that application moneys would be refunded was held not to bind moneys standing in a bank to the credit of the company, with a trust in favour of the depositors. the intent of the promise to keep in a separate account meant that the moneys would not be mixed with the company's moneys.n. many of the great cases in the company law field involve speculative projects in far flung corners of the globe during the halcyon days of imperial expansion. 73 such projects often involved great risk, and to minimise the risk factor the trust arrangement was often employed. financiers instead of advancing money directly to the company would advance it to intermediaries, trustees, who would release it to the company at various stages of the project. national bolivian navigation co. v. wilson involved such a project and arrangement. 74 this is a case where money had been subscribed by investors for a particular purpose namely the construction of a railway linking brazil and bolivia. the money was placed in the hands of trustees for the investors, and it was the duty of the trustees to pay portions of the money over to the company 68. section 214 of the insolvency act 1986. under this provision once a director, or shadow director, knows, or ought to have concluded, that there was no reasonable prospect that a company would avoid going into insolvent liquidation , he must take every step with a view to minimising potential loss to company creditors. otherwise the person may be declared liable to make such contribution (if any) to the company's assets as the court thinks proper. 69. ibid. section 213. this section applies to any liquidation whereas s.214 is confirmed to cases of insolvent liquidation. moreover, 213 covers any person who was knowingly party to the carrying on ofthe business in a fraudulent manner whereas s. 214 is limited to directors and shadow directors. 70. [1955] 3 all e.r. 219. see also national bolivian navigation co. v. wilson (1880) 5 app. cas. 176. elkins v. capital guarantee society (1900) 16 t.l.r. 423; re independent air travel ltd. [1961] i lloyd's rep. 604 and smith v. liquidator of james birrell ltd. 1968 s.l. t. /74 71. (1865) l.r. 1 eq. 405. 72. supra. n.70 at 223. 73. one might instance in this connection some of the cases on promoters like erlanger v. new sombrero phosphate co. (1878) 3 app. cas. 1218. 74. supra. n.70. 106 conditional payments and insolvency-the quistclose trust as portions of the intended railroad were constructed. the house of lords held that if no such railroad nor any portion of it was constructed, and its construction became impracticable, the bondholders were entitled to demand from the trustees repayment of what remained in their hands.75. another area where the quistclose principle has been uncontroversially applied lies in relation to employee claims for moneys in the hands of insolvent employers. a case in point is re independent air travel ltd. 76this is a case where a company insured the lives of its employees, three of whom later died in an air crash. it was a condition of employment that the company should insure the lives of the deceased employees for the latter's benefit. the insurers in fact paid over on foot of the insurance policies' moneys for distribution to the families of the deceased but the company went into receivership before this task could be done. plowman j. held that the moneys had been received on trust for the estate of the three deceased, although no express words of trust had been employed. a similar result was reached in the scottish case, smith v. liquidator of james birrell ltd. 77this is a case where a company had paid into a special bank account moneys received from an insurance comany representing different employee pension and insurance schemes which the company had decided to discontinue. the sum received was for the benefit of the employees in the employment of the company at the date of the discontinuance of the scheme. lord fraser, in the outer house of the court of session, decided that this money did not form part of the general assets of the company. the money was clearly distinguishable and capable of being disentangled from the company's own funds, and it ought to be paid to the former employees of the company entitled thereto. 78 formalities for the establishment of trust there remains to be considered the prerequisites for the creation of a valid express trust, namely the three certainties certainty of intention, certainty of subject-matter and certainty of obj~cts. moreover, if the declaration of trust relates to land, signed written evidence must be available before the trust can be enforced.79. certainty of intention this issue was discussed in re kayford ltd. where megarry j. said that a trust can be created without using the words "trust" or "confidence" or the like. the 75. according to lord blackburn the trust was created by the prospectus on the faith of which the bondholders, or those whom they represent, lent their money: ibid. at 207. 76. supra. n.70. 77. supra. n.70. 78. ibid. at 175. 79. section 53(l)(b) of the law of property act 1925. 107 the denning law journal pertinent question was whether a sufficient intention to create a trust had been manifested.80 sufficiency of intention to create a trust was not manifested in swiss bank corporation v. lloyds bank ltd. 81 the facts of the case are complicated, but the nub of the issue was whether a lender of money, the swiss bank corporation, had obtained any kind of proprietary interest in securities which the borrower, as the lender knew, wished to use the loan to invest in. the loan agreement did not actually cover such a proprietary interest, but in it, the borrower did promise that it would observe all the conditions attached by the bank of england to its consent for the loan. these conditions included the requirements that the loan was to be used exclusively for the purchase of certain foreign securities (f .lb.l securities) and that the interest on, and capital of the loan were to be repaid to the swiss bank corporation out of the f.lb.l securities or the proceeds of their sale. the borrower subsequently charged the f.lb.l securities to lloyds bank as security for a guarantee given in respect of a further loan from that bank. when the swiss bank corporation sought repayment of the loan, it claimed to have a better interest in the securities than lloyds bank. although the judge at first instance, brownewilkinson j., held in the plaintiff's favour, both the court of appeal and the house of lords held against the swiss bank corporation. none of the appellate judges in the swiss bank case could see anything in the loan which specifically said that the borrowers would repay the loan out of the f .lb.l securities, nor would they imply any such promise. both the court of appeal and the house of lords' judges were content to apply the law stated by lord w renbury in palmer v. carey: ••an agreement for valuable consideration that a fund shall be applied in a particular way may found an injunction to restrain its application in another way. but if there be nothing more, such a stipulation will not amount to an equitable assignment. it is necessary to find further, that an obligation has been imposed in favour of the creditor to pay the debt out of the fund. "82 the requisite certainty of intention to create a trust was also held not to have been established in re multi guarantee co ltd. 83 this is a case where a company, m.g., was incorporated to market warranties for domestic appliances, which provided insurance after the manufacturer's guarantee expired. v was the owner of a chain of shops and it operated the m. g. scheme by collecting premiums from its customers and then paying them over to m. g. v became concerned as a result of press reports that m. g. had not obtained proper insurance coverage for the scheme, and it negotiated with m. g. so as to protect the interests of its customers by safeguarding the money in the relevant m.g. account. to stave off proceedings for a mareva injunction or 80. supra. n.2 at 282. 81. [1982] a.e. 584. see also re multi guarantee co. ltd. infra. n.83. 82. [1926] a.c. 703 at 706-707. 83. [1987] b.e.l.e. 257. see also re bank of credit and commerce international s.a. (no.3) [1994] bee 462 where the argument based on the alleged existence of a quistclose type trust was very much a fall-back position and an unsuccessful one at that. 108 conditional payments and insolvency-the quistclose trust for an order for the interim preservation of property, m. g. agreed to transfer the money into a joint deposit account which could only be drawn on under the joint signatures of m.g.'s and v's solicitors. there were however no detailed terms concerning the basis on which withdrawals. might be made from this ccount. v succeeded in arranging its own insurance cover for the extended warranty protection, but before an agreement to release the money in the joint deposit account to v could be effectuated, m.g. went into liquidation. the question before the court was whether as v contended, m.g. had constituted itself a trustee of the money in the account, and in this way divested itself of all beneficial interest therein. the court of appeal held that m.g. had never displayed a sufficient intention to create a trust.84 the necessary certainty of intention had not been shown and thus the premium moneys constituted part of the general assets of m.g. the problem was that there were a number of possible destinations for the money in the joint account apart from being returned to v. for instance it could have been paid directly to any one or more of a number of possible insurers. on the other hand re multi guarantee co. ltd. was distinguished and a trust held to have been established in re lewis's of leicester ltd. 84. this is a case where a number of licensees occupied "shop within a shop" concessions in a department store. the licensees included those who sold their own goods but put the takings in the company's tills on standard terms which provided for them to receive from the company a payment equivalent to gross takings less returns and commission. the financial position of the company became parlous and it took steps to ensure that further receipts of licensees' takings, mistakenly believed to be already subject to a trust under the standard form agreements, were kept separate and identifiable in segregated accounts. did this mistaken assumption vitiate the intention to establish a trust on the basis that if a person believes that he is a trustee he cannot logically intend to create a trust for the first time. robert walker j. refused to accept this prosposition. in his view there had been segregation of moneys and the incorrect false assumption was a fortiori a reason for holding that a trust had been brought into being. certainty of subject-matter the property which is said to form the subject-matter of the alleged trust must be identifiable. a trust claim failed on this ground in re london wine co (shippers) ltd. 85 this case involved a wine merchant who appropriated part of its general wine 84. see the statement by nourse l.j. ibid. at 268. 84a. [1995] bcc514. 85. [1986] p.c.c. 121. the case was decided on november 7, 1975. see also export credits guarantee dept. v. turner 1981 s.l.t. 286. 109 the denning law journal stock to a specific customer order only when the customer came to collect the wine. the wine merchant went into receivership. oliver j. held that customers could not claim to be beneficiaries under a trust (of the wine) as the essential element of certainty of subject matter was absent. re london wine co (shippers) ltd. was distinguished in hunter v moss.85a in this case the defendant was the absolute beneficial owner of 950 shares in a company which had an issued share capital of i ,000 ordinary shares. he orally declared himself to be a trustee of these shares for the plaintiff. was there the requisite certainty of subject matter for the trust to be effective? the court of appeal answered in the affirmative in this particular case, since all the shares were of one class in one company and were of such a nature as to be indistinguishable from one another. they were all equally capable of satisfying the trust. 85b certainty of objects even if the requirements of certainty of intention and certainty of subject-matter are satisfied, there cannot be a valid rust for beneficiaries or purposes if those beneficiaries or purposes are themselves insufficiently certain.86 in such a situation of uncertainty the property is held on a resulting trust for the settlor. the word "resulting" is used in the sense of "springing back".87 the beneficial interest is said to spring back to the grantor but in reality it never left him. in quistclose itself the primary purpose of the payment was held to have failed so that the property was held on a resulting trust for the grantor. 88 85a. [1994] 3 all e.r.215. see alsore goldcorp exchange ltd. [1994] 2 all e.r. 806 and re stapylton fletcher ltd. !1995] i all e.r. 192. 85b. dillon l.j. said at 222, "just as a person can give, by will, a specified number of his shares of a certain class in a certain company, so equally, in my judgment, he can declare himself trustee of 50 of his ordinary shares in ... whatever the company may be, and that is effective to give a beneficial proprietary interest to the beneficiary under the trust. " 86. generally the only type of valid purpose trusts are charitable trusts because of the beneficiary principle, i.e. there must be beneficiaries who can apply to the court to enforce their rights. in the case of a charitable trust the attorney general, as guardian of the public interest, may enforce. however, the courts have recognised a certain anomalous category of non-charitable trusts. see generally re astor's settlement trusts [1952] ch. 534; leahy v. attorney generalfor new south wales [1959] a.c. 457; re denley's trust deed [1969] i ch. 373 and wicks v. firth [1983] a.c. 214. 87. "resulting" is derived from the latin verb resalire. 88. there has been some discussion as to the nature of this secondary trust. in the australian high court case australasian conference association ltd. v. mainline constructions pry. ltd. (1979) 141 c.l.r. 335 at 353 gibbs a.c.j. conceived of quistclose as standing for the proposition that where money is advanced by a to b with the mutual intention that it should not become part of the assets of b, but should be used exclusively for a specific purpose, there will be implied, at least in the absence of a contrary intention, a stipulation that if the purpose fails the money will be repaid. in quistclose, on the other hand, lord wilberforce seems to see the secondary trust as being based on an intention on the part of the lender. it was submitted that the controversy is a somewhat sterile one with the differences in formulation being more a matter of terminology than of substance. 110 condition al payments and insolvency the quistclose trust enforcement rights controversy has dogged the quistclose trust in relation to the right of the settlor, recognised in the locus classicus itself, to see that the property is applied for the primary stated purpose.89 it has been suggested that the right is not the right of a beneficiary under the resulting trust, for if the primary purpose is fulfilled there is no resulting trust and the payer is a mere creditor. it is axiomatic that, as a general proposition, a grantor or settlor who retains no beneficial interest cannot enforce the trust which he has created, but the beneficiaries can.90 this principle forms the basis of the rule against non-charitable purpose trusts and also is at the heart of the principle enunciated in saunders v. vautier.91 under this doctrine beneficiaries of full age and consent, who are all ascertained and between them entitled to the entire beneficial interest in the trust property, may have the property transferred to themselves absolutely, and bring the trust to an end. peter millett q.c., as he then was, has argued vehemently that quistclose does not necessitate the recognition of a new genus of enforceable purpose trust which a settlor may enforce.92 in his opinion the question of enforceability involves an examination of the payer's intention, which is to be gleaned from the conduct of the parties, the language used and the circumstances of the case. mr. millett has suggested various guidelines by which the payer's intention may be ascertained.93 these guidelines were expressly adopted and applied by hardie boys j. speaking for the new zealand court of appeal in general communications ltd. v. dfc new zealand ltd:94 "1. if a's intention was to benefit c, or his object would be frustrated if he were to retain a power of revocation, the transaction will create an irrevocable trust in favour of c, enforceable by c, but not by a. the beneficial interest in the trust property will be in c. 2. if a's intention was to benefit b (though without vesting a beneficial interest in him), or to benefit himself by furthering some private or commercial interest of his own, and not (except incidentally) to benefit c, then the transaction will 89. see heydon, gummow and austin, at 357; millett, supra.n.8 at 287. 90. this principle forms the' basis of the rule against non-charitable purpose trusts and also is at the heart of the doctrine enunciated in saunders v. vautier infra. 91 and text. 91. (1841) cr. & ph. 240. 92. supra. n.8 particularly at p. 290. mr. millett is now a judge. 93. ibid. at 290. these guidelines were adopted and applied by hardie boys j. speaking for the new zealand court of appeal in general communications ltd v. dfc new zealand ltd. [1990] 3 n.z.l.r. 406. for critical comment see rickett, supra. n.1 at 630 et seq. other new zealand cases include dines construction ltd. v. perry dines corp ltd. (/989) 4 n.z. c.l c. 65, and re securitibank ltd. [1978] i n.z.l.r. 97 and more recently lankshear v. a.n.z. [1993] i n.z.l.r. 481. relevant australian authority includes re associated securities ltd. [1981] i n.s.w.l.r. 742; rose v. rose (1986) 7 n.s.w.l.r. 679; re groom (1977) 16 alr 278; re miles (1989) 85 alr 216. 94. [1990] 3 n.z.l.r. 406 at 432-433. see also dines collstruction ltd. v. perry dines corp. ltd. ibid. at p. 298. the new zealand cases are discussed by rickett. supra. n.1 at 630-646, and see also j.k. maxton, "quistclose developments in new zealand" (1990) 9 int. banking law 216. iii the denning law journal create a trust in favour of a alone, and b will hold the trust property in trust to comply with a's directions. the trust will be enforceable by a but not by c. the beneficial interest will remain in a. 3. where a's object was to save b from bankruptcy by enabling him to pay his creditors, the prima facie inference is that set out in paragraph 2 above. wherever that is the correct inference; (i) where a has an interest of his own, separate and distinct from any interest of b, in seeing that the money is applied for the stated purpose, b will be under a positive obligation, enforceable by a, to apply it for that purpose. where a has no such interest, b will be regarded as having a power, but no duty, to apply it for the stated purpose, and a's remedy will be confined to preventing the misapplication of the money. (ii) prima facie, a's directions will be regarded as revocable by him; but he may contract with b not to revoke them without b's consent. (iii) communication to c of the arrangements prior to a's revocation will effect an assignment of a's equitable interest to c, and convert a's revocable mandate into an irrevocable trust for c.': the new zealand court of appeal entered one caveat. millett's formulation suggested that it was the lender's intention that was relevant, whereas in quistclose the emphasis was on mutual intention.95 a reconciliation was suggested on the basis that intention had to be ascertained objectively.96 what one party was objectively seen to have intended must, ex hypothesi, have been appreciated by the other and accepted by him when he participated in the arrangement. general communications ltd. involved in acute form, the issue of the resolution of the following conundrum. a lender, a, lends money to b, with the latter undertaking that the money shall be applied for the purpose of paying off his creditor, c. is the creditor entitled to recover what he was given to understand was intended for him, but was not paid, having instead been reclaimed by the lender? the court said "yes" but only because of the peculiar circumstances of the case rather than by reason of the adoption of any general principle. while the guidelines propounded by mr. millett were clearly accepted, their manner of application is somewhat ambiguous. stress was laid on the fact that the arrangements had been communicated to the creditor, c, making it clear that the latter need not rely on b alone for payment. this would indicate a category 3(iii) case.97 on the other hand, the court also said that as the purpose of the arrangement would be defeated by the lender, a being able to revoke 95. lord wilberforce said that the mutual intention of the respondents and of rolls razor ltd., and the essence of the bargain, was that the sum advanced should not become part of the assets of rolls razor ltd. but should be used exclusively for payment of a particular class of its creditors, namely those entitled to the dividend: see supra. n.3 at 580. 96. supra. n.93 at 433. 97. ibid. at 435. 112 conditional payments and insolvency-the quistclose trust it at will, it had put the funds beyond its power of recall and had conferred a beneficial interest on each supplier as each contract of supply was fulfilled.98 this exposition would seem to suggest a category 1 classification. mr. millett's analysis views the quistclose trust as an example of what is sometimes called an "illusory trust. "99 where a valid trust has been brought into being it cannot be revoked by the settlor unless the settlement itself contains a power of revocation. where a debtor conveys property for the benefit of his creditors an exception to the principle of non-revocability is said to arise, but the true view seems to be that the apparent beneficiaries never acquire any interest in the property at all. all we have is a trust to comply with the settlor's directions. 100 according to one judge: "a man who, without any communication with his creditors, puts property into the hands of his trustees for the purpose of paying his debts, proposes only a benefit for himself by the payment of his debts: his object is not to benefit his creditors. "101 according to james l.j. in john v. james; "such a deed as this is to be construed as a mandate, the same sort of mandate that a man gives when he gives his servant money, with directions to pay it in a particular way: it does not create any legal or equitable right in favour of a particular creditor. the right to the direction of the money is the right of the person who has put the money in the hands of his agent or steward or whoever it may be." 102 english unorthodoxy the issue of enforceability of a quistclose trust was considered in carreras rothmans ltd. v. freeman mathews treasure ltd. peter gibson j. pointed out that in none of the many reported cases in the quistclose line of cases had any consideration been given to the question, whether the person intended to benefit from the carrying out of the specific purpose which created the trust, had enforceable rights. 103 in this case he rejected the proposition that the third party creditors, for the payment of whose debts the plaintiff had paid the moneys into the special account, had no enforceable 98. ibid. the court said that there was not the intention to confer a direct and immediate benefit that marked new prance & garrard's trustee v. hunting [1897] 2 q.b. 19. this is a case where a trust was established to make good to their beneficiaries breaches of other trusts by the settlor, who intended to give them an absolute interest. lord esher m.r. said at p.26 that it was "obvious that it could not be his intention to reserve to himself any right or possibility of undoing what he was doing, and that he intended that it should be irrevocable". 99. supra. n.8 at 288-289. 100. see generally on illusory trusts pettit, equity and the law aftrusts (7th. ed. 1993) at pp. 214-215. 101. pepys m.r. in bill v. cureton (1834) 2 my. & k. 503 at 511. 102. (1878) 8 ch. d. 744 at 749-750. 103. supra. n.28. 113 the denning law journal rights. he also said that the doctrine of illusory trusts had no application to the facts of the present case. 104 copious reference was made in the case to the unreported decision of sir robert megarry v.c. in re northern developments (holdings) ltd. los this is a case where one company, northern, was the parent company of a number of companies including one, kelly, that was in financial difficulties. a consortium of banks agreed to put up a large sum of money in an attempt to rescue kelly. this money was used to keep kelly alive for a time, but kelly was then put into receivership at a time when more than half the fund was unexpended. the vice chancellor held that the fund was subject to a quistclose type trust. this trust was enforceable by the bank as lenders, by kelly for whose immediate benefit the fund was established, and by kelly's creditors. the interests of creditors were described in the following fashion: "the fund was established not with the object of vesting the beneficial interest in them, but in order to confer a benefit on kelly (and so, consequentially, on the rest of the group and the bankers) by ensuring that kelly's creditors would be paid in an orderly manner. there is perhaps some parallel in the position of a beneficiary entitled to a share of residue under a will. what he has is not a beneficial interest in any asset forming part of residue, but a right to compel the executor to administer the assets of the deceased properly. it seems to me that it is that sort of right which the creditors of kelly had." on this interpretation the beneficial interest is in suspense until the payment is made. mr. millett argues that the right result was reached in re northern developments (holdings) ltd. but for the wrong reasons. 106 he relies on the fact that creditors of kelly were aware of the existence ofthe fund and derived comfort from its existence. it seems that creditors of kelly who applied for payment of their debts or who expressed concern were told of the existence, size and purpose of the fund i.e. to stave off a liquidinion of kelly. in mr. millett's view communication of the arrangements to the creditor, followed by forebearance by the creditor, raises an equity against the payer which prevents him from revoking the arrangements, or otherwise intercepting payment to the creditor. be that as it may, it is certainly not the way in which megarry v.c. approached the case. it is submitted that the following statement by one commentator more truly reflects the principles expounded in the english cases on the quistclose trust: 104. according to peter gibson j. the doctrine of illusory trusts applied where a debtor for his own convenience settled property in favour of his creditors, the court treating the trust as a revocable one. in the present case although the defendant agreed to the discharge of an asset, its book debts, by payment by its debtor, the plaintiff, in such a way that the moneys paid would not be held on trust to pay its creditors, the defendant did not enter into the arrangement for its convenience but for good commercial reasons on the insistence of the plaintiff and the trust was not for its creditors generally but for a particular class of creditor. 105. supra. n.16. 106. supra. n.8. 114 conditional payments and insolvency-the quistclose trust , 'a variety of equitable rights and obligations arise in respect of the primary purpose trust: (i) the transferor can enforce the trust, and it is suggested, restrain any breach of the trust on the part of the transferee; (ii) the "direct" or "factual" beneficiaries can also enforce the trust, so as to acquire by the transfer ofthe money or property to them an absolute title, and, it is suggested, can also restrain any breach of the trust; (iii) certain other 'interested parties' might be treated as having standing also to enforce or restrain breaches, e.g. subsidiary companies where the transferee is the parent company and the transfer was made in the context of a corporate salvage plan. while the primary purpose trust endures, the beneficial interest in the property remains in suspense." 107. conclusion conditional payments made to a company that has subsequently become insolvent should escape the clutches of the liquidator. the devices through which this result can be achieved are discussed in this article. the quistclose trust is one such mechanism and the re kayford type trust is another. quistclose involves a primary purpose/secondary purpose trust whereas the re kayford line of authorities entail more in the nature of an orthodox persons trust with specific and recognisable beneficiaries, and no added complication of a secondary purpose. here both have been run together under the rubric of conditional payments since they serve the same commercial purpose. both strain at the leash of conventional trust principles. with the quistclose trust the difficulty lies with the application of the beneficiary concept which is at the heart of trust law. it is submitted however that the problems may be overcome if the relevant principles are interpreted flexibly, and bearing in mind the overriding commercial objective of conditional payment arrangements. the quistclose trust is the functional equivalent of the purchase money security interest or acquisition mortgage and should be accorded recognition and priority as such. 108. with re kayford and associated cases the difficulties arise at an altogether more factual level. sometimes the conditional element in the payment may seem like an exercise in ex post facto rationalisation and the decision approaches an application of discretionary justice. if that is the case then we are more in the realm of the so-called remedial constructive trust but that is another story. 107.see rickett supra. n.1 at 619. the article by rickett also contains an interesting account of the australian cases re groom; re associated securities ltd; rose v. rose; and re miles all supra. n.93. 108. for the use of the concept of the purchase money security interest in a different context see bennett and davis, (1994) 110 l.q.r. 448. 115 family justice and family values according to lord denning *m. d. a. freeman as we have searched for family justice in recent years, we have constantly been reminded of the need to uphold "family values."t this exhortation post-dates lord denning's long judicial tenure, but will resonate with any student of lord denning for his was a voyage to a land where family justice was imbricated with family values. lord denning, we can be sure, would have joined in the debates on child support and child murderers, on divorce reform and cohabitation, on transsexualism and homosexuality, with vigour and vision. on some of these issues his views would have been predictable: on others less so. few english judges have had a clearer world-view and perhaps none has had one in which the family was so central. this is not to say he held a consistent theory as such either about the family or the role of family law. and, indeed, there are contradictions: for example, he professes a belief in women's equality (though on one famous public occasion he castigated its implications2), yet is responsible for some notable patriarchal reasoning3 and some overtly sexist rulings.4 lord denning is a moral fundamentalist. moral fundamentalism is part of the ethos of conservatism.5 it is a world-view firmly located within the traditional middle-classes. stuart hall has suggested that commitment to such values is sustained by a "sense of englishness.',6 "englishness" is built around a cluster of core beliefs, characterised as the "protestant ethic."? these beliefs, about the value of hard work, delayed gratification, honesty, social discipline, respectability, etc, are inextricably • professor of english law, university college, london. i michael freeman, "family values and family justice" (1997) 50 current legal problems 315. 2 the equality of women (university of liverpool press, liverpool, 1960). 3 wachtel v. wachtel [1973] fam. 72 at 94, quoted below, is the most overt. 4 see, for example, peake v. automative products ltd. [1978] q.b. 233. 5 see r. wallis, "moral indignation and the media: an analysis of the national viewers' and listeners' association" sociology, vol.lo, pp.271-295. 6 policing the crisis: mugging, the state and law and order (macmillan, 1978). 7 see max weber, the protestant ethic and the spirit of capitalism (translated by talcott parsons) (routledge, 1930). 93 http://www.ingentaconnect.com/content/external-references?article=0070-1998(1997)50l.315[aid=7390983] http://www.ingentaconnect.com/content/external-references?article=0070-1998(1997)50l.315[aid=7390983] denning law journal bound up with the family, for it is there that these constraints are taught and generated. lord denning oozes traditional englishness, as a reading of his family story amply testifies.s his opinions on matters relating to personal life, to women, to the family (as also views on the black population and jews9) are very much those of the traditional middle classes. his views about the equality of women have mellowed, though they have not matured, since he gave the eleanor rathbone memorial lecture in 1960.10 his pronouncements on sexual morality, prudish, almost prurient, betray "a strong streak of nineteenth-century morality,,,i! but this is a morality still firmly embedded within the moral centre of society. examples are his views on artificial reproductive methods,12 on pornography (endorsing raymond blackburn's viewsl3) and his dissent in bravery v. bravery.14 in this case he expressed the view that a husband who had a vasectomy without just cause or excuse was striking "at the very root of the marriage relationship.,,15 he also articulates a view of family law, seeing it as like the criminal law in that in both regard has to be had to the "public interest.,,16 lord denning has clearly seen himself as a champion of the cause of women. he believes women have now attained complete equality.17 but he accepts totally sex-role stereotyping. thus, writing in 1979, he saw men and women as occupying separate spheres. is nor is it likely that he would accept the part played by judicial pronouncements in constructing and defining the order to which he refers. the legal form is one of the main forms of social practice through which actual relationships embodying sexual stratification have been expressed. the legal system is a cultural underpinning of patriarchy. 19 a number of lord denning's judgments can be read in this light. his justification of the resurrection of the "one-third rule" in wachtel v. wachtel is only the best-known example 8 lord denning, the family story (butterworths, 1981). his choice of music and literature (at pp. 249-250) is quintessentially english and very middle-brow. 9 see the independent, 17th august, 1990. 10 supra n.2. 11 robert stevens, law and politics: the house of lords as a judicial body (weidenfeld and nicolson, 1979), at p.500. 12 h.l. deb. vol. 207, col. 943 (26th february, 1958). 13 r. v. metropolitan police commissioner ex parte blackburn (no.3) [1973] 1 q.b. 241 at 248. 14 [1954] 3 all e.r. 59 (and see h.l. deb. vol. 206 col. 807 (4th december, 1957)). is ibid at p.68. 16 idem. 17 the due process of law (butterworths, 1980), at p.20l. 18 ibid 194 at p.20l. 19 see m.d.a. freeman, "violence against women: does the legal system provide solutions or itself constitute the problem?" (1980) 7 br. j. of law and soc. 215. 94 family justice and family values of this.2o another is found in the case of button v. button. there, he noted: "a wife does not get a share in the house simply because she cleans the walls or works in the garden or helps her husband with the painting or decorating. those are the sorts of things which a wife does for the benefit of the family without altering the title to or interests in the property.,,21 it is instructive to compare his reasoning in button and that in cooke v. head, four years later.22 the case concerned cohabitants: ms. cooke did "quite an unusual amount of work for a woman,,,23 in helping mr. head build a bungalow which was to be their home. in lord denning's words: "she used a sledgehammer to demolish some old buildings. she filled the wheelbarrow with rubble and hard core and wheeled it up the bank. she worked the cement mixer which was out of order and difficult to work. she did painting and so forth. miss cooke did much more than most women would do.,,24 she had, it seems, the skills of a craftsman.25 what women normally do, or are expected to do, has, in lord denning's eyes, no economic value. but "real" work must be compensated. mrs. button got nothing: ms. cooke's share in the proceeds of sale of the bungalow was increased from one-twelfth to one-third. to lord denning's way ofthinking, women ought only to acquire rights in the matrimonial home when they have done something to merit them. button v. button illustrates this: so, in a rather different way, does gurasz v. gurasz?6 the husband and wife jointly owned the matrimonial home, but the wife left with the four children because of her husband's repulsive conduct. the wife sought an order that her husband should leave the matrimonial home. it was granted. the court of appeal, however, rightly held that the order could not be supported on the ground that it was made. as lord denning said, the 1967 act only protected a wife who had "no proprietary, contractual or statutory right to remain in the matrimonial 20 supra n.3. 21 [1968] 1 all e.r. 1064 at 1067. 22 [1972] 2 all e.r. 38. 23 ibid at pao. 24 ibid. 25 emphasis added. 26 [1969] 3 all e.r. 822. 95 denning law journal home," what he called, somewhat pruriently, a "bare" wife.27 the judge's order was, however, supported on the ground that an innocent wife has a personal right to remain in the matrimonial home. lord denning reasoned: "some features of family life are elemental in our society. one is that it is the husband's duty to provide his wife with a roof over her head: .... so long as the wife behaves herself, she is entitled to remain in the matrimonial home ..... so long as she has done nothing to forfeit that right, the court will enforce it.,,28 lord denning's conclusion cannot be faulted. but his language is insensitive. to premise protection upon behaviour is to designate a wife as having a status similar to a child: we talk of children behaving but not, i think, wives. these property cases demonstrate the conditional nature of the rights lord denning is prepared to bestow on women. his is the sort of reform which improves the position of some women while at the same time perpetuating the view that domestic labour has no economic value, and rights generally are dependent on moral proprieties. it is as well to remind ourselves of this for lord denning has often been seen, and has publicised himself, as in the vanguard of reform. there has been legislative reform to recognise the value of domestic labour,29 and to preserve maintenance and accommodation rights after matrimonial misconduct, 30 but these, it must be stressed, were reforms to reverse trends effectuated by lord denning. there is hardly an area of modern family law upon which lord denning has not pronounced at some time or other. he sat as a judge in the probate, divorce and admiralty division for eighteen months in 1944 and 1945. very few judgments of his of this period are reported. he seems to have been reversed only oncey his reported judgments of the period do not throw much light on his values or his methodology. but they show him to be homely and down-to-earth (sex is described as a "natural and healthy way of living,,32); prepared to dispose of seemingly binding cases where they appear to him to lack any rationale;33 with an eye for law 27 ibid at p.824. 28 ibid at p.823. 29 matrimonial proceedings and property act, 1970, s.5(1)(f). 30 domestic proceedings and magistrates' courts act 1978. 31 churchman v. churchman [1945] p. 44. 32 fletcher v. fletcher [1945] 1 all e.r. 582. 33 an example is norton v. norton [1945] p. 56. 96 family justice and family values reform.34 he also demonstrated the ability to research difficult points of law: as a result of one such exercise in a case35 which demanded that the principles of collusion be stated, he wrote an article on the subject of presumptions and burdens which was published in the law quarterly review.36 there are glimpses also of his pragmatic approach to problems. "thank goodness i only did divorce for 18 months," he comments on his brief sojourn in the p.d.a.37 but, ironically, within ten months he was chairing a committee to inquire into divorce procedure. this was responsible for reducing the period between decree nisi and absolute, for the establishment of commissioners to try divorces and for a strengthening of welfare services in the divorce process.38 he was to emphasise the importance of reconciliation many times in later cases.39 between 1948 and 1957 he sat on a large number of appeals in family matters. this is the time when the deserted wife's equity emerged,40 the notion of "family assets" was bom,4\ when the courts began to liberalise the bars to divorce.42 lord denning is the progenitor of the first two of these concepts, and played a major role in the third. one of his earliest reported forays into family law in the court of appeal is hopes v. hopes.43 he recognised the social realities of the housing shortage. lord denning's reputation as the "great dissenter" is not borne out by the facts in his early years in the court of appeal. it was six years before he dissented in a court of appeal case concerned with family matters. by then he had bendall v. mcwhirter44 and rimmer v. rimmer,45 two breakthrough family property cases, behind him, and in both, as in all family law cases until bravery v. bravery,46 the court was unanimous. indeed, it was 1956 before he dissented again, and his conclusion was an . tl 'bl ~emmen y sensl e one. 34 in norton v. norton ibid he disapproves of the way the respondent and correspondent deny adultery solely to dispute damages and comments "the practice should be changed." 35 emanuel v. emanuel [1946] p. 115. 36 "presumptions and burdens" (1945) 61 l.q.r. 379. 37 supra n.17 at p.189. 38 the product of three reports: cmd. 6881; cmd. 6945; and cmd. 7024. 39 see mctaggart v. mctaggart [1948] p. 94; simpson v. simpson [1954] 1 w.l.r. 994; richardson v. richardson [1949] p.16. 40 see bendall v. mcwhirter [1952] 2 q.b. 466. 4\ see rimmer v. rimmer [1953] 1 q.b. 63. 42 see, e.g., douglas v. douglas [1950] p. 85. 43 [1949] p. 227. 44 supra n.40. 45 supra n.41. 46 supra n.14. 47 jefferson v. jefferson [1956] p. 136 (the logic of a statutory provision appiicable to large maintenance payments applied to a small one). 97 denning law journal in his five years in the house of lords, he had no opportunity to pronounce in a judicial capacity upon any family law matters. he became an active member of the legislative branch of the house of lords.48 often his speeches were an affirmation of traditional values including matters relating to family life and sexual morality.49 by the time he returned to the court of appeal as master of the rolls he had established a reputation for dissent and controversy (though lord keith in fact dissented more often).50 he became less cautious, less concerned with precedent and logical development. though a conservative through and through, he committed himself to change, to right injustice. the paradox is more apparent than real for reform required the re-establishment of traditional values. a dominant theme running through lord denning's crusades in this period has been to protect the small man against large organisations, bureaucracies and government bodies.51 in family law the small man has often been the small woman. williams and glyn's bank v. boland is a good illustration of the way lord denning's concern to protect the individual's interests against the power of large organisations has reflected itself in his family law thinking. 52 the husband had raised money for his business on the security of the matrimonial home. the wife had made substantial contributions to its purchase and was, it was clear, entitled to a share in it. the business failed, and the bank sought to enforce their charges. the case turned on whether the wife was in "actual occupation" of the house. to templeman j. only the mortgagor (the husband) was: any other view would "lead to chaos.,,53 the court of appeal, lord denning very much to the fore, disagreed. lord denning was concerned that: "we should not give monied might priority over social justice." he reasoned: "anyone who lends money on the security of a matrimonial home ought to realise that the wife may have a share in it it seems to me utterly wrong that a lender should tum a blind eye to the wife's interest or the possibility of it and afterwards seek to tum her and the family out on the plea that he did not know that she was in actual occupation. if a bank is to do its duty, in the 48 l. blom-cooper and g. drewry, final appeal (clarendon press,1972), at p.205 show him to be the most active participant in house of lords' debates of all eligible judges. 49 see especially his speech reported at h.l. deb. vol. 207 col. 943 (26th february, 1958). 50 see supra n.48 at p.179: only 16% aflord denning's judgments were dissents and 22% of lord keith's were. 51 but not consistently so: see r. v. preston s.b.a. t. ex parte moore [1975] 1 w.l.r. 624. 52 [1979] 2 w.l.r. 550. 53 see bird v. syme-thompson [1979] 1 w.l.r. 440 at 444. 98 family justice and family values society in which we live, it should recognise the integrity of the matrimonial home. ,,54 boland was the 1970s' counterpart to the deserted wife's equity of the 1950s and early 1960s, which the house of lords extirpated in national provincial bank v. ainsworth.55 but protection of the wife in boland required statutory construction, not judicial intervention. it is not surprising that the house of lords upheld boland.56 boland is a good illustration of lord denning's concerns towards the end of his time in the court of appeal. but it is not an especially good illustration of his reasoning processes. it is to other family law decisions, particularly to those of the 1960s and early 1970s, that one must go to seek these. after the early 1970s, lord denning made only occasional forays into family matters: boland is one example, davis v. johnson was another.57 here in his view it was imperative that "social justice require[d] that personal rights should ... be given priority over rights of property.,,58 he referred to tarr v. tarr59 and national provincial bank v. ainsworth60 and commented: "i know that in those two cases the house of lords reversed the decisions of this court and gave priority to property rights. but parliament in each case afterwards passed laws so as to restore the decisions of this court. i prefer to go by the principles underlying the legislative enactments rather than by the out-dated notions of the past.,,61 it is noteworthy that on this occasion one member of the house of lords, lord scarman, picked up lord denning's point, noting that "the restriction or suspension for a time of property rights is a familiar aspect of much of our social1egislation.,,62 lord denning made his major impact on family law in a series of cases about the ownership of the matrimonial home in the years immediately after ainsworth. it would be reading too much into these decisions to say that they were a direct reaction to the house of lords' demolition of the 54 supra n.52 at p.560. 55 [1965] a.c. 1175. 56 [1981] a.c. 487. 57 [1978] 1 all e.r. 841. 58 ibid at p.849. 59 [19731 a.c. 254. 60 supra n.55. 6\ supra n.57 at p.847. 62 [1979] a.c. 264. 99 denning law journal deserted wife's equity, but this might be a plausible interpretation. the passage of legislation giving judges discretion to transfer property and vary property interests may have taken the sting out of lord denning's campaign and encouraged him to innovate in other fie1ds.63 certainly, after establishing precedents on financial provision and property adjustment on divorce, in the light of acts which had, in his language, "revolutionised the law,,,64 he sought other pastures. boland excepted, his main interest in the family, as the 1970s developed, really lay in assimilating wherever possible the consequences of cohabitation to those of marriage. but he regretted that, as he put it, the concept of marriage was being "eroded." his statement in bernard v. josephs did not disguise his own sadness: "many couples lived together as if they were husband and wife when they were not married.,,65 in the due process of the law he wrote that "the only basis for a sound family life is a christian marriage .... ,,66 the sentiments are congruent with his moral fundamentalism, to which reference has already been made. with this in mind, his response to situations where cohabitation has broken down may cause surprise. it might be expected that he would have adopted the view that the law should only afford protection and relief to those lawfully married. but lord denning's response indeed, the judicial response has been to treat cohabiting couples like married couples wherever possible.67 the judiciary has not done this with every relationship outside marriage: only with those that conform stereotypically to norms associated with marriage. thus, the retaining of separate names or separate bank accounts may induce the courts to treat a relationship as contractual and not to impose upon it consequences that flow from status.68 the female cohabitant's behaviour is scrutinised: has she done the sort of things that a married woman might be expected to do or has she exceeded expectations in some way (the example of building activities already referred to).69 her sexual fidelity is also examined rather as a married woman's was under the old 63 matrimonial proceedings and property act 1970, s.4. 64 trippas v. trippas [1973] 2 all e.r. 1 at 4. 65 [1982] 3 all e.r. 162 at 165. 66 supra n.l7 at p.20!. 67 see, generally, m.d.a. freeman and c.m. lyon, cohabitation without marriage (gower press, 1983) chs. 4 and 6. 68 see, e.g., helby v. rafferty [1979] 1 w.l.r. 13, not a decision of lord denning's. 69 as in cooke v. head and eves v. eves, see supra n.22 & infra n.76. but see also smith v. baker [1970] 2 all e.r. 826 ("she even helped dig the foundation herself" per lord denning at p.827). 100 family justice and family values fault-based law of divorce.7o what superficially looks progressive, on closer examination is more suspect. in cooke v. head,11 lord denning treated an unmarried couple in the same way as he treated the married in such cases as hazell v. hazell,72 n ucracknell v. cracknell and hargrave v. newton. "it is now held that, whenever two parties by their joint efforts acquire property to be used for their joint benefit, the courts may impose or impute a constructive or resulting trust. the legal owner is bound to hold the property on trust for them both. this trust does not need any writing. it can be enforced by an order for sale .... it applies to husband and wife, to engaged couples, and to man and mistress, and maybe to other relationships too.,,75 in eves v. eves,76 cooke v. head was followed. lord denning quoted his remarks in cooke v. head. he referred particularly to the male cohabitant's conduct: how he gained her confidence and how she trusted him. he had gained her compliance by a statement that he intended to put the property into their joint names as soon as it was legally possible. lord denning thought that "he should be judged by what he told her by what he had led her to believe and not by his own intent which he kept to himself.''?? he also remarked: "it is clear that her contribution was such that if she had been a wife she would have had a good claim to have a share in [the house] on a divorce.,,78 he cited wachtel v. wachtel in support.79 in both cooke v. head and eves v. eves, the female cohabitant was held to have acquired an interest by way of a trust. the two cases show the way the courts, with lord denning very much in the vanguard, are developing principles for 70 see ruth deech, "the case against the legal recognition of cohabitation" (1980) 29 i.c.l.q. 480. 71 supra n.22. 72 [1972] 1 w.l.r. 301. 73 [1971] p. 356. 74 [1971] 2 all e.r. 1611. 75 supra n.22 at pal. 76 [1975] 1 w.l.r. 1338. 77 ibid at p.1342. 78 idem. 79 supra n.3. 101 denning law journal drawing inferences from the relationships of cohabitants in much the same way as they have done in the case of husband and wife. having implied a trust, within days, lord denning went on to imply a contract. in tanner v. tanner, the male partner had purchased a house for the defendant and their twin baby daughters.8o she had left her rentcontrolled flat. when the relationship broke down the plaintiff claimed possession of the house on the basis that the defendant had a bare licence only, which he had revoked. lord denning's riposte was: "i cannot believe that this is the law. the man had a moral duty to provide for the babies of whom he was the father. i would go further. i think he had a legal duty towards them. not only towards the babies. but also towards their mother. she was looking after them and bringing them up. in order to fulfil this duty towards the babies, he was under a duty to provide for the mother too.,,81 a contractual licence was inferred, consideration being found in the defendant's giving up of her rent-controlled flat. lord denning went even further: the court, he argued, could not only imply a contract but if need be, impose the equivalent of a contract.82 in cooke v. head, the court of appeal refused to follow a previous court of appeal decision. they did not say they were doing this but simply decided the instant case as if the earlier one were not there. lord denning admitted this in dyson holdings v. fox,83 another case on cohabitation, in which he refused to follow gammans v. ekins.84 the previous decision, he said, was "not in accord with modern thinking.,,8s lord denning's judgment in dyson holdings v. fox is a good illustration of his thinking. the question which arose was whether a seventy-four year old woman who had lived with a man for twenty-one years, the cohabitation having terminated on his death some fourteen years earlier, could be turned out of a house she had occupied for thirty-five years, by a property company. there was no doubt where lord denning's sympathy lay. she could stay if she were a member of her former cohabitant's family. existing case law would have allowed the court so to hold had they had children.86 but they had not. lord denning thought this "a 80 [1975] 3 all e.r. 776 81 ibid at p.779. 82 ibid at p.780. 83 [1976] q.b. 503. 84 [1950] 2 k.b. 328. 85 supra n.83 at p.509. 86 hawes v. evenden [1953] 1 w.l.r. 1169. 102 family justice and family valves ridiculous distinction. so ridiculous, indeed, that it should be rejected by this court.,,87 so, what was to be done with the previous case law? lord denning had two answers. first, to assert in his grand style that the court of appeal was not bound by previous decisions which, as a result of a change in social conditions, were not in accord with modem thinking. and, secondly, to demonstrate, rather deviously, that gammans v. ekins could be disposed of by one of the exceptions laid down in young v. bristol aeroplane co.88 lord denning made a major contribution to divorce jurisprudence. his own attitude towards divorce was always ambivalent. he favoured divorce reform both in 196389and in 1969.90 in his judicial capacity he enthusiastically embraced the irretrievable breakdown concept.91 on the other hand, he was clearly fearful of what divorce reform might mean for the family. speaking to the nottingham branch of the marriage guidance council in 1971 he warned: "it is a time for all good folk to take a stand, else the permissive society will soon become the decadent society.,,92 his concerns were apparent in his decisions long before this.93 thus, in kaslefsky v. kaslefsky in 1950 he stressed that gross neglect and chronic discord were not yet grounds for divorce: "if the door of cruelty were opened too wide, we should soon find ourselves granting divorce for incompatibility of temperament. that is an easy path to tread ... the temptation must be resisted lest we slip into a state of affairs where the institution of marriage itself is imperilled. ,,94 lord denning never liked divorce and always wanted to keep it firmly within bounds. but he took a realistic approach to it. and he was sometimes ahead of his time. in 1950, he stressed that the divorce court was concerned not to punish anyone, but to give relief from a marriage that had broken down.95 he found the concept of mutual desertion acceptable for much the same reason. thus, in beigan v. beigan, he stated: 87 supra n.83 at p.509. 88 [1944] k.b. 718. 89 see h.l. deb. vol. 250 cols. 405-407. 90 see b.h. lee, divorce reform in england (peter owen, 1974) at pp.179-80. but cf his foreword to w. latey, the tide of divorce (longman, 1970) at p. vii. 91 see, e.g., fuller (orse penfold) v. fuller [1973] 2 all e.r. 650. 92 the times, 1st october, 1971. 93 moor v. moor [1954] 2 all e.r. 458; pike v. pike [1953] p. 38. 94 [1950] 2 all e.r. 398 at 403. 95 davis v. davis [1950] p. 125. 103 denning law journal "in many of these cases both are equally to blame for the breakdown of the marriage and the only just solution is a decree of divorce on the ground of desertion by each without drawing any distinction between them.,,96 his pronouncements on reconciliation were also ahead of his time. thus, in richardson v. richardson in 1949, his view on what conduct could revive condoned adultery was influenced by considering what would foster and what frustrate attempts at reconciliation.97 and, in simpson v. simpson in 1954 an application for leave to petition for divorce within three years of marriage he stressed the importance of looking at the respondent's answer as well as the petitioner's allegations.98 without so doing, it was difficult to assess the possibility of a reconciliation between the parties. there is little doubt, though, that lord denning's major contribution to divorce law in these pre-reform days was the establishment of a civil law test in relation to the proof of matrimonial offences.99 to each of the old grounds of divorce, the now moribund "facts," lord denning contributed significantly. he heard the first appeal on adultery in its new guise under the divorce reform act 1969 and held that the two limbs of section 1(2)(a) were independent, so that the linking "and" was construed disjunctively. 100 a differently constituted court of appeal was not happy with this conclusion but unprepared to believe that a court containing lord denning and lord justice scarman could have nodded. 101 lord denning heard only one reported appeal on "unreasonable behaviour," the case of bradley v. bradley.102 this showed lord denning at his liberal and pragmatic best. a woman continued to live with her husband because she had a large number of children and nowhere else to go. there was no doubt that his behaviour (which included violence) was such that she could not reasonably be expected to live with him. she was in a "catch-22" situation: the local authority would rehouse her if she secured a divorce, but to obtain a divorce did she first have to separate from her husband? the trial judge took the view that there was no possibility of a divorce. lord denning, however, reasoned: 96 [1956] 2 all e.r. 630 at 632. 97 [1949] p. 16. 98 [1954] 1 w.l.r. 994 99 gower v. gower [1950] w.n. 156. see also blyth v. blyth [1966] a.c. 643. 100 cleary v. cleary [1974] 1 all e.r. 498. 101 carr v. carr [1974] 3 all e.r. 1193. 102 [1973] 3 all e.r. 750. 104 family justice and family values " ... the wife is in fact living with the husband. how can she say that she 'cannot reasonably be expected to live with her husband' when she is in fact living with him? i think she can say so. the section does not go on to provide that she must have left him and be 'living apart' from him. it simply says that she 'cannot reasonably be expected to live with him.' i think she satisfies that requirement, even though she is in the same house with him and is in fact living with him if it be the case that she has no alternative open to her nowhere else to go. it is not reasonable to expect her to live there, but albeit unreasonable, she has no option but to be there.',[03 on desertion too lord denning made a major contribution. until lord denning held otherwise, it was the law that a husband had an overriding right to determine the location of the matrimonial home and a wife who refused to join him there was said to be in desertion. 104but, in dunn v. dunn, 105he held that it was the party who had "produced the separation by reason of his or her unreasonable behaviour,,106 that was in desertion. his other principal contribution to the law of desertion is his judgment in hopes v. hopes.i07 he drew a distinction between desertion on the one hand and gross neglect and chronic discord on the other. when a couple were living under the same roof, separation for the purposes of desertion occurred "when they cease to be one household and become two households ... ,,108the "one household or two" test has been consistently invoked ever since.109 lord denning's impact on the separation provisions ofthe divorce reform act 1969 was not great, though his intelligent and expansive interpretation of what is now section 2(6) of the matrimonial causes act 1973 in fuller (orse penfold) v. fuller should not be overlooked.110 it undoubtedly gave effect to the policy underlying the five years separation provision. so did his judgment in chapman v. chapman: in a five years separation petition "it would be contrary to the policy of the legislature that the court should hold a post-mortem simply to make an award of costs."! ii 103 ibid at p.752. 104 mansey v. mansey [1940] p. 139; king v. king [1942] p. 1. 105 [1948] 2 all e.r. 822. 106 ibid at p.823. 107 supra n.43. 108 ibid at p.236. 109 see mouncer v. mouncer [1972] 1 w.l.r. 321. 110 supra n.91. iii [1972] 3 all e.r. 1089 at 1090. 105 denning law journal lord denning's contribution to the law on financial provision after divorce is considerable. he was one of the first to recognise that a wife might ask for maintenance even if she was "guilty." he developed the notion ofthe "compassionate allowance." i 12 he recognised the need to take account of the wife's earning capacity though he affirmed in the same case the importance of female dependency ("it does not. .. lie in the mouth of a wrongdoing husband to say that his wife ought to go out to work simply in order to relieve him from paying maintenance" i 13). lord denning was one of the earliest judicial advocates of the clean break 1 14 and, once its principle was established, 115 he gave it his support, though some ambivalence can be detected.i'6 he saw the necessity to treat financial provision and property adjustment as all of one piece 117 before legislation in 1970 did just this. but of all his decisions on financial provision it is wachtel v. wachtel for which he will be longest remembered.118 it is true that it was ormrod j. in wachtel who coined the phrase "obvious and gross" misconduce 19 and phillimore l.j. in ackerman v. ackermanl20 who re-introduced the one-third rule (whilst stressing it was not a rule). but lord denning's judgment remains the classical source of these doctrines. wachtel is also significant for the stand that lord denning takes on lump sum payments. the concept dates from 1963121 but judges were reluctant to order such payments. lord denning stressed that: "in every case the court should consider whether to order a lump sum to be paid ... " of course: "no order should be made for a lump sum unless the husband has capital assets out of which to pay it without crippling his earning power .... when the husband has available capital assets sufficient for the purpose, the court should not hesitate to order a lump sum.,,122 112 see sydenham v. sydenham [1949] 2 all e.r. 196; trestain v. trestain [1950] p. 198. see also williams v. williams [1957] 1 w.l.r. 148 (right to maintenance suspended, not forfeited, by desertion). 113 rose v. rose [1950] 2 all e.r. 311 at 313. 114 smith v. smith [1970] 1 w.l.r. 155. 115 see minton v. minton [1979] a.c. 593. 116 see dunford v. dunford [1980] 1 all e.r. 122. see also jessel v. jesse! [1979] 3 all e.r. 645. 117 in button v. button supra n.21 at p.1067. 118 supra n.3. 119 [1973] 1 all e.r. 113 at 119. 120 [1972] fam. 225 at 234. 121 matrimonial causes act 1963 s.5(1). 122 supra n.3 at pp.95-96. 106 family justice and family values he saw it as helping to remove the bitterness so often attendant on periodical payments. wachtel ensured that lump sums became common even if, necessarily, the number of orders is still comparatively small. lord denning only returned to the question once since wachtel. in trippas v. trippas, he rejected the "suggestion that a lump sum is simply h f 'f . . ,,123anot er way 0 quanti ymg mamtenance. lord denning's observations on matrimonial misconduct and his espousal of lump sum payments did much to chart the future, at least the immediate future, of financial provision and "equitable redistribution,,124 of property on divorce. the same cannot be said of his reactivation of the discredited notion of the "one-third" rule. but his justification of the rule will long be remembered: "when a marriage breaks up, there will thenceforward be two households instead of one. the husband will have to go out to work all day and must get some woman to look after the house either a wife if he remarries, or a housekeeper, if he does not. he will also have to provide maintenance for the children. the wife will not usually have so much expense. she may go out to work herself, but she will not usually employ a housekeeper. she will do most of the housework herself, perhaps with some help. or she may remarry, in which case her new husband will provide for her. in any case, when there are two households, the greater expense will, in most cases, fallon the husband rather than the wife. as a start has to be made somewhere, it seems to us that in the past it was quite fair to start with one-third.,,125 lord denning did not then ask about the present. anyone who reads the due process of law will be left in no doubt that lord denning himself thinks his most substantial venture into family law have been in connection with the matrimonial home. 126as early as 1947 he was protecting deserted wives in the occupation of the matrimonial home, and claiming that the discretion vested in the judge by section 17 of the 1882 act was "in no way fettered, though it must be exercised judicially."127 it was he who invented the "compendious phrase,,128 123 [1973] fam. 134 at 140. 124 the term is ormrod l.j.'s: see o'donnell v. o'donnell [1976] fam. 83. 125 supra n.3 at p.94. 126 supra n.17 at part 6. 127 hutchinson v. hutchinson [1947] 63 t.l.r. 645. 128 nixon v. nixon [1969] 3 all e.r. 1133 at 1137. 107 denning law journal "family assets,,129(the house of lords subsequently determined the expression had no legal meaning). 130lord denning's response was to construct a beneficial interest in the matrimonial home by imposing a trust. 131the problem centred on indirect contributions by the wife to the family budget. the orthodox view required the indirect contribution to be directly referable to the acquisition costs, 132but lord denning rejected the need to find such a causal relationship. in his view it was sufficient "if the contributions made by the wife are such as to relieve the husband from expenditure which he would otherwise have had to bear.,,133 lord denning was also instrumental in establishing the principle that a wife may acquire an interest in the matrimonial home by working gratuitously in her husband's business. 134another strategy adopted by lord denning to enable a non-estate owner to acquire interest in the matrimonial home is through effecting improvements to it. 135this led to a statutory formulation (section 37 of the matrimonial proceedings and property act 1970). he did not disguise his pleasure. "note that section 37 is not an alteration of the previous law. it is a declaration of the law a declaration of what the law was before the act. it aff1rms, therefore, the decision of this court in jansen v. jansen and the principles adopted by the equitable school.,,136 lord denning also did much to protect the occupation in the matrimonial home of the deserted wife. her right to stay in the matrimonial home as against her husband had been established before lord denning became a judge, 137but it was one he embraced enthusiastically.138 in a series of cases, beginning with bendall v. mcwhirter in 1952 the courts, with lord denning very much in the 129 first used in cobb v. cobb [1955] 1 w.l.r. 731 (though he claims in the due process of law supra n.17 at p.232 that he did so earlier in rimmer v. rimmer: the concept is there, but not the phrase). 130 pettitt v. pettitt [1970] a.c.777 and gissing v. gissing [1971] a.c. 885. 131 heseltine v. heseltine [1971] 1 w.l.r. 342; hazell v. hazell supra n.72; davis v. vale [1971] 1 w.l.r. 1022; cooke v. head supra n.22. 132 cowcher v. cowcher [1972] 1 w.l.r. 425. l33 hazell v. hazell supra n.72 at p.304. l34 nixon v. nixon supra n.128; muetzel v. muetzel [1970] 1 w.l.r. 188 (a partnership); re cummins [1971] 3 all e.r. 782. 135 appleton vo appleton [1965] 1 all e.r. 44; jansen v. jansen [1965] p. 478; cf button v. button supra n.21. 136 in davis v. vale supra n.131 at p.1025. 137 bramwell v. bramwell [1942] 1 k.b. 370. 138 in hutchinson v. hutchinson supra n.127; lee v. lee [1952] 2 q.b. 489 at 492; and in halden v. halden [1966] 3 all e.r. 412 at 413. 108 family justice and family values vanguard, went even further and created, what was known as, the "deserted wife's equity.,,139 this was one of the boldest creations of the judiciary in this century. it survived until 1965, when, in national p . 'lb k a' hj40"'al 'd . fh . ,,141rovmcla an v. mswort, soci consi erations 0 umamty ceded to justice to third parties and sound principles of real property law. and this was a catalyst to reform, but lord denning was critical of this reform too. in particular, he spoke against registration of a charge as a . . • 142pre-reqmsite to protection. lord denning was also involved in a large number of decisions relating to children. many of them are important, even if not recognised as such when they were decided. most significant is the earliest case to move away from a presumption of reasonableness in withholding consent to adoption and to substitute an objective test in determining whether the parent's refusal is reasonable. lord denning said: "a reasonable mother surely gives great weight to what is better for the child. her anguish of mind is quite understandable; but still it may be unreasonable for her to withhold consent. we must look and see whether it is reasonable or unreasonable according to what a reasonable woman in her place would do in all the circumstances of the case."j43 these remarks were accepted as "authoritative" by lord hailsham in the leading case of re w (an infant) in 1971 and lord denning's 1962 test . h d 144remams t e test to ay. lord denning participated also in one ofthe earliest children's rights cases (hewer v. bryant).145 his description of the parental right to physical possession of children as a "dwindling" one which starts "with a right of control and ends with little more than advice" remains memorable.146 there is here a nascent recognition of a child's autonomy. in several cases his concern for a child's welfare can be detected. 147not surprisingly, lord denning's views on the family and his traditionalism 139 supra n.55. 140 ibid. 141 ibid at p.1242 per lord wilberforce. 142 h.l. deb. vol. 275 col. 44 (14th june, 1966). 143 re l [1962] 106 s.j. 611 144 [1971] a.c. 682 145 [1970] 1 q.b. 357. 146 ibid at p.369. see also b (br) v. b (j) [1968] p. 466. 147 for example, re s (an infant) [1965] 1 w.l.r. 865. see also surrey c.c. v. s [1974] q.b. 124. 109 denning law journal are reflected in decisions in child law matters. thus, in re l, he denied an adulterous mother custody. "it would be an exceedingly bad example if it were thought that a mother could go off with another man and then claim as of right to say: 'oh well, they are my two little girls and i am entitled to take them with me. i can not only leave my home and break it up and leave their father, but i can take the children with me and the law will not say me nay.' it seems to me that a mother must realise that if she leaves and breaks up her home in this way she cannot as of right demand to take the children from the father.,,148 it is significant that twice in this judgment he uses the expression "as of right," and that he went on to refer to the case as "a matter of simple justice" between mother and father. the matter should have been characterised, as it is now, as one concerned with children's welfare. 149 lord denning's determination to punish a "loose woman" got the better of him, rather as it was to do in the notorious bradford teachers' training college case. 150 other decisions, though less striking, nourish similar notions about family life. thus, in w v. wand c, he asserted the "general principle" that it was better for a boy of eight to be with his father than with his mother, even if he had been brought up by his mother until h 15] th' d' d f 152t en. is was soon isapprove o. he both extended and narrowed wardship jurisdiction. in re p (ge) (infant) he held that the court had jurisdiction in respect of a stateless alien minor, who though not present in the jurisdiction would be said to be "ordinarily resident" in england. 153there was some authority in the law of treason for saying that an alien resident could owe allegiance even though he was outside the country, but, if the analogy is tenuous, lord denning was not deterred from making law. ]54 he commented: "we are not deterred by the absence of authority in the books. our forefathers always held that the law was 148 [1962] 3 all e.r. 1 at 3-4. 149 s (bd) v. s (dj) [1977] fam. 109 and re k [1977] fam. 179. 150 ward v. bradford corporation [1972] 70 l.g.r. 27 at 35. 151 [1968] 1 w.l.r. 1310 152 in re c (a) (an infant) [1970] 1 all e.r. 309 153 [1965] ch. 568. 154 joyce v. d.p.p. [1946] a.c. 347. 110 famil y justice and famil y values locked in the breasts of the judges ready to be unlocked whenever the need arose." 1 5 but lord denning cut down the ambit of the protective jurisdiction on at least three occasions: in each the public interest was involved. in s v. mcc,156 a paternity dispute, the interests of justice prevailed over the interests of the child; in re a (an infant), 157 the integrity of immigration decisions was protected from surveillance by means of wardship; and in re x (a minor), 158 freedom of publication (which could cause an adolescent gross psychological damage) was said to override any interests the child might have. all three decisions are consistent with authority, and each has since been followed.159 since lord denning's retirement family law has seen major changes and we can but speculate how he would have reacted. he would clearly have approved of child support legislation and the sentiments of the family law act 1996 (its mediation provisions were presaged by his own recommendations nearly half a century earlier). whether he would be as happy with the very different policies of the children act 1989 is less likely. a study of lord denning's family law decisions throws light on much besides the law itself. we learn about his working personality and his thinking processes. and his decisions in family matters are a microcosm of his concerns elsewhere. they reveal lord denning at his most typical. his populist sense of justice may lead to some indefensible decisions and some wayward reasoning and also to some inconsistency. but, on the whole, the real good he has done outweighs any injustices he has caused. without lord denning family law would have been more rigid and less sensitive; more oriented to rights than to needs and welfare and the interests ofthe weak. it would also be less committed to the patriarchy. the contradictions remain: a harbinger of, and catalyst for, reform and at the same time a bastion of reaction. it is unnecessary to resolve these conflicts: lord denning is, and will remain, a living paradox. 155 supra n.53 at p.583 156 [1970] 1 w.l.r. 483 (though not a wardship case, it may be treated as such since the p.rinciples are identical). 57 [1968] 2 all e.r. 149. 158 [1975] fam. 47. 159 see in general a v. liverpool city council [1982] a.c. 363. iii about a "proper law of a (restitutionary) remedy" olusoji elias· the term "proper law" isa concept normally used to determine the choice of applicable law in transnational contract disputes. it can also apply by analogy to other types of issue arising in conflict of laws cases, which are also subject to choice-of-law method. when it does apply, for example, in finding whether there has been an unjust enriclunent and whether consequently there ought to be restitution, its hallmark is its flexibility of scope and approach. it has little or no application to non-substantive questions, e.g., of remedy, which must be decided by the law of the forum, unless the lexfori specifies, as occasionally it does, that resort is to be had to the lex contractus' rules in point. therefore, the use of the phrase "the proper law of the restitutionary remedy" in barings & co. ltd. v cunninghame district councip (baring.~) was mistaken. the aim of this discussion is to show why the use of the term at issue, "the proper law of the remedy", either savours of some infidelity in its application to remedies or is malapropos, if ever it can be otherwise, of the issue of relief. for there is at present far too little to be garnered from the judicial or scholarly literature upon which to conclude that the applicable remedial law can be non-forum law, and it is necessary that this "non-forum law" attribute be evident in order for characteristic proper law theory to be identifiable in these or in any other respects. every legal subject has its own distinct basic concepts, doctrines, and terminology. these not only facilitate the judicial resolution of cases of action that belong to the given legal subject, but have also provided tenets for more thorough examination of the legal issues which inevitably must arise . • lecturer in the conflict of laws, buckingham law school; member, international bar association international litigation committee. i am grateful to mr. nicholas davidson, q.c. for his comments on initial drafts. the usual disclaimer applies. to fj. i [1996] times law reports 538. 85 the denning law journal it is in the nature of the subject of the conflict of laws that, because the laws of more than one country are potentially applicable to disputed facts, the provisions of the appropriate legal system must be identified and applied to the merits of a dispute. so it is that the common law concept of "the proper law", to use the longaccepted terminology for the object of this exercise of identification and application, has from its inception in the early decision in robinson v blancf been used to resolve disputes which contain elements that are properly located outside the area of application of the forum's law. matters of forum jurisdiction and procedure, which broadly conceptualized must by definition include the matter of remedies, have never been resolved by reference to "the proper law". briggs has shown, however, that an analogous notion of propriety can be used to describe the justifications for the conceptually inter-related matters of the acquisition of jurisdiction on the one hand and, on the other, of the recognition and enforcement of judgments3; and remedies must be awarded or withheld in the form of a judgment4. it is therefore a matter of importance that the tenn "proper law" was deployed in the context of the particularly procedural matter of remedies in the report of the decision of the scots court of session (outer house) in baring.~·. the use of the term in the judgment has been much overlooked in the extensive and stimulating literature which has addressed the substantive issues5. as will be seen, this focus is 2 [1558-1774] all e.r. 177. 3 a. briggs "which foreign judgments should we recognize today?"(1987) 36 i.c.l.q. 240, especially at pp. 250 et seq. the derivation of his justifications is from principles of reciprocity as a foundation for these respective matters of forum jurisdiction on which the forum's competence depends; see also the recent court of appeal ruling in baghlas lal faler factory co. brfor industry ltd. v pakistani national shipping company,.: pakistani national shipping corporation (phillips l.j) the times, december 17th 1997. 4 see, generally, z. slatev "the effects of judgments as remedies" in i.r. scott (ed.) international perspectives on civil justice: essays in honour of sir jack jacob (london: butterworths, 1990), pp. 169-178, especially at pp. 172-175 on the res judicata aspects of judgments. 5 e.g., generally, 1. bird "choice of law and restitution of benefits conferred under a void contract: baring bros. v cunninghame dc' [1997] l.m.c.l.q. 182. her comments are taken up variously in the course of the present article. other more generalized commentary on restitution/enrichment conflicts before baring.\· include h. gutteridge and k. lipstein "conflicts of law in matters of unjustifiable enrichment" (1941) 7 c.l.j. 80, k. zweigert and d. miillergindullis "quasi-contract", chapter 30 of k. lipstein (ed.) international encyclopcedia of 86 proper law of a (restitutionar y) remedy? accentuated by the basis for the litigation having been in the choice-of-law aspects of agreement-related luljustenrichment conflicts. as will presently be discussed, the determination of these aspects involved the application of the proper law of the obligation, with the added factor that the agreement concerned was void ah initio. it is the report of the decision which forms the main focus of this paper. in its characteristic form, the concept of the proper law is relevant, according to the courts, in relation to contract conflicts, and is typically expressed in terms of an objective ascertainment of the law which, by the express choice of the parties or by implication from all the circumstances of the contract, is to govern the issues arising from the contract. 6 the contract, or a particular aspect of it, is then taken to be "most significantly connected or related" to one particular jurisdiction rather than to another. where this approach applies, its conclusive attractions over and above, for example, the definitive selection and application of the law of a party's domicile, of the law of the place of contracting or of the law of the place of performance of a contract have been embraced outside the common law world, notably by the states signatory to the rome convention on the law applicable to contractual obligations 1980 (hereafter, the rome convention). subject to some modifications7, the convention is now incorporated into united kingdom law via the contracts (applicable law) act 1990 (the 1990 act). furthermore, the doctrine has been the subject of considerable scholarly literature, e.g., as to its enduring characters, or as to its severability (or the feasibility of referring particular contractual issues to different laws if the circumstances so comparative law (ttibingen: paul siebeck, 1974). others, which are more recent, appear in the course of the discussion. 6 the body of illustrative case law is enormous and need not be cited. for a sufficient exposition, see the house of lords' decision in dimskal shipping co sa v international transport workers federation [1992] 2 a.c. ]52. for a codified version, see, e.g., the rome convention on the law applicable to contractual obligations 1980 (art. 4( 1) thereof). 7 one of these is contained in s. 2(2) of the u.k. contracts (applicable law) act] 990, infra, to the effect that art. 1o(1)(e) of the convention, which provides that the proper law of the contract applies to "the consequences of nullity of the contract", is without the force oflaw in the uk 8 pace fa mann "the proper law of the contractan obituary" (1991) 107 l.q.r. 353. 87 the denning law journal require )9; indeed as to the indebtedness of the progress of english, general, and comparative private international law to the doctrine 10. its endearing feature, its flexibility, is at once the justification for its approval as well as a basis for its possible misapprehension, as was occasioned in barings. there have been various attempts to extend the scope of applicability of the doctrine beyond contract. some fifty years ago, the late j.h.c. morris persuasively argued in favour of the conceptual potential of the doctrine in tort conflicts situationsll. these were given a substantially positive airing in united states' courts in, for example, the celebrated road traffic accident case of babcock v jackson, where "it [was] new yark, the place where the parties resided, where their guest-host relationship arose and where the trip began and was to end, rather than ontario, the place of the fortuitous occurrence of the accident, which [had] the dominant contacts and the superior claim for application of its law."] 2 english courts have, however, not accepted the concept of a proper law of a tort. indeed, the scope of the contractual proper law hardly extends to tort issues arising in concurrent liability cases (i.e., where a tort coincides with a breach of contract, with the further incidence ofliabiiity limitation) as was maintained, for example, by the patron of this journal in sayers v international drilling13• at the court of 9 c.a. mclachlan "splitting the proper law in the conflict of laws" (1990) vol. lxi b.y.b.i.l. 311. joe.g., f.a. mann "the proper law in the conflict of laws" (1987) 36 l.q.r. 437. r. fentiman's is a lone voice that usefully applies the term to matrimony: "the validity of marriage and the proper law" (1985) 44 c.l.j. 256, at pp. 257 et seq. 11 "the proper law ofa tort" (1951) 64 harv. l.rev. 881; seealso(1946) 62 l.q.r. 180. 12191 n.e. 279 (1963), per fuld 1.; see also kilberg v northern airlines inc. 9 ny (2d) 34 (1961). a valuable discussion of the broader jurisdictional framework is provided by kurt siehr's "traffic accidents" in c. mclachlan and hon. peter nygh (edd.) transnational tort litigation: the jurisdictional principles (oxford: clarendon, 1996), at p. 192. 13 [1971] 3 all e.r.; see also l. collins essays in international litigation and the conflict of laws (oxford: clarendon press, 1994), chapters ix ("interaction between contract and tort in the conflict of laws") and x ("exemption causes, employment contracts and the conflict of laws"), especially between pp. 397-402 where he discusses sayers. 88 proper law of a (restitutionar y) remedy? appeal stage of chaplin v boysl4, he applied an issue-specific is "proper law of a tort", only to be over-ruled on appeal to the house of lords 16. a liberal reading of the leading speech delivered by lord slynn ,in the much more recent case of red sea insurance ltd. v bouygues sa, 17 could perhaps be seen to contain a modest degree of acceptance of an attenuated issue-specific version of the doctrine, as it might apply to international torts, particularly where his lordship stated that "the exception [to the application of english law] is not limited to specific isolated issues but may apply to the whole claim, for example, where all or virtually all of the significant factors are in favour of the lex loci delicti. "18 previously in the same judgmentj9, he roundly rejected the theory of a proper law of a tort, but admitted a policy of flexibility in identifying the applicable substantive law. on the issue of relief, one might be inclined to presume that were the lex loci delicti to contain remedial rules, then such rules would be directly applicable unless some other reason (e.g., public policy; incompatibility of the forum and the lex delicti forms of relief) dictates otherwise. a fi.uther instance of the type of objectivism associable with proper law theory is to be found in s.ll (2)(c) of the private international law (miscellaneous provisions) act 1995 (tlle 1995 act) which provides that in multi-locality torts, the applicable law is the law of the country in which the most significant element or elements of the events constituting the tort or delict in question occurred. whatever be the conceptual potential of such practical extensions of proper law theory and method, it is to be noted that there is neither express judicial authority for the doctrine in relation to matters other than those arising ex contractu. nor are 14 [1968]2 q.b. i. is that is, as may be contrasted with one that is broadly specified by the cause-of-action itself 16 [1971] a.c. 356, at pp. 389 and 391. 17 [1995] 1 a.c. 190. 18 ibid, at pp. 207-208. 19 ibid., at p. 206. 89 the denning law journal there sufficiently compelling indicators that the typification of the doctrine as has thus far in the literature been confined to substantive contractual issues characteristically also covers issues of jurisdiction or those of procedure, such as the all-important matter of relief. of itself, judicial relief is arguably the ultimate test of the efficacy of the judicial process. it is the particular circumstances of the barings case in point which must now be attended to. it is just as well to add that the forthcoming enquiry aims to point out the error or, at best, the inchoacy in the unlikely use to which the term was put. a sound viable alternative will be described, to give as much rein as the present mediwn will allow to the plurality of considerations that must attend the use of the term. the remainder of the paper is sectioned as follows: a discussion of the facts and contentions in barings; the issues from "proper law", and "remedy"; the decision, and its consequences and implications; applicable remedial law: objective localization; and finally a conclusion. barings: the facts, and the contentions. barings is one of many cases20 arising from agreements between a nwnber of local authorities acting ultra vires on the one hand and several banks on the otherl. the pursuers were a bank who with the defenders had made a forward-rate swap agreement, defined in barclays bank pic v glasgow city council as "an agreement bel .veen two parties whereby one pays to the other, over 20 other similar fact cases include barclays bank pic v glasgow city council; kleinwort benson ltd v gla~gow city council [1994] 4 all e.r. 864; westdeutsche landesbank girozentrale v islington london borough col/neil [1994] 4 all e.r. 890; kleinwort benson ltd v sandwell borough council; kleinwort benson ltd v sol/th tyneside metropolitan borough col/neil [1994] 4 all e.r. 972; morgan guaranty trust co v lothian regional col/nci11995 sl t 299 (in which the earlier parallel english case of hazell v hammersmith and fulham borough council [1990] 2 q.b. 697 is examined); macmillan inc v bishop!>-gateinvestment trust pic (no 3) [1996] i all e.r. 585. 21 that is, with the exception of the court of appeal decision in macmillan in which the parties were a communications company and an investment company, and the subject matter was confined by the court to whether the lex situs governs issues of priority to ownership of shares in the wider but unresolved framework of restitution conflicts: cf. 1. stevens "restitution or property? priority and title to shares in the conflict of laws" (1996) 59 m.l.r. 741, and a. dickinson "restitution and the conflict of laws" [1996] l.m.c.l.q. 556. 90 proper law of a (restitutionar y) remedy? a period of months or years, sums calculated by reference to the difference between a fixed rate of interest and the current market rate of interest from time to time...the contract does not involve a 10an...the essential feature of the contract is that it is a futures contract, the financial outcome of which depends on future movements in interest rates. the transaction could be used as a genuine hedge transaction, or it could be used for speculation "22. the british bankers association standard form developed specifically for these agreements was used. the form had provided for english law as the governing law. in furtherance of the supposed contract, the defenders had paid monies to the pursuers, on which basis the latter subsequently paid back larger sums believed by the parties, at the time, to be contractually due. the contract itself was subsequently agreed upon between them as being void ab initio, following the decision in morgan guaranty trust company v lothian regional council23 (hereafter, morgan) on identical facts, because the defender local authority lacked the necessary contractual capacity. the house of lords had first held such contracts void in england in hazell v hammersmith and fulham borough councip4 and, from the perspective of practical advice, it may be questioned why a scottish local authority had agreed to subject the vires aspects of its activities to rules other than those of its parent legal system, but this was of course not an issue in the case. the pursuers in the case in hand had asserted english law, the supposed governing law of the agreement, as the only legal system which allowed a restitutionary remedy: a policy-based assertion, that the legally regulated obligation ought to be legally remediable. the pursuers' presumption was that english law would allow the (scots) restitutionary remedy of payment. english law does not literally so permit, although the remedial process might conceivably provide identical results under either legal system. they had derived tlleir entitlement to restitutionary relief from the restitutionary right to recover the excess by which the defenders were unjustly enriched. by scots law, the fonun law of the defenders' domicile, the claim was extinguished by 22 supra note 20, at pp. 882-883, per lloyd l.j. 23 supra, note 20. 24 ibid. 91 the denning law journal prescription25. that they had sued in scotland (the defenders' domicile), rather than in england (the jurisdiction of the parties' supposed choice of governing law), was ostensibly well within the defendant-protecting policy of the applicable jurisdictional nile contained in article 2 of the brussels convention on jurisdiction and judgments in civil and commercial matters 1968 (brussels convention), as it is incorporated into united kingdom law in schedule 4 of the civil jurisdiction and judgments act 1982 ( the 1982 act). the question of the right forum turns up in the course of the paper6, and can be said to strengthen the basis for consideration of procedural matters of forum jurisdiction and judgment in identical terms, differently from those of the substance or merits of the obligation; to reiterate, the latter are the typical subject of proper law theory. the defenders argued that in accordance with morgan, both under the contract and under english law, the proper law of tlle contract, there was no claim to restitution. this argument is difficult to accept since there was, without doubt, an unjust enrichment, even though the claim was difficult to formulate. the main questions arising concerned, first, the extent to which the issues and ratio in morgan a case pleaded, argued and decided as a domestic case although there was a choice-of-iaw clause in favour of english law could apply to the instant conflicts case. this issue was disposed of by distinguishing the cases further on the point that the wholly domestic scots circumstances and, consequently, the test applied in the former did not divulge the best method to be deployed in the latter case in identifying the legal system with which the quasi-contractual obligational situation was most closely related. the second and more interesting question, as was expressed by the court, was whether the proper law which validated a contract also determined the nature and extent of the available restitutionary remedy. it is to be noted that, in the present case, the contract itself was itself incapable of validation howsoever (not even by the parties' supposed choice oflaw) since it was void. the reason for scottish suif7 may be recalled, but it need not be reviewed at this stage of the present paper. 25 cf s. 6 prescription and limitation (scotland) act 1973. 26 in the main text, after n. 54. 27 i.e., furtherance of art. 2 brussels convention supra. 92 proper law of a (restitutionar y) remedy? the issues: "proper law", "remedy". the ratio in the decision of lord penrose, allowing a proof before hearini8 in the action, was that the law of the remedy sought (of payment) was not necessarily also the supposed contrachlallex causae. the result, by which scots law applied, was consistent with his judgment in morgan. his bordship proceeded to entertain proof of the relevant provisions of the law of the physical locus (england) with which the contract was materially connected, and which might or might not have been the proper law of the (void) agreement. the result reached (technically, his answer) was that the proper law did not, qua validating law, necessarily apply to the availability of the given remedy. this finding is neither difficult to grasp nor, by analogy, different from the conceptual separation between the enrichment which underpins the cause of action for restitution on the one hand (governed by the lex causae) and an award of restitution itself on the other (a matter for the lex fori). however, much more significant and inviting considerations for the ripening law of enrichment conflicts29 are raised, mostly because of the frequent, and even casual, references to considerations of propriety of the typically procedural matter of remedlo. his lordship rightly observed that tllese and related questions had been "the subject of debate among eminent jurists and other commentators, but had received little attention from the courts", that "there was no binding authority and that there was a lack of convincing analysis in such authority as existed on the critical issues in the case,,3l. he opted for a flexible approach32 which was redolent of lord wilberforce's authoritative predilection for flexibility (as to the different matter of the lex delicti for international tort actions) in boys v chaplin in the house 28 this procedure is provided for in s. 72 court of session act 1868, to enable the establishment of the facts in issue before trial on the merits. 29 cf. the decisions in note 20, supra; also, a. briggs "restitution meets the conflict of laws (macmillan v bishopsgate)"[1995] r.l.r. 94; 1. bird "restitution's uncertain progressmacmillan v bishopsgate" [1995] l.m.c.l.q. 308; and generally, f.d. rose (ed.) restitution and the conflict of laws (oxford: mansfield press, 1995). 30 cf l. collins et al (edd.) dicey and morris on the conflict of laws (london: sweet & maxwell, 12th ed., 1993), pp. 171-172, on remedies as procedure, consequently, for forum internal law. 31 at p. 13 of the transcript. 32 at p. 16 of the transcript. 93 the denning law journal oflords33, as well as of blaikie34. the same flexibility may, in more general terms, be identified in sections 6 and 221 of the american law institute's restatement second of the conflict oflaw;s. of itself, his lordship's decisive preference for flexibility may well have substantially explained the use of the term "the proper law of the restitutionary remedy", not least because he did not himself consider the non-enrichment ramifications of his preference, nor was he required by counsel to have done so. in the first place, it is neither unusual nor necessarily incorrect to associate "claim" or "action" with "remedy", without referring to the discrete formal aspects of "remedy". it has been incidentally observed that "[t]he reality is that restitution actions which arise out of void contracts are, in a sense, merely contractual remedies and the law which declares the contract to be void is the most suitable to regulate the consequences of that findini6." furthermore, the on-going unpacking of the law of restitution in the conflict of laws is pervaded by the choice oflaw aspects thereof, and this is so, predominantly, because of the important divergences of approach between different restitutional systems to which a given fact-situation could conceivably be related37. this would make flexibility of approach, in general terms, particularly attractive in these circumstances. all the same, an "action" is for a "remedy" (as in an action for 33 supra, note 16. 341. blaikie "unjust enrichment in the conflict of laws" [1984] 1.r. 112. 35(st. paul, minnesota: a.l.i. publishers, 1971). 36 bird, loco cit., at p. 186 (emphasis added). thus, "action" and "remedy" (the latter construed in its weaker sense to be synonymous with the former) both go to the redress of the deleterious effects of a contract or other obligational situation; see the present writer's "forum discretion in assuming jurisdiction under the brussels convention: pearce v ave arup partnership and others and the role of the doctrine of forum non conveniens" (j 997) 9 a.j.i.c.l. 673, at pp. 675-676 (paras. (5)-(7) there; see also k. barker "rescuing remedialism in unjust enrichment law: why remedies are right" (1998) 57 c.l.j. 301, especially at pp. 304306,318-326. 37 cf b. dickson "unjust enrichment claims: a comparative overview" (1995) 54 c.l.j. 100: that in comparativist terms, the law of restitution has disparate origins, applications and policies, in the jurisdictions in which it is to be found. 94 proper law of a (restitutionar y) remedy? restitution or, better, an action of unjust enrichment), and the remedy can be analyzed of itself without necessarily requiring its being related to the particular underlying cause of action which in its turn may deserve separate attention. mcgregor's reasoned inclination38, albeit in the rather different setting of refuting the separate tenn "restitutionary damages", for separately addressing the concepts of "unjust enrichment" and of "restitution" must be instructive in present respects in that it rightly emphasizes the remedy itself. granted that the use of the tenn "the proper law of a restitutionary remedy" may simply have been a misnomer for the law applicable to the substance of the enrichment, ampler discussion is nonetheless necessary because of the sheer but unacknowledged novelty (with a host of implications) of the use of the tenn. for instance, the use of this tenn might signifythat the various problems associated with remedies, although usually treated as a matter of procedure in the conflict of laws, and, thus, traditionally governed by the lex.fori, could be analysed in greater detail to detennine whether one or other aspect could be governed the law of another state. herein lies the difference between conceptualizing remedies in the conflict of laws and developing "a proper law of tlle remedy"; either may be said to go to the applicable remedial law. the fonner is the present writer's preference. the forum-oriented consequentialism of tile decision39, thus the long-standing association of remedies with forum law40, makes it tile ideal medium for tile discussion tilat now follows, beginning witil tile responsive intersection between "substance" and "remedy". the added consideration is that the circumstances are balanced between scotland and england, and tilese respective legal systems did have significantly well-founded claims to being applicable to the dispute a real conflicts case. the decision, and its consequences and implica nons. (i) the restitutionary right to recover. the decision was based on the differentiation of tlle issue of tile (enforceable) 38 in "restitutionary damages" in p.b.h. birks (ed.) wrongs andremedies in the twentyfirst century (oxford: clarendon, 1996), p. 203, at p. 204. 39 see, e.g.,bird, lac. cit., pp. 191 (in the text there preceding its note 67) and 192 (her main text before note 69). 40 cf dicey and morris, rule 17, op. cit., p. 169. 95 the denning law journal restitutionary right to recover from the issue of the enrichment so that, as incidentally was argued by the defenders, the respective concepts could in a suitable case conveniently be governed by different legal systems: for example, the former by the normal fonun law for the particular (restitutionary) remedy sought, and the latter by the law that governs the substance of the enrichment (the lex causae). this would be in accordance with normal conflicts methodology by which co-ordinated remediability by fonun and substantive laws is the fixed rule, as was applied for example in phrantzes v argentl'4l,where the lex causae obligation to provide dower was unenforceable because the available forum law machinery was inapposite to the upholding of that obligation. it needs to be made clear that it is in the nature of the conflict of laws that the ascertainment of an entitlement in accordance with a non-fonun lex causae does not automatically convert the entitlement in question into one which the fonun can or will enforce through its own machinery. therefore, such an entitlement only becomes enforceable, qua "right", in tlle eyes of the fonun where the procedure exists to afftrm the status of the entitlement as a full-fledged right. thus, if "established legal right to recover" and "form of legal recovery" are to be considered conjunctively (strictly speaking, they are differentiable) on the basis that they may have been established by reference to the same law, then there can be little analytical or practical difficulty. as was the case in the barings decision, these precepts need respectively to be conceptualized and subjected to the correct law(s). put differently, there being a fonntiaction/remedy upon which to prosecute a clainl (on the one hand) for a proven unjust enrichment (on the other) are best considered disjunctively. to describe these otherwise would misconceive them as being one and the same issue, which they invariably are in a purely domestic case ( e.g., morgan), whilst in a conflicts adjudication they might well be separated out. if by definition either issue were exclusively governed by the lex causae, especially where the underlying contract is void, then the result, as given in the report, would be to produce "a fundamental difficulty to be overcome in seeking within what was ex hypothesi a nullity the solution to the choice oflaw aspects of the problem of restitution. the proper law had exhausted its purpose in dictating that solution and it was not attractive to proceed then to give effect to a term of that contract when the contract had ceased to have any validity between 41 [1960] 2 q.b. 19, at p. 35. 96 proper law of a (restitutionar y) remedy? in this way, his lordship discountenanced the application of the parties' english choice-of-iaw clause. (ii) "substantial" logic and justice: remedies and the choice-of-iaw process. to have disapplied that choice, as lord penrose did, was to serve the ends of "substantial" logic and justice43. this did not mean, as his lordship recognized in allowing for any fortuity as to the identification of the locus of the enriched party and of the enrichment itself4, that the parties' supposed but judicially avoided and overruled choice of substantive law could not ultimately be "relevant and material"45 to the issues of restitution, "but will not per se be determinative of that connection'>46;or, indeed, by civil analogy, that substantive law may generally be relevant and material to other relief in a different cause of action. the judgment also stated "that (a) the restitutionary obligation [not the restitutionary remedy] or quasi-contractual obligation is governed by the proper law of that obligation; and (b) that the proper law of the obligation is the law of the country with which, in light of the whole facts and circumstances, the critical events have their closest and most real connection"47. 42 ibid., at p. i3 of the transcri pt. 43 ibid, at pp. ]3-14 of the transcript. 44 ibid. 4s ibid. 46 ibid., p. ]6; see also mclachlan and nygh (edd.), op. cit., pp. 230-23] (albeit in relation to tort-generated enrichment): "it has the merit offocusing on the enrichment itself perhaps the' best common guide to decision in this complex area of the law", having considered the justness and the convenience of the law of the locus of the assets (or, as in the present case, the money) involved, the law of the place where the obligational situation is centred; see also chase manhattan na v israel-british bank (london) ltd. (]98]] ch. 105, in which the law of the place of enrichment was applied. 47 at p. 16 ofthe transcript, citing blaikie; cf dicey andmorris' rule 201, pp. 147]-1478, especially p. ]473 (page ]0 of the transcript); also, arab monetary fund v hashim [1996] ] 97 the denning law journal this means that the substantive restitutionary obligation involves likewise the choice oflaw, but not that the award of a given (procedural) restitutionary remedy likewise categorically involves the choice of law, the reason for this is that the available remedy need not be the one which is indicated by the law by which the unjustness of the enrichment will have been established. before the matter of remedial law itself is taken up in the next section, some light needs briefly be shed on a number of significant practical issues arising from the foregoing analysis, in particular, on the matter of the "substantial logic" upon which the application of scots law was founded. first, it would appear to have been sound advice if the parties had in fact made provision for agreed remedies partly to remove issues from practical policy, for example, the question whether the legal entity neither constituted, domiciled, and managed in nor subject to the relevant foreign substantive law did in fact wish to be subject to that non-fomm law, especially where the issue is the validity and consequence of its transactions. it also seems fair to examine that law and to seek to bring it to bear on the considerations, or, finally, the parties could have agreed that an english fomm exclusively should have jurisdiction over matters arising under the agreement. (iii) bird's commentary on barings. the view that choice-of-iaw method could be applied to the more strictly remedial aspects of conflicts cases in general is not new. it is perennially relied upon by counsel, as for example in baschet's case where french law of injunction was the basis on which argument in an action for that remedy from an english fomm was founded48. from the (procedural) standpoint of remedies, this view tends to (over)emphasize the scope of relevance of the underlying substantive aspects ofa breach of obligation, the resolution ofthese aspects themselves is properly subject to choice-of-iaw, and in relation to the restitution-based facts at present under consideration, this subjection has been most commendably examined by bird49. the gist of her rigorous and compelling analysis mns against the actual decision in barings. she argued that the application of the supposed proper law of a void l1.rep, 589, at p, 597: "the obligation to restore an enrichment obtained at another's expense is governed by the proper law of the obligation," 48 [1900] 1 ch. 73. 49 loco cit., .\1ipra, note 5. 98 proper law of a (restitutionary) remedy? contract, qua lex causae of an action for restitution, is in fact neither illogical nor unjuseo; because (a) the void contract is nonetheless "a reference to something which the parties have actually done and is intimately connected to the restitution claim before the court,,51, (b) "the void contract contains evidence of the most appropriate law to govern the restitutionary claim,,52,(c) it "is ...in conformity with the parties' expectations" and is of the parties' choosing or is "the law of the country with which the contract is most closely connected,,53, and (d) is likely to be the law which is most closely connected to the restitutionary claim consequent on that failure and which has the "greatest interest in regulation of that claim"54, thus suggesting to this writer that the claim ought reasonably to have been brought in england, and (e) "from a practical perspective, the two issues [of what avoids a contract and whether payments made under a void contract can be recovered] are intimately related; very few of the legal problems encountered by those lawyers are likely to raise the larter but not the fonner issue. accordingly, it is difficult to see why the two issues should be governed by different laws,,55. she made clear that, for her, "[w]hile from the point of view of strict legal theory the question of whether a contract is void falls under a different category to the question of what the consequences of that finding are, from all other points of view it is the same question.,,56 but contractual validity, and its effects, are really not at 50 at least not where the contract is correctly nullified for other types of reason, e.g., fundamental mistake, misrepresentation, or duress. the parties cannot have been ad idem in any of these situations. 511oc. cit., p. 184. 52 ibid, at p. 185. 53 ibid, see also art. 4(1) rome convention. 54 ibid, p. 186. as was pointed out, supra, at note 8, the 1990 act excludes art. 10(1)( e) of the rome convention, which article provides to refer the consequences of nullity to the proper law of the contract. in relation to restitution claims based on a void contract, at page 14 of the transcript, lord penrose felt constrained to have explained this reservation in terms of a legislative intention to separate the lex causae as to nullity from the lex causae as to the contract. hansard «1989) 513 hl debates, cols. 1257-1273) makes clear that the (legislative) lords reckoned with a distinction between unjust enrichment and contract, but not that the reservation was specifically aimed at unjust enrichment and any restitution (better, restitutio nary orders) consequent thereon. 55 ibid, p. 186. 56 ibid. 99 the denning law journal all the same question from the practical remedial point of view of the form of relief that may apply to an enrichment consequent to nullification. it is nonetheless deserving of attention that she took issue with the decision to disapply the putative proper law in favour of a forum-oriented approach. nor is her view, that the declined law (albeit, not qua parties' choice) ought to be a voidcontracts' exception to lord penrose's flexible rules7, without considerable foundation in commonsense, judicial convenience and, thus, in doing justice as between the parties. she had later concludedss, however liberally, that in the final analysis it is but a fine line between his lordship's view and hers, and that it is the issue of optimizing flexibility in the individual case that separates the respective views. with respect, the differences of rationalization and practice can be quite substantial and, having regard to the differences between his lordship's and her views, flexibility is therefore deceptively variable. indeed, closer to the present obligational situation, similar argument was extensively relied on in the arab monetary fund casess9• that the contract is void in the present case is, for the sake of argument, sufficiently easy to prevail ove~o so as to pennit, for example, the substitution of the question of the effect of the void contract as between the parties (or their restitutionary liability) with the effect of the parties' voluntary and legally imposed relationship (their liabilities from the agreement). (iv) a feasible via media: re-emphasizing forms. the present writer's view is, in several respects, a via media in its relation to the judgment which correctly, it is submitted, conflates remedial law with a flexible forum-oriented approach on the one hand, and in its relation to bird's no less flexible but different view, on the other hand, that tlle legal obligation and its governing law are often really quite inseparable and that less is to be made of systems' differentiation as to remedies and remedial law. as presently will be argued, flexibility, as to obligation and to relief, is an appealing proposition in theory as well as in practice since it reconciles these 57 supra, page 99. 58 at p. 192. 59 arab monetary fund v halhim; arab monetary fund v bahiralullom (29th july 1994; ch 1988 a no. 9317; unreported; chadwick j.). 60 cf. bird, loco cit., p. 186. 100 proper law of a (restitutionary) remedy? otherwise divergent perspectives. it differs from his lordship's position in that the respective issues should be governed in the present case by the same law but not on the same bases. it is important not to disregard the matter of form which is unavoidable. pared of his lordship's adjudgment in response to the parties' arguments as to applicable law, the decision itself could be described as the result of the application of forum law to all the issues of obligation and relief, on the bases that forum substantive law was applicable in default of english law. it differs from bird's in that the degree of flexibility which she advocates would leave the theoretical underpinnings (the conceptual legal differentiation of "obligation", "remedy", and "proper law") substantially underplayed and at some cost to both theory and practice: the result of her view would be that english law directly applied to establish an obligation to disgorge, to which the forum would presumably then respond by converting the obligation into an enforceable forum right. she stopped short of the issue offorum remedy, either in the sense offorum action or of forum remedial order. although the forms of action themselves were abolished in the common law procedure act 1852 (and with this came a cause-based re-classification), it must be remembered that "the forms of action were not legal remedies,l6j,and "were specific situations of fact which acted as models or templates for deciding whether or not a litigation dispute could get into the royal courts62." the action could arguably have been brought in the english courts as the law of the place of characteristic performance of the agreement, mindful that article 5(1) in schedule 4 (the brussels convention as it applies within united kingdom jurisdictions) of the 1982 act could permit exception to article 2, the latter article otherwise favouring the courts of the defenders' domicile. in the decision of the house of lords in kleinwort benson ltd. v glasgow city counci/63, with much the same facts, the action was brought in england for the english restitutionary remedy of recovery of money paid. in kleinwort benson, the separate characterization of restitution claims, from contract-related claims arising under the brussels convention, was upheld. the effect was to disconnect the type of claim involved in these cases from contract claims so that article 5(1) was neither 61 g. samuel "classification of obligations and the impact of constructivist epistemologies" (1997) 17 leg. stud. 448, p. 461. 62 ibid. 63 [1997] 3 w.l.r. 923. 101 the denning law journal necessarily relevant not applicable, and article 2 prevailed. it ought perhaps to be reiterated that what is novel in barings, and thus of substantial interest, is the report's usage of the term "the proper law of the remedy" as though it is accepted legal parlance. the unprecedented inference is that proper law method, e.g. as espoused by f.a. mann6\ need not be limited to solving questions of substantive obligation6s, that it extends to matters of remedy. nor were the full practical, as well as the theoretical, consequences of deploying the phrase "proper law of restitutionary remedy" as such considered in the present case, as far as the present writer is aware it has not been used at all elsewhere66. (v) reviewing the problem from differentiation. the problem then becomes this: if the forum of adjudication, therefore the nature and extent of the available remedy, is to be scottish (as it was in barings), the prospect exists that the pursuers will unjustifiably go without relief if, as bird appears to suggest, the nature and extent of relief were to be referred to the same law as would govern and settle the issue of obligation to provide relief (in the sense of an obligation to disgorge). the supposed english law did not, in the eyes of the scots forum, automatically apply so as to give that relief or as would found a restitutionary obligation which the forum was able to enforce. this result would be no less unjust, for different reasons, than an outcome based on rigidly separating substance from remedy. to do so would sallow the merits of deliberating their intersecti on. what the report presents then is a problem from terminology analogous to the dilemma which, several decades ago, was encountered with regard to damages, wherein the measure of damage (heads of recoverable damage) was erroneously equated with the measure of damages (or quantum), e.g., by mcnair j in nv handel 64 loco cit., supra, at note 10. 6s see the house of lords' decision in dimskal shipping co sa v international transport workers federation, supra note 6, on the point that a restitutionary obligation arising ex contractu is governed by the proper law of the contract. if the obligation is non-contractual, the law of the place of enrichment applies. 66 surprisingly, and likely for reasons of the timing ofthe report, dickinson, loco cit. supra at note 21, banishes discussion of the instant case to the final footnote of his very informative paper, and even there he does not engage in the point at issue in this comment. 102 proper law of a (restitutionary) remedy? maatschaapij j smits import-export v english exporter.<r, or by lord upjohn in boys v chaplin68. in the case of damages, the problem, with its analytical consequences for conflict of laws' remedial adjudication, was since removed with the abandonment all together of the former expression. their lordships' conflation, if that indeed is what they respectively did, of the substantive right to damages with the remedial, or procedural, amount of damages is otherwise acceptable in that the conflation would involve the application of the same law where appropriate whatever be the formal description of that law, substantive or procedural69. (vi) the convenience of the forum of adjudication. the forum could apply the rules of quantum from another legal system, even though such rules are clearly procedural, as is required for example in article io(i)(c) of the rome convention. as kramer noted, outwith the scope of the same convention, "[a] choice oflaw problem exists only if the different laws relied on by the parties can plausibly be construed to govern the case,"70 and, more extensively, thae': "one might...object that this imposes a substantial burden on forum courts to learn and apply foreign rules of procedure, an objection reminiscent of the justification for the traditional approach [of applying only forum procedural rules]. but the court need learn only foreign procedural rules that serve substantive [resjudicata] purposes ...moreover, the adversarial system naturally limits this burden, since the court will consider only foreign rules that are properly raised by the parties. finally, finding and applying foreign procedural rules is no more difficult than finding and applying foreign substantive law...indeed, the premise of this canon is that 67 [1955] 2 li. rep 69, at p. 72. 68 [1968] 2 q.b. 1, at p. 31. 69 see, e.g., the present writer's "a critique qf the orthodoxy of excluding foreign law in the evaluation of compensatory damages in the english conflict of laws: considerations of propriety of quantum" (1986). 70 "rethinking choice of law" (1990) 90 colum. l.rev. 277, at p. 283. 71 ibid., pp. 328-329. 103 the denning law journal some foreign procedural rules should be applied because they are in reality part of another state's substantive law." illuminating and, with respect, correct as the foregoing passage is, it does not affirm the accuracy of the particular term which provides the topic of the present commentary. this is because the undifferentiated procedural rules to which he generally refers do not necessarily have within their particular purview the formal aspects of the actual forum remedies (in the present case, restitutionary)72.the passage does, however, accentuate the decisive judicial policy of the practical convenience73 with which non-forum rules at issue (in present terms, remedial) may be applied, be they characterised as procedural or as substantive. (vii) barings, remedies and "the centre of gravity" generally. if a given cause of action lies not in contract but, for example, in tort as would require reference to the lex causae/lex delicti (or however else it is more particularly to be described74) rather than to proper law considerations in their true meaning it nevertheless would not be amiss to enquire as to whether the particular facts centre upon a particular legal system, in seeking to correlate the fmding as to remedial liability with the finding as to how and how far it is more formally to be redressed. indeed, where the relief is not in money, the metaphorical plot must thicken. that it was restitutionalliability in barings can, hypothetically speaking, be regarded as random enough75 to afford an adequate basis for obligational and remedial analogues. indeed if the facts had been different, such as if they had included a positive genuine affirmation of the pursuers' as to their contractual capacity, a tort action based on negligent misrepresentation would have produced factually different 72 in a forthcoming book, judicial remedies in the cof!flict of laws (in chapter six thereot), the present writer makes the pragmatically justified case, having limited application, for conflicts remedies which will comply (as they must) with the formal attributes of the same remedies in domestic cases but which by reason of the cross-border circumstances of the cases in which their consideration will arise, need not be rationalized in precisely the same way as their domestic case counterparts. 73 dicey and morris, pp. 169 et seq. generally discusses this issue as it underpins procedure. 74 cf the introduction (background considerations) to this article. 75 cf text bearing nn. 41 and 42, .mpra. 104 proper law of a (restitutionar y) remedy? but thematically related factors. for the present discussion, the main advantage of the true facts in barings is that they gravitated towards a legal system which is not also the legal system of the forum. the point which is thereby brought home is that there is much to be said for the fact, as expressed by trooboff in relation to tort claims based on intellectual property rights, that "courts have been asked to moderate the effect of the limitations on their jurisdiction fostered by the operation of local-action or territorial principle cases. ,,76 the decision to award a restitutionary remedy (one that is available precisely because non-fonun substantive law is applicable) will exclusively depend on forum law for its fonn but arguably not necessarily for its rationalization or its governing principles. it is the preponderance of fonn which then will dictate the extent to which lex causae procedural rules will be applicable by the forum. the preponderance of fonn is, not what justifies, bird's identification of "the homeward trend and the result orientation"77 in lord penrose's reasoning. it is the fonn that limits the stricter restitutional rules to the subset of "procedure". and it is the preponderance of form which must definitionally settle the bounds of considerations of propriety as to these rules. the pre-condition for tins interpretation is that tile remedial rules of a non-forum lex causae, ifany, would need to be on all fours with ti10seofforum substantive law in point, especially where every factor, apart from tile locus of ti1elitigation, points to the lex causae. the same rationale supplies a basis from which the issue of applicability of remedial rules derives and is to be resolved; otherwise, the issue of applicability would not arise because remedies are tacitly part of forum process which of itself is typically seen to depend mandatorily and exclusively on forum law. the remedies issue belongs to the wider matter of jurisdiction (or process) wherein substantive entitlement must detenninistically feature. and it has been settled law, since re bonacina78, that lex causae categories need not precisely mirror those of the forum domestic law, so that, in that case, lack of consideration in the agreement with an italian proper law did not prevent rights ti1ereunder being enforced by the english forum. each remedy ti1atmakes up the forum's armoury of relief need not, or cannot, individually be expanded upon in ti1ispaper. but ti1e 16 in "intellectual property" in mclachlan and nygh (edd.), op.cit., at pp. 128-129; generally, ibid., 128-132 ("broadening the scope of claims asserted and relief granted"). 17 lococit., e.g., at p. 192. 18 [1912] 2 ch. 394; contra phrantzes v argenti, at note 40, !mpra. 105 the denning law journal barings facts have been shown to be versatile enough to accommodate further broad remedial considerations and indicators. (viii) a recapitulation. proper law theory and practice runs with legal relationships in which party autonomy is an over-arching consideration. it typically involves situations in which the parties' contractual freedom is recognized and enforced by the forum, wherein that autonomy is factored into the judicial redress. autonomy does not feature in relation to forum procedure in general. indeed, as jolowicz pointed out, "[s]ubstantive law is, procedural law is not, 'self-executing"'79, so that autonomy ends with the parties' subjection of their legal relationship to the procedural rules of the forum. although party autonomy does feature in contract, its scope does not quite extend to judicial relief in formal terms but, in having resolved the lex causae/proper law of the contract, will have indicated the law the remedial (procedural) rules of which are to be considered for remedial applications. so it is that, in penn v lord baltimore80 or in richard west & partners (inverness) ltd. v diclfl , the english forum was able to award decrees of specific performance of contracts relating to foreign land. the respective awards complied with the leges siti in which their actual enforcement was to take place, and defendant default would have met with contempt proceedings before the awarding forum. in these cases, the defendants were forum domiciliaries, so that the basic in personam jurisdiction was effectively exercizable as is the case in barings, albeit that the relieflies in restitution. as the foregoing analysis of the issues raised in the case has demonstrated, the circumstances by which enrichment actions are both substantive and procedural require the identification and the application of the lex causae and the lexfori for the respective types of issue. the matter of the form of the remedy that is available to the pursuers is unavoidably and self-evidently a matter for the law of the forum in which action is begun for the particular remedy, and it is submitted that the identification of the law by which the consequences of a void contract are ascertainable the law with which the agreement-derived relationship between the parties is most closely related mayor may not be the parties' supposed lex causae. 79 j.a. jolowicz in i.r. scott (ed.), op. cit., at pp. 33-34. 80 (1750) 1 yes. sen. 444. 81 [1969] 2 ch. 424. 106 proper law of a (restitutionary) remedy? effectiveness depends upon the autonomous awarding forum's jurisdictional competence and, to an arguably lesser extent, on the enforcing court(s). (ix) the issue of effectiveness. internationally effective remedies, especially those which accurately reflect the causa established by non-forum law, as the central aim of international administation of civil justice must be as desirable as the conflicts policy of entertaining foreign suit at all, and this is the starting point from which the application of the doctrine of the proper law is to be approached. applicable remedial law: objective localization. the intersection of "substance" and "remedy" can matter little when the issue is form of relief. indeed, the interchangeability of "action" and "remedy" should be seen as the basis for coincidents of "jurisdiction" and (remedy-awarding) "judgments"82; the latter is but an extrapolation from the former. if objective localization pertains to the former, in the sense that it mayor may not be jurisdictionally proper for the forum to entertain a cause of action, then it can apply to the latter, in the sense that the remedial considerations in a conflicts case may need to be localized because, without doing so, the matter of relief will be either too domesticized or lost to a predominant lex causae and to want of form. judicial policy on remedies must of necessity be forum-oriented, lest remedies be issued outwith the forum's jurisdictional competence. it is submitted that it would further an interest in coherent adjudication if conflicts remedies be conceptualized in this way to reflect their jurisdictional foundations. further to such a conceptualization, it is worthwhile to recognize the primary (jurisdiction-acquisition), the judgment, and the post-judgment (enforcement) components of remedial jurisdiction, as may be necessary to the particular case. the nomenclature alone is indicative of how remedies conceptually relate to general jurisdiction. but it is important to sacrifice neither the obligational dimensions nor the fact that the forum will never be required to make a formal order unknown to or unprovided for in its own legal system. nor can it be over-emphasized that, by and large, the terms on which jurisdiction is acquired by a forum will mean that the bulk 82 cf briggs, loco cit. an illustration of the point is that under the 1995 act, foreign torts are actionable/justiciable in england insofar as they can be brought within recognized causes of action in england. 107 the denning law journal of conflicts cases the forum will detennine will not require such gymnastic remedial adjudication as could affirm the viability of "a proper law of a remedy". returning to barings, the scots law remedy of payment would otherwise have to sustain a right to restitution which sounds in a non-forum (english) proper law, thus harking back to the need to dismantle the unnecessary "fundamental difficulty" cited earlier from the report in the last section of this article, in closing the sub-heading "the restitutionary right to recover'. but recent and current trends (e.g., in the way that the lex loci delicti has in principle superceded dual actionability by section 10 of the 1995 act as the basis for tort damages as was described in the preceding section of the present paper) make it unwise to rule out now or foreseeably the seductive possibility of restitutionary remedies in the conflict of laws being referred to an objective localization akin to briggsian jurisdictional propriety83 (jurisdictionacquisition and (remedial) judgment), significantly, where all the non-forum law circumstances do not make it inappropriate to do so. these considerations are not so far removed from carter's reference, in relation to the old fonun-oriented tort conflicts rule, to "technique(s] ohorum control... (the] significance and value (of which are] to be assessed in the context of established (if not always legitimate) forum control techniques of general applicability, such as resort to public policy or the manipulation of the characterization rules"84. it remains to be seen of course whether the exception to the new lex loci delicti rule will be seen to accommodate the referral of remedial issues of a tort conflicts case to its lex delicti as other issues in such cases can now be under section 11 or section 12 of the 1995 act, public policy permitting85. conflicts remedies need to be conceptualized and articulated in a way that responds to the governing law of the obligation and (or) the law of enforcement. on any bases that the pursuers' ultimate entitlement to restitution is subject to scots fomm law, tllat the law of restitution conflicts is not quite terminologically clear (in that substantive restitution appears to overshadow the description of the 83~ljpra, note 82. 84 p.b. carter "choice of law in tort and delict" (l991) 107 l.q.r. 405, at pp. 408-409. 85 cf. the law commission consultation paper no. 132 (1993), p. 121, para. 5.28, points out the defunct historical antecedents shared by criminal law, the law of tort and the law of remedies. 108 proper law of a (restitutionary) remedy? considerations at the expense, it would seem, of the remedial issues) or that proper law theory is characteristically unsuited to fonnal remedies strictly speaking the better view appears to be that the tenn at issue will not stand, at least not just yet. the difficulty of want of clarity will persist for example in seeking to relate proper law considerations to non-pecuniary (therefore, non-self-executing) restitution86, especially where the place of enforcement of the award (thus, the rules of the restitutional system which obtains there) in such cases is not identifiable when the res judicata award is to be made: e.g., where the place is outside the territorial reach of article 25 of the brussels convention which provides for cross-enforceability of judicial orders among the member states. the facts in hand indicate scotland or england as tile place of enforcement in the present case, wherein it is difficult to justify the grant of a restitutionary remedy of english law (e.g., recovery of money paid, as in exal/ v partridge8\ qua a possible proper law of the restitutionary obligation. the simple reason is that the action of payment was brougllt within scots procedural rules for a restitutionary remedy available in the fonun. the forum law which alone may vindicate the right (in the case being discussed, it cannot because tlle claim is extinguished by prescription, as was mentioned earlier), rather than the english law which, for the reasons given, may assist the establishment of that right, ill-fits tile description, as was mentioned earlier), not unless the error identified by bennett, of "[treating] all enrichment actions as matters of remedy rather than right, or procedure rather than substance"88 is taken to be good law. it is submitted that, as a general but fixed rule, it has not been so taken. batthyany v wa!forcf9, a case concerning rigl1tsrunning with real property located in austria (thus, subject to the law of the situs) is authority that the characterization of the cause of action is to be detennined by the forum, not necessarily applying its own domestic law categories. the remedy in that case was the forum's restitutionary remedy of account, and it was awarded after the application of austrian law to the 86 e.g., restitutionary remedies in rem (cf the discussion of these remedies by a. burrows essays in the law of restitution (oxford: clarendon, ] 993», pp. 28 et seq. 87 (1799) 8 t.r. 308; cf kleillwort benson ltd v gla.sgowcc, ~7jpra,note 63. 88 "choice of law rules in claims of unjust enrichment" 39 i.c.l.q. 136 (1990), at p. ]44. 89 (i 887) 36 ch. d. 269, especially at pp. 278-279 and 28]. the decision has since been followed, e.g., in bp exploration (libya) ltd. v hunt (no.2) [1979] ] w.l.r. 783, at pp. 838835 (affirmed [1981] i w.l.r. 232) and in the chase manhattan bank case, supra, note 46. 109 the denning law journal cause of action, based on the deterioration of the property, in quasi-contract or implied contract. without putting too fine a point on it, lord penrose eliminated the apparent bearing of english law in barings, conveniently applied forum law of jurisdiction and relief as was consistent with his ruling in morgan and the unifonn resolution of the other similar fact cases. his judgment ostensibly accommodates considerations of propriety in the briggsian sense, and thus presents a blueprint of the quintessence of objective localization: the forum of adjudication is capable of enforcing nonforum rights without necessarily taking the lex causae to be its own law, nor becoming the forum of the legal system to which that law belongs. the remedy of payment would therefore support the entitlement to disgorgement under english law. alas, the claim was barred by prescription. but this must be seen for what it is: a different misapprehension, of the pursuers', as to actionability, rather than a fallibility in the reasoning that would have applied to the facts if the prescription had been adverted to. conclusion. in so far as national jurisdictions will be inter-connected only by the rules to which the jurisdictions themselves subscribe, the attractions of the underlying judicial or forum policy of objectivity through the canon of the most significantly related legal system will continue to hold constructive sway. however, it is a misapprehension of the real pragmatic issues if the furtherance of the same policy were prematurely to be submitted to the type of terminology discussed herein. it is a great deal closer to the mark to identify the distinct possibility of the applicable remedial law being comprised of a non-forum lex causae for the availability of the particular relief. it happens that this is the case in which contract conflicts remedies are now to be judicially administered, and even then the reference is to the contractual lex causae or proper law, rather than to the proper law of the remedy; "proper remedies", perhaps, in the absence of distinctive procedures for conflicts cases. above all, conceptually speaking, remedies and the proper law are best kept separate, even though they may clearly be inter-dependent in particular cases. \10 "lord slynn had been connected with buckingham for some considerable time and his wife taught french here for many years lord slynn of hadley 1930-2009 lord slynn had been connected with buckingham for some considerable time and his wife taught french here for many years. he was the chairman of our advisory board for the denning law journal and was awarded an honorary degree in 1982. lord slynn was a champion of human rights and liberty. he led the legal campaign for the iranian resistance which eventually led to the removal of the people's mojahedin organization of iran (pmoi / mek) from the british and eu blacklists. the denning law journal in 2008 published an article on proscription orders by the chair of the bar human rights group in which lord slynn's contribution was noted in some detail. he was a staunch believer that the law should not intervene in matters of morality and thus dissented in the house of lords in the case of brown, a case of considerable interest to students of criminal law as it raised the issue of whether consent could be a defence to assault in the course of sexual matters. lord slynn generously hosted the relaunch of the denning law journal in 2006 at the house of lords. he was a man of great warmth and charm and was greatly loved by his wife, odile, and all his family and friends. lord slynn is pictured with the editor of the denning law journal, susan edwards and the publisher, christopher woodhead at the party to celebrate the re-launch of the journal at the house of lords in february 2007 lord slynn of hadley two kinds of justice: human and devine the denning law journal 35 the denning law journal 2008 vol 20 pp 35-53 who – whom? unresolved issues in judicial review inaugural lecture at the university of buckingham may 29th 2007 michael j beloff qc∗ introduction it is a great pleasure for me to lecture at the university of buckingham, of which my late father lord beloff was the founding father, and my son rupert obtained first class honours in law and won the palamountain prize for excellence. it seems that as a mere visiting professor i take third place in my family’s quest for this innovative university’s honours. this is, of course, an inaugural lecture and i express the modest hope that it will sufficiently command your attention to guarantee that it will not be a valedictory one as well. my duties as visiting professor are to give a minimum of a single lecture over four terms – not the most testing of obligations but one more demanding than that of an oxford professor who, when asked what he did to earn his stipend, explained “i give an annual lecture – but not, you understand, every year”. i have chosen as the opening words of my title that famous phrase of lenin, the bolshevik dictator, in which he summarised his world view “who – whom?” – which people have power over which other people – adapting it to judicial review of which lenin was of course wholly ignorant and of which he would certainly have disapproved. it was not the function of courts in lenin’s eyes to restrict public authorities’ exercise of powers, but rather to ensure that any challenge to that exercise was firmly suppressed. but i want to exploit the phrase to discuss the questions of who is entitled to bring a claim for judicial review and against which bodies – questions which, three decades on from the creation of the judicial review machinery admit still of no final answer, although there is, as i shall demonstrate, far more certainty about the ‘who’ than the ‘whom.’ i should add that, to my chagrin, i discovered that the same two words introduced an essay i wrote in a book in honour of lord slynn,1 a most ∗ the hon michael j beloff, blackstone chambers, ma (oxon). 1 “judicial review in international perspective” in m andenas and d fairgrieve (eds) liber amicorum in honour of lord slynn of hadley (kluwer law international, 2000). who? whom? 36 distinguished advocate and judge who has close connections with this university not least through his wife odile, who taught here. it is not, i suppose, a serious academic crime to plagiarise oneself, but i shall try as far as possible, to ensure that these words are the least original part of my lecture, and to avoid the reproach that my text is too technical for the non-lawyers while too general for the lawyers. i have deliberately chosen as my starting point 1977, when the rules of the supreme court (“rsc”), were amended, so as to provide for judicial review in order 53. the rules reached their present incarnation in the civil procedure rules of 1997 (“cpr”), not entirely helpfully renumbered 54. the order has been, i remind you, cautiously fortified by the supreme court act 1981 (“sca”) in order to avert to the possibility that some imaginative person might challenge the legality of reforming procedural law is so significant, a way by mere secondary legislation using, presumably and paradoxically, judicial review itself. the who rules as to locus standi in public law divide persons into two categories: those who have access to the courts to challenge decisions of public authorities and those who do not. prior to the 1977 reforms the interests required to bring proceedings to challenge administrative action resembled patchwork quilt, rather than a seamless robe. there was then more certainty about the “whom” than about the “who”. different interests were required for different remedies: declarations and injunctions could be sought against public bodies, but were only available in private law actions by way of writ or originating summons by persons whose own rights were in issue. the grant of the order prerogative remedies, in form sought on the queen’s behalf, if in substance on behalf of the subject, was conditioned by more flexible but more variable criteria.2 the complex and incoherent mélange of rules was one of the best reasons for reform of the procedures of public law.3 in o’reilly v mackman4 lord diplock was able to say: “order 53 since 1977 has provided a procedure by which every type of remedy for infringement of the rights of individuals that are entitled to protection in public law can be obtained in one and the same proceeding by way of a n application for judicial review, and 2 see generally h w r wade and c f forsyth administrative law (oxford: oxford university press, 9th edn, 2004) (“wade”) pp 681-690. 3 ibid pp 697-708. 4 [1983] 2 ac 237. the denning law journal 37 whichever remedy is found to be the most appropriate in the light of what has emerged upon the hearing of the application, can be granted to him.”5 under the new system there was a single test of locus. order 53 r 3 provided simply “the court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates”. the phrase “sufficient interest” was selected by the rules committee as to embrace all putative applicants but simultaneously to discriminate between them. although lord scarman suggested, in the so-called fleet street casuals6 case, that the language of the legal instrument “presents no problem of construction”, in fact neither statute nor rule gives any guidance as to what is “sufficient interest” in the matter to which the application relates”; they stipulate only that sufficiency of interest is a sine qua non for entitlement to a full hearing. there were nonetheless two obvious implications of the language chosen: firstly, not everyone could engage judicial review, however meritorious the claim. secondly, interest entitling one to do so had to be sufficient – a fluid and fact sensitive concept. but almost immediately its content was diluted. in the same fleet street casuals case, a group of tax payers challenged tax amnesty given to rogue printers. despite the phraseology of the order 53 (which expressly addresses the leave stage), the house of lords held that, except in obvious cases, questions sufficient interest ought not to be dealt with at that stage when one side only was present but postponed until the full hearing of the application when both were.7 this judicial gloss provides an important safeguard against the adoption of too restrictive an approach to standing: it brings the substance of the challenge firmly into play. although locus was held to go to jurisdiction ie could not be conceded,8 it is now very rare to find a case in which the applicant failed on locus grounds. 5 ibid, at 283. 6 r v inland revenue commissioner, ex p federation of the self-employed [1982] ac 617. commented on by p cane “standing legality and the unity of public law” [1981] pl 322. 7 r v mmc, ex p argyll group [1986] 1 wlr 763, lord donaldson mr said at 773 “the first stage test which applies on an application for leave will lead to refusal if the applicant has no interest whatsoever and the applicant’s interest is one of the facts to be weighed in the balance.” 8 r v secretary of state for social services, ex p child poverty action group (1990) 2 qb 540 at 556 d-g. woolf lj said: “the question of locus standi goes to the who? whom? 38 in the rose theatre case9 schiemann j held that an ad hoc group had no locus to challenge the secretary of state’s refusal to schedule the theatre as an ancient monument.10 he dismissed the argument that persons who combine together for a particular cause have more claim on the court’s time than solitary crusaders, but in my submission, counter-intuitively since the very aggregation underscores the genuineness of the interest. schiemann j was the king canute of judicial review, battling against an irreversible tide – although he defended himself against his critics in an academic journal – an unusual; weapon of last resort for a serving judge.11 in judicial review, the factors which the court now takes into account in deciding whether an applicant has standing are: (i) the merits of the application; (ii) the importance of maintaining the rule of law; (iii) the importance of the issue raised; (iv) the likely absence of any other responsible challenger; (v) the nature of the breach of duty against which relief is sought; and (vi) the expertise and experience of the applicant body. in greenpeace no 212 where the environmental pressure group challenged authorisations given for the discharge of radioactive waste, otton j said:13 “it seems to me that if i were to deny standing to greenpeace, those it represents might not have an effective way to bring the issues before the court. there would have to be an application either by an individual employee of bnfl or a near neighbour. in this case it is unlikely that either would be able to command the expertise which is at the disposal of greenpeace. consequently, a less well-informed challenge might be mounted which would stretch unnecessarily the court’s resources and which would not afford the court the assistance it requires in order to do justice between the parties. further, if the unsuccessful applicant had the benefit of legal aid it might leave the jurisdiction of the court and therefore … the parties are not entitled to confer jurisdiction, which the court does not have, on the court by consent.” 9 r v secretary of state for the environment, ex p rose theatre trust co [1990] qb 504. 10 p cane “statutes, standing and representation” [1990] pl 307, especially at 310311. 11 sir konrad schiemann “locus standi” [1990] pl 342. 12 r v inspectorate of pollution and another, ex p greenpeace ltd (no2) [1994] 4 all er 329. 13 ibid, at 350. the denning law journal 39 respondents and bnfl without an effective remedy in costs. alternatively, the individual (or greenpeace) might see, to persuade her majesty’s attorney general to commence a relator action which (as a matter of policy or practice) he may be reluctant to undertake against a government department. neither of these courses of action would have the advantage of an application by greenpeace, who, with its particular experience in environmental matters, its access to experts in the relevant realms of science and technology (not to mention the law), is able to mount a carefully selected, focused, relevant and wellargued challenge.”14 in accordance with this generous approach, the courts have entertained applications brought by bodies such as the joint council for the welfare of immigrants,15 the child poverty action group,16 the world development movement,17 the equal opportunities commission18 and shelter.19 this migration of pressure groups from the political to the legal arena has been assisted by the development of protective cost orders to assist those with virtuous motives but without adequate funds to immunise themselves against a potential liability to meet the other side’s costs in accordance with the underlying principle of english law that loser pays. in r (corner house) v trade and industry secretary (ca),20 where a pressure group sought to challenge ecgd’s anti-corruption guidelines, the court of appeal said: “(1) a protective costs order may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that: (i) the issues raised are of general public importance; (ii) the public interest requires that those issues should be resolved; (iii) the applicant has no private interest in the outcome of 14 i (boastfully) declare an interest in the penultimate observation since i was greenpeace’s advocate. 15 r v secretary of state for social security, ex p joint council for the welfare of immigrants [1997] 1 wlr 275. 16 r v secretary of state for social services, ex p child poverty action group [1990] 2 qb 540. 17 r v secretary of state for foreign and commonwealth affairs, ex p the world development movement [1995] 1 wlr 586. 18 r v secretary of state for employment, ex p equal opportunities commission [1995] ac 1. 19 r v secretary of state for the environment, ex p shelter [1997] cod 49. 20 regina (corner house research) v secretary of state for trade and industry, ca, [2005] ewca civ 192 [2005] 1 wlr 2600. who? whom? 40 the case; (iv) having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved, it is fair and just to make the order; and (v) if the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing. (2) if those acting for the applicant are doing so pro bono this will be likely to enhance the merits of the application for a pco. (3) it is for the court, in its discretion, to decide whether it is fair and just to make the order in the light of the considerations set out above.”21 the principled explanation for this relaxed judicial attitude lies in the very nature of public law. sedley j has famously stated: “public law is not at base about rights, even though abuses of power may and often do invade private rights; it is about wrongs – that is to say misuses of public power, and the courts have always been alive to the fact that a person or organisation with no particular stake in the issue or the outcome may, without any sense being a mere meddler, wish and be well placed to call the attention of the court to an apparent misuse of power.”22 so if locus is denied at all it is only usually denied when a claim is brought by someone whose interest is remote in tandem with someone with a more direct interest: the num but not the tuc could represent one of its members on a welfare issue.23 the british herpetological society but not the world wildlife fund on an environmental one.24 it is no doubt rightly suspected by the court that the party denied locus was more concerned with publicity than with remedy. on the other hand, despite the doubts of forbes j at first instance both a local reporter and the nuj had standing to challenge a magistrate’s court decision to hold in private the committal hearing of persons charged with gun running.25 21 at para 74. 22 in r v somerset county council and arc southern ltd, ex p dixon (1992) cod 323. 23 r v cao ex p bland times 6 february 1985. 24 r v poole bc ex p beebie [1991] cod 264. 25 r v horsham jj, ex p farquarson [1982] qb 762. i was instructed for the nuj by harriet harman. tempora mutantur … the denning law journal 41 the individual busybody denied standing is an almost extinct beast: one such was the church of england priest who sought to challenge the ordination of women priests – but (unwisely) in wales!26 a curious (and it may be temporary) difference between english and scottish approach in this area was illustrated when former world heavyweight champion, mike tyson, despite a conviction for rape, was permitted to come to glasgow to wreak violence on some unfortunate british pugilist whose chances of success were accurately measured by the business man who brought advertising space on the soles of the boxer’s boots. two feminist groups, justice for women, south of the border, and the rape crisis centre north of it, sought unavailingly to quash the home secretary’s decision. in london no locus point was taken.27 in scotland it was.28 lord clarke said: “some legislation and its related measures will, no doubt, confer a right of challenge on individual members of the public as a whole, but it is a fallacy to suppose that because of the public interest in ministers acting lawfully and fairly that public interest by itself confer on every member of the public a right to challenge the minister’s act or decision. matters must go further, in my judgment, and the individual or body seeking to challenge the minister’s act or decision must show that, having regard to the scope or purpose of the legislation or measures under which the act is performed or the decision is made, he or they have had such a right conferred on them by law, either expressly or impliedly.”29 of this viewpoint lord hope said in a lecture: “ an approach to standing which applies a private law test to issues of public law is at risk of being out of touch with the public interest in 26 r v dean and chapter of st paul’s cathedral (1998 cod 130). in r v legal aid board, ex p bateman [1992] 1 wlr 711, a client who sought further legal aid in order to pay her solicitor has held not to have sufficient interest to challenge the decision of the board for refusing it – a not altogether obvious conclusion. 27 r v secretary of state for the home department, ex p bindel [2001] imm ar 1 (qbd). 28 rape crisis centre co v secretary of state for the home department 2001 slt 389 (oh). 29 ibid, at 391. who? whom? 42 having matters of that kind, about which a section of the public has a genuine grievance, litigated in the courts.”30 a new problem has been introduced in consequence of the standing test under the human rights act 1998 (“hra”) entirely distinct from the sufficient interest test of the sca. section 7(3) of the hra provides that an applicant for judicial review is to be taken to have a sufficient interest in relation to the alleged unlawful act only if he is, or would be, a “victim of that act”. section 7(6) imports into english law that test, as it is applied by the european court of human rights. the basic principle which has emerged in strasbourg jurisprudence is that a petitioner may claim to be a victim only if he is personally affected by the act or omission which is at issue. although the court has given an elastic meaning to that concept including within it potential victims.31 indirect victims32 representatives of victims33 and even possible victims ie persons who cannot know whether they have been the victim of a breach or not because their complaint relates to secret measures.34 and even future victims,35 there remains a perceptible gulf between the two tests. the consequence of this precise translation of the strasbourg test into domestic law is that some claims may not be brought under the hra which might be brought under the common law of human rights. a pressure group might well want to test the validity of certain regulations laid before parliament, but not yet in effect, and ex hypothesi incapable at the time of the proposed challenge of having created a class of victims, even though the same benefits to the court as were recognised by otton j in greenpeace no.2 would be present here as well.36 the solution would be to amalgamate the hra with the sca test albeit with the consequence of disturbing the symmetry of the tests applied in strasbourg and the strand. 30 lord hope of craighead “mike tyson comes to glasgow” [2001] pl 294. 31 campbell and cosans 4 ehrr 293. 32 open door counselling ltd v ireland (a/246) (application nos.14234/88, 14253/88) european court of human rights, october 29th 1992, (1993) 15 ehrr 244. 33 abdulaziz, cabales,and balkandali v uk 1985 7 ehrr 471, where i appeared for the applicants against peter rawlinson qc former attorney-general. 34 klass v germany (a/28) european court of human rights, 6 september 1978, (1979-80) 2 ehrr 214. 35 vilvarajah v united kingdom (a/215) european court of human rights october 30th 1991 (1992) 14 ehrr 248. 36 see too carnwath j in r v secretary of state for the environment ex p shelter [1997] cod 49. the denning law journal 43 one mitigating factor of more general importance is the capacity of third parties to intervene in judicial review proceedings. judicial review is essentially multilateral, not bilateral because of its public interest dimension. under the 1977 rules [053 9r (1)] potentially interested persons had to be served once leave was given: and there was provision for others to apply to be joined to oppose the application. under the cpr 57.17 that provision is extended to potential supporters as well. interventions by third parties have increased dramatically in england and wales over the last five years, especially at the level of the house of lords.37 of equal note has been the shift in the character of interveners: from invitees of the court, to applicants to the court; from official or statutory authorities (like the eoc), to pressure groups (like liberty on justice), commercial organisations or professional bodies. in matthews v ministry of defence38 hale l j identified three categories of case potentially engaging such intervention; cases which raises wider policy issues on which the court needs a fuller range of information: cases in which a third party has a direct interest in the outcome; cases in which a third party has an indirect interest in the outcome of a decision on a point of law, as that decision may be determinative of their own case. not all commentators regard this development of third party intervention with unalloyed enthusiasm. some question the extent to which the pressure groups are representative of their members.39 others detect a lack of consistent principle in the basis for permitting interventions: and question the value to the courts of an avowedly partisan approach in contrast to the neural assistance provided by the old style amicus curia or, in one of the clumsy neologians consequent upon lord woolf’s expulsion of latin from the language of the law, an advocate of the court.40 but the judiciary are even more involved in issues with a political dimension – appointments of junior doctors, restrictions on casino gambling, the scope of the inquests into the death of diana princess of wales and dodi al fayed, the propriety of ceasing the investigation into alleged corruption in 37 see the house of lords practice directions and standing orders applicable to civil appeals, house of lords (january 1996) direction 34 1 see also khan (sultan) [1997] ac 558; r v secretary of state for the home department, ex p venables, r v secretary of state for the home department, ex p thompson [1998] ac 407; r v bow street stipendiary magistrate, ex p pinochet ugarte [2000] ac 61; r v immigration appeal tribunal, ex p shah [1999] 2 ac 629. see generally louis blom-cooper qc “third party intervention and judicial discretion” [2002] pl 602 (“blom-cooper”) sarah hannett “third party intervention in the public interest” [2003] pl 128. 38 ca april 10th 2000. 39 c harlow “public law and popular justice” (2002) modern law review 1. 40 blom-cooper, above n 37. who? whom? 44 the sale of arms to saudi arabia.41 in this venture they are part volunteer – for the ever expanding reach of column law judicial review is their own responsibility – part conscript in as much as the hra compels them to assess in areas such as freedom of expression or right to respect for private life what “is necessary in a democratic society” to achieve such identified public interest aims as national security. in my view, to put it colloquially, they need all the help they can get. we may not yet be accustomed to so-called brandeis briefs in this country,42 in which the social and economic impact of a decision one way or another is placed before the supreme court, but if as alexander pope said: “a little knowledge is a dangerous thing”, an absence of knowledge is simply worse. judges can sift the chaff from the wheat. that after all is what they are paid for. the rules as to standing represent a balance between two aspects of the public interest – the desirability of encouraging individual citizens to participate actively in enforcing the law on the one hand, but on the other hand the undesirability of allowing the meddlesome interloper to invoke the jurisdiction of the courts in matters in which he is not concerned with all the concomitant waste of time and money. in my view, the scales tilt firmly in the favour of the first of those interest lord diplock stated more than a quarter of a century ago in the fleet street casuals case: “it would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a simple public spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to indicate the rule of law and get the unlawful action stopped.”43 with all the reservations i have not infrequently expressed about the danger of the courts rushing into areas where they should sensibly fear to tread, i consider the rules as to standing are obsolete. public law, like private law, has other mechanisms to prevent abuse of its process including but not limited to costs sanctions. 41 to take a random selection from blackstone chambers’ recent caseload. 42 andrew henderson “brandeis briefs and proof of legislative, facts in proceedings under the human rights act 1998” [1998] pl 563. 43 above n 6, at 644 e. the denning law journal 45 the whom? i turn to the other part of the who whom? formula. prior to the 1977 reforms the test for the whom was one of source. if the power under challenge was the product of statute or secondary legislation the old orders ran. powers under the prerogative were embraced within the fold in a case concerning the extra statutory criminal injuries compensation scheme where lord parker cj said “the exact limits of the ancient remedy by way of certiorari have never been and ought not to be specifically defined.”44 and blessed in the so-called gchq case.45 this started a switch in emphasis from source to function, which was confirmed in the famous case involving the take-over panel.46 but whatever the virtues of the new test, certainty is not one of them. that there are boundaries is clear: where they start and when they end is not. bodies whose only source of power is contractual are beyond the pale: some public ingredient is critical. the various cases show only that the courts deploy a series of open textured phrases to describe that ingredient. in datafin, “public element,”47 as well as “public law functions”,48 in r v chief rabbi ex p wachman49 “public law consequences”,50 in poplar housing association v donoghue,51 “public stamp or character”, in rc heather v leonard cheshire foundation,52 “public flavour.”53 this variety of phrases, focussing on the epithet public, conceals a variety of criteria: what is the source of the body’s power? what are the body’s functions? what is the nature of those functions? if the body not exist, would parliament be obliged to create something similar? has it a requisite degree of statutory recognition or underpinning to stamp it as a public body? the sca section [31[2]] was, for its part, opaque speaking only of the need for “having regard to the nature of the matter in respect of which rule of many be granted” by the prerogative orders and the nature of the person “bodies against who such relief might be granted.” the duality of test at least confirmed that amenability to judicial review depends not only on the character of the body against when such relief is sought, but on the powers 44 r v criminal injuries compensation board, ex p lain [1987] 2 qb 864 at 882. 45 council of the civil service unions v minster for the civil service [1985] ac 374. 46 r v takeover panel, ex p datafin [1987] qb 815. 47 ibid, per sir john donaldson mr at 838. 48 ibid, per lloyd lj at 847. 49 [1992] 1 wlr 1036. 50 ibid, per simon brown at 1042c. 51 [2002] qb 48 (“poplar”). 52 [2002] 2 all er 934 (“lcf”). 53 ibid, per lord woolf mr at para 14. who? whom? 46 being exercised by it. this is emphasised in cpr part 54(1) (2) which provides, in material part, that a claim for judicial review means a claim to review the lawfulness of “(ii) a decision, action or failure to act in relation to the exercise of a public function.” the fact that a body has been created by exercise of prerogative power or those powers and purposes are provided for by statute is no longer dispositive. the jockey club shared the first feature, but was held not to be amenable to judicial review.54 limited liability companies shares the second feature but are considered as private bodies. as wade states “statutory status without the public element is not by itself conclusive. statutory powers and duties are possessed by many bodies, for example, commercial companies and trustees, which having no public element are quite outside the range of judicial review.” 55 it is, in consequence. it is unsurprising that the law reports are littered with cases essentially about classification.56 judicial review has been applied to the decisions of the advertising standard authority,57 the code of practice committee of the british pharmaceutical society;58 the gmc59 and the institute of chartered accountants,60 but not the fa61 or abta;62 the local government ombudsman,63 but not the insurance ombudsman;64 to the lme,65 but not lloyds of london;66 to maintained schools,67 but not public schools68 – (the public element is rightly regarded as linguistic camouflage). there is still no definitive ruling on whether the bbc is judicially reviewable – maybe 54 r v jockey club, ex p aga khan [1993] 1 wlr 909. 55 d pannick qc “who is subject to judicial review and in respect of what” [1992] pl 1. 56 r v london metal exchange ltd, ex p albatros warehousing bv, qbd, march 30th 2000, case no: co/2470/98; r v the london metal exchange ex parte hoogewerff reserve ltd partnership (proceedings), november 11th 1999, case no: co/3538/98. 57 see; r v ncb, ex p num (1986) icr 791 compare; r v british coal corpn, ex p vardy 1993 icr 720). 58 r v aja, ex p insurance service plc [1990] 2 admin lr 77. 59 r v code of practice committee of the british pharmaceutical society 1991 cod 228. 60 r v general medical council, ex p gee 1986 1 wlr 237. 61 r v institute of chartered accountants, ex p brindle [1994] bclc 297. 62 r v football association ltd, ex p football league ltd 1993 2 all er 833. 63 r v association of british travel agents, ex p sunspell ltd [2001] acd 16. 64 r v local commissioner for administration, ex p eastleigh bc [1988 ] qb 855. 65 r v insurance ombudsman, ex p aegon life insurance ltd [1994] cod 426. 66 r v corporation of lloyds, ex p briggs [1983] 1 lloyds rep 176. 67 r v london borough of newham, ex p x [1995] elr 303. 68 r v fernhill manor school, ex p brown [1982] s admin lr 159. the denning law journal 47 because of an instructive dislike of the concept of a state broadcasting body,69 and even where charities, whose very status is impregnated with concepts of public interest stand is still unclear.70 the university of buckingham is, i would suggest, immune from judicial review, but the university of thames valley established under the further and higher education act 1992 is not,71 and as for the universities of oxford and cambridge who knows? not even sir william wade who adorned both universities.72 there are yet further complications: there is a distinctive eurotest for bodies against which community directives are directly effective in the sense of being enforceable at the suit of individuals. it is whether the body is an “emanation of state”. this was shown by the marshall case73 where the ecj upheld the complaint of discrimination of a woman employed by the health authority, who was compulsorily retired at 60, whereas her male colleagues could soldier on until 65. i argued the case for mrs marshall, but, having now reached the age of 65 myself, wonder which sex was actually the victim of discrimination. the notion of “an emanation of state” has been criticised as “inappropriate and undefined.”74 the concept of an “emanation” has an almost spectral penumbra; and, as wade says “drawing a line around the state in this way produces obvious anomalies, for example, as between employees of government agencies and employees of private companies.”75 a yet third test has been provided by the section 6 of the hra 1998 states (so far as material): “(1)it is unlawful for a public authority to act in a way which is incompatible with a convention right. (3)in this section 'public authority' includes 69 r (on the application of prolife alliance) v bbc [2003] ukhl 23; [2004] 1 ac 185: the point may have been conceded by silence. 70 see the contradictory views of eminent chancery judges in cases concerned with the royal society for the prevention of cruelty to animals v (1) hm attorney-general (2) richard hannay meade (3) nigel baron vinson of roddam dene (4) gillian rosemary atkinson (2001) ch d 26/1/2001 [2002] 1 wlr 448: times february 13th 2001 (lightman j) and the national trust. (scott v national trust: [1998] 1 wlr 226 (robert walker j). 71 and see discussion in hyams: law of education p 590. 72 wade p 636. 73 [1986] qb 401. 74aston cantlow and wilmcote with billesley parochial church council v wallbank [2004] 1 ac 546 (“aston cantlow”), (“aston cantlow”), per lord hope at para 55. 75 wade p 203. who? whom? 48 (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature, (5) in relation to a particular act, a person is not a public authority by virtue only of subsection (3) (b) if the nature of the act is private.” the hra distinguishes between ‘core’ public authorities (section 6(1)) and ‘hybrid public’ authorities (section 6(3) (b) and section 6(5)). in relation to the former all their acts engage the hra; in relation to the latter not if the nature of the acts is private. there is a structural affinity between the hra to the cpr test in focussing attention on both the nature of the body and the nature of the act, but not an identity, since the nature of the act will always be the key test in ordinary judicial review whereas, for core public authorities under the hra it will not be. unfortunately the first case to reach the house of lords on the meaning of public authority, aston cantlow,76 concerned a peculiar relic of canon law – the liability to repair the channel of the parish church owed to the parochial church council by owners of former glebe land in their capacity lay rectors of a parish. it is a legal cliché that hard cases make bad law, but it is equally true that odd cases make uneven law. the court of appeal held that the pcc was a public authority enforcing a tax to which infringed property rights protected by article 1 of the first protocol in the convention. bought in to defend that decision in the house of lords, i had my doubts – which proved in the event to be well founded. the house of lords held that the pcc was neither a core nor a hybrid public authority. a core public authority was defined as “essentially a body whose nature is governmental in the broad sense of that expression”. it is in respect of organisations of this nature that the government is answerable under the european convention on human rights,77 classic example of a “core” public authority being a government department.78 ordinarily ‘crown’ can be equated with government. in mersey docks and harbour board v cameron79 the crown was held to extend to, inter alios, persons who were carrying out public purposes required and created by the government for the purposes of government. included in the catalogue of crown bodies have been a county territorial association.80 the wartime 76 above n 74, per lord hope at para 55. 77 lord nicholls of birkenhead para 7, per lord hope para 47. 78 ibid per lord nicholls. 79 1865 ii hlc 4432. 80 territorial and auxiliary forces association v nicholls [1949] 1 kb 35. the denning law journal 49 custodian of enemy property;81 a hospital management committee.82 in town investments83 lord diplock said “in exercising the functions of government the civil servants of the crown are all engaged in carrying on a single business on behalf of the crown ie her majesty’s government is the united kingdom”,84 something repeated by lord walker describing the crown “the executive government in its various emanations.”85 a body which is the crown qua government is certainly a public authority; although bodies which are not part of the crown may be. a hybrid public authority defied precise definition lord nicholls said “factors to be taken into account include the extent to which in carrying out the relevant functions, the body is publicly funded, or is exercising statutory powers, or is taking the place of central government or local authorities, or is providing a public service.”86 but as lord hope noted; “it is the function that the person is performing that is determinative of the question whether it is, for the purposes of that (ie each) case a “hybrid public authority.”87 the question as to whether a body engages human rights obligations is one of fact and degree “sensitive to the facts of each case.”88 so diffuse is the case law that the joint committee on human rights89 announced an enquiry into the meaning of “public authority” under the hra because of the “uncertainty” created by judicial decisions. i should now confess that in preparing my lecture i confronted every finalist’s nightmare i.e. the prospect of an imminent potential change in the law by the highest judicial body in the land, the house of lords.90 then pending before the house of lords was the case of yl v birmingham city council and southern cross healthcare ltd91 about whether a private care 81 bank voor handel en scheepwaat v administrator of hungarian property [1954] ac 584. 82 nottingham no1 area hospital management committee v owen [1958] 1 qb 50. 83 town investments v department of the environmental [1978] ac 359. 84 ibid, at 385. 85 deutsche morgan grenfell group plc v inland revenue commissioners house of lords [2006] uk hl 49. 86 aston cantlow: lord nicholls (para 12). 87 ibid lord hope para 41. 88 lord woolf mr poplar, above n 51, at para 66. 89 november 23rd 2006. 90 lord denning, an honorand of this university, often recounted the story of a young student who complained to him about the frequency with which he changed the law on the eve of the examination. being lord denning it was a story he recounted on more than one occasion. 91 [2007] 3 all er 957. who? whom? 50 home providing care and accommodation to service users under a contract with the local authority is subject to the hra, as being: “any person certain of whose functions are functions of a public nature.” the function of a solicitor or barrister giving advice as to merits in the context of contested litigation is one of prophecy as much as of analysis. i therefore stated boldly in my lecture that in my view the appellant would succeed and indeed that, if the house of lords took a more generous approach to the concept of public function, they will, as far as possible amalgamate the triple tests, that of the sca and cpr, that of community law and that of hra, which have hitherto been analysed, at any rate by lord hope of craighead in aston cantlow92 as overlapping but not coincident. i was too bold. i console myself with the thought that the distinguished forensic and judicial careers of the majority (lords scott, mance and neuberger) were mainly in areas outwith public law, and the majority who had greater public law pedigree thought the outcome clear.93 the house of lords by 3-2 rejected the appeal.94 furthermore academic commentary on the decision has been almost uniformly critical,95 but rather than repeating the arguments i advanced orally, i have deleted them from this text and direct readers’ attention to the, as always, luminous speech of lord bingham.96 does any of this matter other than to enthusiasts for procedural taxonomy? 92 above n 74, at paras 34-55 see cf: through: burnton j r (on the application of mullins) v jockey club appeal board (no 1) queen's bench division (administrative court), october 17 2005 th [2005] ewhc 2197 (admin); [2006] acd 2; times october 24th 2005; r. (on the application of mullins) v jockey club appeal board (no.2) queen's bench division (administrative court), october 17th 2005 [2005] ewhc 2517. 93 j landau “functional public authorities after yl” [2007] pl 630; “law lords knock back care home human rights plea. care homes; human rights; local authorities’ powers and duties; public authorities” (2007) 157 nlj (7279) 907; care homes; public authorities; residential care; right to respect for private and family life; statutory interpretation. [2007] 151 (24) sj 782; alder “the status of a residential care home under the human rights act 1998” [2007] 10 jlh 107; m elliott “‘public’and ‘private’: defining the scope of the human rights act” [2007] 66 cambridge law journal 487; and the joint committee on human rights has expressed its disappointment of the outcome. 94 [2007] 3 wlr 112. 95 paul craig “contracting out, the human rights act and the scope of judicial review” (2002) 118 law quarterly review 551. 96 lord bingham at para 2, baroness hale at para 72. the denning law journal 51 there are a number of reasons to suggest that it does not – at any rate too greatly. firstly, there is the demise of the so-called rule in o’reilly v mackman97 this case, designed to segregate the procedures of public from those of private law normally made the judicial review normally obligatory when it was available and spawned a series of cases in which public authorities, where challenges were made to their decisions either by way of private law claims or by raising vires points by way of defence, would contend, even up to the house of lords, so as to avoid any consideration of the merits that the other party was in the wrong forum. it has been slowly eroded to the extent that the exceptions have all but engulfed the rule itself.98 secondly, whereas rsc 053 only allowed for a transfer out of an application for judicial review, which should have been made by way of ordinary action and then subject to various technicalities, the civil procedure rules provide more helpfully for two-way traffic.99 thirdly and most importantly, there has been a cross pollination of private law by public law principles. persons or bodies exercising discretionary powers which, where they were public authorities, would find themselves subject to duties to act lawfully, fairly and rationally, are increasingly held by the courts to be subject to precisely the same obligations. it was always and necessarily the case that private bodies had to act in accordance with the law, but there has been a growing recognition that the rules of natural justice are not ring fenced under the public law sphere: and latterly the notion that the exercise of any discretionary power has to be informed by material considerations and not impaired by immaterial ones has been steadily advanced.100 one area, of growing significance in the legal world as in the world at large, where the issue has been recently been resurrected is in sport.101 the 97 [1983] ac 273. 98 esp steed v home secretary [2000] 1 wlr 1169, clark v university of lincolnshire and humberside [2000] 1 wlr 1988. see generally michael beloff qc “the rule in o’reilly and mackman: a cautionary tale” in v iyer (ed) essays in honours of h m seervai (delhi: universal law publishing co, 2001). 99 cpr 54 [4]. 100 r v east berkshire health authority, ex p walsh (1995) ob 882. equitable life insurance v hyman [2002] 1 ac 585. 101 see generally e grayson sport and law (london: butterworths, 3rd edn, 1999); m beloff, t kerr and m demetriou sports law (oxford: hart publishing, 1999); m beloff “pitch, pool, rink…court? judicial review in the sporting world” [1989] pl 95; colin munro: “sport in the courts” [2005] pl 681. the university of buckingham’s law faculty enjoys special expertise in this field. who? whom? 52 general attitude of the courts to sporting disputes is encapsulated in the dictum of scot baker lj: “it is in my judgment of paramount importance that sporting bodies should be given as free a hand as possible, consistent with the fundamental requirements of fairness, to run their own disciplinary promises without the interference of the courts.”102 but what if there is some blatant unfairness or manifest perversity? the court will interfere even with reluctance applying conventional public law tests, but not yet by public law procedures. in bradley v jockey club,103 the court of appeal, in dismissing an appeal against a penalty as being disproportionate, commended the analysis given by richards j who had said that the court’s supervisory role in a private law claim did not require adoption of a “materially different approach from a judicial review claim.”104 the amenability of national sports regulators to judicial review appears foreclosed short of the house of lords by the decision of r v disciplinary committee of the jockey club, ex p aga khan105 r v football association limited, ex p football league ltd,106 although there have been indications pre-aga khan, that senior judge would have preferred, if free to do so, to follow the judicial review route.107 the most recent attempt to reverse aga khan, r (on the application of mullins) v board of the jockey club 108 failed (it may be predictably) before stanley burnton j (adopting case where a disqualification of a doped horse by an appeal board of a jockey club) even though the plaintiff had had no contractual remedy. 102 flaherty v national greyhound racing club ltd (2006 s&m islr slr 8) at para 79. 103 bradley v jockey club court of appeal (civil division) july 12th 2005 [2005] ewca civ 1056; times, july 14th 2005. 104 bradley v jockey club (application for new ground of appeal) court of appeal (civil division), 28 june 2005 [2005] ewca civ 851 (at [37]), citing in support dicta from lord woolf mr in wilander v tobin [1997] 2 lloyd’s rep 293 at 300. 105 [1993] 1wlr 909. 106 (1993) 2 all er 833. 107 r v jockey club, ex p massingberd munday [1993] 2 all er 2002 (neill and roch lj, r v jockey club, ex p ram racecourses [1993] 2 all er 267 finding themselves bound by an earlier decision of law v national greyhound racing club [1983] 1 wlr 1302) where, in a topsy-turvey application of o’reilly v mackmann, the defendant had the plaintiff’s action dismissed for having instituted proceedings by way of judicial review, not contract. 108 2006 2 slr, slr 30 and n 92 above. the denning law journal 53 but there are powerful arguments the other way based on the datafin functional approach109 and derivative tests: whether, but for the existence of a non-statutory body, government would intervene to regulate, whether government has acquiesced in or encouraged the activities of the body whose decisions is under challenge; whether the body’s power are monopolistic, whether the aggrieved party ahs consensually submitted to be bound by the decision-maker – not whether he has chosen to undertake the regulated activity at all (where he has true freedom), but whether he has actually chosen to be regulated in that activity (where he has none). lord denning mr in his classic dissent110 emphasised by the analogy between public authorities “and domestic bodies which control the destinies of thousands” in suggesting that the same principles should apply to supervision of their decisions. that battle has, as i have already noted, been won: but the conclusion that the same procedures should apply has not at any rate south of the border – or abroad111 although, intriguely but so far unproductively, the court of appeal in aga khan “left open the question whether in other circumstances where there would be no alternative remedy its decisions could be reviewable.”112 the larger question whether the courts can, or should cut through the tangle and recognise the realities of power in societies, free standing of stark connection,113 so as to attract the remedies provided by judicial review, is beyond the reach of this lecture. law is in this elsewhere a battle ground between certainty and flexibility. for my part i consider (cautiously) that procedure should be the sevvant of substance, not its mistress. 109 “why aga khan is wrong” michael beloff qc and tim kerr [1996] judicial review 3. 110 breen v atu (1971) 2 qb 175 at 190. 111 finnigan v new zealand rugby football union inc [1985] 2 nzlr 159; justice v south australian trotting control board (1989) 50 sasr. 613; jockey club of south africa v forbes (1993) (1) sa 648. 112 this may be a case for horse for courses. the jockey club was described by gray j as “a public authority in every sense of that term” in jockey club v buffham [2003] 2 wlr 178 at 195. 113 sir gordon borrie “the regulation of public and private power” [1989] pl 552 and sir harry woolf “judicial review: a possible programme for reform” [1992] pl 221. the role of the judge in judicial inquiries the rt. bon. the lord nolan i was invited to write this article by reference to the comparisons which might be drawn between the inquiry carried out by lord denning into the profumo affair and the inquiries carried out by the committee on standards in public life while i was its chairman. by performing our roles in these inquiries both lord denning and i were taking our places in a long and continuing line of judges of all ranks who have been asked by the government of the day to examine and report upon disputed issues, and our work needs to be seen in that context. as often as not these inquiries have to be carried out as a matter of urgency. more often than not the questions which they raise are the subject of acute political controversy. invariably they attract publicity to an extent with which judges are not normally familiar. for all of these reasons they lie outside the customary, and, some might say, outside the proper role of a judiciary which strives to maintain a calm, measured, detached and, above all, impersonal approach to its work. i shall return to these weighty matters, but let me begin as i mean to go on with an anecdote. shortly after my committee (if i may call it that, for shortness) was set up i was talking to tom about it. as chance would have it the committee had been allocated rooms at the back of the treasury building which had been used by tom himself when he was carrying out the profumo inquiry (the same rooms, by another coincidence, had earlier been used by peter shore, a member of my committee, when he succeeded george brown at the department of economic affairs, in its valiant but doomed attempt to outflank the treasury. if walls could speak, what stories these walls could tell.) tom was principally and quite rightly concerned about the effect which my chairmanship would have upon my work as a law lord. but, he said, "i expect you will be able to do it mostly in the vacation. i did the profumo report mostly in the long vacation." 147 denning la w journal this was true. he started the investigation on 24th june, 1963, and signed his report on 16th september, 1963. that in itself was a remarkable achievement having regard to the scope and complexity of the report, of which i shall say more later. but it was typical of the speed and dedication which tom had displayed throughout his career. i had to break it to him that my committee had been asked to prepare our first report within six months (which we did) but that i expected to have to cut down heavily upon my judicial duties during that period. another respect in which my qualifications for the job bore little comparison with his lay in the fact that at the time of the profumo inquiry he was already a celebrated national figure while i was relatively unknown. this was made perfectly plain to me on a dark october evening just after the announcement of my appointment when i faced a dazzling array of arclights on the whitehall pavement outside the cabinet office. sharply pointed questions were flung at me from shadowy figures behind the lights "why were you chosen as chairman?" (this was precisely the question 1 had been asking myself, and could only suggest that they asked the prime minister) and, even more pointedly, "were you the first choice?" (i have been told that i was, but if others had been offered the post and had refused it 1 thought at the time that they had shown a good deal more sense than 1 did). in tom's case, no-one would have dreamed of asking either of these questions. how had he achieved such a level of celebrity and admiration? i can best answer that from my own experience, for i was one of the postwar generation of law students who grew up in the denning years. 1 read law at oxford under the guidance of that great lawyer and great tutor p. b. carter. knowing his pupils or at any rate this pupil to be lazy and easily bored he urged us to learn our law not just from tutorials and lectures, textbooks and articles in the journals, but from the full reports of the decided cases. for him, denning was a don's delight ajudge whose knowledge of law rivalled that of the academics. i am bound to say that my fellow undergraduates and i found even the law reports to be less than irresistible as reading matter, but these were the years 1949-52 when the doctrine of equitable estoppel was in its robust infancy, generally acclaimed, occasionally deplored, later to be refined by lord denning himself, impossible to overlook by anyone who hoped to satisfy the examiners. high trees house was high on our reading lists. 1 we liked the result, which seemed to us to be fair as between the parties to the case. we liked the simplicity of his language. we admired the erudition with which he brought well established authorities to bear in i central london property trust v. high trees house ltd. [1947] k.b. 130. 148 the role of the judge in judicial inquiries support of his reasoning. his distinctive mode of expressing his thoughts and explaining the facts had yet to develop into the unique denning style with which we all became familiar in later years, of which mr. simon brown, the treasury devil as he then was, observed in his valedictory address on tom's retirement, "sentences were short and verbs optional;" in which the parties concerned in the case were referred to by name, and not under the impersonal and unfeeling descriptions of "the plaintiff," "the defendant," "the third party" and so on. "old peter beswick was a coal merchant in eccles, lancashire. he had no business premises. all he had was a lorry, scales and weights. he used to take the lorry to the yard of the national coal board, where he bagged coal and took it round to his customers in the neighbourhood. his nephew, john joseph beswick, helped him in the business."z who else but tom denning had ever begun a judgment like that? beswick v. beswick came before tom when he was master of the rolls in 1966, (his judgment was, of course, later upheld, though on different grounds, by the house of lords) and although the words which i have quoted are one of the best and most familiar examples of the denning style they are typical of his judgments in less well known cases, both earlier and later. his biographer, iris freeman reminds us that in barclays bank limited v. inland revenue commissioners,3 where lord simonds told the house of lords that "this appeal once more demands your lordships' consideration of section 55 and section 58 of the finance act 1940," denning said: "my lords, tom shipside died on december 15, 1955. the question is whether, during the last five years before his death, he 'had the control of a company called t. shipside limited: for the amount of estate duty depends on it.,,4 in one of the few tax cases in which i had the pleasure of appearing before him, morisis products limited v. commissioners of customs and excise, and which turned on the construction of an extremely obscure section in the purchase tax act 1963 tom began his judgment by saying simply "the question in this case is: what is the purchase tax payable on ice cream, ice lollies and the like?,,5 his direct and uncomplicated approach to the facts of the case before him, in terms which could be readily understood not only by the lawyers but by the parties and by the lay readers of his judgments, has greatly 2 beswick v. beswick [1966] 1 ch. 538 at 549. 3 [1961] a.c. 509. 4 see iris freeman, lord denning (hutchinson, 1993) at p.255. 5 [1969] 3 all e.r. 1096. 149 denning law journal influenced both his own generation and younger generations of judges. of all the contributions which he has made to the development of english law i think that this must rank amongst the highest. the other truly outstanding personal quality which denning brought to his work was his courtesy. i had sensed something of it from the attitude which his judgments displayed towards the parties in the case, treating them as human beings and not merely as characters described in the pleadings, but it was only when i came to the bar and saw him in action that i became fully aware of its importance. it must be remembered in this connection that most of the judges on the bench in my early days at the bar were much tougher, much stricter, much more intolerant of any form of human weakness than their successors have become. i do not criticise them for that. they had grown up in the shadow of two world wars, in one or other of which many of them (like denning himself) had been in action. this country had survived those wars by toughness of character and strictness of discipline. the country expected the judges to counter the crime wave which followed the second world war by firm enforcement of the law and of its penalties, and the judges duly obliged. we of later generations are in their debt for that. but in the interests of justice and fairness and, which is equally important, the public perception of justice and fairness in the courts there was room for a more patient and understanding approach to the anxieties of litigants in civil cases, and, for that matter, to the shortcomings of young and inexperienced counsel, whose inexperience and nervousness might lead them to jeopardise their clients' case. denning was one of the first to accept the need for a more sympathetic approach in these cases, and one of the most successful in giving effect to it. he was particularly good with litigants in person, who often felt a burning sense of injustice and were unable to comprehend why the law, of which they had no knowledge, did not provide a remedy. possibly the homely hampshire accent in which denning addressed them was a help here. it certainly seemed to become more pronounced in these cases. what mattered most, however, was the skill with which he helped them to articulate their grievances, and with which he briefly explained why (as was almost always the case) the law could not assist them. however disappointed they were, i doubt if anyone ever left denning's court without feeling that he had had a fair hearing. that could not be said of some of his brother judges. this courtesy is one of the most remarkable and attractive features of tom's personality. it is a characteristic of his private as of his public life. for many years now my wife and i have taken our two oldest grandsons, tom hume and henry morris down to the lawn once or twice a year at tom's invitation to fish the beautiful stretch of the test which runs through his land. he calls them tom the philosopher, for obvious reasons, and henry the soldier, after 150 the role of the judge in judicial inquiries the profession of henry's father, and takes a great interest in their progress and ambitions. we are always welcomed with every circumstance of hospitality and consideration, but it does not stop there, for when we write our ''thank you" letters we almost invariably receive "thank you" letters from tom in reply although sadly now they have to be written by peter post, his devoted clerk, on his behalf. i suspect that this quality of courtesy and thoughtfulness has helped tom to retain the affection and friendship even of those who were most strongly critical of some of his judgments. i was delighted to see that the fishing book which tom has maintained since he moved to the lawn shows gavin simonds as a regular visitor. his courtesy is not to be confused with weakness, let alone with tolerance of misconduct. no-one could be more eloquent in his denunciation of those whose behaviour falls below his own high standards. by the time when he was asked to investigate the profumo affair, tom had established his reputation with the legal profession and with the public as a man of fairness, of independence, gifted with clarity of thought and clarity of expression, a man with a wide experience and knowledge of the law, and an equally wide experience and knowledge of the strengths and weaknesses of human beings. there was one other qualification which he brought to the task and that was his experience of having carried out a previous inquiry at the request of the government. on that occasion he had been chairman of a committee charged with examining the administration of the divorce law. the committee had been set up in 1946 as a result of the vast increase in the number of divorce petitions consequent upon the war and the intolerable delays which the parties were suffering. the committee's terms of reference were to examine divorce procedures and report: "what procedural reforms ought to be introduced in the general interests of litigants, with special reference to expediting the hearing of suits and reducing costs and to the courts in which such suits ought to proceed; and in particular whether any (and if so, what) machinery should be available for the purpose of attempting a reconciliation between the parties, either before or after proceedings have been commenced." it is to be noted that the committee was not concerned with extending the grounds upon which divorce could be obtained: its primary job was to speed the process by which divorces could be granted under the existing law. its response was prompt, unanimous and simple. in its first report, which was presented to parliament by the lord chancellor in july, 1946, only one month after the committee had been set up, it recommended that 151 denning law journal the period of six months between the decree nisi and the decree absolute should be reduced to six weeks. its second report, presented in november of the same year, recommended that the trial of divorce cases should not be restricted to the high court, but should also be carried out by county court judges sitting as commissioners. its final report, published in february of 1947, less than eight months after its appointment, recommended the setting up of a marriage welfare service to afford help and guidance both before and after marriage. this final recommendation was the closest to denning's heart. it led to the formation ofthe national marriage guidance council, of which denning became the president in 1949, a post which he retained until 1983. it reflected the views of the whole committee who said in their final report: "we have throughout our inquiry had in mind the principle that the preservation of the marriage tie is of the highest importance in the interests of society." it is not surprising that the work of the committee appears to have commanded widespread praise of the contents of its report and of the judge who was its chairman. like many other great judges he had started his judicial life in the probate, divorce and admiralty division (now the family division) where he had spent nearly two years before being transferred to the king's bench division in january, 1946, and so he was familiar with the subject matter of the committee's investigations. the inquiry had no party political implications. it required no substantive changes in the law. it called for a chairman who could guide his colleagues to a conclusion combining principle with pragmatism. above all it called for a rapid solution to be found for a pressing public need. the qualities required for these purposes were perfectly combined in denning the man and denning the judge. in the case of anyone else it would be a matter almost for incredulity, but in the case of denning it seems perfectly natural to record that on 18th july, 1946, when barely a month into the inquiry, he gave his judgment in the high trees house case.6 bearing in mind the calls upon his time i suppose it is just as well though again in anyone else one would find it astonishing that the judgement was given extempore. the profumo inquiry was a very different kettle of fish. it took place, as i have said, in the summer of 1963. by then, denning had completed his switchback ride from high court to court of appeal to house of lords and then back to the court of appeal and had established himself as master of the rolls. although he was not so well known to the public as he became after the profumo report many of his judgments had already attracted the 6 supra n.!. 152 the role of the judge in judicial inquiries headlines. for example, in february of that year, in company with lords justice donovan and danckwerts, he had dismissed the appeals of two journalists, mulholland and foster, against their committal to prison for contempt of court.7 the contempt lay in their refusal to disclose the sources of information which they had published about vassall, a young civil servant at the admiralty who had passed secret documents to the k.g.b. vassall was a homosexual, and it was rumoured, though as it turned out without any justification, that he had had an improper relationship with one of the government ministers at the admiralty. the vassall affair formed part of the background to the crisis of public confidence which led to the setting up of the profumo inquiry. the central facts, it will be remembered, were that john profumo, had had a brief affair with a prostitute called christine keeler in the second half of 1961, when profumo was secretary of state for war. subsequently it emerged that christine keeler was associating with a russian spy at the same time. profumo, when challenged about the matter, made a personal statement in the house of commons denying any improper association with christine keeler. he was unable to maintain the denial, and promptly resigned. the case was attended by all sorts of wild rumours about threats to national security, and about bizarre sexual misconduct in high places. in much the same way as in the summer of 1994, when there was a wave of public unease about sexual and financial scandals in government circles, a crisis arose not only for the government itself but for the maintenance of confidence in the probity of public life. denning's terms of reference were extremely wide. they were: ''to examine, in the light of the circumstances leading to the resignation of the former secretary of state for war, mr. j.d. profumo, the operation of the security service and the adequacy of their co-operation with the police in matters of security, to investigate any information or material which may come to his attention in this connection and to consider any evidence there may be for believing that national security has been, or may be, endangered and to report thereon." the issues were, of course, highly charged politically: the opposition saw the affair as a chance to bring the government down. from everyone's point of view, it was essential that the inquiry should be completed quick! y. possibly this was the reason why the prime minister took the most unusual 7 attorney-general v. mulholland; attorney-general v. foster [1963] q.b. 477. 153 denning law journal step of asking denning to conduct it alone, without the support of a committee. as might have been expected of denning, the requirement for speed was amply satisfied. although he heard about one hundred and sixty witnesses and studied numerous written memoranda he completed the report, as i have mentioned, in less than three months. this time, though, even he could not find time to dash off a revolutionary extempore judgment in the high trees house manner. but the price paid for such speed, and for denning's solitary role, was that he alone had to make crucial findings of fact, and where necessary to apportion blame, without allowing those concerned any of the safeguards which attend a criminal or even a civil trial. he could not adopt the course followed by sir richard scott when performing a somewhat similar role in the arms to iraq inquiry, of giving the parties notice of the adverse findings which he was minded to make against them, and allowing them full scope to defend themselves. from the outset denning was acutely conscious of the difficulties which he faced. when accepting the prime minister's invitation to undertake the inquiry he said: "it is a great responsibility with which you have entrusted me and i feel very apprehensive of my ability to carry it out. all i can say is that i will do my best very faithfully to perform the task.,,8 in the event his report was generally favourable and reassuring about both the security service and the government. anticipating the criticisms that might be made, he introduced the report by explaining his approach to disputed matters of fact in these terms: "when the facts are clear beyond controversy, i will state them as objectively as i can, irrespective of the consequences to individuals: and i will draw any inference that is manifest from those facts. but when the facts are in issue, i must always remember the cardinal principle of justice that no man is to be condemned on suspicion. there must be evidence which proves his guilt before he is pronounced to be so. i will therefore take the facts in his favour rather than do an injustice which is without remedy. for from my findings there is no appeal.,,9 8 see lord denning, the due process of law (butterworths, 1980) at p.68. 9 ibid at p.?!. 154 the role of the judge in judicial inquiries he added: "to those who in consequence will reproach me for 'whitewashing,' i would make this answer: while the public interest demands that the facts should be ascertained as completely as possible, there is a yet higher public interest to be considered, namely the interest of justice to the individual which overrides all other. at any rate, speaking as a judge, i put justice first."10 the report was well received by the public generally. an enormous number of copies was sold. this is, perhaps, hardly surprising because it makes very entertaining reading. but in addition most people were glad to be reassured and to have their confidence in the machinery of government restored. they trusted denning's integrity. no-one could seriously suggest that he would be capable of a "whitewash." such criticisms as have been made of the report are of two kinds. the first was the criticism which denning himself had been at pains to acknowledge and forestall, namely that an inquisitorial procedure, rapidly carried out, ran the risk of causing injustice to those criticised. the second was of the more general nature that whenever the government of the day asks a judge to carry out an inquiry into a politically sensitive subject, it compromises the independence of the judiciary. i would not, for my part, accept this second ground of criticism as a general proposition, still less in relation to the profumo inquiry. plainly the situation demanded an independent inquiry, and who better to carry it out than a senior and respected judge, noted for his independence of mind? no doubt those looking for a stick with which to beat the government were disappointed by his conclusions, but no-one in his right mind could have suspected denning of reaching them in order to lend a hand to a government in trouble. in his landmarks in the law, written twenty years later, tom described the profumo inquiry as his most important case. 1 i i agree with that, and if i may be allowed the comparison, i believe that the inquiry of my committee into the standards of conduct in public life was my most important case. i, too, was subjected to the criticism that i was becoming more closely involved in party political matters than was seemly for a judge. in april, 1996 sir richard scott and i were the joint target of an attack by living marxism under the headline "judges rule the law lords hammer the tories and democracy." i was impressed to see living marxism rushing to the defence of the conservative government precisely similar 10 ibid. 11 (butterworths, 1984) at part thirteen. 155 denning law journal criticisms had come from the extreme right wing but i was not persuaded by the argument. my critics seemed to overlook the fact that i was chairman of a committee which included senior members of each of the three main political parties, and whose reports were all unanimous. neither the government which appointed me, nor the opposition parties which supported my appointment, ever sought to influence me in any way. i found it an enormous help to be able to bring to the post of chairman the standing of a law lord, and my membership of the house of lords provided invaluable access and accessibility to westminster and whitehall, but i never felt that my independence was in any way compromised. nor, i am sure, did sir richard scott. british judges have all sorts of faults, but i really do not believe that susceptibility to political influence is one of them. in some other countries it may take a brave judge to give a decision against the government of the day. in this marvellous country, all that happens if a judge gives a judgment against the government is that he gets rather a good press, and quite possibly promotion. so the danger that i see to the appointment of judges to carry out inquiries is not the loss of judicial independence. the danger that i see is that it exposes the individual judge to a much wider range of attack than that to which judges carrying out their normal role are subject. of course judges are always open to lay as well as to professional criticism if they pass sentences which seem much too lenient or much too severe, or if they make foolish or unnecessarily offensive remarks in the course of trials. that is a criticism of their performance in the job which they are trained and paid to do, and is perfectly proper and healthy in a free society. but a government inquiry may take the judge into perilous and uncharted waters. one has only to consider some of the subjects which judges have been asked to investigate to appreciate the near impossibility of the judge reaching a conclusion which will escape condemnation from one or more of the parties concerned. one thinks of lord widgery and the original "bloody sunday" inquiry, lord wilberforce and miners' pay, lord diplock and lord scarman on the northern irish troubles, lord scarman again on the brixton riots, the late lord taylor and subsequently lord justice st1,1artsmith on the hillsborough tragedy, to name but a few. increasingly, the judge concerned is likely to suffer intrusive examination of his personal life as well as of his public performance. occasionally, the judge's report is rejected by the government. this happened to no lesser figures than lord devlin over his report on the nyasaland riots and lord radcliffe over his report on "d" notices. all or any of these factors may have the effect of damaging, even if only temporarily and unfairly, the reputation of the individual judge and thus reducing public confidence in the judiciary generally. 156 the role of the judge in judicial inquiries it is perhaps also worth mentioning the personal effect upon the judge himself and upon his family of attacks from the public and the media. tom and i were relatively lucky in this respect, because both his inquiry into the profumo affair and my committee's inquiry into standards in public life enjoyed general public support. i have mentioned the type of criticism made of the profumo inquiry (to which might be added lord hailsham's description of it though not of tom's performance as "a ghastly error") but a more measured approach is to be found in the remarks of the salmon royal commission on tribunals and inquiries in 1966 which said: "lord denning's report was generally accepted by the public. but that was only because of lord denning's rare qualities and high reputation. even so, the public acceptance of the report may be regarded as a brilliant exception to what would normally occur when an inquiry is carried out under such conditions." i, for my part, was at various times the target of a wigging from sir harry wiggin, a thunderbolt from the thunderer, a philippic from andrew alexander in the daily mail, and an accusation by sir bernard ingham of supporting the labour party, but i suffered little in the way of personal wounds. but three years of media scrutiny, albeit generally fair and friendly, was more than enough for me. i would fmd it intolerable as a permanent feature of my life. it is also worth mentioning the burden which the appointment of judges to hold such inquiries places upon their colleagues and upon the administration of justice generally. for example, the establishment of law lords was raised from ten to twelve at the time when lord woolf was working on access to justice, and i had taken on my committee chairmanship, but bearing in mind that the house of lords normally sits as two judicial committees of five on each working day the regular absence of two members puts a strain on the remainder, all of whom have outside responsibilities of their own of one sort or another. the position has not improved. lord saville has barely sat in the lords since his appointment, because he has been engaged upon the new "bloody sunday" inquiry, and will remain so engaged for at least another year. lord justice phillips, who is to become a law lord in the place of lord lloyd in january, 1999 is expected to remain wholly committed to his b.s.e. inquiry until next summer at the earliest. such appointments are an expensive use of judicial talent. if overdone as many thought they were overdone in the case of lord radcliffe they may diminish the quality of our judge-made law. and, of course, there is no shortage of distinguished men and women from 157 denning law journal other walks of life who are eminently suited to undertake important inquiries in the public interest. when all that is said, however, there will always be inquiries in which judicial qualities are particularly valuable. in these i have no doubt that her majesty's judges can and will continue to play their part, however distasteful and disagreeable the task may be. at the end of what next in the law lord denning said: "someone must be trusted. let it be the judges.,,12 it is up to the judges to shoulder the burden of that trust. 12 (butterworths, 1982) at p. 330. 158 two kinds of justice: human and devine the denning law journal 111 denning law journal 2008 vol 20 pp 111 131 terrorism, proscription and the right to resist in the age of conflict mark muller qc∗ this paper focuses on the international community’s response to the increased perceived threat of terrorism since 9/11 and how the so-called “war on terror” has affected our understanding of what constitutes terrorism. it briefly details some of the major legislative changes that have been enacted and examines the impact of counter-terror strategies on certain unresolved legal issues that have historically dogged the international community’s efforts to arrive at an internationally agreed definition of terror. this includes the relationship between terrorism and the right to self-determination, the emerging right to democracy, and the existence of a license to use force as a last resort against an oppressive regime. the paper explores how the failure to resolve the relationship between these international legal principles has seriously undermined the efficacy of certain proscription regimes adopted around the world. it examines whether proscription regimes are in danger of disproportionately interfering with certain fundamental freedoms thereby reducing the scope for conflict resolution between aggrieved parties engaged in violence around the world. introduction over the last six years the international community has witnessed a massive increase in both international and domestic legislation concerning terrorism. the catalyst for much of this legislation was of course the tragic events of 9/11 although the process of proscribing so-called terror movements was gathering pace before the attacks by al qaeda. the engine powering this recent legislative onslaught is security council resolution 1373 passed of 28 september 2001.1 this resolution imposed ∗ garden court chambers, london. took silk on 16 october 2006. was previously head of chambers at 10-11 gray's inn square between 1998-2006. currently chair of the bar human rights committee (bhrc), chair of the kurdish human rights project (khrp), a founding trustee of the delfina foundation dedicated to east/west reconcilation through arts and culture, and a patron of the zimbabwe defence and aid fund. 1 press release sc/7158 – security council unanimously adopts wide – ranging anti terrorism resolution calls for suppressing financing, improving international terrorism, proscription and the right to resist in the age of conflict 112 extensive obligations on states to prevent and counter terrorism and established a committee of the security council to monitor its implementation. significantly, the resolution required states to ensure that “terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts,”2 irrespective of whether such acts are caught by ordinary existing criminal provisions. resolution 1373 not only reflected the worldwide revulsion felt about the attack on the twin towers in new york, it also catapulted the issue of terrorism onto the international agenda in a way not seen before. just eight days earlier, on 20 september 2001 president bush set the tone when he declared: “either you are with us, or you are with the terrorists. from this day forward, any nation that continues to harbour or support terrorism will be regarded by the united states as a hostile regime.”3 this declaration had a huge impact on state practice towards countering terrorism. hitherto the lack of any internationally agreed definition of terrorism was legally inconsequential as no international rights or duties hinged on the term “terrorism”. all previous international conventions on terrorism were act specific and did not generically define who was a terrorist and who was not. however, president bush’s clarion call changed all of that for good. it effectively required numerous states to define its position in relation to numerous dissident groups and armed struggles around the world by pressuring states to adopt various proscription regimes. the question today is how has president bush’s so-called “war on terror”, together with the counter measures adopted by various states pursuant to resolution 1373, affected the debate about what constitutes terrorism? are we any forward in achieving an international consensus about what constitutes and what does not constitute terrorism? for example, what is the current status of the right to self-determination and other fundamental freedoms protected by international law in relation to the global fight against terrorism? how has the recent swathe of domestic state anti-terror legislation affected the status of any evolving right to democracy or to resist state oppression through violence as a last resort? what is the legal status of state sponsored terrorism? the answers to these questions will have profound consequences for the global fight against terrorism in the future. cooperation resolution 1373 (2001) also creates committee to monitor implementation www.un.org/news/press/docs/2001/sc7158.doc.htm 2 acting under chapter vii of the charter of the united nations 2 (e). 3 “freedom at war with fear” – address to a joint session of congress and the american people – http://www.whitehouse.gov/news/releases/2001/09/200109208.html the denning law journal 113 the definition of terrorism what is perhaps most revealing about this global fight is that despite the plethora of domestic anti-terror legislation passed by member states since resolution 1373 the international community is still nowhere further in agreeing a definition of “terrorism”. but whereas beforehand the consequence of failing to agree a definition of terrorism was largely academic today it has profound consequences legal, social and political consequences. the inability to define terror has dogged the international community for 60 years. according to kalliopi k koufa, the un special rapporteur on terrorism and human rights, 109 definitions were put forward between 1936 and 1981.4 however, none were universally acceptable. the 1972 ad hoc committee of the un general assembly singularly failed to agree a draft comprehensive convention or a definition of terrorism due to divisions over the status of national liberation movements. the 1996 ad hoc which was established pursuant to general assembly resolution 51/210 attempted to build on a non-binding definition of the assembly contained in its 1994 “declaration on measures to eliminate international terrorism”5 but to also little effect. this failure to agree a comprehensive definition has led instead to the development of specific international conventions dealing with specific acts of terror. thus, since 1963 there have been at least twelve international conventions dealing with aspects of “terrorism” yet none contain an internationally agreed definition. even the most recent 1999 un international convention for the suppression of terrorist bombings6 fails to define “terrorism.” as noted above, such lack of clarity has continued even after 9/11. both un security council resolutions 13687 and 13738 do not define “terrorism”. although 1373 states that any act of international terrorism constitutes a threat to international peace and security and requires member states to combat terrorism by all means, it does not clarify what it means by the term “acts”. as judge gilbert guillaume, former president of the icj, rightly observes: “the international community has not been able to reach an agreement on such a definition of terrorism.”9 such failure has moved, rosalyn higgins, another judge at the international court of justice, to comment that: “terrorism is a 4 working paper k k koufa 26 june 1997. 5 general assembly a/res/51/210 – 17 december 1996 – 88th plenary meeting. 51/210 measures to eliminate international terrorism recalling its resolution 49/60 of december 1994 – http://www.un.org/documents/ga/res/51/a51r210.htm. 6 adopted 9 december 1999. 7 adopted 12 september 2001. 8 adopted 28 september 2001. 9 g guillaume, “terrorism and international law” international and comparative law quarterly (2004), 53:537-548. terrorism, proscription and the right to resist in the age of conflict 114 term without any legal significance. it is merely a convenient way of alluding to activities, which states or individuals widely disapproved of.”10 yet, rosalyn higgins’ dictum is, with respect, out of date given the post 9/11 “legislative environment”. the definition of terrorism may remain a term without legal significance in so far as its construction is uncertain from a strictly legal point of view, but there is nothing uncertain or legally insignificant about its consequences for those deemed to be caught by new state anti-terror legislation. in fact, the continued difficulty of formulating an objective definition of terrorism, and the resulting potential for arbitrary political decisions, was recently considered post 9/11 in the decision of suresh v canada (january 11, 2002).11 the supreme court of canada considered an argument that the term “terrorism” was so subjective in its meaning as to be “void for vagueness”. although the court rejected the challenge, it emphasised the risk of abuse where a legal definition depended on an essentially political judgment: “one searches in vain for an authoritative definition of “terrorism”…[t]here is no single definition that is accepted internationally. the absence of an authoritative definition means that, at least at the margins, ‘the term is open to politicised manipulation, conjecture and polemical interpretation.’…even amongst those who agree on the definition of the term, there is considerable disagreement as to whom the term should be attached…perhaps the most striking example of the politicised nature of the term is that nelson mandela’s african national congress was, during the apartheid era, routinely labelled a terrorist organisation, not only by the south african government but by much of the international community.”12 the court considered that the essence of the term, as internationally understood, was reflected in article 2(1)(b) of the international convention for the suppression of the financing of terrorism (un general assembly resolution 54/109, 9 december 1999). this defines terrorism as any “act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population or to compel a government or an international organisation to do 10 professor bill bowring http://mujahedin-e-khalq.org/mekmko/index.php?option=com_content&task=view&id=29&itemid=31 11 suresh v canada (minister of ctizenship and immigration), [2002] 1 sc r 3, 2002 scc1. 12 para.94 – http://csc.lexum.unmontreal.ca/en/2002/2002scc1.html the denning law journal 115 or abstain from doing any act.”13 in the court’s view, this definition “catches the essence of what the world understands by ‘terrorism’.” the supreme court naturally recognised that it was open to a national parliament to adopt a different or more detailed definition for the purposes of domestic legislation. however, it noted that the broader the definition becomes, the greater is the risk of arbitrary and “manipulated” application. the question is how much does it matter if individual states adopt a broader definition? is the failure to agree an internationally recognised definition really that important? the dangers of outsourcing of the definition of terror to member states many observers believe the failure to agree a definition since 9/11 has produced profoundly dangerous legal effects. this is because security council resolution 1373 has effectively outsourced the definition of terrorism to member states to define “terrorism” domestically without limitation. the hackneyed phrase “one man’s terrorist is another man’s freedom fighter” has been replaced with the dictum “one state’s terrorist is another state’s freedom fighter.” whether a person or group is terrorist in nature is no longer a matter of personal political opinion or of international debate but of national law as defined by the particular law of the state in which one resides. since 2001 the uk, eu and the usa have enacted extensive terror legislation including new definitions of what constitutes “terrorism”. within two months of 9/11 the bush administration rushed through the usa patriot act.14 the uk enacted the crime and security act 2001. while on 13 june 2002 the eu adopted its own framework decision that required member states to take legislative steps to implement its terms. since then australia, belarus, china, egypt, india, israel, jordan, kyrgyzstan, macedonia, malaysia, russia, syria, uzbekistan and zimbabwe have all followed suit. much of this legislation is the proscription regimes introduced. moreover, this legislative frenzy has been conducted within the context of the bush administration’s clarion call. this has led many states to proscribe groups that are an anathema to the united states as a matter of foreign policy. this in turn has had a significant impact on the protection of fundamental freedoms and internationally recognised principles of international law such as the right to self-determination. for example the european union’s attempt to establish a common legal definition of terrorism is also linked to an attempt to abolish extradition 13 article 2(1)(b) of the international convention for the suppression of the financing of terrorism. 14 usa patriot act – march 9 2006 – http://www.whitehouse.gov/infocus/patriotact/ terrorism, proscription and the right to resist in the age of conflict 116 between member states in favour of an expedited procedure. this mirrors the concerted effort on the part of a number of states over the last six years to eliminate the “political offences” exception in relation to “terrorism”, which due to the absence of an internationally agreed definition, is now defined by each state. this has been coupled with measures to exclude “terrorists” from asylum and refugee protection. it is therefore, perhaps unsurprisingly that many states have responded in a way that best suit their interests, and have shown little hesitation in defining terrorism widely and proscribing various organisations without recourse to the international recognised legal norms, including the principle of self-determination. the effect of outsourcing on the principle of selfdetermination the right to self-determination is recognised under customary international law as jus cogens. it is also recognised in common article 1 of the international covenant on civil and political rights and the international covenant on economic, social and cultural rights which provide: “all peoples have the right to self-determination. by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”15 it is unnecessary, for present purposes to summarise the emergence of the right to self-determination in international law. it is sufficient to note that it is now accepted that peoples have a right to self-determination in three situations: where they are under colonial domination; where they are subject to alien military occupation; and where they are a distinct racial group denied equal access to government (so-called “racist regimes”). the rules of international law: (a) forbid a state in such circumstances from taking military or other coercive action to suppress the lawful exercise of the right to selfdetermination; (b) recognise that peoples exercising the right to self-determination have, in the last resort, a licence to engage in armed conflict to protect themselves, and to prevent the violent suppression of the exercise of the right to self-determination by the oppressor state; 15 united nations international covenant on economic, social and cultural rights part 1 article 1(1). the denning law journal 117 (c) forbid third states from affording support to oppressive states so as to assist them in suppressing the exercise of the right to selfdetermination. in self-determination of peoples by professor antonio cassese,16 former president of the international criminal tribunal for the former yugoslavia, the position in international law is summarised as follows: “[i]t now seems well established that international law bans not only the use of military force by states for the purpose of denying selfdetermination to a colonial or foreign or a racial group, but also other forms of forcible action designed to pursue the same goal. the first case occurs when a state uses armed violence to maintain or enforce its denial of self-determination. the second case is when a state wielding authority over a colonial people, besides failing to take all the necessary measures for enabling the people to exercise its rights to self-determination, also sets up institutional, coercive mechanisms designed to prevent the implementation of self-determination (or in the course of its military occupation of a foreign country establishes procedures and takes measures designed to thwart any attempt by the occupied people to exercise its right to self-determination; or alternatively sets up in its domestic legal system institutions which deny a racially discriminated group equal access to government). in both classes of cases the denial of self-determination has a twofold legal relevance under international law: firstly, it constitutes a violation of international legal rules; secondly, as we shall shortly see, it legitimises the resort to military force by the organisation representing the oppressed people or group… the importance of these normative developments should not be underestimated: the international community has gone so far in its protection of self-determination as to prohibit not only the use of military force by the oppressive state, but also what could be termed ‘institutionalised violence’, namely all those measures, mechanisms, and devices destined to prevent peoples or racial groups from exercising their right to self-determination… the un charter neither authorises nor bans the use of force by dependent peoples (or rather, by liberation movements representative 16 a cassese, self-determination of peoples: a legal reappraisal (cambridge, cambridge university press,1998). terrorism, proscription and the right to resist in the age of conflict 118 of those peoples) for the realisation of external selfdetermination…although no legal right proper was thus bestowed on liberation movements to resort to force, gradually the view emerged among states that nevertheless resort to force by these movements was not in violation of the general ban on force that had meanwhile emerged in the world community…however, the attitude of the world community was qualified by a basic condition: that resort to force by liberation movements should only be effected as a response to the forcible denial of self-determination by the oppressive power, that is by the refusal of the latter state, backed up by armed force, or even coercive measures short of military violence, to grant selfdetermination to colonial peoples (or to peoples subjected to foreign military occupation or to organised racial groups denied equal access to government). furthermore, the world community did not go to the lengths of conferring a legal right proper on liberation movements, but only granted a licence to use force… on the other hand, third states must refrain from assisting a state that forcibly opposes self-determination. any substantial help to the oppressive state, be it military or economic in nature, is regarded as illegal under current international law.”17 these developments are reflected in two key un resolutions: (a) the 1970 un general assembly declaration on principles of international law concerning friendly relations and cooperation among states in accordance with the charter of the united nations (resolution 2625); and (b) the 1974 un general assembly definition of aggression (resolution 3314). they are also reflected in the un international law commission’s draft articles on responsibility of states for internationally wrongful acts.18 notwithstanding the status of the self-determination principle, however, the counter terrorist strategy deployed by many states since 9/11 has had a profoundly corrosive affect upon the operation of the principle of selfdetermination and, by implication, the international community’s commitment to support groups struggling for democracy against oppressive regimes. it has 17 as above p 200. 18 un international law commission’s draft: responsibility of state for internationally wrongful acts 2001. the denning law journal 119 certainly brought into sharp relief the international community’s historically schizophrenic attitude towards the principle of self-determination and its deep distrust about its further application. as we know, there has always been an uneasy relationship between the principle of self-determination and the phenomenon of terrorism. there is a discernible tension between calls for a wider concept of terrorism and how that interplays with the recognition of the principle of self-determination, involving as it does a potential license to deploy force as a last resort in defence against an oppressive regime. it is this tension that lay at the heart of the international community’s inability to come to an agreed consensus about what constitutes terrorism before 9/11. it is why the ad hoc committee on international terrorism, established by the un general assembly to find a unanimously acceptable definition of terrorism, and which met from 1972 to 1979, was singularly unable to reach a consensus on a definition of the term terrorism. on the one hand many former colonised states were adamant that the legitimate actions of national liberation movements should not be confused with terrorism. on the other hand, many other states were deeply suspicious of extending the principle to situations unrelated to the decolonisation process. such suspicion only increased after decolonisation. thus, despite self-determination being recognised in un treaties and attaining the status of a peremptory norm in international law there has been a concerted and consistent attempt to limit its external application.19 it is for this reason that certain commentators argue that the outsourcing of the definition of terrorism to nation states since 2001 is a particularly dangerous development given the backdrop of these states lack of respect of thee right to self-determination. too many states have a vested interest in down playing the right or not legally protecting the right to self-determination precisely because of their own concerns about their own minorities or indigenous peoples or those of their allies. underlying this entire approach is the desire to reinforce the supremacy of the nation state and its sovereignty at the expense of other principles of international law, which seek to limit such state authority. far from seeking to protect the principle of self-determination or democracy, since 2001 member states have used the opportunity presented by the upsurge in terrorism to further relegate its practical effect. time and again they have ignored these 19 the icj has virtually denuded the right of practical effect by (1) equating the term “peoples” with the “government of a whole territory”; and (2) through (the “uti possidetis”) rule that the exercise of self-determination must not involve changes to existing frontiers except where relevant nation states’ consent. this conflated territorial constraint has effectively disenfranchised minority peoples in a majority in a province or part of a state from invoking the right of external self-determination. (one need only take a cursory glance at the namibia case to understand just how far the principle has been neutered). terrorism, proscription and the right to resist in the age of conflict 120 rights preferring instead to define terrorism in its broadest sense thereby giving governments the widest possible discretion to prohibit groups suspected of falling within that broad definition. this is because the right of self-determination with its suggestion that peoples of a territory can determine by a free and genuine vote the political status of their homeland either through independence, autonomy or integration with another state – presents a very threat to the power and authority of the nation state. over the last six years there has been a demonstrable effort on the part of numerous states to deny or give succour to any liberation or resistance movement who prey in aid of the principle of democracy or selfdetermination in their purported fight against oppressive states. on the contrary, movements who seek to invoke the principle are now routinely criminalised through proscription. this has huge consequences for numerous struggles around the world and for those organisations involved in them, such as the palestinian search for statehood. thus, the continued failure of the international community to reach an agreed consensus about what constitutes terrorism assumes much greater importance than at any time before september 2001. the right to democracy and or resist an oppressive regime this attitude towards self-determination is replicated by many states attitude towards those groups who seek to resist oppressive regimes in support of democratic change. most domestic provisions concerning terrorism and proscription fail to recognise any right to resist, rebel, or take up arms as a last resort in support of democracy. this is particularly ironic given the international community’s commitment to the principle of democracy. both the general assembly and the un commission on human rights have described terrorism as aimed at the destruction of democracy or the destabilising of “legitimately constituted governments” and “pluralistic civil society.” other resolutions state that terrorism “poses a severe challenge to democracy, civil society and the rule of law.” the 2002 eu framework decision, the 2002 inter-american convention, and the draft comprehensive convention are similarly based on the premise that terrorism jeopardises democracy. while the jurisprudence of the european court of human rights has consistently upheld the principles of democracy and pluralism as constituting the cornerstone of the convention which all member states are obliged to adhere. yet despite this political commitment to the principle of democracy most member states have singularly failed to incorporate that commitment into domestic definitions of terrorism. although there is no entrenched legal right of democratic governance in international law it is clear that since the end of the denning law journal 121 the cold war this principle is evolving into such a right and that the international community has begun to take idea of democratic rights seriously. the example of the united kingdom a paradigm example of state failure to fully incorporate recognition of the right of self-determination and or a right to democracy in its definition is the uk and its enactment of the terrorism act 2000 (ta). section 1(1) of the terrorism act defines terrorism as the use or threat of action falling within section 1(2) which is designed to influence the government or to intimidate the public or a section of the public for the purpose of advancing a political, religious or ideological cause. it has been held by the court of appeal that the word “government’ in s1(1)(b), as explained in s1(4)(d) in relation to foreign governments, is not limited to those countries which are governed by what may broadly be described as democratic or representative principles but includes a dictatorship, or a military junta or a usurping or invading power. notwithstanding the european convention’s commitment to democracy the court ruled that s1 did not specify that the ambit of its protection is limited to countries abroad with governments of any particular type. what was striking about the language ofs1, read as a whole, “is its breadth.” 20 the action specified in section 1(2) is action which (a) involves serious violence against a person (b) involves serious damage to property (c) endangers a person’s life, other than that of the person committing the action (d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system. the use of an action falling within section 1(2) which involves firearms or explosives, and which is carried out for a political, religious or ideological cause, is terrorism, whether or not it is designed to influence the government or to intimidate the public or a section of the public: section 1(3). thus, the use of any firearm for a political purpose in a manner which endangers a person’s life is terrorism. and the disruption of any electronic system for a political purpose is terrorism, whether or not it is done by violent means. section 1(4) makes it clear that the action may be an action which takes place outside the united kingdom, and the government whose actions it is sought to influence may be a foreign government. the definition adopted in the ta is broader than that adopted in the international convention (icstf). in particular: (a) the icstf definition is confined to the use of violence on civilians and non-combatants. 20 see court of appeal judgment dated 16/02/07 in r v f. case no: 2007/00579/b5. [2007] ewca crim 243. terrorism, proscription and the right to resist in the age of conflict 122 (b) it does not include damage to property (other than by bombing). (c) it does not extend to action which creates a serious risk to health or safety. (d) it does not include the non-violent disruption of an electronic system. it follows that the potential range of foreign organisations falling within the definition of terrorism under the ta 2000 is extremely wide. it potentially encompasses almost all organisations engaged in armed conflict around the world, whatever the circumstances, and is wide enough to include organisations which have the political support of the united kingdom and which would, for that reason alone, not be proscribed (such as the northern alliance in afghanistan). the power of proscription under section 3 is, however, discretionary. the secretary of state is not required to proscribe any organisation merely because it meets the statutory test. the judgment which the secretary of state is called upon to make is an essentially political one but one guided by principle, fairness and a proper examination of the surrounding context. it is plain that the definition of terrorism in section 1 was intentionally overbroad, so as to delegate to the secretary of state the judgment as to which organisations would, and which would not, be proscribed. in fact it is noteworthy that the scope of the secretary of state’s discretion is further enlarged by the criteria for proscription. section 3(3) of the ta provides that the secretary of state may exercise his power to add an organisation to the list of proscribed organisations in schedule 2 “if he believes that it is concerned in terrorism.” section 3(5) provides that an organisation is “concerned” in terrorism if it (a) commits or participates in acts of terrorism, (b) prepares for terrorism (c) promotes or encourages terrorism or (d) is otherwise concerned in terrorism. at first sight, it may appear that the secretary of state must believe that the organisation is engaged, directly or indirectly, in acts of terrorism as defined in section 1 at the time he proscribes it, or at the very least that it is, at the relevant time, preparing for such acts or promoting or encouraging such acts by others. this appears to be the natural reading of section 3(3) which uses the present tense (“…is concerned in…”). however, section 3(5)(d) establishes an even broader basis for proscription. even where an organisation is not committing, participating or preparing for terrorism, nor encouraging or promoting such acts by others, it may be proscribed if the secretary of state believes that it is “otherwise concerned” in terrorism. as regards de-proscription, the secretary of state interprets this to include a situation in which an organisation is not currently engaged in any of the prohibited forms of conduct, provided he believes or fears that it has engaged in acts of terrorism in the past, and may possibly do so again in the future. the denning law journal 123 this interpretation has recently been rejected by the court of appeal in the case of the secretary of state for the home department and lord alton of liverpool and others (case no. 2007/9516). what is clear is the definition in the uk terrorism act 2000 is plainly capable of encompassing organisations that have engaged in lawful armed conflict in the exercise of the internationally recognised right to selfdetermination of peoples. as noted above, the united kingdom is bound, in international law, to recognise that liberation movements representing certain peoples and organised racial groups have the right to engage in armed conflict in order to realise their legal right to self-determination. and it is bound, in international law, to refrain from offering material support to states engaged in the suppression of the exercise of this right by military or other coercive means. however, the definition of terrorism in section 1 of the terrorism act is plainly wide enough to include such movements and organisations. those who support, or seek to elicit support for legitimate liberation movements, recognised as such under international law, are nonetheless at risk of proscription. the same is true for any organisation that claims to be resisting an oppressive regime and taking up arms as a last resort in an attempt to establish democratic change. however, as the court of appeal made clear in r v f (cited above) the terrorism act provides no cover in relation to those who take up arms against oppressive tyrannically regimes even as a legal defence rather than a claim. take also, for example, the uk proscription of the pmoi, an iranian resistance movement dedicated to the overthrow of the current regime in tehran. the uk secretary of state, in refusing the application to de-proscribe the pmoi, stated: “ the home secretary has taken full account of the …assertion that mujahedin e khalq is involved in a legitimate struggle against a repressive regime and has no choice but to resort to armed resistance. he notes too the claim that armed resistance is concentrated against military and security targets within iran only. the home secretary does not, accept, however, any right to resort to acts of terrorism, whatever the motivation…”21 the reference to acts of terrorism means any use of force. it is simply impermissible for any movement to deploy force against another state in any circumstances including those provided for under international law. one might have reminded the home secretary of the preamble to the universal 21 right to resist oppressive regimes must be recognised in terrorism legislation. – m muller – http://mujahedin-e-khalq.org/mek-mko/ terrorism, proscription and the right to resist in the age of conflict 124 declaration of human rights (1948) (and its recognition of the rebellion as a last resort) that: “it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.” yet, the proscription of the pmoi continues despite former prime minister blair’s recent admission on 8 february 2005 that iran “certainly does sponsor terrorism” and is a deeply repressive regime. again, it matters not whether this is or is not in fact an accurate description of the iranian regime. what is striking is the uk government’s desire to proscribe an organisation that does not have as its target any uk interests, and which, in the words of mr. blair, is fighting a state sponsor of terrorism. the important point is not whether the uk government was right to proscribe this particular organisation but its apparent determination to impose a total prohibition on the use of violence whatever the circumstances and however dire the oppression of the group taking up resistance. given the potential breadth of the home secretary’s discretion to proscribe surely one aspect of the exercise of this discretion is to have due regard for the principles of international law including the general principles of community law when deciding to proscribe an organisation that falls within the statutory criteria. thus, even if the definition of terrorism under uk law is broad enough to encompass all organisations that deploy or threaten to deploy violence, the home secretary’s discretion is likewise broad enough to make exceptions based upon compliance with international obligations. proscription regimes and the reinforcement of state sovereignty so why do democratic governments such as the uk government feel it politically necessary to not just define but also strictly apply the definition of terrorism in such a way as to jettison any commitment to democracy or selfdetermination or make any allowance for those foreign movements fighting undemocratic or oppressive regimes or who were engaged in lawful armed conflict in the exercise of the internationally recognised right of the self determination of peoples? especially in circumstances where the uk routinely expresses its support for the principle of democracy and is bound by international law to recognise the right and to refrain from offering material support to states engaged in the suppression of the exercise of the right by military or other coercive means. the denning law journal 125 why, for example, in march 2001 did the uk government feel compelled to proscribe 21 organisations together in a “take it or leave it list” without providing parliament with an opportunity to properly consider the individual merits in respect of each group or examine the distinction between terrorist, separatist, resistance, and liberation movements? after all, the uk terrorism act 2000 prefigured 9/11 and the subsequent global rise of islamic fundamentalist insurgency. the 2000 act was not rushed through parliament as a consequence of any state of emergency. nor was it was enacted due to massive heightened public anxiety over terrorism. in fact the terrorism act came into force a full six months before 9/11 even occurred. some argue that the enactments like the uk’s terrorism act 2000 form part of a politicised process that preceded 9/11 in which many states had effectively resolved between themselves to reinforce the supremacy of state sovereignty at the expense of international law. these states were already increasingly co-operating with each other on a bilateral and sometime multi lateral basis to stop each other’s territory from being used by foreign resistance movements, irrespective of whether such movements could be said to be terrorist in nature or merely legitimately defending themselves against attack by an oppressive or racist regime. in short, these states effectively failed to protect the principles of self-determination and democracy within their domestic definitions of “terrorism” as both principles constitute a threat to the power and authority of the nation state and interfered with their respective foreign policies. that is why many legal commentators have argued that whether a group is on or off a proscription list has more to do with geo politics and diplomatic relations between states than with genuine threats to a particular countries national security and the strict application of law in relation to terrorism. the un stricture to member states to co-operate in countering terrorism in practice has become intertwined with a whole set of other foreign, military and strategic objectives that govern relations between states. the temptation to offset any strict application of the law relating to fighting counter terrorism in favour of achieving other desirable foreign policy goals is huge. this temptation fundamentally affects the integrity of counter terror legislation and creates real resentment and further resistance within dissident groups who are caught by measures taken on broader policy grounds. classic examples include the pmoi, which according to official papers was only proscribed by the clinton administration and later by the eu as a “good will gesture” towards iran when the u.s. was seeking to court the newly elected moderate president khatami. the european council’s decision to proscribe the pmoi was subsequently challenged in the european court of justice. in early 2006 the court of first instance declared the original proscription unlawful holding that the council had breached the applicant’s terrorism, proscription and the right to resist in the age of conflict 126 procedural rights to a fair hearing and had wholly failed to provide reasons for the proscription.22 back in the uk a group of prominent lords and members of parliament challenged the failure of the home secretary to de-proscribe the pmoi on the grounds that it breached fundamental rights and was politically motivated. the application for de-proscription was filed in june 2006. by that time the pmoi had given up its armed struggle for five years, voluntary disarmed its cadres in iraq, and publicly pledged itself to overthrowing the regime in tehran through peaceful non-violent means. on 30th november 2007, the proscribed organisation appeals commission (poac) gave judgment and declared the proscription unlawful, characterising the position of the home secretary as legally “perverse”.23 in april 2008 the court of appeal emphatically upheld that ruling. the court referred to a two-stage test. the first test concerned whether the pmoi met the statutory provision of being “otherwise concerned in terrorism” under s 3(5)(d). the second test concerned whether, having come within the statutory provision, the home secretary lawfully exercised his discretion to proscribe or refuse to de-proscribe the pmoi. both tests required an intense scrutiny of the home secretary’s belief that the pmoi was “otherwise concerned in terrorism” because proscription interfered with fundamental human rights. in the event, the court of appeal upheld poac’s findings as to the nature of the scrutiny to apply and as to its the rulings of fact and law. in particular, it specifically rebutted the home secretary’s submission concerning the ambit of section 3(50(d) that it was enough for an organisation to be “otherwise concerned in terrorism” even if it was not currently engaged in promoting, preparing or committing acts of terror, provided it maintained its organisational existence and the home secretary entertained a fear that it might use its resources to return to violence in certain unspecified circumstances. in fact what needed to be legally and evidentially demonstrated was that the pmoi was currently engaged in terrorism and/or continued to maintain its organisation for that specific intended purpose. there was no evidence to this effect and nothing less would do.24 another example of a less than perfect legal proscription process concerns the original eu proscription of the pkk25, a radical kurdish nationalist party 22 see case t-228/02 organisation des modjahedines du people d’iran v council [2006] ecr ii – 4665. 23 see poac judgment of 30/11/07 in lord alton of liverpool & others (in the matter of the people’s mojahadeen organisation of iran) v secretary of state for the home department. appeal no: pc/02/2006 24 see times law report, 13/05/08 – court of appeal judgment dated 07/05/08 in secretary of state for home department v lord alton and others. case no: 2007/9516. 25 partiya karkerên kurdistan. the denning law journal 127 advocating greater rights for kurds in turkey. that organisation found itself proscribed by the eu after repeated requests from turkey despite having observed a six-year cease-fire during which no acts of violence occurred. in fact the european council failed to proscribe the pkk in its first proscription list of november 2001 issued just after 9/11 despite having conducted a thorough review of all organisations potentially caught by eu terror provisions. six months later the european council proscribed the pkk but only after it had announced its own dissolution and created a successor organisation kadek, whose alleged purpose was to foster a democratic settlement to the kurdish question. yet quite remarkably the council failed to proscribe the successor organisation despite regarding kadek as an alias of the pkk. when the council did subsequently proscribe the successor organisations kadek and kongra-gel as an alias of the pkk in 2004 it provided no reason for doing so whatsoever. many observers find it hard to understand the legal logic of this proscription process. no reasons were ever provided to justify any of these decisions at all. more significantly, there was no explanation as to why, even if the pkk technically came within eu terror provisions, the council found it legally necessary to exercise its discretion to ban such an organisation at a time when it had given up armed conflict and was ostensibly in search of a non-violent solution. by 2004 the pkk had been on cease-fire for some six years. some observers suggest the process had more to do with international politics and the need to appease turkey than with the strict application of law. apart from the uk, many eu countries initially appeared reluctant to act against the pkk precisely because it was on cease-fire. this state of affairs had substantially assisted the eu accession and reform process within turkey. observers suggest this was why the pkk was not banned in november 2001 and only banned in april 2002 after it had dissolved itself and had created a successor organisation. the pkk subsequently returned to the use of violence after its offer of a non-violent settlement was rejected by turkey and all of its allied and so called “democratic” successor organisations, like kongra-gel, were proscribed by the european union in 2004. just whether the proscription regime deployed by the eu actually helped rather than hindered the international fight against terrorism remains a matter of real debate. the recent european court of justice’s ruling of march 2008 annulling both the original and 2004 proscriptions of the pkk26 and kongra-gel for breach of procedural rights and a failure to state reasons by the council of the european 26 see case t-229/02 pkk and knk v council of the european community – judgment of 15/02/05 of the european court of justice and 03/04/08 of the court of first instance of the european communities. terrorism, proscription and the right to resist in the age of conflict 128 union merely exacerbates this debate.27 what is clear is that the lack of procedural and substantive rights afforded to these organisations by the council of the european union hardly engendered within those organisations a respect for the rule of law or an acceptance that de-proscription procedures will be applied neutrally and fairly. if anything the manner by which the proscription regime was deployed merely fuelled the pkk’s eventual return to violence as all avenues for dialogue were closed. thus, to many, the circumstances of the pmoi proscriptions and other eu proscriptions, like the original pkk decision, often appear to have less to do with the strict application of anti-terror provisions and more to do with the need of certain states to get other states to root out unwanted exiled dissident groups. in this process proscribing organisations appear to be traded between states like carbon trading emissions quotas. thus, in order for certain states to secure certain foreign policy goals, and/or the co-operation of other states in their own fight against indigenous opposition movements, it became necessary to ensure the widest degree of legal latitude and discretion when it came to the business of proscription. that is why little attempt is made by western powers to protect the right of self-determination or to ensure a right to democracy in terror legislation, despite their own avowed political support for the principle of democracy. yet, while it might be necessary in terms of “real politic” for western states to afford to themselves a wide legal discretion when deciding to proscribe an organisation or not, there should be no illusion about how the infusion of politics into law by this process has degraded the legal integrity of a number of proscription regimes and actively hindered the ability of third parties and the international community to resolve certain conflicts through peaceful means. proscription regimes and the failure to define terrorism internationally we know from bitter experience that how we label each other has a significant impact upon how we treat each other not just legally but also socially and politically. from us senator mccarthy’s anti-communist list in the 1950’s onwards, we have seen time and again just how dramatic and draconian the consequences can be for a person or a group once they becomes designated on a proscribed list. these lists are not just designed to combat criminality. they are designed to de-legitimise certain organisations and their attendant struggles. proscription regimes are not simply legal tools against 27 see case t-253/04 judgment of 03/04/08 the court of first instance of instance of the european communities in kongra-gel and others v council of the european union, united kingdom of great britain and northern ireland, intervener. the denning law journal 129 terror but ideological and political ones as well. they communicate societies disfavour on the most profound scale. accordingly, no one should be in the slightest doubt as to the legal, political and cultural significance of the development of comprehensive proscription “terror lists” in the wake of 9/11. the consequences of proscription are profound and far-reaching. whether it is the usa patriot act28 or the eu common position on combating terrorism29 or the uk terrorism act 2000,30 all use proscription terror lists as a condition precedent to invoking a regime of offences designed to stifle a group’s ability to organise, meet and communicate. the purpose of the proscription lists are clear it is to ostracise, censor, criminalise and silence all those groups that unfortunately find themselves on the list or who are associated with groups or persons on the list. in conclusion, the failure to agree an international definition of terrorism has had a particularly dangerous impact in field of domestic proscription regimes, the preferred method of combating terrorism around the world. the illegitimate or legally botched use of these proscription procedures is dangerous as it breeds long-term resentment among many exiled dissident groups and communities. the issue is not even whether on the relative merits any of the above named organisations deserve to be legally proscribed. it is the failure of western states when deciding to proscribe an organisation or not to adhere to fair proscription procedures that are accessible, transparent and apply proportionate legal criteria that have due regard to international law and the protection of fundamental freedoms. the fact that western states no longer accept that there are any circumstances where a group or unrecognised 28 the usa response to 9/11 and the un security resolutions is to be found in the usa patriot act (united and strengthening america by providing appropriate tools required to intercept and obstruct terrorism act) which was followed on 24 september 2001 by presidential executive order (no. 13224) entitled “presidential order blocking transactions with terrorists, which proscribed 100 persons and entities suspected of being connected with terrorism.” 29 the eu response to unsc resolution 1373 is to be found in common positions of 27 december 2001, 2001/930/cfsp on combating terrorism, and 2001/931/cfsp on the application of specific measures to combat terrorism ([2001] oj l 344/90), followed by the council framework decision of 13 june 2002, which includes a definition of terrorism ([2002] oj l 164/3), the framework decision on the european arrest warrant ([2002] oj l 190/1), and other measures designed to freeze assets through the blacklisting suspected terror groups or persons. [in the eu proscription, although more symbolic, leads to the potential freezing of assets, and gives a powerful nod to member states to domestically proscribe the relevant organisation or person]. 30 the uk’s relevant anti-terror legislation is to be found in the terrorism act 2000, which provides for the proscription of terrorist organisations. on 29 march 2001 parliament passed an order formally proscribing 21 organisations in a take all of it or live it list. terrorism, proscription and the right to resist in the age of conflict 130 people might be forced to have to violence in support of a political objective protected by international law has huge implications for global security and conflict resolution. a dangerous international lacuna why does all this matter? it matters because, more often than not, the source of violence around the world occurs where there is no democratic outlet for dissent or credible protection for persecuted peoples and minorities. a dangerous political and human rights lacuna has been created in the international legal system. this lacuna consists of the international communities failure to address the position of stateless nations, peoples, and persecuted minorities, and those involved in the collective fight for democratic reform against authoritarian regimes. instead, member states within the united nations have preferred to reinforce the virtual inviolability of the system of state sovereignty, save in the exceptional circumstances where the security council authorises use of force under chapter seven. this lacuna has led to numerous internal conflicts which could have been avoided had certain avenues of international political and legal redress been available. the failure to provide avenues of redress has led numerous groups to turn to more violent methods. the recent swathe of domestic terror legislation simply entrenches this process through its failure to distinguish between terrorism and true resistance in support of democratic change. the attempt to secure international harmony and cooperation through the enforcement of the supremacy of state sovereignty at all costs merely creates more adherents to non-peaceful strategies as dissident groups feel disenfranchised and unfairly punished. as noted above, the root cause of this remains the continued failure of the international community to reach any agreed consensus about what constitutes terrorism and the outsourcing of the definition of terrorism to member states. as helena kennedy qc, the former chair of the british council, perceptibly notes: “until there is an internationally recognised and sufficiently restrictive definition, it will be hard to have confidence that struggles for selfdetermination and other political activities will not be wrapped up in accusations of ‘terrorism’.”31 31 suspect communities: the real “war on terror” in europe (london metropolitan university) http://www.ejdm.de/suspect%20communitites%20conference%20report.pdf the denning law journal 131 kennedy is surely right when she warns of the danger of “the passing of anti-terrorist legislation against the backdrop of principle.” the united nations human rights committee has expressed concern about the legislative measures taken by some countries and urged states to ensure that measures undertaken pursuant to resolution 1373 comply with the international covenant on civil and political rights. more recently, the council of europe issued guidelines of the committee of ministers on human rights and the fight against terrorism32 stating that it is “absolutely necessary, to fight terrorism while respecting human rights, the rule of law and, where applicable, international law.” in fact member states of the eu would be wise to recall that the eu note accompanying the draft of the european framework decision circulated after 11 september 2001 stated that the definition of terrorism does not include “those who have acted in the interests of preserving or restoring democratic values.” the council of europe parliamentary assembly 2008 report and resolution on the use of terror lists prepared by its committee on legal affairs and human rights (clahr), written by senator dick marty, rightly criticised the failure of eu and its states to adhere to principles of legal fairness and international law when enforcing proscription regimes.33 in short terror lists should not used as mere instruments of foreign policy without a proper regard for the principles of due process and rights recognised in both of national and international law. certain persecuted groups allegedly forced to take up violence as a last resort must be given an avenue of redress or at the least, the possibility of raising a legal defence, both procedurally and substantively, to a charge of terrorism, so that any further resort to violence can be rightly condemned as extremist and unlawful by all right thinking nations. otherwise the application of proscription regimes will hinder rather than help the fight against terrorism and the wider search for peace across the globe. 32 appendix 3 to the decisions of the committee of ministers, adopted at their 80th meeting on 11 july 2002 cm/del/dec (2002) 804 of 15 july 2002, http://wcm.coe.int/viewdoc.jsp?id=296009&lang=en. 33 see committee on legal affairs document 11454 and the council of europe parliamentary assembly resolution 1597 (2008) on united nations security council and european union blacklists. rights to frozen embryos the denning law journal 191 case commentaries evans v united kingdom (application no. 6339/05) 7 march 2006 a woman’s right to motherhood? mary welstead* the facts in 2000, a 29 year-old woman, natallie evans, and her partner, howard johnston who was aged 24, attended the bath assisted conception clinic, england to be treated together for infertility problems. during the course of the treatment, natallie and howard learned that she required an operation to remove her ovaries because of the presence of pre-cancerous tumours. the tumours were slow growing and she was informed that it would be possible to extract eggs from her ovaries prior to surgery, which could be fertilized in vitro (commonly known as ivf), providing she acted rapidly. the resultant embryos could be frozen for implantation at a later date.1 immediately following this distressing news, natallie and howard were told, in a brief one hour consultation, that if they wished to proceed with ivf, they would each have to consent in writing to the treatment, in accordance with the human fertilisation and embryology act 1990 (hfea 1990).2 they were also told that each one of them had a right to withdraw consent at any time prior to implantation. natallie wanted to have control over her own eggs in case her relationship with howard broke down. she, therefore, asked if it would be possible to freeze her eggs and have them fertilized at a later date * bsc (econ) (lond), ma, phd (cantab), diped (london): visiting professor and director of university of buckingham foundation, university of buckingham. 1 ivf involves the extraction of ova from the follicles of a woman’s ovaries. these are fertilised in a laboratory procedure using the husband’s, partner’s or donor’s sperm. the embryos, which result, are transferred into the potential mother’s uterus in the hope that a viable pregnancy may occur. because the ivf procedure frequently produces more embryos than required or that may be safely transferred at any one time, the excess embryos may be frozen for future use through a process called cryopreservation. 2 sch 3, para 6(3) provides that an embryo created by ivf may not be used for any purpose unless there is an effective consent by each of the gamete providers. para 1 of the schedule provides that “effective consent” means a consent under sch 3 which had not been withdrawn and para 4 allows for withdrawal of consent by giving notice to the person responsible for storage of the embryo. the denning law journal 192 when she was ready for implantation. the clinic explained that it did not undertake this practice because attempts to fertilise eggs which had been frozen were less likely to result in a successful pregnancy than eggs which had been fertilised prior to freezing. howard lovingly reassured natallie about their relationship. he emphasised that he was not planning to abandon her and that he wished to father a child with her. with those assurances, natallie and howard each signed the relevant consent forms which stated clearly: “nb – do not sign this form unless you have received information about these matters and have been offered counselling. you may vary the terms of this consent at any time except in relation to sperm or embryos which have already been used. please insert numbers or tick boxes as appropriate.” howard ticked the boxes consenting to the use of his sperm to fertilise natallie’s eggs in vitro, and for any embryos created to be used for his and natallie’s treatment together. he also agreed to the storage of those embryos for up to 10 years,3 and that his sperm and the embryos could remain in storage if he died or became mentally incapable during that time. natallie signed a similar form which, of course, referred to eggs rather than sperm, and agreed to be treated with howard. twelve of natallie’s eggs were removed and fertilised and 6 embryos resulted. these were frozen. a few days later natallie’s ovaries were removed, whereupon she was told that she must wait 2 years before implantation of the embryos could be attempted. in 2002, 18 months after the surgery, natallie’s relationship with howard broke down. he contacted the clinic and requested, in writing, that the embryos be destroyed. natallie proceeded to seek an injunction which would allow the clinic to continue treating her on her own, and which would, in effect, make howard reinstate his consent to her use of the embryos to create a viable pregnancy. in addition, she sought a declaration under the human rights act 1998 (hra 1998) that section 12 of, and schedule 3 to, the hfea 1990 breached her rights under art 8 (the right to respect for privacy and family life), art 12 (the right to marry and found a family), and art 14 (the right to non-discrimination) of the european convention for the protection of human rights and fundamental freedoms 1950 (echr 1950). natallie also maintained that the stored embryos were entitled to protection under art 2 3 the normal storage period under the hfea 1990 is 5 years but this may be increased to 10 years in the case of people with significantly impaired fertility. the denning law journal 193 (the right to life) and art 8 of the echr 1950. the clinic was ordered not to destroy the embryos until the legal proceedings had been determined. the high court judgment in the high court, wall j refused to grant natallie the injunction and declaration which she sought.4 he held that the parties had consented to joint treatment in the context of an ongoing and functioning relationship. once that relationship came to an end, they were no longer being treated together. wall j rejected natallie’s claim, based on estoppel, that it would be inequitable for howard to withdraw his consent. he held that the provisions of the hefa 1990 with respect to consent overruled the possibility of an estoppel, and that, in any event, howard’s assurance was given merely to console natallie who had just heard the news that she had to have her ovaries removed. it did not amount to an unequivocal promise that he would never revoke his consent. it would not, therefore, be inequitable to allow him to withdraw his consent. wall j also held that the embryos were not persons with rights capable of protection under art 2 and art 8 of the echr 1950, and that natallie’s right to family life was not engaged under art 8. he accepted that the relevant provisions of the hfea 1990 did interfere with natallie’s right to private, in that they did not protect her right to respect for her decision to become a parent. however, the state’s interference with her art 8 right to protect the rights of both parties to treatment and was proportionate in its effect. the whole basis of the legislation was that the parties should be in agreement to become parents throughout the course of ivf. wall j found no breach of art 14 because the relevant provisions of the hfea 1990 applied equally to men and women. he explained that: “if a man has testicular cancer and his sperm, preserved prior to radical surgery which renders him permanently infertile, is used to create embryos with his partner; and if the couple have separated before the embryos are transferred into the woman, nobody would suggest that she could not withdraw her consent to treatment and refuse to have the embryos transferred into her.” 4 evans v amicus healthcare ltd and others; hadley v midland fertility services ltd and others [2003] 4 all er 903. the denning law journal 194 the appeal court judgment natallie appealed to the court of appeal which upheld wall j’s decision.5 thorpe and sedley lj expressed their sympathy for natallie’s situation which meant that she would be unable to give birth to her own child. lady justice arden also acknowledged that, “… the ability to give birth to a child gives many women a supreme sense of fulfillment and purpose in life. it goes to their sense of identity and to their dignity.” however, the court maintained that parliament was within its rights under the echr 1950 to legislate and impose a “brightline” rule, which rigidly enforced the requirement of an ongoing consent by both parties to the use of embryos, even if it interfered with the right to private life of one of them. any other view would enhance the respect for natallie’s private life by allowing her the unilateral right to implantation of the embryos, but it would diminish the respect which was equally owed to howard for his private life. it would force fatherhood, with all its attendant financial responsibilities, on him. without a “brightline” rule, decisions would have to be made, where there was conflict about the use of the embryos, using a mix of ethics, social policy or human sympathy. this could well lead to arbitrariness and inconsistency. the court also noted the impossibility of equal treatment if unilateral consent were to be permitted. women would be able to force fatherhood on reluctant men but it would be impossible at a practical level to impose motherhood on a woman, who withdrew her consent. the echr majority judgment the house of lords refused natallie leave to appeal and she turned to the european court of human rights (echr) in an attempt to fulfill her desire to become a biological mother. the uk government maintained that her application should be dismissed outright as totally ill-founded on the grounds that it did not engage any of the rights claimed under the echr 1950, or if it did, any interference with those rights was within the margin of appreciation afforded to it under the echr 1950 and proportionate in its effect. the echr accepted that natallie’s application raised important questions of law and declared her application to be admissible,6 but proceeded to find in favour of the uk government by a majority of 5 to 2.7 5 evans v amicus healthcare ltd and others [2004] 2 flr 766. 6 see art 29(3) of the echr 1950. the denning law journal 195 art 2 in its decision on the alleged breach of art 2, the echr maintained that, in the absence of any general european agreement on the scientific and legal definition of the beginning of life, the question of when the right to life comes into being is within the margin of appreciation enjoyed by individual states.8 the uk government was, therefore, entitled to adopt a law which determined that an embryo has no independent rights or interests for the purposes of art 2. art 8 in its consideration of natallie’s claim under art 8, the echr accepted that the term “private life” in art 8 was very broad;9 it included the right to respect for the decision to become or not to become a parent.10 the court concluded that natallie’s right to private life had been breached. therefore, the central question became whether the law relating to consent in the hfea 1990 was within the permitted margin of appreciation afforded to constituent states; it was not for the court to consider whether the uk could or should have enacted a different law. the echr rejected the distinction which natallie had sought to draw between the protection of public interest and the safeguarding of private rights. she maintained that the margin of appreciation in the case of the former was wide and justified the state in taking an inflexible approach in its legislation. in the case of the latter, the margin of appreciation was much narrower; absolutism had no part to play in legislation which would infringe the rights to private life. the court took the approach that public interest and private rights overlapped to such an extent that there could be no distinction in the margin of appreciation applicable to both. the court also rejected natallie’s argument that the situation of the male and female parties to ivf treatment could not be equated and that, normally, a fair balance could only be preserved by holding the male donor to his consent. it accepted that there was clearly a difference of degree between the involvement of males and females in the process of ivf, but did not accept that the rights of the male would usually be less worthy of protection than those of the female. the echr found that the hfea 1990 provided a fairly comprehensive legal framework regulating all aspects of artificial reproduction, although it 7 evans v united kingdom (application no. 6339/05) 7 march 2006. 8 see vo v france 53924/00 [2004] echr 326 (8 july 2004). 9 pretty v united kingdom (app no 2346/02) [2002] 2 flr 45. 10 x, y and z v uk (case no 75/1995/581/667) [1997] 2 flr 892. the denning law journal 196 was silent on the issue of what should happen to the embryos in the event of the parties’ relationship coming to an end.11 it was enacted following the warnock committee’s detailed examination of the social, ethical and legal implications of developments in the field of human fertilisation and embryology.12 the 1990 act stressed the importance of the continuing consent to ivf by both parties to the treatment, right up to the moment of implantation. this was seen to protect both the parties and any children who might be born as a result of ivf. the court considered whether the uk government had a responsibility to ensure that a woman, who commenced treatment together with a man specifically to procreate a genetically related child, should be permitted to use the embryos unilaterally if the man withdrew his consent.13 the court maintained that, there must be a fair balance between the interest of the government to regulate ivf effectively, and the right to private life of the individuals who sought such treatment. the court observed that there was no international consensus relating to the regulation of ivf treatment or to the use of embryos created by such treatment. some states had adopted specific legislation in this area; others had only partially legislated or not legislated at all but merely relied on general legal principles and professional ethical guidelines. states varied in their approach to consent, some permitted consent to be withdrawn prior to fertilisation; other states allowed withdrawal at any time prior to the implantation of the embryo. in yet other states, the point at which consent may be withdrawn is left to the courts to determine on the basis of contract or according to the balance of the interests of the gamete providers. on several previous occasions, the echr had found that it was not contrary to art 8 for a state to enact rigid legislation which did not allow for the balancing of rights to private life on a case specific basis.14 “bright-line” rules were acceptable if based on strong policy considerations such as the 11 the silence may be because it was assumed that one of the parties would withdraw consent in such an event, and in any case, on relationship breakdown, they could not claim to being treated together and consent given by both parties is only enforceable for joint treatment. 12 the united kingdom was particularly quick to respond to the scientific advances in this field by the appointment of the warnock committee four years after the first ivf birth. this resulted in the warnock report which was published in 1984. 13 in the proceedings in the uk courts, the arguments and the decisions had, rather, concentrated on the negation of obligations inherent in the government’s interference with the applicant’s right to respect for her private life. however, the echr acknowledged that it mattered little whether the obligations were phrased in positive or negative terms. 14 see pretty v united kingdom (app no 2346/02) [2002] 2 flr 45, odievre v france 42326/98 [2003] echr 86 (13 february 2003). the denning law journal 197 need for legal certainty and public confidence, in a highly sensitive field. to have made the withdrawal of the male donor’s consent relevant but not conclusive would have resulted in problems of evaluation of the respective rights of the parties concerned and would have created irresolvable difficulties of arbitrariness and inconsistency. because ivf treatment involves such sensitive moral and ethical issues in a world where scientific developments are moving rapidly, the echr found that the margin of appreciation must be a wide one. the uk government’s adoption of a “bright-line” rule which permitted consent to the use of the embryos to be withdrawn up to the moment of implantation, and was explained to both parties both verbally and in the consent forms, which they both signed, did not exceed the margin of appreciation or upset the fair balance required under art 8. the court acknowledged that natallie’s circumstances were extreme, and that she and howard had had to reach a decision to sign the consent forms with minimal time for reflection. however, these factors did not alter its view that the uk law on consent in the hfea 1990 was in proportion to the government’s well thought out policy of ivf treatment.15 art 14 in conjunction with art 8 with respect to the alleged breach of art 14, the echr accepted that discrimination exists if there is a difference in treatment in relation to any of the convention rights between persons in analogous or relevantly similar positions, which has no legitimate aim, or if there is a lack of proportionality between the means employed and the aim sought to be realized.16 discrimination may also exist where states fail, without reasonable justification, to treat persons differently whose situations are significantly different.17 once the court had found that the uk government was justified in denying natallie’s right to privacy under art 8, it was bound to rule in a similar way on the alleged breach of art 14. 15 see above note 14. 16 the scope of art 14 is limited to discrimination with respect to rights under the convention, and protocol 12 extends this to cover discrimination in relationship to any legal right if that right is protected under the applicant’s state law. 17 see above note 14. the denning law journal 198 the dissenting judgment judges traja and mijovic, in a dissenting judgment, found against the uk government with respect to art 8, but accepted the view of the majority with respect to art 2 and art 14 in conjunction with art 8. the major thrust of their judgment was that the majority had not balanced the need to produce legal certainty and maintain public confidence in the field of reproductive technology against an individual’s right to private life. in summing up, the dissent held that that, because convention states enjoy a certain margin of appreciation, domestic laws should, in principle, be upheld, even where the legislation includes a "bright-line" rule. however, there should be permitted exceptions where a rigid application of the law could lead to irreparable harm to, or the destruction of the essence of the rights of, one of the parties in conflict. the dissent explained: “‘bright-line’ legislation is exceptional in the european context and, therefore, must be strictly scrutinized by the court. we consider that in certain, specific, circumstances, the relative importance of one of the parties’ interests entails that it should be allowed to override the interest of the other party.” thus, the correct approach, according to the dissent, should be that the right to private life of the party who withdraws consent and wants to have the embryos destroyed should prevail in accordance with the domestic law, unless the other party has no other means to have a genetically-related child; has no other children, and does not intend to have recourse to a surrogate mother in the process of implantation. this case-specific approach was viewed as gender neutral and deemed to provide a fair balance both between public and private interests, as well as between the conflicting individual rights. commentary the echr’s decision in evans has been heavily criticised for denying natallie evans her desire to become a mother. it may be that these criticisms are based not on legal analysis of the decision but, rather, on a sympathetic approach to the dilemma of a woman who was forced to have surgery to remove her ovaries during her child bearing years. it should, however, be remembered that the echr was not considering natallie’s right to motherhood under art 8. it was determining her right to respect for her the denning law journal 199 decision to become or not to become a parent which comes within the meaning of art 8 the right to respect for private and family life. there is no right to parenthood per se. many of those who desire parenthood cannot achieve it because of biological, medical, emotional, social or other obstacles. wall j noted in the high court that: “the family division, unfortunately, is only too used to the fact that nature often makes most fecund those least able properly to exercise parental responsibility, whilst at the same time denying parenthood to those who would undertake it conscientiously” so the question which has to asked is not whether the echr was unfair towards natallie in its decision, which undoubtedly frustrated her desire to have a child, but could it have reached a different conclusion under art 8 which would have enabled her to achieve her biological goal? i would like to suggest that, in spite of the views expressed by the dissent, that the echr could not have done so. all convention states have a measure of discretion in enacting domestic legislation which might, conceivably, interfere with convention rights, provided that they are able to demonstrate that the legislation satisfies a legitimate aim which may be viewed as necessary in a democratic society, and is not discriminatory. the state must always balance the need to protect the public interest with the need to safeguard the private rights of the individual as laid out in the convention. the breadth of the margin of appreciation permitted and the satisfaction of the principle of proportionality will depend on the nature of the right alleged to be infringed, and the level of consensus amongst convention states concerning legislation related to the right. the ready acceptance by the echr of the doctrine of the margin of appreciation and the principle of proportionality must inevitably limit the success rate of many applications which seek redress for infringements of human rights. it is a fault inherent in human rights which lets states “off the hook”. the uk government had an undeniable legitimate aim in enacting the hfea 1990 and, regulating reproductive technology. in so doing it attempted to strike a fair balance between public and private interests with respect to ivf, against a background of rapidly changing scientific and medical knowledge. it is an area which inevitably involves moral and ethical dilemmas and there is no agreement between convention states how ivf should be controlled. in this context, it was readily understandable that the uk government argument that it should enjoy a wide margin of appreciation was accepted by the echr. the denning law journal 200 the policy behind the “brightline” continuing consent requirement in the hfea 1990, as was noted by the court, was to ensure that both the parties who have provided the gametes for fertilization want to continue with the treatment and have the embryos implanted in the female in order to achieve genetic parenthood this policy was to protect, not merely the gamete providers from having parenthood unilaterally thrust upon them but also, in so far as is possible, to safeguard the future welfare of any child resulting from implantation. the process of implantation was viewed by the legislators (somewhat questionably) as the near-equivalent of conception, which occurs at the time of sexual intercourse, for those couples who are not in need of ivf. until the moment of sexual intercourse either party is free to refrain from that activity if he or she does not wish to become a parent. in the absence of a judicial solomon to adjudicate between the parties, the imposition of a “brightline” consent rule in the context of ivf, is not unreasonable to avoid the ethical, rather than legal, dilemma, inherent in determining the conflict between the rights to private life where one party wishes to withdraw consent to implantation. there can be little justification for the enforcement of a right to private life which respects one person’s desire to become a parent, at the expense of another person’s right to private life because parenthood is imposed upon him. to have enforced natallie’s right would be to have denied howard’s right. the dissent’s approach to impose a case specific best interest or quasi-least harm test does not resolve this difficulty. to allow one gamete provider to force the other to continue to consent (somewhat of a contradiction in terms) because she does not and cannot have, a genetic child is not a gender neutral basis on which to determine rights to private life, in spite of the dissent’s statement to the contrary. it is impracticable as well as unethical to force a woman to have embryos implanted in her. it bears a remarkable similarity to the circumstances of abortion where a woman wishes to have an abortion and the man does not want his child to be aborted; the woman’s right trumps that of the man.18 there is no practical means of enforcing the woman to continue the pregnancy. if gender neutrality is to prevail, the male would have to be permitted to take the embryos under his control and attempt to find a surrogate mother, which would allow him respect for his decision to become a parent and thus protect his right to private life. should the silence in the hfea 1990 on the issue of estrangement have made a difference to natallie’s claim? natallie had specifically expressed her concern about the risks of estrangement; she had asked if she could have her eggs frozen in an unfertilised state for that reason. although the clinic, which the parties attended, did not freeze unfertilised eggs because of the low 18 c v s [1988] qb 135. the denning law journal 201 pregnancy success rate, natallie could have either gone to an alternative clinic or sought to have her eggs fertilised with anonymous sperm. this might, of course, have led to the questioning of the stability of her relationship with howard. in the light of the requirement of the hfea 1990 that a woman shall not be provided with ivf unless the clinic has taken into account the welfare of any child who may be born as a result of the treatment, including the need of that child for a father,19 she might have risked the refusal of treatment by the clinic. the fact that natallie received advice in a one hour interview immediately after she learned that her potentially cancerous condition required immediate treatment, although, hardly appropriate in the circumstances, and given that the act itself provides for counseling and advice, is of little help to her.20 if this led to a lack of informed consent on her part, she could hardly claim that she had consented to being treated jointly with howard. the decision in evans has drawn attention to the need for reform of the current legislation on reproductive technology.21 protracted legal proceedings under human rights legislation, in circumstances where time is a crucial element both for women undergoing treatment and for the embryos, are not a satisfactory means of resolving conflict in the context of ivf. it may be that consent to fertilisation by the gamete providers should become the defining moment for consent to potential parenthood , and that withdrawal of consent should not be allowed once fertilisation has taken place. the very fact that a couple consent to undergo ivf together in order to produce embryos is because they wish to have a child; there is no other legal purpose for the creation of the embryos. once fertilisation has taken place, the potential for a child to be born comes into play. if consent could not be withdrawn after fertilisation, women would have to accept that if they do not wish to have the embryos implanted, men would be allowed to have them implanted into surrogate mothers. death of one of the parties, or their estrangement, 19 13(1) the following shall be conditions of every licence under paragraph 1 of schedule 2 to this act (5) a woman shall not be provided with treatment services unless account has been taken of the welfare of any child who may be born as a result of the treatment (including the need of that child for a father), and of any other child who may be affected by the birth.s.13 (1) the following shall be conditions of every licence under paragraph 1 of schedule 2 to this act. 20 hfea 1990 (schedule 3, para 3(1). the hfea code of practice requires that clinics should ensure that gamete providers are not put under pressure to give consent (para 7.5). 21 suzi leather, chair of the hfea announced in 2004 the need for an overhaul of the hfea 1990, which she claimed had served the uk well. however, in the light of new developments in this field, reform was necessary. the government issued a public consultation document in august 2005 to review the hfea 1990. the denning law journal 202 following fertilisation would not have any consequence; a valid consent to implantation would already have been given. the death of both parties would require the development of a different rule. if “brightline” law is enacted in the field of rapidly developing medical developments, it would be preferable if it were to be developed in conjunction with other convention states and kept under review to ensure conformity with the demands of human rights. natallie evans now has a new man in her life who wishes to become the non-genetic father of her children. the couple has one last chance of achieving parenthood via the implantation of the disputed frozen embryos. the echr judges were greatly moved by, and sympathetic to, natallie’s overwhelming biological desire to procreate. they reminded her legal team that they might, somewhat unusually, request that her case be referred to the grand chamber of the echr. this has been now done and the application will be considered by 5 new judges who will decide whether or not to refer the case to the grand chamber. if these judges agree, the case will be considered by the grand chamber of 17 judges. if they do not agree, the current decision will become final in june 2006.22 until the application is considered the court’s requirement that the embryos must not be destroyed but must remain in storage, prevails. however, time is of the essence, in accordance with the hfer 1990, the embryos may only be stored for 5 years. this statutory storage period expires in october 2006. 22 in accordance with article 44(2) of the echr 1950, the judgment of the court will not become final until the elapse of three months from the date of the decision. case commentaries evans v united kingdom (application no. 6339/05) 7 march 2006 mary welstead* the facts the high court judgment the echr majority judgment art 2 art 8 art 14 in conjunction with art 8 the dissenting judgment commentary 12:55 the denning law journal 45 the high court of australia and the supreme court of the united states a centenary reflection* the hon justice michael kirby ac cmg** introduction in october 2003 in melbourne, the high court of australia celebrated the centenary of its first sitting. according to the australian constitution, it is the “federal supreme court” of the australian commonwealth.1 although the constitution envisaged the establishment of the high court, the first sitting of the new court did not take place until a statute had provided for the court and the appointment of its first justices. they took their seats in a ceremony held in the banco court in the supreme court of victoria on 6 october 1903. exactly a century later, the present justices assembled in the same courtroom for a sitting to mark the first century of the court. in the course of the century, the australian justices have paid close attention to the decisions of the supreme court of the united states. the similarities between the australian constitution and that of the united states from which many basic ideas were borrowed made such attention inevitable. for the australian colonists fashioning their own constitution, the united states constitution was “an incomparable model”.2 indirectly, the australian colonies owed their existence to the american revolution and the work of the colonists who met at the constitutional convention in philadelphia in 1787, there establishing a constitution of shared powers, with a supreme court and federal judiciary to uphold the federal compact. but for the loss of the american colonies, it is unlikely that the government of king george iii would have been sufficiently interested to * based on a lecture given to the washington college of law, american university, washington, 24 september 2003. ** justice of the high court of australia. 1 commonwealth of australia constitution act 1900 (uk); 63 & 64 vict c 12. in form, the australian constitution was appended to the imperial act. in reality, it was virtually entirely drafted in australia, adopted at constitutional conventions of elected representatives and approved by referenda conducted throughout the australian colonies. 2 o dixon “the law and the constitution”, in o dixon jesting pilate (2nd ed) (hereafter “jesting pilate”) (new york, hein, 1997) 44. the denning law journal 46 establish the colony of new south wales, out of which the australian nation grew. that development is thus one of those accidents of history that presents the puzzle as to what would have been the fate of the great south land had it not been for the american revolution of 1776. that revolution had dual consequences, important for australia’s future. first, it necessitated the urgent investigation of alternative places to which britain could send the convicts who had formerly been sent to the american colonies. secondly, the british government was sufficiently shocked by the loss of the american colonies that it modified its colonial policy, at least with respect to those settled by colonists who came from the british isles. to some extent, the british learned the lessons that the american colonists had taught. these included the ultimate right of people to alter, or to abolish, the form of government imposed upon them and to institute a new government to correct intolerable wrongs; the need to avoid despotism lest those subject to it throw off such government and provide new protections for their security; and the necessity without delay, to establish (at least in settler societies) a form of government similar to that enjoyed at home by the commons of england. when, after 1776, the british government lost the right to deposit unwanted convicts in the american colonies, the necessity to find an alternative venue arose. various possibilities in africa were canvassed. eventually, those with the responsibility of deciding these things remembered the report of the journey to the south pacific by captain james cook. thus was born the idea of establishing a new colony in australia.3 it was to be a penal colony. australians are therefore children of the american revolution. from the start, their legal history was connected to that of the united states. the evolution of british colonial policy had the consequence of avoiding the need for revolution in australia. from the beginning, the example of the legal and judicial system of the united states remained before the australian colonists. when, eventually, self-government began to spread to the australian colonies after the 1850s,4 part of the impetus for change was the ever-present example provided by the united states constitution and the governmental and judicial systems that it had created. 3 a castles an australian legal history, (sydney, law book company, 1982) 20-31. 4 ibid 165, 401-402. responsible government was granted in new south wales in 1855 by the establishment of an elected lower house of parliament (the legislative assembly). this followed an earlier partial grant of self-government in 1842 by an imperial act that provided for a legislative council, two-thirds of whose members would be elected on a franchise limited by a property qualification. there were similar moves in the other australian states; cf yourgala v western australia (2001) 207 clr 344. the denning law journal 47 the similarities and differences between the constitutional arrangements adopted in australia and the united states have been explored by earlier writers.5 one way of understanding ourselves is to endeavour to see ourselves as others see us. we do this not so much in tribute to others as to reflect upon ourselves holding up the experience of others as a mirror by which we may see our own concerns reflected in slightly different forms. lawyers of the common law tradition share the advantages of the english language and a particular system for solving legal disputes. they enjoy institutions with common features. this linguistic and institutional history brings with it not only similar approaches to the resolution of problems but shared values and a shared methodology for resolving conflict in society. it was in the royal courts in london that the idea of common law institutions took hold. out of the work of those courts came not only the resolution of particular disputes but precedents which, recorded and, followed by later judges, helped to resolve similar disputes. the idea of the public trial, conducted before a judge and a jury was so powerful in the english imagination that when they had their own civil war and decided to rid themselves of an autocratic king, they followed the format of a jury trial, however flawed.6 even in such a matter, the idea of constitutionalism and the rule of law could not be ignored. because the united states and australia share the same language and a great part of the same legal tradition derived from england, it is useful to compare their judicial institutions and legal doctrines. this is especially so in the case of australia and in respect of the judicial branch of government, because, save in certain particular matters, the founders of the australian commonwealth copied from art iii of the united states constitution many of its ideas when they were drafting ch iii of the australian constitution.7 moreover, from the beginning of the high court of australia, the justices borrowed from united states precedents of which, especially in the early years, they were very familiar.8 the high level of similarity of history, culture and law may therefore sometimes make it useful both to the united states and australia to be aware of 5 o dixon “two constitutions compared” in jesting pilate (1997) esp 100-112; f c hutley, “the legal traditions of australia as contrasted with those of the united states” (1981) 55 australian law journal 63. 6 cf m d kirby “the trial of king charles i: defining moment for our constitutional liberties” (1999) 73 australian law journal 577, where the story is told. 7 o dixon “two constitutions compared” in jesting pilate, 100 at 101. 8 they were specially acquainted with james bryce's the american commonwealth: see m n c harvey “james bryce, ‘the american commonwealth’, and the australian constitution” (2002) 76 australian law journal 362. the denning law journal 48 what is happening in the courts of the other country. developments that occur there may occasionally be followed. sometimes, even if not followed, a consideration of the experience of a similar constitutional system requires us to clarify our own thinking and to justify our points of difference, if only to ourselves. similarities judicial power and federal powers: the first similarity between the australian high court and the supreme court of the united states concerns the role of the two courts. in any written constitution, but particularly a federal one that divides power between different parts of the same polity, it is essential to have an umpire. there must be an authoritative means of determining where power lies. in the case of dispute, it is imperative to know whether a particular law or official or judicial act, is valid. in both the australian constitution and the constitution of the united states, the federal supreme court has the responsibility ultimately to decide such matters.9 at different times in the history of a federation, different views will prevail concerning the respective powers of the central (or federal) lawmakers and office-holders and those of the subnational polities, in australia as in the united states, the states. at the beginning of federation in australia, drawing on late nineteenth century united states cases, the federal constitution was seen as a contract between coordinate partners (the commonwealth and the states). in accordance with the written text of the constitution, each component enjoyed substantially equal responsibility for the good government of the people. the three original justices of the high court of australia drew an inference from the federal structure of the constitution, that certain powers were reserved to the state legislatures so that, by the use of its express grants of legislative power, the federal parliament could not use its powers to invade the lawmaking functions inferentially reserved to the states.10 it did not take long for the new national parliament to put this doctrine to the test by the exercise of federal lawmaking power in a way seen to intrude into presumed state functions. the entry of australia into the first world war in 9 o dixon “government under the american constitution” in o dixon jesting pilate (1997). 10 d'emden v pedder (1904) 1 clr 91; deakin v webb (1904) 1 clr 585; webb v outrim [1907] ac 81 (pc); baxter v commissioners of taxation (1907) 4 clr 1087; austin v the commonwealth (2003) 77 aljr 491; 195 alr 321. the denning law journal 49 1914 led to the use of the defence power11 in ways that challenged the previous assumptions about the “reserved powers” of the states. under the defence power, the high court upheld a broad ambit of lawmaking as claimed by the federal parliament to regulate the economy in ways that would otherwise have been unavailable. war made the difference, as so often it does.12 before long, new appointees to the high court of australia questioned the notion of the reserved powers of the states. eventually, in 1920, in the engineers’ case,13 the majority of the court rejected the doctrine of implied state immunities. the court held that, if federal legislation were within the ambit of a grant of power to the federal parliament, broadly construed as befitted a constitution, no implication arose from the federal structure of the constitution that would, on its own, be sufficient to invalidate such a law. this charter for national lawmaking has subsequently been qualified somewhat by an elusive doctrine based on the constitutional necessity that the states should continue to exist, should perform their envisaged constitutional functions, and should not be destroyed or significantly prevented by federal law from discharging their functions as states.14 the engineers’ case was nonetheless a most important charter for the lawmaking power of the federal parliament. as in the united states, the highest court has generally upheld the validity of federal legislation against state constitutional challenges.15 only recently in australia, and usually in relation to implications derived from chapter iii (the judicature), has the federal lawmaking power taken something of a battering.16 constitutional and judicial review: there is no express grant of power to the high court of australia, or any other australian court or body, to invalidate federal or state law as unconstitutional. there are systems of government that assign such ultimate responsibilities in this regard to the legislature. the hong kong special administrative region discovered this when the people’s republic of china insisted that the ultimate powers of supervision of certain “constitutional” 11 australian constitution, s 51(vi). 12 farey v burvett (1916) 21 clr 433; south australia v the commonwealth (1942) 65 clr 373; o dixon, “aspects of australian federalism” in jesting pilate, 113 at 121-122. 13 amalgamated society of engineers v adelaide steamship co (1920) 28 clr 129. for a contemporary, critical commentary see g de q walker, “the seven pillars of centralism: engineers' case and federalism” (2002) 76 australian law journal 678. 14 melbourne corporation v the commonwealth (1947) 74 clr 31. 15 o dixon “aspects of australian federalism” in jesting pilate 113 at 116-121. 16 re wakim; ex parte mcnally (1999) 198 clr 511; bond v the queen (2000) 201 clr 213; hughes v the queen (2000) 202 clr 535; cf gould v brown (1998) 193 clr 346. the denning law journal 50 decisions affecting hong kong after the british handover, belonged to the standing committee of the national people’s congress of china, not to a court.17 in a sense, the recognition until now of the house of lords, as a kind of committee or board of the british parliament, and of the judicial committee of the privy council as an expert legal body advising the british monarch, continue a model of ultimate resolution of legal questions in the legislature or the executive, not in a separate judiciary. in the case of the british institutions, the symbolism does not reflect the current political or legal realities. many of the law lords now rarely take part in political debates in the legislative chamber. some never do.18 although privy council determinations are traditionally expressed in the terms of “humble advice” to the monarch there is no occasion in modern history where the monarch has not accepted that advice. as in so many features of the british constitution, appearances belie reality. proposals to abolish the present arrangements and create a supreme court for the united kingdom are under active consideration in late 2003. however, the existence of alternative models for ultimate decision-making in important constitutional contests, indicates that, without an express grant of authority for judges to have the last word, it was by no means inevitable that it would turn out that way. global constitutionalism therefore owes a great debt to the decision of the united states supreme court in marbury v madison.19 by that decision, the supreme court, through the voice of chief justice marshall, asserted the court’s power to rule conclusively on the validity of the distribution of constitutional powers between the united states congress and the states. 17 the power of the national people's congress to make laws for hong kong, inconsistent with the basic law was upheld in hksar and ma and ors [1997] 2 hkc 315. the ultimate responsibility for the interpretation of the basic law lies under art 158 with the standing committee of the national people's congress: y ghai, “sentinels of liberty or sheep in woolf's clothing? judicial politics and the hong kong bill of rights” (1997) 60 modern law review 459; 459; y ghai, “hong kong and macau in transition debating democracy”, democratisation, vol 2 no 3 [1995], 270. 18 j steyn “human rights: the legacy of mrs roosevelt “ [2002] public law 473 at 483. lord steyn's comments on the peculiar office of the lord chancellor were noted in (2002) 76 australian law journal 216. in july 2003 the office of lord chancellor was abolished, although later revived temporarily it seems. chief justice dixon pointed out that the strict application of the separation of powers was “artificial”, “impractical” and “opposed to british practice”: o dixon “the law and the constitution” in jesting pilate 52. however, as a judge he was to give it strong and inconvenient application: eg the queen v kirby; ex parte boilermakers' society of australia (1956) 94 clr 254. 19 1 cranch (5 us) 137 (1803) discussed o dixon “aspects of australian federalism” in jesting pilate 113 at 115. the denning law journal 51 when the functions of the high court of australia were being designed, it was assumed that the same power of authoritative disposition would devolve upon the court. however, to cure perceived defects in the united states arrangements, two important provisions were added to the australian constitution. being constitutional grants of original jurisdiction, they could not be removed from the high court by any action of the other branches of government. in s 75(iii) of the australian constitution it was provided that in all matters “in which the commonwealth or a person suing or being sued on behalf of the commonwealth is a party,” the high court would have original jurisdiction. it has been argued that, inherent in the grant of such jurisdiction under s 75(iii) of the australian constitution was contained the power to make the jurisdiction effective, as by the issue of a writ of certiorari to quash a constitutionally invalid action of the commonwealth or of a person being sued on behalf of the commonwealth.20 in addition to this, to overcome a perceived gap of the united states constitution identified in marbury v madison,21 original jurisdiction was also granted to the high court of australia in all matters “in which a writ of mandamus or prohibition or an injunction is sought against an officer of the commonwealth.” although these paragraphs of the australian constitution, with their mention of particular remedies, including constitutional writs, represented an advance on the provisions of the united states constitution, the fundamental idea concerning the function of the judicature is one that has been adapted in australia from the united states precedent. needless to say, the assertion of such a large power of ultimate authority, and its acceptance by the people and government, provides a significant defence for constitutionalism. it represents an important check upon excess, or neglect, of jurisdiction. but it also assigns potentially controversial functions to the highest court. in australia, as in the united states, the apex court is constantly called upon to arbitrate on the lawfulness of legislation as well as of executive and judicial acts purportedly done under authority derived from the constitution. 20 australian constitution, s 75(iii). 21 1 cranch (5 us) 137 (1803) where it was held that congress had exceeded its constitutional power by authorising the supreme court in its original jurisdiction to grant a writ of mandamus. the denning law journal 52 common law courts: the high court of australia, like its united states counterpart, is a common law court.22 it uses common law techniques. it hears arguments in open court addressed to judges. they pronounce judgment in open court and publish reasons for their decisions. those reasons are stated in the discursive manner of the common law, as distinct from the abbreviated and seemingly dogmatic fashion of most courts of civil law countries. precedent and the principle of stare decisis are important to both legal systems but they are not unchanging. both courts are increasingly concerned with the meaning of legislation, a feature of an age in which the significance of judge-made law is being overtaken by written law enacted by legislatures. yet even in the task of interpretation of legislation, there are principles of the common law that are observed for the ascertainment of the meaning of the legislation and the exposition of the operation of the law. the common law system avoids gaps in the law. if the constitution is silent and there is no applicable legislation or rules made by the executive or the judges under delegated power, the judiciary in our tradition has the responsibility and function to state a rule of the common law apt for the case. this rule will be derived, for the most part, by analogical reasoning applied to earlier decisions so as to express a new rule that will fill the identified gap. in the united states, the common law was received from england by the original colonies upon the theory, applicable also in australia, that it was carried to the new territories as part of the inheritance of the english settlers. at the same time, the settlers brought with them the principles of equity. the persistence of these traditional streams of law was recognised in article iii of the united states constitution with its reference to the jurisdiction of federal courts as including law (ie common law) equity and admiralty law.23. in australia, the colonial courts were, like many of their predecessors in the american colonies, royal courts, established by royal decree or order in council made in the name of the king. subsequently, specific legislation provided for the introduction of the common law into the several australian colonies at a specified date.24 it was footnote continues 22 o dixon “two constitutions compared” in o dixon jesting pilate (1997)100. 23 us constitution, art iii, s 2. 24 a “charter of justice” dated 2 april 1787 purported to create courts of civil and criminal jurisdiction for the new south wales colony. by a second set of letters patent on 4 february 1814, a “supreme court” and a “governor's court” were purportedly created. because of doubts as to the validity of these instruments, the british parliament enacted the supreme court act 1823 (gb); 4 geo iv c 96. this authorised new letters patent and the establishment of a supreme court as court of record providing the date for the denning law journal 53 recognised that some rules of the common law might not be received into the new settlements, being unsuitable to the condition of those colonies at the time. however, in australia, that exception was not generally given a broad operation. thus, as recently as 1978, the high court of australia held that the english rule that a convicted felon could not sue in the courts until he had served his sentence or received a pardon was suitable to the conditions of the australian colonies and thus received as part of the common law of australia. this was so although, at the outset of british settlement, a large proportion of the colonial population comprised convicted felons who would thereby be excluded from legal rights25. similarly, the high court held that the principle of english law relieving owners of cattle and sheep from liability for damage occasioned to others when their animals trespassed onto public highways, was not unsuitable to the condition of highways in australia, different though they were.26 such borderline decisions proved controversial. they attracted strong dissenting opinions in the high court.27 but it is essential in any common law system to be able to identify the sources of the judge-made and statute law which later judges will be bound to apply. where such law is inherited from another jurisdiction (as in the case of the united states and australia) it is necessary to identify the date for the reception of that law so that disputes about the content of the inherited law will be diminished and can ultimately be resolved according to a clear principle. separation of judicial power: both the supreme court of the united states and the high court of australia are afforded constitutional guarantees of their independence from the other branches of government. so as are the other federal courts envisaged in art iii and ch iii of the two constitutions. section 71 of the australian constitution begins in language that is a direct copy of art iii sec 1 of the united states the introduction of english law. there were similar developments in the other r p american colonies: meagher, w m c gummow and j r f lehane, equity: doctrines and remedies (3rd ed) (sydney butterworths. 1992) 10-21. 25 dugan v mirror newspapers ltd (1978) 142 clr 583; cf us constitution, art iii, s 3 forbidding “corruption of blood”. 26 state government insurance commission v trigwell (1979) 142 clr 617; cf now brodie v liverpool shire council (2001) 206 clr 512. 27 in both dugan and trigwell murphy j dissented: (1978) 142 clr 583 at 606; (1979) 142 clr 617 at 642. the denning law journal 54 precedent. there is an additional reference in the australian constitution to the vesting of federal jurisdiction in “other courts.”28 the united states provision for the appointment of federal judges copied the statute of great britain expressly stating that the judges “shall hold their offices during good behaviour.”29 there is no exact equivalent in the australian constitution. there judicial tenure is implied from the express provision that justices of the high court and other federal courts shall not be removed except “on an address from both houses of the parliament in the same session praying for such removal on the ground of proved misbehaviour or incapacity”.30 in the first century of the australian constitution no federal judge has been removed from office under this power. in one notable case, the power was invoked but the proceedings were later abandoned.31 jury trial: civil and criminal: the united states and australian constitutions inherited from the common law tradition of england the mode of jury trial that was common in that country at the time the two constitutions were written. in the united states and australia jury trial continues to this day in serious criminal cases, both federal and state. the guarantee of jury trial contained in the united states constitution32 influenced the terms of s80 of the australian constitution. the latter provision states that “the trial on indictment of any offence against any law of the commonwealth shall be by jury, and every such trial shall be held in the state where the offence was committed, and if the offence was not committed within any state the trial shall be held at such place or places as the parliament prescribes.” the similarity to the united states text is obvious. the significance of the australian guarantee has been diminished by the strict interpretation applied to its language. in effect, the high court of australia has held that a precondition to the application of the constitutional guarantee is a 28 australian constitution, s 71. see also s 77(iii). 29 us constitution, art iii, sec 1. the position in great britain was regulated by the act of settlement of 1701; 12 & 13 will iii, c 2 and by the commissions and salaries of judges act 1760 (uk); 1 geo iii c 23. 30 australian constitution, s 72(ii); cf us constitution, art 1 s 3 regulating articles of impeachment. only one united states justice has been subject to the impeachment procedure, namely samuel chase (1808). however, there were campaigns for the impeachment of chief justice earl warren and justice william o douglas. justice abe fortas resigned in 1969, possibly in consequence of a threat of impeachment. 31 the events concerning justice l k murphy is told in e campbell and h p lee, the australian judiciary (2001) 102-115. 32 us constitution, art iii, s 2. the denning law journal 55 decision of the prosecutor to proceed with the criminal accusation against the accused federal offender “on indictment”.33 if legislation authorises a summary procedure, and if that procedure is elected by the prosecutor, the result will be that the entitlement to jury trial will be bypassed. along with other judges of the past, i have dissented from this construction of the guarantee of jury trial.34 there is no australian equivalent to the 7th amendment to the united states constitution. in consequence, jury trial of civil causes has greatly declined in australia in recent years. in most parts of australia that mode of trial, if it still exists, is now confined to particular proceedings, such as actions for defamation or actions alleging fraud.35 dissenting opinions: a further important feature of the common law system is the right, enjoyed by appellate judges in the united states and australia, to dissent if they disagree with the proposed orders or reasons of their colleagues. in both countries, this right is taken for granted. it is not common outside the common law world. on a visit to the conseil constitutionnel of france, i discovered not only that the right of dissent was not recognised but that very few of the members of the council favoured its introduction. in part, this attitude originates in a different view about the nature of law. it may be affected by a culture that is fundamentally less libertarian than that of the common law. or it might be traced to the traditions of the codifiers of the civil law whereby the law is ultimately to be found in an explicit provision whose clarity is a source of its legitimacy. in such societies, judicial elaboration of the law usually has a confined role. indeed, it is often regarded as primitive, whereas we see it as honest and transparent. originally, the judicial committee of the privy council, to which appeals lay from australia until their final abolition in 1986,36 allowed no dissent. formally, footnote continues 33 the king v federal court of bankruptcy; ex parte lowenstein (1938) 59 clr 556; kingswell v the queen (1985) 159 clr 284; cheatle v the queen (1993) 177 clr 541; cheng v the queen (2000) 203 clr 248. 34 eg cheng v the queen (2000) 203 clr 248 at 322-328 [220]-[237]. in my reasons i examined united states authorities such as almendarez-torres v united states 523 us 224 (1998) and appendi v new jersey 68 uslw 4576 (2000). see ibid, 328-332 [238][351]. 35 described in naxakis v western general hospital (1999) 197 clr 269 and gerlach v clifton bricks pty ltd (2002) 209 clr 478 and john fairfax publications v rivkin [2003] hca 50. 36 privy council (limitation of appeals) act 1968 (aust); privy council (appeals from the high court) act 1975 (aust); australia act 1986 (aust & uk), s 11; kirmani v the denning law journal 56 this was justified because that court’s reasons were expressed in the form of advice to the monarch. conflicting advice was thought to be an embarrassment. perhaps a somewhat similar view lies behind the civil law tradition that excludes dissents. disagreements are thought to cast doubt on the authority of the court pronouncing its judgment and uncertainty about the content of the resulting law. as in the privy council, this attitude inevitably leads to judicial reasons that are often the product of compromise, as attempts are made to include sometimes incompatible opinions in the one text. some reasons of the european court of justice (which permits no dissents) appear to reflect a similar internal tension. the european court of human rights (whose judges enjoy the right of dissent) avoids such problems. so do the appellate courts of australia and the united states. from the start after the english tradition, judges have, in both countries, always been entitled, indeed obliged, to express their true opinions either as to the outcome of a case or, if agreeing in the outcome, as to the reasons that support the order or judgment disposing of the matter. both in australia as in the united states, only a minority of decisions of the highest court are unanimous. dissenting and separate concurring opinions are a regular feature of the work of each final court. their existence is accepted as reflecting the difficulty and controversy of the cases that come before such courts. they may also reflect the fairly consistent inclinations that emerge in the responses of individual judges, and groups of judges, to the resolution of legal contests. this is so in the united states supreme court. it is also true in my court. in the early days of each court, in part because of the commanding influence respectively of chief justice marshall and of chief justice griffith, there were relatively few dissents. each of the original justices of the high court of australia (griffith, barton and o’connor) had played an active part in framing the australian constitution. they shared common views about its meaning and essential purposes. in the first four years of the high court, there were only four dissenting opinions, all of them by justice o’connor. none was on a constitutional question. but this unanimity broke down with the appointment in 1906 of justices isaacs and higgins, the former especially being of a different opinion on many constitutional and legal questions to that of the founding justices. the unanimity of the first years has never been recaptured. in australia, as in the united states, dissenting opinions can sometimes influence later judicial decisions. occasionally this happens after a relatively captain cook cruises pty ltd [no 2]; ex parte attorney-general (qld) (1985) 159 clr 461 at 464. the denning law journal 57 short time.37 sometimes it occurs after many decades.38 some judges dissent rarely. in recent years i have dissented in about 30% of the matters decided by the high court. that is the highest proportion in the history of the high court. the previous highest rate of dissent was by justice lionel murphy (about 20%).39 the next highest amongst the current justices is justice mchugh (15%), after which the level trickles away to insignificant numbers. however, the right of dissent belongs to every justice. attitudes to its use differ. it is a precious feature of the exercise of the judicial power in both countries. the judicial life: the daily work of the justices of both courts is quite similar. much time is spent in reading written casebooks and argument. time is also spent reviewing the written material filed on behalf of those who seek to engage the jurisdiction of the court. in the early days of each court, after the english tradition, most of the work was performed by the judges sitting in open court, listening to argument and sometimes disposing of decisions by ex tempore opinions and the pronouncement of orders and judgments at the end of the hearing. in more recent times, the oral trial tradition has declined in both courts, although oral argument in open court remains a central feature of the methodology of each body. in the united states, the supreme court, serving a much larger and even more litigious society, has long required written procedures for the admission of cases to the court’s docket. in australia, a provision governing rights of appeal to the high court in civil matters (determined by reference to the value of the matter at stake) persisted until 1984. federal legislation then empowered the high court to control its own appellate jurisdiction. today, virtually universally, that jurisdiction is subject to the requirement of special leave to appeal granted by the court.40 in this way, each court now selects the cases it will determine. applicants for special leave to appeal in australia are normally allowed twenty minutes in which to advance oral arguments the substance of which has 37 eg dietrich v the queen (1992) 177 clr 292 overruled mcinnes v the queen (1979) 143 clr 575; re wakim; ex parte mcnally (1999) 198 clr 511 overruled gould v brown (1998) 193 clr 346. 38 tame v new south wales (2002) 76 aljr 1348; 191 alr 449 overruled in part chester v waverley corporation (1939) 62 clr 1; re patterson; ex parte taylor (2001) 207 clr 391 overruled nolan v minister for immigration and ethnic affairs (1998) 165 clr 178. 39 j hocking lionel murphy: a political biography (2nd ed) (cambridge, cambridge university press, 2001). 40 judiciary act 1903 (aust), s 35 upheld in carson v john fairfax and sons ltd (1991) 173 clr 194. the denning law journal 58 already been considered by the justices in the parties’ written submissions. the workload imposed by these proceedings has led to suggestions either that a universal system of written application should be substituted, as in the united states supreme court, or that the high court should itself decide whether oral argument would be of help to it. the conduct of oral argument in matters of constitutional and legal significance not only has utility for the justices in allowing them to clarify key questions. it also has a strong symbolic significance. if all argument is in writing the transparency of the judicial process is to that extent diminished. oral hearings, even in the final court, continue to have many supporters in australia. the time for an oral hearing of an appeal, once special leave is granted, or of a proceeding in the original jurisdiction of the high court, is not limited to 20 minutes. the court assigns the date for the hearing. normally, it leaves it to the parties to allocate the assigned time between themselves. oral argument is thus more extensive than is usual in the united states court. the role of clerks: the justices today in both courts enjoy assistance not only from the written briefs and the advocacy of the parties and interveners. they also engage young law graduates appointed for a short period to work in the justices’ chambers. in australia, these clerks are called “associates”. the justices of the high court each have two such associates. appointment to such positions is highly sought after. in my own case i advertise vacancies each year in all australian law schools. in consequence, i receive hundreds of applications. eventually these are reduced to one male and one female appointee. i do not chose my staff from particular law schools or on the nomination of others, as seems to be a common tradition in the united states. on the contrary, i observe strict equal opportunity principles in their recruitment. each justice in australia has his or her own system of making such appointments. so far, two former associates have been appointed justices of the court justice mctiernan (who was associate to justice rich) and justice aitkin (who was associate to chief justice dixon). the world of ideas: most justices in both countries today accept responsibilities outside the courtroom. they participate in professional, academic and other functions in keeping with the educative role of a judge of a final court. not all justices welcome such obligations; although some do. in the commonwealth of nations, there is an association of commonwealth judges and magistrates that holds regular conferences at which they can share judicial experiences. commonwealth law conferences and specialist meetings of commonwealth the denning law journal 59 judges provide opportunities for comparing notes on the common issues facing national final courts of appeal. judges of such courts are also expected to take part in the meetings of judges of their own country where, necessarily, they play a leadership role beyond the pages of the court reports. beyond the nation and such commonwealth meetings, there is an increased tendency in recent years to bring together judges from a wider range of countries, including those from other countries of the common law and civil law traditions. for example, a global constitutionalism seminar is held every year at the yale law school. i have attended that series in recent years together with justice breyer of the supreme court of the united states, lord chief justice woolf of the united kingdom, justice iacobucci of the supreme court of canada and judges from the supreme courts of countries as diverse as hong kong, india, israel, japan, peru, poland, the european court of human rights and the french conseil constitutionnel. in such meetings judges of final courts quickly recognise the commonality of questions that arise for decision prompted by the same or similar social movements. acknowledging fully the duty of obedience to their own constitutions and laws, knowledge about contemporaneous approaches to common problems can sometimes enhance the quality of local judicial solutions. at a number of international seminars attended by justices of the supreme court of the united states, i have participated, as they have, in discussion of the growing influence of international human rights norms upon domestic judicial decision-making.41 the recent references in the majority opinions in virginia v atkins42 and lawrence v texas43 to international developments relevant to the issue in hand suggest that the united states supreme court is now joining other final courts in using this source of legal reasoning. atkins concerned the carrying into effect of a sentence of death upon a mentally handicapped prisoner. lawrence concerned the constitutional validity of the texas anti-sodomy laws. jurisdiction can occasionally be an intellectual prison for a judge. of course, some are content to live out their days in that prison, regarding it as their only proper place. however, in the age of jumbo jets, the internet and much greater trans-border judicial dialogue, it is now possible for judges of the high court of australia, the supreme court of the united states and other final courts to meet, as they regularly do. globalism is not only a feature of the modern economy. it is a 41 m d kirby “the australian use of international human rights norms: from bangalore to balliol a view from the antipodes” (1993) 16 university of nsw law journal 363. 42 536 us 304 at 329 (2003), (fn 21) opinion of the court per stevens j. 43 71 uslw 457 at 4578-4580 (2003). opinion of kennedy j for the court. the denning law journal 60 vehicle for the development of ideas. legal ideas are an important category that are not immune from this development. robes, salaries and taxes: there are some minor and relatively trivial similarities between the two courts. the robes of the justices are now very similar. until 1986, the justices of the high court of australia wore the traditional robes of the english judiciary. this meant that, when sitting in a hearing, they wore a wig, an accoutrement to which all of them were long accustomed when practising as barristers. now, in the high court, my robes represent an even more austere copy of those worn in washington. another similarity exists in the relative decline in the remuneration of justices both in the united states and in australia. in 2002 chief justice rehnquist and justice breyer drew this decline to the notice of congress and the american public.44 similar complaints have been made on behalf of the australian judiciary. the remuneration of the justices of each court is protected by a “compensation clause”. the australian provision was modelled directly on that of the united states.45 as in the united states, the problem has not been one of actual diminution of remuneration (save for a suggestion by the australian government during the great depression that the justices of the high court should accept a reduction in their emoluments in common with other federal office-holders).46 the real source of complaint is the comparative decline of judicial salaries when compared to those paid to the justices at the foundation of the court; in comparison with other officials and wage earners at that time; and in comparison with the incomes of the practising legal profession. as in the united states,47 the view has generally been taken in australia48 that nondiscriminatory taxation upon federal judges does not conflict with the prohibition upon the reduction of salaries and other benefits enjoyed by justices already appointed to office. however, in a recent case, the high court of australia struck down a federal taxation law directed at the pension benefits of newly 44 statement of w h rehnquist, chief justice of the united states, before the us national commission on the public service, 15 july 2002. 45 australian constitution, s 72(iii). 46 j bennett keystone of the federal arch (1980) 46. (the boyer lectures, radio national december 17, 1980). 47 united states v hatter 532 us 557 (2001). 48 cooper v commissioner of income tax (q) (1907) 4 clr 1304. the denning law journal 61 appointed state judges, holding that the federal law impermissibly interfered in the government of the state preserved by the federal constitution.49 apart from these commonalities, daily life is similar. in a final court there is no relief from the obligations of reading, research, decision-writing, amendment of drafts, checking of proofs of opinions and discussion of the product with one’s colleagues and staff. the business of running a court within an assigned budget falls heavily on the justices, aided by court staff. the work of both courts is mentally taxing and unremitting. but it is also intellectually exhilarating. within the law, there are few posts that offer the same cerebral rewards as a seat on the final court of one’s nation. in the nature of things, few individuals attain such an office. many lawyers of great ability miss out, by chance or politics or because of factors over which they have no control. in the history of the united states, 105 persons have been appointed to the supreme court including the nine present incumbents. in australia, over the course of a century, 44 justices have been appointed. the responsibilities are accepted freely with a cheerful heart because nobody is obliged to remain in such an office a day longer than he or she wishes. always waiting in the wings are aspirants, many of them worthy. differences in spite of these similarities, there are significant differences between the roles which the final courts play in the united states and australia and the functions of the justices within those courts. appointment and qualifications: the coming into office is quite different. by the united states constitution, the president has the power to appoint judges of the supreme court and all other officers of the united states not otherwise provided for in the constitution. however, the president may only do so with the advice and consent of the senate.50 there is no similar control upon the appointment of judges by the executive government in australia. no australian judicial officer is elected. all are appointed with tenure and independence by the executive government of their jurisdiction federal, state or territory. although the australian senate is one house of the federal parliament,51 that body has no part to play in the appointment of judges. the only parliamentary power with respect to judges is to consider a prayer for 49 austin v the commonwealth (2002) 77 aljr 491; 195 alr 321. 50 us constitution, art i, s 2. 51 australian constitution, s 7. the denning law journal 62 removal and then only on the specified grounds and conditions and within a specified time.52 in the matter of appointments, the executive is untrammelled. by the constitution, appointments to the high court are made by “the governorgeneral in council.”53 the governor-general is the queen’s representative in australia. the council referred to is the federal executive council.54 historically, this is a copy of the queen’s privy council in the united kingdom. but by the australian constitution, it is made up exclusively of ministers of the australian government, together with the governor-general. the governorgeneral has powers substantially to be consulted, to encourage and to warn. like the queen he must, by convention, normally accept the advice of the ministers expressed in the executive council. there are legal requirements relating to the qualifications for office as a justice of the high court.55 however, these hardly reflect the conventional qualifications that are normal for such appointments. usually these are long and high judicial service, experience as a leading barrister or, more rarely, political service. recently, provision has been made in australia by which the federal attorney-general, before an appointment of a new chief justice of the high court or justice, is obliged to consult the states about such appointments. in australia, unlike india,56 this statutory obligation of “consultation” means no more than that. there is no obligation to appoint anyone whom the states nominate. the most that the statutory procedure of consultation achieves is to identify some leading candidates for appointment. the entire process takes place behind closed doors. inescapably and naturally, there is a high degree of political involvement on the part of the federal cabinet and government of the day when a vacancy on the high court of australia falls to be filled. there are no confirmation hearings. indeed, there is no public process at all. there is not even a process of advertisement and formal interview, as is now more common with other judicial appointments in australia. after the recommendation of the federal cabinet has been conveyed to the governor-general (and sometimes even before) the announcement is made by the prime minister or the federal attorney-general. and that is it. despite the apparent success and general acceptance of the procedures for public interview for judicial appointments and promotions in south africa under 52 australian constitution, s 72(ii). 53 australian constitution, s 72(i). 54 australian constitution, s 63. 55 high court of australia act 1979 (aust), s 6. 56 supreme court advocates' association v union of india [1994] airsc 268; [1993] supp 2 scr 659; special reference no 1 of 1998 jt 1998 (5) sc. the denning law journal 63 the post-apartheid constitution, few judges or politicians in australia would favour the introduction of a confirmation process similar to that of the united states. none could be found who would support the system of elected judges, a method of judicial appointment (and removal) apparently difficult to reconcile with true judicial independence.57 the theoretical imperfections of the present system of judicial appointments in australia are raised each time an important appointment is made. and then, the institution closes around the new appointee. he or she gets on with the work. the political process turns to other things. it is rare that this system delivers an inadequate or incompetent appointee. inevitably, governments hope that their appointees will reflect, in a general way, their philosophical viewpoint. they are often disappointed. but this is so both in the united states and in australia. fixed retirement: once appointed, a justice of the high court of australia serves to the age of seventy years unless earlier retiring from, or dying, in office. originally, the australian constitution contained no maximum term of appointment. following the united states precedent it did not take long for the high court to hold that the constitutional silence meant that appointees held office for life.58 this is one of the reasons for the small number of office-holders in both courts. in the early 1970s, in the absence of chief justice barwick, the senior justice, sir edward mctiernan, went to the parliament to administer the oaths of office to the new members. many of the parliamentarians were so shocked at his advanced age (he was then in his eighties) that moves arose to amend the australian constitution to provide for a compulsory retirement age. the constitutional alteration (retirement of judges) proposal was enacted by the federal parliament in 1977. the amendment was then approved by the electors. it attracted the dual majorities required to effect a change of the australian constitution.59 the amendment did not affect the tenure of serving justices. although there is a handful of “lifers” on the federal family court of australia, life tenure has now all but disappeared from the australian judicial 57 international covenant on civil and political rights, art 14.1. 58 in waterside workers' federation of australia v j w alexander ltd (1918) 25 clr 434. 59 the australian constitution, s 128 requires that, to be effective, an amendment of the constitution must be adopted by the federal parliament and approved by a majority of the electors nationwide and in a majority of the states. the proposal to introduce retirement ages for the federal judiciary was approved on 21 may 1977. the nationwide affirmative vote was 78.63%. the amendment was carried in every state. the denning law journal 64 scene as federal judges appointed before 1976 died or retired from office. in most australian states, for many years, judicial tenure was to the age of seventy or seventy-two. few australians, including few judges, are mourners for the passing of life tenure. although some very distinguished judges of the past would have been lost in australia by compulsory retirement, the constitution serves contemporary society. the regular appointment of younger people to a nation’s supreme court is a means of injecting new approaches and new ideas, permitting regular change at the nomination of elected governments and avoiding the spectacle of very old judges serving on beyond their prime or in the hope of holding out until a change of administration. a general appellate court: the high court of australia is a general court of appeal. it hears appeals from judgments and orders of virtually all australian courts state, federal and territory. in this sense, it brings together the entire australian legal system. the work of its justices is not confined to the application of federal law. they decide appeals on purely state law matters having nothing to do with the constitution or federal legislation. this feature of the high court which it shares with the supreme courts of canada and india has two important consequences. first, it places the high court in the mainstream of the general judicial system. it marks the court out as a general court of ordinary law. this means that constitutional and federal questions are typically perceived as an aspect of the law, not as something divorced and different. secondly, this character affects the qualifications essential to perform the functions of a high court justice successfully. it affects the appointees’ self-image. it rubs off on their conception of their own function.60 there is nothing like a few days deciding abstruse questions of state statutory law to bring a constitutional philosopher down to earth. other countries (such as south africa) have followed the european tradition and established a separate constitutional court, with judges appointed for fixed terms. however, the australian court is a court of law in the fullest sense. its role in supervising decisions of state courts is assured by two constitutional provisions. the first is the entrenched power to hear appeals from judgments and orders of the supreme courts of the states and from any other state court from which, at the establishment of the commonwealth, an appeal lay to the privy council.61 as well, a novel provision in the australian constitution permitted 60 o dixon “two constitutions compared” in jesting pilate 100 at 104. 61 australian constitution, s 73(ii). the denning law journal 65 the federal parliament to invest any court of a state with federal jurisdiction.62 this very important power was quickly utilised by the passage of the judiciary act 1903 (aust).63 the growth of federal courts, other than the high court itself, did not take place in australia to any degree until the 1970s when the family court of australia64 and the federal court of australia65 were established. more recently, the federal magistrates court has been created.66 the investing of other courts with federal jurisdiction has been a very successful constitutional idea. it too has reinforced the integration of the nation’s judicature. when a state parliament endeavoured to impose duties on a state supreme court that were challenged as inimical to the exercise of judicial power, the high court of australia found the state law invalid. it held that the australian constitution not only protected the independence of federal courts but, because of the inter-relationship of federal and state courts, it also protected the independence of the latter. as it was put, the state courts were required to be suitable receptacles for the exercise of the federal jurisdiction provided by the constitution.67 this was a case of deriving inferences from the constitution, a process that has occurred in australia throughout the history of federation.68 at the time of federation in australia, the colonial courts were already long established. there were well respected and subject to appeal to the privy council. the evenness of their quality was one of the reasons for the delay in the establishment in australia of a substantial and separate federal judiciary.69 when, eventually, significant federal courts were created to deal with particular aspects of federal jurisdiction deemed specially appropriate for national administration, those courts, in turn, became part of the integrated judiciary that comes together in the high court. in a sense, the facilities of appeal and the vesting of jurisdiction have strengthened the unity and integration of the australian judicature. they have upheld the generally uniform standards of appointment and performance of judicial officers in all australian courts. 62 australian constitution, s 77(iii). 63 judiciary act 1903 (aust) ss 39, 39a, 64, 68, 79, 80. 64 family law act 1975 (aust), s 21. 65 federal court of australia act 1976 (aust), s 5. 66 federal magistrates act 1999 (aust). 67 kable v director of public prosecutions (nsw) (1996) 189 clr 51. 68 eg lange v australian broadcasting corporation (1997) 189 clr 520. 69 re wakim; ex parte mcnally (1999) 198 clr 511 at 605 [200]. the denning law journal 66 a national common law: in consequence of this judicial integration, australia has rejected the notion of a separate federal common law or separate systems of common law for each of the polities making up the federation. instead, the high court has held that there is a single, uniform common law applicable throughout the nation. ultimately, it is susceptible to ascertainment and exposition by the high court itself.70 the notion of a single australian common law, modified by local state and territory legislation, involves some theoretical difficulties.71 in the united states, each state has its own common law as expounded by its own courts.72 the australian insistence upon a single body of the common law has been strongly affirmed in recent decisions of the high court.73 the constitutional foundation for this doctrine lies in the unifying role of the high court as the sole final court of appeal of australia. the commonwealth connection: that function of the high court as the final appellate court is comparatively recent. at the outset of federation, appeals lay to the privy council in london both from the high court of australia itself and from state supreme courts. the larger facility for privy council appeals was one of the few amendments upon which the british government insisted when it was presented with the constitution drafted by the australian constitutional conventions of the 1890s. there were two derogations from the privy council’s jurisdiction envisaged by the constitution. the first, demanded by the colonists, was that appeal would only lie to the privy council on constitutional questions as to the respective powers of the commonwealth and the states if a certificate to allow such an 70 r v kidman (1915) 20 clr 425. lange v australian broadcasting corporation (1997) 189 clr 520. indeed, earlier it was commonly stated that there was but one common law applicable throughout the entire british empire as pronounced by the courts of england: cf o dixon “two constitutions compared” in jesting pilate 100 at 104-105. 71 l j priestley, “a federal common law in australia?” (1995) 6 public law review 221. 72 erie railroad coal v tompkins 304 us 64 (1938). 73 lipohar v the queen (1999) 200 clr 485; john pfeiffer and son pty ltd v robertson (2000) 203 clr 503; regie nationale des usines renault sa v xhang (2002) 76 aljr 551; 187 alr 1. the denning law journal 67 appeal was granted by the high court.74 in the history of federation, only one such certificate was ever granted.75 many were refused. as well, provision was included in the australian constitution for the federal parliament to make laws “limiting matters in which” leave to appeal to the privy council might be granted.76 eventually, appeals from the high court and federal courts were “limited” under this provision to the extent of abolition.77 the validity of such “limitation” was upheld.78 in due course, the direct appeals from the state supreme courts were also abolished.79 this was done by concurrent legislation of the australian federal and state parliaments and the united kingdom parliament. the laws were symbolically given the royal assent by the queen personally during a visit to canberra. normally such assent is given by the governor-general or governor in the queen’s name. there is now no external or higher court for australian judicial decisions beyond the high court of australia. inevitably, this change in the function of the high court from one subordinate in most matters to the privy council to a court of final appeal has brought the high court closer to a perception of its functions similar to that of the supreme court of the united states. having myself sat both in a final appellate court and one subject to further appeal, i know the difference. the change in status of the high court was quickly followed by a period of significant creativity on the part of the court during the years in which chief justice mason presided.80 if, in more recent years, the creativity of the court has diminished, this is no more than a normal feature of the way common law courts tend to operate in fits and starts, rather than at a uniformly steady pace. given the character of other final appellate courts throughout the world, it seems unlikely that the high court of australia will, in the long term, revert to the rather limited view of its functions held by australian judges and lawyers during the time when the court was subject to privy council supervision. whilst some lawyers in australia still hanker for a return to those “good old days”, the example of the supreme court of the united states indicates the necessity and inevitability of the creative function of an ultimate court of a nation having 74 australian constitution, s 74. 75 deacon v webb (1904) 1 clr 585; baxter v the commonwealth (1907) 4 clr 1178. the only certificate ever granted was in attorney general (commonwealth) v colonial sugar refining co ltd [1914] ac 237; 17 clr 644. 76 a r blackshield “the abolition of privy council appeals” in a r blackshield and g williams, australian constitutional law and theory (3rd ed, 2002), 570. 77 by legislation culminating in the australia acts 1986 (aust)(uk), s 11. 78 kirmani v captain cook cruises pty ltd [no 2] (1985) 159 clr 461 at 464. 79 australia act 1968 (aust) (uk), s 11. 80 sir anthony mason was chief justice of australia from 1987 to 1995. the denning law journal 68 constitutional responsibilities.81 such creativity, harnessed to legal authority, is the essential characteristic of all common law courts. those who dispute this fact must explain where the great body of the common law came from if not from judicial invention. on the whole, the link of the high court of australia to the privy council was not an onerous burden on the court’s judicial performance. in colonial days especially that link saved the australian legal system from parochialism that might otherwise have afflicted it.82 by affording the facility of appeal in a small number of cases to the judges of england who sat in the privy council, that body provided a wealth of comparative law doctrine, largely drawn from english court decisions, that greatly enriched australian law. now, australian courts are not bound by any foreign judicial decision. for the moment, australian courts observe privy council decisions given in australian appeals during the time when that court was part of the australian judicial hierarchy.83 yet the termination of this last formal link has brought an even greater flowering of comparative law material into the australian courts. it is now extremely rare for the high court of australia to decide any major issue of constitutional or common law without examining the way in which similar issues have been dealt with in other like common law countries, particularly the united kingdom, the united states and canada. on the other hand, an examination of united states decisions indicates the contrast that exists in the higher english, canadian, new zealand, south african, indian and other courts of the commonwealth of nations where there is a much greater inclination to look outwards for analogies and reasoning. such sources frequently prove of great advantage to the performance of the judicial task. in the united states, there are more than fifty home jurisdictions. they serve a single nation. but in the post-imperial world of commonwealth countries, it is a great strength of the common law technique, as now practised, that judges are accustomed to, and comfortable with, the citation of judicial opinions, written in the same language, tackling similar questions in different countries. parochialism is a common problem for lawyers. it is reinforced by jurisdictionalism which is an inescapable aspect of lawyering. the contemporary common law affords a treasure house of readily available analogies. these are now available through the internet. they greatly enrich judicial performance in countries such as my own. 81 h luntz “throwing off the chains: english precedent and the law of torts in australia” in m p ellinghaus & ors the emergence of australian law (1989), 70. 82 f c hutley “the legal traditions of australia contrasted with those of the united states” (1981) 55 australian law journal 63 at 68. 83 cook v cook (1986) 162 clr 376 at 390. the denning law journal 69 absence of a bill of rights: the australian constitution does not include a general bill of rights. the founders of the commonwealth shared james madison’s initial opinion that it was impossible to define the rights of the people. it is not true to say that the australian constitution contains no rights provisions. however, they are limited. as in the case of the right of jury trial, they have sometimes been the subject of restricted interpretations.84 most modern constitutions contain charters of fundamental rights. where they do not, statements of rights have frequently been added. thus, the canadian charter of rights and freedoms was adopted in 1982.85 even in the united kingdom, for half a century, the law has been subject to scrutiny in accordance with the european convention on human rights.86 since 2000, the human rights act 1998 (uk) has rendered many human rights issues justiciable in the courts of britain. australia is one of the last civilised nations not to have such a charter. the conventional source of the opposition, particularly amongst politicians, is that bills of rights introduce needless inflexibility into law-making and enhance judicial power at the expense of democratic accountability. the absence of a general bill of rights does not mean that the high court of australia is totally incapable of defending basic civil liberties when they are threatened by intrusive legislation or governmental action. sometimes, express provisions of the constitution have been enlisted to strike down federal legislation affecting the compulsory acquisition of private property87. sometimes federal legislation is found invalid, as was the attempt to dissolve the australian communist party in 1950. that law failed for want of an appropriate foundation in federal legislative power.88 the decision of the high court of australia in that footnote continues 84 kingswell v the queen (1985) 159 clr 264. there has been a similarly narrow reading of s 116 of the australian constitution concerning freedom of religion: attorneygeneral (vict); ex rel black v the commonwealth (1981) 146 clr 559. 85 the canadian charter was preceded by the canadian bill of rights 1960 (can). see m r wilcox an australian charter of rights? (1993) 28-36. 86 see eg dudgeon v united kingdom (1981) 4 ehrr 149; (1983) 5 ehrr 573. for a description of the different ways in which issues of rights are addressed in the two legal systems see m d kirby, “law and sexuality: the contrasting case of australia” 12 stanford law & policy review 103 (2001). 87 bank of new south wales v the commonwealth (1948) 76 clr 1 (“bank nationalisation case”). 88 australian communist party v the commonwealth (1951) 83 clr 1. this may be contrasted with ex parte quirin 317 us 1 (1942) upholding trial of alleged saboteurs in wartime by a military commission not the civilian courts. see g e white, “felix the denning law journal 70 case stands in marked contrast to the contemporary decision of the supreme court of the united states involving the constitutional validity of similar provisions contained in the smith act. despite the express guarantees of freedom of speech and freedom of association in the united states constitution,89 the supreme court of the united states, by majority, upheld the severe civil restrictions imposed by congress on communists.90 this ironic outcome of two constitutional challenges demonstrates that liberty sometimes depends upon more than constitutional texts. constitutional implications: in recent times, the high court of australia has found implications of rights in the constitutional text, including of an irreducible freedom in certain circumstances to discuss matters of politics and government.91 this lastmentioned freedom was found to be implied in the representative electoral democracy established by the australian constitution.92 without such a freedom, it was held, the democratic elements of the constitution would be defeated or reduced to a charade. other cases have suggested that an inference should be derived from the independent judicature established by the constitution to support an implied constitutional guarantee of due process of law93 and of unbiased judges.94 these insights have not yet won a majority amongst the present justices. apart from the constitutional guarantees, liberty is protected in australia by the strong presumption that legislation does not reduce fundamental civil rights, frankfurter's soliloquy in ex parte quirin”, 5 green bag (2nd series), 423 (2002); cf lloyd v wallach (1915) 20 clr 299. 89 us constitution, first amendment. 90 dennis v united states 341 us 494 (1951). 91 nationwide news pty ltd v wills (1992) 177 clr 1; australian capital television pty ltd v the commonwealth (1992) 177 clr 106; theophanous v herald and weekly times ltd (1994) 182 clr 104. 92 lange v australian broadcasting corporation (1997) 189 clr 520. 93 polyukovich v the queen (1991) 172 clr 501 at 607-612, 703, cf 532, 689; leith v the commonwealth (1992) 174 clr 455 at 484-488, 501-502; cf at 466-469; see parker, “protection of judicial processes and implied constitutional principles” (1994) 16 adelaide law review 341. 94 ebner v official trustee (2001) 205 clr 337 at 363 [81]-[82]; 362-373 [114]-[117]; cf tumey v ohio 272 us 510 (1927). the denning law journal 71 unless such a purpose is clearly and unmistakenly expressed in valid legislation.95 australia does not have the same constitutional protections for free expression as exist under the first amendment, as interpreted by the supreme court of the united states.96 however, this is, in part, due to a different balance that has been struck by legislation (and by the common law) between free speech values and values protective of other important attributes of human dignity such as honour, reputation and privacy. these competing values also appear in international human rights instruments.97 they represent human rights deserving legal protection as much as the human right to free expression. most australians, and most australian judges (although not the australian media) consider that the balance struck by united states judicial authority on this subject is somewhat extreme.98 the interface between the united states approach and that of australian law has come to the fore in recent decision of the high court of australia concerning a publication about an australian citizen uploaded on the internet in the united states but downloaded to do its principal damage and hurt to reputation in australia, where the plaintiff lived.99 the absence of a formal bill of rights in the australian constitution has tended to reinforce the view that most of the high court justices have held about their role. it has tended to emphasise legalism and to diminish a creative and adaptive spirit that usually accompanies judicial interpretation of the language of a constitutional bill of rights. although there are sporadic suggestions that australia should adopt a constitutional bill of rights,100 an attempt to include basic rights in the federal constitution was overwhelmingly rejected in a constitutional referendum held in 1988.101 given the australian record on footnote continues 95 bropho v western australia (1990) 171 clr 1 at 20; durham holdings pty ltd v new south wales (2001) 205 clr 399 at 414-415 [27]-[31]; the daniels corporation international pty ltd v australian competition and consumer commission (2002) 77 aljr 40; 192 alr 561. 96 eg new york times co v sullivan 376 us 254 (1964); rosfenbloom v metromedia 403 us 29 (1971); gertz v robert welch, inc 418 us 323 (1974). 97 eg international covenant on civil and political rights, arts 17 (privacy, honour and reputation), 19 (freedom of opinion and expression). 98 australian broadcasting corporation v lenah game meats pty ltd (2002) 208 clr 199 at 282-283 [199]-[202]. 99 dow jones inc v gutnick (2003) 77 aljr 255; 194 alr 433. 100 discussed in d harris, a new constitution for australia (2002); see also human rights the australian debate (1987); m r wilcox, an australian charter of rights? (1993). 101 pursuant to the australian constitution, s 128. a proposal to incorporate “one vote one value” was rejected by a majority of the electors in every state and secured a national the denning law journal 72 achieving formal constitutional change102 (which is as conservative in this respect as that of the united states), the prospect of a constitutional bill of rights for australia in the short term seems remote. more likely is it that individual states and territories, and eventually the federal parliament, will enact general human rights legislation out of which, in the long term, a successful constitutional amendment may emerge. it will not be soon. use of international law: partly as a consequence of the last consideration, there has been a tendency in recent years to look to international human rights law to inform the development of australia’s domestic law. in 1988, i suggested that this was a development with a large potential.103 at the time, my suggestion was regarded as legal heresy. eventually, the high court of australia accepted the possibility that international human rights instruments, to which australia was a party, might influence the development of the common law. this occurred in an important decision of the high court of australia, delivered before my appointment, reversing more than a century of judicial decisions denying recognition of the claims of australia’s indigenous peoples to legal interests in their traditional land.104 more recently, i have suggested that the australian constitution itself should be read, in the event of ambiguity, so as to avoid departures from the fundamental norms of international law, specifically in the area of human rights.105 for some time, this approach remains controversial.106 however, there affirmative vote of only 37.10%; cf mcginty v western australia (1996) 186 clr 140. a proposal to include guarantees of trial by jury, religious freedom and just terms in matters of state concern was rejected in every state and secured an aggregate national affirmative vote of only 30.33%. 102 in 103 years, 44 proposals have been put to the australian electors for the amendment of the australian constitution. only 8 have succeeded: a r blackshield and g williams australian constitutional law and theory (3rd ed, 2002), 1301. 103 m d kirby “the australian use of international human rights norms: from bangalore to balliol a view from the antipodes” (1993) 16 university of nsw law journal 363; m d kirby, “law, like the olympics, is now international but will australia win gold?” (2000) 7 james cook uni l rev 4 at 13-15. 104 mabo v queensland [no 2] (1992) 175 clr 1 at 42. 105 newcrest mining (wa) ltd v the commonwealth (1997) 190 clr 513 at 655-657 (acquisition of property); kartinyeri v the commonwealth (1998) 195 clr 337 at 417419 [166]-[167] (racial discrimination). see also wilson v minister for aboriginal and torres strait islander affairs (1996) 189 clr 1 at 40 (separation of judicial powers). the denning law journal 73 are reflections of it in the recent decisions of the supreme court of the united states.107 some australian judges and lawyers would probably agree with the spirit of the dissenting opinions of justice scalia in those cases.108 however, the adjustment of municipal law to avoid disharmony with international law is a challenge that final courts of appeal everywhere will have to face in the course of the present century. the last words on this subject have not been written. interpretation of original intent: in australia, as in the united states, there have been lively debates, concerning the extent to which the interpretation of the written text of the constitution is governed by the original intent of the founders or whether the text is released from their intentions, the task being one of finding the meaning of the constitution, “set free” from the assumptions and purposes of those who wrote it109 in the united states, possibly because of the revolutionary origins of the constitution, the diversity of the country, the size of the population and the disparity of its legal organisation, many have felt, with thomas jefferson, that “the country’s peculiar security is in the possession of a written constitution.” the constitutional text in the united states has attracted much greater reverence than the australian document has done. one has a feeling that much more attention is given in the united states to the historical facts as they existed at the time between 1787 and 1788 when the constitution was adopted expressing the basic beliefs and values of those who had declared their independence from britain110. although, in australia, it is common for the high court to examine understandings about the language of the constitution, held when the document was drawn up111, and specifically to scrutinise the debates in the conventions that footnote continues 106 k walker “international law as a tool of constitutional interpretation “ (2002) 28 monash university law review 83; l johns, “justice kirby, human rights and the exercise of judicial choice” (2001) 27 monash university law review 290. 107 atkins v virginia 536 us 000 (2002) per stevens j (fn); 122 sct 2242 (2002); lawrence v texas (2003). 108 536 us 000 (2002) at 000 per scalia j, 122 sct 2242 (2002). he had expressed like views in stanford v kentucky 492 us 361 at 369 fn 1 (1989); cf kartinyeri v the commonwealth (1998) 195 clr 337 at 383-386 [95]-[109]; ams v aif (1999) 199 clr 160 at 180 [50]; cf 218 [168]-[169]. 109 andrew inglis clark studies in australian constitution law (1901), 21 cited in re wakim; ex parte mcnally (1999) 198 clr 511 at 600-601. 110 see eg dred scott v sandford 60 us 393 at 407-408 (1857) per taney cj. 111 cf grain pool of western australia v the commonwealth (2000) 202 clr 479 at 523 [111]. in that case much attention was paid to the provisions of the us constitution art the denning law journal 74 preceded the adoption of the constitution (a course which until recently was regarded as impermissible),112 it is generally recognised that the elucidation of constitutional meaning involves more than a purely historical exercise. in a sense, this recognition has been reinforced by the rigidities of the australian constitution and the difficulty of securing its formal amendment. a good illustration of adaptation of the meaning of constitutional words in australia may be found in the decision of the high court in sue v hill.113 there, the question involved the meaning of a provision in the constitution excluding from election to the federal parliament any person who was “a subject or a citizen … of a foreign power.” there could be no doubt that, in 1900 when the australian constitution was adopted, the united kingdom would not have been regarded as a “foreign power”. there are too many references in the constitution to the united kingdom, and to the status of subjects of the crown,114 to attribute such a meaning to the text. nevertheless, at the end of the twentieth century, the high court held that a person who was a citizen of the united kingdom was disqualified from election to the australian federal parliament whilst she retained that separate citizenship. in short, she was a “citizen of a foreign power”. the result was one that would have struck the founders of the australian commonwealth as astonishing. the notion that the high court should give meaning to the constitution strictly in accordance with the original intent of the founders is not one that accords with the overall practice of the high court of australia.115 nor, in my view, is it one appropriate to constitutional interpretation in a final court with those responsibilities. diversity and opinion writing: there are differences in matters of detail in the work of the two supreme courts. my court has not adopted the style, followed in the united states supreme court, by which an opinion of the court is written by a single justice assigned by the chief justice or, if he is in a minority, by the senior associate justice. although unanimous opinions are sometimes achieved in the australian i, s 8, cl 8 that sustain patents of invention, the expression in the australian constitution, s 51(xviii). see ibid, at 479-480 [28]-[32], 532 [134]. 112 cole v whitfield (1988) 165 clr 360 at 385-390. 113 (1999) 199 clr 462. 114 eg australian constitution, ss 34(i), 117. 115 m d kirby “constitutional interpretation and original intent a form of ancestor worship?” (2001) 24 melbourne university law review 1; j kirk, “constitutional interpretation and a theory of evolutionary originalism” (1999) 27 federal law review 323. the denning law journal 75 high court, including in important constitutional cases,116 ordinarily, the arrangements for the writing of opinions are much more informal. a system of formal consultation after hearings has been introduced in recent times. however, there continue to be large numbers of separate concurring and dissenting opinions. this has long been the tradition of the english courts, other than the judicial committee of the privy council. in australia, the inclination of judges to join in the opinions of their colleagues varies over time, depending, in part, on personal relations and shared legal and philosophical viewpoints. in effect, multiple opinions enhance the creative element in the law. they respect the independence of individual justices. on the other hand, they can sometimes obscure the binding rule for which a court’s decision will stand. they sometimes create inefficiency and uncertainty in the judiciary and legal profession.117 the united states practice, introduced by chief justice marshall, has much to commend it. there are similar practices in intermediate appellate courts in australia. but, so far, the practice has not been copied in the high court of australia. another precedent that has not been copied is that of the reported practice of some justices of the supreme court of the united states in delegating to clerks the writing of a first draft of judicial opinions. i am not aware that this has ever occurred in the case of a justice of the high court of australia, although the clerks (“associates”) are often asked to perform particular tasks of legal research and to provide comments and criticisms upon the first draft prepared by the justice. in the 1930s, justice brandeis remarked that the reason why the justices of the supreme court enjoyed such a high reputation in washington was that “we are the only people who do our own work”.118 inflexibility in the adherence to the ways of the past is not necessarily a matter for pride. i have long thought that common law courts should study the procedures of some courts of the civil law tradition in which a greater part of the writing of the facts, analysis of the issues and the presentation of the synthesis of the arguments could be performed by officials. this would leave to the justices the truly difficult task of decisionmaking. traditionalists oppose such suggestions, pointing out, correctly, that the presentation of the facts and issues in a case can sometimes profoundly affect the 116 eg cole v whitfield (1988) 165 clr 360; lange v australian broadcasting corporation (1997) 189 clr 520. 117 c moisidis, “achieving world's best practice in the writing of appellate judgments” (2002) 76 law institute journal (victoria), 30 at 32. 118 justice brandeis quoted c e wyzanski “the law of change”, lecture at university of mexico school of law (1968) cited in m d kirby the judges, (1983), 41 (boyer lectures 1983, 25-26). the denning law journal 76 outcome of the case. however, as the workload of courts increases and substantial numbers of important cases are remitted to other decision-makers for arbitration, mediation or assessment, it may eventually become necessary (even in a final court) to reconsider some of the familiar ways of doing things. for the time being, in the australian high court, we remain resolutely tied to the traditional ways. conclusions five influential ideas: a reflection on the similarities and differences between the high court of australia and the supreme court of the united states will indicate that the similarities are profound and predominate. the differences are less so. both courts serve vibrant, democratic societies and advanced economies. both share the heritage of the common law. both courts uphold federal constitutional arrangements in independent judicial institutions whose orders are obeyed without question and without, for the most part, any need of physical enforcement. of the five great legal ideas of the founders of the united states of america four, at least, have proved successful exports. one, the executive presidency, combining the roles of head of state, head of government and commander in chief, has not been widely adopted. australia, like a majority of countries, continues to follow the system of responsible, cabinet government. virtually no one in australia suggests a change in this respect. to most outsiders the american model seems, in this respect, a flawed system, overly influenced by the example of the centralised monarchy of king george iii in 1776119 and too little reflective of the modern needs for collective government with general harmony between the branches of government, difficult to achieve under the united states constitution.120 the constitutional monarch continued to evolve after 1776. the evolution did not affect the united states constitution. the republican idea, on the other hand, has been highly successful. although australia remains a constitutional monarchy,121 most other nations since 1776 119 o dixon “government under the american constitution”, in jesting pilate 106 at 111. 120 o dixon “two constitutions compared” in jesting pilate, 100 at 101. 121 a referendum for the alteration of the australian constitution to create a republic was put to the electors on 6 november 1999. the affirmative national vote was 44.74% with 54.40% against. the referendum did not secure a majority in a single state: it therefore failed to pass. see g williams, “why australia kept the queen” (2000) 63 saskatchewan law review 477. the denning law journal 77 have abolished their monarchies. even constitutional monarchies embrace the civic ideals of republicanism. they retain the symbols of monarchy as useful further checks on the abuse of elected power.122 but, in their essential character, they are republics. the bill of rights idea, quickly incorporated into the original amendments to the united states constitution, has also proved a powerful influence not only in national constitutions but in the growing number of international instruments that uphold fundamental rights economic, social and cultural as well as civil and political. australia remains outside the systems of national and regional human rights charters. but it is a party to and its law is influenced by the many international human rights treaties to which it has subscribed. the federal idea was the most complex of the innovations of the american founders. a number of federal states, including some created after the end of british colonial rule, have collapsed.123 others have proved unstable. yet on the whole the federations of the united states and australia (and of canada, india and elsewhere) have been successful examples of the division and decentralisation of legal and political power. there is an inherent tension between federalism and responsible government which is still being played out in australia. but it is difficult to imagine how nations of the physical size of australia or the united states could have been successfully, justly and efficiently governed without adopting a federal system. for it, australians are indebted to the american model whose division of governing powers largely shaped their own. the greatest constitutional export after the american revolution of 1776, and the settlement that followed it, has been the establishment by a written constitution of an independent judicature with defined powers as the ultimate arbiter of constitutionalism and defender of the rule of law. in australia, this precedent was faithfully followed. the high court of australia was created, substantially, to play the part that the supreme court plays in the united states. in a sense, the high court of australia, like other courts of many later nations, has built upon the great traditions of the united states court. it continues to do so. in every country, but particularly every federal country, the ideas written by chief justice marshall in 1803 in marbury v madison124 continue to inform 122 cf o dixon “the law and the constitution” in jesting pilate 40-41. 123 eg the original pakistan; the central african federation and the original malaysian federation (including singapore). the soviet union, czechoslovakia and yugoslavia were also federal states that broke up in recent years. nigeria fought off the separation of biafra to survive intact, just as the united states did in its civil war. 124 1 cranch (5 us) 137 (1803). the denning law journal 78 decisions about the concept of the judicial role in a modern state. the export of these ideas, and many others inherent in them, are abiding contributions of the judges and lawyers of the united states to constitutionalism as it continues to develop in all parts of the world. global constitutionalism: the end of this story is not yet written. future chapters may reveal that some of the younger nations, that borrowed many of the governmental ideas nurtured in the united states, came in time to repay part of their debt. in today’s world, more than before, we can, and should, learn from each other, even in matters of constitutional law. in a sense, this is another american idea that the imperialism of power and money gives way, in the end, to the liberty of shared experience and the unstoppable influence of new ideas. the high court of australia and the supreme court of introduction similarities differences conclusions case commentaries the denning law journal 221 case commentary r (on the application of begum) v headteacher and governors of denbigh high school hl [2006] ukhl 15, [2006] all er (d) 320 (mar), (approved judgment) the jilbab controversy susan edwards* the facts on march 22nd 2006, the house of lords allowed an appeal by the defendant school, denbigh high school in luton and ruled that the school’s uniform policy which disallowed a particular variation of islamic dress the “jilbab” (a long sleeved floor length loose fitting tunic dress) did not amount to an interference with the respondent’s right to manifest her religion.1 denbigh high school’s, school uniform, for those who were of the islamic faith was in the form of the “shalwar kameeze” (a tunic and a particular style of shaped trousers). this uniform variation was worn by those muslim girls who wished to wear it and was also worn by non-muslim girls of hindu and sikh faiths who attended the school. shabina begum had attended the school since the age of eleven years and had worn the shalwar kameeze. when she was thirteen she no longer wished to wear the shalwar kameeze, instead she said she wanted to wear a jilbab which she maintained was “the appropriate” dress code for a muslim woman after puberty. moreover, she refused to attend school unless she could wear this form of dress. the facts are set out in the house of lords judgement: “on 3 september 2002, the first day of the autumn term, the respondent (then aged nearly 14 years) went to the school with her brother and another young man. they asked to speak to the head teacher, who was not available, and they spoke to the assistant head teacher, mr moore. they insisted that the respondent be * ba (cnaa ), ma , phd (manc), llm (reading), professor of law, deputy dean of law, university of buckingham; barrister, (door tenant) clarendon chambers 1 plowden buildings temple, london ec4y 9bu. 1 r (on the application of begum) v headteacher and governors of denbigh high school hl [2006] ukhl 15, [2006] all er (d) 320 (mar), (approved judgment). the denning law journal 222 allowed to attend the school wearing the long garment she had on that day, which was a long coat-like garment known as a jilbab.”2 the school refused to allow her to attend unless she wore either the regular school uniform or the shalwar kameeze, and in december 2002, the school together with the local education authority sought independent advice from muslim experts regarding whether the shalwar kameeze as a variation of the school uniform ‘offended’ against the islamic dress code. two mosques in luton, the london central mosque trust and the islamic cultural centre advised that the shalwar kameeze did not offend and conformed with the islamic dress code. on behalf of shabina begum opinions were sought from three sources (two of these were imams who had been previously consulted by denbigh high school) on the merits of the jilbab. they all maintained that the jilbab was “the appropriate dress for mature muslim women.”3 this information was passed on to the appellants, who refused to accept that this was “the appropriate” dress for women, and in september 2003 the education welfare service offered to help her find a place at another school if that was what she wanted. in the same month, the school received a statement made by the muslim council of britain on the “dress code for women in islam” which stated “there was no recommended style; modesty must be observed at all times; trousers with long tops or shirts for school wear were ‘absolutely fine’.”4 shabina begum felt that she was being effectively excluded by not being allowed to attend school dressed in the jilbab, whilst the school, on the other hand, considered that they were not excluding her since a school place was available if she wore the shalwar kameeze. in october 2003, a committee of the school governors met and gave a lengthy decision upholding the head teacher's decision which required her to wear the school uniform or the prescribed variation of it. the high court shabina begum, issued her claim for judicial review on february 13, 2004 for leave first, to challenge the decision of the head teacher and the governors not to her admit if she insisted on wearing the jilbab and second, to challenge the consequence of this which was that luton borough council was not providing her with education. leave was granted but only to challenge the decision of the head teacher and governors. shabina also 2 ibid per lord bingham, at para 10. 3 ibid at para 15. 4 ibid at para 15. the denning law journal 223 contended that not allowing her to wear her preferred form of islamic dress amounted to excluding her from school, and contravened article 9(1) of the european convention for the protection of human rights and fundamental freedoms 1950 (as set out in schedule 1 to the human rights act 1998). article 9 asserts: “1. everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society . . . for the protection of the rights and freedoms of others.” she argued that by not being allowed to wear the jilbab in school violated her right not to be denied education under art 2 of the first protocol to the convention, which states: “no person shall be denied the right to education. in the exercise of any functions which it assumes in relation to education and to teaching, the state shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” bennett j5 in the high court held, that there was no breach of article 9(1) because “she was excluded for her refusal to wear the school uniform and not because of her religious belief.”6 in respect of the limitations bennett j held, “in my judgment the school uniform policy and its enforcement has, and continues to have, a legitimate aim and is proportionate. the legitimate aim was the proper running of a multi-cultural, multi-faith, secular school. the limitation was also proportionate to the legitimate aim pursued.”7 in interpretation of art 2 bennett j was informed by a v headteacher and governors of lord grey school8 (a case which involved the exclusion of abdul hakim from the lord grey school during the pendancy of criminal proceedings against him), stanley burnton j who heard the a case on transfer to the high court, rejected a’s claim that his right to education had been violated: 5 the times, june 18, 2004, [2004] ewhc 1389. 6 hl at para 74. 7 hl at para 91. 8 [2003] 4 all er 1317. the denning law journal 224 “…it has to be borne in mind that the duty created by art 2 of the first protocol is imposed on the state, and not on any particular domestic institution. it does not create a right to be educated in any particular institution or in any particular manner. expulsion from a school of a pupil who has no access to alternative educational facilities, such as enrolment in another school or education through a pupil referral unit, may cause a breach of art 2 of the first protocol, and if so, the school authority may be liable for damages; but if the pupil is able to have access to efficient education elsewhere, no breach of his convention right will be involved. if the cause of the unavailability of alternative efficient education is the action or inaction of the local education authority, on whom duties are imposed by ss 13 and 19(1) of the 1996 act, it will be the local education authority, rather than the school authority, that will have caused the infringement of the pupil's rights under art 2 of the first protocol. if suitable and adequate alternative educational facilities are available, but the pupil's parents decide that their child should not use them, then the local education authority will in general not have caused an infringement of art 2 of the first protocol.”9 this argument appears to have been relied upon on by the high court and the house of lords when they accepted that shabina begum had access to other schools and was therefore not denied access to education. the high court held that there would be no interference with the right under art 2 of the first protocol unless there had been an exclusion on the grounds of religious belief. the court held that the right to be educated meant: “the right to be educated, not to be educated at a particular school.”10 shabina begum’s claim for judicial review against the defendant denbigh high school was therefore dismissed. the court of appeal the court of appeal, (lord justices brooke, mummery, and scott baker)11 decided differently from bennett j in the high court and made a declaration that art 9 had indeed been infringed on the grounds that shabina begum’s freedom to manifest her religion or belief in public was being 9 ibid at 1337f, para 83. 10 ibid at para 97. 11 the times, march 4, 2005; [2005] 1wlr 3372. the denning law journal 225 limited. the court of appeal also held differently on where the burden of proof lay. their view was that the burden rested on the school to justify its limitation on her freedom. the court of appeal also found that the school had excluded her without following the correct procedures. brooke lj said: “the school undoubtedly did exclude the claimant. they told her, in effect: 'go away, and do not come back unless you are wearing proper school uniform'. they sent her away for disciplinary reasons ... and she was unable to return to the school for the same reason.” 12 the court of appeal elaborated upon what it considered the appropriate decision making structure13 (with which the house of lords disagreed) which started out from the premise, “…that the claimant had a right which is recognised by english law, and that the onus lay on the school to justify its interference with that right.”14 the court of appeal went on to say that if the school had approached the issue from the position that the claimant had a right under art 9(1) they may well have concluded that interference under art 9(2) was justified.15 scott baker lj, went on to say, “…there is in my view force in the criticism that it is not for the school authorities to pick and choose between religious beliefs or shades of religious belief.”16 mummery lj said, (in contradistinction to bennett j in the high court): “it is irrelevant to the engagement of article 9 that the claimant could have changed to a school which accommodated her religious beliefs about dress.”17 the court of appeal relied on kokkinakis v greece,18 which held that: “bearing witness in words or deeds is bound up with the existence of religious convictions…”19 the house of lords the house of lords (per lord bingham of cornhill, lord nicholls of birkenhead lord hoffmann, lord scott of foscote, and baroness hale of richmond) upheld the decision of bennett j in the high court and held that art 9(1) the right to hold religious belief was inviolable, and that there had been no interference with the right to hold and manifest one’s religion (lord 12 ibid [2005] 3378h-3379a, at para 24. 13 ibid per brooke lj 3390ab, at para 75. 14 ibid per brooke lj 3390c, at para 76. 15 ibid per scott baker lj 3393cd, at para 92. 16 ibid 3393e, at para 93. 17 ibid 3391h, at para 84. 18 (1993) 17 ehrr 397, at paras 31-32. 19 ibid. the denning law journal 226 nicholls of birkenhead and baroness hale of richmond dissenting). lord bingham said: “the fundamental importance of this right in a pluralistic, multi-cultural society was clearly explained by my noble and learned friend lord nicholls of birkenhead in r (williamson) v secretary of state for education and employment [2005] ukhl 15, [2005] 2 ac 246, paras 15-19, and by the south african constitutional court in christian education south africa v minister of education [2001] 1 lrc 441, para 36. this is not in doubt. as pointed out by my noble and learned friend in para 16 of the passage cited, article 9 protects both the right to hold a belief, which is absolute, and a right to manifest belief, which is qualified.” 20 lord nicholls of birkenhead and baroness hale of richmond dissented and found that there had been interference with respect to that part of art 9(1) – the right to manifest belief although they held that the limitation of that right was justified under art 9(2) “for the protection of the rights and freedoms of others.” the house of lords (lord nicholls and baroness hale dissenting) also found that art 2 had not been breached because the school’s uniform policy was to be obeyed and if the claimant did not like it, she could go to a different school.21 lord nicholls said: “your lordships' reasons are twofold: (1) the school's refusal to allow shabina begum to wear a jilbab at school did not interfere with her article 9 right to manifest her religion and, even if it did, (2) the school's decision was objectively justified. i agree with the second reason. i am not so sure about the first. i think this may over-estimate the ease with which shabina could move to another …school.” 22 baroness hale said: “i too agree that this appeal should be allowed. most of your lordships take the view that shabina begum's right to 20 r (on the application of begum) v headteacher and governors of denbigh high school hl [2006] ukhl 15, [2006] all er (d) 320 (mar), (approved judgment) para 20. 21 ibid at para 24. 22 ibid at para 41. the denning law journal 227 manifest her religion was not infringed because she had chosen to attend this school knowing full well what the school uniform was. it was she who had changed her mind about what her religion required of her, rather than the school, which had changed its policy. i am uneasy about this.” 23 [and] “i am therefore inclined to agree with my noble and learned friend, lord nicholls of birkenhead, that there was an interference with shabina begum's right to manifest her religion.”24 the house of lords then went on to consider what constituted an interference within the meaning of art 9(2) and whether any interference was justified. in considering the matter of interference the house of lords endeavoured to apply the strasbourg jurisprudence in what they considered “a reasonable way”25 citing kala v turkey,26 which held: “art 9 does not protect every act motivated or inspired by a religion or belief. moreover, in exercising his freedom to manifest his religion, an individual may need to take his specific situation into account.”27 applying too, sahin v turkey,28 and ahmad v united kingdom29 which held: “. . . the freedom of religion, as guaranteed by article 9, is not absolute, but subject to the limitations set out in article 9(2). moreover, it may, as regards the modality of a particular religious manifestation, be influenced by the situation of the person claiming that freedom.”30 strasbourg jurisprudence on art 9 had engaged a wide range of issues and from several and very different european countries and in each case the court concluded that there had been no interference.31 23 ibid at para 92. 24 ibid at para 93. 25 ibid at para 25. 26 (1997) 27 ehrr 552. 27 hl at para 27. 28 application no 44774/98, 10 november 2005, unreported. para 105. 29 (1981) 4 ehrr 126, at para 11. 30 hl at para 86. 31 in denmark, x v denmark (1976) 5 dr 157, considered the question of the right of clergyman to leave the church, and kjeldsen, busk madsen and pedersen v denmark (1976) 1 ehrr 711, considered parent’s religious objection to sex education. the uk case of ahmad v united kingdom (1981) 4 ehrr 126, considered the right of teachers to be asbent from school for prayers. in konttinen v finland (1996) 87-a dr 68, the issues raised was whether working hours conflicted with religious convictions. in valsamis v greece (1996) 24 ehrr 294, a child who was a jehovah’s witness who was punished for refusing to attend national day parade was held not to be an interference. in karaduman v turkey (1993) 74 dr 93, the applicant was denied a certificate of graduation because a photograph of her without a headscarf was the denning law journal 228 the house of lords also considered the court of appeal’s criticism of this line of strasbourg authority as “overly restrictive.” lord bingham responded by saying: “even if it be accepted that the strasbourg institutions have erred on the side of strictness in rejecting complaints of interference, there remains a coherent and remarkably consistent body of authority which our domestic courts must take into account and which shows that interference is not easily established.” 32 the house of lords accepted that interference was a debatable question “which gives the issue of justification under art 9(2) particular significance.”33 lord bingham then went on to consider whether the school’s approach to the uniform question was justified. he said: “to be justified under art 9(2) a limitation or interference must be (a) prescribed by law and (b) necessary in a democratic society for a permissible purpose, that is, it must be directed to a legitimate purpose and must be proportionate in scope and effect, the issue is whether the rules and the school's insistence on them were in all the circumstances proportionate.” 34 the house of lords held the court of appeal’s approach to procedure to have been wrong and the house of lords in its judgment referred to three academic articles which also shared this view35 and also to the fact that required and she was unwilling for religious reasons to be photographed without a headscarf. in stedman v united kingdom (1997) 23 ehrr cd 168, there was no interference where an employee was free to resign rather than work on sundays. in jewish liturgical association cha'are shalom ve tsedek v france (2000) 9 bhrc 27, para 81, also failed where the applicant’s case was that ritual slaughter of meat in france did not meet religious requirements. in all the above cases no interference was established. 32 hl at para 24. 33 hl at para 25. 34 hl at para 26. 35 see poole, "of headscarves and heresies: the denbigh high school case and public authority decision making under the human rights act" [2005] pl 685; linden and hetherington, "schools and human rights" [2005] educational law journal 229; and, for a more controversial appraisal, davies, "banning the jilbab: reflections on restricting religious clothing in the light of the court of appeal in sb v denbigh high school (2005) 1.3 european constitutional law review 511. the denning law journal 229 shortly after the court of appeal judgement the secretary of state intervened in order to correct what he described, as a fundamental misunderstanding of the human rights act. and in so doing, lord bingham enumerated three reasons why he considered the court of appeal’s approach to the procedural question wrong. “first, the purpose of the human rights act 1998 was not to enlarge the rights or remedies of those in the united kingdom whose convention rights have been violated but to enable those rights and remedies to be asserted and enforced by the domestic courts of this country… [30]. secondly, it is clear that the court's approach to an issue of proportionality under the convention must go beyond that traditionally adopted to judicial review in a domestic setting…[31]. thirdly, … i consider that the court of appeal's approach would introduce "a new formalism" and be "a recipe for judicialisation on an unprecedented scale"……. but what matters in any case is the practical outcome, not the quality of the decision-making process that led to it.”36 the house of lords criticised the court of appeal’s approach to this procedural question and said that the importance of preserving an inclusive uniform and preserving harmony was a legitimate aim and the refusal of shabina begum’s request to wear the jilbab proportionate to that aim and justified. “the school was entitled to consider that the rules about uniform were necessary for the protection of the rights and freedoms of others.”37 comment the house of lords in this case was very careful in ruling that its finding applied to the denbigh high school case and to no other. “ it is important to stress at the outset that this case concerns a particular pupil and a particular school in a particular place at a particular time. it must be resolved on facts, which are now, for purposes of the appeal, agreed. the house is not, and could not be, invited to rule whether islamic dress, or any feature of islamic dress, should or should not be permitted in the schools of this country. that would be a most 36 hl at para 29. 37 hl at para 58 per lord hoffman. the denning law journal 230 inappropriate question for the house in its judicial capacity, and it is not one, which i shall seek to address.”38 the house of lords decision clearly steers well clear of making any general rules with regard to school uniform and manifestation of religious belief. there is no need for future cases to follow the house of lords or to distinguish or overrule. the house of lords also avoided any discussion with regard to the meaning of ‘manifestation’ and ‘observance’ in art 9(1) preferring to rely on the wording and approach of the strasbourg jurisprudence. although it is to be noted that the strasbourg jurisprudence on the point of ‘dress code’ has considered ‘manifestation’ in a very specific context, relying on cases emanating from turkey. here, the particular social situation is coloured by the politico-religious and historical context of turkey’s recent efforts towards modernity. begum’s social situation even taking into account the politico-historical context, that is, islamic dress in the united kingdom is a far, far, cry from turkey’s history and struggle towards modernisation and its particular version of secularisation, which the court of appeal in contradistinction to the house of lords found to be, putting it at its lowest, ‘overly restrictive’ and at its highest, prohibitive. interestingly, the house of lords was concerned with in lord bingham’s words practical outcomes in approaching the proportionality question. nicholas blake qc (sitting as a deputy high court judge) in r (baker) v first secretary of state39 characterised the process requirements as part of proportionality itself. “proportionality is not simply whether at the end result the balance is fair, but whether, in getting there, it has been decided that the most appropriate course of conduct is also the least interfering with human rights, having regard to the public benefit to be achieved and the different means of achieving it.” the law has often been driven by consequences rather than by principle as simon lee has demonstrated40 and here, in this case, the consequences are set in a context of minority versus majority rights and a minority position that has been variously understood as ‘orthodox’, ‘extremist’ and ‘fundamentalist’ even though such language has been deliberately avoided by the courts. all courts, high court, appeal court and house of lords avoided any discussion of this question and their positionality on this issue was veiled in their eschewing of the use of terms like “moderate” or “extreme,” using instead the nomenclature of “very strong religious beliefs”41 explaining: “for the purposes of this judgment, because the epithet ‘fundamentalist’ has 38 hl at para 2. 39 [2003] ewhc 2511, [2004] jpl 729 (n 77). 40 s. lee judging judges, (london: faber and faber 1989). 41 ca at 3376 para 8. the denning law journal 231 resonations which it would be inappropriate to carry into the discussion of the issues in this difficult case i will refer to those muslims who believe that it is mandatory for women to wear the jilbab as ‘very strict muslims’ and those muslims who consider it inappropriate dress for a woman as ‘liberal muslims’ while being conscious that experts might find these epithets equally inappropriate.”42 the balance between the rights of shabina begum and the rights and freedoms of others (muslim girls and muslim young women) came down on the side of protecting the rights of others (muslim girls and muslim young women) from coming under ‘any pressure’ from within or outside the school to wear the same form of dress as shabina begum wished to wear. this is an interesting logic to protect others from a particular pressure. if applied in the context of the everyday life, a similar argument would follow in respect of any religious group. it would be an argument applicable to the pressure real or imagined placed on muslim girls and muslim young women to wear the headscarf – the hijab – or indeed to wear the shalwar kameeze. the wearing of the headscarf one might argue has already marked out muslim girls and muslim young women one from another, in so far as hijab wearers might be considered to be outwardly manifesting a claim to a more orthodox islamicism.43 42 ca at 3381 para 33. 43 miss booth qc’s point hl at para 65. the denning law journal 232 case commentary the jilbab controversy the facts the high court the court of appeal the house of lords comment a brightly coloured phoenix the denning law journal 261 book review a brightly coloured phoenix welstead and edwards family law: core text isbn 0 199 28235 8 (oxford: oxford university press, 2006) pp 372, price £18.95 frances burton* considering the pace and volume of legislation and cultural change in family law over the past 10 years, lecturers everywhere must finally have begun to despair of ever containing family law within a manageable syllabus before this neat compendium of essential principles and supporting authority was published by oxford university press in their core text series, at the same time that the long awaited english spring did not arrive to cheer us after the prolonged winter. buckingham’s family law syllabus has long been admired within the family law teaching community for its realism for students, its relevance to family law in practice and its sheer spread, while nevertheless being taught by two specialists able to deliver a thorough grounding in the law both affecting adult relationships (mary welstead who has written the first part of the book on these topics) and child law (by susan edwards who is an acknowledged expert in this area and now has the added benefit of practical experience at the bar in london: this is actually important as family law of all subject areas depends as much on how it works in practice as on the infrastructure of the black letter law, and sometimes more). alone of the syllabuses of english and welsh law schools buckingham also views the progress of the family from (even before) the cradle to the grave, having early made the point that many more marriages (and alternative relationships) end in death than divorce or other dissolution. for anyone who is trying to teach a holistic overview of the whole of family law, rather than (as many now do) splitting the subject matter into two separate courses this is the book that will give students the same enthusiasm for the subject that has for years driven the courses run by these two excellent tutors, who have now distilled their expertise into little more than the 350 pages which students of all abilities can be persuaded to read. for the able, this will be an introductory book, to fire their enthusiasm and to provide a solid grounding in the basics on which they will then build through the interesting further reading provided for each chapter. for the less able, it * llb, llm, ba, barrister, director of part time (bvc), university of the west of england. the denning law journal 262 could be the only book they read, but if read thoroughly in conjunction with whatever lectures and tutorials a student’s course provides, it would not only be enough to consolidate the mass of unorganised material which law students accumulate (and then often do not process sufficiently to benefit from) but should also inspire even the idlest student to creative thinking. the authors do this in a number of ways. first, there is the basic outline of the subject, carefully rendered down into the core principles, which have been restated with clarity, supported by the classic authorities and set into the contemporary context, such as in the chapter on the ground for divorce: this section, stripped of the over detailed case law found in many “core” texts, then also looks at the long standing criticisms of this area of the law and contextualises the divorce process which only 40 years ago used to be the only regulated adult relationship breakdown and 50 years ago comprised the entire corpus of family law when the leading textbook was tolstoy’s “divorce” – within the 21st century framework of civil partnerships, now with their own formal separation and dissolution processes under the civil partnership act 2004, and unmarried cohabitation. the approach is clear from the start in the chapter title, which is no longer “divorce” but “ending relationships”. the only pity is that the book was published immediately in advance of the recent law commission paper which finally tackles informal opposite sex cohabitation with a suggested scheme for formalising this particular relationship breakdown. no doubt the next edition will admit this class of relationship to the authors’ survey of ending those contemporary adult family relationships in which the law seeks to intervene. secondly, the authors provide excellent further reading in relation to each chapter. again this is not simply a dense list of both pedestrian and recondite titles, sufficient to put off any but the most obsessive student, but in the tradition of the realistic buckingham syllabus which aims to plug the study of law firmly into the everyday context to which a student can relate, in the chapter on domestic violence the reader is referred to such gems as erin pizzey’s 1974 title “scream quietly or the neighbours will hear” which as one of the memorable books of the past 40 developing years in family law imparts more about this particular issue than any amount of learned discourse on the subject whether in government reports, journal articles or the classic textbooks, all of which nevertheless also have their places in the selective suggestions to expand each subject area. other gems include cretney’s “history of family law in the twentieth century”, which might be the one book which would most complement the authors’ in making sense for the reader of where our contemporary family law came from, penetrating articles such as nick wikeley’s on the kehoe case “no redress when the child support agency fails to deliver”, which for the law student really the denning law journal 263 encapsulates the farce of the csa better than a hundred screaming newspaper headlines, and the “report of the inquiry into child abuse in cleveland” 1987 which provides in an formal document a chilling insight into the infrastructure of child protection. thirdly, in paring away the forest of cases (including a shower of recent ones which may be of transient interest and which sometimes fog the essential message in a core textbook) the authors have chosen authorities which truly support their themes. while recent cases are there and have their place, there is a clear determination to make full use of older authorities which demonstrate a golden thread in the now rich tapestry of wider family law principles. such a case is mh v mh [1982] 3 flr 429, which is long forgotten by most textbooks which (in considering the relevance of the wife receiving spousal maintenance who cohabits with a non-contributing man, in this case a toy boy some 16 years younger than her, whom she does not marry) go for the more modern case of mrs atkinson and her laid back gardening partner with whom she had taken an express decision not to end her right to maintenance from a wealthy husband by remarrying since this would have required her new man to realise his earning capacity which would have put a stop to their more casual lifestyle. yet the facts of mh v mh, which have some similarities with atkinson v atkinson [1987] 3 all er 189, are not only much more entertaining (where the new man, instead of taking an express decision to marry her because she would then lose her right to maintenance from a wealthy husband who can afford it, instead decides he cannot marry the divorced lady as it is against his principles to marry anyone he cannot support!) but establish at a much earlier stage than the traditional authority that the rights to maintenance under the matrimonial causes act 1973 distinguish marriage from the riskier relationship, with no such rights on dissolution, of unmarried cohabitation. fourthly, there are excellent thought provoking self test questions provided for each subject area which follow the further reading for each chapter. these are by no means all of the practical potential examination extract type (for example the authors obviously realised they were on to winner with the soap opera mh v mh since this case figures in one of these questions in which readers are for a critique) and some, such as on why, in view of the contractual nature of marriage, it cannot be ended immediately by mutual agreement are clearly designed for potential law reformers, but the real value for the reader is in the creative problems which enable the student in following the opportunities for debate with himor herself to check understanding of the material in the preceding chapter in a creative way. it is difficult to find any significant criticism of this useful book bearing in mind the space constraints of a core text. however although it is a core text it might have been helpful to include in the chapter on adoption further the denning law journal 264 reference to the tensions between the welfare of the child (now paramount under the adoption and children act 2002 but always the “first consideration” under the 1976 act) and immigration policies. this is touched on in the case of s and j (adoption: non-patrials) [2004] 2 flr 111, but especially given the authors’ appreciation of key cases from the past it might have been worth a paragraph to include the earlier case of re b (adoption: nationality) [1999] 1 flr907, hl in which lord hoffman examined the interface between these two areas of law which is important especially as the child approaches majority. overall, this is a joy to read as it is such a page turner. everywhere basic material is enlivened with illustration of an innovative type, critique and comment: a much livelier read than a law textbook traditionally is, without compromising the scholarship, although inevitably, as professor cretney commented when first asked to write his now well known “short” textbook, there will be some sacrifices to the limited space. however this taste of family law in the round is likely to drive the reader to the weightier works which might otherwise not be opened. book review a brightly coloured phoenix frances burton* two kinds of justice: human and devine the denning law journal 1 denning law journal 2008 vol 20 pp 1-19 two kinds of justice: human and divine, random thoughts à propos milton’s paradise lost1 sir basil markesinis∗ it is an honour to be asked to give the denning lecture and i must confess from the outset that i can never do justice to such a great man and jurist. i say that not out of modesty, being conscious of his great legacy, but also because i was fortunate enough to meet him, talk to him in extenso on several occasions, and even had the privilege of holding a chair that once bore his name. i shall return to him briefly at the end of this short talk but first i must explain here why i chose tonight’s subject. having spent the last three years or so working on my latest volume on the german law of obligations written for an anglo-saxon legal audience in mind the temptation was to take something out of that unending research project and turn it into tonight’s lecture.2 but sir martin nourse, to whom i owe tonight’s honour and to whose judgment i have always deferred, asked for a wider theme that could appeal to an audience not only of lawyers. what better way to achieve this than by connecting some random thoughts on law and literature? given my chosen theme, milton’s paradise lost seemed an obvious choice allowing one to compare not only substance but also style in law and literature. 1 even non specialists – and i include myself in this group – know that the literature on milton is enormous. they also know that in paradise lost his account derogates from genesis as well as containing seeds, developed more fully in other works of his, of religious deviation from established doctrine. to reflect all this accurately as well as his political views in a lecture of this kind would produce a text unsuitable for the text of the denning lecture addressed to an educated but not specialist audience. it was delivered at the old hall of lincoln’s inn on november 22nd, 2006 at the invitation of the chairman of the denning society, sir martin nourse pc. ∗ qc, fba, corresponding fellow of the french academy, socio straniero of the accademia dei lincei (rome). 2 the first volume entitled the german law of torts: a comparative treatise is now in its fourth edition (2003); the second the german law of contract: a comparative treatise is now in its second edition (2005). these last editions were co-authored with three favourite pupils – the first with professor hannes unberath, the second with professor hannes unberath and dr angus johnston – who i hope will maintain these works of love in the years to come. two kinds of justice: human and divine random thoughts à propos milton’s paradise lost 2 i. the treatment of the villain in art (i) predetermined summary punishment art often follows the (contradictory) biblical texts, which tend to impose a predetermined punishment in a summary way. to any contemporary jurist this is harsh; and it becomes totally repugnant when one considers with little short of amazement the severity of penalties envisaged by texts such as leviticus3 and deuteronomy.4 these, it must be remembered, are not ordinary laws but laws given to man by his god. this is an aspect of the problem that these great works of art raise but few if any seem to have addressed them in any great detail. to the extent that i am aware of, this is, indeed, true even of the huge literature generated about paradise lost, even after the re-orientation this discussion received following the appearance of the seminal monograph surprised by sin first published in 1967 by professor stanley fish, now of duke university in the usa. the expulsion from eden offers an example. genesis suggests that a kind of legal procedure was followed before the expulsion took place.5 no lawyer could fault what is there stated. for adam and eve are ‘summoned’ to a hearing, told what they stand accused of, and given a chance to explain their behaviour. fortescue j used this example in dr bentley’s case6 as an illustration of the antiquity of the audi alteram partem rule, incidentally, underscoring the link between law and (religious) literature. but complaints, naturally by lawyers, have also been voiced why the same was not done in the case of the serpent since, at the time, he was empowered with miraculous powers of speech.7 the objection, as much as the explanation offered for the omission – that god being omniscient knew that the serpent had transgressed willfully – is too ‘religious’ in its logic to warrant further legal discussion. that religious texts are often subject to hermeneutical rules of their own cannot be doubted; and possibly lawyers should be slow to extend their own reasoning to these texts. still, if the objection about the different treatment accorded to the serpent is of any interest, it is because it suggests that different ‘accused’ were treated differently. 3 21.13: death for homosexuality; 21.15: death to those who rape animals. 4 22.22-4: death for a woman guilty of adultery; 21.18-21: death by stoning for a son denounced by his father as “stubborn and rebellious”. 5 3.9-24. 6 (1723) 1 stra 557. 7 r p croom-johnson and g f l bridgman (eds) judge pitt taylor’s a treatise on the law of evidence (london: sweet and maxwell, 12th edn, 1931), 2nd vol, note p 1095. the denning law journal 3 the standing of the audi alteram partem rule in divine justice is dealt a more serious blow by other biblical texts; and they convey a different picture. for in saint matthew’s account of the last judgment, christ suggests that punishment and salvation come before those who are judged can say anything;8 and in daniel v we are told that the moving finger, which wrote on the wall the damnation of belshazzar, the soon-after deposed king, was given “no summons, information of the nature of the complaint, or opportunity to answer.”9 the religious texts thus remain ambiguous as to what extent the notions of divine procedure would satisfy the tenets of its earthly counterpart. that the violation of god’s command had a predetermined, fixed consequence (whatever its severity) is also an indication that discretionary justice does not hold much attraction to those who administer justice in heaven. asking adam to explain why he ate the forbidden fruit, could thus not, and indeed did not, have any effect on his sentence. genesis makes this clear in 2.17.10 the significance of observing the audi rule is thus diminished. one explanation given for even asking adam to explain himself was that; but in asking adam to defend himself god was merely intending to elicit from him the statement that it was the snake who had “beguiled him,” thus laying the foundations for a promise of redemption. but if god is omniscient, surely he knew this, too. in legal terms one could just about stretch this promise of future redemption to make it sound something like a future pardon; but again, it destroys the aesthetic and religious content of these texts to read them in legal ways so, suffice it merely to stress that they suggest some basic differences between divine and human justice. much of this is rigidity is echoed in the later literature of the fall of man. in milton’s paradise lost, god, himself, makes the above points abundantly – “sternly” is milton’s word – clear to adam when he tells him:11 “the day thou eat’st thereof, my sole command transgressed, inevitably thou shalt die.” the penalty is thus clear; it is unique; and it is very severe. mitigation pleas are not allowed; nor does the judge/god seem to care about the summary way in which it is imposed, for it is all part of what he has foreseen having endowed man with a free will and what he has predetermined.12 the 8 matt 25, 31 ff. 9 r f v heuston essays in constitutional law (london: stevens & sons ltd, 2nd edn, 1964) p 185. 10 “but if the tree of the knowledge if good and evil, thou shalt not eat of it; for in the day that thou eatest thereof thou shalt surely die”. 11 viii 329-330 (my italics). 12 it is all set out clearly in book iv. two kinds of justice: human and divine random thoughts à propos milton’s paradise lost 4 opinion of the supreme judge is thus pronounced ex tempore, for he needs no time to reflect on the convincing nature of the defence: he has made his mind up long ago on what will happen, having himself foreseen the events leading to the fall and set the penalty in clear terms. yet in the miltonian version of these dramatic events a ‘defence’ of sorts is offered to the culprits. it could be seen as an artistic ‘twist’; better, part of the effort to “justify the ways of god to man.” in this sense it is, to put it bluntly, part and parcel of the effort to improve further the image of the ‘son’ since this ‘mediation’ is in derogation to what is said in genesis as the latter is silent on this point. indeed, towards the end of the poem, where god, after man’s fall, delegates his judicial powers to the son, he says: “but whom send i to judge them? whom but the vicegerant son, to thee i have transferr’d all judgment, whether in heav’n, or earth, or hell. easie it may be seen that i intend mercie collegue with justice, sending thee mans friend, his mediator, his design’d both ransom and redeemer voluntarie, and destin’d man himself to judge man fall’n.13 but that is the “image,” not the reality (at any rate at the time of adam’s trial). for at that stage at least, there is little sign of ‘mercy’; and the ‘defence’ the son offers on behalf of the ‘fallen,’ is not only brief – twenty-three lines – but also expressly limited to mitigating the sentence, not avoiding it or reversing it.14 but, in keeping with the inflexibility and previously decided nature of the sentence, god’s reply to the request that adam not be expelled from paradise is curt: “but longer in that paradise to dwell the law i gave to nature him forbids.”15 of course all this may be explained by reference to what is said in book three: for god, making man free and also foreseeing that he will be seduced by the devil, ordained a long series of sufferings which will not be ended until someone else comes forward to offer himself as sacrifice to expiate the 13 x 55-62. 14 “let him [adam] live before thee reconciled at least his days numbered, though sad, till death his doom (which i to mitigate thus plead, not to reverse). [xi, 38] 15 xi 48. the denning law journal 5 primordial sin. it is, indeed, at this stage that we get a glimpse of god’s plan, his giving man free will, his (god’s) relationship with the son, and the latter’s selfless character as he offers to sacrifice himself to save man. indeed, the way this is uttered (in quiet, firm, and most effective monosyllables)16 represents, in my view, one of the few examples of ‘deity’ being represented in this poem as attractive. yet, once again, the language used still makes one wonder about milton’s feelings as an artist. for, as mr balachandra rajan put it many years ago: “(…) (t)he spare precision of the language milton gives him [the son] is lit only seldom by the ardour which should inform it. clothed in the language of ezekiel’s vision his [the son’s] triumph over satan must have its moments of majesty, but it remains a moral rather than poetic victory.”17 so how the son will, in the postlapsarian world, combine justice with mercy remains to be seen. (ii) the punishment is severe if not excessive the punishment is severe. the fall from heaven is caused by disobedience of one single command. how can the violation of one rule have such catastrophic consequences? lawyers would find this difficult to comprehend and even more difficult to justify. but religious hermeneutics operate in a world of their own, incomprehensible to the un-initiated or disbelievers! milton thus sees in the violation of this prime command “distrust in divine veracity,” “proportionate credulity in the assurances of satan,” “unbelief,” “ingratitude,” “insensibility to the fate of offspring” of our first parent, “patricide,” “theft,” “sacrilege,” and “deceit.” the list is still longer.18 not only is the punishment excessively severe; it is also the same for all offenders. the accessory (eve) will get the same treatment as the principal offender (the snake) as will adam, at one removed again from the main culprit. it is noteworthy that this point, inevitably raised by lawyers, has also crossed milton’s mind when, in the “foresake me not thus, adam” speech,19 he makes eve develop the idea of ‘graded’ sin, hers being heavier than adam’s: 16 iii 144 ff. 17 paradise lost and the seventeenth-century reader (london: chatto and windus, 1947, reprinted by ann arbor: university of michigan press, 1967) p 107. 18 the works of john milton, xv, 181-3. 19 x 913 ff. two kinds of justice: human and divine random thoughts à propos milton’s paradise lost 6 “both have sin’ed, but though against god only, i against good and thee, and to the place of judgment will return, there with my cries importune heaven, that all the sentence from thy head remov’d may light on me, sole cause to thee of all this woe mee mee onely just object of his ire.”20 eve addresses this plea to adam, though we must assume that god, being omniscient, is aware of its content. if he is, it seems to make no difference. so, could someone else raise it as a defence? as already mentioned, in the milton poem only the son seems inclined to plead the case of the fallen; but he fails to raise this point altogether. notwithstanding the moving lines of eve’s soliloquy, her plea, once again, falls upon deaf ears. nor is there is any clue as to how old adam and eve were when they disobeyed the divine ordinance; but neither is there any indication that youth (or, come to that, any other mitigating circumstance) could soften the preordained sanction. i need hardly add that such rigidity of religious justice is not one that commends itself easily to contemporary lawyers. the punishment also seems to be oblivious of any need for proportionality. the old mosaic law “an eye for an eye and a tooth for a tooth” could, one might argue, be seen as embodying some idea of proportionality; but it is not only barbaric; it is also a rule that encourages the wronged victim to take the law into his hands. to be sure, one can oppose to this argument that such conduct was tolerated two or more thousand years ago. but this does not mean that such rules have any appeal in today’s civilised systems. in the biblical texts punishment thus often degenerates into a form of vengeance. allusion has already been made to an extract from the ten commandments where the sins of the fathers are visited on the children and the children’s children. this, too, would not pass muster in the world of law; nor would its vengeful language, emphasized by the lord stressing that he is “a jealous god.” likewise, when the world is found to live in sin it is flooded, all but one man and his pairs of animals having been decreed to drown. the attempt to separate the sinners from those who were not (or less) guilty was, clearly, not even considered, reminding one of the action of the papal delegate who ordered that the cathedral at bézier be torched, killing all inside and trusting that god would then find (and reward) his own among the burnt bodies.21 20 x 927. 21 caesarius de heisterbach, quoted in extract in coulton c g (ed) life in the middle ages (cambridge: cambridge university press, 1967) pp 67-68. true to christian tradition, the abbot of cîteaux who gave the orders of the massacre was, the denning law journal 7 once again, the supreme judge is portrayed as the rex tremendus of the requiem. to a lawyer, he also appears to allow himself to exercise his powers to excess. the same power is also awarded to those doing justice on his part. solomon’s famous decision to allocate the disputed baby22 is preceded by his decision to have the baby ‘divided in two’ – that is, effectively, killed. whether he would have carried out this threat, had not the ‘good’ contender acted the way she did, we will never know for sure. that the threat could be made is, however, a fact if we are to treat the sources as describing a real event. to modern eyes, this is hardly a way of ‘doing justice,’ even if it amounts to a gable that, in the end, paid off. but it provides us not only with an example of divine justice being harsh justice; it also shows that what, at the time, was seen as proof that god had truly endowed salomon with wisdom can nowadays be seen as an example of ‘male chauvinist’ behaviour. one thus does not have to share modern feminist sentiments to see in this famous incident – probably the first major recorded history of a legal trial – another illustration of the point made repeatedly in this essay viz. that what may appear as just and brilliant to one age may be seen as biased and improper by another.23 to sum up, the incidents of ‘divine’ or ‘divinely inspired’ justice do not lend themselves easily to a contemporary legal analysis and, possibly less so, to approval. probably, this is in part due to the fact that they do not provide lawyers with all the facts they need to exercise their professional judgment.24 possibly, they also echo values and ideas which hold out less appeal to our generation than they did to others. thus, in many cases, the only way a lawyer can be restrained from applying his principles to condemn such decisions is by being asked/ordered ‘to believe but not probe’ on how divine justice works. no true lawyer can do this easily; yet this is what the christian religion asks its followers to do: not to raise questions. subsequently, promoted to archbishop of narbonne while pope innocent iii, known often as the great, rejoiced that, through this incident, god had “enabled as many as possible of the faithful to earn by their extermination a well-merited reward.” today’s lawyers might have been tempted to think in terms of crimes against humanity! whose attitude is better? that is not the point. more to the point is that a particular conception of justice and behaviour, lauded eight centuries (or more) ago, would be condemnable by all today. 22 1 kings 3:16. 23 for a feminist interpretation of this famous incident, see professor ann althouse “the lying woman, the devious prostitute, and other stories from the evidence casebook” (1994) 88 northwestern university law review 914. 24 to my knowledge the most balanced (and intriguing) legal interpretation of this instance of solomonian justice can be found in professor l h larue “solomon’s judgment: a short essay on proof” (2004) 3 law, probability and risk 13. two kinds of justice: human and divine random thoughts à propos milton’s paradise lost 8 (iii) the passage of time and its effect on the interpretation of the law the religious texts are replete with examples of severe punishment imposed for a wide variety of offences.25 but though these texts were ‘handed down’ or written over a long period of time, their self-confident wording suggests no awareness of the need to adapt either their wording or their interpretation. rabbinic interpretation may flesh out details; but much of the original rigour seems to stay alive. not only are the religious texts timeless; we are made (indoctrinated?) to think that so, too, are the underlying moral values. clearly, there must be some merit in the idea that values, at their core, cannot be changed or, at least, changed rapidly and in a capricious manner. but change there must be, for everything, or so it seems to me, is subject to this inevitable law of nature. those, especially on the religious/conservative side, must surely dislike this idea of flexibility or change or relativism, in which i, for one, find some appeal. but then let us not forget that ‘adultery,’ figuring prominently in the ten commandments, was, traditionally, understood to include unmarried sex and even excessively passionate relations between married persons. though some, leo nikolayevich tolstoy for instance, tried to retain this wider meaning as late as the 19th century russia26 (while himself shamelessly violating this same commandment) the meaning of the word (and, i assume, the biblical commandment) has now moved closer to the legal meaning of the word. is this not an evolution brought about by time? and if it is possible here, is it not also possible to accept the need to weaken some extremely harsh pronouncements on homosexuality found in, for instance, leviticus?27 i am, of course, conscious of the fact that many, more highly trained in the art of interpreting religious texts, can come up with a host of objections, convincing or not. equally, it should not be taken as granted that the author feels any personal sympathy for this predilection. but the point that has to be made is that personal neutrality or even antipathy should not be translated into moral condemnation, let alone into illegality. 25 for instance exodus, 21. 26 in his kreutzer sonata, published in 1889. 27 leviticus 21:13. it is, for me, particularly interesting to see that this ‘move’ towards a ‘different’ approach to the problem can be found as early as in dante’s hell – canto 15 and 16 – where, though homosexuality is condemned by the very christian poet, it nonetheless receives a compressed and nuanced treatment that does not tally with earlier religious understandings. after all, dante is guided to his redemption by virgil; and it is in his second eclogue that we find the shepherd corydon yearning for the lovely alexis. i see this treatment of homosexuality by dante as providing early signs of the ‘spring’ of humanism or, to put it slightly differently, the beginning of the return to classical antiquity. the denning law journal 9 law adapts; and modern courts have often stressed the need to retain such flexibility. these religious texts do not. more importantly, they have no justification, where they are still found to apply horrible mutilations and harsh forms of execution. and let us not forget that some of the harsh punishments found, for instance, in deuteronomy28 are also imposed in our times in islamic countries by sharia courts. so one is not here talking just of old testament notions of justice (mitigated or not by christianity or rabbinic interpretation); one is talking about the usual inherent rigidity found in religious systems and their rules, of whatever faith. to adapt and change is difficult; the older the person (or civilisation or legal system), the greater the difficulty. to make a change, one must not only be realistic; one must also know how to forget and re-learn. the point i wish to make was well encapsulated in a short sentence by the nobel prize laureate boris leonidovich pasternak when he wrote that sometimes in life “it is more important (…) to loose than to acquire. unless the seed dies it bears no fruit. one must live tirelessly, looking to the future, and drawing upon those reserves of life which are created not only by remembrance but also by forgetting.”29 i have italicised the words which i find interesting (indeed intriguing), for this, i think, is what is needed. that is to learn to ‘forget’ precepts instilled in one in early life and to learn how to re-phrase them and re-evaluate them – always within measure and with conscious self-restraint – in the face of a changing society. certainly, this happens in the law all the time, though as stated repeatedly, such a task is – and should be – undertaken by society only incrementally and with due deliberation. so, changing times must lead to new understandings of old texts, crimes, and punishments.30 changes in prevailing 28 22:22-24; in nigeria and other muslim countries women have thus been stoned to death for adultery. 29 “an essay in autobiography” reprinted in poems 1955-1959 and an essay in autobiography (london: harvill press 1990) p 39. 30 in the context of imposing the sentence of life imprisonment the german constitutional court put the point beautifully when it said in bverfge 45, 187 at 229: “with all this, one must not lose sight of the following: human dignity is something that cannot be disposed of without more. insight into what is required by the obligation to respect it cannot be separated from historical development. the history of the practice of criminal law shows clearly that most cruel methods of punishment were replaced by milder penalties. progress leading from crude to more human, from simpler to more differentiated forms of punishment has continued, with the distance yet to be covered becoming clearly recognisable. any judgement on what [which treatment] accords with human dignity can therefore rely only on the present state of knowledge and insight, and cannot rightly demand to be considered valid timelessly”. two kinds of justice: human and divine random thoughts à propos milton’s paradise lost 10 morality must thus, in the end, be reflected in the law for otherwise those who apply the law – be they juries31 or judges – will find ways not to apply the law. even religious writers of a conservative ilk are prepared to accept this. thus, professor c s lewis expressed this in the following terms: “the law must rise to our standards when we improve, and sink to them when we decay. it is a lesser evil that the laws should sink than that all judicial procedure should become a travesty.”32 this is particularly true when interpreting ‘constitutional’ documents – and i use the word here widely and not technically – which, as lord bingham so convincingly told us in a marvelous dissenting judgment on the death sentence, should not be interpreted as if they were charter-parties.33 and this, widely accepted, view is crucial for the constitutional soil all other laws draw their nourishment. the importance of taking change into account here is doubly crucial. crucial, first, in the sense of agonising over the issue which is causing nowadays so much pain to american judges, namely, whether they can, themselves, attempt to give effect to such a change or whether they must leave it solely to the elected representatives. but the agonizing is also crucial because often the basis of these legal changes depends upon ‘accepting’ changes in underlying moral issues. the death sentence issue is such a problem; and in one sense takes us back to the issue whether ‘humanity’ can and should challenge the idea of retribution and ‘just deserts.’34 but other phenomena, such as suicide, abortion, homosexuality, or adultery are issues which have strong moral roots which may no longer be able to support particular legal outgrowths. it seems to me that in all these instances, the currently accepted legal solutions have moved away from original moral precepts on which, however, sections of the christian church have shown a lesser ability to adapt. 31 see, for instance, the jury verdict in the pontyn case the details of which can be found in the following bbc file: http://news.bbc.co.uk/onthisday/hi/dates/stories/february/16/newsid_2545000/254590 7.stm 32 “sex in literature” published in the sunday telegraph, no 87 (30 september 1962) and reprinted in lesley walmsley (ed) c s lewis essay collection: literature, philosophy and short stories (london: harpercollins, 2002) p 71. 33 charles matthew v the state [2004] 2004 wl 1372517 at p 8. 34 in a famous “death sentence” case the south african constitutional court, which decided against the legality of its imposition, referred to the idea of a forgiving society as a factor to be taken into account when deciding the issue before it. thus see the state v makwanyane and mchunu (case no. cct/3/94 of 6 june 1995). the denning law journal 11 (iv) the lack of appeal, even in theory, against the divine sentence once imposed, the divine sanction is final. this, too, cannot commend itself to the legal mind. no doubt, the sole explanation for this must be that the chances of the supreme judge making an error are nonexistent. but what of the tendency already mentioned to over-react and make others, besides the prime culprit, suffer? in the end, none of this counts and the ‘fall’ from heaven is complete and irreversible. in the very distant future, and thanks to the son’s (subsequent to the events described here) self-sacrifice, the condemned will be summoned by the sound of a trumpet to present themselves in order to be re-judged. but that will take a very long time. that is as close as one ever gets to an appeal in the system of divine justice. in the meantime, and if the scriptures are to be relied upon, we seem to have only one human being who has ever made it to heaven, and he is a most unlikely person: the robber who was crucified with christ at golgotha.35 the system clearly does not believe in ‘carrots and sticks’ but only sticks. to me this is obvious in the stern expression of the old man depicted on the ceiling of the sistine chapel as he famously stretches his hand out and ‘transmits energy’ – life – into the lethargic, still lifeless, body of the beautiful young man.36 but then ‘stern’ may be the wrong adjective, though ‘joyful’ is not the word one would use either. austere might, in the end, be the better term to describe god’s expression, reflecting the intensity (and concentration) of ‘creation.’37 yet, is this not, again, an instance of a man – michelangelo – ‘divinely’ interpreting the text of genesis? for all that the latter says is that when god reached the end of his busy week he stood back and felt satisfied with what he had accomplished. once again, therefore, it is the artist who has created (and tried to improve) the enduring image, not the revealed text. 35 luke 23.43. interestingly enough matthew totally ignores the incident, whereas the remaining two evangelists, mark and john, merely mention that the robbers joined the crowd in hurling abuse at christ. 36 the late e h gombrich, in the story of art (london: phaidon, 11th edn, 1966, reprinted 1967) at p 227, talks of life entering the “beautiful body of vigorous youth.” the lawyer’s mind, duller than that of the art historian, needs proof to be convinced, and i see none in either the depiction of the creation or in the story of life in eden to suggest ‘vigour’. 37 dr northrop frye, analysing the miltonian texts, comes close to the same ideas when he states that these texts “suggest that we ought to revise our conception of creation: it is not so much imposing form on chaos as incorporating energy into form” see the return of eden: five essays on milton’s epics (london: routledge, 1966) p 52. two kinds of justice: human and divine random thoughts à propos milton’s paradise lost 12 ii. the treatment of the villain in law (a) better treatment for the accused however base, nasty, uninspiring or downright evil they may be, the law will treat its villains better than divine justice does its own. the striving for fairness is not only real; it must also be seen to be made to look fair and efficacious, avoiding at all cost any idea of a ‘fixed trial’ or, as theologians might put it, ‘predestination.’ the punishment of the villain will thus come after a properly regulated and publicly held trial. the sinner’s degree of fault will be taken into account and his punishment made commensurate with the crime. the death sentence is now prohibited in the vast majority of nations even in the case of treason, which must be the closest equivalent to adam’s crime. (b) taking into account his personal characteristics the offender’s personal characteristics (and those of the class to which he belongs) will be looked at in order to mitigate his sentence. in roper v simmons,38 america’s most recent and important death sentence case, the age of the murder at the time of his truly heinous murder constitutes a major reason for not imposing the death sentence. delivering the judgment of the court, this is how justice kennedy put it:39 “three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. first, as any parent knows and as the scientific and sociological studies respondent and his amici cite tend to confirm, “[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. these qualities often result in impetuous and ill-considered actions and decisions.” (…) it has been noted that “adolescents are overrepresented statistically in virtually every category of reckless behaviour.” (…) in recognition of the comparative immaturity and irresponsibility of juveniles, almost every state prohibits those under 18 years of age from voting, serving on juries, or marrying without parental consent. (…) the second area of difference is that juveniles are more vulnerable or susceptible to 38 125 s ct 1183 (2005). 39 ibid, at 1195. the denning law journal 13 negative influences and outside pressures, including peer pressure.40 this is explained in part by the prevailing circumstance that juveniles have less control, or less experience with control, over their own environment.41 the third broad difference is that the character of a juvenile is not as well formed as that of an adult. the personality traits of juveniles are more transitory, less fixed. (…) these differences render suspect any conclusion that a juvenile falls among the worst offenders.” this brief extract represents, in my view, the essence of the majority’s objections to the imposition of the death penalty even though some of the dissenting judges expressed severe doubts as to whether this expert evidence was convincing and even though it was the court’s invocation of foreign law that attracted the most venom from those opposed to the actual result.42 likewise, in the earlier case of atkins v virginia43 the court decided (on similar but also different44 arguments) that the death sentence should be deemed a cruel and unusual punishment given the “evolving standards of decency.” (c) remission of the sentence this is possible in most systems after it has been imposed and partially served. for legal systems find much value in the idea that one should take into account subsequent repentance and good behaviour, and this for many reasons. to be sure, some incidents of early release have attracted, in britain and elsewhere, considerable outcry, especially where the (prematurely) released offenders re-offended again. yet this should not be blamed on the notion of remission as such but on the way it was exercised by those given the statutory power to order such releases. 40 “[y]outh is more than a chronological fact. it is a time and condition of life when a person may be most susceptible to influence and to psychological damage.” see eddings v oklahoma, 455 us 104, 115 102 s ct 869 (1982). 41 “[a]s legal minors, [juveniles] lack the freedom that adults have to extricate themselves from a criminogenic setting.” see steinberg & scott “less guilty by reason of adolescence: developmental immaturity, diminished responsibility, and the juvenile death penalty” (2003) 58 american psychologist 1009 at 1014. 42 for instance justice scalia, above n 38, 1126. 43 536 us 304 (2002). 44 a crucial difference between atkins and roper was the change of mind evidenced by state legislators on the issue at hand. many more state legislators had abolished the death sentence for mentally retarded persons than for juveniles. justice o’connor and justice scalia for the dissent were both keen to point out this difference between the two cases. two kinds of justice: human and divine random thoughts à propos milton’s paradise lost 14 by contrast, and as stated, the divine sanction can not be altered for good behaviour. rigidity once again is valued more than flexibility. god – certainly the one of the old testament – does not forgive or bend; and artists (such as mozart) who consign the hero to the flames of hell from which there is no return are, as we suggested earlier on, compelled by the conventions of their times to do so. as already stated, this need was felt so strongly and was accompanied by such pressure to convey this final message clearly, that the concluding (admittedly rather lame) sextet written for don giovanni was not, for a long time, performed, and even nowadays tends to be omitted from contemporary productions. the final damnation must thus be the last image imprinted in the audiences’ minds. exceptions, however, do exist in literature; and, perhaps, it is not surprising that it is goethe, so anxious in his life and work to reconcile christian and pagan, western and eastern thought,45 who makes margareta forgive faust and thus assist his final salvation. for he, too, has committed murder, yet somehow its clear that it is not murder in the first degree since mephistopheles ‘paralysed’ valentin’s hand at the critical moment of the duel. but in divine justice forgiveness seems to be ruled out by definition; though millennia later, god’s son incarnate will advise his own disciple peter that man must learn to forgive seventy times seven.46 (d) continued concern for the wrongdoer’s rights the legal process goes on caring about the wrongdoer’s rights – some would in fact say too much, and at the expense of those of the victim. the molester’s interests are invoked to give him a ‘human’ aspect and bring about his protection against wrathful vigilantes. even after he has come out of prison the law continues to be concerned about the preservation of his anonymity in order to prevent vengeful (or concerned?) citizens taking the law into their hands and seeking to impose their own punishment on the molester. it is only because he is seen as remaining a real threat that, in the end, the disclosure of his identity is allowed to certain persons. this very laudable attempt to weigh the competing interests takes much courage from our judges who end up not being praised but pilloried by the tabloid press. 45 this desire is seen in many of his poems but, mainly, in his der west-őstliche divan, a collection of exuberant poems inspired by the reading in his later life of the work of a medieval persian poet, hafiz, which led him to the idea of trying to build bridges across the cultures of the east and the west. 46 matt 18 22. the denning law journal 15 (e) the balancing process of legal reasoning this could, for present purposes, be the last difference between divine and human justice, and in law it takes two forms. the first is that a court of law is often asked to balance competing values before declaring a bad act condemnable. secondly, it differentiates carefully and subtly between offenders. the first goal is shown clearly in the case of kaye v robertson.47 we may not like the idea of privacy being sacrificed to free expression; and we could sensibly propose a better way of balancing these competing interests. but the attempt is, at least, made; and if it does not always produce the best results this is not because the aim is not worth the effort but only because the line was drawn, as lines often are, in the wrong way. the balancing process is seen even more clearly in the bulger case notwithstanding the repeatedly stressed heinous nature of his murder. for this to happen, resort is had to national and international texts, evidence is weighed carefully, and legal principles such as that of proportionality are closely scrutinized before the scales of justice are finally tipped in favour of granting eternal anonymity to the murderers. frankly, this balancing process can, especially in common law judgments, take up more space than i, for one, believe is necessary. yet this detail also reveals the care taken as well as the merits offered by ad hoc weighing of the arguments, including the need to reintegrate into the fold the human being who has left society.48 the common law judgments, longer and more explicit than their civilian counterparts, may also help reveal the attention given to every aspect of the case by judge and counsel alike. once again, christian or artistic justice has few such counterparts. one has to go back to the ancient greek tragedy and find, again, the pagan god’s ability to appear at the critical moment and tip the scales in favour of the accused. this invention of the device of deus ex machina is thus not only a brilliant theatrical invention of aeschylus which enables him to bring a tangled plot to its conclusion in his orestia; it is one which involves the god – 47 kaye v robertson [1991] fsr 62. 48 that this value is, once again, appreciated by the ancient greeks can be seen from the odysseus myth. for though the resourceful (polytropos) hero is given by calypso the chance – indeed the rarely awarded honour – to become a god and to live in oxygia in eternal sensual and luxurious immortality, he chooses, instead, to return to the role of husband and father and king of a small kingdom. in his inferno, canto xxvi, 90 ff, dante attributes this to odysseus’s restless urge to travel and explore the world. but though odysseus is a restless person – how many great achievers are not? – he cannot, i think, be accused of ‘travel lust’ for if there is one constant and transparently expressed theme in the odyssey it is his desire to return home. two kinds of justice: human and divine random thoughts à propos milton’s paradise lost 16 in the instant case the goddess athena – not only to intervene in favour of clemency but, through bargaining,49 transform the erinyai, relentlessly pursuing orestes, into the eumenides. this result, which leaves everyone as happy as can possibly be, is brought about by the same pragmatic goddess who so favoured that archetypal greek hero – odysseus – because he was so intelligent and so human, warts and all. the second point worth making here is even more obvious in law, both criminal and civil – yet, again, divine justice seems to ignore it and lump all offenders together. thus, in the book of revelations we are told that: “but the fearful, and unbelieving, and the abominable, and murderers, and whoremongers, and sorcerers, and idolaters, and all liars, shall have their part in the lake which burneth with fire and brimstone: which is the second death.”50 how much more human and also more convincing is dante who, while placing all of the above in hell, makes them inhabit different circles in a manner more suitable to the gravity of their offence. but it took the middle ages to invent, despite their deep spirituality, the idea of iustum contrapassum. concluding thoughts i would like to end not by summarizing the two approaches of human and divine justice by looking at then in juxtaposition for, in a sense, i have done that already. i would, instead, like to bring out the human element in litigation and thus end, as i began, by paying tribute to one aspect of lord denning’s legacy: putting literary style to the service of humanity which survives – in his judgments at least – even in the dry, cerebral, and adversarial environment of a real trial. my point is simple: literary texts invariably outdo in beauty and expressive power the legal counterparts. exceptions are rare. in the usa justice cardozo springs to mind; in this country lord denning must hold a special position. but there is more in his language than beauty. for the way we describe his character can tells us or conceal much about how the author saw him. milton’s attitude towards satan has been famously controversial; and i belong to the shelley, blake and byron club who think he comes out of this epic poem rather well. but language can tell us more about how the writer feels 49 this bargaining which takes place between ancient greek gods – an early version of alternative dispute resolution? – is often based on flattering the opposing god. that is how zeus finally settles the fate of aeneas with his wife hera. 50 21.8. the denning law journal 17 about the people he is dealing with. it can also conceal the substantive arguments that lead the author/writer/judge to save him or damn him. in beswick v beswick,51 a famous denning judgment, we see this most clearly. for the sake of non-specialists in the audience may i say that the case concerned a sale of a business owned by mr. beswick to his nephew in exchange for the later paying a small amount of money per week to mr. beswick and a lesser amount to his widow if she survived him (which she did by about one year after the contract was concluded). after mr. beswick’s death, the nephew refused to honour his promise and the action by the widow (acting as administrate of her husband’s estate) failed at first instance. on appeal, lord denning began his judgment as follows: “old peter beswick was a coal merchant in eccles, lancashire. he had no business premises. all he had was a lorry, scales and weights. he used to take the lorry to the yard of the national coal board, where he bagged coal and took it round to his customers in the neighbourhood. his nephew, john joseph beswick, helped him in the business. in march, 1962, old peter beswick and his wife were both over 70. he had had his leg amputated and as not in good health. the nephew was anxious to get hold of the business before the old man died.”52 the simplicity of the language lulls you into missing its legal subtlety; but it is almost certainly part of a deliberate rhetorical strategy designed to win the audience over to the denning view. for most of its appeal is emotional, not intellectual. “thus, peter beswick is routinely called “old peter beswick”. which makes us both visualise him and pity him for his age…when “old’ is used to describe him in a context that suggests the nephew’s point of view, the epithet takes on a pejorative colouring: we tend to dislike the person who would view peter as “old” in that way. john joseph beswick (note the formality of the tripartite name) becomes the “the nephew” – depersonalised, unlike peter; he is rendered unrelated to peter by the use of the definite article instead of the pronoun (“his”) which we might expect; he wanted to “get hold of” the business. peter is made more personal and familiar to us by the evocation of his life and circumstances: “he had no business premises”; “all he had…”; he bagged the coal (himself, using his “scales and weights”); he “took it 51 [1966] ch 538. 52 beswick v beswick (1966) ch 538, [1968] ac 58. two kinds of justice: human and divine random thoughts à propos milton’s paradise lost 18 round” (not “delivered it”); his customers were “in the neighbourhood”. and, finally, he had his leg amputated.”53 could anyone hearing these opening words read out in court have any doubt where lord denning was going? and was he not siding, as he invariably did during his long judicial career, with the weak, the needy, or the oppressed?54 only if our imagined observer was a lawyer would he need to wait to hear more to discover the ingenious way the former master of the rolls found in order to achieve this ‘just’ result. and there is no doubt that, for him at least, this was not just the fair result but also the inevitable result. for, as he tells us a few lines further down, “if the decision of the vice chancellor truly represents the law of england, it would be deplorable.”55 though good argument has been known to change a judge’s views, i would be willing to take a bet that lord denning had made his mind up at a very early stage of this hearing; and this was in accord with the philosophy he manifested in all his judgments! the form of words he chose to use in his judgment supports, i think, my hunch. denning thus reminds us that form communicates. persuasion is often involved with stylistic choice. denning, like milton, often pursued an agenda; and denning like milton knew how to paint the characters he admired to come out as also being likable. and he strove for justice which, by being so human may also have been preferable to the divine. though milton’s real aims in paradise lost remain hugely controversial, i belong to those who believe that the richness and ambivalence of his text, capable of supporting differing interpretations, is one of its greatest sources of strength. so what a rich and fortunate life! am i referring to lord denning’s? of course. but to a much lesser extent, i am also grateful of my lot. for i was fortunate enough to meet him; to be enriched by his ideas, to be helped by his generous patronage; and now, thanks to the kindness of my friend sir martin nourse, to be given the chance to express an inadequate but posthumous “thank you”. lucky but also foolish (or perhaps courageous) to do it in a manner which, at first blush appears to be unorthodox; for it is anything but usual to argue that human justice may, at times, be better than divine justice. yet lord denning’s mistrust for orthodoxy might, i suspect, have tolerated this indiscretion. for it praises modern justice for having become more sensitised to weaknesses, more tolerant of human differences, more eager to respect human rights. we are wrong to criticise judges at the drop of a hat for 53 dennis r klinck ‘“criticising the judges” some preliminary reflections on style” (1986) 31 revue de droit de mcgill 655 at 680. 54 for which he was often criticised by academics obsessed by doctrine and often unable to match the judge’s sensitivity to changing times. 55 [1996] ch 538 at 550. the denning law journal 19 doing that. we are wrong to criticise lawyers for being legalistic or rapacious while ignoring the service they render to society. we are wrong to argue that the justice system is now “the most remote part of the administration from the ordinary citizen”. we are wrong to undermine on a daily basis all our institutions. as the person who works more on foreign law and in foreign systems than anyone else in this room tonight, i can tell you how much of what we criticise so readily here is deeply admired abroad. but that is a matter for another lecture. equity's manhattan project: the creation and evolution of the mare va injunction *john stevens lord denning was the twentieth century's pre-eminent exponent of the continuing creative potential of equity, 1 and of the ability of the judiciary to implement wide ranging law reform without the legislative intervention of parliament. whilst many of his reforms have fallen by the wayside,2 condemned both on the grounds of their dubious historical pedigree and their unsettling practical implications, the mareva injunction has survived the test of time to become a standard weapon in the armoury of commercial litigation. in bank mellat v. nikpour donaldson l.j. went so far as to describe the mareva injunction as one of the tw03 "nuclear weapons" of the law.4 lord denning himself, writing extra-judicially, has commented that the creation of the mareva jurisdiction was "the greatest piece of judicial law reform in my time."s if the evolution of the mareva injunction can be compared to the development of the atomic bomb, he was without doubt the robert oppenheimer of the law's "manhattan project," and the father of the mareva injunction. the purpose of this article is to chart the creation and evolution of this most enduring contribution of lord denning to the english legal system, and to consider what implications this history might have for legal development today . • lecturer in law, the university of birmingham. 1 see for example: boyer v. warbey [1953] 1 q.b. 234 (privity of estate extended to equitable leases); solle v. butcher [1950] 1 k.b. 671 (mistake in equity); binions v. evans [1972] ch. 359 (contractual licence a proprietary right); eves v. eves [1975] 1 w.l.r. 1338 ("new model" constructive trusts). 2 see for example: national provincial bank v. ainsworth [1965] a.c. 1175 (deserted wife's equity); grant v. edwards [1986] ch. 638 ("new model" constructive trust); ashburn anstalt v. arnold [1989] ch. 1 (contractual licence). 3 the other being the anton piller order see anton piller k.g. v. manufacturing processes ltd. [1976] ch. 55. 4 [1985] f.s.r. 87 at 92. 5 the due process of law, (butterworths, 1979) at p.134. 25 denning law journal i. creation of the mareva injunction a mareva injunction operates so as to restrain a defendant, or a third party holding a defendant's assets,6 from disposing of assets7 which could otherwise satisfy a judgement which might be awarded against him. historically the court was thought to possess no jurisdiction in equity to award such an injunction. in lister v. stubbs the court of appeal held not only that a fiduciary who had taken a bribe was not a constructive trustee of the money received on behalf of his principal, but also that a principal was not entitled to an injunction to restrain his fiduciary from dealing with the investments he had acquired with the bribe money, nor to require him to pay that sum into court on the grounds that he was frimafacie a debtor to the principal in respect of the sum he had received. cotton l.j. was of the opinion that to grant such an order would introduce a "new and entirely wrong principle.,,9 thus the court would not act to protect the prospective rights of a judgement creditor, even where a prima facie case was extremely strong. this historic barrier to injunctive relief to prevent the dissipation of assets was consigned to history by lord denning m.r. in nippon yusen kaisha v. karageorgis.1o the case concerned the failure of the defendant ship charterers to pay the agreed hire. the defendants had assets in london banks, and the plaintiff owners feared that these funds would be removed from the jurisdiction to prevent their being required to meet a judgement entitling them to the outstanding hire. they therefore sought an interlocutory injunction to restrain the defendants removing their assets from the jurisdiction. donaldson j. refused the grant of such an injunction, but the court of appeal held that an order should be made. lord denning m.r., with whom browne and geoffery lane l.jj. agreed, noted that it had not been the practice of english courts to restrain the disposal of a defendant's assets in advance of a judgement, but held that this "practice"should be revised. he considered that the court possessed the jurisdiction to award an injunction in cases where there was a strong 6 see: devonshire, "the implications of third parties holding assets subject to a mareva injunction" [1996] l.m.c.l.q. 268; united mizrahi bank ltd. v. doherty [1998] 2 all e.r. 230. 7 usually the assets of the defendant will comprise money held by a bank. however the assets affected by a mareva injunction may include chattels: allen v. jambo holdings ltd. [1980] 1 w.l.r. 1252; cbs united kingdom ltd. v. lambert [1983] ch. 37. 8 (1890) 45 ch.d. 1. 9 ibid at p.14. 10 [1975] 1 w.l.r. 1093. 26 equity's manha itan project prima facie case that the hire was owing under section 45 of the supreme court of judicature (consolidation) act 1925, which provided that the court could grant an injunction in all cases in which it appears to the court to be just or convenient so to do. 11 the alleged jurisdiction to grant such an injunction was more fully explained in mareva compania naviera s.a. v. international bulkcarriers s.a., which similarly concerned unpaid hire due under a charterparty, and from which the mareva injunction takes its name. 12 lord denning considered that section 45 granted the court a wide ranging jurisdiction to grant an injunction whenever a plaintiff is seeking to protect a legal or equitable right, citing in support the judgement of his victorian predecessor sir george jessel m.r. in beddow v. beddow who had stated that he enjoyed "unlimited power to grant an injunction in any case where it would be right or just to do so.,,13 lord denning considered that a creditor who has the prima facie right to have a debt paid enjoyed a sufficient legal right to raise the jurisdiction of the court to protect it by way of an injunction, even though he has not formally established his right by actually obtaining judgement for it. he thus concluded that where: "it appears that the debt is due and owing and there is a danger that the debtor may dispose of his assets so as to defeat it before judgement the court has jurisdiction in a proper case to grant an interlocutory judgement so as to prevent him disposing of those assets.,,14 despite the obvious practical advantages of such a jurisdiction to restrain potential defendants from disposing of their assets and leaving a plaintiff with no effective remedy, the purported basis of it was spurious.15 lister v. stubbsl6 was not the only rreceding authority to deny the existence of any such jurisdiction. 1 technically the court of appeal was 11 in rasu maritima s.a. v. pertamina [1978] q.b. 644 he subsequently drew support for the development of the mareva jurisdiction from local customs in the city of london in the eighteenth century allowing the "foreign attachment" of assets. however it is now clear that the mareva injunction is not a form of attachment, since it operates in personam and does not entitle the claimant to any proprietary interest in the assets affected: mercedes-benz a.g. v. leiduck [1995] 3 all e.r. 929 at 939 per lord mustill. 12 [1975] 2 lloyd's rep. 509. 13 (1878) 9 ch.d. 89. 14 supra n.12 at p.51o. ]5 see: meagher, gummow and lehane, equity doctrines & remedies, (3rd ed.,sydney, butterworths, 1992) at pp.607-609. 16 supra n.8. ]7 see: robinson v. pickering (1881) 16 ch. d. 660; newton v. newton (1885) 11 p.d. 11; burmester v. burmester [1913] p. 76; scott v. scott [1951] p. 193. 27 denning law journal bound by precedent. is the fundamental objection to the award of such an injunction was the absence of any legal or equitable right on the part of the defendant protected by it. 19 the plaintiff may have enjoyed a potential or putative right, but such a right did not crystallise until judgement was awarded in his favour. roskill l.j. alluded to this difficult~ in mareva compania naviera s.a. v. international bulkcarriers s.a. 0 when he indicated that lister v. stubbil could be distinguished on the grounds that the owners enjoyed a legal or equitable right under the terms of the charter, which provided that they should "have a lien upon all cargoes ...for any amounts due." however he noted that the full extent and nature of that right "has long been a controversial matter which may have to be resolved." this reliance on the tenuous existence of such a lien justifying injunctive protection implies that the award of the injunction was otherwise novel,22 and not founded upon the existence of any other legal or equitable right which warranted protection. the award of what quickly became known as "mareva" injunctions was thus an example of spontaneous judicial creativity ex nihilo rather than of gradual legal development. a combination of the limited consideration of earlier authorities and the dubious interpretation of a statutory provision23 which can only be described as a "sleight of hand" enabled lord denning to assert the jurisdiction of equity to restrain a defendant parting with his assets before judgement is awarded against him. in siskina (cargo owners) v. distos compania naviera s.a. lord hailsham suggested that some of the arguments supporting the mareva jurisdiction were "specious." 24it has been commented that in inventing this mareva 18 mills v. northern railway of buenos ayres co. (1870) l.r. 5 ch. app. 621 at 628, per lord hatherley l.c. in rasu maritima s.a v. pertamina supra n.ll. lord denning sought to differentiate lister v. stubbs supra n. 8. on the grounds that it did only applied to defendants who were outside of the jurisdiction. in the light of subsequent developments it is clear that this differentiation will not stand: mercedes-benz ag. v. leiduck supra n.ll at p. 939 per lord mustill. 19 north london railway co. v. great northern railway co. (1883) 11 q.b.d. 30; thome v. british broadcasting corporation [1967] 1 w.l.r. 1104. 20 supra n.12 at pp.511-512. 21 supra n.8. 22 mercedes-benz ag. v. leiduck supra n.ll at p.940 per lord mustill. 23 in mercedes-benz ag. v. leiduck ibid lord mustill considered that the argument that the language of s.45 of the supreme court of judicature (consolidation) act 1925 was sufficiently wide to found the jurisdiction to grant a mareva injunction was inconsistent with the interpretation of that provision by the house of lords in siskina (cargo owners) v. distos compania naviera s.a. [1979] a.c. 210, which had approved the judgement of cotton l.j. in north london railway co. v. great northern railway co. supra n.19. 24 [1979] a.c. 210 at 261. 28 equity's manha itan project injunction the court of appeal was "nakedll exercising legislative power and usurping the functions of parliament.,,2 the dubious authenticity of the jurisdiction to award a mareva injunction must, however, be balanced against the practical imperatives that led the court of appeal to countenance such an invention. in mareva compania naviera s.a. v. international bulkcarriers s.a. the court of appeal stressed the overriding danger that the owners might not recover the hire owed if money held within the jurisdiction, and therefore readily available to meet any subsequent judgement debt, was removed.26 roskill l.j. indicated that in the circumstances such removal would cause the plaintiffs to suffer a "grave injustice" which it would be wrong to tolerate.27 ii. legitimation of the mare va injunction despite the dubious origins of the mareva injunction it quickly became a popular weapon in commerciallitigation.28 its validity was challenged before the comt of appeal in rasu martina s.a. v. pertamina,29 but mareva compania naviera s.a. v. international bulkcarriers s.a.30 was followed. in siskina (cargo owners) v. distos compania naviera s.a. the correctness of the jurisdiction was not raised as an issue before the house of lords, and its legitimacy was not therefore determined.31 however parliament effectively assumed32 the legitimacy of the mareva jurisdiction by the enactment of section 37(1) of the supreme court act 1981, which is the lineal successor of section 45 of the supreme court of judicature (consolidation) act 1925. whilst section 37(1) repeated the general jurisdiction of the court to grant an injunction "in all cases in which it appears to the court to be just and convenient to do so" subsection (3) expressly extended the infant mareva jurisdiction by providing that: "the power of the high court under subsection (1) to grant an interlocutory injunction restraining a party to any proceedings from removing from the jurisdiction of the high court, or otherwise dealing with, assets located 25 meagher, gummow and lehane, equity doctrines & remedies, supra n.15 at p.608. 26 supra n.12 at pp.511-512. 27 ibid at p.511. 28 see siskina (cargo owners) v. distos campania naviera s.a supra n.24 at pp.215-216 per kerr j. 29 supran.l1. 30 supra n.12 at pp.511-512. 31 supra n.24. 32 mercedes-benz a.g. v. leiduck supra n.ll at p.938 per lord mustill. 29 denning law journal within that jurisdiction shall be exercisable in cases where that party is, as well as in cases where he is not, domiciled, resident or present within that jurisdiction." orthodoxy now regards this section as providing the jurisdictional basis of the mareva injunction.33 thus without any express acceptance by the house of lords, or by parliament, the mareva injunction was accorded legitimate status.34 however as it is unlike other interlocutory injunctions the mareva jurisdiction has been regarded as sui generis.35 iii. extension of the mareva jurisdiction once the mareva injunction had been brought into existence the scope of its potential application was gradually enlarged. initially it was thought to be confined to circumstances where the defendant was abroad, held assets within the jurisdiction which might be removed from it, and in respect of proceedings which would be brought within the jurisdiction. however, as millett l.j. summarised in credit suisee fides trust v.cuoghi: "it was progressively extended, in 1979 to english defendants, in 1982 by restraining defendants from dissipating their assets within the jurisdiction, and finally in 1990 by restraining defendants from dealing with their assets both inside and outside the jurisdiction.,,36 (a) jurisdiction to grant a mareva injunction against a defendant resident within the jurisdiction the early cases in which the mareva jurisdiction emerged concerned unpaid ship hire. as kerr j. had explained in siskina (cargo owners) v. distos compania naviera s.a. the practical reasons for the evolution of the jurisdiction were the depressed state of the freight market, the difficulty owners faced in arresting their ships as a means of enforcing their claim against the cargo, and the fact that the ships were managed from london, had been fixed on the baltic exchange and that the charterparties contained a london arbitration clause.37 given these circumstances the jurisdiction developed in a context where the assets 33 derby & co. ltd. v. weldon (no.s 3 & 4) [1990] ch. 65 at 76, per lord donaldson m.r .. 34 south carolina insurance co. v. assurantie maatschappij "de zeven provincien" n. v. [1987] a.c. 24 at 39-40, per lord brandon; mercedes-benz a.g. v. leiduck supra n.ll at ~.938 per lord nicholls. 5 mercedes-benz a.g. v. leiduck supra n.ll at p.940 per lord mustill. 36 [1997] 3 all e.r. 724 at 727. 37 supra n.24 at pp.2l5-2l6. 30 equity's manha itan project sought to be impounded were within the jurisdiction but the defendant was abroad.38 in siskina (cargo owners) v. vistos compania naviera s.a. the court of appeal assumed, but did not decide, that the mareva jurisdiction was confined to such cases and was not exercisable where the defendant was not abroad.39 however this limitation, if it in fact existed,40 was expressly removed by parliament in section 37(3) of the supreme court act 1981, which was cited above and provides that a mareva injunction is available where a party "is...domiciled, resident or present within that jurisdiction." (b) jurisdiction to grant a mareva injunction where there is a danger that the defendant will dispose of assets within the jurisdiction in the early cases it was also thought that a mareva injunction was only available where it was felt that a defendant might remove his assets from the jurisdiction, but that there was no jurisdiction to make an order which would restrain a defendant from disposing of his assets within the jurisdiction. in prince abdul rahman bin turki al sudairy v. abu-taha lord denning m.r. expressed his opinion that a mareva injunction should be available if there was a danger that a defendant would dispose of his assets within the jurisdiction.4\ despite doubts as to the validity of his comments,42 which were strictly obiter, this proposition was later accepted, thus widening the scope of circumstances in which a plaintiff could obtain injunctive relief.43 (c) jurisdiction to grant a mareva injunction preventing the dissipation of assets held abroad if parliament extended the scope of the mareva jurisdiction by section 37(3) ofthe supreme court act 1981 so as to encompass a defendant who was present within the jurisdiction, the courts further extended its scope so as to enable the court to order a defendant not to dispose of assets which 38 as was noted above, this was the very grounds upon which lister v. stubbs supra n.8 had been distinguished, thus justifying the existence of the mareva jurisdiction. 39 supra n.24 at p.229 per lord denning m.r. 40 in chartered bank v. daklouche [1980] 1 w.l.r. 107 it had been held that a mareva injunction could be granted irrespective of whether the defendant was resident abroad or inside the jurisdiction. 4\ [1980] 1 w.l.r. 1268. 42 faith panton property plan ltd. v. hodgetts [1981] 1 w.l.r. 927; a.j. bekhor & co. ltd. v. bilton [1981] q.b. 923. 43 z ltd. v. a-z andaa-ll [1982] q.b. 558; ninemia maritime corporation v. trave schiffahrtsgesellschaft m.b.h. und co. k.g. [1983] 1 w.l.r. 1412; cbs united kingdom ltd. v. lambert supra n.7. 31 denning law journal were held outside of the jurisdiction.44 in derby & co. ltd. v. weldon (no.s 3 & 4/5 the court of appeal concluded that the court possessed the jurisdiction to grant mareva injunctions against foreign companies46 with no assets in the united kingdom. all three members of the court of appeal stressed the evolving nature of the mareva jurisdiction, and their right to develop it so as to meet changing commercial needs. lord donaldson m.r. emphasised that the practice of the commercial courts must adapt to take account of "rapidly growing commercial and financial sophistication" so that they meet "the current wiles of those defendants who are prepared to devote as much energy to making themselves immune to the courts' orders as to resisting the making of such orders on the merits of their case.,,47 neil l.j. stated that the relatively recent emergence of the mareva jurisdiction militated against concluding that it had become "ossified" and incapable of further evolution to meet changing circumstances.48 he thus held that it was time to: "state unequivocally that in an appropriate case the court has power to grant an interlocutory injunction even on a world wide basis against any person who is properly so before the court, so as to prevent that person by the transfer of his property frustrating a future judgement of the court.,,49 this extension in the potential scope of mareva injunction was possible because the order operates in personam and not against the assets impounded.5o initially the courts held that such world-wide injunctions should only be granted in "exceptional circumstances.,,51 more recently the court of appeal has further extended the jurisdiction by holding that a plaintiff seeking a world-wide mareva injunction need only demonstrate that it would be expedient to grant such an order. 52 44 ashianti v. kashi [1987] q.b. 888; babanaft international co. s.a. v. bassatne [1990] ch. 13; republic of haiti v. duvalier [1990] q.b. 202; derby v. weldon (no.1) [1990] ch. 48. 45 supra n.33. 46 one panamanian and the other luxembourg. 47 supra n.33 at p.77. 48 ibid at p.92. 49 ibid at p.93. 50 see derby v. weldon (no.6) [1990] 1 w.l.r. 1139 at 1149 per dillon l.j.. 51 derby & co. v. weldon (no.1) supra n.44 at p.ss per may l.j.; re bcci s.a. (no.9) [1994] 3 all e.r. 764 at 787, per rattee j. 52 credit suisee fides trust v. cuoghi supra n.36. 32 equity's manhattan project (d) jurisdiction to grant a mareva injunction in aid of proceedings in a foreign court in siskina (cargo owners) v. distos compania naviera s.a.53 the house of lords held that the court did not possess the jurisdiction to order a mareva injunction against a foreign plaintiff with assets within the jurisdiction where the english court had no jurisdiction to pursue any action against the defendant and any action would only be able to be pursued abroad.54 in so doing they reversed the decision of the majority of the court of appeal, where lord denning had argued for a bold judicial extension of the right to grant an injunction. the house of lords held that such an extension would require legislation. lord diplock remarked that it was "not for the court of appeal or for your lordships to exercise these legislative functions, however tempting this may be,,,55 and lord hailsham criticised lord denning for pre-empting parliament and thus usurping the function of the legislature.56 apart from his perceived constitutional impropriety, lord denning's attempted pre-emption of parliament was to be vindicated by section 25 of the civil jurisdiction and judgments act 1982, which empowered the court to grant an injunction in respect of proceedings brought anywhere in the world.57 as millett l.j. remarked in credit suisee fides trust v. cuoghi: "the position has now been reached ...that the high court has power to grant interim relief in aid of substantive proceedings elsewhere of whatever kind and wherever taking place.,,58 53 supra n.24. 54 in the circumstances an action could not be brought in england but could be brought in italy. 55 supra n.24 at p.260. 56 ibid at p.262. 57 initially the jurisdiction under s.25 was confined to european countries which were contracting parties to the brussels and lugano conventions, but by virtue of the civil jurisdiction and judgements act 1982 (interim relief) order 1997, s.1. 1997/302 the jurisdiction was extended to non-convention countries. for the position at common law before this extension of the scope of s.25 see: xv. y [1990] 1 q.b. 220; mercedes-benz a.g. v. leiduck supra n.11; (1996) 112 l.q.r. 8 (l. collins); [1996] cll. 12 (n. h. andrews); (1996) 112 l.q.r. 397 (p. st j. smart); credit suisse fides trust v. cuoghi supra n.36 at p.733 per lord bingham c.l. see also: capper, "the trans-jurisidictional effects of mareva injunctions" (1996) 15 c.j.q. 211; devonshire, "the implications of third parties holding assets subject to a mareva injunction" supra n.6. 58 supra n.36 at p.724 at 728. see also: capper, ibid. 33 denning law journal (e) jurisdiction to grant a world-wide mareva injunction in aid of proceedings in aforeign court since section 25 of the civil jurisdiction and judgments act 1982 extended the power of the court so as to entitle it to grant mareva injunctions in respect of foreign proceedings the question inevitably arose whether the english courts possessed the jurisdiction to grant a worldwide mareva injunction against the assets of defendant in aid of proceedings in a foreign jurisdiction. in rosseel n. v. v. oriental commercial and shipping (uk) ltd. the court of appeal considered that such a world-wide mareva injunction should only be granted in very exceptional circumstances, and that ordinarily the court should only act to support another jurisdiction to the extent of its own territorial jurisdiction.59 this restriction was simply a matter of practice rather than jurisdiction, and lord donaldson m.r. stressed that the court enjoyed the jurisdiction to grant such an order under section 25(1),60 whilst section 25(2) expressly conferred upon it the right to refuse relief. this selfimposed limitation on the willingness of the court to grant a world-wide mareva injunction in support of foreign proceedings was more recently reaffirmed by the court of appeal in s. & t. bautrading v. nordling where saville l.j. held that the decision in rosseel n. v. was binding and that nothing in the intervening years had occurred to justify departing from it.61 in contrast in credit suisee fides trust v. cuoghi a differently constituted court of appeal held that a world-wide mareva injunction in support of foreign proceedings should be granted unless it is "inexpedient" to grant such an order as distinct from a merely domestic order, thus eliminating any unnecessary gloss on the language of section 25(2) which states that the court may refuse relief if the subject matter of the groceedings in question "makes it inexpedient for the court to grant it." millett l.j. considered that the refusal of the court of appeal to grant an injunction in rosseel n. v. was "surprising," especially since the defendants in that case were resident in england, even though the proceedings in question were brought in new york.63 whilst the court of appeal emphasised the need to exercise caution in the grant of such injunctions so as to not to make orders conflicting with those of the court in which the proceedings will be heard, thus leading to 'jurisdictional conflict, confusion or disharmony,,,64 the decision does seem to indicate 59 [1990] 3 all e.r. 545 60 the jurisdiction was exercised in republic of haiti v. duvalier supra n.44. 61 [1997] 3 all e.r. 718 62 supra n.36 at p.727. 63 ibid at p.731. 64 ibid at p.735 per lord bingham c.j .. 34 equity's manhattan project that a more liberal practice will be adopted in respect of the grant of interim relief where proceedings are brought outside of the jurisdiction, especially if the defendant is resident within the jurisdiction, as was the case in both rosseel and credit suisee fides trust. the mere fact that the english court possesses the jurisdiction to grant a mareva injunction in aid of proceedings in a foreign court does not necessarily mean that such an injunction will be enforceable outside of the jurisdiction. although injunctions granting interim relief constitute judgements within article 25 of the brussels convention, they will be unenforceable in contracting states if they were granted ex parte, since they will fall within the exemption of article 27(2).65 (f) jurisdiction to grant a mareva injunction against a sovereign state finally, it should be noted that the jurisdiction to grant a mareva injunction extends to encompass an order against a foreign state if the right to sovereign immunity under the sovereign immunity act 1978 has been waived. the right to immunity extends expressly to a central bank or other monetary authority.66 thus in camdex v. bank of zambia (no.2) the court of appeal held that the court possessed the jurisdiction to grant a mareva injunction against assets of the zambian central bank which were within the jurisdiction because it had expressly and irrevocably waived its right to plead sovereign immunity in the agreement that it had entered with the plaintiff.67 (g) safeguards to preventing oppressive exercise of the mareva jurisdiction the mareva injunction has evolved to become a formidable procedural weapon, and is usually obtained via an ex parte application. it has the potential to restrict a defendant's ability to deal with his property, whether within or without the jurisdiction, until a plaintiff s case has been resolved. in order to prevent abuse the courts have circumscribed and qualified their willingness to grant such injunctions with safeguards intended to protect the defendant from unjust and inappropriate coercion. an injunction will not be granted unless the plaintiff is able to demonstrate a good arguable case on the merits,68 thus exceeding the threshold ordinarily required for the grant of an interlocutory injunction.69 where a contract is involved an injunction will only be granted if the 65 de cavel v. de cavel (no.1) [1979] e.c.r. 1055; denilauler v. couchet freres [1980] e.c.r. 1553; emf records ltd. v. modem music [1992] 1 q.b. 115. 668.13(3). 67 [1997] 1 all e.r. 728. 68 nimenia supra n.43; aiglon ltd. v. gau shan ltd. [1993] lloyd's rep. 167. 69 american cyanamid co. v. ethicon ltd. [1975] a.c. 396. 35 denning law journal contract has been breached or the defendant has threatened to breach.7o the plaintiff is required to make full and frank disclosure of all matters in his knowledge71 and give grounds for believing that defendant will dissipate or remove his assets.72 the plaintiff will also be required to give an undertaking in damages to recompense the defendant if his claim subsequently proves to have been unjustified,73 although it remains a matter of discretion for the court whether to require the plaintiff to pay damages if the defendant suffers loss as a consequence of the injunction.74 where a world-wide mareva injunction is granted the plaintiff will be required to give an undertaking not to seek to enforce the injunction in any country other than england and wales,75 and it may be appropriate to require an undertaking not to start any fresh proceedings in foreign courts arising out of the same subject matter. these limitations are intended to prevent the oppression of the defendant by exposure to a multiplicity of proceedings. a defendant will also be entitled to draw on funds frozen by a mareva injunction to meet his legitimate expenses, including the reasonable legal costs of defending the subsequent action. 76 iv. the creation of the mare va injunction as a paradigm for the continuing creativity of equity it has been seen how, over a twenty-year period, a jurisdiction has emerged to award an injunction of an entirely novel nature. the authenticity of this jurisdiction is now beyond question,77 having been assumed by parliament, accepted by the house of lords, adopted in other common law jurisdictions,78 and most significantly having come to serve a crucial role in the practice of commercial litigation. it is inconceivable that the jurisdiction will be overturned on the grounds that it is a creature of heresy. whilst the eventual involvement of the legislature in the legitimation of the mareva injunction should not be overlooked, in reality 70 the veracruz [1992] 1 lloyd's rep. 353; the p [1992] 1 lloyd's rep. 470; zucker v. tyndall holdings plc [1992] 1 w.l.r. 1127. 71 third chandris corp. v. unimarine sa [1979] q.b. 645. 72 ketchum v. group public relations [1997] 4 all e.r. 374. 73 third chandris corp. v. unimarine sa supra n.71. 74 balkanbank v. taher [1994] 4 all e.r. 239. 75 derby & co. v. weldon (no.1) supra n.44; practice direction (mareva injunctions and anton piller orders) [1994] 1 w.l.r. 1233; practice direction (mareva injunctions and anton piller orders) [1996] 1 w.l.r. 1552. 76 pcw (undertaking agencies) ltd. v. dixon [1983] 2 ali e.r. 697; law society v. shanks (1987) 131 s.j. 1626; fitzgerald v. williams [1996] 2 ali e.r. 171. 77 mercedes-benza.g. v. leiduck supra n.ll at p.944 per lord nicholls. 78 hunt v. b.p. exploration company (libya) ltd. [1980] 1 n.z.l.r. 104 (new zealand); jackson v. sterling industries ltd. (1987) 162 c.l.r. 332 (australia). 36 equity's manhattan project the jurisdiction was the product of judicial creativity and an assertion of the ability of equity to create a remedy adequate to meet the needs of the moment. equity has always maintained the need for principle and practice to evolve rather than to remain static/9 which includes the ability to devise new rights and remedies. at times there has been a marked reluctance to countenance any enduring creative power of equity, on the grounds that this would usurp the proper function of parliament,80 lead to radically unacceptable uncertainty,8l or that any development should be confined to the extension and development of existing principle.82 as has been noted, all of these objections have been raised against the mareva injunction, and yet it has endured. they are not insuperable barriers to the creation of new rights and remedies. lord denning fathered the mareva jurisdiction. his approach was characterised by a boldness which bordered on the brazen. in siskina (cargo owners) v. distos s.a.83 he urged judges not to be timorous in the face of an obvious need for reform to meet injustice, modifying a hymn of william cowper to this effect: "ye fearful [judges], fresh courage take, the clouds ye so much dread, are big with [justice], and shall break in blessings on your head.,,84 he considered that this ethos would enable the judiciary to "find a good way to law reform," exercising the court's inherent jurisdiction to lay down the practice and procedure of the courts. the house of lords rejected such an approach, regarding any judicial extension of the rules governing the jurisdiction to serve a mareva injunction as an unacceptable appropriation of the powers of parliament. in contrast lord denning was unwilling to stand by and allow the defendants to dissipate their assets only for parliament to "shut the stable door after the steed has been stolen." his prescience of the need for change was only ultimately vindicated by the extension of the scope of section 25 of the civil jurisdiction and judgments act 1982 by the civil jurisdiction and 79 see re hallett's estate (1880) 13 ch. d. 696 at 710, per jessel m.r .. 80 western fish products v. penwith district council [1981] 2 all e.r. 204; westdeutsche landesbank girocentrale v. islington l.b.e. [1996] 2 all e.r. 961. 81 cowcher v. cowcher [1972] 1 w.l.r 425 at 430 per bagnall j.; allen v. snyder [1977] 2 n.s.w.l.r. 685; westdeutsche landesbank girocentrale v. islington l.b.c ibid at p.992 per lord browne-wilkinson. 82 re diplock [1948] ch.465; cowcher v. cowcher ibid. 83 supra n.24. 84 ibid at 236. 37 denmng law journal judgements act 1982 (interim relief) order 1997.85 the failure to act boldly, as lord denning had suggested, bedevilled the law of jurisdiction for almost twenty-years, and in mercedes-benz a.g. v. leiduck86 lord nicholls considered, in his dissenting opinion, that the house of lords had taken a "wrong turning in the siskina. " this time-lag between the recognition of the need for change, and the response of the legislature accomplishing it, demonstrates the problems associated with a reliance on parliament as the sole agent of legal reform. the pressures on parliamentary time imposed by a government's legislative programme inevitably consign sensible proposals for reform to the back of the queue, as witnessed by the many law commission reports which have not been implemented. moreover, judges feel constrained to preserve the status quo even where there is no convincing argument in its favour. in prudential assurance co. ltd. v. london residuary body the house of lords felt unable to offer any coherent rationale for the historic common law requirement that a lease must be for a term certain, thus requiring a fixed maximum duration, but nevertheless considered that it would be inappropriate to overturn such a long standing rule.8? such judicial reticence will only ensure that the law remains shackled by the chains of history,88 even where they have no contemporary relevance. at the end of this century, one hundred years after lord denning's birth, there are significant aspects of the law of equity which are ripe for change if the judiciary are willing to take the initiative. there is near unanimity amongst theorists that the present distinctions between the common law and equitable rules of tracing, especially concerning their respective ability to follow property though a mixed fund, are unjustifiable and should be abolished in the interests of justice. 89 the house of lords has raised the prospect of the introduction of a restitutionary remedial constructive trust,90 which is in practice uncannily similar to lord denning's proposed "new model" constructive trust. it has been argued that the established principles of "knowing receipt," whereby a stranger to a trust is liable to account as a constructive trustee for the value of trust property he received other than as a bonafide purchaser, should be replaced by a strict liability to make restitution on the grounds of mere receipt alone, without the need to demonstrate any degree of fault, actual 85 s.i. 1997/302 86 supra n.ll at p.951. 87 [1992] 3 all e.r. 504 88 united australia v. barclays' bank ltd. [1941] a.c. 1 at 29 per lord atkin. 89 see for example, the comments of millett l.j. in jones (f.e) & sons v. jones [1996] 4 all e.r.721 at 729. 90 westdeutsche bank v.islington l.b.c. supra n.80. 38 equity' s manhattan project or constructive.91 if such developments are to occur they will require judicial boldness equivalent to that demonstrated by lord denning demonstrated in the creation of the mareva jurisdiction, abandoning the shackles of historic precedents and the fear of constitutional impropriety in the interests of justice and the demands of the moment. it remains to be seen whether the judges will take such steps. the history of the mareva jurisdiction demonstrates that radical innovation is possible. the subsequent legitimation and consolidation of the mareva jurisdiction demonstrates that each individual reform will have to stand the test of time before it is accepted as orthodox, having been judged on its merits through usage, thus proving whether it achieves practical justice without sacrificing a legitimate concern for legal certainty and stability. 91 see for example: harpum, "the basis of equitable liability"in birks (ed.) the frontiers of liability vo!.1 (oxford university press, 1994); a. j. oakley, "the liberalising nature of remedies for breach of trust" in oakley (ed.), trends in contemporary trust law (clarendon press, 1996); at pp.247-251; jill martin, "recipient liability after westdeutsche" [1998] conv. 13; lord nicholls, "knowing receipt: the need for a new landmark," in cornish, nolan, o'sullivan & virgo, restitution past, present & future: essays in honour of gareth jones (hart publishing, 1998), chapter 16. 39 neither cloistered nor virtuous? judges and their independence in the new millennium* michael j beloffq.c. ** it is a great privilege for me to be invited to give this lecture which commemorates one of the outstanding common law judges of the century whose family are so happily represented here today and to follow, like a solitary page behind a line of wenceslases, in the footsteps of the far more august speakers who have preceded me in this role. i know how much the invitation pleased my father, lord beloff, a faithful member of this club, and only regret that he did not live long enough to save me from errors and infelicities that, in the absence of his usual wise guidance, it will inevitably contain. i have chosen as my title a corruption of one of lord atkin's most celebrated dicta "justice is not a cloistered virtue" uttered as part of the advice of the privy council to his majesty in ambard v. attorney-general for trinidad and tobago. i the case revolved around the conviction for contempt of court of the editor for a leading article in the port of spain gazette entitled "the human element." the editorial criticised in a manner that would have astounded the editor of the sun, both for its polysyllabic vocabulary and for its moderate tone, the alleged inequality of sentences passed in the islands for certain criminal offences. lord atkin's observation was apt for my purposes in a number of overlapping ways. it is not, i hasten to assure you, that i intend to verge on the contemptuous in my remarks about the judiciary of england and wales. many of my best friends are judges and i hope that this situation persists beyond the conclusion of this lecture and at least as long as i remain a practising member of the bar. but i wish to raise some questions about them with, of course, the greatest respect, a phrase that, i will explain for any non-lawyers present, when uttered in court, bears the precise opposite of its literal meaning. * the atkin lecture, the reform club, 18th october, 1999. ** president, trinity college, oxford, judge of court of appeal, jersey and guernsey, master of the bench of gray's inn. i (1936] ac. 322 at 335. 153 the denning law journal i wish to suggest that contemporary criticism by others than myself of judges would stretch even the tolerance of lord atkin. i wish to examine whether and to what extent, judges either as volunteers or as conscripts have now emerged so far from the cloister into the arena as to put in jeopardy the independence which is their single most precious virtue. and i wish to consider how the process of erosion can be halted, if it has not already gone too far. let me start, as so much discussion about the role of the contemporary judiciary in england must start, with the case of general pinochet. for i have little doubt that the case and its consequences will have had as dramatic an effect on perception and, as a result, treatment of the judiciary as any other single happening in the recent past. the bizarre sequence of events in the pinochet case which led to the three decisions indexed blandly in the law reports as ex p. pinochet ugarte nos.],2 i and 34 is well known. in the first case the house of lords split three-two in favour ofthe proposition that the general was not immune for reasons of sovereignty from extradition to spain on charges oftorture. in the second, the house unanimously set aside that decision on the grounds of apparent bias of one of the law lords involved, lord hoffmann, who had not disclosed his links to amnesty international, an intervener in the proceedings. in the third, the house split five ways on the same issue as had been raised in the first h.::aring and, while favouring, again by a bare majority, extradition did so on extremely limited grounds, indeed advised the home secretary to reconsider whether to exercise his discretion to extradite. the case is now poised on a journey from the bow street magistrates to the divisional court. 5 there were some obvious lessons to be learned. the first and foremost was the critical importance of the twin precepts that justice not only be done, but be seen to be done, and that, for that purpose, no man may be a judge in his own cause. as lord hope observed: "one ofthe cornerstones of our legal system is the impartiality of the tribunals by which justice is administered;,,6 and as lord nolan, the most recent, ifnot the onlie 2 r v. bow street metropolitan stipendiary magistrate ex parte pinochet ugarte (no.1) p 998] 3 wl.r. 272. r v. bow street metropolitan stipendiary magistrate ex parte pinochet ugarte (no.2) ii999] 2 wl.r. 272. r. v. bow street metropolitan stipendiary magistrate ex parte pinochet ugarte (no.3) ~1999] 2 wl.r. 827. general pinochet was not extradited by the home secretary on the grounds of his poor health. he subsequently returned to chile. 6 [1999] 2 wl.r. 272 at 288. 154 the atkin lecture 1999 begetter of the standards which should guide those in public life added "in any case, where the impartiality of a judge is in question the appearance of the matter is just as important as the reality.,,7 the second was that our judges can nowadays be involved in decisions freighted with political implications of the highest sensitivity: it indeed may strike someone not versed in the niceties of extradition law as odd that english judges should have any role in deciding whether a.former leader of a friendly foreign state must stand trial in the courts of another friendly foreign state. the third is that a result of litigation can often depend upon the composition of the tribunals. one could construct, what i shall loosely call a pro-pinochet majority out of the members ofthe appellate committee who sat in cases one and three. quot judices tot sententiae, if! may surreptitiously make use of a language now barred in the age of woolf the vulpine era from the vocabulary of our courts. this proposition, familiar even to pupil barristers, let alone the subscribers to the american realist school of jurisprudence, may not have made hitherto a similar impact upon the general public. on the clapham omnibus, they are said to speak of other things. but the attention of that public is now inevitably focussed upon who selects the law lords, and who indeed selects the panels in any particular appeal, and, more generally, how senior judges are chosen for their distinctive constitutional role. the fourth, and maybe most doleful, is that judges can make mistakes. lord hoffmann has never explained publicly the circumstances of his non-disclosure; but his failure has been expensive in terms of his own reputation and the reputation of the judiciary as well as to the public purse. i lack nothing in admiration for him. he was in a former incarnation my roman law tutor at oxford. he is nowadays recognised as an intellectual powerhouse among even the present law lords. but as homer nodded, so, alas, did hoffmann. i want to develop some further thoughts from this point of departure. judges share with other lawyers the unpopularity which inevitably stems from involvement in other peoples disputes; if there were no disputes, there would be no need for judges; and the exercise of dispute resolution, touches the lives of citizens on a micro, if not a macro basis, more intimately than the activities of other organs of government. from the very nature of their function springs the very imperative for their independence. but we take it as axiomatic that our judiciary not only should be, but are independent by which we mean broadly that the judges approach cases before them, untainted by any interest in their outcome, free from any outside pressure to reach a decision in a particular way, and excluding from their consideration, so far as is humanly possible, any of those prejudices 7 ibid at 288. 155 the denning law journal which are the product of class, race, gender, or genes. as lord saville has recently written, the best judges are "people who will apply the rule of law, people who are able, and seen to be able, to put aside their personal feelings and . " 8views.. we institutionalise judicial independence by immunizing the higher judiciary from dismissal other than by address to both houses of parliament;9 and by legislation which prevents judicial salaries from being diminished other than by statute itself. 10 it is well settled for the same policy reasons that judges as well as other participants in the forensic process are immune from action for statements made in the course of proceedings, even if made maliciously, ii and certainly if made foolishly! we view with a sense of distaste but also of comparative satisfaction stories from overseas such as and 1 take them at random from the last twelve months the attack by the government of the people's republic of china on the decision of the court of final appeal to give mainland children born to hong kong residents a right of abode in the former colony: the invitation extended by president mugabe to three supreme court judges of zimbabwe to resign because they pointed out in a judgment that armed forces are not entitled to arrest civilians: the unconvincing verdict on bizarre sexual charges against former deputy prime minister anwar in malaysia; and, least remarked in this context but maybe the most telling of all, the acquittal of president clinton on charges of impeachment, where the requisite dispassionate analysis by the senate, pro tern constituted as a court of law and fact, curiously led all democrats to one conclusion and all republicans to another. no better example could be furnished of politics trumping law. but though such gross aberrations would not conceivably occur in this jurisdiction, is any sense of 8 commercial lawyer 1999 (speech 27th january, 1999). 9 the act of settlement 170 i. 10 see the supreme court act 1981 s.12; the administration of justice act 1973 s.9 ii mondv.hyde [1999] 2 wlr 499. 156 the atkin lecture 1999 complacency about the domestic state of judicial independence completely justified?12 let me start with the casus belli in the hoffmann case. i very much doubt that conflicts of interest in the personal sense are a pervasive problem in this country. and hitherto there has been a hallowed customary way of dealing with them if and when they arise. the case of megacorp international v. worldwide pic. is called on; and the judge says to counsel before it starts, "1 should mention that my aunt agatha has a parcel of 10 shares in the plaintiff company in case either side has any objection to my sitting." counsel have a purely formal whispered interchange with their instructing solicitors and say in chorus, "my lord or it may be my lady my clients are perfectly content for you to hear this matter." the judge groans inwardly at the prospect of an eight week reinsurance trial, spanning as it does, lords, wimbledon, henley and the open golf championship, and the case continues. it is recorded that when lord justice russell made a similar statement in the court of appeal, at the start of what threatened to be a lengthy and tedious hearing, lord denning, the then master of the rolls, leant over and said, "if my brother russell thinks he avoids sitting in this matter on as flimsy a pretext as that, he should think again." but we live in more sensitive and less civilised times. the lord chancellor wrote in stark terms to the senior law lord in the wake of pinochet no.2 urging "every effort to ensure that such state of affairs would not occur again" and requiring appropriate consideration and, if need be, disclosure of any such potential conflicts of interest. 13 and the word has gone out at lower levels too. judge henry pownall, retired from tlle old bailey said in his valedictory a fortnight or so ago that he found it "sad, even offensive, being bombarded by bumph from on high telling me that i must disclose my personal interest i may have or might have, which might be seen to have some effect on my judgment as if i had not complied since pupillage." the sunday times somewhat tendentiously purported to identify judges, including three in the high court, who were said to have flouted the rule that commercial directorships should be surrendered on appointment. 14 in truth, there was far more smoke than fire. but judges have became wary, in circumstances of some perceived potential partiality, shunning even the traditional way of seeking parties' waiver of objection to their sitting, to which i 12 halsbury's laws (4th ed.) vol. 8(2) para.303; e.g. mond v. hyde ibid at 508 13 the letter of 17th december, 1998. more than 100 m.p.s signed an early day motion calling (unsuccessfully) for amendments to the access to justice bill to introduce a compulsory register of judges' interests. 14 28th march, 1999. 157 the denning law journal have already referred, and have recused themselves on a number of grounds; not only of shareholding (however small) in a corporate party, but of an oxford degree where the university was a litigant, membership of the same set of chambers as one of the advocates, and, in one of my own cases, the fact that the judge had the day before received communion from a dean who was a member of the relevant committee of the respondent quango! judge hooton who famously adjourned a criminal trial to ensure his presence at the wimbledon semi-finals (which he was, despite the predictable press hullabaloo contractually entitled to do) chose not to sit in a case involving a hunt saboteur because of his own interest in rough shooting.15 caesar's wife might have regarded some of these reactions as over sensitive. patrick bartle, the stipendiary magistrate who heard the application to extradite general pinochet was revealed in the times, as a member of the conservative party. while this might make him an endangered species, it could hardly by itself disqualify him from hearing the case, and did not, in the event, prevent him from making an extradition order. many judges have been or are members of or voters for political parties. if such membership or sympathy were held to disqualify from sitting in any case with political implications (as distinct from a case actually involv.ing that political party) we should soon have no eligible judges at all! but, more important, the notional cure is becoming more malign than the supposed disease. challenges multiply as the so-called hoffmann card is played. a golden opportunity is given to unscrupulous litigants to affect the make up of their court by asserting a lack of independence, while fearful in fact of independence itself. by coincidence this very week the court of appeal consisting of the lord chief justice, the vice-chancellor, and the master of the rolls tom, dick and harry, if i may be familiar are deciding a series of appeals which may result in guidelines to curb what the lord chancellor has trenchantly termed "a legal industry."16 interestingly few, if any, have sought to question whether it was appropriate for a judge such as lord hoffman to be a member of even so apparently admirable a body as amnesty. the present lord chief justice, in a book edited by the present solicitor-general, wrote only a few years back: "in this country a judge will undoubtedly expect to exercise considerable discretion about the bodies with which he will allow himself to be associated, and in avoiding 15 the times, 7th august, 1999. 16 the court of appeal is set to resolve the issue as to when a judge mayor may not sit in a series of test cases in october: the times, 6th september, 1999. see now locabail (u.k.) ltd v. bayfield properties ltd [2000] 2 w.l.r. 870. 158 the atkin lecture 1999 involved in any campaigning organisation of even a non political kind."i? after all one person's political prisoner is another person's terrorist. judges have also become more public and therefore publicized since the abolition of kilmuir rules, which prohibited them from media contact unless specifically authorised by the lord chancellor. the rationale was that silence greatly enhanced their reputation for wisdom. at a time when we are now becoming as familiar with the media judge as we o~ce were with the media don, the jury is out on whether it has been further enhanced by their speaking out. in my view, judges should be judged on their ex cathedra judgments, not their extra-curricular pronouncements, and should seek to confine themselves to the former. yet looming on the horizon is the insidious phenomenon of televised courts. i say insidious because quite apart from the potential for perverting what purports to be educational into what is envisaged as entertaining, the presence of television can necessarily affect judicial behaviour: no-one behaves in the same way on camera as in camera. the performance of judge ito at the oj. simpson trial, should stand as a warning signal. it is not only advocates, but judges who can be tempted to play to the gallery. immunity from such infection of their independence should, in my view, be preserved. c;omprehensive coverage of cases would stupefy. edited coverage would distort. all television corrupts, selective television corrupts absolutely. there are a number of other ways in which the judiciary become involved in political controversy via extra-curricular activities, though as a result of compulsion, not free will, through their recurrent chairing of enquiries of a political characteri8 which (significantly) become known by the name of the presiding judge: nolan,19 scott,20 saville,21 phillips,22 something (interestingly) only permitted in the united states in situations of national emergency, as exemplified by the warren commission inquiry into the assassination of president john f. kennedy. [the canons of judicial conduct promulgated by american bar association are hostile to stich involvement unless the inquiries are law-connected.] 17 sir thomas bingham, "judicial ethics" in legal ethics and professional responsibility, ross cranston (ed.) (oxford, clarendon press, 1995). 18 g.drewry, "judicial inquiries and public reassurance" [1996] p.l. 368. 19 committee on standards in public life: issues & questions [london, h.m.s.o., 1994]. 20 report of the inquiry into the export of defence equipment and dual-use goods to iraq and related prosecutions [london, h.m.s.o., 1996]. 21 bloody sunday. 22 bovine spongiform encephalopathy [bse.]. 159 the dennlng law journal the scott report was actively undermined by the former government through leak and spin the modern methods of character assassination. the executive by such political attacks, increases the danger of destroying the very reputation for impartiality that judges need to perform their judicial functions: and underscores the undesirability of their initial involvement in such nonjudicial activity. lord saville to take a contemporary example is not only required to investigate the correctness of the conclusions of an earlier inquiry by lord widgery, the lord chief justice, an exercise which by necessary implication involves his predecessor inquisitor in criticism, but has himself been subjected to judicial review in relation to his decision to refuse anonymity to army witnesses.23 it is in one way admirable that lord saville's status as a law lord does not save him from review when sitting in a non-judicial and subordinate capacity as chairman of an inquiry. however} the spectacle of a high court or even appeal judge impugning his judgment is not calculated to promote confidence in the hierarchy of tribunals; and the problem is compounded by the calls for his resignation in the right wing press (broadsheet as well as quasi-tabloid) attendant upon his initial defeat in the divisional court. his participation in his important exercise, in my view, damages (though no fault of his own) his future image as an impartial arbiter above the fray. and now the hoffman defence has intruded even into this sensitive area. the families of the deceased are contemplating a challenge to the court of appeal's decision to restore anonymity on the grounds that lord woolf, who presided, had served for two years in the army on national service although why this should necessarily be thought to predispose him to the military is not by any means obvious. the media, of course, are not slow to leap on bandwagons, even when they do not set them rolling. another by-product of pinochet no.2 was an extraordinary intrusion into and exposure of lord hoffman's private life or a version of it. headlines in the press about "legover lennie" and "lennie the loin" may sufficiently give the bitter flavour of the witch hunt. ministers and m.p. s are prevented by parliamentary rules from attacking the character of judges?4 the press labour under no such restraint, external or internal. the right of free expression the familiar justification provides no excuse. the european convention on human rights itself qualifies such right by considerations of the need to maintain "the authority and impartiality of the judiciary" (article 10(2)); equally the various considerations listed in article 8(2) which would override 23 r. v. lord saville of newdigate ex parte a [1999] t.l.r. 290; r. v. lord saville of newdigate& others exfarte b & others [1999] 4 all e.r. 860. 24 halsbury's laws (4 ed.) voi.8(2) at para.303. 160 the atkin lecture 1999 the right to respect for private life do not appear to be in play in any way in the case of lord hoffinan. there was, in short, no link between press punishment and judicial error: the interest of the public and the public interest were fatally confused. when lord atkin spoke in ambard of the need for justice "to suffer the scrutiny and respectful, even though outspoken comments of ordinary men," i doubt he would have had in mind something akin to hoffmania25 the demystification of the judiciary is, of course, a phenomenon and byproduct of our age. the sugar coating to the burdens of office dissolves: the pomp and circumstances depart. cyril hare in his 1930s classic, tragedy at law, reminds us of the glories that were the old assizes. "a rolls royce of cavernous size purred at the door of the lodgings. the high sheriff, faintly redolent of moth balls but none the less a shining figure in the full-dress uniform of a volunteer regiment long since disbanded, strove to bow respectfully and to avoid tripping over his sword at the same time. his chaplain billowed in unaccustomed black silk. the under sheriff gripped his top hat in one hand and in the other the seven foot ebony wand, sunnounted by a carved death' shead, ... behind, the judge's clerk, the judge's marshal, the judge's butler and the marshal's man formed a sombre but not less satisfying group of acolytes." his lordship's peevish complaint, "no trumpeters," reminds us that these were times not only past, but perdu. i do not suggest that it is in any way necessary to reconstitute the glories of a bygone age. i merely surmise that if judges lodged in a motel, and lunched at mcdonalds, people might be less prepared to accept that the law still had any majesty, or the judges' rulings any authority. if judicial independence depends in part on the illusion that judges were different from the mere mortals whose fate was in their hands, the illusion is all but shattered. the demands of the bureaucrats are rampant as in every walk of modern professional life. as george bernard shaw might have said, a little unfairly it may be, those who can do, those who can't regulate. the civil service interpreting and applying government policy, compel judges to do less than full justice by taking account of considerations which extend beyond doing right in the particular case. only last week, lord justice rose, no silent spokesman for the judicial cause, warned that the recent proposals from the lord chancellor's department for "planned work which begins at 9am and 25 supra n.1 at 335. 161 the denning law journal finishes not before 5pm," and for performance targets to be set had "very serious implications which the authorities have not appreciated in relation to the role of our independent judiciary." i am not a campaigner for judicial indolence although i suspect that those who have not participated in litigation have only a shallow notion of the stresses involved for the professional players judges as well as advocates. but i do recognise that cases cannot be treated like guests on the bed of procrustes with portions lopped off at either end to suit the diktats of some bureaucratic notion of an ideal timetable. no profession is ever enthusiastic about regulation from outside; but the activities of, for example, dons and doctors, who voice equal resentment, do not have a constitutional dimension. the tension is palpable. lord steyn said: "they (judges) do not share the modem adoration of the deity of economy, on the whole they put justice first." a distinctive fonn of pressure upon judicial independence is a move towards positive discrimination. earlier this year the labour research magazine analysed 652 judges including the 85 appointed since the start of 1997 and concluded that the majority were white males and largely the product of independent schools and oxbridge?6 two celebrated campaigning solicitors then wrote an article in the times suggesting that this was unacceptable.27 they argued that in environmental cases in particular "the judges natural instincts ... are to protect property and the interests of the corporate world rather than those of the ordinary citizen" the opposite analysis, i note, to that conventionally contained in the editorial columns of the daily mail. i do not subscribe to the shallow view that evaluation of fact or analysis of law is a robotic exercise; what, for example, a judge regards as a credible explanation given by a witness for some event may be affected by cultural considerations: what is or is not the appropriate legal principle to apply, and of what it consists, may be so likewise. as lord hoffmann himself has said in a recent speech: "[s]ince judges are also people, this means that some def,rree of diversity in their application of values is inevitable.,,28 many legal problems have a range of potential solutions pinochet, i repeat, illustrates the point. but although fact-finding is an important aspect ofthe judicial act, it is not distinctively so. in england, after all, we conventionally assign to non-legally 26 labour research magazine. 27 marilynday & russelllevy, "why judges must declaretheir interests" the times, 31 sl august, 1999, but see the letter from benedictbirnbergon 6th november, ]999. 28 piglowska v. piglowski []999] 3 all e.r. 632 at 644 ]62 the atkin lecture 1999 trained persons, lay-magistrates and jurors, fact fmding functions. the distinctive quality of a judge, is knowledge of the law and its application. such quality is not particular to, nor dependant upon gender or race or social class. but giving all due weight to such factors, it would be intensely damaging to judicial independence if any factor other than perceived judicial merit were to be the criterion for judicial appointment. as the lord chancellor himself has put it: "[o]ur higher courts should not be sculpted to conform to some notion of social, political, sex or any other balance.,,29 [i mention en passant that one of the reasons why members of the bar may be well (if not uniquely) qualified to be appointed to the bench on the basis of their previous professional experience arises from the fact that years of acting, faithful to the cab-rank rule, as the mouthpiece of the client, in the sphere of public law where 1 practise, sometimes for citizen against government, sometimes for government against citizen, has bred an habitual ability to see and appreciate both sides of any argument. the necessarily correlative disadvantage, 1 should in candour add, is an inhibition as to choosing between such arguments and an erosion of any sense of what is right and what is wrong, as distinct from what can or cannot plausibly be argued.] i do not suggest that appropriate efforts should not be made, as they are being made, to encourage applicants for judicial office from all sectors of the legal profession, nor that it was other than entirely sensible for the lord chancellor to appoint sir leonard peach to review the whole system of judicial appointments. but the judge who owed appointment to positive discrimination would be the prisoner of the circumstances of such appointment. the current gender and ethnic imbalance in the judiciary reflects no more than the historic imbalance in the bar, the pool from which candidates from the bench are overwhelmingly selected. as the bar broadens its intake (as it has done), so will a growing number of women and ethnic minority persons ascend to the bench. if the constituency of potential appointees broadens solicitors even academics for appellate positions this tendency will be encouraged. it would be as unwise to accelerate this natural and inevitable process as it would be to interfere with the timetable of childbirth. it is only to spare their blushes that 1 decline to name at least two women who, within fifteen years and two members of ethnic minorities who within three decades, will surely be members of whatever supreme court we then enjoy. i draw an analogy from my experience at oxford. the fact that the number of independent school educated students at oxford is disproportionately high, occurs despite genuine and strenuous efforts to reach out to a wider world of 29 speech to the third world common law judiciary conference, edinburgh, 5th july, 1999. 163 the denning law journal applicants, not because of a desire to keep a closed academic shop. if critics wish us to discriminate positively in favour of the under represented, they should say so, and be prepared to debate the implications of that strategy. they should not claim, fallaciously, that we ourselves are guilty of discrimination: refusal to discriminate positively is not itself discrimination. i tum from the issue of who should be appointed i shall return to the 'how' later to the issue of how they should be paid. a reasonable remuneration for judges is in principle justified as a bulwark against the risk of corruption. mercifully the debate about the.ievel of judicial salaries in this country needs to take no account of that factor. but there are more subtle ways in which pay issues intersect with issues of judicial independence. at present judges are ranked in groups from 1 to 7.2 lord chief justice through to district judge and have their salaries uprated annually by statutory instrument laid before parliament. account is taken of the recommendations to the review body on senior salaries, who provide inter alia, "independent advice to the prime minister and the lord chancellor on the remuneration of the holders of judicial office." i am presently chairman of the judicial subcommittee of that body, and indicate that nothing i say should be regarded as other than provisional indeed i raise questions rather than provide answers and certainly does not represent conclusions of the body itself. but i note performance related pay is now common in the senior civil service: it is due in the foreseeable future for the senior military.3d at sometim.e the issue is bound to be posed. is it feasible to introduce the same system for judicial salaries? in such a system of performance related pay, judges within a particular group could have a variety of salaries, reflecting (no doubt within bands) their relative performances. but there are a number of problems which would necessarily arise in the context of any such scheme. (a) by what criteria is judicial performance to be judged? is a judge's performance to be assessed by his throughput the number of cases decided? or the extent to which his judgments are appealed, unsuccessfully or at all? (b) who would exercise the judgment? (c) (critically) on the basis that such judgment could be translated into pay differentials a technical matter, no doubt as 30 twenty-first report on senior salaries of the review body on senior salaries, cma245 (stationery office, 1999) at para 55. 164 the atkin lecture 1999 capable of achievement in this area as in others what would be the consequences for judicial independence? none of these questions, i suggest, is susceptible of any easy answer. it can be said cogently that the lord chancellor makes evaluations for promotion: that if x is elevated to the court of appeal, it is on the basis that he or she is assessed as a better candidate than y, so that differentiation is not itself impossible. against that the impact on judicial independence of a division of judges, within a single tier, into sheep and goats would have to be most carefully weighed. the public might ask whether the favoured judges had not earned their salary spurs by their amenability to the powers that be. i have spoken so far of fetters imposed upon judges from without: i turn now to judicial behaviour from within. judges cannot be held responsible for many aspects of the enhancement of their purely judicial role the accession to the european community, the enactment into domestic law of the european convention on human rights; the ascription of functions to the privy council in consequence of devolution of policing the type of conflicts, familiar to the judiciary in federal jurisdictions. but judges have also become authors of their own misfortune, unnecessarily attracting accusations of overreaching themselves, not showing that "judicial restraint," publicly proclaimed as a virtue last week by the prime minister's wife. accession to the european community gave judges legitimate power to set aside acts of parliament as contrary to a higher law an experience customary for judges operating in a state with the written constitution, but alien to the domestic judiciary since, in the 1ih century, sir edward coke asserted a similar power by reference to a higher order of natura/law. it was, however, unwise for some judges to assert, even if theoretically, a power to do the same merely because the legislation offended against what they see as fundamental rights. lord woolf] and lord justice laws32 in particular have hinted that parliamentary sovereignty may not be absolute. incorporation of the european convention on human rights will give the judges legitimate power to invalidate executive action as violating its provisions. it is, however, unwise for some judges to proclaim that they should make judgments as if the human rights act were which, by design it is not, already in force.33 31 ["droit public english style" [1995] p.l. 57 32 "law and democracy" [1995] p.l. 72. 33 r. v. d.p.p. ex parte kebilene[1999] 3 w.l.r 175, [c.a.], but see [1999] 3 w.l.r 972, [h.l.]; r. v. governor of brockhill prison ex parte evans (no.2) [2000] 3 w.l.r 843; r . .y. north & east devon health authority ex parte coughlan [2000] 2 w.l.r 622. 165 the denning law journal judicial review provides a salutary discipline against abuse or misuse of executive power. it is, however, unwise for judges to proclaim themselves as consciously filling a political vacuum left by an ineffective opposition.34 it is sensible that judges have sloughed off the barren literalism of traditional methods of statutory construction in favour of a purposive approach which seeks to discern the true intent of the legislation. it is, however, unwise for judges to seek to impose and avowedly so their own values upon a legislative framework so as to reach results which the legislature would never have contemplated, and which, had it contemplated them, it would surely have opposed. the areas of treatment of refugees and of prisoners serving life sentences provide a wealth. of illustrations from recent law reports. ultimately, it must be accepted that judges lack democratic legitimacy. as unelected persons it is not their role, except where compelled to do so, to subvert the sovereignty of parliament. the more involved in political issues they become, the more important it is that they should be then seen to be nonpolitical. this then engages the question of the infringement of separation of powers in our historic constitution, the relevant part of which, the house of lords, is under scrutiny by lord wakeham's royal commission. in my view, irrespective of either the personal qualities of the individuals involved, or the contributions that law lords can make to the legislative (and, in the case of the lord chancellor, also the executive process) in an era when the judicial function has become inextricably involved in politics, it is no longer appropriate that judges should police laws in whose making they have a constitutional role.3536 the overriding disadvantage, in my view, of the possession of membership of parliament, on the one hand, and judicial functions on the other, relates to the appearance (as distinct from actuality) of judicial partiality and consequent confusion in the public mind about the role of judges. judges must not only be independent, but be seen to be independent; they should fulfil and be thought 34 lord woolf neile lecture. 35 "if the judiciary is to act as an effective check on overweening government, it should be untainted by direct involvement with the legislative or the executive." the economist, 16th december, 1995. see also d.pannick q.c., "when legal and judicial functions no longer mix" the times, 7th june, 1999. 36 in the 1870s, the intention of the reformers, lords cairns and selbourne, had been to end the role of the house of lords as a judicial body, as well as the judicial committee of the privy council. in place of these two would be an aggrandised court of appeal, known as the imperial court of appeal, sitting in the new law courts to be built in the strand. it was only by the 1876 appellate jurisdiction act that the house of lords had its appellate power restored. 166 the atkin lecture 1999 to fulfil the aims of the judicial oath "without fear or favour affection or ill will." if judges are members of a political institution, the perception of their necessary independence from the political process is blurred. when the fire brigade case37 which involved the then secretary of state, michael howard's, proposals to make cuts in the criminal injuries compensation scheme came on before the appellate committee it was difficult to find five law lords to sit judicially, since so many of them had already spoken out, in debates and elsewhere against the proposal. (and had they spoken out in favour, the problem would have been equally visible and actually worse, since judges should not appear to be creatures of the other branches of government.) the fact that the law lords split three-two with the minority suggesting that the majority were trespassing into the province of the legislature underlined the danger of the status quo. constitutional conflicts of interest seem to me to provide a far greater cause for concern than personal ones. section 13 of the defamation act 1996 was introduced by way of amendment by lord hoffmann to rectify the position by which an m.p., who chose to sue for libel a newspaper who had impugned his parliamentary conduct, could have his action dismissed because the newspaper could not, on account of article 9 of the bill of rights, defend itself by justifying its allegations, by referring to proceedings in the house, with the result that a fair trial was impossible. but how far section 13 entrenches upon parliamentary privilege is a moot point; and fell for decision earlier this month when the case of neil hamilton v. mohammed al fayed reached the house of lords.38 would it have been possible for lord hoffmann to sit and determine the objective meaning of section 13 when he had, no doubt, a fixed subjective view about its purpose? i tum to the position of the lord chancellor, that earthly three-in-one, with some trepidation since i stand in the very room where he made his notorious, if humorous, comparison of himself to cardinal wolsey. he is not only the senior judge, and the head of the judiciary in england and wales. he is also a politician who serves in the cabinet and has a responsibility for a major executive and spending department. the lord chancellor's involvement in politics has an unavoidable effect on the assessment of the independence of his judgments. lord chancellors may sit less frequently than they once did (in the same way as attorney-generals appear far less in court as advocates for the government than they did). but when they do sit, their role is compromised. it may have been coincidence that in pepper 37 r. v. secretary of state for the home department ex parte fire brigades' union [1995] 2 ac.513. 38 hamilton v. al fayed (no.1) [2000] 2 w.l.r. 609. 167 the denning law journal. v. hart,39 (which established that, within limits, ministerial statements in parliament were legitimate aids to construction of statutes) lord mackay dissented on the pragmatic ground that resort to such grounds would increase the cost of litigation.40 was it the judge who spoke or the politician, cabinet colleague of the chancellor of the exchequer?41 more important would the public be convinced that it was the former, not the latter? lord irvine has sat equally sparingly but one of his two (so far) reported cases concerned the right to use the highway for protest, a sensitive issue with obvious political overtones42 and one whose legally controversial nature was exemplified by the three-two split in the house. the lord chancellor ought sensibly to be ruled out of membership of the appellate committee whenever, for example, a decision of a cabinet colleague is under challenge. but what if it were a decision of a local authority? would it make a difference if the authority were of the same (or different) political stripe to that of the lord chancellor? the moment it is appreciated that the boundary lines between the indefensible and defensible are not fixed, but fluctuating, pragmatism as well as principle suggests that it is better (and simpler) for the lord chancellor not to sit at all. given that even a lord chancellor with the legendary energies of the present incumbent has only been able to sit .twice in two years suggests that the sacrifice involved is more formal than real. lord irvine does not, however, accept that he is hors de combat even for constitutional cases,43 and even with his back .to the wall i do not say wallpaper has made throughout the year a formidable, but i believe ultimately unpersuasive case, for retention of the plurality of his powers. the european commission of human rights has ruled that the position of the bailiff of guernsey, who, in a smaller world by far than that in which the lord chancellor holds triple sway, has legislative, executive and judicial roles, violates, if he sits judicially, article 6 of the european convention on human rights (itself scheduled to the human rights act 1998) which guarantees, inter 39 [1993] a.c. 593. 40 ibid at 615. 41 lord steyn in "the weakest and least dangerous department of government" [] 997] p.l. 84, makes a more general point about the way in which the lord chancellor's compromise by collective responsibility at a time of financial stringency: "the lord chancellor as a cabinet minister represents the voice of reform guided by the treasury perspective. the view of the judge is rather different. they do not wholeheartedly share the modern adoration of the deity of economy. on the whole they put justice first."[at p.91]. see also sir nicholas browne-wilkinson vc., "the independence of the judiciary in the 1980s" [1988] p.i. 44 at p.50. 42 d.p.p.v. jones [1999] 2 w.l.r. 625. 43 supra n.29. 168 the atkin lecture 1999 alia, "an independent and impartial tribunal. ,,44 if the european court of human rights (which has recently heard the case) reaches the same conclusion and the matter is presently under consideration reform may be the only option.45 i confess that i reach these conclusions without relish. i do not believe that nations with a long history of evolving democratic government should lightly discard traditions or images which have served them well. a sense of history, even a soupr;on of ceremony, is no bad thing. if i may adapt what oliver wendell holmes said about the law, the life of constitutions is not logic, but experience. rules often matter less than practice; convention and compromise have valuable roles. but if perceptions of the essence of justice have become more sensitive, then the institutions which provide that justice must adapt to those perceptions.46 . ireturn lastly to the question of judicial appointments. the statutory protection of the higher judiciary against arbitrary dismissal or diminution in benefits because of offence caused to the government of the day contrasts vividly with the fact that though in form the queen's judges in substance they owe their appointment to the government, the lord chancellor, or in the case of the law lords the prime minister acting inevitably on his advice, which allows for political calculation to inform the minds of the appointer, though not the appointed. there are, it must be recognised, nowadays no more appointments as a reward for political service. at the start of the century, membership of the hc;>useof commons was often seen as a springboard to judicial office. by its end even the reversionary right of the attorney-general to the lord chief justiceship, indeed to any judicial post, had long since atrophied. the reasons lie partly in the inability of anyone any longer to enjoy a career in politics simultaneously with a career in law of sufficient distinction to make an appointment to the bench credible: partly because of an increased scrupulousness in the lord chancellor.47 however, the fact that the power is not abused does not mean that it is not capable of abuse: nor can it eradicate the perception for potential abuse. no judges rightly stand higher in the esteem of their colleagues, the profession and the public at large than lord bingham, the lord chief justice, and lord woolf, the master of the rolls; but it is not without interest that each ranks 44 richard james joseph mcconnell v. the united kingdom (application no.28488/95) faras.56-57 5 the court upheld the finding of a violation in its decision of 8th february, 2000. see the times 22nd february, 2000; 8 b.h.r.c. 56; & [2000] plr. 69. see also the scottish case of starrs v. ruxton 2000 s.l.i. 42; [2000] h.r.l.r. 19l. 46 lord steyn, supra n.41 at p.9l. 47 see lord bingham of cornhill, l.c.j., "judicial independence" annual lectures jsb 1996. 169 the denning law journal among the handful of judges who were actually supportive of the mackay and irvine legal reforms; nor that lord justice rose, the judges' candidate for the office of lord chief justice on the untimely death of lord taylor, had been an outspoken critic of the then home secretary's sentencing proposals as well as having suggested that some female appointments to the high court bench owed more to a policy of political correctness than of selection on merit.48 [in december, 1973, when sir john donaldson, a high court judge was sitting as the first president of the industrial relations court, 187 labour m.p.s called for his removal for "political prejudice and partiality." donaldson ended his career as master of the rolls, but not until there had been a change of administration.49 what was unpalatable to the labour m.p.s, was appetising to mrs. thatcher.] lord steyn has suggested that separation of powers can only be ensured if the lord chief justice is head of the judiciary. 50 one might logically add (though lord steyn does not) ifhe or she. appointed the judges. i doubt, however, that such a bird would fly. on the contrary, any move is likely to be in the other direction; lord patten, the fonner education minister, has already suggested that in so far as the judicial role has become objectively politicized, so the elected politicians must have a role, like congress in the united states, in appointment of the judges? the leader of the conservative party, william hague, has developed that thought to its logical conclusion by caliing for a house of commons' veto on senior judicial appointments. 52 dr. liam fox has suggested that newly appointed candidates should appear before a new joint committee of both houses of parliament where his or her views could be sought on a range of political and legal matters.53 any such schemes would be the fatal blow to the independence of the judiciary. that our potential judges should be borked and thomassed will add to the haemorrhage of talent which the high court bench is already sustaining. lord browne-wilkinson, the senior law lord, will apparently say in an interview in the times tomorrow that while willing to sacrifice several million pounds of income in advancing from bar to bench, he would not have accepted office if he had had to undergo such a cross-examination. i cite only the most 48 j.rozenberg, trial of strength: the battle between ministers and judges over who makes the law (london, richard cohen, 1997) 49 he was appointed master of the rolls in 1982, as lord denning's successor. mrs thatcher's government came to power in 1979. so supra n.41 at~. 91 sl the times, 16 march, 1999. s2 the times, 25th february, 1995. s3 dr. l.fox, holding our judges to account (london, politeia, 1999). 170 the atkin lecture 1999 notorious recent examples of congressional inquisition, which were fuelled by a heady cocktail of political partisanship and political correctness, so that one nominee was never appointed and the other is a maimed presence on the bench. indeed, as disquieting as the treatment meted out to such nominees, is the reason why they were nominated, that is to say, to sustain a particular philosophical majority on the supreme court bench. the u.s. supreme court bench contains judges of surpassing ability; but their method of selection is something which should not lightly be transplanted. in my view, it is even less acceptable that nomination should be the plaything of a multitude of elected politicians than that it should be the perquisite of a single unelected one. i would prefer some form of appointments commission, 54 whose membership and whose functions should be legislatively defined so as to ensure that merit alone was the touchstone of elevation to the bench. i appreciate that it will be asked: quis custodiet ipsos custodes! who will appoint the appointers? and that this will only remove at one stage potential political influence in appointment. but there is no perfect solution. what is important is that my proposal increases not narrows the distance between the politicians and the judiciary. accountability the favoured buzz word of those who take the other view is in my view, a euphemism for control. from my perspective the virtues of an appointments commission is not that it exposes judges to, but that it protects them from, the excesses of democratic or popular selection. lord atkin had strong belief in the separation of powers between executive, legislature and judiciary. like lord denning, several of his most memorable judgments upholding the rule of law, were dissents, more valuable for the principle they asserted than the precedent they set.55 liversidge v. anderson, the subject of two distinguished atkin lectures, being the best known example. but in a private letter to sir herbert evatt written in 1940," atkin touched a broader chord: 54 g.drewry, "judicial appointments" [1998] p.l. 1; n.addison, "how canada can help choose judges" the times, 30th march, 1999. 55 see wankie colliery co. v. i.r.c. [1921] 3 k.b. 344 at 365. what he said in liversidge v. anderson, [1942] a.c. 206, the subject matter of two atkin lectures, is a published classic. but equally vibrant is his observation in wankie colliery co. v. i.r. c. where he described the crown's contention that excess profits duty would be levied on owners in respect of profits made by their predecessors as one which "would exceed the wildest dreams of the most imaginative high prerogative lawyers in the very worst time of our history." [at 365]. in ford v. blurton (1922) 38 t.l.r. 801 "many will think that at the present time [1922] the dangers of attack by powerful private organizations or by enchroachments of the executive is not diminishing."[at 805] words not less applicable in 1999. 171 the denning law journal "how little the public realise how dependent they are for their happiness on an impartial administration of justice. i have often thought it is like oxygen in the air: they know and care nothing about it until it is withdrawn.,,56 i have sought to ventilate my own concerns in this historic club to a more sentient and sophisticated sector of the public. if my lecture has been more patchwork quilt than monochrome cloth it is because the concept of judicial independence admits of no solitary or universally accepted definition. but we can legitimately seek to preserve and protect that which we cannot precisely describe. i fervently hope that the enemies of independence that i have identified can be kept at bay; and that all four estates of the realm (for i will accept the media into that category in terms of actual, if not legal power), but also the wider public will recognize the value of judicial independence, and strive to diminish the dangers to it. it is not in the people's interest to have the people's judges. 56 quoted by geoffrey lewis in lord atkin (butterworths, 1983) at p.222. 172 two kinds of justice: human and devine the denning law journal 187 the denning law journal 2008 vol 20 pp 187-195 case commentary is the court of appeal decision in the achilleas good law? transfield shipping inc v mercator shipping inc the achilleas [2007] 2 lloyds rep 555 jae sundaram∗ in september 2007 the court of appeal upheld the decision of the commercial court in transfield shipping inc v mercator shipping inc the achilleas. the case relates to the assessment of damages where late redelivery under a time charterparty causes the vessel to miss the cancellation date for the next fixture. the commercial court had earlier held that where a time charterparty had no unusual provisions or features and the time charterer fails to redeliver the vessel in time for its next fixture, leading to a loss of profit in the next fixture, the shipowner’s claim for damages based on that loss of profits against the redelivering charterer was not too remote, being a not “unlikely result” of late redelivery. this decision had come as a surprise to the shipping industry, especially amongst charterers. the achilleas – facts in january 2003 mercator shipping time chartered their vessel the achilleas to transfield for a period of five to seven months at the rate of us$13,500 per day, with the option to extend for a further period. the charterparty was extended for a further period of the same duration with a revised rate of us$16,450 per day. the latest date for redelivery of the vessel was fixed as of midnight of may 2nd 2004. the charterers gave a notice of redelivery on april 20th. the shipowners fixed the vessel for a four to sixmonth period charter, on april 21st with cargill, in anticipation of such redelivery. the rate was fixed at the then prevailing market rate of us$39,500 per day, with a laycan of april 28th to may 8th, in other words cargill had the right to cancel the agreement if the vessel had not been redelivered by 8th may. ∗ lecturer in law, university of buckingham, llb (india), llm in maritime law (university of southampton), advocate (india), solicitor of england & wales. case commentary 188 by late april it became apparent that the vessel was not going to be redelivered by the agreed date, and the shipowners negotiated an extension with cargill of their cancellation date to 1st may. in return, the shipowners were constrained to reduce the hire charges by us$8,000 per day. in the intervening period there was a substantial fall in the dry market. the charterers redelivered the vessel to cargill on may 11th, with a delay of 9 days. the charter to cargill lasted for 191 days. the shipowners claimed a sum of us$1,364,584, for the loss of profit on the cargill fixture, on the grounds of breach of contract in failing to redeliver by 2nd may, and in the alternative, us$158,301.17 which was the difference in the market rate of hire and the contractual rate of hire for the period of the overrun. the charterers maintained that the shipowners were only entitled to damages relating to the overrun period, which was agreed at around us$158,000. the charterers further contended that they could not be made responsible for the loss suffered by the shipowners in the charterparty with cargill. the dispute was referred to arbitration and the arbitrators awarded the higher amount to the shipowners. both the high court and the court of appeal upheld the award of the arbitrators and the reasons behind the same. the principle submission of the charterers before the court of appeal was that the measure of damages for late redelivery of a time chartered vessel should, for reasons of authority and principle, in the absence of any special knowledge of a subsequent fixture, be limited to loss of current market value during the overrun period, that the arbitrators and the judge at first instance had misapplied the rule laid down in hadley v baxendale1 and that the losses claimed in respect of the cargill fixture were too remote. in support of the above contention the charterers argued that the shipowners' transactions with a third party were res inter alios acta (a thing done between others) about which they did not have any knowledge at the time of contracting in 2003. further, the charterers could not challenge the majority arbitrators’ findings of fact before the court of appeal. the charterers argued that any loss sustained by the shipowners' was simply too remote in the absence of any specific information being brought to the charterers’ attention before contracting and that limiting damages to the difference in rates for the period of the overrun was a matter of principle or policy, as applying any other rule would lead to uncertainty. 1 hadley v baxendale (1854) 9 exch. 341. here, a mill in gloucester had to remain idle due to delays caused by the defendant carriers in delivering a broken crankshaft to the repairers in greenwich. the mill operator claimed for loss of profit as a result of the delays. the claim was rejected, as the defendant carriers were not fully aware of the facts to "show reasonably that the profits of the mill must be stopped by an unreasonable delay in the delivery of the broken shaft by the carriers to the third person" (alderson b at 355). the denning law journal 189 the court of appeal held that both the arbitration panel and the judge at first instance had correctly determined that the shipowners were entitled to recover damages relating to the loss of fixture. the court of appeal observed that the charterers knew (a) it was very likely that owners had entered into a new fixture upon re-delivery of the vessel by them and (b) were fully aware of the volatility of the chartering market and the effect of late re-delivery on hire rates and held that damages were not too remote to be recoverable and was within the hadley v baxendale principle. the court of appeal in reaching its decision reviewed the position of law relating to illegitimate last voyages in a time charter and the development of the implication of a reasonable time within which the vessel must be redelivered, referring to the observations of lord mustill in the gregos.2 rix lj confirmed that irrespective of whether the last voyage was legitimate or illegitimate, the charterers would be in breach if the final redelivery date, inferred from the wording of the charterparty, were to be missed by the charterers. the court of appeal referred to cases relied on by the charterers which included grey & co v christie & co,3 the dione,4 the black falcon,5 the peonia6 and the london explorer.7 the case in the peonia was one where damages were awarded for late redelivery after a legitimate last voyage. rix lj observed, in particular, that none of the earlier cases was the recoverability of damages for the loss of a subsequent fixture actually in issue. this observation very nearly summed up the reasoning for the granting a judgment favouring the shipowners. the court went on to hold that the hadley v baxendale test was to be applied as a composite whole and not as two separate set of tests and that the defaulting party should reasonably have contemplated that the result for which it seeks compensation was not unlikely. commenting on the issue rix lj observed as follows: 2 torvald klaveness as v arni maritime corporation (the gregos) [1995] 1 lloyd's rep 1. lord mustill in his judgment had discussed and highlighted the conflicting interests of the parties to a time charter, especially in relation to illegitimate last voyages while the contract was nearing completion. 3 grey & co v christie & co (1889) 5 tlr 577. 4 alma shipping corp of monrovia v mantovani (the dione) [1975] 1 lloyd’s rep 115 (ca). 5 the shipping corporation of india v nsb niederelbe schiffahrtsgesellschaft gmbh & co (the black falcon) [1991] 1 lloyd’s rep 77. 6 hyundai merchant marine co ltd v gesuri chartering co ltd (the peonia) [1991] 1 lloyd's rep 100 (ca). 7 london & overseas freights ltd v timber shipping co sa (the london explorer) [1971] 1 lloyd's rep 523. case commentary 190 “the refixing of the vessel at the end of the charterers’ charter was not merely ‘not unlikely’ it was in truth highly probable (barring other possibilities).”8 on the issue of remoteness, the court concluded that where a result is foreseeable as a substantial possibility, but happens only in a small minority of cases and would therefore be very unusual and not been in the parties contemplation, would then be considered to be too remote. discussion the judgment while stating the law raises a few questions for the shipping industry and the lawyer alike. in particular, a) if a legitimate last voyage overruns, are the charterers in breach of the contract and liable to pay damages limited only by ‘remoteness’ and b) is it commercially reasonable that owners be able to recover for the loss of a following fixture when time charterers redeliver late? the case of hadley v baxendale is still the leading authority on the issue of damages recoverable by an innocent party following a breach of contact. the damages that a claimant may recover for breach of a contract under the principles set out in the above case may be summarised as a) may fairly and reasonably be considered either arising naturally, ie, according to the usual course of things, from such breach of contract itself, or b) such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. while ordering a retrial of the case in hadley v baxendale, alderson b, delivering the judgment for the court, observed as follows: “now, if the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. but, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract. for, had the special circumstances been 8 transfield shipping inc v mercator shipping inc (the achilleas) [2007] 2 lloyds rep 555 at 574. the denning law journal 191 known, the parties might have specially provided for the breach of contract by special terms as to the damages in that case; and of this advantage it would be very unjust to deprive them.”9 in victoria laundry case10 the court of appeal expressed the opinion that the headnote to hadley v baxendale was definitely misleading in so far as it stated that the defendant carriers’ clerk was told that the mill had stopped and the crank shaft had to be delivered immediately to the repairers. if the court in hadley v baxendale had actually regarded the facts as having been established, then it was “reasonably plain” from alderson b’s opinion in hadley v baxendale that it would have decided that case “the other way round.” the charterers in support of their argument that the losses claimed in respect of the cargill fixture were too remote, sought to place such losses under the second head of the hadley v baxendale test. their principle contention being that the cargill fixture could not have been in the contemplation of the parties at the time of entering into the contract. the house of lords in the heron ii11 set out the guidelines on the application of the rule in hadley v baxendale. lord reid in his judgment referring to the test in hadley v baxendale summarised it as being one where the loss in question is: “of a kind which the defendant, when he made the contract, ought to have realised was not unlikely to result from breach… the words ‘not unlikely’ denoting a degree of probability considerably less than an even chance but nevertheless not very unusual and easily foreseeable.”12 in the achilleas, the charterers knew that it was very likely that the shipowners had entered into a new fixture upon redelivery of the vessel by them and were fully aware of the volatile chartering market and any effects the redelivery may have on hire rates. the above facts would apparanently fall within the principles laid down in the heron ii, as the damages were not too remote to be recoverable and also within the hadley v baxendale principle. 9 above n 1, at 355. 10 victoria laundry (windsor) ltd v newman industries ltd [1949] 2 kb 528, 537 (ca). 11 czarnikow (c) ltd v koufos (the heron ii) [1969] 1 ac 350. it was a case where the charterers successfully claimed damages for late delivery of sugar as a result of breach of obligations on the part of the shipowners. the charterers claimed the difference in the market price of sugar at the time of actual delivery and the higher price the cargo of sugar would have fetched had it arrived in time. 12 above n 10, at 391. case commentary 192 while discussing the issue of late redelivery in a time charter rix lj had pointed out that it was the peonia that first recognised that damages were indeed available for late delivery upon a legitimate last voyage and that a loss of fixture could only rarely occur.13 in the peonia, the terms of the charterparty defined the charter period as “about minimum 10 months maximum 12 months time charter. exact duration in charterers’ option. charterers have further option to complete last voyage”. the shipowners treating the final voyage orders as being illegitimate, requested for a revised order, or in the alternative for a higher rate of hire for the duration of the proposed final voyage which fell outside the charter period.14 the shipowners were constrained to terminate the chartering contract as the charterers refused to go by either of the alternatives and the dispute was referred to arbitration. both the commercial court and the court of appeal disagreed with the arbitrators and held that the expression “further option” only related to a legitimate last voyage and that the owners were right in their actions.15 the court of appeal, before reaching the above conclusion, had the occasion to analyse the position at common law and the existing jurisprudence. earlier, in the london explorer the house of lords was divided on the issue if it would amount to a breach when the vessel sent out on a legitimate last voyage was unexpectedly delayed beyond the charter's final delivery date. in the baleares16 the court of appeal, while assessing a claim brought by charterers referred to the factual findings of the arbitrators17 on the knowledge 13 “as for the consequences of an illegitimate last voyage, the cases demonstrate that they may vary more widely, and also indicate that, for one reason or another, a loss of fixture claim could rarely occur.” above, n 8, at 566. 14 the charter period was to expire on 11 june 1988 but in early may the charterers ordered the vessel on a final voyage, which was not expected to be complete before 19 july. 15 it is to be noted that the peonia did not involve any issue of the loss of any subsequent fixture by the shipowners. 16 geogas sa v trammos gas ltd [1993] 1 lloyd's rep 215 (ca). here the court of appeal upheld the findings of an arbitration tribunal that the shipowners' of a gas carrier were liable for losses suffered by the charterers from forward contracts as a result of late delivery of the vessel which deprived the charterers of buying the requisite quantity of propane needed to service their forward contracts. 17 lord neill delivering judgment observed as follows: “…the arbitrators referred to the fact that a carrier in this specialised trade would know a considerable amount about the pattern of trading of the product which he was carrying. it seems to me that it is implicit in the arbitrators’ conclusion that, though the owners had no knowledge of the existence or terms of specific trades or specific contracts made by the charterers, they must have realised that it was not unlikely that the charterers would have made forward sales at fixed prices. i recognise that in the “heron ii” lord upjohn…emphasised that the knowledge of a carrier of goods may be limited and less than that of a seller of goods. in the present case, however, the arbitrators were the denning law journal 193 that a shipowner may or may not posses about the pattern of trading in specific trades or specific contracts made by the charterers. it is to be noted that in the absence of any error of law, the courts are bound by the factual findings of the arbitrators on remoteness, as illustrated by the baleares. the claims made by the charterers in both the heron ii and the baleares relate to losses arising in forward contracts. the baleares, although relevant, was not relied on by the courts. conclusion where charterers redelivered the vessel late, it had been held that in addition to paying hire charges for the extended period of time, the charterers were also required to pay damages to the shipowner which is the difference between the charter rate and the market rate for such extended period if in the event the marke rate was greater. the achilleas presents a scenario where, in the event of the charterers redelivering the vessel late would be liable to pay much more in damages if the ship owner had entered into a new fixture and if it is reasonably foreseeable that such future employment would be compromised by late re-delivery. the above conclusion was reached by the court of appeal based on the principles laid down in the earlier cases of the heron ii and the peonia. earlier, lord dennning mr, in the dione, relying on an the decision of the house of lords,18 had held that when delays are caused in the legitimate last voyage, due to no fault of the parties, the charterparty would be presumed to be in operation until the end of the final voyage, regardless of the fact it may extend beyond the charter period. he further observed that in such instance the hire payable was only at the charter rate until redelivery, whether the market had gone up or down. the court of appeal in the achilleas did refer to the decision in the dione, in particular to the judgment of lord denning mr, before reaching its conclusion. the court was also quick to point out that it was not until the peonia19 that it became clear that a legitimate last voyage could result in a breach of contract if it overran the charterparty contract.20 in contrast the facts entitled to place reliance on the specialised nature of the trade and to impute to a carrier a greater knowledge of the relevant market than might have been appropriate in different circumstances.” 18 timber shipping co sa v london & overseas freighters ltd [1971] 1 lloyd's rep 523. 19 above n 6. 20 “…it was only finally in 1991 that it became clear that an overrunning legitimate last voyage could result in a breach of contract. up to then, it had been assumed that only an illegitimate last voyage could amount to a breach of contract.” above n 10, at para 30. case commentary 194 of the gregos presented a completely different picture where the parties entered into a without prejudice agreement to pay a certain amount as compensation for any overrunning of the charterparty terms. one should also bear in mind that there was no claim for loss of any subsequent fixture in issue in the peonia. unlike in the case of the dione, the issue before the court of appeal in the achilleas was not one to ascertain the legitimacy or otherwise of a last voyage in a time charter, but if the shipowners would be justified and entitled to demand the losses that they may occasion from a lost fixtures in the event a legitimate last voyage overran. on the facts presented, the court of appeal had handed down a judgment stating that i. in such instances a shipowner could in fact claim damages relating to loss of fixture, as the charterers knew that ii. it was very likely that the shipowners had entered into a new fixture upon redelivery of the vessel, that the charterers iii. had full knowledge of the volatility of the market and its effect on the hire rates and iv. the damages were, accordingly, not too remote to be recoverable and was within the principle laid down in hadley v baxendale. one could argue that the loss would not have been foreseeable in the instant case and the shipowners could not have been successful, but for the shipowners having a safety margin in their contract and the charterers having knowledge of the volatility of the market and the hire rates. the shipowners had, indeed, allowed for a safety margin between the latest possible contractual date for redelivery and the commencement date of the next fixture. the important question that we ask is if the judgment varies the existing law as regards damages for redelivery under a time charterparty? the answer would be in the negative, as it only affirms and adds to the existing authorities on the subject. in all the previous cases it had been held that in the event the vessel was redelivered late, the charterers were liable to pay damages calculated on the difference between the charter rate and the market rate for the extended period, in the event the market rate was higher. further, the question of loss of future employment of the vessel did not arise in the previous cases. it is to be noted that the court of appeal did not think its judgment would lead to any confusion in the highly commercial shipping industry and made the following observation: “business-like communication and cooperation between parties to a charter ought to make a dangerous mishap an unusual event… it requires extremely volatile conditions to create the situation which occurred here. if the shipping industry nevertheless feels that it cannot live with this result, clauses can be created to regulate the situation: the denning law journal 195 just as clauses have come into being to regulate last voyages, such as baltime clause 7 and shelltime 4 clause 19.”21 in the light of the observations of the court of appeal in the achilleas the time charterers will need to be much more careful in how they word their charterparty contracts and also in complying with their contractual duties as regards redelivery of the vessel to avoid paying out any large sums as damages. following the judgment, where a shipowner had entered into a new fixture and if it were reasonably foreseeable that the future employment of the vessel would be put at risk by any late redelivery by the charterer, the damages that the charterer might be liable to pay would be much greater. it is the view of the author that this judgment will provide the template for the application of the principle that a shipowner would be within his rights to claim damages for the loss occasioned on the subsequent fixture as a result of late redelivery in a time charterparty. 21 above n 8, at 578 the reviewability of the parliamentary commissioner sheena n. mcmurtrie* the decision of the queen's bench division [qbd] in r. v. parliamentary commissioner for administration, ex pane dyer' appears to have clarified the position of the parliamentary commissioner [pca] in relation to judicial review. 2 in the dyer case, lord justice simon brown held that "there was nothing about the commissioner's role nor the statutory framework within which he operated so singular as to take (him) wholly outside the purview of judicial review." this decision may raise more problems than it resolves. first, the decision raises questions about the constitutional position of the office and its relationship with parliament itself. the pca is not technically an "ombudsman", although the title is popularly used.3 although the office is independent of the government, the pca is not as completely independent of all other bodies as the title of "ombudsman" would suggest.4 the office was created as an adjunct of parliament. the pea is accountable to parliament through the duty to present an annual report.s in contrast, the commissioners for local administration [clas], for instance, report to other statutory bodies.6 the pca can only be removed by an address to both houses of parliament. 7 he is frequently referred to as an officer of parliament. 8 in addition, complaints only reach him via the m.p. * lecturer in law, the university of buckingham. the author wishes to thank francis coleman for his helpful comments on a draft of this note, and mike radford for his initial input. any errors remain the author's own. 1. [1994] i all e.r. 375; also [1994] i w.l.r.'621. 2, the parliamentary commissioner for administration was established by the parliamentary commissioner act 1967, and is statutorily charged with investigating complaints of "injustice" as a result of "maladministration" by central government departments s.5 of 1967 act. 3. in fact the current commissioner refers to the title "parliamentary commissioner for administration" as his "sunday title", see "the powers, work and jurisdiction of the ombudsman" first report of the select committee on the pca 1993/94, h.c. 33-1 at para.26. 4. an ombudsman would accept complaints directly from the public, see infra. n.8. the parliamentary select comminee on the pca has recommended that the title, •'parliamentary ombudsman", be adopted see first report 1993/94 ibid. para 26. 5. s.io(4) of the 1967 act. 6. the clas are charged with the same task in relation to local government. in england the clas report to the "representative body" appointed by the secretary of state under s.24(1) of the local government act 1974, in scotland the cla reports formally to the commission for local authority accounts in scotland under s.22(1) of the local government (scotland) act 1975; and informally to the convention of scottish local authorities. 7. s.i(3) of the 1967 act. s.i(3a) allows his removal on the grounds of illness/mental incapacity. 8. for instance see standing committee debates, standing committee b, 1st. november, 1966 cols. 84-85, see infra n.12 & text; and first report of the select committee on the pca 1993/94 supra. n.3 para. 29. 117 the denning law journal ftlter, which requires complaints to be referred only by an m.p. and he reports back to the m.p., not to the complainant.9 the enforcement of his recommendations is achieved by means of the parliamentary select committee on the pca. this evidences a strong connexion with parliament. the pca cannot be seen as independent of, and therefore is linked inexorably with, parliament. in fact it would seem to be difficult to separate the pca from parliament without significant statutory changes. this may have significant implications as per the jurisdiction of the courts. secondly, as will be seen, the decision calls into question the future role of the select committee in monitoring the work of the office. the pca and the courts the parliamentary commissioner act 1967, which established the office, was silent of the question of the jurisdiction of the courts in relation to the pca.io some indication of the original intentions can be found in the standing committe debates on the bill. ii the minister in charge of the bill made the following comments in answer to questions about the jurisdiction of the courts: "we have not here, and deliberately have not, excluded the prerogative writs, but the whole shape of the scheme, as has recently been said, is that the pca shall be an officer of parli'ament, and that he shall be answerable to parliament and shall report to parliament: i think that it is generally agreed that a select committee will be set up to whom he will report." (emphasis added) and later, "although we have not excluded the prerogative writs, it is right to point out that the fact that we are giving a complete discretion to the pca to decide whether he takes up a case will make it, i think, in most cases very difficult to mount a successful argument." 12 thus, whilst the possibility of review was not deliberately excluded, the concept was that the pca would be essentially a parliamentary device. 13 the courts have adopted an extremely cautious approach. the first attempt to seek review of a decision of the pca was heard in re fletcher's application. 14 the pca 9. s.6(3) & s.10(4) of 1967 act respectively. 10. s.9(1) of the 1967 act states" [i) f any person without lawful excuse obstructs the commissioner or any officer of the corrunissioner in the performance of his functions under this act, ... the corrunissioner may certify the offence to the court." this is the only reference to the courts' jurisdiction. this section has never been invoked by the pca. 11. supra n.8 and also for 10th. november, 1966. 12. supra n.8 cols. 84-85. 13. see also white paper on the pca 1965 cmnd. 2767 para.4 14. [1970] 2 all e.r. 527. 118 the reviewability of the parliamentary commissioner had refused to investigate the applicant's complaint that the official receiver had neglected his duty whilst acting as a liquidator of a company, on the grounds that it was made outwith the time limits as laid down by the 1967 act. 15 the court of appeal, in refusing leave to apply for mandamus, did not give reasons for the decision. when the case went to the appeal committee, the applicant was refused leave to take his application to the house of lords. lord reid stated that there was no jurisdiction to order the pca to investigate due to the nature of the discretion granted under the relevant section ofthe parliamentary commissioner act 1967.16 the decision of the appeal committee left open the possibility of review on different grounds or by different writs. on the whole, it appeared that they believed that review, if possible, would be a rare occurrence. no further reasons were given. no consideration appears to have been given to whether there was a basic jurisdiction to review the office itself, in light of the pca's constitutional position. after the decision in fletcher, no further applications were made in respect of the pca until 1990. in contrast, the decisions of the clas were declared subject to judicial review. 17 academic opinion was that the pca might also be made subject to review following these decisions. 18 many commentators saw no reason why the pca should not be the subject of review. a belief was expressed that, at least, questions as to his jurisdiction would be reviewed as a result of the pca's powers to report obstructions of his investigations to the courts. 19 under the act, a person who is reported for obstruction may show as a defence that he has a "lawful excuse". it may be that a "lawful excuse" would be that the pca has no power to investigate this complaint. it is submitted that allowing a person to show that they have a "lawful excuse" for obstructing the pca as a defence, is different from seeking direct review of a decision. although a certain inference may be drawn, it does not follow automatically. there was more caution as to the extent to which the courts would interfere with decisions taken under his discretionary powers.20 interestingly enough, sir cecil clothier, when the incumbent of the office of the pca, expressed the view that the pca's discretionary powers would be open to review, as opposed to only matters relating purely to his statutory jurisdiction.21 is. see s.6(3) of 1967 act. 16. ibid; see also c.clothier, "legal problems of an ombudsman" 81 l.s.gaz. 3108 at 3109 where he elaborates on lord reid's judgment. 17. see rea complaint against liverpool city council [1977] 2 all e.r. 650; r. v. local commissioner for administration. ex parte bradford council [1979] q.b. 287; r. v. commissioner for local administration, ex parte eastleigh borough council [1988] 3 all e.r. 151; & r. v. commissioner for local administration, ex parte croydon london borough council [1989] i all e.r. 1033. 18. see alastair r. mowbray, "a right to official advice: the parliamentary commissioner's perspective" [1990] p.l. 68 at 87. 19. supra. n.io; and also paul jackson' 'the wark of the parliamentary commissioner for administration" [1971] p.l. 36 at 46. 20. jackson, ibid; see also david foulkes, "the discretionary provisions of the parliamentary commissioner act 1967" [1967] 34 m.l.r. 377 at 392; & a.w. bradley, "the role of ombudsman in relation to citizens' rights" [1980] cl.l. 304 at 309. 21. c. clothier, supra. n.16. 119 the denning law journal in 1990, another attempt was made to seek review of the pca's decision not to undertake an investigation. in r. v. parliamentary commissioner for administration, ex parte lithgow and another,22 the applicant sought leave for judicial review of the pca's refusal to investigate his complaint about the payment of compensation under the aircraft and shipbuilding industries act 1977. there were a number of grounds of dispute as to whether it was an appropriate complaint for the pca. these included whether it was in fact a contractual or commercial matter and therefore, excluded by statute;23 whether the matter could have been referred to arbitration, thus providing a legal remedy;24 and finally whether or not the complaint was time-barred as it was over ten years 01d.25mr. justice macpherson refused leave on the basis that the application was itself time-barred by order 53 rules (it being over fifteen months since the pca's original decision) and, was not, in his opinion, a case which warranted the exercise of the available discretion. as to the wider question of whether or not the pca was subject to review, he offered the following observations: "i have not been certain that it would be right that the parliamentary commissioner should have questions as to his jurisdiction investigated by this court unless the matter could be said ever to fall within the principles of wednesbury unreasonableness (see associated provincial picture houses v. wednesbury corporation [1948] i k.b. 223, [1947] 2 all e.r. 680). if that happened, and if it could ever be suggested that the ombudsman had been perverse, perhaps different considerations might apply. "26 the judge was not certain that even then the pca would be within the ambit of the court's jurisdiction. he believed that this was a central issue to which the court would have to return in the future. the dyer decision the opportunity arose in the dyer case. the substantive grounds for challenge were not successful. ms. dyer mounted three claims. the first was that the pca had been wrong not to reopen her case on her request, after his report had been submitted. the court held that the pca was unable to reopen a case in those circumstances, unless a further referral was made by an m.p., under s.5(1) of the 1967 act. in rejecting the second point, that the pca was not entitled to limit the scope of his investigations to selected areas of the complaint, the court observed: 22. 26th. january, 1990, qbo, lexls transcript .. 23. s.5(3) & schedule 3 of 1967 act. 24. see s.5(2) of 1967 act. 25. see s.6(3) of 1967 act. 26. supra. n.22. part of this extract was quoted in the pea's annual reponfor 1991 h.c. 347 (1991/92) para.9.2 120 the reviewability of the parliamentary commissioner " [n] 0 investigation should be expected to solve all problems for all time and it cannot in my judgment be said that the approach adopted here by the pca was not one properly open to him. ' '27 finally the court rejected the suggestion that the pca' s practice of sending a draft report to the department concerned but not to the complainant, was a breach of natural justice.28 this practice served three main purposes: to allow inaccuracies to be clarified;29 notice is given of the proposed remedy; and to allow the department to warn the pca of matters which should not be disclosed under s.11(3).30 lord justice simon brown emphasised that it was the department and not the complainant that was subject to possible public criticism, and therefore he could not' 'conclude that fairness hence demanded that she too be shown the draft report. "31 the dyer decision and the constitutional position of the pca as to the question of jurisdiction, the judge dismissed arguments put by counsel that the constitutional position of the pca excluded the jurisdiction of the courts. one of the main considerations must be that the courts are prevented from challenging "proceedings" in parliament by the bill of rights 1688.32 the question must be to what extent do the pca's investigations amount to "proceedings". in addition to the earlier indications of its close associations with parliament,33 it is informative to note that s.1o(5) of the 1967 act grants the pca absolute privilege as regards his reports and correspondence with complainants, similar to the position for other "proceedings". however, this is limited to the law of defamation, and therefore cannot be argued as an immediate bar to judicial review. lord justice simon brown dismissed the constitutional arguments, stating: "many in government are answerable to parliament and yet answerable to the supervisory jurisdiction of this court. "34 it is unfortunate that the judge did not expand upon this statement. as it stands it is open to the interpretation that he misunderstood the position of the pca, equating 27. supra. n.1 at 383. 28. there is statutory requirement to send the report to the department s.io(2) of 1967 act. however, the pea is also given discretion as to how he conducts his inquiries s.7(2) of 1967 act. it is submitted that he could decide to send a draft report to the complainant via the m.p. even in the absence of a statutory requirement. 29. this is to prevent a recalcitrant department claiming before a select committee hearing that the report is inaccurate. 30. s.1i(3) of the 1967 act allows the relevant minister to give notice that information, if disclosed, would be prejudicial to the safety of the state, or otherwise contrary to the public interest. 31. supra. n.1 at 384. 32. article 9 states "that the freedome of speech and debates or proceedings in parlyment ought not to be impeached or questioned in any court or place out of parlyment. " 33. supra. ns.5-13 & text. 34. supra. n.1 at 380. 121 the denning law journal him with the government departments he investigates. yet he is an officer of parliament, and independent of government. presumably, it was meant to imply that even although a government department is answerable to parliament, it does not preclude the court's jurisdiction. this still does not really solve the problem of whether the pca's investigations are' 'proceedings" in parliament. a government department and its activities clearly does not fall under this term. unfortunately argument does not seem to have been taken on the direct point of the application of the bill of rights to the pca. a narrower submission on the court's jurisdiction was also rejected. it had been argued that the courts could only review the pca's discretion in cases of extreme abuse of that power.35 it would appear that the court had accepted no restrictions on its powers of review. yet, lord justice simon brown went on to state that: " [i] t does not follow that this court will readily be persuaded to interfere with the exercise of the pca's discretion ... bearing in mind too, that the exercise of these particular discretions inevitably involves a high degree of subjective judgment, it follows that it will always be difficult to mount an effective challenge on what may be called the conventional ground of wednesbury unreasonableness. "36 this mirrors the position envisaged in the standing committee reportsy it is perhaps possible to see this decision in a wider context as one of a number of recent decisions which have extended the ambit of judicial review to peripheral functions of parliament.38 whether this is a reaction to a perceived impotency of the legislature, in view of its virtual control by the executive, combined with the length of administration by the current government, is yet to be seen. it could be a very interesting development in the relationship between the courts and parliament. further implications of the dyer decision there are many other implications from the decision in dyer. in relation to the office, it opens the potential for review of decisions in a number of areas. there may well be questions as to whether the pca has exceeded his jurisdiction. there 35. nottinghamshire county council v. secretary of state for environment (1986) a.c. 240 & r. v. secretary of state for environment, ex parte hammersmith & fulham london borough council (1991) 1 a.c. 521 were cited in support of this argument. this is a similar argument to those used by earlier academic commentators supra. n.20. 36. supra. n.1 at 381. 37. supra. ns.8 & 11. 38. for example r. v. ecclesiastical committee of both houses of parliament, ex parte the church society, 22nd. october, & 28th. october, 1993, the times, 4th. november, 1993; the independent, 4th. november, 1993. consider also the warning by the speaker on 21st. july, 1993, (hansard 6th. series vo1.229, cols.35 1-352), in light of the possible arguments to be raised in r. v. secretary of state for foreign affairs, ex parte rees-mogg [1994] q.b. 552; [1994] 2 w.l.r. 115; [1994] 1 all e.r. 457]. 122 the reviewability of the parliamentary commissioner may also be fertile ground in the areas where he holds discretionary power. for example, the pca has a statutory discretion as to acceptance of cases where other remedies are available to the complainant. 39 this aspect of his powers was certainly viewed by sir cecil clothier as a possible target for judicial review. 40 further questions might be raised as to the pca's investigative procedure, and whether or not the requirements of natural justice have been met. the pca' s office will be happy enough with the decision in dyer on this point, as it lends legal weight to their established practice in this matter. despite criticism by writers such as burgess, the office has always maintained that it would be a pointless exercise to send a copy of the draft report to the complainant. 41 the main purposes have already been noted.42 it is argued that the complainant's side of the matter will have already b.een supplied and any omissions or inconsistencies investigated. it appears that the office fears a protracted correspondence with the "professional" complainants that they sometimes attract. it is impossible to tell how much dissatisfaction is caused by this procedure, as there has been little work in·the study of the complainant's reaction other than burgess.43 an unarguably negative consequence ofthisdecision may be the increased length of investigations, particularly if the department concerned seeks to challenge the pca' s decision to investigate. the other major question arising in light of the dyer decision is where does this leave the select committee on the pca.44 for many years this committee has served as a form of appeal/review from the pca' s decisions as to whether or not to investigate a complaint. if an m. p. or complainant is unhappy with the outcome, they are usually referred to the select committee. the committee will investigate the complaint and can call the pca to account for his decision. if the courts are now going to share this role, it may be tempting for the dissatisfied complainant to seek the judicial option. it will cause a certain amount of confusion. it could also lead to an indirect clash between the select committee and the courts, if they arrive at opposing views as to the correctness of the pca's conduct of the investigation. the select committee could find its attempts to force a recalcitrant department to provide a remedy might be hindered by the department seeking judicial review of the pca's decision. 39. s.5(2) & (5) of 1967 act. 40. supra. n.16. also woolfl.j. stated that he would not find it unsatisfactory if the cla did not investigate a complaint for which there might be a remedy by way'of judicial review r. v. commissioner for local administration, ex parte croydon london borough council supra. n.17 at 1045 this would apparently effectively fetter the cla's discretion in this matter. 41. paul burgess, "whose side is the ombudsman on?" (1983) 63 new society 55. the article is much refuted see w.k. reid, "what's the good of law in a case o' the kind?" [1993] p.l. 221 at 222. for comment on this aspect of the dyer decision see norman s. marsh, "the extent and depth of judicial review of the decisions of the parliamentary commissioner for administration" [1994] p. l. 347. 42. supra. ns. 28-31 & text. 43. the select committee on the pca has called for a complainant satisfaction survey supra. n.3 at para. 23. it is not clear what changes would be made in light of any such survey as a result of the decision in dyer. the office has had a practice of sending a draft report to a complainant, or a third party who is criticised in the report, to allow an opportunity for comment. 123 the denning law journal further, the question remains that now the pca could be said to be truly in the legal domain, it may not be long before pressure mounts to grant the pea statutory powers of enforcement. the granting of enhanced powers to the clas has been widely regarded as a success.45 although it must be remembered that they did not have the benefit of a device such as the select committee. if the pca were to be granted such powers, one of the primary functions of the select committee would become largely irrelevant. conclusion the dyer decision represents the legal "colonization" of another essentially nonlegal redress mechanism. this is despite the trend towards the concept of alternative dispute resolution, of which the pca was a prime, public law example. as has been seen, the pca was designed to aid m.p.s in their scrutiny of the executive. it was not intended to be a "legal" device, but to remedy maladministration, and improve administration in general, thus preventing recurrent problems. the effect of the dyer decision may well be the importation of more legal concepts into the process, and a move away from the concerns of efficient administration. this may well distract from considering the complaint in terms of good or maladministration. the pea has successfully balanced the needs of the administration, with the needs of the individual, and has remained a unique unit, supervised by the select committee. it would be unfortunate if such a successful alternative redress mechanism as the pca became merely an adjunct to, or an informal tier, of the legal system, rather than an institution equal to the courts in status, but concerned with different issues. 44. for the work of the select conunittee, see roy gregory, "the select conunittee on the pca 1967-1980" [1982] p.l. 49. 45. see local government act 1989 part ii. 124 ‘dog-leg’ claim the denning law journal 119 denning law journal 2009 vol 21 pp 119-130 case commentary “dog-leg” claims kicked into touch: beneficiaries exposed? gregson v hae trustees ltd & ors [2008] ewhc 1006 (ch) rowena meager* the recent decision of the high court in gregson v hae trustees ltd & ors1 (“gregson”) represents a low point for the potential sustainability of what has become known as a dog-leg claim,2 a hitherto rarely utilised cause of action. the essence of the dog-leg claim is this. when a trust suffers loss as a result of a breach by a corporate trustee, and that corporate trustee cannot or will not pursue its own directors to recover the losses to the settlement, a dogleg claim recognises the right of action available to the corporate trustee as being the property of the trust. in the event that the corporate trustee fails to pursue its directors the beneficiaries may do so because the claim belongs to the trust. given that the dog-leg claim has formed the basis of the claim in only a handful of cases there is very limited authority to which reference can be made, some of which emanates from other jurisdictions such as australia and jersey. this commentary will examine more closely the nature of the dog-leg claim, the circumstances in which such a claim might potentially arise and the impact of the limited judicial decisions in this context. it then goes on to consider whether the court’s lack of enthusiasm for such a cause of action has secured protection for the directors of corporate trustees, enabling them to hide behind the corporate veil, in a context where the justification for such protection may be open to question. gregson – the facts gregson concerned a trust of shares in a family company, the well known furniture chain, courts plc, a business which was acquired and built up by members of the cohen family. hae trustees ltd (“hae”) is a corporate * llb (hons), bcl (oxon), barrister (harcourt chambers temple, london & oxford), lecturer in law, university of buckingham. 1 [2008] ewhc 1006 (ch). 2 ibid, at para [9]. case commentary 120 trustee which was incorporated in 19603 for the purpose of acting as trustee4 to a number of family settlements, including the one the subject of this claim. the whole of the property of the trust with which this claim was concerned consisted of courts shares, transferred by the settlor, henry cohen, to hae shortly after the settlement was created. hae retained the shares from the time they were settled. the claimant is a beneficiary under the discretionary settlement by virtue of an appointment made in 1991, her entitlement being just over 25% of its value. she is also a member of the cohen family. on 30 november 2004 courts went into administration, the company having become insolvent with a deficiency of some £70 million. the property of the trust became, to all intents and purposes, worthless. the claim and the defendants’ application the claim was brought against hae, the first defendant, and its directors, the second to fifth defendants.5 hae had no assets of its own so whilst it was a party to the action in the high court it played no part in the proceedings. the primary targets of the action were the directors of hae.6 the claim was brought on the basis that the directors were liable to hae for breach of their duty of care as directors and the claims which hae were entitled to bring against its directors arising out of these breaches were the property of the settlement. it was argued that as hae would not and could not be expected to sue its directors for their breaches the claims could be made by the claimant as a beneficiary of the settlement. the basis upon which the claimant alleged that the directors had breached their duty of care was their failure to review the investments of the settlement and consider diversification pursuant to their statutory obligation under section 4(2) of the trustee act 2000 (“the 2000 act”). following the issue of the claim the second, third and fifth defendants made an application for summary judgment or for the claim to be struck out. the judge had, therefore, to determine whether the claimant’s claim, firstly, that the directors had failed to comply with their statutory obligation under section 4(2) of the 2000 act, and, secondly, that such a claim was the property of the settlement, had any real prospect of success. 3 it was incorporated as a company limited by guarantee and had no share capital. the affairs of the company, as prescribed by its memorandum of association, were to be conducted without the acquisition of any profit or gain. 4 it also acted as executor or administrator of estates. 5 the fourth defendant was the personal representative of a deceased director. 6 the claim against the directors has been described as a “shameless piece of defendant shopping”, richard nolan “shopping for defendants: worthless trust companies and their directors” [2008] 67(3) clj 472 at 472. the denning law journal 121 this commentary is largely concerned with the second of these questions, namely whether any claim against the directors can be properly described as the property of the settlement. the court did find that the statutory duties applied to the courts shares and, thus, that the claim could not have been be struck out on that ground. however, unless the dog-leg claim was determined to be arguable, thus enabling the claim to go to trial, this was of little comfort to the claimant. the dog-leg claim the potential for a dog-leg claim arises, as illustrated by the facts of gregson, in the context of corporate trusteeship. a company formed for the purposes of acting as a corporate trustee must have directors, as indeed all companies must.7 a corporate trustee is, after all, a company and is subject to the same statutory regime applicable to any company. the directors of any company owe a number of duties to the company including a duty of care.8 however, whilst the directors of a company owe duties to the company itself, can it be said that they owe a duty to anyone else, most particularly the beneficiaries of the settlement(s) on whose behalf the company is acting as a corporate trustee? according to the court of appeal in bath v standard land co ltd9 the directors of a corporate trustee owe no fiduciary duty to a beneficiary of the trust: “it is of course true that a company acts through its directors. but that does not involve the proposition that if a breach of trust is committed by a company, acting through its board, a beneficiary can maintain any action against the directors in respect of such breach of trust”.10 it was argued in gregson not that the directors owed a duty directly to the beneficiaries of the settlements but that the duties owed by the directors to the company itself were the property of the settlements for which the company acted as trustee. this is the distinction between a claim against the directors based upon a breach of duty owed directly to the beneficiaries, which is clearly unsustainable in light of the decision in bath v standard land co ltd, and a claim founded upon the settlement’s ownership of the claim which the corporate trustee is entitled to bring against its own directors who have breached their duty to the company, but which may, in the alternative, be 7 companies act 2006, s 154(1). 8 companies act 2006, s 174. 9 [1911] 1 ch 618 (ca). 10 ibid, per cozens-hardy mr at 625-626. case commentary 122 brought by a beneficiary of the settlement. thus, the dog-leg claim was said to facilitate the indirect enforcement of the duty owed to the company.11 discussion of the courts’ approach to the dogleg claim the court in gregson conducted a thorough review of the authorities, including those cases in which a dog-leg claim had been expressly pleaded and that authority which, despite such a claim having not been pleaded, was said to offer support for the proposition that a right of action against the directors of a corporate trustee was the property of the settlement. (a) authorities where a dog-leg claim was expressly pleaded a relatively recent australian decision of the victorian court of appeal, young v murphy,12 was concerned with a dog-leg claim. a trustee company, btpc, had been replaced as trustee of a number of investment trusts. btpc went into liquidation. the new trustees sought to sue not only btpc but, inter alia, its directors. during a close examination of the dog-leg claim which was expressly pleaded in that case, phillips j, rejecting the dog-leg claim, stated: “the business activity of bptc as trustee of these trusts was itself the framework within which the directors came to perform the duties which they owed to the company by virtue of their office as director; but the duties which were owed are none the less general duties and are not owed to the company in some specific role or character, or at least they are not owed to the company in some specific role or character when the duties are alleged to have arisen only in virtue of the office which is held… it follows that if there be a breach by the directors of the duties which they did owe to the company, being the former trustee bptc, and if the company was thereby damnified, bptc might have a right of action against the directors for breach of their duties. in so far as those duties were founded in the common law, there might be a right of damages and, if they be fiduciary duties, there might be a right to equitable compensation. either way, it is the company in which the right of action is vested. the plaintiffs [the new trustees] now claim to have succeeded to that right of action by virtue of their appointment as 11 [2008] ewhc 1006 (ch), at para [45]. 12 [1996] 1 vr 279. the denning law journal 123 new trustees, but by what right can that be so? the right of action held by the former trustee cannot be shown to have been trust property; there is no basis upon which to conclude it was…the directors cannot be said on the pleading in this case to have owed their duties to the company only in relation to some particular trust or trusts; nor were those duties imposed upon them in relation to some particular item or items of trust property as such. rather the existence of both the trusts and the trust property was but the context in which the duties fell to be discharged by those who owed duties to the company generally as its officers. there is no basis then, for supposing that the right of action was trust property in the hands of bptc or for supposing that the right of action passed to the new trustees, upon their appointment as such. on that basis, it follows that any right of action against the former directors for breaches of duties said to have been owed to bptc remains with that company. the company is now in liquidation and so it is a matter for the liquidator whether to pursue the directors for those alleged breaches of duty. whether he could be persuaded to bring such proceedings (perhaps, if indemnified as to costs) is a matter which does not fall for decision. but the benefit of such proceedings will belong to the creditors generally, in the liquidation, consistently with my view that the directors owe their duty to bptc and not to bptc in a particular capacity.”13 the decision in young v murphy,14 whilst not binding, is entirely consistent with the english company law principle that a company director owes a duty to the company,15 no-one else.16 in light of this recognition is there any authority which does offer support for the concept of the dog-leg claim? it is sparse but does, however, exist.17 limited support for the possibility of such a claim can be derived from the decision of lindsay j in hr v japt.18 this was an application by the third of six defendants for the claimant’s claim to be struck out on the ground that the claim disclosed no reasonable cause of action against him. the claimants in the action were the present trustees and a beneficiary of a company pension 13 ibid, at 302. 14 [1996] 1 vr 279. 15 this is repeated in companies act 2006, s 170(1), which provides that the statutory duties owed by a director are owed to the company. 16 eg shareholders or employees. 17 the extent to which such a claim is limited is acknowledged in lewin on trusts (london: sweet & maxwell, 18th edn, 2007) paras 40-51. 18 [1997] oplr 123. case commentary 124 scheme. the third defendant was a director of the former corporate trustee. the claim was concerned with losses to the scheme which ran to several million pounds as a result, it was alleged, of various acts of mismanagement by the former corporate trustee. one of the grounds of claim was that the third defendant owed a duty to the former trustee,19 that he breached that duty, that the former corporate trustee thereby suffered loss (in that it was obliged to make good a deficit to the scheme) and that the chose in action against the third defendant thus acquired by the former corporate trustee was trust property which, by succession, passed to and could be sued upon by the present trustees. after reviewing the authorities, including young v murphy, lindsay j concluded that he was not prepared to describe the claimant’s dogleg claim as unarguable. this stance is clearly contrary to that which was adopted in young v murphy in which any suggestion that a right of action against the directors of a corporate trustee could belong to anyone other than that particular corporate trustee was roundly rejected. however, the apparently less strict approach adopted in hr v japt20 was, according to lindsay j, justified on the particular facts of the case. in contrast with the factual circumstances in young v murphy this case concerned the liability of, inter alia, a director of a one-trust corporate trustee thereby, in lindsay j’s view, making the case for the claimant stronger. this is because a one-trust corporate trustee has only one trust to administer, hence it has no responsibility for anything but the administration of that one trust. in this context there is arguably a much stronger connection between the corporate trustee, its directors and the trust. the decision in hr v japt was, admittedly, simply a refusal to strike out the claimant’s claim; not a decision on the merits. however, the fact that the dog-leg claim was considered arguable, in the context in which it arose in hr v japt, is sufficient to indicate that there may be circumstances in which such a claim might be sustainable. the recent case of alhamrani v alhamrani,21 a decision of the royal court of jersey, is also instructive. the dog-leg point arose in the context of an application for leave to amend pleadings in order to introduce the claim. in refusing the application commissioner page said:22 “33. mr taylor conceded, as he had to, that if the pleaded dog leg claim is valid in the present case it will apply equally to any director of any corporate trustee company whose negligence results in loss to the trust fund and consequential liability on the part of the company, 19 it was claimed that the duty was owed both in tort and as a fiduciary duty. 20 [1997] oplr 123. 21 [2007] jrc 026. 22 at paras [33] and [34] of his judgment. the denning law journal 125 irrespective of the state of that company’s business, the possibility of such liability being satisfied from its own resources or those of its insurers, or any other circumstance. 34. but the notion that the right to performance of the standard statutory duties owed by a director to his company (as it is put in the first party’s pleading) or the duty of a director not to cause loss to his company or the company’s cause of action arising from breach of any such duty (as it is put elsewhere) is, in the ordinary way to be regarded in law as the “asset” or “property” of the trust of which the company is trustee, seems to have a degree of artificiality and awkwardness about it that is not easy to accommodate – at least in circumstances which are not such that the imperatives of justice leave no other alternative….”23 following consideration of this decision in gregson it was noted that jersey previously had legislation24 which made the directors of a corporate trustee guarantors of the damages awarded by the court against the corporate trustee for breach of trust, thereby making provision for the payment of damages in the event that the corporate trustee was unable to meet such claims. however, that provision was repealed in 2006 and has not been replaced, thereby providing far more extensive protection for the directors of corporate trustees. the force of these authorities is self evident, there being only negligible support for the dog-leg claim from hr v japt. however, the court in gregson was taken to further authority which counsel for the claimant argued was helpful. (b) potentially relevant authority where a dog-leg claim was not expressly pleaded in gregson as well as having been referred to cases in which a dog-leg claim had been expressly pleaded the court was also directed to the dictum of lord nicholls in royal brunei airlines sdn bhd v philip tan kok ming25 (“royal brunei”) where he said: “it is against this background that the question of negligence is to be addressed. this question, it should be remembered, is directed at whether an honest third party who receives no trust property should be 23 reproduced in gregson at para [40]. 24 trusts (jersey) law 1984, art 56. 25 [1995] 2 ac 378. case commentary 126 liable if he procures or assists in a breach of trust of which he would have become aware had he exercised due diligence. should he be liable to the beneficiaries for the loss they suffer from the breach of trust? the majority of persons falling into this category will be the hosts of people who act for trustees in various ways: as advisers, consultants, bankers and agents of many kinds. this category also includes officers and employees of companies in respect of the application of company funds. all these people are accountable to the trustees for their conduct. for the most part they will owe the trustees a duty to exercise reasonable skill and care. when that is so, the rights flowing from that duty form part of the trust property. as such they can be enforced by the beneficiaries in a suitable case if the trustees are unable or unwilling to do so. that being so, it is difficult to identify a compelling reason why, in addition to the duty of skill and care vis-àvis the trustees which the third parties have accepted, or which the law has imposed upon them, third parties should also owe a duty of care to the beneficiaries. they have undertaken work for the trustees. they must carry out that work properly. if they fail to do so they will be liable to make good the loss suffered by the trustees in consequence, this will include, where appropriate, the loss suffered by the trustees, being exposed to claims for breach of trust.”26 counsel for the claimant in gregson relied upon this passage, in particular the reference to the category of persons which was described as including officers and employees of the company, as authority that claims against the officers and employees of a trust company, which would include directors, flowing from a breach of their duty were trust property, enforceable, if the trustees were unable or unwilling to act, at the suit of the beneficiaries.27 it was argued that this passage supported the claimant’s contention that any action which hae may be entitled to bring against its directors for their alleged breaches of duty was the property of the trust, thereby enabling the beneficiaries to bring that action in the event that the trustee failed to do so. robert miles qc, sitting as a deputy judge of the high court, rejected this proposition. he did so on the basis that lord nicholls’ dictum was not restricted to the context of corporate trustees but was concerned with companies generally. he also accepted the validity of the submission of counsel for the second and third defendants that lord nicholls was speaking of the application of company funds, in other words the corporate trustee’s 26 ibid, at 391. 27 gregson, at para [32]. the denning law journal 127 own funds, rather than the application of the funds of any settlement being managed by the corporate trustee. however, he did regard the sentence which referred to the inclusion of officers and employees of companies as coming within the category of persons who would be accountable to the trustees, any corresponding claim being the property of the trust, as being not easy to follow, it having the appearance of a parenthetical afterthought. he then speculated that it was more likely lord nicholls was referring to a case where company funds are entrusted by the directors to other officers or employees who then misapply it, the company thereby being in a position of beneficiary and entitled to bring proceedings to recover their losses. with respect, it is not at all clear that this is what lord nicholls had in mind when making the observations which he did, and to draw this conclusion requires something more to be read into the passage than is evident on a plain reading of it. however, counsel for the claimant did, himself, describe the reference to officers and employees in the context used as mysterious, which, indeed, it is. on the application of royal brunei to the facts in gregson it was regarded as most significant that the decision concerned a director’s liability as an accessory to the trustee’s breach which could only be established if the director was shown to be dishonest. in gregson it was noted that if lord nicholls had thought that the duties of the defendant, as a director of the trustee, were held on trust for the claimant there would, in royal brunei, have been no need to establish dishonesty in order to establish accessory liability. ergo, in gregson, in order for the directors to be directly liable to the beneficiaries of the trust, on the application of this line of reasoning it would be necessary to establish that the directors had been dishonest; there was no such allegation. the decision in gregson in light of the foregoing, rather unsurprisingly the high court rejected the possibility of the claimant having any real prospect of success in her dog-leg claim against the directors of hae. therefore the claims against the defendant directors were struck out. in view of this latest blow to the sustainability of a dog-leg claim it would appear that unless such a claim were brought against the directors of a one-trust corporate trustee, thereby bringing itself squarely within the hr v japt factual matrix, its prospects of success are moreorless non-existent. case commentary 128 discussion the decision in gregson, rejecting the dog-leg claim, is clearly consistent with well established company law principles. these principles limit the potential liability of company directors in circumstances where those directors have breached their duty to the company, thereby causing loss to a third party, and for which loss an action may be brought against the company. however, this decision provides little comfort to beneficiaries under a settlement that sustains losses through the mismanagement of the property of the settlement by the directors of a corporate trustee. the implications are particularly harsh where the corporate trustee has no assets of its own. in such circumstances, where a loss is sustained by the settlement (invariably as a result of some failure or breach on the part of its directors), the beneficiaries will have little chance of recovering those losses if the corporate trustee is the only prospective defendant. as a consequence of this decision it seems the only legitimate way in which the claimant could pursue her claim would be highly convoluted. she would have to sue the corporate trustee and obtain judgment against it. hae’s inability to meet any prospective judgment, given that it has no assets of its own, would enable the claimant to obtain a winding up order. the claimant could then get the liquidator to pursue the directors on behalf of the company. this would almost certainly require the claimant to indemnify the liquidator against the expense of such litigation given that there would be no funds in the liquidation from which to discharge such costs. furthermore, any judgment would represent a credit to the general coffers of the corporate trustee and would have to be shared with any other creditors. despite the court’s response to the dog-leg claim according with well established principles of company law it exposes a significant flaw in the protection afforded to beneficiaries under settlements which are managed by corporate trustees. corporate trustees have no obligation to hold insurance; in fact, unless insurance is for the benefit of the settlement as opposed to just being for the benefit of the trustees in order to indemnify them against claims for breach of trust, the payment of insurance premiums out of the settlement is not permitted.28 furthermore, where a corporate trustee has no assets or income of its own it inevitably has no means by which to fund the payment of insurance premiums. the problem of uninsured corporate trustees is less likely to be an issue in the context of professional trustee companies who operate commercially and will most likely have insurance. however, in the context of corporate trustees which are set up to manage settlements on a non-profit making basis and 28 see kemble v hicks [[1999] plr 287 and nbpf pension trustees limited v warnock-smith [2008] ewhc 455 (ch). the denning law journal 129 which have no assets out of which to meet the costs of insuring against claims for breach of trust, the impact upon the beneficiaries can be, as we have seen in gregson, of seismic proportions. conclusion the potential injustice to the beneficiary in this context is obvious, the context being one in which a corporate trustee is impecunious and unable to satisfy any prospective judgment against it. a corporate trustee is not obliged to insure itself against claims arising out of its own breach or the breach of its directors. nor is the corporate trustee obliged to bring an action against its own errant directors whose breaches have caused loss to the settlement. the only way of compelling an action against the directors is, in appropriate circumstances, to obtain a winding up order against the corporate trustee and get the liquidator to sue the directors, if possible. this situation illustrates what may be perceived by some as a lack of adequate regulation regarding the extent to which beneficiaries will be protected against losses caused by corporate trustees. admittedly it is not inconsistent with many other jurisdictions which do not impose personal liability upon the directors for breaches committed by a corporate trustee.29 in fact de-regulation such as that which has recently occurred in jersey suggests an inclination towards further protecting the directors of corporate trustees in circumstances where it was previously considered appropriate to impose liability.30 however, in contrast, australia has recently introduced legislation designed to make directors of corporate trustees personally liable in prescribed circumstances,31 demonstrating some recognition that there may be circumstances in which the director of a corporate trustee ought to be exposed to the possibility of personal liability. whilst the stance towards the concept of the dog-leg claim adopted by the courts may be consistent with established company law principles, it has worrying implications regarding the exposure to risk of beneficiaries in this context and is arguably inconsistent with the protectionist approach normally adopted by the courts regarding losses suffered by beneficiaries through the fault of others. whether or not this tension is sufficient to justify the court adopting a novel approach to the question of indirect liability of the directors of corporate trustees through the dog-leg claim appears to have been answered 29 none of the offshore jurisdictions impose liability in this context. 30 guernsey, like jersey, has also had and repealed legislation which sought to impose personal liability on the directors of corporate trustees in the event of a breach of trust; trusts (guernsey) law 2007. 31 corporations act 2001, s 197. for a slightly fuller discussion of this provisions see halsbury’s laws of australia [430-5300]. case commentary 130 in the negative. the introduction of legislative protection, either imposing personal liability upon the directors or requiring those acting as corporate trustees to insure against liability for breach of trust, would appear to be the only tenable solution for better protecting the beneficiaries of settlements which are mismanaged by corporate trustees and who do not have sufficient assets to discharge liabilities which arise out of a breach of trust. case commentary rowena meager* gregson – the facts the claim and the defendants’ application the dog-leg claim discussion of the courts’ approach to the dog-leg claim (a) authorities where a dog-leg claim was expressly pleaded (b) potentially relevant authority where a dog-leg claim was not expressly pleaded the decision in gregson discussion conclusion the reviewability of the parliamentary commissioner sheena n. mcmurtrie* the decision of the queen's bench division [qbd] in r. v. parliamentary commissioner for administration, ex pane dyer' appears to have clarified the position of the parliamentary commissioner [pca] in relation to judicial review. 2 in the dyer case, lord justice simon brown held that "there was nothing about the commissioner's role nor the statutory framework within which he operated so singular as to take (him) wholly outside the purview of judicial review." this decision may raise more problems than it resolves. first, the decision raises questions about the constitutional position of the office and its relationship with parliament itself. the pca is not technically an "ombudsman", although the title is popularly used.3 although the office is independent of the government, the pca is not as completely independent of all other bodies as the title of "ombudsman" would suggest.4 the office was created as an adjunct of parliament. the pea is accountable to parliament through the duty to present an annual report.s in contrast, the commissioners for local administration [clas], for instance, report to other statutory bodies.6 the pca can only be removed by an address to both houses of parliament. 7 he is frequently referred to as an officer of parliament. 8 in addition, complaints only reach him via the m.p. * lecturer in law, the university of buckingham. the author wishes to thank francis coleman for his helpful comments on a draft of this note, and mike radford for his initial input. any errors remain the author's own. 1. [1994] i all e.r. 375; also [1994] i w.l.r.'621. 2, the parliamentary commissioner for administration was established by the parliamentary commissioner act 1967, and is statutorily charged with investigating complaints of "injustice" as a result of "maladministration" by central government departments s.5 of 1967 act. 3. in fact the current commissioner refers to the title "parliamentary commissioner for administration" as his "sunday title", see "the powers, work and jurisdiction of the ombudsman" first report of the select committee on the pca 1993/94, h.c. 33-1 at para.26. 4. an ombudsman would accept complaints directly from the public, see infra. n.8. the parliamentary select comminee on the pca has recommended that the title, •'parliamentary ombudsman", be adopted see first report 1993/94 ibid. para 26. 5. s.io(4) of the 1967 act. 6. the clas are charged with the same task in relation to local government. in england the clas report to the "representative body" appointed by the secretary of state under s.24(1) of the local government act 1974, in scotland the cla reports formally to the commission for local authority accounts in scotland under s.22(1) of the local government (scotland) act 1975; and informally to the convention of scottish local authorities. 7. s.i(3) of the 1967 act. s.i(3a) allows his removal on the grounds of illness/mental incapacity. 8. for instance see standing committee debates, standing committee b, 1st. november, 1966 cols. 84-85, see infra n.12 & text; and first report of the select committee on the pca 1993/94 supra. n.3 para. 29. 117 the denning law journal ftlter, which requires complaints to be referred only by an m.p. and he reports back to the m.p., not to the complainant.9 the enforcement of his recommendations is achieved by means of the parliamentary select committee on the pca. this evidences a strong connexion with parliament. the pca cannot be seen as independent of, and therefore is linked inexorably with, parliament. in fact it would seem to be difficult to separate the pca from parliament without significant statutory changes. this may have significant implications as per the jurisdiction of the courts. secondly, as will be seen, the decision calls into question the future role of the select committee in monitoring the work of the office. the pca and the courts the parliamentary commissioner act 1967, which established the office, was silent of the question of the jurisdiction of the courts in relation to the pca.io some indication of the original intentions can be found in the standing committe debates on the bill. ii the minister in charge of the bill made the following comments in answer to questions about the jurisdiction of the courts: "we have not here, and deliberately have not, excluded the prerogative writs, but the whole shape of the scheme, as has recently been said, is that the pca shall be an officer of parli'ament, and that he shall be answerable to parliament and shall report to parliament: i think that it is generally agreed that a select committee will be set up to whom he will report." (emphasis added) and later, "although we have not excluded the prerogative writs, it is right to point out that the fact that we are giving a complete discretion to the pca to decide whether he takes up a case will make it, i think, in most cases very difficult to mount a successful argument." 12 thus, whilst the possibility of review was not deliberately excluded, the concept was that the pca would be essentially a parliamentary device. 13 the courts have adopted an extremely cautious approach. the first attempt to seek review of a decision of the pca was heard in re fletcher's application. 14 the pca 9. s.6(3) & s.10(4) of 1967 act respectively. 10. s.9(1) of the 1967 act states" [i) f any person without lawful excuse obstructs the commissioner or any officer of the corrunissioner in the performance of his functions under this act, ... the corrunissioner may certify the offence to the court." this is the only reference to the courts' jurisdiction. this section has never been invoked by the pca. 11. supra n.8 and also for 10th. november, 1966. 12. supra n.8 cols. 84-85. 13. see also white paper on the pca 1965 cmnd. 2767 para.4 14. [1970] 2 all e.r. 527. 118 the reviewability of the parliamentary commissioner had refused to investigate the applicant's complaint that the official receiver had neglected his duty whilst acting as a liquidator of a company, on the grounds that it was made outwith the time limits as laid down by the 1967 act. 15 the court of appeal, in refusing leave to apply for mandamus, did not give reasons for the decision. when the case went to the appeal committee, the applicant was refused leave to take his application to the house of lords. lord reid stated that there was no jurisdiction to order the pca to investigate due to the nature of the discretion granted under the relevant section ofthe parliamentary commissioner act 1967.16 the decision of the appeal committee left open the possibility of review on different grounds or by different writs. on the whole, it appeared that they believed that review, if possible, would be a rare occurrence. no further reasons were given. no consideration appears to have been given to whether there was a basic jurisdiction to review the office itself, in light of the pca's constitutional position. after the decision in fletcher, no further applications were made in respect of the pca until 1990. in contrast, the decisions of the clas were declared subject to judicial review. 17 academic opinion was that the pca might also be made subject to review following these decisions. 18 many commentators saw no reason why the pca should not be the subject of review. a belief was expressed that, at least, questions as to his jurisdiction would be reviewed as a result of the pca's powers to report obstructions of his investigations to the courts. 19 under the act, a person who is reported for obstruction may show as a defence that he has a "lawful excuse". it may be that a "lawful excuse" would be that the pca has no power to investigate this complaint. it is submitted that allowing a person to show that they have a "lawful excuse" for obstructing the pca as a defence, is different from seeking direct review of a decision. although a certain inference may be drawn, it does not follow automatically. there was more caution as to the extent to which the courts would interfere with decisions taken under his discretionary powers.20 interestingly enough, sir cecil clothier, when the incumbent of the office of the pca, expressed the view that the pca's discretionary powers would be open to review, as opposed to only matters relating purely to his statutory jurisdiction.21 is. see s.6(3) of 1967 act. 16. ibid; see also c.clothier, "legal problems of an ombudsman" 81 l.s.gaz. 3108 at 3109 where he elaborates on lord reid's judgment. 17. see rea complaint against liverpool city council [1977] 2 all e.r. 650; r. v. local commissioner for administration. ex parte bradford council [1979] q.b. 287; r. v. commissioner for local administration, ex parte eastleigh borough council [1988] 3 all e.r. 151; & r. v. commissioner for local administration, ex parte croydon london borough council [1989] i all e.r. 1033. 18. see alastair r. mowbray, "a right to official advice: the parliamentary commissioner's perspective" [1990] p.l. 68 at 87. 19. supra. n.io; and also paul jackson' 'the wark of the parliamentary commissioner for administration" [1971] p.l. 36 at 46. 20. jackson, ibid; see also david foulkes, "the discretionary provisions of the parliamentary commissioner act 1967" [1967] 34 m.l.r. 377 at 392; & a.w. bradley, "the role of ombudsman in relation to citizens' rights" [1980] cl.l. 304 at 309. 21. c. clothier, supra. n.16. 119 the denning law journal in 1990, another attempt was made to seek review of the pca's decision not to undertake an investigation. in r. v. parliamentary commissioner for administration, ex parte lithgow and another,22 the applicant sought leave for judicial review of the pca's refusal to investigate his complaint about the payment of compensation under the aircraft and shipbuilding industries act 1977. there were a number of grounds of dispute as to whether it was an appropriate complaint for the pca. these included whether it was in fact a contractual or commercial matter and therefore, excluded by statute;23 whether the matter could have been referred to arbitration, thus providing a legal remedy;24 and finally whether or not the complaint was time-barred as it was over ten years 01d.25mr. justice macpherson refused leave on the basis that the application was itself time-barred by order 53 rules (it being over fifteen months since the pca's original decision) and, was not, in his opinion, a case which warranted the exercise of the available discretion. as to the wider question of whether or not the pca was subject to review, he offered the following observations: "i have not been certain that it would be right that the parliamentary commissioner should have questions as to his jurisdiction investigated by this court unless the matter could be said ever to fall within the principles of wednesbury unreasonableness (see associated provincial picture houses v. wednesbury corporation [1948] i k.b. 223, [1947] 2 all e.r. 680). if that happened, and if it could ever be suggested that the ombudsman had been perverse, perhaps different considerations might apply. "26 the judge was not certain that even then the pca would be within the ambit of the court's jurisdiction. he believed that this was a central issue to which the court would have to return in the future. the dyer decision the opportunity arose in the dyer case. the substantive grounds for challenge were not successful. ms. dyer mounted three claims. the first was that the pca had been wrong not to reopen her case on her request, after his report had been submitted. the court held that the pca was unable to reopen a case in those circumstances, unless a further referral was made by an m.p., under s.5(1) of the 1967 act. in rejecting the second point, that the pca was not entitled to limit the scope of his investigations to selected areas of the complaint, the court observed: 22. 26th. january, 1990, qbo, lexls transcript .. 23. s.5(3) & schedule 3 of 1967 act. 24. see s.5(2) of 1967 act. 25. see s.6(3) of 1967 act. 26. supra. n.22. part of this extract was quoted in the pea's annual reponfor 1991 h.c. 347 (1991/92) para.9.2 120 the reviewability of the parliamentary commissioner " [n] 0 investigation should be expected to solve all problems for all time and it cannot in my judgment be said that the approach adopted here by the pca was not one properly open to him. ' '27 finally the court rejected the suggestion that the pca' s practice of sending a draft report to the department concerned but not to the complainant, was a breach of natural justice.28 this practice served three main purposes: to allow inaccuracies to be clarified;29 notice is given of the proposed remedy; and to allow the department to warn the pca of matters which should not be disclosed under s.11(3).30 lord justice simon brown emphasised that it was the department and not the complainant that was subject to possible public criticism, and therefore he could not' 'conclude that fairness hence demanded that she too be shown the draft report. "31 the dyer decision and the constitutional position of the pca as to the question of jurisdiction, the judge dismissed arguments put by counsel that the constitutional position of the pca excluded the jurisdiction of the courts. one of the main considerations must be that the courts are prevented from challenging "proceedings" in parliament by the bill of rights 1688.32 the question must be to what extent do the pca's investigations amount to "proceedings". in addition to the earlier indications of its close associations with parliament,33 it is informative to note that s.1o(5) of the 1967 act grants the pca absolute privilege as regards his reports and correspondence with complainants, similar to the position for other "proceedings". however, this is limited to the law of defamation, and therefore cannot be argued as an immediate bar to judicial review. lord justice simon brown dismissed the constitutional arguments, stating: "many in government are answerable to parliament and yet answerable to the supervisory jurisdiction of this court. "34 it is unfortunate that the judge did not expand upon this statement. as it stands it is open to the interpretation that he misunderstood the position of the pca, equating 27. supra. n.1 at 383. 28. there is statutory requirement to send the report to the department s.io(2) of 1967 act. however, the pea is also given discretion as to how he conducts his inquiries s.7(2) of 1967 act. it is submitted that he could decide to send a draft report to the complainant via the m.p. even in the absence of a statutory requirement. 29. this is to prevent a recalcitrant department claiming before a select committee hearing that the report is inaccurate. 30. s.1i(3) of the 1967 act allows the relevant minister to give notice that information, if disclosed, would be prejudicial to the safety of the state, or otherwise contrary to the public interest. 31. supra. n.1 at 384. 32. article 9 states "that the freedome of speech and debates or proceedings in parlyment ought not to be impeached or questioned in any court or place out of parlyment. " 33. supra. ns.5-13 & text. 34. supra. n.1 at 380. 121 the denning law journal him with the government departments he investigates. yet he is an officer of parliament, and independent of government. presumably, it was meant to imply that even although a government department is answerable to parliament, it does not preclude the court's jurisdiction. this still does not really solve the problem of whether the pca's investigations are' 'proceedings" in parliament. a government department and its activities clearly does not fall under this term. unfortunately argument does not seem to have been taken on the direct point of the application of the bill of rights to the pca. a narrower submission on the court's jurisdiction was also rejected. it had been argued that the courts could only review the pca's discretion in cases of extreme abuse of that power.35 it would appear that the court had accepted no restrictions on its powers of review. yet, lord justice simon brown went on to state that: " [i] t does not follow that this court will readily be persuaded to interfere with the exercise of the pca's discretion ... bearing in mind too, that the exercise of these particular discretions inevitably involves a high degree of subjective judgment, it follows that it will always be difficult to mount an effective challenge on what may be called the conventional ground of wednesbury unreasonableness. "36 this mirrors the position envisaged in the standing committee reportsy it is perhaps possible to see this decision in a wider context as one of a number of recent decisions which have extended the ambit of judicial review to peripheral functions of parliament.38 whether this is a reaction to a perceived impotency of the legislature, in view of its virtual control by the executive, combined with the length of administration by the current government, is yet to be seen. it could be a very interesting development in the relationship between the courts and parliament. further implications of the dyer decision there are many other implications from the decision in dyer. in relation to the office, it opens the potential for review of decisions in a number of areas. there may well be questions as to whether the pca has exceeded his jurisdiction. there 35. nottinghamshire county council v. secretary of state for environment (1986) a.c. 240 & r. v. secretary of state for environment, ex parte hammersmith & fulham london borough council (1991) 1 a.c. 521 were cited in support of this argument. this is a similar argument to those used by earlier academic commentators supra. n.20. 36. supra. n.1 at 381. 37. supra. ns.8 & 11. 38. for example r. v. ecclesiastical committee of both houses of parliament, ex parte the church society, 22nd. october, & 28th. october, 1993, the times, 4th. november, 1993; the independent, 4th. november, 1993. consider also the warning by the speaker on 21st. july, 1993, (hansard 6th. series vo1.229, cols.35 1-352), in light of the possible arguments to be raised in r. v. secretary of state for foreign affairs, ex parte rees-mogg [1994] q.b. 552; [1994] 2 w.l.r. 115; [1994] 1 all e.r. 457]. 122 the reviewability of the parliamentary commissioner may also be fertile ground in the areas where he holds discretionary power. for example, the pca has a statutory discretion as to acceptance of cases where other remedies are available to the complainant. 39 this aspect of his powers was certainly viewed by sir cecil clothier as a possible target for judicial review. 40 further questions might be raised as to the pca's investigative procedure, and whether or not the requirements of natural justice have been met. the pca' s office will be happy enough with the decision in dyer on this point, as it lends legal weight to their established practice in this matter. despite criticism by writers such as burgess, the office has always maintained that it would be a pointless exercise to send a copy of the draft report to the complainant. 41 the main purposes have already been noted.42 it is argued that the complainant's side of the matter will have already b.een supplied and any omissions or inconsistencies investigated. it appears that the office fears a protracted correspondence with the "professional" complainants that they sometimes attract. it is impossible to tell how much dissatisfaction is caused by this procedure, as there has been little work in·the study of the complainant's reaction other than burgess.43 an unarguably negative consequence ofthisdecision may be the increased length of investigations, particularly if the department concerned seeks to challenge the pca' s decision to investigate. the other major question arising in light of the dyer decision is where does this leave the select committee on the pca.44 for many years this committee has served as a form of appeal/review from the pca' s decisions as to whether or not to investigate a complaint. if an m. p. or complainant is unhappy with the outcome, they are usually referred to the select committee. the committee will investigate the complaint and can call the pca to account for his decision. if the courts are now going to share this role, it may be tempting for the dissatisfied complainant to seek the judicial option. it will cause a certain amount of confusion. it could also lead to an indirect clash between the select committee and the courts, if they arrive at opposing views as to the correctness of the pca's conduct of the investigation. the select committee could find its attempts to force a recalcitrant department to provide a remedy might be hindered by the department seeking judicial review of the pca's decision. 39. s.5(2) & (5) of 1967 act. 40. supra. n.16. also woolfl.j. stated that he would not find it unsatisfactory if the cla did not investigate a complaint for which there might be a remedy by way'of judicial review r. v. commissioner for local administration, ex parte croydon london borough council supra. n.17 at 1045 this would apparently effectively fetter the cla's discretion in this matter. 41. paul burgess, "whose side is the ombudsman on?" (1983) 63 new society 55. the article is much refuted see w.k. reid, "what's the good of law in a case o' the kind?" [1993] p.l. 221 at 222. for comment on this aspect of the dyer decision see norman s. marsh, "the extent and depth of judicial review of the decisions of the parliamentary commissioner for administration" [1994] p. l. 347. 42. supra. ns. 28-31 & text. 43. the select committee on the pca has called for a complainant satisfaction survey supra. n.3 at para. 23. it is not clear what changes would be made in light of any such survey as a result of the decision in dyer. the office has had a practice of sending a draft report to a complainant, or a third party who is criticised in the report, to allow an opportunity for comment. 123 the denning law journal further, the question remains that now the pca could be said to be truly in the legal domain, it may not be long before pressure mounts to grant the pea statutory powers of enforcement. the granting of enhanced powers to the clas has been widely regarded as a success.45 although it must be remembered that they did not have the benefit of a device such as the select committee. if the pca were to be granted such powers, one of the primary functions of the select committee would become largely irrelevant. conclusion the dyer decision represents the legal "colonization" of another essentially nonlegal redress mechanism. this is despite the trend towards the concept of alternative dispute resolution, of which the pca was a prime, public law example. as has been seen, the pca was designed to aid m.p.s in their scrutiny of the executive. it was not intended to be a "legal" device, but to remedy maladministration, and improve administration in general, thus preventing recurrent problems. the effect of the dyer decision may well be the importation of more legal concepts into the process, and a move away from the concerns of efficient administration. this may well distract from considering the complaint in terms of good or maladministration. the pea has successfully balanced the needs of the administration, with the needs of the individual, and has remained a unique unit, supervised by the select committee. it would be unfortunate if such a successful alternative redress mechanism as the pca became merely an adjunct to, or an informal tier, of the legal system, rather than an institution equal to the courts in status, but concerned with different issues. 44. for the work of the select conunittee, see roy gregory, "the select conunittee on the pca 1967-1980" [1982] p.l. 49. 45. see local government act 1989 part ii. 124 lord denning & the publicipriv ate divide dawn oliver* introduction when lord denning retired from the bench in 1982 a very full and detailed assessment of his contributions to many areas of the law was published, edited by professors jowell and mcauslan.1 this collection contained perceptive and thorough essays on administrative law by jeffrey jowell, and on human rights by claire palley. it would be superfluous for me to seek to go down that same road and anyway in the allotted space it would not be possible to do justice to all that lord denning contributed to public law. so i shall take another approach, and focus on his contributions on the control of abuses of power and in the area of what is now supposed to be the divide between public and private law. these are topics that are currently taxing the courts, and academics, and judges writing extra-judicially: what is the basis for the jurisdiction of the courts in judicial review2 and in what ways does it differ from the basis of the courts' jurisdiction in private law?3 is there a substantive (as opposed to procedural) public/private divide?4 these are large questions and it would not be realistic to seek to answer them here, but light is shed on these issues by the ways in which lord denning dealt with a number of cases. the cases in which i am particularly interested were mostly brought in the queen's bench division, and not in the divisional court by way of what we would now call judicial review. they were private law applications for declarations or injunctions for breach of the rules of natural * professor of constitutional law, university college, london. 1 lord denning: the judge and the law (sweet and maxwell, 1984). 2 c. forsyth, "of fig leaves and fairy tales: the ultra vires doctrine, the sovereignty of parliament and judicial review" 55 (1996) c.l.j. 122. for critiques of this theory see sir john laws, "illegality: the problem of jurisdiction" in m. supperstone and 1. goudie, eds, judicial review (2nd. ed.,butterworths, 1997) at pp.4.13-4.19; p.p.craig, "ultra vires and the foundations of judicial review" (1998) 57 c.l.!. 63 at pp.77-8. 3 see essays in m. taggart, ed. the province of administrative law, (hart publishing, 1997). 41. beatson, "'public' and 'private' in english administrative law" (1987) 103 l.q.r. 34 at p.38; lord woolf, "droit public english style" [1995] p.l. 57. 71 denning law journal justice and fairness and rationality and non-discrimination. lord dennning and administrative law we are accustomed to assuming that "administrative law" is part of public law, so that in principle cases involving duties of fairness and rationality outside of contract should be brought by way of judicial review. this assumption has been reinforced by the decision in 0 'reilly v. mackman.5 it is worth noting that, when this case came before lord denning in the court of appeal,6 his judgement was on similar lines to the house of lords decision: "now that judicial review is available to give every kind of remedy, i think it should be the normal recourse in all cases of public law where a private person is challenging the conduct of a public authority or a public body, or of anyone acting in the exercise of a public duty.,,7 however, as we shall see, for lord denning this did not preclude the possibility of duties of fairness and rationality being imposed on private decision makers in private law. in breen v. amalgamated engineering union lord denning had made explicit that in his view administrative law was not a sub-species of public law.8 his concept of administrative law was not limited to public bodies and public functions: "it may truly now be said that we have developed a system of administrative law. these developments have been most marked in the review of decisions of statutory bodies: but they apply also to domestic bodies ...,,9 in effect lord denning was saying that duties of fairness and rationality may apply to the decisions of such private tribunals, categorising them as administrative law duties. the reason for imposing such duties was that private exercises of power needed to be controlled. lord denning continued in breen by reviewing the ways in which statutory bodies are now required to act fairly in the exercise of discretion, how discretion of a statutory body is never unfettered but must be exercised reasonably. 10 he then asked: 5 [1983] 2 a.c. 237. 6 [1982] 3 all e.r. 680. 7 ibid at p.693. 8 [1971] 1 all e.r. 1148 (c.a.). 9 ibid at p.1153. 10 ibid at pp.1153-4. 72 the publicipriv ate divide "does all this apply to a domestic body? i think it does, at any rate when it is a body set up by one of the powerful associations which we see nowadays. instances are readily to be found in the books, notably the stock exchange, the jockey club, the football association, and innumerable trade unions. all these delegate power to committees. these committees control the destinies of thousands. they have quite as much power as the statutory bodies of which i have been speaking. they can make or mar a man by their decisions. not only by expelling him from membership, but also by refusing to admit him as a member, or it may be, by a refusal to grant a licence or to give their approval. often their rules are framed to give them a discretion. they then claim that it is an unfettered discretion with which the courts have no right to interfere. they go too far. they claim too much ... their rules are said to be a contract between the members and the union.so be it. if they are a contract, there is an implied term that the discretion should be exercised fairly. but the rules are in reality more than a contract. they are a legislative code laid down by the council of the union to be obeyed by the members. this code should be subject to control by the courts just as much as the code laid down by parliament itself. if the rules set up a domestic body and give it a discretion, it is to be implied that body must exercise its discretion fairly."l! here is a strong marker that there is no substantive public/private law divide. powerful bodies, whether public or private, are under duties of fairness and rationality in certain circumstances, particularly where their decisions have a serious adverse effect on an individual, and the imposition of these duties is not limited to cases where there is an interference with the "right to work." read alongside the decision in 0 "reilly v. mackman the implication of breen is that, even though it is necessary to proceed by way of application for judicial review in public law cases where what is being challenged is, broadly, the exercise of a public or governmental function the same or similar duties of fairness and rationality may arise in private law. the bases for the application of administrative law this brings us to the question, what are the bases for the jurisdiction of the courts in private law to require bodies to act fairly and rationally in their decision making? there are a number of bases: contract, where notionally the courts are not imposing obligations, but giving effect to the express or implied intentions of the parties; or non-contractual bases, such as the need to protect property rights, ii ibid at p.1l54. 73 denning law journal to prevent abuse of monopoly power, to protect against restraints of trade, or to protect a person's right or liberty to work; or general public policy in favour of controlling abuses of power, which may in fact embrace each of the other heads. lord denning's judgments have considered each of these bases for the jurisdiction. an additional particular head could be added, the control of the exercise of common callings though often these will fall under the monopoly head. 12although, as far as i am aware, lord denning did not consider the law on common callings in any detail in his decisions, he relied on one of the leading cases, the ipswich tailors13 in nagle v. peilden. the case of nagle v. peilden illustrates these points about the bases for the private administrative law control of power. 14the plaintiff had been refused a trainer's licence by the stewards of the jockey club because she was a woman. she applied for a declaration that this practice was against public policy, and for an injunction. on the question whether the statement of claim disclosed a cause of action and whether it should be struck out, the court found for the plaintiff. lord denning's reasoning was based on the fact that the jockey club exercised a "virtual monopoly in an important field of human activity" and that "the common law of england recognises that a man (sic) has a right to work at his trade or profession without being unjustly excluded from it.,,15 under the treaty of european union article 119, the sex discrimination legislation and other measures the particular facts in nagle v. peilden could be dealt with nowadays without recourse to the common law. but the case still stands as authority for the duty of private regulatory bodies not to discriminate. so if a person were refused a trainer's licence for irrational reasons not covered by european law or british legislation, such as their religion, the colour of their hair, their political affiliations or personal animosity on the part of a member of the licensing body, applying nagle v. feilden the court would again find that this was unlawful, in effect imposing duties of fair and rational decision making on the regulatory body. on the discrimination point nagle v. peilden stands out as an exceptional decision. the record of the common law in recognising the wrong of discrimination has been generally poor. "... not all sex discrimination is unlawful ....discrimination is only unlawful if it occurs in one of the fields in which it is prohibited in the [sex discrimination act 1975].,,16 refusal to admit a member 12 see b. wyman, "the law of the public callings as a solution of the trust problems" xvn harvard law review (1903-1904) 156; n. arterburn, "the origin and first test of public callings" 75 u. penn lr. (1926-27) 411; for an example see harris v. dockwood (1810) 3 taunt 364. see also the discussion of this topic in m. taggart, corporatisation, privatisation and public law (legal research foundation, 1990) at p.29; p.p.craig [1991] p.l 538. 13 (1614) 11 co. rep.53a. 14 [1966] 1 all e.r. 689 (c.a.). 15 ibid at p.639. 16 in r v. entry clearance officer, ex parte amin [1983] 2 all e.r. 864 at p.871 per lord fraser. 74 the publicipriv ate divide from an ethnic minority to a members'club is not unlawful.]7 the common law does not as yet prohibit discrimination on grounds of sexual orientation. 18 however, the case law on common callings does show the common law acting against discrimination: in constantine v. imperial hotels a black west indian cricketer successfully sued in tort for the refusal of accommodation in the hotel. 19 according to lord denning, the court's jurisdiction to grant a remedy of declaration or injunction in nagle v. feilden was based on public policy. the plaintiffs case was pleaded on the basis that the practice of the defendants was "in restraint of trade and contrary to public policy." lord denning did not use the phrase "restraint of trade" in his reasoning, and dealt with the case on public .policy grounds. in particular he held that: "a man's right to work at his trade or profession is just as important to him as, perhaps more important than, his right to property. just as the courts will intervene to protect his rights of property, so they will also intervene to protect his right to work. 20 this is an important point, as it opens up wider grounds for the courts to control decision making in private law than restraint of trade, which is of fairly narrow application. other case law supports the view that there is jurisdiction to control decision making of private bodies outside restraint of trade, or contract, or for the protection of property rights or to protect a right to work. in effect the courts will rest their jurisdiction on a range of public policy considerations. for instance, in mcinnes v. onslow fane the plaintiffs application for a boxing manager's licence had been refused and he was complaining of the lack of a hearing.21 the plaintiff failed because this was an application case, not a case of forfeiture or legitimate expectation, and there had been no breach of the relevant duties of fairness in dealing with applications. but megarry v.-c. laid down requirements of a range of fair decision making procedures in application, forfeiture or legitimate expectation cases affecting a "liberty to work." they include a duty "to reach an honest conclusion without bias and not in pursuance of any capricious policy,,22a formulation, like that in nagle, that is reminiscent of wednesbury reasonableness. megarry v.-c.'s requirements in mcinnes did not depend on the existence of a 17 charter v. race relations board [1973] a.c. 686 and docker's labour club v. race relations board [1976] a.c. 285. ]8 see r. v. ministry of defence, ex parte smith [1996] q.b. 517; grant v. south west trains [1998] all e.r. [e.c.] 193. p v. s and cornwall county council [1996] i.r.l.r. 347; chessington world of adventures v. reed [1997] i.r.l.r. 556. 19 [1944] 1 k.b. 693. 20 ibid at p.694. 21 [1978] 1 w.l.r. 1520 22 ibid at p.1530. 75 denning law journal contractual relationship, and nor did he base his decision in restraint of trade. he was drawing analogies with a wide range of cases on immigration, reputations, privacy and status as well as livelihood. the foundation of the jurisdiction appears to have been public policy here policy in favour of enabling people to earn their living in their own way. although nagle v. feilden is the leading case on the imposition of rationality in private decision making, lord denning discussed the basis for obligations of fairness and rationality in private decision making in a number of other cases. in lee v. showman s guild, for instance, he emphasised that obligations on such an association as the defendants were not only derived from contract, but are also governed by public policy: 23 "although the jurisdiction of a domestic tribunal is based on contract ... the parties are not free to make what contract they like. there are important limitations imposed by public policy. the tribunal must, for instance, observe the principles of natural justice . ... any stipulation to the contrary would be invalid. they cannot stipulate for the power to condemn a man unheard. ,,24 later in the case he focused on the inequality of bargaining power in the relationship: "it is very different with domestic tribunals which sit in judgment on the members of a trade or profession. they wield powers as great as, if not greater than, any exercised by the courts of law. they can deprive a man (sic) of his livelihood. they can ban him from the trade in which he has spent his life and which is the only trade he knows. they are usually empowered to do this for any breach of their rules, which, be it noted, are rules which they impose and which he has no real opportunity of accepting or rejecting. in theory their powers are based on contract. the man is supposed to have contracted to give them these great powers; but in practice he has no choice in the matter.,,25 hence the public policy on which the duties were based was that of preventing abuses of (private) power which interfere with a person's "right to work." in enderby town football club v. football association lord denning developed the concept that rules of associations are a legislative code, giving rise 23 [1952] 1 all e.r. 1175. 24 ibid at pp.1l80-!. 2s ibid at p.1l8!. 76 the publicipriv ate divide 26to control by the courts: "putting the fiction aside the truth is that the rules are nothing more nor less than a legislative code a set of regulations laid down by the governing body to be observed by all who are, or become, members of the association. such regulations, though said to be a contract, are subject to the control of the courts. if they are unreasonable restraint of trade they are invalid: see dickson v. pharmaceutical society., .. if they unreasonably shut out a man from his right to work, they are invalid ... see nagle v. feilden ...,,27 here lord denning was clearly distinguishing two grounds for intervention, restraint of trade and public policy, and maintaining a separate basis from restraint of trade or contract for the court's jurisdiction to intervene. thus in these cases the courts have been claiming a power to impose duties on private bodies, not on the basis that they are in contractual relationships with their members nor infringing property rights but because they are private legislators under a duty, as exercisers of power, to exercise their powers with due regard for the impact of their decisions on those affected by them. that this is still an important issue is illustrated by the difficulties experienced in finding a legal basis for the control of private regulatory power in the light of the decision in law v. national greyhound racing club to the effect that regulatory bodies in sport are not subject to judicial review.28 this raises the question whether they are subject to duties of fairness and rationality in private law. nagle v. feilden and the other cases referred to above would suggest that they are. in stevenage borough football club ltd. v. the football league ltd. stevenage football club had sought, in the chancery division, to challenge the validity of the criteria applied by the football league in refusing stevenage promotion to the third division.29 stevenage alleged that the criteria were in restraint of trade and unreasonable. carnwath j. observed that there appeared to be several lines of cases in which the courts had exercised a supervisory jurisdiction, awarding declarations or injunctions as remedies. first, those in which the court focused on the control of ~ower exercised by regulatory bodies, treating their rules as legislative in nature. 0 carnwath j. particularly mentioned lord denning's judgments in enderby town football club v. football 26 [1971] 1 all e.r. 215. 27 ibid at p.219. the reference for dickson is [1970] a.c. 403. 28 [1983] 1 w.l.r. 1302. 29 unreported, 23rd july, 1996. the decision was upheld in the court of appeal: (1997) 9 admin. l.r. 109. 30 transcript of stevenage, ibid at p.28. 77 denning law journal association31 and breen v. amalgamated engineering union.32 second, those which like nagle v. feilden, approached this kind of matter as raising issues of restraint of trade. carnwath 1. commented that this appears to be the preferred approach in the chancery division33 although it is notable that lord denning did not treat nagle v. feilden as a restraint of trade case, and nor did megarry v.c. treat mcinnes v. onslow fane as a restraint of trade case. and third, cases including nagle in places especially in the judgment of salmon l.j. which have held that it was unlawful to deprive a person of the right or liberty to work. 34 carnwath j. considered that he would have had jurisdiction to grant declaratory relief to stevenage, but that he was entitled in the exercise of his discretion to refuse relief because of the delay on the part of the plaintiff and the prejudice to third parties that this would cause.35 the court of appeal endorsed this view. 36 fundamental values we have seen that lord denning expressed a number of justifications for his view that the courts were entitled to impose duties of fairness and rationality on decision makers in these cases. i suggest that there is behind these and other decisions of lord denning and indeed many decisions in public and private administrative law a coherent set of values which the courts are seeking to protect by requiring that they be given some weight and relevance by decision makers. nagle was about the right or liberty to work. the importance of work for an individual is that it provides him or her with security in the form of an income, and status in society. denial of a right to work by a professional or regulatory body may amount to a denial of the right to live one's life in one's own way a denial of autonomy. it may carry a slur on the applicant's character which could lower him or her in the eyes of society. but the right or liberty to work was not the only interest that lord denning was seeking to protect in his decisions. in breen the plaintiff had been refused recognition as a shop steward by the union despite the fact that his fellow workers had elected him. discussing the remedy lord denning said: "... he has suffered in reputation and standing. he has been injured in his proper feelings of dignity and pride. he has lost the chance of 31 [1971] ch. 591 and supra n.26. 32 [1971] 2 q.b. 175 and supra n.8. 33 supra n.30 at p.29. and see watson v. prager [1991] 1 w.l.r. 726 per scott 1. 34 ibid at p.28. see also mclnnes v. onslow fane supra n.21. 35 ibid at pp.56-7 & 61. 36 (1997) 9 admin. l.r. 109. 78 the publicipriv ate divide a career of honour in the union.,,3? in holding that a declaration should be granted that the refusal by the union to recognise him as shop steward was invalid, lord denning reasoned that "it will justify him in the eyes of his fellow workers.',3s clearly the plaintiffs interest in his own dignity, respect and status were what influenced lord denning to decide in his favour. 39examples could be multiplied, but overall it is suggested that the justifications for imposing duties of fairness and rationality in private decision making and in public decision making are the same, a recognition of the fact that individuals have legitimate interests in their own autonomy, dignity, respect, status and security, and that this calls for those in positions of power over individuals to weigh up those interests in their decision making.40 concluding comments claire palley, in her essay in the jowel1/mcauslan collection, suggests that since at least 1949 lord denning had been preoccupiecl with the themes of power, responsibility and abuse of power (including dishonourab1e conduct and exploitation of process) whether by public authorities, groups or individuals.41 the cases referred to above are only a small selection of those in which lord denning sought to control abuses of power. but they are of particular importance for administrative law in showing how it is not simply a branch of public law but a technique for controlling exercises of power on both sides of the public/private divide. lord denning's approach can help to resolve the problems caused by the decisions in 0 reilly v. mackman and law v. greyhound racing club. he accepted a procedural divide in his judgment in the court of appeal in 0 reilly, but this need not preclude the courts exercising controls in private law. in effect the common law has long provided protection for individuals whose vital interests are threatened by exercises of decision making power whether by public or private bodies, using as its basis public policy. there are certain well established heads of public policy implied contractual terms, restraint of trade. but the categories of public policy are not closed, and according to lord denning, they extend to cases where there is an imbalance of power between the parties and the weaker party's interests in his or her dignity, autonomy, respect, status or security are at risk. 37 supra n.8 at p.1l57. 38 ibid at p.1l56. 39 in this result of the case lord denning was in a minority, and the other judges in the court of appeal found against the plaintiff on the facts found by the trial judge and on evidential points. 40 i have outlined this argument in "the underlying values of public and private law" in m. taggart, ed., supra n.3; and "common values in public and private law and the public/private divide" [1997] p.l. 630. 41 "lord denning and human rights reassertion of the right to justice" supra n.1 at p.364. 79 some perspecitves on the prospects and significance of judicial independence in post-1990 african constitutions the denning law journal 17 some perspectives on the prospects for judicial independence in post-1990 african constitutions charles manga fombad∗ introduction constitutional reforms have dominated all political discourse in africa since the current transition from authoritarian to democratic rule started in the early 1990s. this so-called “third wave”1 of democratisation has provoked african politicians and their constitutional engineers to design and introduce new or substantially modified constitutions. in spite of this frantic remodelling of constitutions, africa’s record on constitutionalism has not been a particularly good one. most post-independence constitutions were quickly abrogated or easily subverted, suspended or brazenly ignored at the whims of african leaders. the new post 1990 constitutions appear to be an attempt not only to ∗ lic-en-drt (un of y’de), llm, phd, (un of london), associate professor department of law, university of botswana, ub 00705 gabarone botswana 1 samuel huntingdon coined the expression in, the third wave: democratization in the late twentieth century. norma, ok, university of oklahoma press (1991), pp 15-16. he defines a “wave of democratization” simply as “a group of transitions from nondemocratic to democratic regimes that occur within a specified period of time and that significantly out-number transitions in the opposite direction during that period.” he identifies two previous waves of democratization: a long, slow wave from 1828–1926, and a second wave from 1943–1962. most consider the “third wave” to have started in the 1970s, although it only reached african shores in the late 1980s and early 1990s, in what larry diamond and others such as julius ihonvbere and terisa turner call “second liberation” or “second revolution”. larry diamond, developing democracy in africa: african and international perspectives, presented at the workshop on democracy in africa in comparative perspective, at stanford university (27april, 2001), at http://democracy.stanford.edu/seminar/diamondafrica.htm; see also larry diamond, “is the third wave over?” 7 journal of democracy, (1996), 20, 20–21 and larry diamond et al (eds), in consolidating the third wave of democracies. baltimore, john hopkins university press (1997); and julius ihonvbere and terisa turner, “africa’s second revolution in the 1990s,” security dialogue (1993), 349-352. http://democracy.stanford.edu/seminar/diamondafrica.htm the denning law journal 18 break away from the dark era of authoritarianism but also to usher the continent into a new era of constitutionalism,2 respect for the rule of law and democracy. the existence of an independent judiciary is one of the core elements of modern constitutionalism and a cornerstone of democracy and good governance. before 1990, the judiciary in most african countries had been reduced into the handmaiden of the various dictatorial regimes in place and was thus incapable of operating effectively either as a guardian of the constitution, the protector of human rights or an impartial enforcer of the rule of law. judicial independence is now well established as a cardinal feature of the liberal democracy3 that many contemporary african regimes purport to have established. the struggle for judicial independence is occurring throughout the world, not only in the transitional democracies in africa, but also in the advanced democracies such as the us, britain, france, germany and japan. this is not surprising because judicial independence has never been a condition that is established fully or that is enjoyed without debate, controversy or challenge.4 it is, like democracy itself, an ideal to which all modern civilised states should aspire to attain. it is so fundamental that an american judge has observed that “the us constitution would be just a piece of paper today if there were not independent judges to enforce it.”5 almost all african post-1990 new or revised constitutions provide not only for a separation of powers but also for an independent judiciary. independent courts are indeed crucial to the efforts to establish and sustain a constitutional ethos and respect for the rule of law in many of the continent’s fragile and faltering democracies, where the threat of regression to the dictatorships of 2 for the meaning of the rather complex concept of “constitutionalism”, see, charles manga fombad, “post 1990 constitutional reforms in africa and the prospects for constitutionalism.” (forthcoming in a g nhema and p t zelaza, african conflicts: management, resolution and post-conflict recovery and development; and, louis henkin, “elements of constitutionalism,” 60 the review (1998), 11-22. 3 for the difference between liberal democracy and other forms of democracy, see, giovanni sartori, democratic theory. detroit, wayne state university press (1962). 4 see, peter h russell, “judicial independence in comparative perspective,” in peter h. russell and david m o’ brien, judicial independence in the age of democracy. critical perspectives from around the world. charlottesville, university of virginia (2001), at p 301 5 see the hon richard arnold, “should more limits be placed on the federal judiciary: no,” spectrums (1997), at p 29. the denning law journal 19 yesteryears remains potent. one major lesson that can be learnt from post world war ii europe is the fact that the bill of rights without some independent judiciary is useless against totalitarian dictators.6 this paper examines a number of african constitutions which reflect the main western constitutional models and traditions that have been received on the continent to see what the prospects for judicial independence are. whilst recognising the difficulties of making such an assessment, it is contended that the prospects for judicial independence, which in turn enhances the prospects for constitutionalism and democratic consolidation, are considerably enhanced when there are constitutional provisions that entrench this. it is doubtful whether in the absence of carefully worded constitutional provisions providing for this, the actual implementation of a constitution would in itself facilitate the emergence of an independent judiciary. at this critical stage of africa’s fragile democratic transition, when the chances of backsliding are quite high, a constitutional commitment to judicial independence may provide the climate for genuine democracy, political stability and respect for the rule of law. the meaning of judicial independence despite the abundant literature on the subject,7 there is no consensus amongst scholars on what exactly is meant by judicial independence. the main definitional problem is that judicial independence is a relative, and not an absolute concept. it does not refer to a single kind of relationship or something that a judicial system “has” or “does not have,” but rather what it may have “more of it” or “less of it.”8 be that as it may, most scholars do agree that a truly independent judiciary must have at least three characteristics viz, first, that it is impartial, second, that its decisions are accepted by all and third, that it is free from undue influence. to this three, must be added a fourth, that it must be capable of rendering justice on all issues of substantial legal and constitutional importance.9 from 6 see, c.j. friedrich, the impact of the american constitution abroad. boston, boston university press (1967), at p 145. 7 see in particular, christopher m. larkins, “judicial independence and democratization: a theoretical and conceptual analysis,” 44 american journal of comparative law (1996), 608-611. 8 see, the asian development bank, judicial independence project, “judicial independence overview and country-level summaries,” 9 adopted from the definition of christopher m. larkins, op cit at p 611. the denning law journal 20 this perspective, an independent judiciary can be defined as one that is free to render justice on all issues of substantial legal and constitutional importance, fairly, impartially, in accordance with the law, without threat, fear of reprisal, intimidation or any other undue influence or consideration. impartiality encompasses the idea that judges should be both individually and collectively autonomous and base their decisions purely on the law and the facts and not yield to any pressure from the parties. at the heart of judicial autonomy is the need for judges to be able to act as neutral third parties with no bias towards the parties irrespective of their economic, social and political status in society. the second characteristics, the need for judicial decisions once rendered to be respected by all, is what has been referred to as “social legitimacy.”10 this involves the capacity of judicial institutions to engender the belief that they deserve obedience and trust. it is this social trust and credibility in justice done and being seen to be done that justifies the state’s monopoly of all forms of legal force to enforce judicial decisions. the third element is the absence of “undue” interference or what has also been referred to as “political insularity.”11 governments pose the most serious threat to judicial independence, not only because of their potential interest in the outcome of a myriad of cases but also because of the enormous power it has and can exercise over judges. judges therefore need to be insulated from any threats or manipulation that may force them to act unjustly in favour of the state. the emphasis however, is on “undue influences,” whether external or internal, which may undermine the judge’s capacity to adjudicate in strict conformity with the facts and the law. some internal influences, such as exchanges between judges through memoranda and conferences on a matter they are handling, as well as external influences, such as reliance on the critical writings of scholars, is not only unavoidable but desirable in the adjudication process. thus, as peter russell rightly points out, to formulate the principle of judicial independence in a way that requires judges to be totally uninfluenced by anybody whatsoever is totally unrealistic.12 absolute judicial insularity is therefore impossible and undesirable. judges cannot operate in total isolation of the political system but have to be appointed or elected to their positions, paid a salary and made accountable as every other person in society. judicial 10 see, the asian judicial independence project, op cit, at p 14. 11 see, owen fiss “the limits of judicial independence,” 25 university of miami interamerican law review (1993), 59-60. 12 in “towards a general theory of judicial independence,” in peter h russell and david m o’brien, op cit, at p 12. the denning law journal 21 independence essentially deals with the relationships that judicial institutions and individual judges should or should not have with other institutions, groups or individuals as well as the behaviour, way of thinking and set of attitudes expected of judges.13 with perfect and unobstructed independence impossible, the challenge is usually to see how best impartial justice can be administered within the bounds of unavoidable judicial dependence on all political and social actors in society. finally, another characteristic, often ignored, is the fact that the judiciary must be capable of rendering justice on all issues of substantial legal and constitutional importance. a judiciary can hardly be considered credibly independent if its jurisdiction is so narrowly defined that it is unable to deal with the crucial legal and constitutional issues that matter in the country. the challenges to a comparative assessment of judicial independence a few caveats on the general idea of attempting a comparative assessment of judicial independence in many countries needs to be inserted here. although numerous studies have been carried out on the subject, a number of difficulties in accurately identifying and measuring judicial independence have been observed. besides the well established fact that the idea of judicial independence itself is a variable “more or less” rather than a “yes or no” concept that does not lend itself to an easy straightforward scientific assessment, three particular problems need to be noted. first, there is often a difficulty with interpreting the evidence of impartiality, insularity and the scope of a judiciary’s authority as an institution.14 the constitution of a country might well guarantee judges a high degree of independence but restrict the scope of their authority to regulate the legality of the government’s behaviour in certain sensitive areas and thus undermine the effectiveness of the judiciary. the best and often cited example of this is the spanish judiciary under the authoritarian regime of francisco franco. although the judiciary was relatively free from political interference, many politically-sensitive issues such as labour policy, economic and commercial matters and certain aspects of criminal procedure, were reserved to be handled by special courts which the regime could count on to support its 13 see, ibid at 3-9 14 this point is forcefully developed by christopher m. larkins, op cit, at 611-612. the denning law journal 22 interests.15 in the constitutions of almost all francophone and luxophone african countries, all questions dealing with the control of the constitutionality of laws are exclusively reserved for special constitutional tribunals, which are basically quasi-administrative bodies often composed of political appointees who are apt to deliver decisions favourable to the government. it is also these partisan bodies that are often given the powers to handle the frequent electoral disputes that have usually arisen after most of the post-1990 multiparty elections that have taken place. the major problem that this has given rise to in these countries is that there is as a result no effective and efficient mechanism for ensuring that the rights and privileges provided for and protected by the constitution are not violated. this also makes it difficult to draw any firm conclusions on the formal guarantees of judicial independence since these could be violated with impunity by the government. a second problem inheres from the fact that courts do not exist or operate in a vacuum but are subject to some democratic restrictions that inevitably restrict their independence and scope of authority. most constitutions usually allow restrictions to be imposed in certain circumscribed emergency situations, such as the outbreak of war, civil insurrection and grave natural disasters. the frequent and prolonged declaration of states of emergencies in many african countries often substantially undermines the ability of the judiciary to operate independently especially in dealing with human rights violations.16 the quality of judicial independence in any country will therefore depend on the nature of restrictions that may be imposed to deal with emergencies or other special situations that may arise and how often the power to impose these restrictions is exercised. another factor is that assessment difficulties are often compounded by some general structural and contextual issues such as the poor training of the judiciary, the poor quality or unavailability of legal services, the inadequacy of courtroom facilities, the lack of essential material resources and a host of other logistical issues, all of which directly or indirectly impact on judicial independence. because these factors may or may not be present to the same extent in the different countries, merely looking at the legal framework for judicial independence alone without taking into account these factors may not give a fairly accurate picture. 15 ibid 612-613. 16 for a discussion of the effects of extensive powers to impose a state of emergency, see charles manga fombad, “cameroon’s emergency powers: a recipe for (un)constitutional dictatorship?” 48 journal of african law (2004), 62-81. the denning law journal 23 a number of studies have suggested that some of the difficulties that have arisen in making an accurate comparative assessment of the standards of judicial independence in different countries could be overcome by looking at the outcome of courts or through a careful interpretative exercise in which the structural conditions of the courts are analysed along with the judiciary’s functional relationship with other political institutions.17 although this is useful, it is unlikely going to produce a result that will be more accurate. it is doubtful whether it could ever be possible to develop a system of study that would produce an exact and accurate result. it is therefore suggested that what may more usefully be done is to assess the “prospects” for, rather than the actual “existence” of judicial independence. by focusing such an analysis on the constitutional provisions, one will be looking at legal rules that set standards that are less vulnerable to frequent changes and governmental manipulation. the basic elements for gauging the prospects for judicial independence diverse approaches to judicial independence current african constitutional developments continue to be shaped and influenced by the western constitutional models that were inherited from the colonial period. although before 1990 and since then, there have been significant changes to the constitutions that were adopted at independence, these changes have by and large not substantially altered the received models. the british parliamentary or westminster model, which has been widely adopted in africa, was actually designed by the colonial office in london, and introduced with slight variations to the different former british colonies. the other leading model, the gaullist model, developed in paris and based on the constitution of the french fifth republic, was also introduced with slight changes to most francophone african countries. a variation of the gaullist model, which reflects the continental civil law system, has been adopted by luxophone african countries. it is also worth noting that elements of the american presidential model have been grafted upon the westminster model adopted in some of the anglophone african countries. we shall however, briefly examine only the british and french models, both archetypical of the 17 ibid 618-619. the denning law journal 24 common law and civil law approaches that have widely been copied in africa. although england is usually regarded as the cradle of the ideal of judicial independence, the judiciary in england is neither a separate nor co-equal branch of government. in fact, the very concept of judicial independence in the english system has been described as an “inchoate one.”18 nevertheless, the english have developed an essentially informal but effective system of judicial independence that largely relies on the congeries of statutes, delegated legislation, custom and convention. historically, the act of settlement of 1701, which provided that judges were not to be dismissed without addresses by both houses of parliament, is usually considered to be the basis of judicial independence in england. over the centuries, the british reputation for the high standards of judicial independence, marked by such conventional hallmarks as security of tenure, fiscal independence, impartiality and freedom from executive pressure, is due largely to a strong political culture that has consistently provided protection for the judiciary. by contrast, the french model of judicial independence has been substantially shaped by the obsessive gallic fear of legal dictatorship through a “government of judges.”19 this approach can be traced to pre-revolutionary france. because of the bad reputation of royal courts or parlements before the french revolution, one of the first measures that the revolutionaries took was to break the powers of these courts by subordinating them to the complete control of the executive. article 64 of the 1958 constitution of the french fifth republic reflects this mistrust of the judiciary when it states that the “president of the republic is the guardian of the independence of the judiciary,” clearly suggesting that the judiciary is not on the same par as the executive but rather below it. this conclusion is reinforced by the powers given to the president to appoint, promote, transfer and dismiss judicial personnel. although in doing so, he is supposed to receive advice from the higher judicial council, a body whose composition and proceedings he controls, this does not disguise the fact that judicial independence is thereby substantially compromised. 18 robert stevens, “judicial independence in england: a loss of innocence,” in peter h russell and david m o’brien, op cit, at p 155. 19 see, dennis tallon, “the constitution and the courts in france,” 27 american journal of comparative law (1979), 567-575; john henry merryman, “the french deviation,” 44 american journal of comparative law (1996), 109-114; and michael h. davis, “the law/politics distinction, the french conseil constitutionnnel, and the us supreme court,” 34 american journal of comparative law (1986), 45-92. the denning law journal 25 basic elements of judicial independence the general movement by many former african authoritarian regimes towards liberal democracy, which has as one of its essential attributes, an independent judiciary, raises the question whether there are any minimum conditions or basic elements that must be present for the judiciary in any given country to be classified as independent. although, even in the liberal democracies, such as in britain and france, as we just saw above, there are differences in approach, there appears to be emerging certain factors that can be categorised as basic elements for gauging the extent to which the prospects for judicial independence in a given country are good or bad. various governmental and non-governmental guidelines have been drafted internationally and regionally by experts aimed at fleshing out and agreeing on what could be considered as the basic elements of judicial independence.20 although these documents are not binding, they nevertheless provide evidence of a high level of support for what may be regarded as certain universally agreed core elements of judicial independence. a number of international and regional instruments make general reference to the concept of judicial independence.21 under the aegis of the united nations, a number of recommendations have been adopted to clarify the meaning and scope of the notion of judicial independence as guaranteed under the universal declaration of human rights, 1948 and the international covenant on civil and political rights, 1966. this is contained in the united nations basic principles on the independence of the judiciary, which calls on member states to guarantee judicial independence domestically through 20 for a detailed discussion of this, see violaine autheman, “global best practices: judicial integrity standards and consensus principles,” ifes rule of law white paper series, http://66.249.93.104/search?q=cache:tvdxjq6criwj:www.ifes.org/searchable/ifes_sit e/... 21 see for example, article 10 of the universal declaration of human rights, 1948; article 14(1) of the international covenant on civil and political rights, 1966; article 6(1) of the european convention for the protection of human rights and fundamental freedoms, 1950; article 8(1) of the inter-american convention on human rights, 1969; and article 7(1) of the african charter on human and peoples’ rights, 1981. http://66.249.93.104/search?q=cache:tvdxjq6criwj:www.ifes.org/searchable/ifes_site/ http://66.249.93.104/search?q=cache:tvdxjq6criwj:www.ifes.org/searchable/ifes_site/ the denning law journal 26 constitutional or legal provisions and highlights certain standards for attaining judicial independence. 22 at a regional level, there have also been several initiatives. in africa, the african commission of human and peoples’ rights, established under the african charter on human and peoples’ rights, 1981, after recalling that justice is a core element of democracy, adopted a recommendation on the respect and strengthening of the independence of the judiciary in 1996.23 the recommendation calls upon member states of the african union to meet certain minimum standards to guarantee the independence of the judiciary on the continent. these include sufficient resources, adequate working and living conditions for judges, and the recognition of universal principles of judicial independence. it is also worth noting that in europe, there are two documents that also seek to clarify the concept of judicial independence and set out its core elements viz, the recommendation no. r (94)12 on the independence, efficiency and role of judges, 1993,24 and the european charter on the status of judges, 1998.25 a good number of other guidelines and principles have been adopted by legal experts and judges from a variety of groups ranging from judges and bar associations to international jurist conferences. these efforts have been made either at an international level or at regional level.26 for international attempts, the following need to be noted: i) the syracuse principles of 1981.27 ii) the new delhi standards of 1982.28 22 these principles were adopted by the seventh united nations congress on the prevention of crime and the treatment of offenders held in milan. see http://www.unhchr.ch/html/menu3/b/h.comp50.htm 23 see african commission of human and peoples’ rights, 19th session, 03/2604/04/1996, ouagadougou, burkina faso. 24 adopted during the 518 meeting of the ministers’ deputies, council of europe, http://cm.coe.int/ta/rec/1994/94r12.htm 25 see, dac/doj (98) 23, 07/08 – 10/1998, strasbourg, council of europe. 26 see, violaine autheman, op cit at p 5. 27 the syracuse draft principles on the independence of the judiciary was prepared by a committee of jurists and the international commission of jurists at syracuse, sicily on 25-29 may 1981. http://www.unhchr.ch/html/menu3/b/h.comp50.htm http://cm.coe.int/ta/rec/1994/94r12.htm the denning law journal 27 iii) the montreal universal declaration on the independence of justice of 1983.29 iv) the universal charter of the judge of 1999. 30 v) the bangalore principles of judicial conduct of 2002.31 for regional efforts, there is in asia, the tokyo principles of 198232 and the beijing principles of 1995.33 in europe, there is the judges’ charter in europe of 1993,34 in latin america, there is the caracas declaration of 199835 and in the middle east, there is the beirut declaration of 1999.36 28 see, article 78(2), namibian constitution of 1990, http://www.oefre.unibe.ch/law/icl/was00000_.html all subsequent references to the namibian constitution should be understood as referring to this constitution. 29 the montreal universal declaration on the independence of justice was adopted during the 1983 world conference on the independence of justice http://66.249.93.104/search?q=cache:tvdxjq6criwj:www.ifes.org/searchable/ifes_sit e/pdf/rule_of_law/rol_tool_kit/whitepaper_1_final.pdf+montreal+universal+de claration+on+the+independence+of+justice&hl=en 30 see, the universal charter of the judge was adopted in 1999 by the international association of judges, which brings together national association of judges from around the world. http://www.iaj-uim.org/eng/07.html 31 the bangalore principles of judicial conduct was adopted by the judicial group on strengthening judicial integrity as revised at the round table meeting of chief justices held at the hague, netherlands in 2002. 32 the statement of principles of the independence of the judiciary in the lawasia region, 1982 was adopted in tokyo, japan by lawasia human rights standing committee. 33 the statement of principles of the independence of the judiciary in the lawasia region, was adopted in beijing in 1995 during a conference of chief justices of asia and the pacific region. 34 the judges’ charter in europe was adopted in 1993 by the european association of judges. 35 the caracas declaration was adopted during the ibero-american summit of presidents of supreme justice tribunals and courts, in caracas, venezuela in 1998. 36 the recommendations of the first arab conference on justice, was adopted during a conference on the judiciary in the arab region and the challenges in the 21st century in beirut, lebanon. http://www.oefre.unibe.ch/law/icl/was00000_.html http://66.249.93.104/search?q=cache:tvdxjq6criwj:www.ifes.org/searchable/ifes_site/pdf/rule_of_law/rol_tool_kit/whitepaper_1_final.pdf+montreal+universal+declaration+on+the+independence+of+justice&hl=en http://66.249.93.104/search?q=cache:tvdxjq6criwj:www.ifes.org/searchable/ifes_site/pdf/rule_of_law/rol_tool_kit/whitepaper_1_final.pdf+montreal+universal+declaration+on+the+independence+of+justice&hl=en http://66.249.93.104/search?q=cache:tvdxjq6criwj:www.ifes.org/searchable/ifes_site/pdf/rule_of_law/rol_tool_kit/whitepaper_1_final.pdf+montreal+universal+declaration+on+the+independence+of+justice&hl=en http://www.iaj-uim.org/eng/07.html the denning law journal 28 from these diverse declarations and statements, the core elements of judicial independence that seem to be internationally recognised can be summarised as follows: i) institutional arrangements for judicial autonomy; ii) financial arrangements for judicial autonomy; iii) arrangements for the security of the judicial office; iv) adequate remuneration of judicial officers; v) transparent mechanism for judicial appointments; and vi) judicial accountability.37 post 1990 african constitutional approaches to judicial independence it is now necessary to see to what extent the above core elements of judicial independence that are now universally recognised are reflected in some of the post-1990 african constitutions. it is worthwhile pointing out that it is the combined effect of these elements taken as a whole which may provide a basis for judging whether or not, the prospects for judicial independence in any given country are good. thus, the absence of one element may be sufficiently serious to compromise the chances of the judiciary operating independently. however, the constitutional regime type, whether it is the westminster, gaullist or some hybrid must always be borne in mind because this serves to explain the variations in approaches. institutional arrangements for judicial autonomy the principle of judicial autonomy is considered as a cornerstone of judicial independence and must ideally be enshrined in the constitution or some other laws of the country. it encompasses a number of important rules. these 37 these are fully discussed by luu tien dung, “judicial independence in transitional countries,” http://www.undporg/oslocentre/dvcsjuly03/dungtienluu-v2.pdf http://www.undp.org/oslocentre/dvcsjuly03/dungtienluu-v2.pdf the denning law journal 29 include the rule that judges must be impartial and free to decide cases on the basis of the facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, and threats, direct or indirect from any quarters or for any reasons. it also requires the judiciary to have jurisdiction over all issues of a judicial nature and the exclusive authority to determine whether or not, an issue submitted for its decision is within its competence as defined by law.38 autonomy also requires that the judiciary should be seen to be independent of any undue external influences such as pressure from the legislature, executive, political parties, and the legal profession as well as internal pressure from horizontal and vertical bosses. impartiality requires that in acting, judges should be influenced by the law and their conscience only. judicial autonomy is recognised and protected in different ways by the different african constitutions. the 1996 south african constitution39 deals with this in fairly unambiguous and elaborate terms in section 165, which states: 1. “the judicial authority of the republic is vested in the courts. 2. the courts are independent and subject only to the constitution and the law, which they must apply impartially and without fear, favour or prejudice. 3. no person or organ of state may interfere with the functioning of the courts. 4. organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts. 5. an order or decision issued by a court binds all persons to whom and organs of state to which it applies.” a similar approach is adopted in article 78 of the namibian constitution, which also states that the courts are independent and subject only to the 38 see, principles 1-3 of the united nations basic principles on the independence of the judiciary, op cit. 39 see act 108 of 1996, and its amendments. all references to the south african constitution, should be understood as referring to this constitution. the denning law journal 30 constitution and the law.40 it also states that “no member of the cabinet or the legislature or any other person shall interfere with judges or judicial officers in the exercise of their judicial functions,” and imposes a duty on all organs of the state to accord such assistance as the courts may require to protect their independence, dignity and effectiveness.41 the decisions of courts are declared to be binding on all unless “contradicted by an act of parliament lawfully enacted.”42 the ghanaian constitution also contains elaborate provisions recognising and protecting the impartiality and autonomy of the judiciary in terms which are very similar to those in the namibian constitution.43 with perhaps less details, but also designed to ensure judicial autonomy, are a number of provisions in the angolan44 and mozambican45 constitutions. the approach adopted in the above constitutions, which differs from that of other anglophone african countries mainly in the details, is in sharp contrast with that adopted in the constitutions of francophone african countries. a typical example of the latter is the 1996 amended cameroon constitution of 1972.46 judicial autonomy is treated in the same ambivalent and contradictory manner that the french fifth republic constitution treats it. article 37(2) of the cameroon constitution states that “the judicial power shall be independent of the executive and legislative powers,” and that judges in discharging their duties shall be governed by the law and their conscience. any expectations that this recognises and protects judicial impartiality and autonomy are quickly dispelled by article 37(3), which states that the “president of the republic shall 40 see, article 78(2), namibian constitution of 1990, http://www.oefre.unibe.ch/law/icl/was00000_.html all subsequent references to the namibian constitution should be understood as referring to this constitution. 41 see, article 78(3), namibian constitution ibid. 42 see, article 81 ibid. 43 see, articles 125 (3) and (5) and 127 (1) and (2) of the ghanaian constitution of 1992, pn.d.c.l. 282. all subsequent references to the ghanaian constitution should be taken as referring to this constitution. 44 see, articles 120, 121 and 123 of the angolan constitution of 1992, http://www.oefre.unibe.ch/law/icl/ao00000_.html, all subsequent references to the angolan constitution should be taken as references to this constitution. 45 see, articles 161, 162 and 164 of the mozambican constitution of 1990, http://confinder.richmond.edu/moz.htm , all subsequent references to the mozambican constitution, should be taken as references to this constitution. 46 see, law no. 06 of 18 january 1996 to amend the constitution of 2 june 1972. all subsequent references to the cameroon constitution should be taken as referring to this constitution. http://www.oefre.unibe.ch/law/icl/was00000_.html http://www.oefre.unibe.ch/law/icl/ao00000_.html http://confinder.richmond.edu/moz.htm the denning law journal 31 guarantee the independence of judicial power.” this clearly indicates that rather than being co-equals, the judiciary is subordinate to the executive, which therefore raises doubts about its ability to operate without undue executive interference and pressure. this approach has been adopted in the constitutions of most other francophone african countries.47 financial arrangements for judicial autonomy without adequate resources, it is unlikely that a judiciary can function with any degree of independence and impartiality. the united nations basic principles on the independence of the judiciary make it a duty on each member state to provide adequate resources to enable the judiciary to properly perform its functions.48 this raises mainly the issue of the process of preparing and decision-making on the budget of the judiciary. as nicholson points out, “the preparation of judicial estimates by anyone not acting under the direction of the judiciary and the exercise of control by the government over the way in which the courts expend the funds granted to them necessarily poses a potential threat to judicial independence.”49 there are two main approaches that appear to have emerged in preparing judicial budget estimations. the first approach is for the executive to prepare the budget in collaboration with the judiciary. the second approach, which has been followed in a number of african countries, is for the judiciary to prepare the budget and submit it to the executive who may amend it before presenting it to parliament.50 this appears to suggest that the judiciary is beginning to gain some influence and command over the judicial budget allocation process. one of the few countries that say something in its constitution about the role of the judiciary in the budget allocation process is uganda. however, all it states in article 128(6) of the constitution is that the judiciary “shall be selfaccounting and may deal directly with the ministry of finance in relation to its 47 see, articles 89 (1) and (2) and 90 of the mauritanian constitution of 1991, http://www.oefre.unibe.ch/law/icl/mr00000_.html all subsequent references to the mauritanian 48 op cit, in article 7. 49 in, “judicial independence and accountability: can they co-exist?” australia law journal (1993), at p 404. 50 see, luu tien dung, op cit at p17. http://www.oefre.unibe.ch/law/icl/mr00000_.html the denning law journal 32 finances.”51 the absence of more precise constitutional provisions, such as exists in some latin american countries, such as costa rica, where the budget for the judiciary is guaranteed as a percentage of the national budget in the constitution, has often made it easy for the judicial budget of african countries to be reduced for purely political reasons.52 arrangements for the security of the judicial office the problem of the security of judicial office raises three important issues viz, the tenure of judicial office, the grounds for removal and the process for the removal or discipline of judicial officers. these critical issues need to be clearly addressed, preferably in the constitution, or in some other law of the country. the tenure of judicial office security of tenure substantially contributes to insulating judges from external pressure and has rightly been regarded as a sine qua non of judicial independence. judicial tenures that are too short or mandatory retirement ages at relatively young age could undermine the prestige as well as the institutional independence of the judiciary. an appointment for life or for such fixed period that does not endanger the judges’ independence is desirable. african constitutional approaches vary within two main systems; a career judiciary and non-career judiciary. francophone african countries have adopted the former, which involves the selection, appointment and promotion of judges from within a judicial or civil service career system. this therefore gives judicial officers life tenure. most anglophone african countries have a non-career system which involves the selection, appointment and promotion of judges by the executive or legislature or a combination of both, with or without the involvement of some stakeholders, such as the law society. there are however wide variations which sometimes depend on the duration of the appointment and the level of the court in the hierarchy of courts. most judges are appointed to serve until 60 51 see ugandan constitution of 1995, http://www.parliament/go.ug/constitute.htm , all subsequent references to the ugandan constitution should be taken as references to this constitution. 52 see, luu tien dung, op cit, at p 18. http://www.parliament/go.ug/constitute.htm the denning law journal 33 or 65 years, but there is always a provision that this could be extended by five years.53 disciplinary and removal grounds as peter russell aptly puts it, “judicial independence is less at risk at the front end of the personnel process – the appointing end – if there is a strong system of judicial tenure at the back end – the removal end.”54 arbitrary and opaque procedures for disciplining and removing judges could easily undermine the independence of the courts. whilst judges and other judicial personnel, like every other public officer, should be subject to disciplinary measures such as suspension or removal, the grounds that have generally been recognised as legitimate are reasons of incapacity or behaviour that renders them unfit to discharge their duties.55 removal should be made difficult in order to prevent any abuses, so both the concept of incapacity and misbehaviour should be interpreted in a strict manner. incapacity should be restricted to cases of physical or mental constraints that make judges incapable of carrying out adjudication, whilst misbehaviour should only refer to crimes or offences or gross and repeated acts of neglect that makes the judge unfit to discharge his responsibilities. indirect sanctions, such as transfers to remote parts of the country or secondment to an obscure position, have regularly been used as a hidden tool to punish judges. the only way that this can be checked is to state in the law that 53 for example, in article 291(2) of the nigerian constitution of 1999, states that ordinary judges should retire at 60 but the term could be extended to allow them retire at 65 years, whilst the retirement age of the supreme court judges is 65 but this could be extended to allow them hold office until they are 70, http://www.nigerialaw.org/constitutionofthefederalrepublicofnigeria.htm , all subsequent references to the nigerian constitution should be taken as references to this constitution. in the ugandan constitution, article 144(1)(a) whilst providing that judicial officers should vacate their offices at 60, allows the chief justice, deputy chief justice and justices of the supreme court to hold office until 70 years. in the south african constitution, the only term of office that is defined is that of judges of the constitutional court. according to section 176, on appointment, they hold office for a non-renewable term of 12 years but must retire at the age of 70. 54 op cit at p16. 55 see, principle 18 of the united nations basic principles on the independence of the judiciary. http://www.nigeria-law.org/constitutionofthefederalrepublicofnigeria.htm http://www.nigeria-law.org/constitutionofthefederalrepublicofnigeria.htm the denning law journal 34 judges shall not be transferred or seconded to another position or court, without their consent or through a procedure that is fair and transparent. the issue of disciplining and removing judges is particularly important at this critical stage of the democratic transition in africa, where judges play an important role in election disputes. the standards and grounds for disciplining and removing judges vary considerably. even then, it is still possible to note that most anglophone african constitutions often contain detailed provisions quite similar to those in the united nations basic principles on the independence of the judiciary.56 one example will suffice. in the ghanaian constitution, article 146(1) states that the judges of the superior courts or chairpersons of regional tribunals shall not be removed from office except for “stated misbehaviour or incompetence or on ground of inability to perform the functions of [their] …office arising from infirmity of body or mind.”57 there are similar provisions in the botswana, namibian, nigerian, south african and ugandan constitutions.58 by way of contrast, the constitutions in most francophone and luxophone african countries merely mention the possibility of disciplinary measures being taken against judges and other judicial officers but reserves the details on this for subsequent laws.59 the difficulty with such an approach is that there is no guarantee that such laws will conform to the minimum standards that ensure transparency and prevent any unwarranted interference with the judiciary. 56 see principles 18-20, loc. cit 57 the situation with respect to the removal of other judicial officers is covered by article 151(1). 58 see, section 97(2) of the botswana constitution of 1966, as amended in 2002; article 84(2) of the namibian constitution; section 292(1) of the nigerian constitution; section 177(1) of the south african constitution and article 144(1) of the ugandan constitution. 59 for francophone countries, see article 37(3) of the cameroon constitution; article 82 of the malian constitution; article 87 of the moroccan constitution; and article 70 of the gabonese constitution of 1994, http://www.bdpgabon.org/gouvernement/constitution.shtml , all subsequent references to the gabonese constitution, should be taken as referring to this constitution. for luxophone countries, see article 128 of the angolan constitution. http://www.bdpgabon.org/gouvernement/constitution.shtml the denning law journal 35 due process of removal and discipline there is now consensus that the best way to prevent the misuse of disciplinary measures against the judiciary is to clearly lay down in advance the procedure to be followed and subject this to an independent judicial review.60 the disciplinary process must be transparent, fair, and accessible and include the procedure for filing complaints, carrying out investigations and decisionmaking. judicial officers have a right to a fair hearing before a decision-making body, which should be independent, especially from the executive. it is particularly important that such a decision-making body is not dominated by the executive or appointees of the executive and it should have representatives from non-judicial institutions to ensure that the judiciary is not totally isolated from the general public. representatives of judges from all levels of the judiciary are also needed to ensure that the process is not controlled or dominated only by senior judges. a close analysis of the constitutional provisions dealing with the due process of removal and discipline again shows a remarkable difference in the practice between francophone and anglophone african states. in the former, the provisions are generally brief, and do not provide any clear and transparent procedures. the best example of a fairly transparent system is provided for by the south african constitution. section 177(1) states that: 1. a judge may be removed from office only if: (a) the judicial service commission finds that the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct; and (b) the national assembly calls for that judge to be removed by a resolution adopted with a supporting vote of at least two thirds of its members. 2. the president must remove a judge from office upon adoption of a resolution calling for that judge to be removed. 60 see, principle 20, united nations basic principles on the independence of the judiciary, op cit the denning law journal 36 3. the president, on the advice of the judicial service commission, may suspend a judge who is the subject of a procedure in terms of subsection (1).” what is particularly significant and novel is the composition of the judicial service commission.61 first, its meetings are presided over by the chief justice. second, although it is composed of 24 members, the executive is directly represented by one member, the cabinet member responsible for the administration of justice or his representative.62 the president as head of the national executive may designate four persons, but he must in doing so, consult the leaders of all the parties in the national assembly. third, the constitution makes it clear that the decisions of the commission are to be arrived at by a majority of its members, to ensure that an influential minority can not impose its will on the majority. this pattern is replicated in the constitutions of other anglophone countries such as ghana, namibia and uganda.63 meanwhile, in most francophone african constitutions, the president as “guarantor of the independence” of the independence decides all disciplinary actions to be taken against judges and other judicial officers. in doing so, these constitutions state that, the president will be “assisted” by the higher judicial council, or a similar body, which is only required to “give him its opinion.” the details on the organisation and functioning of these “advisory bodies” are usually left to be defined by subsequent laws. in practice, these bodies are mainly composed of presidential appointees and the meetings are presided over 61 see, section 178 of the south african constitution. 62 see, section 178(1)(d). 63 see, articles 146-148 of the ghanaian constitution; articles 84-85 of the namibian constitution; and articles 144-147, 151-154 of the ugandan constitution. a slightly different approach is provided for in the botswana constitution, where sections 97(3) and 101(3) provide that if the president considers that the question of removing a judge ought to be investigated, he should appoint a tribunal to investigate the matter and advise him as to whether or not the judge ought to be removed. although not entirely satisfactory because the president alone is given the powers not only to decide whether or not there ought to be an investigation, but also to determine the composition of the tribunal to conduct the enquiry, the main safeguard against any abuse is sections 97(2) and 101(2) of the constitution, which lay down a clear and objective criteria for any removal. the denning law journal 37 by the president himself, with his minister of justice acting as vice chairman.64 adequate remuneration of judicial officers the independence of judges and other judicial officers can be seriously put in jeopardy if the remuneration they receive is so inadequate that they are readily open to bribery or compromising business overtures. such remuneration needs to be secured by law to prevent them from being arbitrarily decreased, unless this is done as part of an overall economic measure every worker. generally, only the constitutions of anglophone african countries address the issue of judicial remuneration. these often provide that judicial salaries, including allowances, gratuities and pensions are to be charged on the consolidated fund.65 some even go further to state that the salaries and other financial benefits shall not be varied to the disadvantage of judicial officers.66 although this means nothing more than that judicial benefits should not be varied in an arbitrary and discriminatory manner, the idea behind protecting their benefits is to ensure that they maintain a minimally respectable standard of living commensurate to their level of responsibilities and status. transparent mechanism for judicial appointments the mechanism for appointing judges plays a very important role in ensuring a properly functioning and independent judiciary. the emphasis is on an appointment process that is based on an objective and transparent criteria that relies on factors such as qualification, competence and integrity.67 there are three main systems of appointments viz, election by the people, appointment by elected politicians and appointment into a professional career judiciary. there are however various variants of used in africa. 64 see for example, article 37 (3) of the cameroon constitution; and articles 70-71 of the gabonese constitution. 65 see for example, section 122 of the botswana constitution, article 127(4) and(5) of the ghanaian constitution, and section 176(3) of the south african constitution. 66 see for example, article 128(5) and (6) of the ugandan constitution. 67 see, principles 11-12 of the beijing statements of the independence of the judiciary, op cit; article 9 of the universal charter of the judge op cit; and principle 10 of the united nations basic principles on the independence of the judiciary, op cit. the denning law journal 38 most anglophone african countries follow the common law practice that requires that judicial candidates should have practised for a specified minimum number of years as advocates, barristers or attorneys before they qualify to be considered for appointment as judges.68 the civil law professional career path approach adopted by most francophone african countries means that potential candidates for judicial appointments, have to write and pass a competitive examination to go into a school of magistracy where they are trained in judicial skills for a period usually lasting two years. upon entry into such an institution, the candidate is immediately integrated into the civil service and on graduation may be appointed to serve either as a judge or state prosecutor. generally, the constitutions of most anglophone states clearly spell out in some detail the criteria as well as lay down a transparent procedure for appointments. in both anglophone and francophone african constitutions, the actual appointment is made by the executive. this is however based on a “recommendation” by a judicial service commission or similar body, in the case of the former, or the “opinion” of a higher judicial council or similar body, in the case of the latter. a significant difference is that the executive dominates the appointment process in the higher judicial councils in francophone africa but not in the judicial service commissions in anglophone africa. perhaps one of the most transparent appointment procedures is provided in the south african constitution. it underscores the need for the judiciary to reflect the racial and gender composition of the south african society.69 section 174(3) provides that the president as head of the executive, appoints the president and deputy president of the constitutional court, after consulting the judicial service commission and the leaders of parties represented in the national assembly, but appoints the chief justice and deputy chief justice after consulting the judicial service commission. the other judges of the constitutional court are also appointed by the president after consultations with the leaders of parties represented in the national assembly following an elaborate procedure in which he is required to select the judges from a list of nominees submitted to him by the judicial service commission.70 the president appoints judges of all the other courts on the advice of the judicial 68 see for example, article 128(4) of the ghanaian constitution and article 143(1) of the ugandan constitution. 69 see, section 174 (2). 70 see, section 174 (4). the denning law journal 39 service commission.71 as we noted earlier, the judicial service commission is constituted in such a manner that very few of its 24 members are appointed by the executive. this shows how a carefully structured mechanism for judicial appointment can combine transparency and pluralism in a manner that may totally preclude all the negative aspects of executive interference, but could certainly limit the possibilities of such interference. in nigeria, the appointments of federal judges is also made by the president, as head of the federal executive, acting on the recommendations of the national judicial council but this is subject to confirmation by the senate.72 for state judges, the appointments are made by the governors, in their capacity as head of the state executives, acting on the recommendations of the national judicial council and subject to confirmation by the house of assembly of the state.73 in botswana, judges are appointed by the president acting on the advice of the judicial service commission,74 but rather oddly, in appointing the chief justice, who is head of the judiciary and the president of the court of appeal, the highest court in the country, he acts alone.75 the constitution of a typical francophone african state provides that judges are to be appointed by the president of the republic, “assisted” in this task by a higher judicial council or similar body, which as noted above is dominated by executive appointees and only plays the role of “giving” the president its “opinion.”76 a marked departure from the two patterns discussed so far, is that found in the mozambican and angolan constitutions. the mozambican constitution provides for both professional and elected judges. the former are to be appointed by the president after consultations with the supreme council of the judiciary,77 whilst the latter are to be elected by parliament, the assembly of the republic.78 an indication that the elected judges need not be legally trained is given by article 171(1) of the constitution, which states that only the professional judges may decide “matters of law,” and the role of the 71 see, section 174 (6). 72 see, sections 231-269 of the nigerian constitution. 73 see, sections 270-274 ibid. 74 see, sections 96(2) and (3) and 100(2) of the botswana constitution as amended in 2002. 75 see, sections 96(1) and 100(1) ibid. 76 see for example, article 37(3) of the cameroon constitution, article 82 of the malian constitution and article 84 of the moroccan constitution. 77 see, article 170(1) of the mozambican constitution. 78 see, article 170(4) ibid. the denning law journal 40 elected judges is reserved to participating in pre-trial hearings. something very similar is provided for in article 122 of the angolan constitution, which provides for professional judges as well as “citizens assistants.” the major drawback of some of these constitutional provisions that allow too much leeway to executives that are prone to interference is that the independence and impartiality of the judiciary is put at great risk. judicial accountability the growth of judicial powers in liberal democracies has been accompanied by demands for new forms of judicial accountability.79 in africa, the general perception of a high rate of judicial corruption has made the issue of judicial accountability is very important.80 judicial accountability deals with the extent to which, judges whilst being free to decide cases fairly and impartially, can still be made accountable for any serious misconduct. judicial insulation, which goes with judicial independence, does not mean that judges should be left entirely to their own devices to exploit their positions for private gain. in fact, judicial accountability goes hand in hand with judicial independence but a careful balance must be worked out between the two so that one does not undermine the other. it has been argued that the more independent judiciaries are, the more accountability should be provided to prevent any abuses, provided that the degree of accountability does not endanger their independence.81 the key to judicial accountability appears to be transparency. this requires an open and efficient process for dealing with important issues such as discipline, suspension, removal and demotion of judges. as we have seen, some of the processes provided by many constitutions are so executivedominated that misconduct could either be sanctioned or covered up which ever of this best suits the executive at a particular moment. in those countries where the selection and appointment process as well as the process for dealing with judicial misconduct is transparent, such as is the case under the south african constitution, the judiciary is more likely to employ competent, independent and impartial judges. 79 see, peter h. russell, op cit at p 19. 80 see, luu tien dung, op cit at p 28. 81 ibid at p 27. the denning law journal 41 rationale for judicial independence several studies have brought out a number of arguments in support of the multiple benefits that come from the existence of an independent judiciary. although some empirical evidence from some of these studies have suggested that the results are mixed,82 the symbolic significance of an independent judiciary, especially for transitional regimes like those in africa cannot be gainsaid. the various arguments can be subsumed into one main pertinent point which is that, the constitutionalisation of a credible framework that ensures the independence of the judiciary signifies a clear pre-commitment to certain minimum standards of civilised behaviour for the respect for constitutional norms and the rule of law in a way that will likely promote democratic consolidation. for a continent almost trapped in political instability, economic decline and a deteriorating social order, the prospects of an independent judiciary may not only be reflective of a strong commitment to democracy but may actually be constitutive of it. it is not enough to have constitutional rules that for the first time open the space for political competition. allowing freedom of expression, freedom of association, free elections and other similar paraphernalia of democracy count for little if there are no guarantees that these rules will be respected and non-compliance sanctioned. only a genuinely independent judiciary can ensure that the rules of political competition are respected and that a culture of legality that ensures respect for the rule of law emerges. constitutionalising government through the neutral arbitration of independent judges also provides for the predictability because individuals will know in advance how they stand with respect to the government and how far the latter can go in interfering with their life and activities. another positive benefit that may result from an enhanced prospect of an independent judiciary is the possibility of accountability, certainty and predictability in the operation and application of the law. this will also ensure the recognition and enforcement of the various forms of contractual and property rights which could play a crucial role in attracting both domestic and foreign investment desperately needed in many african countries to revive their collapsed economies. it will also prevent the government from arbitrarily 82 see, the asian judicial independence project, op cit, 15-18 and matthew stephenson, “judicial independence: what it is, how it can be measured, why it occurs.” http://www1.worldbank.org/publicsector/legal/judicialindependence.htm http://www1.worldbank.org/publicsector/legal/judicialindependence.htm the denning law journal 42 changing laws or policies at it suit its convenience. consistency and predictability, especially in the operation and enforcement of the rules on property rights reduces the risks of political opportunism and expediency and provides an incentive for investors. many crucial matters that determine the decision whether or not to invest can thus be placed beyond the whims and caprices of transient or popular leaders and ruling majorities. if one of the greatest injuries of africa’s long years of totalitarianism can be said to be the uncertainty that this breed, it can be argued that the institutionalisation of judicial independence, within a framework that offers good prospects for constitutionalism reduces and controls the potentially enormous powers of the state and ruling parties to act arbitrarily. the existence of an independent judiciary signals a state’s commitment to constitutionalism, which includes not only respect for the rule of law but also respect for human rights. conclusion the constitutional reforms of the 1990s provided many african governments with an opportunity to adopt many of the fundamental elements that are now considered internationally as crucial in establishing a truly independent judiciary. in spite of the apparent agreement on the basic elements, the concept of judicial independence remains fluid and relative, and this explains the diverse approaches that exist. the analysis of the approach adopted in a number of african constitutions whilst reflecting the continuous influence of the inherited constitutional models shows that there has been considerable progress in certain countries and very little change in others. a number of important conclusions can be drawn from this analysis. the focus of any serious effort to secure the independence of the judiciary is considerably enhanced by entrenching detailed provisions on what are now accepted as its core principles in the constitution rather than in an ordinary law. this must be so, notwithstanding the well documented fact that britain, israel and new zealand are operating efficiently with functioning independent judiciaries without any entrenched constitutional provisions. the fragility of africa’s democratic transitions and the lack of an ethos, culture or history of constitutionalism necessitate greater clarity. little scope should be allowed for any executive discretion in such matters. constitutionalising judicial independence in this way is certainly no guarantee that there will be no the denning law journal 43 unwarranted interference by the executive with the judiciary but it will certainly increase the odds against such interference. some countries or group of countries have gone further in enhancing the prospects of judicial independence than others. the analysis shows that there is greater scope for interference in francophone and luxophone african countries, especially because many countries in the former category, have stuck to the fifth french republic constitutional model inherited during the colonial period. meanwhile, there appears to have been more serious efforts to modernise the westminster model in most anglophone countries. however, the south african approach, appears to offer the best prospects for judicial independence and can serve as a model for other african countries. most of the post 1990 constitutional changes clearly suggest a greater political awareness and sensitivity to the need for greater openness, accountability, participation and representation. studies have shown that independent courts have played a major role in the widespread acceptance of governance in many of the advanced democracies.83 as african constitutional engineers grapple with the difficult task of crafting constitutions that will meet the needs and aspirations of the people, there is need not only to recognise the role and standards of judicial independence that have emerged after years of serious studies at both international and regional levels but also the fact it is time to limit the excessive and sometimes blind reliance on inherited colonial stereotypes. 83 see, herbert jacob, in herbert jacob, erhard blankenburg et al (eds), courts, law, and politics in comparative perspective. new haven, yale university press (1996), pp 389-390. introduction the meaning of judicial independence the challenges to a comparative assessment of judicial independence the basic elements for gauging the prospects for judicial independence diverse approaches to judicial independence basic elements of judicial independence post 1990 african constitutional approaches to judicial independence institutional arrangements for judicial autonomy financial arrangements for judicial autonomy arrangements for the security of the judicial office the tenure of judicial office disciplinary and removal grounds due process of removal and discipline adequate remuneration of judicial officers transparent mechanism for judicial appointments judicial accountability rationale for judicial independence conclusion judicial review and church courts in the law of scotland frank cranmer· introduction until now, it has been a long-settled principle of scots law that there is one church recognised by law the church of scotland with proper courts in the full legal sense of that tenn, and a series of private ecclesiastical organisations with tribunals of no particular legal standing. 1 therefore: "the courts of the church of scotland are legally established courts of the realm whereas courts of other churches have jurisdiction only so far as conferred by their own constitutions and the adherence of their members. no claim for damages lies in the court of session against a church court for a judgment in a proper case of discipline duly brought before it. the civil courts are bound to assist the church courts in making their decrees effectual, but cannot review their decisions in matters falling within their jurisdiction."2 similarly, because they are a fully-recognised branch of the system of courts, they share the powers and privileges of the civil courts. the general assembly as the supreme court shares with the inner house of the court of session the power to reduce its own decrees and, like tlle court of session and the high • i would like to express my thanks to francis coleman for reading this article in draft and giving me the benefit of his views. the conclusions, however, are my own. 1 for the history of establishment in scotland, see c.r.munro, "does scotland have an established church?" (1997) 4 journal of ecclesiastical law 639. 2 d.m.walker, the scottish legal system ( (jh ed., ] 992, w.green) at 311-2. see also munro, ibid at 645. 49 the denning law journal court of justiciary, exercises the nobile officium.3 the proceedings of the courts of the kirk also enjoy considerable protection from actions for defamation. "when the general assembly exercises judicial functions in relation to matters properly brought before that court, persons engaged in the proceedings are probably protected by absolute privilege ... it is settled law that no court of the church of scotland may be sued in respect of any judgment or sentence pronounced in any cause duly brought before it, regularly conducted and within its jurisdiction."4 it should be noted, however, that this immunity extends only to the courts of the kirk when they are acting in a judicial capacity. andrew herron suggests that, since much of their business is non-judicial, before any statement is made to which exception might be taken, the members of any church court would be wise to consider carefully whether such a statement might be factually inaccurate or construed as malicious.s all this is well-tmderstood. however, there has been one area in which the position of church courts of all denominations was not entirely clear: that of judicial review. the earlier cases the readiness of the court of session to distinguish between the actings of the courts of the kirk and the decisions of the tribunals of nonconformist churches was already becoming apparent from a series of decided cases which predate the church of scotland act 1921. in lockhart v. presbytery of deer, lord president boyle stated that the courts of the kirk possessed exclusive jurisdiction in ecclesiastical causes and that the court of session would not normally interfere with their decisions: 3 an equitable power to supply a remedy where the existing law is silent; it is not, however, a power to set aside the existing law. see a.herron, the law and practice of the kirk (1995, chapter house, edinburgh) at 276; walker, op cit, at 193. 4 c.k.davidson, "church of scotland" 3 stair memorial encyclopaedia para. 154 7, citing sturrock v. grieg (1849) lid. 1220 & wight v. presbytery of dunkeld (1870) 8 m. 921. sherron, supra.n.3 at 277. so judicial review and church courts "we have as little right to interfere with the procedure of the church courts in matters of ecclesiastical discipline as we have to interfere with the proceedings of the court of justiciary in a criminal question. "6 in wight v. presbytery of dunkeld the court of session agreed that the proceedings in the presbytery of which the pursuer complained were irregular, contrary to the laws and practice of the church, and altogether nul!.7 nevertheless, lord justice clerk moncrieff refused to set them aside: "if ... this were a case in which we were called upon to review the proceedings of an inferior court, i should have thought a strong case had been made for our interference. but whatever inconsiderate dicta to that effect may have been thrown out, that is not the law of scotland. the jurisdiction of the church courts, as recognised judicatories of this realm, rests on a similar statutory foundation to that under which we administer justice within these walls ...within their spiritual province the church courts are as supreme as we are within the civil; and as this is a matter relating to the discipline of the church, and solely within the cognisance of the church courts, i think we have no power whatever to interfere."g on the other hand, the attitude of the court of session to the tribunals of nonconformist churches has been much more equivocal. even though such tribunals are unofficial, in auchinloss v. black, lord justice clerk braxfield nevertheless refused in a case involving the secession church "to review the proceedings of the associate congregation, commonly called burghers, when sentences are pronounced by them in their ecclesiastical character.'>9 not long afterwards, however, in drummond v. farquar the designation of the pursuer, drummond, as "one of the bishops or senior clergymen of the superior order of the episcopal communion in scotland" was struck out as "not 6 (1851) 13 d. 1296 at 1299. 7 supra.n.4 at 925 per lord cowan. 8 ibid. 9 hume, decisions, 6111 march, 1793. 51 the denning law journal recognised by the court",10 while in dunbar v. skinner'] lord president boyle ruled that "there exists in scotland no episcopal church whatever except as a distinct sect, fully recognised and protected under the toleration act.,,12 in mathers v. laurie it was held that a free church kirk session minute could not be adduced as conclusive evidence of itself, since the tribunal concerned was not a court of law; parole evidence had to be led to prove the minute. 13 notwithstanding this distinction, however, the court of session has in practice been reluctant to interfere with the decisions of nonconfonnist tribunals, seemingly on the grounds that such a tribunal is the duly-constituted regulatory and disciplinary body of a voluntary association and that the members, by virtue of their membership, enter into a contractual obligation to submit to its decisions.]4 there is therefore a line of decided cases which suggest that the court of session will normally intervene only when a civil, rather than an ecclesiastical, wrong has been committed. in forbes v. eden, the rector of burntisland brought an act against the primus and others of the general synod of the episcopal church, averring that, in adopting a code of canon law in 1862 which inter alia substituted the english communion rite of 1662 for the scots rite of 1764, synod had acted ultra vires.ls the pursuer concluded for reduction, i.e. annulment, of the new canons; however, the pursuer's pleas were dismissed by the lord ordinary. on reclaimer, i.e. appeal to the inner house, the pursuer's arguments were again rejected by the inner house on the grounds of irrelevance. lord cowan went further in his obiter: "i cannot but regard it as an entire novelty to ask courts of law to determine whether the ruling judicatory of a voluntary church acted within its powers in matters so purely and exclusively relating to the 10 faculty collection, 6th.july, 1809 see f.lyall, of presbyters and kings (1980, aberdeen university press) at 88. 11 (1849) 11 d. 945. 12 i.e the scottish episcopalians act 1711. 13 (1849) 12 d. 433. 14osborne v. southern reformed presbytery (1831) outer house (unreported) see lyall, supra.n.lo at 91. 15(1865)4m.143. 52 judicial review and church courts government of the body as a church, its doctrines and discipline ... when the ecclesiastical governing body has recognised changes either in doctrinal matters, or in the rights [sic] and ceremonies of the church, dissentient laymen may leave its communion. their remedy cannot be to bring the resolutions of the church judicatory into a court oflaw, as a court of review. some civil wrong justifying a demand for redress, or some patrimonial injury entitling the party to claim damages, must be alleged and instructed, ere the civil court entertain and adjudicate in such cases. this is the principle which pervades the whole of the cases of this class. "16 equally, in skerret v. oliver, the first division refused to reinstate a licentiate of the united presbyterian church who had been suspended and deprived by the d.p. synod "for having, under certain circmnstances, met and walked with a young lady" on the grounds tllat "courts of law take no concern with the resolutions of voluntary associations except so far as they affect civil rights."l? an even narrower view was taken in mcdonald v. bums.18 five extern sisters of the colettine community of poor clares in edinburgh had been dismissed from their convent by the sacred congregation of religious in rome, but refused to leave. the trustees of the convent brought an action in the court of session for their removal from the convent. the defenders argued that they had been dismissed in contravention of the statute of their order regarding the dismissal of extern sisters, in that no specific charges had been made against them and that they had been given no opportunity to respond. the lord ordinary (robertson] having found for the pursuers, the defenders reclaimed. in granting an interlocutor, lord justice clerk aitchison made the following general statement of the rights of ecclesiastical bodies to regulate their own affairs without judicial interference: " ...thejimits ...are strictly defined, and should not be incautiously extended. where civil rights are concerned, appeal may be made to the courts of law for their protection, or for some form of redress, but the mere fact that a civil right is qijected by itselfforms no 16 ibid. at 163 [emphasis added]. 17 (1896) 3 s.l.t. 257 per lord robinson. it was a different world in those days. 18 1940 s.c.376. 53 the denning law journal just!{lcation for interference. for civil consequences may often resultfrom decisions q{ ecclesiastical courts in matters that lie properly within their own jurisdiction. "19 there the matter might have rested; but the difference between the attitude of the court of session towards the courts of the established church and the tribunals of other religious bodies in scotland has been highlighted most clearly by three recent cases: one involving the free presbyterian church and the others involving the kirk. in particular, the uncertainty over the degree to which the tribunals of dissenting churches are obliged to abide by the rules of natural justice appears finally to have been resolved.20 brentall v. free presbyterian church of scotland21 in brentall the facts were as follows.22 the reverend john brentall, together with the reverend moshe radcliff, presented an overture to his presbytery raising the question of whether a protest against a decision of the synod of the church might be necessary so that a person might exonerate his conscience. the overture was rejected by presbytery, and they took the matter to synod the supreme court of their church. at the synod of may, 1980 the overture was dismissed without discussion: mr.brentall and mr.radcliffthen entered a protest against the refusal of the synod "of a scriptural discussion anent protest," but stating that: "we hereby declare that by tllis protest we do in no way separate ourselves from the free presbyterian church of scotland or resign our respective charges or act contrary to our ordination vows or impugn the authority of this venerable court or call the integrity of this venerable court into question." 19 ibid. at 381 [emphasis added]. 20 for a discussion of the uncertainties, see g. w.patterson, "the law of scotland and the decisions of the ecclesiastical courts" (1986) juridical review 152. 21 1986 s.l.t. 470. 22 for the narrative background to the case, see j .macleod, no great mischief if you fall: the highland experience (1993, mainstream publishing, edinburgh). 54 judicial review and church courts it should be remembered that "protest" is a tenn of art in presbyterian church law. it was by protest that thomas chalmers, david welsh and their colleagues initiated the disruption in 1843, when they walked out of the general assembly of the kirk and founded the free church of scotland. moreover, it was by protest against what tlley saw as tile heretical stance of the free church declaratory act of 1892 towards liberty of opinion in the construction of the westminster confession, that donald macfarlane, donald macdonald and ti1eir colleagues separated themselves from the free church in 1893, and founded the free presbyterian church.23 the precise effect of a protest is therefore of enormous importance to the free presbyterian church; the official view is that unless macfarlane's protest in 1893 had immediately separated him and his colleagues from the free church of the declaratory act, then the historical link with the "pure" pre-declaratory act free church would have been broken at that point, and the claim of the free presbyterian church to be the one, true reformed church of scotland would thereby be invalidated.24 moreover, the protest question has been a matter of some controversy t1rroughout the history of the free presbyterian church. in 1944 roderick mackenzie expressed his disagreement with the synod view of protest and was thereby held to have separated himself from the church with the result that he founded the free presbyterian relief congregation.2s it was in 1944, therefore that the free presbyterian church synod published a statement on the nature of protest which included the assertions that: "a protest in itself does not necessarily put the protester out of the church; yet, a protest tabled and persisted in against the decision of the supreme court carmot be received; [but] ... a protest may and usually does involve the se(f-exclusion qf the person protesting from the supreme court of tile church." at the 1980 synod on the occasion in question, the clerk first asked messrs 23 it was by protest and deed of separation that those who left the free presbyterian church in 1989 in order to fonn the associated presbyterian churches separated themselves from the f.p.c.. 24 macleod, supra.n.22 at !o3. 25 see a. morrison, "protest question," in n.m.de s.cameron (ed.) dictionary of scottish church history and theology (1993, t.& t. clerk, edinburgh). 55 the denning law journal brentall and radcliff if they would change their protest to a dissent (which may be tendered simply to relieve the dissenter from any involvement in the decision of the court.)26when they refused to do so, the clerk pointed out that, in accordance with the 1944 statement, a protest against a decision of the supreme court could not be received. after deliberation, at part of which the complainers were not present, synod then determined to discipline them and, it being clear that they had not changed their position, they were suspended sine die. mr.brentall raised an action for the reduction of the resolutions to suspend him, with ancillary conclusions for interdict and reparation.27 there was no dispute between the parties as to the competence of the court of session to reduce as unlawful decisions of the synod of the free presbyterian church; however, the defenders argued that synod had found messrs brentall and radcliff guilty of contumacy and had therefore acted within its powers.28 the lord ordinary [dlmpark] dismissed the action. the pursuer reclaimed, arguing that, in acting as it did, synod had exceeded its own powers and had failed to observe the rules of natural justice. the second division held that the avennents instructing a charge of contumacy were irrelevant and that, accordingly, the decision of the synod to suspend the pursuer was null and void, on the grounds that it was contrary to natural justice. a decree of reduction was consequently granted. the details of the charge of contumacy need not concern us, and the court declined to get involved in the theology of protest though lord robertson did quote with approval the obiter of lord guthrie in mackay v. macleod to the effect that the making of a protest by a minister of the church against a decision of synod could not be construed as implying his separation from the church, but merely his disapproval of the decision against which the protest was made.29 what is of greater interest for the purposes of the present discussion, however, is the willingness of the court to examine the extent to which the synod had complied with the rules of natural justice. lord justice clerk ross outlined the basic principles as follows: 26 ibid. 27 mr. radcliff raised a separate action; it was agreed that the action, in effect, be sisted pending the outcome ofmr.brentall's reclaimer. 28 supra.n.21 per lord robertson at 484. 29 first division, 10th.january, 1952, unreported. 56 judicial review and church courts "natural justice has a number of facets, but it certainly includes the principle that a decision should not be taken against a party without that party having a fair opportunity to know what the case against him is and a fair opportunity to deal with the case.,,30 in short, audi alteram partem. the lord justice clerk rejected the argument that a hearing before synod would, in the circumstances be a useless formality, and quoted with approval lord president clyde in barrs v. british wool marketing board: "it is not a question of whether the tribunal has arrived at a fair result for in most cases that would involve an examination into the merits of the case upon which the tribunal is final. the question is whether the tribunal has dealt fairly and equally with the parties before it in arriving at the result. the test is not, has an unjust result been reached? but, was there an opportunity afforded for injustice to be done? if so, the decision cannot stand. ,,31 the court therefore decided that the defenders had proceeded in breach of the rules of natural justice and, on that basis, found for the pursuer. buchan v. brodie32 the question of the court of session's power of judicial review in the case of an alleged breach of natural justice by the established church itself had previously been raised in buchan v. brodie. no opinion had been issued in that case, and what follows are the facts as rehearsed by lord osborne in logan v. presbytery of dumbarton.33 the petitioner, buchan, had been an appellant to the judicial commission of the general assembly of the church of scotland in relation to a matter of discipline. the commission deliberated on the appeal but was inquorate when it 30 supra. n.2] at 482. 31 ]957 s.l.t.153 at ]57. 32 outer house, 15th.august, ]984, unreported. 33 ]995 s.l.t.1228 at ]232; also noted in davidson, 57jpra.n.4 at para.1505 n.2. 57 the denning law journal did so. on the advice of the procurator, the general assembly declared the earlier proceedings null and void and remitted the case to the judicial commission for rehearing. the petitioner then applied to the court of session for interim interdict, pending full hearing, to prevent the commission from proceeding, on the grounds that members of the commission who had sat on the earlier appeal had already made up their minds and that it was contrary to natural justice that they should rehear the appeal. the answer to the petition contained a plea of no jurisdiction, citing article iv of the articles declaratory to the church of scotland act 1921. interim interdict was refused. logan v.presbytery of dumbarton4 the current position under the common law as regards judicial review of the actings of the colu1sof the established church appears to be that stated in logan v. presbytery of dumbarton. mr. logan was parish minister at abbotsford, clydebank. he had been running a business from his manse, and when he applied retrospectively to the presbytery for permission to do so, it was refused. he gave assurances that he would abide by the decision of presbytery; but, it was libelled in tile subsequent hearing before presbytery, he had then failed to abide by those assurances and was therefore in contempt. he was then suspended from the exercise of his office and an interim moderator appointed to the charge. after the granting of an interim interdict suspending the decision of the presbytery, the case came before the outer house once more on a motion for the recall of the interim orders. counsel for the defenders argued that the matter was one which fell squarely within the jurisdiction of the courts of tile church, on the grounds that it constituted a issue of doctrine, worship, government and discipline in the church within the terms of article iv of the articles declaratory, and that the proper course for the petitioner was to exercise his right of appeal to the general assembly against the decision of presbytery. the lord ordinary [osborne] concluded that he had no jurisdiction in the matter; and his judgment is worth quoting at some length: "as i understand the argument for the petitioner, it proceeded upon the basis that, since the powers of tile church had been the subject of parliamentary enactment, it followed that the decisions of the 34 ibid. 58 judicial review and church courts church, albeit in relation to spiritual matters, fell within the scope of the supervisory jurisdiction of the court of session. it appears to me that such a proposition involves a non sequitur. in the first place, it overlooks the fact that, to quote the words of lord justice clerk aitchson in ballantyne v. presbytery ofwigtown35 .. , the act of 1921 'is not an act of parliament conferring rights upon the church, but it is a recognition by parliament of articles framed by the general assembly of the church as its supreme court in the exercise of what it claimed to be its own inherent powers. ' furthermore, '[t]he act came into operation by an order of his majesty in council on 28th.june, 1926, and then only after the declaratory articles had been adopted by an act of the general assembly of the church of scotland with the consent of a majority of the presbyteries of the church. this adoption of the articles by the free will of the church after the act was on the statute book, and as a condition of the act becoming operative, was a assertion by the church of its autonomy in matters affecting its own life and polity.' in the light of these observations, it seems to me that the situation of the courts of the church of scotland cannot be equiparated with any tribunal created or upon which a power has been conferred by parliament... "36 the leading case on the subject of judicial review is west v. secretary o.fstate for scotland; in it the inner house set out the current law in considerable detail. delivering judgment on behalf of the whole court, lord president hope stated that: "the court of session has power, in the exercise of its supervisory jurisdiction, to regulate the process by which decisions are taken by any person or body to whom a jurisdiction, power or authority has been delegated or entrusted by statute, agreement or any other instrument. "37 3s 1936 s.l.t. at 654. 36 supra.n.33 at 1235 37 1992 s.l.t.636 at 650 [emphasis added]. 59 the denning law journal crucially, however, lord osborne distinguished between this elucidation of the supervisory jurisdiction of the court of session and the competence of the courts of the kirk, and concluded that: " ..it is quite plain that the courts of the church of scotland do not fall within this [definition] since ... it cannot be said that those courts are bodies 'to whom a jurisdiction, power or authority has been delegated or entrusted by statute.' it appears to me that what was achieved in the act of 1921 was a recognition by parliament of certain pre-existing inherent powers in the church of scotland, rather than the conferring of powers upon it."38 lord osborne noted with approval the obiter of lord murray in ballantyne v. presbytery of wigtown/9 that the court of session had exclusive jurisdiction to detennine the meaning and effect of the 1921 act and the declaratory articles. following lord murray's conclusion, he asserted that the remedy of judicial review might be available in certain circumstances; he did not, however, give any indication as to what those circumstances might be.40 he concluded with the passages from lord president boyle in lockhart and lord justice clerk moncrieff already quoted.41 the future of judicial review writing in 1992 lord mackay of clashfem, at the time lord chancellor, argued that: "the authority of the church in matters spiritual is thoroughly recognised, not only by parliament but also by the courts. this attitude so far as the courts are concerned extends to other churches than the church o{scotland itsell the courts do not take. . upon themselves the responsibility of deciding matters offaith. they 38 supra.n.33 at 1235 39 supra.n.35 at 664. 40 5'upra.n.33 at 1236. 41 supra.n.6 & n.8. 60 judicial review and church courts may have to decide as a matter of fact what were the beliefs of a particular organization at a particular time as those beliefs may defme the constitution of the organization for whose benefit monies are held in trust. "42 construed in the narrowest sense possible, this is undoubtedly the case; but it sheds little light on the likely attitude of the courts to a whole range of possible solutions. the crux of the problem is to define "matters spiritual". it is tolerably clear that the substitution by canon law of one communion rite for another, as in forhes v. eden, is a spiritual matter rather than a temporal one; it can reasonably be argued that such an action is hardly different in kind from the voluntary association that is the scottish rugby football union changing the penalty for intentionally collapsing the scrum should it choose so to do.43 equally, there are clear cases in which a patrimonial interest is involved. whether the decision of the synod of the free presbyterian church complained of in brentall related to a spiritual or to a temporal matter, however, is not at all apparent. given the importance of the theology of protest for the history of that church, did the argument over protest mean that the matter was a spiritual one? or was it merely an action for reparation on the grounds of wrongfl.1ldismissal? conversely, the pursuer's conduct in logan seems to have had little, if anything, to do with "matters spiritua1." mr.logan's offence was to run a business from his manse without the agreement of his presbytery and no doubt, from his perspective, there were patrimonial interests involved, both as a parish minister and as the proprietor of the business to which his presbytery had taken exception. but this was never put to the test, since the court of session refused to review the decision of a court of the established church on what that court had ruled was a disciplinary case under article iv of the articles declaratory. it would appear, rather, from the foregoing discussion that, at the time of writing, the position of the kirk vis-a-vis the court of session is markedly dtfferent from that of the other religious bodies in scotland. unlike the situation in england, where the decisions of the judicatories of voluntary associations are 42 mackay of clashfem, lord, "the law, the word, and the head of the kirk" in lamont s. (ed): st andrews rock: bellew london 1992 at 149 [emphasis added). 43 though the international board might have views on the matter! 61 the denning law journal not subject to judicial review because they lack any element of public law,44in scotland such voluntary associations are in principle subject to judicial review of their actings however reluctant the court of session may be to involve itself in any particular set of circumstances. for example in brentall, lord dunpark noted (without comment, because the point was not at issue) that the manual of practice qfthe free presbyterian church conferred the nobile qfficium upon the free presbyterian church synod.45it is no doubt open to any voluntary association in scotland, religious or otherwise, to confer upon its supreme governing body, ifit so wishes, the exercise ofa power which it may choose to call the nobile c?[ficiumif by that term it means, in effect, "the application of the rules moderated by common-sense." such a power must, however, be exercised in accordance with the rules of natural justice and must inevitably be subject to judicial review. the nobile officium of the general assembly of the kirk, on the other hand, is an entirely different matter. it is identical with that exercised by the court of session in civil causes, inhering in the fact that the assembly is the supreme court of the established church in ecclesiastical causes; and it is exercised independently. commenting on the law as it stood in 1980 and following the dicta of lord justice clerk moncrieff in wight,46 professor francis lyall concluded that: "so long as the courts of the church do not act plainly ultra vires, or maliciously, or manifestly unjustly (not merely unjustly) or contrary to some civil enactment, no action will lie to reduce their proceedings, or to obtain redress for any injury they have caused. but this is not the same as a statement that the courts of the church have absolute independence from review by the civil courts.,,47 it is clear that the legislative and judicial actings of dissenting ecclesiastical bodies are of the nature of the mles of voluntary associations: binding on the members but on no-one else, and even then, binding only if they have been arrived at by due process. commenting on what can only be described as a 44 r. v. chief rahbi of the united hebrew congregations of great britain and the commonwealth, expo wachmann[1993] i w.l.r.i036. 4s supra.n.21 at 476; see also lord ross at 481. 465'upra.n.4. 47supra.n.io at 59. 62 judicial review and church courts bizarre judgment by the episcopal synod of the scottish episcopal church in 1984 on an appeal by the vestry of st.devenick' s church, beildside, concerning access to that congregation's register of baptised members and adherents, george w.patterson asks: "will the civil courts asswne jurisdiction if an ecclesiastical court claims that the law of scotland has been modified by the association's internal rules, even though according to normal principles of interpretation no such modification is apparent?,>48 after brentall, one might reasonable conclude that, providing the court in question was a tribunal of a dissenting church, the answer to patterson's question would be in the affirmative. as to the church of scotland, the present writer would suggest that the law on judicial review has been developing since 1980 in sllch a way as to lead to the conclusion that, for all practical purposes, the general assembly and the judicial commission of the kirk are currently immune from judicial review of their actings as, in all probability, are presbyteries and kirk sessions. up to now, it has been difficult, in the light of lord osborne's judgment in logan, to envisage any circumstances in which the caveat emmciated by lord murray in ballantyne about the power of the court of session to interpret the 1921 act could in fact apply, even though lord osborne quoted it with approval. in what circumstances could the court of session now intervene? malice? but how can one allege malice against a court of the realm? want of jurisdiction? but the cases that are heard in the courts of the kirk are by definition ecclesiastical causes. procedural irregularity? but if the court of session will not go behind the definition in article iv, then it will presumably not entertain any arguments about procedural impropriety or disregard of the rules of natural justice. 49 what may change the situation, however, is the enactment of the human rights act 1998 which incorporates into united kingdom law articles 2 to 12 and 14 of the european convention on 48 supra.n.20 at 161. the appeal was heard on 20th. december, 1984; because the episcopal synod is not a court of the realm it is, of course, unreported. 49 there remains the possibility of an action for a breach of statutory duty; but, given the nature of their respective responsibilities, this would more likely to be brought against the general trustees, under the terms of the church of scotland (properties and investments) act 1925, rather than against the assembly itself 63 the denning law journal human rights and articles 1 to 3 of the first protocol thereto, as read with articles 16 to 18 of the convention. so in his speech on the third reading of the bill in the house of lords, the lord advocate, lord hardie, addressed the question of whether or not the courts of the kirk were courts for the purposes of clause 6 of the bill.5! section 6(1) of the act states that "[i]t is unlawful for a public authority to act in a way which is incompatible with a convention right" and section 6(3) defines a court or tribunal as a "public authority" for the purposes of 6(1). lord hardie began from the position that the courts of the kirk: "do not, as a matter either of their constitution or practice, carry out any judicial functions on behalf of the state. nor do they adjudicate upon a citizen's legal rights or obligations, whether common law or statutory. they operate in relation to matters which are essentially of a private nature. ,,52 the effect of the 1921 act was therefore: "to define the church [of scotland] as a non-public or private institution in the sense that its affairs were no concern to the state. the 1921 act effectively disestablished the church of scotland. it would seem to me illogical to say that the state had no interest or jurisdiction over the affairs of the church and its courts while at the same time saying that those courts were nevertheless courts for the purposes of a public general act.,,53 he went on to say, however, that the courts of the kirk might in some circumstances be regarded as "public authorities" for the purposes of the legislation. in particular, he gave the example of proceedings by a kirk session considering disciplinary action against a minister and the requirement under article 6 of the convention that there should be "a fair and public hearing ..by an 50 the texts are set out in extenso in schedule 1 to the act. 51 hl.deb.(l997-1998) 5 februal)' 1998 col.792. in an amended form, it became section 6 of the act. 52 ibid. co1.794. 53 ibid. 64 judicial review and church courts independent and impartial tribunal established by law." he went on to suggest that: "questions might then arise i emphasise that i am referring to a hypothetical situation as to whether a kirk session was independent and impartial and, in particular, whether it was established by law. i would have some doubts as to whether a kirk session could be so described ...[it] seems to be reasonably clear that there was a period in the history of the church when much of its administration and government was regulated by acts of the scottish parliament. at that period it would be easy to say that kirk sessions, and indeed the assembly itself, were "established by law." however that may have been, it appears to me that the effect of the 192] act was to cut the connection between the general law of the land and the administration and government of the church. that being so, it must be at least doubtful whether the kirk session and the general assembly could any longer be said to be "established by law." it is also possible that questions might be raised as to whether church courts present a sufficient appearance of independence and impartiality. ,,54 he concluded that: "if a church body to which the bill applies commits a wrong in convention tenns, it would fall to the civil courts to right it. the convention rights are in this context part of the law of the land. the civil courts would investigate the convention issue ... in exactly the same way as which they would address any otller question arising under the law of the land; for example, a complaint that someone acting on behalf of the church had committed a delict... the civil courts' task does not, and cannot, involve trespassing on the doctrinal and spiritual interests of the church ...,,55 s4 ibid. at col. 796. ss ibid. 65 the denning law journal conclusion section 13(1) of the act provides that in determinating of any question arising under the legislation which might "affect the exercise by a religious organisation ... of the convention right to freedom of thought, conscience and religion" the court must "have particular regard to the importance of that right.". it is difficult to see, however, how this might be applied in practice in a purely disciplinary case the hypothetical example offered by the lord advocate, of a claim by a minister that judicial proceedings against him were irregular and therefore contrary to article 6 of the convention, was very similar to the argument advanced by the petitioner in buchan v. brodie.56 on that occasion, as we have seen, the court of session refused to go behind the tenns of article iv of the schedule to the 1921 act; but would it do so now? similarly, once one sets aside the power of a presbytery to determine whether or not a case before it is one of discipline under article iv, then the facts in brenta1l57 and the facts in logan58 begin to have a good deal in common. it is clear, therefore, that what was settled law has now become unsettled. article iv asserts: "the right and power subject to no civil authority to legislate, and to adjudicate finally, in all matters of doctrine, worship, government and discipline in the church ..." in any future action of the kind contemplated by the lord advocate, the matter at issue will in all probability be whether or not the judgment of the court which is called into question relates to " functions of a public nature" under section 6(3 )(b) of the act, and whether a case of discipline under article iv should be so defined given that article iv distinguishes between doctrine, worship, government and discipline. the effects of the act on the exclusive jurisdiction of the courts of the kirk and on the development of the law in this area therefore remain to be seen. 56 supra.n.32. 57 supra. n.21. 58 supra.n.33. 66 fixed-term contracts regulating "atypical" working *helen j desmond i. introduction there has been a rapid growth in recent years in various "non-standard" or "atypical" forms of working, variously defined as any form of working that is not performed under a permanent full-time contract of employment. closely associated with competitiveness, flexibility and adaptability, at least a third of new engagements are now to some form of temporary job. in excess of 1.5 million workers in the united kingdom work under a variety of temporary arrangements, including part-time, casual, on-call or fixed-term contracts, as a consequence of which they may fall outside the main body of employment protection legislation. 1 although eligibility for employment protection is no longer subject to an hours threshold2 temporary workers may full outside the main framework for a number of reasons: they may not be employed under a contract of employment, and therefore not be an employee3 or may fail to accrue sufficient continuous employment.4 . international centre for management, law and industrial relations, university of leicester. i would like to thank professor alan neal for his helpful comments on earlier drafts of this article. any errors remain, of course, entirely my own. 1 f.sly, and d.stillwell, "temporary workers in great britain" labour market trends, ~september, 1997) at pp.347-354. the employment protection (part-time employees) regulations 1995, s.l. 1995/31, which has now been consolidated into the relevant sections of the employment rights act 1996 [e.ra 1996]. 3 the e.ra. 1996 s.230. 4 the e.ra. 1996 ss.108 and 155 respectively required a period of two years' continuous service to be eligible to bring proceedings for unfair dismissal and the right to a redundancy payment. this period was reduced to one year in connection with unfair dismissal only where the effective date of termination falls on or after l't june, 1999, unfair dismissal and statement of reasons for dismissal (variation of qualifying period) order 1999. 43 the denning law journal nearly 7.5 per cent of workers in the united kingdom work under a fixed-term or task-based contact.s whilst many organisations operate such contracts, and have traditionally done so to meet seasonal and short term demands, the increasing trend towards fixed-term and task-based contract working reflects a shift in the preference of employers for a smaller core workforce. however, fixed-tenn contract working is increasingly evident in public-sector, where in excess of 50 per cent of those working on fixed-term contractual arrangements are employed, and amongst whitecollar workers: almost a third of those working on fixed-term contract arrangements fall within the classification of professional employees, which includes teachers and lecturers. one of the attractions of fixed-term contracts for employers has been that domestic legislation6 has provided that certain fixed-term contracts were an exception to the general rule, contained in the employment rights act 1996, section 203( 1), that any agreement to exclude or limit the operation of any provision of the 1996 act or preclude a person from bringing any proceedings under the 1996 act before an employment tribunal is void.? it was, therefore, the case that although nonrenewal of a fixed-term contract is "dismissal" under the 1996 act8 a waiver clause, agreed to during the term of certain fixed-term contracts,. was capable of successfully ousting the jurisdiction of employment tribunals in proceedings for both unfair dismissal and for the right to receive a redundancy payment. 9 a change to this position was signalled in the white paper fairness at work10 and at the level of the european communities, by the draft framework agreement on fixed-term work reached by the social partners in january, 1999. however, despite subsequent legislation, contained in the employment relations act 1999, section 18( 1)-(5), and adoption by the european commission of a council directive giving effect to the framework agreement,11 domestic case law regarding these ouster clauses remains relevant. 5 made up of65% men, 8.4% women. the percentage in germany is 116% and spain 32.4%. 304 e.i.r.r., (may, 1999) at p 17. 6 thee.rai996, s.203(2)(d). 7 the e.ra 1996, s.203( i)(a) and (b). the name of industrial tribunals was changed to employment tribunals under employment rights (dispute resolution) act 1998 and brought into force from 1'i august, 1998 by employment rights (dispute resolution) act (commencement no.1 and transitional and savings provisions) order 1998, s.i. 1998/1658. 8 s.95(1)(b) and 136(1)(b). 9 s.197(1) and (3) respectively. 10 cm. 3968, may, 1998. ii directive 1999/701ec. 44 fixed-term contracts althoul~h the court of a~peal i~ brit~'shbroa~casting corp~ration v. ~ellyphillips, expressed a desire to 'keep it snnple by the operation of the celebrated dictum" of lord denning in british broadcasting corporation v. ioannou, 13 which has the advantage of certainty and thus predictability, the court found themselves unable to agree with the "denning test." they preferred instead the observations of the majority of the court of appeal in ioannou, and those of sir brian hutton in the northern ireland court of appeal in mulrine v. university of ulster, 14 and did so despite recognising that this may have provided a potential for abuse. prior to the most recent changes, the position facing judges in the united kingdom has been that in order to come within the e.r.a. 1996, sections 94 and 135, the right for british workers not to be unfairly dismissed and to be paid a redundancy payment on dismissal for redundancy, it is necessary for a "dismissal," as opposed to a consensual termination, to havy occurred. since at common law the ending of a contract merely by the effluxion of time involves a consensual tennination, by the e.r.a. 1996, sections 95(1)(b) and 136(1)(b), expiry ofa fixed-term contract "without being renewed under the same contract" is deemed to be a "dismissal." such a dismissal is capable of being unfair under general principles and of giving rise to the duty to make a redundancy payment in the same way as dismissal under a contract of an indefinite duration. however, unlike contracts of employment of indefinite duration, by the e.r.a. 1996 section 203(2)(d), a fixed-term contract that falls within the definition contained in section 197(1) or (3) is not rendered void by the general principle against "contracting out" of the provisions of the 1996 act contained in section 203. section 197(1) provides that part x of the 1996 act, which contains the right to claim unfair dismissal, does not apply to dismissal from employment under a contract for a fixed-term of one year or more if: "(a) the dismissal consists only of the expiry of that term without it being renewed, and before the term expires the employee has agreed in writing to exclude any (such) claim." it is therefore the case that although non-renewal of a fixed-term contract is a "dismissal" for statutory purposes, where the contract is for one year or more and where during the currency of the contract the employee has agreed to a waiver 12 [1998] i.r.l.r. 294, [ca.]. 13 [1975] i.r.l.r. 184, [ca.]. 14 [1993] i.r.l.r. 545, [n.i.ca.]. 45 the denning law journal clause, there is no right to claim unfair dismissal in the event of non-renewal of the contract. in addition, section 197(3) provides that: "an employee employed under a contract of employment for a fixedterm of two years or more is not entitled to a redundancy payment in respect of the expiry of that term without its being renewed (. .. ) if, before the term expires, the employee has agreed in writing to exclude any right to a redundancy payment in that event." this article will discuss the developing case law surrounding the two key areas of contention in the interpretation of these .provisions: what constitutes a fixed-term contract and whether a renewal of such a contract is a new contract, and therefore must be for a minimum period of one year (or two years in the event of redundancy payment waiver) in order for a waiver to be valid, or whether such a renewal merely has the effect of continuing the original contract, thereby enabling an exclusion to be effective regardless of the length of the extension, providing that taken overall until termination the contract is for one year or more, or two years or more, as appropriate. the recent amendments to domestic legislation are discussed as are european measures to regulate various forms of "atypical work," and fixed-term working in particular, in so far as they point up the lack of domestic regulation over such contracts and the need for future legislative measures. although the case law to which reference is made was decided under provisions contained in a variety of statutes dating from 1965,15the relevant provisions rmder discussion are currently contained in the employment rights act 1996, which consolidated, inter alia, individual employment legislation contained in the employment protection (consolidation) act 1978, and commenced on 22nd august, 1996. throughout the following discussion, those provisions applicable to the 1996 act have been used regardless of when, and the statute under which, the case was decided. 15 the industrial relations act 1971; the redundancy payments act 1965; the contracts of employment act 1963 and 1972; the trade union and labour relations act 1974 and the employment protection (consolidation) act 1978. note should be taken that the provisions relating specifically to fixed-term contracts have undergone a series of "consolidations," and restatements. the provisions relating to the written terms of employment were completely replaced in 1993 for the purpose of implementing directive 91/533. for the purposes of this article there would appear to be no substantive difference between the pre and post 1993 version. 46 fixedterm contracts ii.what constitutes a fixed-term contract? a fixed-term contract is not defined in the 1996 act and the matter fell for consideration, in its pre 1996 form, in british broadcasting corporation v. dixon. 16 in reversing the earlier court of appeal decision in british broadcasting corporation v. ioannou, 17 the court held that a contract that is to expire at the end of a given period is a fixed-term contract notwithstanding that it provides for termination by notice by either party within the term. to decide otherwise "would mean that an employer could always evade the [1996] act by inserting a simple clause 'determinable by one week's notice' ." as lord denning pointed out: "that can never have been the intention of the legislature at all. the words 'a fixed term' must include a specified stated term even though the contract is determinable by notice within its term." the b.b.c. w1successfully argued that there was no dismissal, and therefore no right to claim w1fairdismissal, since employment had come to an end merely by expiry of a contract which was not a fixed-term contract because of the notice provision contained within it: there could, therefore, be no deemed dismissal w1derwhat is now the e.r.a. 1996 section 95. this interpretation by the court of appeal in dixon of the term "fixed-term contract" remains the law today and the matter has not since then been controversial. there has, however, been some controversy as to whether a "task contract" a contract that comes to an end upon the completion of a particular task, rather than at a predetermined date is capable of being a fixed-term contract for the purposes of invoking the statutory provisions w1derconsideration. in wiltshire county council v. national association of teachers in further and higher education and guy mr. justice phillips in the e.a.t. said that there was no reason why a contract of employment, the date of expiry of which could not be ascertained at the time the contract is created, could not be a contract for a "fixed term" and that a contract "for the duration of the present government" or "during the life ofthe present sovereign" or "for some other period capable ofbeini determined by reference to a prescribed test" would be a contract for a fixed term. i however, in ryan v. shipboard maintenance this approach was doubted by mr. justice kilner 16 [1979] i.rlr 114, [cal. 17 supra n.13. 18 [1978] i.r.lr. 301 at 303, [eat). 47 the denning law journal brown who said that a contract that is "indeterminate as to termination" was not capable of amounting to a "fixed-term contract:" "there is no authority of which we are aware that allows for imprecision of termination in the context of an indefinite prolongation only determinable in the words used by phillips, j 'by exterior events'. furthermore we take the view that it is stretching the meaning of the words beyond the intention of parliament to say that it covers an event which can be identified in character but cannot be identified with a precise date in the future.,,19 on appeal in wiltshire, noting the disapproval expressed as to the reasoning by the e.at. in ryan, lord denning, making reference to the donovan commission report of 1968,20said: "although the royal commission recommended 'particular purpose' the legislature did not accept that recommendation. it limited the protection to contracts for a 'fixed period'. it did not extend the protection to a contract 'for a particular purpose' .... a contract for a particular purpose, which is fulfilled, is discharged by performance and does not amount to a dismissal. ,,21 in addition, lord denning referred to his own judgment in dixon, decided after the e.at. in wiltshire, in which he said: "the words' a fixed term' must include a specified stated term even though the contract is determinable by notice within its term" and noted that the contracts of employment act 1972, section 4(4), [now the e.r.a. 1996, section 1(4)(g)] which provides that where the contract is a fixed-term contract, the employer must include within the statutory statement the date when it is to end, meant that "the legislature clearly thought that, in order to be a 'fixed term,' there had to be a date stated at the beginning when the contract will expire." nevertheless, the court of appeal upheld the decision of both the tribunal and 19 [1980] 1.r.l.r. 16 at 18, [e.at.]. 20 royal commission on trade unions and employers' associations 1965-1968, cmnd. 3623. 21 [1980] i.r.l.r. 198 at 200, [cal 48 fixedterm contracts e.at., that a lecturer's contract, which specified that it was 'for the session 1976/77,' was, on an "intelligible and sensible view,,22 a fixed-term contract because the lecturer was employed for the academic session which started at the beginning of the autumn tenn and came to an end on the last day of the summer term: it contemplated a clear ending which could be identified at the outset of the contract. lord denning's judgment in dixon23 and wiltshire county council v. national association of teachers in further and higher education and guy,24 regarding the basis of identifying a fixed-term contract, and hence permitting non-renewal to be dismissal under the e.r.a 1996, sections 9s and 136, remains good law today. as explained by mr. justice mummery (president) in pfafjinger v. city of liverpool community college and muller v. amersham & wycombe college, the combined effect of the e.r.a 1996 section 136(1)(b), which mirrors section 9s and treats non-renewal of a fixed-term contract as dismissal for redundancy purposes, and the e.r.a. 1996 section 139(1 )(b), which provides that an employee is dismissed for redundancy where the reason for dismissal is that, inter alia, the requirements of the business concerned for employees to carry out work ofa particular kind have ceased or diminished, meant that the lecturers concerned were redundant since the employer's reason for non-renewal was that the function of lecturing ceased or diminished from the beginning of the vacation until the start of the new term: "there is no teaching during that period and therefore no need for teachers. that is a redundancy situation. ,,25 hence: " ... where there is a succession of fixed-term contracts which expire, there may be a dismissal for redundancy on the expiration of each contract. so, for example, where a part-time lecturer has three fixedterm contracts, one for each term during the academic year, he may be dismissed three times during that year for redundancy. this may sound surprising to some but, on the present state of the authorities and the legislation, that is the position. ,,26 22 ibid, per lord denning at 200 para. 22. 23 supra n.16. 24 supra n.21. 25 [1996]i.rlr 508,[eat). 26 ibid at 512permummery, j. (president). 49 the denning law journal this decision was based on the earlier court of appeal decision in lee v. no/linghamshire county council, in which, in interpreting equivalent provisions in the redwldancy payments act 1965, the court held that in the case of expiry and non-renewal of a fixed-term contract it was necessary to ask: "why was not the employee's contract renewed?,,27 if, in the case of a teacher, the answer was that there was no more work to do that was, as pointed out by lord justice eveleigh, still a redundancy even though the failure to renew was foreseen right from the beginning. the e.a.t. in pfafjinger noted that the tribunal held, on an application of the house of lords' decision in ford v. warwickshire county council, 28that in view of the e.r.a. 1996 section 212(3)(b), which provides that where an employee is "absent from work on account ofa temporary cessation of work," his employment is deemed to be continuous, the period of absence not breaking continuity, but also counting towards continuity, the entire period of employment was therefore continuous. this means that upon expiry of the final contract term the employee can rely on the entire period of employment, including those periods between contracts, in order to bring themselves within the time thresholds for unfair dismissal and redundancy, and to increase quantum, since compensation is calculated by a multiple of pay and the period of employment. nevertheless, that, said the e.a.t. in pfaffinger, did not have the effect of preventing the expiration of a fixed-term contract from being a dismissal, or the circumstances being a redundancy situation within the statutory definition. iii.renewal or continuation of the same contract? where the employee is employed on a succession of fixed-term contracts and the final contract is for less than the one or two year period, as appropriate, controversy has surrounded the question of whether a waiver in that final contract is then effective or whether the final contract must be for the periods required in the e.r.a. 1996, section 197(1)&(3). in british broadcasting corporation v. ioannou the court of appeal held that the final contract, not being for two years or more, did not fall within the statutory provisions, at that time contained in the redundancy payments act 1965 and the trade union and labour relations act 1974, even though it contained a waiver?9 27 [1980] i.r.l.r. 284, [c.a.]. 2k [1983] i.r.l.r. 126, [h.l.]. 29 supra n.l3. 50 flxedterm contracts however, the reasoning differed as between the majority, lord justices stephenson and geoffrey lane, and lord denning. the majority, in following the reasoning of the national industrial relations court [n.i.r.c.], held that the final contract was, on the facts, a re-engagement under a new contract of employment rather than a renewal of an existing contract of employment. on this basis, the final contract needed to be for a period of two years or more in order for the employee to be able to effectively contract out of his rights. lord denning, on the other hand, said that: "i do not think it is necessary ... to inquire whether there is a 'renewal' of a previous contract of employment or a ore-engagement' under a new contract of employment. that is to fine a distinction for ordinary mortals to comprehend. suffice it to say that you must always take the final contract which expires, and on the expiration of which he claims redundancy payment or compensation for unfair dismissal. if the final contract is for a fixed term of two years or more, it is permissible for the employee in writing to agree to exclude his rights, so long as he does it before the term expires. if the final contract is for less than two years, as for instance for a fixed term of one year, then he cannot exclude his right. it matters not whether the final contract is a renewal or re-engagement. it is the final contract alone which matters in this regard .... ,,30 in ioannou the court of appeal held that there was no fixed-term contract at all, so it would appear that discussion on the test to be applied in relation to the term of the contract for the purposes of section 197 was obiter. however, in open university v. triesman31 the dictum of lord denning in joannou32 was followed by the e.a.t. mr. justice phillips said: "at the end of the day we have come to the conclusion that we should follow the observations of the master of the rolls ... not only because they are of high persuasive authority, but because, after considering the arguments addressed to us, we respectfully agree with them." 30 supra n.b at 186, para. 14. 31 [1978]i.rlr. 114, [eat.]. 32 supra n.13. 51 the denning law journal triesman was followed by the e.a.t. in richards v. bp oil ltd. where mr. justice browne-wilkinson j., the president of the e.a.t., put the argument thus: "the crucial question is: does one look at the whole term of the original contract plus extensions as one contract or does one concentrate attention solely on the last contractual arrangement made between the parties? we can see no ground for distinguishing open university v. triesman on that point.,,33 the court in both triesman and richards were attracted to "the denning test" because of its simplicity and for the certainty it offered. in triesman mr. justice philips said, "the validity or otherwise of exclusions of this character should so far as possible be easy to determine. for that reason a simple test is desirable." likewise, in richards mr. justice browne-wilkinson said that, "in the interests of orderly industrial relations, it is undesirable for us to depart from that (open university v. triesman) decision and therefore we follow it." however, in mulrine v. university afulster the northern ireland court of appeal disagreed with the application of lord denning's reasoning, holding that the proper approach was to ask whether, on a true construction of the documents, the employee's contract was extended or renewed for the further period, in this case four months, or was a re-engagement under a new contract. 34as long as the last contract was merely an extension or renewal of the previous contract, as opposed to a re-engagement under a new contract, the waiver would be valid to oust jurisdiction of the tribunal no matter what the length of the extension, providing that overall the contract had been for a period of more than two years. it was held that the contract had been, not for a four month period, but for two years and four months and therefore the waiver in the final renewed contract was valid so as to oust the jurisdiction of the tribunal. lord justice macdermott in rejecting the application of a single and simple test and referrin~ to the decision of mr. justice phillips in open university v.triesman, 5 said: "there is no doubt that phillips j was attracted by the fact that lord denning's test was a simple one, which avoided the drawing of fine 33 eat/768/82, 12 th april, 1983 (unreported). 34 supra n. 14. 35 supra n.31. 52 fixedterm contracts distinctions between extensions which are renewals and those which are not but are mere fe-engagements. sadly, despite all the original anxiety to keep the work of industrial tribunals simple and free from legal complication, experience has shown, and the various series of reported cases confirm, that the work of a tribunal often does involve questions oflaw. i, for my part, share the view that, if possible, matters should be kept simple, but i do not accept that the courts for that reason should introduce a test which can lead to a distorted meaning having to be given to agreements freely entered into." the decision in mulrine, although persuasive only, led to the need for employers, as well as tribunals, to consider in all cases the fine point as to whether the continuation of a fixed-term contract was a renewal of a previous term or merely reengagement under a new contract. if the continuation is found to be are-engagement under a new contract then that final contract needs to comply with the e.r.a section 197 and be for a term of one year or more, or two years or more, in order for any waiver to be valid such as to oust the right to claim unfair dismissal or redundancy compensation when it is itself not renewed. on the other hand, if the final term is found to be an extension or renewal of the existing contract, the length of the final term is not of significance in determining the validity of the waiver. in mulrine the initial term was two years, which was held to have been extended by four months, leading to a contract for two years and four months.36 the waiver in the extended four month contract was therefore valid for the purposes of the equivalent provision of the e.r.a 1996 section 197. however, what was not addressed was whether, if the second period is held to be an extension of the first, the period of the extension can be added to the first period to constitute a contract that complies with the requirements of section 197: for example, can a contract of seven months, held to have been extended for six months, form a contract for "one year or more" and thus, if it contains a waiver it will be valid. another point to consider on the mulrine test is whether, if the second period is an extension of the first it is necessary for a w,aiver to be incorporated at all in the second contract, or whether the employer in such a situation could rely on the contractual term of the "master contract." there followed a period of a flurry of case law on the issue of the status of the second contract and the application of the "denning test." in housing services agency v. cragg a redundancy payments case, the e.at. noted the conflicting 36 supra n.14. 53 the denning law journal authorities and subjected the statutory waiver provisions to detailed scrutiny.3? they concluded that the "final contract test" or the "denning test" propounded by lord denning in ioannou, was correct in so far as it related to an unfair dismissal waiver since section 197(1) required the waiver to appear in the final contract which must be for a period of one year or more in order to be effective. mr. justice peter clark said: " ... we accept the final contract test propounded by lord denning and followed in bp in so far as it relates to unfair dismissal waiver. questions of renewal and re-engagement are not too difficult; they are simply irrelevant when considering unfair dismissal waiver." however, in so far as a redundancy payment waiver is concerned, the e.at. concluded thatioannou was wrongly applied in open university v. triesman,38 a redundancy payment case, since the e.r.a 1996 section 197(3)-(5) required that there must be a waiver agreement both in relation to the original fixed-term contract and during the currency of each extension of the fixed term, there being no requirement for each extension to be for a period of two years, since it is the first contract that is in question. the court held that, in connection with an unfair dismissal waiver, the following requirements must be met "( 1) there must be a fixed-term contract. it is immaterial that it contains a notice provision (dixon). it must be for a term of one year or more. it is not permissible to aggregate successive fixed terms so as to amount to one year or more. (2) there must be a term of the contract, or separate agreement (s.197(4)) entered into before the expiry of the fixed term excluding the right to claim unfair dismissal. no question of consideration arises in a contractual sense. it is sufficient that there is an agreement made between the parties in writing to that effect. (3) if dismissal, consisting of the expiry of the fixed term without its being renewed (on the same terms) (s.95(l)(b); s.197(l)(a) occurs, the employee is excluded from the right to bring a complaint 37 [1997] i.r.l.r. 380, [eat.]. 38 supra n.31. 54 fixedterm contracts of unfair dismissal under s.94(1). (4) if there is no dismissal under a(4) above, the parties must start again. whether by renewal or re-engagement, if the employment continues for a further fixed term, that must'be for a term of one year or more, and there must be a waiver agreement complying with s. 197(4) entered into before the expiry ofthe new term (s.197(1)(a»." as to a redundancy payment waiver, mr. justice peter clark said that under the e.r.a. section 197(3)-(5) there must be a waiver agreement both in relation to the original fixed-term contract and during the cur rency of each extension of the fixe~ term, but that if the term as renewed had to be for a period of two years or more, there would be no need for section 197(5), which does not specify any period for the renewed fixed term. section 197(5), which provides that: "where (a) an agreement such as is mentioned in subsection (3) is made during the currency of a fixed term, and (b) the term is renewed, the agreement shall not be construed as applying to the term as renewed; but this subsection is without prejudice to the making of a further agreement in relation to the renewed term" applies only to section 197(3) waiver agreements, and not to section 197(1) unfair dismissal waivers. it was held that what is envisaged, and was envisaged by the original redundancy payments act, was that where an employee enters into a fixedterm contract for two years or more with a waiver agreement, if that term is renewed for a further fixed period of whatever duration, provided he entered into a fresh waiver agreement during the currency of the extended term, he was precluded from claiming a redundancy payment on expiry of that term without a further renewal. the length of the extended term was not relevant, neither was the fact that the term may have been an extension or a mere re-engagement. the position was summarised thus: "( i) there must be a fixed-term contract as in ... (1) above. (2) it must be, in the first instance, for a term of two years or more. it is not permissible to aggregate successive fixed terms so as to 55 the denning law journal amount to two years or more. (3) before the expiry of the fixed term under (2) above, the parties must enter into a waiver agreement as defined in s.197( 4). (4) if dismissal, consisting of the expiry of the fixed term without its being renewed(on the same terms) (s.136(1)(b); s.197(3) occurs, the employee is excluded from the right to bring a claim for a redundancy payment under s.135(1). (5) if there is no dismissal under (4) above because either the contract is renewed or he is re-engaged on different agreed terms (see s.138), then, if the originalflxed term is renewed for a further fixed term (see s.235(1», whether for a period of two years or less, and during that extended term the parties enter into a s.197( 4) waiver agreement, then dismissal arising out of the expiry of the original fixed term as extended will not give rise to a claim for a redundancy payment (s.197(3) read with (5»." mr. justice peter clark went on to say that "it may be said that by drawing, we think for the first time, a clear distinction between the unfair dismissal and redundancy payment waiver provisions, that will create an anomaly. hitherto, employers have proceeded on the basis that there is no material distinction (save for the one-and two-year terms) between the two. so be it. ,,39 this "final contract test" was confirmed as appropriate to unfair dismissal by the e.at. in bbe v. kelly-phillips where the purported unfair dismissal waiver was held to be invalid because the last in a series of fixed-term contracts under which an employee worked was not for a year or more as required by the e.r.a. 1996, section 197(1).40 with regard to the argument put forward by the respondent, that, notwithstanding that the final term was for under four months, the contract of employment from which ms kelly-phillips had been dismissed was, by a succession of renewals, one for a fixed-term which had began with the start of the first contract and which expired when the relationship came to an end. mr. justice lindsay said that in the case of unfair dismissal, what is now the e.r.a. 1996 section 197( 1) 39 supra n.37 at 386. 40 [1997] lrl.r. 571, [eat.]. 56 fixed-term contracts provides merely that part x of the 1996 act does not apply to dismissal from employment under a contract for a fixed-term of a year or more: it makes no mention of renewal or extension and consequently the word 'renewal' has no place in the construction of section 197(1).4] although these decisions move away from the simplicity of the "denning test" as being applicable to both unfair dismissal and redundancy cases, an examination of the statutory provisions leads one to conclude that mr. justice peter clark in housing services agency v. cragg42 and mr. justice lindsay in the e.at. in bbc v. kelly-phillips43 were correct in relation to the question of unfair dismissal. nevertheless, the use of the "denning test" in relation to unfair dismissal was thrown into doubt in bhatt v. chelsea and westminster health care trust when mr. justice kirkwood rejected it and held that a fixed-term contract of one year or more could be renewed or extended for less than a year and still successfully contain a waiver and therefore fall within the exclusion from the right to bring an unfair dismissal claim under section 197( 1).44 in such a case mr. justice kirkwood reasoned that the point of focus for the purposes of section 197( 1) is not the final extension, but the term of the extended contract. section 95 (1)(b), he said, envisaged that the term could be renewed without a new contract being made, but with the old contract continuing. it was therefore necessary to distinguish whether there was a renewal of the term under the old contract, an extension, or whether the renewal was under a new contract. where the only change was an extension of the fixed-term, there was an extension under the same contract with no dismissal, dismissal occurring only when the final extension was not renewed. if the extended contract, in the sense referred to, was for a fixed term of one year or more then the contract would fall within section 197. in mr. bhatt's case the final period of employment was for three months, thus on the "denning test" it fell outside the requirements of section 197 in that it was not a contract "for a fixed term of one year or more." however, since mr. bhatt's extended contractual period dated from the original date of employment, 1st june, 1985, to his dismissal by operation of section. 95( l)(b), which occurred on 31st january, 1996, it was held that he was unable to claim unfair dismissal since he was employed (overall) for a period in excess of a year: the waiver was, therefore, 41 it shouldbe notedthat in autumn,1999mr. justicelindsaysucceededmr. justicemorisonas presidentof the ea t.. 42 supra n.37. 43 supra n. 12. 44 [1997] i.r.l.r. 660, [eat.]. 57 the denning law journal effective to oust the jurisdiction of the tribunal. when bbc v. kelly-phillips came before the court of appeal45 the reasoning of the e.a. t. in bhatt was approved, along with that of the majority in the court of appeal in ioannou 46 and the northem ireland court of appeal in mulrine. 47 lord justice peter gibson, in giving the leading judgment, disapproved of the e.a. t. decision and reasoning in housing services agency v. cragg, of which he said: "to suggest that the previous cases had overlooked the differences between unfair dismissal waiver and redundancy payment waiver is rather bold. there is no reason why in construing the relevant provisions consistency should not be sought. ,,48 it was held that under section 95( 1)(b), which provides that there is a dismissal if "he is employed under a contract for a fixed term and that term expires without being renewed under the same contract" there can be an extension of the term without there being a new contract and that thereafter the term of the contract is the extended term, and so on, so that dismissal does not occur until the extended term is not, in fact, extended further. applying that reasoning to the facts it was held that ms kelly-phillips entered into a contract for one year commencing on 4th september, 1994. this was varied in august, 1995 by the extension of the contract beyond its expiry date until 3 i st december, 1995 with all the provisions of the contract continuing in force, including a waiver clause, save for the amendment relating to the term. the extension, it was held, was therefore under the same contract as that entered into in september, 1994 and there was no dismissal, dismissal occurring under the varied contract which was for an extended fixed-term of one year or more when the extended term expired on 31st december, 1995 without being renewed. as the initial term of the fixed-term contract was for a year, the question did not arise as to whether, had the initial term been for less than one year, the contract could have acquired the status of a contract for a year or more by accumulating the periods from the extended terms of the same contract. in bhatt although the original 45 supra n. 12. 46 supra n.13. 47 supra n.14. 48 supra n. 12 at 299. 58 fixedterm contracts term was for a year or more, the e.at. expressed the view that the original or initial term must be for a fixed-term of one year or more and could not acquire this status merely by adding the extensions together. it is, however, submitted that on the reasoning put forward by the e.at. in bhatt and by the court of appeal in kellyphillips it is possible to do so. there is, however, some uncertainty, lord justice peter gibson, in kelly-phillips expressing the view that the term of the contract in that case was either that provided for under the extension (september, 1995 to december, 1995) or the extended term (september, 1994 to december, 1995). he did, however, say: "although i recognise that there may be potential for the abuse of the exemption by fixed-term contracts being extended repeatedly, i am not persuaded that that justifies giving the statutory wording a gloss which otherwise it could not bear. employees must give their consent to the extensions and to the waivers, though i accept that they may at times have little choice if they are to keep their jobs. but ultimately it is for parliament to correct if this interpretation of the existing statutory language is seen to lead to abuse. ,,49 it should be noted, however, that in cragg the e.at. held that in the first instance the contract must be for a term of two years or more and that it is not permissible to aggregate successive terms so as to amount, in that case, to a contract of two years or more. iv. developing european law although there have been a number of attempts by the european commission, dating back to the early 1980s, to regulate various forms of atypical work, these have been largely unsuccessful because of the need for unanimity and objections raised by both the united kingdom and danish governments.50 the only measure to be successfully adopted was directive 91/383,51 the purpose of which is to ensure 49 ibid at 299, para. 38. 50 nine draft directives were put forward by the commission between 1982 and 1990. see m. jeffrey, "not really going to work? of the directive on part-time work, 'atypical work' and attempts to regulate it" (1998) 27:3i.l.j. 193. 51 council directive 91/383/eec of 25th june, 1991 supplementing the measures to encourage improvements in the safety and health at work of workers with a fixed-duration employment relationship or a temporary employment relationship being based on article 118a, which is 59 the denning law journal that those working under either a fixed-tenn or a task contract are afforded the same level of health and safety at work erotection as that of other workers in the user undertaking and/or establishment. 2 however, following further unsuccessful attempts at agreement on regulating "atypical working" on a whole-community basis, in 1995 the commission utilised the social dialogue procedure agreed under the social policy agreement annexed to the maastricht treaty, from which the united kingdom had "opted-out," in order to progress the issue. 53this procedure resulted in an agreement limited to part-time workin~ and under the procedure laid down in what is now article 139 of the e.c. treaty, 4 was adopted as a directive.55 pending the coming into force of the amsterdam treaty the directive was extended to the united kingdom by an extension directive. 56 in the preamble to the agreement on part-time, working the social partners stated that "it is the intention of the parties to consider the need for simil'lf agreements relating to other forms of flexible work." negotiations commenced in march, 1998 and a draft framework agreement on fixed-term work was reached in january, 1999 and following approval of the respective social partners' statutory bodies a framework agreement was concluded in march, 1999.57the agreement was subsequently adopted as a directive,58 and this brings into effect the framework subject to qualified majority voting in council 52 see supra n.5 at p.14. 53 protocol 14 on social policy. following the u.k. agreement to "opt-into" the agreement on social policy it was incorporated into the treaty of amsterdam, which came into force on 151 may, 1999, from which time the agreement on social policy, as articles 136-139, forms part of the new treaty. s4 formerly article 4.2 of the social policy agreement. 55 directive 97/81fec of 15'hdecember, 1997 concerning the framework agreement on parttime work concluded b~ u.n.i.c.e., c.e.e.p. and the e.tu.c., to be implemented in member states no later than 20t january, 2000. see now the part-time workers (prevention of less favourable treatment) regulations 2000, s.i. 2000/1551. s6 council directive 98/23fec of 7'hapril, 1998, article 2 of which specifies that it is to be implemented in the uk. by 7'hapril, 2000. the original directive, 97/81iec, which is to brought into force by 20'h january, 2000, does not extend to the united kingdom. s7 see irlb 588, (march 1998) at pp.14-17 and ids employment europe 449, (may 1999) at pp.10-16. for discussion of the potential domestic implications of this measure see p. lorber, "regulating fixed-term work in the united kingdom: a positive step towards workers' protection" (1999) 15:2 the international journal of comparative labour law and industrial relations, at pp.121-135. 58 directive 1999170lec concerning the framework agreement on fixed-term work concluded by e.t.uc., un.i.c.e. and c.e.e.p., formerly approved by the council on 28thjune, 1999. 60 fixed-term contracts agreement on fixed-term work, the purpose of which is two-fold, as stated in clause 1: "(a) improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination; (b) establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships" and sets out to do so by application of the principle of non-discrimination. to this end clause 4( i) provides that fixed-term workers shall not be treated less favourably than comparable permanent workers, which means a worker in an employment relationship of indefinite duration, solely because they have a fixed-term contract or relationship. however, as with the agreement on part-time work, different treatment can be justified on objective grounds. in addition, the principle of equal treatment is subject to the principle of pro rata temporis (clause 4.2) so that the principle of equal treatment may be achieved by rights being in proportion to the hours worked. where there are periods of qualifying service for particular conditions of employment these are to be the same for fixed-term and permanent workers, differences are, however, permitted where these are justified on objective grounds. employers are required to ensure that fixed-term workers have the same opportunity to secure permanent positions as other workers and to provide information about vacancies (clause 6.1). employers are also required, but only as far as possible, to facilitate access to training opportunities in order to enable fixedterm workers to enhance their skills, career development and occupational mobility (clause 6.2). the agreement applies to all fixed-term workers, with the exception of those placed by a temporary work agenc/9 but provides for derogation in so far as those undertaking vocational training or apprenticeship schemes, or employment contracts concluded within the framework of a public or publicly-supported training scheme are concerned (clause 2.2). the definition ofa fixed-term worker extends beyond the existing united kingdom definition, as developed through the case law, in that in addition to applying to those working under an employment contract, it also applies to an employment relationship where this is entered into directly between an employer and a worker. in addition, the contract is "fixed-term" not only where the relationship is determined by reference to a specific date but also by other objective criteria, including the completion of a specific task, or the occurrence of a specific event. s9 see preamble to the agreement which is annexed to directive 1999/701ec. 61 the denning law journal v. summary the position that emerges from the united kingdom domestic case law outlined above now appears to be that, in so far as unfair dismissal is concerned, where a contract is extended for a period ofless than a year it can still be a contract for a year or more for the purpose of section 197( i), thus permitting a waiver to be valid, since it is the whole period of the contract which is to be considered: an extended term being part of the original contract as envisaged by section 95(1)(b). indeed, it is argued that the cases permit the initial term of the contract to be for less than a year, gaining the status of a contract for a year or more by extensions that cumulatively amount to a year or more, provided only that the extension is on the same terms as the original contract. this means that relatively short term contracts are capable of amounting to fixed-term contracts when looked at cumulatively. quite where this leaves the law in so far as redundancy is concerned is unclear. of the cases discussed above only open university v. triesman60 and housing services agency v. cragl1 concerned a claim for a redundancy payment in the face ofa waiver. triesman, in which the e.at. adopted the "denning test," has been dismissed as a simplistic judgment, as noted by the court of appeal in kellyphillips, and by expressly agreeing with the decision and reasoning of the northern ireland court of appeal in mulrine v. university of ulster62 it is argued that the court was, by implication, disagreeing with the reasoning in triesman. in cragg although the e.at. rejected the application of the "denning test" to cases of redundancy, the court held that in the first instance the contract must be for a term of two years or more and that it is not permissible to aggregate successive terms so as to amount to two years or more. in formulating the "final contract" test in british broadcasting corporation v. ioannou63 lord denning expressed the view that distinguishing between "renewal" and "re-engagement" under a new contract of employment was "to fine a distinction for ordinary mortals to comprehend." as recognised by lord justice macdermott in mulrine v. university of ulster,64 the consequent "denning" or "final contract" test had the advantage of simplicity in that it avoided the "drawing of fine distinctions 60 supra n.3 i. 61 supra n.37. 62 supra n.14. 63 supra n. 13. 64 supra n. 14. 62 fixedterm contracts between extensions which are renewals and those which are not but are mere reengagements." subsequent case law, in moving away from the denning test" has demonstrated that the distinction is indeed "too fine" to comprehend. this is an area which is of concern on a practical level to employers and employees alike and the lack of clarity demonstrated through the case law discussed above is unhelpful, undesirable and confusing. it now appears to be so confused that it would clearly benefit from an appeal to the house of lords in order to clarify the law and it is argued that at a time of concern to simplify and speed up tribunal proceedings, as evidenced by the employment rights (dispute resolution) act 1998, such lack of clarification will inevitably lead to litigation, the outcome of which will be unpredictable.65 in the meantime, however, in the white paper fairness at work the government made the point that whilst fixed-term contracts allow employers to engage people to work on short-term tasks or jobs which have a fixed duration, there is potential for abuse in that some employees are obliged to accept fixed-term contracts and to waive their employment rights for what are really open-ended jobs. 66 of the three options identified "for tackling this problem," promoting best practice by encouraging employers to limit the use of waivers; restricting the waiver to redundancy payments; complete prohibition of waiver clauses; the option favoured is expressed as "prohibiting the use of waivers for unfair dismissal but allowing them for redundancy payments," the reasoning being that: "[s]hort-term workers know when they start work that their job will come to an end on an agreed date and do not therefore have the same claim for redundancy compensation when it finishes. in contrast, such employees can reasonably expect to be as protected against unfair dismissal as permanent employees. ,,67 following a period of consultation this preferred option is now contained in the employment relations act 1999, section 18. which provides for the repeal of the e.r.a. 1996, section 197, and thus the ability to "opt-out" of the right to bring proceedings for unfair dismissal. section 18(1)-(5) of the 1999 act was brought into force on 25th october, 1999 for dismissals where the effective date oftermination 65 see case note on the court of appeal decision in b.b.c. v. kelly-phillips r white, "waiver of statutory rights in fixed term contract" (1998) 27 i.l.j. 238 at p.241. 66 supra n. 10. 67 ibid at para. 3.13. 63 the denning law journal falls on or after that date.68 however, waivers will remain valid in respect of the right to seek a redundancy payment and in relation to unfair dismissal where the effective date of termination falls on or after 25th october, 1999 where the fixedterm contract, or the renewal or most recent renewal, and the waiver were entered into before that date. there is a complete lack of protection in the united kingdom against abuse in the use of fixed-term contracts, in regard to both the initial engagement and to successive renewals. in addition, continuation of the ability to "opt-out" of the right to receive a redundancy payment is unique to those working under a fixed-term contract. whilst at the level of the european communities the framework agreement envisages the "normalisation" of temporary work by the introduction of the principle of non-discrimination "unless different treatment is justified on objective grounds, ,,69 it does not challenge the spread of such contracts nor provide the "fully-fledged scheme of portability of entitlement" which murray argues needs to recognise a whole range of working arrangements, conditions and rights. 70 nevertheless, where there are no equivalent legal measures to prevent abuse from the successive use of fixed-term contracts, under the framework agreement member states are required to introduce either measures providing for a test of objective justification for renewal, the maximum total duration of successive fixedterm contracts or the number of renewals and to determine under what conditions fixed-term contracts shall be regarded as "successive." since the frari1ework agreement is drafted along similar lines to the framework agreement on part-time work, implementation of the principle of less favourable treatment may well proceed in the same way as that for part-time workers, provisions for which are contained in sections 19-21 of the employment relations act 1999. section 19 provides for regulations to be made for the purpose of securing that persons in part-time 68 the employment relations act 1999 (commencement no.2 and transitional and saving provisions) order 1999. the first commencement order made under the 1999 act brought into force, inter alia, s.18(6) which rectifies an oversight whereby dismissals for a reason falling within the e.r.a. 1999, s.99 (pregnancy or childbirth) and s.104 (assertion of a statutory right) were the only two automatically unfair dismissals where employees could waive their unfair dismissal rights. 69 it should be noted that this is in the context of what many might regard as a controversial proposition set out in the preamble to the agreement to the effect that "whereas employment contracts of an indefinite duration are a general form of employment relationships and contribute to quality of life of the workers concerned and improve performance." 70 j.murray, "normalising temporary work: the proposed directive on fixed-term work" (1999) 28:3 i.l.j. at pp.269-275 (september). 64 fixedterm contracts employment are treated no less favourably than persons in full-time employment for the purposes of implementing directive 97/81/ec on the framework agreement on part-time work and, following consultations, for the issuing of a code of practice. a timetable for implementing these provisions rests with the secretary ofstate.71 whilst the framework agreement.on fixed-term work excludes those placed by a temporary work agency at the disposition of a user enterprise, the preamble expresses "the intention of the parties to consider the need for a similar agreement relating to temporary agency work." domestically, principally because of a lack of mutuality and the casual nature of the relationship, agency workers have been held not to be in an employment relationship with their agency,72 nor with the organisation to which they are assigned.73 they have thus been excluded from the main bulk of employment protection rights that apply only to those working under a "contract of employment." however, the court of appeal recently held that, notwithstanding that a temporary worker did not have employee status under his general terms of engagement, he can have the status of employee of the employment agency in respect of each assignment actually worked, bringing agency workers into the definition of fixed-term worker. 74 although at this stage reform in relation to fixed-term contracts has been woefully limited, the trend domestically has been towards an extension of the "floor of rights" to "atypical workers." both the national minimum wage act 1998 and the working time regulations 1998, as well as the public interest (disclosure) act 1998, which provides protection for in the event of a "protected disclosure," extend beyond the normal narrow definition of "worker" or "employee.,,75 the government signalled an intention in fairness at work to "similarly extend the coverage of some or all existing employment rights,,76 and the e.r.a. 1999, section 23, represents the vehicle for doing this in that it gives the secreta?; of state powers to extend employment rights contained in the main statues 7 to individuals not currently 71 the employment relations act 1999 (commencement no.2 and transitional and saving provisions) order 1999. 72 wickens v. champion employment [1984] l.c.r 365, [eat). 73 construction industry training board v. labour force ltd. [1970] 3 all e.r 220, [h.c.). 74 hmcmeec an v. secretary of state for employment [1997] i.rl.r. 353, [c.a.]. 75 the national minimum wage act 1998, s.34; working time regulations, reg. 36; the employment rights act 1996, s.43k, inserted by the public interest (disclosure) act 1998, s.230. 76 supra n.lo at para. 3.18. 77 the trade union and labour relations (consolidation) act 1992; the employment rights act 1996; the employment relations act 1999 and any instrument made under s.2(2) of the european 65 the denning law journal covered by the various statutory protections, such as agency and casual workers. in any event, the successor to the commission's 1998-2000 social action prograrnme78 is widely expected to include specific provisions touching upon outsourced work and agency workers and these matters have already been addressed in the commission's recent study into termination of the employment i· hi 79re atlons p. communities act 1972. 78 com (98) 259 fmal of 29th april, 1998. 79 termination of employment relationships: legal situation in the member states of the european union, april, 1997. 66 chapter 3 starting out in the law the denning law journal 265 book review ballot box to jury box: the life and times of an english crown court judge john baker (waterside press winchester 2006) pp 210, paperback, isbn 1 904 38019 0, price £20.00 james slater∗ john baker’s autobiography is a personal history and narrative of an interesting and successful legal career embracing practise as a solicitor and at the bar, and also the bench. it is a story told with candid honesty and charming humility. a short review, such as this, prevents me from summarising the enormity of the wealth of biographical information and insightful comments and observations on the law drawn from personal experience, but i hope to give something of the flavour of john baker’s life and contribution to law before focusing on the final two chapters, where judge baker tells the story of his judicial career. the opening two chapters are, as one might expect of an autobiography, predominantly personal. born in 1925 in india, we learn of john baker’s family background, including his father’s abandonment of the family, a great shock to his mother. he would never see his father again. we learn of his education (and his grandfather’s generous financial support of that education), all the way through to professional qualification as a solicitor, his national service in the navy, and his time at oxford university (wadham college), where he read law and eventually graduated with a third, a not wholly auspicious start to what blossomed into a varied and highly successful legal career. john baker’s talents of oratory were to take him in several directions, one of which to the hustings, standing three times, (albeit unsuccessfully), as liberal mp, in 1959, 1964 and 1970. the next three chapters detail his legal career first, as a solicitor and his work both in crime and libel, and time spent in politics and the liberal party and second, with his switch from a career as a solicitor to one at the bar. ∗ ba (sussex), llm (harvard), phd (birmingham), lecturer in law, the university of buckingham. the denning law journal 266 chapter 6 takes up the story of his time at the bar, where he predominantly practised criminal law. chapters 7 and 8, the final two chapters, tell of john baker’s time as a judge. john baker decided in 1972 to apply for the newly created post, (by the courts act 1971), of part-time recorder, and on 1st january 1972 he was appointed. from this beginning, john baker would go on to become a circuit judge, and eventually resident judge at kingston crown court. he regularly sat as a judicial member of the queen’s bench division of the high court, and ruled, inter alia, on criminal and family matters. at a time when the government is exercising ever more control over judges in their sentencing decisions, john baker subscribes firmly to the notion that discretion in such matters is a vital function of a judge: “what is important is to have a wide judicial discretion so that the punishment is right for the particular case, balancing the crime, the offender and the victim.”1 there is certainly much common sense in this statement, but if john baker’s book suffers from any shortcoming, it is that this is an area left somewhat under analysed. the book however is not without controversy; baker argues that the incorporation of the european convention of human rights into english law may well result in the criminalisation of standing by whilst a women is raped;2 he is concerned too about inconsistency in parole decisions.3 he is critical as well of how drunk driving was dealt with prior to the introduction of breathalysers and reveals the process to have been amusingly archaic.4 from chapter 7 we are to discover something of the mildly anarchic quality of the judicial work allocation system that operated whilst john baker was on the bench. for example, john baker had always done a certain amount of family work and makes clear that he never wanted to do criminal work predominantly. yet, out of the blue in july 1991, he received a letter from mrs justice bracewell, who had, the year before, been appointed to the family division, informing him that his name would not be amongst those sent to the lord chancellor to do family work. john baker’s attempt to explain that he might well be qualified to do some family work seems to have 1 p 154. 2 p 105. 3 p 171. 4 p 35. the denning law journal 267 fallen on deaf ears.5 in light of experiences such as these, the reforms of the constitutional reform act 2005 are to be welcomed. it is also worth noting john baker’s reference to what he terms his “somewhat unsmooth relationship”6 with the former lord chancellor’s department, with whom he would, on occasion, find himself in conflict, for example, over questions such as the maximum number of days lay magistrates could sit.7 such matters may seem trivial, but in fact are of vital importance for the daily functioning of the courts. chapter 8 concludes the story of john baker’s judicial career. there are more accounts of the criminal law cases that john baker dealt with, from the very serious, such as abuse by those caring for the mentally handicapped,8 to the more amusing, such as john mcvicar defending himself in an assault case.9 it also relates a growing interest in the relationship between sport and law, and describes his desire to get a course on this subject off the ground at kingston college for further education, where john baker is president of the law department and where he gives occasional lectures.10 his full time judicial career came to a close on the 3rd of april 1998, but he was able, at the discretion of lord irving, to sit part-time until just before his seventy-fifth birthday.11 perhaps this exercise of discretion in his favour by the then lord chancellor was smoother than his relationship with the then lcd. it is not possible to do justice to the wealth of interesting legal insight in john baker’s autobiography, not least his discussions, inter alia, of the effect that should be given to guilty pleas and the treatment of young offenders. this book is both interesting and entertaining. it is a testament to what is possible, a life in law and in politics, and careers as a solicitor, barrister and judge. 5 p 175. 6 p 188. 7 p 188. 8 pp 180-181. 9 p 182. 10 p 187. 11 p 198. the denning law journal 268 book review the deserted bank and the spousal equity *mary we/stead "... i would fain temper justice with mercy -justice to the bank, with mercy to the wife ..."l lord denning's closing words in national provincial bank v. hastings car mart were made in the context of that familiar dispute between a wife in occupation of the mortgaged family home and a bank, in circumstances where the husband had reneged on his mortgage agreement with the bank.2 since then, there has followed a plethora of decisions in which both banks and spouses, alike, hoped that judges would follow lord denning's idealism and realise the almost unattainable a satisfactory outcome for both parties. in the latter part of the 20th century, it is not merely spouses who continue to seek that quality of mercy which mrs. ainsworth sought from lord denning, but also quasi -spousal partners of both heterosexual and homosexual orientation who occupy the same, mortgaged to the bank, familial home. not surprisingly, justice to the bank and mercy to the spouse have remained elusive goals. this is not, merely, because the conflicting parties will almost certainly view the justice and mercy of any given situation in a partisan manner but as the law commission has also commented: "the present legal rules are uncertain and difficult to apply and can lead to serious injustice.") the accusation of palm tree justice, leveled at lord denning's approach • senior lecturer in law, buckingham law school, the university of buckingham. 1 national provincial bank v. hastings car mart [1964] ch. 665 at 691. 2 ibid. 3 sixth programme of law refoml (law com. no. 234). see also [1996] fam. law 696 where charles harpum, a law commissioner is reported as describing, in his address to the 1996 s.p.t.l. annual conference, the present law as uncertain, unfair, illogical and that it is not difficult to believe that the law commission cannot do better. however, the long awaited consultative document from the commission has not yet made an appearance. see also thompson, [1996] 154 conv. 685. 113 denning law journal in national provincial bank v. hastings car mart, has been viewed as an accurate assessment of much judicial thinking in this area of law.4 certain key decisions between 1970 and 1995 permit a cogent analysis of the means by which the courts have attempted to develop equitable principles relating to the resolution of claims to beneficial interests in family homes. the decisions appear to veer between judicial adherence to a strict interpretation of the rules, primarily based on the concept of the constructive trust, and a creative judicial manipulation of those same rules, in a manner more akin to proprietary estoppel. the perceived justice and mercy of any given situation would appear to determine, or be determined by, judicial interpretation of the concept. a strict legal interpretation of the principles tends to benefit lending institutions in that the familial partner is liable to be denied a right, which would bind third parties. by contrast, the creative estoppel based approach would appear to assist familial partners in acquiring a proprietary right.5 it must, however, be questioned whether either of these approaches have resulted in anything other than a continued lack of realism with regard to familial arrangements, on the one hand, and a scant respect for the economic realities of lending institutions on the other. the decisions have left both banks and the non-borrowing familial partner with a residue of uncertainty and considerable legal expenditure. any starting point for the analysis of the evolution and expansion of the constructive trust doctrine in this context must commence with the decision in gissing v. gissing.6 here, the house of lords attempted to give a definitive formulation of the elements required to ground a constructive trust of the family home. the language used by lord diplock is remarkably similar to that of proprietary estoppel. he accepted that such a trust is created. "...by a transaction between the trustee and the cestui que trust in connection with the acquisition by the trustee of a legal estate in land, whenever the trustee has so conducted himself that it would be inequitable to allow him to deny to 4 in national provincial bank v. hastings car mart lord denning m.r maintained that "...it is the way of english law to decide particular cases and then seek for the principle ..." see also e.g. springette v. defoe [1992] 2 f.l.r 388, in which dillon l.j. asserted that: 'the court does not as yet sit, as under a palm tree, to exercise a general discretion to do what the man in the street, on a general overview of the case might regard as fair..."[at p.393]. 5 the conflict between banks and family members is primarily confined to the context of secondary borrowing. in circumstances where the initial purchase of the property has been made by way of loan, the bank will normally take priority following the decision in abbey national v. cann [1991] 1 a.c. 56; see also bristol & west building society v. henning [1985] 1 w.l.r. 778. 6 [1971] a.c. 886. 114 the deserted bank and the spousal equity the cestui que trust a beneficial interest in the land acquired. and he will be held to have so conducted himself if by his words or conduct he has induced the cestui que trust to act to his own detriment in the reasonable belief that by so acting he was acquiring a beneficial interest in the land."? lord diplock drew the distinction between two types of transactions, which, in his opinion, would give rise to a trust of the beneficial interest. in the first type of transaction there is an express agreement that the parties should share the beneficial interest in the property. the person without legal title must then proceed to do some act to facilitate the property's acquisition. such an act may take the form of a contribution to the purchase price or the deposit or the mortgage payments or "make some other material sacrifice by way of contribution to or economy in the general family expenditure."s according to lord diplock, the beneficial shares are to be calculated in accordance with the express agreement of h . 9t e parties. is lord diplock's definition of this first type of transaction anything other than a slight variation of the doctrine of proprietary estoppel? it will be recalled that the canonical view of this doctrine is that it arises in circumstances where one party has been encouraged by the legal titleholder to alter her position to her detriment in the expectation of some entitlement in the property concerned. 10 the ensuing equity will be satisfied in whatever way the court deems to be appropriate, taking into account all the circumstances of the case. 11 in lord diplock's first category of constructive trust the expectation of the claimant is more specific; it relates to a share of the beneficial interest. his explication of the associated detrimental reliance is more restrictive; it must be of a direct or indirect financial nature. finally, his approach to the quantification of the share is confined to the nature of the express agreement rather than allowing the court complete discretion. in the second type of transaction, described by lord diplock, there is no express agreement to share the beneficial interest in the property. if the 7 ibid at p.905. 8 ibid. 9 ibid. ]0 see e.g. dillwyn v. llewelyn (1862) 4 de g.f & j. 517,45 e.r 1285; ramsden v. dyson (1866) l.r. 1 h.l. 129; willmott v. barber (1880) 15 ch. d. 96; taylors fashions ltd. v. liverpool victoria trustees co. ltd. [1982] 1 q.b. 133; pascoe v. turner [1979] 2 all e.r. 945; re basham [1986] 1 all e.r. 405; matharu v. matharu [1994] 2 f.l.r. 597. 11 see plimmer v. mayor etc. of wellington (1884) 9 app. cas. 699 at 714; crabb v. arull d.c. [1976] ch.179 at 189; griffiths v. williams (1977) 248 e.g. 947 at 949. 115 denning law journal parties have not applied their minds in any way to the issue, the court may not impute an agreement to them. 12 however, they: "...may well have formed a common intention that the beneficial interest in the land shall be vested in them jointly without having used express words to communicate this intention to one another; or their recollections or the words used may be imperfect or conflicting by the time d· .,,]3any lspute anses. in those circumstances the parties' intentions to share the beneficial interest, and the subsequent quantification of that interest, may be objectively inferred from their words or conduct on the basis of the reasonable man test. 14 lord diplock proceeded to outline those limited circumstances from which the court would infer a relevant intention. where the claimant's actions are confined to direct financial contributions to the outright purchase price of the property or to the initial deposit or legal expenses and nothing more, a resulting trust would normally arise. 15 the quantification of the claimant's beneficial share would clearly be inferred in direct proportion to the level of her financial contribution. however, lord diplock acknowledged that where the family home was purchased by way of mortgage loan, to limit the quantification of the beneficial share to a consideration of the initial contribution would be to ignore economic and social reality. he, therefore, extended the resulting trust principle and accepted that post acquisition conduct on the part of the claimant could also lead to an inference of an intention to share the beneficial interest, or of an intention to enhance the initial share if contributions to the purchase price or legal costs had already been made. in this context, lord diplock differentiated between direct and indirect contributions. he explained that direct contributions to the mortgage payments would lead to the inference of either intention. indirect payments towards the mortgage payments, by way of financial contribution to general household expenditure which would otherwise be met by the mortgagor so as to enable him to make the mortgage payments, would only be taken into account to give the claimant an enhanced share. 16 thus indirect contributions will be of no avail in those situations where a mortgage loan of one hundred per cent of the value of the 12 gissing v. gissing supra n.6 at 906. 13 ibid. 14 ibid. 15 see e.g. dyer v. dyer (1788) 2 cox. eq.cas. 92 at 93, 30 e.r. 42 at 43; pettit v. pettit [1970] a.c. 777 at 814; cowcher v. cowcher [1972] 1 w.l.r. 425 at 431. 16 gl~singv. gissing supra n.6 at p.907ff. 116 the deserted bank and the spousal equity property has been granted or where the claimant has made no initial contribution to the legal costs, and the mortgagor demonstrates an ability to finance both the mortgage payments and the general household d' 17expen lture. given lord diplock's empathetic appreciation of the social reality of familial behaviour,18 his differentiation between direct and indirect contributions seems excessively legalistic, as does his failure to take into account domestic contribution in inferring the relevant intention. 19 by contrast, in detennining quantification in the second type of transaction, lord diplock declined to base it solely on the parties' respective financial contributions to the mortgage payments, both direct and indirect. he accepted that the court must do its utmost to discover, if necessary by inference from conduct, the likely common understanding of the parties vis-a-vis their respective shares even though such an understanding might not have been expressly stated or even consciously formulated in words by either party. in the case of contributions to mortgage installments over a period of many years the level of the parties' contributions from their individual income is likely to change in accordance with the "the varying exigencies of family life to be expected during the period of repayment.,,20 for instance, the wife might have to forego earning money outside the home in order to take care of children and it might be possible to infer that their common intention at the time of acquisition of the familial home was that the beneficial interest should be held by them in equal shares and that each should contribute to the cost of its acquisition whatever amount each could afford at a given time. if, however, a subsequent reduction in mortgage payments is not attributable to a reduction in earnings due to motherhood or some other cause from which the man benefits as well, it might seem a more likely inference that the beneficial interest should be less than equal. lord diplock decided that it may even be possible to infer that, on acquisition, the parties made no agreement to quantify their respective shares but would wait until a later date such as the end of the mortgage period or sale and do so on the basis of their total respective direct and indirect financial input. if there is no evidence from which all inference with respect to quantification can he drawn, lord diplock concluded that, the court might have to apply as a rule oflaw, rather than an inference of fact, the maxim "equality is equity" and grant an equal share of the beneficial interest to 17 see e.g. bums v. bums [1984] 1 all e.r. 244. 18 gissing v. gissing supra n.6 at p.906. 19 cf the approach of the canadian courts, welstead, "domestic contribution and constructive trusts: the canadian perspective" [1987] denning l.j. 151. 20 gissing v. gissing supra n.6 at p.909. 117 http://www.ingentaconnect.com/content/external-references?article=0269-1922(1987)0l.151[aid=7390986] denning law journal both partners. these conclusions seems close to fulfilling the belief that "palm tree justice" rules in this area of law and a betrayal of the court's purported sincere belief that both the intention to confer a beneficial interest on the claimant and the quantification of that interest may only be inferred and not imputed. if there is no other evidence, it is difficult to see how the application of the equitable maxim of equality can ever be a more appropriate approach than inferring quantification from the party's respective financial contributions. for many years after gissing, the case law on constructive trusts of the family home was forced into two neat categories based on lord diplock's view of the two forms of agreement. those family litigants, who could coerce their circumstances into evidencing an explicit agreement, tended to succeed in acquiring an equitable interest in the family home. once they were able to show such an agreement, the nature of the detrimental reliance required was less onerous than for claimants maintaining an inferred agreement. these first category of claimants could claim as relevant detriment not merely direct financial contributions towards the property but also indirect financial contributions whether or not they had made any initial contribution to the property and regardless of the mortgagor's ability to repay the loan without this indirect financial contribution. substantial physical work on the property could also be claimed as a detriment. cooke v. head, is illustrative of this first type of agreement.21 the parties were cohabiting; they found land on which they decided to build a bungalow, title to which was in the sole name of the man. the property was funded by way of mortgage loan. he had, however, declared that the property was: "...as much hers as it is mine ...she has equal rights to it. she has put as much into that bungalow as i have.,,22 the female claimant carried out considerable physical work to the building of the property. the court of appeal accepted that a constructive trust had arisen on the basis of an express agreement followed by some other material sacrifice involving contribution to or economy in the general family expenditure. however, the court departed from the gissing approach, which based quantification in these circumstances on the explicit agreement. lord denning moved even closer to the estoppel principle and chose to exercise the court's discretion and take into account 21 [1972] 2 all e.r. 38. 22 ibid at pa2. 118 the deserted bank and the spousal equity all the circumstances of the case. the court proceeded to award the claimant one third of the value of the property in spite of the clear intention evidenced by the man's statement that they were to share it equally.23 a further example of the manner in which claimants have attempted to force their circumstances within the ambit of an explicit agreement is to be found in eves v. eves.24 here, the sole legal titleholder, mr. eves, had began to live with the claimant, a young woman aged nineteen. she took his name and gave birth to two children during their short relationship of four years. mr. eves had told her that he was buying a house for both of them and their children but that he could not put the house in joint names as she was under twenty-one; this was of course merely a devious ploy on his part. mrs. eves did substantial renovation work on the property including the wielding of a sledgehammer. lord denning accepted that the man's statement was an explicit indication of his intention to share the beneficial interest in the property with the claimant. the court of appeal exercised its discretion and awarded the claimant one quarter of the equity in the property but without explanation how quantification had been reached. once again it must be assumed that the discretionary principles of estoppel were used to determine quantification, particularly in the light of lord denning's view that as the claimant had remarried, "this share would i hope be regarded by her as more in the nature of provision for the children than for her. •.25 few claimants have been fortunate enough to be able to bring the haphazard nature of their familial arrangements within the categorisation of so-called explicit agreements. they have been forced, with little success, to attempt to widen the category of payments, outlined in the second category of transaction in gissing, from which a relevant intention to share the beneficial interest might be inferred. in bums v. bums, for example, a long term female cohabitant had made no initial contribution to the purchase price or legal costs of acquiring the property but had made generous financial contributions to household expenditure.26 she argued that such contributions should equally give rise to an inference of a relevant intention to share the beneficial interest as they would had she made a financial contribution to the deposit or legal costs. the court of appeal rejected this argument. perhaps it was influenced in its view by the fact that the claimant's partner maintained that he was able to fund the mortgage payments without her help. in spite of his benefiting in a more general way by her financial contributions to the 23 wachtel v. wachtel [1973] 1 all e,r. 829. 24 [1975] 3 all. e.r. 768. 25 ibid at p.772. 26 supra n.17 at p.252; see also hayton, [1990] conv. 370. 119 denning law journal household, she was deemed to be simply generous spirited rather than allowing the quasi-matrimonial home of nineteen years to be acquired. may l.j. acknowledged that: " over a very substantial number of years she may have worked just as hard as the man in maintaining the family, in the sense of keeping house, giving birth to and looking after and helping to bring up the children of the union.,,27 the court of appeal accepted that the outcome of its rigid application of the gissing principles left the claimant in a difficult and harsh situation but that it was for parliament and not the courts to redress any perceived injustice. some two years later, however, in grant v. edwards, there were signs of an increasing awareness of a change in familial arrangements and social expectations and that it was perhaps up to the courts to address the problems in an equitable, rather than an excessively legalistic, manner.28 here, the female claimant had cohabited with the defendant in the family home, title to which was in his sole name. the defendant told her that her name would not be put on the title because it might prejudice the outcome of divorce proceedings between the claimant and her husband. this, according to the court of appeal was not so much an explicit agreement, but rather raised the distinct inference that there was a clear understanding between the parties that they were to share the beneficial interest in the house. otherwise no excuse for not putting her name onto the title would have been needed.29 the court also accepted the fact that insurance monies received after a fire damaged the property were paid into a joint account was further evidence of an inferred agreement to share the beneficial interest. this approach suggests a merging of the two categories of agreements outlined in gissing and an extension of the type of behaviour, which might give rise to the inference of an implicit relevant agreement.30 subsequently the woman had made substantial payments towards general household expenses and housekeeping. the man could not have made the mortgage payments had she not done so. in grant v. edwards, browne-wilkinson v.-c. explained that where the 27 ibid at p.264ff. 28 [1986] 2 all e.r. 426. 29 ibid at p.433. 30 waite l.j. in midland bank v. cooke [1995] 4 ali e.r. 562, suggested, at 573, that grant v. edwards was a decision based on the doctrine of proprietary estoppel rather the doctrine of constructive trusts. see also the comments of browne-wilkinson v.-c. in constructive trusts and unjust enrichment (holdsworth club of the university of birmingham, 1991). 120 the deserted bank and the spousal equity claimant had proven an explicit agreement or an inferred agreement (albeit on the basis of a wider category of behaviour than discussed in gissing), prima facie, the interest of the claimant will be that which the parties intended. however, he suggested that: " ...the law of proprietary estoppel may again provide useful guidance. if proprietary estoppel is established, the court may give effect to it by giving effect to the common intention so far as may fairly be done between the parties. for that purpose equity is at its most flexible .... identifiable contributions to the purchase of the house will of course be an important factor in many cases. but in other cases, contributions by way of labour or other unquantifiable actions of the claimant will also be relevant. ,,31 the principles of constructive trusts and proprietary estoppel appear to have been elided 32 thus leaving open the way for a more realistic evaluation of all familial behaviour in determining the satisfaction of the claim and not merely the parties' intentions with respect to the direct or indirect financial contributions referable to the acquisition of the property. although there was a brief return to the rigid dual categorisation of agreements in lloyds bank v. rosset,33 the trend towards a more benevolent approach to familial arrangements prevailed in midland bank v. cooke.34 waite l.j., in a judgment, more social than legal in content, acknowledged the uncertainties and difficulties in interpreting and applying the rules surrounding the concept of the constructive trust. he demonstrated his awareness that home ownership has become socially and economically significant and almost totally dependent on loans from mortgagee banks. in 1971, mrs. cooke, the second defendant, had contributed £500 towards the purchase price of the family home. the money came from her share of a wedding present from her husband's parents. the balance of the purchase price had been provided by way of mortgage loan of £6,540 from a building society and £1,000 from the husband's personal savings. there was no explicit agreement between mrs. cooke and her husband that she should have a beneficial share in the family home. indeed, both she and her husband said that they had no recollection of discussing at the time of acquisition the precise arrangements in relation to the house; they 31 grant v. edwards [1986] supra n.28 at p.439; see also eekelaar, [1987] conv.93.; brownewilkinson v.-c. ibid. 32 hayton, [1993] 109 l.q.r. 485. 33 [1990] 1 all e.r. 1111. 34 [1995] 4 all e.r. 563. 121 denning law journal were simply happy at setting up home together. mrs. cooke made no direct payments towards the mortgage payments from her income but did pay for general household expenditure. there was no evidence that these payments had enabled her husband to make the mortgage payments. she had also engaged in work on the property and garden in the form of redecoration, alterations, improvements and repairs. the judge at ftrst instance held that the wife had acquired a beneficial interest of 6.47 per cent behind a resulting trust, based on her minimal ftnancial contribution to the purchase price. he rejected any inference of an agreement that her share should be enlarged because of her subsequent indirect financial contributions and improvements to the property. waite l.j. acknowledged: "the difftculties which these cases pose for the honest recollections of witnesses and the barrenness of the terrain in which judges and district judges who try them are required to search for the small evidential nuggets on which issues as to the existence -or the ~roportionsof beneficial interest are liable to depend." 5 whilst conceding that he was bound by the decision in gissing, waite l.j. ' s dicta suggest a merging of the two categories of express and implied agreements, particularly with respect to quantiftcation. he stated that once the relevant intention to found a beneftcial interest came into existence either by way of an express agreement or by inference, the duty of the judge is: "... to undertake a survey of the whole course of dealing between the parties relevant to their ownership and occupation of the property and their sharing of its burdens and advantages. that scrutiny will not confine itself to the limited range of acts of direct contribution of the sort that are needed to found a beneficial interest in the ftrst place. it will take into consideration all conduct, which throws light on the question what shares were intended. only if that search proves inconclusive does the court fall back on the maxim that 'equality is equity. ",36 35 ibid at p.567. 36 cf springette v. defoe supra n.4, in which dillon l.j. declined to grant an enhanced share to the claimant. he maintained that the presumption of resulting trust based on the claimant's initial contribution should not be displaced where there was no evidence of an agreement as to how the parties would share the beneficial interest. see also mchardy & sons (a firm) v. warren [1994] 2 f.l.r. 338 in which dillon l.j. took the opposite approach and declared that 122 the deserted bank and the spousal equity waite l.j. accepted that the majority of young people agree to set up joint homes in a spirit of mutual trust and hope of a permanent relationship and do not concern themselves with legalistic matters relating to the quantification of beneficial shares in their family home should they decide to part at some uncertain point in the future. to do so would be a contradiction of that trust and hope. in his attempt to quantify the defendant's share of the beneficial interest, waite l.j. recognised, inter alia, the significance of her child care and career as a teacher, her signature to consent forms accepting joint and several liability for loans for the husband's business,37 her home maintenance and improvements.38 furthermore he acknowledged for the first time in enrlish law, in the context of constructive trusts, the additional fact "".that this was a couple who had chosen to introduce into their relationship the additional commitment which marriage involves ...,,39 he concluded that the inferred intention of the husband and wife was to share the beneficial interest in equal shares. there appears to be a very short judicial step from taking into account all the circumstances of family life for the purposes of quantification of the familial partners' beneficial shares in the home, to taking them into account for the purposes of inferring the relevant intention and detrimental reliance to ground an intention to share the beneficial interest in the first instance. such an approach suggests a merging of the doctrines of proprietary estoppel and constructive trusts. however admirable the efforts of the judiciary to understand the nature of familial relationships and, thereby, ultimately escape the rigid, unreal search for the elusive common intention, is it fair to grant an equitable interest which has the potential, as an overridin~ interest, to bind banks which lend on the security ofthe family home? 0 waite l.j. acknowledged in midland bank v. cooke that in the joint venture of a relationship the parties share the benefits and burdens of financial success and failure. if the discretionary approach of the judiciary continues it seems increasingly likely that it will be banks who bear the burden of the parties held the beneficial interest equally even though there was no evidence of how the farties intended to hold their shares. 7 it would seem that mrs. cooke was remarkably fortunate; it was held at first instance that her consent was obtained by undue influence and the bank could not benefit by her consent ~et her consent was viewed in a positive way in quantifying her interest. s see also hammond v. mitchell [1991] 1 w.l.r.1127; drake v. whipp [1996] 1 f.l.r. 826 39 midland bank v. cooke supra n.30. 40 in the absence of overreaching, (see e.g. city of london building society v. flegg [1988] a.c.54), s.70 (1)(g) of the land registration act 1925 governs the priorities in registered land (see e.g. williams & glyn 's bank v. boland [1981] a.c. 487) whilst the doctrine of notice has a similar effect in unregistered land, (see e.g. kingsnorth trust v. tizard [1986] 2 all e.r.54). 123 denning law journal financial failure rather than members of the family.41 they will not only have to find out whether there are additional members of the family living in the about-to-be-mortgaged property but they will also have to examine all the past and present circumstances of the familial entourage before deciding whether to lend or not. banks are commercial organisations governed, inter alia, by duties to their shareholders and clients, both borrowers and lenders. there is an inherent tension between lending money to purchasers of family homes, and doing so in a manner, which safeguards commercial interests. this tension must be acknowledged. protecting homeowners rather than banks may seem socially desirable but ultimately it is homeowners who will pay the price in terms of higher borrowing costs. a totally new approach to the problems experienced by lending banks and family members, at each other's hands, is required if the present judicial manipulation of concepts is to be discontinued.42 solutions appropriate for intra-familial disputes are not often appropriate for disputes between banks and members of families.43 one possible solution to the former type of dispute would be an explicit acceptance of the judicial merging of the doctrines of proprietary estoppel and constructive trusts. once an expectation followed by a detrimental reliance is established, an inchoate right will arise. the right will only crystallise once the court has granted a discretionary remedy, which may include the grant of a constructive trust, based on all the circumstances of the case.44 because the right dates from the time ofthe court hearing it will not bind third parties. the process would not be dissimilar to the courts' approach to the division of matrimonial assets on divorce.45 banks lending money require greater certainty. they have already been forced into setting up elaborate mechanisms to deal with the problems of familial partners who, having waived their equitable rights, seek to rely on 41 see reid, "the legal implications of williams & glyn's bank v. boland" in gower, problems of conflict of interest in the matrimonial home (1981) at p.24. 42 see [1996] fam. law 696 where a law commissioner, charles harpum is reported as having suggested four possible solutions to the difficulties; a twofold approach which would combine a more precisely defined intention based constructive trust coupled with an adjustive regime; a totally adjustive regime; a property law regime based on rules defining length of relationship, the existence of children, and direct economic contributions and finally, the encouragement of explicit agreements between family members which would be required to be registered at the land registry. he concluded that there are "...no perfect solutions, merely least awful ones." 43 see browne-wilkinson v.-c., supra n.30. 44 see e.g. the comments of lord denning m.r. in hussey v. palmer [1972] 3 all e.r. 744 at 748; in re basham (deed.) supra n.lo at p.1504; pearce v. pearce [1977] 1 n.s.w.l.r. 170. 45 see matrimonial causes act 1975 s.25. 124 the deserted bank and the spousal equity the doctrine of undue influence.46 nevertheless, they remain at risk of discovering an overriding interest under section 70(1)(g) of the land registration act 1925 in circumstances where it would have been possible to have knowledge of the owner of that interest. has the time arrived for the abolition of such overriding interests?47 the 1925 legislators, clearly, did not envisage the rise in constructive trusts and the consequent increase in claimants of overriding interests some seventy years later. familial partners may already register their equitable proprietary rights as minor interests.48 why should they be given a second chance of pleading an overriding interest? it has been frequently argued that family members do not register their informally obtained rights because registration appears as an aggressive act towards the legal titleholder and would destroy the mutual trust and hope between the parties that their relationship will endure and not require legal protection.49 this is; however, a paternalistic approach, which attempts to protect family members in times of economic misfortune without the acknowledgement that they, not infrequently, obtain, benefits from their partners who borrow in times of economic success. 50they should be positively encouraged to register their rights. once it becomes accepted common behaviour to register rights or risk their loss for lack of registration, it will cease to be regarded as a hostile act.51 if paternalism is accepted as an appropriate vehicle for the protection of the family home, it may equally require recognition that the family home is an inappropriate asset for the purpose of securing borrowings other than for the initial purchase of the property itself. in those circumstances new legislation might be enacted which would designate family homes as safe havens for those who live there as members of the same family.52 inherent in such legislation would be rules governing the use of the family home as security to obtain further borrowings. family members would indeed be 46 see e.g. barclays bank v. o'brien [1994] 1 a.c. 180; bank of credit & commercial international v. aboody [1990] 1 q.b. 923; c.1.b.c. v. pitt [1994] 1 a.c. 200; midland bank v. greene [1994] 2 f.l.r. 827. 47 see law commission, property law:second report on land registration (law com. no. 158, 31st march, 1987, para 2.7.) 48 land registration act 1925 s.3(xv). 49 see the comments of waite l.j. in midland bank v. cooke supra n.34 at p.575; see also hayton, supra n.26 at p.387. 50 see the comments of waite l.j. in midland bank v. cooke supra n.34 at p.575. 51 see kantorowicz (1937) 53 l.q.r. 326; see also (1984) 272 e.g. 1295. 52 a possible model for such legislation could be ss.62 & 63 of the family law act 1996 which define a wide variety of familial relationships deemed worthy of protection by way of occupation orders in the family home. see also the joint family homes act 1964 which was enacted in new zealand to grant limited protection, against creditors, to those familial members who have settled their family home under the act. 125 denning law journal truly protected and would have to find other means of borrowing to fund all those ventures which are currently dependent on remortgaging the family home. until a satisfactory statutory solution is reached in resolving the tension between social justice for family members and protection of the economic interests of lending banks, the ideological struggle between "mercy for the wife and justice for the bank" will remain reflected in judicial interpretation of the doctrine of constructive trusts. 126 kent and anor the denning law journal 203 case commentary kent and anor v kavanagh and anor [2006] ewca civ 162 section 62 fills a black hole judith bray* the facts for many, the right to use a small path bordering one’s house may seem hardly worth a day in court, let alone the additional costs of an appeal. this case, recently decided in the court of appeal, rested on such an issue. it allowed the court of appeal to review the law relating to the grant of an easement and in particular has served to clarify the law concerning the rule of wheeldon v burrows1 which allows certain quasi-easements to pass on purchase of property. the facts are relatively straightforward. mr and mrs kent and mr and mrs kavanagh lived next door to each other in a small terrace in dovercourt road se 22. a small pathway ran between their two houses and it was accepted that the boundary of each house ran mid-way between the two properties. the width of the whole path was approximately three feet. mr and mrs kent claimed rights over the half of the pathway that did not belong to them. the path was used as access to their back gardens and without the right to pass over the whole path it was of limited use to them. the value of the path had been recognised when the houses had first been built in 1907. evidence was given of a surveyor’s report dated 1909 which had referred to the path. “…i think it very important that, even in small houses such as these, the main entrance to the street should not be used by tradesmen, street hawkers, etc for the entrance of stores and fuel or for carrying out dust, refuse etc...” the properties had been originally leased to the occupiers but both had been purchased under the leasehold reform act (lra) 1967.2 the houses had changed hands several times since the enfranchisement under the act but although the path had been in use at various times by different owners no * llb , llm (lond), barrister, lecturer in law, the university of buckingham. 1 (1979) 12 ch d 31. 2 the leasehold reform act 1967 allowed tenants under long leases at low rents to acquire the freehold or a new lease by paying for the land but not for the house. the law was based on the principle that the tenant owned the house because of the length of the lease and the landlord could only claim payment for the land. the denning law journal 204 mention was made on the conveyance of the property in january 2001 from mrs fishlock, the previous owner, to mr and mrs kent. it was in this climate of uncertainty that the action arose before the courts. county court the case was heard at first instance at the central london county court where mr and mrs kent claimed that an easement arose in their favour based on various grounds. these included prescription, which is based on long use, necessity, which relies on proof that property would be landlocked without access being granted and section 62 of the law of property act (lpa) 1925 as well as the rule in wheeldon v burrows. the claim for prescriptive use was based on the doctrine of ‘lost modern grant’.3 any claim by prescription must be ‘nec vi, nec clam and nec precario’4 which means that it must not be based on violence, or only have been exercised in secrecy or with permission of the legal owner. in this case there was evidence that there had been permission granted at one stage by the predecessor in title of the kavanaghs so this claim by the kents was doomed to fail. the claim for an implied grant under necessity was also unsuccessful since there was access to the property through the front door and at one stage through the garage; it may have been inconvenient but it was still access. in any event, a claim for an implied grant under necessity has always been confined to cases where there is simply no other proper access to the property.5 the claims under the rule in wheeldon v burrows and section 62 of lpa were both much stronger grounds but the judge at first instance preferred the common law rule to the statute and found in favour of the kents basing his judgment on wheeldon v burrows. the court of appeal the court of appeal was not convinced that this ruling was correct. they were however, anxious that the effect of the lra would not allow certain 3 this doctrine presumes that the claimant has a prescriptive easement based on a deed or grant that has become lost over the years. this is a fiction and all the parties including the court accept this is so. normally the claimant must show that there has been twenty years of use at any time prior to the claim. an interruption to use will not be fatal to the claim. 4 a claim based on prescription will fail where the use is only made with violence or in secret or with the permission of the owner. 5 see barry v haseldine [1952] ch 832. the denning law journal 205 rights previously enjoyed by a tenant to pass into what mr justice lewison referred to as a ‘legal black hole.’ he considered the social policy behind the lra 1967 and the fact that under the act the land is considered to belong to the landowner and the house to the occupying leaseholder. he commented “…one would expect, therefore, that when a leaseholder of a house acquires the freehold of that house in exercise of his rights under the act, both the rights which he enjoyed and the rights which bound him in his capacity as leaseholder of the house would be carried through into his new status as freeholder when he acquires the land on which the house is built…”6 he was concerned that such rights exercised by the tenant would not pass on enfranchisement under the act because of its potential limiting effect. the leading judgment was given by lord justice chadwick who preferred to rely on s.62 lpa believing that the rule in wheeldon v burrows could not arise where the land had passed out of common ownership before enfranchisement but he nevertheless examined the rule in detail explaining why he did not believe it to apply in these circumstances. he asserted, “…under s.62 a conveyance of land operates to convey with the land “all ways, easements, rights and advantages whatsoever, appertaining or reputed to appertain to the land…or at the time of conveyance, demised…or enjoyed with…the land”. i can see no reason why those words are not apt to convey, with the freehold, rights of way over the retained land which are, at the time of the conveyance, enjoyed by the tenant in occupation of the land conveyed. for my part, i find that analysis more attractive than one which relies upon the first rule in wheeldon v burrows. it seems to me an unnecessary and artificial construct to hold the grantor, as common owner and the landlord of the land conveyed, is himself using the rights over the retained land which his tenant enjoyed under the lease.”7 the rule in wheeldon v burrows allows certain quasi easements8 to pass when property is sold. it is limited to those that are continuous and apparent and necessary to the reasonable enjoyment of the property granted and are in use at the time of the grant by the owner. it allows the successor in title to the vendor to enjoy rights, which would otherwise be lost unless expressly included in the conveyance. the rule is based on the presumption against derogation from the grant. in this case the issue arose as to whether such rights can pass where there is a statutory scheme for enfranchisement. under 6 para 70. 7 para 45. 8 quasi-easements are those rights, which a landowner may exercise over his own land which cannot take effect as a legal easement, but which may become full legal easements if part of the land is sold and the vendor retains part for himself. the purchaser may be able to claim an easement over the part retained by the vendor if he had enjoyed such a right as a quasi –easement. the denning law journal 206 section 8(1) lra 19679 the landlord is merely required under statute to sell the land to the tenant and lord justice chadwick construed the section to mean that the landlord does not have to transfer further rights which would pass where the land was being sold by the freehold owner to another freehold owner or to an existing tenant outside the act. he stated that “..there is no basis upon which to impute to an involuntary transferor an intention to grant any larger or further rights than those the statute expressly requires…”10 he rejected the argument that the rule could apply to cases of enfranchisement under the act. he also considered whether a tenant could claim an easement under wheeldon v burrows against another tenant where both had derived their title from a common landlord. he concluded that rights could not arise in this case because the landlord had not consented to the rights and further it had not been shown that the right was being exercised at the time of the conveyance. in his view it was significant that the previous claimant had chosen to use the shortcut through the garage. so finally the claim rested on section 62 lpa 1925, which has the effect of passing certain rights which have not been specifically mentioned in the conveyance.11 this section has the profound effect in conveyancing of sometimes creating easements where previously they had not existed. in one case a mere licence to use a shed for storage became a legal easement when the tenant renewed her lease12 and a licence to use a landlord’s property for access became a legal easement when the tenant later purchased the lease.13 the section is less specific than the rule in wheeldon v burrows about the conditions for such a right to arise. in this case it was crucial that the claimants did not have to show that it was a right that was reasonably necessary for the enjoyment of the property. there had been evidence that use had been made of the garage for access and it was tempting to suggest that the 9 s.8(1) leasehold reform act 1967 where a tenant of a house has under this part of this act a right to acquire the freehold, and to give to the landlord written notice of his desire to have the freehold, then except as provided by this part of this act the landlord shall be bound to make to the tenant, and the tenant to accept, (at the price and on the conditions so provided) a grant of the house and the premises for an estate in fee simple absolute, subject to the tenancy and to the tenant’s incumbrances, but otherwise free of incumbrances. 10 para 36. 11 this section passes to the transferee all ‘.. fixtures, commons, hedges, ditches, fences, waters, watercourses, liberties, privileges, easements, rights and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof…’ 12 wright v macadam [1949] 2 kb 744. a tenant of a flat had been granted a licence to store coal in her landlord’s coal shed. when her lease was renewed there was no express reference to the licence and the landlord demanded payment. the court held that the licence had become a legal easement. 13 international tea stores company v hobbs [1903] 2 ch 165. the denning law journal 207 route along the path was not necessary when the owners of the property have been perfectly content to use the route through the garage. the key feature of section 62 is the prior diversity of occupation which of course existed in this case.14 normally this would be a landlord tenant relationship where the tenant then purchases the freehold or renews the tenancy and claims rights will pass on the transfer.15 in this case the kents claimed that section 62 operated in their favour when the land was first purchased; when both properties were in the hands of tenants anxious to claim their statutory right to purchase the freehold. the reason why this claim was much more convincing than that of wheeldon v burrows was that the rights would pass because they had been enjoyed previously under the lease and would become crystallised as rights on conveyance. the lra did not affect these rights in the same way as any rights under wheeldon v burrows. lord justice chadwick summed up the position as follows “…the effect, therefore, is that – after enfranchisement of both plots a and b –the former tenants of those plots (as owners of the freehold) continue to enjoy the same rights over each others’ plots as they did while they were each tenants of those plots. if they were entitled to reciprocal easements under the former leases, those easements are (in effect) enfranchised. they subsist for the benefit of (and as a burden on) the respective freehold interests. and it is immaterial which of the two plots was the first to be enfranchised…”16 when the head leases were initially granted by the first landlord there was careful reference to the fact that each of the neighbouring properties owned the land up to the mid point of the path but no mention was made of rights over the remaining eighteen inches. comment there is little that an occupier can do with eighteen inches of path without rights over the other half of the path. the court accepted that their predecessors in title must have had rights over the whole of the path. there had been arguments for mr and mrs kavanagh that they owned the whole path but if this were the case why did the head lease only convey to them rights up to the midway point? the court of appeal upheld the claim of mr and mrs kent to an easement over half the path based on section 62. this was a sensible decision, which passed to the claimants a right to use what would appear to a stranger a narrow and insubstantial path. to them, however the amenity afforded to the home was something valuable and substantial. as an important postscript mr justice lewison commented “…i 14 the need to satisfy this condition for the operation of s.62 was highlighted in sovmots investment ltd v secretary of state for the environment [1979] ac 144. 15 see wright v macadam (supra) and international tea stores co v hobbs (supra). 16 para 58. the denning law journal 208 would add that this case demonstrates how important it is for any conveyancer concerned with enfranchisement to consider carefully the rights and obligations to be contained in the conveyance executed to give effect to the tenant’s right to enfranchise; and to ensure that the correct rights are both granted and reserved…”17 a moral indeed for everyone involved in conveyancing to observe! it is also interesting to note that once again section 62 has come to the rescue where the conveyancers have failed. 17 para 78 case commentary kent and anor v kavanagh and anor [2006] ewca civ 162 section 62 fills a black hole judith bray* the facts county court the court of appeal comment 404 not found two kinds of justice: human and devine the denning law journal 221 denning law journal 2008 vol 20 pp 221-238 case commentary human sacrifices at the altar of terrorist control secretary of state for the home department v mb: secretary of state for the home department v af [2007] ukhl 46 susan s m edwards∗ background joseph k in franz kafka’s the trial1 is arrested and put on trial, but the evidence against him is never disclosed and so he is suspended in a legal nightmare.2 on december 16th 2004, the house of lords, in a and others v secretary of state for the home department,3 ruled that indefinite detention of non-uk nationals, without charge or trial, was incompatible with article 5 of the european convention of human rights (echr). in a and others v secretary of state for the home department (no 2),4 lord carswell said, “…no court will readily lend itself to indefinite detention without charge, let alone trial.”5 following the house of lords ruling and the subsequent release of the belmarsh prisoners,6 the government responded with reflex immediacy, and less than three months later, on march 11th 2005, introduced the prevention of terrorism act 2005 (pta), its sole objective to provide for a new and novel legal mechanism that of a non-derogating and ∗ professor of law, university of buckingham, barrister, clarendon chambers, temple, london. the research for this case commentary was conducted as part of the remit of a wider study on “female terrorist suspects, defendants and prisoners,” funded by a university of buckingham, stanley dennison research grant (2006 7). 1 f kafka the trial (london: penguin classics, 1994). 2 see g m smith “reading kafka’s trial politically: justice-law-power” (2008) 7 1 contemporary political theory (23) 8. 3 [2004] ukhl 56 [2005] 3 all er 169, [2005] 2 ac 68. appeals allowed. human rights act 1998 (designated derogation) order 2001 quashed. a declaration was made that s 23 of the anti-terrorism, crime and security act 2001 was incompatible with articles 5, and 14 of the european convention for the protection of human rights and fundamental freedoms 1950. 4 a and others v secretary of state for the home department (no 2) [2005] ukhl 71, [2006] 1 all er 575. “the appeals would be allowed and the cases remitted to the siac for reconsideration...” 5 ibid, at para 164. 6 detained in hmp belmarsh without charge. http://www.lexisnexis.com/uk/legal/search/runremotelink.do?service=citation&langcountry=gb&risb=21_t3487478812&a=0.8727625561798618&linkinfo=gb%23aller%23year%252005%25page%25169%25vol%253%25sel2%253%25sel1%252005%25&bct=a http://www.lexisnexis.com/uk/legal/search/runremotelink.do?service=citation&langcountry=gb&risb=21_t3487478812&a=0.3185726266770711&linkinfo=gb%23ac%23year%252005%25page%2568%25vol%252%25sel2%252%25sel1%252005%25&bct=a case commentary 222 derogating ‘control order.’ this provision inhabits a newly emerging area of what can be described as “utter law”, a veritable ‘no man’s land’ neither criminal nor civil,7 neither within the law as we have known it nor wholly outside it. without a history or a nomenclature to describe them, such orders, are in effect an expression of the clarion call for political/ideological control to restrict, resist and defeat political/ideological activity. with its elusive perforated veneer of legality, defined under section 1(1) of the act, a control order is an order against an individual imposing obligations on him or her for “the purpose of protecting members of the public from the risk of terrorism.”8 the control order adds to the expanding spectre of counterterrorism law — which already includes, inter alia; proscribing of certain political organisations,9 proscribing the wearing of particular uniform,10 proscribing fund raising in connection with certain organisations,11 and making illegal the possession of an article considered to be ‘involved in terrorism,’12 a raft of additional offences more recently introduced under the terrorism act 2006,13 including, encouragement14 and the entirely novel offence of ‘glorification of terrorist activity.’15 7 the house of lords did not resolve this matter, see secretary of state for the home department v mb; secretary of state for the home department v af, [2007] ukhl 46, para 17, per lord bingham: “…in this country…judges have regarded the classification of proceedings as criminal or civil as less important than the question of what protections are required for a fair trial.” further, in customs and excise commissioners v city of london magistrates' court [2000] 4 all er 763, it was held: “criminal proceedings involve a formal accusation made on behalf of the state or by a private prosecutor that a defendant has committed a breach of the criminal law, and [that]: the state or the private prosecutor has instituted proceedings which may culminate in the conviction and condemnation of the defendant.” 8 see explanatory notes to the prevention of terrorism act 2005, chapter 2. 9 terrorism act 2000, s 12. see also r v f, court of appeal (criminal division) february 16th 2007 [2007] ewca crim 243, [2007] 2 all er 193, in which it was held that, “… in interpreting the meaning of ‘proscribed organisation’ under section 58 of the terrorism act 2000, f was not entitled to argue that the provision permitted him to advance as a ‘reasonable excuse’ for possessing the relevant documents that they had ‘originated as part of an effort to change an illegal or undemocratic regime’.” 10 terrorism act 2000, s 13. 11 terrorism act 2000, s 15. 12 terrorism act 2000, s 57. see also r v m [2007] ewca crim 298, [2008] crim lr 71, r v rowe [2007] ewca crim 635, [2008] crim lr 72. 13 the terrorism bill 2007 (commons 2nd reading stage, april 2008) seeks to extend the range of current offences. 14 terrorism act 2006, s 1. 15 terrorism act 2006, s 1(3)(a)“for the purposes of this section, the statements that are likely to be understood by members of the public as indirectly encouraging the commission or preparation of acts of terrorism or convention offences include every the denning law journal 223 section 2(1) of the 2005 act provides for the first of two control orders. the first order, the ‘non-derogating control order’ can be made against an individual by the secretary of state, if s/he “(a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and (b) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual.”16 section 2(2) of the act provides that the secretary of state may make a control order against an individual who is already bound by a control order made by the court but only if s/he does so “(a) after the court has determined that its order should be revoked; but (b) while the effect of the revocation has been postponed for the purpose of giving the secretary of state an opportunity to decide whether to exercise his own powers to make a control order against the individual.” section 3(1)(a) requires permission of the court, to make such an order, although ‘in cases of urgency’17 an order can also be made without first seeking their permission. however, the secretary of state must immediately refer the case to the court for its confirmation (section 3(2)(c)). a nonderogating control order may be made for a period of 12 months and is renewable (section 2(6)). under section 3(2)(a) the court must consider whether the secretary of state's decision — that there are grounds to make the order — is ‘obviously flawed.’ in determining the meaning of ‘obviously flawed’ the standard for the court is that set for determination of judicial review (section 3(11)), ie., that the decision of the court or tribunal can only be overturned if it is so unreasonable that no court or tribunal could have reached that decision.18 and, if an aspect of the order, such as a particular obligation within the order is ‘obviously flawed,’ then that part of the order must be recinded. an application for a control order may proceed in the absence of the individual against whom it is being sought, without the person being notified, or having the opportunity of making representations (section 3(5)). statement which—(a) glorifies the commission or preparation (whether in the past, in the future or generally) of such acts or offences; and (b) is a statement from which those members of the public could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated by them in existing circumstances.” 'glorification' is defined in s 20(2) as including “any form of praise or celebration, and cognate expressions are to be construed accordingly.” 16 prevention of terrorism act 2005, s 2(1). 17 the secretary of state will put up to the court what the state defines as terrorism and the court will set the parameters of its meaning by accepting or rejecting competing legal constructions of the term ‘terrorism’. 18 see associated provincial picture houses ltd v wednesbury corpn [1948] 1 kb 223. case commentary 224 the second type of order, the ‘derogating control order,’ mirrors its brother order, in most respects, except that section 4(3) allows its makers to derogate from the protection otherwise promised the ‘controlee’ under article 5 (echr),19 if it appears to the court: “ (a) that there is material which (if not disproved) is capable of being relied on by the court as establishing that the individual is or has been involved in terrorism-related activity; (b) that there are reasonable grounds for believing that the imposition of obligations on that individual is necessary for purposes connected with protecting members of the public from a risk of terrorism; (c) that the risk arises out of, or is associated with, a public emergency in respect of which there is a designated derogation from the whole or a part of article 5 of the human rights convention; and (d) that the obligations that there are reasonable grounds for believing should be imposed on the individual are or include derogating obligations of a description set out for the purposes of the designated derogation in the designation order.”[sic] such orders are live for six months and like non-derogating orders can also be renewed “on as many occasions as the court thinks fit.”20 a non-derogating or a derogating control order may be made against any suspected terrorist, including both uk and non-uk nationals in respect of international or domestic terrorist related activities.21 the draconian beauty of the control order is that it can be bespoked in the restrictions that can be imposed on the controlee in accordance with the dictate of the secretary of state.22 such an order contains the power to circumscribe the course of the daily life of the person against whom it is made and can include; controlling a persons freedom of association with others or freedom of movement or, of communication or, of residence or enjoyment of services, such as use of the telephone or the internet. it may also include a requirement to be at a specified place or in a particular area at certain times of the day (section 1(5)), including electronic tagging (section 1(6)). it also permits the police to search one’s home and remove items from premises for tests, and includes a 19 derogations from the convention are rare but can be justified in times of national emergency or national security. see the human rights act (designated derogation) order 2001, statutory instrument 2001 no 3644. 20 section 4(10) pta 2005. 21 the home secretary is required to report to parliament as soon as reasonably possible after the end of the relevant three-month period on how control order powers have been exercised during that time control orders quarterly statement (11 sept – 10 dec 2007) december 12th 2007. 22 section 1(4) pta 2005. the denning law journal 225 requirement to report to police at a specified time and place. contravention of any obligation set down within the order constitutes a breach and is punishable with up to five years’ imprisonment.23 at the time of writing fourteen control orders were in force, eight of which were made in respect of british citizens.24 the power to impose a control order turns on the definition of ‘terrorist related activity.’25 this phrase is insufficiently defined. it embraces under its banner a band-wagon of ills and misdemeanours26 and resistence, which depend entirely on the authorities suspicion and anxiety, such that ways of thinking and feeling – that is – intellectual and emotional moods as well as actions or contemplated actions, which are considered to be terrorist related, are all included. for example, individuals who resist oppressive regimes may be defined as terrorists. present law would criminalise as terrorist those who resisted, arguably, the most brutal occupation of history, as when the fln fought to wrest algeria from the french.27 conor gearty has recently warned: “…the definition of 'terrorism' in the 2000 act is far wider than is popularly assumed, covering politically, religiously or ideologically motivated serious violence to the person and serious damage to property but also similarly motivated conduct creating either 'a serious risk to the health or safety of the public or a section of the public' or 23 see section 1(4) a-p and sections 5-8, ss 9(1) and (4)(a)). see also bullivant later, n 73. 24 control orders quarterly statement (11 sept – 10 dec 2007) december 12th 2007. 25 “terrorism” is defined by the several offences created, and in the terrorism act 2000, s 1. (1) in this act 'terrorism' means the use or threat of action where—(a) the action falls within subsection (2)(b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and (c) the use or threat is made for the purpose of advancing a political, religious or ideological cause (2) action falls within this subsection if it—(a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person's life, other than that of the person committing the action,(d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system. 26 in r v k [2008] ewca 185, the appellant appealed against a decision of the judge alleging offences under s 58 of the terrorism act 2000. k was charged with three counts of possessing material containing information “likely to be useful to a person committing or preparing an act of terrorism.” the first count involved a copy of the al qaeda training manual, the second count related to a text about jihad movements, the third count related to a text about the duty of a muslim to work for an islamic state. whether such material is ‘likely to be useful’ is a matter for the jury. 27 see for example “the battle of algiers” gillo pontecorvo 1966; f fanon, the wretched of the earth (london: penguin classics, new ed, 2001). case commentary 226 which is 'designed seriously to interfere with or seriously to disrupt an electronic system' and that this means these control orders will be far wider than is generally understood.”28 so, following the house of lords in a, since a person suspected of terrorist activity can no longer be detained indefinitely in belmarsh, the control order, by replicating prison conditions, provides instead that a person can now be detained indefinitely in their own home. also, dispensing with the principles of both logic and causation, the restrictions imposed on a controlee need not be related to the grounds for suspicion. section 2(9) states, “it shall be immaterial, for the purposes of determining what obligations may be imposed by a control order made by the secretary of state, whether the involvement in terrorism-related activity to be prevented or restricted by the obligations is connected with matters to which the secretary of state's grounds for suspicion relate.” this demonstrates that the ambit of the order strays far beyond what it claims – prevention – into a new punitiveness.29 neither the person subject to a control order application nor his lawyers know the nature of all the evidence against him or her, as some or all of the evidence upon which the secretary of state relies to base his or her suspicions, is closed. such secrecy is justified on the grounds that surveillance and other evidence should be closed in order to protect intelligence operations and those working for the intelligence services.30 thus, a suspected person does not know the evidence against him or her, and cannot hear or test the evidence against him or her (although the evidence is disclosed to a special advocate). the case against af af, is one of several individuals subjected to a control order(s) who finds himself like joseph k, in a legal nightmare where the case against him is not revealed, the evidence against him, undisclosed. the allegations against af 28 current legal problems public lecture, university college london, march 3 2008. rd 29 lord bingham in the house of lords in secretary of state for the home department v mb; secretary of state for the home department v af [2007] ukhl 46, at para 23 recognised that a “preventative measure may be so adverse as to be penal in its effects if not in its intention.” 30 paras 4(2)(a) and (b) of the schedule to the 2005 act provided that rules of court might preclude disclosure to a party of the reasons for decisions and might make provision for hearings to be conducted in his absence. paras 4(3)(b) to (d) of the schedule require that the rules of court in turn require that the court permit the secretary of state not to disclose material to a party if its disclosure would be contrary to the public interest. the denning law journal 227 are that he had links with islamist extremists in manchester, and that some of these individuals were affiliated to the libyan islamic fighting group.31 in af’s case the control order included, the following bespoke arrangements, electronic tagging, restrictions as to residence, which included an 18 hour curfew order. (this order was later revoked and a new order including a 14 hour curfew, between 6pm and 8am, substituted). friends could visit during the hours of curfew only following prior identification and approval by the police. contact with certain named individuals was prohibited. af’s movements outside curfew hours were restricted to a defined geographical area and there were further restrictions as to attendance for religious worship, communications, travel and travel documentation, banking, financial and employment matters, and police could enter and search his home at any time. section 3 hearing at the supervisory hearing on march 30th 2007, in respect of the control order, a series of issues were raised32 including, whether the order constituted a deprivation of liberty within article 5 echr, whether the lack of disclosure resulted in a breach of article 6, and whether the order was made unlawfully as it was made by a person delegated to do so and not by the secretary of state herself. ouseley j, quashed the second order – (pta/33/2006) – on the grounds that the restrictions it imposed on af cumulatively amounted to a deprivation of liberty under article 5(l) echr.33 significance was attached to the cumulative effect of the restrictions, especially those preventing af from visiting mosques, places of education and places offering employment opportunities. added to which, the fact that some of the restrictions could be renewed for a number of years was also a weighty consideration. on article 6 – the right to fair trial – specifically the fact that the evidence was undisclosed to af, ouseley j, said that the order was ‘not flawed’ merely because of non disclosure, nor because the secretary of state had not made it herself and had delegated her powers to another government official, although he said that the evidence against af had been ‘scarcely gisted.’ ouseley j, dismissed af's application for a declaration of incompatibility, but granted a certificate which permitted both parties to appeal directly to the house of lords. the issues for the house included: 31 the libyan islamic fighting group is a group opposed to moammar al–qadhafi, and is a proscribed organisation under schedule 2 of the terrorism act 2000. 32 secretary of state for the home department v af [2007] ewhc 651 (admin) [2007] all er (d) 21 apr para 9. 33 as set out in sch i to the human rights act 1998) (the convention), [2007] ewhc 65i (admin) [2007] all er (d) 21 (apr). case commentary 228 “(i) whether the obligations imposed on af by the control order amounted to a deprivation of liberty within the meaning of art 5(1) of the convention; (ii) whether a non-derogating control order constituted a criminal charge for the purposes of art 6 of the convention; and (iii) whether the procedures provided for by s 3 of the 2005 act and the rules of court were compatible with art 6(1) of the convention in circumstances where they had resulted in the case made against an individual being in its essence entirely undisclosed to him and in no specific allegation of terrorism-related activity being contained in open material. the judge … decided issue (i) in favour of af and issues (ii) and (iii) in favour of the secretary of state. the secretary of state appealed and af cross-appealed.”34 house of lords because af’s appeal involved a point of law with respect to deprivation of liberty (article 5) and fair trial (article 6), rights which were also the subject of other appeal cases, these appeals were heard together in the house of lords in what has been called a ‘leap frog procedure.’35 the hearing took place in july 2007 and the speeches were delivered on october 31st 2007. the house allowed the home secretary's appeal on the first issue, although they agreed that control orders involving curfews of 18 hours were indeed in breach of article 5. in relation to article 6, the second issue, the house of lords unanimously held that whilst a non-derogating control order does not amount to a criminal charge,36 “…nevertheless those against whom such orders are proposed or made are entitled to such measure of procedural 34 secretary of state for the home department v mb; secretary of state for the home department v af [2007] ukhl 46 hl [2008] 1 all er 657 at 658. (hereafter af [hl]). 35 the judge may grant a certificate under s 12(3)(b) of the administration of justice act 1969 if he is satisfied (a) that the relevant conditions are fulfilled; (b) that a sufficient case has been made to justify taking to the house of lords an application for leave; and (c) that all the parties to the proceedings consent to the grant of a certificate. the relevant conditions are that a point of law of general public importance is involved and that the point of law either (a) relates wholly or mainly to the construction of an enactment or of a statutory instrument and has been fully argued in the proceedings and fully considered in the judgment of the judge in the proceedings, or (b) is one in respect of which the judge is bound by a decision of the court of appeal or house of lords in previous proceedings and was fully considered in the judgments of the court of appeal or house of lords in those previous proceedings. 36 this was not the view of the joint committee on human rights (twelfth report of session 2005-2006, hl paper 122, hc 915), which held that the criminal limb of article 6(1) applied, see para 49. http://www.lexisnexis.com/uk/legal/search/runremotelink.do?service=citation&langcountry=gb&risb=21_t3448802854&a=0.6645009616478679&linkinfo=gb%23uk_acts%23num%251969_58a%25section%2512%25sect%2512%25&bct=a the denning law journal 229 protection as is commensurate with the gravity of the potential consequences.”37 on the third point, relating to the compatibility of section 3 of the 2005 act with article 6, it was further held by a majority that procedures for the courts to review non-derogating control orders – in particular the procedures for withholding closed material – do not inevitably amount to a breach of the civil limb of article 6, but it would they said depend entirely on the circumstances of the case in hand. they generally favoured the conclusion that there had been a breach in the instant case and therefore remitted the matter. in reviewing the question of compatibility of section 3 of the 2005 act with article 6, lord bingham, in carefully considering two strands of authorities, said “the law on this subject is not altogether straightforward.”38 the first strand of authority considered held that article 6 was absolute, (here relying on lord hope in brown39 who had said that the right to a fair trial was “fundamental and absolute” and also mclachlin cj, for the supreme court of canada, in charkaoui v minister of citizenship and immigration (2007)40 who observed “last but not least, a fair hearing requires that the affected person be informed of the case against him or her, and be permitted to respond to it,” and also o'connor j, in hamdi v rumsfeld (2004))41 who said, “parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified . . . these essential constitutional promises may not be eroded.”42 the other strand which lord bingham considered encompassed the strasbourg jurisprudence which held that in the context of national security the right to fair trial and disclosure is not absolute.43 the house of lords regrettably lacked consensus on this point revealing instead different shades of opinion with regard to whether the general question of non-disclosure, of necessity, amounted to a breach of article 6. in the instant case lord bingham said, “…i… see force in the argument that a declaration of incompatibility should be made and the orders quashed. having, however, read the opinions of my noble and learned friends baroness hale of richmond, lord carswell and lord brown of eatonunder-heywood, i see great force in the contrary argument, and would not wish to press my opinion to the point of dissent. i therefore agree that s 3 should be applied, and the cases referred back, as they propose, for 37 af [hl],at para 24 per lord bingham. 38 af [hl], at para 17. 39 brown v stott (procurator fiscal, dunfermline) [2001] 2lrc 612,[2003] 1 ac 681,719 and in ds v her majesty's advocate [2007] ukpc d1, 2007 sccr 222 (22 may 2007, unreported). 40 [2007] 1 scr 350 para 53. 41 (2004) 542 us 507. 42 ibid at 533. 43 af [hl] para 32. case commentary 230 consideration in each case by the judge in the light of the committee's conclusions.”44 in considering whether non-disclosure of the closed material was consistent with the right to a fair trial, lord hoffman decided that it was a judicial question and not one for the secretary of state: but he came down on the side of finding that the special advocate procedure provided sufficient safeguard to satisfy article 6:45 “ the canadian model is precisely what has been adopted in the united kingdom, first for cases of detention for the purposes of deportation on national security grounds (as in chahal) and then for the judicial supervision of control orders. from the point of view of the individual seeking to challenge the order, it is of course imperfect. but the strasbourg court has recognised that the right to be informed of the case against one, though important, may have to be qualified in the interests of others and the public interest. the weight to be given to these competing interests will depend upon the facts of the case, but there can in time of peace be no public interest which is more weighty than protecting the state against terrorism and, on the other hand, the convention rights of the individual which may be affected by the orders are all themselves qualified by the requirements of national security. there is no strasbourg or domestic authority which has gone to the lengths of saying that the secretary of state cannot make a nonderogating control order (or anything of the same kind) without disclosing material which a judge considers it would be contrary to the public interest to disclose. i do not think that we should put the secretary of state in such an impossible position and i therefore agree with the court of appeal that in principle the special advocate procedure provides sufficient safeguards to satisfy art 6.”46 baroness hale, drawing on her experience of child and family law where non-disclosure was, on occasion, considered in the best interests of child welfare47 cited, first, child case law, and then, cited the case of botmeh48 (a terrorism case) where the court said that disclosure would not abrogate a fair trial provided that the procedure was fair. citing what she considered to be the most important passage: 44 af [hl], at para 44. 45 af [hl], at para 54. 46 af [hl], at para 54. 47 af [hl], at para 60. 48 r v botmeh [2001] ewca crim 2226 [2002] 1 wlr 531. the denning law journal 231 “however, . . . the entitlement to disclosure of relevant evidence is not an absolute right. in any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused. in some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. however, only such measures restricting the rights of the defence as are strictly necessary are permissible under article 6(1). moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities.”49 baroness hale was of the opinion that, in most cases, the special advocate, could ensure fairness, with the proviso that: “all must be alive to the possibility that the special advocates be given leave to ask specific and carefully tailored questions of the client. although not expressly provided for in cpr r 76.24, the special advocate should be able to call or have called witnesses to rebut the closed material. the nature of the case may be such that the client does not need to know all the details of the evidence in order to make an effective challenge.”50 whilst, lord brown said it was not necessary to sacrifice fair trial in the interests of terrorist legislation, he also said that there may be exceptional cases where article 6 would in effect be suspended: “there may perhaps be cases, wholly exceptional though they are likely to be, where, despite the best efforts of all concerned by way of redaction, anonymisation, and gisting, it will simply be impossible to indicate sufficient of the secretary of state's case to enable the suspect to advance any effective challenge to it. unless in these cases the judge can nevertheless feel quite sure that in any event no possible challenge could conceivably have succeeded (a difficult but not, i think, impossible conclusion to arrive at – consider, for example, the judge's remarks in af's own case, set out by my noble and learned friend baroness hale of richmond at para 67 of her opinion), he would have to conclude that the making or, as the case 49 af [hl], at para 62. 50 af [hl], at para 66. case commentary 232 may be, confirmation of an order would indeed involve significant injustice to the suspect. in short, the suspect in such a case would not have been accorded even “a substantial measure of procedural justice” (chahal v united kingdom (1996) 23 ehrr 413 at para 131) notwithstanding the use of the special advocate procedure; “the very essence of [his] right [to a fair hearing] [will have been] impaired” (tinnelly & sons ltd and mcelduff and others v united kingdom (1998) 27 ehrr 249, para 72).”51 the house concluded by finding, as lord carswell summarised, “the judge has not made a decision on the overall fairness of the hearing and its compliance with article 6, and in these circumstances i would allow the secretary of state's appeal, reverse the judge's order quashing the control order and send the case back to the administrative court for reconsideration in the light of the opinions expressed by the house.”52 the aftermath af remitted53 following the house of lords judgement there have been four hearings in the high court with regard to af on matters ongoing and matters related to the substance of the house of lords ruling. i deal with three of them here. queen’s bench division (i) november 30th 2007 stanley burnton j,54 considered the case of af in november 2007. the hearing before him was formally listed as a hearing for directions for the substantive hearing in relation to control order pta/4/2007 and the issue of recusal. however, since the decision of the house of lords had supervened it had the effect of retrospectively provisionally reviving pta/33/2006, (which had earlier been quashed by ouseley j, in march 2007) and remitting it for consideration to the administrative court.55 on the question of the weight of the recusal application and possible bias, stanley burnton j said this: “the liberty of af will be substantially affected 51 af [hl], at para 90. see also secretary of state for the home department v af (proceedings under the prevention of terrorism act 2005) [2008] ewhc 453 (admin) para 6. 52 af [hl],at para 87. 53 [2007] ewhc 2828 (admin) november 30th 2007, the times, december 17th, 2007. 54 from april 1st 2008 appointed lord justice of appeal. 55 [2007] ewhc 2828 (admin) november 30th 2007, para 5. the denning law journal 233 by the result of these proceedings; they are akin to criminal proceedings; those facts, and the particular importance of decisions in this area commanding public confidence, make it particularly important that there should be no appearance of pre-judgment bias. the opinions in the house of lords do not indicate that the remitted issue should be determined by a judge other than ouseley j, but they heard no argument on the present issue.” 56 and found “….there is no basis for recusal on the basis of objective pre-judgment since a different judge would equally be bound by the earlier findings.”57 in giving directions for the substantive hearing he said that, “…for the purposes of s 3(10) the court must consider whether the control order was necessary (applying judicial review principles) when made and until a decision is made under that subsection…”. whilst for the purposes of s 10(4)(a) (which relates to renewal), he said; “…this requires the court to consider the lawfulness of the renewal or refusal to revoke it.”58 he went on to say: “this does not mean that in the present case on the s 3(10) hearing on pta/4/2007 the court is bound to reach the same factual conclusions as those originally reached by ouseley j in the hearing in relation to pta/33/2006. the evidence will differ, in that it will have been brought up to date by both parties; there may be additional evidence quite apart from the consequences of the decision of the house of lords; the secretary of state may decide to disclose evidence that was previously closed, which may lead af to supplement his evidence; he may decide to testify; the court may preclude the secretary of state from relying on some evidence on which he was previously able to rely; and the court will have to consider the consequences of the passage of time during which af has been subject to control orders. inevitably, as all counsel recognise, the decisions of the court on the admissibility of evidence on which the secretary of state seeks to rely will impact on the issue remitted by the house of lords on pta/33/2006.” 59 (ii) march 10th 2008 in this hearing, before stanley burnton j, the question of whether the procedure involving the special advocate was compatible with the right to a 56 [2007] ewhc 2828 (admin) november 30th 2007, para 6. 57 [2007] ewhc 2828 (admin) november 30th 2007, para 10. 58 secretary of state for the home department v af [2007] ewhc 2828 (admin) [2007] all er (d) 481 (nov) para 16. 59 ibid, at para 20. case commentary 234 fair hearing, was considered. stanley burnton j enumerated what factors in his view would be relevant. the court found that with regard to control order pta/33/2006, af had not had the basic allegation explained to him in open sessions and could not give instructions to the special advocate, and also that the lower court could have precluded the secretary of state from relying on the withheld information if it had formed the view that in the absence of disclosure to the respondent such reliance would have resulted in an unfair hearing. with regard to control order pta/4/2007, it had been submitted by counsel for af and also by the special advocate that it could not be article 6 compliant unless further disclosures were made to af by the secretary of state.60 stanley burnton j, reviewed the law on article 6 and detailed the three judicial opinions61 expressed by the house of lords in af and mb, of particular relevance were the first two opinions, first, that fairness required a balance between the public and the respondent and that the proceedings will satisfy the requirement of fairness ‘provided all that can reasonably be done to represent and to protect his interests’ (lord hoffman’s position)62 and the second view that proceedings cannot be fair unless the person knows the allegations and is given the opportunity to effectively disprove them (lord bingham’s position).63 he also reviewed in some depth the provisions for special advocates and the house of lords opinions on the special advocate procedure. in this regard, he cited baroness hale who had said in the house that it was necessary to “probe the claim that the closed material should remain closed with great care and considerable scepticism.”64 he concluded that the section 3(10) proceedings had not complied with article 6 of the convention and that in drawing on the lord brown exception (“that there was an exception to the general requirements of article 6 if the court could feel quite sure that in any event no possible challenge could conceivably have succeeded”) he took the view that article 6 compliance could only be secured if there was no conceivable challenge to the closed material. on this basis, stanley burnton j found that the judge in the lower court should address the question of whether there might conceivably be a challenge to the closed material in order to adequately consider the question of article 6 compliance. (iii) april 9th 2008 in the april 9th 2008 hearing,65 stanley burnton j considered whether he should determine the point of law on article 6, and, secondly following 60 para 41-42. 61 para 17. 62 see mb [2006] ewca 1140. 63 af [hl], at para 18. 64 af [hl], at para 32. 65 secretary of state for the home department v af(proceedings under the prevention of terrorism act 2005) [2008] ewhc 689 (admin). the denning law journal 235 submissions made by counsel for af,66 considered whether lord brown's exception represented the law concluding that: “(1) in the instant case it was open to the court to consider whether lord brown's exception represented the law. the issue should have been addressed in the previous judgment and the instant case was an opportunity to rectify that error and to deal with the point. secondly, the judgment was not a final judgment, but an interlocutory one for the purposes of the control order. thirdly, the issue was one of law, divorced from the facts and no question arose of further evidence being relevant to its determination. moreover, it was better that the court of appeal had a first instance judgment on the issue, which had been comprehensively argued. fourthly, the secretary of state was unable to point to any prejudice she would suffer if the point was determined. lastly, if the exception was available it would not infrequently be sought to argue that it did apply. it would provide an escape valve from the general requirement of disclosure of the substance of the case against a respondent.”67 he then went on to consider whether there was authority for such an exception and was referred by counsel for af to the case of botmeh68 where the court of appeal held that the material against the defendant[s] should be considered ex parte and that there was no breach of article 6 because public interest immunity was rightly granted given that disclosure would have resulted in a threat to life and the matter before the court of appeal added nothing of signifcance to what was before the trial judge. stanley burnton j, said that the case of botmeh was a long way from af since, unlike in botmeh, in af ‘everything of significance’ was withheld. stanley burnton j, held that neither the court of appeal, nor the echr provides authority that nothing of significance need be disclosed.69 stanley burnton j, then went on to consider the status of lord brown’s exception considering whether it was a statement which received the approval of the house of lords. he noted that the exception did not receive the authority of the majority members of appellate committee,70 therefore concluding that it was not part of the ratio decidendi of the appellate committee. further, he considered whether it had been the 66 mr tim otty qc. 67 secretary of state for the home department v af(proceedings under the prevention of terrorism act 2005) [2008] ewhc 689 (admin). 68 r v botmeh [2001] ewca crim 2226 [2002] 1 wlr 531. 69 secretary of state for the home department v af (proceedings under the prevention of terrorism act 2005) [2008] ewhc 689 (admin) para 45. 70 ibid [2008] ewhc 689 (admin) para 21. case commentary 236 subject of subsequent authority and concluded it had not.71 finally, on the point of whether it formed part of our law, he said, that the exception confused procedure with substance. subject to appeal to the court of appeal, he put it to the secretary of state whether she wished to disclose further allegations or evidence. for af he said that there would have to be a further hearing, whether or not his rulings were appealed to the court of appeal. discussion any thorough critique of this provision is beyond the purpose of this commentary. however, a few points of necessity must be made. first, as a general comment the provision of the 'control order' has little historical or legal parallel. possibly the closest parallel is 'house arrest’. the authority of the control order is suspended in a political and ‘utter legal’ vacuum. neocleous argues: “the general feeling is that the declared state of emergency has so transformed the legal landscape that we are in a ‘lawless world’; detainees are living in a legal ‘black hole’ or the ‘legal equivalent of outer space.’”72 critics have said if there is insufficient evidence to charge a person with an offence defined in law then that is the end of it. the omnipotent power vested in the secretary of state to impose a control order subverts due process. certainly, this enveloping paranoic suspicion has had a devastating impact on individual liberty as demonstrated in the case of secretary of state for the home department v bullivant (proceedings under the prevention of terrorism act 2005).73 the evidence against cerie bullivant was that on january 30th 2005, he went to heathrow airport to meet a. he was questioned at heathrow and in reply said he was traveling to syria to study arabic. as a was the subject of a control order, both a and bullivant were detained by the authorities and interviewed separately. their accounts of their intended activities in syria differed in one respect. bullivant said that a friend would be waiting at the airport for them whilst a failed to mention this fact. it was then discovered that they were going to visit bangladesh with two other friends. bullivant said that he intended visiting bangladesh with a view to helping in the running of an orphanage. however, the secretary of state was of the opinion that bullivant had an intention to travel overseas for a terrorismrelated purpose and on that basis imposed a control order, which bullivant subsequently breached. explaining why he breached the order bullivant said: “the combination of the conditions, coupled with the 'not knowing' when this 71 ibid [2008] ewhc 689 (admin) para 26. 72 m neocleous “the problem with normality: taking exception to "permanent emergency” (2006) 2 alternatives 191. 73 secretary of state for the home department v bullivant (proceedings under the prevention of terrorism act 2005) [2008] all er (d) 322 (feb). the denning law journal 237 is all going to end, has led me into the depths of despair. …i feel like my life is on hold while this is going on. my life has been turned upside down for reasons that will never truly be explained to me.”74 second, the house of lords judgement still leaves questions unanswered with regard to article 6 echr and section 3 of the 2005 act, and article 6 of the echr and section 3 of the human rights act 1998, it is a pity that a lack of clarity remains when there might have been certainty. the house of lords was provided with an opportunity to clarify existing law in a difficult and hugely important area. they did not do so. third, whilst the consequences of a control order are draconian and punitive, disturbingly, the standard of proof is the civil standard “on the balance of probabilities” where under section 3(2)(a) an order may remain in force only if the court is “satisfied, on the balance of probabilities, that the controlled person is an individual who is or has been involved in terrorism-related activity.” fourth, with regard to control orders generally, new rules of the game under the auspices of a special court have been devised where sensitive ‘closed material’ is withheld from the person concerned and his or her lawyers, and where necessary a security-cleared ‘special advocate’ can represent his or her interests. ashworth argues that: “these measures stretch the legal status of innocence considerably at the pre-trial stages because those so subject to control orders do not know the evidence against them and so can not challenge it.”75 like a corridor of connected rooms, this new vista incorporates cell trials within trials. joseph k, head in his hands, one snowy morning reflects on the trial: “…the trial would not be public, if the court deems it necessary it can be made public but there is no law that says it has to be. as a result, the accused and his defence don't have access even to the court records, and especially not to the indictment, and that means we generally don't know or at least not precisely what the first documents need to be about it's only by a lucky coincidence. if anything about the individual charges and the reasons for them comes out clearly or can be guessed at while the accused is being questioned, then it's possible to work out and submit documents that really direct the issue and present proof, but not before.76…counsel for the defence are not normally allowed to be present while the accused is being questioned, [and]….of course, there's no way of 74 a mental health nursing student at south bank university, see report in the nursing standard, 8th january, vol 22 no 17 2008. 75 a ashworth “four threats to the presumption of innocence” (2006) l0 4 the international journal of evidence & proof 241. 76 the project gutenberg ebook of the trial, by franz kafka. translated by david wyllie, 2003, chapter seven p 64. case commentary 238 defending yourself from this, something said in private is indeed in private and cannot then be used in public, it's not something that makes it easy for the defence to keep those gentlemen's favour.”77 77 the project gutenberg ebook of the trial, by franz kafka translated by david wyllie, 2003, chapter seven p 65. for the purposes of right to self-determination, how does one define people in context of kashmir the denning law journal 1 the denning law journal 2009 vol 21 pp 1-25 the creation story of kashmiri people: the right to self-determination fozia n lone∗ abstract if a group wishes to exercise the right to self-determination, they need to establish that they are a “people” within the international law definition, thereby triggering the ability to claim this right. thus, the definition of the term “people” is the key in cases of self-determination and always posits difficult challenges. this article aims to determine whether the “kashmiri people” could be identified as a group that fits within the contemporary nonexhaustive definition of people. having ascended from the level of subjects of an autocratic rule to victims of human rights violations, are kashmiris now in a position to exercise a right to self-determination? i. introduction the territory of kashmir, located in the foothills of himalayan mountain range in south asia, was until 1947 under the paramountcy of the british crown as the princely state of jammu and kashmir. the british decolonisation of the indian subcontinent became instrumental in creating a disorder that pushed kashmir into the throes of an unending war. britain decided to grant independence to british india; however, they did not adequately define the relationship between the princely states and the new dominions, i.e. india and pakistan.1 once the british paramountcy was withdrawn in 1947, the territory of princely state of kashmir became a continuous source of tension between india and pakistan. this territory ignited four wars between these newly formed nations and has been described as the “most dangerous place in the world” by the former us president bill ∗ assistant professor, city university of hong kong & honorary research assistant, university of aberdeen. 1 h hodson the great divide britain india pakistan (london: hutchinson, 1969). the creation story of kashmiri people: the right to self-determination 2 clinton.2 today india and pakistan are nuclear countries and a fifth war between them could make kashmir a battlefield for possible nuclear warfare.3 over the years the wars left the territory of kashmir divided between india, pakistan and china. in the 1962 war with india, china occupied the northern ladakh region called aksai chin, which is rich in mineral resources and has an area of 14,500 square miles.4 the 15 million strong people of kashmir, who share a common heritage and culture over the centuries, are now trapped between the de facto borders. over the last 61 years kashmiri people found themselves wedged between india and pakistan and governed by unrepresentative regimes.5 the bilateral diplomatic peace process between india and pakistan produced no results since 1947. although the un security council resolutions urged the two countries to hold a plebiscite to determine the will of the people,6 these resolutions are still not observed. since 1989 the people of indian administered kashmir (iak) were victims of massive violations7 of individual human rights and after an armed struggle they started claiming their right to self-determination. over the years the debate over the right to self-determination, particularly outside the decolonisation, has been received with little or no interest by the international community. the concept of independence through secession is seen as a “bad recipe”8 and an assault on the territorial integrity9 of the states; 2 j marcus “analysis: the world's most dangerous place?” bbc news, march 23rd 2000 [available at <http://news.bbc.co.uk/1/hi/world/south_asia/687021.stm> accessed on december 11th 2007]. 3 k brew “the re-emergence of nuclear weapons as ‘the coin of the realm’ and “the return of nuclear brinkmanship in south asia: the nuclear sword of damocles still hangs by a thread” (2005) 52 naval l rev 177. 4 a mountjoy (ed) guide to places of the world (reader's digest association limited, 1987) p 19. 5 for rigging of elections in iak see a santos military intervention and secession in south asia (praeger, security international, 2007) pp 70-71. azad kashmir or pakistani administered kashmir may be seen as an autonomous part under pakistan but in practice, elections are not free and fair (july 2006). see k adeney “democracy and federalism in pakistan” in b he, b. galligan & t inoguchi (eds) federalism in asia (london: edward elgar publishing, 2007) p 101 at p103. 6 sc res. 47 (21 april 1948); uncip scr 13 august 1948; and uncip scr 5 january 1949. 7 during the clinton administration both the house of representatives and senate deplored the use of violence and torture by indian security forces against civilians. see house of representatives resolution, h res. 87 of february 22nd 1991 & senate resolution s res. 91 of march 21st 1991. 8 ü enginsoy “greece sees kosovo independence as bad recipe for region”, turkish daily news, february 15th 2008[available at: <http://www.turkishdailynews.com.tr/article.php?enewsid=96422> accessed on december 18th 2008]. the denning law journal 3 therefore it is not accepted. for this reason kosovo’s declaration of unilateral independence left the european union split as to whether they should recognise kosovo or not.10 it sent shock waves around the world especially to countries such as cyprus, greece, romania, bulgaria, slovakia, russia, india and china, who expressed anxiety about the signal that kosovo’s recognition might send to the separatists in their countries.11 for this reason the definition of “people”, for the purposes of self-determination, remains controversial. on the other hand there is no disagreement that “each nation has a unique tune to sound in the symphony of human culture; each nation is an indispensable and irreplaceable player in the orchestra of humanity.”12 the world is a collage of nations and each one is inhabited by a number of disparate populations and groups. all of them have different values of civilisation and tend to define themselves differently as a unit, group, people and nation. the most complex predicament of self-determination is therefore the identification of the units, ie the peoples who are entitled to exercise this right. however, the whole issue is complicated by the fact that today all men and women are more acutely aware of the unit to which they belong and more forcibly express their needs and demands as a group.13 the diverse groups and populations have described themselves differently depending on their choice and circumstances. some groups of indigenous people and minorities have claimed to be the people for the purposes of the right to selfdetermination, which although has increased the ambit of this principle has nevertheless made it contentious. regardless of these controversies, this discourse after critically evaluating the history and culture of kashmir including contemporary non-exhaustive definitions of people within the international law for the purposes of the right to self-determination, would consider whether the people of kashmir correspond to the current description of people. 9 p groarke dividing the state-legitimacy, secession and the doctrine of oppression (usa: ashgate, 2004) p 3. 10 s castle “behind the scenes, eu splits over kosovo” herald tribune february 18th 2008 [available at <http://www.iht.com/articles/2008/02/18/europe/diplo.php>. accessed december 18th 2008]. 11 recognition for new kosovo grows bbc news 24, february 18th 2008. available at <http://news.bbc.co.uk/1/hi/world/europe/7251359.stm#map>. 12 i claude national minorities: an international problem (cambridge: harvard university press, 1995) p 85. 13 h schoenberg “limits of self-determination” (1976) 6 israel yearbook on human rights 91. the creation story of kashmiri people: the right to self-determination 4 ii. historical and cultural background to the kashmir crisis (a) roots of conflict the organic population of kashmir has a lineage that dates back to thousands of years of written history. from the ancient times kashmir was an attraction for various invaders who found their doorway through passes in the mountains ranges of the himalayas, pamirs and hindu kush. there were whirlwind incursions by zulfi khan from mongolia, rinchin from tibet and alexander the great from macedonia in greece in 326 bc.14 the princely state of kashmir was created as an autonomous political entity in 1846 when dogra general gulab singh, the local chieftain of jammu state, helped the british to win the second sikh war. the sikh ruler, who was unable to pay the war indemnity, was forced to forfeit the territory of kashmir to the british instead. the british did not adopt the territory for long, and under the treaty of amritsar 184615 (toa), sold kashmir including gilgit to gulab singh16 for the nominal sum of 75 lakh rupees17 (approximately £100,000). by the toa 1846, maharaja gulab singh acknowledged the supremacy of the british government and had to pay annually a nominal sum of money to the british government.18 this treaty was unique because it provided the dogra rulers full internal autonomy.19 the state of j&k took its final shape only after the dogras united it together with the adjacent conquered territories in various periods.20 the final territory of the princely state of kashmir included the region of jammu, kashmir, ladakh, gilgit and baltistan. politically this was the beginning of a union of diverse ethnic communities speaking a variety of languages such as kashmiri, dogri, gojari, punjabi, pahari, bodhi, balti, burushashki, pashto, tibeto-burman, kohistani, 14 j korbel danger in kashmir (princeton: university press, 1954) p 9. 15 the treaty of amritsar concluded on march 16th 1846 (no. cxxxi). 16 m rai hindu rulers, muslim subjects: islam, rights and the history of kashmir (london: hurst & company, 2004) pp 129-130. 17 art 3 of treaty of amritsar march 16th 1846. 18 s ali and j rehman indigenous peoples and ethnic minorities of pakistan constitutional and legal perspectives (curzon, 2001) pp 117-119. 19 c aitchison a collection of treaties, engagements and sanads relating to india and neighbouring countries (calcutta: foreign office press, vol 11, 1909) pp 165166. 20 maharaja gulab singh started his rule by conquering the neighbouring territories of ladakh in the east in 1834 and conquered baltistan (skardu) in 1840. gilgit agency (gilgit) in the northwest was recaptured by maharaja ranbir singh (gulab singh’s son) in 1860. finally in 1936 maharaja hari singh also controlled jagir (fief) of poonch. the denning law journal 5 khowar, urdu and shina/dardi.21 the dogra dynasty ruled j&k for a century as totalitarian autocrats unleashing a tyrannical rule over the people.22 in 1931, unlike any other princely state, people in kashmir became aware of their political rights and started a united rebellion against dogra repression. this political awareness is seen as the first claim for the right to selfdetermination in the history of kashmir.23 the 1947 fall was the most poignant defining moments in the history of the subcontinent, which coincided with the end of british empire24 and creation of two independent states on august 15th 1947. the two new dominions of india and pakistan were carved out of british india on the basis of two-nation theory.25 the mainstay guide in the theory asserts a separate state of pakistan for muslims to avoid their likely domination by the majority hindus of india. the princely india consisted of almost 584 states scattered across the british indian empire.26 kashmir was a muslim majority princely state with an 80 percent muslim and 20 percent minority population, which included hindus, sikhs and buddhists.27 on may 12th 1946, the british cabinet mission memorandum was passed which ended the paramountcy and declared that all princes were free to accede or remain independent.28 at that time the maharaja of kashmir hari singh decided to remain independent and did not accede to british india.29 in this regard it is argued that british india recognised kashmir as a separate territory by conferring on its inhabitants the choice to remain independent, and hence considered kashmiris to be people within the pre-1947 borders. threatened by the poonch revolt in 1947 and tribal invasion from north west frontier province (pakistan), hindu maharaja hari singh sought assistance from india, which was perhaps a natural choice for him. india, 21 above n 18, at 118. 22 w thomson a memoir of william jackson elmslie (london: james nisbet & co, 3rd edn, 1881) pp 76 77. 23 h sender the kashmiri pandits a study of cultural choice in north india (new delhi: oxford university press, 1988) p 4. 24 m siraj kashmir: desolation or peace (london: minerva press, 1997) p 37. 25 at the lahore session of the muslim league in march 1940, mohammad ali jinnah introduced the resolution, which included the demand of pakistan although the term was itself avoided. it was in this resolution jinnah asserted that the muslims of india are a nation by any definition of the term and came to be called “two nations theory”. 26 b ramusack the cambridge history of india the indian princes and their states (cambridge: university of cambridge, 2004) p 2. 27 birdwood india and pakistan (new york: frederick a praeger, 1954) p 302. 28 cabinet mission memorandum command paper 6855 (may 12, 1946). 29 maharaja hari singh was the last dogra ruler. see, w baker kashmir, happy valley, valley of death (defenders publication, 1994) p 21. the creation story of kashmiri people: the right to self-determination 6 however, refused help without maharaja’s accession to india. maharaja hari singh signed the instrument of accession (ioa) with india on october 26th 1947 without the wishes of the people of kashmir who happened to be a muslim majority.30 the ioa was however conditional to the plebiscite and limited to defence, communications and foreign affairs.31 it was followed by war between india and pakistan on october 27th 1947.32 in 1948 india brought the kashmir question to the attention of the security council (sc) pursuant to art 35 under the un charter (unc). after international deliberations, sc resolution (scr) 47 of april 21st 1948 was passed advocating a two tier solution of demilitarisation and a plebiscite for deciding the status of the territory of kashmir. sc noted that: the question of accession of jammu and kashmir to india or pakistan should be decided through the democratic method of a free and impartial plebiscite.33 the subsequent scrs reiterated the demilitarisation and plebiscite provision of resolution 47;34 however, they were not abided by india or pakistan. in 1949, despite the disagreement between india and pakistan as to demilitarisation, the un commission obtained a ceasefire agreement between them. on july 27th 1949 india and pakistan reached an agreement on the demarcation of the ceasefire line,35 which created a de facto border. the unbrokered ceasefire divided the princely state of jammu and kashmir into indian administered kashmir (iak) consisting of ladakh, jammu and kashmir valley; and pakistani administered kashmir (pak) comprising of mirpur, muzaffarabad, gilgit and baltistan. the un acted by the deployment of the first un military observer group in india and pakistan (unmogip) to kashmir to supervise the ceasefire line in the state, which still remains functional. the cessation of hostilities did not remain operative for long and india and pakistan found themselves locked in wars in 1965, 1971 and 1999. on july 2nd 1972, after the bangladesh war, the 30 a singh “the right of self-determination: is east timor a viable model for kashmir?” (2001) 8 no 3 human rights brief 9. 31 v schofield kashmir in the crossfire (new delhi: viva books private ltd, 1997) p 148. 32 m siraj towards peace in jammu, kashmir and ladakh (india: manas publications, 2003) pp 45 46. 33 above n 6, para [b (7)]. 34 uncip resolutions august 13th 1948 & january 5th 1949; scr 91 (march 30th 1951); 96 (november 10th 1951); 98 (december 23rd 1952); 122 ( 1957); and 126 (december 2nd 1957). 35 agreement regarding the establishment of cease-fire line in the state of jammu and kashmir, july 27th 1949, 81 unts 273. the denning law journal 7 two countries signed the simla agreement,36 which renamed the ceasefire line as line of control (loc). the simla agreement could be seen as a landmark on bilateral relations between these two nations who decided “to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them”.37 india after this agreement took the position that the kashmir question is to be solved by “bilateral negotiations and rejected the un involvement”.38 however, it continues to remain the central plank of pakistan’s policy to decide the kashmir issue through un involvement.39 in this context it is important to mention firstly that the kashmiri people were not a party to this agreement and for this reason it is arguable that it cannot dispossess them of the right to plebiscite granted by sc. secondly, the scrs take precedence over the simla agreement, particularly because india and pakistan have a disagreement over the resolution of the kashmir issue. in this background article 103 of unc makes it clear that: “in the event of a conflict between the obligations of the members of the united nations under the present charter and their obligations under any other international agreement, their obligations under the present charter shall prevail.” for these reasons and the subsequent kargil war (1999), unaided bilateralism created by the simla agreement remains a less significant proposition to decide the future of the territory of kashmir. since the 1950s, india gradually backed out of its commitment to scrs and began its campaign to constitutionally incorporate entire territory of the princely state of jammu and kashmir into its union. india nominated the state constituent assembly for jammu and kashmir for the purpose of legalising the contested accession by conducting elections that are known to be rigged.40 this assembly consisted of local political party “all jammu and kashmir national conference” (nc) that won an election in which the nomination papers of all other candidates except the nc members were 36 the simla agreement was signed between zulfikar ali bhutto (then president of islamic republic of pakistan) and indira gandhi (then prime minister of republic of india) in simla on july 2nd 1972. 37 the simla agreement 1972 at para [1(ii)]. 38 c snedden “would a plebiscite have resolved the kashmir dispute?” (april 2005) vol. xxviii no. 1 journal of south asian studies, pp 65-86 at p 64. 39 above n 31, at p 289. 40 b singh autonomy or secession jammu and kashmir (india: har-anand publications pvt ltd, 2001) p 12. the creation story of kashmiri people: the right to self-determination 8 rejected, hence “winning unopposed.”41 it is this assembly that was given the responsibility to draft the new constitution of kashmir, which came into force in 1957, determining kashmir as an integral part of india.42 it is submitted that both the state constituent assembly as well as the new constitution of kashmir was formed in violation of the scr 91 (1951) and 122 (1957), which rejected any action of this assembly to determine the future shape and affiliation of the entire state of jammu and kashmir.43 despite these scrs today, iak is tied to the union of india through art 370 of the indian constitution, which is supposed to gives kashmir a special status. this article affirms that indian laws would be applied in jammu and kashmir in concurrence with the state government’s endorsement.44 however, india soon forgot this commitment and began to transport unilaterally central laws into the state.45 although the autonomy of kashmir is protected by the terms of the accession deed albeit, this status has been superseded and not respected by india.46 since 1947, the people in iak have lived under the unrepresentative governments and elections are rigged and people are forced to vote under the shadow of the gun.47 this practice continues unabated, which is clear by the 2008 elections that were marred by violence, boycott and curfews.48 pakistan rules gilgit and baltistan from islamabad through the northern areas council and its political relations with azad kashmir are controlled by the karachi agreement of april 28th 1949. the people in the gilgit-baltistan area are unsettled and believe that their political future is linked with jammu and kashmir state.49 the northern areas are economically backward despite the fact that it has vast natural resources of timber and a potential for tourism. their human rights are compromised including opportunities for education 41 ibid, p 40. 42 fo 371/129777: dy1041/46 (e): outward telegram from commonwealth relations office to uk high commissioner in canada, australia, india and pakistan february 16th 1957 [the national archives, london]. 43 scr 91(1951) preamble; and scr 122 1957 para [1]. 44 abhyankar, “constitution of india” in flanz (ed) constitutions of the countries of the world (new york: oceana publications, 1997) pp 147 -148. 45 s bose kashmir (harvard university press, 2003) pp 45-46. 46 r bruce mccolm freedom in the world (new york: freedom house, 1993) p 570. 47 s ganguly the crisis in kashmir: portents of war, hopes of peace (cambridge: cambridge university press, 1997) p 84. 48 m ahmad “protesters, security forces clash during kashmir elections” cnn.com/asia november 23rd 2008. available at <http://edition.cnn.com/2008/world/asiapcf/11/23/kashmir.elections/> accessed january 3rd 2009. 49 in this regard balawaristan national front, a political party was formed on july 30th 1992, which put forth the illegal occupation of the area at the hands of pakistan. see <www.balawaristan.net/> accessed on december 30th 2008. the denning law journal 9 resulting in the literacy rate of just 14 percent for men and 3.5 percent for women.50 in iak from 1989 the political uprising against the indian occupation resulted in the open confrontation between the insurgent groups and the indian army. there was a popular demand for the right to self-determination a right ostensibly denied to the people ever since the sc, india and pakistan promised them a plebiscite in 1947. in the counter-insurgency process, india deployed 700,00051 troops to kashmir, which is the largest soldiers-to-civilian ratio in any conflict of the world. in proactive anti-insurgency operations the indian army perpetrated many human rights violations such as extra-judicial killings, custodial killings, disappearances, rape and torture.52 over the years thousands of kashmiri people have been arrested in search operations and many homes, schools and institutions were gutted. approximately 8-10,000 people have disappeared after arrest and more than 80,00053 people have been killed also creating 2.05 million displaced people.54 all of these human rights violations are well documented by the human rights watch,55 amnesty international,56 physicians for human rights,57 and indigenous human rights organisations such as the coalition for civil societies.58 the us state department country report on human rights practices for india (2000) asserts that throughout indian-held kashmir, human rights violations are prevalent. in particular the report notes that it is widespread to have: “extrajudicial killings, including faked encounter killings, deaths of suspects in police custody . . . and excessive use of force by security 50 b raman “unrest in gilgit-baltistan” paper presented at a seminar on india's himalayan frontiers at the school of international studies of the jawaharlal nehru university, new delhi february 5th 2005. available at <http://www.saag.org/papers13/paper1241.html> accessed on december 17th 2008.> 51 r knuth burning books and leaving libraries extremist violence and cultural destruction (westport: praeger, 2006) p 77. 52 unreported world: killing of kashmir channel 4 documentary april 8th 2004. 53 cnn.com-kashmir “terror group warning” february 4th 2002. [available at: <http://edition.cnn.com/2002/world/asiapcf/south/02/04/india.kashmir/index.html > accessed 5 july 2005]. 54 public commission on human rights state of human rights in jammu and kashmir 1990-2005 (new delhi: hindustan printers, 2006) p 38. 55 hrw everyone lives in fear: patterns of impunity in jammu and kashmir vol. 18 no 11(c) september 2006. 56 hrw india: abuse of the psa in jammu and kashmir amnesty international ai index asa 20/13/00 april 2000. 57 physicians for human rights (uk), kashmir 1991: health consequences of the civil unrest and the police and military action (dundee, 1991). 58 s kak jashn-i-azadi (celebrating freedom) documentary on kashmir 2007. the creation story of kashmiri people: the right to self-determination 10 forces combating active insurgencies, and torture and rape by police and other agents of the government . . . arbitrary arrest and incommunicado detention in jammu and kashmir . . .”59 unrelenting human rights abuses and the absence of safeguard mechanisms have been construed to indicate compromised law and order situations in kashmir. the troops stationed in kashmir have been given carte blanche authority to kill at sight, a practice backed up by the draconian laws.60 under the public safety act 1978 (as amended in 1990), a detainee may be held under administrative detention for a maximum of two years without a court order. similarly, the armed forces (special powers) act 1958 that was introduced in j&k in december 1990 after declaring kashmir and most of the jammu province as disturbed areas gave the army unfettered powers to arrest people and thus reinforced impunity. under s 3 of this act the army can arrest people without warrant and under s 4 (a) have power to shoot with intention to kill. the security force officials involved in committing human rights abuses generally enjoyed de facto impunity, although there were reports of investigations into individual abuse cases.61 in this context, the report of the us department of state on human rights practices for india (2000) further states: “problems have heightened in kashmir, where judicial tolerance of the government's heavy-handed counterinsurgency tactics, the refusal of security forces to obey court orders, and terrorist threats have disrupted the judicial system . . . the number of insurgency-related killings in kashmir by regular indian security forces has increased.”62 this lack of firm accountability has encouraged the security forces in establishing an environment in which human rights violations remain unpunished. although india has numerous laws protecting human rights, 59 us department of state, country reports on human rights practicesindia 2000, released by the bureau of democracy, human rights, and labor february 23rd 2001. available at <http://www.state.gov/g/drl/rls/hrrpt/2000/sa/717.htm> accessed december 25th 2008. 60 jammu and kashmir armed forces (special powers) act 1990, the prevention of terrorism act 2002, jammu and kashmir public safety act 1978 and the terrorist and disruptive activities (prevention) act 1987. 61 us department of state, country reports on human rights practices-india 2005, released by the bureau of democracy, human rights, and labor march 8th 2006. available at <http://www.state.gov/g/drl/rls/hrrpt/2005/61707.htm> accessed on december 25th 2008. 62 above n 59. the denning law journal 11 enforcement is lax and convictions very rare.63 in addition kashmiris have also suffered human rights abuse by militant groups which include widespread torture, rape and other forms of violence including kidnapping and extortion.64 the perpetrators remain nameless and their crimes unrequited. furthermore, frequent cross border firing at the loc between the indian and pakistani armed forces has killed thousands of people living on both sides, forcing local populations to migrate.65 over the years, kashmir has also suffered economically as a result of unremitting violence. the devastating earthquake in the region surfaced an important clue that from the last 61 years no roads were built in this region, which literally put a halt to the rescue and relief operations there. this lack of basic infrastructure resulted in an increased death toll to more than 80,000 people which was a great catastrophe seen ironically against the investment of millions to maintain armies in this region.66 asset stripping of kashmir is commonplace and natural resources like water, power, forest products and minerals are exploited by india and pakistan for their own uplift, rather than for the benefit of the people of kashmir.67 (b) kashmiriyat the way of life despite the political turmoil and de facto division of kashmir, the special cultural bond of kashmiriyat unites the people. the ethos of kashmiriyat is a thirteenth century principle that was spawned due to religious activities of the shaivites68 and sufis69 in kashmir. the hindu and muslim religions continued to flourish side by side and nourished the united culture of kashmir. during this time a large part of the population in the kashmir valley converted to islam after the preaching of sufism impressed them. the sufi saints came to kashmir and among them the most famous sheikh-noor 63 ibid. 64 ibid. 65 n khan “human rights violations and right of self-determination of kashmiri people in the light of historical facts.” available at <http://kashmir.ahrchk.net/mainfile.php/documents/14/> accessed on december 17th 2008. 66 the independent november 24th 2005 pp 1-2. 67 j d howley “alive and kicking: the kashmir dispute forty years later” (1991) 9 dickinson journal of international law 87 at 88-89. 68 also called shaivism, sivaite and sivaism. it is a sect of hinduism, exclusively devoted to the worship of the god siva as the supreme being. see <http://dictionary.oed.com/cgi/entry/> accessed on 30th march 2006. 69 sufism is the mystical and spiritual system of the sufis islam. sufis is a sect of muslim ascetic mystics who embrace pantheistic views of islam. the creation story of kashmiri people: the right to self-determination 12 ud-din70 was revered by kashmiri people (both hindus and muslims) as nand rishi.71 sufism in kashmir not only popularised islam but also laid a humanist foundation for the cultural harmony. this resulted in an inherent openness in the kashmiri culture that allows relative freedom of religion and philosophical beliefs. the influences of hinduism (shaivism) and sufism made the kashmiri identity truly distinct. the people of kashmir therefore support mutual coexistence and universal brotherhood and that today could be translated as a concept akin to democracy, secularism, social justice, and human rights.72 this concept has permeated through all the kashmiri communities including azad kashmir, internally displaced kashmiris, kashmiri diaspora73 and the kashmiri pundits who were forced to migrate to jammu in 1990.74 in fact a new form of kashmiriyat has developed over time, which binds the displaced kashmiri people in empathy with those who stayed back. for the last 61 years from across de facto borders and within kashmiri diaspora, there has been a special bond associated with their sense of kashmiriyat75 which gives them a sense of cohesion rather than division. it is this special bond that they truly cherish and desire to protect. 70 a tandon “the need for community involvement in preventing and responding to heritage emergencies in jammu and kashmir.” available at <http://icom.museum/disaster_preparedness_book/country/tandon.pdf> accessed on march 30th 2006. 71 the kashmiri pandits also call him sahzanand. kashmiri hindus adapted to the way of life of sufi islam. for example kashmiri hindus were the only saraswati brahmins eating non-vegetarian dishes and would eat halal meat so very peculiar to muslims. see i bakhshi “where shaivism meets sufism.” available at kashmir live <http://www.kashmirlive.com/kashmirlive/cult1.html> accessed on march 31st 2006. 72 r paul “reviving ethics in strife-torn kashmir”, june 2005. available at <http://www.changemakers.net/journal/300506/paul.cfm> accessed march 30th 2006. 73 p ellis and z khan “kashmiri displacement and the impact on kashmiriyat” (2003) 12(4) contemporary south asia 523 at 523. 74 see “pandits welcome, but no homeland” geelani greater kashmir, april 20th 2006. chairman of a hard-line faction of hurriyat conference, syed ali shah geelani addressing to the delegation of hindu welfare society of kashmir said the people of the kashmir valley would welcome the return of pandit migrants to their homes. he said, “people of kashmir have launched their struggle against the indian occupation and not against any religion or people of india. . . hurriyat demands right to selfdetermination for the people of jammu and kashmir irrespective of cast, creed, colour or religion.” 75 n ali, p ellis and z khan “the 1990s: a time to separate british punjabi & british kashmiri identity” in g singh & i talbot (eds) punjabi identity: changes and developments (new delhi: manohar, 1996); p ellis and z khan “diasporic mobilisation and the kashmir issue in british politics” (1998) 24 (3) journal of ethnic and migration studies 471. the denning law journal 13 iii. genesis, meaning & definition of “peoples” within international law and its applicability to kashmir in europe towards the beginning of the seventeenth century, the authoritarian power and rule by the religious groups was diminishing and the concept of nations and international community was gaining ground.76 during this period the command of the sovereign was a source of sovereignty within the state. the fundamental goal of the principle of popular sovereignty was to transfer sovereignty from the ruler to the “peoples.” consequently, individual allegiance to the monarch passed to state.77 the american, french78 and bolshevik revolutions became significant in shaping the modern form of the self-determination of peoples, which focused on the popular sovereignty.79 it was only after the first world war and paris peace conference of 191980 that the right to self-determination started to transform from the political principle to its present authoritative status in international law. the meaning of “people” expanded with the need and choice of people within nation-states. during that time two significant theories of selfdetermination were used to define the people, which koskenniemi describes as classical and romantic theory.81 according to the classical theory of selfdetermination people were essentially identified within territorial terms. for example during the french revolution the uprising was seen taking place within the established territorial framework and state identity was determined only by nationality. on the other hand germany utilised the romantic theory of self-determination in which german people are identified on the basis of a cultural group based upon a common history and language as the volk. it became necessary because historical conditions obligated the united german nation to develop the german state. 76 a nussbaum a concise history of laws of nations (new york: 1962) p 1. 77 p radan break-up of yugoslavia and international law (london: routledge, 2001) p 8. 78 b wells “united nations decisions on self-determination” (new york university, 1963) pp 1-14. 79 t frank “post-modern tribalism and the right to secession” in c brolmann, r lefeber and m zieck (eds) peoples & minorities in international law (martinus nijhoff publishers, 1993) pp 3-27, especially p 6. 80 the paris peace conference and the treaty of versailles: the remaking of europe in 1919. available at <http://www.nv.cc.va.us/home/cevans/versailles/index.html> accessed on april 14 2006.th 81 the ‘classical’ and ‘romantic’ labeling of self-determination theories is adopted from m koskenniemi “national self-determination today: problems of legal theory and practice” (1994) 43 iclq 249. the creation story of kashmiri people: the right to self-determination 14 keeping in view the history of kashmir, kashmiris can utilise both of these theories to describe them as people and become the legal aspirants of self-determination. utilising the classical theory, kashmiris at the time of decolonisation could be identified as a population which had a right to determine its future within the territorial limits. on the other hand, in employing the romantic theory, kashmiris can rely on their ethnicity of kashmiriyat to recognise them as a people, which has given them a sense of belonging to a specific group that has a common history and culture. (a) decolonisation definition: people within the territorial limits in the post-second world war setting self-determination of peoples became most closely associated with decolonisation. during this time the concept of people was interpreted to mean total population inhabiting a territory occupied by a foreign power. the legal basis to claim selfdetermination stemmed from brief suggestions to the “principle of equal rights and self-determination of peoples” in arts 1(2) and 55 of the unc. art 1(2) declared that one of the purposes of the unc is: “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.”82 during the decolonisation period there was a lot of confusion as to the exact contours of the description of “people.” in 1951, kelsen defined “people” by equating people to “state” and concluded that peoples in the same clause meant states.83 however, the travaux preparatoires to the unc reveals that drafters never intended the term “people” to denote states. the committee expressly made it clear that art 1(2) “extends to states, nations and peoples”.84 the decolonisation definition of “people” also appears in the resolution 1514(xv) which focuses on the maintenance of the territorial integrity in the non-self-governing85 territories (nsgt). this resolution corresponds with the international principles of territorial integrity, the inviolability of state borders, sovereignty and uti possidetis.86 the principle 82 b simma (ed) the charter of the united nations a commentary (oxford: oxford university press, 1994) p 49. 83 h kelsen the law of the united nations: a critical analysis of its fundamental problems (london: stevens, 1951) p 52. 84 (1945) 6 uncio 704. 85 unga res. 1514 (xv) (december 14th 1960) para [6]. 86 s ratner “drawing a better line: uti possidetis and the borders of the new states” (1996) 90 ajil 590. the denning law journal 15 of uti possidetis started off as a roman law concept regulating private property, especially possession. if possession of a property was achieved in good faith and not by the use of force or any fraudulent means, roman magistrates applied the famous rule of ita possideatis ie “as you possess, so you may possess.”87 this concept gradually entered into the realm of international law defining sovereign rights over state territory and borders of newly formed states on the basis of their previous administrative frontiers.88 during the end of the second world war and process of decolonisation, the territorial delimitation of new states was based on uti possidetis, which was meant to coincide with their national frontiers with the former colonial borders.89 in sovereignty over certain frontier land90, two latin american judges armand-ugon and moreno quintana of the icj held that the practice of uti possidetis had crystallised into the general principle of law. using the uti possidetis principle during the decolonisation process, people were defined within the territorial borders of nsgt and no consideration was given to their disparate culture, religion or language. it was believed that these people through the process of nation building would overcome these differences.91 therefore, the un became very much averse to permit partition of nsgt, irrespective of their diverse constituent ethnic minorities or religious groups. for this reason the ga approved the transfer of west irian by the netherlands to indonesia even though the population of west irian differed significantly from that of indonesia in terms of race, ethnicity, language and culture. the ga endorsed the arguments of indonesia that such differences are irrelevant, given the fact that west irian had been a part of the nsgt under the netherlands east indies.92 likewise, the sc took action to stop the partition of cyprus into two political entities despite the fact that there was a deep-rooted tension between greek and turkish cypriots.93 87 w reisman “protecting indigenous rights in international adjudication” (april 1995) 89 (2) ajil 352 footnotes 8 and 9. 88 e hasani “uti possidetis juris: from rome to kosovo” (2003) 27 fletcher forum of world affairs 85 at 86. 89 ibid, at 87. 90 [1959] icj rep 240 & 255. 91 j humphrey “preventing discrimination and positive protection for minorities: aspects of international law” (1986) 27 cahiers de droit 23 at 25. 92 ga res. 1752 (xvii) (september 21st 1962). similarly, the ga resolutions 2230 (xxi) of december 20th 1966 and 2355 (xxii) of december 19th 1967 were moved to ensure the continued union of the rio muni and the island of fernando po which together constitute equatorial guinea. 93 sc res. 541 (november 18th 1983); j maguire “the decolonisation of belize: selfdetermination vs territorial integrity” (1982) 22 virginia journal of international law 849 at 864. the creation story of kashmiri people: the right to self-determination 16 recollecting the history of kashmir, kashmiris emerged as people within the decolonisation definition of self-determination. under the decolonisation definition of self-determination people of kashmir can therefore be described as “an organic whole population within pre-1947 territorial limits.” keeping in view the uti possidetis principle and decolonisation definition of people, it is arguable that the subsequent de facto divisions of the territory of kashmir between india, pakistan and china were legally invalid. for the purposes of nation building kashmiris could therefore be classified as people within art 1(2) of unc as a nation. this argument is also validated by the fact that british india and the un recognised kashmiris as a people.94 at the time of the decolonisation of the indian subcontinent, the british identified kashmir as a territory and the kashmiris as a people by giving them the choice to remain independent in pre-1947 colonial borders under the cabinet mission memorandum, 1946. on the other hand, the un identified kashmiris as a people by letting them determine their future through a plebiscite in the postcolonial era, and as discussed, the same was put in place by the scrs. (b) non-representative government: people outside territorial limits with the expanding scope of right to self-determination, it became increasingly difficult to restrict the meaning of “people” to colonial or dependent peoples. para 7 of resolution 2625 (xxv) declared that: “nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair . . . the territorial integrity of independent states conducting themselves in compliance with the principle of equal rights and selfdetermination of peoples . . . thus possessed of a government representing the whole people belonging to territory without distinction as to race, creed or colour”.95 this paragraph has been understood to mean that protection of territorial integrity of a sovereign state is conditional to the existence of the representative government.96 the right to self-determination can therefore be claimed by the people in many situations including in “cases in which the government of a state is unrepresentative of its peoples by virtue of the fact 94 sc resolution adopted by uncip august 13th 1948 part ii b (1); sc resolution adopted by uncip, january 5th 1949, para [1]. 95 ga res. 2625 (xxv) october 24th 1970. 96 m pomerance self-determination in law and practice (the hague: martinus nijhoff, 1982) p 39. the denning law journal 17 that it excludes a distinct group from equal participation in political life”.97 embodying the unrepresentative government definition of people the helsinki declaration98 affirms: “all peoples always have the right . . . to determine, when and as they wish, their internal and external political status, without external interference, and to pursue as they wish their political, economic, social and cultural development.”99 hence, in the post-colonial era a possibility is generated to define the people outside territorial integrity if they are discriminated against by their own government on the basis of their culture, religion and ethnicity. however, this enthusiasm to extend the definition of people outside the traditional system is ridiculed to avoid secession. this statement can be affirmed by the comments of pomerance,100 hannum101 and cassese.102 these authors maintain the limited scope of resolution 2625 (xxv) by pointing out that secession is only justifiable if the state government underrepresents its peoples. on the other hand, buchheit visualises it as part of a broader perspective based on the premise that oppression legitimises secession. he believed that international law recognises a continuum of remedies ranging from protection of individual rights to minority rights, and ending with the secession as an ultimate remedy.103 in other words oppressed people living under a non-representative government could qualify as people for the purposes of self-determination. in the aftermath of an impromptu but welcoming end to autocratic rule in 1947, people in iak were forced to live under non-representative regimes nominated by india.104 the successive nominated governments were pressed 97 saskatoon recommendation on self-determination, world conference on human rights, 1993. this recommendation refers to right to self-determination as a continuous right, it can be used to avoid or remedy the human rights abuses and it can entitle a particular population the right to secede. 98 (1975) 14 ilm 1292. this declaration is also known as final act of the conference on security and cooperation in europe (csce). 99 above n 96. 100 ibid. 101 h hannum autonomy, sovereignty and self-determination (philadelphia: university of pennsylvania press, 1990) p 473. 102 a cassese “political self-determination: old concepts and new developments” in a cassese (ed) un law/fundamental rights (netherlands: alphen aan den rijn, sijthoff & noordhoff, 1979) p 145. 103 l buchheit secession (new haven: yale university press, 1978) p 222. 104 above n 5. india integrated kashmir into its constitution unlike pakistan which believes the final disposition of kashmir will be decided by a un held plebiscite. the creation story of kashmiri people: the right to self-determination 18 to frame laws in order to integrate kashmir into the union of india. the incorporation process was carried out while ignoring the scr 91(1951) and 122 (1957), which affirmed that any action taken by the state assembly will not change the final disposition of the kashmir dispute. the new constitution of jammu and kashmir 1957 was adopted in contravention of the scrs and does not respect the fundamental rights of the people of kashmir. the fundamental rights in the constitution of india 1950 are extended to kashmir with unacceptable modifications. the curtailment of art 19 (right to freedom) in kashmir for example violates their right to peaceful assembly, form associations or unions and move freely.105 the judiciary in kashmir cannot guarantee this right like the other high courts in india can.106 in this context, anand states that “it is hoped that when normal conditions are restored these curtailments on the rights of kashmiri people will be removed.”107 likewise, kashmiri muslims are an exception to the national commission for minorities act 1992 (ncm),108 despite the fact this legislation enumerates five religious communities including muslims as a minority within india. at present kashmiri muslims comprise only 2 percent of the 13.80 percent muslim population within india109 which should warrant them the minority status within india. on the other hand the people in pak are economically deprived, which became evident during the earthquake of 2005. for the purposes of resolution 2625 it is arguable that the nonrepresentative government in kashmir sustains the self-determination argument in the post-colonial era. (c) human rights violation link to self-determination the meaning of the term “people” during the decolonisation era from late 1940s through 1960s was predominantly seen as the population of a defined territorial unit. however, during this era a parallel view emerged that the concept of “people” may be defined in reference to other criteria such as the presence of human rights violations. this link was established in 1950 when ga recognised the right to self-determination as a fundamental human 105 art 19 of the constitution of india 1950. 106 a anand the constitution of jammu & kashmir-its development & comments (new delhi: universal law publishing co pvt ltd, 4th edn, 2004) p 166. 107 ibid. 108 the act (xix of 1992) was passed on may 17th 1992 and was enforced with effect from may 17th 1993. it was amended by the national commission for minorities (amendment) act 1995 passed on september 8th 1995 for creating the post of vicechairman. 109 see <http://en.wikipedia.org/wiki/demographics_of_islam> accessed january 6th 2007. the denning law journal 19 right.110 in resolution 545(vi) of 1952, ga decided that the international covenant on human rights should include the right of all peoples and nations to self-determination.111 this approach was taken at a time when the ethnic differences started to threaten the future stability of the colonies. for example, the division of palestine into jewish and arab states112 was justified on this basis. keeping up with this thought the world conference on human rights underlined the importance of an effective realisation of the right to self-determination by considering its denial as a violation of human rights.113 in the debate over definition of “peoples”, self-determination surfaced as the “fundamental human right”. the common art 1 of the international covenant on civil and political rights (iccpr) 114 and the international covenant on economic, social, and cultural rights (icescr)115 included the right of self-determination for peoples. art 1(1) of both human rights covenants provides that all peoples have the right to self-determination and by virtue of this right they can freely determine their political status and freely pursue their economic, social and cultural development. this right encourages people to choose their political status in the post-colonial world. the right to self-determination, which includes economic self-determination, has been clearly established as a right in international law and forms a part of the norms of jus cogens.116 consequently, the right to self-determination of peoples as provided for in the covenants is therefore a continuing right and a permanent one.117 art 1(2) of these two covenants provides that people of a 110 unga res. 421 (v) (december 4th 1950) para [6]. 111 unga resolution 545 (vi) (february 5th 1952) para [1]. 112 resolution 181 (ii) (november 29th 1947). the resolution 181 (ii) approved with minor changes the plan of partition with economic union as proposed by the majority in the special committee on palestine. the partition plan attached to the resolution provided for the termination of the mandate, the progressive withdrawal of british armed forces and the delineation of boundaries between the two states and jerusalem. however, the adoption of resolution 181 (ii) was followed by outbreaks of violence in palestine. 113 world conference on human rights: vienna declaration and programme of action 1993 (vienna, june 14-25th) a/conf.157/23, july 12 1993, para [2]).th 114 international covenant on civil and political rights adopted at new york, december 16th 1966 and entered into force on march 23rd 1976 ungaor 2200a (xxi) 999 unts 171. 115 international covenant on economic, social and cultural rights, adopted at new york 16th dec. 1966 and entered into force on january 3rd 1976. un gaor, 2200a (xxi), 993 unts 3; article 20 (1) of afchpr refers to “the inalienable right to selfdetermination of all peoples.” 116 j rehman international human rights law – a practical approach (longman, 2003) p 109. 117 comment made by the chairman of the working party of the third committee when presenting the draft to the third committee un doc. a/c.3/sr. 668 para [3]. the creation story of kashmiri people: the right to self-determination 20 sovereign state have the right to utilise their natural wealth and resources for their own requirements and the governments chosen are expected to exploit natural territorial resources for the profit of people living there. similarly, art 1(3) of these covenants guarantees the people of dependent territories (nonself-governing & trust territories) the right to decide their international status. india has reserved common art 1 of these covenants, arguing that the right to self-determination does not directly affect an independent state because it applies to people under foreign domination and not to people of sovereign independent states or to a section of people in a nation, which is the essence of national integrity.118 however, france, the federal republic of germany and the netherlands objected to the reservation on the grounds that the right to self-determination applies to all peoples.119 in reference re secession, the supreme court of canada favoured self-determination as a human right.120 consequently, it is evident from both the textual analysis of major international instruments and from a review of un practice that the term “people” cannot be limited to the population of nsgt. the purpose of the development of the right to self-determination was part of the international community's vigorous attempts to eradicate the oppression of individuals and the groups by the states.121 subsequently, if the need arose, people could be identified outside the territorial limits as human rights violation victims. in view of this discussion, it is clear that the people of kashmir can be classified as human rights victims who are under reprehensible regimes. in iak, india is committing gross human rights violations to suppress the claim for the right to self-determination.122 it is arguable that such a violent behaviour also qualifies as aggression. the definition of aggression does not prejudice the right to self-determination of peoples who are forcibly deprived of this right and particularly so if they are under an alien domination.123 likewise, the people of pak are victims of economic violence and oppression and can succeed as people for the purposes of the right to self-determination. 118 for the text of the reservation, see un human rights, status of international instruments un doc. st/ hr/5 1987 p 9; multilateral treaties deposited with the secretary general: status as at 31st december 1994 (new york: united nations, 1995) 109. india's ratified iccpr on april 10th 1979. 119 un human rights, status of international instruments (1987) un doc. st/ hr/5, 18. 120 161 dlr (1998) 385, 437. the court in this case also showed the inclination towards the ethnic definition of “peoples”. 121 art 4, vienna declaration and the programme of action arising from the united nations world conference on human rights in 1993; m riesman “sovereignty and human rights in contemporary international law” (1990) 82 ajil 866. 122 t mcgirk “kashmiri student tells of torture” the independent may 25th 1993. 123 art 7 of res 3314 (xxix) 2319th meeting december 14th 1974. the denning law journal 21 (d) ethnic and minority groups & definition of 'peoples' in the post-colonial era up to the 1970s, ga continued to refer to certain specific ethnic groups as “peoples” like the people of bangladesh.124 the majority of east pakistan was a bengali speaking ethnic minority group and was able to separate from west pakistan and form a new nation. this constitutes the implicit recognition of ethnic groups as peoples who share a common culture, language, religion, ideology, geography and territory. during the nineteenth century ethnic affinity has been defined by the concepts of nation, nationality or nationalism. as far as the definition of these terms is concerned no single definition was approved and each definition had significant exceptions attached to it.125 however, the ethnic and minority definition has a common similarity of reliance on both an objective and subjective level. in other words it meant that ethnic groups are not only to be identified as people but these acknowledged groups should also demonstrate the subjective element of awareness to preserve their distinct identity. the ethnicity has played a crucial role in most of the contemporary armed conflicts and political struggles around the world.126 under this definition it is submitted that kashmiris share a common culture that transcends their religious and linguistic diversity. it is the common ethos of kashmiriyat that unites the people of kashmir. as a part of india and pakistan, kashmiris are a minuscule minority very much delineated from the people of both countries. it is particularly so because kashmiris have maintained their cultural identity of kashmiriyat as a distinct group and could be pictured as people in their own right. hence, kashmiriyat like han chinese monolithic civilization127 exerts a powerful and unifying influence on kashmiri people producing cultural unity among them. within the terms of definition offered by the united nations educational, scientific and cultural organization (unesco) 1989, kashmiris also qualify as a people. according to this definition, a group of individuals apart from having some elements in common like history or culture should “have the ‘will’ to be 124 bangladesh on september 17th1974 by ga resolution 3203 (xxix) was recognized as un member state. 125 a cobban the nation-state and national self-determination (new york: thomas y. crowell, 1969) p 107. 126 s lawson “self-determination as ethnocracy: perspectives for the south pacific” in mortimer sellers (ed) the new world order (oxford: berg, 1996) pp 153-174 at p 153. 127 y fung a short history of chinese philosophy (london: collier-macmillan, 1948) p 181. the creation story of kashmiri people: the right to self-determination 22 identified as a people or the consciousness of being a people.”128 the people of kashmir not only have a common culture but also have zeal to protect it, which is clear by the fact that they have kept the kashmir issue alive over the last 61 years. iv. summary: some core principles from the previous discussion of peoples it became clear that with the changing trend, the un has not limited the use of the term “people” to colonial people but recognised the right to self-determination of many noncolonial peoples including the people of south africa and palestine.129 this fact is corroborated by the icj ruling in western sahara, where the court after referring to the key provisions of the resolution 1514(xv), 1541(xv) and 2625(xxv) concluded that it was necessary in the process of selfdetermination, “to pay regard to the freely expressed will of the peoples.’130 therefore, international law affords primacy to people and their rights flow from that position.131 as discussed, the definition of people in context to right to self-determination depends on the choice and circumstances of the population. for example, french people defined themselves within territorial limits, german people used their common history to identify themselves, bangladeshis were identified as the human rights violation victims and quebecers described themselves on the basis of common language. in the panorama of identity the approach of defining people can take varying forms.132 accordingly, it could be inferred that choice is important for the people to determine how they wish to define themselves. it is arguable given the choice the people of kashmir could define themselves both in the decolonisation and post-decolonisation period as “people” for the purposes of exercising the right to self-determination. 128 unesco, international meeting of experts on further study of the concept of the rights of peoples: final report and recommendations, unesco doc. shs89/conf.602/7 at para [7-8]. 129 res. 2396 (xxii) of december 2nd 1968 and 2672c (xxv) of december 8th 1970 respectively. 130 western sahara [1975] icj rep 33. 131 crawford rightly observed that “[f]rom the perspective of international law, the key feature of the phrase rights of peoples’ is not the term ‘rights’, but the term ‘peoples.’” see j crawford “the rights of peoples: ‘peoples’ or ‘governments?’” in j crawford (ed) the rights of peoples (oxford: clarendon press, 1988) p 55. 132 ilo convention 107, 1957; ilo convention 169, 72 ilo bulletin 59 (1989); the wgip draft declaration 1994 (un doc. e/cn.4/1995/2, e/cn.4/sub.2/1994/56), p.105; m lam at the edge of the state: indigenous people and self-determination (new york: transnational publishers, 2000) pp 42-49. the denning law journal 23 in the contemporary world the 19th century nationalist ideal of one people, one nation, one state no longer seems possible or desirable. in current times the objective description of common ethnic, cultural, religious or other characteristics has no significance alone; it must be coupled with the subjective chosen connection of the people to identify them. the meaning of the right to self-determination depends on the introspective perception of the notion of “people.” consequently, the concept of the people is no longer understood as being entirely tied to sovereignty, nor to formal citizenship. today, the right to self-determination of peoples has substantive and identitycentred content. the description of people has moved away from the debate over decolonisation and has broadened out to include various groups that possess common ties or share diversity. for the people of kashmir, kashmiriyat adds to their precise identity as people where diverse religion has no meaning within their culture. in the words of salman rushdie: “the words hindu and muslim had no place in their story . . . in the valley [kashmir] these words were merely descriptions, not divisions. the frontiers between the words, their hard edges, have grown smudged and blurred.”133 in consideration of factors that influence the political life of kashmiris and the discussion of people in this discourse, this critique defines the “people of kashmir” as: an organic whole population within the pre-1947 territorial borders of the state of jammu and kashmir that shares a distinct culture of kashmiriyat and is now divided between three countries (namely india, pakistan and china) and displaced in the aftermath of the war of 1947-48 and insurrection that followed since 1989, and whose population has suffered a political and economic breakdown; destruction of kashmiriyat and gross human rights violations under the unrepresentative governments. this definition allows the people of kashmir to exercise their right to selfdetermination. v. conclusion the right to self-determination is construed as controversial and is usually understood by the international community as a means of disintegrating the state rather than a means of inclusion. however, this right has been argued as a peremptory norm134 within international law and an “essential condition for 133 s rushdie shalimar the clown (new york: random house, 2005) p 57. 134 “a norm accepted and recognised by the international community of states as a whole from which no derogation is permitted”. see art 53 of the vienna convention the creation story of kashmiri people: the right to self-determination 24 the effective guarantee and observance of individual human rights.”135 tracing the progress of the definition of “people” it was observed that during the first world war people were mostly described in terms of territoriality. this tradition was kept during the decolonisation era and people were strictly described as a population within a distinct territorial unit. since the late 1960s it became increasingly anachronistic to restrict the meaning of people within the territorial borders and a view started to emerge that people may be identified with reference to linguistic, religious, cultural, ethnic identities and other affiliations. against these modern developments in the definition of “people” this discourse proposes that kashmiris could be identified as a people for the purposes of exercising the right to self-determination. it was demonstrated that kashmir was recognised as a unit of self-determination both by the british india and the un. the former provided kashmiris a chance to form an independent state and the latter through scrs addressed the scope of the right to self-determination by offering the people of kashmir an impartial plebiscite to determine their future. since 1947, kashmir was incorporated by india into its union in violation of scrs 91(1951) and 122(1957) and in doing so people were never consulted. from 1989 the people of iak were unable to find a democratic outlet for expressing their grievances against the political non-representation, corruption and alienation, which led to an insurgency to claim their un promised right to self-determination. this resulted in en masse clashes between the kashmiri people and government forces resulting in human right violations such as extrajudicial killings, disappearances, torture and fake encounters. today, the reservation of the right of self-determination by india has far-reaching implications especially in unabated human rights abuses in kashmir which is evident from the us state department report on india.136 the consecutive indian nominated governments in kashmir committed a series of errors that resulted in the isolation of the kashmiris. noorani, former advocate of supreme court of india, says: “india’s record shows lapses on five accounts rigged elections, failure to respect the state’s autonomy, corruption, discriminatory employment practices and failure to respect human rights.”137 on the law of treaties, adopted may 23rd 1969, came into force january 27th 1980 1155 unts 331. 135 general comment no. 12: the right to self-determination of people (article 1): 13/03/84march 13th 1984, para [1]. 136 above n 59. 137 above n 5. the denning law journal 25 on the other hand the kashmiris in pak are suffering massive economic human rights violations. in paraphrasing the right to self-determination ascription to the people of kashmir, their entitlement comes robust against the defence proffered by indian and pakistani governments to provide legal justification to deny this right both within international law and international practice. this is because the people of kashmir under unrepresentative governments are suffering from human rights violations, political instability, economic deprivation, marginalisation and alienation. internationally all of these factors are important pointers in the identification of units and groups as “people” for the purposes of self-determination. relying on this background, it became clear that a prospect is generated whereby ethnically united kashmiri people emerge as oppressed people, divided within the de facto borders and suffering human rights violations. this definition entirely synchronises with nonexhaustive modern definitions of “people” for the purposes of the right to selfdetermination. in order to exercise this right there is a vortex of world opinion behind the scrs for a plebiscite to offer kashmiri people the choice of how their future may unfold for them. abstract i. introduction ii. historical and cultural background to the kashmir crisis (a) roots of conflict (b) kashmiriyat the way of life iii. genesis, meaning & definition of “peoples” within international law and its applicability to kashmir (a) decolonisation definition: people within the territorial limits (b) non-representative government: people outside territorial limits (c) human rights violation link to self-determination (d) ethnic and minority groups & definition of 'peoples' iv. summary: some core principles v. conclusion immigration minister phil woolas has attacked lawyers and charities who work on behalf of asylum seekers by accusing them of u the denning law journal 153 the denning law journal vol 21 2009 pp 153-171 case commentary unhappy families and use of article 8 for failed asylum seekers chikwamba v secretary of state for the home department [2008] ukhl 40 charlotte walsh* introduction immigration minister phil woolas has attacked lawyers and charities that work on behalf of asylum seekers for undermining the law and “playing the system” by exploiting the appeals system.1 however, the case of chikwamba v secretary of state for the home department,2 handed down by the house of lords on june 25th 2008, confirms the need for an effective appeals process, without which there would be no safety net for thousands of asylum seekers. the case concerns the application of article 8 of the european convention of human rights (echr)3 and the government’s policy regarding failed asylum seekers. until recently, anyone who had remained in the uk unlawfully and had during their time in the uk formed a relationship and perhaps a family had no legal basis upon which to regularise their status in the uk. immigration law and rules required that they return to their country of origin and apply for entry clearance to return to the united kingdom under the appropriate immigration rules. the result of this was to separate families for lengthy periods, whilst the returnee was subjected to lengthy waits and had to satisfy strict immigration rules before applications were processed by british * senior lecturer in law, university of buckingham. i am indebted to kate jessop, solicitor, of brighton housing trust for her helpful and insightful comments on earlier drafts. 1 guardian interview november 18th 2008. 2 chikwamba v secretary of state for the home department [2008] ukhl 40. two other important immigration appeals cases were handed down on the same day: beoku-betts v secretary of state for the home department [2008] ukhl 39, and kb(kosovo) v secretary of state for the home department [2008] ukhl 41. 3 alias the convention for the protection of human rights and fundamental freedoms. case commentary 154 missions abroad. in addition, they were likely to incur enormous personal financial costs in terms of airfares, accommodation and application fees. this was the case even where article 8 of the echr had been invoked, unless the circumstances were “exceptional”. the secretary of state for the home department (sshd) successfully arguing that it was generally proportionate and fair to expect such people to follow this procedure lest they gain an unfair advantage in “queue jumping” those who had adhered to the law. previously, the courts have accepted this approach, finding that government policy does not make it disproportionate to have a person leave the uk to apply for proper entry clearance on article 8 grounds from abroad, as it is necessary in the legitimate interests of maintaining and enforcing immigration control. most notably in r (mahmood) v secretary of state for the home department where laws lj observed: “it is simply unfair that he [or she] should not have to wait in the queue like everyone else.”4 or in r v ekinci v secretary of state for the home department where as simon brown lj put it: “…it is entirely understandable that the secretary of state should require the appellant to return to germany so as to discourage others from circumventing the entry clearance system…”5 however, the recent enlightened decision of the house of lords in chikwamba (fc) v secretary of state for the home department6 seems to break this pattern. in this case a unanimous house of lords effectively overruled the previous controlling court of appeal decision in mahmood and, in a landmark and corrective decision, decided that an appeal against a refusal of asylum and leave to enter that is based on the right to family life protected by article 8 should not be dismissed routinely because government policy required the appellant to leave the country to apply for entry clearance from abroad. the facts sylvia chikwamba, a zimbabwean national, arrived in the uk seeking asylum on 22 april 2002. she brought with her a younger brother and a younger sister for whom she was responsible. circumstances meant that she had had to leave behind two children by a man from whom she was estranged, and they had been taken into the care of relatives prior to her fleeing zimbabwe; and yet she was still not yet 20 years old when she sought asylum 4 r (mahmood) v secretary of state for the home department [2001] wlr 840 at para 26. 5 r v ekinci v secretary of state for the home department [2003] ewca civ 765 at para 17. 6 above n 2. the denning law journal 155 in the uk as a port applicant. the dire situation in zimbabwe was well known but her claim for asylum was refused by the sshd less than two months after her arrival, and leave to enter was thus formally refused a few days later on june 8th 2002. the bitter pill was temporarily sugared, however, because at the same time the secretary of state announced that he had decided to suspend removal of failed asylum-seekers to zimbabwe until further notice, due to the well-publicised and deteriorating situation in that country. paragraph 14 of his letter stated: “it is accepted that conditions in zimbabwe have deteriorated in recent months and there were reports in december 2001 that some failed asylum seekers have faced difficulties on their return to zimbabwe. while there is no evidence that returnees were being systematically detained for questioning or subjected to ill treatment, the secretary of state was not satisfied, on the information then available, that unsuccessful asylum seekers could safely return to zimbabwe. on 15th january 2002 the secretary of state therefore decided to suspend removals of failed asylum seekers [and pending] the outcome of any appeal to the independent appellate authorities, be removed to zimbabwe as soon as the secretary of state is satisfied that it is safe to do so.”7 chikwamba was thus saved from removal for the moment though without legally enforceable status in the uk. and the question remained: why had her request for asylum been refused in the first place given the fact that political situation in zimbabwe was well known at the time? it would appear that it was principally an issue of credibility. chikwamba asserted that she had sought refuge in uk because she and her mother were members of the opposition mdc8 party and had been actively involved in opposing the mugabe zanu-pf9 regime through involvement with that party. it is apparent that the secretary of state simply did not believe her claimed membership of the mdc or her grounds for concern about the treatment she would receive in zimbabwe if she returned as a failed asylum seeker, and therefore refused her application; the asylum and immigration appeal tribunal who dismissed her appeal against the sshd’s decision taking the same view. 7 in the event, this general suspension was not lifted until 16th november 2004, some 2½ years after chikwamba was initially refused leave to enter. the suspension has since been restored and currently remains in force. 8 movement for democratic change (mdc) headed by morgan tsangirai. 9 zimbabwe african national union–patriotic front, formed in 1987 from the union of the zimbabwe african national union (zanu) and the zimbabwe african people’s union (zapu). case commentary 156 having been refused leave to enter and under (albeit delayed) threat of removal, chikwamba remained in the uk unlawfully as a failed asylum seeker who had exhausted her statutory appeal rights and, but for the sshd’s policy, would have been removed to zimbabwe. she remained in this limbo as of june 2002, subject to the threat of removal as soon as the secretary of state changed his policy.10 once the ban on deportation of failed asylum seekers to zimbabwe was lifted she could be removed to zimbabwe, with at that stage no prospect of return. around this time, chikwamba met an old school friend, mr magaya, who was also a refugee from zimbabwe but who had been granted asylum and indefinite leave to remain in the uk in june 2002. their friendship blossomed and they were married in september 2002. it has never been suggested throughout the proceedings that this was anything other than a genuine love match. in effect, chikwamba established a family life in the uk and the fact and duration of the suspension on removals to zimbabwe may have given her some reassurance that she could stay. on april 14th 2004 a daughter, bianca, was born. bianca’s status as a british citizen by virtue of her father’s indefinite leave to remain, coupled with her father’s refugee status, was to play a crucial role in the proceedings that followed that date. previous to her marriage to magaya, but during their relationship, and, presumably mindful that the secretary of state’s suspension may be coming to an end, chikwamba had submitted a further application for asylum and requested to remain on humanitarian grounds, asserting that her removal to zimbabwe would breach her article 8 echr right to respect for family life. by a decision letter of february 4th 2003, the secretary of state again refused to accept her application and added that he was not prepared to grant her exceptional leave to remain outside the immigration rules. she then appealed to an immigration adjudicator under s 65 of the 1999 act (since repealed and replaced by ss 82 and 84 of the 2002 act). the adjudicator dismissed her appeal against both applications in may 2003 on the somewhat dubious grounds11 that because the situation in zimbabwe (although “harsh and unpalatable”) was not sufficient to trigger a claim under article 3, it followed, the adjudicator stated, that she could not establish a claim under article 8. the iat then refused her leave to appeal against that decision. fortunately for chikwamba, she had tenacious lawyers and charities working on her behalf (so derided by immigration minister phil woolas).12 three months prior to the birth of her daughter she was eventually granted 10 above n 7. 11 the court of appeal later described it as “a plain error of law” [2005] ewca civ 1779, at para 12. 12 see above n 1. the denning law journal 157 permission to apply for judicial review of the iat’s refusal to grant her leave to appeal, and a consent order was made on the substantive judicial review hearing in june 2004. eventually, two and a half years after her initial asylum claim and seven months after the birth of her daughter she was finally granted leave to appeal to the iat in november 2004 just after the secretary of state had lifted the suspension and reinstated forced returns to zimbabwe. immigration appeal tribunal (iat)13 the iat heard the appeal on january 4th 2005. although it was conceded that the adjudicator had erred in his approach to article 8, the only question for the iat was that identified in article 8(2) itself: whether the proposed interference with her established private and family life in the uk was proportionate to the legitimate aim of immigration control. it had been established in r (razgar) v secretary of state for the home department [2004] 2 ac 368 that decisions taken pursuant to immigration control would be proportionate in all save a small minority of “exceptional cases”, identifiable only on a case by case basis. the test was to be taken from the iat’s decision in m(croatia) [2004] iar 211, to the effect that it could only allow an appeal under article 8 where the disproportion constituted by removal from the country between private rights and public interests was so great that no reasonable secretary of state could reasonably reach a contrary view. since then the court of appeal in huang v sshd14 has superseded m(croatia), holding that it is the adjudicator or appellate authority’s decision, not that of the secretary of state that counts, and the test is whether the case was “truly exceptional on its facts”. the iat concluded that to require chikwamba to return to her country of origin would be a proportionate interference with her, her husband’s and their baby daughter’s right to respect for family and private life guaranteed under article 8 of the echr and so dismissed her appeal. although this was, strictly speaking, adhering to government policy of the time, the decision was later heavily criticised by the house of lords as having erred on an interpretation of article 8 at this early stage.15 at the time the iat took the view that chikwamba’s separation from her husband would only be for a “relatively short period” and therefore would not cause any hardship to either party. it is submitted that, in effect, chikwamba lost her appeal because of the dogged application of government policy that a failed asylum seeker 13 now confusingly renamed the ait from april 2005. 14 [2005] 3 wlr 4891. the house of lords later allowed mrs huang’s appeal and held there was no additional requirement of exceptionality in article 8 cases [2007] ukhl 31. 15 see below n 33. case commentary 158 such as chikwamba should return to zimbabwe to apply for entry clearance (under the immigration rules) to return to the uk. the court of appeal in the court of appeal chikwamba argued first, that family life with her husband and daughter could not be constituted outside the uk in zimbabwe. secondly, that as the sshd refused to give her any assurance that her circumstances would comply with the specific and substantive requirements of the immigration rules so that she would be allowed to return,16 there was a real chance that her removal might cause the break up of her marriage and cause bianca to be separated from at least one of her parents. she might find herself permanently in zimbabwe with or without her daughter but certainly without her husband, whom even the iat accepted faced an insurmountable obstacle to his own return to zimbabwe.17 hence her claim that refusal to allow her to make the application for leave to remain from within the uk would interfere disproportionately with her article 8(2) rights to family life. the court of appeal18 agreed with the iat and dismissed her appeal in november 2005. they felt bound by the previous decision in mahmood19 and the court of appeal in huang (the court of appeal heard the case before huang’s appeal was allowed by the house of lords). to allow a presumption in favour of family unity “cuts across the clear rule of mahmood and huang, that it is only in exceptional cases that an adjudicator or the iat can allow article 8 considerations to prevail over the public interest in maintaining efficient and orderly immigration control”.20 chikwamba would have to return to zimbabwe and seek entry clearance from the entry clearance officer (eco) at the british embassy in harare just like everyone else. this is the nub of the issue. as a failed asylum seeker remaining unlawfully in the uk, chikwamba was unable to satisfy immigration procedures for entry clearance. unfortunately, the court of appeal, following mahmood, seems to have assumed that these procedures in themselves struck the desired degree of proportionality. in effect they regarded article 8 as supplementary to consideration of the immigration rules, whereas in reality article 8 is engaged as soon as family life is disrupted quite irrespective of the merits or otherwise of the immigration rules. 16 see below n 22 and 23. 17 he had been granted asylum and indefinite leave to remain in the uk in 2002 on this basis. 18 auld lj, jonathan parker and lloyd ljj; auld lj giving the single agreed judgment. 19 above n 8. 20 auld lj at para 47. the denning law journal 159 legislative background sylvia chikwamba based her appeal around the protection given to her family life by article 8 of the echr, which states: “article 8 – right to respect for private and family life: everyone has the right to respect for his private and family life, his home and his correspondence. there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” however, as has already been said, she was also subject to immigration procedures which were potentially seeking her removal. procedure for entry clearance and appeals are set out in the 1971 immigration act (the 1971 act) as amended by various subsequent acts and decisions, and now contained in the nationality, immigration & asylum act 2002 (the 2002 act). in addition, immigration rules are made under section 3(2) of the 1971 act. the immigration rules constitute a statement of the rules laid down by the secretary of state for the home department as to the practice to be followed in the administration of the immigration act 1971; that is, for regulating the entry into, and the stay in, the uk of persons required by the act to have leave to enter. section 3(2) of the 1971 act imposes on the secretary of state a duty “from time to time (and as soon as may be) to lay before parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of the act…” in turn the immigration rules are interpreted in detail by the immigration directive instructions issued by the immigration policy unit. these are government guidelines as to how to interpret and apply the immigration rules; these are occasionally amended so as to reflect the courts final interpretations of rules and policies. the parallel system for asylum appeals is to be found in the immigration and asylum act 1999 as amended by the 2002 act. in addition, asylum policy notices issued by the asylum policy unit ultimately become the basis of asylum policy instructions (apis) issued by the secretary of state. these are statements of policy as to how to interpret and apply the legislation. apis case commentary 160 (analogous to idis) cover the way in which applications are processed.21 apis attract more litigation and thus attempt to reflect the ever changing case law on this area. paragraph 28 of the immigration rules states that an applicant for entry clearance must be outside the uk at the time of the application. even though paragraph 2 states that entry clearance officers (ecos) must comply with the human rights act 1998, the problem for chikwamba was that, having been refused asylum and leave to enter the uk, she could obtain no assurance that she would satisfy some of the specific requirements for entry clearance in the immigration rule, forcing her to rely on article 8 instead. the relevant rules for entry as a spouse are contained in paragraph 281 and paragraph 352a of the immigration rules. paragraph 281(iv) provides general leave to enter as a spouse. it requires the applicant to show that she would be accommodated and maintained without recourse to public funds a requirement that chikwamba might not be able to meet. 22 on the other hand, paragraph 352a makes specific provision for leave to enter as the spouse of a refugee and so there is no analogous requirement to paragraph 281(iv), thus implicitly recognising the financial difficulties facing refugees.23 however, it does require that the marriage had taken place before the refugee fled the home country and was therefore also of no assistance to chikwamba. on her return to zimbabwe therefore, she would not have been able to satisfy the requirements of the immigration rules. she was thus outside the rules and would have no hope of return to the uk unless she could successfully appeal under section 65 of the immigration and asylum act 1999.24 the issue for the house of lords was therefore comparatively straightforward: 21 the relevant api in the instant case is article 8 of the echr, s 6: consideration of article 8 family life claims. 22 “paragraph 281(iv) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively.” (consolidated immigration rules). 23 “paragraph 352a(ii) the marriage or civil partnership did not take place after the person granted asylum left the country of his former habitual residence in order to seek asylum.” (statement of changes hc 395). 24 s 65 of the 1999 act (since superseded by ss 82 and 84 of the 2002 act) states: “(1) a person who alleges that an authority has, in taking any decision under the immigration act relating to that person’s entitlement to enter of remain in the united kingdom, acted in breach of his human rights may appeal to an adjudicator against that decision… (2) for the purposes of this part, an authority acts in breach of a person’s human rights if he acts, or fails to act, in relation to that other person in a way which is made unlawful by s 6(1) of the human tights act 1998.” the denning law journal 161 “in determining an appeal under section 65 of the immigration and asylum act 1999 (the 1999 act) (now sections 82 and 84 of the nationality, immigration and asylum act 2002 (2002 act)) against the secretary of state’s refusal of leave to remain on the ground that to remove the appellant would interfere disproportionately with his article 8 right to respect for his family life, when, if ever, is it appropriate to dismiss the appeal on the basis that the appellant should be required to leave the country and seek leave to enter from an entry clearance officer abroad?” the house of lords having exhausted all other legal remedies, chikwamba eventually won her appeal in the house of lords. in a unanimous decision, the house of lords25 allowed her appeal on the basis that her removal to zimbabwe would be in breach of the uk’s duties towards her under article 8 echr: she could make her application from within the uk without having to return to zimbabwe.26 lord brown rejected chikwamba’s “wider argument” that it would never be appropriate to dismiss a section 65 appeal brought on article 8 grounds on the basis that the appellant should leave the country and apply for entry clearance from abroad. it had been argued by chikwamba that the combined effect of section 65 of the 1999 act (being the general right of appeal on human rights grounds) and section 72(2) of the 1999 act, effectively did deny her this right to appeal.27 section 72(2)(a) states that an in-country appeal can only be denied when the secretary of state certifies that the claim is “manifestly unfounded”, and, she argued, such a certificate can only be given when long-term removal is permissible. his lordship held that this did not mean that the appellant was denied a right to an in–country appeal; rather it was to dispose of the appeal in a legitimate manner intended to promote immigration control.28 25 lords bingham of cornhill, hope of craighead, scott of foscote, baroness hale and lord brown of eaton-under-heywood. 26 the practical effect of which meant that she would be granted leave to remain in the uk on the basis of her family connections. 27 see above n 24 for s 65. s 72(2) of the 1999 act provides: “a person who has been, or is to be, sent to a member state or to a country designated under s 12(1)(b) is not, while he is in the united kingdom, entitled to appeal—(a) under s 65 if the secretary of state certifies that his allegation that a person acted in breach of his human rights is manifestly unfounded". 28above n 2, at para 34. case commentary 162 nevertheless, in regard to the “narrower argument”, only comparatively rarely (especially in family cases involving children) should an article 8 appeal be dismissed on the basis that it would be “proportionate and more appropriate” for the appellant to apply for leave to remain from abroad.29 in chikwamba’s case it was clear that the needs for effective immigration control did not require her to travel to zimbabwe to make her application. in coming to this conclusion, lord brown took into account the “harsh and unpalatable” conditions in zimbabwe; the fact that enforced returns of failed asylum-seekers had remained suspended for more than two years after her marriage; and the expense (both for the tax-payer and for herself) in travelling to and from zimbabwe.30 by implication mr magaya’s refugee status and bianca’s right to family life must also be taken into account; baroness hale reminding the house that in beoku-betts v sshd,31 the house had already decided that the effect on other family members with a right to respect for family life with the appellant must also be taken into account when considering an appeal under article 8.32 this conclusion was “obvious” to lord scott who added his “astonishment” that the case should have had to come this far.33 comment although lord brown disposed of the “wider argument” with comparative ease, he found the “narrower argument” as to when it would be appropriate and proportionate to dismiss such an appeal altogether more difficult. this was particularly so because he was anxious to avoid successive appeals under section 65. his lordship felt that the court of appeal had misjudged this point because they had assumed that any application would be dealt with by the eco solely in accordance with the immigration rules, but lord brown pointed out that this was an erroneous assumption. even if she could not bring her case strictly within the immigration rules, the eco would be bound to decide her article 8 claim in its own right because rule 2 if the immigration rules requires ecos (amongst others) to comply with the provisions of the human rights act 1998. thus, if the claim were rejected, she would have a further section 65 right of appeal, albeit this time from abroad, and with the possibility of successive appeals in the future.34 29 ibid, at para 44. 30 ibid, at para 46. 31 above n 1. 32 ibid, at para 8. 33 ibid, at para 3. 34 ibid, at para 25 and para 26. the denning law journal 163 in helping them reach their decision the house of lords reviewed the following: mahmood v sshd,35 ekinci v sshd,36 mukarkar v secretary of state for the home department,37sb(bangladesh) v secretary of state for the home department.38 the leading case of mahmood concerned a pakistani citizen who entered the uk illegally and claimed asylum. a week before his claim was refused and he was served with removal directions, he married a british citizen with whom he subsequently had two children. the court of appeal concluded that only in “wholly exceptional cases” should an applicant for leave to remain be able to escape the requirement under the rules for entry clearance to be obtained abroad by having his substantive application to remain determined in the uk. to decide otherwise, it was argued, would mean that someone outside the rules would be in a better position than someone within them and would effectively jump the queue. in addition, there would be no breach of article 8 if there were “no insurmountable obstacles” to the family living together abroad. although the hra was not yet in force, lord phillips mr (as he then was) had approached the issue as if it was and concluded on the approach to article 8: “…(2) article 8 does not impose on a state any general obligation to respect the choice of residence of a married couple. (3) removal or exclusion of one member from a state where other members of the family are lawfully resident will not necessarily infringe article 8 provided that there are no insurmountable obstacles to the family living together in the country of origin of the family member excluded, even where this involves a degree of hardship for some or all members of the family. (4) article 8 is likely to be violated by the expulsion of a member of a family that has been long established in a state if the circumstances are such that it is not reasonable to expect the other members of the family to follow that member expelled.”39 thus, in relation to the facts of mahmood, although accepting that it would be harsh if an applicant was denied access to his children for some time, he nevertheless did not consider that “the secretary of state’s insistence 35 above n 4. a case by which the court of appeal in the instant case had felt bound, and a case, their lordships pointed out, that was heard before the enactment of the hra 1998. 36 above n 5 37 [2006] ewca civ 1045. 38 [2007] ewc civ 28. 39 above n 4, at para 55. case commentary 164 that the applicant should comply with the same formal requirements as all other applicants seeking an entry visa to join spouses in this country is in conflict with article 8.” laws lj’s sums up the view of the court in regard to queue jumping: “firm immigration control requires consistency of treatment between one aspiring immigrant and another. if the established rule is to the effect—as it is—that a person seeking rights of residence here on grounds of marriage … must obtain an entry clearance in his country of origin, then a waiver of that requirement in the case of someone who has found his way here without an entry clearance and then seeks to remain on marriage grounds, having no other legitimate claim to enter, would in the absence of exceptional circumstances to justify the waiver, disrupt and undermine firm immigration control because it would be manifestly unfair to other would-be entrants who are content to take their place in the entry clearance queue in their country of origin.”40 in ekinci, the appellant was a turkish citizen with ‘an appalling immigration record’. he had entered the uk illegally and claimed asylum in the uk, untruthfully claiming that he had not previously sought asylum status elsewhere. in fact, he had previously lived in germany for some eight years, unsuccessfully claiming asylum there on two occasions. simon brown lj (as he then was) concluded that there was: “…nothing even arguably disproportionate in requiring this appellant to return to germany for the relatively short space of time that will elapse before he is then able to have his entry clearance application properly determined, if necessary outside the strict rules. that the secretary of state is not contemplating or intending any longer-term, let alone permanent, separation of the appellant from his family seems to me abundantly plain . . .”41 by contrast, in mukarkar, the appellant was a yemeni citizen who obtained entry clearance as a visitor by deception and then unsuccessfully sought leave to remain as a dependent relative of his many children settled here. the court of appeal distinguished ekinci on its facts and allowed his appeal to remain due to his need for “permanent and constant home help” and the unreasonableness that would be entailed in requiring his children to give up their jobs and return to the yemeni to look after him. 40 ibid, at para 23. 41 above n 5, at para 19. the denning law journal 165 lastly, in sb(bangladesh), the appellant was a bangladeshi woman who entered into an arranged polygamous marriage in bangladesh and many years later dishonestly obtained entry clearance as a visitor to the uk before then unsuccessfully seeking leave to remain as being financially dependent on a daughter settled here. the iat took the view that there was no reason why a properly structured application should be refused by an eco in bangladesh and refused her appeal. the court of appeal, however, indicated that the iat was not entitled to make its own assessment of her prospects of coming back to the uk and allowed her appeal. after all, it would seem paradoxical if the stronger an appellant’s perceived case for entry clearance under the immigration rules the more likely he or she is to be removed from the country in order to make it. lord brown also gave consideration to the then current asylum policy instruction on article 8: consideration of article 8 family life claims, which included, inter alia: “is the interference proportionate to the permissible aim? …in many cases, refusal or removal does not mean that the family is to be split up indefinitely. the . . . policy is that if there is a procedural requirement (under the immigration rules, extra-statutory policies or concessions) requiring a person to leave the uk and make an application for entry clearance from outside the uk, such a person should return home to make an entry clearance application from there. in such a case, any interference would only be considered temporary (and therefore more likely to be proportionate). a person who claims that he will not qualify for entry clearance under the rules is not in any better position than a person who does qualify under the rules—he is still expected to apply for entry clearance in the usual way, as the eco will consider article 8 claims in addition to applications under the rules. see ekinci... in addition, it may be possible for the family to accompany the claimant home while he makes his entry clearance application, in which case there will be no interference at all. for example, where a claimant is seeking to remain here on the basis of his marriage to a person settled in the uk, the policy is that they should return home to seek entry clearance to come here as a spouse under the relevant immigration rule. where the spouse can accompany the claimant home while he makes his application, there will be no interference. where this is not possible, the separation will only be temporary. the fact that the interference is only for a limited period of case commentary 166 time is a factor that is likely to weigh heavily in the assessment of proportionality.”(author’s emphasis) this was the policy that was applied to chikwamba, and lord brown remained unconvinced that the policy as a whole was indeed legitimate and proportionate. implicit in his judgment is that he finds the policy fundamentally objectionable because it deliberately causes potentially destructive inconvenience to people’s lives under the pretence of being even handed. while recognising that there may be some occasions where the necessity of maintaining and enforcing immigration control could be a legitimate aim, he doubted that this was indeed the real benefit conferred by such a policy: “is not the real rationale for such a policy perhaps the rather different one of deterring people from coming to this country in the first place without having obtained entry clearance and to do so by subjecting those who do come to the very substantial disruption of their lives involved in returning them abroad?”42 it is important to note, however, that lord brown does not think such an objective is always unreasonable. sometimes it will be necessary to enforce such a policy.43 factors which may militate in favour of endorsing the policy strictly and requiring the appellant to return home to obtain entry clearance include the following: (1) whether the appellant’s immigration record is ‘appalling’, such as in ekinci where “few claimants come to court with a track record of such prolonged evasion and mendacity…” (sedley lj). (2) whether the applicant has arrived in the uk illegally (for example, in the back of a lorry). if they have done so for a ‘bad reason’ for which entry clearance could readily have been sought (such as enrolling as a student) then requiring them to return home to seek entry clearance would be more legitimate than if they had entered illegally for a ‘good reason’, such as in order to advance a genuine asylum claim in good faith. (3) whether the eco abroad is better placed than the immigration authorities in the uk to investigate the claim, “perhaps as to the 42 above n 2, at para 41. 43 ibid, at para 42. the denning law journal 167 genuineness of a marriage or a relationship claimed between family members”.44 (4) whether the secretary of state has delayed in processing the application, in which case this would go in the applicant’s favour.45 (5) the prospective length and degree of the disruption to the established family life. this would be a key issue in article 8 claims. if the disruption is minimal then it is more likely to be legitimate to apply the policy than if it is lengthy. thus, it was legitimate and proportionate to remove mr ekinci (inter alia) because he was being required to travel no further than germany and to wait no longer than a month for a decision on his case.46 even so the case had been regarded as an “exceptional” one that turned on its facts.47 cases involving children will be looked on more favourably.48 his lordship was also unimpressed by the queue jumping argument which had been used by the sshd (supported by previous jurisprudence) as an excuse in favour of strict endorsement of the policy: “as we have seen, there is reference in some of the cases to jumping the queue, not having “to wait in the entry clearance queue like everyone else.” it is not suggested, of course, that others are thereby put back in the queue and thus delayed in obtaining entry clearance. on the contrary, the very fact that those within the policy do not apply for entry clearance shortens rather than lengthens that queue. what is suggested, however, is that it is unfair to steal a march on those in the entry clearance queue by gaining entry to the uk by other means and then taking the opportunity to marry someone settled here and remain on that basis.” 49 however, lord brown does not agree that others would feel a sense of unfairness unless those like chikwamba were required to make their claims to 44 provided that it did not lead to successive and unnecessary appeals with the appellant abroad and unable to give evidence in person. 45 later confirmed in eb (kosovo) [2008] ukhl 41, decided on the same day as chikwamba. 46 lord brown does not elaborate on why geographical distance from the uk might be of relevance. presumably because it is likely to involve the applicant in less expense and that they are more likely and it would be easier for his family based in the uk to visit him there? 47 above n 2, at para 29. 48 ibid, at para 44. 49 ibid, at para 40. case commentary 168 remain from abroad. only in those rare circumstances outlined above should the queue jumping principle be used to defeat a claim based on article 8, so “… only comparatively rarely, certainly in family cases involving children, should an article 8 appeal be dismissed on the basis that it would be proportionate and more appropriate for the appellant to apply for leave from abroad.”50 primarily this is because the likely disruption to family life, including any difficulties the appellant or other family members might have in returning to their country of origin, should be considered in all cases and not confined to exceptional cases as had been emphasised in mahmood (and had already been criticised by the house of lords in huang). this is particularly so in cases involving children and will also be relevant in considering the conditions of the country of origin. in chikwamba’s case it was accepted that the conditions in zimbabwe were “harsh and unpalatable” and mrs chikwamba might face the prospect of remaining there in such conditions for some months before obtaining entry clearance to enable her to resume her family life. there are other additional reasons why lord brown believed the application of the policy is unfair. the api policy statement, together with the decisions in mahmood and ekinci, asserts that a weak case under the immigration rules (being more likely to result in permanent removal) should not be used to strengthen an article 8 claim. to allow so, it claims, would undermine the interests of immigration control. but lord brown is puzzled by the inconsistencies in the secretary of state’s justification and application of the published policy, since the policy appears to apply routinely to all article 8 cases irrespective of whether the immigration rules apply or not.51 so, although his lordship agreed that it was entirely understandable that a person whose circumstances fell outside the rules should not be better off than one within them, the inconsistency of application of the policy could lead to a situation where it would be “bizarre if the weaker the appellant’s case under the rules the readier should the secretary of state and the appellate authorities be to excuse him the requirement to apply for entry clearance abroad.”52 50 ibid, at para 44. 51 “a person who claims that he will not qualify for entry clearance under the rules is not in any better position than a person who does qualify under the rules—he is still expected to apply for entry clearance in the usual way, as the eco will consider article 8 claims in addition to applications under the rules.” (secretary of state’s asylum policy instruction on article 8). 52 above n 2, at para 36. and see, for example, that the policy did not seem to have been prayed in aid by the sshd in beoku-betts who was not required to return home to obtain entry clearance despite the fact his case was outside the rules. neither did the secretary of state ever submit any explanation for why the policy was not applied the denning law journal 169 a further consideration is that the existing policy does not fit in with the desirability of the single, one stop in-country appeal that was anticipated by the 1999 act.53 there is a strong possibility that the policy will result in a second section 65 appeal if the eco in the home country, considering a person’s application following their return from the uk, should reject the article 8 claim for what would be a second time. in such a case the appellant would be abroad and so unable to give evidence in person, quite apart from it potentially leading to successive expensive and unnecessary appeals. it is better that the article 8 claim, together with any asylum and other human rights claims, be decided once and for all together at the initial stage. if it is well founded, leave should be granted. if not, it should be refused. thus, in most cases the uk court, and not the eco, should decide whether the applicant’s rights protected under article 8 was breached and if so whether the breach was proportionate to the demands of immigration control. this is an important aspect of the decision and what makes it so far reaching in that even where the claim for entry clearance is likely to fail under the immigration rules, it would be less appropriate to remove since this would mean lengthy appeal proceedings that in turn would mean lengthy separation of the family concerned. it follows that if the applicant cannot apply under the immigration rules at all, where family life has been established, then removal would almost certainly be disproportionate as it would result in permanent breach of family life and the consequent breach of article 8. lastly, lord brown was concerned with recent changes to the immigration rules introducing the prospect of substantial mandatory periods of exclusion following refusal of entry clearance or leave to enter, since they were bound to have a impact on future application of policy in article 8 claims although not, of course, affecting the instant case.54 his lordship is referring to the changes brought about by statement of changes in february 2008. following intense lobbying, however, the sshd agreed to amend these immigration rules and laid changes before parliament in june 2008 so that the mandatory bars to re-entry would not apply to applications to join family members in the uk.55 to the appellant mr kashmiri (the second appellant in huang) who did not qualify under a rule requiring entry clearance but who was asserting a family claim to remain here under article 8. 53 see shoulder note to s 77 of the 1999 act. 54 above n 2, at para 45. 55 see immigration rules hc 321 and 607 and now paragraph 320(7)(c) of the immigration rules. case commentary 170 conclusion the decision in chikwamba is a major endorsement of the right to respect for family life, overruling mahmood both on the exceptionality test and the no insurmountable obstacles test. it thus departs from a long established principle of policy that required people who were in the uk unlawfully to return abroad and join the queue for entry clearance before rejoining their families. it has already been applied in the lower appellate authorities56 and has had a major impact on the way in which the uk border agency must now consider human rights claims under article 8.57 the decision has also had an impact on consideration of article 8 cases in immigration law as a whole, due to its shift in the burden of proof. almost exclusively in immigration and asylum law, the burden establishing proportionality in in-country applications based on article 8 alone, now shifts to the home office rather than the appellant. following chikwamba, it is now the secretary of state who must show that in an article 8 case, especially those involving children, it is reasonable to require an applicant to go abroad and apply for entry clearance. in response, the secretary of state’s api on article 8 has had to be revised and their instructions to caseworkers rewritten to take account of the judgment in chikwamba.58 it will no longer be possible for stringent existing policies to be applied indiscriminately and hopefully the uk border agency will be forced to adopt a more humanitarian and less bureaucratic approach to those who seek to remain in the uk on the basis of maintaining their family life. having stated their previous position, the new instructions continue: 56 see, for example, forrester (r on the application of) v secretary of state for the home department [2008] ewhc 2307 (admin) where sullivan j applied chikwamba, concluding that it is one thing to say that one should have a fair and firm immigration policy, it is quite another to say that one should have an immigration policy which is utterly inflexible and rigid and pays not the slightest regard to the particular circumstances of the individual case. 57 two other house of lords decisions, handed down on the same day as chikwamba, have also contributed to a change in policy. in beoku-betts v sshd, the house extended consideration of family life to other family members remaining in the uk, with the result that the sshd and ait should now take into account the impact of removal not only on the appellant, but also on those who share his/her family life, bringing the approach of the courts in the uk in to line with approach taken in strasbourg; see uner v netherlands (gc) 18 oct 2006, maslow v austria (gc) 23 june 2008. in kb(kosovo) v sshd the house decided that delay by the sshd in considering the appellants case may also be relevant in article 8 cases. 58asylum policy instruction article 8, s 6: consideration of article 8 family life claims (re-branded december 2008). casework instruction article 8 (uk border agency, 7th august 2008). the denning law journal 171 “… the policy position has changed in light of the judgment in the case of chikwamba v the secretary of state for the home department (2008). the house of lords held that although the policy had a legitimate objective, the way in which it had been applied (i.e. in a fairly universal manner) was essentially wrong and that it is only comparatively rarely that it will be lawful to require someone with family here to return home and apply for entry clearance, particularly where children are involved. the house of lords emphasised that cases should, where possible, be considered fully at the earliest stage, i.e. in-country…the uk border agency, if minded to reject the claim, then has to show that the interference is proportionate, having regard to all the facts of the case.”59 nevertheless, the government is committed to limiting the numbers of asylum seekers and migrants to the uk and, on past record, they have not been deterred from exploiting decisions that are fact dependent in a way that was not intended in order to achieve this end. in this way they ensure, with apologies to tolstoy, that each unhappy family remains unhappy in its own way.60 all the same, the intention of the house of lords in chikwamba is clear. in considering claims based on article 8, particularly where there are children, all the circumstances of the appellant and his/her family must be taken into account. once disruption to family life is established due to removal, then article 8 is engaged so that the merits or otherwise of the case under the immigration rules becomes irrelevant. this simple truth was what led lord scott to express his “astonishment that the case should have come this far”. it was “obvious” to him that sylvia chikwamba and her family should be permitted to remain in this country. he likened the present system to one of kafka’s invention in its treatment of those who seek asylum: “…policies that involve people cannot be, and should not be allowed to become rigid inflexible rules. the bureaucracy of which kafka wrote cannot be allowed to take root in this country and the courts must see to it that it does not.”61 hopefully, the decision of the house of lords in chikwamba will help ensure that it does not. 59 ibid, p 2 post. 60 “all happy families resemble one another, each unhappy family is unhappy in its own way” tolstoy anna karenina (penguin classics, 1999) p 1. 61 above n 2, para 4. introduction the facts immigration appeal tribunal (iat) the court of appeal legislative background the house of lords comment conclusion anachronistic judicial approaches to disability benefits law .. dr. amir a. majid based on the research carried out on behalf of the secretary of state for social security in 1984 by the office of census and public surveys, the govei1llilent published a white paper, the way ahead benefits for disabled people. 1 the new regime gave disabled people under 65 additional entitlement to lower mobility and care components of the disability living allowance [d.l.a.] less serious mobility and care needs were recognised for which disabled persons could not claim any cash benefits before. the new legislation also granted a claimant the competence to self-assess unlike in the past whereby the disability-related benefits were assessable with reference to medical evidence. all three benefits (as well as the two levels of attendance allowance [a.a.]) are not means tested and do not attract any taxation. this article is concerned with the developments in the criteria of a. a. and d.l.a., as affected by recent case law? it will show that judges have not kept pace with modem changes. first, they have not modified their approaches, often to the serious detriment of disabled claimants, in line with the substantially more generous provision of disability benefits. secondly, they have failed to faithfully implement the will of the parliament, mirroring the improvement in the attitude of society towards disabled people, to enable them to playa full role in society and give them the means to lead an independent life in the community. the article will highlight some of the restrictive judicial • barrister (cloisters chambers), reader in law (london guildhall university). the author expresses his warm thanks to his senior friend, professor anthony bradley, for perusing the manuscript and giving generously the benefit of his wisdom to improve this article. lather than the attendance allowance (a.a.) for people over 65, disability working allowance.(d.w.a.) and disability living allowance (d.l.a.) were introduced for persons under 65 but normally over 5. the white paper hailed the introduction of these benefits to be "a fundamental change" in the system; see the way ahead benefits for disabled people cm.917, (h.m.s.o., 1990). 2 particularly cockburn v. chief adjudication officer and another; and secretary of state for social security v. fairey, also known as halliday, a single judgment for the two cases was issued on 21st may, 1997 [1997] 3 all e.r. 844. (also reported: [1997] 1 w.l.r. 799.) hereinafter referred to as "the cockburn case" and "the fairey case" respectively. 93 the denning law journal interpretations given to various statutory phrases which, it is argued, were not inexorable in light of the changes in the current animus legis. the d.l.a. is divided into two main components, "mobility" and "care." the former component (bifurcated into higher and lower levels) deals with transport and mobility problems and is not the subject of discussion in this article. the latter component deals with the "care needs" of a disabled person and, depending on the severity of needs, is divisible into three levels, "highest," "middle" and "lowest." the major differences are that a.a. is only available at the "highest" and "middle" levels and the "lowest" level is not available to claimants who were not receiving it and claimed the benefit when they were over 65; further the qualifying period for d.l.a. is three months and this period for the a.a. is six months. other than these differences, the criteria and procedures for the grant of a. a. are mutatis mutandis similar to those applicable to the d.l.a. as in section 64 in respect of the a.a., the criteria for entitlement to d.l.a. are governed by section 72 of the social security (contribution and benefits) act 1992.3 the fairey case, decided on 21 st may, 1997, focuses on the care component of the d.l.a. because the claimant was under 65. since mrs. cockburn was a claimant over 65, her case decided on the same day related to a.a .. bearing in mind these differences, in the discussion below the arguments concerning "d.l.a." cover both benefits. as it was reiterated in the house of lords, in the fairey case, at the earlier stages of litigation the department of social security [d.s.s.] asserted that "social activities" such as going to cinema or theatre, or travelling to and from and visiting museums etc. were not "essential." the department submitted that it could not be said that attention in respect of these needs was "reasonably required.'>'! this view was rejected by mr. commissioner sanders who was persuaded otherwise and, accordingly, he allowed miss fairey's appeal on 14th october, 1994. he said: 3 for further information viz the applicable criteria and procedures of grant, see j.paterson, disability rights handbook (disability alliance, 25th ed., 2000-200 i) at pp.124-148; c.george et ai, welfare benefits handbook (c.p.a.g., 2nd ed., 2000-2001) at pp.157-196; ogus, barendt & wikeley's the law of social security (butterworths, 4th ed., 1995); for some basic information and useful references of detailed sources see mike hurdiss, "the who, when and how of dla" disability now 18 (scope, august 2000). 4 the house of lords, as the courts below, was invited to accept the department's view that miss fairey had sufficient social life because she could communicate with her mother who knew sign language and with some other individuals who could communicate in that manner. any further desire for socialisation was not "reasonably" required. 94 disability benefits law "i take the view following, as it seems to me, the approach in the last few cases to which i have referred that it is right to include in the aggregate of attention that is reasonably required such attention as may enable the claimant to carry out a reasonable level of social activity. deriving strength from the decision of the house of lords in the mallinson case, the majority of the court of appeal (glidewell lj and swinton thomas lj) definitively dismissed the appeal and expr:essly approved the test of the commissioner for 'reasonably required attention. ",5 salient points of the fairey case in the past, over-technical literal construction of statutory wording of relevant provisions has led to absurd results. rather refreshingly, lord slynn takes a purposive and justice-oriented approach and thereby avoids falling into the pit of "cold logic." in the house of lords, lord slynn, who delivered the leading opinion, observes: "it may well be that, on a strict analysis and in logic, attention cannot be in connection with a bodily function which does not function and never has functioned since birth, but it seems to me impossible to attribute to parliament the intention to exclude from the section attention given to a person whose bodily functions (sight or hearing) are wholly impaired and to limit it to someone whose bodily functions are partially impaired. if an over-fine analysis of each of the words in the section leads to such an absurd result it is necessary, as lord bridge of harwich stressed in woodling,6 to look at the language of the section as a whole to find the intention."? lord slynn enunciated that the correct test in the d.l.a. cases was to take into account "attention" which is reasonably required "to enable the severely disabled person as far as reasonably possible to live a normallife.,,8 5 in fact this test was clearly established in r. v. secretary of state for social services ex parte connolly [1986]1 w.l.r. 421. 6 in re woodling [1984] 1 w.l.r. 348, at 352; [1984] 1 all e.r. 593 at 596. 7 supra n.2 at 859f-g. 8 ibid at 860e. 95 the denning law journal "he is not to be confined to doing only the things which totally deaf or blind people can do and provided with only such attention as keeps him alive in such a community.,,9 lord slynn stated that: "the yardstick of a 'normal life ' is important; it is a better approach than adopting the test as to whether something is 'essential' or 'desirable.' social life in the sense of mixing with others, taking part in activities with others, undertaking recreation and cultural activities can be part of normal life. it is not in any way unr~asonable that the severely disabled person should wish to be involved in them despite his disability.,,10 salient points of the cockburn case mrs. cockburn's appeal was dismissed by a majority of four to one (lord slynn dissenting). in his leading judgment in respect of the cockburn case, lord hope of craighead endorsed mr. commissioner monroe's definition of "bodily functions" in decision cn60/7 4, as approved by lord bridge of harwich in the woodling case; also emphatically adopted by lord justice dunn in packer's case. i i namely those functions which "the fit man normally performs for himself." are "washing," "cleaning," "sweeping" or "dusting" not the functions which a fit man normally performs for himself? perpetuating the myth introduced by packer's case in ] 981, lord bridge inserts the test of "intimacy," "physical contact" and "personal attendance" as being essential elements in giving "attention" for it to merit recognition for the award ofd.l.a or aa12 without realising that it does injustice to many disabled claimants living alone, lord hope takes this statutory construction as given as ifthis interpretation is something "compelled" by the language ofthe 1992 act or its predecessor, the social security act 1975. it is most respectfully submitted that this restrictive interpretation should be abandoned as a yardstick 9 ibid. 10 ibid at 860f-g. professor. wikeley, referring to the department's attempt to confine the need for attention to "essential," as opposed to "desirable" communication, said that it "seems at best outdated and at worst grossly insensitive to the position of those with hearing loss." see, infra n.14 at p.556. 11 r. v. national insurance commissioners ex parte secretary of state for social services [1981) 1 w.l.r. 1017, generally known as packer's case. for discussion on this case, see ogus, barendt & wikeley, supra n.3 at pp.200-202. 12 supra n.6. 96 disability benefits law because it leads to ignoring some proper incidences requiring "attention" and culminates in neglect of some genuine "care needs" of a claimant provision of relief for "care needs," of course, is the principal object of the act in question. in his opinion in the cockburn case lord hope of craighead finds that mrs. cockburn's care needs are not sufficient because they do not "satisfy the terms of the statute in the light of the policy which lord bridge of harwich has described.,,!3 lord bridge (the author stresses the fact that this was in 1984) had detailed the "policy" as follows: "first it is clear that the policy underlying section 35 of the act stops short of providing attendance allowance for all who are incapable of looking after themselves without some outside help even if that help is frequently required .... again it seems a reasonable inference that the policy of the enactment was to provide a financial incentive to encourage families or friends to undertake the difficult and sometimes distasteful task of caring within the home for those who are so severely disabled that they must otherwise become a charge on some public institution.,,14 lord hope does not appear to have been acquainted with the modem reality (and a mammoth reality) that there is a much more illuminated and healthy approach by the government towards normalising the lives of disabled people. he might have been misled viz this approach by lord justice hobhouse's statement in the court of appeal in the fairey case. after setting out the above dictum of lord bridge of 1984, lord justice hobhouse opines: "i consider that the same overall policy guides the relevant provision in the 1992 act.,,15 when lord bridge was describing the policy of the statute in 1984, the animus legis behind the 1975 act (which his lordship was considering) had not accorded with the proper needs and aspirations of disabled people. moreover, his lordship does not give any impression that he is expounding the policy in a balanced way. the author is inspired to make this comment by his lordship's view of the policy of the act that it excludes disabled claimants even if they require help "frequently." this kind of disabled claimant is, indeed, expressly j3 supra n.2 at 869f. 14 supra n.6 at 352d-e. a disability benefit (attendance allowance) was first introduced by s.4(2) of national insurance (old persons and widows pensions and attendance allowance) act 1970. for historical evolution and enhancement in the disability benefits, it is argued, reflecting the more enlightened attitudes of society towards disabled people, see n.wikeley, "cases: benefits, bodily functions and living with disability" (1998) 61 m.l.r. 551 at pp-551-552. fairey case, court of appeal judgment transcript, p. 23b 97 the denning law journal and specifically envisaged by the act to be covered when one notes that section 35(a)(i) of the social security act 1975, the policy of which lord bridge was considering, states that a person will be entitled to the benefit in question if he/she required "frequent attention throughout the day in connection with his bodily functions." in consequence of a sustained campaign of disabled activists, the 1992 legislation had imported a progressive approach in the benefits system. that the description of the "policy" by lord bridge is erroneous is also clear from the fact that only a disabled claimant is the lawful recipient of the d .l.a. and "families or friends" are not even entitled to know whether a disabled person is receiving any d .l.a.. it is submitted that the introduction of the "lowest" level of d .l.a. care component, based on the "cooking test" for people over sixteen was not entirely a de novo concept but a conscious recognition by parliament, highlighted by disability campaigners, that the courts in the cases of packer (1981) and woodling (1984) had taken an over-rigid approach in excluding "cooking." further, the benefits regime was expanded by providing for mobility needs of scores of thousands more disabled people by the introduction of the lower component of the mobility element ofd.l.a.. the landmark of distinct positive change in the social policy aimed at bettering the lives of disabled people was february 1991 when the third reading of the modem legislation was taking place in parliament. sadly, this reality does not feature in the cases of mallinson and cockburn and fairey. the judges remain fidel to the dicta of 1981 in packer's case and of 1984 in the woodling case, without noticing the outmodedness of some aspects of these cases. the attitudes of the society and government have been going through a metamorphosis since the social security act 1975, an act which was probably a progressive measure at that time. taking the example of february 1991 when the amplification of the provision for disabled claimants was being considered, the government, according to the minister for disabled people, saw this to be "an opportunity to enable disabled people to enjoy a quality of life that has been denied to their predecessors and many of them. ,,16 the minister further said that: 16 house of commons, official reports, parliamentary debates, hansard, 7ili february, 1991, vol. 185, issue 51, col. 440 (hereinafter the hansard). 98 disability benefits law "the bill will introduce two important benefits. the disability living allowance will combine and extend the impact of attendance and mobility allowances in an effective way."l? repeating in the third reading what he had said earlier at the committee stage, mr. scott said in february, 1991: "the pattern of benefits that we have introduced is but a part of what all honourable members concerned about the subject want a series of measures that improve the lives of disabled people.,,18 he highlighted the government's desire to improve "accessibility to leisure facilities and to the other matters that the rest of us are able, for the time being at least, to take for granted.,,19 conundries of statutory phrases the trap into which the cold logic of intellect dropped the judiciary is the construction of the quaint phrases, the worst of them being the statutory terms "bodily functions" and "attention." in the woodling case, for instance, lord bridge opined that the phrase "bodily functions" is "a restricted and precise one, narrower than for example "bodily needs. ,,20 his lordship then proceeded to use this formulation to justify exclusion of cooking from "bodily functions." a purposive glance at the provision could readily lead to the inclusion of "cooking" in the care needs of a disabled person, e.g. a claimant has no hands (clearly an impairment depriving him of the ability to accomplish several bodily functions) and included in his care needs is that he cannot "cook." is it so unreasonable a "care need" that it should not be taken into account in ascertaining his statutory entitlement to firiancial help from the state? l 7 ibid at col. 493. the remarkable fact is that this kind of progressive measures were envisaged by the pioneer legislators of the award of disability benefits. for instance, the secretary of state, mr. david ennals, when addressing the committee said that not for a moment did he anticipate that the provisions which he expected the 1970 bill to contain "to remain unchanged for many years to come. that would represent a failure by the government and society to represent the needs that we are starting to meet in this clause." standing committee f, col. 548, loth march, 1970. 18 supra n.16 at col. 493. 19 ibid. 20 supra n.6. 99 the denning law journal to uncover the roots of the current anachronistic judicial approaches towards disability benefits, re-visiting the circumstances of packer's case may be very revealing. in packer's case, upholding the commissioner's decision, mr. justice forbes, had taken an even more progressive approach in the high court than the commissioner against whose decision the secretary of state was appealing. mr. justice forbes said: "cooking is an activity which consists of the application of a number of bodily functions to a particular task and if a disabled person cannot perform the requisite bodily functions himself then someone who performs them on his. behalf is rendering attention in connection with those bodily functions and, accordingly, the delegated medical practitioner is wrong to exclude from his consideration the fact that the disabled person needed to be cooked for.,,21 indeed, even in 1981 (certainly and manifestly in the subsequent years) those working in the social security field, many commissioners and advisers to the . claimants, had no doubt that the necessity that a disabled person who could not cook for himself needed "to be cooked for" to meet the most important function of all "bodily functions" i.e. "eating" could rationally count towards the "attention" required for entitlement to an attendance allowance. this reasoning had produced the cumulative weight on the government to start drafting in 1990, pass in 1991 and enforce new legislation introducing, inter alia, the lowest care component ofd.l.a. specifically granting benefit to those who could not cook for themselves. the author finds the conclusion of the court of appeal in packer 's case that "cooking" was too remote from the "bodily function" of "eating" incomprehensible when he sees that the court of appeal had before it (and records it in its judgment) the self-evidently commendable reasoning of three national insurance commissioners that cooking was "attention" and that the: "personal service of an active kind involving cooking is immediately and not remotely connected with the bodily function of eating. indeed, preparing food for an invalid cannot 21 supra n.11 at 1020. 100 disability benefits law reasonably be regarded as having any purpose other than satisfying the bodily function of eating.,,22 in the cockburn case, lord goff of chieveley stated: "obviously, the requirement of presence has not to be applied too strictly ... but it marks a characteristic of the attention which is required and taking away washing to be laundered elsewhere cannot, in my opinion, sensibly be regarded as constituting part of such attention. but, though performance of the relevant activity away from the applicant excludes it from the ambit of the section, the mere fact that it is performed in the applicant's presence is not of itself a qualification. ,,23 22 ibid at 1024. out of the four decisions of four different commissioners before the court of appeal, only one of them, commissioner monroe, had taken an excessively restrictive approach (because he appears to keep the meaning of "bodily functions" within the narrow penumbra of meanings such as eliminating waste products). to make conspicuous the anomalous choice of reasoning by the packer court of appeal, one of the other three commissioners, sir rawden temple q.c. 's analysis is worth repeating: "the logical result of confining attention to actual physical assistance given to a disabled person is, for example, that he would be receiving attention of the required character whilst being bathed but not whilst the bath was being prepared for him, and be receiving attention when his food was being cut up to enable him to eat it, but not whilst it was being prepared to enable it to become edible. such fine distinctions wholly unintelligible, i would suppose, to those for whose benefit the legislation exists and which fragment the course of personal services given to the severely disabled in regard to their bodily functions, do not attract me. in my opinion 'attention " in connection with bodily functions' should be broadly interpreted, so as to include not only any physical assistance ultimately given to enable a disabled person to eat (or drink) but also to include the necessary steps taken by the attendant to prepare the food or drink which is to be consumed with or without later physical assistance to do so. for myself, i do not doubt that a disabled person waiting for food or drink to be prepared, if asked whether he was being attended to, or receiving attention, would answer that he was, and such an answer to my mind would accord both with commonsense and with the fact. i do not believe that the parliament intended that the disabled person, waiting whilst an attendant prepared a meal or special diet which he was unable to do for himself because of his disability, should be held not to be receiving attention in connection with his bodily function." ibid; also decision ca2/79, 2ih august, 1979. 23 supra n.2 at 847d-e. 101 the denning law journal in his dissenting opinion, lord slynn regarded it to be an incorrect approach to identify a matter to be a "household chore" (the view which was taken by lord denning and lord justice dunn in packer's case and lady justice butlersloss adopted it in the cockburn case in the court of appeal) and then exclude it from the "attention" recognised by the 1992 act. instead, "it must specifically be asked whether the particular washing is required in connection with bodily functions.,,24 referring to a commissioner's decision, ra1i91, his lordship indicated circumstances in which "washing" may be linked to the failure of a "bodily function" thus constituting "attention" falling within the ambit of the act. lord slynn discouraged the over-rigid approach in construing the statutory expressions in the field of social security law. he said, "i do not think that it helps to adopt particular categories which cannot ever be capable of constituting attention.,,25 accepting that attention "must have the active, close, caring personal qualities," lord slynn does not think that "attention necessarily involves physical contact." his lordship rejected the view that there has always to be personal attendance on the claimant to constitute "attention" and said that: "it would be quite absurd to say that to prepare a sponge in a basin in the bedroom qualifies but that the same prepared in a bathroom on the same or on a different floor does not. ,,26 lord mustill's weightiest reason for mrs. cockburn's appeal appears to be his lordship's insistence on the condition that for meriting inclusion in the attention required by the act the helper must be "in attendance on the applicant" and be present with him27 to justify dismissal of mrs. cockburn's appeal, lord mustill says, "i found it hard to see how one visit a week could be 'frequent attendance throughout the day. ",28 his lordship, however, recognises that if a person comes into the home to strip the bed and provide other help to the disabled person and then stays in the home "to rinse the linen and hang it up to dry" that falls within the section.29 most regrettably, his lordship was not made aware of the fact that since 1992 when the new legislation was brought into force, if not before, the help (attention or supervision) to be taken into account by the decision makers is the 24 ibid at 863b. 25 ibid at 863j-864a. 26 ibid at 864b-d. 27 ibid at 8s0d. 28 ibid at 849b. 29 ibid at 849j. 102 disability benefits law help the disabled person reasonably "needs" and not the help he "actually receives." thus, there will be many occasions when a claimant will need help but there will be nobody to help him. at times, a helper can visit the claimant less frequently than he would need. if benefits are allocated with reference to what actual help is being received by a claimant, then resourceful disabled persons capable of arranging help for their genuine but minor needs can obtain benefits and disabled persons with more and major care needs may be neglected because they were not receiving help frequently. it will be the most anomalous situation whereby the system fails to help those who are waiting for a benefit to come into their hands to buy in care services for their serious needs. it may here be indicated that both judges and advocates presenting cases before them, in some instances, have displayed imperfect command of the overgrown minutiae ridden rules of social security law. in packer's case, for example, lord denning, adopting lord justice o'connor's view in that case, said: "it would appear that the daughter gave up her work in order to be at home to look after her mother. she would therefore be entitled to receive an invalid care allowance under s.37 of the act, payable to her and not to her' mother. in that way she will i hope be well treated and everything will be fair all around. ,,30 lord denning was incorrect in making the preceding statement. the courts in england depend on advocates to inform them of intricate details of a specific field oflaw. here, the advocates dismally failed in their duty. the correct law was adumbrated before the court three years afterwards in the woodling case, and the house of lords emphatically indicated that the court of appeal in packer's case was wrong in saying that the daughter was so entitled. one may even call it a blunder because by refusing the grant of attendance allowance to mrs. packer the court of appeal had in fact expunged the very requirement which was the condition precedent to obtaining an invalid care allowance by anybody looking after her. totally indistinct, rather than transparently guiding, approaches of various judges are visible in a number of cases. the most glaring example of this can be seen by surveying the events until the moment the mallinson appeal reached the house of lords. the delegated medical practitioner (the original decision 30 supra n.li at i022. 103 the denning law journal maker), the commissioner and the three lord justices of appeal managed to produce a concoction of about five different strands of reasoning. 31 this author clearly believes that, without any clear statutory strictures, some of the restrictions imposed by the courts (to the detriment of claimants who tend to be mostly poor) are unjustified. "washing," "cleaning," "sweeping" and "dusting," it is most respectfully submitted, are wrongly excluded from the "care needs." the decision in this particular respect in packer's case is an anachronism. as the previous courts, lady justice butler-sloss in the cockburn case in the court of appeal took these exclusions to be justified ex cathedra. 32 as already discussed, the court of appeal in packer's case, rejecting (it is most respectfully submitted) the fair and commonsensical approaches of three commissioners, adopted the overly strict approach of commissioner, mr. 1. g. monroe, in his decision ca60/74 of 23rd october 1974. this was an earlier decision than the one given by chief commissioner, sir rawden temple q.c., on 27th august 1979, (decision ca2/79, discussed above and available for consideration by the packer court) sir rawden's decision advocated a fair approach to include cooking in the care needs. in the woodling case, lord bridge, endorsing this facet of packer's case, made clear that the section should be construed in the "restrictive sense" rather than the "broad sense" and, consolidating this unfair point, his lordship added that "the restricted construction is the correct one.,,33 in the fairey case in the court of appeal, lord justice hobhouse found himself totally convinced by the strict approach taken by the court of appeal in packer's case and the house of lords in the woodling case. he, in fact, said that lord woolf could not take the approach he took in the mallinson .case in 1994 because he was bound by lord bridge's dictum in the woodling case of 1984 an over-zealous application of the doctrine of precedent. 34 what is 31 "attendance allowance, disability living allowance and blindness" scolagj. 152-154 (october/november 1994). if one looks at the cockburn and fairey judgments, one confronts the glaring incongruity that miss fairey (a young, healthy and employed woman with hearing impairment) is found to be entitled to the d.l.a. but a 71-year-old woman with severe arthritis and incontinence did not merit the benefit "in a sense the help required by the claimant in cockburn was more obviously within the policy underlying the benefits." robertson and thomas, "social security: recent developments" legal action 16 at 21 (august 1997) commissioner howell q.c. has drawn the attention of parliament to this controversy because he is doubtful "whether the present manifest imbalances between claimants with different form of disability are now capable of remedy by judicial interpretation." cdlali1652/95, para. 12. 32 supra n.2 at 867c. 33 supra n.6. 34 supra n.2 at 858e (where lord justice hobhouse is quoted). 104 disability benefits law substantively objectionable about lord justice hobhouse' s dissenting judgment in the fairey case is that his lordship appears to be oblivious of the substantial and, one may be justified in saying, radical changes since 1984 in social attitudes and parliamentary policy, leading to further enhanced provision being made for disabled persons. in the cockburn case, lady justice butler-sloss said: "a line has to be drawn somewhere and it is clearly drawn in packer's case (r. v. national insurance commissioners ex p. secretary of state for social services [1981] 1 w.l.r. 1017) between cooking, shopping and, i would add, housework such as dusting, cleaning, sweeping and laundry on the one hand and, on the other, close personal attention such as helping in and out of bed, eating, drinking, bathing, washing hair, going to the lavatory. the latter, non-exhaustive list of duties, following the line of authority established over fifteen years, do fall within attention ... in connection with bodily functions. the former type of duties do not. to find otherwise would be not to recognise the restricted and precise meaning of the phrase 'bodily functions' nor the high degree of physical intimacy between the giver and receiver of attention rejuired by lord bridge in in re woodling [1984] 1 w.l.r. 348." 5 in packer's case lord justice dunn after saying that "[a] line must be drawn somewhere" thought that "the work in the kitchen was outside the ambit of the statutory provision.,,36 this interpretation was not compelled by the statute or, it is respectfully submitted, dictated by the policy of the statute. the expression "bodily functions" is not defined in the statute. a novice to the field of social security law may be forgiven for assuming that it means that the functions concerned were only of an intimate personal nature taking in food or liquid or excreting waste products of the body. however, it covers much more than that. in packer's case lord denning, m.r., stated: "bodily functions include breathing, hearing, seeing, eating, drinking, walking, sitting, sleeping, getting in or out of bed, dressing, undressing, eliminating waste products and the like, all 35 case note iii, 1.01 s.s. law 4 at pp.163-164 (1996). 36 supra n.ll at 1027. 105 the denning law journal of which an ordinary person, who is not suffering from any disability, does for himself. ,,37 "seeing" is clearly recognised as a "bodily function" in this long list of examples. both courts and, consequently, those officials who are responsible for administering the benefits in the d.s.s. failed to give effect to this dictum in dealing with visually impaired claimants. only in april 1994, the mallinson judgment of the house of lords made it clear that "seeing" was a bodily function. even the mallinson judgment in favour of visually impaired applicants was in danger offalling into disuse ifthe fairey appeal had not reached the house of lords. in the court of appeal in the fairey case, lord justice hobhouse stated that he understood that "seeing" was not recognised by the majority of the house of lords to be a "bodily function" in the mallinson case. this view was forcefully expressed by his lordship because he wished to give effect to "the narrowness of the bodily functions,,3 and, if it had prevailed, it would have possibly rolled back the law to where it was before the mallinson case. his lordship's dissenting judgment could have been followed by a future court of appeal and, consequently, tens of thousands of visually impaired individuals could have been deprived of financial benefits which their needs amply justify. most fortunately for visually impaired claimants, the fairey case reached the house of lords and lord slynn rejected lord justice hobhouse's view. according to lord slynn's analysis (not derogated from by any of the other law lords) lord woolf s opinion in the mallinson case that "seeing" was a "bodily function" was concurred in by two other law lords and was, therefore, a majority view in that case. it may be reiterated that, since all other law lords approved lord slynn's analysis of the mallinson judgment, the fairey and cockburn decision itself is a unanimous authority that "seeing" is a "bodily function. " lord justice hobhouse made an extra-nice epistemological distinction between "disability" and "bodily function" and emphasised that the disability has to be in connection with the claimant's bodily functions. he says that the statutory words were not "in connection with her disability. ,,39 this distinction is unmeritorious since it does not accord to the legislative purpose and ignores care needs of scores of thousands of disabled claimants for whom parliament has devised the system of these benefits. 37 ibid at 1022b-c. 38 supra n.15 at 57. 39 supra n.2 at 857h-i. 106 disability benefits law as compared with the total neglect of the dictum relating to "seeing" in packer's case, (1981), for thirteen years until the mallinson case, the exclusionary dictum viz the "domestic chores" such as cooking, washing, shopping and ironing (reducing or obviating entitlement) was duly and promptly seized upon not only by the administrators of the system but also by the judges in subsequent cases.40 no judge in recent years, other than lord slynn in the fairey and cockburn cases, felt motivated to indicate that this kind of indiscriminate neglect of care needs is not "compelled by the statute" and there may be cases where such needs can be taken into account validly. the judges have expressed great sympathy with the unsuccessful claimants and have regretted the adverse effects of their negative decisions on their lives. it gives the impression that they are not fully in touch with the changing culture wherein more and more support is made available to disabled people. at times they have mentioned that they were precluded from being generous because they had to be fair to the public purse. lord mustill took up this theme in the fairey and cockburn cases thus: "the courts must i believe bear in mind that the entire shape of social services legislation represents a strategy about the deployment of limited funds and that to overstrain one element of legislation in order to relieve someone whose case attracts sympathy will only divert resources from someone else whose case falls squarely within the intention of the scheme.,041 the judges appear to be unaware of the plight of disabled persons in the united kingdom. many of them have to make a choice between keeping warm or buying sufficient food, in addition to facing the cost of travelling etc. between 1979 and february 1991, whilst average earnings had arisen by 20 per cent, the benefits had increased only by 1per cent.42 with the maximum positive impact 40 except for one or two judges, this statement applies to virtually all judges involved in the cases of packer (1981), in re woodling (1984), mallinson (1984, house of lords; also the court of appeal stage), cockburn (1995, court of appeal), fairey (1995, court of appeal) and the law lords other than lord slynn in the combined appeal of cockburn and fairey (1997). this author believes that, perhaps consumed by elitist attitudes, many judges have been conspicuously reluctant to delve in the intricacies of social security law properly where an engaging approach could lead to producing a fair enhancement in the benefits sought; see ogus, barendt & wikeley supra n.3 at p.687 & wikeley, supra n.14 at p.s57. 41 supra n.2 at 850e. 42 hansard 7th february, 1991 co1.449. the current level of u.k. benefits is not sufficient to meet the care needs of a disabled person: see horton and berthoud, the attendance allowance and the cost of caring (london, p.s.i, 1990). 107 the denning law journal of the cases of mallinson (1994) and fairey (1997), a blind person in august 2000 can be entitled to not more than £49.45 a week d.l.a. benefit (middle care and lower mobility components). hardly a generous allowance having regard to the fact that according to an e.d. study a blind person requires £238 a week to cover the additional costs connected with his disability and the british government pays £335 weekly residential care allowance for caring for a severely disabled person in the greater london area. if blindness occurs through an industrial accident then he/she is entitled to an industrial injuries disablement benefit of £ 108.10 weekly. in many european countries disabled persons are given as much as £300 weekly allowances to lead a normal life in society. the united kingdom (which asserts to be a caring society and at present is one of the most successful economies in the world) can legitimately be expected to do better for its disabled population. furthermore, about £1.5 billion each year remains unclaimed by those who are lawfully entitled to various benefits. this is mainly due to lack of information about the rules of entitlement, proud claimants refusing to claim because they feel that applying for social security benefits is not respectable, and general inefficiency in the d.s.s. system.43 however, society has not remained totally impervious to these concerns. the then minister for disabled people, mr. nicholas scott, on 7th february 1991 informed the house of commons that the government expenditure on disability benefits over 1979-1991 had increased by 120 per cent.44 furthermore, £1 million a day was envisaged to be additionally spent on the enhancement of these benefits by the new legislation. 43 indeed, the reform of the system has been called for over the previous years by many including its close scrutineers. describing the process as "lamentable," commissioner j. mitchell in ca153-1989 said, "the sooner it is revised, the better." michael rowell, "social security commissioners' decisions" [1991] journal of social welfare and family law 231 at pp.237-238. the ordinary appellants find the detailed rules and procedures of social security law "incomprehensible." bell, "social security tribunals, a general prospective" (1982) 33 nf.l. q. 132 at p.141; see also k.mullan, infra n.44 at p.69. 44 hansard, supra n.16. highlighting some nonsensical distinctions drawn by other judges in reckoning the care needs of an incontinent claimant, lord slynn said, "it seems to me that the district nurse or healthcare worker ..... would be astonished that lawyers should draw such distinctions." (supra n.2 at 864). this comment may be justifiably attributed to the "restrictive" grant of benefits predicated by some judges which is contrary to the amplification of provision by parliament. thus hansard can be referred to in aiding the statutory construction. the recent case law shows that courts are "liberal and permissive" to allow the adduction of hansard in these circumstances where otherwise "absurdity" may ensue; see k. mullan, "pepper v. hart and social security law, practice and procedure" (1997) 4 l.s.s.l. no.2, 52 at p.70; also bates, "the contemporary use of legislative history in the united kingdom" (1995) 54 cl.l. 127. 108 disability benefits law contrasted with these facts, the courts' pre-occupation with safeguarding the public funds appears to be misconceived. instead, it is not unfair to expect from the judiciary to seize upon the clear drifts in the mood of parliament in a positive direction and take a pro-disabled approach where it is justified. harsh workings of the doctrine of stare decisis substantial unfairness has been injected into the comprehension of relevant issues in this field by an over-technical and inflexible adherence by judges to the doctrine of stare decisis. in the fairey case, lord justice hobhouse , when justifying his view that "seeing" was not a "bodily function" and that lord woolf had got it wrong in the mallinson case, buttressed it, inter alia, not only by referring to the 1984 judgment of the house of lords, in re woodling (as if there is an absolute prohibition for a house of lords bench sitting in 1994 not to depart from a decision taken in 1984), but also said that lord woolf s opinion was not in conformity with the court of appeal's decision in packer's case of 1981.45 it appears that in the mallinson case lord lloyd of berwick could not fully appreciate the limitations imposed by the lack of eyesight, as compared with physical disabilities. his lordship felt himself constrained by the syllogism that bodily functions were only those which "a fit man normally performs for himself. ,,46 accordingly, in the mallinson case his lordship could not treat "seeing" as a bodily function because it was not something a person "performed." was it necessary for lord lloyd to adopt this approach? the answer is "no." "perfonn" or variations ofthis word do not feature in the parent legislation. the idea that bodily functions have to be "performed" comes from a 1974 decision of a social security commissioner. it was adopted by lord justice o'connor in the packer case in 1981 and then approved by lord bridge in the woodling case in 1984. it is worth noting that neither the commissioner nor subsequent court decisions categorised this definition of "bodily functions" so finely as to make any other definition impermissible. without doing any violence to the statutory language whatsoever, one can safely say that bodily functions are those which a fit person performs for himself or would perform for himself but for the disability. blindness is a disability and the person lacking the ability to see cannot perform many bodily functions. his care needs arising from his inability to perform such functions should correctly be held as giving 45 supra n.2 at 865. 46 mallinson v. secretary of slate for social security [1994] 1 w.lr. 630 at 659. 109 the denning law journal him entitlement to a benefit which has been specifically provided by the parliament for that purpose. it is submitted that there is no restriction on judges to feel themselves imprisoned by words used in earlier decisions which are not in the parent statutory instruments. they should vigilantly ignore them in the cases where that is crucial to preserve the real spirit and "purpose" of the relevant legislation. relegating the animus legis to the second rank, and desisting from judicial intervention where thousands of disabled individuals were likely to be affected adversely if a positive, pro-active, justice-oriented intervention was not made, lord lloyd in the mallinson case overly adhered to the "adversarial" tradition and said that since throughout the proceedings "walking" was the function on which the case of mr. mallinson was pleaded, he would not consider "seeing" to be the relevant function.47 given the oft-acknowledged "inquisitorial" nature of the social security jurisdiction, this approach was wholly unjustified. on the other hand, acting as a judge in the "golden" tradition, lord woolf focussed his mind on "seeing" as being the function most relevant to dispose of the mallinson case justly. a commentator categorised lord woolfs approach as "imaginative" and "certainly more in keeping with the inquisitorial ethos of ssats (social security appeal tribunals) and other tribunals" within the social . security system.48 the fair approach lord slynn's pronouncements in the cockburn and fairey judgments, it is submitted, reflect a thoroughly just and fair approach. his lordship, whilst recognising the full extent of the lawful entitlement of disabled claimants and showing caring determination that they are not short-changed by the system, pays full regard to legal boundaries of the governing provisions. he mentions that the system is not "open-ended" and that: "the question in each case is whether the particular activity said to be attention reasonably required by the individual because of the severe disability affecting the relevant function is reasonably required in connection with that function.,,49 47 ibid. 48 n. wikeley, "case analysis mallinson" (1994) 11. of s.s. law 80 at p.83. 49 supra n.2 at 865. 110 disability benefits law his lordship spotlights the central purpose of the disability benefits as being devised to enable a disabled person to lead a nonnallife in a civic culture. he reiterates this theme in his dissenting judgment in the cockburn case as follows: "thus, as i see it, the attention here is not to be seen as the act of taking a bundle of clothes to the laundry or to the laundrette, or putting them in the washing machine or wash them at home. the attention relied on is the act of making sure that the severely disabled person who· cannot do these things for herself is kept clean and comfortable in decent conditions."so however, lord slynn also puts proper boundaries around what is acceptable to be taken into account in working out entitlement and states that "attention" "must have active, close caring personal qualities."sl it is hoped that in future the judiciary takes as robust an attitude as lord slynn does. given the professional circumspection with which his lordship has expressed his views in the cockburn and fairey appeals, such an approach will be entirely just and fair. conclusions after careful scrutiny of packer's case (1981), the woodling case (1984), the court of appeal decisions in the mallinson, fairey and cockburn cases, and the opinions of the law lords in the cases of mallinson (1994) and }<airey and cockburn cases (1997), one finds that, even though not "compelled" by the parlance of the statute, the majority of judges have been restricting the availability of disability benefits, or the higher level ofthem, as follows: (1) "attention" required has been qualified not only to be of the "personal" or "close caring" variety but has to be "intimate" and rendered in the "presence" of the disabled person, or given in the course ofthe helper's "attendance on" him. 50 ibid at 818-819. as compared with a "medical model," the "social model" of disability advocates the provision for catering "care needs" imposed on a person with disability for want of adequate services and the failure of the society to make appropriate adjustments to its infrastructure to meet the special requirements of a disabled person. i agree with professor wikeley when (categorising it as a "fundamental transformation") he says: "the decision in fairey reflects a shift away from a purely medical model of disability" n. wikeley, supra n.14 at p.560. for further details on this aspect, see two books by the leading proponent of the "social model" professor. mike oliver, the politics of disablement (macmillan, 1990) at p32; and understanding disability: from theory to practice (macmillan, 1996). 1 supra n.2 at 865. 111 the denning law journal the depth of detriment of this approach can be illustrated by the need of a blind person to read a letter. he has a fax machine and transmits it to somebody fifty miles away to read it to him over the telephone not much different from the case of a physically disabled claimant who is incontinent and she cannot wash her clothes because of arthritis and her dirty bed linen and clothes are taken away by a carer to be cleaned at her own home where she wishes to do it because she has to supervise her young children at the same time. if current judicial approaches are faithfully applied, the care needs in the above two examples are not likely to be reckoned in working out the benefit entitlement. (2) "bodily functions" are construed with over-zealous regard for technicality. what are the exact care needs of disabled people, and which needs ought to be reasonably catered for, is lost sight of in the process. (3) either the judges themselves, or advocates presenting the cases before them, appear to be stuck in a time warp and judgments of 1981 and 1984 are being referred to as if there has been no appreciable shift in the provision of benefits by the government, commensurately reflected in the more recent legislation. (4) the judges, rather disappointingly, have failed in many cases to make a positive contribution to improving the plight of disabled people. they could at least refrain from interpreting the relevant statutes negatively. in this regard the disabled claimants and pursuers of their fair claims, however, cannot overlook the constructive contribution of some judges who have interpreted the law fairly and in line with the changing social policy, particularly, lord woolf in the mallinson case and lord slynn in the cockburn and fairey cases. more of this kind of fair and balanced approach is needed to be taken by judges dealing with cases in this field, always wary of the fact that, hopefully with more willingness of the society and parliament to make better provision for disabled citizens, the earlier precedents will become even more irrelevant and discardable. 112 unincorporated associations: property holding, charitable purposes and dissolution 175 denning law journal 2010 vol 22 pp 175-188 case commentary proprietary estoppel: a new chapter dawns? thorner v major and others [2009] 1 wlr 776 judith bray* the background to the case the decision of the court of appeal in thorner v major1 briefly constructed an almost impossible strait-jacket around potential claimants under proprietary estoppel, reminiscent of the way the strict requirements under the willmot v barber2 probanda had earlier limited such claims3. the court of appeal held in thorner v major4 that an assurance of rights had to be clear and unequivocal in order to give rise to property rights and on the facts of this case the assurances had been too vague to give rise to such rights. in an area of law based on informality and often vague promises it appeared that the law was now in retrenchment and was reasserting the need for very strict limitations on the circumstances in which property claims under proprietary estoppel could arise. as brian sloan in his case comment stated: “in thorner, the court of appeal tightened the requirements for a relevant representation, thereby shifting that balance in favour of the alleged representor and his or her estate.” other writers went as far as to suggest that as a result of this decision and also the house of lords decision in yeoman’s row management v cobbe 5 * llb, llm (lond), barrister, reader in law, university of buckingham. 1 [2008] ewca civ 732. 2 (1880) 15 ch d 96. 3 see gray and gray elements of land law (oxford: oxford university press 5th edn, 2009) p 1207 where the five willmot v barber probanda are described as “a straitjacket imposed on the development of proprietary estoppel.” 4 above n 1. 5 [2008] ukhl 55. case commentary 176 there would be a dramatic curtailment of the scope of the doctrine.6 however, within a matter of months the decision of the high court had been reasserted and the house of lords upheld the claim of david thorner, based not on an express promise of property rights but on an indirect expression of intention that the claimant would inherit the property and, more significantly took into account the surrounding pattern of conduct. this article examines the basis on which a claimant can make a successful claim based on proprietary estoppel today and considers whether the courts now regard the house of lord’s decision in thorner v major7 as having introduced a lower standard for an assurance in a proprietary estoppel claim both in respect to the promise of rights made and also as to the identification of the property concerned. it will also consider the wider issue of the difficulties presented to the courts where an assurance is made which relates to future testamentary rights. the facts of the case david thorner was a farmer in somerset. for nearly thirty years, from 1976 he worked without pay on the farm of his father’s cousin, peter thorner and contended that he had been encouraged by peter thorner for a period of fifteen years before he died to believe that he would inherit peter’s farm. he maintained that in reliance on this encouragement he had continued to work without pay. peter thorner had made a valid will under which he left the farm to david but had revoked it prior to his death and died intestate. the revocation of the will was unconnected with his relationship with david. they had not fallen out and david had continued to work for peter until he died in 2005. both the court of appeal and the house of lords held quite correctly that the existence of an earlier but unenforceable will was irrelevant to the proof of a claim under estoppel. for david to make a successful claim against those who had rights in the farm under the intestacy rules,8 he had to rely on proprietary estoppel and to prove the three established elements namely, an assurance, reliance on that assurance and detriment.9 although deputy judge 6 see generally b mcfarlane and a robertson “the death of proprietary estoppel” [2008] lloyd’s maritime and commercial law quarterly 449. 7 [2009] 1 wlr 776. 8 under the administration of estates act 1925, intestate estates act 1952 and the family provision (intestate succession) order 1987 the estate of peter thorner would pass to his next of kin who were his siblings, two sisters and also a niece so david thorner would inherit nothing. 9 as established in taylor fashions ltd v liverpool victoria trustees co ltd [1982] qb 133. the denning law journal 177 john randall qc had at first instance found evidence of an assurance10 in favour of david thorner, the court of appeal had greater difficulty.11 peter thorner had been a man of very few words and there was little evidence that he had ever discussed the farm and who would own it after his death in any detail with david thorner. david’s case principally relied on a conversation in 1990, when peter had handed over an insurance policy bonus notice with the words “that’s for my death duties” and also on inferences to be derived from the circumstances of their relationship over thirty years. the court of appeal found against david thorner on two main grounds. firstly, the court considered to what extent an assurance had to be clear and unequivocal in order to give rise to rights. there had been some difference of opinion prior to thorner as to precisely how clear the assurance had to be in proprietary estoppel. although in previous cases such as re basham12and jennings v rice13 the court had been prepared to uphold claims based on fairly loose assurances such as “all this will be yours one day”14 the court of appeal in this case were more reluctant to uphold a claim on such a loosely worded assurance of rights. lord justice lloyd suggested that the conduct of peter thorner in this case could have been consistent with a current intention to leave david the farm but was not a definite assurance of future rights on which the court held proprietary estoppel rests. he quoted from j.t. development ltd v quinn15 where lord justice ralph gibson said “the law requires that a representation, if it is to provide the basis of an estoppel, be clear and unequivocal and that it be intended to be relied upon.”16 lord justice lloyd concluded that although the law did not lay down any precise form for an assurance or promise there was a general requirement that it must be clear and unequivocal. he suggested further that even where the assurance was based on conduct alone it too must be clear and unequivocal.17 secondly, the court of appeal revisited the difficult issue of the testamentary promise. for many years it was assumed that such promises could not be relied on in proprietary estoppel because they stifled the 10 thorner v curtis [2007] ewhc 2422 (ch). 11 above n 1. 12 [1986] 1 wlr 1498. 13 [2003] 1 p & cr 100. 14 ibid at para 17. 15 [1991] 2 eglr 257. 16 ibid at 261. 17 above n 1 at para 54. case commentary 178 important principle of testamentary freedom. even as recently as 199818 a claim based on the promise of property rights under a will was rejected by judge weeks q.c. on the basis that the deceased had never given an assurance that she would never change her will. judge weeks took the view that in such cases the claimant must also establish that the deceased had encouraged a belief that he/she would not revoke her will and the claimant had also relied on that encouragement. this view was criticised widely19 and the apparent limit it placed on many claims under proprietary estoppel. the point was addressed two years later in gillett v holt20 where lord justice robert walker held that an assurance of property rights under a will can be binding on the future testator so that the assurance will crystallise into a binding assurance. the point when the assurance or promise will crystallise into rights occurs when the promisee acts in reliance on that promise to his/her detriment. in gillett, the promisor was still alive so it was significant that the court upheld the claim of the promisee against the promisor’s estate.21 lord justice lloyd considered this judgment and others and concluded: “while there is no special rule as to the form or nature of the promise, representation or assurance which is capable of providing the basis of a proprietary estoppel case as regards a claim against a deceased’s estate, it seems to me that the general requirements that there must be a clear and unequivocal representation, and that it must be intended to be relied on, or at the very least that it must be reasonably taken as intended to be relied on, are of no less importance in this type of case than others, and they must be applied with care.”22 he pointed out that in the case of statements made about testamentary intentions may not necessarily be intended to be taken as promises of future property rights.23 he concluded that where assurances of future property rights under a will, proprietary estoppel cannot be based on conduct or standing by or indeed anything less than a clear promise or assurance that the claimant will inherit. 18 taylor v dickens [1998] 1 flr 806. 19 see generally m p thompson “emasculating estoppel” [1998] conveyancer and property lawyer 210. 20 [2001] ch 210. 21 see martin dixon “estoppel and testamentary freedom” [2008] conveyancer and property lawyer 65 where he reflects that in this context estoppel becomes “a very sharp sword indeed.” 22 above n 1 at para 54. 23 ibid. the denning law journal 179 within a matter of months the house of lords unanimously reversed the decision of the court of appeal and upheld the claim. the house of lords revisited the nature of the assurances made. the real difficulty presented to the court was the lack of a definitive moment when the property rights arose and also the issue of whether it was material whether or not peter thorner believed that david would rely on the assurance given. although there was no definitive assurance made by peter, the judges were persuaded that the pattern of conduct after the indirect assurance as well as the context in which it was said was as important in proving a clear and unequivocal express assurance of rights. as stated by lord hoffman “past events can provide context and background for the interpretation of subsequent events and subsequent events throw retrospective light upon the meaning of past events”24. he drew a wonderfully evocative comparison with the owl of minerva which he said “will only spread its wings with the falling of dusk.”25 the reference was later embraced by lord neuberger in his critical appraisal of thorner v major and cobbe v yeoman’s row management given in a lecture in june 2009.26 lord neuberger reiterated lord hoffman’s view that the meaning of words and judgment should always be assessed in their factual context. he commented “the meaning of words and actions was to be assessed within their factual context, which assessment the judge had conscientiously and carefully carried out.”27 lord neuberger had also heard the case of thorner and he stated in his judgment as follows: “it would be wrong to be unrealistically rigorous when applying the ‘clear and unambiguous’ test. the court should not search for ambiguity or uncertainty, but should assess the question of clarity and certainty practically and sensibly, as well as contextually.”28 he continued by stating that: “…it is sufficient for the person invoking the estoppel to establish that he reasonably understood the statement or action to be an assurance on which he could rely.”29 24 above n 8 at 780 para 8. 25 ibid. 26 “the stuffing of minerva’s owl? taxonomy and taxidermy in equity” [2009] cambridge law journal 537 at 544. the second memorial lecture for jonathan brock qc at the inner temple hall london on june 9 2009. 27 ibid at 540. 28 above n 8 at 801 para 85. 29 ibid. case commentary 180 their lordships, in particular lord neuberger, also considered at some length the uncertainty as to the extent of the property peter promised to david. over the years the size of the farm had varied as parts had been sold and parts had been purchased. the court of appeal found that this also undermined the clarity of the assurance made. lord neuberger commented as follows: “it would represent a regrettable and substantial emasculation of the beneficial principle of proprietary estoppel if it were artificially fettered so as to require the precise extent of the property the subject of the alleged estoppel to be strictly defined in every case.”30 their lordships concluded that the identification of the property must be sufficient to give the promise the clear and unequivocal character required to found estoppel but it need not be defined with precision. this is a very important issue since there may be a considerable, lapse in time between the representation and the moment when the equity is satisfied. in the context of property such as a farm there may be many changes from year to year as the exact extent of the farm fluctuates. the claim of peter thorner clearly engendered support from the house of lords and it is hard to criticise a claimant who on the evidence had often worked tirelessly for a relative with virtually no pay apart from pocket money. however this decision may be said to have highlighted the inherent problems in proprietary estoppel rather than providing a coherent solution.31 the effect of this decision will become increasingly clear as its impact is seen on subsequent decisions. subsequent cases several cases on proprietary estoppel have been decided in the light of the decision in thorner v major. although these are relatively few in number and even fewer are based on facts which are similar to thorner the following analysis of these cases may show whether there has been a sea-change in the 30 ibid. 31 see “proprietary estoppel: a return to principle?” [2009] conveyancer and property lawyer 260 at 267 where dixon comments “that thorner is important is undeniable, but perhaps also for what it omits to discuss, as much as for what it does decide.” see also “apocalypse averted: proprietary estoppel in the house of lords” [2009] law quarterly review 535 at 542 where mcfarlane and robertson comment “in the longer term, the decision in thorner v major may force a re-examination of some of the more tricky questions relating to proprietary estoppel, such as the extent of the rights it gives rise to and the scope of its application beyond cases involving land.” the denning law journal 181 court’s approach to some key issues in proprietary estoppel such as proof of both an assurance and the extent of property in such cases. one of the first cases to be heard was stallion v albert stallion holdings32 it is difficult to draw more than a passing inference from the approach of the judge in this case33 since the facts of stallion and thorner were very different. however the relevance lies in the fact that the nature of the assurances made in stallion were in dispute in the same way as the assurance in thorner. the claim was made by porntip stallion against albert stallion, the deceased. she was his third wife and had been married to him for six years. the marriage had ended when the deceased had asked the claimant to divorce him in order for him to marry his fourth wife lilibeth. she had agreed but on certain terms which were agreed between them both orally and in the form of two separate written agreements. one of the agreed terms was that she would be able to live rent-free for the rest of her life in property, which had once constituted their matrimonial home and to be granted a five year contract of employment with an agreed salary and to be given a fully serviced car in lieu of an order for ancillary relief. on his death the deceased left his entire estate to lilibeth. on being asked to leave the premises porntip had claimed that she had a lifetime right to occupy the premises based on proprietary estoppel. the judge referred to lord scott’s judgment in thorner 34 accepting that in this case only those representations which were clear and unequivocal could be binding and on that basis the judge upheld an oral agreement which allowed the claimant to live rent-free in the premises for the rest of her life. it is difficult to draw much from this judgment since in this case both representations had been written down and the oral representations had been made in front of witnesses. however it is worth noting that the judge placed great weight on the nature of the representation and took pains within her judgment to justify why she found in favour of the claimant rejecting the agreement of june 30 as follows “i would have found that the representation contained in the 30 june agreement was insufficiently clear in relation to the extent of the premises over which porntip was intended to have exclusive occupation and the date from which it was intended to take effect, to be effective.”35 in macdonald v frost,36 another first instance decision, based on proprietary estoppel a claim was made by two daughters averil macdonald and deborah bannigan against their deceased father’s estate. their father had made a will under which they and their children had been left nothing. they argued that their father had given them both assurances of property rights 32 [2009] ewhc 1950. 33 sarah asplin qc sitting as a high court judge. 34 above n 28 at para 123. 35above n 23 at para 125. 36 [2009] ewhc 2276 (ch). case commentary 182 during his lifetime which would be binding on the estate. as in thorner everything hinged on the nature of the assurance made, the nature of the property over which the assurance had been made and whether or not the assurances were binding. the daughters argued that their father had made a clear and unequivocal promise with his first wife and their mother that “whatever happened, the estate of the survivor would pass to their daughters in equal shares” and in reliance on that promise they both supported their father financially until his death some twenty years later. the father remarried seven years after the death of the daughters’ mother and he had made a new will under which the two daughters did not take any benefit. the background to the case suggests that the daughters and the second wife were not on good terms although it was clearly stated in court that the daughters had no wish to deprive the second wife of her home but merely to claim the residuary estate after her death based on the earlier promise made by their father. such cases are the very stuff of claims in proprietary estoppel. there was no doubt that they had acted to their detriment by supporting their parents financially for such a long period of time but as in stallion the judge37 was at pains to point out that “the crucial question that she had to decide was whether there was an assurance or series of assurances that was sufficiently clear and unequivocal to give rise to a proprietary estoppel, bearing in mind the guidance in thorner38.” the father had made a payment of £20,000 to one daughter and discounted the price of property he owned on sale to the other daughter. the judge could find no assurances or promises of property rights after their father had remarried. the judge continued “if and insofar as the monthly instalments were also made by joe’s daughters in the expectation of receiving the balance of the inheritance, that expectation was not fostered by any specific promises made to averil and deborah.”39 so in spite of what the judge referred to as “a tacit assumption that averil and deborah would inherit their parent’s estate in equal shares” 40 their claim failed. this decision seems to lean against any relaxation in what must be proved for an assurance to be binding. the judge said she had sympathy with the claimants but “it is not the function of the court to re-write joe’s will so as to produce a fairer distribution of his estate than he himself intended.”41 such words must suggest that there is no particular relaxation in the judicial approach to proof of an assurance postthorner indeed if anything it could suggest a greater need for clarity. the 37 geraldine andrews qc (sitting as a judge of the high court). 38 n 37 at para 21. 39 n 37 para 128. 40 ibid. 41 n 37 para 130. the denning law journal 183 clear message from this judgment echoed lord hoffman’s view that context is everything.42 on the same day as the decision in macdonald v frost another proprietary estoppel judgement at first instance was given. the claimant’s case in gill v woodall43 was complicated by disputes over the validity of the will and the possibility of undue influence. the judge44 found the will to have been validly executed but since there was evidence of undue influence he duly set it aside and the issues of proprietary estoppel took a lesser role in the case. however the judge reviewed the various judgments in the house of lords as to what constitutes an assurance concluding inter alia “that an assurance may be sufficient to found an estoppel even if it is not made expressly; it can be made in oblique and allusive terms; it may be subject to unspoken and ill defined qualifications.”45 he also concluded that “this is an issue of fact heavily dependant upon the context in which the assurance or assurances was or were made (including the characteristics of the protagonists, the relationship between them and whether assurances were repeated and formed part of a pattern) on which evidence of the parties’ subjective understanding of what they were agreeing is admissible.”46 the claimant successfully contested the will of her deceased mother made in favour of a charity, the rspca. in addition to the claim of undue influence she also relied on a number of assurances made to her over a period of time, sometimes in front of witnesses, such as her father’s conversations with a number of people that he wished the farm to be kept for the “next generation” a comment by her father to friends about the farm “after all it’ll be hers one day” and advice from her mother that she should keep a copy of some plans of drains about the farm as they would be of use to her sometime in the future. cumulatively these promises were sufficient to persuade the judge that there had been an assurance of property rights which would have been binding on the court even if the will had not been set aside. there was much here to echo the facts of thorner and gillett v holt. cook v thomas47 was one of the first cases to be heard by the court of appeal since thorner and perhaps gives the best indication of all as to the impact of the case on estoppel claims. as lord justice lloyd aptly commented in the opening words of his judgment “the litigation arises from a 42 n 37 para 21 “i have to consider and evaluate the evidence of averil and deborah against the background of any relevant contemporaneous documents, the behaviour of all main protagonists, and the underlying probabilities.” geraldine andrews qc. 43 [2009] ewca 834. 44 mr james allen qc sitting a deputy judge of the high court. 45 above n 44 para 518. 46 ibid. 47 [2010] ewca civ 227. case commentary 184 most unfortunate and regrettable dispute.”48 the claimant mrs thomas was the only daughter of an elderly widow. the parties had fallen out and the mother sought to evict her daughter and husband from the property, a farm and smallholding in ross-on-wye. the daughter relied on certain promises made to her over a period of time and thereby claimed rights arising under proprietary estoppel as well as rights under a constructive trust and an alternative claim based on unjust enrichment. none of these succeeded. the daughter had been on poor terms with her parents after her marriage to the second defendant, her husband. however after her father died the daughter and her husband had moved back to the farm and lived in a mobile home in the grounds of her mother’s farm paying a small ground rent to her mother. mrs thomas contended that over a period of five years her mother had led her to believe that she would gain rights in the property both expressly and impliedly by her conduct. then the parties fell out again and eventually the mother sought to evict them and this was the basis of the claim before the court. there was evidence that the mother had invited them to live in the property when, after a storm, their mobile home became uninhabitable but she contended that this was because she felt sorry for them on the other hand the claimant and her husband contended that she had told them that if they carried out certain repairs to the property “then they could move in the farmhouse and occupy that part of it from then on as long as they needed to while she was alive, instead of waiting until her death.”49 much of the defendants case was based on the findings of fact made by the judge at first instance. lord justice lloyd once more gave the leading judgment in this case having given the leading judgment in thorner v major in the court of appeal. his decision relied in part on rules of evidence and he used a range of cases where the credibility of witnesses had been at issue.50 of course this decision differs from the vast majority of proprietary estoppel cases because in this case the assurer was able to come to court to give evidence about what had been said. the mother, in spite of her age, was quite clear in her evidence that she had not given the daughter and her husband any assurances about property rights and had merely helped them out in an emergency when the roof of their mobile home had blown off and they had nowhere to live. it is rare in estoppel cases for the assurer to be able to give evidence as shown above in thorner v major, stallion v albert stallion holdings, macdonald v frost and gill v woodall. where the assurer has died it is for the judge to decide whether or not he believes the evidence of the estoppel claimant since the assurer cannot be questioned about the exact nature of any assurances given. lord lloyd 48 ibid at para 1 49 above n 48 at para 19. 50 benmax v austin motor co [1955] ac 370; biogen inc v medeva inc [1997] rpc 1 assicurazioni generali sa v arab insurance group [2003] 1 wlr 577. the denning law journal 185 revisited thorner v major and in the light of the house of lords reversal of his judgment in that case commented on the evidence in cook v thomas as follows: “i see no indication in the judgment that the judge failed to take proper account of any relevant conduct. he looked at the evidence as regards the first promise in the light of circumstances as they then stood…nothing had been done by then which was relevant in support of the defendant’s case, unlike the history in thorner v major… where the claimant had been helping the deceased voluntarily for years before anything was said to him that could amount to a promise or representation.” commentary proprietary estoppel has been recognised as a doctrine for many centuries. as thompson comments “equitable estoppel is a doctrine of considerable antiquity.”51 however the modern requirements as laid down in taylor fashions52 are very broad and leave much to the court’s discretion. this has resulted in a large body of case law surrounding what the court would regard as an assurance or representation which could be deemed to give rise to an equity in favour of the claimant. proprietary estoppel had not been substantively discussed by the house of lords since ramsden v dyson53so the decision was awaited with particular interest and anticipation. does the decision herald a new chapter in the development of proprietary estoppel or merely a postscript to what has gone before? thorner v major was decided on a number of issues, in particular it considered how clear an assurance must be in order to found property rights and also how clearly must the property itself be described. in relation to the assurance each judge in the house of lords in varying degrees retreated from the strict terms set down by lord lloyd as to what is needed to constitute a “clear and unequivocal assurance.” lord walker relied on the differences that exist between promissory estoppel and proprietary estoppel and relying on various sources54 showed that there is authority that the “clear and unequivocal” test does not apply to proprietary estoppel. however he added that “to establish a proprietary estoppel the relevant assurances must be clear 51 modern land law (oxford: oxford university press, 4th edn, 2009) p 558. 52 above n 11. 53 (1866) lr 1 hl 129. 54 treitel the law of contract (london: sweet and maxwell, 12th edn, 2007); slade lj in jones v watkins (unreported) 26 november 1987; [1987] ca transcript no 1200. case commentary 186 enough.”55 he added: “what amounts to sufficient clarity, in a case of this sort, is hugely dependent on context.”56 their lordships comments in relation to an assurance were all carefully applied in the subsequent cases described above. each judge was careful to consider whether the words or conduct relied upon could constitute an assurance but did not fall into the trap of allowing property rights to arise where there was detriment without the connection to an assurance. so in macdonald v frost no rights arose for the daughters who had clearly suffered financial detriment, who had clearly believed they had a future right to their father’s estate but could not prove that there had been an assurance from their father even within the more flexible definition laid down by the house of lords in thorner. in relation to the description of the property itself there was less difficulty in disposing of lord lloyd’s hesitancy over allowing a claim where the assurance related to “steart farm” without any reference to the extent of what that meant. as already commented57 lord neuberger dealt with this issue as follows “in this case, the extent of the farm might change, but, on the deputy judge’s analysis, there is, as i see it, no doubt as to what was the subject of the assurance, namely the farm as it existed from time to time. accordingly, the nature of the interest to be received by david was clear: it was the farm as it existed on peter’s death.”58 there are two real fears for property lawyers post-thorner. firstly, the greater degree of uncertainty surrounding claims under proprietary estoppel. since an assurance can be made impliedly and the court can infer evidence of an assurance of rights from the context it will be very difficult to advise whether the context is sufficient for the establishment of rights. of course there are cases prior to thorner where the claim has been based on an implied assurance. lord cranworth in ramsden v dyson59 makes it quite clear that silence in the face of a neighbours encroachment on your land will give rise to rights but these cases are quite different. these are cases where property may pass where there has never been an express promise or consensus that the property will pass. the facts of thorner itself suggest that this will be strictly applied so rights will only pass where the context is clear that the property owner always intended the property to pass but never articulated this clearly to the claimant. where this principle begins to unravel is over the question of the location of title prior to the death of the owner. lord scott highlights this difficulty clearly. he considers the question of what would happen if after peter thorner had impliedly assured david of the farm peter had then become 55 above n 8 at 794 para 56. 56 ibid. 57 see above at n 26. 58 above n 8 at 803 para 95. 59 above n 50. the denning law journal 187 ill and needed nursing care could the farm be sold and used for his care? if as is suggested david now had rights in the farm peter would not be able to do this but lord scott suggests that peter still had sufficient rights in order to enforce his rights. “if, for example, peter had become, before his death, in need of full time nursing care, so that he could not continue to live at steart farm or continue as a farmer and needed to sell steart farm or some part of it in order to fund the costs of necessary medical treatment and care, it seems to me questionable whether david’s equity in steart farm, bred from the representations and conduct in evidence in this case would have been held by a court to bar the realisation of steart farm, or some sufficient part of it, for those purposes.” so what could david be said to own after the implied assurance had been made. in the most recent case of cook v thomas if the court had found in favour of mr and mrs thomas it would have been open for it to have found a property right in their favour which would then have been binding on mrs cook during her lifetime. one of the key responsibilities of a sound property law system is to ensure that title to property can be located with a high degree of certainty at all times. it should not be open to a claimant x to suggest that he owns an interest in property dependent on vague promises and the interpretation of events. there is a worrying contrast between the need for reliance on formality for the acquisition of property where it is conveyed to the purchaser and the disregard of formality in cases of proprietary estoppel. although as a result of cobbe v yeoman’s row management ltd60 proprietary estoppel can no longer be used as a way to circumvent the need for an enforceable contract in the purchase of land other formalities such as the requirement of a valid will appear to be approached in a different way. peter thorner had once made a valid will and he clearly knew that it was a necessary formality. some academics have argued that it is the assurance and its effect on the claimant that replaces the formalities of property transfer61. perhaps lord lloyd’s strict interpretation of what constitutes an assurance was an attempt to rein in the expansion of informal property rights where clarity and certainty should be paramount. so in allowing an assurance to be based on implication and context the house of lords have opened the possibility of greater uncertainty in acquiring property rights in this way. the second fear for property lawyers is the uncertainty surrounding the court’s interpretation of the facts. lord hoffmann placed great weight on 60 above n 6. 61 m dixon “proprietary estoppel: a return to principle?” [2009] conveyancer and property lawyer 260. case commentary 188 context and this was echoed throughout the other judgments. a very heavy onus will now rest on the findings of fact of any judge at first instance in estoppel cases. so much rested on the findings of fact of mr john randall qc in thorner v curtis62. it would seem from the court of appeal’s decision in cook v thomas63 that considerable weight will now be placed on what was the judge at first instance’s view of the witnesses and whether the judge finds that an assurance has been made. the very long and detailed judgement in macdonald v frost64 suggests that the judiciary at first instance will now evaluate the evidence in great detail in these cases to ensure that the alleged assurance is considered in its context. however in a case where the equity of the property was valued at approximately £200,000 the thirty-one page judgment seemed unnecessarily detailed. there was disquiet in the house of lords that lord lloyd had been prepared to reverse the findings of fact of the lower court. lord neuberger commented that although it would be possible for the court of appeal to reverse the first instance decision on fact he concluded “in a case such as this, where the facts are unusual and the first instance judge has made full and careful findings, an appellate court should be very slow to intervene.”65 is this a new chapter in the development of this doctrine? clearly over the centuries it has played an important role in addressing what the court deems to be unconscionable.66 so often the court in proprietary estoppel seeks to uphold property rights because it would be unconscionable for the claimant to be denied rights67 indeed many would argue that this is the real basis of proprietary estoppel68 laudable as this has always seemed in the context of property rights the parameters of the doctrine should have a clearer definition. however in seeking clarity it is important that the flexibility of estoppel is not lost. 62 above n 11. 63 [2010] ewca civ 227. 64 above n 32. 65 above n 8 at para 81. 66 see generally h delany and d ryan “unconscionability: a unifying theme in equity” [2008] conveyancer and property lawyer 401. 67 see jennings v rice [2002] ewca civ 159. “…the essence of the doctrine of proprietary estoppel is to do what is necessary to avoid an unconscionable result” robert walker lj at para 56. 68 above n 69. case commentary judith bray* the background to the case the facts of the case subsequent cases commentary mangold v helm the denning law journal 233 case commentary mangold v helm (case c-144/04) grand chamber, european court of justice 22 november 2006 yet another way round horizontal direct effect… olga thomas∗ the facts in june 2003 werner mangold, who was 56 years old, concluded a fixedterm contract of employment with rüdiger helm. the contract provided that its duration was based on para 14(3) of the tzbfg (german law on parttime and fixed-term employment) which was intended to facilitate the fixed-term employment of older workers (those over the age of 52). a few weeks into his employment, mangold brought proceedings against helm before the arbeitsgericht münchen (munich labour court) claiming that the clause fixing the duration of his employment was void in that para 14(3) of the tzbfg, on which it was based, was incompatible with council directive 1999/70/ec of 28 june 1999 concerning the framework agreement on fixedterm work concluded by etuc, unice and ceep and council directive 2000/78/ec of 27 november 2000 establishing a general framework for equal treatment in employment and education. council directive 1999/70, concerning the framework agreement on fixed-term work, requires member states to introduce measures to prevent abuse through successive use of fixed-term contracts (clause 5) and provides that its implementation should not constitute valid grounds for reducing the general level of protection afforded to workers (clause 8(3)). council directive 2000/78, establishes a general framework for equal treatment in employment and occupation, prohibits direct and indirect discrimination on the grounds of, inter alia, age (art 2). however, it also provides that: “member states may provide that differences of treatment on grounds of age shall not constitute discrimination if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate ∗ llb (reading), llm (cantab), barrister, lecturer in law, the university of buckingham. the denning law journal 234 employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary” (art 6(1)). germany had exercised an option of an extended implementation period and therefore has to implement this directive by 2 december 2006. the tzbfg, which was introduced in 2000 to implement directive 1999/70, required the objective justification of fixed-term contracts. it was however amended in 2002 to allow the use of fixed-term contracts without such justification in the case of workers over the age of 52 (previously 56), to encourage the employment of older workers. this provision will expire on 31 december 2006, a few weeks after the date by which germany must have transposed directive 2000/78. the arbeitsgericht münchen sought a preliminary ruling from the european court of justice as to the compatibility of the domestic legislation as applied to workers over the age of 52 with clauses 5 and 8(3) of the framework agreement (council directive 1999/70) and art 6(1) of council directive 2000/78. european court of justice the ecj held: 1. clause 5 of the framework agreement (council directive 1999/70) was irrelevant to the outcome of the dispute of the national court in that the dispute concerned a single contract as opposed to “the use of successive fixedterm employment contracts.” [41] – [43] 2. clause 8(3) of the framework agreement (council directive 1999/70) did not prohibit domestic legislation lowering the age above which fixed-term contracts of employment may be concluded without objective justification, in that the latter was passed irrespective of the implementation of that agreement and for reasons connected with the separate need to encourage employment. [52] – [54] 3. the purpose of directive 2000/78 is to lay down a general framework for combating discrimination on any of the grounds referred to in art 1, which include age, as regards employment and occupation. para. 14(3) of the tzbfg, by permitting employers to conclude without restriction fixed-term contracts of employment with workers over the age of 52, introduces a difference in treatment on the grounds directly of age. however, the purpose of that legislation was plainly to promote the vocational integration of unemployed older workers, in so far as they encounter considerable the denning law journal 235 difficulties in finding work. an objective of that kind must as a rule be regarded as justifying, “objectively and reasonably”, a difference of treatment on grounds of age as permitted by art 6(1) of directive 2000/78. [56] – [57], [59], [61] 4. art 6(1) requires the means used to achieve that legitimate objective to be “appropriate and necessary”. member states enjoy broad discretion in their choice of the measures capable of attaining their objectives in the field of social and employment policy. however, in so far as the domestic legislation at issue takes the age of the worker as the only criterion for the application of a fixed-term contract of employment, when it has not been shown that fixing an age threshold, as such, regardless of any other consideration linked to the structure of the labour market in question or the personal situation of the person concerned, is objectively necessary to the attainment of the objective which is the vocational integration of unemployed older workers, it must be considered to go beyond what is appropriate and necessary in order to attain the objective pursed. observance of the principle of proportionality requires every derogation from an individual right to reconcile, so far as possible, the requirements of the principle of equal treatment with those of the aim pursued. such national legislation cannot, therefore, be justified under art 6(1) of directive 2000/78. [62-63], [65] 5. during the period prescribed for the transposition into domestic law of a directive, the member states must refrain from taking any measures liable seriously to compromise the attainment of the result prescribed by that directive. it is immaterial whether or not the rule of domestic law in question, adopted after the directive entered into force, is concerned with the transposition of the directive. the mere fact that the rule of domestic law was to expire on december 31, 2006, just a few weeks after the date by which the member states had to have transposed the directive, was not in itself decisive. [67] – [69] 6. a member state which exceptionally enjoys an extended period for transposition, is progressively to take concrete measures for the purposes of there and then approximating its legislation to the result prescribed by that directive. that obligation would be rendered redundant if the member states were to be permitted, during the period allowed for implementation of the directive, to adopt measures incompatible with the objectives pursued by that act. [72] 7. directive 2000/78 does not itself lay down the principle of equal treatment in the field of employment and occupation. the principle of nonthe denning law journal 236 discrimination on grounds of age must be regarded as a general principle of community law. consequently observance of the general principle of equal treatment, in particular in respect of age, cannot as such be conditional upon the expiry of the period allowed the member states for transposition of a directive intended to lay down a general framework for combating discrimination on the grounds of age. [74 – [76] 8. it is the responsibility of the national court to guarantee the full effectiveness of the general principle of non-discrimination in respect of age, setting aside any provision of national law which may conflict with community law, even where the period prescribed for transposition of that directive has not yet expired. [78] commentary if ever a judgment of the court of justice purporting to ensure the full effectiveness of community law would cause the disapproval of the academic opinion, then mangold certainly would be that case. mangold is a revolutionary judgment. it breaks new ground. it marks a path through the existing well-traversed terrain of direct effect of directives finding yet another way round what have been its well-established features: the lack of horizontal direct effect of directives and the lack of enforcement of directive-based rights prior to the expiry of the implementation period of the directive. the reasoning put forward for such new inroads is itself new: the idea that the directive embodies a pre-existing general principle and that national law could therefore be set aside by national courts, even though the implementation period for the directive had not expired. it is however unconvincing and its impact on this already convoluted area of european law disquieting. the court of justice in this case found that the german legislation allowing fixed term employment contracts to be used in the case of employees over the age of 52 without objective justification, pursued a legitimate objective permitted by council directive 2000/78.1 although it created a difference in treatment on the grounds of age, it promoted the employment of older workers who experience greater difficulty in finding employment, a legitimate justification under the directive. the legislation was however found to be incompatible with the directive in that it failed the test of proportionality, which was strictly applied by the court. the court found that, contrary to the principle of proportionality, the national legislation went 1 council directive 2000/78/ec of 27 november 2000 establishing a general framework for equal treatment in employment and education, o j 2000, l303/16. the denning law journal 237 beyond what was appropriate and necessary to achieve its objective of enhancing the employability of older workers. it objected to the fact that age was the sole criterion for applying the fixed-term contract without restriction, which meant all workers above 52, whether they were unemployed or not before then, could be offered fixed-term contracts renewable until the age of retirement without restriction. without referring to the personal circumstances of the worker concerned, the legislation would therefore apply the difference in treatment in all cases, even in cases when its objective did not really apply. in that sense it was inappropriate and unnecessary and thus disproportionate. but the most interesting and important aspects of the court’s decision relate to the consequences of such an infringement of age discrimination directive provisions. effect / consequences of a directive during transposition period the court’s decision obliged the national court to set aside the national law infringing the directive. the problem created by this is that at the relevant time the deadline for transposition of that directive had not yet passed. this was not the first time however that the court had dealt with directives and their effects before their implementation time limit had expired. very early on in its jurisprudence the court had been asked in the case of ratti2 whether a directive could be relied on by an individual before the time limit for its implementation had expired and it made it clear that it could not. “it follows that…it is only at the end of the prescribed period and in the event of the member state’s default that the directive…will be able to have the effects described in the answer to the first question. until that date the member state remains free in that field.”3 although mangold entered the fixed-term contract in june 2003 and the implementation period of the directive would not expire until december 2006, the court did allow reliance on the directive to disapply contrary national law. mangold would therefore effectively enjoy the benefits of nondiscrimination that the directive had intended before the end of the prescribed period, which does not sit comfortably with the above settled case law. the court justifies its decision by firstly, relying on the principle that during the period prescribed for the transposition into domestic law of a directive, the member states must refrain from taking any measures 2 case 148/79, pubblico ministero v ratti, [1979] ecr 1629. 3 ibid at paragraphs [43] – [44]. the denning law journal 238 “measures liable seriously to compromise” the attainment of the result prescribed by that directive, a principle first established in the case of interenvironnement wallonie. 4 but the extent to which the national law here would seriously compromise the attainment of the directive’s intended result, particularly considering it would lapse shortly after the directive would come into force, is highly doubtful. notably the court does not even refer to its own recent explanation that the above wallonie obligation does not give individuals the right to rely on the directive during the implementation period, as was the effect of its decision here. in rieser it had explained that: “…during the period [of implementation], the member states were required to refrain from taking any measures liable gravely to jeopardise the attainment of the result prescribed by directive [1999/62] but that individuals could not rely on that directive against the member states before national courts in order to have a pre-existing national rule incompatible with the directive disapplied.”5 if the obligation in wallonie cannot be relied on by individuals against the state to disapply national law as rieser seems to suggest, it is even less likely that it can be relied against a private party as the court purports to do in mangold.6 if directives cannot be relied on in proceedings between private parties, it is unclear how they could be relied on against an individual to disapply national law. it is therefore puzzling that the court’s decision seems to achieve that result. the court’s line of reasoning based on the obligation set out in wallonie is therefore problematic. even if the national legislation could be found to “seriously compromise” the directive’s result, which as explained above is itself doubtful, it would be highly unlikely that the obligation to disapply it could be enforced horizontally as against an individual. advocate general tizzano himself does not accept this possibility.7 the court, perhaps not itself convinced by the strength of the argument based on wallonie, then goes on to place particular importance on the fact that germany had an extended period of implementation coupled with an obligation to report annually to the commission “on the steps it is taking to 4 case c-129/96, inter-environnement wallonie asbl v region wallone, [1997] ecr i-7411. 5 case c-157/02, rieser internationale transporte gmbh v autobahnen, o j c 71, 20.03.2004, p 4 at para [69]. 6 see below the discussion on the lack of horizontal direct effect of directives. 7 mangold, opinion of ag tizzano, at paras [111]. the denning law journal 239 tackle age…discrimination,”8 which it interpreted to mean germany could not introduce measures contrary to the directive during the period of implementation. what remains unclear from the court’s judgment is whether the deviation from traditional ratti reasoning will be dependant on the existence of such undertakings by member states expressed in the text of the directive or will be applied more widely under a general application of the principle in inter-environnement wallonie. yet another way round horizontal direct effect? the most important and revolutionary aspect of the court’s judgment, however, relates to the fact that the disapplication of the national law at issue would effectively create obligations on individuals; employers would be prohibited from entering into unrestricted fixed-term contracts of employment with workers over the age of 52, a right clearly given by the national law which is inconsistent with the directive. it is effectively the directive that prevents such individuals from relying on their national law right and imposing obligations on them – something highly inconsistent with settled case law of the court on the lack of horizontal direct effect of directives. the court has consistently held that directives are community acts imposing obligations exclusively on member states.9 as it originally stated in marshall no 1: “with regard to the argument that a directive may not be relied upon against an individual, it must be emphasized that according to article 189 of the eec treaty [now article 249 of the ec treaty], the binding nature of a directive, which constitutes the basis for the possibility of relying on the directive before a national court, exists only in relation to ‘each member state to which it is addressed.’ it follows that a directive may not of itself impose obligations on an individual and that a provision of a directive may not be relied upon as such against an individual.”10 8 directive 2000/78, above note 1, article 18. 9 see in particular case 152/84, marshall v southampton and south-west hampshire area health authority, [1986] ecr 723, at para [48]; case c-91/92, faccini dori v recreb, [1994] ecr i-3325, at para [20]; and case c-201/02, case c-201/02, delena wells v secretary of state for transport, local government and the regions, [2004] ecr i-723, at para[56]; bernhard pfeiffer and others v deutsches rotes kreuz, at para [16]. 10 marshall, ibid note 8, at para [48]. the denning law journal 240 by disallowing the horizontal direct effect of directives – the imposing of directive – derived obligations on individuals which can be enforced in actions by other individuals – the court had to accept the unpalatable consequence that if the state failed to introduce implementing legislation, the courts had to continue applying incompatible national law in actions against individuals. in order to counteract the threat that this would pose to the effectiveness of community law, the court has over the years devised ingenious judicial mechanisms to give directives some effect in horizontal scenarios. the first way the court found to reduce the rigour of the rule of no horizontal direct effect of directives was to expand the remit of vertical direct effect – actions on directive-derived rights by individuals against the state – by adopting the widest possible definition of an emanation of the state which would include, for example, health authorities, decentralized administrative authorities and nationalized industries.11 it also created a limited case law “incidentally” permitting the use of unimplemented directives in horizontal scenarios in certain cases involving directives which did not directly impose legal obligations on individuals and usually involved the disapplication of technical standards.12 neither of these mechanisms could be of use in mangold. the directive at issue did “create…rights [and] obligations for individuals” and therefore it did “define the substantive scope of the legal rule on the basis of which the national court must decide the case before it.”13 most relevant to mangold is the third way round the lack of horizontal direct effect of directives, the concept of indirect effect: an interpretative obligation requiring national courts to read domestic law in such a way so as to conform with the provisions of directives.14 this mechanism proves particularly useful in cases where relevant national law exists which can be subject to interpretation and when the directive itself cannot be relied on, either because it is not sufficiently precise,15 the period of its implementation has not expired or where the proceedings are between private parties.16 for 11 case 152/84, marshall v southampton and south-west hampshire area health authority, [1986] ecr 723; case 103/88, fratelli constanzo v milano, [1989] ecr 1839; case c188/89, foster v british gas plc, [1990] ecr i-3313. 12 case c-194/94, cia security sa v. signalson sa and securitel sprl, [1996] ecr i-2201; case c-433/98, unilever v central food, [2000] ecr i-7535. 13 unilever, ibid note 11, at para [51]. 14 case 14/83, von colson v land nordhein-westfalen, [1984] ecr 1891, at paras [26] and [28]; case c-106/89, marleasing sa v la comercial international de alimentacion, [1990] ecr i-4135, at para [8]; casec-397-403/01, bernhard pfeiffer and others v deutsches rotes kreuz, at para [38]. 15 von colson, ibid note 13. 16 marleasing, ibid note 13. the denning law journal 241 that reason it could have been used in mangold and in fact advocate general tizzano relies on this existing doctrine to reach his conclusion that the tzbfg, though contrary to directive 2000/78, could not be disapplied but should be interpreted by the national courts in order to arrive at a result consistent with that prescribed by the directive.17 the law on how to deal with unimplemented directives seemed settled: they could not be used before their period of implementation had expired,18 they could not be relied upon in proceedings exclusively between private parties,19 though national law should be interpreted as far as possible to give effect to their desired result.20 the court of justice, however, without the encouragement of its advocate general, takes it upon itself to make new inroads and find yet another way round the lack of horizontal direct effect. the new mechanism: equal treatment as a general principle of community law the court’s second line of reasoning in justifying its departure from what appeared to be settled law and allowing reliance on provisions of a directive before its period of implementation had expired and in an action against a private party, is that the principle of non-discrimination on the grounds of age was not laid down by directive 2000/78, but is a general principle of community law.21 arguably what the court may be suggesting is that although “a directive may not of itself impose obligations on an individual,”22 it could do so as a result of the application of a general principle it embodies. it is therefore not the directive that is applied horizontally but the general principle. consequently application of this general principle cannot be conditional upon the expiry of the implementation period of the directive.23 the inspired recognition of non-discrimination on the grounds of age as a general principle of community law has thus enabled the court in one great leap to avoid both limitations it would have normally confronted in trying to apply the provisions of a directive to a case like the present. it can impose obligations found in directives on individuals in horizontal scenarios and it can do so before the implementation period has expired. 17 mangold, opinion of ag tizzano, at paras [111] –[112] and [122]. 18 ratti, above note 2. 19 pfeiffer, above note13, at para [109]. 20 ibid at paras. [110] – [119]. 21 mangold, at paras. [74] – [75]. 22 marshall, above note 8, at para [48]. 23 mangold, at para [76]. the denning law journal 242 the court’s “discovery” of a general principle of non-discrimination, thus avoiding the issues of direct effect of directives, is rather unconvincing. it purports to have identified this general principle in “the third and fourth recitals in the preamble to the directive,”24 which interestingly make no specific mention to age discrimination, “in various instruments and in the constitutional traditions common to the member states.”25 the suggestion of an existing general principle of non-discrimination would render the introduction by the treaty of amsterdam of a new legal basis on such nondiscrimination in art 13 ec puzzling if not redundant. the limits of the principle are also unclear; will other areas of discrimination mentioned in directive 2000/78 on the grounds of religion, disability and sexual orientation also reap the benefits of it? conclusion there is to date no case law of the court of justice suggesting that general principles of community law can indeed create rights and obligations in proceedings between individuals. it is submitted that the court, even in this case, is not suggesting that they do per se, though it does seem to indicate that the existence of a directive embodying such a principle, in a completely unprecedented way, somehow leads to the establishment of those obligations against individuals even in horizontal relations. what is more, it does so even before the period for its implementation has expired. in its attempt to find yet another way round the lack of horizontal direct effect of directives the court has introduced further perplexity and uncertainty in this already convoluted area of european law. 24 mangold, at para [74]. 25 ibid. yet another way round horizontal direct effect… the facts commentary effect / consequences of a directive during transposition period the new mechanism: equal treatment as a general principle of community law conclusion microsoft word 23 bs 1 gearty 2.doc 239 the denning law journal 2011 vol 23 pp 239-242 book review once upon a country. a palestinian life sari nusseibeh (with anthony david) (london: halban, 2009 (2nd edn) 534 pp isbn 9781905559145 conor gearty∗ this is the autobiography of an academic whose enthralling story is about far more than merely himself. sari nusseibeh is a philosopher who is president of al-quds university in jerusalem. his family have been in that city for well over a thousand years – there are stories here about the (female) ancestor who was a first follower of the prophet and the 7th century relative who was installed by caliph omar as the first moslem high judge of jerusalem and given custody of the key to the church of the holy sepulchre. this key has mattered a lot to the nusseibehs; give or take the occasional crusade, they have held it through the centuries, the moslem doorkeeper to the fighting christians on the site of christ’s crucifixion. nusseibeh is hilarious on this as he is on so much else in the first half of the book. dominating these early pages is his extraordinary father: lawyer; tennis player of renown; cambridge graduate; fighter for the palestinians (he was shot in the 1948 war and lost a leg); and then (during the jordanian hegemony that followed that national catastrophe) governor of jerusalem, jordan’s ministry of defence and her ambassador to the united kingdom. his funeral in 1986 ‘turned into the largest political demonstration in jerusalem since the occupation’ – the ‘crowd like water from a fire hose aimed into a maze’. by the time of his father’s death, sari nusseibeh was himself a public figure, having become heavily involved in palestinian affairs from his academic base in bir zeit after oxford and a harvard phd (where he worked on his dissertation on avicenna ‘the way an artist chisels away at a piece of marble’). married to lucy austin (who comes across in this book as dazzlingly indefatigable on both her own and her husband’s behalf) and with a young family, nusseibeh’s life is tied from adulthood to the situation his history had thrown him into. he is deeply involved in the first intifada. then he is arafat’s man in jerusalem, reluctantly trying to do what is right for an old man whose words of support and guidance are jumbled and selfcontradictory. a peace plan pops up, nusseibeh is behind it. israeli’s mossad ∗ professor of human rights law lse. book review 240 boss recants his brutality in retirement and extending an olive branch to the palestinians finds sari nusseibeh willing to grasp it. the israeli wall arrives in the middle of al-quds but nusseibeh manages to divert it, thus saving his university. all the time, he is fighting with words, talking, arguing, thinking it will be different next time round. his passion for engagement makes enemies on both sides but his spirit is undimmed. only in the preface to this second edition, recounting a recent story of the horrible humiliation of his mother by israeli airport security, does the avuncular mask briefly slip and terrible despair is glimpsed for a moment, tearing this trusting soul to shreds. the book is not only a compelling political tale but also (perhaps even mainly) it is a moving love story. nusseibeh is a man of many loves. his family, of course – a constant theme in this book. fortunately he loves himself as well – we read of the many crowds swayed by his articulacy, the power of his ideas to achieve change, his successes as a university president, his ability to stand up to arafat while others creep around him with practised servility. none of this is pompous already in love with nusseibeh, the reader greets it with delight: ‘thank god he has himself to rely on’. for the love affair with his people is a grim read. i have not read a better account of the whole tragic imbroglio that is 20th century palestine. it is all here: the arab revolt of the 1930s; the nakba (catastrophe) of 1948 when the state of palestine – designated by the united nations – was (to describe brutality with euphemistic mildness) swallowed up by its neighbours; the 1967 war and the long occupation that has followed, punctuated by occasional vicious escalations in the killing and cruel suggestions of peace which are never meant to mean anything at all. the grimness comes in manageable chunks when interspersed with family history as it is here, and the spirit of the author keeps the reader going – there is always a joke or a piece of mock selfdeprecation or an acute aside around the corner, lightening the mood after some gruesome but necessary tale. sari nusseibeh loves the israeli jews too. they are just like the palestinians, he feels, with a decent peace as necessary to them as to the people they oppress. many israeli jews agree with him – and not just the peace now brigade but the likes of the old mossad guy as well. this is why he has so often himself been subject to state attacks, sometimes physical (arrest and detention) but more often in the form of surveillance, harassment and verbal abuse. in the official israeli version of palestine sari nusseibeh – rugby, oxford, harvard, cultured, peace-loving, courageous, accommodating and literate – should not exist. much easier to see ‘the arabs’ through the prism of suicide bombs, international terrorism and hamas (which through its keen support for sheikh yassin the israelis largely created). this book is at its saddest when a bewildered nusseibeh recounts the latest example of the deliberate murder by the israelis of a palestinian leader with enough status, the denning law journal 241 intelligence and desire to make peace; ‘don’t they want peace?’, he asks, his narrative having already made clear what the answer is. the book ends with the dreadful wall, ‘the perfect crime’ which is disfiguring palestine, possibly for a hundred years. it came about because of an ‘unassuming geographer at haifa university who had made a reputation for himself as a prophet of the arab demographic time bomb’. to professor arnon sofer, electric fences were the answer. ariel sharon heard his paper at a conference and was naturally enthusiastic. sari nusseibeh has opposed the academic boycott of israel, and from this great conciliator you would expect nothing less. but in many ways this wonderful book stands as a monument to the futility of engagement with a powerful enemy which has no desire for a just peace, nor any internal or external pressure on it to work towards one. violence is wrong and doesn’t work. engagement is right and doesn’t work. people say a boycott is out of the question. what next, surrender? for the purposes of right to self-determination, how does one define people in context of kashmir 209 denning law journal 2010 vol 22 pp 209-220 case commentary addicted to motherhood – a cautionary tale re p (surrogacy: residence) [2008] 1flr 177 mary welstead∗ the events in re p (surrogacy: residence) [2008] 1flr 177, are of such complexity and involve so many people that the dramatis personae below may be necessary to help the reader understand the tangled tale of the woman whose maternal instinct can only be described as insatiable. • mrs p the 38 year old mother of five children all of whom had different fathers. • mr p her 52 year old husband and not the father of any of her children. he had 4 children, now adults from a previous relationship. • p mrs p’s 20 year old son, father’s identity uncertain but either mr md or ma. • s mrs p’s 19 year old daughter, father’s identity uncertain but possibly mr g. she lived with her 1 year old child and her boyfriend. • t mrs p’s 10 year old daughter, father’s identity unknown. • c mrs p’s 6 year old daughter born of a surrogacy arrangement with mr r. • n mrs p’s 18 month old son born of a surrogacy arrangement with mr j. • mr j the commissioning father of n, aged 47, he had a 2 year old son (exactly 1 year older than n) born as a result of a surrogacy arrangement with another woman. • mrs j mr j’s wife, aged 50. • mr r the commissioning father of c. he had a 19 year old daughter from a previous relationship. • mrs r mr r’s wife. ∗ bsc (econ) (lond), ma, phd (cantab), diped (london): visiting professor university of buckingham. case commentary 210 one can have nothing but sympathy for coleridge j, in re p, when faced with the difficult task of deciding the future of two children n and c, born by way of surrogacy agreements which went very badly wrong. the behaviour of their dysfunctional family stretches the imagination of even the most avid lover of television soap operas. the decision draws attention to the problematic, and unsatisfactory, nature of the law relating to surrogacy in england and wales, and the potentially chaotic consequences for surrogates, commissioning parents, and the children born of surrogacy arrangements. the children’s mother, mrs p, was a 38-year-old woman with an obsessive desire to procreate. by the time the law intervened in her life, she had given birth to five children all by different fathers. she satisfied this desire by both fair means and foul, although the latter tended to dominate. mrs p had a tendency to regard men as sperm donors, and was not a great believer in their ongoing role in her children’s lives. prior to engaging in child production, she had worked as a prostitute and had been convicted for activities which form an essential part of this vocation. mrs p also appeared unable to distinguish fact from fiction. after giving birth to her first two children, p and s, mrs p began to cohabit with a man, who had four adult children of his own; he was aged 52 at the time of the court hearing. they lived on state benefits. the identities of the fathers of p and s were somewhat uncertain, and they played no part in the children’s lives. in the light of mrs p’s addiction, her decision to live with the new man in her life was a rather bizarre because he was sterile after undergoing a successful vasectomy. she soon became desperate to acquire child number three, and fortuitously had read in the local newspaper about the abandonment of a newly born baby in weston-super-mare. she decided to invent a story in which she claimed that the baby was hers. to enable her to succeed in this plan, she voluntarily relinquished p and s, who were at the time aged one and two respectively, into the temporary care of the local social services department. she told the social workers that she felt unable to cope with them. a subsequent police investigation and a medical examination revealed that mrs p could not be the abandoned baby’s mother. mrs p promptly reclaimed s and p, and moved on to her next scheme to satiate her craving; in that she persuaded her cohabitee to undergo an operation to have the vasectomy reversed. sadly for her, the surgery failed to restore his fertility. undeterred in her ambition, mrs p visited a licensed fertility clinic to investigate the possibility of in vitro fertilisation (ivf) treatment by using sperm from an anonymous donor. later, mr p (as he had then become) lied to the court and said that they had gone to the clinic to offer to donate mrs p’s eggs to help infertile couples. the clinic rejected her as unsuitable for infertility treatment on both social and medical grounds. following this rejection, mrs p regularly claimed to be pregnant and was admitted to hospital the denning law journal 211 on several occasions. each time she was discovered not to be. it could not be established with any certainty whether she had ever been pregnant or whether her claims were merely vain hopes. mrs p decided that the next step in her constant search for an additional child was to achieve respectability by way of marriage to her cohabitant, and she and he duly became mr and mrs p. the newlyweds put themselves forward as potential adoptive parents. they expressed a preference for a child with down’s syndrome in spite of the fact that they were already overwhelmed by the needs of s who had crohn’s disease, cerebral venous thrombosis and suffered from psychotic episodes. in addition, p had autistic tendencies and severe behavioural difficulties. their attempt to adopt was rapidly abandoned. when p was aged 9, mrs p finally achieved her aim, and gave birth to a daughter, t. not surprisingly her father was unknown. mr and mrs p were adamant that she was their biological daughter, hardly a credible claim in the light of mr p’s sterility. they maintained that it was outrageous and scandalous for anyone to imply that mrs p could possibly have committed adultery with another man. nevertheless, mr p refused to undergo dna testing to establish his fatherhood. t was investigated for a mild form of cerebral palsy but was found to be healthy. mrs p refused to accept the diagnosis and proceeded to collect a disability allowance on behalf of t, and convinced herself and inculcated the rest of the family with the belief that the child did indeed have the condition. not only did mrs p want children, she preferred sick children; they brought attention for her, as well as an increase in state benefits. three children did not satisfy mrs p; she needed more. an organisation known as cots (childlessness overcome through surrogacy) came to her attention. she offered to put her name on its register as a prospective surrogate mother. she was put in touch with mr and mrs r who had approached cots for help; they were desperate to have a baby because their 19 year old daughter was an only child. an agreement was negotiated. mrs p would be impregnated with mr r’s sperm by means of ivf treatment in return for a fee of £850 to cover the pregnancy and birth expenses. she rapidly became pregnant but early on in the pregnancy, mr p telephoned mr r and informed him that mrs p could not complete on the deal because she had miscarried. he also told mr r that mrs p was not prepared to try again and wanted no further contact with him and his wife. mr and mrs r were devastated; they had no idea that mr p was lying, and only learned four years later that the pregnancy had resulted in the birth of a baby girl, c, who was subsequently found to have a speech disorder which required therapy. mr and mrs p failed to keep appointments arranged with a speech therapist, and, as a consequence, c began school with significant speech difficulties. case commentary 212 three years after c’s birth, mrs p began the search for her next child and after an abortive attempt to foster another down's syndrome child, she returned to cots. given that cots knew about the supposed miscarriage, mrs p had to overcome the problem of explaining c’s existence. however, over the years, she had become an expert in fabrication. she told the agency that she had become pregnant with c very soon after the miscarriage and that mr p was the father of c. her story was believed, and cots put her in touch with mr and mrs j who already had a baby born as a result of an earlier successful surrogacy arrangement made via cots. an agreement was signed and mrs p was impregnated with mr j’s sperm at a licensed fertility clinic. soon after, she telephoned mr and mrs j and explained to them that their arrangement had come to an unfortunate end because she had miscarried. her deception was almost successful but fate intervened. a few months before mrs p gave birth to mr j’s son, n, an explosive family row occurred between mrs p and s. the pair had always had a very stormy mother and daughter relationship. s had not only suffered from physical illnesses but had also had many psychological and emotional problems throughout her life. she had been depressed and suicidal (and had self-harmed). the side effects of her medication had led to several psychotic episodes. her mother had also led her to believe that she was registered blind and would ultimately be confined to a wheelchair. at the age of 19, s left home and went to live with a man whom she had met on the internet, and gave birth to a baby boy. to avenge her mother, s blew the whistle and telephoned cots to let them know that mrs p had cheated both mr r and mr j by lying about her miscarriages. by way of retaliation, mrs p reported s to social services. she maintained that s was a serious danger to her baby. she also claimed that s, at one point, had attempted to smother c, and had taken a knife to school to harm another pupil. none of this was true but that did not deter this expert in mendacity; she added to the list of s’s supposed misdemeanours the even wilder, and false, allegation that s was the surrogate mother of mr and mrs j’s first child. s’s whistle blowing led mr r to discover the existence of his 4 year-old daughter c, and mr j to discover that mrs p was about to give birth to n. mr r immediately applied to the court for orders under the children act 1989.1 he wanted c to be told about her paternity and for him to be awarded an order for contact. . at first, mr and mrs p maintained that they had continued to have a sexual relationship during the ivf treatment with mr r and that c was their child. they reluctantly changed their minds after dna tests showed otherwise. they agreed with mr r that they would eventually tell c of her true paternity and would also allow him to have an ongoing visiting relationship with her. somewhat surprisingly, given past history, mr r 1 (see ss 1, 8, 10). the denning law journal 213 believed that mr and mrs p would keep their word this time, and decided to withdraw his application for contact and the matter proceeded consensually. nonetheless, the court decided that c should be made a ward of court which would allow c to be involved in all important future decisions about her life. the court also decided that all contact should be monitored by social services. mr and mrs j took a very different stance. on learning mrs p had not miscarried, they disregarded mr and mrs p’s denial that mrs p was still pregnant; the birth of n soon put paid to that particular lie. they also ignored mr and mrs p’s claims that n was mr p’s biological child, and applied to the court for a residence order under the children act 1989 which would deliver n into their care. their application and the necessary dna testing to establish n’s paternity took some time to be resolved, and by the date of the final hearing n was 18 months old. he had bonded with mr and mrs p and his siblings. however, it was also clear that the beginnings of a relationship between mr and mrs j and n had been established. at an earlier court hearing, the judge had ordered that they should be allowed to meet with n, every three weeks for one hour. these meetings, much against mr and mrs p’s wishes, and sometimes without their cooperation, had gone on for six months and had been supervised by social services at a contact centre. in the light of n’s age, coleridge j’s task in deciding his future was not an easy one. he began his judgment by acknowledging that surrogacy arrangements are a mixed blessing. “when all goes according to plan, they are a way of remedying the agony of childlessness. however, when the arrangements do not go according to plan the result, in human and legal terms is, putting it simply, a mess.”2 he could well have added that the law relating to surrogacy (discussed below) is itself a mess. he recognised that it was both understandable and natural for a surrogate mother to change her mind about giving up the child, which had been in her womb for nine months, and to whom she had given birth. however, he found that mrs p had not merely changed her mind but had embarked on a deliberate, cruel and inhuman plan to trick two men, both desperate to have a child, into parting with their sperm. she had raised the expectations of them and their wives knowing that she and her husband had no intention other than to keep the children. the police had actually investigated the couple with a view to criminal prosecution but had decided not to proceed further. this deception was not, in itself, a sufficient reason to remove n from the only family he had ever known. the only question the 2 re p (surrogacy: residence) [2008] 1 flr 177. case commentary 214 court had to ask itself, in accordance with the children act 1989, s.1, was which parents would secure n’s best interests. in coleridge j’s words, “… the test here is a simpler one to formulate, though not necessarily to answer; namely, as between the two competing residential care regimes on offer from the two parents (with their respective spouses) and available for his upbringing, which, after considering all aspects of the two options, is the one most likely to deliver the best outcome for him over the course of his childhood and in the end be most beneficial. put very simply, in which home is he most likely to mature into a happy and balanced adult and to achieve his fullest potential as a human? the fact that both families constitute one of the child’s natural parents means that both sides start from the same position, neither side being able to claim that the blood tie should favour their claim.”3 he emphasised that his decision did not involve penalising mr and mrs p for breaking their agreement and deceiving the commissioning parents. however, he acknowledged that their devious behaviour was relevant evidence in determining whether they or mr and mrs j would make suitable parents for n and should be balanced alongside all the other aspects of their conduct. he listened carefully to the statements from consultant paediatricians, social workers as well as lawyers about mr and mrs p’s parenting skills which were surprisingly ambivalent. several of them were quite positive. one health visitor had expressed shock that there was any problem with this ‘lovely’ family who had lots of toys in the house and who had a loving relationship with n. other experts drew attention to the devastation which would be suffered by n in the immediate future if he were to go to live with mr and mrs j, 200 miles away from mr and mrs p, the only parents he had ever known. how would they be able to continue to remain in contact with him at such a distance? it would be difficult, impractical and unaffordable for a couple living on welfare benefits to travel to visit him. to disturb the strong familial bonds, which n had developed over 18 months with his parents and siblings, was not to be undertaken lightly. why not leave n with mr and mrs p? after all they had agreed to let mr and mrs j see him on a regular basis. to resolve the appalling dilemma which faced him, the judge centred his decision on the need for honesty and trustworthiness in parents. the opposing characteristics of lies and unreliability, which mr and mrs p had demonstrated in abundance, were hardly appropriate skills for parenting. they lied about everything; their distortions of the truth were unsurpassable. not only had 3 re p (surrogacy: residence) [2008] 1 flr 177. the denning law journal 215 they deceived the commissioning parents, they had lied to their own children about their medical problems, they had lied about their eldest daughter’s treatment of her baby, they had lied about the identities of the fathers of their children, and they had lied about their reasons for visiting an ivf clinic. indeed, the only matter they did not lie about was the possibility that mrs p might decide to continue to satisfy her emotionally dysfunctional addiction and have another baby. she actually admitted to the judge that this was a possibility. according to coleridge j, mr and mrs p, “… were often incapable of distinguishing fact from fiction and that they did indeed take grains of truth and amplify and distort them into unrecognisable factual conclusions. in the end i think they are prepared to make it up as they go along … on occasions they were hardly conscious of the extent to which they were fabricating.”4 the judge was convinced that mr and mrs p, in spite of their claims to be willing about ongoing contact, were likely to be grudging and would very likely sabotage it. he saw no hope of a change in mrs p in the near future; her problems were deep rooted and stemmed from her early life experiences which only extensive psychotherapy could possibly resolve. mr and mrs j, on the other hand, he considered to be quiet, intelligent, good, decent and honest people. he was a middle-income architect, and she had given up her professional career as an urban planner to become a full-time mother. they accepted ongoing contact between n and mr and mrs p and his siblings as crucially important to his balanced development. they felt that n would have a need to understand what had happened and that they would seek counselling to help them all to cope with it. coleridge j’s decision, although undoubtedly correct, showed a certain lack of insight into the effect of separation on an 18-month-old child from the only parents and family he had ever known. he suggested that although a move would cause n short-term distress, probably for a period of about two months, he should be placed immediately with mr and mrs j on a long-term basis in order that his best interests be met in the future. n would be made a ward of court to allow his development to be monitored. the judge’s words show an amazing optimism in the light of all that had gone before “if all sides put n’s best interests above their own and move on, preferably with the help of a child psychologist there is every reason to be cautiously optimistic that n will be able to benefit fully from input in his life from both his biological families.”5 4 re p (surrogacy: residence) [2008] 1 flr 177. 5 re p (surrogacy: residence) [2008] 1 flr 177. case commentary 216 an immediate appeal against coleridge j’s decision was made by mr and mrs p to the court of appeal; it was rejected. the decision in re p draws attention yet again to the problematic nature of the law relating to surrogacy in england and wales.6 it is law which is half-hearted and piecemeal; it gives conflicting messages, inter alia, engage in surrogacy at your peril, but the law will not protect you or your child if arrangements go wrong. there is ample evidence for this view. first, surrogacy arrangements are legal but unenforceable under the surrogacy arrangements act 1985 s. s.1a. if women like mrs p renege on the agreement, the commissioning parents are in a difficult position. the surrogate mother, like all birth mothers, automatically acquires parental rights and obligations, along with her husband, or civil partner, if there is one, and who has agreed to the surrogacy arrangement. these rights and obligation include the right to have the child reside with her and her husband, or civil partner, and make all the decisions about the child’s everyday care. the commissioning parent can only obtain parental rights and obligations by applying to the court for an order under the children act 1986, or by adoption of the child. this means that the majority of surrogate mothers who wish to keep their children will normally be allowed to do. by the time any dispute comes to court, most children will have reached an age where bonding has taken place and few judges will view it as in a child’s best interest to destroy that bond. the court in re p was exceptional in being prepared to take that risk. if the commissioning parents renege on the agreement, the surrogate mother and her husband, or civil partner, will find themselves responsible for the child.7 second, under s.2 of the surrogacy arrangements act 1985, no one may engage in the negotiation of surrogacy arrangements for a fee. the human fertilisation and embryology act 2008, s.59 has amended this section in a fairly convoluted manner and now allows organisations which provide surrogacy services on a notforprofit basis to receive payment for providing some of those services. they may make a reasonable charge, for example, to enable surrogate mothers and commissioning parents/ parties to meet each other to discuss the possibility of a surrogacy arrangement between them. they may also charge for compiling information about surrogacy and establishing and keeping lists of people willing to be a surrogate mother, or commission such a person. they may not, however charge for offering to negotiate a surrogacy arrangement or for taking part in negotiations about a surrogacy arrangement. they may, however, undertake them legally if they do not charge for them. they may now also advertise those activities for which 6 see also re x and y (foreign surrogacy) [2009] 1 flr 733. 7 re p (surrogacy: residence) [2008] 1 flr 177. the denning law journal 217 they are allowed to charge. so, they may advertise that they hold lists of surrogate mothers and commissioning parents and that it may bring them together for discussion. but it will remain illegal for anyone to advertise that they seek a surrogate mother or wish to be a surrogate mother. unlike fertility clinics, which are regulated by the human fertilisation and embryology authority and governed by the provisions of the hfea 1990, or adoption agencies which must be registered, there have been no further attempts to monitor these facilitating surrogacy organisations. they remain selfregulating and most make serious efforts to do this well. coleridge j’s final comments in re p were reserved for these organisations which play a major role in surrogacy. he suggested, with a certain lack of force, that some surrogate mothers might have psychological difficulties relating to their own unacknowledged and unmet needs. background checks on all potential surrogates and commissioning parents should be a priority for surrogacy organisations. perhaps, he should have gone further and suggested that it is only by well thought out regulation that there will be an end to the risk of the type of chaos and emotional pain which occurred in re p.8 third, surrogate mothers may not receive any payments from the commissioning parents other than for costs associated with pregnancy and birth expenses yet the courts retrospectively authorise payments which are clearly unreasonable (see re x and y (foreign surrogacy).9 fourth, the hfea 1990 (as amended) whilst not actually regulating surrogacy makes provision for parental orders under s.30. these orders transfer all the parental rights and obligations to the commissioning parent or couple provided the application is made to the court within six months of the child’s birth. at least one of the commissioning couple must have provided gametes used to create the child. the surrogate mother, and her husband, or civil partner, if they have agreed to the surrogacy must consent to the making of any parental order. the surrogate mother may not give her consent until six weeks after the birth of the child. where there is agreement but the other conditions are not met, the commissioning parent/s will have no recourse other than to apply for an order under the children act 1989 or apply to adopt the child. since 1985, when surrogacy first came within the ambit of the law, it has developed as an alternative to adoption or as an alternative form of infertility treatment. more recently, it has taken on an international dimension as commissioning parents seek surrogate mothers abroad. the law has failed to address these developments and rather, concentrated all its attention on other forms of infertility treatment. 8 re p (surrogacy: residence) [2008] 1 flr 177. 9 re x and y (foreign surrogacy) [2009] 1 flr 733. case commentary 218 natalie gamble and louisa ghevaert who are lawyers specialising in fertility law have stated that: “we need a better and more planned approach to surrogacy. of course, there are difficult and sensitive issues to be handled in creating new law. surrogacy arrangements are among the most ethically and humanly complex in assisted reproduction, with three or even four adults involved throughout the process of conception, pregnancy and birth, and possibly third party gamete donors as well. the respective interests, protection and independence from exploitation of all these adults and, most importantly, the resulting child, need to be adequately balanced and protected by the law.”10 i can only concur.not illegal in the uk but it is restricted b 10 http://www.bionews.org.uk/bionews http://www.bionews.org.uk/ case commentary for the purposes of right to self-determination, how does one define people in context of kashmir the denning law journal 67 the denning law journal 2009 vol 21 pp 67-92 the evidence of anonymous witnesses in criminal courts: now and into the future alan george ward∗ abstract anonymous witness evidence, the use of which had quietly expanded in the early part of the twenty-first century in criminal courts in england and wales, was significantly curtailed by the house of lords in the case of r v davis.1 little over a month later the government had enacted legislation to minimise the impact of their lordships’ ruling, yet the long-term future of this area of the criminal law of evidence remains undetermined. this article seeks to assess what impact the criminal evidence (witness anonymity) act 2008 has had on the right to a fair trial in england and wales and, subsequently, to weigh up the options for long-term reform in this area of the law. it will be submitted that the stated policy aim of the government, the protection of witnesses, can be achieved for the long-term without impeding or undermining the absolute right of the defendant to a fair trial. introduction lord bingham has dated the debate surrounding anonymous accusation back to ancient rome, the inquisition and star chamber in tudor england.2 in the 1970s a commission under lord diplock reached the same conclusion: that concealing witnesses’ identities, and thus removing the right of the accused to confront his accusers, was not appropriate to combat even the thensevere danger of paramilitary intimidation.3 yet for all this long history, thirty-three days in the summer of 2008 will be remembered as being pivotal in the history of the rights of the accused and, more fundamentally, the right a fair trial in england and wales. this article is ∗ student member of the honourable society of lincoln’s inn. 1 r v davis [2008] 1 ac 1128. 2 ibid, at para [5]. 3 “report of the commission to consider legal procedures to deal with terrorist activities in northern ireland” hmso, 1972, cmnd. 5185. the evidence of anonymous witnesses in criminal courts 68 not exclusively concerned with rehearsing the details of this short period but instead seeks to look ahead and assess what is next for the rights of defendants in our criminal justice system, which previously stood strong through the difficulties of previous generations. on june 18th 2008 the appellate committee of the house of lords gave judgment in the case of r v davis. the appellant iain davis had been convicted of a double murder at an all-night party on new years eve 2002. at trial davis was convicted following testimony of three witnesses who alone were able to identify him as the gunman. owing to their fear of reprisals following any testimony these critical prosecution witnesses were granted a host of special measures to conceal their identity from the defendant and his legal team. the three witnesses were concealed from sight of the defendant by screens and had their voices electronically distorted. their names and other potentially identifying details were concealed and the defendant’s legal representatives were not able to ask the witnesses any questions which might have led to the revelation of their identities. the witnesses against davis were anonymous and their testimony decisive. those who gave the decisive testimony against him, davis alleged, did so with the desire to see him convicted, yet defence counsel were not able to explore this allegation.4 as a result of the protection afforded to his accusers davis was not able to conduct his defence fully and at trial he was convicted of double murder. an appeal against conviction was lodged. though the name of davis is and will remain most closely associated with the debate surrounding anonymity of witnesses, his appeal to the court of appeal, and ultimately to the house of lords, was heard alongside a similar case of arguably greater notoriety. in march 2005 the murder convictions of marcus ellis and others for shooting dead leticia shakespeare and charlene ellis in a gang-related murder in birmingham were handed down following a trial in which the evidence of one anonymous witness for the crown, “mark brown,” proved contentious but ultimately decisive. “mark brown” had his name and true identity withheld from the defence and jury, gave evidence behind a screen and had his true voice distorted and played to the court on a time delay. brown was known to be a convicted criminal and self-confessed rival gang member. yet he remained otherwise wholly anonymous. as nigel rumfitt qc stated in his closing speech for the defence, “as far as we are aware, no witness has ever been allowed to give evidence in the way brown was in the entire history of our common law going back the best part of 1,000 4 iain davis alleged that his anonymous accusers included his ex-girlfriend and her new boyfriend. any defence cross-examination as to the anonymous witnesses’ motives, or which would lead to their identity being revealed, were strictly proscribed at trial. the denning law journal 69 years.”5 media reaction to this verdict recognised that the fundamental reliance placed by the crown on anonymous testimony had marked a “legal precedent.”6 on appeal to the court of appeal in 2006 the special measures granted at the trials of davis and ellis were deemed to have had basis at common law and were adjudged to have been applied in a manner consistent with the right to a fair trial, guaranteed by art 6 of the european convention on human rights.7 subsequently the trials of iain davis and marcus ellis were deemed to have been fair and their respective convictions for murder were upheld. leave to appeal was initially refused by the court of appeal, before being granted by their lordships in the house of lords on october 10th 2006. on june 18th 2008 the house of lords reached the opposite conclusion to that of the court of appeal and in allowing the appeal of davis and others, handed down a judgment that was to capture attention in government and parliament and bring the law of criminal evidence to the front pages of the tabloid press. the house of lords unanimously ruled in r v davis8 that a conviction, based solely or to a decisive extent on the testimony of anonymous witnesses, was unsafe, and that such a means of conviction was incompatible with art 6 (3) (d) of the european convention on human rights.9 r v davis: the european dimension lord mance, in his speech in davis, examined in some detail the jurisprudence of the european court of human rights on matters of and relating to the human rights compatibility of state reliance on anonymous testimony in criminal proceedings with the defendant’s absolute right to a fair trial. of particular importance was the case of doorson v the netherlands, a case which lord mance read and applied in a manner distinct to that of the court of appeal previously.10 in the court of appeal it was held that the “essential question” in doorson had been “whether the proceedings were unfair.” lord judge, in the court of appeal, stated: “notwithstanding the 5 “murder trial sets legal precedent” bbc news online: http://news.bbc.co.uk/1/hi/england/west_midlands/4357759.stm. 6 ibid. 7 r v davis [2006] 4 all er 648. 8 r v davis [2008] 1 ac 1128 . 9 article 6(3)(d) “the european convention for the protection of human rights and fundamental freedoms”: the accused has the minimum right “to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”. 10 doorson v the netherlands (1996) 22 ehrr 330. the evidence of anonymous witnesses in criminal courts 70 significance to the conviction of the evidence of two anonymous witnesses, in doorson the conclusion was that [proceedings] were not [unfair].”11 the court of appeal interpreted the case of doorson as authority for the proposition that the “essential question” for the strasbourg court in determining whether the right to a fair trial was violated was whether proceedings were rendered “unfair.” doorson was also treated by the court of appeal as a precedent, showing the strasbourg court unwilling to deem a trial where anonymous testimony was used to secure conviction as unfair or amounting to a breach of the accused’s art 6 right. lord mance in the house of lords, however, appears to have read the case of doorson differently. firstly, the matter of whether “proceedings as a whole…were fair” is described in lord mance’s speech not as “the essential question” but instead as merely “a starting point.”12 secondly, lord mance attaches little weight to the outcome of the case of doorson, treating it not as an example of the european court of human rights finding anonymous evidence as being generally acceptable, but as “a conclusion difficult to follow on the facts.”13 thirdly, lord mance highlights the proposition of european human rights law, found in doorson, which was to determine the appeal of davis ultimately successful. his lordship quotes the judgment of the strasbourg court as follows: “finally, it should be recalled that, even where ‘counterbalancing’ procedures are found to compensate sufficiently for the handicaps under which the defence labours, a conviction should not be based either solely or to a decisive extent on anonymous statements.”14 although the jurisprudence of the european court does not proscribe the use of anonymous testimony entirely, emphasis is placed on the provision of “counterbalancing measures” to ensure a degree of fairness, compatible with the absolute art 6 right. such measures were, it seems, absent in the case of davis. more particularly, lord mance highlights the “sole and decisive evidence” principle as the appropriate test which the strasbourg court applies in cases concerning anonymous witness testimony in order to determine whether such trials are fair, within the meaning of art6. accordingly, if anonymous evidence, which handicapped the defendant’s art 6(3)(d) right to examine his accusers, was the “sole and decisive” reason for conviction then the european court of human rights would most likely deduced, find a violation of the convention. lord mance concluded that the strasbourg court 11 above n 7, sir igor judge p at para [38]. 12 above n 8, lord mance at para [75]. 13 ibid, at para [77]. 14 ibid, at para [80]. lord mance citing doorson v the netherlands at para [76]. the denning law journal 71 would not have found the trial of davis to have been fair; the murder conviction had been based to a decisive extent on the evidence of davis’s anonymous accusers, evidence which could not be properly tested by the defendant or counterbalanced by other measures. r v davis: the common law dimension the house of lords decision in r v davis was unanimous on the matter of breach of the appellant’s art 6 rights, but closer analysis of their lordships’ individual speeches reveals a multiplicity of views on the status of witness anonymity at common law. whereas the court of appeal decisively stated that there existed “clear jurisdiction at common law to admit incriminating evidence given against the defendant by anonymous witnesses” their lordships did not attempt to formulate any such conclusion on the common law position.15 there appears to be a general acceptance by their lordships of the existence of a common law power to grant witnesses anonymity, but with the qualification that any such power is limited to operation within the parameters established in r v murphy (which are discussed in detail below).16 only lord roger of earlsferry approaches a position of denial of any common law power to grant witness anonymity, stating, “the appellant’s trial did not meet that standards required by art 6 of the european convention. in the circumstances it is unnecessary to decide whether the decision in r v murphy is consistent with the common law.”17 as lord mance concluded, in light of the incompatibility of the degree of anonymity granted to crown witnesses at the trial of davis with art 6, any common law power for courts to grant such anonymity had been manifestly exceeded. their lordships declined to extend an uncertain common law power to the point where the defendant’s right to test the evidence against him was prejudiced, and extended an invitation to parliament to clarify the law through statute. parliament ultimately was to accept their lordship’s invitation to abolish the common law rules regarding anonymity and replace them with a statutory scheme, in the law reform (witness anonymity) act 2008.18 15 d howarth “the criminal evidence (witness anonymity) act 2008” archbold news (2008) pp 6-9. 16 r v murphy [1990] ni 306, ca ni. 17 above note 1, at para [44]. 18 s 1(2) of the 2008 act states “the common law rules relating to the power of a court to make an order for securing the identity of a witness in criminal proceedings is withheld from the defendant are abolished.” the evidence of anonymous witnesses in criminal courts 72 the effects of their lordships’ judgment in davis were quickly and widely felt. on june 24th 2008 his honour judge paget at the central criminal court suspended a high-profile murder trial, involving anonymous testimony by prosecution witnesses, near to the close of the crown’s case. further such trial collapses were feared and the appellate committee of the house of lords was roundly blamed. “chaos as the law lords ruin trials” was the verdict of one mass circulation tabloid newspaper.19 with the press stirring fears that “terrorists, murderers and violent criminals will escape justice”20 the government pledged emergency legislation, and by july 21st 2008, only thirty-three days after the decision in r v davis the criminal evidence (witness anonymity) act 2008 was on the statute books and in force. this act was only enacted as a short-term measure. those who argued for a “sunset clause” as the bill passed through parliament were successful and the long-term future of anonymous testimony in criminal courts in england and wales remains uncertain. 21 this article seeks to look into the future and assess the extent to which the evidence of anonymous witnesses is desirable in the courts of england and wales and how such evidence may be fairly balanced with the fundamental right of the accused to test the evidence against him. it will be argued that witness anonymity orders, as per the 2008 act, must be a measure of last resort in the criminal courts, and even when used must be subject to rigorous independent scrutiny. whereas the witness who has absolutely no prior knowledge of the defendant, his associates or the context of the alleged offence may, exceptionally, prove suitable for anonymity those with a propensity or motive to lie, or a grudge to settle, such as “michael brown”, must be denied any such measures as would handicap the conduct of the defence. this approach, it will be argued, will enable our system of criminal justice not just to pursue an approach “consistent with” the rights of the accused, but to place such rights at the forefront of our endeavours to achieve justice openly and fairly, through the evidence-based conviction of the guilty. “creeping emasculation”: the road to r v davis as was noted above, the use of anonymous witnesses was deemed a step too far in the 1970s, even in the face of paramilitary violence in northern ireland. it is therefore worth briefly noting how the use of such testimony to secure conviction in the criminal courts of england and wales reached the 19 “chaos as the law lords ruin trials” the sun (june 25th 2008). 20 “murders will escape justice without new laws to end ‘secret witness’ ban, warns straw” the daily mail (june 25th 2008). 21 “sunset clause” s 14 criminal evidence (witness anonymity act) 2008. the denning law journal 73 point by summer 2008 when their lordships were forced to declare “the creeping emasculation of the common law principle must not only be halted but reversed.”22 the right of the accused to come face to face with his accuser was arguably first amended by the criminal justice act 1988, s 32 of which permitted the giving of evidence via video link.23 more recently sections 1635 of the youth justice and criminal evidence act 1999 saw the introduction of various “special measures” to further keep vulnerable witnesses from having to face a defendant.24 however, these modifications to the strict right of confrontation do not allow for the concealment of identities. the ethos of these changes was the protection of the vulnerable victim. the measures inflict minimal, if any, prejudice on the defendant. they can not properly be deemed part of the “creeping emasculation” of the common law right of confrontation which their lordships in davis highlighted. it was through case law that the “creeping emasculation” truly began, and it is through case law that the defendant’s common law right to confrontation can be seen to have been gradually eroded.25 the 1990 case of r v murphy saw anonymity being granted to television cameramen who had photographed a murder.26 their evidence did not implicate the defendant and their credibility as witnesses was not in issue. the degree of anonymity granted at trial was slight; the photographers gave testimony behind a screen. they testified merely to confirm that they took the relevant photographs. as was discussed above, their lordships in the house of lords declined to firmly conclude whether the case of murphy was rightly decided, and by extension, whether a common law power to grant witnesses anonymity flowed from this case. what can be concluded, however, is that murphy may be taken to represents the clearest starting point for the admissibility of anonymous testimony in criminal trials, judicial understanding of which was to culminate in the vast array of special, identity-concealing measures granted to the pseudonym-witness “michael brown” in 2005, which proved such a severe handicap to the conduct of marcus ellis’s defence. 22 lord brown of eaton-under-heywood in davis at para [66], the “common law principle” being the right of the defendant to face and challenge his accusers. 23 s 55 criminal justice act 1991 further advanced this innovation. 24 witnesses eligible for special measures as a result of being “in fear or distress”, as per s 17(1) youth justice and criminal evidence act are not entitled to the “special measures” in ss 29 and 30 of the act, reinforcing the proposition that such measures are aimed at improving the quality of testimony from a truly vulnerable victim. 25 the outline of important cases here provided is for background purposes only. a more detailed examination of the authorities, and the gradual evolution of the common law stance on the right to confrontation, is provided by lord bingham in his speech in davis. 26 discussed in greater detail in davis at para [12]. the evidence of anonymous witnesses in criminal courts 74 following the case of murphy judicial acceptance of the ability to grant witness anonymity continued with the case of r v taylor & crab27 at the central criminal court in 1994. at the murder trial of taylor and crab a witness to the alleged murder, known as “miss a”, was granted anonymity as she gave her testimony. crucially, however, the defendants saw “miss a” on cctv, in case she was known or recognisable to them. the 1993 case of r v watford magistrates court ex parte lenman28 was cited by the court of appeal in their consideration of the first appeal of davis as evidence of a “clear jurisdiction at common law to admit incriminating evidence given against the defendant by anonymous witnesses.”29 the watford case concerned a number of youths accused of violent disorder; witnesses were only willing to give evidence under pseudonyms, behind screens with their voices concealed, a set of special measures which magistrates had acquiesced with for the purposes of committal proceedings. in upholding the special measures regime, the magistrates had approved bedlam lj went so far as to describe the power of courts to withhold witnesses’ identities as “well established.”30 as late as 2003, the protection afforded to the accused, though the common law right of confrontation, was alive and well. in the judgment of hughes j in r v aston bola anonymity for a witness in a drug-related murder case was refused.31 lord bingham in davis highlighted this judgment as “a model of fairness”.32 the case of aston bola, however, represents something of a watershed. it was only in certain criminal trials after 2003 that the granting of anonymity by crown court judges to critical, incriminatory prosecution witnesses became problematic. such trials included those of iain davis at the central criminal court in may 2004 and that of marcus ellis in early 2005. from 1990, the year that saw the anonymous testimony of the photographers of a murder deemed acceptable, to 2005, when the heavily disguised “michael brown” took to the witness box, the “creeping emasculation” of the common law right of confrontation is clearly visible. the house of lords was to find in 2008 that the expanding utilisation of anonymity for witnesses giving the “sole or decisive testimony” against a defendant represented an unacceptable violation of the common law right of 27 r v taylor & crab, reported in the times (17th august 1994) ca. 28 r v watford magistrates court ex p lenman 1993 crim lr 388, cited in r v davis [2006] at para [27]. the case is considered by lord bingham in the house of lords, at para [13] of davis [2008]. 29 r v watford magistrates court ex p lenman [1993] crim lr 388. 30 ibid. 31 r v bola (unreported) 18 june 2003. 32 r v davis [2008]. lord bingham at para [34]. the denning law journal 75 the accused to confront his accusers, as well as being a measure incompatible with art 6(3)(d) of the european convention on human rights. their lordships handed down their ruling in davis on june 18th 2008. by july 21st, however, the government had reacted. the critical questions this article will now turn to address are: firstly, whether the criminal evidence (witness anonymity) act 2008 creates a satisfactory safeguard of the rights of the accused and his right to a fair trial and, secondly, what statutory measures may follow the 2008 act to better safeguard and advance these fundamental human rights, upon which our system of criminal justice is based. the “witness anonymity” act 2008: a satisfactory safeguard of the rights of the accused? the new act was widely feared following the decision in davis. unfavourable comparisons were drawn early on with other legislation passed through parliament on such a short timescale.33 “if government acts in haste, it may well repent at leisure” was typical of the concern voiced by commentators on all sides. 34 in the furore that followed their lordships’ decision in davis the government’s wish for swift legislation was clear. the first set of explanatory notes to the witness anonymity bill, issued on july 3rd 2008, stated that the intended purpose of the bill was to “restore the law to, broadly, the position it was believed to be prior to davis.”35 the government, it seems, was content with the so-called “creeping emasculation” of the defendant’s right of confrontation; convictions in high-profile shooting cases are, it must be remembered, popular with the voting public. in haste, it seems the government’s prime concern was to prevent the collapse of ongoing cases involving anonymous testimony, even if this meant sacrificing the concerns for the rights of the accused which their lordships in davis had highlighted. yet the legislation that emerged on the statute books on july 21st 2008 seems to acknowledge the concerns for the right to a fair trial that their lordships had raised. the witness anonymity act cannot be viewed as a wholesale departure from the european convention, or even as a reversal of their lordships’ decision in davis. intriguingly, it is almost certain that davis would have been decided the same way under the principles of the new 33 liberty, at para [18] of their briefing on the criminal evidence (witness anonymity) bill 2008 concluded that “the history of rushed legislation is not a good one” drawing attention in particular to the dangerous dogs act 1991 and part 4 of the anti-terrorism, crime and security act 2001. 34 i kelcey “panic and rough justice” law society gazette july 17th 2008. 35 “explanatory notes” july 3rd 2008 para [50]. the evidence of anonymous witnesses in criminal courts 76 legislation.36 indeed, it is clear that the government has strived to incorporate into the witness anonymity act measures and the safeguards to ensure compatibility with the european convention on human rights. the parliamentary joint committee on human rights reached the same determination as the bill passed through parliament.37 as was noted above section 1(2) of the witness anonymity act abolished the common law rules “relating to the power of a court to make an order for securing the identity of a witness in criminal proceedings is withheld from a defendant.”38 the 2008 act is thus now the sole authority under which a criminal court may grant a witness special measures to conceal identity. section 3(2) of the 2008 act details the measures a criminal court may grant a witness in order to achieve this aim; witnesses remain able to give evidence under pseudonyms, behind screens and with their voices electronically modulated or distorted.39 section 2(2(a) of the act allows prosecutors to withhold the identity of anonymous witnesses from the defence, by way of excluding any potentially-identifying detail from normal prosecution disclosure. this provision of the 2008 act, although necessary to achieve the stated aim of concealing identities fully, constitutes one of the principal challenges to the right of the accused to challenge his accusers. scrutiny of crown witnesses, on the critical issues of motive and credibility, is largely left to prosecutors, a difficulty discussed at greater length below. further detrimental to the common law right of confrontation is section 3(2)(c), which proscribes “questions of any specified description that might lead to the identification of the witness.” this provision puts a clear bar on potentially probative lines of cross-examination, which may often be vital to the conduct of a defendant’s case. under the 2008 act, then, an anonymous witness, scrutinised solely by the crown, may avoid difficult questions from defence counsel with impunity. section 3 of the witness anonymity act deals with the manner in which applications for anonymity orders must be sought. even in this initial procedure there appears to exist an inherent (although it is submitted not a serious) inequality between prosecution and defence applications. section 3(2) allows the court to rule that the prosecution may conceal the identity of a 36 a conclusion widely expressed among commentors following the passage of the 2008 act: see liberty briefing on the criminal evidence (witness anonymity) bill 2008 para [14]. 37 jchr: legislative scrutiny: criminal evidence (witness anonymity) bill. twentysixth report of session 2007 – 2008. july 15th 2008. 38 criminal evidence (witness anonymity) act 2008, s 1(2). 39 criminal evidence (witness anonymity) act 2008, s 3(2)(b) allows for pseudonyms, 3(2)(d) allows for screening and s (3)(2)(e) for voice modulation “to any specified extent.” the denning law journal 77 potential anonymous witness from not only the defence, but even from the court. in cases where there is a sole defendant, however, section 3(3) forces the defence to disclose the identity of any potential anonymous witnesses for the defence to the prosecution. in a case where a defendant alleges police misconduct or intimidation this inequality, allowing the prosecution to know the identity of all apparently anonymous defence witnesses, may cause such a defendant, or any potentially-key defence witnesses, some difficulty.40 criminal courts may only make a witness anonymity order if the three “conditions” set out section 4 of the 2008 act are satisfied. condition a provides that an anonymity order must be “necessary” to protect the safety of a witness or other person, or to prevent serious damage to property. alternatively, condition a can be satisfied if an order is “necessary…in order to prevent any real harm to the public interest.”41 condition b states that any anonymity order must be “consistent with” the defendant’s right to a fair trial.42 finally, condition c provides that an anonymity order must be “necessary…in the interests of justice.”43 an order is necessary in the interests of justice under section 4(5) of the act if (a) it is important that the witness should testify and (b) the witness would not testify if the order were not made. significantly, section 5 of the act states that a court must have regards to five “relevant considerations”, listed at section 5(2), before granting a witness anonymity order in criminal proceedings.44 these “considerations” appear to deliberately address concerns which their lordships expressed in davis: (a) the general right of a defendant to know the identity of witnesses, (b) the extent to which credibility of a witness is likely to be in issue, (c) whether evidence given by an anonymous witness is likely to be the “sole or decisive” factor in a finding of guilt, (d) whether the defendant is believed to have a tendency to be dishonest or a motive to give false testimony and (e) whether any other method of protecting the witness’s identity would be practicable or more appropriate at trial. furthermore, s 7 of the act provides that a direction must be given to the jury at the close of a trial where anonymous evidence has been given to ensure the defendant is not prejudiced in the minds of jurors. such a measure is a bare minimum requirement; anecdotal evidence reveals the extent to which jurors are influenced by non-evidentiary matters at trial. it is particularly easy to foresee a jury determining, even subconsciously, that a defendant must be a dangerous individual if they are capable of instilling such fear in a witness so 40 above n 15, pp 6-9. 41 criminal evidence (witness anonymity) act 2008, s 4(3). 42 ibid, s 4(4). 43 ibid, s 4(5). 44 ibid, s 5(2). the evidence of anonymous witnesses in criminal courts 78 as the court deems their identity must be concealed for their safety.45 surely a jury will then determine, albeit subconsciously, that such a “dangerous individual” must be removed from society for the protection of the general public, whether they happen to be guilty of the particular offence(s) charged or not. the mandatory jury direction will, to some degree, alleviate this risk of unfairness in the criminal trial; yet mitigating the risk of unfairness in a criminal trial is surely insufficient. the right to a fair trial, under art 6 of the european convention on human rights, is an absolute one. the question of whether a jury direction is sufficient to ensure a fair trial for the accused is just one of many such concerns which may reasonably be advanced by those concerned with the future of a fair and just criminal process in england and wales. as was noted above, s 5(2) seeks to act as a “safety valve” to ensure judges consider the critical human rights issues that arise from the use of anonymous witnesses before granting any order to permit their use at trial. yet it is questionable whether the matters listed in this provision should be presented to trial judges with merely the status of “relevant considerations.” some of the considerations, such as the general right of confrontation of one’s accusers and the “sole and decisive evidence” test have a status of their own in common law and the jurisprudence of the european court of human rights.46 it can be argued that a judge in determining a witness anonymity application should more than merely consider the factors in s 5(2); for the act to be truly compatible with human rights the judge should be satisfied to a very high standard that a fair trial would follow from the use of any anonymous witness evidence. if the concerns of their lordships are taken as largely reflected and nullified through the “relevant considerations” there is one critical concern, raised by lord bingham in davis, which the act fails to account for. lord bingham states that: “the fairness of a trial should not largely depend on the diligent performance of their duties by the prosecuting authorities”, yet the act strives to achieve scrutiny of potential witnesses solely through the disclosure obligations of the crown.47 section 5(2)(c) of the act requires the presiding judge to consider the credibility of a potential candidate for witness anonymity in terms of any tendency to be untruthful and any motive they may have to give false testimony against the particular defendant to face trial. yet 45 liberty briefing on the criminal evidence (witness anonymity) bill 2008, para [16]. 46 above n 10, at para [3(k)] in which it was stated “even when the counterbalancing procedures did compensate sufficiently for the handicaps under which the defence laboured, a conviction should not be based to a decisive extent on anonymous statements.” 47 lord bingham in davis at para [31]. the denning law journal 79 all the documentation provided to the court for the undertaking of this consideration is provided by the prosecution. injustice will occur following such a course. the attorney general’s guidelines which followed the 2008 act state that “the role of the prosecutor as an independent and impartial minister of justice is of paramount importance”,48 yet this assurance represents little by the way of safeguard for a defendant. one ambitious prosecutor, keen to obtain a high profile conviction, or one negligent police officer would be all it would take for the fairness of the scrutiny regime, as presently enacted, to evaporate, taking the fairness of the trial with it. the sponsors of the 2008 act would dispute the suggestion that any professional associated with the prosecuting authorities would act with anything other than “scrupulous fairness.”49 however, history suggests that there is at least a risk of prosecutors failing to disclose everything which they reasonably could to the defence. the trial of kieron fallon for alleged “race fixing” collapsed recently when prosecutors failed to disclose expert reports, which undermined to their case against the jockey.50 the issue of inadequate scrutiny of prosecution witnesses exposes the biggest shortcoming of the witness anonymity act. the present inadequacy of the scrutiny regime lends itself to one inevitable solution, which the act neglects to provide for; the use of independent counsel to test the proposed prosecution evidence for credibility, veracity and admissibility within the parameters of human rights law. the new zealand evidence act 2006 provides for an express statutory discretion for a trial judge to appoint of independent counsel when the court is faced with an application for a witness anonymity order. the full implications and benefits of such an approach are examined in the final section of this article. the present regime in england and wales, by way of contrast, does more than omit to provide for such a safeguard and assurance of adequate scrutiny. sources tangential to the act go so far as to dismiss such an approach to witness anonymity applications. the attorney general’s guidelines on witness anonymity procedure note that the attorney general does have the power to appoint such special counsel, despite no mention being made of such a procedure in the act.51 however, the guidelines fall back on the ratio of the house of lords case of r v h & c,52 and deem the appointment of 48 attorney general’s guidelines: the prosecutor’s role in applications for witness anonymity orders. criminal evidence (witness anonymity act) 2008 para [b4]. 49 ibid, para [b3]. 50 kieron fallon trial – r v lynch & others (2007) unreported. the times reported the collapse of the “race fixing trial” at the central criminal court on december 8th 2007: http://www.timesonline.co.uk/tol/sport/racing/article3019158.ece. 51 above n 49, para [d2]. 52 r v h, r v c [2004] 2 ac 134. http://www.timesonline.co.uk/tol/sport/racing/article3019158.ece http://login.westlaw.co.uk.lawdbs.lawcol.com/app/document?src=doc&linktype=ref&&context=16&crumb-action=replace&docguid=i48377630e42811da8fc2a0f0355337e9 the evidence of anonymous witnesses in criminal courts 80 independent counsel “exceptional, never automatic” and “a course of last and never first resort.”53 the role of the court in assessing the evidence, coupled with the prosecutor’s duty to put all relevant material before the court, should be sufficient for “a fair and informed decision to be reached without the need for special counsel.”54 yet the present scrutiny regime for witness anonymity orders remains the most significant threat to the fair trial that arises out of the witness anonymity act 2008. the act expects the prosecutor to firstly have the ability to look at his evidence with eyes of the defendant and secondly, to be able to perform this task as well and as diligently as a defence team, with full instructions from the accused. though co-operation between defence and prosecution is increasingly deemed desirable in our criminal justice system the principles of adversary cannot be compromised when it comes to the scrutiny of evidence and the just advancement of the defence case. the final section of this article will seek to determine how this unsatisfactory situation can be remedied, and to highlight various other models for witness protection that parliament should at the very least debate before proceeding to replace the present witness anonymity act. after sunset: what next for witness protection and the rights of the accused? the coroners and justice bill, introduced into parliament on 14th january 2009, proposes re-enact the 2008 law reform (witness anonymity) act 2008, which was originally due to expire on december 31st 2009.55 insofar as they constitute a modification of the measures enacted in july 2008 the proposals in part 3 of the coroners bill for the future treatment of the evidence of anonymous witnesses will be examined below. consideration will also be given to the court of appeal judgment, from december 2008, in r v mayers, the case that represented the appellate court’s first opportunity to interpret and apply the provisions of the 2008 witness anonymity act.56 development of the law part 1: r v mayers the consolidated appeals of mayers represent the first reported appeals against conviction emerging in the wake of the law reform witness anonymity act 2008. s11 of the 2008 act provides that an appeal against 53 attorney general’s guidelines: the prosecutor’s role in applications for witness anonymity orders. criminal evidence (witness anonymity act) 2008 para [d2]. 54 ibid, para [d2]. 55 see criminal evidence (witness anonymity) act 2008, s 14. 56 r v mayers [2008] ewca crim 2989. the denning law journal 81 conviction may be deemed unsafe if a witness anonymity order was made at trial before commencement of the act (july 21st 2008) and such an order could not have been made had the act been in force at the material time.57 additionally, such a pre-commencement order must have meant the defendant “did not receive a fair trial” for an appeal against conviction to succeed.58 in the case of jordan mayers, a “pre-commencement” case, an appeal against conviction was allowed by the court of appeal, and the appellant’s conviction for murder was quashed. at his trial, due to start on july 9th 2007, the crown relied on the evidence of an anonymous witness “jeanette evans”, who purported to identify mayers as the assailant in a fatal knife attack. however, the existence of this witness was only made known to the defence on 28th june 2008, leaving the time frame for scrutiny of “jeanette evans” in terms of credibility and potential motive for testifying short. allowing the appeal of mayers the court of appeal concluded as follows: “notwithstanding the absence of full and comprehensive inquiries needed to set against the disadvantages created for the appellant by the anonymity order, [jeanette evans’s] evidence assumed decisive importance in the case against the appellant. without it a conviction would have been highly improbable.”59 the appeal thus succeeded because the trial anonymity order would now be incompatible with the witness anonymity act in two important regards. firstly, the court of appeal deemed the evidence of “jeanette evans” “decisive”. as was noted above the “sole or decisive evidence” test is incorporated into the 2008 act as a “relevant consideration” which the trial judge must take into account in determining whether the defendant may receive a fair trial.60 secondly, the court of appeal found that the prosecution before the trial of mayers did not adequately test the credibility and character of “jeanette evans”. such a lack of investigation would now make satisfaction of sections 5(2)(d) and (e) of the act, concerning consideration of whether a witness may have any “tendency or motive” to be dishonesty, difficult. the court of appeal has set the requisite standard of investigation into the credibility and motive of potentially anonymous witnesses at a high level. lord judge stated in mayers that should a trial judge “entertain reservations” about the diligence of prosecution scrutiny then an application for witness anonymity under the 2008 act should be “met with a point blank refusal.”61 57 criminal evidence (witness anonymity) act 2008, s 11(2)(b)(i). 58 ibid, s 11(2)(b)(ii). 59 above n 56, at para [52]. 60 criminal evidence (witness anonymity) act 2008, s 5(2)(c). 61 above n 56, at para [10]. the evidence of anonymous witnesses in criminal courts 82 the appeal of junior glasgow, heard alongside that of mayers, was refused, however, thus establishing a contrast with the successful appeal of mayers, illustrative of the dividing line between a safe and unsafe conviction where a witness anonymity application had been granted at trial. the appeal of glasgow, against conviction for murder, was refused on the basis that firstly, sufficient consideration had been given to the credibility of anonymous trial witnesses and secondly, that the trial judge had considered possible alternatives to making an anonymity order. in contrast to the situation in mayers, the anonymous witnesses in glasgow had been identified at an early stage and were thus adequately vetted to ensure independence of one another and lack of motive for testifying against the accused. the judge at the trial of glasgow was credited by the court of appeal as having “anticipated and addresses the pre-conditions to making a witness anonymity order” and, as such, ensured the defendant had received a fair trial.62 the final two appeals in mayers are further usefully illustrative of the application of the 2008 statutory regime. the third appeal, that of costelloe & bahmanzadeh, concerned the admissibility of anonymous testimony at trial from undercover police officers. the evidence of the undercover officers was deemed not to have been the “sole or decisive” evidence against the two appellants, even when “taken cumulatively.”63 there was no suggestion that the officers had any tendency or motive to be dishonest. for these reasons the appeal was dismissed. the final appeal in mayers and others, of v, p &r, was not an appeal against conviction but “an interlocutory appeal by the prosecution against a decision on september 19th 2008 that the act did not permit a witness anonymity order to be made unless it was proposed that the witness or witnesses would be called to give evidence.”64 the court of appeal considered whether an anonymity order may be made in respect of an absent witness and, in the alternative, whether it was possible to admit anonymous hearsay evidence. both questions were answered in the negative, the court of appeal declining to re-write the witness anonymity act 2008 or to expand the hearsay provisions of the criminal justice act 2003.65 the appeal of mayers has usefully elucidated the terms of the 2008 witness anonymity act, illustrating through the contrasting cases of mayers and glasgow when a trial will be deemed unfair owing to inadequate scrutiny of potential anonymous witnesses. an example of evidence falling short of being “sole or decisive” is provided in the appeal of costelloe & 62 ibid, at para [76]. 63 ibid, at para [87]. 64 ibid, at para [2]. 65 ibid, at para [113]. the denning law journal 83 bahmanzadeh and anonymous hearsay is expressly excluded from being within the scope of the 2008 act in the interlocutory appeal of v, p & r. further appeals in this sphere will doubtless be heard and reported in the coming months. it is submitted that the court of appeal’s willingness to quash the conviction of mayers represents a strong indication that for a witness anonymity application to be granted in the future, trial judges will expect prosecutors to show a significantly heightened degree scrutiny and disclosure relating to such witnesses. such an enhanced expectation will serve to go some way allay the fears of defence lawyers that where a witness’ identity is concealed significant lines of investigation and cross examination, crucial to the conduct of the defence are lost. developments in the law part 2: the coroners and justice bill 2009 on january 14th 2009 the government introduced the coroners and justice bill, part 3, chapter 2 of which is intended to replace the witness anonymity act, due to expire on december 31st 2009. at the time of writing the bill has passed a second reading in the house of commons (on january 26th 2009), with proposals concerning coroners and inquests attracting more attention through the committee stage and in the media than the provisions relating to the criminal law of evidence. the bill is due to remain in the commons committee stage until march 10th. sections 1–9 and 14 of the witness anonymity act 2008 would be repealed by the coroners and justice bill, though their content is largely reenacted by the provisions, near identical in wording and structure, contained in chapter 2, part 3 of the bill.66 principle among the modifications the bill seeks to make to the 2008 statute is the proposed modification of “condition c”, at section 4(5) of the 2008 act, to remove the word “necessary.”67 as such, a witness anonymity order would no longer need to be “necessary… in the interests of justice” before being granted. instead, “condition c” now merely requires “that the importance of the witness’s testimony is such that in the interests of justice the witness ought to testify.”68 the hurdle imposed by “condition c” appears to be lowered by the proposed legislation. whether this new phraseology will make a significant difference to trial judges’ considerations in deliberating an anonymity order remains to be seen. clause 74 of the coroners and justice bill seeks to expand the measures contained in the 2008 legislation on discharge or variation of witness 66 clause 79 of the coroners and justice bill states: “sections 1 to 9 and 14 of the criminal evidence (witness anonymity) act 2008 (c. 15) cease to have effect.” 67 coroners and justice bill 2009 clause 71(5). 68 ibid. the evidence of anonymous witnesses in criminal courts 84 anonymity orders. the new bill inserts, by way of clause 74(3) a requirement for trial judges to give “every party to the proceedings the opportunity to be heard” before discharge or variation of an order. clause 74(4), however, allows a prosecution application to be heard in the absence of the defendant and his representatives. the bill does not provide for a right of appeal against the making, or indeed the refusal of, an anonymity order. as the explanatory notes state: “the government considers that existing appeal procedures are sufficient….in the case of a defendant, the matter may be raised on appeal against conviction.”69 it may be debated whether some form of “fast track” appeal procedure, avoiding significant delay to the trial process, could have been implemented. taking the case of davis as a relevant example, an appeal against conviction can take a matter of years to be heard. the human rights organisation liberty draws the most fitting conclusion on the provisions of the coroners and justice bill relating to criminal evidence and witness anonymity orders: “while we believe that the provisions in this bill could be improved on we do not take specific issue with this chapter.”70 the bill does not seek to introduce measures which are an added handicap or detriment to the accused, yet neither does seek to make positive advances in the opposite direction. the enhancement of the absolute right of the accused to an absolutely fair trial is not the primary purpose, nor incidental effect of the bill. this article will now draw to a conclusion by examining how the provisions of the coroners and justice bill 2009 could have established a more satisfactory, long-term solution to the related problems of witness intimidation and the difficulties which arise from the use of anonymous witnesses in our criminal courts. moving to a long-term solution: despite the government’s pledge to revisit the issue of witness anonymity in the present parliament, as asserted above the coroners and justice bill represents an opportunity missed. as opposed to a piece of legislation specifically designed to address the problem of witness intimidation, whilst giving renewed regard to the rights of the accused, the government seeks to re-enact measures drafted in haste in july 2008, intended then only as an interim solution. it is submitted that there are three viable proposals for the future of witness protection in england and wales, which may sufficiently safeguard the rights of the accused and preserve the right to a fair trial into the future. each of these will now be assessed. 69 coroners and justice bill explanatory notes, issued january 14th 2009, para [436]. 70 liberty’s second reading briefing on the coroners and justice bill in the house of commons para [47]. the denning law journal 85 (a) the independent counsel / new zealand model in similar fashion to england and wales, new zealand passed witness anonymity laws following decisions in the appellate courts which affirmed the defendant’s absolute right to confront his accusers.71 the resulting new zealand evidence act 2006 sought to allow for anonymous testimony in criminal courts in certain, limited circumstances. the provisions of the new zealand act are markedly different in two critical regards to the provisions presently enacted in england and wales. it is submitted that both of these differences in approach taken by the new zealand statute should form part of any future domestic legislation on the use of anonymous witnesses. the first difference of approach taken in the new zealand evidence act concerns how widely witness anonymity orders should be granted. section 110 (1) of the new zealand act states that such an order may only be granted where “a person is charged with an offence and is to be proceeded against by indictment.”72 although the case of r v davis may lead domestic observers towards the conclusion that anonymity orders are to be the sole preserve of cases concerning only serious, indictable-only offences such as murder, there is nothing in the 2008 legislation which restricts the granting of an anonymity order to certain categories of serious offences. the considerations to be taken into account by a new zealand judge before granting an anonymity order are listed in section 110 (5) of the 2006 act. the third of six considerations listed is “the gravity of the offence.”73 again, it is clear that the new zealand legislation seeks to limit the use of anonymous testimony to the most serious indictable offences. this is a step that any future legislation must take, so as to avoid the widespread handicapping of defendants throughout the criminal justice system. as soon as the prosecuting authorities are able to offer potential witnesses anonymity when proceeding with a wide range of offences such witnesses may begin to form the view that anonymity is their entitlement, and only acquiesce to give evidence on the condition that they remain anonymous. the attorney general in his guidelines on anonymity orders acknowledges that seeking such an order is a “serious step”,74 but if such testimony is to be allowed in the courts of england and wales it must firmly remain an exception, as opposed to moving towards the status of a rule. the second difference of approach which makes the new zealand model a better safeguard of the rights of the accused is the provisions relating to 71 see r v hughes [1986] 2 nzlr 129 and r v hines (unreported) court of appeal august 15th 1997, ca 465/96. 72 new zealand evidence act 2006, s 110(1). 73 new zealand evidence act 2006, s 110(5)(c). 74 above n 48, para [d1]. the evidence of anonymous witnesses in criminal courts 86 “independent counsel.” as was noted above, the present arrangement under the 2008 legislation, where the defendant is dependent on the diligence of prosecution disclosure to test the credibility of witnessed against him, is roundly unsatisfactory. such an approach was, it must be remembered, preemptively condemned by lord bingham in davis.75 the law commission of new zealand noted in their report on proposed witness anonymity laws that: “since an anonymity order necessarily deprives the accused and defence counsel of the normal right to knowledge of the witness’s identity, we propose that independent counsel be appointed by the court at public expense, to conduct enquiry into the witnesses truthfulness and reliability and the evidence that the witness will give in the proceedings. the purpose of such an appointment will be to compensate as far as practicable for the disadvantage to the defence occasioned by the order.”76 such a recommendation became law in the form of section 115 of the new zealand act. section 115(1)(a) gives independent counsel, appointed at the discretion of the presiding judge, a broad remit to objectively assess both the likely truthfulness of any testimony, which it is proposed should be given anonymously, as well as the need for an anonymity order in the first place. section 115(2) further provides that the independent counsel must be provided with “all the information relating to proceedings” so as a full assessment of the need for, and possible flaws of, potentially anonymous testimony can be vetted and exposed to the trial judge. the benefits of such independent counsel are readily determinable by reference to the flaws, discussed above, in the present system in england and wales of reliance on prosecution disclosure for the maintenance of the fair trial. although the present domestic framework does not expressly rule out the appointment of independent counsel guidance which has followed the 2008 act has almost impliedly done so.77 any future legislation which is founded on the premise that anonymous testimony is desirable must expressly provide for independent counsel to conduct the analysis of both the need for and potential flaws of proposed anonymous testimony in any given criminal trial. further to this the new zealand model must be followed in terms of expressly limiting the use of anonymous testimony to the crown court, and to the few 75 above n 8, at para [31]. 76 law commission of new zealand: evidence law: witness anonymity-.a discussion paper (nzlc pp29, 1997) para [71]. 77 see above for discussion of ag guidelines. the denning law journal 87 most serious indictable-only offences. such measures would serve to restore the rights of the accused to prominence in the criminal justice process in contract to the provisions of the 2008 act, which merely see that such rights are taken into account and balanced against other considerations. (b) the “enhanced disclosure” model should the government seek to develop rather than overhaul the 2008 criminal evidence (witness anonymity) act it is possible that the disclosure obligations of the prosecution may be enhanced, to provide a greater degree of scrutiny of proposed witnesses against the accused. philip katz qc first mooted such a proposal, requiring prosecutors not only to fulfil their existing obligations of disclosure under the criminal procedure and investigation act 1996, but to also undertake an active search for material which may undermine witness credibility or the need for anonymous witness order.78the attraction of such a proposition from the government’s perspective is clear; a complete overhaul of the 2008 act would be unnecessary. the government could reinforce its human rights credentials by claiming to augment the rights of the accused through enhancing the burden of disclosure on the prosecution, indeed creating a burden of active investigation. the court of appeal in r v mayers recently made some encouraging remarks about the degree of diligence which will be expected of prosecutors when seeking an anonymity order. the lord chief justice stated in mayers: “our approach to this issue enables us to highlight that the obligations of the prosecution in the context of a witness anonymity application go much further than the ordinary duties of disclosure. as we shall see when we examine the statutory considerations a detailed investigation into the background of each potential anonymous witness will almost inevitably be required.”79 it was on the basis of inadequate scrutiny of the witness “jeanette evans” that the appeal of jordan mayers was allowed. the court of appeal also restated the importance of the defence statement, though, which “must help inform and focus the disclosure process”80, particularly in light of the 78 philip katz qc interviewed on the bbc radio 4 programme “law in action” june 24th 2008. 79 above note 56, at para [10]. 80 ibid, para [12]. the evidence of anonymous witnesses in criminal courts 88 enhanced content requirements for such statements, in force from november 3rd 2008.81 yet the fact remains that for a fair trial to take place the defence must be the party which scrutinised the proposed evidence. a defendant cannot be expected to rely on prosecutors to provide his defence for him. if it is accepted that extra scrutiny must be made mandatory before witness anonymity can be granted then independent counsel may as well perform the extra work this would entail, charged to act with objectivity and the fairness of proceedings at the forefront of their mind, as opposed to securing a conviction. again it bears repeating: a prosecutor cannot assess the credibility of a witness in the same way as a defendant, who may know or recognise the potential witness, or consider them an enemy, can. if the defence in crossexamination cannot test evidence the defence prior to admission at trial must test it. failing even this, independent counsel must perform the test if the bear minimum of fairness in the criminal trial is to be upheld. (c) the “witness protection”/international model prior to drawing conclusions as to the future of this contentious area of the criminal law it is worth considering whether our courts should allow, or indeed whether we have a genuine present need for, anonymous testimony in criminal courts. the media frenzy, which followed the law lord’s decision in davis, demonstrates the popular sentiment that dangerous criminals should be convicted by whatever means possible.82 the government argue, and will continue to argue, that the law must exist to protect the innocent. it can be shown that witness intimidation is rife in england and wales, with convictions for such having doubled in number between 1996 and 2005.83 however, even if it is accepted that witness intimidation is a real and severe threat to the administration of criminal justice in england and wales it is still arguable whether interference with the trial process, and consequentially the fairness of the trial and the rights of the accused, is the most effective manner in which to address this problem. it must be noted that the number of countries with judicial systems that have due regard to human rights, which also allow the use of anonymous testimony in criminal courts is small in number. the united states has 81 s 60(1) of the criminal justice and immigration act 2008 (in force 3/11/08) adds a new s 6a (1) (ca) to the criminal procedure and investigation act 1996 which requires that a defendant’s defence statement must set out “particulars of the matters of fact on which he intends to rely for the purposes of his defence.” 82 above n 8 and 9, with regard to the outrage expressed in the media post davis. 83 lord carswell raises this statistic in his judgement in davis at para [52]. the denning law journal 89 enshrined the right of the accused to fully test the evidence against him in their constitution, the sixth amendment stating that “the accused shall enjoy the right…to be confronted with the witnesses against him.” 84 pursuant to this, the us supreme court has vigorously struck down attempts in the lower courts to make inroads into this constitutional right. in alford v united states85 the supreme court made a now often-quoted statement: “the witnesses name and address open countless avenues of in-court examination and out-of-court investigation. to forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross examination itself.”86 the principle upon which this statement is founded is timeless. a defendant must have the right to defend himself, by testing the evidence against him, a right also encapsulated in article 6 (3) (d) of the european convention on human rights87. such a fundamental right can not be “balanced” with any other considerations, even the deemed “public interest” in protecting witnesses from fear. it can not be in the long term public interest to downgrade the right to a fair trial. it is not only the united states which rejects the notion of witness anonymity. the south african courts have resisted attempts to encroach upon the right of confrontation, most notably in the leading case from 1986 of s v leepile.88 such was the force of this case that there have been no further cases on witness anonymity in south africa since. in addition to the united states and south africa the forty-seven council of europe countries also reject the need for anonymous testimony as a weapon against witness intimidation. the government would certainly have a more difficult task of persuading the public that witness anonymity is necessary here if it were made clear just how isolated the 2008 act makes our position in a global context. it cannot be convincingly argued that serious gang crime and witness intimidation is worse in london or birmingham than it is in new york, italy or on the streets of johannesburg or bloemfontein. 84 “the constitution of the united states” amendment 6. (ratified 1791). 85 alford v united states 282 us 687 (1931). 86 ibid. 87 “the european convention on human rights and fundamental freedoms” art 6 (3)(d). 88 s v leepile:(5)1986(4)sa187(w). in this case ackermann j refused an application by the prosecutor to allow the true identity of a witness to be withheld, ruling that such must be disclosed to the defence. of particular interest was ackermann j’s finding that granting anonymity to a witness might “heighten the witness’s sense of impregnability and increase the temptation to falsify or exaggerate” at para [189]. the evidence of anonymous witnesses in criminal courts 90 as opposed to interfering with the trial process, and as a consequence the rights of the accused, the weapon many of the above mentioned states employ to combat the menace of witness intimidation is large-scale, well funded witness protection programmes. the goal of ensuring potential witnesses are not too fearful to testify in criminal courts is achieved by providing them with the option of a new identity and new home, hidden far from any danger of reprisal following their testimony. evidence from other states attests to the effectiveness of witness protection: the united states marshal service boast of never having lost a witness placed in their care post-trial.89 if such witness protection can be achieved in the united states, without damage to the fairness of the trial process, why has such a measure not been considered in england and wales? the lord chief justice sir igor judge has cast doubt, firstly in the court of appeal hearing of davis and, more recently, in the appeal of mayers, on the value of expanding witness protection in england and wales. his lordship, in his judgment in mayers found that there was a “degree of unreality about the submission that witness relocation should normally provide a practicable alternative to an anonymity order.”90 in davis in 2006 lord judge deemed witness protection as “grossly invasive of the right of the witness and his family to private and family life.” yet it is submitted that the rights of the witness which the lord chief justice describes are naturally accompanied by social responsibilities. one such responsibility, that every citizen must bear, is to aid the process of justice and, it follows, uphold the rule of law against those who seek to challenge it through dangerous criminal activity. whereas the government believes that they can protect the “rights of the innocent” through allowing witnesses anonymity it is submitted that such protection can not be allowed to unfairly handicap those accused of criminal offences, who themselves, it must remembered, are innocent too, until proven guilty. the unfortunate reality of the situation is the same as in many other spheres of the administration of justice in the present day: the answer is found in the cost. there is no doubt that a well-equipped witness protection service, run by a dedicated agency such as the marshals in the united states, would require a substantial initial expenditure by the ministry of justice, and would add a significant weight year after year to a criminal justice budget which we are regularly told is over-stretched and under pressure. yet surely it is among 89 “no programme participant who follows security guidelines has ever been harmed while under the protection of the marshalls service” – (http://www.usmarshalls.gov/witsec/index.html) quoted in justice: criminal evidence (witness anonymity) bill. briefing for the house of commons (all stages). july 2008 para [14]. 90 op cit, at para [9]. http://www.usmarshalls.gov/witsec/index.html the denning law journal 91 the first duties of any government to maintain human rights on an equal footing for all, particularly the right to a fair trial, whatever the cost. the government was forced into a volt face regarding the post 2001 policy of indefinitely detaining foreign terrorist suspects at belmarsh prison following the house of lords ruling in a (fc) and others v secretary of state for the home department.91 their lordships deemed such a policy discriminatory and incompatible with human rights. following this decision the government was forced to implement the more expensive policy of “control orders” to achieve their policy goal. the same principle applies with witness anonymity: where one policy is incompatible with human rights an alternative must be considered, even if the cost is greater and the convenience considerably less so. conclusion: protecting witnesses and protecting human rights the government maintains that the 2008 witness anonymity act is “consistent with” the requirements of human rights law, and thus the debate as to the use of anonymous testimony is an academic one only. yet this article has demonstrated the difficulty a defendant is presently placed in under the act. the defendant presently faced with the prospect of anonymous testimony against him is dependent on prosecution disclosure for the formulation of his defence and subject to the undeniable prejudice he will suffer in the mind of jurors; in granting a witness anonymity the court has decided that the defendant, or his associates, pose a threat before the jury have had chance to consider this prosecution assertion independently. the coroners and justice bill 2009, at the time of writing, appears to represent a missed opportunity for re-consideration of the 2008 witness anonymity act and of whether depriving the defendant of a completely fair trial before an unequivocally impartial jury is the best way in which the mischief of witness intimidation may be combated. it is submitted that the only logical conclusion, that rightly gives due regard to the rights of the accused, is that it is not. serious consideration must be given to genuine witness protection programme for england and wales. citizens who may become witnesses have social duties as well as human rights and the police and prosecution service would do well to offer this assertion before making an offer of trial anonymity. through witness protection the american authorities have managed to dismantle large sections of the new york mafia, without 91 a(fc) and others v secretary of state for the home department [2005] 2 ac 68. part iv of the anti-terrorism, crime and security act 2001 deemed incompatible with the human rights act 1998 as it permitted indefinite detention for foreign nationals but not british citizens. http://login.westlaw.co.uk.lawdbs.lawcol.com/app/document?&src=rl&suppsrguid=ia744c0bb0000011dcf6c81e56a5b0f50&docguid=i46e940c0e42711da8fc2a0f0355337e9&hitguid=i46e919b1e42711da8fc2a0f0355337e9&spos=1&epos=1&td=1&crumb-action=append&context=9 the evidence of anonymous witnesses in criminal courts 92 interference with the trial process or with rights of the accused.92 short of this approach, the new zealand model, where independent counsel assesses need for anonymous evidence and the risk of untruthful testimony, is a bare minimum requirement if the right to a fair trial is to be maintained. yet such a standard – the bear minimum to protect a fundamental human right – should not be the sum of what we aspire to. this article has sough to demonstrate that the debate about how best to protect witnesses giving testimony in criminal trials cannot be deemed over, even with the passage of the coroners and justice bill. witness anonymity need not be a fait accompli. the arguments against anonymous testimony in our courts must be seized again by those in parliament who wish to see the right to a fair trial, and the achievement of open justice, remain fundamental and absolute tenets of english criminal justice not mere considerations to be balanced with the present deemed needs of public policy. the fact remains that the particular public policy the government has in mind can be achieved without such a challenge to justice as presently stands enacted. 92 clive coleman “can justice afford witness anonymity?” in the times: http://www.timesonline.co.uk/tol/comment/columnists/guest_contributors/article4192 851.ece. abstract introduction r v davis: the european dimension r v davis: the common law dimension “creeping emasculation”: the road to r v davis the “witness anonymity” act 2008: a satisfactory safeguard of the rights of the accused? after sunset: what next for witness protection and the rights of the accused? development of the law part 1: r v mayers developments in the law part 2: the coroners and justice bill 2009 moving to a long-term solution: (a) the independent counsel / new zealand model (b) the “enhanced disclosure” model (c) the “witness protection”/international model conclusion: protecting witnesses and protecting human rights 12:55 the denning law journal 51 appellate advocacy new challenges the dame ann ebsworth memorial lecture london, tuesday 21 february 2006 the hon justice michael kirby ac cmg* dame ann ebsworth remembered this lecture honours dame ann ebsworth who died in 2002 of cancer. she was but sixty-four years of age.1 as i am the inaugural lecturer, i will record some personal facts, although her memory will be green for her friends, many of whom have come to this lecture to remember her and to celebrate her life. ann ebsworth was born on 19 may 1937. her father was an officer in the royal marines. she was raised a roman catholic and derived from her religion and her parents strong convictions and a sense of public service. she read history at the university of london where she was known as a formidable debater. in 1962 she was called to the bar by gray’s inn. her practice, which was in liverpool, was predominantly criminal with some family work (which increased) and some civil work (which diminished). she rose to be head of her chambers. she was known as a considerable opponent, particularly in criminal cases. she was described as an “… effective and formidable advocate, thorough in preparation, lucid and courteous in style and entirely unflappable.”2 in 1987 she was appointed to the northern circuit bench. it was at that time that she first met brenda hale who had begun training to be an assistant recorder in liverpool. baroness hale has told of how thoroughly intimidated she felt, especially because of the daunting experience of lunching with the other judges at st george’s hall. however, baroness hale describes how “ann quietly did her best to look after me and make me feel a little more at home.” after 1978 ann ebsworth served as a recorder in the crown court and later as a circuit judge. she did not take silk. she was promoted to the queen’s bench division in 1993. this was a significant appointment. dame * justice of the high court of australia. the author acknowledges the assistance of mrs lorraine finlay, legal research officer in the library of the high court of australia, in the provision of materials used in the preparation of this lecture. 1 p bartle qc note in the circuiteer, spring 2005, 20. 2 address by sir mark hedley at gray’s inn chapel, 10 april 2002. the denning law journal 52 elizabeth lane had become the first woman appointed to the high court in 1965. she was followed by justices heilbron, booth, butler-sloss and bracewell. however, although at least three of that five were far more familiar with the varied work of the queen’s bench division than the work of the family division, that was where they were assigned. in baroness hale’s words “it was no mean achievement for ann ebsworth to become … the first woman to be trusted full-time with the work of [the queen’s bench] division the year before the first, and as yet only, woman was appointed to the chancery division … dame mary arden.” according to tim dutton,3 when appointed to the high court, ann ebsworth suffered as a result of “that peculiarly english combination of snobbery and sexism” at the hands of a male fellow high court judge, who even refused to talk to her. she later had the last laugh on him. tim dutton says that “she was formal and slightly formidable as a judge. nonetheless, she was, he says, a kindly and self-effacing person. she was described as a “model judge who stood no nonsense from unprepared barristers.”4 she conducted a large number of difficult trials, was rarely appealed and even more rarely reversed. ann ebsworth did not marry. after her mother died, she lived with her father. he died soon after she was appointed to the high court. she lived for a time in london in the temple, in a flat of lord and lady mackay. she was made a bencher of gray’s inn. she would refer to herself as “a safe pair of hands.” but philip bartle5 says that she was “much more than that.” she cared deeply about the law, but even more deeply about justice. according to philip bartle, “those who appeared before her could not have had a fairer tribunal.” baroness hale says that mrs justice ebsworth knew how to conduct long and difficult criminal trials firmly and fairly. she also knew how to decide difficult points of law. reportedly, she had a “wonderful dress sense” and “always looked cool and elegant.” she was not a strong supporter of affirmative action for women or anyone else. she had a belief that talent would shine through. at least in her case, it did. in the latter part of her life, mrs justice ebsworth devoted much time to teaching advocacy. she was always ready and willing to teach for gray’s inn and for the south eastern circuit. the south eastern circuit benefited greatly from her involvement in the annual course conducted at keble college, held for new practitioners over many years. she would join the teachers and students in the evenings, accompanying them to a nightclub 3 communication of tim dutton to p m bartle, shared with the author. 4 hedley, op cit. 5 bartle, above n 1. the denning law journal 53 whose dubious reputation necessitated an escape plan in case of the arrival of police. providentially, the plan never had to be invoked. in 2000 she was diagnosed as suffering from mesothelioma, a deadly and particularly painful form of cancer. she continued with her work and with teaching advocacy as long as possible, facing her illness, in baroness hale’s words, “with the same quiet courage and determination that she handled all her professional life.” dame elizabeth butler-sloss has described to me how she fought against her condition bravely, continuing to sit as a judge for as long as she possibly could. her ambition was to be a good judge. it is a worthy ambition. the inauguration of this series of lectures indicates the opinion of her professional colleagues that she greatly succeeded in that aim. dame ann ebsworth’s funeral was conducted at gray’s inn on 10 april 2002. her obituary in the guardian,6 shortly after her death, said: “she leaves a lasting mark on the history of the legal world, and in the hearts of those fortunate enough to have known her well.” i am proud that you have called me from a far away place to begin the lecture series that honours ann ebsworth’s memory and her work within the law. because of her talents and special interests, it is right that the lecture should take a theme centred on advocacy. necessarily, i will approach the subject primarily from the viewpoint of my twenty two years as an appellate judge in australia. yet because we have copied the common law and the tradition of the english courts and bar, in which ann ebsworth served with such distinction, most of what i say will surely be relevant for this audience. the “rules” of appellate advocacy talent in advocacy has conventionally been viewed as a natural gift rather than a skill to be developed. good advocates were thought to be born, not made. i do not deny that there may be a gene or two in the 36,000 genes on the human genome that is labelled “top advocate” – “skills of communication and persuasion.” such talents may indeed be inherited, at least to some extent. however, in recent decades it has increasingly been recognised that advocacy skills can be improved and sharpened. formal advocacy training can be an effective way of enhancing the essential skills. the result of this conviction can be seen in the increasing number of legal advocacy courses being offered through law schools, bar associations, and 6 the guardian, april 12 2002. the denning law journal 54 other organisations throughout the world. in australia, we have the australian advocacy institute and courses offered by bar associations. the new focus on improving advocacy standards is a positive development. it can only serve to enhance the administration of justice and the service of clients. advocacy is about persuasion. professor george hampel – himself formerly a leading barrister and judge in australia – has explained: “advocacy – or persuasion – involves creating or changing perceptions to influence the result … great advocates are not necessarily better lawyers than others – they are better communicators.”7 intangible qualities identify individuals as outstanding advocates. but there is no single objectively correct style of advocacy. advocates have their individual styles, reflecting their personalities and attitudes, their education, family upbringing and hard-to-define elements such as appearance, voice timbre, skills in eye contact, sense of drama and humour and other elusive elements of the art. for all this it is possible to identify a number of common characteristics shared by effective advocates. so far as appellate advocacy is concerned i have previously collected what i then called ten “rules” – but they are really only suggestions.8 they are certainly not exhaustive.9 nor are they rigid requirements to be obeyed slavishly regardless of the particular circumstances. they do, however, provide one starting point for advocates wishing to refine their advocacy skills before appellate courts. different lists could be propounded for jury trials, judge-alone cases, multiple member tribunal hearings, magistrates’ courts, professional bodies and so forth. some of the big ten suggestions that i have nominated will be equally applicable in 7 quoted in k marshall, “war crimes prosecutors set to learn art of persuasion”, monash news, december 2002, p 8. 8 m d kirby, “ten rules of appellate advocacy” (1995) 69 australian law journal 964. 9 for other suggested “rules” or “tips” see r h jackson, “advocacy before the united states supreme court” (2003) 5 journal of appellate practice and process 219; r b ginsburg, “remarks on appellate advocacy” (1998-1999) 50 south carolina law review 567; pm wald, “19 tips from 19 years on the appellate bench” (1999) 1 journal of appellate practice and process 7; r b gilbreath, “lost secrets revealed: the seven abcs of successful appellate advocacy” (winter 2005), certworthy 13; r h barksale, “the role of civility in appellate advocacy” (1999) 50 south carolina law review 573. the denning law journal 55 every venue. theologians have a list, probably for the pearly gates of heaven. let me, therefore repeat my 10 commandments for your consideration: (1) know the court or tribunal that you are appearing in; (2) know the law, including both the substantive law relating to your case and the basic procedural rules that govern the body you are appearing before; (3) use the opening of your oral submissions to make an immediate impression on the minds of the decision-makers and to define the issues; (4) conceptualise the case, and focus the attention of the court directly on the heart of the matter viewed from the interest you are propounding; (5) watch the bench and respond to them; (6) give priority to substance over attempted elegance; (7) cite authority with discernment; (8) be honest with the court at all times; (9) demonstrate courage and persistence under fire. you will generally be respected for it. in any case it is your duty; and (10) address any legal policy and legal principles involved in the case and show how they relate to the case. the central aim of advocacy – being to persuade a decision-maker – has remained the same throughout history. it will remain the aim of advocates in the future. the need for advocates to be able to communicate complex ideas and arguments will always constitute the touch-stone by which an advocate is judged. in these remarks i am therefore addressing eternal verities. i do so with proper modesty remembering that what impresses me may not necessarily impress everyone else. in a collegiate court it is common, virtually inevitable, for the judges, on leaving the courtroom, to comment on the performance of the advocates of the day. i regret to tell you (and i know this will come as a terrible shock) that sometimes the comments are less than flattering. one colleague of mine in an earlier time used to keep a list of the “first eleven” – not the best advocates but the worst. he delighted in promoting new members to his list – and not a few judicial colleagues joined in with playful enthusiasm. in his day, the list-keeper had been a consummate advocate. so perhaps he could be allowed to keep his list. yet even he had good and better days. judges, when appointed, sometimes forget the stresses and pressures imposed on advocates. i have never done so. we all have good and bad experiences in communication. the object should be to maximize the good and to minimize the bad. definitely to avoid joining any real or imagined “first elevens” kept by the decision-makers with their ever observant and critical gaze. judges the denning law journal 56 should also keep in mind the possibility that the odd advocate keeps a list of judicial horrors. some features of advocacy are changing. over the past decades significant changes have occurred to the environment in which appellate advocates must work. the most noticeable examples include changes to court procedures and the arrival of increasing numbers of female advocates and advocates from ethnic and other backgrounds different from the previous norm. there have also been significant developments in the tools available to assist advocates. largely these have come about through technological advances such as the internet and other computer technologies. the rate of change will accelerate. the impact that such developments will have on appellate advocacy, and the justice system more widely, remains to be seen. procedural changes two of the most significant procedural changes during the past twenty years within appellate courts, including my own, have been the increasing use of written submissions and the introduction of time limits for oral submissions. these changes have had a significant impact on appellate advocacy. they have changed the environment in which appellate advocate presents the cases. if anything, the changes increase the importance of the basic “rules” that advocates should observe of knowing the court they are appearing before and being aware of the basic procedural requirements that govern the operations of that court. otherwise, the available time will not be maximized and opportunities for persuasion may be squandered or even lost forever. historically, both in england and australia oral advocacy has been emphasised. traditionally for us, less reliance has been placed on written submissions than, say, in the united states of america where abundant litigiousness, overlapping jurisdictions and a large population have long necessitated the adoption of written means to maximize the efficient use of the decision-maker’s time. we have all experienced the sense of astonishment on the part of american judges and attorneys over what they commonly see as our unduly languid approach to oral advocacy and to that form of refinement of the issues for decision. now we are changing, at least in australian courts, with written submissions assuming ever greater importance both in appeals and also in trials. even in jury trials in australia written submissions are now not unknown. judicial directions to juries are often produced in draft and become the focus of targeted advocacy. such directions are sometimes read by the judge and then given to juries in written form so that they have a written record of the main legal directions which the denning law journal 57 they are obliged to apply. it is a big change from the conversational style of jury trial that prevailed when i first went to the bar. the primary reason for this shift to writing is the increasing workload placed on our courts. for example, in the year ending 30 june 1998, two years after i joined the high court of australia, 358 applications for leave or special leave to appeal were filed. this number has more than doubled in the ensuing six years. there were 729 such applications filed in the year ending 30 june 2004.10 this trend is not confined to australia. it is repeated in appellate courts everywhere. the increased emphasis on written submissions has been a somewhat gradual development in australia. until 1982 the high court of australia relied almost exclusively upon oral argument. even then, as i remember, some leaders of the bar braved judicial disapproval and handed up a written précis of what they had said. one advocate told me, “they will go away and forget my (oral) submissions” but then they will have my summary written in a form that they can pick up and use in writing their reasons. it will be irresistible to them.” he was right; but he was ahead of his time. the traditionalists on the bench looked disdainfully at his written efforts when they were offered. now they are accepted, indeed required, as an essential part of the advocate’s role. in february 1982 the first steps were taken in the high court of australia to adopt a universal requirement of written submissions. at first, the court obliged advocates to hand up a written outline of their main arguments immediately before commencing oral submissions. the requirement of a written list of the principal authorities was introduced in 1984. in 1987, further procedural amendments to the court practice expanded upon these obligations. parties, by that time had to file more detailed written submissions covering all significant points of argument.11 the written submissions filed by the appellant in a special leave application are now considered by the high court of australia to be: “the principal vehicle for demonstrating that the case is one in which leave should be given.”12 10 high court of australia, annual report 2003-2004 (2004), p 8. 11 see high court of australia, practice direction no 1 of 2000. a r blackshield, m coper and g williams (eds.), the oxford companion to the high court of australia (2001), pp 197-198; m groves and r smyth, “a century of judicial style: changing patterns in judgment writing on the high court 1903-2001” (2004) 32 federal law review 255. 12 high court of australia, annual report 2003-2004 (2004), p 8. the denning law journal 58 special leave is the procedure of the high court of australia used to differentiate between the appeals that will proceed to the final hearings from those that will not. only a small proportion of the cases in which such leave is sought, succeed in securing it. in the average year, the high court of australia disposes of about 80 proceedings, mostly appeals. this is slightly more than the house of lords and the supreme court of the united states. it is slightly less than the supreme court of canada and considerably less than the supreme court of india with its higher complement of judges sitting in different panels. new high court rules 2004 commenced operation in my court in january 2005. these rules give even further emphasis to the importance of written submissions. under the new rules, special leave applications filed in many cases, including most of those brought by self-represented applicants, are initially considered on the papers by a panel of two justices. the application may be dismissed without further oral hearing if the two justices conclude that the application is without merit or otherwise unsuitable for a grant of special leave to appeal. similarly, if two justices consider it to be appropriate, any application for leave or special leave to appeal may now be determined on the papers without an oral hearing.13 in such applications, the written submissions obviously become of fundamental importance. effectively, written submissions in such cases become the only opportunity the advocate has to convince the court of the merits of the case, its arguability and importance of the issues and the prospect of succeeding after a full hearing to reverse the decision below and, in the process, to establish an important legal principle or cure a serious injustice. the adoption of these new rules reflects an attempt by the high court of australia to deal with the constantly increasing number of applications filed in its registries. it is too early to comment on the effect that the new rules are having both on the parties filing applications and on the court itself. however, the emphasis on written submissions is reflective of a trend occurring in many other jurisdictions because of the pressure of cases, the limited time and capacity of the appointed decision-makers and the waste of time involved in oral hearings that are obviously doomed to fail. this said, the change in the practice of the court was not achieved without heart-burning: at least on my part. our system of justice has long been one of oral advocacy, performed in open court. this system has many advantages. it ensures that judges are themselves constantly under public scrutiny in their decision-making. it ensures that the decision-makers focus their attention on the issues, even if only for a short time. in australia, 13 ibid, p 8. the denning law journal 59 special leave applications that reach a hearing are allowed twenty minutes. both symbolically and functionally the old system had merits. however, most final courts in the world have now adopted a filter of written argument. indeed, many intermediate courts have done so. they have done so simply to cope with the pressure of business. in adopting the new procedures the courts have changed, probably forever, the precise skills of advocacy that they enlist. in australia, even in cases where an oral hearing occurs, the increasing importance of written submissions impacts on the way an appellate advocate typically approaches the task at hand. oral argument is not designed solely as an opportunity to present submissions already stated in writing. reading written submissions aloud to the bench would do nothing to advance the argument – certainly if it went beyond reading a particular passage. it tends to frustrate judges who, for the most part, will already be familiar with the material before them. if the judges are not, they will usually reveal this fact (deliberately or accidentally) obliging adjustment of the advocates’ presentation. but, for the most part, oral argument presents the contemporary advocate with an opportunity to focus the attention of the court on the most important aspects of the case. even more significantly, it provides an opportunity to engage in discussion with the decision-makers about the central issues in the case, and to clarify issues that may be troubling the judges. a good advocate ordinarily uses oral argument to complement and strengthen written submissions, and not just to state them again in a slightly different way. more discerning advocates will keep in mind that some judges may not have had time to read the submissions carefully. in the particular case some will be out of familiar legal territory. even in the age of written arguments, the advocate must tread a careful path between keeping the interest of those judges who are “hot” and those who are not and are not really focusing on what the case is about. it is quite a tall order. the challenge is increased by the trend towards written argument. in many jurisdictions, the increasing use of written submissions has been accompanied by the introduction of time limits on oral hearings. in the high court of australia strict limits were first introduced in february 1994 in relation to applications for special leave to appeal. applicants and respondents are limited to twenty minutes each for oral submissions. the applicant then has a maximum of five minutes to reply. green, amber and red lights directly in front of the bench and the bar table warn of the time the advocates have left to complete their oral submissions. the attitude to strict observance of time varies between presiding judges. however, the daily list of cases for hearing usually demands that slippage be limited to no more than an extra minute or so in a given case. most advocates pace themselves well. the denning law journal 60 they make their submissions in the time allotted. self represented litigants find the time limits much harder to observe. under the new rules providing for disposal on the papers it can be expected that there will be fewer oral submissions by litigants without legal representation than has been the case in my court in the past. generally speaking, the time limits work well in australia. they require a concentration of mind and focus of advocacy in a way that open-ended time does not. but time limits also demonstrate that most cases are susceptible efficient presentation, so that their importance in legal and factual terms can be explained to experienced decision-makers in twenty minutes. the need to do this ensures that advocates usually now go directly to the very heart of their case. that is why, when special leave is granted and the appeal proceeds to a full hearing, the first document i always read is the special leave transcript. the need for swiftness of mind adds to the pressures on advocates and judges alike. not all lawyers (or judges) are at their best in that environment. some who have the best skills of celerity are not necessarily skilled in explaining complex statutes and authority or in exercising judgment as to the outcome. some advocates – and some judges – are sprinters. others are better at running marathons.14 some, alas, are down to a walk. a few are walking in the wrong direction. unlike some jurisdictions, notably the united states supreme court, the high court of australia has not yet introduced strict time limits in appeal hearings. nevertheless, the duration of oral argument is significantly shorter now than it was at earlier decades. the vast majority of appeals today are listed for hearing on a single day. only in the most complex appeals will oral argument be permitted to stretch into a second day or further. this contrasts with the 39 hearing days consumed in the bank nationalisation case15 before the high court of australia in 1948 and the 24 days of oral argument in the communist party case in 1951.16 the former case, late in 1948, went on appeal to the privy council. it lasted 37 days. one can only imagine what those distinguished english judges thought of it. two of their lordships perished in the course of the proceedings. it is not disclosed if this was the result of the australian advocacy, natural causes or just sheer boredom. certainly, boredom can be a peril of unduly prolonged hearings from the point of view of judges and advocates alike. the trend towards shorter oral argument is only possible because of the increased use of written 14 g d finlayson, “appellate advocacy: an australian perspective” (1999) 1 journal of appellate practice and process 27. 15 commonwealth v bank of new south wales (1949) 79 clr 497. 16 australian communist party v commonwealth (1951) 83 clr 1. the denning law journal 61 submissions. it reflects the increased case-loads confronting all contemporary courts, and especially final courts.17 this shifts increasing burdens and responsibilities onto appellate judges. procedural changes such as i have described present new challenges for advocates. but it is important to recognise that, no matter what procedural rules are in place, the task of the advocate remains the same – to persuade. the qualities of good advocacy remain basically the same. it is only the means and duration of delivery that must be modified to adapt to the environment within which the advocate must now commonly operate. the introduction of written submissions and formal time limits presents challenges for courts too. increasing workloads are leading appellate courts to seek more efficient methods of managing their case listings. but there are limits. justice must be done, but manifestly done. procedural changes must always be evaluated in light of this greater purpose, and not solely through the prism of throughput efficiency.18 every reasonable person coming before a court should feel that they will get a fair opportunity to present their case. the pursuit of justice is the ultimate concern of the court. yet unless the cases can be decided in a timely and efficient way, the result is a species of injustice of the court’s own making. the electronic revolution the development of electronic technology has large implications for the justice system and the shape of advocacy within it. technological change will drive many of the most important future developments in advocacy.19 the effects of this “electronic revolution” are already with us. one example of an innovation that has had a direct impact on oral advocacy is the introduction of video-link technology in the courts. in a country as big as australia, having the ability to connect judges and parties at various locations through video link offers a great practical advantage. this 17 a r blackshield, m coper and g williams (eds), the oxford companion to the high court of australia (2001), p 31. 18 cf the state of queensland & anor v j l holdings pty ltd (1997) 189 clr 146, at 172. 19a stanfield “dinosaurs to dynamos: has the law reached its technological age?” (1998) 21 unsw law journal 540; p a talmadge, “new technologies and appellate practice” (2000) 2 journal of appellate practice and process 363; g nicholson, “a vision of the future of appellate practice and process” (2000) 2 journal of appellate practice and process 229; f i lederer, “the effect of courtroom technologies on and in appellate proceedings and courtrooms” (2000) 2 journal of appellate practice and process 251. the denning law journal 62 technology is now employed by the high court of australia for the hearing of special leave applications and the hearing by single judges of motions, as for orders nisi for constitutional writs, stays of execution of judgments under appeal, expedition of hearings and so forth. the use of video-link technology allows hearings to proceed as if all parties were at the same location. the design and use of the technology tends to limit the impact on the style of oral argument. whilst this technology may present some challenges for advocates, it does not substantially alter the nature of advocacy in practice or the application of basic techniques. the human mind quickly adapts to the apparent artificialities of speaking towards a large screen where the listeners can be seen. in a minute or so the advocate forgets the artificialities and engages in communication as if the listener were physically present in the same room. in fact, for a reason not yet clear, advocacy by video-link often appears to be a little briefer. analysis of outcomes has not demonstrated any difference from results derived from hearings in the physical presence of the court. obviously, the technology makes it possible for parties and others interested to come to the transmitting courthouse and witness the hearing and its outcome. the reduction of court and travel time is significant. videolinks are also used by the high court justices in australia to conduct their monthly conferences about cases that have just been heard and which stand for judgment. such links save the judges the time (and the court the expense) of travelling inter-state for their meetings. taking such technology a few steps further, it is possible to imagine a time when the traditional, physical court-rooms may be replaced in many cases by virtual courtrooms. rather than sitting in a physical building in canberra or london or strasbourg, courts of the future may convene on the world wide web, with all participants connected by inter-active video-link technology. the need for such technology in a jurisdiction the size of england may be less pressing.20 but in courts of international or regional operation (such as the european court of human rights or the court of justice) or courts in a continental or sub-continental country (such as australia, canada, nigeria and india) such links can be extremely efficient. advocacy quickly adapts to the new environment. the potential advantages of such developments include obviating the needs to build or maintain some court buildings or facilities in the conventional way. it could reduce the inconvenience and cost of travel for judge and advocate alike. it could diminish the perceived or actual 20 in his report access to justice (final report, 1996), 291-292, lord woolf m.r. recommended telephone conferencing for case management and foresaw video conferencing as a future prospect. the denning law journal 63 remoteness of higher courts and help bring them to the people. however, such a prospect illustrates the need to think through the implications of adopting technology to this extent within the justice system. the selective use of video technology has undoubtedly enhanced the efficiency of the high court of australia. however, the conduct of all proceedings through the world wide web could have negative consequences. the existence of physical court buildings and the holding of public proceedings there, in which all participants are physically present in the one place, continue to have important symbolic and practical purposes. the building of the high court of australia in canberra has, for example, been described as being: “… a benchmark in australia for vital architectural expression that deliberately seeks to make the law visible, relevant, and accessible to the public. at the same time, it evokes an entirely fitting sense of monumentality, respectful of the image and also the scale of the law.”21 the high court building, and others like it, stand as important symbols of our societies’ commitment to the principles of the rule of law, constitutionalism, open justice, public accountability and democracy. they also help to promote dialogue between parties and their representatives and, occasionally, the settlement of disputes. propinquity can also help to promote dialogue between the decision-makers. appearing in the same place as one’s opponents fosters a collegiate spirit amongst specialist advocates. the same advantages are harder to secure in a virtual court-room linking participants who communicate in cyber-space. so i do not see courts disappearing altogether. but they will be modified as will the function of advocates in them. the technology now available and the cost saving makes it possible. a further example of this technology is the future use of the internet to allow the electronic filing and transfer of court documents, and for the employment of multimedia electronic case management systems. some courts have already begun trial or pilot programmes in this area. this technology potentially offers advantages in terms of distributing materials to all necessary recipients in the most time efficient manner.22 at the same time document security, where this is applicable, still needs to be adequately 21 a r blackshield, m coper and g williams et al (eds), the oxford companion to the high court of australia (2001), p 30. the duke of edinburgh was less kind in his comment. reportedly, he suggested that the building most resembled a power station. 22 access to justice (final report, 1996), 285-287. the denning law journal 64 addressed before such technology can be fully adopted. if such concerns can be adequately met, technology of this nature offers potential benefits for advocates by improving the administrative processes of courts and their transparency, to the advantage of all concerned. technology is already changing the way in which advocates are presenting information to decision-makers. electronic hyperlinked briefs, being briefs recorded on cd-rom and containing not only the text of submissions but hyperlinks to all cited references, are already being filed in the united states.23 occasionally (very rarely) such cd-roms have been offered to the bench in australia. so far the response has generally been the same puzzlement, and even lack of welcome, that to the first attempts, thirty years ago, to hand up written submissions occasioned. however, in large trials and even some complex appeals (e.g. dealing with the multiple legal and factual issues such as claims of native title to land) intrepid advocates are beginning the process of educating the judges in the usefulness of such electronic materials. multi-media briefs open up the possibility that in the near future: “… a judge need no longer put down a printed brief to pull a law book from a library shelf. no longer will he or she have to dig through a multivolume appendix to find a documentary exhibit or set up a vcr to play a videotaped excerpt of testimony.”24 the introduction of such multi-media briefs raises interesting questions about the role of appellate courts and the limits and potential to their function. in numerous cases the high court of australia has recognised the constraints under which appellate courts operate, particularly in terms of the need to accord respect to the advantage of the trial judge in actually being 23 the first known cd-rom appellate brief to be filed by a party was in yukiyo v wantanabe 111 f 3d 883 (fed cir 1997). the united states court of appeals for the federal circuit ultimately struck the brief out on the grounds that the appellant had failed to seek leave from the court before filing the brief. a cd-rom brief was however accepted by the same court in the case of in re berg 43 uspq 1703, 1704 (fed cir 1997) (unpublished). such briefs have also been accepted in a number of subsequent cases. 24 f gindhart quoted in: f i lederer, “the effect of courtroom technologies on and in appellate proceedings and courtrooms” (2000) 2 journal of appellate practice and process 251, at p 263. the denning law journal 65 present throughout the trial.25 such advantages were traditionally ascribed to the capacity of the judge to assess the veracity of witnesses from their appearance in the witness box. if this consideration is now given less weight because scientific research has cast doubt on its reliability, there remain advantages in the conduct of the trial. these include the observation of all the evidence in sequence with time to absorb and think through the issues. these advantages are commonly replaced in appellate courts by techniques that focus on the issued identified by skilful advocates.26 already available technologies may permit appellate courts, where appropriate, to reduce the gap that has hitherto existed between the experiences of the trial judge and those of the appellate court. an example of this arose clark v her majesty’s advocate27 in 2000. that was a decision by the appeals court of the high court in scotland. the court quashed the appellant’s conviction for assault and robbery after finding that the presiding sheriff had misdirected the jury. the novel feature of the case was that the misdirection was based not on the words used by the sheriff in his charge to the jury, but rather on the tone of his voice. the court stressed that there was: “… nothing on the face of the transcript itself which would have justified a finding that the sheriff had failed to observe the proper balance in presenting the issues to the jury.”28 yet, after listening to a sound recording of the charge, members of the appellate court: “… formed the clear impression that, when posing a series of rhetorical questions, the sheriff did indeed raise the register which he used and placed the emphasis on certain words in such a manner as to suggest that the answers to the questions would be unfavourable to the appellant. we stress that this 25 abalos v australian postal commission (1990) 171 clr 167; jones v hyde (1989) 63 aljr 349, at 351-352; devries v australian national railways commission (1993) 177 clr 472 at 479, 482-483. 26 state rail authority of new south wales v earthline constructions pty ltd (in liq) (1999) 73 aljr 306 at 327-331, [87]-[88]; fox v percy (2003) 214 clr 118 at 128129, [28]-[31]. 27 clark v her majesty’s advocate, app no c/633/99 (scotland, 26 july 2000). this case is further discussed in g nicholson, “a vision of the future of appellate practice and process” (2000) 2 journal of appellate practice and process 229. 28 clark v her majesty’s advocate app no c/633/99 (scotland, 26 july 2000), at [6]. the denning law journal 66 was a clear impression which we all formed and that the phenomenon occurred repeatedly.”29 in the past, advocates have sometimes complained about such phenomena, then ordinarily improvable. in the future, as in clark, advocates will commonly have access to such result-changing data to be deployed in argument. they will only do so because of advances in technology. the use of technology, in clark (the older technology of a sound recorder) may allow an appellate judge to experience aspects of the original trial almost as if he or she were there. multi-media briefs, in the future, may provide an appellate judge with a direct hyperlink to a video-recording of the critical moments in the trial, as opposed to being confined to written references to the transcript page. such new technology will obviously have an impact on appellate advocacy, providing the advocate with an entirely new range of tools with which to work. but careful judgments will have to be made because of the time implications for the appeal and the occasional risk that the new materials could backfire. obviously, the use of multi-media and hyper-linked briefs, video-link technology and electronic document systems is predicated on the relevant technology being available to judges and the courts who have the requisite skills to access them. the courtroom of the future is likely to look different from the courtroom of today. the advocate of the future will operate in a different environment. examples of what such courtrooms might look like in a decade or so are being explored in innovative projects such as the university of canberra’s ecourt project and the so-called courtroom 21. courtroom 21 is a mock courtroom located at the marshall-wythe school of law of the william and mary college of law in america.30 it is described as the world’s most technologically advanced courtroom. courtroom 21 experiments with new technologies and seeks to determine how such technologies can best be used to improve the legal system. features of courtroom 21 include the smart board interactive whiteboard to facilitate multi-media presentations in court, linked lcd monitors allowing advocates to transmit images directly from their electronic briefs to the monitors of the judges – and quite possibly jurors – and a real-time electronic transcription system. technology such as this is slowly being adopted in courtrooms around the world. advocates starting today will see these and other wonders. 29 ibid, at [6]. 30 see http://www.courtroom21.net http://www.courtroom21.net/ the denning law journal 67 today’s advocates find themselves in a half-way world of those with and without digital skills. some judges in australia are already set up with keyboard and screens on the bench. many counsel now appear at the bar table with these facilities. in perth, western australia, at least one judge, conducting jury criminal trials, uses power point in giving her instructions to the jury. advocates cannot allow themselves to get behind such judicial skills. in the high court of australia during a large native title appeal, the judges were offered the supply of instantaneous electronic access to the record. by majority, the offer was declined politely but firmly. more recently, in a copyright appeal, the high court of australia was shown a play-station cd-rom in operation31. the video game was safely demonstrated from the bar table by an advocate who appeared to have more than a purely professional familiarity with its operations. he was justly rewarded with silk in the next list. what does such technology mean for advocates and for techniques of advocacy? used correctly and skilfully technology can assist an advocate in effectively presenting a case to the court. however, the technology, as such, is no more than a tool to be used. by itself, it cannot transform a losing argument into a winning one. it will not mask or improve factual or legal deficiencies or poor advocacy. even with the development of technology the basic skills of effective advocacy remain the same as they have always been. a flashy power-point summary of arguments, if permitted, will not hide gaps in logic. indeed, the technology may make such gaps more visible, more quickly. yet as judges and jurors increasingly come from generation x (and even later generations) their willingness to sit for hours during tedious oral submissions, unadorned by technical aids and illustrations, will be reduced.32 already studies of jury attitudes have shown generational changes to conventional courtroom advocacy. new attitudes will leap ahead as the technology does. courtrooms cannot be cut off from the skills and interests of the people who serve in them and whom they serve. any discussion about technology and the law must eventually address artificial intelligence, and the potential of intelligent machines ultimately replacing both advocates and judges. would it be possible in the future for the tasks of advocacy and judging to be left to machines using artificial intelligence to produce case outcomes based upon the input of factual case data and an analysis performed through pre-programmed precedent databases? although the idea may seem far-fetched at present, so a few 31 stevens v kabushiki kaisha sony computer entertainment (2005) 79 aljr 1850. 32 m d kirby “delivering justice in a democracy iii – the jury of the future” (1998) 17 australian bar review 113. the denning law journal 68 decades ago did some of the technology that courts and advocates now take for granted and readily envisage. admittedly, it is difficult to conceive of the practice of law ever being left entirely to artificial intelligence, no matter how quickly technology may advance. law is as much an art as it is a science. there is an inherent creativity and an essential human element to both advocacy and judging33. it is difficult to imagine even the most advanced artificial intelligence technology ever being able to replicate the human element that is essential to our justice system. at this stage, it is impossible to conceive of a machine with a will to do justice to human parties. but even if artificial intelligence may not completely replace human advocates and decision-makers, artificial intelligence may well have future applications to aid advocates and judges. every advocate of the foreseeable future will have a mobile voice recognition module which can respond to oral commands and produce instantaneous legal materials, statutory, judicial and academic on demand. all those well known cases you cannot remember just when you need them most will be there the moment they are required. already, artificial intelligence is used to analyse taxation and immigration processes. when the legal criteria are relatively straight-forward, this technology is not far away.34 a final development that should be noted is the increasing importance of the internet to the art of advocacy. the most obvious benefit is that the internet has rendered many physical barriers obsolete. advocates from around the world are now able to communicate easily, share information and learn from each other. hopefully, this growing connectedness will be used by advocates to achieve the positive result of enhancing and developing advocacy skills. the internet has also had a large impact on the conduct of legal research. sir anthony mason, past chief justice of australia, looked towards the future in 1984 when he surmised that: “access to comprehensive library facilities going beyond the mere provision of books is a matter of vital importance to the 33 r harris hints on advocacy (london, stevens, 1882), 3; l p stryker, the art of advocacy: a plea for the renaissance of the trial lawyer (new york, simon & schuster, 1954), 32. 34 m d kirby the judges (abc boyer lectures, 1983), at p 77 describing the “taxman” program in the united states. see l t mccarty, “reflections on taxman: an experiment in artificial intelligence and legal reasoning” (1977) 90 harvard law review 837. the denning law journal 69 bar. no doubt the advent of legal computer services will help to solve this problem.”35 twenty years down the track, he has been proved correct. the use in australia of internet-based research tools such as austlii, bailii, westlaw, lexisnexis and heinonline, to name but a few, has revolutionised legal research. research can now be conducted more quickly and more thoroughly. the internet provides every advocate and every judge with a practically unlimited pool of information. indeed, it is the very immensity of the sources that presents a new challenge to the advocate – how to refine the problem; how to conceptualise the issues; how to limit the sources of essential data; how to ensure that enough time is left to think about the problem and its solution; and not to be overly dazzled by the mass of information that is now at our fingertips from so many sources. yet overseas legal authority should be cited with care. the internet is of enormous value to an advocate if it is used selectively. it is not so valuable if it is used indiscriminately to generate masses of unread or ill considered material. this point was emphasised by sir gerard brennan, another past chief justice of australia. he noted that: “… technology is but a tool for the well trained analytical mind.”36 as today’s judges and decision-makers view with growing alarm the mountains of information provided to courts by advocates to “assist” them in their tasks, a groan can sometimes be heard begging for the return of the days when one of the true skill of the advocate was discernment: the decision to cut-away irrelevant or insignificant materials unlikely to help the decisionmaker to come quickly and readily to the desired outcome. the use of international materials a further development encouraged by the internet has been access to international law to support legal argument. this is another illustration of the way that globalisation is changing the way that advocates and judges approach current issues and problems: 35 a f mason “the role of counsel and appellate advocacy” (1984) 58 australian law journal 537, at p 540. 36 f g brennan introductory address, presented at the australian institute of judicial administration technology for justice conference, april 1998. the denning law journal 70 “once we saw issues and problems through the prism of a village or nation-state, especially if we were lawyers. now we see the challenges of our time through the world’s eye.”37 in australia, the most contentious debate regarding international law concerns its use in constitutional interpretation, particularly where such law expresses the international law of human rights. this debate has also been particularly public and vigorous in the united states.38 one recent australian example of the controversy may be found in the different opinions on this issue expressed by justice mchugh and myself in al-kateb v godwin.39 my own view is that international law is a legitimate influence upon domestic legal and constitutional development.40 municipal judges ultimately derive their authority from a national constitution. they are bound to uphold that constitution. they cannot give preference to unincorporated international law over the clear requirements of their national law, specifically the law of the constitution.41 within this limitation, however, international law can be an important and persuasive influence. being exposed to the approaches adopted, and the ideas considered, by judges elsewhere, who have faced similar legal questions, can only expand and enhance judicial thinking. it is an extension of comparative law. all wisdom is not necessarily local. international material may provide important and persuasive insights into common problems. ultimately, it is 37 m d kirby through the world’s eye (2000), xxv. 38 p m wald “the use of international law in the american adjudicative process” (2004) 27 harvard journal of law and public policy 431; j h wilkinson iii, “the use of international law in judicial decisions” (2004) 27 harvard journal of law and public policy 423; r b ginsburg, “a decent respect to the opinions of [human]kind: the value of a comparative perspective in constitutional adjudication”, keynote address to the 2005 annual meeting of the american society of international law 1 april 2005). 39 al-kateb v godwin (2004) 119 clr 562. the more recent united states examples include atkins v virginia 536 us 304 at 347-348 (2002) and lawrence v texas 539 us 558 at 576 (2003). see eg h koh, “international law as part of our law” 98 american journal of international law 43 (2004). 40 m d kirby “international law – the impact on national constitutions” (7th annual grotius lecture), lecture delivered to the annual meeting of the american society of international law, washington d.c, 30 march, 2005. 41 minister for immigration and multicultural and indigenous affairs v b (2004) 219 clr 365, at 424-426, [169]-[173]; al-kateb v godwin (2004) 219 clr 562, at 625, [179]. the denning law journal 71 up to the individual judge to decide on the value and usefulness of such material within the context of each case. the use of international materials by an advocate can enhance submissions and provide a useful point of reference for the reasons of an appellate court. such materials will become more important in future years. the quickening pace of globalisation makes it inevitable that the law will increasingly become more international. municipal law will increasingly be influenced by the content of international law. given, however, the differing views of judges as to the value of such materials in analogous reasoning, advocates contemplating the use of international law materials do well to keep in mind the “rule” of advocacy commending knowledge of the court and of the judges deciding the case. in a multi-member court, including judges who may hold differing views on such topics, discernment is demanded. the advocate must at once secure the agreement of the judge who is interested in, and influenced by, such sources whilst avoiding irritation to the judge who is antagonistic to such materials, regarding them as an invitation to legal heresy.42 in the united kingdom, the enactment and commencement in 2000, of the human rights act 1998 (uk) has meant that the use of the european convention on human rights and other sources of international human rights law in advocacy is now less controversial. indeed, it is now virtually required. being relevant to the duty of judges it is now within the duty of advocates.43 books are written to aid the advocate in this new territory.44 such books must be in the modern advocate’s library. it is not only in the contentious area of domestic constitutional interpretation that international or comparative law can play a role in the contemporary courtroom. advocates before the high court of australia have often referred to comparative law materials from other jurisdictions to advance their submissions. over the years, the sources of comparative material in australia have gradually widened beyond the traditional 42 see eg the views of mchugh j at al-kateb v godwin (2004) 119 clr 562 at 589, [63], declaring as “heretical” the opinion that the australian constitution is now to be read in the context of international law, including the international law of human rights. 43 a (fc) v secretary of state for the home department [2005] 2 ac 68 at 109-110, per lord bingham of cornhill at [41] citing international transport roth gmbh v secretary of state for the home department [2003] qb 728, per simon brown lj at 746, [27]. 44 a p lester and d pannick (eds), human rights law and practice (2004). see also s joseph, j schultz and m castan (eds), the international covenant of civil and political rights – cases, materials and commentary (2nd ed, oup, 2004). the denning law journal 72 references to english law. they now extend to new sources both in the common law world and beyond. australian courts are not alone in recognising the potential value of comparative law materials. for example, lord steyn recently observed that: “the law lords expect a high standard of research and presentation from barristers … for example, if the appeal involves a statutory offence we would expect counsel to be familiar with … comparative material from, say, australia and new zealand.”45 whilst material from other jurisdictions is not binding on a municipal court it will, in the same way as international law, frequently provide an illuminating point of contextual reference. in the future, with physical distances becoming less relevant to advocacy and the law increasingly international and available on line, we can expect both advocates and judges to refer to authorities from new sources around the world and to do so more frequently. the arrival of female advocates i have left to last a development exemplified by the life of ann ebsworth herself. one of the most significant developments in appellate advocacy over the past fifty years has been the arrival of female advocates. in australia, it was not until 1905 that grata flos greig became the first woman admitted to legal practice. it would take a further 52 years before miss roma mitchell, in adelaide, became the first woman to be appointed as queen’s counsel. the young miss mitchell had earlier become the first female practitioner to be recorded as appearing in the high court of australia. she appeared in 1937 as junior counsel in maeder v busch.46 it was a patent suit. there was no gender element whatever in the case. in the way of those times, junior counsel for the plaintiff was simply named as ross. but roma mitchell appeared in the glory of her full name to show that she had arrived. the law reporter was sufficiently surprised, or impressed, by her appearance on the record to draw the distinction. it was not until the following year, 35 years after the first sitting of the high court of australia, that a female 45 quoted in c booth and m du plessis, “home alone? – the us supreme court and international and transnational judicial learning” (2005) 2 european human rights law review 127, at pp 133-134. 46 maeder v busch (1938) 59 clr 684. the denning law journal 73 advocate is recorded as having a “speaking part” in the argument of an appeal. miss joan rosanove briefly addressed the high court of australia as junior counsel in briginshaw v briginshaw.47 she too appeared in the reports in her full name. in melbourne today a set of counsel’s chambers are named after joan rosanove. this month the prime minister of australia opened in adelaide the new federal courts building named for roma mitchell. in many australian law schools women now account for over half of the graduating law students. for the past few years the majority of legal practitioners being admitted in new south wales have been women.48 women such as dame roma mitchell and justice mary gaudron, to name but two, have made a large contribution to the development of australian law. the most recent appointment to the high court of australia is justice susan crennan, formerly chairman of the victorian bar and later a judge of the federal court of australia. inevitably such women lawyers become role models for countless women following. likewise in england, women such as ann ebsworth, have been pioneers. they have left a lasting mark on legal practice. they have a place in legal history because they were there first. nevertheless, in the sphere of advocacy this change is happening slowly. whilst the number of female barristers is growing in australia, there is still a considerable disparity between males and females in terms of numbers at the bar. in new south wales, for example, the most populous australian state, only 14.7% of barristers and 3.2% of senior counsel are female.49 a recent study in australia showed that there are considerable differences between male and female barristers in terms of the nature of work undertaken. one of the interesting findings of this study was that male barristers were significantly more likely than female barristers to nominate appellate work as an area of their practice.50 that self-identification is borne out by my observation. in the ten years that i have served on the high court of australia, there have been comparatively few female advocates with “speaking parts.” statistics compiled by the registry of the high court of australia reveal that in 2004 a total of 161 counsel appeared before the court in appeal hearings. of these, seven were women. this number increases somewhat in relation to special leave applications, where 51 of the 634 counsel appearing before the court were female. in 2004, therefore, fewer than 7% of the advocates 47 (1938) 60 clr 336 at 379. 48 i taylor and c winslow, “a statistical analysis of gender at the nsw bar” (winter 2004) bar news 20, at p 20. 49 ibid, at pp 25-26. 50 ibid, at pp 23-24. the denning law journal 74 appearing before the court, in appeals, summonses or special leave applications, were women. one hundred years after the first woman was admitted to legal practice in australia it is difficult to understand why there is still such a gap between the numbers of men and women appearing as advocates before the highest court. the reasons would seem to lie deep in legal cultural and professional attitudes and practices. the registry of the high court of australia has collected the following statistics as to the number of female advocates appearing in matters heard by the high court during 2004 and 2005. these figures include women appearing as either senior or junior counsel. the comparison of the last two years shows that there has been an increase in the number of appearances of women and a near doubling of the proportions from 7.5% to 13%. but the base figure remains low and the statistics do not reflect “speaking parts.” male counsel 2004 2005 female counsel 2004 2005 special leave applications 634 1027 51 127 appeals & single judge 154 477 7 70 total 788 1504 58 197 in the twelve years before my present appointment, when i served as president of the court of appeal of new south wales, the position was no better. on an impressionistic basis, proportionately, it was probably worse. it may have improved in that court since 1996. in 1996 there were no women judges of appeal in new south wales. now there are two in a court of thirteen, although women judges of the state supreme court sometimes participate as acting judges of appeal or judges in the state court of criminal appeal. why is it that senior female advocates are still the exception in appellate advocacy? justice michael mchugh suggested that: “the inescapable conclusion is that it is a product of the discriminatory, systemic and structural practices in the legal profession that have been well-documented in recent years and which prevent female advocates from getting the same opportunities as male advocates.”51 51 m h mchugh, “women justices for the high court”, speech delivered at the high court dinner hosted by the western australia law society, 27 october 2004. the denning law journal 75 the practices referred to include the prevailing masculine culture of bar, the difficulties of reconciling some aspects of life at the bar with family responsibilities, and the continuing impact of patronage on briefing decisions. these elements combine to produce a sometimes aggressively male environment in which it is not entirely surprising to find a lack of women. it need not be so. as justice mary gaudron used to say when a member of the high court of australia, although there may be genetic factors at work in skills of communication, there is no evidence that the relevant genes reside on the y chromosome. the standard response to these statistics, showing continued female under-representation in the top work of advocacy in australia (reflected also in most other countries of the common law) is simply to urge the need for patience. some take the view that it is only a matter of time before women, who have only recently begun entering the profession in numbers equivalent to men, rise through the ranks by virtue of merit. but how much time is required? it is 68 years since the first female appeared in a case before the high court of australia. it is 43 years since the first australian woman was appointed queen’s counsel. despite the passage of so many years, here we are in the twenty-first century still talking about the need for women to just wait patiently for equal opportunity to become a reality in advocacy before our courts. does this disparity matter? in my opinion, it does. at its most basic level, unjustifiable discrimination of any form should be a matter of concern to every member of the affected profession. when this differentiation is occurring within our own profession the problem becomes even more pressing.52 we should be concerned about gender disparity because it does have significant practical implications. women are not just men who wear skirts.53 women bring a different perspective to the practice and content of the law. inevitably it is reflective of their different life experiences. given the importance of our legal systems to the development of a fair and just society, it is critical that the best and the brightest are encouraged to take up 52 baroness hale of richmond, “making a difference? why we need a more diverse judiciary” (2005) 56 northern ireland legal quarterly 281 at 282; b mclachlin, “equality and the judiciary: why should we want more women judges?” [2001] public law, 489. 53 m d kirby, “women in the law – what next?” (2002) 16 australian feminist law journal 148, at p 154. see also, “will women ever be equal?” (november 2004) the national jurist 18 at 20-21, showing that the picture emerging in australia is repeated in the united states. the denning law journal 76 the profession of law. the existence of barriers to participation in the law, based on gender, ultimately has consequences for both the development of the law and society as a whole. in countries such as australia and the united kingdom, where judges are normally appointed from the ranks of senior advocates, the lack of senior female advocates also has important consequences for the composition of the senior judiciary. if the number of women appearing as appellate advocates before the highest courts continues to be so low, it is likely that women will continue to be under-represented in future judicial appointments. this has consequences for public confidence in the judiciary as a branch of government able to make effective and just decisions on behalf of the entire community. it also has consequences for the way cases tend to be viewed in court, for the way courts of justice are perceived, for the insight that women can sometimes give for the resolution of issues in a case54 and for the perception that women often bring to the disadvantages faced by other vulnerable groups in society – such as indigenous people, social minorities, drug dependent people and homosexuals.55 it is no coincidence, i think, that a recent comprehensive survey of homophobia in australia revealed that discriminatory attitudes are markedly less prevalent amongst australian women than they are amongst men56 – especially older men of the type who are now occupying, or aspiring to, judicial appointment. i do not know whether the same is true in britain. however, as a homosexual man myself, and a judge, it is data that makes me sit up and pay attention when i consider the composition of the judiciary in australia. what can be done to improve the number of women advocates? there is no single, easy solution that will ensure equal opportunities for women as advocates. a number of recent initiatives have been tried in australia. they address some of the practical issues confronting female advocates. two examples include the push for equitable national briefing policies in the large legal firms and by government clients and the introduction of an in-home emergency child care scheme launched by the new south wales bar association. it is also important to examine practical ways of modifying the culture at the bar so that it becomes a more welcoming environment for female advocates. it is sometimes said in the medical profession that surgeons are the least likeable of the specialists – they are commonly 54 see eg u v u (2002) 211 clr 238, per gaudron j at 246, [28]. 55 see a (fc) v secretary of state for the home department [2005] 2 ac 68, per baroness hale of richmond at 174, [237]. 56 m flood and c hamilton, “mapping homophobia in australia”, australia institute webpaper (july, 2005). accessed at www.tai.org.au http://www.tai.org.au/ the denning law journal 77 regarded by their colleagues as more vain, less communicative and more macho in their attitudes. no doubt this is a stereotype. yet it is often mentioned. are advocates the law’s surgeons? if so, is there anything that can be done to correct this feature of legal practice? or do we just have to keep telling female advocates to steel themselves and be a little brutal back? it is a big ask. the advent of female advocates, and the considerable achievements of some of them like ann ebsworth, constitute a significant development in the practice of appellate advocacy in my lifetime. after all, it has taken centuries to get to the point we are at now. addressing the imbalance between male and female advocates, and ensuring that all advocates are provided with opportunities based upon their ability and not their gender, race, age or sexuality will remain a challenge into the future for judges and all members of the legal profession. as much, i suspect, in britain as in australia. new challenges in appellate advocacy so this is where we are. over the past decades there have been many significant changes affecting advocacy including appellate advocacy. these include procedural changes as appellate courts strive to cope with increasing workloads, technological developments that have provided advocates with new tools with which to work, and an increasing number of female advocates. as the pace of globalisation and technological developments increase in the practice of law, in britain and australia, the future will undoubtedly bring still further challenges in the practice of advocacy. yet the fundamental purpose of advocacy remains the same. plato once said that “rhetoric is the art of ruling the minds of men.” this holds as true in the modern age as it did in the ancient world, even if today we would include women, as plato neglected to do. the legal environment in which advocates operate will change. the tools at hand will continue to develop beyond contemporary recognition or imagination. yet the fundamental challenge of an advocate is constant to persuade the minds of others to meet in agreement with one’s argument. the terrors of advocacy, especially for the young or inexperienced, remain the stimulus of each succeeding generation of advocates as they rise to address decision-makers. the joys of advocacy, after a day in court when the tasks have been well and skilfully done, particularly when crowned with success, are greater than virtually any other vocation can promise – a heady mixture of intellect, emotion and drama sure to get the adrenalin flowing. the challenges of advocacy are greater today than ever. the denning law journal 78 it is timely for us, in honour of ann ebsworth, to gather to reflect on these terrors, joys and challenges. she like all of us, knew them all in due season. that we can do this together, as advocates and judges from the opposite sides of the world, and still share so much in common, is a tribute to the barristers and judges of this city over eight centuries. they established a tradition – the tradition of the english bench and bar. that tradition spread until it was shared in the countries in which live and more than a quarter of humanity. this is still the case today, long after empire. it is an enduring legacy. it speaks of the rule of law, of human rights and fundamental freedoms. we should cherish links between the lawyers of britain and australia. we can learn from each other. we can keep and refine the best of the old traditions and skills. and we can make the traditions better, juster and more welcoming to all. it is our destiny as human beings constantly to strive for greater rationality and progress. advocacy is not only an ancient, honourable profession, venerable with tradition. it is a dynamic, adaptive art and vocation. it aspires to improve itself by adjusting to new ideas about justice, by using new technology to bring justice more efficiently to more people and by adjusting its culture and values so that all with training and talent may share in its exciting opportunities and enjoy its rewards. for her perception of these truths and for her contribution by example and teaching, we honour a vital vocation by honouring ann ebsworth. we value her memory. her colleagues recall her life with respect. her friends remember her with love and gratitude. appellate advocacy new challenges the dame ann ebsworth memorial lecture london, tuesday 21 february 2006 dame ann ebsworth remembered the “rules” of appellate advocacy procedural changes the electronic revolution the use of international materials the arrival of female advocates new challenges in appellate advocacy prerogative powers: new labour's forgotten constitutional reform? keith syrett" described by one of its chief architects as "the most ambitious and extensive programme of constitutional reform and modernisation this century",l the labour government"s proposed package of constitutional change has prompted much debate among public lawyers2 and political commentators alik~. yet, while the new government ostensibly seeks to "renew our politics" and criticises the retention of "traditions well after they have outlived any useful purpose",4 its ministers continue to conduct important affairs of state by means of prerogative powers derived from those possessed by tile monarchy prior to tile constitutional settlement of 1688. this article explores the themes underpinning the constitutional programme of ''new labour", evaluating their compatibility with the royal prerogative. in the light of an apparent unwillingness on the part of the executive to instigate reform in this context, tile potential of parliament and tile courts to "modernise" the prerogative is exan1ined; and finally, methods by which such reform could be effected should the political will exist are analysed. prerogative powers and the "blairite constitution" the programme of constitutional reform launched by the labour government has attracted some criticism from those who, while in sympathy with the changes lecturer. norwich law school. university (!feast anglia. i am deeply indebted to liz barham both for her invaluable research andfor the many lively discussions we have had on this topic. all errors, however, remain my sole responsibility. l lord irvine oflairg l.c., opening address to conference on constitutional reform in the uk, cambridge (i7 january] 998). 2 see university of cambridge centre for public law, constitutional reform in the united kingdom: principles and practice (] 998). 3 see, inter alia, a. barnett, this time: our constitutional revolution (1997); p. riddell, parliament under press7ite (i998), chapter 5. 4 labour party, new labour new life for britain (] 996), pp.3, 3]. iii the denning law journal overall, point to the absence of a coherent statement of underlying philosophy and ultimate objectives.5 accordingly, it is difficult to identify a distinctive new labour theory of the state which might be of assistance to public lawyers in evaluating the appropriateness of existing institutions, processes and principles within the "new constitutional settlement" for which the prime minister has called.6 nevertheless, a munber of central, interlocking themes can be identified as informing new labour thinking, discourse and policy on reform of the institutions of government; and through an analysis of these it is possible to form some conclusions on the overall shape of the "blairite constitution". at the very heart of the new labour "project" lies a philosophy of modernisation. as the party's election manifesto makes clear, this is seen as a logical progression from the internal changes made under blair's leadership,7 and it now provides a fundamental justification for key elements of the government's programme.8 constitutional reform often labelled "democratic renewal,,9 forms an integral aspect of this, with social and economic reconstruction seen as inextricably linked to such changes.to the objective of modernisation thus underpins a number of the reform proposals; this is perhaps most explicit in the case of changes to the house of lords and the establishment of a select committee on modernisation of the house of conunons, but is also apparent in proposals for the "renewal of local 5 see a. barnett, "constitutional possibilities" (1997) 68 political quarterly 361. the nearest equivalent to a comprehensive statement of the principles underpinning the blair government"s constitutional project is the report of the joint consultative committee on com·tilutionalreform issued by the labour and liberal democrat parties in march 1997, which interestingly recommends that "the new government should make an early declaration setting out the principles behind its programme of constitutional reform and outlining the more open and modern democracy it seeks to create" (para. 86). 6 a. blair, speech delivered in cardiff, 15 july 1994, quoted in barnett, 57jpra.n.3, p.256. 7 labour party, new labour because britain deserves better (1997), p.5: "we have modernised the labour party and we will modernise britain". 8 see, eg, a mayor and assembly for london (cm. 3897, 1998), para. 1.5: "this government was elected with a mandate to modernise britain and bring our political and administrative arrangements up to date". 9 a. blair, "democracy's second age", the economist, 14 september 1996, p.33. 10 see blair, ibid. p.3s; p. mandelson and r. liddle, the blair revolution (1996), pp.1516, 192. ] 12 preroga tive powers and new labour democratic government"," new fonns of government for londonl2 and devolution. 13 taken overall, the avowed intention is that "the programme will give the united kingdom a modern constitution fit for the 21st century". 14 a second key principle of the constitutional programme is that of decentralisation. this is linked to the previous theme in that it rests upon a critique of the "old labour" belief "in the wisdom and power of the centralised state", in contrast to the view that "modernisation ... requires a new decentralised and devolved style of politics".ls the creation of a scottish parliament and welsh assembly, renewal and innovation in local government, the establishment of a mayor and assembly for london and potentially elected regional assemblies in englandi6 all reflect the belief that "there is too much power centralised in the hands of too few people". 17 the construction and renovation of institutions which operate at a distance from those which have traditionally governed a centralised, unitary state is symptomatic of a broader objective of democratisation. this is partially expressed, especially in the context of devolution and local government, as "moving decision-making closer to the citizen",18 but it also entails a shift from "top-down" political machinery to a "bottom-up" approach based around wider participation, consultation and public involvement in policy-making and service delivery. such thinking informs the use of referenda (on government for scotland, wales and london); the publication of 11 department of environment, transport and the regions, consultation paper on local democracy and community leadership (1998), especially chapter 1. 12 supra. n.8, paras. ll, 1.5, 1.7. 13 seea voicefor wales (cm. 3718, 1997); and especially scotland's parliament (cm. 3658, 1997), para. 4.2. 14 scotland's parliament, supra. n.13, para. 1.6 is mandelson and liddle, supra. n.lo, pp.27, 16. 16 these have evidently been ruled out for the present see a. gray and b. jenkins, ''new labour, new government? change and continuity in public administration and government 1997" (1998) 51 parliamentary affairs iii at 117. 17 joint consultative committee on constitutional reform, !mpra. n.5, para. 6. 18 a voicefor wales, supra. n.13, para. 3.2. 113 the denning law journal draft legislation and greater pre-legislative scrutiny; 19 new mechanisms within local government such as citizens" juries, deliberative opinion polls and standing citizens" panels;20and the creation ofa "people's panel" to involve the public in the delivery of services and the operation of the citizen's charter.21taken together with possible electoral reform, such initiatives can be seen as pluralistic in nature, appropriate for a government which purportedly "celebrates diversity,,22and advocates the creation of "different centres of power" as a way to "release ... creative and innovative energy".23 methods by which the public can be given a voice in decision-making also form part of a theme of citizen empowerment. this is closely linked to a perception that the public has become disaffected with politics, partly because of its polarised nature, and partly because "people feel no ownership, no stake in much of the political process" since it is too remote and centralised.24 blair has therefore called for a "stakeholder politics"2s in which power is brought closer to people through the policies of decentralisation discussed above. such democratic empowennent foons part of a move away from the individualistic, market-oriented philosophy associated with the conservatives towards the creation of "a modern notion of citizenship [which] gives rights but demands obligations",26 concretely manifested by the incorporation of the european convention on human rights into domestic law. it is notable that new labour rhetoric explicitly defines the public as "citizens rather than subjects".27 a final theme, once again inextricably intertwined with each of the others, is that 19 select committee on modernisation of the house of commons, first report, the legislative process, h.c. 190 (1997-8), paras. 19-30. 20 supra. n.ii, chapter 4. 21 see cabinet office news release, announcing launch of "service first" to replace citizen's charter programme, 30 june 1998. 22 mandelson and liddle, .mpra. n.l 0, p.197. 23 a. blair, new britain (1996), p.312. 24 idem. 2s ibid. chapter 36. 26 ibid. p.218. 27 mandelson and liddle, s71pra. n.l 0, p.210. 114 prerogative powers and new labour of accountability. 28new participatory mechanisms offer "citizens" the opportunity to hold national and local government to account, as weli as articulating their views; while devolution proposals are explicitly justified as a means of "extending democratic accountability"29 and "addressing the democratic deficit'~o to these policies should be added proposed freedom of information legislation, the objective of which is stated as "to encourage more open and accountable government";31 and a manifesto promise to review ministerial accountability "so as to remove recent abuses",32 evidently underpinned by the view t11at"there is little or no genuine accountability to parliament for ministers' actions".3] it should be apparent, even from this relatively cursory analysis, that the continued existence and use of prerogative powers by government is fundamentally at odds witll new labour thinking on constitutional issues. the most striking contradiction is surely between the rhetoric and policies of "modernisation" and the antiquity of the prerogative, as the common law "residue" of powers fonnerly possessed by the monarchy "from the time of the norman conquest down to ilie revolution of 1688".34it is difficult to see how a goverrunent employing a discourse of "democratic renewal", embedded within a forceful critique of ilie anachronism of many political institutions/5 can justify activities taken under such a source of auiliority. prerogative powers conflict with the new labour "project" in several oilier respects. originating in the monarchy, and now exercised primarily by ministers in the name of the crown, iliey epitomise the "top-down" tradition which has characterised british constitutional struchrre, in which "real power continues to flow 28 see especially joint consultative committee on constitutional reform, supra. n.5, para. 4: "democratic government should ensure that those who hold power in the name of the people are accountable to the collective wishes and interests of the people". 29 supra. n.14, para. 6.2. 30 supra. n.18, para 1.4. 31 yourrighttoknow(cm. 3818,1997), para. 1.2. 32 supra. n.7, p.33. a revised ministerial code was issued in july 1997. 33 mandelson and liddle, .\7ipra. n.lo, p. 188. 34 a. dicey, introduction to the study of the law of the constitution (1885), p.42!. 3s see particularly blair, .\7ipra. n.9, p.33; mandelson and liddle, supra. n.10, pp.183-9. 115 the denning law journal from the top of the pyramid to its base".36 the powers are centralised in the hands of a few members of the executive (and particularly the prime minister) at the apex of the political system, thus violating notions of pluralism and diffusion of power. the prerogative is "democratised" only in the limited sense that most powers are vested in ministers elected every four or five years by universal franchise; there is no element of popular participation in particular activities taken under its authority hence "citizen empowerment" in tins context is negligible, especially given the close connection between the prerogative and subjecthood,37 which seems inappropriate to modern notions of citizenship.38 finally, as tile next section of this article will show, accountability for the exercise ofthese powers is very limited, resulting in a "democratic deficit" seen by critics as highly significant because of the importance of many of the functions carried out under the authority of the prerogative.39 however, despite its evident incompatibility with new labour thinking, reform of the royal prerogative does not currently fonn part of the government's programme.40 this was confirmed by the prime minister himself when, in reply to a written question from a liberal democrat mp as to plans "to increase democratic involvement and accolmtability"in areas of government covered by the prerogative, he stated fuat "there are no plans at present to legislate on matters dealt with under the royal prerogative".41 indeed, new labour has already shown its willingness to use one particular prerogative power that of management and regulation of fue civil service to political advantage, both in reversing the most controversial exercise of 36r. austin, "administrative law's reaction to the changing concepts of public service" in p. leyland and t. woods (eds.), administrative law facing the future (1997), p.9. 37 see 1. chitty, a treatise on the law qf the prerogatives qf the crown (1820), p.iii: "the prerogative is not the iron tie of unbridled power: it holds the subject in the silken chain of mild subjection". 38 see c. vincenzi, crown powers. sll~iects and citizens (1998), pp.2-3. 39 for a discussion of the range of prerogative powers, see 8 ha/sbury 's laws (4th ed., 1974), para. 889ft among the most significant and controversial are those of patronage; "keeping the queen's peace"; defence of the realm and emergency powers; the conduct of foreign and diplomatic affairs (including treaty-making, declarations of war and peace and the issue of passports); management and regulation of the civil service; the appointment of the prime minister and the summoning and dissolution of parliament; and the prerogative of mercy. 40 save where such reform is incidental to specific issues which may be addressed by legislation; for example, on the civil service see infra. n.97 and text. 41 official report (b.c.) 12 march 1998, vol. 307, col. wa 279. 116 preroga tive powers and new labour this power by the thatcher government,42 and in making contentious appointments of special advisors to downing street. 43 such a stance contrasts sharply with previous labour pronouncements on the issue notably the rather vague commitment in the last election manifesto to "end ministerial misuse of the royal prerogative",44 the position taken by the party's national policy forum,45 and (perhaps most significantly from a "new labour" standpoint) the comments of the present home secretary in 1994 that "the royal prerogative has no place in a modem western democracy ... we should aim for a situation where all powers exercised by the executive, and by the monarch, are based upon statute".46 it seems apparent that, while the transition from "old" to "new" labour may have been marked by an increasing radicalism on many constitutional matters, refonn of prerogative powers47 is no longer considered a subject worthy of political debate or of parliamentary time.48 parliament and the courts: mitigating the democratic deficit? 42 by restoring the right to union membership at g.c.h.q. see official report (h.c.) 19 may 1997, vol. 294, cols. wa 13-14. 43 an amendment to the civil service order in council 1982 allowed alistair campbell and jonathan powell to undertake executive responsibilities previously performed by civil servants: see official report (h.c.), 2 june 1997, vol. 295, col. wa 96 . 44 labour party, it's time to get britain working again (1992), p.24. 45 a new agendafor democracy (1993). 46 j. straw, "abolish the royal prerogative" in a. barnett (ed.), power and the throne (1994), pp.125, 128. 47 this is despite the evidence of a survey reported in the sunday times ("labour mps want debate on monarchy", 14 september 1997), which showed 39% of labour backbenchers in favour of reform of the prerogative. 48 most recently, the independent think-tank demos, regarded as influential upon new labour thinking and policy, has proposed a depoliticisation of the monarchy. as part of such reform, a monarchy act would be passed, transferring residual political powers away from the monarchy to a number of other institutions: see t. hames and m. leonard, modernising the monarchy (1998), pp. 23-6. the demos proposals focus upon those areas in which the monarch continues to have a personal role in constitutional matters, rather than the wider issue of executive actions taken under the authority of the prerogative; nevertheless, it is worthy of note that the government has sought to distance itselffrom them see "blairite group seeks vote on do we want king charles?", the times, 7 september 1998. 117 the denning law journal it appears, therefore, that there is a substantial contradiction between the continued existence and exercise of ministerial powers derived from the royal prerogative and many of the central principles underpinning labour's constitutional project; yet refonn of this area of the constitution does not presently seem to fonn part of the government's plans. in view of the executive's reluctance or unwillingness to act in this area, it may be asked whether either of the other branches of government, as presently constituted, are capable of responding to the usage of prerogative powers in a manner which might render them more compatible with the modernised constitutional settlement seemingly envisaged by the blair administration. (a) parliament parliamentary oversight of the exercise of prerogative power is limited by a number of factors. the effectiveness of scrutiny of prerogative action as with all other exercises of ministerial authority is severely constrained by party loyalty, enforced through the whip system. individual ministerial responsibility for decisions made under statute or the prerogative has been described as containing elements of "ambiguity and confusion",49with the ultimate sanction of resignation only enforced when the support of the prime minister and parliamentary colleagues is lost; while answerability to parliament is circmnscribed by ministerial control over infonnation which enables a selective account of decisions and events to be constructed, despite the provisions of the ministerial code.50 these weaknesses are exacerbated by the lack of time available for debates and questions both on the floor of the house and in select committee. these are familiar criticisms of parliament's inability to hold the executive to account. however, the role of the legislature in respect of prerogative powers is even more heavily circumscribed than the foregoing discussion suggests. many of the functions perfonned by government under the authority of the prerogative, such as matters relating to defence of the realm and international diplomacy, are politically sensitive by their very nature and are accordingly unlikely to be the subjects of full account in parliament. moreover, erskine may lists a number of 49 public service committee of the house of commons, ministerial accountability and responsibility, he 313-1 (i995-6), para. 2. so the obligation of ministers to provide full and accurate information to parliament lay, of course, at the heart of the scott inquiry: see a. tomkins, "government information and parliament: misleading by design or by default?" [1996] p.l..472. 118 prerogative powers and new labour topics falling within the prerogative, upon which, by convention, questions may not be raised.51 the result of this is that disclosure of infonnation on the exercise of prerogative powers may be minimal. 52 parliament is, therefore, severely constrained in its ability to become involved in the exercise of prerogative powers. such weakness is, of course, highly advantageous to government and provides an incentive to utilise prerogative, as opposed to statutory powers, since they will be subject to reduced scrutiny, both before and after the decision or action.53 for its part, however, there seems to be little prospect of the legislature taking the initiative to "democratise" the prerogative. in the absence of government support, the opportunities for backbench mps to initiate legislation to curtail the prerogative are scarce and the chances of success almost nil;54while it is undoubtedly significant that the most recent commons debate on the general use of prerogative powers took place on an adjournment motion at 2:20am.55 furthennore, although there have been calls for investigation of the prerogative by select committee, 56 no such action has been takerr7 moreover, it is questionable whether any such review is likely to be wholly effective, especially given the government's ability to control the release of infonnation.58 all that 51 parliamentary practice (21 st ed., ed. c. boulton, 1989), p.288. 52 see a parliamentary statement by the former prime minister: "it is for individual ministers to decide on a particular occasion whether and how to report to parliament on the exercise of prerogative powers" : official report (h.e.) 1 march 1993, vol. 220, col. wa 19. 53 see a. leseuer and m. sunkin, public law (1997), p. 270. such an analysis is, unsurprisingly, not shared by those in ministerial office see official report (h.c.) 21 april 1993, vol. 223, cols. 487-492. 54 see the discussion of the commonwealth of britain bill, infra. n.86 and text. 55 official report (h.e.) 21 april 1993, vol. 223, cols. 485-492. 56 ibid. col. 487. 57 it is unclear whether issues relating to the prerogative will fall within the purview of the new select committee on the modernisation of the house of commons. during the debate upon its inception, it was stated merely that the committee would examine the means by which ministers were held to account: official report (h.e.) 22 may 1997, vol. 294, col. 907. 58 particularly pertinent in this context is the select committee investigation into the banning of trade unions at g.e.h.q .. the government refused to permit the director ofg.c.h.q. and a union representative to give evidence see employment committee, first report, hc 238 (1983-4), paras. 6-7; and further leseuer and sunkin, f>11pra. n.53, chapter 17. 119 the denning law journal parliament can realistically achieve, given the dominance of an executive anxious to retain and use its prerogative powers, is a very weak fonn of scrutiny of actions taken under the authority of the prerogative once they have already occurred. (b) the courts in recent years, the courts have shown a willingness to subject the exercise of prerogative powers to increased judicial oversight. the g.c.h.q. case59 established that decisions taken under the authority of the prerogative were in principle reviewable upon the same basis as those made by virtue of statute; and in a number of subsequent cases, the courts have been prepared to investigate the manner in which prerogative powers are exercised.60 the crucial factor now detennining whether a governmental decision or action is reviewable is not the source of the power there is no "logical reason why the fact that the source of the power is the prerogative and not statute should today deprive the citizen of that right of challenge to the manner of its exercise which he would possess were the source of the power statutory";61 but whether the subject matter involved is of such nature as to be justiciable.62 in expanding the reach of judicial review to cover the manner of exercise of the prerogative, the courts may be seen to be demonstrating an awareness of the necessity to modernise and render properly accountable this source of executive power for example, in the g.c.h.q. case, lord roskill expressed concern that the development of administrative law might be hampered by "harking back to ... the clanking of medieval ghosts of the past" and criticised the "source" test of reviewability on the basis that both statutory and prerogative actions were executive acts and therefore that "to talk of that act as the act of the sovereign savours of the 59 couneil of civil service unions v minister for the civil service [] 985] a.c. 374. 60 e.g. r v secretary of state for foreign and commonwealth affairs, ex parte everett []989] qb 8] 1; r v secretary of state for the home department, ex parte bentley [1994] qb 349; r v criminal injuries compensation board, ex parte p [1995] ] all e.r. 870; r v ministry of defence, ex parte smith [1996] ] all e.r. 257 (c.a.). for a discussion of the role of the courts in this area, see d. pollard, "judicial review of the prerogative in the united kingdom and france" in leyland and woods, !mpra. n.36, pp.297-309. 61 lord roskill, !mpra. n.59 at 4]7. 62 lord scarman, ibid. at 407. 120 prerogative powers and new labour archaism of past centuries".63 the growth of judicial activism in this context is also underpinned by a general perception of the inadequacies of parliament as a check upon the executive, characterised by the present lord chancellor's extra-judicial statement that "the consequences of the "democratic deficit" ... have been, to an important degree, mitigated by the rigours of judicial review",64 and echoed by several other senior members of the judiciary65 and academic commentators~6 in the specific case of prerogative powers, the clearest exposition of a role for the courts in compensating for the shortcomings of parliament appears in the dissenting judgment of lord mustill in the fire brigades union case: "in recent years ... the employment in practice of... specifically parliamentary remedies has on occasion been perceived as falling short, and sometimes well short, of what was needed to bring the performance of the executive into line with the law and with the minimum standards of fairness implicit in every parliamentary delegation of a decision-making function. to avoid a vacuum in which the citizen would be left without protection against a misuse of executive powers the courts have had no option but to occupy the dead ground in a manner, and in areas of public life, which could not have been foreseen 30 years ago".67 clearly, therefore, the potential exists for the courts to utilise the judicial review jurisdiction in such a way as to alleviate the lack of accolmtability which attaches 6j supra. n.59 at 417. compare the approach of the court of appeal in r v secretary of state for the home department, ex parte northumbria police authority [1988] i all e.r. 556, in which authority for the existence of a prerogative of "keeping the peace" was traced back to the proclamation of humbert walter the justiciar (1195) and the statute of winchester (1285) see purchas l.j. at 566. 64 lord irvine of lairg qc, "judges and decision-makers: the theory and practice of wednesbury review" [1996] p.l. 59. 65 e.g. sir 1. laws, "judicial remedies and the constitution" (i994) 57 m.l.r. 223; sir s. sedley, "governments, constitutions and judges" in g. richardson and h. genn (eds.), administrative law and government action (1994). 66 see m. radford, "mitigating the democratic deficit? judicial review and ministerial accountability" in leyland and woods, !>7tpra.n.36; g. ganz, "criminal injuries compensation: the constitutional issue" (1996) 59 m.l.r 95. 67 r v secretary of state for the home department, ex parte fire brigades union [1995] 2 all e.r. 244 at 268. 121 the denning law journal to the exercise of prerogative powers, and by so doing, to render this area of executive action more modernised and transparent. indeed, the increasingly interventionist approach of the courts in this context and elsewhere has led some to discern the emergence of a "surrogate political process'xisfunction for judicial review, in which individuals and groups dissatisfied with, or excluded from, conventional political channels, can articulate issues and concerns which are not otherwise addressed.69 if this assessment is accepted, judicial review would seem to represent a viable mechanism for "opening up" acts taken under the authority of the prerogative to scrutiny, debate and to a limited extent participation by the public,70 in a manner which is largely unachievable through the parliamentary process. yet it is surely important not to overstate the capability of the courts to "democratise" and "modernise" the prerogative. while the familiar assessment of judicial review as "sporadic and peripheral" may now require qualification in the light of the considerable increase in its incidence in recent years,71 it remains the case that its contribution to the control of central government and the development of constitutional principle is necessarily limited by the relatively small number of cases which come to court.72 in the context of the prerogative, the role of judicial review is likely to be further restricted by the nature of the powers, which confer very general discretion upon ministers and which lack the "objectives" which can be discerned when a decision or action taken tmder statutory authority is challenged. 68 the phrase is that ofr. stewart, "the reformation of american administrative law", (1975) 88 harvard law review 1667 at 1670. 69 see particularly d. oliver, "underlying values of public law" in m. taggart (ed.), the province of administrative law (1997), p.241: "the courts are taking on a role as a forum for political debate and settlement of disputes with a political dimension a grand inquest of the nation forum in response to the increasingly obvious inability and unwillingness of the house of commons to do so". 70 for a discussion of the restricted role of judicial review in enhancing participation, see p. craig, public law alld democracy in the united kingdom and the united states of america (1990), pp.16]-2. 7] see s. de smith, h. woolf and j. jowell, judicial review of administrative action (5th ed., 1995), paras. ]-002 and 1-033. 72 it is argued by l. bridges, g. meszaros and m. sunkin (in judicial review in perspective (1995), p.ll) that "the volume of judicial review litigation is tiny by contrast to the scale of administrative decision making", with challenges to central government amounting to just over 25% of the total (ibid. pal). 122 http://www.ingentaconnect.com/content/external-references?article=0017-811x(1975)88l.1667[aid=5080205] http://www.ingentaconnect.com/content/external-references?article=0017-811x(1975)88l.1667[aid=5080205] http://www.ingentaconnect.com/content/external-references?article=0017-811x(1975)88l.1667[aid=5080205] prerogative powers and new labour the consequence of this is that it may be more difficult for the courts to justify intervention, particularly on grolmdsof "irrationality",73 although it is clear from ex parte smith that this ground is available.74 it has also been argued that the absence of an underlying philosophy of administrative law and an overriding statement of individual rights to which the courts can have recourse in judicial review cases "has left our courts singularly ill-equipped to adjudicate effectively on the use of prerogative powers".?5 in this context, the imminent incorporation of the european convention on human rights into domestic law may offer a framework allowing a more coherent rationale for judicial intervention to be developed.76 the speech of lord mustill in the fire brigades union case points to further difficulties entailed by the assumption of such a role by the courts, supplementing labour's constitutional reform project. his lordship stressed the need for sensitivity on the part of the "parliamentarian, admini strator and judge if the delicate balance of the unwritten mles evolved ... in recent years is not to be disturbed";?7 while lord irvine has similarly called for "judicial self-restraint" to be shown.78 these remarks clearly indicate the reluctance of the judiciary to violate the doctrine of the separation of powers, especially in areas which have a high policy content, as will be the case with many exercises of the prerogative.?9they demonstrate a discomfort with the principle upon which any judicial involvement in "modernising" the 73 g.c.h.q., supra. n.59 at 410-411 (lord diplock). ?4 supra. n.60. the court of appeal found, however, that the threshold of irrationality had not been crossed in this case (see sir thomas bingham m.r. at 266). 75 vincenzi, s1/pra. n.38, p.60. 76 for a discussion of a "rights" -based approach to judicial review, see f. donson, "civil liberties and judicial review: can the common law really protect rights?" in leyland and woods, supra. n.36. 77 supra. n.67 at 268. 78 supra. n.64 at 75-8. 79 a number of executive functions under the prerogative have been held by the courts to be non-justiciable see g.c.h.q., supra. n.59 at 418 (lord roskill); ex parte everett, s1lpra. n.60 at 820 (taylor l.j.) the effect being to preclude judicial intervention in these areas. however, in ex parte smith [1995] 4 all e.r. 427 (q.b.d.) at 446, simon brown l.j. stated that "only the rarest cases will today be ruled strictly beyond the court's purview"; although the greater the policy content of a decision, the more hesitant a court will be in holding it to be irrational see supra. n.60 at 264 (sir thomas bingham m.r.). 123 the denning law journal prerogative would seem to depend that the courts should strive to enhance the quality of democracy within the political system; an approach which is rendered highly problematic both by the lack of democratic legitimacy of an unelected judiciary and by unequal access to the judicial review process.80 reform of the prerogative for the reasons outlined above, it seems unlikely that parliament will be in a position to reform the prerogative in the absence of government support for such a move; while the ability of the courts to do so is restricted and the constitutional appropriateness of such action highly questionable. accordingly, it would appear that there is little chance of reform as long as the government remains uncommitted. however, speculation as to the possible fonn of any changes to prerogative powers remains a valuable exercise, not least because it is important to draw a distinction between proposals of a radical nature and those which are perhaps more readily achievable, should the labour position on this issue alter. labour's unwillingness to refonn the royal prerogative contrasts starkly with proposals advanced by the liberal democrats. this is of particular interest, given the co-operation between the two parties on constitutional matters, reflected in the establishment of a joint consultative committee on constitutional reform prior to the election,8l and subsequent liberal democrat representation on the cabinet subcommittee on the constitution. the party proposes a set of reforms which are radical in that the ultimate objective is the drawing up of a written constitution, which will come into effect following a referendum; however, as a preliminary step it is envisaged that a reform bill covering the "key issues of constitutional reform" will be enacted.82the bill provides that certain defined areas of the royal prerogative the ratification of treaties, the dissolution of parliament and the choice of the prime 80 see r. cotterrell, "judicial review and legal theory" in richardson and genn, supra. n.6s, p.18; leseuer and sunkin, !mpra. n.s3, pa8!. discussing the fire brigades union case, ganz concludes that "when the unelected judiciary feel obliged to repair the malfunctioning of the democratic process there is something badly wrong with the state of our democracy", supra. n.66 at 100. 8] supra. n.s. 82 liberal democrats, the reform bill 1997. 124 prerogative powers and new labour minister shall be abolished and taken over by parliament. 83remaining areas of the prerogative will also be abolished, with "all executive powers [being] derived from the constitution or from laws passed by the appropriate legislature".84 0 the r proposals seeking to address the issue of prerogative powers also do so in the broader context of the creation of a written constitution. one of the most vociferous campaigners for the reform of the prerogative has been tony benn, for whom it is a necessary concomitant of republicanisation. on the basis that "the house of commons is the only elected part of parliament and democratic principles should require that all prerogative powers be controlled by that house",85 benn's commonwealth of britain bill86provided for the ending of the constitutional status of the crown87and the transfer of powers presently exercised under the authority of the prerogative to a president acting subsequent to a resolution of the house of commons.88 the bill offered a list of such powers, together with a "residual" provision allowing the president "to exercise other executive powers not conferred by statute",89 and required prerogative instruments of a legislative character to be brought in as bills, with those of an administrative nature being laid before the house of commons for approval.90 similarly, the draft constitution produced by the institute of public policy research,91 while retaining the monarch as head of state, established the constitution as the sole foundation for all executive power, thereby abolishing the residue of prerogative powers.92 certain situations presently governed by the 83 clauses 3, 5 and 6 respectively. provision is made for a fixed parliamentary term off our years (clause 4), but dissolution may also be voted for subsequent to a vote of no confidence. 84 liberal democrats, constitutional declaration (1996), article 5(1). 8s t. benn and a. hood, common sense (1993), pp.45-6. 86 h.c. bill 103 (1992-3). the bill was not moved on second reading. 87 ibid. clause 37. 88 ibid. clauses 14 (1) (a) and (b). 89 ibid. clause 14 (1) (c). 90 ibid. clauses 14 (2) and (3). 91 the constitution of the united kingdom (1991). 92 ibid. article i. 125 the denning law journal prerogative were defined and made subject to parliamentary approval;93 while the government was given a residual executive power to act within the provisions of the constitution.94 it is, of course, inevitable that any programme of constitutional reform based around the creation of a written constitution would need to cater for the significant executive powers currently exercised by virtue of the prerogative and, given the "democratic deficit" previously identified, it is equally unsurprising that all of the projects outlined above envisage improved mechanisms of accountability, whether to parliament or to the judicial organs entrusted with oversight of the constitution. however, it does not follow from this that reform of the prerogative can only be achieved within the framework of a written constitutional document.95 it would be perfectly possible to enact ordinary legislation covering such matters so that authorisation for executive activity in these areas derived from statute, rather than the colmnonlaw; indeed, as lord browne-wilkinson observed in the fire brigades union case, "the constitutional history of this country is the history of the prerogative powers of the crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body".96 reform ofthis type would be of a gradual, "step by step" nature, with particular categories of prerogative power progressively receiving parliamentary attention. in the present climate, the nmction most likely to be given statutory authorisation would appear to be regulation of the civil service, with future legislation in this field having been endorsed by the joint consultative committee,97 and in the commons by the minister for public service.98 the proposed civil service act would give statutory basis to the existing civil service code and orders in council, and could 93 e.g. treaty-making (article 51); declarations of war and the deployment of armed forces (articles 122 and 123); national security (article 126) and declarations of emergency (article 128). 94 ibid. article 40. 95 a similar argument is advanced in the demos pamphlet, supra. n.48, p.2s, which observes that "the perceived difficulties associated with the drafting of a single written constitution should not serve as the pretext for avoiding the depoliticisation of the monarchy". 96 supra. n.67 at 2s4. 97 supra. n.5, para. 84. 98 official report (h.c.) 4 june 1997, vol. 295, col. 375. 126 prerogative powers and new labour provide for the express abolition of the prerogative in this context.99 other areas of the prerogative which could be relatively easily "translated" into statute might include the ratification of treaties, for which a model is already available in the form of lord lester's treaties (parliamentary approval) bill;looand the issue of passports, particularly in view of the acknowledgment by the previous government that "refusal of passport facilities to united kingdom nationals is confmed to certain well defined categories ... although the issue of passports is a discretionary power under the royal prerogative, it is as constrained as any statutory power might be". 101situations where government may need to respond rapidly and flexibly to events, such as declaration of warl02 or the "prerogative of keeping the queen's peace within the reahn",103present somewhat greater difficulty, especially since it is difficult to anticipate every evenhlality which might arise, but could be addressed within statutes granting "the executive enhanced powers, broad discretion to act and respond to the exigencies of the situation and ability to legislate further". 104 various objections might be raised to such a programme of reform. perhaps the most familiar of these is based upon the impracticability of defining the precise scope and extent of the prerogative, given its residual nahlre, and the "complexity" of the relationship between statutory and prerogative powers. this has been used by ministers as a justification for refusing to enumerate the number of actions taken tmder its authority, and therefore implicitly to resist calls for reform. 105the argument 99 fda news (july 1997, p.2), quoted in k. theakston, "new labour, new whitehall?" (1998) 13 public policy and administration 13 at 24. for further discussion, see n. lewis, "a civil service act for the united kingdom" [1998] p.l. 463. 100 h.l. bill 27 (1995-6). 101 e. wardle, official report (h.e.) 21 april 1993, vol. 223, col. 489. it should also be noted that directive 68/3601eec gives european union citizens the right to be issued with an identity card or passport valid for travel through and between member states. 102 a prerogative power specifically pinpointed in straw's call for reform, supra. n.46, p.126. 103 as in the northumbria police authority case, .\1ipra. n.63. 104 d. bonner, emergency powers in peacetime (1985), p.l0. los see officialreport (h.e.) 21 april 1993, vol. 223, col. 490; personal communication by letter from cabinet office (12 march 1997); both citing a. bradley and k. ewing, constitutional and administrative law (now 12th ed., 1997), p.274. 127 the denning law journal which flows from this is that, because prerogative powers cannot easily be catalogued, "there is no sensible option of a blanket approach"106which could catch all of the powers; and in view of this the status quo is preferable. it is submitted that this reasoning is disingenuous; as previously observed, there is no difficulty with isolating particular areas of the prerogative which might be the subject of legislative reform problems of defining its overall scope should not be used to justify a refusal to address these functions. it is true that dealing with the "residue" of prerogative powers not otherwise given statutory basis is more problematic, but it should be possible to draft legislation abolishing all remaining royal prerogativesi07 (without providing a list, which could prove incomplete and allow the prerogative to "resurface" in a particular area) and requiring government to derive legal authority for those acts and decisions not otherwise covered by statutory provision from such an act. although legislation of this type cannot be entrenched under present constitutional arrangements, political and public opinion is surely likely to render it all but immune from repeal. arguably, a more telling criticism of a project which seeks to give statutory basis to prerogative powers is that it will make little difference in practice to the manner in which those powers are exercised. on this analysis, the need to provide government with very wide discretionary powers, particularly in "emergency" situations, severely limits scmtiny of executive action, whether by parliament or the courts. los moreover, parliamentary oversight of ministerial activity, even under statutory authority, is likely to remain weak as long as executive dominance of the legislature persists. the grip of the executive needs to be loosened either by means of electoral reform, to reduce the chance of one party holding an overwhelming 106 wardle, supra. n.iol, col. 492. 107 express statutory abolition of the prerogative in the defined areas discussed above would also seem to be required, given the reluctance of the courts to hold that a power has been abolished by implication (see the northllmbria police authority case, !mpra. n. 63), coupled with the absence of a doctrine of extinction of such powers by long disuse: see vincenzi, supra. n.38, pp.24-5. los indeed, it might be argued that the courts presently take a "harder look" at executive actions based upon ancient prerogatives than they would at those which might be taken under the authority of a broadly-worded modern-day statute, duly passed by a democratic legislature hence, statutory enactment might actually reduce the likelihood of successful challenge in judicial review. such a view, however, would seem to underestimate the willingness of the courts to compensate for the inadequacies of parliamentary scrutiny of executive activity, whatever its legal authority: see !mpra. n.64 and text. 128 prerogative powers and new labour majority; or by reform of parliament itself, especially the whip system. clearly, there is considerable validity in this critique; however, a number of points may be raised in response. firstly, the enactment of legislation covering various areas of the prerogative would itself provide a valuable opportunity to examine and debate the nature and extent of the powers claimed by the executive. secondly, any legislation so passed could contain provisions granting parliament a greater degree of involvement in particular executive decisions and acts subsequently taken under its authority, perhaps on the model of the treaties (parliamentary approval) bill, which provided for affirmative resolution of each house of parliament in particular circumstances,109 with negative procedure applicable in other cases. this would provide an opportunity for concerned tv1ps to require ministers to justify their actions, although in the absence of any reforms to strengthen the position and independence of the legislature, the likelihood of defeating the government must remain minimal. finally, and most significantly, while placing these powers on a statutory footing might not necessarily render executive accountability to the courts or parliament completely comprehensive, it would at least endow them with the democratic legitimacy which the royal prerogative lacks. conclusion this last-mentioned factor alone would seem to be good enough reason for a government which is purportedly committed to democratisation and modernisation to grasp the nettle of refonn of the prerogative. while total transparency, accountability and participation in respect of the exercise of these powers may remain elusive goals, legislative enactment without the need to go as far as the drawing up of a written constitution, which is not part of the blairite reform agenda offers the opportunity for a democratically-elected body to scrutinise and recast these ancient common law powers in a manner appropriate to the creation of a "constitution for the future, not the past". 110 at present, however, there seems little sign that even a reform-minded executive is willing to abjure the considerable advantages it gains from the possession of vague, flexible and largely unaccountable prerogative powers. 109 i. e. where treaties affect existing laws or private rights, affect the taxpayer or cede territory: supra n.loo, clauses 3(1) and (2). 110 joint consultative committee on constitutional reform, 51jpra. n.5, para. 14. 129 unincorporated associations: property holding, charitable purposes and dissolution the denning law journal 131 denning law journal 2009 vol 21 pp 131-139 case commentary pre-nuptial agreements under scrutiny macleod v macleod [2008] ukpc 64 judith bray∗ the background to the case traditionally, pre-nuptial settlements have not been enforceable in english law.1 the scepticism of the courts has largely been based on public policy and a reluctance to allow the parties to a marriage to enter into any contract which purports to deprive the courts of its jurisdiction. there is also an underlying presumption that parties to a marriage do not intend their agreements to form legally binding contracts and finding adequate consideration may be difficult unless the agreement is incorporated in a deed.2 a distinction is made between agreements drawn up either before or on marriage and which contemplate or provide for the separation of husband and wife at a future time which are always void3 on public policy grounds and those agreements which provide for or regulate a present separation which have been upheld by the courts.4 parties to a marriage cannot by contract prevent the court from intervening on the breakdown of marriage and making financial provision and property adjustment orders, but where the parties have drawn up an agreement the courts may consider the agreement and uphold it. ∗ llb, llm (lond), barrister, senior lecturer in law, university of buckingham 1 hyman v hyman [1929] ac 601; see x v y (y and z intervening) [2002] 1 flr 508 where munby j articulates the current attitude of the english courts towards prenuptial agreements. 2 see balfour v balfour [1919] 2 kb 571 raising the presumption that agreements between family members are not intended to be legally binding. 3 see n v n (jurisdiction: pre-nuptial agreement) [1999] 2 flr 745 and westmeath v westmeath (1830) 1 dow & cl 519. 4 see wilson v wilson (1845) 14 sim 405 and hyman v hyman [1929] (n 1) where the husband had covenanted to pay his wife two lump sums and £20 per week for the rest of her life if she agreed not to bring proceedings against him to compel him to pay more. as a result of a change in the law, the wife was able to bring divorce proceedings against her husband and in addition she had the right to claim maintenance from him the court upheld her claim. case commentary 132 nearly thirty years ago in edgar v edgar,5 the court of appeal upheld an agreement under which a wife had agreed not to seek any further capital or property provision from her husband in exchange for the payment of £100,000 and declined to uphold an order from the court below which had granted her a lump sum of £760,000. although there was unequal bargaining strength between the parties the court placed weight on the fact that the wife had had the benefit of independent legal advice and had not been prejudiced. this decision was not universally welcomed by the judiciary.6 the main problem with the approach of the english courts is that such an agreement may not be enforceable so it leaves uncertain the question of financial provision. the courts may uphold the agreement in part or in whole or they may decide to add extra terms.7 this is not satisfactory and adds uncertainty when it is uncertainty that the parties are seeking to avoid. it also restricts the extent to which parties to a marriage can order their own financial affairs and although parties to a marriage may take extensive legal advice about such an agreement as stephen cretney wrote in 2003 “you cannot make such an agreement proof against the exercise of the overriding judicial discretion.”8 he adds “it is almost as if we insisted that every time a business or professional relationship is dissolved, the terms should be approved by the court.”9 at a time when the courts have moved towards taking equal division of assets as a starting point for financial provision on the breakdown of marriage10 it is hardly surprising that more couples are choosing to address the financial aspects of marriage breakdown before the relationship has ended and sometimes before the marriage has taken place particularly where the differential between the parties’ wealth and assets before marriage is marked. 5 [1980] 1 wlr 1410. 6 see dicta from hoffman lj in pounds v pounds [1994] 1 flr 775: “ the result of the decision of this court in edgar v edgar [1980] 1 wlr 1410 and the cases which have followed it is that we have, as it seems to me, the worst of both worlds. the agreement may be held to be binding, but whether it will be can de determined only after litigation and that may involve, as in this case, examining the quality of the advice which was given to the other party who wishes to resile. it is then understandably a matter for surprise and resentment on the part of the other party that one should be able to repudiate an agreement on account of the inadequacy of one’s own legal advisers over whom the other party had no control and of whose advice he had no knowledge.” 7 in ng v kr [2008] (pre-nuptial contract) [2008] ewhc 1532 (fam). 8 stephen cretney “the family and the law: status or contract?” (2003) 15 child and family law quarterly 413. 9 ibid, at 413. 10 white v white [2001] 1 ac 256. the denning law journal 133 baroness hale commented in macleod v macleod11 that there had been an increase in calls for legislative recognition of pre-nuptial agreements following the decisions of white v white,12 miller v miller and mcfarlane v mcfarlane13 which could be prompted by a perception that equality within marriage is wrong in principle. she commented “the more logical solution would be to examine the principles applicable to ascertaining the fair result of a claim for ancillary relief, rather than the pre-marital attempt to predict what the fair result will be long before the event.”14 however parties may not wish to wait for these principles to be addressed and may prefer to order their financial affairs themselves and by way of contrast many other jurisdictions have upheld prenuptial agreements more readily and in two recent cases15 heard before the english courts the claimants were both originally from jurisdictions where pre-nuptial settlements are enforceable.16 if proper safeguards were put into place which protected both parties, particularly a party in a weaker position then parties to a marriage should have the option of concluding their own pre-nuptial agreement in the knowledge that it will be upheld should the marriage later break down. the attitude of the english courts now seems outdated and in need of reform. the facts of the case in macleod v macleod17 the couple had entered into three agreements concerning their financial arrangements both while they stayed together and also on the breakdown of their marriage. the agreements were drawn up at different stages in their marriage. when the marriage eventually broke down the husband claimed that these arrangements were binding but the wife claimed that the court should not be bound. the agreements limited the wife’s financial claims on her husband and it was in her interests to argue that the courts should be able to apply the relevant statutory provisions freely.18 the husband however wanted to argue that the agreements had been entered into freely by the parties facilitate by legal advice and the agreements should 11 [2008] ukpc 64. 12 above n 10. 13 [2006] 2 ac 618. 14 above n 10. 15 see ng v kr (pre-nuptial contract) above n 7 and macleod v macleod n 10. 16 in ng v kr, ibid, the court heard evidence about the validity of the prenuptial agreement in both french and german law. in macleod v macleod [2008], ibid, the court heard evidence about the validity of prenuptial agreements under the laws of florida. 17 above n 11. 18 manx matrimonial proceedings act 2003 similar to provisions under ss 23, 24, 25 of the matrimonial causes 1973. case commentary 134 therefore be binding on the parties. the parties were both born and brought up in the united states, marrying in florida on valentines day in 1994. in 1995 they moved to the isle of man where they lived for the duration of their marriage. the couple had five children born between 1995 and 2001. both had been married before to different partners and there was a significant disparity in age and wealth between the parties. at the time of the marriage the husband was aged 49 and very wealthy, whereas the wife was aged 27 and had very few assets of her own. three separate financial agreements were drawn up between the parties during the marriage and each was intended to create legal relations. the first agreement, a pre-nuptial agreement, was made on their marriage and both parties were separately advised by a lawyer. the couple agreed that, regardless of where they might live, the agreement should be construed in accordance with the laws of the state of florida.19the second agreement had lapsed and was not at issue before the courts. the third agreement was made seven years after their marriage in 2002, but reflected many of the terms of the first agreement made on the parties’ wedding day in 1994 and it also included a number of new provisions. this agreement was made when the marriage was already in difficulties and like the second agreement was a post-nuptial agreement. the substance of the first agreement was that each spouse retained the separate property which they had brought into the marriage if they later divorced and each waived his/her right to claim any sort of maintenance. ownership of after-acquired property was to depend on legal title. the third settlement was much more detailed and included the following: a sum of maintenance was to be paid to the wife on the breakdown of the marriage together with a lump sum payment of capital for her to invest; any property owned jointly was to be divided equally between them; a sum was to be set aside to enable the wife to continue with her education and obtain another degree and also a provision that the wife would not be called upon to pay any household expenses out of the sums during the term of the marriage. provision was also made for financial support of the children. by august 2003 the marriage had broken down and the husband issued divorce proceedings in september 2003. the parties remained living in the 19 posner v posner 233 so 2 d 381 (fla 1970) held that both anteand post-nuptial agreements were valid and generally binding. even where there was evidence that the agreement might be a bad bargain it was not enough to set it aside. there is a distinction between an ante-nuptial agreement which is an agreement made in contemplation of marriage and settles property of which the parties to the marriage (or their children) are the beneficiaries. a pre-nuptial agreement is an agreement in contemplation of the failure of the relationship and seeks to legislate for the manner in which the parties’ financial resources should be disposed and what limitations should be imposed. see christopher sharp “pre-nuptial agreements: a rethink required” [2008] family law 741 at 748 the denning law journal 135 matrimonial home together until april 2005 when the wife moved out and the parties agreed that the children should divide their time between them both. the agreements were considered during the application for ancillary relief by the wife. the ancillary relief proceedings the ancillary relief proceedings were heard in june 2006 in the isle of man before the deputy deemster williamson.20 the wife claimed full financial provision and asserted that the three agreements should be disregarded. the husband claimed that the third agreement should be upheld. the deputy deemster applied the manx matrimonial proceedings act 2003.21 his order was very similar to the couple’s final agreement and the wife was granted maintenance on the terms of the agreement but he overturned a provision that when the wife purchased a family home with a lump sum provided by the husband, the house should be held under a trust, declaring ‘the wife’s house must be hers’. he held that it would be wrong for her to live with the uncertainty of losing her home when the youngest child finished fulltime education. this provision was similar to a mesher22 order which allows the court to defer sale of the matrimonial home, usually until the children reach the age of seventeen or when they complete their full-time education. this order has been used less frequently by courts in recent years for the reasons given by the deputy deemster.23 both parties appealed this decision to the appeal court.24 the wife claimed a right to a larger sum in maintenance and the husband argued that any house purchased by the wife for herself and her children should be held under a trust following the terms of the first and third agreements. the wife’s cross appeal was rejected although the maintenance provision for the children was considered to be too low and was remitted to the trial judge. the appeal of the husband was also rejected. the appeal to the privy council was made by the husband alone. the sole issue was whether the housing needs of the wife and the children should be catered 20 the deputy deemster is one of four permanent judges of the high court in the isle of man and has jurisdiction over all family matters including divorce and ancillary matters. 21 this section is equivalent to s 25 matrimonial causes act 1973 which lists the factors that the courts must take into account in deciding on an order for financial provision. 22 mesher v mesher [1980] 1 aer 126 ca. 23 b v b (mesher order) fl 462. 24 this is called the staff of government division and it hears appeals both from courts of summary jurisdiction as well as other divisions of the high court. a minimum of two judges will hear the appeal. case commentary 136 for by the lump sum, as ordered by the judge, or whether any property purchased was to be held under a trust, as proposed by the husband. his appeal was based on the enforcement of the 2002 agreement. the privy council the privy council grasped the opportunity to review the validity and effect of separation and maintenance agreements in general. baroness hale repeated the words of lord hailsham lc in hyman v hyman: “the power of the court to make provision for a wife on the dissolution of her marriage is a necessary incident of the power to decree such a dissolution, conferred not merely in the interests of the wife, but of the public, and that the wife cannot by her own covenant preclude herself from invoking the jurisdiction of the court or preclude the court from the exercise of that jurisdiction.”25 it was pointed out that separation and maintenance agreements had been considered by the royal commission on marriage and divorce 1951-195526 where the commission had recommended that a wife should be bound by her covenant not to apply to the court for maintenance for herself unless there was a change in the circumstances and that the husband should also be able to go to court to ask for a variation if their circumstances changed. an undertaking not to apply to court for maintenance for the children would remain contrary to public policy. these provisions were incorporated in a slightly amended form in the maintenance agreements act 1957 and later further amended an incorporated into the matrimonial causes act 1973. these recommendations all relate to those agreements that make provision where the parties have already separated which the court accept can be upheld. there are parallels in manx law. under ss 49-51 manx matrimonial proceedings act 2003 maintenance agreements were upheld as valid where they were maintenance agreements within the meaning of the act.27 on the facts of this case the privy council suggested that it would generally be wrong in principle to interfere with the decision of the court at first instance because in this case 25 above n 1. 26 1956 cmnd 9678 at pp192-195. 27 under manx matrimonial proceedings act 2003, s 50, a financial agreement means provisions governing the rights and liabilities towards one another, when living separately, of the parties to a marriage (including a marriage which has been dissolved or annulled) in respect of the making or securing of payments or the disposition or use of any property, including such rights and liabilities with respect to the maintenance or education of any child, whether or not a child of the family. the denning law journal 137 the deputy deemster had had the opportunity to see the witnesses in person and had heard all the evidence nevertheless the board reached the conclusion that he was wrong in this case. they accepted that the wife was getting far less than she would have been granted under the statutory provisions but she had been party to the agreement and in their view there was no reason to interfere with it. the wife had entered the third agreement freely at a time when both parties foresaw the possibility of separation. the board then allowed the appeal and remitted the case back to the high court for an appropriate trust deed to be drawn up. therefore the privy council, having reviewed the position of the wife and her potential entitlement under the law, decided to uphold the terms of the post-nuptial agreement as agreed by the parties. comment english courts have never formally enforced pre-nuptial settlements when considering financial provision under the matrimonial causes act 1973 although the courts have been prepared to take them into account when assessing financial provision.28 however the fact that they are not enforceable leaves their status uncertain and as pointed out by christopher slade qc in 2008 some would say “they are not worth the paper they are written on.”29 macleod v macleod gave the privy council an opportunity to review this. in the light of some recent cases such as crossley v crossley 30 and k v k31 these agreements have taken on greater significance being one of the many factors under s 25 of the matrimonial causes act 1973 to be considered by the court. in crossley the court of appeal had accepted that a pre-nuptial agreement which provided that neither party would apply for financial provision could be influential in a claim for maintenance by a wife in a short marriage.32 by way of contrast the privy council was prepared to uphold a post-nuptial settlement in macleod but emphatically refused to enforce a pre-nuptial agreement. their view contrasts with the position in a number of other countries such as certain states in the us, canada and germany which all recognise such settlements and are willing to give them effect. the courts in england and 28 see k v k (ancillary relief: prenuptial agreement) [2003] 1 flr 120; m v m (prenuptial agreement) [2002] 1 flr 654. 29 christopher slade qc “pre-nuptial agreements: a rethink required” [2008] family law 741. 30 [2008] 1 flr 1467. 31 above n 28. 32 thorpe lj: “if ever there is to be a paradigm case in which the court will look to the pre-nuptial agreement as not simply one of the peripheral factors in the case but as a factor of magnetic importance, it seems to me that this is just such a case.” case commentary 138 wales view such agreements with scepticism. this suspicion is founded on the longstanding principle that the jurisdiction of the court cannot be ousted by the parties. traditionally it was felt that to agree division of assets before a relationship has broken down or indeed even before the parties have married is contrary to public policy because such the parties appear to be entering the agreement contemplating its downfall. a strong case for reversing this view on behalf of mr macleod was discounted by the privy council who held that it was not open to them to reverse the long standing rule that pre-nuptial agreements are contrary to public policy and thus not valid and binding in the contractual sense. in the event the provision of the post-nuptial settlement allowed his appeal to be upheld. the privy council having reviewed the position in other jurisdictions which uphold pre-nuptial settlements, drew attention to the fact that in most jurisdictions the enforcement of pre-nuptial settlements had been introduced through legislation rather than through judicial decision and as a result the court thought that the legislature was better able to build in the necessary safeguard if such settlements were to be upheld. it was pointed out by baroness hale that the change in the law in florida which would have allowed the agreement between the macleods to be enforced had they remained living there had unusually been introduced through judicial decision rather than legislation. this would seem to be an unduly cautious approach given the facts of macleod and the full disclosure and availability of advice given to the wife on signing the first agreement. the privy council also highlighted the earlier lack of enthusiasm amongst the judiciary for pre-nuptial agreements when invited to respond to the law commission proposals in 1999.33 the main reason for this lack of enthusiasm was the difficulty of full financial disclosure and the need for separate legal advice for each side which would need public finding to be readily available and the fact that any agreement would lose its effect as soon as a child was born to the couple. the privy council noted that the law commission have recently announced their intention34 to examine the status and the enforceability of agreements made between spouses and civil partners (or those contemplating marriage or civil partnership) concerning their property and finances in their 10th programme of law reform and will commence work in september 2009 with a proposed report and draft bill to be expected by september 2012. 33 supporting families: a consultation document: see “ancillary relief reform. response of the judges of the family division to government proposals (made by way of submission to the lord chancellor’s ancillary relief advisory group)” [1999] family law 159. 34 law com no 311 para 2 17. the denning law journal 139 there has traditionally been an understandable distaste in upholding an agreement which may have been forced on one party as a precondition of marriage. this issue was at the heart of the facts of the recent case of ng v kr35 where the husband of a very wealthy german wife sought to have a german pre-nuptial agreement set aside.36 he argued that he had been forced into the agreement without fully understanding the provisions. baron j’s judgment in that case following crossley v crossley37 showed that a prenuptial agreement can be influential and will not be disregarded but the court will not feel it is bound by the provisions. this case highlights the problems faced by practitioners when advising their clients.38 it is not possible to predict how much weight a court will attach to the agreement. it is surely time for a statutory framework to be drawn up for pre-nuptial agreements which combines certainty for all with protection for the weaker party? 35 above n 7. 36 the basis of the husband’s case was the lack of legal advice, the non-disclosure of his wife’s wealth and the lack of provision for the birth of his children and also the fact that it had made no provision at all for either party in the event of divorce. 37 above n 30. 38 see ashley murray “drafting prenuptial agreements: ng v kr” [2009] family law 142 at 145: “for the practitioner, pre-nuptial drafting involves difficult judgments a depth of understanding of fairness within ancillary relief, a crystal ball as to future legislation, and a wealth of experience in reigning in the over-zealous client from attempting to protect too much.” case commentary pre-nuptial agreements under scrutiny macleod v macleod [2008] ukpc 64 judith bray( the background to the case the facts of the case the ancillary relief proceedings the privy council comment “law and literature – the contribution of lord denning the denning law journal 1 law and literature – the contribution of lord denning sir martin nourse* at the beginning of the 21st century an audience consisting mainly of lawyers will not need to be persuaded that the law has a contribution to make to literature or, at any rate, that it has a literature of its own. a hundred years ago it might have been different. the oxford book of english prose, published in 1925, contained extracts from only three reported judgments. by a coincidence, it was in the yale review of the same year that benjamin cardozo’s law and literature first appeared, since when the opinion has been growing, certainly amongst lawyers, that there must be something in it. for myself, the defining moment was the publication in 1965 of louis blomcooper’s the literature of the law.1 more that thirty-five years later, in his margaret howard memorial lecture entitled judges among the literati at oxford in 2001 sir louis confessed to being unashamedly an anthologist of legal writings. if an element of self-deprecation is here to be detected, i would altogether reject it. to be in the company of such as palgrave and wavell is a cause for pride, especially where the sources are so diverse and largely unavailable to the average reader. i read every word of the literature of the law, almost at one sitting. lord birkett’s forward is itself a work of literature, reminding us that it is not only judges who have contributed, but great advocates like john somers and thomas erskine. here is what macaulay said of somers, later lord chancellor under william iii, as junior counsel for the seven bishops in 1688, the greatest constitutional trial in our history: “somers rose last. he spoke little more than five minutes; but every word was full of weighty matter; and when he sate down his reputation as an orator and a constitutional lawyer was established.” but just as the art of the great conversationalists survives only through the pens of their contemporaries, and then only if they have a boswell to record them, so advocacy survives on in the record of the reporter. while advocacy so recorded may itself be literature, the record lacks the voice, the gesture and deportment which contributed to its greatness. not so the report of a judgment which, though its delivery may often have impressed and persuaded, is primarily * former lord justice of appeal, former vice-president, court of appeal (civil division), acting master of the rolls, 2000. 1 (new york: macmillan, 1965). the denning law journal 2 intended to be read. for this reason, when we refer to the literature of the law, we think mainly of those judgments which, by reason of their structure, style and language, can justly be regarded as literary compositions. the notion that judgments ought to be of literary value was regularly articulated by lord campbell in his lives of the lord chancellors2 published in the 1840’s. in assessing their judicial qualities, at any rate of those who held office from the 17th century onwards, he invariably commented on their literary gifts or lack of them. his greatest scorn was reserved for lord eldon. while campbell did not hesitate to place him, as a judge, above all the judges of his own time, acknowledging that “for law he really had a natural genius, which was improved by long, sever, and unwearied discipline”, he said of his neglect of literature: “as a misfortune to lord eldon’s judicial reputation, i must likewise point out his utter relinquishment of literature, from the time when he began to study the law…. i do not now speak of his loss of that caste to which the somersets, the cowpers and the talbots, the companions of swift, addison and pope, had belonged – not to his neglect of fame – but the deprivation of taste which he displayed. having forgotten his modicum of classical lore, and remaining wholly unacquainted with modern authors, he had no images in his mind, and no turns of phraseology, beyond what he picked up for perusing deeds and equity reports. in his latter days he could neither speak nor write grammatically – in so much that people would not believe he had gained a prize at oxford for english composition; and he was actually compared to the roué duke of orleans, who said of spelling ‘we quarrelled at the outset of life, and never made up our differences’. this vandalism impaired not only the grace but the efficiency of his high judicial qualities, and not only deprived him of the benefit of knowing something of public opinion and of the progress of improvement, but really hindered him from arranging and expressing his thoughts so as to do justice to the right conclusions at which he had arrived. the celebrity of lord mansfield and lord stowell, as judges, is in no small degree owing to their having continued to refresh and to embellish their professional labours by perusing the immortal productions of poets, historians and moralists.” 2 (london: john murray, 1868). the denning law journal 3 this effusion notwithstanding, it is reassuring to record that later in his life of lord eldon, lord campbell said: “it is much better, if they cannot unite, that a judge should have law without literature, than literature without law.” since lord campbell wrote there has been a steady stream of english-speaking judges, though a minority of judges as a whole, who have embellished their judgments with a distinctive and attractive style, not usually ornate, that entitles them to rank as literature. in order to show that lord denning was not the only star in the literary firmament of his time, i will mention another name from the second half of the 20th century, whose inclusion in that number would not be denied. i speak of lord justice harman. he was five years older that lord denning, a classical and not a mathematical scholar, an equity rather than a common lawyer. he sat in the court of appeal throughout the 1960’s. in 1957 mr justice harman had to construe the will of george bernard shaw. the opening of his judgment was immediately recognised as a classic of its kind. i do not apologise for reading it again. those of you who know it will certainly enjoy hearing it again. those of you who do not will certainly enjoy hearing it for the first time: “all his long life bernard shaw was and indefatigable reformer. he was already well known when the present century dawned, as a novelist, critic, pamphleteer, playwright and during the ensuing half-century he continued to act as a kind of itching powder to the british public, to the english-speaking peoples, and, indeed to an even wider audience, castigating their follies, their foibles and their fallacies, and bombarding them with a combination of paradox and wit that earned him in the course of years the status of an oracle: the shavian oracle; and the rare distinction of adding a word to the language. many of his projects he lived to see gain acceptance and carried into effect and become normal. it was natural that he should be interested in english orthography and pronunciation. these are obvious targets for the reformer. it is as difficult for the native to defend the one as it is for the foreigner to compass the other. the evidence shows that shaw had for many years been interested in the subject. perhaps his best known excursion in this field is pygmalion, in which the protagonist is a professor of phonetics: this was produced as a play in 1914 and has held the stage ever since and invaded the world of the film. it is, indeed, a curious reflection that this same work, tagged with versicles which i suppose shaw would have detested, and tricked out with music he would have the denning law journal 4 eschewed (see the preface to the admirable bashville),3 is now charming huge audiences on the other side of the atlantic and has given birth to the present proceedings. i am told that the receipts from this source have enabled the executor to get on terms with the existing death duties payable on the estate, thus bringing the interpretation of the will into the realm of practical politics.the testator, whatever his other qualifications, was the master of a pellucid style, and the reader embarks on his will confident of finding no difficulty in understanding the objects which the testator had in mind. this document, moreover, was evidently originally the work of a skilled equity draftsman. as such i doubt not it was easily to be understood if not of the vulgar at any rate by the initiate. unfortunately the will bears ample internal evidence of being in part the testator’s own work. the two styles, as ever, make an unfortunate mixture. it is always a marriage of incompatibles: the delicate testamentary machinery devised by the conveyancer can but suffer when subjected to the cacoethes scribendi of the author, even though the latter’s language, if stood alone, might be a literary masterpiece.this will is a long and complicated document made on june 12, 1950, when the testator was already ninety-four years old, though it is fair to say that it is rather youthful exuberance that the circumspection of old age that mars its symmetry.” sir louis blom-cooper has described lord justice harman as the exponent of the pithy and elegant extempore judgment. as an example and a link between him and lord denning, i read an extract from another of lord justice harman’s judgments included in sir louis’ anthology, campbell discount ltd v bridge,4 though i suspect that this may have been what is know in the court of appeal as and overnight judgment: “i am of the same opinion and though i should like to emulate the laconic terms of the judgment of the county court judge which was expressed in two words, i feel constrained to add a word or two because of the uneasy feeling i have that the position of the law as it stands is not satisfactory…the solution may be that the minority view in cooden engineering was in fact the right one. i do not think anyhow that the discrepancy can 3 (murrieta, california: classic books, 2001). 4 [1961] 1 qb 445. the denning law journal 5 be healed by some rather loose conception of what are called equitable principles. equitable principles are, i think, perhaps rather too often bandied about in common law courts as though the chancellor still had only the length of his own foot to measure when coming to a conclusion. since the time of lord eldon the system of equity for good or evil has been a very precise one and equitable jurisdiction is exercised only on wellknown principles. there are some who would have it otherwise, and i think lord denning is one of them. he, it will be remembered, invented an equity call the equity of the deserted wife. that distressful female’s condition has really not been improved at all now that this so-called equity has been analysed.” that i believe is how the judgment was delivered, though if you look in the law reports, you will find that the references to lord denning and the deserted wife’s equity have been omitted on revision. turning to lord denning himself, it is necessary to remind ourselves of the bare bones of his judicial career. he was appointed a judge of the probate divorce and admiralty division in 1944, being transferred to the kings bench division in october 1945. during his time there he was the judge nominated to hear appeals from pensions appeal tribunals. in october 1948 he became a lord justice of appeal, an office he held until april 1957, when he was appointed a lord of appeal in ordinary. five years later, in april 1962, he returned to the court of appeal as master of the rolls, an office which he held until july 1982. in judging lord denning’s contribution to the literature of the law, it is necessary to distinguish between the periods 1944 to 1962 and 1962 to 1982. by and large there is a noticeable contrast between the style of his judgments in the first period, especially when he was a lord justice, and the style of his judgments in the second, when he was master of the rolls. in lord denning, the man and his times, a contribution by the late professor heuston to lord denning: the judge and the law,5 it is said of the first period: “if the reader of the law reports had not already realised it, there were now many signs of a powerful new mind at work. in many ways the judgments of the fifties are classic denning; there is still enough respect for the precedent, for the analysis of the cases to be full and careful, and the style, clear and vivid, is not yet marred by the self-conscious tricks of the seventies. everyone who remembers those days will have his own 5 j l jowell and j p w b macauslan (london: sweet and maxwell, 1984). the denning law journal 6 recollections of how he reacted to the masterly line of judgments.” of the second period professor heuston said: “denning’s style had always been unusual; by the mid-seventies it was not quite so admired as it had been. the structure of the judgment was as clear and sound as ever, and often praised by his fellow judges, but a certain striving after effect has become noticeable in the style rather than in the arrangement. there were few or no subordinate clauses, and sometimes no verb in the sentences. so the style was lacking in the cadences. also in the terse vivid opening sentence, to which he himself attached so much importance for gripping the reader’s attention, often seemed inappropriate, especially in cases of severe personal injuries. parodies began to appear – sometimes quite amusing.” in a footnote reference is made to grenouille v national union of seamen (1979), which you will find fully reported in the family story.6 other, more recent, commentators have offered similar criticisms of lord denning’s later style. in his margaret howard memorial lecture sir louis blomcooper said, in a section dealing with the colloquial style of the judgment: “no one better exemplifies this category than lord denning whose idiosyncratic style was in fact unique. his penchant for beginning every (well, nearly every) judgment with a simple story had the commendable virtue of appealing to a wide audience, but it tended to grate on the professional ear, at least when delivered orally in court, and even later in written form. this form of judgment was meretricious, in the sense of being showily but falsely attractive.” in the form and language of judicial opinions, a lecture delivered to the annual conference of the society of public teachers of law at glasgow university in 2001, lord roger of earlsferry said: “lord denning is, of course, a subject in himself but not one to be embarked upon here. i shall only say that the famous openings, though great fun, do not, in my view, really work. they strike me as faux naïf – something like the literary 6 (london: hamlyn, 1982). the denning law journal 7 equivalent of the primitive paintings of grandma moses. but grandma moses was not an educated woman, whereas lord denning was a clever and highly educated man. no one ever spoke as lord denning wrote in these passages and no one ever wrote in that way except in fairy stories and tales for children. the style is so contrived that it alerts the reader to the fact that something is afoot” in a footnote lord rodger says that the famous openings are and example of what linguistic scholars call “foregrounding”. i return to the first period. the earliest judgment in which a foretaste of the later style has been detected is james v minister of pensions,7 an appeal from a decision of a pensions appeal tribunal, where mr justice denning said: “gunner james joined the army on july 24, 1941, at the age of thirty-two. in january 1943, he had a swelling on the right side of his neck which gradually spread. he was sent to hospital, when a diagnosis of hodgkin’s disease was made. in april 1943 he was discharged on account of it. he claimed a pension. it was rejected by the minister. in february 1946 he died on account of the disease. his widow claimed a pension. her claim was also rejected by the minister. she appealed to a tribunal who, on september 18, 1946, rejected her appeal. she did not apply to the tribunal for leave to appeal within the six weeks allowed by the rules of the tribunal. on november 21, 1946, the case of donovan v minister of pensions, [(1946), not reported], which was also a case of hodgkin’s disease, was decided in favour of the widow. when knowledge of this decision came to mrs james’s advisers they sought from the tribunal leave to appeal out of time. the tribunal itself and the president of the pensions appeal tribunals refused the application, refusing to extend the time or to grant leave. the widow now applies for leave to appeal.” it will not surprise you to hear that she got it. in the family story lord denning says that the effect of this decision was magical; many men obtained pensions which had previously been refused. he described the pensions appeals as perhaps the most rewarding series of cases in his career, pointing out, it could be said with more than satisfaction, that he was the sole judge – and what was 7 [1947] kb 876. the denning law journal 8 more, a judge from whose decision there was no appeal to the court of appeal or anyone else. for knowledge of the judgment in james v minister of pensions and for much else which follows i am indebted to an article entitled it all started with gunner james by cameron harvey of the university of manitoba, first published in 1983 gazette of the law society of upper canada and reprinted in the denning law journal for 1986. the author said that this judgment, though not entirely in the classic denning style, was the seminal judgment. for myself, i would describe it as a classic example of the first period of lord denning’s judgments. the first judgment of lord justice denning to be found in the law reports is bishopsgate motor finance company ltd v transport brakes ltd,8 a case about the sale of goods in market overt. he started his judgment thus: “i agree. in the development of our law, two principles have striven for mastery. the first is for the protection of property: no one can give a better title than he himself possesses. the second is for the protection of commercial transactions: the person who takes in good faith and for value without notice should get a good title. the first principle has held sway for a long time, but it has been modified by the common law itself and by statute so as to meet the needs of our own times. the modification here in question is one conferred by the common law itself.” what professor heuston described as the “masterly line of judgments” had begun. when you get to the second volume of the king’s bench reports for 1949 you find them coming one after another. they include seaford court estates ltd v asher,9 one of lord denning’s earliest decisions on the construction of statutes. he said: “whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible for them in terms free from all ambiguity. the english language is not an instrument of mathematical precision. our literature would be much the poorer if it were. this is where the draftsmen of acts of parliament have often been unfairly criticised. a judge, believing himself to be fettered by the supposed rule that he mist look to the language and nothing else, 8 [1949] 1 kb 322. 9 [1949] 2 kb 481. the denning law journal 9 laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. it would certainly save the judges trouble if acts of parliament were drafted with divine prescience and perfect clarity. in the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsmen. he must set to work on the constructive task of finding the intention of parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gives rise to it, and of the mischief which is was passed to remedy, and then he must supplement the written word so as to give ‘force and life’ to the intention of the legislature….. put into homely metaphor it is this: a judge should ask himself the question: if the makers of the act had themselves come across this ruck in the texture of it, how would they have straightened it out? he must then do as they would have done. a judge must not alter the material of which it is woven, but he can and should iron out the creases.” perhaps best of all from this volume and the very next decision reported is smith and snipes farm ltd v river douglas catchment board,10 the earliest case in which lord denning propounded is view that a person may enforce an agreement respecting property made for his benefit, although he is not a party to it. his judgment begins thus: “there is in lancashire a river called eller brook which is liable to overflow its banks and the flood the adjoining land. in 1938, in order to prevent the flooding, eleven owners of the land through which the river ran made an agreement with the local catchment board, whereby the board undertook to widen, deepen and make good the banks of the river, and thereafter to maintain them, and the landowners paid a contribution towards the cost. the board did the work and practically completed it by 1940, but they did it so unskilfully that, in the opinion of experts, it was from the first doomed to failure. the landowners, of course, did not know this and set about cultivating the land. the low meadows, which had been rough marshland, were broken up and brought under the plough. crops were sown and harvested. but the banks of the river were not strong enough to stand serious floods. in 1944 they burst. the breach on that occasion was soon closed, but the board’s engineer was unaware of the danger. he 10 [1949] 2 kb 500. the denning law journal 10 reported to the board that ‘the bank is a bad one under any conditions’. in 1945 there was another burst near by, and he reported that ‘this bank is largely composed of sand. i propose to put a machine on to strengthen it as soon as one is available’. but apparently he did nothing, or at any rate nothing effective. the landowners and their tenants went on cultivating the land. they did not know that the banks were doomed failure. then in 1946 the worst happened. serious floods arose, the banks burst, the fields were flooded, and the crops ruined. this action is brought by a tenant of the fields against the board to recover the value of the crops he has lost. the present owner joins in the action, claiming his loss of rent, but the substantial claim is by the tenant company. on those facts it is my opinion that the board broke their contract. it was an implied term that they should do the work with reasonable care and skill so as to make the banks reasonably fit for the purpose of preventing flooding.” it is difficult not to think of that as a model of its kind. not only does it tell you, in little more than a paragraph, what the case is all about and the judge’s view of it is. it does so in the clear and vivid style admired by professor heuston and with a countryman’s feeling for the land. the style is about as far from being staccato as it is possible to be. it is fluid, indeed mellifluous. i have always regarded it as judicial prose of the highest order. there is much to be said for the view that lord denning felt most at home in cases with a country setting. one of his first recorded dissents was in wright v callwood,11 a case where the county court judge had held that the defendant had been negligent in driving calves on to a road. the majority of the court of appeal disagreed. but lord justice denning thought that the judge had been right. he said: “the plaintiff was riding her bicycle, quite carefully, along a road from nantwich to audlem. as she came opposite a gate leading to a farmyard, two calves rushed out, one of them knocked her off her bicycle, and she was injured. she brings this action against the farmer for damages. the calves had been in the field on the other side of the road, and the farmer had gone to fetch them by himself without the help of anyone else. he had driven them out of the field and along the public highway and into the drive leading towards the farmyard. as they were going along the drive, which is only fifty feet long, suddenly a motor 11 [1950] 2 kb 515. the denning law journal 11 lorry in the farmyard started up. the two calves were frightened and dashed back down the drive with the farmer following them. hence the accident. the question is whether the plaintiff can recover.” as the 1950’s went on, the style remained clear and vivid, subordinate clauses were note eschewed and every sentence had a verb. but it is possible to trace a development during those years from the mellifluous prose of smith and snipes hall farm towards the staccato style of the 1960’s and 1970’s. thus in deeble v robinson:12 “mr deeble has a milk round. he sells milk to people at the doors of their houses. he runs his business from a dairy building where he keeps his equipment, refrigerator, spare milk bottles, and so forth, and a stable where he keeps his horse and float. his round is seven streets adjoining the premises. he does not actually have a shop as ordinarily understood. his lease of these premises is coming to an end, and he wants to stay on there. this depends on whether the premises come within the definition of a ‘shop’ in the leasehold property (temporary provisions) act 1951.” this, i am sure you will agree looks forward to beswick v beswick13 in 1966. again, in rands v mcneil:14 “a yorkshire farmer had a dangerous bull. he knew it was dangerous because the bull on one occasion had chased one of his men in the yard. the farmer thereafter kept the bull inside a loose box all of the time. it was kept there untethered. on a later occasion the bull got the farmer himself against the wall of the box and the farmer then took his horns off. the bull was never let out of the box except when the box has to be cleaned out. even the cows were taken into the box for service.” then in slater v clay cross co ltd:15 12 [1954] 1 qb 77. 13 [1966] ch 538. 14 [1955] 1 qb 253. 15 [1956] 2 qb 264. the denning law journal 12 “in derbyshire there has been for well over a hundred years a railway line owned by the clay cross co. we were told that george stephenson himself made it. the company use it to carry limestone from their quarries at crich down to ambergate. it is a small gauge line, only 3 feet 3 inches wide, and is two and a half miles long. on that small line there are two tunnels. one of them, with which we are concerned, is only 8 or 9 feet high and it is just 66 yards long. on february 12, 1953, the plaintiff was walking through the tunnel when she suddenly realised that a train was coming up behind her. she got down on the ground to seek what safety she could but unfortunately the train ran over one of her legs…. she now claims damages against the clay cross co., saying that it was their fault.” the early 1950’s were exciting times. professor heuston has rightly said that everyone who remembers them will have his own recollections of how he reacted. permit me therefore a personal recollection. between 1953 and 1955 i was reading law at cambridge. by that time the dons were up in arms at many of lord denning’s judgments, especially his dissents. not so the students. i remember us passing messages round at the back of the lectures saying such as: “have you read in the times today and seen the latest judgment of hero denning, lj?” one friday evening in february 1955 he came down to address the law society. i have his letter of acceptance still. i remember taking him into the largest room in the old schools, packed out to the limits, almost literally to the extent of people hanging on the rafters. i opened proceedings by saying that to introduce lord justice denning to an audience such as that was rather like going onto the balcony at st peters, rome and introducing the pope. of course it was an outstanding piece of nerve, which only a student could have perpetrated. but the audience seemed to love it and the speaker himself did not demur. before turning to the second period, i must remind you of two passages from lord denning’s books in which he spoke about himself. first, from the discipline of law:16 “at oxford i studied mathematics. no need for words there. the tools i used then were numbers, letters and symbols. they were lifeless things without meaning or sound – necessary tools of the scientist but not of the lawyer. but when i was called to the bar, i had to become proficient with words. i did it by drawing on my reserves of english literature. these i had acquired at the elizabethan grammar school to which i went daily. i had read 16 (london: lexisnexis butterworths, 1979). the denning law journal 13 much of shakespeare and many of our poets and novelists while still at school. all my prizes from the age of 11 were for english. i have them still, bound in handsome leather, with the school crest and the date ad 1569. the titles in succession are the great authors, macaulay, carlyle and milton. reading these and others provided the essentials: a wide vocabulary of words, and understanding of the meaning attached to them by the masters of the language….. next i had to practise continually. as a pianist practises the piano, so the lawyer should practise the use of words, both in writing and by word of mouth….. in chambers, if asked to advise, i took infinite pains in the writing of an opinion. i crossed out sentence after sentence. i wrote them again and again.” we can be certain that when he came to write his reserved judgments in later life lord denning still crossed out sentence after sentence and wrote them again an again. i was once told by his faithful court reporter, miss mavis hill, that the transcripts of his extempore judgments came back to her heavily amended, so as to improve the style. undoubtedly, many of his judgments were works of conscious artistry. in his later years the artistry sometimes appeared to be selfconscious. next, i read a well-known passage from the family story, where he describes “the usual kind” and then “my kind” of judgment: “i start my judgment, as it were, with a prologue – as the chorus does in one of shakespeare’s plays – to introduce the story. then i go on from act to act as shakespeare does – each with its scenes – drawn from real life. but i do it by subdividing my judgment up into main headings (corresponding to the acts) and sub-paragraphs (corresponding to the scenes) – each with a caption – so as to catch the eye. i draw the characters as they truly are – using their real names – so that i never get them mixed up. never plaintiff or defendant, or appellant or respondent. in telling the story, i set out the merits – i rely on them – i do not scorn them. because the merits go to show where the justice lies. i use every argument that appears to me to be valid. i am not afraid of the rebuke, ‘that is mere prejudice’: for i know that only too often it is used only as a way of escape – from the merits. i avoid long sentences like the plague: because they lead to obscurity. it is no good if the hearer cannot follow them. i strive at all costs to be clear. not ambiguous or prevaricating. i refer sometimes to previous authorities – i have the denning law journal 14 to do so – because i know that people are prone not to accept my views unless they have support from the books. but never at much length. only a sentence or two. i avoid all reference to pleadings and orders – unless something turns on them. they are merely lawyer’s stuff. they are unintelligible to anyone else. i finish with a conclusion – an epilogue – again as the chorus does in shakespeare. in it i gather the threads together and given the result.” this passage can be objected to on two grounds: first, the grandiose comparison with shakespeare; second, the implication that “my kind” of judgment is the only kind that is any good. it is important to remember that it was written in 1981, when the author can only have been thinking of later judgments. many of the most famous of these are referred to in it all started with gunner james, where cameron harvey speaks of the impressive array of “openers”, grouping them into nine categories (i will give and example of each): the intriguing opener (“it all started in a public house”); the historical opener (“today we look back far in time to a town or village green.”); the fatal and deadly opener (“a man”s head got caught in a propeller. he was decapitated and killed.”); the “this is the case” opener (“this is the case of three smugglers”); the editorial opener (“counsel for the vendor referred to this case as a comedy of errors. it is no comedy but a history of errors.”); the non sequitur opener (“many years ago sir edward coke had a case about six carpenters. now we have a case about six car-hire drivers.”); the “this is an interesting case” opener (“this is a short but fortunately a very rare point”); the whimsical opener (“a gigantic ship was used for a gigantic fraud.”) the picturesque opener (“in summertime village cricket is the delight of everyone. nearly every village has its own cricket field where the young men play and the old men watch.”) this brings me to lord denning’s old folks. i read from cameron harvey’s article: “there was old herbert bundy of yew tree farm, old mr baker of dunsmore in buckinghamshire, old mrs millward whose will was contested, old mrs annie levenson who had one of the best pitches in the petticoat street market in london, and old mr jones the scrap merchant. but his most memorable work sketch was none other than old peter beswick.” the earliest reference i have found to one of the old folks is not in a denning judgment; it is to “old caleb diplock” in a lecture entitled “the changing civil law” delivered in about 1953. he it was, you will remember, who directed his executors to apply the residue of his large estate for such charitable or benevolent the denning law journal 15 object of objects as they should in their absolute discretion select. because he had used the word “or” instead of “and”, it was held by the court of appeal and the house of lords, much to the disgust of lord denning, that the gift, not being exclusively charitable, was void for uncertainty and, later, that the charities who, in all innocence, had received distributions from the estate must repay them for the benefit of the next-of-kin. it is not possible within the compass of a piece such as this to quote more fully from the later judgments. on the whole they are better known than the earlier ones and many of you will have your own favourites. the narrative introduction to broome v cassell17 is of the highest quality. not is it possible to quote further from the books, the lectures and the profumo report of 1963, in which lord denning took a justifiable pride. i will only say that the family story contains passages of deep poignancy telling of the deaths of his brothers jack and gordon during the great war and his first wife, mary, in 1941. had he written often thus, it would have been vain to blame, and useless to praise him. in literary criticism the contributions of those who have themselves been creative writers (coleridge and eliot are names that spring to mind) have been of special value, not just for their intuitive judgments of others but as an insight into their own compositions. i want to end with a brief consideration of lord denning’s own literary tastes, so far as we can gather from the man and what he has left behind. in that way we may be able to make a surer assessment of his contribution to the literature of the law. as we have heard, he read much of shakespeare and many of our poets and novelist whilst still at school. it seem likely that his tastes were settled by the time he went off to the great war, at any rate by the time he left oxford. the bible and shakespeare apart, he has told us of macaulay, carlyle and milton. much of the rest must be guesswork, both from the authors he quotes or refers to and those he does not. chaucer he certainly admired, bacon and bunyan. he does not mention spenser or any of the elizabethan dramatists other than shakespeare, nor donne (as a poet) or any of the metaphysical poets, nor marvell or dryden, nor in the next century, pope or cowper. in the family story he says, surprisingly, that to him johnsons’s prose, poetry and philosophy are turgid and unreadable. boswell, however, is a favourite. gray he mentions, but not goldsmith. he does not mention any of the eighteenth century novelists, though i suspect that, like lord birkett, he would have admired their prose, sterne particularly. when we get to the next century, wordsworth is a favourite among the romantic poets, not byron or shelley, i would think, perhaps not even keats or coleridge. dickens seems to have been his favourite victorian novelist and tennyson and browning his favourite poets. i doubt he would have had any time 17 [1971] 2 qb 354. the denning law journal 16 for swinburne. among the minors, he liked blunt, clough and christina rossetti and, on a lighter note, ws gilbert and lewis carroll. moving into the twentieth century kipling, binyon, blundon and brooke were favourites. no doubt julian grenfell would have been too, though not, it seems, owen or sassoon. he does not mention masefield. standing back at this point, we could say that lord denning’s tastes in literature were those of a conventional, educated englishman born at the end of the nineteenth century. on desert island discs he chose palgrave’s golden treasury as the book to take with him. knowing what we do of his character and high morality, we can understand that he would not have felt comfortable with the poetry of byron shelley, or swinburne, of each of whom, as an individual, he probably disapproved. but i think it goes further than that. knowing of his affection for milton and tennyson, in whose verse the senses of sight and hearing are so pronounced, though not for the less intellectual senses of smell, taste and touch, and assuming, as i have, that he was not move by poets such as keats, i think we would have to say that his sensibility, though by no means defective, was limited. it must be significant that in the family story he said that he had no ear for classical music. it must also be said that he never caught up with what were then called the modernist poets, whose reputations were established before he was forty: eliot, auden, spender, day lewis, macneice. perhaps that was an opportunity missed. take hinz v berry18 where there is one of his most famous openers: “it happened on april 19, 1964. it was bluebell time in kent.” suppose he had added; “april is the cruellest month.” true, we would have been mightily surprised, but gratified as well. finally, it must be said that the whole of european literature appears to have been to him a closed book. it is a matter of little import that we should have to conclude that lord denning’s tastes in literature were conventional, even ordinary. a cultivated, far less a refined taste, has never been an essential of literary composition. more important are imagination and originality. these he certainly had. in a letter to his brother jack at the front in 1916 he promised to send him one of his lately composed poems. i am not aware that he left any verse behind him. it is difficult to think of him as a poet. but he did have a poetico-dramatic imagination which conjured the settings for his judgments and vivified the players as he, not always others, saw them. as we who remember him so well pass on, i think the later judgments will cease to grate even on the professional ear and the style of fairy stories and tales for children will enlarge their appeal to a more general readership. the superb prose of the earlier judgments, of which i have sought to remind you, must always be admired. 18 [1970] 2 qb 40. the denning law journal 17 if the great end of literary endeavour is to excite the intellect and enthuse the heart, that test is passed. remember that the judgment, though it can be an art form, will always be a minor form, such is the straight-jacket in which it is written. even if the judgments of lord denning the fancy does not roam at will. perhaps his greatest literary achievement is sometimes to charm his readers into thinking it does. sir martin nourse* unincorporated associations: property holding, charitable purposes and dissolution 192 denning law journal 2009 vol 23 pp 192-201 case commentary families need fathers – the limits to litigation re s (transfer of residence) [2010] 1 flr 1785 re s (a child) (transfer of residence: consent order) [2011] 1 flr 1789 mary welstead  in january 2010, a wholly deserving father was granted a residence order. as a consequence s, his twelve-year-old son, would have to leave his mother‟s home and go to live with him and his new family. seven months later, in july 2010, the father left the court in tears having accepted that it was futile to continue with his struggle to activate the residence order. s had indulged in such negative behaviour, described in court as indicative of serious and entrenched parental alienation, 1 that the father gave in to the child‟s demands to remain with his mother, and a consent order was made to that effect. one month later, hhj bellamy, somewhat unusually given the  dr mary welstead phd, ma (cantab), med bsc (econ) (london), cap fellow harvard law school, visiting professor university of buckingham. 11 dr weir, the child psychiatrist who was the expert in re s explained parental alienation in this way: “there are children who show an extraordinary degree of animosity towards a parent with whom they once had a loving relationship. most of these children will show some or all of [a cluster of psychological responses]. within an individual child (and between children in the same family) the presence of the features can vary rapidly over time and place, but in their full manifestation are so surprising and unique as to be unforgettable. the proposed term 'alienation' applies only to the cluster of psychological responses in the child with no need to presume a deliberate campaign of denigration by one parent. there is now research data supporting a multifactorial aetiology for 'alienation' following parental separation, involving contributions from both parents and vulnerabilities within the child.” (re s [2011] 1 flr 1789 at 1800. munby j in re d (intractable contact dispute: publicity [2004] 1 flr 126, preferred dr sturge and dr glaser's concept of 'implacable hostility' to so-called 'parental alienation syndrome' as discussed by wall j in re o (contact: withdrawal of application) [2004] 1 flr 1258. the denning law journal 193 nature of a consent order, decided to recount in full the history of the father‟s attempts over a long period of time to have a meaningful relationship with his son. the judge explained his reasons for doing so: “this has been an extraordinary case. the two court of appeal decisions attracted wide publicity. there has also been significant professional interest. against that background i was persuaded that it would not be appropriate to end this case simply by the court approving an order agreed between the parties. … mr vater, counsel for the local authority, made the point that the story did not end with the last hearing before the court of appeal. he submitted that „before that decision or those preceding it are relied upon in other, similar cases, either by any experts for the purposes of research or lawyers in support of their cases, the full story should be recorded.‟ i agree. that is the purpose of this judgment.” 2 although, bellamy hhj, in re s, showed sensitivity and empathy towards the father, his judgments did nothing to further the father‟s just demands. they reveal the impotency of the law and the court process where a child demonstrates intractable parental alienation. 3 they are judgments which all parents contemplating litigation should read so that they are made aware of the limitations of law should they decide to engage in disputes over a child‟s residence or contact. all too frequently, these disputes are a form of displacement warfare for the unresolved problems of the adults‟ relationship, and have little to do with a desire to ensure their children‟s welfare. the parents, in re s, were both professional people. their relationship had ended in 1998, not long before s was born. when s was fifteen months old, the father applied for contact but s was aged four by the time contact actually took place. progress was made, and the father and his wife succeeded in having s to stay on alternate weekends and took him on holiday with his two half brothers. when s was aged eight, these arrangements fell apart. the mother‟s attitude to contact, which had never been positive, degenerated still further. part of the reason for her increased hostility was because the father, perhaps unwisely in the judge‟s view, had organised dna testing to make clear to her that he was s‟s biological father. the father had also applied to the court for an order permitting him to change s‟s name, had requested that 2 re s (transfer of residence) [2011] 1 flr 1789 at 1794. 3 in re d (intractable contact dispute:publicity) [2004] 1 flr 1226, munby j said: “unhappily, in my judgment, the court process does not always prove equal to the task of dealing with such cases.” see also re m (intractable contact dispute: interim care orders) [2003]2 flr 636; re o (contact:withdrawal of application) [2004] 1 flr 1258; a v a (shared residence) [2004] 1 flr 1195. case commentary 194 he be allowed to send him to a private school, and had failed to return s to his mother after a visit. the mother reacted in a very negative manner, and by implication fostered a similar reaction in s. she ensured that s had extra curricula activities after school and every weekend; that way, there would be no time for contact between s and his father. she made no effort to encourage s to respond to his father‟s letters or telephone calls. she acquiesced in his rudeness to his father on the telephone, and gifts to s from the father and his family remained unacknowledged. numerous court hearings were held but the father was unable to re-establish contact with s whose alienation had became intractable. in december 2009, the father decided that the only way a meaningful relationship between him and s could be re-established was for s to live with him and his family. he applied for a residence order which hhj bellamy granted. it was a difficult decision to make; he had been faced with a difference of opinion between the original guardian ad litem, who had become over emotionally involved with s and had lost her sense of objectivity, and the expert appointed by the court, a consultant child psychiatrist. the guardian believed that s was traumatised by the dispute between his parents and the legal proceedings; that the court proceedings should be brought to an end; that contact between s and his father should cease, and s should remain with his mother and undergo therapy. the psychiatrist disagreed; he believed that therapy would be pointless unless it took place alongside contact between s and his father. he thought that the mother had opposed and undermined contact for too long; the guardian‟s approach would allow her behaviour and s‟s alienation to continue. he viewed s‟s expression of his wishes and feelings as irrational, and that they should not to be taken into account. in his view, the father would have to be very persistent with s in the initial stages of renewed contact and not give in, even if this meant that s might threaten to sabotage the new arrangement by refusing to eat or communicate. in his experience s would cease such behaviour within a day or two. hhj bellamy reiterated the principle that any decision about s‟s residence must be taken in his best interests under the children act 1989 s 1. he accepted that s 1(3) of the act and the united nations convention on the rights of the child 1989, did not permit him to disregard s‟s views about where and with whom he should live. he quoted butler sloss lj‟s words in re s (minors) (access: religious upbringing) 4 relating to the views of children aged 13 and 11: “nobody should dictate to children of this age, because one is dealing with their emotions, their lives and they are not packages to be moved around. they are people to be treated with respect.” however, he believed that s‟s wishes had to be considered in the light of his age and understanding, and his long-term parental alienation. there was a 4 [1992] 2 flr 313 at 321. the denning law journal 195 suggestion that s‟s wishes and feelings were not entirely reliable. he had shown some limited signs of warming towards his father, a man whom the judge regarded favourably, if occasionally a little lacking in foresight. the mother was seen as meeting s‟s general needs to a high standard, but that, on her own admission, she had lost control of s, and was unable (or unwilling) to ensure that he had contact with his father. balancing all the relevant factors, the judge concluded that s had suffered harm as a consequence of his parental alienation. s had distorted and unreal views of his father and his paternal family; he maintained that he hated him and that he was a monster. were this alienation to continue, it could damage s‟s future welfare and lead to academic under achievement and relationship difficulties. the father was more likely to be able to meet the full range of s‟s needs than the mother. he had recognised where he had gone wrong and the need for change, and had acted on it. he would encourage contact between s and his mother. she was unlikely to do the same for s and his father if s were to remain in her care, therefore, a residence order was the appropriate way forward. the mother immediately made an application to appeal the decision; it was dismissed by the court of appeal, 5 and the case was sent back to hhj bellamy to decide the best means of proceeding with the transfer of s to his father‟s home. the judge‟s plan was immediately derailed because, not surprisingly, the mother complained of chest pains and was admitted to hospital on the day the handover was due to take place. there was nothing seriously wrong with her and she was discharged from hospital later that day. a further plan was made, and a new guardian ad litem and a solicitor for s were appointed. the local authority allocated a social worker for s who objected strongly to the new plan and stated adamantly that he would rather go into local authority foster care than live with his father. by that time, the case had been before hhj bellamy eight times since he had granted the residence order. he was concerned about the uncertainty for s which was likely to be unbearable. to delay the decision any further would be contrary to s‟s best interests; it was time to act. he ordered the mother to take s to his father's home. if she failed to do so, the tipstaff would be asked to make the transfer. 6 s appealed. in giving the leading judgment, thorpe lj decided on a stepping stone approach, albeit a rapid one, as a more appropriate way forward than the immediate removal of s to his father‟s home. s should be moved into foster care for three weeks, after which, he would go to live with his father. during that time, the father would have the opportunity to have direct contact with s, whilst the mother's contact would be limited to short, supervised telephone communications. these calls were to be supportive of 5 re s (a child) [2010] ewca civ 219. 6 re s (a child) [2010] ewca b2 fam (unreported). case commentary 196 the ultimate goal of the court the transfer of residence to the father. any negativity, either expressed or implied, on the mother‟s part would put an end to any further telephone calls with s. 7 s was shocked by the decision. he maintained that “ … he would refuse to see his dad and then the court would see that it was his view.” 8 after a tearful departure between s and his mother, the foster care placement went ahead, as did the contact between s and his father. throughout the contact periods s sat with his head in his lap and his hands over his ears. he would not engage with his father and made clear that he neither wanted to see him nor live with him. the social worker became concerned about the effect of the meetings on s, as did the guardian ad litem. they thought that he was being put under unacceptable pressure and that the demands on him were extreme. his emotional and mental health was at risk. the father was made aware of these concerns and agreed that s should return to his mother under the auspices of the interim care order. he explained to s that he could not bear to see him so unhappy and therefore wanted him to go back to live with his mother. s was extremely happy at this outcome and returned home. for a while, the local authority remained committed to s‟s eventual move to live with his father, and further contact sessions were arranged. yet again s refused to engage. the local authority social worker explained that: “throughout the transfer stepping stone process, s has carried out his expressed intentions of “nil by mouth” and non-engagement, despite significant persuasion, efforts and pressure by professionals, both parents and extended families…the local authority is clear that it is s who is refusing to engage and carry out his acts of self harm, as proof and evidence of his intentions if forced to move to live with his father…the local authority cannot take any further part in direct contact, which s is not willing to be part of…at this stage an effective and successful transition between the two homes cannot be made without causing s significant harm…” 9 the guardian agreed with this statement, and it was decided to follow another approach at the suggestion of the father. assistance was sought from the director of the centre for separated families, ms woodall. she proposed that intensive therapeutic work with the parents and s should take place. thirteen sessions took place, and in addition, there were three direct contact sessions between s and his father. the director detected small but significant 7 re s (a child) [2010] ewca civ 325. 8 re s (transfer of residence) [2011] 1 flr 1789 at 1795. 9 ibid at 1796. the denning law journal 197 signs of progress. she proposed that the work should continue for several months and that the plan for a change of residence should be abandoned for the present. the expert child psychiatrist forcefully disagreed: “i do not share ms woodall's optimism that further therapeutic intervention will succeed…this is a serious and entrenched case of alienation…and it has been and remains my opinion that therapy is unlikely to succeed in overcoming s's resistance to any form of relationship with his father's family. … the difficulty i have is that although the local authority is hoping reason will prevail and s will come round to accepting the inevitable, i think it is unlikely. the delay allows a period when attitudes can become entrenched, behaving badly, and further risk of harm occurring…at the end after the work and negotiation there will still be the same situation where we have to force him to live with his father. even if he is willing to go into foster care, which is a good thing because it avoids a scene at the time, the bad thing is that we are not dealing immediately with what is ultimately necessary, that is, to make him to go live with his father.” 10 the father was dismayed at the possibility of further long-term therapy with no indication of when and if the residence order would take effect. his wife had recently had a miscarriage; he decided to give up any idea of s living with him or even having direct contact with him. hhj bellamy welcomed this; he believed that in the light of s and his mother‟s conduct over the last seven months, it was the right way forward for s. a consent order was made; s would reside with his mother, and there would be a supervision order in favour of the local authority for one year, which the local authority might seek to extend. the father would have indirect contact only, by way of school reports and photographs. any other contact would take place only if s requested it, and neither parent would be allowed, without the permission of the court, to make any further application in respect of s before his sixteenth birthday. after the final consent order was made, the guardian ad litem and the social worker emailed hhj bellamy to give him details of their final meeting with s and his father. at this meeting, the father had read out a letter to his son explaining why he had decided not to pursue the residence order. the meeting had been extremely difficult for him because he realised that there was no further hope of contact with s in the near future. s had told the guardian and social worker that he might consider seeing his father in his own time and on his own terms. the father was heard sobbing as he left the meeting. the failure of the activation of the well thought out residence order, in re s, and its replacement with a consent order raises a number of issues: 10 ibid at 1798. case commentary 198 the role of european jurisprudence in determining parental contact disputes; the problematic nature of parental alienation which is a serious stumbling block for the enforcement of parent/child relationships, and how to deal with it; the appropriateness of force for children who are implacably opposed to contact with a non-resident parent, and finally, the limitations of the family justice system in resolving parental contact disputes. the european court of human rights (ecthr) has emphasised the importance of art 8 of the european convention on human rights 1950 (echr), the right to family life, and art 6, the right to a fair trial. thorpe lj in re t (a child: contact), 11 suggested that the methods and levels of investigation used in the english courts might not meet the standards required by the echr. munby j in re d (intractable contact dispute : publicity), 12 took a similar approach and said: “we can no longer simply complacently assume that our conventional domestic approach to such cases meets the standards required by art 6 and art 8.” 13 the right under art 8 includes, unless there are forceful reasons against it, a right for the children of separated parents to know, love, and enjoy the company, of both their parents. the majority of non-resident parents are fathers and it is acknowledged that they have an important role to play in the lives of their children; contact between a non-resident parent, of either gender, and a child should only be abandoned when there is absolutely no alternative. 14 in kosmopoulou v greece, 15 the ecthr maintained that “the mutual enjoyment by parent and child of each other‟s company constitutes a fundamental element of family life, even if the relationship between the parents has broken down…” 16 in hokkanen v finland, 17 the european court of human rights (ecthr) held that art 8 provided: “a right for the parent to have measures taken with a view to his or her being reunited with the child and an obligation for the national authorities to take such action.” 18 the ecthr has accepted that the right under art 6 includes the right to have court orders enforced. in hornsby v greece, 19 the court said that: 11 [2003] 1 flr 531. 12 above n 2. 13 ibid at 1241. 14 see http://www.fnf.org.uk/ for details of the interest group families need fathers which campaigns on behalf of parents and children to be allowed to have contact with each other. 15 [2004]1 flr 800. 16 ibid at para [45]. 17 [1996] 1 flr 289; see also gluhakovic v croatia [2011] 2 flr. 18 [1996] 1 flr 289 at para [55]. 19 (1998) 2elr 365; see also immobiliare saffi v italy (1999) 30 ehrr 756. http://www.fnf.org.uk/ the denning law journal 199 “ … it would be illusory if a contracting state's domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. it would be inconceivable that art 6(1) should describe in detail procedural guarantees afforded to litigants— proceedings that are fair, public and expeditious—without protecting the implementation of judicial decisions; to construe art 6 as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the contracting states undertook to respect when they ratified the convention. execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of art 6…” 20 the extent to which a child should be forced to have contact with a parent once a court order has been made in that parent‟s favour was considered in ignaccolo-zenide v romania. 21 the ecthr stated that: “ … any obligation to apply coercion can only be limited since the interests, rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and [his or her] rights under article 8 of the convention.” this view was elaborated in kosmopoulou v greece: 22 “…the national authorities' obligation to take measures to facilitate reunion is not absolute, since the reunion of a parent with children who have lived for some time with the other parent may not be able to take place immediately and may require preparatory measures to be taken. the nature and extent of such preparation will depend on the circumstances of each case, but the understanding and co-operation of all concerned is always an important ingredient. whilst national authorities must do their utmost to facilitate such co-operation, any obligation to apply coercion in this area must be limited since the interests as well as the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and his or her rights under art 8 of the convention. where contact with the parent might appear to threaten those interests or interfere with those rights, it is for the national authorities to strike a fair balance between them.” 23 20 (1998) 2 elr 365 at para 40. 21 (2000) 31 ehrr 212. 22 [2004] 1 flr 800. 23 ibid at para [45]. case commentary 200 the importance of the rapid conclusion of parental disputes was emphasised in hoppe v germany, 24 according to the ecthr: “… in cases concerning a person's relationship with his or her child, there is a duty to exercise exceptional diligence in view of the risk that the passage of time may result in a de facto determination of the matter.” 25 in re s, european jurisprudence was hardly mentioned. can it be said that the decision conformed with the views expressed by the ecthr? the answer must be not entirely. with respect to art 8, the court certainly recognised the right to family life by way of contact and residence for s with his father. however, it failed to carry through the activation of its decision. the disagreement between the guardian and the social worker, with the views of the expert psychiatrist on the best way to proceed with the transfer of residence led to confusion, delay, and, in effect, a revisiting of the decision to grant the order. it is all too easy for professionals to unpick a residence order by the provision of yet more delaying reports. munby j in re d, 26 drew attention to the correct role of such professionals which is to facilitate orders for residence or contact. once the court had accepted that the view of the psychiatrist should prevail, should it have been more precipitous in forcing s, against his will, to move to his father‟s home? the answer must be a resounding yes. over a four-year period s‟s determination not to relate to his father, impliedly helped by his mother, had become deep rooted. by the time he had reached the age of twelve, he found himself in a position of power, and able to sabotage a court order made in his best interests by means of totally negative behaviour. 27 this outcome is hardly a good message to give to a young person, or a resident parent; it suggests that conduct, tantamount to blackmail, works. of course, a child has a right to have his or her views taken into account in accordance with his or her age and emotional competence, but once the court has done so the child must accept the consequences of that decision and be helped to cope with them rather than evade them. s‟s immediate distress, which was likely to be short lived according to the psychiatrist, would be compensated by the positive benefits on his emotional and social maturation which would endure for the rest of his life. few twelve year olds, on the verge of adolescence, have the ability to see the long-term consequences of their immediate actions and are not expected to do so. implacable parental alienation seems to have been regarded by the court as an implacable problem. as long ago as 1994, balcombe lj, in re j (a minor) (contact), 28 maintained that if a child is violently opposed to contact 24 [2003] 1 flr 384. 25 ibid at para [54]. 26 above n 2. 27 see also m v m [1998] 2 flr; re j (a minor) (contact) [1994] 1 flr 729. 28 [1994] 1 flr 729. the denning law journal 201 with a „good‟ non-resident parent, it must be assumed that this stems from the resident parent's negative influence, particularly if the child is very young. by implication, it would certainly seem to have been true in s‟s case. parental alienation must not be allowed to fester. it should be identified as rapidly as possible, and swift action must be taken against the resident parent, even to the extent of imposing fines or imprisoning the parent. munby j, in re d, 29 suggested that short-term imprisonment, if only for a matter of days, might be sufficient to change a recalcitrant parent‟s approach without damaging the child. the adversarial nature of the court process is so often not appropriate for the task of dealing with parental contact disputes. 30 the majority of family court judges believe in the need to move to a non-adversarial approach, wherever possible, one which involves mediation and which emphasises cooperation between parents to further the best interests of their children. 31 deadlines must be set and delays avoided at all costs. if a case has to go to court because greater judicial input is required, there must be judicial continuity, and strict judicial control of the process to ensure a swift resolution of the dispute. it may be that the recommendations in the final report of the family justice review, which is expected in autumn 2011, if acted upon, will redress some of the difficulties inherent in the current system which has failed both children and their non-resident parents. until there is a major change in the way parental contact and residence disputes are handled, well deserving non-resident parents will remain at risk of remaining reluctant absentees in their children‟s lives. a meaningful relationship between them will be lost to the long-term detriment of both parent and child. 32 29 above n 2. 30 above n 2. 31 see re o (contact:withdrawal of application) [2004] 1 flr 1258. 32 see r bird “reflections on the family justice review” [2011] family law 737. two kinds of justice: human and devine the denning law journal 133 denning law journal 2008 vol 20 pp 133-150 back to the future – not rocket science: some thoughts on 20 years of consultations on the future of the bvc and pupillage frances burton∗ introduction in the last two decades opportunities for exasperation in the vocational legal education constituency have been mounting as paper after paper has been published (and dutifully responded to by the various stakeholders) on reform of the bar vocational course (“bvc”). this has only recently been at least temporarily stemmed by the report of the newly created bar standards board (“bsb”) on deferral of call in june 2007,1 albeit immediately followed by the announcement of further reviews of the bvc and pupillage. this is not to mention a plethora of consultations and papers, which have gone before, including those earlier considered by the standing committee on legal education.2 however, it looks as though a final definitive decision on ∗ formerly director of the bvc by open learning, bristol institute of legal practice, university of the west of england, vice president association of women barristers, vice-chairman international bar association academic and professional development committee. an earlier version of this and the awb’s paper proposing a bvc sandwich course to include a period to replicate the non-practising period of pupillage was debated in the practice, profession and ethics specialist subject section meeting panel discussion “current issues in the vocational stage of training” at the annual conference of the society of legal scholars at keele university on tuesday 5 september 2006, and again at the learning in law conference at warwick university on thursday 3 january 2008. the paper remains work in progress due to the pace of change following the inauguration of the bar standards board and its programme of review. a final version (when and if that might be available!) may be obtained from frances burton, frb@frburton.com 1 published 8 june 2007, available at www.barstandardsboard.org.uk. 2 the most relevant previous bar council reports are summarised in appendix 5 of the report, dated 27 november 2007, of the entry to the bar working party chaired by lord neuberger of abbotsbury and are: report of the bar entry and training working party, 1991 (“taylor”); report of the working party on financing entry to the bar, july 1998 (“goldsmith”); financing entry to the bar, march 1999 (“tuckey”); committee to review financial support for entrants to the bar, july 2002 (“mountfield”) response of the education and training committee (“response to mountfield”); bar council resolution, november 2002 (“mountfield resolution”); some thoughts on 20 years of consultations on the future of the bvc and pupillage 134 the equally long running debate on “deferral”, notable as the bsb’s first indication of a new approach, especially as it was for the first time evidence rather than anecdotally based, may be breaking the vicious circle. up to 2006 the only positive factor in this apparently unfocused attack on rainforests was the association of women barristers’ 2005 discussion paper on the bvc and pupillage3 which, by at last looking at the broad picture, picked out the one macro issue which in fact drives all the micro tinkering with the bvc, and the emotion surrounding both the bvc and deferral, namely that the bvc, pupillage, obtaining a tenancy and immediately embarking on continuing professional development (“cpd”) are all links in an important chain in training for the bar up to the point at which a barrister can practise independently. this was followed up by a paper delivered by richard wilson qc at the bvc providers conference of july 2007 proposing much more radical restructuring of the bvc, to include more practitioners’ input into skills, more academic work on the “knowledge” subjects of civil and criminal procedure and evidence, and possibly a two part bvc in which the knowledge subjects were disposed of first, prior to concentration on the barristers’ skills, which should then be largely delivered by practitioners and based on advanced litigation modules. had this holistic approach to classroom and work-based learning been addressed in the first place, and perhaps a brief glance spared towards the simple principles of bar education of the past which produced the great advocates of legend, much time, trouble and expense might have been saved, since it is pointless to discuss the content of the bvc (as it was even to consider deferral of call) without also considering the present arrangements for pupillage which are now seriously out of date. thus it is no surprise that even before the publication of the final report of lord neuberger’s working party on entry to the bar,4 set up to look at access and the bvc generally, the bsb set up another committee specifically to review the bvc syllabus, the taskforce on funding entry to the bar, july 2002 (“calvert-smith”); first draft of the report of the voluntary scheme appeals committee, april 2005; arrangements for collecting contributions, june 2005 (“southern”). 3 the full 2005 paper “pupillage” by kaly kaul, then chairwoman of the association of women barristers, which suggested an integration of bvc and part of pupillage in a “sandwich” format, is obtainable from the editor of the awb newsletter (awbeditor@aol.com). a further paper on pupillage is planned for issue shortly by the current chairwoman, also a criminal practitioner on the south eastern circuit and for some years the circuit’s representative on the awb committee. 4 the entry to the bar working party was set up in late 2006 by geoffrey vos qc, then incoming chairman of the bar, and its membership comprised inter alia representatives of the bar council, including the young bar, and diversity specialists including the chairman of the diversity law association. its final report is at www.barcouncil.org.uk. the denning law journal 135 wood working group,5 chaired by derek wood qc, formerly treasurer of middle temple and principal of an oxford college. then we hear that there are next to be separate bsb reviews in 2008-9 not only of pupillage but also of cpd for the bar, in which the bsb aims to set out its stall for the provision of a holistic solution, but without (so far) any indication of the necessary links between the three stages. the present regime in order to understand the dynamics of these debates some grasp of the present regime is essential. in summary, since 1989 the bvc has been a single academic year, skills-based course targeted towards teaching in class as to 65% of its content as follows: the barristers’ practical skills of advocacy, conferencing (ie interviewing instructing solicitors and their lay clients prior to representing them in court or otherwise advising them on the law and practice), negotiation (settling cases), writing opinions, drafting court and other documents, practical legal research and professional ethics (ie applying the bar code of conduct) and as to the remaining 35% of the course teaching, either in class or online, as follows: the “knowledge” elements of civil and criminal procedure and evidence and human rights. no new law as such is therefore taught on the course, since this is expected to be learned at the previous academic stage where the “core subjects” of english law, called the 7 foundations of legal knowledge, are examined either as part of the 2-3 year undergraduate law degree or on the fast track conversion course for non-law graduates, the “graduate diploma in law” (“gdl”, formerly known as the “postgraduate diploma in law” or “pgdl”) which is taken either in 1 year full time or 2 years part time. the bvc is then followed by 12 months of practical training in “pupillage” in barristers’ chambers (the first 6 months of which is a work shadowing experience, followed by a further 6 months when the pupil, still under some supervision, may accept work on his or her own account). the object of the deferral debate was to prevent those who had not done the 12 months’ pupillage from being called to the bar at all even if they had graduated from the bvc (which is in itself a degree, its graduates being called by their inns of court to “the degree of the utter bar” – the penultimate word being the medieval spelling of “outer”). this attempt to exclude bvc graduates from call – or use of the title was said to be on suspicion that the bvc alone was an inadequate foundation for the profession of barrister, that the public was misled, and that allowing call before pupillage did not equate to the practical experience required in the medical profession (ignoring the recognition that the bvc is a lawyerly training in its 5 this committee is expected to report in the summer of 2008. some thoughts on 20 years of consultations on the future of the bvc and pupillage 136 own right which has traditionally in the past been successfully recycled in a useful practical fashion in careers other than that of court advocate and that this tradition is preserved in a number of overseas jurisdictions as well as in the uk). however, while there had always been a hunch that the real agenda was to reduce the numbers on bvcs and threats to those already in the profession, the bsb’s evidence gathering refuted any such justifications for throwing the baby out with the bathwater, found the public was not misled, and that the proportionate remedy was for pupils simply to be called pupil barristers until they had completed their full 12 months pupillage and then received the full practising certificate. from 1989, the bvc was provided only by the london based inns of court school of law (“icsl”) but from 1996 the right to provide the course was devolved to 8 nationwide law schools at a variety of locations. courses may thus be found in some universities, within london and regional branches of the college of law (a charitable foundation) and some at the commercial provider, bpp law school, in london and leeds. prior to 1989, the icsl was the main provider of an almost entirely academic bar examination, with the college of law (formed from the amalgamation of the law society’s school of law for solicitors and the long established law tutors gibson & weldon), which also delivered tuition by a “postal course” on the lines of the traditional 19th century correspondence courses. it should be noted that while the bvc was greeted as a great innovation in 1989, the old style bar examination (which had qualified the great advocates of the 20th century) was found insufficiently worth scrapping that upon creation of the bvc it was itself deregulated and devolved to the various teaching institutions for the next decade, as a qualifier for those of the commonwealth jurisdictions which recognised call to the bar in england and wales as sufficient for local qualification at their own bars. at least two attempts were made to modify it as a permanently less skills based species of bvc for those jurisdictions as well as for uk candidates who wished to work in employed practice or in those contexts outside the law altogether where a law background was nevertheless appreciated. however, during the whole of the time from 1989 when the new bvc was created by the icsl, it was clear that the new course carried with it certain new problems: reform began almost immediately to be discussed to address the rising student costs which such a long and labour intensive course inevitably brought with it, and in the run up to the design of the new legal practice course for solicitors (the law society’s own version of a skills based course to replace their academically focussed qualifying law society examination) envious glances were cast towards australia and canada where much shorter courses and more work based learning were the norm. various methods of tackling this perceived evil of rising costs and consequent student debt have included pressure for a shorter, somehow different, course which the denning law journal 137 could be delivered more cheaply, producing less financial burden for students. as mentioned above, no one, however, found the philosopher’s stone, which would transform this leaden educational deadweight into the golden experience, that everyone, especially students, seemed to think it ought to be. the next stage high hopes were raised by the post clementi6 separation and restructuring of the bar council’s regulatory and representational roles, which created the bar standards board (the originator of the 2006-7 deferral of call consultation). the report following this consultation, the bsb’s first chance to show that it was cutting a swathe, seems finally to have had the muscle to knock on the head the particular irrelevancy of deferral. tackling this issue first was an excellent public relations move by the bsb. while not achieving any of its perceived goals, deferral would have put a stop to the longstanding tradition of call to the bar by their inns of court of two categories of bvc student: (i) a significant proportion of overseas aspiring lawyers who take the english bar’s bvc before returning to their commonwealth jurisdictions, and (ii) an equally significant body of uk based students proceeding into government or other careers where a law background is of practical validity in recognition of the valuable training they had received alongside those who did aspire to practise in the courts of england and wales. it is therefore most encouraging to see the new board grasping the obvious nettle and explicitly saying so in its published papers: that is, that someone needs to look at these bar education issues as a whole since they are so interwoven that change in any one will impact significantly on the others. the obverse of this coin is that it also serves notice that a holistic view simply suggests how all the currently contentious issues might fall into place if for the first time considered as a whole. the mischiefs to be addressed: costs, diversity, course content and rigour much has been made in the multi consultations, as well as the popular press, of the rising costs of access to the bar. on top of the escalating mountain of graduate debt generally, this is a valid issue as it also adversely affects the commitment to diversity which is enshrined in the bar code of conduct and in the articulated ethos of the profession. the final concern is of the dubious content and suspicions of lack of rigour of the present bvc, 6 report of the review of the regulatory framework for legal services in england and wales, available at www.legal-services-review.org.uk/content/report. some thoughts on 20 years of consultations on the future of the bvc and pupillage 138 although closer examination reveals that this by no means entirely substantiated perception is generated principally by the large class size course inaugurated by the then council of legal education in its inns of court school of law in grays inn in 1989, which with modifications is still the course delivered by the icsl, but not replicated by other providers who all designed their own courses in accordance with the bar council syllabus when the devolved bvc began to be taught at the 8 validated institutions from 1997. since that time icsl numbers have been to some extent reduced and more individual attention also built into the icsl course, but the generalised misconception nevertheless apparently persists, often in ignorance that other law schools catering for much smaller numbers do things differently. (a) costs taking costs first, there is no doubt that a course lasting an academic year will be more expensive than one lasting a shorter time, since the longer a student studies, especially on a full time mode of a course, the more s/he must spend on living expenses as well as on the course fees, and if full time on a demanding course will be unlikely to be able to earn at the same time. while it is true that some students are self funded, either by themselves, their spouses or partners or their parents, or have scholarships (most notably from the inns of court and chambers whose scholarships and bursaries usually allow some drawdown towards the bvc year) there are many who must work in vacations and at weekends in order to support themselves. on the provider institutions’ side, their staff must be paid and up to date teaching resources and accommodation must be funded. therefore there is clearly something to be said for a shorter course. in vancouver, british colombia, the qualifying course is 16 weeks, in australia around 6 months (though the different states have different provision), in the usa no more than 5 and in europe the range stretches from zero provision to 6 months or less, with varying degrees of work based learning to follow, much like our pupillage. for this reason pupils at the bar in england and wales have from time to time proposed a much shorter course, usually pointing to much wasted time at one particular bvc provider where students are much left to their own devices to learn. however anecdotal evidence at present emerging from the bsb’s current review of the bvc does not suggest that a significantly shorter course is going to be proposed, nor the “sandwich” provision suggested by the awb paper, although there may be some tinkering with the precise syllabus, possibly leaving some of it for the pupillage stage. it would appear, then, that the only way to cut costs is for students to continue to borrow, or save ahead of their bvcs, or to take a part time course, preferably making as much use of open, flexible or blended learning as the denning law journal 139 possible, by learning the knowledge components on line. more use of open learning type courses was amongst the neuberger report recommendations. (b) diversity it should be remembered that the bvc was originally designed to introduce a skills based training at a time when the only alternative had for many years been a written examination for which it was said that students simply “crammed” much as they had done since the 19th and early 20th centuries when “reading for the bar” was either a gentlemanly self administered occupation or a simple process of bolting on to mostly oxbridge law degrees mastery of the content covered by simple examination papers in evidence and procedure. this was traditionally achieved with or without the help of the leading “crammer” in the genre, messrs gibson & weldon of glorious memory, one of the two parents of the 1960s creation of the college of law. various unsuccessful or sadly half-baked attempts have been made to address these twin horrors of costs and diversity which inevitably impact on each other, alongside the generalised (and often not convincingly articulated) concerns (largely based on unease with the quality of the course at one provider) about whether there should be changes to the composition of the bvc. the diversity results now speak for themselves. the bar council’s statistics show that while men and women are now roughly equal at the entry point of bc and pupillage, this changes within 5 years of the start of their careers when women begin to leave the bar and men advance more quickly, although there is now good minority ethnic representation at least in the lower echelons of the profession (not replicated above the lower judiciary however). nevertheless what the bar council and bsb are seeking is a greater representation in the profession of ordinary indigenous british people from atypical backgrounds and the neuberger report confirms that the bar is not in fact attracting the “brightest and the best”. (c) course content and rigour the imbalance between the numbers of students entering the bvc (approximately 2000 annually now) and the supply of pupillages (currently approximately 500 annually) has also been a chronic cause for concern, together with a suspicion that the large numbers of bvc graduates four times the necessary supply seeking the too few pupillages automatically meant the bvc was too easy, and this was said to be much more critical an issue in the context of the proposal for deferral of call. however until now all this has been mostly a chronic background “noise” rather than ever culminating in a structured campaign and it appears that the only recently with some thoughts on 20 years of consultations on the future of the bvc and pupillage 140 the neuburger report and the wood committee has any coherent thought apparently been given to a way forward out of this plethora of lamentation and into some workable future plan. what it comes back to is that the bvc needs to be examined in detail, and in consultation with the profession, for optimum content, together with and in relation to the optimum content of pupillage. to some extent the neuberger and wood committees have been attempting to tackle this goal. it is, after all, training for the bar that is the subject of discussion, and it must be logical that if it was thought (at the time deferral of call was discussed for this very reason) that it was right for there to be a mix of formal class training and work based learning for the medical profession, some thought ought to go into the interface between these two types of learning for the student barrister. to do this, the cooperation of the profession as a whole, and not simply a few bar council and bsb committee members, needs to be engaged. neuberger and wood the neuberger report (“neuberger”), published on 27 november 2007, has considered most of the relevant previous consultations and reports and appendix 5 of the report provides a helpful overview of the most relevant of those though it misses some extremely relevant research, including professor joanna shapland’s most recent report for the bar council in 2006 (only privately circulated) which looked at issues extremely central to both the bvc and pupillage, namely to what extent the practising bar might be willing to participate in a more innovative approach to both the bvc and pupillage, for example, even some sort of sandwich course as suggested by the awb. professor shapland has prepared a number of reports on the bvc and pupillage7 and it is a great pity that her most recent research was not immediately followed up and indeed one hopes that it could be by the time the pupillage review working group is constituted later this year. the way in which neuberger is different from earlier reports, and foreshadows what may come out of the wood committee when their report emerges during the summer of 2008, is that it provides a list of recommendations, which although daunting in its number (55) probably most of which are not even relatively quickly attainable, does flag up issues which have been mentioned, in most cases more than once, in previous review and 7 professor joanna shapland, institute for the study of the legal profession, university of sheffield, has prepared reports for the bar council since 1989, including on the ongoing careers of the first students on the icsl inaugural bvc. one of her most useful reports is “good practice in pupillage” (1998, now out of print but available from the bar council) which it would be particularly useful to follow up now. the denning law journal 141 yet then apparently discarded onto the back burner if not directly into the bin. the real difference may be in whether the bsb now has the vision to see which need to be prioritised, the muscle to take them forward and, most importantly, actually does make them happen. for a profession which likes to be paid for talking, it is curious that so little that was in its interests has been implemented previously. perhaps the explanation for this lack of progress is that a keen business case has to be made to achieve obviously desirable changes. the neuberger recommendations are divided into 7 chronological sections, rather like shakespeare’s seven ages of man, addressing the way the bar and its institutions should interact at the stages of (i) secondary education in schools, (ii) tertiary education in universities and other graduate education providers, (iii) the vocational stage of the bvc at bvc providers, (iv) the training stage of pupillage in chambers or elsewhere, (v) in initial tenancy or employment, and (vi) in ongoing practice when retention is an issue; finally (vii) statistics, monitoring and funding, which underpin the earlier sections.. it should be remembered that neuberger was set up by geoffrey vos qc, then chairman of the bar, to look primarily into entry to the bar so it is concerned to a great extent with, first, establishing whether the bar is getting the best and brightest recruits (the answer to which seems to be “no”) although this is the issue about which many independent evaluators have the largest credibility gap, and, secondly, securing those apparently longed for best brains from atypical backgrounds. we have to wait for the wood report (of the bvc review committee) to address content of the bvc, although even now it already appears that the opportunity for integrations between the bvc pupillage has once again been missed. there is no space to consider here more than those recommendations which impact directly on the issues of the cost and content of the bar’s qualifying course which has been the main theme of consultations over the past 20 years. however along the way “neuberger” offers some useful insights into (1) costs and (2) content of the bvc and pupillage. neuberger’s innovative costs proposals taking the hot issue of costs from section (vii) first, neuberger has certainly learned from the catastrophic reception of the financial proposals in mountfield and its spin offs, as well as calvert-smith (2002), goldsmith (1998) and tuckey (1999) (of which mountfield most, very much irritated the practising bar). neuberger proposes, first, a loan scheme similar to that for undergraduate student loans which has now been in place for almost a decade (though hopefully a contemporary scheme would be more successfully managed this time) and, secondly, an innovative sponsorship scheme which some thoughts on 20 years of consultations on the future of the bvc and pupillage 142 would enable those employed barristers who cannot actually offer pupillages (since this impacts adversely on the cost centred budgets of the corporations and institutions which employ them) to persuade their employers to fund such pupillages. this seems an inspired idea and is not unlike the corporate funding available to university students for which such companies and institutions can see a business case. the employed bar would no doubt be more than willing to consider such a sponsorship scheme since bacfi (the bar association for commerce finance and industry, which is much longer established than the employed bar association) not only considered, but actively promoted an initiative for a pupillage course for their members some years ago. this initiative was the brainchild of its then chairman (now vice-president and also a vice president of the association of women barristers and bencher of inner temple, susan ward, who is general counsel for a banking organisation in the city, and was coincidentally the first chairman of the employed bar association). both these schemes also go some way to meet the needs of those who seek to make the bvc a genuine trainer for alternatives to the self employed or employed bars, that is for those who either decide the bar is not for them after all, or those who turn out not to have a real aptitude for practice in either context (which can certainly happen as students at point of bvc entry have many misconceptions about both the bar and the bvc). the two schemes comprise an extremely practical way forward which should be developed in consultation with the banks, which are only too keen to obtain future lawyer customers in their student years who will in due course more than repay this sort of subsidy, and which, despite credit crunches, always have the money to underwrite this sort of venture. there are of course other ways of reducing the costs of the bvc and of pupillage, which are more properly considered under the heading of the content and delivery of these two important stages of training. content of the bvc and interface with pupillage: stages (iii) and (iv) it has been generally agreed by all stakeholders, even the various student organisations, that a bvc of some description is necessary. however, there have been radical student suggestions which have produced a case of sorts for significant shortening of the single academic year course from september to june full time (or 2 years part time) and even suggestions, debated by the bvc providers group, that there should be no obligation to follow a course at all but that the bvc should be an assessment only pathway for which the fact and style of preparation should be optional. the present specification for the bvc dates from the report of the working party chaired by the hon mr justice elias (generally referred to as “elias”) adopted by the education and the denning law journal 143 training committee of the bar council for use from september 2002, and periodically amended since. incredibly, this document is currently under review even before the wood report is submitted. the present bvc length, of at least 32 weeks, supported by some new practical suggestions about rigour, is reinforced by neuberger appendix 9, which comprises the recommendations from the draft report of a current sub-committee of the bar council, a working group chaired by richard wilson qc, a black silk from bedford row, which was the foundation of his paper at the bvc providers conference of july 2007 already mentioned. it is interesting that richard wilson also supports the return of national assessment (last seen in the old style bar examination in the 1990s), in which he envisages a nationally set examination, marked locally to nationally set rules and standards, by experienced tutors at the validated institutions where students are registered and taught, a new bvc specification and more rigourous quality rules, reflecting both the increasing rigour of practice at the bar and its increasing specialisation. these proposals (with a modern twist and without abandoning the skills) revert very closely to the early mix of the old style bar examination, but with some polish from the new icsl bvc of 1989, as practised at bpp law school in the early 1990s, when that law school was set up to modernise that pathway to the bar immediately after the icsl went over to the bvc. at that stage, the icsl’s alter ego, the cle, assumed a loosely advisory role, sharing their old materials and some guidance on delivering them with university law departments which had decided to offer a course, while the cle retained the tasks of setting, arranging marking and moderating, and holding the examination boards for the national examination. this worked extremely well in a well run law school, such as bpp, and not at all badly in less well run institutions of which there were some whose students regularly did not pass. students very quickly formed their own views of where to go to ensure that they passed the national examination, soon getting the hang of choosing where to enrol or if necessary moving to a provider delivering capable tuition (necessary in those days as the cle did not validate or quality assure any courses unlike the present position whereby the bsb is the regulator). bpp also offered, particularly for those foreign students who could not get onto the icsl’s bvc, or home students who were not sure if they wanted to practise or not, some advocacy and other skills training, and a series of extra curricular lectures which provided a well rounded preparation for the nationally set examination. together with the inns’ input (cumberland lodge/west dean weekends, dinners, social events, eu institutions’ trips, education sessions similar to today’s education days) this provided a real introduction to the spirit of the profession and took most of the demands of the collegiate emphasis of bar education off the providers. in the context of such a nationally set assessment it would be good to see the inns taking a some thoughts on 20 years of consultations on the future of the bvc and pupillage 144 larger part again, for which they have their own voluntary tutor force, and more support from the circuits. these suggestions, although probably not welcome to the providers who might see diminishing bvc numbers, seem only right in a context where there is widespread discussion in the practising profession about the relative values of a bvc qualification from different providers. however providers could always make up their revenue with cpd provision and the additional masters courses that richard wilson also envisages to “finish” those (significant numbers of) bvc graduates who never intend to go on to practise at the self employed or employed bar. it is fair to say that the decision to open up both teaching and assessment of the bvc to outside providers, which took place at a time in the mid 1990s when the present, demonstrably highly innovative lord chief justice, lord phillips of worth matravers, was the judge presiding over the cle, did raise consistency concerns at that time which have only become more marked. it is also clear that there is an apparently unanticipated marked divergence not only in course design but also in teaching standards as the 8 providers have opened more branches and use their licence to customise their courses ever more creatively. however, despite periodic grumbles elsewhere, only one london provider which does not provide a full week’s teaching is consistently criticised by students (although it is fair to say there is a lot a bvc student should be doing in independent study out of class). if the bar is going to meet the challenges of contemporary practice, national assessment is probably an essential step in the right direction and not before time. if we were to adopt the practitioner orientated content envisioned by richard wilson in his 2007 bvc conference paper, students would get a basic knowledge of criminal and civil litigation at a general introductory level and then choose from a number of specialist advanced litigation options. they would have practical legal reasoning and evidence assessed as skills; more evidence integrated into skills courses; a unified mediation advocacy course; a reformed negotiation course on a level with those offered by leaders in the field; and assessed forensic accountancy and equality and diversity principles, together with practice management skills comprising the “basic principles of how to run an effective modern professional practice at the bar” together with some “office skills” (recognising that in most chambers members of the bar unlike solicitors are responsible for all their own typing, and, although clerks negotiate and bill for their fees, it is a barrister’s responsibility to keep a record of time spent so that it may be billed accurately). all these points reflect contemporary practice at the bar and (with the exception of mediation advocacy which had not yet arrived on the scene in england and wales) were in use in the early 1990s at bpp either as part of or alongside the nationally examined bar examination of the time. the denning law journal 145 richard wilson also wants to prescribe minimum advocacy time “on their feet” for students, a diploma in professional legal practice for bvc graduates and for most or all of the course to be taught at qaa level he4, to satisfy the criteria for a masters degree either as a whole or as at masters level following completion of a subsequent module. this wilson emphasis on the primacy of advocacy may well be the key to the future of a truly contemporary bvc. the international bar association’s 2007 annual conference at singapore featured a workshop led by the australian federal judge, justice annabelle bennett, who believes that the relationship between judge and counsel is a crucial one and that good communication is the key to a successful outcome. she sees this as the legacy of the great advocates, and that when presenting their cases in courts counsel need to think about what the judge really needs to know. her views are well known in australia. she suggests what is wanted is “good old fashioned advocacy skills” and that “one of the great skills of the common law system is oral advocacy. through oral argument a judge can clear up a misconception she or he may have”. despite most judges now reading the papers before a hearing, justice bennett thinks that “being able to hear counsel, ask questions and get assistance means that the judge has a much better idea of the case” and “a good advocate is not talking to a computer, a brick wall. she or he is speaking to a person who needs to be persuaded”. in leading the workshop she explained that she engages with counsel for reasons of natural justice, so that the way she is thinking is put into the transcript and that engaging with counsel means that her attention is more focused. in doing this she believes that “the lawyers are working with me and we have a mutual interest in the result”. of course she does not underplay the importance of preparation and indeed appreciates that this is the foundation of good advocacy, which seems to sum up the bvc and the preparation subjects which underpin advocacy, its most important skill. the neuberger report wilson appendix also envisions a bvc entry standard of a minimum 2.1 degree (or equivalent cpe/gdl grade, presumably a commendation), an english language proficiency test for both home and foreign students, and an entrance examination designed to test the student’s aptitude for the bvc (ie foundations of legal knowledge) and practice at the bar. these suggestions are coupled with an expressed desire for a reduction in numbers and an improvement in the quality of bvc graduates, although it is also pointed out that implementing the tests and the raised entry levels would be likely to achieve the desired reduction and raising of standards without any such numbers targets being set. the awb’s view richard wilson, however, is not the only source of radical suggestions for the improvement of the bvc and its closer links with radically reformed some thoughts on 20 years of consultations on the future of the bvc and pupillage 146 pupillage. building on their sandwich course proposal in 2005, the current chairwoman of the awb is drafting a new paper on pupillage alone. the awb has a substantial student, pupil and young tenancy and employed bar membership, as well as a number of senior practitioners who between them have seen every stage of the old style bar examination and the post 1989 bvc. the association’s senior members have also seen every stage of pupillage from the informality of the 1960s to the present olpas and nonolpas paid pupillage structure from which any deviation in the former tradition of the bar to provide some voluntary work experience in pupillage for commonwealth students returning overseas is now rigidly controlled by the bar council’s “waiver” system. they were thus well placed to think around practical proposals, although as will be seen this debate has been going on so long that not even the awb’s proposals are “new” as such: they have been advanced before, in the radical 1999 discussion paper “restructuring vocational training for the bar” which proposed a bvc and pupillage sandwich course, approved by the general management committee of the bar council itself on 24 june 1999, to be introduced in 2002, and, incredibly, shelved like so much of the paper that goes through bar council committees. it is a sad fact that the most recent bar council consultation (2005) (“the vocational stage of training for the bar”, generally referred to as “bell” since it emerged from a working party chaired by professor john bell, past president of the society of legal scholars, and concentrated on the future content of the bvc) was conducted outside the simultaneous plan to introduce deferral of call from 2008. although deferral itself has now been wisely killed off by the bsb, since it provoked the final exasperation of consultees suffering from consultation fatigue, it also meant that a number of irritated responses were generated, by chambers, inns and both current and recent bvc students, voicing considerable dissatisfaction with the bvc and its costs. it is fair to say that this is likely to happen again when this summer the bsb’s pupillage review and its cpd review, commence before its bvc review committee (the wood committee) reports, and the awb brings out its pupillage paper! sandwich courses, flexible learning and costs if costs alone, especially of a sandwich course, are considered, there is already a mechanism for reducing overall costs to students by teaching those parts of the bvc which need to be included in a formal course through the several part time modes of the bvc offered by the providers over 2 part time years instead of the classic one year full time. these courses are offered either in evenings or weekends, which enables students to remain in employment until the course is completed. the most radical of these is the the denning law journal 147 university of the west of england’s bvc by open learning, a part time block learning weekend course which is supported by intervening study periods where the knowledge is learned online, as is much of opinion writing and drafting, and parts of the options. this is a system which actually enables students to receive more individual attention than is the case in a fully class based course because of the use of blackboard software to create a virtual learning environment where work is submitted regularly online in exchange for suggested answers and students’ input either monitored (if it is for example on a discussion board) or returned with comments by tutors (on line or in printed off hard copy). there is no doubt this produces more effective feedback, with less burden on the tutor, than can possibly be achieved in a face to face class, and also draws on that learning autonomy which is one of the specific benchmark qualities of “graduateness” which the benchmarking process seeks to encapsulate. benchmarking was first proposed which a student should have brought to the bvc from the academic stage of training. moreover, the ethos of this self reliant learning experience is imparted in an intensive 5 day induction week and the first intake (2005-7) has now contentedly passed out of its final year (with a proportionately higher number of outstanding and very competent grades in their bvc results and a proportionately higher pupillage strike rate than the larger full time course at the same institution). the second intake (2006-8) will emerge in summer 2008, a third intake (2007-9) started in autumn 2007. recruitment of the fourth intake (2008-2010) is almost complete for entry in october 2008. mostly uwe has had to design its own materials, customising them from those used on the full time mode of the course (which was a burden on the tutors during the creative stage) but gradually some commercial products are appearing. for example, the panel discussion at the 2006 society of legal scholars conference, chaired by michael petley of the college of law (which has already introduced substantial on line work on its lpc in the last 3 years) included martin hannibal and lisa mountford of staffordshire university, whose earlier presentation in the same session focused on their own online contribution to vocational teaching, a criminal litigation manual with multimedia support.8 the panel was invited to consider to what extent an abbreviated bvc as suggested by the awb paper could be an innovative basis for an overall restructuring of the bvc and a sandwich pupillage and having had the hannibal-mountford presentation immediately beforehand was cautiously impressed with the potential. 8 published by the oxford university press, also publishers of the icsl bvc manuals, originally developed by the icsl in 1989, now republished annually. all providers issue these manuals to their students whether or not they also issue their own materials (which many do, preferring their own teaching styles). some thoughts on 20 years of consultations on the future of the bvc and pupillage 148 following on from such a flexible course, bvc students who have financed themselves through a bvcol by working throughout might be able better to complete pupillage part time, as is considered by “neuberger”could be done. this would have to be achieved by lifting the present embargo on a pupil working during pupillage (other than in the traditional part time evening and weekend newspaper and law report editing, or reading publications for libel) and instead permitting pupils to work part of a week or a month (depending upon the employment available) and extending the pupillage beyond the traditional year. other suggestions revolve around improving arrangements for pupils to be self financing from earnings in the second (practising) six months of a full time pupillage. much detail needs to be worked out here, which will be for the bsb’s pupillage review working group to do, but if the principle is accepted that pupillage has to be made more accessible the detail could duly follow. the real benefit of the sandwich proposals, however, would be seen in the coherent progress of a bar student from bvc application to junior tenancy (ie in the streamlining of the practitioner bvc to “second six” pupillage and on to tenancy transition). since first, anyone who obtained a bvc place would also have some pupillage experience of “hands on” work experience in chambers as well as of graduating from the new sandwich bvc, but only those who had successfully shown aptitude during the in chambers sandwich part of the bvc would proceed to the “second six”, which would be the operative part of pupillage (as now), resulting in a full practising certificate. the remaining bvc graduates would have to seek out other avenues, either at the self-employed bar or outside the bar altogether (which is when a “bolt on” specialist masters course, as also suggested by “wilson” might be considered if the bvc was not a masters in itself). this would serve to control numbers in a manageable and ethical manner without making the qualification so hard, or even impossible for some minorities, to achieve that, as the awb warned, “we destroy our own valuable profession.”9 amongst other reformers, the awb agrees with neuberger in urging that “we must make it a qualification worth having in its own right, with recognised training and skills.”10 in this respect, some regard must be had to the entry point at bvc application level, currently set at a 2.2 degree (in any discipline if an llb is not held and the cpe/(post) graduate diploma in law is held). there have been arguments for a long time favouring raising this standard to a 2.1 (with discretion from the regulatory body, the bsb, in the case of a 2.2) and recent consensus amongst bvc providers that it is counterproductive to consider applications from those with thirds even where 9 above n 3. 10 ibid. the denning law journal 149 discretion is exercised suggests that this may be an essential step to limit wastage of weak students. again this is far from new. “taylor” (1991) first criticised the open door policy on the grounds of both wastage and unsuitability for a career at the bar when a 2.1 was worth a lot more than it is now in most degree awarding institutions, and the debate has rumbled on for the ensuing 16 years while more and more weak students struggle through the bvc by taking individual bites at the resit cherry till they exhaust permitted attempts and have to give up, or else graduate as (still) weak students. these students, if they have a real interest in and passion for the law, should be pointed in the direction of more easily attainable qualifications of which there are several recognised in this country. and, if there are definable problems about qualification without call to the english bar in certain of our commonwealth jurisdictions (such as the west indies where there are particular difficulties) the inns which have traditionally been the focal educational point in such countries, and the bar council, (which includes every year in its annual plans and budgets support for foreign common law jurisdictions), should consider what could be done in other ways to help students from these foreign out posts of the common law who cannot obtain a bvc place in the modern context. indeed, when he was attorney general this was a project of lord goldsmith’s which he might well have been invited to progress further now he is no longer in office, especially as his other interest during his years as attorney-general was to achieve somewhere the establishment of an open learning bvc onto which could be sent cps personnel who had never had the opportunity to take a professional qualification but who could not be spared, even in the early evenings, to attend class in the working week. conclusion the various bvc consultations have begged as many questions as they have asked to be specifically answered. a much wider debate is required which includes the issue of pupillage since vocational training for the bar needs to be looked at as a whole and by the profession in consultation with the bvc providers: it should not be forgotten that this was originally how training for the bar was provided – by the old inns of court school of law under the direction of the inns (ie barristers and judges, and if anybody other than the client is the ultimate consumer, the judges as such certainly have a place in the debate). the fact that the bar council inherited control of bar education when the council of legal education (the alter ego of the old icsl) was dissolved, and that the bvc has been devolved to other london and regional law schools as well, does not alter the fact that these providers need a close relationship with the profession for whom they are providing some thoughts on 20 years of consultations on the future of the bvc and pupillage 150 trainees, whether that be with the inns, the specialist bar associations, the circuits, chambers or all of them, and that this is not best served by simple regulation by the bsb. it would in no way detract from the bsb’s regulatory role and indeed its other usefully supportive roles, such as in their relations with overseas jurisdictions which still wish to use the bvc to give their lawyers a world class qualification – if a structure were developed which made more use of the practising profession as such (ie not simply of those practitioners who sit on bar council and bsb committees) to steer a reformed bvc in a positively practical direction for the benefit of profession and public alike.we need to go back to basics, or even back to the future, to utilise the input and free tutor force of the inns in collating the contribution that now needs to be made by the practising profession – with considerable benefits to chambers to modernise the bvc and pupillage, in partnership with the bvc providers. then it might be time to talk about developing the bvc wholly to masters level and/or for a masters or an mba equivalent to upgrade the bvc qualification for those who do not want to stay at the self employed or employed bars, and to hone the bvc to take advantage of all the technical advantages and sophisticated know how which contemporary advances offer. the denning law journal 251 denning law journal 2007 vol 19 pp 251-257 case commentary a beacon against the passage and implementation of repressive law charkaoui v canada (citizenship and immigration), 2007 scc 9 (23 february 2007), docket 30762, 30929, 31178 dr jocelynne a scutt∗ facts following the felling, by aircraft, of the twin towers of the new york world trade centre on 11 september 2001, western democracies have each passed a raft of ‘anti-terrorist’ or security legislation consistently criticised for breaching human and civil rights. on february 23rd 2007 the canadian supreme court unanimously determined that provisions of immigration and refugee protection act 2001 (canada) purporting to protect citizens from terrorism and terrorists infringe the canadian charter of rights and freedoms ‘the charter’).1 albeit not going as far as the applicants wished, the decision is an affirmation that governments and parliaments do not have carte blanche for restricting the rights of persons within a state’s borders in the name of protection and security. in charkaoui and others,2 adil charkaoui, a morrocan national, spent 21 months in jail under a ministerial security certificate as a suspected terrorist.3 the supreme court denied constitutional validity of elements of a scheme established by the immigration and refugee protection act (‘the act’) giving the minister of citizenship and immigration and minister of public safety and emergency preparedness power to issue certificates ∗ barrister & human rights lawyer, owen dixon chambers, 205 william street, melbourne, victoria 3000. 1 charkaoui v canada (citizenship and immigration), 2007 scc 9 (23 february 2007), docket 30762, 30929, 31178. 2 ibid. 3 ‘adil charkaoui was a permanent resident when, in may 2003, he was arrested and stated to be inadmissible under a certificate issued by the authorized ministers, and upheld by the designated judge of the federal court, on the basis of information that was partly secret. the portion of the evidence that was disclosed included an identification of mr charkaoui by persons who were probably involved in the alqaeda network’ (adil charkaoui v minister of citizenship and immigration, et al). case commentary 252 declaring foreign nationals or permanent residents inadmissible to canada on security grounds. a person named in such a certificate could be detained indefinitely, albeit the detention was subject to review. for a permanent resident, the review was required within 48 hours. for a foreign national, automatic detention was subject to review but only after (a) a judge had determined that the certificate was ‘reasonable’; and (b) 120 days had elapsed after that judicial determination was made. no appeal or judicial review of the judge’s determination on the reasonableness of the certificate was allowed. further, if the judge found the certificate to be reasonable, it became a removal order unable to be appealed against and immediately enforceable. supreme court of canada under the certificate and detention review process, a person could be deprived of some or all information on the basis of which the certificate was issued or detention ordered. this was the first basis for the court’s determination of breach of the charter. chief justice mclachlin, with whom justices bastarache, binnie, lebel, deschamps, fish, abella, charron and rothstein agreed, commenced by observing that one of “the most fundamental responsibilities of a government is to ensure the security of its citizens.”4 this may mean a government must “act on information that it cannot disclose and … detain people who threaten national security.”5 however, added mclachlin, in a constitutional democracy “governments must act accountably and in conformity with the constitution and the rights and liberties it guarantees.” “these two propositions describe a tension that lies at the heart of modern democratic governance. it is a tension that must be resolved in a way that respects the imperatives both of security and of accountable constitutional governance.”6 mclachlan determined that the act ‘unjustifiably’ violated sections 7, 9 and 10 (c) of the charter: • by allowing issuances of a certificate of inadmissibility based on secret material without providing for an independent agent at the stage of judicial review to better protect the named person’s interests; 4 ibid, para 1. 5 ibid, para 1. 6 ibid, para 1. the denning law journal 253 • by incorporating arbitrary time limits in the provisions for continuing detention of a foreign national. neither the equality right (s. 15) nor section 12 (‘cruel and unusual punishment’) of the charter was determined to be violated, “since a meaningful detention review process offers relief against the possibility of indefinite detention.”7 charter violation – section 7 section 7 of the charter provides that everyone “has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” both the procedure for determining whether a certificate is reasonable, and that in relation to the detention, were held to ‘fail to ensure the fair hearing’ required by section 7 before the state deprives a person of the right to life, liberty and security. the court held, amongst other matters, that albeit deportation of a noncitizen may not in itself breach section 7, features relating to the deportation may. a feature breaching section 7 was the restriction on disclosure of information to the person against whom a certificate was issued: “under the [act], the government effectively decides what can be disclosed to the named person. not only is the named person not shown the information and not permitted to participate in proceedings involving it, but no one but the judge may look at the information with a view to protecting the named person’s interests.”8 mclachlan questioned why drafters of the act “did not provide for special counsel to objectively review the material with a view to protecting the named person’s interests,” pointing out that this was formerly done for review of security certificates and is presently done in the united kingdom: “the special counsel system may not be perfect from the named person’s perspective, given that special counsel cannot reveal confidential material. but, without 7 ibid, para 3. 8 ibid, para 86. case commentary 254 compromising security, it better protects the named person’s s. 7 interests.”9 this was not, however, the only issue. the scheme of the act not only circumscribed the person, the subject of the certificate, or detention. as well, it placed judges in an invidious position, limiting their capacity for decisionmaking. judges were required to make determinations without the benefit of the adversary system, albeit it is that system which purportedly governs the review process and is fundamental to the justice system. if full information is not disclosed to the subject person, or at least to special counsel as the court decided it should be, the judge is deprived of any critical analysis or questioning of the material put forward to justify issue of a certificate or imposition of detention. there will be no cross-examination of those providing the information, no countering evidence, and no possibility for contradiction. there can be no useful challenge to it. hence, both the rights of the subject person and proper operation of the justice system in itself could not sustain the procedure. the court determined that the government and parliament should have 12 months in which to review this aspect and amend the legislation so as to comply with the requirements of section 7 of the charter. charter violation – sections 9 and 10(c) section 9 of the charter says: “everyone has the right not to be arbitrarily detained or imprisoned.” section 10(c) provides that everyone “has the right on arrest or detention … to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.” the court held that automatic detention of foreign nationals was not arbitrary on the ground of its being effected without regard to the personal circumstances of the detainee: “detention is not arbitrary where there are ‘standards that are rationally related to the purpose of the power of detention’ … the triggering event for the detention of a foreign national is the issuing of a certificate stating that the foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organised criminality. the security ground is based on the danger posed 9 ibid, para 86. the denning law journal 255 by the named person, and therefore provides a rational foundation for the detention.”10 however, the court held that the 120 day limitation imposed on foreign nationals was arbitrary, so breaching the charter. the court made the obvious point that if permanent residents against whom a certificate has issued have a right to an automatic review within 48 hours, there could be no justification for setting 120 days for foreign nationals. the court said it was clear “there may be a need for some flexibility in regarding the period for which a suspected terrorist may be detained”: “confronted with a terrorist threat, state officials may need to act immediately, in the absence of a fully documented case. it may take some time to verify and document the threat. where state officials act expeditiously, the failure to meet an arbitrary target of a fixed number of hours should not mean the automatic release of the person, who may well be dangerous. however, this cannot justify the complete denial of a timely detention review. permanent residents who pose a danger to national security are also meant to be removed expeditiously. if this objective can be pursued while providing permanent residents with a mandatory detention review within 48 hours, then how can a denial of review for foreign nationals for 120 days after the certificate is confirmed be considered a minimal impairment?”11 the court struck the 120-day provision, and modified the act so as to allow for review of the detention of a foreign national both before and after the certificate has been deemed reasonable. no charter violation – sections 12 and 15 section 12 provides that everyone has “the right not to be subjected to any cruel and unusual treatment or punishment”. section 15 holds every individual as “equal before and under the law” with the right to “the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability”. like the un convention on the elimination of all forms of racial discrimination, the 10 ibid, para 89. 11 ibid, para 93. case commentary 256 charter specially allows for differential treatment of citizens and non-citizens in matters relating to immigration: unlike the un convention, section 6 of the charter limits this to deportation matters: only citizens are accorded the right to enter, remain in and leave canada. therefore, the court held that a deportation scheme applying to non-citizens and not to citizens “does not, for that reason alone, violate s 15 of the charter …”12 the argument was that the act could in some circumstances result in discrimination: • detention may become indefinite with deportation being put off or becoming impossible if, for example, there is no country to which a person can be deported; • the government could ‘conceivably use the [act] not for the purpose of deportation, but to detain the person on security ground’.13 in both situations, detention would no longer be related, “in effect or purpose, to the goal of deportation.”14 the court acknowledged the decision in a v secretary of state for the home department,15 where the english house of lords considered legislation expressly providing for indefinite detention, which was held to go beyond the concerns of immigration legislation, so wrongfully discriminating between nationals and non-nationals. in the present case, however, the court decided that albeit some appellants had been held for a long time in detention, and detention was continuing for one, “the record on which we must rely does not establish that the detentions at issue have become unhinged from the state’s purpose of deportation.”16 further, the court said that ‘more generally’, the concerns here raised would be answered in an effective review process permitting all relevant matters to be considered by the judge. this was dealt with by the court’s earlier holding as to this aspect. as to section 12 of the charter, the court held that extended periods of detention under the act’s certificate provisions would not be cruel and unusual punishment so long as accompanied by “a process that provides regular opportunities for review of detention, taking into account all relevant factors,”17 including: 12 ibid, para 4. 13 ibid, para 130. 14 ibid, para 130. 15 [2005] 3 all er 169, [2004] ukhl 56. 16 charkaoui, ibid, para 131. 17 ibid, para 3, 110. the denning law journal 257 • reasons for detention; • length of detention; • reasons for delay in deportation; • anticipated future length of detention; and • availability of alternatives to detention: breach of rule of law – subsumed within charter breach/non-breach as to arguments that the act breached the rule of law, the court held that the provisions of the charter covered any principle that might be characterised as a breach of the rule of law. no breach of the rule of law beyond the breaches of the charter had occurred. it was ‘hard to see’, said the court, ‘what rule of law could add to’ the charter provisions, insofar as relating to the issues in the case. conclusion in the past, during the glory days of the warren court, the united states supreme court could be looked to in the advancement and protection of civil rights. the european court of justice now plays a more significant role. the canadian supreme court, too, is rapidly overtaking its neighbour in providing hope to litigants and lawyers concerned about the rapid rise of restrictive and human and civil rights denying laws and policies in countries which once moved forward progressively on these fronts. albeit the outcome could have been more favourable to the appellants, the decision stands as a beacon against the passage and implementation of repressive laws denying just processes and, hence, just outcomes, to non-citizens. in so doing, it affirms also that even if governments and parliaments (increasingly under the control of the executive) renounce civil liberties and human rights, the judiciary may retain the capacity for travelling in the other direction. two kinds of justice: human and devine the denning law journal 21 the denning law journal 2008 vol 20 pp 21-33 the eu constitution: what next? october 11th 2005 the lord slynn of hadley european law foundation william wallace∗ i want to start with five opening propositions, to set the context for a discussion of where we go from here. 1. first, the gradual development of european institutions has been marked by a long succession of crises, several of which looked at the time to threaten the future of the entire structure, though in retrospect they can be seen as the mechanisms which forced reluctant governments to accept change. european integration first collapsed in 1953, with the french national assembly’s rejection of the treaty to establish the european defence community. it seemed close to collapse again, also as a result of french intransigence, in the luxembourg ‘empty chair’ crisis of 1965-6. at the depth of the budgetary crisis in 1981-3, american observers were writing off european integration as a failure – before margaret thatcher and francois mitterand came to a compromise in fontainebleau in 1984. the danes voted down the maastricht treaty, and the french only narrowly approved it. so we should not be too rattled by the latest crisis; though we need to consider whether this crisis is more severe than its predecessors, and in what ways. 2. second, institutions exist to make and implement policies, not for themselves. jean monnet, who had a decisive influence over the original design of the european coal and steel community in 1950-52, and then over euratom and the european economic community in 1956-57, believed that institutions were key in encouraging those who worked through them to seek common solutions; but he was also quite clear that the institutions were only justified if they did successfully promote common solutions, satisfactory for all the participants. 3. third, the institutional structures and policy acquis of the european union still reflect the assumptions and priorities of 50 years ago – before the majority of today’s european citizens were born. they reflect, furthermore, the priorities of the six original members, above all of france and germany. the european parliament, for example, still holds its plenary sessions in ∗ lord wallace of saltaire. the eu constitution: what next? 22 strasbourg, a city which symbolises the century-long struggle between france and germany and the post-1945 effort to reconcile these two former enemies. the council of ministers still meets in luxembourg three months out of 12, the outcome of a compromise negotiated among the six member states when the three original communities were merged 40 years ago, to compensate luxembourg for the loss of the coal and steel community headquarters. but the eu now has 25 member states, likely to extend to 27 within the next 2-3 years, and past 30 within the next decade, as the states of south-east europe follow each other into full membership. reluctant adjustment of the original model to accommodate some of the interests of the new members may not be enough; institutional change should arguably have started from a recognition of how fundamentally the end of the cold war, the unification of germany and the re-emergence of the states of central and eastern europe from behind the iron curtain had transformed the context for european integration. 4. fourth, it was a huge and vainglorious mistake to label this relatively modest adjustment to the existing treaties a ‘constitution’. it was, after all, the fifth adjustment to europe’s institutional arrangements in less than 20 years – following the single european act of 1986, the maastricht treaty of european union of 1992, the treaty of amsterdam of 1997, and the treaty of nice of 2002. it was in many ways less innovative than the maastricht treaty in institutional and policy reforms. the flummery of the convention promised much more than it could ever deliver. this long, detailed, three-part treaty was not what the eu heads of government had asked for in the laeken declaration of december 2002; they had called for a short, easily-understood document, which europe’s citizens could read and grasp. the gap between the high-flown title and rhetoric, and the lengthy, almost unreadable document that the convention produced, contributed to the confused responses of the european electorate. 5. fifth, the convention did not deliver a constitutional treaty that addressed the needs of the eu-25, or today’s policy priorities – or the tasks set out for it by the european council that set it up. i share the view of gisela stuart, mp (one of the british representatives on the convention and a member of its presidium), that the convention was captured by those who see the eu from brussels out rather than from member states in; that these ‘old believers’ saw their task as defending the established institutions, and the established acquis, pursuing the old ‘european project’ rather than defining a new one. their failure to produce a short document was symptomatic of this; part three was included to entrench the existing acquis, rather than accepting that much of its contents were legislative rather than constitutional and therefore open to continuing adjustment. they failed to address the size, and the denning law journal 23 ineffectiveness, of the college of commissioners. they resisted a stronger subsidiarity clause, and watered down proposals to give national parliaments a stronger role in policing new proposals on subsidiarity grounds. this was, at best, a curate’s egg of a treaty. most responsible people, even in brussels, now accept that the constitutional treaty as it stands is dead. the french government has effectively pronounced it dead, by stating that it can see no way of resubmitting to the french people in a referendum. the questions we need to address, therefore, include: can we manage without a further treaty change for the foreseeable future; how much can we rescue from this failed attempt, or do we have to start again, with yet another inter-governmental conference, perhaps preceded by another convention? how severe a setback is this? i spent three days in brussels last week. the european parliament is still meeting, with commission officials giving evidence to committees and national officials from the permanent representations keeping watch. the chemicals directive is under active negotiation, with lobbyists swarming in the corridors; the services directive is still vigorously debated. the ‘european quarter’ of brussels, which i remember from 40 years ago as a pleasant jumble of streets and 19th century houses, is still expanding, with building workers erecting yet more grandiose buildings. the british presidency is busily preparing for an informal european council, to discuss broader issues of european priorities, at hampton court at the end of this month, with officials travelling around european capitals for preparatory consultations. at the formal european council in december there will no doubt be a major franco-british row, at least one late-night session, and eventual agreement on some limited steps forward – perhaps even on the next eu budget package. we should never underestimate the degree of inertia in the system. however, while some commentators have talked about institutional paralysis, cooperation continues to move forward in many fields. while the stability and growth pact, written on german insistence into the 1992 maastricht treaty, has been shaken by the delinquent behaviour of the italian, french and german governments, other fields of european integration have moved forward remarkably, and often almost unobserved. because the institutions are there, with recognised procedures for convening meetings and implementing their conclusions, governments tend to turn to them when new problems arise that cannot be dealt with without close cooperation. six years ago, for example, the european union had nothing to do with defence. today the political and security committee, the eu military committee, and their the eu constitution: what next? 24 staff within the council secretariat are responsible for the political stabilization and reconstruction of bosnia, for related operations in macedonia and kosovo, and for various support operations in africa. relations between this strengthened eu and a weakened nato1 are a matter for active concern in brussels and in national capitals. you will all be familiar with the even more remarkable transformation of cooperation in the field of ‘justice and home affairs’2 – cooperation among law-enforcement agencies, prosecuting authorities, and courts – since the end of the cold war demolished western europe’s well-guarded eastern wall. even as the convention has been meeting, the european arrest warrant3 has been carried forward; europol’s4 powers and staffing has grown; and eurojust5 has got under way. it was the perceived threats of transnational terrorism and organised crime that first pushed west european governments into cooperation in these fields, 25-30 years ago; the sharpening of these threats, evident to all in the past 4 years, has overridden national hesitations about legal integration, even about retaining and sharing personal data, with the british government in the lead in pushing others to abandon concerns about sovereignty and accept common rules. we might therefore argue that the eu is moving in the right direction, on a new agenda, without waiting for treaty reform. yes, agreement is still blocked on reform of the eu’s budgetary arrangements, and the gradual transformation of the common agricultural policy is painfully slow in reducing its costs; but european governments are now developing common policies on fields which were completely taboo to those who negotiated the original treaties, and which are much more appropriate to the loose confederation that the eu has in effect become than the detailed regulations that the commission continues to propose. these more appropriate common policies, i repeat, are foreign policy, including security and defence, common management of external borders and of the rules covering those who cross them, confederal police arrangements, and gradual integration of legal procedures. this does represent real progress, we should all recognise. it is typical of the british press that a commission proposal to criminalise environmental misbehaviour by companies received front-page treatment a few weeks ago, while the rapid return to britain of a suspected terrorist arrested in italy was in no way attributed to eu legislation; but you all know how significant the steps forward in extradition have been in recent years. all of this suggests that the eu is not going to disintegrate; it’s a solid structure, 1 north atlantic treaty organisation – www.nato.int/ 2 www.mjha.gov.mt/departments/departments.html 3 13th june 2002 www.eurowarrant.net/ 4 european policy office – www.europol.europa.eu/ 5 fight against serious organised crime – www.eurojust.europa.eu/ the denning law journal 25 that serves the interests of its member governments well in an expanding number of fields. the character of this political crisis alongside this, however, there are some worrying aspects of the current crisis that do suggest that we may face a more severe situation than in previous crisis years. first, the crisis in confidence in the eu institutions, and the willingness to implement eu decisions, is deepest in what used to be described as ‘core europe’: the major states of the original eec-6, italy, france and germany. in some ways the crisis within italy may, indeed, present a more fundamental challenge to the eu than the failure of the constitutional treaty. here is a state which is part of the eurozone, whose labour costs have worsened by 20% against germany in the past 4-5 years; with a government that appears incapable of addressing necessary economic reforms; with strong elements of patronage and corruption, compounded by government attacks on the judiciary when these are investigated; which has resisted the implementation of eu rules in many fields, over many years; with a weak opposition, which seems unlikely to transform the situation if it wins the next election. the eu has operated for nearly 50 years on the basis that member governments accepted and implemented community law, even if under protest. what happens if one major member state ceases to give priority to common rules and common interests in key areas of national economic policy? how would the eu collectively, and the eurozone in particular, respond to a structural political-economic crisis in italy? the situation in france is much less severe; though it is fair to say that there is a crisis of confidence within the french political class. one of my friends in paris told me, in the wake of the referendum result and the award of the olympics to london, that he now understood what the mood in paris must have been like in june 1940, in terms of lost direction and hopelessness about future alternatives – an exaggeration, i hope, but an indication of how badly the parisian elite had misjudged their public. french politics is blocked for another two years, until president chirac, the dinosaur of european politics, retires. given the widespread mood of resistance to globalization, however, both within the public and the official elite, and the increasing identification of the eu-25 and its supposed ‘anglo-saxon’ majority with the threat of globalization, it’s not clear that president chirac’s successor will be able to transform french policy. but at least the french economy is fundamentally stronger than italy’s, and the generation who believed that europe could only be europe if france led it is getting older. there was a hope that the blocked processes of socio-economic reform within germany would be unblocked by a decisive outcome to last month’s the eu constitution: what next? 26 federal elections. that has not happened. it was too simple, in any event, to hope that a change of government could transform a political mood that has much deeper roots, let alone sweep away the complicated obstacles to change within germany’s federal and corporatist structure. the german public, like the french, are deeply ambivalent about globalization as a free market project – as it seems to them. their social market model is not a complete failure, in spite of what anglo-saxon economists are tempted to argue; the german economy has maintained a far higher level of advanced manufacturing than britain, germany is the world’s third largest exporter, and exports far more to china in particular than does britain. but a declining and ageing population, compounded by continuing long-term unemployment in the former east germany, a rising federal budget deficit, and deep unease about eastern enlargement, have left german political leaders with little sympathy for a new european agenda. joschka fischer6 summed up his country’s mood of uncertainty in a speech in london last july: ‘in 1989’, he said, ‘europe’s back wall fell off, and we still do not know what to put in its place.’ the disregard that all three of these governments have displayed towards the rules of the stability and growth pact also presents a worrying challenge to the supremacy of community law. large states, like small, must obey common rules; otherwise the system begins to disintegrate. the argument that the dutch had to follow the rules, but that their larger neighbours could trample over them, was wielded by opponents of ratification in the dutch referendum. more widely than this, however, the negative votes in these two referendums have exposed the loss of confidence of european publics in their political elites. european integration, after all, was, from the outset, an elite project. governments assigned authority to technocrats in brussels, with committees of national officials to monitor them; so long as their negotiations delivered faster economic growth, the promoters of the eec believed, europe’s citizens would grant their ‘passive consent’ to what had been agreed. such a model could work in the 1950s and 1960s, in european societies where mass parties, churches, trade unions and professional associations provided legitimising links between mass publics and political elites. but it does not work in the anxious and ageing european societies of today, where challenges to national identity are posed by rapid economic change, the impact of globalization and multinational companies, and rising immigration. this was the clearest lesson of the dutch referendum, the first to be held there since 1815. an uncertain political class presented the old arguments for european 6 german foreign minister and vice chancellor in the government of gerhard schröder 1998 – 2005. the denning law journal 27 integration to their electorate, and received a resounding vote of no confidence, as strongly from the younger generation as from the old. across the whole of western europe, there is a mistrust of political leaders of the conventional type, a decline in party loyalty and membership, even a degree of disillusion with democratic politics. the convention, with an ex-president of france who was 76 when it started, and former prime ministers from belgium and italy as its vice-chairs, looked like a conspiracy of elites to distrustful publics, rather than a gathering of the wise. that disillusionment with conventional styles of leadership makes the task of setting a new agenda for the eu much more difficult. the commission, the ultimate technocratic elite institution, no longer has the legitimacy to define a common agenda; but the political systems of the major member countries no longer recruit and promote the sort of leaders who are willing to take shortterm risks to attain long-term gains, and who can persuade their electorates to follow them. the opportunities this crisis offers so far i have said very little about the constitutional treaty and what we should do next about treaty reform. that is, i repeat, because i believe that constitutional structures can only go some way to correct underlying political, social and economic weaknesses, and that institutions should be designed to promote preferred policy outcomes, not – as in effect happened within the convention – with only passing reference to the policies they serve. it’s also because i consider part of the problem with the convention and the text that it produced requires more fundamental criticism. the convention failed to question the underlying assumptions of the original model of west european integration: a model which, as giandomenico majone has argued in his excellent new book, dilemmas of european integration, was build to promote ‘integration by stealth’, with a european federation as the eventual (but undeclared) objective, and the european commission – and the european court of justice – as its driving forces. little by little, authority over fields of domestic policy would be transferred to brussels, in a gradual but one-way process, slowly transforming the commission into the effective european government, to which national governments would have to defer. the refusal of european publics to support this transfer of authority has been evident for the past 20 years or more; but the dream has lingered on within brussels, with wider support from some in luxembourg, rome, paris and even berlin. president giscard’s comparisons of the convention’s task with that of the philadelphia convention of 1787 suggested that he and others believed that the time was now ripe to transform the eu into a full federation the eu constitution: what next? 28 – even though what they produced was only the equivalent of a revision of the articles of confederation. it’s important to underline how liberating the failure of the constitutional treaty has been for those of us who believe in the necessity of closer european cooperation, within a clear legal framework, but who wished to criticise the structure and operation of our current institutions and the policy acquis that has accumulated over the past 50 years. there were intense pressures not to criticise the commission, for example, for those of us who regularly dealt with brussels; to query the commission’s role, or the acquis, or even the balance of the common budget, was to risk dismissal as an anglosaxon, even a eurosceptic. the debate about supporting or opposing ‘europe’ was conducted, in brussels as well as in many national media, in black and white terms, rather than in the shades of grey that ought to characterise democratic debate. many, like me, who were preparing to campaign for a ‘yes’ vote in a british referendum, in support of a document about which we felt deeply ambivalent, now feel freed to debate the absurdities of the common budget, the failings of the established institutions, and the need to return some regulatory powers to national and sub-national governments. the shock of the referendum results has broken the old taboos. the rhetoric of pursuing the ‘european project’, of calling for ‘ever closer union’ negotiated through successive revisions of the treaty has given rise to the reasonable suspicion that the aim for some players within the eu system is still to move, little by little, towards a european federation, without admitting that hidden objective. i think that political elites would do much to regain the confidence of their publics if they stated clearly that a european federation is not a practical or desirable objective within the foreseeable future; but that what we have created over the past 50 years, and particularly over the past 20 years – since the single european act – is a confederation, which has served the wishes of its member governments and publics to strike a balance between autonomy and integration relatively well. we have an established system of federal law, and a widening range of common policies, negotiated among member governments. this is not a unique political entity, as enthusiasts for the ‘community method’ have described it: it’s a recognisable confederation. the issue at stake then becomes how to make our confederation work more effectively, rather than how to erect a grand new edifice on top of it. a pause for reflection? heads of government agreed after the french and dutch referendum results that they would now promote a ‘period of reflection’ before returning to discuss the future of the constitutional treaty. so far, few of them have the denning law journal 29 reflected any of their thoughts in public. what, then, should they be reflecting on? one focus, as i have just suggested, should be on improving the effectiveness of the eu’s current institutions and their output. one of the many factors in the mood of disillusion about the european union, even among those who deal directly with these institutions, is that their performance and output is in many areas below the level we ought to expect. of course, any multi-national institution suffers from structural inefficiencies compared to national administrations; there is a lower level of mutual trust, an unavoidable concern for national balance in appointments, promotions and policy decisions. but the quality of the service that the eu commission provides to many of its customers is unacceptably low. as an academic i am conscious that dg research,7 for example, has a settled tendency to send out requests for contracts with short deadlines, most often in july with a deadline for completion of a complex proposal by the end of august – a convenient timescale for commission holidays, but the most unhelpful timescale for the academic community throughout the eu. and i could cite similar examples from other directorates-general. the commission has imposed stringent standards on applicant countries, in terms of quality of administration, opportunities for women and ethnic minorities, and so on; but it does not fully observe all these standards itself. it is stuck with a 1960s template of staff consultations and unions; internal morale is poor. it needs the respect of national administrations, multinational companies and other clients; the quality of its economic analysis, the timeliness of its proposals and reports, all need improvement. more than this, the commission needs a cultural change. its staff should not see itself as building europe’s future government; they are providing an essential service for the european confederation. they should not be working against national governments, in competition with the council secretariat; they are working with them in a collective exercise. bureaucratic rivalry between different directorates-general belies the self-image of the commission as a coherent body; it might be more efficient to hive some of the commission’s functions off into separate agencies, performing specific regulatory tasks. implementation of eu policies and decisions has always been one of the weakest points of the eu policy process: neglected not only by the commission and the european parliament, but also by many national governments. as you all know, the final sanction for non-implementation has been to take national governments to the ecj8 – but that is a long and slow 7 directorate general responsible for science, research and development – european commission – ec.europa.eu/research/ 8 european court of justice – curia.europa.eu/ the eu constitution: what next? 30 process – undesirably slow. there are some classic examples of nonimplementation: the french government, for example, has never enforced the common fisheries policy on its own fishermen, according to a french study; the belgian government is incapable of applying the waste water directiveto the mosaic of flemish and french-speaking communes that constitute greater brussels – which means that new member countries are now struggling to meet environmental standards that do not operate in europe’s institutional capital. i have been glad to hear members of the european parliament say, since the referendums, that they intend to pay more attention in future to scrutiny of implementation. the commission ought to pay more attention to this, too; it has pursued fraud within the common agricultural policy with increasing vigour, and the internal market directorate-general has published league tables of national incorporation of directives, but the monitoring of implementation on the ground is beyond its legal competences. i would like to suggest that we should spread across the entire field of common policies the innovation adopted within the inter-governmental third pillar, where mutual inspection of border controls and court procedures has developed through multinational teams from several member states inspecting national practice. [i once met a happy british policeman who had just returned from several weeks inspecting greek border controls, visiting one island after another.] a confederation should make more use of such procedures, with far more exchange of officials between national and eu levels of administration and between different national administrations, on secondment. lawyers contributing to this period of reflection might also like to offer proposals on how to improve the delivery of community law. as you all know, the caseloads of the ecj and the court of first instance have mushroomed in recent years; by 40% for the ecj in the 1990s, with the recent enlargement likely to increase the flow further. delays have grown with the caseloads. the average wait for a preliminary reference to the court of justice in 2004 was 23.5 months, with 840 cases still pending at the end of the year. the legal profession across the eu might usefully consider collectively how best to handle this bottleneck. the convention was deeply ambivalent about the issue of subsidiarity – another important focus for reflection now that the referendums have blocked the treaty they proposed. the recent proposals by commission president barrroso and commissioner verheugen to withdraw some 70 legislative proposals is an important signal that the commission understands that piling regulation on regulation is not the way forward – nor the way to regain the consent of european electorates. but, i suggest, the commission, and member governments, need to go further, in reversing the flow of detailed regulations upwards. of course it is extremely difficult to agree on what the denning law journal 31 fields of policy should be dealt with at what level: battles over state’s rights and federal pre-emption are staples of federal politics within the usa, as well as in the weaker federations of canada and australia. the united kingdom has been no better than others in pressing its particular concerns on the eu; the antis in the dutch referendum campaign made great play with the zoo directive, a piece of legislation pressed forward by the british animal welfare lobby. i recall a lords enquiry on a commission proposal to standardise permitted alcohol levels in blood for drivers throughout the eu – for a community which has remarkably diverse attitudes to driving and to the enforcement of driving regulations. one simple test of appropriateness might be that any regulation and directive that has transferred authority to brussels that within the federal united states remains with the component states should be open to challenge. the constitutional treaty did offer national parliaments a slightly stronger role in policing new proposals for their appropriateness in our diverse eu-25. but there’s no need to wait for treaty change before national parliaments change their habits, and improve their cooperation. almost all national parliaments now have liaison offices in brussels – a major development, almost unobserved, within the past five years; better-organised scrutiny committees, working more closely together, would establish the political influence to block unnecessary proposals that the treaty has offered. we also need a public debate – not just an occasional reflection among heads of government – about policy priorities for a european union which now has 25 members, and will shortly expand further to 27-8. here the british government is as badly at fault as any of its partners. our prime minister has been virtually silent on eu priorities since his excellent speech to the european parliament in june. british ministers find it hard to resist the temptation to preach at their continental colleagues, thus feeding harmful stereotypes about anglo-saxon liberalism destroying europe’s social model. we need political leaders to discuss constructively the difficult compromises we are all attempting to strike between economic innovation and social solidarity, between ageing populations and resistance to immigration, between rising pressures on public expenditure and popular resistance to high taxation. the lisbon agenda on european economic reform has run into the sand partly because those who promoted this new agenda – the british among the leaders – have failed to make their case persuasively to the publics of other states. we have a similar problem with public debate over common foreign policy – an area in which there is clear added value in member states working more closely together. it was the british government, together with the french, that launched the proposal for european cooperation in defence, in the eu constitution: what next? 32 1998; now that the process is moving ahead, british ministers are silent, apparently for fear of attack in our eurosceptic domestic press. a focus on developing policies in fields where there is a clear advantage to be won from common action – and funding policies where there is a clear european public good – would lead the eu to a stronger emphasis on foreign policy, and on relations with its eastern and southern neighbours. it would also strengthen awareness of the value of common policies on policing, immigration, and justice, areas largely unreported or recognised in the media. and it would focus more, i suggest, on environmental issues, and on the whole sustainability agenda, which is likely to become a more and more central issue in domestic and international politics in future years. this is also an area which would help the distant institutions of the eu to reconnect with the younger generation of european citizens. and, of course, political leaders must address the thorny issue of further eu enlargement, which is another area in which national publics suspect governments of failing to take their preferences into account. this is a subject for another lecture – though an immensely important and complex issue. i will just say here that the british government has throughout been one of the main sponsors of turkish accession, but – again – has done little to make the strategic and cultural case for that accession to publics either within britain or elsewhere within the eu. but what about the treaty? if governments press ahead with the non-treaty reforms i have suggested, and engage in the debate about policy priorities which was absent from the convention and its procedures, can we then manage without further treaty reform? the case that was argued for the convention and constitutional treaty was, in part, that eu decision-making would break down under the strain of 25 member states. so far, however, the eu has continued to operate at 25 without breakdown, although suffering the unavoidable lengthening of meetings in which 25 representatives in succession wish to have their say. i want to suggest that there remains a limited, but necessary, agenda for constitutional reform, which can be accommodated by the resubmission for ratification of part 1 of the constitutional treaty, most probably – here i bow to more expert legal opinion – with part 2, the charter of fundamental rights, also attached. thankfully, even members of the convention now accept that it was a mistake to incorporate part 3, almost unexamined, into the treaty. the most important elements should include the adjustment to the voting rules that the nice treaty failed to agree; the strengthening of the eu’s external policy capacities provided for in the creation of the post of eu foreign minister and of a joint eu external action service; and changes in the the denning law journal 33 council, including moving from the current rotating presidency to longer-term team presidencies. i have mixed views about the desirability of a new president of the european council, which risks building competition among senior appointees into the structure of the eu. i regret that the convention only took such a small step towards limiting the size of the commission – now 25 commissioners, one from each member state. i strongly support the french proposal for a college of 11-13 members, chosen from a short list submitted by member governments: that would produce a far more effective body. but the tensions and suspicions between the larger and smaller states blocked agreement on this so far. we should note, in passing, that the balance between large and small component states is a structural issue in any federation or confederation, and that the constitutional treaty as it stood did not address the underlying balance to be struck. if political leaders within the eu recover their confidence and their ability to address issues in europe-wide terms, we may anticipate that such a more limited revision of the treaties may prove acceptable to our suspicious electorates. but it will require an honest and open debate, beforehand, about the eu’s strategic purposes and priorities, to prepare opinion for these desirable changes. constitutions, after all, exist to serve agreed political objectives, within defined territories. they do not exist for themselves. the natural law foundations of lord denning's thought and work *andrew phang i. introduction there is a constant tension in the law between certainty on the one hand and fairness on the other. while it is true that both are not necessarily incompatible with each other, there are numerous occasions when conflicts do occur. not surprisingly, therefore, the focus in english and (probably) commonwealth law is on the former. this explains, in large part, the rule-oriented and positivistic nature of law 1 in these various legal systems. 1 the primary concern in this regard is wi~h the maintenance of the objective and, consequently, of stability, eschewing any descent into the vagueness and subjectivity that a contrary approach might entail there is, in other words, no necessary connection as such between the law on the one hand and morality on the other. while there is much merit in this approach inasmuch as it avoids unnecessary uncertainty once the applicable legal rule(s) have been identified, it loses force if it can be demonstrated that the law is premised on an objective set of higher-order morality. lord denning's thought and work (as encompassed within both his legal judgments as well as extra-judicial writings and lectures) in fact evince an approach thjt is based on the assumption that there are in fact objective • associate professor, faculty of law, national university of singapore. this is a highly abbreviated version of a lengthier paper. the full version jrnay be obtained from the author (c/o the faculty of law, national university of singapor,e, 39 law link, singapore 117589; e-mail: lawapbl@nus.edu.sg). i am grateful to ms.rosemary dunhill, county archivist, hampshire record office, and her staff for all their help in retrieving materials from the denning archive; to ms.sheena mcmurtrie, editor of the denning law journal, for all her kindness and assistance; as well as to mr.aqbal singh for his comments and encouragement. all errors, however, remain mine alone. 1 see eg p.s.atiyah and r.s.summers, form and substance in anglo-american law (clarendon press, 1987); p.devlin, the enforcement of morals (oxford university press, 1965) at ch.iii, esp. at pp.44 and 51; and a.phang, "positivism in the english law of contract" (1992) 55 m.l.r. 102. 159 denning law journal and universal values. his is a natural law approach, which is premised in no uncertain terms upon a religious foundation or, to be more precise, on a christian foundation. for him, religion and law are inextricably connected together in a symbiotic relationship. there is, to lord denning, a higher (and objective) law, against which all legal rules and principles have to be measured. the objection from subjectivity and relativity does not therefore bother him. and this approach is evident throughout his thought and work. in the sphere of binding precedent or stare decisis, for example, lord denning always championed fairness at the expense of certainty, although the very doctrine itself was concerned more with the latter than the former.2 and such an approach also characterised his activist approach towards the interpretation of statutes.3 in the sphere of substantive law, he was a constant advocate of fairness, even if this meant that the existing legal rules had to be either circumvented or even abrogated altogether. all this was, of course, anathema to the general approach embodied in the commonwealth in general and england in particular.4 indeed, lord denning has been criticised (on occasion even trenchantly) precisely because of his alleged iconoclasm. 5 one oft -cited criticism has been that his approach has engendered excessive uncertainty in the law an uncertainty that has undermined the adjudicative process as well as the attainment of justice. the present essay argues otherwise; its purpose is threefold. i will first outline lord denning's ethical and religious beliefs. i will then briefly explore how his ethical and religious beliefs are manifested (in the process of application, in particular) in the law. finally, i will attempt to assess not only the influences on but also (and more importantly) the possible justifications for denning's beliefs. 2 for an extended discussion by lord denning himself, see lord denning, the discipline of law (butterworths, 1979) at pt.7. however, it is important to note that denning was not against the doctrine of precedent because he championed subjective judicial fiat. on the contrary, he is at pains to point out that the doctrine is still very important: see at p.314. 3 see generally denning, supran.2 at pp.9-22. see also lord denning, the closing chapter (butterworths, 1983) at p.97 et seq, and where, inter alia, there is also biblical reference to adherence to the spirit, rather than the letter, of the law. 4 the position in the united states of america is far more substantive: see e.g., atiyah & summers, supra n.1. 5 and see lord denning himself: "the way of an iconoclast" (1959-1960) 5 j.s.p.t.l. (n.s.) 77 (this address by lord denning was also published in (1960) 3 sydney law rev. 209). 160 natural law found anons ii. lord denning's ethical and religious beliefs in general as already mentioned, the stock criticism of lord denning's thought and work has centred on their perceived arbitrariness and the alleged uncertainty that results.6 as i shall attempt to demonstrate, these 'popular' perceptions of denning's thought and work could not be further from the truth. denning, as already mentioned, perceived his thought and work to be based on the objective truth to be located in the religious foundations of christianity.7 it is, however, perhaps ironic to note that denning himself always claimed to be wary of theory and endorsed experience and practice instead.8 turning to denning's specific enunciations of his beliefs, in a brief typescript entitled "what life has taught me,,,9 lord denning commences by stating that "[t]he most important thing that life has taught me is to believe in god." he then proceeds to state that this belief is due both to his upbringing as well as to his experience "in going through life.,,10 insofar as the experiential aspect is concerned, he says that "[m]y experience as a lawyer and as a judge has verified what i was taught about god." to him, law and religion are inextricably connected: "the aim of 6 the literature on this point is voluminous; and see generally the following excellent collections of essays: p.robson & p.watchman (eds.), justice, lord denning and the constitution (gower, 1981) and j.l.jowell & p.w.b.mcauslan (eds.), lord denning: the judge and the law (sweet & maxwell, 1984). the former collection is far more critical although the latter does not pull its punches either. see also lord wilberforce, "the academics and lord denning" (1985) 5 o.j.l.s. 439 at p.439. 7 see also lord edmund-davies, "lord denning: christian advocate and judge" [1986] denning l.j. 41 at pp.41 and 47. 8 see e.g., lord justice denning, "the independence of the judges" in b.w.harvey (ed.), the lawyer and justice a collection of addresses by judges and jurists to the holdsworth club of the university of birmingham (sweet & maxwell, 1978), pp.55-69 at pp.56 and 62; and, by the same author, the changing law (stevens & sons limited, 1953) at pp.15-16 as well as the family story (butterworths, 1981) at p.240. though cf his article, "the universities and law reform" (1947-1951) 1 j.s.p.t.l. (n.s.) 258 at pp.268-269. 9 on file at the hampshire record office. 10 see also a.t.denning, "why i believe in god" (transcript of a talk delivered on the b.b.c. home service, tuesday, 14th september, 1943 at 10.15 p.m.) (on file at the hampshire record office). all references hereafter will be to page numbers of the transcript itself. see also lord edmund-davies, supra n.7 at p.41, where the learned law lord refers to denning's service as a churchwarden as well as member of the parishional church council. denning was of course also for many years president of the lawyers' christian fellowship. see, further, denning, the family story, supra n.8 at pp.vi and 180-183. 161 denning law journal the law is to see that truth is observed and that justice is done between man and man."!! on another occasion, lord denning observed that "without religion there can be no morality and without morality there can be no law.,,12 as to the question as to what constitute "truth" and ')ustice," lord denning is of the view that they are "eternal" and that they are the product of a person's spirit.13 and as to how the "right spirit" is created in man, lord denning is of the view that "[t]hat is the province of religion" in particular, the christian religion. he elaborates thus: "religion concerns the spirit in man whereby he is able to recognise what is truth and what is justice: whereas law is only the application, however imperfectly, of truth and justice in our everyday affairs.,,!4 indeed, "the spirit in man, when it reaches the highest and wisest plane, is but the reflection of the spirit of god." and in an amazingly candid passage, lord denning states thus: "i do know that in the great experiences of life, and indeed in the small ones too, such strength as i have is of god, and the weakness is mine. need i enumerate the experiences? take the hard things. when faced with a task on which great issues depend; when high hopes lie shattered; when anxiety gnaws deep; or when overwhelmed by grief; where can i tum for help but to god? or take the joyful things: a hard task attempted or done; the happiness of family life; or the beauty of nature; where can i tum for thankfulness but to god? all experiences convince me, not only that god is everpresent, but also that it is by contact with the spirit of god ii see denning, "why i believe in god," supra n.lo at p.2. see also denning, infra n.20 at p:.8. 2 see lord denning, "the right standards of conduct" (1957) law society's gazette 609 at p:.609. this conviction is indeed often repeated in his extra-judicial writings. 3 see denning, supra.n.9 (emphasis added). see also denning, "why i believe in god" supra n.lo at p.2. 14 see denning, supra n.9 (emphasis added). see also denning, "why i believe in god" supra.n.lo at p.3. see, further, by the same author, "address delivered by the rt. hon. the lord denning, master of the rolls, at the annual service on october 6th" (lawyers' christian fellowship, 1977; on file at the hampshire record office; hereafter referred to as "address 1977"). 162 natural law found anons that the spirit in man reaches its highest and wisest plane.,,15 it is suggested that the "spirit of god" denning refers to is probably a reference to the holy spirit, who is also described in the bible, inter alia, as a "counsellor.,,16 in an address to the medico-legal society, lord denning elaborated on the concept of "justice,,1? by stating that it "is what the right-thinking members of the community believe to befair.,,18 the upshot of all this is that: "[l]awyers should be men of religion: and speaking generally that has always been the case in this country. it is the reason why the common law of england is so great. the law has been moulded for centuries by judges who have been brought up in the christian faith. the precepts of religion, consciously or unconsciously, have been their guide in the administration of justice.,,19 in a message given to the quarterly meeting of the lawyers' christian fellowship held at the law society on 22 may 1950, entitled "the influence of religion on law,,,20 denning l.j. (as he then was) observed that "[i]n the days when the bible was first put into english the judges laid down rules which were undoubtedly influenced by bible teaching.,,21 more importantly, perhaps, he points out (in the same message) to "the more fundamental teaching of our lord:,,22 "the gospel of love,',23 i.e., that one is to love god first and then our neighbour as ourselves?4 although "[t]his is a precept of religion, not of morals nor of law,,,25 15 see denning, supra n.9 (part of this passage is handwritten). see also denning, "why i believe in god" supra n.lo at p.4. 16 see john 14: 16,26; 15:26 and 16:7. see also denning, "address 1977" supra n.14. 17 interestingly, in his coat of arms, denning took as his motto, "fiat justitia" viz., "let justice be done:" although he later found the actual origin of this motto to be rather dubious: see denning, the family story, supra n.8 at p.i72. 18 see lord denning, "the freedom of the individual to-day" (1977) 45 medico-legal j. 49 at p.55 (emphasis added). 19 see denning, "why i believe in god" supra n.lo at p.3. see also, by the same author, "the influence of religion" in the changing law, supra n.8 at p.109 (hereafter "influence"). 20 in pamphlet form (bletchley printers ltd., 1950) (hereafter "the influence of religion on law"). see also, by the same author, "influence" supra n.19. 21 see denning, "the infuence of religion on law" supra n.20 at p.2. 22 ibid at p.3. 23 ibid. 24 citing from luke 10: 25-28: see ibid. see also infra n.81. 25 ibid. 163 http://www.ingentaconnect.com/content/external-references?article=0025-8172(1977)45l.49[aid=7390996] http://www.ingentaconnect.com/content/external-references?article=0025-8172(1977)45l.49[aid=7390996] http://www.ingentaconnect.com/content/external-references?article=0025-8172(1977)45l.49[aid=7390996] http://www.ingentaconnect.com/content/external-references?article=0025-8172(1977)45l.49[aid=7390996] denning law journal denning was of the view, nevertheless, that "it is not unrelated to them,,,26 for "[i]n social organisation, love finds its primary expression through justice,,:27 "the two -love and justice are interdependent.,,28 insofar as societal welfare is concerned, in a lecture delivered as far back as 1953,29denning argued that "the welfare state has come into being by a true application of christian principles, but ... there is a danger of its being mishandled and abused by people who have no knowledge of those principles and seek only their own advantage.,,3o denning argues that the recapture of love and service through christian principles is essential to combat such abuse. in the law (i) general: what precisely did lord denning stand for in the more explicitly legal realm? he was, in fact, a passionate advocate of many institutions that are traditional elements underlying the rule of law: for instance, the independence of the judiciary3) and various freedoms (induding freedom of the press32). one overarching theme centres, in fact, on the need to restrain the misuse of power.33 he also advocated equality for women,34 although here writers have argued that denning's judgments (particularly in the sphere of family law) have fallen short ofthe mark. 35 26 ibid. 27 ibid. 28 ibid. 29 see sir alfred denning, the christian approach to the welfare state (the 17th shaftesbury lecture, the chaseton press ofh.williams & son, ltd., 1953). 30 ibid at p.3. 31 see e.g., denning, "the independence of the judges" supra n.8 and, by the same author, "the independence and impartiality of the judges" (1954) 71 s.a.l.j. 345. 32 see e.g., sir alfred denning, the road to justice (stevens & sons limited, 1955) at ch.4 and, by the same author, "law and life in our time" (1967) 41 australian l.j. 224 at p.227 although the learned judge correctly points to the need for balance, so that the freedom not be abused. 33 and see generally denning, "restraining the misuse of power" in jubilee lectures celebrating the foundation of the faculty of law, university of birmingham (wildy & sons ltd., 1981) and, by the same author, "misuse of power" (1981) 55 australian l.j. 720. reference may also be made to lord denning's more recent works: see e.g., the due process of law (butterworths, 1980) and what next in the law (butterworths, 1982) especially at pt.8. 34 see e.g., "the rights of women" in denning, the changing law, supra n.8 at pp.79-98 and, by the same author, the equality of women (eleanor rathbone memorial lecture, liverpool university press, 1960). 35 see e.g., m.d.a.freeman, "family matters" in ch.4 of jowell & mcauslan, supra n.6. 164 natural law found anons it should also be noted that although often perceived as radical, denning did not in fact advocate rampant activism. referring, for example, to the reform of family law in 1977, he was of the view any reform would be too complex and widespread for judge to handle, although he opined that "judge can work on a minor scale within the existing law.,,36 in a later work, denning vigorously denied the charge of being politically motivated; he emphatically stated: "i deny the charge. some decisions are fraught with political consequences such as decisions about trade unions or local authorities or ministers. whichever way the case goes, one side or the other will say it is a 'political' decision. that is their way of saying that it is a policy decision with which they disagree. ,,37 (ii) the law of contract: this area is the primary illustrative focus, although i hasten to add that constraints of space allow only a few areas of contract law to be considered.38 a more general observation by lord denning himself may be apposite before turning to the more specific areas of contract law proper. denning observes that insofar as the law of contract was concerned: "[t]he influence of the church was immense: because the church courts assumed jurisdiction in matters of conscience. originally in english law a promise was not enforceable unless is [sic. j was hedged about with the formality of a seal. but the teaching of the church was in favour of rejecting formalities and insisting on good faith. the just man is 'he that sweareth not his neighbour and disappointeth him not, though it were to his own hindrance. ,39if a man made a promise and did not keep it, 36 see "denning and scarman: a conversation between lord denning, master of the rolls, and lord justice scarman" (bob.c. broadcasting corporation transcript, radio three, talks and documentaries department, recorded wednesday 19th january,1977, transmission: thursday 3rd march,1977, on file at the hampshire record office) at p.9; denning, significantly in my view, then proceeds to talk about consumer protection as well. 37 see denning, what next in the law, supra n.33 at p.333 (emphasis added). see also, by the same author, the family story, supra n.8 at p.28. 38 the reader is directed to professor atiyah's very perceptive overview published shortly after lord denning's retirement: see p.s.atiyah, "contract and tort" in ch.2 of jowell & mcauslan, supra n.6. 39 citing from psalm 15.4. 165 denning law journal the ecclesiastical courts would punish him for breach of faith.,,4o unfortunately, however, contract law today has been secularized, with the emphasis on rationalism and individualism,41 and this may well explain why courts have been unable to mediate objectively the tension (mentioned at the outset of this article) between certainty and technicality on the one hand and fairness on the other. as professor berman pertinently argues, a return to the objective religious foundations will enable a new (and more coherent) theory of contract law to be developed.42 denning would surely agree with this suggestion. turning to the more specific areas of contract law proper, the doctrine of consideration is familiar to all law students. yet, it is not without problems.43 indeed, a strict application of it often leads to injustice.44 this is particularly so, perhaps, in the situation concerning the promise to take part payment in full discharge of a debt already owed; this has, in accordance with the leading authorities (notably that of the house of lords in foakes v. beer45), been traditionally held not to constitute consideration. this being the case, the various exceptions that mitigate possible injustice become of signal importance. in this regard, the most significant exception is the doctrine of promissory estoppel, which has its origins in the seminal judgment of denning j. (as he then was) in central london property trust ltd. v. high trees house ltd.46 briefly put, if one person makes to another an unambiguous representation that he or she will not enforce his or her strict legal rights, intending that other party to act on it, and that party does act on it, then the representor/promisor will not be allowed to resile from his or her promise if it would be inequitable to do so.47 40 see denning, supra n.20 at p.7. see also, by the same author, "influence" supra n.19 at pp-l04-105. see generally harold j.berman, "the religious sources of general contract law: an historical perspective" (1986) journal of law and religion 4 (reprinted in ch.7 of harold j.berman, faith and order: the reconciliation of law and religion (scholars press, 1993)). 42 see berman, supra n.4l. 43 and see the calls for abolition by the english law revision committee in 1937 (cmd.5449). see also a.phang, "consideration at the crossroads" (1991) 107 l.q.r. 21. 44 the recent development in williams v. roffey bros. & nicholls (contractors) ltd. [1991] 1 q.b. 1 has not, however, significantly mitigated such injustice; see, in particular, re selectmove [1995] 1 w.l.r. 474. see also a.phang, "acceptance by silence and consideration reined in" [1994] l.m.c.l.q. 336. 45 (1884) 9 app.cas. 605, reaffirming the so-called rule in pinnel's case (1602) 5 co.rep. 117a. 46 [1947] k.b. 180. 47 this is, of course, a very rough description: much more elaboration is required. 166 natural law foundations the high trees case is commonly hailed as a landmark in the common law of contract.48 however, it was also a radical step forward. to denning himself, the high trees case "helped to narrow [the] gap" between the "strict rules and the social necessities of the 20th century,,,49 thus achieving justice in the process. leaving aside certain problematic aspects of the doctrine,50 when all is said and done, however, denning reminds us once again that the doctrine of promissory estoppel is based on moral foundations; it is a doctrine that aids in the attainment of justice and the avoidance of the technicality and injustice that have been encrusted around the doctrine of consideration. indeed, of the doctrine of consideration, denning says that "[i]t has been replaced by the better precept: 'my word is my bond,' irrespective of whether there is consideration to support it.,,51 more significantly, perhaps, there are resonances of christian principles when he proceeds to add thus: "once a man gives a promise or assurance to his neighbour on which his neighbour relies he should not be allowed to go back on it. in stating the principle, and its extensions, the lawyers use the archaic word 'estoppel'. i would prefer to put it in language which the ordinary man understands: it is a principle of justice and of . ,,52equlty. lord denning was also very activist in the sphere of implied terms, which he viewed as centring on the demands of what he termed "simple justice;"s3 and he made no secret that in implying terms, courts were, in 48 [1947] k.b. 180. see also denning, supra n.2 at pp.197-223 (an extended account by lord denning himself). 49 see denning, ibid at p.197. 50 e.g., the concept of detriment (which denning eschewed: see e.g., wi alan & co v. el nasr export and import co. [1972] 2 q.b. 189 at p.213; but cf atiyah, supra n.38 at p.35 and a.b.l.phang, cheshire, fifoot and funnston' s law of contract second singapore and malaysian edition (butterworths asia, 1998) at pp.202-205) and whether or not the doctrine could be used as a sword as well (which denning also eschewed: see combe v. combe [1951] 2 k.b. 215; though ct, in a separate videotaped interview: m.dockray, e.lomnicka, s.lee & i.fortin, review of the denning interviews (video cassettes of interviews with lord denning of whitchurch) (1985) 101 l.q.r. 137 at p.140 and the leading australian high court decision of walton stores (interstate) ltd. v. maher (1988) 164 c.l.r. 387). 51 see denning, supra n.2 at p.223. 52 ibid (emphasis added). 53 see denning, supra n.2 at p.33. see also ibid at p.34 (reference to "reason and justice"). 167 denning law journal effect, "[filling] in the gaps.,,54 to this end, his assertion, in liverpool city council v. irwin, that the courts could imply terms whenever it was "reasonable" into the contract is not in the least surprising.55 although this general principle was rejected by the house of lords, 56denning actually won a victory of sorts, for in the liverpool city council case itself, the house drew a distinction between "terms implied in fact" and "terms implied in law,,,57 the test of reasonableness and public policy applying to the latter, which constituted a broader category of terms implied in a particular class of contracts, even if this would be contrary to the actual or presumed intentions of the parties concerned. what was particularly interesting was the ambiguity of the language utilised,58 which suggests that the house was not very comfortable with the distinction, in particular, the criterion of reasonableness. denning was nevertheless quick to seize upon this distinction and (naturally) gave it his full endorsement.59 this was not a "full victory" as such, but it represented some headway, so to speak. what is particularly interesting about this distinction in general and the category of "terms implied in law" in particular is the focus on the concept of "reasonableness" that, in tum, correlates to denning's idea of what is "justice.,,6o and ')ustice" is, as we have seen, ultimately linked to denning's own christian values.61 lord denning is perhaps best known for his judgments geared towards aiding (in particular) consumers with respect to exception clauses. this was not, however, always the case. denning, in fact, lamented his involvement in the decision of l'estrange v. graucob, which held that a contracting party is, in the absence of fraud or misrepresentation,62 bound by exception clauses in a contract on appending his or her signature to it.63 but things rapidly (and radically) changed by the time denning was appointed to the bench. the famous doctrine of fundamental breach as a 54 ibid at p.34. 55 [1976] q.b. 319. 56 see [1977] a.c. 239. see also atiyah, supra n.38 at pp.37-39. 57 not explicitly: but the point has been since reaffirmed in a number of cases: see scally v. southern health and social services board [1992] 1 a.c. 294; spring v. guardian assurance pic [1993] 2 all e.r. 273 at 296; and malik v. bank of credit and commerce international s.a. [1997] 3 w.l.r. 95 at 108-109. 58 see generally a.b.l.phang, "implied terms revisited" [1990] j.b.l. 394 and, by the same author, "implied terms in english law some recent developments" [1993] j.bl 242. 59 see shell u.k. ltd. v. lostock garage ltd. [1976] 1 w.l.r. 1187 at 1196-1197. 60 see supra n.18. 61 see e.g., supra n.19. 62 see [1934] 2 k.b. 394. and on the last-mentioned point, see curtis v. chemical cleaning and dyeing co. [1951] 1 k.b. 805. 63 see e.g., denning, supra n.12 at p.610 and, by the same author, the family story, supra n.8 at pp.99 and 174-175. 168 natural law foundations rule oflaw finds its genesis with denning himself. 64it may, in fact, be said that the underlying impetus for denning's approach towards exception clauses stemmed from the perception of the need to prevent abuse which (in tum) is embodied in christian doctrine.65 however, this doctrine was finally (and decisively) rejected by the house of lords in photo production ltd. v. securicor transport ltd.66 notwithstanding the sounding of the death knell for fundamental breach as a rule of law in the photo production case,67 denning could take more than scant consolation in the enactment (in 1977) of the unfair contract terms act.68 on an even broader level is lord denning's controversial statement of principle with respect to inequality of bargaining power that he enunciated in lloyd's bank ltd. v. bundy.69 denning's statement of principle has often been read as embodying too general and vague a standard that only emphasises inequality of bargaining power and does away with the necessity for some form of wrongdoing on the part of defendant. it has therefore been rejected by the courts in no uncertain terms.70 however, it should be noted that prior to enunciating the above statement of principle, lord denning in fact embarked on a fairly detailed survey of the existing law: in particular, the existing categories, all of which in fact involve some form of wrongdoing by the defendant.7] it is true, however, that denning does state that there is no real need for proof of "any wrongdoing."n however, it is suggested that this is itself inconclusive because denning is utilising the concept of "wrongdoing" in the sense of 64 the literature is voluminous. however, for excellent expositions of the doctrine of fundamental breach in the context of exception clauses, see the following works by professor brian coote: "the rise and fall of fundamental breach" (1967) 40 australian l.j. 336; "the effect of discharge by breach on exception clauses" [1970] cll. 221; "the second rise and fall of fundamental breach" (1981) 55 australian l.l. 788; and "discharge for breach and exception clauses since harbutt's 'plasticine'" [1977] cll. 31. 65 see supra n.40. 66 [1980] a.c. 827. 67 ibid. 68 see lord denning, "this is my life" [1986] denning l.j. 17 at p.25. 69 see [1975] 1 q.b. 326 at 339. 70 see e.g., the house of lords decision of national westminster bank pic v. morgan [1985] a.c. 686 at 707-708 per lord scannan. 71 these include duress of goods, unconscionable transactions, undue influence, undue pressure and salvage agreements: see generally [1975] 1 q.b. 326 at 337-339. a notable omission is economic duress, but this is due to the fact that its modem beginnings can be traced to a couple of years after the decision in lloyd's bank ltd. v. bundy itself: see, in particular, occidental worldwide investment corp. v. skibs als avanti (the siboen and the sibotre) [1976] 1 lloyd's rep. 292 (noted, j.beatson, "duress by threatened breach of contract" (1976) 92 l.q.r. 496). 72 see [1975] 1 q.b. 326 at 339. 169 http://www.ingentaconnect.com/content/external-references?article=0269-1922(1986)0l.17[aid=7390992] http://www.ingentaconnect.com/content/external-references?article=0269-1922(1986)0l.17[aid=7390992] http://www.ingentaconnect.com/content/external-references?article=0269-1922(1986)0l.17[aid=7390992] denmnglawjournal the intention to bring distress to the other party, as opposed to a standard embodied in the law itself. there is no reason in principle, in fact, why the courts should not adopt a broad approach analogous to that advocated by lord denning in lloyd's bank ltd. v. bundy.73 i have ventured to suggest elsewhere that the development of the doctrine of unconscionability may be a viable alternative instead.74 another area where lord denning thought that justice ought to be done pertained to contracts to confer benefits on third parties.75 indeed, in an extra-judicial context, he argues that the departure from the christian ethic in the nineteenth century in favour of a philosophy of giving untrammelled reign to the concept of freewill had now been discredited and that, therefore, "it is to be hoped that soon there will be restored the principle that person who makes a solemn promise must keep it" and hence, there should be recognised contracts for the benefit of third parties.76 denning thus strenuously attempted to effect a change in the law in this particular context, but to no avai1.77 recent (and not so recent) events appear, however, to have vindicated denning's views in this particular sphere of contract law.78 73 [1975] 1 q.b. 326. 74 see e.g., a.phang, "undue influence methodology, sources, linkages" [1995] j.bl 552 at pp.570-574 and, by the same author, "economic duress: recent difficulties and possible alternatives" [1997] rlr. 53 at pp.63-64, as well as "tenders, implied terms and fairness in the law of contract" (1998) 13 j. c.l.126 at pp.137-140. this would also meet the objection that there is no element of wrongdoing involved. 75 and see atiyah, supra n.38 at pa5: "lord denning has never had much love for the doctrine of privity." 76 see denning, "the universities and law reform" supra n.8 at pp.261-262. see also supra nao. 77 see, in particular, lord denning's dissenting judgment in scruttons ltd. v. midland silicones ltd. [1962] a.c. 446 and his judgment in beswick v. beswick [1966] 1 ch. 538 (an arproach that was rejected by the house of lords: see [1968] a.c. 58). 7 see e.g., the eurymedon [1975] a.c. 446 and the new york star [1980] 3 all e.r. 257. there have been developments in the australian and canadian contexts as well: see e.g., the australian high court decision of trident general insurance co. ltd. v. mcniece bros. pty. ltd. (1988) 165 c.l.r. 107 and the canadian supreme court decision of london drugs ltd. v. kuehne & nagelintemational ltd. [1993] 1 w.w.r. 1. in addition, and perhaps even more significantly, the u.k. law commission has recently published a report containing proposals for legislative reform the basic thrust of which is to allow third parties to avail themselves of the benefit of contracts under certain stipulated circumstances: see privity of contract: contracts for the benefit of third parties (h.m.s.a., law com. no.242, cm.3329, july, 1996). see also a.burrows, "reforming privity of contract: law commission report no. 242" [1996] l.m.c.l.q. 467. in an even more recent development, the contracts (rights of third parties) bill has just been introduced in parliament. 170 natural law foundations (iii) other areas: it will be seen that the basic (substantive) pattern underlying denning's judgments in the law of contract is replicated in other areas of the law. constraints of space preclude an even cursory discussion and the reader is directed to the various learned articles on specific topics in this volume. however, it might be very briefly mentioned that denning's various seminal contributions79 have almost always been marked by his religious beliefs. for example, he viewed the law of negligence as embodying a moral element,80 and explicitly refers to christianity in the context of lord atkin's seminal "neighbour principle" enunciated in donoghue v. stevenson.81 more generally, his views on sexual morality (though criticised82) are entirely consistent with christian morality. however, denning has been often trenchantly criticised for his approach towards (in particular) trade unions in the sphere of labour law.83 even here, however, it could be argued (although this is not to state that he was invariably correct) that he was concerned to curb the abuse of power, thus preserving the rights of individual workers as well as the very structure of the nation itself. this is not, of course, to state that denning was always right. however, the other extreme should also be avoided, viz., the argument to the effect that denning was irretrievably (and, worse still, irrationally) biased against trade unions. indeed, it may be said that denning also brought a realistic and practical view to bear on the entire issue of submission to the authority of the state in a balanced fashion, for he was of the view that the state ultimately "derives its authority from god.,,84 equally well, denning saw his general 79 see e.g., nelson v. larholt [1948] 1 k.b. 339 at 342 (restitution) and candler v. crane, christmas & co. [1951] 2 k.b. 164 (liability for negligent misstatement: denning's dissenting judgment, as vindicated by the house of lords in hedley byrne & co. ltd. v. heller & partners ltd. [1964] a.c. 465). 80 see denning, supra n.2 at p.280. 8\ [1932] a.c. 562 at 580. he observes that "lord atkin took the christian precept as underlying the basis of his decision": see denning, supra n.20 at p.7. 82 see e.g., r.geary, "lord denning and morality" in robson & watchman, supra n.6, at pp.74-86. the oft-cited decision in this regard is ward v. braford corporation (1972) 70 l.g.r. 27 esp. at 35, per lord denning m.r. to be fair to denning, however, in the same case, phillimore l.j. echoed the same sentiments: see (1972) 70 l.g.r. 27 at 38. 83 see the excellent and fair-minded essay by p.davies & m.freedland, "labour law" in ch.8 of jowell & mcauslan, supra n.6. 84 see denning, "influence," supra n.19 at p.117 (and citing romans 13:1). 171 denning law journal emphasis on the importance of individual freedom as entirely consistent with his adoption of christian principles.85 but how is the balance86 between individual freedom and societal order to be achieved? the answer has in fact been referred to above: through christian principles. however, one may ask, why are christian principles appropriate unless they embody objective truth? my answer is that they do, and this is a proposition that we shall be returning to below.8? lord denning's attitude towards other religions what, then, about denning's attitude towards other religions and religious groups? his basic philosophy is that there ought to be freedom of religion.88 indeed, his openness towards other religions is displayed, for instance, in his exhortation that "christians and jews should come together in the search for truth.,,89 all this despite the clear difference between jewish and christian beliefs, which denning frankly and matterof-factlyacknowledges.9o indeed, in landmarks in the law, denning devotes a significant portion of his book to the jews.91 insofar as christianity is concerned, lord denning is firmly of the view that: "[w]e have reached the point ... that whilst the christian beliefs still form the foundation of our way of life, as i trust they always will, they are not to be enforced by law92 but by teaching and example.'.93 85 see denning, the changing law, supra n.8 at p.3. see also lord edmund-davies, supra n.7 at pa5. 86 see sir alfred denning, freedom under the law (stevens & sons limited, 1949) especially at ppa-6. 87 see the section below entitled "the relevance of christian apologetics." 88 and see generally denning, supra n.86 at pp.35 and 45-48 and, by the same author, supra n.32 at pp.116-117 as well as freedom of religion (william ainslie memorial lecture, delivered at st. martin-in-the-fields on 17th november, 1955; the cranboum press, 1955). 89 see lord denning, landmarks in the law (butterworths, 1984) at p.328. 90 ibid at p.314. 91 see ibid at pp.309-329. 92 the leading case that holds that christianity is not part of the law of england is the house of lords' decision in bowman v. secular society limited [1917] a.c. 406. 93 see denning, supra n.86 at p.47 and, by the same author, supra n.32 at pp.\ 17-118. however, there were, in denning's view, limits, particularly with respect to religious cults: see the road to justice supra n.32 at p.237. 172 natural law foundations iii. on christian influences and apologetics introduction given the very secular cast of societies in general and philosophy in particular, it is by no means unreasonable for the reader to ask why lord denning's natural law approach premised on christianity should be persuasive in the first instance. although constraints of space preclude an extended discussion, i shall attempt to set out (albeit in the briefest of fashions) some reasons as to why lord denning's stance is not in the least untenable. these reasons were never, explicitly at least, utilised by denning, although i am sure that he would not disapprove of them. a brief note first on influences, however, would not be amiss. the influence of william temple 94 denning does consistently refer to the work of the late archbishop of canterbury, william temple.95 indeed, denning once described temple as "one of the greatest thinkers of the present century. ,,96 to take but one instance, denning recounts how temple, in an address at the inns of court, commenced his message by saying, "i cannot say that i know much about the law, having been far more interested in justice.'.97 denning endorsed this view by criticising positivism and argued that people obeyed the law because they felt a "moral obligation" to do so.98 there is insufficient space and time to deal with william temple's philosophy. but it is important to at least state that his philosophy was 94 see generally, f.a. iremonger, william temple, archbishop of canterbury his life and letters (oxford university press, 1948); a.m.suggate, william temple and christian social ethics today (t. & t. clark, 1987); c.w.lowry, william temple-an archbishop for all seasons (university press of america, inc., 1982); and i.kent, william temple church, state and society in britain, 1880-1950 (cambridge university press, 1992). reference may also be made to the introductory essay on temple by canon a.e.baker in william temple, religious experience and other essays and addresses (james clarke & co. ltd., 1958) at pp.i-31 as well as to the "introduction" by r.preston to the re-issue (in 1976 by shepheard-walwyn) of temple's christianity and social order: see ibid. at pp.5-26. 95 see e.g., a.t.denning, "the traditions of the bar" (1955) 72 s.a.l.j. 43 at p.43 and, by the same author, supra n.32 at pp.l and 34. 96 see denning, "influence" supra n.19 at p.107. 97 see denning, supra n.32 at p. l 98 see generally ibid at pp.1-3. see also lord justice ,denning, "english law and the moral law" (1954) the listener 332. but cf the late professor h.l.a.hart who (paticularly in the "postscript" to the second edition of his classic work, 'the concept of law (2nd ed., clarendon press, 1994)) adopted a descriptive (as opposed to a prescriptive) approach in support of his positivist thesis: but cf (in tum) a.phang, '''the concept of law' revisited" [1995] tydskrifvir die suid-afrikaanse reg 403. 173 denning law journal very consistent with denning's: both were based on christian principles and it is no wonder, therefore, that denning constantly cited from temple's work and philosophy. indeed, i would add that temple's work and philosophy is very close (as i recently discovered) to the principles that i briefly allude to in the very next section: in particular, with respect to the pervasively real (yet seemingly intractable) problem of how one is to reconcile the universal with the particular.99 another significant point temple deals with (in my view at least) is the role of the holy spirit in the life of the individual.100 the relevance of christian apologetics in an age characterised by pluralism, christianity is by no means an attractive option. even the adoption of the classical natural law approach (perhaps best embodied within the work of aquinas,101 and which comes (it is suggested) closest to what lord denning would probably endorse) would necessarily entail a systematic defence of the christian faith (popularly encompassed within the perhaps semantically misleading rubric of "christian apologetics"), lest the embrace of christianity and its underlying values be thought to be mere assertions without any rational basis whatsoever. constraints of space again preclude an even cursory discussion but it is suggested that, as preliminary arguments, one would have to consider . h' f g d 102 h . i .arguments centring on t e existence 0 0, t e creatlon--evo utlon 99 see e.g., w.temple, mens creatix (macmillan and co. ltd.lst. martin's street, london, 1st ed., 1917; reprint, 1949) at pp.36, 318-320 and 364-366 and, by the same author, christus veritas (macmillan & co. ltd., 1924) at pp.ix and 243-244; nature, man and god (macmillan and co. ltd.lst. martin's street, london, 1st ed., 1934; reprint, 1953) at pp.184, 245,296-297,299-300,306-307,318 and 354-355; and christian faith and life (student christian movement press, 1931) at pp.24, 53 and 110. 100 see e.g., temple, mens creatix, ibid at pp.342-343 and, by the same author, christus veritas, ibid at p.155 and chxv; nature, man and god, ibid at p.446; and christian faith and life, ibid at ch.vi. 10] see e.g., r.j.henle, s.j., st. thomas aquinas the treatise on law (university of notre dame press, 1993) and e.gilson, the philosophy of st. thomas aquinas (translated by e.bullough, 1929, and edited by g.a.elrington dorset press reprint). cf a.j.lisska, aquinas's theory of natural law an analytic reconstruction (clarendon press, 1996). but cf w.temple, "thomism and modem needs" in w.temple, religious experience and other essays and addresses (james clarke & co. ltd., 1958) at pp.229-236. 102 these would include, inter alia, the cosmological argument as well as the argument from design. see generally e.g., j.p.moreland, scaling the secular city -a defense of christianity (baker book house, 1987) and 1.p.moreland & k.nielsen, does god exist?the debate between theists & atheists (prometheus books, 1993). for a particularly accessible (yet nuanced) account (which comes down on the side of the existence of god), see r.swinbume, is there a god? (oxford university press, 1996). 174 natural law found anons debate103 and (in a related vein) the issue of probabilities. 104it should also be mentioned that these various issues and arguments are themselves also linked across disciplines.l05 more directly, one would have to consider the claims of christianity itself. these would include the arguments of c.s. lewis with respect to the claims of jesus,106arguments with regard to the authenticity of the bible,107as well as the arguments demonstrating why jesus was in fact resurrected from the dead.108 it should also be mentioned that christianity enables the seemingly abstract and universal concept god to be objectively real, thus integrating the universal and the particular. this occurs in at least two related ways. first, as jesus christ claimed to have come from god the father, to be the son of god, indeed god himself, but in the form of man (in order to die for sinners and to be thereafter resurrected from the dead and to ascend to heaven), we find that, if this claim be established, there is the confluence (indeed, unity) of both the infinite and particular in one person. in addition, the universal and the particular meet inasmuch as the divinity of god (in jesus christ) is also testable both through logic as well as historical argument. on a practical level, it is suggested that the holy spirit is also part of the godhead of the trinity and provides the individualised guidance to each person transcending space and time: truth is thus imparted in an individualised fashion and we are no longer left with the frustration that stems from the absence of linkage between the universal and the particular which gives rise (in tum) to an inability to test an abstract belief and a contrasting resignation to (and even feeling of despair in) individual 103 see e.g., phillip e.johnson, danvin on trial (2nd ed., intervarsity press, 1993). 104 see generally the works cited at supra n.102. 105 see e.g., phillip e.johnson, reason in the balance the case against naturalism in science, law & education (intervarsity press, 1995) and c.s.lewis, miracles (fount/harpercollins, 1947; reissue, 1974). 106 see c.s.lewis, mere christianity (macmillan publishing company, rev.ed., 1952; 1st f<~erback ed., 1960) at pp.55-56. o see e.g., f.f.bruce, the new testament documents: are they reliable? (intervarsity press, 5th rev. ed., 1960). 108 see e.g., j.mcdowell, evidence that demands a verdict, vols.i & ii (here's life publishers, 1972 & 1979); j.w.montgomery, history and christianity (reprint: intervarsity press, 1971); sir n .anderson, jesus christ: the witness of history (intervarsity press, 1985); s.greenleaf, the testimony of the evangelists: the gospels examined by the rules of evidence administered in courts of justice (reprint: kregel classics, 1995); frank morison, who moved the stone? (faber & faber, 1958); r.clifford, leading lawyers' case for the resurrection (canadian institute for law, theology & public policy, 1st canadian ed., 1996); and n.l.geisler, the battlefor the resurrection (thomas nelson publishers, 1989). it is of no mean significance that the vast majority of the authors cited in the present note are lawyers. 175 denning law journal relativity. indeed, in jesus himself, as we have already seen, the universal and the particular are also united. much more remains to be unpacked, but i hope to have made out an at least prima facie case for consideration of the christian natural law alternative. more importantly, i hope to have demonstrated that denning's christian natural law approach is by no means without any basis and that the charge of personal preference omits, amongst other things, to take into account the individualised guidance of the holy spirit that i am sure must have been an integral part of denning's thought and work. iv. conclusion the traditional (or at least popular) view of lord denning is that of a maverick: of a judge who believes passionately in justice, but who so often gets around the law in order to achieve what he perceives to be justice in the case in hand. put this way, the entire enterprise becomes a contradiction in terms: for the law should not be undermined if justice, the very object of the law itself, is to be achieved. but this argument presupposes that the law never goes wrong and, in the context of the common law and its methodology, this is a dangerous assumption to make: if nothing else, then because human beings are not infallible. how, then, is the judge to know when (and when not to) depart from law that has somehow gone 'wrong,?109 this, in fact, entails the adoption of a natural law approach, which is to be contrasted with positivism which does not contemplate any necessary connection between law and morality. however, the options available to positivism, insofar as the legitimacy of the law is concerned, are not particularly attractive: mere circularity or infinite regress and it is, with respect, no answer to say that pragmatism demands that we have to arrive at a particular decision in any event. any recourse to a pragmatic argument brings us dangerously close to (if not within the very depths of) personal preference. this is what led (in the main) to the demise of american realism and is very much the cause of the woes facing critical legal studies. neither is liberalism's recourse to frameworks of ground rules, persuasive. ito this is simply the 109 and see e.g., r.m.dworkin, "law, philosophy and interpretation" (1994) archiv fur rechts-und sozialphilosophie 463 esp.at pp.474-475 and, by the same author, "objectivity and truth: you'd better believe it" (1996) 25 philosophy & public affairs 87. 110 the paradigm model, arguably at least, is to be found in the work of professor john rawls: see a theory of justice (harvard university press, 1971) and political liberalism (columbia university press, 1993). 176 natural law founda nons distinction between procedure and substance, and it is, with respect, woefully inadequate since the law is all of a piece. i ii however, can the natural law argument be justified? is it not subject to the same critiques canvassed in the preceding paragraph? it is submitted that it is not, provided it is premised on christianity. such a type of natural law is testable (both logically as well as historically) and has a functionality that lies, in the main, in the concept of the trinity. the arguments are certainly at least as plausible as any on offer. and this is the approach that lord denning adopts. what appears like an arbitrary hunch is (in substance) a recourse not only to the value system underlying christianity but also a receipt of supernatural guidance by the holy spirit. but this is not to state that such an approach guarantees even close to perfect results. if nothing else, it is also dependent on one very crucial element that god does not control, and chooses not to, our freewill: our decision to submit the problems and questions to him for a co-operative solution and not wanting to take the law, as it were, into our ownhands. lord denning's greatest contribution, in my view, was not merely "the law" which he left behind but, rather, the spirit of justice that was guided by a supernatural force. denning never wavered from the conviction that this was always so. more importantly, he persevered, right till his retirement: and has left a legacy of immeasurable proportions not only in the materials of the law itself but (more importantly) in the minds and hearts of not only those who are legally trained but also all those who are genuinely and passionately interested in justice. he brought a particularity and reality to the abstract concept of justice that tangibly demonstrated what it was all about. in his reply to the various valedictory speeches made upon his retirement as master of the rolls, denning ended thus: "i wish i could say, as a great man did once, 'i fought a good fight; i finished the course; i have kept the faith.",112 he can, and ought to, say it. 111 and see, in the context of the law of contract, the incisive essay by professor atiyah, "contract and fair exchange" (1985) 35 university of toronto l.j. 1 (reprinted as essay 11 in p.s.atiyah, essays on contract (clarendon press, 1986)). 112 see "valedictory speeches upon the impending retirement of the master of the rolls" [1986] denning l.j. 7 at p.15. the passage of scripture he cites from is 2 timothy 4:7. 177 http://www.ingentaconnect.com/content/external-references?article=0269-1922(1986)0l.7[aid=7390999] http://www.ingentaconnect.com/content/external-references?article=0269-1922(1986)0l.7[aid=7390999] legal protection of same-sex relationships in australia * the hon. justice **michael kirbya.c cmg. hon. ll.d. law turned on its head in matters of personal morality, lord denning reflected the times in which he grew up. 1 he was a child of the post-victorian era. he took seriously the moral instruction of the anglican church within the christian religion. although enlightened on many topics affecting society and generally a reformer when it came to law,2 lord denning was not very enlightened on the issues affecting human sexuality. he cannot be blamed for this. he was a product of his era, his church, his education and his profession. in more recent times, the law, and even the churches3 and other religious institutions have begun to re-examine the previous assumptions concerning • based on a lecture given to the school of law, university of buckingham, 3rd march, 2000 in association with the conferral upon the author of the honorary degree of doctor of laws. some parts of this essay were previously published in (1999) 19 australian bar review 4. •• justice of the high court of australia. one-time president of the international commission of jurists and laureate of the unesco prize for human rights education. 1 for a reflection on lord denning's views on moral questions, see a.phang, "the natural law foundations of lord denning's thought at work" [1999] denning law journa/ 159. for an earlier commentary on his application of christian principles of morality to legal decisions, see m.d.kirby, "lord denning: an antipodean appreciation" [1986] denning law journal 103 at p.1io commenting on ward v. bradford corporation (1972) 70 l.g.r. 27. 2 for essays on lord denning's contribution to reform of the law of obligations, of public law, offamily law and of other legal disciplines see the essays collected in [1999] denning law journal 1-186. 3 for an enlightened view from a christian viewpoint see a.a.brash, "address to ecumenical centre, geneva, switzerland, 1994 the churches and their gay and lesbian members" in a.a.brash, footsteps in the sand, (caxton, n.z., 1999) at p.73. 173 the denning law journal homosexual orientation and the sexual acts to which such orientation nonnally gives rise. in international courts and tribunals,4 in the courts of the united states,s england6 and canada,7 decisions have been delivered which begin to redress the discrimination previously evident in the law. because it was the criminalisation of homosexual conduct by the laws of england that was copied in the criminal laws of the british empire (even in places where the law had previously made no distinctions on the basis of sexuality) it was appropriate that leadership torwards refonn should eventually have come from the united kingdom. the wolfenden report8 and the legislative refonn that followed9 became models which influenced the repeal of the statutory provisions which rendered it a crime for individuals to engage in homosexual conduct. commonly, such provisions rendered such conduct a crime in the case of males, even where the conduct occurred in private and involved only adults. consent was no defence. the wolfenden refonns in england, and the like refonns which were adopted elsewhere, stimulated reflections upon existing discriminations in the law 4 see e.g. dudgeon v. united kingdom (1981) 4 e.h.r.r. 149; norris v. republic of ireland (1988) 13 e.h.rr 186; modinos v. cyprus (1993) 16e.h.rr 485; lustig-prean and beckett v. united kingdom (2000) 29 e.h.rr 493. s there are many contemporary decisions of courts in the united states. the california court of appeal in people v. garcia 2000 daily appellate report 1235 (4th dist) held·that a peremptory challenge to two homosexual jurors violated the accused's constitutional rights. the vermont supreme court has held that couples in same-sex relationships must receive the same common civil benefits as flow from marriage under vermont law. see baker v. state of vermont 744 a 2d 864 (1999). 6 fitzpatrick v. sterling housing association ltd. [1998] ch. 304; [1999] 3 w.l.r 1113; [1999] 4 all e.r. 705 cited in the grain pool of wa. v. the commonwealth [2000] h.ca 14 at 127. cf re wakim; ex parte mcnally (1999) 73 al.j.r. 839 at 850 where mchugh j. suggested that the "marriage" power afforded to the federal parliament under s 51(xxi) of the australian constitution would arguably today or in the near future mean a voluntary union between two people and thus extend to empower federal legislation on same-sex marriages. 7 egan v. canada [1995] 2 s.c.r. 513; m v. h [1999] s.c.r 23. see generally rwintemute, "discrimination against same-sex couples: sections 15(1) and 1 of the charter, egan v. canada" (1995) 74 canadian bar review 682; r.wintemute, "sexual orientation discrimination as sex discrimination: same-sex couples and the charter in mossett, egan and layland' (1994) 39 mcgill law journal 427. 8 homosexual offences and prostitution, cmnd. 247, (h.m.s.o., 1957). 9 in england, the sexual offences act 1967 (u.k.). 174 same-sex rela tronships affecting fellow citizens who happened to be homosexual. once the unquestioning adherence to the moral precepts reflected in the previous law came under question, the range and extent of the discrimination that existed came to be realised. once this happened, the need to remove discriminatory provisions in the law, which could not be justified by sound reasons, came to be accepted by legislators, administrators and courts alike. this process of acceptance and law reform is ongoing. in my lifetime, i have watched these changes. i have done so with more than academic interest. for me, they were not simply an extension of the earlier struggle for the removal of discrimination against women and against people whose skin colour was different from my own. this was a discrimination that affected me personally. from earliest youth, if one were homosexual (as i was) one was expected to be thoroughly ashamed of that fact and to observe a code of total secrecy about it. many citizens, and not a few lawyers, still do so. but thanks to a growing moral enligh~enment, an appreciation of the injustice of stigmatising people for an element of their nature that they do not choose and cannot change, increasing numbers of people (including some lawyers) are now addressing the injustice and discrimination that remains in the law on this ground. they are doing so with impatience and a desire to contribute to law reform. this is a feature of the age we now live in, at least in those western societies which have felt the impact of scientific research about human sexualitylo and the influence oflegal developments that draw upon the international jurisprudence of human rights.ll such changes, it may be expected, will come in time to affect all societies in the world as ignorance, mythology, prejudice and religious bigotry are replaced by knowledge, human rights and social and individual enlightenment. in short, the law is being turned on its head. no longer the oppressor of homosexual citizens, law is now is being invoked to protect their rights and to secure their true equality. changes are happening in many countries. the 10 for changes in the approaches of psychiatry and psychology to homosexuality, and the deletion of homosexuality from national and international manuals of psychiatric disorders, see m.king and a.bartlett, "british psychiatry and homosexuality" (1999) 175 british journal of psychiatry 106 and m.d.kirby, "remaining sceptical: lessons from psychiatry's mistreatment of homosexual patients" (2000) 44 quadrant 48.' 11 toonen v. australia (1994) 1:3 int. human rights reports 97. see also croome v. tasmania (1997) 191 c.l.r.1l9. 175 the denning law journal purpose of this note is to outline some of the changes that have recently occurred in australia. changes in state legislation it is beyond the scope of this paper to review all of the legislation in each of tlle eight sub-national australian jurisdictions that touch all of the legal rights of persons in same-sex relationships. i will therefore concentrate on the state of new south wales, which is the most populous state in australia. as in most australian jurisdictions which inherit statutes going back to colonial times, a large number of enactments of the new south wales parliament (and some of them not so old) reflect prejudice and discrimination against homosexual citizens. this has been repeatedly called to notice by the state's antidiscrimination board.12 the examples of discriminatory laws are many. they are found in every comer of the law even unexpected comers. thus, the stamp duties act 1920 (n. s.w.) provides that, if a share of a jointly owned property is sold by one party in a heterosexual relationship following the end of that relationship and if so ordered by a court, the remaining partner may be exempted from paying stamp duty. there is no such entitlement to exemption for a same-sex partner. similarly, the superannuation act 1916 (n.s.w.) contains a definition of "spouse" in relation to a death benefit which has the consequence that, where a contributor to a superannuation scheme or pensioner who dies without leaving a legally recognised "spouse" (or, in some cases, children) that person will receive only a refund of contributions without interest. this involves less favourable treatment for partners of the same sex and some others who are less likely to have a lawful "spouse" or child. the adoption of children act 1965 (n.s.w.) provides that a court may make an adoption order in favour of a married couple or, in certain circumstances, of a man and a women in a de facto relationship. such an order cannot be made in favour of persons in a same-sex relationship, whatever its duration and whatever the exceptional circumstances of the case. i know of several cases where couples in same-sex relationships have successfully reared children of one of the partners in a previous marriage. adoption is impossible. in each case the ]2 new south wales anti-discrimination board, newsletter, equal time, (february, 1999). 176 same-sex rela tranships children love their "parents" and have grown up robustly heterosexual; but tolerant. the evidence act 1995 (n.s.w.) contains legal privileges in respect of opposite-sex couples which are not extended to same-sex partners. 13 the new south wales anti-discrimination board has submitted to the state parliament and government that the legislation of the state needs to be changed to afford wider recognition to relationships involving same-sex partners and persons in non-traditional and/or extended family relationships. because growing numbers of persons in a variety of human relationships fall outside the protection of the present law, reform of the law is needed. but reform is sometimes slow in coming. the new south wales equal opportunity tribunal established by the antidiscrimination act 1977 (n. s.w.) is empowered to hear complaints in certain circumstances where a person claims to have suffered discrimination on the ground of homosexuality. such complaints are now regularly taken to the tribunal. in 1995 the tribunal found that a health fund which had refused to allow the complainants a "family" or "concessional" rate was guilty of unlawful discrimination. the complainants were two males bringing up the son of one of them. they had joint bank accounts, joint ownership of a motor vehicle and a joint mortgage. although the couple did not fit within the "spouse" relationship under the rules of the fund, they did come within the "family" relationships as defined. they were entitled to the concessional rate. an appeal by the fund to the supreme court of the state failed. 14 as a background to what now follows, it is appropriate to say that such studies as have been conducted in australia to sample the opinion of same-sex partners seems to indicate that the majority surveyed (80 per cent) do not consider that marriage or marriage equivalence is necessary in their cases.is many homosexual people regard marriage as such to be irrelevant to their relationship and look on it as a heterosexual legal construct with defects which they do not necessarily wish to copy. however, they want the discrimination removed and equivalent provision of legal protections against discrimination in respect of 13 evidence act 1995 (n.s.w.) s.18; evidence act 1995 (cth.) s.18. 14 nib funds limited v. hope 15th november, 1996, supreme court (n.s.w.), unreported. c( fitzpatrick v. sterling housing association supra n.6. i s.sarantakos, "legal recognition of same-sex relationships" (1998) 23 alternative law journal 222; s.sarantakos, "same-sex marriage: which way to go?" (1994) 24 alternative law journal 79. 177 http://www.ingentaconnect.com/content/external-references?article=1037-969x(1998)23l.222[aid=7391780] http://www.ingentaconnect.com/content/external-references?article=1037-969x(1998)23l.222[aid=7391780] http://www.ingentaconnect.com/content/external-references?article=1037-969x(1998)23l.222[aid=7391780] http://www.ingentaconnect.com/content/external-references?article=1037-969x(1998)23l.222[aid=7391780] the denning law journal civil rights and benefits that attach in law to the relationship of marriage. at least in the state of new south wales the legislators are at last responding to this latter demand. in 1998 the same-sex relationships (compassionate circumstances) bill 1998 (n.s.w.) was introduced into the new south wales parliament to meet what were described as "urgent areas of need which relate to wills, family provision and hospital access" for same-sex partners.]6 the purpose of the bill, a private member's measure, was to pick up on a commitment given by the state premier to the president of the a.i.d.s. council of new south wales prior to the election in which his party was elected to government in 1995. that commitment was: "labor is committed to reform of legislation around same-sex relationships so that same-sex partners have the same rights and responsibilities as heterosexual de factos when their partner is hospitalised or incapacitated. we will also ensure that same-sex partners are not discriminated against in the operation of will and probate and family provisions."]? the 1998 measure was not enacted. the government cancelled the allocation of time to private members for the remainder of the parliamentary session. several other private member's bills on related topics also lapsed when the new south wales parliament was dissolved for a state election held in march, 1999. the new state parliament which convened after the re-election of the· government moved quickly to enact the property (relationships) legislation amendment act 1999 (n.s.w.). the bill for that act was introduced into the legislative council by the state attorney-general (mr. j.w.shaw q.c.). it was passed by that chamber by 37 votes to 3. in the legislative assembly, it was passed without division. the debates were notable for the enlightened views expressed by members of both houses and both sides of politics. mr. shaw 16 c.moore m.p., media release, (n.s.w), 20th october, 1998. 17 letter by the hon. rcarr m.p. to the president, a.i.d.s. council ofn.s.w., 22nd february, 1995. see statement by ms. clover moore m.p. to the legislative assembly of new south wales in new south wales parliamentary debates (legislative assembly) 22nd october, 1998 at 59. 178 same-sex relationships described the legislation as "historic," which for australia it certainly is. he went on: "in an open and liberal society, there is no excuse for discrimination against individuals in our community based on their sexual preference. to deny couples in intimate and ongoing relationships within the gay and lesbian community the same rights as heterosexual de facto couples is clearly anomalous.,,18 a speech by a national party member of the lower house, representing a country electorate and a party sometimes described as conservative (mr. russell turner m.p.) was specially striking: "generally, they [people in same-sex relationships] have faced life, they have been through agonies and they, in a lot of instances, are probably far better adjusted than many married couples who are living in a state of acceptance by the community, the church, and the laws of this country.,,19 the legislation broadly assimilates same-sex partners within the de facto relationships act 1984 (n.s.w.) which is renamed the property relationships act itself a sign of how common de facto relations of all kinds are in australia today. the thrust of the new south wales act is to allow for court orders adjusting property relations on the termination of a domestic relationship·outside marriage. the rights affected include real and personal property rights, such as rights to succession of intestacy, taxes in relation to property transfers between partners, insurance contracts, protected estates, family provision (following inadequate testamentary provision) and a limited provision affecting state judges' pensions. non-property rights are also conferred in relation to human lb. see new south wales parliamentary debates (legislative council) 13th may, 1999, at 228; 261h may, 1999, at 36. 19 see new south wales parliamentary debates (legislative assembly), 151 june, 1999, at 740-741. subsequently the state leader of the national party was reported as predicting that there would be "no more watering down our opposition to indulgent and selfish gay rights laws" sydney morning herald, 19th june, 1999, at p.ll. 179 the denning law journal tissue and medical treatment decisions, participation in coronial inquests, decisions about bail for arrested persons, guardianship and mental health decisions, rights in retirement villages and accident compensation. a multitude of new south wales statutes are amended by the 1999 act to impose on same-sex couples the same obligations to disclose interests as would exist in the case of spouses. areas acknowledged as still requiring attention include adoption, foster parenting and superannuation for state government employees. the new south wales legislative council's standing committee on social issues (chaired by the hon. jan burnswoods) has a reference from the new south wales parliament on relationships law reform generally. the committee has called for submissions on the ways in which the property relationships act as it now stands does not adequately address legal concerns necessary to remove residual legal discrimination against same-sex domestic partners under state law. one matter on the list for future)egislation may be the age of consent laws which, as in england, discriminate in between males (18 years) and females (16 years). legislation on this topic has been promised. a private member's bill on the subject struck in the upper house of the parliament of new south wales some of the same opposition, for much the same reasons, as recently faced similar legislative proposals in the house of lords. most other australian state and territory governments have not yet indicated an intention to follow the lead of the new south wales government and parliament. however, legislative reforms similar to the property relationships act have recently been enacted by the queensland parliament.20 a new government in victoria has committed itself to examining the change. this model has been rejected in new zealand as not going far enough.21 on a national level, the importance of the foregoing developments should not be exaggerated. yet they are still significant and symbolic. in a federation such as australia, reforms enacted in one jurisdiction tend, in time, to influence developments in others. once it was south australia that led the way in such matters (including decriminalisation of homosexual acts and the enactment of anti-discrimination legislation). this time it has been new south wales and later queensland. 20 property law amendment act 1999 (qld.). 21 dugdale, "same-sex relationships" (february, 2000) new zealand law journal 3. 180 same-sex rela tionshtps even before the foregoing general reforms were adopted legislation was enacted by the new south wales parliament which provided an interesting model to afford protection to people in same-sex relationships. thus, the workers' compensation legislation amendment (dust diseases and other matters) act 1998 (n.s.w.) contained, in schedule 6, a number of amendments to the workers' compensation (dust diseases) act 1942 (n.s.w.). amongst those changes was an amendment to section 3 of the act. it inserted a new definition of "de facto relationship" in section 3(1) of the principal act. the redefmition is broad enough to encompass same-sex relationships: "de facto relationship means the relationship between two unrelated adult persons: (a) who have a mutual commitment to a shared life, and (b) whose relationship is genuine and continuing, and (c) who live together, and who are not married to one another." further amendments, which were enacted by the new south wales parliament, add a new subsection to section 3 of the principal act: "por the purposes of determining whether two persons are in a de facto relationship for the purposes of this act, all the circumstances of the relationship are to be taken into account, including (but without being limited to) matters prescribed by the regulations for the purposes of this subsection." this is another legislative provision which allows for definitional flexibility as social considerations develop and change. much work remains to be done. but significant reforms have been accepted in australia's most populous state. a model has been provided for the rest. changes in federal legislation the australian constitution, approaching its centenary, is one of the four oldest documents of its kind still in operation in the world. when adopted it did not 181 the denning law journal contain a general bill of rights such as became common in the independence constitutions of other countries of the commonwealth of nations. there is therefore no precise equivalent to the bill of rights in the united states constitution or the charter later adopted to supplement the british north america act (now renamed the canadian constitution) to stimulate and facilitate challenges to discriminatory provisions in federal law. generally speaking, in such matters australians must rely on the federal parliament and government to secure changes. only rarely can the aid of the courts be involved. under the australian constitution, one matter upon which the federal parliament enjoys legislative power is "immigration and emigration. ,,22 since 1984, in part because of lobbying by the gay and lesbian immigration task force (g.l.i.t.f.), changes have been introduced into australian migration law and practice which have expanded the rights of entry into australia of persons in same-sex relationships. the main breakthrough occurred in 1985. upon the instructions of the then minister (the hon. chris hurford), regulations and practices were adopted which removed much discrimination and provided for the consideration of applications for migration to australia largely (but not entirely) on an equal footing so far as same-sex partners are concerned. entry into australia of non-residents is regulated by the migration act 1958 (cth.) and the regulations made under that act. the regulations now provide for visa subclasses to permit the entry of people in "inter-dependent" relationships. this is the adjectival phrase which has been adopted to describe same-sex partners. the relevant australian visa classes are 310 and 301. they permit migration to australia of a person sponsored by his or her partner. comparable visas to allow change of status of persons already within australia are visa classes 826 and 814.23 the two categories mirror, in tum, those applying to persons seeking entry to australia on the basis of a de facto heterosexual relationship. 22 australian constitution, s.51(xxvii). the federal parliament enjoys legislative powers with respect to naturalisation and aliens (s.51(xix)) and external affairs (s.51(xxix)). 23 d.bitel, "recognition of same-sex relationships in australian immigration law" unpublished paper to the international bar association conference, vancouver, september, 1998 at p.3. see esp. migration regulations, reg.l.09a ("interdependent relationships"). 182 same-sex relationships the annual migration programme for australia contains an allocated number of places available to persons in the "inter-dependent" categories. by comparison to the total size of australia's migration programme, the numbers are very small. for the financial year 1996-97, 400 places were reserved for "interdependency visas." nevertheless the category now exists in australian law. i know fine new citizens of australia, some in the legal profession, who have taken advantage of it. discrimination remains in australian migration law and practice. thus, in "interdependency relationships" involving homosexual de facto partners, the partners must be able to prove a twelve months committed relationship before being eligible to proceed with the application. in the case of heterosexual relationships, this precondition can be overcome, quite simply and quickly, by marriage, an event substantially within the control of the persons themselves. a similar short-cut is not available to same-sex couples. in some countries which still criminalise, prosecute or stigmatise persons who establish a same-sex household, proof of twelve months cohabitation, especially with a foreigner, may be difficult or even impossible. provision is made for waiver of this requirement in compelling circumstances. notwithstanding the continuing defects of current law, it is clear that australian migration regulations are comparatively enlightened on this subject. as yet, only a handful of countries (the netherlands, the scandinavian nations, australia, new zealand and canada) recognise same-sex relationships in any way for immigration purposes. not until october, 1997 did the united kingdom do so. then the minister announced a "concession" whereby, at least in some cases, unmarried relationships would be recognised for purposes of immigration to the united kingdom, including same-sex partners, a category formerly . d 24rejecte . in the field of refugee law, australia is a party to the refugees convention which is incorporated into australian domestic law?5 one of the categories entitled to refugee status is that of a person one who "owing to a well-founded fear of being persecuted for reasons of ... membership of a particular social 24 r.wintemute, sexual orientation and human rights, (clarendon press, oxford, 1995) at pp.103-105; w.gryk, "the recognition of unmarried relationships under british immigration law an evolving process?" unpublished paper to the international bar association conference, vancouver, 16th september, 1998, at p.2. 25 migration act 1958 (cth.), s.4(i). 183 the denning law journal group ... is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself ofthe protection of that country." the possibility that in some countries homosexuals and others in same-sex relationships would be so categorised has been recognised in a number of decisions in australia and the united kingdom.26 in australia, for at least five years, both the department of immigration at the primary level and the refugee review tribunal, have accorded refugee status to both male and female homosexuals who could establish a well founded fear of persecution in their country of nationality. 27 various problems arise in such a case because of views sometimes taken in the tribunal concerning the need for applicants to prove their sexual orientation and because of a paucity of information about the persecution of homosexuals in some countries. australia has developed admirable policies for the group "women at risk." there may be a need for similar supportive ~rograrnmes for homosexual refugees and also for their same-sex partners. 8 many of them are at serious risk in their countries of origin or temporary residence. superannuation in australia is now largely regulated by federallaws.29 the senate select committee on superannuation of the australian parliament delivered a report relevant to this subject in september, ] 997.30 the committee put forward "as a general proposition" a proposal earlier made to it in the context of a review of superannuation, that persons without defined dependants (such as widow, widower or eligible children) should have an entitle~ent under federal law to nominate a beneficiary so that they did not lose entirely the benefit of entitlements which would otherwise accrue to them were they in a currently defined relationship. the committee recognised that the present 26 cf applicant a v. minister for immigration and multicultural affairs (1997) 190 c.l.r. 225 at 304 (fn 296). see also r v. immigration appeal tribunal, ex parte shah [1999] 2 w.l.r. 10 15 at 1044 per lord millett ["". [g]iven the hostility encountered by all homosexuals in such a society and the obvious problems the applicant would have in satisfying his tormenters of his own sexual abstinence, i doubt that the difficulty [of establishing that a fear of persecution was well founded] would be a real one."] 27 bitel, supra n.23 at pp. 4-5. 28 cj ibid at p.5. 29 attorney-general v brechtler (1999) 73 all.r. 981 at 993-996. 30 australian parliament, senate select committee on superannuation, the parliamentary contributory superannuation scheme and the judges' pensions scheme, 25th report, (canberra, september, 1997). 184 same-sex relationships provisions involved a "discrimination against those ... not in a recognised relationship.,,31 the committee held back from making a recommendation that provision should be made for the "nomination of a dependant" because of reconsideration of the current structure of the scheme established by the act. 32 however, as in the case of the parliamentary scheme applicable to federal politicians, the committee recommended33 that the, rules under which the benefits were paid "should be reviewed to ensure that they are in accordance with community standards." in 1998 a private member's bi1l34was introduced into the house of representatives by an opposition member designed to remove discrimination against same-sex couples in relation to superannuation. earlier, a larger measure was introduced into the australian senate,35 also by a non-government senator. the latter was referred to the senate legal and constitutional references committee. in december, 1997, that committee tabled a report recommending that couples or partners should be protected by superannuation entitlements regardless of their sexuality or gender. neither of the foregoing bills has yet attracted the support of the australian government. in march, 2000 a private member's bill identical to the one that had stalled in the house of representatives was introduced into the australian senate in the hope of advancing consideration of its proposals by the parliament. it remains under consideration at the time of ~iting. discrimination in the field of superannuation and like benefits has become more noticeable in australia as other federal legislation, and legislatively 31 ibid at para.4.6. 32 ibid at para.4.7. 33 recommendation 4.1. 34 superannuation (entitlements of same-sex couples) bill 1998 (cth.). the member introducing the bill (mr. aaibanese m.p.) gave the second reading speech for the bill on ih june, 1999. this means that the bill will not lapse. debate was adjourned until the government allows it to be brought forward for further debate and a vote. the speech followed a report of the australian human rights and equal opportunity commission, superannuation entitlements of same sex couples (june, 1999) was tabled in the federal parliament by the attorney-general. the commission found that present australian superannuation law was in breach of two international conventions to which australia is a party, the international covenant on civil and political rights and the i.l.o. discrimination (employment and occupation) convention. 35 sexuality discrimination bill 1995 (cth.). 185 the denning law journal encouraged moves, have come to recognise and protect the "employment packages" of persons governed by federal law. nowadays, it is much more common to consider a person's total employment "package" rather than simply their base salary. where there is a significant differentiation in superannuation and like employment benefits, unconnected with the quality of the employee's professional performance and concerned only with his or her private domestic arrangements, unjust discrimination can be seen in sharp relief. 36according to news reports, politicians of most political alignments in australia have begun to appreciate the serious injustice which is worked by current superannuation and like laws in the case of persons living in stable same-sex relationships.37 recently, an australian ambassador, presenting his credentials to the monarch of the country to which he was accredited by australia, took along his same-sex partner. such relationships are legally recognised in that country where the action of the ambassador would have been unremarkable. yet in australia the diplomat and his partner had to suffer the indignity of a tabloid headline reducing his serious professional career to the insult: "three queens in one palace. ,,38tabloid media is one of the less enchanting aspects of the british heritage that we have succeeded to in australia. it took more courage and honesty for the ambassador to do as he did than to continue with pretence. it took more courage and integrity than the anonymous by-line writer exhibited in the newspaper concerned. and it must be acknowledged that the australian department of foreign affairs has, in this respect, observed a nondiscriminatory policy. the certified agreement between the department and its officers under the workplace relations act 1996 (cth.) states: 36 see comment, d.mccarthy, "superannuated" brother-sister (melbourne), no. 182, (15th april, 1999) at p.7. 37 c.pearson, "saving not such a super idea for same-sex couples" australian financial review, (3rdmay, 1999) at p.19. ms. leane burke mp. for prahran in the victorian parliament proposed a motion which was adopted by the victorian state conference of the liberal party of australia. it urged the federal government to "ensure same-sex partners are given equality of treatment with respect to superannuation payments as those given to opposite sex de facto partners." see j.mckenzie, "super boost for equality campaign" brother-sister (melbourne), no. 182, (15th april, 1999) at p.3. 38 daily telegraph (syd.), 26th february, 1999 at p.7. 186 same-sex relationships "the conditions regarding the official recognition of de facto relationships for the purpose of the conditions of service applies regardless of sexual preferences." 39 similar statutory "certified agreements" have been adopted by other federal departments and agencies in australia. in practice, this means that for most benefits of office (but not yet superannuation) same-sex partnerships enjoy similar employment benefits in the federal service in australia. thus, in the australian foreign service, the partners of officers are entitled to airfares to and from their posting; the payment of supplementary living allowances as a couple whilst overseas; the payment of other incidental allowances on the same basis where an entitlement arises (e.g. clothing allowances) and the payment of health cover by the federal government for both partners during the posting. it is necessary to have the relationship recognised by the relevant department before the partners proceed to the posting. this is secured by the provision of a statutory declaration with accompanying evidence. but these and other benefits are then closely assimilated to those of any other non-married defacto partner. the achievement of such entitlements and practices evidences a commitment by those concerned in australia to the principle of non-discrimination in the matter of sexuality within federal public employment. the parliament of australia in respect of its own members, and in some areas of its own legislative responsibility, has begun to act.40 the executive government in australia has also moved, in respect of its officers, to abolish discrimination in employment benefits and to exercise its powers under delegated legislation in a non-discriminatory way. even the federal judicature in australia has begun to provide benefits of domestic and international travel for non-married partners of federal judges. but the judges' pensions act 1968 (eth.) remains resolutely unchanged. 39 australia, department of foreign affairs and trade, certified agreement, 1998-2000. 40 see australia, remuneration tribunal, determination no.2 of 1998, members of the parliament travelling allowance, at para.2.8 ["a senator or member may nominate to the special minister of state one nominee as eligible to receive travel privileges under this entitlement, and, subject to any procedural rules made by the special minister of state, may vary that nomination from time to time"]. 187 the denning law journal conclusion on the other side of the world, in the united kingdom, some of the subjects of this essay have been debated. the house of lords in parliament has twice proposed the removal of the discrimination that continues in the criminal law of england and wales in relation to the age of consent for sexual activity.41 the attempts in england42 and scotland43 to repeal the provisions of section 28 of the local government act 1988 (uk.) have run into opposition, much of it stemming from the churches. foreign judges, including this author, who took part in a serious international conference on this topic held in london in 1999 are lampooned for drawing to notice the movement of law reform that is underway in many countries to redress the injustices and remove the discrimination of past laws affecting people because of their sexual orientation. i have myself been the target of such commentary.44 people, including lawyers, who in earlier times advanced the ideas oflegal protection for the poor, for slaves, for destitute emigrants, for religious free-thinkers, for women, for the handicapped and for people of colour attracted, in their time, similar opprobrium. it must be borne with grace as the price of progress. the law will usually accommodate itself to scientific explanations of reality. community opinion also adapts, given time. sadly, the churches and other spiritualleaders45 are often amongst the last to change their mind and to face reality. but charles darwin's explanations of evolution are no longer denounced by most church leaders. save for a few peculiar jurisdictions,46 there 41 the consideration of the sexual offences (amendment) bill 1999 (u.k.) by the lords was twice postponed in 1999. 42 local government act 1988 (england & wales, separate legislation applies in scotland) s.28. a compromise was later struck with the church of england. see daily telegraph 2nd march, 2000 at p.6. 43 a campaign against reform was waged in scotland by cardinal thomas winning. see a.kemp and a.bell, "scots fight to stay in closet" the observer, 23rd january, 2000 at p.19. 44 m.steyn, "the rise of the fu movement" the spectator, 4th march, 2000 22 at p.24 where the auth.,r was described as "the peter tatchell of the international legal set." 45 see "chief rabbi turns fire on section 28" the times (london), 22nd january, 2000 at p i. 46 a recent opinion poll for the american way foundation found that over 83% of those polled favoured the teaching of evolution in u.s. schools. but according to the same poll most americans do not favour teaching only evolution or creation. see report, washington post, 12th march, 2000, at a12. 188 same-sex relationships are few attempts now by law to hide or deny scientific truth, although clearly inconsistent with a literal reading of the biblical story of the creation. so it has been in relation to interpretations of scripture which suggested that black skinned people were flawed,47 that owning slaves represented the natural order of things and that women were the mere handmaidens of men. so it will be in relation to the current teachings of some religions that homosexuality is disordered and that homosexual acts, natural to people of that sexual orientation, are "intrinsically evil. ,,48 once it became clear from scientific data that a small proportion of human beings in every society is homosexual, that they did not choose their sexual orientation and that (in the overwhelming majority of cases) they cannot change it, the attempt by the law to punish and stigmatise such people in their millions is revealed for what it is. it is intrinsically evil. it is as evil as the earlier laws, attitudes and beliefs which denigrated other human beings for indelible characteristics of their nature: their ethnicity, their skin colour and their gender. most judges and lawyers today understand these truths. yet they are often bound to administer laws which have not caught up with the modern enlightenment. gradually legislators are reforming those laws. it sometimes falls to practising lawyers and sitting judges to contribute to the process of reform. to the end of his life, lord denning would probably have rejected the central thesis of this essay. but had he been alive and of this generation, he would, i believe, have been in the forefront of the understanding of the need for reform. it is an understanding which now goes far beyond those who are themselves of homosexual orientation. everywhere the scales are dropping from our eyes. injustice and irrational prejudice cannot long survive the scrutiny of just men and women. silence is a formula that permits injustice and discrimination to remain. it is the light of truth that will expel error and demand reform. the common law as an instrument of justice now generally accepts this truth in the 47 the curse by noah on canaan was, according to some religious traditions, the origin of black skin and servitude, which for many in former times were synonymous. see genesis, 9:25. 48 the congregation for the doctrine of the faith of the roman catholic church in a notification of 31,\ may, 1999 reaffirmed the church's teaching regarding the "intrinsic evil ofhomose~ual acts," and ordered a priest and nun who had ministered to a homosexual congregation for twenty years to cease their ministry. see m.d.kirby, supra n.l o. 189 the denning law journal united kingdom, australia and like countries. judges and lawyers playa part in the process. there is much need of legislative reform. in australia, judicial and legislative changes have occurred. but much work remains to be done. 190 two kinds of justice: human and devine the denning law journal 239 the denning law journal 2008 vol 20 pp 239-246 case commentary guilty by association? r ex p raissi v secretary of state for the home department, court of appeal, (civil division) [2008] all er (d) 215 (feb) bolanle opadokun∗ the facts the case of lotfi raissi, an algerian pilot, who was denied compensation under the ex gratia scheme has been reported by many national newspapers. it is likely that we have not heard the last of it, as it is possible for the secretary of state to appeal against the decision of the court of appeal to the house of lords. the case1 concerned a judicial review appeal application by mr raissi. on september 21st 2001, he was arrested in his home following a letter dated september 17th 2001, from the united states embassy in london addressed to the metropolitan police asking them for information about him. the fbi believed that raissi may have been involved in the september 11th 2001 atrocities. there was also a further request, from the united states embassy to the united kingdom government on september 27th 2001, to arrest raissi for extradition purposes. it was alleged that he had given false information to the federal aviation administration (faa) when he wanted to renew his licence. mr raissi was born in algeria and is married to a french national. he was residing in the united kingdom at the time of his arrest. in 1997, he had qualified as a commercial pilot in the united states and at the time of his arrest was a student at an aviation school in the uk undergoing training in order to obtain a european pilot licence. the information in the letter sent from the embassy to the metropolitan police stated that raissi had attended the boeing 737 flight training at the aviation school in the spring of 2001. it also said that a named hijacker, mr hanjour, was also engaged in training at the aviation school at the same time as raissi. furthermore, it was alleged that both of them had spent considerable time on a flight simulator together. there was also a further suggestion that there was a link between a mr abu doha, ∗ llb (2008) university of buckingham; postgraduate student studying for the degree of llm in international and commercial law. 1 r. ex p raissi v secretary of state for the home department [2008] all er (d) 215 (feb). case commentary 240 who was to be extradited for terrorism offences by the united states’ government, and the appellant. the police allegedly found in doha’s address book, a telephone number which was said to be that of mr raissi. mr raissi was detained for approximately four and half months in custody pursuant to extradition proceedings which had been initiated by the united states of america. he was later granted bail because the crown prosecution service could not say whether, if at all, he would be charged with a terrorism offence. district judge workman, on april 24th 2002, before whom raissi appeared, discharged all “draft extradition charges” against him. he said that the evidence showed only that the faa ‘might have dealt’ with the application differently but there was insufficient evidence that the deception by raissi was material. the detention and subsequent proceedings had a devastating effect on raissi’s life, health and his reputation. he considered that to get his ‘life back together again’ there was a need for vindication and a public acknowledgement that he was not a terrorist. he therefore sought compensation through the ex gratia scheme. the ex gratia scheme was introduced in 1976 by douglas hurd2 as a discretionary monetary award payable to those who had been detained in custody following either a wrongful conviction or charge resulting from exceptional circumstances, including serious default by a member of a public authority, and /or the emergence of facts which completely exonerated the detained person. this scheme was introduced in response to the requirement set out in article 14.6 of the international covenant on civil and political rights.3 the home secretary on the matter said: “i remain prepared to pay compensation to people who do not fall within the terms of the preceding paragraph but who have spent a period in custody following a wrongful conviction or charge, where i am satisfied that it has resulted from serious default on the part of a member of a police force or of some other public authority. there may be exceptional circumstances that justify compensation in cases outside these categories. in particular, facts that may emerge at trial, or on appeal within time, that completely exonerate the accused person. i am prepared, in principle, to pay compensation to people who have spent a period in custody or have been imprisoned in cases such as this. i will not however, be prepared to pay compensation simply because at the trial or on appeal the prosecution was unable to 2 the then home secretary. 3 ga resolution 2200a (xxi) 1966. came into force on march 23 1976. the denning law journal 241 sustain the burden of proof beyond a reasonable doubt in relation to the specific charge that was brought.”4 decision of the court of first instance in the raissi application, counsel for the home secretary maintained that the scheme did not apply to him because the conduct of prosecutions in extradition cases is a matter in the hands of the foreign government requiring extradition. the home secretary stated further that united kingdom prosecuting authorities were merely acting as a solicitor. lord justice auld in deciding the matter agreed with the home secretary that the scheme was not construed under any statute and denied raissi’s right to claim under the scheme. he said that the scheme arose from the crown exercising its prerogative to compensate those who had been wronged under domestic law and did not extend to extradition proceedings. auld lj5 did not regard “the reasonable and literate person” formula as a helpful approach for determining on an objective basis what mr hurd had in mind when he originally formulated the ex gratia scheme. the primary concern of the court was to determine the intention of mr hurd and his successor as to the reach and the potential meaning of the scheme. auld lj was of the view that the circumstances of the detention of the applicant did not follow on from a wrongful conviction or charge within the meaning of the ex gratia scheme6 and in support of the home secretary, he did not consider that raissi’s case fell under the second limb of “exceptional circumstances.” neither did he perceive abuse of the process by the cps, nor of the court in conducting the proceedings on the extradition charges, nor in opposing bail in reliance on instruction about the terrorism allegation. finally, auld lj did not consider that mr raissi was completely exonerated given the outcome of the extradition proceedings which was brought by the united states. mr raissi responded and filed an appeal. 4 r. ex p raissi v secretary of state for the home department [2008] all er (d) 215 (feb) para 4. 5 [2007] all er (d) 278 (feb) para 38. 6 [2007] all er (d) 278 (feb) para 45. http://www.lexisnexis.com/uk/legal/search/runremotelink.do?service=citation&langcountry=gb&risb=21_t3715903241&a=0.4965537292914316&linkinfo=gb%23allerd%23year%252007%25page%25278%25vol%2502%25sel2%2502%25sel1%252007%25&bct=a http://www.lexisnexis.com/uk/legal/search/runremotelink.do?service=citation&langcountry=gb&risb=21_t3715903241&a=0.4965537292914316&linkinfo=gb%23allerd%23year%252007%25page%25278%25vol%2502%25sel2%2502%25sel1%252007%25&bct=a case commentary 242 decision of the court of appeal the issues before the court of appeal were: • whether, as a matter of interpretation, the ex gratia scheme was capable of applying to detention in the context of extradition proceedings. • whether there was evidence of serious default on the part of the police and/or the crown prosecution service. • whether, if the application failed under the serious default provision, the circumstances of the case were so exceptional that the secretary of state ought to reconsider the application under the second paragraph of the scheme. lord justice hooper gave judgement on behalf of the court of appeal on the february 14th 2008. the court of appeal began by considering how policy statements such as the ex gratia scheme should be interpreted. they took their stand from an earlier decision in webb7 in which lawton lj had said that the court should not construe the scheme as if it were a statute but as a “public announcement of what the government was willing to do.” this required the court to decide by employing the notion of a reasonable and literate man’s understanding of the circumstances, whether an applicant should be paid compensation for personal injury caused by a crime of violence or an abuse of process? this was the same test used by the lower court in their rejection of raissi’s application. theirs was based on their interpretation of the intention of the minister at the time rather than on how his words would or might have been interpreted at a later date. the appeal court judges used the webb text, although they accepted it could be worded and interpreted in a contemporary idiom to accommodate subsequent circumstances and cases. to assist them reach their conclusion they asked the following questions. what does the scheme mean? what is its purpose and scope? and who is the person concerned that the minister is intending to compensate? since the scheme was not a statutory scheme it was for the board, as a fact-finding body to apply a reasonable and literate man's understanding of the circumstances in which compensation could be paid. raissi’s contention was that the extradition charges which he faced were a device to allow for his detention in custody whilst the united states authorities investigated whether he was involved in the 9/11 atrocities. the 7 r v criminal injuries compensation board, ex p webb [1987] qb 74, at 78. the denning law journal 243 charges he claimed were trivial and, of themselves, would never have warranted extradition proceedings or even detention in custody. he claimed that the way in which the proceedings were advanced against him amounted to a serious default by the crown prosecution service (cps) and/or officers of the metropolitan police. further, the appellant contended that his four and half months detention on trivial extradition charges was a breach of article 5 of the european court on human rights (echr) and a device to circumnavigate the law of the uk, which otherwise would have not permitted a person being held without charge as a suspect for terrorism offences for more than 7 days (as the law then stood). as such, it was an abuse of the process of the court, which should entitle him to be compensated under the scheme. the court of appeal said that the divisional court had adopted the wrong approach in the sense that the purpose of the scheme should not be interpreted in a legalistic manner but interpreted purposively. the appeal court observed that in extradition proceedings the defendant faced the charges in a uk court and that the purpose was to determine whether he should lose his liberty, or not. if afterwards he was not extradited as a result of serious default of a member of a public authority, the court of appeal said, “ the wrong done to him would be indistinguishable from the wrong done to a defendant who was in custody due to a charge in a domestic criminal court.”8 in their view it would be difficult to exclude wrongful detention (resulting from the extradition process) from the scheme because the false information provided by the cps or a police officer would to a large extent result in a miscarriage of justice and unjustifiable loss of liberty and the purpose of the scheme should include this type of situation. on the second point of serious default, counsel for the home secretary submitted that there was no compelling evidence that the proceedings were brought for an ‘ulterior motive.’ the home secretary, went further, submitting that even if it was for an ulterior motive, it was not the fault of the british authorities since they were acting on behalf of the united states. the court of appeal concluded that the cps’s primary duty is to the court and this would include a duty to ensure that the requesting state complies with its duty of disclosure.9 the case of r. ex p united states v bow street magistrates court10 was relied on, where the judge said, “the appropriate course for the judge to take if he has reason to believe that an abuse of process may have occurred is to call upon the judicial authority that has issued the foreign arrest warrant or the state seeking extradition in a part 2 case, for whatever 8 para 125. 9 para 139. 10 [2006] ewhc 2256 (admin). case commentary 244 information or evidence the judge requires in order to determine whether an abuse of process has occurred or not.”11 the court of appeal also held that the fact that a judge cannot order the requesting state to make disclosure does not exonerate the cps from the “duty of candour and good faith” it owes to the court, particularly when the issue before the court is the lawfulness under article 5 of the echr of the detention of the person whose extradition is being sought. lastly on the “exceptional circumstances” point, counsel for the home secretary argued that the appellant’s case did not fall under exceptional circumstances because he had not been completely exonerated of all the charges. the court of appeal was of the opinion that it would be irrational for the home secretary to draw a distinction between charges brought in the context of extradition proceedings and one brought in the context of domestic proceedings, and that there is a need for the home secretary to consider a case of this kind where the substance of the charge against the appellant which resulted in his loss of liberty was that he was a terrorist, a charge of which he had been completely exonerated. they concluded that that there was a considerable body of evidence to suggest that the police and cps were responsible for serious default and as such the ex gratia scheme must apply requiring the home secretary to reconsider his decision in the light of the court’s ruling as to the scope of the scheme. discussion there are three points that emerge from this case. first, there is clearly an abuse of article 5 of the echr, which provides that everyone has a right to liberty and security. even in circumstances where the authorities are allowed to deprive someone of his or her liberty,12 he or she is entitled to be told of the charges levelled against him or her in the manner and language he or she will understand.13 mr raissi was held on extradition charges without knowing in detail what offences he was supposed to have committed. the cps assertion that they were only acting as the legal representative of the us authorities is unsatisfactory. what is the implication of what they were saying? does that mean us laws and actions supersede those of the uk? even the extradition act 2003 allows that the extradition warrant should have among other requirements the particulars of the circumstances in which the person is allegedly to have committed the offence, including the time, and place at 11 ibid, at para 89. 12 echr, art 5(1)(f). 13 echr, art 5(2). the denning law journal 245 which he was alleged to have committed the offence.14 are the uk authorities afraid of the us to the extent of sacrificing their citizens without proper evidence that the citizen has committed the offence? lord anderson of swansea during the house of lords debate15 on july 4th 2006 said this: “my lords, does it not shriek with injustice and is it not grossly unfair that british citizens can be extradited to the us by the expedited process under the treaty, when the uk government will have to provide prima facie evidence to the us? that is not, as my noble friend suggests, a rebalancing. should we not have ensured at the time of negotiation that there was reciprocity in the coming into operation of the obligations? would it not make sense and be just for us to give adequate notice to our us partners under the treaty that we intend to suspend its operation until such time as the us senate ratifies it and puts the same obligations on their citizens as we have imposed on ours?” the second point to consider is whether raissi was guilty by association. one cannot but ask what the actual offence of mr raissi was. was he guilty by associating with another student at the aviation school? the evidence shows that although raissi went to the same aviation school with the alleged bombers, their training was held at different times. even if they were in the same plane undertaking the same type of training at the same time, does that mean raissi is automatically a bomber? the only information linking raissi to mr abu was an address book with the supposed phone number of mr raissi. the evidence presented did not even establish the truth of this assertion. the court of appeal themselves noted that raissi’s remand in custody for a considerable period in those circumstances was likely to be a breach of article 5. they found it difficult to understand how detention for several weeks could be lawful on charges, of which the court would not have denied him release on bail. but they failed to reach a firm conclusion on this point because the cps or police were not represented before the court. maybe had their lordships reached a firm conclusion, they could have also supported their judgement with the judicial remedy provided for in article 5(5) of the ‘echr’ “everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.” 14 extradition act 2003, s 4(c). 15 www.parliament.uk case commentary 246 finally, peradventure a further appeal to the house of lords comes down in favour of the home secretary that extradition charges did not fall within the scope of ex gratia scheme. what then will happen to people like mr raissi who are wrongly accused by the cps? what genuine justification did the cps have for the loss of liberty experienced by the appellant? looking at it critically both the uk and us governments were negligent in their investigation procedure in that most of the information they provided was false and the uk government did not take reasonable steps to ascertain that the allegations were true prior to making the arrest. the court of appeal observed that the letter from the united states to the metropolitan police was for the purpose of requiring the police to make discrete enquiries about raissi but without arresting him. also, that the extradition charges against raissi were a means of taking him to the united states to question him about the 9/11 atrocity and not for the original non disclosure offence. two kinds of justice: human and devine the denning law journal 197 denning law journal 2008 vol 20 pp 197-210 case commentary three parents? jacob v shultz-jacob, 923 a 2d 473, 2007 pa super lexis 957 (pa super 2007) robert e rains* united states supreme court justice antonin scalia once famously opined that, “. . . law, like nature itself, makes no provision for dual fatherhood.”1 of course, we know that many children today are being raised in households where their primary paternal figure is a stepfather, and their natural father, who is their legal father, may or may not exercise some quantum of visitation/access.2 moreover, many american jurisdictions today allow same-sex couples to adopt, so that a child has either two mothers or two fathers.3 but the situation which justice scalia was addressing involved a child whose mother was married at the time of conception, who apparently was the product of her mother’s affair with another man, and where the mother’s husband had forgiven all and accepted the child as his own.4 justice scalia could not imagine that the law, or nature, would permit a child to have three parents, in that case a mother and two fathers. indeed, in the typical same-sex adoption case, either there is no known father because one of the lesbian partners was inseminated by an anonymous donor,5 or a known donor has agreed to terminate his parental rights.6 in either of those scenarios, a child ends up with the normal number of parents: two. * visiting professor, buckingham university law school, and professor of law and co-director of the family law clinic, the pennsylvania state university dickinson school of law, carlisle, pennsylvania, usa. the author gratefully acknowledges the assistance of john r fenstermacher, esq, mechanicsburg, pa, and timothy m ayres, esq, johnston, pa, in providing certain background documents and information, as well as prof vanessa gruben, university of ottawa, for providing information on canadian law. 1 michael h v gerald d, 109 s ct 2333, 2339 (1989). 2 see, e g, charles v stehlik, 744 a 2d 1255 (pa 2000). 3 see adoption of b l vb and e l vb, 628 a 2d 1271 (vt 1993). but see adoption of luke, 640 n w 2d 374 (neb 2002); lofton v sec of dept of children and family services, 358 f2d 804 (11th cir 2004). 4 michael h, above n 1 at 2337-8. 5 see, e g, b l vb, above n 3. 6 see, e g, adoption of tammy 619 n e 2d 315 (mass 1993). case commentary 198 the recent case of jacob v shultz-jacob appears to break the mold and at least suggest, if not definitively hold, that children in pennsylvania can have three legal parents, that is three people who share custodial rights and support duties.7 jacob also appears to be the first appellate authority anywhere in the united states for such a proposition. the underlying facts in jacob are relatively straightforward. two women, jodilynn jacob and jennifer shultz-jacob, began living together in an intimate relationship in 1996. they underwent a “commitment ceremony” in pittsburgh, pennsylvania, and entered into a “civil union” in vermont.8 a vermont “civil union” is akin to a british “civil partnership” under the cpa 2004; i.e., for same-sex couples it is a marriage in all but name.9 however, pennsylvania does not recognize a same-sex marriage even if legally entered into elsewhere, and it is therefore highly doubtful that a pennsylvania court would give legal effect to a vermont civil union.10 the subject children were conceived by jodilynn through artificial insemination from a known sperm donor, carl frampton.11 it is clear that jennifer never adopted the children. however, they were raised in jodilynn and jennifer's household from their births (june 20, 1998, and april 6, 2000)12 until february 2006 when, the intimate relationship having ended, jodilynn left with the children.13 both custody and support litigation ensued, involving jodilynn, jennifer and carl. litigation at the trial court level in the custody litigation, the trial court awarded jodilynn and jennifer shared legal custody of the children.14 under pennsylvania law, legal custody 7 jacob v shultz-jacob, 923 a2d 473, 2007 pa super lexis 957 (pa super 2007). 8 id 923 a2d at 476. 9 vermont enacted civil unions in response to the decision of the vermont supreme court in baker v state, 170 vt 194, 744 a 2d 864 (1999), holding that same-sex couples in vermont could not be denied the “common benefits” available to oppositesex couples through marriage. see 1999 vermont house bill no 847, codified at vt stat ann tit 15 §§ 1201-1207 and tit 18 §§ 5160-5169. 10 it is hereby declared to be the strong and longstanding public policy of this commonwealth that marriage shall be between one man and one woman. a marriage between persons of the same sex which was entered into in another state or foreign jurisdiction, even if valid where entered into, shall be void in this commonwealth. 23 pa cons stat § 1704 (2007). 11 jacob, above n 7, at 476. jodilynn also adopted two other children, who were her nephews, who were not the primary focus of litigation. 12 jacob v shultz-jacob, c p dauph, domestic relations section, docket no 00603dr-06 (sept 4, 2007). 13 jacob, above n 7, at 476. 14 ibid. the denning law journal 199 means, "the right to make major decisions affecting the best interest of a minor child, including, but not limited to, medical, religious and educational decisions."15 the trial court awarded jodilynn primary physical custody of the children, and awarded partial physical custody to both jennifer and carl.16 partial physical custody is, "the right to take possession of a child away from the custodial parent for a certain period of time."17 in the child support litigation, jodilynn sued jennifer, asserting that jennifer was liable to support the children although she had not adopted them. jennifer did not deny her liability for child support, but asked the trial court to join carl as an additional defendant, arguing that he, too, was liable. the court denied jennifer's request for "joinder" of carl, finding that jennifer by her actions had accepted responsibility for providing support for the children. in a decision explaining the denial of joinder, the trial judge first noted that there had been a stipulation of counsel that carl had never been in loco parentis to the children. the judge also noted the absence of any legislation in pennsylvania addressing “the rights and obligations of the myriad of parties potentially involved in the assisted conception of children.” the judge was concerned that to hold carl “liable for support would create a situation in which three parties/parents would be liable for support,” something simply not envisioned in pennsylvania law. the judge made a prediction which must have seemed safe at the time: “this court is unaware of any appellate or lower court decision in pennsylvania that have (sic) held three parties liable for support and would predict that our courts would never so require.”18 jennifer appealed both the custody and support orders, and the cases were decided together by the pennsylvania superior court. custody the superior court's analysis of jennifer's custody claims was brief. all the litigants below had stipulated that jennifer stands in loco parentis to the children.19 the doctrine of in loco parentis standing for asserting custodial rights had been addressed in 2001 by the pennsylvania supreme court in t b 15 23 pa cons stat § 5302 (2007). 16 jacob, above n 7, at 476. 17 23 pa cons stat §5302 (2007). 18 jacob v schultz-jacob, in the court of common pleas of dauphin county, pa, no 603 dr 2006 (nov 21, 2006) (slip op). 19 jacob, above n. 7, at 477. case commentary 200 v l r m 20 in t b, as in jacob, one party to a lesbian relationship was impregnated by a known sperm donor and the resulting child was jointly raised by the lesbian couple, but subsequently the biological mother left the relationship and assumed full authority over the child. when the biological mother refused her ex-partner all access to the child, the ex-partner sued for shared legal and partial custody and visitation.21 the biological mother argued that her ex-partner lacked standing to assert such rights. the lower courts found that the ex-partner did have in loco parentis standing, and the pennsylvania supreme court affirmed: “the phrase in loco parentis refers to a person who puts oneself (sic) in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through the formality of a legal adoption. the status of in loco parentis embodies two ideas; first, the assumption of a parental status, and, second, the discharge of parental duties. . . . the rights and liabilities arising out of an in loco parentis relationship are, as the words imply, exactly the same as between parent and child. . . .”22 confusingly, although the court opined that a non-parent with in loco parentis standing has exactly the same rights and responsibilities as a parent, it later contradicted itself and noted that it had recently reaffirmed "that where a custody dispute is between a biological parent and a third party, the burden of proof is not evenly balanced and that the evidentiary scale is tipped hard to the biological parent's side."23 there is one critical distinction between the facts in t b and the facts in jacob. in t b, “the sperm donor's parental rights were terminated after the child was born.”24 hence the courts that dealt with t b and l r m did not have to concern themselves with the solomon-like possibility of splitting the child into thirds. in jacob, jennifer essentially argued that the trial court had erred in not granting her primary custody of the children.25 she had presented testimony from an expert witness (a psychologist), “that absent the possibility of an 20 t b v l r m, 786 a 2d 913 (pa 2001). 21 in pennsylvania, “visitation” is, “the right to visit a child, (but) the term does not include the right, to remove a child from the custodial parent's control.” 23 pa cons stat 5302 (2007). 22 t b, above n 20, at 916-917. 23 ibid, at 919, n 8, citing charles v stehlik, n 2, above. 24 t b, above, n 20, at 915, n 1. 25 ibid. the denning law journal 201 'ideal' arrangement, that is, shared custody,26 primary custody should be awarded to her."27 jennifer cited the recent case of jones v jones in which the pennsylvania superior court had upheld the granting of primary physical custody of two children to a woman in exactly jennifer's position, i.e., the lesbian ex-partner of the biological mother.28 interestingly, in jones the pennsylvania superior court referred to the ex-partner as the "non-biological parent" of the children. one cannot help but wonder exactly what a "nonbiological parent" is, as the court did not bother to define this new legal term of art. apparently in pennsylvania we now have: 1) parents (biological or adoptive), 2) step-parents, 3) third parties standing in loco parentis, and 4) non-biological parents. to what extent category 4 overlaps categories 2 and 3, it is impossible to say. the jacob court readily distinguished the instant case from the situation in jones where the biological mother had “tried in every way possible to sabotage (her ex-partner's) relationship with the children,” “suffered from psychological dysfunction” and had a drinking problem.29 jodilynn had no such conditions, nor any approximation of them.30 hence, despite repeating the mantra that a person with in loco parentis standing has “exactly the same” rights arising out of that relationship “as between a parent and child,”31 the court applied the natural parent preference to affirm primary physical custody in jodilynn.32 child support the more fascinating aspect of jacob is its analysis of the child support issues. the precise question on appeal was the refusal of the trial court to join carl as a party defendant. jennifer did not contest her own liability for support of the children despite the fact that she had not adopted them. rather, she argued that carl was also liable, and hence was an “indispensable 26 shared custody" is defined in pennsylvania as, "an order awarding shared legal or shared physical custody, or both, of a child in such a way as to assure the child of frequent and continuing contact with and physical access to both parents." 23 pa const stat § 5302 (2007). 27 jacob, above n 7, at 477. 28 jones v jones, 884 a 2d 915 (pa super 2005). 29 jacob, above n 7, at 479. 30 ibid. 31 ibid, at 477. 32 ibid, at 479. case commentary 202 party” to the litigation. (since the pennsylvania child support formula33 simply does not contemplate a situation in which three adults would be liable to support the same child(ren), it was unclear whether jennifer's support obligation would be lowered if carl also were compelled to support them.) pennsylvania's support law provides that, "parents are liable for the support of their children who are unemancipated and 18 years of age or younger."34 of course, jennifer was neither the biological nor adoptive parent of the children. however, her liability was squarely premised on the analysis of the superior court in the factually similar 2002 case of l s k v h a n.35 l s k and h a n had had an intimate lesbian relationship for over a decade during which l s k bore five children (a solo and, subsequently, quadruplets) conceived through artificial insemination. h a n carried out many parental duties, indeed acted as the stay-at-home parent when l s k returned to work after the births. the couple separated, with l s k eventually moving to california with the children. h a n sued l s k for custody and was eventually found to have in loco parentis status and awarded shared legal and partial physical custody. l s k, naturally, sued h a n for child support, and h a n denied liability on the basis that she was neither the children's natural nor adoptive parent. the trial court found that h a n was equitably estopped from denying liability, and the superior court affirmed. first, the court noted that h a n's in loco parentis status conferred in the custody litigation, "embodies two ideas: first, the assumption of parental status, and, second, the discharge of parental duties." h a n argued that her status was similar to that of a stepparent and that stepparents have no legal duty to support a child after the dissolution of a marriage. the court acknowledged that stepparents normally cannot be sued for child support,36 but noted that if they hold themselves out as a child's parent they may be estopped from denying liability.37 thus, h a n was properly estopped. she and l s k had decided to start a family together, she had acted as a "co-parent," and she had sued for custody. "although statutory law does not create a legal relationship, applying equitable principles we find that in order to protect the best interest of the children involved, both parties are to be responsible for the emotional and financial needs of the children."38 however, the facts in l s k differed from the facts in jacob in one notable respect. l s k had been impregnated with 33 pa rules of civil procedure 1910.16-4. 34 23 pa const stat 4321(2) (2007). 35 l s k v h a n, 813 a 2d 872 (pa super 2002). 36 drawbaugh v drawbaugh, 647 a 2d 240 (pa super 2004). 37 citing hamilton v hamilton, 813 a 2d 403 (pa super 2002). 38 h a n secondarily argued that the statewide support guidelines should not apply to her where her liability was based on equitable principles rather than the support act. the superior court rejected this proposition. l s k, above n 35, at 878-9. the denning law journal 203 sperm from anonymous donors; therefore the five children in l s k had no known father to turn to for support. jodilynn's children had a known father: carl. in jacob, the trial court had cited l s k to conclude that jennifer rather than carl was responsible for child support.39 the superior court found such reliance inappropriate. unlike h a n, jennifer was not denying her own liability for child support, only asserting that she shared her liability with carl (and, of course, jodilynn). the superior court found carl liable on two separate grounds: estoppel and legal parenthood. carl was estopped because he had made significant voluntary financial contributions on the children's behalf and had been awarded partial custody. moreover, as the children's biological father whose rights had never been terminated in an adoption proceeding, carl was statutorily liable to support them under the support law. the superior court also rejected the trial court's concern that inclusion of a third party in the child support calculations would create a situation never anticipated by the support guidelines. the court rather inscrutably reasoned: “we are not convinced that the calculus of support arrangements cannot be reformulated, for instance, applying to the guidelines amount set for (jennifer) fractional shares to incorporate the contributions of another obligee.”40 accordingly, the superior court vacated the support award and remanded the case to the trial court with directions that carl "be joined as an indispensable party for a hearing at which the support obligation of each litigant is to be recalculated." an ironic twist: three "parents" become two when the superior court's decision in jacob was handed down on april 30th 2007, it became national news in the united states as apparently the first appellate case to find that a child may essentially have three parents.41 new york law school professor arthur s. leonard was quoted in one article as stating, "i'm unaware of any other state appellate court that a child has, simultaneously, three adults who are financially obligated to the child's support and are also entitled to visitation.”42 39 jacob, above n 7, at 480. 40 ibid, at 482. 41 see "pennsylvania court orders sperm donor to lesbian couple to pay child support," assoc press, may 9, 2007, available at http://www.foxnews.com/printer_friendly_story/0,3566,271116,00.html. 42 ibid. case commentary 204 but in a development of which the superior court was apparently unaware, carl frampton had unexpectedly died of a stroke in march 2007, a month after the case was submitted to the court and a month prior to the court's decision.43 this left the children with two living parents and one deceased parent, which is nevertheless legally different in significant ways from having only two parents. on the one hand, the law is clear in pennsylvania that a parent may disinherit even a minor child and that a deceased parent is not liable for child support.44 this is the majority rule in the united states, but recently it has been rethought in at least one american jurisdiction.45 on the other hand, carl had an enforceable obligation to pay child support for the period from at least the filing of the complaint until his untimely demise.46 while a pennsylvania parent may disinherit a child, even a minor child, if the parent dies intestate, the child is entitled to a share of the estate under the rules of intestacy.47 more significantly in many cases, the minor child of a deceased worker who has paid enough credits into the american social security system can receive survivors’ benefits on that parent’s earnings record.48 was the superior court correct? the superior court in jacob had no occasion to review jennifer’s in loco parentis status which has been stipulated to below, nor did it review the grant to her of shared legal and partial physical custody. with regard to custodial rights, the court merely affirmed the trial court’s decision to vest primary physical custody in jodilynn, the natural and legal mother, relying upon the natural parent preference in custody. certainly there are cogent policy and constitutional reasons for presuming that it is in a child’s best interest to be with a parent (natural or adoptive) as opposed to a non-parent. the united states supreme court has long asserted the primacy of parents. over fifty years ago, the supreme court stated, “it is 43 deceased sperm donor held liable for child support, a p, may 10, 2007, available at http://cbs3.com/topstories/local_story_130091936.html. 44 benson v patterson, 830 a 2d 966 (pa 2003). 45 l w k v e r c, 432 mass 438, 735 n e 2d 359 (mass 2000). “we conclude that the death of the father does not extinguish his duty to support his minor child.” 46 “an order of support shall be effective from the date of the filing of the compliant or petition for modification unless the order specifies otherwise.” pa rule of civil procedure 1910.17(a). 47 see generally 20 pa cons stat §§ 2102-2103 (2007). 48 see 20 code of federal regulations (cfr) § 404.350. based on information provided by counsel, it appears that the children are receiving survivors' benefits on carl’s social security account. the denning law journal 205 cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”49 moreover, the pennsylvania supreme court ruled in august 2002 that a same-sex partner may adopt the child of her partner without the biological parent partner giving up her own parental rights.50 thus, from august 2002 until their relationship ended, jodilynn and jennifer could have gone through an adoption proceeding which would have made them both legal parents of the children (and which presumably would have ended carl’s status as a parent). such an adoption proceeding would have required jodilynn’s agreement and active participation. we do not know whether jodilynn and jennifer ever contemplated an adoption or what jodilynn’s position on adoption would have been. if jodilynn had been ready, willing and able to have jennifer adopt the children but jennifer declined to do so, then equity would dictate that jennifer should not be heard to complain that she did not stand on equal footing in the custody litigation. if jodilynn objected to jennifer’s adoption of the children, the equities may again favor jodilynn in custody. jodilynn then could be interpreted as signaling that she wanted to remain in charge of the children, putting jennifer on notice that the children weren’t hers and would not be hers. of course there may have been myriad reasons why jodilynn and jennifer did not have jennifer adopt the children. they may never have thought about it. they may have thought about it but assumed it was unnecessary. they may not have been able to afford it. they may not have wanted to antagonize carl or lose his contributions to the children. carl may have voiced his objections. one or both of them might have feared what eventually happened—that their relationship might end badly. or, they may just have never gotten around to it. there may well have been other reasons that we cannot know. in the absence of an adoption of the children by jennifer, it is difficult to fault the courts for preferring jodilynn in the contest over primary custody. arguably jodilynn could have challenged jennifer’s in loco parentis standing, given the fact of carl’s parenthood and holding himself out as the children’s father. had jodilynn prevailed on that argument, jennifer would have had no custodial claims whatsoever. but this litigation posture, if successful, would have almost certainly precluded a claim against jennifer for child support. similarly, with regard to child support, the superior court had no occasion to review the issue of jennifer’s liability; she had conceded it. but should she have? since the children already had two natural and legal parents, jodilynn and carl, it is less than obvious that jennifer had a support 49 prince v massachusetts, 321 us 158 (1944). 50 in re: adoption of r b f, 569 pa 269, 801 a2d 1195 (2002). case commentary 206 duty than carl. if jennifer had wished to adopt the children and jodilynn had opposed the adoption, then equity would suggest that jennifer not have a legal duty of support. indeed, there are other examples in the law where a person has custodial or visitation rights but no reciprocal support obligations. foster parents may have custody of a child but no support duty; indeed they are paid by the state for fostering neglected or abused children.51 similarly, grandparents often have the right under state laws to seek visitation or even custody, with no corresponding support duty.52 again, one can hardly fault the superior court for imposing support liability on carl, a known biological and legal father. had jennifer challenged her own support liability, the courts might have confronted a more difficult decision. can or should children have three parents? on a technical reading of jacob, the children only have two legal parents, jodilynn and carl. jennifer is merely a third party standing in loco parentis to the children. but, in all practicality, the decision (except for carl’s death) would have left them with three parents. if we view legal parenthood as a bundle of legal rights and duties, three adults shared parenthood. while it may well be confusing for children to have two mothers and one father, many children today live in blended families where they relate to either one or two stepparents. depending on the age of a child and the strength of the personal relationship, that child may well view a stepparent as more of a parent figure than a natural parent. nor is it reasonable to argue that a child is harmed by having the right to obtain support from three adults. as problematic as the result in jacob is, it compares well with an analogous case decided by the utah supreme court two months earlier, jones v barlow.53 in jones, as in jacob, two women entered into an intimate relationship and traveled to vermont where they entered into a civil union. they agreed to have children, and one of them, cheryl, was impregnated by a known sperm donor. cheryl gave birth to a daughter in october 2001. for the next two years, cheryl and her partner, keri, co-parented the child. shortly after the child’s second birthday, the couple broke up, and cheryl left, taking the child with her. when cheryl cut off all contact between keri and the child, keri sued, seeking a “decree of custody and visitation” based on the claim that she had standing under the doctrine of in loco parentis. the trial court found that keri did stand in loco parentis and that visitation was in the 51 see smith v organization of faith families for equality and reform, 431 u s 816, 97 s ct 294 (1977). see also 16 purdon’s stat 2164(6) (2007). 52 see troxel v granville, 530 us 57, 120 s ct 2054 (2000). 53 jones v barlow, 154 p 2d 808 (utah 2007). the denning law journal 207 child’s best interest. the court awarded keri visitation and ordered her to provide financial support. on appeal, the utah supreme court reversed. the court reasoned that while keri may have stood in loco parentis to the child while she was actually living with the child and providing for her care, that status simply ended when cheryl and the child moved out. the court declined to give keri any ongoing rights—or duties—as a “psychological parent” or “de facto parent.” thus, the court terminated keri’s visitation rights and support duties without any consideration of the best interests of the child. surely this result is even less appealing and less protective of children than the three parent result reached in jacob. the wave of the future? jacob, while apparently unique in the united states, has a recent counterpart in canada. in 2007, in the case of a a v b b, the court of appeal for ontario found that a child may have two mothers and one father.54 the ontario appeals court was unequivocal: “five-year-old d d has three parents: his biological father and mother (b b and c c, respectively) and c c’s partner, the appellant, a a. a a and c c have been in a stable same-sex union since 1990.” the trial judge in a a would have found that d d had three parents, but felt that he lacked authority to do so. the court of appeal agreed that there was no such authority under canada’s children’s law reform act, but found that there was authority under the court’s inherent parens patriae jurisdiction. a a goes beyond jacob in one regard. technically, jacob held that the children had only two parents and another person in loco parentis. a a held that the child had three legal parents. however, in one regard a a was an easier case than jacob, in that the parties were all in agreement that such a declaration was in the child’s best interest. a a wanted the declaration in order to protect both her partner and the child, and the two women did not want to do an adoption which would have necessarily terminated the father’s rights. thus the court in a a was presented with a “win-win-win” scenario with all the parties seeking the same relief. in jacob, the three parties were clearly seeking conflicting results. if jacob and a a are the wave of the future, then what is over the horizon? could children have more than three adults with custodial rights and support duties? what happens if jodilynn marries and her husband starts to assume a 54 a a v b b, [2007] o j. no 2; 2007 on c lexis 2. case commentary 208 parental role? what if jennifer does the same?55 could children have five adults in the legal role of parent? if carl had a spouse or life partner who aided with the children, could the tally rise to six legally responsible parental figures? such a result could be fabulous for the financial support of children, at the expense of dividing their leisure time into far too many units. (imagine a child with six parental figures and twelve (or more) grandparental figures all seeking some quality time with that child or even battling over primary custody!) this would call upon our family law system to enter into truly uncharted territory where angels might indeed fear to tread. postscript on december 27, 2007, the highest court in pennsylvania, the pennsylvania supreme court, decided by the narrowest of votes the longawaited case of ferguson v mckiernan,56 which calls into serious question the result in jacob. in ferguson, the trial court had found that joel mckiernan and ivonne ferguson had entered into an oral contract whereby joel would donate sperm to ivonne in a clinical setting, his role as sperm donor would remain confidential, he would not seek custodial or visitation rights, and she would not seek child support. on valentine’s day 1994, joel provided a sperm sample at a medical center where the doctor had been told (falsely) that joel was ivonne’s husband. the sperm was used to fertilize her eggs by ivf, which were then implanted. ivonne gave birth prematurely to twins on august 25, 1994. she falsely named her estranged husband (paul ferguson) as the father on the twins’ birth certificates. in fact, her husband had filed for divorce on the very day that joel, the sperm donor, had provided his sperm at the medical center. from august 1994 until mid-1999, joel had almost no contact with the twins, nor did he contribute to their support in any way. indeed he moved out of the area, married and had a child by his wife. ivonne contacted joel in may 1999 and subsequently filed for child support. the trial court found that there was a binding contract between joel and ivonne to waive child support, but that this agreement violated public policy, hence was unenforceable. the pennsylvania superior court affirmed, 55 both former lesbian partners involved in the l s k case subsequently got married. l s k, above note 35, 813 a 2d at 875, n 2. 56 ferguson v mckiernan, 2007 pa lexis 2895. the case was argued before the court over two and a half years earlier, on may 17, 2005. there are normally seven justices on the court, but the vote in ferguson was 3-2, with former justices nigro and newman not participating in the decision. hence, the three-justice majority in the case, rather anomalously, do not constitute a majority of the full court. the denning law journal 209 adopting the trial court’s analysis.57 the pennsylvania supreme court has now reversed the lower courts. the state supreme court framed the issue thus: “we are called upon to determine whether a sperm donor involved in a private sperm donation—i.e., one that occurs outside the context of an institutional sperm bank—effected through clinical rather than sexual means may be held liable for child support, notwithstanding the formation of an agreement between the donor and the donee that she will not hold the donor responsible for supporting the child that results from the arrangement.” the majority acknowledged the usual rule that parents cannot waive a minor child’s right to be supported. however, the majority limited this rule to circumstances “of divorce and other parenting arrangements arising in the context of sexual relationships,” and proceeded to draw a “commonsense distinction between reproduction via sexual intercourse and the non-sexual clinical options for conception that are increasingly common in the modern reproductive environment.” had ivonne received ivf at a medical centre from a truly anonymous donor, that donor (even if later somehow identified) would clearly have had no liability for child support. the facts that ivonne chose joel as sperm donor because of his characteristics rather than using the lottery system of anonymous donation and that joel’s anonymity had been breached with a handful of family members were not enough to distinguish the instant case from anonymous clinical sperm donation. thus the agreement did not so offend public policy as to render it unenforceable. while this result left the twins without a legal father to support them, it protected the right of women to choose their sperm donor, the right of sperm donors to help such women procreate without fear of financial liability, and, in this case, the financial interests of joel’s marital child. it is unclear what implications the ferguson decision has for the scenario in jacob v schultz-jacob, should it recur. there is no direct impact as the jacob case was not appealed to the pennsylvania supreme court. the ferguson majority posited a continuum of situations, as follows: “thus, two potential cases at the extremes of an increasingly complicated continuum present themselves: dissolution of a relationship (or a mere sexual encounter) that produces a child via intercourse, which requires both parents to provide support; and an anonymous sperm donation, absent sex, resulting in the birth of a 57 ferguson v mckiernan 855 a 2d 121 (pa super 2004). case commentary 210 child. these opposed extremes produce two distinct views that we believe to be self-evident. in the case of traditional sexual reproduction, there simply is no question that the parties to any resultant conception and birth may not contract between themselves to deny the child the support he or she requires…. in the institutional sperm donation case, however, there appears to be a growing consensus that clinical, institutional sperm donation neither imposes obligations nor confers privileges upon the sperm donor. between these poles lies a spectrum of arrangements that exhibit characteristics of each extreme to varying degrees—informal agreements between friends to conceive a child via sexual intercourse; non-clinic nonsexual insemination; and so on.” the ferguson majority recognized that, “locating future cases on this spectrum may call upon courts to draw very fine lines, (but) courts are no strangers to such tasks. . . .” where the jacob facts would fall on this spectrum is difficult, if not impossible, to conclude with any certainty. as in ferguson, in jacob there was a known sperm donor and the children were conceived through artificial means. in neither case was the sperm donor named as father on the children’s birth certificates. however, in jacob it does not appear that conception was effected through medical intervention in a clinical setting. in ferguson, the sperm donor father had never asserted visitation rights; in jacob, the sperm donor father was awarded partial custody. in ferguson, the sperm donor father had made no contributions to the children’s support; in jacob, the sperm donor father had made contributions to the children in excess of $13,000 and had provided the family with a car. thus reasonable arguments could be made on both sides of the question of whether the ferguson rationale would be applied to a case such as jacob. finally, while a decision of the pennsylvania supreme court trumps a decision of the pennsylvania superior court, one must ask which represents the better public policy in the absence of clear statutory guidance. the jacob children ended up with three parental figures from whom they could claim support, rather than the customary two. but the ferguson children now have but one adult from whom they can claim parental responsibilities. clearly the jacob, three-parents, court has been more solicitous of the rights of children. although having three parents may well be confusing for any child, it has been amply demonstrated that having but one parent significantly heightens risks to a child’s financial well-being, as well as physical security.58 58 see, generally, american bar assoc. presidential working group on the unmet legal needs of children and their families, america’s children at risk (1993). immigration minister phil woolas has attacked lawyers and charities who work on behalf of asylum seekers by accusing them of u the denning law journal 173 the denning law journal vol 21 2009 pp 173-179 case commentary remoteness of contractual damages transfield shipping inc v mercator shipping inc (the “achilleas”) [2008] 2 lloyd's rep 275 john halladay* on 9 july 2008, the house of lords handed down its decision in transfield shipping inc v mercator shipping inc (the “achilleas”).1 overturning a series of lower decisions, the house of lords unanimously decided to restrict the damages available for the breach of a charterparty caused by the late re-delivery of the ship. the case will undoubtedly be important for those in the shipping industry, but will also be important for the development of the doctrine of remoteness of damages in contract law. facts the achilleas, a bulk carrier owned by mercator, was let under a time charter dated 22 january 2003 to transfield for about five to seven months at a daily hire rate of us$13,500. on 12 september 2003 the parties extended this for a further five to seven months at a daily rate of us$16,750. the latest date for redelivery was 2 may 2004. by april 2004 market rates had more than doubled. transfield gave notice of redelivery between 30 april and 2 may 2004. mercator then fixed the vessel for a new four to six month hire to cargill, following on from the first charter, at a daily rate of us$39,500. the latest date for delivery to cargill, after which they were entitled to cancel, was 8 may 2004. with less than a fortnight of the original charter to run, transfield fixed the vessel under a subcharter to carry coals from qingdao in china across the yellow sea to discharge at two japanese ports. it was reasonably expected that transfield could still redeliver by 2 may 2004 and mercator made no objection. the vessel was unfortunately delayed and was not redelivered to mercator until 11 may. * senior lecturer in law, university of buckingham, llb (toronto), llm (cantab), barrister and solicitor, law society of upper canada. 1 [2008] ukhl 48; [2008] 2 lloyd's rep 275. case commentary 174 by 5 may it had become clear to everyone that the vessel would not be available to cargill before the cancelling date of 8 may. by that time, rates had fallen again. in return for an extension of the cancellation date to 11 may, mercator agreed with cargill to reduce the rate of hire for the new fixture to us$31,500 a day. mercator claimed damages for the loss of the difference between the original rate and the reduced rate over the period of the fixture. at us$8,000 a day, the total sum amounted to us$1,364,584.37. transfield said that mercator were not entitled to damages calculated by reference to their dealings with the new charterers and that they were entitled only to the difference between the market rate and the charter rate for the nine days during which they were deprived of the use of the ship, which it estimated amounted to a total of us$158,301.17. history the dispute was referred to arbitration. the arbitrators all found that the damage claimed by the owners was of a type not unlikely to occur upon the breach of the contract and therefore fell within the first limb of the test in hadley v baxendale2 as arising “naturally, ie according to the usual course of things, from such breach of contract itself”.3 in spite of this, all of the arbitrators found that had anyone in the shipping industry been asked, they would have said that this type of damages was not recoverable. the majority took the view however that, despite the view of the shipping industry , this had no effect on the recoverability of the damages, and therefore found for the claimant. on appeal from the arbitrators, christopher clarke j4 and the court of appeal (ward, tuckey and rix ljj)5 upheld the majority decision. rix lj observed that in none of the earlier cases was the recoverability of damages for the loss of a subsequent charter actually in issue. the case was therefore to be decided based on hadley v baxendale principles and he found that “the refixing of the vessel at the end of the charterers’ charter was not merely ‘not unlikely’ it was in truth highly probable (barring other possibilities).”6 the 2 (1854) 9 exch 341. 3 ibid, at 354. 4 [2007] 1 lloyd's rep 19. 5 [2007] 2 lloyd's rep 555. 6 [2007] 2 lloyds rep 555, at 574. the denning law journal 175 court of appeal decision was met by much criticism, partially on how the decision was so out of line with the accepted view in the industry.7 house of lords in the house of lords, the appeal was allowed and damages were reduced to the difference between the charter rate and the market rate for the period of the delay. the damages for the loss of the subsequent charter were not recoverable as being too remote. there were two different approaches taken by the house in order to reach this result. lord rodger and baroness hale took what baroness hale called the “narrower ground”.8 lord rodger explains: “…i am satisfied that, when they entered into the addendum in september 2003, neither party would reasonably have contemplated that an overrun of nine days would “in the ordinary course of things” cause the owners the kind of loss for which they claim damages. that loss was not the “ordinary consequence” of a breach of that kind. it occurred in this case only because of the extremely volatile market conditions which produced both the owners' initial (particularly lucrative) transaction, with a third party, and the subsequent pressure on the owners to accept a lower rate for that fixture. back in september 2003 this loss could not have been reasonably foreseen as being likely to arise out of the delay in question. it was, accordingly, too remote to give rise to a claim for damages for breach of contract.”9 as this resolved the question on appeal, lord rodger and baroness hale found it unnecessary to decide on the issues discussed below. the wider grounds for allowing the appeal are developed by lord hoffman, making reference to recent academic literature.10 while the rule in hadley v baxendale will be usually be enough, in some cases there will need 7 see j sundaram “is the court of appeal decision in the achilleas good law?” [2008] denning law journal 187; weale “dogs that didn’t bark” [2008] lmclq 6; halson “time charters, damages and remoteness” [2008] lcmlq 119. 8 [2008] 2 lloyd's rep 275, at 293. 9 [2008] 2 lloyd's rep 275, at 286. 10 in particular a kramer “an agreement-centred approach to remoteness and contract damages” in cohen and mckendrick (eds) comparative remedies for breach of contract, (oxford: hart publishing 2005) pp 249-286; andrew tettenborn “hadley v baxendale foreseeability: a principle beyond its sell-by date” (2007) 23 journal of contract law 120-147; andrew robertson “the basis of the remoteness rule in contract” (2008) 28 legal studies 172. case commentary 176 to be a further limit on damages. lord hoffman states that liability should be based “upon the interpretation of the contract as a whole, construed in its commercial setting”11 referring to the use of terms implied as a matter of law developed in liverpool city council v irwin.12 while there will not be much evidence of the commercial setting in most contracts, he suggests that some types of contracts, such as shipping and banking contracts, provide examples where a further limit on damages might be imposed by way of an implied term. based on this, he finds that in a charterparty, there is an implied term as a matter of law that the loss of profit from a subsequent fixture is not a type of loss being assumed by the charterer.13 lord hope appears to agree with this approach. he says: “the fact that the loss was foreseeable the kind of result that the parties would have had in mind, as the majority arbitrators put it is not the test. greater precision is needed than that. the question is whether the loss was a type of loss for which the party can reasonably be assumed to have assumed responsibility.”14 lord walker’s speech does not expressly follow either the narrow view or the wider view although he expressly adopts the reasons given in the speeches of lord hoffmann, lord hope and lord rodger.15 but in conclusion, his decision returns to the large, unpredictable nature of the damages when he states: “but it was contrary to the principle stated in the victoria laundry case, and reaffirmed in the heron ii, to suppose that the parties were contracting on the basis that the charterers would be liable for any loss, however large, occasioned by a delay in re-delivery in circumstances where the charterers had no knowledge of, or control over, the new fixture entered into by the new owners.”16 11 [2008] 2 lloyd's rep 275, at 278. 12 [1977] ac 239. 13 lord hoffman draws an analogy with his own speech in banque bruxelles lambert sa v eagle star insurance co ltd (sub nom south australia asset management corporation v york montague ltd) [1997] ac 191. 14 [2008] 2 lloyd's rep 275, at 282. 15 ironically lord walker impliedly criticises the decision in the heron ii for the same reason. he states: “the house's decision was unanimous but each member of the appellate committee gave a full opinion, and unfortunately none of them in terms expressed either agreement or disagreement with any of the others.” 16 [2008] 2 lloyd's rep 275, at 292. the denning law journal 177 discussion (a) the narrow approach the narrow approach taken by lords rodger and walker and baroness hale appears to be in line with the decision in victoria laundry v newman.17 in victoria laundry, a distinction is made between the ordinary profits made in the usual course of things and the extraordinary profits that would have been earned under a government contract. the type of liability, lost profits, is within the contemplation of the parties when they make their contract. but at some point the loss becomes sufficiently large so as to make it of a type that goes beyond their contemplation. in the achilleas, the large fluctuations in the market result in the loss suffered on the subsequent charter being much greater than anticipated. this results in the damages being of a type not contemplated by the parties when the contract is made. there is therefore a well-established basis for reaching a decision based on these grounds. but this approach does operate in a state of tension with the general principle that the remoteness test limits the type of damage but not their extent.18 it creates an uncertain line as to when the extent of the damages makes them a different type of loss. would there be a different decision if the change in the market was only slight so that the lost charter resulted in only slightly higher damages? there is also a concern as to whether this is the correct approach to be taking to this case. is the understanding of the shipping community that damages are not to include such losses irrelevant? it may be that lord hoffman is correct and that a broader view is required on these facts. (b) the broader approach the broader view is that this type of damage is not recoverable because in this type of contract, there is an implied term that these damages have not been assumed by the defendant. this type of approach is attractive as it resolves a number of questions created by a test which only uses hadley v baxendale principles. in the classic example of hiring a cab to take you to an 17 [1949] 2 kb 528. 18 in c czarnikow ltd v koufos (the heron ii) [1969] 1 ac 350, there was a rise in the sugar market which was found to be not too remote. in seven seas properties v al-essa [1993] 1wlr 1083, a large profit made by flipping the property to a second buyer was not “signalised” and was therefore too remote. case commentary 178 important meeting, no matter how much the cab driver is contemplating your loss,19 he will not be liable for the loss you have suffered by missing the meeting. lord hoffman would say that in this type of contract, it is implied that the cab driver is not assuming liability for that type of loss. the approach taken by lord hoffman does raise at least two questions. the first question relates to the burden of proof. is it up to the defendant to prove it did not assume liability for the type of loss or up to the claimant to prove that it did assume liability. lord hoffman appears to be taking the approach that it is up to the claimant to show that there is an implied term whereby the defendant assumed liability.20 but if this is what lord hoffman is arguing, he would not appear to have the support of lord walker.21 the second question is the process of implying a term as a matter of law in this type of situation. it is clear that this term is being implied into the particular type of contract. it is less clear whether this implication comes from the shared view of the industry or whether it comes from the need to avoid the uncertainty the defendant would face if this type of contract exposed it to this type of liability. it may be that a number of considerations can be taken into account when deciding whether to imply such a term. comment by approaching remoteness as a term implied by law, lord hoffman has potentially found a new approach for remoteness and also many other doctrines of contract law. they all can be treated as a type of term implied by law. the great advantage of this approach is that you are not seeking to find what the parties would have said, but rather involve the court in trying to find the ideal default position for that type of contract. this will have to take into account what most parties would have said in the circumstances, but need not put words into the mouth of the particular parties. hopefully it will try to find not only a reasonable position, but also try to find the most useful position for the type of contract. the ideas of the industry will be relevant to finding a useful default position. it might also take into account ideas of proportionality, risk allocation and insurance. the overall effort should be a pragmatic one, striving to find the position which is most useful to parties 19 for instance because you have told him directly. 20 [2008] 2 lloyd's rep 275, at 278. he makes the point that this is consistent with his approach in banque bruxelles lambert sa v eagle star insurance co ltd (sub nom south australia asset management corporation v york montague ltd) [1997] ac 191. 21 he appears to reject the need to imply a term to create liability at para 68, following lord upjohn in the heron ii. the denning law journal 179 who wish to contract and which could be safely predicted at the time of the making of the contract. the achilleas potentially opens the door for a greater use of terms implied by law to resolve difficulties in general contract doctrines. it allows for the consideration of factors applying to a type of contract rather than making do with a single doctrine to fit all types of contracts. we will now see if future courts take advantage of that potential. remoteness of contractual damages facts history house of lords discussion (a) the narrow approach (b) the broader approach comment the denning law journal 171 denning law journal 2007 vol 19 pp 171-180 incorporation of charterparty arbitration clauses into bills of lading: recent developments miriam goldby∗ abstract this article looks at two recent court decisions and one recent arbitral award which help to clarify the position of english law with regard to incorporation of charterparty arbitration clauses into bills of lading. it starts by giving a brief overview of past decisions of the english courts on this issue. it proceeds to consider recent developments and to draw conclusions therefrom. most bills of lading contain jurisdiction clauses providing that parties are to resolve any disputes arising in connection with the contract of carriage contained in the bill through litigation in the courts. where a bill of lading is issued under a charterparty, however, and where it expressly incorporates the charterparty’s arbitration clause into its terms, the parties to the contract of carriage contained in the bill of lading, including any transferees of the bill, may be obliged to refer their disputes to arbitration. wilson notes that “[a] strict contra proferentem approach has been adopted towards [attempts to incorporate charterparty arbitration clauses into bills of lading] since, while arbitration clauses are common in charterparties, they are rarely found in bills of lading.”1 three conditions must be met in order for a charterparty arbitration clause to be successfully incorporated into the bill of lading. first of all, “the operative words of incorporation must be found in the bill of lading itself”.2 secondly such words must be suitable to describe the charterparty clause that is being incorporated.3 finally, the incorporated ∗ phd student and teaching fellow at university college london. 1 j f wilson carriage of goods by sea, 2004, 5th ed, pearson longman, 239. the same commentator notes that growing criticism is being levelled at the use of incorporation clauses, particularly when they are used against an indorsee of a bill of lading who rarely has any knowledge of the charterparty terms. ibid, 241. regarding this see also c ambrose and k maxwell london maritime arbitration, 2002, 2nd ed, llp, london, 32-33. 2 the varenna [1983] 2 lloyds rep 592, 594. 3 the emmanuel colocotronis (no 2) [1982] 1 lloyds rep 286, 289. arbitration clauses need to be specifically referred to as they are regarded as ancillary to the main incorporation of charterparty arbitration clauses in bills of lading 172 clause must be consistent with the terms of the bill of lading, and in the event of conflict, the provisions of the bill of lading will prevail.4 operative words of incorporation: prevailing issues a question which lacks a completely clear answer is whether the arbitration clause on a charterparty may be incorporated into a bill of lading through general words of incorporation, i.e. without being specifically referred to. this issue is a thorny one, particularly in view of the fact that transferees of negotiable bills of lading, who are not the original parties to the contract of carriage, may not be aware that by accepting the bill of lading they are also agreeing to refer any disputes that may arise in connection with it to arbitration. it would seem that it is only fair to potential subsequent holders of the bill that specific reference should be made to the arbitration clause in the bill of lading for it to be incorporated.5 historically, the decision which may be viewed as raising questions in this regard, is the court of appeal’s decision in the merak,6 a decision of the 1960s. in this case, the bill of lading stated specifically that it was issued “as per charter dated 21st april 1961” and the incorporation clause that was the object of contention read as follows: “[a]ll the terms, conditions, clauses and exceptions including clause 30 contained in the said charter party apply to this bill of lading and are deemed to be incorporated herein.” the problem was that not clause 30 but clause 32 of the charterparty was the arbitration clause. the reference to clause 30 was clearly an error as that clause gave liberty to the shipowners to substitute a vessel, if one were named, on due purpose of a contract of carriage. see wilson, 2004, 240 and ambrose and maxwell, 2002, 33. 4 see for example hamilton v mackie (1889) 5 tlr 677. 5 this is desirable for three reasons which were set forth by sir john megaw in aughton ltd v m f kent services ltd, (1991) 57 build l r 1 and cited by p todd ‘incorporation of arbitration clauses into bills of lading’ (1997) journal of business law 331, 337: “first, an arbitration agreement may preclude the parties to it from bringing a dispute before a court of law. secondly, an arbitration agreement has to be ‘a written agreement’. thirdly, the arbitration clause differs from other types of clause because it constitutes a ‘self-contained contract collateral or ancillary to’ the substantive contract. on the second point, sir john emphasised that the object of the writing requirement was to ensure that nobody is to be deprived of his right to have a dispute decided by a court of law, unless he has consciously and deliberately agreed that it should be so. in sir john's view, if an oral agreement would not suffice it must follow that an agreement depending, in any essential part, on inference will not suffice either.” 6 [1964] 2 lloyds rep 527. the denning law journal 173 notice to the charterers and it would have had no bearing once the ship had commenced loading. however, lord justice sellers held that: “[i]n my opinion, if ‘including clause 30’ is struck out, the remaining clause is quite adequate and effective to make clause 32, the arbitration clause in the charter-party, ‘deemed to be incorporated’ into the bill of lading. among the various clauses in the charter-party which can be regarded as relevant to the bill of lading is clause 32, which in terms (sic) stipulates for arbitration ‘any dispute arising out of this charter or any bill of lading issued hereunder . . .’”7 this case must be contrasted with all other court decisions concerning general words of incorporation.8 most of these decisions9 were considered in the varenna10 where the court of appeal held that the use of general words of incorporation referring to the “terms” and/or “conditions” of a charterparty, in a bill of lading were (and had for years been) construed in the restrictive way. that is, such general words of incorporation were capable of incorporating such conditions and exceptions as were appropriate to the carriage and delivery of goods, and did not as a matter of construction extend to a collateral term such as an arbitration clause even if that clause was expressed in terms which were capable of referring to the bill of lading. this case was different from the merak in that the clause in the charterparty itself did not refer to the bill of lading, and stated merely “any dispute arising under this charter shall be settled in london by arbitration….”. more importantly, the incorporation clause in the bill of lading was not as widely worded and referred merely to “all conditions and exceptions of which charterparty”.11 oliver lj observed that while the incorporating words in the merak were general words, they were as wide as they could possibly be, referring to “all the terms, conditions, clauses and exceptions . . . contained in the 7 ibid at 531. 8 see todd, 1997, 348: “the merak alone stands in the way of the general conclusion that arbitration clauses, whatever their wording, can be incorporated only by explicit words in the bill of lading. all other contrary statements are no more than dicta (since only in the merak was the arbitration clause actually incorporated).” the same commentator (ibid) rightly maintains that the case should be restricted to its own facts. 9 in particular t w thomas & co ltd v portsea ss co ltd (the portsmouth) [1912] ac 1. 10 skips a/s nordheim v syrian petroleum co. ltd (the varenna) [1983] 2 lloyds rep 592. 11 [1983] 2 lloyds rep 592. incorporation of charterparty arbitration clauses in bills of lading 174 charterparty”, and therefore of such strength and width that they could not, in the absence of some strong indication to the contrary, be cut down or restricted. they were thus interpreted to the effect that all the clauses of the charterparty were to be applied, subject only to the test of consistency, a test clearly passed by the arbitration clause contained in the charterparty in question. two relevant cases were decided in the 1990s. in the nerano,12 the court of appeal confirmed the decision of brandon j in the rena k13 and reversed a trend not to allow manipulation of the arbitration clause in the charterparty to fit the bill of lading,14 by saying that such clause was deemed incorporated in spite of the fact that it read as follows “… should any dispute arise between the owners and charterers the matter in dispute shall be determined in london… according to the arbitration act.” though the reference to “charterers” was inappropriate, the court held that the intention of the parties to incorporate the arbitration clause was clear from the wording of the incorporation clause, which provided “[a]ll terms and conditions, liberties, exceptions and arbitration clause of the charter party, dated as overleaf, are herewith incorporated.” in excess insurance co v mander,15 an insurance case concerning the question whether an incorporation clause providing “[a]ll terms, clauses, conditions and warranties as original and to follow original settlements and/or agreements of the reassureds in all respects” successfully incorporated an xol treaty arbitration clause into a retrocession, colman j confirmed that general words of incorporation were insufficient to incorporate an arbitration clause. he did not treat the wording of the arbitration clause as important in deciding this matter. both these cases emphasise the importance of the wording of the incorporation clause itself, rather than that of the arbitration clause which it is sought to incorporate. this is reasonable as it is the contents of the incorporation clause that transferees of the bill of lading can reasonably be expected to be aware of. the decision in the nerano was confirmed in the delos16which concerned a congenbill17 bill of lading, a popular standard bill of lading form which will be discussed further below. 12 [1996] 1 lloyds rep 1. 13 [1978] 1 lloyds rep 545. 14 see owners of the annefield v owners of cargo lately laden on board the annefield (the annefield) [1971] 1 lloyds rep 1 and the nia matteini [1988] 1 lloyds rep 452. 15 [1997] 2 lloyds rep 119. 16 [2001] 1 lloyds rep. 703. the denning law journal 175 recent decisions and the congenbill the congenbill standard form bill of lading is probably the most widely used bill of lading in general tramp shipping today,18 and the wording of its terms was revised in 1994 in conjunction with the revision of the gencon19 standard charterparty form, with which it was mainly intended to be used.20 the main reason for the revision was to ensure that the standard law and arbitration clause which forms part of the gencon charterparty form was successfully incorporated into the bill of lading. account was taken of the decisions of the english courts discussed above in drafting the new incorporation clause for the 1994 edition of the congenbill, and as a result it was decided that specific reference should be made in this clause to the arbitration clause contained in the charterparty. the use of the 1994 edition of the congenbill standard form was strongly advised when the ship carrying the goods was chartered under gencon terms, to ensure that the arbitration clause in the charterparty applied.21 the face of the 1994 edition of the congenbill22 is headed “bill of lading: to be used with charterparties”. clause 1 of the conditions of carriage on the reverse side of the bill reads as follows “[a]ll terms and conditions, liberties and exceptions of the charter party, dated as overleaf, including the law and arbitration clause, are herewith incorporated.”23 so, for the first time, in a general printed widely-used standard bill of lading form, the parties would be agreeing to refer their disputes to the arbitration venue designated in the charterparty.24 the introduction of such an incorporation clause in a standard bill of lading form is important, because standard 17 congenbill is the code name which refers to standard bill of lading for general tramp shipping drafted by the baltic and international maritime council (bimco). 18see http://www.bimco.dk/corporate%20area/documents/document%20samples/bill%20 of%20ladings/congenbill.aspx consulted 10th november 2006. 19 gencon is the codename for bimco’s uniform general charter. 20 “the congenbill was, when first issued, mainly intended to be used with the gencon charter but could also be used with other charter parties. however, considering the extensive use of the congenbill together with the gencon charter it is obviously very important that the two forms are aligned so that all the necessary clauses of the gencon charter are suitable incorporated into the bill of lading.” see ibid. 21 see ibid. 22 available at http://www.bimco.dk/upload/congenbill_1994.pdf. 23 the clause is therefore very similar to that which was the subject of the decision in the nerano. 24 see m moon ‘new opportunities for maritime arbitration and arbitrators’, (2004) 70 arbitration 274. http://www.ingentaconnect.com/content/external-references?article=0003-7877(2004)70l.274[aid=7851745] http://www.ingentaconnect.com/content/external-references?article=0003-7877(2004)70l.274[aid=7851745] http://www.bimco.dk/corporate%20area/documents/document%20samples/bill%20of%20ladings/congenbill.aspx http://www.bimco.dk/corporate%20area/documents/document%20samples/bill%20of%20ladings/congenbill.aspx http://www.bimco.dk/upload/congenbill_1994.pdf incorporation of charterparty arbitration clauses in bills of lading 176 contract terms are an important indication of mercantile practice.25 furthermore, the standardisation of terms ensures users’ familiarity with them and makes it harder to argue that they were not aware of their contents. therefore, the inclusion of an incorporation clause referring specifically to an arbitration clause within a standard form introduces a considerable amount of certainty and predictability in the relations between the parties to the contract of carriage contained in the bill of lading as regards dispute resolution matters. accordingly, in the 2003 decision, epsilon rosa,26 the court of appeal held that: “the particular concern about the incorporation of arbitration clauses is met by the congenbill form which expressly says that it incorporates all terms of the charter-party ‘including the law and arbitration clause.’ parties involved in transactions such as these will be aware that contracts of this kind do commonly contain dispute resolution machinery and often provide for arbitration in some neutral forum.” another decision concerning a bill of lading in the congenbill form was the vinson,27 a queen’s bench decision which applied the san nicholas,28 a court of appeal decision from the seventies. the question at 25 hj berman and c kaufman, ‘the law of international commercial transactions (lex mercatoria)’ (1978) 19 harvard international law journal 221, 222-223 explain that today the international trade community “continues to develop present day mercantile law… through their contract practices and the common understandings on which they are based, and also through regulations of self-governing trade associations and through decisions of arbitration tribunals to which their disputes are submitted. these contract practices, understandings, regulations and decisions constitute a body of customary law which is the foundation on which national and international commercial legislation has been and continues to be built.” see also p devlin ‘the relation between commercial law and commercial practice’ (1951) 14 modern law review 249, 252 “the written contract which so largely destroyed custom has placed in the hands of business men a substitute for it.” 26 [2003] 2 lloyds rep 509, 515 paragraph 26. 27 quark ltd v chiquita unifrutti japan ltd and ors (the vinson) qbd (com ct) (andrew smith j) 26 april 2005 (2005) 677 lmln 1 (otherwise unreported). 28 [1976] 1 lloyds rep 8. in this case, the gaps in the bill of lading incorporation clause, which were supposed to be filled in with the date of the charterparty whose terms were being incorporated, and the names of the parties thereto, were left blank. in his judgement lord denning held as follows: “it seems to me plain that the shipment was carried under and pursuant to terms of the head charter. the blanks were left because the master and the other people in recife did not know its date and the denning law journal 177 issue in the vinson was whether an arbitration clause was incorporated despite the fact that the charterparty wherein it was contained was not identified. it was held by smith j that the courts would interpret a provision such as clause 1 of the conditions of carriage in the congengbill form as evincing an intention to incorporate terms notwithstanding that the charterparty which contained the arbitration clause referred to was not identified. he added that the courts were reluctant to conclude that, despite the parties’ apparent intention to incorporate charterparty terms, the bill of lading was so ambiguous as to be void, or that the attempt to incorporate charterparty terms failed on the ground that the incorporation clause was too uncertain, although the court might be driven to one of those conclusions. it therefore does not appear that, under english law, identification of the specific charterparty whose terms it is sought to incorporate into the bill of lading is essential to the incorporation being valid.29 however it is important to note that one of the reasons why the court reached this conclusion in the vinson was the use of the congenbill standard form, which “reinforced the argument that the parties intended to incorporate provisions from a the parties to it so as to be able to fill them in. the head charter was the only charter to which the shipowners were parties: and they must, in the bill of lading, be taken to be referring to that head charter. i find myself in agreement with the statement in scrutton on charterparties, (18th ed (1974)), at p 63: ‘a general reference will normally be construed as relating to the head charter, since this is the contract to which the shipowner, who issues the bill of lading, is a party. . . . it not infrequently happens that, when a printed form of bill of lading provides for the incorporation of the ‘charterparty dated____’, the parties omit to fill in the blank. it is submitted that the effect is the same as if the reference were merely to ‘the charterparty’ and the omission does not demonstrate an intent to negative the incorporation.” 29 cf the situation in the united states. see for example hawkspere shipping co ltd v intamex sa & anr (the fidelity) us court of appeals (4th circuit) (niemeyer, michael and king ct jj) 27 may 2003, 330 f.3d 225, where the bills of lading in question stated that they were ‘to be used with charter-parties’, but the spaces provided for insertion of the date of the governing charterparty had been left blank. king j noted, ibid, 233-234 that ‘courts consistently hold that attempts to incorporate a charterparty into a bill of lading are ineffective when the spaces in the bill that would have identified the charterparty are left blank…. decisions in which courts have found a proper incorporation are those in which the charterparty was identified in the bill of lading, at the least, by date. [citation: steel warehouse, 141 f 3d at 237]. identification is particularly important when, as here, there are multiple charter agreements between the same parties simultaneously. in this case, the date of the charterparty was not included in the bills of lading. in fact, the bills contained no reference whatsoever to the relevant, april 28, 2000, charterparty, and [defendants] were provided no effective notice of the charterparty's terms. under the circumstances, we cannot say that there was a successful incorporation of that document's terms.’ incorporation of charterparty arbitration clauses in bills of lading 178 charterparty or other contract that they so described.”30 furthermore, the circumstances of the case were such that the court was able to identify with reasonable certainty which among three possible charterparty agreements which the shipowners had entered into was being referred to.31 circumstances may well arise where the charterparty which it is sought to incorporate is not identifiable despite the court’s best efforts. nevertheless, the the vinson does emphasise the courts’ general willingness to apply incorporation clauses in bills of lading. in doing so, they appear to take into account the practical context within which the mercantile community operates – scrupulously filling in blanks in standard forms may not be viewed as an essential part of business, but the use of a standard form containing a charterparty incorporation clause is considered a clear indication of the parties’ intention to incorporate charterparty terms. following the vinson, a dispute concerning a bill of lading incorporating a charterparty arbitration clause was resolved in an arbitral award published in the august 2nd 2006 issue of the lloyds maritime law newsletter (lmln).32 the dispute concerned a cargo of bagged rice carried under bills of lading which incorporated an identified charterparty, including the law and arbitration clause, which in turn provided for english law to apply and for “any dispute arising out of this charterparty” to be referred to arbitration in london. the cargo receivers “initiated proceedings in the federal high court of nigeria, claiming damages for alleged loss of and/or damage to their cargo. subsequently they agreed to a stay of those proceedings, and advanced their claims by way of counterclaim in the arbitration. the owners said that the nigerian proceedings had been issued and pursued in breach of the charter arbitration clause incorporated into the bills of lading, and that in consequence the owners suffered loss in the shape of lawyers’ fees and disbursements. . . . the receivers said that their claims could not be readily referred to arbitration under the charter since they were not party to the charter. they maintained 30 (2005) 677 lmln 1. a standard form was also used in the san nicholas [1976] 1 lloyds rep 8 (n 26). 31 this was true also of the san nicholas [1976] 1 lloyds rep 8 (n 26), where the shipowner was party only to the head charter, leading the court to conclude that this was the one being incorporated. 32 london arbitration 11/06, (2006) 697 lmln (otherwise unreported). the london maritime arbitrators association (lmaa) does not itself publish the awards made by lmaa arbitrators. however, arbitrators occasionally send copies of awards which they think may be of interest (excluding information regarding the parties’ identities and other sensitive details), to the editor of the lloyds maritime law newsletter. publication is usually in an edited form. no further details regarding this particular award were publicly available. the denning law journal 179 that because their claims arose specifically under the bills of lading, they were thus properly the subject of court proceedings.” the arbitrators held that the owners’ claim for damages for breach of the arbitration agreement was well founded. the incorporation into the bills of lading of the charterparty arbitration clause could not have been clearer and it did not matter that they were not a party to the charter. they were party to the bills of lading contracts which clearly incorporated the charterparty arbitration clause. this award is particularly important since it seems to confirm that it is the wording of the incorporation clause and not the wording of the charterparty arbitration clause that is central to the issue. unfortunately the published award does not specify whether the congenbill form was being used. neither does it contain the exact wording of the clause in the bill of lading which purported to incorporate the terms of the charterparty, including the arbitration clause. the lmln report does specify, however, that the incorporation clause in question specifically mentioned the charterparty arbitration clause. it appears to have done so in much the same way as the congenbill incorporation clause does. one can certainly conclude, from the published details, that if the incorporation clause in the bill of lading is clearly drafted, such that any potential transferee can tell just by looking at the bill of lading’s terms that any disputes in connection with it must be referred to arbitration, no uncertainties should arise as to whether the incorporation was valid. comments and conclusions from the above discussion, the conclusion may safely be drawn that in spite of the decision in the merak, the better view is that specific mention must be made of the arbitration clause in the incorporation clause in the bill of lading in order for it to be validly incorporated therein, and that general words of incorporation are not sufficient to incorporate it. this would seem to be confirmed also by recent developments in the area of harmonisation of the law of carriage of goods. in its draft convention on the carriage of goods [wholly or partly] [by sea], the current draft of which is contained in document a/cn.9/wg.iii/wp.56, the united nations commission on international trade law (uncitral) requires specific reference to the charterparty arbitration clause in order for incorporation to take place. draft article 83 provides as follows: “if a negotiable transport document or a negotiable transport record has been issued the arbitration clause or agreement must be contained in the document or record or expressly incorporated therein by reference. when a charterparty incorporation of charterparty arbitration clauses in bills of lading 180 contains a provision that disputes arising thereunder must be referred to arbitration and a negotiable transport document or a negotiable electronic transport record issued pursuant to the charterparty does not contain a special annotation providing that such provision is binding upon the holder,33 the carrier may not invoke such provision as against a holder having acquired the negotiable transport document or negotiable electronic transport record in good faith.” uncitral was set up by the united nations general assembly to further the progressive harmonization and unification of the law of international trade.34 the contents of its instruments can be considered to be a good indication of international consensus regarding issues of international trade law. it is submitted that not only does the position taken in draft article 83 reflect the current state of english law, discussed above, but also makes practical sense, as explicit reference to the charterparty arbitration clause in the bill of lading incorporation clause is essential for ensuring that at the time of accepting the documents, transferees of the bill of lading are aware that they may have to settle any dispute arising in connection with the carriage contract it contains through arbitration. following the decision in the vinson, it may also be concluded that, under english law it is not essential that the charterparty whose arbitration clause it is sought to incorporate be identified in the bill of lading, for valid incorporation to take place. while, for the purposes of certainty, it is still advisable to identify the charterparty being referred to in the bill of lading, the english courts are likely to consider the use of a standard bill of lading form containing an incorporation clause, such as the congenbill, as a clear indication of the parties’ intention to incorporate charterparty terms into the bill of lading, even if the charterparty in question is not identified. 33 emphasis added. 34 see general assembly resolution 2205 (xxi) of 17 december 1966. 87 denning law journal 2020 vol 32 p 87-149 legal education and the reproduction of hierarchy: a contemporary asian reading of a seminal text dr andra le roux-kemp* abstract law schools are peculiar places occupied by, dependent on, associated with, and exerting influence on a myriad of institutions and stakeholders. from law students’ efforts at mastering the allusive skill of legal reasoning to the challenges both tenured and untenured academic staff face in the neoliberalist higher education model where the legal profession and the consumers of the law school product exert increasing – and sometimes even impossible – demands, law schools and its populace have always been contested, hierarchical and image-conscious spaces. indeed, as ralph shain noted in the journal of ideology in 2012, “[a]nyone who has suffered through law school would be grateful to have a good polemic against the institution”. this article offers such a polemic against legal education in the hong kong special administrative region. over a period of four years, a selection of postgraduate law students from one of the (three) higher education institutions responsible for legal education and training in hong kong were asked to reflect upon their legal studies and future roles as legal professionals with reference to the 1983 self-published pamphlet by duncan kennedy, entitled “legal education and the reproduction of hierarchy: a polemic against the system”. kennedy’s essay offered a critical analysis of the role of legal education in american social life at that time, and the manner in which it reproduced hierarchy in law, legal education, the legal profession, as well as in society generally. the narratives informing this article show that almost 40 years subsequent the publication of kennedy’s text, and in a jurisdiction with an altogether different social context and facing its own political turmoil and civil rights’ aspirations, many parallels can be drawn with what kennedy had observed in 1983. part i of this article sets the scene with a detailed overview of the legal education and training landscape of the hong kong special administrative region from a legal-historical perspective to date. the discussion and analysis * associate professor in law, lincoln law school, university of lincoln (united kingdom); member of the international centre for higher education management (ichem), university of bath (united kingdom). e-mail: alerouxkemp@lincoln.ac.uk 88 legal education and the reproduction of hierarchy: a contemporary asian reading of a seminal text then turn to the narratives of hong kong law students, offering a window into their experiences as (unintended) participants in the hierarchies of law and legal education in hong kong. much more, however, can be gleaned from these narratives than just how these students perceive their present legal studies and future roles as legal professionals in the hong kong special administrative region. these narratives also offer a critical reflection on hong kong’s colonial past and present status as a special administrative region of the people’s republic of china under the principle of “one country two systems” (part ii). culture-specific values impacting on these students’ legal studies and career decisions are revealed (part iii), and troublesome shortcomings in the current legal education and training landscape vis-à-vis the legal professional fraternity and political and socio-economic reality of hong kong are laid bare (part iv). much like kennedy’s 1983 essay failed to bring about any real change in how law schools go about their business as cogs in the apparatus of social hierarchy, the narratives informing this article also conclude on a rather sombre and futile note. be that as it may. at least their voices have been heard and the seemingly inescapable power struggles noted. this too is an important function of the law and legal discourse. key words: legal education, legal profession, hong kong special administrative region, critical legal studies, duncan kennedy, hierarchy, narrative methodology. i. introduction in 1983, duncan kennedy – professor of jurisprudence at harvard law school – self-published a pamphlet entitled “legal education and the reproduction of hierarchy: a polemic against the system”.1 the preface to kennedy’s essay summarised his resolve in penning down this piece and is quoted in full here: this is an essay about the role of legal education in american social life. it is a description of the ways in which legal education contributes to the reproduction of illegitimate hierarchy in the bar and in society. and it suggests ways in which left students and teachers who are determined not to let law school demobilize them can make the experience part of a left activist practice of social transformation. the general thesis is that law schools are intensely political places, in spite of the fact that they seem intellectually unpretentious, barren of theoretical ambition or practical vision of what social life might be. the trade school 1 duncan kennedy, legal education and the reproduction of hierarchy: a polemic against the system (new york university press 2004) 1. the denning law journal 89 mentality, the endless attention to trees at the expense of forests, the alternating grimness and chumminess of focus on the limited task at hand, all these are only a part of what is going on. the other part is ideological training for willing service in the hierarchies of the corporate welfare state. to say that law school is ideological is to say that what teachers teach along with basic skills is wrong, is nonsense about what law is and how it works. it is to say that the message about the nature of legal competence, and its distribution among students, is wrong, is nonsense. it is to say that the ideas about the possibilities of life as a lawyer that students pick up from legal education are wrong, are nonsense. but all this is nonsense with a tilt, it is biased and motivated rather than random error. what it says is that it is natural, efficient and fair for law firms, the bar as a whole, and the society the bar services to be organised in their actual patterns of hierarchy and domination. because most students believe what they are told, explicitly and implicitly, about the world they are entering, they behave in ways that fulfil the prophecies the system makes about them and about that world. this is the link-back that completes the system: students do more than accept the way things are, and ideology does more than damp opposition. students act affirmatively within the channels cut for them, cutting them deeper, giving the whole a patina of consent, and weaving complicity into everyone’s story. resist!2 written at a time of acute civil rights consciousness in the united states of america, and as one of the first and seminal texts in the rise of the critical legal studies movement,3 kennedy’s essay offered a critical analysis of the role of legal education in american social life and the manner in which it reproduced hierarchy in law, legal education, the legal profession, as well as in society generally. of this hierarchy peter gabel said: “duncan’s book is not mainly about law school but about the reproduction of hierarchy within the society as a whole, in a way that actually constitutes the society by recruiting each new generation to become 2 kennedy (n 1) 15–16. 3 of the critical legal studies movement mda freeman explains as follows: “critical legal studies (cls) burst on the scene in the united states in the late 1970s with a series of conferences. it grew out of a dissatisfaction with current legal scholarship. it was more a ferment than a movement with those who identified as ‘crits’ a diverse group perhaps united only by their commitment to a more egalitarian society. off-shoots are critical feminist jurisprudence, critical race theory, the lat-crit movement and other examples of outsider jurisprudence, such as ‘queer jurisprudence’ ” in mda freeman, lloyd’s introduction to jurisprudence (9th edition sweet & maxwell thomson reuters 2014) 1017. 90 legal education and the reproduction of hierarchy: a contemporary asian reading of a seminal text passive actors, role-players, in relationship to a self-legitimating set of ideas and patterns of deference and authority.”4 kennedy described this hierarchy as illegitimate for the following reasons: taking it on its own meritocratic terms, the game is stacked in favour of white males of the middle and upper middle class, so that power and reward are not distributed according to merit as merit would be revealed in a system of equal opportunity. again, taking the system on its own merits, it is socially irrational: it is not necessary to have as many differences of capacity and role or as much inequality of power and reward as we now have, in order to achieve our social purposes. …[and], [t]he attitudes, behaviours and relationships associated with legal hierarchy constitute, in themselves, a social perversion.5 he also preferred the phrase “reproduction of hierarchy” as opposed to “perpetuation of oppression” as it conveyed “the notion that the system is disintegrated, although not utterly chaotic”. kennedy explained: [a]n organic metaphor – the system is there because it is reborn piecemeal in each generation, rather than being a conceptually graspable something that outsiders (capital, the ruling class, the state) impose and maintain. if you want to explain the status quo, you have to go into the details of how people, new people in each generation, learn to be little white middle class males, teenaged black welfare mothers living in public housing projects, and so forth. there’s more to it than the state, or one’s relation to the means of production…6 kennedy’s hypothesis of how legal education feeds the hierarchy of the system is set out in his introduction to chapter two of the pamphlet, which is entitled “the ideological content of legal education”. one can distinguish in a rough way between two aspects of legal education as a reproducer of hierarchy. a lot of what happens is the inculcation through the formal curriculum and the classroom experience of a set of political attitudes toward the economy and society in general, toward law, and toward the possibilities of life in the profession. these have a general ideological 4 peter gabel, “the spiritual foundation of attachment to hierarchy”, in kennedy (n 1) 157–158. 5 kennedy (n 1) 94–95. 6 kennedy (n 1) 95. the denning law journal 91 significance, and they have an impact on the lives even of law students who never practice law. then there is a complicated set of institutional practices that orient students to willing participation in the specialized hierarchical roles of lawyers. in order to understand these, one must have at least a rough conception of what the world of practice is like.7 he further explained as follows in the introduction to his chapter three, which is entitled “hierarchies of the legal profession”: throughout their legal education, students are engaged in reconceiving themselves and the legal profession. partly this is an affair of knowledge. students find out things about the bar and about themselves that they didn’t know before, and the process has a direction – it is a process of loss, of possibilities foreclosed. knowledge of professional life renders irrelevant capacities you have but will not be allowed to use. newly discovered incapacities of the self make it impossible to play roles it was easy to fantasize as a college student.8 almost 40 years later, and in the city of hong kong, an altogether different jurisdiction with a different social context and facing its own political turmoil and civil rights’ aspirations, i asked postgraduate law students (jd, llm and phd students) enrolled for my jurisprudence course in the years 2016, 2018 and 2019 to reflect on their legal studies with reference to the duncan kennedy text. the goal of this exercise was twofold: in a society where everything happens fast, sometimes too fast even to contemplate motivations or to consider consequences or alternatives, i wanted the students, by way of a compulsory assignment, to think through their raison d’être for studying law, their current experiences as law students, and also their future role – most probably as (commercial) legal practitioners – in hong kong society. but what shared experiences or echoes of acknowledgement, if any, could 21st century hong kong law students have with a harvard law professor’s musings that predate most of their (the hong kong students’) birth? the kennedy text was conceived and ultimately published amidst a series of dramatic historical events and epochs impacting on the people of the united states of america – including the civil rights movement (1950s and 1960s), the vietnam war (1954–1975) and the cold war crisis (1947–1991). a key feature of contemporary hong kong, on the other hand, is its duality: the territory commonly 7 kennedy (n 1) 30. 8 kennedy (n 1) 49. 92 legal education and the reproduction of hierarchy: a contemporary asian reading of a seminal text known as hong kong was acquired by the british empire as a product of the first anglo-chinese war (1839–42), also known as the “opium war”.9 the legal system established in hong kong under british rule is a direct replication, or transplantation of the laws of england and wales, the contours of which have largely remained the same during the 153 years of british sovereignty over hong kong, and also to date. the political system of hong kong can be described as a negotiated truce, the product of protracted negotiations between the people’s republic of china and britain from september 1982 to 1 july 1997, when hong kong was finally retroceded to the people’s republic of china.10 in terms of the sino-british joint declaration formally signed on 19 december 1984 and ratified in may 1985,11 both powers agreed, inter alia, that hong kong be transferred from britain to the people’s republic of china on 1 july 1997, that hong kong will exist as a special administrative region of the people’s republic of china under the principle one country two systems, that it will enjoy a high degree of autonomy, except in foreign and defence affairs, that it be vested with an executive, legislative and independent judicial power, and that the common law legal system as it existed at that time in hong kong will remain unchanged.12 it was also agreed that hong kong will enjoy the free flow of capital and freely convertible currency, and that these (and other) commitments on the part of the chinese government to hong kong be pledged under a basic law for the special administrative region to be promulgated by the national people’s congress of the people’s republic of china. it was furthermore agreed that this negotiated status of the hong kong special administrative region will remain unchanged for a period of 50 years (up to 2047).13 under the one country two systems principle therefore, hong kong not only enjoys a different legal system from that of the people’s republic of china,14 but also boasts laissez-faire capitalism and is consistently rated as the freest 9 steve tsang, a modern history of hong kong (i. b. tauris & co ltd 2004) 3. 10 tsang (n 9) 18. 11 the sino-british joint declaration of beijing in “people’s republic of china-united kingdom: agreement on the future of hong kong” (1984) international legal materials vol. 23, 1366. 12 tsang (n 9) 226. 13 tsang (n 9) 226. 14 the legal system of the people’s republic of china is of the civil law tradition and can be described as an amalgamation of laws from countries with civil legal systems, notably the bundesrepublic deutschland, as well as the culmination of centuries of legal reform and development of a socialist legal system with chinese characteristics. see generally albert hung-yee chen, an introduction to the legal system of the people’s republic of china (4th edn lexisnexis 2011). the denning law journal 93 economy in the world.15 leo f. goodstadt described the coming about of hong kong’s distinctive economic and social status and ongoing development (which will be elaborated upon in part iv below) as follows: history makes a larger contribution to shaping day-to-day government behavior in hong kong than in most modern societies. for all its differences with british colonialism, china’s leaders recognised that hong kong had developed political and business systems essential to a flourishing capitalism environment. as a result, the economic and social policies and institutions that evolved under british rule have been entrenched in the basic law, the blueprint for post-colonial hong kong. this constitutional document also provides for the continuing dominance of the business community in public affairs. thus, hong kong is locked by chinese law into arrangements inherited from history, which makes the past a matter of immediate importance rather than academic interest.16 the hong kong special administrative region, an enigmatic metropolis, the product of a dying empire and now on the margins of an ancient and reasserting empire of kin, can therefore not be studied without noting its many binaries and dichotomies. it is the city where east meets west, where a common law legal system prevails in chinese territory alongside the chinese socialist civil law legal system, where communism meets limited democracy, and where overt capitalism stands in stark contrast to the chinese socialist and communist policies. curiously, despite these contextual, spatial and temporal differences between modern day hong kong and kennedy’s united states of america of almost 40 years ago, the hong kong law students who participated in this exercise were ad idem with kennedy that getting into a law school (in hong kong) assuredly promises a training for hierarchy and reproduces the existing hierarchies prevalent in the city’s legal system and its laws. of this, one student remarked as follows: it baffles me as to why nobody in the right position has given any thought on breaking this vicious loop. (jd student, 2018) 15 government of the hong kong special administrative region, “press release: hong kong once again regarded as freest economy in the world” (26 september 2018) <https:// www.info.gov.hk/gia/general/201809/26/p2018092600318.htm> accessed 31 march 2020. 16 leo f goodstadt, a fragile prosperity: government policy and the management of hong kong’s economic and social development hkimr working paper no. 01/2009, 1 (january 2009) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1336442& download=yes> accessed 31 march 2020. 94 legal education and the reproduction of hierarchy: a contemporary asian reading of a seminal text some of the hierarchies identified by the hong kong students were quite similar to those mentioned by duncan kennedy in his seminal 1983 text. for example, the social prestige and status associated with studying law are certainly also evident in the hong kong context. in his 1983 pamphlet kennedy remarked that studying law has a social meaning: almost everyone whose parents were not members of the professional/ technical intelligentsia seems to feel that going to law school is an advance, in terms of the family history. …it is rare for parents to actively disapprove of their children going to law school, whatever their origins. so taking this particular step has a social meaning, however much the student may reject it, and that social meaning is success.17 likewise, hong kong students also remarked upon the social prestige and status associated with studying law: it seems that most of us are not directly driven by studying law itself. we just regard legal education as a shortcut to climb up the social ladder, instead of as an end. (jd student, 2019) …law study and law-related jobs are culturally seen as professional and honorable in chinese society. in hong kong, a lawyer is often being addressed by his/her title, instead of name, such as ‘lawyer x’ (x律師) instead of ‘ms. x’ (x小姐). a highlight in occupational title gives attention to one’s respectable social status. (jd student, 2019) and many students also noted the role their parents and family members played in their decision to pursue legal studies: …i have proposed to study a postgraduate degree in life sciences specialising in stem cell research, they [mother and brother] both strongly disagreed with such pursuit of interest in the science education where there is trivial amount of perceived social or economic benefits for my career in life. it is in that sense the legal education has become a monetizing tool for my career path and a possession of elitism to achieve a higher social status in hong kong. based on my personal experience, the cultural capital of receiving a legal education would definitely direct me to become a member of the professional intelligentsia to symbolize my success at least in preserving my family’s cultural capital and perhaps to gain recognitions from my friends and the society. (jd student, 2018) 17 kennedy (n 1) 18–19. the denning law journal 95 …most parents put fame and success in front of interest to determine their children’s subject in university. if their child gets good grades in the public exam and is good at arts and language, they will definitely enrol their children to studying law, despite the real interest of the child is fashion design or education. it seems going to law school equals success and fortune in the future. it may be true for some students, however, many other students who do not adapt to the environment and stress of the law school are likely to drop out of the course or even school. (jd student, 2016) in fact, the perceived social prestige and status associated with studying law and entering the legal profession, and the potential gain this may hold for a “family’s cultural capital”, may be even more overt in the east where filial piety,18 a key virtue in chinese and other east asian cultures, amplifies the parental and familial influences and pressures on the life decisions of students. it is not unfamiliar to describe hong kong parents as ‘tiger parents’ or ‘helicopter parents’. they demand their children to learn diversely and become academically successful. most of them believe that attending medical or law schools is the only way to enter the upper echelons of society and they are proud of what they are going to be. (jd student, 2018) like duncan said, almost all parents will be proud of their children if their children can study at law school. when i was admitted by law school, my parents and relatives were very happy, they thought “lawyer” is the symbol of social elite. when people know i major in law, they always make fun of me and say “you must be rich in the future”. once law students enter into law school, we are tagged as “middle class” people. after law students graduated, the students from top law school will gain better opportunity to work for the top law firm and earn more money. (jd student, 2018) hong kong as being a part of the asian society roots heavily in elitism. surely the west does as well, but with a smaller degree. studying law is so legitimate that no relatives will dare to challenge. but how about studying sociology? the perception that lawyers fight for justice mystifies them. justice goes beyond fair trial and evidential rule. justice that can be summarized into written rules is minimal – it is a lesser evil that few is better than none. in 18 the confucian idea of filial piety “is constructed on the simple fact that one’s body exists solely because of one’s parents” or put differently, that “individuals’ lives are the continuation of their parents’ physical lives”. see generally, kwang-kuo hwang “filial piety and loyalty: two types of social identification in confucianism” (1999) 2 asian journal of social psychology 163–183, 169. 96 legal education and the reproduction of hierarchy: a contemporary asian reading of a seminal text scraps of justice, barrister is found. yet, solicitor in fact does little with justice. after all, billable hours speak. (jd student, 2018) other factors contributing to the distinct social meaning that attach to the study and practice of law in modern-day hong kong, and compared with the mid-1900s united states of america described by kennedy, include the impact of hong kong’s extreme capitalist ideology on law and legal practice, which places the interests of business and economic progress above all, even above that of social development and rudimentary social justice. this was described by a hong kong student as follows: as a city largely depends on its financial industry, hong kong offers limited career choices, giving rise to internal hierarchy among them [the students] mainly based on their closeness to the financial industry. in this way, legal profession in hong kong, especially law firms practicing commercial law, enjoys a socially constructed high status. it is in this social environment that legal education in hong kong works to reproduce the hierarchy through students and professors. (jd student, 2019) (the impact of this “business comes first” attitude on the legal curriculum of hong kong law degrees and the future career paths of its law students will be elaborated upon further in part iv of this article.) in addition, the inherent dichotomy posed by the one country two systems principle also contributes to a heightened sense of importance being attached to the legal profession in hong kong. this is because the common law system in the hong kong special administrative region is often placed in juxtaposition to the civil law system of the people’s republic of china, in a manner by which hong kongese people claim superiority in terms of their legal system having the rule of law versus the absence thereof on the mainland. the concept rule of law specifically is often used by hong kongese people as a “binary and moralistic divisive tool used to separate hong kong people from that of the people’s republic of china”,19 a constitutive rhetoric or ideology, in other words, to establish or reaffirm an identity, including a legal identity, that is distinct and different from that of the “other” chinese and the people’s republic of china.20 19 andra le roux-kemp, “a legal-historical chronicle of rule-of-law narratives in hong kong” in joshua c tate, josé reinaldo de lima lopes and andrés botero-bernal (eds), global legal history – a comparative law perspective (routledge 2018) 158, 169. 20 see generally, le roux-kemp (n 19) 158–175. the denning law journal 97 hk court was blessed with an independent judicial power which power is always a symbol of superior identity. thus indirectly raised the status of judges, lawyers and the people with legal background to be more superior than the others. the protective mindset causes the exiting ‘beneficiary’ created a high barrier to entry through the education system. (jd student, 2018) these and other hierarchies in law and legal education in the hong kong special administrative region, three decades after kennedy’s seminal text and approximately 7500 nautical miles east from where kennedy penned his experiences and observations, are the focus of this article. in addition to providing an overview of the legal education and training landscape of the hong kong special administrative region, as well as its legal profession (part ii), this article allows for the voices of law students to speak about their experiences as (unintended) participants in the hierarchies of law and legal education in hong kong (part iii). the narratives of hong kong law students in this article lay bare the existence and acute reality of hierarchy in law and legal education in contemporary hong kong. these hierarchies are, like much of life in hong kong today, remnant of hong kong’s colonial history, paused in time and space by the negotiated truce of the one country two systems principle (until 2047), and reproduced – as if on a loop – to make for a particularly intense experience. in recognising this, many law students voiced a sense of futility in trying to escape from the structural violence of hierarchy in law and legal practice in hong kong: if there is any fact about legal education in hong kong, reproduction of hierarchy would be one. …the reproduction of hierarchy in law school is a typical hong kong phenomenon, rather than something peculiar to law or even to the professions, and the other institutions or the whole society strongly resemble. hong kong is a highly status-conscious society. the whole society accepts, even admires, hierarchy. more than most other places in the world, hong kong people intend to be proud of fighting for one’s good life, to despise people who failed in the process, and to respect rich people. young people come to law school for the opportunity of social mobility. therefore, unlike the u.s. where civil rights movement developed in the mid-1900s, the criticism and resist against hierarchy, in legal education or beyond it, has no shot hong kong. (llm student, 2018) in part iv of this article, the reproduction and further extension of these hierarchies in legal practice and the legal profession of hong kong will be considered, and in part v, some of the negative consequences of these hierarchies in legal education and training, legal practice and the legal profession in hong 98 legal education and the reproduction of hierarchy: a contemporary asian reading of a seminal text kong will be elaborated upon. the whole of this article is informed by the (anonymised) observations and remarks from postgraduate law students from the school of law, city university of hong kong, during the 2016, 2018 and 2019 academic years. while these observations and remarks from students are indeed limited in this sense – that is not representing the voice of all law students and of all the tertiary education institutions responsible for legal education and training in hong kong – it nonetheless remains relevant and representative of law student experiences and perceptions in the hong kong special administrative region. the primary objective of this article is to lay bare the existence and acute reality of hierarchy in law and legal education in contemporary hong kong, in the same manner in which duncan kennedy raised these (and other issues) in his selfpublished pamphlet entitled “legal education and the reproduction of hierarchy: a polemic against the system” in 1983.21 and similar to kennedy’s text having been conceived and published amidst a series of dramatic historical events and epochs impacting on the people of the united states of america at that time, this article is also conceived with due regard to the ongoing concerns for human rights and basic freedoms in the hong kong special administrative region. the institutions and stakeholders of law should, after all, acknowledge their agency and be held responsible for the lebenswelt to which they contribute. ii. a brief history and overview of legal education in the hong kong special administrative region the legal system of the hong kong special administrative region is a direct replication or transplantation of the laws of england and wales, the erstwhile colonial power of hong kong. the contours of this legal system have largely remained the same during the 153 years of british sovereignty over hong kong from 1842 to the retrocession of hong kong to the people’s republic of china on 1 july 1997. while the inherited legal system and laws of england and wales have since acquired a distinctive hong kong character by way of legal reform and development, it nonetheless mirrors many aspects of its colonial heritage, both in terms of its roots and its continued development. this is also true of legal education in hong kong. what is interesting to note with regard to the british acquisition of and presence in hong kong is that this territory was not occupied by or expanded upon by the british with a view to colonise, but rather for diplomatic, commercial and 21 kennedy (n 1) 1. the denning law journal 99 military purposes; “an imperial outpost at the edge of the chinese empire”.22 not being a settlement colony, few people in hong kong were familiar with english law.23 thus, during hong kong’s early colonial years, all legal professionals – whether in government service or private practice – were expatriates, trained in england.24 if a local hong kong resident wanted to enter the legal profession as either a barrister or a solicitor, that local resident first had to obtain the professional credentials necessary for practising as either a barrister or a solicitor in the united kingdom, before being eligible to practice law in hong kong.25 the admission requirements for practising law as either a barrister or a solicitor in the united kingdom at that time (late nineteenth to mid-20th century) essentially entailed the following (although it must be noted that there was much flux during this period due to legal reform efforts aimed at legal education and the regulation of the professions): aspiring barristers had to secure a two-year apprenticeship (called pupillage) with an existing barrister at one of the four inns (lincoln’s, gray’s, inner temple or middle temple), complete a prescribed service term which involved various collegiate activities and vocational training, and pass a compulsory bar examination administered by their inn. the bar examination consisted of two parts; aspiring barristers who had graduated with a university degree – usually a degree in law or classics from oxford or cambridge university – were exempted from part i of the examination, while all intending barristers ultimately had to sit for and pass part ii of the examination.26 aspiring solicitors, on the other hand, had to secure a five-year apprenticeship (called articles) if they did not hold a university degree, and a three-year apprenticeship (articles) if they held a university law degree.27 in addition to a one-year full-time or two-year parttime legal studies course with qualifying examinations for those who did not hold 22 tsang (n 9) 20 and 26. 23 johannes chan, “the law society’s power to introduce a common entrance examination” (2018) 48(1) hong kong law journal 1, 2. 24 luke marsh and michael ramsden, “developments in hong kong legal education” (2016) 3(2) asian journal of legal education 144, 146; standing committee on legal education and training “comprehensive review of legal education and training in hong kong: final report of the consultants” (april 2018) 14 <https://www.info.gov.hk/ gia/general/201809/26/p2018092600318.htm> accessed 31 march 2020. 25 marsh and ramsden (n 24) 146. 26 richard abel, the legal profession in england and wales (basil blackwell 1988) 24–64; for the present admission requirements to practice law as a barrister in the united kingdom see <https://www.barcouncil.org.uk/> accessed 31 march 2020. 27 in 1963 the period was reduced from five years to four years for school leavers and from three years to two years for university graduates and other mature candidates with extensive work experience. abel (n 26) 149. 100 legal education and the reproduction of hierarchy: a contemporary asian reading of a seminal text a law degree specifically or any degree at all, and which constituted part i of the law society’s final examinations, all aspiring solicitors also had to sit for and pass an intermediate examination (part ii), and complete such professional skills and other courses as the law society prescribed during the course of their training contracts (articles).28 it is evident, therefore, given the requisite protracted periods of study and training in the united kingdom, that the career path of legal professional was realistically only available to local hong kong families of wealth.29 yet, as the colonial territory of hong kong transformed from “…a group of sleepy fishing villages into a crossroads of international trade”,30 systems and institutions necessary to maintain its growth and development were established.31 the rapidly growing economy ultimately demanded legal professionals “trained for practice in hong kong and, specifically, for hong kong”.32 this became all the more necessary with the establishment of the hong kong supreme court in 1843, and the promulgation of the admission of practitioners in supreme court ordinance no. 13 of 1856. this legislation was introduced to provide, inter alia, for the admission of legal practitioners to the hong kong supreme court. of the admission requirements to practice law in hong kong in terms of this legislation, johannes chan noted that it was “rather loose”: apart from attorney, solicitors and proctors who were admitted in any of her majesty’s colonies, any person who had served [for a period of three years] as a registrar, clerk of the supreme court or a judge, interpreter of the court, clerk of the attorney general, a clerk of the peace or an articled clerk would be eligible for admission, subject to an examination of their fitness to be admitted. the power of admission, as well as the power to remove and strike off from the roll of attorney, solicitor, proctor or interpreter, was vested in the supreme court.33 28 abel (n 26) 139–168, particularly 142; for the present admission requirements to practice law as a solicitor in the united kingdom see <https://www.lawsociety.org.uk/lawcareers/becoming-a-solicitor/qualifying-as-a-solicitor/> accessed 31 march 2020. 29 marsh and ramsden (n 24) 146. 30 marsh and ramsden (n 24) 146, quoting from hong kong tourism board, history <http://www.discoverhongkong.com/eng/plan-your-trip/traveller-info/about-hong-kong/ history.jsp> accessed 31 march 2020. 31 marsh and ramsden (n 24) 146. 32 marsh and ramsden (n 24) 146. 33 chan (n 23) 2; see also the admission of practitioners in supreme court ordinance no. 13 of 1856 and the subsequent legal practitioners ordinances no. 1 of 1871. the denning law journal 101 thus, to practice law in hong kong in these early colonial years of the territory and subsequent the promulgation of the admission of practitioners in supreme court ordinance no. 13 of 1856, the formal english route for acquiring the requisite professional credentials remained, whilst an alternative route was created for certain categories of civil servants or articled clerks who had served for a period of three years in hong kong. for both those qualified in the united kingdom as well as those who now met the hong kong service requirement as set out above, a local examination was introduced, focussing on the fitness of the eligible candidates; “their character, conduct, learning, and length and assiduity of service, and their other credentials, and conforming themselves so far as may be practicable to the regulations by which the examinations of candidates for admission to practice as attornies [sic] and solicitors of the courts of westminister are governed and directed”.34 in terms of tertiary education in hong kong, the foundation stone for the first university – the university of hong kong – was laid by sir frederick lugard on 16 march 1910, and on 11 march 1912 the university was officially opened.35 at its founding, the university of hong kong “viewed itself as having a wider role in relation to china’s modernisation, hoping to offer students coming from china a ‘liberal, secular, western education which would, inter alia, fit them for careers in the imperial civil service’ ”.36 with no intention to “enter the business of legal education for intended practitioners in hong kong”, arts, engineering and medicine became this university’s first faculties.37 yet, by the early 1960s, “leading figures in hong kong’s society – most prominently, vice chancellor sir lindsay ride of the university of hong kong (hku) and president p.a.l. vine of the law society of hong kong – increasingly voiced their support for a local law curriculum”.38 this was largely due to the “growing dissatisfaction with the expense and inefficiency of the existing methods of legal qualification, shipping the best and brightest away to learn how to practice law in a jurisdiction markedly different from hong kong”.39 moreover, the promulgation of an extensively 34 section 3 of the admission of practitioners in supreme court ordinance no. 13 of 1856; also see the legal practitioners ordinance no 1 of 1871. 35 university of hong kong, the early years <https://www.hku.hk/about/universityhistory/the-early-years.html> accessed 31 march 2020. 36 marsh and ramsden (n 24) 146. 37 marsh and ramsden (n 24) 146; university of hong kong (n 35). 38 marsh and ramsden (n 24) 146–147; standing committee on legal education and training (n 24) 15. 39 marsh and ramsden (n 24) 147. 102 legal education and the reproduction of hierarchy: a contemporary asian reading of a seminal text revised and amended legal practitioners ordinance cap 159 of 1964 afforded more powers to the professional regulatory bodies for solicitors and barristers which had, by that time, already been established for legal practitioners in hong kong.40 the “hongkong law society” (since 1969 known as the law society of hong kong) was established on 8 july 1907, as a company limited by guarantee, and was first noted in the 1923 version of the legal practitioners ordinance no. 1 of 1871.41 today, the law society of hong kong is responsible, by virtue of the hong kong legal practitioners ordinance cap 159, for, inter alia, the regulation and administration of matters such as admissions to practise as a solicitor in hong kong, the issuing of practising certificates, overseeing compliance with the practising rules, and it also has extensive disciplinary powers over the practising profession in the event of failure to comply with the relevant rules.42 the bar association of hong kong, in turn, was established in 1949, and as is the case with the law society, the bar association administers the process of dealing with applications for admission, collection of fees, issuance of practising certificates and also acts as a disciplinary tribunal when required.43 in the same year the revised and amended legal practitioners ordinance cap 159 of 1964 was promulgated (i.e. 1964), the department of extra-mural studies at the university of hong kong began offering evening courses for the university of london’s external llb degree, allowing successful students to be exempted from part 1 of the english professional examinations, and thereby “providing the 40 for example, in terms of the legal practitioners ordinance cap 159 of 1964, the powers of the chief justice of the hong kong supreme court to regulate the practice of law and legal professionals in hong kong were partially transferred to the committee of the law society (later renamed as the council of the law society). while the powers to make rules regarding the admission of solicitors and barristers and the registration of notaries public, practicing certificates, fees and documents and rules relating to disciplinary proceedings against barristers remained vested with the chief justice, the law society became endowed with rule-making capabilities relating to a variety of matters concerning solicitors, their qualification and their practice. such rules made by the committee of the law society, however, remained subject to the approval of the chief justice. a cost committee of the law society was furthermore empowered to make rules prescribing the remuneration payable to a solicitor in respect of his or her non-contentious practice as defined in the provisions of the ordinance. chan (n 23) 2–3. 41 section 1 of the legal practitioners ordinance no. 1 of 1871; standing committee on legal education and training (n 24) 19. 42 standing committee on legal education and training (n 24) 19. 43 standing committee on legal education and training (n 24) 19–20. the denning law journal 103 privileges of a uk law degree at greatly reduced expense”.44 although a significant intermediate step, this hong kong external llb degree remained a temporary solution to the lack of a local legal education, the programme’s ability to secure the necessary resources, including faculty staff, remained limited, and while graduates of the external degree wishing to qualify as solicitors could ultimately meet the requirements for admission to practice in hong kong by passing part ii of the examination hosted by the hong kong law society, those seeking admission as barristers still needed to travel to england to acquire the necessary professional credentials and sit for the final bar examination.45 moreover, the external llb degree remained a law qualification designed to meet english needs, and not the unique needs and conditions of hong kong.46 as a consequence, the then chief justice sir michael hogan appointed the first working party on legal education in 1966, to consider possible long-term solutions to the question of a local legal education in hong kong.47 the first working party – chaired by the senior puisne judge and including representatives from the attorney-general, the hong kong bar association, the law society of hong kong, the university of hong kong and the chinese university of hong, the latter institution which was established in 1963 – issued its report and recommendations in june 1967.48 principal among its findings was “the introduction in hong kong of a system of teaching and training in legal subjects, which would enable candidates to qualify for admission, whether as a barrister or a solicitor, entitled to practice in hong kong without the necessity of proceeding overseas in order to obtain any further qualification”.49 in addition to addressing the burden and expense of the overseas legal qualifications, the first working party also recommended the elimination of subjects of english law not relevant to hong kong, whilst creating the flexibility to include subjects of more practical 44 also see rule 14 of the hong kong students rule 1964, made pursuant to section 73 of the legal practitioners ordinance and which set out the qualifications required for admission, namely that the candidate (1) had served the requisite articled clerkship and (2) had either passed or been exempted from part 1 of the overseas qualifying examination set by the english law society and had passed part ii of the same examination. marsh and ramsden (n 24) 147; chan (n 23) 3. 45 marsh and ramsden (n 24) 147; standing committee on legal education and training (n 24) 15. 46 marsh and ramsden (n 24) 147. 47 marsh and ramsden (n 24) 147. 48 marsh and ramsden (n 24) 147; standing committee on legal education and training (n 24) 16. 49 marsh and ramsden (n 24) 147; standing committee on legal education and training (n 24) 16. 104 legal education and the reproduction of hierarchy: a contemporary asian reading of a seminal text importance in the hong kong context, such as chinese customary law.50 courses, it was submitted, “ ‘…designed to qualify a man to practice law in hong kong must also educate him in hong kong practice’ ”.51 embracing the recommendations of the first working party, the university of hong kong established a department of law and developed an honours degree in law, better suited for meeting the needs of the local legal community.52 in 1968, the university grants committee (ugc) – the administrative body coordinating government funding to higher education institutions in hong kong – approved the proposed full-time, three-year llb degree programme and law curriculum of the university of hong kong, and in 1969 the first llb students were enrolled for local legal education and training.53 what remained unaddressed, however, was the question of local examinations and practical training for admission to practice as either a solicitor or a barrister in hong kong, as well as whether the local honours degree in law were to be reciprocally recognised by the law society of england as a valid qualification to practice law in the united kingdom.54 a second working party was subsequently established in 1969 to consider these matters.55 the question of reciprocity was answered quickly, with the law society of england agreeing to recognise the three-year llb degree programme offered by the department of law of the university of hong kong.56 with regard to the issue of local examinations and practical training for admission to practice as either a solicitor or a barrister in hong kong, the second working party noted that “it was essential that law graduates receive a period of additional education and training after receiving their llb, before becoming eligible to practice as a full-fledged member of the legal profession”.57 a postgraduate certificate in laws (pcll), a one-year full-time course providing professional legal training, and matching the 50 marsh and ramsden (n 24) 147; standing committee on legal education and training (n 24) 16. 51 marsh and ramsden (n 24) 147; standing committee on legal education and training (n 24) 16. 52 marsh and ramsden (n 24) 148. 53 marsh and ramsden (n 24) 148; r redmond and c roper, (steering committee on the review of legal education and training in hong kong) “legal education and training in hong kong: preliminary review – report of the consultants” (august 2001) 24 <http:// www.hklawsoc.org.hk/pub_e/news/societyupdates/20010813a.asp> accessed 31 march 2020. 54 marsh and ramsden (n 24) 148. 55 marsh and ramsden (n 24) 148. 56 marsh and ramsden (n 24) 148; standing committee on legal education and training (n 24) 17. 57 marsh and ramsden (n 24) 149. the denning law journal 105 rigour of the bar final examination of the english bar, was subsequently developed and inaugurated in 1972, in the department of law of the university of hong kong, rather than a separate body controlled by the legal profession.58 this development was (and is) markedly different from the position in england and wales where the english law society’s final examination (part ii) was replaced in 1993 with the one-year professional education programme – the legal practice course (lpc) – for admission to practice law as a solicitor in england and wales, and the erstwhile bar final examination (part ii) of the english bar association was replaced with the one-year professional education programme – the bar vocational course (bvc), now bar professional training course (bptc) – in 1989.59 in hong kong, the pcll was and remains to date the only requisite (one-year) professional education programme for candidates to proceed to pupillage or clerkship as the final step towards admission as either a barrister or a solicitor in hong kong. the pcll is administered and offered by the universities, with substantive input and oversight by the professions.60 while local legal education and training was therefore firmly established and provided for by the turn of the century, preparations were underway, in terms of the sino-british joint declaration (1984), for hong kong to be retroceded to the people’s republic of china as a special administrative region under the one country two systems principle. legal education in hong kong thus entered a new era of development in preparing students to practice law in post-handover hong kong, and the government was primarily concerned about supply: from the perspective of commerce, a scarce supply of barristers and solicitors in private practice could have a substantial negative impact on hong kong’s ability to sustain and expand its status as a finance centre. from a public law perspective, the government and judiciary still relied heavily on expatriate 58 marsh and ramsden (n 24) 149; also see stephen nathanson, wilson ws chow and felix wh chan “the university of hong kong’s new pcll” (2002) 32(2) hong kong law journal 381–400. 59 the bar vocational course is now referred to as the bar professional training course (bptc) and the pupillage period previously described in this article has since been reduced to a one-year term. andrew boon and julian webb, “legal education and training in england and wales: back to the future?” (march 2008) 58(1) journal of legal education 79, 81; mary c. szto, “towards a global bar: a look at china, germany, england, and the united states” (2004) 14(3) indiana international and comparative law review 585, 599. 60 marsh and ramsden (n 24) 149; chan (n 23) 3. for admission to practice law as a solicitor, candidates must also pass an additional examination in accounts set by the hong kong law society. 106 legal education and the reproduction of hierarchy: a contemporary asian reading of a seminal text legal expertise and feared an exodus in the legal profession as 1997 approached. from an equality perspective, the low lawyer-to-population ration – about 34 lawyers per 100,000 residents (0.03 per cent) – was complicating the principle of equal protection, inflating the cost of private sector legal services beyond the means of a majority of the population. lastly, from an education perspective, there was a need to attract legal talent to the field of teaching and research, in order to educate successive generations of the legal profession.61 to address these concerns, the department of law of the university of hong kong not only increased its quotas for admission to the llb and pcll programmes (1987), but hong kong’s newest tertiary institution at that time, the city polytechnic of hong kong established in 1984 and rebranded in 1994 as the city university of hong kong, was granted permission by the university and polytechnic grants commission (upgc, formerly the university grants council (ugc)), to establish a department of law (1987), to develop another three-year llb degree programme, and to enrol its first llb students in the 1988 academic year.62 the establishment of a second law curriculum at another hong kong tertiary education institution was ultimately viewed as the only viable option for meeting the immediate and future needs of the local legal profession and ensuring the continued existence and development of the common law legal system that had been transplanted to, and was to remain in, the territory under the one country to systems principle. this addition and development seemingly achieved the desired result, and the legal system of and legal education and practice in hong kong subsequently developed in its own right. the law curriculum originally developed by the department of law of the university of hong kong comprised mandatory law subjects undertaken in the first two years of study, with the final year mostly open for students to choose elective courses. in the first year, students were introduced to the legal system in hong kong, legal method and reasoning, as well as the law of contract, the law of property and constitutional law. the second year consisted of additional core courses, including criminal law, the law of evidence, tort and additional coursework in the law of property, as well as requiring students to write a dissertation on a legal topic of their choice. during their final year, students enrolled in one compulsory course – jurisprudence – as well as four optional 61 marsh and ramsden (n 24) 150. 62 marsh and ramsden (n 24) 150; standing committee on legal education and training (n 24) 17; redmond and roper (n 53) 24. the denning law journal 107 subjects, choices of which included administration of trusts and estates, mercantile law, business association, family law and conflict of law. in addition to coursework and dissertation requirements, students were required to participate in a moot programme, intended to better prepare them for the rigours of oral argument in a court of law.63 the law curriculum developed by the department of law of the city polytechnic of hong kong – later city university of hong kong – was aimed at promoting an understanding of the law that fits into the society which it serves. to this end, the curriculum required: 1. a strong core of traditional common law subjects, with a focus on those areas of law most relevant to hong kong’s future needs in both the public and private spheres; 2. substantial attention on the prc’s legal system, as it was hong kong’s future sovereign; 3. consideration of the problems of operating a bilingual legal system, and how to reconcile those problems in such a way as not to compromise hong kong’s common law tradition; 4. awareness for the importance of developing practical legal skills in tandem with legal knowledge.64 these original local hong kong law curricula were further extended in the 2004/5 academic year, based on the recommendations put forward in the so-called redmond-roper report.65 the redmond-roper report came about as part of the first comprehensive and independent review of legal education and training in hong kong, launched in november 1999, on recommendation of the advisory committee on legal education and its ad hoc advisory steering committee on the review of legal education and training in hong kong established specifically for this purpose.66 as a first stage to this comprehensive review process, a consultancy comprising two independent overseas education specialists, paul redmond, the dean of the faculty of law at the university of new south wales, australia, and christopher roper, the inaugural director of the centre for legal education, 63 marsh and ramsden (n 24) 148. 64 marsh and ramsden (n 24) 150–151. 65 redmond and roper (n 53). 66 marsh and ramsden (n 24) 152; luke marsh and michael ramsden, “fostering civic engagement in legal education: observations from hong kong” (2014) 1(1) asian journal of legal education 57, 59; redmond and roper (n 53). 108 legal education and the reproduction of hierarchy: a contemporary asian reading of a seminal text australia, was tasked to assess hong kong’s legal education system. their findings were published in august 2001. the second stage of this comprehensive review entailed the further evaluation of the consultancy report and hong kong’s legal education system by the ad hoc advisory steering committee.67 a key recommendation of the redmond-roper report that was subsequently adopted was that the full-time, three-year llb degree programme (honours) and law curriculum be extended to a four-year undergraduate llb degree programme to provide for more non-law courses as part of the law curriculum, including subjects on liberal education.68 this recommendation was based on the observation by redmond and roper that the two tertiary education institutions providing legal education and training in hong kong at that time had failed “to meet the unique needs of hong kong’s society and [that there was] a need to prepare graduates to meet the challenges of hong kong’s legal system under prc sovereignty”.69 to this end, the redmond-roper report “sought to underscore the need of legal education to integrate theory with practice, contribute towards a broader liberal education and promote professional and ethical responsibility in a particular societal context”.70 in the same year that the hong kong law curriculum was extended to a four-year undergraduate llb degree (2004/5), the chinese university of hong kong announced that the university grants council (now again known by its original designation) had accepted its proposal to establish hong kong’s third law school, with the first enrolment of llb students set for the 2006/7 academic year.71 it was evident from the law curriculum proposed by this third service provider of legal education and training that the redmond-roper report had considerable influence: [the] cuhk [chinese university of hong kong] cited the importance of meeting hong kong’s growing demand of the legal expertise necessary to 67 marsh and ramsden (n 24) 152. 68 it is interesting to note that the llb degree in england and wales remains a three-year degree qualification. marsh and ramsden (n 24) 153; boon and webb (n 59) 80. 69 marsh and ramsden (n 24) 153. 70 marsh and ramsden (n 24) 153; goodstadt notes, however, that an official assumption on the part of the hong kong government took root during that time, “that universities could absorb cuts in funding without jeopardizing their ‘core activities and the quality of education’, and [that] they were expected to underwrite the costs of [sic, rather by] adding a year to their first degree programmes”. goodstadt (n 16) 22; also see hong kong education bureau, item for finance committee (fcr (2007–08)36, november 2007) <https://www.legco.gov.hk/yr07-08/english/fc/fc/papers/f07-36e.pdf> accessed 31 march 2020. 71 marsh and ramsden (n 24) 153–154; standing committee on legal education and training (n 24) 18. the denning law journal 109 maintain the city’s competitive advantage – the rule of law. it wanted to provide its law students with legal training that would help them to adapt to evolving societal circumstances; work in a variety of legal and non-legal contexts, including the business, finance, government and non-profit sectors and broaden their perspectives to incorporate a wider global awareness, with a particular focus on mainland china and greater asia.72 at present, the school of law of the city university of hong kong, the faculty of law of the chinese university of hong kong and the faculty of law of the university of hong kong, each offer a four-year full-time llb degree programme akin to the comparable basic (three-year) law degree of the united kingdom. students can enter this degree programme upon having completed the hong kong diploma of secondary education (hkdse) which is the local, final secondary school examination of the hong kong special administrative region, or, having completed a similar school leaving certificate from abroad, including the international baccalaureate (ib) or the english a-levels. in addition, the faculty of law of the university of hong kong offer four five-year mixed-degree programmes: • bachelor of business administration and law (bba (law)) & llb degree, • bachelor of social sciences in government and laws degree (bsocsc (govt & laws) & llb degree, • bachelor of engineering in civil engineering (law) (beng (cive-law) & llb degree, and • bachelor of arts and bachelor of laws (ba & llb). these mixed-degree programmes allow students to first qualify with a bachelor’s degree in a discipline other than law, and upon successful completion of this first bachelor degree that also covers some law courses, to undertake two more years of study to complete the llb degree.73 likewise, the faculty of law of the chinese university of hong kong offers a five-year mixed-degree programme, the bachelor of business administration and juris doctor programme (bba-jd).74 72 marsh and ramsden (n 24) 154; also see the chinese university of hong kong, the school of law of the chinese university of hong kong (lc paper no. cb(2)1605/0405(02), 1–2 <http://www.legco.gov.hk/yr04-05/english/panels/ajls/papers/aj0523cb2-1605 2e.pdf> accessed 31 march 2020. 73 faculty of law, university of hong kong <https://www.law.hku.hk/programmes/ overview.php> accessed 31 march 2020; marsh and ramsden (n 24) 156. 74 faculty of law, university of hong kong <http://admission.cuhk.edu.hk/programmes/ bajdn.html> accessed 31 march 2020. 110 legal education and the reproduction of hierarchy: a contemporary asian reading of a seminal text this mixed-degree programme allows students to graduate with both a bba and jd degree over a period of five years and on a structure similar to the four fiveyear mixed-degree programmes of the university of hong kong. finally, to cater for the demand for lawyers who can practice in multiple jurisdictions, the university of hong kong established a joint legal education programme with the university of british columbia (ubc) in 2009, providing for a joint llb-jd programme allowing students to complete two degrees in two jurisdictions over a period of five years.75 following suit, the faculty of law of the chinese university of hong kong launched its llb-jd programme with king’s college london in 2018, students enrolled for this programme will study at king’s college london in the first and second years of their study, and at the chinese university of hong kong for their third and fourth years of study to complete two law degrees from two jurisdictions over a period of four years.76 in addition to the mixed and double degrees and undergraduate four-year llb degree programmes, each of the three tertiary education institutions involved in legal education and training in hong kong offers a postgraduate two-year jd (juris doctor) programme; a graduate law programme for applicants holding a non-law bachelor degree or an undergraduate law degree from a non-common law jurisdiction. the first juris doctor degree was introduced by the school of law of the city university of hong kong in 2004, with the other two universities following suit; the faculty of law of the chinese university of hong kong has been offering a jd degree since its establishment in 2006, and the university of hong kong accepted its first students on a jd programme in september 2009.77 these graduate degree programmes are similar to the jd programme of the united states of america, which is the primary law degree qualification for entry into the legal profession of the various states of the united states of america. the introduction of a graduate programme in law in hong kong became necessary after the english law society’s decision not to offer part i and part ii of their overseas qualifying examinations after 1980. this decision effectively meant that aspiring solicitors with a non-law degree and unable to enrol for the four-year undergraduate llb degree no longer had any alternative avenue available for passing the academic requirement to be eligible for admission to the pcll.78 at least the introduction of the jd programme provided an alternative for non-law graduates to obtain the 75 faculty of law, university of hong kong <https://www.law.hku.hk/programmes/joint. php> accessed 31 march 2020. 76 faculty of law, university of hong kong <http://www.law.cuhk.edu.hk/en/study/llb_ jd_programme-overview.php> accessed 31 march 2020. 77 standing committee on legal education and training (n 24). 78 chan (n 23) 4–5. the denning law journal 111 necessary academic credentials. moreover, the chinese university of hong kong offers its jd programme also on a part-time basis, allowing for students to complete the programme over a period of four years.79 the postgraduate certificate in laws (pcll) remains the ultimate gateway to the hong kong legal profession. it is a one-year full-time course providing professional legal training, offered by the three tertiary education institutions responsible for legal education and training in hong kong, but with substantial input and oversight from the hong kong law society and the hong kong bar association. it is only upon completion of the pcll that candidates can proceed to pupillage or clerkship as the final step towards admission as barrister or solicitor, respectively. richard able observed as follows with regard to the impact of the comparable one-year compulsory vocational course on the english legal education system: professional education has restricted entry in two ways: by virtue of its cost and, more recently, through limitations on the number of places. …indeed, the number of places in the mandatory courses is itself becoming a limitation on entry to the profession.80 this is certainly also true of the situation in hong kong, as will be evident from the discussion below. given the nature and locality of the student observations and opinions collected for this article, its focus is exclusively on the reproduction of hierarchy in local legal education and practical training in the hong kong special administrative region. the admission requirements for qualified solicitors and barristers holding foreign formal and professional credentials and wishing to practice law in hong kong will not be considered here.81 note can, however, be taken of the pcll conversion examination which was introduced in 2008. in the 2001 79 faculty of law, chinese university of hong kong <http://www.law.cuhk.edu.hk/en/ study/jd_programme-overview.php> accessed 31 march 2020. 80 abel (n 26) 146 and 148. 81 see the overseas lawyers (qualification for admission) rules cap 159q, the foreign lawyers registration rules cap 159s and the barristers (qualification for admission and pupillage) rules cap 159ac. the matter of local solicitors or barristers respectively wanting to switch over to the other profession – that is, a solicitor wishing to be admitted as a barrister or a barrister wishing to be admitted as a solicitor also falls beyond the scope of this article. for the relevant legislative provisions in this regard see the barristers (qualification for admission and pupillage) rules cap 159ac and the trainee solicitors rules cap 159j. 112 legal education and the reproduction of hierarchy: a contemporary asian reading of a seminal text redmond-roper report, it was recommended that an additional gateway to the legal profession of hong kong be established for candidates holding an academic qualification other than those offered by the three law schools/faculties in hong kong, by way of a “conversion course” through which such candidates can then, upon successful completion, seek admission to the pcll. this recommendation was partly acceded to when the standing committee on legal education and training in hong kong82 established the pcll conversion examination in 2008, to be administered by the independent pcll conversion examination and administration limited.83 this alternative gateway to the pcll programme and ultimately also to practice law in hong kong as either a solicitor or a barrister requires of candidates to demonstrate competence in select subjects in order to qualify for pcll admission. marsh and ramsden note that the establishment of the independent pcll conversion examination and administration limited “has spawned its own subsidiary legal education market, one in which universities and commercial organisations provide preparatory courses for the exam”.84 of this alternative gateway to enter the legal profession of hong kong, one student remarked as follows: since 2008, a so-called ‘self-protective’ policy was launched stating that law graduates from other common law jurisdictions must also pass the ‘conversion examination’. there is even no exception for graduates form cambridge or oxford or other top universities from the uk. this policy ensures localization on one hand, however, it further strengthens the reproduction of hierarchy. (jd student, 2018) the legislative provisions currently regulating the admission of aspiring solicitors and barristers to the legal profession are set out in the legal practitioners ordinance cap 159 (specifically sections 3, 4 and 27), as well as the subsidiary legislation to cap 159, particularly the admission and registration rules cap 159b, trainee solicitors rules cap 159j (specifically section 7), the barristers (qualification) rules cap 159e, the barristers (admission) rules cap 159aa, barristers (advanced legal education requirement) rules cap 159ab and the 82 the standing committee on legal education and training (sclet) was established in terms of s 74a of the legal practitioners ordinance cap 159 and “is empowered to keep under review legal education and training in hong kong, to make recommendations thereon, and to collect and disseminate information about legal education and training in hong kong”. standing committee on legal education and training (n 24) 24. 83 marsh and ramsden (n 24) 154. 84 marsh and ramsden (n 24) 154. the denning law journal 113 barristers (qualification for admission and pupillage) rules cap 159ac (specifically section 4). iii. legal education in the hong kong special administrative region: reproducing and augmenting colonial hierarchies in law part ii of this article provided an overview of the legal education and training landscape of the hong kong special administrative region, as well as its legal profession, from a legal-historical perspective to date. it was evident from this overview that the legal system and laws of the hong kong special administrative region, as well as its legal education system, have been transplanted from england and wales, the erstwhile colonial power of hong kong. this colonial heritage remains palpable in hong kong, despite extensive legal reform and development since the territory’s retrocession on 1 july 1997 to the people’s republic of china. the discussion and analysis in this third part of the article now turn to the narratives of local hong kong law students, relating their experiences and perceptions about various aspects of legal education in hong kong. a. law school admission admission to the various law degrees and programmes offered by the three higher education institutions endorsed to offer legal education and training in the hong kong special administrative region is highly competitive. for admission to any of 114 legal education and the reproduction of hierarchy: a contemporary asian reading of a seminal text the undergraduate llb degrees, applicants who have completed an internationally recognised and rigorous final examination like the ib or a-levels are particularly sought after while only those with the highest results in the local hong kong diploma of secondary education (hkdse) stand a chance of being admitted.85 of this, hong kong students remarked as follows: …the hierarchy is stemmed from the earliest stage of the education system. … the hierarchy is beyond what kennedy states as it has been rooted even at the pre-school level. (jd student, 2018) in hk hierarchy even existed before you born. what hospital you born, what kindergarten and high school you went, internship etc. play a role for your future in law career. (jd student, 2016) it is understandable parents want to give birth to clever child/children. the more clever the better. as you know, the competition in hk is so fierce. if you are not clever enough, how can you survive? how can you enjoy your life with good quality? (jd student, 2016) having excellent grades and a stellar final secondary school leaving certificate are therefore imperative to gaining admission to one of the three undergraduate law programmes in hong kong. however, “being clever” is indeed not enough as it is trite that a positive correlation generally exists between socio-economic status and academic performance. middle class students, for example, usually have access to additional academic resources and support their parents and/or caregivers can afford or arrange for through their extensive networks. based on my educational experience in hong kong, parents of higher social class tend to be more educated and receive higher income. they are more resourceful in building education advantages to their children, for example, sending them to private schools, enriching their academic experience and cultivating their social network from a young age. in this way, it sharpens children’s competitive edge and builds up eye-catching academic profile in their applications to law school. …the underrepresentation of lower class students in law school …[is] further [carried] forward to legal profession. 85 the admission scores of hkdse applicants for the 2017/2018 academic year can be accessed online: city university of hong kong <http://www.cityu.edu.hk/admo/hkdse/ scores/jupas_scores2018.pdf> accessed 31 march 2020; chinese university of hong kong < http://www.cuhk.edu.hk/adm/jupas/adm_scores2018.pdf> accessed 31 march 2020; university of hong kong <https://www.hku.hk/f/upload/18637/2018%20 admissions%20score.pdf> accessed 31 march 2020. the denning law journal 115 students with no family or social networks often encounter great barriers in seeking internship and employment opportunities. the power of inherited advantage can be clearly demonstrated in my recent experience at a law firm – a 17-year-old high school student without any legal knowledge was able to secure an internship opportunity at the most reputable chamber, largely due to the elite social networks of his family. at another level, legal education acts as a collaborator in worsening social inequality – by giving more affluent students better access to prestigious jobs, and in turn, higher salaries (jd student, 2019) this much was acceded to by the faculty of law of the chinese university of hong kong in its 2015 llb annual report to the standing committee on legal education and training in hong kong:86 although there has been some concern in the media about non-jupas students being from wealthier families who can afford to send their children to international schools or overseas for their education, many local schools now offer an international curriculum such as the international baccalaureate (ib). the faculty will continue to admit students primarily on the basis of academic ability and perceived aptitude for the study of law, though we also seek to ensure students from all backgrounds have the opportunity to join us.87 while the chinese university of hong kong noted in its 2015 llb annual report that it sought to ensure that students from all backgrounds have the opportunity to study law (at the chinese university of hong kong), it remains unclear what the three tertiary education institutions involved in legal education and training in hong kong are currently doing to ensure some socio-economic diversity in its respective law student bodies. hong kong students noted, for example, that social and economic affluence (together with grades) ultimately remain the primary determinants for admission to a law degree programme in hong kong: on the face of education, people earn higher grades by talent, diligence, horizon and the way of thinking. however, in fact, those factors are mostly 86 the standing committee on legal education and training is a statutory body established in 2004 based on the recommendations made by the redmond-roper report, and it replaced the advisory committee on legal education referred to earlier in this article. marsh and ramsden (n 24) 153. 87 faculty of law, the chinese university of hong kong, report on the llb programme in the standing committee on legal education and training annual report, (2015) 25 <https://www.sclet.gov.hk/eng/pdf/2015e.pdf> accessed 31 march 2020. 116 legal education and the reproduction of hierarchy: a contemporary asian reading of a seminal text granted by their families. under the fairness mask, the hierarchy already exists on the beginning of education. (llm student, 2019) family status basically determines the future or at least, the starting point of a law student. for example, a student who comes from a relatively wealthier family can easily get internships from law firms due to connections and have much more opportunities to study overseas to get more certificates and experience. these students stand in a high standing point which they can easily foresee their success in legal career. (jd student, 2016) there is a financial cost, a cost that yells out upper-middle class, second or third generation hong kong resident, typically residing on hong kong island or in kowloon, but seldom further beyond these enclaves. yet, hard work alone is attributed to the high-achiever’s “success” in the minds of the envious. kennedy is not wrong in hypothesising that there are deep socio-economic inequalities inherent unto the word lawyer. (jd student, 2016) the impact of affluence on law school admission processes is particularly evident in the jd programmes, as this formal legal qualification is decidedly more expensive than the undergraduate llb degrees. in 2019, the tuition fees for a jd programme was approximately hk$388,080 at the city university of hong kong,88 hk$403,200 at the chinese university of hong kong89 and hk$400,000 at the university of hong kong.90 this stand in stark contrast to the four-year undergraduate llb degrees which form part of a selection of full-time bachelor degree programmes funded by the government of the hong kong special administrative region. the university grants committee (ugc) of hong kong not only coordinates government funding to the eight public tertiary education institutions in the hong kong special administrative region,91 it also coordinates the approximately 15,000 fully funded first-year-first-degree places available in 88 hk$5,390 x 72 credits <https://wikisites.cityu.edu.hk/sites/tuitionfee/prog/sf_p43. htm> accessed 31 march 2020. 89 hk$5,600 x 72 units <https://www.gs.cuhk.edu.hk/admissions/programme/law#jurisdoctor> accessed 31 march 2020. 90 faculty of law, university of hong kong <http://www.law.hku.hk/postgrad/ jurisdoctor/tuition-fee/> accessed 31 march 2020. 91 these are the city university of hong kong (cityu), hong kong baptist university (hkbu), lingnan university (lingnanu), the chinese university of hong kong (cuhk), the education university of hong kong (eduhk), the hong kong polytechnic university (polyu), the hong kong university of science and technology (hkust) and the university of hong kong (hku). university grants committee <https://www.jupas.edu. hk/en/about-jupas/introduction/> accessed 31 march 2020. the denning law journal 117 selected full-time bachelor degree programmes offered by these institutions. the three four-year full-time llb degree programmes of the city university of hong kong, the chinese university of hong kong and the university of hong kong are part of this joint university programmes admissions system (jupas) and every year secondary school leavers with qualifying hong kong diploma of secondary education (hkdse) results may apply through the jupas system for a place in one of the llb degree programmes. a student who has secured a jupas place in one of the government funded first-degree full-time bachelor’s degrees receive a full tuition waiver.92 especially for juris doctor students, the tuition itself serves as a first layer of filter. the unrealistically high cost deters individuals whose family are financially incapable of supporting them. the second filter comes into play at the start of law school, when unprivileged students begin finding themselves struggling academically and particularly in english. some individuals drop out as they realise that their locally learned language skills are not sufficient in helping them survive law school. in hong kong, people’s language skills are highly related to their social status. it is unsurprising to see that the lower social class students have almost no access to english learning, while the topic social class emerges in a bilingual environment. it all traces back to the deep rooted hierarchy within the entire education system. (jd student february 2019) for instance, city university’s own jd programme costs upwards of $388,080 (city university of hong kong, 2018) just for tuition alone, which is 23 times the individual median monthly wage ($16 800) (census and statistics department, 2017), in a city where no reliable social security exists, and one is expected to financially support his parents upon finding a job. this is compounded by the self-financed nature of the jd programme, which saddles a student with a huge financial burden and deters those from the working class from even considering law school as an option… (jd student, 2019) while most of the llb students are therefore spared the financial brunt of having to pay tuition fees, all students must, upon completion of their first law degree, complete the pcll programme. the hong kong government by way of its university grants committee also fund a limited number of places in each of the pcll programmes of the three tertiary education institutions responsible for 92 government of the hong kong special administrative region, education bureau <https://www.edb.gov.hk /en/edu-system /postsecondary/local-higher-edu/publiclyfunded-programmmes/index.html> accessed 31 march 2020. 118 legal education and the reproduction of hierarchy: a contemporary asian reading of a seminal text legal education and training in hong kong. students who are able to secure a government funded place in a pcll programme and who hold an llb or jd degree from a local institution have to pay a tuition fee of hk$42,100. and students who have secured a government funded place in a pcll programme but who completed their formal legal qualification elsewhere must pay a tuition fee of hk$140,000 at the city university of hong kong, hk$145, 000 at the chinese university of hong kong and hk$161,000 at the university of hong kong. for self-financed pcll students, that is students who were unable to secure a government funded place, the tuition fees are as follows: hk$187,920 at the city university of hong kong, hk$174,500 at the university of hong kong and hk$184,500 at the chinese university of hong kong.93 of these three tertiary education institutions only the university of hong kong offers a part-time pcll programme the tuition fee of which is hk$203,500.94 it is therefore undoubtedly that admission to the various law degree programmes in hong kong favours wealthy or middle class applicants. …legal education is an act of monetary game for the wealthy and it strengthens the continuation of the social hierarchy. (jd student, 2018) the great expense with which legal studies in hong kong is currently associated is particularly ironic given the original aim for establishing local legal education in the special administrative region; to curb the expense and extravagant cost of sending the best students to the united kingdom for their education and training. the admission statistics for the various llb and jd programmes offered in the hong kong special administrative region are reported annually by the three tertiary education institutions responsible for legal education and training, to the standing committee on legal education and training in hong kong.95 the standing committee on legal education and training is established under section 74a of the legal practitioners ordinance cap 159, and is tasked, inter alia, with broad review, 93 faculty of law, chinese university of hong kong <https://www.gs.cuhk.edu.hk/ admissions/programme/law#postgraduate-certificate-in-laws> accessed 31 march 2020; faculty of law, university of hong kong <https://www.ple.hku.hk> accessed 31 march 2020; school of law, city university of hong kong <https://www.cityu.edu.hk/slw/ pcll/admission.html> accessed 31 march 2020. 94 faculty of law, university of hong kong <https://www.ple.hku.hk> accessed 31 march 2020. 95 the annual reports are available online at <https://www.sclet.gov.hk/eng/pub.htm> accessed 31 march 2020. the denning law journal 119 evaluation and assessment powers over “the system and provision of legal education and training in hong kong”, including the academic requirements and standards for admission to the postgraduate certificate in laws programme, as well as any vocational training of prospective legal practitioners in hong kong by organisations other than the society or the hong kong bar association.96 the committee consists of 17 members appointed by the chief executive of the hong kong special administrative region, all of whom are nominated by the various stakeholders to legal education and practice in hong kong, including the chief justice of the hong kong court of final appeal (2 nominations), the secretary for justice (1 nomination), the secretary for education (1 nomination), the hong kong law society (2 nominations), the hong kong bar association (2 nominations), the vice-chancellors and/or president of the three universities offering law degrees (2 nominations each, 6 in total), the public (2 nominations), and one person nominated by the federation for self-financing tertiary education, a non-profit-making educational organisation which provide continuing legal education courses in hong kong.97 data from the annual reports of the standing committee on legal education and training in hong kong city university of hong kong chinese university of hong kong university of hong kong 2015/2016 llb applications received 704 unknown unknown students admitted 55 25 jupas and 24 non-jupas students; 5 mainland students and 1 student from another jurisdiction 75 43 jupas and 30 non-jupas students; 2 mainland students 256 llb: 98 students 69 jupas and 23 non-jupas students; 5 mainland students and 1 “through internal transfer” mixed-degree programmes: 158 students bba (law) & llb: 64 students; bsocsc (govt & laws) & llb: 65 students; ba (literary studies) & llb: 29 students 96 section 74a(2)(a)-(d) of the legal practitioners ordinance cap 159. 97 section 74a(3)(a)(i)-(ix) of the legal practitioners ordinance cap 159. 120 legal education and the reproduction of hierarchy: a contemporary asian reading of a seminal text city university of hong kong chinese university of hong kong university of hong kong jd applications received 341 946 full-time: 601 part-time: 345 350 plus students admitted 82 196 full-time: 130 part-time: 66 34 2016/2017 llb applications received 709 unknown unknown students admitted 62 42 jupas and 16 non-jupas students; 4 mainland students 108 49 jupas and 55 non-jupas students; 4 mainland students 253 llb: 95 students 72 jupas and 18 non-jupas students; 4 mainland students and 1 “through internal transfer” mixed-degree programmes: 158 students bba (law) & llb: 83 students; bsocsc (govt & laws) & llb: 47 students; ba (literary studies) & llb: 27 students jd applications received 315 743 full-time: 473 part-time: 270 260 plus students admitted 101 195 full-time: 130 part-time: 65 44 the denning law journal 121 city university of hong kong chinese university of hong kong university of hong kong 2017/2018 llb applications received 620 unknown unknown students admitted 66 43 jupas and 17 non-jupas students; 6 mainland students 80 45 jupas and 29 non-jupas students; 6 mainland 243 llb: 99 students 66 jupas and 26 non-jupas students; 7 mainland students mixed-degree programmes: 144 students bba (law) & llb: 67 students; bsocsc (govt & laws) & llb: 50 students; ba (literary studies) & llb: 27 students jd applications received 322 753 full-time: 460 part-time: 293 270 plus students admitted 104 205 full-time: 130 part-time: 75 47 it is evident from this data that admission to the various llb and jd programmes offered in hong kong is indeed a competitive affair. while seemingly only 10 per cent of applicants to the llb degree programmes are successful in securing a place, jd applicants have between a 20 and 30 per cent chance of gaining admission to the graduate law degree programme, albeit, at a considerable cost. moreover, with admission being so exclusively based on academic merit and so obliquely favouring the affluent, legal education in the special administrative region of hong kong is indeed for the elite. by taking only the brightest students, the institutions are creating a narrow and exclusive pool of ‘excellence’. by glorifying certain occupations such as medicine, law, and business, the hong kong education system perpetuates the 122 legal education and the reproduction of hierarchy: a contemporary asian reading of a seminal text twisted mindset that studying these subjects at university is the sole path to success. …this rigid hierarchy is merely a byproduct of the elite culture in hong kong. (jd student 2019) thus, without the hong kong government and the respective universities taking class inequality seriously, and implementing policies such as affirmative action or need-based financial aid on a consistent and transparent basis, the existing legal hierarchies will continue to reinforce class inequality in hong kong. …it was until the first class did i realise that how easy things are to those come with background and how life is a struggle to those come rather unimpressively. as soon as we were settled for class, my classmates were extensively sharing their background. the guy on the left with hermes from top to toes revealed his residency in residence bel-air. girl on the right with no prior legal academic background earnestly shares her work experience in magic circle. a classmate at the front introduces us to his alma maters, schools exclusively for affluent upper-class. with a relatively less attractive background, i was left in my seat, unsettled and shock. i wondered if there was any place for me. (jd student 2019) b. training for the hierarchy: the pcll programme the exclusive importance of excellent grades for gaining admission to the llb or jd programmes of the three higher education institutions responsible for legal education and training in hong kong also continues once students are at university. as explained earlier, the postgraduate certificate in laws (pcll) programme was inaugurated in 1972 and serves as the fundamental entry requirement to practice law in hong kong. it is only once students have successfully completed the pcll that they are allowed to proceed with the requisite practical training in the form of a pupillage or training contract to ultimately practice law as either a barrister or a solicitor in hong kong. admission to the pcll is highly competitive at all three the tertiary education institutions and it is also, similar to the admission requirements for the llb and jd programmes, exclusively based on academic excellence. first of all, since there is no bar exam in hk, the only way for people to be a lawyer is to get the postgraduate certificate in laws (pcll). in other words, gpa becomes the most important thing for law school students to get into legal profession in hk. under a strictly divided ranking in law school, students the denning law journal 123 have to focus on how to get a high gpa rather than justice itself. (jd student, 2019) such strict control of pcll makes legal education costly; a law student may spend lots of time and money before he or she become a lawyer. a student from middle-lower class would hesitate to choose law when considering the expense, which results in law schools more likely to recruit middle-upper class students and new lawyers may more likely come from middle-upper class. when these lawyers at last become the maker of the rules, hierarchy of the whole system would be strengthened not weakened, the admission of lawyer remains close and legal education which serve such system would remain unchanged. (jd student, 2018) the pcll is the only thing and everyday topics among students. we had been told that if we can’t get in to the pcll, our life is over. hk law student are like gladiators fighting each other to get in to the pcll. (jd student, 2016) regard can be had to the annual reports of the standing committee on legal education and training in hong kong for empirical data on the competitive admission processes of the pcll programmes.98 although statistically, it must be noted that admission to the pcll programmes is less competitive than those of the llb and jd programmes discussed in the preceding part of this article. data from the annual reports of the standing committee on legal education and training in hong kong city university of hong kong chinese university of hong kong university of hong kong 2015/2016 pcll applications received 502 303 717 students admitted 171 (of 188 offers made) 53% comprised cityu graduates and 47% graduates from other institutions 150 129 students held local law qualifications and 21 held non-local law qualifications 340 full-time: 260 part-time: 80 most of these places went to hku graduates, with uk graduates having the second largest share. 98 the annual reports are available online at <https://www.sclet.gov.hk/eng/pub.htm> accessed 31 march 2020. 124 legal education and the reproduction of hierarchy: a contemporary asian reading of a seminal text city university of hong kong chinese university of hong kong university of hong kong 2016/2017 pcll applications received 470 332 706 students admitted 209 (of 231 offers made) 49% comprised cityu graduates and 51% graduates from other institutions 177 149 students held local law qualifications and 28 held non-local law qualifications 397 full-time: 307 part-time: 90 most of these places went to hku graduates, with uk graduates having the second largest share. 2017/2018 pcll applications received 485 306 717 students admitted 201 (of 248 offers were made) 43% comprised local graduates and 57% comprised graduates from overseas institutions 165 (of 174 offers were made) 417 full-time: 325 part-time: 92 most of these places went to hku graduates, with uk graduates having the second largest share. already by 1998, with two hong kong higher education institutions – the university of hong kong and the city university of hong kong – offering the pcll programme, the legal profession expressed the need to have its fundamental entry requirement, the pcll, standardised.99 the advisory committee on legal education consequently established a sub-committee (in 1998) comprising representatives of the two universities, alongside representatives from the law society of hong kong, the hong kong bar association and the judiciary, to explore the implementation of a common examination system for hong kong’s pcll.100 the idea was therefore for the two universities to continue offering the pcll programme, but for all pcll candidates to write a final, common entrance 99 marsh and ramsden (n 24) 151. 100 marsh and ramsden (n 24) 151. the denning law journal 125 examination for entry to the legal profession. whilst members of the hong kong law society and the hong kong bar association unanimously supported the proposal, the two universities opposed.101 curiously, the argument put forward by the university of hong kong and the city university of hong kong, “that the pcll curricula were not well suited to common examinations which require that a common course of study be designed first”, also confirmed the general concern of the hong kong legal profession “that the absence of standardisation in legal education did not ensure that graduates from the two schools were equally prepared for their careers, and that the quality of new entrants to the profession was inadequate”.102 facing a stark standoff and divide between the hong kong legal academia on the one side and the legal professionals on the other, the advisory committee on legal education decided in july 1999 to suspend the push for a common pcll examination, pending a thorough review of the general state of legal education in hong kong.103 in the redmond-roper report published in august 2001 and referred to earlier in this article, the pcll programme again came under scrutiny as the two consultants submitted that the curricula offered by the two universities were insufficient and designed as extensions to the law degree, focusing “predominantly on academic pursuits at the expense of skills development and practical training”.104 different, however, from the proposal by the hong kong legal fraternity to introduce a common entrance examination as an additional hurdle or obstacle on the road to the coveted status legal professional in hong kong, redmond and roper recommended that the pcll be replaced by a 16-week legal practice course administered by an institution independent from the universities offering legal education and training at that time.105 yet, the advisory committee on legal education’s ad hoc advisory steering committee on the review of legal education and training in hong kong decided not to pursue this recommendation and rather sought for the two universities to proceed with major reforms of its existing pcll curricula.106 in recent years, the hong kong law society has again revived the proposal for a common entrance examination to be introduced after the completion of the pcll, and as an additional hurdle for admission to the solicitors’ branch of the legal profession.107 this most recent push for a common entrance examination has 101 marsh and ramsden (n 24) 151–152. 102 marsh and ramsden (n 24) 152. 103 marsh and ramsden (n 24) 152. 104 marsh and ramsden (n 24) 153. 105 marsh and ramsden (n 24) 153. 106 marsh and ramsden (n 24) 153. 107 chan (n 23) 1. 126 legal education and the reproduction of hierarchy: a contemporary asian reading of a seminal text been met with strong opposition from the universities involved, as well as the hong kong bar association. the standing committee on legal education noted in their interim report, for example, “that there was no sufficient or convincing justification for the introduction of a common entrance examination” in hong kong.108 johannes chan, in turn, reminded that since the promulgation of the legal practitioners ordinance cap 159 of 1964, the powers of the chief justice of the then hong kong supreme court (now hong kong court of final appeal) to regulate the practice of law and legal professionals in hong kong had only partially been transferred to the hong kong law society and that any change in admission requirements by the hong kong law society remained subject to the approval of the chief justice.109 given the already highly competitive nature of legal education in the hong kong special administrative region, the introduction of an additional hurdle on the path of becoming a legal professional in hong kong is indeed questionable. more pertinent concerns regarding the current pcll programme are rather whether this one-year practical legal training course serves its purpose, and whether practical legal training is a task that falls within the purview of universities. should the training of practical legal skills not rather fall under the authority of the legal profession by way of its professional bodies – the hong kong law society and the hong kong bar association? for example, in 1979, with reference to the practical training for aspiring barristers in england and wales, professor harry cohen remarked as follows: the practical formal trial advocacy training the ordinary english bar student receives is questionable, and it is only when he or she enters pupillage that the student may receive good training in chambers under a barrister who may or may not be a good teacher. this assumes in the first place that the student is “acceptable” ’. in fact, there is a great deal of discrimination of all kinds in the process. this is because universities, particularly publicly funded universities, are in the business of (or should be in the business of) higher education and research, and not vocational training.110 moreover, the gatekeepers of a profession, like that of the legal profession, are the respective professional bodies responsible for 108 chan (n 23) 2. 109 see section 4 of the legal practitioners ordinance cap 159 and rule 7 of the trainee solicitors rules cap 159j; chan (n 23) 8–10. 110 harry cohen, “the divided legal profession in england and wales – can barristers and solicitors be fused?” (1987) 12 the journal of the legal profession 7, 16. the denning law journal 127 regulating the profession and this gatekeeping task is not one in which universities should become too readily involved, by way of, for example, determining admission to a practical legal training programme like the pcll programme. with regard to the most recent proposal for a common entrance examination one student observed as follows: professor kennedy addresses the issue by suggesting a minimal skill test for admission, which resonates with the reasoning of the implementation of the common entrance examination (cee) in 2021. the exam can eliminate the discrimination against graduates from a less competent law schools and standardizes the quality of lawyers entering practice. unfortunately, universities seem to strongly protest against the cee. universities wish to maintain their hierarchical status to keep the privilege they have been enjoying, i.e. deciding who to admit as a layer. how ironic is it to resist something that creates a better future and stay obedient to an illegitimate hierarchical education system. (jd student, 2018) c. law school rankings duncan kennedy remarked as follows on the role that law school rankings play in the reproduction of hierarchy in legal systems. the teachers’ fundamental structuring practice is the creation and maintenance of a hierarchy of law schools. this involves at least three subpractices: first, law teachers create an ordering of schools according to material resources and faculty academic qualifications (the richest schools tend as a general matter to have the most academically qualified faculty rather than the least qualified). second, law teachers arrange law school applicants in an ordering according to “corrected” college grades and lsat scores. third, law teachers allocate students to schools so that the “better” students go to the “better” schools. the upshot is a system in which some schools have lots of money, “good” teachers and “good” students. other schools have middling money, teachers and students. the bottom schools have little money, “bad” teachers and “bad” students. (of course, some schools defy such easy characterisation, but not many.)111 this hierarchical reproduction is particularly notable in the context of hong kong, a small jurisdiction with all three of its legal education and training 111 kennedy (n 1) 67. 128 legal education and the reproduction of hierarchy: a contemporary asian reading of a seminal text providers – the faculty of law of the university of hong kong, the faculty of law of the chinese university of hong kong and the school of law of the city university of hong kong – featuring under the top 100 law schools in both the 2019 qs world university rankings, as well as the times higher education world university rankings. in the law subject ranking of the 2019 qs world university rankings, the faculty of law of the university of hong kong is ranked at 19, the faculty of law of the chinese university of hong kong at 40 and the school of law of the city university of hong kong in the 51 to 100 cohort.112 and in the law subject ranking of the 2019 times higher education world university rankings, the faculty of law of the university of hong kong is ranked at 22, the school of law of the city university of hong kong at 45 and the faculty of law of the chinese university of hong kong at 49.113 moreover, these three tertiary education institutions also fare well in terms of the general university rankings with the university of hong kong ranked at 25 in the 2019 qs world university rankings, the chinese university of hong kong at 36 and the city university of hong kong at 55.114 of this, students remarked as follows: if the ranking system of law schools in the usa help create and maintain a hierarchy of law schools as kennedy argues, the situation is even worse in hong kong. the limited number of law schools make it more straightforward for the ranking of them in hong kong, and the potential law students are clearly divided into three tiers during the application stage. with the ‘best’ students going to the ‘best’ law school and the least capable ones to the third best law school, the hierarchy is so rigid that it is hard if not impossible for a slight change. (jd student, 2019) in particular, the fact that there are only three law schools in hong kong which, from my point of view, reveals a more obvious hierarchy than that in 112 qs world university rankings 2019 <https://www.topuniversities.com/universities/ subject/law-legal-studies> accessed 31 march 2020. 113 times higher education world university rankings 2019 <https://www. timeshighereducation.com/world-university-rankings/2019/subject-ranking/law#!/page/0/ length/25/sort_by/rank/sort_order/asc/cols/stats> accessed 31 march 2020. 114 qs world university rankings 2019 <https://www.topuniversities.com/universities/ country/hong-kong-sar> accessed 31 march 2020; the 2019 times higher education world university rankings ranked the university of hong kong at 36, the chinese university of hong kong at 53, and the city university of hong kong at 110; times higher education world university rankings 2019 <https://www.timeshighereducation. com/world-university-rankings/2019/world-ranking#!/page/0/length/25/sort_by/rank/ sort_order/asc/cols/stats> accessed 31 march 2020. the denning law journal 129 the usa. not only the law schools itself are competing for the ranking in terms of reputation, resources, affiliation with law firms and so on; their students are also inevitably forced to accept the professional hierarchy and are preoccupied with the ranking status. from the moment they enter law schools, law students become part of the legal hierarchy. (jd student, 2016) and another observed that “students and teachers are intensely preoccupied with the rankings of schools” (jd student, 2018). with regard to the fierce competition that also exists among the three law schools/faculties responsible for legal education and training in hong kong, it is ironic to note that when the chinese university of hong kong announced on 10 may 2004 that it would be establishing hong kong’s third law school, both the university of hong kong and the city university of hong kong remarked that “a larger community of legal scholars and healthy competition among quality law schools would enhance rather than dilute the quality of legal education in hong kong”.115 yet, whether the preoccupation with rankings that currently characterise the legal education and training landscape of hong kong fosters quality legal education, is debatable, as will be evident from the discussion below. iv. from law school to legal practice: the contribution of legal education to hierarchies in the legal profession of hong kong the hong kong special administrative region with its estimated population (by end 2018) of 7,482.5 million people,116 is currently being served by a legal fraternity comprising approximately 9,757 practising solicitors and 1,611 barristers.117 these legal professionals are primarily produced by the three local tertiary institutions responsible for legal education and training in hong kong. 115 marsh and ramsden (n 24) 155. 116 government of the hong kong special administrative region, census and statistics department, 2018 population statistics, <https://www.censtatd.gov.hk/hkstat/sub/so20. jsp> accessed 31 march 2020. 117 this data on the number of practicing solicitors and barristers in hong kong as well as the data below was obtained from the annual reports of the hong kong law society and the hong kong bar association. hong kong law society reports available online at <https://www.hklawsoc.org.hk/pub_e/about/report/> accessed 31 march 2020, and hong kong bar association reports available online at <https://www.hkba.org/eventspublication/annual-statements> accessed 31 march 2020. 130 legal education and the reproduction of hierarchy: a contemporary asian reading of a seminal text hong kong law society 2016 2017 2018 total members 10,345 (of which 48% of practicing certificate holders are female and 52% male) 10,798 (of which 48% are female and 52% male) 11,246 members with practicing certificate 9,076 (of whom 7,010 were in private practice) 9,463 (of whom 6,951 were in private practice) 9,757 (of whom 7,413 were in private practice) trainee solicitors 646 trainee solicitor contracts were registered 1,156 1,239 registered foreign lawyers 1,645 1,433 (from 34 jurisdictions) 1,602 (from 33 jurisdictions) hong kong bar association 2016 2017 2018 practising barristers unknown 1420 1,611 total pupils serving (pupillage) 174 185 206 number of pupils having commenced with pupillage unknown 98 108 number of pupils admitted as barristers 84 86 108 number of pupillage applicants received 595 606 725 with regard to the reciprocal relationship that exists between the hierarchy in legal education (as discussed in the previous part of this article), and the hierarchy in the legal profession and practice, duncan kennedy said the following of the situation in the united states of america: legal hierarchy is a typical american phenomenon, rather than something peculiar to law or even to the professions. law firms and law schools strongly resemble, from the point of view of hierarchy, the other institutions of our society, including state bureaucracies, service corporations, and industry. the the denning law journal 131 relationship between legal education and law practice is typical of relationships between the parts of the total hierarchical structure that have strong functional, input-output links. and, the ideology of legal hierarchy is no more than a specialized application of the general meritocratic ideology of american society.118 this is also true of the situation in hong kong, and was described by a jd student as follows: …within a market driven economy, the principle of supply and demand further substantiates the existence of legal hierarchies, academically and socially. not only are lawyers attracted to the materialistic rewards of conformity, but also the established firms as well, for their goal is to increase market share. thus, any attempts of reform would be prevented in void of ‘rocking the boat’. clients have therefore unconsciously shaped the selection requirements for lawyers. consequently, all that has been criticized by kennedy is no unique problem to the legal field. (jd student, 2019) in hong kong, most law students aspire to secure a training contract with one of the reputable international law firms in the city.119 these firms are usually referred to by the students as the “magic circle” and was described as follows: most law students believe that if they work hard enough for a strong gpa, they might join the magic circle. but as i demonstrated, moving up the social ladder is difficult. it’s labelled as the magic circle because it segregates people from other social classes than one’s own. (jd student, 2018) the legal field is more hierarchical than any other disciplines. best students go to the best law school, land at a great trainee contract and start their career in the magic circle. on the practical side, firms in hong kong are divided into various circles according to their frames, histories, traditions and businesses. magic circle only has its door open for students with a strong familial background. silver circle welcomes those who are professionally trained since a young age. red circle is for those who are ready for the mainland’s market. they are the top in the hierarchy. in the middle sit the international firms whereas local firms occupy the lowest deck in the diamond-shape hierarchy as kennedy described. (jd student, 2019) 118 kennedy (n 1) 100. 119 these are, for example, the firms clifford chance, linklaters, slaughter and may, allen & overy, freshfields bruckhaus deringer. 132 legal education and the reproduction of hierarchy: a contemporary asian reading of a seminal text yet, it is not only a good cgpa that will secure a position at a reputable international law firm in hong kong. kennedy noted in his 1983 text that “your chances of ending up at a ‘top’ law school are directly proportional to your status at birth”.120 this is all the more true in hong kong, and in the discussion below it will be shown how, in addition to grades, social and economic standing, as well as law school ranking, impact on hong kong law students’ career prospects in the city. a. social mobility and social aspirations: doomed for the legal hierarchy in the introduction to this article, the perceived social prestige and status associated with studying law and entering the legal profession, and the potential gain this may hold for a “family’s cultural capital”, especially in east asian societies, were elaborated upon. the positive correlation that exists between socio-economic status and academic performance was furthermore noted in part iiia of this article in the context of law school admission processes and the advantage students from wealthier families have in this regard. the exorbitant cost of the various law degree programmes, which makes it difficult for those from the lower socio-economic strata of hong kong society to qualify as a legal professional, was also considered in part iiia. in addition to these, hong kong law students also suggested that the local and international law firms and the various chambers in hong kong favour students with a particular social standing and background when considering whether to offer a training contract or pupillage position. one’s status is not only determined by the gpa, but also, whether he/she is a rainmaker or not, in other words, firms always value those who can bring new business opportunity to the company. since wealthy family own more resources and have the broader social network, it makes sense that their children benefit from these advantages, thereby, strengthen their social status. (jd student, 2018) students with an upper-class family background will have an upper hand. they tend to know people from the law industry, be it due to similar social status or they are themselves a client of those firms. these spider-web relationship is part of the critical success factors for law firms. in fact, job placement of clients’ children is no stranger to industries that rely heavily on client relationship like the private bank industry. (jd student, 2018) 120 kennedy (n 1) 54. the denning law journal 133 the most authoritative lawyer in the market only choose the top students who are usually from wealthy family and high social status. the economic ability of the student’s family is crucial if the student chooses in qualifying as a barrister. without the family financial support, there is no way to sustain from being a free labour for a year or more. (jd student, 2018) the law industry relies heavily on network and personal relationships. students with parents or relatives at the law profession are at great advantages, as they are exposed to more support and connections. law firms favour students with legacies for two reasons. first, the law industry itself is a commercial practice. a student or future employee with strong networks are potential client bases. second, lawyers are professionals whose reputation are main sources of income. training ones whose family members are closely related to the industry proves it less risk on wasting time and resources on unsuitable individuals. to law firms, there is certainly no doubt in deciding who, with similar grades and skills, are better candidates. …status at birth is directly proportional to chances of being in a top law school and unfortunately, the phenomenon extends to the whole industry. …at the end of the day, the likelihood of a lower social class student trespassing …is exceptionally low, and even if one beats the odds, the career does not prove it any easier in an industry that is so heavily network based. (jd student, 2019) “the first class in law school usually is a self-introduction session, one of my classmates said that her parents are both solicitors. i can never stop reflecting the confidence in her eyes… (jd student, 2019) this situation stands in stark contrast to the situation in the people’s republic of china, which was described by two jd students as follows: in china, legal education could be a means for a student to change class. national jurist exam is available and equal to all law school graduates. law school students would not worry about whether teachers like them or not as they don’t have to get high gpa for the qualified exam. students could challenge their teachers, and they could have their own ideas. lower class students always have the chance to become a lawyer and shift to a higher class if they keep trying, which can weakened the hierarchy. (jd student, 2018) the first is the hong kong culture, including language and white supremacy. …in hong kong, after attend some alumni activities, i realised that without fluent cantonese one can hardly be a barrister in hong kong, although we are all asian face; however, with a ‘white fact’ you can do ‘whatever you want’ in the law society in hong kong. this is a ridiculous but also a fact. you may be a middle or upper class in mainland, as long as you are 134 legal education and the reproduction of hierarchy: a contemporary asian reading of a seminal text not able to speak cantonese or you don’t have a ‘white face’, you will have a lot of barriers in pursuing your law career in hong kong. (jd student, 2019) indeed, despite the overt emphasis being placed on academic achievement in gaining admission to study law and ultimately joining the legal profession in hong kong, it seems “being clever” is indeed not enough. however, we need to rethink whether a position in society is an indicator to determine your ability. if so, upward mobility only belongs to those people with superior position in society, and all the law firm would entirely ignore your effort on the legal study. (jd student, 2019) b. the impact of law school rankings on students career paths hong kong law students are seemingly acutely aware of the direct impact law school rankings have on their future career paths, and specifically their prospects in securing a training contract or pupillage in hong kong. as law firms, especially the ones that have already occupied high market share, they per se want hierarchy in the competing market of legal service, which make it easier for them to attract and convince the high level clients. and what else can be the standards of the top law firms besides knowledge, service, relationship and scale of fees? the answer may be their standard of requirement, and one of the easiest ways to distinguish the resumes of the graduates is by their education background, as a result, the hierarchy of law schools will be formed among the market, which is good news for top law schools because employment rate is one of the important evaluation indexes. what’s more, the relationship of alumni is a kind of resources for both schools and graduates, which can be seen in the official websites of the universities. partners are usually willing to hire their alumni partly because they want to help their schools raise their employment rate and reputation. …as a student that graduates from a lower-class law school in mainland, it is now very difficult for me to get an internship even in the outstanding but not the top law firms. it seems that you should go forward step by step, if one of your steps is wrong, for which you have to pay a lot. (jd student, 2018) other students were far less circumspect in their observations of how law school rankings impact on their future career path, and gave unembellished accounts of their experiences as law students from the law school with the lowest rank in the city – the city university of hong kong. the observations and personal the denning law journal 135 anecdotes of students included here are so powerful and illustrative of the reproduction of hierarchy from law school to the legal profession that it does not deserve any further contextualisation and are rather included here in extenso: in hk, receiving a degree from hku practically guarantees any candidate a spot in the “magic circle”. while cityu has improved in rankings, culturally, it is still quite stigmatized. …speaking to different partners and associate, many agree that although cityu has produced successful lawyers, it is the “name” of the school that prevents firms from accepting promising individuals. for example, chambers such as temple or des voeux only accept oxford and cambridge graduates. (jd student, 2019) hku graduates are much more likely to practice in famous or city firms and specialise in high-prestige fields of law mainly due to its higher reputation and the large proportion of its graduates practicing in hk. i once did minipupillage in a famous chambers in hk where i surprisingly found that all barristers graduated from hku. from daily talks with my classmates, it seems that students have now accepted that hku graduates are enjoying that “privilege”. (jd student, 2016) thanks to the arrangement of the law school, we are frequently exposed to opportunities in joining open house events in those top-tiered law firms. a bit to our puzzle, the interns and trainees from local law schools being put on stage are almost all from the 2 top-tiered law schools in the territory. if gpa is a universal benchmark, then where have those from cityu […] disappeared into? from my perspective as a retired experienced management staff with on-going recruitment responsibilities, i do think that, to certain extent, there are glass ceilings in the recruitment process. there exists a subconscious (if not conscious) bias of the alumni recruiters to prefer those from their same top-tiered law schools as it will further reinforce the power of the same background in the firm. when everything stands equal vs other students who have a strong alumni or top-tiered school background, you need to strive extra hard if not till your last breath to impress the recruiter of your ability. (jd student, 2018) my experience at an open house event of elite law firms reflects upon this phenomenon. based on the presentation, i can tell there is a clear sense of the hierarchical role of lawyers in society, since it is common practice for opt law firms to recruit students from the top two law schools and to overlook students from the third ranked school. as a result, students from top law schools have already assured their superiority in the society by making more money, exercising more authority than students from lower ranked schools. (jd student, 2018) 136 legal education and the reproduction of hierarchy: a contemporary asian reading of a seminal text last semester, i went to the law fair in wan chai. whilst being overwhelmed by the number of exhibitors and how keen they were to give away merchandise and talk about their firm, i was more overwhelmed by some of their reaction when i revealed to them that i am a law student from city university. most of them after talking to me for a few minutes, changed their tone and attitude from a keen and optimistic tone to being rather sympathetic to the point of pitying me. i remember one of them said to me “look, you are a nice girl but the reality is […] it will be really hard for you to get a training contract i’m afraid,” which still rings in my ear. if students from what is seen as a lower ranked law school is judged against a bias, then ultimately the hierarchy of law schools will give rise to a hierarchy between lawyers as which law school you went to will stick with you through the rest of your career. (jd student, 2019) …i had seen a lot many senior partners like to ask where did the trainees or junior associate graduate or where did they work before? they beautify it as searching their law school fellows. however, legal secretaries clearly know that they are actually categorizing people from different law schools to estimate or judge their working ability. such categorization creates an “invisible” hierarchy among the staff from the same batch of trainees to the senior associates. (jd student, 2018) i participated in the hong kong law fair 2017, where booths of reputable international firms were set up for enquiries and law students from different universities would interact with the firms’ representatives. i approached one trainee solicitor and gave a self-introduction. once he knew which university i was from, he walked away instantly, most probably because of the “lower prestige” of my university. his conduct was, not only disrespectful but also the best proof of duncan kennedy’s words – “where you went to law school… seem to make an enormous difference to where you can get a job”. the school/ firm hierarchy has seemingly prescribed our future before we could realise what is going on. (jd student, 2018) v. why (the reproduction of) hierarchies in law and legal practice are bad: the case of the hong kong special administrative region it is submitted that the existing and reinforced hierarchies of the legal (education) system and the legal profession of the hong kong special administrative region have far-reaching consequences not only for those trying to make their way up the denning law journal 137 through the hierarchy, but also for the city and all its residents. of this duncan kennedy said: the denial of hierarchy is false consciousness. the problem is not whether hierarchy is there, but how to understand it, and what its implications are for political action. […] anyone who wields social power, including all lawyers and all law teachers, constantly influences the choices of others, and no amount of respect for diversity can exempt from responsibility of that influence.121 a. when grades define worth the overt obsession with and focus on grades and rankings in the legal education and training system of hong kong was evident from the discussion in the preceding parts of this article. it was also shown that these grades and rankings are often the primary determinative factors in the decisions of law firms and chambers when respectively offering training contracts or pupillage positions. this continuous reproduction of hierarchy from pre-university education, throughout students’ university training, and also when they compete on the job market was remarked upon as follows by jd students: acceptances into the postgraduate program relies on the undergraduate mark achieved, above a cut-off grade. internship applications rely on the gpa achieved, above a minimum requirement. potential job offers i choose to accept would rely on how highly ranked the firms are, with one being above the other. when i achieve the seniority to choose interns, i would look at their grades, choosing the best one among them, and thus restarting the cycle. from the education system, to the law degree, to the internships, to the firms, the idea reaffirmed is that i must be the top one, because all future hierarchies are dependent on the concept of “best” and “top”. the better numbers i achieve, whether in the form of a grade or a ranking, the better i will do in the future, as a lawyer. (jd student, 2018) …these grades in return determine where a student will work in the future, their salary, and their standard of living. this is especially true in the first year, where students are experimental and unsure of how the system works. therefore can it be said good results are based on how fast you “get” the system and perhaps “luck”? there seems to be no second chances in the grading system and it is almost impossible to change your rank amongst students. (jd student, 2016) 121 kennedy (n 1) 95 and 110–111. 138 legal education and the reproduction of hierarchy: a contemporary asian reading of a seminal text it is submitted that this overt focus on grades and academic achievement at all stages of the legal education and training system of the hong kong special administrative region is currently doing more harm than good. it excludes worthy aspiring candidates based only on academic merit, and without adequately taking into consideration the various other qualities – other than academic achievement – successful legal professionals must ultimately possess. these include, for example, qualities like empathy and compassion, the ability to communicate effectively with people from all walks of life, strong ethical values, and an exemplary work ethic and commitment to serve in a profession which essentially exists for the interests of society. in hong kong, an overt focus on grades and academic achievement which remains ignorant of the necessary and valuable advantages diversity has to offer runs the risk of (further) establishing an elitist law study body and legal fraternity for the special administrative region. it also deprives hong kong law students from an important experience whilst at university; the joys of fostering real connections with fellow students, belonging to a collective student body and sharing educational experiences. amongst students, the competition is intense. over time, a hierarchical structure, i.e. “class rank” is recognised amongst classmates, through awareness of one another’s class performance and grades. there is a lack of desire and a sense of reservation to help others. moreover, this system creates a situation in which most students are only interested in examinable material, rather than wanting to gain an understanding beyond the confinements of the syllabus. (jd student, 2016) particularly crucial is the dire effect this overt focus on grades and academic achievement have on the emotional well-being of students: …students are merely their results [cgpa] under the hierarchy. (jd student, 2016) the concept of hierarchy begins to grow in our mind from the moment that we label ourselves as either superior or inferior according to our grades and school. i used to be a confident person who was convinced that artificial numbers such as my gpa, the ranking of my university do not define my value. but law school persuaded me the opposite. here, gpa and university’s ranking are essentially everything, for they determine my admission to pcll and my entire legal career. consequently, due to my relatively poorer results, my confidence faded. i frantically considered myself inferior to my classmates. it was tragic of how quickly i started to accept and position myself in the hierarchy under intense competition. (jd student, 2018) the denning law journal 139 one of the students remarked as follows: the issue with esteem, in the legal education, is the lack thereof. …when will we, as students, ever be able to reach self-actualisation, seeking personal growth and experience, and not just a blind pursuit of grades and numbers. (jd student, 2018) this student also stated that “the legitimacy of a legal profession that purports to generate a better, grand society, would require the fulfilment of selfactualisation”, in other words, the law cannot only strive towards social transformation, it must enact the transformation it wishes to achieve first in itself. in addition, given how important and determinative grades and the coveted cgpa ultimately are for the future career paths of students, an overt focus on grades and academic achievement unfortunately also impact on how students approach their learning experience at university. many students observed, for example, that it has become so important to achieve a high grade, that they would rather follow their lecturer or tutor’s instructions exactly, almost mechanically, than allow themselves to reflect more freely on their legal studies and practice their critical and independent reasoning skills. hong kong’s education system have rewarded students with ‘right’ answers and penalised “wrong” answers since elementary level, and hence individuals approach legal studies attempting to search for “right” answers, neglecting the process as to how such answers are derived. for example, students often examine cases merely by the ratio, rather than closely examining the legal reasoning which the ratio is derived from or how the case fits into the law as a system. (jd student 2016) …in the grading system of law school, we need to closely follow professors’ instructions in each course in order to get good grade. the grade level determines whether we could get into pcll and whether we could get interview chances from top law firms in hong kong. (jd student, 2016) …the classification of the hierarchy in law school may let all students lose the ability to judge themselves objectively. the ambition for higher classification brings a strong feeling that their own thoughts on law are not important and useless to help them to get a good mark. and it is not the aim for any reasonable person to start legal education. (jd student, 2018) this grade-centric regime incapacitates students’ critical thinking ability, as they are so eager to accommodate examiners’ academic preferences, in order to score the highest marks possible, which breeds academic deference. (jd student, 2018) 140 legal education and the reproduction of hierarchy: a contemporary asian reading of a seminal text the existence of such hierarchy defeats the whole purpose of legal education, one that should enable students to think differently from layman by encouraging them to read wide and develop a general appreciation for the law. however, hk students are only reading the minds and preferences of their professors. the need for good grades and to be associated with the ‘upper’ crowd is what i believe to be the culprit for producing lawyers that are book-smart yet lack the ability to think independently and critically. … for a legal education to produce its true value, it is essential that … greater emphasis [is placed] on the person as a whole but not just their gpa. (jd student, 2019) hence, instead of studying in the areas that we are interested in, we tend to study subjects with easier curriculum or good grading. (jd student, 2019) hence students become paranoid as to their grades, conforming the “intense awareness” and “endless comparisons” kennedy talks about. many will do whatever it takes to achieve a high gpa. they become reluctant to voice out their true thoughts, fearing that it might affect their grades if the marker did not like it. they also do and believe whatever they are asked or told. they become exam machines, generating high marks without really absorbing what is being taught, and when practicing in the real world, they are often being referred to as “high-grade retards”. (jd student, 2016) curiously, this grade-obsession prevailing amongst the law students participating in this exercise can be juxtaposed with that of medical education and training in hong kong, of which a jd student observed as follows: in medical school, there are no grades nor class rankings. while evaluation of students’ performances is based on a standard benchmark, students are freed from competition, and we tend to help each other and learn for our future instead for exams. …i sometimes wonder whether the letter grade on my transcript is a fair evaluation of my legal knowledge and how much they can translate in the real world. as kennedy criticized, the grading system in law schools is irrelevant to what students will do as lawyers, but only makes students of becoming exam machines and promotes hierarchy during when they feel hopeless if fail an exam. … since grading is the simplest evaluation method, it sends a message that only those who attain better numerical results are more competent in becoming corporate lawyers, while those with poorer results aren’t fit to be lawyers; indirectly creating a social hierarchy. (jd student, 2018) the denning law journal 141 b. it is all about the money, or is it? indeed, in most free market economies the competition for employment is fierce, but even more so in the hong kong special administrative region where a “business first” or “business above all” attitude reigns supreme. in the introduction to this article, it was noted that hong kong’s distinctive economic and social status and ongoing development are deeply rooted in its history and have found inculcation in its basic law, the mini-constitution of the hong kong special administrative region.122 goodstadt explains that “there was never any doubt about the government’s ultimate priority”, from the early colonial days to date, and “ ‘in almost all aspects of public life’ it has been claimed, ‘hong kong is about business’ ”.123 as to the rationale for, or impetus behind this commitment to economic growth at all costs, goodstadt states that it always “went hand in hand with an obsession with the perceived dangers of welfarism”:124 anti-welfarism was so potent an element in the preconceptions shared by officials and business leaders alike because it reflected an even more compelling concern: welfare seemed unaffordable because both groups were convinced of the fragility of hong kong and its success. […] the fear of what the future holds remains a dominant sentiment. […] this sense of vulnerability reinforces resistance to any tendency towards a higher priority for the social services.125 in preserving so much of hong kong’s past in the basic law and in terms of the principle one country to systems until 2047, the overt colonial businessmentality and commerce-focus at all cost continue to dominate much of contemporary hong kong life, administration and culture, and therefore also its law and legal (education) system. from the perspective of the colonial government, and now the chinese-hong kong government, it’s more stable and thus desirable if the hongkongers chase after money than political and civil rights that are too dangerous for the regime 122 see chapter v of the basic law of the hong kong special administrative region of the people’s republic of china, <https://www.basiclaw.gov.hk/en/basiclawtext/index. html> accessed 1 april 2020. 123 goodstadt (n 16) 10, quoting from david mole, “introduction”, in david mole (ed), managing the new hong kong economy (oxford university press 1996) 4. 124 goodstadt (n 16) 10. 125 goodstadt (n 16) 13 and 20. 142 legal education and the reproduction of hierarchy: a contemporary asian reading of a seminal text to effectively control the place. this, in my opinion, has a great impact on how its legal education has been conducted. you won’t be surprised to find law schools in hong kong offer a great variety of business law courses, investment law, trade law, just to name a few, whereas different human right law courses are in the minority on the course list. as a result, law students in hong kong are well equipped with skills needed in the corporate business environment. however, as one of the fundamental aims of legal education is to achieve justice, if legal education is used as a tool mainly to achieve economic purposes of society, it leads us to ponder whether we are achieving these at the expense of social justice, such as class and gender inequalities in practice? and to use kennedy’s words, are we actually paying endless attention to trees at the expense of forests? to kennedy, law school is a training place for those willing to work in the hierarchical corporate welfare state and it generates collective passivity in the disguise of fairness which perpetuate class, racial subordination and gender inequality. from my observations, this is also the situation in hong kong, but i would say not just the legal education, but the entire education system, that we are training the legal professionals and others serving for the economic needs of our society and we tend to care less whether we are creating any sort of inequalities or hierarchies in the process. although creating hierarchies is not necessarily a bad thing for societies to work well, we need to bear in mind that legal education and education system as a whole should aim to educate people with critical minds and not to generate collective passivity in the disguise of fairness. (jd student, 2016) given, therefore, that most of what happens in hong kong, or does not happen in hong kong, is prompted primarily by or for the advancement of the commercial sector, large corporate law firms hold a particular allure for law students, leaving those who are unable to secure a position in a top international law firm seemingly forever doomed with a career “at the lower end of the market” (jd student, 2018). in hong kong, gpa is vital for law students to apply the license required program pcll, and it is even the line to differentiating students from getting into a decent international firm or a crappy local firm. (jd student, 2016) …there is much emphasis on hard work and performance, which will in turn be rewarded. there were no reasons given as to why one should choose an international over a local law firm apart from the salary and prestige; furthermore, choosing to become a human rights or criminal lawyer was to be “brave choices”. (jd student, 2016) the denning law journal 143 in the first semester, we were petrified by professors who told us that without entering a top international law firm in the very beginning of career, we will always be ‘stuck’ at local law firms for the rest of our law career. since then, we have been categorised among peers with labels of “potential international firm” and “local firm” on our foreheads through daily performance and coursework grades. (jd student, 2016) students furthermore noted that this hierarchy or preference is mirrored in the courses on offer in their law programmes; it being “largely shaped by the economic interests in hong kong” (jd student, 2018). to remain competitive, law schools also follow the job market closely and oblige students to learn extensively about the commercial world. those who wish to become a qualified lawyer in hong kong are required to take certain courses as part of the admission requirement. however, a majority of the core mandatory courses are gearing towards corporate practices; for instance, company law, commercial law, equity and trust and more. …students are required to spend considerably more time on business-related courses, which tailor to the needs of international law firms. … the system portrays that business-oriented practices are important but others are relatively insignificant. this hierarchy highlights the differences in social class. … ultimately, students in hong kong are convinced that corporate practice is seemingly a better career choice while practicing in other specialities would be portrayed as less competent. (jd student, 2018) the syllabus design gears students to be end products for the benefits of employers whose hierarchical corporate cultures infiltrate the students’ minds before they graduate through career talks, open houses and interview skills workshops. (jd student, 2018) from my observation, my class mates prefer taking courses like commercial law, banking law, intellectual property law and so on. it is partially driven by students dominant in college who mainly composed of higher level of business and political family background. it is therefore understandable for higher demand of more practical and commercial courses. the trend is also pushed by profit-driven culture of the economic-based environment where we are raised and taught to go for raising our social status and financial status. (jd student, 2018) most of the courses are designed for corporate lawyer, so as the career events of the school, students who are not aim for the same has their career path and possibilities being limited and moulded. by following this training, students become machinery and loss their true colour. (jd student, 2019) 144 legal education and the reproduction of hierarchy: a contemporary asian reading of a seminal text ultimately, this extreme business-mentality and commerce focus seemingly train law students not only for the hierarchy, but distinctly for commercial practice: my first impression about law school is not just hierarchical oppression, but hypocrisy. it all began during orientation when students said they wanted to serve justice. i can tell some of them were genuinely, perhaps idealistically, aspired to turn social injustice on its head, yet most of them, after just one semester elapsed, have turned their aims to becoming a lawyer at corporate firms, where their size depends on grading – the best student aims to enter magic circle while the rest settles for local firm. …asking anyone to consider non-profit organization, such as the legal aid department, will make you look ludicrous. (jd student, 2018) …this is a vicious cycle that makes law schools manufacture ‘corporate lawyer clones’ cohort after cohort that all wanted to squeeze into top law firms. the design of law programmes forces students with no choice but moulded into lawyers the society wants them to be. (jd student, 2019) legal education and training in the hong kong special administrative region should therefore take care in not also turning a blind eye to social development and justice in deference to a “business first” attitude. and while there are examples of best practices fostering social awareness amongst law students and enabling students to also pursue careers beyond commercial legal practice,126 much more can – and should – be done. in fact, this much was already noted in the 2001 redmond-roper report referred to earlier in this article, and in which it was submitted that “legal education should be capable of adapting to meet the needs of different segments of hong kong society. legal education in hong kong was [referring to the time of the report (2001)] essentially geared towards addressing the needs of the market economy. yet hong kong is more than just an economy, it is a modern, complex society with residents who have a vast range of legal needs. it is incumbent on law schools to equip graduates with the knowledge and skills to help identify and address unmet legal needs”.127 126 these best practices include the following: some of the mixed-degree programmes offered by the faculty of law of the university of hong kong and mentioned earlier in this article allow students to explore and prepare for a range of possible careers in law, beyond that of commercial legal practice. the faculty of law of the chinese university of hong kong has also made concerted efforts in fostering civic engagement in its law curriculum design. see, for example, marsh and ramsden, supra note 65, at 57–65. 127 marsh and ramsden, supra note 65, at 59, referring to steering committee on the review of legal education and training in hong kong, supra note 53 at 72 and 78. the denning law journal 145 as a matter of usual practice, law schools would always channel students into jobs in the hierarchy of legal profession according to their own standing in the hierarchy of schools; and suggest top students to join large firms for big money, but without training students who to run a small law business or to enjoy the feeling of independence and moral integrity that comes of creating their own job to serve their goals. …in fact, legal education as gradually developed in an unhealthy direction that is not for helping the oppressed but only for profitgaining. such circumstance is not what legal education desire to establish. (jd student, 2018) indeed, what the hong kong law schools taught are no more than the legal rules and legal reasoning. in other words, a law degree can be meaningless for a graduate whose application for pcll has been rejected. he may have never gained enough useful knowledge or skills after obtaining a llb or jd degree from the three law schools. more importantly, the legal education in hong kong may not have given the law students a clear aim except pursuing a legal career as a solicitor. (jd student, 2018) most ironically, at a mock interview, based on an ngo scenario, i was advised to get myself a ‘glamourous internship’ at this point of time. however, there would be limited social value to put every law student on track to become extravagantly-paid corporate lawyers, in arranging commercial deals. the market economy is important, but what about people without access to affordable legal services? …i have always wanted to be a judge, because this role exudes impartiality and integrity. unfortunately, it was hardly endorsed as a pursuable legal career. i also wanted to help minorities gain access to legal services, but i was often told that it would not earn much money, and would be disproportionate to my huge tuition investment on my legal education. (jd student, 2018) of a narrow trade mentality in legal education and training, one jd student posed a fair warning for the future: the impact of technology advancement may shake the long-existed hierarchy and bring some changes to the legal education as well. nowadays, the line between a “profession” and an “occupation” is becoming unclear. it would be an old-fashioned mindset if law schools are only treated as the breeding ground of the legal “profession”. due to the advancement of ai and machine learning, some of the tasks (such as contract review), which have to be done by lawyers, can now be handled by ai-powered software with even higher efficiency and accuracy. therefore, some commentators have claimed that lawyers might be one of the jobs that will be largely substituted by ai in the 146 legal education and the reproduction of hierarchy: a contemporary asian reading of a seminal text future. although i do not take such a pessimistic view, i think being a lawyer would be shifting from being a “profession” to be an “occupation” in the foreseeable future. therefore, it is necessary for the law schools to get prepare for the challenge and adjust the legal education accordingly in order to adopt the changing world. (jd student, 2019) vi. conclusion this article offered a polemic against legal education in the hong kong special administrative region, in the spirit of the critical legal studies movement of the midto late 20th century, and utilised a narrative methodology whereby hong kong law students conveyed – in their own words – the power struggles they experience and observe in higher legal education and training, and the legal profession. the narratives presented in this article were collected over a period of four years, during which time a selection of postgraduate law students from one of the (three) higher education institutions responsible for legal education and training in hong kong were asked to reflect upon their legal studies and future roles as legal professionals with reference to the 1983 self-published pamphlet by duncan kennedy, entitled “legal education and the reproduction of hierarchy: a polemic against the system”. kennedy’s essay offered a critical analysis of the role of legal education in american social life at that time, and the manner in which it reproduced hierarchy in law, legal education, the legal profession, as well as in society generally. curiously, the narratives of 21st century hong kong law students presented in this article reflect many communalities with the views and experiences of duncan kennedy. whether perceived or real, the observations, experiences and remarks of postgraduate law students (jd, llm and phd) at the school of law, city university of hong kong, professed of the various hierarchies they face on their career path to becoming a legal professional in hong kong. class, social and economic inequalities, an overt focus on grades and academic achievement, law school rankings, and a pervasive “business first” attitude not only mirror the observations of duncan kennedy in his seminal 1983 text entitled “legal education and the reproduction of hierarchy: a polemic against the system”,128 but also seem intensified in the more condensed locale of hong kong. one student remarked that legal education and training, as well as legal practice in the hong kong special administrative region, are largely “the game of the elite” (jd student, 2019), while another explained as follows: 128 kennedy (n 1) 1. the denning law journal 147 the situation in hong kong is similar to the usa, albeit more tense and competitive in hong kong due to a small market and a large number of law graduates. (jd student, 2016) the goal of the jurisprudence assignment requiring of hong kong law students to reflect on their legal studies with reference to the duncan kennedy text was modest. maybe it was just to give students the opportunity to critically reflect on, and be honest about the hierarchy in which they have become an unintended participant. indeed, most students seemed constrained and conditioned by the hierarchies of law school life and legal practice in which they found themselves: honestly speaking, before reading kennedy’s article i was ‘unaware’ of such hierarchy. i was ‘unaware’ of it because i have already adapted to such an ‘ecosystem’. sadly, i do not think that i, as a student, can change anything at all. perhaps the only thing i should do is to better equip myself, so that i can have a better chance to achieve a higher hierarchy. (jd student, 2016) truth be told, i as a student, will still prioritise my gpa over anything else; so, i do appreciate this opportunity to be honest because such hierarchy is more than a fact in hong kong as it has been entrenched into the cultural fabric of hong kong. (jd student, 2018) because what, if anything can be done once we have identified that these hierarchies as described by duncan kennedy in 1983 united states of america, also (still) exist in the hong kong special administrative region? …it is impossible to change it.” (jd student, 2018) …is deeply rooted in the nature of the society therefore it is unavoidable and difficult to have a radical change. (jd student, 2018) …we [are] disgusted by hierarchy, but we are…compelled to participate. (llm student, 2018) however, rank seems to be a culture that has been pre-determined and ingrained in people in the legal industry since a long time ago. ultimately and inevitably, the legal education system in hong kong will continue to produce hierarchies unless a drastic change in the system occurs. (jd student, 2019) once climbed up to the top of the hierarchy, no one will make a change, because they have already been the biggest stakeholders. as thus, reproduction of the hierarchy sets in. (jd student, 2019) we know the problem of the system but we do not have the courage to start the revolution because we all depend on and benefit from the hierarchy, and 148 legal education and the reproduction of hierarchy: a contemporary asian reading of a seminal text the change actually makes us afraid…maybe the unchanged system itself is the best answer to the question. (jd student, 2018) duncan kennedy in his 1983 essay made recommendations as to how legal education and training can be reconceived to address some of the hierarchies he identified. yet, kennedy’s 1983 essay failed to bring about any real change in how law schools go about their business as cogs in the apparatus of social hierarchy. this futility was also noted in the student narratives informing this article: i would not suggest that legal education hierarchy to be hated, at least we are conscious of what we are doing. (jd student, 2018) hierarchy inevitably exists, yet it only affect us if we allow it to be so. while i cannot alter the external parties’ perception of me, i refuse to subordinate to the system by believing that i stand lower or higher than the others because of my gpa and background. so at least, in my heart, i am no longer a part of it. after all, whether this legal hierarchy is a fact or a myth, simply depends on how we view it. (jd student, 2018) the narratives included in this article seemingly rather suggest that a good starting point is to explicitly identify and recognise the hierarchies that exist in law, legal education and legal practice. the problem is ultimately “not whether hierarchy is there, but [rather] how to understand it, and what its implications are for political action”.129 this too was recognised by duncan kennedy, who explained: it is not important for our purpose here to get the picture just right – no one really knows what’s going on anyway. the point is rather that some version of the hierarchical reality of the bar impinges on everything that happens to students from about the middle of the first year through graduation. one cannot grasp the political significance of legal education without understanding that the future is present within every moment of a student’s experience. students themselves, through their activities after they graduate from law school, reproduce this very world, with amazingly little change from generation to generation. the system is there only because they remake it anew every day. they do this in part because law schools persuade them that it is the best possible system, while at the same time disabling them, individually and 129 kennedy (n 1) 93. the denning law journal 149 collectively, from doing anything effective against it if the ideology doesn’t “take”.130 it is submitted that ultimately all of us who find ourselves participants in this hierarchy, whether intended or unintended, must take responsibility for our “hierarchical behaviour”131 because: [w]hat is really sad is that inequality and injustice within legal profession is the biggest departure from law itself. what is needed is to think about law in a way that will allow more people to enter into it, to criticize without utterly rejecting it and manipulate it without self-abandonment. (phd student, 2019) 130 kennedy (n 1) 60. 131 kennedy (n 1) 75. the denning law journal 281 denning law journal 2007 vol 19 pp 281-284 book review lawless world: making and breaking global rules philippe sands (penguin books, london 2006) paperback, pp 432, isbn 9780141017990, £8.99 jason de mink* this being the first book that i have ever read dedicated exclusively to international law, i was not certain what to expect. i did not feel disappointed or out of my depth with “lawless world” however, as professor sands writes clearly and authoritatively on subject-matter which will be quite familiar to most readers: the pinochet trial, the kyoto protocol, trade rules, foreign investment, abu ghraib and guantanamo, the iraq war and torture. professor sands alerts us to the fact that it is only since the attacks of 11 september 2001 that international law has become of such enormous interest throughout the world. it is a topic that had received little attention in the mainstream media, and the few discussions of u.n. rules or international treaties had made the concept appear to be the faraway province of dusty academics (p 1). however, the reader is made aware that the global landscape has changed. whether a war can be started on the basis that another country has violated international law or whether in defence of international standards, international law changes from something intangible and remote to a highly significant area of knowledge (p 22). in introducing his subject, professor sands has elected not to lead off with the headline-grabbing chapters of the iraq war (chapter 8) and guantanamo bay (chapter 7: guantanamo: the legal black hole) but chooses first to familiarise the reader with the history of international law, illustrates historical developments in this area (chapter 1: international law: a short and recent history) and sets out the role international law will continue to play in the future in areas including for example environment (chapter 4: global warming: throwing precaution to the wind ) and terrorism (chapter 9). this is certainly not a book that covers only old or newsworthy ground. the chapters on the processes for dispute resolution via the appellate review body of the world trade organization and the world bank’s international * ba, llb, llm (cape town), lecturer in law, university of buckingham. book review 282 centre for the settlement of investment disputes (chapter 6: a safer world, for investors) are particularly likely to offer fresh and useful information for the majority of readers. these chapters highlight the remarkable and bewildering fact that the united states is among the strongest supporters of these highly significant and influential international bodies while remaining among the strongest opponents of the new international criminal court (chapter 3: a new international court). professor sands considers that the attitude of the united states to the international criminal court (icc) is symptomatic of its cynical attitude to international law in general (p 48). the icc now binds over 100 countries, but the united states, russia and china have not joined. the decision of the united states to exclude itself is particularly ironic, for it had historically supported the introduction of a court for the international prosecution of war criminals after world war i, with president woodrow wilson advocating the indictment of kaiser wilhelm ii of germany (p 49). but as professor sands points out, the icc that the united states once envisaged was a court that could be controlled by the permanent members of the un security council (p 57).1 only they could decide which cases would be referred to the icc, allowing the application of political pressure and undermining the independence of the court. however, when proposals emerged for an independent prosecutor who could bring cases under his/her own authority, the united states demurred and since then president george bush’s administration has consistently worked against the icc. as professor sands puts it: ‘disdain for global rules underpins the whole enterprise’ (p 222) unless they serve the commercial best interests of the u.s., in which case they are ‘strongly and consistently’ supported (p 119). these are just a few of the fascinating issues professor sands investigates in effortless detail. individually they may all seem like rather disparate elements but this book elegantly makes the point that they are all inextricably linked, with the relevance and importance of international law in modern society being constantly highlighted. professor sands comprehensively illustrates that the study of history is necessary to avoid repeating past mistakes.2 he also continually demonstrates the significance of this principle in modern times and the egregious consequences for those who fail to acknowledge it. 1 by means of a veto. 2 the origins of this statement can be found in the writings of george santayana, a spanish-born american author of the late nineteenth and early twentieth centuries. the exact phrasing is: ‘those who cannot remember the past are condemned to repeat it’, taken from reason in common sense, the first volume of his book the life of reason, charles scribner's sons, new york, 1905, p 284. the denning law journal 283 he lays the historical foundations by grounding this book in the atlantic charter of 1941 (p 8). this was the manuscript that gave rise to the origins of modern international law and it is set out in its entirety in this book. it was under the mantle of this groundbreaking document that the world was to be rendered a freer, happier place and it was with optimism and a newfound fervour that roosevelt and churchill approached the new world order. their combined efforts rapidly brought into being the un charter,3 the universal declaration on human rights,4 the genocide convention,5 and the general agreement on tariffs and trade,6 putting in place rules and systems limiting the use of force, protecting human rights, and establishing a framework for global trade and international economic integration (p 10 – 11). professor sands fast-forwards 60 years and contrasts current events with the tenor and tenets of the atlantic charter as espoused by its signatories. his conclusion is that the successors of roosevelt and churchill are seriously lacking in many ways and have unequivocally turned against the very international order they helped create (p 11). given that he has been a participant in some of the seminal international law cases and issues he reviews, professor sands is well placed to offer a frank, open and authoritative perspective. he does so engagingly and his excellently detailed description of the proceedings in the pinochet case in the house of lords, in particular, places the reader in the courtroom with him (chapter 2: pinochet in london). he also memorably depicts the proceedings at the various climate change conferences where he acted as a legal adviser to the delegation of st. lucia and emphasises the importance and influence of forceful personalities that take precedence over the rules when arriving at a decision in such forums (chapter 4: global warming: throwing precaution to the wind). his descriptions of these proceedings focus very little on his own involvement, and this self-effacing style reinforces the wider significance of the events he depicts. professor sands is certainly a passionate advocate for global fair play. he has attempted to highlight the audacity of the main protagonists in the war against terror in order to inform a wider debate. the examples he provides of their cynicism are breathtaking. it is clear that they have mastered the ability to completely dismiss or ignore established rules and laws to their own end. the chapter dealing with the u.k. attorney-general’s legal advice on the war in iraq is particularly enlightening and offers major insight into the machinations of whitehall (chapter 12: this wretched legal advice). 3 1945. 4 1948. 5 1948. 6 1947. book review 284 this is an excellent, highly readable book because it pulls no punches. but it is not groundlessly scathing in its analysis of the conduct of the united states and britain. the author is able to support all of his contentions authoritatively and does so quite ruthlessly. however, the reader is not compelled to reach any particular conclusion. the author offers the facts and his opinions but leaves room for debate and argument. he willingly presents the arguments against a system of international law, and is acutely aware of its many shortcomings, particularly when attempting to apply a single body of rules across diverse societies and economies. the continuous strand that runs throughout this book is that the world today is generally an ordered and peaceful place thanks to decisions taken generations ago to regularise global dealings. however, the goals of roosevelt and churchill are not yet complete and are under serious threat. we need to build on these past successes in order to ensure a better future. professor sands eloquently makes the point that the current trend of projection of power in contravention of international rules can lead to a global catastrophe. we need to study our past if we hope to avoid a “lawless world” in our future. this thoroughly worthwhile and thought-provoking read serves to sharply focus the mind on the people we put our faith in to govern us. its contents are of enormous significance to us all. the denning law journal 285 denning law journal 2007 vol 19 pp 285-289 book review human rights and religion: the islamic headscarf debate in europe dominic mcgoldrick (hart publishing 2006) pp 320, paperback isbn 1 84113 652 2, price £18.95 susan edwards∗ dominic mcgoldrick’s human rights and religion: the islamic headscarf debate in europe which captures the mood and the fixation of a contemporary concern, could not be more timely. no doubt if his publishers considered this project marginal and peripheral in its initial stages of manuscript writing, events upon and after its publication have determined its subject matter as highly relevant and mainstream. it is without doubt the only authoritative book on the subject. its publication bursts upon a scene where the issue of dress codes at school and in the workplace have become as much publicised and politicised in the uk as they were in france in 2004. those of us who were surprised by the intensity of the french headscarf debate are now equally perplexed by the centrality and intensity of interest that pervades the dress code debate at school and at work, in the uk, in 2007. mcgoldrick asks, not surprisingly, what is all the fuss about (p 12), and as he puts it, ‘why is the islamic headscarf-hijab so worrying’ (p 12). in exploring this question his narrative begins with an interrogation of the meaning of the hijab in an attempt to unveil the basis of those worries. consideration of the meaning of the hijab, from the subject position of those who wear it and those who do not, dominates the first chapter in which mcgoldrick demolishes the presumption that the meaning of the hijab is monolithic. in so doing, he draws on many scholarly writings quoting for example from f el gundi’s veil: modesty, privacy and resistance1 where el gundi writes, ‘the veil is a complex symbol of many meanings. emancipation can be expressed by wearing the veil or by removing it. it can be secular or religious. it can represent tradition or resistance.’ (p 6). mcgoldrick also draws on the work of seyla benhabib the claims of culture equality and ∗ professor of law, university of buckingham, barrister, door tenant, clarendon chambers, 1 plowden buildings, temple, london. 1 (oxford berg 1999) 172. book review 286 diversity in the global era.2 benhabib points out that the hijab signifies a complexity of meaning including amongst them submission, ambivalence, freedom, protection from intrusion of men and is also a powerful statement of opposition. mcgoldrick explores further the complexity of this multifacetedness especially in the chapter on ‘the islamic headscarf-hijab debate in france’, where he demonstrates how the hijab is not only a symbol of religious conviction, but also an expression of identity in the face of social exclusion and a potent statement of opposition to the west (p 62). juxtaposed to the variety of meanings the hijab holds for those who wear it mcgoldrick identifies that it is through the eyes of the observer, outside looking in, for whom it especially holds a fixed meaning signifying second classness and female subordination to men and religious fundamentalism. (p 15). mcgoldrick identifies what for him is so worrying which is that, ‘in europe in particular, the headscarf-hijab debate has become a microcosm of the debate on pluralism and multiculturalism’ (p 33). mcgoldrick develops his text with a careful analysis of the legal position on the hijab in european countries, considering, albeit briefly, the position in north america and in selected non-european countries. the emphasis, however, is on france, germany, switzerland, turkey and the united kingdom. in the chapter on france we learn that the french headscarf ban, contained in the law of 2004, prohibits the wearing of headscarves by school pupils (p 34), extending the ban to employees in educational establishments and government departments. in addition, women wearing the hijab are excluded from juries (p 74) as well as being refused a civil ceremony of marriage (p 75). the ban is said to be rooted in the religious neutrality of france with its historical origin of the religious neutrality of public schools (from catholicism) originating in the 19th century. it has to be said however, that the soundness of this logic is under question since it is being used to legitimate another very different purpose and in the very different france of 2007. as mcgoldrick writes, ‘it is something of a historical irony that the principle behind a law introduced to control the catholic church in 1905 is now used to control muslims’ (p 102). as mcgoldrick points out, there may be legal equality between religions, but the law of 1905 only recognises churches (p 49). in exploring why the hijab is at the site of such intense struggle he argues that the headscarf debate in france ‘has had a subtext of immigration and assimilation’ (p 102), a theme to which he later returns when he says that france talks of integration, rather than multiculturalism (p 521). not surprisingly, this is of particular concern to mcgoldrick, in a country where 8-9 per cent of french are muslims (p 53), where there is an absence of 2 (princeton, princeton university press 2002) 95. the denning law journal 287 muslims in politics and the media (p 56), and where ‘muslim women face multiple discrimination-gender, religious and racial’ (p 56). by contrast, mcgoldrick notes, in germany with no official religion and where muslims constitute three and a half million (p109), ‘the sight of girls, including pupils at schools, and women in headscarves-hijab, was relatively normal …’ (p110). the first case was that of fereshta ludin, a schoolteacher, who wished to wear the hijab and was denied a permanent post as a teacher because of her refusal to remove it. but the constitutional court ruled by five votes to three that german states had the power to ban only if they passed specific legislation on the matter. this was initially hailed as a victory for women teachers wearing headscarves in school, however, states soon passed legislation which introduced the ban (p115). in switzerland the case of dahlab v switzerland 19963 prohibited teachers from working if they refused not to remove the hijab thereby ‘protecting pupils by preserving religious harmony.’ in dahlab as mcgoldrick points out the problem with the hijab was that it was perceived as a ‘powerful external symbol’ (p 131). but it is the position of the hijab in turkey that mcgoldrick finds most fascinating (p 132). a country which is 99 per cent muslim also bans the hijab in schools and in higher educational establishments. no doubt much stems from ataturk’s programme of revolutionary social and political reform. in 1934 the dress regulations act imposed a ban on wearing religious attire and in the 1980’s and 1990’s went on to provide the leading strasbourg cases with karaduman v turkey 19934 which considered the question as to whether a university student who had completed her degree could be refused her certificate because, in the photograph that she had submitted of herself, she was wearing a headscarf (p 137). this refusal was upheld on the grounds that she had failed to comply with university regulations since the court held that this did not constitute an interference with her freedom of religion. similarly, in sahin v turkey 20055, the court considered whether a university student should be permitted to wear the headscarf in attending university lectures (p 140) mcgoldrick notes that the cleverly constructed argument in sahin (p 146) located her wearing of the headscarf ‘as a purely religious act,’ such that this meaning alone influenced the court in arriving at their decision, whereby they eschewed the myriad of other reasons why a woman might wish to wear the hijab. the complexity of the meaning of the hijab did not escape judge tulkens as was evident in her dissenting judgment as she said: 3 dahlab v. switzerland, (application no.42393/98), echr 2001-v. 4 karaduman v turkey (1993) 74 dr 93. 5 leyla sahin v. turkey, (application no. 44774/98), judgment of 29.6.2004ehrr 8 [2004]; 10 bhrc 590, [2006] elr 73. book review 288 “turning to equality, the majority focus on the protection of women's rights and the principle of sexual equality (see paras [115] and [116] of the judgment). by converse implication, wearing the headscarf is considered synonymous with the alienation of women. the ban on wearing the headscarf is therefore seen as promoting equality between men and women. however, what, in fact, is the connection between the ban and sexual equality? the judgment does not say. indeed, what is the signification of wearing the headscarf? as the german constitutional court noted in its judgment of 24 september 2003,6 wearing the headscarf has no single meaning; it is a practise that is engaged in for a variety of reasons. it does not necessarily symbolise the submission of women to men and there are those who maintain that, in certain cases, it can even be a means of emancipating women. what is lacking in this debate is the opinion of women, both those who wear the headscarf and those who choose not to.”7 (p163-4). although the book focuses on the headscarf debate it goes beyond headscarves and considers the way in which states are seeking to restrict other forms of religious attire. mcgoldrick considers at some length the position in the uk with regard to islamic headscarves focusing on the recent ‘jilbab case’ where shabina begum, a pupil at denbigh high school in luton wished to wear a long dress to school but was prevented from so doing, and where the house of lords ruled that her right to religious freedom had not been infringed. he also discusses the situation in the netherlands where the dutch government is considering banning the burqa/niqab (face covering) and where specifically utrecht city council is planning to stop social security benefits to women who wear the burqa. mcgoldrick has written an important book which goes beyond a scholastic narrative and attempts to grapple with the complexity of meaning attached to wearing islamic dress not only by the wearer but also as it is understood by the observer. ‘because of the way it is perceived and understood, the symbolism attached to this simple piece of clothing worn by women has managed to place it within a series of major contemporary issues identity, multiculturalism, liberalism and religious fundamentalism’ (p 308). 6 federal constitutional court of germany, judgment of the second division of 24 september 2003, 2bvr 1436/042. 7 para [11], per judge tulkens. the denning law journal 289 after going to press, an employment tribunal in the uk has decided in the case of a teacher who wished to wear the face veil, that she was not unfairly discriminated against in being prevented from so doing.8 a pupil at a buckinghamshire school has been banned from wearing the niqab.9 however, it should also be pointed out that the headscarf originated in the christian culture and is worn by women throughout the world and especially by women in catholic countries. it should also be asked (hijab!, niqab!, jilbab!), why is there a revivalism in these expressions of dress, which cannot merely be explained by religious conformity or sexual oppression. it is worthy of note, too, that the headscarf worn by those at the centre of this fixated interest is worn in exactly the same way as an enduring piece of 1960’s fashion iconography sported in the us especially by the late jackie o, and in the uk by amongst others, queen elizabeth 11, and princess margaret. all of this suggests perhaps that this interest is less about the garment and more about its signification. 8 see the case of aisha azmi the guardian, march 31, 2007. 9 r (on the application of x) v the headteacher of y school and another, queen's bench division, judgment: approved by the court for handing down (subject to editorial corrections), [2007] ewhc 298 (admin), [2007] all er (d) 267 (feb), (approved judgment). the denning law journal 291 denning law journal 2007 vol 19 pp 291-293 book review ‘true tales of trying times legal fables for today’ robert e. rains (wildy, simmonds & hill publishing) isbn 9781898029908 £12.95 mary welstead∗ for those of us who became lawyers because we loved story telling in all its forms, professor rains’s book of legal fables is a feast first, to be voraciously devoured as a ravenous gourmand and second, to be delicately sampled, as a selective gourmet, and dipped into in the years to come. to add to the metaphor, justice michael eakin of the pennsylvania supreme court, in his foreword to professor rains’s book, uses the language of the wine connoisseur to describe the fables, ‘… the wine is sweet and quite palatable. it is well worth the drinking.’ professor rains, who was originally in private practice, now teaches law students in pennsylvania and is also engaged in helping those who cannot afford legal fees to seek justice. all are appropriate occupations for one who spends what spare time he has in writing fables and trying to understand, with some difficulty, the legal profession and why they do what they do. in his book, professor rains has selected a number of cases from the us courts. he succinctly narrates each story, many of which are replete with the black humour common to matters of law, in a gentle wry manner, not unlike the story telling of the memorable pg wodehouse. at the end of each story, in pithy verse form, he extracts the moral for the reader. these stories are true fables; their subject matter ranges widely over all areas of law but for this author, as a family lawyer, the section on ‘love and war’ was perhaps the most appealing. the story of the woman who resided in the county of suffolk in the commonwealth of massachusetts will give the reader a brief sample of the fun to be found in professor rains’s writings. the woman wanted a baby and the testosterone-fuelled man, sex: “the man had four children by a prior marriage, and the woman had none. the man said that the woman should not worry because a fortune-teller had told him that he would ∗ bsc (econ) (lond), ma, phd (cantab), diped (london): visiting professor and director of university of buckingham foundation. book review 292 have six children. so the man and the woman did have sex, but no new children arrived. after several months of having sex, the man remembered that he had forgotten to tell the woman that he had also had a vasectomy. but, nothing ventured nothing gained, they kept having sex anyway, until one day the man found someone else. this made the woman mad and she stopped having sex with him. then the woman sued the man for all sorts of legal misdeeds, such as infliction of emotional distress and fraud and battery, for not having told her about his vasectomy in the beginning. after all, he knew her biological clock was ticking. the court was, of course, shocked – shocked! – that a man might say, or not say, things to a woman in a deceitful manner to try to get her to have sex with him, but reluctantly concluded that such matters are beyond the expertise and jurisdiction of our legal system. moral: choose well with whom you copulate if you intend to populate; for even if you raise a squawk, the law won’t punish pillow talk.” without wishing to spoil the readers’ future pleasure by revealing too much of the book’s contents, one or two examples of the moral endings may intrigue and serve as appetizers. “the party at grandma’s and who was to blame moral: when you break into grandma’s pad, be smart and bring your friends along; then if the party turns out bad, the law can’t prove just who did wrong.” “the booty that brought down the bandit moral: when filching goods, don’t take the chance of stuffing bottles down your pants, because if you are seen and chased, they’ll slow you down and go to waste. so, as you choose which goods to lift, recall the race goes to the swift.” the denning law journal 293 the fables are beautifully illustrated with the delightful simple line drawings of the ea jacobsen partnership, a visual presentation partnership of two sisters. this is a book which all lawyers, the embryonic, the aging and cynical practitioner and the law professor, should acquire and read because the whole point of fables is that they teach us all lessons in a more palatable form. the embryonic lawyers will realise that, in spite of reading learned treatises on statutory interpretation, the law is as much about the bizarre nature of human relationships which cannot easily be resolved by what they learned at law school. they will also learn the advantages of remembering the facts of legal decisions in the form of fascinating and, frequently amusing, stories with a moral to them. the more cynical older lawyer will, hopefully, be reminded that the precedents they use involve, not merely the anonymous characters symbolized by the legal citation of m v m (2007), but real human beings who have lives to live outside the confines of the court. on a bad day, they may also be reminded that the law can be fun. for the academic professor, she will learn that jurisprudence can be as much about the moral lessons to be learned from fables as it is about the minutiae of angels dancing on a pin head contained in the works of oxford legal philosophers. as a result, her students will probably have a happier time at law school. normal human beings will also enjoy the book and in addition have their prejudices, that the law is totally comprehensible to ordinary mortals, proven. for this author, the book simply remains confirmation that life is more than anything else about story telling. professor rains is to be congratulated and, hopefully, encouraged to provide yet more fabular food on which lawyers may feast. unincorporated associations: property holding, charitable purposes and dissolution 189 denning law journal 2010 vol 22 pp 189-196 case commentary surviving a fall into the deep end patchett and another v swimming pool & allied trades association ltd [2009] ewca civ 717 john halladay∗ in spite of the vast increase in contracts entered into over the internet, there are still very few appellant level cases concerning this process. it was therefore of great interest when the court of appeal gave its decision in patchett and another v swimming pool & allied trades association ltd [2009] ewca civ 717. facts mr and mrs patchett wanted to have a swimming pool constructed in their garden. as many of us would do, mr patchett did a google search and came across the defendant’s website. the defendant, swimming pool & allied trades association ltd (“spata”), was an incorporated trade association who was owned by its members. these members included most of the major pool installers trading in the united kingdom. from the spata website, mr patchett obtained the details of three pool installers from whom he sought direct quotations. he eventually negotiated with one of these, crown pools limited (“crown”) and agreed a price of £55,815 for the installation of a pool and for related work to the garden. crown started on the work but did not complete it. crown wrote to the claimant stating that they had ceased trading. this required the claimants to have the work completed another contractor resulting in them paying an additional £44,000. as they could not obtain a remedy against crown, the claimants sought to recover from spata based on the statements made on its website. there were 10 unnumbered paragraphs on the spata homepage, two of which were crucial to the decision. they stated (the numbers were added by the trial judge): ∗ senior lecturer in law, university of buckingham, llb [toronto], llm [cantab], barrister and solicitor, law society of upper canada. case commentary 190 “(6) spata pool installer members are fully vetted before being admitted to membership, with checks on their financial record, their experience in the trade and inspections of their work. they are required to comply fully with the spata construction standards and code of ethics, and their work is also subject to periodic re-inspections after joining. only spata registered pool and spa installers belong to spatashield, spata's unique bond and warranty scheme offering customers peace of mind that their installation will be completed fully to spata standards – come what may! (8) spata supplies an information pack and members lists which give details of suitably qualified and approved installers in the customer's area. the pack includes a contract check list which sets out the questions that the customer should ask a would-be tenderer together with those which must be asked of the appointed installer before work starts and prior to releasing the final payment.” it turned out there was an error on the website and crown was not a full member of spata. therefore the patchetts could not claim under the spatashield warranty scheme. the claim was therefore made on the basis that paragraph six was a negligently made statement to the effect that if you contracted with a spata member (as identified on the website), you would be protected “come what may”, that the claimants entered into a contract because of this statement and this resulted in a loss to them. therefore spata should be liable on hedley bryne prinicples for the economic loss suffered. trial decision the trial judge, his honour judge worster, found for the defendants. while there may have been a negligent representation, the defendant would have expected further inquiry to be made before entering into a contract, and indeed paragraph 8 positively encouraged further inquiry. the claimant could not pick and choose parts of the website and so the statement in paragraph 6 was subject to the suggestion to apply for an information pack in paragraph 8. had the claimants asked for an information pack, it would have been clear that crown was not a full member of spata and so the spatashield protection would not apply. the trial judge further went on to say that even if there was liability, the claimants were 100% contributorially negligent because of their failure to make further inquiry about crown and its position with spata. the denning law journal 191 court of appeal the majority in the court of appeal dismissed the appeal but this was subject to a dissenting judgment. there was broad agreement as to the law to be applied and the difference was in the application of the law to the facts of the case. majority decision lord clarke mr gave the lead judgement which was agreed to by scottbaker lj. the case was accepted to be one of negligent misstatement1 and so the claimant has to show that his economic loss was occasioned by a negligent misstatement made by the defendant for which the defendant would in law be held responsible. the circumstance where the defendant would be held responsible was more difficult to define. lord clarke found that the phrase “voluntary assumption of liability” was of limited use as it merely stated that the defendant’s actions were voluntary and that the law implied that the defendant assumed responsibility. but he did find that the test of liability was an objective one.2 he also found the three-fold test in commissioners of customs and excise v barclays bank plc3 to be of use which required: “…whether loss to the claimant was a reasonably foreseeable consequence of what the defendant did or failed to do; whether the relationship between the parties was one of sufficient proximity; and whether in all the circumstances it is fair, just and reasonable to impose a duty of care on the defendant towards the claimant.” lord clarke did agree with the trial judge that these were “blunt tools” but still were useful to “steer the mind to the task at hand.”4 he then gave a number of factors which needed to be considered when deciding whether the defendant was to be held responsible. he stated: “in summary form those factors were the precise relationship between adviser and advisee; the precise circumstances in which the information relied upon came into existence; the precise circumstances in which that information was communicated, 1 it did not appear that the possibility of a claim in contract was argued. 2 adopting the reasoning of lord steyn in williams v natural life health foods ltd [1998] 1 wlr 830, 836. 3 [2006] ukhl 28, [2007] 1 ac 181. 4 quoting kirby j in perre v apand pty ltd (1999) 198 clr 180, para 284. case commentary 192 considering the purpose or purposes of the communication both as seen by the adviser and as seen by the advisee, the degree of reliance which the adviser intended or should reasonably have anticipated would be placed on its accuracy and the reliance in fact placed on it; the presence or absence of other advisers; and the opportunity for disclaimers.”5 in applying the threefold test, lord clarke found no difficulty in finding that the consequences were reasonably foreseeable. he therefore focussed on the other two factors. proximity or the special relationship the great strength of the claimant’s case was that he received his information from a website whose very purpose was to attract potential customers and induce them to use a spata member. the claimant acted in reliance on this website to his detriment. while a website could be read by a large number of people,6 this website was targeted for a specific purpose and aimed at a defined class of potential pool buyers. the website made very definite statements about the worthiness of the spata members which it summarised with the broad statement, “their installation will be completed fully to spata standards – come what may!” against this strong argument was the need to look at the relationship between the parties. the paradigm relationship was one of adviser and advisee. while the parties to this action were not strangers, lord clarke felt it was wrong to say that they had a relationship, let alone a special one. while mr patchett said he relied on the website, lord clarke found that he should not have done so, especially as the website in para 8 invited further investigation. fair and reasonable to impose liability the main argument made against liability looked at the impact of para 8 of the website. here potential buyers were invited to obtain an information pack and a members list. the statements made on the website were subject to the expectation that potential buyers would apply for this information pack 5 at para 16 adopting the reasoning of arden lj in precis (521) plc v william m mercer ltd [2005] ewca civ 114, [2005] pnlr 511 and of sir brian neill in bcci (overseas) ltd v price waterhouse (no 2) [1998] pnlr 564 at 587-8. 6 and was therefore subject to cardozo, cj famous dictum that there should not be “liabilty in an indeterminate amount for an indeterminate time to an indeterminate class” ultramares corporation v touche (1931) 174 ne 441 at 444. the denning law journal 193 and had the patchetts done so, the mistake as to the membership status of crown would have been corrected. to have expected to have insurance against the insolvency of spata members without reading the details of the insurance policy was unreasonable. so para 8 has two aspects. it helps show that there is no special relationship created by the website as there is an expectation of further inquiry. as well, it acts to disclaim liability unless there is further enquiry taken in addition to reading the website. contributory negligence the trial judge had found that had there been a duty of care, spata would escape liability as the failure of the claimants to further investigate about the bond and warranty scheme and the judge fixed their contributory negligence at 100 per cent. as the matter was not necessary to the decision, lord clarke did not dwell on the matter but stated he would have fixed contributory negligence at 75 per cent. dissenting judgment lady justice smith reached the opposite conclusion. in a concisely worded dissent, she made no complaints about the statement of facts or the exposition of law given by lord clarke. she merely applied the law differently. as to proximity, she found no problem in their being a sufficiently proximate relationship. the spata website was not addressed to all and sundry. it was specifically aimed at the type of person who, like the claimants, wished to install a pool. as to whether it was fair and reasonable to impose a duty of care, the question was how a reasonable person would treat the website. here, spata held itself out as the trustworthy regulator who set standards and vetted members. it was entirely foreseeable that someone would rely upon them as the website invited readers to do. the main problem to this view put forward by the trial judge and the minority was para 8 and the availability of the information pack. smith, lj broke down para 8. the first sentence said a list of members could be obtained. but the website gave a drop down list of members so the reader would think it unnecessary to write for such information. the second sentence offered a checklist of questions for the customer to ask. but the customer might well think he could work out for himself the questions that needed to be asked. but nowhere in para 8 was anything which made it a case commentary 194 mandatory step or which linked obtaining an information pack to the availability of the spatashield insurance. smith, lj was willing to agree with lord clarke that damages should be reduced by 75 per cent. the failure to make further inquiries as to the availability of the insurance and to check that crown sported the spata logo was negligent and would bring into play the doctrine of contributory negligence. comment a) internet savvy one of the important aspects of the case is that it starts to deal with the sort of liabilities one can incur when operating on the internet. the fact that you can possibly be liable for negligent misstatements on a website is important, even if there was no liability in the case. but also of interest is how the internet environment is so accepted by the members of the court that phrases like “came across spata’s website via google”7 or “the home page has a series of drop down menus”8 are included in the judgment without any explanation or comment, in the same way that an advertisement in the pall mall gazette9 might have been referred to in previous years. as well, the court has little difficulty using non-internet cases into an internet context. but the application of such cases in an internet context led to radically different views between the majority and dissenting judgments. b) contract or tort the case was entirely argued using tortious principles of negligent misstatement under hedley bryne. an interesting comparison case is bowerman v association of british travel agents10 in this case, the claimant had booked a holiday through an abta travel agent. the travel agent went bankrupt and abta as sued using the notion of a unilateral contract from carlill v carbolic smoke ball company.11 there was a poster in the travel agent’s office which stated: “where holidays...have not commenced at the time of failure [of the abta member], abta arranged for you to be reimbursed the money you have paid in respect of your holiday 7 para 3 of the judgment. 8 para 5 of the judgment. 9 as in carlill v carbolic smoke ball company [1893] 1 qb 256. 10 [1996] clc 451. 11 ibid. the denning law journal 195 arrangements.”12 this was treated as a unilateral offer that if you booked through the abta agent, abta promised to protect you from the insolvency of that agent. spata did not make such a clear statement but the similarities of the cases are striking. in both, the trade association makes a public statement. that statement is clearly designed to encourage customers to use the services of members of the trade association. the statement can be viewed as a promise that the association guarantees the member, “come what may!” the argument in contract was dismissed in four words by lord clarke when he stated: “no warranty was given.”13 it is unfortunate that more guidance was not given to help distinguish the two cases. c) contributory negligence while all members of the court agreed that the patchetts were guilty of contributory negligence, there was no real explanation of how this conclusion was reached. it was in any event obiter as the majority had found no liability but smith, lj agreed to it to limit the damages she would have awarded. the logic is a bit hard to follow. if the patchetts reasonably relied on the spata website, why would they be negligent by not looking for more information. a finding of liability seems to imply that the patchetts had done enough.14 d) whole of the website one of the key aspects of the case was the inter-relation of paragraphs 6 and 8 on the website. these were set out of the same page of the website and would presumably have been viewed at the same time. both the trial judge and lord clarke said that it was necessary for the website to be considered as a whole. this is a bit frightening given the size of some websites and the complex structures possible on them. even for an experienced user, it would be hard to guarantee that they had found all of the words on the website, let alone taken them into account when making their decision. while it was not really in issue in the case, it can only be hoped that lord clarke’s language 12 [1996] clc 451, court of appeal [civil division], 21 november 1995, lexisnexis, official transcripts 1990-1997. 13 para 29. 14 in gran gelato v richcliff [1992] 1 all er 865, it was found that contributory negligence was available as a defence under s 2(1) of the misrepresentation act where there was concurrent liability under hedley byrne. however, it was also found that “carelessness in not making other inquiries provides no answer to a claim that the plaintiff has done that which the representor intended he should do.” (at p 876). see also redgrave v hurd (1881) 20 ch d 1. case commentary 196 will not inspire website designers to hide away exclusionary language in the remote corners of their sites.15 conclusion patchett gives a good example of how the courts will approach questions of liability arising from commercial transactions conducted using the internet. it shows the courts ready to take on such problems using established common law principles. but it also shows there are many unanswered questions. 15 if the effect of the clause was treated as an exclusion clause, the reasonableness test under the unfair contract terms act 1977 would include consideration of “whether the customer knew or ought reasonably to have known of the existence and extent of the term...” under para (c), schedule 2. therefore the positioning of the clause on the website could be taken into account as part of the reasonableness test. case commentary facts trial decision court of appeal majority decision proximity or the special relationship fair and reasonable to impose liability contributory negligence dissenting judgment comment a) internet savvy b) contract or tort c) contributory negligence d) whole of the website conclusion microsoft word 23 bs 2 stevens v2.doc 242 the denning law journal 2011 vol 23 pp 242-248 book review “the rule of law” tom bingham (allen lane, london 2010) 224 pp isbn 978-1846140907 irving stevens∗ writing this piece, in the aftermath of the worst civil unrest to have afflicted our major cities in a generation, i am struck by how infrequently “the rule of law” has been invoked by those who have spoken out in condemnation of the violence. in that respect, the riots of 2011 stand in marked contrast to those of 1985 and 1990, following the miners’ strike and the introduction of the controversial “poll tax” respectively, when politicians (for whom, evidently, the term was little more than a synonym for “law and order”) seemed to be falling over each other to assert that “the rule of law must prevail”. in some ways, this is surprising, since it is not easy to attribute any obvious political motivation to the majority of the 2011 rioters, as compared with their 1985 and 1990 counterparts. perhaps, so soon after the “arab spring”– supported as it was by most western democracies – such simplistic usage of the term is no longer tenable, even on the part of politicians. it would be nice to think so – indeed, it would be nice to think that, finally, there is recognition amongst the political classes of something that lawyers have known for generations, namely that despite–or possibly because of – the fact that “the rule of law” means different things to different people and is in consequence difficult to define succinctly, it cannot, nor should it, be reduced to a “soundbite”. the receptive reader of tom bingham’s incisive essay would, i am sure, share that recognition and, quite possibly, conclude – like bingham himself – that despite the difficulties described above, the rule of law continues to be “...one of the greatest unifying factors, perhaps the greatest, the nearest we are likely to approach to a universal religion”.1 thus, whilst the rule of law might remain an ideal, it is “...an ideal worth striving for, in the interests of good government and peace, at home and in the world at large.”2 ∗ llb (lond), associate dean, buckingham law school. 1 p 174. 2 ibid. the denning law journal 243 an ideal, perhaps, but as bingham points out, the rule of law has in fact been explicitly recognised in a recent – and, constitutionally speaking, very important– british statute. section 1 of the constitutional reform act of 2005 provides that the act “...does not affect (a) the existing constitutional principle of the rule of law; or (b) the lord chancellor’s existing constitutional role in relation to that principle.” furthermore, section 17(1) requires the lord chancellor, on taking office, to swear to respect the rule of law and defend the independence of the judiciary (which many, of course – including bingham – have argued is itself a feature of the rule of law or, at the very least, a precondition for its effective existence). thus, bingham (quite reasonably) suggests, “the rule of law” must mean something. and it is that meaning which he seeks to explore in this concise, but informative and provocative essay. the rule of law runs to 12 chapters, followed by a brief epilogue. these are assigned, in turn, to three parts of differing length, with chapters 1 and 2 (“the importance of the rule of law” and “some history” respectively) forming part 1, which sets the scene. in chapter 2, for instance, bingham suggests that, whilst not necessarily mentioning the concept by name, a succession of statutes and other “milestones” (as he describes them) have had, as their basis, one or another of the fundamental principles of which the rule of law consists: thus, the rule of law had in fact received a degree of “formal” recognition long before the constitutional reform act was passed. these “milestones” include magna carta, the bill of rights, habeas corpus, the abolition of torture and associated legislation, the petition of right and the us constitution, as well as the international declaration of human rights (in which, mention of the rule of law is explicit: as the preamble puts it “...it is essential.... that human rights should be protected by the rule of law”). in part 2 (chapters 3 to 10), bingham expands on the meaning of the rule of law and whilst (perhaps somewhat unfashionably) he takes the analysis of professor av dicey3 as an important starting point (that analysis is itself admirably summarised in chapter 1), he follows the approach of that other well-known protagonist, professor joseph raz, in proposing eight principles.4 several – but not all – of these (“the accessibility of the law”, for example, which is discussed in chapter 3) correspond broadly with one or another of raz’s principles. however, he also weaves dicey’s three-fold analysis into his narrative. this he does both explicitly (by including the principles of “law not discretion” in chapter 4 and “equality before the law”, in chapter 5) and implicitly. perhaps unsurprisingly, for someone who has held, at one time or 3 a v dicey an introduction to the study of the law of the constitution (mcmillan, 9th edn, 1945). 4 joseph raz “the rule of law and its virtue” in j raz the authority of law: essays on law and morality (oxford university press, 1997). book review 244 another, all of the most senior judicial offices in the land, he shares much of dicey’s confidence in the common law (at least as broadly understood) as an effective vehicle for the rule of law, but he is less wary than his predecessor of provision in other jurisdictions, including international law. thus, the other principles explored in this part of the book (chapters 6 – 10) involve “the exercise of power”; “human rights”; “dispute resolution”; “a fair trial” and “the rule of law in the international legal order”. part 3 of the book contains something of a surprise, at least as far as programming is concerned. as well as a (predictable) chapter on “the rule of law and the sovereignty of parliament” (which, though both considered to be fundamental, have frequently been described as “uneasy bedfellows”), bingham devotes an entire chapter – chapter 11, by far the longest in the book – to “terrorism and the rule of law”. but if this is a surprise, it is one of programming only. bingham’s analysis of the responses of the us and uk governments to the terrorist threat (and to the events of 9/11 in particular), highlighting the differences – and similarities – in their respective approaches, provides us with numerous telling instances of a failure on the part of the governments concerned to do much more than pay lipservice to the rule of law. such instances, he demonstrates, expose some of the “fault lines” in both societies which may (he argues) actually pose a threat to the rule of law. (bingham’s dismissal of the then prime minister tony blair’s statement after the london bombings in 2005 – and not only because of the (rather unfortunate) phrase “...let no one be in any doubt, the rules of the game are changing...”– is particularly telling in this respect). thus, whilst the uk comes out of it, in some respects, rather better than the us (thereby to some extent vindicating the diceyan argument that a codified, entrenched bill of rights is not necessarily more effective in protecting human rights than the common law) it still comes in for criticism, particularly for the restrictive legislative measures it has introduced, post 9/11; the apparent ease with which it resorted to prolonged detention of suspects without trial; the erosion of fair hearing guarantees; its willingness to engage in what bingham argues was an illegal invasion: and in what he describes as “a certain ambivalence” on its part over the use of torture. in chapter 11, then, the principles discussed in part 2 are further explored and, rather in the manner of a composer of symphonies or grand opera, bingham uses this penultimate chapter to draw together many of the themes (“motifs”) previously introduced and explored – or even merely hinted at–to consolidate and conclude his main argument. that bingham was of the view that (in the circumstances in which it occurred, without the necessary authorisation of the un security council) the invasion of iraq in 2003 was a violation of international law has already been noted. but that matter is discussed quite late on in the book: the “motifs” of which i speak begin to appear much earlier. the denning law journal 245 in chapter 7 (human rights), for example, speaking of the protections afforded us by the human rights act (hra) 1998, bingham argues that the rights concerned (which include the rights to life, to liberty and to a fair trial), are: “...“fundamental” in the sense that they are guarantees which no one living in a free democratic society should be required to forego; and that protection of these rights does not, as is sometimes suggested, elevate the rights of the individual over the rights of the community to which he belongs.”5 thus, bingham issues a corrective to those who, whether due to ignorance or for populist motives, tend to misrepresent the effects of the convention and hra – those who have suggested, for instance, that, because of the hra, the police may not put up “wanted” posters in respect of dangerous criminals, or that they have been obliged to provide the food of choice to a suspected criminal during a “standoff”, or that the prison authorities are obliged to supply a convicted and dangerous killer with pornography, or that state schools may not celebrate christmas. similarly, later in the same chapter, where speaking of the rights protected by the european convention; in particular the effects of article 14 (which provides that the enjoyment of those rights must be extended to all, equally and without discrimination on any ground such as sex, race, colour, language religion, political or other opinion) he says: “...it is unpopular minorities whom charters and bills of rights exist to protect. in almost any society, the majority (which usually includes the rich and powerful) can look after itself.”6 unlike many of the critics, however, bingham is measured – even charitable. he acknowledges that their criticisms are based on misunderstandings. however, those critics are not “let off the hook” completely; to them he addresses two simple questions: first, which of the rights protected by the convention/act would they discard? and secondly, would they rather live in a country in which these rights were not protected by law? another theme which he consolidates when dealing with the so-called “war on terror” is that discussed in chapter 9: “a fair trial”. few would nowadays argue against the proposition that the interests of a democratic society are best served by an independent judiciary, free from political 5 p 82. 6 p 83. book review 246 involvement, especially from the executive. (here, interestingly, bingham points out how, in recent times, instances of the possible “politicisation” of judges and their decisions appears to be more commonplace in the us than in great britain – the case of bush v gore, in which the presidency of the usa was effectively decided by the us supreme court, being just one example.) however, in chapter 9, bingham also makes the seemingly throwaway comment: “scarcely less important than an independent judiciary is an independent legal profession, fearless in its representation of those who cannot represent themselves, however unpopular or distasteful their case may be.”7 the point – implicit though it may be – seems clear. attacks on members of the legal profession, and others, who take it upon themselves to defend or to speak out for the human rights of individuals tried for (or even merely suspected of) acts of terrorism, have nowadays become depressing in their predictability and for their apparent vindictiveness and sometimes personal nature. to those who engage in such attacks, bingham sends a clear message: the rule of law requires that justice must not only be done but must also manifestly and undoubtedly be seen to be done in all cases, without exception, including those involving offences which attract the worst kind of opprobrium – child-abuse, for instance, as well as terrorism. (indeed–though bingham is not explicit on this – it is at least arguable that it is especially important that justice is both done and seen to be done in such cases.) after chapter 11, the final chapter – on “the rule of law and parliamentary sovereignty”– might seem something of an anti-climax. it is, it must be admitted, less immediately interesting or provocative than much that has gone before: indeed, it may be that, despite bingham’s claim that his book is not addressed to lawyers, the final chapter will go unread (or at least “unreread”) by many laypeople. but, on the other hand, the two principles – the rule of law and parliamentary sovereignty – are so fundamental, and their somewhat uneasy relationship so well-known, that the book might be thought incomplete without some comment on these matters. in the event, chapter 12 also contains something of a surprise: despite his credentials as one of its finest advocates, bingham clearly does not subscribe to the view (as argued by lord steyn in the hunting act case8, for instance) that parliamentary sovereignty is a “construct” of the common law. as he puts it: “...the judges did not themselves establish the principle (of parliamentary sovereignty) and they cannot, by themselves, change it”. thus, (paraphrasing professor 7 pp 92-3. 8 r (jackson) v attorney general [2005] ukhl 56; [2006] 1 ac 262. the denning law journal 247 goldsworthy) the judges cannot, even in the name of the rule of law, repudiate parliamentary sovereignty, for in so doing, they would be claiming for themselves the very authority they repudiate. the danger here is obvious – and bingham himself identifies it, when he observes “...our constitutional settlement has become unbalanced, and the power to restrain legislation favoured by a majority of the commons much weakened, even if, exceptionally, such legislation were to infringe the rule of law as i have defined it. this calls for consideration as a serious problem”. he goes on “the last ten or twelve years have seen a degree of constitutional change not experienced for centuries. important questions.... remain unresolved. one may hope that the sovereignty of parliament and its relationship between the rule of law may be seen as a matter worthy of consideration if, as i have suggested, there are some rules which no government should be free to violate without legal restraint.”9 thus, for bingham, the problem is not one which can be left to the judges to resolve, relying only on some legal “construct” to do so. if legal restraints upon the powers of parliament are to be imposed, they must derive from elsewhere – nothing less than a new constitutional settlement; a written constitution, incorporating an entrenched bill of rights. but (as he concludes): “to substitute the sovereignty of a codified and entrenched constitution for the sovereignty of parliament is, however, a major constitutional change. it is one which should be made only if the british people, properly informed, choose to make it.”10 when reviewing a book of this kind, it is customary to attempt to assess, in conclusion, the author’s success (or otherwise) in achieving the objectives he has set for himself. in this instance, that is not easy –partly, it must be said, because bingham is somewhat circumspect in this regard. in his preface (where such things are usually set out) he avoids any grand statement of intent: indeed, he even confesses that he, like most other people, had been unsure as to what “the rule of law” actually meant. accordingly, he says “in any event, i thought it would be valuable to be made to think about it”. 9 pp 169-170. 10 ibid. book review 248 no matter, then, that this readable, incisive and informative essay illuminates the subject in a way few have done, at least in recent years. the real question is: is the reader made to think about the rule of law? in answer, i think i can safely say that he – or she – most certainly is! for the purposes of right to self-determination, how does one define people in context of kashmir 47 the denning law journal 2011 vol 23 pp 47-64 of advocates, drunks and other players: plain tales from australia  the hon michael kirby ac cmg  of advocates when i retired from judicial office after 34 years service (13 of them as a justice of the high court of australia), i was richly rewarded for my labours by the practising bar. here in england, inner temple did me the honour of electing me a bencher. i was proud to follow peter taylor to that office. in australia, the australian bar association, the law council of australia and the governing body of my home bar, the new south wales bar association, conferred on me honorary life memberships. i say this not to boast but to illustrate the forgiving qualities of barristers for the assaults that judges inflict on them during service in the courts. i inherited the post as president in the new south wales court of appeal, the busiest full-time appellate court in australia, from judges of high talent but sharp tongues who made appearing before them an often fearsome and stomach-churning experience. 1 like lord taylor of gosforth, in whose honour this lecture is established, i came into the inner circle of the bench and bar from the outside. i could never take pleasure in the discomfitures of barristers, where such conduct could redound to the disadvantage of their clients‟ arguments. yet in my case, there was a still recent reason why the bar might have held a grudge against me. traditionally, by the common law, a barrister in england and australia, was immune from a suit in negligence, brought by a client, in respect of the barrister‟s professional performance in court. so much had been upheld by  delivered at inner temple, london on march 22 2011 as the peter taylor memorial lecture in honour of the late lord taylor of gosforth, lord chief justice of england and wales (1992-1997).  justice of the high court of australia (1996-2009); honorary bencher, inner temple; honorary fellow, society of legal scholars. the author acknowledges the assistance of michael munk, university of technology, sydney, in assembling materials. 1 a j brown “the „inevitable‟ judge” in i freckleton and h selby (eds) appealing to the future – michael kirby and his legacy (sydney: thomson reuters, 2009) p 49 at pp 62 and 67 (hereafter “appealing”). of advocates, drunks and other players 48 the high court of australia in 1988 in its decision in giannarelli v wraith. 2 in 2005, the principle in that case was questioned when a client brought proceedings in the supreme court of victoria against both his barrister and solicitor claiming that their conduct had been lacking in the exercise of reasonable skill, care and diligence, so as to render them each liable, in contract and tort, for monetary damages to the client. the case, d’orta-ekenaike v victoria legal aid, 3 took a very long time to present its important questions of legal authority, principle and policy to the nation‟s final court. ryan d‟orta-ekenaike had been charged in february 1996 with rape. in july of that year, following legal advice, he pleaded guilty. however, on arraignment, he changed his plea and stood trial in the county court of victoria. at that trial, his plea of guilty was led in evidence and the accused was found guilty by the jury and sentenced to three years‟ imprisonment. he applied to the court of appeal of victoria for leave to appeal against his conviction. that court held that the instructions given by the trial judge on the use that the jury could make of the guilty plea were inadequate. the conviction was quashed and a new trial was directed. at the second trial, the judge ruled that the guilty plea at committal was inadmissible in the circumstances. the jury found the accused not guilty and he was discharged. it was then that mr. d‟orta-ekenaike brought his civil proceedings in the county court of victoria against victoria legal aid (vla), which had acted as his solicitor, and against the barrister who had appeared for him at the committal proceedings and in his first trial. the pleadings alleged negligence, it being contended that both the barrister and the briefing officer of vla had negligently advised him that he did not have a defence to the charge of rape; that if he pleaded guilty at the committal he would receive a suspended sentence; and that, if he did not plead guilty there, he would be convicted and would receive a custodial sentence. this advice was said to have been given out of court, at a conference in chambers two days before the commencement of the committal hearing. the advice was repeated on the day the hearing began, resulting in the guilty plea. neither the solicitor nor the barrister had warned the accused that, if he pleaded guilty and subsequently sought to reverse that plea, it could be relied on by the prosecutor in the trial as an admission of guilt. the client relied on strong evidence that he was exposed to undue pressure and influence designed to induce him to plead guilty. based on the legal principle of immunity from liability in respect of the allegations of negligence, invoked by the lawyers, the trial judge in the county court (judge wodak) permanently stayed the civil damages proceedings. he held that both vla and the barrister were immune from 2 (1988) 165 clr 543. 3 [2005] hca 12; (2005) 223 clr 1; [2006] 1 lrc 168, aushc. the denning law journal 49 legal liability. on this occasion, the court of appeal of victoria refused leave to appeal from the trial judge‟s decision. an application for special leave to appeal to the high court of australia was referred to be decided, as on the return of an appeal, by the full court of that court. this is where i became acquainted in the travails of mr. d‟orta-ekenaike. the majority of the high court of australia (chief justice gleeson and justices mchugh, gummow, hayne, callinan and heydon) rejected the appeal. they held that a legal practitioner, whether acting as an advocate or as a solicitor instructing an advocate, who gave advice leading to a decision at trial which affected the conduct of the trial, could not be sued in negligence on that account. specifically, the majority affirmed that there were powerful reasons for the court to refuse to re-open its decision in giannarelli. a factor relevant to that decision for four of the justices (chief justice gleeson and justices gummow, hayne and heydon in joint reasons) was that the victorian parliament had not proceeded to abolish the immunity enjoyed by barristers and solicitors, following the 1988 decision in giannarelli. the same justices concluded that the advocate‟s immunity from suit resulted from the needs of the courts to provide finality to contests and to reinforce the central principle of the judicial system that controversies, once resolved, were not to be re-opened by collateral attack, except in a very few, narrowly defined, circumstances. the same members of the court concluded that there were analogous instances where a wrong might occur but without a remedy, including, for example, the immunity from suit enjoyed by judges in respect of their performance of curial functions. they held that, to permit negligence suits, would be to allow a second court to impugn the final decision of an earlier court, or to permit the re-litigation of matters earlier finally determined. the also rejected an argument that a provision of the legal profession practice act 1958 (vic) that stated that: “every barrister shall be liable for negligence as a barrister to the client on whose behalf he has been employed to the same extent as a solicitor was on [a date in 1881]” cured any defects of the common law and indicated a legislative intention to establish actionable liability in barristers. i alone dissented from all of these holdings. the result was a triumph for the principle of the immunity of the bar in australia, indeed, an extension of that immunity so that it would apply to solicitors as well. it applied to conduct out of court, as well as to conduct under the special pressures of incourt advocacy. champagne corks were heard popping in phillip street, of advocates, drunks and other players 50 sydney and william street, melbourne where many barristers are housed, on the news of the high court‟s decision in march 2005. in the argument of the d’orta-ekenaike case, the high court of australia had before it the then recent decision of the house of lords in arthur j s hall & co v simmons. 4 in that appeal, the house of lords identified a number of developments in legal practice which, they concluded, justified a reconsideration, and ultimately abolition, of the immunity for advocates from suit. the issues in the australian case were broader and more complicated, because of the proceedings against the solicitor at the vla, a statutory authority, and because of the history of 19 th century attempts in victoria to amalgamate barristers and solicitors and to provide for equal liability in negligence. still, there were common issues in the two proceedings. the house of lords was never formally part of the australian judicature. even privy council appeals had been terminated by the australia act 1986 (aust and uk). thus, their lordships‟ decision in arthur js hall did not bind the australian courts. nevertheless, great respect is shown throughout the commonwealth to decisions of final national courts. a recent decision on a similar point in england was clearly the stimulus for undertaking the review of the australian ruling in giannarelli. it was the source of the major arguments of legal principle and policy advanced by the appellant in the australian case. in particular, he latched on to the conclusion stated by lord steyn in arthur js hall: “[o]n the information now available and developments since rondel v worsley, 5 i am satisfied that in today‟s world that decision no longer correctly reflects public policy.” 6 whilst sweeping away the old immunity, as a relic of an exclusion from the rules applying to virtually all other professionals, some of the law lords in their speeches drew a distinction between collateral attacks on final judgments in civil and in criminal cases. 7 unanimously, the high court of australia was unconvinced that such a differentiation was conceptually viable. in my reasons, i was required to deal with the peculiar history of the common law rule in victoria and the foregoing special statutory provision. a dark hint in argument that the law lords in arthur j s hall had been forced to come to their conclusions because of the super-imposition upon the otherwise admirable reasoning of earlier english courts of alien concepts 4 [2002] 1 ac 615. 5 [1969] 1 ac 191. 6 [2002] 1 ac 615 at 683. 7 [2002] 1 ac 615 at 622-625 per lord hope of craighead; at 751-752 per lord hobhouse of woodborough. the denning law journal 51 contained in the european convention of human rights. 8 in fact, no mention at all had been made an argument of that instrument, a gap that i attributed to the non-application of the incorporating provisions of the human rights act 1998 (uk) at the time relevant to the proceedings in the arthur js hall case. yet most of my reasons were addressed to the so-called public policy arguments deployed by the majority in the australian decision to claim the continuance, indeed expansion, of the immunity in australia. amongst other considerations, i referred to the expansion of the number of lawyers engaged in advocacy today (many of whom are not now barristers). and the conceptual difficulty of providing the immunity for supposed reasons of instantaneous judgement within court rooms, yet denying it to the decisions expected of a surgeon or of a pilot of a large passenger aircraft. 9 the fact that the high court, far from cutting back on the exceptional immunity, was pushing it into new and unhistorical applications, merely demonstrated for me the lack of convincing reasons behind the court‟s proposed ruling. i am not, of course, questioning that ruling as it states the law of australia. i am explaining why i could not join in it. an undercurrent in the majority approach was a fear of floods of litigation, brought by discontented litigants against lawyers, which could not easily be repelled. however, i sought to respond to that fear: “it does not happen in the united states, a most litigious country, where there has never been an immunity from suit for attorney advocates. 10 it does not happen in canada, where the courts have rejected such a general immunity. 11 instead, in that country, the courts have concentrated on developing special rules to recognise the practical problem that lawyers often face in conducting trials and giving legal advice. the general unavailability of legal aid in australia to support negligence claims against lawyers; the availability of summary relief against vexatious claims; 12 and the rules against abuse of process by re-litigation 13 (not to mention the empathy and understanding of judges for co-professionals in unmeritorious cases) 8 (2005) 223 clr 1 at 99 [315]. 9 223 clr 1 at 101 [322]. 10 ferri v ackerman 444 us 193 (1979). see arthur js hall [2002] 1 ac 615 at 721, per lord hope of craighead. 11 garrant v moskal [1985] 2 wwr 80 at 82, applying de marco v ungaro (1979) 95 dlr (3d) 385; cf a linden canadian tort law (7 th ed, 2001) p 151. 12 general steel industries inc v commissioner for railways (nsw) (1964) 112 clr 125 at 129-130. see also arthur js hall [2002] 1 act 615 at 691-692. 13 arthur js hall [2002] 1 ac 615 at 703-704 per lord hoffmann. of advocates, drunks and other players 52 make it completely unnecessary to retain an absolute immunity of the broad, even growing, ambit propounded in this case.” 14 in these remarks, i invoked the comment of lord hoffmann in arthur js hall: “[the immunity] is burning down the house to roast the pig; using a broad-spectrum remedy where a more specific remedy without side effects can handle the problem equally well.” 15 to demonstrate the truth of lord hoffmann‟s dictum, i was also able to invoke the experience of litigation in australia between the time that the trial judge had found the immunity unavailable to barristers in victoria in giannarelli, before that immunity was restored on appeal. there was no objective evidence of any increase in the length of criminal trials in that interval 16 . similarly, in respect of the experience of england, i had available to me a report on what had happened following the arthur js hall decision. 17 only a handful of cases involving alleged negligence on the part of barristers had reportedly come to the courts. in only two of them was the barrister found liable at law. this led the commentator to conclude that the arthur js hall decision: “... does not appear to have caused any great problems for the legal profession. indeed, the reaction of some in the profession is that it is to be welcomed, if it helps to restore public confidence in the openness and accountability of the profession.” 18 to the argument of justice michael mchugh that the imposition of civil liability upon barristers would be “intolerable”, i suggested that this could not be a governing criterion, and was not so in the case of neurosurgeons, airline pilots or others who make extremely difficult and instantaneous professional decisions but were responsible in law for fleeting acts and omissions of carelessness. 19 as to the appeal to the “undeniable public interest in the 14 223 clr 1 at 103 [328]. 15 [2002] 1 ac 615 at 703. 16 law reform commission of victoria access to the law: accountability of the legal profession (report no 48, 1992) pp 35-36 [78]. 17 j senevieratne “the rise and fall of advocates‟ immunity” (2001) legal studies 644 at 662. 18 ibid, at 662, n 130. 19 (2005) 233 clr 1 at 106 [336]. the denning law journal 53 maintenance of the independent bar”, 20 i pointed out that such a bar existed, and would continue to exist. to suggest that in australia, uniquely, the bar would be destroyed by removing an anomalous out of court immunity for lawyers portrayed a lack of proper confidence in the survival capacity of the highly talented advocates found at the australian bar. australian barristers, and their instructing solicitors, i urged, were “made of sterner stuff.” 21 to the suggestion that the reforms should be left to parliament, i invoked lord steyn‟s conclusion in arthur js hall that judges had created the immunity and judges should say that the grounds for maintaining it no longer existed. 22 the final reason for rejecting an enlargement of the immunity was that it amounted to according an anomalous, unjust and unclear exemption from legal liability to a particular class of citizens. in a modern and egalitarian society, if that were to be done, it had to be done with the express authority of parliament. an extension of liability by judges was particularly unacceptable. whilst my reasons on this issue stood alone and unloved in the australian courts, it was a tiny consolation to me to observe, soon after, that the new zealand courts, 23 in a similar challenge, preferred my approach to that of the majority of the high court of australia. the writing is on the wall for advocates‟ immunities. it is far from impossible to imagine that even the immunity of judges for instances of deliberate abuse of office or of grossly negligent decisions may need to be re-visited: not necessarily to burden the judges individually to recompense those who have suffered thereby, but to provide remedies for judicial decisions that are shown not to have been made bona fide and in the discharge of the judicial office. 24 of drunks if judges, barristers and solicitors are, on the whole, pillars of society and generally admired, or at least respected, for their learning, honesty and diligence in often stressful situations, the same qualities are not usually attributed to people who get intoxicated, and whilst intoxicated, suffer serious harm, even death. this is particularly so in the case of injecting drug users, as witness the great difficulty experienced in societies in persuading law makers to introduce schemes of sterile needle exchange, so as to reduce the spread of hiv and 20 (2055) 223 clr 1 at 39-40 [105]-[108]. 21 (2005) 233 clr 1 at 106 [338]. 22 [2002] 1 ac 615 at 704-705. 23 lai v chamberlains [2006] nzsc 70; [2007] 4 lrc 79 (nzsupct). see ibid at [50], [55], [157], [203]. 24 rajski v powell (1987) 11 nswlr 522 (ca). of advocates, drunks and other players 54 aids. despite the overwhelming evidence that such schemes radically reduce the levels of the virus in this cohort of the population, that reflects its general composition, getting sensible policies and reflecting those policies in law, is extremely difficult. 25 even with intoxication caused by alcohol (a drug that is freely available (at least to adults), generally socially accepted and heavily advertised), an antipathy creeps into legal decisions, involving tort and statute law, so as to deny rights of recovery to the intoxicated where their condition is, in part at least, the result of conduct on the part of alcohol providers. this fact was demonstrated in 2004 in a decision of the high court of australia on negligence liability, reached shortly before my retirement from the court. the case was cole v south tweed heads rugby league football club ltd. 26 on this occasion, the majority of the court (chief justice gleeson and justices gummow, hayne and callinan) concluded that, if the alcohol provider owed a duty of care, such duty had been discharged by what its employees had done in that case. two justices (chief justice gleeson and justice callinan) held that the provider did not owe a general duty to take reasonable care to protect patrons against the risk of physical injury from consuming alcohol. justice mchugh and i dissented. we concluded that there was a duty of care in the circumstances; that it had been breached; and that the breach caused the damage suffered by the plaintiff. as is usual in cases of negligence litigation, whether involving professional negligence or otherwise, a detailed appreciation of the facts is essential to distinguish between those cases where a plaintiff succeeds and those where she fails. tweed heads is a pleasant seaside holiday resort town in new south wales, just south of the queensland border. on a sunday in june 1994, its rugby league football club offered a champagne (actually spumante) breakfast free-of-charge to all comers. mrs cole attended and proceeded to drink large quantities of the available sparkling wine. like other patrons, she moved from time to time between the drinking area and a vantage point where she could watch football games on the adjacent field. her drinking continued well into the afternoon. although by 12.30pm, mrs cole was clearly intoxicated, she was still sold a bottle of wine, and was variously described as 25 see the experience of the united nations development programme global commission on hiv and the law, of which the author is a commissioner. the rates of hiv infection in injecting drug populations in new zealand is 1% and in australia 2% (where such exchange systems operate). it is 18% in quebec and more than 30% in the united states (where such exchanges do not exist or are difficult to access). it is much higher in other countries. 26 [2004] hca 29; (2004) 217 clr 469. the denning law journal 55 “very joyous and happy” or “an embarrassment, totally inebriated.” 27 by 3.00pm, the wife of the manager of the club refused to sell her more alcohol because of her state of insobriety. still, she remained on the premises, and in the company of friends who, inferentially, were providing more alcohol to her. at about 5.30pm in the afternoon, the club manager asked mrs cole to leave on account of her drunken and indecent behaviour. he offered her use of the club‟s courtesy bus or to call a taxi to take her home. she rejected these offers. soon after, she left the club on foot in the company of two men, with one of whom the indecent public behaviour had occurred. at 6.20pm, mrs cole suffered very serious injuries when she was run down by a motor vehicle on a public road near the club. she sued the driver of the vehicle and the club, claiming negligence. at trial in the supreme court of new south wales, the trial judge found against both defendants but concluded that there was contributory negligence on mrs cole‟s part. he apportioned liability: 30% to each of the defendants and 40% to mrs cole. the new south wales court of appeal upheld appeals, set aside the judgment and dismissed mrs cole‟s action. 28 special leave to appeal to the high court of australia was granted by chief justice gleeson and me. however, the high court, by majority, rejected the appeal. once again, the case was a little complicated by the intervention of statutory law. by the registered clubs act 1976 (nsw), s 44a, it is an offence for a person in a registered club (like that at tweed heads) to supply liquor to an intoxicated person. it was not argued that this criminal provision, of itself, gave rise to a civil cause of action. but it was contended that the common law duty in negligence would mould itself to the stated parliamentary obligation. this view was rejected by a majority of the high court in what i suggested was a “withered view of community and legal neighbourhood propounded by” them. 29 in my opinion, the statutory provisions “shed light on the problems presented to the common law because they make plain the purpose of parliament that intoxicated persons are not to be sold, or supplied with, alcohol on ... club premises.” 30 yet his had happened at 12.30pm when the evidence showed that mrs cole was already seriously affected by the free alcohol supplied to her earlier in the day. the object of the common and statutory law was to prevent things coming to the inebriated circumstances that could lead to tragic outcomes, as they often do and as they did to mrs cole after 6.00pm. 27 (2004) 217 clr 469 at 474 [6]. 28 cole v lawrence (2001) 33 mvr 159. 29 (2004) 217 clr 469 at 496 [93]. 30 (2004) 217 clr 469 at 496 [94]. of advocates, drunks and other players 56 the majority of the high court of australia was understandably concerned to avoid imposing nanny-like duties on an alcohol outlet that would substitute for the freewill of the patrons, like mrs cole. this was obviously a proper concern. but expert evidence in the case, supported by commonsense and ordinary experience, showed the need for some firmness of action at an early, rather than later, stage in the deterioration of mrs cole‟s inhibitions and self-control. one can understand the conclusions reached by the majority. however, it was my view that a higher standard was imposed by the law for all the mrs coles of this world, given the role that a national final court plays in expressing the common law requirements of neighbourliness: “the law of tort exists not only to provide remedies for injured persons where that is fair and reasonable and consonant with legal principle. it also exists to set standards in society, to regulate wholly self-interested conduct and, so far as the law of negligence is concerned, to require the individual to act carefully in relation to a person who is in law a neighbour 31 . the club had a commercial interest to supply alcohol to its members and their guests, including [mrs cole]. doing so tended to attract them to an early-morning breakfast, to induce them to use profitable gambling facilities in the club‟s premises and to encourage them to use the restaurant and other outlets where alcohol would continue to be purchased or supplied to the profit of the club ... [t]he common law has long recognised that the occupier of premises owes a duty to take reasonable care for the safety of those who enter the premises. that duty arises from the occupation of premises. it extends to protection from injury from all of the activities of the premises, including, in registered premises such as the club‟s, the sale of alcoholic drinks.” 32 justice mchugh reached a similar conclusion. however, our opinions did not carry the day. our references to standards that had been applied in earlier decisions in analogous cases in australia and overseas were to no avail. justice mchugh concluded his opinion with these words: “no doubt some minds may instinctively recoil at the idea that the club should be liable for injuries sustained by a drunken patron who is run down after leaving its premises. but once it is seen that the club has a legal duty to prevent her drinking herself into a state where she was liable to suffer injury, the case wears a different complexion. the 31 donoghue v stevenson [1932] ac 562 at 580. 32 (2004) 217 clr 469 at 494-5 [91]. the denning law journal 57 club has a legal responsibility for the injury. instinct must give way to the logic of the common law.” 33 the factors that weighed on my mind were similar. according to the majority‟s analysis, there was no sanction upon the provider of alcohol to prevent or discourage it from plying a patron with alcohol (including free spumante over several hours) and then taking only formal steps to provide for her return to her residence of safety. there was no reinforcement of the parliamentary will to prohibit the licensee supplying further alcohol to the intoxicated. nothing was effectively done to diminish conduct that would reduce a decent citizen to public acts of indecency and personal gross inebriation. truly, the law washed its hands of responsibility. it was my view that judges in a final court, at least, had to consider whether this was the standard of the law for the society they lived in. however, mrs cole lost her case. a second case arose soon after my retirement from judicial office where the decision in cole was applied in equally troubling circumstances: cal no 14 pty ltd v motor accidents insurance board. 34 in that case, a widow instituted proceedings in the supreme court of tasmania. she claimed damages as a result of the death of her husband, consequent upon injuries sustained by him when his motor cycle collided with a bridge whilst he was driving home. the claim alleged negligence on the part of the proprietor and licensee of a hotel in triabunna, a township in beautiful tasmania. the evidence at trial showed that the deceased arrived at the hotel at 5.00pm. he began drinking beer and then spirits. when a rumour circulated that a police breathalyser and speed camera had been set up nearby, it was suggested to him (and he agreed) that he put the motor cycle in a locked store and collect it the next day. the licensee eventually did this and placed the keys to the motor cycle in the petty cash tin, out of reach of the deceased. this was the normal receptacle for keys handed over by customers. the deceased then stayed on the premises for an additional hour drinking and gambling. he left the premises between 7.45pm and 8.15pm. however, he soon returned demanding access to the motor cycle. the licensee offered to telephone his wife; but was rebuked: “if i want you to ring my fuckin‟ wife, i‟d fuckin‟ ask you”. the licensee alleged that he had asked the deceased three times whether he was fit to drive. being assured that he was, he provided the keys to the plant room and unlocked it. the fatal accident took place at around 8.30pm. the trial judge (justice blow) rejected the claim of negligence. however, this decision was reversed by a majority of the full court of the supreme 33 (2004) 217 clr 469 at 485-6 [46]. 34 [2009] hca 49; (2009) 239 clr 390; [2010] 1 lrc 490. of advocates, drunks and other players 58 court of tasmania. 35 by special leave, an appeal was brought to the high court of australia. justice mchugh and i having departed, that court unanimously set aside the orders on appeal. it restored the order of the trial judge, dismissing the action. specifically, the high court concluded that the licensee did not owe any duties to the deceased to telephone his wife, in the circumstances disclosed, so that she could come and collect her husband. alternatively, the majority of the judges concluded that, if there were any such duty to telephone the deceased‟s wife, the evidence did not support a conclusion that the accident would have been prevented by the hotelier‟s having done so. to some extent, the case in tasmania was weaker than mrs cole‟s case. the period of drinking and the degree of intoxication appears, on the evidence, to have been less prolonged and extreme. on the other hand, the significant (and certainly atypical) step by which the deceased had surrendered the keys of his motor cycle and consented to it being locked away, at least arguably, strengthened the claim of the widow. why would this course have been suggested, still more why would it have been agreed to, if there was not already a significant and obvious problem of intoxication recognised and accepted by supplier and patron alike? having suggested, and agreed to, such precautions, was it a proper discharge of the duty of care to the deceased to hand over the keys and unlock the store simply because the patron demanded this course with a few ripe expletives? was not the very act of self-deprivation in the control of the motor cycle enough to alert the licensee to the particular risk that the alcohol he was supplying can sometimes bring? this includes a diminution of the subject‟s self-perception and capacity of self-control by reason of the very product which the alcohol provider has a profit motive to keep supplying to the patron? arguably, against that potential conflict of interest and duty, the communal sense of neighbourliness, reflected in the law of negligence, requires intervention by courts to set a social standard that alcohol providers will comply with (and can themselves blame and plead in excuse) before letting loose an intoxicated patron on the public roads. clearly, doing this involves a danger to the patron, but also to others, and to the community generally. here, it involved a distinct danger to the patron‟s family who suffered the loss of a breadwinner in consequence of the turning over the keys and unlocking the store, contrary to the very precaution that the patron and licensee had earlier agreed to. these comments do not, of course, alter the current state of the law in australia. that law is as stated by the high court in cole and in cal no 14. but in today‟s world, we do not live only in our own jurisdictions. through 35 scott v cal no 14 pty ltd [no 2] (2009) 17 tasr 331. the denning law journal 59 the internet, commlii, austlii, bailii and that marvellous series the law reports of the commonwealth, 36 all judges, and especially judges of final national courts, have daily access to contemporaneous decisions on analogous problems decided in other english-speaking commonwealth countries. in canada, in 1974, in jordan house limited v menow, 37 a patron was ejected from a hotel where he had been served with beer from the late afternoon and evening until 10.00pm. when he was then struck by a vehicle whilst walking home and sustained serious injuries, he sued and recovered damages at trial, affirmed on appeal to the supreme court of canada. such damages were apportioned equally as between the plaintiff, the motor vehicle driver and the hotel. the supreme court of canada rejected a further appeal. the justices concluded that a duty of care existed in the circumstances; and that it was enlivened, on the evidence, by the manifest intoxication of the plaintiff. a similar view was taken by the supreme court of canada in 1995 in stewart v pettie. 38 that was a case where a passenger was seriously injured when a car, driven by her brother, crashed after the brother had been continuously served alcohol by the outlet where he had been drinking throughout the evening. the supreme court of canada concluded that a duty of care existed on the part of alcohol-serving establishments towards their patrons because the latter were sometimes rendered unable to look after themselves once they become intoxicated. furthermore, the provider owed a duty not only to the patron but also to third parties who might be dependent on his skill as a driver. commercial vendors of alcohol were held “unquestionably” to owe a general duty of care to persons who could be expected to use the highways. injury to a passenger of the patron was therefore foreseeable. the canadian court explained that the reluctance of courts to impose affirmative duties on persons for a failure to take positive action had been tempered where a “special relationship” existed between the parties that resulted in the imposition of a positive duty. the court reached the policy conclusion that such a “special relationship” existed at the least between the vendors of alcohol and the motoring public. that duty was enlivened in the given case because nothing had been done to prevent or inhibit the driver. he was simply let loose to drive his vehicle, to the danger of his passengers, including his sister, and other members of the public. against this danger, a higher standard of the common law of negligence applied. 36 law reports of the commonwealth, md kirby foreword for 100 th volume. see [2009] 2 lrc iii. 37 [1974] scr 239 (scc). 38 [1995] 1 scr 131 (scc). of advocates, drunks and other players 60 a review of the cases in england 39 and australia, 40 before the decisions in cole and cal no 14 shows a large preponderance of decisions upholding claims of negligence against alcohol outlets that continued to provide their product to patrons, to the point of intoxication and beyond, where they are known to be exposed to risks on the public highway. however, in australia, following the two recent decisions of the high court, such authorities have been rendered dubious and it would certainly be very risky to place reliance on them. in australia, it seems, drinking alcohol is to be left to private assessment and responsibility despite that product‟s inhibiting features of selfknowledge and willpower. no encouragement is to be given by the common law of negligence to self-control on the part of the outlet or customer and control by the employees. freewill reigns. is this a desirable result from a social point of view? this is a question that inevitably final courts must ask themselves. perhaps it was my early years attending methodist churches in sydney, and there imbibing the culture of community responsibility for its vulnerable members, that made me approach such matters with a heightened sense of the law‟s duty to uphold community standards and neighbourly duties. a barrister or solicitor who can never be sued for conduct associated with advice to a client can substantially banish from his or her thinking the sanction of an unpleasant action even for egregious wrongs or the need to explain his conduct in an open court as well as to a public liability insurer. an alcohol outlet which is permitted, without legal sanction, to ply a vulnerable middle-aged woman with alcohol over six hours, or a motor cycle driver expressly recognised to need protection, over three hours, is removed from the irksome stimulus that civil liability at law can sometimes exert. representatives of alcohol outlets then have little or no encouragement from the law to introduce rules of good practice controlling the amount of alcohol they serve to patrons over time; and the precautions (including perhaps notification to police) that they should observe, even where doing this might damage their commercial interests which are to turn a blind eye and to wash their hands of „other peoples‟ problems‟. other players 39 munro v porthkerry park holiday estates [1984] tlr 138. 40 chordas v bryant (wellington) pty ltd (1988) 20 fcr 91; johns v cosgrove (1997) 27 mvr 110; rosser v vintage nominees pty ltd (1998) 20 sr(wa) 78; desmond v cullen (2001) 34 mvr 186. in all of the foregoing cases, the plaintiff succeeded. the denning law journal 61 the great difficulty with the influential speech of lord atkin in donoghue v stevenson 41 was that it attempted to offer broad principles to guide negligence liability in a vast range of factual circumstances, in the place of the earlier categorisations of causes of action by reference to factual peculiarities. every judge and every law student knows the famous passage i refer to. it may be delphic and even circular, as its critics suggest. but it is seeking to express a broad principle based, ultimately, on notions of community ethics: “[i]n english law there must be and is some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. the liability for negligence, whether you style it as such or treat it as in other systems as a species of “culpa”, is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. but acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. in this way, rules of law arise which limit the range of complainants and the extent of their remedy. the rule that you are to love your neighbour becomes in law: you must not injure your neighbour, and the lawyer‟s questions: who is my neighbour? receives a restricted reply. you must take reasonable care to avoid acts or omissions which you can reasonable foresee would be likely to injure your neighbour. who then, in law, is my neighbour? the answer seems to be persons who are so closely and directly affected by my act that i ought reasonably to have had them in contemplation as being so affected when i am directing my mind to the acts or omissions which are called in question.” 42 at the very end of his speech, lord atkin went on to say, in words that are rarely quoted: “[this] is a proposition that i venture to say no-one in scotland or england who is not a lawyer would for one moment doubt. it will be an advantage to make it clear that the law in this matter, as in most others, is in accordance with sound commonsense.” 43 so if the facts are overwhelmingly influential in the outcome of cases of negligence at common law, and if the scope of liability depends on a kind of moral equation, the obvious need in society is to cut the gordian knot that is 41 [1932] ac 562. 42 [1932] ac 562 at 580. 43 [1932] ac 562 at 586. of advocates, drunks and other players 62 presented by lord atkin‟s notion of close and direct affectation that reasonably engages the mind of those whose acts and omissions can otherwise cause harm to others, because they are closely and directly affected by the decisions that need to be made. in australia, for some time, a test of “legal proximity” was adopted to control the finding of whether a duty of care in law should be upheld or denied 44 . by the time i was appointed to the high court of australia, this theory of “proximity”, although still “in use”, was undergoing critical reappraisal, in england, australia and elsewhere. in england, lord oliver had thrown cold water on the notion in caparo plc v dickman. 45 in australia, this fact eventually encouraged its abandonment in sullivan v moody. 46 this was because a majority of the high court of australia had, by that stage, been assembled which considered that “proximity” was too openended; that the imperial march of negligence had to be reversed; that costs of insurance were becoming excessive; and that plaintiffs‟ claims needed to be contained and rejected. in a series of decisions in the high court of australia, 47 seeing the writing on the wall of these developments, i urged that the way to tame the tort of negligence – and to control its suggested excesses – was to adopt the threestage test for finding a duty of care expressed by lord bridge of harwich in caparo. 48 this, in turn, was somewhat similar to an incremental approach earlier suggested by justice brennan in the high court of australia. it requires examination of: (1) whether it was reasonably foreseeable to the alleged tortfeaser that the particular conduct or omission would be likely to cause harm to a person such as the claimant; (2) whether between that tortfeaser and the claimant, a relationship existed that would be characterised as one of proximity or neighbourhood; and 44 see eg jaensch v coffey (1984) 155 clr 549. 45 [1990) 2 ac 605 at 633. cf d mendelson “torts” (chapter 32) in appealing, above n 2, at 821. 46 (2001) 207 clr 562. 47 pyrenees shire council v day (1998) 192 clr 330 at 420-427 [246]-[253]; romeo v conservation commission (nt) (1998) 192 clr 431 at 476-477 [117]-[121], 484485 [138]-[140]; perre v apand pty ltd (1999) 198 clr 180 at 286-291 [289]-[302]; crimmins v stevedoring industry finance committee (1999) 200 clr 1 at 80-86 [223]-[235; brodie v singleton shire council (2001) 206 clr 512 at 604-5 [241]. 48 [1990] ac 605 at 617-618. the denning law journal 63 (3) if so, whether it was fair, just and reasonable that the law should impose a duty of a given scope upon that tortfeaser for the benefit of that person? 49 at the least, i hoped that this approach would provide a control over idiosyncratic narrowing of liability in negligence and oblige judges (especially in the final court) to address candidly the issues of public policy enlivened in every case by the third question. thus, in the cases i have examined, the public policy of imposing (or exempting from) liability for the provision of legal advice by advocates (alone of all professionals) and the public policy of effectively exempting alcohol providers from accepting and safeguarding patrons (some of whom will be extremely vulnerable) from the very consequences that the provision of alcohol for profit will occasionally cause is central. my quest ultimately came to nothing. it was finally rejected in australia in sullivan v moody. 50 as more and more plaintiffs failed in proceedings in the high court of australia, i called attention to the pulling up of the drawbridge from the tradition of community responsibility and neighbourliness. and the substitution of a “shift of legal policy, albeit one that is not usually spelt out and justified by judges as the caparo approach would require.” in the place of “proximity”, or the caparo enquiry into fairness, justice and reasonableness, the australian law appears to have embraced a broad touchstone of “reasonableness” in determining when a duty of care will be imposed. 51 in my last years in the high court, i accepted the duty “for the time being” to conform to the majority opinion. 52 however, i confessed that i did so with without enthusiasm or a conviction that a generalised search amongst the “salient features” of the facts of each case was a sensible substitute for a more principled, conceptual and candid approach to charting the metes and bounds of negligence liability. in coming to this conclusion, i was influenced not so much by the methodists of my youth as by my service in my middle years in institutional law reform. there, as lord scarman had taught, the role of lawyers was, at least partly, to forsake the pragmatic problem-solving, minimalist approaches of the common law – stumbling from one decision to the next. instead, it was to try to perceive each new problem in the context of the broad canvas of the law. and always to ask how the answer to the particular case would advance 49 citing graham barclay oysters pty ltd v ryan (2002) 211 clr 540 at 623 [232]. 50 (2001) 207 clr 562 at 579 [49]-[53]. 51 neindorf v junkovic (2005) 80 aljr 341 at 356-347 [30]; (2006) 2 lrc 629, aushc. 52 graham barclay oysters (2002) 211 clr 540 at 626 [238]. of advocates, drunks and other players 64 desirable outcomes, not only for the parties, but for the community generally that must live with the judicial resolution of the parties‟ litigious conflict. all of which is to say little more than what that earlier judicial conceptualist, lord atkin, had remarked in donoghue v stevenson. that each particular case must always be seen in our law as an instance of a broader genus. that judges of final courts have an extra duty to search for, and express, the broader principles that should guide later and lower courts and ordinary citizens and their lawyers, as surely as statutes do. and that, in the end, they should test their conclusions by the intuitive responses about the content of law that would be held by non-lawyer citizens applying sound commonsense to legal outcomes. 53 if this approach is followed in the two instances i have studied by reference to plain tales from australia, i do not myself doubt the outcome that should be adopted. exceptional immunities from liability in negligence would be denied to, still less expanded for, lawyer advocates and their solicitors. and effective immunity would equally be denied to alcohol outlets sheltering behind notions of freewill as they sell their product that has the inevitable effect of diminishing the very willpower in the consumers said to justify self responsibility. the outcomes of each case would necessarily depend on the facts and circumstances accepted at trial. the removal of accountability in negligence is intuitively wrong. it is contrary to the neighbourhood principle as lord atkin expounded it. to the extent that the law concludes otherwise, it needs re-examination. and in the cyclical way of these things, such re-examination will one day come. lord taylor‟s life journeyed marvellously on the cycle and he rose to become the lord chief justice of england and wales. too soon, he died. those who are still on the journey have the responsibility to search for principle and justice; and to make sure, if possible, that these two great forces of the law coincide. 53 see travel compensation fund v tambree (2005) 224 clr 627 at 648 [64]. the university of buckingham i editorial introduction many law schools publish their own law journals. in the united kingdom, these are often edited by faculty staff. at the university of buckingham, the law school staff edit and publish an annual journal – the denning law journal (external link). it is named after the most famous and influential judicial figure of the century 20th century, lord denning (1899 – 1999). he was a made a judge at 45 years of age and was promoted to the court of appeal [a mere] four years later. his judgments were always lucid. simple words were the tools of his trade, communication and persuasion, in simple speech and not flamboyant gestures. in his book the discipline of law he said, “to succeed in the profession of the law, you must seek to cultivate command of language. words are the lawyer‟s tools of trade. when you are called upon to address a judge, it is your words which count most” (butterworths 1979, p 5). he had a unique style of judgment writing, a master of evocative story telling. „it was bluebell time in kent‟ formed part of the opening of his judgment in a case of death and personal injury witnessed by mrs hinz (hinz v berry [1970] 2 qb 40).when he died in 1999 the then lord chancellor, lord irvine of lairg, said: “the name denning was a byword for the law itself. his judgments were models of simple english which ordinary people understood.” he stood for the interests of fairness and justice. lord denning was an enthusiastic supporter of the fledgling university at buckingham. it seemed natural when the journal was founded in 1986 to name it after him. we were greatly honoured when he consented to the use of his name. when he celebrated his 100th birthday in january 1999, more than 170 lawyers and judges gathered at the university of buckingham for the denning centenary symposium. the denning law journal is a refereed journal. the aim is to provide a forum for the widest discussion of issues arising in the common law world and to embrace the wider global and international issues of contemporary concern, both of which lord denning would have approved. he also recognised the importance of: developing the common law the need for judicial and community recognition of the urgency of reform and modernisation of law the need to preserve the traditions of judicial independence, integrity and creativity reflecting upon the interplay between law and morality the role to be played by the law in the defence of the individual in the modern state. http://www.denninglawjournal.com/ the denning law journal ii as lord denning said, “if we never do anything which has not been done before, we shall never get anywhere. the law will stand still whilst the rest of the world goes on; and that will be bad for both” (packer v packer [1954] p. 15 at 22). susan edwards editor microsoft word 22-4 viano cwjsamend new edit6092010v5.doc 87 the denning law journal 2010 vol 22 pp 87-115 an american dilemma: the flow of trade versus the flow of people in nafta emilio c viano∗ abstract the north american free trade agreement (nafta) of 1994 aims at creating the legal, political, and business conditions for a freer circulation of goods, capitals and services in north america. however it gives scant attention to the mobility of workers. the basic premise of this paper is that globalisation of trade and the universal diffusion of human rights have evolved and progressed side by side, even though with difficulty and reluctantly, and that the regional liberalisation of trade must be deeply interwoven with issues related to socio-economic rights to be ultimately and durably successful. this paper’s major questions are: how does nafta address labour mobility? does nafta neglect, oppose or support the free movement of people across its borders? does the agreement deal with labour mobility in a clear and definite manner or does it ignore it and give it short shrift? should nafta support the liberalisation of immigration within its area as a long term objective, as part of a deeper and broader regional integration, conditioned on considerable reforms by its member states, especially mexico’s legal system, and energy, tax and banking policies, among others? is the free movement of people needed to be truly successful and provide economic security, survival and prosperity for its member countries in view of vastly changed economic and trade conditions since its inception? this paper first traces the history of the drafting of nafta. then it examines what nafta means for labour mobility within the complex interaction between an economic colossus like the united states and a developing country like mexico, also taking into account current migration trends. in this section, the paper also covers the liberalisation of the mobility of labour (albeit limited) brought about through administrative regulations. interspersed with this there is a discussion of what should be a mutually reinforcing relationship between international free trade and social policy. ∗ llb (hons), llm (leicester; washington college of law: law and government and international legal studies), ma, phd (new york university). an american dilemma: the flow of trade versus the flow of people in nafta 88 then the paper addresses the links and the relationship between trade, labour standards and migration. comparative perspectives with the approach of the european union to movement of workers are also included. finally, there is a brief critique evaluating nafta’s legal processes against the ideal to reconcile social integration with regional free trade. economic realities and crises and the surge in economic and trade power of china, india and possibly brazil that are redefining the pre-eminence and dominance of the united states are also factored in when the argument for liberalisation of the movement of people within nafta is made. introduction when canada, mexico and the united states completed the negotiations for the north america free trade agreement1 (nafta), gene mcnary, the then immigration and naturalization service (ins) commissioner, stated that: “[i] feel more than a bit confident in acknowledging that, if immigration is not formally on the table, someone of the table will sooner or later realise as a practical matter that moving goods and services in international commerce also involves moving the people who trade in those goods and services.”2 1 the north american free trade agreement, dec 17, 1992, us-can-mex, 32 i l m 289 (parts 1-3) and 32 i l m 612 (parts 4-8) [hereinafter nafta]. the north american free trade agreement is a free trade agreement between canada, the united states of america and mexico. it was initially pursued by free-trade conservative governments in the united states and canada, led by canadian prime minister brian mulroney, and us president george h w bush. there was considerable opposition on both sides of the border. in the united states president clinton made its passage a major legislative initiative and was able to secure passage in 1993. vice president al gore attempted to build support for the bill by debating the issue with h ross perot on the larry king live talk show. perot was an outspoken critic of nafta during his 1992 presidential campaign, claiming that passage would cause a “giant sucking sound” of jobs leaving the united states for mexico. after intense political debate, and the negotiation of several side agreements, the us house passed nafta by 234-200 (132 republicans and 102 democrats voting in favour) and the us senate passed it by 61-38. some opposition persists to the present day. nafta was signed on december 17, 1992 and went into effect on january 1, 1994. 2 see noemi gal-or “labour mobility under nafta: regulatory policy spearheading the social supplement to the international trade regime” (1998) 15 arizona journal of international and comparative law 365. see also gene mcnary “making goods and people in international commerce: remarks of the hon gene mcnary” (1992) 2 duke journal of comparative and international 247. the denning law journal 89 when considered by itself, the above statement may simply express the frustration of the (then) ins3 seeing immigration issues marginalised during the setting up of the first major trade agreement in north america. however, when it is considered in the context of the discussions at that time, during which organised labour, environmental and other non-governmental organizations (ngo) and interest groups were voicing their concern, disagreements and disappointment, it represents a substantial issue in its own right. actually, labour unions were not fighting for the right of freedom of movement for people, that is for labour mobility across the nafta territory as a right for each worker, but, on the contrary, were concerned about the migration of factories and other business away from american workers. in particular they were worried about the flight of business away from low skilled and lower socioeconomic level labour in the united states and canada towards mexicans. they were very concerned that mexican immigrants in the us would take away jobs currently being filled by american workers and drive down wage rates in those sectors where mexican workers were competing for jobs in the us.4 this is still the root of the unions’ opposition to allowing mexican lorries with mexican drivers to carry cargo to and from the us. additional areas of contention were the protection and harmonisation of labour rules and the concern that they may be downgraded as the outcome of joining two developed economies with a developing one. historically, there has been considerable resistance in the united states to recognising socio-economic rights. almost exclusive preference has been given to civil and political rights. this is evidenced by the fact that the united states has ratified the un covenant on civil and political rights but not that on economic, social and cultural rights.5 in addition the two march in unison: while the labour standards do not per se affect labour mobility, labour mobility includes issues related to labour standards. an example is providing the same protections to non-nationals as to nationals. even its proponents thought of nafta not as a customs union or a single market but only as a free trade area similar to its predecessor, the canada 3 now part of the us department of homeland security, and called the us customs and border protection (cbp). 4 patricia fernandez-kelly “nafta and beyond: alternative perspectives in the study of global trade and development” (2007) the annals of the american academy of social and political sciences 610. 5 both covenants were adopted by the un general assembly, resolution 2200, december 16, 1966. the iccpr came into force on march 24, 1976. the us senate gave its “advice and consent” for ratification in june 1992 but with numerous and substantial reservations and exceptions. the icesc came into force on january 3, 1976. the us has not ratified it. an american dilemma: the flow of trade versus the flow of people in nafta 90 united states free trade agreement (fta).6 nafta did not include any plans for political and social integration. for this reason many analysts maintain that nafta was not conceived with the goal of establishing a system that allowed the freedom of movement of persons between the three member states. rather it was thought of as expressly facilitating only the movement of goods, capital and services. people and their freedom of movement are noticeably excluded.7 chapter 16 is designed to facilitate temporary visitors for business, but certainly not the workers’ movement. the fact that immigration issues were not discussed or considered at that time demonstrates the high awareness and sensitivity felt around this issue.8 it is specifically because of the high volatility of immigration issues in the relations between the united states and mexico9 that the parties to the treaty decided to avoid it for fear of endangering agreement on the “directly related (real) trade issues” being negotiated at that time.10 efforts to address labour mobility would certainly have led to the rejection of nafta in the congress 6 (1988) 27 international legal materials 29 [kj5 i574]. public law 100-449 (act of 9/28/88); see also united states-canada free-trade agreement implementation act of 1988 (public law 100 449, 102 stat 1851); executive order 12662, implementing the united states-canada free-trade implementation act, december 31, 1988. the free trade agreement (fta) was a trade agreement reached by canada and the united states in october 1987. the agreement removed several trade restrictions in stages over a ten year period, and resulted in a great increase in crossborder trade. on january 1, 1994, it was superseded by the north american free trade agreement, which included mexico as well. 7 see elizabeth kraus “the systemic effects of economic trade zones on labour migration: the north american free trade agreement and the lessons of the european community” (1993) 7 georgetown immigration law journal 323. see also kevin johnson “free trade and closed borders: nafta & mexican immigration in the united states” (1994) 27 uc davis law review 937. 8 see beverly baker-kelly “united states immigration: a wake-up call!” (1994) 37 howard law journal 283. see also bradly j condon and j brad mcbride “do you know the way to san josé? resolving the problem of illegal mexican migration to the united states” (2003) 17 georgetown immigration law journal 251. 9 see luis herrera-lasso “the impact of us immigration policy on us-mexico relations” (1998) 3 ucla journal of international law & foreign affairs 357. 10 for a discussion of how and why us-mexico immigration and trade policies have developed independently, see gabriela a gallegos “borders matter: redefining the national interests in us-mexico immigration and trade policy” (2004) 92 california law review 1729. gallegos argues that “the separation of trade and immigration likely stems not simply from economic rationales, but from an understanding of the national interest grounded in nativistic racism…” at 1729. see also d massey, j durand and n j malone labor economics: beyond smoke and mirrors: mexican immigration in an era of economic integration (new york: russell sage foundation, 2002). the denning law journal 91 and senate.11 migration issues were as politically sensitive in the early 1990s as they are today but the number of mexican workers in the us then (legally and illegally) was far lower than it is today. even though immigration between canada and mexico has been limited12 and between canada and the united states not problematic, the canadians were concerned about this matter as well.13 historically, both canada and the united states have linked the importation of labour with granting citizenship. even though canada grants temporary working permits and gives those who qualify a working visitor status, this is not the norm. likewise, the united states, with the considerable exception of mexican migrant farm workers, until at least the 9/11 events preferred permanent residence and now naturalization to issuing working permits.14 because of increased deportations post 9/11 for various reasons, especially for a past criminal record, regardless of how slight and ancient the crime, many immigrants have decided to apply for citizenship as an added protection against possible deportation proceedings.15 president bush’s 2004 proposal to create, expand and formalize a guest worker program16 was rejected by the republican 11 patricia fernandez-kelly and douglas s massey “borders for whom? the role of nafta in mexico-us migration” (2007) 610 annals 98. 12 see gal-or, above n 3, at 366. for a comprehensive discussion of canada-mexico relations on issues of immigration and nafta, see d goldfarb the canada-mexico conundrum: finding common ground (toronto: howe institute, 2005). 13 the number of legal, temporary workers in canada from mexico rose 68 percent, to 22,344 from 13,261, from 1998 to 2003. by comparison, there were 110,075 legal, temporary workers admitted to the united states from mexico in 1998, and 130, 327 in 2003, an 18 percent rise. the number of mexicans legally resident in canada is only about 50,000 while in the millions in the united states. 14 see shannon leigh vivian “be our guest: a review of the legal and regulatory history of us immigration policy toward mexico and recommendations for combating employer exploitation of non-immigrant and undocumented workers” (2005) 30 seton hall legislative journal 188. 15 for example, in fy 2004, 537,151 people gained us citizenship, yet a processing backlog of 653,190 naturalization applications remained. the number of naturalizations was a 16 percent increase from the 463,204 naturalized in fy 2003. the higher naturalization numbers were consistent with the higher number of applications received during fy 2004. the processing backlog grew 4 percent (25,920) between fy 2003 and fy 2004. see: http://www.migrationpolicy.org/pubs/fs12_immigration_us_2005.pdf 16 see ryan d frei “reforming us immigration policy in an era of latin american immigration: the logic inherent in accommodating the inevitable” (2005) 39 university of richmond law review 1355 (2005). see also pia orrenius and madeline zavodny “immigration policy: what are the consequences of an amnesty for an american dilemma: the flow of trade versus the flow of people in nafta 92 dominated congress that instead adopted legislation meant to stop mexican illegal immigration through the construction of a wall, sensors and other security measures along the us-mexican border.17 however, as this paper will attempt to illustrate, the canada-us free trade agreement of 1989 (cusfta) and subsequently nafta, have brought forth modest changes in the prevailing norm of exclusion by introducing and identifying those in the service sector crossing nafta boundaries as in a “guest worker” category. these visas to the us, however, are quite difficult to obtain. the basic premise of this paper is that globalisation of trade and the universal diffusion of human rights have evolved and progressed side by side, even though with difficulty and reluctantly, and that the regional liberalisation of trade should be deeply interwoven with issues related to socio-economic rights.18 generally, the justification and the objectives of a regional trade agreement are the development and strengthening of trade relations among the parties and, at least for the us, encouraging economic development and respect for the rule of law. this normally involves and affects political systems where labour management issues constitute an integral part of the socio-economic fabric. in this case any separation of these different components can be only temporary and forced. of course, “temporary” can be a very long time, especially when one is discussing immigration. outside the european union, there are almost no ftas that provide for any significant degree of labour mobility. the movement of persons, except for professionals, has not been successfully addressed not even in the general agreement on trade in services (gats). thus, this paper’s basic questions are: how does nafta address labour mobility? does nafta neglect, oppose or support the free movement of people across its borders? does the agreement deal with labour mobility in a clear and definite manner or does it ignore it and give it short shrift? should the free movement of people be a long term objective of nafta, as part of a deeper and broader regional integration, conditioned on considerable reforms undocumented immigrants?” (2004) 9 georgetown public policy review 21. see also above n 9. 17 hr 6061 secure fence act 2006, 109th congress, 2nd session. see justin c glon, “good fences make good neighbors: national security and terrorism – time to fence in our southern border” (2005) 13 indiana international and comparative law review 349; michael j mayerle “proposed guest worker statutes: an unsatisfactory answer to a difficult, it not impossible question” (2002) 6 journal of small & emerging business law 559. 18 see zoe lofgren “globalization, security & human rights: immigration in the 21st century: a decade of radical change in immigration law” (2005) 6 stanford law & policy review 349. the denning law journal 93 by its member states, especially mexico’s legal system, and its energy, tax and banking policies among others? if one looks only at nafta’s direct effects on the liberalisation of the movement of people, then the answer is quick and short: none at all. however, this paper will also address the indirect effects where there is a good deal to discuss. it is this paper’s position that nafta was conceived as a strategic superstructure that provided a detailed treatment in the areas of trade in goods, trade in services, investment, intellectual property and dispute settlements, among others. some of the main actors, like former mexican president vicente fox, saw the agreement six years after its entry into force as a basis for a wider and deeper integration, involving workers’ movement as well as other issues. however, fox found little sympathy and support for his objectives from canada and the us. the nafta process functions at different levels, reflecting the major players in it. there are the federal governments of the three countries that negotiated and signed the treaty and agreed upon the general framework of the agreement; and then, their constituent units, the states in the united states19 and mexico and the provinces in canada, charged with some of the implementation and application of the agreement. most of the implementation is at the federal level, although in some areas (for example, investment and services) the states or provinces play a major role. among the states, those at the frontier with mexico play an even more significant role in migration issues. however, there is little formal coverage of such issues in nafta as already noted earlier. state and provinces also act as liaison between the federal and the local levels; and the bodies regulating labour reflect their own interpretation of nafta and thus play a major role in the continuous interpreting and drafting process that may additionally open up the regime to the free movement of people.20 19 there is considerable tension between states and the united states on the issue of who should be paying for the costs of illegal immigration (eg public benefits, education, medical care, law enforcement and incarceration). data show that florida, california, new jersey, new york, illinois and texas have felt a negative economic impact because of illegal immigration. the us supreme court denied certiorari to florida’s claim for federal reimbursement. see are these cases? please clarifychiles, 874 f supp 1334, 1342 (sd fla 1994); chiles, 69 f 3d. 1094, 1097 (11th cir 1995); padavan, 82 f 3d 23, 28-29 (2nd cir 1996); new jersey, 91 f. 3d 463467 (3rd cir 1996). many states argued 10th amendment violations (“a commandeering of state legislative processes”) based on new york v us, 505 us 144, 161 (1992). see also stephen h legomsky, “immigration, federalism, and the welfare state” (1995) 42 ucla law review 1453; richard sybert “population, immigration and growth in california” (1994) 31 san diego law review 945. see gal-or, above n 3, at 368. 20 james f hollifield and thomas chang “trade and migration in north america: the role of nafta” (2005) 11 law & business review 327, at 336. an american dilemma: the flow of trade versus the flow of people in nafta 94 mobility is a highly complex area that ranges from laws regulating immigration to recognition of university and training credentials to the right to practice one’s profession in a different country.21 consequently labour unions and professional organizations play a major role in facilitating and promoting the free circulation of persons. introducing and strengthening regional and international free trade interwoven with the corresponding and commensurate social policy is indeed a complex process.22 this paper first traces the history of the drafting of nafta. then it examines what nafta means related to labour mobility within the complex interaction between an economic colossus like the united states and a developing country like mexico, also taking into account current migration trends. in this section, the paper also covers the liberalisation of the mobility of labour (albeit limited) brought about through administrative regulations. interspersed with this there is a discussion of what should be a mutually reinforcing relationship between international free trade and social policy. then the paper addresses the links and the relationship between trade, labour standards and migration. comparative perspectives with the approach of the european union to movement of workers are also addressed. finally, there is a brief critique evaluating nafta’s legal processes against the ideal to reconcile social integration with regional free trade. economic realities and crises and the surge in economic and trade power of china, india, possibly brazil that are redefining the pre-eminence and dominance to date of the united states are also factored in, when the argument for liberalisation of the movement of people within nafta is made. ii. the history of the agreement within the framework of the continuous worldwide process of building trade blocks, the united states, canada and mexico came to realise in the late 1980s-early 1990s how important it is to enter into regional agreements that reflect the interests and the aspirations of the contracting parties. the main impetus for the creation of nafta came from canada. after the second world war, canada actually preferred the multilateral atmosphere because of the need to assert and protect canada’s sovereignty opposite its powerful southern neighbour, the united states. however, growing globalisation, the new trade realities introduced by the world trade organization, and the changing economic climate pressured canada to review its relationship with its most important trading partners and to restructure them accordingly by 21 kevin r johnson “free trade and closed borders: nafta and mexican immigration in the united states” (1994) 27 uc davis law review 937, at 944. 22 see philip martin “nafta and mexico-us migration: policy options” (2004) 11 law and business review of the americas 361, at 372. the denning law journal 95 preferring bilateral agreements.23 it is worth pointing out that the us had changed its own policy of favouring only trade liberalisation in geneva in the mid 1980s, when it negotiated an fta with israel. there was also a partial precedent in the 1965 bilateral agreement on autos and auto parts between canada and the united states, covering a sector that still accounts for a huge percentage of total north american trade in industrial goods.24 it was canada that initially proposed the free trade agreement25 with the united states and paved the way to it. the fta was a very controversial issue in canada, with many fearing economic, cultural and political domination by the united states. it attracted almost no attention in the united states. in formulating the agreement, the canadians did favour the sectoral free trade approach to trade liberalisation.26 even though this at the end was politically rejected, remnants of the sectoral approach continue to be embedded in the subsequent treaty, nafta. a good example is the labour market where a clear and sharp distinction is drawn between high skilled and low skilled labour.27 this in turn impacts the freedom of movement across the nafta. for example, chapter 14 on trade and services of the cusfta28 began a trend of also covering services in trade agreements.29 admittedly it 23 see b w wilkinson “nafta in the world economy: lessons and issues for latin america” in r g lipsey and p meller (eds) western hemisphere trade integration: a canadian-latin american dialogue (london: macmillan press, 1997). 24 in 1964, only seven percent of vehicles made in canada were sent south of the border, but by 1968, thanks to the automotive products trade agreement, commonly known as the auto pact or apta, an important trade agreement between canada and the united states signed by prime minister lester b pearson and president lyndon b johnson in january 1965, this was sixty percent. by the same date, 1968, forty percent of cars purchased in canada were made in the united states. automobile and parts production quickly surpassed pulp and paper to become canada's most important industry. canada’s trade deficit was reversed into a trade surplus worth billions of dollars annually to canada. the apta was eventually declared illegal by the world trade organisation in 2001 but at that time it had already been superseded by nafta. 25 canada-us free trade agreement (fta or cusfta) (1988) 27 international legal materials 293 [kj5 i574]. 26 see maureen appeal molot “the north american free trade agreement: policy or investment-led?” in richard g lipsey and patricio meller, see above n 24. 27 karla m campbell “guest worker programs and the convergence of us immigration & development policies: a two-factor economic model” (2007) 21 georgetown immigration law journal 663. 28 united states-canada free trade agreement (1988) 27 international legal materials 281, at 368 [hereinafter fta]. 29 see james mcilroy “nafta cross-border provision of services” (1996) 22 canada-united states law journal 203, at 204. an american dilemma: the flow of trade versus the flow of people in nafta 96 was a modest beginning: only three pages, plus annexes, relating to professions like architecture, tourism, computer services and telecommunications enhanced services. anything not expressly included was excluded.30 thus, for example, health, education and social services were excluded. afterwards, nafta expanded the list through the reworked provisions in chapter 12 on cross-border trade in services.31 services are a labour intensive sector. for example, it is not possible to envision free trade in architecture without allowing an architect at a minimum to survey the construction site.32 for this reason the drafters of the cusfta introduced chapter fifteen allowing the temporary entry of business persons as a corollary to chapter fourteen already permitting controlled labour mobility across the fta member states and furnishing the mechanisms to facilitate such movements.33 it is true, of course, that labour issues in the cusfta raise far fewer concerns. no one was or is particularly worried about a flow of workers from canada into the us or vice versa. this policy was replicated in chapter sixteen of nafta (temporary entry for business persons).34 soon after the implementation of the canada-us fta on january 1, 1989, the us and mexico began exploratory discussions on the possibility of entering into a free trade agreement.35 canada quickly realised the potential impact of such an accord and the need to join it especially to make sure that mexico would not end up with a more favourable agreement than canada under the cusfta. thus the negotiations for nafta were expanded to include canada as well. president george bush requested from congress fast track negotiating authority to expedite concluding an agreement. moving rapidly to negotiate and approve the treaty was depicted as necessary to avoid failure in reaching an agreement. nafta opponents objected to the quick pace of the negotiations and limiting the role of congress on the matter to only an “up or down” vote. limiting the debate and the input by congress was seen by some 30 ibid. 31 see fta, above n 26 at art 1501, 1502 s. 32 see gal-or, above n 3, at 377. 33 see howard f chang “liberalized immigration as free trade: economic welfare and the optimal immigration policy” (1997) 145 university of pennsylvania law review 1147. 34 see gal-or, above n 3, at 371. see also nancy fuller-jacobs “labour mobility and the north american free trade agreement” (1993) 1 san diego justice journal 289, at 290. 35 see g hufbauer and j schott north american free trade: issues and recommendations (washington: institute for international economics, 1992). the denning law journal 97 as undermining the democratic process.36 labour and environmental organizations also opposed the fast track procedure37 as they perceived in nafta considerable threats to the environment and to labour standards.38 president bush eventually succeeded in obtaining fast track authority but only on the condition of establishing a parallel negotiation track to deal with environmental and labour issues.39 because of election campaign politics and the resonance among the american public of the criticism by environmental and labour groups, provisions favourable to the environment were moved from the parallel tract into nafta.40 labour however did not achieve that level of success.41 while labour issues are mentioned in the list of nafta’s goals contained in its preamble, the agreement does not address labour issues until chapter eight and then only indirectly in the emergency sections provisions.42 the responsibility of addressing those issues fell on president clinton. it was done with two supplemental “side agreements,” one on environment and one on labour.43 the considerable controversy about labour and the environment 36 see alan c nelson “nafta: immigration issues must be addressed” (1994) 27 uc davis law review 987. 37 see robert housman “the treatment of labour and environmental issues in future western hemisphere trade liberalisation efforts” (1994) 10 connecticut journal of international law 301, at 303. 38 see robert f housman and paul m orbuch “integrating labour and environmental concerns into the north american free trade agreement: a look back and a look ahead” (1993) 8 american journal of international law and policy 719, at 724-25. 39 ibid, at 719. 40 see housman, above n 38, at 306-07. 41 elizabeth l gunn “note: regionalizing labour policy through nafta: beyond president bush’s temporary worker proposal” (2005) 28 boston college international and comparative law review 353. 42 see kevin johnson, above n 22, at 937. johnson cites statements by the bush administration to congress: “until it came time for congress to consider whether to ratify the trade agreement, the anomaly of nafta’s endorsement of free trade and closed borders went largely undiscussed, if not unnoticed…” at 941. see also johnson’s analysis of why immigration was excluded from the agenda: “because (a) the bush administration’s recognition of the political explosivity of the issue; (b) the closing of a vivid debate on immigration reform in the united states during the 1980s; (c) the diametrically opposed interests of the united states and mexico regarding immigration potentially capable to undermine a trade treaty; and (d) mexico’s repressed concern about american human rights violations during border enforcement, and america’s fear that if discussed publicly it would lead to restrictions on their relevant policies.” see at 957-58. 43 unfortunately the two agreements did not harmonize the applicable laws across the nafta. see housman, above n 38, at 306-07. an american dilemma: the flow of trade versus the flow of people in nafta 98 revealed that all three treaty parties had already on the books well crafted laws to address the concerns of those opposing nafta on labour and environmental issues.44 consequently, most of the criticism zeroed in on the non-existent movement of people. the discussion in the united states relative to the ratification of nafta placed immigration front and centre as a key factor for both those supporting and opposing nafta.45 in the context of this debate, immigration from canada into the united states at that time was not a problem. however, mexican immigration into the united states was definitely a major concern.46 those opposing nafta were very concerned that nafta would dramatically increase mexican legal and illegal immigration into the us47 they lobbied for congress to make ratification of nafta subject to a commitment on the part of mexico to take aggressive steps to halt the flow of undocumented immigrants into the us.48 on the other side of the border, prominent mexican thinkers and writers, like jorge castaneda, criticized 44 see housman, above n 38, at 306-07. 45 ibid. 46 for the us, immigration from canada in the late 1980s-early 1990s posed no threat and raised no concern, given the socio-economic similarities between the two countries and the ethnic and cultural background in common. the portion of canadian and mexican immigration into the us has changed considerably in the last 150 years. canadian immigrants were more numerous for some 100 years, from the 1850s to the 1950s and peaked between 1921 and 1930 with a share of 22.5%, declining since then. both canadian and mexican immigration increased especially in the first part of the 20th century as the us grew more xenophobic and laws were passed excluding asians (chinese exclusion 1882) and southern-eastern europeans (national origins quota system 1924). canadian and mexican immigration was stimulated especially during the two world wars and the great depression when european immigration to the us was cut off by adverse war and economic conditions and restrictive laws. since 1980 the share of immigrants from canada has been steady at 2.1%. instead, the mexican share, basically zero in the 19th century, has been growing exponentially especially since 1990 reaching about 25%. this refers only to legal immigration. if one adds the undocumented immigrants, the mexican share has been estimated at over 60%. thus, the “nafta share” (canadian plus mexican legal immigrants) reached a high of 35% in 1920-1930, then declined and has been close to 25-26% for the last 20 years. see james f hollifield and thomas osang “trade and migration in north america: the role of nafta” (2005) 11 law and business review of the americas 327, at 335-36. 47 see gal-or, above n 3, at 373. for recent data and trends on immigration to the us, see jeffrey passel and roberto suro rise, peak and decline: trends in us immigration 1992-2004 (pew hispanic center, september 2005). 48 see melinda mcgehee “using immigration as a protectionist mechanism while promoting free trade” (2002) 8 law and business review of the americas 667. the denning law journal 99 nafta for not allowing for labour mobility;49 castaneda wrote: “the governments are opening borders for goods and capital flows, while labour, mexico’s main export, is barred from entry.”50 iii. nafta’s administrative regulations and (limited) immigration of workers the nafta preamble states that the parties have agreed to “protect, enhance and enforce basic workers’ rights.”51 however the right to seek work in another country was intentionally not included in the preamble,.52 while it would be a stretch to state that migration is a worker’s right, increasingly, lack of development and economic opportunity is seen as the root of many serious violations of human rights affecting entire classes like women, indigenous people and minorities. among the human rights violations are lack of access to education, career opportunities, health services, and participation in civil and economic society.53 the nafta preamble also lists the parties’ resolution to “create new employment opportunities, improve working conditions and living standards in their respective territories.”54 it is not evident if this applies to nationals of another member country.55 however, it is generally agreed that an unstated but significant objective of nafta is to create well paying jobs in mexico so that mexican workers, seeking work and to improve their lives, would not feel compelled any more to immigrate to the us undocumented. to address the issue at some level, the agreement 49 see kevin r johnson, above n 22. see also thomas m fullerton and richard l sprinkle “border controls, public policy, immigration, and trade with mexico” (2004) 10 texas hispanic journal of law and policy 67. 50 see jorge g castaneda and carlos heredia “another nafta: what a good agreement should offer” (1992) 9 world policy journal 673. see also kevin johnson “race, the immigration laws, and domestic race relations: a ‘magic mirror’ into the heart of darkness” (1998) 73 indiana law journal 1111 and “an essay on immigration, citizenship, and us/mexico relations: the tale of two treaties” (1998) 5 southwestern journal of law and trade in the americas 121. 51 nafta, above n 1. 52 jayashri srikantiah “globalization, security & human rights in the 21st century” (2005) 16 stanford law and policy review 317. 53 these rights are routinely denied to their citizens by the states who are parties to the un covenant on economic, social and cultural rights. it is argued that states see these rights mostly as aspirational rather than “hard law”. this is also the reason given by the us to refuse ratifying this covenant. 54 ibid. 55 see teresa r favilla-solano “legal mechanisms for enforcing labour rights under nafta” (1996) 18 hawaii law review 293. an american dilemma: the flow of trade versus the flow of people in nafta 100 includes the right to employment and labour mobility in a limited way in two chapters, chapter 12 on cross border trade in services and chapter 16 on temporary entry for business persons.56 chapter 12 provides the framework for mobility and the obligations related to services, especially professional services.57 chapter 16 specifies who is eligible to take advantage of this mobility and how, by specifying the eligible professional services and the authorities in charge of them.58 article 1213.2 defines professional services as “services, the provision of which requires specialized post-secondary education, or equivalent training or experience, and to which the right to practice is granted or restricted by a party” but does not include services provided by trade persons or vessel and aircraft crew members. however, chapter 12 unequivocally affirms that it does not create any immigration obligations for the parties. in other words, it does not grant qualified citizens of the parties the right to emigrate for employment. article 1201.3 states: “nothing in this chapter shall be construed to: impose any obligation on a party with respect to a national of another party seeking access to its employment market, or employed on a permanent basis in its territory, or to confer any right on that national with respect to such access or employment…”59 chapter 16 relates to chapter 12 since it is the chapter that most clearly deals with immigration issues. article 1608 on definitions, for example, defines temporary entry as: “…entry into the territory of a party by a business person of another party without the intent to establish permanent residence.”60 additionally, “business person means a citizen of a party who is engaged in the trade in goods, the provision of services or conduct of investment activities.”61 56 nafta, above n 1, at chs 12 and 16. 57 see james mcilroy “nafta cross-border provision of services” (1996) 222 canada-united states law journal 203, at 204. 58 see above n 57. the two chapters overlap somewhat. chapter sixteen cannot be implemented without compliance with chapter twelve. 59 nafta, above n 1, at art 1201.3. 60 ibid, at art 1608. the denning law journal 101 the annexes to chapter 16 contain only eight articles. article 1603, section d on professionals refers to those individuals practicing one of the professions listed in schedule ii.62 the list is quite narrow. also, professionals from other nafta countries cannot be self-employed in the united states.63 the right of a party to require a visa and to impose a quota is maintained.64 this has the effect of significantly limiting the liberalisation of mobility between the parties covered in section d, article 2. 65 the number of professionals allowed to enter the united states from mexico has also been specifically limited to “5,500 initial petitions of business persons of mexico seeking temporary entry under section d of article 1603.”66 while canadians also need work permits to come into the us to work, there is no numerical limit for canadians. thus, mexican professionals are treated less favourably than canadians. 67 on the other hand, neither canada nor mexico has established quota limits on the entry of professionals from the other parties. they do reserve the right to do so in the case of new members joining the nafta.68 in conclusion, chapter 16 neither permits immigration nor harmonizes the temporary entry conditions among the nafta parties. even when it comes to professionals listed on a restricted list, chapter 16 does not allow for free and unrestricted temporary access. among the three parties, the united states provides the least favourable treatment. the canadians have not obtained anything remarkably different under the nafta that they did not already have under the cusfta. the mexicans continue to have the more limited 61 ibid. 62 ibid, at annex 1603 s d art 1. 63 see gerald a wunsch “why nafta's immigration provisions discriminate against mexican nationals” (1994) 5 indiana international and comparative law review 127. 64 see nafta, above n 1, at annex 1603 s d art 3. 65 ibid at annex 1603 s d arts 4-6. see gal-or, above n 3, at 376. 66 this limitation will expire ten years from the entry into force of the nafta, unless the parties agree to remove it earlier. see ibid at sched iii, art 3(b). 67 see ellen g yost “nafta -temporary entry provisions -immigration dimensions” (1996) 22 canada-united states law journal 211, at 214. 68 see yost, above n 68, at 219-20. on the contrary, as the united states fortifies its border with mexico, canadian companies are reaching out to immigrants who are frustrated by us restrictions and tempted by dreams of a better life in canada. the canadian government has been relaxing its immigration rules in an effort to attract students and skilled workers from all over the world. that, and the push by companies promising jobs and visas, is attracting mexican professionals turned off by the minuteman project, new border walls, tougher us entry requirements and laws like proposition 200 in arizona. an american dilemma: the flow of trade versus the flow of people in nafta 102 access to the united states than canadians. while it is assumed that they are not that interested, us professionals also face limitations in their mobility to the other parties.69 in other words, in contrast to the treaties among the 27 member states of the european union,70 nafta does not envision as one of its priorities the free movement of people across the (basically eliminated) national borders of its parties on an equal and non-discriminatory basis like the eu does.71 similarly, it does not grant them, once they cross a border, the right of establishment enjoyed by citizens of the european union within the european union.72 69 see gal-or, above n 3, at 381. for a summary of recent discussions on labour mobility, immigration and outsourcing, see ryan walters “managing global mobility: free trade in services in the age of terror” (2006) 6 uc davis law review 92. 70 the most important treaties establishing what is today the european union are: the treaty of rome (1957; consolidated version, oj c340 10.11.1997) establishing the original european economic community; the single european act (oj l 169 of 29.06.1987); the treaty on european union or maastricht treaty (oj c 191 of 29.07.1992) that created a european union and granted citizenship of the european union to every national of a member state; the treaty of amsterdam (oj c 340 of 10.11.1997); and the treaty of nice (oj c 80 of 10.03.2001). a european union constitution (oj c310 of 16.12.2004) is in the process of being adopted by the member states but the likelihood of this happening appears to be remote at this time. 71 see karen engle and william powers “working borders: linking debates about insourcing and outsourcing of capital and labour” (2005) 40 texas international law journal 691. 72 article 39 of the ec treaty provides for free movement of workers. initially these rights were given only to “economically active” people (workers and people looking for work) and their families. gradually, it has been recognized that the free movement of workers includes a social dimension. regulation 1612/68 establishes that free movement is a fundamental right of workers. worker’s rights include: the right to enter into any member state, take up or search for employment; the right to reside; and the right to remain. the treaty of european union (1993) establishes european citizenship (art 17). every citizen of the union has the right to move and reside freely within the territory of the member states, subject to certain limitations and conditions (art 18). freedom of establishment goes beyond the right to take up an activity as a self-employed person. the european court of justice has held that it extends to other elements connected to that right eg the right to rent premises, equal treatment as regards housing, and a right to access leisure facilities on a non-discriminatory basis. article 43 of the ec treaty therefore prohibits both direct and indirect discrimination on nationality grounds. an important feature of the rights available under article 43 is the fact that member states cannot disregard qualifications obtained in another member state. the denning law journal 103 iv. labour related supplementary agreements given the considerable limits to immigration even of professionals and the absence of any liberalisation for non-professionals, a side-agreement on labour, the north america agreement on labour cooperation (naalc),73 was negotiated and finalized one year after the nafta negotiations had been concluded. along with the north american agreement on environmental cooperation (naaec),74 naalc is basically a supplement to the nafta. it does not amend the agreement. the naalc does not provide for an integration of labour markets and does not set rules for migratory labour. it is an agreement between the parties to the nafta to maintain and enforce their own national domestic labour laws. it limits itself to formulating a legal procedure and to establishing a commission on labour cooperation. there is also an arbitration clause, however this is yet to be invoked.75 the mission of the commission is to monitor the conditions of the nafta labour market; to foster compliance with the national laws and regulations of the respective parties; and to manage dispute settlements procedures. in the united states, the naalc76 was negotiated and proposed basically as a precondition to obtaining the ratification of the much debated nafta by 73 32 ilm 1499 (1993) the naalc was created to address labour issues among the three countries. it entered into force on january 1, 1994. like the environmental side agreement, it encourages trilateral cooperation, and, through its commission for labour cooperation (clc), helps enforce existing domestic labour laws. 74 32 ilm 1480 (1993) the naaec is the environmental side agreement to the nafta. it came into force january 1, 1994. the agreement creates a framework to better conserve, protect and enhance the north american environment through cooperation and effective enforcement of environmental laws. 75 the commission for labour cooperation is an international organisation created under the north american agreement on labour cooperation (naalc). the commission is formed of a council of ministers, a cabinet-level body in charge of policy-setting and decision-making consisting of the three labour ministers or their representatives and a tri-national secretariat that provides support to the council and to the independent evaluation committees of experts and arbitral panels the council may establish under the provisions of the agreement. the commission works in close cooperation with the national administrative offices. 76 objectives of the naalc: to improve working conditions and living standards in each party's territory. to promote, to the maximum extent possible, the labour principles set out in the agreement; to encourage cooperation to promote innovation and rising levels of productivity and quality; to encourage publication and exchange of information, data development and coordination, to carry out joint studies to enhance mutually beneficial understanding of the laws and institutions governing labour in each party's territory; to pursue cooperative labour-related activities on the basis of mutual benefit, to promote compliance with, and effective enforcement by an american dilemma: the flow of trade versus the flow of people in nafta 104 congress. it was meant to control undocumented immigration between the united states and mexico77 and to limit the migration of jobs and investment away from any of the parties to the benefit of another party, in this case mexico.78 it does not cover at all the topic of labour mobility or labour standards. the provision for accession to the nafta itself79 does not include the naalc since the naalc was not concluded until about 9 months after nafta was signed and a year after completion of the nafta negotiations.80 this reminds us clearly of how the parties have relegated labour to a tertiary concern, after trade and the environment.81 v. trade, labour standards and migration: links and relationships while one could argue that there is a strong link between the free movement of goods and services and the mobility of people involved in providing them,82 this inter-relationship has been overlooked, ignored or even rejected by those proposing free trade in north america.83 this is in line with most areas of the world using regional trade agreements, such as mercosur and asean, with the eu being a notable exception. on the other hand, the recognition of those links has been the hallmark of the european union since each party of, its labour law; and to foster transparency in the administration of labour law. source: http://www.naalc.org/english/objective.shtml 77 see johnson, above n 22, at 960. 78 see housman, above n 38, at 318. 79 see nafta, above n 1, at art 2204. see gal-or, above n 3, at 383. 80 this is not surprising given that the us didn’t want to deal with migration issues at all. president clinton’s core labour union constituency had much less interest in promoting labour mobility than did president bush i. their professed objective was to force mexico to comply with worker standards, given their concern that this lack of compliance depressed mexican wages. 81 one reason why the naaec is a bit stronger than the naalc is that some environmental groups were willing to trade support of the nafta package for stronger environmental protections. the unions were not; they effectively told the clinton administration that they would continue to oppose nafta regardless of the content of the naalc. 82 some might put it differently, noting that a principal purpose of free trade is to promote job growth in member countries so that workers there can find gainful employment, and not be forced, as a result, to migrate. 83 see joanne d spotts “us immigration policy on the southwest border from reagan through clinton 1981-2001” (2002) 16 georgetown immigration law journal 601. the denning law journal 105 its very beginning, even though implementation has been a “work in progress” over the last five decades.84 according to elizabeth kraus, “the bush administration, which negotiated the agreement, explained that an inclusive position, similar to that in the european community (ec) [now european union] is not necessary to the agreement as ‘the fact of the matter is that what we are negotiating here is a trade agreement, not a social contract. we don’t in nafta try to parallel the kinds of things which the ec, for instance, is engaged in with respect to political and social rights and that kind of things.’”85 experts, especially economists, are not of one mind when it comes to the linkages between social issues and free trade.86 the classical tenet is that growing trade boosts general welfare by reallocating resources, promoting specialization (the “comparative” advantage), and increasing production. that is what many experts, politicians, lobbyists and business leaders believed nafta would do for mexico. the increased trade between the us and mexico would have such a positive ripple effect on mexico’s economy that jobs would be created, the standard of living would grow rapidly, wealth would become widespread and thus immigration of mexicans to the us would slow down to a trickle. mexicans would remain in mexico thanks to the prosperity brought by nafta, and the undocumented immigration problem would be solved.87 however, in a regional trade agreement like nafta or the ec, shortterm adjustment challenges invariably arise along with restructuring problems and the vicissitudes of local economic variables that cannot always be controlled very well.88 ironically, at times, the opening of the borders to the growth of trade between vastly different and unequal economies can unleash serious problems and threaten disruptions in the economy, labour patterns, 84 see kraus, above n 8, at 325. see also christopher j cassise “the european union v the united states under the nafta: a comparative analysis of the free movement of persons within the regions” (1996) 46 syracuse law review 1343, at 1372 and craig l jackson “social policy harmonization and worker rights in the european union: a model for north america?” (1995) 21 north carolina journal of commercial law and international regulation 1, at 14-15. 85 see kraus, above n 8, at 325. 86 jagdeep s bhandari “migration and trade policies: symmetry or paradox?” (2007) 6 journal of international business and law 17. 87 see philip martin, above n 23, at 365. 88 see ann weston “social issues and labour adjustment policies: the canadaunite states fta experience” in r lipsey and p meller, see above n 24. an american dilemma: the flow of trade versus the flow of people in nafta 106 social life, patterns of consumption and cultural expectations of people, especially those in the less affluent and developed party. the widespread introduction of new technologies, the rapidly changing patterns of demand, the pressures of a quickly changing society oriented more and more on conspicuous consumption, and the ever increasing number and strength of competitors in the global sphere can challenge and deeply unsettle any given society.89 this has caused many, including free trade advocates, to realise that growth in trade and commercial integration cannot be isolated from considerations of social policy.90 however, few either in the us or mexico really want to address social policy issues directly. one of the major reasons is that it is expensive. another is that it requires a re-orientation of the mindset towards a more socially progressive or mildly “socialist” policy. the political struggle over the attempt by president obama to address the lack of health care for 40 million americans is a good example of these difficulties. the architects and builders of the european union, which also began life as a free trade area, eventually recognized this. one of the mainstays of the eu have been the convergence and social cohesion funds that transfer considerable amounts of development assistance from wealthier member states to less affluent ones to ensure their rapid growth and smoother transition from developing to relatively developed societies. the reasons are both historical and cultural, including but not limited to the concept of a social welfare state with a real safety net for the less fortunate citizens and nations. this approach has been reduced somewhat in the past 15 years because of increasing costs and diminishing revenues, due in part to an aging population, drastically reduced birth rates, and substantial job losses to cheaper labour areas, especially in southeast asia. initially italy and then greece, spain, portugal and ireland have greatly benefited from this type of assistance. now it is the turn of the newly admitted eastern european member states to receive this help, with the reluctant agreement of some of the former beneficiaries, especially spain.91 the eu is likely unique in this respect. the nafta parties weren’t seeking anything like the level of integration that was contemplated for the eu, although mexico likely would have welcomed it because it would be the nafta member state benefiting the most from it. even the other common markets that have tried to pattern themselves after the eu, such as mercosur and asean, have fallen far short with labour mobility as in most other areas. the 89 see ibid. see also gal-or, above n 3, at 385. 90 see ibid, at 192. 91 there are several types of funds used by the european union to support the development of the “least favoured” regions, interregional cooperation, and making regions more competitive: structural funds, cohesion funds, solidarity funds, ispa, phare, and separd. see http://ec.europa.eu/regional_policy/index_en.htm the denning law journal 107 uniqueness of the eu is that it was indeed eventually able to move towards a single europe in the late 1980s after a period of stagnation.92 vi. reconciling social integration and regional free trad the awareness that the free movement of workers is ideally an integral part of free trade is slowly making some headway.93 it is possible, of course, to be concerned about social impacts without necessarily concluding that the solution is to encourage or permit migration to the wealthier parties. the eu’s experience, however, supports equating recognition of the importance of the social impacts of ftas with favouring a freer movement of people looking for work. as ann weston stated: “there is growing consensus…. that for economic integration to be socially and politically sustainable, there must be greater attention paid to its social impact. this may lead to the conclusion that the process of trade liberalisation should be modified (in terms of the speed and scope as well as the underlying rules of the game) and/or that complementary amendments be made to social policies.”94 one of the major obstacles to this approach is that in the prevailing capitalistic, neo-liberal model that governs production, trade and commerce in the us, labour is just another commodity and labour markets are supposed to behave just like any other market.95 there are signs that president obama would like to change this approach but it is unclear whether he will have any success. thus, it is difficult to sustain a political effort that would recognize the free movement of workers as a fundamental right of all those residing in nafta countries. while it is becoming more recognized that trade and 92 the single european act (sea) was the first major revision of the 1957 treaty of rome. the act set for the european community the objective of establishing a common market by 31 december 1992, and codified european political cooperation, the forerunner of the european union's common foreign and security policy. it came into effect on 1 july 1987. the act's signing grew from the discontent among european community members in the 1980s about the de facto lack of free trade among them. eur-lex.europa.eu/en/treaties/dat/111986u/tif/jol_1987_169_en_0002.tif 93 jagdeep s bhandari “international migration and trade: a multidisciplinary synthesis” (2006) 6 richmond journal of global law and business 113. 94 see ann weston, above n 90, at 192. 95 ian robinson “the nafta labour accord in canada: experience, prospects, and alternatives” (1994) 10 connecticut journal of international law 475, at 488. an american dilemma: the flow of trade versus the flow of people in nafta 108 labour mobility are linked,96 there is reluctance to deepen the discourse to include, for example, under what conditions there could be labour mobility between the us and mexico, for example or to take into consideration the need to agree on labour standards.97 there have been some efforts here but us and canadian labour interests feel that common standards would have a “least common denominator” effect, resulting in looser labour standards in the us and canada. three major approaches to this area have been recognized and labelled as the nafta clean approach, the nafta plus approach and the nafta package approach.98 those who advance the nafta clean approach consider the links between labour and trade not that strong or self-evident. thus, nafta should not take labour issues into serious consideration. the proponents of the nafta plus approach are at the opposite end of the continuum.99 labour rights and environmental protection supporters want nafta to recognize the essential importance of the link between trade and labour and to include strong and enforceable clauses to address it. this should be done also in preparation for a possible deepening of nafta. the growth of china, india, and brazil especially may make it not only attractive but necessary for their survival for the nafta countries to consider moving forward with a deeper union, going beyond being only an fta in order to be competitive, face jointly threats originating especially in asia, and survive. the creation and implementation of provisions protecting labour and the environment and the creation of a strong mechanism to address labour, environment and trade-related problems and disputes are considered indispensable for the orderly and successful deepening of nafta and for its eventual expansion.100 it must be recognized that there are nuances in all of this. not all those seeking recognition of these links are interested in encouraging immigration. they may actually want the opposite, which is the creation of more jobs and 96 bill ong hing “nafta, globalization and mexican migrants” (2009) 5 journal of law economics and policy 87. 97 bill ong hing “immigration policy: thinking outside the (big) box” (2007) 39 connecticut law review 1401. 98 see housman, above n 38, at 306-07. the trans-border issue covers undocumented migration, social dumping across the border and labour and environmental standards in the maquiladoras, immigration enforcement and related smuggling, trafficking and violence, etc. see also amanda e schreyer, “human smuggling across the usmexico border: us laws are not stopping it” (2006) 39 suffolk university law review 793. 99 ibid, at 319. 100 ibid, at 321-22. the denning law journal 109 labour rights in mexico, to keep additional mexican immigrants home. the theory here is that a labour surplus would depress wage rates in the us. however, this is not necessarily so. the opposite can also happen, as the eu’s experience demonstrates. the free movement of people in the eu has not necessarily or significantly depressed wages in the wealthier eu countries.101 on the contrary, it has increased wages in the poorer ones to the point that some international companies, including american ones, that established factories in eastern europe, are already moving them out of there because labour has become too costly in just a few years. the nafta package approach includes the nafta, the naalc and the naaec. it is the compromise approach attempting to mesh labour and environmental issues with free trade interests.102 it would require new member countries to adopt the entire package, just as the eu requires new member states to accept the so-called acquis communautaire103 and enforce existing laws and regulations accordingly.104 this is in consonance with what occurs now with the u s ftas agreements subsequent to nafta. the labour and environmental provisions are part of the fta, not side agreements, and are subject to the regular government to government dispute settlement mechanisms. one could argue that action is needed especially since the nafta, while addressing the restricted migration of professional directly, leaves out the low-skill and low-income sector.105 yet it is specifically that sector that presents the biggest undocumented immigration challenge to the united states, while at the same time former president george w. bush, countless politicians and many business leaders have constantly stressed how much the 101 notwithstanding the well-known “polish plumber” debate in germany where some people, especially plumbers, argued that day immigrants from nearby lowerwage countries were forcing down blue collar earnings by unfairly competing with local labour by means of charging considerably less for their services. 102 ibid, at 323. see also gal-or, above n 3, at 387. 103 the french term acquis communautaire is used in european union law to refer to the total body of eu law accumulated so far. during the process of the enlargement of the european union, the acquis is divided into 31 chapters for the purpose of negotiation between the eu and the candidate member states. 104 for a good comparison of the eu and nafta and an assessment of nafta in comparison with the eu, see m jeannette yakamavich “nafta on the move: the united states and mexico on a journey toward the free movement of workers: a nafta progress report and eu comparison” (2002) 8 law and business review annuals 463. for an analysis of mexican president fox’s vision of nafta becoming like the eu, see jennifer e harman “mexican president vicente fox’s proposal to expand nafta into a european union-style common market: obstacles and outlook” (2001) 7 law and business review annuals 207. 105 see molot, above n 27, at 171. see also gal-or, above n 3, at 391. an american dilemma: the flow of trade versus the flow of people in nafta 110 u s economy needs and benefits from low skills workers typically believed to do jobs that americans do not want any more.106 that was the main stated rationale that propelled, for example, the 2008 proposals by the george w bush white house to create a guest worker programme.107 while it may be true that most of those concerned with the weak treatment of labour issues under nafta are not interested in promoting migration, documented and undocumented migration continues unabated and is growing within nafta and worldwide.108 moreover, we have come to realise that trafficking in human beings is a very large and lucrative business and one of the most shameful phenomena that characterise globalisation.109 to continue arguing that creating better jobs in mexico (or other countries) will keep would-be immigrants home is simply not working, especially in light of the fact that the relatively better jobs that the “maquiladoras” offered mexicans in border towns with the u s have significantly diminished. quite a few of the “maquiladoras”110 built with great hopes of improving the mexican economy, creating large employment and keeping mexicans in mexico, are now closed,111 the jobs gone to china and other even cheaper countries in south 106 the ambivalent and opportunistic policy and enforcement of the immigration laws by the current administration is illustrated by the fact that in 1999, under president bill clinton, the us government collected $3.69 million in fines from 890 companies for employing undocumented workers. in 2004, under president george bush, the federal government collected $188,500 from 64 companies for such illegal employment practices. and in 2004, the bush administration levied no fines for us companies employing undocumented workers. the penalty exacted under the bush white house was quite inconsequential for most medium and large businesses (an average of $41,460 under the clinton administration and $2,945 under the bush administration). http://usliberals.about.com/od/immigration/a/illegalimmi_2.htm 107 see michael j mayerl “proposed guest worker statutes: an unsatisfactory answer to a difficult, if not impossible, question” (2002) 6 journal of small and emerging business 559. 108 teresa a miller “a new look at neo-liberal economic policies and the criminalization of undocumented migration” (2008)61 smu law review 171. 109 www.state.gov/g/tip/rls/tiprpt/2009. 110 at one point, there were more than 2,700 maquiladoras in mexican border states. presently, it is estimated that there are 2,000 maquilas plants still in business, with employment probably around 800,000. maquiladoras (export-oriented factories) on the border account for about 71 percent of all such factories in mexico. the maquiladora industry is the major legal source of mexico's export earnings. http://www.migrationinformation.org/feature/display.cfm?id=407 111 it has been reported that more than 500 plants have closed since the beginning of the decade, causing a loss of several hundred thousand jobs. china is bolstering its status as the world's cheap assembly export location. http://geography.about.com/od/urbaneconomicgeography/a/maquiladoras.htm the denning law journal 111 asia.112 the economic crisis impacting much of the manufacturing world has affected mexico as well. those reputedly better paying jobs are simply not materializing or having a long life and the migration continues unabated.113 studying more closely the eu experience and overcoming certain fears and prejudices, including plain racism114 as well as economic fears, may be needed for the u s to continue to be competitive and survive the onslaught of chinese and other growing countries’ manufactured goods.115 mexico has also been seriously impacted by cheap chinese imports, for example in the footwear, consumer electronics and textile/clothing sectors. thus there is a common interest in deepening the nafta in order to effectively counteract negative trade developments and survive, learning from and following the eu’s experience. a growing mexican immigration into the united states cannot be stopped116 even though u s policy makers will continue trying, if not to stop 112 federal reserve bank of dallas, beyond the border: have mexico maquiladoras bottomed out? southwest economy, issue 1, jan/feb 2004. 113 ranko shiraki oliver “in the twelve years of nafta, the treaty gave to me ... what, exactly?: an assessment of economic, social, and political developments in mexico since 1994 and their impact on mexican immigration into the united states” (2007) 10 harvard latino law review 53. 114 essay: “aliens” in our midst post-9/11: legislating outsiderness within the borders, defining america through immigration policy (mapping racisms series). the “huddled masses” myth: immigration and civil rights. by kevin r johnson, reviewed by raquel aldana & sylvia r lazos vargas. 115 it depends naturally on who one is talking to. one could argue that us competitiveness with china would be most enhanced if mexican production by us firms were increased so that only parts and components are made in the us the argument is that there is no effective means of dealing with high us wages in some industries. 116 the total number of mexicans in the us, according to the pew hispanic center mid-decade estimate, is almost 27 million. mexicans constitute 64% of all hispanics in the united states and 30.7% of all foreign born in the united states, by far the largest hispanic group and 9% of the overall united states population, the third largest ethnic group after whites and blacks (all hispanics are the second largest group at 14.5%). the united states issued 906,622 non-immigrant visas for mexicans in fiscal year (fy) 2005. in addition, 732,566 laser visas (which replaced the old border crossing cards for those who live on the mexican side of the border but work in the united states) were issued in fy 2005. as of march 2006, the estimated unauthorized population in the united states was 11.5 to 12 million, of which 4.5 to 6 million entered legally with inspection and 6 to 7 million entered illegally without inspection. an estimated 6.2 million (or 56 percent) of all unauthorized migrants are from mexico. (sources: pew hispanic center estimates based on march 2005 current population survey; dhs reports; http://www.migrationinformation.org/feature/display.cfm?id=407). an american dilemma: the flow of trade versus the flow of people in nafta 112 it, at least to slow it down. a critical mass of the mexican-american population has been reached.117 ties between mexicans and their family members in the united states, the geographical land connection between the us and mexico which facilitates traveling back and forth between the two countries and maintains strong affective, language and cultural ties with the place of origin, and the relative ease of travel in today’s high mobility world118 make possible, support and spur the constant flow of migrants to the us and make the need to integrate into the host society less urgent and necessary.119 promoting economic development in mexico, thus providing economic incentives for mexicans not to leave, has been proposed as an outcome of nafta and as the justification to ignore migration issues.120 however, the us has never made a real, serious effort to foster such development like the european investment bank121 in luxembourg or the european bank for reconstruction and development122 in london have done, 117 marc belanger “immigration, race, and economic globalization on the usmexico border: tangled histories and contemporary realities” (2006) 10 journal of gender race and justice 1. 118 even though it has become more difficult to cross the border successfully into the us, with obstacles like the fence built by the us, military air patrols, death in the desert, unscrupulous coyotes, the high cost of paying coyotes as a guide into the united states, etc. 119 it is estimated that there are between 8 and 10 million undocumented workers in the us. for a discussion of employer sanctions as a way to discourage undocumented immigration, see jeffrey l ehrenpreis “controlling our borders through enhanced employer sanctions” (2006) 79 southern california law review 1203. see also daniel a scharf “for humane borders: two decades of death and illegal activity in the sonoran desert” (2006) 38 case western journal of international law 141. 120 carvana hicks “the nafta aftermath: analyzing a free trade agreement defectively designed to perpetuate poverty and dependency in rural mexico” (2004) 13 currents international trade law journal 49, at 51. 121 the european investment bank (banque européenne d'investissement) is the european union's long-term lending institution established in 1958 under the treaty of rome. a policy-driven bank, the eib supports the eu’s priority objectives, especially european integration and the development of economically weak regions. recently, the bank has also been actively supporting european r&d projects as part of eu's objective of building the world's leading knowledge-based economy. 122 founded in 1991, the european bank for reconstruction and development (ebrd) uses investment to help build market economies and democracies in 30 countries from central europe to central asia. its mission initially was to support europe’s formerly communist countries in the process of establishing their own free market economies. for this reason, despite its public sector shareholders, it invests mainly in private enterprises, usually together with commercial partners. ebrd provides project financing for banks, industries and businesses, both new ventures and investments in existing companies. it also works with publicly owned companies to the denning law journal 113 especially for southern and eastern europe. moreover, as already stated, mexico has suffered considerable economic contraction because of the direct competition of chinese imports, which are cheaper than locally produced goods. thus, the migratory pressure will continue and increase.123 a truly different and forward-looking alternative would be to permit freer legal migration, recognizing and accepting that social and economic forces will continue to provide a strong impetus for migration between mexico and the us124 the issue is, of course, job creation. traditionally the us government has not been willing to devote sufficient resources to this end. however, the dramatic and profound economic crisis of 2009 has forced a change in the role that government plays in the us labour market. there is tremendous pressure on the obama administration to address the unemployment crisis, officially at just below 10% nationwide at the end of 2009 but in reality around 18% or more. the massive governmental intervention to save and stabilize the economy, especially the stock market, banks, insurance and automotive sectors, has altered the relation between the u s government and the u s economy, industry and people. the health care reform, especially if a public option is successfully included, is also a powerful and undeniable indication of the major role that the government is taking in the ordinary lives of americans. while the u s is not becoming any time soon a “state providence” that provides for its citizens from the cradle to the grave as in europe, particularly in scandinavian countries, one can argue with considerable strength that the classic and mythical “self help” model of americans, solving their own problems without the government’s intervention, is pretty mythical, at best a relic of an xviii century farming and ranching society where circumstances and lifestyle made self-help often the only available solution to life’s problems. the eu opening of the frontiers of the more affluent countries to the free circulation of “poorer cousins” first from the south (italy, greece), then the southwest (spain, portugal), and most recently the east (poland and other former eastern soviet block countries) of europe can serve as a model,125 if support privatisation, restructuring state-owned firms and improvement of municipal services. the ebrd’s mandate stipulates that it must only work in countries that are committed to democratic principles. 123 “border-crossing deaths have doubled since 1995; border patrol’s efforts to prevent deaths have not been fully evaluated” (pdf). government accountability office, august 2006, p 42. http://www.gao.gov/new.items/d06770.pdf. 124 philip i martin “economic integration and migration: the case of nafta” (1999) 3 ucla journal of international law and foreign affairs 419, at 423. 125 see christopher cassise “the european union v the united states under the nafta: a comparative analysis of the free movement of persons within the region” (1996) 46 syracuse law review 1343. an american dilemma: the flow of trade versus the flow of people in nafta 114 and when the us is prepared to foster a “wider and deeper” nafta, which does not seem very likely in the short or medium term. however, the world has changed dramatically just in the last year as the bowing of president obama to japan’s emperor, a gesture widely criticized, his praiseful and subdued statements about china vis-à-vis the u s and the decline of the dollar clearly (and painfully) indicate.126 while it is easier to move u s factories to mexico, china, or vietnam, given the zero or low tariffs on most imported goods other than textiles and clothing, there is a long term high price to be paid for the gradual but inevitable loss of technical know-how and manufacturing innovation and for the loss of employment that affects not only individuals and their families but their entire communities as well. an amendment to nafta dealing with the integration of the regional movement of labour, including americans working in mexico, would be groundbreaking.127 while president obama was focused, when advocating nafta amendments in his campaign in 2008, on improving the enforcement of the labour and environmental obligations vis-a-vis mexico, and never suggested amendments relating to migration, events in the world, and especially the us economy, may force his and congress’s hand on this. to his credit, the administration has announced a new effort to convince congress to enact immigration reform in a manner that would deal reasonably with the 12 million undocumented aliens now in the us. one does not need to be overly pessimistic to know that such measure would be nothing more than a band-aid, a stopgap in a continuing migratory march towards richer countries worldwide. the best solution would be to move nafta beyond being merely a free trade area and eventually, long term, progress through various steps to become more and more like the eu. for instance, nafta should move from being simply a fta to becoming a customs union, then to having a joint economic and monetary policy, then to further legal and economic harmonization, the formulation of a common security and immigration policy, and finally reaching political integration and adopting a common foreign policy.128 this would require that all three nafta members, but especially mexico, make a broad variety of legal, economic, tax and policy changes. 126 see kevin r johnson “regional integration in north america and europe: lessons about civil rights and equal citizenship” (2001) 9 university of miami international and comparative law review 33 (2001). 127 elizabeth l gunn “regionalizing labour policy through nafta: beyond president bush’s temporary worker proposal” (2005) 28 boston college international and comparative law review 353, at 369. 128 stephen zamora “a proposed north american regional development fund: the next phase of north american integration under nafta” (2008) 40 loyola university chicago law journal 93. the denning law journal 115 mexico was already forced to make some changes with nafta but not in terms of rule of law, tax and energy policies, etc. obviously, the us economy, even in boom times,129 could not possibly absorb the 40-50 million mexicans (and additional central americans traveling to the us through mexico) that some estimate would move or attempt to move to the u s, if given the chance. thus, adopting the four eu’s freedoms as the basic law of nafta: freedom of movement of capital, goods, services and people130 would require a considerable evolution of nafta over a number of years. a factor working in favor of a deeper union is the eventual slowing down in mexico’s population growth, reducing the labour pool ready to emigrate. whether the politicians and the voters in the us will acknowledge and accept that a mexican presence in this country is inevitable and unstoppable is not all certain at this point, especially in the post 9/11 and current economic crisis environment.131 however, americans may have to come to accept that fundamental equations of power have been and are changing in the world and that the days of the u s unfettered, unchallenged and single-handed preeminence and dominance in the world, especially in the world’s economy, are counted. the eu adopted the four freedoms and implemented them over a 50-year time period, at times with tremendous resistance, because of the realization that not doing so would mark the end of europe’s way of life and wealth. it is argued here that there are strong enough indicators to support an eventual expansion of nafta to include the free movement of people (workers) as a long-term objective and as part of a deeper and broader regional integration, which also presupposes substantial reforms, especially in mexico. not doing so will be at the future’s peril of the us. 129 gordon h hanson, kenneth scheve, matthew j slaughter, and antonio spilimbergo (may 2001), immigration and the us economy: labour-market impacts, illegal entry and policy choices, retrieved 2008-04-18, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=296108; 130 dara cox bachman “forget nafta: how the us can obtain improved protection of copyrighted goods in mexico through the creation of an open united states-mexico border” (2005) 24 pennsylvania state international law review 427. 131 for a guarded view of the future of nafta post 9/11, see lisa j bauer “the effect of post 9/11 border security provisions on mexicans working in the united states: an end to free trade?” (2004) 18 emory international law review 725. see also hale e sheppard “salvaging trade, economic and political relations with mexico in the aftermath of the terrorist attacks: a call for a re-evaluation of us law and policy” (2002) 20 boston university international law journal 33. for the purposes of right to self-determination, how does one define people in context of kashmir 1 the denning law journal 2010 vol 22 pp 1-34 defend my castle: is the uk in violation of article 8 of the european convention of human rights? per t lindberg∗ abstract since the 1990s approximately 700 000 properties have been repossessed in the uk by mortgagees. while encouraging its citizens to access mortgage finance, the uk government has failed to provide corresponding legal protection and an effective regulatory framework to curtail unscrupulous lenders. what, if any, is the uk government’s responsibility in protecting its mortgagors from losing their homes? by utilising the relatively newfound doctrine of positive obligations, this article elaborates on the extent to which the uk may be held accountable under art 8 of the european convention of human rights. by rebutting the relevance of the private and contractual nature of the mortgage relationship, arguing for the ability to enforce socioeconomic rights and upgrading the concept of home in legal discourse, this article contends that the uk is in breach of art 8 of the echr. this contention is a crucial step towards reformulating states’ role and responsibility under the echr and, if elaborated on by the judiciary, will potentially prompt political action to reform the law of mortgages in the uk. introduction under what hobbes labelled the ‘social contract’1 between citizen and state, what in today’s sophisticated world can both parties expect? in return for dominion the people expect protection; protection against foreign states but also from other citizens and at times even themselves. this text aims to test the boundaries of this assertion in regards to a citizen’s home, acquired and deprived through mortgage finance. the housing market in the uk has developed into a powerful force to be reckoned with where mortgage finance ∗ llb, university of hull law school. the author would like to thank dr whitehouse for her perspicacity and perspicuity 1 term used by t hobbes leviathan (london: penguin, 1968). defend my castle: is the uk in violation of article 8 of the european convention of human rights? 2 has become readily available to financially incapable individuals creating unsustainable home-ownership. during the latter half of the 20th century, successive governments have actively encouraged home-ownership through a range of policies including the deregulation of the financial market, leaving citizens potentially susceptible to unscrupulous lending practices. without either adequate legal protection in repossession proceedings or an effective and potent regulatory framework to rein in miscreant lenders, mortgagors have arguably been abandoned by the state to fend for themselves. when faced with a repossession order, some have stood up and fought for their homes by turning to various legal avenues including claims that the mortgage agreement is unfair and imbalanced.2 others have turned to the european convention of human rights (echr) and argued that repossession amounts to a breach of article 1 protocol 1, the right to peaceful enjoyment of one’s possessions. the courts have seen attempts to invoke article 8 of the echr, the “right to respect for private life, family life and home”, against the mortgagee. however, although the means of defending one’s home against repossession has shifted, the end result has remained largely the same: loss of home. since the 1990s the uk mortgage market has claimed approximately 700,000 properties through repossession.3 naturally, this leads to questions such as, how, why and what can be done to protect the sustainability of homeownership for the uk’s most vulnerable citizens. in attempting to answer these questions, this text explores an alternative route which aims to defend the mortgagor’s home against unscrupulous mortgagees. this text will focus on the uk government and scrutinise its failure to protect the home-owner. within the framework of the echr and its rather newfound doctrine of positive obligations, i will hold the uk accountable under art 8 for failing to protect mortgagors’ homes, as the uk has actively encouraged homeownership while providing inadequate legal protection and ineffective regulatory framework to curtail perilous lending practices; factors which conjunctively precipitate home repossessions. the first part of this text will examine uk housing policy during the latter half of the 20th century, financial deregulation and the legal and regulatory framework in regards to repossessions. the second part will lead on to elaborate on the echr doctrine of positive obligation and how this can be utilised to hold the uk accountable under art 8. the third and final part will then elaborate on appropriate measures to take and their potential effects on the housing market as a whole. 2 for arguments of unfair terms see eg falco finance ltd v gough (october 28th, 1998, macclesfield county court, unreported). 3 summarised from data provided by the council of mortgage lenders, available at http://www.cml.org.uk/cml/statistics. http://www.cml.org.uk/cml/statistics the denning law journal 3 uk housing policy by direct and indirect encouragement, successive governments have steered the uk towards what the conservative government in 1955 labelled a ‘property-owning democracy’.4 today, the housing market consists of just over 70% home-owners5 as compared with around 10% at the beginning of the twentieth century.6 why this radical increase? during the inter-war period chamberlain summated the rationale behind encouraging homeownership by asserting that “every spadeful of manure dug on, every fruit tree planted, converted a potential revolutionary into a citizen”.7 in other words, as a home-owner you were anchored to society, preferring the status quo thus bringing greater stability to the polity as a whole. the snowball had now started rolling and soon home-ownership was propagated into a deep-rooted desire in every citizen’s heart.8 thus, housing policy became a pivotal ingredient in both the conservatives as labours’ electoral campaigns during the 1950s-1990s. importantly, increased home-ownership and decreased public rented housing effectively shifted housing responsibility from the state to the individual. so what have the 20th century governments actually done to encourage and enable its vast majority of citizens to buy their home? in a nutshell, the government has gradually but effectively sold off its own housing stock and fiscally incentivised its citizens towards house purchase. vehicles were launched to encourage first-time buyers into the market9 and schemes of subsidising interest-payments, such as mortgage interest tax relief (mitr) or income support for mortgage interest (ismi), were increasingly used to 4 n harris competition and the corporate society (london: methuen, 1972). 5 stephens et al housing market recessions and sustainable home-ownership (joseph rowntree foundation, july 2008) p 3. 6 a murie “secure and contended citizens? home ownership in britain”, in a march and d mullin housing and public policy: citizen, choice and control (open university press, 1998) p 81. 7 argued in the times 1920, see k feiling the life of neville chamberlain (london: macmillan, 1946) p 86. 8 see the wording of 1971 white paper fair dealing for housing “home ownership is the most rewarding form of housing tenure”; labour government’s 1977 housing policy review: “for most people ones home is a basic and natural desire...the widening entry into home ownership will help solve housing problems...as well as satisfying deep seated social aspirations ”; or the conservative secretary of state for the environment, michael heseltine in 1980 (hansard): “there is in this country a deeply ingrained desire for home ownership.” 9 local government act 1974 allowed local authorities, new towns and housing associations to grant low-start mortgages where capital and interest payments were deferred for two years. defend my castle: is the uk in violation of article 8 of the european convention of human rights? 4 incentivise mortgage finance take-up. however, it was not until the instigation of thatcher’s government in 1979, that home-ownership policies really evolved. a) right to buy the ‘right to buy’ scheme under the housing act 1980 proved particularly effective in the pursuit of a property-owning democracy. it provided council tenants with a discount, its percentage depending on the type and duration of tenant tenure, and a right to a mortgage. simultaneously, rents and subsidy arrangements for public renting were being restructured. instead of a ‘needs-test’, a ‘means-test’ was employed to raise rents for the better-off council tenants. suddenly, a vast amount of council tenants became ineligible for public housing subsidies but conveniently qualified for mitr to buy their home under the ‘right to buy’ scheme. b) residualisation one significant consequence of governmental encouragement towards home-ownership is the development of ‘residualisation’.10 by selling off publically owned properties, especially the more appealing and sustainable ones in better and safer areas, the public-rented sector transformed from an acceptable housing choice to a ‘welfare net’ for the least well-off.11 this is important since it, in itself, also incentivises home-ownership. we must not forget that an individual’s feeling of ‘home’ need not depend upon ownership, per se; rather, the sense of security, comfort and even pride home-ownership might bring. the uk housing policy ensured that these qualities would be difficult to find in public-rented accommodation. c) financial deregulation realising that it takes more than active encouragement from the government to increase home-ownership, the thatcher government started deregulating the financial market to, among other aims, assure the availability of mortgage finance. to end the building societies’ monopoly, the conservative government abolished the direct monetary and exchange controls on the banks. this wider financial liberating measure had enormous 10 term established by r forrest and a murie right to buy? issues of need, equity and polarisation in the sale of council houses (bristol: school for advanced urban studies, 1984). 11 ibid, see ch 5. the denning law journal 5 influence on the mortgage market as it effectively eradicated the ‘corset’12 which in turn opened the floodgates to banks. with banks entering the mortgage market, interest rates immediately adhered to market determined rates and the banks’ near unlimited access to wholesale funding radically increased the growth of mortgage lending.13 a mounting mortgage market quickly attracted centralised lenders, most often subsidised by foreign banks, to enter the market. in contrast to the banks, the building societies were statutory restrained to advance mortgage finance through wholesale funding which put them at a severe competitive disadvantage. to level the market, the building societies act (bsa) 1986 and 1997 permitted an increased share of wholesale funding to 50%. the deregulated mortgage market assured greater access to mortgage finance for potential home-owners, both in terms of eligibility and quantity.14 kleinman and whitehead predicted in 1988 that approximately one third of the increase of home-ownership in the 1980s could be attributed to financial deregulation. introducing banks into the mortgage market effectively provided more generous lending criteria and higher loan-to-value ratio. the deregulation of the mortgage market had the effect of increasing sub-prime and self-certified lending, contributing to a vulnerable housing market. by the 1990s, the housing market had become a fungible market where an englishman’s home had become part of the financier’s asset pool; the homeowner had strayed from a citizen to a consumer.15 financial deregulation prompted financial volatility and exacerbated the boom-bust cycle in the housing market.16 12 the “corset” (special supplementary deposits schemes) limited or inhibited the banks’ ability to enter the savings and mortgage market as they were not allowed to expand their interest bearing liabilities. 13 between 1981 and 1991, the number of home-owners grew by 31%. j ford “as safe as houses?” in g goodwin and c grant built to last? reflection on british housing policy (nottingham: roof magazine, 2nd ed, 1997) p 188. 14 m kleinman and c whitehead “british housing since 1979: has the system changed?” (1988) 3 housing studies 3. 15 a concept argued by l whitehouse “the home-owner: citizen or consumer?” in s bright and j dewar (eds) land law: themes and perspectives (oxford: oxford university press, 1998) p 183. 16 d dale-johnson and s gabriel “introduction: deregulation and reform of housing and housing finance markets: recent lessons from western and central europe” (1995) 23 real estate economics 396. defend my castle: is the uk in violation of article 8 of the european convention of human rights? 6 d) retreat unsurprisingly, the housing bubble, facilitated if not created by these housing policies and financial deregulation, burst in the early 1990s. between 1991-1994 one in every five households were unable to pay their mortgage. in the mid 1990s over a million households faced negative equity and repossessions became a reality for at least 1000 households a week.17 despite this, the conservative government effectively restrained the subsidies that had allowed for the radical increase of unsustainable home-ownership. these policies emphasised that mortgagors should not rely on government safetynets, but take care of themselves.18 as murie reflectively stated “the role of the state had permanently diminished”.19 nevertheless, despite financial incentives and safety-nets being substantially reduced during the midto late 1990s, the positive encouragement of home-ownership remains constant. indifferent to its unsustainability, the current government is seeking to expand the homeownership sector beyond its current 70% level to 75%.20 current housing policy aims to increase the annual inflow of home-owners from 140,000 to 200,000, amounting to a net increase of one million home-owners between 2005-2010.21 e) summing up mortgage incentives and support, financial deregulation, demunicipalisation and privatisation enabled lending to ill-suited individuals which became the final thrust towards a housing market dominated by homeowners. with the dream of a property-owning democracy, the governments of 1950-2000s had effectively pushed the uk housing market towards a deregulated market based system, a beast that proved hard to contain. to what extent, however, does the law afford protection against this development? 17 p malpass “the unravelling of housing policy in britain” (1996) 11(3) housing studies 469. 18 see j ford “as safe as houses?” in g goodwin and c grant built to last?, above n 13, p 192. 19 a murie “the modernisation of housing in england” (2009) 100 (4) tijdschrift voor economische en sociale geografie at 544. 20 communities and local government, 2007, noted in stephens et al housing market recessions and sustainable home-ownership, above n 5, p 3. 21 ibid, p 20. the denning law journal 7 when the ink is dry despite ever evolving socio-economic ambiances that have during the 20th century transformed the social function of mortgages, from a device by which landowners release capital22 to a mechanism which has secured widespread home-ownership across the uk, the law of mortgage has remained extraordinarily static. what is particularly noteworthy, and according to whitehouse the very reason why the law of mortgage has been able to remain static, is the overall lack of law governing and defining the mortgage relationship, rendering the device adoptable to varying social functions.23 indeed, the law is predominantly concerned with outlining the formalities and procedures that create the legal device of mortgage,24 however, remain silent as to the contours of the actual mortgage relationship. this legal vacuum has been filled by “contractual negotiations”, limited judicial discretionary powers and non-legal regulatory frameworks.25 through ‘contractual negotiations’ the particulars, for instance, the amount of interest, length of repayments, insurance or arrears provisions of the mortgage relationship are defined. however, to suggest that the mortgage contract is an outcome of contractual negotiations or bargaining is wholly illusory. rarely, if ever, has the mortgagor any say in the contractual terms. what is more, in order to retain control of the mortgage relationship, the mortgagees adopt ‘standardised’ mortgage contracts, which effectively unarm any reliance on consumer protectionist models, leaving the mortgagors with little choice in the matter. this enables the mortgagees to exert considerable control over the content of the mortgage contract, by, for instance, making mortgagors liable for costs incurred by enforcement procedures initiated by the mortgagee. despite the imbalance of power in the mortgage relationship, the law has refused to intervene in the contractual freedom of the parties. this imbalance becomes amplified the moment the mortgagor defaults on his contractual obligations. as nacab stated in 1993, “once in arrears, they [the borrowers] find that the 22 see b rudden “the mortgagee’s right to possession” (1961) the conveyancer and property lawyer 278. 23 l whitehouse “a longitudinal analysis of the mortgage repossession process 1995-2010: stability, regulation and reform” in s bright (ed) modern studies in property law: volume 6, (oxford: hart publishing, forthcoming). 24 law of property act 1925 ss 85(1) and 86(1) as amended by land registration act 2002 s 23(1)(a). 25 l whitehouse, above n 23. defend my castle: is the uk in violation of article 8 of the european convention of human rights? 8 balance of rights and responsibilities has shifted firmly in favour of the lender”.26 in law, the mortgagee holds an inherent right to possession “as soon as the ink is dry”27 on the mortgage document. in practice, the mortgagee will abstain from doing this unless the mortgagor has breached any of his/her contractual obligations, a practice that makes business sense as mortgagees are generally involved with money lending, not property dealing. however, where the mortgagor does fall behind on payments, the right to possession is habitually utilised by mortgagees to facilitate their statutory right to sell28 the mortgaged property and recover the outstanding debt. to assure a vacant sale, the mortgagee requires possession. this is predominately achieved through a court order to avoid criminal liability under s 6 of the criminal justice act 1977. however, importantly, a court order is not required to repossess, as the academically infamous29 case of ropaigealach30 perspicuously illustrated. it is during these court proceedings that the mortgagee’s attempt to realise their security finds its first potential hurdle. under s 36 of the administration of justice act (aja) 1970, the judge is awarded some leeway to intersect in the repossession process. s 36 aja 1970 allows the judge to adjourn, stay or suspend the proceedings for repossession “if it appears that the mortgagor is likely to be able within a reasonable period” to pay the “sums due”. at its birth, several difficulties arose out of the inadequate and equivocate drafting of s 36, particularly in regards to the meaning of ‘sums due’ and ‘reasonable period’. however, this was promptly remedied both through statutory implementation and common law. the case of clark31 and s 8 of the administration of justice act 1973 defined any ‘sums due’ as “only such amounts as the mortgagor would have been required to pay if there had been such provision for earlier payment”. later, in norgan,'32 the court rectified the ‘reasonable period’ ambiguity by establishing the starting point to be the remainder of the mortgage life. accordingly, if a mortgagor falls into arrears 26 national association of citizens advice bureaux dispossessed (nacab: london, 1993) p 1. 27 four-maids ltd v dudley marshall (properties) ltd [1957] ch 317, per harman j. 28 law of property act 1925, s 101: this right is implied into every mortgage agreement and becomes operable as soon as certain conditions are met (lpa 1925, s 103). 29 see m dixon “sorry, we’ve sold your home: mortgagees and their possessory rights” (1999) cambridge law journal at 281, where he argues that ropaigealach revealed a lacuna in s 36 (aja 1970) which may spark new interest in self-help amongst dubious lenders. 30 ropaigealach v barclays bank plc [2000] 1 qb 263. 31 halifax building society v clark [1973] 2 wlr 1. 32 cheltenham and gloucester building society v norgan [1996] 1 all er 449. the denning law journal 9 after three years in a 25-year mortgage, the court had now the discretion to spread the payments of the arrears over the remaining 22 years of the mortgage. crucially, however, the judge is only permitted to exercise this discretion if the mortgagor can prove, beyond doubt, a financial capability of meeting their mortgage obligations; ie as long as arrears are proven, there lies a presumption in favour of the mortgagee. what is noteworthy here is that the underlying rationale of s 36 aja 1970 appears to be exclusively concerned with the financial aspects of the mortgage relationship, which puts the mortgagor in a severe disadvantage. s 36 is uninterested in the conduct of the parties prior to court proceedings, insensitive to the reasons for the arrears, and oblivious to the social ramifications repossession might entail. s 36’s tunnel-visioned approach is evident in the time it takes for the county courts to deal with possession proceedings. the citizens advice bureau’s december 2007 report, set up to fail, revealed that most possession proceedings take no more than ten minutes to conduct.33 although an increase from the mere average of five minutes it took during the financial crisis of the early 1990s,34 it still showcases the simplistic approach taken by the courts when determining whether to grant, suspend or adjourn possessions. as the nacab regrettably reflected in 1993, “[b]orrowers can find that the hearing at which they lose their home is shorter than the appointment they would be given by their local gp . . .”35 consequently, whereas the court judge is afforded very limited discretion in possession proceedings, the mortgagees retain their law-given right to decide when and how to take possession. what is more, evidence suggests that court proceedings are often pursued by mortgagees to entice repayment of monies owed and not to actually take possession of the property.36 this ‘debt recovery’ strategy exacerbates the mortgagor’s situation as they are often contractually bound to pay court fees and ancillary administrative costs.37 the repossession process illustrated above has given rise to widespread academic and judicial criticism. whitehouse accentuates that the “district judges afford the economic interests of the mortgagee a disproportionate 33 citizens advice bureau set up to fail: cab clients’ experience of mortgage and secured loan arrears problems, december 2007, para 4.6. 34 nacab, above n 26, p 28. 35 ibid. 36 see citizens advice bureau et al turning the tide? evidence from the free advice sector on mortgage and secured loan possession actions in england in july 2009, december 2009; l whitehouse “the mortgage arrears pre-action protocol: an opportunity lost” (2009) 72 (5) modern law review at 810. 37 court fees are typically around £600 per hearing. l whitehouse, ibid. defend my castle: is the uk in violation of article 8 of the european convention of human rights? 10 degree of protection”38 and omar asserts how clearly “the creditor is to be preferred in any balancing exercise”.39 indeed, numerous doubts have been cast upon the centuries old mortgage law truism that possession is an inherent right of the mortgagee. as dixon questions, “if the mortgage really is no more than security for money lent, why should the manner of its creation . . . grant one of the parties a pre-eminent right to the land rather than a controllable remedy for its enforcement?”40 rather, dixon suggests, along with several academic colleagues, the right to possession should be transformed into a genuine remedy, enforceable through a court order. this would arguably strike the correct balance between the rights of the mortgagee and mortgagor. although there have been and still are strong academic claims in respect of the inadequacy of the legal protection afforded to residential mortgagors, whitehouse correctly informs us that the mortgagor’s vulnerability primarily emanates from a “complete failure by the central government to regulate the activities of mortgagees”.41 as we have seen above, the ultimate decision to repossess lies with the mortgagee and it is the failure to regulate this discretion that has allowed the disproportionate power relationship to exacerbate within the mortgage relationship.42 although whitehouse made this claim before the establishment of today’s regulatory framework (discussed below), as this framework is not regulated by law and merely serves as guidelines through ‘administrative fiat’, the assertion still holds a substantial truth. regulation – regulate! the conservative governments of 1979-1997 relied on market forces to ‘self-regulate’ the mortgage market through choice and competition.43 as long as there is competition in the market there was choice and these two 38 l whitehouse “the impact of consumerism on the home owner” in d cowan housing: participation and exclusion. collected papers from the socio-legal studies annual conference 1997 (aldershot: ashgate, 1988) pp 138 -139. 39 p omar “recovery of secured property by mortgagees: the balance of interests” (2005) 16(11) international company and commercial law review, at 445. 40 m dixon, above n 29, at 283. 41 l whitehouse, above n 38, p 127. 42 ibid. 43 this is evident through a number of deregulatory measures taken by the conservatives since the 1980s, including the building societies act 1986 and 1997, the purpose of which was to increase scope and availability of mortgage finance to bring “healthy competition into housing and finance” (the former economic secretary to the treasury, ian stewart, (hc deb (1985-6), 89, c 592). the denning law journal 11 would secure adherence to consumer preferences and protection. as the housing crisis of early 1990s illustrated, this was clearly not enough. it was not until 1997, with the repercussions of the 1990s housing crisis still raw, that the council of mortgage lenders (cml) published their first statement of practice on the management of arrears and repossessions. it would take another seven years, with the new regulatory structure under the financial services authority (fsa), for the government to provide a statutory framework for repossessions in regards to first mortgages. however, even though implemented under statute, the mortgage conduct of business (mcob) sourcebook is a non-legal code of practice which mortgagees hold no legal obligation to comply with. succinctly, mcob 13 sets out rules, guidelines and evidentiary provisions of how to adequately, reasonably and equitably deal with cases of arrears and repossessions. needless to say, as the mcob code of practice lacks legal backing it is unfortunately neither consistently nor uniformly followed by mortgage providers.44 regrettably, the fsa has been impotent to date in ensuring uniform and consistent adherence to mcob 13, particularly amongst sub-prime, specialist lenders.45 shelter has remarked that the variation of practices amongst lenders has resulted in a ‘lender lottery’ where some borrowers have been “particularly vulnerable to harsh and unfair treatment”.46 the failure to impose uniform regulatory compliance proves the fsa’s inability to regulate lenders effectively.47 44 citizens advice bureau mortgage remedies (possession and sale) review lines of inquiry: response by citizens advice to the ministry of justice (london: citizens advice, january 2009) 13 and financial services authority mortgage effectiveness review: arrears findings (illuminas, london, research report project no 30895, august 2008). 45 see financial services authority mortgage effectiveness review: arrears findings, above n 44; mortgage market review, october 2009; and joint research undertaken by adviceuk, citizens advice, money advice trust and shelter mortgage and secured loan arrears: adviser and borrower surveys april 2009, may 2009. 46 house of commons treasury committee mortgage arrears and access to mortgage finance fifteenth report of session 2008–09, ev 132 para 3. 47 this failure has prompted the fsa to propose to convert mcob 13 forbearance guidelines into binding rules. this, the fsa hopes, will assure greater forbearance amongst mortgage lenders and ultimately curb the continuing rise of mortgage repossessions. however, while the effort is laudable, it is far from satisfactory as it will not deal with the ultimate problem, which is the fsa’s inability to monitor and enforce compliance. see financial services authority, mortgage market review: arrears and approved persons january 2010. defend my castle: is the uk in violation of article 8 of the european convention of human rights? 12 a) the pre-action protocol the latest attempt to regulate the mortgage market in regards to repossession was brought about as a result of the current financial crisis. with the rapid increase of mortgage repossessions since the beginning of 2008,48 the civil justice council implemented the pre-action protocol for possessions claims based on mortgage or home purchase plan arrears in respect of residential property (the protocol), in november 2008. i shall not go into its details here as this has been adequately dealt with elsewhere,49 however, suffice it to say that upon closer examination it serves rather as a reflection, or reminder, of mcob. the lack of compulsory wording and sanctions for non-compliance are the main reasons why the protocol has been argued to constitute an ‘opportunity lost’50 in answering the concerns of poor arrears management and premature repossession proceedings.51 the financial services consumer panel has proclaimed the protocol to be ‘relatively toothless’ and “lack . . . clarity about how much judges can take failure to keep to these rules into account in a possession action”.52 evidence in support of these claims has been offered by citizens advise bureau et al.’s december 2009 report, turning the tide?,53 which summates data drawn from interviews with client advisors in 452 repossession cases in july 2009. the report concluded that in a third of recorded cases54 the advisers considered the lenders had not complied with the protocol.55 although i would not go as far as mcauslan in claiming that the protocol is a “complete waste of time and paper”,56 there is however no doubt that more must be done in order to curtail unscrupulous mortgagees. 48 40,000 repossessions in 2008, 46,000 in 2009, estimated 53,000 in 2010, see repossession statistics from council of mortgage lenders, available at http://www.cml.org.uk/cml/media/press/2541. 49 l whitehouse, above n 36, at 793. 50 ibid. 51 see also p mcauslan “mortgage arrears: the repossession crunch” (2009) 24 (3) journal of international banking and finance law. 52 house of commons treasury committee, above n 46, written evidence from the financial services consumer panel, ev 151 paras 5-6. 53 citizens advice bureau, shelter, advice uk, turning the tide?, above n 36. 54 101 out of 300 cases. 55 citizens advice bureau, shelter, advice uk, turning the tide?, above n 36, p 12 . 56 p mcauslan, above n 51, at 138. http://www.cml.org.uk/cml/media/press/2541 the denning law journal 13 b) summing up consequently, not only is the law governing repossession proceedings inert, it provides disproportionate protection to the mortgagee’s economic interests. the law leaves no scope for deliberations into extenuating circumstances or considerations of the psychological and social ramifications repossessions might entail. what is more, the regulatory framework in place has proven to be a meretricious code of practice filled with terms that provide no effective curtailment of questionable lending practices. with that in mind, the question we must now ask is, can we hold the uk accountable for its failure to protect financially vulnerable mortgagors from losing their homes? the following section will elaborate on this by utilising the european convention of human rights’ jurisprudential doctrine of positive obligation, as applied to art 8. positive obligations under the echr the european convention of human rights (echr) is generally concerned with curtailing state actions from interfering with individual rights, what we understand as negative obligations. however, the convention demands also, explicitly or impliedly, positive obligations upon the state; ie obligations to take positive measures to protect individual rights. the right to free legal representation (art 6) or the right to education (art 2 of prot 1) provide examples of where positive steps are required to be taken by the state. kenna illuminates the neo-liberal economic and social policy approach which has dominated the political landscape in much of the western world since the 1980s, contributing to a “rolling back of the state, reduction and privatisation of welfare services”.57 this in turn has impelled the european court of human rights (echr) to step in and remind the state of its responsibilities towards its people. starmer directs us to the fact that the raison d’être of establishing the echr was not only to protect us from an ‘over-mighty’ government, but also to safeguard ‘human dignity’.58 with the aftermath of the second world war, we were not content with theoretical or superfluous rights; rather, we wanted potent and effective protection. this has 57 p kenna “housing rights: positive duties and enforceable rights at the european court of human rights” (2008) 2 european human rights law review, at 196. see also doherty et al the changing role of the state: state intervention in welfare and housing, (brussels: feantsa, 2003); s strange “the declining authority of states” in held et al (eds) the global transformation reader (cambridge: polity press, 2nd ed, 2003) ch 11. 58 k starmer “positive obligations under the convention” in j jowell and j cooper understanding human rights principles (oxford and portland, oregon, 2001) p 144. defend my castle: is the uk in violation of article 8 of the european convention of human rights? 14 not gone unnoticed by the echr. in plattform ärtze fur das leben v austria,59 art 1160 was engaged when demonstrators were attacked by counter-demonstrators which effectively hindered their right to assembly. as art 11 is a qualified right and the austrian government did not in fact interfere with the applicants’ rights, ie the government honoured its negative obligation; the austrian government claimed there was no such breach. unexpectedly, the echr held no support for this assertion and stated that: “[g]enuine, effective freedom of peaceful assembly cannot . . . be reduced to a mere duty on the part of the state not to interfere . . . like article 8, article 11 sometimes requires positive measures to be taken . . .”61 indeed, the last two decades has experienced an increasing echr jurisprudential trend of recognising a doctrine of positive obligations,62 especially in regards to art 8, “the right to respect for his private and family life, his home and his correspondence”. in lopez-ostra v spain,63 the echr imposed a positive obligation on the local authorities to contain pollution from a waste treatment plant to protect the applicant’s art 8 rights. similarly, in moreno gomez v spain,64 the state’s failure to regulate nightclubs’ noise disturbances violated a positive obligation to respect the applicant’s home under art 8. further, the echr explicitly stated in moldovan v romania:65 “there may, in addition to this primary negative undertaking be positive obligations inherent in an effective respect for private or family life and the home. these obligations may involve the adoption of measures designed to secure respect for these rights even in the sphere of relations between individuals . . .”66 59 [1988] 13 ehrr 204. 60 right to peaceful assembly. 61 plattform ärtze fur das leben v austria, above n 59, para [32]. 62 guerra and others v italy [1998] 26 ehrr 357; z and others v uk [2002] 34 ehrr 97; on the right to housing: selcuk and asker v turkey [1998] 26 ehrr 477; bilgin v turkey [2003] 36 ehrr 50; dulas v turkey judgment of 30 january 2001, application no. 25801/94; orhan v turkey judgment of 18 june 2002, application no. 25656/94; james and others v uk [1986] 8 ehrr 123; mellacher and others v austria [1990] 12 ehrr 391. 63 [1994] 20 ehrr 277. 64 [2004] 41 ehrr 40. 65 [2005] 44 ehrr 16. 66 ibid, para [93]. the denning law journal 15 this is an important statement as rights under the convention are only enforceable vertically, ie against public bodies, and not horizontally, between private parties. yet, the echr has vehemently maintained that where private parties’ action adversely affect another private party’s convention rights due to inaction by the state, the state may be held liable via the doctrine of positive obligations.67 as starmer espouses, the fact that the echr imposes positive obligations upon the state is now flagrant, rhetorically, he rather questions when and to what extent.68 a) respect, protect and fulfil in 1980, shue famously introduced an alternative way to frame states’ human rights obligations by asserting a tripartite typology: ‘to avoid depriving’, ‘to protect from deprivation’ and ‘to aid the deprived’.69 eide later built on this thought and formulated the tripartite terminology of defining state obligations to respect, protect and fulfil.70 to respect requires the state to refrain; protect to prevent; and fulfil to take appropriate legislative, budgetary and judicial action.71 for our purposes, eide informs us that the obligation to protect: “requires from the state and its agents the measures necessary to prevent other individuals or groups from violating the integrity, freedom of action or other human rights of the individual including the prevention of infringements of his or her material resources”.72 67 see also powell and rayner v uk a/172 [1990] 12 ehrr 355, hatton and others v uk [2003] 34 ehrr 1. 68 k starmer, above n 58, p 140. 69 h shue basic rights: subsistence, affluence and u.s. foreign policy (princeton university press, 2nd ed, 1996) p 52. 70 a eide “realisation of social and economic rights and the minimum threshold approach” (1998) 10 human rights law journal. see e koch’s criticism of the tripartite typology in “dichotomies, trichotomies or waves of duties?” (2005) 5(1) human rights law review, where she cynically argues that the only viable components in the tripartite typology are the first and last one as they are the only ones that discusses the relationship between the individual and state, thus rendering the typology merely a reformulation of the negative/positive dichotomy. 71 see further typologies, quadruple approach by van hoof “the legal nature of economic, social and cultural rights: a rebuttal of some traditional views” in p alston and k tomasevski the right to food (netherlands : martinus nijhoff, 1984) p 106; quintuple approach by h steiner and p alston, international human rights in context (oxford: oxford university press, 2nd ed, 2000) p 182. 72 a eide, above n 70, at 37. defend my castle: is the uk in violation of article 8 of the european convention of human rights? 16 this approach is enshrined in echr jurisprudence through cases such as lopez-ostra, moreno gomez and moldovan where states were rendered liable under art 8 (1) for failure to adequately regulate the behaviour of private actors. b) enforceability of socio-economic rights before embarking upon the applicability of the echr doctrine of positive obligation to the uk’s failure to protect mortgagors from the deprivation of their home, i want to spare some words on rebutting extensive contentions that socio-economic rights are unenforceable, inapplicable73 or even legally invalid.74 it is true that socio-economic rights do not match the level of precision as do their civil and political counterparts,75 mainly due to the fact that socio-economic rights are more positive in nature, thus requiring state resources.76 enforcing socio-economic rights is said to have a society-wide impact, going beyond the ‘triadic’ adversarial dispute, with inevitable budget implications. as ngwena argues, socio-economic rights are ‘preponderantly polycentric’.77 indeed, socio-economic rights, being inherently polycentric and resource demanding, fall traditionally within the reign of the democratically elected legislative or executive branches of government rendering judicial review potentially an illegitimate intrusion of the doctrine of separation of powers. however, such a rigid and formalistic approach does not correspond with reality, nor is it preferable. while it is true that the primary role of the judiciary is not to make decisions concerning distribution of national resources, it would be naive to think that the courts never engage in such undertaking. indeed, lord steyn has extra-judicially contended: 73 see m scheinin “economic and social rights as legal rights” in eide et al economic, social and cultural rights, (dordrecht: martinus nijhoff, 2001) pp 29-54. 74 see cr sunstein “against positive rights” (1993) 35 east european constitutional review. 75 see c scott and p macklem “constitutional ropes of sand or justiciable guarantees? social rights in a new south african constitution” (1992) 141 university of pennsylvania law review 1, where they contend that “social rights often suffer from a painful lack of precision with respect to the nature and extent of obligations that attach to the state party”. 76 see m tuchnet “social welfare rights and the forms of judicial review” (2004) 82 (7) texas law review. 77 c ngwena “access to antiretroviral therapy to prevent mother-to-child transmission of hiv as a socio-economic right: an application of section 27 of the constitution” (2003) 18 south africa public law, at 87. the denning law journal 17 “most legislation is passed to advance a policy. and frequently it involves in one way or another the allocation of resources… what i am saying is that there cannot be a legal principle requiring the court to desist from making a judgment on the issues in such cases… there is in my view no justification for a court to adopt an a priori view in favour of economic conservatism. in common law adjudication, it is an everyday occurrence for courts to consider, together with principled arguments, the balance sheet of policy advantages and disadvantages. it would be a matter of public disquiet if the courts did not do so. of course in striking the balance courts may arrive at result unacceptable to parliament. in such cases parliament can act with great speed to reverse the effect of a decision. that is in the spirit of our constitution, and is wholly in accord with the democratic ideal. but there is no need to create a legal principle requiring the courts to abstain from ruling on policy matters or recourse allocation issues.”78 furthermore, both civil-political rights and socio-economic rights are ‘positive’ and ‘negative’ in nature, requiring, albeit to varying extents, allocation of resources. on top of this, socio-economic rights are “. . . indissoluble linked to civil and political rights: together these citizens’ rights and accompanying duties constitute the cornerstone of a free democratic society founded on respect for human rights.”79 this link is apparent within art 6 echr jurisprudence, ‘the right to a fair trial’. although a civil right in nature, art 6 has a recognised social dimension, being the right to free legal assistance which obliges the echr to examine the socio-economic context. the overlapping relationship between civil-political rights and socioeconomic rights has been explicitly recognised in the airey80 case where the echr held: “[w]hilst the convention sets forth what are essentially civil and political rights, many of them have implications of a social or economic nature . . . [t]he mere fact that an interpretation of the convention may extend into the sphere of social and economic rights should not be a decisive factor against such an interpretation; there is 78 lord steyn “defence: a tangled story” (2005) public law, at 357. 79 opinion of the economic and social committee on the citizens’ europe, 23 september 1992, (opinion no. 1037) para 1.2.3. 80 airey v ireland [1979] 2 ehrr 305; see also feldbrugge v the netherlands [1986] 8 ehrr 425; deumeland v germany [1986] 8 ehrr 448 and salesi v italy and schuler-zgraggen v switzerland [1993] 26 ehrr 187 where the echr went further extending protection of art 6 to social security benefits. defend my castle: is the uk in violation of article 8 of the european convention of human rights? 18 no water-tight division separating that sphere from the field covered by the convention.”81 further, there is a related argument that courts are institutionally incompetent to adjudicate in predominately polycentric issues.82 yet, again, this does not reflect reality as courts across several jurisdictions have proven themselves capable of dealing with polycentric issues,83 not least in the uk where we have seen a rapid development during the last decades in terms of standing and evidentiary procedures that involves polycentric public interest disputes. indeed, as pieterse argues, several features of the judiciary make it particularly appropriate to consider socio-economic issues.84 the judiciary retains the capability of providing individualised remedies and speedy solutions as compared to its legislative and executive counterparts.85 well educated, experienced and impartial judges allow a rational and deliberative judicial process leading to equitable results.86 this makes the judiciary a valuable partner in assuring the states’ overall commitment to socio-economic welfare. this is recognised by, for instance, venezuela where the judiciary and the legislature, in van beuren’s words, adopts a ‘constructive constitutional conversation’ in order to fulfil their human rights obligations, rather than engaging in ‘territorial power-struggle’.87 similarly, the constitutional court in south africa, one of the world’s most progressive courts in terms of enforcing socio-economic rights, has held that “it cannot be said that by including socio-economic rights . . . a task is conferred upon the 81 airey, ibid, para 26. 82 see cr sunstein “against positive rights”, above n 74; and d beatty human rights and judicial review: a comparative perspective, (martinius nijhoff publishers, dordrecht, london, 1994) ch 9. 83 see south african cases of government of the republic of south africa the premier of the province of the western cape, cape metropolitan council, oostenberg municipality v irene grootboom and others [2000] 11 bclr 1169(cc); soobramoney v minister of health (kwazulu-natal) [1998] 1 sa cc 765; guyana case of attorney-general v alli [1989] lrc 474; indian cases of olga tellis v bombay municipal corp [1986] air 1; paramand kataria v union of india [1989] 4 scc 286; paschim banga khet mazdoor sabha v state of west bengal [1996] 4 scc 37. 84 m pieterse “coming to terms with judicial enforcement of socio-economic rights” (2004) 20 south african journal on human rights 383, at 395. 85 ibid. 86 ibid. 87 g van beuren “including the excluded: the case for an economic, social and cultural human rights act” (2002) public law, at 464. the denning law journal 19 courts so different from that ordinarily conferred . . . that it results in a breach of separation of powers”.88 polycentric issues arise in almost all disputes before the courts; it is its degree that differs depending on the context. as scott and alston recognise, “just because a court cannot legitimately or competently deal with all – or even many – aspects of a case does not mean that it should deal with none”.89 surely, just because there is a risk of ‘usurping’ the role of elected officials it should not preclude judicial scrutiny of socio-economic issues altogether.90 arguably the judiciary is expected to tip-toe around socio-economic matters to a far greater extent than it does in civil-political ones, possibly resulting in greater adherence to its democratic role within the doctrine of separation of powers. thus, socio-economic rights are not ‘inherently’ non-justiciable, rather the resistance of their judicial inclusion stems from ideological or cultural determinants or indeed political immaturity. as scott and macklem wrote when reflecting on the south african constitution, justiciability is “a contingent and fluid notion dependent upon various assumptions concerning the role of the judiciary in a given place at a given time as well on its changing character and evolving capacity”.91 time and again we find what was once non-justiciable, suddenly is, as the uk courts recently experienced with the enactment of the human rights act 1998. examining echr jurisprudence, the echr have certainly begun realising that stopping short of enforcing civil-political rights no longer suffices as it has become just as important to supervise states’ commitment to protect socio-economic rights, as the doctrine and jurisprudence of positive obligations evidence. parenthetically, if we are to classify socio-economic rights as human rights it necessarily follows that there must be a mechanism which retains the jurisdiction to enforce them. as tushnet points out, “a purported right without an accompanying judicially enforceable obligation is, almost literally, toothless”.92 to deny justiciability of socio-economic rights would render the states their exclusive protectors and violators, thereby entirely stripping them of their human rights characteristics. however, although this article is not arguing a socio-economic right to a home, the doctrine of positive obligations, 88 ex parte chairperson of the constitutional assembly: in re certification of the constitution of the republic of south africa [1996] 4 sa cc, para [77]. 89 c scott and p alston “adjudicating constitutional priorities in a transnational context: a comment on soobramoney’s legacy and grootboom’s promise” (2000) 16 south african journal on human rights, at 242. 90 m pieterse, above n 84, at 394. 91 c scott and p macklem, above n 75, at 17. 92 m tuchnet, above n 76, at 1901. defend my castle: is the uk in violation of article 8 of the european convention of human rights? 20 whereby the state has a responsibility to protect its citizens’ homes, potentially serves as a pivotal step in that direction. consequently, whether socio-economic rights are justiciable is not a question of institutional capacity, competence or legitimacy; it is whether we have evolved far enough in our commitment to human rights. this author holds that europe has and if not, there are few excuses left and this article serves as one indication of the immediacy and importance of taking the next step towards securing our socio-economic human rights. with that in mind, let us examine, as starmer would suggest, how far a state’s positive obligation extends to a mortgagor’s art 8 right to respect for home. in the name of art 8, defend my castle having established the existence of an echr doctrine of positive obligations, this section aims to elaborate whether it can hold a state accountable, under art 8, for failure to adequately protect its citizens’ homes against private actors. the issue of standing before the echr will not be discussed here as it will be dependent upon the particular facts of the instant case.93 what this text aims to elucidate is how to utilise the doctrine of positive obligation when art 8 is invoked in regards to possession proceedings. furthermore, this text also recognises the implication of the human rights act (hra) 1998 as it determines the uk’s application and procedural rules in regards to the echr.94 to reiterate, art 8(1) states “[e]veryone has the right to respect for his private and family life, his home and his correspondence”. being a qualified right, however, art 8(2) states that any interference may be justified if it can be proven to be in “accordance with law and necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder of crime, for the protection of health and morals or for the protection of the rights and freedoms of others”. these are the parameters in which we are to operate. 93 such as time-limit and exhaustion of domestic remedies. 94 particularly hra 1998 s 2 (1) a court or tribunal determining a question which has arisen in connection with a convention right must take into account any – (a) judgment, decision, declaration or advisory opinion of the european court of human rights, (b) opinion of the commission given in a report adopted under article 31 of the convention and s 3 (1) “so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the convention rights” and s 6 “it is unlawful for a public authority to act in a way which is incompatible with a convention right”. the denning law journal 21 c) art 8 (1) the interpretation and application of art 8 in possession proceedings have unquestionably experienced a roller-coaster ride both within the uk courts and viz-á-viz the echr. it is important to demarcate between possession proceedings brought by public bodies contra private actors. starting with the house of lords decision in qazi,95 where although the house (excluding lord scott) held that legally performed possession proceedings brought by public authorities engaged art 8 (1), there were differences as to whether ‘contractual and proprietary rights’ could be defeated by an art 8(2) defence. the majority96 held that it, unequivocally, could not. as soon as the possession proceeding was in accordance with law, there was nothing more to investigate in terms of proportionality or justification.97 this approach clearly deviates not only from previous domestic case-law,98 but, significantly, also from echr jurisprudence,99 which lords bingham and steyn illuminated in their dissenting opinions.100 contrary to the majority view, lords bingham and steyn favoured laws lj reasoning in sheffield city council v smart101 that possession proceedings amounts to a prima facie interference with the right to respect for one’s home and therefore requires the court to consider whether the interference was proportionate and legitimate as per art 8 (2). according to laws lj: “'home' is an autonomous concept for the purpose of echr, and does not depend on any legal status as owner . . . since the effect of the possession orders would be to throw them out, i think it inescapable that those orders amounted to an interference with the appellants' right 95 london borough of harrow v qazi [2003] ukhl 43. 96 lords hope, scott and millett. 97 qazi, above n 95, at para [103], per lord millett. 98 see uk case-law r (mclellan) v bracknell forest borough council; reigate & banstead borough council v benfield [2001] ewca civ 1510, [2002] qb 1129; poplar housing & regeneration community association ltd v donoghue [2001] ewca civ 595, [2002] qb 48; sheffield city council v smart; central sunderland housing company ltd v wilson [2002] ewca civ 04, [2002] hlr 639. 99 see echr case-law di palma v united kingdom [1986] 10 ehrr 149; ure v united kingdom (november 27th 1996, application no 28027/95); marzari v italy [1999] 28 ehrr cd 175. 100 see qazi, above n 95, lord bingham paras [12]-[25] and lord steyn paras [26][33]. 101 above n 98. defend my castle: is the uk in violation of article 8 of the european convention of human rights? 22 of respect of their homes. i have said that the case is all about article 8; more precisely, it is all about article 8(2).”102 in justifying his contention, laws lj continued: “it concerns the relationship between the two paragraphs of article 8 . . . the court has to arrive at a judicial choice between two possibilities, a choice which transcends the business of finding out what the legislation's words mean. the first choice . . . would entail a judgment that the convention requirement was met at the article 8(1) stage: on balance, taking into account all the factors . . . there was no want of respect for the appellants' homes. the second choice (accepting a prima facie violation of article 8(1)), which i prefer, entails a judgment that the more rigorous and specific standards set out in article 8(2) have to be met if the court is to hold that the evictions are compatible with the appellants' convention rights. the convention is, as it were, much more remotely engaged in the fabric of our domestic law if the first, rather than the second, choice is taken. part of the court's task is to decide how close that engagement should be in the context in hand. i consider as a matter of substance that the vindication and fulfilment of the convention rights, for which purpose hra was enacted, require that the domestic law procedures involved in these appeals should be subjected to scrutiny for conformity with the article 8(2) standards. such a process is demanded by the fullness of our municipal law of human rights.”103 the majority in qazi rejected laws lj reasoning holding that an unqualified right to possession cannot be put under art 8(2) scrutiny. however, the subsequent echr cases of connors104 and blecic105 undermined the approach to art 8 taken by the majority in qazi while reaffirming its previous jurisprudence. in both connors and blecic, the applicants had no legal defence to their claim under domestic law, as the public bodies had unqualified lawful rights in taking possession; however, the echr engaged in extensive considerations as to art 8 (2) justifications.106 as soon as the echr was satisfied that the property in question constituted a ‘home’ for the purpose of art 8 the, albeit lawful, termination of their tenancy 102 sheffield city council v smart, above n 98, para [26]. 103 ibid, para [27]. 104 connors v united kingdom [2004] 40 ehrr 189. 105 blecic v croatia [2004] 41 ehrr 185. 106 the court devoted fourteen paragraphs of its judgment in connors to this aspect and eleven paragraphs of its judgment in blecic. the denning law journal 23 constituted an interference with their right to respect for their home,107 reminiscing the reasoning employed by laws lj above. this jurisprudential inconsistency between the uk courts and echr reached its moment of truth in the conjoined cases of kay and price.108 while the seven law lords presiding109 concluded that the approach employed in qazi was too wide, the majority maintained,110 in principle, the approach taken in qazi.111 again, lord bingham disagreed with the majority and held that although public bodies need not from the outset establish an art 8 compliant possession order, as it would render the majority of cases ‘burdensome and futile’, it was nevertheless important to allow the possibility for occupiers to raise an art 8 defence, should they so wish. this, lord bingham held, “will be in no way burdensome. in rare and exceptional cases it will not be futile.”112 the house did, however, recognise that there are circumstances, albeit highly exceptional, where lawful possession proceedings might violate art 8.113 the majority, articulated by lord hope, established two ‘gateways’114 through which to challenge a lawful possession proceeding: the first gateway would stand as a qualified art 8 challenge whereas the second as an application for judicial review.115 the law lords distinguished connors as involving “peculiar facts and circumstances”116 as the state held a positive obligation of protecting gypsies, being “members of a vulnerable minority”,117 and therefore, required further consideration.118 however, the subsequent case of mccann119 explicitly stated that connors was not 107 see blecic, above n 105, para [54], connors, above n 104, para [68] . 108 kay v lambeth lbc sub nom price v leeds city council [2006] ukhl 10; [2006] 2 wlr. 570. 109 three of which sat in qazi, lords scott, hope and bingham. 110 lords hope, scott and brown and baroness hale. 111 see lord hope in kay and price, above n 108, para [69] et seq. 112 ibid, para [29]. 113 such as the facts in connors, above n 104. 114 term used by i loveland in “defending ground 8 residential possession claims through article 8 of the european convention on human rights” (2009) 5 conveyancer and property lawyer, at 401. 115 see the two gateways articulated by lord hope, kay and price, above n 108, at para [110]. 116 lord bingham, ibid, para [24]. 117 lord bingham, ibid, para [36]. 118 see lord hope, ibid, para [96], lord scott, para [159]. 119 mccann v united kingdom [2008] 47 ehrr, 40 echr. defend my castle: is the uk in violation of article 8 of the european convention of human rights? 24 “confined only to cases involving the eviction of gypsies”.120 furthermore, the echr reiterated that: “the loss of one's home is a most extreme form of interference with the right to respect for the home. any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under article 8 of the convention, notwithstanding that, under domestic law, his right of occupation has come to an end.”121 post-mccann there is an apparent judicial discomfort in regards to the uk courts’ approach to art 8 proceedings,122 particularly since the approach taken in mccann has been recently reaffirmed by the echr in cosic v croatia.123 in cosic the applicant rented a flat by the local authority school board, who in turn leased it from the central government. when the lease between the school board and central government expired, the central government sought possession. under croatian law, the applicant had no other option than to vacant the flat, hence, possession order was granted. the echr held, however: “…the guarantees of the convention require that the interference with an applicant’s right to respect for her home be not only based on the law but also be proportionate under paragraph 2 of article 8 to the legitimate aim pursued, regard being had to the particular circumstances of the case.”124 the abovementioned issues are dealt with in light of residential occupation where the landlord and/or owner are public bodies. although the uk has not lived up to the standards emanating from echr in regards to art 8, crucially the laws and regulations governing the area of public renting are quite adequate and arguably strike the proportionate balance between 120 ibid, para [50]. 121 ibid, para [50], further reiterated in cosic v croatia (application no 28261/06) january 15, 2009. 122 particularly noticeable in doherty v birmingham city council [2008] ukhl 57, [2008] 3 wlr 636; see also liverpool city council v doran [2009] ewca civ 146; mcglynn v welwyn hatfield dc [2009] ewca civ 285; for analysis see, i loveland “the new latest last word on the relevance of echr article 8 to possession proceedings” (2010) 4 journal of planning and the environment, pp 415-430. 123 above n 121. 124 cosic v croatia, above n 121, para [21]. the denning law journal 25 individual and community interests, as lord bingham alluded to in his kay and price judgment. for our purposes, the abovementioned case-law set the scene; however they do not indispensably determine the outcome, as we are dealing with inadequate law and ineffective regulation governing private actors. what the echr jurisprudence does suggest, however, is the increasing flexibility of the echr in regards to art 8 claims. in effect, possessing one’s home, notwithstanding lawful within the domestic context, is only echr compliant if it is proportionate to the legitimate aim pursued and answers a pressing social need.125 the next sections intend to put this into the private context in the uk by applying the doctrine of positive obligations. b) mortgagor/mortgagee context an art 8 procedure involves a three-stage process: 1) determining whether art 8 (1) is engaged 2) determining whether art 8 (1) is infringed and 3) determining whether the infringement is justified according to art 8 (2). i) is art 8 (1) engaged? importantly, in lopez-ostra, moreno gomez and moldovan it was not the private actors’ actions, per se, that amounted to an infringement of art 8, rather, it was the actors’ action coupled with the state’s failure in its positive obligation to protect rights conferred under art 8. indeed, how can individuals single-handedly violate convention rights of which they are not legally parties to? consequently, in order to trigger the uk’s positive obligation we must first prove that art 8 has the capacity to be engaged by private actors, such as mortgagees. admittedly, a crucial difference between mortgagees and the private actors in lopez-ostra and moreno gomez is the contractual relationship between the mortgagee and mortgagor, rendering state liability arguably unattainable. undeniably, lord bingham held in qazi that nothing in his judgement “should be understood as applying to any landlord or owner which is not a public authority”.126 however, while reiterating this statement in kay and price, he further went on stating that these deliberations are “best left for resolution in a case where it arises”,127 thereby leaving the issue open. in fact, in wood v uk,128 the commission accepted that a mortgage repossession action did engage the individual’s right to respect for home, and 125 see mccann, above n 119, para [49], connors, above n 104, para [81] and blecic, above n 105, paras [58]-[59]. 126 qazi, above n 95, para [23]. 127 kay and price, above n 108, para [28], see also similar statement by lord nicholls at para [61]. 128 [1997] 24 ehrr, cd 69. defend my castle: is the uk in violation of article 8 of the european convention of human rights? 26 attention would therefore turn to whether there was interference and if so, justified under art 8(2).129 accordingly, the commission held in wood that the uk court’s decision to uphold the repossession: “was in accordance with the terms of the loan and the domestic law and was necessary for the protection of the rights and freedoms of others, namely the lender . . . the commission considers that this deprivation [repossession] is in the public interest . . .”130 wood never reached the echr as the commission held the application ‘manifestly ill-founded’;131 however, notably there were no considerations as to any positive obligation conferred upon the state as this was never raised by the applicant. the route employed in wood suggests that although repossessions by mortgagees do engage art 8, the state’s courts and other public body’s endorsement of such repossession have the capacity to interfere with art 8 and attentions should therefore turn to art 8(2). poplar132 concerned a possession order issued against an assured shorthold tenant. the landlord, in this case a public body, could not obtain possession without a court order, as stipulated under the housing act 1988. however, the court was obliged to issue an order if the tenancy was subject to s 21(4) of the housing act and proper notice had been served. these conditions were duly met and focus thus shifted to art 8 (and 6) of the echr. although the court held that art 8 was engaged and interfered with, the interference was justified under art 8 (2). this case was later cited in mclellan and banstead133 which concerned similar issues. in reference to poplar, waller lj stated: “even if it had been a private landlord seeking to evict a tenant under an assured shorthold tenancy, the court as a public authority would have had to approach section 21(4) of the housing act 1988 . . . in much the same way. it would have concluded that section 21(4) did not infringe any article 8 right but not because article 8 did not apply at all, but because the eviction was in accordance with the law . . .”134 (emphasis added) 129 see also lambeth lbc v howard [2001] 33 hlr 58; [2001] ewca civ 468. 130 wood, above n 128, para [1]. 131 ibid. 132 poplar housing & regeneration community association ltd v donoghue, above n 98. 133 r (mclellan) v bracknell forest borough council; reigate & banstead borough council v benfield, above n 98. 134 ibid, para [42]. the denning law journal 27 incidentally, lord hope considered his judgement in kay and price to apply equally to public and private actors.135 thus, there are substantial grounds for arguing that a private mortgagee’s repossession of a mortgagor’s home engages art 8 (1). alternatively, art 8 is potentially engaged in repossession proceedings in a mortgagee/mortgagor context, as the court handling the proceedings would have had to approach the common law principle of an inherent right to possession, s 101 lpa 1925 and s 36 aja 1970, which conjunctively determine the mortgagor’s security of tenure. this is correct since the courts, as public bodies, are, by virtue of s 6 hra 1998, bound in their practice and procedures to be compatible with the echr. indeed, as sedley lj held in howard,136 "a legal threat to a secure home will, in the ordinary way, engage article 8(1).”137 ii) is art 8 (1) infringed? this is where we find a significant hurdle to overcome. i contend that the mortgagor has potentially suffered an infringement of his art 8 rights due to the inadequacy of governing law and ineffective regulation which conjunctively precipitate home repossessions. echr case-law confirms that the court is not afraid of holding states accountable when failing to adequately regulate private actor’s behaviour.138 as academically recognised and empirically self-evident in the current economic crisis, the regulatory framework in place is inadequate and, as whitehouse writes, lacks ‘bite’.139 without legal backing, it may even be argued to lack substance. in moreno gomez, the echr held: “regulations to protect guaranteed rights serve little purpose if they are not duly enforced and the court must reiterate that the convention is intended to protect effective rights, not illusory ones. the facts show that the applicant suffered a serious infringement of her right to respect for her home as a result of the authorities' failure to take action to deal with the night-time disturbances.”140 135 kay and price, above n 108, paras [64] and [75]. 136 lambeth lbc v howard, above n 129. 137 ibid, para [32]. 138 see eg fadayeva v russia [2005] 45 ehrr 10 and moreno gomez, above n 64. 139 l whitehouse, above n 36, at 814, quoting the law society “home-owners unprotected by weak mortgage protocol, warns law society” (law society, press release, 2 december 2008). 140 moreno gomez, above n 64, para [61]. defend my castle: is the uk in violation of article 8 of the european convention of human rights? 28 is the failure to regulate pollution or noise from private actors a great leap away from the failure to regulate lending practices? indeed, in the first cases, the applicants were at least able to keep living in their homes, while the latter result in the loss of home. as accentuated, the spirit of the convention was to protect effective rights, not illusory ones. the obstacle we face is where the uk might be de jure compatible with its echr obligations; however, is de facto incompatible as the uk’s laws and regulation governing the mortgage relationship renders art 8 rights illusory. this is not because the laws and regulation actively interfere, rather, because they are inadequate or nonexistent. as such, the echr jurisprudence, particularly as applied in the uk, in itself contradicts the spirit of the echr. more must be done. this text’s submissions are as follows: a mortgagee’s right to possession, instigated by inadequate regulation, facilitated by law, and upheld disproportionately by the court, interferes with a mortgagor’s art 8 rights and requires justification under art 8 (2). iii) justified under art 8(2) whether the question of justification under art 8(2) is framed in light of a ‘positive duty’ on the state, ie its failure to protect mortgagors, or in terms of ‘interference by a public authority’, the echr has held that the applicable principles are roughly the same.141 in both contexts, a balance has to be struck between the competing interests of the individual and of the community as a whole. being a socio-economic right, the state generally enjoys a wide margin of appreciation as they are in the best position to know the boundaries of their capabilities and the needs of their society.142 in a mortgagor/mortgagee context, the ‘economic well-being of the country’ and the ‘protection of rights and freedoms of others’ would be the natural justifications for the state’s actions, or in our case inaction. the state would invariably argue that it is within their domain to determine the appropriate measures to advance and secure the economic well-being of the country and to protect the contractual rights of the mortgagees. loveland notes that whereas previously, most notably articulated in court of appeal cases143 and in buckley,144 the state enjoys “broad, macro-level discretion in matters of housing policy”,145 however, “connors and mccann have redefined possession cases as being concerned primarily with the micro-level 141 lopez-ostra, above n 63, para [51], moldovan, above n 65, para [97]. 142 james and others v uk [1986] 8 ehrr 123. 143 such as poplar, above n 98, mclellan, above n 98, and central sunderland housing co ltd v janet wilson [2002] ewca civ 4; [2002] hlr 639. 144 buckley v united kingdom [1997] 23 ehrr 101. 145 i loveland, above n 114, at 404. the denning law journal 29 interests of the resident and not with the political autonomy of a legislature”.146 as the echr held in connors, art 8 concerns with: “rights of central importance to the individual’s identity, selfdetermination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community. where general scope and economic policy considerations have arisen in the context of art 8 itself, the scope of the margin of appreciation depends on the context of the case, with particular significance attaching to the extent the intrusion into the personal sphere of the applicant.”147 this allows for greater scrutiny within art 8 (2). what is important to note is that in line with the submissions herein, the contractual relationship between the mortgagee and mortgagor, per se, does not render the uk immune from potential breach of art 8. as part i demonstrated, the uk has pushed the citizen towards mortgage finance take-up, a market that imposes standardised contract terms. what is more, the law has subsequently provided disproportionate protection towards the economic interests of the mortgagee, again adversely affecting the mortgagor’s art 8 rights. significantly, the balancing exercise is not conducted between the rights of the mortgagee as against mortgagor, rather law and regulation that determine that contractual relationship against the individual’s home interest. thus, in light of the doctrine of positive obligations, the question we must ask is: has the uk awarded sufficient legal and regulatory protection to the mortgagor’s home? in line with the conventional proportionality principle employed by the echr, we might rephrase this question as: are the deregulatory measures of the uk and the extensive legal protection of mortgagees necessary to protect the mortgagees’ contractual right and secure the economic well-being of the country? this requires the court to engage in a balancing exercise where they are to take the interests of the home-owner and weigh those against the interests of the mortgagee and the economic well-being of the uk. to effectively conduct this balancing exercise, however, there must be an understanding of the interests in play. note that we are not engaging in a proprietary interest, generally protected under art 1 of protocol 1,148 rather the interest of ‘home’, which is not dependent upon a classification under domestic law.149 fox cogently argues in conceptualising home150 that there 146 ibid. 147 connors, above n 104, para [82]. 148 of the echr. 149 buckley v united kingdom, above n 144, para [63]. defend my castle: is the uk in violation of article 8 of the european convention of human rights? 30 has been and still is a disregard and regrettable incomprehension of the concept of home in legal discourse, which has “facilitated the subjugation of occupier’s interests”.151 undeniably, the definition of ‘home’ is intricate and subjective. as lawrence puts it, home is “a relative concept, not an absolute one . . . given that it transcends quantitative, measurable dimensions and includes qualitative subjective ones, it is a complex, ambiguous concept that generates confusion”.152 contrarily, the courts generally grasp the mortgagee’s interest as it is readily intelligible and quantifiable. nonetheless, as fox submits, the courts must come to terms with the definition of home to safeguard equitable and effective legal discourse, anything else is inexcusable. because one’s home is associated with much more than its financial and structural attributes, comprising also of “multi-emotional, psychological and cultural matters”,153 it leaves greater scope for the applicability of art 8. illustratively, in gillow v uk,154 the court held that to respect the right to home was also “pertinent to their personal security and well-being”.155 though the majority in qazi discredited ‘home’ to have any special meaning in law, lord bingham asserted that “few things are more central to the enjoyment of human life than having somewhere to live”.156 incidentally, the fact that home bears a greater meaning than an occupational interest is governmentally recognised. this can be seen, for instance, in compulsory purchase orders where local authorities are required to make a ‘home loss’ payment, in addition to the property value, to reflect the “emotional upset, discomfort and inconvenience” of losing one’s home.157 with a proper definition of ‘home’, charged with legal potency and tenacity, it may firmly stand against potential threats. it may also inadvertently aggrandise the enforceability of art 8. while there are 150 l fox conceptualising home: theories, laws and policies (oxford: hart pub, 2007). 151 ibid, p 483. 152 r lawrence “deciphering home: an integrative historical perspective” in dn benjamin the home: words, interpretations, meanings and environments, (aldershot, ashgate, 1995) p 58. 153 l fox, above n 150, p 24. 154 [1986] echr 14. 155 ibid, para [55]; see also jd porteous “domicide; the destruction of home” in dn benjamin the home: words, interpretations, meanings and environments, above n 114, and m fried “grieving for a lost home” in j duhl the urban condition – people and policy in metropolis (new york, basic books, 1963). 156 qazi, above n 95, para [8]. 157 illuminated in l fox conceptualising home, above n 150, p 8; see governmental white paper development and compensation – putting people first (cmnd 5124), (london, hsmo, 1972). the denning law journal 31 mortgagors who have lost their homes due to faults of their own; there are also those who are victims of unfortunate and unpredicted circumstances and in the direct hands of a failing financial market. having actively encouraged home-ownership and enabled unscrupulous lending practices, where lies the state’s responsibility for the consequences of its policies? going back to the proportionality principle and scrutinising whether the degree of mortgage deregulation and protection awarded to secured lenders are necessary, its support may not be as strong in our contemporary housing market. the cml continuously emphasise that any attempts to curtail the rights granted to lenders “would have severe consequences for the lending industry and therefore the borrower and for the economy as a whole”.158 indeed, this response was one of the reasons why the draft pre-action protocol failed, leaving the revised protocol toothless. however, the cml’s contention is not necessarily true and in any event should not be taken for granted. while arguing for a fairer balance between mortgagors and mortgagees in repossession proceedings, smith informs us that as mortgagees in the twenty-first century “appear to be more enthusiastic when it comes to lending money . . . than ever before”,159 the anticipated fear of restrained mortgage availability due to regulatory and legal measures may not be as acute as previously contended. in regards to inadequate legal protection, is the disproportionate level of protection afforded to mortgagees under s 36 aja 1979 necessary to safeguard the mortgagees’ contractual rights? as illustrated above, balancing the contractual interests fairly by reformulating the right to repossession to a remedy, attainable upon court order, would still effectively protect the mortgagees’ interest if need be, but crucially also properly reflect the interest of one’s home. as noted, this has not only been proposed extensively by academics, it has found support by the law commission and judiciary alike.160 furthermore, the uk courts have now conceded to the fact that in the sphere of public renting, lawful possession proceedings are capable of being 158 council of mortgage lenders mortgage remedies (possession and sale) review response by the council of mortgage lenders to the ministry of justice’s initial review (14 january 2009). 159 s smith banking and housing: speculating the role and relevance of housing wealth in britain, paper prepared for the joseph rowntree foundation inquiry into home ownership 2010 and beyond, 2005, p 4. 160 see law commission’s working paper land mortgages, (number 99, 1986, paragraph 3.69) which got published in its report transfer of land land mortgages, (1991) law com no 204; see also, for instance, clarke lj comments in ropaigealach, above n 30, at 283. defend my castle: is the uk in violation of article 8 of the european convention of human rights? 32 challenged where ‘exceptional circumstances’ exist,161 questioning why similar considerations should not be extended to mortgagors. appropriate action in moreno gomez, the applicant had suffered a serious infringement of her art 8 rights as the state had failed in its positive obligation to effectively regulate private actors’ actions. this text has argued that repossessed mortgagors has potentially suffered an infringement of their art 8 rights as the uk has failed in its positive obligation to provide adequate legal protection and an effective regulatory framework. by holding the uk accountable under art 8 the echr might demand a remedy for the applicant in the instant case. indicatively, in moreno gomez the applicant was awarded 3 005 euro in nonpecuniary damages, 4 000 000 ptas (appr. 24 000 euro) in lopez-ostra, and 14 000 euro in connors. certainly, mortgagors cannot be allowed to remain in their homes if they cannot afford it as it would severely undermine the contractual rights of mortgagees and the economy. what must be done here is to hinder these instances arising from the first place, ie the uk must take a proactive approach to protect the homes of its citizens. in order to respect, protect and fulfil the mortgagors art 8 rights effectively, not illusively, the uk must establish a legal framework that strikes the right balance between the mortgagees’ and mortgagors’ interests, going beyond the mere financial test under s 36 aja 1970, and instigate a regulatory framework that effectively rein in miscreant lenders and ensures that a home is not lost unnecessarily. by tightening lending regulation and providing it with legal backing, we can minimise the risks involved when lending to financially incapable individuals. further, transforming the right to possession to a remedy, obtained through court order, would force the mortgagee to be wary of its lending practices. however, this does not suffice. the uk must take full responsibility for the effect of its housing policy. as we have seen, its encouragement of homeownership has, due to residualisation, rendered few alternatives to satisfy the ‘deep-rooted desire’ for ‘home’. if the uk will, as this text demands, tighten lending practices it will naturally lead to inaccessibility of home-ownership for a section of the society who do not live up to the minimum lending criteria. this group of people must be provided rented accommodation which can readily satisfy the requirements of ‘home’, such as security, comfort and pride. therefore, what the uk should to do is scrap their encouragement of home-ownership and replace it with a home-security policy. rather than 161 see lord bingham in kay and price, above n 108, para [35], reiterating lord millet in qazi, above n 95, para [100]. the denning law journal 33 aiming towards home-ownership, the home-security policy would aim towards sustainable home tenure, regardless of its origin. governments during the 20th century might have been right in claiming that home-ownership is a deep-rooted desire ingrained in the hearts of uk citizens. what the government is ultimately responsible for, however, is the formation of policies that correspond with the realities of contemporary politics, economics and culture. denying home-ownership to financially incapable individuals is not being hard or arbitrary; it is being fair, true and prudent. conclusion the mortgage relationship is comprised of mutual benefits. the mortgagee provides the means by which individuals realise their desire of becoming home-owners and enables a release of capital fixed in the property. the mortgagor assures a steady flow of income for the mortgagee, where the end capital paid surmounts that of the loan made, thereby creating a profit. it is a clever relationship, indeed. regretfully, this relationship has been tainted by the failure of the state to prevent unscrupulous lenders exploiting the vulnerability of some aspiring home-owners. the creation of the echr was born out of a quest to safeguard human dignity against potential threats. this text has illuminated that one of those threats has been the uk’s failure to protect mortgagors’ homes. with the aim of becoming a ‘property owning democracy’, successive governments have financially encouraged the acquisition of mortgage finance, however, failed to implement corresponding legal protection and effective regulatory framework to curtail unscrupulous mortgagees, leading to deprivation of homes. to hold the uk responsible for this failure, this text has turned to echr jurisprudence relating to the doctrine of positive obligations. we have seen through cases such as lopez-ostra, moreno gomez and moldovan that the echr has not only recognised the existence of a positive obligation under art 8, but also that such an obligation may arise to regulate the behaviour between private actors. we have also seen through cases such as connors, mccann and cosic an increasing determination on the part of echr to reinforce rights emanating from art 8 by subjecting domestically lawful possession proceedings undertaken by public authorities to art 8 (2) scrutiny. building on these two developments, this text has argued that the conjunctive factors of state encouragement of home-ownership, financial deregulation, inadequate legal protection and an ineffective regulatory framework have precipitated home repossessions to the extent that the uk may be in violation of its positive obligations under art 8. this is particularly attainable if the concept of ‘home’ gets upgraded to its true colours in order to counteract its principal defend my castle: is the uk in violation of article 8 of the european convention of human rights? 34 opponents under art 8 (2); that is, the state’s margin of appreciation in respecting the contractual rights of the mortgagee and protecting the economy as a whole. undeniably, the assertions in this text are quite polemical and at times possibly unrealistic. however, the questions asked and the thoughts provoked are necessary in our society today. as the state has perniciously retreated, private actors have stepped in and filled the vacuum. the one court that stands up for the individual must start asking the same questions as this text. understandably, given the intrusiveness upon state sovereignty that my proposed route entails and the conceptual difficulties involved, an applicant will find it hard to successfully argue their case. nonetheless, importantly, scott and macklam suggest, as long as the court holds the case admissible and scrutinises the issues raised, it might be all that is needed to provoke action.162 this is called ‘soft enforcement’ which is particularly pertinent in relation to socio-economic rights where the court will find it difficult to demand positive measures. as the canadian case of askov163 demonstrates, constructively criticising the issues at hand but stopping short of demanding positive measures can have huge political impact.164 another prime example of this is the indian case of olga tellis165 which is famous for shedding light on india’s housing problem and illustrates how judicial activism triggers political action. in 2008, 40 000 homes were repossessed in the uk, 46 000 in 2009 and by the end of 2010 an additional estimated 53 000 homes will get repossessed.166 something must be done. in the midst of financial deregulation, competitiveness, specialisation, innovation, and growth, the uk lost its way and forgot who, under the social contract, it ultimately answers to. let us hope the uk will come to remember its promised responsibility to protect its people. 162 c scott and p macklam, above n 75. 163 [1990] 2 scr 1199, 1203-1207, 1247 (can), see esp. paras [1241]-[1243]. 164 see also td v minister for education [2001] 4 ir 259, ir. sc. 165 olga tellis v bombay municipal corp [1986] air 1. 166 see repossession statistics from council of mortgage lenders, available at http://www.cml.org.uk/cml/media/press/2541. http://www.cml.org.uk/cml/media/press/2541 abstract introduction uk housing policy a) right to buy b) residualisation c) financial deregulation d) retreat e) summing up when the ink is dry regulation – regulate! a) the pre-action protocol b) summing up positive obligations under the echr a) respect, protect and fulfil b) enforceability of socio-economic rights in the name of art 8, defend my castle c) art 8 (1) b) mortgagor/mortgagee context i) is art 8 (1) engaged? ii) is art 8 (1) infringed? iii) justified under art 8(2) appropriate action conclusion two kinds of justice: human and devine the denning law journal 55 the denning law journal vol 20 2008 pp 55-86 the protection of witnesses in bosnian war crimes trials: a fair balance between the interests of victims and the rights of the accused? huma haider and timothy welch* introduction in early war crimes trials such as in nuremburg, documentary evidence was decisive in convicting the defendants. witness evidence was of lesser importance.1 by contrast, in bosnian war crimes trials the testimony of witnesses is essential, forming much of the evidential weight upon which the courts decisions are based. if witnesses are not found or if they are unwilling or unable to give evidence in court, trials are unlikely to proceed. witnesses in war crimes trials are often at the same time victims of the most horrific acts of brutality. they are fearful and traumatised and are often reluctant to come to court and tell their story in public and in front of the accused. specific measures to protect and support witnesses and victims are employed to enable witnesses to give evidence in court. they are designed to ensure their safety and to make the experience of testifying as minimally traumatic as possible. however, witness protection can conflict with the rights of the defendant to a fair trial. the right to a fair trial includes the right of an accused to test his accuser through cross-examination in a public hearing. where witnesses are granted anonymity or the public is removed to protect the witnesses, or documentary hearsay evidence is accepted in place of oral evidence from a witness, a fair trial can be compromised. this article will focus on the use of protective measures in bosnian war crimes trials at both the domestic war crimes chamber (wcc) in sarajevo and at the international criminal tribunal for the former yugoslavia (icty) at the hague the analysis will focus predominantly on the use of witness anonymity and the exclusion of the public from the trial chamber. both * huma haider (llb, llm, mba) and timothy welch (llb, llm) worked in the prosecution support section of the war crimes chamber, court of bosnia and herzegovina in 2007. huma is now a research fellow at the governance and social development resource centre, university of birmingham and timothy has recently undertaken the bar vocational course at the inns of court school of law, london. 1 joanna pozen, justice obscured: the non-disclosure of witnesses identities in ictr trials. see www.law.nyu.edu/ journals/jilp/issues/38/38_1_2_pozen.pdf the protection of witnesses in bosnian war crimes trials 56 measures have been widely used in the bosnian trials, rendering the fairness of the proceedings controversial. in both courts, protective measures are provided for by law, just as due process and the rights of the defence are also fundamental requirements. since the start of the bosnian war crimes proceedings, both courts have struggled to strike a fair and appropriate balance between the interests of victims and the rights of the accused. arguments justifying the use of restrictive measures to protect victims and witnesses often follow a common theme: war crimes trials are unique, taking place in exceptional circumstances. as such, departure from ordinary standards of due process is necessary. this article will look closely at the approach the courts have taken in balancing the interests of victims and the rights of the accused. additionally it will examine whether anonymity and the removal of the public is consistent with the fundamental right of fair trial under the european convention on human rights. finally, the contention that war crimes trials in general take on a broader purpose than ordinary domestic criminal proceedings will be addressed by looking at the various aims which war crimes trials are said to have. essential background war broke out in bosnia and herzegovina (bih) in the early 1990’s following declarations of independence from slovenia and croatia and the subsequent break-up of yugoslavia. in march 1992, bosnia had its own referendum for independence. bosnia has three main ethnic groups: bosniaks (bosnian muslims), croats and serbs. croats and muslims both participated in the referendum, whilst the majority of the serbian population boycotted the vote. in april 1992 the united nations and the european union officially recognised bosnia as an independent state. fighting broke out soon after. the conflict was long, widespread and brutal and fought along ethnic lines. the scale and ferocity of the violence was something not seen in europe since the second world war. the siege of sarajevo, bosnia’s capital, lasted for about four years, arguably making it the longest siege in modern military history.2 the mass killing of muslim men and boys in srebrenica was the 2 c s king, the siege of sarajevo, 1992-1995 (part of urban operations: an historical casebook available at: http://www.globalsecurity.org/military/library/report/2002/urbanoperationsintro.htm. see also study of the battle and siege of sarajevo: final report of the united nations commission of experts established pursuant to security council resolution 780 (1992), s/1994/674/add 2 (vol ii) 27 may 1994. http://www.globalsecurity.org/military/library/report/2002/moutking.htm http://www.globalsecurity.org/military/library/report/2002/urbanoperationsintro.htm the denning law journal 57 worst massacre and only genocide in europe since 1945.3 the conflict affected almost the entire population in every part of the country. it is estimated that between 150,000 and 250,000 people lost their lives.4 the conflict also saw the displacement of an estimated 2.2 million people. this was not a byproduct of war, but its very purpose.5 it was part of the policy of “ethnic cleansing,” the term used to describe “the elimination by the dominant ethnic group of a given territory of members of other ethnic groups within that territory.” this was achieved in bosnia through a variety of methods, including harassment, beatings, torture, rape, summary executions, forced relocation, confiscation of property and destruction of homes and places of worship and cultural institutions.6 ultimately, “ninety percent of the pre-war bosnian-serb population left the area now called the federation and over ninety-five percent of the pre-war bosnian-croat and muslim inhabitants fled what would become the republika srpksa.”7 the war ended in 1995 with the signing of the general framework agreement for peace in bih, commonly known as the dayton peace agreement.8 following dayton, bosnia was and continues to be today an independent state, but under international administration. however bosnia is not the same country it was before the outbreak of war. the war has left the bosnian people with widespread fear and mistrust of one another. against this background, there was a clear need for a process of truthtelling, rebuilding trust and reconciliation. this would take many forms. it included a push to bring to justice those who had perpetrated the many horrific crimes that took place during the conflict. 3 j w honig and n both srebrenica: record of a war crime (harmondsworth: penguin books, 1997). 4 organisation for security and co-operation in europe (osce), war crimes trials before the domestic courts of bosnia and herzegovina: progress and obstacles (march 2005) p 3. bosnia currently has a population of approximately 3.8 million. source: united nations statistics division: population and vital statistics report. series a vol lix no 2 1 july 2007 (http://unstats.un.org/unsd/demographic/products/vitstats/sets/seriesa_july2007_co mplete.pdf). 5 c dahlman and g o tuathail “the legacy of ethnic cleansing: the international community and the returns process in post-dayton bosnia-herzegovina” (2005) 24 political geography 569 at 573. 6 un department of public information the un and the situation in the former yugoslavia (1995) at 65-66, in e rosand “the right to return under international law following mass dislocation: the bosnia precedent?” (1997-1998) 19 mich j int’l l 1091 at 1098. 7 ibid n 6 at 1100. 8 signed in dayton, ohio on 14 december 1995. the protection of witnesses in bosnian war crimes trials 58 this was a process that in fact began even before the end of the war. on 25 may 1993, the united nations security council unanimously adopted resolution 827,9 establishing the international criminal tribunal for the former yugoslavia. the icty was given jurisdiction to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former yugoslavia since 1 january 1991.10 the tribunal was given primacy over the jurisdiction of domestic courts to prosecute such offences11 and the courts in bosnia were obligated to provide unrestricted access to and cooperate with the tribunal.12 the icty however, faced many difficulties in its early years and got off to a slow start. the first trial13 did not commence until may 1996; a guilty verdict was returned on 7 may 1997.14 the tribunal was initially constrained in its ability to investigate crimes because it started operating (i) whilst the war was still ongoing and intensifying (ii) with limited resources and (iii) without a police force and a witness protection program.15 the icty has since made good progress.16 as of 12 february 2008, the tribunal had concluded 111 cases out of a total of 161 indicted accused.17 as trials progressed at the hague, and as more time elapsed since the end of the war, there was a push to conduct trials in bosnia as well. as remarked by human rights watch, “fair and effective trials of the remaining perpetrators at the domestic level are necessary to further combat impunity in the former 9 adopted under chapter vii of the un charter. available at http://www.un.org/icty/legaldoc-e/basic/statut/s-res-827_93.htm. 10 ibid at para 2. 11 icty statute article 9 (2). 12 article ii (8) general framework agreement for peace in bih provides that; “all competent authorities in bosnia and herzegovina shall cooperate with and provide unrestricted access to: any international human rights monitoring mechanisms established for bosnia and herzegovina; the supervisory bodies established by any of the international agreements listed in annex i to this constitution; the international tribunal for the former yugoslavia (and in particular shall comply with orders issued pursuant to article 29 of the statute of the tribunal); and any other organization authorized by the united nations security council with a mandate concerning human rights or humanitarian law.” 13 dusko tadić prosecutor v tadić, no it-94-1-t. 14 opinion and judgment”, prosecutor v dusko tadić, case no: it-94-1-t, t ch ii, 7 may 1997. 15 prosecutor v tadić, decision on prosecution motion for protective measures for witnesses, it-94-1-t, 10 august 1995 at paragraph 27. 16 see human rights watch, real progress in the hague, 29 march 2005 available at http://www.hrw.org/english/docs/2005/03/29/serbia10386.htm 17 icty website: http://www.un.org/icty/glance-e/index.htm http://www.un.org/icty/legaldoc-e/basic/statut/s-res-827_93.htm https://exchange.buckingham.ac.uk/exchange/susan.edwards/inbox/bosnia%20piece.eml/1_multipart_xf8ff_2_bosnia%20denning%20article%202008.doc/local%20settings/temporary%20internet%20files/content.ie5/01m3s52n/website the denning law journal 59 yugoslavia and build respect for the rule of law.”18 the new war crimes chamber of bosnia and herzegovina, situated in the bosnian state court in sarajevo, was formally established in january 2005.19 the court has jurisdiction to try war crimes cases involving intermediary and lower-level accused20 transferred from the icty,21 and also holds territorial jurisdiction.22 the underlying principle of the wcc is that “accountability for the gross violations of human rights that took place during the conflict is of concern to all humanity but ultimately remains the responsibility of the people of bosnia and herzegovina themselves.”23 the court has a fully functioning witness protection support unit, offering witness support before, during and after hearings.24 the court also operates under measures designed to ensure that defendants receive a fair trial. the defendant’s rights and standards of due process are enshrined in the echr,25 which has been adopted in the bosnian constitution.26 18 human rights watch, narrowing the impunity gap: trials before bosnia’s war crimes chamber (feb 2007); p 1; see also section iv. witness protection and support. 19 war crimes chamber project: project implementation plan registry progress report available at http://www.ohr.int/ohr-dept/rule-of-law-pillar/pdf/wcc-projectplan-201004-eng.pdf 20 security council briefed on establishment of war crimes chamber within state court of bosnia and herzegovina. un press release sc/7888 october 8 2003 available at http://www.un.org/news/press/docs/2003/sc7888.doc.htm 21 these will include cases under rule 11 bis icty rules of procedure and evidence which provides for the transfer of cases where an indictment has been confirmed. additionally cases can be transferred by the office of the prosecutor at the icty where an indictment has not yet been confirmed. 22 chapter iv bosnia & herzegovina criminal procedure code. for an in depth discussion of the territorial jurisdiction of the bosnian state court, which has been controversial, see osce report: war crimes trials before the domestic courts of bosnia and herzegovina: progress and obstacles. march 2005. 23 human rights watch, above n 18. 24 human rights watch, looking for justice: the war crimes chamber in bosnia and herzegovina (feb 2006). see section v witness protection and support. 25 article ii of the constitution of bosnian & herzegovina provides that: ‘the rights and freedoms set forth in the european convention for the protection of human rights and fundamental freedoms and its protocols shall apply directly in bosnia and herzegovina. these shall have priority over all other law. bosnia signed the echr on 24/04/2002; it was ratified on 12/07/2002 with immediate effect. see http://conventions.coe.int/treaty/commun/cherchesig.asp?nt=005&cm=3&df=2/ 19/2008&cl=eng. 26 the general framework agreement for peace in bosnia and herzegovina was signed on december 14, 1995, annex 4, the constitution of bosnia and herzegovina, art. ii(3)(e), http://www.ohr.int/dpa/default.asp?content_id=379 http://conventions.coe.int/treaty/commun/cherchesig.asp?nt=005&cm=3&df=2/19/2008&cl=eng http://conventions.coe.int/treaty/commun/cherchesig.asp?nt=005&cm=3&df=2/19/2008&cl=eng the protection of witnesses in bosnian war crimes trials 60 the use of protective measures and the balance of competing interests taken by the courts “in war crimes trials, as with any criminal case, the reliable and comprehensive testimony of witnesses is essential to a fair and effective procedure.”27 the question is are war crimes trials akin to just ‘any criminal case’? should victims and witnesses in such situations of conflict with extreme and widespread violations of human rights be afforded greater protections, even if potentially at the expense of the rights of the accused? or do such cases have a broader purpose for post-conflict societies and the international community that they must be held to strict standards of fair trial and rights of the accused? at the same time there is a considerable body of opinion which holds the view that the reliability of witness testimony can only be properly tested under cross examination.28 however, for witnesses’ testimony to be ‘comprehensive’, witnesses need also to be willing and able to come forward and testify in safety and without fear.29 this debate concerning the rights of the accused and the rights of the victims and witnesses has played out in trials concerning the war in bosnia and herzegovina at the icty and more recently at the wcc of the bosnian state court. (i) anonymity article 21 of the statute of the icty, on the “rights of the accused” was adopted almost verbatim from article 14 of the international covenant on 27 osce, above n 4 at 23. 28 see colin t mclaughlin “victim and witness measures of the international criminal court: a comparative analysis” (2007) 6 the law and practice of international courts and tribunals 189 at 207; monroe leigh “witness anonymity is inconsistent with due process” (1997) 91 the american journal of international law 80 at 80-81; human rights watch, above n 18 at 31; pozen, above n 1 at 291; vincent m creta “the search for justice in the former yugoslavia and beyond: analyzing the rights of the accused under the statute and the rules of evidence of the international criminal tribunal for the former yugoslavia” (1997-1998) 20 hous j int’l l 381 at 400. 29 see christine m chinkin, “due process and witness anonymity” (1997) 91 the american journal of international law 75 at 76; alex c lakatos “evaluating the rules of procedure and evidence for the international tribunal in the former yugoslavia: balancing witnesses’ needs against defendants’ rights” (1994-1995) 46 hastings lj 909 at 920-921; jonathan doak “the victim and the criminal process: an analysis of recent trends in regional and international tribunals” (2003) 23 legal studies 15 at 21. the denning law journal 61 civil and political rights (iccpr). it specifies a number of minimum guarantees to which the accused is entitled, including the right “to examine, or have examined, the witnesses against him.”30 article 21(2) states, “the accused shall be entitled to a fair and public hearing, subject to article 22 of the statute.” article 22 states that the tribunal shall provide for protection of victims and witnesses with measures that “shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the victim’s identity.”31 the statute differs from the iccpr by qualifying the accused’s right. rule 69(a) of the icty rules of procedure and evidence explains further: “in exceptional circumstances, the prosecutor may apply to a judge or trial chamber to order the non-disclosure of the identity of a victim or witness who may be in danger or at risk until such person is brought under the protection of the tribunal.” in prosecutor v tadić, the first case to be tried (whilst the war was ongoing) at the icty – the majority opinion in the protective measures decision stated: “a fair trial means not only fair treatment to the defendant but also to the prosecution and to the witnesses.”32 judge mcdonald argued that by including an “affirmative obligation to protect victims and witnesses” the drafters of the statute recognised the “unique” context of the icty. this context entailed operating during a continuing conflict and without a witness protection programme.33 the prosecution’s main protective measures included anonymity, whereby victims and witnesses would not be identified to the accused or to his lawyers; and confidentiality, whereby victims and witnesses would not be identified to the public and the media.34 the majority granted anonymity to four witnesses and confidentiality to many more.35 in so doing, it emphasised the need to balance interests: “on the one hand, there is some constraint to crossexamination, which can be substantially obviated by the procedural safeguards. on the other hand, the trial chamber has to protect witnesses who are genuinely frightened.”36 the judgment provided five guidelines on how to balance these interests with respect to granting witness anonymity: 30 article 21(4)(e), statute of the international criminal tribunal for the former yugoslavia; see antonio cassese, “the international criminal tribunal for the former yugoslavia and human rights” (1997) 2 european human rights law review 329 at 333. 31 article 22, statute of the icty. 32 tadić, above n 15 at para 55. 33 ibid at paras 26-27. 34 natasha a affolder “tadić, the anonymous witness and the sources of international procedural law” (1997-1998) 19 mich. j int’l l 445 at 452. 35 tadić, above n 15 at paras 84-85 and disposition. 36 ibid, at para 84. the protection of witnesses in bosnian war crimes trials 62 “first and foremost, there must be real fear for the safety of the witness or her or his family … secondly, the testimony of the particular witness must be important to the prosecutor's case … thirdly, the trial chamber must be satisfied that there is no prima facie evidence that the witness is untrustworthy … fourthly, the ineffectiveness or non-existence of a witness protection programme is another point that has been considered in domestic law and has a considerable bearing on any decision to grant anonymity in this case … finally, any measures taken should be strictly necessary.”37 applying these five factors, and considering the ongoing-armed conflict to be an “exceptional circumstance par excellence,” the majority opinion concluded that anonymous testimony is consistent with the icty’s statute and rules of procedure and evidence.38 while agreeing with other majority protective measures granted, judge stephen was strongly opposed to anonymity. he stressed that the qualification in article 21(2) must apply solely to “the public quality of the hearing and not its fairness.”39 in examining article 22, he relied on the secretary-general’s report, which when introducing the article, refers to the need for protection measures “especially in cases of rape and sexual assault.”40 in such cases, judge stephen stated that protection is needed not because witnesses in such cases have a greater fear of retaliation, but because of the potential negative social consequences of it being known in communities that one was raped; combined with retraumatisation from facing one’s attacker in court. he noted that the customary measures for these are in camera proceedings and careful control of cross-examination. as such, he concludes that it is such measures, and “not any wholesale anonymity of witnesses,” that article 22 addresses.41 wholesale anonymity, he asserted, would violate the accused’s right to examine witnesses – and ultimately, the right of the accused to a fair hearing. the accuser, he stressed, “would appear as no more than a disembodied and distorted voice transmitted by electronic means” – yet his or her testimony could be used as evidence to convict the accused on very serious charges.42 37 ibid, at para 62-66. 38 ibid, at para 61 and 57-59. 39 prosecutor v tadić, separate opinion of judge stephen on the prosecutor’s motion requesting protective measures for victims and witnesses (10 august 1995). 40 ibid; see report of the secretary-general pursuant to paragraph 2 of security council resolution 808 (1993) (s/25704) at para 108. 41 ibid judge stephen. 42 ibid; see also affolder, above n 34, at 461. the denning law journal 63 human rights commentators and ngos have also critiqued the use of anonymity.43 they assert that non-disclosure of the identity of accusing witnesses prevents the accused from conducting background searches of the witness; and prevents the accused from properly preparing for and effectively conducting cross-examination.44 further, anonymity precludes the accused from challenging the reliability of the witness’ testimony based on the accused’s personal knowledge of the situation and the person involved; and based on monitoring the witness in court.45 as such, critics consider anonymity to be a violation of the right of the accused to a fair trial. since tadić, the icty has moved in the direction of judge stephen’s dissent – and has not granted any further complete witness anonymity measures. although the trial chamber adopted the five guidelines laid out in tadić in a subsequent case, prosecutor v blaškić, it applied a more restrictive interpretation of them. its approach was more favourable to the accused: “[t]he victims and witnesses merit protection, even from the accused, during the preliminary proceedings and continuing until a reasonable time before the start of the trial itself; from that time forth, however, the right of the accused to an equitable trial must take precedence and require that the veil of anonymity be lifted in his favour, even if the veil must continue to obstruct the view of the public and the media.”46 by distinguishing between the periods before and after the commencement of a trial, the chamber acknowledged the need for the accused to know the identities of witnesses in sufficient time in order to prepare for cross-examination.47 this progression in icty jurisprudence is logical given the development of the tribunal’s witness protection programme, which had been absent at the time of tadić.48 the chamber also found that the “fundamental exceptional circumstance” an ongoing-armed conflict in central bosnia, which could justify the granting of anonymity to one or more witnesses, no longer existed.49 as a result of these findings, the chamber denied the non-disclosure request by the prosecution and ordered the prosecutor to give the defence, unredacted copies of the statements of 43 leigh, above n 28 at 80-81; human rights watch, above n 24 at 31. 44 ibid; see also mclaughlin, above n 28 at 207. 45 mclaughlin, ibid; and doak, above n 29 at 17. 46 prosecutor v blaškić, case; decision on the application of the prosecutor dated 17 october 1996 requesting protective measures for victims and witnesses, case no. it95-14-pt, 5 november 1996, paragraph 24; cited in 3 march 2000 judgment, it-9514-pt, paragraph 50. 47 pozen, above n 1 at 294. 48 ibid. 49 prosecutor v blaškić, above n 46. the protection of witnesses in bosnian war crimes trials 64 witnesses.50 it did, however, order that the defense must not disclose the information publicly51 and granted special protection to some of the witnesses.52 the trial chamber in prosecutor v brđanin and talić also disallowed the prosecution’s redaction of names in all the statements of witnesses. it concluded that: “[t]he prevailing circumstances within the former yugoslavia cannot by themselves amount to exceptional circumstances. this tribunal has always been concerned solely with the former yugoslavia, and rule 69(a) was adopted by the judges against a background of ethnic and political enmities which existed in the former yugoslavia at that time. the tribunal was able to frame its rules to fit the task at hand … [t]o be exceptional, the circumstances must therefore go beyond what has been, since before the tribunal was established.”53 the chamber was not satisfied that there had been any such significant change, which would allow for these anonymity measures. it also emphasised that there can be no blanket anonymity, as this would presume that every witness is “in danger or at risk” (as rule 69(a) describes them), or “vulnerable.”54 the chamber set out three criteria for deciding whether delayed disclosure requests under rule 69(a) should be granted. these criteria were cited with approval in prosecutor v stanišić and simatović; and again in prosecutor v perišić: a)“the likelihood that prosecution witness will be interfered with or intimidated once their identity is made known to the accused and his counsel, but not to the public, b) the distinction which must be drawn between measures to protect individual victims and witnesses in the particular trial, which are 50 prosecutor v blaškić case no it-94-1, decision of trial chamber i on the applications of the prosecutor, 24 june and 30 august 1996 in respect of the protection of witnesses, 2 october 1996. 51 prosecutor v blaškić case no it-94-1, 19 september 1996, 2 october 1996. 52 prosecutor v blaškić case no it-94-1, 5 november 1996, 6 may 1998. 53 prosecutor v brdanin and talić case no: it-99-36, decision on motion by prosecution for protective measures (icty trial chamber 3 july 2000) paragraph 11. 54 ibid at paras 11, 16-17. the chamber rejected the prosecution’s argument that the “exceptional circumstances” was an inherent feature of the post-war landscape, justifying non-disclosure (paragraph 20); see also cristian defrancia “due process in international criminal courts: why procedure matters” (2001) 87 virginia law review 1381 at 1419. the denning law journal 65 permissible under the rules, and measures which simply make it easier for the prosecution to bring cases against other persons in the future, which are not, and c) the length of time before the trial at which the identity of the victims and witnesses must be disclosed to the accused.”55 in perišić, the chamber concluded that the prosecutor must give the defence a reasonable time to properly prepare for cross-examination. it confirmed that this requires full disclosure of the identities and statements of witnesses to be given no later than 30 days before the trial – consistent with the general practice of the chamber.56 the icty has made a marked move in its jurisprudence away from total anonymity from the accused. however, this does not necessarily mean that this remedy is a “dead letter.”57 rather, the prospect of anonymity continues with every war crimes prosecution, given the “unusual dangers” faced by witnesses in such cases and the “limited ability” to protect them.58 in addition, many war crimes prosecutions involve cases of rape and sexual assault – for which special protections of witnesses are imperative. as discussed, the secretary general’s report – cited in tadić, stressed that protection should be granted especially in such cases. the chamber in tadić also noted that rape and sexual assault could have a permanent detrimental impact on the victim.59 as such, decisions on protective measures cannot be based on a continuum focusing on the absence or presence of an armed conflict or on the degree of stability in the former yugoslavia. protections advocated for victims of rape and sexual assault usually centre upon excluding the public;60 however, it is also recognised that victims of sexual violence in particular can be retraumatised through confrontation with the 55 prosecutor v perišić, case no: it-04-81, decision on prosecution motion for protective measures for witnesses (icty trial chamber 27 may 2005) citing prosecutor v stanisic and simatovic, "decision on confidential prosecution motions for protective measures", case no it-03-69-pt, 26 october 2004 citing prosecutor v brdjanin & talic, "decision on motion by prosecution for protective measures", case no it-99-36-pt, 3 july 2000, para 26-38. 56 ibid, perišić. 57 see gregory s gordon “toward an international criminal procedure: due process aspirations and limitations” (2007) columbia journal of transnational law 635 at 695 and defrancia, above n 54 at 1420. 58 ibid, gordon. 59 tadić, above n 15 at para 46. see also doak, above n 29 at 21. 60 it has been noted that testifying about rape and sexual assault is particularly difficult in public, and can result in rejection by the victim’s family and community. see tadić, above n 15 at para 46. the protection of witnesses in bosnian war crimes trials 66 accused in trial. as such, they may refuse to testify unless granted anonymity.61 further, although anonymity has not yet been a key issue in the war crimes chamber of the court of bosnia and herzegovina, there may be greater potential for it to arise at the wcc and at other war crimes trials in the country.62 as will be discussed below, it could be argued that the “unusual dangers” and “limited ability to protect” are more pronounced in war crimes trials in bosnia. as such, two of the determining factors in the majority judgment in tadić “exceptional circumstances” and the absence of a witness protection programme could re-emerge in these trials. the application and interpretation of “exceptional circumstances” by the icty has been outlined above; however, there are additional factors that require consideration in present day bosnia. an osce report from 2005 describes the way in which the situation has changed for many witnesses in the context of refugee and displaced person return: “many witnesses now live in an environment different to the one in which they originally gave evidence to the police or prosecutors. many gave statements to judges, police and prosecutors of their own ethnicity shortly after the event or after the war. in may cases, the same people then moved abroad or to a community in bih dominated by members of their own ethnic group. they did not foresee the time when the suspect or the suspect’s family would become their neighbour once more or that they would be living in neighbouring communities with full and unchecked freedom of movement … feedback from osce trial monitors indicates that, especially in cases where defendants are powerful political figures or businessmen, ordinary citizens feel intimidated to act as witnesses.”63 the report notes further the difficulties that prosecutors’ offices face in getting witnesses to come to court, particularly returnees whose families are 61 see mclaughlin, above n 28 at 206; and lakatos, above n 29 at 920. 62 law on protection of witnesses under threat and vulnerable witnesses, “official gazette” of bosnia and herzegovina, no 3/03: article 12: limitation of the right of an accused and his defense attorney to inspect files and documentation, (1) in exceptional circumstances, if revealing some or all of the personal details of a witness or other details would contribute to identifying a witness, and would seriously endanger the witness under threat, the preliminary proceedings judge may, upon the motion of the prosecutor, decide that some or all of the personal details of a witness, may continue to be kept confidential after the indictment is issued. 63 osce, above n 4 at 23-24. the report notes that during the konjic 7 proceedings at the mostar cantonal court, a number of prosecution witnesses reneged on their original statements. the denning law journal 67 living in the entity, canton or village in which they are now a minority. they note that retaliatory measures may go beyond social exclusion and social stigma to more violent actions.64 regarding witness protection programmes, although the war crimes chamber has a solid programme in place,65 challenges remain. these stem from the general concerns related to conducting trials in the location where the crimes occurred; and difficulties with concealing the identity of witnesses in a small country.66 of much concern as well is the safety of witnesses giving testimony at war crimes trials at entity and cantonal courts. while protection systems may be sufficient at the state court level, witness protection measures at the sub-state level remain minimal and weak.67 thus, while more recent jurisprudence of war crimes trials concerning bosnia and herzegovina has not granted witness anonymity, there is still the potential for such measures to become an issue again in future trials. (ii) exclusion of the public article 20(4) of the icty statute states that “hearings shall be public unless the trial chamber decides to close the proceedings in accordance with its rules of procedure and evidence.” in tadić, the chamber recognised this preference for a public hearing; and the benefits of press and public access in helping to ensure a fair trial. however, it added that this requirement had to be “balanced with other mandated interests, such as the duty to protect victims and witnesses.”68 rule 75 provides for various measures to shield a witness from the view of the public and/or the accused, including expunging identifying information from public records; imageor voice-altering devices or closed circuit television; or closed sessions. closed sessions, which exclude the press and public, can be ordered by the chamber for reasons of safety, security or non-disclosure of the identity of a victim or witness; public order or morality; and the protection of the interests of justice.69 they are often used in cases involving rape and sexual assault in order to make it easier for victims to speak about these sensitive and distressing matters; and to protect victims from rejection by their family and community. in addition to protecting victims and witnesses from the public and media, such measures can be further beneficial in that they are much less intrusive to 64 ibid, at 26. 65 human rights watch discusses favourably the witness protection unit and the witness support office of the state court in promoting the safety and well-being of witnesses; see human rights watch, above n 24 at 29) 66 ibid. 67 see osce, above n 4 at 26-28. 68 tadić, above n 15, para 32-33. 69 rule 79, icty rules of procedure and evidence. the protection of witnesses in bosnian war crimes trials 68 the right of the accused to a fair trial than anonymity. they allow for the accused to know the identity of the witness and to fully prepare crossexamination.70 under bosnian law, there is also a presumption that trials will be public – as specified in article 234(1) of the criminal procedure code (cpc) of bih.71 the cpc also allows for exceptions under article 235. the public can be excluded at any time during the main trial “if it is to protect the public peace and order, to preserve morality in the democratic society, to protect the personal and intimate life of the accused or the injured or to protect the interest of a minor or a witness.”72 the court has allowed a number of closed sessions, under this provision, which has been criticised.73 in prosecutor v samardžić, the court recognised that a “public hearing is an essential feature of the right to a fair trial.” however, it decided to allow the prosecutor’s motion to close the main trial to the general public and press in order to protect the interests of the victims and witnesses. 74 many of the witnesses were women who were to testify about rapes and other humiliating treatment, some of who were minors and children at the time of the offence or the hearing. the court found that testifying about such matters in public is a risk to the personal and intimate life of witnesses; their identity could be deduced from the subject matter of their testimony, even if protective measures such as screen and voice distortion were used. in addition, the court considered that such testimony in public could be a risk to other victims should the witnesses mention their names during the proceedings.75 in prosecutor v stanković, the court decided pursuant to article 235 to close the entire main trial to the public as a rule. ultimately, some exceptions were made during the prosecutor’s presentation of evidence; and after hearing the witnesses for the prosecution, the continuation of the main trial was 70 mclaughlin, above n 28 at 199. 71 “official gazette” of bosnia and herzegovina, no 3/03; criminal procedure code (cpc) bosnia and herzegovina. 72 article 235 of the cpc also allows for exclusion of the public if “in the interest of the national security, or if it is necessary to preserve a national, military, official or important business secret.” 73 human rights watch, above n 18 at 31. 74 prosecutor v samardžić, case no. x-kr-05/49, decision of first instance of 7 april 2006, pp 8-9. the main trial was closed to the public from 6 march 2006 and reopened on 30 march 2006. another reason given by the court for closing the trials was that the witnesses could give the names of other alleged perpetrators linked to the crimes of rape and sexual slavery. 75 ibid, at 9; the icty in tadić had also recognised that the special concerns of victims of sexual assault must be considered in deciding whether to allow for closed sessions. the denning law journal 69 public, except for when discussing protected witnesses.76 the witnesses in stanković also testified about a large number of rapes and other humiliating treatment. the decision to close the trial was based on the need to preserve morality and, as in samardžić, to protect the personal and intimate life of injured parties; and other victims and witnesses.77 in addition, there were concerns that stanković would disclose to the public the identities and addresses of the witnesses for the prosecution, which he had threatened to do before the icty.78 in both these cases, the court allowed for representatives of the osce and other international institutions to attend the closed sessions, pursuant to article 236 of the cpc.79 still, the broad use of closed sessions has been a concern. a report by human rights watch emphasises that the right to a public trial is one of the fundamental safeguards of criminal procedure80 and questions the need to exclude the public. other human rights commentators and ngos have also critiqued the exclusion of the public and its potential to result in a violation of the rights of the accused. while closed sessions and non-disclosure of witness identities to the public does not threaten the right of the accused to cross-examination, the absence of public scrutiny could allow for witnesses to give false or misleading testimony.81 the importance of public scrutiny of trial testimony in deterring such false or misleading testimony is a key reason why the accused’s right to a public trial is considered a fundamental safeguard of criminal procedure and fairness.82 further, the right to a public hearing is expressly provided for by article 6 of the european convention on human rights (echr), as discussed in the following section. echr compatibility to what extent then are the rules and procedure of the wcc compatible with the rules of criminal procedure as laid down in the echr which bosnia has signed and ratified? 76 prosecutor v stanković, case no x-kr-05/70, decision of first instance of 14 november 2006, pp 12-13. 77 ibid. the court also cited as a reason for closing the trials that the witnesses could give the names of other alleged perpetrators linked to the crimes of rape and sexual slavery. 78 ibid. 79 article 236 of the cpc provides for “persons to whom exclusion of the public is not applicable”. 80 see iccpr, art 14(1); echr, art 6(1); universal declaration of human rights (udhr), adopted december 10, 1948, ga res. 217a(iii), un doc a/810 at 71 (1948), art 11), cited in human rights watch, above n 17 at 32. 81 pozen, above n 1 at 291; human rights watch, above n 18 at 31. 82 pozen, ibid; creta, above n 28 at 400. the protection of witnesses in bosnian war crimes trials 70 (i) anonymity article 6 echr provides that: “everyone charged with a criminal offence has the following minimum rights: to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him…”83 this provision has been subject to the strasbourg court’s interpretation on a number of occasions,84 however the court has not always been consistent in its interpretation. the law commission of england and wales observed that the strasbourg jurisprudence in this area of the law is “difficult to predict with confidence”85 and another commentator described the cases as “impossible to reconcile with each other.”86 while this may be true to a degree there are nevertheless principles that can be extracted from the court’s rulings when taken as a whole. further these principles are applicable to the use of anonymous witnesses in criminal trials. to date however there are no strasbourg cases on article 6 (3) that address the use of witness anonymity in war crimes trials. the arguments both for and against the use of anonymous witnesses in cases involving serious breaches of international human rights law are often of a greater intensity than is normally the case in domestic legal proceedings. this can complicate any prediction as to how the strasbourg authorities would approach or rule in a case involving war crimes, particularly given the inconsistency in its jurisprudence to date. nevertheless the basic legal framework of course remains the same. the strasbourg court has ruled in a number of cases that the constituent rights in article 6 are not in themselves absolute and its interpretation is primarily a matter for the national authorities.87 in luca v italy88 the court 83 article 6 (3) (d) european convention on human rights. 84 the word witness has been interpreted to included a person who has made a formal statement to the police, which the prosecution has then put in evidence at trial; kostovski v the netherlands (1990) 12 ehrr 434, para 40; delta v france (1993) 16 ehrr 574, para 34; artner v austria (1992) series a no 242, para 19; and windisch v austria (1991) 13 ehrr 281, para 23. 85 law commission no 245, hearsay and related matters 1997 (report no 245); available at http://www.lawcom.gov.uk/docs/lc245.pdf at para 5.1. 86 w o’brian “the right of confrontation: us and european perspectives” (2005) 121 law quarterly review 481. 87 see for example edwards v united kingdom (1992) 15 ehrr 417, paras 33-34; miailhe v france (no 2) (1996) 23 ehrr 491, para 43; rowe and davis v united http://www.lawcom.gov.uk/docs/lc245.pdf the denning law journal 71 held that “the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. the court's task under the convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair.”89 article 6 (3) (d) is expressly focused on the right of the defence to ask questions or confront witnesses. witness anonymity will prevent or restrict the defence from challenging a witness’s evidence sufficiently, but a number of strasbourg cases indicate that it is the confrontation rather than the anonymity with which the court is primarily concerned. in kostovski v netherlands90 the applicant was convicted on the basis of evidence provided by anonymous witnesses and was additionally denied the opportunity to put questions in cross examination. the court held that the rights of the defence to confrontation under article 6 had been restricted and the anonymity issue had “compounded the difficulties faced by the applicant”. 91 significantly the court observed: “if the defence is unaware of the identity of the person it seeks to question, it may be deprived of the very particulars enabling it to demonstrate that he or she is prejudiced, hostile or unreliable. testimony or other declarations inculpating an accused may well be designedly untruthful or simply erroneous and the defence will scarcely be able to bring this to light if it lacks the information permitting it to test the author's reliability or cast doubt on his credibility. the dangers inherent in such a situation are obvious”92 however the court also made clear that this is not absolute and there can be exceptions even where there has been confrontation: “these rights require, as a rule, that an accused be given, at some stage in the proceedings, an adequate and proper opportunity to challenge and question a witness against him.”93 kingdom (2000) 30 ehrr 1, para 59. adolf v austria (1982) 4 ehrr 313, 324-325, para 36, where the court, citing guzzardi v italy (1980) 3 ehrr 333, 361, para 88, and x v united kingdom (1981) 4 ehrr 188, 202, para 41; salabiaku v france (1988) 13 ehrr 379. 88 luca v italy (2003) 36 ehrr 46. 89 ibid, at h 6 (b). 90 kostovski v netherlands (1990) 12 ehrr 434. 91 ibid. 92 ibid, at para 42. 93 ibid, at para 41. the protection of witnesses in bosnian war crimes trials 72 it is questionable however that, even where there is an opportunity to challenge an anonymous witness, it can be considered ‘adequate and proper’ given the difficulties outlined in kostovski,94 with which the defence are faced. the strasbourg court will also evaluate the weight attached to evidence from anonymous witnesses and the extent to which a conviction is based on such evidence in determining whether the defendant’s rights under article 6 (3) are restricted. in windsch v austria95 the court found a violation of article 6 where the applicant’s conviction was based “to a large extent”96 on statements made by anonymous witnesses to the police. here the court observed that “the right to a fair administration of justice hold so prominent in democratic society that it cannot be sacrificed.”97 in unterpertinger v austria98 the court found a violation of article 6 (3) where the applicant was convicted ‘mainly’ on statements of witnesses who did not attend court. this decision is difficult to reconcile with the later ruling in artner v austria.99 in both cases there were absent witnesses with corroborating medical evidence, but in artner no violation was found. three dissenting judges in artner viewed the cases as indistinguishable.100 in luca v italy101 the court held that: “where a conviction is based solely or to a decisive degree [emphasis added] on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by art 6.”102 while the words “to a large extent” and “mainly” were used in windsch103 and unterpertinger,104 luca105 uses ‘solely or to a decisive degree’. however, 94 ibid, at 90. 95 windisch v austria (1991) 13 ehrr 281. 96 ibid, at para 31. 97 ibid, at para 30. 98 unterpertinger v austria (1991) 13 ehrr 175. 99 artner v austria (1992) series a no 342. 100 ibid. the decision was based on a five to four vote and provoked a strong dissent. see joint dissenting opinion of judges walsh, macdonald and palm who held that without the use of the statements no conviction could have been obtained. 101 luca v italy (2003) 36 ehrr 46. 102 luca v italy (2003) 36 ehrr 46 at h 8 (d). 103 windisch v austria (1991) 13 ehrr 281. 104 unterpertinger v austria (1991) 13 ehrr 175. the denning law journal 73 in ludi v switzerland106 it was enough that the evidence “played a part” in the conviction.107 in the more recent case of krasniki v czech republic108 a conviction based solely on the evidence of anonymous witnesses was not considered unsafe, but the court held the need for anonymity must be clearly established. these cases are slightly confusing, leaving the correct position difficult to predict with certainty. what is clear it that the court has made a significant departure from the language used in the text of article 6 itself, which states very clearly the “minimum rights” to which the defendant is entitled. the strasbourg court has, however, emphasised that for restrictive measures to be applied, they must be “strictly necessary” to be permissible under article 6.109 the court will look to strike a balance between competing interests, and in a number of cases has held that where the defendant’s rights are limited, this must be strictly necessary and done by the least restrictive means possible to achieve a given aim. in ludi v switzerland,110 the court found that the applicant’s conviction, based on unchallenged evidence given by anonymous police agents, was disproportionate. it was not their anonymity per se which the court found impermissible, but that the defence had not been given the opportunity to put questions to the witnesses. the court held that “it would have been possible to do this in a way which took into account the legitimate interest of the police authorities in a drug trafficking case in preserving the anonymity of their agent, so that they could protect him and also make use of him again in the future.”111 in saidi v france112 the applicant was denied requests to confront anonymous police officers and was convicted under dangerous drugs legislation. the respondent argued that “the protection of witnesses takes priority and their legitimate interest in remaining anonymous must be protected, so as to strengthen measures to combat drug trafficking.”113 this argument, clearly having little regard for due process and ‘minimum rights alike, was rightly rejected by the court which held it was “fully aware of the undeniable difficulties of the fight against drug-trafficking particular with regard to obtaining and producing evidence and of the ravages caused to 105 luca v italy (2003) 36 ehrr 46. 106 ludi v switzerland (1993) 15 ehrr 173 107 w o’brian “the right of confrontation: us and european perspectives” (2005) 121 law quarterly review 481. 108 krasniki v czech republic (application no 51277/99). 109 ps v germany (2003) 36 ehrr 61; [2002] crim lr 312. 110 above n 107. 111 ludi v switzerland (1993) 15 ehrr 173 at paragraph 49. 112 saidi v france (1994) 17 ehrr 251. 113 ibid, at para 33. the protection of witnesses in bosnian war crimes trials 74 society by the drug problem, but such considerations cannot justify restricting to this extent the rights of the defence of “everyone charged with a criminal offence”114 nevertheless in the later case of van mechelen v netherlands115 the court recognised that there can be special categories of witnesses and that the “balancing of the interests of the defence against arguments in favour of maintaining the anonymity of the witnesses raises special problems if the witnesses in question are members of the police force of the state.”116 such witnesses’ interest in remaining anonymous is, the court held, “to some extent different from that of disinterested witnesses or victims.”117 particular regard was given to the preservation of undercover agents and the protection of their families.118 the court did however reiterate the importance of the right to a fair administration of justice in a democratic society, and that any measures restricting the rights of the defence should be strictly necessary – “if a less restrictive measure can suffice then that measure should be applied.” here the defence was unaware of the identity of the police witnesses and was also prevented from direct questioning. the court viewed this as disproportionate and held that “it has not been explained to the court's satisfaction why it was necessary to resort to such extreme limitations on the right of the accused to have the evidence against them given in their presence, or why less farreaching measures were not considered.”119 a violation of article 6 was thus found. (ii) the rights of witnesses another important issue for which the strasbourg authorities will have regard when assessing the permissibility of witness anonymity, is the convention rights of the witnesses themselves.120 in doorson v netherlands,121 the court found there was sufficient reason to maintain the anonymity of drug addicts giving evidence against drug dealers and concluded that “drug dealers frequently resorted to threats and 114 ibid, at para 44. 115 van mechelen v netherlands (1998) 25 ehrr 647. 116 ibid, at para 2. 117 ibid, at para 56. 118 ibid, at para 56. 119 ibid, at para 60. 120 article 2 echr provides ‘everyone's right to life shall be protected by law. no one shall be deprived of his life…’ and article 8 echr provides ‘everyone has the right to respect for his private and family life, his home and his correspondence.’ 121 doorson v netherlands (1996) 22 ehrr 330. the denning law journal 75 actual violence against persons who gave evidence against them.”122 significantly the court observed that: “it is true that article 6 does not explicitly require the interests of witnesses in general, and those of victims called upon to testify in particular, to be taken into consideration. however, their life, liberty or security of person may be at stake, as may interests coming generally within the ambit of article 8 of the convention. such interests of witnesses and victims are in principle protected by other, substantive provisions of the convention, which imply that contracting states should organise their criminal proceedings in such a way that those interests are not unjustifiably imperilled. against this background, principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify.”123 although the court accepted that the anonymity of the witnesses “presented the defence with difficulties which criminal proceedings should not normally involve…” it held that “nevertheless, no violation of article 6 (1) taken together with article 6 (3) (d) of the convention can be found if it is established that the handicaps under which the defence laboured were sufficiently counterbalanced by the procedures followed by the judicial authorities.”124 here the court found that the questioning of the anonymous witnesses “at the appeals stage in the presence of counsel by an investigating judge who was aware of their identity”125 was a sufficient counterbalancing procedure.126 of course these cases cited in the strasbourg jurisprudence relate to domestic violence, drug dealing and other ordinary domestic offences and not to war crimes. however, the test for compatibility of witness anonymity with convention rights as established by the echr was adopted by the icty in prosecutor v tadić.127 the tribunal in tadić evaluated and distinguished the kostovski128 decision which the tribunal viewed as “not directly on point, as it does not relate to the testimony of unidentified witnesses who will be present in court, whose evidence will be subject to cross-examination, and whose demeanour is being observed by the judges of the trial chamber.”129 122 ibid, at para 71. 123 ibid, at para 70. 124 ibid, at para 73. 125 ibid, at para 73. 126 ibid, at para 73. 127 prosecutor v tadić. no it-94-1-t. 128 kostovski v netherlands (1990) 12 ehrr 434. 129 tadić, above n 14 at para 68. the protection of witnesses in bosnian war crimes trials 76 the tribunal also found that kostovski130 does provide that “procedural safeguards can be adopted to ensure that a fair trial takes place when the identity of the witness is not disclosed to the accused.”131 the following guidelines were stated by the tribunal to achieve this purpose: “firstly, the judges must be able to observe the demeanour of the witness, in order to assess the reliability of the testimony. secondly, the judges must be aware of the identity of the witness, in order to test the reliability of the witness. thirdly, the defence must be allowed ample opportunity to question the witness on issues unrelated to his or her identity or current whereabouts, such as how the witness was able to obtain the incriminating information but still excluding information that would make the true name traceable. the release of nicknames used in the camps clearly falls into this latter category and the majority of the trial chamber will therefore not allow the release of this information concerning witnesses who have been granted anonymity without the express consent of these witnesses. finally, the identity of the witness must be released when there are no longer reasons to fear for the security of the witness.”132 the tribunal also attempted to distinguish trials in a war crimes context: “the interpretations of article 6 of the echr by the european court of human rights are meant to apply to ordinary criminal and, for article 6 (1), civil adjudications. by contrast, the international tribunal is adjudicating crimes which are considered so horrific as to warrant universal jurisdiction. the international tribunal is, in certain respects, comparable to a military tribunal, which often has limited rights of due process and more lenient rules of evidence.”133 dissenting judge stephen disagreed strongly134 and could not so distinguish kostovski135 which he regarded as “clear guidance as to what are internationally recognised standards regarding the rights of the accused.”136 it may perhaps be seen as some-what odd that the majority in tadić clearly felt 130 kostovski v netherlands (1990) 12 ehrr 434. 131 ibid above n 130 para 69. 132 ibid, at para 71. 133 ibid, at para 28. 134 separate opinion of judge stephen, above n 39. 135 kostovski v netherlands (1990) 12 ehrr 434. 136 ibid, see n 136. the denning law journal 77 that “internationally recognised standards” do not apply to their international tribunal.137 it was however the kostovski138 case which clearly spelled out the danger of allowing witnesses anonymity when it stated that “testimony or other declarations inculpating an accused may well be designedly untruthful or simply erroneous and the defence will scarcely be able to bring this to light if it lacks the information permitting it to test the author's reliability or cast doubt on his credibility.”139 the icty in tadić would have been well advised to have noted this more carefully. the dangers in granting anonymity were, as geoffrey robertson qc points out, “dramatically illustrated from the tadić trial itself by the perjury of witness l.”140 witness l had been employed as a guard at trnepolje camp,141 in which capacity he committed serious crimes for which he had been convicted by a court in bosnia and herzegovina.142 he was made available by the bosnian authorities to give evidence for the prosecution in tadić and was afforded anonymity and the pseudonym witness l.143 he gave evidence of tadić’s involvement in 12 rapes and 30 murders, including the murder of witness l’s own father, whom -he saw murdered with his own eyes. in cross-examination, the defence asked “but isn’t your father still alive?” and then proceeded to produce an old man who “rushed in and embraced” the witness. the prosecution “sheepishly” asked the court to disregard witness l’s evidence in its entirety.144 the lessons to be learned from this are clear. 137 the majority however clearly recognised these as being international standards of due process: “in drafting the statute and the rules every attempt was made to comply with internationally recognized standards of fundamental human rights. the report of the secretary-general emphasizes the importance of the international tribunal in fully respecting such standards. (report of the secretary-general, above n 40, para. 106.) the drafters of the report recognized that ensuring that the proceedings before the international tribunal were conducted in accordance with international standards of fair trial and due process was important not only to ensure respect for the individual rights of the accused, but also to ensure the legitimacy of the proceedings and to set a standard for proceedings before other ad hoc tribunals or a permanent international criminal court of the future.” 138 kostovski v netherlands (1990) 12 ehrr 434. 139 ibid, at para 42. 140 g robertson crimes against humanity: the struggle for global justice (london: penguin books, 3rd edn, 2006) p 398. 141 internment camp in bosnia & herzegovina during the early 1990s. 142 prosecutor v tadić, no it-94-1-t decision on prosecution motion to withdraw protective measures for witness l 5 december 1996 available at http://www.un.org/icty/tadić/trialc2/decision-e/61205pm2.htm. 143 ibid. 144 ibid, pp 398 – 399. the protection of witnesses in bosnian war crimes trials 78 (iii) exclusion of the public article 6 (1) echr provides that “in determination of his civil rights and obligations or any criminal charge against him, everyone is entitled to a fair and public hearing…”145 the strasbourg court has held this aspect as a “fundamental guarantee”146 the purpose of which was made clear in werner v austria147 where the court said this: “…the public character of proceedings before judicial bodies referred to in article 6(1) protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts, superior and inferior, can be maintained. by rendering the administration of justice visible, publicity contributes to the achievement of the aim of article 6(1), namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the convention.”148 the publicity requirement will apply to both civil and criminal proceedings, at trial court level.149 the strasbourg authorities have also held that the right to a public hearing will apply to any phase in the proceedings;150 however “in applying the publicity requirement…account must be taken of the entirety of the proceedings in the domestic legal order.”151 there are however extensive limitations on the right to a public hearing provided by the text of article 6 itself where it is stated: “the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”152 145 article 6 (1) european convention on human rights. 146 sculer-zgraggen v switzerland (1993) 16 ehrr 405 at para 58. 147 werner v austria application no 21835/93 (1998) 26 ehrr 310. 148 ibid, at para 62. see also diennet v france (1995) 21 ehrr 554 at para 33 and pretto v italy (1984) 6 ehrr 182 at para 21. 149 fredin v sweden (no. 2) series a, no 283-a (1994) (1991) 13 ehrr 784. 150 axen v federal republic of germany ecthr series a, 72 (1983). 151 ibid, at para 2. 152 article 6 (1) european convention on human rights. the denning law journal 79 any limitation of the right to a public hearing under article 6 must be made on one of the grounds set out above.153 the provision also provides the need for a balance or test of proportionality. however unlike some other convention articles,154 the words ‘necessary in a democratic society’ are absent. this is significant because it is these words which have been often cited by the strasbourg court in leaving to contracting states a “margin of appreciation”155 when interpreting convention rights restrictively.156 there are no cases in which the court has adopted the margin of appreciation doctrine in respect of the right to a public hearing under article 6 (1).157 however it has been noted158 that a similar concept nevertheless applies and “the wording of the interests of justice restriction, in the opinion of the court clearly involves a margin of appreciation approach.”159 to that end the restrictions on the right to a public hearing exist not only in the text of article 6, but the court’s jurisprudence also restricts the right and has further “diluted the convention guarantee.”160 the exclusion of the public was considered permissible on the grounds of “public order” and the court had regard to the issue of proportionality, in campbell and fell v uk.161 here the respondent argued that there was a necessity to hold prison disciplinary hearings in camera due to security problems in either allowing the public access to, or transporting prisoner from, the prison precincts. the court held that the imposition of public hearings “would impose a disproportionate burden on the authorities of the state”162 and proceedings in camera were thus justified “for reasons of public order and security.”163 153 gautrin and others v france (1999) 28 ehrr 196 (38/1997/822/1025-1028). 154 articles 8-11 all contain the words “necessary in a democratic society”. 155 the margin of appreciation allows “a degree of latitude to states as to how they protect the individual rights set out in the convention. the margin has been held to be especially important in areas where there is said to be an absence of consensus or common practice across europe…” (lewis t “what not to wear: religious rights, the european court, and the margin of appreciation” (2007) 56 international and comparative law quarterly 395). 156 for example see leyla şahin v turkey (application no 44774/98) or the discussion in g letsas “two concepts of the margin of appreciation” (2006) 26 oxford journal of legal studies 705. 157 see harris, o'boyle and warbrick law of the european convention on human rights (london: butterworths, 1995). 158 ibid. 159 ibid p 218. 160 ibid. 161 campbell and fell v uk [1985] 7 ehrr 165, series a no 48. 162 ibid. 163 ibid. the protection of witnesses in bosnian war crimes trials 80 in x v uk164 the irish applicant was convicted of the terrorist murder of two british soldiers in belfast. the screening of witnesses from the public was held permissible on ‘public order’ grounds and the court observed that “the interference with the right to publicity was kept to a minimum by the fact that the public was not excluded from the proceedings and could hear all the questions put to and answers given by the witnesses…the screening was in the interests of public order or national security and to the extent strictly required in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”165 in a number of cases, the strasbourg authorities have upheld restrictions on the right to a public hearing on the basis of protecting “the interests of the parties.” trials in camera have been upheld in medical disciplinary proceedings in order to protect the “private life of the parties,” which presumably means the medical professionals and the patients, although in diennett v france166 the court held that “such an occurrence must be strictly required by the circumstances.”167 in b v uk168 the court held that the exclusion of the public was justified in divorce proceedings “in the interests of justice and to ensure that the privacy of children is protected.”169 it may of course be argued that in criminal proceedings a higher threshold should be applied. however the court made clear that “even in a criminal law context where there is a high expectation of publicity, it may on occasion be necessary under article 6 to limit the open and public nature of proceedings in order, for example, to protect the safety or privacy of witnesses or to promote the free exchange of information and opinion in the pursuit of justice.”170 such an occasion arose in x v austria171 where the exclusion of the public in criminal proceedings involving sexual offences against minors was permitted under article 6 (1). presumably this 164 x v united kingdom app no 20657/92 (1993) 15 ehrr cd113. 165 ibid, at para 1. 166 diennet v france (1996) 21 ehrr 554. 167 ibid at para 34. see also l v finland (25651/94) [2000] 1 flr 118; jurisic v austria (app no 62539/00) 2006 echr. the court in diennet found that ‘while the need to protect professional confidentiality and the private lives of patients may justify holding proceedings in camera, such an occurrence must be strictly required by the circumstances. no such justification existed in the instant case and accordingly there had been a breach of art 6 (1). 168 b v united kingdom. p v united kingdom application nos 36337/97 and 35974/97 (2002) 34 ehrr 19. 169 ibid. 170 ibid at para h7 (c). 171 x v austria, no 1913/63, 2 digest 438 (1965). the denning law journal 81 was done on the article 6 (1) grounds of in the “interests of juveniles” although the court did not specify as to which restriction it was applying.172 it has been argued that the importance of a public hearing is even more pronounced in the context of war crimes and violations of human rights law,173 although as with anonymity it is not an issue that the strasbourg court has addressed. further, the strasbourg authorities are concerned not so much by the seriousness of a given crime, but look more to the grounds on which a restriction is made, and to that end whether article 6 (1) applies. the court in gautrin174 held that where none of the restrictions apply, no violation will be found.175 echr compatibility with the exclusion of the public in a war crimes context has however been considered on a number of occasions by the bosnian state court. bosnia & herzegovina has signed, ratified and is bound by the echr.176as discussed above, the bosnian court has adopted a broad use of exclusion of the public and media from trial proceedings. in samardžić177 and stanković,178 proceedings were held “almost entirely in closed session.”179 the court in stanković excluded the public on the grounds of “the protection of the private life of the parties”, which is of course one of the restrictions under article 6 (1). the court of first instance said this: “in the opinion of the panel [exclusion of the public] was necessary to preserve morality and protect the personal and intimate life of the injured parties and the interests of the witnesses, given that these are witnesses who should testify in respect to a great number of rapes and other humiliating proceedings, which might appear to tarnish their reputation and damage family life, that majority of them were very young at the time of the commission of the criminal offence who, in the meantime founded their families and have now personal and family life. testifying in public about such delicate and sensitive matters, even with certain measures of protection, in the opinion of the 172 harris, o'boyle and warbrick law of the european convention on human rights, (london: butterworths, 1995). 173 see r dicker and b adams “letter to the secretariat of the rules and procedure committee” extraordinary chambers of the courts of cambodia, human rights watch november 17, 2006. available at http://www.hrw.org/backgrounder/ij/cambodia1106/#_ftn43. 174 gautrin and others v france (38/1997/822/1025-1028). 175 ibid, at paras 42-43. 176 ibid n 25. 177 prosecutor v samardzic. case no x-kr-05/49. 178 prosecutor v stankovic case no x-kr-05/70. 179 human rights watch, above n 17, iv. witness protection and support. the protection of witnesses in bosnian war crimes trials 82 court, always presents a risk for private and personal lives of the witnesses – victims, because in a small community a not controlled small detail of the story might be enough to reveal the identity of the protected witnesses.”180 on appeal the appellate panel found the first instance panel “took into account the need to strike a balance between the rights of the accused to a public trial and the protection of morality and interests of the witnesses…”181 on that basis the court found the test had been “correctly and fully applied.”182 although applying a restriction expressly provided by the text of article 6 (1), in neither ruling did the court give any detailed assessment of the strasbourg authorities discussed above. instead it appeared to be relying on the text in article 6 (1) itself. this is not wrong and does not in itself render the decisions in any way unreliable; however many of the strasbourg cases include powerful statements as to the high level of importance to which the right to a public hearing is held. it may be argued that such consideration was missed by the bosnian court and it has been pointed out that the necessity of applying such restrictive measures is questionable.183 in janković;184 a case decided less than a year after stanković and also involving serious breaches of human rights law,185 the proceedings were conducted “almost entirely in open session”.186 significantly some of the witnesses giving evidence also testified in the samardžić and stanković cases, under protective status.187 this raises the question as to how necessary it could really have been to exclude the public from the entire proceedings “as a rule” in stanković, 188 if it was not strictly necessary less than a year later in janković. 180 stanković, above n 76. 181 prosecutor v stanković case no x-kr-05/70 appellate decision of 28 march 2007 p 7. 182 ibid. 183 human rights watch, above n 18, iv. witness protection and support. 184 prosecutor v janković case no x-kr-05/161. 185 gojko janković was charged on indictment dated 27.06.2006 with crimes against humanity contrary to article 172. 186 human rights watch, above n 18, iv. witness protection and support. 187 ibid: “there were seven overlapping witnesses between the janković and stanković cases, and at least five overlapping witnesses with the samardžić case. human rights watch interview with special department for war crimes staff, sarajevo, september 27, 2006; human rights watch telephone interview with special department for war crimes staff, sarajevo, november 30, 2006. 188 above n 76. the denning law journal 83 the court in stanković did appear to consider the application of less restrictive measures, but concluded that the risk to the witnesses would remain “even with certain measures of protection.”189 the court did not state what measures it had in mind. to the court’s credit, as noted above, measures to protect the accused when the public was excluded were put in place trial monitors and representatives from the osce190 were present throughout.191 nevertheless the removal of the public from the entire proceedings in a serious criminal trial is an extreme measure. the strasbourg court has upheld restrictions where the risk to the witnesses on the face of it appears less than to those giving evidence in stanković, and where the restriction specified under article 6 (1) has been the same.192 however for the removal of the public to be permitted under article 6 (1) it is likely the strasbourg court would require the highest levels of necessity given the extensive restrictions applied. the broader purpose of war crimes trials the use of anonymity and closed sessions at the icty and the war crimes chamber have been controversial because of their impact on the rights of the accused. however, in the case of war crimes trials and the prosecution of extreme violations of human rights, the debate takes on broader dimensions. the debate concerns not only the rights of the accused, but also special considerations for victims and the impact of such trials on the wider community in post-conflict societies. it raises the question of what the predominant purpose of such trials is. if the purpose is determining the guilt or innocence of those accused of war crimes, crimes against humanity and or genocide, then the same arguments made concerning the rights of the accused are valid. the ability of the accused to effectively cross-examine witnesses and put forth an informed 189 ibid above n 190. 190 the organization for security and cooperation in europe has monitored a great many of the trials at the bosnian state court. for their most recent report see osce report: war crimes trials before the domestic courts of bosnia and herzegovina: progress and obstacles. march 2005. 191 see stanković, above n 76. 192 for example in divorce or medical disciplinary proceedings see diennet v france (1995) 21 ehrr 554; b v united kingdom, p v united kingdom application nos 36337/97 and 35974/97 (2002) 34 ehrr 19; guenon v france no 13652/88 66 dr 181 (1990) and imberechts v belgium no 15561/89 69 dr 312 (1991). the protection of witnesses in bosnian war crimes trials 84 defence; and public scrutiny of testimony, contribute to ascertaining the truth and assessing innocence or guilt to the required level of certainty.193 if the purpose is to ameliorate suffering and to contribute to the healing process for victims and witnesses, efforts must be made to minimise any trauma and insecurity associated with testifying. there is a great deal of literature which discusses the retraumatisation of a victim from having to confront her alleged rapist in trial, describe what he did to her and face hostile defence questioning. further, many rape victims feel guilt and shame as well as fear of rejection by their husband or family and fear of reprisals against themselves and their families.194 in tadić, the trial chamber emphasised that standards designed to apply to “ordinary criminal and … civil adjudications” were not appropriate for adjudicating crimes “so horrific as to warrant universal jurisdiction.”195 as discussed above, the drafters of the icty statute also seem to have recognised the unique nature of such crimes by imposing a positive obligation to provide protection to victims and witnesses in article 21(2) and article 22.196 failure to protect witnesses from trauma and to ensure their safety through appropriate protective measures would undercut the purpose identified here. such measures could arguably involve non-disclosure of their identity to the public, and in extreme cases, to the accused. failure to protect witnesses could also result in the unwillingness of witnesses to testify, which in turn, could prevent the prosecution of those accused. this would undercut the purpose of determining the guilt or innocence of alleged perpetrators.197 if the purpose is to establish a historical record of the war and to educate, the unwillingness of witnesses to tell their experiences due to insufficient protection would also undercut this purpose. however, some witness protective measures could also undermine the establishment of such a record. non-disclosure of witness identities to the accused and lack of public scrutiny of witness testimony, as discussed, can impede truth gathering and the development of an accurate historical record. in addition, closed sessions impede the development of public knowledge, education and understanding.198 furthermore, trial transcripts and judgments filled with 193 see pozen, above n 1 at 291 and 320; mclaughlin, above n 28 at 207; leigh, above n 28 at 80-81; human rights watch, above n 18 at 31 and above n 24 at 31; creta, above n 28 at 400. 194 see chinkin, above n 29 at 75 and 78; lakatos, above n 29 at 919. 195 tadić, above n 15 at para 28. 196 ibid; see also affolder, above n 34 at 455. 197 chinkin, above n 29 at 76; lakatos, above n 29 at 920-921; doak, above n 29 at 21. 198 see human rights watch, above n 18 at 31; creta, above n 28 at 400. the denning law journal 85 redactions and pseudonyms create an unclear and incomplete record of events.199 if the purpose is to establish rule of law and confidence in the judicial system, then the trials and the institutions in which they are conducted must be deemed legitimate. anonymity and concerns about the rights of the accused undermine confidence in the system and the belief that justice is being done.200 in addition, the broad use of closed sessions can negatively impact public perception and confidence. public and transparent proceedings contribute to confidence in the system and allow the public to assess whether the trial is in fact objective and fair;201 and knowledge of a witness’ identity gives more legitimacy to the specific trial.202 for example the trial of general blaškić was of great public interest in croatia and was reported throughout the country. the use of anonymous witnesses would have raised public criticism of the trial.203 public confidence in the criminal justice system and the legitimacy of justice institutions is especially important in post-conflict societies, such as bosnia and herzegovina, because of the acknowledged deficiencies in the justice system during the war and immediately thereafter. the war crimes chamber was created in part to address these deficiencies and contribute to rule of law in bih.204 ultimately, to be considered legitimate, war crimes trials must comply with international law. the various aims of such trials and the particular contexts in which they are conducted must be given necessary attention, but within the framework of established international standards. conclusion the balance between the interests of victims and the rights of the accused is a difficult one to strike. the arguments in favour of applying restrictive measures to protect victims and witnesses are strong and often compelling. this is compounded by the issues that arose in the bosnian war crimes trials. the ferocity of the conflict and brutality of the acts committed has made the situation particularly difficult. many of the crimes have been of a sexual nature. the size of the country and close proximity of its communities makes the need to protect the victims an especially sensitive and particularly important task. 199 pozen, above n 1, at 319-320. 200 doak, above n 29 at 17. 201 human rights watch, above n 18, at 31-32; pozen, above n 1, at 313. 202 human rights watch, above n 18, at 31-32. 203 defrancia, above n 54, at 1418. 204 human rights watch, above n 18, at 31-32. the protection of witnesses in bosnian war crimes trials 86 however, the defendant’s right to a fair trial is one of the corner stones of justice in a democratic society. it is an historic right that should not be subordinated to the issue of protecting witnesses. as the strasbourg court has made clear “the right to a fair administration of justice holds so prominent in democratic society that it cannot be sacrificed.”205 for a fair balance to be found due weight must be given to each side, without compromising the other. the icty and wcc have not always struck this balance. arguably both courts have overly compensated in protecting the interests of victims and have adversely impacted the rights of the accused. a common theme where the courts have failed to strike an appropriate balance is that significant weight is placed on protecting the victims and witnesses whilst insufficient regard is placed on the rights of the accused. arguments that war crimes are unique and exceptional situations are relied on heavily in justifying departure from internationally accepted standards of due process. war crimes trials are unique and exceptional, but just as this is an argument that special consideration should be given to victims and witnesses, so it requires that standards of due process and the right to a fair trial are heightened in their importance also. where this is forgotten a fair balance will not be found. the strasbourg court has principally held that although the rights of the defence may be limited in certain situations this must be strictly necessary and done by the least restrictive means possible. these principles are not easily detected in the rulings discussed above in tadić and stanković. although both the icty and wcc have shown a shift towards a more proportionate approach to the competing rights of victims and defendants, there is a clear potential for further conflict to arise. the words ‘strictly necessary’ and by the ‘least restrictive means’ possible’ should be evaluated with great care and narrowly applied. 205 above n 90, at para 30. for the purposes of right to self-determination, how does one define people in context of kashmir the denning law journal 183 the denning law journal 2009 vol 21 pp 183-188 book review mccoubrey & white’s textbook on jurisprudence j e penner, 4th edn (oxford: oxford university press 2008) isbn 9781847030221 james slater∗ professor j e penner has assumed responsibility for mccoubrey and white’s textbook on jurisprudence, in the form of the new 4th edition. previous editions were well structured, clear and wide ranging introductions to a difficult subject, and in these respects penner’s 4th edition is no different. the main changes are twofold. first, there is more detailed exploration of certain topics; secondly, there is a broadening of subject matter through the inclusion of theoretical schools unaddressed by previous editions. overall, the 4th edition is a significant improvement on its predecessors and penner is to be congratulated for making a good textbook better. the way the subject of jurisprudence is divided by the textbook follows tradition. thus the chapter titles include ‘classical natural law’, ‘classical legal positivism: bentham, austin and kelsen’, ‘legal realism’, ‘hart: the critical project’, ‘critical legal studies’ and ‘the economic analysis of law’. what are new to this edition are the chapters ‘marxist theories of law’ and ‘feminist legal theory’; these new chapters address important schools of thought and are therefore welcome additions. overall, the textbook is comprehensive and versatile and should, as a result, find itself on the reading list of many jurisprudence courses. jurisprudence is complex subject, requiring a level of philosophical sophistication unmatched by anything else on the undergraduate law curriculum. in light of this it is challenging to teach at undergraduate level. if a textbook is to assist with this challenge, it must make the topic comprehensible without excessive omission and/or distortion in the name of simplification. this is a difficult balancing act and penner’s textbook accomplishes it well. for example, the chapter on classical natural law does justice to the richness of the subject whilst remaining accessible; particularly ∗ ba (sussex), llm (harvard), phd (birmingham), senior lecturer in law, the university of buckingham. book review 184 welcome is the informative discussion of islamic law.1 the nature of american legal realism is clearly explained, with succinct biographies of holmes, llewellyn and frank followed by thematic analysis. the chapter on the critical legal studies movement gives an accurate yet succinct flavour of this radical descendant of american legal realism, and does not shy away from engagement with the complex work of roberto unger. also noteworthy is the illuminating distinction penner sets out in the opening chapter between what he calls the philosophy of law and legal theory.2 in the former he places the task of understanding the phenomenon of law in abstract: how is it identified? is it coercive by nature? in what sense does it relate to morality? legal theory, on the other hand, accepts some kind of definition of law but addresses, amongst other things, its role in society, whether it is a force for good or oppression, and what practical effects it can have. penner acknowledges, correctly, that there is much cross fertilisation between these two general categories, but marking the distinction certainly helps to see the ways that, for example, the analytical endeavours of hart and dworkin differ from the more practical and critical concerns of the american legal realists and feminist theorists. my only criticism here is that, having set out this useful distinction, it is never mentioned again; certainly undergraduate students, at whom the book is primarily targeted, could do with occasional reminders of its relevance to whatever topic is under analysis. nevertheless, on a few occasions, i felt the textbook would have benefited from a more in-depth analysis of the issues it raises. i will focus on two instances where that deeper analysis would have been welcome: the plausibility of h l a hart’s approach to legal reasoning, and the concepts of, and distinction between, soft and hard positivism. an important feature of hart’s legal theory is his vision of legal reasoning, and penner addresses this vision through hart’s refutation of rule scepticism, during which he summarises the distinction hart drew between the core and penumbra of a rule.3 hart’s view was that rules are made up of words, with those words having a core of determinate, or settled, meaning, and a penumbra of indeterminate meaning. from this, hart inferred that when a situation falls within the core meaning, as is the case in most instances, the rule settles the dispute without the exercise of discretion, thereby confounding the rule sceptic. only in the penumbra, where the word’s meaning is unclear, must the judge exercise discretion, and in such situations he should exhibit imagination, flexibility and awareness of social consequences in reaching his 1 a discussion, at pp 25-34, that is new to this edition. 2 pp 1-6. 3 p 77. hart’s theory of legal reasoning is also mentioned at p 121. the denning law journal 185 decision.4 in such situations, hart accepts that the rule sceptic is welcome, but argues that this relevance in the penumbra should not blind us to his irrelevance at the core.5 hart’s reference to the core and the penumbra is meant to track a distinction between easy cases, where the legal resolution of a case is governed by the law unambiguously, and hard cases, where the law is ambiguous, and the judge is thereby obliged to exercise discretion in order to reach a decision. in such cases, discretion is exercised with the use with nonlegal materials of a moral and practical nature. in such cases the judge does not apply existing law, at least not exclusively, but makes new or fresh law. having set out hart’s refutation of the rule sceptic, penner draws attention to the case of ag v prince ernest augustus of hanover.6 this case concerned the meaning of an antique statute, the princess sophia naturalisation act 1705; the act provided that: “princess sophia...and the issue of her body and all persons lineally descending from her, born or hearafter born, be and shall be, to all intents and purposes whatsoever, deemed, taken, and esteemed natural-born subjects of this kingdom.” the act was the product of constitutional expediency, ensuring that, in light of queen anne’s childlessness, the next monarch would be british. prince ernest august of hanover, a distant descendant of princess sophia, claimed british nationality under the literal interpretation of the act, an interpretation accepted by the high court. the court of appeal, approaching the act under the golden rule of interpretation, held that such an outcome would be absurd, thereby reversing the decision. the house of lords restored the decision of the high court; penner comments: “whatever view may be taken of this case and its outcome, it would appear that there was a choice to be made within an open-textured provision.”7 despite the reference to open-texture, i believe penner’s point is that the difference of opinion between, on the one hand, the court of appeal, and, on the other, the high court and house of lords, reveals the possibility of discretion despite a situation falling within the core of settled meaning of the language used by a rule. this potentially undermines hart’s theory of legal reasoning in important ways, yet, instead of entering into an analysis of how this might be, penner confines himself to the comment 4 h l a hart essays in jurisprudence and philosophy (oxford university press, 1983) pp 66-67. 5 hart the concept of law (oxford: clarendon press, 2nd edn, 1961), chapter vii “formalism and rule-scepticism”; see, in particular, p 154. 6 [1957] ac 436. 7 p 79. book review 186 quoted. however, the average undergraduate would certainly benefit from such an analysis, in particular an exploration of lon l fuller’s criticism of hart that the application of statutory provisions always requires reference to their purposes, with the result that the difference between easy and hard cases depends not on the determinacy or otherwise of language, but our understanding of its meaning in light of those purposes.8 similarly, there is failure to engage in sufficient depth with the concepts of, and distinction between, soft and hard positivism. positivism is the thesis that the sources of law are exclusively a matter of social fact.9 soft positivism holds that those factual sources can nevertheless make morality a necessary condition of legal validity, whereas hard positivism denies the possibility of even this contingent relationship between legal validity and morality. despite its importance, soft positivism is only mentioned once, in the context of the debate between hard and soft positivists, yet its importance means it merits considerably more attention than it receives. for example, not only is it relevant to the debate with hard positivism, it also features prominently in hart’s defence of the concept against criticisms levelled by ronald dworkin at his account of soft positivism and soft positivism generally.10 a summary and critique of hart’s defence of the concept against criticisms levelled by dworkin would not be amiss in a textbook such as this. hard positivism, specifically joseph raz’s version thereof, does receive more attention.11 penner explains how raz justifies his hard positivism by reference to a vision of law as a practical authority.12 according to this vision, the purpose of law is to mediate between the reasons which apply to the subject’s case and the subject, and, having performed this function, to tell the subject what to do without any need for the subject to explore what is required 8 see lon l fuller “positivism and fidelity to law” (1958) harvard law review 630 at 661-669, discussed by neil simmonds in central issues on jurisprudence (london: sweet and maxwell, 3rd edn, 2008) pp 163-164. 9 see generally john gardner “positivism: 51/2 myths” (2001) 46 american journal of jurisprudence 199. see also the online entries to the stanford encyclopedia of philosophy, “legal positivism” and “the nature of law”, by leslie green and andrei marmor respectively. 10 see “postscript”, above n 5, especially pp 250-254. 11 pp 135-139. 12 see for example: the authority of law: essays on law and morality (oxford: clarendon press, 1979); ethics in the public domain (oxford: clarendon press, 1994) especially chapters 8 and 9 (“the problem about the nature of law” and “authority, law and morality”); the morality of freedom, especially chapter (“the justification of authority”); and “facing up: a reply” (1989) 62 southern california law review 1153–1235. a very good general discussion of raz’s hard positivism can be found in h davies and d holdcroft jurisprudence: texts and commentary (london: butterworths, 1991) chapter 1 “legal positivism”. the denning law journal 187 on the balance of reasons. if it cannot do this, with the result that the subject is forced back onto an analysis of what to do in light of the relevant reasons, it is no longer acting as an authority. to the extent, therefore, that the law does not give such clear-cut guidance, it is not fully formed, requiring the judge to create, or supplement, the law by reference to extra legal factors of a moral or other kind. hard positivism flows from this vision of law as a practical authority because, arguably, the law can only act as an authority when it can be identified and applied without recourse to these extra legal factors.13 what is missing from penner’s analysis is whether raz’s justification for hard positivism is sustainable in light of the reality of legal reasoning, including raz’s acknowledgment that judges often mix law application and law creation when deciding cases,14 and also retain a power, within institutional limits, to ignore clear law in the name of morality and justice.15 this need to supplement the law with extra legal factors when deciding cases arguably threatens raz’s justification for hard positivism, because, if it is the norm rather than the exception, the frequent reference to extra legal factors severely compromises law’s practical utility, with the result that it can no longer fulfil its authoritative function. though this debate is complex, it would not be out of place in an undergraduate textbook to give something of its flavour, in particular some sense of the criticisms of raz made by gerald postema,16 and raz’s response to those criticisms.17 however, penner makes no mention of the debate.18 nevertheless penner’s willingness to engage with raz’s is a step in the right direction. striking the balance articulated above between comprehensibility and complexity remains a challenge to a large extent unmet 13 the authority of law, see above n 12, pp 49-50. 14 the authority of law, ibid, pp 208-209. see also “on the nature of law” (1996) 82 archive fur rechts und sozialphilosophie 1, and “why interpret?” (1996) 9 ratio juris 349. 15 “facing up”, above n 12, at 1204 and 1208-09. 16 see gerald j postema “law's autonomy and public practical reason” in robert p george (ed) the autonomy of law: essays on legal positivism (oxford: oxford university press, 1999) pp 79-118. similar criticisms have been made by fernando atria: see “legal reasoning and legal theory revisited” (1999) 18 law and philosophy 405, also to be found in fernando atria and neil maccormick (eds) law and legal interpretation (international library of essays in law & legal theory: second series) (vermont: ashgate publishing company, 2003). 17 “postema on law’s autonomy and public practical reasons: a critical comment” (1998) 4 legal theory 1. 18 penner has addressed the jurisprudential issues raised by legal reasoning in chapter 14 “legal reasoning” in d schiff and r nobles (eds) introduction to jurisprudence and legal theory: commentary and materials (oxford: oxford university press 2005) 649. book review 188 by textbook writers where raz is concerned, but penner has made good progress in so doing. overall, this is a very good textbook, and one that i would be more than happy to recommend to my undergraduate jurisprudence students. it is clearly written, and strikes a good balance between accessibility and complexity. book review james slater( for the purposes of right to self-determination, how does one define people in context of kashmir the denning law journal 93 the denning law journal 2009 vol 21 pp 93-103 the changing face of the city# ann halpern∗ today, i want to focus on what was until recently called a credit crunch which has now turned into a credit crisis and, in the city, become something of a disaster with jobs and markets disappearing. i am going to look at the origins of the current economic situation and the implications of this for legal work in the city. if i have time i will also mention some recent research about the differences between men and women when it comes to appetite for risk taking and the implications of this for the banking sector in particular. the origins of the credit crisis all commentators agree that the origins of the current crisis can be firmly laid at the door of the sub-prime mortgage fiasco in the united states. how is it possible that something that sounds so local to a country and a market could possibly have caused what now appears to be a worldwide recession? as this lecture progresses i hope you will see how the financial markets and the legal products that support the creative structures that are used to keep money moving round the globe are so intricately connected that a crisis in one large and important market like the usa can impact on all financial markets. sub-prime mortgages what are sub-prime mortgages? these are mortgages advanced to people who would not have qualified for a traditional mortgage because they either have no credit record or have a poor credit rating due to a history of failing to pay or owe comparatively large sums on unsecured loans or have large credit card debts etc. prime mortgages are those made to people whose credit rating suggests that they will be a good credit risk because they have relatively little debt and have a solid repayment history. when banks lend to people with a poor credit risk those borrowers typically pay a much higher interest rate for their loan than borrowers with a # visiting professorial lecture, october 2008. ∗ llm, barrister, at the time director of practice and organisational management, norton rose, london. the changing face of the city 94 good credit history so sub-prime borrowers would pay very high interest rates for their loans making their borrowing very costly. excessively high interest rates can be challenged in the courts in some countries, for example, an hsbc subsidiary1 recently was forced to settle a class action brought by a number of borrowers for unconscionable lending. so while banks can charge more interest for these types of loan they have to be careful not to overstep the mark into an unfair relationship.2 whilst the higher interest rates charged means that the bank is being paid extra for taking the extra risk of default, the impact of these rates on borrowers can be an increase in defaults as it is harder for them to afford the repayments. 1 “according to a lawsuit filed in illinois, hsbc found customers by scanning lists of people who held mortgages and also had high credit card balances with k-mart, best buy, costco and other retailers affiliated with hsbc that provided the lists. after aggressive mailings and phone calls, hsbc would "trick" the homeowners into providing their social security numbers, which allowed hsbc to gain access to their complete credit histories, and use the information to talk people into high-interest consolidation loans, the suit says. the loan amounts were so high and with interest up to 20 percent that they often far exceeded the value of the homes, and made it impossible for the family to ever refinance with a competitor, according to the lawsuit. hsbc settled that lawsuit, denying any wrongdoing. it has since been sued by acorn, the grassroots organisation, and others. hsbc has plenty of company.” inter press service: homeowner rip-offs spark scores of lawsuits: march 12, 2009 by adrianne appel. 2 consumer credit act 2006 inserting new provisions into the consumer credit act 1974 on unfair relationships between creditors and debtors: section 140a (1) the court may make an order under section 140b in connection with a credit agreement if it determines that the relationship between the creditor and the debtor arising out of the agreement (or the agreement taken with any related agreement) is unfair to the debtor because of one or more of the following— (a) any of the terms of the agreement or of any related agreement; (b) the way in which the creditor has exercised or enforced any of his rights under the agreement or any related agreement; (c) any other thing done (or not done) by, or on behalf of, the creditor (either before or after the making of the agreement or any related agreement). (2) in deciding whether to make a determination under this section the court shall have regard to all matters it thinks relevant (including matters relating to the creditor and matters relating to the debtor). (3) for the purposes of this section the court shall (except to the extent that it is not appropriate to do so) treat anything done (or not done) by, or on behalf of, or in relation to, an associate or a former associate of the creditor as if done (or not done) by, or on behalf of, or in relation to, the creditor. (4) a determination may be made under this section in relation to a relationship notwithstanding that the relationship may have ended. (5) an order under section 140b shall not be made in connection with a credit agreement which is an exempt agreement by virtue of section 16(6c). the denning law journal 95 most sub-prime mortgages were set up with a low cost start (where the borrower initially makes smaller repayment instalments but as time goes by – typically each year for 3 – 5 years – repayment instalments increase in value) but as the loan continues increasingly large sums are required to be paid monthly to repay it. low cost starts assume that the borrower’s income or available money will increase over time – but if the borrower falls out of work or just cannot afford the higher payments – then the increasing demands can force the borrower to default leading the bank to foreclose on the mortgage in order to recover the loan and outstanding interest. as the economy in the usa began to falter and interest rates increased and unemployment began to rise increasing numbers of borrowers found themselves unable to afford to pay the increasing costs of their mortgages resulting in a massive increase in the number of mortgage defaults in the subprime market. even so, had the property market held up and property prices continued to rise the security for the loans would have been of value. however, with the problems in the us economy becoming ever more acute the value of property began to fall steeply. homes could not be sold. us banks lending to subprime borrowers began to find that the security for the mortgage – the borrower’s home ceased to be of much value as security. the model on which the loans had been made began to fall apart as the banks were finding that they could not recoup their money because homes would not sell and when they did sell would sell for less than the value of the mortgage and more often than not considerably less than the purchaser paid for it. the more foreclosures, the greater the number of properties on the market, and the lower the price those properties could command, the reality of supply and demand curves meant too many homes for sale in a falling market and the banks began to lose money when seeking to enforce their security. why wasn’t the sub-prime mortgage fiasco confined to the usa? uk headquartered banks (and not only uk banks) had been watching the sub-prime market with some interest. banks are always looking to expand into new markets that offer their business profit growth potential. to attract investors and keep institutional investors satisfied all businesses quoted on the stock exchange are constantly looking for ways to increase their attractiveness. the models which enabled banks to assess risk and lend to sub-prime borrowers appeared to provide a tried and tested methodology to enable banks to lend to a raft of brand new consumers in the so-called “emerging markets” like china and india. in china and india many of those who had previously made their living in agriculture were beginning to move away from the land and into earning their living from employment in the changing face of the city 96 manufacturing, often working for western companies outsourcing their production and service requirements to cheaper countries. the banks were keen to tap into these markets and gain new customers who would be becoming consumers requiring credit – particularly since their traditional markets had near enough reached saturation point except for new products. hsbc provides a good example of this type of business planning. hsbc’s strategy for growth was to expand their business in the “emerging markets” of south america, africa, china and india where they could see vast numbers of new consumers keen to use credit. they bought household insurance – a us bank specialising in sub-prime lending – which had developed a complex mathematical model to assess sub-prime risk. they planned to use this model in assessing the risk of taking on new customers in the emerging markets.3 off–balance sheet a balance sheet gives a snapshot of a company's financial situation at a given moment. it shows how effective a company is at trading, and at doing what it has been set up to do. in order for the balance sheet to look sound banks would typically sell off their loans to other entities “off balance sheet trading” so that they would not need to hold capital against them, as banks have to do with conventional loans in case they become delinquent and also to replenish their vaults so that they continue to lend to new borrowers and maintain their liquidity. banks would sell off loans to investors, earning fees in the process. the borrower would continue to make payments but these would be made to the new owners of the loan. banks used a host of methods to turn loans over quickly, and creating off-balance-sheet entities “special purpose vehicles” or “special purpose entities” was one of them. the entities created typically issued commercial debt (sold small parcels of the loan portfolio to investors, often other banks including investment banks called bonds) to fund the purchase. as the credit crisis peaked, however, it became clear to investors and depositors that banks were in fact exposed to losses from loans they had technically sold to off-balance-sheet entities. in many cases, for example, banks agreed to guarantee the performance of the sold loans (credit derivatives), which means they would be forced to repurchase bad loans if too much of the debt they had sold ended up in default. the extent of this off-balance-sheet trading meant that investors found it difficult to assess how much off-balance-sheet risk each large bank was exposed to which is why bank shares have tumbled as investors shy away from buying their shares for fear of how much exposure they have to these 3 see harvard business school case study on the acquisition of household insurance by hsbc 2004. the denning law journal 97 toxic assets. these concerns about the risk of investing in banks has also affected the extent to which banks are willing to lend to each other as they fear further insolvencies or forced acquisitions by governments. northern rock provides a good example of the impact which banks unwillingness to lend can have on the market. northern rock’s model for doing business was to borrow money from other banks in order to lend money to people who wanted to buy houses. when funds began to dry up they ceased to be able to borrow money on the market. as a result they ceased to be able to lend money and so if unable to lend were no longer able to make any profit. this caused the first run on a bank in england for many years and led directly to the government having to guarantee all savings held in the bank and eventually having to nationalise them. we saw the same thing happen in the usa with bear sterns, an investment bank. bear sterns bought bonds relating to sub-prime mortgages and as soon as the sub-prime market began to disintegrate so did their investment in the bonds – leaving them insolvent and ultimately nationalised. liquidity problems so as the loans began to fail and the securitisations of those loans began to become worthless and banks were unable to judge which banks were safe to lend money to because so much of the risk was held off balance sheet they stopped lending to each other. liquidity dried up because instead of lending their spare cash at the end of the working day to other banks they held on to it. short selling the final piece of the jigsaw which caused the melt down in the global economy was caused by short selling by the hedge funds. how does short selling work? typically a hedge fund will borrow shares from institutional investors, for example, pension funds, which own large holdings of shares in quality quoted companies. the hedge fund will pay the institutional investor a fee for borrowing their shares and will then sell those shares in such quantities that the value of those shares on the stock market is affected – usually large sales of quoted shares will cause the value to fall and once the value has fallen to a predetermined level the hedge fund will buy back those shares returning them to the institutional investor and pocketing the profit on the sale and purchase back less the fee to the owners. their profit is the difference between the sale and purchase price. in this way hedge funds are often said to make money out of manipulating the market by trading shares. in recent months there have also been allegations that they manipulate the market with rumour and innuendo. it is alleged that it was due to such rumours that lehman brothers, the 200 year old investment bank was brought down. a rumour was the changing face of the city 98 spread that they were vulnerable because they held huge numbers of “credit derivatives”. a “credit derivative” is similar in form to an insurance contract. suppose for example, that a bank has made a huge number of student loans and is concerned that there are going to be a significant number of defaults. the bank will find a third party investor who will agree to cover the risk attached to the loan portfolio for a fixed term interest rate, so say the loan portfolio is worth £1,000,000, the bank might agree to pay 5% annually to ‘guarantee’ its student loan portfolio. in effect this is a bet by the third party insurer that the students will not default on repaying their loan and that the third party will not have to pay out to the bank lender. typically “credit derivatives” are traded as though shares with purchasers taking the risk that the students in our example will pay their student loans back and that therefore they will not have to pay out on any defaults. many banks, and it was alleged lehman brothers in particular, had invested heavily in credit derivatives guaranteeing huge numbers of sub-prime mortgages and given that these loans were now expected to fail were heavily exposed to liabilities on the credit derivatives. although credit derivatives are traded they are not traded on the open market as such – they are traded over the counter – as it is called and it was therefore impossible to be sure how significant their exposure was, or that of any other bank for that matter. it is alleged that the hedge funds merely intended to bring the value of lehman’s shares down – and then by buying them back they would make a financial killing. however, the market took such a fright at lehman’s possible exposure that their shares went into free fall, and unlike bear sterns, the us government did not bail them out. as a result, there was a run on the shares of all investment banks because it was assumed that if lehman brothers were exposed so would be goldman sachs, j.p. morgan, etc. so what we saw was a major run on the shares of investment banks, and a suspension of short selling by the american government for ten days to stop the share prices of investment banks from hitting rock bottom and later we saw the american government having to buy into those banks to shore up confidence in their investment systems. the american government then brought the investment banks in under the regulatory system used for deposit taking banks which have much more stringent regulatory requirements than those which had been applied to investment banks. bonus culture there has been growing distaste at the huge bonuses paid to reward those who, in the hope of making huge returns, take risks that could ultimately bring a bank down. since the crisis began all governments have been working together to try and replace the bonus culture with schemes that reward the denning law journal 99 entrepreneurial spirit but not at the potential cost of destroying the very systems that sustain the economy. interest rates what are the implications for those working in the ‘legal city’? much of the work we do is lending work – for most city based practices at least two thirds of their work is bank related either acting for the banks in making loans or supporting share offerings or acting for companies that need to borrow or raise funds on the equity markets. in the current market, even where there is money available to lend since the interest rates offered are so high few can afford to borrow the money they need to fund their business. why is money so tight at the moment? banks are worried that if they lend they will not get their money back and in order to balance the risk of loss they will only lend at high rates of interest – more than the market can stand. until the current crisis, at the end of each banking day, banks would not want any money left ‘in the safe over night’, and so would lend available money overnight at “libor”. libor is the inter-bank lending rate a point or so above bank rate.4 the displayed screen rates for libor and euribor should, however, even in current market conditions reflect the panel banks’ average costs of wholesale funds. an individual bank might pay a little more or less. libor is important for other reasons too, most commercial loan agreements determine the interest rate for loan by reference to libor (or euribor5) adding a few ‘basis points’ (0,25%) over libor depending on their assessment of the risk, the market and how much they want the business – however, currently, instead of being a few basis points above libor – huge rates are being quoted and few businesses are willing to borrow at these rates as business models (which work out rates of return and profit from financings) do not work. so very few businesses want to borrow money at the rates that are prevalent in the market, even assuming they can find a bank that wants to lend them money in the first place. 4 libor is set on the basis of the average lending rate that the banks have charged during the course of that day up until 11am in that morning and 16 banks put in the interest rate they have been charging depending on the term of the loan, and an average is taken and that is libor. most commercial borrowers expect to pay libor plus half a basis point. a basis point is 0.25%, so it is a little margin over the libor rate, making it worth their while to lend. 5 the bba libor screen rate and the eu banking federation euribor screen rate. the changing face of the city 100 the lack of money available to business is one of the major issues in the current economic crisis, with most governments seeking ways to encourage the banks to start lending again, particularly to small businesses and for mortgages to purchase houses at rates which are commercially sensible. since some banks can no longer borrow in the market at libor, they are looking at their existing loan portfolios and seeing rates that were agreed before the crisis at significantly under what it is costing them to borrow from the money market, consequently some of these banks are seeking ways to increase the interest rates paid by their borrowers on loans and using their lawyers to look carefully at the small print of the loan agreements to help them to do this. there are a number of standard provisions found in loan agreements being used for this purpose. i now want to turn to examine a couple of these. “market disruption clauses (mdr)”6 market disruption clauses allow the lender to recover from the borrower the actual cost of borrowing where its actual cost exceeds the reference rate that has been chosen (the libor or euribor reference rate). most loan agreements contain an mdr. it applies (using the loan market association standard as the example) where an interest rate cannot be determined because the normal reference rate chosen by the parties does not work (because no screen rate is available for the relevant currency and interest period, and insufficient members of the agreed reference panel have provided indicative rates to the agent; or even though the interest rate for that period can be determined using the normal reference rate by close of business on the rate fixing day for that period, a lender or lenders holding participations exceeding a specified threshold (which will vary from deal to deal) have notified the agent that the actual cost to them of obtaining matching deposits in the relevant inter-bank market would exceed the normal reference rate. if either of these circumstances applies, the agent or the borrower can trigger a period of negotiation (up to 30 days) to try to agree a substitute rate. any substitute rate requires the consent of every lender in the syndicate. if no substitute rate can be agreed the borrower must pay each lender the rate that that lender 6 a clause in a facility agreement (or certain other debt documentation) which allows the lenders, in certain circumstances, to calculate interest on a different basis to that on which it is normally calculated. usually, the clause is drafted so that it operates if: the relevant interbank rate (such as libor or euribor) cannot be established (from either the rate published on a computer screen by a price source vendor such as reuters or the specified reference banks); or a given percentage of lenders can only obtain matching funding in the interbank market at a rate which is higher than the relevant interbank rate. (plc glossary). http://finance.practicallaw.com/8-200-1386 http://finance.practicallaw.com/2-200-1389 http://finance.practicallaw.com/3-107-6318 http://finance.practicallaw.com/0-203-8992 the denning law journal 101 notifies as being its actual cost of funding its share of the loan from whatever source it might reasonably select. some banks may not be invoking these clauses because it suggests to the market that their liquidity is in doubt as they cannot raise money in the markets at libor. “material adverse change clause (mac)” mac clauses are typically found in the mandate letter for a syndicated loan and provide the mandated lead arrangers (mlas) with a means to renegotiate, or step away from, the underwriting or syndication because there are difficulties in syndicating the deal (gaining participation from a number of banks in making the loan). basel 27 and basel 3 the basel 2 accord aims to harmonise capital adequacy rules for banks internationally. it provides for linkage between the maximum size of a bank’s loan portfolio and its regulatory capital. the idea is to ensure fair competition between banks for deposits and security for investors because we can rely on the fact that banks have enough capital in reserve to cover a significant proportion of their loan portfolio should borrowers default– currently a number of building societies (mutuals) have been downgraded from a risk assessment perspective because they are not able to demonstrate that their capital is adequate to cover the possibility that 40% of their loans might default. some of the banks have very worrying loan to capital ratios, e.g., rbs, hbos with loan to capital ratios in excess of 100%. the amount of regulatory capital that a bank must set aside will vary depending on the risk weighting ascribed to its various loans and this can change during the currency of the loan, for example, because the credit rating of the debtor changes, or the law affecting the enforceability of the security or other contractual arrangements change. basel 3 requires the banks to monitor constantly changes to the risk weighting of their loan portfolio including changes in every jurisdiction in which they do business. in order to ensure that banks comply with the accords, the uk government has taken shares in a number of banks at risk because they have insufficient capital so as to increase the capital that each has. interestingly, most loan agreements contain a provision requiring the lending bank to be in compliance with the capital regulatory framework. in most cases borrowers 7 the international convergence of capital measurement and capital standards, a revised framework – basel committee on banking supervision 2004 – effective january 1 2008 covering much of the developed world. the changing face of the city 102 are not enquiring as to the compliance for fear that the financial system will go into freefall. it is possible, but highly unlikely, that action could be taken to close down banks that do not have the capital adequacy required. impact of the credit crisis on legal work in the city when we are in difficult times like this, generally we see an increase in litigation work because every contract gets fought over. contract law is the most important subject you can study because everything that you do in practice depends upon it. however, we have also seen a decrease in equity capital market work because in situations like investors are unwilling to take risks on buying more shares in a company, so if a company wants to raise capital (rights issues) by putting more shares onto the market it cannot be sure that anyone will want to by them. none of the banks want to guarantee (underwrite) these sales so we see a downturn in rights issues, mergers and acquisitions, initial public offerings, etc. what comes in instead is more work on insolvencies and restructurings, much of the capital markets work – bonds, derivatives etc., has virtually disappeared as these clever financial instruments have taken much of the blame for the current economic situation. property values are down and few clients think that prices have hit rock bottom yet – so property developers are standing back from the market until they believe that property could be on the turn. equally, investments in new major infrastructure projects are reduced as the cost of borrowing to fund them is just too high. in a global economy, we have to start looking at markets elsewhere in the world in the hope that some will not be affected by a downturn: initially at least most believed that the middle east would continue to bubble, but this time, because the crisis is global even the middle east is suffering.. quieter times doing deals for clients often provides time for reflection and creative thinking about new legal products – so we can expect a number of new legal products to be developed particularly around islamic financing, carbon capture, carbon trading, carbon storage. a final word on risk at the start of this lecture i mentioned some research on women and appetite for risk. many commentators on the current crisis have said that it is the excessive risk taking in the city (and markets across the world) that has the denning law journal 103 caused the current turmoil. some interesting research by tilburg university in the netherlands in 20088 shows some interesting results. they took 96 matched pairs of men and woman executives, doing similar jobs in uk listed companies between 1998 and 2004. they found when they compared their pay packages a 19% gap in initial pay, and vast disparities in bonus payments. they then focused on identifying the reasons behind these results. they found a number of stereo-typical assumptions in play whereby top male executives were seen as dynamic risk takers whose actions have a decisive effect on company performance whilst women were seen as being relatively passive and having a low impact on the performance of the company and a weak appetite for risk. in the result – women’s pay was little affected by how well or badly the organisation was doing – whilst men’s pay was heavily impacted; if the company did badly men would be punished for that poor performance and receive no pay increase and no bonus, if the company performed well, they would be hugely rewarded in the pay package they would receive. they gave the example of women getting bonuses of £12,000 a year during their whole term of employment, whilst male bonuses varied between nothing and £100,000. finally, looking back to the causes of the credit crisis does this research provide a moral for the future? do we need more women in key roles in the financial institutions to ensure a safer approach in the financial markets of the future? 8 see http://www.guardian.co.uk/business/2008/sep/14/executivesalaries.women the origins of the credit crisis sub-prime mortgages why wasn’t the sub-prime mortgage fiasco confined to the usa? off–balance sheet liquidity problems short selling bonus culture interest rates “material adverse change clause (mac)” basel 2 and basel 3 impact of the credit crisis on legal work in the city a final word on risk the singapore constitution and its critics the denning law journal 63 the singapore constitution and its critics c l lim* introduction the latest book about governance in singapore1 takes a different tack from recent works in the area; professor ho khai leong’s the politics of policymaking in singapore 2 and, more recently, professor mauzy’s and professor milne’s impressive singapore politics under the people’s action party.3 even should the scholars themselves have rather different views, these latter scholarly works describe the workings of government in singapore through a keen and informed engagement with singapore’s current policies and institutional aspirations. despite claiming close knowledge of the inner workings of government, 4 dr worthington takes, instead, an outsider’s viewpoint from the outset.5 this is surprising enough for a book that seeks to describe the reality of singapore’s governance, but worthington also expects * faculty of law, national university of singapore. i am grateful to a number of people: m hor and g bell discussed some of my views with me; mrs t yee made her lucid analysis of the pointe gourde principle available to me in manuscript form; and a briggs of st edmund hall, oxford university who pointed the way to the petrotimor case. my able student, mr j loy (j d candidate, new york university) also deserves special mention for it was he who spotted quite a few infelicitous expressions and turns of phrase in the final draft and took me to task. the views expressed herein are mine alone, however, and so too are any errors or omissions. 1 r worthington governance in singapore (new york: taylor francis, inc., 2002). dr worthington is the executive director of the philippines australia governance facility in manila and an associate of the asia research centre of murdoch university, perth, western australia. 2 h leong the politics of policy-making in singapore (singapore: oxford university press, 2000). 3 d mauzy and r milne singapore’s politics under the people’s action party (london: routledge, 2002). 4 see n 114 at 259. 5as worthington states: “this is a study of the core executive in the context of the singaporean hegemonic state” at p 3. for his research paradigm/methodological framework, see, generally, chapter 1 ‘governance, singapore and the hegemonic state’. his references to feedback from (anonymous) respondents are a familiar feature in his footnotes. the denning law journal 64 the initiative for the reforms which he recommends to be taken specifically by singapore’s ruling political party.6 there is also much discussion of individual personalities, but this is sought to be justified by an academic need to supplement an underlying thesis of political hegemony with an empirical study of policy and personal networks in singapore.7 what could have otherwise been highly valuable is worthington’s attention to singapore’s legal institutions and practices, including an entire chapter on the judiciary.8 an earlier version of this chapter had previously been published 6 worthington, above n 1, see pp 245, 249-250. 7 worthington, above n 1. 8 worthington, above n 1 at 288. as he puts it: “nowhere in the singaporean literature do we find the judiciary within the core executive”. the other substantive chapters include a study of the relationship between the executive and the legislature, and studies of the singapore civil service, and government intervention in the market. while the first is also relevant to readers from a public law viewpoint, there is hardly anything new there, and i have chosen to forego discussing it in any detail for the most part. in general terms, however, worthington’s study draws from professor a harding’s insights about the ultimately westminster character or style of the singapore constitutional system (at pp 12-14), prizing de facto legislative supremacy and the practice of cabinet government with its attendant implications for the executivelegislative relationship; a harding ‘parliament and the grundnorm in singapore’ (1983) 25 malaya law review 351. the perspective taken is itself relatively uncontroversial and is widely recognised in singapore constitutional law scholarship today; see the discussion in k tan ‘the evolution of singapore’s modern constitution: developments from 1946 to the present day’ (1989) 1 singapore academy of law journal 1, at 17-23; t li-ann, ‘the elected president and the legal control of government’ in k tan and l peng er (ed), managing political change in singapore: the elected presidency (london: routledge, 1997) 100, n 12 below at 136-137; v winslow ‘the election of a president in a parliamentary system’, in tan and lam, ibid, 88, at 88-91; and t li-ann, ‘recent constitutional developments: of shadows and whips, race, rifts and rights, terror and tudungs, women and wrongs’ [2002] singapore journal of legal studies 328, at 330. this is then coupled with worthington’s more general methodological pre-occupation which is also dependent on insights provided by studies in the 1970s of the role of elites in the singapore polity in the pioneering works of c chee and p chen, see c chee, ‘politics in an administrative state: where has the politics gone?’ in s meow (ed), trends in singapore (singapore: iseas/singapore university press, 1975) and p chen ‘the power elite in singapore’ in p chen and h evers (ed), studies in asean sociology (singapore: chopmen, 1978), 73. in large part, as thio’s 2002 critical study shows, the constitutional debate in singapore has moved further afield compared with the issues the denning law journal 65 as a law review article.9 in it, worthington contests the findings of the world competitiveness report, which has consistently ranked singapore’s legal system at, or very near, the top of the pile globally. according to dr worthington, “this survey, based on rankings by private sector executives, almost all of whom do not live in singapore and have no interest or genuine knowledge of the political system, only genuinely reflects the accumulated ignorance of the respondents rather than any genuine knowledge of the singaporean legal system”. 10 elsewhere, he says that he has it on good authority that another scholar who has written widely on policy-making in singapore simply does not have the kind of access to singapore’s government decision-makers that he has.11 worthington, on the other hand, claims a twentyyear scholarly interest in the governance of singapore, a stint with the institute of southeast asian studies, and, in his own prefatory words, personal status as a “a critical friend” of singapore.12 what worthington claims about judicial dynamics in singapore and the separation of constitutional powers and functions between the executive and the legislature in light of singapore’s westminster-style system of government go towards some important and long-standing questions concerning the nature of singapore’s “living” constitution. in this, his critique presents an opportunity to set the record straight in respect of some long-standing criticisms of the which dr worthington’s book deals with and the reforms he proposes. see also, for the debate about the future of the relationship between the state and civil society, s tay, “’the future of civil society. what next?’ in d de cunha (ed), singapore in the new millenium: challenges facing the city-state (singapore: iseas, 2002), 69, and s.c. tay, ‘island in the world: globalization and singapore’s transformation’ in southeast asian affairs 2001 (singapore: iseas, 2002), 279, at 287-292. in respect of the other chapters, there is arguably little that is startlingly new either. on the role of the government in the marketplace, see s haggard and l low, ‘state, politics and business in singapore’ in e gomez political business in east asia (london: routledge, 2002), 301. as for worthington’s chapter on the civil service, see also ho, see n 2. i have already noted the importance of mauzy’s and milne’s latest work, see n 1. 9 r worthington ‘between hermes and themis: an empirical study of the judiciary in singapore’ (2001) 28 journal of law & society 490. 10 see n 107. 11 see n 114 at 259. 12 see n 8. the denning law journal 66 singapore constitution whose importance go well beyond the publication of worthington’s book. different strokes for different folks worthington, in common with singapore’s critics, rests his argument on a number of notions characteristic of standard rule of law thinking, but given flesh by a number of associated ideals and comparative practice inherited elsewhere. amongst these are the political independence of the judiciary, and dicey’s view 13 that the rule of law means, amongst other things, that the “ordinary law of the land” will be applied by the “ordinary courts of the land”, and not by special tribunals or what worthington calls “para-judicial structures”. however, to provide more concrete expression to these ideals, worthington also weaves certain inherited practices into these. examples include the fierce independence of the english bar, and what permanent judicial tenure means, according to him anyway, in other jurisdictions. he also tends to hold these ideals higher than what our actual experience of comparative institutional arrangements elsewhere would truly suggest. admittedly, i found it difficult to see what he is getting at with his discussion of judicial appointment and tenure in singapore. we know the constitutional rules on this, the corresponding practice here in singapore, and who the decision-makers are, in institutional terms, in respect of judicial appointment and tenure. yet i cannot see any basis for his criticisms if we take, for example, the united kingdom or the united states as benchmarks. 14 however, his claims are not simply theoretical, by which i mean the construction of some sort of abstract argument as to why we should hold the ideal of judicial tenure higher than what our actual experience tells us. he goes on, instead, to pick and choose amongst comparative legal traditions, 13 a dicey introduction to the study of the law of the constitution (indianapolis: liberty fund, 1982) at 110, and 114-115, in particular. 14 see n 1 at 106. worthington remarks on the constitutional provisions, followed by the remark that “tenure in the subordinate courts is even more precarious” (my emphasis). to offer another example of this sort of underlying methodological flaw, worthington cites section 27 of the government proceedings act (cap 121) which ‘prohibits a court from granting an injunction against the government’. yet he fails to tell us how this is any different from the equivalent provision in england, representing the position at common-law, namely, section 21 of the crown proceedings act 1947; see n 91 at 302. the denning law journal 67 demonstrating, for example, a strong preference for judicial appointments from an independent practising bar. while he acknowledges that detractions from practices in other jurisdictions may be justified, this is to be considered so only where a rule of law culture in the sense which he approves of is also present (i.e. not in singapore).15 this, in substance, is the basis for his criticism of the discontinuance of appeals to the privy council as an executive gambit, 16 a criticism that has been widely heard elsewhere. worthington cites professor andrew phang on the same page, but neglects to mention that it was phang who had argued, convincingly, against appeals to the privy council some years before the judicial committee (repeal) act of 1994. 17 in this, he ignores the fact that the english courts had themselves struggled for decades with achieving the right balance in respect of the workings of the doctrine of precedent in english law. for the highest singapore court then to be bound both by itself and by a tribunal sitting thousands of miles away would strike most people as being somewhat ludicrous today. 18 to 15 see n 1 at 111 (worthington’s comments in respect of the pennsylvania judicial system). 16 see n 1 at 119. 17a phang, vrajah and k tan ‘the case for a re-appraisal and restatement of the doctrine of stare decisis in singapore – an overview’ (1990) 6 law society’s journal 22. see also a phang, v rajah and k tan ‘the case for a re-appraisal and restatement of the doctrine of stare decisis in singapore’ (1990) 2 malayan law journal lxxxi, xcvii and cxiii (in three parts). the argument had been made even earlier than that, see h meng ‘the privy council as court of last resort in singapore and malaysia: 1957-1983’ in a harding (ed), the common law in singapore and malaysia: a volume of essays marking the 25th anniversary of the malaya law review (singapore: butterworths, 1985), 75 at 113-114. 18 it was not until the abolition of all appeals to the privy council in 1994 that the court of appeal in singapore adopted the sensible approach of england’s house of lords since 1966, which after thirty years of judicial criticism in england finally departed from a rigid english common-law rule that had its origins in the middle of the nineteenth century. namely, that it would be advantageous for the highest court in the land to have the power to depart from its own previous decisions; see practice statement (judicial precedent) of the court of appeal [1994] 2 slr 689; compare (the english) practice statement [1966] 1 wlr 1234. for judicial criticism in england of the practice of the house of lords prior to 1966, see lord wright ‘precedent’ [1944] cambridge law journal 118; lord reid’s speech in midland silicones ltd v scruttons ltd [1962] ac 446 (hl) per lord reid at 475, lord denning’s romanes lecture of 1959 ‘from precedent to precedent’ which is quoted in lord denning the discipline of the denning law journal 68 compound that by saying that while new zealand and australia may be justified in doing the same, but that singapore would not, is therefore also curious, yet worthington sees nothing wrong with putting down the argument in print. 19 to some, the argument would, unfortunately, be virtually indistinguishable from a self-serving argument widely-heard before events were overtaken by the united nations decolonisation process. i cannot help but think, in respect of what ali mazrui has termed a “pigmentational” theory selfdetermination, that worthington’s stance amounts ultimately to saying (if i might put it bluntly) that the natives would simply require tutelage over an extended period, and therefore cannot be trusted with their immediate and unconditional liberty. it seems that no difference may otherwise be drawn between the reasons that would commend themselves in respect of the abolition law (london: butterworths tolley, 1979), at 291 et seq. previously, the court of appeal in singapore was bound, generally, to observe its previous decisions with limited exceptions under the rule in young v bristol aeroplane ltd [1944] kb 718, ca as well as those of the judicial committee; the speech of wee chong j in mah kah yew v public prosecutor [1971] 1 mlj 1. while in england there had also been vigorous judicial debate in a spirited campaign led by lord denning with respect to whether even the english court of appeal ought to be bound to the rule in young v bristol after the practice statement of 1966, and this had led to a series of spectacular decisions, prior to the judicial committee (repeal) act, act 2/94. nevertheless, singapore, amazingly, had no highest court of its own. that this could have persisted into the 1990s is something quite remarkable in itself, considering that the singapore legal system’s closest counterpart in many ways, that of malaysia, had earlier abolished recourse to the privy council. little wonder then that law teachers here at the national university of singapore had counselled discontinuance of recourse to the privy council years before parliament acted. yet now we have dr worthington telling us, years later, that the reason for that legislative move was somehow political, as if there were not somehow good enough reason for all to see. well, legislative reform is political. if we are then talking about the stronger sense of the word “political”, i would argue that abolition was, if anything, delayed by pragmatic political considerations, as well as considerations of expediency, having to do, one would have thought, with singapore’s precarious beginnings, it’s troubled early history, and the passage of time required to ensure investor confidence during the earlier years, see, for example, the speech of the then prime minister in singapore parliamentary debates, official record, march 15 1967, cols 1294-1295. 19 see n 1 at 116-117. the denning law journal 69 of continued recourse to the privy council in new zealand’s or australia’s case, and the (same) reasons for doing so in singapore. he says this:20 “the abolition of appeals to a non-singaporean tribunal is, in itself, no cause for concern; new zealand acted in 1996 to do likewise, as has australia. the principal concern is that the indigenous judicial system be sufficiently mature to defend the rule of law, maintain the independence of the judiciary and, at the most basic level, be able to provide balance in the exercise of state power over citizens.” if in australia and new zealand the courts there would always decide as the privy council would, then abolishing recourse to the privy council would, presumably, be superfluous. yet even here, matters are not reflected in the singularity of dr worthington’s logic. the situation faced by singapore was described thus in 1985:21 “… the privy council has continued to exercise a very significant amount of influence on legal development in singapore and malaysia even after independence. high reversal rates (insofar as reversal indicates legal development in a direction against the will of the local appellate court) are but one index of the reality of this influence. and, even when the privy council dismissed an appeal, it could still make law in the process…as for the great bulk of cases which did go to the privy council, the doctrine of stare decisis ensured that in dispensing justice local courts applied the law as expounded by the privy council…in the last ten years the number of privy 20 see n 1 at 116-117 (footnotes in the original omitted). to my knowledge, however, the privy council issue, in the form of the supreme court bill, is still being debated in new zealand; the national government having decided to retain appeals to the privy council in 1997. the right of appeal to the privy council from australia was effectively abolished by the australian privy council (limitation of appeals) act of 1968 and the privy council (appeals from the high court) act of 1975 in the case of the commonwealth courts, and by the australia act of 1986 in respect of the state courts. 21 chan see n 17 at 112-114. the denning law journal 70 council appeals has been on the rise. privy council appeals will soon be history in malaysia, but for singapore, this trend is likely to continue. a dilation in the volume of appeals will present the privy council with even more opportunities to shape legal development in singapore…for malaysia, the final extinction of privy council appeals and the assumption of full judicial sovereignty is an expression of malaysian nationalism…for singapore, to borrow the words of lord normand, “the continuance of the appeal or its abolition…is a question of convenience and not one of fundamental importance”… perhaps the malaysian abolition presents an appropriate occasion for singapore to re-examine her reasons for retaining privy council appeals.” much in the same vein, worthington also criticises the institutionalisation, in singapore, of arbitration and other means of alternative dispute resolution. the underlying policy here, it would have been thought, is that this is precisely what a modern mercantile society such as singapore’s would be ideally suited towards. dr worthington, however, sees a conspiracy. he says that that alternative means of dispute resolution in singapore are just another way of shielding the judiciary from criticism.22 yet he does not tell us why he thinks so, and we cannot therefore engage him here. his point, however, is a general one, which is that, all-in-all, a strong measure of discretion is not a part of the singapore judicial landscape, and we can perhaps say something about this. on tenure and judicial independence his criticisms are put across most clearly in respect of judicial tenure. for some, that singapore has judges who are past retirement age does not automatically mean, for example, that singapore’s judiciary thereby lacks independence, unless one is already inclined to believe that anyway. the classic choice in superior court appointments is that between having a retirement age at all, and not having one. dr worthington disagrees, and his argument is threefold. first, judicial appointments at superior court level still rely too heavily on the singapore legal service, which, being part of the civil service is 22 see n 1 at 119. the denning law journal 71 therefore to be considered a part of the executive. 23 secondly, singapore’s court of appeal judges are, as a matter of deliberated policy, well into their seventies, and other supreme court judges in their sixties, and because of this, they are past retirement age, which makes them thereby dependent on the executive for continuing in these judicial positions.24 his third point is that the first two are intentionally corrosive of the independence of singapore’s court of appeal.25 we are all certainly familiar with the theory underlying these arguments; namely, that we should not countenance the absence of permanent judicial tenure under any circumstances. true, singapore has not been absolutist in adhering to hamilton here, and has sometimes kept judges on the bench despite having a retirement age. it is a great leap, however, to suggest that this amounts to an intentional corrosion of judicial independence, and ignores a further aspect of hamilton’s argument, which is that “there can be but few men in society, who will have sufficient skill in the laws to qualify them for the stations of judges.”26 or indeed, that the judiciary in singapore is consequently lacking in independence. compare a recent court of appeal decision on the land acquisition act (cap 152). the act goes to the heart of a long-held land-use policy in landscarce singapore. the case resulted in a split judgment (two to one) in favour of the government, and it says something of dr worthington’s thesis. in ng boo tan, 27 the dissenting judge (the honourable chao hick tin j.a.) was formerly a widely respected officer in the career legal service, is far from being in his sixties even now let alone in 1998 (dr worthington’s cut-off date for his study). what then of the chief justice’s majority opinion in that case? the chief justice of singapore is, after all, the only judge on the bench of singapore’s highest appellate court who is over the age of retirement, a state of affairs wholly opposed to hamiltonian logic. admittedly, there is a widespread and accurate general perception that the incumbent chief justice has a distinctive 23 see n 1 at 109. 24 see n 1 at 110. 25 see n 1 at 110. 26 a hamilton the federalist no. 78 (connecticut: wesleyan university press, jacob e. cooke ed 1961), 521. 27 re no 2091d upper paya lebar road elling court, ng boo tan v collector of inland revenue [2002] 4 slr 495. see t yee ‘is there any pointe?’ [2003] singapore journal of legal studies 262. the denning law journal 72 judicial turn of mind, but this is not to say, however, that it is not also an independent judicial turn of mind. the truth is that hamilton advanced two principles, not one. the first principle is that judges should have permanent tenure, and this suggests that a nation should choose either to retire its judges if past retirement age, or to retire the stipulation itself of a retirement age. a second principle, however, which worthington neglects, was that we should also have the best people. what is to occur then in case of conflict between the two hamiltonian principles? we do not know. in singapore’s case, the aim has been to have “the best people” and a retirement age, and if need be, to stick to having “the best people” despite their age. the attorney-general’s constitutional role this brings me to a particular danger of post-colonial empirical sociological analyses of this sort; namely, a propensity to ignore the fact that indigenous legal phenomena cannot be fully understood in isolation from the indigenous legal concepts in play. the governing legal concepts circumscribe and define the meaning of such legal phenomena. notions such as that of a “core executive”, or “hegemony”, and so on are sociological concepts after all.28 in some circles in legal-sociological analysis today, it is assumed that you can actually explain the law better by applying purely extraneous, non-legal, concepts to its study.29 a small example can be offered here. a police practice 28 at the most basic level, the issue is that of whether we can better understand what it means to have law and legal institutions by speaking from within the terms of the law and from within the boundaries of the meaning of our legal concepts, rules, principles, practices and institutions than if we were to jettison the “lawyers’ understanding” in the first place. putting aside the radical leftist pursuit of viewing legal phenomena through the concept of hegemony, i would mention g parry’s seminal work on elites in his political elites (london: allen & unwin, 1969). in it, he discusses the relationship between elites and the demands of democratic society. in the terms used by parry, however, dr worthington’s conception of what it means to study elites would be very much in the radical democratic camp, and ignores the difference between studying elites in a polity, and the very different use of the word to allege elite domination. worthington is concerned only with the latter. in the different parts of this short review, i have tried to show that worthington, however, tends to see elite domination through the simplest things, and his work therefore lacks basic descriptive rigour. 29 h hart the concept of law (oxford: clarendon, 1961) at 120-150. this is the modern version of what hart argued cogently against in his attack of so-called “rulescepticism” (ie that legal rules are, in themselves, meaningless categories). see the denning law journal 73 of interviewing battered women in the company of the spouse or partner may lead to a misleadingly high statistical probability of findings of “no, officer, you must be mistaken, i fell” (ie a record that no crime has been committed, and therefore no further criminal investigation would be warranted). be that so, in the domestic violence example, everyone knows that there has been no criminal either, in the legal sense, if there has been no conviction, which while being the sociologist’s complaint, remains nonetheless the lawyer’s truth.30 yet professor m freeman’s useful introduction for those wholly unacquainted in lloyd’s introduction to jurisprudence (london: sweet & maxwell, 1994), at 537-550. 30 i have selected this example from n walker crime and criminology: a critical introduction (oxford: oxford university press, 1987) at 21. so far as dr worthington is concerned, however, he should simply heed professor cotterell’s warning that “…in confronting legal discourse sociology confronts another enterprise of interpretation whose power (social and political) must be recognized. the sociological study of law is thus, above all, a study of (legal) forms and mechanisms of power and of the power of (legal) ideas in controlling and shaping social life”; see r cotterell law’s community: legal theory in sociological perspective (oxford: clarendon, 1995) at 69). another leading authority who takes the sensible view that the explanatory power of legal situations by legal rules cannot be dismissed in the way worthington seeks to do is professor g teubner (ed) juridification of social spheres: a comparative analysis in the areas of labour, corporate, antitrust and social welfare law (berlin: de gruyter, 1987), and g teubner law as an autopoietic system (oxford: blackwell, 1993) at 109. across the atlantic, professor b tamanaha has this to say: ‘it is time for socio-legal studies to get back to its scientific basics, to get back to impartial and disinterested investigation, to give up the impotent politics and the debunking anti-law attitude’ see b tamanaha realistic socio-legal theory: pragmatism and a social theory of law (oxford: clarendon, 1997) at 254-255. i have gone into these citations for the benefit of those who are not familiar with socio-legal studies, and hope those who are will excuse me. i simply do not want there to be any mistake that what dr worthington has embarked upon is not what socio-legal studies looks like even where we include the more radical (because “rule-sceptical”) strands of thought in the movement; see, for example, r unger ‘the critical legal studies movement’ (1983) 96 harvard law review 563. for those uninitiated, the interdisciplinary extent of some radical scholarship can, however, be startling. the search is for the meaning of our legal terms and institutions elsewhere than within the areas of meaning provided by these terms and institutions themselves. this is perhaps best exemplified in anglo-american legal scholarship in some of the work of the british critical school, of which see, for example, p goodrich languages of law: from logics of memory to nomadic masks (london: weidenfeld & nicholson, 1990) and c douzinas, r warrington and s mcveigh postmodern jurisprudence: the law of text in the texts of law (london: the denning law journal 74 this example remains relatively straightforward. things are less straightforward when we are also comparing legal cultures for much may then depend on a range of substantive evaluations. a good example lies in the attorneygeneral’s role which differs vastly across the various jurisdictions that employ the institution. in singapore, the attorney-general is critically different from the position in the united states or indeed the united kingdom for the role and function of the attorney-general is specified in the singapore constitution. perhaps the most notorious criticism has been of the attorney-general’s opinion in respect of a highly-charged political affair in 1997. this, in my view, has been the subject of much misunderstanding, and provides an excellent casestudy of how the institution has actually fared in the cross-fire of political controversy. the legal question there was whether it would have been an offence under the parliamentary elections act (cap 218) for an “unauthorised person” (amongst others, the prime minister of singapore) to have entered and been present in a polling station. the answer given to that question by the attorney-general was that no offence would have been committed as such, simply because the act, when strictly construed in light of the question, dealt only with activities outside polling stations. dr worthington disagrees: “apparently the alleged miscreants used top secret mindef technology and beamed into the polling stations star trek style, thus not crossing the 200 metre perimeter!”31 however, the legal point at hand, which is plain upon reading the attorney-general’s published opinion and the act in question,32 is that the act makes it an offence to loiter outside a polling station within a radius of 200 metres. there is no ambiguity here. the question put to the attorney-general, however, was not whether anyone was loitering outside the polling station (presumably no-one was). the act does not make it an offence to be present inside a polling station without authority. how one gets there is legally irrelevant for the patently sensible reason that the act aims only to deal with a risk of undue voter influence or harassment outside the polling station, and within 200 metres of the polling station. the rationale for the terms of the act was, moreover, quite clear. unlike the situation inside polling stations, there routledge, 1991). key members of the british school had originated from lancaster university’s law department and thereafter played a crucial role in establishing the law school at london university’s birkbeck college. 31 see n 123. 32 the hon. chan sek keong published in the singapore parliamentary debates, official record, vol 67, 30 july 1997 at cols 1417-1424. the opinion is cited by dr worthington in n 112 at 304. the denning law journal 75 would be no officials and election agents present outside. hence, the act deems there to be no risk within polling stations as such, but only outwith. in the case of persons inside polling stations, the act only says that any person who misconducts himself in the polling station, or fails to obey the lawful orders of the presiding officer may be removed by a police officer under the orders of a presiding officer. in fact, an offence is only committed, but not under the act, if at that point, such a person refuses to leave the polling station, as that person would then be obstructing a public servant in the exercise of his duty, this last being an offence under the penal code (cap 224). it is hard to see which part of all this would therefore give rise to difficulty, aside from the fact that the legal question had an inescapable political dimension due to the fact that it was the prime minister himself, amongst others, who was said to have been present in a polling station on election day.33 33 had worthington simply consulted the singapore parliamentary debates, official record, see n 33 above, for the a-g’s opinion and noted the source cited in n 112 at 304 of his book, he would also have benefited from the explanation, in layperson’s terms, given by the hon minister for law professor s jayakumar at cols 1342-1344 in that same volume. instead, dr worthington cites the parliamentary reports for the subsequent year where he disagrees with the explanation given in response to an opposition question in parliament by the minister of state for law. the minister of state had explained that the a-g is not a member of the executive, see n 115 at 304 and the accompanying text. i shall have something more to say below about dr worthington’s misunderstanding of what art 35 of the constitution of the republic of singapore means. i must also mention here that dr worthington is not alone in his view. aside from the opposition party that had expressed its dissatisfaction with the opinion, my colleague dr t li-ann has been equally critical. according to dr thio: ‘…given the hierarchical stratification of singapore society, it is unlikely that voters within a polling station will be unaffected by so august a personage as the pm and his two dpms. nor can one envisage, without scepticism, bureaucrats serving as election officers telling the pm to leave to prevent voter intimidation’; t li-ann, ‘the right to political participation in singapore: tailor-making a westminster-modelled constitution to fit the imperatives of “asian” democracy’ (2002) 6 singapore journal of international & comparative law 181 at 216. while this is a more sophisticated argument than dr worthington’s, it nonetheless assumes (1) a certain character trait that the ordinary singaporean ought to possess (which would have been a peculiar assumption indeed on the attorney-general’s part in rendering a formal opinion) and (2) that the prime minister and two other distinguished cabinet members had somehow had not been conducting themselves within the meaning of the act (something which no-one suggests). the denning law journal 76 i am compelled to say a little more to further illustrate my point, not only because of the misleading account given of the attorney-general’s role in various other places by dr worthington, but also because that role is also widely misunderstood elsewhere, even by singapore legal scholars.34 under the constitution, the attorney-general is the government’s legal advisor. 35 according to worthington’s reading of the singapore constitution, however, since the relevant provision appears in that part of the constitution dealing with the executive branch, the attorney-general must therefore be a part of the executive branch.36 he thereby fails to convey what, in singapore, is a point of constitutional law of some considerable practical importance that, moreover, has benefited from a good airing in parliamentary debate.37 34 for an experienced singapore scholar who has, likewise, taken the view that the a-g is “technically part of the executive”, see m hor ‘the independence of the criminal justice system in singapore’ [2002] singapore journal of legal studies 497, n 60. in addition to the erroneous interpretation of the constitution which dr worthington offers at 123, see also 106-107, 109, 111, and 113, n 78 at 301, n 105 at 317 and n 83 at 324. he is also grievously wrong in what he says about the subordinate courts act (cap 321) in n 105 at 317. 35 art 35 constitution of the republic of singapore. 36 worthington says: ‘one of the interesting associated outcomes of this conflict was a statement by associate professor h kee during parliamentary debate, rejecting the view that the a-g is a member of the executive, and asserting that this office provides independent advice to the executive, despite the office being created in chapter two of the constitution which establishes the executive’ at 123. 37 see the singapore parliamentary debates, official record, vol 68, 14 january 1998, cols 81-82 (mr l khiang), 86 (ass prof h kee), and 101 (mr j jeyaretnam). mr jeyaretnam’s question was, therefore, probably at cross-purposes with the explanation in parliament given by the minister of state for law. compare also, for what i think is an example of the proposition that ‘the attorney-general is a member of the government’ in a weak architectural sense, singapore parliamentary debates, official record, 29 may 1989, col. 149 (where the issue of prosecutorial discretion arose in a foreign policy context). another misconception from the layperson’s point of view and which also received the benefit of debate during that parliamentary sitting, was the relationship, if any, between a judicial pronouncement and an opinion of the a-g; singapore parliamentary debates, official record, vol 68, 14 january 1998, cols 81-82 (mr l khiang). in addition to the explanation given by the minister of state for law which is discussed below at n 51, the a-g’s opinion is typically given beforehand, but, like a judicial pronouncement, an opinion is, however, distinct from a brief. an opinion is a ‘written document in which an attorney provides his or her understanding of the the denning law journal 77 a distinction is required at the outset between the sense or meaning which dr worthington’s argument suggests when he says that the attorney-general is a part of the executive branch, and the substantive point which he seeks to convey with that interpretation. i view the former proposition to be a proposition in a significantly weaker sense than the latter. what dr worthington seems unaware of is that the two senses of the proposition part company at a critical juncture in his chain of reasoning. while article 35 locates the office of the attorney-general in the executive branch as a matter of constitutional architecture (the “weak sense” of the proposition), the constitution envisages that the attorney-general has certain powers and functions which are wholly at odds with dr worthington’s suggestion that the attorney-general is, in terms of the force or substance of the constitution, a part of the policy-making apparatus (the “strong sense” of the proposition). two features matter in drawing this important legal distinction between the issue of constitutional architecture, which is neutral in substantive legal and constitutional terms, and the stronger sense in which dr worthington means to law as applied to assumed facts’ whereas a brief is a ‘written statement setting out the legal contentions of a party in litigation’ or a ‘document prepared by counsel as the basis for arguing a case’: black’s law dictionary,(st paul minnesota: west, 7th ed, 1999) at 1120 and 186 respectively. likewise, there is almost certainly a conceptual distinction between the case where the a-g renders a formal opinion and where he acts for the government in civil proceedings. i say it is a “conceptual” distinction only as, in practice; the opinion-giving and representational functions should both consist of the same legal viewpoint as a matter of constitutional principle. there could not arise a conflict here inasmuch as the a-g’s advice is plain even if the request for an opinion were to be couched in terms of a request for a legal argument in support of the government. this is illustrated vividly in sir r manningham-buller’s response to a request for legal advice by the foreign secretary during the suez crisis: ‘on what is known to me, i am unable to devise an argument which could purport to justify in international law either our demand that [egypt] who had in no way threatened our nationals should withdraw her forces from a part of her own territory which she is engaged in defending or the threat to occupy her territory by armed forces should she fail to accede to that demand’ quoted in j griffith judicial politics since 1920: a chronicle (oxford: blackwell, 1993), at 72 (my emphasis). as it turned out, the english a-g was thereafter excluded from the usual advisory channels for the remainder of the affair; see l johnman’s fascinating ‘playing the role of cassandra: sir gerald fitzmaurice, senior legal advisor to the foreign office’ in s kelly and a gorst (ed) whitehall and the suez crisis (london: frank cass, 2000) 46. the denning law journal 78 convey the proposition and which is not simply architectural.38 the first has to do with the constitutionally prescribed method for the appointment and terms of tenure of the attorney-general, and the second with certain pragmatic constitutional constraints in the fulfilment of the attorney-general’s functions. in both cases, i shall confine my remarks to the legal advisory role of the attorney-general under the constitution for there is no quarrel in respect of the constitutionally independent position of the public prosecutor.39 we can see from the express constitutional terms governing the appointment of the attorney-general in singapore that, unlike the situation in the united states for example, which some distinguished commentators have confessed is highly unsatisfactory,40 the singapore constitution is not silent in terms of there being any written law on the manner and method of appointment of the attorney-general. against the background of federal-state rivalry in the formation of the united states, it was simply assumed, in the face of such silence in written law, that the attorney-general of the united states would therefore be appointed by the president of the united states with the advice and consent of the senate.41 it is especially noteworthy that the original proposal, in the case of the attorney-general of the united states, was to have been 38 on this question of the different senses of legal propositions and propositions about law more generally, there is no better guide than r dworkin, ‘legal theory and the problem of sense’ in r gavison (ed) issues in contemporary legal philosophy: the influence of h.l.a. hart (oxford: clarendon, 1984). 39 so far as the prosecutorial powers and discretion of the a-g are concerned, clause 8 of art 35 constitution of the republic of singapore is wholly unambiguous: ‘the attorney-general shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence.’ there is no occasion for doubt; contra the discussion in h chase and c ducat edward s. corwin’s the constitution and what it means today (princeton nj: princeton university press, 1978) at 189 and 192. interestingly, the issue that arose in singapore concerning the parliamentary elections act (cap 218) did also concern the a-g’s decision not to prosecute. the events here evidently concerned the public interest, and in this case the government had requested a formal opinion of the a-g and the a-g, in giving that opinion, also consented to its publication (should the government decide upon such publication which the government did, evidently). 40 a dershowitz ‘what is the attorney-general’s job? december 1996 in a dershowitz sexual mccarthyism (new york: basic books, 1998) at 74. 41 n baker conflicting loyalties: law and politics in the attorney general’s office, 1789-1990 (kansas: university press of kansas, 1992) at 48. the position in singapore is, however, governed by clauses 1-3, art 35 constitution of the republic of singapore. the denning law journal 79 appointment by the supreme court. 42 this, according to professor nancy baker, would have made the united states attorney general’s office a quasijudicial office but that original proposal was ultimately rejected. 43 as the method of appointing a united states attorney-general now stands, instead, the rejection of that original proposal “brought the attorney-general solidly into the executive branch” in contrast with the position of state attorneysgeneral.44 the singapore attorney-general’s position is constitutionally different. it has been said in the course of judicial proceedings in singapore to amount to a quasi-judicial office, and to constitute an “essential pillar of” the singapore “judicial system”. 45 as with the judiciary, the attorney-general is granted constitutional protection in respect of security of tenure (until the age of 60) and, therefore, cannot be summarily dismissed.46 the exception to that is if the president concurs with the prime minister’s advice that the attorney-general has become unable to discharge the functions of his office, or has committed himself to misbehaviour, but even then only when a tribunal consisting of the chief justice and two other supreme court justices concurs with the prime minister in giving such advice to the president in the first place.47 similarly, the attorney-general’s terms of tenure are constitutionally safeguarded against undue executive intervention. 48 in this sense, the attorney-general is independent of the executive. 42 ibid at n 47. 43 ibid. professor baker cites c warren ‘new light on the history of the federal judiciary act of 1789’ (1932) 37 harvard law review 49 at 108-109, quoting senator w maclay of pennsylvania. 44 probably because certain senators perceived that the a-g of the united states would thereby become a federal creature and this would ‘draw by degrees all law business into the federal courts’; baker, ibid, at n 48. 45 re gopalan nair [1993] 1 slr 375 (high court, singapore), per chao hick tin j, as he then was. see also the short discussion in k tan and t li-ann (ed) tan, yeo and lee’s constitutional law in malaysia and singapore (singapore: butterworths asia, 2nd ed, 1997) at 405-406. 46 clause 4, art 35 constitution of the republic of singapore. 47 clause 6, art 35 constitution of the republic of singapore. clause 6(b) permits an a-g to remain in office after the age of 60 for a period agreed with the government. this means also that such terms as have been agreed are thereby also granted constitutional protection. 48 clauses 12 and 13, art 35 constitution of the republic of singapore. the denning law journal 80 another sense of the attorney-general’s independence comes to light if we view the matter in functional and pragmatic terms by comparing, say, the existence of the attorney-general and his staff in singapore with the position of any other attorney in the government itself. government is a whole, it is one, but in everyday terms, it is also a whole of parts, a sum total of many. there are many lawyers employed within government itself as a sum total of all its parts. such persons, however, are not all the government’s lawyers, in the strict constitutional sense. the office of the attorney-general fulfils, therefore, the constitutional role that there should be someone, with the emphasis on the singularity of that source, who holds the principal duty to advise the government on legal matters.49 anyone armed only with practical common-sense can see the viewpoint that it would not be conducive to good government should the attorney-general not, and not be able to, stand apart from the various possible and potentially conflicting sources of legal advice which the government could enjoy. it is an inescapable part of the terms of the attorney-general’s constitutional duty to accomplish a certain detachment, therefore, as he could not fulfil his constitutional duties otherwise. even clearer, is the fact that the attorney-general provides an independent source of advice 49 in parliament, the minister of state for law has referred to the a-g as the government’s “chief legal adviser”; singapore parliamentary debates, official record, vol. 68, 14 january 1998, col 86 (associate professor h kee). the significance of this statement is that it reaffirms in clear and public terms that the a-g leads the giving of legal advice to government. the point is brought out more clearly if we compare the case of england where it has been said that the lord chancellor, as opposed to the a-g there, is the chief legal advisor of the government; griffith, see n 37 at 65 (professor griffith goes on to say, however, that ‘although the more objective and technical advice comes from the attorney-general’). the question of legal advisory channels was put severely to the test in the spectacular events connected with the suez crisis, some of which have only come to light relatively recently with the declassification under the thirty-year rule in england of previously unavailable public documents; see griffith, ibid, at 65-78; and also johnman, see n 37. in essence, the british prime minister chose the legal advice of the lord chancellor and the master of university college, oxford as to the legality under international law of a military campaign in the suez in preference to that of the law officers (the a-g and the solicitor-general) and the legal advisor to the foreign and commonwealth office. for a contemporary and concise discussion of the positions taken by a-g in england in their public statements, see also c turpin british government and the constitution (london: butterworths, 4th ed, 1999) at 183184. the denning law journal 81 to the executive branch. 50 in this further and important sense then, the attorney-general is, therefore, not a part of the executive in the strong constitutional sense of the word, meaning that he is not a part of the policymaking apparatus, strictly construed. worthington also ignores the fact that when a formal opinion of the attorney-general is then requested by the government, the resulting opinion is an opinion given in response to the parameters of the original question. it is simply a constitutional duty of the attorney-general to offer his legal advice in respect of those questions formally referred to him by the government. 51 again, the question, and it was the pertinent question in respect of the legal issue raised concerning the parliamentary elections act (cap 218), was whether an offence would be committed under that act were an unauthorised person to enter and be present in a polling station. nor is there any other way to put the question, since both in terms of the language of the statute, and the mischief which the statutory provision seeks to address, this was the right question. it suffices here to say that the first attorney-general took pains to spell out, in the crown suits ordinance of 1876, the equivalence in terms of duties and 50 the minister of state has expressed the government’s view thus in the context of parliamentary debate on the meaning of art 144 of the constitution: ‘as chief legal adviser, ag is asked, from time to time, to advise the government on the legality of proposed executive decisions or actions. his role is to give legal advice objectively. in giving such advice, the ag may have to advise the government on the interpretation of the provisions of a statute. in this case, he had to interpret article 144 of the constitution. his advice…represents his own understanding of the law. he does not have to seek a judicial ruling before tendering advice to the government. like all legal advisers, ag will assess each case on its own merits. like all legal advisers, he will not say that there is a strong case if there is really none. after all, he has to stand by his opinion to the cabinet, and if it becomes public as it has now, then to singaporeans and indeed to others in the world who may care to read it, examine it…’: singapore parliamentary debates, official record, vol 68, 14 january 1998, col 86 (associate professor ho peng kee). in the united states, the issue arose most recently in the constitutional imbroglio pertaining to the investigation of president clinton by independent counsel; see dershowitz, see n 40. 51 clause 7 art 35 constitution of the republic of singapore: ‘it shall be the duty of the attorney-general to advise the government upon such legal matters and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the president or the cabinet and to discharge the functions conferred on him by or under this constitution or any other written law.’ the denning law journal 82 functions of the attorney-general in england at the time, and the attorneygeneral of what was then the straits settlements. this is discussed by another former attorney-general, mr. tan boon teik, in an article published in 1988 in the malayan law journal.52 the article, however, notes that what makes the two different, is that the attorney-general in england is a political appointee, but the attorney-general of singapore is not. here too we should distinguish between the different senses of the notion of “political appointment”. whereas a public appointment would necessarily involve a process which is “political” in a weak sense, this does not always mean that the appointment is a “political appointment” in the stronger sense. the “hegemony” argument “i am saying that the real world depends upon our values (and, again, vice versa)” 53 worthington’s principal criticism has to do with what he sees as the pervasive influence, indeed hegemony, of a singapore power elite. there is nothing new about the “hegemony argument” itself, if i might call it thus, and it is, in fact, a routine feature of recent singapore constitutional writing.54 nor is there any magic involved in talking in terms of “hegemony”, a word originally defined, albeit in a bit of a mouthful, in terms of “the spontaneous consent given by the great mass of the population to the general direction imposed on social life by the dominant fundamental group (i.e. the ruling class)”. it is, after all, simply an old classroom device of the philosophy teacher dressed up in new clothes with the popularisation of the prison notebooks of the italian communist, antonio gramsci, whose words i have just quoted, 55 and which have so captured the imagination of the european literati left. according to this philosophical device, the students are to imagine that they are brains in vats that 52 t teik ‘the attorney-general’ [1988] 2 malayan law journal l viii. 53 h putnam reason, truth and history (cambridge, cambridge university press, 1981) at 135. 54 see thio see n 8. see also chen see n 8 for the origins of this critique in the wider singapore social science literature and which also appears in o hui, t kiong and t ser (ed) understanding singapore society (singapore: times academic press, 1997) as does professor c chee’s ground-breaking 1975 essay. 55 a gramsci selections from the prison notebooks (london: lawrence and wishant, 1971) at 12. the denning law journal 83 are only deliberately given the impression by alien beings that they have a corporeal existence in a physical world. worthington forgets, however, the original lesson contained in this device, which is that one of these philosophy students, as it will be noticed at once, would have to be something other than a brain in a vat to know better, and so the point is to show that the sort of “higher political truth” the notion of hegemony appeals to is, really, a sort of logical fraud. 56 hegemony as a left-tool of criticism presupposes, likewise, that the participants in societal discourse and inter-course do not but should know better. yet in this, the tool assumes a transcendental viewpoint that does not exist, or cannot be established without itself requiring a normative judgment imposed from the outside. it is this value imposition from outwith that amounts to a metaphysical fraud.57 putting the hegemony argument to sociological (mis)use worthington’s hegemony argument forms the principal basis for a number of wider observations about singapore law. it accounts for a second type of methodological failure, in addition to a first kind which i discussed in part iv 56 see putnam, see n 54, at 1-21 and 130-135. putnam goes on to show that the point in the example holds even where a vast number of persons hold the view that the example actually represents reality. as he puts it: ‘…imagine that this crazy (and i would claim, incoherent) theory, the theory that we were all brains in a vat, is held not by an isolated lunatic, but by virtually all the people in a large country, say australia. imagine that in australia only a small minority of people believe what we do and the great majority believe that we are brains in a vat’ (putnam, ibid, at 131). then professor putnam poses the problem here ‘the first thing i want to observe about the hypothetical australians is that their world view is crazy…i think we would regard a community of human beings who held so insane a world view with great sadness. the australians would be regarded as crazy in the sense of having sick minds; and the characterization of their minds as sick is an ethical one, or verges on the ethical. but how other than by calling them names, could one argue with the australians?’ (putnam, ibid at 132). putnam argues that we would ultimately be arguing about what our values are (putnam, ibid at 135). 57 the singapore press, in its enthusiastic review of dr worthington’s book, took instead a slightly different tack: ‘his analysis contributes a critical voice to the perennial debate on whether the singapore system, while highly effective in some ways, is too concentrated in the hands of a small, self-perpetuating elite’ says the straits times, 26 april 2003. the denning law journal 84 above. that first failure is conceptual. its cause lies in ignoring formal-legal explanations of the meaning of certain social facts. these social facts, i have argued, cannot be explained in isolation from the legal concepts that infuse and circumscribe their social meaning. the constitutional position of the attorneygeneral cannot, for example, be described, or criticised, without accounting for what the constitution actually says about the attorney-general’s position because the attorney-general is bound by the constitution. the second form of failure is unlike the first. it is, instead, an empirical failure. the failure involves getting social facts plain wrong because the ordinary (as opposed to legal) social meaning of such facts is misunderstood. some of worthington’s conclusions, particularly those that have to do with the relationship between the core executive and the legislature, fail in precisely this way. for example, a previous era in which law school teachers were called upon to fill administrative, and also political, positions has led some of singapore’s most able legal theorists into public service on secondment. that they would retain their faculty positions is something that is in the very nature of a secondment, but this does not mean that they thereby do so in their administrative or political capacity. worthington, however, seems to go down the road of saying that if x belongs to groups a and b, and y belongs to groups b and c, then x also belongs to group c, or y also belongs to group a, or that groups a and c must of necessity have something to do with each other, or some such thing. these suggestions are simply illogical on these terms, but if the point aims to go beyond logic, we should at least require some evidence of why someone should think that academic freedom has been compromised. in the same vein, the reason the singapore law review is “overseen by a board which is controlled by the law faculty of the nus and the judiciary” (notice how the point is put) would hardly raise eyebrows anywhere else,58 for the very simple reason that it is a student law review. law journals generally do have judges on their advisory boards, but, again, this would hardly raise an eyebrow anywhere else, nor should it. likewise, the previous dean of this law school has been a leading government backbencher for years, so one is left wondering about what worthington had in mind with his revelation in a footnote in the book that the honourable (pap) member for sembawang grc is “probably a pap cadre”.59 58 see n 31 at 279. 59 ibid. in any event, i had just about given up on dr worthington’s study by the time i came upon his persistent confusion of my faculty colleague, professor v winslow, for the denning law journal 85 something is therefore not quite right here in the sense that all these points, which really are intended to say something real, important and interesting about the politics of legal knowledge in singapore, even something profound about how singapore law chooses to view itself, are somehow reduced, by way of that old chestnut of gramsci’s to speculation and titillation instead. form and function in post-colonial anthropology “…those who refuse to accept the rules, out of weakness or crudeness are excluded” 60 there is a deeper explanation of where worthington’s social-scientific methodology goes astray and it contains wider lessons for comparative constitutional discourse. the legal-conceptual and empirical failures i have described in parts iv and vi lie in the fact that the methodological insights of post-colonial legal anthropology have somehow been ignored. it is simply insufficient to make up theories whose terms and categories are defined in such a way that they cannot be falsified by the facts on the ground, viewed from an indigenous perspective. the late professor antony allott of the school of oriental and african studies taught an entire generation of field anthropologists working in the post-colonial era that rigorous empirical work is also about how certain governing ideas perform certain functions, and not what form these governing ideas take (or, fail to take, according to worthington’s armchair descriptive sociology.61 equally, and with respect to so much critical singapore my colleague’s late father in several repetitive and pointless footnotes before he then speculates aloud as to why his findings make no sense here, see n 142 at 307. thankfully, this line of enquiry was omitted in the article in the journal of law and society. 60 j lyotard the postmodern condition: a report on knowledge (manchester: manchester university press, 1984) at 28 citing v goldschmidt les dialogues de platon (paris: presses universitaires de france, 1947). the discussion in lyotard is of plato’s dialogues and of the claims to truth therein, whereas, alas, the platonic dialogues have been portrayed to the world beforehand in the manner of a scientific discussion. 61 the late professor allott’s criticisms of professor hart’s descriptive sociology are highly instructive on this point; see a allott, the limits of law (london: butterworths, 1980), at 51-54. simply put, if you take a whole bunch of abstract legal concepts and the denning law journal 86 scholarship, 62 the notion of hegemony is simply not well suited towards an analysis of singapore’s legal institutions. the need to locate the processes of power in large post-industrialised societies may well require supreme abstractions so as to accomplish the task, but where this may be warranted where the society is large, highly differentiated and complex, in the case of a society the size of singapore’s such high-powered intellectual gadgets smack, instead, of a kind of methodological over-reaction at best.63 allott’s point was that simply because a particular (tribal) culture may not evince the same sorts of legal institutions as those found in some modern industrialised societies does not mean that the former is lawless or primitive. in any case, you don’t take the experiences of one culture and the legal institutions thrown up by that experience and translocate these lock, stock and barrel so as to hold another culture to judgment.64 i need only quote denning on this in nyali ltd v attorney-general, concerning the then british east african territory of kenya: 65 “the next proviso provides, however, that the common law is to apply ‘subject to such qualifications as local circumstances render necessary’. this wise provision should i think, be liberally construed. it is a recognition that the common law cannot be applied in a foreign land without considerable qualification.” even worse are double-standards. for example, it is the usual international law practice today to seek the opinion of foreign counsel abroad when a point of foreign law arises. worthington dismisses instead the idea that singapore seek to translate them into various other languages, it would not take you very long to find out that there will be many of these abstract ideas conceived in their original language that would fail to convey their point at all in another language. this was coming from someone with forty years of field anthropological experience. 62 in singapore public law scholarship, see thio see n 8, where the concept is also put to use. 63 dr worthington himself acknowledges that the model he adopts is not that of dunleavy’s and rhodes’ “large, modern nation state”, see n 19. see further p dunleavy and r rhodes ‘core executive studies in britain’ (1990) 68 public administration 3. 64 allott see n 61, especially at 112-113, for the expression of this sentiment. 65 [1956] 1 qb 1 at 16 per denning lj. see allott see n 61 at 109 et seq for a discussion of some of the problems posed by the translocation of laws. the denning law journal 87 lawyers are best qualified to interpret singapore law. he says that such a notion is “intellectually arrogant” and demonstrates “a lack of genuine international experience”.66 i only mention this because it is a criticism that is widely heard elsewhere amongst those who consider the singapore legal system defective in a fundamental sense. there are other examples of how different systems will adopt different means to address common issues. singapore has chosen to try and have a highly skilled legal service which, being a scarce resource, may also be drawn upon to operate a subordinate judiciary. yet this does not mean that what is sought is simply “efficiency”. it would have (and is intended to have) an obvious impact on the quality of the delivery of justice. that such a system would thereby produce murder convictions sooner rather than later, however, is a logical consequence of a criminal justice system that supports the death penalty still. be that so, it does not make the criminal justice system an “efficient state killing machine,”67 unless the debate is really about the death 66 see n 122 at 305 67 see n 114. as for the subordinate courts, dr worthington is again mistaken in thinking that subordinate court judges are answerable (only) to the a-g and that the ag is a member of the government of the day. i have already discussed the latter misconception. as for the former, subordinate court judges are accountable to the legal service commission, which exists under art 111 constitution of the republic of singapore. in essence, the independence of the subordinate judiciary “piggy-backs” on the constitutionally safeguarded position of the members of the legal service commission. theirs is thereby a “derivative independence” in that sense. the chief justice sits as president of the commission. the other members of the commission are the a-g the chairman of the public service commission (who is also the chairman of the commission), another supreme court justice appointed by the chief justice and up to two other members of the public service commission appointed by the chairman of the public service commission, in that order. what is important is that they all have their independence safeguarded by provisions in the constitution, and in the case of the justices of the supreme court and the a-g, there is a high degree of formal independence, more so than in the case of the chairman and two members of the public service commission; see hor see n 34 at 505. the key issue as hor puts it is: ‘it is not at all clear how much further institutional protection of independence can go. if indeed the commission transferred the judge out of the improper motive of appeasing the executive, what was problematic was not so much independence of the subordinate judiciary from the executive but independence from the superior judiciary and the attorney-general’, however ‘if the subordinate judiciary is not to be subject to the superior judiciary, then it is not obvious to whom it should be subject to.’ my the denning law journal 88 penalty (which singapore continues to impose), but it is not. these aspects of the legal system and the development of efficacious alternative means for the resolution of commercial and financial disputes is, at the end of it all, what studies like the world competitiveness report are really about. i do not mean to deny the role of an over-arching, comprehensive critique of singapore’s “living” constitution, but only to argue that a sound theory about the singapore constitution must, first, precede such a critique. such a theory may yet find expression in the language of contemporary anglo-american jurisprudential debate, even if there are articles of faith dear to the angloamerican tradition which may have been modified or even lost in the course of the development of an indigenous singapore system. the former dean of the yale law school has in recent years been arguing for something that does, for example, have some relevance towards an understanding of what is going on here in singapore. according to dean kronman, legal training and practice consist of the cultivation of a “lawyer-statesman ideal”. he defines this as the need to view legal education and practice as a way of cultivating practical wisdom in handling the tangled skein of human affairs, unlike the current dominant viewpoint that the “correct” legal theory and legal-institutional architecture and institutions would both be necessary and adequate for the purposes of modern industrialised societies, an assumption shared by dr worthington. while dean kronman laments the erosion of this ideal today, not least in the way the law is taught in american law schools, that ideal (perhaps ironically, in more ways than one) continues to claim its rightful place in the classroom and courtrooms in singapore. neither the law and economics movement, nor any other law and social science or law and policy mindset may be said to prevail in our schools, courtrooms or law firms. most lawyers here, and i would have thought elsewhere too, accept that the plainest constitutional terms can be made to mean whatever is sought to be attributed to them in light of particular circumstances and opportunities, with a little legal skill and firm possession of decision-making power. in legal practice, this may best be exemplified in countries where difficulty in getting the constitution changed has forced case-law interpretation to depart radically from the ordinary meaning of discussion of judicial independence will, therefore, be confined to the superior judiciary. the denning law journal 89 the plain terms of the constitutional text.68 we also have a particularly acute appreciation of the issue as anglo-american jurisprudence begins to grow out of the dizzy years of critical legal scholarship. the singapore lawyer-statesman ideal, if i might term it thus, recognises, however, this singular practical quality of judicial power; what professor dworkin has termed the “force of law” itself, as distinguished from theories of its moral-political justification. dworkin thinks the aspect of moral-political justification is what jurisprudence is about, and that judging is also a way of “doing jurisprudence”, in the same way that jurisprudence, properly construed, must thereby be interested in the production of adjudicatory theories. 69 in the case of singapore, if we take judicial appointment as a test, the criteria for that are no different from those of any key public office, where practical judgment (what kronman calls “character”) is seen to matter just as much, if not much more, in public decision-making than getting “the right” abstract theories and ideals going about the law and legalinstitutional architecture.70 concomitantly, the dominant thinking here is less concerned with adjudicative theories, deconstructive theories, and prescriptive theories of the law and legal-institutions. it is against this precise background and context that scarce judicial talent is seen to require those past retirement age to continue to remain on the bench. experience has shown, even in the very 68 there are many theories that seek to capture what legal interpretation must mean in light of this, where debate centres around those who propound ever new and more innovative arguments for favouring adherence to some real or reconstructed original intent of the drafters to those who argue for judicial activism and those who seek only to describe and explain both what has gone on before and how judges should continue to proceed in terms of some overarching theory of the adjudicative function. the most popularly known example of such theories today is probably professor r dworkin’s; see his law’s empire (cambridge mass: belknap press, 1986). 69 ibid at 108 et seq. he says at 110, for example, that: ‘a full political theory of law, then, includes at least two main parts: it speaks both to the grounds of law – circumstances in which particular propositions of law should be taken to be sound or true – and to the force of law – the relative power of any true proposition of law to justify coercion in different sorts of exceptional circumstance. these two parts must be mutually supportive. the attitude a full theory takes up on the question how far law is commanding, and when it may or should be set aside, must match the general justification it offers for law’s coercive mandate, which in turn is drawn from its views about the controversial grounds of law.’ 70 for a first-hand account of the appointment of the present honourable chief justice, where both dimensions are seen to be present see l yew from third world to first, the singapore story: 1965-1990 (new york: harper collins, 2000) at 216-220. the denning law journal 90 few years between the completion of dr worthington’s project and the date of publication of his book last year, that there is, on the contrary, a keenness, typical of singapore’s policy thinking, for renewal. in this way, critics like dr worthington and the decision-makers appear of one mind. at present, only two judges sit on singapore’s court of appeal as of right, the chief justice and judge of appeal, chao hick tin. the third post remains vacant with the departure, since his time of writing of judges of appeal karthigesu and, more recently, l p thean.71 it suffices to say that when the highest appellate body of a nation comprises simply three justices, the third-seat is the equivalent of three united states supreme court justices. constitutions, governments and courts none of what i have had to say in this defence of aspects of the singapore constitution should suggest that maintaining a separation of powers in the classic sense of having checks and balances is not considered important at the highest levels of official thinking.72 true, law-making is seen here largely as a question of legal policy and this explains the extent in singapore of legislative intervention. having said that, singapore’s experience is not unusual amongst modern industrialised societies (notwithstanding that nation-building in singapore has required active policy stewardship). consider, for example, the intrinsic merit in having certainty in sentencing policy and practice. 73 dr 71 the senior minister’s account, describing the initial reluctance of the presently incumbent chief justice, reminds me of the description in stubbs’ magisterial work of a certain t gamel who would not deign to attend parliament in ‘an age when the office of representative was regarded rather as a burden than as a privilege’ and was reported, in what i take to be lucid norman french, would: ‘ne se deygne venir pur riens que nous savons fair’: w stubbs constitutional history of england in its origin and development volume iii (oxford: clarendon, 1878) n 1 at 421. worthington’s general portrayal of singapore judges being constrained by considerations of tenure would appear just as odd to twenty-first century singapore eyes. 72 for which, see the response in parliament of professor s jayakumar, the minister for law to the speech of nominated member, mr tay on the issue: parliamentary debates, official record, vol 68, 14 january 1998, cols 90 – 94 (associate professor s tay) and 96 (professor s jayakumar). 73 see n 120. i have already discussed the error he commits in respect of the law relating to judicial review in singapore. as for the fact that we now live in an age of statutes, this is hardly new across the length and breadth of the common law, or unique the denning law journal 91 worthington says that, in terms of the singapore criminal justice system, this means simply that “the executive does the sentencing via legislation”. his statement is bizarre and a good illustration is a recent high-profile case which the press observed had put the prosecution on the side of the defence. the attorney-general, in the name of the public interest, had referred the sentencing decision of the chief justice to the court of appeal, contending that the sentence there was more severe than the law should allow, and that the chief justice had got the law wrong. an unanimous court of appeal (comprising justice of appeal chao hick tin, and justices m.p.h. rubin and tan lee meng) agreed and reversed the chief justice’s decision.74 that reversal, in my view, does not have the look or appearance of a society without checks and balances. but what should singapore have for a separation of powers? here, dr worthington’s criticisms again serve as a useful foil. singapore is in the bizarre situation, in common with various other former british colonies, of having a written constitution which a british judge would be challenged to apply, in my view, particularly if such application is to be performed from the great heights of english law. it must be doubted too how such cabinet government and a parliamentary majority in the westminster senses should accommodate a constitution replete with a supremacy clause (article 4), not to mention two centuries of united states supreme court jurisprudence. take the term “judicial review”. what a splendid term, but what does it mean in singapore? for worthington, he means to refer either to the english or the american usages of the term. yet he fails to recognise that these are two very different senses of “judicial review”. he fails to recognise in fact the principal constitutional difference between westminster-style government and something more akin to the united states model. so he says that (the english version of) judicial review in singapore has been shackled by legislation. in reality, however, the superior courts in singapore have not hesitated in claiming the power to strike down legislation (even those that seek to shackle the courts’ ability to do so) should such legislation offend the constitution in the eyes of the courts. article 4 of the singapore constitution has been invoked to supply this judicial power. such a thing would be unthinkable in england at to singapore; see g calabresi a common law for the age of statutes (cambridge mass: harvard university press, 1982). 74 straits times, may 20 2003 and august 23 2003. see s 60 supreme court of judicature act (cap 322). the denning law journal 92 common-law, 75 whereas in the history of the united states constitution, as everyone well-knows, the power of judicial review originated there, instead, in the form of a brilliant but naked usurpation of power by chief justice john marshall’s supreme court. 76 when dr worthington talks then about the 75 see now, for the position in english law resulting from the factortame litigation; r v secretary of state for transport ex parte factortame ltd [1989] 2 cmlr 353 (ca); r v secretary of state for transport ex parte factortame ltd [1990] 2 ac 85 (hl); r v secretary of state for transport ex parte factortame ltd (no 2) [1991] ac 603 (hl); case c-221/89 r v secretary of state for transport, ex parte facortame ( no 3) [1992] qb 680 (hc); r v secretary of state for transport, ex parte factortame ltd (no 5) [1998] cod 381 the merchant shipping (registration, etc) act 1993 s 3; the merchant shipping (registration of ships) regulations 1993, si 1993 no 3138. the game was up by the time of factortame (no 2). see further r v secretary of state for employment, ex parte equal opportunities commission [1995] 1 ac 1. 76 the events here bear a summary description. at the turn of the nineteenth century, every federalist judge had become implicated in the prosecution (history says ‘persecution’) of ‘jacobin’ republicans under the sedition act enacted by the ‘tory’ federalists led by john adams. the federalists thereafter lost control of congress, and in the case of j adams the presidency to t jefferson. a lame duck congress and president succeeded, however, in packing the courts at federal district and circuit levels with federalist nominees as well as a disproportionate number of newly created justices of the peace for the district of columbia. the federalists meant to govern the country through the courts instead. on the night before the handover, j marshall, then j adams’ secretary of state, having signed and sealed the letters of appointment for the “midnight judges” neglected however to secure their delivery, and thus they fell short of having legal effect. the new secretary of state (j madison) refused to complete the appointments by delivering them. the matter then came before the supreme court by way of an application for mandamus by one of the four “midnight judges” (marbury) who had brought legal action so as to compel madison to complete the task of appointment. in this way, j marshall himself, who had also been confirmed as chief justice of the supreme court before the handover, presided over the supreme court hearing to remedy his own administrative oversight, and found for w marbury. marshall was then faced with the question of the remedy sought by marbury. the supreme court unfortunately lacked the jurisdiction to order the relief sought under section iii of the first congress’ judiciary act of 1789, for its original jurisdiction was limited to cases in which a state is party and cases involving ambassadors, other public ministers, and foreign consuls. marshall could have stopped there and simply let marbury’s lawyer take the matter to the right court, but he did not and, instead, uttered those famous words “if an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it the denning law journal 93 separation of powers, the supposedly “anti-judicial” (and thereby supposedly “anti-rule of law”) attitude of the singapore legislature, and the supposedly shackled singapore courts, he ends up in total confusion for he slips and sways between two very different senses of the term “judicial review”, divided by the vast atlantic. 77 either that or he is advocating, instead, that the singapore effect?” his answer: “it is emphatically the province and duty of the judicial department to say what the law is.” in itself, this was hardly startling as a matter of law, but for its constitutional effect in the political circumstances of the case. thus was the judicial power secured both to nullify congress’ actions, and the judiciary act was indeed congress’ creature, and to ensure that the executive could not evade judicial orders: p irons, a people’s history of the supreme court (new york: viking penguin, 1999) at 96-107. 77 as dicey put it succinctly: ‘the american judge must in giving judgment obey the terms of the constitution, just as his english brother must in giving judgment obey every act of parliament bearing on the case’: dicey, see n 13 at 88. similarly, he confuses two different kinds of apparent limitations to the power of judicial review in english law alone. legislative provisions containing clauses that purport to make the minister’s decision “final” are more apparent in their legal effect than real, although some other clauses achieve just that. the two categories of legislation which i have just described differ vastly. examples of the first may be found, for example, in the newspaper and printing presses act (cap 206), the undesirable publications act (cap 338), the films act (cap 107), the public entertainments act (cap 257), the miscellaneous offences (public order and nuisance) act (cap 184), the public order (preservation) act (cap 258), and the societies act (cap 311). however, they are, in fact, legally subject to the usual principles of judicial review. depending on the proper construction of their terms by the courts, the minister’s decision would hold (or the president’s decision, where appeal to a final decision of the president is provided, such as in the case of the newspaper and printing presses act in respect of the licensing of printing presses) only if the discretion exercised therein were in keeping with certain requirements. these include the basic requirements of procedural fairness, the need for such exercise of executive discretion to have been in good faith and to fall within the terms prescribed under the particular legislation, and also the need for such an exercise of ministerial discretion to meet any other statutory requirement to be found in a particular act. aside from the other ancient prerogative writs and the legal fiction of nullity where an executive decision is found to have been ultra vires, an order of certiorari would also be available to quash the decision reached. in this respect, the law, as stated by the english court of appeal in r v medical appeal tribunal ex parte gilmore [1957] 1 qb 575 (ca) would still apply in singapore under the young v bristol aeroplane rule, subject to departure under the practice statement of 1994, see n 18 above. gilmore is a good example since the legislative drafting formula there was the denning law journal 94 contained in a clause stating, precisely, that ‘any such order or decision shall be final.’ dr worthington is, therefore, not only wrong with respect to this general class of acts, but also in respect of the passports act (cap 220), for example, see n 92 at 302. subsidiary legislation exists under the passports act in the form of the passports regulations. paragraph 15(1)(a) of the passports regulations states that the minister’s decision “shall be final.” moreover, and this is what makes it a second separate class from the first, that clause is contained in subordinate not primary legislation and english lawyers know the legal difference. in any case, the provisions in these two classes of (primary and secondary) legislation employing clauses which purport to make executive decision final differ, again, from a third class of provisions which in singapore would normally pertain to matters of national security only, although even here, should national security be asserted by the minister, its characterisation as such may be challenged still in singapore on grounds of legal irrationality: chan hiang leng colin v minister for information and the arts [1996] 1 slr 609, at 621g-i – 622a. arguably then, judicial review is only properly excluded as a matter of singapore law in the case of the employment of very clear ouster clauses, such as that to be found in s 8b(2) of the internal security act (cap 143). section 8b(2) states that: ‘there shall be no judicial review in any court of any act done or decision made by the president or the minister under the provisions of this act save in regard to any question relating to compliance with any procedural requirement of this act governing such act or decision.’ what the draftsman must have had in mind here was lord reid’s words that ‘it is a well established principle that a provision ousting the ordinary jurisdiction of the court must be construed strictly, meaning, i think that if such a provision is reasonably capable of bearing two meanings the meaning should be taken which preserves the ordinary jurisdiction of the courts’; anisminic v foreign compensation commission [1969] 2 ac 147 (hl) per lord reid. the law pertaining to judicial review of administrative action is exceptional for the purposes of the internal security act. it is a codification of the common-law as at 13 july 1971 pursuant to the combined legal and constitutional effect of the constitution of the republic of singapore (amendment) act, no 1 of 1989 and the internal security (amendment) act, no 2 of 1989. the common law at the time was expressed in lee mau seng v minister of home affairs [1971] 2 mlj 137. nonetheless anisminic, howsoever construed, would still apply under this specialised rule. technically the draftsman’s intent behind the drafting language of s 8(b)(2) may thus be attributed to a professional excess of legal caution since the high court in lee mau seng had upheld the clause purporting to make executive decision final (‘if the president is satisfied’). while comprehensive examination of this point of law is beyond the scope of this review, see also south east asia firebricks sdn bhd v non-metallic mineral products manufacturing employees union & ors [1980] 2 mlj 165 (privy council), i mention these cases to illustrate an important comparison. namely that clauses similar to that in s 8b(2) of singapore’s internal security act (cap 143) proliferated in england in response to anisminic; see, the denning law journal 95 courts should have been striking down legislation left-right-and-centre all along, but he does not tell us why this should be so. he is aware, for example, that the court of appeal in bridges has said that, in singapore, the courts shall decide what an official secret is, not the executive. worthington neglects the constitutional significance of this.78 the case is not simply about official secrets. instead of invoking the constitution (which could have precipitated a constitutional incident), the singapore courts confined themselves to the strict construction of the statute. 79 despite this, lawyers know that, in the ultimate constitutional analysis, what the court of appeal in singapore has had to say about this is also backed, if need be, by the constitutional powers granted to the court, amongst other things to protect the freedom of speech and expression in singapore. constitutional scholars nonetheless admit, as dean guido calabresi had put it once in his oliver wendell holmes lectures in 1977,80 that: “constitutional adjudication and use of the passive virtues, though not unusual reactions to anachronistic laws, are not the most common judicial responses. the traditional judicial weapon in dealing with statutes has always been interpretation of what the written law means.” had the courts been challenged by the executive, singapore could have been required to have its own marbury v madison.81 what is striking is that this affair occurred with hardly a murmur in the legal literature, and without any great fanfare. balfour would have been elated at our englishry at a moment in singapore’s constitutional history where it counted most.82 but you could say for example, s 7 of the british communications act 1985 and s 44 of the british nationality act 1981. for a further illustration of some of the legal distinctions drawn in this footnote, however, see c lim ‘executive lawmaking in compliance of international treaty [2002] singapore journal of legal studies 73. 78 worthing, n 1 see pp 111, 136, 155 and 164. he is simply wrong in saying that the chief justice presided over the court of appeal in this case. the chief justice was sitting in the high court and the matter was brought before the court of appeal by way of a criminal reference by the a-g. 79 bridges christopher v public prosecutor [1997] 1 slr 406,per yong pung how cj; and the decision of the court of appeal arising from the criminal reference brought by the a-g under s 60 of the supreme court of judicature act (cap 332) in public prosecutor v bridges christopher [1998] 1 slr 162 per karthigesu ja. 80 calabresi see n 73 at 31 et seq. 81 5 us (i cranch) 137 (1803); see see n 76. 82 whose preface to w bagehot’s the english constitution (oxford: oxford university press, 1949), at xxiv dr worthington cites; n 46 at 328. the denning law journal 96 that the singapore court of appeal heeded both justice jackson of the united states, 83 and bagehot’s warning, spoken against glib comparisons of westminster with the american model.84 worthington also ignores the fact that in that same year, in 1998, the high court in singapore went even further in eddie taw. instead of simply construing the relevant statute narrowly, it went forth, as i mentioned earlier, to strike down a legislative provision for being contrary to article 12 (the equal protection clause in the constitution).85 the court of appeal disagreed with the high court for reasons related to the conduct of singapore’s foreign policy and upheld the statute in question.86 the court of appeal read the constitution in the light of the legislative purpose doctrine instead, and found the particular statutory provision to have been consistent with article 12. according to the chief justice, the mischief sought to be addressed by parliament in extending singapore’s criminal jurisdiction to the conduct of permanent residents and citizens abroad, but not to do so in respect of foreigners, was intelligible nonetheless to an ordinary and reasonable citizen (whose interest it is that would be affected by the differentiation drawn).87 in contrast, most american judges would i think be surprised at the suggestion of such a matter as that in 83 ‘we are not final because we are infallible, but we are infallible only because we are final’ in brown v allen 344 us 443, 540 (1953). 84 ‘the more we study the nature of cabinet government, the more we shall shrink from exposing at a vital instant its delicate machinery to a blow from a casual, incompetent, and perhaps semi-insane outsider.’ my reference is to the american publication of the second edition of 1872: w bagehot the english constitution (new york: dolphin books, doubleday & co, year of publication unknown) at 249-250, 264. 85 taw cheng kong v public prosecutor [1998] 1 slr 943 (high court of singapore), per karthigesu ja. art 4 constitution of the republic of singapore was construed in light of this as the basis for the judicial power to strike down offending legislation: ‘this constitution is the supreme law of the republic of singapore and any law enacted by the legislature after the commencement of this constitution which is inconsistent with this constitution shall, to the extent of the inconsistency, be void.’ see also the parliamentary speech of nominated member, mr s tay, parliamentary debates, official record, vol 68, 14 january 1998, cols 90 – 94 (associate professor s tay). 86 public prosecutor v taw cheng kong [1998] 2 slr 410, at 434e per yong pung how cj. 87 see c lim ‘singapore crimes abroad’ [2001] singapore journal of legal studies 494 at 529-533; j ely democracy and distrust – a theory of judicial review (cambridge mass: harvard university press, 1980) at 251; note ‘legislative purpose, rationality and equal protection’ (1972) 82 yale law journal 13. the denning law journal 97 the eddie taw case having come this far, instead of steering clear away from foreign policy questions. 88 in england, executive certification would, more likely than not, have been the end of the matter. 89 in australia too, the famous decision of mabo (no. 2) had proceeded along the same lines. there is a close resemblance with the reasoning of justice brennan, with whom chief justice mason, and justices mchugh, deane, gaudron, dawson and toohey all concurred. according to this line of reasoning, the original acquisition of australian territorial sovereignty is invested with the significance of an act of state, prohibiting therefore the issue of native land from falling within the jurisdiction of the australian courts.90 in nearby singapore, the chief justice, who wrote the opinion of the court in the eddie taw case, agreed with the submission of the attorney-general, and considered the basis of singapore’s extraterritorial penal jurisdiction to lie beyond the constitution itself, inhering instead in the sovereignty of the republic.91 this point was upheld, again, in recent months by the australian federal court in the petrotimor case, which is even closer to the sort of legal question that arose in eddie taw, involving therein a point of foreign relations law. in petrotimor, the “timor-gap treaty” which australia had entered into was considered non-justiciable before the australian federal court.92 88 as justice brennan had put it, there is sometimes an ‘unusual need for unquestioning adherence’ to a political decision which has already been made, or because of the possibility of embarrassment should the state, as a whole, not speak with one voice; baker v carr 369 us 186 at 217 per brennan j. see further l henkin, foreign affairs and the us constitution (oxford: clarendon, 2nd ed, 1996) at 143-148. 89 e wilmshurst ‘executive certificates in foreign affairs: the united kingdom’, [1986] 35 iclq 157; c warbrick ‘executive certificates in foreign affairs: prospects for review and control’ [1986] 35 iclq 13; l collins ‘foreign relations and the judiciary’ [2002] 51 iclq 485. 90 mabo and others v state of queensland (no 2) (1991) 107 alr 1 per brennan j (mason cj and mchugh j concurring) at 20; deane and gaudron jj at 58; dawson j at 92; toohey j at 143. for criticism, however, of this decision, see, for example, v kerruish ‘at the court of the strange god’ (2002) 13 law and critique 271 and the other articles appearing in that issue. 91 [1998] 2 slr 410 at 423f-h per yong pung how cj (thean ja and goh joon seng j concurring). see see n 87 for an extensive treatment of the issue of extraterritoriality arising therein. 92 petrotimor companhia de petroleos sarl v commonwealth of australia [2003] fcafc 3 at 15-20, per black cj and hill j applying the principle laid down in england the denning law journal 98 what makes eddie taw the most significant legal case in singapore’s constitutional history, however, is not that the united states, english and australian courts would probably have steered clear of such an issue today, or that the singapore high court went forth and assumed the legal power to strike down parliament’s will, or even that the court of appeal, in overturning the decision of karthigesu ja, accepted the judicial power to do so, even if the court of appeal disagreed that this was an instance wherein that judicial power could properly be exercised. even if the court of appeal had struck down, instead, the assumption by the high court of a constitutional basis for the exercise of such judicial power, constitutionally-speaking the court of appeal could only have done so in the course of the court of appeal exercising that self-same judicial power which karthigesu ja had originally relied upon. parliament, and the government of the day, did not disagree with any of this. in sum, the singapore courts have claimed the legal power to engage in full-blooded judicial review under the constitution of the republic of singapore, and the various branches of government agree that it is the court of appeal that is empowered to say what the constitution means. there is no doubt that the court of appeal got the law right in eddie taw. imagine the disastrous precedent that would have been set had the court precluded parliament from legislating on a common crime committed by citizens and permanent residents abroad simply because parliament wished to also exclude foreigners from the scope of that crime for reasons of international comity. parliament would have had to override the court of appeal in respect of the imposition of singapore’s extraterritorial jurisdiction under a well-recognised and long-established principle of international law. how could article 12 of the constitution of the republic of singapore have even intended such preclusion in the first place? in this and the bridges case, the minister for law had explained in parliament that the government would need to consider whether these judicial incursions would make it difficult to achieve the government’s policies. in relation to bridges, the minister had said “we have asked the attorney-general to give us his considered views because his preliminary review was, and is, that if the law is not amended, then it may render it impossible or well-nigh difficult to enforce the provisions of the official secrets act.” this was said in response to a parliamentary member’s in buttes gas and oil co v hammer [1982] ac 888 (hl) and distinguishing kuwait airways corporation v iraqi airways co (nos 4 and 5) [2002] 2 wlr 1353 (hl). the denning law journal 99 impassioned speech in parliament on the separation of powers. while the honourable minister agreed with the substance of that speech, he was compelled to express the government’s thinking nonetheless that “there may well be a need to amend the official secrets act,” and in respect of the eddie taw case, amendment may have been required of “the law”. 93 yet the government, and parliament, which has a recent history of seeking ways to install checks against itself,94 have ultimately seen fit to invest confidence in the courts. the government had won eddie taw, but lost bridges. unlike the aftermath of chng suan tze v minister of home affairs 95 a decade earlier, neither a single constitutional amendment nor a single legislative amendment resulted. popular critics of the singapore constitution have for too long dwelt on the exceptional situation in the earlier case of chng suan tze, and have assumed 93 parliamentary debates, official record, vol 68, 14 january 1998, cols 90 – 94 (associate professor stay) and 96-98 (professor s jayakumar). 94 i have spared extensive discussion of the presidency, where in fact the president enjoys also a high degree of institutional independence, as well as substantive executive powers unheard of anywhere else in westminster-style governments. for those unacquainted with singapore, parliament amended the constitution in 1991, thereby turning singapore’s then ceremonial and titular presidency into an elected office vested with substantive legal powers and immunities. broadly speaking, these include, but are not limited to, specified powers concerned primarily with the preservation of singapore’s reserves and finances and also the surpluses of statutory board and government companies, including where necessary the power to override parliament subject only to popular referendum, and specified powers in respect of key public service appointments; constitution of the republic of singapore (amendment) act, no 5 of 1991; presidential elections act, no 27 of 1991; constitution of the republic of singapore (amendment) act, no 2 of 1994; arts 21(2), 22, 22a-i, and also arts 5(2a), 17(2), 19(2)(g), 37m, 100, 144(2), 144, 148a and g, 151(4), and 151a of the constitution of the republic of singapore. see k tan ‘the presidency in singapore: constitutional developments’ in tan and lam (ed) see n 8, 52. a considerable amount has been written on this important aspect of the constitutional separation of powers in singapore; see tan and lam, ibid, and the works cited therein. 95 [1988] slr 132 at 158b-e per wee chong jin cj. see see n 77. there was extensive parliamentary debate wherein the government stated its reasons for amending the constitution in respect of a limited class of otherwise ‘reviewable’ cases: singapore parliamentary debates, official record, 25 january 1989, cols 461, 467-471, 531. for a comparative jurisprudence of similar action taken elsewhere in the aftermath of september 11 see the july 2002 issue of the singapore journal of legal studies. the denning law journal 100 that because in this one case wherein the government felt that the decision would hamper its ability to ensure singapore’s security and was compelled (in its view) to seek and achieve a constitutional amendment, the approach approached taken in chng characterises, in fact, the executive’s view more generally of the separation of powers in singapore. the minister’s speech in the aftermath of the eddie taw and bridges cases points clearly, however, in the other direction. hard cases make bad law, or in the case of chng suan tze a hard case has resulted in an adverse general impression of the law. on the other hand, nobody could honestly have thought a decade later that the separation of powers was finished in britain simply because of the controversy over “clause 29” of the much debated anti-terrorism, crime and security bill which sought to exclude legal proceedings for questioning a certificate or action made or taken by the secretary of state, or a decision or action of the special immigration appeals commission (siac). the ensuing part iv of the british anti-terrorism, crime and security act of 2001 allows review of the secretary of state’s decision by the siac instead, seeks to prevent judicial review of the siac, makes siac a superior court of record, and permits appeals only on a point of law.96 the point is that court-watchers should be sufficiently astute to discern the exceptional from the routine. routinely, as the minister for law had also explained, the singapore government does face and accept legal losses before the singapore courts. the singapore courts claim the constitutional power in reserve to strike down legislation, which is all the more remarkable here as there is, like the case in the united states, no express provision in the singapore constitution which would confer such a power on the courts. this is particularly so in a westminster-style government, as such a power is something the courts in england do not claim or have but for the dictates of europe following the factortame cases. in england, reliance is, by and large, placed on parliament instead as the essential check. consider that even dicey, who explained the doctrine of parliamentary supremacy only so well, did himself come within a hair’s breadth of treason through advocating, against parliament’s will, violent means in respect of irish home rule and you will see what they mean in england. 97 england, in this regard, is no better or worse, just different. in america, on the other hand, such trust has been placed on the supreme court. 96 see ss 21, 25, 27 and 35 of the act and a, x and y v secretary of state for the home department [2003] hrlr 3 (ca). 97 lord bingham of cornhill ‘dicey revisited’ [2002] public law 39 at 43. the denning law journal 101 yet events there have moved quickly in recent years. recall that the 1992 united states presidential elections was about abortion, and about who would be appointed to the supreme court either to preserve or overturn roe v wade, depending on which side one was on. recall too that roe v wade itself had involved litigating into existence a liberal solution to the abortion issue.98 eight years on from the 1992 presidential elections, a republican majority in the court, having learnt judicial activism from a generation of liberal judicial victories, decided in favour of a republican president for the united states while the minority justices took the view that the supreme court should not have heard the case.99 even american liberals today are, therefore, in favour of the common-sense notion that, generally speaking, judges ought not to make the law, they should just apply it.100 perhaps more attention then should be paid to the israeli experience. there they have an extremely active supreme court reminiscent of the heyday of american judicial activism. and yet recent studies show that the israeli people have simply rejected these judicial overtures.101 worthington’s critique of the separation of powers, judicial independence, and the supposedly interventionist legislative record of the executive in singapore ignores the constitutional dimension to these issues, and it also ignores the fact that it is the constitutional dimension which gives meaning to 98 410 us 113 (1973). 99 bush v gore supreme court of the united states, 12 december 2000. 100 professor dershowitz puts it better than i can: ‘courts ought not to jump into controversies that are political in nature and are capable of being resolved – even if not smoothly or expeditiously – by the popular branches of government. judges have no special competence, qualifications, or mandate to decide between equally compelling moral claims (as in the abortion controversy) or equally compelling political claims (counting ballots by hand or stopping the recount because the standard is ambiguous). absent clear governing constitutional principles…these are precisely the sorts of issues that should be left to the rough-and-tumble of politics…’: a dershowitz supreme injustice: how the high court hijacked election 2000 (new york: oxford university press, 2001) at 194. liberals had previously continued to cling to the myth of the supreme court being ‘the least dangerous branch’, especially in light of the seemingly moderate position of an emergent “conservative middle group” comprising justices o’connor, kennedy and souter in the aftermath of the 1992 presidential race. this group of three justices had held the balance in planned parenthood v casey, 505 us 833 (1992), a test case for the continuity of roe, and they had preserved roe. all three were republican appointees of the reagan administration. 101 d barak-erez ‘judicial review of politics: the israeli case’ (2002) 28 journal of law and society 611. the denning law journal 102 these issues in the first place. in the two cases i have already discussed, bridges and eddie taw, the judiciary and the executive managed to avoid the sorts of situation that we have so often witnessed in the united states or in the famous example in south africa in the 1950s. i think it is important to ask “what if”, in these cases, parliament, and the government, had disagreed with the courts? i don’t mean to be dramatic, but compare the famous “cape coloured voter’s case” in which the south african courts struck down the separate representation of voters act 1951 for infringement of the south africa act of 1909. whatever the legal merits,102 the legislature then responded by creating a special appellate court to hear appeals from such judgments. the new appellate court went on to find the decision in the cape coloured voters case invalid. unperturbed, the original court in turn found the legislation creating the new appellate court invalid, and that; therefore, the new court was itself a legal nullity.103 had the south african government not decided against pursuing the matter any further, the legal system would simply have broken down.104 putting aside such an extreme, but not impossible, example, every-one knows that no 102 on the point of law, drawing a distinction between cases of express constitutional provision and those without see a bradley ‘the sovereignty of parliament – in perpetuity’ in j jowell and d oliver the changing constitution (oxford: clarendon, 1989) 25 at 28-29. for the ‘new view’ of sovereignty see r latham ‘the law and the commonwealth: a jurisprudential essay’ in w hancock survey of british commonwealth affairs, volume one (oxford: oxford university press, 1937) 510; g marshall constitutional theory (oxford: oxford university press, 1971) at 40-41 and 52, r heuston essays in constitutional law (london: stevens, 2nd ed, 1964) chapter 1. the ‘new view’ suggests that even at common law in england, where there is an unwritten constitution and parliament reigns supreme, the courts could review an act on the basis of some flaw in the composition and procedure of parliament. this is not the english courts’ view of the common-law: british railways board v pickin [1974] ac 765. the common british academic view, however, is that parliament could impose limits upon itself as to the manner and form of legislation. see also the factortame cases see n 75. 103 harris v dönges [1952] 1 tlr 1245 sub nom harris v minister of the interior 1952 (2) sa 428; also minister of the interior v harris 1952 (4) sa 769. the affair is described in g marshall parliamentary sovereignty and the commonwealth (oxford: oxford university press: 1957). 104 hart, see n 29 at 119. the denning law journal 103 government which is constantly at odds with itself is in any sense ideal.105 lord devlin could have spoken for just about everyone where he once said: “the british have no more wish to be governed by judges than they have to be judged by administrators”.106 i have focused on the superior judiciary and the position of the attorneygeneral under the constitution. i have sought to capture the “spirit” which informs the everyday, practical meaning of the singapore constitution. dr worthington’s attack is, if i might say so, so inept in respect of the constitution itself and what it means that if his criticisms could amount to anything at all, they could only have hit the mark here. yet they do not. no constitution is perfect. equally, however, no constitution can properly be understood by way of empirical surveys of the opinions of its critics. 105 for a recent, and important, contribution to this debate in relation to singapore, and also the independence of the subordinate judiciary, see hor, see n 34, whose arguments here i am largely in agreement with. 106 the times, october 27, 1976. or as ellesmere is reported to have once said in rebuke of lord coke: ‘he doth as much as insinuate that this court is all sufficient in itself to manage the state…’, sir william holdsworth, history of english law, volume 5 (london: methuen, 1938), at 430. the denning law journal 104 different strokes for different folks on tenure and judicial independence the attorney-general’s constitutional role the denning law journal 259 denning law journal 2007 vol 19 pp 258-269 case commentary vulnerable adults: the inherent jurisdiction and the right to marry re sa (vulnerable adult with capacity: marriage) ([2006] 1 flr 867) mary welstead∗ the facts ms sa was an eighteen year-old deaf and mute young woman. she had minimal sight in one eye, the intellectual capacity of an early teenager, and the reading age of a seven year-old. her family (mother, father and three brothers) came from a pakistani muslim background; they spoke primarily urdu and punjabi. ms sa was neither able to lip-read nor understand either of these languages; her only means of communication was through british sign language (bsl) which she had learned in a specialist educational unit for deaf children. none of her family had learned bsl; thus, communication between ms sa and her family was very limited. her family wished to arrange, or possibly even force her into, a marriage in pakistan. she was happy to have an arranged marriage but wanted the right to veto any potential husband. prior to her 18th birthday, the local authority had applied to make ms sa a ward of court because it feared that she might be forced into marriage against her will. the court under its inherent parens patriae and wardship jurisdictions had granted protective injunctions to prevent any possibility of a forced marriage. the local authority and the guardian remained concerned that ms sa, as a vulnerable adult, would require continued protection when the wardship ended when she attained the age of majority. it therefore applied successfully to the court to invoke the inherent jurisdiction of the high court and obtain a protective order to safeguard ms sa’s future welfare. the relevance of the decision in re sa ∗ bsc (econ) (lond), ma, phd (cantab), diped (london): visiting professor and director of the university of buckingham foundation. case commentary 260 the decision in re sa is important for a number of reasons. first, it confirms that the inherent jurisdiction is an extremely broad-based jurisdiction which has the capability of protecting vulnerable adults’ interest in the same way as the wardship jurisdiction does for children. munby j, in a lengthy and detailed judgment explained the extensive development of the inherent jurisdiction since the house of lords rediscovered its potential in re f (mental patient: sterilisation) ([1990] 2 ac 1), and the current scope of the doctrine. in re f, the house of lords held that it was open to the court under the inherent jurisdiction to make a declaration that the proposed sterilisation operation was in a mentally incompetent female patient's best interests. she could not give consent to the surgery herself yet without the proposed operation, as a sexually active adult, she was at risk of an unwanted, and potentially very frightening, pregnancy. she would be totally incapable of caring for any child. second, the decision is of interest because it raises further important and overlapping questions including the nature and circumstances of the requisite mental capacity of a vulnerable adult who wishes to marry; the competing interests of the rights to self determination under arts 8 (the right to respect for family and private life), 12 (the right to marry), and 14 (the right to enjoy the rights under the convention without discrimination) of the european convention for the protection of human rights and fundamental freedoms 1950 (echr 1950) versus the need to protect vulnerable adults from exploitation from prospective partners and family members, and, finally, the problematic issue of recognising the value of arranged marriages for vulnerable adults in cultures where such marriages are considered to be the norm, whilst ensuring that parties are protected from exploitation in the form of forced marriages by their families or by third parties. according to munby j, a vulnerable adult is not a term of art; it is descriptive not definitive; indicative not prescriptive. it includes anyone: “… who, whether or not mentally incapacitated, and whether or not suffering from any mental illness or mental disorder, is or may be unable to protect him or herself against significant harm or exploitation, or who is deaf, blind or dumb, or who is substantially handicapped by illness, injury or congenital deformity.” the decision in re sa once ms sa had attained the age of 18, munby j was faced with the dilemma of how to protect her from an inappropriate marriage to which she did not freely consent. there were three possible solutions to this dilemma. first, he could have found her to be mentally incapable of contracting a the denning law journal 261 valid marriage. this he was not anxious to do; his aim was to ensure, if at all possible, that she should lead a happy and fulfilled life as a woman, wife and mother and, thereby, safeguard her rights under the echr 1950. he explicitly stated that his concern “… must be to enable this vulnerable young woman to exercise her right to self-determination, specifically her right to marry as enshrined in art 12 of the convention. like singer j, (see below in re sk (proposed plaintiff) (an adult by way of her litigation friend) ([2005] 2 flr 230)) i emphasise the importance these courts place on the right of the individual to exercise choice in this most intimate area of decision-making.” second, he could find that ms sa had the mental capacity to marry and in so doing the court would have no jurisdiction or role in protecting her from the risk of an inappropriate if not forced marriage. although such a marriage would be voidable at her request (matrimonial causes act 1973 s.12 (c)),if she were to make such a request , the courts have been reluctant to allow an event to happen which would later require rectification with all the attendant possibilities of destabilising the vulnerable person still further (see below m v b, a and s (by the official solicitor) ([2006] 1 flr 117). third, he could find that she could be regarded as a vulnerable adult with capacity to marry but requiring the protective power of the inherent jurisdiction to safeguard her best interests in the same way as they had been protected by the wardship jurisdiction during her minority. munby j decided to take this third route. appropriately drafted injunctions, he thought, could “… protect sa's private life, in particular to ensure that her private life is not jeopardised by her parents' actions in seeking to arrange a marriage for her. in striving to meet this objective i am, in other words, giving effect to the court's duties under art 8 of the convention.” capacity to marry the psychologist who evaluated ms sa, assisted by a bsl interpreter, acknowledged the problems in determining the nature of her mental capacity. the nature of psychological testing uses both verbal and non-verbal communication; the former is inappropriate for a deaf person who is only capable of understanding non-verbal communication, and the validity of the results was therefore likely to be compromised. case commentary 262 munby j found the psychologist’s report to be so ‘remarkable, sympathetic and illuminating’ that he quoted in detail from it. ms sa’s non-verbal iq was found to be in the borderline range of ability and her verbal ability, although incapable of assessment, was assumed to be in the learning disability range. the psychologist, in his discussion of her suggestibility, found that “…it is highly likely that the nuances of any conversation that were occurring around her, even if translated to bsl, would not be understood by her. therefore, i believe that although she may not be particularly suggestible, it would be extremely easy to mislead her and in that sense she would be both suggestible and vulnerable.” thus, ms sa’s ability to understand information, and express her own views, was severely limited. however, the psychologist concluded that ms sa had “…a rudimentary but nevertheless clear and accurate understanding of the concept of marriage and of what a marriage contract would entail; that she has an accurate and realistic understanding of what a sexual relationship is, its effect and implications, and what would be expected within the relationship, and that she understands that a marriage can be legally ended in divorce.” however, he drew attention to the fact that although ms sa understood the concept of marriage in general, she did not appear to be able to grasp the ramifications of the specificities of her proposed marriage. she was clear in her own mind that she wanted to have an arranged marriage to an english speaking muslim man, and that she would probably have to go to pakistan to meet him. she was adamant that any potential husband would have to return with her to the uk as her fiancé and marry her in the uk. she expected to have the right of veto over whom she might marry and not be forced into marriage. however, according to her social worker and her guardian, ms sa was very naive and immature; the psychologist also recognised this. he found that she was unable to comprehend the very real possibility that her parents might take her to pakistan, organize her marriage, whilst she was there to a man who would not, or could not, because of immigration rules, return with her and live in the uk. if that were to happen, ms sa would be unable to express her concerns to anyone in pakistan or obtain help to return to the uk. she might then be compelled to remain in a country where she would be unable to communicate with anyone in bsl, including the man she might have been forced to marry. the denning law journal 263 such a possibility would result in her leading an isolated existence and her mental health would suffer severely. to the reader, the psychologist’s conclusions, in the light of his and the social worker and guardian’s views of ms sa’s general mental ability, may seem somewhat confusing. however, munby j, purported to follow his own test of mental capacity to marry which he had expressed in re e (an alleged patient); sheffield city council v e and s ([2005] fam 326) and held that ms sa fulfilled the requirements of that test and did have the capacity to marry. mental capacity in re e in re e, munby j stated the fundamental requirement that any person wishing to marry must have the mental capacity to do so. without such capacity, any marriage would be voidable (matrimonial causes act 1973 s.12(c)). in his view, the general rule of english law relating to capacity in any context is to ‘understand the nature and quality of the act’. thus, the test for establishing mental capacity relating to marriage, requires a person wishing to enter into a valid marriage to know that he or she is taking part in a marriage ceremony and understands the words of the ceremony; he or she must also be able to appreciate the responsibilities which stem from the contract of marriage agreed to in that ceremony. according to munby j, the marriage contract confers on the man and woman the status of husband and wife. from this status flow consequences. the parties are expected, inter alia, to live together, love only each other as husband and wife, and be responsible for each other’s care and comfort. given the nebulous nature of the state determined english marriage contract, it might be argued that munby j’s test is a very high hurdle for a mentally vulnerable adult to leap. after all, it is not always easy for a mentally competent adult to appreciate the full significance of the marriage contract, which is an unwritten one, and can only be compiled from a reading of case law and statute, (primarily, relating to marital breakdown). this is not the reading matter of most couples who are about to embark on marriage, and certainly not of a vulnerable adult on the borderline of learning ability with a reading age of a seven year-old. however, munby j did not share this view. he maintained, on the authority of park v park ([1954] p 112), that the contract of marriage is essentially a very simple one, and does not require a high degree of intelligence to comprehend it. he was, quite understandably, anxious to avoid discriminating against those of limited mental ability, whose lives could might benefit substantially from marriage, were the test of capacity to marry be set too high. however, he did not question the realism of her expressed views relating to whom, and how, she wished to marry nor did he acknowledge the dilemma in case commentary 264 finding that ms sa had the mental capacity to marry whilst at the same time accepting the psychologist’s finding that she had a mental age of thirteen. he simply stated that the question whether a person has capacity to marry is a generalized one; it does not relate to the implications of marriage to, or wisdom in marrying, a specific person. no court may rule on whether it is in a person’s best interest to marry any particular partner, and no court may give consent to marriage on behalf of anyone who lacks capacity to give his or her own consent. the psychologist in re sa had also found that ms sa did not have the capacity to conduct litigation. however, munby j held that capacity is issue specific and that a person could lack mental capacity with respect to certain matters but have capacity in other areas of her life. in particular, he accepted that ms sa could have the mental capacity to marry but lack the mental capacity to litigate in relation to that marriage. the inherent jurisdiction it was evident that ms sa would require help if she were to be allowed to marry on her own terms. munby j proceeded to consider the nature of the inherent jurisdiction and its capacity to protect vulnerable adults. in his view, the jurisdiction is, in both substance and reality, the same for vulnerable adults as the wardship jurisdiction is for children. he described it as a protective jurisdiction which is based on the common law doctrine of necessity. although its use in the past was primarily in relation to the medically incompetent and medical treatment, it’s application was, he thought, theoretically, limitless. he maintained that since re f, the potential of the inherent jurisdiction had been developed and was likely to continue to be extended in accordance with the courts’ responsibilities to safeguard human rights under the echr 1950. munby j began his analysis of the non-medical decisions, in which the inherent jurisdiction had been invoked, with the case of re c (mental patient: contact) ([1993] 1 flr 940). eastham j, in re c, had no difficulty in giving an affirmative answer to the preliminary question of whether the inherent jurisdiction could be used to grant a mother staying contact with her mentally ill adult daughter, and an order that the father, with whom the daughter was living, must not obstruct such contact. the daughter would otherwise be, in effect, a prisoner of her father. eastham j explained “i have come to the conclusion that if the plaintiff had wished there was material, if her contentions are right, to found an application for habeas corpus, and i am inclined to agree with the submission that if the grounds apply for relief in that drastic form it does support very much the contention that the denning law journal 265 there should be relief available by way of the lesser declaration [of an order under the inherent jurisdiction]” in re t (adult: refusal of treatment) ([1993 fam 95]), the appeal court accepted that it could invoke the inherent jurisdiction to determine whether a normally mentally competent patient could be deemed to be ‘vulnerable’ because his or her consent, or lack of consent, to treatment might have been compromised or vitiated by shock, fatigue, pain, drugs, or the undue influence of another. in re g (an adult) (mental capacity: court’s jurisdiction) ([2004] all er (d) 33) an adult woman had a history of mental illness. by the time of the full hearing for a continuation of the protective framework which had been put in place by interlocutory orders, the woman’s mental capacity had improved significantly. those orders had had the effect of protecting her from her parents’ overbearing influence and demands, and, as a result, her mental health had improved. although ms g no longer needed the orders, were they to be removed, she was likely to revert to her previously disturbed state. bennett j explained persuasively and sensibly that “…it would be a sad failure were the law to determine that i had no jurisdiction to investigate and if necessary make declarations as to g’s best interests to ensure that the continuing protection of the court put in place … is not summarily withdrawn simply because she has now regained her mental capacity in respect of the matters referred to, given the likely consequences to g if the court withdrew its protection.” in m v b, a and s (by the official solicitor) ([2006] 1 flr 117), sumner j used the inherent jurisdiction to declare that ms s lacked capacity to marry. he made orders to prevent the risk of her parents taking her to pakistan for an arranged or a forced marriage. these would prevent the risk of ms s suffering serious emotional and psychological damage. although any such marriage would clearly be voidable at the request of either party, the court regarded it as preferable that it was better to prevent damage in the first instance than to attempt to repair the harm incurred after the event. munby j, finally, considered the decision in re sk (proposed plaintiff) (an adult by way of her litigation friend) ([2005] 2 flr 230). this illustrates the use of the inherent jurisdiction, in perhaps the most innovative of all ways, to protect a potentially vulnerable young adult woman. she was not mentally incapacitated in the accepted sense of the term but was regarded as vulnerable because of her cultural background which led to pressures being put upon her to marry in conformity with her parents’ wishes. case commentary 266 the foreign and commonwealth office had learned that the woman, who lived in england and was of bangladeshi origin, was somewhere in bangladesh, probably against her will, because her family, consisting of her parents and brothers, wanted to force her to marry there. the foreign and commonwealth office requested that a solicitor take action on her behalf; the woman knew absolutely nothing of the court proceedings. singer j explained his view that “…the inherent jurisdiction now, like wardship has been, is a sufficiently flexible remedy to evolve in accordance with social needs and social values. if an adult is deprived of the capacity to make relevant decisions, then, if there is disagreement about what should be done in his or her best interests, or if there is a serious issue as to the propriety of what is proposed, recourse can be had to the court for declaratory relief.” he held that the jurisdiction could be exercised even in the absence of the vulnerable person, and without their knowledge, and proceeded to make orders and issue directions to discover whether the woman was being forced to marry and/or remain in bangladesh against her will. her family was ordered to allow her to be interviewed at the high commission in bangladesh to find out what she really wanted to do. the order included injunctions restraining the family from arranging any marriage or threatening or using violence against the woman. such an order, singer j believed, would encourage others outside the family to cooperate with the high commission. other orders required the woman’s relatives, who were living in england, to appear before the high court. the orders had the desired effect. the relatives communicated with the woman and her family in bangladesh. the woman was interviewed in bangladesh by a british consular officer. she returned to england and explained that she did not need the court’s help and the proceedings came to an end. the common thread munby j concluded that all the decisions relating to the inherent jurisdiction had a common thread running through them. he explained that “the inherent jurisdiction can be invoked wherever a vulnerable adult is, or is reasonably believed to be, for some reason deprived of their capacity to make the relevant the denning law journal 267 decision, or disabled from giving or expressing a real and genuine consent. the cause may be, but is not for this purpose limited to, mental disorder or mental illness. a vulnerable adult who does not suffer from any kind of mental incapacity may nonetheless be entitled to the protection of the inherent jurisdiction if he or she is, or is reasonably believed to be, incapacitated from making the relevant decision by reason of such things as constraint, coercion, undue influence or other vitiating factors.” who may apply? according to munby j, applications for orders under the inherent jurisdiction may be made by anyone, including a local authority, who is not merely a stranger or an officious busybody, with a genuine and legitimate interest in the vulnerable adult’s welfare. it is not restricted to friends or relatives; the latter may well be the persons from whom the vulnerable adult most needs protection. the order munby j’s ambition was to ensure that ms sa had the best possible chance of future happiness by being allowed to marry and have children, and on her own terms. to that end, he made an order which would last until ms sa married or applied herself for it to be discharged. the terms of the order were detailed and extensive: the parents were prohibited from (a) physically harming, threatening, intimidating or harassing their daughter by themselves or through third parties; (b) preventing their daughter from communicating, via a bsl interpreter, with her solicitor; (c) applying for travel documents for their daughter, either by themselves or through third parties; (d) removing their daughter from the jurisdiction of england and wales without the express written consent, translated into bsl and notarized by their daughter’s solicitor; (e) making arrangements for their daughter’s marriage either by themselves or through third parties unless: i. the daughter gives her voluntary express written consent, translated and explained in bsl to her and notarized by her solicitor; case commentary 268 ii. the future bridegroom gives his voluntary written notarized consent to allow ms sa to return to her home town within 4 months of the marriage ceremony regardless of whether he has been given immigration clearance for himself, and, if he is given immigration clearance, to live in her home town with her; allow a visit by a worker from the british high commission in pakistan to visit within 4 months of any marriage ceremony to interview ms sa with a bsl interpreter to ascertain whether she wished to return to england. ms sa’s passport was ordered to be deposited with her solicitor and not to be released to her unless she has given her express written consent, translated and explained in bsl and notarised by the solicitor conclusions the decision in re sa demonstrates a sensitive attempt by munby j to deal with the cultural issue of arranged and, potentially, forced marriages, in the particularly difficult context of a mentally vulnerable adult. the decision shows a respect and support for arranged marriages where they are an important part of cultural expectations, whilst at the same time taking a strong stance against forced marriages. adult offspring of first generation immigrants often live divided lives across two cultures. outside home, they have adapted to a different set of cultural values from those which prevail within the home. it may prove difficult for them to protest against their parents’ wishes, relating to marriage, which conflict with their own. they may require help to cope with the problem. the inherent jurisdiction is clearly, at least theoretically, a useful, yet perhaps underused tool, within the panoply of solutions which have been proposed to help eliminate forced marriages (see http://www.fco.gov.uk). munby j’s judgment is not, however, entirely without problems. although his aim was to protect ms sa’s rights under the ehcr 1950, the order may actually limit her ability to safeguard those rights. first, it is evident that she will require her parents’ help in order to marry yet the terms imposed on them under the order may, in effect, impede them from arranging a marriage in pakistan. potential husbands with different cultural expectations about marriage may have difficulty in understanding the requirement that they must sign, and have notarized, legal documents relating to their future life with ms sa. second, the nature of the order inevitably imposes significant limits on ms sa’s right to privacy. although the court held that she could apply for the order to be discharged, it is questionable whether any court would do so if it believed her to be still at risk. finally, the decision draws attention to the problematic nature of mental http://www.fco.gov.uk the denning law journal 269 capacity to marry. munby j glossed over the dilemma of how an adult with the mental capacity of a thirteen year-old can be said to understand the complexities of the contract of marriage. he simply held that she had capacity. had he been prepared to extend the inherent jurisdiction still further to encompass decision making with respect to whether a specific marriage was in a vulnerable person’s best interests or for the court to consent to marriage on a vulnerable person’s behalf, he could have avoided stretching the test of capacity to marry to its limits. such a development would have improved the lives of the many mentally incapacitated adults who could benefit from both the emotional and practical advantages which marriage can offer. they are currently denied the benefits of marriage because of the limits placed on the ambit of the inherent jurisdiction. the inherent jurisdiction already gives the court the power to prevent an incapacitated person from entering into marriage and probably the power to help mentally incapacitated persons, who have entered into voidable marriages, to escape from them. if a voidable marriage can be shown to be damaging to the best interests of the mentally incapacitated spouse, it would be unacceptable to leave him or her trapped in that marriage. without the aid of the court, such persons would find it impossible to apply for a decree of nullity against their spouse’s will. it remains for another court to be courageous enough to develop the inherent jurisdiction still further. unincorporated associations: property holding, charitable purposes and dissolution 169 denning law journal 2012 vol 24 pp 169-176 case commentary boa v wada: harmonisation v self-regulation gregory ioannidis  introduction the area of anti-doping in sport has always been fascinating, exciting, as well as complicated and controversial. the two latter aspects have been entrenched, in case law and statutory law and the highest court in sport, namely the court of arbitration for sport (cas), in lausanne, switzerland. this court has had the opportunity to develop important principles of sports law. one of these principles is the subject matter of the present case commentary and relates to the principle of self-regulation. in other words, it examines the ability of sporting governing bodies to regulate their sport and concentrates on the legality of such self-regulation. in doing so, this case commentary will also examine the particular importance sports law jurisprudence attaches on the contractual relationship between sporting governing bodies and athletes. such analysis should help readers understand the nature of regulation in sport, as well as the reasoning behind the decision of the court of arbitration for sport in the case under analysis. the factual background the appellant in the present appeal was the british olympic association (boa), which is the national olympic association, responsible for all uk olympic teams. the boa is a company incorporated under the laws of england. the respondent is the world anti-doping agency (wada), a swiss private law foundation, whose headquarters are in montreal, canada, but whose seat is in lausanne, switzerland.  llb (hons), llm (sports law), phd (sports law), master of the moots, negotiation co-ordinator, faculty advisor for the bar of england and wales, advocate, senior lecturer in law, barrister (middle temple), university of buckingham. case commentary 170 the present commentary relates to an appeal brought forward by the boa against a decision reached by wada, to hold boa‟s bylaw of its rule 7.4 invalid. such bylaw does not allow for membership or selection of athletes who have, previously, served an anti-doping ban. the anti-doping bylaw states: “any person who is found to have committed an anti-doping rule violation will be ineligible for membership or selection to the great britain olympic team or to receive funding from or to hold any position with the boa as determined by the executive board in accordance with the boa's bylaw on eligibility for future membership of the great britain olympic team.” the new version of the above bylaw was ratified by the boa in 2009 and wada informed the boa, in november 2011 that such bylaw was not in compliance with the wada code. in particular, wada wrote to boa on 21 november 2011 stating: “…that the british olympic association has been determined to be non-compliant with the (wada) code because your rule on selection for the olympic games is an extra sanction, and non-compliant for the same reason the ioc eligibility rule was deemed non-compliant by the court of arbitration for sport.” this determination constituted the „decision‟ against which the boa appealed to the cas. the above determination by wada, came as a result of another cas award in the case of us olympic committee v international olympic committee, 1 (the usoc award), on 4 october 2011. in this case, the usoc challenged the validity of an ioc rule [ioc regulation] which stated: “any person who has been sanctioned with a suspension of more than six months by any anti-doping organisation for any violation of any anti-doping regulations may not participate…in the next edition of the games of the olympiad and of the olympic winter games following the date of expiry of such suspension.” the boa did not share wada‟s view and attempted to distinguish the usoc award from the present appeal. in various pieces of correspondence prior to the appeal, the boa stated that its bylaw made reference to a 1 us olympic committee v international olympic committee cas 2011/o/2422. the denning law journal 171 selection policy and it was neither a rule of ineligibility nor a sanction and, consequently, did not violate the wada code. as stated previously, wada informed the boa, on 21 november 2011 that its bylaw was not in compliance with the wada code and on 12 december 2011, the boa filed an appeal with the cas, pursuant to article 47 of the cas code of procedure. the boa requested cas to: 1) annul the wada decision, 2) rule that the bylaw is a selection rule and not a sanction rule and 3) rule that the bylaw is in compliance with the wada code. the boa was represented by baker & mckenzie llp who instructed lord pannick qc and adam lewis qc of blackstone chambers, whereas wada was represented by bird & bird llp and carrard & associés. the cas panel of judges, who heard the matter, comprised of richard mclaren (barrister in canada), michele bernasconi (attorney in switzerland) and david rivkin (attorney in usa). the parties’ merits and their submissions the boa, in an attempt to persuade the panel, produced several submissions regarding the interpretation of wada code, the interpretation of its own bylaw under appeal, as well as a distinction between the boa and other sporting governing bodies, such as the international olympic committee, in terms of creating rules and regulations. in summary, the boa‟s submissions could be summarised as follows: 2 i. construing the wada code to ascertain precisely what constraints it imposes on the actions and policies of the signatories; ii. assessing the true purpose, nature and effect of the bylaw to ascertain whether it is caught by those constraints; and iii. comparing the bylaw to the ioc regulation considered by cas in the usoc award. the boa‟s submissions, therefore, focused on the notion of the „proper‟ construction and interpretation of the bylaw and the wada code. the primary submission stated that the bylaw is not a sanction rule, but instead, a rule which relates to selection of athletes solely. in order to support this contention, the boa attempted to distinguish itself from the ioc and further stated that the wada code says nothing to indicate that an autonomous body 2 para 5.2 of the award. case commentary 172 such as the boa cannot establish rules that prohibit the selection of athletes. on a proper construction, the boa argued, its bylaw is different in nature from the original disciplinary sanction imposed as a consequence of the antidoping offence. 3 wada's submissions, on the other hand, sought the assistance of a previous cas award in usoc v ioc, 4 [the well-known award in favour of lashawn merritt]. in particular, wada argued that the application of the boa's bylaw on athletes is an additional sanction to a previous offence committed, as it is clear that such bylaw precludes athletes from participating in the olympics. wada also submitted that the boa's contentions that its bylaw is fair, necessary and appropriate cannot possibly be the subject matter of the present appeal. the real issue is whether the bylaw can be properly characterised as an additional sanction. if this is the conclusion of the court, then such bylaw cannot be in compliance with the wada code and, therefore, infringes article 23.2.2 of the code. 5 the panel’s decision the panel was cautious to acknowledge 6 that “both parties are strong advocates in the fight against doping” and that “boa and wada both recognise that doping is fundamentally contrary to the spirit of sport.” the panel summarised the main issue under consideration at paragraph 8.2 of its award and stated: “the dispute between the parties here involves one means of pursuing the fight against doping, not the fight itself. the bylaw prevents an athlete who has had a doping offence from being selected to represent the british olympic team. the core issue to be determined here is whether boa may pursue that policy on its own or whether that policy must be pursued, if it all, through the world-harmonised wada code.” the panel's reasoning is explicit in terms of the boa's acceptance of the wada code, as the boa is one of its signatories. the panel states at paragraph 8.12 of its award that the boa has agreed to limit its autonomy by signing the code and, therefore, accepting its terms. the panel makes the important point that the purpose of wada's existence is to harmonise different anti-doping rules and sanctions throughout the world. 7 if the boa 3 para 5.2 – 5.19 of the award. 4 usoc v ioc cas 2011/o/2422. 5 paras 5.36 – 5.68 of the award. 6 para 8.1 of the award. 7 the panel states at para 8.12: “however, noc‟s like boa have agreed to limit their autonomy by accepting the wada code. in particular, article 23.2.2 wada code, requires that its signatories, including noc‟s do not make any additional provisions in their rules which would change the substantive effect to any enumerated provisions the denning law journal 173 was allowed to operate independently and separately from wada, in terms of sanctions, such harmonisation (and the fight against doping) would assume the risk of being seriously undermined. the panel came to the conclusion that the effect of the bylaw is to make an athlete 'ineligible' for participation in the olympics. 8 it is submitted that such interpretation is correct and confirms the argument that the two issues in relation to the application of the boa's bylaw concern the 'eligibility' and 'participation' of athletes in sporting competitions. the panel, similarly, had no difficulty in finding that the boa's bylaw "renders an athlete ineligible to compete a sanction like those provided for under the wada code.” 9 . accordingly, the panel concluded that the boa's bylaw has the effect of a disciplinary sanction and it is, therefore, incompatible with the wada code. harmonisation v self-regulation it could be argued that such decision was to be expected, given that cas had already ruled on a similar matter only recently. 10 although the boa attempted to distinguish the two cases, the truth is that rules that 'prohibit' athletes from taking part in the olympics are disciplinary in nature and, therefore, constitute a sanction. in the present matter, the application of the boa's bylaw has as an aim to punish athletes, for the same offence, twice. with respect, the argument that the bylaw has a different nature, in a sense that it only prohibits selection, is of the wada code, including its sanctions for doping. the purpose of article 23.2.2 wada code is indeed the very purpose of the wada code: the harmonisation throughout the world of a doping code for the use in the fight against doping. this worldwide harmony is crucial to the success of the fight against doping. the wada code is intended to be an all-encompassing code that directs affected organisations and athletes. the wada code ensures that, in principle, any athlete in any sport will not be exposed to a lesser or greater sanction than any other athlete; rather, they will be sanctioned equally. by requiring consistency in treatment of athletes who are charged with doping infractions or convicted of it – regardless of the athlete‟s nationality or sport – fairness and proper enforcement are achieved. any disharmony between different parties undermines the success of the fight against doping. for these good reasons, nocs and other signatories agreed to limit their autonomy to act within their own spheres with respect to activities covered by the wada code.” 8 paragraphs 8.24 – 8.26 of the award. in particular, the panel states at para 8.24: “…disbarment from the team for life carries with it the direct consequence of never being able to participate in the olympics and as a consequence to compete in the games. that is the underlying reality of ineligibility.” 9 paras 8.26 and 8.33 of the award. 10 us olympic committee v international olympic committee cas 2011/o/2422 [the usoc award]. case commentary 174 flawed. one cannot dismiss the clear fact that the non-selection of an athlete, relates to and brings forward his inability to participate in the olympics. a bylaw which prohibits selection for non-sporting reasons and in relation to a previous offence only, for which a penalty has already been served, is indeed disciplinary in nature and gives rise to an additional sanction. one is, therefore, somewhat mystified by the boa's insistence on fighting a cause that was lost before it even reached the starting line. it is also difficult to understand why the boa ignored valid and comprehensive legal advice, which indicated to them that their case had no merits. further, it is hard for someone to apply and, indeed, accept, the merits of such an important appeal on arguments and submissions to the effect that the bylaw is necessary, fair and proportionate. these are not issues that come under consideration. on the legal advice given, the boa should have understood that they undertook a contractual obligation when they ratified and accepted the wada code. such obligation is valid, binding and continuous and the boa cannot retract from this obligation, at least, not because of arguments that focus on morality and jurisprudence. this appeal, it is submitted, was not an exercise of “what is wrong with doping” or “the sport needs to be protected.” it was an appeal regarding the legality of a specific regulation, whose application could have potentially affected important legal and sporting rights. irrespective of whether morality and legality come into the equation, the adherence to the wada code, by all stakeholders, is paramount, if certainty and transparency are going to be followed. any diversion from the code would seriously undermine both the code and all attempts to eliminate doping in sport. finally, the author cannot but remember that, back in 2008, he raised similar arguments against the ioc, when the latter prohibited his client katerina thanou from participating in the beijing olympics. ms thanou decided in the end not to proceed with legal action against the ioc (although the matter remains open) for reasons that cannot be analysed here. the argument remained, however, that rules which prohibit the eligibility and participation of athletes in the olympic games, in the absence of anti-doping offences, are incompatible with the olympic charter and the european convention on human rights. as it turned out, ms thanou was acquitted in the greek court of appeal of all criminal charges, as well as settling out of court with the iaaf (before cas in june 2006) on the disciplinary charges (the matter of iaaf v kenteris/thanou & segas 11 is unreported because of the out-of-court settlement) and there was, therefore, no valid justification for barring ms thanou from participating in the beijing olympics. 11 iaaf v kenteris/thanou & segas cas 2005/a/887. the denning law journal 175 conclusion it follows that the application of such rules violates not only the regulatory framework that the same sporting governing bodies have created, but most importantly, it violates the rights afforded to the athletes. it is not disputed that the intention of sporting governing bodies, by and large, is to protect the image of sport, the health of participants and to ensure that a level playing field is followed continuously. not many would disagree with these old, but well established justifications towards the application of sanctions for antidoping infractions. such justifications, however, cannot be used by sporting governing bodies as an excuse for diverting from the correct and proportionate application of their rules. sporting governing bodies have the advantageous position of creating the rules that athletes need to follow. the contractual relationship that is usually present between such governing bodies and athletes depends on the condition that athletes would follow the regulatory framework and accept its terms. in the absence of such acceptance, athletes cannot participate in competition. given that the regulatory framework of a governing body is drafted, created and applied in a unilateral way, it is submitted that it is only fair and just if governing bodies adhere to such regulatory framework themselves, without diverting from it. athletes follow the normative environment the regulator has created and a possible misapplication of the rules or any changes to such environment, without prior notice, could pose a breach to the relationship between governing bodies and athletes. in addition and where there is confusion in the application of the rules, such rules must always be interpreted contra preferentem against the party who drafted them. finally, it is submitted that breaches of rules and regulations by sporting governing bodies occur all the time. others occur intentionally, others because of negligence and others because of incompetence. all three categories have been examined repeatedly before several courts and tribunals. the need, therefore, for a practical solution is immense. the author has been advocating for years (via his phd research) in favour of the criminalisation of doping in sport. the author is a firm believer that sporting governing bodies cannot properly and efficiently regulate anti-doping in sport. as robert voy md has suggested in the past, allowing governing bodies to regulate testing procedures in sport is like having a fox guarding the hen-house. 12 when all stakeholders are in a position to understand why doping in sport is wrong (and only for the right reasons) then the only effective, transparent 12 r voy drugs, sport & politics (leisure press, 1991). case commentary 176 and appropriate response would be the application of criminal law on antidoping infractions. criminalisation of doping in sport would guarantee the correct and proper application of the sanctions and it would create a fair and proportionate response to the offence committed. it would further create a strong legal foundation which would respect the balance between the rights of the sport and those of the individual athletes. intro the denning law journal 141 the denning law journal vol 21 2009 pp 141-152 case commentary who has first claim on “the loyalty of the law”? smith v chief constable of sussex police; [2008] ukhl; 501 carol brennan* smith v chief constable of the sussex police (hereafter smith) was heard by the house of lords at the same time as chief constable of the hertfordshire police v van colle and another because they had two uniting factors. first, they both concerned the recurring question of the ambit of police liability in the situation described by lord bingham thus: “…if the police are alerted to a threat that d may kill or inflict violence on v, and the police take no action to prevent that occurrence, and d does kill or inflict violence on v, may v or his relatives obtain civil redress against the police, and if so, how and in what circumstances?”2 secondly, considering the cases together highlighted the wider issue of the relationship between decisions under the human rights act 1998 (hereafter the hra) and the development of the common law. the law lords embarked on a more extensive examination of these issues in smith and thus that case will be the exclusive focus of this note. in addition, the study of smith raises questions regarding proposals for law reform as well as about judicial perceptions of policy priorities. facts the action against the police in smith was brought solely under common law negligence and was heard by the courts on the defendants’ striking-out motion, with the facts treated as proved.3 the claimant, mr smith, had been the partner of gareth jeffrey. when the relationship became violent, they separated but in january 2003 jeffrey began a campaign of violent, abusive * llb (london school of economics), ma socio-legal studies, phd, barrister, lecturer in law, university of buckingham. 1 on appeal from [2007] ewca civ 325 and [2008] ewca civ 39. 2 smith [2008] ukhl 50, at para [1]. 3 in the case heard jointly, van colle, limitation restrictions meant that the action was based upon hra, s 8. case commentary 142 and threatening messages. in february alone some 100 text messages were received, some of which were explicit, eg “u are dead”. on february 24th mr smith reported the situation to the brighton police, who assigned two officers to the case. they immediately visited mr smith, who related the events to them. the police refused to look at the text messages smith offered to show them, took no notes and no statement from smith. they said that they would be tracing the calls and instructed smith to attend the police station to fill in the paperwork, which he did the next day. the death threats continued and the claimant went to london. he phoned brighton to check on progress of the case and was told that tracing the calls would take four weeks. he then went to savile row police station to report the ongoing threats. they made a call to brighton and were assured that the case was being dealt with. on his return to brighton on march 2nd smith told an inspector that he believed his life was in danger. he was told that the case was progressing well and smith should phone 999 if he feared for his safety. no note was made of the meeting. on march 10th jeffrey attacked mr smith with a claw hammer, causing three skull fractures and associated long-term brain damage. jeffrey was convicted of making threats to kill and causing grievous bodily harm and sentenced to ten years’ imprisonment. the background law there are two basic elements of law relevant to this case. the first concerns the way that the tortious common law duty of care is established in novel situations. according to lord bridge in caparo industries plc v dickman (elaborating upon the neighbour principle of donoghue v stevenson), the requirements for imposing a duty are foreseeability, proximity and that it be fair just and reasonable.4 the extension of duties into contested or novel areas, such as that of police liability, should only be done incrementally and by analogy with existing duty situations. it has been pointed out that when invoking the third limb of caparo, one is looking for positive reasons for recognising a new duty.5 the second element is that in the tort of negligence there is rarely a positive duty to act, in terms of protecting or warning, except where there are certain pre-existing relationships of control or the finding of an “assumption of responsibility”.6 4 [1990] 2 ac 605, at pp 617-18. 5 j steele tort law: text, cases and materials (oxford: oup, 2007). 6 carmarthenshire county council v lewis [1955] ac 549 is an example of the former and concerned an accident caused by a pupil of the defendant education authority. see also the recent case of mitchell v glasgow city council [2009] ukhl 11, below at n 56. the denning law journal 143 in smith the harm was caused to the victims by a third party, not by the police who only failed to intervene. this area is further affected by the traditional reluctance of the law of tort to impose onerous duties on public bodies, such as police service authority.7 it well is accepted that there is a non-problematic side to the negligence liability of the police. this is in the area of what can be described as civil operational tasks. there is no question that police drivers have a duty of care to other road users; additionally in cases such as knightley v johns8 and rigby v chief constable of northamptonshire9 they have been held liable for damage caused by the negligent carrying out of traffic control and use of cs gas respectively. the exact scope of the category in which this duty exists is of course debated and its boundaries were tested in alexandrou v manchester10 and ancell v mcdermott.11 outside this relatively narrow range of duty situations there has existed what is effectively an immunity for the police, which has prevailed in the general area of crime prevention and investigation since the case of hill v chief constable of west yorkshire.12 here the house of lords denied a claim brought by the mother of the last victim of the yorkshire ripper, the house of lords set out an array of policy reasons for denying a duty of care by police to crime victims who alleged that had it not been for the negligence of the police in investigating the series of murders, her daughter would not have died. the facts failed to reveal the necessary level of proximity between miss hill and the police and, while this would have been sufficient to deny duty of care, the house of lords adopted a “belt and braces” approach and additionally listed a number of policy factors which supported the denial. the most enduring of these will be discussed below. that the police should not owe a duty of care to potential victims when preventing and investigating crime was to be described as a “core principle” by lord steyn when hill was reviewed and endorsed by the lords almost two decades later in brooks v commissioner of police for the metropolis.13 here they upheld the striking out of an action in which a friend of stephen lawrence had attempted to use negligence to challenge his treatment at the hands of the police, as a witness and victim of crime; arguably widening the immunity to exclude duties to witnesses as well. 7 other key cases have involved local authority social service and planning departments, education, and emergency services. 8 [1982] 1 wlr 349. 9 [1985] 1 wlr 242. 10 [1993] 4 all er 328. 11 [1993] 4 all er 355. 12 [1989] ac 53. 13 [2005] ukhl 24 at para [30]. case commentary 144 in the years between hill and brooks, the element of human rights law imported a new perspective into the duty debate: first in the form of significant appeals to strasbourg and subsequently with implementation of the hra which incorporated actions based upon convention rights and jurisprudence directly into english law. the case of osman v ferguson14 featured facts with resonance for smith. a schoolteacher who developed an obsession with a pupil stalked him, as well as his family and friends, made violent threats and a number of attacks against property. this conduct was reported to the police and despite assurances that there would be protection, the campaign culminated in two deaths and two woundings. a negligence claim against the police was struck out by the court of appeal on the basis of lack of duty of care, on the basis of the hill “core principle”. there was, however, an appeal to the european court of human rights. (hereafter ecthr).15 in osman v united kingdom, there was held to have been a breach of art 6(1) “right to a court” in that the courts’ handling of the striking out procedure amounted to a blanket immunity in favour of the police.16 the important aspect was the view of the ecthr “that article 2 of the convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual.” 17 this “osman test” is discussed further below. the decision although the lords unanimously agreed that the facts of the case are very persuasive, by a 4-1 majority they rejected mr smith’s appeal and reasserted the hill “core principle”. although there is some agreement that not all of the hill policy reasons remain valid today, there ware two which still predominate. firstly, that the finding of a duty of care in negligence would result in “defensive policing” and secondly, that the pressure to respond to legal action by individuals would divert police resources away from the performance of their primary public duties.18 lord bingham supplies a strong dissent, motivated by a guiding principle which he has invoked in various duty of care debates: “the public policy 14 [1993] 4 all er 344. 15 osman v united kingdom [1999] 1 flr 193. 16 see z v uk [2001] 2 flr 612 where this decision was agreed to have been based upon a misconception about the meaning of duty of care and the function of the striking out procedure in domestic law. 17 at para [115]. 18 a third is that the more appropriate remedy is the use of the police internal disciplinary procedures, which featured in van colle. the denning law journal 145 consideration which has first claim on the loyalty of the law is that wrongs should be remedied.”19 he postulates what he calls a “liability principle”: “…if a member of the public (a) furnishes a police officer (b) with apparently credible evidence that a third party whose identity and whereabouts are known presents a specific and imminent threat to his life or physical safety, b owes a a duty to take reasonable steps to assess such threat and, if appropriate, take reasonable steps to prevent it being executed.”20 this liability principle is devised to cover the smith situation but not to directly encroach upon the decisions both hill and brooks of which lord bingham specifically approves. he distinguishes them from smith in that the first concerned an ex post facto inquiry into the conduct of a police investigation and the second concerned the treatment of witnesses and alleged victims of crime. the majority opinions in smith, however, found lord bingham’s liability principle would be difficult to apply in practice: what would be meant by an “apparently credible” or “a specific and imminent threat”? it is also too wide. lord hope notes that it would encompass threats to physical safety as well as life (although it is unclear how meaningful a distinction can be made between the two). it would appear, however, that the primary drawback is the threat it posed to the essence of the hill policies. both this aspect and lord bingham’s agreement with pill lj in the court of appeal that there is “strong case for developing the common law action for negligence in the light of convention rights”21 will be discussed below. comment the hill “core principle” the judicial approach to policy as a limiting factor in duty of care decisions, as it is embodied in the “fair, just and reasonable” component of the test for duty, is intrinsically fraught with subjectivity.22 despite the caparo exhortation to incremental development, unpredictability remains, and is perhaps exacerbated by the uncertain fit between the common law and human 19 at para [56]. he first voiced this position in x v bedfordshire county council [1995] 2 ac 633. 20 at para [44]. 21 at para [58]. 22 for a detailed consideration see j bell policy arguments in judicial decisions (oxford: clarendon press, 1983). case commentary 146 rights jurisprudence. assertions as to the potential impact on professional practice and the financial implications of decisions are rarely accompanied by empirical evidence.23 the capricious influence of policy was demonstrated in swinney v chief constable of northumbria police24 when it was concluded that there could be a duty of care towards police informers. in this case, which pushed the parameters of hill, hirst lj said, “the public interest would be affronted were it to be the law that members of the public should be expected in the execution of public service, to undertake the risk of harm to themselves without the police, in return, being expected to take no more than reasonable care to ensure that the confidential information imparted to them is protected.” 25 here, the common good was perceived in terms of protecting the police, their informers, the public purse, and, ultimately the criminal justice system; rather than compensating ordinary citizens who were let down by them. lords hope and carswell in smith confidently assert that “the interests of the wider community” (quoting lord steyn in brooks) lie in adopting the policy stance of hill and brooks to the facts under consideration.26 disturbingly, at the same time, they elaborate their positions in relation to domestic violence more generally. lord hope notes that domestic cases “are brought to the attention of the police all too frequently” and then notes the impact on police work elsewhere on giving undue attention to each complaint.27 lord carswell goes further: “one must recognise that police officers may quite properly be slow to engage themselves too closely in such domestic type matters, where they may suspect from experience the existence of a degree of hysteria or exaggeration on the part of either or both persons involved.”28 it is well known that the problem in domestic violence cases is not overreporting but rather under reporting.29 furthermore not only does some 23% 23 this is specifically acknowledged by lord phillips at para [102] where he proposes a statutory solution to the duty problem which he hopes may be informed by the law commission’s consultation paper no 187 (see below at p 6). an exception to the lack of evidence which supports policy decisions is provided in smith at para [111] by lord brown who quotes statistics on witness intimidation. 24 [1997] qb 464. 25 at p 487. 26 at paras [75] and [106] respectively. 27 at para [76]. 28 at para [107]. 29 the 1996 british crime survey found that of those who had been victimised in the previous year, only 17% had reported it to the police and half had not told anyone. the british crime survey: england and wales (london: home office, 1996) cited at http://www.homeoffice.gov.uk/rds/pdfs/hors191.pdf at p vii. for further details on http://www.homeoffice.gov.uk/rds/pdfs/hors191.pdf the denning law journal 147 of violent crime occur in domestic settings,30 but, apropos smith, the time of relationship breakdown is one of the most dangerous. given the fact that every week an average of two women in britain are killed by a partner or former partner and that one in four women and one in 6 men will suffer domestic abuse at some time in their lives, it is a disquieting interpretation of the public interest which leads the two law lords to their somewhat cynical position on the police response to the threats such as those in smith. the two enduring justifications for hill’s "core principle” require further thought. probably the most potent is that imposition of duty of care will have a deleterious effect on policing, in creating a “defensive frame of mind.”31 no evidence is put forward to support this hypothesis. given that the spectre of defensive practice arises in relation to all professions that are vulnerable to negligence claims, with medicine being the most prominent, it must be asked what is it about policing which sets it apart? when the issue is investigation and prevention of crime, the negative outcome envisaged would have implications for civil liberties in terms of increased surveillance, stop and search, arrest and even prosecution – impliedly on less than substantial grounds.32 in medicine, we know that defensiveness supposedly induced by negligence liability might lead to unnecessary expense or treatment – an impact on individuals and public resources different but not less profound than that hypothesised regarding policing. lord bingham believes that defensiveness, while a possible detriment in the hill-type investigative situation, would not apply to the protective function covered by his “liability principle”. he reiterates that all that is required of the police is what is reasonable in the circumstances. as with other professionals and callings, the enforcement of standards of care may be seen to lead to good practice. as michael jones said of social work, “the only ‘defensive’ strategy likely to succeed … is for the professional to exercise reasonable care in reaching a judgment as to the appropriate course of action to take.”33 the second main plank of the hill core is the concern that the existence of a duty of care would result in a significant diversion of police resources to fighting litigation. this must be a real and negative prospect although, again, its extent is not predicted by any empirical evidence. the potential amount of best practice police response to domestic violence see guidelines from the association of chief of police officers: www.acpo.police.uk/asp/policies/data/guidelines. 30 the british crime survey: england and wales (london: home office, 2000) cited in s choudhry and j herring “domestic violence and the human rights act 1998: a new means of legal intervention?” (2006) pl 752-84 at 752. 31 smith at para [30]. 32 as itemised by lord brown at para [132]. 33 m jones “case comment: child abuse: when the professional gets it wrong” (2006) med l rev 264 at 265. http://www.acpo.police.uk/asp/policies/data/guidelines case commentary 148 litigation would, of course, be affected by how stringent were the requirements around the threshold of breach and this would emerge with case law. lord brown recognises that this argument is weakened by the fact that the police are now having to contest human rights litigation.34 it must also be reiterated that police resources have long been required to meet ordinary “operational” negligence (and other legal) claims. three of the speeches made for the majority in smith diminish the integrity of their position on duty of care by refusing to reject the obiter suggestion made in brooks by lords steyn and nicholls that the police could be civilly liable to victims of crime in extreme circumstances. this may have been intended to indicate that there is no longer a blanket immunity of the sort disapproved in osman v uk and further undermined by the decision swinney. lord brown cites as an example of what lord steyn called “outrageous negligence”35 the case of edwards v united kingdom,36 where a remand prisoner was beaten to death by his cell-mate, despite calls for help. at the same time, while doubting the utility of the concept described for limiting police liability in negligence, lords carswell and phillips recognise the strength of the facts in smith and concede that the case might be approaching the hypothetical extreme described in brooks. there are two scenarios which the courts have regarded as trumping the arguments against the finding of a duty of care in our type of case. the first consists in a finding of assumption of responsibility.37 in smith, lord bingham partially bases his dissent on the proximity between the police and the claimant, saying that their visit to him, followed by the giving of advice, constituted an assumption of responsibility for his safety.38 lord brown also recognises the potency of assumption of responsibility when founded upon close relationships of quasi-employment and custody (in swinney and edwards respectively)39 and implies that this outweighs the hill core principle.40 the second occurs when proximity is created when a defendant, in an ostensibly non-duty situation, acts so as to aggravate the claimant’s loss. capital & counties plc v hampshire county council41 was a case in which a fire brigade was held to have assumed a duty of care to the owners of a 34 at para [137]. van colle itself is an example of a human rights action. 35 para [34]. 36 edwards v united kingdom (2002) 35 ehrr 487. 37 as discussed above, see n 4. this, of course, is a familiar concept used in determining duty of care in cases of pure economic loss. 38 at para [60]. 39 see also costello v chief constable of northumbria [1999] 1 all er 550 where the assumption of responsibility was based upon the employment relationship. 40 at paras [120]-[120]. 41 [1997] qb 1004. the denning law journal 149 premises when its members attended a fire and took the positive action of turning off a sprinkler system, thereby worsening the claimants’ position when the fire restarted. this ruling ran to counter to a general bias against imposing duties in negligence upon the emergency services.42 arguably, for the claimant in smith, his relationship with the police worsened his vulnerability. it is worth reflecting upon what measures for his own safety he might have taken, had he known the low level of care being exercised by the police. for instance he might have remained in london or gone into hiding. the facts in smith can, of course, be distinguished from those in capital and counties due to the difficulty to identifying a particular determinative act comparable to the turning off of the sprinkler system, however some degree of proximity is present and it is to be regretted that the assumption of responsibility possibility was not more fruitfully explored. common law vs convention rights the courts have yet to reach any resolution on the fundamental question of whether an overlap between common law and convention rights and duties provides an argument for deliberately developing the common law in conjunction with the convention or a reason not to do so (that is, the argument that when there is already a convention remedy a common law remedy would be redundant).43 lord bingham has been a proponent of the former view, which he put forward in a line of cases with parallels to the police cases in testing the possible duty of care owed by local authority social workers and medical personnel to children and parents affected by care proceedings. he was alone among the law lords in d v east berkshire community nhs trust in endorsing the ruling of the court of appeal that an immunity accorded to social workers in x v bedfordshire could no longer stand, in the light of the hra.44 in smith he says: “it seems to me clear, on the one hand, that the existence of a convention right cannot call for instant manufacture of a corresponding 42 see the other three cases decided along with capital and counties, ibid and oll v secretary of state for transport [1997] 3 all er 897. 43 hra, s 2(1) imposes upon the courts, in their decision-making, to have regard to strasbourg jurisprudence. this crucial debate has affected other areas of tort law such as privacy. see wainwright v home office [2004] 2 ac 406, douglas v hello! ltd [2001] qb 967 and campbell v mgn [2004] ukhl 22. detailed consideration of whether or not the human rights act 1998 is a “tort statute” is beyond the scope of this case note, however both van colle and smith clearly illustrate its implications and significance. 44 [2003] ewca civ 1151 at para [50]. case commentary 150 common law right where none exists.”45 however he goes on to summarise his position by referring to the court of appeal approach to smith46: “… i agree with pill lj in the present case that ‘there is a strong case for developing the common law action for negligence in the light of convention rights’ and also with rimer lj that ‘where a common duty covers the same ground as a convention right, it should, so far as practicable, develop in harmony with it’.”47 lord hope believes that the common law should stand “on its own two feet side by side” with the hra remedy48 and lord phillips implicitly concurs. lord brown makes the strongest case for maintaining a distinction between the common law and rights under the convention. arts 2 and 3 of the echr and ss 6 and 7 hra make it “simply unnecessary to develop the common law to provide a parallel cause of action…”49 furthermore he asserts that “convention claims have very different objectives from civil actions” with the former being to uphold human rights standards and to vindicate rights while the latter concerned primarily with compensation.50 it cannot be said that the alleged independence of the common law and hra tort spheres forms part of the ratio of smith and a tantalising debate unfortunately remains unresolved.51 law commission consultation paper no. 187 in his speech, lord phillips admits the difficulty courts have in finding a valid basis for their policy deliberations. for him, the question would be better dealt with by parliament and to that end he commends the recent publication of the law commission’s consultation paper no. 187 “administrative redress: public bodies and the citizen”.52 this paper is the latest product of an ongoing review of current means of redress, both public and private for “individuals who have suffered loss as a result of seriously substandard administrative action.”53 acknowledging the pressures imposed on public resources by a situation of generally expanding state liability, the paper makes proposals for reform of both judicial review and private actions in the civil 45 at para [58]. 46 [2007] ewca civ 325. 47 at para [58]. 48 at para [82]. 49 at para [136]. 50 at para [138]. 51 see, for instance, j steele “damages in tort and under the human rights act: remedial or functional separation?” (2008) clj 606. 52 http://www.lawcom.gov.uk/docs/cp187_web.pdf. 53 ibid at para [1.1]. the denning law journal 151 courts. these proposals are markedly similar, and for the purposes of the discussion the focus will be upon the private law aspect, as that is what would replace the tort system under consideration in smith. the hill-related species of action is an example which features prominently in the law commission’s justification for the need for reform. the paper refers to lords’ decision in van colle and smith, which was awaited at the time: “whichever way the issue is decided this time, the very fact that it is once again before the uk’s highest court illustrates the uncertain and unsettled nature of this area of law.” 54 the law commission proposes that a new statutory scheme be established based upon corrective justice principles and drawing upon the approach to damages of european union law. for private law actions the new scheme would apply only to defendants who were public bodies engaged in “truly public” activity in which they are “conferring a benefit”. there are seven other required elements of the “package”55 but for the purposes of this case note the most relevant is that of establishing “serious fault” by the public body. liability will not be imposed upon a public body unless its conduct has “fallen far below the standard expected in the circumstances.” speaking in tort terms, this shifts the focus from the question of duty of care to that of whether an existing duty has been breached. it is claimed that this is necessary to more appropriately balance “the interests of claimants with the competing demands made on public bodies.” the paper describes the factors which would be considered in the finding of a “significantly aggravated level of fault”, which must “go beyond illegality or negligence”. what is being proposed here is effectively raising the threshold for breach. this tactic of using a higher standard of care as a control mechanism, instead of duty of care, is one in which judicial indecision persists. it was specifically rejected by the house of lords in d v east berkshire and by the ecthr in osman v uk56. in smith, it has been seen above that lords carswell and phillips were reluctant to endorse lord brown’s suggestion that had this been an “extreme” case, (or “outrageous negligence”, as described in brook) a duty could be found. that also the finding of a duty of care by the police in swinney undermines the convention that duty, not breach, should be the means of upholding the hill “core principle” was unfortunately not commented upon or explored in smith. 54 at para [4.53]. 55 for example the reform of rules as to joint and several liability which currently burden the “deep pocket” defendants. in addition, the paper proposes the abolition of the torts of breach of statutory duty and misfeasance in public office. 56 the possibility of varying standards of care depending on the nature of the potential victim was also disapproved by the house of lords in van colle. case commentary 152 conclusion smith illustrates what for many is an uncomfortable juxtaposition of actions under the hra and common law tort. cases testing the area of police liability to victims of crime, along the question of whether there might exist positive duties to protect or warn, continue to nag at the collective legal conscience and are not satisfactorily resolved in smith. the decision in 2009 in mitchell v glasgow city council57 is evidence that these issues are not going to go away and will challenge the house of lords repeatedly. given the pressures on parliamentary time and the generally leisurely pace of law reform, it seems doubtful that the consultation paper, even assuming that its flaws can be addressed, will provide a convenient solution to the conundrum. failing that, it is tempting to endorse lord bingham’s mantra that wrongs should be remedied. this view is not “slightly meaningless”, as asserted by jane wright,58 but rather it indicates a clear conviction that the legal regime in this sector should be more generous to deserving claimants. 57 op cit at n 6. here, the house of lords rejected a claim (under both the common law and the hra) that a local authority landlord should be under a duty to warn tenants of a death threat. it was noted, however, that the case might not have reached the lords had the results in van colle and smith been known (para [78]). 58 j wright ‘the retreat from osman: z v united kingdom in the european court of human rights and beyond’ in d fairgrieve, m andenas and j bell eds tort liability of public authorities in comparative perspective (london: bicl, 2002) pp 79-80. case commentary facts the background law the decision comment the hill “core principle” common law vs convention rights law commission consultation paper no. 187 conclusion the denning law journal 1 denning law journal 2007 vol 19 pp 1-4 foreword susan edwards∗ abstract speech delivered by the editor, susan edwards, at the reception hosted by lord slynn, the chairman of the editorial advisory board, to celebrate the re-launch of the journal in the attlee room at the house of lords thursday 1 february 2007. i would like also to extend a warm welcome to you for being with us this evening to celebrate the relaunch of the denning law journal. i would like to begin by thanking lord slynn the chairman of our editorial advisory board. we are very honoured that lord slynn has agreed to accept this responsibility. lord slynn is an honorary professor of law at the university of buckingham and we are especially proud of this connection. when he joined one essex court as an international arbitrator, in 2005 upon retirement after fifteen years as law lord it was described as a “coup.” we think so too, when he accepted our invitation to chair the denning editorial advisory board. lord slynn is well known amongst lawyers for so many important developments in the law, and for his defence of freedom amongst other inviolable rights. dr jocelynne scutt (barrister and human rights lawyer) one of our international editorial advisory board members who in an email sending her best wishes to us for this evening related to me the many other important issues with which lord slynn is engaged and for which he is clearly revered internationally. for example, lord slynn has been one of several mps, lords and lawyers who have been calling for removal of the people's mojahedin organisation of iran from britain's list of terrorist organisations. it is true as dr martin luther king said, ‘our lives begin to end the day we become silent about things that matter.’ we thank you lord slynn. i would also like to thank our editorial advisory board members and also our assistant editors for making this relaunch possible. further thanks are also due to the publishing manager of the university of buckingham press, christopher woodhead. ∗ professor susan edwards ba, ma, phd, llm professor in law university of buckingham, barrister. door tenant, clarendon chambers. foreword 2 i want also thank all those who could not join with us tonight in celebrating this relaunch but have sent us their good wishes, amongst them, his hon justice kirby, high court of australia, sydney. in the very first edition of the journal in 1986 lord denning said this, "i am most embarrassed that they should have called it the denning law journal. i cannot think why, except that my judgements have often given rise to controversy and given the commentators something to write about." the spirit of controversy we promised to keep alive. we promised to continue the debate and discussion about common law issues, and we hoped that our academic engagement will have practical effects and consequence on the development of legal policy. we want to continue lord denning’s common sense approach to law, being tethered neither by precedent nor parliamentary interference. we have extended the remit of our journal, as indeed we must in a world where we have a responsibility for what happens in every corner of it. the new aim of the denning law journal is to reflect that social and legal responsibility. it aims to publish articles from the uk, the common law world; articles on domestic as well as international and comparative law. and of course the rapidly developing area of human rights law. we want also to tell the human rights stories and histories across the world to a generation of younger readers. as lord denning wrote in that first foreword: “since my retirement, i have spoken in the house of lords on legal subjects: such as abortion, diplomatic immunity, terrorism, police powers, judicial review, telephone-tapping, kerb-crawling, test-tube babies, surrogate motherhood, and pay rises. all these may be thought fit for discussion in the pages of this journal. our legislators would welcome all the help they can get.” perhaps we can bear that in mind. in our journal’s publications we want to honour lord denning’s example of clear accessible communicative style in his judgements in our writings. and to write in a language that is intelligible to all. lord denning was renowned for his clarity of expression: simple words and short sentences. the denning law journal will be true to the art of communication. the simplicity and clarity of his language played a major role in making the common law more accessible to the layman; we want to do the same. lord denning also believed that people will not be disposed to obey the law unless they are convinced that it is, on the whole, just and justly applied. this will be one of our key themes. lord denning in a later contribution to the the denning law journal 3 journal when referring to runnymede quoted a previous master of the rolls, archbishop langton who drafted magna carta: “no freeman shall be taken, imprisoned, be disseized, outlawed, banished, or in any wise destroyed. nor will we proceed against him or prosecute him, except by the lawful judgment of his peers, and by the law of the land.” and the guarantee of the due administration of justice: “to none will we sell, to no-one will we delay or deny right or justice.” those are the words which have come down through the centuries. and he would expect those principles to live on in eternity. lord denning also saw the danger of treating logic as the only basis for law. the denning law journal will continue to interrogate law within its socio-politico and historical context. and like so many of his judgements we want the denning law journal to be groundbreaking. we want to develop the journal in strength and we are particularly grateful to the denning law society chaired by sir martin nourse (who was not able to join us tonight) for offering to us their annual lecture for publication in the denning law journal. the denning law society is a strong society with many members and provides studentships each year. we are looking forward to developing closer links with the denning law society. tonight we welcome from the denning law society, robin hollington qc. robin is also a visiting professor of the university of buckingham and a member of our advisory board. the current volume and the whole archive back to the first volume published in 1986 is online and available to subscribers. we also plan an annual conference the proceedings of which will also be published in special issues of the journal. the first of which will take place in 2007 and will include among its speakers the noted human rights barrister edward fitzgerald qc; who could not be with us tonight as he is in paris at a conference. we would like to increase its frequency and make the journal a biannual publication. and we can do this with the support of our friends and colleagues. i have neither welcomed nor thanked our contributors. i have deliberately left that tribute until the end. probably they in fact are the most important foreword 4 because if it were not for the contributions past, present and future we would not have a journal to publish. last years, the 2006, volume we were particularly grateful to michael beloff qc, sir ivan lawrence qc, the hon justice michael kirby, (who is published in both the first and latest issue), lord lloyd of berwick, daniel machover and kate maynard, ademun odeke, ellia ciammaichella, visiting professor dr mary welstead, judith bray, olga thomas, frances burton and dr james slater. we want to continue to publish the important pieces but we also want to help nurture the gifted writers of the future by providing a forum in which first writers and student writers can publish. my message to you is simply this. the denning law journal is free to publish what it wishes; doctrinal, theoretical, empirical, comparative, historical. lord denning again in writing for the first issue of the journal quoted kipling: “whenever mob or monarch lays too rude a hand on english ways a whisper wakes, a shudder plays across the reeds at runnymede.” as an academic journal we are free, and as lord denning himself said in the foreword to the first edition, “it is of the first importance that there should be free and open discussions of the issues of the day”. buckingham is free from government funding which means we are also free from the tether of the research assessment exercise. this means that we can devise our own markers, assessment and criteria for scholarship. and this means i believe that we can publish the best arguments from academia and from practice and from politics. and that we can achieve a synergy between the law as conceptualised and the law as practiced. it means too that we can take a position about the law. to that end we encourage practitioners, the judiciary and academia to write for us in the denning. talk to us tonight, tomorrow by emails, letters or telephone about your ideas for articles and contributions. the denning has survived since 1986 we want it to be engaged in the debates of ten years, twenty years, one hundred years from now. please help us to continue to embarrass, in this sense to embarrass those who need to made an example of, help us to continue to court controversy for then we know we are relevant, help us to always create more of a whisper and a shudder far beyond the reeds of runnymede. i would now like to ask lord slynn to propose a toast. the denning law journal 5 denning law journal 2007 vol 19 pp 5-31 oppression of minority shareholders reflections on blisset v daniel robin hollington qc∗ abstract the leading modern case on the law relating to the rights of minority shareholders is the decision of the house of lords in o’neill v phillips,1 in which lord hoffmann, giving the only speech, appeared to place heavy reliance upon the seminal speech of lord wilberforce in re westbourne galleries ltd.2 the main purpose of this article is to compare and contrast the reasoning of lord hoffmann with that of lord wilberforce. it is proposed to begin with a close look at the old case of blisset v daniel,3 and to analyse the use to which that authority was put by lord hoffmann and lord wilberforce. it is proposed to conclude by considering the question whether the reasoning of lord hoffmann in o’neill v phillips is, or was indeed ever meant by him to be, of general or wide application.4 blisset v daniel blisset v daniel,5 like its better known elder sibling foss v harbottle,6 has had a remarkable influence on modern company law. it was an action before the then vice-chancellor (nowadays called “the chancellor” in anticipation of the abolition of the office of lord chancellor), sir w page wood, in the old court of chancery, whose workings were colourfully described in charles dickens’ novel “bleak house”. it concerned the affairs of a partnership business of melting and making copper, brass and mixed metals at bristol, swansea and elsewhere. the partnership deed contained a clause empowering the holders of at least two-thirds of the ∗ robin hollington qc is visiting professor of law at the university of buckingham and a barrister at lincoln’s inn. 1 o’neill v phillips [1999] 1 wlr 1092. 2 re westbourne galleries ltd [1973] ac 360. 3 blisset v daniel (1853) 10 hare 493. 4 it is a mystery why o’neill v phillips has not been reported in the appeal cases reports – perhaps this is some indication of its status as a decision on its facts! 5 see n 3 above. 6 foss v harbottle (1843) 2 hare 461. oppression of minority shareholders 6 partnership shares to expel a partner without cause and to purchase his shares at a value stipulated in the deed (which excluded any account of future profits). a two-thirds majority purported to expel a long-established partner. the long and short of it was that the vice-chancellor (with the greatest reluctance and finding it hard to believe that “gentlemen” could act with such harshness) concluded that the majority had no reason for his expulsion other than the desire to purchase his share at a favourable price. he therefore set aside the expulsion. blisset v daniel7 has had something of a chequered history, having been on occasions interpreted narrowly and distinguished.8 it was, however, wholeheartedly embraced by lord wilberforce in re westbourne galleries ltd,9 the well-known case on the scope of the just and equitable winding up remedy of the insolvency act 1986.10 it then was taken up by lord hoffmann in o’neill v phillips,11 the modern leading case on both the unfair prejudice (the companies act 1985)12 and the just and equitable winding up remedies, and was relied upon by him as an integral part of his analysis of the scope of those remedies. there are significant differences in the analyses of lord wilberforce and lord hoffmann respectively, and in their respective uses of blisset v daniel, 13and neither may be wholly satisfactory or provide a complete set of principles applicable to all cases. the factual context common to all three cases, and typical to disputes between majorities and minorities in companies, is the exclusion of the minority by the majority from participation in the management and profits of the company. exclusion can cover a multitude of circumstances, ranging from the clear case where a minority shareholder is removed as a director and sacked as an employee, to the less clear case where a minority shareholder leaves claiming to have been forced out, to the remote case where a minority shareholder with no management participation complains about the nonpayment of dividends coupled with the payment of excessive remuneration to the controlling shareholders. 7 see n 3 above. 8 see russell v russell (1880) 14 ch d 471; albert phillips v manufacturers securities ltd [1917] 116 lt 290, 297, where lord cozens-hardy m.r. stressed the freedom of a shareholder to exercise his rights selfishly and even maliciously. 9 re westbourne galleries ltd [1973] ac 360 (hl). 10 section 122(1)(g) of the insolvency act 1986. 11 o’neill v phillips [1999] 1 wlr 1092 (hl). 12 section 459 of the companies act 1985 now section 994 of the companies act 2006. 13 see n 3 above. the denning law journal 7 first it is desirable to make some general remarks about the rights of minority shareholders. protection of minority shareholders two cardinal principles of judge-made english company law are that in general the will of the majority shareholders binds the minority and shareholders are entitled to exercise their rights as shareholders in their own selfish interests. this reflects the fact that most companies are the vehicles for a purely commercial relationship between the joint venturers, who as businessmen expect their relationship to be governed essentially by the terms they have agreed between themselves as governing their association. there is, of course, no general duty of good faith as between contracting parties under english law of contract. the famous leading case on the above two cardinal principles is the decision of the privy council in north-west transportation v beatty.14 in that case the majority shareholder proposed to sell a ship to the company, a transaction which on its face raised a conflict of interest, and he procured the passing of a shareholders’ resolution authorising this purchase against the votes of all independent shareholders. it was held that the minority shareholders had no ground for complaint on the facts of the case, there being no allegation of actual impropriety beyond the existence of a conflict of interest. minority shareholders enjoy some protection against the tyranny of the majority under two statutory provisions: (i) section 459 of the companies act 1985, re-enacted as section 994 of the companies act 2006, on the ground that the affairs of the company have been conducted in an “unfairly prejudicial” manner; (ii) section 122(1)(g) of the insolvency act 1986, on the ground that it is “just and equitable” that the company should be wound up in each case, the principal remedy that the statute provides is a realisation of the minority shareholder’s interest in the company, in other words a divorce from the majority and a termination of their relationship through the vehicle of the company. 14 north-west transportation v beatty [1887] 12 app cas 589. under section 239 of the companies act 2006 wrongdoing directors can no longer ratify as shareholders their own breaches of duty. oppression of minority shareholders 8 the winding-up remedy has been part of the companies acts since 1862. the unfair prejudice remedy is of more recent origin and its principal purpose (even in its original form as section 210 of the companies act 1948) has always been to provide an alternative and less drastic remedy to the blunt instrument of winding up. it is now well established, and this is not doubted given its obvious sense as part of a rational and coherent set of legal principles, that, in general,15 the principles underlying the two remedies are essentially the same and the winding-up remedy is no wider than the unfair prejudice remedy: see o’neill v phillips:16 and re guidezone ltd.17 given that winding-up is a drastic remedy and that the court has much wider powers under section 459 (ie, to order one side to buy out the other at a fair value), the unfair prejudice remedy is nowadays by far the most important remedy available to a minority shareholder. to put the above statutory remedies into context, a minority shareholder has other sources of protection independent of those statutory remedies. these remedies are as follows: (i) the protection afforded by the articles of association and any shareholders’ agreement. (ii) the protection afforded by equity under its doctrine of “fraud on a minority”, including the right to bring derivative proceedings under what are called the “exceptions to the rule in foss v harbottle”.18 unless a minority shareholder has specifically bargained for a right to realise his investment in the company (as professional investors will often do), none of these non-statutory remedies enables a court to order the realisation of his investment. fraud on minority the scope of the equitable doctrine on “fraud on a minority” is controversial and, so far as decided cases are concerned, very limited. 15 there is an unresolved doubt as to whether the aggrieved minority shareholder, in order to obtain the winding-up remedy, needs to show that he has been prejudiced in his capacity as a member for the purposes of the winding-up remedy or that the misconduct complained of is conduct of the affairs of the company: see per lord wilberforce in re westbourne galleries [1973] ac 360 at p 375a-b. 16 see n 1 above. 17 re guidezone ltd [2000] 2 bclc 321. 18 see n 6 above. the denning law journal 9 shareholders do not in general owe any fiduciary duties to the company or their co-shareholders – shares are property rights which can be exercised for the selfish ends of their owners. but there are exceptional occasions when equity will intervene. the classic example is the right of a minority shareholder, by way of an exception to the rule in foss v harbottle,19 to bring a derivative action for the company’s benefit where the majority derive benefits from the company in colourable circumstances and stifle any claim to recover those benefits. the modern leading case on the scope of this exception is prudential v newman industries.20 derivative actions are now to be put on a statutory footing under the companies act 2006. this will give the courts the opportunity to widen the availability of derivative actions: whether the courts will take up this opportunity is open to doubt. the doctrine also encompasses the principle that, where passing special resolutions to alter the articles, the majority must act “bona fide for the benefit of the company as a whole”: per lindley m.r. in allen v gold reefs of west africa ltd.21 the notorious example of the weakness of this principle is greenhalgh v arderne cinemas,22 where the court refused to strike down a special resolution designed to confer an advantage on the majority by freeing them from the application of pre-emption provisions. the principle has been applied in cases where the majority have sought to expropriate the minority improperly: dafen tinplate co ltd v llanelly steel co.23 there is, however, some controversial support for an argument that the principle is of wider application, is not confined to the case of alteration of the articles and is based on general equitable principles derived from the law of partnership: clemens v clemens.24 in that case foster j, citing re westbourne galleries,25 struck down a proposed allotment of shares authorised by ordinary resolution of the members, on the ground that the majority’s purpose was not to raise capital but to dilute the interest of the minority. furthermore, in the well-known judgment of dixon j in peters american delicacy co ltd v heath,26 he drew an analogy between the exercise by a shareholder of its voting rights and the exercise by a mortgagee of its powers of sale, 27 although the conventional view is that equity will only draw such an analogy in special 19 see n 6 above. 20 prudential v newman industries (no. 2) [1982] ch 204. 21 allen v gold reefs of west africa ltd [1900] 1 ch 656, 671. 22 greenhalgh v arderne cinemas [1951] ch 286. 23 dafen tinplate co ltd v llanelly steel co [1920] ch 124. 24 clemens v clemens [1976] 2 all er 268. 25 see n 2 above. 26 peters american delicacy co ltd v heath [1938-1939] 61 clr 457. 27 ibid at 504. oppression of minority shareholders 10 cases, such as expropriation of the minority. he explained lord lindley’s test of “bona fide for the benefit of the company as a whole” in the following way: “the chief reason for denying an unlimited effect to widely expressed powers such as that of altering a company’s articles is the fear or knowledge that an apparently regular exercise of the power may in truth be but a means of securing some personal or particular gain, whether pecuniary or otherwise, which does not fairly arise out of the subjects dealt with by the power and is outside and even inconsistent with the contemplated objects of the power. it is to exclude the purpose of securing such ulterior and particular advantages that lord lindley used the phrase “bona fide for the benefit of the company as a whole”. the reference to “benefit as a whole” is but a very general expression negativing purposes foreign to the company’s operations, affairs and organizations. … [but no]one supposes that in voting each shareholder is to assume an inhuman altruism and consider only the tangible notion of the benefit of the vague abstraction called ‘the company as an institution’. an investigation of the thoughts and motives of each shareholder voting with the majority would be an impossible proceeding. when the purpose of a resolution is spoken of, a phrase is used which refers rather to some characteristic implicit in the resolution in virtue of the circumstances or of some larger transaction of which it formed a part or step”28 as will be seen below, this analysis of the basis of equitable intervention is remarkably similar to the analysis of page wood v-c in blisset v daniel.29 the conventional wisdom in the case of “quasi-partnerships”, ie companies which are in substance partnerships, typically incorporated partnerships where the parties have not consciously agreed the terms of their new association in the guise of a company, the conventional wisdom is as follows: (a) a minority shareholder and quasi-partner will be granted relief under the statutory grounds if he is excluded from management 28 ibid at 511-513. 29 see n 3 above. the denning law journal 11 by the majority, but that relief may be refused if the majority persuade the court that the dismissal of the minority was justified by his misconduct: mears v mears;30 re jayflex construction ltd;31 woolwich v milne.32 (b) absent exclusion of the minority from management, it is not sufficient merely that there has been a breakdown of the relationship of trust and confidence between the quasi-partners, unless of course the breakdown is caused by the wrongful conduct of the majority: o’neill v phillips;33 re guidezone ltd;34 larvin v phoenix;35 grace v biagioli;36 strahan v wilcox.37 the above conventional wisdom can be questioned. the “hard” officious bystander, who favours the sanctity of contract in commercial relations, would question whether an excluded minority shareholder should obtain relief if the majority excluded him in good faith in the interests of the company’s business: such was the view of a strong court of appeal in the westbourne galleries case.38 “quasi-partners” may start off with the expectation that each will be involved in the management, but circumstances change rapidly in business and how can it be said that it is outside the contemplation of the parties that circumstances may change which render it desirable that the majority exercise their power to remove the minority? if the test, therefore, is that of the content of the parties’ understandings, it is difficult to infer the existence of any absolute agreement or understanding between them that, defeasible only by proof of demonstrable fault on one side, the majority will not remove the minority. furthermore, the minority shareholder had the opportunity of protecting himself by bargaining for protection in a shareholders’ agreement and the court should not assist him if he has not succeeded in doing so. the “soft” officious bystander, on the other hand, would say that, in a company which was in substance a partnership without any specifically agreed partnership agreement, there should be a parting of ways, by winding up if necessary, if there had merely been an irretrievable 30 mears v mears [2002] 2 bclc 1. 31 re jayflex construction ltd [2004] 2 bclc 145. 32 woolwich v milne [2003] ewhc 414 (ch). 33 see n 1 above. 34 see n 17 above. 35 larvin v phoenix [2003] 1 bclc 76. 36 grace v biagioli [2006] bcc 85. 37 strahan v wilcox [2006] bcc 320. 38[1991] ch 799. oppression of minority shareholders 12 breakdown of relations, ie as if it were a partnership at will, particularly if this was the pre-existing relationship. if this were the law, this would obviate the unsatisfactory situation (arising under the conventional wisdom) where quasipartners fall out but the majority dare not exclude the minority, even if it is in the interests of the business to do so, for fear of being forced to buy him out. it would also obviate the need for a minute and undesirable dissection of the reasons for the breakdown, although there would have to be an exception for the case where the minority has so seriously misconducted himself that it would not be just to grant him relief or at any rate that his shares should be valued with a full discount for a minority shareholding. arguments based on economic utility in support of the “hard” and “soft” points of view respectively would be fairly evenly balanced. there is much to be said for the conventional wisdom as a rough and ready and fair compromise, but is it based on sound principles? the holy grail of a “middle way” in the 1990’s there was much discussion in the political arena of a “third” or “middle” “way” between the extremes of capitalism (the “right”) and socialism (the “left”). at the same time, there was a debate in the courts as to the principles which applied in determining whether a minority shareholder should be granted relief under the statutory remedies. parliament had framed these remedies in very broad terms and in effect left the courts to work out the principles to be applied. instinctively in this context, the courts declined to dispense palm-tree justice according to the whim and pleasure of the individual judge (or according to “the length of the chancellor’s foot”): not only does equity have an instinctive aversion to wide discretionary powers,39 but also, in a commercial context, it was important that the law was as certain and predictable as possible: see per warner j in re je cade & son ltd,40 cited by lord hoffmann with approval in o’neill v phillips.41 but it was also fairly clear from the legislative history at least of the unfair prejudice remedy, and acknowledged at an early stage, that, in enacting the statutory remedies, parliament had not merely intended to give the courts a wider battery of remedies (eg the power to make a share purchase order) for cases which, apart from the new statutory remedies, were already established as wrongs to the 39 see per harman lj in re caribbean products (yam importers) ltd [1966] ch 331, 346. 40 re je cade & son ltd [1992] bclc 213, 227. 41 see n 1 above. the denning law journal 13 minority: eg cases of “fraud on the minority” and breaches of personal rights as shareholders.42 so the search was for a middle way between the extremes of palm-tree justice and the remedying of existing wrongs. the courts flirted with the concept of a minority shareholder’s “legitimate expectations” as the foundation of his protection, a concept which was well-known in the public law context and derived some support from the speech of lord wilberforce in the westbourne galleries case:43 see eg per hoffmann lj in re saul d. harrison & sons plc.44 lord wilberforce had said: “the foundation of it all lies in the words "just and equitable" and, if there is any respect in which some of the cases may be open to criticism, it is that the courts may sometimes have been too timorous in giving them full force. the words are a recognition of the fact that a limited company is more than a mere legal entity, with a personality in law of its own: that there is room in company law for recognition of the fact that behind it, or amongst it, there are individuals, with rights, expectations and obligations inter se which are not necessarily submerged in the company structure. that structure is defined by the companies act and by the articles of association by which shareholders agree to be bound. in most companies and in most contexts, this definition is sufficient and exhaustive, equally so whether the company is large or small. the "just and equitable" provision does not, as the respondents suggest, entitle one party to disregard the obligation he assumes by entering a company, nor the court to dispense him from it. it does, as equity always does, enable the court to subject the exercise of legal rights to equitable considerations; considerations, that is, of a personal character arising between one individual and another, which may make it unjust, or inequitable, to insist on legal rights, or to exercise them in a particular way.”45 42 see per hoffmann j in re a company [1986] bclc 382, 387-388, and hoffmann lj in re saul d harrison & sons plc [1995] 1 bclc 14, 17-20. 43 see n 2 above. 44 re saul d harrison & sons plc [1995] 1 bclc 14, 19. 45 see n 2 above at 379. oppression of minority shareholders 14 o’neill v phillips – the “bargain” between shareholders that search for the holy grail of a middle way apparently came to an end with lord hoffmann’s speech in the house of lords in o’neill v phillips, 46 where lord hoffmann enunciated what have since been understood to be principles of general application to all cases where a minority shareholder sought to rely upon the statutory remedies. he recanted on his use of the concept of “legitimate expectations” in re saul d harrison & sons plc 47 but otherwise adopted what he had said in that case. he held that the courts should usually grant relief only in circumstances where there had been a breach of the terms on which the shareholders had agreed that the affairs of the company should be conducted (ie the articles of association and any shareholders’ agreement, together with general provisions of company law and statute), including (and this was new) any breach of fiduciary duty by the directors of the company without the restrictions of the rule in foss v harbottle.48 so, save to the extent that any breach of fiduciary duty by the directors was now a potential ground for relief (because it was treated as a breach of the terms of association, ie the “bargain” between the shareholders) and subject to the exception discussed below, lord hoffmann closed the door on a “middle way” and held that the petitioner had to show a breach of the terms of association, ie a wrong independent of the statutory remedies. but he did not close the door completely and recognised an exception: he held that exceptionally it would be appropriate to grant relief by applying equitable principles of good faith typically to be found in the law of partnership. however, in order not to open the door too far, he emphasised that the only applicable equitable principles were ones that were already “established”, “traditional” and “reasonably settled”, not general notions of fairness nor ones based on “legitimate expectations”. he explained what equitable principles he had in mind. in reaching his conclusions lord hoffmann relied upon the speech of lord wilberforce in the westbourne galleries case.49 lord hoffmann and lord wilberforce had each relied upon the same earlier lines of authority: first, the judgment of page wood v-c in blisset v daniel,50 which will be analysed in detail later (which, incidentally, was cited to lord wilberforce but not lord hoffmann); secondly, the judgment of smith j in re wondoflex 46 see n 1 above. 47 see n 44 above. 48 see [1999] 1 wlr at 1098d-1099b, and [1995] 1 bclc 14, 18. this has subsequently become controversial: see re chime corp ltd [2004] 3 h k l r d 922. 49 see n 2 above. 50 see n 3 above. the denning law journal 15 textiles pty ltd51 (which, incidentally, was cited to neither of them in argument). in a passage cited with approval by both lord wilberforce in the westbourne galleries case52 and lord hoffmann in o’neill v phillips,53 smith j had held: “it is also true, i think, that, generally speaking, a petition for winding up, based on the partnership analogy, cannot succeed if what is complained of is merely a valid exercise of powers conferred in terms by the articles: ……..to hold otherwise would enable a member to be relieved from the consequences of a bargain knowingly entered into by him: …….it would seem to follow that as a general rule a valid exercise of a power of exclusion conferred by the articles cannot afford a ground for winding up. but this, i think, is subject to an important qualification. acts which, in law, are a valid exercise of powers conferred by the articles may nevertheless be entirely outside what can fairly be regarded as having been in the contemplation of the parties when they became members of the company; and in such cases the fact that what has been done is not in excess of power will not necessarily be an answer to a claim for winding up indeed, it may be said that one purpose of [the just and equitable winding up remedy] is to enable the court to relieve a party from his bargain in such cases.”54 lord wilberforce expressed the same thought in these words: “a company, however small, however domestic, is a company not a partnership or even a quasi-partnership and it is through the just and equitable clause that obligations, common to partnership relations, may come in.”55 so, it is clear that, notwithstanding the dicta of foster j in clemens v clemens,56 the application of equitable partnership principles to companies was not something that equity managed on its own but was something that 51 re wondoflex textiles pty ltd [1951] vlr 458. 52 see n 2 above. 53 see n 1 above. 54 see n 51 above at 467. 55 see n 2 above at 380. 56 see n 24 above. oppression of minority shareholders 16 only the statutory remedies enabled. given the existence of the statutory remedies, however, this issue of the scope of equity does not matter. in the light of the analysis of smith j, approved by both lord wilberforce and lord hoffmann, the crucial question was: when was it appropriate to relieve a minority shareholder from the legal bargain he had made, ie the bargain to be found in the articles of association, any shareholders’ agreement, and the usual incidents of company law apart from the statutory remedies? lord hoffmann’s answer to that question in o’neill v phillips,57 leaving aside the case where breach of fiduciary duty by a director was in issue, was: it was only appropriate to relieve a minority shareholder from the bargain he had made where (1) it was appropriate to import equitable principles into the relationship and (2) the majority’s conduct was unconscionable under established equitable principles. so far as (1) was concerned, the label attached to companies where it was appropriate to import equitable principles is a “quasi-partnership”. so far as (2) was concerned, unconscionable behaviour in a “quasi-partnership” would “usually” be found in the breach of an agreement or understanding between the members (even if that was not a legally binding promise).58 other examples of unconscionable behaviour given by lord hoffmann were the maintenance of the association in circumstances where an event has occurred which puts an end to the basis of the association, and which the others can reasonably say they did not agree to.59 in summary, it is clear that lord hoffmann wanted the starting point of his analysis to be the “bargain” between the shareholders: in other words, a contract-based analysis. he recognised, however, that in exceptional circumstances the court might enforce promises between the shareholders which were not legally binding, but only under settled equitable principles. in most cases, that bargain would be found in what had actually been agreed in the articles of association and any shareholders’ agreement. although the evident intention of lord hoffmann was to introduce as much certainty as possible to claims of unfair prejudice, thereby significantly narrowing its scope, his reasoning obviously needs to be understood in the light of the facts of the case before him in o’neill v phillips.60 as one would expect, he chose his words carefully: “ ..i think that one useful cross check in a case like this is to ask whether the exercise of the power in question would be 57 see n 1 above. 58 see n 1 above at 1101. 59 see n 1 above at 1101-1102, cited at p 26 below. 60 see n 1 above. the denning law journal 17 contrary to what the parties, by words or conduct, have actually agreed” (emphasis added),61 ie it was only a cross-check, it was not the only cross-check, and in any event it was a cross-check that could usefully be applied on the facts of the case. the facts were that the petitioner had initially become a shareholder not as a partner but as an employee: he was a labourer promoted to management. the agreement very casually reached at the time of his initial promotion was that, so long as the petitioner managed the business for the principal shareholder, he would receive 50% of the “profits”, which were never defined. the business flourished and the profit-sharing arrangement operated, albeit imperfectly. circumstances changed, however, and the petitioner became in substance a working partner, because he agreed to the capitalisation of some of the profits rather than their distribution under the profit-sharing arrangement. the good times then came to an end, the majority shareholder felt that he had to retake control of the company, and, having obtained the minority’s consent to this new arrangement, he stated that henceforth the profit-sharing arrangement was at an end in accordance with their original agreement. the petitioner felt that he could not accept this sudden and unilateral termination of the profit-sharing arrangement, and he left the business. the majority shareholder denied any obligation to buy his shares out at a fair value. applying his “bargain” analysis, lord hoffmann held that there had been no breach of any promise made by the majority shareholder or of any other term of the association, because the profit-sharing agreement was expressly conditional upon his being relieved from running the business. the fact that the unilateral and peremptory withdrawal of the profit-sharing arrangement, which had been in operation for many years during which period the minority had agreed to the capitalisation of substantial profits, had serious financial consequences for the minority was not sufficient: such hardship did not suffice under traditional equitable principles because no unconditional promise had been made.62 furthermore, so lord hoffmann held, although it was proper to apply equitable principles to their relationship, the majority had not excluded the minority shareholder, who had elected to leave because the majority had exercised his express right to withdraw the profit-sharing 61 see n 1 above at 1101f. 62 it could be argued that lord hoffmann’s implicit conclusion, that the condition that the majority was relieved from running the business remained in force after such a long period and in such changed circumstances, was harsh; but commerce is not fair and his honour judge paul baker qc, the judge at first instance, made adverse comments in his judgment about the credibility of the petitioner. oppression of minority shareholders 18 arrangement in the new circumstances which prevailed upon his return to the management of the company. the westbourne galleries case westbourne galleries63 was an exclusion case. partners in a partnership at will agreed to incorporate the business: upon its incorporation, the majority shareholders had the statutory right (now section 168 of the companies act 2006) to remove any director from office and the right under the standard articles of association to decline to re-appoint a director retiring by rotation, but there was no evidence that the parties had given any thought at the time of incorporation to the existence of these powers. several years later, the parties fell out (without any obvious fault on either side) and the majority voted to remove the minority as a director. the minority sought a winding-up order on the just and equitable basis. the house of lords had no difficulty in attaching the label of a “quasipartnership” to this company and therefore importing equitable principles from the law of partnership. on the facts the shareholders were in substance partners: there was no evidence that the incorporation of the partnership business was understood by them to change the nature of their relationship the three classic characteristics of a quasi-partnership, and favouring the application of equitable principles, were listed by lord wilberforce as follows: “it would be impossible, and wholly undesirable, to define the circumstances in which these considerations may arise. certainly the fact that a company is a small one, or a private company, is not enough. there are very many of these where the association is a purely commercial one, of which it can safely be said that the basis of association is adequately and exhaustively laid down in the articles. the superimposition of equitable considerations requires something more, which typically may include one, or probably more, of the following elements: (i) an association formed or continued on the basis of a personal relationship, involving mutual confidence this element will often be found where a preexisting partnership has been converted into a limited company; (ii) an agreement, or understanding, that all, or 63 see n 2 above. the denning law journal 19 some (for there may be "sleeping" members), of the shareholders shall participate in the conduct of the business; (iii) restriction upon the transfer of the members' interest in the company so that if confidence is lost, or one member is removed from management, he cannot take out his stake and go elsewhere.”64 characteristic (ii) is the key element: (i) and (iii) will be much more common and not confined to cases of incorporated partnerships. lord wilberforce made further reference to the second characteristic, namely the understanding of management participation, later in his speech:65 “the just and equitable provision nevertheless comes to his assistance if he can point to, and prove, some special underlying obligation of his fellow member(s) in good faith, or confidence, that so long as the business continues he shall be entitled to management participation, an obligation so basic that, if broken, the conclusion must be that the association must be dissolved. and the principles on which he may do so are those worked out by the courts in partnership cases where there has been exclusion from management66 even where under the partnership agreement there is a power of expulsion.”67 but it is at this point in his speech that difficulties arise in lord wilberforce’s analysis and doubts arise as to precisely what the case decides. lord wilberforce could have stopped at this stage in his analysis and held that the petitioner was entitled to a winding up on the just and equitable basis because the majority had broken a fundamental agreement that the minority should be entitled to be involved in the management. the reasoning would go as follows: the partnership which had been converted into a company had been a partnership at will without any written partnership agreement; before the conversion each partner had the right of management participation; that right survived the conversion (and “trumped” the normal incident of incorporation that a director could be removed) because that reflected the substance of the parties’ relationship; the right of each party to terminate the relationship at will did not, however, survive the conversion, because that 64 see n 2 above at 379. 65 see n 2 above at 380. 66 citing const v harris [1824] tur & rus 496, 525. 67 citing blisset v daniel [1853] 10 hare 493; lindley on partnership, 13th ed (1971) pp 331, 595. oppression of minority shareholders 20 would be inconsistent with the new corporate structure. without much doubt, this is how lord hoffmann in o’neill v phillips68 understood the westbourne galleries69 case to have been decided, since otherwise it would not have fitted in with his analysis. however, lord wilberforce did not rest his judgment on this point. as lord wilberforce had well in mind, partnership cases establish that a partner cannot be excluded from management participation unless it is otherwise agreed between the partners: see lindley on partnership,70 cited by lord wilberforce in the above passage in his speech. as lord wilberforce took pains to acknowledge because of the statutory right of removal of directors and the normal provisions in the articles for retirement of directors by rotation71 the case before him was one where the shareholders had agreed otherwise, ie had agreed that the majority could exclude the minority. the crucial question was, according to lord wilberforce: “did he [the petitioner] establish a case which, if he had remained in a partnership with a term providing for expulsion, would have justified an order for dissolution?” [emphasis added] given the context, lord wilberforce must have been referring here to a general power of expulsion,72 as opposed to one only exercisable in the event of misconduct: such were the facts in blisset v daniel,73 upon which lord wilberforce founded his analysis. after posing the question, lord wilberforce quoted the findings of fact in the judgment at first instance and concluded: “reading this in the context of the judgment as a whole, which had dealt with the specific complaints of one side against the other, i take it as a finding that the respondents were not entitled, in justice and equity, to make use of their legal powers of expulsion and that, in accordance with the principles of such cases as blisset v daniel,74 the only just and equitable course was to dissolve the association. to my 68 see n 1 above. 69 see n 2 above at 380g-h. 70 see n 67 above at pp 331 and 594-595. 71 see n 2 above at 380. 72 lord cross in his speech assumed that an expulsion clause in partnership articles would be exercisable only in the case of misconduct ([1973] ac at p 386h), but this does not appear to have been lord wilberforce’s assumption. 73 see n 3 above. 74 see n 3 above. the denning law journal 21 mind, two factors strongly support this. first, mr. nazar made it perfectly clear that he did not regard mr. ebrahimi as a partner, but did regard him as an employee. but there was no possible doubt as to mr. ebrahimi's status throughout, so that mr. nazar's refusal to recognise it amounted, in effect, to a repudiation of the relationship. secondly, mr. ebrahimi, through ceasing to be a director, lost his right to share in the profits through directors' remuneration, retaining only the chance of receiving dividends as a minority shareholder. it is true that an assurance was given in evidence that the previous practice (of not paying dividends) would not be continued, but the fact remains that mr. ebrahimi was thenceforth at the mercy of the messrs. nazar as to what he should receive out of the profits and when. he was, moreover, unable to dispose of his interest without the consent of the nazars. all these matters lead only to the conclusion that the right course was to dissolve the association by winding up.”75 in a case where the partnership deed confers an express general power of expulsion of a partner, it is not the law that the exercise of that power will generally (absent misconduct) justify an order for the dissolution of the partnership. cases such as const v harris 76and blisset v daniel77 (the two cases referred to by lord wilberforce) are to the effect that, under traditional equitable principles, a power of expulsion, because it is expropriatory in nature without a corresponding duty to pay a fair value for the expelled partner’s share, must be exercised in good faith for the benefit of the partnership as a whole.78 the facts in blisset v daniel79 are summarised on page 5 above. the expelled partner commenced proceedings for reinstatement, alternatively for payment of the true value of his share of the partnership. page wood v-c struck down the expulsion firstly on the ground that it was impossible in the circumstances to carry out the stipulated valuation of the expelled partner’s share. the vice-chancellor, however, went on to strike down the expulsion 75 see n 2 above at 381 c-e. 76 see n 66 above. 77 see n 3 above. 78 see lindley & banks on partnership 18th edition (2002) at paragraphs 10-119 to 10-125. 79 see n 3 above. oppression of minority shareholders 22 on a second ground, namely that the majority had acted in bad faith.80 this bears a strong resemblance to the equitable doctrine of a fraud of the minority discussed above.81 so, a power of expulsion in a partnership agreement must be exercised in good faith for the benefit of the partnership as a whole. but, and here is the rub, lord wilberforce made it clear in the westbourne galleries82 case that it was not necessary for the minority to prove that the majority had acted in bad faith within this doctrine and it was on this very point that he disagreed with the court of appeal: “i must deal with one final point which was much relied on by the court of appeal. it was said that the removal was, according to the evidence of mr nazar, bona fide in the interests of the company; that mr. ebrahimi had not shown the contrary; that he ought to do so or to demonstrate that no reasonable man could think that his removal was in the company's interest. this formula "bona fide in the interests of the company" is one that is relevant in certain contexts of company law and i do not doubt that in many cases decisions have to be left to majorities or directors to take which the courts must assume had this basis. it may, on the other hand, become little more than an alibi for a refusal to consider the merits of the case, and in a situation such as this it seems to have little meaning other than "in the interests of the majority." mr. nazar may well have persuaded himself, quite genuinely, that the company would be better off without mr. ebrahimi, but if mr. ebrahimi disputed this, or thought the same with reference to mr. nazar, what prevails is simply the majority view. to confine the application of the just and equitable clause to proved cases of mala fides would be to negative the generality of the words. it is because i do not accept this that i feel myself obliged to differ from the court of appeal.”83 80 the facts of blisset v daniel bear a remarkable resemblance to the recent case of mullins v laughton [2003] ch 250, even to the extent that the businesses in both cases were based in bristol. in mullins v laughton a partnership was dissolved by the court in circumstances where the partners had acted in bad faith in exercising a power of expulsion. 81 see above at pages 8-10. 82 see n 2 above. 83 see n 2 above at page 381 f-h. the denning law journal 23 there is an echo in this passage of a main theme in lord wilberforce’s speech that the court should give full effect to the generality of the statutory words: see the following sentence in the earlier passage in his speech cited on page 13 above: “the foundation of it all lies in the words "just and equitable" and, if there is any respect in which some of the cases may be open to criticism, it is that the courts may sometimes have been too timorous in giving them full force.” it is not easy to reconcile lord wilberforce’s apparent finding that the majority had acted in bad faith in accordance with blisset v daniel principles84 with his later statement that the majority may well have acted in good faith in the interests of the company.85 it may be theoretically possible that partners can at the same time act in good faith in the interests of the partnership and with bad faith towards the expelled partner (eg because they does not even recognise him as a partner). however, it is a reasonable assumption that lord wilberforce was not intending to reverse the decision of the court of appeal on the narrow basis of a factual finding that the majority had failed to recognise the minority as a quasi-partner. the case has not been understood as turning on any such finding – if it had been so understood, then the conventional wisdom would be that, in expulsion cases, the minority has to show that the majority acted in breach of the duties of good faith that a partner owes to his co-partners. the only fair conclusion is that lord wilberforce was saying that the just and equitable remedy enabled the court to grant relief in circumstances going beyond established equitable principles. it is clear that lord wilberforce was going significantly beyond what was actually decided in the wondoflex case.86 in that case smith j said that it would have been a “question of some difficulty” to determine whether a winding up order should be made if the majority had acted in good faith. he granted a winding up order because he found as a fact that the majority had acted in bad faith. whereas lord wilberforce used blisset v daniel87 as authority for the proposition that a power of expulsion must be exercised in good faith and not for any selfish motive, in o’neill v phillips88 lord hoffmann, whilst acknowledging that fact, cited it as authority for a different and novel purpose: 84 see n 3 above at 381 c. 85 see n 3 above at 381 g-h. 86 see n 51 above. 87 see n 3 above. 88 see n 1 above. oppression of minority shareholders 24 “an example of such equitable principles in action [upon which the court decides that the conduct is unjust, inequitable or unfair for the purposes of the statutory remedies] is blisset v daniel89 (1853) 10 hare 493 to which lord wilberforce referred in in re westbourne galleries ltd.90 page wood vc held that upon the true construction of the articles, twothirds of the partners could expel a partner by serving a notice upon him without holding any meeting or giving any reason. but he held that the power must be exercised in good faith. he said,91 that "the literal construction of these articles cannot be enforced" and, after citing from the title "de societate" in justinian's institutes, went on, at pp 523-425: "it must be plain, that you can neither exercise a power of this description by dissolving the partnership, nor do any other act for purposes contrary to the plain general meaning of the deed, which must be this that this power is inserted, not for the benefit of any particular parties holding two-thirds of the shares, but for the benefit of the whole society and partnership . . ." ………..[t]here is more than one theoretical basis upon which a decision like blisset v daniel92 can be explained. nineteenth century england law, with its division between law and equity, traditionally took the view that while literal meanings might prevail in a court of law, equity could give effect to what it considered to have been the true intentions of the parties by preventing or restraining the exercise of legal rights. so smith j93 speaks of the exercise of the power being valid "in law" but its exercise not being just and equitable because contrary to the contemplation of the parties. this way of looking at the matter is a product of english legal history which has survived the amalgamation of the courts of law and equity. but another approach, in a different legal culture, might be simply to take a less literal view of "legal" construction and 89 see n 3 above. 90 see n 2 above at 381. 91 see n 3 above at 523. 92 see n 3 above. 93 in the wondoflex case see n 51 above. the denning law journal 25 interpret the article themselves in accordance with what page wood v-c called “the plain general meaning of the deed.” or one might, as in continental systems, achieve the same result by introducing a general requirement of good faith into contractual performance. these are all different ways of doing the same thing. i do not suggest there is any advantage in abandoning the traditional english theory, even though it is derived from arrangements for the administration of justice which were abandoned over a century ago. on the contrary, a new and unfamiliar approach could only cause uncertainty. so i agree with jonathan parker j when he said in in re astec (bsr) plc:94 “in order to give rise to an equitable constraint based on ‘legitimate expectation’ what is required is a personal relationship or personal dealings of some kind between the party seeking to exercise the legal right and the party seeking to restrain such exercise, such as will affect the conscience of the former.” this is putting the matter in very traditional language, reflecting in the word "conscience" the ecclesiastical origins of the long-departed court of chancery. as i have said, i have no difficulty with this formulation…” critique the analysis of lord wilberforce in the westbourne galleries95 case is not wholly consistent with the analysis of lord hoffmann in o’neill v phillips.96 lord hoffmann identified the true basis of the decision in the former case as being that (a) it was right to apply equitable principles borrowed from the law of partnership insofar as they were compatible with the new and permanent corporate structure, and (b) there had been a breach of the minority’s fundamental right, recognised under the law of partnership and not expressly excluded by the parties, to management participation. lord hoffmann held that this analysis, ie the application by analogy of traditional equitable principles, provided the answer to the facts of the case before him. however, it does not necessarily follow that he meant that established 94 in re astec (bsr) plc94 [1998] 2 bclc 556, 588. 95 see n 2 above. 96 see n 1 above. oppression of minority shareholders 26 equitable principles provided the answers in all cases, although this is not a point made in any subsequent case: see eg the recent statement of general principle by the court of appeal in grace v biagioli.97 it is apparent from the passage in the speech of lord hoffmann in o’neill v phillips98 that he was conscious of the difficulties of a “one theory fitting all cases” solution. he nevertheless suggested obiter, with the citation of virtually no authority, that other cases fell within his “bargain” analysis. he said this: “i do not suggest that exercising rights in breach of some promise or undertaking is the only form of conduct which will be regarded as unfair for the purposes of section 459. for example, there may be some event which puts an end to the basis upon which the parties entered into association with each other, making it unfair that one shareholder should insist upon the continuance of the association. the analogy of contractual frustration suggests itself. the unfairness may arise not from what the parties have positively agreed but from a majority using its legal powers to maintain the association in circumstances to which the minority can reasonably say it did not agree: non haec in foedera veni. it is well recognised that in such a case there would be power to wind up the company on the just and equitable ground (see virdi v abbey leisure ltd)99 and it seems to me that, in the absence of a winding up, it could equally be said to come within section 459. but this form of unfairness is also based upon established equitable principles and it does not arise in this case.”100 the principles enunciated in lord hoffmann’s speech (ie the bargain between shareholders subject to established equitable exceptions) should not, however, be taken as the answer to all cases, for a number of reasons: (a) that cannot have been lord hoffmann’s intention because otherwise his principles would suffer from an internal inconsistency. 97 grace v biagioli [2006] 2 bclc 70, 92. 98 see n 1 above at 1101e-h. 99 virdi v abbey leisure ltd [1990] bclc 342. 100 see n 1 at 1101-1102. the denning law journal 27 (b) contrary to a main theme of lord wilberforce’s speech in the westbourne galleries case,101 those principles fail to give “full effect” to the generality of the statutory words and amount to judicial legislation. (c) it is not easy to discern the settled or traditional equitable principles that lord hoffmann was referring to. (d) as appears from the passage in his speech at page 1101f cited on pages 16-17 above,102 lord hoffmann himself was conscious that he was not legislating for all cases. so far as (a) and (b) are concerned, on the one hand lord hoffmann held that resort could only be had to “settled” or “traditional” equitable principles. on the other hand he also said in re saul d harrison & sons plc103 in the passage cited below that parliament’s intention in enacting the unfair prejudice remedy had been to free the courts from the limitation of having to find that the case fell within the exceptions to the rule in foss v harbottle.104 but those exceptions are based on the doctrine of “fraud on the minority”, an equitable doctrine par excellence. “the answer to this question often turns on the fact that the powers which the shareholders have entrusted to the board are fiduciary powers, which must be exercised for the benefit of the company as a whole. if the board act for some ulterior purpose, they step outside the terms of the bargain between the shareholders and the company. as a matter of ordinary company law, this may or may not entitle the individual shareholder to a remedy. it depends upon whether he can bring himself within one of the exceptions to the rule in foss v harbottle [1843] 2 hare 461. but the fact that the board are protected by the principle of majority rule does not necessarily prevent their conduct from being unfair within the meaning of s 459. enabling the court in an appropriate case to outflank the rule in foss v harbottle was one of the purposes of the section. so in re a company (no 00370 of 1987), ex p glossop [1988] bclc 570, [1988] 1 wlr 1068, where the complaint was of a consistent refusal by the board 101 see n 2 above. 102 see n 1 at 1101 f. 103 see n 44 above. 104 see n 6 above. oppression of minority shareholders 28 to recommend payment of a dividend, harman j said that such conduct could make it just and equitable to wind up the company. he did so by reference to the seminal judgment of lord wilberforce in howard smith ltd v ampol petroleum ltd [1974] 1 all er 1126, [1974] ac 821 on the principles by which the court decides whether the board has acted within its fiduciary powers and said that on the facts alleged it was arguable that the board had exceeded them. this seems to me in principle the correct point at which to start the inquiry into both whether the conduct in question could justify a just and equitable winding up and also whether it is unfair for the purposes of s 459. it seems clear that but for a technical objection which was removed when the section was amended in 1989, harman j would have allowed the petition to proceed on both grounds, as peter gibson j did before the amendment in re sam weller & sons ltd [1990] bclc 80, [1990] ch 682. i should however add that while i respectfully think that harman j was right in asking himself whether the board had abused its fiduciary powers, i would not necessarily subscribe to the theory of corporate hubris on which he decided that it arguably had. although one begins with the articles and the powers of the board, a finding that conduct was not in accordance with the articles does not necessarily mean that it was unfair, still less that the court will exercise its discretion to grant relief. there is often sound sense in the rule in foss v harbottle (1843) 2 hare 461. in choosing the term 'unfairly prejudicial', the jenkins committee (para 204) equated it with lord cooper's understanding of 'oppression' in elder v elder and watson 1952 sc 49: ‘a visible departure from the standards of fair dealing and a violation of the conditions of fair play on which every shareholder who entrusts his money to a company is entitled to rely.’ so trivial or technical infringements of the articles were not intended to give rise to petitions under s 459.” thus, it may be doubted whether, if the purpose of the statutory remedy was to outflank a settled equitable doctrine, it was also parliament’s intention that in all other respects settled equitable principles should reign supreme. the denning law journal 29 lord wilberforce did not himself believe that he was applying traditional equitable principles in the westbourne galleries105 case – on the contrary, he went beyond such principles. even if that case is analysed in the way suggested on page 25 above, it is very difficult to see how such an analysis is based on traditional equitable principles. in any event, since the analysis is that of the application of equitable principles by analogy, the argument in favour of sticking to the settled equitable principles (developed ex hypothesi in a different context) is fundamentally weakened. so far as (c) is concerned, lord hoffman must have had in mind in the passage cited on p 26 above the line of authority to the effect that a court will wind up a company on the just and equitable basis where the whole substratum of the company has gone. but this ground for winding up is a narrow one: re perfectair holdings ltd.106 lord hoffmann referred in o’neill v phillips,107 as an example of a settled equitable principle, to the happening of “some event which puts an end to the basis upon which the parties entered into association with each other, making it unfair that one shareholder should insist upon the continuance of the association”, but that formulation, divorced from settled equitable principles, comes close to returning to a test of mere unfairness. indeed, in the recent case of re metropolis motorcycles ltd,108 mann j came close to applying that formulation as one merely of fairness – it was not suggested before him that he was guided by any earlier authority. as to the factual situations in other cases of alleged minority oppression, lord hoffmann did not disapprove of the result in any previous decided case on the statutory remedies and he did not seek to explain how any such case (other than the westbourne galleries case)109 could be fitted within his analysis. one recent example of the difficulties that would arise if lord hoffmann’s analysis were to be taken as applicable to all cases may be cited. it concerned the common allegation of minority oppression that the majority favour themselves by paying themselves excessive remuneration and paying inadequate dividends to shareholders: a remote example of exclusion of the minority. such had been the allegation in two of the cases cited by lord hoffmann in the passage in his judgment in re saul d harrison & son plc110 cited above and explained there as cases of breach of fiduciary duty. under lord hoffmann’s principles, the petitioner had to establish that the directors 105 see n 2 above. 106 [1990] bclc 423. 107 see n 1 above. 108 re metropolis motorcycles ltd [2006] ewhc 364 (ch). 109 see n 2 above. 110 see n 44 above. oppression of minority shareholders 30 had acted in breach of their fiduciary duties, which in most cases will require proof of bad faith on the part of the directors. however, prior to o’neill v phillips111 it had never been held that bad faith or breach of fiduciary duty needed to be shown. the prevailing view was that expressed by sir richard scott v-c (as he then was) in re a company,112 to the effect that the relevant standard, against which the fairness of the majority’s conduct was to be judged, was “objective commercial criteria” of the proper level of remuneration. in the recent case of re campbell irvine (holdings) ltd,113 blackburne j applied the test of “objective commercial criteria” rather than the test of good faith. conclusion it is submitted: (i) the test of the “bargain” between shareholders, as supplemented by traditional equitable principles, which was enunciated by lord hoffmann in o’neill v phillips,114 is sufficient to decide many cases of minority oppression, particularly those where a minority claims that the majority have broken a promise. (ii) that test was not intended and should not be taken as governing every case and factual circumstance. it may be the starting point of the analysis in a given case, but it is to be considered in the light of other lines of authority in factual contexts closer to the case in point than that in o’neill v phillips.115 it is always worth remembering lord upjohn’s wise words in phipps v boardman: “rules of equity have to be applied to such a great diversity of circumstances that they can be stated only in the most general terms and applied with particular attention to the exact circumstances of each case.”116 111 see n 1 above. 112 re a company (no. 004415 of 1996) [1997] 1 bclc 479. 113 re campbell irvine (holdings) ltd [2006] ewhc 406 (ch). 114 see n 1 above. 115 see n 1 above. 116 phipps v boardman [1967] 2 ac 46, at 123. the denning law journal 31 (iii) there is an inconsistency between the reasoning of lord wilberforce in westbourne galleries117 case and that of lord hoffmann in o’neill v phillips,118 which can only be resolved by the house of lords. one is left with the strong suspicion that, had the earlier case come before lord hoffmann rather than lord wilberforce, he would have dismissed the appeal and approved the reasoning of the very strong court of appeal below,119 on the basis that there was no unconscionability on the part of the majority under traditional equitable principles. in that event, the rights of minority shareholders would have been even narrower than they are now. where does this leave the “conventional wisdom” discussed on pages 10 – 12 above, ie the grounds upon which a court will grant relief in the case of a breakdown of relations in a quasi-partnership? it is submitted that there is no over-arching general test applicable to all cases of unfair prejudice. the search for any holy grail, be it a “middle way” or an extremer version, is pointless. just as the courts adopt an incremental, case-by-case, commonsense and practical approach in common-law negligence cases, so it is submitted they should adopt a similar approach in unfair prejudice cases. the “conventional wisdom” can be seen to strike a fair balance in a commercial context between competing interests and therefore is to be commended. that “fair balance” of competing interests is to be looked for in other factual contexts where a minority shareholder claims to have been oppressed. 117 see n 2 above. 118 see n 1 above. 119 [1971] ch 799. preshipment inspections of goods at common law and under the wto regimes the denning law journal 115 double invoicing in international trade: the fraud and nullity exceptions in letters of credit – are the america accord and the ucp 500 crooks’ charters!?* ademun-odeke ** abstract this article: first, (a) re-examines the fraud exception rule in letters of credit transactions with specific reference to the united city merchants v royal bank of canada (the american accord) and against the background of a recent commonwealth decision accepting nullity as a new exception; (b) evaluates its impact on over/under invoicing under the wto agreement on pre-shipment inspection of goods in international trade (psi); and (c) assesses its implication on the imf agreement on exchange control implemented in the uk by the imf agreement regulations 1946 made under the imf agreement acts 1945 as amended. secondly, it argues that the current ucp 500 is outmoded and inadequate to meet current needs and is therefore in need of urgent revision. thirdly, it recommends, inter alia, that in accordance with the said commonwealth decision, fraud by third parties should be recognised by english law as an independent and separate nullity exception. fourth, and finally, it concludes that the status-quo acts as an unwitting crooks’ charter for money launderers, documentary fraudsters and other white collar crimes. introduction the house of lords delivered a landmark judgement in 1982 which did attract the notice it deserves but was later to have a profound effect on the letter of credit jurisprudence. although there had been a number of english and world decisions on the subject especially in the 1970s, no case also demonstrates the development and reasons for over invoicing in international trade as did the american accord.1 the case dealt with many aspects of letters * the author is grateful to professor roy goode of the university of oxford, professor charles debattista of the university of southampton and professor john carter of the university of sidney for reading through earlier the draft of this article and making valuable comments. however the author bears ultimate responsibilities for views held and any short-comings herein. ** llb; llm; phd; miex; companion ni. bournemouth law school, institute of business and law, university of bournemouth. the denning law journal 116 of credit, the principle means of payments in international trade. little over a decade later (1994), the wto finalised the agreement on preshipment inspection of goods in international trade (psi).2 an essential aspect of the psi agreement is prevention of doubleand under invoicing. although english courts are familiar with psi and experienced in dealing with fraud exception and exchange control regulation cases, this was the first time all three had been subject of an english court decision. the case is important for other reasons too. first, and hitherto, courts had dealt with fraud committed by the sellers and/or their agents and assignees but not by third parties. secondly, the case came at an opportune time when the international finance community was grappling with the menace of money laundering, documentary frauds and other white collar crimes. thirdly, although earlier attempts in english courts had failed,3 there has ever-since been a commonwealth decision4 that has accepted nullity as a separate and independent exception in addition to fraud exception. the aim of this article is, therefore, seven folds: first, to re-examine the house of lords’ decision in the american accord and to reassess english law on fraud exception. the article argues that the court appeal’s decision, reversed by the house of lords, was the correct one. secondly, to postulate 1 united city merchants (investments) ltd and others v royal bank of canada (vitrorefuerzos sa and others, third parties) [1981] 3 all er 142 (court of appeal); and united merchants (investments) ltd and others v royal bank of canada and others [1982] 2 all er 720 (house of lords); for annotation of the case see the digest (annotated british, commonwealth and european cases), 2nd reissue vol 39(3) para 5251 at pp 535-536; 2 for the agreement on pre-shipment inspection of goods in international trade see, the wto uruguay round agreements, agreement establishing the wto signed in marrakesh, 1994, annex 1a, multilateral agreements on trade in goods, preshipment inspection. 3 see eg the court of appeal case of montrod ltd v grundkotter fleischvertriebes gmbh and another [2002] 1 all er (commercial) 257, ca; and czarnikow-rionda sugar trading inc. v standard bank of london ltd and others [1999] 1 all er 890 (commercial); current law yearbook, sweet and maxwell vol1999(1) para 279 p 80 where rix j’s approach was to look at the balance of convenience at to which innocent party , the confirming bank or the applicant, would suffer most and/or irreversibly if the injunctions was upheld or discharged. the judge came down, heavily in support of the principle that the court should interpret its right intervene in cases of fraud restrictively and discharged the injunction; and banco santander sa v bayfern ltd [199] 2 all eer 18 where langely j, having considered the american accord at length took the view that once a fraud has been committed the court would intervene even if this meant penalising the innocent confirming bank than the fraudster. 4 see the singapore supreme court case of beam technologies v standard chartered bank [2003] 1slr 597 the denning law journal 117 whether, if decided post wto psi agreement, the decision on over-invoicing and under-invoicing would have been different. thirdly, to analyse the significance of the american accord decision on international efforts to combat money laundering and other documentary crimes in international trade law in the wake of recent upsurges in that practice, without which, the article suggests that the ucp 500 generally and the american accord, in particular would be crooks’ charters. fourth, to demonstrate that decisions before and after the american accord were motivated by policy rather than purely legal considerations. fifth, to re-examine the fraud exception principle and to put forward new suggestions that, as a matter of common law, courts should include nullity exception to cover fraud committed by third parties with or without the knowledge of sellers and/or beneficiaries. sixth, to recommend amendments to the next revision of the ucp to include, inter alia, provisions on nullity or any fraud and/or related exceptions, arbitration and applicable law clauses so as to balance the interests of all parties. seventh, and finally, to provide an exhaustive commentary on the case, with a view to furtherance of knowledge, that the important american accord decision deserves. in this respect the article argues that attempt was long overdue. the article is divided as listed below. following the introduction and establishment of the foundation in parts i and ii, the main thrust of the analysis is contained in parts iii-v which discuss various aspects of the case and part vi which envisages domestic and international implications of the decision. the “american accord” and the fraud exception (a) summary of the facts the summary of the facts in the case is that an english company sold a glass fibre plant to a peruvian buyer. payment was arranged under an irrevocable documentary letter of credit issued by banco continental sa (issuing bank) and confirmed by the royal bank of canada at its london branch (the confirming bank). the credit was subject to the 1974 revision of the ucp (ucp 400).5 payment arrangements agreed between the seller and the buyer involved inflating (“over invoicing” or “double invoicing”) purchase price in order to enable the buyer to transfer and hold the proceeds in a miami bank in breach of the peruvian exchange control regulations. the seller assigned to the appellant their rights under the credit. payment under the credit was to be by sight drafts on the issuing bank against delivery inter alia of a full set of “on board” bills of lading evidencing shipment of the 5 publication no 411, now superseded by the ucp 500. the ucp were first published by the icc 1933 with revised versions issued in 1951, 1962, 1974 and 1983. the denning law journal 118 goods on or before 15 december 1976. the actual shipment was, in fact, made on the american accord instead of on the american adventure, a day later on 16 december 1976 and from the port of felixstowe instead of london. the date of 16 december 1976 on the original bills of lading was visibly altered by a shipping clerk to15 december 1976. the documents were rejected by the confirming bank. subsequently, the tender was withdrawn, corrections made and fresh bills of lading tendered, bearing notation6 to the effect that the goods were actually on board on 15 december. the bank still refused to honour the credit pleading fraud. the beneficiaries sued. the trial judge, mocatta j,7 held that the bank had wrongly refused to honour the credit, since the fraud was not committed by or with the knowledge of the sellers or the beneficiaries (assignee bank) but by a third party. he reserved his judgment on the double invoicing (monetary transaction). the effect of the ruling being that the bank would have to honour the credit despite having knowledge of fraud. the bank appealed and the court of appeal,8 stephenson lj, (ackner lj and griffiths lj, concurring), held (reversing the decision of the trial court) that the bank was entitled and in fact under an obligation to reject the documents if fraud was established. the court reasoned that if a document which was false in the sense that it was forged by a person other than a beneficiary could entitle the bank to refuse payment, there was no reason why a document in any way false to the knowledge of such a person should not have the same effect. the appellate ruling went against the grain of the then-established law that in letters of credit9 and performance bonds,10 unless the seller is aware or fraud is proved the bank should honour its obligations on credit. the beneficiaries appealed to the house of lords. the house of lords,11 diplock lj (russell lj, scarman lj and bridge lj, concurring) reversed the court of appeal’s decision and reinstated in part mocatta’s judgement. the house of lords’ judgment was delivered by diplock lj, like mocatta, an experienced commercial judge. their lordships held that the confirming bank’s duty to the seller was only vitiated if there was fraud on the seller’s part, and the bank remained under a duty to pay, even if the documents presented, although conforming on their face to the terms of the 6 notation is the process of certifying, normally by signature or signature a “received for shipment” bill of lading after the goods have been loaded or amending and retendering the bill lading following a rejection of the first tender of documents. 7 [1979] 1 lloyds rep 267. 8 [1981] 2 all er 142. 9 letters of credit includes standby letters of credit where they are incorporated into the text of the credit as used in practice in the usa. 10 performance bonds are treated the same way as bills of lading regarding the fraud exception. 11 [1982] 2 all er 720. the denning law journal 119 credit, nevertheless contained a statement of material fact that was not accurate and known to the bank. curiously, the consequence of the decision was that the bank was not relieved from liability even if the documents contained a material representation of fact which the person issuing the documents knew to be false and which was intended by him to deceive persons, including the seller himself, who might deal in the documents thereafter. the case is significant in many ways in restating the common law position on: fraud exceptions; currency exchange controls in international trade; severability in contracts; equitable doctrine approach in judicial decisions; and more importantly role of under-invoicing and over-invoicing using letters of credit in international trade-the subject matters of this article. (b) on the fraud exception jurisprudence (i) autonomy of documents and credits both the trial court and the house of lords based their judgments for the claimants on the independence of the documents and therefore the credits. the reasoning being that “credits by their nature are separate transactions from the sales or other contracts on which they may be based and banks are in no way concerned with or bound by such contracts.”12 this is because, “in documentary credit operations all parties are concerned deal in documents and not in goods,”13 a position endorsed by jenkins lj in mallas (t/a hamza mallas & sons) v british imex industries ltd14 and a case referred to in the american accord ruling and in which the court ruled it was clear from the provisions15 that the opening of a confirmed credit imposes upon a banker an absolute obligation to pay, irrespective of any dispute there may be between the parties whether the goods are up to contract or not.16 one is not taking issue with the house of lord’s ruling in the american accord per se as it is within settled law and, as will be apparent below, there is rationale for such positions. the thesis of this article is, however, that courts have over-emphasised the independence of the credit in favour of the seller and other beneficiaries’ often to the detriment of the buyer and the issuing bank. we shall return to that later. although conceding to case law, and authors who accept that position dogmatically, that there is need to balance competing interests of parties to the sales and credit contracts, this author begs to differ. 12 uniform customs and practice for documentary credits (ucp) of the icc 1974 revision , icc publication no 290 art 8(a) now art 3 of the ucp 500. 13 ibid art 8(b). 14 [1958] 1 all er 262, (sometimes spelt as hamzeh malas). 15 now art 15 of the ucp 500. 16 [1958] 2 qb 127 at 129. the denning law journal 120 the author is further persuaded by hooley,17 who, after setting out the autonomy principle in the ucp and examining whether fraud exception applies to fraud in the underlying transaction, considers whether, where fraud on the part of the beneficiary cannot be proved, payment can be withheld by the confirming bank on the basis that the forged fraudulent document is a nullity. in the process he criticises the court of appeal’s recent decision in montrod ltd v grundkotter, in which the existence of a nullity exception, as accepted by the singapore supreme court decision in beam technologies v standard chartered bank,18 was rejected. the american accord was cited extensively and distinguished in beam technologies but followed in montrod ltd v grundkotter which denied the existence of the nullity exception under english common law. on the premise that the autonomy principle lends itself to abuse one author commented that, “there are many means that are available to criminal syndicates to launder their illegal gains. letters of credit transactions, in my view, are an ideal vehicle for laundering illicit funds and have so far attracted little attention from the regulatory authorities. while in every other service provided by banks, under the anti-money laundering statutes, bankers are required by the law to comply with 'know your customer’ regulations, bankers in documentary credits department remain consistent with the documentary and independent principle.”19 it is, therefore, not far-fetched to suggest that the principle and its application as fraud exception in the american accord, and authorities before and after it, provides comfort to fraudsters and is appropriately referred to as the crooks charter. it is a further argument of this article that the autonomy principle neglects not only the opposing doctrine of strict compliance but also the interest of other innocent parties. (ii) and the doctrine of strict documentary compliance and the ucp this article further reiterates that the american accord was at variance with the doctrine of strict documentary compliance applicable to the ucp and credit. even if the beneficiary’s claim would have succeeded on the basis of the autonomy principle, it is submitted that it should still have failed on the doctrine of strict documentary compliance. the doctrine provides that the beneficiary should present the exact documents and in the terms and conditions required. the documents must conform strictly to the terms of the credit; and 17 hooley, rja, fraud and letters of credit: part 1butterworth journal of international banking law & finance (bj i b&f), 2003, vol 18 no 3 pp 91-98; see also [2002] clj 281. 18 [2003] 1 slr 597. 19 anonymous author, “money laundering and documentary credit transactions”, journal of money laundering control, 2002, vol 5 no 3 p 217. the denning law journal 121 “there is no room for documents which are almost the same or which will do just as well.”20 only then should we move to the point that if the documents conform with the terms of the credit, the banker is not concerned as to whether the documents stipulated by the buyer serve any useful commercial purpose or as to why the customer called for tender of a document or a particular description21 or as to the legal effect of the document or vis a vis the applicant.22 it forms no part of the bank’s function, when considering whether to pay against the documents presented to it, to speculate about the underlying facts.23 neither should the bank question the usefulness or sufficiency of the documents.24 nevertheless, as in the american accord, where the credit calls for shipping documents, they must conform to customary shipping documents as to be reasonably fit to pass current in commerce. even given that the requirements of strictly compliance are slightly different, the american accord tender was still an improper and un-conforming tender. the bill of lading had a wrong shipping date, it was deliberately altered, almost same as forged, and the issuing bank, the seller and the beneficiaries were all aware of it. the tender and acceptance of forged documents in this case went against the grain of established and accepted case law that a tender of documents which, properly read and understood, call for further inquiry or are such as to invite litigation is clearly a bad tender.25 accordingly a beneficiary who presents fraudulent documents has not complied with the requirement and should therefore fail. this was not a tender in the legal sense of the term. the beneficiary failed to do so in the present case and should not have succeeded. (iii) effect fraud on the bank’s guarantee under the credits. it is argued that fraud from whatever source should nullify the guarantee provided by the bank guarantee.26 instead the american accord simply stuck to 20 equitable trust co of new york v dawson partners (1926) 27 ll lrep 49 at p 52, per lord sumner. 21 kydon compania naviera sa v national westminster bank [1981] 1 lloyd’s rep 68 at 75. 22 british imex industries ltd v midlands bank ltd [1958] 1 all er 264, which was cited in the court of appeal’s judgment. 23 westpac banking corporation and commonwealth steel co. ltd v south carolina national bank [1986] 1 lloyds rep 311 at 315, pc. 24 see article 15 of the ucp. 25 see hansson v hemel and horley ltd [1922] 2 ac 36 at 46, and m.golodetz & co inc v czarnikow-rionda co inc (the galatia) [1979] 2 all er 726 at 739-740, per donaldson j(affirmed [1980] 1 all er 501). 26 for liability of forged documents and for the scope of the fraud\ exception, see halsbury’ laws of england, vol 3 (1), 4th edn, paras 286 and 289. the denning law journal 122 the hitherto common law and international commercial principles on fraud exception in credits and performance bond 27transactions, namely that unless the bank is aware or has knowledge of the fraud it will pay on the letter of credit. but it was conceded that the bank was both aware and had knowledge. the modern origin of this principle is the american case of edward sztejn v j henry schroder banking corporation,28 cited and referred to in the american accord judgment and which has been followed by english judges in such landmark decisions as bank russo-iran v gordon woodroffe & co ltd,29 r harbottle (mercantile) ltd v national westminster bank ltd,30 and edward owen engineering ltd v barclays bank international.31 in edward owen engineering, geoffrey lane lj summarised the position thus: “the only circumstances which would justify the bank not complying with a demand made under that agreement would be those which would exonerate them under similar circumstances if they had entered into a letter of credit, and that is this, if it had been clear and obvious to the bank that the buyers had been guilty of the offence.”32 on this point, once again, one has no basic quarrels with lane lj’s decision as it simply restated accepted law. it is submitted, however, that in the american accord, both the trial court and the house of lords got it wrong in allowing the payment and the court of appeal was correct in rejecting the payment for the reasons given above. the trial court and the house of lords limited their interpretation of the fraud exception only to when it emanates from the seller or his agent. when there is fraud from third party sources, as in this case, the courts having accepted that they were in new territory should have been flexible, bold and prepared to distinguish earlier authorities and to break new grounds as the singapore court was to do later in beams technologies. secondly, english courts were not prepared to exercise judicial oversight by considering other issues, such as the surrounding circumstances and their overall effect of the case. in this the courts are not alone; most academic authors tend to peddle that common ground. this author, with due respect, begs to differ. in addition to hooley33 other authors such as chin ly and wang yk 27 performance bonds are treated the same way as letters of credit with regard to fraud, see generally, quentin loh mad tang hang wu “ injunctions restricting calls on performance bonds-is fraud the only ground in singapore?”, lloyds maritime & commercial law quarterly, 2000, 348-363. 28 (1941) 31 nys 2n 631. 29 (1972) transcript, the times, october 4. 30 [1977] 2 all er 862 at 870 per kerr j. 31 [1978] 1 all er 976. 32 [1978] 1 all er 976 at 986 per lord denning mr. 33 see, note 17, supra. the denning law journal 123 who34 take the same position in their analysis of the singapore court decision in beam technologies on whether a bank could refuse to pay on a documentary credit, even though the beneficiary presenting the documents was not guilty of fraud, because the documents were forgeries perpetrated by a third party. they also review case law on the autonomy of documentary credits and examine the implications for international trade if the commonwealth jurisdictions followed the singaporean ruling and allowed an exception to the autonomy principle, based on the nullity of the documents. having followed the american decision on sztejn it is hoped they will do likewise with a common law decision. that leads to the issue of fraud committed by the seller or his agent. (iv) fraud committed by the seller or his agent the american accord and other cases on the subject suggest for the buyer and his bank to succeed they have to prove that the fraud has been committed by either the seller or his agent or any one else instructed by him. although the contrary view was not argued before them the trial court and the house of lords limited themselves only to fraud committed by the seller or his agent. they were not prepared to look at fraud, although committed by a third party, affecting the whole transaction. instead they preferred not to express any opinions and to leave the matter open.35 although the seller and the assignee in the american accord were not parties to the fraud they nevertheless benefited from it. that in itself should not be a consideration, nevertheless where as in this case, the seller not only knew of the first fraud (bill of lading) but also willingly participated in the second fraud (double-invoicing), he should not have been permitted to benefit. the seller was not entirely innocent in this respect. they went along with the buyer’s scheme of using the credit for purposes other than paying for goods bought and shipped. it is submitted that in such cases, the house of lords, like the court of appeal should have been prepared to look at the whole transaction. fraud is fraud and it makes no difference who in the credit chain perpetrates it. after all 34 chin ly and wang yk, “autonomy-a nullity at last?” lm&clq (2004) no1 february pp 14-19; see also quentin loh and tang hang wu, “injunctions restraining calls on performance bondsis fraud the only ground in singapore?” lm & clq (2000) pp 348-363. 35 hence lane lj’s statement, “ there is i think it is conceded, no authority , english or american , directly deciding that the fraud of a third party such as the maker of a false document is or is not a good defence to a claim to be paid in accordance with the terms of a letter of credit. most of these cases of fraud are, as is to be expected, cases of fraud by a seller hoping to be paid for rubbish or, at the least, defective goods before the true state of affairs are known which his own misdescription has concealed.” [1981] 3 all er 142 at 161. the denning law journal 124 the bank is at risk regardless of who commits the fraud. where it fails the beneficiary the bank is normally penalised, why shouldn’t the seller be penalised when it fails the bank? the bank takes on this onerous duty on the basis that others will perform their duties and do so honestly. the seller and the beneficiary fell short on this occasion, and in failing to recognise, these courts too failed in their responsibilities to protect all parties to the contract. all cases cited before the court dealt with fraud on the seller’s part and included cases where no goods were delivered at all. previous decisions did not make distinctions between the frauds. the american accord was however different from that scenario and should have been distinguishable: it involved fraud from and by a third party. having conceded (see below) that there were no authorities for fraud other than that committed by the seller, the courts should have been free to act independently rather than feeling bound by distinguishable precedence. they (trial court and house of lords) should have considered that what matters is the existence and effect of the fraud irrespective of source. they should also have borne in mind that once the seller benefits (even if they are not party to the fraud) that is what counts. for those reasons courts should extend the exception to fraud if committed by third parties with or without the seller’s knowledge and/or consent. hence the nullity exception. (v) fraud committed by a third party with or without sellers or beneficiary’s knowledge-the nullity exception. in the american accord, fraud was committed by a third party without the seller or assignees knowledge. the trial court and the house of lords were heavily influenced by that fact, hence stephenson lj’s statement that; “there is, i think conceded, no authority, english or american, directly deciding that the fraud of a third party such as the maker of a false document is or is not a good defence to a claim to be paid in accordance with the terms of a letter of credit. most of the cases of fraud are, as is to be expected, cases of fraud by the seller hoping to be paid for rubbish or, at the least, defective goods before the true state of affairs which his own description has concealed. it is in the context of such facts that bailhache j’s statement about description, fraudulent or (where the buyer had rejected the goods before payment by the bank) innocent, in society metallurgique d’ audbrives & villerupt v british bank for foreign trade36 and the 36 (1922) 11 ll l rep 168 at 170. the denning law journal 125 statements quoted from edward owen engineering ltd v barclays bank have to be considered.”37 secondly, the two courts were influenced by the fact that the fraud was committed unknown to the sellers or beneficiaries. however, as has been constantly argued, as far as credit dealings are concerned it should not make any difference who commits the fraud. what matters is that fraud is committed and that when presented for payment the documents do not conform. unless this position is adopted the process puts the banks in jeopardy and makes a mockery of the system. if they do not pay they are crucified by the beneficiary and the courts. if they do pay despite the fraud they are crucified by the buyer and his banks (issuing, corresponding, confirming and paying). tails they lose heads they do not win. most academic authors cited by the court of appeal such as davis,38 gutteridge and megrah39 and benjamin40 tend to follow the status quo. to this should be added the american accord, montrode, equitable trust and dawson, gian singh & co ltd v banque de l’indochine41 and related decisions for the status quo. the only exceptions are hooley above who give clear support to the exception including the fraud of third party and goode42 who disputes the protection accorded holders in due course such as in the american accord and criticised mocatta j’s decision for holding that the loading supervisor’s fraud did not defeat their claim. goode also cites the american case of united technologies corporation v citibank n a43 (one of the cases which applied new york’s ucc), for his position. this club of ‘dissenters’ include chin and wang.44 to this should be added justice chao 37 [1981] 1 all er 142 at 161. 38 the law relating to commercial letters of credit, 3rd, edn,1963, pp 145-1460], gutteridge and megrah [laws of bankers commercial credits 6th edn, 1979, p 137. 39 laws of bankers commercial credits, 6th edn, 1979, p137. 40 benjamin’s sale of goods [ 1974, para 2074, p 1060]40 41 [1972-1974] slr 16 and [1974] 2 all er 754 pc. 42 goode, roy m, “reflections on letters of credit -1 [1980] jbl 291; professor goode’s article was cited by stephenson lj in the court of appeal and seems to have influenced the court on the point that a fraudulent bill of lading does not become a conforming document merely because the fraud is that of a third party. with respect the real point is whether under ucp such falsity prevents apparently conforming documents from being accepted in such circumstances. the house of lord in reversing the court of appeal’s decision thought not; similar views are held in his book his book commercial law, 2nd edn (1995), 1008-1009. 43 (1979) 469 f supp 473. 44 see note 32, supra. the denning law journal 126 hick tin, who broke ranks by allowing the nullity exception in beam technologies.45 it had also been suggested by others including schmithorff46 a decade before ucp 500 that it would be desirable that the next revision of the ucp should expressly authorise banks to refuse to honour a credit if fraud is established irrespective of whether the seller is party to the fraud. the next ucp [ucp 500] did not heed that advice. instead the icc stuck to cases “of which the bank is aware and/or has knowledge or where fraud is proven.” the chorus for revision of the ucp has recently received a boost from ellinger.47 (vi) banks predicaments credit transactions involving or alleging fraud this author, and others in the ‘club of the unwilling’, has consistently maintained that it is immaterial who commits the fraud, and that what matters is that the bank or seller/beneficiary has knowledge as was so in the american accord. the guiding principle is “of which the bank is aware and/or has knowledge.” but what constitutes knowledge and/or its extent? courts do not seem to provide any guidelines. however, as one commentator on the role of credits in money laundering put it, bankers handling letters of credit transactions need to bear in mind that “ the legislative history of the money laundering statutes makes clear that knowledge includes the concepts of ‘wilful blindness’, ‘deliberate ignorance’, and ‘conscience avoidance’. thus, if a bank employee suspects that someone may be money laundering ‘dirty money’ but deliberately refuses to ask questions or report the activity to superiors because he wants to remain ignorant, the employee and the bank could be deemed to have knowledge for purposes of assessing criminal liability.”48 another 45 by holding that “it is our opinion that the negotiating /confirming bank was not obliged to pay under the lc if it had established within the seven day period prescribed under art 13(b) of the ucp 500, that a material document required under the credit was forged and null and void, and had given notice of its refusal within that period. while we recognise that there could be difficulties in determining under what circumstances a document would be considered material or a nullity, such a question can only be answered on the facts of each case. one cannot generalise. it is not possible to define when a document is a nullity. but it is really not that much more difficult to answer such questions than to determine what is reasonable, an exercise which the courts are all too familiar with.” beam technologies, supra, at pp 610-611. 46 schmitthoff, clive m, [1982] jbl 319 at 321. 47 ellinger, e p, “the ucp -500:considering a new revision”, lm & clq 2004, pp 3045 48 anonymous author, “ucp and fraud”, supra, at p 217; as to proceeds of drug trafficking see halsbury’s laws 4th edition, vol 11 (1) para 408; as to the powers of the financial services authority to make rules and to institute proceedings see halsbury’s laws, ibid, vol 18 (1) paras 38 and 422 respectively; for the powers of the the denning law journal 127 commented put it rather crudely that “at the time of sharp market breaks, a bank officer who cannot, at his customer’s request discover some plausible reason for dishonouring drafts is hardly worthy of the name.”49 according to this position, “the more prudent approach will be, particularly where the bank’s own money is involved, for the bank to carry out its own inquiries to establish the authenticity of the documents which have been presented by the beneficiary.”50 until that revolution, the position remains that of policy of protecting the credit system. the role and function of the bank in the credit transaction has been supported by banks lj in a recent decision of phillip brothers ltd v the hong kong and shanghai banking corporation (hsbc),51 thus, “the overriding interest of the courts (is) is maintaining the strength of the letter of credit. to my mind, the bank primarily takes the commercial risk. the bank must decide whether the documents conform to its mandate. i would be slow to take that mandate away. if the bank pays it may be unable to be reimbursed. if it does not pay, it runs the risk that its international reputation will be injured. risk taking is part of the business of the bank.” we shall return to this orthodox and policy-oriented position later.52 the american accord also demonstrates the apparent sharp difference between the liberal and strict interpretations and drew the line between the liberal and strict approach to fraud exceptions. the liberal v the strict interpretation (a) the liberal v the strict judicial approach although the fraud exception on the part of the beneficiary seeking to avail himself of the credit is a clear application of the maxim “ex turpi causa non oritur” or, in plain english, “fraud unravels all”, the american accord has exposed a number of unresolved issues. first, the trial court and the house of lords should not have allowed court process and the credit to be used for other purposes and by dishonest merchants to carry out fraud. in this respect the case has shown that by adopting the strict approach english courts’ attitude towards fraud exception in credit transactions has not been consistent. commissioners of customs and excise as to offences see halsbury’s laws, ibid, vol 12(2) para 1174; and for the solicitors’ duty to report see halsbury’s laws, ibid. vol 37 para 570 and vol 44 (1) para 90. 49 anonymous author, “ucp and fraud”, supra at p 218. 50 ibid. 51 [1990] 1 all er 230 (commercial). 52 see part v of this article, post. the denning law journal 128 secondly, some courts, such as the court of appeal in this case, take a more liberal approach with regard to the severity of fraud required to justify an injunction in restraint of payment such as the view of stephenson lj that, “there was fraud in the transaction, and our courts should adopt the flexible standard to be applied as the circumstances of a particular situation mandate, as did the uniform commercial code (ucc) now ruling in the usa. we should not apply it only to situation…in which wrongdoing of the beneficiary has not vitiated the entire transaction that the legitimate purposes of the independence of the issuer’s obligation would no longer be served.”53 thirdly, others favour the more conventional “restricted” approach, as illustrated by diplock lj’s in the case. in the american accord, despite the fact that a falsely dated bill of lading was presented under the credit by the beneficiary, because he was unaware of the falsification, the house of lords felt the bill of lading was good value, presentation was not fraudulent and so the fraud exception did not apply. the ‘guilty’ knowledge of the seller at the time seems to be the only consideration in deciding whether the presentation is fraudulent or not. it is submitted that such restrictive approach although simplistic in theory is difficult to apply in practice. it leads to the already demonstrated dilemmas that this puts the banks in. on the one hand, if a bank confronted with fraudulent documents, refuses to pay out, it may be in breach of its obligation to the beneficiary if the documents were forged by a third party. on the other hand, if a bank honours a demand accompanied by documents which to its knowledge are fraudulent, it may be in breach of its obligation to its customer. consequently, a bank confronted with fraudulent documents will have to work out who committed the fraud before it can decide whether to pay or not. yet banks are supposed to assume no liability or responsibility for the form, sufficiency, accuracy, genuineness or legal effects of any documents. furthermore, they are also not supposed to ask any questions and to deal in documents only and not goods. the american accord also unavoidably ventured into wider issues of foreign exchange and international finance -the second fraud in the caseissues not covered by any modern english and/or common law decision. (b) foreign exchange contracts v sales’ contracts other than the fraud exception, the second point that the court considered was, therefore, whether the contract was an “exchange contract” or a “currency 53 cited in, anonymous author, “ucp and fraud”, journal of money laundering control, supra, at 3. the denning law journal 129 transfer contract”, within the context of the bretton woods agreements.54 the answer to this preliminary question would determine whether the seller would be allowed to retain the proceeds of the double invoicing involved in the transaction. however, there were divergence of views between the court of appeal on the one hand and the trial court and the house of lords on the other regarding the constitution of exchange contracts.55 by virtue of the bretton woods agreement order in council 1946,56 made under the bretton woods agreement act 194557 to give effect to the bretton woods agreement: “exchange contracts which involve the currency58 of any member59 and which are contrary to the exchange control regulations60 of that member61 maintained or imposed consistently with this agreement62 shall be unenforceable63 in the territory of the member....”64 it will be apparent later that it is this aspect, rather than enforceability of the sales contract, that influenced their lordships’ decision. was the american accord an exchange or a sales contract? in an earlier decision, wilson, smithett & co ltd v terruzi, lord denning said that the term “exchange contract” was not defined, but should be liberally construed having regard to the objects of the bretton woods agreement to protect the currency 54 arising from an international conference held at bretton woods, new hampshire, in july 1944 to discuss alternative proposals relating to post-war international payments’ problems put forward by the us, canada and the uk governments. the agreement resulting from the conference led to the establishment of the imf and the world bank. 55 for contracts under the agreement, see proctor, c mann on the legal aspects of money, supra, para 15 27 pp 385-386. 56 for the order in council see the bretton woods agreement order in council 1946, si no1946/36. 57 for the bretton woods agreement act 1945 (as repealed and replaced) see 22 halsbury’s statutes (3rd edn) p 886. 58 for the meaning of “involve the currency”, see proctor, c mann on the legal aspects of money, supra, para, 15 29 pp 398-399. 59 for the meaning of “of any member” see, ibid, para 15 30 pp 399-400. 60 for the meaning of “and which is contrary to the exchange control regulations” see, ibid, para 15 31 pp 400-402. 61 for the meaning of “ of that member” see, ibid, para 15 32 p 402. 62 for the meaning of “maintained or imposed consistently with this agreement” see, ibid, para 15 33 pp 403-405. 63 for the meaning of “shall be enforceable” see, ibid, para 15 34 pp 405-407. 64 for an early interpretation of the provision by the board of executives of the international monetary fund see (1945) 3 iclq 262; for “exchange contracts” see proctor, charles, mann on the legal aspects of money, 6th edn para 15 28, pp 386398. the denning law journal 130 of the states who are parties thereto. he (lord denning mr),65 considered that, “exchange contract”, meant any contracts which in anyway affected a country’s exchange resources.66 however, kerr j in a detailed judgment rejected lord denning’s wider (liberal) interpretation and preferred the narrower (restrictive) one of nussbaum,67 namely that “exchange contracts” are contracts to exchange the currency of one country for the currency of another. interestingly, the court of appeal presided over by lord denning mr, affirmed kerr j. one tends to agree with kerr in this instance that exchange contracts are purely monetary exchange and not sales contracts with elements of currency transfer. although, denning overruled himself in the latter case there is some sympathy with his interpretation in the american accord during its passage through the court of appeal that this was an exchange contract disguised as a sales contract. subsequently, and for some reason, the court went into detailed discussions on whether this was a sale of goods or sale of documents’ contracts. in so doing the court relied on kwei tek chao (t/a zung fu co) v british traders and shippers ltd.68 this author has expressed his views on this issue elsewhere.69 however, by taking that root in the american accord the court of appeal provided a red-herring and did not add much to the debate: although there is an overlap between the two, the main issue in kwei tek chao was to do with the nature of the cif rather than credit contracts. also cited were analogous english post-war building contract cases and comparative american decisions. (c) comparison with english post-war building construction and american decisions (i) comparisons with english post war building construction decisions in arriving at their decision the courts seemed to be persuaded by analogous previous english decisions on building construction contracts. it will be remembered that after the war english courts became familiar with cases in which builders entered into lump sum contracts to do work in excess of amount 65 following mann, fa (see kerr j in wilson, smithett & cope ltd v terruzzi [1976] 1qb 683 at 698-699. 66 [1967] 1qb 605, 613 g-4a. 67 dr nussbaum, “money in the law-national ands international”, yale lj 421 at p 542 et seq. 68 kewi tek chao (trading as zung fu co) v british traders and shippers ltd [1954] 1 all er 779. 69 see generally, ademun-odeke, “cif contracts-is it a sale of goods or sale of documents?” journal of contract law, butterworths, sidney, australia, vol 6 no 2 1993, pp 158-176. the denning law journal 131 for which licences had been granted and so were in breach of defence (general) regulations 1939.70 in one such case, jackson stansfield & sons butterworth71 and dennis & co ltd v munn,72 the plaintiff builders recovered the licensed amount (by concession of the defendant building owners) but could not enforce the claim to the non-licensed excess. similarly, in frank w clifford ltd v grath,73 the cost in excess of the limit was allowed, although lord denning lj, doubted whether a lump sum contract, “for a single and indivisible work”, would not be wholly illegal and irrecoverable. but he concluded they could when the work was divisible into its component items. similarly, stephenson lj saw no reason why the court should not divide it into its costs and concurred that the court could not be disabled from dividing it by its being claimed in one total; in which case it became a matter of form only. this was compared with a claim for an agreed rent; where the standard rent would be recoverable, whether or not it had been separated in the claim from the excess.74 this may be so under english law, but it is not clear whether english common law doctrinal practice should be good examples in international cases. once more, one cannot see any relevance of these building construction cases other than for purely analogous purposes. in addition, courts in the american accord also surveyed a number of comparative american decisions on the subject. (ii) comparison with american decisions and the uniform commercial code (ucc) in addition to sztejn, courts in the american accord referred to a number of other american decisions in relation to a range of issues arising from similar contracts. first, was old colony trust co v lawyers’ title and trust co,75 where the court drew a distinction between a document which was inaccurate and a document which was false, or between a document which was false to the knowledge of its maker and a document which he forged. english courts did not “buy” that argument in the american accord. secondly, was bank of taiwan v union national bank of philadelphia,76 which ruled that if, “the date of the bills of lading did not truthfully represent the date of the beginning of the actual transportation would be a defence, it could constitute a defence if and 70 sr & o 1939 no 927, reg 56a. 71 [1948] 2 all er 558. 72 [1949] 1all er 616 2kb 327. 73 [1956] 2 all er 323. 74 see schisselman v rubin [1951] wn 530. 75 (1924) 297 f 152. 76 (1924) 1f 2d 65 at the circuit court of appeals, third circuit. the denning law journal 132 only if the plaintiff knew that fact when it acquired the draft.”77 that case would be no help since the assignee in the american accord probably did not know the bill of lading was inaccurate. furthermore, in both the american accord, and the bank of taiwan courts were protecting transferees (banks) not sellers. thirdly, in maurice o’ meara co v national park bank of new york,78 only the dissenting judgment on a case involving a dispute between a buyer and seller who had misrepresented the security upon which the advance was made was cited. the case did not, however, throw any light on the proceedings and it remains unclear as to why a dissenting judgment was cited except perhaps to provide a link with bank of east asia ltd. v pang,79 a latter case in which the washington supreme court preferred maurice o’meara. the other relevance of bank of east asia was that it was followed in the leading case of continental national bank v national city bank of new york,80 and subsequently in the landmark case of sztejn. however, those american decisions, especially sztejn, are distinguishable from the american accord in that sellers in those cases, by largely shipping rubbish in performance of their contracts, were themselves parties to the fraud. fourthly, was intraworld industries inc. girard trust bank,81 where the beneficiary’s fraud was relevant to the decision. intraworld was followed in new york life insurance co v hartford national bank and trust co82 by the connecticut supreme court. other than that, the new york life insurance decision was itself insignificant were it not for citing and following the important united bank ltd v cambridge sporting goods corporation83 decision. however, even united bank ltd v cambridge sports goods is distinguishable from the american accord since it represents a number of cases, in the mould of sztejn, in which the fraud was committed by sellers who shipped rubbish compared to the american accord where: (a) contractual goods were shipped albeit later than stipulated, (b) the fraud was committed by a third party, and (c) one party with the willing participated of the other sought to use the credit for purposes other than for legitimate sales transactions. it is, therefore, rather difficult to fathom why those american decisions were cited and followed by english courts in the american accord. 77 ibid at 66. 78 (1925) 239 ny 386 cardozo’ s. 79 (1926) 249 p 1060. 80 (1934) 69 f 2d 312. 81 (1975) pa 336 a 2d 313 (beneficiary’s fraud). 82 (1977) 378 a 2d 562). 83 (1976) 392 nys 2d 265 (old unpadded, ripped and mildewed gloves instead of new boxing gloves). the denning law journal 133 fifth, and finally, in the american accord, the court of appeal cited south western shipping corporation v national city bank of new york84 where it was noted that, “all the judges of the court seem to have been of the opinion that the defendant bank could have relied on the rule that the court would not assist a party to an illegal contract to carry out this illegality object, as a defence to the plaintiff’s claim in negligence and breach of contract in paying out to the wrong person (in fact the party to the illegal contract) money deposited with the defendant bank in furtherance of a breach of italian currency [exchange] regulations and art viii s 2(b) of the bretton woods agreement.”85 of the above american decisions cited, this was probably the only one that was all in fours with the american accordcovering all the 3 issues: (a) fraud in credits, (b) the bretton woods agreement and (c) exchange control regulations of a member state (italy). following that brief detour the courts in the american accord returned to other common law doctrine of severance and illegal and unenforceable contracts presumably in order to assistance in solving problems arising from the altered bill of lading and over-invoicing. to determine violation the court had to answer a preliminary question whether the contract in the american accord was predominantly an exchange contract or a sales contract. it was illegal and should not have been enforced by or in english courts. common law jurisprudence on fraud exception (a) was the contract illegal or unenforceable at common law? (i) whether the contract was illegal or unenforceable the third and final consideration was as to whether the contract in the american accord was illegal or simply unenforceable. apart from the date alteration in the bill of lading the agreement between the buyer and the seller also involved an artificially inflated price in us$ and a collateral agreement by the seller that it would hold the excess funds as trustee to transmit to the buyer’s account in florida. this latter arrangement was held by the court of appeal to be, “a monetary transaction in disguise”, and that that part of the credit was therefore unenforceable. the house of lords concurred that the contract was unenforceable under the 1946 imf agreement order as a monetary transaction in disguise not as a question of construction, but one of looking to the substance of the transaction.86 84 (1959) 6 ny 2d 454, 190 ny 2d 352. 85 american accord [1981] 3 all er 142 at 153. 86 see lord diplock’s decision [1982] 2 all er at 730 b-d. the denning law journal 134 in an earlier decision,87 diplock lj said that the order made such a contract unenforceable, not illegal. otherwise under common law illegal contracts are contracts which are forbidden by statute (such as the bretton woods agreement order in council) in the instant case or are contrary to common law or public policy and are therefore generally void. examples are (a) contracts tending to injure the public service,88 (b) a contract in restraint of trade,89 and (c) a contract to commit a criminal offence or a civil wrong.90 unenforceable contracts, on the other hand, are simply contracts which although valid cannot be enforced directly by action because of some technical defect, e.g., lapse of time. it is submitted that for our purposes these distinctions are academic; for although unenforceable contracts are not necessarily illegal contracts, however, the effect of the two is the same in that the common denominator in both is the unenforceability. the american accord could not possibly fit into that category-hence the court‘s willingness to permit severable enforcement of the unoffending part thereof.91 it was also doubtful whether it would have made a difference if the contract concerned domestic exchange dealing and exchange control or an external foreign exchange regulation. (ii) the legality of domestic foreign exchange contracts under english law from cases cited in the arguments the courts took the position that exchange contracts between citizens and/or residents in the uk are not illegal.92 first, in line of these cases, was sharif v azad93 where the plaintiff a pakistani citizen resident in the uk claimed against the defendant (another pakistani citizen) also resident in england, £300 on a dishonoured cheque for that amount drawn by him on an english bank. the issue arose from the actions of one latif, a pakistani resident in pakistan (but on a visit to england) to take rupees out of pakistan without the permission of the pakistan state bank contrary to pakistan currency exchange regulations. the defendant’s defence 87 sharif v azad [1967] 1qb 605, at 618 a-b. 88 parkinson v college of ambulance [1925] 2kb 1 (attempted sale of public office or contract to procure title of honour). 89 nordenfelkt v maxim nordenfelt gun co ltd [1894]ac 535. 90 napier v national business agency [1951] 2 all er 263; see also howard v shirlstar container transport ltd [1991] 1wlr 1292. 91 for “the legal character” of article viii (2) (b) see proctor, supra, para 15.0415.08 pp 373-376. 92 for “the offences created by the 1947 act “ see proctor, c, ibid, para 14.08-14.14 pp 62-364; and for personal and territorial ambit” see para 14.1, 5 pp 364-5 93 [1966] 3 all er 785. the denning law journal 135 was that the plaintiff had agreed with him to deliver to him rupees’ cheque in consideration for the defendant’s delivering to the plaintiff the £300 cheque sued on; the object of the transactions, as the plaintiff well knew, was to enable latif to take money out of pakistan contrary to pakistan exchange currency regulations and they were illegal in that they had that illegal object and /or were contrary to public policy. the court decided that there was nothing illegal in the cheque’s transaction in that it took place wholly in england, and found for the plaintiff. referring to the bretton woods agreements act 1945 and the order in council, art viii, s 2(b), the appeal was dismissed. however, there were other background information that swayed the decision in the sharif and azad case. the distinguishing factors being, first, that the rupees were placed into a blocked account in pakistan and not paid to latif; secondly the action was on a cheque, not a letter of credit. this should be contrasted with batra v ebrahim94 where it was held, when the point was taken for the first time, that art. viii s 2(b)95 applied. accordingly, the two contracts by each of which the plaintiff, an indian living in england, agreed to pay cheques in sterling to the defendant, another indian also living in england, and the defendant agreed to pay in exchange indian rupees in india to him for his benefit when he went to india, contrary to the indian foreign exchange regulations, where exchange contracts offending against art viii s 2(b) are unenforceable in england for that reason. these two almost identical cases gave rise to contrasting judgments. the only distinguishing factors are that sharif‘s decision depended on its special facts. with regard to fraud exception sharif decision revolved around the law applicable to cheques and should not be applied to credit. so transactions within england in contravention of exchange regulations of a foreign power are not illegal and are therefore unenforceable under english common law. this was not the scenario of the american accord. in arriving at its decision the courts also provided analogies concerning contracts contravening domestic and foreign legislations. (iii) contracts (other than exchange contracts) contrary to domestic english legislation. in arriving at its judgment the appeal court also considered cases in contravention of domestic legislation or other exchange controls or letters of credit. first, in wilson, smithett & cope ltd v terruzzi,96 the court decided that contracts for the sale and purchase of metals between brokers on the london 94 [177] court of appeal transcript 197 b. 95 for “the scope and interpretation of article viii(2)(b)”, see proctor, supra, paras 15.12-15-35 pp 378-407. 96 [1976] 1 all er 817. the denning law journal 136 metal exchange and a dealer in italy, who entered into them in breach of the italian exchange control regulations, were legitimate sales contracts and, though involving the currency of italy, were not contracts to exchange one currency for another and were therefore enforceable by the brokers. according, as they were not exchange contracts, art viii s 2(b) had no application. secondly, the terruzi decision should be contrasted with ralli brothers v compania naviera sota y aznar 97 where in an allied but distinct principle the courts decided that they would not enforce a contract in a foreign country if performance had become illegal by laws of that country. aznar involved english chaterers of spanish shipowners to carry cargo from calcutta to barcelona at £50 per ton; a supervening spanish decree put the freight ceiling to 875 pesetas (slightly less than £50 at the then exchange rate). in a claim by the owners for recovery of the full freight, the court held that they could not recover the excess. thirdly, in ragazzoni v k sethia 1944) ltd.,98 the courts refused to enforce a contract for the purchase of jute from india for resale in south africa when the parties knew that the exporting of jute from india to south africa was prohibited by indian law. and finally, in foster v driscoll99 the court refused any relief to the parties to an agreement to sell whisky in the us in contravention of the prohibition laws. these decisions are nevertheless distinguishable from the american accord for a number of reasons. first, although contravening local legislation they were not exchange contracts. secondly, they did not revolve around letters of credit, although they might have been used for payments therein. furthermore, the transaction in ralli brothers was not illegal ab initio; it only subsequently became so whereas in the american accord, sharif and betram, they were illegal from start. so once again we are not any wiser as to why these cases were cited in the judgment except, perhaps, to demonstrate the difference between contracts in contravention of domestic legislation compared to those against. the courts then moved on another common law doctrine: severability of contracts (b) on severability of the sales and exchange contracts (i) application of the principle of severability in contracts in reviewing sales contract from exchange contract, the aim in the american accord was to see whether the legal (goods transaction) part of the contract for which value had been received (sales contract) from the illegal (monetary transactions) part involving transfer of currency for which no value 97 [1920] 2 kb 287. 98 [1957] 3 all er 286. 99 [1929] 1 kb 470. the denning law journal 137 had been received (exchange contract). unfortunately in the process, the courts without any rationale got themselves muddled with the issue of severable contracts.100 at common law where a contract is severable, a breach may be found to constitute a default as to only the specific part breached, thus relieving the defaulting party from liability for damages for breach of contract. this is the case both under english and american law.101 however, according to lord diplock, above,102 it was not strictly accurate to talk of severability in the american accord. rather, he thought that the task of the court was to penetrate any disguise to identify any monetary transactions which the words intended to conceal and to refuse to enforce the contract to the extent that to do so would give effect to the monetary transaction. on this point, the court of appeal and the house of lords both agreed that the seller was entitled to judgment for that part of the relevant instalment (i.e. sales contract) which was not a monetary transaction in disguise. this aspect of the house of lords judgment is interesting for the following reasons. first, it provides a clear authority for the narrow or restrictive interpretation of “exchange contract” and the difference in the anglo-american and european jurisprudence.103 although there is some european support for the wider or liberal interpretation,104 the american courts have favoured the narrow approach and this can be justified by the referenced to “currency” rather than “exchange resources” in the order.105 secondly, the house of lords uncharacteristically supported lord denning’s approach in the terruzzi case of looking to the substance and not the form of the contract-the liberal approach. it will be remembered that this equitable approach was adopted by lord denning in reliance on nussbaum’s,106 where he referred to “monetary transactions in disguise.” lord diplock also adopts the phrase but for some reason appears to attribute it to lord denning. thirdly, the house of lords 100 for severable contracts at common law see, the case of nicolene ltd v simmonds [1953] 1 qbd 543. 101 for the us see the uniform commercial code para 2-612 especially with respect to instalment contracts. see also the case of sherwood & roberts-yakima, inc v cohan, 2 wash app 703, 469 p2d 574, 578, 582 with respect to severability clause, severability doctrine. 102 see note 78 supra. 103 for an early interpretation of this provision by the executive board of director of the imf see (1954) 3iclq 262. 104 see f a mann, the legal aspects of money, (4th edn) 383 et seq where he cites german cases. however, in a later edition (5th edn, 1992, clarendon press, oxford) of the book mann is very critical of the american accord decision, see p 375. 105 see banco do brasil, sa v israel commodity co 239 nys 2d 872, 874 and j zeevi & sons ltd v grindlays bank (uganda) ltd 371 nys 2d 892, 900. 106 supra at 427. the denning law journal 138 adopted what lord denning mr said about the meaning of “unenforceable.”107 in that case lord denning said that it did not make the contract illegal. he opined that the word should be interpreted to promote the general legislative purpose which here meant that the court itself must take the point. in so doing lord denning was continuing his wider interpretation approach for which he was well known. fourthly, the house of lords, like the court of appeal, disagreed with mocatta j, who at the trial stage held that the whole documentary credit was “tarred with same brush.” the appellate courts held that only the part of the amount which represented the monetary transaction in disguise was so tainted. this was probably the only ground on which the two upper courts agreed. on the other hand this simply meant that it would not be enforced by the courts but not that it is illegal. upon this reasoning, the confirming bank could have resisted payment of that part but there was nothing to prevent it under english law from paying out voluntarily.108 however, one would go one stage further and suggest, as mocatta j did, that the whole contract was tarnished and therefore should have been declared illegal and unenforceable. lord denning in the court of appeal approached it from this policy perspective. to decide otherwise would have been harsh as it would have deprived sellers for value provided and the assignees (bona fide purchasers or holders in due course). it is probably this consideration, more than anything else that swayed the house of lords. this english law approach is different from that of american law and is inconsistent with the principle of the autonomy of the documents to which they had given primacy on the documentary credit front.109 in the american case of j zeevi & sons ltd v grindlays bank (uganda) ltd.,110 which does not appear to have been cited, the new york court of appeal, adopting the narrow view, held that a letter of credit was not an exchange contract.111 it is, however, difficult to see why not. besides that case was really on discrimination rather than fraud in credit transactions which arguably falls outside the fraud exception rule anyway. be that as it may, both the trial court and the house of lords were wrong to delve into these irrelevances and at such length. first, the issues of severance were not pleaded by the plaintiff at the lower levels. secondly, on the basis of the above arguments it was unnecessary for courts to delve into those issues. it was irrelevant whether severance was applicable because the whole object was to transfer foreign currency in contravention of 107 in an unreported case of batra v ebrahim [1977] court of appeal transcript 197b. 108 [1982] 2 all er at 730 g-h. 109 see american case of stechy; f.a mann, supra, at 391. 110 371 nys 2d 892. 111 for a strong criticism of the case, see, john s williams, cornell lj, vol 9 (1975) 239 at p 243. the denning law journal 139 peruvian exchange control regulations and once that was proved then the claim was untenable. it is not that the doctrine is irrelevant under common law but rather not one to be used, as in this case, to aid the parties. could the third, and final, doctrine refereed to (equity) be of any use? (ii) validity of the application of equitable doctrine approach in addition to unenforceability for reasons of illegality and the doctrine of severance, all considered, the trial court and the house of lords were of the view that it would be inequitable to deny the seller and their assignees the benefits of the sales contract portion of the transaction for which goods had been supplied and received by the buyers. the courts asked themselves whether it would be fair and just and in accordance with the rules of equity112 to hold otherwise. thus, the general approach of the two courts seemed to have been more reminiscent of the common law equitable doctrine of severance and would appear to allow the courts more scope than would the common law. their lordships clearly felt that there was no illegality and that as between the parties one was more to blame than the other but that not all should suffer. however, to benefit at equity a party seeking equitable remedy should have “clean hands” and clearly none of the parties (accept perhaps the assignee) in the american accord had “clean hands” and therefore neither should have benefited from the contract. although not proven as his act, the seller knew of, and benefited from, the alteration of the date on the bill of lading. it would not be surprising if he had a part in it. on the over invoicing, stephen lj lifted the veil, so to speak, above, when he opined that, “the sellers knew exactly what the buyers were up to. they went along with it for no other motives than greed. there was no evidence that there was any undue pressure or duress exerted on them. they did not come forward and if the bank itself had not discovered the fraud the pair of them would have got away with it.”113 but then equity is in the realm of the discretion of the judges and cannot be questioned. thus, although neither of the parties “prayed”, the judges had the discretion to raise the matter. 112 originating from the latin word aequus meaning fair and encapsulating impartiality and natural justice, it is a body of rules existing by the side of the original civil law, founded on distinct principles and claiming incidentally to supersede the civil law in virtue of a superior sanctity inherent in those principles, and, a system of doctrines and procedures which developed side by side with the common law and statute law , having originated in the doctrines and procedures evolved by the court of chancery in its attempts to remedy some of the defects of the common law. 113 [1981] 3 all er 142. the denning law journal 140 the american accord also dealt with wider trade and financial matters such as over-invoicing in international trade and foreign exchange regulations, thereby confirming its importance in international trade jurisprudence. financial and policy considerations (a) on over/under invoicing and foreign currency exchange controls regulations. (i) over-invoicing of imports and under-invoicing of exports and the wto agreement. the american accord also dealt with some interesting points of private and public international law relating to currency exchange or exchange controls, i.e., domestic legislation placing limits on the holding, trading or other use of foreign currency.114 the transaction violated the peruvian exchange control regulations. by article 1 of the peruvian decree law 18275 of 15 may 1970, “from the date hereafter it [was] prohibited for individuals or corporations resident in peru, with the exception of banco central de reserva del peru and banco de la nacion, to maintain or establish deposits in a foreign currency in banks and other institutions in this country and/or abroad.” by article 18 of the same law, “it [was] an offence of fraud against the state to maintain foreign currency or to perform any type of operation prohibited by this decree law”, and more importantly by article 7 of decree law 18891 of 17 june 1971, “the over-valuing of imports and obligations payable in a foreign country, as well as the under-valuing of exports, in violation of what [was] provided for in the foreign currency certificates regulations, [constituted] the offence of fraud damaging to the state. any offence referred to in the previous paragraph [was to be] penalised as stated in article 19 of decree law 18275.” first, is the issue of exchange control generally. exchange controls are often imposed by a government, mostly of developing countries, faced with balance of payments deficits or a currency not easily convertible into other currencies. this is normally achieved by the central bank or finance ministry 114 measures are normally taken to ration or prohibit dealings in hard currencies especially in developing countries with balance of payments problems, see gold, j, the fund agreements in courts 54, and gold j, the fund agreement in courts, parts viiixi 43 et seq. the denning law journal 141 passing a law regulating foreign currency trading and determining how foreign exchange is spent usually by issuing exchange permits for foreign exchange. often traders who have either exhausted their quota or are greedy tend to resort to other means, such as over invoicing of imports or under invoicing of exports, to have access to foreign currency. this is made possible by an overseas buyer or seller’s collusion. reasons for control range from stemming an overrun on the economy to petty nationalism. the general principle of english private international law is that exchange control legislation of a foreign country will be enforced where the object is to protect the economy of that country. the only exception to the principle seems to be where the exchange control in the foreign country is used as an instrument of oppression or discrimination.115 reasons for peruvian regulations were neither given nor were they relevant. no oppression or discrimination was pleaded or alleged in the american accord, thus, it was immaterial. the relief would not be available in that case. secondly, is the status of exchange controls under english law. although the practice is known to common law, it had not come before an english court until this case. neither had it come altogether in combination with a credit transaction. the principle is founded both in common law, comity and enforcement of international obligations resulting from agreements, conventions and treaties. it will be remembered that the bretton woods agreement which set up the imf and the world bank is consistent with both the principle and its exceptions. the courts should have had the courage to deal with it as a new situation. instead they (the courts) allowed that portion which, in their opinion, did not violate the peruvian exchange control regulations. the whole transaction should have been disallowed as tainted. (ii) the meaning of “oppression” and “discrimination” in the imf agreement and foreign exchange control regulations. it will be remembered that one of the exceptions to enforcement, by english courts, of foreign exchange controls regulations is where it would be oppressive and their lordships agreed on the general principles of english private international law that exchange control legislation of a foreign country will be enforced where the object is to protect the economy but not where it is used as an instrument of oppression or discrimination. however, it is not clear what the courts meant by “oppression” and “discrimination” in this respect. was the aim to stop a state oppressing or discriminating against its own citizens or citizens of another country? a type of national treatment perhaps! there was no guidance from the decision on the nature and extent of the 115 on this point see discussions on the next sub-paragraph immediately below. the denning law journal 142 subject. however, in ordinary context “oppression”116 and discrimination”117 should be assigned their natural meanings. in legal contexts oppression118 and discrimination119 mean almost the same. it is, however, unclear whether what the economic meanings of the two terms are. however, we get the clue from a number of other sources. first, from mann who says, “yet it would seem that, although exchange control regulations as a whole may be maintained consistently with the fund agreement, certain of their specific effects may be such as to require or permit the refusal to apply them in a given case on the grounds of public policy. this may occur when their application may be discriminatory or penal in character or otherwise obnoxious. there is nothing in the fund agreement that would compel the courts in a given case to reach decisions which are offensive to their sense of justice; they are precluded only from ignoring member state’s exchange control regulations as a matter of principle or of a priori reasoning. it is likely that such is the rationale underlying an important, but not altogether clear, decision of the dutch hoge raad, which rejected indonesian exchange control regulations. public policy ought to have been and perhaps was one of the reasons why the new york court of appeals in zeevi v grindlays bank disregarded ugandan exchange control restrictions: ‘as typified by strong antiisrael and anti-semitic suggestions made by uganda’s president to the secretary general of the united nations’, the bank of uganda purported to cancel all payments to israel companies such as the plaintiffs and the defendant relied on those cancellations, described by the court as ‘confiscatory and discriminatory acts of the ugandan government’, to avoid liability under an irrevocable letter of credit validly opened before the date of the directive; this surely was contrary to ordre public and could not afford a defence.”120 116 from the word to oppress meaning, “to treat with tyrannical cruelty or injustice” chambers twentieth century dictionary, 1979 edition p 924 column 2, w&r chambers ltd, edinburgh. 117 generally meaning to treat unfairly differently, ibid at p 369 column 1. 118 “the exercise of authority or power in a burdensome, harsh or wrongful manner, unjust or cruel treatment of subjects, inferiors; the imposition of unreasonable or unjust burdens”: oed definition adopted in r v fulling [1987] qb 426. “oppression includes torture, inhumane or degrading treatment, and the use of or threat of violence (whether or not amounting to torture)”: p & cea 1984 s 76(8); see also r v ismail [1990] crim lr 109; r v beales [1991] clr 118 119 this is the according of some differential treatment to persons or bodies in the same position, eg sex, racial or nationality. discrimination on the grounds of nationality is prohibited in international by the national treatment principle and in the eu article 7 of the treaty of rome 1957. 120 mann, fa, the legal aspects of money (5th edn, 1992, clarendon press oxford) p 369. in addition to zeevi case, mann cites dallal v iran and bank mellat, int lr 75, 126, at p 149 where justice holtzman quoted this sentence with approvalbut cf dallal the denning law journal 143 secondly, from the wto agreement on psi121 which codified the nondiscrimination requirements in its regulations on double invoicing practices which extends obligations to legislate the requirements to importing and exporting countries when implementing the agreement.122 thirdly, and finally, the bretton woods agreement itself which set up the imf is also consistent with this principle123 of eliminating oppression and discrimination in foreign currency allocations. this was contained in the bretton woods agreement order in council 1946124 made under the bretton woods agreement act 1945 to give effect to the bretton woods agreement in the uk. to policy considerations. this article also asserts that on fraud exception in credit transactions the american accord decision is representative of common law and angloamerican jurisprudence approach. (iii) policy considerations in fraud exception decisions from the above analysis of the american accord and decisions before and after it, there appears to be no logical conclusions that be drawn. it is submitted that the overriding principle was policy rather than purely legal considerations. v bank mellat, [1986] 1all er 239, at p 250 where hobhouse j said that the majority had decided the principle issue ‘in somewhat idiosyncratic manner’; nederlands tijdschrift vor internationaal recht (the dutch hoge raad case), 13 (1966), 69 int lr 40(1970) 7, where the court said that art viii (2)(b) was no obstacle to an assignment in contravention of indonesian regulations, because bretton woods is “intended solely for the regular financial relations between states.” man also thought that “it may well be that the plaintiff in masouri v singh, [1986] 1 wlr 1393 could have invoked public policy”, ibid at p 369. this quotation also appear in the 6th edition of the book, mann on the legal aspects of money, (2005 oxford university press) by proctor, charles (foreword by mann d (son of mann fa)) pp 377-378; for “public policy under the imf agreement” see para15.09-15.13 pp 376-378 (2005 oxford university press). 121 for the wto agreement on psi, see note 2, supra. 122 “user members shall ensure that preshipment inspection activities are carried out in a non-discriminatory manner, and that the procedures are criteria employed in the conduct of these activities are objective and are applied on an equal basis to all exporters affected by these activities. they shall ensure uniform performance of inspection by all the inspectors of the preshipment inspection entities contracted or mandated by them”non-discrimination, art. 2(1) of the wto agreement on preshipment inspection of goods in international trade. other clauses 3(1) on nondiscrimination and article 1(5-8) and (3(2) on transparency. 123 cf. the us supreme court case of kolovrat v oregon 366 us 187. 124 made under the bretton woods agreements order in council 1945, s3. the denning law journal 144 this author has put forward this argument before125 that in these cases courts have been more concerned with preserving the basis upon which the letter of credit and therefore international payment system works: the credibility of the banking system. as early as the sztejn decision in 1941, shietang j, after citing many cases, gave a glimpse to what was to follow when he said, “it is well established that a letter of credit is independent of the primary contract of sale between the buyer and the seller. the issuing bank agrees to pay upon presentation of documents, not goods. this rule is necessary to preserve the efficacy of the letter of credit as an instrument for the financing of international trade.”126 although there are arguments for against policy considerations in judgments, it appears they (the courts) seem to be more concerned with the effect that derogation of such principle, such as the fraud exception, might have. a similar sentiment can be gathered from jenkins j’s statement in hamza mallas that, “the opening of a confirmed letter of credit constitutes a bargain between the banker and the vendor of goods which imposes on the banker an absolute obligation to pay, irrespective of any dispute which there may be between the parties on the question whether the goods are up to contract or not. an elaborate commercial system has been built up on the footing that bankers’ confirmed credits are of that character, and, in my judgment, it would be wrong for this court in the present case to interfere with the established practice.”127 megarry j reiterated similar views in discount records where he noted that, “i would be slow to interfere with bankers’ irrevocable credits and not least in the sphere of international banking, unless a sufficiently grave cause is show: for intervention by the courts that are too ready or too frequent might gravely impair the reliance which, quite properly, is placed on such credits.”128 similar concern was also expressed by kerr j in harbottle where he noted that irrevocable obligations are the “lifeblood of international commerce”129 and that once the merchants had come to an agreement and had assumed the risk commensurate with the wording of their guarantee, the machinery and commitments of the banks “must be allowed to be honoured, free from interference by the courts. otherwise, trust in international commerce would be irreparably damaged.”130 likewise, in state trading corporation of india, lord denning mr obiter dictared that, “i may say that performance bonds 125 see generally, ademun-odeke, “the judicial approach to injunctions in letters of credit and performance bond transactions: the fraud exception re-examined”, denning lj, 1995, pp 35-65. 126 sztejn v j henry schroder banking corporation (1941) 31 nys 2d 631 at 634. 127 hamza mallas [1958] 1all er 262 at p 263. 128 discount records v barclays bank [1975] all er p 1075. 129 r d harbottle (mercantile) ltd v national westminster bank [1977] 2 all er 862 at 870. 130 ibid. the denning law journal 145 fulfil a most useful role in international trade… the courts must see that these performance bonds are honoured.”131 there have been other dicta and pronouncements on letters of credits and performance bonds (which are treated the same) with or without fraud allegations where courts in refusing relief have stressed the importance of preserving confidence in the credit and bond mechanisms. for instance, in power curber international ltd v national bank of kuwait sak, lord denning mr, returned to the theme more emphatically, thus, “if the court of any of the countries should interfere with the obligations of one of its banks (by ordering it not to pay under a letter of credit) it would strike at the very heart of that country’s international trade. no foreign seller would supply goods to that country on letters of credit because he could no longer be confident of being paid. no trader would accept a letter of credit issued by a bank of that country if it might be ordered by its courts not to pay.”132 policy considerations are also used to protect bonafide purchasers or holders in due course as was the case in discount records where lord denning refused injunctive relief to the applicant since at that time the bill of exchange drawn against the credit will have probably passed to an innocent third party and that if the purpose of the injunction was to deny the seller the proceeds of the fraud, the granting of the injunction would not achieve that objective. furthermore it must be remembered that these instruments were developed and used by the banks for their own purpose. if they suffer under their instruments then be it. however, it cannot be forgotten also that in this respect english courts probably have in mind preserving the position of the uk london and as a leading international trade and finance centre and nation, respectively, supported by loyally and obedient judicial, arbitral, shipping and insurance system. it would be unnatural if they didn’t. wider implications of the “american accord” decision (a) in the light of the wto agreement on psi it would be difficult to determine the possible (alternative) outcome of the american accord were it to have been decided a decade later following conclusion of the wto agreement psi, to which both the uk and peru are parties.133 131 state trading corporation of india ltd v e d & man (sugar) [1981] com lr 235. 132 [1981] 3 all er 607 at 613. 133 the agreement deals with over-invoicing and under-invoicing and allows for preshipment inspection of shipment detailsessentially price, quantity and, quality of goods ordered overseas. used by governments of especially developing countries, the purpose is to safeguard national financial interests (prevention of capital flight and the denning law journal 146 psi is important for the countries that participate in it for a number of reasons. it is used: (a) by governments of developing countries to compensate for any inadequacies in the administrative infrastructures; (b) as a way of preventing commercial fraud using shipping, banking or insurance documents; (c) to eliminate customs duty evasions and thereby raising or saving any revenues by the practice of non-declaration or misclassification of goods by eliminating over-invoicing, under-invoicing and; (d) for conservation and avoidance of capital flight by eliminating the practice of over invoicing and under invoicing and to ensure foreign currency is used for essential functions; (e) to provide exporters and importers with extra confidence that the goods match what is specified in the sales; (f) to verify and conform to the rules of origin of the goods; (g) for monitoring of compliance with national regulations; (h) to provide data for statistical purposes; (i) to provide price data for a customs valuation data base; (j) for technical assistance, technology transfer and training; (k) to monitor donor funds and foreign exchange replenishment; (l) to facilitate trade by eliminating delay caused by having to check goods on arrival and the customs process; and (m) to protect consumers. defined broadly,134 the wto agreement psi has been made mandatory for all importable goods except those exempted by about 40-50 developing countries in africa,135 asia,136 latin america137 and the caribbean138 who use the system to: combat money-laundering, fight against international organised commercial fraud as well as customs duty evasion, for instance) to compensate for inadequacies in administrative infrastructures-the very objectives that imf and peruvian exchange regulations sought to promote. prior to the agreement no national or international instrument had dealt with the subject. 134 “ pre-shipment inspection activities are all activities relating to the verification of the quality, the quantity, the price, including currency exchange rate and finance terms, and/or the customs classification of goods to be exported to the territory of the user member” article 1(3), wto agreement on preshipment inspections. 135 angola, benin, burkina faso, burundi, cameroon, central african republic, comoros, cote d’ivoire, condo (democratic republic), congo (republic of ), equatorial guinea, ethiopia, ghana, guinea, kenya, liberia, madagascar, malawi, mali, mauritania, mozambique, niger, nigeria, rwanda, south africa, senegal, sierra leone, somalia, tanzania (excluding zanzibar), togo, uganda, zambia and zanzibar( although part of the united republic of tanzania which includes the island of zanzibar, zanzibar has separate psi programmes. mainland tanzania has an exclusive contract with cotecna covering customs, while zanzibar has one with sgs covering foreign exchange) and zimbabwe. 136 bangladeshi, cambodia, india, indonesia, iran, philippines and uzbekistan. 137 argentina, bolivia, colombia, ecuador, mexico, paraguay, peru , and suriname. 138 haiti. the denning law journal 147 crime and global terrorism.139 thus psi is now used as a world-wide economic programme for the monitoring of imports into developing countries. it has a positive impact on the national budget, terms of trade, balance of payments and general economic development of the psi participating countries. for the purposes of the american accord, objectives (b), (c), (d), (f), (j) and (k) are particularly relevant to this analysis. major trading nations such as the uk have interest in the success of the agreement especially in relation to those in the enumerated paragraphs. therefore, a court ruling such as that of the american accord today would greatly undermine the wto agreement on psi and developing countries’ efforts to restructure their economies and to eliminate money laundering and other types of documentary frauds in international trade. it would provide comfort for money launderers and therefore serve as a crooks charter. (b) crooks’ charter for money laundering and other documentary frauds!? it is not the aim or intention of this analysis to go into detail on money laundering and related activities.140 rather the argument is that the decision, including those before and after it, except beam technologies, would be a crooks’ charter for money-launderers. if all that they would incur is the minimum inconvenience arising from severability of contracts then that is a small price to pay. most money laundering contracts are in fact clothed in the same way as the letter of credit contract. if as in the american accord, courts are not prepared to confront them they will thrive especially at international financial centres such as london. retaining london’s international position is one thing but making it a soft spot for money launderers is quite another. it has been suggested further that, “international trading companies are known to be one of the high risk business areas which lend themselves more readily to potential criminal activities than others”;141 apparently “---because the mechanism of the documentary credit system provides a perfect vehicle for money launderers to launder their criminal proceeds.”142 this would be a natural conclusion since those criminal activities combine the cycle of money laundering itself, placement (cash deposits, wire transfers or other means to place proceeds of crime into accounts of traders/importers/buyers), layering (conversion of cash into letters of credit) and integration (using letter of credit 139 elimination of money-laundering, fight against international organised crime and international terrorism were not among the reasons given for psi. however, in view of recent developments they would be legitimate additions to the functions of psi. 140 for details on money laundering and related activities see note 47, supra. 141 anonymous author, fraud in documentary credit transactions, supra, p 1 142 ibid. the denning law journal 148 transactions to disguise the illicit proceeds and allowing the laundered funds to be disbursed back to the criminal or using illicit funds to repay banks for pretrade finance facilities) into one operation. like money laundering itself, detailed treatment of white collar crime is also outside the scope of this article.143 however, the implications of the decision in the american accord would clearly provide a licence to violate uk international obligations, such as the imf and other agreements, in a number of ways. first, it is of no consequence that such laws are based on common law principles of comity or agreements signed and ratified by the uk. secondly, it disregards other countries legislation, as in this case the peruvian exchange control regulations. thirdly and as constantly argued, in addition to moneylaundering, it would be a license for money launderers to use the letter of credit for such purposes.144 by turning a blind eye and deaf ears to these issues, english courts would be abdicating their responsibility to provide judicial supervision.145 (c) abdication of judicial supervisory duties despite the crucial role of letters of credit in international trade and finance, courts should not lose their supervisory functions. shientang j, himself said that, “the principle of the independence of the bank’s obligations under the letter of credit should not be extended to protect the unscrupulous seller.”146 this was echoed by the new york supreme court decision already cited.147 stephenson lj also opined that, “but i do not think that the courts have a duty to assist international trade to run smoothly if it is fraudulent any more than when it violates and international agreement. banks trust beneficiaries to present honest documents; if beneficiaries go to others (as they have to) for the documents they present, it is important to all concerned that those documents should accord not merely with the requirements of the credit but with the facts, 143 for these and money laundering see generally see note 47 and 138, supra. 144 in addition to the handicap imposed by the autonomy principle and the independence of documents, art 3(a) and art. 15 of the ucp, the practical problem to the banks is that the documents stipulated under a letter of credit are usually received by the bank from a single source, ie, the beneficiary. these documents may be prepared by the beneficiary himself (such as the inspection certificate in beams technologies) and may involve fraudulent situations. 145 see, john walker, “how big is global money laundering”, journal of money laundering control, vol no 1 (1999); and generally wheble, b.s (1993) “documentary fraud in international trade-whose fault, whose responsibility?” icc international maritime bureau. 146 sztejn v j henry schroder bank, supra, at p 634. 147 south western shipping corporation v national city bank of new york (1959) 6 ny 2d 454 . the denning law journal 149 and if they do not because of the intention of anyone concerned with them to deceive i see no good reason when the choice is between two innocent parties putting the loss on the beneficiary, not the bank or its customer.”148 griffiths lj added his views, thus, “ the deal …involved two agreements: first the agreement for the purchase of the machinery, and, second, a collateral agreement by which the glass fibres agreed to provide an inflated invoice and to collect dollars on behalf of the peruvian company through the letter of credit and remit them to the bank in miami. the sole purpose of the second agreement was to enable the peruvian company to exchange peruvian soles for dollars in breach of the peruvian exchange control regulations; it was the device by which an exchange contract was disguised by inflating the invoice to make it appear all part of the commercial transaction for the purchase of machinery. it was precisely the type of agreement that professor nussbaum calls ‘monetary transaction in disguise’149 and which lord denning mr in wilson v smithett and cope ltd v terruzi150 said would be an exchange contract within art. viii, s 2(b) of the bretton woods agreement and made a part of our own domestic law by the bretton woods agreement order in council 1946. his lordship continued that, “-but in this case the court is not dealing with a letter of credit that has been opened solely to pay for goods under a sale contract, nor is it dealing with a dispute between buyer and seller under the sale contract. the facts reveal that the buyer and the seller have conspired together to use the letter of credit as a means of giving effect to an exchange contract in breach of the foreign exchange regulations of peru. is the court to refuse to recognise the reality of the situation and allow effect to be given to the exchange contract because it sits in blinkers looking at the letter of credit in isolation? i find nothing in any of the decisions dealing with letters of credit that leads to this conclusion. they do no more than establish that the bank is not concerned with possible breaches of the underlying sales contract.”151 significantly, and finally the learned lord justice was prepared to be bold and gamble by dissenting departure, “i have, after some hesitation, concluded that this case does not bind me to follow a course of action which would, i think, do a grave disservice to the obligations that this country accepted as party to the bretton woods agreement. as lord denning mr pointed out in batra v ebrahim152 [the court itself was under a duty to take the point of unenforceability under the 1946 order in council irrespective of the wishes of the parties to the litigation. in my opinion the court should not shirk its duty by turning its back on the reality of the situation. once it sees that the 148 [1981] 1 all er at 161. 149 (1949) yale lj 421 at 427). 150 [1976] 1 all er 817 at 823 , [1976] qb 683 at 714. 151 ibid . 152 [1977] court of appeal transcript, 197b. the denning law journal 150 real purpose of the letter of credit is in part to give effect to an exchange contract in breach of the peruvian exchange control regulations the court should refuse its assistance and decline to give judgment for such part of the claim that relates to the exchange control.”153 thus, for once a learned judge was prepared to break ranks with the others and with precedence to examine wider views and probably to appreciate the reality of the matter. he was to be joined much later by justice chao hick tin in beam technologies. (d) revision of the ucp 500: the uncitral model and the ucc approaches (i) revision of the ucp in addition to the strict interpretation of english and other common law courts on the fraud exception the other problem is failure by the ucp to-date to tackle the problem of fraud head on. it has been suggested in this article that that failure has provided comfort to money launderers, documentary fraudsters and other white collar crimes. there is no provision for fraud in the ucp to balance the autonomy principle contained in article 3 thereon. this and other existing articles do not address or elaborate on the rights and obligations of the various parties involved in the letter of credit transactions in the event of fraud. the doctrine of strict compliance, which is one of the fundamental doctrines in the letter of credit jurisprudence all over the world, is also not elaborated in the ucp 500. the provisions of article 15 exonerating banks from liability or responsibility for the form, sufficiency, accuracy, genuineness, falsification or legal effect of any documents is neither defence nor comfort to them when faced with claims however fraudulent. the american accord has demonstrated that the bank may have to pay up even when it knows of fraud so long as it is not committed by the seller or other beneficiary. yet fraud is a real issue which exists in documentary credit transactions and remains a testing issue for many buyers and their banks caught up in this dilemma. ellinger154 has documented the shortcomings of the ucp 500 in its 13 year life and those of its predecessors. avoiding the risks of repeating oneself, suffice to point out that among the reforms, the proposals for revision of the ucp, which this author shares, include: (a) improvement of the desired scope of application of the ucp, (b) introduction of a new 153 ibid. 172. 154 ellinger ep “the ucp-500: considering a new revision” lm&clq 2004, pp 30-45; for his earlier contributions see: [1984] lm&clq 578; [1994] lmclq 377; the tender of fraudulent documents under documentary letters of credit (1965) 7 malaya law review, 24 at 25-26. the denning law journal 151 classifications of letters of credit according to their tenor rather than the form assumed by the issuing bank’s undertakings, (c) strengthening the position of negotiating banks by providing more protections and clarifying the provisions of the ucp, (d) cleaning up the whole areas of autonomy and strict compliance, (e) improving the rejection procedures to give banks more time to examine and investigate with being assumed to have accepted the documents by default, (f) introduction of articles dealing with jurisdiction and the law applicable; and (g) introduction of a provision of arbitration clause and dispute resolutions to say icc to take the heat out of the courts. it is not the courts duty to formulate any changes. and even if it were, with due respect, courts have developed self importance in themselves to be of any further meaningful changes. (iii) the ucc approach the second or alternative way out is to adopt the parallel provision of the ucp in the usa, the ucc which provides a more systematic approach to fraud. these are. first, if a presentation is made which appears on its face strictly to comply with the terms and conditions of the credit, but a required document is forged or materially fraudulent, or honour of the presentation would facilitate a material fraud by the beneficiary then (a) the issuer shall honour the presentation, if honour is demanded by (i) a nominated person who has given value in good faith and without notice of forgery or material fraud, (ii) a confirmer who has honoured its confirmation in good faith, (iii) a holder in due course of a draft drawn under the letter of credit which was taken after acceptance by the issuer or nominated person or (iv) an assignee of the issuer’s or nominated persons deferred obligation that was taken for value and without notice of forgery or material fraud after the obligation was incurred by the issuer or nominated person, and (b) the issuer, acting in good faith, may honour or dishonour the presentation in any other case. secondly, if the applicant claims that a required document is forged or materially fraudulent or that honour of the presentation would facilitate a material fraud by the beneficiary or the issuer or the applicant , a court of competent jurisdiction may temporarily or permanently enjoin the issuer from honouring a presentation or grant a similar relief against the issuer of other persons only if the courts find that (a) the relief is not is not prohibited under the law applicable to an acceptable draft or deferred obligation incurred by the issuer, (b) a beneficiary, issuer, or nominated person who may be adversely affected is adequately protected against loss that it may suffer because the relief is granted, (c) all of the conditions to entitle a person to the relief under the law of this state have been met, and (d) on the basis of the information submitted to the court, the applicant is more likely than not to succeed under its claim of forgery or material fraud and the person demanding honour does not qualify for the denning law journal 152 protection under subsection (a). however, these approaches would be struck out in english courts as counter to the autonomy principles. (iv) the unctral model approach an alternative is the uncitral model on fraud. the model has two distinct provisions on payment obligations exception (the equivalent of fraud exception) and on court measures. first, on payment obligations exception (equivalent of the ucp fraud exception) article 19 of the uncitral convention on the independent guarantees and stand–by letters of credit provides as follows.155 the uncitral model would be a significant improvement to the solution on fraud. however, as the title suggests these apply only to separate independent guarantees rather than to the general guarantees provide by the issuing bank in credits. even if it was to come into 155 “(1) if it is manifest and clear that: (a) any document is not genuine or has been falsified: (b) no payment is due on the basis asserted in the demand and supporting documents; or (c) judging by the type and purpose of the undertaking, the demand has no conceivable basis, the guarantor/issuer, acting on good faith, has a right, as against the beneficiary, to withhold payment. (2) for the purpose of subparagraph (c) of paragraph (1) of this article, the following are types of situations in which a demand has no conceivable basis: (a) the contingency or risk against which the undertaking was designed to secure the beneficiary has undoubtedly not materialised; (b) the underlying obligation of the principal / applicant has been declared invalid by a court or arbitral tribunal unless the undertaking indicates that such contingency falls within the risk to be covered by the undertaking; (c) the underlying obligation has undoubtedly been fulfilled to the satisfaction of the beneficiary; (d) fulfilment of the underlying obligation has clearly been prevented by wilful misconduct of the beneficiary; (e) in the case of a demand under a counter-guarantee, the beneficiary of the counter-guarantee has made payment in bad faith as guarantor /issuer of the undertaking to which the counter-guarantee relates. (3) in the circumstances set out in subparagraphs (a), (b) and (c) of paragraph (1) of this article, the principal/applicant is entitled to provisional court measures in accordance with article 20; cf the icc rules the denning law journal 153 force it would have competition from the tested and tried ucp. there would have to be an express provision to that specifically applicable to and covering credit in the ucp. the long term solution therefore lies with the revision of the ucp secondly, the model also provides for provisional court measures include the following provisions.156 for the same reasons as in the payment obligations’ exception above, this would probably run counter to the autonomy principle as interpreted by english courts. conclusion beam technologies has demonstrated that it is perhaps high time english courts reassessed their approach to various aspects of fraud affecting letters of credit and performance bond transactions by revisiting the american accord, and cases before and subsequent to it. however elaborate the credit contract or the ucp, in the ultimate, though, and regardless of details set out in any standard terms and conditions such as the ucp, the construction of contractual terms remains in the hands of courts. courts therefore still wield a lot of power which they could use for the good. first, with regard to the autonomy principle, courts should uphold the principle only in as far as is necessary to facilitate the use of the payment system in international trade. it should not be used as a buffer to protect unscrupulous beneficiaries as was the case in the decisions reviewed hereunder. the application of this principle regardless does not yield unpleasant results but 156 “(1) where, on an application by the principal/applicant or the instructing party , it is shown that there is a high probability that, with regard to a demand made, or expected to be made, by the beneficiary, one of the circumstances referred to in subparagraph (a), (b), and (c) of paragraph (1) of article 19 is present, the court, on the basis of immediately available strong evidence, may: (a) issue a provisional order to the effect that the beneficiary does not receive payment, including an order that the guarantor /issuer hold the amount of the undertaking, or (b) issue a provisional order to the effect that the proceeds of the undertaking paid to the beneficiary are blocked, taking into account whether in the absence of such an order the principal/applicant would be likely to suffer serous harm. (2) the court when issuing a provisional order referred to in paragraph (1) of this article, may require the person applying therefore to furnish such form of security as the court deems appropriate. (3) the court may not issue a provisional order of the kind referred to in paragraph (1) of this article based on any objection to payment other than those referred to in subparagraphs (a), (b), and (c) of paragraph (1) article 19, or use of the undertaking for a criminal purpose.” the denning law journal 154 puts banks in very difficult situations where they are ‘damned if they don’t pay and are damned if they do’. it is understandable that courts are trying to protection the interest of the third party bona fide purchaser but that desire should be balanced against the equally legitimate interests of the buyer and his bank as other innocent parties. secondly, courts should not consider the autonomy principle and fraud exception outside other principles such as the doctrine of strict compliance. in the american accord, the requirements of the doctrine were not fulfilled and, if pleaded, would have protected the buyer and paying bank. the tender of a forged bill of lading did not constitute valid tender under the doctrine of strict compliance. a more liberal approach would have yielded alternative and correct results. yet the doctrine of strict compliance, which is one of the fundamental doctrines of letters of credit law the world over, is not elaborated in the ucp 500, the only reference being art.13 (a). thirdly, regarding the fraud exception it self, courts should not limit the exception to only fraud committed by the seller (although that is the commonest) but should include all frauds affecting the credit. in that context it was un-necessary for the court to delve into common law principles as to whether the contract was severable, illegal or unlawful including the equitable doctrine. those were distractions from the principal issues. fourth, courts (especially the house of lords) should not have abdicated their judicial supervisory responsibilities. in particular they should have provided protection to all concerned parties to the contract. it is the courts’ duty to ensure that the letter of credit is not used for purposes other than that for which it was established. it was also imperative on the court to uphold the bretton woods system to which this country is party and has implemented through both a principal and subsidiary legislation. the courts should have been brave and adventurous and should have adopted wider and liberal approach as adopted by denning lj, griffiths lj and lane lj above, as opposed to the narrow and restrictive diplock lj approach. fifth, the decision has various other implications. one is whether the court would be in position to implement the wto agreement on psi, one of whose aspects deals with over-invoicing in international trade. as a member state, the uk will no doubt be implementing the agreement in the near future. as already alluded to, the wto agreement on psi, negotiated in the uruguay round, attempts to strike a balance between the concerns expressed by exporting enterprises in developed countries and the need to safeguard the essential interests of developing countries that consider psi services useful. it is supposed to clarify that its provisions apply to psi activities carried out in exporting countries, such as the uk, that are contracted or mandated by the governments. sixth, another implication of the decision is that it would give succour to money laundering, white collar crimes and other documentary the denning law journal 155 frauds in international trade. letters of credit transactions are susceptible to fraud and various money-laundering activities. it will be a pity if a contract partly of sale of goods and partly money-laundering received the same treatment in court as did the american accord. on the basis and principle of the decision it would not be surprising if the courts sought to separate the unenforceable money laundering aspects from the legitimate sale of goods aspects if such a case came before the court today. seventh, and finally, it may be advisable to follow the singapore decision by adding nullity of the fraudulent documents as an exception to fraud. the approach adopted by the singapore court (above) was bold, innovative and courageous and merits consideration. eighth, and finally, it is probably high time that the ucp is amended in its next version to include issues raised herein. in it its current form the ucp is quite contradictory. on the one hand it provides for the rules but on the other hand, by providing for the autonomy and doctrine of strict compliance, it ties the banks’ hands. but above all, currently there are no direct and clear provisions for fraud in the ucp. nevertheless fraud in letters of credit is a real issue. priority in the amendments should include clear provisions on fraud including the nullity exception. the fraud should be irrespective of which party commits or causes it. this might lead to litigation and a field day for lawyers but it is a small price to pay to protect both parties, for justice and fairness and to fight money laundering and other documentary frauds. the denning law journal 156 ademun-odeke ** abstract the “american accord” and the fraud exception (v) fraud committed by a third party with or without sellers or beneficiary’s knowledge-the nullity exception. the liberal v the strict interpretation (a) the liberal v the strict judicial approach (b) foreign exchange contracts v sales’ contracts common law jurisprudence on fraud exception financial and policy considerations (i) over-invoicing of imports and under-invoicing of exports and the wto agreement. wider implications of the “american accord” decision (b) crooks’ charter for money laundering and other documentary frauds!? (c) abdication of judicial supervisory duties (d) revision of the ucp 500: the uncitral model and the ucc approaches conclusion microsoft word 23 6 sargent v 2.doc 131 the denning law journal 2011 vol 23 pp 131-162 trapped in legal discourse: transracial adoption in the united states and england sarah sargent* “making the nabsw the villain of the story, making that group responsible for why black children were disproportionately in the child welfare system, misses that organization’s real and substantial contribution to this debate: it tried to call attention to the ways black single mothers are targeted by the child protection systems, and tried to defend those mothers”1. there are large numbers of ethnic minority children in state child care that are awaiting adoptive families. for many, these adoptive families never materialise. this is true in the united states as well as in england. some argue that the solution is to promote transracial adoption—for white adoptive families to adopt ethnic minority children. the idea of transracial adoption is a highly emotive one, bringing together issues of race and adoption, both of which on their own can bring forth strong visceral reactions.2 this article contrasts laws in the united states and england that govern transracial adoption of children from the state child care system. the purpose of the comparison in this article is not to identify the positive and negative aspects in each approach, nor yet to propose that one is advantageous or superior to the other. a combination of critical race theory and autopoetic theory is used to show that the intention of transracial adoption laws has never, in fact, been to reduce the number of waiting ethnic minority children—despite the rhetoric that sounds in favour of transracial placements. it is not, despite claims to the contrary, a child centred practice with the ultimate aim of benefitting children. in transracial adoption, the social expectation is about preserving racial hierarchies in society, not about * lecturer in law at the university of buckingham. this article is dedicated to the memory of my godmother, becky vaughan, a founding member of the national association of black social workers (nabsw). 1 l briggs “somebody’s children” (2009) utah law review 422 at 454. 2 see, for instance, r-a howe “redefining the transracial adoption controversy” (1995) 2 duke journal of gender, law and policy 131 at 131. trapped in legal discourse: transracial adoption in the united states and england 132 transcending them.3 transracial adoption does not play a role in overcoming or changing existent social structures and hierarchies. it simply reinforces and replicates them. the use of critical race theory and autopoietic theory will be used to show that transracial adoption is about satisfying the desires of prospective adoptive parents, and not about responding to the needs and interests of the large numbers of ethnic children in child care awaiting adoption. critical race theory and autopoietic theory race and the place that race-consciousness should have in society, in the legal system, and in decisions regarding the adoption of children in state care, if at all, is a contentious issue.4 it is a discussion that polarises—with opposing views emotionally and passionately presented and defended. race and adoption are issues which can bring strong visceral reactions to the fore of analysis and debate—even in legal academic discussion. the emotive content is very much part and parcel of these topics. it must be acknowledged in any analysis of transracial adoption. because of this, any discussion on transracial adoption should identify its analytical standpoint for discussion, ontological and epistemological view from which transracial adoption is being discussed and considered. this article uses critical race theory and autopoiesis to consider the legal system and its discourse on transracial adoption. of course to do so breaks with the usual way in which race and law are discussed—or perhaps more importantly not discussed. this is pointedly underscored by the work of shani king, who observes the dearth of critical consideration of the links between race and law in most family law textbooks.5 the discussion never advances beyond whether or not transracial 3 t perry “the transracial adoption controversy: an analysis of discourse and subordination” (1993) 21 review of law and social change 33 at 104 comments that “choosing across racial lines [for adoption] is reserved for whites” at 104, with the expectation asserted that “white parents can parent whatever child they choose” at 107, that being ethnic minority infants. she further comments that “[t]ransracial adoption is a struggle over black babies...not the full range of black children available.” at 86, emphasis added. see also p quiroz “color-blind individualism, intercountry adoption policy and public policy” (2007) 34 journal of sociology and social welfare 57 at 57, who states that “the real issue continues to be which children are desired by which parent.” 4 howe n 2 above at 131. 5 s king “the family law canon in a (post?) racial era” (2011) 72(3) ohio state journal 575. the denning law journal 133 adoption serves the best interests of the child.6 but that is not the only shortcoming regarding the way in which race and family law is discussed: “instead of engaging in a thorough discussion of the impact of the child welfare system’s impact on african-american families, family law casebooks focus on foster care in the context of adoption—such as the indian child welfare act (icwa)—and frame racial issues around the pros and cons of interracial adoption...in short, the family law casebooks are part of the family law canon that fails to accurately and adequately describe the relationship between family law and race.”7 the very important consideration of how ethnic minority children enter and remain in state care systems in disproportionate percentages does not factor into these texts. instead transracial adoption is presented as a cure to a situation whose root causes have not been adequately explored. the fallacy of simply accepting transracial adoption as a cure without further exploration of the underlying dynamics and causes is aptly described by ruth-arlene howe: “...it was very simplistic and unethical to assume that the best way to meet the physical, social and emotional needs of black foster children was by eliminating the practice of “same-race” placements and promoting transracial adoption (tra). it’s like building a hospital at the bottom of a cliff to treat victims of car crashes, instead of posting speed warnings and erecting a fence or other guardrail at the top to prevent cars from plunging down the cliff side.”8 despite the silence that is maintained about discussions on race and the law in the family law canon, there are other growing areas of legal scholarship that focus on not only this relationship but on the silence on it that has been maintained in much of legal discourse. critical race theory has added a valuable perspective to discussions on race and the law.9 it is an approach to discussing, analysing and theorising about the relationship between race and law that arose from post-civil rights society to ‘understand and come to grips with the more subtle, but just as deeply entrenched, varieties of racism that 6 ibid at 615-616. 7 ibid. 8 r-a howe “race matters in adoption” (2008) 42(3) family law quarterly 465 at 468. 9 see generally “introduction” in r delgado and j stefancic (eds) critical race theory: the cutting edge (temple university press, 2nd edn, 2000). trapped in legal discourse: transracial adoption in the united states and england 134 characterize our time’.10 but critical race theory brings more to analysis than a textured approach to dealing with issues of race and racial subordination. it is an approach that sees much inadequacy in the status quo and long prevailing approaches in dealing with these issues: “virtually all of critical race theory is marked by deep discontent with liberalism, a system of civil rights litigation and activism characterized by incrementalism, faith in the legal system and hope for progress, among other things.”11 although it might be presumed that racism ceased to be a social issue after the civil rights movement of the 1960’s critical race theory proponents argue that racism remains, as much as ever, albeit in a different form.12 while it might not be as overt as it was prior to the civil rights movement, more covert forms remain.13 as well, critical race scholars contend that there has been a backlash to the civil rights movement which is reflected in laws which have become more punitive towards african – americans in an attempt to restore the social power balance that was upset by the civil rights movement.14 in its departure from liberalism, critical race theory charts a much different approach for legal scholarship as well as the way in which issues of race and society are considered. several defining tenets of critical race theory are important for understanding the content of this approach. firstly is the view that it takes towards the prevalence and persistence of racism in society: “....racism is normal, not aberrant, in american society. because racism is an ingrained feature of our landscape, it looks ordinary and natural to persons in the culture.”15 another important precept is the role that legal scholarship has to play. legal scholarship is not detached and divorced from the realities it examines. rather, there is an active part that legal scholarship can play in addressing racial inequities in society: 10 ibid at xvi. 11 r delgado “critique of liberalism” in critical race theory above n 9, p 1. 12 see discussion below. 13 see discussion below. 14 see discussion below. 15 introduction n 9 above p xvi. the denning law journal 135 “...we need not acquiesce in arrangements that are unfair and onesided. by writing and speaking against them, we may hope to contribute to a better, fairer world.”16 another important component of critical race theory is that of ‘interest convergence’:17 “this concept holds that white elites will tolerate or encourage racial advances for blacks only when such advances also promote white selfinterest. other criticalists question whether civil rights law is designed to benefit folks of color, and even suggest that it is a homeostatic mechanism that ensures that racial progress occurs at just the right pace: change that is too rapid would be unsettling to society at large; that which is too slow could prove destabilizing.”18 discussions of race, privilege and the social construction of these within and as part of the law may be very uncomfortable topics. the critical race perspective challenges the long-dominant positivist law and liberal doctrines that kept a silence over these very issues. in short, critical race theory provides a theoretical basis for examining questions on race and the law. autopoiesis theory is another necessary correlate in the process of trying to understand the legal discourse on transracial adoption in the united states and england. seen through the lens of autopoietic theory, law is a system of communication.19 as a system of communication, law interacts with and interprets the communications it receives from other systems.20 but for those communications to make sense to law, they are reinterpreted within the legal system.21 16 ibid p xvii. 17 ibid p xvii. 18 ibid p xvii. 19 m king “the “truth”about autopoiesis” (1993) 20(2) journal of law and society 218, at 219 explains that “autopoiesis is, then, a theoretical approach to the operations of social systems and their relationships with each other and with the general social environment.” see also m king “children”s rights as communication: reflections on autopoietic theory and the united nations convention” (1994) 57 modern law review 385, 385. 20 see generally c smith “autopoietic law and the ‘epistemic trap’: a case study of adoption and contact” (2004) 31 journal of law and society 318; m king (1994) n 20 above; m king ( 1993) n 20 above at 218; m king “child welfare within law: the emergence of a hybrid discourse” (1991) 18(3) journal of law and society 303. 21 m king (1991) n 20 above at 308-315. trapped in legal discourse: transracial adoption in the united states and england 136 critical race theory scholars have offered a similar perspective as autopoietic scholars as to the role that the law plays in maintaining a social status quo in line with societal expectations. whilst critical race theory does much to uncover the concealment of racial issues within legal discourse, the use of autopoietic theory provides further analytical insight into the legal system communication on transracial adoption. schiff and nobles give a concise explanation of the relationship commonalities and differences between critical legal studies (of which critical race theory is an outgrowth) 22 and autopoiesis theory: “autopoiesis and... cls...share a common starting point in their respective acceptance of law’s indeterminacy, in the sense that the outcomes of legal decisions are not dictated, but involve choice ( they could have been other than what they were). but autopoiesis and cls adopt a radically different approach to the conclusions to be drawn from this. for cls law is politics, and attempts to establish any essential differences between the nature of political and legal decisions need to be unmasked and discredited. by contrast, for autopoiesis, law is not politics, just as it is not economics, or media or general social communication; politics are part of law’s environment which environment it constructs for itself...”23 critical race theory and autopoietic theory share the perspective that law as a system is a reinforcement of social status quo—and not an agent of change—which is expressed in critical race theory as ‘interest convergence’. 24 autopoetic theory shares the view that the legal system does not act as a site of change, but that any change in the legal system merely is reflective of change in society and social expectations: “for autopoiesis, the indeterminacy of all systems ( not just law), and the nature of their respective autonomies....leads to a much reduced role for the kind of choices that could be ascribed as a conscious attempt to develop law or other aspects of society in any direction.”25 22 a harris “foreword: the jurisprudence of reconstruction” (1994) 82 california law review 741 at 741, 743, 745-754; d bell “who”s afraid of critical race theory?”(1995) university of illinois law review 893 at 898-901. 23 r nobles and d schiff a sociology of jurisprudence (hart publishing 2006) law’s politics: criticising critical legal studies p 164. 24 see discussion infra. 25 schiff and nobles n 23 above at 164-166. emphasis added. the denning law journal 137 the legal system has a very simple way of interpreting messages and content from other systems. autopoiesis theory explains that law interprets things in a binary manner26—classifying them as either ‘lawful27’ or ‘unlawful’.28 critical race theory again informs this discussion. harris explains that the united states still uses the system of racial classification that was the result of a ‘justification for slavery.’29 the united states had developed a bifurcated classification where a person was either white or not white.30 this bifurcated way of understanding a person’s race fits neatly into the sort of coding that autopoietic theory accords to how systems classify and understand information. it is why such binary splits are so attractive, prevalent and persistent in legal systems. the legal system understands and operates in this simple language of bifurcated coding, and it is from this language and coding that racial relations have been managed both socially and legally inside the united states. this observation regarding autopoietic view of the legal system is an important one, particularly when addressing a legal issue as infused with visceral emotion and social expectation as that of transracial adoption. legal systems cannot be consciously manipulated to push society in one direction or another. legal systems responds to communications—but do not respond to a conscious choice in such a forthright matter. law delivers what society expects. if the inequity of society is mirrored in the law, a change in the law does not change the inequities of society.31 in so doing however, ‘the law masked the ideological content of race discrimination and the exercise of power required to maintain it.’32 and whilst there might be claims that law no longer operates in this way, harris responds to these claims: 26 m king (1993) n 19 above at 223. 27 ibid at 223. 28 ibid at 223. 29 c harris, “whiteness as property” in ( k crenshaw, n gotanda, g peller, and k thomas eds) critical race theory: the key writings that formed the movement ((1995) (the new press new york) p 278. 30 ibid p 283-284. 31 schiff and nobles n 23 above at 171. schiff and nobles n 23 above further explain that “while autopoiesis accepts that the law constitutes and reinforces inequalities of access found in the economic system, political system, media etc, these inequalities are produced separately within each system” at 171. 32 harris n 29 above at 284. trapped in legal discourse: transracial adoption in the united states and england 138 “although the substance of race definitions has changed, what persists is the expectation of white-controlled institutions in the continued right to determine meaning—the reified privilege of power...”33 this again is something that is a shared view between critical legal studies and autopoiesis theory. schiff and nobles explain: “autopoiesis and cls both acknowledge that disparities in power affect the ability of parties to make legal communications ( namely differentiated access to law) but neither simply equates law with power ( legal right is not the same thing as wealth or the ability to coerce physically). and the claim that law, like politics, is composed of decisions that represent choices between competing values does not mean that these choices are equally open to each and every individual.”34 legal change will not result in societal change—rather societal change and changes in societal expectation result in legal system communication changes. this may be a controversial and even contestable position for proponents of white adoptive parent adoption of black children transracial adoption. this is to be expected as this message about the law removes the mask—it demonstrates the way in which legal discourse perpetuates the inequities in society—as well as the fact that there are such inequities. colour-blind and colour-conscious race is a socially constructed category.35 any discussion about ethnicity or race must first grapple with this idea. the prospect of comparing adoption laws in their approach to race might be seen as being made all more complex because of the differences in social construction of race. as a social construction ‘referents of terms like black and white are social groups, not genetically distinct branches of human kind.’36 the idea of race is simply a reflection of social mores and customs of a given time and place, no more than that. differing classifications of race— indeed the notion of race itself-serves a purpose; it is ‘a means of creating 33 ibid at 287. 34 schiff and nobles n 23 above p 167. 35 see generally a smedley and b smedley “race as biology is fiction, race as a social problem is real: anthropological and historical perspectives on the social construction on race” (2005) 60(1) american psychologist 16. 36 i haney lopez “the social construction of race” in critical race theory n 9 above, p 165. the denning law journal 139 and enforcing social order, a lens through which differential opportunity and inequality are structured.’37 congruent with the way in which the legal system functions, classifications of race are created to maintain a particular status quo, and act as a mirror on social expectations on the way that the social order, privilege and hierarchy should be maintained. a colour-blind approach is one that literally does not ‘see’ colour in the law. as discussed below, this is the position that has been taken in the united states federal law that deals with adoption from state child care. it is the place that english adoption policy seems to be moving. proponents of a colour blind approach to the law present it as a desirable one that acts to provide racial equality in society: “advocates of the color-blind model argue that non recognition by government is clearly superior to any race-conscious process. indeed, nonrecognition advocates apparently find the political and moral superiority of this technique so self-evident that they think little or no justification is necessary.”38 critics of the colour-blind approach –those who call for raceconsciousness in law argue that a colour-blind approach is in fact not neutral and acts as a mask to cover over racial inequities in society: “..the attempt to deny racial consideration, is, at its root, an attempt to hide the underlying racial oppression, a reality no amount of handwaving and obfuscation can eliminate.”39 transracial adoption law, policy and guidance in the united states and england a february 2011 change in english adoption policy is heralded as ending a ban on transracial adoption placements.40 but despite the widespread perceptions, there has never been an outright legal ban on such placements being made. english adoption law, through the adoption and child act 2002, requires that a child’s ethnicity be taken into account when adoption 37 a smedly and b smedly n 35 above at 24. 38 n gotanda “a critique of “our constitution is color-blind” in critical race theory n 9 above at 35. 39 ibid at 37. 40 see for instance, “ministers tell social workers not to bar interracial adoption” february 19, 2011, the guardian, http://www.guardian.co.uk/uk/2011/feb/19/ukinterracial-adoption-social-workers-guidance. trapped in legal discourse: transracial adoption in the united states and england 140 placement decisions are being made.41 but transracial placements were never forbidden. it was thought that social worker reluctance to make transracial placements resulted in a growing number of ethnic minority children awaiting a match with adoptive parents—parents deemed suitable on grounds of an ethnic match—with available transracial placements bypassed to wait for an appropriate ethnic match to turn up. thus, the policy change was announced to underscore that there was no legal ban on transracial adoptions. the new announcement raises several questions about the perceptions that there was a ban on transracial adoption and the response to it. given that english adoption law and policy have never banned transracial adoption, why was the choice made to address this with a policy change? what do both the perception of a ban and the choice of response say about the social expectations in english society? a policy change was not the inevitable choice to try to address the status on the law. other apparent choices include education on the law. what then is significant about the choice of a policy statement? is there a subtle or not so subtle shift towards a colour-blind system and away from a colour-conscious one? this seems evident given the change in statutory guidance language—discussed below.42 if there is a shift away from a colour-conscious system, what does this portend? the united states, in response to a perceived similar situation, passed a federal law in 1996.43 this law limited the circumstances under which an adoption placement decision could take account of the race, colour or national origin of the child or prospective adoptive parent when making adoption placements. these characteristics could be considered only in exceptional circumstances. failure to comply with the federal law attracts heavy penalties—loss of federal funds for non-compliant agencies.44 yet the aggressive approach to promote transracial adoption has been singularly unsuccessful in many respects. there are large numbers of africanamerican children who are legally freed for adoption and yet continue to wait for an adoptive match. statistics on children in the american child care system show that there are 107,000 children awaiting adoption.45 of these, 29 41 see discussion below. 42 see discussion below. 43 see discussion below. 44 the united states department of health and human services levied monetary penalties for mepa-iep violations for the first time in 2003 and a second time in 2005. details of these actions can be found at: http://www.hhs.gov/ocr/civilrights/activities/examples/adoption%20foster%20care/ adoption_case_summaries.html. 45 in the complied statistics, children who do not yet have their parental rights terminated are included in this percentage as well as those children whose parent’s rights to them have been terminated, leaving them legally free for adoption. it also the denning law journal 141 percent of the children are classified as black—in other words, approximately 31,000. 46 the large numbers of black children who are awaiting adoption has not been substantially reduced despite the colour-blind approach mandated by american federal laws. there is a surfeit of statistical data on children in the american foster care system. a snapshot of data shows that in 2010, 12, 795 african-american children were adopted from state care systems.47 this compares to 16, 554 in 200348, 13, 078 in 200749, 14, 211 in 2009.50 according to the comprehensive review of mepa-iep by the evan b donaldson foundation, mepa-iep has been a failure on a number of elements. the evan b donaldson report comments that ‘statistics belie the expectations that transracial adoption would significantly increase adoption opportunities for older black children.’51 moreover, as the report points out, sections of mepa-iep that require recruitment of black foster and adoptive families are poorly monitored—if at all—in contrast to the fierce penalties enacted if race, colour or national origin have been taken into effect when making placement decisions for a child. 52 clearly, a colour-blind approach has not solved the problem of large numbers of black children awaiting adoption. so, why is such an approach still used in the law? why is it not being challenged as having been ineffectual in significantly reducing the number of black children awaiting adoption? and should the english legal drift towards a more colour-blind approach be of concern? adoption laws in the united states are generally presented as being colour-blind. this, however, is a misperception generated from the federal law that governs adoptions from federally funded adoption agencies and state includes children who have been given a case plan goal of adoption, although the rights of their parents have not yet been terminated. 46 data from the adoption and foster care analysis and reporting system (hereinafter “afcars”) administration for families and children, u.s. department of health and human services, shows 64,084 children had their parental rights terminated, with 107, 011 children who either had a goal of adoption or parental rights terminated. data is from “preliminary fy 2010 estimates as of june 2011”, at http://www.acf.hhs.gov/programs/cb/stats_research/afcars/tar/report_18. 47 “trends in foster care and adoption—fy 2002-fy 2010” at http://www.acf.hhs.gov/programs/cb/stats_research/afcars/trends_june2011.pdf (hereinafter “trends”) 48ibid. 49ibid. 50 ibid. 51 evan b donaldson foundation “finding families for african american children: the role of race and law in adoption from foster care” (may 2008) at 34. see discussion at 33-34. 52 ibid at 35-36. trapped in legal discourse: transracial adoption in the united states and england 142 departments.53 it is this law—and only this one-that limits consideration of race, colour and national origin of the child or prospective adoptive placement. but this colour-blind approach has not always been present in domestic adoption laws. the united states adoption law status is somewhat confusing, given that there are multiple laws that cover adoption. there are at least four different legal scenarios for adoption. the current federal law—the multi-ethnic placement act, as amended by the inter-ethnic placement act (mepa-iep) -that restricts the consideration of race, colour or national origin of the child or prospective adoptive placement to very limited circumstances applies only where the child is being placed through an adoption agency or state department that receives federal funding. in most situations, these agencies are ones that provide services for children who are in the state child care system. secondly, adoptions of native american children are governed by the federal indian child welfare act. thirdly, independent adoptions—those done by agencies who do not receive federal funding—are governed by state laws. there can be a great deal of variance in state laws on specifics for adoption. finally, intercountry adoption is governed by the intercountry adoption act (iaa) and its implementing regulations, in force since april 1, 2008.54 until a change made by the inter-ethnic act in 1996, united states federal law permitted taking into account the race, colour or national origin of a child or prospective foster or adoptive placement where the child was being placed through an agency that received federal funding. the original text of mepa states: (1) prohibition -an agency, or entity, that receives federal assistance and is involved in adoption or foster care placements may not- (a) categorically deny to any person the opportunity to become an adoptive or a foster parent, solely on the basis of the race, color, or national origin of the adoptive or foster parent, or the child, involved; or (b) delay or deny the placement of a child for adoption or into foster care, or otherwise discriminate in making a placement decision, solely on the basis of the race, color, or national origin of the adoptive or foster parent, or the child, involved. (2) permissible consideration-an agency or entity to which paragraph (1) applies may consider the cultural, ethnic, or racial background of the child and the capacity of the prospective foster or 53 the multi-ethnic placement act (1994) public law 103-382 as amended by the inter-ethnic placement act (1986) public law 104-88. 54 intercountry adoption act of 2000, public law 106-279. the denning law journal 143 adoptive parents to meet the needs of a child of this background as one of a number of factors used to determine the best interests of a child. 55 this approach, which is very similar in text to the english adoption and child act 2002 provisions, did not forbid the consideration of culture, ethnicity or race. it allowed the consideration of these factors along with other factors to determine if a placement would be in the best interests of a child. the federal law had not yet become colour-blind. but in 1996, amendments to this act changed the entire landscape of child welfare decision making. the changes made by the inter-ethnic placement act limited the consideration of race, colour or national origin to exceptional circumstances. thus, the colourblind approach to adoption became part of the american federal law. the inter-ethnic act placement provisions provide: “…not later than january 1, 1997, provides that neither the state nor any other entity in the state that receives funds from the federal government and is involved in adoption or foster care placements may- (a) deny to any person the opportunity to become an adoptive or a foster parent, on the basis of the race, color, or national origin of the person, or of the child, involved; or (b) delay or deny the placement of a child for adoption or into foster care, on the basis of the race, color, or national origin of the adoptive or foster parent, or the child, involved..”56 this seemingly benign language is not dissimilar on its face to the adoption and child act 2002. however, interpretations issued by the united states department of health and human services ( hhs) made clear that any consideration of race, colour or national origin had to meet exceptional circumstances, and that the ability of parents to meet the cultural, ethnic or racial needs of the child was no longer to be part of decisions as to adoptive placements. a statement from 1998 issued by hhs underscored the impact of this new law: “public agencies may not routinely consider race, national origin and ethnicity in making placement decisions. any consideration of these factors must be done on an individualized basis where special circumstances indicate that their consideration is warranted. a practice 55 multi-ethnic placement act of 1994, public law 103-382. sec. 553. 42 usc 5115a. emphasis added. 56 inter-ethnic placement act, public law 104-88. trapped in legal discourse: transracial adoption in the united states and england 144 of assessing all children for their needs in this area would be inconsistent with an approach of individually considering these factors only when specific circumstances indicate that it is warranted.”57 this interpretation of the statutory language restricts consideration of race, colour and national origin to circumstances where it is seen as necessary after an individual assessment of the child indicates that these need to be taken into account. further guidance explains the constitutional basis of the interpretation as well as giving further detail on the strict limitations of when it would be considered appropriate to give consideration these factors: “the department's policy in this delicate area is guided by a number of complementary statutory provisions: from the perspective of civil rights law, the strict scrutiny standard under title vi, the interethnic adoption provisions and the u.s. constitution forbid decision making on the basis of race or ethnicity except in the very limited circumstances where such consideration would be necessary to achieve a compelling governmental interest. the only compelling governmental interest related to child welfare that has been recognized by courts is protecting the "best interests" of the child who is to be placed. additionally, the consideration must be narrowly tailored to advance the child's interests, and must be made as an individualized determination for each child.”58 the 1996 prohibitions do not apply to children who meet the definitional requirements of being an ‘indian child’59 under the 1978 indian child 57answer to gao questions, etc. http://www.acf.hhs.gov/programs/cb/laws_policies/policy/im/1998/im9803a.htm, information memorandum 98-03, administration for children and families, united states department of health and human services. 58 united states department of health and human services, memorandum, june 4 1997, http://www.acf.hhs.gov/programs/cb/laws_policies/policy/im/1997/im9704a1.htm 59 see section (3) of the inter-ethnic placement act, public law 104-88. the health and human services interpretation was not received without a protest from the american child welfare community. the child welfare league of america objected to the colour-blind interpretation of the new of law with to the then secretary of health and human services, stating that “we are in complete disagreement with the department of health and human service’s interpretation of mepa/iep as effectively disallowing any consideration of race in adoptive and foster care the denning law journal 145 welfare act (icwa).60 the indian child welfare act was passed in 197861 as an american federal law; it applies to all of the states within the united states. it was passed in response to the forced removal of indian children from their homes, resulting in “…an alarmingly high percentage of indian families are broken up by the removal, often unwarranted, of their children from them.”62 the removal was done in accordance with a philosophy that the forced assimilation of indian children was in their best interest.63 icwa created higher standards for the removal64 and reintegration efforts65 to be made for placement decisions. this policy directly contradicts what we know to be best practice in child welfare.” this letter is online at: http://www.cwla.org/programs/adoption/davidsletter.htm. 60 the indian child welfare act was passed in 1978 (public law 95-608). as an american federal law, it applies to all of the states within the united states. for background and purpose on icwa explained in recent scholarship, see generally m corcoran “rhetoric versus reality: the jurisdiction of rape, the indian child welfare act, and the struggle for tribal self-determination” (2009) 15 william and mary journal of women and the law 415, at 428-436; c metteer lorillard “retelling the stories of indian families: judicial narratives that determine the placement of indian children under the indian child welfare act” (2009) 8(2) whittier journal of child and family advocacy 191; p kunsesh “borders beyond borders—protecting essential tribal relations off reservation under the indian child welfare act” (2007) 42 new england law review 15. 61 indian child welfare act of 1978, as amended, 2000, public law 95-608, 25 usc 1901 et.seq. 62 25 usc 1901(4). 63 see, for instance, child welfare league of america apology: http://theacademy.sdsu.edu/tribalstar/resources/files/apologycwla.pdf “between 1958 and 1967, cwla cooperated with the bureau of indian affairs, under a federal contract, to facilitate an experiment in which 395 indian children were removed from their tribes and cultures for adoption by non-indian families. this experiment began primarily in the new england states. cwla channeled federal funds to its oldest and most established private agencies first, to arrange the adoptions, though public child welfare agencies were also involved toward the end of this period. exactly 395 adoptions of indian children were done and studied during this 10-year period, with the numbers peaking in 1967.... i deeply regret the fact that cwla”s active participation gave credibility to such a hurtful, biased, and disgraceful course of action. i also acknowledge that a cwla representative testified against icwa at least once, although fortunately, that testimony did not achieve its end.” 64 see 25 usc 1912(d) and (e). trapped in legal discourse: transracial adoption in the united states and england 146 indian children and for the termination of parental rights66, as well as creating concurrent jurisdiction with tribal courts67, in those instances where the tribal court does not have exclusive jurisdiction.68 there are also provisions for the active involvement of the child’s tribe in the state court case.69 tribal preferences for fostering and adoption placements are to be followed70, and tribal definitions for who comprises the child’s ‘extended family’71 are also to be followed in determination of fostering and adoptive placements.72 the indian child welfare act defines an indian child as a child who is either a member of a federally registered tribe or is eligible for membership in a federally registered tribe and has a parent that is a member of that tribe.73 as the law is written, if a child meets this definition, the law is to apply to the child. this, however, is not as straightforward as it might seem. because of judicial resistance to the icwa, there has been confusion and lack of clarity as to when and whether courts would apply icwa even to those children who do meet the threshold definition of being covered by the icwa. judicial resistance to the act resulted in culminated with the creation of the so-called ‘existing indian family exception’.74 judges used this to decide a child who, 65 removal requires proof of active efforts made to prevent the removal of the children, in contrast to the reasonable efforts that are required by the adoptions and safe families act. active efforts are held to be a higher standard than reasonable efforts. see 25 usc 1912 66 25 usc 1912 (f). requiring proof beyond a reasonable doubt of the need to terminate parental rights, with such proof including that of an expert witness. most state laws require that the case for termination of parental rights be proven by a clear and convincing evidence standard for non-indian children. 67 25 usc 1911 (b). this provision requires the transfer of state court proceedings to tribal court in the absence of any good cause shown. 68 25 usc 1911(a). this provides that “an indian tribe shall have jurisdiction exclusive as to any state over any child custody proceeding involving an indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the state by existing federal law. where an indian child is a ward of a tribal court, the indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child.” 69 25 usc 1912(a)—regarding notice provisions to the child’s tribe. 70 25 usc 1915(a) and (b). 71 25 usc 1915(c). 72 25 usc 1903(2); 1915(a) and(b). 73 25 usc 1903(4). 74 this judiciary end-run on the application of icwa was a judicial creation by the kansas supreme court in the case of in re adoption of baby boy l., 231 kan. 199, 643 p.2d 168 (1982). kansas finally abolished the doctrine in 2009 see in the matter the denning law journal 147 although meeting the jurisdictional definitions in icwa of being an indian child, was not ‘indian enough’ for an application of icwa.75 in so doing, judges then circumvented the higher standards of icwa from being utilised in child care proceedings. yet, aside from drawing some attention when the hague convention on intercountry adoption was first put into force in the united states in 2008, there appears to be little discomfort in the united states about the conflicting laws on how to consider issues of race.76 a child could thus be subject to any of ajs. march 27, 2009, supreme court of the state of kansas, at http://www.kscourts.org/cases-and-opinions/opinions/supct/2009/20090327/99130. htm. the author worked with other legal professionals in the state of kansas to form a strategy to have this doctrine rescinded in kansas. see comments of professor a organick, who created a tribal legal clinic at washburn university school of law, topeka, kansas, usa, “since i started the tribal court practice clinic (tcpc) at washburn, i have been in a yearly cycle of reevaluating and reassessing institutional and pedagogical goals when lawyering for indigenous people in a clinical setting. part of the reevaluation process has to do with how kansas deals with the indian child welfare act (icwa) and my attempt, along with others, to reframe that debate... last night, i spoke with a good friend and colleague from kansas, sarah sargent. ms. sargent is an attorney and child advocate and one of the first people i met when i moved from new mexico to kansas. as it happens, she is also an expert on icwa and the impact of the existing indian family exception to icwa on indian children and indian tribes. she and i have worked together on a number of issues that impact children and juveniles in the state of kansas and icwa is always on our minds. when we spoke last night, we were trying to come up with a strategy for abolishing the existing indian family exception to icwa in kansas.... working on icwa issues over the past three years has taken a lot of time.... this particular exception to icwa isn’t an issue here in new mexico. and so, when i realized how important an issue this was, i became involved in work across the state to try and educate lawyers, social workers and judges about icwa and about why the eife should be abolished in kansas.” a organick in “indian law clinics and externship symposium roundtable discussion: lawyering for indigenous people” (2007) 8 tribal law journal 52 at 57, 59. 75 see baby boy l n 74 above. see also d lewerenz and p mccoy “the end of the “existing indian family”jurisprudence: holyfield at 20, in the matter of ajs and the last gasps of a dying doctrine”(2010) 36 william mitchell law review 684; cl jaffke “the “existing indian family” exception to the indian child welfare act: the states” attempt to slaughter tribal interests in children”(2006) 66 louisiana law review 733; b atwood “the voice of the indian child: strengthening the indian child welfare act through children”s participation”(2008) 50 arizona law review 127; b atwood “flashpoints under the indian child welfare act: understanding state resistance (2002) 51 emory law journal 587. 76 a notable exception is the research done by the evan b donaldson foundation n 51 above. “another exception is an article written in 1999, well before the united states law on intercountry adoption came into force—see c metteer “a law unto itself: trapped in legal discourse: transracial adoption in the united states and england 148 one of the four laws with their differing and even conflicting approaches to considerations of race and culture, dependent upon the circumstances of their adoption. a child adopted from the united states child care system to another country is potentially subject to both mepa-iep and the iaa. implementing regulations of the iaa require that ‘prospective parents receive training related to transracial adoption, as well as counseling related to the child’s cultural, racial, religious, ethnic, and linguistic background.’77a comparison with the strictures of mepa-iep quickly identifies the conflicting content of the two laws. it is just this sort of activity that is forbidden by mepa-iep. yet this goes without much comment, let alone redress. perhaps because the conflict is not seen as limiting adoptive parent access to children of their choosing, there is little outcry about the irreconcilable differences in the content of these two laws. the justification for transracial adoption—that is of black children into white families—is that there are large numbers of children who would never be adopted otherwise. this much is true. the united states has a large population of children legally freed for adoption and awaiting adoptive homes. 78 and in sheer numbers, the children who need to be adopted are white.79 there are no shortages of white children available for adoption. it is not only that there are not enough adoptive families for black children—there are not enough adoptive families for white children. there are not enough adoptive families for the children who are in the system. yet a myth is persists that there are no white children available for adoption in the united states. this simply is not true. this myth is used to justify the choice of intercountry adoption—that there are no white children in the united states that are available for adoption. the truth is that there are the indian child welfare act as inapplicable and inappropriate to the transracial/race-matching adoption controversy” (1999) 38 brandeis law journal 48. for a view in opposition to that of the evan b donaldson foundation report, see c mabry “a mepa-iep review from adoption attorneys” perspectives: continuing to make permissible assessments based on race for the best interests of children of color” (2009) 38 capital university law review 319. 77 evan b donaldson report n 51 above, executive summary at 4. 78 data from the adoption and foster care analysis and reporting system (hereinafter “afcars”) administration for families and children, u.s. department of health and human services, shows 64,084 children had their parental rights terminated, with 107, 011 children who either had a goal of adoption or parental rights terminated. data is from “preliminary fy 2010 estimates as of june 2011”, at http://www.acf.hhs.gov/programs/cb/stats_research/afcars/tar/report_18. 79 ibid , showing that 39 per cent, or 42,059 children with a goal of adoption and/or whose parental rights have been terminated are white. the denning law journal 149 white children—but not children that prospective adopters find palatable.80 they are somehow damaged goods—and rejected by prospective adopters who turn to intercountry adoption. 81 english laws on transracial adoption: this article uses the extensive discussion regarding the american transracial adoption legal discourse as a mirror for considering the recent adoption policy changes announced in england in 2011. of course the american and the english historical and social experiences of the issue of race are very different. some might argue that this limits the ability to productively use one to study the other. but this article can do what the two respective legal systems cannot do themselves—draw conclusions on similarities in the legal discourse as well as differences, yet ponder on the failure of either a colour conscious or colour blind approach to deal with the issue of large numbers of ethnic minority children in care awaiting adoption from state care systems. this after all, must be the ultimate issue, the children awaiting adoption. but the question on these children is not so simple as the need to locate sufficient numbers of adoptive parents of any colour or race. the underlying question is why these children are in the child care system in such numbers in the first place. in contrast to the united states, england has a uniform approach to its adoption laws, and does not have separate standards for adoptions that are domestic or international, or through an independent rather than government funded agency. there are no separate laws for a particular ethnic classification or heritage. section 1(5) of the adoption and children act 2002 requires that an adoption agency give ‘due consideration to the child’s religious persuasion, 80 a ortiz and l briggs “the culture of poverty, crack babies, and welfare cheats” (2003) 21 (3) social text 39. they compare the profile of children that were available for adoption from the united states care system and those that were adopted internationally into the united states from romania, finding very little difference in the profile of the child, and questioning when then adopters made the choice to adopt from romania: “by virtually any measure—age at adoption, aggressiveness towards peers and family, trouble getting along with other children, school problems, delinquency—these two groups of children offered the same ( considerable) behavioural and emotional challenges to their adoptive families....finding these children so similar in so many dimensions raises a question: why did american rush to romania...to adopt deeply troubled kids at considerable expensive to themselves and with very little formal support for raising them, when they could have adopted substantially similar children in the united states, with institutionalized support and government subsidy?” at 39. 81 see generally ibid. trapped in legal discourse: transracial adoption in the united states and england 150 racial origin and cultural and linguistic background’82 further guidance on this is given in the 2003 ‘adoption: national minimum standards’ from the department of health: 2.2 children are matched with adopters who best meet their assessed needs. wherever possible this will be with a family which: a. reflects their ethnic origin, cultural background, religion and language; and b. allows them to live with brothers and sisters unless this will not meet their individually assessed needs. where the child cannot be matched with a family which reflects their ethnic origin, cultural background, religion and language, the adoption agency makes every effort to find an alternative suitable family within a realistic timescale to ensure the child is not left waiting indefinitely in the care system. where children cannot live with a family asset out in (a) and (b) above, a clear explanation will be given to them, having regard to their age and understanding, and be recorded.83 ethnic matching is permitted and in fact encouraged. it is seen as preferable to transracial placement. even so, it is not permissible to delay in adoption for a child whilst a search is made for a matching family. children are not to be left without any family at all, lingering in care whilst the hypothetical ideal match of a same race family is pursued. however, in the face of system criticism that transracial adoptions were not being permitted, further guidance was issued. the new guidance makes clear that it is not acceptable to delay placement with a prospective adopter on the basis that the placement would be transracial: “if the prospective adopter can meet most of the child’s needs, the social worker must not delay placing the child with the prospective adopter because they are single, older than other adopters or does not share the child’s racial or cultural background.”84 82 s 1(5) adoption and children act 2002. emphasis added. 83 “adoption: national minimum standards (2003) department of health, standard 2.2, p 11. emphasis added. 84 adoption statutory guidance: the adoption and children act 2002, department for education, p 83, paragraph 4 (updated april 19, 2011) at http://www.education.gov.uk/b0072314/guidance/ch4/match (references are made to the online version of the guidance). the denning law journal 151 delay presumably would occur if the search was made for a perceived racial or cultural match whilst another adoptive home that was not a racial or cultural match for the child was available. as well, denying a placement on the basis that it would be transracial is not permitted: “any practice that classifies couples/single people in a way that effectively rules out adoption because of their status, age, or because they and the child do not share the same racial or cultural background is not child centred and is not acceptable.” 85 the guidance goes on to address the way in which social workers identified the ethnic heritage of a child, arguing against a simplistic black or white categorisation: “the structure of white, black and minority ethnic groups is often complex and their heritage diverse, where the race, religion, language and culture of each community has varying degrees of importance in the daily lives of individuals. it is important that social workers avoid ‘labelling’ a child and ignoring some elements in their background, or placing the child’s ethnicity above all else when looking for an adoptive family for the child.”86 the effort to de-emphasise ethnicity and culture as part of the adoption matching process is reflected in the new content of the ‘adoption: national minimum standards’ issued in april 2011 by the department for education.87 the language of the standard 2.2 in the 2003 version is conspicuously absent from any of the adoption standards in the latest version of the adoption standards. a colour conscious approach such as that outlined in the statute and underscored by the new guidance arguably requires a deeper understanding of social connection and construction around issues of race than the more simplistic colour-blind approach. but research from the adoption research initiative found placement decisions were made which did not show an informed view about ethnicity.88 the way in which the confusion is portrayed 85 ibid; p 83, para 5. http://www.education.gov.uk/b0072314/guidance/ch4/match. 86 ibid , p 84 para 6. http://www.education.gov.uk/b0072314/guidance/ch4/match/ethnicity-and-culture 87 adoption: national minimum standards (2011) department for health. 88 “summary 6: pathways to permanence for black, asian and mixed ethnicity children (november 2010) adoption research initiatives, at trapped in legal discourse: transracial adoption in the united states and england 152 suggests that there is a polarisation of white and non-white identities—rather than identities that are inclusive: “their social workers were often uncertain about whether they should be placing the child to preserve his or her present identity or to enable the development of another ethnic identity to which the child had a genetic connection.”89 there is also evidence of reluctance to place children transracially, with courts acting to over-ride social worker reluctance to place a child in a transracial or multiracial placement: “requests by foster carers (usually white english) to adopt minority ethnic children were often a source of professional dispute. there were often conflicting views, expressed in courts, about whether or not it would be in the child’s best interests to be moved to an ethnically matched placement. in all of such cases in the sample, the judgement went in favour of the foster carer.”90 thus, whilst the united states’ mepa law was initially very close to the english law, the legal positions on how to make placement decisions in transracial adoption diverged following the iep amendment in 1996. consequently, the english legal position and the american legal position on domestic adoptions from the child care system are very different. one is now colour-blind, the other colour-conscious. but there are indications of the english system drifting towards an american colour-blind approach. the most recent english statutory guidance iteration is more remarkable for what it does not say than what it does say. whilst the english legal position on transracial adoption remains a long way from the strictly colour-blind position of the american federal mepa-iep law, this omission of language should not go without comment. the english child welfare system does not have the same type of statistical data as is compiled by the united states federal government. for the first time, however, in march 201191, a comprehensive ‘datapack’92 was www.adoptionresearchinitiative.org.uk/summaries/ari_summary_6.pdf. see also j selwyn, d quinton, p harris, d wijedasa, s nawaz, and m wood pathways to permanence for black, asian and mixed ethnicity children (baaf, 2010). 89 summary 6 n 49 above at 3. 90 ibid at 4. 91 adoption and special guardianship england data pack, department for education, march 2011. the denning law journal 153 released, with some revealing information about the operation on the adoption over several years. comments from the data pack reveal that there are black children (which the report clarifies are not ethnically mixed93) who wait longer for adoption than children of other ethnicities.94 it is difficult to draw statistical comparisons between the united states and england based on this disparate set of data, but one commonality is clear: there are large numbers of black children awaiting adoptive homes in both systems and that each system has concluded that transracial adoption is the way to provide a solution for the black children awaiting adoption. the causes and consequences of colourblindness one description of colour-blindness is that it ‘becomes an alluring personal strategy to subvert racism to not see racialized differences, normalizing all persons through seeing people as people’ 95 on the other hand, use of a colour-blind approach allows racism to exist without challenge.96 if race is not seen, racism is more difficult to challenge, as its very existence is denied in a colour-blind approach.97 if race is not seen, racism is not challenged, and the social inequities that are part of a racialised society go without challenge. a colour-blind approach to adoption placement allows a system to avoid a discussion on the deep seated racism that is part of the larger society as well as in the adoption system.98 transracial adoption contains an element of not only rendering invisible the black mother, but the ‘devaluing of black mothers’99—a widespread http://www.education.gov.uk/childrenandyoungpeople/families/adoption/a0076713/da tapack 92 ibid. 93 ibid, stating that “the data indicate that longer placement times are especially apparent for: black children (not mixed ethnicity)”, at slide 14. 94 ibid, at slide 14. there are some self-acknowledged deficiencies in the data, with the comment offered that “it is not known how many children with an adoption recommendation are never placed for adoption.” ibid, at slide 14. 95 g samuels “being raised among white people: navigating racial difference among adopted multiracial adults” (2009) 71 journal of marriage and family 80, 92. emphasis in the original. 96 m harris and w hackett “decisions points in child welfare: an action research model to address disproportionality” (2008) 30 children and youth services review 199, 204. 97 ibid at 204. 98 ibid. 99 d roberts “unshackling black motherhood” (1997) 95 michigan law review 938 at 938. trapped in legal discourse: transracial adoption in the united states and england 154 ‘legacy’100 in the way that the united states society has constructed black motherhood.101 citing the work of dorothy roberts, briggs comments that: “...invidious, if often unconscious, bias permeates the child protective system. similarly situated children and birth parents are treated very differently...at every level of the system. black parents are presented with impossible reunification plans, accused of things they did not do, and denied access to their children.”102 a comment from scholar r-a howe effectively unmasks the truth, unpalatable though it might be, about the role and effects of colour-blind transracial adoption: “from my perspective, the transracial adoption debate is about establishing a new right or entitlement for certain white adults who wish to become parents by any means they select. proponents of transracial adoption who claim that same-race placement preferences are victimizing the increasing numbers of black children in foster care are employing a diversionary “smokescreen” strategy. this smokescreen obfuscates important systemic problems and creates additional barriers to meeting the needs of black children, black families and the black community. the focus of attention should be shifted away from the illusory debate about the merits of transracial adoption to the real issue: whether it is appropriate to establish new rights for adults seeking to adopt children.”103 colour-blindness not only makes racism invisible, but has the effect of erasing non-white parts of society from any recognised existence in adoption policies, according to comments in research by perry. in her seminal article, perry observes the damage that is done through the use of colour-blind adoption policies. in so doing she describes the social function served by colour-blind policies. she argues that a colour-blind approach simply acts to reinforce social hierarchies of race: 100 ibid at 938. 101 ibid. 102 briggs n 1 above at 435. 103 howe n 2 above at 138-139. the denning law journal 155 “...while rendering the black community invisible, the discourse of colorblind individualism also reinforces the subordination of black communities. ...”104 some commentators see the reality of why ethnic minority children are present in such high percentages in the child welfare system as due simply ever-present racism--spoken or unspoken, acknowledged or justified—in larger society. women and families who do not fit the image of an idealised family structure are at risk of having their children put into care for that reason alone. wing and weselmann comment that: “...mothers are presumed to be white and are discriminated against if they demonstrate that they are raced.”105 thus, the racial element of reasons that children of colour end up in the state child care system may in fact be the driving factor for child placement— as distasteful and even controversial as this may be. 106 transracial adoption is thus a tangled web of interest and power. it is not a child centred practice that is focused about providing what is best for children. it is adult centred, with the desires and motivations of those adults that make up a privileged part of society insisting on their right to have unimpeded access to the children of their choice: “...the transracial adoption controversy is not about addressing the needs of the many older black children who enter the foster care system; rather it is about giving preferences to certain white adults who seek to adopt infants.”107 104 perry n 3 above at 80-81.emphasis added. 105 a wing and l weselmann “transcending traditional notions of mothering: the need for critical race praxis”(1999) 3 journal of gender, race and justice 257 at 268, 269, 271 106 briggs sounds a similar note in her research, arguing that the wrong questions are being asked about child welfare and transracial adoption. she states that “...i would argue the questions we need to be asking are, why are children of color being taken from their families in such numbers and why are they so much less likely than white children to be reunited?....similarly situated children and birth parents are treated very differently....at every level of the system. black parents are presented with impossible reunification plans, accused of things they did not do, and denied access to their children.” briggs, n 1 above at 435. 107 howe n 2 above at 149. emphasis in the original. trapped in legal discourse: transracial adoption in the united states and england 156 scholars have recently begun to explore the current relationship between race and the law. the election of barack obama to the us presidency was hailed by some as evidence of a ‘post-racial’108 era in the united states.109 but this is in fact not the situation at all. rather, the legal system is just as active in maintaining the social expectations about the balance of power in american society as it was before the civil rights movement. haney lopez comments that current laws represent ‘a backlash to civil rights’.110 shani king’s research supports this, and points out that the passage of mepa-iep—the socalled colour-blind approach to transracial adoption-was part of this backlash against the civil rights movement.111 s king points to the importance of ‘challenging...the colorblind perspective’112 of american family law.113 “challenging the [american family law] canon will highlight its colorblind perspective and reveal the extent to which precedent allows color consciousness in family law, whether it is a situation in which not acknowledging the role of race in family law perpetuates racial inequality, or it is a situation in which not acknowledging the role of 108 i haney lopez, “post-racial racism: racial stratification and mass incarceration in the age of obama” (2010) 101 california law review 102; s king, the family law canon in a (post?) racial era (2011) 72(3) ohio state law journal 575, 577. 109 haney lopez n 108 above at 102-103; s king n 108 above at 577-578. 110 haney lopez n 108 above at 109. haney lopez’s article is focused on the large numbers of african-americans who have been incarcerated after the civil rights movement. the group human rights watch has also examined this situation, pointing out the “racial disparities in prison admissions for drug offences.” human rights watch , “targeting blacks: drug law enforcement and race in the united states” (2008) at 41. the report comments that “in absolute numbers, there are far more whites committing drug offences than blacks. the disproportionate rates at which blacks are sent to prison for drug offences compared to whites largely originate in racially disproportionate rates of arrest for drug offenses.” at 41. this systemic disproportionality is reflective of the american child welfare racial disparities. 111 s king n 108 above at 623. this is a view that is outlined by d roberts n 99 above , who comments about the revelations made by her own research: “when stories about the prosecutions of women for using drugs during pregnancy first appeared in newspapers in 1989, i immediately suspected that most of the defendants were black women. charging someone with a crime for giving birth to a baby seemed to fit into the legacy of devaluing black mothers. i was so sure about this intuition that i embarked on my first major law review article based on the premise that the prosecutions perpetuated black women’s subordination. my hunch turned out to be right...” at 938. 112 s king n 108 above at 640. 113 ibid at 640 the denning law journal 157 race means not fully considering the best interests of the child. challenging the canon will call attention to the ways in which race is still a significant factor in society, in how people arrange their private lives and families, and in the law that governs these families.”114 from his viewpoint, colour-blindness in the law should not go uncontested. its presence should be acknowledged, and the way in which colour-blindness enables the continuance of racial inequities in society—and serves to mask them—must be brought to the fore. failing to confront this— the continuing silence of the role that colour-blind laws play in racial inequity is tantamount itself to ‘promot[ing] racial inequality.’115 research by ortiz and briggs also supports the assertions that the united states federal mepa-iep law was part of the larger backlash that occurred in the wake of the american civil rights movement: “the 1997 legislation [iep] prohibiting race matching in adoption was part of this structure masking the racial bad faith of neoconservatives and neoliberal colorblindness, a multiculturalism accompanied by the gutting of affirmative action in employment and education and the dismantling of the federal safety net for poor women and children embodied in afdc. perhaps more than at any time in the three decades of arguments about childhood that preceded it, the adoption promotion act did not attempt to hide the contempt that was embedded in its pity of the poor.” 116 ortiz and briggs also argue that the fixation on poverty and the poor was simply another mask for racial bias in laws—where the term ‘welfare mothers’117 came to mean ‘black, latino, native american, and less, often, asian women and their children’. 118 the 2010 adoption research institute study on ethnic minority children adoption comments on the lack of information about the experiences of minority ethnic children in england: 114 ibid. 115 ibid. 116 ortiz and briggs n 80 above at 51. for a view that the development of adoption in control was a form of exercising control over poor women and children, see j reeves “the deviant mother and child: the development of adoption as an instrument of social control” (1993) 20 (4) journal of law and society 412. 117 ibid at 50. 118 ibid. trapped in legal discourse: transracial adoption in the united states and england 158 “there is a shortage of data on looked after minority ethnic children, when and why they come into care, how decisions are made about their futures and what happens to them in their care careers. there have been debates about best practice in placement of minority ethnic children and this remains an area of mixed opinions.”119 a similar observation was made in 1999 about the united states child care system: “...more information is needed about the policies and practices that bring children of color into the system, as well as about the effect on all children of child welfare policies and practice. a better understanding of these issues is crucial to the discussion surrounding racial matching.”120 it would seem that very little progress has been made. ‘trapped in legal discourse’ the messages about what is beneficial to children, about the meanings of race, culture and transracial placements all are re-interpreted by law, and become trapped in legal discourse.121 contrary to what many would argue, transracial adoption is not at the cutting edge of social egalitarianism—far from it. instead it is an exercise of societally bestowed privilege and power— or the lack of it: “changes in the letter of law which appear to favour certain social groups may also reinforce a particular image of members of that group. ...in modern pluralist societies where social realities tend to be fiercely contested, it is hardly surprising that the formal legal system, with its vested interested in maintaining its own credibility and reproductive capabilities, should be so resistant to the rapid acceptance of new versions of reality.”122 119 ibid at 1. 120 d brooks, r barth, a bussiere, and g patterson “adoption and race: implementing the multiethnic placement act and the interethnic adoption provisions (1999) 44(2) social work 167 at 176-177. 121 see generally smith n 20 above; m king (1991) n 20 above, m king (1994) n 19 above. 122 m king (1993) n 19 at 232. the denning law journal 159 colour-blind or colour-conscious, transracial adoption law and practices only act to reinforce existing stereotypes and prejudices and racially based social hierarchy. the utilisation of transracial laws, informed by social and policy agendas, has resulted in simply maintenance of the social status quo. from the view of the autopoietic theory lens, this would come as no surprise. king argues that ‘law frees us from the demand we should learn from experience.’123 in this consideration of law, law as a system of communication cannot learn from its past experiences or from the experiences of other system. all law can do is fulfil its function which is to ‘stabilize[] congruent expectations and in so doing, provide[] certainty’.124 in respect to transracial adoption then, law as a system cannot ‘learn’ from the experiences of other systems nor take on board historical value from past attempts to address transracial adoption. it simply manages expectations around transracial adoptive placement—and that is by –in both the united states and the united kingdom—assuring that there is no legal barrier for white parents having ethnic minority children place with them for adoption— whether or not this is actually occurring and whether or not white adoptive parents are seeking out these sorts of children to adopt. king’s critique of child welfare in law through an autopoietic lens provides insights into how child welfare information becomes ‘trap[ped] within legal discourse’.125 commenting upon the changes in family courts in england, he argues against any idea that child welfare and law can combine to provide solutions: “…that those who wish to promote those developments as precursors of the family court ideal—with welfare and justice going hand-inhand as equal partners ready to solve any problems and resolve any conflict involving children’s interests are deceiving themselves and those who believe in them..a genuine partnership cannot exist, for any attempt to merge child-welfare science with law as part of the legal system will inevitably result in the domination of law and the ‘enslavement’ of child-welfare knowledge to serve institutional objectives.”126 he further argues that attempts to merge knowledge from two different systems simply will not happen due to the autopoietic nature of systems.127 knowledge shared across and between systems is not given the same meaning 123 m king (1991) n 20 above at 305. 124 ibid at 305. 125 ibid at 319. 126 ibid at 319. 127 ibid at 318. trapped in legal discourse: transracial adoption in the united states and england 160 as within those systems. king draws a pessimistic prediction about the ability of courts to adequately include ‘parents and social services’128 as part of a partnership with the court to formulate outcomes that operate in the interests of children.129 smith likewise draws the conclusion that law is not able to absorb social scientific thinking. rather, she argues, in the same vein as king, that law simply reinvents the social scientific meanings fed into it in such a way that those meanings are diluted and distorted to achieve an outcome that is compatible with legal system outcomes.130 she explains in relation to postadoption contact that: “[r]ather than integrating social scientific knowledge into its operations, law has avoided this epistemic entrapment by identifying contact arrangements and children’s well-being as the (legal) responsibility of adoptive parents. it is problematic for law to import social scientific communications when its thinking is characterized by an exclusive focus on the legal consequences of adoption.”131 neither king nor smith see legal systems as being able to incorporate meaning imported from social welfare or child welfare systems in the ways that are intended to benefit children and families. that attempts to reform legal institutions seem to never meet up to expectations would not be a surprise to an autopoietic researcher. what then are the observations that can be made through an autopoietic lens about transracial adoption? if the function of a colour-blind discourse is the continued subordination of ethnic minority communities, then the legal system will not act to alter that expectation and outcome. however positioned within child welfare, transracial adoption discourse changes its meaning when it is imported into the legal system. king points out that ‘law as a discourse is not interested in consequences, but in maintaining expectations that certain consequences will occur...’132 law then is not concerned with whether transracial adoption actually increases as a result of law or policy changes, nor yet whether those placements operate for or against the interest of children. rather, law seeks to not fall short of meeting expectations, and where the expectation of transracial adoption in legal discourse is to maintain racially hierarchical social strata, law is not troubled in the least. the tools for seeking change in the child welfare system lose their potency when transferred to legal 128 ibid at 319 129 ibid at 319-320. 130 ibid at 309. 131 smith n 21 above at 337. 132 m king (1991) n 21 above at 309. the denning law journal 161 systems—and account for the lack of progress in resolving racial disparity of ethnic minority children in child welfare systems. the tools for change simply have become trapped within legal discourse. until or unless that can be recognised and unravelled, it will make no difference to the outcomes whether the law takes a colour-blind or colour-conscious approach. conclusion this article has compared the differing approaches to transracial adoption in the united states and england. it has focused on the laws that govern adoption from state child care systems. the us has multiple laws that govern adoption and the content of these conflicts as to whether and how to consider issues of race, culture and ethnicity when making adoption decisions for children. the law that governs adoption from the state child care system moved from a colour-conscious to a colour-blind system, where it is forbidden to give consideration to race, colour or national origin except in very limited and exception circumstances. the impetus for this change was the belief that transracial placements of ethnic minority children to white adoptive parents were not being made. in the same vein, england has announced a change to its adoption policies, underscoring that its laws do not ban transracial placements. whilst it is required to give consideration to issues of culture and ethnicity in english law, transracial adoptions have not in fact been banned in the law. instead, social workers interpreted the law in ways that made it seem as if transracial placements were not being made—based in part upon social worker’s own individual interpretations of laws, of ethnic heritage and what they felt was best for a child. the furore over transracial adoption in both countries has been characterised as an issue over whether white adoptive parents were being denied the child of their choosing—with some commentators suggesting that the children of interest are infants, not older ethnic minority children. this being the case, transracial adoption is simply an exercise of and reflection of existent racially based social hierarchies. far from transforming inequities in society, when reinterpreted by legal systems, transracial adoption policies simply maintain a status quo. autopoietic theory argues that nothing more can or should be expected from child welfare meanings being introduced into legal systems. rather, law simply absorbs these and re-interprets them in ways congruent with the legal system and its function of maintaining expectations—causing the meanings to become ‘trap[ped].. within the legal discourse.’133 thus, to beg the question then of ‘how’ to affect change and free children from the trap of legal discourse, a few final thoughts and comments are 133 ibid at 319. trapped in legal discourse: transracial adoption in the united states and england 162 offered. shani king comments on the entrenched social views that americans have on the structure of their society and the role that colour-blind views have played in forming and maintaining that view: “partly through colorblindness and partly through the accumulate weight of cultural beliefs and historical practices, most americans accept that major american institutions are race-neutral and that these institutions produce vast racial disparities. if this is so, then simply informing whites about dramatic race-correlated differences will not challenge, let alon[e] change their beliefs, because they already recognize and accept such inequalities as a legitimate feature of social reality. indeed, with racial injustice seemingly a natural condition, an emphasis on numbers alone will tend to solidify rather than destabilize dominant understandings of society’s basic fairness.”134 it is clear that a colour-blind approach is a part of the problem, and certainly no part of the solution in addressing the social situations that have resulted in the large numbers of ethnic minority children awaiting –futilely in most cases—adoption. haney lopez calls for an outright rejection of colourblindness and of undertaking a process instead which can begin to invite the sort of social changes that is needed to combat the situation that has resulted in the over-representation of ethnic minority children in the state child care system.135 he calls for the development of a ‘countervailing narrative about race as a form of social stratification.’136 but, accepting the autopoietic view that legal systems mirror social expectations and that they themselves are not sites of change, a counternarrative is not going to be enough to affect the sort of change that haney lopez calls for. it is a place to start—but that narrative is not going to displace the well-entrenched social stratification that permeates american society. the narrative must eventually change social mores and messages and expectations. then and only then will the legal system respond in such a way that it does not result in racial hierarchy. what direction the english legal system goes through its role in maintaining and reflecting social expectation—whether it continues a drift towards colour-blindness or retains its colour-conscious qualities with all that each positions entails-remains to be seen. 134 haney lopez n 108 above at 142. 135 ibid at 143. 136 ibid. for the purposes of right to self-determination, how does one define people in context of kashmir 265 the denning law journal 2013 vol 25 pp 265-272 book review feminist perspectives on tort law janice richardson and erika rackley (eds), routledge 2012, isbn 978-0415619202 price £80.00 hb carol brennan because it is the area of civil law with a distinctly human face, students often initially find tort law accessible; sometimes deceptively so. early on, they are introduced to the importance of policy in the development of case law. often this policy is not articulated, so a skill must be developed of reading between the lines, in order to discern the influence upon judicial decision-making of concerns such as those about the ‘floodgates’, or perhaps defensive practice. but additionally, both students, their teachers and users of the tort system, must be appraised that explicit assertions about ‘policy’ are premised upon much more fundamental and elusive assumptions about the way society does or should operate. when these assumptions are gender-based, it is contended, women using the tort system are frequently disadvantaged on both an individual and collective basis; and this is all the more serious because of the insidious means of operation. this collection of writings by prominent feminist tort scholars from around the common law world sets out to expose, explore and criticise these hidden gendered underpinnings across a spectrum of torts from negligence, through personal torts such as rape, on to novel ways of looking at privacy and nuisance law. the ‘feminist perspectives’ of the title must be clearly identified if the collection is to be assessed on its own terms. for joanne conaghan, the feminist legal endeavour is: ‘first and foremost to bring a gendered perception of legal and social arrangements to bear upon a largely gender-neutral understanding of them’ (p 14). when aspects of the legal system apparently ignore or under-value 50% of the population, a message is being sent to the wider society. in addition to the dissection of gendered perceptions, the other key critical stance pursued by the contributors is the feminist view of the world, and thus law, in relational terms; that is human connectedness and interaction. arguably, the tort system itself is premised on an individualistic or atomistic llb, ma, phd, barrister. book review 266 model of harm and of remedy; but damage can be visited upon a community, as in nuisance cases, and a collective response may often be more empowering for the vulnerable in society, among whom there will be a strong female representation. conaghan asserts that where, ‘tort law, as traditionally presented, presupposes the essential separateness of individuals from each other, feminist perspectives recognise, from the very outset, our necessary connectedness’ (p 66). some contributions focus on particular torts: negligence, nuisance, privacy, or trespass to the person. but they all contain, to some degree, analyses of gendered conceptions of harm and their consequent impact on both development of tort doctrine and the calculation of damages. negligence, and its fundamental component duty of care is an obvious starting point, with jennifer steele examining the strengths and weaknesses of current judicial approaches. she elucidates the way in which individualist rhetoric has influenced the inevitable line-drawing, which abstract conceptions of duty of care require. carol gilligan’s seminal ideas on moral psychology and her feminine ‘ethic of care’ support steele in her advocacy of a more relational and contextual approach to duty. in ‘endgame: on negligence and reparation for harm’ nicky priaulx explores historical assumptions that determine how harm is conceptualised for the purposes of damages calculation. she posits a form of ‘psycho-social’ or hybrid damage not generally compensable due to the ‘bright line’ which has favoured physical injury in order to restrict the spread of negligence, (with narrow exceptions for serious psychiatric injury). too often, damage suffered by women, whether emotional or related to reproduction, is consigned the category of mere ‘vicissitudes of life’, which are not compensable. the evolution of duty of care is characterised by incrementalism; which, while bringing a degree of equality within the tort system, can also be criticised as somewhat arbitrary. her argument goes much farther, however, and she casts doubt upon the whole ‘damage principle’. stepping outside of the tort system, which ‘reaches a rather small (and privileged) community of injured beneficiaries’ (p 45), priaulx questions the contribution of negligence law to humanity. she reappraises the ‘taken-for-granted’ notion that physical injury is ‘especially harmful’ (author’s italics). when research on hedonic psychology indicates that people often adapt to misfortune, including the physical, should we consistently regard disability in only negative terms? ultimately, she suggests that lack of consensus over where to draw boundaries to the reach of negligence could lead to ‘a no-win situation in attempting to establish a fair and inclusive means of providing redress for harm’ (p 51). dayna nadine scott investigates a case, novel for many british readers, where public nuisance led to collective harm in a canadian first nation community. in an industrial area of the great lakes, known as ‘chemical the denning law journal 267 valley’, environmental contamination by endocrine-disrupting chemicals (‘gender benders’) were said to have led to a dramatic drop in the birth of males. additionally to the causal hurdles to be surmounted, environmental activists supporting the legal actions were aware that skewed sex ratio was novel and problematic category of damage. as with that discussed by priaulx, the harm is intangible, or ‘incorporeal’. this was reproductive harm suffered at a collective level; though additionally there were individual health problems within the aboriginal community. while tort law is founded on the assumption of the separateness of individuals, ‘all living things are embedded and interwoven into larger webs of being’ (p 55), never more so than in the process of reproduction. the case is a paradigm of feminist relationality. also evident here, as in many environmental cases, are issues of racial and class equality. scott quotes a mantra: ‘some of us live more downstream than others’(p 58). again, fundamental givens are challenged, as she points out that once damage is conceived not at the ‘cellular’ but ‘community level’, we must also radically re-think what providing a remedy for this injury would actually entail. would ‘loss of a chance’ be applicable? sadly, it is possible to mention only a handful of the disturbing dilemmas presented by scott. in her contribution on police negligence, kirsty horsey interrogates the long-standing immunity of the police from claims for negligence in the function of crime prevention and investigation. assumptions underpinning the policy arguments in cases ranging from hill v chief constable of west yorkshire, 1 to smith v chief constable of sussex police, 2 are challenged. her references are extensive and informative, including the details of many independent police complaints commission investigations as well as comparisons with canada, where a duty to warn rape victims was recognised in doe v met toronto (municipality) commissioners of police. 3 not for the first time in this collection, an author acknowledges the potential clash of differing feminist perspectives. what is being lost or compromised if all females are regarded as inherently vulnerable and thereby in need of extra protection from the police? the title of horsey’s piece, ‘police negligence, invisible immunity and disadvantaged claimants’ accurately reflects that the issues involved in this developing area range far beyond those of gender. in ‘drug products liability actions and women’s health’ patricia peppin describes biases which impact on women as consumers of pharmaceuticals in their reproductive life. she presents as vivid ‘lessons from mass tort litigation’ three products which impacted directly upon women: thalidomide, the dalkon shield and diethystilbestrol (des). they illustrate the profound harm done to women and their children by inadequate testing and cavalier marketing, harm 1 [1989] ac 53. 2 [2008] ukhl 50. 3 (1998) 160 dlr (4th) 289 (supreme court (can)). book review 268 compounded by the inability of the tort system to provide adequate recompense. it was revealing to consider the possible effects of bias in drug advertising, where women are overrepresented as patients requiring psychiatric drugs and under-represented as cardio-vascular patients (except in the carer role). the instilled ‘diagnostic image’ may then unconsciously bias practitioners, so that they are prone to over-diagnose psychiatric illness in women, but fail to recognise cardio-vascular symptoms which, to complicate matters, do not conform to those of males. when pharmaceuticals are tested and marketed, the default patient is taken to be the adult male. the resultant knowledge deficit puts women at risk from being treated with inadequately tested drugs. one key demographic which is excluded from clinical trials are of course pregnant women, but no viable alternative is suggested. peppin concludes that ‘…feminist activists may drive the movement for social change’(p 122). however, it must be not be forgotten that elderly men (and women), as well as children, continue to be regarded as ‘therapeutic orphans’ in relation to the drugs industry. the standard of care of in negligence is the topic of miola’s contribution, in which he reviews the post-bolitho 4 application of the common law’s bolam test. 5 he sees the main issue as one of paternalism from the medical profession; often more related to power than gender. but because those at the top of the medical profession are more likely to be male, and patients are frequently female, miola endorses conaghan’s concept of ‘gendered harms’ which are ‘not exclusive to females in any biological sense [but which] are risks women are more likely to incur’ due to male violence and reproductive intervention. natural empathy between male judges and male doctors reinforce this paternalism. will gradual ‘feminisation’ of the medical profession (with women making up 60% of new applicants) lead to differences in the application of the ‘reasonableness’ test for standard of care? it is concluded that very gradually, cases such as chester v afshar, 6 indicate the patient perspective is gaining ground. the lack an evidential base for some of his key assertions is disquieting in an otherwise illuminating discourse on the current state of the case law. in her chapter, ‘if i cannot have her everybody can’, janice richardson traces the development of privacy law leading to the growing number of sexual disclosure cases. these include revelation to the press of sexual activity (max mosley v news group newspapers 7 ), and the technologicallyenabled spreading of (usually hetero-) sexual imagery. she begins by exploring four different theories of privacy: non-intrusion (warren and 4 bolitho v city and hackney health authority [1998] ac 232. 5 bolam v friern hospital management committee [1957] 1 wlr 582. 6 [2005] ac 134. 7 [2008] ewhc 1777. the denning law journal 269 brandeis’s ‘right to be let alone’), seclusion (physical), limitation (secrecy) and control (autonomy over use of private information). they provide the bases for trying to understand both motivations and harm in this area and are said to be constantly adapting in order to accommodate changes in modes of communication and society. richardson considers the way that decisions involving celebrities (eg theakston v mgn 8 and a v b plc 9 ) would initially appear to favour the feminist cause by refusing injunctions against sexual disclosure, thus protecting the right of women in transitory relationships to profit from the sharing of ‘their’ information about the liaison. this leads her to analyse the impact upon notions of secrecy in intimate relationships the thinking of charles fried who describes an atomistic ‘property in the person’, and the similar, but more complex, position of kant that the person should never be treated only as an end, but never as the means by which to perform an immoral act (eg that of disclosure). richardson concludes that neither theory is adequate to deal with the fact that not only motivations, but also the nature of the harm must be considered by the courts in determining cases, and that the latter will be, to some extent, determined by the victim’s perception of the former. thus, differing male motivations remains key for richardson, some of which are revenge through humiliation (‘revenge porn’) and apparent macho bonding, as in the recounted criminal case in which a cadet at the australian defence force academy relayed in real time a sexual encounter with a female cadet to six male cadets in a nearby room. 10 richardson does not do justice to her argument when she fails to substantiate her assertion that, ‘while there may be cases of men attempting to make money from disclosure and women motivated by revenge or more complex desires, it is the men in the case law who demonstrate these potentially darker desires’. she simply writes that these dark desires are indicated by the sexual double standards men use to humiliate women with ‘revenge porn’. there is a relatively brief mention of ‘sexting’, which is said to be often created by girls and then used as a means of betrayal by the recipient boys. but aside from recommending that it must be sensitively regulated, not much more is done with this complex and contradictory phenomenon to promote the feminist thesis on privacy. richardson believes that feminism must reconcile two apparently conflicting positions: the first rejects conceptions of privacy which protect violence which is hidden away in the home while the second, in which guards aspects of intimacy which are not for public consumption. other aspects of the 8 [2002] emlr 78. 9 [2003] qb 195. 10 j richardson, ‘if i cannot have her everybody can: sexual disclosure and privacy law’ citing s smith, ‘interview with fran kelly – abc breakfast’, transcript, 12 april, 2011 in richardson and rackley 152. book review 270 problem she considers are definitions of public interest, psychiatric injury and the general revolution in the ‘infosphere’. richardson acknowledges that the feminist discourse favours analyses of privacy which give priority to the relational rather than individualistic or atomistic concerns. she approves the recognition by the ecthr that one aspect of art 8 privacy protection is ‘the right to develop relationships with other human beings and the outside world…’ 11 it would be interesting to construct a feminist response to the recent case of aaa v associated newspapers 12 where an injunction application on behalf of a child to prevent revelations about her paternity was denied on the basis of her own mother’s earlier ambivalent attitude to the disclosure of this information. the relational doesn’t always advantage the female or the vulnerable. the next two chapters deal with the dubious utility of civil law actions for sexual wrongs. nikki godden, in ‘tort claims for rape: more trials, fewer tribulations?’ begins with the observation that tort claims for rape are relatively rare and then features as case studies, three that have been successfully brought (against relatively wealthy defendants), considering whether there are strategic reasons for encouraging greater use of civil law remedies by victims of sexual wrongs for egalitarian ends. the issue of consent, though challenged historically by feminists, has been interpreted to the claimant’s benefit in the few civil cases that have been examined. but case law does not reveal the reality of power, trust, and hierarchy and the use of sexual history evidence illustrates the way in which in civil law, as well as the criminal, stereotypes and misogynistic assumptions undermine complainants’ worth and autonomy. she believes, however, in an increase in judicial awareness of social consequences of rape as well as psychological and lost economic opportunity. there shouldn’t be an assumption that the purpose of bringing tort claims is measured purely by the quantum of the damages award; also relevant are vindication, punishment, and ‘legal validation’. godden concludes that things are generally improving in civil claims for rape, while recognising that it is a wrong which generally is generally committed with impunity. a chapter which is one of the most comprehensive and ultimately satisfying is ‘sexual wrongdoing: do remedies reflect the wrong?’ by elizabeth adjin-tettey. she melds an imaginative critical analysis of the way harm is viewed generally in the tort system with the fact that the sexual wrong-doer often targets the most vulnerable in society, not only on the basis of gender but also age and lack socio-economic or political power. in a similar vein to priaulx, adjin-tettey recognises that intangible losses, as opposed to the bodily or financial, are less likely to be recognised and compensated by 11 peck v uk [2003] emlr 289. 12 [2013] ewca civ 554. the denning law journal 271 the tort system. she asserts that harm is socially constructed and that western thought’s endorsement of a dualism: mind/body or reason/emotion, has disadvantaged women, who are traditionally associated with the latter. bodily integrity is protected as a tangible property right whereas the less visible aspects of autonomy, breached in sexual wrong-doing, tend not to be accorded legal legitimacy. having explored what she calls ‘commodification anxiety’ and the ‘corruptibility’ of intangible interests, she concludes that when compensation is inadequate, victims will be deterred from seeking justice through the tort system. victims, already on the margins of society, are further marginalised. adjin-tettey makes the case for an enhanced state funding of compensation to such victims, thereby removing redress for sexual wrongs from the ‘private sector’ (the legal system) and placing it in the sphere of social responsibility. lastly, comes the amusingly titled ‘damages stereotypes: the return of ‘hoovering as a hobby’ by regina graycar. personal injury damages assessment might appear to be gender-neutral but closer inspection reveals the effect of entrenched assumptions about women’s roles in the workplace and the home. depressingly, it is often the case that calculations for loss of future earnings are based upon actuarial data for the average female wage, rather than the (higher) combined male/female wage; a policy which assumes the indefinite continuation of existing inequalities. courts are adhering to antiquated stereotypes, when they hold that a woman’s loss of capacity to do domestic work is actionable only either by her husband in an action for loss of consortium, or personally under the non-pecuniary heading. by treating it as loss of amenity, much of the work that women do is thus is devalued by being equated with recreational activities. more significantly, the law condones and perpetuates a failure to recognise the considerable economic value much of the work done by women. ‘brainstorming’ is a term used to describe their task by more than one of the authors in this collection and the reader engaging with this book is provoked by a multitude of ideas and questions to be further pursued. as with all worthwhile critical interrogations of the law, ‘normative underpinnings’ are exposed and boundaries of categories and concepts challenged. some contributions are more essentially feminist than others, and indeed the editors in their introduction observe that many of the legal reforms advocated in the collection are not part of a ‘zero sum game in which men lose if women gain’. the more convincing arguments note that in many cases of injustice gender may not be the only operative determinant, but more broadly the vulnerability or lack of power in those who are poorly served by the law. priaulx asks what extensions to the operation of negligence might do for humanity (her italics). adjin-tettey admonishes that victims must be listened to in their own words and in their own terms rather than through sutherland’s ‘lens of power and privilege’. book review 272 the editors reflect on the dilemma that when recommending tort reform, some can be said to be ‘buying into’ the existing discourse of the legal system, rather than taking a more objective and thus radical stance, as does for example adjin-tettey. a more pervasive dilemma in feminism is that many arguments are dependent upon treating the default state of the female as lacking power, status and victimhood, although this can be a reality, even in the relatively privileged sectors of society covered by common law legal systems. at the same time, as some authors point out, the situation is improving and the pitfall of graycar’s judges who assume the future will not see further change, must be avoided. the diversity of tort itself necessarily requires the juxtaposition of very disparate types of wrong and of damage: eg the disruption of a population’s sex ratio due to toxic pollution in the wilds of canada as compared to the very different indignities of ‘sexting’. its wide scope gives this collection both its spice but some of its drawbacks. it is important for cohesion that the contributions should be linked by a strong thread: here, of feminism. in some instances, this thread is stretched rather thin. miola’s effort to fit his otherwise strong piece on the standard of care in negligence into the feminist mold seems contrived. more disquieting is richardson’s unsupported assertion that it is only the male perpetrators of ‘revenge porn’ who somehow demonstrate ‘darker desires’. this does a disservice to her otherwise impressive analysis. no student of medical law will forget the quietly revolutionary speech by lady justice hale in parkinson v st james and seacroft university hospital nhs trust, 13 in which she explicitly addressed the issue of damages for unwanted pregnancy from the female perspective. this was surely the first time a senior judge had recounted the reality of childbirth and motherhood from personal experience. richardson and rackley’s collection of feminist scholarship makes a significant contribution, not only to ‘disclosing and dislodging’ the gendered norms at work in tort law, but to providing ‘an agenda for change’ for a future in which lady justice hale is no longer a lone voice. 13 [2001] ewca civ 530 [63]-[71]. denning lecture the denning law journal 79 the judges and the executive – have the goalposts been moved? denning lecture 2005∗ lord lloyd of berwick** in lectures named after famous men, it is the custom for the lecturer to start with a tribute to the great man in question. this is as it should be. in the case of lord denning, the greatest judge of our time, one could start easily enough. the difficulty would be knowing where to stop. fortunately the task of doing justice to lord denning, both as a person and as a judge, was undertaken by lord bingham before a huge congregation in westminster abbey in june 1999. it will never be done better. so instead i will refer to just three incidents in his life. the first was at a lecture which he gave in cambridge in 1950, shortly after his judgment in central london properties v high trees house.1 the title of the lecture was “the need for a new equity.”2 at the end of the lecture an undergraduate at the back of the hall asked, “where is this new equity going to come from?” “modesty” said lord denning in that marvellous hampshire burr, “forbids me to say.” the second incident was towards the end of his career when he was much given to writing books. he gave me a copy of one in which he wrote: “to tony lloyd, the most accomplished of judges, confident that he will soon reach the court of appeal…. and to jane who charms us all…” you can imagine my pride and delight. so i took it next door to show to my friend christopher staughton. “ah” he said as he went to a shelf, and took down another copy of the same book. in it i read: “to christopher staughton, the most accomplished of judges….and to joanna who charms us all…” you can see why so many people regarded him as not only the greatest judge of our time, but also the most endearing. ∗ delivered to the denning society lincoln’s inn hall, 23 november 2005. ** rt hon lord lloyd of berwick, a former lord of appeal in ordinary. 1 central london properties v high trees house [1947] kb 130. 2 lord denning “the need for a new equity” (1952) 5 current legal problems 1. the denning law journal 80 finally, something from the end of his life. it is a letter written by sir edward ford to the queen describing the occasion on which he presented lord denning with the badge of the order of merit. i have sir edward’s permission to quote from the letter, and i wish that i had time to quote it all. sir edward describes the house in whitchurch, only a stones throw from lord denning’s birthplace in a drapers shop in the middle of the town. lord denning was sitting in his library, immobile, looking into space rather like a statue of the buddha. he had insisted on dressing up for the occasion and was wearing a morning coat, grey waistcoat and black striped trousers. after the badge had been presented, and the ribbon placed round his neck, lord denning spoke “with considerable humour and discernment about his colleagues.” he talked also “with relish of his enjoyment of presiding in the court of appeal as master of the rolls, where he could exercise his own judgment as to the intention of an act of parliament, as opposed to those who felt that this was no business of a court of law.” he admitted that he was sometimes wrong, and not infrequently reversed on appeal. he constantly referred to the love of his garden, straddling the test, which according to him, “was the most beautiful garden in england.” that is the picture which sir edward ford paints of a great and good man in extreme old age. it reminds one of the death of falstaff: “his nose was as sharp as a pen and he babbled of green fields.” i now turn with reluctance to the subject of my lecture. i will start with a quotation. it comes from a debate initiated by lord irvine of lairg in the house of lords to call attention to the relations between the judiciary, the legislature and the executive. “i believe that this debate is timely. it comes when the country must believe that there is unprecedented antagonism between the judges and the government both over judicial review of ministerial decisions and the restrictions which the government propose on the judicial discretion in sentencing. certainly, there has been a long string of decisions striking down ministerial actions as unlawful. that has even led to some politicians calling judicial review itself into question. the public must be perplexed by what they perceive as a major clash over the distinct roles of parliament, ministers and the judges.” that debate could have taken place at any time during the last few years. it in fact took place during the dying days of the conservative government in june 1996, when michael howard was home secretary. the politicians to whom lord irvine referred as having called judicial review into question, were not, of course, labour politicians but conservative politicians. the denning law journal 81 i start with that quotation because i want to emphasise at the outset, that i shall not be attacking the attitude of any particular government. indeed i shall not be attacking anyone at all. the title of my lecture is not “judges and the government,” which might have been understood as a reference to this government; but judges and the executive. my theme will be that so far as relations between judges and the executive are concerned, all governments are much the same. one might have thought that a labour government would be less executive-minded (to use lord aitkins’ famous phrase) and less authoritarian than a conservative government. but this has not proved to be the case. so if i refer to events when mr blunkett was home secretary, and now mr clarke, that is only because they are more recent, and therefore fresher in our minds. if a week in politics is a long time, the days when mr howard was home secretary, although only ten years ago by the calendar, seem like the middle ages. in his recent press conference the lord chief justice said that there is no conflict between the judges and the government. he was right. however the fact that there is no conflict, does not mean there is not tension. there is, and always will be. for if there is no tension between the judges and the executive, it will mean that the judges are not doing their proper job. yet it would be an error to think that the tension is greater now than it ever was. when mr blunkett wrote in the evening standard that confidence in our criminal justice system was at an all time low, the late earl russell pointed out that he was mistaken. in 1388, all the judges were impeached, and the chief justice was executed. in 1609 when james i was arguing with his chief justice sir edward coke, the king became so incensed that he threw a punch. things are not as bad as that. lord irvine in his speech referred to two of the main areas of tension, judicial review and sentencing. i shall look at each of those in turn. there are, of course, other areas of underlying tension. but these are the areas where the tension most frequently comes to the surface. i start with judicial review, because judicial review is so little understood by the public and is so often misepresented by the press. what is judicial review? it is the means by which judges exercise control over administrative acts, including acts of the executive. the purpose of judicial review, put very simply, is to make sure that the executive acts within the law, and in particular within the powers they have been given by parliament. the extent of those powers is a question of law; and it is the existence of that question of law which justifies the intervention of the courts. once parliament has granted the powers, whatever they may be, it is not for parliament to say what they mean, and still less the executive. it is for the courts. the denning law journal 82 every other western country has a system of administrative law, in many cases more advanced than our own. thus in most if not all western countries there is a right to challenge legislation, both before and after it has been made. such a right would be unthinkable under our system. nevertheless, the right of the courts to question the lawfulness of administrative acts has always been there, even though it was exercised sparingly, and on more limited grounds, under the guise of the old prerogative writs. in the great case of conway v rimmer3 in 1968 judicial review was given a second birth. in 1976 it was given a new name. it was the rebirth and subsequent growth of judicial review which lord diplock described as the most important event in his judicial career. in 1976 there were some 500 applications for judicial review. by 2000 there were 4,242. by 2004 it had reached 6,057. this year it is likely to exceed 10,000. ministers use these figures to suggest that the judges are becoming too aggressive. are they right? is there any evidence that the judges have been stepping beyond their constitutional role? are they exercising a political function in judicial review or are they not? those are the very questions which lord wilberforce posed in the debate in the house of lords in 1996 to which i have already referred. in 1996 he answered both questions with a categoric negative. i believe he would give the same answers today. so what is the explanation for this great increase in judicial review? well the first and obvious point is that the courts have no control over the number of applications that are made. anybody can apply for judicial review, if he has a grievance or feels he has a grievance, because of some action or inaction on the part of the executive. the judges cannot stop him. so the relevant question is not how many applications are made, but how many applications have succeeded. in fact the number of successful applications has fallen steadily from 730 in 2000 to 141 in 2004, and the proportion of successful applications has remained roughly the same, at a little over half. so what is the explanation for the huge increase in the number of applications for judicial review, since it clearly cannot be that the judges are becoming more aggressive. one obvious explanation is the increase in the number of asylum seekers. another is that as we become subject to more and more regulation in our everyday lives there is more and more scope for genuine grievances. moreover we are now more than ever aware from what we read in the newspapers of our right to ventilate those grievances in court. those reasons are surely enough to explain the increase. i accept, of course, that if the substantive grounds for quashing a decision of the executive had become more favourable to the complainant, then the executive might indeed have cause for concern. but i see no evidence that that 3 conway v rimmer and another [1968] ac 910. the denning law journal 83 is so. it is true that, the language in which the test is expressed has moved on from the original statement in wednesbury4 through the more recent formulation of lord diplock in the gchq5 case. but the underlying function of the judge in judicial review is exactly the same as it always was; he is not to substitute his own views of what is reasonable for that of the executive. he is there to ensure that the executive comply with the rule of law. judicial review is thus the foundation of the rule of law, just as habeas corpus is the foundation of personal liberty. unless the judges perform that vital function, the outlook for our parliamentary democracy would be bleak indeed. so if i am right that the answers to lord wilberforce’s questions are the same now as they were in 1996; if, in other words, the judges are not exercising a political function in judicial review, or straying beyond their constitutional role, the next question is whether there have been any departures from that general rule. can the executive point to any case in which an individual judge has gone beyond his proper role? this is what mr blunkett set out to do in 2003. the judge in question was mr justice collins. the case was an application for judicial review arising out of the nationality, immigration and asylum act 2002. that was the act under which asylum seekers were required to lodge their claims for asylum as soon as reasonably practicable after arrival, or lose their right to benefits. it is important to notice that the judge did not say that the legislation was incompatible with the human rights act or anything of that sort. he said merely that the way in which immigration officials were operating the act was unfair. he said also that depriving asylum seekers of all means of support could amount to inhuman or degrading treatment in breach of article 3 of echr, a point on which he was upheld very recently by the house of lords: see limbuela v secretary of state for home affairs.6 mr justice collins delivered his judgment in the usual way at 10.30am on 19 february 2003 in the administrative court in the royal courts of justice. mr blunkett was interviewed the next day on the bbc radio 4 programme “world at one.” he said: “frankly, i am fed up with having to deal with a situation where parliament debates the issues and the judges then overturn them…i am absolutely clear that we do not accept what mr justice collins has said. we will seek to overturn it.” 4 associated provincial picture houses ltd v wednesbury corpn [1948] 1 kb 223. 5 council of civil service unions and others v minister for the civil service [1985] 1 ac 374. 6 r (limbuela) v secretary of state for the home department; r (tesema) v same; r (adam) v same [2005] ukhl 66, [2006] 1 ac 396. the denning law journal 84 in fact the relevant provisions of the 2002 act were debated very little. they were introduced by a late government amendment in the house of lords. but i pass that by. i will come back later to the way in which mr blunkett attempted, as he put it, “to deal with the situation.” at this stage i note only that these words were not spoken in the heat of the moment. they were spoken the following day after time for reflection. in due course the home office did indeed seek to overturn mr justice collins’ decision. but they failed. on 18 march the court of appeal dismissed the appeal, holding that the system established under the act for restricting benefits “had serious defects,” and had, as mr justice collins had said, been applied unfairly. it would have been well if the matter had ended there. but it did not. after still further time for reflection, mr blunkett wrote an article for the evening standard. the headline was: “i won’t give in to the judges.”7 he called for a long hard look at the constitutional relationship between parliament and the judges, and was clear as to how that relationship had changed. “judges now routinely use judicial review to rewrite the effect of the law that parliament has passed.” the article concludes: “at the moment we all too often have the worst of all worlds in which parliament deliberates for months over laws which are then systematically undermined by overly aggressive judicial review decisions.” a few days later he addressed the police federation at blackpool. he denied rumours that he was: “not at all pleased with the judges, i just want judges to live in the same real world as the rest of us; i just like judges who help us and help you to do the job.” the rumour that mr blunkett was not at all pleased with the judges recalls the practice of king john before magna carta. when he deprived a man of his lands the official record would record the reason as being “because we were cross with him.” 7 the evening standard, may 12 2003. the denning law journal 85 it could be said that none of this matters greatly so long as the judges, like mr justice collins, are unaffected, as i am sure they are, in the job they do. but it is unpleasant all the same to be attacked, especially as judges, unlike the wicked animal in the proverb, do not defend themselves. but there is a price to pay. for when ministers criticise the judiciary as a whole, or attack the decisions of individual judges, it is inevitably taken up by the press. and people believe what they read. the daily telegraph reported the prime minister as saying that he was prepared for a “show down with the judiciary to stop the courts thwarting the government’s attempts to curb the record flow of asylum seekers into britain.” he had ordered new legislation “to limit the role of judges in the interpretation of international human rights obligations and to reassert the primacy of parliament.” when the prime minister, if he was correctly reported, says that the judiciary are “thwarting the will of parliament” in the matter of asylum seekers can anyone doubt that undermines the trust which people place in the judiciary? fortunately, the polls all show that trust in the judiciary is still very high; far higher than trust in politicians. but trust is a precious commodity, and should not be put at risk. let me give an example of what i mean. not long ago, i was startled to be told by a friend that he was much concerned about the attitude of judges in asylum cases. a few days later he sent me a leader from the telegraph as confirmation of what he had been saying. the leader is headed “when judges stand in the way of justice.”8 the thrust of the article is that judges always and everywhere oppose repatriation orders not just of illegal immigrants but of known villains. “even if our judges were the wisest and the most disinterested people in britain they would have no right to cross the line that separates the judiciary from the legislature.” our judges may not all be equally wise. but the suggestion in a responsible newspaper that they are not disinterested does enormous harm. and so does the suggestion that they continually cross the line that separates the judiciary from the legislature. i go back to february 2003 when mr blunkett said he would have to “deal with the situation” as he put it. we did not have long to wait. on 27 november 2003, the asylum and immigration (treatment of claimants) bill came on for its first reading in the house of commons. by clause 10 there was to be a new section 108a in the 2002 act which would provide: 8 the daily telegraph, september 24 2005. the denning law journal 86 “no court shall have any supervisory or other jurisdiction (whether statutory or inherent) in relation to the [asylum and immigration appeal] tribunal.” there was no mistaking here the government’s intention to change “the rules of the game.” this was the showdown with the judges for which the prime minister had said he was prepared. the judges would no longer have the power to question decisions of the tribunal. errors of law would go uncorrected. the new clause 108a was heavily criticised by the joint committee on human rights in its 5th report published on 10 february 2004. ousting the review jurisdiction of the high court would, in the view of the joint committee, be a direct challenge to the rule of law, which includes the principle that people should have access to the ordinary courts to test the legality of decisions of inferior tribunals. such an ouster had not been justified by any argument advanced on behalf of the government. despite the advice of the human rights joint committee the home secretary pressed ahead. when the bill reached the house of lords, the ouster clause was still there. but then a strange thing happened. lord irvine of lairg put his name down to speak on second reading. although he was often to be seen on government back benches since his resignation as lord chancellor in june 2003, he had not opened his mouth. what he would have said on second reading we do not know. i would give much to have heard that speech. but as soon as he put his name down the ouster clause mysteriously disappeared from the bill. and as soon as the ouster clause had disappeared from the bill, lord irvine withdrew his name from the speakers list. i will always remember that incident as a paradigm example of power exercised from beyond the ministerial grave. pausing there, and returning to the title of my lecture, i hope i have shown that in the field of judicial review it is not the judges who have been seeking to “move the goalposts” but the executive. the attempt to exclude judicial review in asylum cases was, in my view, outrageous. fortunately, it failed. i return later to speculate what would have happened if the attempt had succeeded. in the meantime, i remain puzzled why it was that neither the lord chancellor, nor other ministers whose duty it is under the constitutional reform act 2005 to uphold the existing rule of law and the continued independence of the judiciary, raised so much as an eyebrow. it makes me wonder how effective those solemn words will prove. i now turn to the second of my two areas of tension. i start with another quotation. in 1996 a conservative government published its proposals for automatic life sentences for those convicted of a serious violent or sexual offence for the second time and minimum sentences of seven and three years the denning law journal 87 for repeat class “a” drug offenders, and domestic burglars. in a speech in the house of lords the lord chief justice lord taylor said: “i believe it to be of the first importance for me, while still holding the office of lord chief justice, to inform the house directly of the grave consequences which will follow if the main proposals of the white paper were given statutory affect . . . quite simply, minimum sentences must involve a denial of justice.” those who heard that speech, as i did will never forget it. lord taylor was very ill. it required immense courage for him to come to the house at all. within a month or two he had retired at lord chief justice and within less than a year he had died. the proposals which lord taylor has condemned were later implemented in the crime (sentences) act 1997. when the bill was going through parliament, lord bingham of cornhill, who had succeeded lord taylor as lord chief justice, expressed his “profound anxiety.” he posed four questions for consideration in the house of lords. (1) were the provisions just? (2) would they protect the public by reducing the level of crime? (3) would they be cost effective? (4) would they be workable? he answered all four questions in the negative. i would give the same answer to all four questions today. the labour government has added to the list of offences carrying a minimum sentence. thus there is now a minimum sentence of five years for the possession of certain firearms. but more important the government has introduced an elaborate scale of starting points for determining the minimum term to be served by a convicted murderer, together with detailed aggravating and mitigating factors to be taken into account. these powers are contained in the criminal justice act 2003. they were mr blunkett’s answer to the decision of the house in lords in anderson v secretary of state,9 the case in which it was held that the part hitherto played by the home secretary in fixing the so-called tariff for convicted murderers was contrary to article 5 of the european convention. why are minimum sentences so unjust? the reason is simple. the purpose of all good sentencing must be to make the punishment fit the particular crime not the criminal offence. the circumstances in which crimes are committed are infinitely various. this is above all true in the case of murder which ranges from mercy killing at one end of the spectrum to the most brutal and most sadistic murders at the other. but the same is also true of other 9 [2003] 1 ac 837. the denning law journal 88 crimes for which minimum sentences have been set. it is the function of the judge who presides at a criminal trial perhaps his most important function to determine the sentence. he has seen the defendant in the dock. he has heard all the evidence. he knows all the circumstances. he is aware of the defendants previous record. he will be familiar with the guidelines laid down from time-to-time by the court of appeal for similar offences. why then can the judge not be trusted to impose the appropriate sentence? why should parliament want to place him in a sentencing straight-jacket? it is said that parliament must have a hand in sentencing so that it can reflect the views of the electorate. but this greatly under-estimates the extent to which sentencing policy is already influenced by public opinion. let me give an example from my own experience. when i first became a judge most cases of causing death by dangerous driving were dealt with by a fine or short sentence of imprisonment. for the most serious cases it could be eighteen months or perhaps two years at the most. nowadays such offences would meet with a sentence of six or eight years. that has been brought about not by parliament imposing a minimum sentence, but by parliament increasing the maximum sentence, from seven to fourteen years, a sure way of bringing about a rise in the general level of sentences for a particular offence, if that is what is required. but it has also been brought about by the judges’ own understanding of what the public requires. it is said that that is a job for politicians, not judges. the judges are “out of touch with the real world.” i am not so sure. judges, like everybody else, read the newspapers and watch television. like everyone else they learn from experience, from conducting trials and hearing appeals. a research project carried out among juries has shown that when jurymen have been asked whether they agreed or disagreed with the sentence of the judge, one third had no view one way or the other and can therefore be disregarded. but one third said that the sentence was just about right. of the remaining third, half said the sentence was more than they expected and half said that it was less. is it just possible that judges are more in touch with the real world than politicians imagine? more even, dare i say, than the politicians themselves? and by real world i mean the twelve men and women whom they see in the jury box every day? of course there will be cases where the sentence is much too low just as there are cases where the sentence is much too high. but that problem is not solved by a regime of minimum sentences. it is solved by the court of appeal. that is the very reason why the attorney-general is given power to refer cases to the court of appeal if he is of the view that the sentence is unduly lenient. i have to confess that i was opposed to that reform at the time. but i have changed my mind. the reform has worked. then it is said that the discretion of the judge is not excluded altogether, since the judge is entitled to disregard the minimum sentence if in his opinion, the denning law journal 89 which he must state in open court, there are exceptional circumstance. but “exceptional circumstances” are not defined; and in practice the term is given a narrow meaning. although it will enable the judge to mitigate the harshness of a minimum sentence in some of the cases to which the minimum sentences would apply, in the great majority of cases, it will not. then it is said that minimum sentences have worked well enough in the united states. so they could be made to work here. but minimum sentences are not working well in the united states. they are a source of constant friction between the judges and congress. in 1984 congress passed the sentencing reform act which laid out an elaborate sentencing framework within which federal judges are obliged to work. but it allowed what are called downward departures from the sentencing guidelines. the 1984 act was passed after full consultation with the judiciary. not so the protect act which was passed by congress in 2003. members of congress evidently believed that there were too many “downward departures from the sentencing guidelines.” at least that was the explanation given by the late great chief justice rehnquist in his 2003 year-end report on the federal judiciary. under the provisions of the protect act, congress will gather information about individual judges. they will discover how often and to what extent individual judges have sentenced below the guidelines. the chief justice described this in his report as “somewhat troubling.” he was not given to overstatement. it could, he said, “appear to be an unwarranted and ill considered effort to intimidate individual judges in the performance of their judicial duties.” it is clear both from his 2003 report and from his subsequent and last report in 2004 that rehnquist cj was seriously concerned by the effect that minimum sentences was having on relations between congress and the judiciary. it is not an example which we should follow. the experience of the united states shows also that where discretion is excluded in one area of the law it will always break out in another. this phenomenon was described by lord bingham in the speech from which i have already quoted. it was subsequently referred to by earl russell as “bingham’s law.” the consequence of bingham’s law is that minimum sentences may well prove counter productive in practice. if a successful prosecution for a second serious offence would produce a result which is obviously unfair, one of two things will happen. either the prosecution will proceed on a lesser offence, which does not attract the automatic life sentence; or if the prosecution proceeds with the more serious offence the jury will refuse to convict. putting it at its lowest, a defendant faced with a second trial, is unlikely to plead guilty even if he is caught red-handed. so why do governments place so much faith in minimum sentences? their stated object is usually to protect the public. for that purpose they say they must send out a “clear message” that repeat offences will not be tolerated. but the denning law journal 90 i sometimes wonder who actually receives these messages. is there any evidence that these messages are ever received by the criminals themselves who may or may not be minded to commit a second serious offence? is there any evidence that they are actually deterred? is it unduly cynical to think that the real reason for introducing minimum sentences is the same as that which underlies so much government legislation that the government wants to be seen to be doing something about something, in this case rising crime. i remember so well after the omagh bombing in 1994 parliament was recalled. tough new measures were promised. (incidentally why do tough new measures always come in rafts?) but what emerged was a provision which enables a police officer of certain seniority to give evidence in court that in his opinion the defendant belonged to a terrorist organisation. needless to say, that extraordinary provision which, to its shame, has now been re-enacted as section 108 of the terrorism act 200010 has never been of the slightest use to anyone. but it served its purpose of demonstrating that the government was doing something. once again i return to my title. have “the goalposts moved?” the answer must be “yes.” and it is the legislature which has moved the goalposts by depriving the judges of their discretion in an important field of sentencing. section 26911 and schedule 21 of the criminal justice act 2003 was an attempt by the legislature, successful in the event, to regain some of the ground lost by the home secretary as a result of the decision in anderson’s case. some commentators referred to it as “blunkett’s revenge.” but let the last words be with lord woolf. in a speech on second reading of the bill in the house of lords which was as wise as it was restrained, he drew attention to the vital importance of taking sentencing out of politics, particularly in the case of crimes as serious as murder. he was surely right. and may i point out in 10 section 108: [this section was amended by the police (northern ireland) act 2000, s 78(2).] (1) this section applies where a person is charged with an offence under section 11. (2) subsection (3) applies where a police officer of at least the rank of superintendent states in oral evidence that in his opinion the accused (a) belongs to an organisation which is specified, or (b) belonged to an organisation at a time when it was specified. (3) where this subsection applies (a) the statement shall be admissible as evidence of the matter stated, but (b) the accused shall not be committed for trial, be found to have a case to answer or be convicted solely on the basis of the statement. (4) in this section 'police officer' means a member of (a) a police force within the meaning of the police act 1996 or the police (scotland) act 1967, or (b) the police service of northern ireland.” 11 determination of minimum term in relation to mandatory life sentence. the denning law journal 91 passing, now that i have quoted from the speeches of three chief justices in the house of lords, that we shall never again hear the voice of the chief justice in parliament again when part 6 of the constitutional reform act is brought into force. this is something i deeply regret. anderson’s case, to which i referred a moment or so ago, leads me naturally to the field of human rights. it was impossible in that case to read the relevant statutory provisions so as to give effect to article 6 of the convention, so section 3 of the human rights act was not available. the house of lords had no alternative but to make a declaration of incompatibility under section 4. different views have been expressed as to whether section 3 or section 4 was intended to be the primary remedy under the human rights act. whatever the correct view about that, it is at least certain that section 4 has proved effective. in the few years since the act came into force there have been seventeen declarations of incompatibility, of which five were overturned on appeal. in every case where a declaration has been made, and not overturned, the government has responded by repealing or amending the relevant legislation. the most recent and by far the most significant case was the government’s response to the belmarsh decision. i shall come back to that case in a moment. but first i must return to my title. has the human rights act moved the goal posts? the answer is obvious. of course it has. but not perhaps to quite extent that most people imagine, and certainly not to the extent that some commentators would wish. the judges have always enforced human rights. what the convention did was to spell out the rights in the form of code. from the moment the convention came into force on 21 september 1953 our courts have interpreted ambiguous legislation so far as they could, in a way which was compatible with the convention. this is something which the courts have always done. from the moment in january 1966 when the united kingdom accepted the right of individual petition, there has been a succession of cases brought before the court in strasbourg in which the united kingdom has been found to have breached convention rights. so the rights were there and could, if necessary, be enforced. what was new about the human rights act in 1998 was that it “brought rights home.” i have often wondered who invented that description. it may have been jack straw himself, when he was shadow home secretary. but whoever it was, it was a stroke of genius. the act brought home rights in two quite different senses. it enabled “home grown” judges to do what was already being done by judges in strasbourg. but it also brought home rights to the british people. the passing of the human rights act did more than anything to raise awareness of human rights, and our ability to enforce those rights in a domestic court. so the judges in england and scotland have a new and important role. it is a role which they acquired from a labour government, after many years of the denning law journal 92 resistance by the conservatives. indeed it is a role which is increasingly thrust on the judges in current legislation. the 2002 nationality, immigration and asylum act is a good example. section 55(1) prohibits the home secretary from providing support to late applicants. but s 55(5) obliges him to provide support if is necessary to do so in order to avoid a breach of his human rights. this is the narrow path which the house of lords explored in limbuela’s case. the ground on which the conservatives opposed incorporation of the convention was that it would give too much power to the judges, and tempt them to cross the forbidden line into the realm of political decision making. while in one sense the judges have been given more power (although i would prefer to say they have been given a new role) they have been scrupulously careful not to cross the forbidden line. this was never more clearly shown than in the belmarsh case. the facts are now so well known, that a brief summary will suffice. under part 4 of the anti-terrorism crime and security act 2001, the government took power to detain foreign nationals who were suspected of being terrorists, if, for one reason or another, they could not be deported. since detention without charge was the clearest possible breach of the right to liberty under article 5 of the convention, the united kingdom was obliged to derogate from the convention under article 15. accordingly, on 11 november 2001 the home secretary made a designated derogation order which was subsequently approved by parliament on 21 november. sixteen suspected terrorists were thereupon detained at belmarsh under part 4 of the act. three years later, their case came before the house of lords. the question was whether the derogation order was valid. this turned on whether there existed a public emergency threatening the life of the nation (the first issue), and, if so, whether the measures contained in part 4 for the indefinite detention of foreign nationals without charge went beyond what was strictly necessary. where those measures “strictly required by the exigencies of the situation.” on the first question eight out of nine law lords held that there were insufficient grounds to displace the decision of the home secretary that the safety of the nation was indeed threatened. but on the second question they held that the measures taken to deal with the threat went beyond what was strictly necessary. the reason for this view was that no such measures had been thought necessary in the case of british nationals. the evidence was that the threat posed by british nationals was as great as that posed by foreign nationals, a point of fact upon which the events of 7 july have proved the law lords to have been right. if the threat posed by british nationals could be contained by existing terrorist legislation without part 4 of the 2001 act, so could the threat from foreign nationals. thus the government’s response to 9/11 was one which was not “strictly required by the exigencies of the situation.” accordingly, they quashed the designated derogation order. but the denning law journal 93 they could not, of course, quash part 4 of the act. they could only make a declaration of incompatibility, which they did. the importance of the case for the future lies in the test that the law lords applied in answering the two questions. they rejected the attorney-general’s argument that the courts must defer to the executive in all cases involving national security. the best approach, according to lord bingham, was to analyse each issue according to its political content and its legal content. the greater the political content and the smaller the legal content, the less scope there would be for the judges to intervene. the first issue whether there was a public emergency threatening the safety of the nation lay at the political end of the spectrum. the issue was not one on which the law lords were well qualified to express a view as judges. accordingly they declined to intervene. on the second issue, whether the measures contained in part 4 were a proportional response, the position was different. no doubt there was a political element in the decision, since it required the balancing of individual human rights against national security. but the decision was not purely political. it involved an element of judgment on which the law lords were qualified and entitled to express a view; and not only qualified and entitled, but obliged under the terms of the human rights act. as lord brown of eatonunder-heywood has put it, “judges nowadays have no alternative but to apply the act. it is a responsibility which they cannot abdicate.” if the government had rejected the decision in a’s case, as it could have done, and renewed part 4 of the 2001 act when it expired, there would have been a major constitutional crisis. i shall never forget the sense of relief when on 21 january 2005 just a few days before part 4 of the 2001 act was due to expire, mr clarke as home secretary announced that the government would accept the declaration of incompatibility. part 4 of the 2001 act would not be renewed. instead it would be replaced by new legislation. mr clarke looked like a man in agony. but he made the right decision. i would like to think that mr clarke’s quiet acceptance of the decision in a’s case marked the start of a new chapter in the relationship between the judges and the executive. instead of crying foul, as the government might well have done when mr blunkett was home secretary, the executive has recognised that judges also have a job to do, especially in the realm of human rights. if this is so, then a’s case was a decision of huge importance, not only in what it decided, but in the manner of the government’s acceptance of that decision. herein lies a paradox. the implementation of the human rights act by the judges might have lead to even greater tension between the judges and the executive than has been the case in the field of judicial review and sentencing. in fact it has not, because of the care which judges have exercised not to cross the forbidden line. a’s case was a shining example. if that example is followed by the judiciary, and if the executive shows the same self-restraint in the denning law journal 94 other fields as mr clarke has shown in responding to a’s case, then the omens are good. i am glad to end on an upbeat note. but i have one short footnote to add. i am alarmed by the prime minister’s hint that he will introduce legislation to limit the role of judges in the interpretation of human rights obligations, and to reassert the primacy of parliament. i hope he was misreported. because he must know that it is for the judges, and ultimately for strasbourg, to say what the convention means. it has been said that parliament can do anything except divide something into three equal fourths. but except in the land inhabited by humpty dumpty, even parliament cannot make words mean what they do not mean. if the suggestion is that parliament should change the words, then the question will arise whether we can remain parties to the convention; and if we cease to be parties to the convention the question will arise as to whether we can remain in europe. i am very conscious that i have not had time to touch on what many commentators and two or three distinguished members of the court of appeal see as the most important effect of the human rights act, namely, that it marks the start of a move towards a new constitutional settlement, in which fundamental or constitutional rights will sit alongside the supremacy of parliament, with sovereignty being shared between parliament and the courts. it is an exciting thought. it requires another lecture, of which there have already been many. i would say only this. if we are to move in that direction, we must move with great caution. we cannot expect the executive to exercise selfrestraint in their dealings with the judges unless the judges do the same. this will at once class me, i know, among lord denning’s timorous souls. but i must bear that with such equanimity as i can command. the judges and the executive – have the goalposts been moved? denning lecture 2005( for the purposes of right to self-determination, how does one define people in context of kashmir the denning law journal 27 the denning law journal 2009 vol 21 pp 27-48 raising our heads above the parapet? societal attitudes to assisted suicide and consideration of the need for law reform in england and wales karen dyer∗ an introduction to death death has been described as the last taboo.1 it is unsurprising therefore that those individuals who openly proclaim to desire death find themselves headline news. in october 2008, debbie purdy, who suffers with multiple sclerosis, challenged the legality of the failure of the director of public prosecutions to issue guidance as to the circumstances in which individuals will or will not be prosecuted for assisting another person to commit suicide.2 the judgment was pronounced barely two weeks after injured rugby player dan james travelled with his parents to switzerland, to secure his death with the help of the local group, diginitas.3 james was reportedly the youngest of the 100 britons who have travelled to dignitas to find the ‘sanctuary of death.’ however, sky tv’s screening of the assisted death of craig ewert in december was no doubt the most controversial event of the year in this respect. by comparison to ancient civilizations who prepared for death in the most ostentatious of fashions,4 modern britain appears ill-equipped to deal with death and unprepared to talk about it. this situation has been exacerbated by ∗ ba (warwick), llm (kent), lecturer in law, university of buckingham. 1 the cis funeral plan tackling death as the last taboo.htm published 4th october 2006. this encourages people to plan ahead for their funeral, with pre-pay instalments. 2 r (on application of debbie purdy) v dpp [2008] ewhc 2565. this ruling has now been overturned by the house of lords. r (on the application of purdy) (appellant) v director of public prosecutions (respondent) [2009] ukhl 45. 3 see nick britton “police quiz parents on assisted suicide of rugby son” the daily telegraph, saturday october 18th 2008. no charges have been made. 4 the pyramids at giza being are outstanding example. raising our heads above the parapet? 28 the lack of a universal definition of death.5 this is somewhat ironic as statistics indicated that over nine thousand deaths each week in england and wales.6 it is well known for young children to deny that they will ever die,7 but adults also seem reluctant to face the obvious truth, with two-thirds of us dying intestate.8 indeed followers of various faiths herald the ‘life everlasting.’ the original christian belief being, for example, that death is “only as a preparation for the hereafter.’9 within this current climate of death denial, medicine has weaved a further layer of complication. medical developments during the last century render it possible to prolong life in all sorts of ways unbelievable to our ancestors. yet no matter how successful medicine can be, it cannot prolong life indefinitely, nor can it deny the ageing process. current society faces an ever-ageing population, increasingly reliant upon a minority of young and physically superior beings, for support. jonathan swift in ‘gulliver’s travels’ described this very society nearly three hundred years ago.10 this satirical masterpiece, describes in agonising detail the quality of life and autonomy held by the immortal race known as the struldbruggs. “as soon as they have completed the term of eighty years, they are looked on as dead in law; their heirs immediately succeed to their 5 although there is now a new code of practise in the “diagnostic confirmation of death” produced by the academy of medical royal colleges october 2008 (available online at www.aomrc.org.uk) there is no legal definition of death. 6 www.statistics.gov.uk weekly deaths registered in england and wales for the week ending 17th october 2008 was 9,501 for the week ending 7th november 2008 there was an estimated 9,900. in january 2009 the weekly deaths were in the region of 13,000 per week. 7 “talking to children about death” p 6 produced by the hospice organisation. accessed through www.hospicenet.org/html/talking/html 8 national association of head teachers, issue 22 april 2004 gives a figure of 72% of the population in the uk as not having a will. allmediascotland.com (26/04/2006) reports that 67% of people in scotland do not have a will. if two-thirds of the nation are reluctant to draw up a traditional will, it is to be questioned as to how many will prepare an advanced directive, should they be enforceable in the uk. a similar pattern can be seen in other jurisdictions. marsha goetting in “dying without a written will in montana: who receives your property?” indicates that 60% of the population of montana die intestate. http://www.montana.edu/wwwpb/pubs/mt8908.html 9 glanville williams the sanctity of life and the criminal law (faber & faber, 1958) p 229: “the christian belief was that life on earth was important only as a preparation for the hereafter.” 10 swift j gulliver’s travels (1726). far from being a children’s book, this was one of the most satiric and controversial works of its time, and the author’s views still resonate three centuries later. http://www.aomrc.org.uk/ http://www.statistics.gov.uk/ http://www.hospicenet.org/html/talking/html the denning law journal 29 estates…they are held incapable of any employment of trust or profit, they cannot purchase land or take leases, neither are they allowed to be witnesses in any cause, either civil or criminal…at ninety they lose their teeth and hair…[but] the diseases they were subject to, still continue without increasing or diminishing.”11 is this a fate to which society would subscribe? it appears that many are crying out for a change in english law to allow assisted suicide to take place, yet parliament constantly refuses to pass such legislation. according to lord joffe12 “opinion polls, over 25 years, consistently show between 71 per cent and 87 per cent in favour of assisted dying.”13 yet despite this, in may 2006, lord joffe’s ‘assisted dying for the terminally ill bill’ was postponed for six months. it was obvious to all concerned that the postponement was an attempt to defeat the bill, which has joined the ever-growing list of failed attempts to pass such legislation.14 as the current prime minister gordon brown has openly declared his hostility to such legislation, and the british medical association is against a change in the law, despite the fact that 40 per cent of gps support a change in the law,15 it is unlikely that such a bill will be successful in the near future. if society truly supports assisted dying, then it needs to adopt a more pro-active approach should it wish to see legislation passed. this paper aims to explore current attitudes to assisted dying, and death generally, discuss current legal provisions in force worldwide, and to evaluate whether any law reforms are a) desirable and b) achievable in the united kingdom today. legal and philosophical attitudes to assisted suicide 1. legal issues the taboo around death intensifies, with the mention of the ‘s’ word. the idea that one may be free to take one’s own life often shocks the conscience of the populace. this is somewhat ironic, as suicide is no recent phenomena. in roman society, suicide was an accepted means by which honor could be 11 in book iii journey to laputa, chapter 10. 12 hansard 12th may 2006, column 1185. 13 this includes “80 per cent of christians, of all denominations”, ibid at 1186. 14 eg 1936 euthanasia bill and the voluntary euthanasia bill 1969. conversely, the medical treatment (prevention of euthanasia) bill 1999 aimed to make it unlawful to withdraw or withhold futile treatment. 15 kate devlin “40pc of gps support calls to legalise euthanasia” the daily telegraph thursday february 5th 2009. raising our heads above the parapet? 30 preserved. those charged with capital crimes, for example, could prevent confiscation of their family's estate by taking their own lives before being convicted in court. indeed far from being thought of performing a dreadful sin, early christians took their own lives, primarily in the guise of martyrdom, “for fear of falling before temptation.”16 in england and wales suicide was a capital offence until the passing of the suicide act 1961,17 and historically, those who successfully committed suicide were not permitted the usual burial rites.18 until the early nineteenth century, any person who recovered from an unsuccessful suicide attempt would be tried and hanged. the crown then confiscated the deceased’s property.19 the 1961 act decriminalised suicide itself, but nonetheless it remains illegal to assist suicide, by virtue of section 2(1) suicide act 1960. 20 in sweden and finland, where suicide is legal, the countries’ legal systems support the logical argument that as suicide is not a crime, to assist in a suicide cannot be a criminal offence. in other european countries, where assisted suicide remains a crime, rarely does prosecution occur. should a conviction be obtained, sentences given are considerably lower than here. this, according to the death with dignity (formally voluntary euthanasia society), makes the legal position in england and wales regarding assisted suicides “the most restrictive and inflexible in europe. only ireland compares.” 21 it is important to establish the difference between euthanasia and assisted suicide, as often the terms are used interchangeably. assisted suicide and euthanasia are not strictly synonymous. euthanasia comes from a greek derivative meaning ‘gentle and easy death,’22 but in the modern context, it is the act of one person that brings death to another. in britain, active voluntary 16 glanville williams, above n 9, p 229. 17 the rules regarding suicide pacts had previously been addressed in the homicide act 1957. under section 4(1) (as amended by the suicide act 1961 s 3 (2) schedule 2) a survivor of a suicide pact would be charged with manslaughter rather than murder. 18 they would be swung from a gibbet then buried in the highway with a stake through the body. 19 the forfeiture act 1870, abolished forfeiture for suicide. (this endorsed common practice seen in england at this stage.) 20 s 2 (1) a person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years. 21 in the european court of human rights diane pretty v uk application 2346/02. intervention by the voluntary euthanasia society of england and wales. diane pretty suffered from motor neurone disease, and did not wish to go through the end stage of her illness. 22 the concise oxford dictionary (oxford, 7th edn, 1981). the denning law journal 31 euthanasia constitutes murder and carries a mandatory life sentence regardless of the wishes of the deceased. assisted suicide covers various shades of activity, thus for example, although death might occur by injecting poison into another, equally a person is assisting a suicide merely by supplying the poison itself. the difference of involvement or mens rea, would be reflected purely by the sentence meted out.23 where doctors assist, known as physician assisted suicide (pas), they may find themselves liable for murder. how many doctors refuse on ethical rather than legal grounds is unknown, but under current legislation a doctor can put himself at very great risk if he takes positive action. if an attending physician’s primary intention was his patient’s death,24 the doctor could face murder charges.25 such was the situation that concerned dr david moor who faced murder charges after injecting a patient with diamorphine.26 his defence was that as diamorphine relieves pain, his actions came under the legally and ethically acceptable principle of ‘double effect.’ the principle being first formulated in law by devlin j during r v adams.27 in summing up devlin j stated: “if the first purpose of medicine, the restoration of health, can no longer be achieved there is still much for a doctor to do, and he is entitled to do all that is proper and necessary to relieve pain and suffering, even if the measures he takes may incidentally shorten human life.” this legal principle will only protect a doctor from criminal liability where the patient has a terminal illness and “has reached the stage where there is no hope of recovery.”28 the case of dr nigel cox highlights the vulnerability of the medical profession.29 dr cox injected his dying patient, at her repeated request, with a solution of potassium chloride, resulting in death shortly afterwards. as potassium chloride has no pain relieving 23 the circumstances in which distributors of a booklet published by the (then) voluntary euthanasia society advising on methods of suicide were considered in attorney-general v able [1984] qb 795, no causal link was found between the booklet and those who had committed suicide. 24 r v cox (1992) 12 bmlr 38. 25 for a very rare exception re: a (conjoined twins: surgical separation) (2000) 4 all er 961. 26 r v moor [1999] crim lr 31. 27 r v (bodkin) adams (1957) crim lr 354 per devlin j. 28 m. otlowski, c steven and r hassan “management of death, dying and euthanasia” (1994) 20 j med ethics 41. 29 r v cox (1992) 12 bmlr 38. raising our heads above the parapet? 32 qualities, ‘double effect’ could not be a defence. dr cox was convicted of attempted murder and given a twelve month suspended sentence.30 yet, despite the possibility of a criminal record, it was reported in 2004, that doctors helped some 18,000 patients die each year in the united kingdom.31 the protection of medical professionals remains one of the strongest arguments in favour of legalising assisted suicide. 2. patient autonomy although english law recognises the right to autonomy with regard to the act of suicide itself,32 in terms of assisted suicide, patients have no legal right to ask for medical intervention to end life, nor can they give valid consent to their death.33 a competent patient’s right to physical self-determination only extends as far as passive euthanasiathe removal or refusal of medical treatment leading to death. many have argued that there is a philosophical inconsistency in british law regarding personal autonomy and selfdetermination, with regards to suicide and assisted suicide. the word ‘autonomy’ derives from the greek meaning ‘self-rule.’ however what amounts to ‘autonomy’ in a medical setting leads to discussion in itself. patient autonomy “is practiced at different locations,”34 and is not just under attack in the consulting room. it has been said “the principle of autonomy is the principle of liberty.”35 this is to be questioned as a definition for medical ethics. to equate being a patient, with being at liberty, (if patients were asked if they felt at liberty in a hospital environment) would prove a challenge. it is likely that a number would intimate that their position was more akin to that of a prisoner.36 it has been pointed out that there is a 30 as the body had been cremated before enquiries took place it was impossible clarify causation of death and the murder charge was dropped. 31 as calculated by dr hazel biggs, and reported by jamie doward in “revealed: full scale of euthanasia in britain” the observer 19th september 2004. although as noted in hansard 12th may 2006 column 1185, recent research suggests a more realistic figure of 900 deaths each year. 32 autonomy means literally ‘self-rule’: see margaret brazier medicine patients and the law (london: penguin, 3rd edn, 2003) p 38. 33 r v brown [1994] 1ac 212 this case is an authority for stating that consent cannot be a valid defence for injuries of actual bodily harm or greater, except in defined circumstances (suicide is not such a circumstance). 34 rita m struhkamp “patient autonomy: a view from the kitchen” (2005) 8 medicine, health care and philosophy 105. 35 t takal “concepts of ‘person’ and ‘liberty’, and their implications to our fading notions of autonomy” (2007) 33 j med ethics 225. 36 a number of people the author has met during her time both as student and patient, would express their discontent as being ‘locked-up’ or ‘kept-in.’ the denning law journal 33 danger of regarding ‘autonomy’ as having a universally understood single meaning.37 an attempt to define autonomy with one all-embracing description is likely to be “made in vain.”38 in reality, a spectrum of definitions can be viewed. the label of ‘self-determination’ has perhaps been given the most credence as the essential aspect of autonomy by ethicists,39 and occurs when a person “does what she chooses to do (because she chooses to do so) and she chooses to do what she does because she wants to do so.”40 those who ardently support implementing legislation on assisted dying, imply that ‘autonomy’ is the only worthwhile argument. yet these protagonists disregard the fact that there are a number of people who, for reasons of birth and education, can never be truly autonomous in their decision-making. there is always the potential of the unscrupulous relative taking advantage of a vulnerable person.41 this is perhaps the most compelling argument against the legalisation of euthanasia in the uk, and an argument often cited by various religious organisations who strongly condemn such legislation. 3. doctor autonomy the hippocratic oath decrees a doctor “shall do no harm.” this places doctors in a dilemma if a patient requests ‘an end’. in 2003 a survey for the independent newspaper revealed that 50 per cent of british doctors had experienced patients requesting the right to die, with a “surprisingly large number” of doctors admitting that they have been involved with active voluntary euthanasia.42 although appearing at odds with the hippocratic oath it might be argued that it causes more harm to prolong endless agony rather than engineer a swift end. unfortunately the harold shipman enquiry has helped label all those who genuinely wish to ease pain, with the tag of murderer.43 public hysteria over the episode has had a backlash on the medical profession to the point where in some health authorities district 37 kay wheat “the law’s treatment of the suicidal” (2000) 8 med l rev 182. 38 lars sandman “on the autonomy turf; assessing the value of autonomy to patients” (2004) 7 medicine, health care and philosophy 261. 39 ibid at 262. 40 ibid. 41 r v mcshane (1977) 66 cr app r 97. here a daughter encouraged her elderly mother to commit suicide as she wanted her inheritance. there is (understandable) fear that permitting assisted suicide would encourage this type of behaviour. 42 margaret brazier medicine patients and the law (london: penguin, 3rd edn, 2003) p 439. 43 the infamous doctor may well have killed over 300 patients. raising our heads above the parapet? 34 nurses are no longer allowed to carry morphine in their bags without rigid inspection.44 ironically, the ‘ancient’ oath is far from fixed in stone; it has been radically transformed to reflect the modern age, with some of its original pledges removed.45 furthermore, there is concern as to when a medical student should swear the oath, one author preferring the oath to be taken when a student is proficient in the craft of a doctor and not ‘blindly sign’ as a novice.46 certain training institutions encourage their students to devise their own declaration,47 and it is interesting to note that the model promoted by professor gillon48 does not preclude assisted dying, but rather stipulates that trainees will do nothing to the ‘overall harm’ of the patient. if a doctor believed that ‘overall harm’ was the prolonging of life for a specific patient, the reluctance to administer a lethal injection might be overcome. it appears hypocritical to only select aspects of the oath that appeal. the test will be subjective, as one doctor’s support of ‘euthanasia’ is another man’s poison. it is submitted that the modernisation of the current law for assisted suicide should not be impeded because of an ancient, but variable tradition. with patient autonomy on the increase, perhaps now is the time for society to specify how doctors conduct their profession, rather than doctors themselves stipulating how patients should be treated. if society wants a doctor to act ‘unethically,’ the burden should be lifted from the doctor’s shoulders and passed to the patient. however, there would still remain the problem of who is to administer the lethal medication. it has been noted that general support from nursing staff falls when faced with the reality that it would be them, not the doctors, who may be called upon to complete the procedure.49 44 a personal friend reported a ‘two hour search,...sheer pandemonium’ when one vial of diamorphine was unaccounted for. it was eventually located in a corner of a car that was used during a night visit. (there was concern that it has been taken by a dying patient, or even worse, that the nurse had given him an extra dose!) 45 for example, not carrying out either surgery or abortions. 46 r m veatch “white coat ceremonies: a second opinion.” j med ethics (2002) 28 5-6. 47 eg imperial college, london, see r gillon “in defence of medical commitment ceremonies” (2002) 28 j med ethics 7. 48 ibid. 49 m berghs et al “the complexity of nurses attitudes toward euthanasia: a review of the literature” (2005) 31 j med ethics 441. a recent survey carried out on nurses.co.uk showed that only 20.9% of uk nurses think that assisted suicide should be legalised here. the denning law journal 35 ending life: acts v omissions campaigners against pas are particularly adamant that it is the patients who are unable to speak for themselves that are in most danger of being ‘euthanased’ without consent. this includes those suffering from ‘permanent vegetative state’ (pvs). a pvs patient may well appear to be awake and have their eyes open, they may breather without support, but will need a mechanised system of feeding to keep them alive. the case of tony bland50 stirred the emotions of the nation when his case came to court in 1993. bland was a victim of the infamous hillsborough disaster, in which 96 people died and another 400 where injured.51 he suffered massive and irreversible brain damage, and was in a pvs state for more than three years before doctors, with the parents’ permission, applied for a declaration to withdraw artificial feeding and therefore bring about his death.52 there is inconsistency bordering on hypocrisy when comparing positive acts to the currently legal route of omissions. it does not seem at all logical that a doctor who orders a life-support machine to be switched off (an omission) should be any less culpable that a doctor who administers a lethal cocktail (an act) therefore hastening death. lord goff discussed this very dichotomy during the bland case. his lordship stated: “i agree that the doctor’s conduct in discontinuing life support can properly be categorised as an omission. …and as a matter of general principle an omission such as this will not be unlawful unless it constitutes a breach of duty to the patient…it is true that the drawing of this distinction may lead to a charge of hypocrisy.”53 the bland ruling was unsatisfactory to a number of people. it only applied to patients in pvs. competent patients, who voluntarily requested death by the withdrawal of treatment, still had to obtain a court order. in such cases as these, capacity needs to be shown. in re ak,54 a sufferer from motor 50 airedale nhs trust v anthony bland [1993] ac 789. 51 due to inadequate policing, a surge of fans rushed forward crushing others after six minutes of semi-final between liverpool and nottingham forest at hillsborough stadium in sheffield 15th april 1989. 52 the house of lords permitted the withdrawal of artificial feeding. 53above n 50 at 865. it was unsurprising that this ruling brought forth a whirlwind of academic debate, as there is much academic discussion regarding the futility of medical treatment, and the bland case especially. see john m finnis “bland: crossing the rubicon” (1993) 109 lqr 329. 54 re: ak (medical treatment: consent) (2001) 1 flr 129. raising our heads above the parapet? 36 neurone disease had written an advanced directive, requesting the withdrawal of treatment, when he could no longer blink. the high court granted a declaration, stating that withdrawing life support was an omission, adding that it would in fact be unlawful not to respect the wishes of the patient, who wanted the machine switched off. however, doctors remained reluctant, to withdraw or withhold medication even though, as stated by the general medical council, “it is for the patient, not the doctor to determine what is in the patient’s own interests.”55 evidence of this can be seen in ms b v an nhs trust.56 ms b was a paralysed patient, who relied on a ventilator to breathe. she requested that the machine be turned off, but doctors initially refused to do so, judging her incompetent. ms b sought a court order and this was granted.57 the ventilator was switched off resulting in her death shortly afterwards. lady justice butler-sloss reiterated a competent patient’s complete right to refuse treatment, in such a situation specified guidelines.58 in future, a wise doctor will no doubt follow the guidelines and obtain ‘unequivocal assurances’ that this is the patient’s wishes. many in the uk wish to see a change in the law on grounds of compassion. the house of lords decision of r (on the application of mrs diane pretty) v director of public prosecutions (respondent) and secretary of state for the home department (interested party)59 followed by that of pretty v united kingdom,60 raised public awareness to assisted suicide, producing newspaper opinion polls of over 80 per cent in favour of its legalisation. diane pretty suffered motor neurone disease (mnd). this disease causes the motor neurons in the brain and spinal cord to shrink and disappear, so that the muscles can no longer receive signals to move. as a result, the muscles become smaller and weaker. gradually the body becomes paralyzed. the cause of motor neurone disease is unknown, although in a small number of cases there appears to be a hereditary element. as yet no cure has been found. the disease occurs worldwide with one to two people per 100,000 of the population, suffering from the disease. in the uk it is more prevalent in those aged between 50 to 70 years. it is more common in men than women there are different types of mnd and each will effect its victim in different ways, 55 “seeking patients’ consent: the ethical considerations” gmc uk nov 1998 p 5. 56 re: ms b v a nhs trust (2002) ewhc 429 (fam). 57 due to her condition, the court in the person of elizabeth butler-sloss, then president of the family division, attended her in hospital. 58 the guidelines, established after st george’s healthcare nhs trust v s (guidelines), r v collins, ex ps (no 2) [1999] fam 26 (1998) 44 bmlr 194. 59 [2001] ukhl 61. 60 european court of human rights diane pretty v uk application no 2346/02. the denning law journal 37 and over different periods of time. some notice that they are gradually becoming weaker, tripping over steps and dropping various items. for some, slurring of the speech and difficulty with swallowing will occur. however, all of the different variations the disease takes have a common thread in being a progressive degenerative illness that results in death. those suffering from the most common forms of the disease will experience the most rapid degeneration with approximately three years between diagnoses and death. mrs pretty had reached the stage in her illness where it was no longer possible to take her own life unaided, nor did she want to die straightaway, however, she did not want the disease to reach its final conclusion. the end stage of mnd sees the degeneration of rib muscles resulting in suffocation. it was this manner of death that mrs pretty wanted to avoid. her husband was prepared to help but, as has already been stated above, to assist in another’s suicide is a criminal offence contrary to section 2(1) suicide act 1960. therefore mrs pretty sought an undertaking from the director of public prosecutions that her husband would not be prosecuted should he assist in her death. she argued that the european convention of human rights (echr), she had a right to die under article 2. as the echr was then in force in domestic law by virtue of the human rights act 1998, she argued that the legal provision in the uk were such as to allow here to die with dignity at a time of her bidding, with assistance. the house of lords, though sympathetic to mrs pretty’s plight were not prepared to rule in her favour. having lost her appeal at the house of lords, diane pretty then took her appeal to the european court of human rights. the court refused to acknowledge that art.2 echr provided the right to die, and consequently her appeal was again unsuccessful. she died in may 2002, less then two weeks after the ruling at strasburg was pronounced. after diane pretty’s death, her husband helped to establish ukactnow. one of its members wrote in 2004: “the dilemma with my illness is possibly facing suicide whilst i still have some physical strength of my own. ending life sooner than i may want, because the law will not recognise the right to choose, seems cruel and inhumane to my family and myself.”61 the demand to be allowed to live as long as possible, rather than dying at a time they are able to perform the necessary actions, is a leitmotif, in many sufferers’ stories, and remains perhaps the most compelling reason why pas should be legalised. 61 www.ukactnow. raising our heads above the parapet? 38 international approaches 1. north america in canada, a similar dilemma to that faced by mrs pretty was shown in the rodriguez case.62 sue rodriguez suffered from the most common type of mnd known as amyotrophic lateral sclerosis (als) which is commonly referred to in north america as lou gehrig's disease.63 this type of mnd is seen in 65 per cent of cases. of those diagnosed with aml, 50 per cent of people die within three years of onset. occasionally a person can survive considerably longer than this, but a sufferer will experience a steady degeneration.64 ms rodriguez wished to gain the right to an assisted suicide in the future, should her illness became unbearable and she had lost the capacity to act for herself. she sought an order that would allow a qualified medical practitioner to set up equipment by which she could, herself, end her life when she believed the time was right to do so. therefore she applied to the supreme court of british columbia for an order that s 241 (b) of the criminal code, rsc, 1985, c c-46,65 should be declared invalid under the canadian charter of rights and freedoms (the "charter"). section 241(b) is similar to section 2 of the suicide act 1961. it provides: everyone who ...(b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. ms rodriguez argued that the criminal offence created by s 241(b) prohibits a person from aiding her to terminate her life when she cannot do so without assistance, thus depriving her of liberty and security of the person under s 7 of the charter.66 62 rodriguez v british columbia (attorney general) (1993) 107 dlr (4th) 342. 63 lou gehrig was a famous baseball player. he was diagnosed with the disease in 1939, dying two years later. 64 the most famous long-term survivor of this disease is stephen hawking who has been living with the disease for 40 years — ever since his diagnosis at age 21. 65 s 241: everyone who…(a) counsels a person to commit suicide or (b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. 66 s 7 of the charter provides: everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. the denning law journal 39 the british columbia court dismissed her application and a majority of the british columbia court of appeal affirmed the trial judge’s decision. ms. rodriguez then appealed to the supreme court of canada, where she argued that s 241(b) violates sections 7, 12, and 15 of the charter, as it prohibited a terminally ill person from committing physician assisted suicide.67 in the supreme court she lost he appeal by a 5:4 decision, the court finding s 241(b) to be constitutional. the court pronounced that state has an interest in protecting human life, and s 241(b), reflects this interest by protecting the vulnerable who, in a moment of weakness, might be persuaded to commit suicide. it was also noted, however, that ‘sanctity of life’ is not absolute and has changed over time, for example, as in britain, attempted suicide is no longer a criminal offence. canadian courts also recognize that patients have the right to refuse or withdraw treatment even if death results. rodriguez ended her life in 1994. since the rodriguez case, canadian courts have continued to enforce euthanasia laws, and have, on occasions, meted out stern punishments to those who assist in another’s death. in 1993, robert latimer used carbon monoxide to kill his 12-year-old disabled daughter, who had cerebral palsy.68 latimer’s argument that he had done so to relieve the pain and anguish she was suffering, was given short shrift, and he was convicted of second degree murder. the supreme court upheld the mandatory minimum sentence for second-degree murder, 10 years, as stipulated in s 235 of the criminal code. however, there remain inconsistencies. in one such situation nancy morrisson, a doctor from nova scotia, was charged with first-degree murder after giving a patient a deadly cocktail of non-painkilling drugs shortly after he was taken off life support. a judge dismissed the charges, saying that no reasonable jury would convict dr morrisson.69 the law in canada, then, is similar to that of the united kingdom. assisted suicide remains a crime, but there appears to be no consistency in prosecutions. however, over the border in the u.s. there are now two states which allow pas to take place. the state of oregon, on the west coast of the u.s. has had legal framework for pas since 1994, when the controversial oregon death with 67 s 12: everyone has the right not to be subjected to any cruel and unusual treatment or punishment. s 15 (1): every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 68 r v latimer [2001] 1 scr. 3. 69 professor barney sneiderman “dr nancy morrison and her dying patient: a case of medical necessity” ethics centre (2002); www.umanitoba.ca/centres/ethics/articles/barticle1.htm. raising our heads above the parapet? 40 dignity act 1994 was passed, although it took until 1997 to be operational. the act only applies to those who have reached the age of majority (which in oregon is 18 years of age) and have been diagnosed as being terminally ill. the act allows for a doctor to prescribe a fatal dose of barbiturates that the patients self-administer. unsurprisingly, the act has met with fierce opposition, its enactment was initially delayed as a court injunction prevented the measure from taking effect challenge to repeal the law was finally defeated in 1997. in 2006, the act was again challenged, this time by the former bush administration. in the supreme court, justices ruled in a 6-3 vote, that a federal drug law could not be used to prosecute oregon doctors who prescribed a lethal dose. since the ruling in 2006, it has been noticeable that other states are preparing to instigate similar legislation. between 1994 and 2006, there were 75 legislative bills to legalise pas in 21 states, of which failed, but in november 2008, washington state passed initiative 1000, which allows for pas. in december 2008, montana became the third state to allow for pas, as a result of a court ruling by judge dorothy mc carter, who wrote that “the montana constitutional rights of individual privacy and human dignity” gives a competent person, suffering from a terminal illness, the right to die with dignity. however, it is likely that this decision will be appealed by the state legislature, who believes that it should decide whether pas should be legalised. 2. belgium & netherlands the law in belgium and the netherlands goes yet further, with both countries allowing euthanasia to take place. (doctors actually administer a lethal injection, albeit in a controlled manner.) the belgium act on euthanasia 2002 defines euthanasia, as “intentionally terminating life by someone other than the person concerned at the latter’s request.” in belgium the patient must have reached the age of majority, or be an emancipated minor,70 and the request must be “voluntary, well-considered and repeated.” each act of euthanasia has to be reported to the police. it was recorded that in 2005, 360 deaths had occurred in this manner.71 this may seem a significant number, but it should be remembered that figure equates to the number of deaths that take place in the uk every six hours. by contrast in the netherlands, the law is not limited to adults, (the government is currently reviewing a protocol to allow euthanasia, with 70 belgium act on euthanasia 2002 chap ii s 3 ss1. 71 gundrun schultz “euthanasia rates double in belgium” lifesitenews.com tuesday february 7, 2006. the denning law journal 41 parental consent, for babies born with terminal illnesses) nor does a patient have to be terminally ill to request death, if a patent can show hopeless and unbearable suffering. the dutch legislation, “termination of life on request and assisted suicide (review procedures) act, was passed in 2001, after consultation with the country. however, it appears that this act merely legalised a practice that was already taking place. 72 it is to be questioned whether laws should be passed to endorse current practice; however, the very fact it occurs implies that it is what society wants. if there is no legal framework in place then it is not uncommon for society to obtain what it desires, albeit in a less salubrious fashion.73 what the law appears to have done is to give doctors “peace of mind” that they are operating within the law.74 3. active campaigns worldwide the number of campaigns that occur worldwide every year indicates the support for pas. in northern australia, there have been attempts to bring back legislation that was briefly in place thirteen years ago. northern australia was the first place where assisted suicide and euthanasia was actively legalised in 1995 when the “rights of the terminally ill (roti) act” was passed. it was in force for eight months before the act was repealed. the state of victoria is now also considering a similar act. the newly found energy in re-launching such legislation has occurred since the defeat of john howard’s liberal party in 2007, who held, what was seen as very strong conservative views in a variety of medico-legal areas, such as abortion and assisted reproduction for single-sex couples. these areas are now under consideration in parliament. in 2008, lothian msp margo macdonald launched a campaign to legalise assisted suicide in scotland. there has been similar action in the czech republic, where it has been reported that two-thirds of czech’s believe that euthanasia should be incorporated into national law.75 further a field, kerala in southern india, has recently angered church leaders by considering laws that would legalise euthanasia. all of the above indicate the progression of liberal laws in favour of pas. the most startling developments of late 72 there had been several decisions in court, from 1973 onwards, which showed a lenient view to those who had helped bring about another’s death. 73 statistics on ‘back-street abortions’ indicate how prevalent it was for a woman to take her life in her hands, until the abortion act 1967 was passed. 74 see marjike van den berg “euthanasia law five years old” www.radionetherlands.nl/currentaffairs/eut070330mc. 75 ctk “czech minister views proposal to legalise euthanasia unfortunate” 21.07.2008. www.ceskenoviny.cz/news/index_view.php?id=324110 raising our heads above the parapet? 42 though, have occurred in luxembourg. in february 2008 the luxembourg parliament, adopted a law that would allow assisted suicide in the duchy. it was anticipated that this would come into force last summer, but there have been the inevitable problems, which has shaken the constitution. no doubt haunted by the pope declaring the act to be “evil,”76 duke henri indicated his refusal to sign the law, in december, for “reasons of conscience.”77 members of the luxembourg parliament then threatened to amend the national constitution, to remove his power of veto. the duke agreed to sign such an amendment, stating that he would not them have to sign the act against his conscience. this singular surrender of power indicates the depths of emotions that are stirred up by any enactment of assisted suicide. ironically it seems that although politicians are allowed to vote in accordance with their beliefs, heads of state are not allowed to express their views at all. 4. switzerland in switzerland, although euthanasia is illegal, assisted suicide is not an offence in its own right and there are several groups who assist suicide. 78 the most publicised of these is dignitas, whose motto is "to live with dignity, to die with dignity." it was to this organisation that both dan james and craig ewert went for help. swiss members of dignitas are able to die in their own homes, but obviously this is not possible for ‘suicide tourists.’79 for nonnationals, dignitas once rented a flat in an apartment block in the residential suburb of wiedikon in zurich. unsurprisingly there were complaints and they were evicted from the flat. at one point, whilst looking for new accommodation, they assisted the death of a german ‘suicide tourist’ in a car park. the organisation currently operates in a business park in the village of schwerzenbach. 76 “pope decries euthanasia as ‘evil’ as luxembourg advances assisted suicide” christian telegraph 22/12/08 www.christiantelegraph.com/issue4325.html 77 “adf-allied attorneys prepared to challenge luxembourg assisted suicide law if passed” 10 december 2008 wwwtelladf.orgth 78 swiss law does not state that assisted suicide is legal. article 115 of the swiss penal code states that "whoever lures someone into suicide or provides assistance to commit suicide out of a self-interested motivation will, on completion of the suicide, be punished with up to five years' imprisonment". it only considers assisted suicide a crime, if the motive is selfish. there have been calls to look at dignitas regarding the financial ‘benefits’ that mr minnelli receives for a death. 79 there have been calls to tighten up the law in switzerland to stop ‘death tourism’ occurring. however, swiss ministers do not believe a change is necessary at the moment, as reported 2 june 2006 lifesitenews.com. the denning law journal 43 at first glance, the organisation may appear a somewhat cavalier, as it seems that a deadly cocktail can be bought, with no real consideration of the needs of the individual. however, a person is not granted his or her wish to die as of right. there is often involvement by two physicians, a psychologist and a lawyer, before the fatal prescription is handed over. it is reported that of the 150 people turning to dignitas for help during the period 1998 to 2004, only two changed their minds at the last minute.80 the rest took the lethal cocktail prepared for them. perhaps what is more startling is the need for such an organisation. it is submitted that if a similar, but arguably more controlled facility were allowed in britain, it would be a more holistic solution for all concerned. evaluation of palliative care many would argue that the current law protects the vulnerable from being forced to submit to euthanasia. it is feared that these vulnerable people will opt for assisted suicide rather than be a burden to their families. there is also concern that pain effects mental capacity, and the patient is unable to consent to death. opponents to physician-assisted suicide very often state that there should be less emphasis on assisted suicides and more on palliative care. this area is not in contention from those who support assisted suicide in relation to terminally ill patients.81 it is generally agreed that good palliative care should always be the first aim, and assisted suicide the last. to emphasis this further, studies have shown that those receiving good palliative care are less likely to ask for pas.82 however, various studies on the subject of terminal illness show that not all pain is effectively controlled. it has been reported in one study, that approximately 50 per cent of conscious patients who were dying in hospital suffered a degree of pain ranging from moderate to severe during the last three days of their lives.83 the problem of inadequate pain relief appears to be worse for women than men. 84 a further survey indicates that some 80 www.aucklandves.orcon.net.nz/intnews.htm 14/01/04. 81 although there are some who wish for assisted suicide who do not suffer from ‘pain’ as such. those who suffer from mental anguish cannot be treated, except to given made permanently unconscious. this surely is a ‘lack of dignity.’ 82 in 2007 the ottawa health research institute conducted a study of 379 canadians receiving palliative care. it revealed that 10% of the patients would have asked for pas initially, had it been available, but changed their minds once pain was under control. 83 b steinbock “the case for physician assisted suicide: not (yet) proven” (2005) 31 j med ethics 235. 84 ibid. http://www.aucklandves.orcon.net.nz/intnews.htm raising our heads above the parapet? 44 patients feel considerable pain even while under general anaesthetic. 85 as kuhse points out,86 even if a dying patient is given terminal sedation, they may still have to live with “considerable pain and suffering” during their last days. therefore despite all the arguments in support of palliative care, it is clear that such pain-relief is not always the answer to everyone. a similar situation also arises with patients with advanced dementia. their inability to eat has been considered to be part of the dying process, and it has been debated whether to “postpone impending death with technology,” (a gastronomy tube which in itself can be painful) should be allowed in such circumstances.87 it has been argued that withdrawing nutrition from these patients does not contradict the principle of sanctity of life. 88 the present archbishop of canterbury stated that “there is no stage of human life and no level of human experience, that is intrinsically incapable of being lived through in some kind of trust and hope,”89 and though many would agree with his reverence, a major point has been overlooked. it is when hope is lost that patients can no longer tolerate pain and request to die. for those patients in the last weeks of their lives their “key concern is their quality of life.”90 although the courts have ruled to the contrary, it is suggested that a breach of article 3 echr might occur at times. 91 attitudes to legislation and beyond opponents claim that legalising assisted suicide would open the floodgates to involuntary euthanasia. however, according to world heath organisation statistics (2001) there is no correlation between the numbers of suicides in countries and the flexibility of laws on assisted suicides. this has been backed up by research in oregon, where law allowing pas has been recorded as being used “rarely.”92 in addition, the remmelink commission set up in the netherlands 1990 to investigate the area, found that 85 h kuhse “response to ronald m perkin and david b resnik: ‘the agony of trying to match sanctity of life and patient-centred medical care’” (2002) 28 j med ethics 270. 86 ibid. 87 above n 83. 88 ibid. this would only apply to those patients in the final stages of dementia, who no longer want or request nutrition or water, and for whom the process is unbearably painful. 89 hansard 12th may 2006 column 1196. 90 muriel r gillick “artificial nutrition and hydration in the patient with advanced dementia: is withholding treatment compatible with traditional judaism?” (2001) 27 j med ethics 12-15. 91 the courts did not agree with diana pretty’s argument that it was: above n 59. 92 m brazier medicine patients and the law (london: penguin, 3rd edn, 2003) p 460. the denning law journal 45 approximately nine thousand requests for physician-assisted suicide were received each year, but only a third of these were agreed to. fierce opposition stops at nothing to ensure that so-called ‘sanctity of life’ is revered, even when it is in the patients ‘best interests’ to reach the ‘sanctuary of death.’ to the patient “life appears less sacred when it has exceeded its natural span and its quality has been degraded.”93 although it is no longer ‘illegal’ to commit suicide, its social stigma remains. families often blame themselves for allowing such a death to occur, even if the suicide victim was beyond their help. how then are families supposed to cope with both moral and legal issues arising when a loved one who asks them to assist in their death? no matter how merciful it would be to assist in another’s death, section 2 of the suicide act 1961, stipulates that it is a crime to aid, abet, counsel or procure a suicide. therefore under current provisions in england and wales, anyone who helps another to commit suicide, even for the best of reasons, is liable to face prosecution, either by the instigation or consent of the director of public prosecution, with a potential penalty of 14 years imprisonment. this would be the case whether the death took place in the united kingdom or abroad. to date, over 90 families have journeyed from the uk to countries which allow assisted suicide, each family member unsure as to whether they would be prosecuted on their return or not. so far, although there have been investigations, there have yet to be any prosecutions, but there is no guarantee that a prosecution will not take place. this situation was unsatisfactory to debbie purdy, and the current lack of legal clarity was the motivation behind her recent court action.94 she wants her husband to travel with her to switzerland, and help her to die at a stage when she believed her life had become too unbearable for her to continue. however, frustrated by the lack of clear legal advice as to whether her husband would face prosecution on his return, mrs purdy was tried to ascertain such guidelines from the director of public prosecutions. her action was initially unsuccessful. the court of appeal, whilst sympathising strongly with mrs purdy and others in her position, made it perfectly clear in that any change in the law in regards to assisted suicide was a task for parliament not the courts. however, in their final judgment, the house of lords has now overturned earlier decisions. consequently, the director of public prosecutions has announced that he will produce interim guidance by the end of september. this will be followed by a full consultation before final guidance is issued in spring 2010. 93 hazel biggs “a feminist reflects on women’s experiences of death and dying.” in sally sheldon & michael thomson (eds) feminist perspectives on health care law (london: cavendish publishing ltd, 1998). 94 r (on the application of purdy) (appellant) v director of public prosecutions (respondent) [2009] ukhl 45. raising our heads above the parapet? 46 mrs purdy’s dilemma is whether she should end her life before she wants to, by travelling on her own to switzerland to die alone, while she is still able to do so unaided, so that she will not need physical support from her husband, lest he be prosecuted on his arrival home. she will be waiting the dpp’s guidance anxiously. where pas had taken place, according to the physician, life had been shortened by “a few hours or days only.” 95 in contrast to the number of hours ‘lost’ with the aid of a physician, the stark reality is that a number of britons (including reginald crew and anne turner) have been forced to take positive life-ending action, considerably earlier than ‘a few days’ and more poignantly, at a time well in advance of when they themselves really want to, just to ensure it can be achieved. how can it be that in our so-called liberated and morally aware society people are forced to either end their life before they wish to, or suffer to the very end of their journey? the current law on assisted suicide gives rise to much debate in terms of its inconsistencies regarding self-autonomy, medical ethics and compassion, with many wishing to see it changed. lord joffe’s patient (assisted dying) bill, aimed to: “enable a competent adult who is suffering unbearably as a result of a terminal or a serious and progressive physical illness to receive medical help to die at his own considered and persistent request; and to make provision for a person suffering from such a condition to receive pain relief medication.”96 there were mixed emotions when the bill was delayed in the house of lords. campaigners against the bill claimed victory with their scoop of 100,000 signatures against it. however, if one compares the number of signatories with the number of people who will die in the uk in any one year, it is a paltry number.97 despite a high percentage of the uk population apparently wishing for pas to be legalised, it is clear that it will prove extremely difficult to pass any such act without motivating the support of the country at large. however, “everyone seems to want to keep their head below the parapet.”98 this is 95 p van der maas, j van delden, l pijnenborg and c looman “euthanasia and other medical decisions concerning the end of life” (1991) 338 lancet 669 at 671. 96 hl bill 37. 97 in the region of 475,000, based on an average 9,500 per week www.statistics.gov.uk. 98 debbie purdy as reported by afua hirsch and audrey gillan “ask parliament, not courts, whether your husband can help you end your life” the guardian thursday 30th october 2008. the denning law journal 47 partly due to actions of the minority with a say, putting self-interest before social conscience. it has been noted that it is an unsound move for politicians to promote legislation in this area. this was highlighted in scotland in 2005, when jeremy purvis's final proposal for a scottish bill “to allow for a mentally capable, terminally ill adult the right to receive medical assistance to die” received only five supporters. it is thought that one reason for the lack of support was the impeding elections; mp’s are reluctant to support controversial bills when their parliamentary seat is at stake.99 this is a pandemic problem. whilst canvassing in 2008, it was noticeable how careful (the then) senator obama and senator clinton were in their comments when asked for their opinions on the oregon law allowing pas. whilst both applauded the innovative laws on oregon, as responding to the demands of the people, both were also careful not to say they supported the views! the subject of assisted suicide is a very emotive one and gives rise to impassioned debate for and against its legalisation. that the law should be changed to allow euthanasia in its widest terms is highly questionable. yet the patient (assisted dying) bill in principle would have benefited many people. it would have confirmed patient autonomy by ensuring that, providing full consent were given, the right to assisted death was safeguarded. it would have extended quality of life, by removing a need to commit suicide for fear of a lingering death. it would have relieved doctors of the medical dilemma as to what to do for the patients’ best interests, whilst conferring protection on them. finally, it would have ended the torment of families who currently are paralysed by the legal constraints in the uk today. as lord goff said: “it is of course well known that there are many responsible members of our society who believe that euthanasia should be made lawful; but that result could, i believe, only be achieved by legislation which expresses the democratic will that so fundamental a change should be made in our law, and can, if enacted, ensure that such legalised killing can only be carried out subject to appropriate supervision and control.”100 it is suggested that this subject is so sensitive that it should be removed from the control of a select few. taking all relevant factors into account, public debate is an essential prerequisite to any attempt at law reform on assisted dying. in this respect the most logical approach to this issue would be to hold a nationwide consultation on the issue leading to a referendum. 99 www.care “not killing: “scottish euthanasia bill fails” 12th december 2005 ‘scotland has a parliamentary election in 2007 and nobody wants to rock the boat…’ 100 hansard 12th may 2006, column 1185. raising our heads above the parapet? 48 this could question the nation on (i) the acceptability of assisted suicide in any form and (ii) the level/degree to which suicide should be assisted. society can, and does, change its opinions and values on a regular basis.101 thus even if a referendum were held and legislation enacted permitting assisted suicide, it would be advisable to hold regular reviews of any such active legislation, and perhaps build in an expiry date for reconsultation. a rolling referendum every five to ten years would appease the majority who apparently support the legislation on assisted dying. the legislation could be tightly monitored and, if rejected, which might well prove to be the case, then those in favour would know that further fresh efforts to establish a change in the law could be brought to bear, in the not–too-distant future. whatever the outcome is, it is clear that this area needs much more open debate from all levels of society, not just those groups who hold steadfast but extremist views on either side of the argument. this is essential to help and support the needs of those who are seeking relief today. in the words of debbie purdy, “everyone seems to want to keep their head below the parapet but this needs to be discussed.”102 perhaps now is the time to raise our heads and be countedafter all, at some stage in life, death comes to each and every one. 101 legalising abortions (abortion act 1967), and making marital rape a criminal offence (criminal justice act 1994) are two legislative measures demonstrating societal changes in attitudes. 102 above n 98. an introduction to death legal and philosophical attitudes to assisted suicide 1. legal issues 2. patient autonomy 3. doctor autonomy ending life: acts v omissions international approaches 1. north america 2. belgium & netherlands 3. active campaigns worldwide 4. switzerland evaluation of palliative care attitudes to legislation and beyond for the purposes of right to self-determination, how does one define people in context of kashmir 39 the denning law journal 2012 vol 24 pp 39-64 the libyan intervention: legitimacy and the challenges of the ‘responsibility to protect’ doctrine edward phillips 1 1. new dawn the potency of the phrase „the arab spring‟ remains undiminished by its over-use since a young tunisian man, mohamed bouazizi, set himself on fire on 18 december 2010. in much the same way as the domino effect of the fall of the berlin wall, references to the arab spring provide a short-hand description of the wave of public demonstrations and violent reprisals that have occurred, and continue to occur, across the entire middle east. the fallout of these events have also spread beyond the region; for instance, the coup d’etat in mali (21 march 2012) and even the protests attendant upon the presidential election of vladimir putin in russia have all been ascribed to this climatic event. crucially, the arab spring has also resulted in the adjustment and re-alignment of global politics and alliances. no better example of this is provided by the undignified scramble by us politicians on both sides of the political divide to sunder their long-standing political, economic and military support of the regime of egypt‟s murbarak. and, ultimately, it has required western powers to attempt reconciliation with political islam, or at the least, with the alleged „moderate‟ powers of the islamic brotherhood, who appear to have achieved their long-sought political ambitions through the ballot box. 2 to a large extent, therefore, the end of muammar qaddafi‟s tyranny and despotic rule in libya may be subsumed into the wider politics of the region. and yet, libya is different in one essential fact: the arab spring in libya was played out with direct foreign military intervention. 3 moreover, this was a 1 law school, university of greenwich. 2 this accommodation with moderate islam, of course, is neither unique nor radical. turkey‟s ruling party is exactly that: moderate and islamic, and there has been no hesitation in accepting turkey‟s place in global politics, its position as a crucial member of nato and, indeed, as a possible future member of the eu. 3 there are, of course, comparisons to be made with other military interventions in the middle-east, particularly iraq. for a further discussion, reference may be made to: the libyan intervention 40 military intervention which had received the tacit approval of the un security council. the defining difference is that the people of tunisia and egypt achieved their ambitions without this element of foreign, military, intervention. to put it in stark terms, there were no bombings of tunis or cairo by nato warships or airplanes. as far as libya was concerned, qaddafi‟s hold on power was so entrenched that the momentous events of the arab spring would not have had the effect it did if it were not for, ...a controversial military intervention that has been variously described as everything from a neo-imperial regime change to a humanitarian rescue mission. it moved libya‟s revolt and the entire arab spring into a new phase. 4 the tunisian and egyptian revolutions – and revolution is the appropriate term – were, in this sense, autochthonous; foreign intervention did not mediate the momentous political changes that occurred. 5 to what extent, therefore, was the nato operation in libya justified and justifiable? that this question is a crucial one, not just in terms of libya but in a wider context, is neatly encapsulated in the inertia of the un, no less in the face of events in syria and the intransigence of the assad regime but also in the saudi arabian intervention in bahrain. 6 2. libya: the jamahiriya qaddafi‟s brand of revolution in libya had long been a thorn in international politics. yet, it is necessary to set qaddafi in the context of ronald st john, “libya is not iraq: preemptive strikes, wmd and diplomacy” (2004) 53:3 middle east journal 386. 4 lin noueihed and alex warren the battle for the arab spring: revolution, counter-revolution and the making of new era (new haven, usa: yale university press 2012) p165. 5 the term „autochthonous‟, in its usage in constitutional law, refers to those constitutions of the „new‟ commonwealth states that were the product of negotiation, deliberation and proclamation of their independent legislative assemblies, rather than imposed upon them though the form of a „grant‟ from the foreign and commonwealth office, contained in the uk act of parliament that conferred independence. 6 further references may be made to lin noueihed and alex warren the battle for the arab spring: revolution, counter-revolution and the making of new era (new haven, usa: yale university press 2012). the denning law journal 41 libya‟s experiences of colonialism and exploitation. 7 it would not be exaggeration to state that the ebb and flow of „great power‟ politics has swirled over libya and its peoples since, at least the dawn of the modern era. the period following the end of italian colonial rule after the second world war was followed by even greater confusion, with the united kingdom, france, the united states and the ussr vying for primacy of their strategic interests. the matter received a resolution of sorts with the un general assembly resolution of 21 november 1949 which stipulated that libya should become independent as soon as possible, by 1 january 1952 at the latest. as pargeter puts it: libya was to be free at last. yet for all the happiness this news engendered, it was tainted slightly by the fact that independence was a direct result of manoeuvrings on the part of the big powers, rather than of a hard-earned liberation struggle. indeed, the libyans had been relegated to the very lowest rung of the decision-making ladder – as with so much in their historical experience, independence was something that had happened to them and in spite of them. 8 qaddafi‟s rise to power as well as his subsequent gesture politics from the proclamation of his green revolution 9 , to his support of the ira, to the shooting of wpc yvonne fletcher, no less than the lockerbie affaire 10 must be seen in this context. the numerous attempts to reign in the charismatic and troublesome libyan leader were merely met with even more defiance: the nation should realise and the west must understand that we are not being affected by the blockade, the boycott, the air embargo or anything else. we hope that there won‟t be any relations at all 7 a more detailed discussion of the these issues is to be found in the following: ali ahmida, forgotten voice: power and agency in colonial and postcolonial libya (abingdon: routledge, 2005); david blundy and andrew lycett qaddafi and the libyan revolution (london, weidenfeld and nicolson, 1987); dirk vandewalle a history of modern libya (new york: cambridge university press, 2006); alison pargeter libya: the rise and fall of qaddafi (new haven, usa: yale university press, 2012). 8 ibid, p 33. 9 the political ideology, if it may be termed as such, behind qaddafi‟s green book (tripoli: world centre for the study and research of the green book, 1984) was nothing other than a continuation of qaddafi‟s personality cult. 10 the events surrounding the bombing of a pan am flight over lockerbie on 21 december 1988 have been extensively rehearsed. see, for instance, pargeter, above. the libyan intervention 42 between us and the west, that none of their goods get here, that we won‟t buy anything from [them]. what matters is that they spare us their evil and harm, and that the sea is between them and us. good that we are rid of them as it were. 11 to this intoxicating mix must be added (with the benefit of hindsight) the bizarre scramble by western leaders to welcome colonel muammar qaddafi back into global politics in the ten-year period or so before the nato operations that terminated his rule. for london and washington, rehabilitating the libyan leader from malevolent pariah to cooperative autocrat involved a controversial rapprochement with a man they considered responsible for numerous acts of overseas terrorism. but it was also hailed as a triumph for years of patient diplomacy designed to engage, not overthrow, a regime that almost from its very creation had stirred up international trouble. 12 after saddam hussein‟s iraq, the taleban in afghanistan and the mullahs of iran, it seemed, mistakenly as events proved, that qaddafi (and his son, saif al-islam qaddafi) was a man with whom the west could do business. in addition, a factor that is crucial in understanding the events in libya, both during the qaddafi regime as well as post-qaddafi, is the tribal nature of libyan society. libya was not, and never has been, a one-nation state. what was true during the colonial period continued to be true after independence and during the qaddafi regime. to this extent, there is a certainly symmetry between libya and the other nations of the arab spring. it is possible to go further and consider this to be an emblematic facet of these nations, where a nexus of family-tribal-clan loyalties are prioritised above that towards the central state: „we follow the ways of our forefathers, those who kindled wars and were faithful to the ties of kinship‟. 13 this … expressed the very 11 speech by muammar qaddafi, libyan television, 21 september 1993, quoted in: alison pargeter libya: the rise and fall of qaddafi (new haven, usa: yale university press, 2012) p 157. 12 lin noueihed and alex warren the battle for the arab spring: revolution, counter-revolution and the making of new era (new haven, usa: yale university press, 2012) p 166. 13 abid ibn al-abras; see footnote below. the denning law journal 43 essence of an arab‟s identity. extended networks of relatives blurred seamlessly into tribe. 14 the fault lines in libya political society were, to a very large extent, submerged during the final months leading to the fall of the regime. nevertheless, these fault lines did not miraculously disappear: with the defeat of the common enemy, the long-seething racial, tribal and clan tensions that had festered for generations have emerged to threaten whatever the political resolution may be, post-democratic elections. to the powerful mix of opposing loyalties may be added two factors. first, the presence of abundant weapons has given the various warring factions a potency that would not otherwise have existed. there have been numerous instances of this seizure of power and the contempt of central government, particularly of the national transitional council, as in the arrest and detention of lawyers acting for the international criminal court and the refusal to hand over saif al-islam to the central authorities. 15 the proliferation of weapons among the general population and especially amongst the katiba brigades, 16 has been remarked on in the report of the committee of experts submitted to the security council in the aftermath of the nato intervention. 17 33. the distribution of arms to civilians and the appropriation of the content of weapons and ammunition storage sites by individuals and brigades resulted in the uncontrolled circulation of very large quantities of military materiel during the war. additional military materiel was also delivered during the conflict from abroad and there were apparently no accountability measures to follow the distribution of this materiel on the ground. 34. four months after the end of the conflict, a significant percentage of the civilian population is armed and the brigades control very large 14 tom holland in the shadow of the sword (london: little brown group, 2012) p 232. 15 the unpredictability of these small groups of ex-rebel fighters may be illustrated by the abduction of the president of the libyan olympic committee on the 15 july 2012 (the times, 17 july 2012). 16 katiba is the arabic term used in libya for the rebel brigades that fought the qaddafi regime. these units varied in size and level of allegiance. crucially, not all of the katiba have been disbanded and there is no realistic possibility of accounting for the stock of weapons possessed. 17 s/2012/163 (www.un.org/sc/committees/1970/). the libyan intervention 44 quantities of weapons and ammunition stocks. the lack of a unified command over the katibas3 and the absence of a national force to oversee the arms stocks represent considerable challenges in terms of post-conflict weapons management and control. 37. finally, it is clear that a number of people seized the opportunity to make a profit by removing weapons from stores opened up during the conflict and selling them. since the end of the conflict, the panel has been made aware of information which indicates that individuals in libya have made contact with foreign brokers in an attempt to sell military materiel. second, as in saddam hussein‟s iraq, islamic extremists who had been suppressed (through imprisonment, murder and torture) by qaddafi were now free to act. it is a fact that in many essential respects, the only unifying feature lies in the adherence to a common religion. it is noteworthy, after all, that the demonstrators against despotism, cronyism and corruption throughout the region consciously echo the qu‟aranic injunction: account is demanded of those who oppress people and commit transgression on earth, unjustly. to them there is painful torment. 18 as far as this latter point is concerned, those who might be tempted to point to the resurgence of the islamists in iraq, egypt and tunisia as a benchmark to measure the legitimacy of intervention, may be heartened by the fact that events so far indicate that the role of religion may not be the defining factor of post-conflict libya. despite the activities of islamists groups such as al watan (led by abdul hakim bilhaj, the former jihadist fighter who is now suing the british government for complicity in rendition and torture) 19 it appears that the islamist parties have made little headway in the country‟s first democratic elections. 20 18 qur’an:42.42 – 3. 19 richard norton-taylor and ian cobain, “libyan dissidents sue mi6 officer over abduction and torture claims” the guardian, 31 july 2012: www.guardian.co.uk/world/2012/jan/31/libyan-dissidents-sue-mi6. 20 although the new prime minister, mohammed magarief, is described as an islamist (albeit a „moderate‟) libya‟s first free and fair elections (7 july 2012) has resulted in the dominance of the broadly secular national forces alliance: www.bbc.co.uk/news/world-africa-19204111. the denning law journal 45 3. security council action events in libya by 2010 had begun to cause concern. it was clear that the re-integration of libya into the political order was a failure. internally, too, there began to be an intensification of the repressive tendencies that had always sustained the regime. matters came to be focussed on security council resolution 1970 (2011), whereby the security council expressed grave concern over the situation in libya including the violence and use of force against civilians and the gross and systematic violation of human rights. the resolution expressed grave concerns regarding, inter alia, the use of force against civilians and deplored, …the gross and systematic violations of human rights, including the repression of peaceful demonstrators, expressing deep concern at the deaths of civilians, and rejecting unequivocally the incitement to hostility and violence against the civilian population made from the highest level of the libyan government. 21 within this context, the security council imposed specific measures on libya including the arms embargo, which related to arms and related materiel of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned, in addition to the provision of armed mercenary personnel. the security council also imposed an asset freeze which related to all funds, financial assets and economic resources which were owned, or controlled directly or indirectly, by the designated individuals or entities listed in the resolution. further, the council decided that the asset freeze and travel ban should apply to the individuals and entities designated by the committee involved in or complicit in ordering, controlling or otherwise directing the commission of serious human rights abuses against persons in libya. this was rapidly followed by security council resolution 1973 (2011) whereby the council strengthened the enforcement of the arms embargo and expanded the scope of the asset freeze to include the exercise of vigilance when doing business with libyan entities, if states had information that provided reasonable grounds to believe that such business could contribute to violence and use of force against civilians. 22 additional individuals subject to 21 s/res/1970 (26 february 2011). 22 s/res/1973 (17 march 2011); the resolution was adopted with 10 votes in favour, none against and 5 abstentions. voting in favour: britain, france, united states (sc permanent members) and bosnia-herzegovina, colombia, gabon, lebanon, nigeria, the libyan intervention 46 the asset freeze and the travel ban were listed in the resolution. resolution 1973 (2011) also included the authorization to protect civilians and civilian populated areas under threat of attack in libya and authorised un member states, acting alone or through regional organisations to “take all necessary measures to protect civilians under threat of attack.” crucially, resolution 1973 (in paragraphs 6 – 12) imposed a no-fly zone over the airspace of the libyan arab jamahiriya. as noted below, serious problems arise concerning the legitimacy of resolution 1973/2011. it would be too simplistic to argue that as the security council had authorised intervention, ergo, military intervention was legitimate. the assumption must be that military intervention was authorised under chapter vii of the un charter (“action with respect to threats to the peace, breaches of the peace and acts of aggression”). what then of the longestablished and long-cherished doctrine of non-intervention, explicitly and implicitly recognised in the un charter, particularly in article 2(4), especially as this entailed external support for insurgent forces? the judgment of the icj in the nicaragua case is apposite here. 23 articles 2(4) of the un charter (1945) contain an explicit principle against foreign intervention in relation to “territorial integrity or political independence” while article 2(7) extends the principle against nonintervention to “matters which are essentially within the domestic jurisdiction.” it is true that article 2(7) goes on to enter the caveat that “this principle shall not prejudice the application of enforcement measures under chapter vii of the charter. on this basis it can be argued that sc resolutions 1970 and 1973 were justified as „enforcement measures‟. it must be noted, however, that chapter vii enforcement action requires the explicit determination by the security council of “the existence of any threat to the peace, breach of the peace or act of aggression” (under article 39). sc resolution 1973, however, does not spell out in what manner the events in libya came within a threat to the peace, a breach of the peace or acts of aggression. the issues relating to intervention in purely internal disputes (even when amounting to civil war) are both complex and controversial. it is submitted that in the light of general assembly resolutions such as the declaration of principles of international law concerning friendly portugal and south africa (non-permanent members). abstentions: russia and china (sc permanent members) germany, brazil and india (sc non-permanent members). 23 nicaragua (merits) nicaragua v united states icj reports 1986, p14. a detailed analysis of the decision of the icj is not possible here but reference may be made to para 199 – 211 of the report. a brief summary of the impact of the decision may also be found in david harris cases and materials on international law (london: sweet and maxwell, 7 th ed, 2010) pp 738 – 742. the denning law journal 47 relations and co-operation among states in accordance with the charter of the un 24 that the general tenor of opinion has been that internal disputes are not grounds for intervention. 25 in this context, the nicaragua v us case is instructive. the icj, indeed, went even further in affirming that this constituted customary international law. 26 it has been argued that there is newly evolved principle article 2(4) would permit intervention on humanitarian grounds. these issues were explored in relation to nato action in kosovo in 1999, 27 but can hardly be said to have been completely resolved, bearing in mind the clear objections of russia and china as well as the non-aligned grouping of states. 28 gray has commented that that “the uk more than any other state has developed a doctrine of humanitarian intervention as an autonomous institution.” 29 in developing her objections on this issue, gray goes on to state: those who support a doctrine of humanitarian intervention often rely on earlier, pre-iraq practice. … but in these episodes the states using force did not actually invoke a doctrine of humanitarian intervention; they preferred to reply on the better established right to self-defence. several states said that violations of human rights could not justify the use of force. now there is an attempt to re-write history in order to try and justify the action in kosovo. this requires that we ignore what the states in question actually said and therefore seems inconsistent with the approach of the icj in the nicaragua case. the court in considering whether a new doctrine of forcible intervention to help opposition forces to overthrow the government had emerged through state practice put great stress on the fact that neither the usa itself, nor other states, had claimed such a right. 30 it is submitted that the failure of the security council in resolution 1973 to make explicit the basis for the intervention impugns both the initial 24 ga resolution 2625 (xxv) 24 october 1970. 25 it is conceded that an exception may require to be drawn in relation to acts of terrorism. 26 nicaragua v united states (merits) (1986) icj reports, p14, paras 202 – 209. 27 legality of use of force (yugoslavia v belgium) provisional measures, order of 2 june 1999; icj reports (1999) p124. 28 1999 unyb 332. 29 christine gray “the use of force and the international legal order” in malcolm evans (ed) international law (oxford: oup, 2 nd edn, 2006) p 595. 30 ibid. the libyan intervention 48 unilateral action by france 31 as well as the subsequent nato operation. it might even be conceded that a distinction needs to be drawn between military intervention (in this case the imposition of the no-fly zone) for humanitarian purposes and illegitimate interference in domestic affairs; it may be a line in the sand, but it is a line still and it is, therefore incumbent that the justification be made explicit. chapter vii, moreover, contains a long list of the pre-requisites and conditions attendant upon the exercise of this power. in this regard, it is submitted that the pre-requisites required by chapter vii of the un charter did not exist or were not put in place. the first point to be raised relates to article 39 of the un charter. this requires that the security council should make a prior determination of „the existence of any threat to the peace, breach of the peace or act of aggression‟. it is difficult to see how the events in libya, brutal though qaddafi‟s repression of his own people might be, constituted such a threat; at this point in time qaddafi was not a threat to the global order (though he may have been in the past, and might conceivable be in the future). while it is true that in rwanda it was an internal armed conflict, not an external threat, which triggered action under article 39, the effective trigger was genocide and the impact of the internal struggle on neighbouring states. second, article 41, although not mandatory, recommends a consideration of „measures not involving the use of armed force.‟ it is submitted that the full range of options listed in article 41 were not effectively considered. third, no attempt was made by the security council to comply with the requirements of articles 46 and 47, in relation to the establishment of a military staff committee – an essential pre-requisite of scrutiny and accountability, especially in relation to the military rules of engagement. it is submitted that the surrender of this function to nato, while it was pragmatic and ultimately successful, was not just a dereliction of legal duty but also unlawful under the principles of international law. it is conceded that neither articles 46 nor 47 have played a dominant role in recent instances of security council interventions. nonetheless, the continued role of the military staff committee has been continually re-affirmed. rather than being a dead-letter, the military staff committee has met regularly and there is no evidence that it is not prepared to carry out the functions assigned to it under article 47. this is made clear in cases 18 21 cited in the security council repertoire. 32 it should be further noted that in the cases cited, the russian representative took 31 libya: french plane fires on military vehicle, bbc on-line news, 19 th march 2011: www.bbc.co.uk. 32 “relations with other united nations organs”: www.un.org/en/sc/reportoire/ (pages 250 – 252). the denning law journal 49 the opportunity to re-iterate the role of the military staff committee. 33 at the same time, in case 19, the representative for china, at the security council‟s 4223 rd meeting called for “the full use of the capacity of the military staff committee as an important source for military expertise both for preparing for the possible deployment of an operation and for wrapping one up”. 34 it is in this context i.e. the attempt to locate intervention on a wideranging concept of humanitarianism, that it is necessary to remember that state practice has been generally hostile. the early stages of the conflict in rwanda offer an example of this, an attitude that also appeared to be shared by high officials at the un. as michael barnett notes: there was a growing belief at the un that its survival and the effectiveness of peacekeeping depended on honouring the principles of consent, neutrality and impartiality, which fed directly into a policy of non-use of force, even in the face of civilian killings. 35 barnett also notes that the then secretary-general, boutros-ghali, as well as his successor, kofi annan were equally reluctant and muzzled their officials who sought to advocate a contrary view. 36 it is clear that this had long been the position of the influential group of 77. for instance, the ministerial declaration of foreign ministers of the group of 77 (representing the opinion of 132 un member states), meeting on 24 september 1999 (3 months after the end of the nato bombing campaign in yugoslavia) had concluded: the ministers stressed the need to maintain clear distinctions between humanitarian assistance and other activities of the united nations. they rejected the so-called right of humanitarian intervention, which has no basis in the un charter or international law. 37 33 ibid; s/pv.4220, p9 (case 18);s/pv.4257 (resumption 1, p13 (case 20); s/pv.4343, p 6 (case 21). 34 ibid; s/pv.4223, p15 (case 19). 35 michael barnett empire of humanity: a history of humanitarianism (new york: cornell university press, 2011) p 181. 36 ibid, p 184. 37 cited in ian brownlie principles of public international law (oxford: oxford university press, 7 th edn, 2008) p 744. this also appeared to be position taken subsequently by the united states, in the early stages of the conflict in rwanda, as documented by samantha power a problem from hell: america in an age of genocide (new york: norton, 2002). the libyan intervention 50 in the case of libya, it should be remembered that at the point when it had already become abundantly clear that qaddafi was engaged in the brutal and bloody assault on libyan protesters, the initial us position was of reluctance and even down-right hostility to the suggestion of intervention. the us defence secretary, robert gates dismissed the notion, out of hand, that there should be even the imposition of a no-fly zone. 38 4. r2p and the special status of human rights law for present purposes, the following definition of humanitarian intervention may suffice: it is “the treat or use of force across state borders by a state (or group of states) aimed at preventing or ending widespread and grave violations of the fundamental human rights of individuals other than its own citizens, without the permission of the state within whose territory force is applied”. 39 to put it simply, if a state cannot, or refuses to, accord to its citizens their fundamental and universal human rights, then “the duty to safeguard these rights reverts to the international community. 40 it is implicit in arguments of this nature (not shared globally) that human rights law must be acquired a primacy that trumps all other concerns of international law and politics. the doctrine of humanitarian intervention has had a chequered history, based upon suspicion of big power politics, as well as the inevitable fact that „humanitarian‟ intervention too often results in further counter-productive violence and bloodshed. michael barnett expresses it thus: …the history of humanitarianism is littered with violent actions in the name of humanity. … today humanitarian intervention valorizes military force to protect the “people”, intimating that such violence is “responsible” and that failure to use violence to protect the weak is an “irresponsible” or immoral act that creates something close to a moral equivalence between perpetrator and the bystander. my point is not to 38 statement of robert gates, us defence secretary, “no-fly zone for libya would require attack” www.reuters.com/article/2011/03/02/us-libya-usa-pentagon-idust. 39 j l holzgrefe, “the humanitarian intervention debate”, in j l holzgrefe and r.o keohane (ed) humanitarian intervention: ethical, legal and political dilemmas (cambridge: cambridge university press, 2003) p 18. 40 ibid, p 42. the denning law journal 51 reproach humanitarian intervention – i find it impossible to contemplate the killings in rwanda, darfur, and the congo without demanding the deployment of all necessary means – but rather to point out that doctrines of humanity have always demanded their share of violence. given humanitarianism‟s history, there is no reason to bet on a different future. 41 even in those, albeit exceptional situations where it can be conceded that humanitarian intervention may be necessary and even justified, 42 a further central issue of concern remains: is humanitarian intervention ever possible without regime change? and if the ultimate primacy of purpose is, indeed, regime change, how can this be squared with the provisions of the un charter and with the fundamental realities of global politics? it is submitted that it was the concerns expressed regarding the legality of humanitarian intervention that has led to its basic substance being re-cast as the „responsibility to protect doctrine‟ (reduced to r2p for the age of twitter and text-speak). the un general assembly adopted r2p in an unanimous resolution (unga resolution 60/1, 2005) as a part of the then un secretary-general kofi anan‟s reform agenda, in particular to manoeuvre around the obstacle of inviolable state sovereignty: … if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a rwanda, to a srebrenica – to gross and systematic violations of human rights that affect every precept of our common humanity. 43 this was echoed by the work of the international commission on intervention and state sovereignty (icss) which has advocated “a transition from a culture of sovereign impunity to a culture of national and international accountability.” to put it in other terms, r2p necessitated a move from „sovereignty as control‟ to „sovereignty as responsibility‟. the „pillars‟ of r2p may be set out as follows: 41 michael barnett empire of humanity: a history of humanitarianism (new york: cornell university press, 2011) p236. 42 see, for instance, steven haines “humanitarian intervention: genocide, crimes against humanity and the use of force” in g kassimeris and j buckley (eds) ashgate research companion to modern warefare (farnham: ashgate,2010) p 307. 43 millennium report, un ga 2000. the libyan intervention 52 1. a state has responsibility to protect its population from mass atrocities. 2. the international community has a responsibility to assist the state if it is unable to protect its population on its own. 3. if a state fails to protect its citizens from mass atrocities and peaceful measures have failed, the international community has the responsibility to intervene through coercive measures. these pillars, therefore, have the unavoidable corollary that military intervention must remain the last resort. prior to libya, the intervention in the former yugoslavia, had been the model held up for praise. the nato bombing of yugoslavia, commencing on 24 march 1999 was based on the claim that it was necessitated by humanitarian objectives. needless to say, there is no common agreement among international lawyers. 44 ian brownlie, for instance, is of the clear view that, … the authenticity of the subsequent claims that the action had humanitarian motives is substantially undermined by the fact that, beginning in october 1998, the threats of force were linked directly to a collateral political agenda, that is, the acceptance by yugoslavia of various political „demands concerning the status of kosovo, these „demands‟ being presented under threat of a massive bombing campaign. 45 it is possible to re-cast the same argument in the context of libya: intervention in libya, rather than being motivated by a humanitarian impulse was instead pre-determined by a desire to remove qaddafi. to put it bluntly: this was regime change, pure and simple. just as in kosovo, military intervention may have been morally justified, but was it legally justified? anne-marie slaughter (former head of policy planning, us state department) put the case for intervention succinctly, drawing on the failure to prevention genocide in rwanda and the perceived success of intervention in kosovo: “the international community cannot stand by and watch the massacre of libyan protesters. in rwanda we watched. in kosovo we 44 there is a considerable literature, in international law and politics, as well as in the field of ethics and morality, on this issue. it is not possible to details these here. however, a useful starting point would be the collection of essays by holzgrefe and keohane, ibid, as well as in the standard textbooks of public international law. 45 ian brownlie principles of public international law (oxford: oxford university press, 7 th edn, 2008) p 742 – 743. the denning law journal 53 acted.” 46 these sentiments were echoed by hilary clinton, us secretary of state: “we learned a lot in the 1990s. we saw what happened in rwanda.” 47 this represents a noticeable theme, that of atonement for the failure to intervene in rwanda, in the debates surrounding the libyan intervention. as michael barnett puts it, rwanda haunts the international community: …it is because “our” complicity is undeniable. it was not only the killing that was shocking. so, too, was the west‟s apparent indifference. there certainly have been many other moments when the west has chosen to ignore mass killings, but never before when there were 2,5000 un troops on the ground. … in other words, the west had blood on its hands. choosing not to act when it had knowledge and opportunity to stop a genocide, according to many, was tantamount to contributing to genocide itself. 48 the responsibility to protect (r2p) doctrine, in the way it played out in libya was in many ways unique and this is an essential factor to weigh in the balance of its legitimacy. for a start, r2p in libya took place in the context of the wider events in the arab world, where it appeared that a „berlin wall – domino effect‟ would leave the adherents of humanitarian intervention, and the west generally, floundering. “libya presented an opportunity to join a battle that appeared to pit popular will against evil regime, and to emerge on the right side of history.” 49 crucially, it offered an opportunity to ameliorate the downright hostility in the arab world consequent upon the war in iraq: …western intervention so soon after iraq would require arab support. that too was on the table, but again was driven by more than just humanitarian considerations. it is hard to think of a case other than libya, and a moment in time other than march 2011, where so many arab countries would have either supported, or abstained from objecting to, western-led action in a muslim and arab country. 50 46 www.thecable.foreignpolicy.com/posts/2011/02/24anne_marie-slaughter. 47 www.blogs.state.gov/index.php/site/entry/clinton_gates_libya. 48 michael barnett empire of humanity: a history of humanitarianism (new york: cornell university press, 2011) pp 183 – 184. 49 lin noueihed and alex warren the battle for the arab spring: revolution, counter-revolution and the making of new era (new haven, usa: yale university press, 2012) p181. 50 ibid, p181. the libyan intervention 54 and what was true of the arab world was true also of the two major obstacles to intervention on the security council: china and russia. unlike the worsening situation in syria, libya no longer had friends it could count on when the security council was seized of the matter; qaddafi had effectively burnt his bridges. in the final analysis, what are we to make of r2p intervention? it may be that it is the very nature of „r2p‟ terminology itself that stands as an obstacle to its proper evaluation. it also begs the question as to whether r2p is anything other than „humanitarianism‟, in the sense that earlier generations of political scientists and international lawyers would have used that term. it is, of course, true that humanitarianism (especially in its oft-cited guise of liberal humanitarianism) has become too-much freighted with unnecessary baggage. 51 nonetheless, it is worth reiterating that the critical change has been the paradigm shift from a „right‟ to intervene (based on self-justifying notions of „western‟ superiority carried over from a colonialist mind-set) towards a focus on the „duty‟ to intervene. the latter finding expression from a fundamental shift towards an acknowledgement of the special place of human rights law in the global legal order. in the context of global politics in the 21 st century, the fall of tripoli was “the first unambiguous military enforcement of the responsibility to protect norm; qaddafi‟s utter defeat seemingly putting new wind in the sails of humanitarian intervention.” 52 this begs any number of questions; the most important is the overweening claim that r2p represent a new norm of international law. it is also worth noting the high causality rate. as always, accurate figures are impossible to verify. one source indicates that somewhere between 30,000 and 50,000 libyans had been killed six months after r2p intervention was launched and that, measured as a percentage of libya‟s population, and in that time period, this was a bloodier death toll than iraq. 53 51 these issues are further discussed in: michael barnett, empire of humanity: a history of humanitarianism (ithaca and london: cornell university press, 2011) p 230. 52 stewart patrick, 2011, ex-us state department. 53 lin noueihed and alex warren the battle for the arab spring: revolution, counter-revolution and the making of new era (new haven, usa: yale university press, 2012) p 185. the denning law journal 55 5. north atlantic treaty organisation (nato)54 nato‟s military intervention in libya has been trumpeted as a great success, both for nato itself as well as for global peace and security: nato's operation in libya has rightly been hailed as a model intervention. the alliance responded rapidly to a deteriorating situation that threatened hundreds of thousands of civilians rebelling against an oppressive regime. it succeeded in protecting those civilians and, ultimately, in providing the time and space necessary for local forces to overthrow muammar al-qaddafi. and it did so by involving partners in the region and sharing the burden among the alliance's members. 55 nonetheless, while there may be sufficient justification in lauding the operation from the point of view of global political security, serious questions remain in the sphere of international law, particularly on the issue of whether the operation moved beyond „protective‟ to become „active‟. there is documented evidence of western special forces engaged in operational military activity. 56 nato (founded in 1949) has moved far beyond its original role to oppose and deter the power of the former ussr (its counterpart in eastern europe, the warsaw pact, was founded in 1955 and disbanded in 1991). the active expansion of nato away from its original aims is illustrated in the fact that the first actual use of force by nato was in bosnia in 1994, followed by kosovo in 1999. a key development lies in the procedures designed for „dual control‟. in bosnia, for instance, these dual arrangements gave the un control over nato‟s actions. similarly, in afghanistan, the international security assistance forces (isaf) operates under nato leadership despite the fact that approximately 18 non-nato states (including australia, new zealand and jordan) contribute armed forces to isaf. 54 it is not possible, at this stage to provide a detailed account of the role of nato in libya. a brief overview may, however be obtained in, joshua goldstein and jon pevehouse, international relations (london, pearson, 10 th edn, 2012). 55 ivo daalder and james stavridis, “nato‟s victory in libya: the right way to run an intervention (foreign affairs; www.foreignaffairs.com/articles) march / april 2012. 56 the guardian, 30 may 2011, “al-jazeera footage captures western troops on the ground.” the libyan intervention 56 the nato military intervention in libya (code-named „operation unified protector‟) needs to be seen in the context of this evolution of nato‟s role, in particular, its relationship with the un and any mandate it might receive from the security council. 57 nato‟s seven-month intervention in libya began on 31 march 2011 with taking control of all military operations for libya under resolutions 1970(2011) and 1973 (2011). it should be noted, however, that nato only took over formal oversight of the operations after the united states, the uk and france had already initiated a no-fly zone and an arms embargo. the operations ended on 31 october 2011. in addition to its active military involvement, nato operation unified protector supported the implementation of the arms embargo and the enforcement of the no-fly zone through the verification of shipping activities both within and outside of libyan territorial waters. there are a number of issues that need debate. the first relates to the legitimacy of any security council delegation to nato. second, nato‟s mandate was for an air presence over libya and off-shore naval action. this did not, either explicitly or implicitly, authorise an extension to ground troops. third, it was clear that nato‟s operations morphed from protection of civilians to direct, military assistance to a number of armed „rebel‟ groups. the latter would be considered as combatants under international law concerns scrutiny and accountability; it is clear that this was not a matter that was either debated or even considered by the security council. fourth, there are real concerns regarding the lack of oversight, in terms of the command structure, exercised by the security council over nato. this leads on to the fifth issue, of scrutiny and accountability. civilian casualties (over 1,100 deaths and 4,500 wounded) are directly attributed to the nato action and there has been an acknowledgement of weapons systems failures and accidental killing of rebels. none of these issues has been sufficiently considered or clarified. the command structure in nato’s libyan operation the u.s. permanent representative to nato ivo h. daalder and top nato commander admiral james stavridis trumpeted the libya operation as "a model of intervention." 58 they argue that the mission protected thousands of lives, minimized collateral damage, and enabled the overthrow of one of the world's most oppressive regimes and without a single allied casualty: 57 further reference may be made to: paul belkin report: nato’s chicago summit (congressional research services) (www.crs.gov; r42529) 14 may 2012. 58 www.foreignaffairs.com/articles/137073/ivo-h-daalder-and-james-g-stavridis/natosvictory-in-libya. the denning law journal 57 "when a group of countries wants to launch a joint intervention as a coalition-which confers political legitimacy--only nato can provide the common command structure and capabilities necessary." 59 these sentiments, however, disguise the initial lack of coherence and a clear vision of the military intervention. the lack of clarity with regard to the early stages of the operation cannot be better illustrated by the fact that the major participants could not even agree on a codename for the operation: the us, french and uk. the unprecedented, three-pronged command is reflected in the different names for the operation: the french called it harmattan (the name of a hot wind that blows over the sahara); in britain, it was operation ellamy; and in the us, it was odyssey dawn. what was clear, however, was that, even within the ranks of nato allies, there was a measure of opposition to nato control. it was reported that french president nicolas sarkozy initially opposed not just the proposal that nato would take control but even the very involvement of nato, on the grounds that this would send the wrong message to arab nations. similarly, turkey, angered by the fact that the french president had failed to invite it to attend a crucial summit meeting, had refused to give carte blanche to the nato imposition of a no-fly zone over libya. 60 western diplomats were reported as saying that sarkozy angered britain and the us by announcing french planes were already in the air and ready to attack libya before many of his allies had even decided on military action, and before informing his partners. 61 legitimacy of the nato involvement what criteria are we to use when adjudicating on the crucial issue raised here: was the nato intervention „legitimate‟? if the only criterion was whether it had received the approval of the un, though the security council, then the question is easily answered. this, however, is to set the standard too low. in post-conflict iraq, the much-trumpeted test was that elections had taken place. this criterion is similarly beset with difficulty. the holding of elections says nothing about corruption, the deadening hold of tribal and clan loyalties or of the protection of civil liberties (especially the protection of the rights of women and of religious and racial minorities). in the west, too, there is the added fear that the parties that win these elections, primarily the muslim 59 ibid. 60 kim willscher, “sarkozy opposes nato taking control of libya operation: dissent from germany, turkey and norway leaves question marks over command structure” (www.guardian.co.uk; 22 march 2011). 61 ibid. the libyan intervention 58 brotherhood may not form governments much to liking of western chancelleries. it is also clear that dissenting voices are making themselves heard on the „blogosphere‟ and internet. youtube video clips publicise the fatalities caused by the military intervention in particularly gruesome detail 62 while radical and alternative voices refer to: “the u.s./nato conquest of libya [as] another step in a new scramble for africa, this time with the u.s. rather than the european powers in the lead”. 63 these detractors may, in the west, represent the views of a minority but there is the very real possibility that these views exert an appeal in those parts of the middle-east pre-disposed to view such interventions with suspicion and dread. these are, ultimately, markers for any future intervention which the international legal order cannot afford to ignore. non-compliance there are real concerns regarding compliance with the relevant resolutions, and with the provisions of the un charter with regard to the provision of arms and munitions to rebel forces and, in particular, to the use of ground forces by both nato as well as non-nato forces. it appears, for instance, that that in a clear breach of the sc resolutions, french forces had airlifted weapons to insurgents while qatari troops had been involved in training rebel troops as well as assisted in direct fighting. 64 a useful indicator lies in the report of the committee of experts (see below) set up to scrutinise operations under the security council resolutions and to consider issues of non-compliance. 6. committee of experts one facet of security council resolution 1970 (2011) deserves greater attention and scrutiny. paragraph 24 of the resolution specifically called for the creation of a committee of experts to oversee the relevant sanctions measures. the mandate of the committee of experts was subsequently expanded by resolution 1973. the tasks of the committee were set out in paragraph 24 as follows: 62 www.youtube.com/yayyisse. 63 liberation: newspaper of the party for socialism and liberation (www.pslweb.org/liberationnews). 64 lin noueihed and alex warren the battle for the arab spring: revolution, counter-revolution and the making of new era (new haven, usa: yale university press, 2012) p 185. the denning law journal 59 24. requests the secretary-general to create for an initial period of one year, in consultation with the committee, a group of up to eight experts ("panel of experts"), under the direction of the committee to carry out the following tasks: (a) assist the committee in carrying out its mandate as specified in paragraph 24 of resolution 1970 (2011) and this resolution; (b) gather, examine and analyse information from states, relevant united nations bodies, regional organisations and other interested parties regarding the implementation of the measures decided in resolution 1970 (2011) and this resolution, in particular incidents of non-compliance; (c) make recommendations on actions the council, or the committee or state, may consider to improve implementation of the relevant measures; (d) provide to the council an interim report on its work no later than 90 days after the panel's appointment, and a final report to the council no later than 30 days prior to the termination of its mandate with its findings and recommendations; the committee presented its report to the secretary general on17 february 2012. 65 while it is not possible at this stage to deal with the intricate detail of the report, some of its main findings may profitably be set out. the important point to be made was that the report makes it clear that nato-led forces, and others, had directly transferred military related materiel to the anti-qaddafi rebels: during the panel‟s visits to benghazi in july 2011, libyan opposition military sources, as well as international observers, explained to the panel the difficulties that revolutionary forces had been facing in terms of military combat: the lack of weapons and ammunition, the lack of organization and the difficulty of communicating across a single and between the different fronts of the conflict, as well as the lack of experience of the majority of civilians who took up arms against the qadhafi [sic] forces. while the opposition gained more experience and organized itself better with time, and seized increasing numbers of weapons from qadhafi‟s bunkers and forces, libyan sources also explained that foreign military support, including deliveries of military materiel, had been crucial. 66 65 s/2012/163 (www.un.org/sc/committees/1970/). 66 ibid, para 71. the libyan intervention 60 it is submitted that the actions of the british, the french, the italians and the united states in supplying military materiel as well as military advice and personnel to the rebels, went beyond the letter no less than the spirit of the security council resolutions. 67 moreover, in a foretaste of what was to come, supplies were also made to the national transitional council, thus creating a dynamic of irreconcilable tension between the ntc and the ad hoc rebel groups. moreover, this extended to military and strategic advice and secondment of military advisers. this was true of all nato allies, particularly of the united kingdom, as the report makes clear: 83. in a letter dated 26 april 2011 (s/2011/269), the united kingdom notified the secretary-general of the united kingdom‟s intention to supply personal protective equipment to the national transitional council as well as the provision of a small team of military advisers to mentor and advise the national transitional council headquarters on how it might organize its internal structures, prioritize its resources and improve communications. on 25 october 2011, the united kingdom notified the committee in accordance with paragraph 13 of security council resolution 2009 (2011) of the united kingdom‟s intention to provide a military assistance team to the libyan authorities for the purposes of providing operational assistance, training and mentoring on security issues, including reform of the armed services, counterterrorism and counter-insurgency. 68 the direct military involvement also came from the united arab emirates, particularly qatar and saudi arabia. 69 it is not any wonder that some members of the security council, primarily russia and china, have come to regret the fact that they did not exercise their power of veto, a crucial factor with regard to their reluctance to approve security council action in syria. 7. wider implications of the libya intervention there cannot be any doubt that the massive proliferation of weapons and ammunition in the libya intervention has seeped into neighbouring states, 67 ibid. the committee of expert‟s findings on this point are set out in para 76 – 78 (france); para 79 – 81 (italy); para 82 – 84 (united kingdom); and para 85 (united states). 68 ibid. 69 ibid, para 86. the denning law journal 61 particularly mali, niger, chad and mauretania. in addition, the exodus of return of migrants from libya, some of them mercenaries formerly employed by the regime has fuelled instability, criminality and political upheaval with potentially far-reaching consequences. as the security council‟s committee of experts has reported: while it is difficult to assess the precise impact of the libyan crisis on these areas, the fact-finding missions conducted by the panel in the region indicate that armed insecurity in neighbouring countries such as northern mali and northern niger has risen recently, with increased levels of weapons trafficking, armed robberies, terrorist activity and the resumption of insurgent movements. the panel believes that the proliferation of weapons originating from libya is exacerbating the already precarious security situation in certain parts of the region and that careful monitoring and enforcement of the arms embargo are therefore critical. 70 the committee further reports: the fragile infrastructure of these states has been severely challenged in the peripheries by the mixture of large numbers of returnees, loss of remittances, weapons influxes, and the withdrawal of international aid, itself a result of increased insecurity. as a result, pre-existing conflicts have resurged, new armed opposition groups have emerged, and greater space for terrorist organizations and international criminal networks has opened. 71 on the other hand, and in the interest of balance, the removal of qaddafi has also had the beneficial effect of removing a destabilizing force in the wider region. as a specific instance, the committee of experts reported that the sudan, …expressed relief that a long-term sponsor of instability in its country was removed and predicted that peace-making efforts in darfur would improve as a result…. and arms proliferation, while worrying, was 70 s/2012/163 (www.un.org/sc/committees/1970/), from the summary of the report, p 6. 71 ibid, para 29. the libyan intervention 62 offset by the removal of libya as a long-term future sponsor of armed opposition in the sudan. 72 on many levels, libya represents a success of interventionist global policy: “in theory, libya has achieved the most far-reaching change of any country in the arab spring.” 73 perhaps the ultimate achievement of the intervention in libya is that it has crafted an interpretation of the responsibility to protect doctrine that will serve as a marker for the future, despite all the complexity and ambiguity that the doctrine carries with it. it may be that the critics of r2p are right: the libya intervention was nothing more than a line drawn on shifting sands; but it is a line, nonetheless. significantly, the voluminous discussion of the legitimacy of the intervention in libya cannot, and should not, detract attention from the democracy-affirming nature of the events of the arab spring and its accompanying grant of a new dignity to the peoples of this region. perhaps the first attempt to „audit‟ issues of good governance in the arab world came in the form of the 2002 arab development report (under the aegis of the united nations). 74 the report outlined three major „deficits‟ that operated to handicap development and progress. the first was the freedom deficit; the second, the women‟s empowerment deficit; and the third was the knowledge deficit. it is submitted that amongst the details of the academic and political critique, the legitimacy of the libyan intervention will ultimately be tested by whether these deficits are overcome. 75 8. postscript the recent history of post-conflict states is not a happy one. the legitimacy of intervention needs considerable re-evaluation in the light 72 ibid, para 28. 73 lin noueihed and alex warren the battle for the arab spring: revolution, counter-revolution and the making of new era (new haven, usa: yale university press, 2012) p 166. 74 arab human development report 2002, pp 27 -29. the most recent report (2012) is entitled empowerment: the will of the people, www.arab-hdr.org (accessed 18 july 2012). 75 for a further discussion, reference may be made to: lin noueihed and alex warren the battle for the arab spring: revolution, counter-revolution and the making of new era (new haven, usa: yale university press, 2012). for a report on the moves towards the empowerment of both women voters as well as women politicians, reference may be made to christopher stephen, “candidates belatedly realise that women could hold the key to their futures”, the observer, 8 july 2012. the denning law journal 63 of the slow progress in states as diverse as bosnia (and the other states of the former yugoslavia), iraq and afghanistan. it would not be unduly pessimistic to describe these states as not fully engaged with the ideals and processes of a functioning and accountable democracy. while qaddafi‟s rule is over, and his family and cronies face the inevitable process of accountability, the legitimacy of the libya „adventure‟ will ultimately rest on whether there is a successful transition to a functioning and fully-operational democracy. while it is true that democratic elections have taken place, commentators have pointed to a number of factors that have the potential to escalate. 76 in no particular order these include, first, the psychological vacuum left by the removal of qaddafi‟s personality cult; it is unlikely that the succeeding politicians will meet this. as pargeter puts it, “getting over a leader as all-encompassing as qaddafi is not going to be easy.” 77 second, the civil war and the intervention has devastated the oil production, the main source of revenue. as the experience of iraq indicates, returning to a fully-functioning economy will require both time and expertise. third, tens of thousands of libyans have been killed or seriously injured, creating a legacy of suspicion and hatred. the process of peace and reconciliation will, inevitably, be a long and difficult one. fourth, the tribal-clan fragmentation of libyan society has already been noted above. unless the newly-elected politicians can manage to reach out in a spirit of inclusiveness and manage these conflicting loyalties, there is a real danger that libya could split apart in the process of „balkanisation‟ witnessed, with horrendous consequences, in the former yugoslavia. pessimistically, as in iraq and egypt, it is unlikely that any of the newly-elected politicians have the necessary charisma and ruthlessness to match qaddafi‟s bizarre brand of „big man-strong arm‟ control. finally, and by no means exhaustively, the question arises as to whether the international community will be either willing or capable of continued monitoring of events in libya. unlike bosnia and kosovo, there seems little possibility of a nato peacekeeping force, while the 76 max boot (jeane j kirkpatrick senior fellow for national security studies) council on foreign relations (www.cfr.org/libya/libyas-problems-far-over) 24 august 2011. 77 pargeter, above, p256. the libyan intervention 64 wider events in the region (particularly in syria and mali, and the aftereffects of the allied withdrawal from iraq and afghanistan) may indicate that it is not a fore-gone conclusion that there may yet exist a failed state in this strategic part of the middle-east-mediterranean. unincorporated associations: property holding, charitable purposes and dissolution 197 denning law journal 2010 vol 22 pp 197-207 case commentary what’s in a name? re guardian and news media ltd in hm treasury v mohammed jabar ahmed [2010] uksc 1 carol brennan∗ introduction in this case the newly constituted supreme court adjudicated upon anonymity orders granted in respect of the appellants, who had been the subjects of asset-freezing orders imposed under anti-terrorism legislation. the complex set of facts gave the court the opportunity to consider the influence of the competing rights under articles 8 and 10 of the european convention on human rights (echr) upon the pressing issue of restrictions on reporting of publicly conducted legal proceedings. the decision of the court constitutes a reassertion of the importance of press freedom, underpinned by article 10, as an essential component of open justice. facts the appellants were five men upon whom the administrative court had imposed asset-freezing orders in 2007.1 at the time the court had added anonymity orders, which required that the names of the appellants be replaced with single initials in all reports of the proceedings. these “blanket bans” were continued during the subsequent legal proceedings which challenged the asset-freezing orders (the “substantive case”). at the later stages of these appeals, the press and media (“the press”), along with hm treasury, requested that that the anonymity orders be set aside. in the substantive case it was held by the supreme court that the executive had exceeded its powers in imposing limitations on the freedom of the individual on the grounds of “reasonable suspicion”, without parliamentary scrutiny. the asset-freezing ∗ llb (london school of economics), ma socio-legal studies, phd, barrister, lecturer in law university of buckingham. 1 the asset-freezing orders were imposed under article 4 of the terrorism (united nations) order 2006. case commentary 198 orders were thereby quashed.2 the issue of anonymity was considered separately but in parallel with the hearing on the substantive issue. in the case of two of the appellants (known as g and hay), their names as persons under freezing orders were already in the public domain due to a list published by the bank of england in 2005 and they had been further identified in various press reports. at the outset of the substantive case, the anonymity order had been lifted in respect of the former, mohammed alghabra. it had not yet been removed in the case of hay, who additionally had brought a successful action for wrongful imprisonment in which he was identified: youssef v home office.3 in re guardian the court noted that no evidence had been produced of harm, social or physical, having occurred to either of these appellants or their families due to their identities becoming known. on this basis, the court lifted hay’s anonymity order and declared that it would pursue no further discussion of anonymity in respect of g and hay. this left the supreme court to consider the cases of three brothers a, k and m, who were still anonymous, their identities having been ordered to be kept confidential at the (non-specific) request of the treasury with “presumed input by the security services”.4 although the treasury no longer regarded reporting restrictions to be necessary when fresh directions were made in respect of the appellants under the new terrorism order 2009, the restrictions were to be continued “in the interests of justice” until the matter could be determined by the supreme court; that is, whether an order whereby the disclosure of the appellants” identities would be lawful. a and k had left their addresses, were not in contact with their solicitors and it was unknown whether they were still in the uk. therefore the court had heard no compelling arguments as to the effect of revealing their identities. however revealing their identities would indirectly identify their brother, m, and so it was the potential impact on m and his family, upon which the appeal focused. he was living with his ex-wife and their five children and it was argued on his behalf that revealing him as one of those who was challenging the freezing orders would affect their relationships with muslim community, due to their fear of being associated with family. further concern was expressed about potential “serious damage to his reputation in circumstances in which he has not been charged with, or convicted of, any criminal offence and so has no opportunity to challenge the substance of the allegations against him.”5 2 her majesty’s treasury v mohammed jabar ahmed and others [2010] uksc 2. 3 [2004] ewca 1884 (qb). 4 the anonymity orders were imposed according to article 6 of the terrorism order 2006, which provides for “confidentiality”. 5 [2010] uksc 1 at para [21]. the denning law journal 199 in its first reported decision, lord rodger delivered a judgment on behalf of a unanimous 7-person supreme court, strongly endorsing the principle of “open justice”. when balancing echr article 8 rights to privacy against article 10 rights to freedom of expression, the court concluded that an insufficient degree of potential impact upon the former had been established, and that it was outweighed by an important general public interest in knowing the identity of those challenging freezing orders. the full names of the remaining three appellants (anonymity already having been lost for youssef and mohammed al-ghabra) were ordered to be available for publication, both in the instant case and in the substantive action against the freezing orders themselves. the decision lord rodger began by indicating the extent of the recent growth of restrictions on the press freely to report judicial proceedings, repeating counsel’s reminder to the court that, “your first term’s docket reads like alphabet soup.”6 further illustrating what he regarded as “an efflorescence of anonymity orders” lord rodger recounted calculations that in 8 out of 58 appeals heard by the house of lords in 2007 at least one of the parties appeared under an initial and in 2008 it was 15 out of 74.7 he then went on to allege that the lower courts had granted anonymity orders “without any very prolonged consideration and without explaining their thinking…” and recalled the warning of sir christopher staughton in ex p that “when both sides agreed that information should be kept from the public, that was when the court had to be most vigilant.”8 the context of the decision was, therefore, one in which such “blanket anonymity orders” were not to be granted save in the most compelling circumstances. open justice open justice has been described as “one of the oldest principles of english law going back before magna carta.”9 its two main manifestations are public attendance at hearings, and the free reporting of these hearings. confidence in 6 ibid, at para [1]. 7 my own calculations indicate that in 2009, the comparable figure was 12 out of 49. 8 unreported, the times march 31, 1998. 9 lns v persons unknown [2010] ewhc 119 (qb). see also: “publicity is the very soul of justice. it is the keenest spur to exertion and the surest of all guards against improbity. it keeps the judge, while trying, under trial.” jeremy bentham, quoted in g nettheim “the principle of open justice” (1984-6) 8 university of tasmania law review 28. case commentary 200 the legal system is partially founded upon justice being “seen to be done” and, given obvious practical difficulties with widespread first-hand observation, press reports have a crucial role in ensuring transparency. article 6 of the european convention on human rights (echr) sets out the fundamental entitlement of a defendant to a “fair and public trial”. i have italicised the latter aspect, which is qualified by acknowledgement that exclusion of the press or the public may be required “…in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”10 the court reviewed the historical background to the relationship between the press and the courts. restrictions on open hearings and publication were rejected in the 19th century in divorce cases but ultimately parliament began to intervene in 1926 with the judicial proceedings (regulation of reports) act according to which restrictions could be placed, not upon details revealing identity, but regarding matters publication of which would potentially cause injury to public morals. further statutory provision restricting publicity include section 1 sexual offences (amendment) act 1992, where nondisclosure of the complainant’s name is automatic; and the official secrets act 1920 section 8(4), the children and young persons act 1933 section 39 (pertaining to children involved in criminal proceedings) and the youth justice and criminal evidence act 1999 sections 44-46. in these last three cases anonymity is a matter of judicial discretion. the non-statutory restrictions were previously within the inherent jurisdiction of high court, but since the human rights act 1998 (hra) came into force in 2000, the power to make orders of this kind is one of the ways in which the uk fulfils its positive obligations under section 6 according to which public authorities, such as the courts, to must act compatibility with convention rights. in extreme cases, when physical safety is an issue, articles 2 and 3 of the echr may be engaged. lady justice hale in venables and thompson v ngn made an exceptional anonymity order in favour of the killers of james bulger.11 in our case the concern was about the lesser evil of harm to reputation and therefore the focus was upon the frequently competing rights of article 8, which sets out the right to privacy and family life and the 10 echr art 6(1). 11 [2001] 2 wlr 1038. this included press restrictions but not solely in terms of reporting court proceedings; the injunction was contra mundum, and prohibited revealing any facts which would identify the subjects. the complex implications of such a decision has been seen in the controversy regarding anonymity following the recall of jon venables to prison following reported breach of his conditions of licence. the denning law journal 201 article 10, the right to freedom of expression. a court may be acting unlawfully if, by permitting publication of his identity, it infringed a party’s article 8 right to a private and family life. additionally under article 8 there may also be a positive duty for the court to go farther and, through blanket orders, require others, such as the press and journalists, to respect the applicant’s private and family life. whether acting under either negative or positive obligations the courts must strike a fair balance between competing needs of the individual and the community. the community’s competing needs are embodied in the article 10 right to freedom of expression. this is compromised when the courts prohibit the reporting of the names of the parties to proceedings which, despite being heard in open court by those present, are forbidden to be reported to the wider public. article 10(2) stipulates that such restrictions are permitted when necessary in a democratic society for the protection of reputation or rights of others. as will be seen below, the courts have established that the balancing of the competing demands of articles 8 and 10 will be accomplished by invoking the principle of proportionality. re s and “bbc” two recent cases illustrate prevailing judicial attitudes to the relationship between article 8 and article 10. in re s (a child) (identification: restrictions on publication)12 a request was made on behalf of a child for an injunction against naming the defendant in a murder trial, in which his mother was charged with the murder of his brother. the situation was not covered by section 39 of the children and young persons act 1933, the child not being “a child concerned in the proceedings, either as being the person by or against or in respect of whom the proceedings were taken, or as being a witness therein.” the outcome was in favour of open justice despite claims that publicity regarding the child could lead to risks to his health and well-being. lord steyn said in his leading speech: “…the ordinary rule is that the press, as the watchdog of the public, may report everything that takes place in a criminal court. i would add that in european jurisprudence and in domestic practice this is a strong rule. it can only be displaced by unusual or exceptional circumstances. it is, however, not a mechanical rule. the duty of the court is to examine with care each application for a departure from the rule by reason of rights under article 8.”13 but exceptions should be rare: “…it needs to be said clearly and unambiguously that the court has no power to create by a process of analogy, except in the most compelling circumstances, 12 [2004] ukhl 47. 13 ibid, at para [18]. case commentary 202 further exceptions to the process of open justice.”14 he cited r v legal aid board e p kaim todner, where lord woolf said, “the need to be vigilant arises from the natural tendency for the general principles to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases. this is the reason it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing.”15 in a judgment which invoked the balancing of articles 8 and 10, according to the principle of proportionality, the house of lords in s declined to grant an injunction against publication revealing identity. according to lord steyn: “a criminal trial is a public event. the principle of open justice puts, as has often been said, the judge and all who participate in the trial under intense scrutiny. the glare of contemporaneous publicity ensures that trials are properly conducted. it is a valuable check on the criminal process. moreover, the public interest may be as much involved in the circumstances of a remarkable acquittal as in a surprising conviction. informed public debate is necessary about all such matters. full contemporaneous reporting of criminal trials in progress promotes public confidence in the administration of justice. it promotes the values of the rule of law.”16 any account of the trial would be “very much disembodied” and with a lesser impact on the audience, if it did not the reveal of the identity of the defendant. subsequently the house of lords confronted similar issues in atty-gen ref no 3 of 1999: application by the bbc to set aside or vary a reporting restriction order (hereafter bbc).17 in 1999 “d” had been acquitted of rape, a matter that was freely reported according to the principle of open justice. however one year later an attorney general’s reference was made challenging this acquittal and this hearing was accompanied by an anonymity order (imposed by the court of appeal upon a statutory basis later doubted by the law lords). some nine years later, a bbc programme challenged this anonymity order. under section 78 of the criminal justice act 2003, which changed the law on double jeopardy, the bbc intended to reveal “new and compelling evidence” that d’s dna matched that at the crime scene as part of a press campaign for a re-trial. 14 ibid, at para [20]. 15 [1999] 1 qb 966, at 977. 16 [2004] ukhl 47, at para [31]. 17 [2009] ukhl 34. the denning law journal 203 the link that his dna sample provided was held to be information in respect of which d had a reasonable expectation of privacy, thereby engaging article 8. however the proposed bbc programme on “controversial acquittals” raised matters of general public interest, including the issues of indiscriminate storage of dna and reform of the abolition of double jeopardy rule. it will be seen that this quality of “general public interest” is one which lends particular “article 10 weight” to any calculation of proportionality. here, this debate would lose cogency if it could not be linked to facts and circumstance of actual cases. in conclusion, although it was acknowledged that there would be a significant interference with d’s article 8 rights, denial of anonymity was ultimately proportionate to the need, in a democratic society, for the public to be aware of controversial matters of criminal justice. the significant aspects of the anonymity orders in re guardian were: firstly, that the applicants were attempting to block their identification in reports concerning basic facts the truth of which they did not dispute: that they had been the subjects of asset-freezing orders. secondly, these “blanket bans” were so extensive in their reach (enforceable against even those writing in sympathy with the appellants) that they required justification under article 10(2) as necessary in a democratic society in order to ensure protection of m’s article 8 rights to a private and family life.18 lord rodger reiterated that the anonymity orders under consideration imposed not only self-constraints on the courts but were “sweeping” in their effect upon the press. the subject matter under debate was a key determinant in the court’s approach. the asset-freezing orders in the substantive case were executive orders under the terrorism legislation and the appeals challenging them take the form of judicial review.19 the foundations of the orders, however, are closely allied to criminal matters and it is clear that the principles underlying this anonymity case belong to the branch of privacy law which includes s and bbc. it has more differences than similarities to “celebrity privacy” situations (discussed below), which do not directly concern the principle of open justice. european influences m’s application set out the ways in which he felt that publicity would seriously affect his private life, including the loss of contact for himself and his family with their local muslim community, and “serious damage to his reputation.” (as noted, no allegations were made of risk of physical violence in relation to any of the applicants.) according to the european court of human rights (ecthr) the “rights of others”, which according to article 10(2) might justify interference with freedom of expression, include article 8 18 uksc 2010 1 at para [47]. 19 ibid, at para [37]. case commentary 204 rights. petrina v romania confirmed that protection of a person’s reputation is a right that, as an element of private life, falls within the scope of article 8.20 this followed the decision in pfeifer v austria which held that “a person’s reputation, even if that person is criticised in the context of a public debate, forms part of his or her personal identity and psychological integrity.”21 in karako v hungary the ecthr, after confirming that reputation was covered by article 8, concluded that there are escalating degrees of interference: the lowest involving “mere” reputation up to those which are held to undermine personal integrity and which will be regarded most seriously.22 the bbc case23 refers to lord hoffmann’s characterisation of a person’s reputation as an “immortal part of himself”. further afield, in the un’s international covenant on civil and political rights, “unlawful attacks on…honour and reputation” are included with privacy, family home or correspondence in the protections provided by article 17.24 the court undertook a comparative exercise which revealed a considerable use of anonymity of court proceedings in european jurisdictions, particularly in germany where courts themselves do not mention the names of parties, possibly to reinforce appearances of impartiality, despite the fact that the press and wider public may know of and use the relevant names. in contrast, in the present case, the actions themselves have been heard in public, with anonymity not enforced against those in attendance save for the court attempting to control the actions of the press. balancing articles 8 and 10 an early opportunity for the house of lords to explore the interaction between articles 8 and 10 was provided by the case in which the model naomi campbell sued mirror group newspapers due to its disclosure of “private information” concerning her attendance at narcotics anonymous.25 in holding that neither article 8 or article 10 had automatic priority, or even a presumption in its favour, lord hoffmann was of the opinion that both provisions reflect “important civilised values”.26 often there will not be a 20 appl no 78060/01, october 14 2008 at para [19]. 21 (2007) 48 ehrr 175, 183 at para [35]. 22 appl no 39311/05, april 28 2009. 23 [2009] ukhl 34 at para [7], as described in jameel (mohammed) v wall street journal europe spr [2007] 1 ac 359 at para [91]. 24 “1) no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2) everyone has the right to the protection of the law against such interference or attacks.” 25 campbell v mgn ltd [2004] ukhl 22. 26 ibid, at para [ 55 ]. the denning law journal 205 conflict between the two, but such conflict would arise in situations in which one was necessarily compromised by protecting the values underlying the other. the extent of compromise of the one must be measured in proportion to the extent of need evoked by the other. “proportionality” was said by lord steyn in s to provide the “ultimate balancing test”.27 the press persepctive in re guardian, lord rodger expressed one argument, which favoured article 10, in terms of concern for the journalist enterprise itself. “what’s in a name? ‘a lot’, the press would answer.” under anonymity, the appellants would appear “disembodied”, while identification would make “more vivid and compelling” accounts of “wrongs done to them”.28 without the use of names, the papers will be less likely to publish accounts due to lack of human interest and so less likely to stimulate informed debate on freezing orders. as we have seen in the bbc case, this point is not new to the debate, and would be repeated, for example, in opposing john terry’s recent attempt to conceal the less reputable aspects of his love life. 29 it would appear that stimulation of debate was something, which the appellants in re guardian had been prepared to forego in favour of personal protection, so they understandably regarded this argument as spurious. regarding the potential impact on m’s family, it had already been acknowledged in s that impact on non-parties could in future be taken into consideration.30 the court noted the obvious point that such impact was speculative or anticipatory in nature. lord rodger also felt that the anticipation of a damaging impact was founded upon assumptions made about public reactions to stories which would name the appellants, ie that those upon whom freezing orders had been imposed were at best disreputable and at worst guilty of terrorism, despite the reality that they had not been convicted. effectively the action claimed that the press should be prevented from publishing the truth for fear that readers might misinterpret it. the lords’ approach here was reminiscent of that in the defamation case of lewis v daily telegraph31 in which the city of london fraud squad was reported to be inquiring into the affairs of a company. the plaintiffs had claimed that this was defamatory of them because it implied guilt. the truth that there was such an investigation, based upon suspicion, could not be denied but it was the innuendo of guilt which the house of lords rejected. according to lord devlin, “if the ordinary sensible man was capable 27 [2004] ukhl 47, at para [17]. 28 [2010] uksc 1, at paras [63-65]. 29 lns v persons unknown [2010] ewhc 119 (qb) at para [62]. 30 [2004] ukhl 47 at para [32]. 31 [1964] ac 234. case commentary 206 of thinking that where ever there was a police inquiry there was guilt, it would be impossible to give accurate information about anything…”32 unlike the plaintiff in lewis, the appellant m will not have the chance to challenge the substance of the implied allegation against him as he will not be brought to trial and so suspicions, which may be unfounded, are more likely to persist. lord hoffmann, in re s, had followed campbell in describing the element of public interest in the publication as a key element giving weight to freedom of expression. to constitute a “positive general interest supporting disclosure” was said in the important ecthr case of von hannover to require something more substantial than lightweight “infotainment”.33 in re guardian the supreme court relied on these precedents to take a strong stand on the importance of transparency or “open justice” in matters of “general public interest.” “the legitimate interest of the public is wider than that of judges qua judges or lawyers qua lawyers. the public has a legitimate interest in not being kept in the dark about who are challenging the tos and the aqos.”34 to make an informed judgement the public need to know more, such as the fact that hay has already successfully sued home secretary for wrongful detention. in order to debate the merits of the system, identification would enable the public to see how it “affects different people in different situations”.35 this is an “important public matter” not some trivial aspect of an individual’s private life and “publication of m’s identity would make a material contribution to a debate of general public interest.”36 regarding the appellants themselves, “it is unusual, to say the least, for individuals to enter a debate, using highly charged language and accusing the government of dishonouring a pledge, but at the same time to insist that they should have the right to hid behind a cloak of anonymity.”37 in view of the conclusion that the potential effect on m’s private and family life was “very general, and for that reason, not particularly compelling” the court’s application of proportionality required that the full names of the five appellants were made explicit in both this and the substantive case. the decision was accompanied by an acknowledgment that nothing is risk free, although the apparent lack of impact to date consequential upon the earlier naming of mr al-ghabra supported a view that the risk would be a minor one. most appropriately, the 32 ibid, at 286. 33 von hannover v germany (2005) 40 ehrr 1. here princess caroline of monaco won a case concerning paparazzo surveillance in a semi-public place. 34 [2010] uksc 1 at para [68]. “to” refers to the terrorism orders 2006 and 2009 and “aqo” refers to the al-qaeda and taliban (united nations measures) order 2006. 35 [2010] uksc 1 at para [69]. 36 ibid, at paras [73-75]. 37 ibid, at para [71]. the denning law journal 207 press complaints commission should deal with any transgressions by the press.38 comment it is arguable that re guardian indicates that the supreme court, at the outset of its new incarnation, is intent on reasserting the beneficial essence of the principle of open justice. although, as we have seen, the terrorism legislation and related jurisprudence fall within the realm of administrative law, they are closely allied to the criminal law in substance. however the supreme court did not in any way confine its position on anonymity to criminal cases connected to terrorism and reserved its opinion on control order anonymity. the court’s perspective was that the purpose of the freezing order is public and thus it constitutes “an important public matter.” additionally, open justice as a value is given an intrinsic weight that many personal matters do not have. there is a contradiction implicit in this outcome because it appears that the more serious the (possibly implied) allegation which leads its individual subject to seek secrecy, the more likely there is to be a justifiable public interest generated, which may then make secrecy unsustainable. admittedly it is based upon a relatively narrow point (the reporting of legal proceedings), but both in tone and in substance this decision of the supreme court may be indicative of a new stance towards the weighting of freedom of expression against privacy. the court goes further than merely applying a restrictive interpretation of reputation in the context of article 8: when there is a held to be high degree of general public interest in a case being reported then this can only be matched or overridden by a serious threat to personal integrity. it has been noted that re guardian was shortly followed john terry’s failed attempt to prevent revelation of his extra-marital affair and the resurgence of public debate over the recall to prison of jon venables, who has been beneficiary of wide-ranging press restrictions. we see, then, that pleas for anonymity come from a wide range of sources and motivations and it is interesting to speculate whether such pleas are symptomatic of a some significant social trend or, more simply are a reflection of eagerness to test the boundaries of developing privacy rights under the human rights act in the face of pervasive media scrutiny. 38 an online search revealed very limited subsequent publicity given to personal information about the men, beyond their names and a summary of the suspicions about them. the daily mail published a photo of mr al-ghabra on october 28 2009. case commentary introduction facts the decision open justice re s and “bbc” european influences balancing articles 8 and 10 the press persepctive comment unincorporated associations: property holding, charitable purposes and dissolution 117 denning law journal 2012 vol 24 pp 117-137 indigenous self-determination: the root of state resistance sarah sargent  and graham melling  introduction states have long expressed some resistance towards granting the right of self-determination to identifiable groups of people within their boundaries. this includes the granting of the right to minorities and to indigenous groups. one of the ways in which this reluctance reveals itself is in states‟ resistance to the granting of recognition of “peoples” to certain groups. states, it would seem, draw the erroneous conclusion that recognition of groups as “peoples” under international law will inexorably lead to such “peoples” asserting a right to self-determination and with that an unfettered ability to secede from the state. however states‟ fear of indigenous secession has no realistic basis. yet states continually resist the idea of indigenous self-determination. why has such an interpretation taken hold as an accepted normative doctrine of international law? states, apparently fearing for their territorial integrity (and perhaps for the natural and other resources within certain land), resist recognising groups as “peoples”. 1 as this article discusses, however, the fear that indigenous groups would seek secession from the state upon being recognised as “peoples” is groundless. to understand the recognition of a group as “peoples” and the principle of self-determination in this manner is fundamentally inaccurate. this article posits that states fear of losing territorial integrity through indigenous secession is not at the heart of state resistance to indigenous self-determination. rather, the resistance of states to indigenous self-determination is located in another source – modern state identity as liberal states. indigenous self-determination is at odds with in particular jacobin forms of liberal statehood in particular 2 and arguably, that is the real root of state  dr sarah sargent, lecturer at law, university of buckingham.  dr graham melling, lecturer at law, university of buckingham. 1 the recognition of groups as “peoples” in international law has occurred a limited number of times since 1945. 2 a jacobin form of liberal statehood is reflective of how a state does with plurality among its members. as discussed below at footnotes 64 and 65 and accompanying text, a jacobin form of statehood emphasises loyalty and identification with the state rather than with ethnic or other groups within the state. w safran explains that “jacobin doctrine...emphasized a highly centralized state and rejected both indigenous self-determination 118 resistance not only to indigenous self-determination but to all indigenous rights norms that are seen as a threat to liberal statehood. state resistance to the principle of self-determination in the united nations declaration on indigenous rights (undrip) 3 reveals on-going state unease over granting collective “hard” rights under international law. even though the recognition of the right of self-determination within the undrip gives rise to a “hard” right, such recognition is as much symbolic as giving rise to concrete practical outcomes, such as secession. international law as yet has not extended that far and for practical considerations is unlikely to do so. accommodation by states, however, of indigenous rights means a reformulation of state identity away from modern jacobin liberalism – something states view as deeply threatening. therefore it is unlikely to occur. state resistance to indigenous selfdetermination there is a widespread view that sees any international recognition of a particular group as a “peoples” brings with it an immediate access to all of the actions embodied within the principle of self-determination. a group with access to self-determination is seen as having an immediate and incontestable right to secede from the state to create its own independent state. state resistance to indigenous self-determination is often presented as being lodged in this commonly held, but inaccurate, perception of the normative content of the principle of self-determination. 4 institutional and ethnocultural pluralism.” w safran “pluralism and multiculturalism in france: post jacobin transformations” (2003) 118(3) political science quarterly 437 at 438. 3 the united nations declaration on the rights of indigenous peoples was approved by the united nations general assembly on 13 september 2007, a/res/61/295, available at http://daccess-ddsny.un.org/doc/undoc/gen/n06/512/07/pdf/n0651207.pdf?openelement. accessed 1 st september 2012. 4 m davis comments: „self-determination for indigenous peoples was still viewed by many states as synonymous with decolonisation and a threat to the territorial integrity and sovereignty of states.‟ she refers to this interpretation of the principle of selfdetermination as „the dominant decolonisation construct.‟ m davis “indigenous struggles in standard setting: the united nations declaration on the rights of indigenous peoples” (2008) 9 melbourne journal of international law 1 at 21. see also j castellino “territorial integrity and the „right‟ to self-determination: an examination of the conceptual tools” (2008) 33(2) brooklyn journal of international law 499 at 511, commenting: “the general assembly explained that selfdetermination was a decolonization process...” and further: “many classify the right to self-determination as a norm of jus cogens, even though the phrasing of the [friendly the denning law journal 119 state expression of resistance to indigenous self-determination through opposition to the undrip is only the latest in a consistent chain of events where states resist the merest reference to indigenous groups as “peoples”. there is nothing new or unique in state positionality on the undrip and its self-determination content. throughout the indigenous rights movement in the international community, states have been reluctant to recognise indigenous groups as “peoples”. this reluctance has also been expressed in state positions regarding minority groups and self-determination. 5 this was evident in state resistance to the idea of indigenous groups being referenced as “peoples” during the revisions of international labour convention 107. ilo convention 107 was criticised as being too assimilationist in its content and in need of revision to reflect the contemporary thinking that assimilation as an appropriate policy for states to pursue. 6 the revisions that were made to ilo convention no 107 resulted in a new convention, ilo convention no 169 in 1989. 7 gone were the provisions that were seen to present a very paternalistic and assimilationist approach towards indigenous rights. the ilo convention no 169 instead presented an entirely new approach towards indigenous peoples in international law. lee swepston comments that ilo convention no 169: “...adopts an attitude of respect for the cultures and ways of life of indigenous and tribal peoples. it presumes their right to continued existence and to development along lines they themselves wish. the declaration] itself clearly limits application of the doctrine to decolonization...”, at 512. see also discussion on the drafting of the united nations declaration on the rights of indigenous peoples at section 3 below. see also s wiessner “indigenous sovereignty: a reassessment in light of the un declaration on the rights of indigenous peoples” (2008) 41 vanderbilt journal of transnational law 1141 at 1159-1162 on how state fears of indigenous secession through self-determination delayed an approval vote in the united nations general assembly. see also s j anaya, indigenous peoples in international law (2 nd edition, oxford university press, 2004) pp 59-60, commenting that in relation to ilo convention no 169, “state governments, however, resisted, use of the term peoples because of its association with the term self-determination....which in turn has been associated with a right of independent statehood.” at 60, emphasis in the original. 5 for a general discussion see s sargent “transnational networks and united nations human rights structural change: the future of minority and indigenous rights” (2012) 16(1) the international journal of human rights 123 at 136-139. 6 anaya, above n 4, pp 58-59. 7 ibid, p 59. see also l swepston “a new step in the international law on indigenous and tribal peoples: ilo convention no 160 of 1989” (1990) 3(15) oklahoma city university law review 677 at 687-689. indigenous self-determination 120 convention also provides...for the right of these peoples to be involved in the decision-making process as it affects them.” 8 yet, states remained very wary about a broader grant of international rights to indigenous groups. this is reflected in two ways. firstly, the ilo convention 169 is hard law–that is, it is binding upon states in contrast to the soft and non-binding law of the undrip. this may account for the reluctance of states to ratify this instrument, despite its high profile in international law. 9 states remain wary of agreeing to indigenous rights that can be classified as “hard rights.” 10 a binding international law instrument would certainly fall into the class of “hard rights.” secondly, despite a reference to indigenous groups as “peoples” within ilo 169, that designation is given with a strong disclaimer. preambular language makes reference to “indigenous peoples” and to “indigenous and tribal peoples” in several places. 11 the body of the instrument itself is quick to dispel that this is in any way a grant of recognition as “peoples” under international law. article 1(3) unequivocally states: “the use of the term peoples in this convention shall not be construed as having any implications as regards the rights which may attach to the term under international law.” 12 the same resistance towards the use of the word “peoples” arose in debates over the naming of the newly created united nations permanent forum on indigenous issues (unpfii). 13 the creation of the forum itself was seen as a victory. the forum was permanent in nature and was the first un 8 ibid, 690. 9 only 20 number of states have ratified this instrument as of 1 september 2012. http://www.ilo.org/indigenous/conventions/no169/lang--en/index.htm. accessed on 1st september 2012. 10 s lightfoot argues that indigenous rights and the compliance of states with these rights can be analysed in part by dividing rights into “hard” and “soft” rights, with states more likely to comply with those rights deemed as “soft.” she lists “hard rights” as including “land rights and self-determination” while soft rights include “language, culture, religion...” s lightfoot, “emerging international indigenous rights norms and „over-compliance‟ in new zealand and canada” (2010) 62(1) political science 84 at 104. 11 international labour organisation convention no 169. 12 international labour organisation convention no 169, article 1(3). 13 sargent, above n 5, 123,139. the denning law journal 121 forum to be specifically focused on indigenous issues. 14 it took nearly 10 years for the forum to be created from its first recommendation in 1993 to official recognition by un resolution in 2002. 15 prior to this however a disagreement arose over the name. 16 but opponents of indigenous selfdetermination opposed such a designation of a forum for indigenous “peoples”, fearing that even referencing indigenous groups as “peoples” in a forum would be an avenue for indigenous groups to lay claim to the right to self-determination. 17 yet again state resistance to the use of the word “peoples” in connection with indigenous groups appeared in debates over what to name the united nations decades for indigenous groups. states resisted the use of the word “peoples”, and so the two decades became known as the decade of indigenous people–but not as “peoples”. 18 the inclusion or not of the final “s” on the word may appear to be semantic trifling. but it is far more than that. that states oppose the use of the word outside legal instruments – and stand against its use in the naming of a forum and in united nations recognition of events – speaks to the very deep-seated nature of state positions on any linkage between “indigenous” and “peoples.” yet, as discussed in section 4 of this article, the unrealistic grounding of the state fear of indigenous cessation through self-determination must be examined. states consistently and relentlessly resist the linkage of “indigenous” and “peoples” – for reasons that are no more than a smokescreen covering deeper and unstated fears. the development of the united nations declaration on the rights of indigenous peoples drafting of the united nations declaration on the rights of indigenous peoples was a process which was long and drawn out over more than twenty years. both states and indigenous groups contributed to the content of the document. the content is notable in that no definition of “indigenous” is 14 ibid, p 139. see also anaya, above n 4, pp 219-220; j corntassel “partnership in action? indigenous political mobilization and co-optation during the first un indigenous decade (1995-2004)” (2007) 29 human rights quarterly 137 at 138, 148. 15 anaya, above n 4, p 219-220; corntassel, ibid, at 138, 148. 16 corntassel, above n 14, at 155. 17 ibid, at 155. 18 s wiessner “rights and status of indigenous peoples: a global comparative and international legal analysis” (1999) 12 harvard human rights journal 57 at 101102. indigenous self-determination 122 offered and, secondly, the instrument recognises indigenous groups as “peoples” with access accordingly to the principle of self-determination. these two issues in concert created and continue to create state resistance to indigenous rights at international law. the ilo convention 169 contains some defining characteristics to set out what groups and individuals are covered by its provisions. 19 despite this inclusion, the convention also makes clear that the idea of “self-identification” is the “fundamental criterion for determining the groups to which the provisions of this convention apply”. 20 in an unexpected late development, as the draft declaration was headed to a scheduled vote in the un general assembly, opposition to the content on the principle of self-determination was such that potential approval was in doubt. 21 it was only after amendments to the declaration clarifying that the self-determination of indigenous peoples did not permit secession from the state that the vote went forward on the floor of the general assembly. 22 the instrument was amended to include the language of now article 46 that made clear that an exercise of self-determination by indigenous peoples would not harm the territorial integrity of states. 23 in short, the right to self-determination provided for in article 3 of the declaration was tempered by the language of article 46 to provide for “internal” self-determination which gives rights more akin to self-governance and autonomy within the existing boundaries of a state. as the last-minute flutter of activity on the declaration‟s content shows, states fear the exercise by indigenous peoples of self-determination in any of its many guises. accordingly states feared that if indigenous groups were given recognition in international law as “peoples” 24 and thus gained a claim 19 article 1(a) and (b). 20 article 1(2). 21 wiessner, above n 5, at 1141, 1159-1162; see also sargent, above n 5, at 137. 22 united nations general assembly, a/res/61/295 13 september 2007. http://daccess-ddsny.un.org/doc/undoc/gen/n06/512/07/pdf/n0651207.pdf?openelement. accessed on 1 st september 2012. 23 article 46 in relevant part states: “1. nothing in this declaration may be interpreted as implying for any state, people, group or person any right to engage in any activity or to perform any act contrary to the charter of the united nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states.” 24 for instance, the international labour organisation instrument 169 tempers its use of the word “peoples” in the instrument by explaining this use does not suggest access to the principle of self-determination. the denning law journal 123 to a legitimate exercise of self-determination in accordance with the principle in the un charter 25 and in the joint article 1 of the international covenant on civil and political rights and the international covenant on economic, social and political rights. 26 is this, however, a realistic fear of states? whilst there are numerous statements that indigenous peoples do not seek secession from states that has not allayed state resistance to indigenous self-determination and concomitantly then to international law provisions for indigenous rights. internal and external self-determination the principle of self-determination is clearly established as an important principle of international law. it is given clear expression in article 1(2) and 55 of the un charter; the declaration on the granting of independence to colonial territories and peoples; the international covenant on civil and political rights and the international covenant on economic social and cultural rights; 27 the 1970 friendly relations declaration 28 and the organisation for security and co-operation in europe‟s helsinki final act. 29 25 article 1(2) charter of the united nations. 26 article 1 international covenant on civil and political rights, 999 unts 171, ga res 2200a (xxi), un doc a/6316 (dec 16, 1966). 27 see international covenant on civil and political rights art. 1, 999 unts 171, ga res 2200a (xxi), un doc a/6316 (dec 16, 1966); international covenant on economic social and cultural rights art. 1, 933 unts 3, ga res 2200a (xxi), un doc a/6316 (dec 16, 1966). 28 declaration on principles of international law concerning friendly relations and co-operation among states in accordance with the charter of the united nations ga res 2625, annex, 25 un gaor, supp. (no 28), un doc a/5217, 121 (1970). 29 the final act of the conference on security and co-operation in europe, 1 st august 1975, 14 i l m 1292 (helsinki declaration) this states: “the participating states will respect the equal rights of peoples and their rights to self-determination, acting at all times in conformity with the purposes and principles of the charter of the united nations and the relevant norms of international law including those relating to territorial integrity of states. by virtue of the principle of equal rights and self-determination of peoples, all peoples always have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference, and to pursue as they wish their political, economic, social and cultural development.” indigenous self-determination 124 furthermore this right is firmly entrenched in customary international law. 30 the first question to be addressed is, what does self-determination mean? the 1970 friendly relations declaration defined the right of selfdetermination as extending to “all peoples” and: “by virtue of the principle of equal rights and self-determination of peoples enshrined in the charter of the united nations, all peoples have the right freely to determine, without external influence, their political status and to pursue their economic, social and cultural development, and every state has the duty to respect this right in accordance with the provisions of the charter.” 31 despite rhetoric to the contrary, there is no settled agreement on the meaning of self-determination. a good explanation of the meaning of selfdetermination is provided by professor susanna mancini who suggests that self-determination “roughly” 32 equates to: “the freedom for all peoples to decide their own political, economic and social regimes. it is, therefore, both a collective right of peoples to decide autonomously the course of their national life and to share power equitably, and a right of all individuals to participate fully in the political process.” 33 professor mancini‟s definition provides a nuanced analysis of the concept of self-determination taking into account both the collective and individual nature of the idea of self-determination. for professor mancini the concept of self-determination recognises the “collective” in the sense of it providing a right for a group of “peoples” to self-determination and the “individual” in 30 western sahara case advisory opinion icj rep 1975, 12, para. 56; j vidmar “international legal responses to kosovo‟s declaration of independence” (2009) 42 vanderbilt journal of transnational law 779 at 807; r mccorquodale “selfdetermination: a human rights approach” (1994) 43 international & comparative law quarterly 857 at 858. 31 declaration on principles of international law concerning friendly relations and co-operation among states in accordance with the charter of the united nations ga res 2625, annex, 25 un gaor, supp. (no.28), un doc. a/5217, 121 (1970). this definition was subsequently re-iterated in the helsinki final act of 1975. 32 s mancini “rethinking the boundaries of democratic secession: liberalism, nationalism, and the right of minorities to self-determination” (2008) 6 international journal of constitutional law 553 at 554. 33 ibid. the denning law journal 125 that the individual within the group of “peoples” has a right to participation in the collective right. with both facets facilitating equal and autonomous participation in political, economic and social regimes. mancini‟s view is underpinned by the individual right to participate in the political process guaranteed to all “people” under article 25 iccpr. 34 however, for the purposes of self-determination it is the collective right of a group that accounts for the doctrine. an individual whilst having his/her right to participation in the political process guaranteed under the iccpr could not realistically claim a right to self-determination. however, the guaranteed individual rights of people contained in the iccpr underpin the collective rights that are enforced by the doctrine of self-determination. initially the right of self-determination was applied in the colonial context becoming a legal norm which could override the related principles of sovereignty and territorial integrity. 35 the process of decolonization led to the creation of over one hundred states with the principle of self-determination playing a central role. the importance of the principle of self-determination was highlighted in the international court of justice‟s important namibia opinion 36 in which the court concluded: “in the domain to which the present proceedings relate, the last fifty years... have brought important developments. these developments leave little doubt that the ultimate objective of the sacred trust was the self-determination and independence of the peoples concerned.” 37 outside the context of colonialism, however, there has been resistance to the suggestion that the right self-determination might have any application, in particular on the part of the emerging third world and eastern european states. yet, despite such resistance the idea of the right of self-determination being applicable outside colonialism has been fostered by a number of international declarations and political instruments notwithstanding any resistance on the part of some states. moreover, in 1988 the international law commission expressed the opinion that the principle of self-determination 34 international covenant on civil and political rights art 1, 999 unts 171, ga res 2200a (xxi), un doc a/6316 (dec. 16, 1966). 35 declaration on the granting of independence to colonial territories and peoples ga res 1514 (xv). december 14, 1960. gaor 15 th sess, supp 16, 66. 36 legal consequences for states of the continued presence of south africa in namibia (south west africa) notwithstanding security council resolution 276 (1970) icj rep 1971, 16. 37 ibid, 31 paragraph 53. indigenous self-determination 126 was of universal application. 38 therefore, that international law recognises the right of all peoples to self-determination is a well-established principle of international law. the normative meaning of self-determination has been split into two – internal and external self-determination. internal self-determination operates within the boundaries of existing states. in particular “as a right of the entire population of the state to determine its own political, economic and social destiny and to choose a representative government; and, equally, as a right of a defined part of the population, which has distinctive characteristics on the basis of race or ethnicity, to participate in the political life of the state, to be represented in its government and not to be discriminated against.” 39 external self-determination is an exercise that results in the secession of a group from the state, and the establishment of a new independent state. as discussed in the following section, the definition of self-determination ultimately approved in the united nations declaration on the rights of indigenous peoples was that of internal self-determination. it is not often recognised in the context of discussions on indigenous rights that internal self-determination is not a concept unique to the declaration or to indigenous rights. a right to external self-determination? international law and international practice has provided guidance with respect to self-determination. it constitutes a right of an entire population of a state to determine its own political and social destiny within a state or as a defined peoples which has distinctive characteristics on the basis of race or ethnicity, to participate in the political life of the state, to be represented in its government and not to be discriminated against. these rights are to be exercised within the state in which the population or the ethnic or indigenous 38 m shaw international law (cambridge university press 2008) p 270; r higgins problems & process (oxford: clarendon press, 1994) p 116; yearbook of the ilc, 1988, vol ii part 2, 64: “the principle of self-determination, proclaimed in the charter as a universal principle, had been applied mainly in eradicating colonialism, but there were other cases in which it had been and could and should be used. by not tying it exclusively to colonial contexts, it would be applied much more widely. in that connection, all members of the commission believed that the principles of selfdetermination was of universal application.” 39 accordance with international law of the unilateral declaration of independence in respect of kosovo (request for advisory opinion) available at http://www.icj cij.org/docket/index.php?p1=3&p2=4&k=21&case=141&code=kos&p3=4, separate opinion of judge yusuf, p 3 paragraph 9. the denning law journal 127 group live, and thus constitute internal rights of self-determination. 40 where international law provides less coherent guidance is where a “peoples” wish to exercise a right of external self-determination. in more recent times minority groups within states have sought to claim a right to self-determination and that that self-determination entails secession. 41 this is referred to as “external selfdetermination”. 42 claims to external self-determination by a minority group are seen as posing a challenge to international law as well as to the liberal state and also to the wider community of states. 43 professor dame rosalyn higgins suggests that the question of whether a minority group has a right of external self-determination requires understanding “the relationship between self-determination and national unity.” 44 contemporary understandings of the normative content of selfdetermination after the decolonisation era have emphasised that there is no automatic right of a group to secede from the state. 45 that self-determination poses no threat to the territorial integrity of the state is stressed in the 1970 friendly declaration. 46 this instrument was produced towards the end of the era of decolonisation, perhaps prescient of the continuing importance that the principle would have in international law. the declaration‟s inclusion of the principle consists of two components. first, it employs the principle of territorial integrity as a limit to the scope of the right of self-determination. 47 thus, a racially or ethnically distinct group within a state, even if it qualifies as a peoples for the purposes of selfdetermination, does not have the right to unilateral secession simply because it wishes to create its own separate state. 48 the prevailing view amongst states 40 ibid; see declaration on the granting of independence to colonial territories and peoples ga res 1514 (xv). december 14, 1960. gaor 15 th sess, supp 16, 66. 41 higgins, above n 38, p 121. 42 vidmar, above n 30, at 808. 43 see discussion in section 5 below. 44 higgins, above n 38, p 121. 45 according to higgins: “the evolving norms on self-determination contained – undeniably and consistently – an anxious refrain whereby self-determination is to be harnessed to, and not the enemy of, territorial integrity.” higgins, above n 38, p 121. 46 according to the friendly relations declaration: “nothing in the foregoing paragraphs shall be construed as authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.” 47 vidmar, above n 30, at 808. 48 mancini, above n 32, at 556. indigenous self-determination 128 is that the availability of such a right would reduce to nothing the territorial sovereignty and integrity of states and would lead to interminable conflicts and chaos, as evidenced by the dissolution of the former federal republic of yugoslavia. there is no general right under international law or international practice which entitles any ethnically or racially distinct group within an existing state to claim a right to secede from the metropolitan state. secondly, however, the friendly declaration may be understood to suggest that under certain circumstances the territorial integrity limitation on the right of self-determination will not arise. 49 put another way, while selfdetermination should normally be enjoyed and exercised inside the existing framework of states, are there circumstances which would exceptionally legitimise secession? it is clear that the wish of a group to secede from the metropolitan state – whether to form their own independent state or to join another state – will be at its most intense where their human rights have been infringed and suppressed. 50 higgins is of the view that minorities do not have a “right” of self-determination and in effect have no “right” to secession. 51 according to professor james crawford, however, the key consideration is how the minority group has been treated by the metropolitan state: “the question is whether... a state that does not conduct itself in compliance with the principle of equal rights and self-determination of peoples; e.g., in the case of total denial to a particular group or people within the state any role in their own government, either through their own institutions or the general institutions of the state. at least it is arguable that, in extreme cases of oppression, international law allows remedial secession to discrete peoples within a state, and that the „safeguard clause‟ in the friendly relations declaration ... recognize this even if indirectly.” 52 in 1998, the supreme court of canada in the reference re secession of quebec case took the opportunity to address these implications. in particular, it considered whether “when a people is blocked from meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession.” 53 the court declared “international law expects that the right to self-determination will be exercised by the peoples within the 49 vidmar, above n 30, at 808. 50 higgins, above n 38, p 124. 51 ibid, p 124. 52 j crawford the creation of states in international law (oxford: oxford university press 2006), p 118. 53 reference re secession of quebec (1998) 115 ilr 536. the denning law journal 129 framework of existing sovereign states and consistently with the maintenance of the territorial integrity of those states.” 54 the court went on to say that the right of external self-determination, that is secession, “arises only in the most extreme of cases and, even then, under carefully defined circumstances”.. 55 antonio cassese suggests somewhat controversially that such circumstances might be where the group in question is subject to “extreme and unremitting persecution” combined with the “lack of any reasonable prospect for reasonable challenge”. 56 the conclusion to be drawn from both international law and international practice is that there is little support for the application of self-determination as conferring the right of identifiable groups within a state to secede from a metropolitan state outside the colonial context. 57 state resistance to indigenous rights if there is little to no real possibility of indigenous self-determination being exercised to secede from the state, just why it is that states raised objections to self-determination in the declaration? in focusing on the positionality of the four states voting against approval of the declaration 58 , this article argues that the state objection was not due to any actual fear of self-determination resulting in indigenous efforts to secede from the state. rather, the objection was to self-determination as one of the class of “hard” 59 rights granted to a collective. 60 states have exhibited an extreme response to the idea of indigenous selfdetermination – even though the likelihood of any feared threat of indigenous secession is thought to be nearly zero. the threat of secession is more of an imagined fear than a real and potential threat to state territorial integrity. it is not the thought of indigenous groups having some level of control over their own political and cultural affairs which states are reacting to when they express resistance to the notion of indigenous self-determination. states have 54 ibid, 582. 55 (1998) 115 ilr 536, 584. 56 a cassese self-determination of peoples (cambridge: cambridge university press 1995), p 120. 57 crawford, above n 52, p 127. 58 australia, canada, new zealand and the united states. 59 see section 2 above. 60 see generally s lightfoot “selective endorsement without intent to implement: indigenous rights and the anglosphere” (2012) 16(1) the international journal of human rights 110. indigenous self-determination 130 expressed similar although perhaps more muted concerns about concepts of indigenous autonomy and self-government. 61 the close relationship between indigenous internal self-determination and autonomy is expressed in the final and approved version of the undrip. article 4 explains that autonomy is itself is an exercise of the right to selfdetermination. article 4 provides that indigenous autonomy is granted in “internal and local affairs...” 62 through an exercise of self-determination. some researchers have hypothesised that state resistance to any form of indigenous self-government, autonomy or self-determination is rooted in roots of state policies of assimilation. while these policies have largely been abandoned at least officially, it must be questioned whether the abandonment has reached levels of practice as opposed to official rhetoric. notions of indigenous autonomy are at odds with assimilation and might be viewed by states as being a part of the state itself. 63 this perceived rejection of the state may in turn fuel state rejection of self-determination, where indigenous self-determination is seen as being at odds and a threat to state identity as liberal state where individual rather than group autonomy is one of the core defining values. 64 this is particularly true of the jacobin form of liberal states where “loyalty to the state and the so-called state-nation [is]... more important than loyalty to subgroups. the ideal of equality, also implies cultural equality, that is the eradication of all forms of cultural differentiation.” 65 thus, indigenous claims to rights to differentiate themselves from the state and simultaneously to call upon the state to promote and safeguard those rights causes a crisis of identity for jacobin liberal states. the threat to state identity is not only one of a perceived threat to territorial integrity, but of the spectre of a clearly distinct indigenous polity within the state boundaries that states must both ensure are included and yet are able to maintain their distinctness. 66 despite that potential threat, daes observes: 61 ibid, table 1, 117-118. 62 article 4, united nations declaration on the rights of indigenous peoples. 63 h hannum “new developments in indigenous rights” (1988) 28 virginia journal of international law 649 at 657. 64 see e bornman “national symbols and nation building in post-apartheid south africa” (2006) 30 international journal of intercultural relations 383. 65 ibid, at 386. 66 see united nations declaration on the rights of indigenous peoples, in particular articles 2, 3, 4, 5, 8, 9, 16, 17, 19, 33 and 38. the denning law journal 131 “...although few governments are yet prepared to concede the right to self-determination to indigenous peoples, most of them have already accepted the subsidiary or substitute right of internal selfgovernment.” 67 just what level of acceptance this “substitute” principle has been given is suspect, given the continued state resistance to a full domestic implementation of all of the undrip. 68 yet daes is at pains to explain that the form that indigenous autonomy would take is not the sort that would provide any real threat to even jacobin liberal state identity. “the goal is neither complete independence of indigenous peoples nor the kind of local autonomy which would lead to social or political isolation and continuing vulnerability of indigenous peoples. what most indigenous peoples seek, and the united nations has so far endorsed, is a hybrid of autonomy. indigenous peoples must be able to participate effectively in the decision affecting their destiny at all levels, enjoying a large measure of control over their internal affairs, and in equitable sharing of power in national politics.” 69 some measure of integration with the state is arguably then beneficial to indigenous groups, and as noted, the undrip creates an obligation for states to ensure that indigenous individuals and groups are not isolated from the state. lightfoot‟s chart 70 again reveals the expression of state uneasiness with the concepts of internal self-government. this is demonstrated by the state stance that the undrip is only aspirational and not binding, thus not evincing any requirements that the state actually do anything to enact the undrip content. 71 alternatively there is insistence that the state‟s laws and policies are already in compliance with undrip, again meaning that the state must not take any action to enact undrip. 72 to take action that gave credence to separate and distinct communities would be a threat to the jacobin form of the liberal state. that would shift the state form to that of the syncretistic state where: 67 e a daes “the concepts of self-determination and autonomy of indigenous peoples in the draft united nations declaration on the rights of indigenous peoples” (2001) 14 st thomas law review 259 at 269. 68 see lightfoot, above n 60, at 110. 69 daes, above n 67, at 269. emphasis in original. 70 lightfoot, above n 60, table 1 at 117-118. 71 ibid. 72 lightfoot, above n 60, table 1, at 117-118. indigenous self-determination 132 “...ethnic, racial and other groupings [are] the building blocks of a larger unity and involves policies of multiculturalism that guarantee the cultural rights of ethnic or other minorities.” 73 state acceptance of indigenous rights is in itself not an either-or choice. it is not a simple matter of a state either rejecting or accepting rights. there are varying levels of acceptance and effectiveness that states give to any international norm within domestic law, policy and institutions. the varying levels of acceptance are referred to as “normative salience.” different scales measuring the level of normative salience have been developed, with one of the most detailed being that developed by loren cass. 74 his eight level scale indicates state responses from explicit rejection of a norm to such acceptance that the norm has a “taken-for-granted” 75 quality within domestic institutions, law and policy. 76 73 bornman, above n 64, at 386. 74 l cass the failures of american and european climate policy: international norms, domestic politics and unachievable commitments (state university of new york press, albany, 2006). 75 ibid, p 10. 76 “1. irrelevance: national leaders do not acknowledge the emergent international norm in any way, and it is not a part of the foreign or domestic policy dialogue. national leaders do not even feel compelled to justify actions that contravene the proposed norm. “2. rejection: national leaders acknowledge a proposed norm but reject it. the state will likely support an alternative norm and engage in debate with supporters of the less desirable alternative. the dialogue is conducted primarily on the international stage, and the normative debate has not entered mainstream domestic political dialogue. “3. domestic relevance: national leaders continue to reject the proposed international norm, but it has entered the domestic political dialogue. at this point the government faces pressure from both international and domestic actors to affirm the emergent norm. “4. rhetorical affirmation: national leaders affirm the international norm as a result of political pressure from within and/or internationally. the norm is now a part of the domestic and foreign policy dialogue, but it has not been translated into foreign or domestic policy changes. “5. foreign policy impact: national leaders adjust the state‟s foreign policy to affirm the norm and may support its inclusion in international agreements. the change in position may be the result of persuasion of the appropriateness of the emergent norm or through domestic and/or international coercion. however, national leaders continue the denning law journal 133 the question arises as to why states are motivated to internalise international norms at any level. scholars have offered very similar views as to why states adhere to international norms within their domestic institutions and laws. given that international law is sometimes presented as an obligation voluntarily taken on by states, from that viewpoint it might seem reasonable to assume that states comply with international norms because they want to. but, in fact, it is not so simple as that. the conception of international law as a body of voluntary state members is contested. other conceptions include the international community is one of power and politics, where in an age of globalisation, membership and a good reputation are necessary to receive favourable treatment in the international community across a range of activities from bank loans to trade arrangements. 77 accordingly, the factors that affect whether that states doand do not – achieve high normative salience for any particular international norm are complex. alexander wendt argues there are three reasons for states to adhere to international norms within their domestic laws and institutions: “because they are forced to, because it is in their self-interest, and because they perceive the norms to be legitimate.” 78 to reject changes in domestic policy to implement the norm‟s behavioral imperatives, or domestic actors continue to reject the norm and block domestic changes required by the norm. “6. domestic policy impact: national leaders and other actors begin to justify changes in domestic policy on the basis of the international norm. at this point, the policy changes typically serve other purposes as well, but the norm provides additional justification for the changes. the norm is fully embedded in the domestic political dialogue, but the onus is still on the supporters of the norm to justify policy changes that may adversely affect domestic interest groups. “7. norm prominence: domestic interest groups that wish to continue policies or pursue new initiatives that contradict the norm must now justify the violation of the norm. the burden of proof has shifted and the norm is becoming embedded in the domestic institutional structures and policies of the state. “8. taken for granted: the norm has become embedded in the domestic institutional structure of the state, and compliance with the norm is nearly automatic.” cass, above n 74, pp 9-10. 77 see o hathaway “between power and principle: an integrated theory of international law” (2005) 72 university of chicago law review 469, and in particular her discussion on “collateral benefits” for states in joining a human rights treaty at 474 at 507-511. 78 a wendt social theory of international politics (cambridge university press, 1999) 250. indigenous self-determination 134 this is consistent with the cass scale, where different levels of normative salience are reached in response to political pressure, domestic and international advocacy, and the interest of the state. many norms are given effect because a state determines that the norms are legitimate. 79 yet, as wendt points out, not all norms are internalised by a state on the basis of being seen as legitimate. a state might internalise a norm that it views to be in conflict with its own values or identity, but does so because of political expedience (which wendt expresses as in the self interest of the state) or through compulsion. state resistance to the norm of indigenous selfdetermination can be examined through understanding its place on the scale of normative salience and on state expressions for accepting or resisting the norm. cass points out: “… domestic institutional structures, political culture and historically contingent choices will be critical intervening variables in the translation of international norms into domestic policy.” 80 a high level of salience cannot be achieved without these changes in not only laws, but domestic institution and policy as well. 81 provisions of the undrip will not be effective unless given high salience at the domestic level – something that is highlighted in comments made by the current united nations special rapporteur on indigenous issues, professor james anaya: “for the declaration to be fully operative, states must pursue a range of affirmative, special measures that engage the various institutions of law-making and public administration. this involves a complex process of legal and institutional reform, judicial action, specific policies, and special reparation procedures. it is a process that requires states’ full political engagement and financial commitment, and which is not free from obstacles and difficulties of all sorts.” 82 real change within domestic institutions and policies has to occur in order to achieve that level of salience that gives effect and access to declaration rights at the domestic level. 83 79 j brunee and s toope “international law and constructivism: elements of an interactional theory of international law” (2000) 39 columbia journal of transnational law 20 80 ibid, p 2. 81 cass, above n 74. 82 a/hrc/9/9/9 (n 2) para 87. emphasis added. 83 anaya‟s comment: “implementing the declaration will normally require or may be facilitated by the adoption of new laws or the amendment of existing legislation at the domestic level.... also normally required will be new regulatory frameworks, which in most countries are still lacking or are insufficient. it is important to note that the the denning law journal 135 sheryl lightfoot argues that states indorse indigenous rights for a variety of political reasons. her research points to the changing positions of the four “no-states” which have all subsequently changed their opposition to the undrip to one of at least rhetorical support. however, even in voicing support for the undrip, all four of the states continue to express opposition to some of the rights within the undrip, including its self-determination provisions, albeit those have been limited to internal self-determination and the ability of an indigenous group locating the right to secede from the state nullified by article 46 of the undrip. 84 states are willing to endorse indigenous “soft rights” 85 such as “language and culture” 86 at the same time that there is a rejection of rights seen as “hard rights” 87 that states believe “would threaten the liberal framework and the sovereignty status quo.” 88 lightfoot indicates that those norms which are seen by the state as threatening to liberal states are rejected, a view that is also given by hale in his assessment of variance in state acceptance of some but rejection of other indigenous norms. 89 hale notes the indigenous norms which states are receptive to: “language, politics, spirituality, intellectual production and educational reform” 90 those rights that are compatible with the identity of a liberal state are endorsed – those that threaten it are rejected – and those that threaten it are invariably those that provide for “widespread collective empowerment.” 91 certainly, the right of self-determination, whether cast as internal or external, is within that class of rights that are both collective and empowering. self-determination for indigenous groups is thus rejected and resisted by the state. the state sees the grant of self-determination as threatening to its very legal and institutional transformations required by the declaration are usually not sufficiently addressed by enacting specific “indigenous laws”, as many states have done, but rather will normally also involve the transformation of broader legal structures in key areas. a/hrc/9/9 11 august 2008 report of the special rapporteur on the situation of human rights and fundamental freedoms of indigenous people. emphasis added. 84 article 46, un declaration on the rights of indigenous peoples. 85 lightfoot, above n 10, at 103. 86 ibid. 87 ibid. 88 ibid. 89 c hale “does multiculturalism menace? governance, cultural rights and the politics of identity in guatemala” (2002) 34 journal of latin american studies 485 at 520. 90 ibid. 91 ibid. indigenous self-determination 136 existence – not in terms of an actual secession of territory, but to its identity in liberalism, because the idea of collective rights is an anathema to the liberal nature of the state‟s existence, and collective rights which empower a group. that there is no real likelihood of an effort of an indigenous group to secede from the state, and that modern international law is not supportive of the existence of such a right, does not temper state resistance to the notion of indigenous self-determination. state resistance is not located in the fear of secession. the fear and resistance to indigenous self-determination is at a more abstract level, seen as a threat to the form and identity of the state itself due to the nature of the right – not that the right might ever be exercised. conclusion as this analysis demonstrates, modern international law would provide little support for indigenous groups to exercise a right to secession from the metropolitan state. this is unlikely to be seen as a legitimate exercise of the right to external self-determination. the right to secede from the state is available in only limited circumstances. the right to even external selfdetermination does not carry with it an automatic right to secede from the state. but state resistance to indigenous self-determination in the undrip was not grounded in a poor understanding of international law. it is difficult to fathom that all four “no-states” were misinformed on the international law‟s view on the very narrow circumstances in which a right to secede from the state can be exercised with approval and acceptance from the international community. this raises a question as to why states positioned themselves in opposition to the provision of a right to self-determination to indigenous groups. rather than a well-founded fear that indigenous groups would in fact exercise this to secede from metropolitan states, this is in fact reflective of the resistance that states have to a class of rights that they deem to be too empowering to indigenous groups and thus threatening to the relationship of state dominance and domestic control of indigenous groups. a move of indigenous rights from domestic to international rights threatens to displace states from a position of unchallenged control over indigenous groups and individuals within their borders. the displacement of the state may again be more symbolic than real, as the undrip is heavily focused on state provision of rights to indigenous peoples, for all that it is a document of international law. but even to that end, state resistance demonstrates that there is a lack of real acceptance of the international law principles of self-determination and autonomy to replace the domestic principles, laws and policies of assimilation. state acceptance of indigenous rights is both reluctant and piecemeal. accepting “hard rights” for the denning law journal 137 indigenous groups and giving them a high level of salience within domestic frameworks would mean a wholesale change in state identity. this means that the “no-state” resistance to an effective recognition of indigenous rights within their domestic frameworks is entrenched and will be difficult to overcome. an examination of state positionality on indigenous self-determination reveals that behind state rhetoric and explanation lays a much more complex set of reasons – reasons steeped in state identity and the view of indigenous rights as a threat to a liberal state identity. given that states view that highly salient indigenous rights pose a risk to state identity, it is unlikely that the stance that states have taken regarding indigenous self-determination will change. only a reformation of state identity from jacobin liberalism to a syncretistic form of multiculturalism is likely result in state acceptance of other than notional and aspiration rights for indigenous peoples. diminished responsibility and intoxication: interpretation, policy and authority in r v dietschmann the denning law journal 19 diminished responsibility and intoxication: interpretation, policy and authority in r v dietschmann edward phillips* introduction the latest decision of the house of lords in relation to the interpretation and application of the defence of diminished responsibility in r v dietschmann1 is to be welcomed as clarifying the issue of what may be regarded as an adequate judicial direction to the jury. the analysis of the defence has been problematic ever since its introduction in s 2 of the homicide act 1957.2 one possible explanation of the difficulties the defence has caused is the fact that it is an importation from scots law, intended to ameliorate the dissatisfaction with the general defence of insanity. accordingly, the defence has been shoe-horned into the complex common law in relation to homicide and sits uneasily with it.3 be that as it may, a number of problems arising out of the introduction of the defence have never been satisfactorily resolved. while it is not the intention of the present article to offer a general review of the defence, the following points may be usefully made. the first pertains to the statutory definition of diminished responsibility as an “abnormality of mind”. this is restricted by the words contained in the parenthesis to s 2(1) as “arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury”. the definition is predicated on a psychiatric view of the * principal lecturer, law department, university of greenwich. 1 [2001] ewca crim 2052; [2003] ukhl 10. 2 s 2(1) homicide act 1957: “where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such an abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing”. ss (2) shifts the burden of proving diminished responsibility on to the defence, while ss (3) provides that the effect of the defence if successful is to reduce the charge to that of manslaughter. subsequent case law has preferred to use the term voluntary manslaughter, to distinguish it from the various categories of involuntary manslaughter. 3 in r v spriggs [1958] 1 all er 300 at 303, lord goddard cj described the defence as “a novelty in english law”. the denning law journal 20 causes of mental illness, thus making expert evidence crucial.4 moreover, the definition incorporates both psychological causes (in terms of “syndromes”) as well as physiological causes (the underlying “organic” causes). this, however, is not sufficient of itself. it then becomes necessary for the jury to apply the remainder of the test in s 2(1), i.e. that the abnormality of mind had the causative effect of substantially impairing the mental responsibility of the defendant for his actions.5 this becomes “a moral-legal judgment”6 entirely separate from that of forensic psychiatry. it would appear that the judicial approach, in practice, has been to treat this in a rather elastic fashion. ashworth puts it as follows: “the wording with which the homicide act 1957 introduced diminished responsibility is rather unsatisfactory, but judges, counsel, doctors, and juries have approached it with a compassionate pragmatism rather than with the rarefied verbal analysis too frequently encountered in english criminal law.”7 this may be welcomed as a compromise of the policy issues involved. however, the analysis may be viewed rather differently, in the manner suggested by norrie: “the defence intermingles scientific and metaphysical discourses in a way that produces an amelioration of the law’s narrowness but on the basis of an intellectual muddle and compromise.”8 this is clear from cases such as ahluwalia where a “major depressive 4 the requirement of expert medical evidence for insanity is provided for in s 1, criminal procedure (insanity and unfitness to plead) act 1991. there is no specific statutory equivalent for diminished responsibility although dix (1981) 74 cr app r 306 makes it clear that a jury may not return a verdict of voluntary manslaughter on the ground of diminished responsibility unless there is medical evidence that one of the causes specified in s 2(1) exists. 5 byrne [1960] 3 all er 1 makes it clear that the medical testimony is not conclusive: the jury is not bound to accept the medical evidence and may consider the evidence as a whole. 6 alan norrie crime, reason and history (london butterworths, 2nd edn 2001) p 183. 7 andrew ashworth principles of the criminal law (oxford oup, 3rd edn 1999), p 288. 8 norrie, op cit, p 184. the denning law journal 21 disorder” was considered capable of coming within the terms of the section.9 second, and leading on from this, there is no clear indication of the way in which the partial/specific defence of diminished responsibility and the general defence of insanity are to be reconciled.10 both are, of course, legal and not medical concepts,11 but there is no rational and satisfactory manner of deciding when a mental “disorder”, used in its widest terms, is properly to be treated as an abnormality of mind, and when an abnormality of mind shades into insanity. there have been valiant judicial attempts at a drawing the distinction. in byrne lord parker cj ruled: “‘abnormality of mind’, which has to be contrasted with the time-honoured expression in the m’naghten rules, ‘defect of reason’, means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal.”12 in byrne itself, three medical experts testified that the defendant, who had killed and mutilated a young woman, was a sexual psychopath suffering from “perverted sexual desires”.13 nonetheless, all three experts were of the opinion that he was not insane within the technical requirements of the m’naghten rules, although it could be said that he was suffering from an abnormality of mind. while a trained legal mind may be capable of appreciating the distinction, based as it is on judgments (not without controversy) of psychopathy, it is doubtful that the ‘ordinary human beings” who sit on the jury are capable of doing so. this is even more so when the distinction would be equally incomprehensible to any psychiatrist called upon to testify for either the crown or the defence. according to norrie: “the law is essentially based on a conflict between two discourses while ‘abnormality of mind’ requires the testimony of psychiatrists (although it is not a proper psychiatric 9 [1992] 4 all er 889 at 900, per lord taylor cj. 10 the position is further complicated by the fact that, under s 6 of the criminal procedure (insanity) act 1964, in those situations where the defence elects to present the defence of diminished responsibility, the prosecution may counter this by alleging insanity instead, or vice versa. 11 this was a point made clear by the trial judge to the jury in the case under discussion; see [2001] ewca crim 2052, para 10. 12 [1960] 3 all er 1 at 4; emphasis added. 13 ibid at p 3. the denning law journal 22 concept), ‘substantial impairment of mental responsibility’ requires the moral judgment of the jury, and there is in logic no way of inferring the one from the other.… the question of the mental responsibility of the accused raises a metaphysical question of the freedom of the will which scientific discourse does not recognise and cannot answer.”14 to be fair, this is a matter recognised by the courts in byrne, lord parker cj acknowledged that the issue of whether the mental abnormality of the defendant impaired his mental responsibility was “incapable of scientific proof”;15 an accurate enough observation but not one guaranteed to advance the jury’s understanding or to assist in dealing with the question at hand. scots law may be prepared, reasonably enough, to treat diminished responsibility as “partial insanity”. in hm advocate v braithwaite, lord cooper, relying on a line of authority, explained diminished responsibility to a scottish jury as requiring “a state of mind which is bordering on, though not amounting to, insanity”.16 the english cases, however, are equivocal and sometimes even disapproving. while the court of appeal in byrne was willing to tolerate terms such as “partial insanity” and “the borderline of insanity”, archbold notes that it “will sometimes be inappropriate to direct the jury that the test is the borderline of insanity”17 while in seers the court of appeal made it clear that there would be circumstances where this would even amount to a material misdirection.18 referring again to the finding of the depression disorder in ahluwalia, this could not in any way constitute either partial or borderline insanity. according to j c smith: “diminished responsibility has been pleaded with success in cases where one would have thought there was no chance of a defence of insanity succeeding – mercy killers, deserted spouses or disappointed lovers who killed while in a state of depression, persons with chronic anxiety states and so on.”19 clearly, a direction based on partial or borderline insanity in cases such as these would amount to a misdirection. however, does permitting the defence in 14 norrie, op cit, p 183. 15 op cit, p 5. 16 [1945] sc (j)55 at 57. 17 archbold para 19-73. 18 (1984) 79 cr app r 261. 19 j c smith smith and hogan on criminal law, (london: butterworths, 10th edn 2002) p 236. the denning law journal 23 the above situations not amount to a clear distortion of the language of s 2(1)? third, a major difficulty arises when the defendant’s possible abnormality of mind is accompanied by intoxication. the defence of intoxication itself remains problematic in terms of the policy to be adopted in the juridical allocation of culpability. the present broad-brush approach of utilising the distinction between crimes of basic and specific intent, is even at its best, open to sceptical analysis.20 however, the scale of the complexity increases where the courts are faced with a defendant who, in addition to an abnormality of mind, has also voluntarily consumed either alcohol or drugs it was this particular aspect of the defence of diminished responsibility that arose for resolution in the case of r v dietschmann. r v dietschmann: facts21 the defendant, anthony dietschmann, had embarked on a sexual relationship with a woman named sarah who was in fact his aunt and who was more than twice his age. she was, moreover, a drug addict. the relationship caused the defendant to be ostracized by the rest of the family and lasted for about six months from july 1998 to november 1998. their cohabitation ended when the defendant was remanded in custody for an unrelated offence. sarah visited, wrote to him in prison and gave him a watch. while he was still in custody, sarah resumed her drug-taking. the defendant gave her an ultimatum: he would end their relationship unless she solved her drug problem. he even went so far as to cut his wrists, although without fatal consequences sarah died in june 1999 while the defendant was still in custody. although a post-mortem later revealed that she had died from natural causes, the defendant firmly believed that she had committed suicide as a result of his being in custody as well as because of the ultimatum he had given her. he was allowed to attend her funeral and a couple of weeks later was released from remand. as this recital indicates, there were clear indications that the defendant was, to put it mildly, under considerable mental strain. after his release on the 2 july 1999, the defendant began to drink heavily. on the 13 july he was prescribed sleeping tablets and an anti-depressant, prozac, by his gp. the later testimony of his sister was that throughout this period he was not behaving normally and was very insecure and upset. on the 16 and 17 july there was evidence of considerable drinking. on the evening of 20 the position may be summarised as follows: intoxication cannot be a defence to a crime of basic intent, while it may be taken into account in crimes of specific intent such as murder. see dpp v majewski [1977] ac 443. 21 the following facts are taken from the account in the reports of the court of appeal and the house of lords. the denning law journal 24 the 17 july, the defendant and two companions had embarked on a drinking spree. by the time the eventual victim, nicholas davies, joined them, a bottle of whisky had been consumed while the defendant had also had a couple of pints of cider. further alcohol was then purchased and drunk. later, the defendant would tell the police that on the day in question he had drunk two bottles of cider, a bottle of whisky and about 8 cans of lager. the defendant and davies started dancing, swinging their arms and jumping up and down. the watch given to the defendant by sarah as a final gift was broken during this frenetic activity. the defendant alleged that davies had broken the watch deliberately and punched him several times, insisting that he pay for it to be repaired. davies refused. there then followed a particularly vicious and intense assault. even after davies stopped moving the defendant continued the assault, stamping and kicking his head, side and chest over 30 times throughout this episode the defendant kept repeating that davies had “pissed on sarah’s grave” and deserved to die. then he and another of the men (who had been present but had not taken any part in the assault) rolled the body in a rug and moved it into the next room. a forensic examination later revealed that davies had thirty-one head injuries as well as injuries to the back, neck, chest, arms and legs his nose was broken on both sides, the brain was damaged and ribs were broken in seven places. two further incidents should be noted at this point. the first was the defendant’s repeated, and unexplained, question of “where’s the ticket?” directed to the dead body. second, the defendant telephoned his sister and told her that he had killed someone. his explanation was that he had been walking through a crematorium and had seen davies pissing on the graves his sister’s testimony was that the telephone conversation lasted for about 47 minutes and that the defendant did not make much sense. the defendant then left the scene of the killing. when found by the police, he was disheveled and smelt of alcohol. he was, however, able to give his correct name and was cautioned and arrested. he was examined by a police surgeon who, oddly, certified the defendant as fit for detention and interview. during the interview the defendant elected to exercise his right to remain silent on his solicitor’s advice. instead, he read out a prepared statement. this claimed that he had seen davies urinate on rosebushes in the crematorium, which he thought disrespectful. he repeated his claim that davies had broken the watch sarah had given him and felt that this was “taking the piss out of sarah”. he stated that the next thing he could recall was seeing davies on the floor; he checked for breathing and a pulse but he was dead. the defendant was charged with murder but chose to plead voluntary manslaughter as a result of diminished responsibility. the denning law journal 25 the defendant’s testimony at trial the central facts relied on by the crown were admitted. in particular, the defendant repeated his belief that the watch had been broken by the victim and that the victim had been urinating on sarah’s grave. he also testified that he had come to realise that the urinating incident had not actually happened. he further testified that, apart from the watch being broken and throwing a punch at davies, he had no recollection of the events in question. however, he accepted that he must have been responsible for the injuries22 it is worth noting that on his own testimony, the defendant admitted to “being angry but not fuelled by drink”23 and that he was “not badly affected by alcohol”24 at the time of the attack. the reason for this admission, presumably, was in order to avoid the conclusion being drawn that the reason for the killing was the intoxication, rather than any underlying abnormality of mind. expert evidence lord parker cj in byrne had opined that while the jury are not bound to accept the medical evidence, the “aetiology of the abnormality of mind … does, however, seem to be a matter to be determined on expert evidence”.25 in the instant case two psychiatrists tendered medical evidence, one each for the crown and for the defence. it may be convenient to set out their testimony as follows: dr palmer (for the crown): dr palmer had examined the defendant within three days of his arrest. she came to the conclusion that he was suffering from an abnormality of mind at the time of the offence. this took the form of an adjustment disorder. she was also of the opinion that there was present an alcohol dependence syndrome. the psychiatrist called for the defence had come to the conclusion that the defendant had experienced a transient psychotic state. dr palmer did not agree with this view. 22 it would be interesting to speculate as to whether it would have been possible, on the basis of the facts and the defendant’s testimony, to have run an insanity defence within the first limb of the m’naghten rules, in that he did not know either the nature and quality of his acts. 23 [2001] ewca crim 2052 at para 6. 24 [2003] ukhl 10 at para 12. 25 [1960] 3 all er 1 at 4. the denning law journal 26 dr el azra (for the defence): dr el azra had examined the defendant about eight months after his arrest. he agreed with dr palmer that he was suffering from an abnormality of mind but did not consider that there was an alcohol dependence syndrome. instead, he formed the view that the defendant had experienced a transient psychotic state. it will be noticed that there was an essential agreement between the two psychiatrists that the defendant had been suffering from an abnormality of mind, even though there was disagreement as to its precise cause. the first limb of s 2(1) was, at least in the experts’ opinion, satisfied. the next element that needed to be satisfied was whether this abnormality of mind “substantially impaired his mental responsibility”. the generally accepted approach to this issue was set out in byrne as drawing a distinction between a defendant who was capable of resisting the impulse to kill but who did not and the defendant who was incapable of resisting such an impulse. dr palmer testified that although in her view the defendant was suffering from alcohol dependence syndrome (sufficient to amount to an abnormality of mind), the alcohol had operated merely to remove his disinhibitions and facilitated the release of aggression. it was her opinion that the defendant had not lost touch with reality and that if he had been sober he would probably have exercised restraint. although the issue was not put in this way by either the court of appeal or the house of lords, her testimony effectively amounted to an opinion that this defendant was in the position of someone who did not, rather than could not, control his impulses. dr el azra, was of the view that the defendant’s transient psychotic state meant that the he had lost touch with reality and falsely believed that his victim deserved to die. his opinion was that even if the defendant had had no alcohol, he would probably have killed davies as he did. in short, dr el azra’a opinion was that this was a defendant who could not control his impulse to kill. the application of the defence of diminished responsibility in those situations where intoxication had been present, was to ask: would the defendant have killed if he had been sober. this analysis is an attempt to separate the effect of the intoxication from the “underlying causes” of any abnormality of mind. to this question dr palmer’s answer was that neither the adjustment disorder nor the alcohol dependency syndrome would have prevented the defendant from forming the requisite mens rea, i.e. the defendant would not have killed if he had been sober.26 dr el azra took a diametrically opposite view. the intoxication was irrelevant; the defendant would have killed even if he had been sober.27 26 [2003] ukhl10, para 14. 27 ibid para 13. the denning law journal 27 directions to the jury needless to say, it was the content of the trial judge’s directions to the jury that formed the basis of the instant appeal. in early cases such as spriggs, it was reckoned sufficient for a trial judge to simply read the s to the jury and invite them to apply the law.28 ever since the leading decision in byrne, this was no longer true; the trial judge is under an obligation to adequately guide the jury.29 the trial judge summarised the medical evidence and directed the jury as follows: “as you have been told, diminished responsibility is not a medical diagnosis, it is a legal concept which ultimately only a jury can decide. all that doctors can do is to assist you with the benefit of their expertise and experience. as experts they are permitted to express opinions but this is trial by jury and you, the jury, must decide whether or not diminished responsibility has been established.”30 both the court of appeal and the house of lords saw no reason to criticise this part of the direction. in relation to the effect of intoxication, the direction was in two parts the first related to the issue raised by dr palmer’s opinion that the defendant was suffering from an alcohol dependence syndrome, while the second dealt with the impact of the intoxication on the abnormality of mind: “first, if you are persuaded by dr palmer that there was an alcohol dependence syndrome, you include that in the abnormality of mind but only if the defendant’s drinking had become involuntary, that is to say he was no longer able to resist the impulse to drink. secondly, this is an issue of crucial importance in this case – once you are satisfied that there is an abnormality of mind, whether on the basis of an adjustment disorder alone or coupled with a transient psychotic state or alcohol dependence syndrome, or however, you must 28 “i cannot see that a judge dealing with this matter can do more than call the attention of the jury to the exact terms of the s parliament has enacted and leave the jury to say whether, on the evidence, they are satisfied that the case comes within the s or not”, per lord goddard in spriggs [1958] 1 all er 300 at 303. 29 [1960] 3 all er 1. 30 [2003] ukhl 10 at para 15. the denning law journal 28 ask these questions: have the defence satisfied you on a balance of probabilities that if the defendant had not taken drink (1) he would have killed if, in fact, he did; and (2) he would have been under diminished responsibility when he did so. if they have satisfied you that the answer to both questions is “yes” then this is a case of diminished responsibility. but if the answer to either question is “no”, then it is not.”31 it is worth noting, as was pointed out by the court of appeal when dealing with the merits of the appeal, that counsel as well as the jury were provided with the trial judge’s directions on murder and manslaughter in writing; no objections were actually made at trial to those directions.32 the appeal chronology the jury rejected the defence and convicted the defendant of murder. the defence sought to appeal on the basis that the above direction was flawed. however, leave to appeal was refused by the single judge. this went to appeal before the full bench of the court of appeal.33 the skeleton argument presented at this point submitted that both parts of the direction, above, were not appropriate.34 mr. gibson, for the appellant, argued that the possibility that the intake of alcohol was involuntary was something that should have been put more forcefully to the jury. it was also submitted that a reconsideration of the authorities was necessary. in particular, criticism was made of the test suggested in tandy35 (which was to the effect that the question of voluntariness was to be tested by reference to the test of whether the first drink was voluntary or not); this test was submitted to be illogical. waller lj was willing to accept that all the issues required consideration and granted leave to appeal. in particular, his lordship accepted that there was “some measure of force” in the submissions relating to tandy.36 the court of appeal, however, dismissed the appeal.37 the house of lords then granted an application by the defendant seeking leave to appeal to the house. this appeal was heard, and, finally, 31 the directions are taken from the judgment of the court of appeal [2001] ewca crim 2052 at para 10. 32 ibid para 8. 33 [2001] ewca crim 502. 34 see, in particular, para 8–9. 35 [1989] 1 all er 267. 36 [2001] ewca 502 at para 9. 37 [2001] ewca crim 2052. the denning law journal 29 allowed.38 decision of the court of appeal the judgment of the court of appeal was delivered by rose lj, sitting with garland and sachs jj. in a ruling, marked by its brevity, the following points were made. the expert evidence the defence expert, dr el azra was of the opinion that the defendant was suffering an adjustment disorder and a transient psychotic state. the court of appeal noted that defence counsel had conceded that the jury had rejected this evidence. defence counsel had submitted, however, that the manner in which the jury had been directed, with regard to the possibility that the alcohol dependence could have rendered the actions of the defendant involuntary, had been inadequate. rose lj pointed out, correctly, that this was an issue which went to the evidence that had been presented.39 dr palmer, for the crown, had testified as to her opinion that the defendant was suffering from alcohol dependence syndrome. this, however, was not sufficient evidence: “the factors relied on by dr palmer as demonstrating alcohol dependence syndrome did not include either damage to the brain or involuntary intoxication arising from an irresistible craving for alcohol. the high point of her evidence, from the defendant’s point of view, was that the defendant had “a strong desire almost a compulsion” and “he couldn’t stop once he had started”. there was no evidence from dr palmer on which the jury could find that the defendant’s drinking was involuntary.”40 at first sight, this conclusion seems inconsistent with the tandy test. if the defendant’s first drink was “almost a compulsion” and “he couldn’t stop once he had started”, then it would appear that there was evidence that his drinking was involuntary. what appeared to be crucial, however, was the defendant’s own testimony which, as pointed out above, demonstrated a clear desire to downplay the part played by alcohol. this had unfortunate consequences for the appeal. according to rose lj: 38 [2003] ukhl 10. 39 [2001] ewca crim 2052 at para 15. 40 ibid. the denning law journal 30 “the defendant did not suggest that he had a craving: his evidence was that, on this evening, he had drunk rather less than usual. accordingly, the evidence in this case was not capable of establishing alcohol dependence syndrome as being an abnormality of mind within s 2.”41 this was a conclusion supported, according to rose lj, by dr palmer’s further opinion that the alcohol dependence syndrome did not substantially impair the defendant’s mental responsibility. issue may be taken on this point. first, the ultimately crucial question as to the existence of substantial impairment is a decision to be made by the jury. this would be dependent on a proper direction. since both the experts had concluded that there was an abnormality of mind (dr palmer basing this on the alcohol dependence syndrome; dr el azra basing this on a transient psychotic state), the trial judge should have given proper directions and left it to the jury. second, it could be argued that while it was proper for the experts to give their opinion as to the first limb of s 2 (the possible existence of an abnormality of mind), the experts should not have been asked their opinion as to the second limb (whether it substantially impaired mental responsibility). under the rules of evidence, this relates to the “ultimate issue” that lies within the province of the jury. for the experts to answer this question would amount to the usurpation of the jury’s proper function, quite apart from the fact that, as byrne puts it, this is a matter “incapable of scientific proof”.42 admittedly, there is considerable doubt as to whether the evidential prohibition relating to the ultimate issue (which has been abolished in civil matters) still exists in criminal cases the criminal law revision committee had recommended abolition43 but this had never been enacted. the prevailing view has been that such questions may be permitted, and the answers received but only if the jury is properly directed that they are entitled to disregard the opinion. this is an unsatisfactory position. a jury cannot but be influenced unduly by expert evidence on matters as complex as mental capacity. moreover, there was here a submission that this proper direction was lacking. the decision in tandy in granting leave to appeal, waller lj had accepted that there was some force in the submission that the decision in tandy needed to be reviewed. rose lj took 41 ibid. 42 below n 45. 43 eleventh report (cmnd 4491), clause 43. the denning law journal 31 the view that there was no incompatibility between tandy and the previous case law: in line with those authorities, tandy established that drink is only capable of giving rise to a defence under s 2 if it either causes damage to the brain or produces an irresistible craving so that consumption is involuntary.44 in other words, a difficulty in resisting the craving is not sufficient; it has to be an inability to resist. the problem lies in distinguishing “difficulty” from “inability” when dealing with the issue of rational choice. it is, at least, arguable as to whether even a properly directed jury would be capable of drawing a distinction which is not merely semantic but raises profound questions as to a moral / blameworthy exercise of choice. moreover, the court of appeal in byrne had been willing to accept that a difficulty in exercising self-control in certain circumstances may be sufficient.45 rose lj, however, sought to distinguish this part of the case by pointing out that in byrne no question of intoxication arose or was even considered. it is submitted that this point of distinction was irrelevant. the “smith” questions in the case of gittens the court of appeal had considered the appropriate direction to be given to the jury in those situations where there was some evidence of intoxication: “[t]he jury should be directed to disregard what, in their view, the effect of the alcohol or drugs upon the defendant was, since abnormality of mind induced by alcohol or drugs is not (generally speaking) due to inherent causes and is not therefore within the s. then the jury should consider whether the combined effect of the other matters which do fall within the s amounted to such abnormality of mind as substantially impaired the defendant’s mental responsibility.”46 in his commentary on gittens, professor sir john smith qc had reformulated this ruling into what came to be referred to as the “smith questions”.47 the consequent judicial reliance on this formulation had converted it into, to all practical purposes, a model direction. the trial judge in the instant case had followed this practice. it is worth setting out the questions 44 [2001] ewca crim 2052, para 13. 45 byrne [1960] 3 all er 1, 5, at para d e. 46 gittens (1984) 79 cr app r 272, at 277. 47 commentary [1984] crim lr 553. the denning law journal 32 again: “… you must ask these questions: have the defence satisfied you on a balance of probabilities that if the defendant had not taken drink (1) he would have killed if, in fact, he did and; (2) he would have been under diminished responsibility when he did so. if they have satisfied you that the answer to both questions is “yes”, then this is a case of diminished responsibility. but if the answer to either question is “no”, then it is not.”48 counsel for the defendant now submitted that professor smith had misunderstood the decision in gittens he further submitted that the “smith questions” placed undue pre-eminence to causation, which is not the same thing as impairment of mental responsibility. the essence of the submission was that the “smith questions” could operate only if it was first accepted that an abnormality could impair mental responsibility if, and only if, it was the sole cause of the killing. it was contended that such an interpretation was unsupported either by the act itself or the cases. rose lj dismissed the submissions on a number of grounds49 first, in his judgement the “smith questions” accurately reflected the decision of the court of appeal in gittens second, in subsequent cases (such as atkinson50 and egan51) the “smith questions” were not only expressly approved but the challenge to their compatibility with the decision in gittens was firmly rejected. these decisions were binding on the present court. third, as noted above, there has to be an inability, not just a difficulty, in exercising self-control. on this basis rose lj ruled that there was no grounds for regarding the conviction as unsafe and dismissed the appeal. decision of the house of lords52 having concluded that the decision of the court of appeal raised a point of law of general importance which ought to be considered by the house of lords, the certified question was as follows: (1) does a defendant seeking to prove a defence of diminished 48 [2001] ewca crim 205, at para 10. 49 ibid at para 13. 50 (1985) cr app lr 314. 51 [1992] 4 all er 267. 52 [2003] ukhl 10. the denning law journal 33 responsibility under s 2(1) of the homicide act 1957 in a case where he had taken drink prior to killing the victim, have to show that if he had not taken drink (i) he would have killed as he in fact did; and (ii) he would have been under diminished responsibility when he did so? (2) if not, what direction ought to be given to a jury as to the approach to be taken to self-induced intoxication which was present at the material time in conjunction with an abnormality of mind which falls within s 2(1) of the 1957 act. lord hutton delivered the unanimous opinion of the house of lords.53 after summarising the facts and the expert evidence, lord hutton began by considering the interpretation of s 2(1) of the act and then dealt with the relevant authorities and the appropriate jury directions. interpretation of s 2(1) the starting point was simple enough. if the defendant was able to satisfy the jury that, regardless of the alcohol he had consumed, the killing was caused by an abnormality of mind which substantially impaired his mental responsibility, then he was entitled to a verdict of manslaughter. lord hutton explained the basis of his view: “i take this view because i think that in referring to substantial impairment of mental responsibility the subs does not require the abnormality of mind to be the sole cause of the defendant’s acts in doing the killing.”54 this view, which accords with the submissions that had been made before the court of appeal, is entirely consistent with s 2(1): the defendant “shall not be convicted of murder if he was suffering from such an abnormality of mind … as substantially impaired his mental responsibility…” this is a crucial point, one ignored by the court of appeal, and further explained by lord hutton: “in my opinion, even if the defendant would not have killed if he had not taken drink, the causative effect of the drink does not necessarily prevent an abnormality of mind suffered by the defendant from substantially impairing his mental 53 lords nicholls, lloyd, hobhouse and rodger all concurred. 54 para 18. the denning law journal 34 responsibility for his fatal acts”.55 in other words, and it is a point worth emphasising, even if the consumption of alcohol had played a part in the killing (i.e. the defendant would not have killed if he had not taken drink), this would not prevent an underlying abnormality of mind suffered by the defendant from substantially impairing his mental responsibility. this marks a departure from the analysis that had previously been accepted as standard practice. it is submitted that this approach is correct. a number of different situations may arise.56 first, there is the situation which arises when the defendant pleads the “defence” of intoxication. this may be taken into account in deciding whether it negates the mens rea for murder but is irrelevant to s 2(1) of the 1957 act. the second situation occurs where the defendant presents evidence that the consumption of alcohol is involuntary and represents an alcohol dependence syndrome. this may amount to the “inherent cause” or “disease” contained within the parenthesis in s 2(1). the court of appeal in the instant case had ruled that the evidence was not capable of establishing such a syndrome. while this may be open to some dispute, as argued above, this ruling was not challenged before the house of lords consequently, the attempt to review the decision in tandy had to be abandoned for the time being at least. the third situation would occur where a defendant, who may be suffering from an underlying condition of abnormality of mind, goes on to consume alcohol and then pleads the s 2(1) defence. to ignore the underlying abnormality of mind would be to require that it had to be the sole cause for the killing, instead of accepting, as a matter of causation, that it was sufficient if it was a substantial cause (i.e. anything other than a minimal cause). it was the failure by the previous cases to fully acknowledge these distinctions that had caused the confusion. review of the authorities fenton:57 here was no doubt that the alcohol had played an important part. in fact, the defendant, having consumed a large quantity of alcohol, shot and killed four people. the medical witnesses all agreed that he was suffering from an abnormality of mind based on four ingredients first, he was an aggressive psychotic with marked paranoid traits second, the various stresses to which he had been subject had produced a state of reactive depression. the 55 ibid. 56 a similar set of distinctions is drawn in wilson criminal law: doctrine and theory (london: longman, 2nd edn, 2003) p 246. 57 (1975) 61 cr app r 261. the denning law journal 35 third ingredient was the excessive quantity of alcohol with a resulting state of disinhibition and confusion. fourth, there had been a police car chase and a final sensation of being trapped. this was considered as a “last straw” phenomenon. the medical evidence was that in the absence of any of these four ingredients, the killings would probably not have occurred. lord widgery cj stated that: “the jury later disclosed in reply to an observation of the learned judge that they were unanimously of the view that the killings would not have occurred if the appellant had not had so much to drink.”58 however, this did not prevent a possible conclusion that the effect of the remaining ingredients was sufficient to cause a substantial impairment of mental responsibility. as lord hutton commented: “this was a case where it was clear that the killings would not have taken place if the appellant had not taken drink, but nevertheless the trial judge left it to the jury to consider if the combined effect of the factors other than alcohol was sufficient to amount to a substantial impairment of his mental responsibility, and the court of appeal held that the trial judge had properly left this issue to the jury.”59 turnbull (launcelot)60: the defendant had gone drinking with his victim, subsequently killing him. he sought to rely on diminished responsibility on the basis of medical evidence that he was a psychopath. this was rejected by the jury. the trial judge had begun with a direction based on fenton. then, dealing with the impact of the alcohol, the trial judge told the jury that if they took the view that, “if he had not taken drink this would not have happened, then the defence would have failed to prove that the abnormality of mind substantially diminished turnbull’s responsibility for his act in killing.”61 lord widgery, delivering the judgment of the court of appeal, refused to 58 ibid at 263. 59 para 21. 60 (1977) 65 cr app r 242. 61 ibid at 246 the denning law journal 36 accept the criticisms that were made of these directions and ruled that the jury had not been misled from the proper approach. lord hutton, did not take the same benevolent view, describing the trial judge’s directions as inconsistent with that of fenton. moreover, he ruled, the court of appeal in turnbull did not intend to lay down any principle. this was, indeed, the conclusion reached by a subsequent court of appeal in gittens. gittens:62 the defendant had been suffering from depression and had attempted to hang himself. he had been hospitalised and on a visit home, after consuming a quantity of alcohol as well as pills that had been prescribed for him, he killed his wife and step-daughter. three doctors called by the defence testified that he was suffering from an abnormality of mind which substantially impaired his mental responsibility. two of these witnesses considered that this was due to a depressive illness, the third concluded that this was due to a disorder of the personality induced by psychological injury. the expert called on behalf of the prosecution also agreed that there was an abnormality of mind but concluded that this was brought on by the alcohol and the drugs and was neither inherent nor the result of illness it is apparent that the trial judge’s directions borrowed heavily on turnbull (launcelot). this time, however, the court of appeal took a different view: “even assuming that the direction approved in reg v turnbull (launcelot) taken as a whole was correct, we consider that it is not a direction which should in future be copied.”63 lord hutton summarised the four points which emerge form the decision in gittens as follows: (i) where a defendant suffers from an abnormality of mind arising from arrested or retarded development of mind or inherent causes or induced by disease or injury and has also taken drink before the killing, the abnormality of mind and the effect of the drink may each play a part in impairing the defendant’s mental responsibility for the killing. (ii) therefore the task for the jury is to decide whether, despite the disinhibiting effect of the drink on the defendant’s mind, the abnormality of mind arising from a cause specified in subs 2(1) nevertheless substantially impaired his mental responsibility for his fatal acts 62 [1984] qb 698. 63 ibid p 701 the denning law journal 37 (iii) accordingly it is not correct for the judge to direct the jury that unless they are satisfied that if the defendant had not taken drink he would have killed, the defence of diminished responsibility must fail. such a direction is incorrect because it fails to recognise that the abnormality of mind arising from a cause specified in the subs and the effect of the drink may each play a part in impairing the defendant’s mental responsibility for the killing. (iv) the direction given by the trial judge in turnbull (launcelot) should not be followed. the “smith questions” professor sir john smith, as noted above, had formulated the questions that have to be put to the jury as follows: “have the defence satisfied you on the balance of probabilities – that, if the defendant had not taken drink – (i) he would have killed as he in fact did? and (ii) he would have been under diminished responsibility when he did so?”64 in two subsequent cases, atkinson65 and egan,66 the court of appeal approved of the “smith questions”. lord hutton, however, expressed reservations as to both these decisions in the light of his lordships views these cases must now be regarded as of limited value.67 while paying tribute to the legal scholarship of the late professor sir john smith, lord hutton was forced to concluded that the “smith questions” were not entirely correct: “i consider, with respect, that this commentary placed undue reliance on the direction by the judge and the judgment of the court of appeal in turnbull and did not give sufficient weight to the subsequent judgment of the court of appeal in gittens which makes it clear that the direction in turnbull should not in future be followed …”68 lord hutton went on to point out that even if the jury came to the 64 commentary [1984] crim lr 554. 65 [1985] crim lr 314. 66 [1992] 4 all er 470. 67 see, in particular, para 37. 68 at para 32. the denning law journal 38 conclusion that the effective cause of the killing was the intoxication, this did not prevent a further finding of diminished responsibility: “… even if the jury answered “no” to the question: “have the defence satisfied you on the balance of probabilities that, if the defendant had not taken drink, he would have killed as he in fact did? – it is still open to the jury to find the defence of diminished responsibility established.”69 in other words, while the defendant’s consumption of alcohol is to be left out of account (in those instances where it does not amount to an inherent cause i.e. amounting to alcohol dependence syndrome), it may have a disinhibiting effect. the jury may take this into account in coming to a conclusion as to whether, despite the alcohol consumed, the defendant’s underlying mental responsibility did or did not substantially impair his mental responsibility. support for this approach was gleaned from simester and sullivan in their text on criminal law theory and practice: “… the taking of intoxicants should not disentitle d from successfully pleading diminished responsibility if the abnormality of mind caused by factors internal to [him] is sufficient, of itself, substantially to impair [his] mental responsibility. … the drink does not supervene over his underlying subnormality. that underlying condition remains, and so does the question whether that condition substantially impaired his responsibility for the killing.”70 this does not alter the policy of the criminal law: a defendant who is “merely” intoxicated would not be excused. the essential difference between a person who is brain-damaged but is also intoxicated and a defendant who is intoxicated but not brain-damaged, is maintained.71 moreover, as lord hutton rightly pointed out, in the majority of cases “if the jury concluded that the defendant would not have killed if he had not taken drink they will also find that his abnormality of mind had not substantially impaired his mental responsibility for his fatal acts.”72 the first part of the question before the house of lords asked: “does a defendant have to show that if he had not taken drink, he would have killed as 69 ibid. 70 para 34. 71 at para 40 this was a point made by lord rodger during the crown’s submissions. 72 para 34. the denning law journal 39 he in fact did?” in the light of the above analysis, lord hutton answered this question in the negative.73 the appropriate jury directions the second part of the certified question asked for the appropriate jury direction in those situations where self-induced intoxication was present in conjunction with an abnormality of mind. lord hutton began with the aphorism that it was not possible to lay down a precise form of words; much depends on the facts that are before each trial judge. nonetheless, it was possible to provide guidelines. it is worth setting this out in full: “assuming that the defence have established that the defendant was suffering from mental abnormality as described in s 2, the important question is: did that abnormality substantially impair his mental responsibility for his acts in doing the killing? you know that before he carried out the killing the defendant had had a lot to drink. drink cannot be taken into account as something which contributed to his mental abnormality and to any impairment of mental responsibility arising from that abnormality. but you may take the view that both the defendant’s mental abnormality and drink played a part in impairing his mental responsibility for the killing and that he might not have killed if he had not taken drink. if you take that view, then the question for you to decide is this: has the defendant satisfied you that, despite the drink, his mental abnormality substantially impaired his mental responsibility for his fatal acts, or has he failed to satisfy you of that? if he has satisfied you of that, you will find him not guilty of murder but you may find him guilty of manslaughter. if he has not satisfied you of that, the defence of diminished responsibility is not available.”74 conclusion the house of lords then remitted the case to the court of appeal for a decision as to whether the conviction for murder ought to be quashed and a new trial ordered or to substitute a verdict of guilty of manslaughter. the court of appeal subsequently held that the public interest, in the context of the serious 73 para 41. 74 ibid. the denning law journal 40 offence of murder, required a retrial. the court acknowledged that a substantial amount of time had elapsed but, nonetheless, a retrial could be fair. the failing of the law had now been corrected, a trial judge would now be equipped with a proper direction and a new jury needed to decide if the defendant should still be convicted of murder.75 welcome as this decision may be, the fact remains that many issues remain unresolved. the basic tensions between the legal and psychiatric analyses continue. this has a fundamental impact on the reception of expert evidence. as this case illustrates, both the experts for the crown as well as the defence agreed that the defendant was suffering from an abnormality of mind. is it not the case that even a properly directed jury will continue to have difficulties with drawing a distinction between the expert conclusion and their own view as whether this went on to cause a substantial impairment of mental responsibility? in the light of the ruling in byrne that the jury should take a “broad common sense approach” when dealing with the abnormality of mind, the proper place of the expert psychiatric evidence remains problematic. moreover, a number of policy and analytical issues were not addressed. two of these are worth noting. first, the house of lords makes no comment on whether it continues to be permissible to direct the jury on diminished responsibility in terms of “partial insanity”. second, in tandy76, the court of appeal had dealt with the issue of whether the consumption of alcohol was voluntary or not by posing the so-called “first drink of the day” question. it had been argued in the courts below that this approach was illogical and incorrect. the house of lords chose not to deal with this issue. since other parts of the tandy ruling were treated with approval, may it be assumed that this approach was also to be approved? in terms of wider policy, the question still remains: what difference does it make whether insanity or diminished responsibility is used? as far as the disposal and sentence of the defendant is concerned, the end result is likely to be the same. this is illustrated by the peter sutcliffe case. here the trial judge refused to countenance the prosecution’s acceptance of a plea of guilty to manslaughter on the grounds of diminished responsibility. following a full trial and a conviction for murder, he was within a matter of months, transferred to a secure mental hospital, where he would have been if the original plea had been accepted. it is true, of course, that the trial for murder had a symbolic function but as norrie puts it: “at the end of the court process, when the symbolic games have been played, the practical effects of the different findings 75 ltl 11/4/2003 extempore. 76 [1989] 1 all er 267. the denning law journal 41 in law are largely irrelevant. having struggled to understand the elaborate and confusing categories of insanity and diminished responsibility, law students are often bemused to find that, practically, at the end of the day, it does not make much odds one way or another which legal category is applied.”77 the progress of the instant appeal had been, to say the least, tortuous. after the original trial there had followed: an application for leave to appeal before the court of appeal; an appeal on the merits before the court of appeal; an appeal to the house of lords; a further hearing by the court of appeal to decide whether to order a re-trial; and finally a re-hearing before the crown court. all in all, sixteen judges, lords justices and law lords had been involved in this case in one way or another. there ought to be a better way to manage a modern criminal justice system. 77 loc cit, p 196. interpretation, policy and authority in edward phillips* the defendant’s testimony expert evidence directions to the jury the appeal chronology decision of the court of appeal the expert evidence the decision in tandy the “smith” questions review of the authorities the “smith questions” the appropriate jury directions theories of private property oj< in modern property law **sukhninder panesar introduction it is generally accepted that justificatory theories of private property, certainly in the western philosophical tradition, divide roughly into two. this is no better summarized than by getzler who writes: "[t]here is a notion of property as pre social, a natural right expressing the rights of persons which are prior to the state and law, this being the view of hugo grotius, samual von pufendorf, john locke, immanuel kant, and george w.f. hegel; and there is a notion of property as social, a positive right created instrumentally by community, state, or law to secure other goalsthe theory of thomas hobbes, david hume, adam smith, jeremy bentham, emile durkenheim, and max weber."] the philosophical analysis of property is an ever-continuing process since the meaning, function and existence of the institution of private property is not constant but dynamic. the institution of private property is influenced by a number of factors, not least by the way in which the dominant classes in society expect the institution of private property to serve. in the same way as the dominant classes of society change, so does the institution of private property.2 for example, aristotle, • this article is based on a chapter from a forthcoming book written by the author, concepts in property law to be published by longmans . •• school ofinternational studies and law, coventry university. i j.getzler, "theories of property and economic development" journal of interdisciplinary history, xxvi: 4 (1996) at p.641. see also, j.waldron, the right to private property (oxford, clarendon press, 1988); s.munzer, a theory of property (cambridge university press, 1990), and more recently, m.j.radin, reinterpreting property (university of chicago press, 1993). 2 for a critical review of the recent and continued philosophical analysis of property see l.becker, "too much property" philosophy and public affairs, xxi (1992) 196-206. 113 the denning law journal questioning the proper system of property in an ideal constitution, argues for a regime of private property as the best means of attaining net productivity in the utilization of land. 3 aristotle argues: "when everyone has his own separate sphere of interest, there will not be the same ground for quarrels; and the amount of interest will increase, because each man will feel he is applying himself to what is his own.'>'! this line of argument has more recently been advanced by demsetz who that writes the "primary function of property rights is that of guiding incentives to achieve a greater internalization of externalities."s however, philosophers such as plat06 argued for a regime of communal property as opposed to private, and more recently, marx commenting on the evils of private property argued for the abolition of private pro~erty and the transfer of the ownership of the means of production to the state. this article explores four dominant justificatory theories of private property with two main objectives in mind. in the first place, the article attempts to show that such justificatory theories and commentary thereupon usually encapsulate three separate questions. the first is the basic question: "what principles decide which individuals have ownership rights over what things?"g this question is different from the second question which seeks to ask what are the social or public functions of private ownership? the third question, closely related to the second, simply asks: "what individual interests are served by the existence of private property as opposed to some other property regime (such as communism)?,,9 thus, in dealing with justificatory theories for private property, it becomes apparent that theorists either attempt to justify private property by simply looking at the acts of an individual in respect of external resources or they attempt to look at the more broader question of the goals achieved by the existence of private property. the latter does not necessarily entertain questions as to how people become owners of things but merely seeks to provide a plausible explanation for the existence of private property. 3 aristotle, the politics, (translated by e.baker , oxford, clarendon press, 1946). 4 ibid at p.49. 5 h.demsetz, "towards a theory of property rights" american economic review: proceedings and papers, 57 at p.348 (1967). 6 plato, the republic (translated by desmond lee, harmondsworth, penguin books, 1974). 7 k.marx, the communist manifesto (harmondsworth, penguin books, 1976). 8 r.epstein, "possession as the root of title" 13 georgia law review at p.1220 (1979). 9 j.waldron, supra. n.l at p.l. 114 theories of private property the second objective of the article is to explore the extent to which these justificatory theories continue to be reflected in modem property law. in other words, are these justificatory theories influential in the judicial law-making process and do they provide a plausible explanation for the existence of private property rights in contemporary property law. in this respect one commentator writes: "[t]here is a solid consensus among philosophers and legal and political theorists that attempted original acquisitions of private property, when presented in any even remotely plausible form, in fact have little or no interesting force. however compelling their intuitive underpinnings might be, they can justify nothing which helps much in our deliberation about the possible moral defenses of private property in contemporary society." i 0 the article attempts to show that, both original acquisition theories of private property, and those theories of private property which examine the broader question of the goals secured by a regime of private property rights, continue to be reflected in modem property law. occupa tion theory one of the earliest justifications for private property is contained in what has been called the occupation theory. this theory attempts to answer the relatively simple question of how things become the subject matter of private ownership. we take it for granted that things are ours because we have acquired them from another person who has ownership to pass on to us. such acquisitions can occur through a voluntary transfer such as a gift or a bequest in a will or; simply by a purchase for value. thus, the law prescribes methods by which ownership can be acquired from another, for example, a transfer by deed or mere delivery of the thing in question. the law does not, however, tell us how that chain of ownership began, in other words, why was ownership of the thing recognized in the first place? early philosophers such as hugo grotius 11 and pufendorf12 argued that the earth's resources were given to mankind in common. likewise, blackstone wrote: 10 a.j.simmons, "original acquisition justifications of private property" in property rights, paul, miller and paul (eds.) (oxford university press, 1994) at p.65. \i hugo grotius, on the law of war and peace, book 2. ch.2, 1, 4-5 (kelsey translation, oxford, clarendon press, 1925). 115 the denning law journal "[t]he earth ...and all things therein, are the general property of mankind, exclusive of other beings, from the immediate gift of the creator...all was in common among them, and that every one took from the public stock to his own use such things as his immediate necessities required." 13 in this sense of communal property, private property was born out of individual taking which, blackstone commented, was for his or her own need. if individuals will claim the material things of the earth, thus effecting demand, such philosophers argued that the resulting scarcity value would naturally require a system of allocation in order to preserve peace and order. without such a system there would be constant disputes as to what belonged to one person and what to another. the system which gave rise to the institution of private property was first occupation, hence, the occupation theory or justification for private property. the essence behind the occupation theory is that, given that all material resources are given to mankind in common, such material resources become the private property of individuals through the consent of or agreement with the rest of mankind. the division of property takes place by reference to agreements. such agreements can be express, that is, a clear acceptance by a group of individuals that material resources, for example land or animals, will be distributed amongst themselves on a mutual understanding. in the absence of such express agreements, an implied agreement could be found on the simple basis of first occupation. the basic principle emerging here is the first occupation gives rise to private property, put into the words of the common law, possession is the root oftitle. 14 if the occupation theory holds that an implied agreement will be found amongst individuals that a thing has become the private property of another through occupation, when does first occupation take place? despite the apparent simplicity of the theory, the question of who has taken first possession is much more difficult when applied to factual situations. the central problem relates to the actual point at which and the amount of labour needed to take first possession. the problem is particularly acute when there are overlapping efforts 12 samuel pufendorf, of the law of nature and nations, j. churchill et.al. (eds.) (1703). 13 sir william blackstone, commentaries on the laws of england, vol. ii. para i (4 vols., oxford university press, 1765-9; rep. university of chicago press, 1979). 14 see for example; asher v. whitlock [1865] 1 q.b. 1; perry v. clissold [1907] a.c. 73; megarry and wade, the law of real property (sweet & maxwell, 5th ed., 1984) at pp.l05106; pollock and wright, possession in the common law (oxford, clarendon press, 1888). 116 theories of private property to take first possession. the seminal case which attempts to answer these question is pierson v. post, a classic wild animal case from the early 19th century. is the case involved an action of trespass by post against pierson on the grounds that pierson had interfered with post's property in a wild fox. the facts of the case are relatively simple, post in possession of certain dogs was hunting on an abandoned beach, having caught sight of a wild fox, he led pursuit for it and had the fox in his gunsight. before post had any chance of killing the fox, pierson intercepted his pursuit and killed the fox and took away the carcass. pierson's interception took place with the full knowledge that post was in hot pursuit ofthe animal. the basis of post's action was that his pursuit had given him property in the fox that had now been interfered with by pierson. the judgments in the case are very interesting and attempt to lay down some general principles as to when first occupation or possession occurs. justice tompkins delivered the decision of the majority, who held in favour of pierson. after citing a long list of authorities both english and american, and consulting the opinion of jurists, the majority held that actual capture and control of the thing in question could give rise to first possession. the hot pursuit of post was insufficient to give him any property in the fox. furthermore, it mattered not that post could have killed the fox had it not have been for pierson's interception. for the majority, possession meant a clear act whereby the entire world understands that the pursuer has "an unequivocal intention of appropriating the animal to his individual use. ,,16 anything short of such an act would be insufficient to give property in the animal. there are sound justifications in this position in that, in the absence of a kill and complete control of the animal, when does the court assign possession? the underlying objective of the majority ruling was to avoid constant disputes and quarrels about when possession takes place. justice livingstone dissented on the grounds that the question of first possession should not be decided by a judge but by a panel of hunters. 17 in his view the matter would have clearly been decided in favour of post by such hunters, the majority ruling had the effect of discouraging fox hunting. professor rose as argued there appear to be two principles emanating from the decision in pierson v. post as to when first occupation takes place. first, notice to the whole world through a clear act, and secondly, the reward of useful labour. 18 these two principles require discussion because they seem at first 15 3 caines. r. 175 (ny. sup. ct. 1805). 16 ibid at 178. 17 ibid at 180. 18 see, c. rose, "possession as the origin of property" 52 the university of chicago law review at p.78 (i985) 117 the denning law journal instance to be rather contradictory. the former principle suggests that first occupation takes place when there is a clear act to the whole world that control has been taken by the possessor. the second principle, however, suggests that first occupation takes place by mixing one's labour, for example, by hunting the thing in question. the second principle on its own leaves a number of difficulties. first, it leaves a number of question unanswered in the decision in pierson v. post, and secondly, it fails to explain the difference, if any, between the occupation theory and the rather different labour theory of property which is discussed later on. if the principle is to reward labour then what about the labour employed by post in his pursuit of the fox? on this second principle, post should have been entitled to the fox as his property. despite these initially apparent contradictions, the two principles work hand-in-hand. the central principle is that of notice to the whole world through an unequivocal act to appropriate. the question can be put in the following way; who has exercised a better control?19 labour is important only in so far as making that communication effective. thus the facts of pierson v. post can be explained by stating that, although post had employed some labour in hunting the fox, his labour had never reached the important stage of communicating notice to the whole world. pierson's labour had the effect of making that important notice to the whole world. the rule emanating from the occupation theory of private property is that objects become the private property of individuals when such individuals have taken occupation of them. occupation is only effective when there has been a clear act of appropriation and which has been communicated to the whole world. pursuit and acts, which fall short of such an unequivocal act of appropriation, are insufficient because of the problem of assigning possession when there are two or more overlapping efforts to take occupation. the principle behind the occupation theory is thus clear enough, however, it may be questioned whether the theory has any contemporary significance in property law. the primary objection to its continued reliance in contemporary property law is that it is based on facts, which are both historical and primitive.20 the conditions operating at the time of writers such as grotius and pufendorf simply do not exist in a complex system of resources which we witness today. resources are not as commonly held today as they were before, rather, they are 19 this question is employed by the courts in many of the english law cases relating to finding and is also central to the question of whether someone has exercised an appropriate adverse possession of land to thereby extinguish a former legal title. 20 the theory has been criticized by some as being a mere description of the origin of property, see, for example; rh.lowie, "incorporeal property in primitive society" 37 yale law journal at p.551 (1928). 118 theories of private property more and more parceled into private property. this process having its origins in the 17th century as a result of the spread of the full capitalist market economy in western political systems. it is submitted that, despite the historical and primitive conditions operating in the occupation theory, the theory remains an important one in present day property law. there are several reasons why the theory is important. in the first place, it cannot be denied that the theory provides the most basic justification for private property. it tells us why private ownership came about in the first place. many theories on private property attempt to justify the institution of private property, yet they do so not by reference to how such property came about, but rather by looking at the social and economic functions of private ownership. such theories fail to explain how the chain of ownership began in the first place, instead taking it for granted that the legal system has a concept of private property. in this respect, epstein writes: "[i]t could be decided that ownership is necessary to create effective incentives for the development and improvement of property or to reduce or eliminate conflicts between private persons. yet even if these points are true, such broad justifications for ownership do not solve the more particular question of how given bits of property are matched with given individuals. ,,21 secondly, the principle line of thought developed in the occupation theory still continues to be reflected in modem property law. it may well seem.that the cases such as the capture of wild animals are more academic than real life legal disputes in property law, however, analogous facts do appear in present day property law. one commentator writes: "these cases are not silly ...people still do find treasure laden vessels, and statesmen do have to consider whether someone's act may support a claim to own the moon, for example, or the mineral nodes at the bottom of the sea. ,,22 more importantly, however, the principles operating in the occupation theory are still used by the courts in resolving modem day property law disputes. the rule of notice and communication finds itself applicable in the common law cases governing the finding of abandoned and lost objects and also in the law of 21 r.epstein, supra n.8 at p.1221. 22 c.rose, supra. n.18 at p. 75. 119 the denning law journal adverse possession. the common law treats ownership as a relative concept, where objects are lost or abandoned the law allows the finder to assert a fullblooded ownership right against everyone except the original true owner. in such cases of abandoned and lost objects the law has to prescribe conditions under which the finder can assert an ownership right against others. where objects have been found in a communal or public area, the principle of first occupation has been applied to assign ownership, thus in one case, parker v. british airways board a passenger who found a gold bracelet in the executive lounge of an airport was allowed to keep the proceeds of sale. 23 his finding had given him an ownership right binding on the airport which had not made any attempts to control or appropriate lost objects in a public part of the airport. the passenger had, in the context of the occupation theory, made effective notice to the whole world by picking the bracelet and taking control thereof. the airport authority had made no attempt to control lost property by putting up an effective sign to indicate that such lost objects belonged to the airport. the degree of effort or labour needed to make the communication to the whole world depends on the nature of the resource in question. in pierson v. post the degree of effort needed to take control, and thus make communication to the whole world, was to physically capture the wild fox?4 however, some resources are incapable of entire physical control, their first occupation is judged be reference to their nature. for example, in the tubantia the plaintiffs had been doing some salvage work on a wreck which had sunk in 1916 in the north sea.25 the plaintiffs, having spent some £40,000 on the salvage work, managed to make an artificial hole in the side of the wreck and began the process of recovering the contents of the wreck. in 1923 the defendants appeared at the site of the wreck and began their own efforts to recover the wreck and the cargo. the plaintiffs sought a declaration that they were entitled to the wreck and its cargo and that the defendants had interfered with their possession of the wreck. in applying the very same principles enunciated in the occupation theory, the court went on to hold that the plaintiffs were doing with the wreck what an owner or purchaser would have done, their occupation was sufficient to exclude the defendants from interfering with their wreck. similarly in the law and policy relating to the adverse possession of land, the rule of notice and communication sufficient to give occupation is clearly a central requirement. the principle of adverse possession recognizes that long uncontested possession of land by a trespasser confers upon such a person an effective title to the land. leading land law commentators attribute this process 23 [1982] q.b. 1004. 24 supra n.15. 25 [1924] all e.r. rep. 615. 120 theories of private property to the self-defining quality of property in land as an empirical fact rather than a question of form based on some abstract theories of ownership. two such commentators writes: "[ o]n this view property in land is more about fact than about right; it derives ultimately not from words upon parchment but from the elementary primacy of sustained possession. ,,26 at first instance, disputes relating to the adverse possession of land do not concern questions of first occupation ofland. however, the cumulative effect of the limitation act 198027 and long undisturbed possession by the trespasser do not move the facts too far away from the factual situation of first occupation. in such cases of adverse possession the common law requires the trespasser to have asserted a "complete and exclusive physical control,,28 over the land in question. the principle of first occupation has recently been the subject matter of much discussion in australia relating to the rights of aboriginal peoples. the high court of australia in mabo v. queensland (no.2) was forced to recognize the communal native title of the meriam people to land on murray island. 29such communitarian property, a form a private property, was vested in the aboriginal peoples by virtue of tens of thousands years of occupancy. the radical title of the crown upon settlement was burdened with this native title and as such these peoples were not trespassers. first occupation was therefore clearly important in recognizing such title to the land. in this respect it is important to note that, although legal systems have modified rules of acquisition through statue, such legal systems are nevertheless forced to recognize the rights of individuals and communities who have been in possession of land long before those modified rules of acquisition. 26 k.gray and s.f.gray, "the idea of property in land" land law: themes and perspectives, bright and dewar (eds.) (oxford university press, 1998) at p. 19. in referring to "words upon parchment" the authors cite blackstone who could see "no foundation in nature or in natural law, why a set of words upon parchment should convey the dominion ofland ..." (commentaries on the laws of england, supra n.13 at ii. 2). 27 the limitation act 1980 s.15(1) lays down a general rule that "[n]o action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the action accrued to him." the effect of this section is to extinguish the title of the ~aper owner. 8 powell v. mcfarlane (1977) 38 p & cr 452, per slade j at 470. 29 (1992) 66 a.lj.r 408. 121 the denning law journal finally, the occupation theory is regarded by economists to have a special role to play in the facilitation of trade and the functioning of an effective market. 30 property plays an integral part in economic affairs, since by the very definition, economics deals with all things that are both desired and scarce. communication and effective occupation has the effect of making it clear who is the owner of a thing, such clear titles facilitate trade by introducing certainty in the market place. every item of property must be owned by somebody, or by some people in the form of collective property. in the absence of ownership value cannot exist, unequivocal property claims not only allow efficient resource utilization but they also allow property to be traded at it highest value. labour theory: property a natural right legal and political philosophers in the 1ih and 18th centuries claimed that the right of individuals to own and dispose of private property was a natural right of the individual. john locke, for example, in his two treatises of government argued that private property rights existed before the state and independently of laws prescribed by the state. 31property rights were natural rights of individuals and thus governed by principles of natural justice, governmental interference or re-organization of these rights was not permissible without the consent of the individual. 32 such natural rights were vigorously defended by political philosophers and indeed formed the basis of revolutionary arguments. in the french and american revolutions such natural rights were clearly embedded in the resulting declarations. article ii of the french declaration of 1791 holds that: "the end of all political associations, is the preservation of the natural and imprescriptable rights of man; and these rights are liberty, property, security, and resistance of oppression.,,33 the fifth amendment to the constitution of the united states of america provides: 30 see rposner, economic analysis of law (boston, little, brown, 2nd ed., 1977) at pp.2131. 31 j.locke, two treatises on government (1690) book ii; see, "of property" in c.b.macpherson (ed.) property: mainstream and critical positions (university of toronto press, 1978) at p. 17. 32 for a detailed account of locke's discourse on property see, j.tully, a discourse on property: john locke and adversaries (cambridge university press, 1980), and; j.p.day, "locke on property" 16 philosophical quarterly (1966) at pp.207-221. 33 quoted in aryan, property (open university press, 1987) at p.61. 122 theories of private property "no person ...shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation. ,,34 the idea of natural rights is far from clear. with a history of some two and half thousand years, what constitutes natural law and naturai rights has provoked and continues to provoke different answers.35 the traditional line of argument behind natural law is that there are certain rights which are derived from the law of god, nature or reason. there are certain moral principles which depend on the nature of the universe and which are discovered by reason. it is these principles, such as the right to life, liberty and pursuit of happiness, which form natural rights and are protected by natural law. such laws are not prescribed by state, they exist before the state and are higher laws which all states and legal systems therein are subject to. although it is commonly accepted that natural law is derived from nature itself and discovered by reason, there have been different lines of thought as to what is exactly meant by nature and reason. if such laws are discovered by reason, then whose reas,?ning prevails? such a question is by its very nature subjective, and thus, susceptible to many different answers. d'entreves has pointed out "many ofthe ambiguities of the concept of natural law must be ascribed to the ambiguity of the concept of nature that underlies this.,,36 despite this, freeman points out that: "[ v]iews as to the content of these principles have sometimes diverged but the essence of natural law may be said to lie in the constant assertion that there objective moral principles which depend upon the nature of the universe and which can be discovered by reason. these principles constitute natural law .,,37 john locke argued that the right to private property was one of the natural rights of an individual and consequently protected by natural law . the right was natural, not in the sense that every individual was born with the right to property, rather, the right was acquired through conduct which is natural to 34 s.e.finer, five constitutions (oxford, clarendon press, 1979) at p.1 06. 35 for a good overview of natural law thinking see md.a.freeman, lloyd's introduction to jurisprudence (london, stevens, 6th ed., 1994) at p.79 and r. tuck, natural rights theories (cambridge university press, 1979). the most forceful recent statement of natural law is erovided by jfinnis, natural law and natural rights (oxford, clarendon press, 1980). 6 natural law (london, hutchinson, rev.ed., 1970) at p16. 37 m.d.a.freeman, supra n.35 at p.80. 123 the denning law journal man. private property rights were acquired by natural, moral and rationale conduct which individuals left to their own devices would perform. as such private property was acquired separately and did not arise through the prescriptive law of the state. locke maintained that it was god and not sovereign that gave property, and thus, private property existed even before sovereign and state. the role of government was to protect to the right of property along with other rights such as the right to life and liberty. indeed, such argument was used to refute the claims of charles i in england that sovereign could interfere with the property of individuals without their consent for the public good. like pufendorf38 and grotius,39 locke begins his justification for private property on the same premise that resources are given to mankind in common, the original state of property is that it is held in common. the basis of his thesis thereafter can be summarized in three main points. in the first place, every man has a right to his own person, we may describe this as self-ownership. 40 secondly, every man has a right to own his own labour. finally, every man has a right to own that which he has mixed the labour of his own person with. mixing one's labour with the common resources which god has given to mankind extracts that which was held in common into private ownership. this process taking place as a result of the natural conduct of man and not through the process of law prescribed by the state. locke begins his justification for private property on the same premise as the occupation theory, that is, the earth and all the resources within it are given to mankind in general. locke writes: "god, who hath given the world to men in common, hath also given them reason to make use of it to the best advantage of life, and convenience. the earth, and all that is therein ...belong to mankind in common, as they are produced by the spontaneous hand of nature; and no body has originally a private dominion, exclusive of the rest of mankind, in any of them, as they are thus in their nature state ...''''] 38 supra n. 12. 39 supra n.11. 40 the use of the word "man" is deliberately used here reflecting the ideological thinking of the time and the role of man as being far more important in acquiring property rights. 41 two treatises of government (1690) "second treatise of government" ch.5. para.26, reprinted in c.b.macpherson, supra n.31 at p.i7. 124 theories of private property god gives the earth and the resources within it to man in common, no individual has an exclusive dominion. in this respect locke attempts to show that the state and sovereign have no exclusive rights to resources which allows them to interfere with and control those resources per se. in this state of common property, locke attempts to show that private property is born out of two natural principles. the first is that, every individual has by nature property in his own person, sometimes referred to as selfownership. locke writes "every mclllhas property in his own person. this no body has any right but to himself. ,,42the lockean idea of ownership in one's self has been the subject matter of much debate.43 waldron writes that "[a] more promising suggestion is that self ownership and the ownership of actions amount for locke to a right to personalliberty.',44 to have ownership in one's person is to have ownership in his actions, such actions belong to him since he has a natural right to perform them without any obstruction. the second principle, and one which flows from the first is that, one of the actions which an individual will perform is to laboqr on resources which have been given in common. labour of an individual belongs to the individual alone, consequently, locke argues that when such labour is mixed with common resources such resources are taken from the common and put into the sphere of private property. labouring gives the labourer an exclusive private property right to the resource or thing in question. the object in which labour has been expended contains something which the labourer owns and as such any taking of the object or other interference amounts to a violation of the individuals natural right to the object. labour, is thus, the central features of locke's justification for private property, however, it does not explain the extent of private property. it is fair to say that labour on resources will give individuals private control of those resources, yet there are some unanswered questions. how much private property can an individual acquire under the lockean theory? how much labour need one expend before he or she becomes entitled to the thing and does labour have to reflect the value added to the resource in question? locke addresses the first question raised here in his theory, the latter is not discussed and as such has been the more critical aspect of his theory. although labour gives birth to a private property right, locke does impose restrictions on the amount of such 42 ibid para. 27 at pis. 43 see, for example, j.tuiiy, supra n.32 at pi05 who argues that the term "person" is a technical term quite distinct from "body." tully argues that such use of the word person more accurately describes personal identity, thus, an individual has ownership in his personal identity. for a critical account of ownership in one's self, see; jp.day, supra n.32. 44 waldron, supra n.1 at p.1s!. 125 the denning law journal property. in his writings one identifies two limitations on the labour principle, namely; the "spoilation proviso" and the "sufficiency limitation." first, although labour will give private property, if the labourer does not use resources, then despite his labour, those resources do not belong to him but become common again. he writes: "god has given us all things richly ... but how far has he given it us? to enjoy. as much as anyone can make use of to any advantage in life before it spoils; so much may be by his labour fix a property in. whatever is beyond this is more than his share, and belongs to others.,,45 this has often been referred to as the "spoilation proviso,,,46 and has been described by waldron as: "a generous one, because locke's concept of use is very broad. it is to any advantage of life and therefore is not confined to consumption or production for consumption, but also includes, for example, aesthetic uses and the use of objects as a commodity in exchange.''''? although locke provides for this spoilation limitation, he does not see that there would by any problems of excessive concentration of private property into certain hands at the expense of others. this is simply because in his thesis he regards right and convenience to go hand in hand. thus, any labour which is mixed with more than that is needed for one's convenience simply goes back into the common. locke noted that: "there could be no reason for quarreling about title, nor about the largeness of possession it gave. right and conveniency went together; for as a man had a right to all he could employ his labour upon, so he had no temptation to labour for more than he could make use of. ,"'8 45 j.locke, "second treatise on government" para.31, in c.b.macpherson, supra n.31 at p619see,j.h.bogart, "lockean provisos and state of nature theories"95 ethics (1985). 47 waldron, supra n.l at p.207. 48 j.locke, "second treatise on government" para. 51, in c.b.macpherson supra n.31 at p27. 126 theories of private property this proviso works well enough in a social and economic climate where right and need go together, however, as dunn has pointed out, the role of exchange and money did put a rather different emphasis on the matter.49 dunn writes that the introduction of money meant that: "right and conveniency no longer went together. the entire social and economic order of the seventeenth-century england rested upon a human institution about whose moral status locke felt deeply ambivalent. ,,50 the second limitation on property in locke's theory is that, an individual who does labour, must leave behind enough resources of the same quality for others to appropriate. this is necessary because the function of property in locke's theory is the satisfaction of need. without such property individuals cannot exist, human needs dictate that there should be private property. this limitation has been described as the "sufficiency limitation,,,5\ it seeks to make appropriation illegitimate when there is insufficient left for the needs of others. locke writes: "[f]or this labour being the unquestionable property of the labourer, no man but he can have a right to what that is one joyned to, at least where there is enough and as good left in common for others. ,,52 at first instance, this limitation of the right to appropriate seems rather paradoxical, for example, thomson writes: "if the first labour-mixer must literally leave as much and as good for others who come along later, then no one can come to 49 ldunn, the political thought of john locke (cambridge university press, 1969) at p.40. 50 ibid. writers like dunn have sought to argue that the introduction of money was somewhat at odds with locke's theory. waldron, supra n.l at p209, however, argues that in respect of the locke's spoilation proviso, it is not rendered ineffective by new conditions in economy. this is simply because the amount of appropriation is determined by labour and not the proviso. providing there is labour and some element of use and consumption, use having a very wide meaning, the labourer is entitled to everything which does not perish. 51 c.b.macpherson, the political theory of possessive individualism: hobbes to locke }oxford, clarendon press, 1962) at p.211. 2 llocke, "second treatise on government" para.27, in c.b.macpherson supra n.31 at p18. 127 the denning law journal own anything, for there are finitely many things in the world so that everyone taking leaves less for others. ,,53 the lockean justification for private property works well under conditions of plenty, since under conditions of plenty and lack of scarcity this sufficiency limitation will never be violated. the social and economic conditions operating at the time of locke's writing may well have made it impossible for appropriation to become illegitimate by virtue of the sufficiency limitation. the reason for this is that locke associates private property rights with convenience, such convenience being the satisfaction of human needs and subsistence. anything beyond this would be improper, for example, the idea of property and convenience going together is illustrated when he states that there would be enough land in the world for twice its population: "had not the invention of money, and the tacit agreement of men to put a value on it, introduced (by consent) larger possessions, and a right to them ...,,54 the sufficiency limitation works well under conditions of plenty, but under conditions of scarcity all appropriation becomes illegitimate for the reason stated above. does the lockean justification for private property, therefore, become redundant? this is a question which has provoked different responses. one response is that in an age of scarcity, unilateral appropriation becomes no longer possible and property must be distributed in different way, for example through consent. perhaps the most effective interpretation of the sufficiency limitation is that provided by waldron.55 waldron explains that the sufficiency limitation is not really a limitation in its own right but, rather, an effect of the spoilation proviso discussed above. he gives the example of an individual living under conditions of modest scarcity, such individual needs to appropriate resources for his needs but he realizes that his appropriation will leave less for others who have a similar need to appropriate. if the sufficiency limitation is taken to its logical conclusion, does he sit back and starve? indeed, to appropriate under such conditions he would be violating natural law. in the context of this example, waldron explains that such a conclusion would be 53 j.j.thomson, the realm of rights (london, harvard university press, 1990) at p.330. thomson is not alone in making this point, j.h.bogart writes: "[e]very acquisition worsens the lot of othersand worsens their lot in relevant ways" supra n.46 at p.834. 54 j.locke, "second treatise on government" para.36. in cbmacpherson supra n.31 at p.2l. 5 supran.l atpp.211-213. 128 theories of private property absurd and inconsistent with the substance of locke's theory of property. it would in effect mean that because every one else in the world is in a similar position everyone has to starve. waldron writes: "all god's human creatures would perish notwithstanding the fact that he had provided resources for the sustenance of at least some of them. such a result, dictated by the alleged proviso in conditions of scarcity, is absurd ... it follows, surely, that he who appropriated the food and shelter he really needs is entitled, even bound to use them-irrespective of the needs of others.,,56 the only limitation being that if he appropriates more than his needs then others have a right to be sustained out of his surplus. schmidtz provides a somewhat different response to the sufficiency limitation. 57schmitdz explains that appropriation is not what he calls a "zero sum game.,,58 it is not plausible for philosophers on original acquisition, and for that matter subsequent readers of the theories provided by such philosophers, to maintain that all appropriation takes place by the fifst person to arrive. first appropriation is just the beginnings of creating the resource in question, the real benefits to be enjoyed by later owners. schmitdz neatly explains the point when he writes: "[ a ]riginal appropriation diminishes the stock of what can be originally appropriated, but that is not the same thing as diminishing the stock of what can be owned. on the contrary, in taking control of resources and thereby reducing the stock of what can be appropriated, people typically generate massive increases in the stock of what can be owned. the lesson is that appropriation is not a zero-sum game. it is a positive sum game. as locke himself stressed, it creates the possibility of mutual benefit on a massive scale.,,59 the question was raised above regarding the extent of labour needed before i can regard the thing in question as mine. this is different from the question s6 ibid at p.214. s7 d. schmitdz, "the institution of property" in property rights, frankel, miller and paul }eds.) (cambridge university press, 1994) at p.42. 8 ibid at p.4s. s9 ibid at p.46. 129 the denning law journal discussed so far, that is, how much private property i can acquire under locke's theory? whilst the amount of private property which can be acquired or appropriated is governed by the spoilation proviso and the sufficiency limitation, a question which is not directly tackled by locke is the relationship of labour to the value added to the thing in question. it is this aspect of his theory which has been the subject matter of criticism. nozick makes the point that, even if labour can be owned and such labour is mixed with resources, does it automatically mean that the resources becomes the private property of the labourer?6o for example, if i make the very first effort to extract the oil from the bottom of the seabed, am i entitled to the world's supply of oil? nozick's primary concern relates to the fact that where labour is expended by the labourer, why should the labourer be entitled to an exclusive right over the resource in question? his right should only extend in so far as to the added value to the resource in question. the potential problem with this line of attack by nozick is that how does one practically discriminate between lesser and greater interests in resources in a simple state of nature. waldron makes the point that only in a positive legal system can different estates and interests in the same object be recognized, distinguished and upheld in law.61 the plausible explanation here is that in a state of nature full and exclusive entitlements are only provisional and in any event: "could not operate as moral constraints on the activity of a subsequently instituted civil society which was determined to strike retrospectively and in rectification of the crudeness of the natural entitlements on a fair balance between the legitimate claims of the appropriator and those of the rest of mankind. ,,62 a second criticism directed at locke's theory is why should the mixing of labour with a resource give any entitlement at all? the much quoted question which nozick asks is: "[w]hy isn't mixing what i own with what i don't own a way of losing what i own rather than a way of gaining what i don't have. if! own a can of tomato juice and spill it into the sea so that its molecules ... mingle evenly throughout the sea, do i 60 rnozick, anarchy, state and utopia (oxford, blackwell, 1974) at p.175. 61 supra n.l at p.191. 62 ibid. 130 theories of private property thereby come to own the sea, or have i foolishly dissipated my .. ?,63 tomato juice. this question posed by nozick is often taken to illustrate the shortcomings of the labour principle in locke's theory, however, as one commentator explains such criticism is inappropriate64 duxbury gives two reasons; in the first place, locke only recognizes those activities which improve the resource as constitutive oflabour. secondly, a person who does labour and makes no improvement to the resource in question or even diminishes its value, is simply acting irrationally or out of ignorance. how far is the natural right justification for private property relevant in modem property law? critics of the natural law theory of private property reject it has having any significance in modem property law. in the first place, there appears to be the theological dimensions to the theory and the resulting question as to how, and the extent to which, the church continues to influence the legal policy making process. legal philosophers argue that private property must be justified by some greater social and economic objective rather than by reference to historical entitlement. like the occupation theory the view is that such a theory only explains the principle of original acquisition. the matter is perhaps no better summed up than by simmons who writes: "[t]here is a solid consensus among philosophers and legal and political theorists that attempted original acquisition justifications of private property, when presented in any even remotely plausible form, in fact have little or no interesting justificatory force. however compelling their intuitive underpinnings might be, they can justify nothing which helps much in our deliberation about the possible moral defenses of . . . ,,65 private property m contemporary society. simmons, however, challenges this consensus by examining the idea of justification of private property. his main aim is to show that when philosophers talk of justifying private property, the concept itself is very vague. justifications of private property can be one of two types, namely, "optimality justifications" or "permissibility justifications.,,66 the former justification looks 63 supra n.60 at pp.174-75. 64 n.duxbury, theorising private property rights (university of manchester working paper no. 20 1996) at p.ll. 65 a.isimmons, supra 0.10 at p.65. 66 ibid at p.66. 131 the denning law journal to the wider social, moral and economic goals of having one type of property over another. thus, an optimal justification of private property would sound something like this: it is better to have private ownership because it provides for the greater human happiness in society or it is the best means of efficient utilization of resources. on the other hand, permissibility justifications simply look to what was morally permissible or morally legitimate. the everyday actions of an individual are not always done with the individual seeking to do what was optimal in the sense of the best alternative. individuals do not necessarily do what was the best thing they could have done in the circumstances, rather, they do things because they think they are morally permissible or otherwise legitimate without any wider objective goal in mind. in this context, simmons writes: "the primary force of locke's original justification of private property is to display private property rights as morally possible and permissible ... the permissibility arguments constitute an attempted justification of private property, they show that private property claims can be legitimate (i.e. morally acceptable), probably were once mostly legitimate and may still be legitimate in certain contexts. ,,67 finally, the principles emerging from the labour theory continue to be reflected in intellectual property rights and in the law and policy concerning unfair competition.68 individuals who create, manufacture or invent things through their labour and intelligence seek to make these things theirs through their acts oflabour. it has been said that the law of intellectual property, "is a branch of law which protects some of the finest manifestations of human achievement. ,,69 utilitarian theory of private property: property a positive right the utilitarian theory of property regards property as a positive right created instrumentally by law to achieve wider social and economic objectives. property is said to be a positive right as opposed to a natural right. the essence 67 ibid at p.73. 68 see, for example, r.g.hammond, personal property law (oxford university press, 1992) atp.51. 69 w.r.cornish, intellectual property: patents, copyright, trade marks, and allied rights (sweet & maxwell, 2nd ed., 1989) at p.3. 132 theories of private property of a positive right is that it is prescribed by state, the right is both given and protected by state. the most influential utilitarian justification for private property is that of jeremy bentham contained in his principles afthe civil cade.70 the principal thrust of bentham's argument is that the total or average happiness of society cannot be maximized unless there exists rights to appropriate, use and transfer objects of value or interest. in order to understand the utilitarian justification for private property it is necessary to understand exactly what is meant by the concepts of utilitarianism and positive law. jeremy bentham rejected that there could be any notion of natural law and natural rights. in his words, "[n]atural rights is simple nonsense: natural and imprescriptable rights, rhetorical nonsense, -nonsense upon stilts.,,7l bentham argued that all laws flowed form the state alone, states prescribed laws and such laws were positive laws. the principle upon which a law would be prescribed was the principle of utility. the concept of utility and utilitarianism is explained by one commentator in the following manner: "[t]he classical utilitarian theories (of bentham, j.s.mill ...) took the fundamental basis of morality to be a requirement that happiness should be maximized: the basic principle of utility required us to weigh up the consequences, in terms of happiness and unhappiness of various alternative actions, and choose that action which would, on balance, have the best consequences, in the sense of producing the largest net balance of happiness.,,72 the principle of utility alone governs what we should or should not do, in other words, the principle is used by state and sovereign and its law-making authorities to command rules. law and rights are not dependent on moral judgments and our actions cannot be simply justified on past facts. in rejecting property as a natural or moral right of an individual, bentham claimed that private property and law are born and die together. without laws 70 (1830), see his analysis of property in c.b.macpherson, supra n.31 at pp.41-59. the best edition is that contained in jeremy bentham, the theory of legislation, c.k.ogden (ed.) ~london, routledge, 1931) i 1.bentham, "anarchical fallacies" in nonsense upon stilts: bentham, burke, and marx, on the rights of man, 1.waldron (ed), (london, methuen, 1987) at p.53. 72 n.e. simmonds, central issues in jurisprudence: justice, law and rights (sweet & maxwell, 1986), at p. 15. there is no scope in this article for a complete analysis of utilitarianism, however, for further analysis, see; 1.1.c. smart and b.williams, utilitarianism: for and against (cambridge university press, 1973); d .lyons, forms and limits of utilitarianism (oxford, clarendon press, 1965); sen and williams (eds.) utilitarianism and beyond (cambridge university press, 1982). 133 the denning law journal there is no private property, thus, even where a person is to labour on a resource, his only entitlement to the resource is the guarantee that the law will assure the enjoyment of his labour. in this sense laws perform the function of security, without which there would be misery and a denial of the right to subsist. the positivist nature of the right to private property is clear when bentham writes: "[t]he idea of property consists in an established expectation; in the persuasion of being able to draw such or such an advantage from the thing possessed, according to the nature of the case. now this expectation, this persuasion, can only be the work of the law. i cannot count upon the enjoyment of that which i regard as mine, exce~t through the promise of the law which guarantees it to me." 3 bentham argues that that the greatest or total happiness in society in respect of resources will only come about if such resources are in the hands of private individuals, how does he apply the utility principle to private property? the assumption is that acquisition of wealth is good, but good in what manner? in respect of the utility principle duxbury writes: "the principle is inherently vague in that it is not entirely clear how it is supposed to be applied or how utility might be measured or assuming satisfactory criteria for measurement are devised how the utilitarian is expected to balance one. person's gain in utility against a loss in that of another. ,,74 bentham does not provide a precise way in which human happiness can be measured, instead, in his work bentham identifies what he calls "evils" resulting from violations of private property. the first evil which bentham comments upon in principles of the civil code is the evil of non-possession. the acquisition of a resource is a good thing, nonpossession on the other hand an evil since the resource is simply being wasted. secondly, there is the pain oflosing since, where i do have private property and possession of things, such property performs different functions and represents to the individual different values. property may have an intrinsic value but it also has a value of affection, for example, as an inheritance, as the reward of labour, of the provision for dependents. thirdly, there is the fear of losing what 73 j.bentham, principles of the civil code (1830) in c.b.macpherson supra n.31 at p.52. 74 n.duxbury, supra n.64 at p.4. 134 theories of private property one already has. whilst individuals have property, future acquisitions are necessary to supplement the ones which an individual already possesses. if the law does not guarantee private property then there is a fear of losing what we already have, this is a bad thing, since resources are not utilized properly. instead they are hidden or preserved and the enjoyment of them becomes "sombre, furtive, and solitary.,,75 finally, there is what bentham describes as the deadening of industry which arises form the insecurity of labour and the resulting fruits of labour. bentham argues that it is the law alone can give security in respect ofthese four evils. one of the shortcomings of bentham's utilitarian justification for private property is that it does not address the question of how people become to own resources and how initial distribution arises in the first place. bentham's philosophy of property and law was written in a period witnessing the end of the medieval period and the beginnings of a capitalist economy. certainly his ideas were influenced by the industrial revolution and the rise of nation states anxious to assert total independence in this age of economic expansion. it may be that bentham had no need to worry about how initial acquisitions of property occurred, instead justifying private property in this age of economic expansion. land had become more and more parceled into private ownership and rights in land more absolute.76 in so far as the question of initial distribution of wealth and resources, it is commonly said that the utilitarian i.snot concerned with this .question since his primary aim is the maximization of welfare. presumably this means that that those who have the largest amount of property will have the greatest opportunity to maximize wealth. what about those who have nothing or very little? is the utilitarian concerned about the distribution of welfare or is the divide between poor and rich not a concern for a utilitarian? it is submitted that the distribution of welfare is a central concern for the utilitarian and thus an integral part of any utilitarian justification for private property. distribution of welfare can take place on the theory of diminishing marginal utility which itself needs to be balanced with the objectives of maximization of welfare. simmonds 77explains the theory of marginal utility with the following example; an extra £1 given to a millionaire will make an negligible contribution to his welfare, whereas £1 given to a very poor person might make a significant contribution to his welfare, enabling him, perhaps, to buy a meal which he would not have been able to afford. the £1 in the hands of 75 lbentham, principles o/the civil code (1830) in c.b.macpherson supra n.31 at p.54. 76 see, for example, c.b.macpherson, "capitalism and the changing nature of property" in e.kamenka and r.s.neale (eds.) feudalism, capitalism and beyond (london, edwards arnord, 1975) at p.105. 77supra n.72 at p.32. 135 the denning law journal the poor man has the effect of maximizing welfare on a much greater scale than in the hands of a rich man. however, marginal utility needs to be balanced with the fact that high productivity requires resources to be placed in the hands of individuals who have strong incentives to work hard. strict equality of resources will inevitable bring about a reduction in the productivity and welfare in the long run. in this respect, simmonds explains that a utilitarian can offer a plausible response to distributive issues, he identifies two main arguments which purport to show the distributive nature of utilitarian arguments. he writes: "[f]irst the utilitarian can claim that his theory explains the way in which we do in fact trade off equality against productive and economic efficiency. this trade off is neither arbitrary nor hypothetical: it reflects the fact that the underlying concern is the maximization of welfare, that being a goal to which both redistribution and higher productivity can contribute. secondly, the utilitarian can argue that he alone has offered a plausible explanation of why redistribution matters. when we take money from the rich and give to the poor, he may argue, we do this because we believe it will do more good relieving poverty than being spent on trivial comforts. ,,78 seen in this way, like the lockean natural right justification for private property, there are limitations on the extent of private property under a utilitarian justification. under locke's theory we identified the spoilation and sufficiency limitations, the utilitarian principle of maximization of welfare does accommodate the need for distribution to others. economic justifications for private property in more recent times philosophers have advanced economic justifications for private property. this has been part and parcel of a process whereby laws have been analyzed from a purely economic perspective which, in substance, represents a scientific alternative to utilitarianism as discussed above.79 property underlies each and every aspect of economics, since by its very definition, 78 ibid at p.33. 79 the economic analysis oflaw has generated a vast literature, see r.posner, supra n.30. a.m. polinsky, an introduction to law and economics (boston, little, brown, 1989); and in the context of property rights, see, b.ackerman, the economic foundations of property law (boston, little, brown, 1975) 136 theories of private property economics deals with all things of worth. posner argues that the legal protection of property rights performs a very important economic function, that is, to create incentives to use resources much more efficiently.8o posner identifies three criteria for an efficient system of property rights. first, "universality" that is all resources should be owned by someone or capable of being owned except those resources which are so abundant that consumption does not reduce the resource for others. secondly, "exclusivity," that is, to give owners the incentive to incur the cost required to make efficient use of resources which they own. finally, "transferability," property rights should be able to be freely transferred since this is the only way that a resource can be shifted from a less productive use to a more productive one. in substance, this economic justification for private property argues that there are costs or disutilities when there is no ownership of resources. if these costs are much greater than the costs involved in having a private property regime, then a system of private property rights is justified by considerations of economic efficiency. the essence of the economic justification for private property is the minimizing of cost and the resulting efficiency in distribution of resources. 81 like posner, demsetz argues that the general welfare will be better served if material resources are owned and controlled by private individuals.82 a system of private ownership is much better than any other, such a communal, because individuals will not feel the full impact of the benefits of his use and also the costs of his use. according to demsetz, the "primary function of property rights is that of guiding incentives to achieve a greater internalization of externalities. ,,83 he gives the example of a communal ownership of land by a 80 ibid at pp.io-i3. 81 the economic idea of efficiency is construed in one of two ways pareto efficiency and kaldor-hicks efficiency. a situation is said to be pareto optimal ifit is impossible to change it without making at least one person believe he is worse of than before the change. thus, under this principle an allocation of resources will be pareto optimal, if any other different system of allocation makes one person better off but only to the cost of another. a situation may be pareto superior if a change produces a gain in one person but not at the expense of anyone else, in other words, one person is better of and no one else is affected in terms of loss. the difficulty with the pareto standard applies when there are no losers, however, most rules and social policies produce both winners and losers. the kaldor-hicks test gets round this problem by allowing a situation to be optimal or efficient if someone is made better off by a change but losers are fully compensated for their loss. thus, an allocation of resources will be efficient where those who lose as result of the allocation are fully compensated. see j.l.coleman, "the economic analysis of law" in j.r.penncock and j.w.chapman (eds.) nomos xxiv: ethics, economics, and the law (new york university press, 1982) at pp.83103. 82 h.demsetz, supra n.s. 83 ibid at p.348. 137 the dennthtg law journal group of hunters. when these group of hunters hunt on the land, no individual hunter has any incentive to increase or maintain the stock of game. this is simply because the cost of doing so will go to others as well as himself. the consequence is that there will be over intensive hunting and a reduction in the game stock which will not only affect his fellow hunters but hunters for generations to come. it is because the cost of one's use is not reflected in communal ownership that a private property regime is justified. a private scheme of ownership over game territory is much better because it: "will internalize many of the external costs associated with communal ownership, for now an owner, by virtue of his power to exclude others, can generally count on realizing the rewards associated with husbanding the game and increasing the fertility of his land. the concentration of benefits and costs on owners creates incentives to utilize resources more efficiently. ,,84 conclusions it is often thought that theorising private property is a task for political and economic philosophers rather than for property lawyers. the assumption appears to be that, how private property regimes come about and the possible justifications thereof, are questions of political and economic theory. as a result of this, an equally important assumption appears to be that political and economic theory can be divorced from any legal discourse on the system of property rules. the role of the property lawyers is to consult legal materials and advise his client on property transactions. yet, as this article has shown, these assumptions need serious challenge. understanding the theoretical underpinning of property rights is important for a property lawyer. the perspectives offered by the various justificatory theories of private property continue to be reflected in the case law, they also influence policy makers and legislators. moreover, the theoretical analysis of private property serves to help the understand contemporary problems in property law by attempting to explain how such doctrinal problems have arisen and what factors have caused them. 84 ibid at p.356. 138 for the purposes of right to self-determination, how does one define people in context of kashmir 35 the denning law journal 2010 vol 22 pp 35-49 constructive trusts and the homemaker sarah greer∗ and mark pawlowski∗∗ abstract to what extent, following the decisions in stack v dowden1 and abbott v abbott,2 may a claimant acquire beneficial ownership in the family home under a constructive trust relying purely on domestic contributions as homemaker? the writers examine this question against the background of single and joint ownership cases and suggest that, in the light of recent judicial pronouncements, the criteria for establishing a common intention constructive trust enunciated by lord bridge in lloyds bank plc v rosset3 may have been eroded so as to allow for a much broader inquiry of the claimant’s contributions to support a constructive trust. in particular, it is submitted that this may allow the english courts to consider the same factors for both establishing and quantifying the claimant’s interest in the property which, in turn, may pave the way for a closer assimilation between single and joint ownership cases in this field. introduction this year, the landmark case of lloyds bank plc v rosset4 comes of age. in rosset, the house of lords set a framework for ascertaining equitable ownership in the family home by means of a common intention constructive trust. in the 18 years since the decision, the social circumstances underpinning the case have continued to evolve. unsurprisingly, the rosset ruling has come under increasing attack, either by courts seeking to interpret its guidelines ∗ barrister, teaching fellow in law, department of law, university of greenwich. ∗∗ barrister, professor of property law, department of law, university of greenwich. 1 [2007] ukhl 17, hl. 2 [2007] ukpc 53, pc. 3 [1991] 1 ac 107, hl. 4 [1991] 1 ac 107, hl. constructive trusts and the homemaker 36 creatively5 or more directly, as in the equally significant house of lords’ decision in stack v dowden.6 rosset concerned a wife attempting to defeat a third party creditor by means of an overriding interest under s 70(1)(g) of the land registration act 1925.7 in order to establish such a claim, she had first to demonstrate that she had acquired an equitable interest in the property which was registered in the sole name of her husband. mrs rosset had not made any financial contribution to the purchase price of the property, nor had there ever been any express discussions between her and her husband as to the beneficial ownership of the property.8 lord bridge delivered the leading speech and, after reviewing the authorities, identified two categories of common intention constructive trust, either of which, if established, would give a claimant an equitable interest in the property. the first is an express common intention constructive trust, based on actual discussions between the parties. unfortunately for mrs rosset, the lack of express discussions closed this route of establishing such an equitable interest. lord bridge then went on to describe the circumstances in which the court could infer a common intention between the parties based on the conduct of the parties. in this situation, according to his lordship, only direct financial contributions to the initial purchase price or subsequent mortgage instalments would suffice to support equitable entitlement. in mrs rosset’s case, such contributions were absent and her involvement in the subsequent improvement of the property was characterised as trivial and insignificant. her claim was, therefore, dismissed.9 a similar problem is frequently encountered by a cohabitant who is seeking to establish an equitable share in the family home following a separation. the most celebrated example is to be found in burns v burns,10 where the claim also failed. here, the female claimant had made no financial contributions towards purchase or mortgage payments but had contributed to housekeeping, children’s expenses and general domestic expenditure including the purchase of several domestic appliances. although the couple had lived together for 19 years and had two children together, the court of appeal rejected mrs burns’ claim to beneficial entitlement based solely on 5 see, le foe v le foe [2001] 2 flr 970. 6 [2007] ukhl 17, hl. 7 now sch 3, para. 2 of the land registration act 2002. 8 indeed, the trustees of the husband’s family trust fund stipulated that the trust monies would only be released if the property was acquired in the sole name of the husband. 9 mrs rosset may have had a claim in family law against mr rosset, but in this case it was important that she could claim that she had an interest in equity which bound the bank. 10 [1984] ch 317, ca. the denning law journal 37 her domestic contributions as homemaker.11 that was a decision made back in 1984 and the interesting question (posed throughout this article) is whether the burns-type claimant would fare any better in the light of more recent english authority, which suggests that, in the words of lord walker12 in stack, “the law has moved on” since rosset. express declaration of trust the most sensible approach for cohabiting partners to avoid disputes is to reach an agreement as to the beneficial interests in the property before purchase. this decision can then be recorded during the conveyancing process on the hm land registry tr1 form. this asks the prospective purchasers whether they wish to hold in equity as joint tenants or tenants in common and, if the latter, asks them if they wish to hold in equal shares. if they wish to hold the beneficial interest other than equally, there is an opportunity to specify the proportionate shares agreed. despite widespread concern, however, the land registry has decided not to make this question compulsory in the recent reform of land registry forms.13 indeed, many couples choose not to answer the question because they find it unpleasant to consider the end of a relationship at a time when they are living together happily.14 where the parties go ahead and execute a trust expressly declaring their respective beneficial interests15 in the property, this will be conclusive of the parties’ common intention in the absence of some vitiating factor (e.g., misrepresentation, mistake16 or undue influence). in other words, the size of the parties’ respective shares will be determined according to the terms of their express trust regardless of their actual contributions to the purchase of 11 see also, midland bank plc v dobson [1986] 1 flr 171 ca, where mrs dobson had used part of her earnings for household expenses, including the purchase of domestic equipment and did some ordinary periodic decorating. she also looked after the home and the parties’ two children. the court of appeal held that there was no nexus between her carrying out these household duties and the acquisition of the property. 12 ibid, at para 26. 13 explanatory memorandum to the land registration (amendment) rules 2008. the law society opposed the suggestion that completing the tr1 should be compulsory. 14 see further, douglas, pearce and woodward, “cohabitation and conveyancing practice: problems and solutions” [2008] conv. 365. 15 it should be noted, however, that an express trust may not declare the beneficial shares but merely state the intention to hold on trust. 16 bhatt v bhatt, 3 april 2009, unreported, available on lawtel. see also, a chandler, “express declarations of trust, rectification and rescission: goodman v gallant revisited” (2008) 38 family law 1210. constructive trusts and the homemaker 38 the property.17 a burns claimant, therefore, who has made no financial contribution towards acquisition, will, nevertheless, be entitled to a beneficial share corresponding to that agreed between the parties and evidenced by their declaration of trust.18 moreover, an express declared trust precludes the possibility of a supervening constructive or resulting trust based on subsequent differential contributions until the declared trust is varied by subsequent agreement.19 what, however, is the position where no formal trust is executed declaring the equitable ownership of the property? in this scenario, the cohabiting couple must rely on equity to resolve their difficulties. the route to be taken when cohabiting partners disagree about beneficial interests in the family home, depends primarily on whether, as in rosset or burns, the property is registered in the sole name of one of the partners, or the parties are joint registered proprietors, as in stack. it will be convenient, therefore, to examine single and joint ownership cases separately. single ownership cases express common intention it is conceivable that purely domestic contributions as homemaker may be enough to avail a claimant in establishing a common intention at the primary stage of the court’s inquiry, where he (or she) relies on express discussions between the parties as to their beneficial ownership. in the express common intention category, the court is not obliged to look for conduct from which an intention can be inferred, but only for conduct which “amounts to an acting upon it by the claimant”.20 in other words, in the express category, the common intention is already present and claimant’s conduct is only relevant to satisfy the requirement of detriment. thus, in rosset, lord bridge21 refers to detriment or a “significant alteration of position” in reliance on the 17 goodman v gallant [1986] fam 106. 18 see, for example, turton v turton [1988] ch. 542 and wright v johnson [2002] p & cr 210. an express declared trust of land must be “manifested and proved by some writing” in order to comply with the legal formalities set out in s 53(1)(b) of the law of property act 1925. 19 see, goodman v gallant [1986] fam 106, per slade lj: “if the relevant conveyance contains an express declaration of trust which comprehensively declares the beneficial interests in the property or its proceeds of sale, there is no room for the application of the doctrine of resulting, implied or constructive trusts unless or until the conveyance is set aside or rectified.” see also, pink v lawrence (1977) 36 p & cr 98, at 101, per buckley lj 20 see, grant v edwards [1986] 1 ch. 638, at 647, per nourse lj. 21 [1991] 1 ac 107 at 132. the denning law journal 39 common intention. in this connection, the relevant conduct will often involve the incurring of expenditure which is referable to the acquisition of the house, but it need not necessarily always take this form.22 let us suppose that, in burns, the parties had expressly agreed that, despite the house being placed in the male partner’s sole name, the female partner was to have some share in the beneficial interest so as to reflect her contribution towards the care and upkeep of the family. if mrs burns had then acted on the faith of that common intention (by staying at home in order to act as homemaker and carer), would she be entitled to a proprietary interest in the house under an express common intention constructive trust? in grant v edwards, the court of appeal expressed a difference of opinion as to what would qualify as conduct amounting to detriment in this category. nourse lj opined that the conduct must be such that the claimant could not reasonably have expected to embark upon unless she was to have an interest in the house.23 his lordship held that the claimant’s contribution to housekeeping expenses constituted an indirect financial contribution to the mortgage payments in so far as it enabled her male partner to pay them out of his own earnings. there was, therefore, in his view, a sufficient link between the contribution to housekeeping and the acquisition of an interest in the house. on the other hand, sir nicholas browne-wilkinson suggested that: “…any act done by [the claimant] to her detriment relating to the joint lives of the parties is . . . sufficient to qualify. the acts do not have to be inherently referable to the house.”24 his lordship noted that, in many cases, it may prove impossible to apply the test suggested by nourse lj because acts such as homemaking and child care may be linked to motives of affection as well as an intention to acquire an interest in the property. the two were, therefore, inevitably interlinked. on sir nicholas browne-wilkinson’s more relaxed formulation in grant, however, such conduct would presumably qualify as “any act done by her to her detriment relating to the joint lives of the parties”25 notwithstanding that it 22 see, for example, levi v levi, march 12 2008, unreported, available on lawtel, where an open-ended loan at an uncommercially low level of interest was held to amount to sufficient detriment to support an express common intention constructive trust. the deputy judge concluded (at para 56) that “detriment need not be great where there is an express agreement . . .” 23 ibid, at 648. 24 ibid, at 657. 25 ibid, at 657. constructive trusts and the homemaker 40 was not, strictly speaking, referable to acquisition of the house.26 indeed, his lordship refers specifically to “contributions by way of labour or other unquantifiable actions” as being relevant.27 this view is reinforced by the notion that, in the express common intention category, detriment should be seen as broadly equivalent to that required to support a claim in proprietary estoppel.28 it should be stressed, however, that although detriment may have been more loosely interpreted in this way, its relevance (in the orthodox sense) only becomes significant if the court has proof of express discussions between the parties as to their beneficial entitlement. inferred common intention in the absence of any finding of an agreement or arrangement between the parties to share beneficially, the court relies on the parties’ conduct both as a basis from which to infer a common intention and as the detrimental conduct relied on to give rise to a constructive trust.29 unlike the express common intention category, therefore, the relevant conduct serves a dual purpose when determining whether the claimant has surmounted the first hurdle of establishing a constructive trust under lord bridge’s scheme in rosset. in this situation, the court has to look for “expenditure which is referable to the acquisition of the house”.30 thus, direct contributions to the purchase price, whether initially or by payment of mortgage instalments, will readily suffice. it is now also apparent (despite lord bridge’s apparent observations to the contrary in rosset) that indirect contributions (in the shape of contributions to general household expenses thereby releasing the other party’s income to pay the mortgage instalments) may be capable of supporting a claim to a beneficial share under an inferred constructive trust.31 26 in rosset, lord bridge seems to accept this more relaxed formulation in so far as he refers to a mere “significant alteration in position” as supporting an express common intention: [1991] 1 ac 107 hl, at 137. 27 ibid, at 657. 28 significantly, in rosset, lord bridge makes reference to the express category as giving rise to both a constructive trust and proprietary estoppel. in grant, sir nicholas browne-wilkinson v-c, considered that “useful guidance” could be obtained from proprietary estoppel cases in this context: ibid, at 656. 29 see, grant v edwards [1986] 1 ch. 638, at 647, per nourse lj. 30 ibid, at 647. 31 le foe v le foe [2001] 2 flr 970. interestingly, lord walker in stack v dowden [2007] ukhl 17, at para. 26, has added to the debate by expressly doubting whether lord bridge’s observation on this point “took full account of the views . . . expressed in gissing v gissing.” his lordship noted that this observation had “attracted some trenchant criticism” from academics as potentially productive of injustice. the denning law journal 41 it is insufficient, however, according to burns, for the claimant to contribute merely towards household expenses simpliciter, purchase furniture or electrical appliances, or to do the housework, decorating or gardening, since such conduct does not manifest an intention of assisting the purchase of the house and, therefore, with the aim of acquiring some interest in the property. the reasons for this restrained approach are twofold. first, as mentioned earlier, it may be impossible to say whether or not the claimant would have done the acts relied on as detriment even if she thought she had no interest in the house. conduct such as setting-up house together, having a baby, making payments to general household expenses (which are not strictly necessary to enable the mortgage to be repaid) and looking after the family are all treated as potentially referable to the mutual love and affection of the parties and not specifically referable to the claimant’s belief that she has an interest in the property. this approach is typified by the following remarks of fox lj in burns32: “...the fact that the parties lived together and do the ordinary domestic tasks, is, in my view, no indication at all that they thereby intended to alter the existing property rights of either of them… the undertaking of such work is, i think… the sort of things which are done for the benefit of the family without altering the title to the property.” an assertion that spousal and domestic services can alter property rights is seen essentially, as reverting to the idea of the “family asset”, which has been consistently rejected by the english courts, including the house of lords in pettit v pettit33 and gissing v gissing.34 secondly, it is also apparent that the english judiciary are mindful of the fact that the wide powers conferred by the matrimonial causes act 1973, in relation to the property of married persons, do not apply to unmarried couples. hence, the court’s reluctance to take on board a broader-based jurisdiction to re-allocate property rights of de facto partners in the absence of specific statutory intervention.35 significantly, his lordship felt that, regardless whether lord bridge’s view was justified in 1990, the law had now moved on. 32 burns v burns [1984] ch. 317, ca, at 331. see also, may lj, at 345. see also, more recently, james v thomas [2007] ewca civ 1212; morris v morris [2008] ewca civ 257 and thomson v humphrey [2009] ewhc 3576 (ch). 33 [1970] ac 777, hl 34 [1971] ac 886, hl 35 see, the remarks of may lj in burns v burns [1984] ch 317, at 333: “in my view, as parliament has not legislated for the unmarried couple as it has for those who have been married, the courts should be slow to attempt in effect to legislate themselves.” constructive trusts and the homemaker 42 this stance has been reaffirmed most recently in stack, where lord neuberger made clear that mere payments towards household bills and outgoings, or merely living together for a long time, or having children would not by themselves support an intention to alter beneficial entitlement where the parties had purchased the property in joint names. such matters, in his view, were only relevant as “part of the vital background” in the sense of providing the context by reference to which any discussions or actions, subsequent to purchase, fell to be assessed by the court. presumably, the same approach (subject to what is said below) continues to apply to single ownership cases so that burns remains good law in the context of a nonowning claimant who seeks to claim a beneficial share based solely on homemaker contributions where there is no formal declaration of trust or evidence of any express discussions between the parties as to beneficial ownership. blurring the boundaries the speeches in stack, however, also evidence some blurring of the distinct boundaries between lord bridge’s rigid categorisation of common intention (whether express or inferred) and detriment in single ownership cases. on a liberal reading of the speeches of lord walker and baroness hale, in particular, there is some scope for arguing that domestic and spousal services now rank not only as factors in assessing the quantum of the parties’ beneficial interests but as contributions referable per se to the initial (or threshold) question as to whether there is the requisite common intention to support a constructive trust in the first place. lord walker makes specific reference to lord bridge’s speech in rosset stating that: “the law has [since] moved on” and suggesting that the house of lords “should move it a little more in the same direction”.36 later in his speech, he refers to the need to take “a wide view of what is capable of counting as a contribution towards the acquisition of a residence”. 37 this statement, however, appears to have been made in the context of the factors relevant to the question of quantification of the parties’ respective beneficial shares and not with specific reference to lord bridge’s second category of constructive trust in rosset. baroness hale, on the other hand, after recognising that that “we are not in this case concerned with the first hurdle”, acknowledges that “there is undoubtedly an argument for saying that . . . the observations, which were strictly obiter dicta, of lord bridge . . . have set the hurdle rather too high in certain respects.”38 in her view, however, the point did not arise for consideration because a 36 stack v dowden [2007] ukhl 17, at para 26. 37 ibid, at para. 34. 38 ibid, at para. 63. the denning law journal 43 conveyance into joint names (as in stack) was sufficient in the majority of cases to surmount the first hurdle. lord neuberger, on the other hand, although recognising that it may be difficult in the abstract to identify the factors which can be taken into account to infer a common intention under the first hurdle, specifically refers to events occurring after the acquisition of the house which may alter the beneficial interests under the trust arising initially at the date of acquisition. in this connection, he mentions a significant improvement to the home (the cost being seen as a capital expenditure) as justifying an adjustment of the parties’ beneficial ownership. on the other hand, as noted earlier, mere payments towards household bills and outgoings, or merely living together for a long time, having children would not, in his view, by themselves support an intention to alter equitable entitlement. the first significant single ownership case after stack was a privy council decision, abbott v abbott,39 with baroness hale once more delivering the leading judgment. here, the privy council considered an appeal from the court of appeal of antigua and barbuda in respect of a wife’s claim for an equitable interest in the family home which had been conveyed into the husband’s sole name. counsel on both sides unsurprisingly based their arguments on rosset. baroness hale criticised the court of appeal for attaching “undue significance” to lord bridge’s dictum as to what contributions would qualify in the inferred common intention category and approached the issues of establishing and quantifying the equitable interest in a more robust way. the facts in abbott would have allowed baroness hale to confirm that a constructive trust had indeed arisen in either of lord bridge’s categories. the husband agreed that the wife was entitled to an equitable interest in the family home (express common intention), and the wife had also made a direct financial contribution to the property via, inter alia, half of a wedding gift given to the couple (inferred common intention). rather than focusing on either of these, however, baroness hale’s judgment suggests a more flexible route to establishing a common intention constructive trust, this involves taking into account the “parties' whole course of conduct in relation to the property… in determining their shared intentions as to its ownership.”40 her ladyship looked, in particular, at the behaviour of the parties during their marriage. in this connection, the couple organised their finances entirely jointly; they were jointly liable on the mortgage and had a joint bank account from which the loan repayments were made. she decided that this was evidence to support the conclusion that the parties’ common intention was to acquire an equitable interest in the property. this approach is interesting because, although such domestic details were used in stack in the process of quantifying the parties’ shares in a joint ownership situation, in abbott, the 39 [2007] ukpc 53. 40 ibid, at 19 constructive trusts and the homemaker 44 privy council used them to justify the acquisition of an equitable interest, with little or no reference to lord bridge’s familiar two-part test. the question then is – can the abbott approach assist the burns-type claimant? it is submitted, cautiously, that it may. although in abbott, as in stack, the court concerned itself primarily with the parties’ financial – rather than domestic – arrangements, baroness hale makes clear that the parties’ “whole course of conduct in relation to the property” should be considered in determining their shared intentions. in particular, she listed a number of factors (other than just financial contributions towards the initial purchase or subsequent mortgage) which would be relevant including, notably, how the parties had agreed to arrange their finances and discharge the outgoings and household expenses. her ladyship also referred specifically to the question of whether the parties had children for whom they both had responsibility to provide a home. it is possible, therefore, in the future, that in single ownership cases, a claimant who has foregone paid employment to look after the home (burns) or to renovate it (rosset) may be more successful in establishing an equitable interest under this more relaxed route involving essentially the assimilation of the rosset two-part test into just one composite inquiry into the parties’ whole course of dealings in relation to the property. it is submitted that the primary question in all such cases is the determination of the parties’ true intentions and, as baroness hale herself makes clear in stack, this can only be properly determined by an examination of all the relevant circumstances. significantly, according to her ladyship, this includes “any advice or discussions at the time of transfer” (ie, the equivalent of express discussions pertinent to finding an express common intention in lord bridge’s first category constructive trust) as well as “how the purchase was financed both initially and subsequently” (ie, the equivalent of financial contributions relevant in determining whether an inferred common intention exists in lord bridge’s second category). the inescapable conclusion, it is submitted, is that the so-called “threshold question” enunciated in rosset (ie, as to whether there is evidence from which to raise a common intention in the first place) has become largely superfluous given that the real (and only) question is simply to discern the parties’ common intention by reference to all the relevant circumstances.41 joint ownership cases in cases where the property is purchased in joint names, equitable ownership will follow the legal title so the courts will presume that the parties intended to share beneficial entitlement equally unless the claimant’s financial 41 see stack v dowden [2007] ukhl 17, at para 59, per baroness hale. the denning law journal 45 contributions (or improvements) to the property demonstrate a common intention that he (or she) is to have a greater or enlarged share. in stack itself, the presumption of joint beneficial ownership was displaced by the fact that the claimant had contributed substantially more to the acquisition of the property both in terms of the initial outlay to the purchase money and subsequent capital repayments on the mortgage loan. it was significant also that the parties had never pooled their separate savings and investments. this aspect, in particular, pointed strongly against equal sharing. similarly, in adekunle v ritchie42 the context of the purchase of the property was very different from that of a normal purchase in joint names. the purchase was of a council house by a tenant (the mother) with the benefit of a generous (50%) discount. her son was added to the purchase solely in order for her to be able to obtain a mortgage. the main reason for the purchase was to provide her with a home. as in stack, the parties’ finances were kept separate. all these factors together pointed to the conclusion that the parties did not intend a joint beneficial tenancy. significantly, however, the presumption of joint equitable ownership was upheld in the recent case of fowler v barron43 where the parties, an unmarried couple, bought a home in joint names without any formal declaration of trust or express discussions as to their beneficial entitlement. the male partner paid the deposit and the balance of the purchase price and acquisition costs. the mortgage was taken out in joint names, although the male partner paid all the mortgage instalments. the female partner, on the other hand, like the claimant in burns, spent her income on herself and the children as well as on gifts, school clubs, trips and holidays. the court of appeal concluded that, following stack, a presumption of joint beneficial ownership arose from the fact that the couple were joint legal owners. although it was open to either party to rebut that presumption, the relevant intention to support a constructive trust had to be the parties’ shared intention (actual or inferred) so that a secret (undisclosed) intention of the male partner (ie, that his female partner should only benefit in the event of his death and on the basis that they were still living together) had to be ignored. moreover, the fact that the female partner had joined in the mortgage, notwithstanding that she was not expected to make any payment towards the discharge of the debt, was not inconsistent with the parties’ shared intention that she should be a joint beneficial owner. her nominal role, therefore, in relation to the mortgage could not by itself displace the presumption. moreover, the amount of the parties’ respective financial contributions was not decisive since: 42 (2007) wtlr 1505, leeds county court. 43 [2008] ewca civ 377. constructive trusts and the homemaker 46 “...in a family context, many more factors than financial contributions may be relevant to define the parties’ true intentions [including] ...the reasons why the home was acquired in the joint names, the purpose for which the home was acquired, the nature of their relationship and whether they had children for whom they had a shared responsibility to provide a home.”44 critically, in this case, the fact that the parties had made mutual wills in each other’s favour pointed strongly to the conclusion that each party was to have a half beneficial interest. this aside, however, the case does establish that a burns-type claimant may become entitled to an automatic half share in the property (notwithstanding the absence of any significant financial contributions to acquisition) based solely on legal title being placed in joint names. as arden lj made clear in fowler, “if the contrary [is] not proved, the mere fact that the property was transferred into their joint names [is] enough to give both parties an equal beneficial share.”45 interestingly, ms fowler, like mrs burns, had contributed 19 years to the life and well-being of the family in a number of different ways. unlike mrs burns, however, ms fowler was able to rely on her joint ownership of the home which automatically gave rise to a presumption of equal ownership in her favour. again, in rosset, had the parties purchased the property in joint names, then mrs rosset would have had no difficulty in establishing a constructive trust regardless of any contributions (trivial or otherwise) she may have made to the renovation works to the property. as in fowler, she would automatically become entitled to half of the beneficial ownership. conclusion the foregoing analysis suggests that the burns claimant (i.e., one who has made no direct or indirect financial contribution towards acquisition or capital improvement of the property) will be able to claim a beneficial share by relying not only on a formal declaration of trust but also, alternatively, on an express common intention constructive trust. in single ownership cases (in the absence of a formal declared trust), the common intention may arise from actual discussions between the parties regarding beneficial ownership coupled with conduct which amounts to an acting upon the common intention by the claimant.46 it is submitted that, in this context, contributions as homemaker will suffice to support the constructive trust. applying the formula enunciated by sir nicholas browne 44 ibid, per toulson lj, at para 56. 45 ibid, at para 34. 46 see eves v eves [1975] 1 wlr 1388 and grant v edwards [1986] 1 ch 638. the denning law journal 47 wilkinson in grant, it is enough that the detriment relates to the joint lives of the parties and need not be referable to the property itself. in the inferred common intention category, however, orthodoxy would suggest that, in the absence of financial contributions towards acquisition, a burns-type claimant would necessarily fail in satisfying the initial threshold hurdle enunciated in rosset.47 this requirement, however, now appears to have been the subject of judicial relaxation both by the house of lords in stack and, more significantly, the privy council in abbott. both these cases suggest a widening of the rosset criteria necessary to support an inferred common intention constructive trust. indeed, in abbott, despite being a single ownership case, there is no mention of the two-stage inquiry of first, establishing and, secondly, quantifying the claimant’s beneficial interest. the broad range of factors referred to in that case (ie, the husband’s admission that his wife was entitled to a beneficial share, a shared gift from the husband’s mother, joint liability on the mortgage and a joint bank account from which the loan repayments were made) appear to have sufficed for both establishing and quantifying the claimant’s interest at the same time. this, of course, would mark a significant move away from the rosset scheme and allow a burns litigant to argue for a share in the home based on a much broader inquiry of her domestic and spousal contributions to the home and family. this, in turn, would allow for a much closer assimilation between single and joint ownership cases by the application of just a single composite test for the determination of the parties’ common intention (either at time of purchase or subsequently) by reference to the whole course of dealing between the parties. indeed, it is submitted, that the claimant in burns is no less deserving of a beneficial share than the litigant in fowler. in both cases, the claimants had made no financial contribution towards acquisition, but instead provided significant domestic and spousal services to the home and family during the period of cohabitation. as in burns, ms fowler spent her income on housekeeping expenses and the children with her male partner paying all the essential outgoings out of his own resources. unlike fowler, however, mrs burns did not keep her own money in a separate account but pooled it with the allowance she received from her partner. she also purchased fixtures and fittings, redecorated the whole house and paid for several consumer appliances including a dishwasher, washing machine and tumble dryer. ms fowler’s expenditure, on the other hand, was limited to day-to-day costs on food, seasonal gifts, school clubs and trips, some personal clothing, holidays and special occasions. the fact of the matter is that, in the absence of the presumption that equity follows the law, ms fowler stands in no better 47 see most recently, james v thomas [2007] ewca civ 1212; morris v morris [2008] ewca civ 257 and thomson v humphrey [2009] ewhc 3576 (ch). constructive trusts and the homemaker 48 position than mrs burns in terms of her actual contributions to the home. in this sense, it can be said that she was no more deserving of an interest in the property than mrs burns save, of course, for the parties’ notional intention to share equally arising from their legal ownership in joint names. in other words, the outcome in fowler is different only because that is what the court infers to be the parties’ common intention in joint ownership cases. significantly, the same inference is not currently drawn in single ownership cases where the emphasis (in the absence of a declared trust or express discussions) is still on contributions of a capital nature only. despite the potential broadening of the criteria relevant to determining the parties’ common intention enunciated both in stack and abbott, the orthodox position (following rosset) is that purely domestic contributions will not by themselves be enough to give rise to a common intention except where there have been previous discussions between the parties or the parties have entered into a formal declaration of trust. this must be the inevitable conclusion if burns and rosset continue to govern the law in this area. even if the burns claimant is unable to rely on the mechanism of the constructive trust, it may still be possible to argue that the legal owner is estopped from denying the claimant’s belief that he (or she) would be given a proprietary interest in the property. in fact, there are several english decisions in the context of property rights of married (and unmarried) couples where proprietary estoppel has been invoked to award the claimant an equity in the house in single ownership cases. a notable example is to be found in maharaj v chand48 where the female claimant, in reliance on her male partner’s representations that the house would be a permanent home for her and the children, gave up her flat and used her earnings for household requirements and looked after the family. the privy council had no difficulty in holding that the claimant had established an estoppel equity to reside permanently in the property. in the absence, however, of any assurance on the part of the legal owner, the claimant would not have fared any better than the female litigant in burns.49 there is currently a cohabitation bill in its 2nd reading before parliament. if the bill becomes law, then a former cohabitant will be able to apply to court for a financial settlement order in relation to the parties’ former family home. although the claim will be based on status (rather than on the law of trusts), the court will be able to take a number of matters into account in determining whether to make an order, including (significantly) the contribution which each of the parties has made in the course of their living together as a couple, in particular, looking after the home or caring for any relevant child: clause 9(d)(i). significantly also, the court will need to consider “any economic 48 [1986] ac 898, pc contrast, coombes v coombes [1986] 1 wlr 808. 49 see for example, windeler v whitehall [1990] 2 flr 505. the denning law journal 49 disadvantage to which, in consequence of having lived together as a couple, each of the parties remains subject or is likely to remain subject in the foreseeable future”: clause 9(f). this will, undoubtedly, have an important impact on the burns claimant allowing the court, for the first time, to take into account on a statutory footing non-financial contributions as homemaker and child carer in determining beneficial entitlement. whether the bill actually becomes law, however, is yet to be seen. in the meantime, english law in this area continues to remain in a state of judicial flux. abstract introduction express declaration of trust single ownership cases express common intention inferred common intention blurring the boundaries joint ownership cases conclusion the denning law journal 271 denning law journal 2007 vol 19 pp 271-278 case commentary female genital mutilation – violence against girls and women as a particular social group fornah v secretary of state for the home department, house of lords [2006] ukhl 46, [2006] 3 fcr 381, [2007] 1 all er 671 susan edwards∗ facts zainab esther fornah was fifteen years old when on 15th march 2003, as an unaccompanied minor, she arrived at uk’s gatwick airport claiming asylum. as she was a child she was taken into the care of west sussex social services child asylum team.1 she had fled sierra leone where she had been captured by rebels, who had killed her family, and was repeatedly raped. she did not want to return to her uncle’s village fearing that she would be forcibly genitally mutilated, as was customary practice. whilst her father was alive he was able to protect her from this practice. female genital mutilation, has variously been described as female circumcision and as clitoridectomy, as if to render benign this very specific inhumane habituated practice against females. it involves cutting away the clitoris, labia minora, labia majora and vulva of a female. the area remaining is then sewn together leaving a small aperture to allow for menstruation and urination. this maiming is often perpetrated without anaesthetic and some children do not survive. the world health organisation defines this particular form of torture, somewhat blandly, as “the partial or complete removal of the external female genitalia or other ∗ professor of law, university of buckingham; barrister, (door tenant) clarendon chambers, plowden buildings, temple, london. 1 according to the children’s charity barnardo’s, “the majority of authorities have no specific policies to work with unaccompanied children (72%), they have not included them in their management action plans under the quality protects initiative (62%) or in the department of health’s ‘new assessment frameworks” (74%). more than a third of authorities place unaccompanied children outside the responsible borough with very varied levels of support then available. see: http://www.harpweb.org.uk/content.php?section=children&sub=ch19 http://www.harpweb.org.uk/content.php?section=children&amp;sub=ch19 case commentary 272 injury to the female genital organs whether for cultural or any other nontherapeutic reason.”2 under the (convention and protocol relating to the status of refugees (1951)3 refugees claiming asylum must fulfil the conditions set out in paragraph 2. “(2) as a result of events occurring before 1 january 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. in the case of a person who has more than one nationality, the term ‘the country of his nationality’ shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.” zainab’s case was taken up by brighton housing trust4 and an application made for asylum.5 the secretary of state accepted her application but refused her claim giving two reasons for this decision. first, that the practice of ‘female circumcision’ did not come within the definition of ‘persecution’ under the convention, and second, girls at risk of ‘circumcision’ in sierra leone did not form a ‘particular social group’ within art 1a(2). (although he had since granted her leave to enter on humanitarian grounds under art 36 of the european convention on human rights (echr) which entitled her to remain for three years in the uk). mr m r oliver, the adjudicator, disagreed. he found first, that female genital mutilation amounted to persecution and that the claimant had a well-founded fear of it. and second, he found that the feared persecution was because of her membership of a ‘particular social group’ of “young, single sierra leonean women, who are clearly at considerable risk of enforced . . . [female genital mutilation].” 7 the secretary of state then appealed to the immigration appeal tribunal (iat) (mr richard chalkley, chairman, mr m j griffiths 2 who definition, see http://www.who.int/mediacentre/factsheets/fs241/en/ 3 (cmd 9171) and (1967) (cmnd 3906). 4 dedicated to addressing the problem of homelessness and associated problems in brighton and hove. (brighton housing trust immigration legal service, solicitor for zainab fornah, ms jen henwood). 5 ‘free from abuse’ jean calder for the morning star, november 10, 2006. 6 right to be free from inhuman and degrading treatment. 7 fornah v secretary of state for the home department court of appeal [2005] ewca civ 680, [2005] 3 fcr 449, quoted by lord justice auld, para 5. http://www.who.int/mediacentre/factsheets/fs241/en/ the denning law journal 273 and mrs g greenwood), who reversed the decision of mr oliver, the adjudicator. the claimant appealed to the court of appeal which upheld the decision of the iat. the claimant then appealed to the house of lords. the house were unanimous in their decision to overturn the decision of the court of appeal and reinstate the original decision of the adjudicator. court of appeal in the court of appeal, lord justice auld, lord justice chadwick and lady justice arden (dissenting)8 agreed unanimously that female genital mutilation was “an evil practice internationally condemned.”9 they then considered first, whether there was a well-founded fear of persecution and second, whether that fear fell within one of the five reasons listed in article 1a(2). in consideration of the first question, the court found that there was a well-founded fear. in consideration of the second question, whilst lord justice auld recognised that the concept of ‘particular social group’ was ‘elusive,’ the court concluded that zainab fornah was not a member of a particular social group because the practice of fgm was accepted, and also that women undergoing such a practice were accepted into the society because of it. lord justice auld said, “to confine the grouping to young, single girls who, for the time being, have not been circumcised, though logical, would be contrary to the general rule that it is impermissible to define the group solely by reference to the threat of the persecution.”10 lord justice chadwick concurred and in his interrogation of the meaning and application of ‘particular social group’ said, “the unifying characteristic of the social group in the present context is not gender alone; it is gender coupled with what arden lj (whose judgment i have had the advantage of reading in draft) refers to as ‘intactness’that is to say, absence of the particular form of fgm practised by women on women in sierra leone.”11 lady justice arden (dissenting) argued that it was the intactness (perhaps an inapt expression) that defined the group and on that basis held that miss fornah was a member of a particular social group. she stated: 2the fact that members of the group lose their common characteristic of intactness as a result of persecution must be discounted. to take account of that factor and conclude that this characteristic is not immutable for the purposes of the acosta test, would be to conclude, in the case of persecuted 8 ibid. 9 ibid, per lord justice auld, para 1. 10 ibid, para 44.4. 11 ibid, lord justice chadwick, para 52. case commentary 274 left-handed people, that they could not constitute a particular social group for the purposes of the refugee convention because, when the persecution succeeds, they no longer have their left hands.”12 the court of appeal held that fgm was not a practice that fell within the definition of persecution under the convention because girls at risk of circumcision in sierra leone did not form a particular social group within article 1a(2). the court also took the view that the authorities in sierra leone would protect the claimant. although the court recognised that “this was not an area for rigid application of principle to infinitely variable national and social contexts in which fear of persecution was put forward as a claim for asylum.”13 the claimant then appealed to the house of lords. house of lords the house of lords (lord bingham of cornhill, lord hope of craighead, lord rodger of earlsferry, baroness hale of richmond and lord brown of eaton-under-heywood) were unanimous in condemning the practice, as had the court of appeal. but most importantly the house of lords were unanimous in finding that sierra leonean women were members of a particular social group on the basis of gender. as lord bingham identified, “the very limited issue between the parties is whether the … appellant was a member of a particular social group, however defined.”14 persecution on the basis of gender first, and intact women in the alternative lord bingham and lord hope held that sierra leonean women were members of a social group of women who were perceived by society as inferior and that it was not necessary to define the group with reference to the persecution. lord bingham concluded, as did lord hope of craighead that gender per sé fell within the definition of ‘particular social group.’ “i think it clear that …women in sierra leone are a group of persons sharing a common characteristic which, without a fundamental change in social mores is unchangeable, namely 12 ibid, lady justice arden, para 67. 13 ibid, lord justice auld, para 15. 14 (fornah v secretary of state for the home department), k v secretary of state for the home department; fornah v secretary of state for the home department house of lords [2006] ukhl 46, [2006] 3 fcr 381, [2007] 1 all er 671, para 25. the denning law journal 275 a position of social inferiority as compared with men. they are perceived by society as inferior. that is true of all women, those who accept or willingly embrace their inferior position and those who do not. to define the group in this way is not to define it by reference to the persecution complained of: it is a characteristic, which would exist even if fgm were not practised……. fgm is an extreme expression of the discrimination to which all women in sierra leone are subject, as much those who have already undergone the process as those who have not. …i find no difficulty in recognising women in sierra leone as a particular social group for purposes of art 1a(2). had this submission been at the forefront of the second appellant’s case in the court of appeal, and had that court had the benefit of the unhcr’s very articulate argument, it might, i think, have reached the same conclusion. if, however, that wider social group were thought to fall outside the established jurisprudence, a view i do not share, i would accept the alternative and less favoured definition advanced by the second appellant and the unhcr of the particular social group to which the second appellant belonged: intact women in sierra leone. this was the solution favoured by arden lj, and in my opinion it meets the convention tests.”15 lord hope said, “i would avoid attempting to define the class so as to confine it to the persons who are likely to be persecuted. it is enough that it should identify the shared characteristic-the common denominator.”16 a preference for the lady justice arden solution lord rodger and lord brown preferred the arden solution, that ‘particular social group’ was satisfied by being a member of a group of girls/young women who had not undergone the practice of fgm and were facing that inevitability. lord rodger said, “the harm is ‘gender-specific.’ so, being a woman is a causa sine qua non of being a victim: in other words, ‘but for’ being a woman, the persons concerned could not be selected as victims of the practice although accepted that that may well be an oversimplification.”17 and then went on to say, “ … i am satisfied that the appellant belongs to the 15 ibid, para 31. 16 ibid, para 58, per lord hope. 17 ibid, para 74. case commentary 276 group of uninitiated intact women who face persecution by enforced mutilation. if i am wrong in choosing that more limited group, then i would, of course, accept that the appellant falls within the larger social group of women and girls who face enforced mutilation.”18 similarly, lord brown stated, “ … i myself would prefer to define the relevant group (in line with arden lj’s dissenting judgment in the court of appeal) as ‘uninitiated indigenous females in sierra leone’ (as formulated by lord hope of craighead at [56], above and proposed by lord rodger of earlsferry at [74], above, and essentially for the reasons they give-principally to exclude the majority of women who have already been initiated and are plainly no longer at risk). that said, i do not disagree with lord bingham and baroness hale of richmond that the group could if necessary be more widely defined to include even the initiated on the basis that all sierra leonean…”19 gender persecution – in its own right ‘blindingly obvious’ baronness hale considered the issue of whether miss fornah belonged to a particular social group ‘blindingly obvious’. she took a more robust stance finding that gender in itself was sufficient to engage the ‘particular social group’ within the convention. she said, “the stumbling block seems to have been the fact that fgm is a once and for all event. once done, it can neither be undone nor repeated. thus, it was argued, if many members of the group are no longer at risk, because they have already suffered, it can no longer constitute a group for this purpose. but if the group has to be defined only to include those at risk, it then looks as if the group is defined solely by the risk of persecution and nothing more. this is a peculiarly cruel version of catch 22: if not all the group are at risk, then the persecution cannot be caused by their membership of the group; if the group is reduced to those who are at risk, it is then defined by the persecution alone. but the reasoning is fallacious at a number of levels. it is the persecution, not the fear, which has to be ‘by reason of’ membership of the group. even if the group is reduced to those who are currently intact, its members share many characteristics which are independent of the persecution-their gender, their nationality, their ethnicity. it is those characteristics which lead to the persecution, not the persecution itself which leads to those characteristics. but there is no need to reduce the group to those at risk.”20 18 ibid, para 80. 19 ibid, para 119. 20 ibid, paras 112-113. the denning law journal 277 discussion international human rights law, like law itself, has been impervious to women’s rights. there has been a failure to create a nexus between violence against women21 and international human rights because a masculinist notion of human rights22 has set the agenda. in addition, the convention is legally and linguistically limited. one may have fear for all sorts of reasons but the fear must fall within the convention because of one of the reasons in the categories. that element was identified by lord hoffmann in shah as being a question of causation. zainab’s case is ground breaking in recognising and making visible gender based persecution.23 baroness hale said that this case was ‘blindingly obvious’ and yet it had to reach the house of lords for what was also obvious to the adjudicator to be conceded. asylum decisions are not determined in a legal vacuum, the courts are not hermetically sealed from the wider discussions, theoretical, philosophical and in the public domain. presently asylum applications have been declining in the uk24 which perhaps is more a reflection not of a diminution in persecution but an increasing global awareness of the uk’s tough asylum regime with regard to adults and also as this case demonstrates unaccompanied minors.25 this momentous ruling owes 21 violence against women takes many forms including domestic violence, rape, female circumcision, forced marriage amongst others. sexual and physical violence against women is the most global, historic and recalcitrant dimension of women’s oppression. 22 h charlesworth, ‘internal relations theory, international law, and the regime governing atrocities in internal conflicts’ ajil [1999] vol 93, no 2, p 361 at 382. 23 per lord hoffman in r v immigration appeal tribunal, ex p shah (united nations high comr for refugees intervening), islam v secretary of state for the home dept (united nations high comr for refugees intervening) [1999] 2 all er 545, [1999] 2 ac 629, at 653a/655. 24 the total number of applications for asylum (excluding dependants) fell to 5,275 in the quarter, and to 23,520 for 2006, down 9% on the previous year. top applicant nationalities in the last quarter were iran, afghanistan, eritrea, china. 25 ‘in 2005, 2,965 unaccompanied asylum seeking children (uascs) aged 17 or under applied for asylum in the united kingdom, 1 per cent less than in 2004 (2,990). of these, 445 were made at port and 2,520 in-country. the main countries of origin were afghanistan 530 (18 per cent), iran 450 (15 per cent), somalia 235 (8 per cent), eritrea 195 (7 per cent), iraq 170 (6 per cent), china 170 (6 per cent), dem rep of congo 145 (5 per cent), vietnam 2,560 initial decisions were made in 2005 on uascs who were aged 17 or under at the time of the initial decision. of these, 140 (5 per cent6) were granted asylum, 20 (1per cent) were granted humanitarian protection, 1,960 (69 per cent) were granted discretionary leave and 440 (15 per cent) were refused’. asylum statistics united kingdom 2005, tina heath, richard jeffries and sara pearce, 10/06, home office statistical bulletin, p 10. see also a long way to go http://www.ingentaconnect.com/content/external-references?article=0002-9300(1999)93:2l.361[aid=3525438] case commentary 278 much to the indefatigability of the legal team who had to fight ‘tooth and nail.’ young refugees and asylum seekers in the uk eleanor stringer and tris lumley, april 2007. (research supported by the city parochial foundation and the esmée fairburn foundation) new philanthropy capital. two kinds of justice: human and devine the denning law journal 151 the denning law journal 2008 vol 20 pp 151-171 review article crimes against humanity: the struggle for global justice geoffrey robertson (3rd ed, penguin books, london 2006) paperback, pp 627, isbn 10: 0 141 02463 1, £14.99 james slater∗ introduction crimes against humanity: the struggle for global justice (“cah”) is a political, moral, legal and polemical work: as such, it is a comprehensive attempt to address the evils that, in the broadest sense of the concept, constitute crimes against humanity. the book is wide ranging, illuminating and entertaining. it is written in a lively and accessible style. robertson is not afraid to make his position clear, often with a hard-hitting adjective or caustic aside, which gives the work a refreshing honesty that a more measured or academic approach might avoid. the moral, though not economic or pragmatic, case robertson makes for the universal, coherent, consistent and systematic protection of human rights across the globe is compelling, and the broad-brush strokes of his argument, and much of its detail, is hard to disagree with. generally speaking, i am therefore in agreement with robertson’s objectives as set out in cah, and the methodology he wishes to see used in order to achieve those objectives. there is much to praise in cah, and it is a valuable contribution to the global promotion and protection of human rights and humanitarian values. however, it also has flaws. i do not propose a comprehensive examination of these flaws in this review, nor do i propose to summarise critically the content of cah in the manner of traditional reviews. instead i will focus on what i consider to be the most significant flaws. these manifest themselves in two contexts: theoretical and practical. the theoretical flaws flow from a certain conceptual vagueness that lies at the heart of cah. cah is rich in references to legal and moral concepts or concepts that straddle both categories. thus robertson refers to justice, international law, torture, ∗ ba (sussex), llm (harvard), phd (birmingham), lecturer in law, the university of buckingham. i would like to thank jonathan black-branch for his comments on an earlier draft, and douglas guilfoyle for his general input and invaluable assistance with matters of international law. the usual disclaimers apply. crimes against humanity: the struggle for global justice 152 terrorism, atrocities, genocide, human rights, liberty, war crimes and crimes against humanity. but there is no sustained attempt to explain the meaning of these concepts, or the complex relationship between them. this would not necessarily matter, not least because cah is meant to be a popular work accessible to non-specialists. but i will argue that it unavoidably matters in two key areas: first, given robertson’s faith in the notion of human rights and its declared central importance to cah,1 it matters because the concept at the heart of the work needs to be defended in some detail to give the book meaning; second, it matters because robertson’s conceptual vagueness leads him into serous error where the european court of human rights case of sahin v turkey is concerned, and into unacceptable superficiality where the bombings of hiroshima and nagasaki are concerned. the practical flaws of cah are two-fold. first, there is a failure by robertson to engage fully with the practical implications and consequences of his arguments. robertson is correct to kick up a fuss, but he is not sufficiently concerned with governance and the responsibilities that come with it. he fails to see that lawyers at one level only react, but that his project is not exclusively one of criticism from the outside, but direct and constructive activity from the inside. second, robertson fails to place the legal and courtbased approach that he favours into the wider economic, cultural and political framework for promoting humanitarian goals. throughout cah, robertson exhibits an almost blind faith in legal norms and legal mechanisms as the best way of achieving global justice, and in so doing fails to demonstrate awareness of the potential of other norms and mechanisms in achieving his humanitarian agenda. the theoretical flaws human rights: defence and definition any serious attempt to address the concept of human rights inevitably faces the question of their origin. crudely put, this question takes the following form: is it universally true that humans are endowed with human rights, or are human rights the creation of certain value systems and cultures, and therefore specific to them?2 this question is not merely of academic interest, as it is intertwined with the justification for the universal application and enforcement of human rights norms across cultures, societies and political 1 robertson declares in the preface: “but this is not a text book on legal procedures. it aims to tell the human rights story…”, see xv. 2 this is a feature of what is sometimes called the normative debate about rights: for a discussion, see n e simmonds central issues in jurisprudence (london: sweet and maxwell, 2002) chapter 8 “rights” generally. the denning law journal 153 systems. if subscription to human rights principles is one view of life amongst many, then imposing them on cultures, societies etc that reject them is a form of imperialism an assertion that one culture, or view of life, is better than another. however, if it universally true that all humans possess certain key rights, then the imperialist claim is undermined, and it becomes incumbent on the international community and domestic powers to prevent and punish the crimes that constitute violations of human rights. or perhaps the best view lies somewhere in between these two extremes, in the sense that possession of human rights may not be an anthropological fact immune to geography, culture and the passage of time, but nevertheless respect for the concept of human rights is useful or correct for the human race at this point in socioeconomic and political development. as jack donnelly puts it, the “universality of human rights is a moral claim about the proper way to organise social and political relations in the contemporary world, not an historical or anthropological fact”.3 such a view, whilst retaining a strong faith in human rights, remains sensitive to the context in which they are to be applied. i will explore this notion of contextual sensitivity further when i address the practical flaws in cah. what is disappointing about cah is that, in a major work of 627 pages, in which the concept of human rights is a central concern, there is no serious attempt to engage with the above theoretical debate. instead, robertson treats the objective status of human rights as more or less self-evident.4 thus in the epilogue, he states: “but human rights principles afford individuals such elemental protections against the state that they are sought by intelligent beings everywhere”.5 this statement is followed by a sustained attack on the notion of cultural relativism, in the form of a list of certain barbaric practices followed by rhetorical statements to the effect that cultural relativism cannot excuse such barbarity.6 unfortunately this is not an argument, or at least it is 3 “the social construction of international human rights” in tim dunne and nicholas j wheeler (eds) human rights in global politics (cambridge: cambridge university press, 1999) p 71, p 81. i owe my awareness of this quote to mariebénédicte dembour's who believes in human rights? reflections on the european convention (cambridge: cambridge university press, 2006) p 3. 4 there is a semblance of an argument at p 38, where robertson states that there is nothing culture dependent or western in the universal declaration of human rights because the rights articulated within it have been flouted “by governments of every creed and colour”, including those of western powers (or at least with their connivance). however, this is not a successful argument: the fact that principles are universally flouted lends no support to the notion that those principles are objectively true. whether principles are respected or flouted, universally or selectively, is neutral on the question of their objective truth. 5 p 612. 6 pp 612-613. crimes against humanity: the struggle for global justice 154 not a complete argument: what is needed is some interrogation of the claims to objectivity made by universal rights. there is plenty of material from which to plunder, not least the works of john rawls,7 john finnis,8 ronald dworkin9 and robert nozick.10 these thinkers, or at least some of them, should have received sustained attention in cah. furthermore, robertson’s claim that human rights principles are subscribed to by intelligent beings everywhere, at least unreservedly, is not true. the negative critiques offered by realist, utilitarian, marxist, relativist, feminist, and communitarian philosophies are not explored by robertson.11 a more sustained engagement with the various schools of thought that are, at the very least sceptical of, if not in outright opposition to, human rights would have been appropriate.12 robertson may be correct that subscribing to human rights principles is the best way to manage the relationship between the individual or group on the one hand, and the state and other forms of public power on the other,13 but this claim should be backed up by some lengthy argument, rather than treating the question as self-evident. thus the general case for the existence and objective nature of human rights should have been thrashed out in considerably more detail than robertson offers in cah. the theoretical heart of the book is missing, a theoretical heart necessary to give cah its full moral and legal impact. theoretical debate about human rights does not end there. there is also the question of the moral and legal architecture of human rights.14 the starting point of such a debate is a theoretical definition of a right. and in a book where the notion of a right is central, one would expect such a theoretical definition, even though it need not be overly complex. yet despite this central concern, there is not a single attempt to define a right theoretically in cah’s 7 see, in particular, a theory of justice revised edition (oxford: oxford university press, 1999). 8 see, in particular, natural law and natural rights (oxford: oxford university press, 1980). 9 see, for example, taking rights seriously (london: duckworth, 1977). 10 see, in particular, anarchy, state and utopia (oxford: basil blackwell, 1974). 11 an excellent analysis of the realist, utilitarian, marxist, relativist and feminist critiques can be found in dembour, above n 3. for a leading example of communitarian critique, see michael sandel liberalism and the limits of justice (cambridge: cambridge university press, 1998). 12 robertson mentions bentham and marx, but their critiques receive only brief attention: see pp 16-18. 13 robertson does not analyse against whom or what exactly human rights are asserted. there is much talk of the state, but there is also mention of large corporations: see, for example, pp 138 and 611. cah would be greatly improved by a fairly detailed theoretical exploration of the various forms of power, public or otherwise, against which respect for human rights supplies necessary protection. 14 this is sometimes known as the analytical debate about rights: see above n 2. the denning law journal 155 627 pages. one would expect at the very least mention of wesley n hohfeld and the contrast between liberties, residual and negative in nature as robertson acknowledges at the outset of cah,15 and rights properly socalled, positive in nature and capable of trumping positive law.16 this failure to define a right is a flaw in and of itself, but it also has repercussions for the quality of robertson’s analysis more generally. i shall illustrate this with robertson’s discussion of the european court of human rights (the “court”) case of sahin v turkey,17 where the court addressed a ban issued by istanbul university on women wearing the islamic headscarf on university premises. before addressing the flaws in robertson's analysis of this case, however, it is necessary to summarise the content of the decision in some detail. sahin v turkey the question for the court in sahin v turkey was whether a ban on women wearing the islamic headscarf by istanbul university was compatible with article 9 of the european convention for the protection of human rights and fundamental freedoms, the article that enshrines, inter alia, freedom of religion. it is worth quoting article 9 in full: 1. everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. the court held that the ban had infringed the applicant’s right to manifest her religion,18 so attention turned to the legitimate limitations that could be 15 p 1. 16 hohfeld’s arguments were set out in two famous articles: “some fundamental legal conceptions as applied in judicial reasoning” (1913) 23 yale law journal 16 and “fundamental legal conceptions as applied in judicial reasoning” (1917) 26 yale law journal 710, reprinted in w w cooke (ed) fundamental legal conceptions as applied in judicial reasoning (new haven: yale university press, 1964). hohfeld’s ideas have generated an enormous amount of literature. for a discussion, see, inter alia, n e simonds central issues in jurisprudence, above n 2, pp 275-293. 17 (2007) 44 ehrr 5. 18 ibid, at para [78]. crimes against humanity: the struggle for global justice 156 placed on that right by article 9(2). the court’s task was therefore confined to determining whether the reasons given for the interference were relevant and sufficient, and the measures proportionate, to one or more of the legitimate societal aims articulated by article 9(2). the court came to the conclusion that the ban was proportionate to those aims, specifically turkey’s avowed intention of promoting pluralism and secularity in a society where religious symbols were gathering a certain amount of negative political significance. the court accepted that secularism and pluralism were legitimate social aims that could, in principle, justify restrictions on religious freedom.19 in this regard, the court was conscious of the political effect of wearing the headscarf; it stated: “...when examining the question of the islamic headscarf in the turkish context, there must be borne in mind the impact which wearing such a symbol, which is presented or perceived as a compulsory religious duty, may have on those who choose not to wear it. ... [t]he issues at stake include the protection of the ‘rights and freedoms of others’ and the ‘maintenance of public order’ in a country in which the majority of the population, while professing a strong attachment to the rights of women and a secular way of life, adhere to the islamic faith. imposing limitations on freedom in this sphere may, therefore, be regarded as meeting a pressing social need by seeking to achieve those two legitimate aims, especially since ... this religious symbol has taken on political significance in turkey in recent years.”20 this particular political environment was emphasised by the court: “... the court does not lose sight of the fact that there are extremist political movements in turkey which seek to impose on society as a whole their religious symbols and conception of a society founded on religious precepts...”21 the conclusion of the court was therefore as follows: “having regard to the above background, it is the principle of secularism, as elucidated by the constitutional court, which is the paramount consideration underlying the ban on the wearing of 19 ibid, at paras [104] to [116]. 20 ibid, at para [115]. 21 ibid. the denning law journal 157 religious symbols in universities. in such a context, where the values of pluralism, respect for the rights of others and, in particular, equality before the law of men and women are being taught and applied in practice, it is understandable that the relevant authorities should wish to preserve the secular nature of the institution concerned and so consider it contrary to such values to allow religious attire, including, as in the present case, the islamic headscarf, to be worn.”22 once it was established that the university was seeking a legitimate aim within the context of article 9(2), the next stage of the court’s analysis was whether the ban was proportionate to that aim.23 giving the university a wide margin of appreciation, the court came to the conclusion that it was proportionate: “by reason of their direct and continuous contact with the education community, the university authorities are in principle better placed than an international court to evaluate local needs and conditions or the requirements of a particular course. besides, having found that the regulations pursued a legitimate aim, it is not open to the court to apply the criterion of proportionality in a way that would make the notion of an institution’s ‘internal rules’ devoid of purpose. article 9 does not always guarantee the right to behave in a manner governed by a religious belief and does not confer on people who do so the right to disregard rules that have proved to be justified.”24 robertson comments on the case as follows: “religions and cults are riddled with sexist and superstitious practices: the overdue message of sahin is that they will receive scant protection if there is a rational justification for denying them public display in places or at times when they are calculated to cause offence or disharmony.”25 this statement wholly misrepresents the decision in a number of ways, which i propose to explore. robertson states that the ratio of sahin is that public displays of religious symbols can be restricted when there is a rational justification for so doing, and the display is calculated to cause offence or disharmony. this is wrong 22 ibid, at para [116]. 23 ibid, at para [117]. 24 ibid, at para [121]. 25 p 122. crimes against humanity: the struggle for global justice 158 for two reasons. first, rational justification is too wide and too lenient a justificatory concept for denying the freedom: as article 9(2) and the court makes clear, the limitation must be proportionate to a legitimate societal end as enunciated in article 9(2), and this analysis will take place in a particular cultural, historical and political context. the point about context is worth emphasising because no general rule should be extracted from sahin; as susan edwards argues with regard to the decision, turkey “is an islamic state de facto; where the population is majority muslim; and where the endeavour is to ban what turkey regards as a symbol and representation of a past era which was repressive.”26 thus robertson should be far more circumspect in concluding that sahin sends out a general message. secondly, the court made no mention of a requirement that the display be calculated to cause offence or disharmony: the court did not require such a guilty mind on behalf the person making the public display of religious affiliation in order to justify the limitation. in fact, as the dissenting judgment of judge tulkens (belgium) pointed out: “first, the [majority] judgment does not address the applicant’s argument--which the government did not dispute--that she had no intention of calling the principle of secularism, a principle with which she agreed, into doubt. secondly, there is no evidence to show that the applicant, through her attitude, conduct or acts, contravened that principle.”27 indeed, as tulkens went on to observe: “freedom to manifest a religion entails everyone being allowed to exercise that right, whether individually or collectively, in public or in private, subject to the dual condition that they do not infringe the rights and freedoms of others and do not prejudice public order. 26 “imagining islam…of meaning and metaphor symbolising the jilbab – r (begum) v headteacher and governors of denbigh high school” (2007) 19 child and family law quarterly 247, at 268. 27 above n 17, at para [o-ii7]. see also para [101]. see also nicholas gibson “faith in the courts: religious dress and human rights” (2007) 66(3) cambridge law journal 657, at 671-672: “furthermore, no account is taken of, or answer given to, ms sahin’s evidence that her wearing the headscarf had neither the object or effect of threatening public order or the rights and freedoms of others. as to her object, ms sahin stated her decision was one of religious conviction. she had no intention of protesting, pressurising, provoking or proselytising by doing so: she supported secularism. neither turkey nor the court contradict these assertions.” robertson would do well to read gibson's excellent analysis of the flaws in the court’s judgment. the denning law journal 159 as regards the first condition, this could have been satisfied if the headscarf the applicant wore as a religious symbol had been ostentatious or aggressive or was used to exert pressure, to provoke a reaction, to proselytise or to spread propaganda and undermined or was liable to undermine the convictions of others. however, the government did not argue that this was the case and there was no evidence before the court to suggest that ms sahin had any such intention. as to the second condition, it has been neither suggested nor demonstrated that there was any disruption in teaching or in everyday life at the university, or any disorderly conduct, as a result of the applicant's wearing the headscarf. indeed, no disciplinary proceedings were taken against her.”28 thus robertson’s argument that the ban was justified by the court, in part or in whole, because the wearing of the headscarf was calculated to cause offence or disharmony misrepresents the facts and rationale upon which the decision was reached. it is worth noting at this point that robertson’s comment on why the sahin decision was justified is in serious tension with, if not antinomous, to his approach to the publication, in denmark, of cartoons featuring the prophet. he states with regard to the latter event: “but expression cannot be free without the right to shock and offend and certainly not without the right to satirize and ridicule religions of all kinds”.29 yet the need to prevent the causing of offence was one of the very reasons, according to robertson, that the court was correct to deny the right to wear the islamic headscarf in sahin. the existence of a tension between the result in sahin and a more protective attitude where freedom of expression is concerned was pointed out by tulkens: “unless the level of protection of the right to freedom of religion is reduced to take account of context, the possible effect which wearing the headscarf, which is presented as a symbol, may have on those who do not wear it does not appear to me, in light of the court’s case law, to satisfy the requirement of a pressing social need. mutatis mutandis, in the sphere of freedom of expression, the court has never accepted that interference with the exercise of the right to freedom of expression can be justified by the fact that the ideas or views concerned are not shared by everyone and may even offend some people.”30 28 ibid, at para [o-ii8]. 29 pp 614-615. 30 above n 17, at para [o-ii9]. crimes against humanity: the struggle for global justice 160 the attitude of the court to freedom of expression makes sense: it is logical that in the marketplace of ideas, the frank exchange of views will at some point cause offence, with the result that silencing opinion on such a ground will have an undesirable chilling effect on the quality and integrity of debate, with potentially negative effects on intellectual progress and flourishing. and if freedom of expression is accorded protection on such grounds, it would seem appropriate, at least at first blush, that religion be accorded similar protection. religion is rich in moral, intellectual, philosophical and spiritual content, and, on occasion, the expression of that content will provoke and offend those who subscribe to secular or other religious viewpoints. consistency would therefore seem to require that the expression of religious ideas, in its many forms, be accorded similar protection to the expression of ideas generally. i am not claiming that, ultimately, the sahin decision and the right to publish the danish cartoons cannot be reconciled, but robertson makes no attempt to do so. instead of offering reasoned analysis of why he adopts different approaches to the two freedoms, all that emerges from robertson’s analysis of sahin and the danish cartoons is his distaste for religion.31 in fact, cah lacks the conceptual armory to achieve that reconciliation, which may in part explain why the tension escaped robertson’s attention. and this lack of conceptual analysis betrays another problem with robertson’s treatment of sahin. the notion of value neutrality has a central role in the concept of respect for human rights. the idea is that the state should be neutral on certain substantive political and moral issues, leaving such questions to the individual conscience of its citizens.32 thus the right to freedom of expression exists, in part, because the state should not declare only certain viewpoints acceptable, whilst silencing others, since to discriminate in 31 another example of robertson’s distaste for religion is his highly misleading, if not false, attack on the catholic notion of confession: he states that the worst crimes against humanity in latin america “were committed by devoted members of a roman catholic faith that offers forgiveness in exchange for a secret confession”, p 327. if i have understood robertson correctly, he means by this that such crimes can be committed with a happy heart because forgiveness is automatically obtained. if this is robertson's point, he should know that confession without genuine contrition/repentance, which includes the determination not to sin again, is useless according to catholic dogma: see para 303 of the compendium of the catechism of the catholic church (libreria editrice vaticana, 2005). it is also worth noting that this empirical claim is not backed up by a footnote, and, though it may be true, i am certainly curious as to the source of this statistic. 32 this idea is well captured in the philosophies of john rawls and ronald dworkin, with their notion of state neutrality where competing visions of the good life are concerned: see above ns 7 and 9. the denning law journal 161 such a way would violate the state’s obligation of neutrality. the same rationale underpins the freedoms of association and religion. rights therefore represent pockets of freedom into which the state cannot venture simply upon the basis of substantive disagreement with how the freedom is exercised. the state must be morally relativist. the problem with robertson’s summary of sahin, specifically his references to “superstition” and “sexism”, is that it justifies the ban in terms of freewheeling moral debate, and this betrays the value neutrality that state respect for human rights entails. first, in his reference to superstition, robertson appears to be saying that the court was supporting rationality in opposition to the irrational; however, it is not the role of the court to debate the substantive merits of rationality and secularism versus religion.33 entering such a debate, and then upholding the ban in part because the conclusion is reached that islam is associated with superstitious practices, would betray the state’s neutral role where religion is concerned. secondly, the state cannot silence or restrict religious freedom because it perceives the exercise of that freedom as sexist, as this once more involves a substantive disagreement with the practice itself, and, again, betrays the state obligation of neutrality. the court itself articulated this requirement for state neutrality: “the court has frequently emphasised the state’s role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs, and stated that this role is conducive to public order, religious harmony and tolerance in a democratic society. it also considers that the state’s duty of neutrality and impartiality is incompatible with any power on the state’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed….”34 and, in light of this fact, superstition and sexism did not feature in the court’s reasoning for upholding the ban: turkey was successful by arguing that the values of secularism and plurality, legitimate political objectives that were being pursued in a particular cultural, historical and political context, were sufficient for the case in hand to justify the ban. this is a very particular type of justification that does not engage in debate regarding the merit of islam, but rather the societal effect of its practice; the court was concerned with values that are macro and organisational in nature, values aimed at securing a certain kind of political and social framework in which individual liberty can prosper. neither the university nor the court was passing 33 after all, many, if not all of the world’s religions have a superstitious element; for example, where christianity is concerned, the virgin birth, prayer and, for catholics, transubstantiation, are all superstitious. 34 above n 17, at para [107]. crimes against humanity: the struggle for global justice 162 comment on whether the practice itself was superstitious or sexist, nor was the court upholding the ban for such reasons.35 therefore not only is robertson’s failure to engage with any theoretical description of a right a flaw in and of itself, it also seriously hampers his ability to explain, analyse and justify a key case that he quotes with approval. this theoretical failure is not an academic nicety, but actually sets a dangerous practical precedent, because, if robertson’s rationale for the decision were to be followed, the state would possess a content based power to deny freedom of religion, the very power the concept of a human right was meant to deny. hiroshima and nagasaki whilst addressing international humanitarian law in the chapter “war law”, robertson has the following to say with regard to the use of the nuclear bomb at hiroshima and nagasaki: “the nuclear bomb has been unlawful ever since its drop in 1945 proved massively, indiscriminately and environmentally damaging. that first use on hiroshima was certainly justifiable on the grounds of military necessity, since nothing less than a demonstration of its annihilatory power would move emperor hirohito to even contemplate surrender. it incinerated thousands, but it saved the lives of hundreds of thousands of allied forces, as well as japanese soldiers and civilians who would otherwise have been killed. the second bomb on nagasaki three days later may not strictly have been necessary and should have been dropped elsewhere than on a city, but it does seem to have been the crunch for japanese capitulation, which came five days afterwards.”36 i do not propose to challenge robertson’s conclusion, but, in light of its importance, to criticise this extract for unnacceptable superficiality. as a preliminary matter, it is not entirely clear what robertson is arguing here. the extract begins with the claim that the use of the nuclear bomb has been 35 it is worth noting at this point that robertson’s comment about sexism also betrays another misleading and simplistic feature of his approach to the sahin decision. as dominic mcgoldrick has pointed out, the link between sexism and the wearing of the islamic veil is far from necessary: the motives for wearing a headscarf are multifaceted, not all of them emblematic of the subordination of women: see the first chapter of human rights and religion: the islamic headscarf debate in europe (oxford: hart publishing, 2006). 36 p 219. the denning law journal 163 unlawful since 1945,37 but this is followed immediately by the further claim that its use in 1945 was justified, or at least justified where hiroshima is concerned, with a question mark over nagasaki. at first blush, it seems as if robertson might be arguing, in a positivist vein, that the use of the bomb became unlawful after this initial use, but this argument is not made explicitly. furthermore, cah is hardly a work that is positivist in nature: indeed robertson’s respect for human rights and humanitarian thinking more generally as a secular moral benchmark for international law emerges clearly throughout the work, so i do not believe that this is the point he is making. rather, it is more likely that robertson believes the use of the bomb on hiroshima and nagasaki was prima facie unlawful, but that, perhaps exceptionally, it was not all-things-considered unlawful because it saved lives.38 this is an important claim that requires lengthy explanation, not least an in-depth analysis of how these two events relate to international humanitarian law and the concepts of crimes against humanity and war crimes, notions of central importance to the “war law” chapter and cah as a whole. unfortunately, that analysis is missing. thus, where crimes against humanity are concerned, the definitions given by article 6(c) of the charter of the military tribunal for the trial of the major war criminals and article 7 of the rome statute of the international court arguably cover what occurred at hiroshima and nagasaki, at least to my amateur eyes.39 furthermore, later in the book, robertson quotes with approval the following statement from the tadić judgment as reflecting the rationale for crimes against humanity they: “so shock the conscience of mankind and warrant intervention by the international community…because they are not isolated, random acts of individuals but rather result from a deliberate attempt to target a civilian population.”40 once more, one is struck by the potential for this rationale to cover what occurred at hiroshima and nagasaki. yet, despite the fact that there are several uses of the term “crimes against humanity” in the “war law” 37 itself a questionable assertion: see n 47 below and text. 38 furthermore, robertson offers no evidence for, or analysis of, his claim that dropping the bombs was the only way to persuade emperor hirohito to surrender, and that (if i have understood robertson correctly) this was the main, if not only, motivation for the americans doing so. it is worth noting that there are dissenting voices on this point: see, for example, b v a röling and antonio cassese the tokyo trial and beyond: reflections of a peacemonger (cambridge: polity press, 1994). 39 robertson himself says that article 7 is the authoritative definition of crimes against humanity: see p 430. 40 p 400 (para 653 of the tadić judgment, 7 may 1997). crimes against humanity: the struggle for global justice 164 chapter,41 robertson does not mention the concept when making the claim that the use of the bomb was justified. one must therefore assume, in light of this silence, that robertson believes that the use of the bomb on these two occasions escapes the definition. further support for this assumption is derived from robertson’s claim that the use was justified, since the notion of a crime against humanity would appear to belong to that group of wrongs so heinous as to be incapable of justification.42 however, since cah lacks a sustained conceptual analysis from either a moral and/or legal point of view of what robertson believes is a crime against humanity,43 there is no way of understanding why robertson thinks these bombings escape the definition. yet the claim is too important to be ignored. if the bombings were not unlawful qua crimes against humanity, attention turns to the notion of a war crime, that is to say certain serious violations of international humanitarian law. the deliberate targeting of a civilian objective with a nuclear weapon would seem to be illegal per se under such law,44 and other discussion by robertson in the war law chapter demonstrates that he thinks so as well. thus he argues that the use of nuclear weapons against civilians is illegal by quoting the international court of justice ('icj') advisory opinion on the legality of the threat or use of nuclear weapons at para 78,45 where it is stated that states must never make civilians the object of attack, and he pours derision (“weasel words”)46 on the icj’s position that it is conceivable that the use of nuclear weaponry could be permissible under international humanitarian law under certain extreme circumstances.47 the latter reveals that robertson believes the use of nuclear weapons should be illegal by definition, that is to say under all circumstances.48 one is therefore 41 pp 199, 200, 201, 206 and 212. 42 robertson himself describes crimes against humanity as “unforgivable”, incapable of amnesty or time limits on prosecution: see xxv of the introduction. 43 this is of itself a remarkable omission in light of the book’s title. 44 see robert cryer, håkan friman, darryl robinson and elizabeth wilmshurst an introduction to international criminal law and procedure (cambridge: cambridge university press, 2007) pp 247-253 and 255-256, and christopher greenwood “the law of war (international humanitarian law)” in malcolm d evans (ed) international law (oxford: oxford university press, 2nd edn, 2006) p 783, at p 800. 45 advisory opinion of 8 july 1996; see p 224. robertson incorrectly references the quote he uses as being from para 95. 46 p 225. 47 advisory opinion on the legality of the threat or use of nuclear weapons, above n 45, paras 95, 96, 97 and 105(2)(e). 48 robertson discusses the advisory opinion, ibid, at pp 224-226. his contempt for the majority opinion, specifically its refusal to declare a specific ban on the use of nuclear weapons, is clear. whether that contempt is warranted is itself questionable: see christopher greenwood “the advisory opinion on nuclear weapons and the contribution of the international court to international humanitarian law” (1997) the denning law journal 165 left with a genuine sense of puzzlement as to why he believes their use on hiroshima, and perhaps nagasaki, where large civilian populations were deliberately targeted, was justified, and thereby lawful, in light of military necessity. it is not enough simply to declare the use justified: in view of the importance of these two events, robertson should have devoted considerable time to explaining the theoretical and jurisprudential reasons for his conclusion. these two events are simply too important to be treated so superficially by robertson. the practical flaws robertson’s project is ultimately a practical one. it is about achieving change in a world were injustice is widespread. his preferred method is that of legally and, on occasion, militarily enforced respect for human rights.49 he is therefore concerned with the concrete application of human rights in complex social, cultural, economic and political contexts. this is the question of detail and governance: what does the notion of a human right mean when you disengage it from its abstract moorings and seek to make it engage with, and change, the real world? the question of governance and implementation raises the related question of whether human rights enforcement via legal and military mechanisms is always the best way to achieve the humanitarian goals and respect for human dignity that robertson rightly holds so dear. i will argue that cah exhibits a failure to address either of these two questions in sufficient detail. implementation of human rights has multiple dimensions. above all else, there is the question of finance. the proposals robertson has in mind, both in terms of manpower and physical infrastructure, are not cheap. however, by the end of cah, i had no sense of the cost of robertson’s proposals, or where the money is to come from. robertson can reply that this is not his concern: he is there to highlight the problem. but this is not just a problem of gathering and spending funds that are already available: this is a question of prioritisation in a world where resources are finite. pragmatic and economic awareness must inform any serious treatment of human rights and the achievement of humanitarian goals. as david kennedy notes: “human rights has elbowed economics aside in our development agencies, which now spend billions once allocated to dams and international review of the red cross 316. a similar approach to robertson's can be found in timothy l h mccormack “a non liquet on nuclear weapons the icj avoids the application of general principles of international humanitarian law” (1997) international review of the red cross 76. 49 see, for example, xxv of the introduction. crimes against humanity: the struggle for global justice 166 roadways on court reform, judicial training and ‘rule of law’ injection.”50 perhaps that is best, but we need to know why economic development, in terms of hospitals, schools, power, transport, medicine etc, should be sacrificed in order to satisfy a human rights agenda. by all means phrase or conceptualise these latter economic needs in terms of rights if you will, but the problem remains as to where to spend the money. cah is free of any discussion of such questions. prioritisation, economic or otherwise, is not only a question of how a human rights agenda is given priority over other forms of humanitarian assistance, but also manifests itself within that agenda itself. this can be illustrated with the death penalty. robertson is against.51 but there is more to this question than opposition to the death penalty. as kennedy points out: “…a well-implemented ban on the death penalty, for example, can easily leave the general conditions of incarceration unremarked.”52 this truth is more or less captured by the following observation by a pegasus scholarship placement student in houston in 2004: “i was shocked by the prison conditions for death-row inmates. unless he has a visitor, a death row inmate will spend 23 hours a day alone in a 10’ by 6’ cell with one 3’’ by 36’’ window. prisoners are allowed a radio (but no tv) and are permitted only a limited number of books. they spend one hour a day alone in a large indoor room or in a fenced area outdoors. they have no contact with any other inmates, other than shouting through walls or occasionally on the way to the visitor’s room. there are no work programmes, education or group recreation opportunities. it seems that the good death-penalty attorneys are so busy representing those at risk of receiving a death sentence or those facing imminent execution, that there is neither the time nor the funding for any litigation about prisoner conditions or prisoner rights.”53 50 “reassessing international humanitarianism: the dark sides” in anne orford (ed) international law and its others (cambridge: cambridge university press, 2006) pp 131-135, p 132. 51 pp 137-156. 52 above n 50, p 134. 53 inner temple education and training handbook 2006/2007, pp 57-58, natalie wortley of new court chambers. the denning law journal 167 now robertson might respond that this is just a failure to enforce prisoner rights across the board, and to a certain extent that is true. but it is also a warning against the failure to contextualise and to understand the effects of prioritising certain problems at the expense of others. every failure can be described as a failure to enforce human rights, but the problem remains: which human rights, and when, and how, and how much energy and money, and where should that money be taken from, and where should it be spent first, and at with what sacrifice to other projects? humanitarians should not ignore these practical questions of implementation. as kennedy points out, the human rights movement must realise that it is also involved in governance, rather than purely being a critic of it.54 in his failure to address these questions, robertson turns a blind eye to vital steps in the process of seeing his humanitarian priorities converted into concrete results. it is arguable that such practical concerns do not matter to robertson's central message, because cah is principally concerned with barbaric acts against groups or individuals committed in the name of greed and/or ideology and/or madness that blight human history, in the form of genocide and state sponsored political violence and torture, in times of war or peace. given the extremes of barbarity of such acts, robertson can, and does, advocate their prevention and punishment without engaging in overly complex practical and economic debate. i recognise the force of this argument, but feel that cah would have been greatly improved if robertson had fleshed it out. and it is worth noting that cah has a broader canvas than such extreme crimes, encompassing freedom of speech,55 the rights of women and children,56 and also labour, trade and other economic or second generation rights.57 these rights are more practically complex: their status and effect is more firmly embedded in the day-to-day management of society and the economy. and this is especially so where second generation rights are concerned. for example, questions of global trade and labour relations require a special kind of expertise, relating to such matters as economics, tax, and the logistics of international trade. rights in this context, even if one could agree on their abstract articulation, for example that everyone has a right to gainful employment, require careful implementation in concrete situations. indeed, the abstract support for the right feels like only the first, small step in a 54 this is a common theme in the writings of david kennedy; see, in particular, the dark sides of virtue: reassessing international humanitarianism (princeton and oxford: princeton university press, 2005). 55 pp 116-121. 56 for women, see, for example, pp 106-107, 520 and 613, for children, see, for example, pp 103-104 and 186. 57 see pp 132-136 (“peaceful enjoyment of property”), pp 174-183 (“economic and social rights”), pp 183-186 (“labour rights as human rights”) and pp 186-191 (“the duties of multinational corporations”). crimes against humanity: the struggle for global justice 168 process where implementation and governance are far more important than raw commitment to an abstract idea of what the appropriate rights are in such situations. cah would have been enriched if such questions of implementation had been acknowledged in greater depth. but even the punishment of extreme cruelty is not an open and shut matter. there are still pragmatic and other moral factors that need to be weighed up, such as the argument that the pursuit of a dictator might destabilise a nascent democracy and similar arguments. as henry j steiner argues: “one central concern informs the question of prosecutions. the task after violence has ended may be primarily to rebuild, to lay the foundations for a society more respectful of basic human rights values that extend from control of violence to institutionalisation of political participation, and to achieve some degree of reconciliation that will permit the society to move forward. in such circumstances, prosecutions may hold risks as well as promise, and may even be seen as one among several plausible responses to mass and brutal violations. these choices include truth commissions, lustration, selective or general amnesties that may rest on a popular vote and may involve some quid pro quo on the part of those gaining amnesty, or some combination thereof.”58 robertson has little or no time for such arguments,59 but i feel his dismissal of such concerns is too shallowly considered.60 decisions need to be carefully contextualised: a refusal to acknowledge the side-effects of pursuing 58 “international protection of human rights” in malcolm d evans (ed) international law above n 44 p 753, at p 766. 59 where amnesties are concerned see pp 296-312 (in particular p 311), where truth commissions are concerned see pp 312-323 (in particular p 312, where robertson states that truth commissions should only be a prelude to trial, not an alternative). see also xi of the preface, were he describes fears of destabilisation as “risible” in light of the experience of yugoslavia and chile post the arrests of milosevic and pinochet. see also neil boister “failing to get to the heart of the matter in sierra leone?: the truth commission is denied unrestricted access to chief hinga norman” (2004) 2 journal of international criminal justice 1100, in which boister comments on how robertson, in his capacity as president of the special court of sierra leone, refused the truth and reconciliation commission of sierra leone access to chief hinga norman. 60 i pass no comment on whether such prosecutions are indeed required by international law. the denning law journal 169 a punitive agenda seems dogmatic and insensitive to the local conditions under which such decisions must be taken and executed.61 the question of context betrays another problem with cah. robertson seems little concerned with the cultural, historical, economic and political context of the crimes he describes. one can surmise that, as far as robertson is concerned, that context is irrelevant when considering the evil that has been perpetrated.62 and in one sense this is right: nothing can justify or excuse the acts described. but justification and excuse, on the one hand, and explanation, on the other, are different things, and sometimes understanding the often highly complex cultural, historical, economic and political context of these terrible events can reveal other ways to prevent them, or deal with their aftermath. taking these evil acts entirely out of context and applying a criminal justice solution, whilst perhaps appropriate as part of a more general picture, is nevertheless too limited an approach on its own. robertson’s support for immediate western legal reform and/or military intervention, a process to be frequently supplemented by prosecutions, as the one and only solution to the humanitarian ills of the world could be seen as arrogant, and on occasion even a distraction from more pressing concerns. in fact, those with strong faith in criminal justice are always more or less guilty of this myopia, even within the traditional domestic context. i hasten to add that criminal justice always plays a vital role, of general deterrence, and punishment of those who deserve it. but, to illustrate, if you wish to reduce gang related violence in economically deprived urban areas, you cannot talk exclusively in terms of criminal justice: one must also address the causes of such violence and conflict, and this requires a holistic offensive on many different fronts, through education, both at school and through various social groups, and engendering a sense of community and belonging. indeed, a successful campaign of education and investment in social infrastructure and organisation will arguably reduce crime far more that a heavy-handed criminal justice approach, imposed from above and administered by traditional elites and law enforcement. robertson, at least in cah, seems ignorant of these alternative possibilities and methodologies in the 61 see p 321, where robertson states that the more extreme crimes of latin america and africa, in contrast to the less extreme crimes of eastern europe, “must…be settled…eventually, in the criminal courts.” 62 for example, in his description of the tadić case, he outlines (briefly and exceptionally for cah) the history of the enmity between serb, on the one hand, and croat and muslim, on the other, but the role that history might play in how that enmity could have been prevented from manifesting itself in violence, or healed once the violence had taken place, is not mentioned, see p 394. crimes against humanity: the struggle for global justice 170 international sphere. he conveys, as kennedy would say, an enchanted view of his humanitarian tools.63 these other solutions and prophylactic measures, such as education and dialogue, are embedded in the local culture and history of the participants and acknowledge the stage they have reached in their political and institutional development. by acknowledging cultural context, such measures can achieve results that the immediate application of liberal, rule of law, solutions cannot, and furthermore pave the way for, and complement, the eventual adoption of such solutions.64 on occasion, such an approach may entail respecting existing legal and dispute resolution customs that seem antiquated or superstitious to western eyes, at least in the short to medium term, in order to avoid damaging effects on social cohesion.65 and such alternative approaches are particularly potent where social and economic humanitarian projects are concerned.66 the result of this is that excessive focus on a human rights approach has potentially harmful effects, as kennedy points out: “to the extent emancipatory projects must be expressed in the vocabulary of 'rights' to be heard, good policies that are not framed that way go unattended. this also distorts the way that projects are framed and imagined for international consideration. for example, it is often asserted that the international human rights movement makes 63 the dark sides of virtue, above n 54, p 119. see also p 130, where this point is made effectively: “the effort to intervene in places like kosovo or east timor or palestine to ‘keep the peace’ or ‘rebuild the society’ or ‘strengthen the state’ or ‘provide humanitarian assistance’ without affecting the background distribution of power and wealth betrays this bizarre belief in the possibility of an international governance which does not govern (original emphasis).” 64 as henry j steiner convincingly argues in “international protection of human rights”, above n 58, at pp 775-779. 65 in this regard, see thomas a kelley iii “exporting western law to the developing world: the troubling case of niger” (2007) 7(3) global jurist article 8. kelley outlines the societal dangers of immediately displacing nigerian legal traditions, specifically the use of an oracle called the ‘gon’ as a means of identifying thieves, with western legal reform, and instead advocates a gradual transition towards western legal values for niger. kelley’s article raises a question mark over robertson’s point, at p 38, that there is nothing hostile in the universal declaration of human rights to, inter alia, african countries or the culture and aspirations of ethnic groups or tribes. 66 as steiner points out with regard to gender discrimination and female genital mutilation/circumcision (‘fgm’) in “international protection of human rights”, above n 58, at p 778. steiner states that where customary practices such as fgm are concerned, “internal dialogue within the community between proponents and opponents of the practice may open a path to change more likely to succeed than a state’s effort to prosecute those authorising or performing the ritual surgery.” the denning law journal 171 an end run around the local institutions and strategies that would often be better – ethically, politically, philosophically, aesthetically. resources and legitimacy are drawn to the centre from the periphery. a 'universal' idea of what counts as a problem and a solution snuffs out all sorts of promising local political and social initiatives to contest local conditions in other terms.”67 the problem may be that robertson is concerned with moral wrongs of various kinds but does not see beyond the notion of law and rights as a means of understanding their significance, preventing their occurrence and dealing with their aftermath. yet the humanitarian project is far wider and more complex than a purely legal and rights based approach can deal with. robertson, at least in cah, seems blind to these other possibilities, a more holistic way of looking at the problems that rightly trouble him so much. conclusion in conclusion, i admire cah: it is a powerful defence of the value of international respect for human rights and the determined pursuit of those persons and organisations who have committed crimes against humanity. but the humanitarian project is complex, especially where matters of implementation are concerned, and is not always advanced by solipsistic vision. my comments on cah are therefore meant to trigger further thought on the path to a legitimate end. 67 “the international human rights movement: part of the problem?” (2002) 15 harvard human rights journal 101, at 108. see also the dark sides of virtue, above n 54, p 129. unincorporated associations: property holding, charitable purposes and dissolution 225 denning law journal 2013 vol 25 pp 225 239 case commentary lessons from germany: should uk legislation circumnavigate or circumvent the issue of male circumcision? judgment of the landgericht cologne may 7 th 2012, 1 and its aftermath karen dyer* abstract a recent court decision in cologne germany concerning circumcision has resulted in a rapid response from the german government. the german parliament has passed new legislation confirming the lawfulness of ritual circumcision. however there are questions as to whether the german parliament has done enough. this note looks at the background to the case in question and considers its ethical implications whilst also considering the analogous position in the uk. the author makes recommendations to change the current english law in this area. 1. introduction for a number of years activists worldwide have campaigned to put an end to female genital mutilation (fgm), with a modicum of success. the female genital mutilation act (fgm) 2003 attempted to end such practice in england, wales and northern ireland. 2 further, section 3 of this act makes it * karen dyer, ba (qts), pgdip (central school of speech and drama), alcm, cpe/diploma in law, llm, senior lecturer in law, university of buckingham. 1 docket no 151 ns 169/11. the case can be read in german at www.justiz.nrw.de/nrwe/lgs/koeln/lg_koeln/j2012/151_ns_169_11_urteil_20120507 .html. an english translation, by mr alexander aumüller can be read on durham university‟s website: https://www.dur.ac.uk/ilm/news/?itemno=14984. 2 by virtue of the female genital mutilation act 2003, s 1(1), such procedures that might be described as fgm are illegal unless they meet the justifying criteria of s 1(2). case commentary 226 illegal to take a british national or permanent resident abroad for fgm, 3 with a penalty of up to 14 years in prison for those found guilty of the offence. 4 despite this, it has been reported that as many as 100,000 women and girls from the uk have been victims of fgm, with british-based doctors willing to carry out such procedures on girls as young as 10. 5 these figures indicate just how ingrained fgm is into specific cultures. 6 supporters of fgm argue that the practice is „good tradition‟ or even a religious requirement. in reality, these are nothing but excuses for procedures which involve nothing less than “maiming [...] often without anaesthetic.” 7 unsurprisingly, fgm is now recognised globally as violating the human rights of girls and women. 8 by contrast, the issue of male circumcision, also a potentially dangerous procedure, has received comparatively little attention. this paper attempts, to a modest degree, to redress this. 2. male circumcision the facts derived from the latin word „circumcido‟ meaning „cutting around,‟ male circumcision involves the removal of the foreskin (prepuce), which covers the glans (head) of the penis. circumcisions can take place at any point in life. in a review carried out by the world health organisation (who) in 2009, it was noted that the safest time for this procedure to take place is within the first two months of birth. 9 there are several different techniques utilised. 3 female genital mutilation act s 3(1): a person is guilty of an offence if he aids, abets, counsels or procures a person who is not a united kingdom national or permanent united kingdom resident to do a relevant act of female genital mutilation outside the united kingdom. 4 female genital mutilation act 2003, s 5. 5 andrew hough, „pair held by police investigating female genital mutilation in the uk‟, the telegraph (london, 4 th may 2012). 6 scotland has its own legislation on such issues, the prohibition of female genital mutilation (scotland) act 2005. 7 susan edwards, 'female genital mutilationviolence against girls and women as a particular social group fornah v secretary of state for the home department, house of lords [2006] ukhl 46, [2006] 3 fcr 381, [2007] 1 all er 671 2007‟ [2007] denning law journal 271, 271. 8 a number of potential victims of fgm have successfully sought asylum in the uk and in other countries in the european union. see fornah v secretary of state for the home department [2006] ukhl 46. in this case it was decided that women from sierra leone were a particular social group for the purposes of article 1 a (2) of the echr. see commentary from susan edwards, ibid. 9 world health organisation, manual for early male circumcision under local anaesthesia (1st, who press, geneva switzerland 2010) 5. the denning law journal 227 in a typical „medical‟ procedure, the first step is to administer anaesthesia. in young children a local anaesthetic is administered to the base of the penis, although for older children and adults general anaesthetic can be used. when the anaesthetic has taken effect, the foreskin is clamped open by artery forceps. in infants and some older children, the foreskin is often fused to the glans of the penis. in order to separate the glans from the foreskin, a probe will be pushed gently down inside the foreskin to the base of the glans. the foreskin is then cut vertically one side, to reach the base of the glans, where after it is cut in circle just under the glans. this „dorsal slit method‟ requires significant surgical skill, as one slip can lead to damage to either the urethral meatus, or to the whole of the glans itself. in the us and africa, some doctors prefer to use a plastibell, a piece of disposal equipment which caps the glans. 10 after the plastibell, has been put on top of the glans, the foreskin is stretched back over the plastibell, and the doctor cuts around the cap thereby ensuring that the penis itself does not get cut in the process. the potential downside with this technique is that if the device is too tight, or remains in place for too long, it can lead to glandular necrosis. 11 although it is obvious that the extent of these procedures are (usually) significantly less evasive than in fgm, none-the-less the process can lead to the same drastic results including severe loss of sexual sensitivity, castration or even death. such deaths can and do occur, not just in countries renowned for poor hygiene as one might expect, they also occur in western europe, the us and the uk. although prosecution is unusual, a recent american study indicates that something in the region of 117 neonatal circumcision-related deaths occur annually in the united statesapproximately 1.3% of all neonatal deaths per annum. 12 with the reduction of the number of routine circumcisions being performed, (partly as a response to an increasing awareness of these statistics), recent debates have shifted to consider the use of ritual circumcisions. it is now possible to discern a growing disquiet amongst many who want to see ritual circumcision outlawed in a similar fashion to that of female circumcision. 13 10 the plastibell device is manufacture by hollister inc in illinois usa, see ibid at 47. 11 ibid at 48. 12 dan bollinger, „lost boys: an estimate of u.s circumcision-related infant deaths‟ thymos: journal of boyhood studies, vol. 4, no. 1, spring 2010, 78-90. 13 eg norm the national organisation for restoring men. www.norm.org. case commentary 228 3. ritual male circumcision, a “token of the covenant” 14 or the “angel of death?” 15 male circumcisions have been carried out for religious reasons for centuries, and currently remain legal in the uk. during the 19 th century circumcisions were recommended as a method of promoting health, and boys of all faiths were routinely circumcised. these days, medical opinion has changed and in the uk routine circumcision is a thing of the past. 16 in the current economic climate, nhs trusts have had to make savings wherever possible, and most trusts have economised by stopping any nonmedically attested procedures. consequently, nhs trusts will now usually only provide circumcision in cases of phimosis, 17 or a similar „medical necessity‟. however, despite the reduction of nhs funding, the numbers undergoing such ritual circumcision appear to be in the region of 30,000 annually. 18 this is unsurprising as in this ever-increasing multi-ethnic country a number of faiths, notably judaism and islam, require circumcision, and some parents desire their son‟s circumcision, within hours of birth, in order for their child to obtain membership of their faith. 19 what is not known to most parents, is that there are no specific legal training requirements to perform circumcisions in the uk, and currently a significant number of operations are carried out annually, without either professional assistance or 14 “and ye shall circumcise the flesh of your foreskin; and it shall be a „token of the covenant‟ betwixt me and you.” genesis 17: 11. the holy bible (oxford university press, oxford ) 1866, (king james authorised bible) 15 “then the angel of the lord went forth, and smote in the camp of the assyrians a hundred and fourscore and five thousand: and when they arose early in the morning, behold, they were all dead corpses.” isaiah 37: 36 ibid. 16 it should be noted that some recent medical studies have considered whether circumcision helps prevent transmission of hiv. as yet results are inconclusive on the matter and therefore have not been investigated further in this paper. 17 this is when the foreskin is very tightly joined at the top of the penis, so that the glans of the penis cannot be seen. phimosis is a common occurrence in boys under the age of three years, as it is only after 24 months that the skin starts to detach from the glans. at this stage the condition is harmless, but if the phimosis, remains at puberty it can lead to the life-threatening condition of balanitis. 18 gk atkin, c butler, j broadhurst et al, 'ritual circumcision: no longer a problem for health services in the british isles' [2009] ann r coll surg engl 91(8) 693-6. 19 their assertions are often based on a genesis chapter 17 verse 14, “and the uncircumcised man child whose flesh of his foreskin is not circumcised, that soul shall be cut off from his people; he hath broken my covenant” genesis 17:14 the holy bible (oxford university press, oxford) 1866, (king james authorised bible). it is important to note that there is no corresponding verse in genesis for female circumcision. the denning law journal 229 legal protection. the absence of nhs funding has led parents to risk their sons‟ lives at the hands of non-qualified practitioners. this lack of training has increased the feeling of anger towards such enforced operations on children. despite this, currently in the uk, only currently relatively low-key protests to male circumcision are taking place. however, in certain countries, for example australia, where it is possible to witness the “increasing anger aroused by circumcision of young males,” 20 there are constant challenges to the lawfulness of the procedure. elsewhere, campaigners have presented draft bills in an attempt to regulate such activity, 21 whilst in other countries, courts have initiated parliamentary action by taking on the role of lawmaker in this respect. one such court, landgericht cologne, (the cologne court of appeal), recorded for the first time in germany in may 2012, that circumcision "for the purpose of religious upbringing constitutes a violation of physical integrity." 22 4. the background to the case the defendant, dr k, performed a circumcision on a 4 year old boy „j‟ on 4 th november 2010, in his medical practice in cologne. the procedure was carried out at the request of the boy‟s parents in order to symbolise their adherence to the islamic faith, rather than for medical necessity. the defendant used a scalpel to perform the procedure, which was conducted under local anaesthetic. after the foreskin had been removed, dr k sutured the wound with four stitches. to ensure that his patient was well, dr k visited the patient and family at home that evening. two days later, on the 6 th of november, the mother brought „j‟ into the accident & emergency section of the university hospital cologne, as he had started to bleed profusely from the wound. „j‟ was treated successfully at the hospital, but because of “communication problems with the mother,” 23 medics were not convinced that adequate consent had been obtained for the circumcision. as a result the prosecution service was informed of the operation and an investigation was undertaken. 20 vickers l & board j „circumcision the unkindest cut of all?‟ nlj nov 17 2000. for a full account of this anger see g boyle et all „circumcision of healthy boys: criminal assault?‟ 7 journal of law and medicine (australia) 301-310. 21 see for example the mgm bill from san francisco which was presented to congress in january 2013. www.mgmbill.org accessed 12 th july 2013. 22 judgment of the landgericht cologne 7 th may 2012-docket no 151 ns 169/11 as reported by stephen evans, „german circumcision ban: is it a parent‟s right to choose?‟ bbc newsonline 13 july 2012. accessed 12 th july 2013. 23 ibid. case commentary 230 although a report compiled by an expert witness, dr l, verified that there was no aspect of medical negligence, the same report also concluded that in general, circumcisions are not necessary to promote health care. consequently, the cologne prosecution service charged the defendant with „causing bodily harm to another using a dangerous instrument,‟ by virtue of section 224(1) of the german criminal code, the strafgesetzbuch (stgb) and, in the alternative, with the lesser charge under section 223(1) stgb „causing bodily harm‟. 24 5. the decision of the amtsgericht cologne the case was initially heard by the court of first instance, the amtsgericht cologne, which pronounced its judgment on september 21 st 2011. 25 although the court did not find that the objective criteria were met with regard to the more severe charge under section 224(1) stgb, 26 the court concluded that techniques used during circumcision met that the criteria for the actus reus of battery as stipulated under section 223(1) stgb. however, the court further pronounced that the parental consent, which had been given in accordance with kinderswohl, (the „well-being of the child‟), which in german law is specified under section 1627 of the burgerliches gesetzbuch (bgb) the german civilian code, was valid and justified the defendant‟s actions. 27 in reaching its decision, the court considered the relationship between the right to religious freedom and the bodily integrity of the child. the court found that circumcision was an important aspect of the muslim faith, and without the procedure „j‟ would have been more isolated from his community. interestingly, contrary to dr l‟s expert opinion, the court also found that circumcision had important beneficial effects on the future health of the child. 28 the amtsgericht cologne duly acquitted the defendant. the cologne prosecution service appealed against this decision. this appeal went to the landgericht cologne. 24 section 223 causing bodily harm (1) whoever physically assaults or damages the health of another person, shall be liable to imprisonment of not more than five years or a fine. 25 no 528 ds 30/11; 34js 468/10. 26 the court decided that a scalpel used with special skill as employed in this situation, was not a „dangerous instrument‟ for the purposes of the section. 27 no 528 ds 30/11; 34js 468/10, paragraph 5. 28 no 528 ds 30/11; 34js 468/10, paragraph 8. the denning law journal 231 6. the decision on appeal the decision issued by the landgericht cologne caused an overnight sensation, not just in germany but internationally. 29 rather than considering the events from the „token of covenant‟ viewpoint, the court reconsidered the aspect of circumcision from a medical perspective. in an astonishingly novel judgment, the court ruled that non-medical male circumcision meets the criteria of criminal law battery as specified by section 223(1) stgb, even if performed with the consent of both parents. in reaching its verdict, the court considered the procedure from three separate angles. firstly as an aspect of parental rights to consent to medical procedures on behalf of their child, secondly as an issue of freedom of religious practice, and thirdly, and most significantly, the right of the child to physical integrity. the court decided that taking all of these considerations into account, that dr k‟s actions were unlawful. the operation was unlawful since valid informed consent had not been given to the doctor prior to the circumcision. although the doctor had obtained parental consent, the court found that this was not sufficient to legitimise the operation, which was not a medical emergency. the court found that the only person who could give valid consent was the boy himself, and as he was only four years old at the time, the court deemed that he did not have the intellectual capacity to do so. the court further found that the principle of proportionality needed to be considered in relation to freedom of religious practice, and noted that contrary to the view of many, the act of circumcision inhibits religious freedom, as its permanency prevents a young child from being able to choose his religion, in this case islam, at a later date. by contrast, the court noted that waiting for the child‟s informed consent in such matters, did not infringe the religious freedom of parents themselves. the court concluded that: “the circumcision of a boy unable to consent to the operation is not in accordance with the best interests of the child neither from the perspective of avoiding a possible exclusion from their religious community, nor in the light of the parental rights in education.” 30 29 lg koln judgment monday 7 may 2012 no 151 ns 169/11. www.justiz.nrw.de/nrwe/lgs/koeln/lg_koeln/j2012/151_ns_169_11_urteil_20120507 .html 30 lg koln, at iii, 14 see bijan fateh-moghadam, 'criminalizing male circumcisions? case note: landgericht cogne, judgment of 7 may 2012-no 151 ns 169/11' [2012 vol 13 no 09] german law journal 1131, 1134. case commentary 232 in coming to the decision, the appeal court considered the opinions of dr holm putzke, a professor of criminal law at the university of passau in bavaria. putzke‟s 2008 publication, the criminal relevance of circumcision of boys, was co-written with two munich doctors, maximilian stehr and hans georg dietz. as well as relying on academic articles, the court in cologne, used a decision handed down from the helsinki district court in 2010, to assist in formulating its judgment. in april 2008, a baby had been rushed to hospital in helsinki with extensive bleeding after a circumcision had been carried out by rabbi yossi simon, of golders green london. the rabbi was flown to helsinki specifically to perform the circumcision. the day following the procedure, after having checked the baby was well, the rabbi returned to london. unfortunately the boy bled excessively later that day. 31 the hospital authorities reported the event and in response to protests over a number of years previously by finnish activists the helsinki prosecutors decided to take up the case to ensure that there would be a legal precedent to prevent circumcision in the future, except when performed by a doctor, and not by a lay mohel. 32 in deciding this case, the helsinki district court based its judgment on the convention on human rights and biomedicine of the council of europe, and significantly, on a previous decision by the finnish supreme court of august 2008, which had similar facts. in this case, the finnish supreme court issued basic guidance regarding the lawfulness or otherwise of circumcision for religious identity. the guidance informed that this would not be considered a crime, provided that it was carried out in a „medically sound manner.‟ this has been interpreted as meaning to be carried out by registered doctors, and with the use of anaesthetics. the helsinki district court ruled that every person should understand the nature of circumcision before undergoing it and the parents in question were found guilty of conspiracy to commit bodily harm, and ordered to pay their son compensation of 1500 euros. the judgment did not restrict the practice to medical practitioners, but focussed on the lack of anaesthesia used during the procedure. consequently, the court ruled that ability to carry out such a 31 jessica elgot, „couple fined for son's circumcision by british rabbi‟ [february 25, 2010] the jc.com. http://www.google.co.uk/url?sa=t&rct=j&q=finland%20%26%20circumcision%20% 26%20supreme%20court&source=web&cd=21&cad=rja&ved=0cc8qfjaaobq&u rl=http%3a%2f%2fwww.thejc.com%2fnews%2fworldnews%2f28605%2fcouple-fined-sons-circumcision-britishrabbi&ei=ycgmub2teowio6tagngb&usg=afqjcnejaicn3vyinunhsuydq2sh vhi5og accessed 9 th may 2013. 32 ibid. the denning law journal 233 procedure on neonates and young children was unlawful. this decision was later reversed on appeal, but as with the german decision that followed it, it lead to some hotly contested debates as to whether make circumcision should be made illegal where there is no consent from the „victim.‟ ultimately the landgericht cologne acquitted dr. k, noting that he had made an “unavoidable mistake of law,” 33 which had occurred because there was no clear jurisprudence to follow. in an attempt to redress this situation, the cologne court concluded for the benefit of such future cases, the circumcision of minors for religious reasons alone was unlawful and added that in future doctors who carried out ritual circumcision should be punished. 7. the aftermath the court was accurate in its statement that the doctor did not know the „unlawfulness of his actions,‟ nor was the doctor alone in his ignorance. the extensive news coverage of the case, both in germany and internationally, (enhanced by a significant number of declarations from doctors, religious leaders and high-profile politicians), indicates that the concept that circumcision for religious purposes alone is an unlawful procedure, came as a shock to the majority of the population of germany. this is unsurprising as no such edict had been pronounced either by the german parliament or from any other german court before. the president of the german medical association was extremely concerned that the cologne ruling would lead to an increase in physical harm rather than a decrease, as it is obvious that it is safer for a child to be circumcised in a hospital rather than in a „back-street‟ establishment. professor kristof graf, medical director at the jewish hospital in berlin, which treats muslim as well as jewish boys, was reported as saying after the ruling: "we have had to stop planned surgeries in five cases already where they were scheduled for circumcision and the families were completely destroyed and upset about this." 34 previously the hospital had been performing such procedures for 250 years. the voice of protest, both from those of the jewish faith as well as muslims, likened this judgment to the acts that took place under the nazi regime. in an effort to calm the waters the german government quickly announced that the circumcision of minors for religious, as opposed to medical, reasons would still be lawful and rushed to push through legislation to that effect. consequently, on thursday july 19 th 2012, just before the commencement of the summer break, the german parliament (deutscher bundestag) passed a resolution which aimed to guarantee the right of jewish 33 above n 29. 34 above n 21. case commentary 234 and muslim communities to uphold their traditions in regards to circumcision. 35 during the parliamentary recess, work took place behind the scenes. in august, germany's ethics council unanimously recommended establishing legal minimums for these operations to be performed. it was stipulated that in future, circumcisions would have to take place in professional settings, informed consent would have to be obtained and pain relief would have to be use for such procedures. meanwhile a draft bill was prepared, which was presented to the german parliament in october, by justice minister sabine leutheusser-schnarrenberger. this bill gave parents the right to have their sons circumcised by a trained practitioner, but stipulated that once the boy reached six months of age, then the procedure needed to be performed by a doctor. the draft bill was challenged. another bill was submitted to parliament by left-wing lobbyists who wanted a provision for boys not to be operated on before the age of 14, when they would be able to give valid informed consent for themselves. in mid-november, the bundesrat 36 passed the draft bill. the final vote on the 12 th december 2012 in the deutscher bundestag, saw the bill being passed by 434 to 100 votes (with 46 abstentions). 37 however, as will be discussed later, it is now apparent that this rushed legislation, rather than pouring oil onto troubled waters, has instead left them somewhat muddied. 8. metzitzah b’pehthe „kiss of death‟? of all the rituals connected with circumcision, the jewish ritual metzitzah b’peh, often shortened to mbp, practised by some ultra-orthodox mohels, is undoubtedly the most controversial, as it takes issues regarding a child‟s bodily integrity to new levels of concern. as part of standard judaic practice, boys are circumcised on the eighth day, as demanded by the torah. however in addition to the removal of the foreskin, mbp requires the mohel to suck the blood away from the boy‟s genitals after the circumcision has taken place. this process, which alone may appear unacceptable by standards of today‟s society, also has significant health implications for any young child. it has now been identified that in performing mbp the mohel can infect newborns with herpes simplex virus type 1 (hsv1). this virus, whilst having relatively mild effects in adults, can cause death or brain damage in 35 deutscher bundestag drucksache 17/10332 see above n 30. 36 german upper house of parliament. 37 the right of parents to consent to a non-medical circumcision of a minor has been inserted into the family law section of the civil code, section 1631d. the new law (in german) is available through at: http://dipbt.bundestag.de/dip21/btd/17/112/1711295.pdf. the denning law journal 235 neonates. 38 in september 2011, there was considerable distress in new york when a two-week old baby died as a result of a herpes infection after undergoing a mbp. this outrage continued when it was reported by centers for disease control and prevention, 39 that there were reported cases of neonatal herpes simplex type 1 (hsv-1) infection following mbp in the united states, canada, and israel. in new york, at least 11 infants contracted genital herpes following ritual circumcision between 2000 and 2011. of these 11, two deaths occurred and two more children suffered from brain damage. 40 by 2012, the figures have risen to 13 known cases. 41 conscious of health implications, most mohels use a pipette to remove the blood, but it has been reported, that many ultra-orthodox mohels consider “direct suction of the genital area by mouth to be mandated by the talmud.” 42 in april 2013, several complaints were lodged with the the office of public prosecutors in berlin, regarding this very issue. the complaints apparently relate to the circumcision of the infant son of berlin chabad rabbi yehudah teichtal and his wife, leah. gideon joffe, head of berlin‟s jewish community, issued a statement saying: “we were hoping that the new circumcision law would finally restore legal security and that the recent debates, which were very stressful to the jewish community, were finally over.[…] the jewish community of berlin is a unified community, and members of every denomination should be able to live out their judaism as they learned it from their parents and grandparents.” 43 it is clear that in the rush to pass legislation allowing circumcision, ministers in germany had overlooked the small print in the new act. to all intents and purposes, it appears that metzitzah b‟peh is still legal in germany, as indeed it is in other countries. however, in order to appease the situation the conference of european rabbis confirmed its previous recommendations 38 http://forward.com/articles/174081/are-new-york-hospitals-hiding-herpes-frommetzitza/#ixzz2sixjg2q0 accessed 20 th june 2013. 39 based in atlanta, georgia. www.cdc.gov. 40 http://www.cdc.gov/mmwr/preview/mmwrhtml/mm6122a2.htm?s_cid=mm6122a2_ w accessed 30 th june 2013. 41 above n 38. 42 ibid. 42 circumcision ritual under investigation in berlin april 12, www.jta.org/news/ http://www.jta.org/2013/04/12/news-opinion/world/circumcision-ritual-underinvestigation-in-berlin accessed 10 th july 2013. case commentary 236 that it is “halachically permissible and medically advisable to carry out metzitzah b'peh through a pipette or tube.” 44 9. the uk position by way of comparison, the english legal position regarding male circumcision is unsatisfactory. according to the sensationalist case of r v brown, 45 circumcision is lawful. this furnishes the right to perform a religious procedure. here an ethical conflict arises between article 24.3 of the un convention on the rights of the child and article 9.2 of the european convention on human rights, which protects the rights of individuals to practise their religion. where there are two opposing views from those with parental responsibility, a precedent has now been set in england and wales in re j (child‟s religious upbringing and circumcision) 46 which considered the conflicting parental wishes over the non-therapeutic circumcision of their son. this decision was relatively easy for the court, as the son was against the procedure himself! therefore the mother‟s request to prohibit the operation was approved by the court. due to the specific facts in this case, it has not created a precedent as such, albeit that current bma guidelines reflect this ruling by requiring both parents to agree to circumcision. however, there are concerns as to whether those with „pressing medical needs‟ really do need circumcision, particularly in the light of both global and national reports of unnecessary deaths. 10. circumcision on trial in recent years there have been a number of cases reported to the coroner‟s office in the uk, regarding infant mortality after circumcision, however, it is very rare for there to be any follow-up criminal, or civil, proceedings. it is difficult to identify the rationale behind the lack of prosecutions, but it is likely that a significant stumbling block, is the inability to establish a clear causal link between the circumcision and the later death. this appears to be the leitmotif in the majority of these cases. in order to establish a claim of medical negligence under english civil law, the claimant must prove that a there was a breach of a pre-existing duty of care which caused the damage. should the breach of damage be „so bad‟ 47 that it leads to death, the person responsible may find their actions “beyond a 44 ibid. 45 r v brown [1993] 2 all er 75. this case involved homosexual sadomasochistic behaviour. 46 re j (child’s religious upbringing and circumcision) [2000] 1 fcr 307. 47 r v adomako [1994] 3 wlr 288. the denning law journal 237 matter of mere compensation” 48 and consequently facing a criminal charge of gross negligence manslaughter. no operation is risk-free and, on occasions, the circumcision procedure will go drastically wrong. however, as with a number of deaths that occur after medical treatment, the fatalities often appear to be the result of a string of incidentsbeyond the control of the person who initially performed the procedure. for example, in 2007, a seven-day-old boy died hours after his circumcision in london. it was specified that there was no causal connection established between the circumcision and the boy‟s death. 49 just one month later, nine week old celian noumbiwe from slough, bled to death after his circumcision. 50 giving a narrative verdict, 51 the coroner criticised a number factors in this case, including insufficient postoperative care advice the parents were only given a leaflet. further, neither of the parents met the doctors before or after the procedure and when the parents suspected that something had gone wrong, the emergency number given to them had been cut off so they were unable to seek advice. however, despite these unsatisfactory clinical arrangements, no charges were brought against the doctors. in february 2012, angelo ofori-mintah, a one month old boy, bled to death after a circumcision carried out by a rabbi in queen‟s park london. it was reported that the cause of death was “bleeding, exsanguination and heart failure”; the child having lost three-quarters of his total blood volume. 52 on reporting a verdict of accidental death, the deputy coroner shirley radcliffe noted that this was a “tragic break-down in communication” between mother and rabbi, which left him unaware of the true level of the problem and therefore unable to act. 53 once again, no prosecution followed. one rare instance of a successful prosecution occurred in 2012. in april, midwife grace adeleye was charged with the manslaughter by gross negligence, of goodluck caubergs after adeleye circumcised the boy in 2010. 54 adeleye was paid £100 for performing the operation without anaesthetic, using only a pair of scissors, forceps and olive oil for the 48 r v bateman (1925) 19 cr app r 8. 49 martin beckford, „police investigate baby's death after circumcision‟ the daily telegraph (london, 16 february 2007). 50 lucy bannerman, „baby bled to death after circumcision, inquest told‟ the times (london, 13 february 2009). 51 this sets out the facts surrounding the death in a narrative form without necessarily indicating any responsibility. 52 circumcision deaths, www.cirp.org/library/death/accessed 8 th may 2013. 53 „queen‟s park baby bled to death two days after being circumcised‟ brent & kilburn times, (22 june 2012). 54 „midwife on baby death charge‟ www.oldham-chronicle.co.uk › news › news headlines 16 th april 2012. http://www.google.co.uk/url?url=http://www.oldham-chronicle.co.uk/news-features/&rct=j&sa=x&ei=cubnt8pycsak8gp06ftscg&ved=0cfcq6quoadaa&q=grace+adeleye+(66)+was+charged+on+friday+with+the+manslaughter+of+goodluck+caubergs+by+gross+negligence.+%e2%80%a8the+court+heard+the+incident+happened+in+oldham+on+april+17+2010.&usg=afqjcnf8zqepr_kr9cejrh5zrmscwdmrea http://www.google.co.uk/url?url=http://www.oldham-chronicle.co.uk/news-features/8/news&rct=j&sa=x&ei=cubnt8pycsak8gp06ftscg&ved=0cfgq6quoataa&q=grace+adeleye+(66)+was+charged+on+friday+with+the+manslaughter+of+goodluck+caubergs+by+gross+negligence.+%e2%80%a8the+court+heard+the+incident+happened+in+oldham+on+april+17+2010.&usg=afqjcnhub5kxmrjn_hscb2wrslxij_nkfa http://www.google.co.uk/url?url=http://www.oldham-chronicle.co.uk/news-features/8/news&rct=j&sa=x&ei=cubnt8pycsak8gp06ftscg&ved=0cfgq6quoataa&q=grace+adeleye+(66)+was+charged+on+friday+with+the+manslaughter+of+goodluck+caubergs+by+gross+negligence.+%e2%80%a8the+court+heard+the+incident+happened+in+oldham+on+april+17+2010.&usg=afqjcnhub5kxmrjn_hscb2wrslxij_nkfa case commentary 238 procedure. 55 caubergs died hours after the procedure had been carried out. in 2012, adeleye was found guilty of gross negligence manslaughter, by a majority verdict of ten to two, from the jury who had deliberated for eight hours. 56 she was given a 21 month suspended sentence. 57 11. discussion it is important to consider the recent legal activity regarding male circumcision in germany and consider whether it is time to reassess corresponding legal provisions in the uk. there are several lessons that can be learned from the german experience. it is clearly unsatisfactory for courts to pass judgments that appear to amount to the creation of a new criminal offence. although english courts have in the past made decisions which have seemingly authorised a retrospective development in criminal law, 58 it is clear that to do so runs the risk of creating legal uncertainty, potentially instigating a series of appeals to higher courts. moreover, such decisions, passed by a small number of judges but affecting a significant number of people, have the potential to create social and legal chaos generally, and political unrest, (as was witnessed in germany). supposing that english parliament finds itself in a parallel situation to its german counterpart, how should it react? it is demonstrably clear that parliament should not rush into passing legislation on such a matter. with regard to circumcision, an ethical concern is the lack of informed consent. clearly an infant is unable to consent for himself so the parents will act as his proxy. this, opponents of circumcision argue, is unfair and that the right to select a non-reversible procedure should not be left to parents, but to the child when he is mature enough to understand all the implications of the procedure. as children mature at different ages, should english law require a minimum age for lawful circumcision? this, it is submitted, would be the only way to reduce tensions should society deem that a child‟s consent must be obtained. perhaps the aspect of safety is of more concern. is it ever ethically acceptable to perform any unnecessary operation on a child, or indeed an adult? if the answer to this is in the affirmative, the next question must be 55 ibid. 56 http://www.mirror.co.uk/news/uk-news/circumcision-death-nurse-guilty-ofmanslaughter-1490796#ixzz2siru23c5. 57 http://www.dailymail.co.uk/news/article-2276006/nurse-grace-adeleye-causedbaby-boy-bleed-death-botched-home-circumcision-walks-freecourt.html#ixzz2sipom6zx . 58 see for example the marital rape case r v r [1991] 3 wlr 767. the denning law journal 239 asked, is it ever ethically acceptable to perform any unnecessary operation on a child when the potential injury is severe? i would argue that it is not. however activists in favour of circumcision for religious reasons would argue that to outlaw ritual circumcision completely is an equally unsatisfactory suggestion, and does appear to be disproportionate to article 9 of the european convention of human rights. 59 even if parliament passed an act banning all ritual circumcision, it is extremely likely the procedure would not stop, but take place in less sterile environments, ultimately leading to further fatalities. 12. recommendations by reducing nhs funding vulnerable children are at risk of injury and death when their parents seek back-street circumcision. therefore, as a minimum requirement, it is recommended that legislation be passed requiring any would-be practitioner to undergo training and testing, to acquire a license to perform circumcision. 60 further, it is submitted that all procedures must be performed in an pre-inspected and registered building which is within easy reach of emergency medical care. finally the ritual of metzitzah b’peh needs to be considered carefully. it is submitted, as an absolute minimum legal requirement, that no unprotected oral contact is applied directly to the child in question these modest recommendations to reform english law, by drawing on the experiences surrounding the new german law which attempts to balance patient safety with religious observance, would assist in promoting intrafamily human rights, without jeopardizing the life of its most vulnerable member. 59 article 9 – freedom of thought, conscience and religion 1. everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, and to manifest his religion or belief, in worship, teaching, practice and observance. 2. freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. 60 incorporating all the good practice specified by the royal college of surgeons. the royal college of surgeons england, „male circumcision guidance for healthcare practioners‟(2000) www.rcseng.ac.uk/publications/docs/male_circumcision.html/@@download/pdffile/ circumcision.pdf. the denning law journal 85 denning law journal 2007 vol 19 pp 85-121 protecting databases – a call for regulation catherine colston∗ abstract legislators for intellectual property rights have traditionally balanced protection with user access to the protected property. in particular, information has been treated as deserving of wider access by users. departure from these norms erodes the very justification for intellectual property rights. however, the combined effects of the sui generis database right and that for technological protection measures for electronic works introduced by the database and information society directives led to fears of monopoly powers over raw data and information and erosion of the traditional balances. the implementation and application of these measures in the uk and elsewhere appeared to confirm these fears. given the opportunity to reverse these effects, both the european court of justice and the european commission have failed to redress the balance. consequently, urgent attention should be paid to control over regulation of database licensing. keywords database, sui generis right, copyright, information, digital rights management, access. ∗ senior lecturer in it law, university of strathclyde. protecting databases 86 introduction databases are repositories of information, of data. when intellectual property rights are applied to databases, it is vital that the rights given extend only to the database and do not allow monopolisation of the information therein. this is because, without access to ideas, the seedbed for creation and innovation is lacking. knowledge and information do not spring into being in a vacuum. ideas generate further ideas. as ideas do not share the finite properties of other commodities, sharing ideas does not deplete their stock (though it may lower their market value1). furthermore, ideas, or information, can be seen as a significant public and strategic resource in the so-called “information age” or “information economy”. yet digital storage and dissemination of information in the form of data renders information a commodity subject to exclusivity and ownership,2 taking on the finite character of other commodities, so that the “information commons”3 is endangered. globalisation of publication and of intellectual property rights only serves to increase the dangers to free information flows. the introduction of a sui generis database property right in the european union by the database directive,4 and subsequent court decisions caused concerns that the protection extended to a database’s contents and risked monopolising information. these fears were particularly acute in relation to sole-source databases.5 further protection for databases resulted from the 1 lor p and britz, ‘knowledge production, international information flows and intellectual property: an african perspective’, datad workshop on intellectual property, governance, dissemination and funding strategies, accra, ghana, feb 2004: http://www.aau.org/datad/reports/2004workshop/index.htm (last visited january 16th 2007). 2 particularly exclusive privileges resulting from intellectual property rights. 3 the ‘commons’ may comprise either open access public domain information (where no private proprietary rights subsist or are not exercised), and common property information resources of collected material made publicly accessible but governed by the collecting group (such a open source software or the creative commons). the ‘information commons’ movement is analysed in kranich n, ‘the information commons – a public policy report’: http://www.fepproject.org/policyreports/infocommons.contentsexsum.html (last visited january 16th 2007). 4 directive 96/9/ec of the european parliament and if the council of 11 march 1996 on the legal protection of databases, oj l 077. 5 see colston c, ‘sui generis database right: ripe for review?’(2001) 3 jilt http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2001_3/colston/; colston c ‘challenges to information retrieval – a global solution?, [2002] ijlit 294,; david p, ‘a tragedy of the public knowledge “commons”? global science, intellectual property and the digital technology boomerang’, working paper, 04/00, oxford http://www.fepproject.org/policyreports/infocommons.contentsexsum.html http://www.aau.org/datad/reports/2004workshop/index.htm http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2001_3/colston/ the denning law journal 87 information society directive.6 this introduced legal support for technological protection measures applied to copyright works and databases, creating a dual layer of protection for databases supplemented by contractual controls. with the european commission’s preliminary review of the database directive in late 2005, and the rulings of the european court of justice in four cases concerning databases in november 2004, it is thus needful to review commentary on the database right in the light of access to information. such a review must take place within the historical and purposive context of intellectual property law and the balances that have been sought to be achieved between access and protection. it can be argued that the database right has been demonstrated to have achieved very little in terms of economic benefits, despite the perceptions of database manufacturers. yet the fears surrounding access to information have not been met either by the commission or the european court of justice. traditional balances between intellectual property protection and user access have been considerably eroded. while this might point to removal of the database right altogether, the fact that technological protection measures for electronic databases, as well as contractual controls also provide strong inhibitors to open access to information, a better approach is to move the debate from the best approach to protection to the optimum approach to access and to impose controls over database licensing. intellectual property’s aims intellectual property rights [ipr] provide their owners with exclusive or monopolistic power over their intellectual property within certain legislative boundaries. doing so has traditionally been justified both as providing recognition of creators’ natural rights in the application of their intellect, and as an economic instrument7 designed to stimulate innovation and its intellectual property research centre: http://www.oiprc.ox.ac.uk/ejwp0400.html (last visited january 16th 2007); reichman j and samuelson p, ‘intellectual property rights in data?’ (1997) 50 vanderbilt law review 52. 6 directive 2001/29/ec of the european parliament and of the council of 29 may 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, oj l 167. 7 the economic incentive argument is open to challenge. drawing from the last 50 years of critique of natural monopoly theory (that informational asymmetry disturbs the regulatory process of natural monopolies, that alternative forms of competition can address this and include broader considerations in constructing the market, and that socio-political concerns require consideration of political and consumerist issues), shubha ghosh argues that similar criticisms can be made of the incentive justification for intellectual property rights, which is based on an assumption of high http://www.oiprc.ox.ac.uk/ejwp0400.html protecting databases 88 dissemination.8 where copyright has been applied to collations of information, the property right has been balanced with the social need for access. this is done by means of the right’s duration, the requirement for originality, the limited exclusive rights give, and an extensive set of exceptions allowing for specific uses. however, the increasingly “ephemeral” nature of technology, and the spread of ipr9 threaten to so depart from this approach as to diminish access to information at considerable social cost. thinking of digital dissemination of information, julie cohen states:10 the intellectual property regime that is emerging on the internet will do three things: it will allow proprietary control over access to information. it will leverage that control to achieve an astonishingly broad range of restrictions on information use – not only by copyists and other free riders, but also by citizens, consumers, critics, and legitimate competitors. and, as a result it will reshape the ways in which online interaction is structured. she goes on to state that important normative and policy questions arise relating to the value of information access and exchange, and that the questions should be addressed to ipr as a system. consequently, it is necessary to achieve two results – to generate information and construct its platforms requires investment, and ipr can protect against the market failure that imitation would otherwise cause.11 but fixed costs and low costs of copying which cannot always be justified. nor do exclusive rights determine the rate required to achieve the desired incentive effect. potential competition may cater for the risk of destructive competition, while the interests of use and distribution require consideration and limits on strong rights. he argues that the us approach to database protection is consistent with this criticism. ‘the intellectual property incentive: not so natural as to warrant strong exclusivity’, script-ed, vol 3, issue 2, 2006. http://www.law.ed.ac.uk/ahrb/scripted/vol3-2/ghosh.asp 8 see colston c and middleton k, modern intellectual property law, (london, cavendish publishing, 2005). 9 for example, patenting increasingly extended to software implemented inventions, and even business methods, the new database right created by the european database directive. cohen j summarises: ‘[t]raditional intellectual property rights, which were limited monopolies operating in distinct and different subject areas, have been retrofitted to become sophisticated, mutually reinforcing methods of controlling information use’: ‘intellectual property and the information economy’, in cyber policy and economics in an internet age, (boston ma, kluwer, 2002). 10 cohen j, ‘intellectual property and the information economy,’ in cyber policy and economics in an internet age, (boston ma, kluwer, 2002). 11 and it has been argued that, lacking an economic incentive for the compilation of useful databases without a database right has limited the development of science and research by limiting the number of experiments conducted in a study and by contributing to a reluctance to share information: hasan a ‘sweating in europe: the http://www.law.ed.ac.uk/ahrb/scripted/vol3-2/ghosh.asp http://www.law.ed.ac.uk/ahrb/scripted/vol3-2/ghosh.asp the denning law journal 89 there must also be access to the information ipr protects in order to continue the generation cycle. it has been noted, for example, that a high proportion of european databases relying on the sui generis database right have been sole source databases,12 rendering sufficient access to their contents a necessity for informational progress. judicial treatment of facts when interpreting ipr, facts, or information, have been given special treatment by the courts for just these reasons. this has taken the form of (i) either refusing copyright protection at all, or (ii) of condoning particular uses or users of information by findings of non-infringement or, (iii) by preferring countervailing rights; perhaps precursors of three of the alternate ways in which both protection for the effort and expense of collation and sufficient access to the content of such compilation may be secured. examples can be drawn from the united states, england and germany. in feist v rural telephone (1991),13 the us supreme court held that the “white pages” of a telephone directory were not protected by copyright, and also cast doubt on the extent of protection for comprehensive unstructured databases. they rejected the concept of “the sweat of the brow” as constituting sufficient originality for protection of a copyright work. canadian authority14 took the same approach to “yellow pages”, although uk and australian15 authority has not followed suit for copyright compilations. it remains to be seen how long this stance can be maintained in the face of the civil standard of originality as the author’s own intellectual creation being applied in the database directive and cdpa 1988, s. 3a(2).16 european database directive,’ (2005) 9 comp l rev & tech j 479, citing greenbaum d ‘are we legislating away our scientific future?’ the database debate, 22, wl, 2003 duke ltr 22. 12 hasan a, ‘sweating in europe: the european database directive’, (2005) 9 comp l rev & tech j 479, citing edwards j, ‘has the dreaded doomsday arrived?: past, present, and future effects of the european union’s database directive on database and information availability in the european union’, (2004) 39 ga l rev 215. these include france’s electronic minitel directory, the deutsche telekom and kpn telecom telephone directories, and the sűddeutsche zeitung newspaper’s real estate directory. 13 feist v rural telephone (1991), http://www.law.cornell.edu/copyright/cases/499_us_340.htm (last visited january 16th 2007. 14 tele-direct publications v american business information (1997) 76 cpr (3d) 296, fc canada. 15 desktop marketing systems v telstra (2002) 119 fcr 491. 16 copyright, designs and patents act 1988. http://www.law.cornell.edu/copyright/cases/499_us_340.htm protecting databases 90 in ravenscroft v herbert (1980)17 taking historical fact from a non-fiction book of history was not found to infringe the book’s copyright. the court took the view that some types of work must expect more use before the point of taking a substantial part and infringing use is reached; and that historical fact was one such area. in the german case of brandenbuch (2001)18 the district court held that the public interest in freely accessible information overrode any substantial investment in its collection. this was held in relation to a collation of information about people living on the isle of rügen taken from the publicly available yellow pages and trade register. claims of unfair competition, breach of confidence and copyright all failed. purposive legislation intellectual property legislation is grounded on a fundamental concept of a public domain. the common resource of ideas and information is limited by private property rights only to the extent deemed necessary in order to stimulate further production of ideas, inventions, works, and designs for the public’s benefit. and these rights fall into the public domain once the incentive for their creation has been realised, so that protection is limited in terms of its duration, as well as its scope. as a seedbed for development, factual information would seem to be a form of intellectual property least deserving of extensive protection. certainly indefinite protection for information, as opposed to its arrangement, collection, or classification is, at the very least, potentially dangerous. to impose an unwarranted cost, let alone the need for repetition of work already done, is inefficient, or worse, in an age when research and development rests on a bedrock of information and knowledge. the statute of anne, 1710,19 the first statute relating to copyright, based copyright in the incentive to simulate authors to create: “…for the encouragement of learned men to compose and write useful books…” 17 [1980] rpc 193. 18 landgericht düsseldorf, 7 february 2001. institute for information law, the database right file: http://www.ivir.nl/files/database/index.html (last visited january 16th 2007). 19 the copyright act, 1709, 8 anne ch 19, came into force april 10th 1710. the act replaced the monopoly granted by the monarch to the stationers company. it vested the right in authors and not publishers, and limited the period of protection to a fixed term. http://www.ivir.nl/files/database/index.html the denning law journal 91 similarly the us constitution20 grounds intellectual property in its incentive effect: “…to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries…” the united nations declaration of human rights [udhr]21 further emphasises the balancing act that intellectual property laws should provide: (1) everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. (2) everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. the directives’ aims it would appear that these fundamental aims were not applied to the two directives. in 1992, at the time that the database directive [dd] was adopted, estimates of the origins of global accessible online databases saw europe having a quarter of the market, while the us share amounted to 56%. the perception thus was of a potential for considerable growth in the european market and the dd must be placed within this context. indeed, in its 2005 report22 the commission stated that the overall objectives of the dd were to (i) ensure an attractive environment for investment in databases, (ii) ensure that the european information markets could develop “properly”, and (iii) improve the global competitiveness of the european database industry. thus the directive was drafted primarily as an economic instrument designed to boost europe’s information trade and compete with that of the us. its aims of harmonising legal protection for databases, safeguarding investment in database creation and ensuring legitimate access must be seen as serving that economic purpose. yet, the directive itself is based on the illogical conclusion 20 the constitution of the united states of america, article 1, clause 8. the convention was adopted by a convention of states on september 17th 1787, and ratification was completed on june 21st 1788. 21 united nations declaration of human rights, article 27. 22 first evaluation of directive 96/9/ec on the legal protection of databases’, dg internal market and services working paper, december 12th 2005. protecting databases 92 that strong protection for original and factual databases was necessary to achieve this aim when the feist23 decision made it clear that no equivalent protection for non-original databases existed in the us. instead, the us industry was able to rely on a number of different models of protection, including shrink-wrap and click-wrap licences, technological protection, value-added services and frequent updating.24 the information society directive25 [isd] enabled the eu and its member states to ratify the two wipo “internet treaties”,26 but can also be seen to be founded with an economic aim of allowing the eu to compete within the competitive, dynamic knowledge-based economy.27 although the directive provided an extensive list of exceptions to copyright protection for digital works, only one was mandatory and member states were able to choose which exceptions to adopt. neither harmonisation of copyright law, nor a well founded balance between access and protection was achieved as a result. moreover, the “grandfather clause”28 whereby member states may retain existing national exceptions was restricted to analogue works. the database right before 2005 the statutory sui generis right, though framed in terms of unfair competition, had the potential to monopolise actual information, and not just 23 feist publications v rural telephone service co, (1991) 499 us 340. 24 david p, a tragedy of the public knowledge “commons”? global science, intellectual property and the digital technology boomerang’, working paper, 04/00, oxford intellectual property research centre: http://www.oiprc.ox.ac.uk/ejwp0400.html (last visited january 16th 2007). 25 directive 2001/29/ec of the european parliament and of the council of 29 may 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, oj l 167. 26 the world copyright treaty, 1996 and the world phonograms and performances treaty, 1996. these wipo treaties adapt protection for authors, performers and sound recording producers to the digital age and the perceived threats to their works rendered by electronic communications. 27 recital 4 of the isd states: “a harmonised legal framework on copyright and related rights, through increased legal certainty and while providing for a high level of protection of intellectual property, will foster substantial investment in creativity and innovation, including network infrastructure, and lead in turn to growth and increased competitiveness of european industry, both in the area of content provision and information technology and more generally across a wide range of industrial and cultural sectors. this will safeguard employment and encourage new job creation.” 28 information society directive, article 4(3)(o). http://www.oiprc.ox.ac.uk/ejwp0400.html the denning law journal 93 its collated form.29 if information so protected could be not obtained elsewhere the result was to provide the database manufacturer with the only key to that information. yet recital 40 indicated that it was investing financial resources and/or the spending of time, effort and energy that was protected. it was damage to this investment, and not merely parasitical competition, that was guarded against. for those needing access to information such a right should have promoted the creation of useful databases. the despotic tendencies of the right arose from the lack of exceptions, the fact that reuse of information extracted in another format was likely to infringe,30 and the right’s potentially eternal existence. substantial changes resulting in a database being regarded as a substantial new investment qualified the renewed database for its own term of protection. this effectively allowed for eternal protection for so-called “dynamic” databases. just as copyright protection is confined to the expression of ideas, the database directive was apparently not intended to create any new rights in underlying data, nor to extend copyright protection to data, as stated in recitals 45 and 46. it appeared that it was intended to preserve the traditional copyright balance of access and protection in regard to information. only to have provided protection for investment in the collation of information should have allowed competitors to recreate that collation and alternative sources to be made available.31 lawful users might extract or re-utilise insubstantial parts of the contents for any purpose, subject to any copyright subsisting in the contents themselves.32 in 2005 the ecj held that “substantial” in qualitative terms 29 article 7 of the database directive provided that database makers might prevent extraction and/or re-utilisation of the whole or a substantial part of their databases, where it could be shown that, qualitatively and/or quantitatively, they had invested substantially in either obtaining, verifying or presenting the contents. it runs for fifteen years from 1 january of the year following the date of completion of making the database, or its first making public within the fifteen year period from that making. 30 per laddie j, british horseracing board v william hill organisation, hc 2000 1335, [2001] rpc 31; and the ecj at para 81 in british horseracing board v william hill organisation (2004). 31 as is illustrated by the result of the feist case in the united states, where the supreme court rejected ‘sweat of the brow’ protection for data. justice sandra day o’connor stated ‘that there can be no valid copyright in facts is universally understood. the most fundamental axiom of copyright law is that “no author may copyright his ideas or the facts he narrates”’. feist publications inc v rural telephone service 499 us 340, 111 s ct 1282, 113 l ed 2d 358 (1991). 32 before 2004 most uses of benefit to a user appeared to be regarded as substantial – so that laddie j took into account william hill’s interest in the information they protecting databases 94 relates to the investment securing protection for a database, and not the value of the information itself. however, it remains the case that where there has been investment of the right sort,33 it is likely that what is valuable to the user was the result of substantial investment. lawful users were also given access to, and use of, information for specific purposes. however, these exceptions might not provide sufficient means of access to information. they relate only to “lawful users”, a phrase neither defined by the directive, nor by the copyright and rights in databases regulations 1997. chalton and rees34 pointed out that careful drafting of licences might restrict a user to limited parts of a database and for limited uses, thus constraining “lawful” use. the ecj appears to support this conclusion in their british horseracing board v william hill ruling: “of course, the maker of a database can reserve exclusive access to his database to himself or reserve access to specific people….it is legitimate for the maker to charge a fee for the reutilisation of the whole or part of his database which reflects, inter alia, the prospect of subsequent consultation and thus guarantees him a sufficient return on his investment.”35 there was no general right of private use for electronic databases, despite the fact that recital 50 does not distinguish between electronic and nonelectronic databases. substantial parts might be extracted for teaching or scientific research, provided that this was non-commercial and the source indicated. scientific research relates both to the natural and human sciences. lawful users might not “perform acts which conflict with normal exploitation of the database or unreasonably prejudice the legitimate interests of the maker extracted when determining the issue of substantiality for infringement. so too did the district court of the hague in nvm v de telegraaf [president district court of the hague, 12 september 2000, [2000] mediaforum 395]. the court added that even extraction by the defendant newspaper’s web-based search agent of small amounts of data from the plaintiffs’ real estate database would qualitatively constitute substantial extraction, since it might be of great value to the end user. the decision was overturned on appeal [court of appeal of the hague, 21 december 2000, [2001] mediaforum 87] but on a different point. 33 in the gathering of pre-existing information, and not its creation: british horseracing board v william hill organisation (2004). 34 chalton s and rees c, database law (bristol, jordans 1998). 35 paras 55 and 57, british horseracing board v william hill organisation (2004). in para 58 the ecj continue: ‘the consent of the maker of the database to consultation does not entail exhaustion of the sui generis right.’ the denning law journal 95 of the database.” the munich district court held in august 2002 that the database right applied to a collection of laws. although laws and statutes were exempt from copyright protection, the database right applied because the exhaustive list of exemptions in article 9 of the directive did not allow such an exclusion. the consequence was that access to information held in databases, particularly information whose sole source was the database, was confined to those already licensed, possibly at a fee, and for a limited set of noncommercial purposes.36 the exception for scientific research and education was termed a “kind of fool’s gold”, which apparently disregarded the fact that the equivalent in the berne convention applies to information already in the public domain, allowing additionally for use of a particular expression of the information, whereas the raw database material may not lie in the public domain. additionally, the exception only applies to extraction and not reutilisation. the end result was apparently the strongest intellectual property protection other than a patent;37 for subject-matter (information) that carries none of the value-added originality nor novelty necessary for copyright or the grant of a patent, even though there had been investment in its collation. while a competitor might re-create the database if the raw data was available elsewhere this would be economically inefficient. additionally a monopoly situation deters from the production of secondary products and might encourage abuses of market power.38 not only this, but the sui generis 36 as chalton and rees discussed, competing software manufacturers, and makers of electronic systems in general, receive favourable treatment in relation to use of another’s protected product. the software directive and the design right (semiconductor topographies) regulations 1989 allow for reproduction for the purpose of analysing or evaluating the design or the embodied concepts, processes, systems or techniques. this latitude has not been extended to databases, so that commercial use is more limited than private and non-commercial use. 37 and the ‘most dangerous’ in vaidhyanathan’s view: copyrights and copywrongs (new york, new york university press, 2001) at p 161. 38 in ‘database protection in the european union and the united states’, (1997) vanderbilt law review 50, neeta thakur argued that as a fair user can re-gather data and re-compile a database without infringing or by seeking a licence fair competition was not hindered. because, she said, a non-proprietary database maker faces price competition from efficient second-comers there was an incentive to licence at a reasonable rate, and to price reasonably or face price competition from rivals with access to data in the public domain. these competitive pressures should provoke efficiency in data collection and prevent any monopolistic behaviour by database right holders. the argument avoided, however, the potential reality that recreation would be inefficient and uneconomic, thus conferring a de facto monopoly on database makers, and the fact that much data is not in the public domain. protecting databases 96 right actively created an incentive to keep data out of the public domain, as illustrated by reichman and samuelson,39 thus not only monopolizing the collection of information but its free flow thereafter. this thakur acknowledged, proposing compulsory licences for sole-source data.40 however, examples of the potential power of this new right emerged in prebhb v william hill european cases.41 effects of the database directive the intention behind the sui generis right was to avoid the us situation where, in the absence of ipr, only contract and confidence could be employed to protect investment and against market failure.42 this limits dissemination of information to those with a relationship to the maker. however, if the european right over-protects databases, a similar restriction on access is the result. nor can comfort be taken in the directive’s effects being limited to europe as the european commission “aggressively” put the right forward as a model, incorporating it in association trade agreements. states adopting database legislation include most of eastern europe, the former soviet union and mexico.43 “database” is widely defined in the directive, going beyond a mere collection of data.44 the explanatory memorandum describes database 39 reichman j and samuelson p, intellectual property rights in data, (1997) vanderbilt law review 50. 40 compulsory licence provisions were included in the draft database directive but dropped from the adopted version. 41institute for information law, the database right file, http://www.ivir.nl/files/database/index.html (last visited january 16th 2007). 42 it should not be thought that the feist case leaves us owned databases overly vulnerable. relief from copying may lie in the ‘hot news’ misappropriation doctrine, contractual protection, trade secret protection, the law of trespass and technological protection measures. however, hasan points out the limitations of each: hasan a ‘sweating in europe: the european database directive,’ (2005) 9 comp l rev & tech j 479. 43 hugenholtz b, ‘abuse of database right: sole-source information banks under the eu database directive’, paper given at the ‘antitrust, patent and copyright’ conference, école des mines/uc berkeley, paris, january 15-16, 2004: http://www.ivir.nl/publications/hugenholtz/abuseofdatabaseright.html (last visited january 16th 2007). 44 encyclopaedias and multimedia cds may qualify. hugenholtz points out that database contents do need to be works or data and may include images, sounds and other entities (such as biological specimens). http://www.ivir.nl/files/database/index.html http://www.ivir.nl/publications/hugenholtz/abuseofdatabaseright.html the denning law journal 97 contents as information in its widest sense.45 before 2005, european case law granted the right to telephone directories, collections of legal materials, real estate information websites, listings guides, bibliographies, encylopaedias, address lists, company registries, exhibition catalogues, tourism websites, collections of hyperlinks, hit parades, and more. one of the main criticisms of the sui generis right was that it enabled publicly available information to be protected, as the uk decision in bhb v william hill appeared to confirm. the scientific community argued that repeated and systematic uses of parts of databases was normal in scientific research and did not unreasonably prejudice the maker’s legitimate interests. the lawful user exception was argued to be narrow and unclear in the nautadutilh study46 which preceded the commission’s report on the database directive.47 in particular, the study draws attention to the royal society’s strong criticisms of the database directive’s defence for the purposes for teaching or scientific research. they state that it is not mandatory for adoption by member states, is confined to lawful users, does not extend to reutilisation of data and the wording unclear, as is the restriction to noncommercial purposes, particularly as much research will have commercial applications and cannot be undertaken without such sources of funding. the uk research based industry estimated that the changed exception was likely to cost it £1m a year. the study also states that the potentially eternal protection for a dynamic sui generis database was felt to be excessive and unclear. and it concluded that “most users feared that the directive would hinder access to information”. looking at the database right from a competition point of view, hugenholtz says:48 45 hugenholtz b, ‘abuse of database right: sole-source information banks under the eu database directive’, paper given at the ‘antitrust, patent and copyright’ conference, école des mines/uc berkeley, paris, january 15-16, 2004: http://www.ivir.nl/publications/hugenholtz/abuseofdatabaseright.html (last visited january 16th 2007). 46 ‘the implementation and application of directive 96/9/ec on the legal protection of databases’, study-contract etd/2001/b5-3001/e/72: http://ec.europa.eu/internal_market/copyright/docs/databases/etd2001b53001e72_en.p df (last visited january 16th 2007). 47 ‘lawful’ is taken to refer to contractually licensed use, and not use permitted by the law; although the exception’s purpose was to allow for ‘permitted uses’ outside contract such as fair dealing and private copying. this should be compared to article 5 of the isd, which provides, albeit optional, exceptions for member states to the reproduction right without restriction to lawful – or licensed users. 48 hugenholtz b, ‘abuse of database right: sole-source information banks under the eu database directive’, paper given at the ‘antitrust, patent and copyright’ conference, école des mines/uc berkeley, paris, january 15-16, 2004: http://www.ivir.nl/publications/hugenholtz/abuseofdatabaseright.html http://ec.europa.eu/internal_market/copyright/docs/databases/etd2001b53001e72_en.pdf http://ec.europa.eu/internal_market/copyright/docs/databases/etd2001b53001e72_en.pdf protecting databases 98 “the anti-competitive effect of the sui generis right is inversely proportional to the latitude left to potential competitors to “invent around” a protected database. whenever the protected database is the sole source of certain information,…, protection by database right would amount to a full-fledged information monopoly preventing any uses in derivative markets.” further, the right has been used in actions against the activities of search engines, hindering the flow of information over the www.49 electronic agents, often termed “bots”, “spiders” or “crawlers”, provide automatic browsing of the web as part of software designed to enable users find web pages relevant to search terms. these agents retrieve a document, and then successively all those documents linked within its hypertext structure. all the documents retrieved are then indexed in a database contained their web address [url], and information from their text. users making a search are then supplied with a link to the document. consequently search engines, now that the web consists of at least 11.5 billion web pages,50 index several billion pages and store their text. finally a search engine contains software to link a user’s search with relevant pages from their database. by uploading a site a web site owner may be taken to be implying consent to access by crawlers as well as other users, particularly where their metadata includes keywords and descriptions of their content. however, web page owners may use robot exclusion protocol (robot.txt files) or robot metatags to indicate what of their site may be searched and indexed. this is dependent on the crawlers being programmed to detect these messages, but may suffice to negate any implied licence. online new providers and other web sites have taken exception to links to their content in several cases.51 it remains to be seen whether the ecj’s interpretation of the database directive would alter these cases. http://www.ivir.nl/publications/hugenholtz/abuseofdatabaseright.html (last visited january 16th 2007). 49 ruse h, ‘electronic agents and the legal protection of non-creative databases’, [2001] ijlit 295; cruquenaire a ‘electronic agents as search engines: copyright related aspects’, [2001] ijlit 327. 50 gulli a and signorini a, ‘the indexable web is more than 11.5 billion pages’, available at: http://www.cs.uiowa.edu/~asignori/web-size/ (last visited january 16th 2007). 51 see the database right file (institute for information law, university of amsterdam) at: http://www.ivir.nl/files/database/index.html#germany (last visited january 16th 2007); berlin online landgericht berlin 08.10.1998, o 448/98; sűddeutsche zeitung landgericht köln 02.12.1998 28 o 431/98. http://www.ivir.nl/publications/hugenholtz/abuseofdatabaseright.html http://www.cs.uiowa.edu/~asignori/web-size/ http://www.ivir.nl/files/database/index.html#germany the denning law journal 99 interpretation it soon became clear that the database directive did not provide clear guidance, and national courts reached differing conclusions in its interpretation. this was particularly so in relation to the meaning of “substantial investment”. questions arose where the database activity was not the main business of an enterprise, so that while the “subsidiary” (or “spinoff”) activity of compiling a database of real estate property did amount to protectable investment in the dutch case of nmv v de telegraaf (2000), in anther dutch case it was held that newspaper headlines did not, comprising a mere “spin-off” from the prime activity of newspaper publishing (algemeen dagblad a.o. v eureka (2000)). another area of difference related to exploitation of online databases by search engines providing hypertext links, centring on the interpretation of “substantial part”. in the german case of paper boy (2003) hypertext linking to headings of press articles was held not to infringe the database owner’s right,52 while in other similar cases deep linking to articles has been held to infringe.53 technological protection monopolisation of information is equally a hazard of copyright law adapted to the digital era.54 protection has been extended to technological measures that can be used to protect digital copyright works either from access or copying as a result of implementation of the world copyright treaty.55 52 german federal court of justice, 18 july 2003. 53 berlin online district court, berlin, october 1998; sűddeutsche zeitung, landgericht kőln, 2 december 1998; newsbooster.com, district court, copenhagen, 16 july 2002. 54 and not only copyright, contract can be used to similarly restrict access to information so as to confine it to access only with payment: jurisline v reed elsevier. for an account of this litigation see halvorsen t ‘the jurisline litigation: implications for alternative online sources of primary legal authority’: http://www.lexnotes.com/industry/jurisline/jurisimp.htm (last visited january 16th 2007). 55 article 11 states: “contracting parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this treaty or the berne convention and that restrict acts, in respect of their works, which are not authorised by the authors concerned or permitted by law.” http://www.lexnotes.com/industry/jurisline/jurisimp.htm protecting databases 100 the effect of this can be seen both in the implementation in the united states in the digital millennium copyright act [dmca] 1998, and the potential consequences of the information society directive in european union member states. exclusivity based on technology has the potential to be unlimited in extent.56 not only that, technological control over access and/or copying of digitised works is, at present, a blunt instrument.57 all use is blocked, as the controls have not been engineered to detect and limit only infringing uses of copyright. should a legislature determine that some limitations over technological control are essential, it would require the provision of technology to circumvent the controls. however, experience already shows that any such circumvention technology would quickly spread and effectively enable all access, whether permitted or not,58 making it difficult to allow for permitted uses of information. this conundrum is well illustrated by both dmca and the information society directive. digital format poses considerable problems in relation to the traditional copyright balance. legal protection given to technological digital rights management by section 1201 digital millennium copyright act 199859 in the united states and the information society directive in the european union has given rise to criticisms that the freedom of expression is jeopardised, as is the right of private copying. information published in copy-protected form, without another source, is effectively monopolised. while, in the united states constitutional guarantees for freedom of expression may be invoked against this monopoly, the information society directive merely places the onus to allow for private copying on member states without any indication of how this may be done. consequently, copyright’s idea/expression dichotomy may prove an ineffective “balancing aid” for databases. 56 koelman, ‘the protection of technology measures vs the copyright limitations’, alai congress adjuncts and alternatives for copyright, new york, june 2001, http://www.ivir.nl/publications/koelman/alainy.html (last visited january 16th 2007). 57 koelman, ‘the protection of technology measures vs. the copyright limitations’, alai congress adjuncts and alternatives for copyright, new york, june 2001, http://www.ivir.nl/publications/koelman/alainy.html (last visited january 16th 2007). 58 universal city studios v reimerdes, sdny 00 civ. 0277 (lak), upheld by the united states court of appeals for the second circuit, november 2001. appeal to the supreme court was dropped in july 2002. 59 http://www.loc.gov/copyright/title17/92chap12.html (last visited january 16th 2007). http://www.ivir.nl/publications/koelman/alainy.html http://www.ivir.nl/publications/koelman/alainy.html http://www.loc.gov/copyright/title17/92chap12.html the denning law journal 101 the uk copyright and related rights regulations 200360 technological protection measures61 [tpms] applied to copyright works or unoriginal databases receive legal protection against circumvention. this protection does not extend to tpms which control uses of a work outside the scope of copyright or database right.62 at least theoretically, therefore, if circumvention technology can be produced which only enables permitted uses of protected works or databases it would be legitimate to both use and deal with such devices or services. copyright owners, their exclusive licensees, as well as publishers (including electronic publishers) have the same rights as a copyright owner has against infringers against a person who circumvents effective tpms applied to a work, knowing or having reasonable grounds to believe that he is pursuing that objective.63 they have the same rights against those who deal in circumvention devices and services.64 these provisions are expressly extended to the database right – cdpa 1988, s. 296za(6). it is also a criminal offence to deal in devices or services designed to circumvent effective tpms.65 permitted uses if tpms prevent permitted uses66 complaint may be made to the secretary of state by a user or representative of a class of users. the secretary of state has power to make such directions as are requisite or expedient to establish whether any voluntary measure or agreement exists, or in the absence of any voluntary provision to make the permitted use available. the recipient of any 60 the copyright and related rights regulations 2003/2498 [crrr] implemented the information society directive by amending the cdpa 1988, and came into force on 31st october 2003. 61 tpms are defined as ‘any technology, device or component which is designed, in the normal course of its operation, to protect a copyright work other than a computer program’: cdpa 1988, s 296zf. they are effective where the copyright (or database right) owner controls use through an access control or protection process such as encryption, scrambling or other transformation of the work, or through a copy control mechanism which achieves its intended protection. 62 cdpa 1988, s 296zf(3). 63 cdpa 1988, s 296za. 64 cdpa 1988, s 296zd. this section is equally applied to unoriginal databases – cdpa 1988, s 296zd(8). 65 cdpa 1988, s 296zb. this section is not expressly applied to unoriginal databases. 66 listed in cdpa 1988, schedule 5a. these include reg 20 and schedule 1 of the copyright and rights in databases regulations 1997, si 1997/3032. protecting databases 102 such notice is under a statutory duty to comply.67 the gowers review of intellectual property68 noted that by the time of the report in december 2006 no notice of complaint had been filed, and that both the consumer project on technology and the rnib had told the parliamentary aipg committee that the process is “slow and cumbersome”. nor does this provision apply where copyright works or databases69 have been made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them.70 the effect is that information locked into copyright or unoriginal databases by tpms may only be accessed at a price, or with considerable difficulty through a cumbersome administrative procedure. however, where licensing schemes exist, the copyright tribunal does have jurisdiction over schemes relating both to database copyright and the database right.71 effects of technological protection that technological protection has led to restrictions over the use of information can be seen in evidence given by the library associations to the library of congress stating that journals from the american chemical society request that they be allowed to send cookies to users’ workstations to monitor use.72 a user refusing this invasion of privacy is denied access at her workstation even though her organisation has a subscription to the journal. similarly, on 29th march 2002 the times reported that syngenta, a swiss agrochemical company had declined to place the genetic code of rice, the world’s most important food crop, in the unrestricted public database genbank; publishing it in the journal science but maintaining the raw data in a private website to which they control access. similar controversy surrounded the publication of the human genome by celera in 2000.73 the british library added its concerns in 2006, arguing that tpm may 67 cdpa 1988, s 296ze(5). 68 gowers review of intellectual property, december 2006: http://www.hmtreasury.gov.uk/independent_ iews/gowers_ iew_intellectual_property/gowers iew_index.cfm rev rev re v (last visited 16th january 2007). 69 cdpa 1988, s 296ze(11). 70 cdpa 1988, s 296ze(9). 71 copyright and rights in databases regulations 1997, reg 24 and schedule 2. 72 comments of the library associations, august 2000. http://www.copyright.gov/reports/studies/dmca/comments/init018.pdf (last visited january 16th 2007). 73 genome data access row’, december 8th 2000: http://news.bbc.co.uk/hi/english/sci/tech/newsid_1061000/1061565.stm (last visited january 16th 2007). http://www.hm-treasury.gov.uk/independent_iews/gowers_iew_intellectual_property/gowersiew_index.cfm http://www.hm-treasury.gov.uk/independent_iews/gowers_iew_intellectual_property/gowersiew_index.cfm http://www.hm-treasury.gov.uk/independent_iews/gowers_iew_intellectual_property/gowersiew_index.cfm http://www.copyright.gov/reports/studies/dmca/comments/init018.pdf http://news.bbc.co.uk/hi/english/sci/tech/newsid_1061000/1061565.stm the denning law journal 103 inadvertently prevent fair dealing and library privilege uses. they also predict that by 2020 90% of newly published work will be available digitally. without the digital keys to tpms which are not adapted to permitted uses, libraries fear that they will be powerless.74 it should be noted that recent canadian legislation requires publishers of online resources in encrypted form to supply decrypted data or to remove or disable tpms before deposit under their legal deposit regulations.75 the database right may also be used to challenge internet information location tools such as spiders and bots. equally, hypertext linking to documents has been found to infringe the database right in circumstances such as the danish newsbooster case.76 newsbooster provided an online news updating service, but were found to have infringed the newspaper’s database rights by providing deep links direct to articles in the online versions of the papers. using “bots” to scour the papers’ web sites was held to infringe the danish copyright act. the situation in europe is not clear, however, with a number of differing interpretations of the database directive giving apparently inconsistent results. in the dutch kranten.com77 case, on its facts, deep linking to online newspaper articles by using their headlines was found not to infringe the database right. however, as the court pointed out in kranten.com the use of spiders and other “bots” can be guarded against by the use of technology.78 meanwhile, newsbooster launched a peer-to-peer service in an attempt to evade the court’s ruling. in september 2006 a belgian court ordered google news to remove headlines, excerpts of news stories, and small photographs from its news search service within 10 days, or to face fines of 1,000,000 euro per day.79 74 youngs i, ‘libraries fear digital lockdown’, bbc news, 3 february 2006: http://news.bbc.co.uk/1/hi/technology/4675280.stm (last visited january 16th 2007). 75 michael geist ‘centuries old library program enters 21st century’, ottawa citizen, 16th january 2007: http://www.canada.com/ottawacitizen/news/business/story.html?id=5136a19d-f29347fb-8612-12be94b5feb9 (last visited 16th january 2007). 76 pressenhus.dk v newsbooster.com: http://www.out-law.com/page-2749 (last visited 16th january 2007). 77 pcm v kranten.com, case/docket number 138609/kg za 00-846, district court of rotterdam, 22 august 2000. 78 strachan j, ‘the internet of tomorrow: the new-old communications tool of control’, [2004] eipr 123. 79 ‘google ordered by belgian court to remove all belgian news and photographs’, http://www.chillingeffects.org/international/notice.cgi?noticeid=5133 (last visited 16th january 2007). http://www.chillingeffects.org/international/notice.cgi?noticeid=5133 http://news.bbc.co.uk/1/hi/technology/4675280.stm http://www.canada.com/ottawacitizen/news/business/story.html?id=5136a19d-f293-47fb-8612-12be94b5feb9 http://www.canada.com/ottawacitizen/news/business/story.html?id=5136a19d-f293-47fb-8612-12be94b5feb9 http://www.out-law.com/page-2749 protecting databases 104 effects of contractual protection there are already many anecdotal pieces of evidence suggesting that the strength of contractual measures added to legal and technological protection give database owners unwarranted control. in canada the company to whom the canadian hydrographic service (who make the charts at tax-payers expense) assigned the copyright in marine charts in electronic form succeeded in a copyright action against other producers of the charts. the result was that boat owners using devices reliant on the infringing electronic charts would not be able to use up-to-date charts, the implications of which were perceived to be highly dangerous. this should be contrasted with the decision of the supreme court of canada in law society of upper canada v cch canadian (2004).80 there, the court applied a wide interpretation of the fair dealing defence to an allegation of infringement by photocopying cases and articles. in particular, importantly, they advocated the exceptions to copyright being regarded as users “rights”. an increasing number of works are, and will be, released only as cdroms or online, and not in “traditional” format. any use after paid for access is potentially then subject to further contractual restrictions even though the reason given for not prohibiting circumvention of copy-protected works was to allow fair use – but only once access has been secured.81 licences for ebooks typically have contained restrictions against reading the book aloud, for example. lessig highlighted the absurdity and implications of some of adobe system’s terms as early as march 2001.82 “it means”, lessig said: “…that we should be addressing the issues of copyright in cyberspace in light of the full range of values that copyright law is meant to protect – both the interest of the copyright 80 law society of upper canada v cch canadian, 2004 scc 13. 81 this danger was foreseen at the international conference on the management and legitimate use of intellectual property, strasbourg, july 2000, organized by the internal market directorate-general of the european commission. discussions in panel 2 led to the conclusion that ‘many held the view that such examination [of contractual law aspects of exploitation of intellectual property rights] should also serve to avoid the substitution of intellectual property law by contract law.’ http://ec.europa.eu/internal_market/copyright/docs/conference/2000-07-strasbourgconclusions_en.pdf (last visited january 16th 2007). 82 lewis carroll’s ‘alice’s adventures in wonderland’ lies within the public domain, yet the terms that had previously been in force said ‘no text selections can be copied from this book to the clipboard’. ‘alice in wonderland’, march 19 2001, the industry standard. http://ec.europa.eu/internal_market/copyright/docs/conference/2000-07-strasbourg-conclusions_en.pdf http://ec.europa.eu/internal_market/copyright/docs/conference/2000-07-strasbourg-conclusions_en.pdf the denning law journal 105 holder, and the free flow of ideas.83 both the interest against piracy and the interest to assure adequate access and fair use.” true to his word, he84 initiated a new project, the creative commons,85 with this aim in mind.86 this created new digital licences, drawing on the open source model for software,87 both providing licence information easily to users, and operating as a clearinghouse for rights for a limited number of works. in the uk, the copyright tribunal has jurisdiction over licensing schemes relating both to copyright and database right licensing schemes, as was illustrated by the itv and bbc v time out case. and the database directive prevents contractual limits on the extraction and use of insubstantial parts of a database.88 however, careful drafting may limit the uses permitted to the “lawful user”. the courts may be able to mitigate some of the effects of such drafting. in royal mail group v i-cd publishing (2004),89 lloyd j held that the licence granted by the claimant to use the postcode address file allowed for its use for validation by the defendant. the royal mail has a statutory duty to licence its rights in the database to third parties on reasonable terms.90 the court’s interpretation of the licence accepted that few databases will not be able to be paf validated, but had the royal mail succeeded the consequences would have been far reaching. they were effectively claiming rights in all postal addresses in the database. as the vast majority of customer databases in the uk are paf validated, the royal mail could have prevented their owners 83 vaidhyanathan s, also argues for a balanced ‘thin’ protection for copyright and information in copyrights and copywrongs (new york, new york press, 2001). 84 lessig fears the increasing technological control exercised over the internet may prove an attack on the freedom to innovate, and expands his views arguing strongly for a public commons in the future of ideas, (new york, random house, 2001). 85 http://www.creativecommons.org/ (last visited january 16th 2007). 86 john borland, ‘lessig plans digital rights organisation’, cnet news.com, http://news.com.com/2100-1023-834775.html (last visited janaury 16th 2007).; hal plotkin ‘all hail creative commons stanford professor and author lawrence lessig plans a legal insurrection’ http://www.sfgate.com/cgibin/article.cgi?f=/g/a/2002/02/11/creatcom.dtl&hw=all+ hail+creative+commons+stanford+professor+author+lawrence+lessig+plans+lega l+insurrection&sn=001&sc=1000 (last visited january 16th 2007). 87 http://www.opensource.org/index.html (last visited january 16th 2007). 88 copyright and rights in databases regulations 1997/3032, reg 19(2); database directive, article 8. 89 [2004] ewhc 286. 90 postal services act 2000, s 116. http://www.sfgate.com/cgibin/article.cgi?f=/g/a/2002/02/11/creatcom.dtl&amp;hw=all+hail+creative+commons+stanford+professor+author+lawrence+lessig+plans+legal+insurrection&sn=001&sc=1000 http://www.creativecommons.org/ http://news.com.com/2100-1023-834775.html http://www.sfgate.com/cgibin/article.cgi?f=/g/a/2002/02/11/creatcom.dtl&amp;hw=all+hail+creative+commons+stanford+professor+author+lawrence+lessig+plans+legal+insurrection&sn=001&sc=1000 http://www.sfgate.com/cgibin/article.cgi?f=/g/a/2002/02/11/creatcom.dtl&amp;hw=all+hail+creative+commons+stanford+professor+author+lawrence+lessig+plans+legal+insurrection&sn=001&sc=1000 http://www.opensource.org/index.html protecting databases 106 from exploiting those databases in which expense and effort had been invested. the outcome the combined effect of the database right, and legal protection for digital rights management can be seen to have departed from the traditional balanced approach taken by intellectual property in general and copyright in particular.91 even if a public database owner could argue that the profits from the database could ultimately be employed for the state’s benefit and therefore serve an economic and utilitarian purpose, this cannot be said to benefit the global right to access.92 the dangers lie in the wide scope of the database right; if virtually all collections of works and data fall within the definition of “database”, the traditional balances served by copyright law can be bypassed; particularly if the limitations determined by the ecj can be bypassed by careful corporate structuring and outsourcing. because many databases may be protected both by copyright and the sui generis right, it was pointed out in the 2001 nautadutilh study commissioned by the european commission93 that the safest option of users was to follow the narrower exceptions of the sui generis right, thus restricting access more than was perhaps intended. the study suggested that the exceptions should be co-terminous with those of the information society directive and copyright. most debate centred on educational and research uses. 91 adopting a libertarian and nozickian analysis, cahir argues that there is no moral justification for copyright and that drm and contract should replace it, allowing the market to regulate access as an efficient and effective regulation of information flow: cahir j ‘the moral case against copyright law in the digitally networked environment,’ presentation at the ahrb network on new directions in copyright law, 4 february 2004. however, this is to ignore the current undiscerning nature of tpm and evidence of monopolistic practices exercised by those with technological and contractual control. while the moral argument may be sustainable, current regulation of unfair contract terms in the face of inequalities of bargaining power, as well as the uk’s copyright tribunal’s jurisdiction over collective licensing suggests that market forces alone do not serve the interests of fair and just distribution of resources. it can also be argued that individual rights are violated in some cases, where tpm do not allow format-shifting by owners of works. 92 corbett s, ‘a human rights perspective on the database debate’, [2006] eipr 83. 93 ‘the implementation and application of directive 96/9/ec on the legal protection of databases’, study-contract etd/2001/b5-3001/e/72: http://ec.europa.eu/internal_market/copyright/docs/databases/etd2001b53001e72_en.p df (last visited january 16th 2007). http://ec.europa.eu/internal_market/copyright/docs/databases/etd2001b53001e72_en.pdf http://ec.europa.eu/internal_market/copyright/docs/databases/etd2001b53001e72_en.pdf the denning law journal 107 one of the main concerns that digitisation of work and data and online access to them has wrought lies in the erosion of the public/private use divide that could be drawn for an analogue work. for analogue works copying and use on a commercially significant scale was beyond the capacities of the ordinary home user. but once access is electronic wide-scale and good quality reproduction is available to all. while tpm are designed to prevent this, they cannot make nice distinctions between the commercial and private user. to apply them indiscriminately is, nevertheless, to prevent uses otherwise allowed in the analogue age. british horseracing board v william hill94 this case concerned a database constructed as an aid to the claimant’s prime functions as the governing body for horseracing, rather than a database manufactured as their prime activity as the architects of databases or even suppliers of information.95 nevertheless, its contents were widely published and in the public domain so that the finding of infringement was alarming. holding that the directive’s definition of a database covered virtually any searchable collection of data, at first instance laddie j, however, dismissed the investment related to creating data for inclusion in the database before its actual collection and insertion. that he was then prepared to find the remaining investment substantial enough to confer protection on the database is significant, given the later findings of the ecj. it demonstrates the weakness of the ecj’s attempt to limit protection for information. he said: “in practice where one person both creates the underlying data and gathers it together, as bhb does, it may be difficult to draw a sharp dividing line between the two activities.” 94 british horseracing board ltd v william hill organisation (2001) was the first case on the sui generis database right in the united kingdom. 95 the database was made available to the public in different ways. information was supplied to the industry daily on the joint wetherbys/bhb website and by publication through weekly publication of relevant information in the bhb’s official journal, the racing calendar. further publication to interested parties (bookmakers, the media) was through racing pages ltd (owned by wetherbys and the press association), which forwarded an electronic declarations feed to subscribers the day before a race. this provided an accurate and up-to-date list of races, declared runners and jockeys, saddle-cloth numbers, race distances, times and number of runners in each race. data was also supplied to satellite information services ltd [sis] who could use it for onward transmission to subscribers as a raw data feed. protecting databases 108 laddie j also refused the application of any copyright principles, such as the distinction between idea and expression, which might have served to allow facts within the database to enter the public domain. william hill appealed, and the court of appeal lifted the permanent injunction, nevertheless holding that there should be a reference to the ecj on the interpretation of the directive.96 early indications from the ecj were not encouraging. in her opinion,97 advocate general stix-hackl reaffirmed the directive’s intention to protect the database and not information within it, as the object was to protect investment, not information. however, her opinion adopted wide interpretation of the directive.98 the european court of justice the european court of justice decided both the bhb and fixtures marketing99 references in november 2004. that they did not follow the wide interpretations of the directive by the advocate general may be seen as an 96 it then seemed unlikely that laddie j’s wide interpretation of the directive would be overruled on appeal as the court indicated their support for the decision. 97 bhb v william hill organisation (2004), case c-203/02. 98 “obtaining” was said not to include the generation of new data, but where the act of generation coincided with the collection and screening of data, protection would apply. she continued to say that the purpose for which a database was created did not affect the question whether it may be protected, so that databases created as a ‘spinoff’ to an enterprise’s main activity were subject to the right. she therefore took the view that the registration functions performed by wetherby’s as they generated the race information might fall within “obtaining” if ‘the creation of the data took place at the same time as its processing and was inseparable from it.’ verification, she said, applied to checking information within a database, and not to prior acts before information was included. she denied that article 7 should be read in conjunction with the definition of a database so as to relate the taking of a substantial part to the method and arrangement of a database’s contents, thus taking the same view as laddie j as to protection being confined to ‘databaseness’. nor could recitals 45 and 46 (which deny protection to underlying information) be employed to that effect. ‘extraction’ was interpreted to include permanent or temporary transfer of all or a substantial part of a database’s contents. it only applied to direct transfers. substantiality was a qualitative and quantitative test. ‘utilisation’ related to making a substantial part available to the public, and might be indirect. rearranging such data would continue to infringe. finally, she decided, protection for dynamic databases resulted in new protection for the whole database on a ‘rolling’ basis. 99 fixtures marketing ltd v svenska spel ab, case c-338/02, fixtures marketing ltd v oy veikkaus ab, case c-46/02, fixtures marketing ltd v opap, case c-444/02. the denning law journal 109 indication that the fears regarding the effects of the sui generis right were seen to be real. the organisers of english and scottish professional football retain fixtures marketing ltd to grant licences to exploit uk football fixture lists outside the uk. the fixture lists were collated electronically and in printed booklets, at an annual cost of some £7 million. the defendants, in sweden, greece and finland, operated pools using data from the lists. they obtained the information from the internet and newspaper sources, or from the football clubs, and were not licensed users of the fixtures lists, having declined to take licences. similar references were made by national courts on the interpretation of the database directive, and, like the bhb database the fixture lists might be regarded as “spin-off” activities not central to their creator’s main activities. unlike the results of the earlier uk bhb actions the ecj took a more restricted view of the ambit of sui generis database protection, and did so by emphasising the directive’s purpose to protect investment in the generation of databases as storage and processing tools for information, not the information itself. the four rulings are in cohesive terms. the result is to curtail the number of databases falling within the definition of a protected database, by narrowly interpreting the type of investment intended to be protected. this apart, the infringing acts are given a wide interpretation; with the result that, if the first narrow interpretation can be avoided by careful corporate structuring, database protection continues to plague the flow of information. the definition of a database in fixtures marketing ltd v opap (2004) the court considered the definition of a database. they held that it was irrelevant whether a database contains materials created by the database maker himself, or taken from other sources, nor was the fact that a database contained sporting information significant. what was important was to interpret the definition within the context of its purpose as defined in the directive. accordingly, protection was designed to encourage development of systems for storing and processing information.100 a database should therefore consist of a collection of independent materials, separable from one another without their informative value being affected. it is for this reason that a collection of audiovisual, cinematographic, literary or musical works does not fall within the definition.101 the requirement that the database contents be systematically arranged and individually accessible then presupposes a “fixed base” and 100 database directive, recitals 10 and 12. 101 database directive, recital 17. protecting databases 110 technical102 or other means103 to allow retrieval of independent items. they expressed the view that football league fixture lists fell within this definition. investment in obtaining and verifying the contents this too was give a purposive interpretation, so that it is not investment in the creation of the contents of a database that is required, but investment in resources to seek out independent materials and collect them.104 investment in verification of contents relates to resources used to ensure the reliability of information in a database, and to monitor the accuracy of materials collected when the database was created and during its operation. this must be distinguished from resources employed in verification when data is created and before subsequently being collated. the court was not prepared completely to exclude “spin-off” databases from protection. however, where a database’s creation is linked the database maker’s principal activity of creating the data, they emphasised that only substantial investment in obtaining and verifying the data as part of creating the database, and not its creation, could be considered relevant: “…the collection of those data, their systematic or methodical arrangement in the database, the organisation of their individual accessibility and the verification of their accuracy throughout the operation of the database…require substantial investment in quantitative and/or qualitative terms…” consequently resources invested in selecting the horses to run in certain races, and the checks made before entering runners on the list, related to creation of data for the lists in the bhb database in the ecj’s view. in the same vein the ecj held that the resources used to establish the dates, times and team pairings for football league matches could not be taken into account in the fixtures marketing ltd references. 102 such as electronic, electromagnetic or electro-optical processes. 103 such as an index, table of contents, or plan or method of classification. 104 database directive, recital 39. they said: “the purpose of the protection by the sui generis right provided for by the directive is to promote the establishment of storage and processing systems for existing information and not the creation of materials capable of being collected subsequently in a database.” the denning law journal 111 extraction and re-utilisation purposive interpretation was again applied to the acts of extraction and reutilisation, which extended to acts harmful to a database maker’s investment105 in forming the database: “…the sui generis right has an economic justification, which is to afford protection to the maker of the database and guarantee a return on his investment in the creation and maintenance of the database.” the acts themselves are to be widely interpreted as any act of appropriating the results of the database maker’s investment106 and making it available to the public. it is irrelevant that an unauthorised act is for the purpose of creating another database, whether in competition or not, and of the same or a different size. nor is it relevant that the act is for a different purpose altogether, commercial or non-commercial. the ecj also reaffirmed that unauthorised acts need not be direct as indirect taking would equally jeopardise the protected investment. consequently, the potential for rights over data itself remains. however, the prohibition against extraction and re-utilisation does not extend to consulting a database if access has not been otherwise restricted. if a database maker authorises another to re-utilise the contents of his database his consent to making those contents available to the public is implied, creating an alternative means of access to the information. but if the database maker’s consent only extends to consultation, it does not entitle the user to extract or re-utilise the information in the whole or a substantial part of the database. only insubstantial part may be extracted or re-utilised. the same applies even where the database maker has made his database available to the public unless one of the exceptions applies. consequently, even though the bhb database was made available to the public, william hill was not entitled to extract or re-utilise a substantial part without authority. this they had done by transferring bhb data from one medium to another, integrating the data into their own system, and re-utilising it by making it available to the public on the internet. 105 database directive, recitals 42 and 48. 106 depriving him of the revenue which should have enabled him to redeem the cost of that investment. one assumes that the ecj did not intend that database maker’s should not profit from their investment. protecting databases 112 substantial part whether a part is substantial quantitatively or qualitatively depends on the prejudice caused to the substantial investment in the database’s creation by its maker. quantitative evaluation of a substantial part relates to the volume of data taken assessed in relation to the volume of the whole. qualitative evaluation refers to the scale of investment in the obtaining, verifying and presenting of the extract’s contents regardless of whether it is quantitatively significant in terms of the whole. therefore a “quantitatively negligible part of the contents of a database may in fact represent, in terms of obtaining, verification or presentation, significant human, technical or financial investment”. the intrinsic value of individual items of information themselves is not a relevant factor, as the directive does not provide protection for the information itself107. consequently, bhb’s argument that without the information which william hill had extracted, races could not run was not a relevant consideration in deciding whether the taking was substantial. quantitatively it was insignificant, and the investment adverted to had been expended in creation of the data, not its insertion into database form. it was not therefore extraction and re-utilisation of a substantial part in the ecj’s eyes. repeated insubstantial taking the ecj emphasised that the provision against repeated insubstantial taking is intended to prevent the acts of taking a substantial part being circumvented. it is to prevent repeated and systematic taking the cumulative effect of which “would be to seriously prejudice the investment made by the maker of the database” in the same way that taking under article 7(1) of the directive would. the insubstantial taking would therefore have to lead to the recreation of the whole or a substantial part of the database, whether or not the taking was intended to create a second database. they found that william hill’s taking was not intended to circumvent article 7(1). dynamic databases the ecj did not address the court of appeal’s eleventh question, and this point remains moot.108 the court of appeal applied the ecj’s ruling,109 holding that the bhb’s database did not fall within the right. jacob lj founded his decision on the 107 database directive, recital 46. 108 bhb v william hill (2005) c.a. the denning law journal 113 fact that the published database did not consist of “existing independent materials” because until the bhb gave their stamp of approval to the race lists, effectively there was no information at all to be collected. however, pill lj draws attention to paragraph 38 of the ecj’s judgment, where they state: “…investment in the selection, for the purpose of organising horse racing, of the horses admitted to run in the race concerned relates to the creation of data which make up the lists for those races which appear in the bhb database. it does not constitute investment in obtaining the contents of the database. it cannot, therefore, be taken into account in assessing whether the investment in the creation of the database was substantial.” the conclusion might be drawn that had the bhb pleaded investment in the actual creation of the database itself, the result might have been different unless jacob lj’s reasoning is accepted. commentary the ecj were clearly concerned about criticism of over protection for sole source databases resulting from the database directive, and sought to employ the “spin-off” doctrine to reduce the new right’s impact, as had some national courts before them. they did so by attempting to restrict the protection of the right to the investment required to design and construct a database “around” pre-existing contents,110 leaving the creation of those contents unprotected, and their re-use in the public domain. they also linked the infringement provision to the qualifying substantial investment criterion, so that it is apparently the act of building databases that receives the right, and not the contents. however, it seems that this may be easily avoided by careful business planning and accounting. the bhb had invested in creation, not collation, and thus received no protection from the right. william hill had not taken a quantitatively or 109 bhb v william hill organisation [2005] ewca civ 863. 110 however, juliet jenkins suggests that the ecj’s restriction of protection to independent materials whose informative value must not be affected by separation is to go a step too far. she argues that the informative value of both interrelated and interdependent materials may be affected by separation (in both cases the material’s collected value will exceed that of its individual elements), but that recital 17 of the database directive suggests that it was intended to exclude interdependent materials, but not interrelated content; jenkins j ‘database rights’ subsistence under starter’s orders’, [2006] jiplp 467. protecting databases 114 qualitatively substantial part, even though the information was vital to organisation of horse races. nor did their systematic use create the danger that william hill could recreate the bhb database. in the future fixtures cases, the ecj discounted investment in the verification undertaken while the fixtures lists were being drawn up as this amounted to creating data; the same was true even of amendments to the lists during the season to reflect changes to the schedules as it was not “substantial investment”. substantial investment in presentation was stated to be that which gave a database its information processing functions – the information’s arrangement and accessibility. as the investment in presentation was too closely related to the creation of the fixture lists, this too was discounted. hugenholtz describes presentation as “the retrieval and communication of …compiled data, such as the digitalisation (scanning) of analogue files…or the design of a user interface”,111 although the database directive itself makes clear112 that merely placing songs on a cd will not amount to substantial investment. in berlin online113 digitisation coupled with selecting, updating and verifying the property advertisements did constitute substantial investment, but this predated the ecj decisions and should be contrasted with the dutch case of algemeendagblad bv/eureka internetdiensten.114 there is a significant weakness in the ecj’s approach. it would appear that these results can be evaded – by distinguishing the entities or undertakings creating information, and those creating the database, or at least to record their investment separately. separate investment in verifying content might suffice to satisfy the investment requirement, particularly if the creation of that content is undertaken by a different concern.115 chronological distinctions in budgeting may also help to allocate investment to database manufacture as opposed to data creation. third parties may be employed to create the database. as hugenholtz says, “[a]dmittedly, such investment will not be difficult to achieve, and producers of sole-source databases will be 111 hugenholtz b, ‘abuse of database right: sole-source information banks under the eu database directive’, paper given at the ‘antitrust, patent and copyright’ conference, école des mines/uc berkeley, paris, january 15-16, 2004: http://www.ivir.nl/publications/hugenholtz/abuseofdatabaseright.html (last visited january 16th 2007). 112 database directive, recital 17. 113 berlin online, landgericht, berlin, 08.10.1998. 114 algemeendagblad bv/eureka internetdiensten, ordinary court of first instance, rotterdam, 22 august 2000. 115 jenkins j, ‘database rights’ subsistence under starter’s orders’, [2006] jiplp 467. http://www.ivir.nl/publications/hugenholtz/abuseofdatabaseright.html the denning law journal 115 quick to realise this”.116 additionally, the narrower infringement provision can be avoided by constructing smaller databases, so that what is taken is quantitatively substantial.117 nor will the limitations imposed by the ecj affect databases not involving “created” data, such as the human genome database held by celera or the databases held by large scientific publishers such as reed elsevier. it will be harder to claim the right, or that it has been infringed. database manufacturers will need to document their processes carefully, and allot separate budgets so as to distinguish investment in creation of information, and investment in collation and database creation.118 however, it would seem that database manufacturers may be able to organise their operations so as to avoid the major restrictions imposed by the ecj. the distinction between the creation of information and investment in obtaining, verification and presentation of contents seems an artificial one.119 one wonders what the result might have been had the horse owners contacted the bhb rather than the bhb them. any line between the creation and gathering of information must be a fine one. had the bhb contracted out the call centre, but then engaged on gathering and verifying the data generated there and invested in that, again the result might be very different. one can only suppose that database manufacturers hoping to exploit “spin-off” information will construct their undertakings accordingly. the bhb must have had a very considerable set-up investment for the database, independent of the continued maintenance of the operation to provide the annual lists. it seems that the limitations the ecj hoped to create in order to meet criticism of 116 hugenholtz b, ‘abuse of database right: sole-source information banks under the eu database directive’, paper given at the ‘antitrust, patent and copyright’ conference, école des mines/uc berkeley, paris, january 15-16, 2004: http://www.ivir.nl/publications/hugenholtz/abuseofdatabaseright.html (last visited january 16th 2007). 117 hui s and stokes s, ‘court of appeal cuts back the legal protection for databases’, (2005) 16 c & l, issue 3, 14. 118 hui s and stokes s, ‘court of appeal cuts back the legal protection for databases’, (2005) 16 c & l, issue 3, 14. 119 as hugenholtz puts it: ‘distinguishing between data ‘creation’ (generation) and data ‘obtaining’ (gathering) raises philosophical questions well beyond the ambit on intellectual property and competition law.’ it may be that intellectual property law and competition law must face these questions, nevertheless. hugenholtz b ‘abuse of database right: sole-source information banks under the eu database directive’, paper given at the ‘antitrust, patent and copyright’ conference, école des mines/uc berkeley, paris, january 15-16, 2004: http://www.ivir.nl/publications/hugenholtz/abuseofdatabaseright.html (last visited january 16th 2007). http://www.ivir.nl/publications/hugenholtz/abuseofdatabaseright.html http://www.ivir.nl/publications/hugenholtz/abuseofdatabaseright.html protecting databases 116 the right’s scope and effect on access to information might be very easily avoided with some pre-planning. the commission’s report notes that commentators have read the ecj rulings as a major blow to the funding plans of sports bodies planning to generate income from exploiting data generated during the course of their activities.120 consequently, it is likely that database makers will look for, and possibly find, ways of evading the ecj’s result, probably by securing databases to access control. and it is clear that the ecj’s rulings contemplate a pay-per-view model for information in databases through the combined effects of the database right and the use of technological protection measures.121 the commission’s report the commission’s original proposal for a directive provided that compulsory licensing should apply to the sui generis right. licences were to be granted on fair and non-discriminatory terms when the information contained could not be independently created, collected or obtained from any other source; the database had to be publicly available and member states had to provide for adjudication for the grant of licences. this provision was removed in a compromise reached with the council. as this was controversial, inter alia, article 16 requires the eu commission to report to the european parliament, the european economic and social committee and the european council on the application of the directive.122 preliminary report in december 2005 the commission issued a first evaluation123 of the directive. the outcome was ambivalent at best, and further consultation was 120 the bhb was hoping to generate more than £100 million a year by licensing sporting data. football’s governing body will also lose substantial revenue if fixture information cannot be licensed. 121 para 57, bhb v william hill, 9 november 2004. 122 article 16, database directive:... inter alia,…it shall examine the application of the sui generis right, including articles 8 and 9, and shall verify especially whether the application of this right has led to abuse of a dominant position or other interference with free competition which would justify appropriate measures being taken, including the establishment of non-voluntary licensing arrangements. 123 ‘first evaluation of directive 96/9/ec on the legal protection of databases’, dg internal market and services working paper, 12 december 2005. the denning law journal 117 sought from stakeholders by 12 march 2006124 before recommendations being made on the four policy options mooted in it. the commission’s report was also preceded by an extensive study,125 commissioned from nautadutilh, of the extent of implementation, and of reaction to database protection. broadly, the analysis can be divided into its study of the legal effects of the directive’s measures, and of its economic effects. both analyses aim to evaluate whether the policy aims of the directive have been achieved. these are stated to be: (i) harmonisation of member states’ copyright rules; (ii) safeguarding the investment of database makers; and (iii) ensuring that legitimate users’ access to information is secured. economic the survey of the database industry showed no clear indication of a positive effect on competitiveness from the sui generis right. there were clear difficulties in securing relevant data, forcing the reporters to measure the industry by the number of databases produced. they made reference to the gale directory of databases (the gdd)126 and measured the number of changes of entry in the gdd.127 yet there is no necessary correlation between the database directive definition of a database with an entry in the gdd, and products such as newspapers, magazines and electronic programme guides which fall within the directive may not fall within the directory. so, while the gdd shows no growth in the european industry, the commission argued that these figures are potentially inaccurate in the face of new media for databases and that no firm conclusions as to the impact of the directive could be drawn. 124http://europa.eu.int/comm/internal_market/copyright/prot-databases/protdatabases_en.htm (last visited janaury 16th 2007). 125 the implementation and application of directive 96/9/ec on the legal protection of databases: http://ec.europa.eu/internal_market/copyright/docs/databases/evaluation_report_en.pd f (last accessed 16th january 2007). 126 this is the largest existing directory of databases and contains statistics indicating the growth of the global database industry since the 1970s. it is renewed twice annually, obtaining its information from producers. 127 the ggd shows that in 1998 the number of eu-based database entries was 3092, while in 2004 it was 3095. they do not note whether this included the 10 new members of the eu in 2004. in fact, just as the directive was enacted in most member states in 2001 the number of databases was 4085. consequently one conclusion that might be drawn is a drop in competitiveness after the directive came into force. but it must be noted that the gdd does not allow measurement of overall turnover, nor of the information supplied by databases. http://europa.eu.int/comm/internal_market/copyright/prot-databases/prot-databases_en.htm http://europa.eu.int/comm/internal_market/copyright/prot-databases/prot-databases_en.htm http://ec.europa.eu/internal_market/copyright/docs/databases/evaluation_report_en.pdf http://ec.europa.eu/internal_market/copyright/docs/databases/evaluation_report_en.pdf protecting databases 118 in the face of the perceptions128 of those within the industry of benefits gained from the directive, the report concluded that no change should be made now. this perception included the belief that the new right had helped europe to catch-up with the us database industry, yet the ratio of european/us database production was nearly 1:2 in 1996 but 1:3 in 2004. these conclusions are open to challenge. james boyle129 illustrates the lack of economic benefit from the right by pointing out that the us database industry thrives, despite the lack of protection for facts and unoriginal compilations of facts. in fact, the european companies reed elsevier and thomson publishing only entered the legal database market in the us after the feist case, but maintain high rates of return.130 he concludes that while the european industry did get a temporary boost131 after the directive, growth rates have returned to pre-directive levels, and that the industry faces the anticompetitive costs of database protection.132 nor do the cases concerning database protection indicate databases that would not otherwise have been created, as they concern information generated for and by businesses. what is clear is that policy cannot be safely formulated without economic evidence, and that none of any analytical value has yet been proffered. 128 the commission made a restricted online survey of 500 european companies and organisations involved in the database industry and received 101 replies. 75% of respondents were aware of the new right, of them 80% felt protected and 90% believed that protection a eu as opposed to national level was ‘important’; while 65% believed that legal protection is now higher than before harmonisation. 129 boyle j, ‘expanding the public domain’, remarks presented at the association of research libraries 146th membership meeting, 26 may 2005. arl bimonthly report, august 2005: http://www.arl.org/newsltr/241/pubdomain.html (last accessed january 16th 2007). 130 boyle cites figures provided by student jason gelman that thomson’s legal regulatory division had a profit margin of over 26% for the first quarter of 2004, and that reed elsevier’s profit margin for lexisnexis amounted to 22.8% in 2003: ‘a natural experiment’, ft.com, 22 november 2004: http://www.ft.com/cms/s/4cd4941e-3cab-11d9-bb7b-00000e2511c8.html (last visited january 16th 2007). 131 as illustrated by hugenholtz b, maurer s and onsrud h, ‘europe’s database experiment’ in science magazine, vol. 294 (26 october 2001), 789-790. cited in boyle j, ‘a natural experiment,’ ft.com, 22 november 2004: http://www.ft.com/cms/s/4cd4941e-3cab-11d9-bb7b-00000e2511c8.html (last visited january 16th 2007). 132 boyle j, ‘a natural experiment’ ft.com, 22 november 2004: http://www.ft.com/cms/s/4cd4941e-3cab-11d9-bb7b-00000e2511c8.html (last visited january 16th 2007). http://www.arl.org/newsltr/241/pubdomain.html http://www.ft.com/cms/s/4cd4941e-3cab-11d9-bb7b-00000e2511c8.html http://www.ft.com/cms/s/4cd4941e-3cab-11d9-bb7b-00000e2511c8.html http://www.ft.com/cms/s/4cd4941e-3cab-11d9-bb7b-00000e2511c8.html the denning law journal 119 legal the report acknowledges the ambiguities and lack of clarity in the undefined novel concepts applied to the database right by the directive, and the problems this has given courts, resulting in diverse interpretations and results in member states national courts. the report broaches the criticism that the directive “locks up” information, and takes the ecj rulings into consideration, asking whether the directive triggers unnecessary costs in securing access to information. the nautadutilh study also pointed out that the scientific community distinguish between the nature of commercial and scientific databases, the bulk of investment in the latter coming from the scientific investigation and obtaining of facts and data, and not in their subsequent “databasisation”, suggesting that the same principles cannot be applied to both. the commission’s conclusions the report acknowledges problems with the sui generis right from the outset. yet, despite its ambivalent findings, the ultimate conclusion is that repeal of the directive as a whole, or just of the sui generis provisions within it, would be both resisted by the database industry and reawaken the earlier debates over the standard of copyright originality. this seems a perverse conclusion in the light of evidence that the directive has not led to growth in the database industry, and the evident need the ecj felt to limit the scope of the new right. the value of surveying only the views of the database industry in an attempt to gauge whether the directive has served its avowed ends can be called into question as a one-sided exercise; particularly given the declared aim of securing a balance of protection and access. the views of the scientific, academic and research communities were not sought, neither are the views of library and consumer constituencies represented. nor do the ecj rulings broach all of the criticisms made of the right, while the time scales involved in securing judicial interpretation of the directive suggests this is not a real “fix”. the report’s analysis finishes with three conclusions. firstly, that the sui generis right is difficult to understand. despite the commission’s confidence in the ecj rulings as a means of clarification, they conclude: “it can be expected that database makers will devise legal strategies to get around the distinction drawn by the ecj judgements and that this might result in online databases increasingly being secured by systems of access control.” protecting databases 120 secondly, that the sui generis protection does come close to protecting data as property as is illustrated by the ecj’s distinction between creation and obtaining data. and they draw attention to the paradox that the us, having rejected the “sweat of the brow” approach to protection of compilations, has seen considerable growth in database production, while the introduction of the sui generis right has apparently had an opposite effect: “with respect to “non-original” databases, the assumption that more and more layers of ip protection means more innovation and growth appears not to hold up.” thirdly, the economic impact of sui generis right is unproven. what evidence there is suggests no benefit has been achieved, yet industry perceptions support a need for the right. consequently it must be asked whether the report’s statement: “while this endorsement133 of the sui generis right is somewhat at odds with the continued success of us publishing and database production that thrives without sui generis type protection, the attachment to the new right is a political reality that seems very true for europe….” is logical or can be supported. the commission appear to recognise this by seeking further consultation on four options: repealing the whole directive, withdrawing the sui generis right, amending the sui generis provisions, or maintaining the status quo before going on to take any action. consequently, the report can be viewed, at best, as merely an opener in continuing debate as to the fate of the sui generis database right, and one with flawed data and analysis. conclusion the combined effect of the new database right, and legal protection for digital rights management can be seen to have departed from the traditional balanced approach taken by intellectual property in general and copyright in particular. even if a public database owner could argue that the profits from the database would ultimately be employed for the state’s benefit and 133 by the industry responses to the online survey. the denning law journal 121 therefore serve an economic and utilitarian purpose, this cannot be said to benefit the global right to access to information.134 the danger lies in the wide scope of the database right; if all collections of works fit the definition the traditional balances served by copyright law can be bypassed; particularly if the limitations determined by the ecj can be bypassed by careful corporate structuring and outsourcing. so far the commission have not suggested removal of the right altogether, and their comment on this option appears to suggest a reluctance to do so. nor have the ecj produced either clarity of interpretation, or a route to access for information of significant social value. the results of the extended consultation have been briefly summarised on the eu’s europa website, but no hint of further action is given.135 the result is that neither the ecj, nor the commission have come any way towards meeting a need for access rights to compiled information. but there is another approach. it has been argued136 that to remove protection altogether might remove the incentive to create sole source information in the first place; although this is questionable in the light of the large american database industry, reliant, as it is, on other means of protection. nor would removal of the database right remove the combined effects of contractual and technological protection which have the same potential in relation to access. consequently another solution, if such access is a real need, must be found. it would seem that attention should shift from the question of the existence or absence of protection, leaving this issue to the directive and the courts, and turn to means of guaranteeing access as the price for the privilege of database protection. controls over database licensing are urgently needed. 134 corbett s, ‘a human rights perspective on the database debate,’ [2006] eipr 83. 135 of 55 responses received, 31 could be clearly identified as being from producers, 13 from academics and 8 from users. only 8 favoured option 1, and 3 option 2. opinion was equally divided between amendment of the right (option 3), and maintaining the status quo (option 4), with 26 ‘votes’ apiece: http://ec.europa.eu/internal_market/copyright/prot-databases/prot-databases_en.htm (last visited january 16th 2007). 136 hasan a, ‘sweating in europe: the european database directive’, (2005) 9 comp. l rev & tech j 479. http://ec.europa.eu/internal_market/copyright/prot-databases/prot-databases_en.htm microsoft word 23 cs 3 egede v3 _4_.doc 202 the denning law journal 2011 vol 23 pp 202-226 case commentary shrouded gender and reproductive issues in child welfare and protection proceedings a re-appraisal of the haringey london borough council v c (a child), e and another hephzibah egede* introduction this commentary examines the case of haringey london borough council v c (a child), e and another1 (referred subsequently in this article as the haringey lbc case). the case focused on child protection issues under the children act 1989 (the 1989 act) arising from a uk charity’s claims that it could provide infertile couples with miracle babies through supernatural means. while the case focused on child protection issues, the high court also found that that mrs e had been seriously assaulted during a stage-managed childbirth in kenya. despite this finding, no further judicial or other state action was taken to address these issues whereas the high court’s concurrent findings on child trafficking led to trans-boundary state action against the perpetrators of this offence. this commentary considers why the court’s finding on the serious assault against mrs e was not given the same attention as its finding on child trafficking. it explores whether the assault against mrs e could have been characterised in the finding by the high court as gender based violence (gbv) and what difference such findings would have made to the protection of involuntarily childless women like mrs e accordingly, the commentary deliberates on whether states have a responsibility to investigate and punish such acts under the international human rights instruments that safeguard the rights of women. the article also considers against the backdrop of the * llb (hons) solicitor, england and wales (non-practising), barrister and solicitor (nigeria) lecturer in law, university of buckingham. 1 [2004] ewhc 2580 (fam); [2005] 2flr 47; [2005] fam law 351; the times, november 27, 2004; official transcript; fam div. references to this decision are obtained from the official transcript. the denning law journal 203 libertarian harm principle as enunciated by mill, the question on whether there should be state intervention in cases where alleged acts of gender based violence and reproductive harm arise from a woman’s autonomous decision to seek treatment that puts her in harm’s way. case background infertility is a very traumatic experience for involuntary childless couples regardless of their race, nationality or social status. however, it is even more of an ordeal when social identity and recognition is tied up with the ability to procreate.2 this applies particularly to pro-natal regions such as sub-saharan africa.3 the social consequences of infertility in sub-saharan africa, particularly for infertile women, have been examined in academic literature4 and they include marital instability, domestic violence, loss of property and inheritance rights, victimisation and abuse from extended family members, social exclusion, denial of cultural rites (such as proper burial rights) and the loss of social security and support.5 these all affect the quality of life of infertile women and may also adversely affect their mental health.6 the deleterious social consequences of infertility have led many infertile women to explore diverse forms of treatment or methods to achieve pregnancy. some of these methods are outside the realm of conventional medical health care and include complementary medicine7 and faith based solutions.8 2 g pennings “ethical issues of infertility treatment in developing countries” (2008) 1 human reproduction 15 at 16. 3 see generally m hollos “motherhood in sub-saharan africa: the social consequences of infertility in an urban population in northern tanzania” (2008) 10(2) culture, health and sexuality 159; m hollos, u larsen, o obono, b whitehouse “when reproduction is not a choice: infertility in subsaharan africa” (2007) union for african population studies arusha, tanzania. 4 above n 2, at 16. see also a daar, z merali “infertility and social suffering: the case of art in developing countries” in e vayena, p rowe, p griffin (eds) current practices and controversies in assisted reproduction (geneva, switzerland: 2002 who) 15-21. 5 ibid. 6 s dyer, n abrahams, n mokoena “psychological distress among women suffering from couple infertility in south africa: a quantitative assessment” (2005) 20 human reproduction 1938-1943. 7 e mariano et al “healers, nurses, obstetrics-gynaecologists dealing with women in the quest to become pregnant in southern mozambique” (2010) f, v & v in ob gyn, monograph 43 at 44 and 45. 8 in one study, it was shown that the treatment outlet for 41.4% of the respondents was faith based treatment. see t ola, f aladekomo, b oludare “determinants of the case commentary 204 the events leading to the facts that formed the basis of the haringey lbc case supports the view that infertility may also be an agonizing experience for women in african diasporas in the west. some of these women may also seek the recourse of non-conventional medical methods in an attempt to achieve pregnancy.9 fascinatingly, while the social consequences of infertility could be argued as a primary catalyst that triggered the events that created the factual situation in the haringey lbc decision, little attention if at all was given to this point despite the court’s acknowledgement that in arriving at its decision that it needed to take due cognisance of “the wide context of social, emotional, ethical and moral factors surrounding the case”.10 as stated above, events preceding the judicial decision in haringey lbc case were extensively reported in the media.11 they relate to the claims of the gilbert deya ministry (a uk based charity) that it could help infertile couples to achieve miraculous pregnancies and live births through divinely inspired power. while it is clear that other faith groups also subscribe to the reality of miraculous events,12 the difficulty with the claims of this specific group and its adherents had to do with the fact that the ‘miraculous pregnancies’ did not fall within the normal gestation period or conform to other recognised indicators of pregnancy.13 further, it was asserted that since the pregnancies choice of treatment outlets for infertility in south west nigeria” (2008) 33(2) rawal medical journal (periodical of the pakistan medical association) 193-196. 9 v yebei “unmet needs, beliefs and treatment-seeking for infertility among migrant ghanaian women in the netherlands” (2000) 8(16) reproductive health matters 134-141 also documents similar experiences of women of african descent in the netherlands. 10 above n 1, court judgment at paragraph 10. 11 j waite “gilbert deya: miracle babies” bbc radio 4: face the facts transcript august 13 2004; bbc uk “pregnant by jesus?” bbc august 13 2004; s bogan “miracle worker or baby thief?” the times september 3, 2004; j este “the preacher, the ‘miracle’ births and the lost children” the independent september 1, 2004; s left “the kenyan connection” the guardian november 12, 2004; s boggan “gilbert deya & missing babies: god knows” the guardian june 6, 2006. a detailed account of media coverage of the gilbert deya ministry can be obtained from religion news blogs archive at http://www.religionnewsblog.com/ (last accessed august 1, 2011). 12 for a critique discussing the historical basis for belief in miracles, see j pawlikowski “the history of thinking about miracles in the west” (2007) 100 (2) southern medical journal 1229-1235. 13 in two instances of the alleged miracle pregnancy, the gestation period for one was over 12 months while the other was not more than 27 days. see court judgment n 1 above at paragraphs 17 and 56. the denning law journal 205 were miracles, they could not be detected by conventional medical techniques.14 there were further press reports that the women who had allegedly conceived through this process travelled to kenya (the birth place of gilbert deya) to ‘give birth’ to miraculous children when the hospitals in the uk did not support their claims that they were pregnant.15 this fact was also adduced in evidence in the haringey lbc case.16 press media17 also focused on the issue of whether the alleged ‘miracle children’ were actually victims of child trafficking. the high court in the haringey lbc case found this to be the position in its consequential finding18 and this triggered criminal law proceedings in kenya19 as well an extradition process in the uk to enable the key protagonist, gilbert deya face charges of child trafficking and abduction in kenya. the high court’s treatment of the case facts and judgment the specific set of facts that formed the basis of the decision in haringey lbc had to with child “c” who had purportedly been conceived by mrs e (a member of the gilbert deya ministry). she claimed that she had given birth to c (a miracle child) in kenya and had brought him back to the united kingdom to live with her and her husband (mr e). based on her claim, child protection referrals were made to the local authority which attended the couple’s home with the police on october 28, 2003 and questioned them about c. it was resolved that c could not be removed from the couple’s home until his dna results were received. these results were received in writing on november 13, 2003 and the local authority applied to the courts without notice to mr and mrs e for an emergency protection order and for permission to refuse further contact between the couple and c. the court granted both orders which led to the forced removal of c on november 15, 2003. upon 14 above n 1 court judgment at paragraph 36. 15 above n 11. see also d okwatch “plot now thickens as ‘miracle’ saga points at scandal” the east african standard august 2, 2004. 16 above n 1, court judgment at paragraphs 33 to 40. 17 above n 11. 18 above n 1, court judgment at paragraph 93. 19 see the case of rep v miriam nyeko & 2 others 3110/04. convictions were obtained against mary deya (wife of gilbert deya), rose keserem, a church worker and miriam nyeko. mary deya was re-arraigned on further charges of child theft and is currently serving a fresh custodial sentence in kenya. see “deya’s wife gets 3 years for baby theft” kenya broadcasting corporation january 28, 2011. case commentary 206 further application to the court, the couple were given permission by the court under the 1989 act to apply for a residence order.20 the haringey lbc case primarily focused on the legal point on whether there were sufficient findings of fact to establish that the threshold under section 3121 of the 1989 act had been satisfied to warrant state intervention by way of a care order as opposed to mr and mrs e’s application for a residence order under the same act. the high court, with regard to the facts before it, held that the threshold under section 31 had been fully satisfied. based on the strength of the evidence, it refused to grant the residence order sought for by mr and mrs e and issued an interim care order under the 1989 act and gave directions in private to ensure that c’s best interests were safeguarded whilst a permanent family, preferably his birth family could be found.22 it did this on the basis of the dna evidence that showed that the child shared no biological links with either mr e or mrs e23 the refusal to grant the residence order sought by mr and mrs e was also based on the ground of securing and protecting the child’s identity. as mr and mrs e were both not prepared to admit that c was not a miracle child and that he had been fraudulently removed from his real parents. the court held that c may experience difficulties in the future if he continued to live under the “false impression that he was a miracle child (with carers of the same view) when in fact this was not the case”.24 although the high court reached a decision that denied mr and mrs e’s application for a residence order for c on the strength of the factual findings, it did find as a matter of law that it was not only c’s rights that should be protected but that the couple also enjoyed convention rights under the european convention for the protection of human rights and fundamental freedoms (echr).25 these rights included the right of a fair trial under article 6, the right to respect for a family life under article 8 together with the enjoyment of these rights without discrimination inter alia of their religion.26 the court criticised the child protection process and the early stages of the decision making of the case for not demonstrating adequate consideration of these rights. 27 20 above n 1, see court judgment for full facts. 21 this section deals with care orders sought by local authorities in relation to children suffering from harm or at risk of significant harm. 22 above n 1, paragraphs 83 to 92 of the court judgment. 23 ibid at paragraphs 25, 41, 73 and 86 of the court judgment. 24 ibid at paragraph 83 of the court judgment. 25 rome 4 xi 1950 given legal effect in the united kingdom by the human rights act 1998 cap 42. 26 above n 1, court judgment at paragraph 30. 27 ibid paragraphs 25-26. the denning law journal 207 the high court stated that in securing these rights that it had taken steps to treat mr and mrs e “as significant adults in c’s life who for a short time enjoyed with c the existence of de facto family life”.28 in reaching its decision that the threshold under section 31 had been satisfied and its refusal to grant the residence order, the high court held that it had taken into account the sensitive ethical issues involved in the case and applied the reasoning in several decisions29 which held that best interests are not only defined by medical or scientific evidence alone, but by the wider context of social, emotional, ethical and moral factors.30 one of the ways that the court addressed the wider social context of the case was to direct that a “culturally appropriate assessment of the context of the case”31 be undertaken. this assessment was undertaken by a consultant child and adolescent psychiatrist and played a key role in the court’s denial.32 notwithstanding that mrs e declined to be assessed by an adult psychiatrist,33 there is nothing to show that this “culturally appropriate assessment” (which was undertaken not only to safeguard “c” rights but also to promote the convention rights of mr and mrs e) took into account the socio-cultural consequences of involuntarily childlessness upon women like mrs e there is also no evidence to show that it considered the impact that the social consequences of infertility may have on the treatment seeking behaviour of mrs e and why this had led her to the gilbert deya’s ministry and where she had been cruelly deceived into believing that she had given birth to a “miracle child.”34 whereas it may be argued that the primary issue that the court had to deal was the s 31 threshold requirement for a care order to be issued, it is important to note that the court also had to take into account the convention rights of mr and mrs e in deciding whether to grant their application for a residence order. surely in considering these rights, which included the right to family life as set out in article 8, the court could have done more through its directions for “a culturally appropriate assessment of the wider context of the case” to 28 ibid, paragraph 29. 29 re a (male sterilisation) [2000], 1 flr 549 at page 555; re b [2004] 2 flr 263 at paragraph 26 and re u (serious injury: burden of proof. see n 1 above, paragraph 10 of the court judgment. 30 ibid. 31 ibid at paragraph 28. 32 ibid. 33 while there is nothing in the court decision to explain why mrs e declined to be assessed, this may relate to the reservations that people from ethnic minority backgrounds have toward mental health providers. this point will be explored in more detail in the subsequent sections of this article. 34 above n 1, court judgment at paragraphs 2 and 75. case commentary 208 ascertain why an involuntarily childless couple like mr and mrs e would resort to the steps they took in their quest to have a child? this article queries whether the cultural assessment made by the child psychiatrist would have been adequate to fully decipher this issue. to his credit, dr o, the child psychiatrist, did identify some positives beneficial to mr and mrs e’s application for a residence order,35 but his assessment of these issues would have been better supported by an independent assessment undertaken not necessarily by an adult psychiatrist which appears to have been what the court considered as the next step of further assessment,36 but by an expert competent and knowledgeable in matters relating to the socio-cultural impact of infertility on people of african descent and how this might affect their treatment seeking behaviour.37 before proceeding further on this point and the other issues to be explored in this article, it is necessary to provide some perspective on why the haringey lbc case is being re-appraised seven years after it was decided by the high court. admittedly, this is a high court case, and while it has been described as one of “the longest child custody cases in british legal history,”38 it is worth noting that the judgment39 is yet to be the subject of further appeal. further since the focus of the judgment centred primarily on the s 31 threshold issue, it is understandable that its contextual discourse of other issues may not be as engaged as an appellate decision (on the same facts) from either the court of appeal or supreme court. however, this commentary argues that the gender and reproductive issues contained in this case are of such significant public interest which deserves not only academic investigation, but appropriate consideration by the state and other stakeholders concerned with the protection and safeguard of the rights of women. 35 above n 1, court judgment at paragraph 87. 36 above n 1, court judgment at paragraphs 63 and 87. 37 see generally works that explore the relevance of considering cultural implications in judicial hearings. see for example, a rentein the cultural defence (new york: oxford university press, 2004) pp 416. see also d deas-nesmith and s mcleodbryant “psychiatric deinstitutionalisation and its cultural insensitivity: consequences and recommendations for the future” (1992) 84(12) journal of the national medical association, at 1036, which emphasises the need for cultural awareness of patients’ needs in “programme planning and implementation” on mental health issues. 38 d taylor, h muir “couple make a new attempt to win back ‘miracle’ boy” the guardian september 15, 2007. 39 to the best of this writer’s knowledge. the denning law journal 209 commentary why re-appraise the lbc haringey decision seven years on? while as identified above, the haringey lbc case dealt with the s 31 threshold requirement for a care order under the 1989 act, there are several reasons why this case can be considered as a significant one. first it has been cited in a spectrum of cases dealing with child protection issues.40 second, it also made a significant consequential finding on state responsibility relating to child trafficking. 41 third, it has been showcased in the fourth report of session of the house of commons constitutional affairs committee42 as playing a fundamental role in the promotion of “a greater public understanding of the work of the family courts while at the same time maintaining the protection of the private lives of litigants.” 43 beyond these key considerations, this article argues that the haringey lbc case encapsulates other important, but ignored issues relating to reproductive harm and gender based violence suffered by mrs e as an involuntarily childless woman. of particular interest to this article is the issue on whether the case could have served as a catalyst to expedite state action on gender violence just as it did through its consequential finding on child trafficking. this is important considering that the high court in the haringey lbc case had held that mrs e had been seriously assaulted at the point of child birth, after having been deceived into thinking that she had achieved a live birth in the clinic in kenya.44 however, unlike the response given to its finding on child trafficking, there is very limited evidence to show that appropriate state action was taken to address the finding of the serious assault 40 see haringey lbc v c (a child) [2006] ewhc 1620 (fam); 2007 1 flr 1035; [2006] fam law 1016; [2006] 103 (34) lsg 32. this is the follow up case to the lbc haringey case under review in this article. the follow up case considered whether adoption was the best way to secure the security and identity of c, a child abducted from his parents through international child trafficking. the case was also cited in northumberland cc v z [2009] ewhc 498 (fam); [2009] 2 flr 696; [2010] 1 fcr 494 and in a (local authority: religious upbringing), re [2010] ewhc 2503 (fam); [2011] ptsr 6032; [2011] 1 flr, 615; [2011] fam law 9; fam div. 41 above n 1, court judgment at paragraph 93. 42 fourth report of session 2004-05 1 hc-116-1 at 39. 43 ibid at 39. 44 above n 1, court judgment at paragraph 75. case commentary 210 suffered by mrs e and other women that had been deceived into believing that they had given birth to “miraculous babies.” 45 while this article subscribes wholeheartedly to the continuing state effort to prevent and punish the acts of child trafficking identified by the high court’s consequential findings and press coverage, it questions why relevant state organs both in the united kingdom and kenya failed to investigate and punish acts of serious assault and harm suffered by mrs e and other women46 in this debacle? the article therefore considers the extent to which a state has responsibility to prevent and punish gender based violence and other harm against women. related to this, the paper also considers whether there is a duty to protect vulnerable infertile women like mrs e whose reproductive treatment seeking behaviour exposes them to gender violence or other reproductive harm as factually described in the haringey lbc proceedings. this paper argues that it is time to give some recognition to these significant but shrouded issues contained in the haringey lbc case. this is important when one considers that seven years after the court’s decision, the wider events that led to that case are still have a reverberating effect in the united kingdom and kenya. for example, fresh convictions on child trafficking were recently obtained this year against mary deya in kenya47 and there have also been recent calls in the united kingdom that gilbert deya should be extradited to kenya as quickly as possible to ensure that “justice is delivered for these young children who should not have been taken from their natural parents”.48 yet the on-going state effort to combat illegal activity relating to child trafficking appears not to have taken into cognisance the other illegal activity relating to gender based violence and other harm to women. the re-appraisal of the case therefore seeks to highlight the failure of the state to act on behalf of involuntarily childless women like mrs e and to identify the steps that can be taken to right this wrong. 45 primary and secondary infertility are both considered since unlike mrs e in the london borough case, miriam nyeko could be said to be suffering from secondary infertility having been reported to have given birth to children before. 46 see n 19 above. 47 ibid. 48 see remarks accredited to the tottenham mp david lammy in j douglas “‘miracle babies’ pastor still in uk despite extradition” bbc news thursday, 1 april 2010 see also recent press coverage on the current status of the extradition process. j douglas “‘miracle babies’ pastor to be extradited to kenya” you and yours bbc radio 4 september 21, 2011. the denning law journal 211 missed opportunities to address gender violence and other harm against involuntarily childless women it is not in dispute that the haringey lbc case did acknowledge that mrs e had suffered some serious assault at the point of delivery,49 however as highlighted above, no further state action appears to have been taken in this regard. this may be to do with the fact that the cause of action before the court had nothing to do with gender violence and therefore it was right for the court to confine itself to the issues in dispute. however, having found that it (the high court) had a duty to secure the convention rights of not only the child but mrs e, could it not be argued that there was some scope for the court to consider whether the assault committed against mrs e at the point of birth could be addressed by way of her convention rights? perhaps on this point, the high court would have faced considerable jurisdictional constraints had it adopted this approach since the act of assault in question, having been committed in kenya, would be deemed to have fallen outside the remit of the framework of the convention rights.50 this would suggest that the high court was faced with a situation that left it very little room to manoeuvre or to provide further remedy for mrs e (particularly with regard to the gender based violence (gbv) question) other than what it did by recognising her and mr e as significant adults in c’s life.51 yet this does not mean that there has not been a missed opportunity for state action on the court’s findings on a serious assault having been committed against mrs e at the point of the supposed child birth delivery. if as highlighted in earlier sections, the high court’s consequential finding on international child trafficking helped to facilitate “national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form”52 under the united nations convention on the rights of the child 1989,53 this commentary repeatedly asks the question, why similar measures were not adopted to address the harm of gender violence under relevant international human rights instruments to which the uk and kenya are state parties or have endorsed in the case of nonbinding un resolutions relating to gender violence enumerated herewith. 49 above n 1, at paragraph 75 of the court judgment. 50 the relevant regional human rights instrument that would apply in africa is not the echr but the african (banjul) charter on human and peoples' rights 1981. 51 within the context of the proceedings of determining the section 31 threshold, the court in paragraph 32 of its judgment seemed to suggest that in relation to mr and mrs e’s rights, it could do no more than rectify the earlier “defaults... and arbitrary interference” as identified in paragraphs 25 and 26 of the court judgment. 52 above n 1, the court judgment at paragraph 93. 53 united nations, treaty series, vol 1577, p 3. case commentary 212 these instruments include the convention on the elimination of all forms of discrimination against women (cedaw) 197954 and its optional protocol 1999,55 declaration on the elimination of violence against women (devaw) 199356 and the un general assembly resolutions on the intensification of efforts to eliminate all forms of violence against women 200957 and 2010 respectively.58 discussions on the relevance of these instruments would be further developed in subsequent sections of this commentary. an examination of the judicial proceedings59 relating to the gilbert deya ministry would suggest that far from taking steps to address this specie of harm, state action particularly in relation to the child abduction and theft cases in kenya has adopted a rather unsympathetic attitude to the female victims in this case. take for example, the case of rep v miriam nyeko60 and others where the court held that the claims of miraculous births made by miriam nyeko and her co-accused61 deserve no mercy.62 while it is not the intention of this commentary to condone heinous crimes as child trafficking, child abduction and theft, it does question whether the custodial sentence given to nyeko in particular was an appropriate sanction. this is in light of evidence that suggests that she had been similarly deceived like mrs e in the haringey lbc case into believing that she had achieved a live pregnancy and had also been subjected to a similar type of assault in a sham clinic in kenya where her alleged child birth delivery took place.63 although this commentary does not dispute that there may be some basis to argue that nyeko was rightly tried for child theft since the court did 54 cedaw was adopted by the general assembly of the united nations on 18 december 1979 and came into force in september 1981. the uk ratified this treaty in april 1986 while kenya ratified same in march 1984. while kenya ratified this instrument several years ago, it has not been fully implemented into its domestic legislative framework. however see the concluding observations of the committee on the elimination of discrimination against women, cedaw/c/ken/co/7 (cedaw, 2011 which highlights the current efforts under the new constitution to domesticate cedaw as well as to provide for a bill of rights for women. 55 adopted october 6 1999 and came into force on 22 december 2000. 56 resolution 48/104 of 20 december 1993. 57 resolution 63/1555 adopted by the united nations on january 30, 2009. 58 resolution a/res/65/187 adopted by the general assembly of the united nations on december 21, 2010. 59 this includes the proceedings in kenya, see n 19 above. 60 cited above n 19. 61 mary deya and rose kiserem 62 statement accredited to the presiding magistrate teresia ngugi. see bbc report, kenya “miracle baby wife jailed” bbc news, 31 may 2007. 63 see bogan “miracle worker or thief”, above n 11. the denning law journal 213 find that she had harboured a stolen child, it is doubtful whether she had the requisite criminal intent or motive required in law to convict her of having knowingly and actively participated in child abduction or child trafficking. for instance there is video evidence purporting to show nyeko in child birth recorded scenes. in these scenes, she had been “heavily sedated with what appears to be pethidine, a form of synthetic morphine used in child deliveries.”64 fundamental questions can therefore be raised as to whether she was aware that she had not experienced a child birth, but had been cruelly deceived into thinking she had. further, nyeko just like mrs e in the haringey lbc case experienced what she assumed to be pregnancy symptoms, including distended abdomens and amenorrhea.65 it was suggested in the haringey lbc case that this was symptomatic of pseudocyesis (phantom pregnancy).66 this commentary queries why these critical facts were not taken into consideration in deciding whether nyeko had the necessary mens rea to commit the offences that she had been accused of. further, it questions why these issues were not considered as mitigating factors in the sentencing process and why the court did not consider imposing other sanctions on her instead of a custodial sentence. it is therefore puzzling why there has been very limited effort by the states concerned to address the significant harm suffered by nyeko, mrs e and other women in the ‘miracle babies’ debacle? in particular, it will appear that the kenyan state, as the applicable jurisdiction where the acts of assault occurred, failed to consider in past and present criminal proceedings relating to the miracle babies whether these acts could be characterised as gender based violence and whether it has a responsibility to punish them. the following section of this commentary will therefore reflect on whether state failure or unwillingness to act could be explained on the basis of the argument that unlike child trafficking that there is no binding obligation under international law requiring states to combat gender based violence (gbv). this is particularly relevant when the violence has arisen from a woman’s autonomous choice to seek treatment that puts her in harm’s way as seen in both the cases of mrs e and miriam nyeko. 64 ibid. 65 see the account of her husband reported in bogan, ibid. he explained that “miriam said she thought she was pregnant — her legs and ankles swelled, she was getting back pains and her stomach began to grow.” mrs e and other women also experienced similar occurrences. 66 see above n 1 court judgment at para 63. case commentary 214 articulating state responsibility for righting gender based violence under international human rights law the focus of this section is to consider whether there is state responsibility under international human rights law to prevent and punish acts of gender based violence (gbv). several international human rights instruments address gender based violence (gbv), but as identified above the instruments most closely connected to the type of harmful acts examined in this article are cedaw67 and devaw68 and recent un resolutions on the intensification of efforts to eliminate all forms of violence against women 200969 and 2010 respectively.70 violence against women is not specifically mentioned in the text of cedaw neither is a definition provided in this convention. however, the expert body which monitors the compliance of the cedaw states in its general recommendation 19 that: “…discrimination includes gender-based violence, that is violence that is directed against a woman because she is a woman or that affects women disproportionately. it includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty. gender based violence may breach specific provisions of the convention, regardless of whether those provisions expressly mention violence.”71 article 1 of devaw also defines violence against women as: “for the purposes of this declaration, the term "violence against women" means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.”72 67 see above n 54. 68 see above n 56. 69 see above n57. 70 see above n 58. 71 see paragraph 6 of general recommendation number 19 (1992) (eleventh session, 1992). 72 see above n 56. the denning law journal 215 likewise, the 2009 un resolution on the intensification of efforts to eliminate all forms of violence against women defines violence against women73 in the same way as the devaw definition. the facts leading to the haringey lbc decision and other criminal cases in kenya, including the case of rep v miriam nyeko establish that it was women (and not their male partners) that were subjected to the acts of assault which occurred during the staged managed child birth deliveries. it therefore can be argued that the assaults that occurred are acts of gender based violence (gbv) as they were directed at the women on the basis of their gender. it can further be argued that unlike their spouses, mrs e and miriam nyeko were more disproportionately affected by the assaults committed to them during the so call child birth deliveries.74 while cedaw does not expressly create a basis for state responsibility on gender related violence, the general recommendation 19 does state that the full implementation of the convention required states to take positive measures to eliminate all forms of violence against women.75 likewise, article 4 of devaw76 requires states to pursue by all appropriate means and without delay a policy of eliminating violence against women. article 4 (c) goes further to require that state policy on eliminating violence against women must be based on the principle of due diligence. it requires states to: exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the state or by private persons.77 state responsibility on the basis of due diligence is also emphasised in the 2009 and 2010 un resolutions cited above.78 there is of course a debate79 on whether these international instruments which can be characterised as soft law instruments80 can be said to impose 73 see article 1, above n 57. 74 again it is women like miriam nyeko who have been convicted of child abduction and not their spouses. miriam nyeko’s husband claims that he was powerless to help his wife out of her predicament. see bogan’s report, see above n 11. likewise in paragraph 41 of the court judgment, above n 1, mr e stated that he had remained at all times in the united kingdom when his wife travelled to kenya to “give birth to the miracle babies.” 75 see article 4 of the general recommendation, above n 71. 76 above n 56. 77 ibid. 78 see articles 10 and 11 of res/63/155 of 2009, above n 57 above, and article 9 of res/65/187 of 2010, above n 58. case commentary 216 responsibility upon states to eliminate all forms of violence against women? this continuing debate may shed further light on why, unlike the findings on child trafficking, not much appears to have been done by the united kingdom and kenya to address the findings that mrs e81 had experienced some form of gender violence during her alleged child birth delivery. the academic literature82 focuses on the potential that the concept of due diligence has in providing the basis for state action in combating gender violence against women. it is argued that the role of due diligence in creating state responsibility to prevent and punish acts of gender violence is premised on leading cases such as velasquez rodriguez v honduras83 which held that state responsibility “could arise not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it.”84 authoritative reports from the united nations, including those issued by the special rapporteurs on violence against women have also been touted as another ground for arguing that positive state obligations based on due diligence to prevent and punish gender based violence have emerged under international law.85 it is argued that states should be held accountable if they 79 see generally works like c romany “state responsibility goes private: a feminist critique of the public/private distinction in international human rights law” in r cook (ed) human rights of women: national and international perspectives (philadelphia: university of pennsylvania press, 1994) 634; d shelton “private violence, public wrongs, and the responsibility of states” (1989-90) 13(1) fordham international law journal 21; r copelon “international human rights dimensions of intimate violence: another strand in the dialectic of feminist lawmaking” (2003) 11 american university journal gender, social. policy & law 865, and c benninger budel (ed) due diligence and its application to protect women from violence (leiden, martinus nijhoff, 2008). 80 see generally feminist theories on international law and human rights in a edwards “violence against women under international human rights law” (cambridge: cambridge university press, 2011) chapter 2. 81 see also the case of miriam nyeko, above n 19. 82 see shelton n 79 above at pp 21-23; see also y erturk “the due diligence standard: what does it entail for women’s rights?” in c benninger-budel (ed) due diligence and its application to protect women from violence, above n 79; see also l hasselbacher “state obligations regarding domestic violence: the european court of human rights, due diligence, and international legal minimums of protection” (2010) 8(2) north western journal of international human rights 190 at 194. 83 1988 inter-am cthr (ser c) no 4, (july 29, 1988) para 172. 84 ibid, at p 172. 85 see for example c bettinger-lopez “jessica gonzales v united states: an emerging model for domestic violence and human rights advocacy in the united states” (2008) 21 harvard human rights journal at 183, where reference is made to the report of the secretary general on the in-depth study on all forms of violence the denning law journal 217 do not exercise due diligence in enforcing laws against crimes of violence against women. for example, one of the special rapporteurs, yakin erturk asserts that there is “a rule of customary international law that obliges states to prevent and respond to acts of violence against women with due diligence.” 86 some commentators87 have expressed reservation on whether a rule of customary international law has crystallised on state responsibility for gender based violence, especially in relation to systemic intimate violence (or domestic violence) as erturk and some academic commentators have led us to believe.88 notwithstanding the academic debate on whether there is a clear rule of customary international law on state responsibility for gender based violence (gbv), it is significant that recent case law from the european court of human rights (echr)89 and as well as the inter-american commission on human rights 90 have affirmed the due diligence standard as a ground to impose responsibility upon states to address gender based violence (gbv) when it occurs. this had led some to arguments that even if there is no clear crystallisation of a customary rule of international law on state responsibility against women, delivered to the general assembly, un doc a/16/122/add 1 (july 6, 2006). see also hasselbacher’s commentary on this, above n 82 at 194. 86 un econ & soc council, comm’n on human rights, special rapporteur on violence against women, its causes and consequences, integration of the human rights of women and the gender perspective: violence against women: the due diligence standard as a tool for the elimination of violence against women 29 (jan 20, 2006) (prepared by yakin ertürk in accordance with commission on human rights resolution 2005/41) [hereinafter 2006 due diligence report]; see also her academic work based on this report in y erturk erturk “the due diligence standard: what does it entail for women’s rights?” in c benninger-budel (ed) due diligence and its application to protect women from violence, above n 79. 87 b meyerfield, g gulik, s sonya “the principles of state responsibility and systemic intimate violence” summary of the international law discussion group meeting (chatham house, september 2010) 1-11. 88 the debate on whether there is positive state obligation to combat gender violence on the basis of the principle of due diligence has been focused quite predominantly on domestic violence which is seen as an area where state action has been lacking potentially on the grounds of whether there is a public/private divide. see shelton n 79 above and y erturk “the due diligence standard: what does it entail for women’s rights?” in c benninger-budel (ed) due diligence and its application to protect women from violence, above n 79 at pp 32-3. 89 see for example osman v united kingdom 1998 viii eur cthr 3124, bevacqua v bulgaria, app no 71127/01, opus v turkey app no 33401/02, eur cthr (2009). for academic commentary on these cases, see hasselbacher, n 82 above. 90 jessica gonzales v united states petition no 1490-05, inter-am chr, report no. 52/07, oea/ser l/v/ii 128, doc 19 (2007). for academic commentary of the case, see bettinger lopez, n 85 above. case commentary 218 for gender based violence (gbv) due to the lack of the requisite state practice (opinio juris), there is enough evidence to show that the rule is emerging in international law and that states, particularly in the european union must take cognisance of the position set out in the authoritative un reports as well as decisions that have emerged from the echr.91 this appears to be the position adopted by the recent council of europe convention92 on preventing and combating violence against women and domestic violence which in its preamble takes into cognisance the jurisprudence of the echr. it also affirms in article 5 positive state obligations to act against gender based violence (gbv) on the principle of due diligence. article 5(2) of the convention states that: parties shall take the necessary legislative and other measures to exercise due diligence to prevent, investigate, punish and provide reparation for acts of violence covered by the scope of this convention that are perpetrated by non-state actors. it would appear that the recent council of europe convention albeit at the regional level does lend some support for the emerging crystallisation of state obligation to prevent, combat and punish gender based violence (gbv). 93 likewise, article 4 of the protocol to the african charter on human and peoples’ rights of women in africa94 also sets out state duties to prohibit, prevent, punish and eradicate all forms of violence against women. these regional european and african instruments are significant to this discussion since kenya and the united kingdom which are the two states arguably that have state responsibility for any gender based violence (gbv) arising from the miracle baby saga, are situated within these regions. but even if the situation remains inconclusive on whether there is a universally accepted customary international law principle that imposes state responsibility for gender based violence (gbv), some have argued that the wrongs relating to gender based violence (gbv) are intertwined with other binding human rights obligations such as the prohibition of torture, inhumane and degrading treatment and violations against the right of life. 95 it is 91 see hasselbacher, above n 85 at 198 , 201 and 202.. 92 [instabul 11 v 2011] adopted on april 7, 2011. 93 see b meyerfield, g gulik, s sonya, above n 87 at 8, 10 and 11. 94 adopted by the second ordinary session of the assembly of the union, maputo, 11 july 2003. 95 see integration of the human rights of women and the gender perspective: violence against women. report of the special rapporteur on violence against women, its causes and consequences, ms radhika coomaraswamy, in accordance with the commission on human rights resolution 1997/44, e/cn 4/1999/68/add 4, the denning law journal 219 therefore argued that state responsibility on these issues can be used in certain cases to impose on states the duty to prevent and to punish gender violence. 96 arguably, the threshold to equate an act of gender based violence to being synonymous with these established rights will be high and will be judged on the measure of its severity and the context in which it occurred.97 further, in arguing for state responsibility for gender based violence (gbv) there is also academic debate on whether the public/private dichotomy discourse is still tenable?98 while not dwelling too much on this argument for state responsibility, it is noteworthy that even if there is a ground to maintain the public/private dichotomy argument in relation to domestic violence, this argument would not apply to the cases under review in this article. this is because the gender based violence (gbv) experienced by both mrs e and miriam nyeko did not take place in a home, but in a hospital (albeit a sham clinic) and therefore cannot be considered as being private conduct or within a private sphere that is outside the jurisdiction of public policy or state intervention. while is it true that the relevant authorities in kenya did close down the clinics where the alleged miracle births were supposed to have taken place, the grounds for the closure had more to do with the fact that the clinics had not been registered with the ministry of health99 rather than regarding any clear concerns about the acts of gender based violence (gbv) or other potential reproductive harm perpetrated against female patients. this again is illustrative of state inaction or the failure to protect women from activities that could result in violence or harm against them. moreover, it will also appear that the closure of these clinics did not arise from the state’s recognition that violence against women could result within the context of poor provisioning of reproductive health care services and the need to enforce its core obligations to provide safe health facilities for women.100 some reflection on this issue shall be taken up in the next section of this commentary which considers the extent to which the state should protect involuntarily childless women such as mrs e in the haringey lbc case from 21 january 1999, paragraph 8. see also a vesa “international and regional standards for protecting victims of domestic violence” (2004) 12:2 journal of gender, social policy and the law 338. 96 ibid. 97 see b meyerfield , g gulik , s sonya, n 87 above at 5. 98 y erturk erturk “the due diligence standard: what does it entail for women’s rights?” in c benninger-budel (ed) due diligence and its application to protect women from violence, above n 79 at pp 32 to 33. 99 see n 1 above, court judgment at paragraph 40. see also blair d “'miracle parents' face abduction case” the telegraph september 6, 2004. 100 see coomaraswamy, above n 95 at paragraphs 66 to 72 and 76 to 78. case commentary 220 gender violence or other reproductive harm that arises from autonomous reproductive treatment choices. protection of infertile women from gender based violence and other harm arising from reproductive treatment choices this section of the commentary explores whether vulnerable infertile women should be protected from gender based violence or other harm arising from autonomous reproductive treatment decisions exercised in favour of cross border health care101 combined with non-conventional medical methods as was the situation in the haringey lbc case.102 it does this against the backdrop of a consideration of the libertarian harm principle as enunciated in the seminal work of mill.103 the discourse in this section begins by considering the important point that in haringey lbc as well as the rep v miriam nyeko’s cases, what took place is a reverse of conventional medical tourism where a patient travels from a developing country to a developed country in search of medical care. in the haringey lbc case for example, mrs e104 travelled from united kingdom to kenya to obtain gynaecological and obstetrics care that she felt was more closely suited with her cultural and religious sensitivities.105 it concludes by considering whether there is a basis for state intervention to protect involuntary childless women who embark on such medical tourism expeditions that could potentially expose them to significant harm as depicted in the haringey lbc case. eshre106 states that among the key reasons why patients seek reproductive treatment in other countries are: (1) unavailability of treatment in the home country due to costs (2) national regulations that prohibit treatment because of religious, ethical or legal reasons (3) unavailability of a service because of unknown risks and the adoption of precautionary measures adopted by 101 eshre researchers have chosen to replace the terminology reproductive tourism with a neutral descriptor “cross border reproductive care.” see f shenfield et al eshre taskforce on cross border reproductive care: cross border reproductive care in six european countries (2010) 25 human reproduction 1361-68. 102 above n 1, paragraphs 35 to 37 and 44. 103 j s mill on liberty (indianapolis: hackett pub co 1978, original 1859). 104 the same applies to miriam nyeko in rep v miriam nyeko and others, see above n 19. 105 see her evidence before the high court in paragraph 35 of the court’s judgment, n 1 above. 106 g pennings et al “eshre taskforce on ethics and law 15: cross-border reproductive care” (2008) 23 human reproduction at 2182. the denning law journal 221 the state in this regard (4) prohibition of services to a group of people because of marital status, age or sexual orientation (5)poor quality medical care and low art success rates in the home state (6) lack of medical privacy or confidentiality in the home state (7) lack of expertise and equipment and (8) unavailability due to supply shortages.107 costs and law restrictions are the most cited reasons out of those identified above for patients’ decisions to seek cross border reproductive care.108 yet for some patients as we see in the haringey lbc case, the main reason for seeking cross border reproductive care is based on what has been described as ‘religious resistance’.109 the treatment seeking behaviour of mrs e and other female members of the gilbert deya ministry supports this point that cost and law restrictions may not always be the primary causes for seeking cross border reproductive care. rather patients may undertake cross border reproductive health care activity to seek health care that is provided to them in a religious and culturally sensitive manner. however, it is important to point out that women like mrs e in the haringey lbc case were not involved in the pure form of religious resistance as envisaged above,110 since they were not so much resisting religious restrictions that prohibited them from realising their reproductive plan, but rather that they were seeking for health care services that took into account their religious or cultural values. for instance, mrs e in her evidence in the haringey lbc case explained that she travelled to kenya to obtain confirmation of her ‘miraculous pregnancy’ when uk health care facilities failed to provide her with the diagnosis that she was seeking for.111 as stated elsewhere, the evidence before the court pointed to the fact that what she had probably experienced was an episode of pseudocyesis.112 evidently, a medical analysis of pseudocyesis is outside the remit of this article, but the starting point to demonstrate to a patient that she may be experiencing an episode of pseudocyesis is to have her 107 ibid, penning’s; see also above n 101, f shenfield et al (2010) at 1367. 108 ibid, shenfield at 1367. the study flags law restrictions as the patients’ key reason for seeking cross border care; see also marcia irhorn “ globalization and gametes: reproductive ‘tourism,’ islamic bioethics, and middle eastern modernity” 2011 transitions to modern colloquium, department of sociology, yale university, unpublished paper at p 11. this paper has been recently published as m irhorn “globalization and gametes: reproductive ‘tourism,’ islamic bioethics, and middle eastern modernity” (2011) 18(1) anthropology and medicine 87-103. 109 ibid, irhorn at p 12 unpublished paper. 110 ibid. 111 above see n 1, paragraphs 33 to 35 of the court judgment. 112 ibid at paragraph 63. case commentary 222 undergo ultra-scanning as well as other medical tests. mrs e obviously went through this process but refused to accept the medical diagnosis performed in the uk. this resulted in her choosing to seek medical treatment in another country which she believed would cater for her religious and cultural values. even when she was asked to undergo psychiatric assessment during the course of the judicial proceedings, mrs e declined to submit to this assessment.113 while this commentary does not argue for health care providers to provide patients with false hopes of a desired pregnancy, it does query whether the cultural or religious factors that guide the treatment seeking behaviour of infertile patients of ethnic minority descent is fully or properly understood. 114 this is explored in the light of the high court’s recommendation which was based on expert testimony that the culturally appropriate assessment of the wider context of the case should include a psychiatric assessment of mrs e understandably, to be able to effectively treat pseudocyesis, some form of psychiatric evaluation115 may be necessary and it may therefore be argued that the high court was right to recommend that mrs e undergo psychiatric assessment. but this commentary will suggest that a recommendation for such evaluation should have been contextualised within the proper understanding of how some people from religious-cultural backgrounds may respond to mental health care services.116 further, as expounded in earlier parts of this commentary, any proposal for a psychiatric evaluation to determine whether women like mrs e are suffering from episodes of pseudocyesis must seek to understand the social stigmatisation of involuntary childlessness in certain communities and how 113 ibid. 114 see generally works like s dyer et al “men leave me alone as i cannot have children: women’s experiences with involuntarily childlessness” (2002) 17(6) human reproduction at 1663 and 1667, which states that “central to the delivery of effective infertility care is an understanding of the experiences and implications of involuntary childlessness and of the religious and cultural context in which these experiences occur.” 115 however, it has been note that in developing asian and african countries, that this condition is also handled by obstetricians and gynaecologists. see s upadhyay “pseudocyesis: case report” (2008) 47(151) journal of nepal medical association at 147 and 149; see also p ibekwe, j achor (2008) 50(2) “psychosocial and cultural aspects of pseudocyesis” 50(2) indian journal of psychiatry at 114 and 115. 116 see m cinnirella, k loewenthal “religious and ethnic group influences on beliefs about mental illness: a qualitative interview study” (1999) 72 british journal of medical psychology at 505 and 513 which highlights some beliefs that some religious-cultural communities may have about health professionals and that ethnic and religious matching of patients with therapist is a central part in the “formulation of culturally sensitive mental health service provision.” the denning law journal 223 this may trigger off episodes of pseudocyesis.117 without this proper sociocultural understanding, women such as mrs e may not be offered the appropriate culturally sensitive care118 and the treatment they require to help them rise above this traumatic medical condition. where this level of health care is not provided, it is inevitable that women like mrs e would exercise their reproductive treatment autonomy in favour of cross border health care services that take into cognisance the socio-cultural significance of their involuntary childlessness and their desperate quest to experience biological motherhood at any cost. while reproductive autonomy and choice would permit them to embark on such cross border reproductive care expeditions, there is the real and potential danger that they may face attendant risks of gender related violence and harm arising from unsafe or poor health care services as was the situation in the haringey lbc case. this leads to the final argument on whether the state (without risking charges of paternalism)119 can and should intervene to protect women like mrs e from harm that has arisen out of their autonomous treatment seeking decisions?120 if as mill121 and more recent works122 have argued that limiting liberty can only be justified to prevent harm to other people and not to prevent self-harm123 then why should the state intervene to prevent and punish gender based violence arising from an adult’s decision to exercise autonomy and choice in her treatment seeking behaviour? if it is accepted that the strict application of the harm principle as enunciated by mill plays a role in limiting124 paternalistic state intervention, then it is arguable whether there is a basis for seeking state intervention in cases where women such as mrs e in the haringey lbc case have chosen to subject themselves to treatment that put them in harm’s way. as such it could 117 see upadhyay and p ibekwe and j achor respectively, above n 115. 118 see s dyer, n 114 above and m cinnirella, n 116 above. 119 p suber, essay on paternalism available from: http://www.earlham.edu/~peters/writing/paternal.htm (accessed august 15, 2011). original essay published as p suber, paternalism in c bray (ed) philosophy of law: an enclycopedia (new york: garland pub. co, 1999) ii, 632-635 120 j s mill, n 103 above . 121 ibid. 122 p suber, at 1, above n 119; see also generally j fienberg the moral limits of the criminal law (oxford: oxford university press, 1984-1988) volumes 1-iv. 123 ibid. 124 see p. suber at 1, above n 119. case commentary 224 be argued that the harm principle would allow for “unrestricted selfregarding autonomous behaviour irrespective of personal consequences”.125 however, there is strong argument that the harm principle will permit a role for paternalistic regulation where the decision that creates self-harm is “compromised by ignorance, deception, duress or clouded faculties.”126 in this regard, the high court’s findings that mrs e had been a victim of deception127 may justify some basis to argue for regulatory intervention even where the harm has arisen due to individual autonomy. this is because it is doubtful from the evidence128 available if mrs e exhibited the necessary selfregarding autonomous behaviour or granted valid voluntary consent to the sham clinic that subjected her to the specie of harm (the assault) so vividly described in the high court decision. likewise, it can be argued that the possibility that mrs e had experienced episodes of pseudocyesis129 could have further clouded her decision making process to seek treatment in the kenyan clinic. this is because the symptoms of pseudocyesis which mimicked pregnancy symptoms provided her with some proof and false hope that she was pregnant and had experienced a live child birth at the kenyan clinic. while there would always be valid concerns on how far we should allow paternalism in the guise of justified regulatory intervention130 to get in the way of hard fought liberties like reproductive autonomy and choice, it is hard to dismiss the role of regulatory intervention in safeguarding the protection of infertile women from gender based harm as depicted in the haringey lbc decision. further, there is a benefit for such regulatory intervention to strengthen the reproductive health care rights of infertile women, particularly those whose reproductive treatment seeking behaviour is influenced not only by health considerations, but by a desperate need to overcome the deleterious socio-cultural consequences of infertility. to do this will give some support to the argument that there is some positive value of paternalistic intervention if it fosters the “process of speaking for others in the course of defining needs.” 131 125 r hull “involuntary commitment and treatment of persons diagnosed as mentally ill” in j humber and r almeder (eds) biomedical ethics review 1983 (new jersey: humana press, 1983) 131 at 138. 126 p suber, above n 115, at 2. 127 see above n 1, paragraph 75 of the court judgment. 128 see above n 1 above, paragraphs 47 and 48 of the court judgment. the court found that she had been injected with a substance and could not see or feel all of what was happening to her. 129 above n 1 at paragraph 63. 130 p suber, above n 119. 131 j white democracy, justice, and the welfare state: reconstructing public care (pennsylvania state university press, 2000) at 123. the denning law journal 225 construed this way, regulatory intervention can be seen not as limiting the rights and freedoms of patients but rather as requiring states to comply with the international legal framework132 on providing safe health care services for involuntarily childless women particularly in the developing world. the call for regulatory intervention would also require that states proactively redress, where detected, any acts of gender based violence that arise when infertile women embark on cross border reproductive health expeditions akin to that undertaken by mrs e in the haringey lbc case discussed above. it is argued that the positive benefits of such state intervention far outweighs any libertarian concerns on the potential stifling of individual autonomy since the regulatory object is to protect vulnerable involuntary childless women who due to their socio-cultural circumstances are desperate to achieve pregnancy at any cost. conclusion this article has provided a discussion on the gender and reproductive health care rights issues embedded in the haringey lbc high court decision. the key focus has been to consider whether there is binding state obligation to prevent and redress gender based violence under relevant international human rights instruments. while this article acknowledges that there is some measure of uncertainty on whether there is a clear customary obligation requiring binding state responsibility for gender based violence under international law, it reaffirms the position that there is sufficient basis to support the fact that there is an emerging crystallisation of the rule particularly in the european region where the haringey lbc case was adjudicated. it therefore recommends for more proactive state action in combating gender violence and other harm suffered by women. it recommends that states (and their relevant organs such as health care providers and the courts that adjudicate on matters relating to family life) should develop a greater appreciation of the socio-cultural consequences of involuntary childlessness particularly when it affects women of african descent. this would help them to develop appropriate regulatory responses that protect and safeguard the rights of women like mrs e who through their treatment seeking choices are exposed to harmful activities including gender based violence. it is argued that notwithstanding the libertarian harm principle which censures state intervention for consequences arising from self regarding autonomous behaviour, there is a justifiable case to seek state intervention to protect women like mrs e affected by deleterious socio-cultural consequences of involuntary childlessness. this is necessary when regard is given to the 132 see r coomaraswamy at paragraphs 77 and 78, above n 95. case commentary 226 peculiar nature of facts presented in the haringey lbc case which creates some reservations on whether the treatment seeking choices of women like mrs e can ever be considered as truly self regarding and autonomous. beyond an academic appraisal of the haringey lbc decision, this article has a policy reformatory goal as its primary objective. it seeks to highlight the missed opportunities to redress acts of gender based violence and other harm arising from the facts that led to the haringey lbc case and other related judicial proceedings. the article is written in the hope that the continuing state action on child trafficking issues arising from the gilbert deya judicial proceedings would finally take into cognisance the need for equivalent state action in tackling the shrouded but extremely important gender and reproductive issues that are embedded in these proceedings. unincorporated associations: property holding, charitable purposes and dissolution 177 denning law journal 2012 vol 24 pp 177-189 the wisdom of solomon: relocation on relationship breakdown k v k (relocation: shared care arrangement) [2011] ewca civ 793 judith bray  the background to the case solomon, the eleventh century king of israel, was credited with great wisdom and sense. he was asked to decide which of two women was the mother of a child. obviously in those days medical tests were not available to decide the issue. solomon declared that the only solution would be to divide the child in two. the true mother, realising the awful consequences of this decision, came forward and declared that the other woman should take the child. solomon knew immediately that she was the true mother and accordingly the child was given to her. 1 the decision of a court with regard to relocation is reminiscent of the decision which faced solomon. it is one of the most difficult of family law where decisions are never straightforward. speaking before a committee at the house of representatives in australia, diana bryant stated: “relocation cases are the hardest cases that the court does... if you read the judgments in almost every judgement… you will see the comment that these cases are heart-wrenching, they are difficult and they do not allow for an easy answer. internationally, they pose exactly the same problems as they pose in australia. i have heard them described as cases which pose a dilemma rather than a problem. a problem can be solved: a dilemma is insoluble…” 2  llb, llm (london), barrister, reader in law, the university of buckingham. 1 see the old testament 1 kings 3:16-28. 2 the hon diana bryant speaking before the house of representatives standing committee (australia) on legal and constitutional affairs report on the exposure draft of the family law amendment (shared parental responsibility) bill 2005 in august 2005 p 22. case commentary 178 where a parent who has a residence order for a child requests leave from the court to relocate to another country the implications on contact with that child for the other parent are manifold. if both parents have a shared residence order then the issue of relocation becomes even more complex and difficult to decide. even the wisdom of solomon would be sorely tested in such cases. there are a whole host of issues for the court to unravel, not least to examine carefully the reasons why relocation is sought. in re ar (a child: relocation) 3 mostyn j commented that whilst accepting that great weight should be placed on the psychological impact of refusal to leave on the parent who is the primary carer, paradoxically it appeared to penalise selflessness and virtue whilst rewarding selfishness and uncontrolled emotions. in these cases the court has to be ever mindful of the reasons why a parent wishes to object to the relocation of a child. thorpe lj suggested in payne v payne 4 that there must be careful appraisal of the opposition of the other parent. is it motivated by genuine concern for the future of the child‟s welfare or is it driven by some ulterior motive? 5 the inevitable emotive nature of the arguments of each party can cloud the issue. under s 13(1)(b) of the children act 1989, a child cannot be removed from the united kingdom for longer than one month whilst there is a residence order in force without written consent of every person with parental responsibility or with leave of the court. where leave of the court is sought, the welfare of the child will be the paramount consideration. 6 the underlying difficulty in these cases lies in the fact that the welfare of the child may be equally affected by the improved well-being of the parent with residence if granted permission to relocate and by the reduction in contact with the nonresident parent. the decision on relocation therefore involves amongst other issues a careful balancing act between these two considerations. the recent decision in k v k 7 has given the courts the chance to review the law on relocation of a parent and to decide whether previous cases, in acting in the best interests of the child have placed too great emphasis on the needs of the parent wishing to relocate. the case concerned an application by the mother of two children, aged four and two to relocate with the children from the united kingdom to canada, the country of her birth. a shared residence order had been granted and care had been shared between the parents since the birth of the children, so relocation to canada would mean that the children would see their father at best three or four times a year. since 2001 relocation 3 [2010] 2 flr 1577. 4 [2001] ewca civ 166. 5 ibid, at para 40. 6 children act 1989, s 1(1). 7 [2011] ewca 793. the denning law journal 179 applications have been subject to principles laid down in payne v payne 8 and that decision came under close scrutiny in k v k. the decision in payne has been the subject considerable academic and judicial criticism for its limited approach to challenges by a parent against an application by a primary carer to relocate abroad. 9 such criticism was summed up in 2010 by wall lj in re d (leave to remove; appeal) “there has been considerable criticism of payne v payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done to children by a permanent breach of the relationship which children have with the parent left behind.” 10 payne v payne payne v payne concerned a child aged four who lived with her mother after the relationship of her parents had broken down. the child had had regular contact with her father. she spent a little under half her time with him in any two month cycle. the judge 11 accepted that the child had a very good relationship with the father and her paternal grandmother and extended family and spent considerable time with them all. the mother wished to relocate to new zealand to live closer to her family. she felt isolated and depressed living in london and she did not like the area where she lived which she felt to be unsafe because of its high incidence of crime. the few friends and family members that she had all lived some distance away. the judge granted leave to the mother to relocate to new zealand with the child. he applied the earlier decision in poel v poel 12 which held that leave should generally be granted where the mother‟s proposal to relocate is genuine, practical and reasonable and not a surreptitious attempt to cut off the father‟s contact with the child. sachs lj had stated in poel: “when a marriage breaks up, a situation normally arises when the child of that marriage, instead of being in the joint custody of both parents, must of necessity become one who is in the custody of a 8 see above n 4. 9 see generally j herring and r taylor “relocating relocation” [2006] child and family law quarterly 517 and m hayes “relocation cases: is the court of appeal applying the correct principles?” [2006] child and family law quarterly 351. 10 [2010] ewca civ 50. 11 his honour judge langan sitting in the cambridge county court. 12 [1970] 1 wlr 1469. case commentary 180 single parent. once that position has arisen and the custody is working well, this court should not lightly interfere with such a reasonable way of life as is selected by that parent to whom custody has been rightly given.” 13 the effect of the decision in payne on the father‟s future contact with the child was quite devastating. although the father could afford the airfare to new zealand several times a year he would no longer have the day to day care which he had previously enjoyed. he appealed to the court of appeal. he argued that a presumption had been created in the case law in favour of the primary carer which was impossible for a father to overcome because it was based on the established principle that a request by the primary carer to relocate would be granted unless the court concluded that it was incompatible with the welfare of the child. he argued that this was inconsistent with principles under the children act 1989 as it failed to place sufficient importance on maintaining contact with the absent parent and it was incompatible with the father‟s rights under the human rights act 1989. the court of appeal, in dismissing the appeal, held that the recognition and support given to the primary carer did not amount to a legal presumption. it held that the human rights act 1998 had not required a revision of the judicial approach in cases of relocation because the welfare of the child remained paramount in spite of the fact that there may be some conflict with the rights of adults. 14 such a limited approach to human rights issues has since been criticised. 15 stephen gilmore commented that the approach of the court of appeal in this case fails to acknowledge the difference between the paramountcy principle (in which the focus is solely on the child) and the wider principles within article 8 16 where the paramountcy principle is displaced. 17 andrew bainham also criticised the approach of the court of appeal 18 in payne and its failure to address the issue of continuing contact of the father with the child. he cited article 9(3) of the united nations convention on the rights of the child which provides that states parties must: 13 ibid, at 1473. 14 see above n 4 thorpe lj, at para [82]. 15 see generally j herring and r taylor above n 9 and s gilmore “the payne saga: precedent and family law cases” [2011] family law 970. 16 article 8 echr right to respect for private and family life: 1. everyone has the right to respect for his private and family life, his home and his correspondence. 17 see gilmore above n 15, at 977. 18 a bainham “taking children abroad: human rights, welfare and the courts” [2001] cambridge law journal 489 at 492. the denning law journal 181 “respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child‟s best interests” and observed that it was regrettable that the court of appeal did not address the question of continuing contact between the father and the child with greater urgency in the light of these international obligations. dame elizabeth butler-sloss set out the considerations 19 that should be in the forefront of the mind of a judge trying a case concerning relocation: (a) the welfare of the child is always paramount; (b) there is no presumption created by s 13(1)(b) in favour of the applicant parent; (c) the reasonable proposals of the parent with a residence order wishing to live abroad carry great weight; (d) consequently the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact with the other parent to an end; (e) the effect upon the child of the denial of contact with the other parent and in some cases his family is very important; (f) the opportunity for continuing contact between the child and the parent left behind may be very significant. although she was at pains to emphasise that there was no presumption in favour of the parent applying for relocation, the decision in payne left any parent challenging a claim to relocate with little hope of success. indeed dame butler-sloss held that a reasonable proposal made by the applicant parent, the refusal of which would have adverse consequences upon the stability of her new family and therefore an adverse effect upon the welfare of the child would continue to be a factor of great weight. 20 the vast majority of cases decided in the years following payne upheld the application of the parent seeking to relocate. in spite of critical comments made by wall lj in re d (leave to remove; appeal) 21 the application by a father for leave to appeal a decision by the county court granting leave to remove the children from the jurisdiction was refused because the judge declared that the appeal would stand no reasonable prospect of success. likewise the court of appeal dismissed the appeal of a father challenging the 19 see above n 4, at para [85]. 20 see above n 4, at para [84]. 21 see above n 10. case commentary 182 decision of the county court in re h (leave to remove) 22 allowing a mother to relocate to the czech republic refusing to review the guidelines laid down in payne. the court held that on the facts this was a clear case for the grant of permission to relocate, irrespective of the binding guidance given by payne, by reference simply to the welfare of the child. where leave to relocate was refused, refusal was based on the welfare of the child. leave was refused in re y (leave to remove from jurisdiction) 23 where an american mother sought the right to return to america with her child who lived equally with her and his welsh father. hedley j held that relocation would be disruptive to the child. this child had become integrated into the culture of wales to such an extent that he spoke welsh. he accepted that refusal to grant the order would affect the mother but in refusing leave he explained: “…in reaching a decision in this case i have tried to focus on y‟s welfare and to postpone the interests of both the parents, however fair and reasonable, to that one consideration. it truly is a case in which the paramountcy of the child‟s welfare has led to one parent being dealt a crushing disappointment...” 24 earlier in his judgment hedley j had assessed the overall impact on the mother of a refusal to grant leave: “….his mother – even though she is free to go as she pleases – will doubtless stay in wales, but equally doubtless will remain feeling isolated, distressed and frustrated in circumstances where all those feelings may intensify over time, depending on how things works out. and of course all that may have consequences for y, not only in terms of the quality of care he receives from the mother but in the sense of being exposed to her continued unhappiness, and those are real issues when i have serious regard, as i do, to the emotional welfare of this child…” 25 the facts of k v k k v k concerned an application by the mother of two children for leave to relocate to canada. both parents had come to england from canada as adults. the mother was canadian and the father was polish although he had spent his early years in canada. the parties met at the university of toronto in 1992. 22 [2010] ewca 915. 23 [2004] 2 flr 330. 24 ibid, at para [24]. 25 ibid, at para [11]. the denning law journal 183 they came to england and eventually married in 2004 and within five years they had had two daughters, the first daughter „i‟ born in 2006 and „a‟ born in 2009. both parents were employed in the banking world. soon after the birth of a the relationship broke down, the parties separated and divorce proceedings were filed in 2010. both parents were involved with their care and both had reduced employment hours in order to enable this. a shared residency order was made in august 2010, the effect of which was that the two children spent five nights with their father and nine nights with their mother over the period of a fortnight. in january 2011 the mother made an application to relocate with the children to canada. she argued that her health and well-being was suffering whilst she remained in england and she missed the support of her family. there was evidence that both parties that they were suffering from stress and depression at the time of the hearing before the court at first instance. the decision at first instance the case for the mother rested on her isolation and unhappiness whilst she remained in england. medical evidence from her doctor showed that she suffered from depression and stress for which she received medication. she wished to return to canada where she had a supportive family, indeed if she were to be allowed to relocate to canada she intended to live with her parents. the father argued that he had great commitment to his family and he had genuinely shared in the children‟s care. evidence was presented by the cafcass officer who emphasised that the judge needed to weigh the balance between the detriment to the children if they remained and the detriment that would result from a diminished relationship with their father. 26 the cafcass officer concluded that the balance came down against the move and recommended the refusal of the application. the judge found for the mother in spite of the strong recommendation from the cafcass officer that her application should be refused. the judge placed great weight on the potential effect of refusal on the mother: “…..importantly, i have to consider the effect on the mother and, consequently, upon the children of a refusal of her application. in my judgment she would feel increasingly isolate and depressed, which would be damaging for the children….if the mother were required to remain in london where i am satisfied she has not been happy in recent times, her distress is highly likely to increase with consequential impact on the girls‟ welfare….” 27 26 see above n 7 at para [22]. 27 see above n 7, at para [33]. case commentary 184 the court of appeal the father appealed on three grounds: i) the judge rejected the recommendation of the cafcass officer without proper analysis and explanation; ii) the judge directed herself by reference to the guidance offered by dame butler-sloss p at paragraph 85 in payne v payne (guidance apt for applications by primary carers) rather than by reference to the decision of hedley j in re y (leave to remove from jurisdiction) 28 (the only authority then available directly considering a relocation application by a parent who shared the care of his child) iii) in explaining her conclusion the judge referred only to the case that the mother presented. even when that deficit was raised by ms bazley, 29 she had not remedied the defect by referring to the case presented by the father. 30 thorpe lj concluded that the court should find in favour of the father. he considered the grounds of appeal and upheld the applicant on all three grounds. firstly, he reflected that the views of the cafcass officer had not been given sufficient weight. he held that the judge had not explained why she did not give effect to the clear recommendation that the mother‟s application should be refused. 31 secondly, he accepted that it was not appropriate to apply payne v payne to cases where the applicant shares the care of the children more or less equally with the respondent as in this case. he held that there had been a misdirection in law by the judge at first instance: “…given the extent to which the father was providing daily care, the judge should have considered and applied the dicta of hedley j in re y rather than those of the president in payne…” 32 in spite of arguments on behalf of the mother that care had been shared in payne v payne since the children were shown to be in the care of their father 28 see above n 23. 29 miss janet bazley qc counsel who appeared for the father in the court at first instance. 30 see above n 7, at para [25]. 30 see above n 7, at para [25]. 31 ibid, at paras [31-32]. 32 see above n 7 at para [35]. the denning law journal 185 for 40% of the time lord justice thorpe held that different principles should apply where there is a shared residence order as opposed to shared care between a primary and secondary carer. 33 thirdly, he addressed the final grounds of appeal by concluding that the judge ignored a range of factors that should have been brought into consideration when deciding the issue. he concluded that: “…her conclusion is not the result of a balancing of pros and cons. she lists only the pros upon which she pronounces her conclusion. that is, in my judgment, a fatal deficit…” the judgment of moore-bick lj is significant not least for the fact that on his own admission he had little familiarity with family law and practice. this gave his judgment particular weight since he was considering the case law from a new perspective. he considered a range of recent cases on relocation starting with payne pointing out that its facts were less complicated than those of k v k as in payne the mother was the sole carer of the child although the child spent extended periods with the father. he suggested that the case should be read and understood in the particular context in which it was given. his comments on the use of payne v payne as an authority in subsequent cases is useful and suggests that subsequent courts have failed to distinguish between legal principle and guidance. he held that: “…having considered payne v payne itself and the authorities in which it has been discussed, i cannot help thinking that the controversy which now surrounds it is the result of a failure to distinguish clearly between legal principle and guidance… as i read it the only principle of law enunciated in payne v payne is that the welfare of the child is paramount; all the rest is guidance. such difficulty as has arisen is the result of treating that guidance as if it contained principles of law from which no departure is permitted….” 34 he continued by suggesting that courts may have adopted an “unduly mechanistic application of the guidance given in payne v payne” and it was this approach that had given rise to current concern. he too upheld the father‟s appeal. the third judge, black lj found for the father but took a different route in her judgment from thorpe lj and moore-bick lj. she suggested that “the effect of the guidance from payne must not be overstated.” 35 she argued that 33 ibid, at paras [28-29]. 34 ibid, at para [86]. 35 see above n 7, at para [143]. case commentary 186 relocation cases should not rest on whether or not a child spent a certain amount of time with the non-resident parent or “other aspects of the care arrangements”. in her view when cases concerning the relocation of a child were considered by a court she expected not: “…to find cases bogged down with arguments as to whether the time spent with each of the parents or other aspects of the care arrangements are such as to make the case “a payne case” or “a re y case” nor would i expect preliminary skirmishes over the label to be applied to the child‟s arrangements with a view to a parent having a shared residence order in his or her armoury for deployment in the event of a relocation application…. when a relocation case falls to be determined, all of the facts need to be considered...” 36 commentary k v k is an important case on the development of the principles on which the courts act in relocation cases. an important fact in this case was that a shared residency order had been made. all three judges in the court of appeal referred to this although lady black was anxious to note that all the facts of the case should be considered in relocation cases and too much emphasis should not be placed on whether there was shared care or not. in her view cases should not turn on whether the case fell into a group she referred to as “a re y case” or “a payne case”. however it is clear that the fact that the parties had shared residence in k v k had made a difference to the way the court of appeal approached the issue. ultimately the court held that it would not be in the children‟s best interests if the mother were to be granted the right to relocate because this would undermine the regular contact that the father had with his children which would be destroyed and replaced by intermittent visits to canada. this had to be balanced against the reasons for the application of the mother. the court accepted that her application to return to canada was for genuine medical reasons but balanced against the need for the children to maintain regular contact with the father the court decided it was in the best interests of the children to remain in england. thorpe lj commentedon the failure of the judge to give sufficient weight to the care provided by the father: “…i am in no doubt that that is a misdirection as to the law. given the extent to which the father was providing daily care, the judge should have considered and applied the dicta of hedley j in re y (leave to 36 ibid, at para [145]. the denning law journal 187 remove from jurisdiction) rather than those of the president in payne…” 37 in re y the court was presented with evidence of the mother‟s feelings and sense of isolation and the effect on her health of continuing to live in wales. as in k v k this constituted one of the main reasons for her wish to relocate to america but hedley j balanced these factors against what he perceived as the best interests of the child. the court is bound by the welfare principle in relocation cases and what the court perceives to be the best interests of the child but as many practitioners and academics 38 have pointed out there is little real research on what is the best interest of a child who is caught in the middle of a relocation dispute. 39 research is difficult because of the problem of deciding on the correct comparators. as pointed out by rob george “the difficulty is that the findings risk comparing apples with oranges”. 40 he suggests that comparisons made between “children who move” and “children who do not move” uses the wrong comparator. instead the correct comparison is between “children who move where one parent applied to court unsuccessfully to prevent the move” and “children who do not move where one parent applied to court unsuccessfully to be allowed to move”. he continues “a comparison which includes all children who move or who do not move is irrelevant to the relocation debate, because it brings into the equation a great many children whose parents never wish to relocate, and children whose parents did not litigate in opposition to the relocation plans.” 41 there is little research on how a child fares after a court has refused permission to relocate to a parent. some weight may be placed on findings from research in the united states although this research focuses primarily on interstate relocation as opposed to international relocation. william austin evaluated research findings in the united states 42 and concluded that children of divorced parents who relocate 37 ibid, at para [35]. 38 m freeman “relocation research: where are we now?” (2011) international family law 131; m freeman “the reunite research project” (2010) international family law 161. 39 note the research project conducted by m freeman in 2009 “relocation: the reunite research”. research unit of the reunite international child abduction centre as one of the few examples of research in this area. 40 r george “reviewing relocation? re w (relocation: removal outside jurisdiction) [2011] ewca civ 345 and k v k (relocation: shared care arrangements) [2011] ewca civ 793” [2012] child and family law quarterly 108. 41 ibid. 42 see generally w austin “relocation, research and forensic evaluation, part 1 effects of residential mobility on children of divorce” (2008) family court review 137. case commentary 188 seem to fare less well in a number of respects such as education and social well being. he cites research from tucker in 1998 which showed that children of divorce who move only one time increase their chances of having problems at school by forty per cent. 43 however austin prefaces his article by stating that although the research he reviews shows that there is convincing evidence that relocation significantly expands the level of risk for children of divorce, the literature should not be viewed as creating a basis for a bias or legal presumption against relocation. 44 he suggests that to conclude that a child‟s education may be affected by relocation is only part of the discussion in contested relocation disputes and does not necessarily address the issue of the break in contact with the other parent, perhaps simply a case of comparing “oranges with apples” 45 and concentrating more on the general effect of divorce than the more contentious effect of relocation. the lack of research in the united kingdom is being currently addressed by a research project which aims to review every relocation case heard in any family court in england and wales during 2012. 46 if the effect of k v k is to be that the courts will look at the facts of cases of shared residency differently from those of sole residency then a further question for research should be the merits of shared residency and its effect on children. shared care may arise in cases of sole residency which may amount to as much time being spent with the children by the non-resident carer as in shared residency cases. there is little research on this in the united kingdom so conclusions must be drawn from studies in australia, new zealand and the united states. a review of the research by liz trinder in 2010 considered a number of aspects of shared care such as the level of satisfaction for both parents and children, the length of time that shared care genuinely lasted and whether shared care could be perceived as “good for children”. 47 she cites one major study of school age children undertaken by mcintosh et al 48 in australia which, amongst a number of issues, considered children‟s satisfaction with shared care arrangements. the study concluded that arrangements for equal or substantial sharing of time may in some circumstances suit parents better than 43 c j tucker, j marx and l long “„moving on‟: residential mobility and children‟s school lives” (1998) sociology of education 71. 44 see above n 42, at 137. 45 ibid. 46 the relocation research project 2012 under dr rob george, authorised by sir nicholas wall p under fpr rule 10.73(c): see family law week 13/04/2012. 47 l trinder “shared residence: a review of recent research evidence” [2010] family law 1192. 48 j mcintosh, b smyth, m kelaher, y wells and c long (eds) post-separation parenting arrangements and developmental outcomes for infants and children. three reports prepared for the australian government attorney-general’s department (canberra: 2010). the denning law journal 189 the children. the key messages drawn from research by liz trinder are twofold. firstly, that children should have far more influence over arrangements for their care and secondly, that the focus of apportioning time between the parents reflects an adult agenda rather than a child agenda. she writes: “…if it were children who made the applications or decided cases or redesigned the family justice system, then it is likely that most would want to refocus the attention of adults on the quality rather than the quantity of relationships….” 49 children‟s views are a relevant issue under the children act 1989. 50 the welfare checklist includes the ascertainable wishes and feelings of the children in the light of their age and understanding and so the court must consider their views where appropriate. the views of the children in the recent case of c v d 51 were an important issue and influenced the outcome of the application for the mother to relocate to the united states. in this case the children were aged thirteen and eight, it is more difficult where the children are younger. the children in payne and k v k were very young so their views were difficult to ascertain although the evidence of the cafcass officer on the effect of relocation on the children‟s relationship with their father proved influential in the court of appeal decision in k v k. the decision in relocation case is an almost impossible choice to make for any court and it is reminiscent of the decision of solomon in finding the mother of the child. he took a risk in making his decision. in retrospect it turned out to the right decision. the problem today is that without understanding the true effect of either granting or refusing an order to relocate the court cannot be confident that the decision has been made in the best interests of the child and so relocation cases continue to involve an element of risk. 49 see above n 47, at p 1197. 50 s 1(3) ....a court shall have regard in particular to – (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding). 51 [2011] ewhc 335 (fam). microsoft word 23 1 beloffdwse v3.doc 1 the denning law journal 2011 vol 23 pp 1-28 “a view from the bar” michael j beloff qc1 the tenth sir david williams lecture (tfv) delivered at law faculty: cambridge university on 21st may 2010 the sense of privilege that i feel in being invited to deliver this lecture is tempered by my sadness that the distinguished lawyer, in whose honour it was founded, is no longer with us. david was a friend of, and mentor to, me for many years. we first met in the 1960s when he was a law fellow at keble, oxford – a part of his career which was mysteriously airbrushed from the memorial service which took place earlier this year in great st mary’s church. he became an academic tenant in the chambers at 4/5 grays inn square of which i was then joint head. he acted, as he put it, as my “junior” when i chaired the judicial subcommittee of the senior salaries review body: we were clearly suspected in tandem of apparent, if not actual, bias towards the payees, since at the conclusion of our term no lawyers appointed were to replace us. he was one of my referees when i became president of the smaller – i choose the adjective with care – of the two oxbridge trinities. it was characteristic of david, whose modesty was preeminent among his many memorable qualities, that in asking me to be the tenth lecturer in this series, he told me only after i had accepted, that he was in all likelihood destined not to be among the audience. alas, his prophecy was fulfilled. i miss him greatly. my predecessors as lecturer have all been lawyers of the highest repute – the last four being chief justices of major democracies. indeed for me to follow in the immediate footsteps of the chief justice of the united states of america, albeit a stripling some years younger than i, risks giving a new meaning to the word ‘bathos’. but incapable of matching these generals in 1 blackstone chambers, the temple, sometime president of trinity college and treasurer of gray’s inn, senior ordinary appeal judge of jersey and guernsey, judge of the first tier of the upper tribunal. a view from the bar 2 delivering ex cathedra statements from the mountain peaks of the law, i, a mere foot soldier, have decided to pitch my perspective from its plains. i have been for more than four decades a member of the bar of england and wales so crossing what my researches for this lecture identify as a chronological plimsoll line. in the bodleian law library i came across two memoirs entitled “forty years at the bar” one by edward abinger,2 the other by james balfour-bowen3 only to find, a few shelves on, a volume entitled “72 years at the bar” by ernest bowen-rowlands4 – a quantum leap of forensic longevity, equivalent in terms of record breaking to usain bolt’s exploits as a sprinter. abinger’s plea in mitigation for his autobiography rested on the coincidence that, as he wrote, he had “nearly attained the three score years and ten usually allotted to men” coupled with the urgings of his many friends5. i could only avail myself of half of that not altogether convincing excuse. and it is not my purpose, in mimicry of these worthies, merely to indulge in titivated court room reminiscence, nor to give an apologia pro vita mea, although my lecture will be in part a credo. at the end of that classic sixties film alfie, the hero played by michael caine, turns towards the camera, and asks ‘‘what’s it all about?’’ it is that question, as a veteran6 jobbing attorney, that i shall seek to answer. but let me start my voyage in that now iconic decade. i was called to the bar by grays inn in november 1967. in order to qualify, aspirant barristers who did not need to be graduates, could study law in their own time, from nutshell notes, scripted by gibson and weldon. my practical training consisted of watching my pupil-master, to whom i was apprenticed for the next year, and learning from his trials and his errors in equal measure. for this facility i had to pay him the princely sum of £50. in those days barristers still conventionally wore cutaway black jackets and striped trousers; and a handful continued to affect bowler hats. there were few females in the profession – in the year of my call approximately 7% of new barristers. objections were still voiced, devoid of any sense of shame, to women being admitted to chambers on the basis that they would inevitably soon depart to pursue their proper and predestined role of child bearing and rearing. 2 (hutchinson, 1930). 3 (herbert jenkins, 1971). 4 (macmillan, 1924). i passed over j law my sixty years in the law (bodley head, 1936) the recollections of a judge’s clerk. 5 ibid, p 7. 6 so described in the gibraltar chronicle when appearing in the privy council for the chief justice in hearing on the report of the chief justice of gibralter referrals under section 4 of the judicial committee act 1833 [2009] ukpc43, the day before i was identified on the same journal as “imminent” (sic). the denning law journal 3 ethnic minority counsel were still rarer. while the inns of court played host to a significant proportion of overseas students from new commonwealth and old empire, those same students were expected to return to their own countries and exploit the title of barrister-at-law to immediate advantage, accelerating to positions such as attorney general or even chief justice with a velocity which their english equivalents could only emulate in their dreams. chambers were generally small – my own set, 2 hare court, had, when i arrived, 12 members and no qcs. chambers’ names were then their addresses too. membership was for life. departure from the set to which one had been admitted as a tenant, indeed as a pupil, on the solitary say-so of the head of chambers, himself selected on the principle of buggin’s turn, was as rare, and as disagreeable, as divorce. chambers’ administration rested exclusively on the clerks, who arranged one’s diary, negotiated one’s fees, and took 10% of them – the so-called shilling in the guinea. control of the profession still rested substantially with the inns: the bar council being more a representative than a regulatory body and its chairman, in bagehotian terms, more dignified than efficient. solicitors were a segregated, separate and unequal branch of the legal profession. the relationship between barrister and solicitor was a vertical, not a horizontal one, even though solicitors were the single source of barristers’ instructions. on that basis solicitors came to seek advice only in the barristers’ chambers. it was a breach of the bar’s professional etiquette to fraternise with them; or otherwise to advertise a barristers’ own expertise (such as it was) however discreetly. the all but omnipotent clerks acted as the barristers’ agent to the outside world, and could make, but also break, careers.7 solicitors enjoyed no rights of audience in the higher courts of law, where silks still appeared with juniors who were paid 2/3rds of their leader’s fee. judicial appointments were made entirely from the ranks of bar. the lord chancellor by means of the usual – but archaic – processes of consultation himself determined who should become a queen’s counsel or a judge. it was clear that some who aspired to such status had a black mark against them; but who had put it there was obscure; and there was no formal means by which it could be exposed, still less eradicated. it was assumed that most barristers did aspire to the high court bench. if invited to accept such an appointment, a qc was expected to accept it; and one judge, harry fisher, who swiftly abandoned the office, first in favour of city and then of university life, after brief exposure – i parody – to the monotony of personal injury litigation in 7 see the obituary of ron burley, clerk to, amongst others, lord alexander, lord phillips, sir sidney kentridge qc, and jonathan sumption qc in the times 8th april 2010. a view from the bar 4 sunderland, punctuated by the occasional affray in darlington, was regarded as having done that which a gentleman should not do. in court the tradition of oral advocacy and oral evidence was unchecked: precedents relied on would not infrequently be recited in full. judges conventionally declined to read any papers before coming into court in case it prejudiced their otherwise open minds. they acted as referees, determining who won or lost, penalising breach of rules, but otherwise uninvolved. cases would be frequently adjourned for “counsel’s convenience” or sometimes because the judge had “a public duty to perform” – occasionally a euphemistic synonym for an invitation to a royal garden party. barristers uniquely among the profession were immune from suits for negligence8, although also they could not sue for their fees. the only established form of dispute resolution, alternative to litigation, after the demise long since of the duel, was arbitration. the technology to support such litigation was immature. typewriters were at best electric, not electronic: the fax machine had but recently arrived on the scene; the word processor was unheard of. blackberries were still fruit. copying files was a laborious process. conferences took place face to face. research was done in libraries. judges recorded evidence and argument in manuscript. under the legal aid system inaugurated in 1949,9 in broad terms anyone who satisfied a means and merits tests could walk through the door of any solicitor who was entitled, regardless of expertise, to take with counsel’s assistance, a case through from start to finish at public expense. england was truly an off-shore island in the legal world. although qcs could still travel to exotic regions of the old empire singapore, malaysia, hong kong, the caribbean islands, newly independent african states – to appear in full fig and with white wig in courtrooms cooled only by revolving fans, the domestic common law was uninfluenced by the law of the common market, or by the european convention on human rights. the writings of academics were only cited in court after their authors were dead, but not, by venerable tradition, before. fast forward the clock to 2010, four and a half decades later. how different is the picture! barristers are still called to the bar by the inns of court – institutions of medieval origin but with considerable staying power, but the bar is now a wholly graduate profession. pupillage is still a necessary part of the aspirant barrister’s education; but it is preceded even for those, who with law degrees, are spared the monotony of the graduate diploma in law by a year’s specific 8 rondel v worsley [1969] 1 ac 191. 9 see for its development walker and walker the english legal system (oxford: oup, 10th edn, 2008) pp 403-404. the denning law journal 5 training by the bar professional training course10 in such matters as advocacy, negotiation, client relations and other matters which previously the fledging barrister had been expected to acquire by a mysterious osmotic process. pupils no longer pay for the privilege of pupillage, now itself a structured training programme; on the contrary the major sets of chambers fall over themselves to offer substantial scholarships of up to £50,000 per annum to attract the best and brightest of their generation. olpas, the mark 2 model of pach – the pupil’s application clearing house, itself based on ucas, restricts the window for applications to a specified time of the year – in common with professional football transfers – to prevent unseemly competition. the barristers’ formal attire of yesteryear gathers mothballs in the attic. dark suits are still obligatory – although the concept of darkness appears somewhat flexible. women, who now constitute 58% of those admitted to the profession, usually wear the trousers. minority ethnic counsel are on the rise, constituting almost 24% of pupils in 2007. chambers are larger. in birmingham two sets have more than 100 tenants. my old set now numbers 75, of whom almost half are qcs. it has been rechristened blackstone in the modern style, where no significant figure in english legal history from bracton and erskine, to denning and wilberforce has not been pillaged to add borrowed lustre to a chamber’s name – not to speak of matrix, professional home of cherie booth, which has looked to hollywood rather than history or the house of lords for inspiration in its title. tenants, and pupils, are chosen by a rigorous process conforming to modern best practice, informed by anti-discrimination legislation and the human rights act. and not only is it now conventional for upwardly mobile barristers to move to different sets, but transfers are even solicited, again just as they are between football clubs. the clerks, a durable race, have been supplemented by practice managers or even by chief executives – all now salaried. the clerk’s 10% has gone with the wind, once it was appreciated that its survival would guarantee the recipient an income far in excess of that enjoyed by the highest earning barrister. the bar itself has been affected by waves of legislative regulation: the courts and legal services act 1990, the access to justice act 1999, the legal services act 2007. in order to react to but also to anticipate further control, the bar council has become an executive engine, spawning committees, position papers and guidelines on every subject from international relations to maternity leave; the chairmanship is a full time post. 10 formerly the bar vocational course. a view from the bar 6 the balance of power between the professions has shifted. barristers will dispense advice in solicitor’s offices. solicitors are no longer prohibited guests; but encouraged to attend chambers’ parties, where they are wooed with champagne and canapés – some would say excessively. movement within the bar is paralleled by movement from one profession to another. between the bar and solicitors is no longer a rubicon but a rivulet. there is a wealth of legal directories in which lawyers’ specialities can be recorded. it is nonetheless irritating to be flattered by some publisher as a leading expert in a particular field, but then invited to pay several hundred pounds so that this remarkable piece of intelligence can be broadcast to the wider world. these weighty volumes proliferate with their own ranking lists, treated by barristers with reverence or contempt depending on how they are personally assessed – in the same way as politicians variously treat opinion polls. there are the lawyers’ equivalent of the oscar and bafta ceremonies held in the ballrooms of leading london hotels in which titles such as “construction and technology junior of the year” are handed out by celebrity compères. solicitors, subject only to fulfilment of certain criteria in terms of experience and training, have rights of audience in the highest courts, where qcs now often appear without the buttress of a junior. as quid pro quo the bar has promoted direct access, cutting out the solicitor middleman. this has not, despite dire predictions, brought a halt to the expansion of the independent bar. when i was called there were 2,300 barristers in independent practice: now there are over 12,000. in the law’s house there are many mansions. there will always be scope for the buccaneer as well as the backroom boy. solicitors can aspire too to the highest judicial posts: qcs as well as judges are chosen by commissions with a strong lay component.11 but the bench itself is no longer the inevitable culmination of a successful career at the bar. the charms of college or boardroom, a preference for advocacy over adjudication and the growing gulf between the income of a fashionable silk and even the lord chief justice has ensured that by no means all who could be on the high court bench are, or, increasingly, will be. modern technology has transformed the operation of the law. video conferencing has become common. courts can accommodate simultaneous display of evidence on screen. submissions are handed up and judgments handed down on disk. research is increasingly done through the electronic 11 the lord chancellor’s residual and qualified right of veto over senior judges can delay but not determine the outcome, as is shown by the recent appointment of an outspoken critic of the government’s policies on children to the presidency of the family division. the denning law journal 7 database and the world-wide-web. professor richard susskind has termed the lawyers of the future “legal information engineers”. in court, influenced by civilian and transatlantic example, written now accompanies oral advocacy. skeleton arguments and witness statements have to be provided. judges are expected to read them in advance, and some indeed do. they have become case managers controlling the timing and pace of litigation, conscious of the need to meet targets and to cut costs. barristers can be sued for negligence;12 and even exposed to wasted costs orders.13 they are obliged to carry insurance but can enter into contracts to provide legal services to their professional clients. adjudication has been part privatised, with mediation and other forms of adr14 supplementing more conventional arbitration. there is a community legal service and a criminal defence service – a system of state defenders – to complement the crown prosecution service. old style conventional legal aid for civil work has swept away – it no longer exists for personal injury claims or most damages actions, and the legal services commission enters into franchised contracts with vetted practitioners to provide services. conditional fees are now allowed to support privately funded litigation. it is closing time in the gardens of the east. malaysia has ceased to be an area where english silks can appear; singapore almost so, and, even in hong kong the bar council operates a justifiable protectionist policy. strasbourg and luxembourg have provided new fora to replace the old. in civilian terms doctrine as well as jurisprudence can be relied on in litigation: and living academics can collect the number of their citations in judgments as well as in the footnotes in prestigious journals. comparative law has infiltrated forensic argument. as tom bingham presciently noted “there is a world out there”.15 but has the transformation of the context transformed the content? are the values and the virtues of the bar what they were? can they, and should they, survive this tsunami of reform,16 whether imposed from without or generated from within? tom bingham, amplifying his much quoted williams lecture on the rule of law into a slim volume, wrote in his chapter on a fair trial: 12 arthur hall v simmons [2002] 1 ac 615: see too may & peltman [2005] 1 wlr 581. 13 clsa section 5: substituting a new section 51 in the supreme court act 1981 and ridehalgh v horsefield [1994] ch 205 ep p236, medcalfe v mardell [2003] 1 ac 120. 14 h brown and a marriott adr principles (sweet and maxwell, 1999). 15 the fa mann lecture (1992) 41 iclq at 513-529. 16 see m burrage revolution and the making of the contemporary legal profession (oup, 2006) ch 14 xvi and xvii. a view from the bar 8 “scarcely less important than an independent judiciary is an independent legal profession, fearless in its representation of those who cannot represent themselves, however unpopular or distasteful their case may be.”17 in that single sentence are identified three elements crucial to the bar’s ethos18: availability, fearlessness and independence – but the greatest of these is independence. it is the availability as much as the quality of representation which is the guarantee provided by the bar. under the so-called cab-rank rule any barrister not otherwise engaged or conflicted out and competent in the relevant area of law must appear for any client willing and able to pay an appropriate fee, even if he disapproves of the clients’ character or cause.19 it was said to be, in one analysis of legal ethics “to barristers what the hippocratic oath is to doctors”. in arthur hall v simmons20 the law lords variously described it “a valuable professional rule”21 or “ethic”,22 a “long and honourable tradition”,23 as “a fundamental and essential part of a liberal legal system”24 and “a public duty which advocates perform without regard to such private considerations such as general gain or personal inconvenience.25. in the same case various rationales were supplied. the rule ensures that no-one is left without representation even the most “unpopular and anti-social.”26 “it protects barristers against being criticised for giving their services to a client with a bad reputation.”27 17 (penguin, 2010) pp 92-93. 18 as to which see generally: a boon and j levon the ethics and conduct of lawyers in england and wales (hart, 1999) ch 14 “advocacy services”. 19 see now the courts and legal services act 1990 (“clsa”) s 17(3)(a). 20 [2002] 1 ac 612. see further adoyomi v radford [2008] qb 793, holding that its effect was not prospective only. 21 lord steyn at 678. 22 lord hoffman at 686. 23 lord hope at 714. 24 lord hobhouse of woodborough at 739. 25 lord hope at 714. 26 lord hobhouse of woodborough at 739. 27 lord hoffman at 686. the denning law journal 9 “it negates the identification of the advocate with the cause of his client and therefore assists to provide him with protection against governmental or popular victimisation.”28 some have elsewhere pitched its justification high. erskine defended his own defence of thomas paine, author of the rights of man, with the words: “from the moment that any advocate can be permitted to say that he will or will not stand between the crown and the subject from that moment the liberties of england are at an end.”29 some have pitched it low. geoffrey robertson qc wrote: “it reduces the amount of excrement through the letter box.’’30 yet the virtues of the cab rank rule are not always recognised outside the profession. the abolitionist granville sharp, the prime mover in somerset’s case31 when lord mansfield famously determined that slavery was unlawful in england, criticised dunning, counsel for slave owner, who had represented a slave in an earlier case for his forensic volte face, recording his disapproval of: “an abominable and insufferable practice in lawyers, to undertake cases diametrically opposed to their own declared opinions of law and common justice.”32 and when i appeared within the committee of privileges in a vain effort to postpone the ejection of the hereditary peers from the house of lords,33 margaret jay, then leader of the house, came up to me in the moses room shortly before the hearing and expressed her surprise at my appearance, as she phrased it, “on that side”. but when some years later in an article in the spectator i suggested that retired members of the university who lived in oxford had no more obvious right to vote on the university affairs than hereditary peers to participate in the deliberations of the upper house, lord trefgarne, one of my sometime clients, wrote a letter complaining that my 28 lord hobhouse of woodborough at 739-40. 29 1792 22 state trials 358 at 412. 30 g robertson the justice game (chatto & windus, 1998) pp 377-9. 31 1772 20 state tv1. 32 e heward lord mansfield (barry rose, 1998) p 145. 33 lord mayhew of twisden’s petition [2002] 1 ac 109. a view from the bar 10 views seemed inconsistent with my representation of the hereditary interests in the earlier litigation. others have suggested that the rule is more mantra, than mandate. lord steyn in arthur hall said: “its impact on the administration of justice is not great. in real life a barrister has a clerk whose enthusiasm for unwanted brief may not be great, and he is free to raise the fee within limits.”34 yet the menace, if any, comes less from avarice than from ideology. in setting up chambers, in lambeth as a barristers’ co-operative where profit was not the prime mover, lord gifford, hereditary peer and soi-disant passionate advocate said: “we let it be known that we would not want to prosecute cases for police, nor would we act for landlords against tenants or for employers against employees.”35 threatened with disciplinary proceedings by the bar council, he ingeniously defended that stance on the basis that his chambers had indicated a preference, not imposed a prohibition. but even in sets which house the alternative bar or those of avowedly left of centre persuasion, there is no reason to believe or evidence to support that their members could, or indeed would purge from themselves what the current chairman has called “the dna of the bar”.36 as a barrister cannot disdain neither can he prejudge his clients’ case dr johnson said: “a lawyer has no business with the justice or injustice of the cause which he undertakes, unless his client asks his opinion, and then he is bound to give it honestly. the justice or injustice of the cause is to be decided by the judge.”37 34 lord hobhouse at 739 “regrettably not all barristers observe it even though such failure involves a breach of their professional code”. 35 a gifford the passionate advocate (wildy, simmons and hill, 2007) p 19. (hereafter: “gifford”). 36 bar council chairman inaugural speech: nicholas green qc 7th december 2009 “no one has been reported in recent years for any alleged infringement of the cabrank rule, and particularly in the criminal sphere it is a rule which is zealously observed.” thornton cit sup. 37 dr johnson 15 august 1773, in j boswell the journey of a tour to the hebrides with samuel johnson, lld, 1785. the denning law journal 11 so does the barrister then, in accepting a brief, become monocular or may he have a broader vision? henry brougham to justify his controversial defence of queen caroline proclaimed: “an advocate, by the sacred duty which he owes his client, knows in the discharge of that office but one person in the client and none other, …he must go on reckless of the consequences, even if his fate it should unhappily be, to involve his country in confusion for his clients protection.’’38 by contrast lord macmillan, a law lord, commented extracurially: “in the discharge of his office the advocate has a duty to his client, a duty to his opponent, a duty to the court, a duty to the state, and a duty to himself. to maintain a perfect poise amidst these various and sometimes conflicting claims is no easy feat.”39 amongst that quintet of perceived obligations, only a pair may command general agreement – the duty to the court and the duty to the client, the former wrongly omitted from brougham’s catalogue of one. as is recorded in the gospel according to st. matthew no man may serve two masters;40 but a barrister must. he owes, as lord hoffmann put it “a divided loyalty”,41 for the duty to the client is subordinate to advocate’s principal duty. lord denning gave a classic enunciation of the duty’s pith and purpose. he said of the barrister: “he has a duty to the court which is paramount. it is a mistake to suppose that he is the mouthpiece of his client to say what he wants: or his tool to do what he directs. he is none of these things. he owes allegiance to a higher cause. it is the cause of truth and justice.”42 38 quoted in d nicholson and j webb professional legal ethics (oup, 2000 ) p 162. 39 h macmillan the ethics of advocacy in law and other things (cambridge 1938) p 185. 40 matthew 6.24. 41 arthur hall 628. 42 rondel v worsley [1967] 1 qb 443 at 502. a view from the bar 12 the practical effects of this duty now enshrined in statute43 are many,44 and illuminated by a wealth of judicial dicta. an advocate may not deceive or knowingly mislead the court45 nor allow the judge to take what he knows to be a bad point in his client’s favour.46 he must bring to the attention of the court all relevant decisions and legislative provisions of which he is aware, even those that are adverse to his argument.47 he must conduct the proceedings economically and “not waste time on irrelevancies even if the client thinks they are important”,48and notwithstanding, as the chief justice of australia anthony mason graphically put it, that “the client may wish to chase every rabbit down every burrow”.49 still less may he “take false points however much his client may insist he should do so”.50 he must help the court to further the overriding objective of the civil procedure rules.51 he must not set his name to a plea which “he does not consider to be properly arguable”.52 43 see sections 27(2a) and 28(2a) of the courts and legal services act 1990 as inserted by section 42 of the access to justice act 1999. section 27(2a) of the courts and legal services act 1990 (clsa 1990) provides: ‘every person who exercises before any court a right of audience granted by an authorised body has – a duty to the court to act with independence in the interests of justice; and a duty to comply with rules of conduct of the body relating to the right and approved for the purposes of this section and those duties shall override any obligation which the person may have (otherwise than under the criminal law) if it is inconsistent with them.’ see too basic principles on the role of lawyers adopted in 1990 by the eighth united nations congress on the prevention of crime and treatment of offenders principle 14. lawyers should at all times at “freely and diligently in accordance with the law and recognised standard and ethics of the legal profession”. they are also of course found dispersed throughout the bar council’s code of conduct, the first edition of which dates only to 1980. 44 see generally da “lawyers’ duties to the court” (1998) 114 lqr 63. 45 frape v emreco international limited [2002] eulr 10 per lord mcewan [21]. 46 lord hoffmann: arthur hall: 686 meek v fleming [1961] 2 qb 366. 47 lord hoffmann: arthur hall: 686. 48 arthur hall: lord hoffmann at 686. 49 gianarelli v wraith (1988) 165 clr 543 at 556. 50 arthur hall: lord hope at 715. 51 per arden lj in geveran trading co. ltd v skjevesland [2003] 1 wlr 912 [37] 52 r v horsham district council ex parte wenman [1995] 1 wlr 680 per brooke j at p 698. the denning law journal 13 he must not unjustly make a charge of fraud, without evidence to support it.53 he must see that his client disclose relevant documents, even those that may be fatal to his case.54 these principles apply to barristers in criminal as well as in civil proceedings. prosecuting counsel play an important public role in promotion of an open and fair criminal justice system,55 so the bar council prescribes: “prosecuting counsel should not attempt to obtain a conviction by all means at his command”.56 – although mervyn griffith-jones qc qualified this by warning middle temple students in 1973 “don’t act as second defending counsel as some young men seem to think they should do in order to be fair”.57 when, twelve years earlier, prosecuting penguin books, the publishers of lady chatterley’s lover, as crown counsel he lost the jury’s sympathy in his opening speech by asking them whether it was a book that a jury man would like his wife or servants – i stress the plural to read,58 he was presumably not anticipating his own later advice. while the defence lawyer’s role in criminal proceedings is essentially partisan,59 he is still required to place the interests of justice first.60 if his client confesses his guilt prior to trial, he is limited to testing the strength of the prosecution case. he must not ‘set up an affirmative case 53 brown v bennett (no 2) [2002] 1 wlr 713 [104] per neuberger j. 54 rondel v worsley 1967 qb at 502 per lord denning mr). in vernon v bosley (no 2) [1999] qb 18, a disclosure case thorpe lj said at p 64 “in general terms the balance between the advocate's duty to the client and the advocate's duty to the court must reflect evolutionary change within the civil justice system. if evolutionary shifts are necessary to match civil justice reforms they should in my judgment be towards strengthening the duty to the court”. 55 see the farquharson guidelines on the role and responsibilities of the prosecution advocate (published by the crown prosecution service). 56 the bar council’s written standards for the conduct of professional work para 10.1. 57 basic elements of advocacy: mervyn griffith-jones mc reading 1973, middle temple hall p 10. 58 c rolph the trial of lady chatterley: regina v penguin books limited (penguin, 1990). 59 r v puddick (1865) 4 f & f 497 at 499 per crompton j. a ashworth the criminal process (oxford, 2nd edn, 1998) p 69. 60 see generally, r v mcfadden (1975) 62 cr app r 187. a view from the bar 14 inconsistent with that confession nor call evidence in support of an alibi or otherwise which he knows to be untrue.61 subject to that proviso, as again the bar council prescribes: “it is the duty of counsel when defending an accused on a criminal charge to present to the court fearlessly and without regard to his personal interests.”62 counsel may be partially consoled, by the obiter dictum of lord justice james in r v mcfadden: “forensic techniques may vary from time to time but it is still possible to point to success at the bar based upon a reputation for courage in standing up to the judge when occasion demands.”63 it is, however, worth pausing for a moment to reflect upon the significance of this unusual constraint, and to imagine its impact if were transposed, mutatis mutandis, as we were once permitted, but no longer, to say in submissions to the court, to other arenas. we are a mere fortnight away from a general election in which politicians appealed to the verdict of the people, who gave what might reasonably be described as a reserved judgment, indeed a split decision. during the campaign and i make no partisan pointthere was a wealth of examples, in the language of old fashioned pleading too numerous to specify, of suppressio veri – economy with the truth if not of suggestio falsi. imagine for a moment how the democratic process would be transformed and improved if politicians were under a duty not to deform statistics, or to make full and frank disclosure, of material, say, relating to the national debt. imagine for a moment if cricketers walked, footballers refrained from diving, rugby players from committing that contradiction in terms the professional foul, or team managers in any game from berating match officials, how that too would purify the culture of sport. that barristers operate in this unusual way is not a testament, of course, to their inherent morality; they are cut from the same crooked timber of humanity as all of us. but as with the cab-rank rule, the duty to the court, the second pillar of the bar’s wisdom, is something rare and precious, to be preserved and protected. 61 written standards for the conduct of professional work paragraphs 12.1 and 12.4, though see the provocatively entitled a mcbride defending the guilty, truth and lies in the criminal courtroom (viking, 2010). 62 ditto. 63 (1975) 62 crim app rep at 187. the denning law journal 15 in my view the duty to the court, deeply embedded in the english common law tradition, no more acts as an undesirable restraint on the barrister’s freedom of action than do the queensberry rules on professional pugilists. indeed, as the same chief justice of australia said, it fortifies him in the exercise of an independent discretion or judgment in the conduct and management of a case.64 how far then should the barrister himself fortify the structures of independence? should a barrister be a cause lawyer or a case lawyer? autobiographies with titles such as memoirs of a radical advocate65 or even the passionate advocate,66 (more intriguing perhaps than even “72 years at the bar”), are accounts of the careers of advocates who, without violating the cab-rank rule, wear on their sleeve not only their hearts, but their minds. why do i prefer an alternative style in which the barrister’s views are as private as his vote, even accepting the price to be paid in erosion of civic commitment and even of moral sensibility? there are two reasons: one is actuality, one is appearance. the function of the advocate to give advice and then to conduct a case with detachment, his only passion being for success on behalf of his client. ideological, or emotional involvement in an outcome seems to me to risk infection of analysis and presentation. i am very conscious that when i am on the side of the case i prefer, i have to guard against an excess of the adrenalin – not an exogenous prohibited substance essential to the most effective advocacy. in 1976 i appeared in an unsuccessful effort to preserve st marylebone grammar school, the last of its kind in london, lord denning in one of his most elegiac passages was able to indicate how he would have wished to decide the case. “many will grieve” he said “when that which was great is passed away. but so it must be”.67 i grieved too, but necessarily in silence. more recently i fear that my dislike of the strasbourg inspired rule that the united kingdom cannot deport individuals, proven to be a threat to its own national security, to their country of origin because of concerns about risk of the treatment they would there receive may, despite my best endeavours, have percolated into my submissions before house of lords as a sub-text if not in the text itself. lord hope felt constrained to address full frontally the argument: 64 gianelli v wright cit sup. 65 by michael mansfield (bloomsbury, 2009). 66 lord gifford cit sup. 67 smith v ilea [1978] 1 all er 411 at p 418. a view from the bar 16 “surely the sooner they are got rid of the better. on their own heads be it if their extremist views expose them to the risk of ill-treatment when they got home”.68 and administered what touchstone called the “reproof valiant”.69 “that, however, is not the way the rule of law works. the lesson of history is that, by depriving people of its protection, because of their beliefs and behaviour, however obnoxious, leads to the disintegration of society.”70 clients, be they prisoners, parents or public authorities, may welcome the barrister’s sympathy as well as his skill, but they are, best served if they enjoy, without any sacrifice of courtesy on the barrister’s part, only the latter. the case he advances is after all his client’s not his own: that is why the advocate formally abstains from any expression of belief, and deploys the neutral concept of submission.71 but how he advances it must be the product of his own best dispassionate judgement. alastair campbell in his diaries records of jonathan sumption qc, briefed in the hutton enquiry: “it was absolutely clear that he was not taking something out “(sc: of the diaries) just because the prime minister would do,”72 and concluded: “what i admired about sumption most was that he didn’t seem to care what the press or public were thinking about this. he was totally focussed on the judge”.73 in circumstances of far less gravity i once had myself to tell my instructing solicitor that my client could promote his case with max clifford or with michael beloff but not with both. after, in wednesbury terms, taking all material considerations into account, the barrister must, as frank sinatra would have recommended, do it his way. 68 rb (algeria) v secretary of state for the home department [2009] 2 wlr 512. 69 as you like it: act v scene iv adopted by lord denning in ex p hook [1976] 1 wlr 1052 at 1053. 70 at [209-210]. 71 thornton cit sup 88. 72 a campbell the blair years (hutchinson, 2007) p 746. 73 754. the denning law journal 17 it is, of course, difficult for emotions to become engaged in a question of construction of an arcane provision of the hague visby rules, or even of the obscure outer boundaries of the volatile law of negligence. and although those who practice in the fields of criminal may from time to time develop a strong belief in a client’s innocence as those who practice in the field of family law may empathise with a client in custody disputes, the issues in those cases do not easily fit into some ideological template. it is the development of public law and its supplanting of private law as the most important element in appellate adjudication, and the concurrent migration of political issues from the legislature to the courts which expose the advocate more readily to the temptations of partisanship and more importantly to the perception of it. in his foreword to a leading commentary on human rights practice lord phillips, previous holder of the triple crown of master of the rolls, lord chief justice and senior law lord, and who has now – to mix the sporting metaphor achieved the grand slam by becoming first president of the supreme court – reminisced: “…when i practised at the bar, the staple diet of the house of lords consisted of civil law and tax appeals... judicial review was in its infancy.... how things have changed. baroness hale and we, her colleagues, devote the majority of our energies to public law. the human rights act 1998 bears significant responsibility for this change”.74 in this new environment i am particularly uncomfortable with the too ready association of the barrister with his clients’ case. in the highly sensitive and increasingly complex field of immigration law in which, in my far off days as a junior, i used regularly to practice, i noted the significant attachment of clients to lawyers of their own ethnic background, not always to the advantage of their claim,75 sometimes because their chosen champion had inadequate command of the language in which the court had to be addressed.76 i am uncomfortable too with the converse 74 lester a, pannick d & herberg j human rights law and practice (lexisnexis, 3rd edn, 2009). 75 the report of the lord chancellor’s advising committee on legal education and conduct (aclec) 1996 said in the uk immigration field barristers in order to delay deportation of a client may certify cases as appropriate for legal aid when they are clearly not. 76 the language problem has, it appears, not entirely evaporated. “i was called to the bar in 2006 and, as a british woman of indian descent, i can hardly be accused of racism. so i perhaps feel freer to speak than some of my colleagues. but we all see a view from the bar 18 position when women advocates are instructed to defend men on trial for rape – not on account of their forensic abilities but on the crude calculation that juries will be beguiled into thinking that no woman would defend someone who had committed an act of violence against members of their own sex. i do not believe that barristers of known left wing sympathies are necessarily based placed to defend striking trade unionists or those of publicised europhobic tendencies to represent ukip. a barrister who can appear at different times for the bnp and the socialist workers league, is not the forensic equivalent of the vicar of bray, but an adherent to the true professional faith. it is dangerous to adopt a mindset that virtue can only repose on the claimants’ side (or vice-versa). for it is not only the advocates for claimants but those for respondents too who are responsible for assisting in the construction or clarification of the law. barristers, after all, do not make law, they supply from either side of the court, the materials from which the judges can fulfil their own distinctive role. in an essay entitled “early days”77 lord justice sedley reminisces about his triumphs and disasters as a novice barrister, present at the creation of modern judicial review. it is an exhilarating and entertaining account of his role in seminal cases involving gypsies, low income tenants, immigrants and prisoners. in some of those i was myself involved; in the self-same case about control units, the product of a philosophy which was tough on crime, if not necessarily on its cause, being led by stephen at first instance, and leading him in the court of appeal, the result of an idiosyncratic silk selection by the then lord chancellor, lord hailsham.78 but it never occurred to me that i was, or could be thought to be, bent on advancing some radical political agenda. i was simply doing my daily job. lesser advocates than stephen can, if they always appear on the same side of the argument, cause confusion in the minds of those who try the case between the client and his advocate to the detriment of the former. it is surely axiomatic that a barrister’s arguments, whether mediated through advice or advocacy, will be given greater weight and respect if he is recognised by any test to be truly independent. the recent case of mcfarlane v relate avon limited79 provides a much publicised example of what i have in mind. a psycho-sexual therapist failed the same thing: the race card being played in recruitment to legal forms and to the crown prosecution service. in pubs near chambers you often hear tales of friends finding themselves up against lawyers who can barely speak english and are unable to grasp complex points of law”. s patel, the race card upsets the scales of justice , the sunday times, 28th february 2010. 77 in d dyzenhaus a simple common lawyer: essays in honour of michael taggart (hart, 2009). 78 william v home office no2 [1981] 1 all er 1211, 1982 all er 564. 79 case noa2/2009/2733. the denning law journal 19 in his claim for religious discrimination against his employers who had refused to exempt him from providing his services to same-sex couples. he was supported by lord carey, the former archbishop of canterbury, who in a witness statement invited the lord chief justice to establish a panel of judges designated to hear cases involving religious rights. the appellants’ advocate has a unique expertise in such cases, but as his website and record shows, is a legal crusader for evangelical religious values.80 a counsel not only more detached but seen to be more detached from the principle contended for, of allowing religious belief to qualify from the rigidities of anti-discrimination law, might have adopted a more nuanced approach, which eschewed the gratuitous and doomed plea for a specialist non-secular court, trenchantly dismissed by lord justice laws as “deeply inimical to the public interest”. those who cannot appreciate that there may be two sides to a question are not best placed to argue in favour of one. criminal law is not immune to this problem. members of the crown prosecution service, originally created so as to separate the functions of police and prosecutor have started to colonise frontline advocacy, with the consequent risk that as employees of a public authority they will become “prosecution minded and seen to be so”.81 the era is long since gone when it was possible to combine at one and the same time a full time practice at the bar with an active political career. but f.e. smith, a paradigm example of someone, who, a century ago, was able to do both, understood well the matters at stake. when criticised by his fellow conservatives for representing the liberal herbert samuel in the marconi trial he wrote to the times: “political issues constantly present themselves for decision in the law courts. in the overwhelming majority of cases juries have done their duty indifferently between the parties, treating their own views upon politics as immaterial. how long do you think this stage of things will endure if every conservative case is to be presented by conservative advocates and resisted by liberal advocates.”82 80 see diamond v mansfield & ors [2006] ewhc 3290 (qb) [paras 49 and 87] see too the minutes of the agm of the bar council of 16th june 2007. 81 inaugural speech of nicholas green qc, chairman of the bar council 7th december 2009. there is, and has been, a long and honourable tradition of crown counsel at courts such as the old bailey, but these were aware chosen from the independent bar, and at the conclusion of their tenure often promptly moved into the more lucrative areas of high profile defence work. 82 issue 17th june 1913. a view from the bar 20 the law officers face peculiar challenges. the then attorney general was reported to the bar council for investigation that his advice to the government on the legality of war in iraq, misjudged the distinction between his legal and political roles. that body, in receipt of opinions by both sir david and myself (provided in isolation from each other) rejected jurisdiction, leaving lord goldsmith to the no doubt tenderer mercies of the chilcott inquiry.83 it seems to me inevitable that the role of the attorney-general will have to be de-constructed, like that of the lord chancellor, and for analogous, if not identical, reasons of disentangling roles seen to be in tension. wearing two hats is less difficult than wearing three, but a single item of headgear is more becoming. there are institutional as well as ideological pressures on the independence of the bar. sir gavin lightman in a much discussed lecture “the civil justice system and legal profession – the challenges ahead”,84 somewhat like a former cabinet minister, freed from the burdens of collective responsibility, rediscovered the path of true principle for the profession he had left a decade before. he excoriated “the metamorphosis of the legal professions into legal business”85 and the consequent impact on the internal organisation of the bar. “the dominant philosophy today amongst many chambers”, he wrote “is to place the highest premium on keeping all available work for clients “in house”. indeed chambers have increasingly in all but name and law become partnerships between the members committed to the pursuant of the best interest of members. chambers have for practical purposes a corporate existence. chambers increasingly publish legal works as a chambers exercise to publicise the chambers and attract the work to the chambers. chambers have put into effect “rules” (enforced by chief executives and barristers’ clerks) that, when counsel has been instructed from amongst the members of the chambers, if that counsel requires a leader or junior, that leader or junior will be selected from the available pool in that chambers (mopping up local employment) rather than on the basis of talent or 83 in the event, the bar council concluded that it had no jurisdiction in relation to his position as a minister of the crown, though enjoying it in relation to his performance of his role as counsel in court or discreditable conduct in his personal life (a decision of 7 july 2005). 84 (2003) 42 civil justice quarterly 235. 85 243. see too in arthur hall, lord steyn at 682 “the world has changed since 1967. the practice of law has become more commercialised.” the denning law journal 21 price (the relevant considerations for the client) from the available pool of the bar as a whole.”86 there is, if not a ring, at least a tinkle of truth in what he says. for what is certain is that the perception of the bar from outside has altered. a decade ago,87 an issue arose whether a barrister who had been appointed an arbitrator by one party to the arbitration should be removed by the court on the ground that another barrister from the same chambers had been instructed in the arbitration that gave rise to justifiable doubts about the arbitrator’s impartiality. rix j, in rejecting the application,88 emphasised the uniqueness of the bar’s organisation and the fact that it provided a structural protection both for the interests of the client and for the interests of justice: “it is the essence of practice at the bar, as that barristers are all selfemployed. this is not a mere matter of form. on the contrary, practising barristers are prohibited by the rules of their profession from entering partnerships or accepting employment precisely in order to maintain the position where they can appear against or in front of one another. if it were otherwise, public access to the bar would be severely limited: each time a member of a set of chambers accepted instructions, he would debar any other member of those chambers, although independently practising self-employed barristers, from accepting instructions from any other party with a different interest in the dispute; nor would he be able to appear before a recorder, deputy judge or arbitrator in the same proceedings. this would be a severe limitation on the administration of justice in this country.”89 several years later an icsid tribunal, considering the converse situation that is, whether a qc could any longer act as counsel in a case where a member of the tribunal was from the same set, decided that what rix j had seen as a matter of substance was or would be seen as a matter of form. accepting that de jure barristers in a set of chambers were independent of each other, the tribunal ruled that they would be seen de facto as having a collective connotation.90 86 244. 87 laker airways inc v fls aerospace ltd and burnton [1999] 2 lloyds’s reports 45. 88 the test under the arbitration act 1996 was whether circumstances existed: section 24(1)(a). 89 at p 52: see too background information on the iba guidelines on conflicts of interest in international arbitration. 90 they held: a view from the bar 22 this warning flags are fluttering elsewhere. the court of arbitration for sport, whose adjectival law is substantially swiss, regard, in the words of its secretary-general, the notion of a member of a set of chambers acting as arbitrator when a party is represented by a member of the same set as “problematic”,91 although i have never in all my time at the bar expected, still less received, favours from judges whom i know well. the problem will be exacerbated if barristers exploit the permission newly given, to work in partnerships, or in both a self-employed and employed capacity at the same time (though not in the same case!),92 or to become managers in and hold shares in legal disciplinary practices (ldps), the more so if they participate in the alternative business structures (“abs”) contemplated by the same legislation which would allow them to work alongside both other legal professionals and non-lawyers – a development optimistically described by lord falconer as the legal system’s tesco. the influence of outside ownership, the promotion of profit over professional standards, and the commodification of legal issues, all threats inherent in these putative entities may yet cause us to mourn the eclipse of – at one and the same time to embroider the analogy the neighbourhood cornershop and harrods. similar concerns are generated by the serious commercial pressures on substantial sections of the bar. within what the chairman of the bar has recently called “an increasingly broad church’’93 there are in fact many bars. “the objection in this case is not predicated on any actual lack of independence or impartiality, but on apprehensions of the appearance of impropriety. in the interest of the legitimacy of these proceedings, the arbitrators consider that the claimant is entitled to make this objection and that it is well founded.” but mitigated this by adding: “the tribunal does not believe there is a hard-and-fast rule to the effect that barristers from the same chambers are always precluded from being involved as, respectfully, counsel and arbitrator in the same cases. equally, however, there is no absolute rule to opposite effect. the justification of an apprehension of partiality depends on all relevant circumstances.”. indeed in 2010 a tribunal acting within the same jurisdiction affirmed the power to exclude counsel, but declined to do so, and distinguished the earlier case http://ita.law.uvic.ca/documents/rompetrolparticipation.pdf last accessed 2nd june 2011. 91 a letter sent by him to me when a party represented by a member of my chambers sought to appoint me as arbitrator. 92 the legal services board approved the bar standards board applications designed to relax provisions in the code of conduct for barristers working practices. counsel: may 2010, bsb news iv. the fons et origo of these developments was the legal services act 2007. 93 chairman’s report january 2010. the denning law journal 23 those who depend upon public funds, in particular in the areas of criminal and family law, suffer, if not death, at least damage by a thousand cuts. freeze has been followed by fall. judicial review of the latest pre-election government decision was briefly on the agenda.94 the outgoing minister for justice retorted by identifying, with less than complete accuracy, the top legal aid earners for 2008-2009 as if the income of the few was characteristic of the income of the many. the hourly earnings of the majority were, in a counter-attack, described by the chairman of the criminal bar association as less than those of a garage mechanic.95 this led predictably to an amusing, if unedifying correspondence in the letter column of the times as to which provided a more valuable social service. the real victims, of course, will be the most vulnerable members of society who are not, i hasten to add, the barristers themselves to whom the barristers, distracted by a wish, in no way dishonourable, to receive a reasonable income for demanding work will increasingly be inhibited in their ability to provide proper representation, and may be even compelled to avail themselves of the exit route permitted by the cab-rank rule itself. the palliative of conditional fee agreements, shifting the burden of financing of many types of litigation from state to persons, natural or legal,96 and now available in all except criminal and specified family proceedings, confers on barristers, as sir gavin lightman pointed out: “a financial interest in the outcome of litigation in which they are engaged which is calculated to create unacceptable conflicts of interest and duty and creates unacceptable pressures to win.”97 in this uncertain financial climate baroness deech, the chairman of the bsb, has said: “we have to negotiate a path between the scylla of fusion and the charybdis of attrition of the bar.”98 in identifying the perils on that path i have sought tonight to make a summary case for the survival of a professional, independent in mind, spirit and appearance, and a member of a profession itself independent, [though not unaccountable]; capable when called upon, of defending individual rights against the power of an ever burgeoning state and its sundry satrapies, but 94 counsel may 2010 p 4. 95 letter the times march 29th 2010. 96 see walker and walker, above n 9 pp 400-401, 525-527. 97 above n 86, at p 243. 98 speech to the young bar association october 2nd 2009. a view from the bar 24 equally of representing the state when it seeks to enforce the public interest against those who act in a way inimical to it. in a surface sense everything has changed. in a subterranean one nothing has or should. the environment in which the bar operates at any one time may be ephemeral: but its values must be eternal. in his book the end of lawyers?99 richard susskind, a proselytiser for information technology explains, albeit in a footnote. “i reiterate the question mark in the title is intended to confirm that this book is an inquiry into whether lawyers have a future rather than a prediction of their demise”.100 and, equally mercifully, while prophesying that: “lawyers who are unwilling to change their working practices and extend their range of services, will, in the coming decade, struggle to survive”,101 adds “dispute avoidance and online dispute resolution will chip away at some of this domain, but i do not see these as eliminating advocacy entirely”.102 so i end by considering the moral issue created by the art of advocacy itself.103 a recent consultation paper by a trio of legal regulators described advocacy as “a fundamental pillar of the justice system”,104 as certainly it is, viewed from a national perspective. lord hoffmann noted that: 99 r susskind the end of lawyers?: rethinking the nature of legal services (oup, 2008). 100 ibid p 269 n1. 101 above n99, p 269. 102 above n99, p 274. 103 see ridalgh v horsefield [1994] ch 205 at 236 “advocacy is more an art than a science. it cannot be conducted according to formulae. individuals differ in their style and approach”. sir thomas bingham mr at p 236. see “advocacy as art” michael beloff qc, the margaret howard lecture, oxford 2000. “advocacy: a craft under threat” michael beloff qc, “the first hans espeland lecture” oslo 2002. 104 joint consultation by the sra ilex professional standards and the bsb. “advocacy standards” 2009 para 2. the denning law journal 25 “the substantial orality of the english system of trial and appellate procedure means that the judges rely heavily upon the advocates appearing before them for a fair presentation of the facts and adequate instruction in the law... the court procedures of europe and the united states, for example, lack the predominantly oral character of litigation in the united kingdom”.105 it is regarded as axiomatic that the services of a professional advocate are beneficial: whether of cicero, the hero of robert harris’ projected trilogy, of william murray, later lord mansfield, of whom alexander pope hymned: “graced as thou art with all the power of words, so known, so honoured in the house of lords” – a couplet which have required modification had the supreme court been established 300 years ago – and which was parodied by the actor colley cibber, a victim of murray’s eloquence, in a style worthy of william mcgonagle: “persuasion tips his tongue whene’er he talks. and he has chambers in the kings bench walks”. of clarence darrow who in the scopes trial, proved a more doughty destroyer of creationism than even richard dawkins, and was memorably played by spencer tracy in the film inherit the wind, or of modern giants such as sir sidney kentridge or the late george carman. there is much nice learning on whether and when natural justice requires that barristers’ use be permitted or required. 106 indeed the principle of equality of arms, inherent in the right to a fair hearing guaranteed by article 6 of the european convention on human rights, requires that everyone who is a party to proceedings must have a 105 arthur hall at 692 and 695. 106 when governors had refused a teacher accused of sexual misconduct with a pupil legal representation at a disciplinary hearing, laws lj observed that the outcome of the proceedings could irretrievably prejudice his ability to practice his profession and continued:“within the proper confines of the evidence, a professional advocate might properly make a great deal of difference to the flavour and emphasis of the governors conclusions, and, if there were any contest as to the primary facts to that too”. the governor of x school and the queen on the application of g and y city council [2010] ewca civ 1 at para 48. a view from the bar 26 reasonable opportunity of presenting his case to the court under condition which do not place him at a substantial disadvantage vis à vis his opponent.107 but equality of arms does not mandate parity of representation. it has been held that a fair trial does not necessarily entail representation by a qc merely because the crown is represented by one.108 “the importance” said lord woolf “is to have an advocate, whether he be a barrister or solicitor, who can ensure that a defendant’s defence is properly and adequately placed before the court”.109 up to a point lord woolf... for there are but two possibilities. either the relative quality of representation has no impact on the outcome or it does. the first possibility is at odds with everyday experience in the courts. in another context mr justice megarry wisely said: “as everybody who has had anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not”.110 claims in civil cases should not reach the stage of requiring adjudication by judge or arbitrator unless there was at least some scope for more than one outcome. prosecutions would, at any rate should, not be brought or pleas of not guilty entered unless there is a measure of uncertainty, however, small about the verdict. it is precisely to alter the odds that particular advocates are selected. a senior silk at the top of his game is worth as much to a legal, as a rooney, a ronaldo or a messi is to a football team. let me call two witnesses from north and south of the equator. first again, sir gavin lightman who said: “a party’s performance at the trial very much turns on the investment made by the respective parties in the litigation: at all stages in the litigation money talks loud and clear. the human right to equality of arms has little, if any, meaning or practical effect in this context and 107 in ab slovakia the ecthr held that by proceeding in the applicant’s absence and, by failing, prior to that, to take a formal decision on her request for the appointment of a lawyer, the bratislava regional court deprived the applicant of the opportunity to present her case under conditions of equality vis a vis a defendant. 108 r v lea, shatwell & attorney general’s reference no 82 of 2000 [2002] ewca crim 215. 109 lord woolf at para 14. 110 john v rees [1970] ch 345 at 402. the denning law journal 27 the judge, however fair-minded and interventionist, has limited scope to redress the balance. a litigant purchases the quality of justice he can afford. the quality of solicitors and counsel varies as does the quality of wine from “unfit to drink” to vintage. vintage tends to be very expensive beyond the means of the ordinary litigant. most must be satisfied with “plonk”. a failure of advice at the first stage is calculated to cause irreversible harm. the prospects of success of a case very much turn on the quality or lack of quality of preparation for trial. cases are won and lost by reason of the quality of representation at the trial: hence the extravagant fees paid to litigation lawyers. tell it not in gath but the scales of justice favour those who can afford to buy it.”111 second, if more succinctly michael kirby the peripatetic former antipodean high court judge who wrote: “in an adversarial system such as exists in the uk and australia, the party that argues most persuasively will often win the day.”112 it is not always the case that he who pays wins: but it is certainly the case that whereas all barristers are equal, some are more equal than others. geoffrey robertson qc entitled his interim autobiography “the justice game”.113 contests between unevenly matched contestants may be acceptable in a game, but not when justice is the intended trophy. it would be little consolation to the clients of jerry guerinot, twenty of whose clients have been sentenced to death in texas, that vanessa d. gilmore, the federal judge in houston, in turning down an appeal by a british woman, linda carty, convicted of murder which was grounded on guerinot’s incompetence in handling of her case said without conscious irony “the constitution does not require perfection in trial representation.”114 there may be a hollow in the crown of the adversarial system but how it is to be filled, in the real, as distinct from the ideal world, i confess do not know. but let me not conclude on so dispiriting a note! in metcalf v mardell115 lord hobhouse said: 111 cjq 238. 112 the hon michael kirby “the common law and international law a dynamic contemporary dialogue” (2010) 30 legal studies 55. 113 above n 30. 114 new york times, may 18th 2010. 115 [2001] 1 ac 120. a view from the bar 28 “the judicial system exists to administer justice and it is integral to such a system that it provides within a society a means by which rights, obligations and liabilities can be recognised and given effect to in accordance with the law and disputes, justifies (and efficiently) resolved. the role of the independent advocate is central to achieving this outcome”.116 so in a lecture which is inevitably decked out in borrowed plumes, i hope i may be forgiven for plagiarising myself with a tail feather: “they also serve who only stand and speak”.117 116 at p 149. 117 m beloff qc “judicial review 2000 – a prophetic odyssey” (1995) 58 mlr 143. for the purposes of right to self-determination, how does one define people in context of kashmir 241 the denning law journal 2013 vol 25 pp 241-254 case commentary piercing the veil – a dodo of a doctrine? alistair alcock  in the course of the 2012/13 legal year, the supreme court has had to consider the doctrine of piercing the corporate veil twice, in vtb capital plc v nutritek international corpn (vtb), 1 and more recently in prest v petrodel resources ltd (prest) 2 on both occasions, the court was in effect asked to remove the whole doctrine from english law, but narrowly failed to do so, begging the question, does the doctrine really serve any purpose now? let me start with prest. 1. prest and the lower courts the case involved contentious divorce proceedings and ancillary relief. at first instance, 3 moylan j held that the matrimonial home, legally owned by one of the husband‟s companies, was held on trust beneficially for the husband and should be transferred to the wife. this was not appealed, but moylan j went on to hold that seven other properties held by other companies be likewise transferred to support lump sum and periodical payments. three different arguments were advanced for such a transfer, namely that: 1. the corporate veil should be pierced as a matter of general principle and the properties treated as the husband‟s so that they could be transferred to the wife under s 24(1)(a) of the matrimonial causes act 1972; 2. the wording of s 24(1)(a) allowing the transfer property “being property to which the first mentioned party is entitled in possession or reversion” should be interpreted as giving a special statutory power to pierce the veil and effect the transfer; or  professor alistair alcock, dean of law and deputy vice-chancellor, university of buckingham. 1 [2013] 2 wlr 398, sc(e). 2 [2013] 3 wlr 1, sc(e). 3 sub nom prest v prest [2011] ewhc 2956 (fam). case commentary 242 3. the properties (like the matrimonial home) were held beneficially by the companies on trust for the husband and s 24(1)(a) could be used without piercing the veil. moylan j rejected 1., holding that generally the separate legal personality of the company could not be disregarded unless it was being abused for a purpose that was in some relevant respect improper. he also found under 3., that the houses were not held beneficially for the husband, in part because he found under 2., that despite its wording, s 24(1)(a) did give a wide statutory jurisdiction to pierce the corporate veil. in the court of appeal, 4 thorpe lj agreed with moylan j, but the majority judgment given by rimer lj, rejected not just this curious interpretation of s 24(1)(a), but also any piercing of the corporate veil and recognition of any beneficial ownership by the husband, leaving the wife without the seven properties to support the lump sum and periodical payments order. 2. prest and the supreme court in a supreme court of seven justices, all rejected moylan j‟s curious interpretation of s 24(1)(a) and any piercing of the corporate veil, but did find, on the specific facts taken with a set of adverse inferences based on the husband‟s obstructive behaviour, that the seven properties were held beneficially on trust for the husband. the interesting use of adverse inferences has been considered elsewhere. 5 this article concentrates on where prest has left the general doctrine of piercing the corporate veil. at all three levels, all the judges rejected any such doctrine applying to the facts in prest, for as lord sumption jsc concluded: 6 “[the properties] were vested in the companies long before the marriage broke up. whatever the husband‟s reasons for organising things in that way, there is no evidence that he was seeking to avoid any obligation which is relevant in these proceedings. the judge found that his purpose was „wealth protection and the avoidance of tax.”‟ 7 lord sumption gave the leading judgment of the court, but on the doctrine of piercing the corporate veil, care must be taken; not only because as lord walker of gestingthorpe pointed out, having decided that the properties 4 sub nom prest v prest [2013] 2 wlr 557, ca. 5 for example, (2013) 163 nlj 7566 at 11. 6 [2013] 3 wlr 1, sc(e) at para 36. 7 [2011] ewhc 2956 (fam) at para 218. the denning law journal 243 were held beneficially by the husband, it was “not strictly necessary for this court to add further comments on the vexed question of piercing the corporate veil;” 8 but also because as lord clarke of stone-cum-ebony jsc commented, the concealment-evasion distinction at the heart of lord sumption‟s judgment “was not a distinction that was discussed in the course of argument.” 9 indeed, none of the other six justices of the supreme court agreed with lord sumption without some qualifications, falling perhaps into two groups, lords mance and clarke jjsc following lord neuberger psc, and lord wilson jsc and to a lesser extent lord walker following baroness hale jsc. first, lord sumption excluded, as not relevant to determine the english doctrine of piercing the veil, all the cases where: 10 1. it could be said that the corporate veil was being circumvented by a normal legal principle, for example: the controller may be personally liable, generally in addition to the company, for something that he has done as its agent or as a joint actor. 11 property legally vested in a company may belong beneficially to the controller... 12 2. specific statutes required group companies to be treated as one, eg group accounts and “firms” for the purposes of competition law; 3. equitable remedies, like injunctions or specific performance, were “available to compel the controller whose legal personality is engaged to exercise his control in a particular way”; and 4. re barcelona traction, light and power co ltd 13 was followed, it being a decision of the international court of justice based on the domestic civil law jurisdictions involved which, unlike the common law in england, allowed the corporate veil to be pierced for abuse of rights. nevertheless, on this last point, lord sumption did recognise that english law does have the general principle encapsulated by lord denning (then 8 [2013] 3 wlr 1, sc(e) at para 105. 9 ibid at para 103. 10 ibid at paras 16 and 17. 11 chandler v cape plc [2012] 3 all er 640, ca, for commentary see gore-browne on companies, special release 2013, p sr1. 12 the finding in prest itself. 13 [1970] icj rep 3. case commentary 244 denning lj) as “fraud unravels everything.” 14 lord sumption maintained “that there are limited circumstances in which the law treats the use of a company as a means of evading the law as dishonest for this purpose.” 15 3. the precedents in a review of the precedents, lord sumption noted that following the house of lords‟ (albeit scottish) decision in woolfson v strathclyde regional council 16 and the court of appeal decision in adams v cape industries plc, 17 sir andrew morritt v-c in trustor ab v smallbone (no 2) 18 had concluded that there were only two overlapping circumstances when the corporate veil could be pierced. they were where the company was: 1. a “façade or sham”; or 2. involved in some impropriety “linked to the use of the company structure to avoid or conceal liability for that impropriety.” 19 what was certainly determined in all three cases was that “the court is not free to disregard the principle of salomon v a salomon & co ltd 20 merely because it considers that justice requires it.” 21 nevertheless, in their efforts to ensure effective ancillary relief, this was exactly what some judges of the family division continued to do. 22 these judges relied on the words, albeit obiter, of cummings-bruce and dillon ljj in nicholas v nicholas, 23 where they suggested that the only reason that they had not pierced the corporate veil to allow company property to be transferred for ancillary relief was because the company, although controlled by the husband, had independent minority shareholders who would be adversely affected. at least one chancery division judge, munby j, in cases like a v a 24 and ben hashem v al shayif, 25 rejected the approach of the family division. in 14 lazarus estates ltd v beasley [1956] 1 qb 702, ca at p 712. 15 [2013] 3 wlr 1, sc(e) at para 18. 16 1978 sc (hl) 90. 17 [1990] ch 433, ca. 18 [2001] 1 wlr 1177. 19 ibid at para 22. 20 [1897] ac 22, hl(e). 21 adams v cape industries plc [1990] ch 433, ca per slade lj at p 546. 22 for example, see green v green [1993] 1 flr 326; mubarak v mubarak [2001] 1 flr 673; kremen v agrest (no 2) [2011] 2 flr 490. 23 [1984] flr 285, ca at pp 287 and 292. 24 [2007] 2 flr 467. 25 [2009] 1 flr 115. the denning law journal 245 the latter case, he merged the two circumstances accepted by sir andrew morritt v-c into one when he formulated six principles behind piercing the corporate veil, 26 namely: 1. ownership and control of a company were not of themselves enough to justify piercing; 2. nor was merely being in the interests of justice to do it, even where third party interests were not affected; 3. there must have been some impropriety; 4. that impropriety must have been “linked to the use of the company structure to avoid or conceal liability;” 27 5. there must have been both control by the wrongdoers and impropriety, ie misuse by them as a device or façade to conceal their wrongdoing; but 6. the company may be a façade, even if not originally incorporated with deception in mind, provided it was used for deception at the time of the relevant transactions. this narrow approach was adopted by the court of appeal in vtb with two further qualifications: 1. it was not necessary before piercing the corporate veil to show that there was no other remedy available; but 2. it was necessary to show that “the relevant wrongdoing must be in the nature of an independent wrong that involves the fraudulent or dishonest misuse of the corporate personality of the company for the purpose of concealing the true facts.” 28 4. vtb and the supreme court the supreme court upheld the court of appeal‟s decision in vtb 29 but, in delivering its judgment, lord neuberger was not prepared in an interlocutory 26 ibid at paras 159 to 164. 27 trustor ab v smallbone (no 2) [2001] 1 wlr 1177, per sir andrew morritt v-c at para 22. 28 [2012] 2 bclc 525, ca at paras 79 and 80. 29 [2013] 2 wlr 398, sc(e). case commentary 246 action to go the one step further, proposed by counsel for one of the defendant companies, and kill off the whole idea of there being a separate doctrine of piercing the corporate veil. lord neuberger summarised this argument as follows: 30 “mr lazarus argued that in all, or at least almost all, the cases where the principle was actually applied, it was either common ground that the principle existed… 31 and/or the result achieved by piercing the veil of incorporation could have been achieved by a less controversial route – for instance, through the law of agency… 32 through statutory interpretation… 33 or on the basis that… money due to an individual which he directs to his company is treated as received by him.” 34 one senses that lord neuberger was nearly convinced, 35 but because he was clear that the contractual liability of a company could not be extended to a controlling shareholder as proposed in vtb, on the more general doctrine he concluded that: 36 “... it is unnecessary and inappropriate to resolve the issue of whether we should decide that, unless any statute relied on in a particular case expressly or impliedly provides otherwise, the court cannot pierce the veil of incorporation.” having ducked the issue once, he did tackle it in prest, but before examining his views, it is necessary to return to lord sumption‟s judgment on which lord neuberger‟s is built. 5. lord sumption’s views 30 ibid at para 125. 31 gilford motors v horne [1933] ch 935, ca; re h [1996] 2 bclc 500, ca; trustor ab v smallbone (no 2) [2001] 1 wlr 1177. 32 in re darby, ex p brougham [1911] 1 kb 95; gilford motors v horne [1933] ch 935, ca; jones v lipman [1962] 1 wlr 832. 33 daimler company ltd v continental tyre and rubber company (great britain) ltd [1916] 2 ac 307; merchandise transport ltd v british transport commission [1962] 2 qb 173; wood preservation ltd v prior [1969] 1 wlr 1007; re a company [2000] 2 bclc 734. 34 goss v chilcott [1996] ac 788; gencor acp ltd v dalby [2000] 2 bclc 734;trustor ab v smallbone (no 2) [2001] 1 wlr 1177. 35 [2013] 2 wlr 398, sc(e) at paras 127 to 129. 36 ibid at para 130. the denning law journal 247 having reviewed the precedents discussed above, lord sumption concluded in prest that: 37 “… the consensus that there are circumstances in which the court may pierce the corporate veil is impressive… i think that the recognition of a limited power to pierce the corporate veil in carefully defined circumstances is necessary if the law is not to be disarmed in the face of abuse.” the carefully defined circumstances, according to lord sumption, turned on the distinction between: 1. the concealment principle “…the interposition if a company or… companies so as to conceal the identity of the real actors,” and 2. the evasion principle “…if there is a legal right against the person in control… and the company is interposed… [to] defeat the right or frustrate its enforcement.” 38 only evasion requires piercing of the corporate veil. lord sumption then illustrated this distinction with two cases, gilford motor co ltd v horne (gilford) 39 and jones v lipman (jones). 40 in gilford mr horne had entered into a restrictive covenant not to conduct a competing business, but then set up a company under his wife‟s apparent control to conduct such a business. the court of appeal granted an injunction against mr horne and against the new company. lord sumption held that the injunction against mr horne was on the concealment principle, but that against the company was true piercing of the veil under the evasion principle, though he conceded that the injunction against the company could have been: 41 “… on the ground that mr horne‟s knowledge was to be imputed to the company so as to make the latter‟s conduct unconscionable or tortious… [also] it does not follow that [the company] was to be identified with mr horne for any other purpose. mr horne‟s personal creditors would not, for example, have been entitled… to enforce their claims against the assets of the company.” 37 [2013] 3 wlr 1, sc(e) at para 27. 38 ibid at para28. 39 [1933] ch 935, ca. 40 [1962] 1 wlr 832. 41 [2013] 3 wlr 1, sc(e) at para 29. case commentary 248 likewise, in jones, mr lipman had entered into a sale of a property, but to defeat an order of specific performance, then sold the property to a company controlled by himself. specific performance was ordered against mr lipman (the concealment principle) and the company (the evasion principle), the latter leaving a bank the creditor of the company for half the purchase price of the property but with the company now without the property. 42 so far, it might be thought that lord sumption‟s distinction was no more than whether the action was being brought against the controller (concealment) or the company (evasion). but in two further cases, lord sumption made it clear that actions against the companies fell within concealment, not evasion. in gencor acp ltd v dalby 43 mr dalby, a director of the plaintiff, had directed payments from a third party to be paid to a company controlled by himself. rimer j, in ordering the company to be accountable for the sums to the plaintiff, as well as mr dalby, claimed to be piercing the corporate veil, but lord sumption maintained that this was not the case as the company was clearly just a nominee of mr dalby and as such independently liable to account for the moneys and so the case only involved concealment. 44 in trustor ab v smallbone (no 2) 45 again a company had been set up to receive illegitimate moneys on behalf of mr smallbone as his agent or nominee and was directly liable as such and so again nlord sumption considered that this was only concealment. 46 lord sumption concluded that: 47 “... there is a limited principle of english law which applies when a person is under an existing legal obligation or liability or subject to an existing legal restriction which he deliberately evades or whose enforcement he deliberately frustrates by interposing a company under his control… the principle is properly described as a limited one, because in almost every case where the test is satisfied, the facts will in practice disclose a legal relationship between the company and its controller which will make it unnecessary to pierce the corporate veil… i consider that if it is not necessary to pierce the corporate veil, it is not appropriate to do so.” 42 ibid at para 30. 43 [2000] 2 bclc 734. 44 [2013] 3 wlr 1, sc(e) at para 31. 45 [2001] 1 wlr 46 [2013] 3 wlr 1, sc(e) at para 32. 47 ibid at paras 33 and 35. the denning law journal 249 6. lord neuberger’s views lord neuberger reduced lord sumption‟s review of the history of piercing the corporate veil to six findings: 48 1. the international court of justice recognised the doctrine but only in the context of civil law systems. 49 2. there were judgments based on the doctrine in family cases, but its application in these cases was unsound. 50 3. there were two cases outside the family law context, gilford and jones which laid the ground for the doctrine. 51 4. there were two subsequent cases in which it was assumed the doctrine existed, but they were merely obiter observations. 52 5. the court of appeal and high court had subsequently assumed the doctrine does exist. 53 6. in only two of those cases had the doctrine been relied on, and that was illegitimate as they could have been decided without recourse to the doctrine. 54 although lord sumption left gilford and jones as cases of evasion relying on the doctrine, lord neuberger determined that the injunction against the company in gilford could easily have been justified on the basis that the company was horne‟s agent or nominee (as indeed any natural person, like horne‟s wife, could have been). indeed, lord neuberger pointed out that no member of the court of appeal in gilford “thought that he was making new 48 ibid at para 68. 49 re barcelona traction, light and power co ltd [1970] icj rep 3. 50 based on obiter dicta in nicholas v nicholas [1984] flr 285, ca. 51 gilford motor co ltd v horne [1933] ch 935, ca; jones v lipman [1962] 1 wlr 832. 52 woolfson v strathclyde regional council 1978 sc (hl) 90, hl(sc); adams v cape industries plc [1990] ch 433, ca. 53 for example, vtb [2012] 2 bclc 525, ca and alliance bank jsc v aquanta corpn [2013] 1 lloyd‟s rep 175, ca. 54 gencor acp ltd v dalby [2000] 2 bclc 734; trustor ab v smallbone (no 2) [2001] 1 wlr 1177. case commentary 250 law, let alone cutting into the well established and simple principle laid down in salomon.” 55 as for jones, lord neuberger thought the injunction against the company unnecessary: 56 “an order for specific performance would have required lipman not merely to convey the property in question to the plaintiffs, but to do everything which was reasonably in his power to ensure that the property was so conveyed… lipman could have compelled the company to convey the property to the plaintiffs (on the basis that he would have to account to the company for the purchase price, which would have ensured that the bank was in no way prejudiced).” not only is this a more elegant solution than lord sumption‟s, avoiding as it does the problem of the third party rights of the bank, it should have been lord sumption‟s, since he had already highlighted early in his judgment, that “equitable remedies, such as an injunction or specific performance, may be available to compel the controller whose personal legal responsibility is engaged to exercise his control in a particular way.” 57 as lord neuberger agreed with lord sumption 58 that the courts could only pierce the corporate veil “when all other, more conventional, remedies have been proved to be of no assistance,” 59 he was forced to conclude that: the history of the doctrine… is… a series of decisions, each of which can be put into one of three categories, namely: 60 1. decisions in which it was assumed that the doctrine existed, but it was rightly concluded that it did not apply on the facts; 2. decisions in which it was assumed that the doctrine existed, and it was wrongly concluded that it applied on the facts; and 3. decisions in which it was assumed that the doctrine existed and it was applied to the facts, but where the result could have been arrived at on some other, conventional, legal basis, and therefore it was wrongly concluded that it applied. 55 [2013] 3 wlr 1, sc(e) at para 71. 56 ibid at para 72. 57 ibid at para 16. 58 contrary to the court of appeal in vtb [2013] 2 wlr 557, ca at para 79. 59 [2013] 3 wlr 1 sc(e) at para 62. 60 ibid at para 74. the denning law journal 251 having established that there had been no cases in the uk that needed to rely on the doctrine, and after reviewing the chaotic judicial and academic views on the doctrine across the common law world, 61 one would have expected lord neuberger finally to have decided that the doctrine was at least otiose if not dead. instead he concluded that: 62 “...it would be wrong to discard a doctrine which, while it has been criticised by judges and academics, has been generally assumed to exist in all common law jurisdictions… i am persuaded by [lord sumption‟s] formulation in para 35, namely that the doctrine should only be invoked where „a person is under an existing legal obligation or liability or subject to an existing legal restriction which he deliberately evades or whose enforcement he deliberately frustrates by interposing a company under his control.”‟ nevertheless, lord neuberger seems to have remained conscious of the illogicality of this position, and went on really to deny the separate existence of the doctrine: 63 “in so far as it is based on “fraud unravels everything”… the formulation simply involves the invocation of a well-established principle… [it] is not, on analysis, a statement about piercing the corporate veil at all. thus it would presumably apply equally to a person who transfers assets to a spouse or civil partner, rather than to a company. further… it could probably be analysed as being based on agency or trusteeship especially in the light of the words “under his control”. however, if either or both those points were correct, it would not undermine lord sumption jsc‟s characterisation of the doctrine: it would, if anything, serve to confirm the existence of the doctrine, albeit, as an aspect of a more conventional principle.” 7. baroness hale’s views of the judgments on the doctrine of piercing the corporate veil, the most curious is lady hale‟s. she draws the distinction between where a remedy is being sought against a controlling shareholder and where it is being sought against the company. 64 however, she then applies the doctrine the wrong way 61 ibid at paras 75 to 78. 62 ibid at paras 79 and 80. 63 ibid at para 83. 64 ibid at para 92; this is a distinction i also draw in gore-browne on companies, chapter 7 at [15]. case commentary 252 around. in gilford and in jones, there was no doubt that the controlling shareholders had broken their contracts, and in stone & rolls v moore stephens (stone & rolls) 65 had the fraudulent controlling shareholder been bringing a claim against the auditors, he would clearly have faced the defence of ex turpi causa. the problems arose because the remedy was being sought (or defence raised) against the company. lady hale may be right to say: 66 “… where it is sought to convert the personal liability of the owner or controller into a liability of the company, it is usually more appropriate to rely on the concepts of agency and of the „directing mind‟.” however, if the doctrine does not have a place in the rules of attribution, it really has no place at all and like her fellow judges, lady hale was not prepared to go that far, doubting indeed that: “… it is possible to classify all the cases in which the courts have been or should be prepared to disregard the separate personality of a company neatly into cases of either concealment or evasion.” 67 8. lord walker’s views after pointing out that all commentary on the doctrine of piercing the corporate veil in prest was obiter, lord walker came the closest to denying the existence of the doctrine altogether. he considered all the cases, with the possible exception of the house of lords decision in stone & rolls, 68 could be explained by the application of other legal principles. 69 9. conclusion in the end, all seven justice of the supreme court held that: 1. the doctrine of piercing the corporate veil was not necessary to decide the case and could not be applied on the facts; 2. nevertheless, the doctrine still existed (lord walker most doubtfully); 65 [2009] ac 1391, hl(e). 66 [2013] 3 wlr 1 sc(e) at para 92. 67 ibid at para 92. 68 [2009] ac 1391, hl(e). 69 [2013] 3 wlr 1, sc(e) at para 106. the denning law journal 253 3. but it might just be a particular application in the corporate context of a more general principle that “fraud unravels everything” or of other legal principles; 70 and 4. that it should only apply if no other basis for a remedy existed. all seven judges struggled to find examples where the doctrine had actually been necessary. lords sumption and neuberger did agree on the formulation that the doctrine should only be invoked where: 71 “a person is under an existing legal obligation or liability or subject to an existing legal restriction which he deliberately evades or whose enforcement he deliberately frustrates by interposing a company under his control.” this formulation does seem to have been accepted by all but lord walker, although lords mance and clarke were reluctant completely to close off the possibility of other circumstances in which the doctrine might be used. 72 pace lady hale, the formulation, particularly if based on the evasion/concealment distinction, seems only to apply to actions, or defences raised, against the company, ie is part of the rules of attribution, 73 and herein may lie the answer to the lingering death of the doctrine. just as the rule in turquand 74 developed against the background of the ultra vires rule, constructive notice, and a far from developed application of agency rules in the corporate context, so the doctrine of piercing the corporate veil was born against a background of restrictive rules of attribution. now that other legal principles have developed, should both of these two be killed off like the dodo? certainly in the case of piercing the corporate veil lord walker seemed to think so. as he pointed out, all the past cases might be explained by: 75 “… a statutory provision, or from joint liability in tort, or from the law of unjust enrichment, or from principles of equity and the law of 70 lady hale put it rather more vaguely as “companies should not be allowed to take unconscionable advantage of the people with whom they do business.” [2013] 3 wlr 1, sc(e). 71 ibid at paras 35 and 81. 72 [2013] 3 wlr 1, sc(e), at paras 100 and 103. 73 as explained by lord hoffman in meridian global funds management asia ltd v securities commission [1995] 2 bclc 116, pc. 74 royal british bank v turquand (1856) 6 e&b 327. 75 [2013] 3 wlr 1, sc(e) at para 106. case commentary 254 trusts… [or] from the potency of an injunction or other court order in binding third parties who are aware of its terms.” even the one possible exception that lord walker considered might need the doctrine, stone & rolls, is interesting. if anything, the majority of the house of lords in that case came to a very restrictive view of when the wrongs of a controlling shareholder might be attributed to the company to raise the defence of ex turpi causa against the company. they were only prepared to allow such attribution in the case of “one man” companies with no innocent minority shareholders affected. this was the same concern raised in the now discredited obiter dicta of cummings-bruce and dillon ljj in nicholas v nicholas. 76 does this mean that if the doctrine of piercing the corporate veil is to survive, far from it being to cover “a small residual category” of cases, 77 as suggested by the supreme court in prest, it should be to act as a restraint on the application of all the other legal principles that might give rise to the attribution to a company of the faults of its controlling shareholder, at least if those principles adversely affect minority shareholders and even creditors as suggested by the house of lords in stone & rolls? 76 [1984] flr 285, ca at pp 287 and 292. 77 [2013] 3 wlr 1, sc(e), per lord walker at para 106. unincorporated associations: property holding, charitable purposes and dissolution the denning law journal 107 denning law journal 2009 vol 21 pp 107-118 case commentary unincorporated associations: property holding, charitable purposes and dissolution hanchett-stamford v (1) hm attorney-general and (2) dr william johnston jordan [2008] ewhc 330 (ch), 2008 wl 1968855 james brown∗ introduction the decision of mr justice lewison in hanchett-stamford v hm attorney general and dr william johnston jordan1 provides us with a useful analysis of the legal principles relating to the thorny issues of: (i) how unincorporated associations hold property; (ii) the applicability of the law of charities to unincorporated associations and (iii) the property rights of a declining membership upon the dissolution of such associations. in short, the hanchett-stamford case illustrates the relevance and applicability of the ‘contract-holding theory’ in relation to the ownership of property by unincorporated associations. at its most basic, the contractholding theory dictates that the assets of unincorporated associations2 (such as money in bank accounts, cash, land, personalty, shares etc) are held nominally by the club’s officers (such as the chairman and/or treasurer) on trust for the membership of the club, who, in turn, hold the equitable title to such assets under ‘a form of joint tenancy’. further, the contract-holding theory dictates that, by their membership terms (as evidenced by the society’s constitution/rules), members contract with each other inter se. implied into this contract are terms to the effect that (a) an individual member undertakes not to sever and claim his individual equitable share to the property/assets of the association and (b) in the event of his death or resignation, his equitable interest in the club’s assets remains unsevered and devolves to the remaining ∗ llb (hons), phd, acarb, barrister (gray’s inn), senior lecturer, university of buckingham. 1 heard on february 20th 2008 at the court of chancery, bristol district registry with judgment being delivered on february 27th 2008. 2 for example, clubs and societies. case commentary 108 members of the club or society. these implied contract terms keep the club intact, until such time as the membership decide (in accordance with the rules) to wind-up the club and distribute its assets. additionally, the decision in hanchett-stamford also goes on to consider the ultimate destination of the ownership of the assets of an unincorporated association, where, over time, the club’s membership is reduced to a single person. factual background the performing and captive animals defence league (‘the league’) was founded in 1914. between 1914 and 1934, it had adopted a written constitution, but this came to be lost by the time of legal proceedings. during the said period its affairs were managed, initially by an executive committee. however at the 1934 annual general meeting, the members decided to dispense with the executive committee and appoint a director of the league, viz a captain edmund macmichael, who had conferred on him the power to appoint an advisory committee. it was by no means clear that the agm also decided to dispense with the constitution. objects of the league the only extant evidence produced as to the objects of the league was a booklet, published in 1962. this declared that the primary objects of the league were to seek the enactment of two bills, relating to the following: 1. performing animals the performing animals (prevention of cruelty) bill ‘to make illegal performances by animals involving cruelty in the ‘training’ etc with just compensation to the trade’.3 2. animal films – the protection of animals (cinematograph bill), the aim of which was to make unprofitable the infliction of animal cruelty in the production of animal films shown on the british screen, whether for foreign manufacture or not. further, the 1962 booklet went on to state that the above bills were intended only to further assist in enforcing the then existing law, namely the 3 in this connection, the league had, during its history, offered £1,000 to any person who under its constant supervision, succeeded in training any untrained animal to perform any circus trick on demand and without cruelty, which at all times was unclaimed. the league maintained that the trade had, by failing to answer the aforesaid thirty-year old challenge, publicly acknowledged the impossibility of training any kind of performing animal without cruelty. the denning law journal 109 protection of animals act 1911.4 this act rendered it illegal to cruelly beat, ill-treat, torture, infuriate, terrify or cause unnecessary suffering to any animal. further still, the booklet declared that the league’s objects also involved the prevention of the establishment of municipal zoos and the prevention of the introduction into the united kingdom of bullfights and rodeos. the booklet also encouraged league members to protest about television programmes, which depicted cruelty to animals.5 according to the 1962 booklet there were two categories of member, namely, life members and annual members, totalling at that time some 250 people. excess income was reinvested with gifts and legacies placed into an investment fund. mr and mrs hanchett-stamford joined the league in the mid-1960s as life members, both being relatively active in the league’s business.6 in this regard, the hanchett-stamfords’ worked with dr bill jordan, (the then chief vet of rspca) in educating people about how to care for animals. towards the end of the 1970s the work of the league declined and during this time mr. hanchett-stamford took de facto control over the league’s assets, which continued to accumulate. in the 1990s the league purchased a property known as ‘sid abbey’, west sid road, sidmouth, devon, whereupon title to the same was registered in the names of mr hanchett-stamford and a mr hervey7 as ‘trustees for the league’. this property was the principal wing of a nineteenth century gothic house together with extensive grounds and a swimming pool. mrs hanchettstamford had lived at this house for many years until her relocation to a nursing home.8 as at the date of the hearing, both registered proprietors were dead and sid abbey was valued at £675,000. additionally, the league also owned a portfolio of stocks and shares in the sum of £1.77 million. 4 the league wished to make more effective the existing 1911 act (in its attempt to prevent animal cruelty), in the context of the performing animals trade and as regards the use of animals in filmmaking. 5 no attempt was ever made to register the league as a charity; however the issue as to whether the league had charitable status was considered by the inland revenue in 1949. at this time the inland revenue concluded, in the light of the decision of the house of lords in national anti-vivisection society v irc [1948] ac 31 that the league could not have charitable status as its principal objects were to bring about a change in the law. the league did not appeal this decision. 6 to this end, mr hanchett-stamford managed to persuade several local authorities not to let out land to travelling circuses. 7 mr hervey also being a member of the league. 8 despite her relocation to a nursing home in sidmouth no suggestion seems to have been made that she was unfit to take part in legal proceedings. the court made arrangements to take evidence from her at this nursing home. case commentary 110 by the early 1990s the league’s activities dwindled and it no longer maintained membership records. from 2003, a mr redwood prepared the league’s annual accounts and tax returns and suggested that the league should take specialist advice with a view to winding itself up. prior to his own death, mr hanchett-stamford had suggested to mr redwood that the league’s assets be transferred to an active charity, which promoted animal welfare. to this end, it was agreed that the most suitable recipient would be the born free foundation.9 mr hanchett-stamford died in january 2006 and the current proceedings came about as a result of mr and mrs hanchett-stamford’s long-standing desire that the league’s assets be transferred to the born free foundation. relief sought in the high court mrs hanchett-stamford sought an order to the effect that the work and objects of the league were charitable, together with an order appointing herself, along with her solicitor ms bevan, trustees of the funds of the league, with discretion to select a charity with similar objects to the league so as to receive those funds.10 it is noteworthy that as a matter of fact, mr justice lewison found that just prior to mr hanchett-stamford’s death in 2006, mr and mrs hanchettstamford were the only two living members of the league, with mrs hanchett-stamford, as at the date of the hearing, being the sole surviving member of the league. legal issues mr justice lewison was, inter alia, confronted with deciding the following issues viz: (i) was the league a charity and (ii) if not a charity, what should happen to its assets? 9 this was an active charity, which promoted animal welfare. 10 the attorney general was the only original named defendant in the proceedings; however on 15th february 2008 dr william johnston-jordan was made a party to the proceedings, claiming to be a life member of the league. he had come forward in response to a series of newspaper advertisements (placed in 2007), seeking to identify members of the league. dr jordan however failed to produce any cogent evidence of membership of the league, past or present. further, dr jordan’s solicitor, by a letter dated 19th february 2008 expressly disclaimed on the part of dr jordan, any entitlement to the league’s assets. the denning law journal 111 in short, his lordship decided that the league was not a charity but rather an unincorporated association, with the property and assets thereof devolving to the last surviving member absolutely, namely mrs hanchett-stamford.11 the charitable status claim it was contended for mrs hanchett-stamford that the property and assets of the league were held on a charitable trust. in this connection it had to be shown that such a trust fulfilled certain requirements, viz: (i) it was charitable in nature, being ‘within the spirit and intendment of the preamble to the charitable uses act 1601’ (as interpreted by the courts and extended by statute) (ii) it promoted a public benefit of a nature recognised by the courts and (iii) its purposes were exclusively charitable. mr justice lewison declared that the key element of any charitable trust was that it should exist for the benefit of the public, such a benefit being either direct or indirect. in this vein, his lordship declared that it was the element of indirect public benefit, which enabled many trusts, which had as their purpose the prevention of animal cruelty, to be accorded charitable status.12 accordingly, it was held that a trust that had as its sole object the prevention of cruelty to performing animals was recognised as being capable of being a charitable trust.13 the problem encountered by the league however, centred on the fact that at the heart of its objects was a desire to change the law. in this regard his lordship held that for various reasons, it had long been established that where the purposes or one of the purposes of a trust had been to bring about a change in the law, the courts had refused to recognise the trust as charitable. the reasons typically given for this approach being (i) that in such instance the court has no means of judging whether a proposed change in the law will or will not be for the public benefit, see bowman v secular society ltd14 per lord parker and (ii) the law cannot stultify itself by holding that it is for the public benefit that the law itself should be changed and each court must decide on the principle that the law is right as it stands, see 11 this conclusion obviously rendered irrelevant any trusteeship issues relating to mrs hanchett-stamford. 12 see re wedgwood [1915] 1 ch 113, where it was suggested that a gift for the benefit and protection of animals was one which tended to promote and encourage kindness towards them, discouraged cruelty and necessarily stimulated humane and generous sentiments in man towards animals. this, in turn, thus promoted feelings of humanity and morality generally, thus elevating the human race. 13 in this regard his lordship recognised that this position had, in recent times, been expressly recognised by virtue of s 2(2)(k) charities act 2006. 14 [1917] ac 406. case commentary 112 national anti-vivisection society v irc15 per lords wright and simonds, and (iii) if the courts sanction as charitable trusts those with the purpose of changing the law, the courts would be trespassing on the role of the legislature, which bears the sole responsibility for evaluating the need for such changes, see mc govern v ag16 per slade j and southwood v ag17 per chadwick lj. his lordship did recognise however that there was a distinction between the purposes or objects of a charity and the means by which it promoted those objects or purposes, it being the case that the charity commission can issue guidance to charities and trustees about the extent to which they can engage in campaigning, including campaigns to change the law. in the final analysis however his lordship was of the view that the bedrock principle was that an organisation set up for the purpose of changing the law could not achieve charitable status. his lordship accepted that some of the leagues objects relating to the prevention of animal cruelty were already enshrined in the then relevant existing law,18 however other objects of the league sought to further change the law,19 viz the introduction of a ban on performing animals, albeit with ‘just compensation to the trade’. his lordship opined that such a change would be on a par with banning fox hunting or the farming of mink. therefore his lordship was of the view that the objects of the league were not charitable. it was further contended that even if the league, by virtue of its objects, was not charitable from the time of its inception, it had over the years become charitable in nature, either by virtue of changes in the law or as a result of the decision of mr and mrs hanchett-stamford to transfer the league’s assets to the born free foundation. cited in support of the first contention was the general medical council’s application for charitable status. the gmc was established by the medical act 1858 and incorporated by the medical council in 1862. its principal objects were to keep and publish a register of qualified medical practitioners, to exercise oversight over medical studies and examinations and to publish the british pharmacopaeia. it also had power to strike-off practitioners in certain circumstances. further, only medical practitioners registered with the gmc could sue for their fees. the inland revenue decided that the gmc had not been established for exclusively charitable purposes and the gmc’s appeal against that decision was dismissed by the high court and court of appeal.20 15 [1948] ac 31. 16 [1982] ch 321. 17 the times 18th july 2000. 18 by virtue of the cruelty to animals act 1911 (thus not involving any change). 19 to reflect the league’s own ‘wider concept of cruelty’. 20 see general medical council v irc [1928] all er 252. the denning law journal 113 at these hearings it was held that the gmc was principally established for benefit of the medical profession and that any benefit to the public was an incidental and secondary benefit, essentially because only a registered practitioner could sue for his fees. in 2001 however the charity commission allowed the gmc to be registered as a charity on the basis that there had been sufficient changes in the relevant legal framework to the constitution and activities of the gmc and the social and economic context within which the gmc operated. it was further stated that the gmc was established for the charitable purpose of ensuring proper standards in the practice of medicine and that the introduction of the nhs had transformed the environment within which medical services were provided (reducing the need for medical practitioners to sue for their fees) and that the general regulation of the profession was in the public interest. building on this example, it was argued for the claimant that changes brought in concerning animal welfare by virtue of the animal welfare act 2006 and the explicit recognition of the advancement of animal welfare as a charitable purpose by the charities act 2006, s 2 (2)(k) amounted to the necessary societal changes which now rendered the objects of the league charitable. his lordship however dismissed this argument on the basis that these changes were not major legal changes of substance and did not prohibit the performing or training of animals, which the league had as its principal object. as to the second argument, his lordship dismissed the suggestion that the league’s assets had become charitable by virtue of mr and mrs hanchettstamford’s decision to transfer the league’s assets to the born free foundation, (an existing registered charity). as to the real property asset of the league, namely sid abbey, his lordship held that there was no written evidence of this decision and hence no express declaration of trust in favour of the born free foundation, complicit with the formality requirements of law of property act 1925, s 53 (1)(b).21 as to the other assets of the league, no evidence existed suggesting any such express declaration of trust. further, his lordship stated that there was no evidence suggesting a binding contract between the league’s remaining members as to the distribution of the league’s assets for charitable purposes, so as to change the objects of the league, in order to render them exclusively charitable. in conclusion therefore his lordship was of the view that the league was never a charity nor had it ever become one. 21 law of property act 1925, s 53(1)(b) declares that: “a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such a trust or by his will.” case commentary 114 the league as an unincorporated association in his judgment, mr justice lewison considered the league an unincorporated association. to this end, as to the league’s asset holding, he relied upon the famous dictum of cross j in neville estates ltd v madden22 who stated that a gift to an unincorporated association could have one of three effects: 1. it may be a gift to members of the association at the relevant date as joint tenants so that any member could sever his share and claim it, whether or not he continues to be a member; 2. it may be a gift to the existing members not as joint tenants but subject to their respective contractual rights and liabilities towards one another as members of the association in such instance a member cannot sever his share and it will accrue to the other members on his death or resignation, even though such members include persons who became members after the gift took effect; 3. the terms or circumstances of the gift or the rules of the association may show that the property in question is not to be at the disposal of the members for the time being but it is to be held in trust for the purposes of the association as a quasi-corporate body – in such case the gift will fail unless the association is a charitable body. his lordship declared that as the league already had assets, there was no gift or bequest to league as such, therefore the third approach to construing the asset holding was inapplicable. further, his lordship held that analysing the league’s asset holding in terms of the first method of construction would lead to absurdity, in that, if adopted, this axiom of construction it would allow for every member of any club to sever their entitlement and claim an individual share of the assets. if this occurred clubs would be under permanent threat of being broken up in this fashion and would cease to exist. therefore his lordship held that it was the second ‘contract-holding theory’, which provided for the most appropriate analysis. in following the judgment of brightman j in re recher,23 the second approach to construing the asset holding of the league involved viewing those assets as “an accretion to the funds which are the subject-matter of the contract which such members have 22 [1962] ch 832. this threefold classification was adopted by brightman j in re recher’s will’s trusts [1972] ch 526 and by lawrence collins j in hunt v mclaren [2006] ewhc 2386 (ch). 23 ibid. the denning law journal 115 made inter se”.24 his lordship therefore concluded that the members for the time being of an unincorporated association were entitled to its assets, subject however to the contractual arrangements (albeit implied from the rules of the society) between them, the members holding ‘a form’ of beneficial ownership, in the sense that the property belonged to them.25 his lordship then, in accepting the reasoning of walton j in re bucks constabulary widows and orphans fund friendly society (no 2)26 concluded that members of unincorporated associations had contractual rather than equitable rights and that on death or resignation, members ceased to have any interest in the assets of the unincorporated association, this being not so much a result of equitable ownership rights but rather as a result of being a facet of the contractual relations between members. his lordship also agreed with the judgment of walton j in the bucks constabulary case to the effect that an unincorporated association would end when reduced to its last member, the logic being that if the members' rights are founded in contract, the contract must cease to bind once there is no other party to enforce it. however, unlike the decision of walton j in the bucks constabulary case, mr justice lewison took the view that where an unincorporated association was reduced to its last member, the assets should not go to the crown by way of bona vacantia. relying on the court of appeal ruling in cunnack v edwards27 and the irish appeal court ruling in tierny v tough,28 his lordship held that the assets of an unincorporated association belonged to the individual members. in this regard his lordship cited pennycuick j in abbatt v treasury solicitor29 who stated: 24 in re rechers will trusts (above n 22) brightman j declared that “a legacy …[left to an unincorporated association]…is a gift to the members beneficially not as joint tenants or as tenants in common so as to entitle each member to an immediate distributive share, but as an accretion to the funds of which are the subject matter of the contract which the members have made inter se.” 25 in this connection his lordship drew support from the dicta of brightman j in re rechers wills trusts (above n 22) and from the decision of walton j in re bucks constabulary widows and orphans fund friendly society (no 2) [1979] 1 wlr 937. further his lordship stated at para 31: “…megarry and wade on real property (6th ed para 9-095) accuse the courts of having developed “a new form of property holding by unincorporated associations in order to escape from the technical difficulties of the classic models of joint tenancies and tenancies in common. i do not think that the courts have purported to do so and in view of the proviso to the law of property act 1925, s 4(1), it is difficult to see how they lawfully could at least in relation to land…so the ownership of assets by unincorporated associations must somehow fit into accepted structures of property ownership.” 26 ibid. 27 [1896] 2 ch 679. 28 [1914] 1 i r 142. 29 [1969] 1 wlr 561. case commentary 116 “…it is an implied term of the contract of membership of a members’ club that an individual member is precluded from obtaining the realisation and distribution of the club property so long as the club functions. but once the club ceases to function the reason for this disappears and the right of the existing members must i think crystallise once and for all.” in his concluding comments his lordship then stated that the ‘thread’ which ran through so many of the cases on asset holding by unincorporated associations, was the fact that on dissolution, members were entitled to the assets free from any such contractual restriction. his lordship then suggested that whilst an unincorporated association was alive, the property rights of the members did not fit into any accepted property law model of joint tenancy or tenancy in common, but were rather “a sub-species of joint tenancy”, which took effect subject to any contractual restrictions applicable as between members. further, in his lordship’s view the above authorities demonstrated, that upon agreement/permanent cessation,30 (or where the membership fell below two), the members of a dissolved association had a beneficial interest in its assets. in applying this reasoning, his lordship then found that the league continued to operate until the death of mr hanchett-stamford in january 2006, after which its membership fell below two. the result of this being that the sole surviving member of the league, namely mrs hanchettstamford, inherited the assets of the league. this, in turn, entitled her to be registered both as proprietor of sid abbey and as shareholder of the league’s shares.31 comment mr justice lewison’s ruling in the hanchett-stamford case is interesting in several respects. first, the decision is very much in line with the recent authority of re horley town football club32 and indeed previous case law.33 30 in re gkn bolts and nuts ltd sports and social club [1982] 2 all e r 855, noted at [1983] conveyancer 315, megarry vc intimated that a ‘spontaneous dissolution’ of an unincorporated association could occur through inactivity where the inactivity was so prolonged that ‘dissolution’ was only reasonable inference to draw. 31 the assets had thus become hers absolutely. she had attained a monopoly of control over them. accordingly, his lordship noted that she was then free to so as she wished with the assets, which included giving the same to the born free foundation. 32 [2006] ewhc 2386 (ch), [2006] wtlr 1817. in re horley town football club; hunt v mclaren [2006] all er (d) 34, high court, the facts were as follows: in 1948, a major jennings, the then president of the horley town football club, (‘the club’), settled land by deed on trust ‘to secure a permanent sports ground for the club’. in may 2002 the land was sold to a developer for almost £4m. the trustees the denning law journal 117 like these earlier decisions, it again confirms the applicability of the ‘contract-holding theory’34 as the appropriate approach to analysing the holding of assets and property by unincorporated associations.35 secondly, the decision is significant in that like the dictum of walton j in the re bucks constabulary case,36 mr justice lewison endorses the view that in the event of an unincorporated association’s membership falling below two, such an association ceases to exist. it then reinforces the point that upon the death of any member, that member ceases to have any share in the assets of used the proceeds to purchase another site for £850,000 and to construct a clubhouse and ancillary facilities amounting to approximately £2.2m. this new sports complex was subject to certain restrictive covenants, which limited its use to sports and leisure. as a consequence, the land was worth less than the amount spent on it. the rules of the club made provision for several varieties of membership ranging from current full members to temporary and associate members. the trustees applied to the court for (i) directions concerning the basis on which they held the assets of the club and (ii) a ruling as to the proper construction of the rules of the club. after reviewing the authorities, the high court held that the deed should be construed as a gift to the club, as a ‘contract-holding gift to the club and its members for the time being’ under the ruling in neville estates v madden (above n 22). further, it was held that a gift to or in trust for an unincorporated association might take effect as a gift to the existing members, not as joint tenants but subject to their respective contractual rights and liabilities towards each other as members of the association. in this event, it then held that each member could not sever his share and it would accrue to the other members on his death or resignation. it was further held, as a matter of construction, that the beneficial ownership of the assets of the club subsisted in the ‘full members’ but not the temporary and associate members. accordingly, the trustees held the assets on bare trusts for the full members. it followed therefore that the members acquired the assets of the club subject to the current rules and could unanimously or by a general meeting call for the assets to be transferred. see p luxton “gifts to clubs: contract holding is trumps” [2007] conveyancer 274. 33 see neville estates ltd v madden (above n 22) and re recher (above n 22). 34 as originally promulgated in neville estates ltd v madden (ibid) 35 the ‘contract holding theory’ (or ‘the accretion to assets’ model), in the last 40 or so years, has become the preferred and perhaps most convenient way in which to construe the holding of assets by unincorporated associations generally, as opposed to other approaches, such as those involving a purpose trust approach (see re drummond [1914] 2 ch 90, re price [1943] 2 all er 505), or outright gift to members as joint tenants whereupon any one member can sever his share (see leahy v ag for new south wales [1959] ac 457 (pc), cocks v manners (1871) lr 12 eq 574 (hc)), or the mandate/agency theory (see conservative and unionist central office v burrell [1982] 1 wlr 522 (hc)). see generally j warburton “the holding of property by unincorporated associations” [1985] conveyancer 318. 36 above n 25. case commentary 118 the association by virtue of the ius accrescendi applying in favour of the surviving members (as reinforced by the contract between members).37 thirdly, by his judgment, it is significant that his lordship expressly overturns the suggestion made by walton j in the re bucks constabulary case to the effect that in the event of the death of the second-to-last member of an unincorporated association, the crown picks up any assets remaining, by virtue of the doctrine of bona vacantia, albeit through the attorney general. in this connection, mr justice lewison relying on dicta in abbatt v treasury solicitor38 asserts that the remaining member inherits the assets. it is submitted that this is the better view and represents an approach, which is more likely to be in keeping with the spirit and substance of the european convention on human rights.39 finally, the reasoning underpinning the judgment in the hanchettstamford case nicely illustrates the legal principles governing the asset holding and dissolution of unincorporated associations and, in the light of earlier case law, demonstrates a consistency of approach to what is a complicated area of property law.40 37 the same approach was also held to apply to instances of resignation of members, no doubt as a result of such members being ‘a sub-species of joint tenant’. upon resignation, it could be argued that a member effectively ‘releases’ his ‘equitable interest to the remaining membership, see s 36(2), law of property act 1925. 38 [1969] 1 wlr 561. 39 article 1 of the first protocol of the european convention on human rights and fundamental freedoms guarantees the peaceful enjoyment of possessions; it states: “…no one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law…” in this regard, in the hanchettstamford case, mr justice lewison stated: “…on the face of it for one of two members of an unincorporated association to be deprived of his share in the assets of the association by reason of the death of the other of them, without any compensation, appears to be a breach of this article. it is also difficult to see what public interest is served by the appropriation by the state of that member’s share in the association’s assets. this…provides another reason why the conclusion that a sole surviving member of the unincorporated association, while still alive cannot claim its assets, is unacceptable…” 40 some writers such as todd have suggested that the best way to resolve some of the problems surrounding asset holding by unincorporated associations would be for uk law to allow trusts for the purposes of the association to be valid, along the lines of that upheld in the case of re denley [1969] 1 ch 373. such a reform it is argued would not give rise to any enforcement problems because of the locus standi of the membership in this regard. a possible difficulty with such a model may remain however within the current constraints of the law against perpetuities in relation to land holding /asset holding. in which case it has been suggested that the solution lies in a liberalisation of the rule against perpetuities, so as to allow for the ‘private purpose trust’ device to regulate the asset holding of unincorporated associations. case commentary introduction factual background objects of the league relief sought legal issues the charitable status claim comment for the purposes of right to self-determination, how does one define people in context of kashmir 1 the denning law journal 2012 vol 24 pp 1-19 the gradual curtailment of the royal prerogative noel cox * introduction in the united kingdom and those countries that recognise elizabeth ii as their queen, 1 there are to be found certain fundamental constitutional principles. one of these is that much of the legal basis of executive power derives from the crown, 2 though this has, in the past, often been downplayed for political and other reasons. indeed, in the commonwealth as a whole, political independence has often been equated with the reduction of the role of the crown to a position of subservience to the political executive. 3 what remains important is the position of the crown as an organising principle of government (the framework upon which the structure of government is built 4 ), as a source of legitimacy, and as a symbol for permanent government. executive power, therefore, remains based on the royal prerogative, and the „third source‟ of authority (the legal powers of the legal natural person, as the crown is a corporation aggregate), as well as upon statute law. the royal prerogative is the residue of royal power which derives from the ancient rights, privileges and powers of the sovereign, including the prerogative of mercy, political prerogatives such as declaring war or peace, and financial prerogatives such as bona vacantia. within the scope of the * aberystwyth university. 1 these countries include antigua and barbuda, australia, the bahamas, barbados, belize, canada, grenada, jamaica, new zealand, papua new guinea, saint kitts and nevis, saint lucia, saint vincent and the grenadines, the solomon islands, tuvalu, and the united kingdom. 2 b v harris “the „third source‟ of authority for government action” (1992) 108 law quarterly review 626. for a definition of the crown, see janine hayward “in search of a treaty partner: who, or what, is „the crown?‟” (1995) victoria university of wellington phd thesis. 3 david e smith “bagehot, the crown, and the canadian constitution” (1995) 28 canadian journal of political science 623-624. 4 recent examples include crown health enterprises. the gradual curtailment of the royal prerogative 2 royal prerogative, the sovereign once had a comparatively free hand to act. 5 yet even these powers are now limited by the legal concept of convention, 6 and, more recently, by the principles of administrative law. 7 the sovereign enjoys certain powers, but these are to be exercised (for the most part) by ministers responsible to parliament, rather than by the sovereign personally, without, however, prior authorisation – or subsequent validation – by parliament. the idea that the prerogative is an uncomfortable fit with the supremacy of parliament, and the rule of law, 8 weakens its position (as does other factors), for it was seen as something of an enigma, or even a black hole. the very survival of the prerogative is now questioned in some quarters, though whether the curtailment of the prerogative results in its eventual extinction is a moot question – as is the question of whether this would be a desirable outcome. curtailment of the prerogative lord cooke of thorndon, in writing on the place and nature of the crown, has built upon the views of sir owen dixon, who saw the evolution of constitutional law, both in the united kingdom, and in the overseas realms of the crown, as the product of the interplay between three potentially conflicting conceptions. these were the supremacy of the law, the supremacy of the crown, and the supremacy of parliament. 9 this interplay has produced the present constitutional structure, whose defining aspects are identified, 5 the seventeenth century view was that the courts would not enquire into the manner of use of an admitted prerogative ─ at any rate if the holder was not shown to be acting in bad faith; darnel’s case (“the case of the five knights”) (1627) 3 state tr 1; reaffirmed by chandler v director of public prosecutions [1962] 3 wlr 694. 6 conventions are similar to legal rules, but they cannot be enforced by the courts; madzimbamuto v lardner-burke [1969] 1 ac 645 (pc); no 1968 (2) sa 284; adesebenro v akintola [1963] ac 614, 630. they are rules of political practice which are regarded as binding by those to whom they apply. laws are enforceable by the courts, conventions are not; colin munro “laws and conventions distinguished” (1975) 91 law quarterly review 218. 7 see the operation dismantle case (1985) 18 dlr (4 th ) 481 (scc); (1983) 3 d.l.r. (4 th ) 193 (fca); clive walker “review of the prerogative” (1987) public law 62. 8 thomas poole “united kingdom: the royal prerogative” (2010) 8(1) icon 146155 at 147. 9 “the law and the constitution” (1935) 51 law quarterly review 590; lord cooke of thorndon “the suggested revolution against the crown” in philip joseph essays on the constitution (1995) pp 28-40. the denning law journal 3 though perhaps misunderstood, by montesquieu. 10 this is the origin and antecedent of both the rule of law and the separation of powers. the supremacy of the law is an idea that we owe to the early middle ages. 11 there was then no concept of the sovereign state, at least in part because everyone had a different lord to whom they owed allegiance. 12 to many in the seventeenth century the law was the true sovereign. with the reformation a true theory of sovereignty became possible, because of the vast increase in the powers and activity of the legislature. judges, as professors of the common law, claimed for it supreme authority. had this been admitted they would have been the ultimate authority in the state, 13 as perhaps they are today in the united states of america, where the separation of powers, and an entrenched constitution, ensure a major constitutional role for the judiciary. oresme argues that legislative power is vested in the people as a whole, since they alone can judge the common good. 14 this view was roughly compatible with the english constitutional position in the latter middle ages, when parliament was regarded as the indispensable forum for the production of statute law. 15 fortescue arrived at a similar conclusion, though by a very different route. this was a result of his experience in the english law courts, where he concluded that: “the statutes of england ... are made, not only by the prince‟s will, but also by the assent of whole realm, so they cannot be injurious to the people nor fail to secure their advantage.” 16 10 charles de secondat baron de montesquieu “the spirit of the laws” in a lijphart, (ed) parliamentary versus presidential government (1992), 48-51. 11 in england, reginald pecock and john fortescue, and on the continent, pierre d‟ailly, nicholas of cusa; reginald pecock donet (1921) p 76; sir john fortescue in praise of the laws of england (de laudibus legum angliæ) s b chrimes (ed) (1942), c 36 p 87; sir robert carlyle and aj carlyle a history of mediaeval political theory in the west (1903-36), vol vi pp 138 and p 141. 12 frederic maitland and sir frederick pollock history of english law before the times of edward i (2 nd edn 1895), vol 1 p 182. 13 j n figgis the theory of the divine right of kings (1914) p 230. 14 nicole oresme le livres de politiques d’aristotle a d menut (ed) (1970) transactions of the american philosophical society 137-138. 15 he followed masilius drawing on roman law and aristotelian utility; jean dunbabin “government” in j h burns the cambridge history of medieval political thought c350-c1450 (1988) 507. 16 sed non sic angliae statuta oriri possunt, dum nedum principis voluntate sed et totius regni assensu ipsa conduntur, quo populi laesuram illam efficere requeunt vel non corum commodum procurare. the gradual curtailment of the royal prerogative 4 fortescue‟s doctrine of english kingship was that it was dominium politicum et regale, in contrast with the french dominium regale. 17 continental princes ruled on the basis of the civil law of their stronger roman heritage. 18 they relied especially on the maxim quod principi placuit legis habet vigorem. 19 english kingship was superior, at least, according to the chancellor in fortescue‟s fictitious disputation which comprises the basis of de laudibus legum anglia, because the monarchy was limited by the requirement for the assent of parliament. this was despite the fact that the power of kings was everywhere the same, but authority differed because of differences in their origins. the laws of england were more venerable, and must be deemed to be the best obtainable. this was because they were not enacted at the sole behest of the prince, but by the prudence of 300 members of parliament. 20 the reformation parliament settled the conventional view of the english constitution so clearly expounded in sir thomas smith‟s de republica anglorum (1565) and so hard to find even obscurely stated before 1530s. 21 as a result of the reformation, the doctrine of parliamentary supremacy was developed. 22 but a long fight was waged by king charles i in defence of his prerogative. he was committed to the traditional symbiosis of royal prerogative and law rather than any new theory of the state. 23 in the course of time the king-in-parliament, the legislature, became supreme over the law. on the continent the lawyers were antagonistic to representative assemblies, and there courts persisted in maintaining the predominance of the law over the authority of such assemblies, and so – sir john fortescue in praise of the laws of england (de laudibus legum angliæ) ed s b chrimes (1942), 41. 17 a limited monarchy, in contrast to an absolute monarchy; sir john fortescue the governance of england notes by charles plummer (1979). 18 the extent to which the common law resisted the reception of roman law has been much disputed, though recent research suggests that the mediæval common law, though surviving in an organic sense, actually underwent a substantial reformation in the renaissance period, especially 1490s to 1540s; see the introduction to the reports of sir john spelman (1978), vol ii seldon society vol 94; sir john baker “english law and the renaissance” (1985) cambridge law journal 46. 19 “what hath pleased the prince has the force of law”. 20 sir john fortescue in praise of the laws of england (de laudibus legum angliæ) ed sb chrimes (1942) pp xii-xcviii. 21 sir thomas smith was a civil lawyer who stood analytically outside the constraints of the common law tradition. 22 sir geoffrey elton reform and reformation, 1509-1558 (1979) pp 199-200. 23 kevin sharpe the personal rule of charles i (1992) p 930. the denning law journal 5 encouraged the growth of absolutism. in england after 1688 no claim was made that any rule of the common law was too fundamental to admit of change. the course of our constitutional and legal development must have been profoundly different had it been otherwise. 24 it is unclear just when parliamentary sovereignty triumphed over the supremacy of the crown, but parliament took control of the succession in 1689, and asserted it in 1701. 25 the law remained supreme over all organs of government as well as people, and legislative power (properly expressed) extended over the whole field of law. 26 the growth of the territorial state brought about the need for one supreme authority. as a consequence came a more modern doctrine, a doctrine embodying a conception that was widely held. this was the supremacy of the crown as the mystical holder of the sovereignty of the state. continental europe found in kingship the state‟s source of unity and power. this was to remain the lynch-pin of constitutional theory until modern times. the majesty of the holy roman emperor had spread all over europe in the thirteenth century. to this doctrine of the divine right of kings, habits of thought of the greatest consequences have been traced. these include a deep sense of the majesty of the law, and the duty of obedience. 27 when the competing focal points of sovereignty were reconciled in the course of the seventeenth and eighteenth centuries, the splendour of the crown remained as the legal expression of the sovereignty of the nation. the supremacy of the crown necessarily had to give way under the inexorable advance of the supremacy of parliament – but need not necessarily disappear altogether. the aims of the late mediæval and early modern state were negative and disciplinary. the extreme emphasis on property rights carried with it an emphasis on law – a lawyer‟s rather than a politicians view of government. by fortescue‟s time if not earlier, men felt strong monarchy upheld their rights (a mass of technical rules and practices), rather than parliament. 28 24 owen dixon “the law and the constitution” (1935) 51 law quarterly review 590. 25 see, for example, h t dickinson “the eighteenth-century debate on the „glorious revolution‟” (1976) 61 history 28-45; h t dickinson “the eighteenth-century debate on the sovereignty of parliament” (1976) 26 transactions of the royal historical society (5 th series) pp 189-210. 26 i r christie wars and revolutions (1982) p 21. 27 j n figgis the theory of the divine right of kings (1914) p 266. 28 j r lander the limitations of english monarchy in the later middle ages (1989) pp 4-6. the gradual curtailment of the royal prerogative 6 de laudibus legum angliæ, 29 written 1468-71, was one of the first coherent exercises in comparative law. it was strongly influenced by the french experience of sir john fortescue. it had a direct influence on the constitutional thinkers of the seventeenth century. fortescue‟s successors in that century argued more precisely that the ancient constitution was anglosaxon – and the royal prerogative was the right of conquest of william the conqueror. 30 fortescue supports the doctrine of constitutional monarchy found in st thomas, but really his support is derived from his own liberal sentiments and the experience of england. 31 the contention, most clearly expressed by aquinas, that the king was not restrained by law because he controlled coercion, was widely rejected in thirteenth century england. royal jurisdiction depended on co-operation. 32 in both england and france giles of rome‟s view that “laws are laid down by the prince and established by princely authority”, 33 was disputed. 34 bracton regarded the magnates as having an essential role in legislation. 35 since 1688 whigs had insisted that the sovereign was the servant rather than the master of the people, even though the legal forms implied rather more than this. but this still left the extent of the active role of the sovereign undecided. for most of the nineteenth century the whigs assumed a “constitutional monarchy” should keep clear of the everyday turmoil of party politics (as bagehot would have it), and this ultimately became, in the twentieth century, the official orthodoxy. 29 sir john fortescue in praise of the laws of england (de laudibus legum angliæ) ed sb chrimes (1942). 30 robert brady argued that parliament and the common law were not part of an ancient and immemorial constitution, but traceable instead to the conquest and the institution of feudalism; j g a pocock the ancient constitution and the feudal law; a study of english historical thought in the seventeenth century (2 nd edn, 1987), chap 8; sir james holt magna carta and mediæval government (1985) pp 3-8. 31 sir john fortescue the governance of england notes by charles plummer (1979) p 172. 32 jean dunbabin “government” in j h burns the cambridge history of medieval political thought c350-c1450 (1988) pp 505-506. 33 giles of rome de regimine principum (rome, 1556), i, ii, 10, 1556 fol 44v 34 aquinas in particular was not convinced by the latin tag; st thomas aquinas, j gilbey et al (eds) (1964-80), i, iiae, qu 90, art 3. 35 henry de bracton on the laws and customs of england (“henri de bracton de legibus et constuetudinibus angliæ”) g e woodbine (ed); trans se thorne (1968), vol. ii, p 21. the denning law journal 7 by early in the nineteenth century analytical jurists had made parliamentary sovereignty the pivot of the legal system. 36 the constitution depended upon the common law, whose creature it was. the legal expression of the power of the state was always through the crown. but there is nothing which transcends the power of an act of parliament. 37 parliament‟s power to suspend the law is absolute. but this position was reached comparatively recently, and is not necessarily immutable. the law alone remains permanent and ever-present, in a way similar to the later conceptualisation of the crown. it was agreed after 1815 that a sovereign should be kept out of party politics. 38 over the course of the nineteenth century the monarchy moved from sharing government, to having a share in government, to a largely advisory role, 39 and in the later years of the reign of victoria the growing importance of organised political parties gave her less room to manoeuvre than her predecessors. 40 responsible government prevailed, but the source for executive power remained the royal prerogative, whose basis was the law, not parliamentary sanction. since then belief in the supremacy, or sovereignty of parliament has prevailed. but the ancient balance of the constitution depended not merely upon democracy. it rested – and today still rests in all those countries with a westminster system of parliamentary democracy and the separation of powers imbrued with the principle of the rule of law – upon the supremacy of the crown-in-parliament, and the survival of a legitimacy which extends well beyond mere majoritarian representative democracy. the value of the royal prerogative is that it can be exercised free of parliamentary control; conversely this is what harris sees as a weakness and would bring to an end. there is no clear argument, however, as to why majoritarian representative democracy, operating through members of parliament, should necessarily provide a greater mandate for executive government action than the legitimacy derived from the ancient prerogatives of the crown. curiously, harris writes of the “expected role of parliament as 36 see william hearn the government of england: its structure and its development (1867), which was a major influence on dicey. 37 owen dixon “the law and the constitution” (1935) 51 law quarterly review 593-595. nor will the courts be eager to question the authority of an act of parliament, a principle cited as early as 1455; p 33 hen vi 17, 8 at 18 per fortescue, cjkb. 38 h j hanham the nineteenth century constitution, 1815-1914 (1969), 30. 39 john cannon and ralph griffiths the oxford illustrated history of the british monarchy (1988) p 530. 40 h j hanham the nineteenth century constitution 1815-1914 (1969) p 25. the gradual curtailment of the royal prerogative 8 the sole authoriser of executive action”. 41 the democratic mandate is important in the legislative process; but it is less clear that it should be exercised through parliament, when we are considering actions of the executive. after all, the executive is already totally dependent upon parliamentary support, through the principle of ministerial responsibility, and the need for parliamentary supply. the scope of the royal prerogative has not gone uncontested – indeed its history is one of challenge, especially in the seventeenth century. 42 there has been some discussion recently of curtailing or even abolishing, the royal prerogative, in the united kingdom, 43 in new zealand, and elsewhere. though it would be incorrect to in the united kingdom this call has been particularly associated with the deployment of troops to foreign theatres of war, 44 though it can scarcely be called a „groundswell‟ of public opinion demanding comprehensive replacement of the royal prerogative, as harris could be inferred to suggest is the case. 45 after initially announcing plans for a sweeping reform of the prerogative the government has decided to undertake only a small amount of tidying up work. 46 a draft constitutional reform and governance bill was published in the united kingdom in march 2008, containing provisions for the statutory replacement of a modest 41 b v harris “replacement of the royal prerogative in new zealand” (2009) 23 new zealand universities law review 285 at 298. 42 the insistence, in the militia ordinance of march 1642, that control of the militia should be vested in parliament – a direct assault on the prerogative – was justified entirely in neo-roman terms; adam tomkins our republican constitution (2005), 89; quentin skinner, “classical liberty renaissance translation and the english civil war” in visions of politics (2002), 326 (see cicero‟s maxim that salus populi suprema lex est [“the safety of the people is the supreme law”]). 43 the labour government is committed to moving progressively towards replacement of the major remaining royal prerogative powers with statutory authority. see the governance of britain (july 2007) cm 7170, and the governance of britain – war powers and treaties: living executive powers (october 2007) cp 26/07. the conservative party and the liberal democratic party also favour some reforms: david cameron “modernisation with a purpose” speech launching the democracy task force, 6 th february 2006; for the people, by the people (2007) policy paper no 83, paras 5.8-5.8.3. 44 particularly, according to harris, the falkland islands, kuwait, bosnia and afghanistan; b v harris “replacement of the royal prerogative in new zealand” (2009) 23 new zealand universities law review 285-314. 45 ibid, at 287. 46 the governance of britain (july 2007) cm 7170; ministry of justice, “review of the executive royal prerogative: final report” (ministry of justice, london, 15 th october 2009). the denning law journal 9 selection of royal prerogative powers. 47 other steps may follow in the united kingdom. harris, in a recent article, argues for the eventual replacement of surviving royal prerogatives in new zealand with statutory authority. 48 his thesis for this is comparatively simple. the common law royal prerogative, statute law, and the so-called „third source‟ of authority, are the legal bases for executive action. 49 however, the royal prerogative doesn‟t meet the standard of an ideal model (which he proposes); it is less democratic, less certain, less accessible, and less easily understood. this argument, however, involves a paradox; the royal prerogative “as currently perceived” falls short of the ideal model; but the model itself is a conceptual construct which itself can be subject to criticism. while a more deliberate conceptual design approach to the provision of legal authority for executive action may well be desirable, it has not been established that this necessitates a statutory basis (or indeed another basis) for authority replacing the royal prerogative. it is true that there may be no consistent source for executive powers (though there are only three sources 50 ), but it is not clear why that should lead to support for the triumph of parliamentary supremacy over the supremacy of the law (or indeed of the crown). in the event of the adoption of an entrenched written constitution, in either new zealand or the united kingdom, the matter might well be different, for in that case the source of all authority could ultimately be the constitution itself, though it would not necessarily be so – in australia the source is the people, despite what the constitution appears to say. 51 47 the governance of britain – draft constitutional renewal bill (march 2008), cm 7342-11, and the report of the joint committee of the house of lords and house of commons on the draft constitutional renewal bill (31 st july 2008), hl paper 166-i hc paper 551-i. 48 b v harris “replacement of the royal prerogative in new zealand” (2009) 23 new zealand universities law review 285. a few years earlier, in “the constitutional future of new zealand” (2004) new zealand law review 269 at 308, harris speculated that if new zealand were to adopt a written constitution it could provide for the royal prerogative “to survive, and be relevant to the new institutions of government created under the written constitution”. 49 b v harris “the „third source‟ of authority for government action” (1992) 108 law quarterly review 626; bv harris “the „third source‟ of authority for government action revisited” (2007) 123 law quarterly review 225. 50 ibid. 51 australian capital television pty ltd v commonwealth (1992) 177 clr 106, 138 per mason cj. the gradual curtailment of the royal prerogative 10 to overly promote and emphasise one branch of government over the other is weakening of the separation of powers, for this is not the legislature asserting its law-making role; it is the legislature infringing on the role of the executive to make and implement policy. thus, to address one perceived weakness in the system in this manner is actually creating a new imbalance. the very independence of the royal prerogative from parliamentary control is arguably its strength, not a weakness. the royal prerogative may not be based on parliamentary mandate, prior or subsequent, but that does not mean that it lacks its own legitimacy. blackstone himself observed that one of the strengths of the prerogative: “was the limitation of the king‟s prerogative by bounds so certain and notorious, that it is impossible he should ever exceed them, without the consent of the people, on the one hand; or without, on the other, a violation of that original contract, which in all states impliedly, and in ours most expressly, subsists between the prince and the subject.” 52 legitimacy offers reasons why a given state deserves the allegiance of its members, but also why the authority of an institution is respected and enforced. max weber identified three bases for this authority ─ traditions and customs; legal-rational procedures (such as voting); and individual charisma. 53 some combination of these can be found in most political systems. the first is more relevant with respect to the crown, but in some respects the others also apply. in modern democratic societies popular elections confer legitimacy upon governments – though where these processes are disputed legitimacy is threatened. but legitimacy can also be independent of the mere assertion of authority or the opinion of the claimant. this has been particularly important in the late twentieth century discussion of indigenous rights. 54 thus rights are not dependent or conditional upon public opinion or majoritarian support – indeed, such support is often lacking. there has been a tendency to undervalue the crown as a source of legitimacy, because its legitimacy is regarded as of minimal significance compared with that derived from the ballot box. but, in the view of observers such as smith and birch, the most important of the defects of the liberal political model of the westminster-type constitution ─ the view of the 52 sir william blackstone commentaries on the laws of england (4 th edn 1770), book i, chapter vii, p 237. 53 see randall collins weberian sociological theory (1986). 54 see, for example, sir eli lauterpacht “sovereignty” (1997) 73(1) international affairs 137. the denning law journal 11 political theorist rather than the lawyer or politician ─ is its failure to depict the role of the crown in the system of government, and the implications of the interrelated independence of the executive. 55 the legitimacy of the crown is dependent on popular support, but is also independent of it. the legitimacy of the crown includes that owed to the established regime. with the modern democratic ethos it might be possible to regard legitimacy which has such a basis of authority as weak, but it does nevertheless have its value. in tuvalu, for instance, respect for the crown was regarded as instilling a high sense of respect for whoever was occupying the position of governorgeneral, not so much because of the incumbent, but rather for the durability of a system which had stood the test of time; the british monarchy. 56 this was particularly so because the country was linked, by the crown, with a much larger, world-wide, political entity. in other words, the institution was greater than the individual. the crown itself provides some governmental legitimacy, simply because it is a permanent manifestation of authority, a proto-state as some would argue. 57 smith has suggested that in canada the crown provides the necessary underlying structure for government. this could be true in new zealand, arguably even more so, since there is no entrenched written constitution upon which constitutional or political thought may focus. 58 although electoral support might suffice for much of the legitimacy of government, this is reinforced by the historical continuity of the crown. in contrast to a common political theorists‟ view ─ which concentrates upon the political actors 59 ─ official terminology (the view of the administrator) had in the past tended to emphasise the importance of the crown. thus the formal role the sovereign plays in parliament conveys a 55 david e smith the invisible crown (1995); anthony birch the british system of government (9 th edn, 1993). 56 tauassa taafahi governance in the pacific (1996) p 1. 57 joseph jacob the republican crown: lawyers and the making of the state in twentieth century britain (1996). 58 the treaty of waitangi might serve a similar purpose, though it is perhaps unlikely that it would achieve this alone, as opinion polls suggest that it lacks the general support of the non-maori population; see paul perry, and alan webster new zealand politics at the turn of the millennium: attitudes and values about politics and government (1999) pp 74-75. 59 note the emphasis in such works as jonathan boston, stephen levine, elizabeth mcleay, nigel roberts and hannah schmidt “caretaker governments and the evolution of caretaker conventions in new zealand” (1998) 28(4) victoria university of wellington law review 629, where the institutional role of the crown is given relatively little coverage. the gradual curtailment of the royal prerogative 12 totally different view to that of the political realist. it is arguably even more inaccurate, as the sovereign‟s legislative role has been largely nominal for some three hundred years ─ except with respect to colonial legislatures, and even here the role has been exercised on the advice of ministers. according to barker, the principal function of the theory of the crown is to provide a legal person who can act in the courts, to whom public servants may owe and own allegiance, and who may act in all those exercises of authority, such as the making of treaties or the declaration of war, which do not rest upon the legislative supremacy of parliament. 60 they are also the legal person who exercises the administrative function of executive government. in this view, and in the united kingdom at least, and probably in all the realms also, the legitimacy involved here is quite independent of any popular authorisation, and the idea of the crown as a legitimising principle is articulated and employed within the personnel and operation of government, though little outside. curtailment of the royal prerogative is largely based on its lack of legitimacy, but this is overly simplistic, as the royal prerogative possesses a different type of legitimacy, distinct from the majoritarian dictatorship found in representative parliamentary democracy. it is closer to the legitimacy of the judiciary. justiciability and other limitations on the prerogative harris, and commentators in the united kingdom, are concerned with the legitimacy of the royal prerogative, but they are also concerned with the question of the accountability of the executive for its actions. there is a range of ways in which this can be achieved. each has an important role to play, though for most practical purposes the most effective day-to-day control has proven to be the courts. it was long maintained that the royal prerogative was generally nonjusticiable (or non-reviewable by the courts), 61 though it has always been the function of the courts to determine its existence. 62 the more usual view now is that the justiciability or non-justiciability depends not upon the nature of the 60 rodney barker political legitimacy and the state (1990) pp 143-4. 61 for example, see barton v r (1980) 147 clr 75, 90 per gibbs acj; chandler v director of public prosecutions [1964] ac 763; case of proclamations (1611) 12 co rep 74; 77 er 1352 (kb). 62 council of civil service unions v minister for the civil service [1985] ac 374 per lord roskill (obiter) (hl). the denning law journal 13 power – as part of the royal prerogative – but upon its subject matter. 63 this has the potential effect of widened the scope of judicial review, though the courts show deference to those who discharge royal prerogative powers, in the expectation that they will exercise such powers fairly, reasonably, and in accordance with law. 64 in gouriet v union of post office workers, 65 the house of lords, while affirming the unreviewability of the attorney-general‟s decision to refuse to give his consent to a relator action, emphasised the political nature of the attorney-general‟s role rather than its origin in the prerogative. the view seemed to be taking hold that the reviewability of the exercise of powers depended on the nature of the question, and not on the source of the power. the reluctance of the courts to review the prerogative gave ground in the mid1980s, especially in the seminal council of civil service unions v minister for the civil service 66 (the gchq case). this held that the prerogative power was generally though not universally amenable to review, though the political ones were not. this provided an explanation of the earlier decisions such as chandler v director of public prosecutions 67 and hanratty v lord butler of saffron walden, 68 which is consistent with the newly stated view. the cases stemming from the depopulation of the chagos archipelago 69 led to the house of lords deciding, in r (on the application of bancoult) v secretary of state for foreign and commonwealth affairs 70 that the exercise of power by the executive alone was amenable to judicial review. 63 ibid; black v chretien (2001) 199 dlr (4th) 228 (court of appeal of ontario); minister for arts, heritage & environment v peko-wallsend ltd (1987) 15 fcr 274, 277-278 per bowen cj, 280 per sheppard j, 302-304 per wilcox j; 75 alr 218 (fc); macrae v attorney-general of new south wales (1987) 9 nswlr 268, 273, 277, 281 per kirby p, 308 per priestley ja (ca); attorney-general for the united kingdom v heinemann publishers australia pty ltd (1987) 10 nswlr 86 (ca); century metals & mining nl v yeomans (1989) 40 fcr 564, 587-588; 100 alr 383; 22 ald 730 (fc); blyth district hospital inc v south australian health commission (1988) 49 sasr 501, 509 per king cj (fc). 64 burt v governor-general [1992] 3 nzlr 672, 683 (ca). 65 [1978] ac 435; [1977] 3 all er 70 (hl). 66 council of civil service unions v minister for the civil service [1985] ac 374 (hl). 67 [1964] ac 763. 68 [1971] 115 sol jo 386; the times, 12 th may 1971 (ca) (prerogative of mercy). 69 see r (on the application of bancoult) v secretary of state for foreign and commonwealth affairs [2008] ukhl 61; [2008] 3 wlr 955 (hl); r (bancoult) v secretary of state for foreign and commonwealth affairs (2001) 2 wlr 1219 (hl). 70 [2008] ukhl 61; [2008] 3 wlr 955 (hl). the gradual curtailment of the royal prerogative 14 although the courts can now review the exercise of the royal prerogative in certain instances, 71 as where there is a legitimate expectation, there is no general power of review. 72 having said that, in general terms, the exercise of royal prerogative powers is subject to judicial review, although there are exceptions – including the honours prerogative. 73 these limits have been held to apply particularly to the exercise of what may be termed the political aspects of the royal prerogative. this was important in the context of black’s case. 74 limitations on the prerogative as outlined above may potentially undermine both its legitimacy and effectiveness, because it is in danger of being severed from its historic origins. but it may also enhance its legitimacy in other ways, because it involves the addition of new checks and balances. its effectiveness may also be enhanced, leading us to quite reasonably question why it would need to be abolished, and whether such a step might be counterproductive. in addition, the curtailment or regulation of the prerogative can cause unexpected problems. this can be seen illustrated, in a quite technical manner, in a recent irish imbroglio. the fate of the prerogative in ireland the abolition of the prerogative – or even its codification – can create problems which may not be anticipated. the experience in ireland can illustrate this. once part of the united kingdom, from the twentieth century ireland reasserted its ancient independence. but this had certain consequences, some of which were unforeseen, as a result of the way in which independence was achieved, through a series of revolutionary and evolutionary steps, from a once-unitary crown. from 1922 the situation became complicated, with the constitution of the irish free state remaining silent on the question of the royal prerogative – which was clearly not then transferred to the government of the state, but which probably preserved the royal prerogative in the hands of the king. it seems that the royal prerogative was unaffected by the advent of the irish free 71 such as when it relates to the honours prerogative; black v chretien (2001) 199 dlr (4 th ) 228, paras 27 per laskin ja (court of appeal of ontario). 72 council of civil service unions v minister for the civil service [1985] ac 374 (hl). 73 as was found in black v chretien (2001) 199 dlr (4 th ) 228 (court of appeal of ontario). 74 ibid. the denning law journal 15 state – at least until 1937 (or rather 1936, as shall be seen), and the effective creation of an irish republic. the royal prerogative was not transferred or assigned to the irish government in 1936 or 1937. from 12 th december 1936 the king ceased to be such for all purposes except signing treaties and accrediting envoys, since irish citizens remained subjects of the crown. whilst we must remember that the notion of the separation of the crowns was not fully developed at this time, 75 it does show that the transitional period was one in which clear and simple solutions were not always to be obtained. the question now becomes, what happened to the royal prerogative in ireland after 1943 (or rather, 1937, which was the year the constitution of ireland came into force, or 1936, when the executive authority (external relations) act 1936 replaced the king as sovereign, and retaining the king – as an organ – only for certain limited external purposes)? 76 it has been claimed that state inherited the royal prerogative. unfortunately this does not seem to be correct. in the case of byrne v ireland 77 the supreme court of ireland categorically established that the irish republic did not inherit the royal prerogative. 78 it was apparently excluded – indeed this occurred in 1922, 79 rather than in 1937, or in 1949, when ireland became officially as well as effectively a republic. had the royal prerogative been included in the 1922 constitution, or subsequently assigned to the irish state, it would have transferred to the new one in 1937; however it is not clear that it was included. no express provision was made for royal prerogatives in the 1922 constitution. 80 certain royal prerogatives continued to be exercised by the king until 1936. the royal prerogatives were left with the king after 1922, and not incorporated into the constitution. the executive authority (external relations) act 1936 restricted the powers of the crown to signature of treaties and accreditation of envoys. the act itself did more than restrict the powers of the crown. in an adroitly 75 generally, see noel cox “the control of advice to the crown and the development of executive independence in new zealand” (2001) 13(1) bond law review 166. 76 constitution (amendment no 27) act 1936 (eire). 77 [1972] ir 241 (sup ct (irl)). 78 supported by webb v ireland [1988] ir 353 and geoghegan v institute of chartered accountants [1995] 3 ir 86. 79 the constitution of saorstát éireann 1922. 80 kevin costello “the expulsion of prerogative doctrine from irish law: quantifying and remedying the loss of the royal prerogatives” (1997) 32 irish jurist 145 at 164. the gradual curtailment of the royal prerogative 16 worded section, 81 it was provided that, from the passage of the act (12 th december 1936), the king “cease[d] to be king” for “all other (if any) purposes”, except for those of s 3(1). the king for the purposes of s 3(1) would be the person who would be his successor under the law of the irish state – the act provided for the abdication of king edward viii. section 3(1) does not make the „king‟ king of ireland, but rather provides that the king of australia, canada, great britain, new zealand, and south africa, had certain limited and defined responsibilities with respect to irish foreign relations. on december 29 th 1937 a new constitution entered into force, which was republican in form, if not in name. it made no mention of the king as sovereign, who had effectively been removed as of the precious december by the executive authority (external relations) act 1936. this act continued in force. the king as sovereign was no longer the head of the irish executive, but merely an organ or instrument, authorised by the government of ireland, to play a specific role in external affairs. article 49 of the new constitution provided for the transmission of the powers, functions, rights and prerogatives held by the irish state before 11 th december 1936, 82 to the oireachtas. the crucial elements to note are that the powers that were transferred under article 49 were those held by the state at that time, and that these powers were transferred to the legislature, not the executive. although the executive authority (external relations) act 1936 had effectively excised the king as of the 12 th december 1936, the new constitution preserved all „prerogatives‟ held by the irish state as of the previous day. the question then becomes this: were the royal prerogatives of the king held by the irish state on 10 th december 1936? if they were, then they were inherited, under the 1937 constitution, by the oireachtas. if they were held by the king, as distinct from the state – if that distinction could be made – then they were not inherited. it would be usual to assume that the powers of the king would be counted among the powers of the state. in the 1922 constitution the king was envisaged as being part of the state. 83 article 2 stated that “all powers of 81 executive authority (external relations) act 1936 (ireland), s 3(2). 82 the executive authority (external relations) act 1936 (ireland) provided that edward viii remained king in the irish free state until 12 th december 1936. the effect of article 49(1) was that none of the royal prerogatives held by king george vi were transferred. there is also an argument in ireland that since the irish free state had not been consulted as to the abdication of edward viii he remained king of ireland until the office was abolished. 83 though he was, in the 1922 constitution, part of parliament: “all powers of government and all authority, legislative, executive, and judicial, in ireland are the denning law journal 17 government and all authority, legislative, executive, and judicial, in ireland are derived from the people of ireland, and the same shall be exercised in the irish free state (saorstát eireann) through the organisations established by or under, and in accord with, this constitution”. article 51 provided that “the executive authority of the irish free state (saorstát eireann) is hereby declared to be vested in the king, and shall be exercisable, in accordance with the law, practice and constitutional usage governing the exercise of the executive authority in the case of the dominion of canada, by the representative of the crown.” together these would appear to suggest that the royal prerogative – which is probably not mentioned in the constitution because it is regarded as being a distinct type of law – would be a „prerogative of the state‟. the 1937 constitution stated that “the powers, functions, rights and prerogatives held by the irish state” before 11 th december 1936 were inherited by the new constitution. articles 12 and 51 of the 1922 constitution could be interpreted as embracing the royal prerogative as part of the powers, not of the constitution per se, but of the king as the person in whom was vested the executive authority of the irish free state. however, in 1922 the concept of the division of the crown was not well developed, and it is likely that the royal prerogative was not intended to be patriated in this manner. indeed, it would seem that the british government was opposed to a transfer of the office to the control of the irish free state because of the concern that this would harm the unity of the crown and the royal prerogative. this attitude could only be maintained if the royal prerogative is seen as being distinct from the „executive authority‟ of the 1922 constitution. thus it is not clear whether the royal prerogative was a „prerogative held by the irish state‟, and therefore inherited by that state in 1937. although it might be a conceptually stronger argument to assert that the royal prerogative was included in the 1922 constitution, we are bound by the decisions in byrne v ireland, 84 and subsequent cases, that the royal prerogative was not transferred to the irish state. the safest conclusion is that the royal prerogative was not transferred to the irish government in 1922, or subsequently prior to 11 th december 1936. this illustrates the dangers of ignoring the royal prerogative, because of its derived from the people of ireland, and the same shall be exercised in the irish free state (saorstát eireann) through the organisations established by or under, and in accord with, this constitution” (article 12). 84 [1972] ir 241 (sup ct (irl)). the gradual curtailment of the royal prerogative 18 comparatively narrow scope, or even of simply abolishing it – the very uncertainty of the prerogative is both a curse and a blessing. 85 the irish experience may be compared and contrasted with that elsewhere. it would, in principle, be easy to simply enact that the executive powers of the state are vested in the sovereign – or the president, in the case of a republic. this is actually done in most realms. for example, the belize act 1981, the schedule of which contains the constitution of belize, simply provides that: “the executive authority of belize is vested in hm.” 86 similarly s 61 of the commonwealth of australia constitution act 1900 87 provides that: “the executive power of the commonwealth is vested in the queen and is exercisable by the governor-general as the queen‟s representative, and extends to the execution and maintenance of the laws of the commonwealth.” however, the constitutional provision alone isn‟t a satisfactory basis for executive authority, and in all these latter instances the royal prerogative remains. this has proven to be of benefit, as in tuvalu, where the governor general was held to have had discretion to act in “his own, deliberate judgement”, despite the stricter wording of the constitution. 88 abolition of the royal prerogative presents some difficulties, both in codifying the law, and also in determining precisely what should be covered. codification, by its very nature, presupposes that it is possible to provide a precise list of the required powers of the executive. conclusion the replacement of the royal prerogative with statutory authority, whether piecemeal or in its entirety, may be justified on that grounds that this would allow greater parliamentary control of the executive. whilst this might appear logical from the viewpoint of providing a democratic mandate for 85 this latter is seen most clearly in the national security cases, which rely heavily on the malleability of the prerogative. 86 s 36(1). 87 63 & 64 vict c 12 (uk). 88 amasone v attorney general (2003) tvhc 4 (tuvalu); constitution of tuvalu (1978). see also billy hilly v the governor-general of the solomon islands [1994] sbca 1 (ca of solomon islands). the denning law journal 19 governmental action, it risks making a significant change to the constitutional balance. ministerial responsibility already allows parliament to exercise a considerable degree of control over the executive, including the use of the royal prerogative. but the principle of separation of powers surely requires that the executive ought to be free, at least to some degree, to exercise its proper functions without undue interference from the other branches of government. already the royal prerogative is largely subject to judicial review (for instance, in r (on the application of bancoult) v secretary of state for foreign and commonwealth affairs 89 [the house of lords saw “no reason why prerogative legislation should not be subject to review on ordinary principles of legality, rationality and procedural impropriety in the same way as any other executive action”]), and it is only exercised – with rare exceptions – on the advice of ministers responsible to parliament. arguably the independence of the royal prerogative from parliamentary control is its strength, not a weakness. perhaps more fundamentally, the royal prerogative already offers a system of legal powers, immunities and privileges with their own legitimacy and authority, well developed, flexible and venerable. while some reforms may be appropriate, in general the royal prerogative is too valuable to be lost, or seriously weakened, merely to confer greater control by majoritarian parliamentarians over the executive. reliance on judicial review of the royal prerogative (and its preservation) ensures that there are greater checks and balances in the constitution, especially in the united kingdom, with the advent of the new supreme court, and in the absence of a written constitution. 89 [2008] ukhl 61; [2008] 3 wlr 955. for the purposes of right to self-determination, how does one define people in context of kashmir 19 the denning law journal 2013 vol 25 pp 19-41 protecting private property in china – whose property? dr. zhang xiaoyang* abstract the importance of protecting private property in china has now ascended to the same level as that of safeguarding public assets which has traditionally been a top priority for socialist nations. this article will firstly and heavily expound on the rationale behind the availability and at certain times the marginalisation of protecting private property de jure and de facto during some momentous stages in modern chinese history. it will then touch on a lingering problem relevant to today‟s chinese society arising from the drainage of state assets, a phenomenon having occurred in the transformation process of china‟s economic regimes over the most recent decades. it finally argues that while protecting the right to lawful private property is not a matter in dispute, pursuing the protection of private property shall in no way lead to the weakening of sticking to the core value of justice and egalitarianism, a key to ensuring a sound socialist institution. key words protection of private property; constitutional pledge; justice and egalitarianism 1. introduction in china‟s 247-article property rights law enacted in 2007, a few lines contained in articles 3 and 4 turn out to be most politically conscious, 1 as they underline the notion of equally protecting private property in * xiaoyang zhang, phd, associate professor, accounting, finance and law strand, lee shau kee school of business & administration, the open university of hong kong. the author would like to thank the reviewers for their helpful suggestions on an earlier version of this article. 1 in light of china‟s property rights law, market participants in china are ensured to be granted equal legal status and vested with equal right of development (art 3, para 3); the same as in the case of the state or collective organisations, private persons‟ property rights will also be protected by law against infringement (art 4). protecting private property in china – whose property? 20 juxtaposition with public assets. this could be viewed as something novel in a socialist nation like china where conventionally the public ownership system is supposed to invariably occupy a preponderant place. exalting such kind of equal protection is in a certain sense a breakthrough beyond the orthodox marxism on which the socialist ideology embedded in china has long rested. 2 as a matter of fact, since the founding of the people‟s republic of china in 1949 with the chinese communist party commencing to lead the nation until the present time, protecting private property has consistently been exhibited as a constitutional pledge, though the actual protection at many times could have been perceived as more formal but less substantive. the past sixty-odd years had perspicuously witnessed the various forms of formation and development of china‟s laws, regulations and policies, which, at different times being put forward to meet the demands of the changing political and economic situations, had indispensably absorbed the philosophies of china‟s two paramount leaders mao zedong (1893-1976) and deng xiaoping (1904-1997). as of the early 20 th century, mao had written profusely on china‟s new democratic revolution and on the building up of a socialist nation; his thoughts are a crucial source of ideological guidance for the chinese communist party. in the post-mao era, deng masterminded the grand policies of carrying out the economic reform and opening-up which started to be implemented in the late 1970s. he led the nation embarking on a road towards architecting a socialist society bearing unique chinese features. the past institutional frameworks erected under mao and deng‟s political influences constituted the most important legacies pertaining to the evolution of china‟s economic regimes over all those years since the people‟s republic of china was launched and including the more recent reform and opening-up period in deng‟s time, the ramifications of which are still reverberating strongly even down to the present. over the past few decades in the wave of china‟s transformation from a centrally planned economy to a market economy as it is today, most chinese people have achieved economic gains, though to varying degrees. statutorily putting into practice the tenet of equal protection of private property by relying on the context of what is specifically provided for in this respect in the property rights law may have looked more than necessary at the time than at 2 ladany asserted in the preface to his book on the chinese communist party and marxism that „marxism is the soul and inspiration of the communist party‟, laszlo ladany, the communist part of china and marxism, 1921-1985: a self-portrait (hong kong, hong kong university press 1992) ix. marx articulated in his manifesto of the communist party that „[a]bolition of private property‟ is a goal of communism, samuel moore (trs), karl marx and frederick engels, manifesto of the communist party (moscow, progress publishers 1977) 50. the denning law journal 21 any other time in modern chinese history. this is arguably the cause of the importance of protecting private property having been escalated to a level unprecedented previously. however, protecting private property ought to be distinguishable from installing an impervious wall to the effect that the illegally obtained assets in the meantime may also be well protected due to the inability in many circumstances to tell a needed distinction which might prove difficult in reality. how has china‟s institutional framework for protecting private property evolved into the state as it currently is? could the correctness of giving protection to private property be ensured both legally and morally substantiated? should the socialist core value of justice and egalitarianism be upheld in a more adamant way so that chinese commoners could share more justly the fruits of the nation‟s economic success? these are the questions which may plague many people‟s mind at all times. 2. the new democratic revolution: maintaining the status quo of private property china‟s new democratic revolution roughly spanned the first half of the 20 th century in which the people‟s republic of china was established in 1949, displacing the republic of china (then controlled by the chinese nationalist party) in mainland china. it is in fact a terminology derived from the bifurcation made by mao zedong. in his work on the chinese revolution, mao underlined the pivotal role played by the new democratic revolution (as opposed to the old democratic revolution preceding it) in modern china‟s democratic revolutionary process which had been described by him as an integral part of the world socialist revolution. 3 even at the time well before the chinese communist party gained the ruling power in china, mao had pointed out that the terminal objective of the chinese revolution is to attain socialism and communism, opining that when the conditions are ripe it would be the task of the chinese communist party to accomplish the transition for china to enter into the phase of a socialist revolution from the new democratic revolution. 4 however, he 3 see generally zedong mao, „xin min zhu zhi yi lun‟ (the new democracy) in mao zedong xuan ji di er juan (the selected works of mao zedong, vol 2) (chinese, beijing, people‟s press 1991) 666-672. 4 zedong mao, „zhong guo ge ming he zhong guo gong chan dang‟ (the chinese revolution and the chinese communist party) in mao zedong xuan ji di er juan (the selected works of mao zedong, vol 2) (chinese, beijing, people‟s press 1991) 650651. protecting private property in china – whose property? 22 positioned the new democratic revolution, the starting point of which is the outbreak of the may fourth student movement in 1919, as an indispensable stage that china must go through on its way to become a socialist nation. 5 in his view, china‟s new democratic revolution is a bourgeoisie democratic revolution but led by the proletariat who therefore must always prepare to start building up a socialist society once the process of the new democratic revolution is complete. 6 mao worked out a set of economic canons tailored to the period of china‟s new democratic revolution. he submitted the ideas of maintaining the co-existence of three specific forms of ownership system („state ownership‟, „private ownership‟, and „collective ownership‟) and of ensuring that legitimate private property would be protected. 7 he accentuated that the chinese nation to be founded as the result of the success of the new democratic revolution would be a new type of democratic republic differing from those capitalist republics in europe and america and also not akin to a soviet-style totalitarian state. 8 he foresaw that in the new chinese nation that was coming into being, the state ownership system would dominate all spheres of economic life pertinent to core national and civilian interests; 9 the private, capitalist-style economy could continue to exist, provided that it would do no disservice to the state-owned economic system; 10 the bourgeoisie‟s private property would not be confiscated; 11 each peasant would be given a plot of land as his private property. 12 mao‟s theories greatly impacted the economic policies of the new democratic revolution subsequently formulated and executed in the form of law by the chinese communist party. typical examples are the blueprint for land law of china 1947, the land reform law 1950, and the common 5 ibid 647. 6 ibid. 7 zedong mao, „lun lian he zheng fu‟ (the coalition government) in mao zedong xuan ji di san juan (the selected works of mao zedong, vol 3) (chinese, beijing, people‟s press 1991) 1058-1059. see also qiaomu hu, „hu qiaomu hui yi mao zedong‟ (hu qiaomu‟s reminiscences of mao zedong) in shujun zhang and sheng qi (eds) hong se jue ce – zhong guo gong chan dang zhong da hui yi shi lu shang juan (decision-making in the revolution – the documented important meetings of the chinese communist party, vol 1) (chinese, changsha, hunan people‟s press 2006) 197. 8 mao (n 3) 675. 9 ibid 678. 10 ibid. 11 ibid. 12 ibid. the denning law journal 23 principles 1949 which filled the void left by the absence of a formal chinese constitution which had not come into existence until 1954. against the background of the blueprint for land law of china 1947 and the land reform law 1950, a land reform movement led by the chinese communist party was carried out in china‟s rural areas during the period of around 1947 to 1953. 13 it gave rise to rural landlords deprived of their land which was then distributed to the peasants with little or without land and to the affected landlords alike. 14 consequently, all chinese peasants, regardless of their economic status, became able to live on their privately-held land. pursuant to the common principles 1949, china‟s feudal and semi-feudal land ownership system at the time would be abolished and changed into a peasant-owned land system; 15 the assets of the state and co-operatives would be protected; 16 the economic interests and private property of workers, peasants and the bourgeoisie would be protected also; 17 the state would centrally control and run, under a state-run economic system which is socialist in nature, all the industries pertinent to national economic lifelines and core civilian interests; 18 the co-operative economic sector, which is semi-socialist in nature, would constitute an important segment in china‟s national economy; 19 developing the private-sector economy would be encouraged, given that it could benefit national and civilian interests; 20 and the national capitalist economy taking the form of a collaboration between state funds and private capital would be permitted to exist as well. 21 it is not difficult to figure out at this point that the common principles together with the blueprint for land law and the land reform law had explicitly laid out mao‟s expectation in regard of the economic policies applied to the new democratic revolution, a period that would last prior to china setting off for its socialist destination: property ownership takes diversified forms; private property is protected; all peasants have their own land; private economic sectors would not head for considerable debilitation. 13 see generally richard phillips, china since 1911 (london, macmillan 1996) 165166. 14 blueprint for land law of china 1947; land reform law 1950, arts 2 and 10. see also generally suinian liu and qungan wu (eds), china’s socialist economy – an outline history (1949-1984) (beijing, beijing review 1986) 46-54. 15 common principles art 3. 16 ibid. 17 ibid. 18 common principles art 28. 19 common principles art 29. 20 common principles art 30. 21 common principles art 31. protecting private property in china – whose property? 24 although a fine line may have to be trod between upholding the importance of a public ownership system and ensuring the sustained enjoyment of the right to private property, the general framework established at the time called for no immediacy of taking a huge leap forward towards socialism from the path of the new democratic revolution. in this connection, the status quo was not supposed to be distorted, but would be maintained until the new democratic revolution could continuously and more naturally complete its well-designed destiny. however, the ongoingness of the new democratic revolution eventually failed to have a lengthy life span; it came to an end in 1953. 22 with the promulgation of china‟s first constitution in 1954, the weather vane changed; the building up of socialism became the nation‟s main mission. 3. the socialist transformation campaign: building up the dominace of public ownership the formation of the political and legal basis the arrival of the new chinese republic led by the chinese communist party was in the teeth of a treacherous international environment where in the 1950s the mainstream ideology embraced in most western nations was in diametrical contradiction to communism. isolation and animosity from the west deeply engulfed china which was eager to win wide international recognition beyond the limited scope of a few socialist friends. the situation became worse after it joined the korean war in the early 1950s. as a new sovereign state whose economic strength and technological capacity lagged far behind those of western countries, china had little experience of carrying out modern economic development and hammering out the necessary political and legal institutions. foreign aid must be sought; but apart from the soviet union, few allies could competently be relied upon at the time. the world then had two clearly divided camps – „a capitalist camp‟ and „a communist camp‟; while ideologically belonging to the latter, china had not been able to instantly acquire the trust of the soviet union, which, under the leadership of joseph stalin at the time, was at the top rung of the world communist front. 23 22 qiufeng ji and hwei-shing cheng (trs), immanuel cy hsu, the rise of modern china (vol 2) (chinese, hong kong, the chinese university press 2002) 655. 23 see generally qiming sun, zhong su guan xi shi mo (history of sino-soviet relations) (chinese, shanghai, shanghai people‟s press 2002) 119-121; zhihua shen, zhong su tong meng de jing ji bei jing: 1948-1953 (the economic background of the sino-soviet alliance: 1948-1953) (chinese, hong kong, hong kong institute of asia-pacific studies/the chinese university of hong kong 2000) 2-22. the denning law journal 25 chinese leaders understood that in order to secure stalin‟s support, they would have to succumb to the hierarchical authoritativeness asserted by the soviet union and to learn humbly from russia‟s experience across a wide spectrum of social life. 24 on 14 february 1950, in the presence of mao and stalin, the sino-soviet treaty of friendship, alliance and mutual aid, along with other agreements on bilateral sovereignty and economic interests, were signed in moscow between the two nations. 25 the treaty would run for thirty years. 26 articles 4 and 5 of the treaty clearly illustrate the general principles to be adhered to by the two nations with respect to the alliance created. by article 4, the two nations would „consult each other in regard to all important international problems affecting the common interests of the soviet union and china, being guided by the interests of the consolidation of peace and universal security‟. 27 under article 5, the two nations pledged „to develop and consolidate economic and cultural ties between the soviet union and china, to render each other all possible economic assistance, and to carry out the necessary economic co-operation‟. 28 although divergence of opinions, skirmishes and mistrust between the two communist parties were far from being played down outright, forging a strategic alliance like that was undoubtedly an epoch-making event in the history of sino-soviet relations. 29 stalin believed that against the backdrop of the ongoing cold war, china‟s accession into the socialist camp would facilitate securing and enhancing russia‟s strategic interest in asia against the us. 30 for china, the sinosoviet alliance would enable it to gain an assured access to the soviet union‟s comprehensive assistance. 31 the bond established was emblematic of a coming era in which china would garner the political basis for heading towards socialism by switching from carrying on the new democratic revolution to engaging in a large scale process of sovietisation in order to construct a socialist society within a short space of time. 32 24 see generally sun, (n 23) 121-123; paul auster and lydia davis (trs), jean chesneaux, china: the people’s republic, 1949-1976 (new york, pantheon books 1979) 29. 25 sun (n 23) 139-140. 26 see peter jones and sian kevill, china and the soviet union 1949-1984 (new york, facts on file publications 1985) 2. 27 ibid. 28 ibid. 29 see generally sun (n 23) 142-144; shen (n 23) 22-50. 30 shen (n 29) 45-46. 31 ibid 50. 32 see generally chesneaux (n 24) 56. protecting private property in china – whose property? 26 in this context, spearheaded by the rural collectivisation and urban industrialisation movements, a socialist transformation campaign started in china in the 1950s. the constitution 1954 timely laid down the required legal basis for launching the campaign, manifesting it as gradually achieving the socialist industrialisation and realising a socialist transformation in agriculture and craftsmanship sectors and in those industrial and commercial sectors whose essential nature is capitalism. 33 from the perspective of who would exercise control over the means of production which is crucial to a nation‟s development, the constitution 1954 mentions four types of ownership system – (a) state ownership; (b) cooperative ownership; (c) individual labourer‟s private ownership; and (d) individual capitalist‟s private ownership. 34 under the constitution 1954, the state-run economy (the socialist economy in the form of all people‟s ownership) is displayed as being in the most prominent position on the hierarchy of all the economic systems operating in china at the time; 35 the cooperative economy is prescribed to be of a socialist or semi-socialist character. 36 thus, in principle both the state-run economy and the cooperative economy could fall into the purview of the socialist public ownership regime. by the constitution 1954, protection would be given to a variety of private property right, including individual peasants‟ private land ownership right, 37 individual peasants and other individual labourers‟ right of private ownership over their means of production, 38 individual capitalists‟ right of private ownership over their means of production and capital, 39 private individuals‟ right over their lawful incomes, savings, houses, etc, 40 as well as private individuals‟ succession right to private property. 41 however, the said protection ought not to be construed as tantamount to encouraging the development of private ownership economy. conversely, in light of the constitution 1954, the agricultural sector, the craftsmanship sector, and the industrial and commercial sectors are the target of rectification. the agricultural and craftsmanship sectors would face collectivisation. 42 as for the industrial and commercial sectors, their private ownership would eventually 33 constitution 1954, preamble, para 2. 34 constitution 1954, art 5. 35 constitution 1954, art 6, para 1. 36 constitution 1954, art 7, para 1. 37 constitution 1954, art 8, para 1. 38 ibid; and constitution, art 9, para 1. 39 constitution 1954, art 10, para 1. 40 constitution 1954, art 11. 41 constitution 1954, art 12. 42 constitution 1954, art 7-9. the denning law journal 27 be dismantled and replaced by the all people‟s ownership system. 43 in other words, any private economy would be substituted with the socialist public ownership regime, though perhaps in a gradual and less traumatised fashion. and once these could become a reality, the integrity of the rights to private property should have unavoidably weathered some stormy changes, the effects of which could have been far-reaching to the nation and to the individual citizens affected for a hardly estimably long time in their lives and in history. rural collectivisation and urban industrialisation carrying out the socialist transformation campaign in china was predicated on the presumption that under a well organised public ownership regime, the society‟s capital, natural and human resources could be mobilised within the shortest time and utilised in the nation‟s best interests; it would be far less difficult to accomplish a grand action like this under the auspice of a socialist system where a sole ruling party would face no endless debates in the parliament and no ubiquitous interference of opposition parties as what happened in the capitalist west. as to the carrying out of collectivisation and industrialisation, soviet russia had precedents. collectivisation and industrialisation, the two themes characteristically embodied in soviet socialism, was a prelude to this red empire‟s crusade to becoming a socialist superpower in the mid 20 th century on the basis of exacting a vast transformation of private property in soviet society. being the first socialist nation in the history of mankind, the soviet union was a pioneer experimenter in engineering rural collectivisation, 44 which put into practice the bolsheviks‟ theory about the superiority of collective agriculture and their inclination towards „regarding private ownership of land as a major obstacle to the victory of socialism‟. 45 the result was that numerous collective farms were established, efficaciously smothering private agriculture in the soviet union. 46 private rights and interests belonging to landlords and wealthy peasants (the „kulaks‟) were callously quashed, 47 thus perfectly matching stalin‟s expectation of the „elimination of the kulaks as a class‟. 48 on the other hand, in the minds of the 43 constitution 1954, art 10, para 2. 44 see generally peter kenez, a history of the soviet union from the beginning to the end (cambridge, cambridge university press 1999) 88. 45 ibid 84. 46 see generally ibid 85-87. 47 see generally ibid. 48 ibid 86. protecting private property in china – whose property? 28 bolshevik leaders, the industrialisation focusing on heavy industries was their „primary task‟. 49 the accomplishment of the industrialization was lauded by them as „the best proof of the superiority of their political, social, and economic system‟, and they revelled in the conviction that the soviet economy „was capable of catching up with the advanced capitalist west‟. 50 by 1937, private agriculture had become obsolete in the soviet union; 51 the existence of private enterprises in industrial sectors had virtually ceased. 52 china wished to push through its rural collectivisation and urban industrialisation also. but the approach deployed was comparatively more moderate. chinese leaders initially made a less ambitious estimation, reckoning that it might take fifteen, twenty or even thirty years to complete china‟s new democratic revolution before a solid economic foundation (in terms of achieving the industrialisation in particular) could have been laid out for the nation to effect an all-encompassing, one-step transformation into socialism. 53 however, the challenging global and peripheral situation forced chinese leaders to size up the original prediction again; then they were stunned to become cognisant of the fact that developing national defence must be prioritised, and this would critically hinge on a modern heavy industry the facilities and techniques of which china possessed all but scant command at the time. 54 on realising china‟s national industrialisation, private entrepreneurs were deemed not capable of making any significant contribution; the backward private agriculture was viewed as an ostensible hindrance. 55 in 1953, the central committee of the chinese communist party endorsed an official order released to the public the general policy guidelines for the transitional period, unveiling a new central plank of government policy which denoted an important change of direction made to the long-term development roadmap prepared for the ensuing decades. the „transitional period‟ is depicted in this document as a time span roughly ranging from the founding of the people‟s republic of china onwards to the accomplishment 49 ibid 89, 91. 50 ibid 92. 51 ibid 85. 52 j m roberts, shorter illustrated history of the world (oxford, helicon 1993) 507. 53 huamin gao, chong jing shi xian guo jia gong ye hua – yu guo du shi qi zong lu xian (anticipating the realization of national industrialization – the general policy guidelines for the transitional period) in suhua zhang (ed) mao zedong yu zhong gong dang shi zhong da shi jian (mao zedong and major historical events of the chinese communist party) (chinese, beijing, central literature press 2001) 269. 54 ibid 270-271. see also generally phillips (n 13) 172-173. 55 gao (n 53) 272. the denning law journal 29 of a socialist transformation in the nation. 56 in the context of this document, the task of the chinese communist party in the transitional period is to gradually accomplish the socialist industrialisation and realise a socialist transformation in agricultural and craftsmanship sectors and in the private industrial and commercial sectors within a rather long period of time. 57 doing so is to let the system of socialist public ownership over the means of production eventually form the sole basis of china‟s national economy. 58 while the estimated length of the transitional period prescribed in that document is around fifteen years commencing from 1953, 59 the actual development turned out to be far more rapid than originally projected. in 1957, a massive rural collectivisation became reality. 60 by the end of 1956, the socialist transformation of private industrial and commercial sectors had basically been accomplished. 61 all the targets of socialist transformation set out in the general policy guidelines for the transitional period have been met in 1956; such an outcome exerted a profound effect on china‟s economy and national strength, and also on treating private property. 62 the engine that drove china‟s socialist transformation was initially ignited in rural areas early in the 1950s, since the small-scale, individualised private agriculture was most susceptible to surrendering to a large-scale, collectivised production fashion. 63 china‟s rural collectivisation has in fact undergone several development stages, ultimately culminating in the widespread establishment of „the people‟s commune‟ from 1958 onwards. 64 the people‟s commune had once been highly regarded at the time since it supposedly conformed to the socialist utopian ideals in terms of having available the common ownership of property and the capacity to perform a 56 general policy guidelines for the transitional period, part i, item vi. see also gao, ibid 274; yihua jiang, guo du shi qi li lun yu shi jian qu dai xin min zhu zhu yi li shi bei jing de yi xiang kao cha (an investigation on the historical background against which the theories and practices of the transitional period replaced those of the new democracy) in jingping wu and siyan xu (eds) yi jiu wu ling nian dai de zhong guo (china in the 1950s) (chinese, shanghai, fudan university press 2006) 50. 57 general policy guidelines for the transitional period (n 56); gao (n 56); jiang (n 56). 58 general policy guidelines for the transitional period (n 56); gao (n 56); jiang (n 56) 50-51. 59 general policy guidelines for the transitional period (n 56); gao (n 56). 60 hsu (n 22) 661. 61 xing su, xin zhong guo jing ji shi (the economic history of new china) (chinese, beijing, central party school press 1999) 314. 62 ibid 248. 63 liu and wu (n 14) 129. 64 hsu (n 22) 661-663. protecting private property in china – whose property? 30 comprehensive range of social functions. 65 the emergence of the people‟s commune ended chinese peasants‟ private land ownership and also halted their ownership over other means of production. rural land ownership became a collectively-owned property right; this means that at that time only by working for rural collective organisations could chinese peasants use the land to carry out agricultural production. 66 in lockstep with the proceeding of the rural collectivisation, the urban industrialisation was carried out as another aspect of the socialist transformation campaign targeting private enterprises in chinese cities. private entrepreneurs had to give up or at least to significantly decontrol their business as they were „encouraged‟ to collaborate with the government by having their privately held enterprise converted into a kind of joint venturelike business in which the state would hold a certain percentage of equity and also step in to manage. 67 the socialist transformation of private enterprises across all business lines was achieved in china in 1956; this was evinced on the countrywide basis by the establishment, in the industrial and commercial sectors, of joint venture-like enterprises owned by the state and private entrepreneurs who could retain some stake in the business, and by the formation of co-operatives in the craftsmanship sector which could then count as being owned collectively and equally by businessmen and/or workers other than by private individuals. 68 by 1966, all the said joint venture-like enterprises evolved into one hundred per cent state-owned, state-run enterprises, or became collectively-owned enterprises; in both cases, the traces of capitalism were ironed out and the enterprises concerned were seen to have been fully integrated into the socialist public ownership system. 69 65 suhua zhang, zai li xiang yu xian shi jiao zhi de shi jie li – yu da yue jin he ren min gong she hua yun dong (in a world where dream and reality intertwine – the movements of the „great leap forward‟ and the people‟s communes) in zhang (n 53) 328-329. 66 su (n 61) 434; 67 see generally carl riskin, china’s political economy – the quest for development since 1949 (oxford, oxford university press, 1988) 95-99. 68 see su (n 61) 313-315, 335. 69 see generally fang li „xi wo guo cai chan quan jie gou de er yuan xing te zheng‟ (an analysis on the feature of dualism of china‟s property rights structure) (chinese) <http://www.cntheory.com/news/llzh/2009/1010/0910109231009h9fh77295ch0f fk7f1.html> accessed 10 june 2013; mengfu huang „qu xiao ding qi gong si he ying che di zhuan wei guo ying‟ (discontinuing dividend payments – thoroughly converting those businesses jointly owned and run by the state and private entrepreneurs into wholly state-run enterprises) (chinese) <http://lz.book.sohu.com/chapter-18387-114210315.html> accessed 10 june 2013. the denning law journal 31 the rural collectivisation, along with the urban industrialisation that was carried out through nationalising private enterprises in urban regions, could hardly be interpreted as something other than a determined action taken by the chinese government to switch into a fast lane towards the full-scale implementation of socialism. the accomplishment of the socialist transformation campaign signified that china had categorically entered the phase of socialism. in the ensuing decades, the nation had operated within the institutional framework of a centrally planned economy until the early 1990s when being guided under deng xiaoping‟s theory china abandoned the planned economy model and adopted a socialist market economy system. however, viewed in a historical perspective, the positive role played by china‟s socialist transformation campaign ought not to be unfairly underestimated. the highly organised chinese peasants played an irreplaceable role in accumulating a significant part of the needed funds for developing china‟s industries. in that sense, the rural collectivisation made a great contribution to china‟s industrialisation scheme which was brought to fruition where a series of backbone industrial sectors surfaced, and in particular a staunch national defence became available constituting an all-toovital deterrent to any likely foreign invasions. a strong military ensured china‟s building up of socialism a relatively peaceful environment; a preliminary industrial self-sufficiency formed part of the primary foundation for the nation‟s economic take-off in the later time when the reform and opening-up policy was overwhelmingly dispensed. but of course it would not be possible to make these achievements at no expense to individuals‟ rights to their private property and interests which are known to have been disregarded or sacrificed to varying extents, either willingly or otherwise. 4. the constitutional pledge while china sweepingly completed the socialist transformation of its economy in the 1950s, protecting private property as a constitutional pledge has never been missed in any chinese constitution historically. but in the centrally planned economy era, china‟s emphasis on keeping up the dominance of public ownership economy generally frustrated the development of the private economy and consequently resulted in the respect for and protection of private property given far less sufficient weight. a tendency of striking out such an imbalance could be singled out from the relevant provisions set forth in the three chinese constitutions that were promulgated before china instituted the reform and opening-up policy in the late 1970s. despite the fact that the cardinal stance over the protection of legitimate private property remains the same as shown in these three constitutions, ie the protecting private property in china – whose property? 32 constitution 1954, 70 the constitution 1975, 71 and the constitution 1978, 72 in comparison with what is stipulated in the constitution 1954, the permitted forms of ownership system of the means of production prescribed in the constitution 1975 and the constitution 1978 are narrowed down to two choices only – (i) socialist all people‟s ownership, and (ii) socialist collective ownership. 73 and under the constitution 1975 and the constitution 1978, the state-run economy is prescribed as the leading force of the national economy. 74 thus it could be well inferred from these three constitutions (especially the latter two) that standing by the dominance of public ownership gained apparent ascendancy over safeguarding privately held assets during that period. while in principle the constitutional pledge of protecting private property had not been formally retracted, the actual role played by it had certainly in large part been marginalised at the time. with the forms of ownership system becoming obviously lopsided, the centrally planned economy appeared not able to yield abundant economic fruits as having been longed for from a socialist society. however, chinese leaders have never ceased in their endeavour to find a suitable route for the nation‟s development. deng xiaoping tried hard to uncover the long-term mystique of what socialism really ought to be. 75 robert owen (an utopian socialist) used to have his following dream of socialism: „what ideas individuals may attach to the term “millennium” i know not; but i know that society may be formed so as to exist without crime, without poverty, with health greatly improved, with little, if any misery, and with intelligence and happiness increased a hundredfold: and no obstacle whatsoever intervenes at this moment except ignorance to prevent such a state of society from becoming universal.‟ 76 other critiques portrait the characteristics of socialism as „egalitarianism‟ staying away from „those practices and institutions which undermine or stifle sociability and cooperation‟. 77 70 constitution 1954 (n 37-41). 71 constitution 1975, art 9, para 2. 72 constitution 1978, art 9. 73 constitution 1975, art 5, para 1; constitution 1978, art 5, para 1. 74 constitution 1975, art 6, para 1; constitution 1978, art 6, para 1. 75 keqin tian (ed), deng xiaoping li lun gai lun (an outline of deng xiaoping theory) (chinese, beijing, higher education press 1999) 50. 76 this excerpt is quoted from robert owen, „robert owen‟s quest for universal harmony – extracts from his published works‟ <http://www.robertowen.com/quotes.htm> accessed 10 june 2013. 77 robert eccleshall, alan finlayson, vincent geoghegan, michael kenny, moya lloyd, iain mackenzie and rick wilford, political ideologies – an introduction (london, routledge 2003) 75. the denning law journal 33 but deng‟s probe is more down-to-earth. in accordance with his findings, the principal task of socialism is to emancipate and augment productivity; 78 building up socialism should follow a fundamental direction towards eradicating exploitation and getting rid of extremes of wealth and poverty, 79 in order that all chinese people could prosper eventually. 80 in his view, a market economy is not necessarily at odds with socialism; regardless of how it is named (a planned economy or a market economy), the term itself used by a socialist nation to describe its primary economic institution is not essential, so far as under such an institution the nation‟s economic growth could be sustained in a fast and healthy way resulting in a marked improvement of people‟s living standards on an overall basis. 81 meanwhile, he was clearly aware of the difficulty of achieving common prosperity, and conceded that realising common prosperity in china would not be a quick and easy process but might take a very long time. 82 he thereby posited that calling for immediate, absolute egalitarianism would not really make sense; certain persons and regions in china should be allowed to become rich in the first place well ahead of others, but the final objective would be unchanged, ie avoiding polarisation of wealth and achieving common prosperity. 83 deng‟s theory formed the core of china‟s prevailing doctrines of building up a socialist nation with chinese characteristics, the success of which has been well proved by china‟s economic take-off under the context of executing the economic reform and opening-up policy which had had deng‟s firmest support unfailingly. the formation and implementation of deng‟s theory also effectively gave rise to a statutory re-adjustment of china‟s institutional framework for governing public and non-public ownership economies. the chinese constitution currently in force was originally promulgated in 1982; it underwent amendment in 1988, 1993, 1999 and 2004, respectively, each time begetting an increment in the status and momentousness of china‟s non-public ownership economy enshrined in the constitutional mandate. pursuant to the original version of the constitution 1982, the socialist public ownership system of the means of production, encompassing the forms of all people‟s ownership and collective ownership, is the basis of china‟s 78 tian (n 75) 50; see also richard evans, deng xiaoping and the making of modern china (london, penguin books 1995) 307. 79 tian (n 78) 53; evans (n 78). 80 tian (n 78) 56; evans (n 78). 81 tian (n 78) 59-60; evans (n 78). 82 tian (n 78) 56. 83 ibid. protecting private property in china – whose property? 34 socialist economic system; 84 the state-run economy falls into the category of the socialist economic system in the form of all people‟s ownership and is viewed as the leading force of china‟s economy; 85 the rural co-operative economy led by the people‟s communes or by productive co-operatives is classified as part of china‟s socialist economic system in the form of collective ownership; 86 the urban co-operative economy in the sectors of, eg craftsmanship, manufacturing industry, commerce, and services, etc, is also categorised as part of china‟s socialist economic system in the form of collective ownership; 87 the economy based on the form of sole proprietorship in urban and rural areas, given that it could operate within the allowed business scope prescribed by the law, is deemed a supplement to china‟s socialist public ownership economy; 88 and on the basis of socialist public ownership, china operates a planned economy system. 89 under an amendment made in 1988, the existence and development of the private ownership economy within the boundaries prescribed by the law is permitted; the private ownership economy constitutes a complement to china‟s socialist public ownership economy; the state protects any legitimate rights and interests relating to the private ownership economy. 90 with the amendments made in 1993, the original term „state-run economy‟ is changed to „state-owned economy‟; 91 the wording „the people‟s communes and productive co-operatives‟ is deleted, and china‟s rural co-operative economy is redefined as the one being run under a farmland contracting system; 92 and with the abandonment of the centrally planned economy model impliedly announced, a socialist market economy system is explicitly declared to be implemented in the nation. 93 relative to the amendments made in 1988 and 1993, the amendments made in 1999 could be viewed as a giant jump forward for establishing a new framework that would take in more diversified forms of ownership system. in light of these amendments, china is positioned as still being at a preliminary development stage of socialism; it sticks to an economic system with its public ownership economy as the leading force, but it would also develop 84 constitution 1982 (unamended), art 6, para 1. 85 constitution 1982 (unamended), art 7. 86 constitution 1982 (unamended), art 8, para 1. 87 constitution 1982 (unamended), art 8, para 2. 88 constitution 1982 (unamended), art 11, para 1. 89 constitution 1982 (unamended), art 15, para 1. 90 constitution 1982 (amended in 1988), amendment 1 made to art 11. 91 constitution 1982 (amended in 1993), amendment 5 made to art 7. 92 constitution 1982 (amended in 1993), amendment 6 made to art 8. 93 constitution 1982 (amended in 1993), amendment 7 made to art 15. the denning law journal 35 other types of economy in different forms of ownership. 94 in such a scenario, the importance of the private ownership economy based on sole proprietorship or private business has been greatly enhanced: instead of being described as merely a supplement to the nation‟s public ownership economy, such kind of non-public ownership economy is re-named as an important constituent of china‟s socialist market economy system, and the relating legitimate rights and interests are under state protection. 95 furthermore, under the constitution amended in 2004, developing non-public ownership economies in china will not only be supported but also be particularly encouraged; 96 here, the term „encouraged‟ is a way of expression never used in the past. with the non-public ownership economy in china being strongly countenanced, various productive capacities have been liberated leading to the creation of more and more privately held assets. hence, the availability of substantively protecting private property seems more critical than ever in some people‟s eyes. in fact, as far as protecting private property is concerned, specific stipulations in this regard are discernable from all the chinese constitutions so far promulgated, no matter it relates to the period before or to that after china‟s economic reform and opening-up policy began to be implemented. under the constitution 1954, the constitution 1975, the constitution 1978, and the constitution 1982 as amended in 1988, 1993 and 1999, it is said that china protects the legitimate incomes, savings, houses, and various consumption goods that belong to private individuals. 97 but noteworthily, this expression has been superseded by a provision brought into effect with the passage of the amendments made to the constitution 1982 in 2004: immediately following what is set forth in article 12 that the state protects socialist public assets which are particularised as „sacred‟ and „inviolable‟, 98 article 13 reads that an individual citizen‟s right over his legitimately obtained private property shall not be impinged upon; 99 the state protects an individual citizen‟s private property rights and inheritance rights. 100 here, the constitution is not using the word „sacred‟ to place more conspicuously in the foreground the protection of private property. but it can be generally assumed that safeguarding private property against the menace of impairment, sabotage and unlawful deprivation has since then been attached 94 constitution 1982 (amended in 1999), amendment 14 made to art 6. 95 constitution 1982 (amended in 1999), amendment 16 made to art 11. 96 constitution, art 11, para 2. 97 constitution 1954, art 11; constitution 1975, art 9, para 2; constitution 1978, art 9; constitution 1982 (amended in 1988, 1993 and 1999), art 13, para 1. 98 constitution, art 12. 99 constitution, art 13, para 1. 100 constitution, art 13, para 2. protecting private property in china – whose property? 36 great importance most seriously, especially with the property rights law coming into force. 5. drainage of state assets the constitutional pledge has ensured that private property in socialist china is now under state protection in the same way as public property. the property rights law reinforces this pledge from the perspective of giving prominence to equally protecting private property relative to public assets. such protection is, however, meant to be provided to legitimate private property only. 101 the current dilemma is to make sure that protection is indeed rendered to the lawfully obtained private property. what happens in reality is that a large part of amassed private assets could have come from illegally drained or siphoned state assets. such drainage through defrauding state assets largely occurred in the course of china‟s transformation of its state-owned enterprises aimed at setting up a modern enterprise system. the widespread establishment of state-owned enterprises and their crushing presence in china‟s national economy could be attributed to the socialist transformation campaign and the industrialisation movement completed in the 1950s. 102 from the standpoint of modern corporate management, some critics assert that those old-style, state-owned enterprises have „no production and decision-making rights‟, 103 and apart from lack of autonomy they have obvious defects of low efficiency and lack of performance-related rewards and stimulus. 104 for this reason, the reform of china‟s state-owned enterprises commenced in the late 1970s; it was initially aimed at providing enterprises with more autonomy and incentives, with the ultimate objective put up as hammering out a modern enterprise system in the country. 105 the entire process of reforming state-owned enterprises has been described by some scholars as „from profit retention to a fixed-quota contract for profit or loss, and to the enterprise responsibility system, then to the 101 property rights law, arts 64-66. 102 see generally justin yifu lin, fang cai and zhou li, state-owned enterprise reform in china (hong kong, the chinese university press 2001) 20-28. 103 ibid 43. 104 ibid 49. see also generally decai yang, zhong guo jing ji shi xin lun (a new study on chinese economic history) (chinese, beijing, economic science press 2009) 446-452. 105 see generally yang (n 104) 452-456. see also jian sun, the comprehensive history of chinese economy (1949-2000) vol iii (chinese, beijing, chinese people‟s university press 2000) 2138. the denning law journal 37 shareholding system, and finally to the modern enterprise system experiment‟. 106 at the third plenary session of the 14 th central committee of the chinese communist party held in 1993, it was strongly pronounced that one of the salient features of china‟s socialist market economy system is „to have the market play[s] a fundamental role in the allocation of resources under the country‟s macro-control‟; 107 it was determined at that meeting to „establish [a] modern enterprise system with clear property rights, clear powers and responsibilities, separation of government from enterprises and scientific management measures that meets the requirements of the market economy‟. 108 for the purpose of setting up some more explicit and manageable targets of reforming state-owned enterprises, a consensus was reached at the fourth plenary session of the 15 th central committee of the chinese communist party in 1999, taking the form of an official document known as the decision of the central committee of the chinese communist party of china on major issues concerning the reform and development of state-owned enterprises. in accordance with this decision, encouragement would be given to the establishment and development of giant state-owned conglomerates in the form of „trans-regional, trans-industrial, trans-ownership and transnational large enterprise groups‟; 109 small-size state-owned enterprises would be prompted to develop themselves in some more innovative forms, eg by means of „regrouping, association, merger, leasing, contract-based management, shareholding, and sale‟. 110 this suggests that the chinese government tended to focus on controlling those most sizable state-owned enterprises; small and medium state-owned enterprises would gradually be de-nationalised and most likely become privatised at last. 106 lin et al (n 102) 70. 107 „modern enterprise system established in 1993‟ (people’s daily online, updated 30 october 2008) <http://www.chinadaily.com.cn/bizchina/2008-10/30/content_7169106.htm> accessed 10 june 2013. 108 ibid; see also generally xiangdong ning, guo you zi chan guan li yu gong si zhi li (state-owned assets management and corporate government) (chinese, beijing, enterprise management publishing house 2003) 423-427; jiagui chen, zhong guo qi ye de gai ge guan li yu fa zhan (chinese enterprises‟ reform, management and development) (chinese, beijing, chinese social science press 2009) 143-150; yang (n 104) 468-469. 109 „cpc central committee major decision issued‟ (people’s daily online, 27 september 1999) <http://english.people.com.cn/english/199909/27/enc_19990927001005_topnews.ht ml> accessed 10 june 2013. 110 ibid. protecting private property in china – whose property? 38 in light of some scholars‟ view, transforming state-owned enterprises could be approached from various angles, such as ensuring their independent corporate personality, allowing freedom of transacting the property rights of state-owned enterprises, absorbing outside capital as equity into state-owned enterprises from diversified sources (eg indigenous funds injected by nonpublic sectors, private individuals and organisations; foreign direct investment), out of which it has been particularly stressed that reforming property rights shall play a pivotal role. 111 it is against this background that china‟s company law was enacted in 1993 and had been revised several times thereafter. under this company law, one of the general types of company allowed to be set up in china is a company limited by shares. 112 such availability of incorporating a business vehicle to become a company limited by shares creates an opportunity for a state-owned enterprise to be transformed into a body corporate that could operate in another form of ownership, eg private ownership, multi-ownership, or foreign ownership. more significantly, apart from the company law, it has been made known to the public through the official source that china‟s state-owned enterprises in the future are to be subsumed into two major categories: (i) a public welfare type (this type of enterprise will be mainly engaged in the fields of petrochemicals, power grids, telecommunications services, supply of water and gas, waste water treatment, public transportation services, etc; it enjoys certain monopoly powers in the market due to its public welfare character.); and (ii) a multi-ownership type (this type of enterprise has no monopoly power and will normally be floated on stock exchanges with its share capital 111 see generally yining li, „guo you qi ye de chan quan gai ge wen ti‟ (reform of property rights in state-owned enterprises) in fureng dong, yining li and zhiguo han (eds), guo you qi ye: ni de lu zai he fang – wu shi wei jing ji xue jia lun guo you qi ye gai ge (what is the destiny of state-owned enterprises – 50 economists discussed about reforming state-owned enterprises) (chinese, beijing, economic science press,1997) 299-310; wei liu, „guo you zhi gai ge bi xu yu she hui chan quan gou zao zhuan bian rong wei yi ti‟ (reforming state ownership must be integrated into the transformation of the general structure of property rights in society) in dong, li and han ibid 311-323; zongkun tang, „guo you chan quan ying yun ti zhi gai ge ping xi‟ (comments on reforming the operational mechanism of state-owned property rights) in dong, li and han ibid 335-344; yangyan song „lun gong si fa ren zhi du he gong si fa ren suo you quan‟ (the framework for governing the legal personality of a company and a company‟s rights of ownership as a juristic person) in dong, li and han ibid 345-358; yang he, „guo you qi ye gai ge bi xu zou shen hua chan quan zhi du gai ge zhi lu‟ (reforming state-owned enterprises must proceed towards deepening the reform of the property rights system) in dong, li and han ibid 364-370. 112 company law, art 2. the denning law journal 39 open for public subscription and trading.) 113 obviously, a general trend in the overall scale of state-owned enterprises is to tail off in terms of quantity. however, there are discordant views opposing the theory that property right is the main cause to be blamed for bruising the development viability and potential of state-owned enterprises. 114 they retort that property right in the form of state ownership is not necessarily synonymous with low efficiency; a well-performing enterprise need not be subject to a precondition that it must to a certain extent be privately-owned. 115 while different opinions clash with one another, the contention has not stymied the go-ahead of overhauling state-owned enterprises, especially those seemingly poorly performing and moribund ones; nevertheless, in the course of transforming them, the drainage of state assets could have been startling in some places. 116 some insiders acquired state-owned enterprises at a low price under the guise of accomplishing a securitisation scheme to absorb private capital in order to buy out state assets or to have the state‟s hold on assets become diluted. 117 in such a way, they became the controllers of the enterprises, the original ownership of which had been artfully altered to the effect tallying with their desire through plotted transactions, the typical modus operandi known as carrying out mergers and acquisitions via mbos (management buyouts). 118 reforming state-owned enterprises, though under certain circumstances a euphemistic way of saying „privatisation‟, is not supposed to generate a consequence whose backlash may on certain scales not only have injured the integrity and healthiness of the economy but also tarnished the cardinal spirit of justice and the rule of law which in today‟s time in china particularly needs to be staunchly advocated. but in practice, many people are reluctant to pursue such kind of cases further, other than turning the page on the past by treating it as a price that must be paid for china‟s reform experiments. moreover, even in the event of 113 tianliang bai, „shi er wu guo you qi ye gai ge fang xiang chu ding guo qi jiang fen gong yi xing jing zheng xing‟ (the way of reforming state-owned enterprises during the 12 th five-year plan has preliminarily been decided: state-owned enterprises will be divided into two types a public welfare type and a business competition type) (chinese) (finance people, 14 december 2011) <http://finance.people.com.cn/gb/16595181.html> accessed 10 june 2013. 114 lin et al (n 102) 127. 115 ibid 128. 116 ibid 127. see also generally „the huge debate over privatization and mbos – can the drain on state-owned assets by justified?‟ (rieti, 15 september 2004) <http://www.rieti.go.jp/en/china/04091501.html> accessed 10 june 2013; yang (n 104) 484-490. 117 see generally yang (n 116) 488-489. 118 see generally ibid. protecting private property in china – whose property? 40 suspected cases, there are not ample mechanisms at present that could really help to effectively corroborate the suspicion. illicit private assets could thus have been hidden under the umbrella of „equal protection‟, patently shielded from facing the risk of denudation by the state. also discouragingly, there are limitations periods for crimes in china. under china‟s criminal law, an offender can be exempt from prosecution after a certain period expires; the limitations periods include „(1) five years, when the maximum punishment prescribed is fixed-term imprisonment of less than five years; (2) 10 years, when the maximum punishment prescribed is fixed-term imprisonment of not less than five years but less than 10 years; (3) 15 years, when the maximum punishment prescribed is fixed-term imprisonment of not less than 10 years; and (4) 20 years, when the maximum punishment prescribed is life imprisonment or death penalty…‟ 119 in other words, once such a specific period elapses, it could become fiendishly difficult, if not absolutely impossible, to have the wrongdoers brought to justice and their illegal gains disgorged. 6. concluding remarks china‟s legal and economic regimes, though architected and adjusted from time to time to square with the political tendencies prevailing in different historical epochs, have basically never missed the point of safeguarding the rights to legitimate private property. institutionalising the equal protection of private property in parallel to public assets serves the purpose of accommodating the need arising from today‟s situation. however, it may face both realistic and potential pitfalls. thus far, china has not been able to launch a unified, mandatory personal assets declaration system for officials and senior officers working in state-owned enterprises and publicly funded organisations. unless a sound mechanism is well established and unadulteratedly enforced so that unlawful private wealth can be forcibly stemmed and gradually but efficaciously eliminated, advocating the tenet of equal protection will entail little real significance in regard of justifiably providing protection to private assets on the basis of the rule of law. on the other hand, reforming china‟s ownership system by unbinding the private economy ought not to be simply construed and engineered as a u-turn against the merits of socialism. protecting private property is by no means to demote the status of public ownership system which is still a central pillar in 119 criminal law, art 87. the quoted parts are extracted from the english translation of the criminal law of the people‟s republic of china at <http://www.npc.gov.cn/englishnpc/law/2007-12/13/content_1384075.htm> accessed 10 june 2013. the denning law journal 41 china‟s economic and political foundations at present. an umbilical cord is inherently tying protecting private property to sticking to justice and egalitarianism, the latter being a key basis on which china‟s relevant legal and economic institutions have been developed into the current shape from the past. building up a socialist nation with chinese characteristics is the road of development that china chooses to follow; the next is to see how „common prosperity‟ could be achieved at the earliest time congruent with deng xiaoping‟s theory. 120 in that sense, perhaps only when a golden ratio between ensuring the inviolability of private property and securing the realisation of justice and egalitarianism which the socialist core value venerates is located, would the nutrients in the soil where protecting private property is rooted come close to the level of sufficiency as faithfully envisaged. 120 see xiaoping deng, „shan yu li yong ji hui jie jue fa zhan wen ti‟ (try to utilise opportunities to address the problems in the development), in deng xiaoping wen xuan (the selected works of deng xiaoping, vol 3) (chinese, beijing, people‟s press 1993) 364. for the purposes of right to self-determination, how does one define people in context of kashmir 159 the denning law journal 2013 vol 25 pp 159 180 lord denning and margaret thatcher, law and society simon lee  1. heroes or villains? ―lord denning is the best-known and best-loved judge in the whole of our history.‖ 1 that was the opening of lord bingham‘s address at the service of thanksgiving for the life of lord denning, the former master of the rolls, in westminster abbey in 1999. lord bingham was well-placed to judge. he himself held the offices of master of the rolls, lord chief justice and senior law lord. he is an accomplished historian. he ascribed lord denning‘s renown and reputation to his unique warmth, his popular touch and his longevity. tom denning was born in the victorian era, in 1899, and lived a few weeks beyond his 100 th birthday in 1999. he only retired at the age of 82 and then reluctantly. when baroness thatcher died in 2013, david cameron as prime minister opened the tributes in the house of commons: ―in the long history of this parliament, margaret thatcher was our first – and so far only – woman prime minister. she won three elections in a row, serving this country for a longer continuous period than any prime minister for more than one hundred and fifty years … as tony blair rightly said this week, margaret thatcher was one of the very few leaders who changed not only the political landscape of their own country, but the rest of the world too. above all she believed to the core of her being that britain stood for something in the world – for democracy, for the rule of law, for right over might. today, in different corners of the world, there are millions of people * emeritus professor of jurisprudence, queen‘s university belfast. this article derives from a public lecture, ‗lord denning, margaret thatcher & the rule of law‘, given at the university of buckingham on 16 july 2013. i am grateful to professor susan edwards for the invitation, to those who attended for entering into the spirit of the occasion and for their comments afterwards and to james lee for comments on drafts. responsibility for the content is mine alone. 1 t bingham, the business of judging (oup 2000) 409. lord denning & margaret thatcher, law & society 160 who know that they owe their freedom, in part, to margaret thatcher.‖ 2 on the other hand, there are less flattering ways of looking at the legacies of lord denning and baroness thatcher. 3 the independent newspaper in ireland had as the headline to its obituary of lord denning, ―‗appalling vista‘ judge dies at 100‖, 4 while a sense of the hold of celebrities in modern forms of media is given by the comedian russell brand‘s verdict on the death of margaret thatcher in the huffington post: ―if you behave like there‘s no such thing as society, in the end there isn‘t … all of us that grew up under thatcher were taught that it is good to be selfish, that other people‘s pain is not your problem, that pain is in fact a weakness and suffering is deserved and shameful.‖ 5 examples could be multiplied, from the popular press and popular comedians through to professors john griffith 6 and ronald dworkin 7 as academic critics. part of the reason for this article is the sense that the headlines and the comedians are carrying more sway than senior judges or politicians when it comes to interpretations of the views and records of lord denning and baroness thatcher. this matters because how are students and the wider community to balance these competing interpretations unless universities encourage an interest in the lives of public figures and in fairness when it comes to judging them? students from diverse backgrounds might also find something of their own challenges and opportunities in the stories of lord denning and baroness thatcher. both rose to high office from humble beginnings above family shops. neither went to a fee-paying school. both became barristers after first 2 http://www.theguardian.com/politics/2013/apr/10/margaret-thatcher-tributes-davidcameron-speech 3 i am conscious that the title of the lecture and now the article gives tom denning his title of lord but renders baroness thatcher as margaret. i have chosen the title by which lord denning was known during his time as master of the rolls. the equivalent for margaret thatcher as prime minister would have been mrs thatcher but she later became a baroness. since she was not lady thatcher or baroness thatcher when in office, i have chosen ‗margaret thatcher‘. no disrespect is intended. where it seems more appropriate to refer to them in different ways, eg by surnames alone or as tom denning or as baroness thatcher, i have done so. 4 independent http://www.independent.ie/irish-news/appalling-vista-judge-dies-at100-26155585.html 5 huffington post http://www.huffingtonpost.com/russell-brand/margaret-thatcherour-unm_b_3046390.html 6 j griffith, the politics of the judiciary, http://www.lrb.co.uk/v12/n20/johngriffith/that-man-griffith 7 r dworkin, http://www.nybooks.com/articles/archives/1988/oct/27/the-new-england /?pagination=false http://www.theguardian.com/politics/2013/apr/10/margaret-thatcher-tributes-david-cameron-speech http://www.theguardian.com/politics/2013/apr/10/margaret-thatcher-tributes-david-cameron-speech http://www.independent.ie/irish-news/appalling-vista-judge-dies-at-100-26155585.html http://www.independent.ie/irish-news/appalling-vista-judge-dies-at-100-26155585.html http://www.huffingtonpost.com/russell-brand/margaret-thatcher-our-unm_b_3046390.html http://www.huffingtonpost.com/russell-brand/margaret-thatcher-our-unm_b_3046390.html http://www.lrb.co.uk/v12/n20/john-griffith/that-man-griffith http://www.lrb.co.uk/v12/n20/john-griffith/that-man-griffith http://www.nybooks.com/articles/archives/1988/oct/27/the-new-england/?pagination=false http://www.nybooks.com/articles/archives/1988/oct/27/the-new-england/?pagination=false the denning law journal 161 studying a different subject at university, mathematics and chemistry respectively. neither found it easy at first to make their way at the bar. today‘s students of law and politics could benefit from a balanced understanding of the lives and beliefs of such a leading judge and such a leading politician. in returning to my attempt twenty-five years ago in judging judges 8 to counter the simplistic idea that members of the establishment get there through privilege and decide everything on the basis of class bias, i would like now to counter more specifically the notion that we can reduce the legacies of leading figures in our law and politics to a phrase or two, plucked out of context. the phrases i have in mind are lord denning‘s appalling reference to ―appalling vista‖ in a miscarriage of justice case and margaret thatcher‘s infamous declaration that ―there is no such thing as society‖. there is much more to lord denning and baroness thatcher than these comments. this is not to excuse the mistakes of lord denning or baroness thatcher but to insist that one view of one aspect of their careers is not a rounded picture of long lives of public service. the same applies to judges and politicians of other eras and applies across the spectrum of judicial styles or party political affiliations. for example, the reputation of tony blair, another barrister who also won three general elections, is nowadays often dismissed on the basis of the iraq war. when i wrote about him in uneasy ethics, 9 published in 2003 but drafted in 2002, before we were aware of the issues around dossiers on weapons of mass destruction, it was possible to be heard if offering an analysis of his ‗third way‘. while critical of it, my thesis was that it appealed to him in some respects as an application in politics of the method adopted in his tutorials as a law student. there are pluses and minuses to that in tutorials, in law and in politics but ten years on, the sound of any balanced analysis is in danger of being drowned out by the clamour in the public square against mr blair‘s support for the ‗war on terror‘. on a future occasion, i intend to analyse the strengths and weaknesses of lord denning‘s and margaret thatcher‘s interpretations of the rule of law, with particular reference to national security and with some attention to insights of the philosopher anthony quinton to our assessment of such figures. lord quinton, ennobled on the recommendation of margaret thatcher has pointed out some confusion and overlap in discussions of character and personality: ―castlereagh, perhaps, had character without personality; 8 s lee, judging judges (faber 1988). i am conscious that in writing about other academics in such books and in book reviews of my own, before, during and after my time as book review editor of the law quarterly review, i could be accused of similar faults in selective citation of opposing views, as indeed could my critics. 9 s lee, uneasy ethics (first published pimlico 2003; random house ebook 2011). lord denning & margaret thatcher, law & society 162 alcibiades personality without character.‖ 10 quinton has also raised important questions about intellectual biography and autobiography. lord denning, towards the end of his career, wrote a series of books telling his own story in his own inimitable way. we are more accustomed to autobiography from former prime ministers but we have come to expect such volumes to be dull and self-serving. since lord denning was a past-master of narrative, it is not surprising that his spate of books was more engaging. of course, any autobiography is likely to be self-serving but quinton argues there can be a special value in an intellectual autobiography as the ―actual process of thought … is known only to the thinker himself, so far as his memory is reliable‖. 11 what quinton is looking for are ―particular moments of enlightenment, the detailed procedure of working at a problem, the actual experienced effects of influential people and books‖. 12 margaret thatcher not only wrote her own memoirs 13 and is now the subject of various biographies 14 but she was interviewed time and again, especially as the uk‘s first female prime minister and reaching back to the days when it was a novelty for the media that a woman was standing as a parliamentary candidate. a consistent narrative emerges from exploring the archive of these transcripts and all her speeches held by her foundation. 15 this material tells a story about society and about what margaret thatcher believed had influenced the development of her thinking. in law and in other disciplines, there is much scholarship around what it is to ‗interpret‘ the past, about what it means to claim that something is ‗true‘ or ‗authentic‘. historians of education, for example, have reflected on hermeneutics and the reliability of memory in evaluating the methodology of a major oral history project interviewing hundreds of teachers. 16 so i am not claiming that lord denning and baroness thatcher should be given the last word on their own achievements. my aim is instead to find a way of presenting more than the nine of their words which are in danger of blocking an appreciation of their lifetimes of experience of law, politics and society. 10 a quinton, thoughts and thinkers (duckworth 1982) 21. 11 ibid, 35. 12 ibid, 35-6. 13 m thatcher, the path to power (harpercollins 1995); the downing street years (harpercollins 1993). 14 the authorised biography, part one, is c moore, margaret thatcher, from grantham to the falklands (allen lane 2013). 15 the margaret thatcher foundation http://www.margaretthatcher.org/ 16 p gardner, hermeneutics, history and memory (routledge 2010); p gardner, ‗oral history in education: teacher‘s memory and teachers‘ history‘ (2003) 32 history of education 175; and p cunningham and p gardner, becoming teachers; texts and testimonies: 1907-1950 (woburn 2004). http://www.margaretthatcher.org/ the denning law journal 163 they are especially intriguing leaders because they are judged by some to have been conservative and by others to have been radical. for lord denning, then, the aim of this article is to identify, especially but not exclusively for the benefit of law students born after he had retired, why a rounded view of his life and of his progress in the law is of some significance. for baroness thatcher, the aim is to identify, especially but not exclusively for the benefit of students of politics born after she had resigned as prime minister, exactly what she said and meant about ‗society‘. 2. lord denning: the moral of his story ―it was bluebell time in kent.‖ 17 many a student might vote for that sentence from hinz v berry as the most memorable of the many distinctive openings in judgments by lord denning, during his twenty year tenure as master of the rolls. as i was born in kent and as the bus i took to school each day came from bluebell hill, hinz v berry is in my personal top two, the other being, as a village cricketer, miller v jackson. 18 even when a phrase is repeated so often, it is possible to be mistaken about exactly where it comes in a judgment or why it was there at all. ―it was bluebell time in kent‖ was not, in fact, the very first sentence of hinz v berry. that was simply, ―it happened on 19 april, 1964.‖ it is the second sentence which told us that it was bluebell time in kent. of course, it hardly matters whether this was the first or second sentence but if anyone thinks they have remembered it as if it were the first, then that in itself is a tiny example of the value of revisiting our recollections and understanding of the content and context of any comment in law or politics. there are other ways of learning how easy it is to forget. in refreshing my understanding of lord denning‘s successors as master of the rolls, from lord donaldson, appointed by margaret thatcher‘s government, through to the current incumbent, lord dyson, it was only when i saw towards the end of what i was increasingly deeming to be an especially fair-minded obituary of lord donaldson that the author had been in court for a particular case, where i knew i too had been watching the drama unfold, that it dawned on me that i had written that obituary. 19 once every quarter of a century or so, it is good to take stock, not merely to wallow in nostalgia at the lighter-hearted end, or beginning, of judgments, 17 hinz v berry [1970] 2 qb 40. 18 miller v jackson [1977] qb 966: ―in summertime, village cricket is the delight of everyone.‖ 19 simon lee, the guardian, 3 september 2005, http://www.guardian.co.uk/news/2005/sep/03/guardianobituaries.obituaries. http://www.guardian.co.uk/news/2005/sep/03/guardianobituaries.obituaries lord denning & margaret thatcher, law & society 164 but to remind ourselves of the origins of a senior judge or politician and of the influences on their thoughts and actions. the ‗nightmare‘ 20 explanation of judicial or political decision-making is that people in power decide in a selfserving way, often because of their class or gender or race or education or a combination of such elements in their background. this is not much of a theory of adjudication, it seems to me, and it does not sit well with the theory of advocacy that often draws students into law, the idea (whether seen in films or television or on stage or read about in fiction or even sometimes in fact) or the ‗noble dream‘ 21 that the student will secure justice through the quality of their argument. for, if that is so, judicial bias could not be decisive. yet judges are accused of acting like politicians. one of the reasons why i have decided to consider together a leading judge and a prime minister is because i have come to think that there is a danger in the apartheid or voluntary segregation whereby law students and researchers write about judges while politics students and researchers write about elected representatives. in a modern democracy, it is helpful to compare and contrast the two elements, to see if they complement and challenge one another as is appropriate, which will not always be the same in different eras. this overlap between law and politics has been a long-standing interest of mine. along the way, i have by no means always agreed with lord denning or baroness thatcher. the very first article i wrote on law was critical of lord denning‘s inconsistency, as i saw it, in his approach to the mandate of the central and local governments in the tameside and glc cases of the mid-1970s and early 1980s. 22 i quoted one letter-writer to a national newspaper (he wrote at least two that were published) who suggested renaming london as denningrad if ken livingstone could not reduce fares on london transport in accordance with the labour manifesto. his other way of putting it was to ask if we were to have the single name denning on our voting slips. 23 many of those who resented lord denning in such cases were pleased when he had earlier championed the deserted wife‘s equity in a series of cases which upheld equal opportunity in the late 1950s and early 1960s, when parliament had failed to act. 24 if lord denning decided against labour just 20 judging judges (n 8), ch 4, 33. 21 ibid ch 3. 22 s lee, ‗mandate and manifesto‘ (1983-4) 33 king‘s counsel 39. 23 ibid at 40, quoting george stern‘s letters to the guardian and the times published on 13 november 1981. 24 see eg a lecture by lord neuberger, a later master of the rolls, for a pithy summary of lord denning‘s attempt to ‗sire‘ or be ‗midwife‘ to the deserted wife‘s equity, an attractive baby that was ‗decisively murdered‘ on appeal by the house of lords but which was brought back to life by statute: http://www.judiciary.gov.uk/resources/jco/documents/speeches/mr-speech-hongkong-lecture-12102010.pdf http://www.judiciary.gov.uk/resources/jco/documents/speeches/mr-speech-hong-kong-lecture-12102010.pdf http://www.judiciary.gov.uk/resources/jco/documents/speeches/mr-speech-hong-kong-lecture-12102010.pdf the denning law journal 165 because he was conservative, did that mean he would decide against the woman in cases of a broken marriage or other relationship because he was a man? that was clearly not the case. nor did lord denning accept the premise, that he was a conservative. when asked by the barrister and writer, john mortimer qc, in an interview for the sunday times, reprinted in his book, in character, 25 if he was a conservative with a small ‗c‘ or a liberal with a small ‗l‘, lord denning could not have been clearer, having already declared that he had never voted for a political party: ―oh, i‘m not conservative. people have said the court of appeal‘s very conservative. they forget that when donaldson put the three dockers in prison in the industrial court, we let them out. well, we‘d been told there was the danger of a general strike. most lawyers are conservative. that‘s what‘s wrong with them. i would have to say that i‘m on the liberal, or the progressive side. i believe in equal opportunity for everybody, and as an old grammar-school boy, i believe in independent schools. i believe in an elite of excellence, certainly not in an elite of the upper class. i would be against that.‖ 26 the arrogance of any simplistic view that judges are conservative or conservative is hardly likely to be undermined by a clear statement from the judge that he was not conservative, let alone conservative, nor by his repeated assurance that he had never voted for any political party in any election. critics might see a system in which the judges are against them and conclude that is because of the judges‘ politics, not theirs, and not because parliament had passed a statute addressing the matter. they might prefer to believe it was because of the judges‘ privileged backgrounds. i have written about this as an absurd ‗tory benn‘ thesis, that because judges tend to be old, white, male, public school and oxbridge (just like the left-wing politician, tony benn), they automatically think in a conservative way (just unlike tony benn). 27 the conclusion does not follow but in the case of tom denning the premise is wrong and, in a different meaning of the word, premises, this is a point which links to the life story also of margaret thatcher. for, as noted above, tom denning did not come from a privileged background. he was born over his father‘s draper‘s shop. 28 he went to a state school and went to war before he qualified at the bar. it is evident from this that i am not denying that our backgrounds influence us to some degree. on the contrary, that is one reason why biographies can be of value. but a single 25 j mortimer, in character (penguin 1983) 9. 26 ibid, 13. 27 judging judges (n 8) 33. 28 t denning, the family story (hamlyn 1982) 16-18. lord denning & margaret thatcher, law & society 166 factor, such as our gender or school or class, is not in my opinion the whole or even the primary explanation of how we decide everything in later life, especially if we are in a constitutional role as judges which requires us to listen to the arguments, to the views of others, and to articulate our reasons, to have them subjected to criticism in the courts, in parliament and in the court of popular opinion, including through trial by media. if we think that we would always decide for the union or for the woman or for the big business or the little shopkeeper, even that does not show it is what judges or politicians do. it could be that it shows we would not be the best of judges or politicians. far from privilege explaining how lord denning decided as a judge, my contention is that it was his lack of privilege and the consequent struggle he had to become a lawyer which influenced positively his generosity of spirit to students, new lawyers and good causes as well as his renowned courtesy to almost all litigants. i do not deny that he fell short of his own standards in the miscarriage of justice cases. nor do i excuse that. his experiences in earlier conflicts might have some bearing on his inability to imagine that what he characterised as an ―appalling vista‖ had truly happened but others of his generation, including retired judges, 29 were able to rise above that and campaign for the righting of wrongs in those miscarriage of justice cases. so my point is that we can learn from his experiences in earlier life, notwithstanding the disappointing comments in and out of court which led to his retirement. in particular, today‘s students might find some encouragement from an experience which they share with lord denning but which was a burden from which my generation was spared. students in an era of high fees which they have to pay or repay are in that respect closer to the position of a tom denning ninety or more years ago than to their own teachers. every penny counted for tom denning to be able to survive as a poor scholar at university. he was always grateful for scholarships and advice and he later helped good causes in turn. he was especially thankful that the president of his oxford college, magdalen, sir herbert warren, took a personal interest in finding the means for him to persist in his studies and to find his way afterwards. 30 denning was well aware that warren was widely regarded as a snob. even a fellow magdalen student, the prince of wales, later known as edward vii and then as the duke of windsor, himself no slouch when it came to being snobbish, saw some absurdities in warren. 31 29 lords devlin and scarman were prominent in the campaigns to right the wrongs of miscarriages of justice. 30 ibid 34. 31 duke of windsor, a king’s story (cassell 195) 94: ―it was generally suspected that he was obsessed with the idea of filling magdalen with titled undergraduates; hence, whenever he beamed upon me, i was never quite certain whether it was with a teacher‘s benevolence or from a collector‘s secret fascination with a coveted trophy.‖ the denning law journal 167 with this reputation, warren might have been expected to look down on a state school educated student like tom denning who retained the burr of his hampshire accent. yet that was not denning‘s experience of warren who helped him time and again. when denning returned to oxford after the first world war and after his first degree in maths, warren steered him towards studying for an accelerated second degree, this time in law, and went to london to seek a further scholarship for denning: ―he was decried by some as being a 'snob' ... but i would refute this disparagement. the president was very good to me. he helped me at every turn.‖ 32 tom denning was given a viva days after the law of property act was passed in 1922 (as a precursor to the wider reforms of 1925) and impressed the examiner professor cheshire with his knowledge of the latest developments. 33 when cheshire‘s son, leonard, having won the victoria cross for outstanding bravery in the second world war as a dambuster pilot and having witnessed the dropping of the atomic bombs, started homes for those with severe disabilities, the other trustees were his father and tom denning, who chaired the trust. 34 tom denning also needed help to survive at the bar: ―i too was briefless for a time. i used to devil for the busy juniors – in our chambers and outside. that is, i used to look up cases, to draft pleadings or opinions – all without payment. save that mr d n pritt did give me a most welcome cheque sometimes. he had one of the biggest commercial practices of the day: and also in the privy council. he helped me much. when he was a silk he gave me my ‗red bag‘. a new barrister has only a blue bag. if he does well in a particular case, the silk may give him a red bag.‖ 35 lord denning does not point out anything else about this character and the casual reader will just absorb that he was helped by a successful commercial barrister. indeed, i am not aware of anybody else pursuing a study of mr d n pritt in this context. there is a story though to this patron of the young tom denning which illustrates the huge range of political opinion at the bar between the wars and the way in which such differences did not preclude generosity to one another. denis nowell pritt became a qc and, more briefly, 32 denning (n 28) 34. 33 ibid, 38. 34 a boyle, no passing glory (collins 1955) 362; denning (n 28) 241. 35 denning, ibid 94. lord denning & margaret thatcher, law & society 168 a labour mp. he was a prolific writer of tracts, especially in support of the ussr. 36 d n pritt campaigned for civil liberties at home but has been accused by the left-wing journalist and author nick cohen in what’s left? of being ―on the wrong side of every great question of the mid-twentieth century‖. 37 pritt could be described as a ―fellow-traveller‖, 38 as in all likelihood the most pro-soviet barrister in our history. in 1954, on the eve of the 75 th anniversary of stalin‘s birth and in the year after his death, pritt was one of nine recipients of the annual international stalin peace prize, later renamed in honour of lenin. 39 lord denning remembers him, however, simply as a generous senior colleague who made his own career possible. he was far more privileged than lord denning, far richer and far more left-wing. he must have seen young tom denning‘s talent. in paying for his help, he enabled the poor young barrister to survive at the bar. a reader of lord denning‘s book about his own family will appreciate that when it comes to understanding lord denning‘s approach to questions of law, order and national security, it is worthwhile knowing what lord denning did in, and how he was affected by, the wars. in the first world war, two of his brothers were killed. a sister was not allowed to fight, one brother was too young and so was tom initially. he was then refused on medical grounds but characteristically appealed and eventually was able to go to the front, leaving his studies behind to fight for victory. he had enlisted with the royal engineers and worked with welsh miners on construction at the coal-face, so to speak, of the war. like many others, he was stricken with influenza towards the end of the war but lived to be a part of the trio of surviving brothers who became an admiral, a general and a judge. 40 a certain robust approach to national security is likely for someone with this experience of the first world war. in the general strike in the 1920s, tom denning acted as a special constable. 41 in the second world war, he was too old to enlist in the military but acted as the lawyer in the north-east dealing with such issues as detention without trial of people suspected of being sympathetic to the enemy as legal adviser to the regional commissioner. ―we detained people, without trial, on suspicion that they were a danger.‖ 42 36 see eg n pritt, the zinoviev trial (1936); light on moscow (1939); the ussr our ally (1941); the truth about the ussr (1951); russia is for peace (1951). 37 n cohen, what’s left? (harper 2007). 38 d caute, fellow-travellers: the intellectual friends of communism (yale 1988) 167. 39 cohen (n 39) but relevant passage reproduced at http://nickcohen.net/2009/03/02/eric-hobsbawm-and-the-hitler-stalin-pact/ 40 denning (n 28) 106 and 123. 41 ibid, 79. 42 ibid, 130. http://nickcohen.net/2009/03/02/eric-hobsbawm-and-the-hitler-stalin-pact/ the denning law journal 169 he referred in the third person in his famous hamlyn lectures on freedom under the law 43 in 1947 to the case of a vicar in leeds suspected of being a nazi-sympathiser. lord denning had no hesitation in interning him without any evidence. this kind of detention without trial was allowed in a different case during the war by the house of lords in liversidge v anderson 44 but denning later praised the famous dissent of lord atkin. 45 counsel for liversidge was tom denning‘s lifeline as a young barrister, d n pritt kc. nor in peacetime did tom denning find it difficult as a judge to sentence a convicted murderer to the death penalty. as he told john mortimer, ―didn‘t worry me in the least. i‘ve done it lots of times.‖ 46 lord denning was too robust, too rash and spoke too loosely in 1980 when the birmingham six were suing west midlands police for beatings in police custody. this was seen by lord denning as an attempt to have a rehearing of their case through a side door. there already had been an appeal. this attempt to show that they were the victims of a gross miscarriage of justice, as indeed they were, was struck out by court of appeal. if they had won it would have revealed perjury and widespread malpractice in their treatment in custody by the police. ―that, said lord denning, is such an appalling vista that every sensible person in the land would say: it cannot be right that these actions can go any further‖. 47 it was indeed an ‗appalling vista‘ but it was true and what was needed was to give every chance to show it was true and to take steps both to minimise the chances of a repetition and to maximise the opportunities for review where there were thought to be other miscarriages of justice. nothing in this article is meant to excuse this error of judgment by lord denning. my point is rather that it does not tell the whole story of our greatest judge and that we must strive for a balanced view. at the end of the decade in which he said this, a leading nationalist mp, seamus mallon, of the sdlp was asking a question of margaret thatcher in the house of commons on 16 march 1989. raising the issue of the obstruction of the stalker inquiry, he prayed in aid lord denning: ―does the prime minister agree with the maxim enunciated by lord denning: ‗be you never so high, the law is above you‘? if she does, 43 see ibid, 130. 44 [1942] ac 206. 45 at 244, praised in denning (n 28) 130 as ―after my own heart‖. 46 ibid. 47 mcilkenny v chief constable of west midlands [1980] 1 qb 283. this is not the only reason why lord denning was under pressure to retire. he wrote and spoke out of turn on a related and an unrelated matter (impugning black jurors, which i noted in my chapter on lord denning in judging judges (n 8) but it is the ―appalling vista‖ quote which has been used so often in the subsequent twenty-five years). lord denning & margaret thatcher, law & society 170 how does she justify the squalid and murky attempts to hide the truth about the stalker affair? has she any appreciation whatever of the damage that has been done to confidence in the police, in the process of justice and, above all, in a government who have shown how low standards can apply in high places?‖ 48 leaving to one side the detail of that matter, it is striking that seamus mallon finds it natural and telling to refer to lord denning (who was quoting dr thomas fuller from the eighteenth century). 49 it would be good, almost a quarter of a century later, to return to that practice of remembering lord denning as someone who captured the imagination by the way he framed this insistence on the principle of the rule of law, rather than to write him out of our legal history for falling short of that standard in the context of a miscarriage of justice. there is a further tragic irony in lord denning‘s failure to allow for the possibility that the facts in a miscarriage of justice might not be as the police had presented them to the courts. for it is his ability to narrate the facts of a case in such a compelling fashion which was the hallmark of the openings of his judgments. the bluebells in kent illustrate lord denning‘s remarkable facility for distilling the facts of a case and putting in some colour in what was often seen as a dull exercise. some students think the reason why this beautiful bluebell sentence is famous is for its irrelevance to a tragic case. yet it is more the contrast and the evocative way in which lord denning sets the scene and grabs attention that has made the bluebells and the judge so wellknown. the bluebells were relevant to the story. mrs hinz was pregnant with her fifth child and was foster-mother to four further children. on the way home from an outing, she took her three year-old child, stephanie, across the road to pick bluebells while her husband and the other seven children were getting ready in a lay-by to have a picnic tea. another motorist had a burst tyre and ploughed into the hinz family, injuring several children and killing mr hinz. the question for the court of appeal was whether she was entitled to the £4,000 damages awarded by a judge for her nervous shock at witnessing the death of her husband. she was. 50 as lord bingham said towards the end of his great address in westminster abbey, lord denning ―saw the law not as a code of rules, but as a collection of human stories, each 48 http://www.margaretthatcher.org/document/107604. 49 lord bingham traces the quotation in the rule of law (penguin 2010) in n 8 to ch 1 at 175 although it is sometimes rendered as ―ever‖ rather than ―never‖. 50 in judging judges (n 8) ch 3, 20-32, i discuss the later nervous shock case of mcloughlin v o’brian [1983] 1 ac 410, which was chosen by r dworkin to illustrate his theory of adjudication in law’s empire (belknap press 1986). http://www.margaretthatcher.org/document/107604 the denning law journal 171 with a moral …‖. 51 my own interest in leading judges is stimulated by not seeing them as a collection of rulings, from which we take the worst as if that sums them up, but as characters and personalities in each chapter of whose lives there might be a moral worth pondering. 3. margaret thatcher: what she said and meant about society that sentence by lord bingham continues with a reference to society and then to social harmony, that lord denning saw the law ―… not as a fetter, but as a source of freedom; not as an unwelcome but inescapable response to the ills of society, but as a means of providing that justice upon which good government and social harmony fundamentally depend.‖ 52 those who think that margaret thatcher did not believe in society will not know how she would be able to make sense of such an insight. my view is that she would have been able to have endorsed it and that she shared much of lord denning‘s and lord bingham‘s thinking on the importance of the rule of law in society. in the wake of baroness thatcher‘s death this year, there have been many accounts of her life so there is little need to rehearse the story in her case, except to mention how the law came into her life. it has already been noted here that she came from shop-keeping stock, in her case a grocer‘s cornershop, and that she studied chemistry at oxford. margaret thatcher took her first bar exams in may 1952, gave birth to twins in august 1953, passed bar finals on 1 december 1953, was called to the bar in february 1954 in alphabetical order between two people who went on to become mps, dick taverne and jeremy thorpe. 53 she was a pupil with fred (later lord justice) lawton in whose chambers were other rising stars. airey neave, war hero and escaper from colditz, later a conservative mp and her campaign manager for the leadership, was blown up by the ira in the precincts of westminster ahead of the 1979 general election which margaret thatcher went on to win. robin day was later a particularly acute questioner of her and other politicians as a television interviewer. although margaret thatcher did not complain about it, there seems to have been bias against a mother at the bar in those days, so it was not an easy time but she later said that she valued learning how to draft, which helped her as a minister dealing with civil servants, and learning about the importance of the rule of law, which helped her evolving political philosophy. 51 bingham (n 49) 412. 52 ibid 412-3. 53 c moore (n 14)125-6. lord denning & margaret thatcher, law & society 172 what was margaret thatcher doing in april 1964 when the facts occurred which gave rise to hinz v berry? politicians were preparing for the 1964 general election. when she died earlier this year, a jewish magazine in her constituency asked for memories. in the early summer of 1964, one correspondent recalled, 54 he and his wife went to israel for a few days. he was the leader of the liberal party on finchley council. there was only one person in the swimming pool at their hotel in eilat. she recognised them, swam towards them and engaged him in conversation from the pool. that was, of course, their mp, margaret thatcher. so she was not preparing too hard for the election, then. this story emerged too late for charles moore‘s new biography 55 but he too likes the game of spotting what everyday activities margaret thatcher was up to on famous dates, such as when john f kennedy was assassinated the previous year. she was at a rotary club event. for much of that year, 1963, lord denning was famously involved in questioning witnesses and writing his report into the profumo affair. 56 even before illness affected her memory, margaret thatcher was not always accurate in dating her own recollections. she told geoffrey smith, 57 for example, that she distinctly remembered in 1959 the case of rookes v barnard, 58 but it was in fact in 1964. still, her reason for mentioning it is significant. she was appalled that the government had not protected the pilot who did not want to be in a closed shop, required by his employer to join a trade union. she thought that was an outrage. what was margaret thatcher doing when lord denning was giving his judgment in the case of hinz v berry? he was speaking, immediately on conclusion of the argument, in january 1970. it was not lord denning‘s fault that it took almost six years for mrs hinz to have her case resolved. there are still concerns today about the length of time, on the one hand, that such cases can take, and the sense, on the other, that there is too much of a compensation culture. at the end of january 1970, margaret thatcher and the rest of the shadow cabinet were in the selsdon park hotel laying the basis for the conservative manifesto with which they won the 1970 general election. 59 politicians spend a lot of time preparing for elections. it might seem that their task is so removed from the lot of judges that it is unprofitable to compare 54 alan cohen, the norrice leader, june/july 2013 p 8. http://www.hgss.org.uk/home/norrice%20leader/20130607.pdf 55 c moore (n 14). 56 denning, the denning report: the profumo affair (pimlico 1992); this is a surprising re-issue of the official report with a new introduction by lord denning. 57 http://www.margaretthatcher.org/document/109324. 58 rookes v barnard [1964] ac 1129. 59 http://www.margaretthatcher.org/document/109512 & transcripts of subsequent sessions. http://www.hgss.org.uk/home/norrice%20leader/20130607.pdf http://www.margaretthatcher.org/document/109324 http://www.margaretthatcher.org/document/109512 the denning law journal 173 them. on the other hand, there is some overlap in their roles and in their talents. both professions at their highest levels require, or in their era required, wordsmiths or at least the ability to sift and draw on the arguments of others to articulate the reasoning behind their decisions. this means that both a politician of baroness thatcher‘s calibre and a judge of lord denning‘s leave a legacy of millions of words. yet even though lord denning was our best known judge and margaret thatcher perhaps our best known politician of the twentieth century, how well do we really know them and how many of those words do we allow them in our estimation of their achievements? if we are partial, unfair or mistaken in our judgments of the best known figures in law and politics, how wrong might we be in our assessment of others? 60 in some spheres, a lifetime is reduced to a single image or moment. in others, it can be a single phrase. margaret thatcher is associated with seven words: ―there is no such thing as society‖. lord denning is associated with two words: ―appalling vista‖. yet each was responsible for some of the most evocative statements of our politics and our law in the twentieth century. why do their critics think it is fair to focus on these particular words? the answer they might give is that these comments reflect the public figures‘ true views, that they reveal something significant about the characters and assumptions of these privileged people. it could be, however, that the critics are seizing on an unrepresentative sample for their own purposes. the common law tradition encourages us instead to anticipate the best possible interpretation of our opponents‘ positions before countering them. the structure of legal argument in such systems is intended to ensure that decision-makers have been exposed to the best arguments on each side of a two party dispute. more recently, we have taken to third party interventions when there is a public interest beyond the main litigants. in contrast, almost anything goes in our media and our politics, although there is an etiquette policed by the speaker in the house of commons. a close cousin of the scholastic approach to scholarship is a catholic catechism‘s injunction to strive to avoid the non-identical twin sins of calumny and detraction. calumny 61 is when you tell an untruth about someone 60 see eg s lee and p stanford, believing bishops (faber 1990) through to uneasy ethics (n 9) & s lee, the z to a of oxford sport (audiogo 2012). a work in progress with dr richard turnbull, whose shaftesbury: the great reformer (lion 2010) is a good illustration of this, explores the religious inspiration of nineteenth and twentieth century campaigners for social reform and founders of charities. 61 catechism of the catholic church (veritas, 1994) #2477: calumny is where someone ―by remarks contrary to the truth, harms the reputation of others and gives occasions for false judgments concerning them‖. lord denning & margaret thatcher, law & society 174 which undermines their reputation. detraction 62 is when you tell the truth about someone which undermines their reputation and when there was no need to do so. in an era of widespread vitriol on-line, the practice of calumny and detraction might seem to be beyond redemption, even if the sinners are not. but trying to avoid calumny and detraction is relevant to judicial and political biography. in what follows, i seek to illustrate how the fact that margaret thatcher said there is no such thing as society does not mean it is fair for her detractors to pray it in aid as a summary of her position. you might imagine that it was david cameron, the current prime minister, who told a conservative party conference that, ―in its first seventeen months this government have laid the foundations for recovery‖ 63 or you might be unsure whether he is joking or has picked up the wrong speech. if he were to say of the deputy prime minister that he is ―very fortunate in having a marvellous deputy who is wonderful in all places at all times in all things‖, 64 you would know that someone had given him margaret thatcher‘s speech from the 1980 conference. in that speech, she said a great deal about ‗society‘ even though she was quoted, seven years later, as declaring that society does not exist. the first point she made about society at the 1980 conference was that, ―inflation destroys nations and societies as surely as invading armies do.‖ 65 next, margaret thatcher linked the economy and society, while distancing both from a big state: ―without a healthy economy we cannot have a healthy society. without a healthy society the economy will not stay healthy for long. but it is not the state that creates a healthy society. when the state grows too powerful people feel that they count for less and less. the state drains society, not only of its wealth but of initiative, of energy, the will to improve and innovate as well as to preserve what is best.‖ 66 some of us might disagree with that last claim as being too harsh on the positive aspects of the state but there is no doubt from this that margaret thatcher believed in society and could see, in 1980, that if there were no such thing as society, there would be chaos: ―people yearn to be able to rely on 62 ibid. detraction is where someone ―without objectively valid reason, discloses another‘s faults and failings to persons who did not know them‖. 63 http://www.margaretthatcher.org/document/104431. 64 ibid. 65 ibid. 66 ibid. http://www.margaretthatcher.org/document/104431 the denning law journal 175 some generally accepted standards. without them you have not got a society at all, you have purposeless anarchy.‖ 67 again, we could take issue on questions of cause and effect when she claimed that: ―a healthy society is not created by its institutions, either. great schools and universities do not make a great nation any more than great armies do. only a great nation can create and involve great institutions of learning, of healing, of scientific advance.‖ 68 whichever comes first, however, she was clear that society exists. only after all that did she come in her 1980 conference speech to the famous expression: ―to those waiting with bated breath for that favourite media catchphrase, the ‗u‘ turn, i have only one thing to say. you turn if you want to. the lady's not for turning.‖ 69 so was she performing a u-turn when, in that woman’s own interview in 1987, she later said, ―there‘s no such thing as society‖? 70 the 2010 conservative manifesto section entitled ‗change society‘ 71 was led by two telling comments that ―there is such a thing as society‘ but ―it‘s just not the same as the state‖. while understandably distancing themselves from her offending phrase, the conservatives and all of us should look again at how she put things generally and what she really meant in this specific interview. she liked the phrase ―there is no such thing as‖, using it on many occasions. she said that ―there is no such thing as public money‖, 72 ―there is no such thing as political murder, political bombing or political violence‖ and quoting milton friedman in light-hearted fashion at a fund-raising dinner, endorsed the saying that ―there is no such thing as a free lunch‖. 73 ―there is no such thing as…‖ was a rhetorical device which expressed her personality, much like david cameron has taken to ―firing up‖ 74 this and that. there were two relevant passages in her woman’s own interview. she said that too many people had been given to understand that government would deal with their problems: 67 ibid. 68 ibid. 69 ibid. 70 ‗woman‘s own interview‘ http://www.margaretthatcher.org/document/106689. 71 conservative manifesto 2010. 72 http://www.margaretthatcher.org/document/105454. 73 http://www.margaretthatcher.org/document/108381 74 s lee, ‗firing up the speech-writers, firing up society‘ http://www.respublica.org.uk/item/firing-up-the-speech-writers-firing-up-society where i also set out some of these extracts from margaret thatcher‘s speeches. http://www.margaretthatcher.org/document/106689 http://www.margaretthatcher.org/document/105454 http://www.margaretthatcher.org/document/108381 http://www.respublica.org.uk/item/firing-up-the-speech-writers-firing-up-society lord denning & margaret thatcher, law & society 176 ―so they are casting their problems on society. and who is society? there is no such thing! there are individual men and women and there are families and no government can do anything except through people and people look to themselves first; it is our duty to look after ourselves and then also to look after our neighbour.‖ 75 you can almost hear her saying that. it was robust but it was not quite as harsh as it has been portrayed. moreover, in the same interview, margaret thatcher paid particular attention to badly treated children and explained why she supported the national society for the prevention of cruelty to children as her long-standing ―foremost‖ charity. she said that we should not be shying away from blaming the parents who have let children down and we should not excuse our own failure to help those children by foisting responsibility on society as a whole because, ―there is no such thing as society. there is a living tapestry of men and women and people and the beauty of that tapestry and the quality of our lives will depend upon how much each of us is prepared to take responsibility for ourselves and ... help by our own efforts those who are unfortunate.‖ 76 she explained in her memoirs that she meant in the interview that ―society was not an abstraction, separate from the men and women who composed it, but a living structure of individuals, families, neighbours and voluntary associations‖. 77 this is similar to the spirit of david cameron‘s big society. in an earlier interview, with the spectator magazine in 1972, 78 there is a passage in which she uses ‗society‘ in four successive sentences, followed swiftly by a single, albeit long, sentence in which she uses ‗society‘ three times: ―well, there are certain fundamental bases of our society here. the family is the basic unit of society. you have a rule of law that has also been quite basic to the freedoms of our society. democracy is another essential feature of our society …‖ 79 75 ‗woman‘s own interview‘ (n 70). 76 ibid. 77 the downing street years (n 13) 626; cf david lodge, ginger, you're barmy (macgibbon & kee 1962, penguin 1984) 186 ―... there was no such thing as society.” 78 http://www.margaretthatcher.org/document/101821. 79 ibid. http://www.margaretthatcher.org/document/101821 the denning law journal 177 ―… but those are all really quite basic things in our society and if you go on debunking them, go on debunking the rule of law, suggest that the family is not a good unit of society or try to challenge democracy by having pressure groups which have enormous power, and therefore try to wield power beyond their numbers against a will that has been democratically expressed in elections, then you are fundamentally overthrowing society to try to get your own views adopted.‖ 80 in between these earlier and later affirmations of society, the central passage which deserves deeper analysis on another occasion is from her first party conference speech as leader of the conservatives, in 1975, when she spoke of the significance of the rule of law for society: ―i come last to what many would put first. the rule of law. the first people to uphold the law should be governments. it is tragic that the socialist government, to its lasting shame, should have lost its nerve and shed its principles over the people's republic of clay cross. and that a group of the labour party should have tried to turn the shrewsbury pickets into martyrs. on both occasions the law was broken. on one, violence was done. no decent society can live like that. no responsible party should condone it. the first duty of government is to uphold the law. if it tries to bob and weave and duck around that duty when it‘s inconvenient, if government does that, then so will the governed, and then nothing is safe—not home, not liberty, not life itself.‖ 81 those who think that margaret thatcher lacked lord denning‘s sense of humour or his way with words might care to wake up and smell the bluebells. the perfume house of penhaligon‘s created their most famous scent, bluebell, in 1978, just in time for it to be worn by margaret thatcher when she won the 1979 general election to become our first female prime minister. she liked not just the smell but also the blue belle connotations. it has reportedly been a favourite fragrance also of princess diana, kate moss and gwyneth paltrow. margaret thatcher repeatedly punned her way through major speeches. for example, at the 1980 lord mayor‘s banquet where the lord mayor was not only an accountant but a member of the society of glovers, margaret thatcher was able to point out that, ―as you see, i too am a glover and proud of it. yes, i have always liked gloves, though taking the gloves off tends to come with the job of prime minister.‖ 82 80 ibid. 81 http://www.margaretthatcher.org/document/102777. 82 http://www.margaretthatcher.org/document/107380 http://www.margaretthatcher.org/document/102777 http://www.margaretthatcher.org/document/107380 lord denning & margaret thatcher, law & society 178 what else was in her blue handbag? jim zirin, an american lawyer, wrote in forbes 83 about meeting margaret thatcher through the delorean case: ―i first met her when i took her deposition in london in 1992 in an action seeking roughly a billion dollars that her majesty‘s government had brought in the federal court in new york against an accounting firm i represented. she was a witness … ‗no need to lecture me, mr zinn,‘ she said shaking her head, ‗i am a lawyer by training, and i know all about your legal system.‘ she then withdrew from her large handbag a paperback copy of the constitution. ‗read it, mr zinn, it is inscribed to me by all nine justices of your supreme court. a magnificent declaration of liberty and human rights. i am never without it.‖ she still had that copy of the constitution in her handbag when he met her ten years later. 4. lifetimes of experience this country is about to embark on a serious period of remembrance of those who served in the first world war. 84 two of lord denning‘s brothers died in that great war. two others also served heroically but survived, as did he. the first to die was jack, the eldest, who died in 1916 at the somme. two years later, when meant to be resting from the front line, lord denning rode twenty miles to find the grave. ―there were two wild flowers. one red and one purple. i picked them and sent them home to father and mother.‖ 85 he put up a new wooden cross made by his sappers, although now there is a stone memorial from the war grave commission, with the words ―you may rest assured that i shall have done my duty.‖ 86 that was from jack‘s last letter home, which in turn was influenced by a letter he carried with him from tom, ending with horace‘s line that it is ‗sweet and honourable to die for one‘s country‘. words matter. so do images. if we see a part as the whole, that is a distorted impression of real life. the home of this law journal is at the university of buckingham, an unusually independent and pioneering institution which was championed by lord denning and baroness thatcher so 83 http://www.forbes.com/sites/jameszirin/2013/04/08/margaret-thatcher-1925-2013a-personal-recollection/ 84 https://www.gov.uk/government/speeches/speech-at-imperial-war-museum-onfirst-world-war-centenary-plans 85 the family story (n 28) 48-9. 86 ibid, 49. http://www.forbes.com/sites/jameszirin/2013/04/08/margaret-thatcher-1925-2013-a-personal-recollection/ http://www.forbes.com/sites/jameszirin/2013/04/08/margaret-thatcher-1925-2013-a-personal-recollection/ https://www.gov.uk/government/speeches/speech-at-imperial-war-museum-on-first-world-war-centenary-plans https://www.gov.uk/government/speeches/speech-at-imperial-war-museum-on-first-world-war-centenary-plans the denning law journal 179 it is appropriate that it should encourage the drawing of lessons from their lives and the sharing of them with successive generations of students, just as lord denning never tired of meeting students or of touring the world in the cause of freedom under the rule of law. 87 while my original aim of exploring the thoughts and actions of lord denning and margaret thatcher on the rule of law and national security must await another opportunity, this precursor to that project has a more general application as a call to offer students a more rounded picture of leading figures in our public life. this is sorely needed. alan milburn, the former labour mp and now the independent reviewer of social mobility appointed by the conservative and liberal democrat coalition government, concluded in his 2012 report that ―across the professions as a whole, the glass ceiling has been scratched but not broken.‖ 88 at the end of the nineteenth century, tom denning was born over a draper‘s shop but went on to become lord denning, master of the rolls. between the wars of the twentieth century, margaret thatcher was born over a grocer‘s shop but went on to become our first woman prime minister and then baroness thatcher. it would be difficult to find two people further apart politically than sir hebert warren and denis pritt kc but we need to recover the spirit in which they helped the poor young tom denning to make his way in the law. to return to lord quinton‘s intriguing observations about character and personality, this does not mean we need what he describes as ―grimly factual biography‖ 89 but some attempt to capture the spirit of these leading lights in law and politics. given the cricketing context of lord denning‘s judgment in miller v jackson 90 and margaret thatcher‘s use of ―a straight bat at the wicket‖ 91 to describe the approach of her former deputy prime minister, william whitelaw, the point could be put thus: if margaret thatcher was the don bradman 92 of politics, a record-breaker, way ahead of everyone else, but not universally loved, then lord denning was the keith miller 93 (no relation to the miller of miller v jackson). in a sequel to this article, i intend to consider some of lord denning‘s strokes of genius, some of his unplayable deliveries and some of margaret thatcher‘s relentless, bradmanesque ability 87 the business of judging (n 1) 412. 88 a milburn, fair access to professional careers a progress report by the independent reviewer on social mobility and child poverty (may 2012) 3: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/61090/ ir_fairaccess_acc2.pdf. 89 quinton (n 10) 21. 90 miller (n 18). 91 http://www.margaretthatcher.org/document/107789. 92 n cardus, ‗d g bradman‘, reproduced in a ross (ed), the penguin cricketer’s companion (penguin 1981, first published 1960) 301. 93 r robinson, ‗touch of a hero‘ (1951), reproduced in r guha (editor), the picador book of cricket (picador 2001) 125. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/61090/ir_fairaccess_acc2.pdf https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/61090/ir_fairaccess_acc2.pdf http://www.margaretthatcher.org/document/107789 lord denning & margaret thatcher, law & society 180 to concentrate and extraordinary will to win. keith miller was an all-rounder who played for australia with bradman and afterwards. miller was a pilot in the second world war, a striking figure, a formidably fast bowler, attacking batsman and talented fielder who was loved by the crowds for his energy and ability to surprise. the doyen of australian cricket journalists, ray robinson, wrote of keith miller that, ―his personality abolishes the boundary and brings the crowd into the game with him.‖ 94 lord denning‘s character and personality drew students and the wider public into an appreciation of the zest he brought to the rule of law. in the words of margaret thatcher, writing in her own hand to george thomas, the speaker of the house of commons, to thank him for the dinner he had hosted the previous evening in honour of the retiring master of the rolls, it was ―a great privilege to hear tom denning speaking from a lifetime of experience‖. 95 having listened to lord denning in my own student days, this article is my attempt to go beyond boundaries in bringing later generations of students into the public square with some appreciation of that experience of lord denning and baroness thatcher. 94 ibid, 131. 95 http://www.margaretthatcher.org/document/123849. microsoft word 22-5 academic freedom cw131010.doc 117 denning law journal 2010 vol 22 pp 117 141 academic freedom – rhetoric or reality? michael j beloff qc∗ academic freedom is a concept that has a particular significance in a university, not least in a university, which, uniquely in a british context, prides itself on its independence from the state. my interest in academic freedom was sparked by a set of instructions received in this instance from the government of hong kong. the issue in the prospective litigation was relatively simple. the department of education had planned some reforms. as is no more unusual in hong kong than it is in england, the proposals met with vocal opposition from certain academics. a senior civil servant telephoned the head of the faculty of the hong kong institution of education, the focus of the controversy and – it was asserted and indeed found by a commission of inquiry (“the commission”) established to investigate the affair – suggested that the turbulent teachers be disciplined. no one disputed that this was an attempted interference with academic freedom. for a government to seek to impose sanctions on academics for expressing their views on educational matters would be a paradigm example of such interference; but the question on which i was asked to advise and in relation to which i ultimately represented the department was more nuanced. for the civil servant had also confronted her academic critics directly, making no threats, but expressing her disagreement with their views in a manner as trenchant as that in which their views had themselves been expressed. was this too another example of interference with academic freedom? on the one hand it was argued – an argument upheld by the commission – that it was. even if the civil servant made no actual threat, statements from a person of such status carried with it the possibility of sanction. on the other hand, it was argued that the civil servant was doing no more than exercising her own freedom of expression. in the end i persuaded the administrative court in hong kong that the civil servant was indeed acting within her own rights and that the commission’s criticism was to that extent unwarranted.1 but my preparation * the hon michael j beloff, blackstone chambers, ma (oxon), hon lld (dmu). 1 secretary for justice v commission of inquiry on allegation relating to the hong kong institute of education [2009] hkc 102 (“hkie case”). academic freedom – rhetoric or reality? 118 for the litigation showed me how elusive is the notion of academic freedom and how little considered by the courts – at any rate in this country.2 google – that modern short cut to – or, some would say – substitute for research, revealed no english law book devoted exclusively to the subject. it is found neither in the text nor in footnotes of education and the courts.3 professor eric barendt’s “freedom of speech”4 gives it a mere 2 pages out of a total of 526 and locates it in a chapter called “free speech in special contexts”. however he informs me that he will shortly fill the lacuna in english commentary by a book devoted entirely to the topic. i can aspire in this lecture to provide a footnote for that much anticipated work.5 i can, however, only speculate as to where professor barendt will find the relevant material for i can trace only one english statutory provision which makes a specific reference to academic freedom. the education reform act 1988 (“era”) established a body of university commissioners, whose main duties under section 203 were to secure that the statutes of any institution within their remit included provision for dismissal of staff for redundancy or good cause not, you may think, the most auspicious point of departure for protection of academic freedom, since it involved the abolition of tenure, colloquially, jobs for life for academics, long regarded as a sine qua non for those who taught in college or on campus. however the regime was softened by the provision of section 202(2), that in the exercise of such function. “…the commissioners shall have regard to the need to (a) ensure that academic staff have freedom within the law to question and test received opinion, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at their institutions.” 2 the commission cited: (1) the first global colloquium of university presidents (columbia university, january 18-19th, 2005): report §14.3 (pp 91-92). (2) university of delaware faculty handbook (section 4, personnel policies for faculty, b academic freedom and standards of code): report §14.7 (p 93). 3 j r mcmanus qc education and the courts (bristol: jordans, 2nd edn, 2004). 4 e barendt freedom of speech (new york: oxford university press, 2nd edn, 2007). 5 in the united states, unsurprisingly the literature, at any rate periodical, is more lavish, but not necessarily more enlightening. see eg: hofstadter and metzger the development of academic freedom in the united states (new york: columbia university press, 1955); t haskell “justifying the right of academic freedom in the era of ‘powers/knowledge’” in l menand (ed) the future of academic freedom (chicago: university of chicago press, 1976); j peter byrne “academic freedom a special concern of the first amendment” 99 yale law journal 251. the denning law journal 119 the terms of that paragraph derived from a speech made by the secretary of state for education and science in october 1987. their inclusion in the act, by amendment in committee in the house of lords, was at first resisted by lord hailsham, the then lord chancellor, who suggested that they added nothing to the provision that the commissioners had also to have regard to the need to apply (b) “the principle of justice and fairness”. whether the sub paragraph (a) was in truth redundant because of sub-paragraph (b) has never been put to proof since neither provision appears to have been subjected to judicial scrutiny. the section from era, does, however, reflect the conventional understanding of the concept. black’s law dictionary defines academic freedom as: “the right (esp. of a university teacher) to speak freely about political or ideological issues without fear of loss of position or other reprisal.”6 cafas, the council for academic freedom and academic standards, in their website suggest academic freedom “is increasingly under attack, particularly when staff expose instances of competition and shoddy standards” but how many, if any, academics have actually lost either job or privileges because of their nature of their opinions is not evidenced.7 in r v hull university ex p page8 the substantive issue was whether the academic’s standard letter of appointment stipulating for termination of three months notice was trumped by the university statutes which required dismissal only for “good cause” – argued to be crucial to secure the principle of academic freedom.9 i persuaded the house of lords that the provisions of contract and statute could enjoy a peaceful co-existence and that the university could lawfully dispense with the services of mr page, a philosopher who seemed, in dress and demeanour, to have sprung straight from the pages of a campus novel about the sixties by kingsley amis,10 malcolm bradbury11 or david lodge.12 he had not himself expressed controversial views on political or ideological issues, indeed the university’s concern was rather that he had expressed few views of any kind, and that (putting such personal matters to one side) the compulsory maintenance in 6 black's law dictionary (st. paul: west thomson, 9th edn, 2009). 7 tenure is key to the protection of the principle of academic freedom. in keefe v geanakos: 418 f 20 359 the us court of appeals said pithily “academic freedom is not preserved by compulsory retirement even on free pay”. 8 [1993] ac 682. 9 ibid, at 691 g-h. 10 lucky jim (new york: penguin, 1954). 11 the history man (london: picador, 1975). 12 changing places (secker & warburg, 1975). academic freedom – rhetoric or reality? 120 office of senior academics, appointed in an era of university expansion, when (unlike today) posts were more plentiful, and applicants fewer, constituted a barrier against the recruitment of livelier younger minds. in mckinney v university of guelph13 (“mckinney”) in which the supreme court of canada held that a mandatory retirement age of 65 for the teaching of staff did not violate constitutional right to non-discrimination since universities were private bodies, la forest lj made the same point succinctly: “tenure provides the necessary academic freedom to allow free and fearless search for knowledge and the propagation of ideas.”14 adding “mandatory retirement not only supports the tenure system which underpins the specific and necessary ambience of university life. it ensures continuity faculty renewal, a necessary process to enable universities to be centres of excellence. universities need to be at the cutting edge of new discoveries and ideas, and this requires a continuing infusion of new people. in a closed system with limited resources this can only be achieved by departures of other people.”15 but he also recognised that threats to academic freedom could be the product of forces external rather than internal to the university. “the legal autonomy of the universities is fully buttressed by their traditional position in society. any attempt by government to influence university decisions especially decisions regarding appointment, tenure and dismissal of academic staff, would be strenuously resisted by the universities on the basis that this could lead to breaches of academic freedom.”16 in clark v university of melbourne17 kaye j spoke of the traditional meaning of academic freedom as being the “unimpeded freedom to teach, to study, and to research without any external control either of the teaching staff or the curriculum of the tertiary institution.” this dictum also demonstrates a 13 [1990] 3 scr 229. 14 ibid, at 282. 15 ibid. 16 ibid, at 273. 17 [1978] vr 457. the denning law journal 121 further strand in the fabric of the concept: freedom as to what is taught as well as to who teaches it. although as professor barendt has rightly said: “academic freedom... may not be confined to higher education, but clearly has more resonance in that context than it does in schools,”18 the most celebrated legal case involving academic freedom was one of the many trials of the century19 involved what we would call a secondary school. it turned on the butler act of tennessee that prohibited the teaching in any university or school supported by public funds “of any theory that denies the story of divine creation of man as taught in the bible, and to teach instead that man has descended from a lower order of animals.” the penalty was a fine of $500. in 1925 john scope, the local high school’s science teacher (and part time football coach), fell foul of this law by teaching evolution as darwin conceived it. the prosecution instructed william jennings bryan, three times unsuccessful democratic presidential candidate, the defence clarence darrow, a jury advocate of remarkable gifts. darrow actually lost the case in the rhea county court in dayton because the judge ruled inadmissible his further cross-examination of prosecuting counsel – a bizarre procedural step which would only occur this side of the atlantic in a novel by jeffrey archer.20 darrow impaled bryan by competing him to defend the literal truth of the book of genesis. the moral victory was his; and he won on a technical point in the tennessee supreme court.21 but academic freedom can extend beyond the right of a school or university to decide who can teach, and what can be taught. sweezy v new hampshire22 (“sweezy”) was the first case in which the justices of the supreme court discussed academic freedom. frankfurter j (who was joined by harlan j) observed that the “four essential freedoms” of a university are to determine “who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”23 let me then turn for what may be taught to how it should be taught. in merdeka university berhad24 the federal court of malaysia upheld by a majority of 4-1 the refusal of the government of a petition to establish a 18 barendt, above n 4, p 500. 19 d mcrae the old devil: clarence darrow: the world’s greatest trial lawyer (london: simon & schuster, 2009). 20 see, for example, j archer a prisoner of birth (new york: macmillan, 2008), where a former judge became an advocate in an english court. 21 152 tenn 424 278 s.w. 57 (tenn 1926). 22 354 us 234 (1957). 23 ibid, at 263. 24 (1982) 2 malayan law journal 243; see m j beloff qc “minority languages and the law” (1987) 40 current legal problems 139. academic freedom – rhetoric or reality? 122 university where the language of tuition would be chinese on the ground that the use of chinese as the medium of instruction would be “for an official purpose” and so prohibited under article 152(1)(a) of the constitution, which enshrined bahasa as the national language. the majority were all ethnic malays: the dissentient an ethnic chinese. malaysia had recently severed its ties in matters constitutional with the privy council so these grave matters were never put to proof in a forum divorced from the racial tension which then – but far less so now – afflicted that beautiful country. representing, as i did, the petitioners, i regretted that lost opportunity.25 the chinese language suffered another more recent blow in hong kong. the chinese university of hong kong was established in 1963. it was clearly intended to complement the university of hong kong which had been in existence since 1912 and in which the principal language of instruction was english. the preamble of the ordinance under which it was created26 stated: “whereas it is desirable to establish a university with a federal constitution in which the principal language of instruction shall be chinese”. times changed: and the university thought it should change with them. it was felt that unless english were to replace chinese as the principal language of tuition its attraction to overseas students and teachers and its access to globalised scholarship would be diminished. the question was whether the university could lawfully make this switch. section 8 of a later ordinance,27 (“the 1976 ordinance) currently in force, provided (so far as material) that: “subject to this ordinance and the statutes and subject also to review by the council, the senate shall have control and regulation of: (a) instruction, teaching and resources” in statute 14 of the statutes of the university made pursuant to section 13 of the same ordinance, paragraph 4 provides “subject to the ordinance and statutes, the senate shall have the following powers and duties: …………………………. (c) to direct and regulate the instruction and teaching in approved courses of study ……………… 25 lord bingham of cornhill (as he now is) suggested to me informally that had the matter gone to the privy council my clients, the chinese secondary schools association, would have won. 26 chinese university of hong kong ordinance cap (1969) 1109 (“cuhko”). the case itself is li yin kee v cuhk hcal 5/200 (on appeal). 27 chinese university of hong kong ordinance chapter (1976) 1109. the denning law journal 123 in short nothing impeded the senate in determining the language of instruction in the university, unless the ordinance otherwise provided. the potential source of the impediment to the proposed change of direction lay in the preamble to the 1976 ordinance which provides: “whereas (c)“it is declared that the chinese university of hong kong in which the principal language of instruction shall be chinese shall continue to: (i) assist in the preservation, dissemination, communication and increase in knowledge; (ii) provide regular courses of instruction in the humanities, the sciences and other branches of learning of a standard required and expected of a university of the highest standing; (iii) stimulate the intellectual and cultural development of hong kong and thereby to assist in promoting its economic and social welfare.” the hong kong administrative court held that this preamble could not be used to fossilise the way in which teaching was delivered. it held “that the relevant part of the preamble should be interpreted in the historical context” that is to say had outlived its usefulness. although i have doubts about the legal soundness of the decision – and had so advised the unsuccessful claimant it can at least be seen to be a victory for academic freedom. infringement of university’s autonomy might have taken place if the hong kong government had sought itself to compel the university to adapt another language as the principal language of instruction against the will of the university bodies (senate and council) who wished to retain it. but that was not this case. the solution, which would have been legally impeccable, would have been to amend the preamble. but one may readily appreciate why, given hong kong’s particular status as an sar within the prc, the obvious course was not taken. it would not be consonant with the prc’s self-esteem for the hong kong legislative council to enact a measure that would suggest that english was superior to mandarin. the court in reaching its decision did not itself evaluate the respective merits of tuition in english or tuition in chinese. it is well-established that the courts cannot review purely academic decisions, for example as to the grading of an institution28 or even, for that matter of a student. an american academic has said: 28 institute for dental surgery v hefce [1994] 1 wlr 292 (“ids”). academic freedom – rhetoric or reality? 124 “the justification for defence is that courts are not well-equipped to second-guess the exercise of the professional scholarly standards that advance the constitutional value of democratic competence. courts are properly concerned that judges should not be ersatz deans and educators”.29 or as sedley j said: “there is (no) sufficient basis upon which this court can hold the eventual rating to be so aberrant as to call for explanation. we lack precisely the expertise which would permit us to judge whether it is extraordinary or not.”30 this judicial self-restraint is itself paradoxically a guarantee of academic freedom for courts, no less than the executive, should render under universities things that are properly universities. academic freedom is institutional as well as personal. the dictum of frankfurter j about the four essential freedoms in sweezy,31 which i have already cited, adopted a statement of principle made by academics of certain south african universities, who identified those freedoms as indeed pertaining to the university, not to the members of its academic community.32 the same statement of principle referred to the business of university as being – “...to provide that atmosphere which is most conductive to speculation, experiment and creation.”33 because: “a university ceases to be true to its own nature if it becomes the tool of church or state or any sectional interest. a university is characterized by the spirit of free inquiry, its ideal being the ideal of socrates – ‘to follow the argument where it leads’. this implies the right to examine, question, modify or reject traditional ideas and 29 robert post “academic freedom and the production of knowledge”: julian rosenthal foundation lecture north western university school of law p 22. 30 above n 28, at 261. 31 above n 22. 32 statement of a conference of senior scholars from the university of cape town and the university of witwatersrand. 33 cited by frankfurter j at 354 us 234 (1957). the denning law journal 125 beliefs. dogma and hypothesis are incompatible, and the concept of an immutable doctrine is repugnant to the spirit of a university.”34 a like attachment of the concept to institution, not individual, is found too in the basic law of hong kong. the key phrase appears in chapter vi (which bears the heading: education, science, culture, sports, religion, labour and social services). article 137 provides that – “educational institutions of all kinds may retain their autonomy and enjoy academic freedom...” in the catholic diocese of hong kong v secretary of state for justice35 the administrative court emphasised the importance of such autonomy citing the united nations committee on economic, social and cultural rights, general comments no 13 of 1999, dealing with the right to education under article 13 of icescr ” to which i shall return. it noted: “as the general comments no 13 pointed out, autonomy must be consistent with systems of public accountability, especially in respect of funding provided by the state and an appropriate balance has to be struck between institutional autonomy and accountability.36 and aided schools are heavily funded by the government of the hong kong sar. the privilege of autonomy carried with it the requirement of accountability. that must mean that the government, which provides huge funding to aided schools, has a right to regulate the management of aided schools for the purpose of accountability. autonomy cannot therefore be an absolute right.”37 and that has always been the case prior to july 1997 given that aided schools were under the control of the education ordinance and the applicable codes of aid. the government and the legislature have always possessed the right to enforce changes regarding the 34 cited by frankfurter j ibid, at 263 35 [2007] 4 hklrd 483. 36 ibid, at para [246]. 37 ibid, at para [247]. academic freedom – rhetoric or reality? 126 management of aided schools. article 137(1) only guarantees the right to ‘retain’ institutional autonomy. .... it does not confer a new or improved right of autonomy on educational institutions. it does not require a greater degree of independency to be conferred upon them.”38 this analysis reflected economic reality, not political bias. much the same had been said by le forest cj in mckinney: “[t]he universities’ fate is largely in the hands of the government and ... universities are subjected to important limitations on what they can do, either by regulation or because of their dependence on government funds.”39 a different reality is reflected in the relationship between university and staff. it is the very freedom of the university that has, in the usa, been widely deployed to restrict an individual academic’s rights in respect of freedom of grading and curriculum content.40 i recall that, when a visiting professor in international sports law at the university of tulane in new orleans – my course lasted a bare fortnight! – i found out that i was obliged to allocate so many students to a particular grade, irrespective of my view as to their actual merit, and that this was not unusual on an american campus. in edwards v california university of pennsylvania41 the court held: “[the] first amendment does not allow a university professor to decide what is taught in the classroom, but rather protects the university’s right to select the curriculum.” professor barendt has noted that: 38 ibid, at para [248]. article 136 of the basic law permits and enables the government of hong kong to formulate policies on the development and improvement of education, “including the language of instruction”. 39 above n 13, at 272. 40 see for example urofsky v gilmore 216 f 30, 401, 414 (4th circuit 2000), wozniak v comy 236 f 3888, 891 (7th circuit 2001), brown v armenti (274 f 30, 69 (3rd circuit 2001). 41 156, f 30 488, 491 (3rd circuit 1998). in parducci v rutland usdc for the middle district of alabama northern division 316 f supp 352 the plaintiff’s teacher obtained reinstatement after she had been dismissed for assigning a short story by kurt vonnegut which the principal had described as “literary garbage”. the court held that: “however wide the discretion of school officials, such discretion cannot be exercised so as to deprive teachers of their first amendment rights” (another exception is parate v isibor 868 f 23, 821, 827-828 (6th circuit 1989)). the denning law journal 127 “…a teacher has no right to decide what subject he teaches in a particular class. he is employed to teach, say mathematics or french, and the syllabus subjects are prescribed.” 42 it follows that someone employed to lecture in law cannot consistently with his contractual obligations, teach languages (even were he competent to do so). this is not to say that freedom in research and teaching (subject always to funding and terms of engagement), is not a derivative of institutional autonomy, commentators on the south african constitution have written: “while the constitutional protection of academic freedom may come down in favour of the institution in conflict with academics concerning certain curricular and grading issues ... a general principle that academic freedom is exclusively that of institutions and not of individual academics cannot hold under our constitution.”43 so while academic freedom may be a chameleon concept it is at least clear that it does not enable either academic institutions or individuals to do so whatever they choose in performance of academic functions or in pursuit of academic goals. it is not a trump card which overrides all others. both institution and individual are subject to the constraints of the law and of resources. charles clarke mp, when secretary of state for education, spoke dismissively of the value of classical and medieval studies. the issue, however, as framed by him was as to whether the state should fund such studies, directly by supporting the institutions where it was taught, or indirectly by supporting the students who receive the tuition. he did not suggest that the teaching of classical studies should be banned.44 yet the call to purge the content of universities courses is not unknown even in the democratic world. sandra day o’connor,45 former supreme court justice and chancellor of the university of north carolina at chapel hall, recalls that, in her cancellarial, not judicial role, she had to defend the university and its faculty from fierce attacks from the political right over the choice of books chosen for the first year reading assignment, including (in the 42 above n 4, at 496 (for us and canadian cases). see ditto at 498-499. 43 woolman et al constitutional law of south africa (south africa: juta law, 2nd edn, 2002) pp 42-61. 44 see his letter to the guardian of may 10th 2003. 45 “unchallenged orthodoxies” speech delivered at a conference in austin, texas in 2008. academic freedom – rhetoric or reality? 128 wake of 9/11) one about the koran (said to be unconstitutional as breaching the separation of church and state) and another about the life of a low paid worker in the usa, (said to be an attempt to indoctrinate socialism). we naturally and instinctively rebel against the notion that constraints, other than legal or financial, can be imposed on study and research, but even here the picture is not painted in black and white, but in shades of grey. take the corollary of the scopes trial. should students be able to consider the case in favour of intelligent design, or should it be banned from the academic agenda, as richard dawkins, the distinguished scientist and militant atheist, suggests?46 should it be permissible to inquire into whether certain forms of intelligence is unevenly distributed between different ethnic groups, the thesis of the late hans eysenck,47 or classes, the proposition espoused by charles murray48 or whether women are intrinsically less gifted than men in the exact sciences, the speculation of the former president of harvard, larry summers, now restored to the inner economic councils of a democratic president?49 much of the contemporary debate over university admissions has, as its premise, that substantial numbers of potential students lose out in the battle for scare places to innately less gifted competitors, who enjoy advantages of superior schooling and more advantageous backgrounds; but how large the numbers are is a matter for speculation, not statistics. my own view is that, as articulated by the great us judge and jurist, oliver wendell holmes echoing john stuart mill, and adopted by lord steyn.50 “the best test of truth is the power of thought to get itself accepted in the competition of the market place.”51 accurate information should inform political judgment – although it need not necessarily constrain it. alan johnson mp the then home secretary, sacked professor david nott as chairman of the advisory council on the misuse of drugs for saying in a lecture that cannabis was less dangerous than 46the guardian september 1st 2005. in september 2008 the royal society, education director, professor michael reiss, was compelled to resign for advocating the teaching of creationism alongside evolution in school science classes. 47 h eysenck race intelligence and education (london: temple smith, 1971). 48 c murray and r j herrnstein the bell curve (new york: free press, 1994). 49 “summers remarks on women draw fire” the boston globe january 17th 2005. 50 simms v secretary of state for home department [2000] 2 ac 115 at 126. 51 so too lord nicholls observed in reynolds v times newspaper, “the high importance of freedom to impart and receive information and ideas has been stated so often and so eloquently that this point calls for no elaboration” [2001] 2 ac 127 at 200. the denning law journal 129 alcohol. no doubt the minister could justify his own claim that even were that so, it did not inexorably compel the legalisation of cannabis.52 more insidiously the tilt towards sponsorship of research by corporate bodies risks impairing academic freedom, not positively by prohibiting forms of research but negatively by channelling them into areas of profit for sponsors pharmaceutical oil companies. it has been calculated that 70% of published articles in the biosciences had in part been written by corporate pps.53 but the law itself sets limit to free speech in a variety of ways and for a variety of reasons: which apply as much as to what is said inside as outside a university. for example, holocaust denial is a criminal offence not only in israel but in many european countries: and no one could shelter behind the shield of academic freedom if he used the lecture theatre to preach racial incitement, or to defame his political colleagues, although more controversial were the libel proceedings brought by the british chiropractors association against simon singh for casting doubt on efficacy of their treatment described by him as “bogus”. the case raised issues as to the dimensions of the defence of fair comment,54 fortunately resolved in favour of mr singh in judgment of the court of appeal, adopting a dictum from an american case “scientific controversies must be settled by the methods of science rather than by the methods of litigation." now in this tour d’horizon i stress that the law on academic freedom touches on the issue allusively rather than directly. academic freedom is not found as a discrete right in the us constitution’s first amendment,55 the new 52 lord rees of ludlow “scientific advice must be respected even when rejected” the times november 5th 2009. 53 jonathan hari “peter mandelson’s assault on science” the independent november 17th 2009. 54 [2010] ewca civ 350. see also “bca v singh: the story so far: sense about science” sunday times june 3rd 2009. peter wilmshurst, a consultant cardiologist at royal shrewsbury hospital is being sued by nmt for casting doubt on the efficacy of their device startfax as a cure for migraine; the times, november 26th 2009, p 22. see too on the case brought by mr thomason a danish radiologist warning about risks of one of its drugs. “drug giant uses libel law to gag doctors” sunday times december 20th 2009. alternative therapists and makers of medical devices are using the uk courts to silence critics and libel laws stifle health doubts. sunday times: november 1st 2009 which suggested that “scientists and specialists who question medical treatments and alternative therapies are being gagged by firms using britain’s draconian libel laws”. 55 the constitution of the united states makes no mention of “academic freedom”. however, free speech is guaranteed by the first amendment to the united states constitution (“first amendment”), which reads:“freedom of religion, press, expression: congress shall make no law respecting an establishment of religion, or academic freedom – rhetoric or reality? 130 zealand bill of rights the european convention on human rights, the canadian charter of rights and freedoms, the malaysian constitution, the indian constitution, the israeli basic law: human rights and dignity, or the law of australia which is entirely devoid of a bill or charter of rights. indeed in the usa academic freedom is given no special status. in keyishian v board of regents56 brennan j (speaking on behalf of the supreme court) held that teachers and professors had the same free speech and political privacy rights afforded to other citizens, stating that academic freedom “… is a special concern of the first amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”57 the court of appeal (10th circuit) re-affirmed keyishian by refusing to construe the first amendment as giving professors a “special constitutional right of academic freedom not enjoyed by other governmental employees.”58 academic freedom does not exist on its own in a vacuum, but is therefore a sub-set of the individual academic’s right to free speech under the first amendment. accordingly, those who claim violations of their right to “academic freedom” under the first amendment have to pass all of the tests that would entitle them to relief in first amendment actions.59 the general procedure in relation to this is as follows. the plaintiff first has to establish that the speech in question is within the scope of expression protected by first amendment this is because the first amendment does not protect certain categories of speech, including defamation, incitement, the lewd and obscene, and pornography produced with real children.60 the plaintiff then has to establish that (s)he has standing to sue under the first amendment. the plaintiff does not need to prove that governmental action (which may not be statutory) has had a direct effect on the exercise of first amendment rights. however it must have caused or must threaten to cause a direct injury to the plaintiffs’ interests. the injury alleged is usually a “chilling effect” on the individual’s right to free speech under the first amendment. the mere knowledge and fear that the government might take in the future some other action detrimental to that prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” 56 385 us 589 (supreme court, 1967). 57 ibid, at 603. 58 robert w schrier v university of colorado (2005) 427 f 3d 1253 (10th circuit, (2005). 59 oladele oladotun omosegbon v richard h. wells (2003) 335 f 3d 668 (7th circuit, 2003). 60 ashcroft v free speech coalition 535 us 234 (supreme court, 2002) at 245-246 per kennedy j delivering the opinion of the court. this was touched on also in report 14.1. the denning law journal 131 individual will not suffice. furthermore, allegations of a “subjective chill” “are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm”.61 evidence of a “cognisable injury” will, however, be accepted to establish standing, such as the risk that an exercise of the plaintiff’s freedom under the first amendment would be detrimental to his or her reputation.62 reprimands for statements by an employee which may be “construed to convey the message that like comments in the future would put the [the employee] in danger of discharge” was held to be of “constitutional significance.”63 the plaintiff must then show that the injury must be “fairly traceable” to the defendant’s allegedly unlawful conduct and that it is “likely to be addressed” by the requested relief.64 if however the “chill” has passed, for example where it is based on a regime no longer in existence, the court may be reluctant to grant nominal damages on which to hang a declaration, as the latter remedy would only have effect as to future dealings between the parties.65 once standing has been established, it is a separate question as to whether the action has in fact violated the first amendment:66 a threat would clearly be sufficient to suggest such violation. in trotman v board of trustees of lincoln university of the commonwealth system of high education.67 the plaintiffs (former and current faculty members of a state university) sought, inter alia, judicial censure of a course of conduct that they considered to have violated their constitutional right to engage in spirited criticism of administrative policies with which they disagreed.68 the court of appeal of the 3rd circuit found that certain letters and telegrams threatening disciplinary action against the plaintiffs, which the district court at first instance had prevented them from adducing: “...would have been relevant to their claim of specific present objective harm, and hence presents a far different claim than.... ‘generalised allegations of chill’... since evidence of chill would be relevant to the plaintiffs’ claim that defendants’ activities did in fact 61 laird v tatum 408 us 1 (supreme court, 1972) particularly at 11-15. 62 meese v keene 481 us 465 (supreme court, 1987) at 472-474. 63 yoggerst v stewart 623 f 2d 35 (7th circuit, 1980). 64 above n 62, at 476. 65 morrison v board of education of boyd county 521 f 3d 602 (6th circuit, 2008) at 608-610. 66 above n 62, at 479. 67 635 f 2nd 216 (3rd circuit, 1980). 68 ibid, at 225. academic freedom – rhetoric or reality? 132 result in an unconstitutional restraint on protected speech and conduct, the district court erred in excluding the plaintiffs’ proffered evidence”. the court further held that the district court had also: “...overlooked the fact that those letters contained language sometimes explicitly and other times implicitly threatening discipline up to dismissal if plaintiffs continued to engage in speech or other protected activity such as picketing. they therefore do not stand on the same level as letters written by adherents of opposing viewpoints on an internal dispute. they were written by a state official in a position of authority with the power to impose discipline. they are therefore state action which must be exercised in compliance with the mandate of the first amendment and cannot be dismissed as merely part of an academic debate.”69 it is also “axiomatic” that any system of prior restraint of expression comes to court bearing a “heavy presumption against its constitutional validity” since it seeks to exclude speech from the “marketplace of ideas.”70 but even in the united states, it is well-recognised and established that the protection of the first amendment does not extend to everything claimed to be “freedom of expression” or “academic freedom” under the first amendment: so academic freedom is not a “licence for uncontrolled expression at variance with established curricular contents and internally destructive of the functioning of the institution.”71 and generally conduct that involves “substantial disorder or invasion of the rights of others is not immunised by the guarantee under the first amendment.”72 academic freedom is not absolute and may also be balanced against competing interests, including those of the government. it has been 69 ibid, at 228. 70 alderman v the philadelphia housing authority 496 f 2d 164 (3rd circuit 1974) at 168 -170 citing numerous authorities. 71 clark v holmes (1972) 474 f 2d 928 (7th circuit 1972) at 931. 72 tinker v des moines 393 us 503 (supreme court 1969) at 513. the denning law journal 133 suggested, with reference to keyishian and sweezy, that in such circumstances, the interests have to be strong, and the extent of intrusion carefully limited.73 one area where a balancing act is required is in relation to the freedom of a state employee to speak. in such a case, there is little to support the imposition of a restraint on all the speech of public employees, even concerning a particular topic74 and government workers are constitutionally protected from dismissal for publicly or privately criticising their employer’s policies on matters of public concern. in this context academic freedom balances the “interests of the employee as a citizen in commenting on matters of public concern and the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employers.” such cases therefore call for a fact-sensitive and sophisticated weighing of competing values.75 certain legitimate interests of the state may limit a teacher’s right to say what he pleases, for example: the need to maintain discipline or harmony among co-workers; the need for confidentiality; the need to curtail conduct which impedes the teacher’s proper and competent performance of his daily duties; and the need to encourage a close and personal relationship between the employee and his superiors, where that relationship calls for loyalty and confidence.76 traditionally, academic freedom and freedom of expression can only be relied on where the communication in relation to which the claim is brought is made qua citizen and on a matter of public concern.77 however, the supreme court recently held in a 5-4 judgment78 that government employees who make statements of public concern outside the course of performing official duties retain some possibility of first amendment protection; whereas the same employees who make statements pursuant to their official duties, are not speaking as citizens for first 73 dow chemical company v allen, 672 f 2d 1262 (7th circuit 1982) at 1274-1276. 74 above n 70, at 174. 75 pickering v board of education of township high school district 205, will city 391 us 563 (supreme court, 1968) at 566-574; board of county commissioners, wabaunsee county v keen a umbehr 518 us 668 (supreme court, 1996) at 672, 676. 76 above n 71, at 931 citing pickering. 77 above n 75, at 568. 78 garcetti v ceballos 547 us 410 (supreme court, 2006). academic freedom – rhetoric or reality? 134 amendment purposes and can be disciplined (if necessary) for articulation of such views. furthermore, the court took pains to clarify that the analysis would not necessarily apply in the same manner to a case which, unlike the one before it did not involve speech related to scholarship or teaching.”79 so there is a difference between an academic qua academic and an academic qua citizen. furthermore, such statements or criticism, if false, will not be protected if there is proof that they were knowingly or recklessly made.80 the first amendment does not clothe a person with immunity vis à vis statements are shown to be false and inaccurate and whose truth could be easily ascertained.81 the exceptions to this rule of silence on academic freedom where constitutions are concerned are the german constitution in which freedom of research and teaching is guaranteed by a separate clause of the freedom of expression provision82 and the south african constitution which provides that: (1) everyone has the right to freedom of expression, which includes (a) freedom of the press and other media; (b) freedom to receive or impart information or ideas; (c) freedom of artistic creativity; and (d) academic freedom and freedom of scientific research.' new zealand has, like the united kingdom, embedded academic freedom in a non-constitutional statute ie the education act 1989.83 79 ibid, at 424-425. 80 above n 71, at 1738 (although it seems the comment was obiter). 81 megill v board of regents of the state of florida, 541 f 2d 1073 (5th circuit 1976) at 1085-1086. 82 article 5(3). 83 s 160 education act 1989 is the objects clause of the relevant part and provides as follows: “object: the object of the provisions of this act relating to institutions [which includes universities] is to give them as much independence and freedom to make academic, operational, and management decisions as is consistent with the nature of the services they provide, the efficient use of national resources, the national interest, and the demands of accountability” (emphasis added) ss 161 education act 1989 provides as follows: “academic freedom – the denning law journal 135 judicial review of a suspension of statutory processes relating to unitec (a polytechnic’s) application to be reconstituted as a university under s 162 of the education act 198984 went on appeal. the court of appeal 85 held that: “[63] we see ss 160 and 161 as fulfilling two primary roles. first, they are a parliamentary admonition to ministers and others on the importance of academic freedom and the need for public tertiary institutions to have autonomy (see, in that regards, s 161(4)). secondly, they tell institutions how they are to act (see s 161(3)). in that regard, the sections stand with ss 180 and 181 (which address the functions and duties of councils of institutions). we also accept that ss 160 and 161 may be important when the disestablishment of an institution is contemplated.” there was, however, no discussion of the academic freedom whose importance they recognised. (1) it is declared to be the intention of parliament in enacting the provisions of this act relating to instructions that academic freedom and the autonomy of institutions are to be preserved and enhanced. (2) for the purposes of this section, academic freedom, in relation to an institution, means – (a)the freedom of academic staff and students, within the law, to questions and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions: (b)the freedom of academic staff and students to engage in research: (c)the freedom of the institution and its staff to regulate the subject-matter of courses taught at the institution: (d)the freedom of the institution and its staff to teach and assess students in the manner they consider best promotes learning: (e)the freedom of the institution through its chief executive to appoint its own staff. (3) in exercising their academic freedom and autonomy, institutions shall act in a manner that is consistent with – (a) the need for the maintenance by institutions of the highest ethical standards and the need to permit public scrutiny to ensure the maintenance of those standards; and (b) the need for accountability by institutions and the proper use by institutions of resources allocated to them. (4) in the performance of their functions the councils and chief executives of institutions, ministers, and authorities and agencies of the crown shall act in all respects so as to give effect to the intention of parliament as expressed in this section.83” (emphasis added) 84 united institute of technology v attorney-general [2006] 1 nzlr 65. 85 attorney-general v united institute of technology [2007] 1 nzlr 750. academic freedom – rhetoric or reality? 136 finally in an unreported decision denis asher of the employment relations authority, lally v the vice chancellor victoria university of wellington wa,86 seems to have adopted the respondent’s contention that “...consistent with s 161 of the education act 1989, in general academic freedom is primarily exercised within the sphere of expertise of academic staff ... and involves a corresponding responsibility and is not to be interpreted as equivalent to an uninhibited licence”87 – in that instance the broadcasting to outsiders of concerns about the university’s disciplinary process. while under article 34 of the basic law in hong kong all persons have the “freedom to engage in academic research, literary and artistic creation and other cultural activities”, the phrase “academic freedom” does not appear in chapter iii of the basic law which lists the fundamental rights of hong kong residents. those majority jurisdictions which do not recognise academic freedom as being an autonomous, or fully self-contained freedom, see it rather as a constituent part of the broader right to freedom of expression.88 this has obvious implications from the perspective of the law. first in every jurisdiction – even, i repeat the usa – freedom of expression is qualified. the european convention on human rights (“echr”) article 10 (now part of the fabric of our domestic law by reason of the human rights act 1988 (“hra”): allows for restrictions “prescribed by law and necessary in a democratic society”. in support of interests, including “for protection of the reputation or rights of others and for preventing disclosure of information received in confidence.” second, academics have no special right to legal protection. 86 wa 140/06 5030767 (october 18th 2006). 87 at [33], citing also rigg v university of waikato [1984] nzlr 149. 88 the commission made reference to three us decisions concerning the ambit of freedom of expression. (1) baumgartner v united states (1944) 322 us 665, concerning a citizen’s right to criticise civil servants and public policy: report 14.8 (p 93). (2) lewis v harrison school district no.1 (1986) 805 f (2d) 310 (8th circuit), concerning the protection of free speech by an academic even where it is bluntly worded and directed at specific government officials: report 14.9 (p 93). (3) new york times co v sullivan (1964) 376 us 254, confirming the right to free speech under the us constitution does not turn on the truth, popularity, or social utility of the ideas and beliefs offered: report §14.12 (p 94). the denning law journal 137 the us jurisprudence demonstrates, as i have already shown, that academic freedom is not per se a fundamental right for individuals in its us constitutional context.89 there are other examples from elsewhere which make the same point. mr riggs was a senior lecturer in the university at waikato who had coauthored an article in the student newspaper alleging that inadequate supervision of the university’s biology isotope laboratory had probably resulted in students dying of cancer: that this had been covered up: and contained a challenging line “students are evidently dispensable”. there being, as it turned out, no basis for his allegations, his contract was terminated. the visitor said in riggs v university of waikato: “...we are unable to accept the notion, as propounded to us by mr rigg, that there is some kind of freedom of expression, relevant to the present case, which cannot be correctly defined as academic freedom of expression in the strict sense yet is enjoyed by academics when speaking in their capacity 'as members of the university community' or 'citizens of the university' and is greater than any freedom of expression enjoyed by ordinary citizens in ordinary life.” 90 "the only justification which we can see for a special right to freedom of expression in a university environment is the need for academics, whether teachers or students, to feel free to pursue the search for knowledge and learning and truth without fear of institutional disciplinary action being used to divert them from these purposes in order to force conformity with views held by the university authority." and the court in the hong kong case which i cited at the outset expressed its conclusions in the same way. “whatever the perception may be, academics today are not cloistered in ivory towers divorced from the realities of the world. to the contrary, academics work in association with both the private sector and the public in all areas of advancement. this applies not only in respect of scientific and technological innovation but in areas of law reform, social welfare and the like. academia, with its intellectual 89 keyishian v board of regents 385 us 589 (supreme court, 1967); schrier v university of colorado 427 f.3d 1253 (10th circuit, 2005) at 1265-1266 and see above n 71. 90 above n 87, at 207. academic freedom – rhetoric or reality? 138 rigour, also plays an important role in analysing and, if necessary, criticising the nature and effectiveness of public policies and measures. to misunderstand the commission (which came to its findings within the context of very particular facts) and to suggest that senior public administrators and academics should never be able to privately engage in robust debate over matters of opinion and policy, the one criticising the other, is, in our view, not only artificial and stultifying, it has no basis in law. we do not see that it would be improper for a senior official to privately engage an academic in order to state government's views, even to the extent of arguing that the academic should in the result change his or her views. that is all part of the ebb and flow of free debate. accordingly, the fact that a senior public administrator privately confronts an academic to criticise that academic's published opinions on any particular matter does not itself constitute a violation of art 137 or the academic's own right to freedom of expression. it only does so when the confrontation contains, directly or by implication, a threat of sanction of the kind we have described earlier in this judgment. that, as we see it, is the position in law.”91 nor is academic freedom given any special status in international law. it is obliquely vouched for, not in international covenant on civil and political rights (“iccpr”) but in the international covenant on economic, social and cultural rights (icescr”) both of which were adopted by the united nations in 1966) and came into force in 1976.92 article 13 which recognises the right of everyone to education, is in itself silent on academic freedom but has been the subject of commentary by the united nations committee on economic, social and cultural rights in un committee on escr, general comment no.13 (1999) [as noted in the hong kong catholic schools case], which suggests that academic freedom is inherent in the very concept of the right to education, and itself cross-refers to the unesco recommendation concerning the status of higher-education teaching personnel (1997).93 91 above n 1, at [75-76]. 92 in 1976, the government of the united kingdom ratified the two covenants in respect of the united kingdom and its dependent territories. 93 adopted by the general conference of unesco at its 26th plenary meeting on november 11th 1997. the denning law journal 139 so in the context of international law academic freedom is relegated to a footnote in a comment! 94 these instruments are in large part hortatory and aspirational but there is a telling phrase in the comment that academics must not be exposed to fear of repression by the state “or any other actor”.95 in 2008 i was (with a colleague at blackstone chambers) asked to advise the legal implications of a motion to be debated (as indeed it was) at the annual national congress of the university and college union on may 28 – 30th 2008. the motion having expressed, by way of preface, a strong critique of israel’s policies on the west bank and gala invited congress to resolve that, amongst other matters: • colleagues be asked to consider the moral and political implications of educational links with israeli institutions, and to discuss the occupation with individuals and institutions concerned, including israeli colleagues with whom they are collaborating; • the ariel college, an explicitly colonising institution in the west bank, be investigated under the formal greylisting procedure.96 we advised that the resolutions, if acted on, would offend against various provisions of outlawing racial discrimination legislation but was also outside the union’s constitutional powers. we noted that under rule 2.1 of the rules the primary aims and objects of the union are to “…promote the professional interests of members individually and collectively…”; and under rule 2.2 a further aim and object is to “promote adult, further and higher education and research”. we noted the union had also committed itself on its website to the principle of academic freedom and the need to resist attempts to erode academic freedom. against this background, we did not see how it could be consistent with the union’s rules to pass a resolution mandating certain actions by its members including potential severance of links with other academic institutions. such quasi-boycott, in our view, did nothing to promote the interests of members at professional level or to promote academic freedom. indeed it pointed in the opposite direction. as a result of our opinion, the union retracted and 94 see too the lima declaration on academic freedom and autonomy of institutions of higher education, which recalls, in its preamble, the extensive set of international standards in, amongst other things, the icescr and makes various proclamations on academic freedom and autonomy of institutions of higher education. proclaimed in lima by the 68th general assembly of world university service on september 10th 1988. 95 para 38. 96 grey listing being a precursor to black listing. academic freedom – rhetoric or reality? 140 retreated. i have spoken so far of rights of university teachers. but rights of free expression are for students as well as staff. in the usa it has been held that universities infringe free speech rights if they attempt to control content of student journals97 or to discriminate in support student societies on grounds of society’s beliefs.98 in south africa 1987 regulations which required universities to take steps directed towards the prevention and punishment of student political activity were set aside on grounds of vagueness.99 so academic freedom is expressly protected, albeit again as a subset of freedom of belief and opinion. this applies not only to what students can say, but whom they must hear. the education act (no.2) (1986) s.43(1) imposes an obligation on universities and colleges of further and higher education100 to take steps that “are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers”.101 this affects gown, but not town. it has been held that the risk of disorder outside university premise is not a ground for refusing permission to a visiting speaker,102 where the controversial invitee to the liverpool university conservative association was a south african diplomat of the era of apartheid. let me return last to the malaysian case merdeka university berhad.103 the majority considered – counter-intuitively that a private university would nonetheless be a public authority for the purpose of that provision, but also observed that universities were: “…an instrument for bringing about one nation out of the disparative ethnic elements in our population.”104 the minority noted too in his coda 97 hosty v carter 325 us f 30 945 (7th circuit 2003). 98 rosenberger v university of virginia (1995) 515 us 819. 99university of cape town v ministers of education and culture: (house of assembly and house of representatives [1988] 3 sa 203. 100 but not in other fora eg town hall (outside the context of elections) s 43 (2). barendt op cit fn 4 supra p.501 101 see c.r. evans “campus speech codes” education law journal 2010 vol 11 issue 2 p.95 102 r v liverpool university ex p [1991] 1 qb 124. 103 above n 23. 104 ibid, at 252. the denning law journal 141 “…it is not out of place to state that the activities of modern universities embrace a wider scope than mere teaching. when sufficiently financed, research and experimental work of great value to the public and nation is constantly being carried out in them.”105 the majority observation was more eloquently stated than the minority one: but both said something of extreme importance about the place of universities in a nation’s life. in particular in england which is now, like malaysia a multicultural country – albeit with radically different proportions and indeed characteristics of the constituent ethnic groups – universities, the intellectual finishing schools of the best and brightest of the population, provide a unique opportunity for sharing the fruits of different background and collaborating in the genesis of shared values. this may not be itself an aspect of academic freedom, but that opportunity would be much diminished if academic freedom did not exist. and, even if the spirit of inquiry ought not to be cribbed and confined, by a need to produce work of strictly practical benefit, there is little doubt that, as the minority merdeka judge observed, whether by design or accident, such work is generated: and, even where it is not, the study of philosophy, literature and history both process and product – are essential to the maintenance of a civilised society. academic freedom, whether the perquisite of institution or of individual, but as i would prefer to say, of both, underpins those benefits. next time there is an attempt to redefine in legal forms our fundamental rights and freedoms – and the conservative party promised, if elected to introduce a british bill of rights106 – it should not be overlooked. 105 ibid, at 255. 106 something that may not be highest on the agenda of the coalition government. unincorporated associations: property holding, charitable purposes and dissolution denning law journal 2014 vol 26 pp 261-273 case commentary the effect of “fairness” on prenuptial agreements luckwell v limata [2014] ewhc 502 judith bray∗ the background to the case until the seminal judgment of radmacher v granatino1 pre-nuptial or pre-marital agreements were given limited weight in english law. prior to this decision there had been considerable debate about the status in law of all nuptial settlements both pre and post marriage. the key question for radmacher was whether pre-nuptial settlements should attract equal weight as agreements drawn up during the course of a marriage. in macleod v macleod2 the privy council finally resolved the issue with regard to postnuptial settlements holding that agreements drawn up post marriage would carry weight when the court decides a claim for financial relief under s 25 matrimonial causes act 1973. the english courts, unlike other jurisdictions, have always been reluctant to uphold agreements, which purport to deprive the court of its jurisdiction3 in deciding financial provision. there was also an underlying presumption that parties to a marriage did not intend their agreements to form legally binding contracts and finding adequate consideration within such agreements was often difficult unless the agreement is incorporated in a deed.4 the effect of the supreme court’s decision in radmacher was not to reverse this approach. pre-nuptial agreements were not made binding on the court but rather the court is invited to give weight to all nuptial agreements subject to certain safeguards. the subsequent decision in ∗ llb, llm (london), professor of law, barrister, the university of buckingham. 1 [2010] uksc 42. 2 [2008] uksc 64. 3 see hyman v hyman [1929] ac 601; edgar v edgar [1980] 1 wlr 1410; j wall, ‘n v n (jurisdiction: pre-nuptial agreement)’ [1999] 2 flr 745; j connell, ‘m v m (pre-nuptial agreement)’ [2002] 1 flr 654; x v y (y and z intervening) [2002] 1 flr 508. 4 see judith bray, ‘pre-nuptial agreements under scrutiny’ (2009) dlj 131. 261 case commentary luckwell v limata5 gives guidance as to when the court will be prepared to deviate from pre-marital agreements even when the parties have been given independent legal advice and both parties are fully aware of the possible effect of such an agreement. the decision in radmacher v granatino the facts of this case are well known. nicolas granatino, a french national, claimed financial relief from his very wealthy wife, katrin radmacher, a german national on the breakdown of their marriage. this was in spite of a pre-nuptial agreement which both the parties had signed three months before marrying in 1998 in london. the agreement stated that neither party would seek financial provision from the other. it had been drawn up in germany by a notary and was written in german and as the claimant was not fluent in written german it had to be translated into english by the german notary. the husband had not sought a formal translation nor had he sought legal advice although the german notary had urged him to do so. the agreement was intended to protect the current wealth and property interests of the wife who was also expected to receive further large sums from her family and it had been drawn up partly on the instigation of the wife’s father. at the time of the marriage the husband was himself relatively wealthy; he came from what was described in the case as “a well-to-do family”6 and he was working as a banker for jp morgan, earning a salary in excess of £120,000 and he had excellent future prospects. they made their home in london and had two children. however he became disillusioned with banking which had taken its toll on family life and decided to embark on an academic career taking up research studies at oxford, which led to a considerable loss of salary. by then the marriage was in difficulties and the parties agreed to separate in 2006. in spite of the existence of the pre-nuptial agreement the husband claimed he was not bound by its terms and sought financial relief. the judge at first instance7 awarded the claimant a substantial sum by way of financial relief. she attached little weight to the pre-nuptial agreement because of the circumstances in which it had been signed; in particular the lack of legal advice although she did take note of the fact that he had agreed to be bound by an agreement which he had then signed. the court of appeal disagreed and held that the agreement should have been given decisive weight holding that the judge had been wrong to find that the circumstances in which the pre-nuptial agreement had been reached reduced the weight to be attached 5 [2014] ewhc 502 (fam). 6 [2010] uksc 42 [534]. 7 mrs justice baron. 262 the denning law journal to the agreement. it held that the award should make provision for the husband’s role as the father of the two children, but should not otherwise make provision for his own long-term needs. the husband appealed to the supreme court. as mentioned earlier since macleod v macleod8 the english courts have given effect to post-nuptial agreements but were not prepared to give effect to ante-nuptial or pre-nuptial agreements. the reasons included: fear that pressure could have been brought by the party who had superior financial means when a marriage was imminent and a sense that pre-nuptial agreements would be more appropriate for legislative rather than judicial development. crossley v crossley9 was an exception where the terms of a prenuptial agreement were upheld in spite of the fact that it had stated that neither party should apply to court for financial relief. crossley was held to be exceptional on the facts because it had been a short marriage, barely a year between two very wealthy individuals who had both taken legal advice before entering into the agreement. both were marrying for the second time and both had children from a previous marriage. the supreme court upheld the judgment of the court of appeal in radmacher and gave weight to the pre-nuptial agreement. although it welcomed the decision in macleod for “sweeping away the archaic notions of public policy which have tended to obfuscate the approach to nuptial agreements”.10 it held that macleod was wrong to hold that ante-nuptial or pre-nuptial agreements are fundamentally different from post-nuptial agreements. three key issues were identified by the supreme court: a) were there circumstances attending the making of the agreement that detract from the weight that should be accorded to it? b) were there circumstances attending the making of the agreement that enhance the weight that should be accorded to it; the foreign element? c) did the circumstances prevailing when the court’s order was made make it fair or just to depart from the agreement? under (a) the main factors which would detract from the agreement would include evidence of undue influence of pressure or any factor suggesting that the husband or wife did not enter into it with their own free will. baron j had taken into account the lack of independent legal advice for the claimant but the supreme court held that in this case “insofar as the safeguards were not strictly satisfied, this was not material on the particular facts of this case.”11 8 [2008] uksc 64. 9 [2008] 1flr 1467. 10 macleod (n 8) [561]. 11 ibid [562]. 263 case commentary the court accepted that in cases in the past the nationality of the parties may have had some influence on the issue. where the parties were from a jurisdiction or jurisdiction where an ante-nuptial agreement would be binding then a court from the united kingdom in the past would then take judicial notice of this. however the court concluded that “any agreement made after this judgment, the question of whether the parties intended their agreement to take effect is unlikely to be in issue, so foreign law will not need to be considered in the future.”12 finally, the court held that in the light of such cases as white v white13 and mcfarlane v mcfarlane14 the overriding consideration of any court in ancillary relief proceedings is that of fairness so that criteria must be applied to any ante-nuptial agreement. according to macfarlane the court determines what is fair by looking at the three strands of need, compensation and sharing. these three strands should equally be applied to ante-nuptial agreements to determine whether the agreement and the following proposition should be applied to both ante-nuptial and post-nuptial agreements. “the court should give effect to a nuptial agreement that is freely entered into by each party with full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.”15 it is this last factor that of “fairness” the court had to address in the recent case of luckwell v limata. when will the court hold the terms of an agreement not to be “fair” and so override an agreement that has been entered into freely by two parties who are both fully aware of the consequences of such an agreement? there were several similarities with the facts of radmacher. as in radmacher the case concerned an application for ancillary relief by a husband and there were children of the family who spent time with both parents. again there was a marked disparity in the financial resources of the two parties. the wife was very wealthy although she fell short of the wealth of katrin radmacher. this presented a more difficult case for the court to determine because any financial provision for the father would impact on the lifestyle of the mother and the children, which was not the case in radmacher. 12 [2008] uksc 64 [563]. 13 [2001] 1 ac 596. 14 [2006] 2 ac 618. 15 radmacher (n 1) [564]. 264 the denning law journal the high court the core issue of the case this case concerned a claim by a husband for financial provision upon divorce. before the marriage the parties had entered into a “pre-marital agreement” in which the husband had agreed that he would not make any claim either during or after the marriage in relation to the wife’s separate property or gifts made to her by her family. two separate “supplemental agreements” were made during the course of the marriage on occasions when the wife’s parents and in particular her father made substantial gifts to the wife. it was agreed that firstly, the marriage would not have taken place had the pre-marital agreement not been made and secondly, the parents would not have made gifts to the daughter unless the supplementary agreements had been made. in making a claim for financial provision the husband was found to be acting in breach of both these agreements. the core issue in the case was how much weight should be placed on the pre-marital and supplementary agreements, by the court in exercising its discretion under the matrimonial causes act 1973, s 25 and further whether it would be right to dismiss the husband’s claim in the light of the agreements. the facts of the case the couple involved in the case were francesco limata (frankie) and victoria luckwell. victoria’s parents, mike and mary luckwell, played a key role in the couple’s relationship but had separated in 1997. frankie and victoria married in july 2005 but had already been living together for about a year. the marriage date had been brought forward because victoria was pregnant with their first child. just less than two weeks before the wedding frankie agreed to sign a pre-marital agreement [the pma], which was prefaced with a recital stating: “victoria and francesco each specifically acknowledges and agrees that the marriage would not be taking place without this agreement having been negotiated and signed by each of them.”16 the agreement referred to the separate property of victoria and that of francesco and at the time victoria owned a property in london called elm row which was worth £750,000 and frankie owned a flat in eastlake house which was worth £50,000. apart from the flat frankie had no significant 16 luckwell v limata [2014] ewca 502 (fam) [12]. 265 case commentary assets or property whereas victoria had “substantial inheritance prospects” from her parents. the judge drew particular attention to recital k which acknowledged that in certain jurisdictions it may not be possible to oust the jurisdiction of the court’s power to override the terms of an agreement the parties intended that this agreement would be treated as binding and of full force and effect.17 the judge concluded that “he [frankie] can have been under no doubt or illusion that in the event of separation and divorce the agreement was still intended to govern” but he also concluded that “victoria knew from recital k that the agreement could be ‘overridden’ by the court in certain jurisdictions and will unquestionably have been advised that england and wales is one of them.”18 at the time when the agreement was drawn up frankie had received independent legal advice from a solicitor experienced in pre-marital matters which had been highlighted as a key requirement in radmacher19 and of course the claimant had not availed himself of such advice in that case. after the marriage the parties made a series of moves around various properties in london. initially they moved to a flat at westbourne terrace bought with capital from victoria and her father mike. after less than a year they moved again to a house in avonmore road costing approximately £1 million including legal fees. the cost was financed by mike and mary, victoria’s parents. the judge concluded that without the pre-marital agreement the parents would not have agreed to finance this purchase. a second agreement was drawn up referring to the first pma. it expressly stated that this house in avonmore road would be treated as victoria’s separate property. within a matter of months the couple moved again into property at connaught square owned by mike. this was in the words of the holman j “a fine, period house in a prestigious square, the value of which has escalated in the last few years”.20 soon afterwards the property was offered to victoria by mike on certain terms and conditions. there was no question that the house was being offered to frankie as well. the judge recognised that at this time december 2007 mike had a very low regard for frankie. “i am quite clear that by now mike had low regard for frankie and did not trust him an inch. he clearly regarded him as lazy and workshy…he had always regarded frankie as a gold-digger who had married for money and from whom victoria’s money and the assets he now proposed to give victoria had to be utterly protected.” mike requested that a second supplemental agreement be drawn up before mike was prepared to transfer the house in connaught square to victoria. 17 ibid [18]. 18 mcleod v mcleod [2008] ukpc 64 [19]. 19 radmacher (n 1). 20 mcleod (n 18) [31]. 266 the denning law journal frankie would be allowed to live there but never to own it. one important condition in this agreement was that victoria would never sell, mortgage or charge connaught square without mike’s prior consent. this was not put into writing but in evidence mike agreed that he thought victoria would feel bound by the promise she had made to him. of course this had no effect in law and the judge stated that the court would not be bound by this promise or any other oral agreement between the parties. by 2008 both parties were living at connaught square with their young son and two further children were born. frankie had a series of jobs but was eventually made redundant and the family began to suffer serious problems. both victoria and frankie suffered from mental health issues and then a third child was born with serious health issues. by november 2012 the marriage was in serious difficulties and frankie left the family home. in march 2013 victoria presented a petition for divorce. after frankie moved out of the family home the personal circumstances of the parties were starkly different. victoria led an affluent lifestyle supported by her parents from whom she received £81,000 per annum enabling her to have a series of foreign holidays and to engage the services of a nanny. by contrast frankie had no fixed address and lived firstly with his mother who ran a bed and breakfast hotel and then with the help of a loan he took a short lease of a small flat where he could have his children to stay. he had very limited earnings from a job paid at the minimum wage. with this background the claimant husband made a claim for financial provision. the case can be seen as a challenge to the effectiveness of a pre-nuptial agreement made with the aid of legal advice and where both parties are fully aware of the effect of signing an agreement. the preliminary issue: should the case be heard in private? the case was heard before mr justice holman who sat throughout in public. the preliminary issue to be determined by the judge was whether the case should be heard in public. he applied rule 27.10 of the family procedure rules 201021 and decided that the effect of the rule was that it provided a starting point or default position that proceedings for a financial remedy after divorce will be held in private rather than a presumption in favour of cases of this nature being heard in private. he gave a number of persuasive reasons why he thought this case should be heard in public. firstly he pointed to the strong shift towards greater transparency in family law 21 family procedure rules, r 27. 10 provide: ‘(1) proceedings to which these rules apply will be held in private, except – (a) where these rules or any other enactment provide otherwise; (b) subject to any enactment provide otherwise.’ 267 case commentary hearings22 which he felt was only satisfied by inviting the public into the court room and would not satisfied by merely publishing judgments. “whilst greater publication of judgments will make for greater transparency, publication of the judgment alone suffers from the limitation, or even defect, that the public can only read what the judge chooses to say. it is only if the public are able to see and hear from themselves how the proceedings unfold in the court room, what the oral evidence and arguments are, and indeed how the judge comports himself, that there is true transparency, open justice and public accountability.”23 he argued that since witnesses in other types of cases have to give their evidence in public there was no reason why witnesses in a case determining financial provision should be allowed to give evidence in private. finally he referred to the fact that the core issue in this case concerning the weight to be given to a pre-nuptial agreement was one of considerable and legitimate current and public interest.24 he concluded that the case should be heard in public. the findings of the trial judge having considered the facts of the case, mr justice holman pointed out that it was then his statutory duty to apply the different subsections of s 25 matrimonial causes act. his approach followed radmacher was to consider the agreement and the supplementary agreements but only insofar as the factors in s 25 had been met. the most significant factors in this case were the resources of each party, their needs and their contributions. he concluded that at the time of trial neither party had any earned income although frankie, who was currently studying for a degree had the capacity to earn a reasonable salary in the future. he also pointed out that although both parties needed a suitable home frankie did not have a permanent home so the children could come to visit him. he then applied radmacher and made some significant comments on the effect that pre-nuptial agreements now have on applications under s 25. counsel for the applicant husband drafted a number of propositions of law which the judge adopted and quoted at length. “1. it is the court, and not the parties, that decides the ultimate question of what provision is to be made; 22 he referred to the practice guidance on transparency in the family courts; publication of judgments, issued by the president of the family division on 16 january 2014 which came into effect on 3 february 2014 therefore preceding the start of the hearing in this case. 23 luckwell (n 16) [5]. 24 ibid. 268 the denning law journal 2. the over-arching criterion remains the search for ‘fairness’, in accordance with section 25 as explained by the house of lords in miller/mcfarlane (ie needs, sharing and compensation). but an agreement is capable of altering what is fair, including in relation to ‘need’; 3. an agreement (assuming it is not ‘impugned’ for procedural unfairness, such as duress) should be given weight in that process, although that weight may be anything from slight to decisive in an appropriate case; 4. the weight to be given to an agreement may be enhanced or reduced by a variety of factors; 5. effect should be given to an agreement that is entered into freely with full appreciation of the implications unless in the circumstances prevailing it would not be fair to hold the parties to that agreement. ie there is at least a burden on the husband to show that the agreement should not prevail; 6. whether it will ‘not be fair to hold the parties to the agreement’ will necessarily depend on the facts, but some guidance can be given: i) a nuptial agreement cannot be allowed to prejudice the reasonable requirements of any children; ii) respect for autonomy, including a decision as to the manner in which their financial affairs should be regulated, may be particularly relevant where the agreement addresses the existing circumstances and not merely the contingencies of an uncertain future; iii) there is nothing inherently unfair in an agreement making provision dealing with existing non-marital property including anticipated future receipts, and there may be good objective justifications for it, such as obligations towards family members; iv) the longer the marriage has lasted the more likely it is that events have rendered what might have seemed fair at the time of the making of the agreement unfair now, particularly if the position is not as envisaged; v) it is unlikely to be fair that one party is left in a predicament of real need while the other has ‘a sufficiency or more’; 269 case commentary vi) where each party is able to meet his or her needs, fairness may well not require a departure from the agreement.”25 the judge placed great emphasis on the fact that the children of the family in luckwell spent time with each parent and so he concluded “the financial circumstances of each of their parents are likely to impact upon their welfare”.26 the task for the judge in this case was to carry out a balancing exercise between the needs of frankie in his role as the children’s father and the weight to be placed on the three agreements, each entered into freely with the benefit of expert legal advice and without the vitiating factors in many cases of duress or non-disclosure. he emphasised the damaging effect on the children of the stark contrasts in current standard of living which existed between the mother and the father. “even if not in his capacity as a former husband, then certainly in his role as a loving and committed father, frankie has a very pressing need for secure accommodation in which he can accommodate all three children together and which does not demean him too much relative to their mother.” this is a clear and established principle of family law.27 the final order of the judge was to ensure that the father was adequately rehoused by victoria in a property which could accommodate all three children when they visited him. he ordered that a house should be purchased at a price not exceeding £900,000. this house would be owned by victoria and when the youngest child reached the age of 22 the house would be sold and the proceeds divided between the parties with 45% reverting to victoria and 55% used to fund a home for the father. there was an additional order that the wife should pay the husband an additional £292,000 for furniture, a car and to meet his liabilities, which amounted to debts in excess of £220,000. he also commented during the course of his judgment on the huge cost of the hearing to the parties which had run into a figure of just over £550,000 with further ancillary costs of over £100,000 and the likelihood that that sum would rise further. it was in his words “an exceptionally bitter hearing”.28 25 luckwell (n 16) [130]. 26 ibid [131]. 27 mr justice holman cited the following words of sheldon j in cartwright v cartwright (1983) 4 flr 463, 471 to illustrate this point: ‘when considering the financial background of the parties, the standard of life that they and the children have been accustomed to, and that the children will undoubtedly continue to enjoy while living with [their mother], i am of the opinion that it is of importance to the children, to their maintenance of good relations between them, that he too should have a settled and secure home to which they can come.’ 28 luckwell (n 16) [6]. 270 the denning law journal the law commission report on pre-marital settlements mr justice holman referred to the fact that the law commission was due to report on pre-nuptial arrangements at the same time as he gave judgment in this case.29 the report was made the day before judgment and in the event the findings of the report would not have impacted on the outcome of this case but were significant in the context of the status of pre-nuptial agreements. the law commission reported on pre-nuptial settlements as part of its wider project on matrimonial property: matrimonial property, needs and agreements: the future of financial orders on divorce and dissolution. 30 it acknowledged that the discretion reserved to the courts as to how much weight should be accorded to a pre-nuptial agreement was at odds with the treatment of preand post-nups in many parts of the world and also is at odds with the wishes of many couples.31 the recommendation in the law commission was for the government to enact legislation to introduce “qualifying nuptial agreements” which would be enforceable contracts, not subject to the scrutiny of the courts. these contracts would enable couples to make their own contractual arrangements about the financial consequences of divorce or dissolution.32 a “qualifying nuptial arrangement” would be subject to certain procedural safeguards and could not be used to contract out of “financial needs”. it is unlikely therefore that the agreement in luckwell v limata33 would have been enforceable as even if it met the conditions for such an agreement the claimant husband would still have been able to demonstrate “financial need”. the procedural safeguards recommended by the law commission included: the need for the agreement to be contractually valid (without evidence of undue influence or misrepresentation); all agreements must be made by deed and each party must sign a statement saying that they understand the nature of the agreement; agreements must not be made within 28 days of the marriage; the need for disclosure of material information about the other party’s financial situation and the need for legal advice to be given to each party. the government responded to the publication of the report with a short press release announcing that the 29 ibid [5]. 30 law commission, ‘matrimonial property, needs and agreements’ (26 february 2014) <http://lawcommission.justice.gov.uk/docs/lc343_matrimonial_property.pdf> accessed 24 august 2014. 31 see law commission, ‘matrimonial property, needs and agreements: the future of financial orders on divorce and dissolution: executive summary’ (tso 2014) [1.10]. 32 ibid [1.11]. 33 luckwell (n 16). 271 case commentary ministry of justice has tasked the family justice council to take forward the law commission’s recommendation to clarify the law of “financial needs” on divorce or dissolution of a civil partnership.34 comment until radmacher v grantino35 english courts had never formally given weight to pre-nuptial settlements when considering financial provision under the matrimonial causes act 1973. this view contrasts with the position in a number of other countries such as canada, certain states in the us, and germany, which all recognise such settlements and are willing to give them effect.36 radmacher allowed the courts to place full weight on pre-nuptial agreements but set out certain conditions, which should first be met. the parties must enter into the agreement freely, without undue influence or pressure, having all the information material to his or her decision and they should both intend that it should be effective to govern the financial consequences of the marriage coming to an end. the court was unanimous in holding that such an agreement could not be allowed to prejudice the reasonable requirements of any children of the family under the age of 18. the underlying principle, which emerges from it, is that no agreement will be upheld if it is deemed to be “unfair” and the court held that it can be rendered “unfair” in two ways. firstly, by the occurrence of contingencies unforeseen at the time of the agreement and secondly where, through circumstances prevailing at the time of separation, one partner would be left in a predicament of “real need” while the other enjoyed a sufficiency. the guidance given by radmacher has been welcomed by both academics,37 practitioners38 and the judiciary39 but it has many limitations and it is still open to the court to interpret when contingencies have arisen that were unforeseen at the time of the agreement and also what constitutes real need. 34 www.gov.uk/moj@mojpress 016/14 press release justice minister the rt hon simon hughes mp published 17 april 2014. 35 radmacher (n 1). 36 see generally jens scherpe (ed), marital agreements and private autonomy in comparative perspective (hart publishing 2012); katharina boele-woelki, joanna miles and jens scherpe (eds), the future of family property in europe (insentia 2011). 37 see generally jens scherpe, ‘marital agreements: private autonomy and fairness’ [2011] clj; jens scherpe, ‘fairness, freedom and foreign elements – marital agreements in england and wales after radmacher v granatino’ [2011] cflq 513. 38 ashley murray, ‘pre-nuptials, lsps and compensation guidance: before and after the law com report’ [2014] flj 491. 39 see mr justice mostyn in kremen v agrest [2012] ewhc 45. 272 the denning law journal therefore there remains the issue of defining what a court deems to be “unfair”. one circumstance mentioned in radmacher was when one party is left in “real need”. “need” is a subjective concept and is subject to a judge’s interpretation. in radmacher the “need” of nicolas granatino was in marked contrast to the “need” of frankie limata in luckwell. in both cases the courts overrode the autonomy of the parties and awarded financial provision. holman j observed in luckwell “if benevolent parents wish to provide gifts to their child, but not to his or her spouse, how (in the absence of legislative change) can they ever safely do so in reliance upon agreement of this kind if they do not prevail in this case?” he continued by commenting that he had sympathy with the father of victoria who had said in court that it would be outrageous if the court made an order at all.40 nevertheless an order was made in favour of the claimant husband. the lengthy report of the law commission show that the law concerning financial provision on divorce is in grave need of reform.41 it accepted that the parties need to be given some autonomy in reaching an agreement concerning their own financial affairs should the marriage breakdown on cost alone this reform is urgently needed. however it is difficult to see the law extending to upholding any agreement even where it meets the qualifying conditions which can be deemed “unfair”. holman j awarded the claimant husband financial relief in luckwell not because “need” were a trump card that will always trump agreements but instead because the agreement itself was inherently “unfair”. it made no provision at all for the husband and in his view it was this factor that made it “unfair”. this suggests that autonomy in pre-nuptial agreements will always be subject to possible scrutiny by the courts where the actual terms and not the circumstances of the agreement are deemed to be “unfair”. lawyers advising the parties when drawing up a pre-nuptial agreement will have to advise their clients on what a court might deem to be considered “unfair” or else their client will risk long and expensive litigation as seen in luckwell. 40 luckwell (n 16) [136]. 41 ‘matrimonial property, needs and agreements’ (law commission, 17 october 2014) <http://lawcommission.justice.gov.uk/areas/marital-property-agreements.htm> accessed 24 august 2014. 273 http://lawcommission.justice.gov.uk/areas/marital-property-agreements.htm judith bray0f( the background to the case the decision in radmacher v granatino the high court the core issue of the case the facts of the case the preliminary issue: should the case be heard in private? the findings of the trial judge the law commission report on pre-marital settlements comment for the purposes of right to self-determination, how does one define people in context of kashmir 165 the denning law journal 2011 vol 23 pp 165-177 british action in libya 2011: the lawful protection of nationals abroad? francis grimal  and graham melling  abstract the forcible protection of one states‟ own nationals on another state‟s territory is one which stretches the boundaries of the broader, inherent right of self-defence available to states under international law. known as the „protection of nationals abroad‟ this doctrine is one which remains, at best, highly controversial. this article examines the lawfulness of action taken by british forces when they rescued and evacuated british nationals prior to libya descending into civil war. it also considers the extent to which action by british forces fits within the highly controversial paradigm of „protection of nationals abroad‟. i. introduction the middle of february 2011 witnessed the descent into civil war of the great socialist people‟s libyan arab jamahiriya. for the united kingdom and other states arose the pressing question of how to provide for the protection and safety of their nationals based in libya. at that time the uk government (along with other governments) made the decision that the appropriate response to the developing and increasingly violent conflict in libya was to take steps to evacuate their nationals from harm‟s way. at the end of that month, british military special forces troops entered libya and effected an operation to evacuate british nationals (and other nationals, as it turned out) from libya. apparently, for good operational reasons, the action by british special forces was planned and executed in secret and presumably without the consent of the libyan government. 1  university of buckingham, uk.  university of buckingham, uk. * the authors would like to thank james a green for his very helpful comments on this article. 1 d leppard, m smith and m colvin “daring sas raid rescues 150 from libyan desert; hostage fear for britons” the sunday times (london, february 27 2011) 1; n meo, m kite and p sherwell “sas swoops in dramatic libya rescue” the sunday current commentary 166 it is notable that little comment was made in the british media (or other international media outlets) with respect to the lawfulness of the intervention of british troops within a sovereign state for the purpose of evacuating its nationals without that state‟s consent. moreover, in its explanation of the operation to evacuate its nationals the british government made no apparent consideration of the status of its actions within international law. this lack of comment could give the impression that such conduct – the intervention by one state in another state to effect the evacuation of its nationals without the host state‟s consent, the concept of „protection of nationals abroad‟ – is acceptable in international law to the point of being uncontroversial. however, the question of the lawfulness or otherwise of the concept of the protection of national abroad is not uncontroversial and is not settled as lawful in international law. the possibility in international law of a state utilising force to protect its own nationals in another state („the protection of nationals abroad‟) is something which has been carefully scrutinised by commentators. 2 the main debate within both the literature and the actual practice of individual states („state practice‟) is whether such action is permissible under international law and, if so, on what basis. 3 broadly speaking, two perspectives on this issue predominate. on the one hand, there are those that argue that the right to protect one‟s nationals abroad is a species of unilateral humanitarian intervention whereas, on the other, there are those who argue that the right to protect nationals abroad is more properly a legitimate exercise of a states inherent right to self-defence. this telegraph (london, february 27, 2011) 1; and s mcgee and j bone “hundreds are still stranded in the desert” the sunday times (london, february 27, 2011) 2. 2 for example, see d w bowett “the use of force for the protection of nationals abroad” in a cassese (ed) the current legal regulation of the use of force (dordrecht: martinus nijhoff, 1986); ja green “passportisation, peacekeepers and proporationality: the russian claim of the protectionf of nationals abroad in selfdefence” in james a green and christopher p m waters (eds) conflict in the caucasus: implications for international legal order (basingstoke: palgrave macmillan, 2010), pp 54 – 79; tc wingfield and je meyen lillich on the forcible protection of nationals abroad : in memory of professor richard b lillich (international law studies series, us naval war college 2002); ke eichensehr “defending nationals abroad: assessing the lawfulness of forcible hostage rescues note” (2007) 48 va j int'l l 451; t ruys “the “protection of nationals' doctrine revisited” (2008) 13 j conflict security law 233; tc wingfield “forcible protection of nationals abroad” (1999) 104 dick l rev 439; and r j zedalis “protection of nationals abroad: is consent the basis of legal obligation” (1990) 25 tex int'l l j 209. 3 green provides a useful summary of the positions taken regarding this issue. see green above n 2. the denning law journal 167 article will confine itself to examining the development of the doctrine of protection of nationals abroad as a species/aspect of states inherent right to self-defence. 4 the authors recognise that there are those commentators that argue that the protection of nationals abroad is a legitimate aspect of unilateral humanitarian intervention. 5 however, as the doctrine of humanitarian intervention is at best an extremely controversial doctrine in itself, it is the authors‟ view that it is not the proper basis for consideration of the development of the doctrine of protection of nationals abroad. 6 moreover, as green notes “…importantly, it is apparent that when states do make a legal claim based on the protection of nationals abroad, they do so within the rubric of self-defence.” 7 some commentators in favour of a right to protection of nationals abroad argue that the doctrine is merely an extension of the inherent right of self-defence available to all states under international law. 8 states‟ support for this doctrine as a manifestation of self-defence is to some extent evidenced by state practice. 9 the criticisms and objections against the practice of utilising force to protect nationals are multifaceted, 10 and this is something this article will carefully scrutinise in part iii. 11 the purpose of this article is to examine whether the action taken by british troops in protecting and evacuating british nationals following the uprising against the gaddafi regime in february 2011 was lawful under international law. this article does not assess the lawfulness of action taken against the gaddafi regime following the adoption of security council resolutions 1970 and 1973: that is left for other commentators to consider elsewhere. the next section, part ii, provides the detail regarding the british action. part iii then examines the extent to which there is a right to protect ones nationals abroad within the broader concept of self-defence under international law. finally, part iv goes on to apply this legal framework to the february 2011 british intervention. 4 ibid, p 59. 5 see d j gordon “use of force for the protection of nationals abroad: the entebbe incident note” (1977) 9 case w res j int'l l 117; and n ronzitti rescuing nationals abroad through military coercion and intervention on grounds of humanity (dordrecht martinus nijhoff, 1985). 6 see green above n 2, p 59. moreover, green goes on to note: “[a] conceptual distinction should be made between such actions and those aimed at the protection of nationals abroad. one claim relates to the protection of a state‟s own nationals, the other to the protection of foreign nationals.” 7 ibid. 8 t farer “panama: beyond the charter paradigm" (1990) 84 am j int'l l 494 at505. 9 see infra part ii on this point. 10 green above n 2, pp 59 – 63. 11 see infra part iii for a complete discussion of this issue. current commentary 168 ii. british action in libya the british evacuation of its nationals from libya during the early passage of the libyan conflict was carried out by members of the british military‟s special forces; the secret air service and the secret boat service. in what was variously described as a „daring‟ and „dramatic‟ raid the two arms of the british special forces completed their mission in a manner befitting their famed motto „who dares wins‟. 12 over the course of the weekend of 26 th and 27 th february 2011 british special forces carried out operations to rescue and extract british and other nationals from libya. 13 it was widely reported in the british media that members of the special forces had first arrived in tripoli a number of days before the evacuation to prepare the ground for their intended mission. 14 as the situation in libya deteriorated and the threat to british nationals intensified the operation was put into gear. striking out from their base in tripoli the special forces troops travelled extensively throughout the libya gathering up british and other nationals to take them to pre-determined airfields under the control of anti-gaddaffi forces and private security professionals under the pay of multinational oil companies in the area for air evacuation. 15 from these extraction points british and other nationals were then flown to a british airforce base in malta on raf hercules transport planes specially equipped to support special forces operations. it was reported that during the final phase of the rescue gunfire was exchanged but no casualties were sustained although there was inconsequential damage to one of the aircraft from small arms fire. on landing in the malta, the actions and success of the operation was reported by the british government and heralded as a complete success. 16 in explaining its decision to authorise such an operation the uk identified the general situation in libya as being unstable and violent giving rise to particular dangers that warranted it taking action. clearly, the government was under pressure from public opinion and the national media to do something, and to be seen to do something, to protect british nationals. however, whilst there was a general threat of violence and danger to those living in libya, whether libyan or foreign nationals, there was no greater apparent threat made to british nationals or foreign nationals as had been the case with respect to the attempted rescue/evacuation by the us of its nationals from iran 12 see above n 1. 13 ibid. 14 m evans “the evacuation” the daily telegraph (london, february 28, 2011) 5. 15 ibid. 16 leppard et al above n 1. the denning law journal 169 in the 1970s or the rescue of its nationals effected by israeli special forces in entebbe, uganda. nevertheless, from the british government‟s perspective the general instability and the very generalised threat of danger to foreign nationals as members of libyan society was a sufficient justification for sending military forces onto the sovereign territory of another state without invitation. a lack of such invitation would constitute a prima facie breach of article 2(7) of the united nations charter which prohibits a state intervening in another state‟s sovereign affairs. technically, article 2(7) only prohibits the united nations from intervening in matters within a state‟s domestic jurisdiction. 17 however, if one couples this prohibition with that contained in article 2(4) along with the customary principle of non-intervention, then a state cannot interfere in another state‟s affairs. the only exception to the position within article 2(7) is if the security council has sanctioned a state to deploy on another state‟s sovereign territory. it is notable in both the news/media reporting and government comment that no question of the lawfulness or otherwise of such an operation was seriously raised. moreover, in addition to the uk action, other states, including china, also undertook similar operations to evacuate nationals. added to this there was little or no objection by the international community or libya, suggesting a toleration of such practice despite doubts surrounding the lawfulness of these types of operations. iii. the protection of nationals abroad the concept of „protection of nationals abroad‟ has been defined as the use of force by a state to protect its nationals that are under attack, be that actual or threatened, outside of its own territory, without the consent of the state against which force is used or the authorisation of the un security council. 18 as such, any arguable right to protect nationals abroad is based on a broad construction of the right of self-defence to which all states are entitled to under international law. 19 this part examines how such a right could be constructed. it first sets out the basic mechanics of self-defence and how this particular doctrine operates under international law. it then goes on to consider how a state might construct a right to protect its nationals abroad as an extension of self-defence. finally, this part will consider the practical 17 un charter art 2, para 7. 18 the protection of nationals abroad is not provided for in charter and there exists no independent doctrine of customary international law permitting such actions. see green above note 2, p 58; and a arend and r beck international law and the use of force: beyond the un charter paradigm (london: routledge, 1993) p 94. 19 green above n 2, p 59. current commentary 170 application of such a right and examine some specific instances when states have invoked the existence of such a doctrine. it is important to note the „default position‟ that any use of force by one state against another is unlawful under the strict prohibition contained in article 2(4) of the united nations charter. 20 equally, one must also recall the combined effect of article 2(7) of the united nations charter, article 2(4) of the united nations charter and the principle of non-intervention which prohibits a state interfering within another state‟s domestic affairs. prima facie, the use of force to protect nationals abroad is in clear breach of the combined effect of the provisions set out in the preceding sentence. however, international law permits two exceptions to the cardinal rule contained in article 2(4) of the united nations charter. first, a state may act in selfdefence against a prior use of military force providing that it complies with certain criteria which have developed from customary international law and treaty law. 21 the second exception is if the united nations security council under its „chapter vii powers‟ authorises a state to use force. 22 those in favour of the doctrine of protecting nationals abroad argue that such action falls within the first exception under a more elastic interpretation of selfdefence. 23 overview of self-defence the right of self-defence under international law has attracted considerable academic scrutiny. 24 in light of that fact, this section will focus on setting out the basic conditions required for a state to invoke self-defence rather than, for example, revisiting the more contentious issues surrounding 20 un charter art 2, para 4. 21 see military and paramilitary activities in and against nicaragua (nicar v us), 1986 icj 14, ¶ 34 (june 27). 22 un charter art. 42. 23 green above n 2, p 61. although not strictly in favour of the doctrine of the protection of nationals abroad, green allows for the conceptual possibility of such a doctrine. 24 for a useful overview, see j a green and f grimal "the threat of force as an action in self-defense under international law" (2011) 44 vand j transnat'l l 285 at 298–302. for more detailed discussion see, for example, ja green the international court of justice and self-defence in international law (oxford hart publishing, 2009); dw bowett self-defence in international law (manchester: manchester university press, 1958); a constantinou the right of self-defence under customary international law and article 51 of the united nations charter (athènes bruxelles: ant n sakkoulas; bruylant, 2000); y dinstein war, aggression and self-defence (cambridge: cambridge university press, 4th edn, 2005); cd gray international law and the use of force (oxford: oxford university press, 3rd edn, 2008). the denning law journal 171 both anticipatory and pre-emptive self-defence. 25 the law governing a state‟s right to self-defence is a combination of both customary international law and charter law. 26 customary principles dictate that a state acting in self-defence must do so within the parameters of necessity and proportionality: customary law principles that have been distilled from the words of us secretary of state webster following the well known caroline incident, according to which a state invoking self-defence must: “[s]how a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation. it will be for it to show, also, that... [it] did nothing unreasonable or excessive; since the act, justified by the necessity of self-defence, must be limited by that necessity and kept clearly within it.” 27 the necessity principle dictates that a state must be left with no other nonforcible alternatives – force is to be used as a last resort. 28 proportionality simply requires the level of force used in self-defence be commensurate to the severity of the attack. 29 some commentators posit a „restrictive‟ view that the cornerstone provision contained in article 51 of the united nations charter overrides previous customary international law. 30 the vast majority of scholars however accept that the inherent customary provisions still exist and 25 on pre-emption, see generally na shah "self-defence, anticipatory self-defence and pre-emption: international law‟s response to terrorism" (2007) 12 journal of conflict security law 95 at 111; and c antonopoulos "force by armed groups as armed attack and the broadening of self-defence" (2008) 55 neth int‟l l rev 159. 26 see above n 24 generally and in particular j a green the international court of justice and self-defence in international law pp 128-138. 27 letter from daniel webster to henry s fox (apr. 24, 1841), in 29 british and foreign state papers (1841–42), 1129–39 (1857). for more detailed discussion see j a green “docking the caroline: understanding the relevance of the formula in contemporary customary international law concerning self-defense” (2006) 14 cardozo j int'l & comp l 429. 28 green „docking the caroline' ibid at 450-457. 29 see for example, j gardam necessity, proportionality and the use of force by states (cambridge: cambridge university press, 2004) p 142; and r wedgwood “proportionality and necessity in american national security decision making implementing limitations on the use of force: the doctrine of proportionality and necessity” (1992) 86 am soc'y int'l l proc 58, at 59. 30 on this debate see gray above n 24, pp 128-160. with regard to article 51 being a „cornerstone‟ provision see case concerning oil platforms (iran v us), 2003 icj 161, separate opinion of judge simma, at 328 ¶ 6 („everybody will be aware of the current crisis of the united nations system of maintenance of peace and security, of which articles 2(4) and 51 are cornerstones.‟) current commentary 172 the accepted position is that of a fusion of both customary provisions and current charter law. 31 in order for a state to invoke self-defence under article 51 of the united nations charter, it must have suffered an „armed attack‟. 32 the term „armed attack‟ is undefined in the charter but has been interpreted by the international court of justice to mean a “grave use of force”. 33 by way of summary, if a state has suffered an armed attack (a grave use of force) and complied with the two cardinal principles of necessity and proportionality then such action will be lawful under international law. does a right to protect nationals exist? the right to protect nationals abroad has been invoked on a number of occasions in the latter part of the twentieth century. 34 however it has not proved to be a common claim and in the main its invocation is confined to only a few states in that period. 35 the supporting argument in favour of the protection of nationals abroad starts with the language of article 51. supporters of the existence of this right argue that the „armed attack‟ element required for self-defence does not specifically require an armed attack against a state‟s own territory: for them an attack against the nationals of that state would suffice. 36 the assessment of what constitutes an armed attack will take into account differing factors dependent upon the nature and the context of events. as with other forms of armed attack, in order for the threshold to be met the attack against nationals would have to be „grave‟. 37 whilst a numerical measure of deaths or injuries caused to nationals might have a simplistic appeal, such an approach has been considered arbitrary. 38 however, bowett considers that there may be circumstances where a threat of danger to the nationals of a state abroad could be “great enough, or wide enough in its application, for it to be 31 ibid. 32 d greig “self-defence and the security council: what does article 51 require?” (1991) 40 international & comparative law quarterly 366. 33 military and paramilitary activities in and against nicaragua, above n 23. this statement was also reemployed in the oil platforms decision. case concerning oil platforms (iran v us), 2003 i c j 161, ¶ 51 (nov 6). see also green above n 26, pp 112 – 129; constantinou above, n 26. 34 gray above n 24, p 156. 35 ibid. 36 bowett above n 2, p 43; j a green above n 2, p 60; eichensehr above n 2, p 469 37 green above n 2, p 60. 38 bowett above n 2, p 43. the denning law journal 173 legitimately construed as an attack on the state itself.” 39 therefore the attack on a state‟s nationals is actually an attack on the state itself and therefore legitimatises its act of self-defence. it has additionally been suggested that the position of the national vis-à-vis his state is a factor to take into account when analysing the issue of whether the armed attack threshold has been met. accordingly, if a national is employed by a government in an official capacity, such as an embassy official, or a national is targeted because of their nationality and therefore „as proxies for their national government‟, 40 perhaps such a threat to a state's nationals is more easily characterised as the threat of an armed attack on the state itself. 41 detractors of this view object to such an argument on three grounds. 42 first, the language of article 51 is not elastic enough to stretch to including the concept of an attack against nationals. 43 secondly, there is insufficient state practice to support this concept. 44 finally, as with the concept of „humanitarian intervention‟ 45 , there is a palpable fear that the development of the doctrine of protecting one‟s nationals abroad would lead to abuse and be utilised for nefarious purposes. 46 however, in defence of the doctrine, it may be said that a close textual interpretation of article 51 reveals that there is no explicit or even implicit requirement that an armed attack must be against the territory of a state and not merely its nationals. 47 this perhaps requires a certain „leap of faith‟, although any action taken in self-defence would of 39 bowett above n 24, p 93. 40 eichensehr above n 2, p 469. 41 ibid, p 469. 42 for example, see generally i brownlie international law and the use of force by states (oxford: oxford university press, 1963). 43 green above n 2, p 60; and see also m iqbal and s hassan „'armed and ready'‟ (2008) 158 new law journal at 1. 44 ibid; ronzitti above n 5, p 12; arend and beck above note 18 pp 106 – 110; and j quigley “legality of the united states invasion of panama," (1990) 15 yale j int'l l 276 at 287. 45 see generally i brownlie international law and the use of force by states (oxford: oxford university press, 1963); arend and beck above n 18; dinstein above n 24; gray above n 24. for more detailed discussion, see l henkin “kosovo and the law of humanitarian intervention” (1999) 93 am j int'l l 824; j i charney “anticipatory humanitarian intervention in kosovo “ (1999) 93 am j int'l l 834; r a falk “kosovo, world order, and the future of international law" (1999) 93 am j int'l l 847. 46 green above n 2, p 60; brownlie above n 42, p 301; quigley above n 44, p 293. 47 ibid. see also a randelzhofer "article 51" in bruno simma (ed) the charter of the united nations: a commentary (oxford: oxford university press, 2002); dinstein above n 24, p 175. http://www.phrases.org.uk/meanings/vis-a-vis.html current commentary 174 course have to satisfy both the necessity and proportionality requirements set out in both charter and customary international law. 48 with regard to state practice, green takes a relatively nuanced view. 49 on occasions when states have objected to such a doctrine (entebbe, panama, grenada and south ossetia) their objection was not against the doctrine itself, but rather against the actual deployment of force. for example, objection to the us‟s incursion into both grenada and panama was based largely on the disproportionate amount of troops involved in order to secure the safety of the threatened nationals. 50 similarly, in both grenada and panama, concerns were raised that these interventions were merely a pretext for regime change. 51 that aside, those criticisms (at least in green‟s view) were not against the doctrine per se, but rather the way in which the us sought to invoke it. 52 equally, those states which objected to the „entebbe incident‟ in which israel used force to liberate its nationals who were being held hostage in uganda in 1976 were not necessarily against the doctrine per se. 53 rather, they believed that israel had not suffered an armed attack in order to invoke article 51, nor had it exhausted other forms of remedy such as negotiation which would satisfy the necessity requirement. 54 although russia‟s forcible action against georgia in 2008 would seem to be a clear abuse of the claim to protection of nationals abroad, 55 again one could argue that this was on grounds of a disproportionate response rather than the non-existence of the right to protect its nationals. green concedes that there is an understandable reason for rejecting the concept of such a doctrine on policy grounds in that it could lead to abuse. 56 however, many actions in self-defence involving a use of force could potentially have an alternative strategic goal in mind which would not necessarily preclude such a right existing in the first place. the real difficulty in advocating the protection of nationals abroad doctrine is that it requires an initial „leap of faith‟. a state has to „see the light‟ and truly believe that an armed attack on its nationals is tantamount to an armed attack on it and 48 above n 31. 49 green above n 2, p 61. 50 ibid, pp 62 – 64. 51 ibid. see also, generally, m j levitin “law of force and the force of law: grenada, the falklands, and humanitarian intervention” (1986) 27 harv int'l l j 621; and v nanda “the validity of united states inervention in panama under international law” (1990) 84 am j int'l l 494. 52 green above no 2, p 62. 53 ibid. 54 ibid. 55 see generally a nußberger “the war between russia and georgia – consequences and unresolved questions” (2009) 1 goettingen journal of international law 341. 56 green above n 2, p 63. the denning law journal 175 therefore falls within the purview of article 51. effectively, the test for determining the lawfulness of protection of nationals is a two-stage test. first, have the nationals suffered an armed attack or been threatened with one? secondly, if the answer is „yes‟ to the first stage of the test, is the response by the state both necessary and proportionate? arguably, if a state can meet both stages of the test then its action may be deemed lawful. iv. application of the law to the british action in order for the british evacuation of its nationals from libya without libyan consent to be lawful, it is necessary to consider whether the nationals had suffered an armed attack as per article 51 of the un charter and whether the british response satisfied both requirements of necessity and proportionality. 57 was the requirement of an „armed attack‟ met? in respect of the british nationals in libya no particularised threat of harm or danger materialised and certainly no actual attack on british nationals was reported. in addition to which, the nationals that were subject to the rescue were not reported to have been employed by the government in an official capacity. they were british nationals in libya in their capacity as private individuals. this is to be contrasted with the particular threats and actual attacks suffered by the nationals of the united states in the u.s. embassy siege and hostage taking in iran. 58 in respect of the us embassy hostages, they were both u.s. citizens and employed by the us government as embassy staff. when attacked, they were attacked in the grounds of the us embassy and were clearly being attacked as „an overt proxy for the us government‟ 59 therefore more readily falling within a broader characterisation of „armed attack‟. it has been noted elsewhere that the more problematic situation arises where nationals are „unaffiliated with their national state except by nationality and are seized or threatened while acting as individuals or on the behalf of their nongovernment employers. in such instances, it is less clear that an attack on an individual is intended to be a proxy attack on their national state.‟ 60 in respect of the british nationals in libya, whatever the harm or danger that was faced, it nevertheless involved private individuals and was purely a consequence of the general breakdown of civil order within libya; furthermore, it was not sufficiently „grave‟ or specific to being a british national to meet the required 57 bowett above n 24, p 96. 58 eichensehr above n 2, p 469. 59 ibid. 60 ibid. current commentary 176 threshold of constituting an „armed attack‟, even within bowett‟s conception. 61 the next factor to consider is whether the british intervention satisfied the conditions of necessity and proportionality. to begin, did the threat posed to british nationals necessitate british special forces undertaking their action? the answer would seem to be no since there was no specific threat that had been posed to british nationals other than the general dangers associated with the breakdown of civil order and the descent into civil war. furthemore, at the time of the operation there was still the possibility of evacuating british and other nationals from libya without the need to use british special forces. civilian airlines and other forms of transportation were still operating. therefore there would seem to be limited evidence of the requisite necessity for such an action to fall within the bounds of self-defence. admittedly, from the british government‟s perspective one presumes that there would have been consideration of the planned uk involvement in the nato operations that were to ensue. from this perspective a sensible pragmatic response to such a plan would be to remove one‟s nationals prior to such involvement to eliminate the likelihood of one‟s nationals eventually becoming a bargaining chip and propaganda weapon for the libyan regime. however, this in itself does not mean that the removal of british nationals was a „necessity‟ in terms of establishing the lawfulness of a purported self-defence action. did the british action meet the requirements of proportionality? the requirement of proportionality in this context means that the action taken by britain was merely confined to evacuating its nationals from libya. on the face of it the british action did not go beyond that which was necessary to achieve the goal of ensuring the protection and safe evacuation of its nationals. whilst british military personnel apparently did travel extensively throughout libya to secure the safety of british nationals and provide for their evacuation, this was completed without any reported use of force. furthermore, the british action did not apparently involve any ulterior motivation or intent, and it may be contrasted for example with the us interventions in grenada and panama and the russian intervention in georgia. 62 the british action could perhaps, therefore, be considered as complying with the proportionality requirement . overall, then, we would argue that the intervention by british forces was not in response to an armed attack and was not „necessary‟, albeit that it was apparently proportionate. nonetheless, due to the restricted effect of the british special forces operation in libya, ie its confinement to evacuation of british and other foreign nationals, the british action seems to have been tolerated as a practical response to dangerous events unfolding in libya. this 61 see bowett above n 24, p 93. 62 see part iii. the denning law journal 177 tolerant approach stems in part from the fact that the operation gave rise to no objection from the international community at large and, in particular, the libyan government. furthermore, in its analysis and discussion of events the british government gave no reported consideration to the question of the lawfulness of its operation. in addition to which, in as much as the doctrine of protection of nationals abroad is an aspect of a state‟s inherent right to selfdefence, the intervention was not reported to the united nations security council by britain (such a report would be required for self-defence under article 51 of the un charter). v. conclusion the british action in libya in late february 2011, and other comparable instances of state practice, do not add anything to any purported shift in the legal paradigm concerning the protection of nationals abroad in as much as they are considered as uncontroversial and pragmatic responses to such extreme circumstances. today, governments are generally expected to provide more extensive protection and assistance to their nationals when they are exposed to danger/threat of even a very general and non-specific kind – ie not a specific threat to nationals of a particular state as for example in iran (v us citizens) or entebbe (v israeli). however, in so far as a state merely effects an evacuation short of armed intervention – such actions seem to be „tolerated‟ without having legal „effect‟. therefore such action does not constitute state practice for the purpose of a developing right under customary international law. action such as the uk‟s is tolerated due to the precise and limited objective of extraction, but the toleration does not equate to the necessary intention by the majority of states that the doctrine develop as a customary right. from a practical perspective one suggestion as to why states tolerate rescue missions on their territory is that such actions help to diffuse potentially difficult situations. there is perhaps a fear that if foreign nationals remain on their territory, the „parent‟ state may become more involved in their domestic affairs than would be desirable: tolerating instances of evacuation amounts to the lesser of two evils. unincorporated associations: property holding, charitable purposes and dissolution denning law journal 2014 vol 26 pp 46 61 the story of rape: wrongdoing and the emotional imagination bob watt∗ introduction this is a response to john gardner’s article – “the wrongness of rape”.1 it claims that gardner is fundamentally or radically wrong; not by attacking his careful and well-constructed argument from the “inside” – by attempting to demonstrate some logical flaw in his argument – but by attacking his world-view. he shows us a world which simply does not accord with reality as perceived in our everyday lives by most, or all, of us. whilst many philosophers, and certainly most philosophers of law, analyse the world in the way exemplified by gardner, it is to be hoped that they reserve this analysis to their professional lives and do not make the mistake of thinking that it is connected with reality. for them reason prevails with emotion being relegated to the status of a mere “epiphenomenon”; whilst, for most of us, our emotional life is at least as important as our rational life. this article is an invitation to gardner and others to make a “paradigm shift” in the sense proposed by thomas kuhn.2 kuhn, in his explanation of the history of cosmology, showed how in order to explain the observed motion of the planets increasingly complicated systems of circular orbits were used (consisting of cycles, epicycles, epi-epicycles and so forth). these complex systems of orbits were used to explain the motion of the planets round the sun because people refused to believe that the planets could move in anything other than perfect circles. however, as the observational data grew, it became clear that no system of circular orbits, no matter how complex, could explain the observations. when johannes kepler advanced the work of nicolas copernicus, tycho brahe and galileo galilei and showed that the orbit of mars could be best modelled by showing that it was elliptical, the ∗ professor of law, university of buckingham, hunter st, buckingham mk18 1eg. i am grateful to the anonymous reviewer, and to professor roy j levin for clarification of the purposes of his research. i retain full responsibility for the opinions expressed in this article and for any and all errors. 1 herein references are to john gardner, ‘the wrongness of rape’ in john gardner, offences and defences: selected essays in the philosophy of criminal law (oup 2006). the original article was written by john gardner and stephen shute; original bibliographic details are to be found in offences and defences. 2 thomas kuhn, the structure of scientific revolutions (u chic p 1962). 46 the denning law journal problem was solved. similarly, it is averred that no system of purely rational explanation, such as that advanced by gardner, can explain the wrongness of rape. the explanation needs to start from a different position by explicitly including emotion in the explanation. gardner’s relegation of emotion to a mere “epiphenomenon” (perhaps the prefix is telling) by trying to convince us that our emotional reaction to rape stems from its wrongness “as the mere use of a person” is unconvincing. the thrust of gardner’s argument is kantian. it may be summarised by saying we rationally assess rape as wrong because it involves the sheer use of a person for another’s end (that of the rapist) and sheer use violates the categorical imperative.3 daniel statman, in his short article criticising gardner’s analysis,4 points out that it is possible to “use” a person’s body in a number of ways which do not involve sex and claims that gardner’s theory of rape is incomplete because it fails to give an account of why using a person is so much worse when that use is associated with sex.5 statman gives an example of a medical student making use of a person’s body by creeping into her room whilst she is unconscious and examining her facial structure to revise for his examination. we might consider a dental student who crept in to examine a sleeping patient’s teeth in the same way. we would consider the dental student to be at moral fault, for putting gloved hands and dental instruments in a person’s mouth without their consent is reprehensible, but we would not consider him to be as evil as the man who crept in and raped his sleeping victim by oral penetration.6 we trust that the relevant competent professional bodies would not allow our trainee dentist to enter practice, but we would not expect the wrongdoers to be liable to life imprisonment under s 1 of the sexual offences act 2003 for the simple reason that it is not a sexual offence. it was a simple non-sexual assault and should be punished as such. the reason that rape is so much worse is purely and simply because of the emotional significance of sexual activity. we do not think of coition as a colourless act; coition is often called “making love” because of the central importance of love in our lives. it 3 an alternative account of the wrongness of rape is to be found in john stanton-ife, ‘horrific crimes’ in ra duff and others (eds), the boundaries of the criminal law (oup 2010). stanton-ife’s account claims that the wrongness of rape is to be found, not in a kantian account (or as a transgression of the millian harm principle), but as a transgression of the boundary which allows the victim to define herself as a person. the nature of that boundary is, it is judged, emotional and accordingly the account in this article equally answers stanton-ife’s points. 4 daniel statman, ‘gardner on the wrongness of rape’ (2012) 4 jrslm rev leg stud 105, 10. 5 ibid 109. 6 see sexual offences act 2003, s 1(a). 47 the story of rape: wrongdoing and the emotional imagination is here asserted, and the argument will be developed, that the epitome of human sexuality – the ideal or standard against which every sexual act is measured – is lovemaking and rape is, of course, the negation of lovemaking and it is thus an emotional crime. it is this point which must be explored and explained. 1. the story of rape gardner tells us a story about “pure rape” – a story which, as he may intend, offends and revolts us, and fills us with compassion for the victim. gardner may, on the other hand, say that he simply wants to fill us with a sense of having observed wrongdoing and wants to provoke our rational outrage. this will not do, we simply are not like that. the point is explored below. in gardner’s story his victim is raped whilst she is asleep; the rapist leaves no trace and he is killed immediately he has left her house. she is not harmed in any discernable way by the violation itself.7 the malefactor has been killed upon his exit, thankfully depriving him of the opportunity to, for example, publicly boast of his crime, or taunt his victim.8 boasting or taunting would, of course, give rise to direct or indirect harms.9 gardner’s story is effective but his analysis leaves out two important factors. the first exclusion is, of course, deliberate and central to his argument and is conceded here for, like gardner, we are only interested in the wrongness of rape not in its harmfulness. gardner excludes in “pure rape” any possibility of harm to the victim and so he has no need to analyse the issue. however this does not close the issue of “harmless rape”, but we must first introduce the second, more important, omission. the second exclusion from gardner’s analysis is less obvious, but it is of the utmost importance. it is the partial exclusion of the reader; the fly on the wall asked to observe these events and to apply his/her moral evaluation to them. leaving aside whether the reader may be a source of direct harm (“do 7 whilst the victims were fully aware of the activities of anigbugu and hyung woo pyo, there are some common features between gardner’s hypothetical rape and the real rapes discussed in attorney-general’s references (no 73, 75 of 2010, and 03 of 2011) (michael anigbugu and others) [2011] ewca crim 633. the differences, relating to the women’s knowledge of the offence, relate to the harms done. if there is any possible doubt about the harm occasioned by rape, this report is more than sufficient to dispel it. 8 gardner (n 1) 5; sets out the hypothetical harmless rape. 9 for another fictional account of ‘sleep -rape’ (here induced by a drug) see alison greaves, 2022 (saverge 2012) ch 27 and the emotional effect upon the victim of its later boastful disclosure in ch 34. 48 the denning law journal you know what that evil man did to you?”), or indirect harm such as gossiping leading to the loss of her reputation,10 the presence of the reader brings the entire analysis down. gardner has not, of course, wholly excluded his readers; but he has placed them in a hopelessly narrow class; one might describe them as “the philosophy dons on the x5”.11 his readers are implicitly required to step inside his analysis and to abandon the normal human responses felt when a person is confronted with a story of rape. we feel empathy with gardner’s hypothetical victim. as soon as we read of her plight our mind spills away uncontrolled. “will she find out? what will happen when she finds out? what will she feel when she finds out?” we feel disgust, we feel outrage and we inwardly shudder for the victim. a possible answer to this rush of emotion would undoubtedly be to say “there, there, dear, dear, don’t worry yourself over this. your emotions are just epiphenomena and, if you just calm down, you will see that you are rationally outraged by the wrongdoing and your emotional response is just empty sounding off.” the problem with this view is that it treats much of our personalities as a mere sideshow – a source of amusement or annoyance – whilst our rational minds get on with the (supposedly) important business of running the show. we therefore need to rehabilitate emotion and bring it back to its rightful place as a vital part of the human personality. 2. the rehabilitation of emotion the suppression of emotion is often pathological. jonathan glover has shown us how totalitarians suppress emotion in order to ensure that their operatives (paramilitaries, the “security services”, concentration camp guards and so forth) are able to perform their murderous functions.12 when emotional breakthrough occurred and the operatives realised the monstrosity of their actions they became unable to function. glover cites, for example, circumstances in which the physical and psychological distance between guards and prisoners was diminished and concentration camp guards were unable to send women and children to the gas chambers.13 glover also points 10 apparently a raped woman suffers loss of reputation see youssoupoff v mgm pictures (1934) 50 tlr 581. 11 ‘the man on the clapham omnibus’ is a shorthand for the ordinary reasonable person apparently introduced by greer lj in hall v brooklands auto racing club [1933] 1 kb 205 (ca). the point is that gardner’s readers do not appear to be ordinary. the x5 is a coach which covers the route between oxford and cambridge, perhaps it is used by philosophy dons. 12 see jonathan glover, humanity: a moral history of the twentieth century (pimlico 2001). in particular see ch 35 ‘the attack on humanity’. 13 ibid 346-7. 49 the story of rape: wrongdoing and the emotional imagination out how in circumstances as diverse as the bombing of cambodia in the late 1960s, the (in)famous milgram experiment, and the cuban missile crisis how an emotional appreciation of the situation did or could restrain people from committing savagery – where “emotional responses to the possible victims came alive”14 the aggressor stopped. our emotional understanding of a possible victim’s situation acts as a powerful inhibitor upon our aggressive action. we judge the victim of rape by putting ourselves in her emotional position and feel compassion. we understand victims, whether of rape or, as in glover’s examples, by our emotional reaction, not by reason alone. the sceptic here might say, “no we don’t torture people, murder them or rape them for purely prudential reasons. we do not want to be caught, we care what other people say about us, we do not want to invite retaliation.” these are all acceptable prudential reasons and are plainly reasons for (in)action. alternatively we may start from gardner’s position that these actions are wrong because, for example, they amount to the use of a person for our own ends and we rationally eschew wrongful action. both of these objections appear to be valid. how can we answer them? even when we are not dealing with the pathological suppression of emotion, it is abnormal to ignore our feelings. it is akin to cutting off half of our personality. how can we illustrate and understand this point? at this point gardner’s own storytelling device becomes useful. suppose that we look at stories of rape. if we deal with stories we may isolate our reaction and thus exclude prudential reasons against transgression. we may, of course still take gardner’s view that the reason we feel ill after considering the stories is that we have judged the action to be wrongful and are feeling the effects of the epiphenomenon. this is doubted, but in order to consider the counterclaim we need to consider some stories of rape. it is possible that the most vivid and disturbing images of rape in mainstream film or theatre stop short of showing the actual penetration of the victim, but they are singled out by their emotional intensity. the rape of irene forsyte by her husband soames graphically portrayed in the 1967 bbc television adaptation of john galsworthy’s the forsyte saga was described in nyree dawn porter’s obituary in the following terms: “the scene in which soames forsyte enforces his conjugal rights by raping irene remains one of the most shocking episodes in television drama. at the time it was broadcast, it provoked a national debate about violence within marriage. ‘it was staggering how seriously it 14 ibid 408. 50 the denning law journal was taken,’ nyree dawn porter recalled. ‘politicians had televised discussions on whether soames was right to rape his wife.’”15 thus a fictional, at two removes, account of rape has the potential to raise strong emotional reactions even where actual penetration is shown, the horrible effect can be intensified by the emotional setting. this occurs in the film a clockwork orange.16 it is judged that the conjunction of the romantic lyric from the hollywood film singing in the rain17 amidst the physical and sexual violence of alex and his droogs’ invasion of home intensifies the emotional impact.18 the method of gaining entry to home, by playing upon the sympathy of the inhabitants for a person supposedly lying injured outside, the use of comedy masks, and most importantly the use of “singing in the rain” together with the parody of dancing which amounts to that which glover calls “a cold joke”19 shows how a story can evoke a strong emotional reaction. now the scene has been set we need to perform some more rigorous analysis. bruno bettelheim points out that our highest achievement, or the attainment of psychological maturity, is the finding of meaning in our lives. he explains that wisdom (the understanding of what the meaning of one’s life may, or ought, to be) does not suddenly spring upon us, but is built up “small step by small step”.20 whilst the purpose of his book the uses of enchantment: the meaning and importance of fairy tales explains the role of folk or fairy tales in the growth of children to psychological maturity, it is clear that since people do not live on fairy tales alone, that other sorts of story have an important place in building up an idea of “who do i want to be 15 see the obituary in the daily telegraph of 12 april 2001, some 35 years after the first televising of the event. this is available at: ‘nyree dawn porter’ the telegraph (london, 12 april 2001) <http://www.telegraph.co.uk/news/obituaries/1315823/nyree-dawn-porter.html> accessed 11 july 2014. 16 ‘a clockwork orange singin in the rain (break-in scene)’ (11 june 2008) <http://www.myvideo.de/watch/4409466/a_clockwork_orange_singin_in_the_rain_ break_in_scene> accessed 11 july 2014. 17 <http://www.youtube.com/watch?v=d1zyhvpdxbq> accessed 11 july 2014. 18 this point about the effectiveness of music as an emotional intensifier is made later in the story where alex is inadvertently conditioned to be repulsed by music (including his favourite ode to joy from the final movement of beethoven’s 9th symphony) as he is conditioned by the ludovico technique to refrain from violence. 19 glover (n 12) 36-7. further examples are set out throughout the book. 20 bruno bettelheim, the uses of enchantment: the meaning and importance of fairy tales, (first published 1975, penguin 1991) 1. 51 http://www.youtube.com/watch?v=d1zyhvpdxbq the story of rape: wrongdoing and the emotional imagination like?”21 a story is an emotional rehearsal or an armchair walk-through of a situation. soames forsyte, and alex and the malchiki serve a purpose useful to us in building up a picture of what it is like to be a rapist and affirming to us, as empathic beings who are hurt by another’s pain, that we certainly do not want to be like them. thus when we hear even the word “rape” we, or at least those of us who are not rapists, immediately think of pain, degradation and suffering. we wish to have no part of it. in a sense the ludovico technique applied to alex in a clockwork orange is an artificial and brutal extension of that which occurs naturally in a person. alex was forced to watch violent and sadistic films after being injected with drugs to produce nausea and physical revulsion; after repeated exposure to the combination he became conditioned and was revolted by such behaviour despite the fact that, in his earlier life, he had revelled in ultra-violence, the use of the bolshy kickboot and “the old inout” (ie rape). most of us build up such revulsion naturally. feeling (at the very least) queasy is, for most people, a natural reaction to stories of rape. in his work on fairy tales bettelheim points out that, whilst in reality people are good and bad at the same time, fairy tales do not demonstrate this ambiguity so that children may more easily learn to tell the difference between good and bad character.22 tales for adults are, of course, much richer in moral complexity because we have a much more supple moral imagination; we are able to appreciate that even alex is not wholly and irredeemably bad. a clockwork orange facilitates our mental exploration of some difficult themes just as gardner’s story of the harmless rape and, it is hoped, the stories herein allow us to explore wrongness from the comfort (for everyone) of our chairs. 3. some stories of sex assuming that the claim regarding the importance of stories as means for exploring not only the rational consequences of an action (the traditional philosophers’ “thought experiment”) but also the emotional effect of an event or series of events is broadly correct; here we are going to consider some stories of sexual intercourse. since we are dealing with an emotional subject readers may find that the stories and the analysis are more explicit and deal more openly with sexual matters than is common in legal or philosophical analysis. this cannot be avoided when one deals with sexual crime. gardner himself averts to this fact when he suggests that such analysis may be 21 ibid 10. 22 ibid 9. 52 the denning law journal “philosophically uncomfortable, not to say, unsafe”.23 this cannot be correct, thought cannot and should not avoid discomfort; the whole purpose of academic freedom is to discuss the uncomfortable and the “unsafe”. the stories are based upon gardner’s original story. to facilitate writing and reading, let us call the woman “mary” and the two men with whom, in various circumstances she has intercourse “john1” and “john2”. in the variations to this story john1 and john2 engage in other activities; but let us accept that they are the same johns as in the first stories, but they have not had the prior experiences. the important thing to note is that the johns vary in one important characteristic perceived by mary. since some of the facts are common to the stories we can reduce them to two tales by using the contraction john1/2 for the two men. once we have set out the stories we can draw out the essential distinctions between john1 and john 2. a consideration of these stories will demonstrate the wrongness of rape and will show that the root of its wrongfulness is to be assessed by the emotional content of the stories. the presence of the necessarily empathic “fly on the wall” (the real emotional human being) is crucial to our understanding of wrongness. a. john1/2 enters mary’s bedroom after she has taken a sedative which has the side effect of facilitating intercourse. donning a condom he has intercourse with mary and leaves. he is killed by a passing bus. b. counterfactually john 1/2 who, for some reason, has intimate knowledge of mary’s body and the inside of her house writes a tale on his tablet detailing his entry into mary’s bedroom whilst she is asleep and his intercourse with her in explicit detail. the tale is wholly fictional, but his knowledge of her house and anatomy makes it entirely plausible. on his way to read the tale to her he is killed by a passing bus and his tablet destroyed. john1 is a tradesman whom mary has met at the swimming baths whilst dressed only in her skimpy bikini. she needs some maintenance work done on the radiator in her bedroom. she engages john1 to perform the work. this knowledge is sufficient to allow john1 to enter mary’s house whilst she is asleep and to describe her bedroom and her body in sufficient detail to accomplish the projects set out in story a and story b. if john1 had asked mary to have intercourse with him she would have angrily refused. this explains story a – john1 raped mary. in our story b if john1 were to read his tale to mary, she would believe that she had been raped and would suffer all of the emotional harms 23 gardner (n 1) 2. 53 the story of rape: wrongdoing and the emotional imagination experienced by women who had been raped. story b is analogous to gardner’s story of the “harmless” or “pure” rape. the rapist’s victim in gardner’s story has not come to any physical harm (physical trauma, pregnancy, sexually transmitted infection); the only possible harm she could have suffered is the horror of being raped. however just as we know that gardner’s harmless rape was a story of wrongdoing, we are equally certain that john1’s threat to read the story of mary’s rape to her is equally wrong. we are relieved that john1 was thwarted. john2 is mary’s regular lover. she enjoys making love with john2; they have sex regularly and are contemplating marriage or some other long-term commitment. the events set out in story a were initiated by mary; she is entranced by the fairy story the sleeping beauty24 and wishes to have john2 make love to her whilst she is asleep. however it is here that story b really comes into its own. say that john2 and mary explain to our observer that mary would find the tale erotic and that mary wished to have john2 read her the tale as a prelude to making love. whilst we may think that mary and john are slightly “kinky”, we must accept that people do have fantasies about sex. certainly one can find sexual fantasy all the way from gilgamesh25 to the meretricious (in both senses of the word) fifty shades of grey.26 this includes fantasies of domination and indeed use. the point of “use” is important for gardner is claiming it is the “use” of another person which constitutes the wrong, mary wants to be “used” in a controlled sense by john2 so that she feels no responsibility for that which has happened,27 whilst she would recoil in horror (and, incidentally, be harmed if she knew what john1 had done, or was planning). in some senses then, “being 24 see, eg, bettelheim (n 20) 225. 25 nk sandars (tr), the epic of gilgamesh (penguin 1971). see, in particular, the story of enkidu and shamhat. 26 el james, fifty shades of grey (vintage 2011). notwithstanding the plodding nature of the plot and the weak characterisation the book is a best–seller. this appears to be a popular genre of fiction for the category of ‘erotica’ within the fiction index of the popular bookseller amazon uk, which seems to contain over forty thousand entries; website accessed 11 july 2014. 27 this point about rape or use fantasies is powerfully made by nancy friday in her my secret garden (virago 1976) 108-109. friday points out that some women fantasise (and the point that it is a fantasy cannot be too strongly emphasised) about rape as a mechanism for losing control and evading responsibility. friday points out, in the strongest terms, that none of the women she interviewed would want to be raped in reality. 54 the denning law journal used” is not wrongful. perhaps all sexual activity is, in some ways “being used”,28 and it is the emotional context of that “use” which is important. one can see the story of use in pauline réage’s l’histoire d’o.29 here, in a story written by a woman,30 a fictional heroine voluntarily submits to sexual slavery. similarly in captive of gor,31 a woman who is reduced to sexual slavery by extra-terrestrial kidnappers goes on to embrace her state of captivity,32 and comes to believe that she was chosen for slavery because of her psychological make-up. in both of these stories, it is the woman’s voluntary, subjection to some form of slavery which she then turns around to enslave, in a psychological sense, her enslaver.33 28 the text which comes to mind as a poetic rendition of this fact is juliet’s opening soliloquy from act 3 scene 2 of romeo and juliet, especially lines 12-16. 29 pauline réage (pseudonym), l’histoire d’o (corgi 1972). 30 the precise identity of the author remains controversial. one view is that the author was dominique aury. see geraldine bedell, ‘i wrote the story of o’ the guardian (london, 25 july 2004) <http://www.theguardian.com/books/2004/jul/25/fiction.features3> accessed 11 july 2014. it is also claimed that dominique aury is a further pseudonym for anne desclos, see ‘story of o: all about story of o, the french erotic novel by pauline reage’ (1 january 2011) <http://www.storyofo.info/index.html> accessed 11 july 2014. it is clear that there are some differences between the book and just jaeckin’s cinematic rendition of the story but both highlight the emotional condition of o; possibly the emotional intensity of the film is increased by pierre bachelet’s atmospheric score. even alternative musical arrangements of bachelet’s theme have a strong emotional effect – for example ramachandra borcar’s (pseudonym ramasutra) rendition on his 1999 album the east infection. 31 john norman (pseudonym) the captive of gor (e-reads 1972). john norman is, in reality, the philosopher john f lange. norman’s emphasis on the emotional state of his heroine as set out in the opening passage of the book accord with the emphasis on emotion displayed by the author of l’histoire d’o. 32 it is instructive to consider the view of robert nozick on slavery here. nozick argues in anarchy, state and utopia (basic books 1974) 331, that a person may rightfully sell themselves into slavery. could someone willingly become a ‘sex-slave’ and derive fulfilment from that status? one message from l’histoire d’o, the gorean sagas or nancy friday might be ‘yes, but only as a matter of fantasy.’ lange has been interviewed on this matter; see charlie jane anders, ‘john norman, the philosophy professor who created the barbaric world of gor’ (22 march 2011) <http://io9.com/5783833/john-norman-the-philosopher-who-created-the-barbaricworld-of-gor> accessed 11 july 2014. readers may care to heed gardner’s warning at gardner (n 1), text associated with (n 23). 33 in just jaeckin’s film the story of o, o and her master, sir stefan (or stephen – it is unclear) fall in love. in the final scene o brands sir stefan (as she has been branded) with her initial using a lighted cigar. in captive of gor, the heroine’s captor 55 the story of rape: wrongdoing and the emotional imagination the importance of the stories of “o” and “eleanor (or elinor) brinton” (the captive of gor) is not that people should be enslaved or that slavery should be seen as an acceptable mode of life but that the books should be seen purely as fantasy – as, in the sense described above and by bettelheim, – fairy tales. that is to say ways of exploring the emotion of situations. bettelheim has pointed out that in fairy tales intended for children, good and evil characters are sharply distinguished and polarised; fairies are either wholly good or wholly evil.34 should we be surprised that in fantasies designed for adults the characters are more like ourselves – somewhat ambiguous? they are ways in which we can explore the emotional significance and meaning of being used. as we have seen we can observe the way in which this is emotionally satisfying even if we find it slightly odd. however, the reader or the person in the jury box, our arbiter of morality whom gardner has omitted from his story, can readily tell the difference between story b’s john1 and john2, as surely as s/he can see the difference between the johns in story a. how can these tales be theorized and brought to bear on an analysis of the wrongness of rape? 4. meaning, emotion and empathy here is one explanation. perhaps it is a little colourful, no apology is offered because the explanation itself illustrates an important point. words are creatures of reason; they may not be best suited to an explanation of emotion. as gardner himself points out the experience of rape may be better expressed by means of “drama, poetry, sculpture, and other more purely expressive ... media”.35 it may be that which is required of the reader is to “grok” the concepts expressed.36 a more measured explanation which refers to the philosophical, psychological and scientific literature follows. it is our common experience that sexual intercourse is the most highly emotionally coloured of our everyday actions. the culmination of intercourse – orgasm – has been studied at a physiological level and a working definition who has boasted that he never pays for a woman but always captures them, recaptures elinor from a rival and, having made good his escape, voluntarily pays her price. 34 see bettelheim (n 20) 9. 35 gardner (n 1) 2. 36 ‘grok’ is the ugly (fictional) martian word introduced by robert a heinlein in stranger in a strange land (hodder & stoughton 1961). it’s meaning is explained as ‘to understand intuitively or by empathy’. see the entry in the shorter oxford english dictionary (5th edn, oup 2002). the present author’s assertion is that we do not need fictional martians in order to understand intuitively or empathically; it is a fundamental human faculty. 56 the denning law journal containing a number of elements common to both males and females has been agreed: “an orgasm in the human … is a variable, transient peak sensation of intense pleasure creating an altered state of consciousness usually accompanied by involuntary rhythmic contractions of the pelvic striated … musculature, often with concomitant … contractions and myotonia … ending usually with feelings of … well-being and contentment”37 indeed. by a similar measure the mona lisa is the arrangement of pigment on canvas, david is a carved piece of marble, im abendrot or the concierto de aranjuez are just collections of sounds, and to his coy mistress and the ecstacy are just words. we simply do not understand intercourse, still less making love or rape, or any of these works of art by simple, or even complex, rational explanations. no doubt an art historian could place michelangelo’s masterpiece precisely in terms of its time and significance in the art of europe and the world, but that would not be the point. marvell and donne, whatever their honoured place in literature, do not speak only to our rational minds; we understand them more fully on an emotional level. marvell is particularly powerful in to his coy mistress where he calls to mind the power of love over death or is it death over love? his poem does not affect us solely or mainly at the level of reason. for that we would need complex statistical evidence relating the ages at which people retire from sexual intercourse, a description of the inactivity of corpses and the process of bodily decay after burial. marvell’s words, and the emotions they inspire, have much more impact. similarly we can make love without thinking of the “pelvic striated musculature” and probably do so without considering their “involuntary rhythmic contractions”. it is suggested that few of us would choose to make love with a person whose attention was fixed on the contractions of their muscles. 37 roy j levin, ‘the physiology of orgasm’ in john p mulhall and others (eds), cancer and sexual health (springer 2011) 36. this author’s ellipses within the text indicate the omission of gender-specific effects, such as the ejaculation of semen. levin makes the point, in a personal communication, that the purpose of his research is therapeutic and the reductionism (of which the author may seem to accuse him) is not meant to diminish the significance of emotion in making love. that is not the author’s point, and no criticism of levin is intended. even when we are able to provide a molecular account of love (or other emotions) we will still understand them best by raw submersion in their effects rather than by titrating some neurotransmitter. the author feels (or groks) that levin acted kindly in providing explanation of his work in a way which subsumes whatever neural connections are made in his brain. 57 the story of rape: wrongdoing and the emotional imagination our emotional engagement with mary’s situation depends upon our correct perception of the situation. either she is being raped and we feel revulsion or she is engaged in some slightly kinky sex game and, whilst we may not wholly approve of the antics of john2 and mary, we are likely to feel happy for them. assuming that we have some sexual experience, and thus know about the “variable transient peak sensation of intense pleasure creating an altered state of consciousness”, and the “feelings of well-being and contentment”, we might well like to think of an alternative story in which john2 safely arrives at mary’s house, reads her the (fictional) story and then they make love. as the stories have shown we may “slide” up and down the scale of acceptability by considering our emotional reaction to mary’s treatment. at one end of the spectrum we experience a mixture of nausea, outrage, revulsion and sympathy for mary when we consider that she has been raped (or believes herself to have been raped); whilst at the other we feel a warm glow and hope that john2 and mary will find lasting love. perhaps this emotional state is related to the feelings of well-being and contentment we experience after intercourse; the important point being that these feelings are mutually induced by the shared activity of lovemaking and we measure another’s experience by our own, real or imagined, emotional standard.38 it cannot be doubted that emotional engagement is constitutive of lovemaking (as opposed to, say, paid-for prostitution) and, if we are engaged by a story, whether as a reader of fiction or because we are hearing it from the jury-box, we put out our “emotional tentacles” to make contact with the person we are hearing. whilst in the jury-box we have the added complication of ascertaining whether the victim is telling the whole truth and nothing but the truth about her experience; we weigh the experience of rape in general (as opposed to a particular instance) in emotional scales. gardner’s article is about the wrongness of rape as a phenomenon rather than about the forensic analysis of a particular incident and here we are engaged in a similar enterprise. we are not concerned with mary’s rape or her lovemaking, we are concerned whether rape is wrong and why it is wrong. we are “reaching out to” or “becoming part of” the community of rape victims or lovemakers through exercising our empathy or emotional imagination – to use heinlein’s ugly neologism for something which is well-understood by us as humans “grokking”. whilst the emotional space occupied by those making love is, without doubt, the easiest to reach for most of us, we have all experienced 38 see eg, jakob eklund, teresia andersson-straberg and eric m hansen, ‘“i’ve also experienced loss and fear”: effects of prior similar experience on empathy’ (2009) 50 scand j psychology 65. 58 the denning law journal intense emotional pain at some time in our lives and we can imagine (even if dimly) that pain sliding over into the emotional experience of rape.39 we now turn to a more orthodox explanation of the position. the general theme of the analysis herein is based on david hume’s assertion that reason is the slave of the quiet passions.40 this is taken to mean that our first evaluation of an occurrence, such as rape, is emotional rather than rational. however hume wrote this in the eighteenth century and one might say simply that hume is entitled to his opinion, which is fully consistent with the remainder of his philosophical works and in the same way gardner is entitled to his view. it is certainly not sufficient to found a successful radical challenge to gardner’s work. the gardnerian / kantian would simply say that the author has provided an alternative (and erroneous) view. some support for this alternative view is given by the work of michael stocker and elizabeth hegeman in valuing emotions where they further articulate the view that emotions are central to human personality and often provide the foundation of value.41 they opine that emotion is fundamental. however, if hume is correctly taken as suggesting that at the bottom of our thought emotion and reason are so deeply entwined such that he merely thinks that passion is prior to reason because reason itself does not and cannot act as a motivating power, we are left in a position where we simply have to arbitrarily choose between emotion and reason. to clarify: the gardnerian would say rape is wrong because using another person as a means to an end is wrong and we react emotionally to the wrongness. a person taking the position set out here would simply say rape is wrong – it is horrifying, disgusting, vile, on a visceral, emotional level – it freezes our hearts. one might even say that reason is the true epiphenomenon what we would need to be able to decide between these two positions is some means of showing that a person could, in some circumstances, reason out a course of action but, because of some defect of emotion, could not act upon it. such a person would conclude that rape was an egregious example of using a person to one’s own end (sheer use) and that if this action was universalised everyone would be used as a means and there would be no “kingdom of ends” … and then go on to question – what would be wrong with that? there is some evidence that people of this sort do exist. this is 39 we could even, if we wished, share the emotional world of alex delarge or john1, but it is to be hoped that we lack the emotional repertoire. if the interpretation of bettelheim is correct we have decided that we do not want to be the kind of person who rapes another. 40 david hume, a treatise of human nature (first published 1738, oup 1978). see book 2 section iii subsection iii ‘of the influencing motives of the will’. 41 michael stocker and elizabeth hegeman, valuing emotions (cup 1996). 59 the story of rape: wrongdoing and the emotional imagination illustrated by the work of antonio damasio whose work in experimental psychology demonstrates the importance of emotion in action.42 damasio examines the lives of two people afflicted by brain lesions in the part of the brain which produces emotional behaviour.43 damasio’s examples – gage and elliot44 – are able to perform extremely complex rational tasks and formulate rational plans of action which, because of their inability to act emotionally they are unable to evaluate and put into action. elliot, in particular, continued to reason himself into situations which required meticulous planning only to be unable to decide how to act. this type of injury seems to illustrate the truth of hume’s hypothesis that emotions are the driving force of human personality. however it does not seem necessary to go quite this length to illustrate the fact that people manage to reason themselves into positions which are emotionally repellent. 5. conclusion the argument in this article is that, far from emotions being epiphenomena which follow on behind our rational assessment that rape is wrong because it is a sheer use of another person, emotions are right at the forefront of our assessment of wrongdoing. even though the story of rape which gardner recounts is one in which harm is expressly precluded, feelings of disgust and outrage are still evoked in the reader. we find the act of rape vile. however if we retain the element of sexual use, but place it in circumstances in which the person wants to be sexually used, we can reverse the entire sense of the story and, even though we might find it rather kinky we can empathise with our lovers. it is helpful to summarise the main differences between the positions, as they are understood by the present writer, taken by gardner, statman, stanton-ife and the writer. gardner’s position is that rape is wrong because it is an example of the sheer use of a person. our emotional reactions to rape stem from its wrongfulness. statman observes that there are gradations of “sheer use” and that gardner’s account fails to explain why rape is any worse than, eg, a secretive and unwanted oral examination. he points out that sexual behaviour is at the root of the distinctive repulsiveness of rape. 42 antonio r damasio, descartes’ error: emotion, reason and the human brain (avon 1995). 43 as is clear from the title, part of damasio’s work consists of an attack upon cartesian dualism, damasio shows that the mind has a physical cause and existence the brain. 44 see damasio (n 42). in particular part one of the book. 60 the denning law journal stanton-ife points out that rape (and other crimes) are destructive of personality itself rather than simply the use of a person. the present author argues that our emotional evaluation of an act is fundamental to our understanding of it. as observers we react differently to stories of people being happily used or abused. key to our evaluation of this use or abuse is our emotional empathy: we feel warm or sick. the wrongness of rape stems from our natural emotional nausea and from there we proceed to label it as wrong. we may subsequently adopt a variety of accounts to rationalise our feelings gardner’s is but one well-articulated example. the idea that the earth (or, in later cosmologies, the sun) was the centre of the universe perfectly circled by the planets comes from a time in which the laws of the universe, both physical and human, were thought to have been ordained by a god. this god’s laws were, of course, wholly rational and perfect. now we know otherwise, it may be time to accept that the irrationality of emotion is sufficient foundation for identifying some kinds of wrong. it is possible that we could trace the origin of the wrongness in those crimes which we identify as mala in se to no more than those things which we find to be emotionally repellent. this conclusion may be surprising to some because since early times philosophers have held the view that reason is the highest form of thought; perhaps it is now time to trust our unique emotional nature a great deal more. 61 introduction 1. the story of rape 2. the rehabilitation of emotion 3. some stories of sex 4. meaning, emotion and empathy 5. conclusion unincorporated associations: property holding, charitable purposes and dissolution 197 denning law journal 2013 vol 25 pp 197 209 case commentary prosecuting president al bashir, and the short arm of justice prosecutor v omar hassan ahmad al bashir 1 suzanne bullock 1. introduction in this decision the pre-trial chamber of the international criminal court (icc) condemned malawi, as a member state of the icc, for the failure to comply with the request to arrest and surrender the president of sudan, omar al bashir. significantly, the chamber determined that the traditionally sacrosanct concept of immunity of heads of state no longer applied before an international court or tribunal. whilst the intention to create universal jurisdiction over perpetrators of war crimes and crimes against humanity is extremely laudable, the legal reasoning by the chamber is regrettably unsound. if the decision remains unchallenged, the implication is that no head of state, whether or not they are a signatory to the icc, is immune from prosecution on the mere basis of the icc‟s status as an international court. as international law currently stands, jurisdiction over non-member states has to be derived from a higher authority. in the case of sudan, such authority and resulting jurisdiction does indeed exist by virtue of united nations security council (unsc) resolution 1593, which refers the situation in darfur to the icc. this resolution implies powers to arrest and prosecute president al bashir, and had the chamber relied on this authorisation to confirm its jurisdiction, no criticism could be raised. the need for such a resolution (especially where non-member states are concerned) highlights the problem of the icc‟s dependence on the unsc. the paralysing effect of this dependence can be seen most clearly and recently in the case of syria, where despite repeated calls by the un commissioner for human rights, no such referral to the icc has taken place due to the exercise of veto powers in the 1 decision pursuant to article 87 (7) of the rome statute on the failure by the republic of malawi to comply with the cooperation requests issued by the court with respect to the arrest and surrender of omar hassan ahmad al bashir icc-02/0501/09-3: pre-trial chamber i of the international criminal court 12 december 2011. sandra bullock, llb, postgraduate research student. case commentary 198 security council. it would therefore appear that despite the pre-trial chamber‟s reasoning in the bashir case, the icc has a long way to go before its universal jurisdiction can be considered established. 2. the facts on march 31 2005 the unsc passed resolution 1593 which referred the situation in darfur to the icc and “urge[d] all states and concerned regional and other international organizations to cooperate fully” with the court. on march 4 2009 the pre-trial chamber published its decision on the prosecution’s application for a warrant of arrest against omar hassan ahmad al bashir (hereafter the march 4 2009 decision) in which it asserted the icc‟s jurisdiction over omar al bashir despite his position as the current head of a state not party to the rome statute. this conclusion was based on the fact that one of the central aims of the rome statute is to end impunity for the perpetrators of the most serious international crimes. furthermore, the pretrial chamber stated that article 27(1) and (2) provides that the rome statute applies to all people equally regardless of their position, and capacity as a head of state did not exempt a person from criminal responsibility. 2 the pretrial chamber stated that customary international law rules establishing the immunity of serving heads of state did not bar the court from exercising its jurisdiction. the chamber determined that because the security council had referred the matter to the icc, it had also intended that any prosecution would take place within the framework of the rome statute. on march 4 2009 and july 12 2010, the chamber issued an arrest warrant against omar al-bashir. 3 all state parties were then sent a request for cooperation in accordance with articles 89(1) and 91 of the rome statute “for the arrest and surrender” of president al bashir. 4 despite this request, together with a verbal reminder, 5 the republic of malawi received president al bashir on a state visit as a guest and participant of a summit of regional leaders in lilongwe in october 2011. subsequently, the pre-trial chamber ordered the registrar to transmit a copy of their report on the visit (and noncooperation with the request for arrest) to the republic of malawi, and to ask for the republic‟s observations. 2 articles 27(1) and (2) and 98(1) and (2) of the rome statute 1998 are essential to the discussion at hand, and are therefore reproduced in full at the end of this case commentary. 3 icc-02/05-01/09-1; icc-02/05-01/09-95. 4 icc-02/05-01/09-7. 5 icc-02/05-01/09-136-conf, anx 4. the verbal reminder was sent to malawi‟s embassy in brussels on the day before the presidential visit. the denning law journal 199 in its response, 6 the malawian ministry of foreign affairs claimed that president al bashir was a serving head of state, and therefore malawi should “accord ... him all the immunities and privileges guaranteed to every visiting head of state and government” including freedom from arrest and prosecution whilst on their territory. since sudan was not a party to the rome statute, article 27 (waiving the immunity of heads of state) was not applicable. moreover, malawi accepted the position of the african union on the matter, which upheld the immunity of serving heads of states not parties to the rome statute, challenged the warrant of arrest by the international criminal court for that reason, and asked its members for non-cooperation with the court. on december 12 2011, the pre-trial chamber handed down its decision on the issue of malawi‟s non-cooperation. 3. the decision the pre-trial chamber stated that article 119(1) of the rome statute established the ultimate authority of the icc to decide if immunities should be applied and respected in an individual situation. more significantly, it found that malawi had ignored rule 195(1), according to which a member state aware of the existence of a problem with regard to a request for surrender or arrest should “provide any information relevant to assist the court in the application of article 98”. the chamber rejected malawi‟s first argument that president al bashir was immune from prosecution because he was a serving head of state and sudan was a non-signatory to the rome statute. they then considered the african union position, 7 which formed the basis of malawi‟s second argument that article 98(1) justified refusing to comply with the cooperation 6 transmission of the observations from the republic of malawi, icc-02/05-01/09138 with confidential annexes 1 and 2. 7 african union, assembly, „decision on the meeting of african states parties to the rome statute of the international criminal tribunal (icc) doc. assembly/au/13(xiii)‟, 3 july, 2009, assembly/au/dec.245(xiii) rev 1 („3 july 2009 au decision‟), para. 10; african union, assembly, „decision on the progress report of the commission on the implementation of decision assembly/au/dec.270(xiv) on the second ministerial meeting on the rome statute of the international criminal court (icc) doc. assembly/au/10(xv)‟, 27 july 2010, assembly/au/dec.296(xv), paras 5-6; african union, assembly, „decision on the implementation of the decisions on the international criminal court (icc) doc. ex.cl/639(xviii)‟, 30-31 january 2011, assembly/au/dec.334(xvi), para 5; african union, assembly, „decision on the implementation of the assembly decisions on the international criminal court – doc. ex.cl/670(xix)‟, 30 june-1 july 2011, assembly/au/dec.366(xvii) (30 june-1 july 2011 au decision, para 10; 30 june-1 july 2011 au decision, para 5. case commentary 200 requests. the chamber asserted that immunity for heads of state in prosecutions by international tribunals and courts had been rejected over and over again since the days of world war i, citing numerous authorities in support of the conclusion that such immunity no longer existed where an international court issued an arrest warrant for international crimes, including the icj decision in democratic republic of the congo v belgium (the arrest warrant case) 8 and the ruling of the special court for sierra leone, appeals chamber in prosecutor v charles ghankay taylor. 9 the chamber also sought support from cassese, admitting that personal immunity before national courts may prevail since national authorities may use prosecutions to further their own interest and limit a foreign state‟s “ability to engage in international action”. 10 however, such a danger did not exist in the case of prosecutions by international courts and tribunals (emphasis added), which were “totally independent of states and subject to strict rules of impartiality.” 11 the chamber concluded that on the basis of these authorities it was now “a principle in international law that immunity of either former or serving heads of state cannot be invoked to oppose a prosecution by an international court” 12 whether or not the states were party to the rome statute. the chamber added that the exercise of jurisdiction of the icc in this case followed from a referral by the unsc under its chapter vii powers. the chamber admitted that there existed “an inherent tension” 13 between articles 27(2) and 98(1) of the rome statute where the court had issued a request for arrest and surrender of a head of state. nonetheless, malawi and the african union could not rely on article 98(1) to justify non-cooperation. the authorities clearly established that the immunity of a head of state vanishes in the face of prosecution by an international tribunal or court. whilst the prosecution of only one current head of state had been initiated at the time of the “arrest warrant case” judgment (in the case of charles taylor), since then proceedings had begun against slobodan milosevic, muammar gaddafi, laurent gbagbo, and now omar al bashir. evidently, international prosecutions against heads of state could now be seen as accepted practice. furthermore, the ratification of the rome statute and in particular article 27(2) by 121 states parties supported the argument that international practice stripped immunity from top officials under national and 8 judgment, 14 february 2002, icj reports 2002. 9 case number scsl-2003-1-ar72(e), decision on immunity from jurisdiction, 31 may 2004, paras 51-52. 10 a cassese, international criminal law (oxford university press, 2nd ed, 2008), 312. 11 ibid. 12 icc-02/05-01/09-139, at para 36. 13 ibid, at para 37. the denning law journal 201 international law in the face of prosecutions by the international criminal court. for malawi to ratify the rome statute, and then refuse to surrender al bashir, who was sought to be prosecuted for inciting genocide, war crimes and crimes against humanity, was at the very least inconsistent and “contrary to the purpose of the statute malawi ha[d] ratified”. 14 the chamber therefore concluded that customary international law of immunities no longer applied when an international court requested the arrest and surrender of a head of state wanted for international crimes and that article 98(1), in this instance, did not apply. the chamber ordered the registrar to transmit the present decision to the unsc and to the assembly of states parties to the rome statute. 4. commentary some critics have argued that the logic applied by the chamber in this decision is at least partially flawed, although the result is to be welcomed. akande, for instance, states that the effect of the decision is not only to render customary international law of immunities applying to current heads of state obsolete, but also article 98 of the rome statute itself. 15 more importantly, the reasoning of the chamber ignores the fact that the rome statute is a treaty instrument, binding on only the signatories. 16 akande asserts that criminal liability of a non-state party does not arise simply from the international nature of the court or tribunal seeking the arrest of the head of state of a nonparty. it could be deemed to arise, however, where the unsc refers the matter to the icc for investigation and prosecution. on becoming a member of the united nations, sudan, the country in question, has entrusted the security council with the power to take any action it deems fit (under the powers conferred by chapter vii of the charter) to maintain international peace and security, including the referral of the situation to an international tribunal or court. according to akande a state is under an obligation to consider whether an official‟s immunity prevents the host state from cooperating with the icc‟s request to surrender or arrest that official. 17 having examined the apparent conflict between article 98(1) and (2), and article 27 of the rome statute he 14 ibid, at para 41. 15 d akande, „icc issues detailed decision on bashir‟s immunity (. . . at long last . . . ) but gets the law wrong‟ ejil: talk, 15 december 2011: available at: http://www.ejiltalk.org/icc-issues-detailed-decision-on-bashir‟s-immunity-at-longlast-but-gets-the-law-wrong/ (accessed 1 july 2013). 16 see article 34 vienna convention on the law of treaties. 17 dapo akande „international law immunities and the international criminal court‟ (2004) 98 am j int‟l l 396, 409, 420. http://www.ejiltalk.org/icc-issues-detailed-decision-on-bashir%e2%80%99s-immunity-at-long-last-but-gets-the-law-wrong/ http://www.ejiltalk.org/icc-issues-detailed-decision-on-bashir%e2%80%99s-immunity-at-long-last-but-gets-the-law-wrong/ case commentary 202 concludes that the immunity of non-state parties remains unaffected since they are not signatories to the treaty. 18 even more significantly, he argues that article 98 has the effect of relieving a host state from its responsibility to surrender a suspect, where international law obligations provide for immunity of a non-state party. 19 this is the same position taken by the african union in the case of president al bashir. the stance of akande and the african union appears to be in direct conflict with that of the pre-trial chamber which relies heavily on the icj‟s opinio juris in the arrest warrant case and even extends it. the arrest warrant case established that the personal immunity of foreign officials remained intact before national courts. however, the majority of judges proposed obiter dicta that immunity may not exist before international criminal courts or tribunals, where such courts have jurisdiction, 20 and this suggestion was unquestioningly accepted by the pre-trial chamber of the icc. the pre-trial chamber also relies on the view of the special court for sierra leone (scsl), which held that “the principle seems now established that the sovereign equality of states does not prevent a head of state from being prosecuted before an international criminal tribunal or court”, 21 having considered the statutes of the nuremberg and tokyo international military tribunals, the ad hoc international criminal courts as well as the permanent icc, and the arrest warrant and pinochet 22 cases. however, it is submitted that the pre-trial chamber, in relying on these authorities as establishing a general principle, fails to consider the matter of jurisdiction. as akande points out, whether an official is permitted to rely on international law immunities “to avoid prosecutions by international tribunals depends on the nature of the tribunal: how it was established and whether the state of the official sought to be tried is bound by the instrument establishing the tribunal.” 23 for instance, the international criminal tribunals for the former yugoslavia (icty) and rwanda (ictr) were established through security council resolutions 24 under chapter vii powers, and the provisions in the statutes establishing those tribunals are therefore binding on all un members, including those that remove the immunity of heads of state. treaty 18 ibid p 421. 19 ibid p 424. 20 above para 61. judges higgins, kooijmans and buergenthal delivered a joint separate opinion, para 79. 21 prosecutor v charles taylor, supra, footnote 18, para 52. 22 r v bow street metropolitan stipendiary magistrate ex p. pinochet ugarte (no. 3) [2000] 1 ac 147; [1999] 2 wlr 827 hl. 23 above p 417. 24 unscr 827 of 25 th may established the icty, and unscr 955 of 8 th november 1994 established the ictr. the denning law journal 203 provisions establishing an international court or tribunal, however, are by virtue of article 34 of the vienna convention on the law of treaties 25 only binding on the parties to that treaty and are therefore incapable of removing international law immunities of non-party states. the pre-trial chamber therefore erroneously relies on the mere fact of its status as an international tribunal trying international crimes as a sufficient reason to remove the immunity of non-state parties. akande sums up the situations in which international immunities may be ignored before international courts or tribunals as “(1) ... the instruments creating those tribunals expressly or implicitly remove the relevant immunity, and (2) ... the state of the official concerned is bound by the instrument removing the immunity.” 26 malawi‟s written representations with regard to its action (or rather nonaction), referred to by the chamber in its decision, highlight the apparent conflict between articles 27 and 98 of the rome statute. article 27(1) provides for criminal responsibility regardless of „official capacity as a head of state or government‟, and article 27(2) provides that „immunities … shall not bar the court from exercising its jurisdiction over such a person.‟ by contrast, article 98(1) seemingly preserves customary international law immunity. in fact, it obliges the court not to: proceed with a request for surrender or assistance which would require the requested state to act inconsistently with its obligations under international law … unless the court can first obtain the cooperation of that third state for the waiver of the immunity. this apparent conflict can be explained and overcome if one looks at who the provisions refer to. article 27(2) presents an unprecedented waiver of immunity of officials before the icc. there is no corresponding provision in the instruments setting up the imts at nuremberg and tokyo or the icty and ictr. however, this voluntary waiver of immunity before the icc only 25 ibid. the general rule in article 34 of the vienna convention, also known by the maxim pacta tertiis nec nocent nec prosunt undoubtedly reflects customary international law: see david harris, cases and materials on international law, 7 th ed, sweet and maxwell p 686. however, article 38 provides that “nothing … precludes a rule set forth in a treaty from becoming binding upon a third state as a customary rule of international law, recognised as such.” this allows room for development, and the possibility that a treaty may in the future apply to non-signatories erga omnes, if it were to be recognised as customary international law established by opinio juris and state practice. it remains to be seen how likely such erga omnes application of the rome statute would be, especially in the face of strong resistance by 3 of the p5 members of the un security council, the african union, and other influential countries. 26 ibid, p 418. case commentary 204 applies to states parties of the rome statute, who as signatories have chosen to surrender their right to immunity. non-party states have not signed up to the provisions of the rome statute, nor have they ratified it, and their position therefore remains untouched. at no point in time have non-signatories surrendered their right to immunity under customary international law. article 98 can in fact be seen as supporting the position of non-party states by respecting customary international law obligations and the rights of parties not subject to the provisions of the rome statute. articles 27 and 98 therefore represent no conflict at all, they simply apply to different groups. as undesirable as it may seem in the pursuit of justice, this deliberate preservation by the authors of the rome statute of customary international law immunities of non-party states cannot be overlooked. the desperate attempt by the pre-trial chamber to rectify this situation and ignore article 98 gives no credit to the icc. alternatively, the chamber should have chosen the less controversial approach to base the authority to remove al bashir‟s immunity simply on the fact that the security council referred the situation in darfur to the icc. it is argued that this referral implies the power to seek arrest and prosecution of al bashir, and to that end the customary international law immunity of a non-party state was suspended by virtue of the security council resolution. approaching the matter from this angle, there would be no debate as to the jurisdiction of the court over a non-party state. any real criticism of malawi‟s failure to comply with the request to arrest and surrender al bashir should have focused on their obligation to have brought their concerns with regard to the court‟s request to its attention immediately, in accordance with article 97. equally rule 195 of the icc‟s rules of procedure and evidence obliged malawi to „provide any information relevant to assist the court in the application of article 98‟, and clearly malawi failed in this obligation. akande suggests an alternative argument in order to establish jurisdiction of the court, and justify stripping al bashir of immunity. 27 he points out that unsc resolution 1593 imposes an obligation on the government of sudan to “cooperate fully” with the icc. this could be interpreted as suggesting that sudan itself is to be considered analogous to a state party and therefore bound by the rome statute and the application of article 27, thus removing immunity from al bashir. other non-members of the icc, whilst urged by unsc resolution 1593 to cooperate with the icc, have no obligation under the rome statute, as is explicitly observed in the scr. unlike with the ad hoc tribunals, no explicit 27 d akande, „who is obliged to arrest bashir?‟ ejil: talk, 13 march, 2009: available at http://www.ejiltalk.org/who-is-obliged-to-arrest-bashir?/ (accessed 1 july 2013). http://www.ejiltalk.org/who-is-obliged-to-arrest-bashir?/ the denning law journal 205 obligation to cooperate with the tribunals has been imposed on non-member states. akande suggests that there could be a permission to act and arrest bashir instead of an obligation, because his immunity could be seen to have been removed by the resolution. non-member states could be deemed to be relieved from an international law duty to observe al bashir‟s immunity if they so choose, whereas member states could be perceived to be under an actual obligation to ignore al bashir‟s immunity. the chamber‟s condemnation of malawi should have been based on this obligation of a member state, arising from unsc resolution 1593, to cooperate with the icc. the blanket assertion that jurisdiction arises automatically due to the international nature of the icc is legally questionable as well as unnecessary. the chamber would have been better advised to rely solely on unsc resolution 1593, subjecting sudan to the jurisdiction of the court, and by implication also subjecting it to the rome statute and therefore article 27. effectively, al bashir‟s immunity is not just removed before the court but also before other nations acting in support of the court. the chamber‟s decision can be criticised on other, albeit less imaginative grounds. gaeta asserts that whilst the rules of customary international law on immunities do not apply to an international tribunal or court (even where a state is not a member of a treaty-based court), these customary rules cannot be disregarded by a state itself. 28 therefore, whilst the arrest warrant by the icc following unsc resolution 1593 was lawful, the request to states parties to arrest and surrender president al bashir was not, and is contrary to article 98(1) and therefore an ultra vires act. 29 gaeta relies on the icj‟s opinion in the arrest warrant case, referring expressly to article 27(2) of the rome statute that “immunities… which may attach to the official capacity of a person, whether under national or international law, shall not bar the court from exercising its jurisdiction over such a person”. she does, however, point out that the icj at no stage considered if states had any duty or right to disregard customary international law on immunities in order to comply with a request for cooperation by an international tribunal or court. 30 the unhelpful fact that the icc does not have any enforcement powers in its own right does not relieve states from their duty to respect immunities, simply in order to comply with a request by the icc. in the bashir case, gaeta raises the unlikely possibility that the icc could have got around this problem by seeking a waiver of bashir‟s immunity from sudan. should such a waiver of 28 p gaeta, „does president al bashir enjoy immunity from arrest?‟ [2009] journal of international criminal justice 315. 29 ibid, p 8. 30 ibid. case commentary 206 immunity have been granted, the court‟s request for cooperation and arrest would have been lawful. 31 whilst gaeta‟s consideration of states‟ obligations adds an interesting dimension to the discussion, even the very starting point of her argument has to be considered with caution. gaeta accepts unquestioningly that, by virtue of the icj‟s opinion, article 27 applies even to non-signatories of the rome treaty, and the immunity of officials is, as a matter of principle, removed before international courts. in her words: “[i]nternational criminal courts are not organs of a particular state; they act on behalf of the international community as a whole to protect collective or even universal values, and thus to repress very serious international crimes.” 32 this is an expression of laudable intentions, with which she credits the icc. however it cannot be overlooked that the icc is a membership-based court, and gaeta‟s blanket acceptance of the removal of immunities before the court is by no means a settled argument. simply but persuasively put, “[i]f neither state a nor state b has the power to ignore the personal immunity of state c without consent, then the two together cannot create an international court and bestow upon it a power that they do not possess. the problem remains whether it is two states, or twenty, or sixty: they cannot bestow a power that they do not possess.” 33 it is submitted, therefore, that the argument promoted by akande, that jurisdiction is triggered and immunity is removed through the security council resolution, is a much safer one. this point is also lent support by jacobs, 34 who similarly to akande fails to accept as inevitable the conclusion that the arrest warrant case establishes the abolition of immunity of heads of state before an international tribunal. as jacobs points out, the effect of the chamber‟s blanket assertion that immunity no longer applies before an international criminal court would be that other leaders like obama, medvedev, and hu could be prosecuted at any time for international crimes by the icc. such impunity may be morally desirable, and certainly was the intention of the authors of the rome statute. sadly it is, however, not universally accepted, given the existing power structure of the security council, the continuing resistance by three of the p5 members 31 ibid, p 6. 32 ibid, p 4 33 r cryer, h friman, d robinson, e. wilmshurst, an introduction to international criminal law and procedure, 2nd edn (cambridge university press 2010) 551. 34 d jacobs, „obama, medvedev and hu jintao may be prosecuted by international criminal court, pre-trial chamber concludes‟ 15 th december 2011: available at http://humanrightsdoctorate.blogspot.com. http://humanrightsdoctorate.blogspot.com/ the denning law journal 207 towards the icc, and the very nature of this treaty-based court requiring voluntary membership and ratification of its statute. jacobs‟ point goes to the very core of this characteristic of the icc, by emphasising that it is a court established by consent, and non-parties can only be subjected to its jurisdiction by condemnation of the international community as a whole via a security council referral utilizing its chapter vii powers. significantly, three of the five permanent members have refused to sign up to the rome statute, and the use of their veto powers has in past situations thwarted a condemnation by security council referral. the icc now sadly has an ill-fated reputation of being a court for africa, and potentially the middle east rather than a truly international one. this highly sceptical view taken particularly by the african union, 35 cannot altogether be shaken off. additionally, it highlights the potential paralysis and impotence of the court, unless it has jurisdiction through membership or a security council referral. viewed from this angle, it is understandable, albeit legally questionable, that the chamber sought to extend its own jurisdiction as a matter of principle, particularly in light of its established purpose of ending impunity for the perpetrators of the worst international crimes. there may, however, be a way out of this impasse. in his 2005 report on darfur, cassese suggests that rulings by international criminal courts and tribunals, if uncontested by states, may become customary international law (emphasis added), a point demonstrated by the fact that some renowned academics like gaeta have already (at least partly) accepted the icc‟s rulings including its interpretation of the icj opinion in the arrest warrant case, as new customary international law with the effect that it may indeed serve to remove the immunity of heads of state before an international tribunal. as the judges pointed out in the arrest warrant case, “the law… is in constant evolution, with a discernible trend to limiting immunity and strengthening accountability.” 36 if state practice and opinio juris keep reinforcing the view that personal immunity is no barrier before an international court, this may emerge as customary international law. 35 as reinforced by the decisions of the au assembly at its 19th summit. the au endorsed the request for an advisory opinion from the icj on the question of immunities of heads of states not party to the rome statute, effectively seeking a decision by the icj that is different from that reached by the pre-trial chamber. the au assembly also asked its members to consider concluding bilateral agreements on the immunities of their officials, in an attempt to take advantage of article 98 (2) of the rome statute. these developments have been discussed in more detail in dapo akande‟s blog at http://www.ejiltalk.org/the-african-union-the-icc-and-universaljurisdiction-some-recent-developments posted on 29th august 2012. 36 arrest warrant case, above, joint separate opinion of judges higgins, kooijmans and buergenthal, para 75. http://www.ejiltalk.org/the-african-union-the-icc-and-universal-jurisdiction-some-recent-developments http://www.ejiltalk.org/the-african-union-the-icc-and-universal-jurisdiction-some-recent-developments case commentary 208 as it stands, however, the chamber‟s decision is undoubtedly flawed. the somewhat desperate attempt to establish jurisdiction and lack of immunity highlights the precise difficulties the court faces. its legitimacy is dependent on either acceptance by its signatories (which regrettably are currently less than two thirds of the world‟s states and does not include three of the permanent members of the security council, i.e. russia, china, and the united states), or on a security council referral, which exists in the case of darfur, but would be unlikely to occur in a situation involving said p5 members or indeed their allies. an example of such a situation is the current inactivity (recently condemned by the general assembly) of the security council in the situation of syria, which has historically enjoyed strong ties with the p5 member russia. 5. conclusion what then is the solution in this ongoing quest to bring to justice international criminals who are traditionally immune from prosecution? let us for a brief moment indulge the more impatient of us, who would rather not have to wait for the slow change in the customary international law of immunities, or the voluntary signing up of the rest of the world, in their own time, to the rome statute. let us instead imagine it was within our power to shake up the system and create universal jurisdiction over such criminals. one could begin by attempting to assert sufficient political and diplomatic pressure on non-signatories to make them feel ostracised by the international community unless they become members of the icc. as this may not be entirely successful and the jurisdiction of the icc would still largely depend on security council referrals, a shake-up of power distribution in the security council appears to be a fundamental requirement. veto powers based on the post-wwii reality should be abandoned, and a fairer, perhaps rotating system should be introduced, and the charter amended to reflect these changes. once that has been achieved, the option to adopt the icc as an instrument of the united nations, rather than some willing signatories, should be put to the general assembly, and a universally applicable justice system with its own permanent international criminal court would be the result. at last, the currently short arm of the international criminal justice system may be long enough to reach the worst perpetrators of war crimes and crimes against humanity, without exception, and impunity would no longer exist. unfortunately, it may be necessary to come back down to earth, in which case the only option is to remain positive that developing customary international law is indeed slowly eroding the immunity of heads of state, leading to greater accountability for the commission of international crimes. the denning law journal 209 6. appendix article 27 irrelevance of official capacity 1. this statute shall apply equally to all persons without any distinction based on official capacity. in particular, official capacity as a head of state or government, a member of a government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. 2. immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the court from exercising its jurisdiction over such a person. 7. article 98 cooperation with respect to waiver of immunity and consent to surrender 1. the court may not proceed with a request for surrender or assistance which would require the requested state to act inconsistently with its obligations under international law with respect to the state or diplomatic immunity of a person or property of a third state, unless the court can first obtain the cooperation of that third state for the waiver of the immunity. 2. the court may not proceed with a request for surrender which would require the requested state to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending state is required to surrender a person of that state to the court, unless the court can first obtain the cooperation of the sending state for the giving of consent for the surrender. two kinds of justice: human and devine the denning law journal 87 denning law journal 2008 vol 20 pp 87-110 disgorgement damages for breach of contract adam temple∗ gain-based damages for breach of contract are often viewed as anomalous, and lacking a clear rational basis. this article seeks to provide a theoretical basis for the requirement to disgorge profits gained through breach of contract. by looking at the core contractual obligation, it can be seen that a contracting party has two ways in which they can fulfil their promises. they can pay damages where they fully compensate the other party, or they can perform. where damages are inadequate, the contracting party must perform. failure to perform in such circumstances should be prevented, and it is argued that disgorgement of profits is a suitable deterrent to such contract breakers. it is suggested that the law should act in this way to protect the facilitative institution of contract. introduction not so long ago it would not have been contentious to suggest that gainbased damages have secured a foothold in the law of contract. following attorney general v blake,1 it seemed that there was plenty of scope for argument about when gain-based damages were appropriate, but little room for suggesting that they should never be available. following the court of appeal’s decision in the wwf case,2 and lord scott’s speech to the chancery bar association,3 it appears that the tide of opinion may be again turning against such damages. the thrust behind both of those criticisms was that the award in blake is best interpreted as compensatory in nature; the defendant’s profits providing the measure of a loss that was difficult to measure. this article considers the various arguments that have aligned for and against the introduction of gain-based damages, and focuses on the area that ∗ ba, bcl (oxon). i would like to thank william swadling of brasenose college, oxford, who supervised the original version of this article. all errors remain my own. thanks are also due to jeffrey hackney and laura hoyano of wadham college, who guided my first, faltering, steps into the world of law. 1 attorney general v blake (jonathon cape ltd third party) [2001] 1 ac 268. 2 wwf-world wide fund for nature (formerly world wildlife fund) v world wrestling federation inc [2007] ewca civ 286. 3 published, with slight revisions, as lord scott “damages” [2007] lmclq 465. disgorgement damages for breach of contract 88 appears to trouble commentators on both sides of the divide: whether and when contract breaches should be deterred. this question is then examined from first principles, asking why contracts are ever enforceable. the way in which one defines the basic contractual obligation is then used to inform the discourse on deterrence. it is argued that this analysis identifies some breaches of contract that require deterrence, wherever the breach leaves the losing party without any of the benefit contracted for. terminology when considering the question whether a contract-breaker who thereby profits ought to give up that profit, it should be remembered that a number of different terms have been used to describe such an award. sums awarded have variously been described as “an account of profits”,4 “restitutionary damages”,5 and “disgorgement damages.”6 those who use the “disgorgement” tag tend to do so to differentiate between those awards which are based upon the movement of some value between claimant and defendant, which has to be given back (a restitutionary award), as opposed to gains made by the defendant from another source which the claimant wants to be given up (a disgorgement award). as the situation with which this article is concerned relates to the “giving up” of profit, i accordingly use the “disgorgement” tag. it has the additional benefits of perspicacity of meaning; it clearly differentiates between this area and that of unjust enrichment, where the term “restitutionary” is standard, and it better reflects the idea of “giving up” the profit. arguments in favour of disgorgement damages in this section i consider the arguments that have been put forward in favour of the availability of disgorgement damages. (a) “a wrongdoer shall not be allowed to profit from her own wrong” the most basic reason given for requiring disgorgement of profits is that the defendant ought not to be able to commit a wrong and retain the benefits gained therefrom. thus, in considering the blake case, lord nicholls said that 4 used by lord nicholls in blake, above n 1. 5 pbh birks an introduction to the law of restitution (oxford: clarendon press, 1985); as burrows the law of restitution (london: butterworths, 2nd edn, 2002). 6 j edelman gain-based damages: contract, tort, equity and intellectual property (oxford: hart, 2002); p jaffey “restitutionary damages and disgorgement” [2001] rlr 578. the denning law journal 89 “[t]he broad proposition that a wrongdoer should not be allowed to profit from his wrong has an obvious attraction.”7 as a reason for making disgorgement damages available, this statement lacks any firm grounding; it is nothing more than an assertion of a vague moral position. it completely fails to tell us what “wrongs” are to be included within the principle, and why the claimant should be the proper recipient of the defendant’s gain. indeed, most authors accept that this proposition is over-broad, so limit their contention to the more limited idea that profits ought not to be retained in certain situations. (b) the cynical defendant edelman regards deterrence as the reason why disgorgement damages ought to be available for breach of contract. one type of breach which needs to be deterred, in his view, is where the defendant has acted “deliberately and cynically.”8 disgorgement damages are required, according to this rationale, because the compensatory measure allows the wrongdoer to calculate the extent of such damages in advance, so as to calculate whether she can make a greater profit than she would have to pay out. any person who is willing to breach their duty to somebody else in order to make a profit for themselves is thus caught by the test. in edelman’s view, then, all deliberate breaches of contract ought to give the claimant the choice whether to seek disgorgement of the defendant’s profits instead of compensation for her loss; all such breaches need to be deterred. the “cynical contract-breaker” test is also the one adopted by birks9 in his article advocating the possibility of stripping such defendants of their profits. despite the apparently broad question that he asks at the start of the article,10 however, birks adds an important restraint on the availability of disgorgement damages (he calls them “restitutionary damages”), in that: “there should be no recourse to restitutionary damages – not even in the case of cynical breach for the sake of gain – unless on the particular facts compensatory damages are demonstrably an inadequate remedy…”11 7 blake, above n 1, p 278. 8 edelman, above n 6, p 84. 9 pbh birks “restitutionary damages for breach of contract: snepp and the fusion of law and equity” [1987] lmclq 330. 10 birks asks, ibid, at 330: “suppose someone sees that by breaking his contract he can make a substantial profit: then, calculating that his likely gains will far outweigh any loss for which he might have to compensate his victim, he cynically decides to throw his contract over. in that strong case … can the victim claim the contract breaker’s profits?” 11 ibid, at 342. disgorgement damages for breach of contract 90 birks thus limits the category of cases in which disgorgement damages ought to be available to those where compensation fails to adequately protect the claimant. he regards the move towards allowing disgorgement damages for breach of contract as necessary to avoid the abuse of other legal concepts which have been used to reach the same result. he points to two cases, british motor trade association v gilbert12 and reid-newfoundland telegraph v anglo-american telegraph co13 as demonstrating these “legal contortions” where the courts have given disgorgement damages, whilst denying that they are departing from the compensatory measure of damages. (c) institutional protection another argument that can be advanced for allowing disgorgement damages is that deterrence is required in order to protect the facilitative institution of contract. the idea that legal institutions require protection by deterring wrongs that harm those institutions was put forward by jackman,14 and the theory is most clearly borne out by the availability of disgorgement damages for breach of fiduciary duty, as exemplified by boardman v phipps.15 the argument suggests that a legal institution may be undermined by conduct, even if it does not cause the individual claimant any harm. so, fiduciary relationships require that the fiduciary act solely for the benefit of the other party, and the fiduciary is not permitted to make a profit for herself. in boardman v phipps the solicitor acted on information gained in his role as fiduciary and, even though his actions were profitable for the beneficiary of the duty, he was obliged to disgorge his profits in order to maintain the institution of fiduciary relationships. jackman is ambivalent as to whether the institutional protection argument ought to extend to breaches of contract. on the one hand he concedes that compensatory damages which put the claimant in the position she would have been in had the contract been performed can be seen to provide “sufficient institutional protection to maintain that degree of stability which is essential to any practice of promise-making.”16 on the other hand he considers that a deliberate profitable breach might provide sufficient moral opprobrium to require disgorgement damages, in order to protect the institution. jackman’s tentative suggestion that the institution of contract could require protection in some circumstances appears similar to that of birks; whilst he considers that 12 [1951] 2 all er 641. 13 [1912] ac 555. 14 i m jackman “restitution for wrongs” [1989] clj 302. 15 [1967] 2 ac 46. 16 jackman, above n 14, at 320. the denning law journal 91 compensation will normally be an adequate response, he recognises that in some situations harm to the institution will result if only that measure is applied, and so deterrence might be appropriate. (d) personal rights require the same protection as property rights. another argument exists, presented by friedmann17 and smith18 and supported by the supreme court of israel,19 that contractual rights are to be seen as the equivalent of property rights, and that when one breaches one’s contract one is depriving the other party of a right in a similar way as if one had taken their bicycle. the essence of smith’s argument is that: “if disgorgement is not allowed and the wrongdoing defendant is allowed to keep the gain, then in essence the court is allowing rights to be expropriated.”20 he regards this as being true in relation to both personal rights, including breach of contract, and property rights. it is essential, in smith’s view, that both groups of right are treated in the same way because he considers there to be very little difference between them. he admits that personal rights are only rights against particular individuals, whilst proprietary rights are rights against an indefinite class of people, but regards this as the only difference. as such he denies that there are any relevant differences in the content of the rights. friedmann’s arguments are similar to those of smith, arguing that denial of performance amounts to the deprivation of an interest that “belonged” to that contractual party. his argument, however, is slightly different, in that he places less emphasis on the idea of expropriation of rights, but instead focuses on the extent of protection that they deserve. he claims that: “limitation of a [claimant’s] remedy to damages tends to trivialize the importance of contractual obligations, undermining faith in their seriousness and confidence in each party’s ability to rely on full performance.”21 17 d friedmann “restitution of benefits obtained through the appropriation of property or the commission of a wrong” (1980) 80 colum l rev 504. 18 ld smith “disgorgement of the profits of breach of contract: property, contract and “efficient breach”’ (1995) 24 canadian business lj 121. 19 adras building material ltd v harlow & jones gmbh [1995] restitution law review 235. 20 smith, above n 18, at 122-123. 21 friedmann, above n 17, at 515. disgorgement damages for breach of contract 92 these arguments tend to place less emphasis on the deterrence of particular types of breaches of contract, and seek to deter all breaches, as they undermine the integrity of personal rights. arguments against the availability of disgorgement damages arguments against the availability of disgorgement damages appear to implicitly assume that breaches of contract need not be deterred. compensatory damages, under these theories, are sufficient protection for contractual obligations. (a) corrective justice weinrib centres his theory around the notion of corrective justice so that, for him, “[t]he parties do and suffer injustice only with respect to … loss.”22 where such losses arise compensatory damages address the loss, and thus address the injustice. there is nothing else with which the law should be concerned. damages which focus upon the gain made by the defendant, as disgorgement damages do, fail to live up to weinrib’s requirement of correlativity, in which the question of injustice is answered by focusing on the relationship between the parties. there is no sufficient link, in his view, between the particular claimant and the profit, which requires that it be paid over; for him the claimant has no interest in whether the defendant makes a gain, all that should concern the defendant is the correction of her loss. weinrib says that: “the remedy consists of the restoration by the defendant (so far as the law can achieve it) of what rightly belongs to the [claimant], thereby undoing the injustice suffered by the [claimant].”23 the thing that “rightly belongs” to the claimant, in weinrib’s argument, is the “performance to which the claimant was entitled.”24 the restoration is effected by the payment of damages based on the performance interest. provided that corrective justice is thus satisfied, there appears to be no room in weinrib’s theory for notions of deterrence. deterrence, as far as it concerns itself more generally with protecting personal rights, preventing cynical 22 ej weinrib “restitutionary damages as corrective justice” (2000) 1 theoretical inquiries in law 1, at 11. 23 ej weinrib “punishment and disgorgement as contract remedies” (2003) 78 chicago-kent l rev 55, at 61. 24 ibid, at 68. the denning law journal 93 breaches or protecting the law’s facilitative institution, is external to the relationship between the parties. such external factors are anathema to weinrib, who claims that the law should be entirely intelligible from within the context of the bilateral relationship between claimant and defendant. he does not deny that some deterrence may be desirable, but says that any action against these harmful breaches “must be located within criminal rather than private law.”25 weinrib’s position has been echoed in a speech by lord scott.26 his lordship suggested that general deterrence has no place in private actions, and questions the use of civil courts to “pursue the protection of the rights of the public at large”27 or to punish defendants. (b) the theory of efficient breach the arguments in favour of disgorgement damages discussed above are, in the eyes of some, directed at a problem that does not exist, in that they are aimed at preventing breaches of contract. for those who believe in the paramount importance of economic efficiency,28 there is no need to deter breaches of contract. they consider it beneficial for a party to leave a contract where she has a more profitable option elsewhere, bearing in mind that she will have to pay compensation to the other party. after all, the award of compensation to the claimant ought to place that party in the position she would have been in had the contract been performed, so she should have no complaint. if the defendant can make extra profit then everybody appears to be better off. a “cynical” breach, which edelman sees as requiring deterrence, would not be a problem under such a scheme, indeed it is to be encouraged.29 this theory requires a system of compensation that covers all losses to the claimant, as is made clear by campbell and harris: “if the damages system works in the sense that damages actually are adequate, the claimant should be indifferent whether the defendant pays damages or performs.”30 25 ibid, at 86. 26 above, n 3. 27 ibid, at 472. 28 r a posner economic analysis of law (new york: aspen, 6th edn, 2003) p 119. 29 posner (ibid) does include one exception, where “a promisor breaks his promise merely to take advantage of the vulnerability of the promisee … we may as well throw the book at the promisor.” such breaches are regarded as inefficient, and thus can be deterred. this does not undermine posner’s major point that breaches, for whatever motive, should not be deterred if they are economically efficient. 30 d campbell and d harris “in defence of breach: a critique of restitution and the performance interest” (2002) 22 legal studies 208 at 219. disgorgement damages for breach of contract 94 they recognize, however, that compensation is not always adequate, especially where there are “idiosyncratic” losses depending upon the situation of the contracting parties. in such cases campbell and harris place a great deal of emphasis upon the ability of parties to tailor their agreement to provide the degree of protection that they consider themselves to need. as such, the default rules of contractual damages ought to depend upon what most commercial parties could be expected to want, to save transaction costs of contracting out of such background rules. they regard disgorgement damages as out of line with what commercial parties want, and a move to a position whereby performance is enforced, which is contrary to the flexibility that the current system engenders. the theory of efficient breach does not consider that there is any need to deter breaches. indeed, breaches are defended as necessary to ensure economic efficiency. when do we need to deter breach of contract? the arguments above, for and against disgorgement damages, have fundamentally different conceptions of whether breaches of contract should ever be deterred. those in favour of making disgorgement damages available appear to do so because they wish particular kinds of breach to be deterred. for those that argue against the availability of disgorgement damages, on the other hand, the idea of deterrence is anathema. this section is aimed at asking whether we should ever want to deter breach of contract and, if so, what marks out those breaches that need to be deterred. in order effectively to answer this question it is important to go back to the more basic question of what a contract entitles the contracting party to receive. some authors have tried to deny that the choice of secondary obligations31 in contract is necessarily connected with the underlying obligation.32 birks has argued, when discussing civil wrongs in general, that 31 the term “secondary obligations” derives from lord diplock’s speech in photo production v securicor ltd [1980] ac 827, where the term was used to refer to those obligations that arise from a breach of contract. i am using the term in a slightly broader sense, to include any court order that can be obtained upon a breach or threatened breach. 32 r craswell “contract law, default rules, and the philosophy of promising”, (1989) 88 michigan lr 489 does this explicitly, whilst fuller and purdue “the reliance interest in contract damages” (1936) 46 yale lj 373 do so implicitly, recognising the will theory as the basis of contract, but failing to see any relevance in this when it comes to remedies. the denning law journal 95 “civil wrongs … dictate no particular response”,33 but there is much force in friedmann’s argument that “the very recognition of a legal right entails some consequences regarding the remedy.”34 where a number of legal responses are possible, it would appear logical that the law should choose those responses that most accurately reflect the underlying obligation that has been broken. the remedies given upon the breach of a contractual right should reflect the content of the underlying contractual right. in english law, at least, it is irrefutable that upon the valid formation of a contract each party is bound by his promise contained therein. the promise is to perform; as roskill lj has said “[i]n principle contracts are made to be performed.”35 it is not true, however, that the law always treats the promise as creating an obligation to perform, and nothing else. the promise does bind the promisor, but the law only demands adherence to that promise to the extent of not disappointing the promisee’s expectations that are generated thereby. in the words of fried: “put simply, i am bound to do what i promised you i would do – or i am bound to put you in as good a position as if i had done so.”36 this approach is similar to the oft-quoted statement from oliver wendell holmes, that “[t]he duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it and nothing else.”37 it would be possible for the law to focus on performance, as it does in other legal systems. in such systems specific performance remedies are paramount, and all breaches are discouraged. this can be seen in the approach taken by the supreme court of israel, which has held that the disgorgement of gains is a useful deterrent against breach, saying that it was important to shift the emphasis “from the loss resulting from breach to the breach itself.”38 this reflects the general rule in israeli law that a party to a contract is entitled to specific performance, meaning that deterrence of all non-performance is needed. 33 p b h birks “the concept of a civil wrong” in d owen (ed) philosophical foundations of tort law (oxford: clarendon press, 1995) p 34. 34 d friedmann “the performance interest in contract damages” (1995) 111 law quarterly review 628 at 637. 35 cehave nv v bremer handelsgesellschaft gmbh (the hansa nord) [1976] 1 qb 44, p 71. 36 c fried contract as promise (cambridge, massachusetts: harvard university press, 1981). 37 ow holmes “the path of the law” (1897) 10 harvard l rev 457 at 462. 38 adras, above n 19, s levin j, p 241. disgorgement damages for breach of contract 96 a legal system makes a choice, and that choice entails consequences for individual contractual promises. this is analogous with fried’s explanation as to why promises themselves have binding effect: “to have force in a particular case promises must be assumed to have force generally. once that general assumption is made, the effects we intentionally produce by a particular promise may be morally attributed to us.”39 so, once a system decides upon either the duty to “perform or pay” or the duty to “perform at all costs”, that duty will attach to any given contractual promise. english law follows fried in accepting that the payment of a sum to put the other party in the position she would have been in, had the contract been performed, is sufficient to remedy the breach of contract. the proof for this lies in the acknowledged primacy of the expectation measure of damages: “the general principle regarding assessment of damages is that they are compensatory for loss or injury.”40 the house of lords in blake focused on compensation, before moving on to consider situations where the general principle is not applied. the “perform or pay” principle, above, was illustrated by quotations from fried and holmes. they are not the same. fried stated that the obligation is to perform or to place the other party in the position she would have been in had the contract been performed. holmes, however, said that the obligation to perform only extended to the requirement to pay damages if in breach; “[i]f you commit a contract, you are liable to pay a compensatory sum unless the promised event comes to pass.”41 fried’s formulation shows that the law accepts that the performance interest has two ways of being fulfilled; the promisor may perform, or she may pay damages to put the other person in the same position as if she had performed. the ability to satisfy the law in the latter sense rests on the idea that the payment of damages would be a sufficient substitute for actual performance. it follows, therefore, that if the payment of damages would not put the other party in the position as if the contract had been performed, then the performance interest can only be fulfilled by actual performance. this is different from holmes’ formulation, who casts the principle in terms of a free choice. the choice, for fried, is restricted by the requirement that damages must be an adequate substitute for performance; if they are not, then the choice does not exist. fried’s 39 fried, above n 36, at 12. 40 lord nicholls in blake, above n 1, at 278. 41 holmes, above n 37, at 462. the phraseology of ‘committing a contract’ is odd; it is used by holmes as a contrast to the idea of committing a tort. the denning law journal 97 formulation does appear to reflect the position in english law. this is demonstrated by the availability of the remedies of injunctions and specific performance in those cases where the performance interest would be insufficiently protected by an award of monetary damages. such cases usually arise when the performance at issue could not be obtained elsewhere on the open market, such as the sale of a particular piece of land. it is submitted that this is a recognition of the inadequacy of damages in such cases, and the need for the law to provide alternative secondary obligations to oblige the promisor to fulfil their promise. this leads us to the conclusion that non-performance of a contract does not always need to be deterred. the performance interest is only left unfulfilled in those few cases where monetary damages are not an adequate substitute for the claimant’s primary rights, and where specific performance is not possible. it is only in such situations that we would want deterrence, because the contract breaker is failing to live up to their core contractual obligations, as described above. it is the availability of specific performance and injunctions that tells us when the normal award of compensatory damages is insufficient to protect the performance interest. it is important to note, however, that deterrence after non-performance does not perform the same role as damages or specific performance. those awards are given in order to ensure fulfilment of the core contractual obligation. it is the impossibility of living up to the performance interest, on the other hand, which gives us our reason for wanting to deter. the idea of deterrence is therefore to prevent such wrongful nonperformances occurring in future, whereas specific performance is used to ensure actual performance in the case at hand. it can be asked how this result, on the question of which breaches of contract need deterring, differs from the arguments concerning the availability of disgorgement damages considered above. it is broadly in line with jackman’s concerns for the protection of facilitative institutions, but does not bite in all situations where the defendant makes a profit. instead, disgorgement damages should only be available where the standard secondary obligations leave the institution insufficiently protected. on the other side of the equation, campbell and harris’s argument in defence of breach and the expectation interest relies on the generally applicable secondary obligations leaving the claimant “indifferent” to the fact of breach. damages, or the possibility of specific performance, do sometimes leave the claimant with a genuine grievance in those situations where they leave her performance interest unfulfilled, and therefore she would not be “indifferent” to the breach. where the claimant is left with such a grievance, it is submitted that deterrence is needed and that the economic efficiency arguments lose their force. disgorgement damages for breach of contract 98 those who wish to deter all breaches, or that don’t think any breaches need deterring, do not fit in with the line taken here. it has been argued that they fail to take into account the approach towards the performance interest taken by english law, reflected by the secondary obligations that are imposed upon breach. in particular, the argument that personal rights should be treated in a similar way to property rights is not in line with english law. they posit a merely quantitative difference between personal rights and property rights, in terms of the number of people against whom they are exigible.42 the difference is more important than this, the difference between personal rights and property rights being that “the former goes to an object, the latter to an action.”43 in other words, the difference between property rights and personal rights is not merely quantitative, it is qualitative. it can be seen that whilst the expropriation of property rights is conceptually simple, the idea of expropriating personal rights makes no sense. if i contract with you to paint your house, and fail to do so, i have broken my promise to you, but i cannot be said to have taken your right, to have your house painted, for myself. the question of the cynicism of the defendant has not yet been addressed. it is clear from the above analysis that this test cannot form the basis of the availability of disgorgement damages, which is related to deterrence in order to protect the institution of contract law. the motive for breach could, however, enter into the picture as a limiting factor, so that innocent contractbreakers are not bound to disgorge their profits. this proposition must be rejected. the idea that the mental element should additionally have to be proved adds complication to the law, and could undermine the goal of deterrence. the law should be aimed at preventing claimants’ performance interests from being left unfulfilled, and the defendant’s mental state does not affect that issue. deterrence is focused on deterring future similar breaches, and the motive of the defendant in the particular case is therefore irrelevant. the same approach is taken in cases where fiduciaries are made to account for their profits, despite their innocence;44 the law acts to deter similar breaches in future, which would undermine the law’s institutions. the analysis above has been aimed at fleshing out the conception that deterrence is only needed where damages are insufficient. this is idea is used by birks,45 and is reflected in the blake judgement, considered below, but is often stated as a limiting factor on disgorgement damages without any reasons for setting the limit at that point. instead of viewing the requirement of the 42 e j weinrib “punishment and disgorgement as contract remedies” (2003) 78 chicago-kent l rev 55. 43 ibid, at 81. 44 keech v sandford (1726) all er rep 230; boardman v phipps [1967] 2 ac 46. 45 above n 5. the denning law journal 99 insufficiency of compensation as a limiting factor on disgorgement damages, it has been argued that the insufficiency in fact provides a basis for disgorgement damages. disgorgement damages as deterrent the requirement to pay disgorgement damages has a deterrent effect that is precisely equal to the incentives that the contract-breaker had for breaking her promise. any contractor, who acknowledges in advance that their breach of contract is going to undermine the promisee’s performance interest, ought to recognise that there is no good reason to breach. the case of lake v bayliss46 involved a contract for the sale of land but, prior to conveyance, the vendor sold the land again to a third party, for a profit. the case was decided on trust principles, but it is submitted that this is precisely the kind of case where the breach of a contract does need to be deterred, even if the defendant were willing to pay damages. the law recognises the uniqueness of contracts for the sale of land, and would usually provide for specific performance; damages are recognised not to be a fully adequate substitute. therefore, by selling the land a second time the vendor prevented the original purchaser from receiving performance. the availability of disgorgement damages should make a landowner, considering whether to sell their land twice, see that there is no advantage to be gained by such action. admittedly, the equivalence of deterrence to incentive does not provide reasons why punitive damages ought not be used. it could be expected that when faced with the possibility of even greater damages the chances of wrongful breaches would be reduced. disgorgement damages could thus be seen as an insufficient deterrent; lord diplock, when referring to the legitimacy of punitive damages in tort law, pursues this argument: “it is only if there is a prospect that the damages may exceed the defendant’s gain that the social purpose … is achieved – to teach a wrong-doer that tort does not pay.”47 there are a number of problems with a proposal to extend punitive damages to the law of contract. firstly, there is much controversy about the existence of punitive damages in the law as it stands, which does not make such awards available for breach of contract,48 and so the idea of extending 46 [1974] 1 wlr 1073. 47 broome v cassell & co [1972] ac 1027 at 1130. 48 although a profitable breach of contract could appear to fall within lord devlin’s second category in rookes v barnard [1964] ac 1129 where “exemplary” damages disgorgement damages for breach of contract 100 their availability is problematic. it is notable that the law commission, whilst advocating the extension of punitive damages, specifically limits such extension to “any tort or equitable wrong”49 and excludes breach of contract,50 whilst leaving to the courts the possibility of disgorgement damages for breach of contract.51 a second argument against using punitive damages is the fact that, as considered above, the availability of disgorgement damages is closely attuned to the incentive which the defendant had to breach in the first place. to strip her of those profits is therefore necessary in order for the damages to have a deterrent function. a measure of damages that goes further than that, however, is disproportionate in requiring the defendant to pay more than is necessary to secure deterrence. why give a “windfall” to the claimant? the argument that deterrence is needed in a particular case focuses on the proposition that in such cases compensatory damages are insufficient to represent the lost performance. this would normally mean that specific performance would be granted, but where that is not possible then the breach must be deterred. however, the recognition that disgorgement damages could act as a deterrent against such breaches means that the size of the monetary award to the claimant appears to lose all anchorage to the size of loss. it is understandable that some might strive to prove the presence of loss in all circumstances, as our understanding of what it is to be a “victim” requires harm. in addition, most would accept the warnings of mill, that “the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.”52 this concern is reflected in the statement by glidewell lj in halifax building society v thomas, where he said: may be awarded (where the “defendant's conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff’) lord devlin only refers to teaching “a wrongdoer that tort does not pay”. all invocations of the second category restrict it to tort claims, as in the quotation from lord diplock, above. in ab v south west water [1993] qb 507 the test was explicitly said not to apply to breaches of contract, though the case was later overruled (not on this point) in kuddus v chief constable of leicestershire [2002] 2 ac 122. 49 law commission of england and wales aggravated, exemplary and restitutionary damages (law com no 247, 1997) para 5.44. 50 ibid, para 5.71. 51 ibid, para 3.47. 52 j s mill utilitarianism, liberty, representative government (london: everyman editions, 1910). the denning law journal 101 “the proposition that a wrongdoer should not be allowed to profit from his wrongs has an obvious attraction. the further proposition, that the victim or intended victim of the wrongdoing, who has in the event suffered no loss, is entitled to retain or recover the amount of the profit is less obviously persuasive.”53 even conceding that the claimant could receive more than any conceivable value of the lost performance, the payment of disgorgement damages may still be explained on the basis that “overcompensating the claimant is a lesser evil than leaving the defendant with ill-gotten gains.”54 another way of defending the claimant’s receipt is that we need to give the claimant an incentive to bring these cases to court, in order that the defendant may be stripped of her profit, so that future cases may be deterred. if the claimant could only receive money for provable losses then there may be no point in suing the contract-breaker. as mcinnes has noted “the prospect of a windfall gain motivates him to sue.”55 persuading the claimant to sue is important if we take deterrence of future actions seriously. it is conceded that the value of disgorgement damages is not in any way tied to the claimant’s loss, but appeals to the greater need to protect the institution of contract, and those future contractors who would otherwise be left with no performance. that the law acts through private litigation in order to protect its facilitative institutions in other contexts is demonstrated by the cases of keech v sandford56 and boardman v phipps.57 a fiduciary can be made to account for all profits, in order to protect the equitable institution, even if no opprobrium is attached to the fiduciary’s actions. as was said in 1726: “it may seem hard that the trustee is the only person of all mankind who might not have the lease, but it is very proper that rules should be strictly pursued, and not in the least relaxed; for it is very obvious what would be the consequence of letting trustees have the lease on refusal to renew to cestui que use.”58 this example undermines the arguments of those that suggest that private law should have no interest in issues that are external to the two parties in litigation. there are many other examples where the courts covertly take 53 [1996] ch 217, p 229. 54 a s burrows the law of restitution (london: butterworths, 2nd edn, 2002) p 480. 55 m mcinnes “interceptive subtraction, unjust enrichment and wrongs—a reply to professor birks” [2003] cambridge law journal 697 at 706. 56 (1726) all er rep 230. 57 [1967] 2 ac 46. 58 above n 56. disgorgement damages for breach of contract 102 broader social considerations into account, but the defence of fiduciary duties is one area where the law is happy to acknowledge the influence of questions such as deterrence. where does english law stand? having established a basis upon which the availability of disgorgement damages can be justified, it is necessary to see whether this approach is consistent with the case-law. (a) the law prior to blake it is possible to find many statements in the cases prior to blake to the effect that the purpose of damages is only to compensate for loss.59 however, as birks has pointed out, there are a number of cases where the defendant’s gain formed the basis for the calculation of the damages payable. he identifies such cases as awarding disgorgement damages (which he calls “restitutionary”), but disguising them as compensatory only through “intellectual contortions.”60 the first case is reid-newfoundland co v anglo-american telegraph co,61 where the appellants, telegraph wire operators, took a lease subject to a contractual term that obliged them not to use the wire for the transmission of commercial messages. in fact, they did so use the wire and the privy council held that they were liable to account to the respondents for the profits made, stating that the defendants held the profits as constructive trustees. as birks points out, the trust language of the case was purely instrumental, and ought to have been considered without resorting to such result-based reasoning. the respondents would clearly have been entitled to an injunction to prevent the appellants from misusing the wire. disgorgement damages in the case can be seen as a recognition that there was no way in which damages could be calculated so as to accurately reflect the performance to which the respondents were entitled. this is the kind of breach that needs to be deterred, and so the use of disgorgement damages can be seen as entirely proper. on the other hand, the legal tools available to calculate damages have developed since 1912, and a modern court might see a wrotham park award as an appropriate way to calculate the claimant’s loss in such a case. the next case is that of british motor trade association v gilbert,62 where the claimant had sold a car to the defendant, the contract prohibiting 59 see, for example, tito v waddell (no. 2) [1977] ch 106, p 332 (megarry vc). 60 birks, above n 9, at 430. 61 [1912] ac 555. 62 [1951] 2 all er 641. the denning law journal 103 resale within two years unless the bmta were first given the option of repurchasing the car at the original list price. this was in order to defeat the post-war black market in cars. the defendant then sold the car on the black market, for a substantial profit over the list price, and the claimant sought damages. danckwerts j calculated the damages by reference to the market price that the defendant had obtained notwithstanding the absence of such an open market. birks regards the case as one where an award of disgorgement damages would have avoided the contortions required to give the same sum on a compensatory basis. this case is yet another where there are clear problems in assessing the compensatory sum, due to the presence of a black market, and one where an injunction could have been obtained if requested early enough. the whole point of the contractual provision was to uphold a larger scheme in order to defeat the black market. a deterrent was needed in order to protect the bmta’s scheme and this deterrent was served by the requirement to disgorge profits. later purchasers of the car from the bmta should have known that they had nothing to gain by breaking the contract. the final case referred to by birks is one already mentioned, lake v bayliss,63 where there was an alleged contract for the sale of land, which the vendor then sold to somebody else for an increased price. on the hypothesis that the alleged contract was good, walton j decided that the claimant was entitled to the money received from the second purchase by reason of a constructive trust. it is submitted that the same result could have been reached through the contract itself. it was one that was specifically enforceable, reflecting the law’s acknowledgement that particular pieces of land are unique, so that the promise could only be fulfilled by the conveyance of the land identified. it is therefore appropriate to deter those who would seek to refrain from performance by allowing a claim for disgorgement damages. other cases which need to be considered are cases in which the monetary sum awarded to the claimants was based upon the price that could have been charged by the claimant for the relaxation of the broken covenant. the value of the award has not, in these cases, been calculated by reference to the covenant itself, or the loss to the claimant, but by reference to a percentage of the profit made by the defendant. the clearest case is that of wrotham park estate co v parkside homes,64 where the defendant breached a restrictive covenant not to build on land, thereby making a profit. brightman j gave the claimants a sum equivalent to 5% of the defendant’s profit. we immediately run into the question whether these are properly to be seen as disgorgement damages, restitutionary damages or compensatory damages. edelman regards them as restitutionary damages, seeing the award as reflecting the value of the right which moved between the claimant and the 63 above n 46. 64 [1974] 1 wlr 798. disgorgement damages for breach of contract 104 defendant. the value of that right was calculated by reference to the “sum of money as might reasonably have been demanded by the plaintiffs from [the defendant] as a quid pro quo for releasing the covenant.”65 it would, however, be possible to see the sum awarded as a rough-and-ready calculation of the claimant’s lost bargaining opportunity, and so the award could be seen as compensatory. this compensatory analysis was preferred by the court of appeal in jaggard v sawyer,66 but was rejected by the court of appeal in surrey county council v bredero,67 where the wrotham park award was seen as based upon the defendant’s gain. in blake lord nicholls considered wrotham park to be a “solitary beacon”68 demonstrating that damages are not tied to provable financial loss, and could be measured by reference to the defendant’s gain. the idea that damages are “measured” by reference to profit does not, however, mean that they are given because of the fact of profit. it has been said in a more recent case that: “it is natural to pay regard to any profit made by the wrongdoer (although a wrongdoer surely cannot always rely on avoiding having to make reasonable recompense by showing that despite his wrong he failed, perhaps simply due to his own incompetence, to make any profit).”69 this passage suggests that the sum awarded is attempting to be an objective measure of the loss to the claimant, and is not based on the profit to the defendant. so, even if profit had not been made the court would try to award the same sum for the claimant’s losses. the latest case to consider wrotham park damages also suggests that they are compensatory.70 these cases have centred around restrictive covenants, and these normally entitle the claimant to seek an injunction. in fact, an injunction is precisely what the claimants were seeking in wrotham park itself; bingham j held that he could not grant one, however, as it would be an “be an unpardonable waste of much needed houses to direct that they now be pulled down.”71 the availability of injunctions was one factor, above, which led to the conclusion that some breaches of contract need to be deterred. it can be asked, therefore, 65 ibid, at 815. 66 [1995] 1 wlr 269. 67 [1993] 1 wlr 1361. 68 blake, above n 1, at 283. 69 experience hendrix v ppx enterprises [2003] ewca civ 323, per mance lj at para [26]. 70 wwf-world wide fund for nature (formerly world wildlife fund) v world wrestling federation entertainment inc [2007] ewca civ 286, though the logic of this case is doubted below. 71 above n 64, at 811. the denning law journal 105 why bingham j did not deter future breaches of restrictive covenants by awarding full disgorgement damages. the answer may be that the presence of injunctions is generally sufficient to protect both the individual claimants and the institution of restrictive covenants. the fact that disgorgement damages were not given should not encourage future defendants from thinking that they can ignore the covenants, as claimants already have a powerful weapon to prevent that from happening. another distinguishing factor between these cases and full disgorgement may be the wider view taken of the defendants’ conduct; they did breach their contract, but they did not undermine a wider scheme. in the bmta case above, and blake, the breaches of contract destroyed the integrity of wider contractual schemes set up by the claimants. whilst many claimants who benefit from a restrictive covenant would be willing to relax it for a fee, the government would never let a spy betray confidences and then write about his actions for any amount of money. as we have seen with the cases above, the courts do not always grant specific performance or injunctions, even where damages are insufficient to compensate the claimant. in co-operative insurance society v argyll stores,72 for example, the trial judge refused to require a supermarket to stay open, even though the defendant had contracted to do so. the supermarket was losing money, so it had been shut by its operator, without finding an assignee for the lease. although the court of appeal thought that the order for specific performance should be awarded, the house of lords unanimously held that it should not. key to the reasoning was that such an order would be difficult to supervise, and would be oppressive to the defendants. it can be asked whether disgorgement should have been awarded in such a case. to the extent that the only obstacle to specific performance was practical, it seems that the defendant shouldn’t be allowed to ignore its contractual obligations, leaving the claimant without its performance interest. the court could have calculated how long it would have taken to find an assignee and awarded the losses avoided by the supermarket in that period.73 (b) attorney general v blake the reid-newfoundland and bmta cases described are only weak authority for deterrence-based analysis, as none consider themselves to be giving disgorgement damages for breach of contract. the awards were given either on trust principles or as compensation for breach of contract. attorney 72 [1998] ac 1. 73 in fact, the supermarket did find an assignee prior to the case reaching the house of lords. disgorgement damages for breach of contract 106 general v blake74 is different, however, in that it was the first time that the question of disgorgement damages for breach of contract had been confronted head-on. upon escaping from prison the traitor george blake fled to moscow, and he later wrote an autobiography which included material he had obtained as a spy. such actions amounted to a crime in england, under the official secrets act 1989, but it was clear that a prosecution on that basis would never be possible. the blake case arose because the british government had discovered that blake’s publishers, jonathon cape, had agreed to pay large sums to him as advances of royalties and the government wished to prevent him from obtaining sums that had not yet been paid to him. blake had signed a contract upon entering into the secret intelligence services, which obliged him to seek approval before publishing any material relating to the intelligence service. as he had not received such approval he was clearly in breach of his contract. their lordships, therefore, had to answer the question as to what damages, if any, could be awarded for such a breach. crucial to the case was the fact that the crown was unable to prove any losses. the crown was, however, awarded an account of profits. much of lord nicholls’ leading speech (with whom lords goff, brownewilkinson and steyn concurred) is directed at demonstrating that in other areas of the law compensation is not the only remedy that is available. this leads him to conclude that there is no logical reason why disgorgement damages ought not to be available for some breaches of contract. the award should, however, be given only in “exceptional circumstances” and, whilst deliberately not setting down fixed rules, lord nicholls stated that in future cases: “the court will have regard to all the circumstances, including the subject matter of the contract, the purpose of the contractual provision which has been breached, the circumstances in which the breach occurred, the consequences of the breach and the circumstances in which relief is being sought. a useful general guide, although not exhaustive, is whether the plaintiff had a legitimate interest in preventing the defendant's profit-making activity and, hence, in depriving him of his profit.”75 it is not at all clear what cases he envisages falling within this broad guideline, and it is thus hard to know whether the “legitimate interest” of which he speaks is equivalent to the approach taken in this article. does it reflect an idea that compensatory damages would leave the claimant without 74 above n 1. 75 ibid, at 285. the denning law journal 107 the full equivalent of performance, and that specific performance cannot be granted? the inadequacy of the standard secondary obligations, a feature key to the analysis above does feature prominently in lord nicholls’ reasoning: “normally the remedies of damages, specific performance and injunction, coupled with the characterisation of some contractual obligations as fiduciary, will provide an adequate response to a breach of contract. it will be only in exceptional cases, where those remedies are inadequate, that any question of accounting for profits will arise.”76 lord nicholls then says: “in the same way as a plaintiff's interest in performance of a contract may render it just and equitable for the court to make an order for specific performance or grant an injunction, so the plaintiff's interest in performance may make it just and equitable that the defendant should retain no benefit from his breach of contract.”77 this appears to agree that the protection of the performance interest, as described above, will sometimes justify disgorgement damages. however, if his lordship regards such damages as acting in the same way as specific performance, as suggested by this dictum, it parts company with the deterrence approach. it has been argued that disgorgement damages do not protect the performance interest, but work to deter future breaches. in other words, it has been argued that the goal of the court should not relate to the instant case of profit-making activity, but should relate to the prevention of future occurrences of such breaches. it is too late to protect the performance interest in the case before it, but the court can attempt to ensure that the performance is respected in future instances. it is respectfully submitted that this analysis is more appropriate because there is no apparent link between disgorgement damages and the performance interest, and lord nicholls does not provide one. though their lordships did not award an account of profits on the deterrent basis, the facts of the case clearly fit the approach. damages based on the loss of the crown’s performance interest would have been incapable of proper measurement (blake “caused untold and immeasurable damage to the public interest”78) and it was far too late to issue an injunction to prevent him 76 ibid. 77 ibid. 78 ibid, at 286 (lord nicholls). disgorgement damages for breach of contract 108 from publishing the book. disgorgement damages would have done little to improve the crown’s performance interest in the case, but they can be expected to have done much to discourage future breaches of similar contracts. the potential contract-breaker should know she has nothing to gain and will not bother to write a book from which she cannot profit. (c) post-blake there have been a number of cases79 and one arbitration80 in which the courts have been asked to apply the blake “legitimate interest” test so as to award disgorgement damages for breach of contract. only in esso v niad was the court willing to accede to this request. that case concerned a petrol station that had agreed with esso to sell esso’s petrol at a price fixed by esso, and for which the petrol station owners received price support. they breached this agreement, however, by accepting the price support but selling the petrol above the set price. morritt vc considered the case to come within the guidance given by lord nicholls, as the breaches had been deliberate and had undermined the whole scheme that esso had set up. in addition it was seen as relevant that it would be impossible to prove the extent of the losses sustained by esso.81 so, this case seems to fit neatly into the pattern that ought to give rise to disgorgement damages. damages were impossible to prove, and specific performance was no longer possible. esso’s whole scheme depended upon individual petrol stations living up to their contractual obligations; it was thus important that they be able to deter future breaches of the type found in this case. the arbitration tribunal’s decision, the sine nomine, also fits the approach of this article, as it concerned the breach of contract by the withdrawal from service of a chartered vessel. the contract was a commercial one, and the arbitration tribunal was clear: “there should not be an award of wrongful profits where both parties are dealing with a marketable commodity – the services of a ship in this case – for which a substitute can be found in the market place.”82 in such situations damages would be an adequate substitute for the promised performance and so deterrence is not required. the tribunal’s 79 esso petroleum co ltd v niad ltd [2001] ewhc ch 458; experience hendrix llc v ppx enterprises inc [2003] ewca civ 323; wwf-world wide fund for nature (formerly world wildlife fund) v world wrestling federation entertainment inc [2007] ewca civ 286. 80 ab corporation v cd company ‘the sine nomine [2002] 1 lloyd’s rep 805. 81 esso v niad, above n 79, at para [56]. 82 sine nomine, above n 80, at para [10]. the denning law journal 109 decision also gives weight to one of the underlying notions of contractual promises, that the promise does not entitle a party to performance, within english law, where the equivalent of that performance can be provided by a monetary award. it is taken as granted by the tribunal that “[i]nternational commerce on a large scale is red in tooth and claw”,83 and the tribunal does not appear to see such deliberate breaches as something that need to be deterred. the court of appeal in experience hendrix84 rejected the claimant’s request for full disgorgement damages on the basis that there was no analogy between blake’s secret intelligence services contract and an agreement as to the retail rights for the songs of jimi hendrix. instead the court of appeal granted an award of damages based on a reasonable sum that could have been obtained for the relaxation of the contract, on the wrotham park line of authority. it appears from the way in which the matter is approached that the court viewed blake’s full disgorgement of damages as on a sliding scale with wrotham park damages, based on a proportion of the profits made. the question that tips the balance from one to the other is apparently the question of exceptionality. this idea of a sliding scale must be challenged. wrotham park damages are based on a right of the claimant’s which has not been respected, and represent payment for that infringement. full disgorgement, however, rests upon the notion of deterrence, thus depending on a completely different rationale. the use of wrotham park damages in experience hendrix can, however, be seen as a decision that in the case such damages do represent the full performance interest. the final case to consider full disgorgement damages involved the use of the initials “wwf” by the world wrestling federation.85 litigation dating back to 2001 had established a breach of contract by the federation, and the claimant owners of the trademark had failed in a previous attempt to seek full disgorgement damages. returning to the high court in 2006 the claimants sought wrotham park damages, and their claim was allowed to proceed. the defendants appealed on the basis that any claim for wrotham park damages should have been brought at the same time as the earlier claim for full disgorgement damages. chadwick lj gave the judgment of the court of appeal, in which he asked whether the two types of damages have the same juridical basis, the defendants saying that they are both gain-based. after analysing the wrotham park line of authority his lordship held that they should be treated as 83 ibid, at para [9]. 84 experience hendrix llc v ppx enterprises inc [2003] ewca civ 323. 85 wwf-world wide fund for nature (formerly world wildlife fund) v world wrestling federation entertainment inc [2007] ewca civ 286. disgorgement damages for breach of contract 110 compensatory.86 he did, however, find in favour of the defendants, holding that the blake award of an account of profits was also compensatory. he justified this on the basis that both awards become available where loss cannot be identified, so the courts make a “flexible response to the need to compensate the claimant for the wrong which has been done to him.”87 in many ways chadwick lj’s analysis matches that of lord scott’s argument, considered above.88 whereas lord scott accepts that his analysis contradicts lord nicholls,89 however, chadwick lj suggests that he is following the blake case. treating the blake case as the application of compensatory principles does seem to fly in the face of much of lord nicholls’ language. his lordship’s speech focuses on george blake’s gain, not the security services’ loss, and there is no attempt to marry the loss to the award. lord scott, in opposing damages that are not compensatory, calls upon us to “call a spade a spade.”90 to call blake “compensatory” fails to do so. conclusion it has been argued that the disgorgement damages can be seen as having a principled basis. this basis depends on the idea that the generally applicable secondary remedies, of damages backed-up by specific performance, are geared towards the protection of the promisee’s performance interest. in some situations, however, those awards fail to live up to the performance interest, and in such cases deterrence is required. disgorgement damages are the way in which this deterrence is effected. it is far from clear that the solution laid out in this essay is the one operating on the minds of the judiciary when they award disgorgement damages. it is submitted, however, that the analysis used herein is in line with a proper understanding of the performance interest, which is engaged whenever a contract is formed with english law. admittedly the law can change direction on such matters, but the israeli solution which creates a nearabsolute obligation to perform has not been accepted in english law. at present a breach of contract generates the obligation to pay damages as an alternative to performance. only where this monetary substitute fails to be an adequate substitute for performance, and only where performance itself is impossible to achieve, are disgorgement damages supportable. 86 ibid, at para [57]. 87 ibid, at para [59]. 88 above n 3. 89 ibid, at 468: “lord nicholls, while approving [the wrotham park] cases, regarded them as an exception to the general rule that damages should be compensatory. i respectfully disagree.” 90 ibid, at 469. microsoft word 23 4 scutt v4.doc 65 the denning law journal 2011 vol 23 pp 65-91 police, prosecution, courts and wartime demonstrations: adela pankhurst in the australian high court jocelynne a scutt∗ abstract rights of assembly and freedom of speech are a rich ground for decisionmaking by police, prosecutors and courts in determining a balance with obligations of authorities to keep the peace and prevail against disorderly conduct or riot. recent claims of abuse of police powers through “kettling” have reached the european court of justice. these cases directly address the scope and exercise of police authority in maintaining order during demonstrations. yet not only police powers are in issue at times of political disputation. two cases heard early last century by the australian high court illustrate the way in which both the decision to prosecute and judicial decision-making may be influenced by socio-political considerations, particularly in time of war. pankhurst v porter and pankhurst v kiernan saw adela pankhurst, youngest daughter in the redoubtable pankhurst family of suffragette fame, testing the limits of the law during the struggles to ensure that sending wheat abroad to feed the troops would not justify pricing bread out of the reach of ordinary, working-class households. the success of the appeal in pankhurst v porter exposed error in the prosecutorial process. the failure of the appeal in pankhurst v kiernan exposed flawed reasoning in the majority opinion and the strength of the dissenting judgment in it’s application of the law to the facts and the need to maintain objectivity or at least neutrality as to the particular appellant. introduction engagement in war almost inevitably triggers developments in the law relating to freedom of association and the right to demonstrate. most recently in the united kingdom this has centred on demonstrations against the war in ∗ the hon dr jocelynne a scutt, barrister & human rights lawyer, visiting fellow, lucy cavendish college, university of cambridge, visiting professor, university of buckingham. adela pankhurst in the australian high court 66 iraq and invasion of afghanistan, particularly where “kettling” has been employed by police to “manage” crowds. the use of police cordons to contain large numbers of protestors, so as to prevent their leaving an area, sometimes for hours, has been asserted as false imprisonment and/or a breach of the european convention on human rights (the convention). the convention asserts that there is an absolute right not to be deprived of liberty unless particular, well-defined situations or circumstances exist. the question therefore arises as to whether kettling constitutes unlawful conduct on the part of police. in austin v metropolitan police commissioner1 the issue arose in the context of anti-capitalist protests in london in 2001. as a precursor to cases involving kettling and anti-war protestors, the austin case has gone through the united kingdom courts to the european court of justice, the argument centring upon whether such containment can be justified where police believe all held inside the cordon are demonstrators poised to commit a breach of the peace. in 2007 the court of appeal upheld the first instance determination that the police action was justified through their perception of “imminent risk”. kettling constituted deprivation of liberty amounting to false imprisonment, said the court, unless the threshold test of “immediate risk or imminence” was met. once immediate risk or imminence was found, then, so long as the force was proportionate to prevent a breach of the peace, kettling was lawful. in 2009 this approach was upheld by the house of lords.2 however, the argument has not ended there. the issue is going on appeal to the european court of justice, a principal contention being that if used effectively, the public order act 1986 eliminates the need for kettling so that the imprisonment of demonstrators inherent in this “management” method remains unlawful, except in exceptional circumstances. if, contrary to or at the same time as applying the public order act, police planning includes an intention to contain demonstrators in cordons depriving them of the right to move, this will eliminate the contention of “imminence” and “risk”. it is not only in contemporary times, however, that the use and potential abuse of institutional power have arisen for legal consideration. austin illustrates the need for courtroom surveillance of the action of policing authorities in handling of demonstrations. there, the focus was on action that may ignore or overlook existing rights of police control under the law, when 1 [2009] ac 564, [2009] 3 all er 455. 2 austin v metropolitan police commissioner [2009] ukhl 5. see also h fenwick “marginalising human rights: breach of the peace, ‘kettling’, the human rights act and public protest” [2009] pl 737; r smith “rights and wrongs: turning off the kettle: the police practice of kettling protesters is overdue for review” (2011) ls gaz 6. the denning law journal 67 authorities seek to extend police power and lawful state action beyond that required for maintenance of peace and good order. yet problems go beyond police power, as two cases, almost one hundred years ago, illustrate. pankhurst v porter3 and pankhurst v kiernan4 confirm that scrutiny must extend to both the determination to prosecute and judicial decision-making. both cases were heard by the australian high court in 1917. in pankhurst v porter,5 the question focused upon whether prosecution under a provision of the federal defence laws was sound. here, the role of the prosecutor was under review. in pankhurst v kiernan,6 the challenged charge was again under federal defence law. however, here, the question was whether the court itself might, in its judgment, be swayed by socio-political circumstances to make what was, ultimately, an unsustainable decision. analysis of the judgments of the majority and that of the lone dissenter indicates that just as police and prosecutors may be swayed by socio-political circumstances in times of upheaval and unrest, judges are not immune. pankhurst v porter – the decision to prosecute in england, adela pankhurst worked as a trainee teacher in an economically impoverished area before joining her mother emmeline pankhurst and sisters christabel and sylvia in the suffragette cause.7 her arrival in australia did not dissuade her from agitation. working-class poverty was at the nub of the demonstration bringing her before the victorian court of petty sessions in august 1917. according to the police prosecutor, “between five and six thousand” attended the rally, a protest against the rising price of bread. wheat was being sent to europe to feed the allied troops, affecting domestic supply. the magistrate was told that “shortly after three o’clock” on the day in question, adela pankhurst, alice suter and jennie baines, together with “several other women” appeared in the treasury gardens.8 according to the police prosecutor, adela: 3 [1917] hca 52; (1917) 23 clr 504 (2 october 1917). 4 [1917] hca 63; (1917) 24 clr 120 (29 november 1917). 5 [1917] hca 52; (1917) 23 clr 504 (2 october 1917). (page citations are from the [1917] hca 52 online report.) 6 [1917] hca 63; (1917) 24 clr 120 (29 november 1917). (page citations are from the [1917] hca 63 online report.) 7 see v coleman adela pankhurst the wayward suffragette (melbourne: melbourne university press, 1996) p 28ff. 8 on the disappearance of alice suter from the historical record – apart from her being immortalised in newspaper reports and the commonwealth law reports account of the appeal, see j a scutt “the woman who wasn’t there: alice suter, adela pankhurst in the australian high court 68 “… got up on a seat and addressed the people assembled, and told them all to follow her to parliament house in defiance of the police and to break in if necessary, and see what billy hughes [the prime minister] was going to do to get cheaper food for the starving people.”9 thereupon: “the crowd surged round the seat and the said adela constantia mary pankhurst was pushed off it, and then alice suter got up on the seat and commenced to address the people assembled, and she in turn was pushed off the seat, and also jennie baines was pushed off the seat, and then adela constantia mary pankhurst and alice suter and jennie baines went towards the steps of parliament house arm-in-arm, and followed by the crowd of people.”10 police then arrested the trio, who were prosecuted under regulation 27 of the 1916 war precautions (supplementary) regulations, made on 14 august 1917. regulation 27 being used against protestors for the first time meant the high court faced a test case. the regulation stated: 1) it shall not be lawful for any number of persons exceeding twenty to meet in the open air in any part of the proclaimed place for any unlawful purpose or for the purpose or on the pretext of making known their grievances or of discussing public affairs or of considering or of presenting or preparing any petition memorial complaint remonstrance declaration or other address to his majesty or to the governor-general or to both houses or either house of the parliament of the commonwealth. the treasury gardens was a “proclaimed place”. hence, the court had to address the words immediately following, the charge alleging the woman had, together with others (exceeding the requirement of “twenty”) met “on the pretext of making known their grievances …” justice barton, with whom the other judges (isaacs, higgins, gavan duffy, powers and rich jj) agreed, said the court had to give regard to the context in which the words appeared. the drafting required that the phrase “for any unlawful purpose or for the purpose mary lamb and shakespeare’s sister” the rationalist, winter issue, july-august 2011. 9 [1917] hca 52, at 2. 10 [1917] hca 52, at 2. the denning law journal 69 or on the pretext …” must be considered “in whole”.11 was “there … evidence which should have satisfied the magistrate, or upon which the magistrate might properly have been satisfied, that the appellant was one of twenty or more persons who had assembled “on the pretext of making known their grievances”.12 barton j said he could “imagine a case where the word ‘pretext’ would mean the real or ostensible purpose”.13 in the present case, however, “pretext” was “by the context clearly distinguished from other words in the regulation”. first, the words “for any unlawful purpose” appeared, clearly meaning a “real” object, being an unlawful one. next came the words “or for the purpose”, with the word “purpose” being “prima facie … used in the same sense as before, that is to say, as meaning the real purpose”: for example, a real purpose of making known grievances.14 immediately after, came the words (employed in the informations against all three) “or on the pretext”. as to this, barton j said: “…as a matter of construction the collocation in which the word ‘pretext’ is used shows that it is used in contradistinction to the word ‘purpose’. in that case the words ‘for the purpose or on the pretext’ indicate that the persons who have assembled have done so either for the real purpose of making known their grievances or on the pretext, and not really with the purpose, of making known their grievances.”15 the regulation used “purpose” and “pretext”. therefore, he observed (“or” making them alternatives), it was necessary to find separate meanings for those words. it could not be said, in the context, that “pretext” and “purpose” were identical: “pretext” did not have the meaning of “purpose”: “being of that opinion, what is the next inference? when persons have assembled on the ‘pretext’ of making known their grievances, and not for the real purpose of making them known, there is a sham. there is, in such a use of the two terms, a concealment, or a screen, connoted by the word ‘pretext’ which is not connoted by the direct and frank word ‘purpose’. reading the regulation in that way, as i think we must, the question is what evidence there is here that the purpose for 11 [1917] hca 52, at 1-2. 12 [1917] hca 52, at 2. 13 [1917] hca 52, at 2. 14 [1917] hca 52, at 2. 15 [1917] hca 52, at 2. adela pankhurst in the australian high court 70 which the persons were assembled was not the true purpose; in other words, that they were assembled on a mere pretext.”16 to his own question: “does that evidence show that the people, however wrong their object, were there holding forth a sham as the reason of their meeting when their real purpose was a different one?” barton j said: “i do not think that, whatever may be the fact, the evidence shows that. this court, it must be remembered, is here not for the purpose of expressing its opinion upon the propriety or impropriety of the conduct of the appellants, but to determine the meaning of the regulation, and whether the magistrate was justified in finding that the charge with which the appellants have been confronted had been proved. i do not think that anyone hearing the evidence which i have just read would say that there is anything in it upon which the ordinary reasonable mind could conclude that the persons at the meeting were there, not with the object of finding out from the authorities what steps were to be taken to provide cheaper food, but for an ulterior purpose which the cry for cheaper food was merely used to disguise. they are not shown to have been putting forward a sham, and this court is concerned only with the matter of proof. it seems to me that if we were to hold that the object of these persons was falsely stated, that they had some ulterior object such as to break the law or gain notoriety, we should come to a conclusion unsupported by the evidence. we cannot do that.”17 barton j then summed up: • in the regulation “pretext” has a different meaning from “purpose”; • “purpose” refers to the real object; • “pretext” refers to the professed and not to the genuine object, or to something done under a screen, or a sham.18 therefore, the convictions of adela pankhurst, alice suter and jennie baines, being founded upon charges of breaching the regulation by engaging in a “pretext”, should be quashed. nonetheless, said barton j, had it been alleged in the information that they “were assembled ‘for the purpose’ of 16 [1917] hca 52, at 1. 17 [1917] hca 52, at 2. 18 [1917] hca 52, at 2. the denning law journal 71 making known their grievances”, then on the evidence before the court it was possible that they “might have been properly convicted”. pankhurst v kiernan judicial decision-making on 9 october 1917, a police magistrate at melbourne petty sessions sentenced adela pankhurst to four months imprisonment with the option of a bond whereby she would undertake not to offend against the unlawful associations act 1916-1917 (cth) nor attend to speak at any meeting of more than 15 persons without the consent, in advance, of the federal attorneygeneral or solicitor general or a police magistrate. initially, pankhurst’s defence counsel said she would comply with these conditions. upon her subsequent appearance she opted for prison.19 adela pankhurst was charged that on 20 september 1917 she had, at yarraville in the western suburbs of melbourne, “encouraged the injury of property”. the information stated that this was contrary to section 4 of the unlawful associations act: “whoever advocates or encourages, or incites or instigates to the taking or endangering of human life, or the destruction or injury of property, shall be guilty of an offence. penalty: imprisonment for six months.” before an audience numbered by police at some 2,000, pankhurst delivered a speech at a local yarraville hall, held to assist dependants of men affected by industrial upheaval. constable mcleod, attending with constable kiernan, recorded the speech in shorthand, putting in evidence parts which, he told the magistrate, constituted “only a small part” of what adela pankhurst had said. he added that so far as he knew no one had as a result of the speech destroyed any property. although shorter and not identical with those of his fellow officer, constable kiernan’s notes were in evidence too. he said he “missed more” and could write sentences “here and there” only, so had not been able to commit as much to writing as constable mcleod. this was the prosecution evidence. the defence called no evidence.20 as in pankhurst v porter, the same six judges sat: barton, isaacs, higgins, gavan duffy, powers and rich jj. two grounds were addressed: 19 argus, 21 september 1917, p 1. 20 pankhurst v kiernan [1917] hca 63; (1917) 24 clr 120 (29 november 1917). (page citations are from the [1917] hca 63 online reference.) adela pankhurst in the australian high court 72 • whether section 4 of the unlawful associations act was valid;21 and • whether the evidence sustained the proposition that adela pankhurst “advocated or encouraged, or incited or instigated … the destruction or injury of property”. all judges agreed that on the evidence the last ground could not succeed. as to the first, higgins j alone dissented. in a separate judgment, isaacs j agreed with the majority, whilst in short concurrences, powers j stated his agreement with barton and isaacs jj, with gavan duffy and rich jj each relying upon an earlier case, farey v. burvett.22 as to advocating, encouraging, inciting or instigating destruction or injury of property, the last ground, barton j referred to r v most,23 where in the context of criminal libel – seeking to stir others to murder the reigning heads of europe – huddleston, b said “encourage” encompassed “to intimate, to incite to anything, to give courage to, to inspirit, to embolden, to realise confidence, to make confident”. barton j said these words were not exhaustive, nor in any sense a statutory definition. they might provide assistance in determining what the legislature meant in using the word “encourage” but in any event, he went on, “the word ‘encourage’ … is plain enough and needs no definition”: “the applicant's speech cannot be read without perceiving that it was an encouragement, within the meaning of the words quoted, of the injury of property … the applicant suggested, and tried to induce, the continuance of window-breaking. she showed her approbation of – nay, her exultation in – the doing of damage to the value of £5,000 by the smashing of windows on the previous night. if that was not encouragement, what was it? … after urging that the makers of excess profits could ‘easily stand a strike’, and that the government was careless so far as she and her hearers were concerned, she said these words: – ‘we had to adopt other methods; you saw the results of it last night. panes of glass smashed, – anyway glass windows have got no feeling whatever. now, friends, if we can hold out we feel we have got the government in a cleft stick ... the very fact that the people know that they’ (the government) ‘are going to get rid of me is stirring them’ (the people) ‘up to more efforts ... there was £5,000 worth of damage done, and five persons arrested. one person for 21 a third ground, that the prosecution and conviction breached section 80 of the constitution – the right to trial by jury, was not pursued by pankhurst’s counsel. 22 farey v burvett [1916] hca 36; (1916) 21 clr 433 (8 june 1916). (page citations are from the [1916] hca 36 online reference.) 23 r v most (1881) 7 qbd 244. the denning law journal 73 every £1,000 worth of damage. supposing he’ (mr hughes [the prime minister]) ‘does send some of us to gaol, there will be others to take their places, and it will take a year or two to build gaols to hold us’.”24 pankhurst had, according to the record, told the crowd that if the military were called out, “the chances were they would shoot the other way, and if mr hughes [the prime minister] got some of them to shoot the result would be a failure to obtain recruits”. then: “you touch their pockets and you will immediately begin to get something. therefore, friends, we say to keep on in that way ... the time is coming when the workers are going to say: – we will no longer allow our wealth to be in the hands of a few private individuals. we will no longer allow production to be carried on for profits.”25 these extracts “speak for themselves”, said barton j. finding that “encouragement to destroy or injure property” was clear, he concluded: “i decline to give serious consideration to the view that there was not evidence on which the police magistrate could properly find that the utterances of the applicant amounted to the forbidden encouragement within the meaning of the section. they were much more than ample to sustain such a finding.”26 the case then turned on section 4: to sustain the conviction, the law under which pankhurst was gaoled had to be within the power of the federal parliament. the commonwealth relied on section 51 of the constitution and particularly the defence power: “the parliament shall, subject to this constitution, have power to make laws for the peace, order, and good government of the commonwealth with respect to: …(vi) the naval and military defence of the commonwealth and of the several states, and the control of the forces to execute and maintain the laws of the commonwealth; …(xxxix) matters incidental to the execution of any power vested by this constitution in the parliament or in either house thereof, or in the 24 [1917] hca 63, at 2. 25 [1917] hca 63, at 2. 26 [1917] hca 63, at 3. adela pankhurst in the australian high court 74 government of the commonwealth, or in the federal judicature, or in any department or officer of the commonwealth.” in upholding the conviction and thereby finding that the commonwealth had the power to make the relevant law, barton j relied upon farey v burvett (the bread case).27 regulations and an order made under the war precautions act 1914-1916 (cth) fixed the maximum price of bread in proclaimed areas. in farey v burvett the high court, a full bench constituted by the same six judges together with griffith cj, said (albeit higgins j held more narrowly) the order was valid under the defence power. the provision in question was “thought desirable” by the governor-general in council “for the more effectual prosecution of the war or more effectual defence of the commonwealth or of the realm, prescribing and regulating … (b) the conditions (including times, places, and prices) of the disposal or use of any property, goods, articles or things of any kind; and (c) the requisitioning of any goods, articles, or things of any kind”. in revisiting farey v burvett, barton j said that the while an act or regulation “might not be a measure of defence in time of peace, it might be such a measure in time of war”. he referred to the present war, saying that in it “not merely armies but whole nations are engaged in a supreme struggle, which so far as this empire is concerned is a struggle for the preservation of liberty”. he concluded it would be “impossible to say that in such a struggle every part of the empire was not entitled”, and, indeed, even called upon, “to put forth the whole of the resources of its people in men, money, or property, for its self-preservation”. hence: “if a measure were capable of contributing to the common defence, it was for the court to affirm that capability … [w]hether it did so contribute was a question for the … legislature. if that body came to such a conclusion by passing an act, then the function of this court in deciding whether it was constitutionally valid was to say whether the form of law had been given to something which was capable of assisting in defence … in the particular case a measure for the conservation of the food supply, or one for the prevention of inordinate profits on its sale, or one for the better provisioning of the people, might or might not be necessary. the court was to say whether in conceivable circumstances of war it might be so … there 27 [1916] hca 36; (1916) 21 clr 433. in the judgments, farey v burvett and the bread case are used interchangeably. the denning law journal 75 its functions stopped. whether it was in fact necessary or wise in the particular instance was for the legislature to determine.”28 this principle was not “confined to questions of food supply” but extended to “all the resources of a people” which may need, in wartime, to “be placed by parliament at the disposal of the government for purposes of defence if they are capable of subserving those purposes”. the commonwealth parliament was, barton j said, competent to pass “such legislation as may prevent any hampering or dislocation of the work of effectively prosecuting the war, that is, the defence of the country”, and it is “not difficult to see that internal disorder may have such results”. the destruction of property came within this competency for it “may diminish the resources of the people applicable to their defence”, just as may “the wilful taking or endangering of human life”.29 in adela pankhurst’s case, however, there was no issue of punishing such “inroads upon life or property”. rather, it was about “the advocacy or encouragement of, and incitements or instigations to, these acts”. this, concluded barton j, is a matter of public disorder and incitement to public disorder: “the preamble [to the provisions in question] asserts that an association known as the industrial workers of the world and members thereof have been concerned in advocating and inciting to the commission of divers crimes and offences, and that it is expedient for the effective prosecution of the present war that laws shall be enacted for the suppression of such practices. it is to continue in force for the duration of the present war and a period of six months thereafter, but no longer … the industrial workers of the world, and also any association which, by its constitution or propaganda, advocates or encourages, or incites or instigates to, the taking or endangering of human life, or the destruction or injury of property, are declared to be unlawful associations … other sections deal with … promotion of actions calculated to interfere with the production, manufacture or transport of troops, munitions of war or foodstuffs; … the addition of deportation [as a] punishment …; the printing or publishing of any writing encouraging, &c., the taking or endangering of human life or the destruction or injury of property; and … the making of regulations not inconsistent with the act for giving it better effect.”30 28 [1917] hca 63, at 2. 29 [1917] hca 63, at 3. 30 [1917] hca 63, at 4. adela pankhurst in the australian high court 76 under the act, “the associations declared unlawful” and “the things made punishable” were, for barton j “… such as may easily tend in greater or less degree to the hampering or dislocation of the proper conduct of the defence of australia to the extent that such defence is in the hands of parliament or government”.31 in his view, the high court’s responsibility was to say “whether they are capable of so tending”. if “yes”, then any enquiry by the high court “into the necessity, or the propriety, or the wisdom of the action” of the law passed “in affirmance of the fact of such tendency or in provision of means for its suppression” would be “trespassing” upon the legislative realm. as the provisions of the unlawful associations act were “calculated to aid, be it much or little, the provisions in the war precautions act” and so “to aid the purpose of defence”, they were valid.32 hence, for him – and the judges agreeing with him, pankhurst was rightly convicted and imprisoned. yet it is the clash between isaacs and higgins jj which proves the most telling. albeit it was crucial, barton j did not asked whether the actual focus of the advocacy – smashing windows – was relevant to the defence power. isaacs j did. nevertheless for him, too, there was “not the least doubt” as to the validity of section 4.33 saying the position of pankhurst’s counsel was “hopeless”, isaacs j too, found both legal and practical support in farey v burvett:34 • first, in its reliance upon the english privy council case the zamora;35 • secondly, in its reference to the us federal food control act – which penalised the offence of “knowingly to commit waste, or wilfully to permit preventable deterioration of any necessaries in or in connection with their production, manufacture or distribution”, and “any agreement to exact excessive prices”.36 the difference between isaacs and higgins jj centred on the terms of section 4 in its application to adela pankhurst’s rabble rousing, and the scope 31 [1917] hca 63, at 4. 32 [1917] hca 63, at 6. 33 [1917] hca 63, at 5. 34 bread case [1916] hca 36; 21 clr 433 (also cited as farey v burvett). 35 in the matter of part cargo ex steamship zamora (appeal no 109 of 1915) v the high court of justice probate, divorce and admiralty divisions (in prize)(the zamora) [1916] ukpc 24; [1916] 2 ac 77 (7 april 1916). 36 [1917] hca 63, at 5. the denning law journal 77 of section 51 (vi) and (xxxix) taking into account the division of power between the commonwealth and the states. isaacs j sought to support the provision by reference to “the general intent of the whole instrument, by what precedes and what follows it …” which, he said, was “quite distinct from the ordinary criminal law of the state”. consistent with isaac j’s view that the section was valid and properly applied against adela pankhurst, this distinction was crucial – and isaacs j could not avoid it, for generally both property and crime are a matter for the states, not for the commonwealth. isaacs j went on, therefore, to observe that the act was “directed primarily against unlawful associations”, but “directed against unlawful associations because of aims and objects inimical to the national capacity for defence”: “that means that what the act really strikes at as dangerous to the general welfare is the system, or method, or principle, or doctrine, or propaganda, or whatever it may be called, by which human life and property are to be injured or destroyed, not as an isolated instance disconnected with every other criminal act, but as a systematic course of conduct, for the attainment it may be of desired political or economic or social ends.”37 for isaacs j, nothing illustrated this better than pankhurst’s own language. he said that the section “no doubt includes incitement to destroy or injure in particular instances”: “[i]t would reach to an incitement to kill one man or break one window; 73but that would be because the incitement there is part of a general plan or system. it would be as distinct from an ordinary isolated crime dependent on its own origin and confined to its own circumstances, as the instances of german atrocities forming part of their national system of “frightfulness” are distinct from the ordinary local incidents of war. the wholesale smashing of windows was seen by [pankhurst] to be – and, indeed, it is on the surface – a thing which must surely lead to public insecurity and to the eventual hampering of all transactions in even the necessaries of life, and consequently, if farey v burvett is good law, this is a much more obvious case for federal interference.”38 finally, for isaacs j, the section showed its “clear design” for “the preservation of australian life and property generally”. these being “obviously essentials for national defence”, the contention of invalidity must 37 [1917] hca 63, at 5-6. 38 [1917] hca 63, at 6. adela pankhurst in the australian high court 78 fail. as her language “clearly … fell within it”, therefore, so should the appeal: “if any question were possible as to any particular suggested property being necessary or not, i think the principles laid down in the bread case …, and still more authoritatively affirmed by lord parker for the privy council in the case of the zamora …, would furnish a complete answer.”39 yet the majority judgment must be looked at against higgins j’s dissent. having agreed there was evidence on which the police magistrate “could fairly find that [pankhurst], by her speech, encouraged people to injure property by breaking windows, &c., in melbourne”, higgins j said that for the law’s purposes, “it does not matter that [she] hoped to force attention to the needs of the poor”. however, there was substance in the ground that section 4 “was ultra vires”. the federal parliament, he observed, has no power to make laws regarding property, or for the protection of property: private property was a matter for state laws.40 nonetheless, it was “urged that the section is valid under the [defence] power, and with respect to ‘matters incidental to the execution’ of this power”. but what connection did smashing windows have with defence of the nation? higgins j said: “at first sight, the argument is startling to common sense. how can an act providing for the protection of private windows from unruly citizens be treated as an act ‘with respect to’ the defence of the commonwealth – defence from the foreign enemy and his adherents? the property in question is not even property of the defence department. no doubt every good thing that we get under our internal policy contributes to the strength of the nation against aggression. civic peace contributes; but so do good sewerage, good education, a good tramway system. but acts on these subjects are surely not acts 39 [1917] hca 63, at 6. the zamora [1916] ukpc 24; [1916] 2 ac 77 involved questions of “prize” in the taking into possession of a neutral ship transporting cargo to germany (during the first world war), part at least thereof which was munitions or products suitable to the war effort. the privy council was concerned with matters of international law and the “prize court”, its jurisdiction, power and the scope of various regulations and orders. there was no question as to state versus federal laws or matters going to the division of powers in a federal system. the case canvassed the scope of powers in time of war and the nature of defence in the context of international and “prize” law. 40 [1917] hca 63, at 6-7. the denning law journal 79 ‘with respect to ... the naval and military defence of the commonwealth’. the connection is too indirect and remote.”41 turning to farey v burvett, he noted that the finding of validity lay in the war precautions act 1914-1916 (cth) insofar as it provided, by regulation, “limits for the price of bread in certain populous localities”. this turned on the nature of war: “defence is a matter of force – force to be used against the enemy; and if that force is likely to be diminished by scarcity of bread, by excessive prices of bread, or dissipated in the riots which so commonly accompany the want of bread, it may well be a defence measure to keep the price of bread low. as in the case of a besieged city it may well be necessary or expedient, for the purposes of defence, to provide for sufficient food for all the inhabitants, and at fixed prices. moreover, the very sub-section of the war precautions act which gave the power to make regulations fixing prices … specified ‘the more effectual defence of the commonwealth’ as an object to be aimed at by the regulations. in short, parliament treated the fixing of prices as conducing to the defence of the commonwealth; and, in my opinion, we are bound to accept the statement of parliament that it does so conduce unless we can see that the statement is obviously untrue or absurd.”42 that the federal parliament in the bread case legislated expressly “with respect to” defence was compelling. explicit reference to “defence” eliminated any enquiry by the high court as to “whether the measure is effectual or futile, wise or unwise”. that was for the parliament. neither, he said, was it for the high court “to listen to evidence as to the necessity of the measure under the circumstances”.43 this did not mean that the absence of such “defence” reference was fatal. still, the ordinary rules of interpretation required that it be “clear on the face of the instruments” that the parliament intended: • that the price of bread should be fixed for the purposes of defence; and • that the donee meant to use the power conferred by section 51(vi). 41 [1917] hca 63, at 6-7. 42 [1917] hca 63, at 7. 43 [1917] hca 63, at 7. adela pankhurst in the australian high court 80 when, “under ordinary circumstances” a law is within the competence of state parliaments alone, said higgins j, yet the federal parliament passes legislation entering the state’s sphere, “clarity on the law’s face” is “all the more vital”.44 in the present case, he pointed out, state legislation already existed. under the federal act, the penalty was six months’ imprisonment. under the crimes act 1915 (victoria), as an “abettor or counsellor of a misdemeanour”, pankhurst could have suffered two years’ imprisonment. so “not only could the states make laws with respect to protection of properties within their state boundaries”; they had done so. this contrasted with the position vis-à-vis bread: the states could not systematically regulate bread prices throughout australia. to control them across the country, bread prices would have to be framed on “some uniform, general scheme” – which the federal parliament alone could do.45 distinguishing bread prices from property protection, higgins j reemphasised the need for a link between the defence power and the provisions: “the connection between the power to defend australia and maintaining the fighting force of australia in full strength by regulations as to bread is direct and obvious; the connection between the power to defend australia and the protection of property in the several states from injury is indirect and remote.”46 saying he did not now decide one way or the other, higgins j observed that if the federal parliament had replicated the war precautions act wording – expressly stating that the provision in question was for the “defence” of australia, then it may be that the high court could be bound to accept it. but parliament had not. turning to what the act did say, higgins j noted that the reference to the industrial workers of the world (iww) had no application to adela pankhurst, for she was not a member of the iww and it was not suggested she was: “but the point is that parliament has not purported to legislate under the defence power … it purports, indeed, to make the law “for the effective prosecution of the present war”; but that is not necessarily the same thing. for instance, one can conceive of a position in which all danger to australia has vanished, and yet the war – the same war – is still being prosecuted for the purpose of obtaining constantinople for the greeks or the russians, or jerusalem for the jews, or dalmatia 44 [1917] hca 63, at 7. 45 [1917] hca 63, at 7. 46 [1917] hca 63, at 8. the denning law journal 81 for italy. for aught that appears, the draughtsman may have thought that the constitutional limitations were suspended during the war, and that any act aimed at the effective prosecution of the war would, under all circumstances and for all purposes, be treated as valid. but the constitutional limitations are not suspended; we have to decide in accordance with the constitution …”47 as to the majority’s reliance on farey v burvett, higgins j pointed out that in deciding that case, and still, for him “the greatest care is needed in watching the attempts to extend the limits” of the defence power. there was “no reason whatever” to doubt the “propriety” of the decision, but the case did not lay down “the doctrine that any law … the federal parliament may make on any subject in time of war is valid”: “the federal parliament is not empowered by the constitution to make any law that it likes for ‘the peace, order, and good government of australia’; but it is empowered to make any law for the peace, order, and good government of australia ‘with respect to ... the naval and military defence of the commonwealth’.”48 in farey v burvett he had “applied his mind” to the three steps there under consideration, namely, act, regulation and order: “the net result was that the price of bread was fixed, and under the authority of parliament legislating with respect to defence. power was conferred on the governor-general to make regulations ‘for the more effectual prosecution of the war, or ‘the more effectual defence of the commonwealth’ as to (inter alia) ‘the conditions (including times, places and prices) of the disposal or use of any property goods articles or things of any kind’.”49 if the federal parliament sought to pass a “private property protection” law, it must “at the very least”, show by “express words or necessary intendment” that it “regards the law as necessary or expedient for the distinctive object of the defence of australia”; namely, that “it is applying its mind to the defence of australia”. a war for the defence of australia could take place outside the country and “in distant part”, or in defence of “the empire and of the world”, so that a law could in such circumstances be legitimate under the defence power. however, such a law might be exercised 47 [1917] hca 63, at 8. 48 [1917] hca 63, at 9. 49 [1917] hca 63, at 9. adela pankhurst in the australian high court 82 lawfully or unlawfully. if exercised unlawfully, then the execution of such law would be invalid. this is what made the distinction between the present case and the bread case: “in the latter, the question was one of an executory power, ‘perhaps too wide in its tenor’ but which was exercised lawfully (so far as it appeared on the record) by the donee of the power, namely the governor-general. in the former (the present case), the high court was ‘dealing with a power executed – executed by parliament, for a purpose which is not, taken by itself, sufficient in law under all circumstances – ‘the effective prosecution of the war’.”50 therefore, said higgins j, the conviction must be quashed. with higgins j in the minority, the appeal was dismissed. adela pankhurst – who had been released on bail pending appeal – was returned to prison, serving until january 1918 despite a petition carrying thousands of signatures.51 that this was the outcome is not, however, an end to the matter. the conflation, on the part of the majority, of advocacy for smashing windows with selling bread at an inflated price, or a challenge to exporting wheat when the domestic price of bread lifts it out of workers’ grasp or severely reduces their ability to buy it, is questionable. this highlights the impact political considerations have upon judicial decision-making, particularly the impact of wartime on what is determined to be lawful and unlawful activity according to interpretation of law at the highest levels of the judiciary. commercial conduct versus political action even the most cursory look at farey v burvett confirms it as a very different case from that of adela pankhurst and her advocacy for breaking glass. farey v burvett was decided at the height of the war; the decision in pankhurst v kiernan came down a full year before the armistice was declared ending fighting on the western front. farey v burvett involved trading in the commercial arena for the making of profits in defiance of regulated prices; pankhurst v kiernan involved one woman’s defiance in the public streets. 50 [1917] hca 63, at 9. 51 renowned feminist and peace activist vida goldstein spearheded the petition's formulation and garnering of signatures. see coleman (adela pankhurst) above n 7 pp 83-84. the denning law journal 83 does the difference mean higgins j’s dissent should have prevailed: that no justification lies in the defence power for federal legislation making unlawful the conduct for which pankhurst was prosecuted, convicted and gaoled? or was the majority view to be preferred: that “defence” supports a law sufficiently wide to penalise speech calling for the breaking of shop windows? farey v burvett’s popular shorthand title “the bread case” – used interchangeably by the high court in pankhurst v kiernan – is not insignificant in assessing the strength of the arguments on both sides. farey was fined for breaching a regulation prescribing the price for selling bread in melbourne and its suburbs during wartime. bread prices were regulated by the war precautions act 1914-1916 (cth), authorising the governor general to make regulations and orders he thought “desirable for the more effectual prosecution of the war, or the more effectual defence of the commonwealth or of the realm”. such regulations and orders were restricted to “prescribing and regulating” amongst other matters “the conditions (including times, places, and prices) of the disposal or use of any property goods articles or things of any kind”. on 24 march 1916, by regulation “proclaimed areas” were declared for the principal populated parts of australia, measured by a 10 mile radius from sydney and melbourne general post offices (gpos), and within lesser miles radius of the other capital cities and certain other districts. the governor general was empowered to fix maximum prices for sale of bread and flour in the proclaimed areas. farey’s conviction resulted from his selling bread in a proclaimed area at a price higher than that set by the governor general. in other words, he was engaged in profiteering. in the words of griffith cj, did the defence power (s. 51(vi)) warrant “all this legislative action” and, hence, the conviction? the defence power provided no scope for the federal parliament to regulate food prices during peacetime. this lay with the states.52 the contention for farey was that the defence power allowed regulation of food prices or “necessaries of life” during war only insofar as relating directly to the armed forces or military operations, not to the needs of the civilian population or, as isaacs j put it: “the contention, and the only contention, on behalf of the appellant, is that even in time of war, whatever be the national exigency, it is wholly incompetent to the commonwealth parliament to make any provision with respect to the sale of the necessaries of life, except so far as relates directly to the armed forces or some actual military operation. the needs of the civil population, it is said, are altogether 52 see also t r bevin and h v evatt “price-fixing in australia during the war”, (1921) 3 journal of comparative legislation and international law 202-12. adela pankhurst in the australian high court 84 outside the limits of commonwealth protection, because within the meaning of the australian constitution no scheme of national defence can possibly comprehend them. monopoly, according to the argument gravely presented, may lay the community under private contribution, may sap their energies or unconscionably reduce their means of living, with the most direct consequences of impeding the nation in its struggle for existence, and yet the national government, charged by the constitution with the duty of universal defence, is by the same instrument forbidden to remove the impediment. the remedy suggested for such an evil is in the state powers.”53 however, state powers rather than federal intervention was, for the high court as a whole, no answer. for isaac j: “…though the states may, in directions not contravening express prohibitions, most advantageously act by means of their own constitutional powers in aid of the common object, yet this possibility does not ensure a remedy at all, and certainly does not ensure a remedy on broad national lines, with unity of purpose and action, even if the requisite knowledge were always possessed by the state authorities to enable them to appreciate the necessities of the entire situation.”54 in accordance with the principle established by the us supreme court in m’culloch v. maryland,55 as adopted in jumbunna coal mine, no liability v. victorian coal miners association,56 the federal parliament must have a discretion to make laws in “the manner most beneficial to the people” so long as, within the context of the particular power, the end is legitimate and all means employed to the end are not prohibited, are appropriate, and are consistent with the letter and spirit of the constitution. in affirming this, griffith cj, said that measures for defence “includes preparation for war in time of peace and any such action in time of war as may conduce to the successful prosecution of the war and defeat of the enemy”. it was “obvious” that the question “whether a particular legislative act is within [the defence power] may fall to be determined upon very different considerations in time of war and time of peace”. however “… any measure which may have the effect of tending to secure an adequate food supply to great britain during the 53 farey v burvett [1916] hca 36, at 9. 54 [1916] hca 36, at 9. 55 mcculloch v maryland 17 us 316; 4 wheat. 316; 4 l. ed 579 (1819). 56 jumbunna coal mine v victorian coal miners’ association (no 2) [1908] hca 95; (1908) 6 clr 309 (6 october 1908). the denning law journal 85 war, and so increasing, or preventing the diminution of, the resources of that part of the empire would be a measure tending also to the more efficient defence of the commonwealth as a part of it”.57 this followed because australia’s defence and security in time of war was dependent upon that of great britain. further, said griffith cj, the power to legislate on defence extended “… to any law which may tend to the conservation or development of the resources of the commonwealth so far as they can be directed to success in war, or may tend to distress the enemy or diminish his resources, as, for instance, by the prohibition of trading with him or with persons associated with him”.58 the power to make laws with respect to defence being a paramount power, if coming into conflict with state powers – that is, powers not granted to the federal parliament through the constitution, then the latter must give way. crucially, however, in farey v burvett the entire tenor of the judgments of each of the seven high court justices – identical with the bench in the adela pankhurst cases, apart from the presence of the chief justice – was as to the centrality of resources and their significance in terms of the war effort, for the “control of finance or trade may be the most potent weapon of all”: “history as well as common sense tells us how infinitely various the means may be of securing efficiency in war. sumptuary laws have always been common war measures. no one would dispute that the regulation of the supply and price of food in a beleaguered city would be a proper, and might be a necessary, war measure. the legislative act now in question is in substance a sumptuary law.”59 emphasised time and again, particularly by griffith cj, it was, however, essential to apply a principal test: “can the measure in question conduce to the efficiency of the forces of the empire, or is the connection of cause and effect between the measure and the desired efficiency so remote that the one cannot reasonably be regarded as affecting the other?”60 this was the test at the forefront for higgins j in pankhurst v kiernan, in his observation that farey was convicted in the bread case under legislation coming before parliament after melbourne wharf labourers had refused to 57 citing barton j farey v burvett [1916] hca 36, at 2. 58 [1916] hca 36, at 3. 59 [1916] hca 36, at 3. 60 [1916] hca 36, at 3. adela pankhurst in the australian high court 86 load flour onto ships sailing to great britain and allied countries until the price of bread in australia was reduced: “[melbourne wharf labourers] were persuaded to abandon this attitude and to trust to parliament; and parliament may well have considered that in providing for the fixing of prices they were providing for ‘the more effectual defence of the commonwealth’ [as the section expressly averred] by ‘securing cheap bread and the supply of food for great britain and her allies and the allied armies’ …”61 patently, this was not so with the law said to support the pankhurst conviction. for higgins j the heart of the matter lay in whether or not there was a link between smashing windows – or, more specifically, advocating their destruction, and the pursuit of the war effort or sustaining australia’s defence. there was, for him, no such link nor the shadow of one. then to barton and isaacs jj’s proposition that the position in the united states sustained and supported the notion that destruction of shop windows was a matter of “defence”. it was here that isaacs j found support in the federal food control act, observing that states’ rights in the us are “even more extensive than in australia” and that albeit “necessaries” was defined in the us act, “being a matter of legislative discretion”, its scope could have been extended.62 higgins j joined issue, explicitly challenging reliance upon the united states’ position. albeit the civil war of 1861-1865 led to a “severe strain” on the limits of the presidential and congressional powers of the united states, with a “host of crimes … not previously punishable by law” being created, he said, there was “no trace of any statute making it illegal to injure or to encourage injury of private property”. so far as he could discern, there was “no precedent in any defence legislation of congress for any such legislation as we have here to consider”. in the present war, congress had legislated for sale of wheat, flour, meal, beans and potatoes by the president “at reasonable prices”, together with “fixing the prices of coal and coke”. furthermore (as with farey v burvett) the us legislation conferring this power “expressly recited” the measure as being “essential to the national security and defence”.63 however, for isaacs j, section 4 was “if possible, more clearly than farey’s case within the ambit of [federal] power, because the destruction of or injury to property – including bread – involves its utter waste to the community, and consequently is much more serious than a rise in price, which 61 pankhurst v kiernan [1917] hca 63, at 7. 62 [1917] hca 63, at 5. 63 [1917] hca 63, at 7. the denning law journal 87 still assumes the possibility of obtaining and using the commodity”.64 yet it is ironic that “including bread” should have been noted by isaacs j at this point, and it shows the slippage involved in the endeavour to bring adela pankhurst’s case within the scope of the earlier decision: for bread was not in issue here; shop windows were. none of the other judges in pankhurst v kiernan confronted the nub of the problem. even though isaacs j sought to do so, notably he – as with the other four – avoided addressing the very substance of the difference between the legislation in question in farey v burvett and its application to the offence there in question, and the legislation said to apply to adela pankhurst – and the conduct asserted to bring her within the scope of the defence power. he did endeavour to countermand the notion that section 4 was “too wide” in its reference to “property”. hence, on the contention that because “some property might be unsuitable for war purposes, yet such property is covered by the section”, he constructed a twofold answer: “first, no one can ever say that anything is useless for war purposes, even in the narrowest sense; but next, and chiefly, all property in australia is part of our national resources, or, in the language of [the zamora’s] lord stowell, part of the ‘common stock’ to which the australian people – one people in war, and for that purpose knowing no state divisions – have a right to regard collectively as its means of support in every way for the purposes of this war, both in the lines and behind them.”65 yet for higgins j this was no answer. nor can it go unremarked that farey v burvett lacked any reference or even allusion to circumstances within the defence power having any parallel with the scope contested for by the majority in pankhurst v kiernan, griffith cj cited two examples:66 • … a commonwealth law enacting that any person plying for hire with a boat or launch in any harbour or river in the commonwealth shall obtain a licence from a commonwealth officer. such a law, if passed in time of profound peace, could not possibly be regarded as a law substantially dealing with defence. an identical law passed in time of 64 [1917] hca 63, at 5. 65 [1917] hca 63, at 5. 66 farey v burvett [1916] hca 36, at 4. adela pankhurst in the australian high court 88 war, and limited in its operation to the duration of the war, might obviously be a necessary war precaution. • … a law passed by the commonwealth parliament in time of profound peace prohibiting the accumulating of food stuffs (“forestalling” or, today, “hoarding”) could not be regarded as substantially an exercise of the defence power. in time of war the same act might well be made a capital offence. transport and food are easily assessed as crucial to defence and with a connection to it – troop and cargo (equipment) movements, maintenance and upkeep of defence forces, control of waterways and traffic on waterways, ensuring a proper supply of foodstuffs – all directly relevant to the prosecution of war or “defence of the realm”, all with an identifiable link. the principle that a law relating to defence would need to be seen as being capable of “conducing to the more effectual prosecution of the war” was crucial for griffith cj. the court could, he said, take judicial notice of the fact that the past season's harvest “was most abundant”, with “vast quantities of wheat, far exceeding the possible consumption of the commonwealth”, awaiting export, whilst wartime meant “the supply of freight is deficient”. therefore, for economical and “other reasons” exporting surplus to the united kingdom or the allied nations “may be highly desirable for the more efficient prosecution of the war”. it seemed to follow, he concluded, that any law “which may tend, with or without the aid of other measures, to encourage such export may be conducive to the more efficient conduct of the war”.67 wartime exigency versus free speech where do pankhurst v porter and pankhurst v kiernan stand in the potential for politics to play a role in decision-making of police, prosecution and courts during wartime? to those who see the law and particularly judicial decision-making as above socio-political sensibilities, it may be unsettling to focus upon why adela pankhurst and, in pankhurst v porter, her companions, might be seen as subject to such a contingency. yet the prosecution in pankhurst v porter signified a watershed. prior to this, wartime demonstrators, including pankhurst, were prosecuted under state or “civilian” laws.68 the new approach confirmed a decision that it was time 67 [1916] hca 36, at 4. 68 news coverage following the progress of demonstrations and arrests confirms that initially state (“civilian”) laws were employed against adela pankhurst. when she persisted in her right to demonstrate, federal laws and regulations under the defence power were ultimately used. see “street disturbances. adela pankhurst again the denning law journal 89 to make an example of these agitators through condemnation under defence laws. then, in arresting and prosecuting the women under regulation 27, police and prosecution decided the women engaged in “pretext”. had the women’s calls for action been accepted as embodying a genuine concern about prices taking food out of the “ordinary” labourer and housewife’s reach, the trio would have been prosecuted for engaging in just that purpose. “pretext” – or as the high court put it, “sham” – would not have been in issue. by “pretext”, the prosecution asserted the three pretended concern about prices, poverty and food for the poor, using their platform to agitate, stir up trouble, court publicity. barton j himself cast doubt upon the women’s bona fides: “i do not think that, whatever may be the fact, the evidence shows that [‘pretext’ exists here]”.69 he alluded to the “gaining of notoriety” as a possible basis for a prosecution under “pretext”. this embodies stereotypes of women in the public and political arena, and general stereotypes of women qua women. historically, women have been expected to be and remain silent, to defer to fathers and husbands, not take up causes.70 as for “women as women”, embedded in the law is the notion that women are not to be trusted, mendacity being seen as an inherently female trait.71 such stereotypes held sway in 1917. in dismissing the appeal in the lower courts judge johnston said that in a conflict of testimony the magistrate had to determine which evidence he would accept and “felt no doubt that he should accept that of the police as against that of a number of highly strung women …”72 in pankhurst v porter, the prosecution misfired. this meant that in pankhurst v kiernan, adela pankhurst was faced with a court which had been obliged, upon the evidence, to exculpate her once. could the court countenance exculpation for a second time, particularly as this time, she stood without fellow miscreants? arrested. charge of encouraging damage” the argus, 24 september 1917, p 6; “miss adela pankhurst goes to gaol” the advertiser 5 september 1917, p 7; also j smart “feminists, food and the fair price: the cost of living demonstrations in melbourne august-september 1917” labour historyno 50 (may 1986) pp 113-131. 69 pankhurst v kiernan [1917] hca 63, at 3. 70 on traditional notions of women’s place, see c smith-rosenberg disorderly conduct – visions of gender in victorian america (oxford: oxford university press, united kingdom, 1986); j damousi “socialist women and gendered space: the anti-conscription and anti-war campaigns of 1914-1918” labour history, no 60 (may 1991), pp 1-15, http://www.jstor.org/stable/27509044 (accessed 30 january 2011). 71 see for example h kennedy eve was framed – women and british justice, (london: chatto & windus, uk, 1992), updated edn vintage, london, 2005. 72 “adela pankhurst. conviction upheld. stay of proceedings allowed” argus, 13 september 1917, p 6. adela pankhurst in the australian high court 90 adela pankhurst was vulnerable in coming alone before the high court in circumstances where only days before she, along with suter and baines, had won an acquittal. her continuing defiance of the war whatever the cost and refusal to obey measures said to be in support of war, particularly in ignoring or even promoting hunger and poverty amongst the civilian population, was a clear affront to those in power. the authorities’ desire for an example to be made was a matter of notoriety. that pankhurst was both a leader and a charismatic character was on record australia-wide and throughout the empire. her exploits were reported at home and abroad. her mother’s view of her conduct was sought, with predictable maternal condemnation.73 the prime minister, billy hughes, publicly and privately spoke of deporting her.74 that judges are distanced from the social and political realities, from assumptions, stereotypical perspectives, their own socialisation, and pressures of the times in which they sit is not infrequently contradicted by judicial pronouncements from the bench. judgments relating to cases involving women, whether sexual offences or marital killings,75 or social security and welfare fraud76 are cited in this regard. more generally, so too are cases with political implications – the trials and appeals of alleged ira bombers, for example.77 73 adela pankhurst was sent out to australia by her mother, who paid her fare, concerned that adela was taking attention away from christabel, mrs pankhurst’s favoured daughter. see “mrs pankhurst. ashamed of adela and repudiates her” the advertiser, 9 march 1917, p 6. see also fran abrams, freedoms cause – the lives of the suffragettes, (london: profile books, uk, 2003); “adela pankhurst: biography”, spartacus educational, http://www.spartacus.schoolnet.co.uk/wpankhursta.htm (accessed 29 january 2011). 74 “miss adela pankhurst. suggested deportation” mercury, 22 september 1917, p 8; see also wm hughes to k murdoch, 3 september 1917, quoted in l f fitzhardinge, william morris hughes – a political biography, vol 2 (“the little digger”), angus & robertson, sydney, australia, p 277; s hogan “pankhurst, adela constantia mary (1885-1961”, australian dictionary of biography, http://adbonline.anu.edu.au/biogs/a120729b.htm (accessed 29 january 2011); s hogan, “pankhurst, adela constantia mary (1885 1961)” australian dictionary of biography, vol 12 (melbourne: melbourne university press, australia, 1990) pp 372374. 75 see for example kennedy eve was framed, (1992, 2005); s m edwards sex and gender in the legal process, (london: blackstone, uk, 1996). 76 see for example t nyman, “opinion: jail for social security fraud except in exceptional circumstances”, law society journal vol 35 (1997), pp 7-21; edwards, sex and gender, 1996. 77 for example the “birmingham six”; the “guildford four”, the “maguire seven”. also see r v richardson, conlon, armstrong and hill ewca crim. (20 october 1989); r v ward (1993) 96 cr app r 1; r v mcilkenny & ors (1991) 93 cr app r the denning law journal 91 pankhurst v kiernan involved a defiant woman with an overtly political cause. it is impossible not to be struck by the failure of the majority judgments to address adequately or at all the question of a link between smashing windows and defence. the judges engage in complete omission or, as with isaac j, elision or sleight of hand. higgins j alone turned his mind to the matter explicitly in issue. for him, it was clear. as barton j said in pankhurst v kiernan the function of the high court in deciding whether a law purporting to be made under section 51(vi) of the constitution was indeed valid, was “to say whether the form of law had been given to something which was capable of assisting defence”.78 neither he, nor four of his brother judges, followed this path. yet if adela pankhurst had advocated the smashing of windows, intentionally and without compunction for the damage it would cause should her listeners bow to her advocacy – as all six judges had agreed, the prosecutorial decision was clear. state laws for the protection of property were the answer. state, civilian law was the non-political pathway to prosecution. higgins j’s dissent took the politics out of judicial decision-making. that his brethren followed a path of upholding the conviction, despite the lack of connection between the defence power and what adela pankhurst was found to have said and done, confirms that political considerations are not remote from judicial decisions made during times of war and dissent. 287; maguire seven (1992) 94 cr app r 133; e guittet “judicial abuses in the fight against terrorism: the guildford four (1974), the maher arar case (2002), and the constitutional bana of batusuna (2003)”, paper presented at the annual meeting of the law and society association, montréal, canada, 27 may 2008, http://www.allacademic.com/meta/p237314_index.html (accessed 3 february 2011); c mullins error of judgment: the truth about the birmingham bombings (dublin: poolbeg press, ireland, 1987); b hilliard ‘soldiers of nothing’, new law journal, vol 140, no 6442, pp 163-65; b schurr ‘expert witnesses and the duties of disclosure and impartiality: the lessons of the ira cases in england’, nsw legal aid commission, sydney, australia, http://www.aic.gov.au/events/aic%20upcoming%20events/1993/~/media/conferences/ medicine/schurr.ashx (accessed 3 february 2011). 78 [1917] hca 63, at 3. unincorporated associations: property holding, charitable purposes and dissolution 141 denning law journal 2012 vol 24 pp 141-152 case commentary the crime of retracting a truthful statement r v a [2012] ewca crim 434 susan s m edwards background on 13 th march 2012, the court of appeal delivered its reserved judgement in r v a, 1 an appeal against conviction for the offence of perverting the course of justice. the appellant had made allegations of multiple rape and domestic violence perpetrated against her by her husband, allegations she later withdrew, thereby giving rise to the charge of and subsequent conviction for perverting the course of justice. the court of appeal upheld the conviction. this was the second time this appellant‘s case had been referred on appeal, the court having already heard an appeal against sentence on 23 rd november 2010, when it quashed a prison sentence of eight months, and substituted a community sentence and supervision order. whilst justice has prevailed and corrected the error of the draconian sentence, the conviction for perverting the course of justice following the retraction of a truthful allegation because of fear and pressure still stands. at present the case is being appealed further to the supreme court. the case of a, has generated national and international publicity 2 due to a widespread concern that the prosecution of a domestic violence victim for withdrawing an allegation, where that withdrawal was motivated by fear of further abuse and pressure, amounted to a gross miscarriage of justice which would deter victims of rape and domestic violence, under similar circumstances, from reporting such assaults to the police. the serious consequences that flow from the deterrent effect of this anomalous prosecution on victim's reluctance to report to police and the risk to victims of  professor of law, university of buckingham; door tenant, 1 gray‘s inn square, gray‘s inn, london; mewi; e-mail: susan.edwards@buckingham.ac.uk. 1 r v a [2012] ewca crim 434. 2 a bershadski ―complainants who stop complaining: being prosecuted for withdrawing an allegation‖ (2011) 1 jcclaw 153. case commentary 142 further assault and/or death must be considered against the background of the seriousness and prevalence of rape and domestic violence. two women die at the hands of their partners every year. 3 in 2008, 101 women victims died following violence inflicted by a partner or ex partner. seventy-six per cent of all domestic violence involves repeated incidents. 4 fifty-four per cent of women victims of serious sexual assault were assaulted by their partner or expartner. 5 over the last three decades police, prosecutors and the courts have been working towards improving the criminal justice system response and (mindful of their obligations under the european convention of human rights art 2 right to life and art 3 right to be free from inhuman and degrading treatment), encouraging women to report violence to the police in the anticipation that the prosecution of such offences will prevent an otherwise escalating spiral of seriousness in domestic violence. 6 the law of evidence has also introduced changes of benefit to victims of domestic violence. wives are compellable witnesses against husbands,7 special measures and support for victims has been provided.8 hearsay9 and bad character 10 provisions have been extended, where propensity evidence includes previous convictions, cautions, acquittals, and offences for which the person has not been charged. it may also include findings in civil proceedings, by 2009/10, 74,000 cases were prosecuted, and the conviction rate (which includes not guilty pleas resulting in conviction as well as pleas of guilt) was 72 per cent. 3 k smith (ed), s osborne, i lau and a britton homicides, firearm offences and intimate violence 2010/11: supplementary volume 2 to crime in england and wales 2010/11 table 1.05 p 38. see also http://bit.ly/nigtqu. 4 j flatley, c kershaw, k smith, r chaplin and d moon (2010) bcs crime in england and wales 2009/10, home office, accessed at http://bit.ly/mb8x06 p 24. 5 stern (2010) the stern review accessed at http://bit.ly/r7wp4o p 9. 6 opuz v turkey (2010) 50 ehrr 28; 27 bhrc 159. see also yildirim v austria (v) cedaw 6/2005 (6 august 2007), where a wife who made repeated applications for restraining orders to protect her from a husband‘s repeated threats to kill was ultimately killed by him. the committee on the elimination of discrimination against women found a breach of articles 2 and 3 of the un convention on the elimination of all forms of discrimination against women (cedaw). see also goekce v austria, un doc cedaw/c/39/d/5/2005 (2007) para 12.1.4; the court held that austria had not done enough to protect where a husband killed a wife when restraining orders were in place, but there was a failure to adequately protect. see also kontrovà v slovakia (no. 7510/04), bevacqua and s v bulgaria (no. 71127/01), e s and others v slovakia (no. 8227/04), hajduovà v slovakia (no. 2660/03). 7 police and criminal evidence act 1984 (pace), s 80(2). 8 youth justice and criminal evidence act 1999 (yjcea 1999), s 17. 9 criminal justice act 2003, s 116. see also r v boulton [2007] ewca crim 942. 10 criminal justice act 2003, ss 101 and 112. the denning law journal 143 in addition, the introduction of independent domestic violence advisers (idvas) offering support to women through the process has resulted in a successful outcome in 73 per cent of the domestic violence cases where an idva is present. 11 in 2005/06 there were 25 specialist domestic violence courts in 2011 this number had increased to 143. given all this progress the prosecution of a for perverting the course of justice will undoubtedly undermine the confidence of women in the criminal justice system and deter them from reporting incidents of domestic violence which will have devastating consequences for women‘s safety. with regard to the cps, the dpp has stated that since 2001 clear guidance had been issued to prosecutors on prosecuting domestic violence cases and that during 20052008, there was a ―huge training exercise training all of our prosecutors on domestic violence.‖ 12 so what happened in a‘s case? in 2009/10 over 6,500 domestic violence cases failed because the victim either failed to attend court or retracted her evidence. this has been a perennial problem which is being addressed in several ways including supporting victims throughout the prosecution process (with idvas), and allowing the admission of hearsay 13 and bad character 14 evidence. it has been a grave error of judgement to have prosecuted a for retracting a truthful statement. facts ‗sarah‘ as the anonymous victim is referred to 15 was subjected to domestic violence and rape. on 28 th november 2009, she made a police statement alleging that she had been raped by her husband. she was relocated to a women's refuge with her four children. her husband was subsequently arrested and remanded in custody. on 10 th december, at a preliminary hearing, he was released on conditional bail, with a specific condition that he should not directly or indirectly contact any prosecution witness. on 21 st december sarah said she wished to withdraw the allegation and on 7 th january 2010, she stated that she wished to withdraw the complaint although she still maintained that it was true. on 18 th january 2010, a plea and case 11 idvas are trained specialists who provide a service to victims, who are at high risk of harm from intimate partners, ex-partners or family members, with the aim of securing their safety and the safety of their children. see http://bit.ly/oiozon. 12 see http://bit.ly/ocprkz speech by the director of public prosecutions, keir starmer qc, accessed june 3rd 2012. 13 criminal justice act 2003, s 116. 14 criminal justice act 2003, ss 101 and 112. 15 a victim of rape is entitled to anonymity since sexual offences amendment act 1976 (see house of commons anonymity in rape cases standard note sn/ha/4746, last updated: 7 february 2012). case commentary 144 management hearing took place, and the husband entered ‗not guilty‘ pleas. on 7 th february in a telephone conversation with the police she said that her original statement was not true and on 11 th february she went to the police station and made a statement that her original allegation was also untrue. on 12 th february, at mold crown court, no evidence was offered against her husband in connection with the six counts of rape and not guilty verdicts were recorded. this sequence of facts and subsequent withdrawal of allegations of violence by women are typical in these cases. it is usual in the uk jurisdiction, and in others, that the case ends there, and as has already been stated the prosecution case fails. 16 crown court trial unusually, the cps and police in north wales decided however to proceed against sarah. on 16 th april 2010, she was formally arrested and interviewed under caution and told the police that her original allegations had been false. she was then charged with two counts of perverting the course of justice that, ―... between the 7 th day of february 2010 and the 30 th day of july 2010, with intent to pervert the course of public justice, did a series of acts, namely made and pursued a false retraction of her complaints of rape against … her spouse which had a tendency to pervert the course of public justice.‖ 17 on 15 th october 2010, she was arraigned on two counts of perverting the course of justice (count one that she had made a false allegation and count two that she had made a false retraction). she pleaded ‗not guilty‘ to the first count, and ‗guilty‘ to the second count. in cases involving allegations of rape and domestic violence charges of perverting the course of justice will only be brought where it is considered that the complainant has made a false allegation or else against the perpetrator of the violence for witness intimidation. few, if any cases proceed against victims where it is the retraction of a complaint of rape or domestic violence which is considered to be false. in sarah‘s case the determination of the prosecutors to secure a conviction against her is self evident since both her statements were made the subject of separate counts ensuring that a conviction would be inevitable since one statement was certainly false. following her conviction for perverting the course of justice in relation to count 2 retracting a true statement and declaring it to be false, there was a public outcry in which the dpp, keir starmer, went on public record as saying that ―i do not consider justice was done or was seen to be done‖ 18 16 case attrition in domestic violence case is much researched. 17 r v a [2012] ewca crim 434. 18 keir starmer, the guardian 16 dec 2010. the denning law journal 145 paraphrasing the aphorism of mccarthy 1924. 19 following this the cps instituted a consultation exercise, and subsequently published what it considered to be fresh guidance to prosecutors on how to deal with what it called ―double retractions‖ in such cases. i will comment on this in detail below. court of appeal appeal against sentence on 23 rd november 2010, the court of appeal before the lord chief justice of england and wales (lord judge), mr justice calvert-smith, mr justice griffith williams, considered sarah‘s appeal against sentence and quashed the sentence of imprisonment that had been imposed at mold crown court, 20 substituting instead a community sentence with a supervision order. however, as the court of appeal made clear, in her later appeal against conviction, 21 the only reason a supervision order was made instead of a conditional discharge was that as she had spent three weeks in prison the care of her children needed regularising and supporting. counsel for the appellant argued that the sentence was manifestly excessive pleading that insufficient account had been taken of: ―(i) her age; (ii) her good character; (iii) her admissions; (iv) the fact that she was the mother to four young children; and (v) the fact that her husband had placed her under great pressure to withdraw the complaint.‖ in considering each of these points the court of appeal acceded that the sentence was manifestly excessive, and made considerable comments in relation to the fifth ground. the court of appeal said this: ―... the difference between the culpability of the individual who instigates a false complaint against an innocent man and the complainant who retracts a truthful allegation against a guilty man will often be very marked. experience shows that the withdrawal of a truthful complaint of crime committed in a domestic environment usually stems from pressures, sometimes direct, sometimes indirect, sometimes immensely subtle, which are consequent on the nature of the individual relationship and the characters of the people who are involved in it. [21] where a woman has been raped, and raped more than once by her husband or partner, the father of her children, the man in whom she is entitled to repose her trust, those very actions 19 r v sussex justices, ex p mccarthy [1924] 1 kb 256. 20 r v a (false retraction of allegation of rape) [2010] ewca crim 2913. see also s edwards ―the duplicity of protection—prosecuting frightened victims: an act of gender-based violence‖ (2012) 76 jcl 29-52. 21 r v a [2012] ewca crim 434. case commentary 146 reflect, and are often meant to reflect, manifestations of dominance, power and control over her. when these features of a relationship between a man and a woman are established, it is an inevitable consequence that the woman who has been so ill-treated becomes extremely vulnerable.‖ significantly, in considering the appeal against sentence the court of appeal was most influenced by the pressure she was placed under and also her fear of her husband and said this: ―she stated, as recorded in a pre-sentence report, that her relationship with her husband had been an abusive one and that she had been under immense pressure to drop the complaint against him. she further stated that she had issued the retraction statement in fear of repercussions from her husband and in an effort to enable her children to enjoy christmas with him... the sentencing court, when assessing culpability, should allow for the pressure the defendant would necessarily be exposed to and be guided by large measure of compassion for a woman already victimised. the instant case was very exceptional. the sentence for an offence of perverting the course of justice was normally custodial. but the instant case, which was exceptional, was not one such a case. the appropriate sentence was a community sentence with a supervision order.‖ the court of appeal added that, ―the sentence for perverting the course of justice normally is, and will normally continue to be, a custodial sentence‖. this is not entirely true and it is worthy of note, perhaps, that from 1991-2000 of a total of 16,925 defendants for trial at the crown court, 13,245 were convicted, and of those 5,595 were sentenced to a term of imprisonment, and of those imprisoned 50 per cent were sentenced to up to four months imprisonment. 22 in 2000, 9,763 offences of perverting the course of justice were recorded. in the same year 5,107 cases of perverting the course of justice were proceeded with in the magistrates' courts, of which 2,312 were dealt with in the crown court (table 2). in 2009/10, a total of 7,997 offences of perverting the course of justice were recorded. 23 22 source: data on defendants tried and/or sentenced compiled from criminal statistics: england and wales, supplementary tables, vol 2, proceedings in the crown court, table s2.1(a) for the respective years. 23 r chaplin, j flatley and k smith crime in england and wales 2010/11 findings from the british crime survey and police recorded crime (2nd edition) july 2011 hosb:10/11 table 2.04 (contd) recorded crime by offence, 1997 to 2010/11 and percentage change between 2009/10 and 2010/11 p 45. the denning law journal 147 court of appeal appeal against conviction on 15 th february 2012, in the court of appeal, before lord judge cj, silber, maddison jj, sarah‘s counsel advanced the following arguments, (i) that she had been suffering from post traumatic stress at the time of retracting her true statement, (ii) that she had a defence of duress or marital coercion and (iii) that prosecutorial discretion was not exercised properly and under these circumstances a case should not have been brought. the court of appeal summarised the pressure, fear, guilt, isolation, responsibility for the children, and her desire to keep up a facade for their sakes that all was normal between her and their father. the court said “we can see no reason for concluding that in the context of the ingredients of this offence, the victim of a crime is entitled to be treated differently from any other witness to a serious offence who falsely retracts truthful evidence.‖ 24 there is every reason. this point i will address in the commentary. the court of appeal, on the duress point abided by the further limitations on the law of duress laid down by the house of lords in hasan, 25 and accepted prosecution argument that ―that duress should not and cannot be confused with pressure,‖ 26 concluding that there is inconsistency between what the appellant said she was subjected to (in the appellants words) ―this mixture of pressure‖ and what her counsel argued existed as pressure in that there was violence. in this, the court of appeal misses the complexity of pressure for a victim of rape and domestic violence and the difficulty she has in describing her coercion in precise legal niceties. 27 the court of appeal with regard to sentencing did not consider itself powerless and stated ―the court is not powerless. in an appropriate case an order for absolute or conditional discharge will convey its distinct message.‖ 28 but with regard to a finding of abuse of process it said, “even if it can be shown that in one respect or another, part or parts of the relevant guidance or 24 para 58. 25 [2005] 4 all er 685. 26 para 63. 27 it is worth noting that sections 11 and 12 of the matrimonial causes act 1973 which itemise the grounds for nullity. specifically, ground (c) in section 12 states that a marriage shall be voidable if: ―…either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise.‖ the leading cases are hirani v hirani [1982] 4 flr 232, ca; mahmud v mahmud 1993 sclr 688; sohrab v khan 2002 slt 1255. and the test is whether the threats or pressure were such as to overbear the will of the individual and not the earlier test of threat to life and limb. and the forced marriage (civil protection) act 2007 recognises the complexity of coercion s 63a states ―(6)in this part— ‗force‘ includes coerce by threats or other psychological means (and related expressions are to be read accordingly)‖. 28 para 83. case commentary 148 policy have not been adhered to, it does not follow that there was an abuse of process... accordingly, we are not entitled to interfere with this conviction.‖ 29 commentary the cps was entirely wrong in bringing charges of perverting the course of justice against the appellant. instead, the case against sarah‘s husband should have proceeded. the court of appeal, whilst sympathetic with the predicament of the appellant, both at the appeal against sentence and the appeal against conviction seemed more willing to entertain pressure and duress arguments in mitigation of sentence than when they were advanced in support of a defence of duress. in this latter regard the opportunity to develop the law on duress was not seized by the court of appeal. this is all very disappointing as the cps has been working on understanding domestic violence and how to prosecute in such cases since its guidance in 1993. this u turn suggests a lack of case management and a lack of understanding of domestic violence and the need for a new concerted drive to raise awareness of domestic violence within the organisation. the issuing of new guidelines to prosecutors should ensure that where these circumstances arise again, as indeed they undoubtedly will, victims will not be prosecuted and the cps will consult with the dpp over such cases. however, the new guidelines merely echo the previous guidelines and suggest more of a public relations exercise to conceal serious failings within the organisation. perverting the course of justice perverting the course of justice, an offence at common law, is triable on indictment only. three types of conduct are most commonly indicated including, fabrication or disposal of evidence or inducing others to do so, intimidating a juror, witness or person assisting an investigation and harming or threatening to harm a witness, juror or person assisting an investigation. 30 intimidating jurors 31 causing death by dangerous driving 32 concealing incriminating evidence 33 driving offences, 34 and making false allegations of 29 paras 84 and 88. 30 perverting the course of justice is a charge that should be used where there is witness intimidation. see for example the case of the man who pressured his wife into withdrawing an allegation against him grimsby telegraph may 25 2012. 31 r v curtis (stephanie) court of appeal (criminal division) [2012] ewca crim 945. 32 r v gray (barry paul) court of appeal (criminal division) 03 may 2012, r v afzal (mohammed) court of appeal (criminal division) [2012] ewca crim 10. 33 r v yaman (tolga) court of appeal (criminal division) [2012] ewca crim 1075. the denning law journal 149 assault, 35 provide such examples. the person who retracts a truthful statement because of fear is not usually proceeded against. indeed the cps, in its own public information, point to the concern with perverting the course of justice, as involving cases where ―there is a possibility that what the suspect has done ‗without more‘ might lead to a wrongful consequence, such as the arrest of an innocent person (murray (1982) 75 cr. app. r. 58) or a false allegation has been made‖. the cps has only proceeded against a victim who retracts a truthful allegation in less than a handful of cases in the last three decades. the use of such proceedings to manage the frightened domestic violence witness is an oppressive and vindictive abuse of the victim. in 1989, michelle renshaw was assaulted by her boyfriend michael williams and was proceeded against for contempt of court for refusing to give evidence at the trial stage. pickles j went on to say that it was michelle renshaw who failed the ‗court of women‘. the cps in its new guidance it states: ―8. the offence of perverting the course of justice in the context of rape and domestic violence covers the following situations:  where someone makes a false allegation of rape or domestic violence. (see paragraph 10 and paragraphs 26-28 below.)  where a complainant of rape or domestic violence retracts an allegation, whether false or true, an offence of perverting the course of justice may be committed. however, there may be credible reasons why a complainant of rape or domestic violence may retract a truthful allegation and prosecutors will need to ensure that the reasons for the retraction are fully explored and understood. (see paragraphs 12-16 and paragraph 24 below.)  where a complainant of rape or domestic violence withdraws an earlier retraction (referred to in this guidance as a "double retraction"). (see paragraphs 17-19 and paragraph 29.) 36 the new guidance ‗so called‘ actually did no more than to restate the relevant parts of existing cps policy and reflected an effort to quell the 34 r v jason langley no: 2011/5738/a5 [2011] ewca crim 2716 2011 wl 5828799. 35 r v clarke criminal law – sentence – appeal against sentence – defendant charged with perverting the course of justice – defendant pleading guilty and sentenced to 15 months' imprisonment – whether sentence should have been suspended, [2010] ewca crim 2076, (transcript: wordwave international ltd (a merrill communications)). 36 http://bit.ly/qo6kcu accessed 1 june 2011. case commentary 150 rightly indignant public reaction to the treatment of the victim in the immediate case. the court of appeal neither at the hearing against sentence nor at the hearing against conviction made any comment on the exercise of discretion by the cps. yet, in the earlier case of r v bird and holt, 37 where the victims of domestic violence were too frightened to give evidence against the perpetrator the court of appeal was indeed critical of the cps and asked why the original statements of the two women had not been admitted under the hearsay provisions. in the immediate case one must ask why sarah‘s husband was not prosecuted and why sarah‘s contradictory statements were not tested in court and the jury left to decide which of the two inconsistent statements was true especially as the police were inclined to believe that the first statement was the true statement. there is authority for this approach. 38 in r v smith (rocky), 39 the victim of domestic violence retracted her original police statement because of fear; the judge granted the prosecution application to treat her as a hostile witness. she was cross-examined by the prosecution who put in evidence her earlier statement. in r v bashir, 40 a wife was treated as a hostile witness. the court of appeal was correct however on their view that a conditional discharge would have been appropriate. sentencing principles are articulated in r v livesey (john) 41 as laid down in r v tunney, 42 where stanley burnton j, said: ―10. in our judgment the sentence which is appropriate for offences of this nature depends effectively on three matters … the particular factors which the court must have regarded to are, first, the seriousness of the substantive offence to which the perverting of the course of justice relates. here the offence in question, murder/manslaughter, was at the most serious end of the spectrum. the second matter which the court must have regard to is the degree of persistence in the conduct in question by the offender. here there was a  degree of  persistence, although ultimately the appellant ceased to persist in his lies. thirdly, one must consider the effect of the attempt to pervert the course of justice on the course of justice itself. 37 (1997) 161 jp 96, the times (31 october 1996), roch lj, jowitt j and judge ann goddard qc. 38 l ellison ―prosecuting domestic violence without victim participation‖ (2002) 65 modern law review volume 834. 39 [2009] ewca crim 2461. 40 [2011] ewca crim 2763. 41 court of appeal (criminal division) 2 nd may 2012. 42 [2006] ewca crim 2066 and [2007] cr app r (s) 91. http://login.westlaw.co.uk/maf/wluk/app/document?src=doc&linktype=ref&&context=5&crumb-action=replace&docguid=i209b6210453c11db8ae39bd478db69e4 http://onlinelibrary.wiley.com/doi/10.1111/mlr6.2002.65.issue-6/issuetoc the denning law journal 151 here it was unsuccessful. nonetheless, the substantive offence of murder or manslaughter could scarcely have been more serious.‖ pressures, fear and legal niceties in the domestic violence context at a time when the coroners and justice act 2009 introduced a new offence of fear loss of control manslaughter it seems anomalous that the complexity of domestic violence and the factors which affect retraction of allegations is so little understood elsewhere in the criminal law. sarah listed the pressures ―she said that everything had been done for her children so they could enjoy their christmas‖ including withdrawing the allegation. 43 the court of appeal noted, ―in the statement the appellant asserted that she had been subjected to domestic abuse and had indeed been raped on three occasions. as to her reason for retracting her allegations to this effect, she said that her husband ―persuaded‖ her to do so on the basis that if she did not ―any punishment (she) would suffer would be considerably less than that he would be subject to. she added that her husband was able to control her.‖ 44 and yet they did not consider that her situation amounted to a duress defence nor were they willing to explore the current limitations of a duress defence and explore the issue of domestic violence within the current law. nor did they consider her prosecution an abuse of process. all this happened at a time when the cps published its violence against women and girls crime report for 2010-11, 45 in which it reports that the cps has, improved its handling of cases of violence against women and girls (vawg) in terms of both quality and quantity and that since 2006-07, prosecutions have risen from just under 69,000 to 95,000 an increase of 38 per cent. the dpp said: ―crimes against women include some of the most pernicious and degrading offences that we prosecute. it is important for victims of these crimes that we continue to improve the service that we deliver, both within the cps and with our partners in the criminal justice system.‖ prosecutors in the uk at least in this immediate case have certainly demonstrated a u-turn in approaches to domestic violence and victims who because of fear and other pressures withdraw allegations. this is also sadly the case elsewhere where prosecutions for perjury may also be brought. the case of dushkar kanchan singh v the queen, 46 before elias cj, blanchard, tipping, mcgrath and william young jj, where the victim withdrew her 43 para 16 court of appeal 13 th march. 44 ibid, at para 31. 45 violence against women and girls crime report for 2010-11. cps, london. 46 [2010] nzsc 161. see also ijep 15 2 (170)1 april 2011. see also [2011] nzlj 98. case commentary 152 original allegation 47 against her partner who was charged with nineteen counts of violence against her, is instructive. at the trial, the complainant contradicted what she had said in her original statement and was subsequently treated as a hostile witness. the victim then invoked the privilege against selfincrimination. the judge rejected this claim. her partner was convicted of assault. on appeal he contested the judges‘ refusal to accept her claim to the self-incrimination privilege. the appellants case was that her inconsistent statements might later form the basis for a prosecution for perjury should she give evidence that supported the defence. the new zealand supreme court per william young j, stated that the privilege against self-incrimination belongs to the witness and can only be invoked in relation to information which, if provided, would be 'likely' to incriminate the person claiming the privilege and that a defendant cannot object to a prosecution witness waiving privilege. he went on to say that there was no realistic risk of the crown using the prior inconsistent statements to prosecute her, if the evidence she gave at trial incriminated the defendant. however this was not the case if the evidence she gave at trial was not incriminatory explaining that the only substantial risk of prosecution was in relation to any evidence exculpating the defendant. he said this: ―[33] a complainant in a domestic violence case who defeats a prosecution by reneging on prior statements might, conceivably, be prosecuted. for instance, if she acknowledges that her original complaint was false, she might be prosecuted for making a false complaint (but presumably only if the police are satisfied that the complaint was indeed false). alternatively, she might be prosecuted for attempting to defeat the course of justice (if the police take the view that the alleged offending took place).‖ 48 in addition, the new plans to criminalise forced marriage 49 have stated that victims will be guaranteed that they will not be forced to support a prosecution against their wishes, presumably that also means they will not be proceeded against for perverting the course of justice should they withdraw the allegation. 47 ibid ―[6] the appellant and ms d met in early 2006 and became engaged. the appellant was a police officer and had many years experience as a policeman both in new zealand and overseas. ms d is not a new zealand citizen. she moved to new zealand a few months after she met the appellant and began living with him. she was on a visitor‘s permit and dependent on the appellant‘s sponsorship to remain in new zealand‖. 48 ibid. 49 see http://bit.ly/mibu9w accessed june 12th 2012. for the purposes of right to self-determination, how does one define people in context of kashmir 257 the denning law journal 2013 vol 25 pp 257-261 book review free country sir sydney kentridge kcmg, qc, hart publishing oxford 2012 isbn-10: 1849464677, isbn-13: 9781849464673 price £20.00 hb the rt hon the lord scott of foscote ‘free country’ is a collection of lectures and talks, twelve in all, given by sir sydney kentridge qc, over a period running from 1979 to 2011 and now published as a collection. sir sydney became in 2009 an honorary lld of the university of buckingham, an addition to the seven or eight honorary degrees that he already held from universities in england, south africa and elsewhere in the world. susan edwards, professor in law at the university of buckingham, asked me to write a review of “free country’ for inclusion in this year’s edition of the denning law journal, published annually by the university. it was an honour and privilege to have received this invitation, my only qualification for which is that besides, like sir sydney, having had a career as a lawyer in england, i like him, was educated and brought up in south africa and, when i came to england, did so on a south african passport. having read, and re-read, the remarkable collection of lectures and talks that constitutes ‘free country’ i find it impossible to write about the collection without first writing about its very distinguished author. sydney kentridge is a south african born and bred. he was born in johannesburg in 1922 and educated in that city. he took a law degree at the university of the witwatersrand (‘wits’ in common parlance) and another at oxford university. after service in the south african forces in world war ii he qualified as an advocate in south africa, the equivalent of a barrister in england, and in 1949 began practice in johannesburg. in 1948 the nationalist party won a majority in the general election in south africa, defeating by a considerable margin the previous government led by south africa’s great war leader, general smuts. so, in 1948, dr malan, the leader of the nationalist party, became the prime minister and the nationalists remained in power for over 40 years. over that period the system of apartheid i.e. strict racial segregation was prescribed, regulated and enforced pursuant to statutes passed by the south african parliament. i should make clear that racial segregation was not invented by the nationalist government. it had been a social feature of the country throughout book review 258 the period that the cape province and natal had been british colonies and the transvaal and the orange free state had been independent republics. after the act of union in 1910 racial segregation as a social feature remained the norm throughout the country. but the philosophy underling the imposition of the apartheid system required that the racial segregation and white domination that had become features broadly accepted by the bulk of the white population as cultural desiderata should become legal imperatives to be strenuously, sometimes ruthlessly, enforced. under apartheid, blacks were restricted to certain occupations, restricted as to the ownership of land or where they could live. miscegenation between individuals of different races became a criminal offence and only whites could vote or run for political office. asian indians and persons of mixed race (known in south africa as ‘cape coloureds’) had some, albeit limited, political rights. africans had none. this was the political and social state of south african when sydney kentridge began his professional career as an advocate in johannesburg. his career flourished. he became a senior counsel (‘sc’), the equivalent of a qc or kc, in 1965 and appeared in cases not only in the transvaal courts but also in the appellate division, south africa’s highest court in those days, which sat in bloemfontein. many of the cases in which he appeared, and particularly those with a political content or political implications, are referred to in the ‘free country’ collection. three of his clients were the great nelson mandela, who after 27 years of imprisonment on robben island became president of south africa in 1994 and retained that office until his resignation in 1999, chief albert luthuli, leader of the ‘zulus’ in natal, and who became president-general of the african national congress (‘the anc’) in 1952, and archbishop desmond tutu, who instituted and conducted the truth and reconciliation commission after the collapse of the apartheid regime, and the release from prison of nelson mandela. each of these three men was awarded the nobel peace prize, chief luthuli in 1960, archbishop tutu in 1984 and nelson mandela in 1998. i am not the first to remark that there has probably been no other advocate who could claim three such internationally distinguished clients. in 1997 sydney kentridge left south africa, came to england, was called to the bar of england and wales and began practice in this country as a barrister from chambers at 1 brick court in london. a foreword to ‘free country’ has been written by two former members of the 1 brick court chambers, each of whom was a distinguished barrister and is now a distinguished judge. sir david lloyd jones is currently a lord justice of appeal and sir george legatt is currently a high court judge sitting in the queen’s bench division. their foreword constitutes a really excellent introduction to and précis of the ‘free country’ collection. my pleasure in reading it is accentuated by the fact that george legatt’s father, sir andrew legatt was himself a high court judge in the queen’s bench division and has been a friend of mine for many years. the denning law journal 259 sir sydney’s translation of himself from being a highly regarded advocate practising in south africa to being a highly regarded barrister practising in london took place after his experience of some 30 years of authoritarian nationalist rule in south africa. the events in those years included the sharpeville massacre of 69 black protestors in march 1960, the 1976 riots when at least 600 people, mostly black, were killed while protesting against the apartheid restrictions on their lives, and the trials and imprisonment of nelson mandela. nelson mandela had, in 1956, been arrested on treason charges, charges that carried a potential death sentence on conviction. at his trial he was defended by sydney kentridge, acquitted on the treason charge, but convicted on other charges, and sentenced in 1962, to five years in prison. in 1964 further charges were laid against him. he was convicted and sentenced to life imprisonment. these events and the depressing future that the continuance in power of the nationalist party regime must had seemed to indicate, not only for black south africans, must have been powerful factors leading sydney to question his own future as a lawyer in south africa. and then came the terrible saga of the arrest, the mistreatment while in police custody and subsequent death of steve biko. the story was told in the annual steve biko memorial lecture given by sydney at the university of cape town (my own alma mata) on 11 th september 2011. this lecture is the eleventh lecture in the ‘free country’ collection. an inquest was held into the death of steve biko. he had, after all, died while in police custody. sydney, with two colleagues, appeared at the inquest on behalf of steve biko’s widow and his mother. the inquest began on 14 t november 1977 and lasted two weeks. the verdict was that nobody was to blame for the death. the steve biko chapter of ‘free country’ contains a coruscating review of the events that had lead to steve biko’s death, of the inquest proceedings and of the verdict. it is not difficult to suppose that these must have been matters that cemented sydney kentridge’s decision to remove himself and his legal talents from south africa and to transplant them in england. these talents did not, however, post 1977, become confined to england. in october 1978 sydney gave the owen j. roberts memorial lecture at the university of pennsylvania. this is the first lecture in the ‘free country’ collection. he became a member of the botswana court of appeal from 1981 to 1988 and a judge of the courts of appeal of jersey and guernsey from 1988 to 1992. and when, following the release of nelson mandela from prison, the constitutional reforms in south africa in 1994 and the collapse of apartheid, the constitutional court of south africa was established as the highest court of the land, sydney acted as an acting justice of that court in 1995 and 1996. his main legal activity, however post 1977, has been in england. he was awarded silk and became a qc, in 1984. at that time, the attorney general was entitled each year to nominate one individual for silk. i do not know whether or not that practice still continues (i suspect it does not), but in 1984 book review 260 sir michael havers qc, the then attorney general nominated sydney. the nomination was widely acclaimed by the legal professions in england and, i expect, by many others. in 1999 sydney was knighted (kcmg) for ‘services to international law and justice’. at page (v), the first page of the ‘free country’ foreword, the authors record complimentary remarks made by lord alexander of weedon qc, which included the observation that sydney ‘is simply the most highly regarded advocate in the commonwealth’. i shall not attempt to improve on the contents of the foreword of ‘free country’ as a review and précis of the contents of the collection. i doubt whether i could. the two authors of the foreword, at page (vi), identify two themes which emerge from the ‘free country’ collection. they identify ‘...on the one hand an acute sense of the fragility of the rights and values that define a free country; and on the other hand, and at the same time, an intense appreciation of just how much such rights and freedoms which we sometimes take for granted, really matter.’ these are perspicacious remarks that are relevant to be born in mind when considering some of the political and legal issues current in this country. our present government has introduced the possibility of ‘closed material procedure’ (cmp) in an attempt to assist the obtaining of convictions against individuals charged with committing, or attempting to commit, or conspiring to commit terrorist offences. cmp has the result that certain evidence led by the prosecution in order to obtain a conviction may be withheld from disclosure to the defendant. so a defendant may find himself or herself convicted without knowing what evidence has led to this result and without having had the opportunity to give his or her answer in denial or in explanation of the incriminating evidence. this does not seem consistent with the ‘rights and freedoms’ which we take for granted. we take for granted the rule of law which is perhaps the most important bulwark on which the cohesion of a civilised society depends. but the strength and value of the rule of law depend, i suggest, on the respect it commands from those who are subject to it. if an individual does not have access to justice, whether to prosecute his claims against others or to defend himself against claims made against him, or does not have any realistic expectation of a fair trial, how can that individual be expected to have respect for the rule of law? in the south africa of the apartheid years, on which the ‘free country’ collection is based, how could the blacks have any respect for the rule of law? and if, in this country, an individual finds himself convicted of an offence on the basis of evidence which has not been disclosed to him and which he has had no opportunity to deny or explain, how can the individual have, or retain, respect for the rule of law? the damage to cohesive society that the apartheid regime produced in south africa may have been remedied or at least mitigated by the collapse of the system and the magnanimity shown by, in particular, nelson mandela, but also, no doubt, by many others. but the damage to respect for the rule of law caused by legal procedures or legal the denning law journal 261 practices that prevent a fair trial or the perception of a fair trial may have consequences, the nature of which cannot be foretold. the scene that unfolds as the lectures in the ‘free country’ collection are read underlines the importance of maintaining in our own country respect for the rule of law. ‘free country’ is a book that everyone who believes in the rule of law should read. for the purposes of right to self-determination, how does one define people in context of kashmir the denning law journal; the denning law journal 2009 vol 21 pp 49-65 forced marriage: bifurcated values in the uk# mary welstead∗ i. jamila’s story i begin with a story because, in reality, most law, and particularly family law, is about stories, stories of human encounters. my story is about a 16year-old muslim girl, let me call her jamila (not, of course, her real name) who was born in england, and lived with her parents who originated from a small village in asia. the family lived a very traditional life in england, alongside other families from a similar cultural background. jamila’s parents did not wish her to be contaminated by english values which seemed so far removed from their own. jamila’s father was concerned that his daughter had suddenly started to wet the bed at night. he took her to see an english male doctor whose surgery was close to their home in birmingham. jamila arrived for her appointment, beautifully dressed in a traditional salwaar kameez made of silk and chiffon. her father wished to remain with his daughter during the consultation with the doctor. however, the doctor insisted that he respect the confidentiality between doctor and patient, an accepted essential in england, and told the father that jamila must be allowed to speak to him on her own. the father reluctantly capitulated. # this article is based on a talk given at cap harvard law school in march 2009. 49 ∗ visiting fellow cap harvard law school, visiting professor university of buckingham. forced marriage: bifurcated values in the uk 50 the doctor very rapidly realised that jamila was intelligent and exceptionally unhappy. he was familiar with her cultural background because of his experiences with many other similar immigrant families. he knew immediately the likely source of jamila’s problems and she confirmed that he was correct in his assumption. she admitted that her father had informed her that she was to marry her cousin in a few months’ time. jamila had never met the man and knew nothing about him. what she did know was that she wished to go to university and read english. she had tentative plans to embark on a future career in journalism. jamila was in a profound state of despair; she was in a ‘no-win’ situation. if she went along with her father’s plan for marriage to her cousin, there would certainly be no freedom for her to pursue her own dreams. marriage in her society meant that she would have to live with her husband and his relatives in an extended family. she would be controlled by them. her future, a claustrophobic life as a married woman, looked bleak. however, if she objected to the marriage, she would risk suffering physical brutal treatment from her family; she would also risk emotional rejection by them. bedwetting was her sub-conscious solution to her dilemma. after his consultation with jamila, the doctor met with her father and asked him what he thought was wrong with her. the father’s response was that there was nothing wrong with jamila other than her bedwetting. he remained silent about the fact that his real concern was that the bedwetting would interfere with his plans for jamila’s marriage. at that point the doctor reluctantly gave up any attempt to help, other than to prescribe medication for jamila’s symptom which, of course, did not address the real problem. he felt unable to do anything more because had he done so, he risked the father behaving in exactly the way jamila feared. the doctor also recognised, realistically, the emotional difficulties which faced a girl like jamila from a strict asian background. she had grown up in a world of bifurcated values. at school, she spent her days in an atmosphere of freedom and encouragement of self-determination. when she returned home she lived in a cultural environment which reflected the world from which her parents had originated, a world of parental control and unquestioning obedience. jamila’s dilemma was that she wanted to become personally fulfilled yet at the same time, she loved and respected her parents and the other members of her extended family. there was a security to living in that world even though its values stultified her. if she rebelled, she would face rejection by her family and the wider community which shared her parents’ values. to whom then could she turn for support? jamila did what she was supposed to do; she married in accordance with her parents’ demands. 1 in this article, i examine the issue of forced marriage in england and 1 see theodore dalrymple “reader, she married him – alas” 1995 city journal 1. the denning law journal; 51 wales (the jurisdiction) its extent, causes and consequences, and how the government has addressed the problem and with what success.2 ii. definition forced not arranged a forced marriage is one where one, or both, of the parties entered into it under duress. the force used may be either emotional or physical, or both. the majority of these marriages involve girls under the age of eighteen although it is not unheard of for older women to be forced into marriage. the recent case of dr abedin, who was aged thirty-three, (see below) illustrates how parents may be able to trick or emotionally bribe even their adult offspring into marriage. whilst it is not unheard of for boys also to be forced into marriage against their wishes, there appear to be far fewer reports of males being coerced into marriage than there are female ones. the forced marriage unit (see below) has reported that only 15% of the cases with which it deals involve males. parents may attempt to force a male child to marry if they suspect that he is gay. the limited number of males who appear to be affected by the problem may, of course, be because men who have been forced to marry accept the situation and find alternate means of coping silently. providing they appear to conform outwardly with parental wishes, they are more likely than women to have the freedom to continue to lead lives of their own choosing including indulging in extra-marital affairs. one young intelligent and well educated male, who received a message from his grandfather in pakistan telling him that he was to marry a woman of his grandfather’s choosing, decided that he could not rebel. however, he would continue the long-term relationship which he had with his english girlfriend and would, in effect, lead a polygamous existence once his marriage in pakistan had taken place.3 the forced marriages may take place within the jurisdiction or in the country of parental origin. in some cases, victims have been tricked into travelling abroad, on the pretext that a holiday, or a family gathering, has been arranged.4 on their arrival, they are told that they are to be married. it is very difficult for a young person to rebel when he or she is in a strange place without financial resources or a passport (often confiscated by the parents on arrival in the country). there is no one to whom he or she may turn for help; the community is in this together with the parents. 2 see generally, hutchinson hayward and gupta “forced marriage nullity procedure in england and wales” brigitte clark and claudina richards, combating forced marriages: a comparative franco-english perspective [2007] ifl 75; ruth gaffneyrhys “developments in the field of forced marriage” [2008] ifl 26 3 personal communication. 4 see ns v mi [2007] 1 flr 444 (discussed below). forced marriage: bifurcated values in the uk 52 consummation of the marriage will, more often than not, take place immediately after the ceremony, frequently by force and under the influence of drugs. if it has taken place abroad, the young married couple will return to the uk, unless there are immigration issues to be resolved. if either of the parties is under the age of sixteen, the marriage will be void in the uk. arranged marriages are normally regarded as very different from forced marriages. the english judiciary has stated firmly that arranged marriages, where parents seek spouses for their children from their cultural community and allow their children a right of veto, are not to be condemned.5 they are seen as advantageous and are “to be respected and supported as a conventional concept in many societies.”6 however, the dividing line between forced marriages and arranged marriages can be a rather fine one. young people who have been brought up to respect and obey their parents’ wishes may find it difficult to object to an arranged marriage even where there are no threats of violence or overt emotional pressure. their cultural beliefs may prevent them from even recognising the covert emotional force which is a feature of some arranged marriages. iii. the extent of the problem as with many problems of a familial nature, it is not easy to state with confidence how prevalent forced marriage is. many of the victims, quite understandably, do not discuss it openly; they are too afraid to do so. many forced marriages are not categorised as such in government statistics. they are often hidden within crime statistics where they will be reported as incidences of domestic violence, rape, assault or murder. others will be hidden in statistics relating to annulment of marriage. one important, albeit limited, source of information comes from the forced marriage unit.7 the unit was set up, and funded, as a joint venture by the foreign office and home office in 2005, to deal with anyone, of any age, 5 readers might like to consider that many western parents would prefer that their children married someone from a similar background, and do everything possible short of actually arranging a marriage, to ensure that this happens eg sending children to schools or universities where they are more likely to meet people from similar backgrounds, or living in certain areas with people from a similar social class. 6 ns v mi [2007] 1 flr 444. see also re kr (a child) (abduction: forcible removal by parents) [1999] 4 all er 954; singer j “when is an arranged marriage a forced marriage?” [2001] ifl 30; re sa (vulnerable adult with capacity: marriage) [2005] ewhc 2942 (fam). 7 foreign and commonwealth office uk forced marriage unit http://www.fco.gov.uk/en/fco-in-action/nationals/forced-marriage-unit/ the denning law journal; 53 who was involved with the reality, or possibility, of a forced marriage either within, or outside of, the jurisdiction. since its inauguration, the unit has helped to rescue 58 children, eleven of whom were under the age of sixteen. the youngest girl, aged eleven, was flown back to england from dhaka, bangladesh, after her parents had agreed to marry her to a bangladeshi. the unit has seen a significant increase in the number of enquiries received. in 2008, there were 5,000 inquiries, 79% more than in 2007. one third of these were from young people under the age of eighteen. in the same year the unit’s caseload was 400. of these, 168 cases were related to marriages outside the jurisdiction, primarily in pakistan, bangladesh and india. a more recent study, which was funded by the government, revealed that the incidence of forced marriage is almost certainly much greater than had been previously thought. the study which centred on luton, a town with a high immigrant population found that more than 300 forced marriages were reported to various authorities, including the police and women’s aid organisations, in one year alone. dr nazia khanum, who was responsible for the study has suggested that the real number of forced marriages in the uk is likely to be closer to 4,000. the luton report’s victims were primarily muslim women from families of pakistani and bangladeshi origin.8 increasing awareness of the problem by the police, social workers, doctors, teachers, and a greater willingness of victims to report the abusive practice, alongside the enactment of the forced marriage act 2008 (see below), means that more accurate statistical information is likely to become available in the future. iv. explanations of forced marriage it is frequently, and wrongly, assumed that those who force their children into marriage are motivated by religious fundamentalist ideals. however, there is no religion which imposes forced marriage on its believers.9 adherence to these marriages stems from the cultural expectations, within sub-groups of certain immigrant communities who may argue that these cultural expectations have a religious element to them. dr nazia khanum, in her report on her luton study in 2008, stated that: “forced marriage is universally condemned, even by the perpetrators. few people openly support force in marriage. when it happens, the perpetrators do not say – or for the most part even believe – that they 8 nazia khanum “forced marriage, family cohesion and community engagement: national learning through a case study of luton” (2008) //www.luton.gov.uk/. 9 lord sheik, hansard, lords debates, col 1332 (january 26 2007). forced marriage: bifurcated values in the uk 54 are forcing their children into an unpleasant situation. they say and usually believe that their greater age, wisdom and experience give them a better understanding of their children’s long term welfare than the children have themselves, and that their right to assert their authority to give their children a good start in life is sanctioned by custom, religion and common sense. the children’s resistance only corroborates their immaturity.”10 forcing ones children to marry may be seen as a form of bullying behaviour and like many other types of physical or emotional bullying conduct, is motivated, to a great extent, by fear. members of these sub groups remain fiercely attached to the cultural values which were inculcated in them during their own upbringing within their cultural group in their countries of origin. they are fearful of losing their cultural identity as a consequence of coming to live in the jurisdiction. there is a cultural expectation that daughters will live at home, and be taken care of, until they marry. they may be seen as an economic burden to the family, a burden which will be relieved only by marriage. parents fear that their children will accept the values which they are subject to at school and, in particular, that their daughters will be at risk of finding unsuitable boy friends, and indulging in pre-marital sex, which might ruin any possibility of a marriage for any of their children within their cultural community. the sooner after puberty their daughters are married, the less chance there will be of this happening. perhaps, even more worrying is the practice of parents attempting to organize marriages abroad for their mentally handicapped children who would find it difficult to find a partner in the uk.11 if children reject their traditional values, parents fear that they will become estranged from them. who will then care for them in their old age? these fears are further reinforced by the fact that those who engage in the practice of forced marriage tend to live in tight knit communities which consist, primarily, of families from similar cultural backgrounds. the community is an important source of help and stability and a reminder of the ‘home’ which they have left behind. parents would rather make their children conform than risk criticism and rejection by the community. one must not ignore other economic explanations of forced marriage. it can be seen as a medium of exchange which may be used to amass, or retain, wealth, particularly so when the marriage is between members of the same extended family. marriages may also be used to create, or redeem debts between families. they permit access to british nationality for potential 10 see above n 8. 11 x city council v mb and others [2007] 3 fcr 371; re sk (an adult) (forced marriage: appropriate relief) [2005] all er (d) 130 (feb). the denning law journal; 55 migrants from the parents’ home country. this has a high financial value and may be a very valuable bargaining tool in family wealth creation. v. consequences forced marriages have very serious consequences for their victims.12 by their very nature, they involve emotional violence, and, more often than not, physical violence also.13 rape and other forms of sexual abuse are common. where the forced marriage is with an older man, young women, who lack any education relating to sexually transmitted disease, are at risk of infection. they are reluctant to ask questions about the man’s previous sexual history, and men tend not to be governed by the same strict rules, which relate to sexual behaviour, as are women. victims become isolated from their school peer group and friends. their education is disrupted because they are removed from school to be married abroad. they are more likely to have children soon after marriage and are less likely to seek medical care or help from social services. they become economically dependent on their spouse, and his family with whom the couple will live, if the family is resident in the jurisdiction. this makes it even more difficult for young women to leave an unsatisfactory marriage. they risk being ill treated by the extended family.14 where a woman is particularly recalcitrant and tries to escape from a forced marriage, severe physical brutality and even murder is not unknown.15 many victims are abducted and become prisoners of their families. in 2008, an nhs doctor, dr humayra abedin, who was aged 33, received a telephone call informing her that her mother was seriously ill. she returned to bangladesh but on her arrival realised that it was a ruse in order to force her to marry a bangladeshi man, so she alerted friends in england via a text message. when a bangladeshi human rights organization, ain o salish kendra (ask), came looking for her at the family home, her family arranged for her to be removed. her hands were tied behind her back and her head was covered with a cloth. she was bundled into an ambulance afraid that she 12 see eg geetanjali gangoli, melanie mccarry, amina razak “child marriage or forced marriage, south asian communities in north east england” (2008) and children & society www.stopvaw.org/stop_violence_against_women.html and forced marriage inquiry [2008] ifl 76. 13 re k; a local authority v n and others [2005] ewhc 2956 (fam). 14 anushka asthana and ushma mistry, the observer 5 october 2003. 15 r v nazir [2009] all er (d) 218; ursula smartt, honour killings (2006) 170 jpn 4; m welstead and s edwards “death before familial dishonour” (1999) new law journal 149 867; girl found dead in river, the guardian, wednesday 9 january 2008. http://www.stopvaw.org/stop_violence_against_women.html forced marriage: bifurcated values in the uk 56 would be killed. she arrived at a psychiatric hospital where she was injected daily with psychiatric drugs for two months. the bangladeshi court acting on a forced marriage act order (see below), issued by the english court, ordered her release and she returned to england.16 many young women, who are no longer virgins, either because they are sexually experienced or because their hymen has been damaged for other reasons, are terrified of a forced marriage. they are afraid that their lack of virginity will be discovered and this will lead to further punishment. to avoid sanctions, such women may seek hymenoplasty, more commonly known as re-virginisation surgery.17 vi. the way forward until 1999, the uk government showed a certain reluctance to acknowledge the severity of the problem of forced marriages. it believed that the existing criminal law relating to domestic violence, assault and sexual offences were adequate solutions to the problem. multiculturalism was the watchword of the day and there was a concern that the values of immigrant communities should be respected wherever possible.18 this approach left young women unprotected from the more extreme values of the immigrant sub-groups to which they belonged. furthermore, it ignored the fact that the young people involved were reluctant to have recourse to criminal law. they did not wish to criminalise their families; they only wished their behaviour to stop. however, in 1999, three separate incidents occurred which led the government to question whether a new way forward was necessary. a young asian woman, rukshana naz, was violently murdered by her brothers and mother in derby. rukshana had become pregnant by her british lover having left her husband behind in pakistan after she had been forced to marry there.19 a second couple known as ‘jack’ and ‘zena’ briggs, it was revealed by the british press, were moving from hiding place to hiding place because zena 16 the times, december 19 2008. 17 m welstead “the virtue of virginity” (2009) new law journal 159 no 7353 95; in europe, debate over islam and virginity new york times, june 11 2008; why one muslim girl became a born-again virgin for her wedding 17 december 2007, daily mail. 18 d gillborn, d youdell and a kirton, “government policy and school effects: racism and social justice in policy and practice” multicultural teaching vol 17, summer 1999 11; gender equality, cultural diversity: the british experience; moira dustin and anne phillips, cultural diversity: european comparisons paper prepared for workshop on gender equality amsterdam, june 8-9 2004. 19 m welstead and s edwards “death before familial dishonour” (1999) new law journal 149 867. the denning law journal; 57 had refused to marry her pakistani cousin. her family had employed private detectives to find the couple. they did not succeed but the couple’s life had been made very difficult by the family’s action.20 in a third case, a young woman kr, aged sixteen, left her parents home and went to live with p, her older sister who had already fled the family home. kr's father complained to the police that p had, in effect, kidnapped kr. the police helped to return kr to her father who promptly removed her to india to the home of a relative. kr wrote to p, explaining that her father had beaten her and pleading for help. p applied to the english court for kr to be made a ward of court. the judge agreed to ward kr and asked the indian authorities to find kr's put her in touch with the british high commission. kr persuaded her guards to take her to the high commission and she was returned to england. kr remained a ward of court. singer j wanted his judgment to be made clear to parents who contemplated forcing their children to marry and to the relevant ethnic and religious communities. he also wished to ensure that local authorities and others in a position to protect the interests of children took their duties seriously.21 the government finally accepted that the problem needed to be addressed more specifically and existing civil and criminal remedies required to be reinforced by other measures. after wide reaching consultation,22 the forced marriage unit was set up in 2005, as a joint venture between the home office and the foreign and commonwealth office. its remit is to assist all those who are at risk of a forced marriage, or have actually been forced into one, either in the uk or abroad. it also takes responsibility for providing information for social workers, teachers, health professionals and police who come into contact with cases of forced marriage. the unit’s website and publications provide comprehensive, and comprehensible information, giving practical advice to those at risk. it provides a dedicated confidential telephone helpline which can be accessed from the uk and abroad. the helpline is operated by trained caseworkers who understand the emotional, cultural and social issues surrounding forced marriage. the materials produced by the unit’s materials warn young people of the risks of being taken to their parents’ country of origin. they may find themselves isolated; facing intense emotional pressure; being watched all the time; having no money, or passport or; return airline ticket, and having no 20 amelia hill “runaways stalked by bounty thugs asian families pay violent hunters thousands to track down daughters” the observer, 18 april 2004. 21 re kr (a child) (abduction: forcible removal by parents) [1999] 4 all er 954 at 955. see also re sk (an adult) (forced marriage: appropriate relief) [2005] all er (d) 130 (feb). 22 “forced marriage: a wrong not a right” (fco/home office, 2005). forced marriage: bifurcated values in the uk 58 access to a telephone. the unit advises them to leave contact, passport and flight details with a friend in the uk whom they can trust. they are also advised to carry with them the contact details of the nearest uk embassy, high commission or consulate, and to try and take some money with them. if a forced marriage has already taken place, the unit advises young people how to have the marriage annulled and how it may be possible to prevent a foreign spouse from obtaining entry to, or a right to reside in, the uk. where necessary, the unit helps young people to obtain replacement passports, flights and return to the uk. if appropriate, a safe house will be found for them. the unit encourages victims to see the actions of their families as criminal conduct in spite of the fact that many victims are reluctant to do so. they may not wish to be forced into marriage but they also want to keep open the possibility of a relationship with their family in the future. now that the issue has been brought fully out into the open, the police, social workers, teachers and doctors are more aware of how to deal sensitively with young people at risk. teachers, in particular, have an important role to play. significant absence from school is one of the signs that a pupil is at risk of, or has been removed to another country for the purposes of, a forced marriage. efforts have been made to recruit the above professionals from the immigrant community who will understand, but not collude with the community and parents over forced marriages. rather they will help to identify victims and support them whilst, at the same time, endeavour to help parents understand the need for their children to remain in education and be allowed the right to self-determination. 23 it is of note that a poster produced by the forced marriage unit illustrating the horrors of forced marriage, has been rejected by some head teachers in immigrant areas. they have argued that it is offensive to minority communities. the poster shows young persons’ hands adorned with wedding rings but wrapped in locked chains.24 other organisations within immigrant communities, run by people who have experienced forced marriages, have proliferated in those cities where young people are most at risk. they have taken a robust approach to the problem.25 further efforts have been, and are being, made by the government to develop a multi -faceted approach to the prevention of forced marriages. in 23 new help lines have been set up as a result o this increased awareness. see eg www.stophonourkillings.com/. 24 see select committee on home affairs, sixth report tuesday 14 april 2009 www.parliament.uk 25 see eg www.karmanirvana.org.uk/; nazia khanum, “forced marriage, family cohesion and community engagement: national learning through a case study of luton” www.luton.gov.uk/. http://www.karmanirvana.org.uk/ the denning law journal; 59 november 2008 the minimum age for marriage visas was increased from eighteen to twenty-one years. the stated aim of this change was to protect young people from forced marriages at an age when they could be establishing a degree of independence as an adult through further education or through work.26 this is of limited help because it will do nothing to help victims who marry older men but it has sent a clear message to parents contemplating marrying their children to other young people living abroad. they will not have the right of entry to the uk. a new code of practice was published in march 2009 setting out how an application for a marriage visa or leave to remain in the united kingdom as a husband or wife will be decided if someone is identified as vulnerable to a forced marriage. indefinite leave to remain will be revoked which means the foreign national who is a party to the marriage will be liable to expulsion from the country.27 further plans are afoot to introduce a requirement for british citizens and permanent residents who are seeking to sponsor a spouse to come to the uk to declare their intention before leaving the uk and marrying abroad.28 uk government representatives hold regular consultations with their counterparts and the judiciary of those countries where forced marriages of british citizens are likely to take place.29 mirpur district in pakistan is one particular area where good relations have been forged. the mirpur police provided british officials, from the high commission, with guards equipped with ak47 machine guns to rescue one schoolgirl from leeds from the threat of a forced marriage in a rural village in mirpur. the girl had not been able to attend school and wanted to return to her mother in the uk. her father had taken her to pakistan after he left the mother. she had been beaten by him and was afraid of further beatings. she could not escape because in that part of pakistan, any unaccompanied female would be challenged and stopped if she were to attempt to leave the village. the diplomatic team, which rescued her, had a british court order, 26 www.ukba.homeoffice.gov.uk. 27 ibid. 28 ibid. 29 in february 2009, the uk’s minister responsible for consular affairs including forced marriage, gillian merron mp, arrived in pakistan on her first trip to the country to learn about the work of the high commission relating to forced marriage. she said that “we can only help victims here because of the excellent co-operation we get from the local authorities in pakistan. without the help of the police we would not be able to help those at risk get back to safety. without the understanding of local community leaders we would not be able to raise awareness of the help available to victims. and without the support of the government of pakistan we would not be able to successfully help people escape the terrible future they face.” http://ukinpakistan.fco.gov.uk/en/working-with-pakistan/ministerial-visit. forced marriage: bifurcated values in the uk 60 endorsed by a pakistani judge, to return the girl to her mother. a friend had raised the alarm, and the girl’s mother contacted the forced marriage unit who alerted the team in islamabad. they arranged their visit whilst the father was out of the country on business. the girl was taken back to a women’s refuge in islamabad and 48 hours later was on a plane back to england.30 in 2007, the government enacted the forced marriage (civil protection) act.31 lord lester introduced a private members bill because the government had dragged its heels about legislating on this issue. the bill ultimately won the support of all parties. the foreign and commonwealth office played a key role in during the bill’s passage through parliament. it is too early to gauge the effect of the act. critics have argued that it lacks teeth because it does not make forced marriage a crime.32 nevertheless, the act has drawn attention to the problem, and some perpetrators of forced marriages may now be deterred by the possibility that their previous covert behaviour will become publicised by means of court hearings. the act may also persuade victims to come forward in the knowledge that their action will not result in a criminal prosecution of their parents. it is to be noted that dr abedin, who was the first person to be rescued under the new act, asked that her parents not be punished for their conduct. the act amends the family law act 1996 and inserts a new part 4a into the 1996 act. it provides for applications for a forced marriage protection order (fmpo) not only by victims of forced marriages and those at risk of a forced marriage, but also by organizations seeking to help victims. family members may also apply if they are granted permission by the court. an fmpo may be made not only against the person or persons who are forcing someone to marry but also against third parties who are associated with the coercion. the orders may contain a power of arrest. the orders are open ended and dependent on the circumstances and may relate to conduct which takes place in the uk or abroad. the courts, therefore, have a wide range of options open to them such as seizing the respondent’s passport; requiring the respondent to reveal the whereabouts of a victim; preventing the respondent having contact with the victim; allowing the victim 30 daily telegraph, january 6 2009. 31 for a critique of the act, see ruth gaffney-rhys “developments in the field of forced marriage” [2008] ifl 26. 32 bashir ahmad, an msp has stated that: “if forced marriages were a criminal offence it would be a real deterrent and i will be bringing forward a private members bill on this.” osama saeed, chairman of the scottish-islamic foundation, said “i cannot help but feel this [decline in forced marriage] would be speeded along by effective legislation in the area…. mps took the view that it [criminal legislation] may stop victims coming forward to seek help if a parent would go to jail as a result. i don't see why criminality can't be an option, with it being left to the victim whether or not to press charges.” scotland on sunday, march 23 2008. the denning law journal; 61 to assume a new identity; ordering that a marriage may not take place; ordering the respondent that the victim may not be taken out of the country, and granting a personal protection order. the law relating to nullity of marriage has become of increasing importance in the battle against forced marriage. more young people have begun to realise that they do not have to remain in a marriage to which they did not consent. any person who is able to show that he or she did not consent to a marriage will be able to have it annulled. the marriage will be voidable rather than void which means that the petitioner must request the court to annul the marriage, unless, of course, the petitioner was under age at the time of the marriage. in the latter case, the marriage will be void ab initio and no court hearing will be necessary. in ns v mi,33 munby j reviewed the law relating to nullity of marriage in the context of a forced marriage. the petitioner, a young british girl, had lived in the uk all her life. when she was aged sixteen, she was taken to pakistan by her mother under the pretext that she was going for a holiday. her parents reassured her before they left the uk that she would not be married whilst she was there. their daughter had actually questioned them about the possibility. the young girl rapidly realised that she had been lied to, and repeatedly asked to be allowed to return home to the uk. her mother told her that she must remain in pakistan until her father arrived for a holiday, and confiscated her daughter’s passport. after several months, her father did arrive and she was told that her parents would kill themselves if she did not marry her first cousin, a young pakistani aged seventeen, whom she had never met before. she was also told that she would never return to the uk unless she went ahead with the marriage. the cousin told her that the marriage was merely a ploy to allow him to enter the uk. the marriage went ahead and the girl moved into the boy’s home for one week but did not consummate the marriage. she returned to her mother’s house in pakistan and several months later, after much pleading, returned to the uk with her mother, and had no further contact with her husband. four years later she sought a decree of nullity and maintained that her family had morally blackmailed her and pressurised her into marriage. her family, by this stage, had accepted that the marriage was a mistake. they supported the daughter in her application to have her marriage annulled. the pakistani husband did not object. section 12(c) of the matrimonial causes act 1973 provides that: 33 [2007] 1 flr 444. forced marriage: bifurcated values in the uk 62 “a marriage ... shall be voidable on the ... ground ... that either party to the marriage did not validly consent to it, whether in consequences of duress, mistake, unsoundness of mind or otherwise”.34 many of the earlier cases required the petitioner to prove that their apparent consent to the marriage was brought about by a threat of immediate danger to life, limb or liberty.35 it is doubtful whether that was ever good law,36 and is certainly no longer the case today, as munby j made clear. the test is whether the duress experienced was such as to destroy the reality of consent and override the will of the petitioner. one judge has described the test more poetically in the words of the greek poet euripides, in hippolytus, “my tongue has sworn, but no oath binds my mind.”37 whether the relevant duress has occurred or not is a subjective, and not an objective test; thus, the personality and circumstances of the petitioner is of the utmost importance. 38 munby j acknowledged that parental influences may be very subtle and reiterated his words from re sa (vulnerable adult with capacity: marriage): “where the influence is that of a parent or other close and dominating relative, and where the arguments and persuasion are based upon personal affection or duty, religious beliefs, powerful social or cultural conventions, or asserted social, familial or domestic obligations, the influence may, as butler-sloss lj put it in in re t (adult: refusal of treatment), be subtle, insidious, pervasive and powerful. in such cases, moreover, very little pressure may suffice to bring about the desired result.” 39 munby j was anxious to ensure that, particularly, where a petition for nullity is undefended, the petitioner is not merely attempting to escape from a 34 s 13(2) of the matrimonial causes act 1973 provides that proceedings must be instituted within 3 years from the date of the marriage. after 3 years have expired a petition can only be lodged if leave of the court is obtained under s 13(4) of the act. n 2000, the report of the working group on forced marriage pointed out that victims are often married young and “lack the confidence to challenge their situation” in the first years of marriage (p 7) www.fco.gov.uk/resources/. 35 see eg szechter (orse karsov) v szechter [1971] p 286, singh v singh [1971] p 226 and singh v kaur (1981) 11 fam law 152. 36 see eg hirani v hirani (1982) 4 flr 232, p v r (forced marriage: annulment: procedure) [2003] 1 flr 661. 37 staughton lj in in re t (adult: refusal of treatment) [1993] fam 95 at 121. 38 scott (falsely called sebright) v sebright (1886) 12 pd 31 at 24. 39 [2006] 1 flr 867, at para 78. see also allcard v skinner (1887) 36 chd 145 at 183 which discussed the relevance of emotional pressure in annulment cases. for in re t see [1993] fam 95 at 120. the denning law journal; 63 perfectly lawful and proper marriage which has turned out to be tiresome. 40 however, he made clear that courts must be alert to the serious matter of forced marriage, which he saw as more prevalent than many would like to believe, and make a robust response to it. he also stressed that: “we must guard against the risk of stereotyping. we must be careful to ensure that our understandable concern to protect vulnerable children (or, indeed, vulnerable young adults) does not lead us to interfere inappropriately and if inappropriately then unjustly with families merely because they cleave, as this family does, to mores, to cultural beliefs, more or less different from what is familiar to those who view life from a purely euro-centric perspective.”41 munby j was concerned that a sensitive understanding should be shown to petitioners with respect to the requirement that annulment cases should be held in open court. he explained that there might be circumstances where a petitioner might be reluctant to give evidence if certain people, such as those responsible for the duress, were to be present in court; she might be placed at risk. in those cases it would be possible for the petitioner’s evidence to be give behind a screen or via a video link. he also emphasized the protection which the criminal law could provide in the context of forced marriages which was spelt out in the government’s consultation paper, “forced marriage: a wrong not a right.”42 he mentioned that in one county court case, a sikh woman was awarded statutory damages of £35,000 under the protection from harassment act 1997. the judge described her treatment at the hands of her mother-in-law as “four months of 40 see scott (falsely called sebright) v sebright (1886) 12 pd 31 at 24, where butt j maintained that “public policy requires that marriages should not be lightly set aside, and there is in some cases the strongest temptation to the parties more immediately interested to act in collusion in obtaining a dissolution of the marriage tie. these reasons necessitate great care and circumspection on the part of the tribunal, but they in no wise alter the principle or the grounds on which this, like any other contract, may be avoided.” 41 reiterating his words in re k, a local authority v n [2005] ewhc 2956 (fam) at para 93. 42 see chapter 1, consultation paper, forced marriage: a wrong not a right (fco/home office, 2005), where it is stated that those who force others to marry and those who assist them may be found guilty of such offences as kidnapping, child abduction, false imprisonment, assault, battery and other more serious offences of personal violence, threats to kill, various public order offences, harassment contrary to the protection from harassment act 1997, child cruelty and blackmail. the list is not exhaustive. forced marriage: bifurcated values in the uk 64 hell”. vii. conclusion forced marriages are a clear breach of the human rights of young people. the universal declaration of human rights, article 16 (2) states that: “marriage shall be entered into only with the free and full consent of the intending spouses.” whilst the general recommendation no 21, of the un convention on the elimination of all forms of discrimination against women provides that: “a woman’s right to choose a spouse and enter freely into marriage is central to her life and her dignity and equality as a human being.”43 and the un convention on the rights of the child, article 19 maintains that “state parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.” it is shocking, in the true sense of the expression, that the abuse of the human rights of young people continues today in the uk. the work of the government in the last nine years and particularly since 2005 has helped to reduce the abuse, however, there is yet more to be done. the non-exhaustive list of actions which need to be taken, provided by dr nazia khanum in the luton study, should be required reading by all those interested in eradicating 43 article 12 of the european convention on human rights (echr) provides that “men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of that right.” it is arguable that this right includes not only the the right not to marry but also the requirement of free and full consent to any marriage as is required by the underlying principles of the echr of self-determination and human dignity. see also liberty’s response to the joint home office and foreign & commonwealth office consultation on forced marriage, december 2005: http://www.liberty-human-rights.org.uk/pdfs/policy06/forced-marriage-consultation the denning law journal; 65 this abhorrent and heinous practice.44 her recommendations, which include the involvement of all support services, the education of women, the encouragement of good parenting, and the involvement of communities’ and faith leaders, should be urgently followed up in the interests of all those victims, and potential victims, of forced marriages and its associated violence if they are to become empowered and able to take charge of their own future. 44 nazia khanum forced marriage, family cohesion and community engagement: national learning through a case study of luton (2008)//www.luton.gov.uk/ i. jamila’s story ii. definition forced not arranged iii. the extent of the problem iv. explanations of forced marriage v. consequences vi. the way forward vii. conclusion microsoft word 23 cs 4 halladay v2.doc 227 denning law journal 2009 vol 23 pp 227-235 case commentary recent problems in undue influence annulment funding co ltd v cowey and another [2010] ewca 711 first plus financial group v hewett [2010] ewca civ 312 john halladay* after the flood of litigation at the end of the 20th century, it was hoped that the house of lords decisions in o’brien1 and etridge2 would put an end to the uncertainties facing those wishing to take security over a family home. but as seen in the recent court of appeal decisions in annulment funding co ltd v cowey and another [2010] ewca 711 (“cowey”) and first plus financial group v hewett [2010] ewca civ 312 (“hewett”), there still remain some interesting questions and potential problems for the unwary lender. annulment funding co ltd v cowey facts in cowey, mr cowley and ms cowlam were partners in a long established relationship and had a teenage son. they were joint owners3 of a house in dulwich where they lived. the house at the time in question was worth £800,000 and was subject to a first charge of £370,000, leaving an equity of £430,000. mr cowley did not manage his financial affairs well and was made subject to a bankruptcy order.4 given that mr cowley owed about £120,000 to creditors and that his share in the equity was worth £215,000, he was advised to seek an annulment of the bankruptcy. he therefore approached the * llb (toronto), llm (cantab), barrister and solicitor, law society of upper canada, senior lecturer in law, university of buckingham. 1 barclays' bank v o'brien [1994] 1 ac 180, 195, [1993] 4 all er 417, 428. 2 royal bank of scotland plc v etridge (no 2) [2001] ukhl 44, [2002] 2 ac 773, [2001] 4 all er 449. 3 it was assumed for the purposes of the case that they were equal beneficial owners. 4 the petitioning creditor was inland revenue who were owed about £100,000. case commentary 228 claimant who was in the business of providing bridging financing on a short term basis until a more permanent mortgage could be arranged. on 3 july 2007, there was a meeting between a representative of the claimant, mr cowley, ms cowlam, a solicitor and an accountant instructed by mr cowley. at the meeting, the claimant advanced the scheme that the couple would enter into a short term mortgage to annul the bankruptcy and also instruct an associated company of the claimant to act as a mortgage broker to obtain permanent mortgage financing. mr cowley and ms cowlam executed the documents appointing the mortgage broker at the meeting. subsequently, both ms cowley and ms cowlam signed documents which resulted in £138,000 being advanced, secured by a second charge on the house. this loan was interest free for the first three months and at a rate of 1.5% per month thereafter. this money was eventually used to pay mr cowley’s creditors and resulted in the bankruptcy being annulled. in spite of the best efforts of the mortgage broker, new financing was not available. this was due to the poor credit rating of mr cowley and because financial institutions were taking a more conservative approach to mortgages. so, the temporary mortgage was not paid off. the claimant called in the loan which could not be repaid and then started proceedings against both mr cowley and ms cowlam to enforce its charge on the house. decision the trial judge found that the charge had been entered into by ms cowlam as a result of the undue influence of mr cowley and that the claimant was bound by this fact so the charge had to be set aside as against ms cowlam.5 there were various factors that acted on the trial judge’s findings of undue influence. he found that while the claimant had not misrepresented the transaction to the couple, mr cowley did not understand the transaction and he passed this misunderstanding on to ms cowlam. he found that mr cowley was under great pressure, and again he passed this pressure on to ms cowlam. he found that mr cowley had acted with gross irresponsibility in looking after his own interests and then unduly influenced ms cowlam to act against her own interests. as an alternative to actual undue influence, the trial judge found that if actual undue influence had not been proven, it could be presumed on the facts. the claimant appealed on several grounds. the first ground was that where the defence had relied on the presumption of undue influence it was not open for the judge to find actual undue influence. the second ground was that there was insufficient evidence of actual undue influence. 5 the trial judge also refused to find that ms cowlam was liable as an unsecured creditor of the claimant. the denning law journal 229 appeal (i) relationship between actual and presumed undue influence morgan, j referred to passages from the judgements of lord nichols and lord scott in the leading case of etridge. he stated: “what that passage establishes is that an issue as to whether there was undue influence involves an issue of fact. the party asserting that there has been undue influence can call direct evidence which supports such a finding. alternatively, that party can call evidence of other matters which justify the inference that undue influence was used. either way, the party is attempting to prove the fact of undue influence.”6 thus, the defence can start by attempting to prove the presumption of undue influence and in the course of this produce evidence of actual undue influence. the presumption is only a tool to answer the question of whether there had been undue influence so there was nothing wrong with the trial judge finding that undue influence had been proven, with or without the presumption.7 (ii) no evidence of undue influence the second ground for appeal were that there was no evidence to support the finding of undue influence. 8 in reviewing the transcripts, most of the blame from mr cowley and ms cowlam was directed at the claimant’s behaviour, rather than at each other. as a couple still living together, ms cowlam was reluctant to make the case that it was mr cowley’s fault. while there was little evidence of undue influence, morgan, j found that there was enough to uphold ms cowlam’s defence. mr cowley was under pressure and there was evidence that he had put pressure on ms cowlam to enter into the transaction. in addition, mr cowley had misunderstood the nature of the 6 cowley, at para 50. 7 in e peel treital, the law of contract (london: sweet & maxwell, 12th ed, 2007) p 456, it is noted that while it is acceptable for a party to plead actual undue influence and the presumption of undue influence, it would not be acceptable for a judge to find no actual undue influence, but then use the presumption to find undue influence. 8 there was some confusion which came from counsel for the claimant asserting she was not challenging the judge’s findings of primary fact. morgan, j decided to review the transcripts of the trial in any event. case commentary 230 transaction and had misrepresented it to ms cowlam. the trial judge had conflated these two findings to support his finding of undue influence. morgan, j found that the several speeches in etridge took different approaches. lord nicholls9 appeared to use misrepresentation as a form of undue influence, whereas lord scott10 was careful to treat undue influence and misrepresentation as two separate wrongs. but all agreed that the misrepresentation would allow a transaction to be set aside. morgan, j appeared to favour lord scott’s approach in finding that mr cowley’s misrepresentation to ms cowlam justified having the transaction set aside. first plus financial group v hewett facts mr and mrs hewett lived in a house they jointly owned, together with their children and mrs hewett’s mother. the main problems facing the family were financial, in particular mr hewett’s not uncommon ability to run up a huge credit card balance. this balance became so large that the combined income of the hewett’s was unable to cover the payments required. the solution was a refinancing and this required a charge over the house. mrs hewett was understandably troubled to be asked to risk her interest in the house to pay off her husband’s profligate spending but disaster was looming for him and this was the only way out. her husband swore on the lives of his children that he would amend his ways and limit his spending. so mrs hewett was persuaded to sign the charge to first plus. unfortunately, things in the hewett household deteriorated. mr hewett continued his spending. worse than that, it emerged that at the time of the execution of the charge, he had been having an affair with another woman. it also turned out that mr hewett had forged his mother-in-law’s signature as an occupant of the property on the charge. not exactly an ideal husband! mr hewett lost his job and stopped making payments to first city. he moved out of the matrimonial home to live with the other woman. he was convicted for the forgery and went bankrupt. his trustee in bankruptcy sold his equity in the house to mrs hewett for a pound. thus, his role in the proceedings had come to an end. mrs hewett was unable to repay the charge and so first plus brought an action for possession of the house. mrs hewett defended the action. she claimed that she had entered into the charge because of the undue influence of her husband and that since first city had not taken adequate steps to advise her, the transaction with mrs hewett could be set aside. 9 etridge para 36. 10 for example, etridge, para 132. the denning law journal 231 decision at trial, it was found that there was no undue influence. the wife was in a difficult position and had hard decisions to make, but she had made up her mind freely and knew exactly what she was doing. it therefore did not matter that first city had failed to take the steps to avoid constructive notice. this was overturned on appeal. briggs, lj, found that it would be wrong to limit undue influence to situations where one partner meekly submitted to the other. the decision to be made by mrs hewett required the assumption that her husband was committed to the preservation of their home life and his affair carried with it a serious risk of this home life being disrupted. because of this, mr hewett’s affair “cried out for disclosure.”11 once it was found that mr hewett had unduly influenced his wife, first city’s failure to take steps to advise mrs hewett meant that it could be in “no better position”12 than the husband. therefore mrs hewett could have the mortgage set aside as against her own interest in the property at the time of the charge. discussion (a) misrepresentation and non-disclosure using misrepresentation as some kind of wrong akin to undue influence has been long recognised. in o’brien itself, the husband misrepresented that he has only liable for half the partnership loan. this was sufficient to be treated as the same as undue influence. both cases represent extensions to this idea. cowley is closer to o’brien, but instead of a particular, material fact about the transaction as in o’brien, in cowley there is only a muddled mr cowley hoping that the transaction will lead to a permanent solution and ms cowlam being carried along in his belief. there is no finding of fraud and usually an innocent statement of intent, here the intention to find a permanent solution, would not be actionable as a misrepresentation.13 in hewitt, the husband failed to disclose a fact which was totally unrelated to the financial aspects of the mortgage. the test put forward was “whether a solicitor, consulted by mrs hewett for advice about the wisdom of the transaction, would have thought it relevant to know that her husband was, while asking for her unqualified trust, at the same time conducting a 11 hewett, para 33. 12 hewett, para 37. 13 edgington v fitzmaurice (1885) lr 29 ch d 459. case commentary 232 clandestine affair.”14 one thing that makes hewett difficult is the lack of clarity with regard to what requires disclosure. while an affair clearly destroys the relationship of trust, there is a large range of possibilities between absolute fidelity and an outright affair and many husbands will fall into this grey area. what impure thoughts and actions need be disclosed? (b) relationship of the parties at the time of the trial cowley and hewett are opposite ends of the spectrum when it comes to the issue of the relationship of the parties at the time of trial. hewett is straightforward as the husband is gone and can be blamed for the transaction. cowley is a much more difficult case as the couple are still living together and come to the courtroom arguing the same case. in cowley, the couple had the same legal representation at trial.15 on appeal, morgan j only allowed the representative to act for ms cowlam but even he commented on the reluctance to give evidence of undue influence. on the other hand, since the partners will have the same interest, there is equally the concern that they will collude in their evidence. (c) likely effect of independent legal advice in both cases, the lender was put on enquiry because of its failure to insist that independent legal advice had been given to the partner. it is therefore of interest to see what might have happened had the lender followed the recommended path. in cowley, it is somewhat speculative as to what would have happened. as the case involves ms cowlam not understanding what she was doing, it may be that an independent lawyer might have stopped the transaction from happening and structured it in another way. if this is the case, it is hard to know what mr cowley’s lawyer and accountant were doing as their advice did not stop him from proceeding without really understanding the transaction. in fairness to them, there was little discussion of the role of the lawyer and the accountant so it is not known what advice they gave to mr cowley. in hewett, it would seem that independent legal advice would not have made any difference. while it is correct that he would have viewed it as relevant if told of the affair, a commercial solicitor acting for mrs hewett might have asked her if she felt her relationship with her husband would last, but short of insisting on hiring detectives to follow mr hewett, it is hard to see 14 hewett, para 35. 15 the legal representative was, in fact, a mckenzie friend. the denning law journal 233 how the affair would have been discovered. so had the lender followed the correct procedure, it would not have made any difference to mrs hewett. (d) why the lender is affected? the logic of o’brien was the legal fiction that the lender had “constructive notice” of the wrong. in etridge, it was said that the lender is “put on enquiry” of the wrong committed, but this still involves a legal fiction. how exactly this works is still a matter of some confusion.16 this continuing confusion is shown in hewett where briggs, j says: “for those reasons i consider that mrs hewett's decision to participate in the charge of the property to first plus was, as between herself and her husband, vitiated by his abuse of her trust. since as the judge found, first plus is affected by such undue influence as may be proved to have occurred between husband and wife, it can be in no better position.”17 he does not explain what the transaction was between the husband and the wife. the transaction in question is the charge from the wife to the lender. the matter does not trouble the court of appeal in cowley and there is little on the subject. what morgan, j says is: “at paras 79 to 82 of his first judgment, the judge then made his findings as to whether the claimant was fixed with notice of the undue influence and he held that it was. it is not necessary to give further detail of his reasoning in this respect as it is not challenged on appeal.”18 “fixed with notice of the undue influence” seems to be returning to the o’brien approach of “constructive notice” and so, if anything, leads to more confusion as to why the lender has its charge set aside. conclusion in o'brien, lord browne-wilkinson's stated that his aim was to "restate the law in a form which is principled, reflects the current requirements of 16 why the explanations of the doctrine do not work is well described in m chenwishart contract law (oxford: oxford university press, 2005) ch 9.3.4. 17 hewett at para 37. 18 cowley, at para 37. case commentary 234 society and provides as much certainty as possible."19 the lack of certainty flowing from o’brien is demonstrated by the numerous cases which followed and eventually led to the decision in etridge. cowley and hewett show that the uncertainty has not ended. the obvious conclusion from etridge is that lenders who do not demand a certificate of independent legal advice are in grave danger. that much remains clear and what the lenders must do to be safe is also clear. but the role of undue influence in all of this remains uncertain. this perhaps gives us some insight into the source of the problem. if the courts wish to require lenders to give advice to the guaranteeing partner to a non-commercial loan, the only weapon available to them is to use some kind of idea of notice. but by using the tool of “constructive notice” or “enquiry”, the courts must also find a “wrong” committed by one partner at the expense of the other. in the search for the wrong, the courts have extended the range of what is wrong from undue pressure of one partner on the other to a variety of wrongs.20 now we find that to be a bit muddled about your own finances in cowley or to fail to tell of your extra-marital activities in hewitt, is equivalent to “undue influence.” undue influence is not really required to justify interference into this type of transaction. when it becomes necessary for one partner to guarantee the debts of the other and to mortgage the family home (whether to finance one partner’s business, pay off a credit card or otherwise), the family is at time of decision bordering on a crisis. there is a lot of scope for undue pressure from one partner on the other in such circumstances. but undue pressure is not necessary to make this a dangerous situation. it is the situation itself that will be putting pressure on the parties and there is scope for either or both not to really understand what is going on in the transaction. instead of focusing on the undue influence, perhaps the better approach would be just to focus on the advice to be given to the borrowers where they are raising non-purchase money21 secured by a family home. it is important that people be allowed to raise finance based on such security,22 but it is equally important that both partners understand what they are doing. this is consumer credit law rather than undue influence. it would require statutory intervention to require lenders to give the correct advice in such circumstances. but, rather than focusing on the wrongs committed by one partner against the other and making extensions of the law of undue influence 19 barclays' bank v o'brien [1994] 1 ac 180, 195, [1993] 4 all er 417, 428. 20 five possibilities are listed in n andrews contract law (cambridge :cambridge university press, 2011) p 332. 21 the difficulties of applying these principles to an acquisition of the property is shown in dunbar v nadeem [1998] all er (d) 282. 22 lord bingham in etridge para 2. the denning law journal 235 to prove such wrongs, the focus should be on what advice would be appropriate to give at the time of the mortgage. that is not advice to minimise the risk of undue influence but rather advice that would be useful when making such a major decision.23 one area would be basic business advice as was shown in cowley. is this the best way to finance the transaction? do both partners have to give security? will the money raised be used for a good purpose? how will the loan be repaid? as was shown in hewett, the other area might be family advice. if i refuse my partner’s financial plans, one consequence may be the end of the relationship. the partner may need emotional advice or may need family law advice as to their legal position on the termination of the relationship. the technical advice set out in etridge would have been of little help to mrs hewett but some relationship support might have been invaluable. it is very easy to say that an area of law is crying out for statutory reform and one can give credit to the various judges who have tried to create a workable scheme of useful advice in the absence of statutory intervention. but the solutions adopted require legal fictions which in turn create theoretical problems. cowley and hewett show that these problems continue, especially for those who receive the etridge advice and find it is of little help. it is time for parliament to look carefully at this area and sort it out. 23 s gardner (‘wives’ “guarantees of their husbands’ debts”’) [1999] 115 lqr 1, questioned whether the value of the advice given was more than symbolic. the point where the lawyer’s role as legal advisor turns a professional into a war criminal the denning law journal 157 a legal advisor’s responsibility to the international community: when is legal advice a war crime? ellia ciammaichella* introduction practically every attorney in every state of the united states of america takes an oath to uphold the us and that state’s constitution. upon taking the oath, most us lawyers become an officer of the court (“judicial officer”). as an officer of the court they are held to a higher standard of integrity and candor as is required by that state’s professional responsibility rules. as such, although an attorney is an advocate for his client, in some situations, an attorney must set aside his role as advocate and assert his role as judicial officer to maintain the integrity of the judicial system and uphold the us and state constitution. the constant tension between an attorney’s role as judicial officer and advocate occurs because giving advice about the law an attorney’s main purpose and often that advice may further criminal conduct. however, as professor newman eloquently put it, “[n]either the status of ‘lawyer’ nor the obligation to provide access to the law should exempt lawyers from the criminal liabilities which face everyone else.”1 while professor newman was specifically referring to a lawyer’s responsibility in the domestic sphere, this is equally applicable to a legal advisor’s responsibility to the international community. concededly, an attorney does not take an oath to uphold international law. however, because a lawyer should not be exempt from the law, each and every attorney, like everyone else, should be legally responsible to the international community. this article argues that there are some limited situations where a lawyer, specifically a government legal advisor, has certain basic legal responsibilities to the international community that trump his responsibility to his government. as the nuremberg trials emphasized, no government official is immune from an international crime simply because he is acting within his official capacity. rather, because the state cannot act without people to act on * b s, university of california at berkeley, 2001; jd, with honors, the george washington university law school, 2005; law clerk for the honorable alex r munson. this article was written in conjunction with professor carnahan’s law of war class at the george washington university law school. 1 joel newman legal advice toward illegal ends, 28 u rich l rev 287, 288 (1994). the denning law journal 158 its behalf and because only the person acting on behalf of the state may commit war crimes, the official is individually responsible for his actions.2 furthermore, while a legal advisor is not truly considered a policymaker, this, by itself, does not dissociate the legal advisor from the policy. accordingly, when a legal advisor is so entangled in the policy such that he breaches his responsibility to the international community, he must be held accountable for the criminality of that policy. as such, this article will analyze the extent of responsibility that a government legal advisor legally owes to the international community. as background, part ii of this article surveys two affirmative defenses that generally arise when prosecuting a government official for a war crime: official immunity and immunity for acting pursuant to superior orders. part iii suggests an analysis of whether a legal advisor has breached his international responsibility should depend on a sliding scale test that considers the legal advisor’s mens rea and the legal advisor’s influence over the illegal policy. part iv provides a practical application of the suggested analysis by evaluating four scenarios where a legal advisor is internationally responsible for playing a significant role in an international crime. background there are two main issues that, like any other government official, are relevant to prosecuting a legal advisor as a war criminal: (a) immunity for acts committed as a high government official; and (b) immunity for acts made pursuant to superior orders. a legal advisor may not claim immunity for international crimes simply because he is acting in his official capacity.3 this follows from two 2 united states v von leeb (us mil trib 1948), reprinted in 11 trials of war criminals before the nurnberg military tribunals under control council law no 10, at 462, 508 (1950) [hereinafter high command case] (“the state being but an inanimate corporate entity or concept, it cannot as such make plans, determine policies, exercise judgment, experience fear, or be restrained or deterred from action except through its animate agents and representatives”). 3 the international law commission (“ilc”) succinctly summarized this in nuremberg principle iii: “the fact that a person who committed an act which constitutes a crime under international law acted as head of state or responsible government official does not relieve him from responsibility under international law.” principles of international law recognized in the charter of the nürnberg tribunal and in the judgment of the tribunal: report of the international law commission to the general assembly, 5 un gaor supp (no 12) at 11, un doc a/1316 (1950), reprinted in [1950] 2 yb int’l l comm’n 364, 375, un doc a/cn.4/ser.a/1957/add [hereinafter nürnberg principles]; see j spiropoulos, formulation of nürnberg principles, un doc a/cn.4/22 (1950), reprinte in [1950] the denning law journal 159 underlying tenets: (1) international law is superior to domestic law; and (2) deterrence is greatest where individual responsibility is placed on the authors of criminal policies. although the superiority of international law may simply support state liability, “[i]t would be an utter disregard of reality and but legal shadow-boxing to say that only the [s]tate, the inanimate entity, can have guilt, and that no guilt can be attributed to its animate agents who devise and execute its policies.”4 rather, because the state cannot act on its own and must necessarily act through the will of its agents, the only way to deter a state’s criminal action is by making its agents, including legal advisors, criminally responsible for their personal acts.5 the principle of international law, which under certain circumstances, protects the representatives of a state, cannot be applied to acts which are condemned as criminal by international law. the authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings.6 thus, while a legal advisor’s official capacity shields him from most liability, the legal advisor is directly responsible for his actions that are criminal under international law.7 2 yb int’l l comm’n 181, 192, un doc a/cn.4/ser.a/1957/add.1; see also draft code of crimes against the peace and security of mankind: report of the international law commission to the general assembly, 51 un gaor supp. (no 10) at 14, art 7, un doc. a/51/10, corr 1, corr 2 (1996), reprinted in [1996] 2 yb int’l l comm’n 15, pt 2, 31 un doc a/cn.4/ser.a/1996/add.1, corr 1 [hereinafter draft code of p&sm] (“the official position of an individual who commits a crime against the peace and security of mankind, even if he acted as head of state or government, does not relieve him of criminal responsibility or mitigate punishment.”) 4 high command case, above note 2, at 508. 5 united states v göring (int’l mil trib 1946), in 1 trial of the major war criminals before the international military tribunal 223 (1947), available at http://www.mazal.org/default.htm [hereinafter major war criminals] (“crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”); high command case, above note 2, at 508 (“the state being but an inanimate corporate entity or concept, it cannot as such make plans, determine policies, exercise judgment, experience fear, or be restrained or deterred from action except through its animate agents and representatives.”) 6 major war criminals, above note 5, at 223. 7 sir arthur watts gives a concise explanation of a head of state’s general protections, privileges, and immunities. sir arthur watts, the legal position in international law of heads of states, heads of governments and foreign ministers, in 247 recueil des cours 19, 35-81 (1994). many of these immunities can be extended, by analogy, to other government officials. the denning law journal 160 in addition, the mere fact that an official acts in some other capacity besides a military leader does not immunize him from international responsibility. for example, although joachim von ribbentrop was the foreign policy adviser to hitler,8 the international military tribunal (“imt”) held that even assuming that von ribbentrop “was personally concerned with the diplomatic rather than the military aspect of those actions, his diplomatic efforts were so closely connected with war that he could not have remained unaware of the [illegality] of hitler’s actions.”9 furthermore, a person acting in his official capacity as a legal advisor may not simply shield himself from his initiation or creation of criminal policy by claiming that his work product is legal advice. for example, rudolf lehmann, chief of the legal department of the okw, was sentenced to seven years imprisonment for his “criminal connection” to the barbarossa jurisdiction order, the commando order, and the night and fog decree.10 in addition, joachim von ribbentrop, although the foreign policy adviser to hitler, was convicted of war crimes for his memorandum justifying the nazi’s aggressive actions on norway, denmark, and the low countries.11 concomitant with the principle that one may not claim immunity for acts within one’s official capacity is that acting pursuant to superior orders does not necessarily immunize a legal advisor from international responsibility.12 if a person cannot claim immunity for his official actions, then a junior person 8 major war criminals, above note 5, at 287. 9 id at 285. 10 high command case, above note 2, at 690-95. 11 major war criminals, above note 5, at 286 (“von ribbentrop was advised in advance of the attack on norway and denmark and of the attack on the low countries, and prepared the official foreign office memoranda attempting to justify these aggressive actions”); see richard b. bilder & detlev f vagts, speaking law to power: lawyers and torture, 98 ajil 689, 694 (2004) (“it is worth recalling that ribbentrop was convicted at nuremberg for having issued memoranda justifying the nazi preemptive strikes against norway, denmark, and the low countries in 1940”). 12 this is ilc principle iv: “the fact that a person acted pursuant to order of his government or of a superior does not free him from responsibility under international law, provided a moral choice was in fact possible to him.” nürnberg principles, above note 3, 2 yb int’l l comm’n at 375; see j spiropoulos, above note 3, 2 yb int’l l comm’n at 192-93; see also draft code of p&sm art 5, above note 3, [1996] 2 yb int’l l comm’n at 23 (“the fact that an individual charged with a crime against the peace and security of mankind acted pursuant to an order of a government or a superior does not relieve him of criminal responsibility, but may be considered in mitigation of punishment if justice so requires”). the denning law journal 161 acting pursuant to superior orders may not claim immunity for obeying or for being influenced by those superior orders.13 analysis because a legal advisor is not exempt from international law, to the extent that a legal advisor is “[c]omplicit in the commission of . . . a war crime,” he is acting criminally under international law.14 for example, under the policymaker rule, a policymaker who creates or implements a policy, order, legislation, or decree which authorizes or directs the commission of a crime is a war criminal if the crime was actually committed in the prosecution of war.15 generally, a legal advisor does not fall under the policymaker rule. however, if a war crime actually occurred, a legal advisor maybe criminally responsible for policy that directed or implemented the war crime if he understands the consequences of the policy and has enough influence to shape the policy. in other words, a legal advisor has not committed a war crime unless he has what the international military tribunal called a “moral choice.” the theory of complicity requires that a war crime actually occur because a legal advisor’s international responsibility is based on complicity, and not conspiracy, the threshold inquiry, of course, is whether a war crime actually occurred.16 thus, an official is not individually responsible 13 a legal advisor acting pursuant to superior orders, however, may not have the requisite culpability. since mere association to criminal conduct is not sufficient, acting pursuant to superior orders may effectively negate an essential part of the balancing test prescribed below. high command case, above note 2, at 484 (“[because] criminal responsibility is an individual matter[,] criminal guilt must be personal”). 14 nürnberg principles, above note 3, 2 yb int’l l comm’n at 377. 15 draft code of p&sm art 5, above note 3, 2 yb int’l lcomm’n at 23; see agreement for the prosecution and punishment of the major war criminals of the european axis, august. 8, 1945, appendix, art 6, 59 stat 1544, 82 unts 279 [hereinafter charter of the international military tribunal] (“leaders, organizers, instigators, and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.”); whitney r. harris, tyranny on trial: the evidence at nuremberg 503 (rev. ed. 1999) (“war crimes must be committed in the course of war, and must be related to war prosecution”). 16 draft code of p&sm art 2, above note 3, [1996] 2 yb int’l lcomm’n at 18-19; see, eg, high command case, above note 2, at 565 (acquitting hugo sperrle because, although he may have ordered subordinate units to force russian prisoners of war to the denning law journal 162 if an international standard was not breached17 or if the breach did not amount to a “grave harm to the international community.”18 while some international scholars have interpreted the geneva conventions to delineate war crime standards based on whether the armed conflict was international or non-international in character, the current customary international law makes no such distinction. during international armed conflict, that is armed conflict between two or more (sovran) states,19 war crimes are acts that constitute a grave breach of the geneva conventions.20 grave breaches of the geneva conventions include willful work in construction units, there was no evidence in the record that a crime was actually committed). 17 conspiracy to commit a war crime has not yet risen to the level of international responsibility. however, because a conspiracy to commit an act of aggression is the essence of a crime against peace, conspiracy is an international crime in that context. major war criminals, above note 5, at 223. some commentators, however, suggest that conspiracy, as a war crime, has gained status in the international community. see howard s. levie, the statute of the international tribunal for the former yugoslavia: a comparison with the past and a look at the future, 21 syracuse j int’l l& com 1, 11 n 60 (1995). however, conspiracy has not risen to the level of customary international law. professor little and richard barrett succinctly explained the difference between complicity and conspiracy in lessons of yugoslav rape trials: a role for conspiracy law in international tribunals, 88 minn l rev 30, 37 (2003). 18 robert k woetzel, nuremberg trials in international law 110 (2d ed. 1962); see united states v list (us mil trib1948), reprinted in 11 trials of war criminals before the nuernberg military tribunals under control council law no 10, at 1241 (1950) [hereinafter hostage case] (“an international crime is such an act universally recognized as criminal, which is considered a grave matter of international concern and for some valid reason cannot be left within the exclusive jurisdiction of the state that would have control over it under ordinary circumstances”). 19 the definition of international armed conflict is based on common article 2. geneva convention for the amelioration of the condition of the wounded and sick in armed forces in the field, august 12, 1949, art 2, 6 ust 3114, 75 unts 31 [hereinafter geneva convention i]; geneva convention for the amelioration of the condition of wounded, sick and shipwrecked members of the armed forces at sea, august 12, 1949, art 2, 6 ust 3217, 75 unts 85 [hereinafter geneva convention ii]; geneva convention relative to the treatment of prisoners of war, august. 12, 1949, art 2, 6 ust 3316, 75 unts 135 [hereinafter geneva convention iii]; geneva convention relative to the protection of civilian person in time of war, august. 12, 1949, art 2, 6 ust 3516, 75 unts 287 [hereinafter geneva convention iv]. 20 oren gross, the grave breaches system and the armed conflict in the former yugoslavia, 16 mich j int’l l783, 800 n 58 (1995); see geneva convention i, above note 19, art 49; geneva convention ii, above note 19, art 50; geneva convention iii, above note 19, art 129; geneva convention iv, above note 19, art 146; protocol additional to the geneva conventions of 12 august 1949, and relating to the the denning law journal 163 killing, torture or inhuman treatment, and willfully causing great suffering or serious injury to body or health.21 concededly, when the conflict is not of an international character, the geneva conventions do not explicitly mandate individual responsibility. common article 3, however, creates limited protection to persons participating in a non-international armed conflict.22 “guerrillas, therefore, even if unprivileged combatants and not entitled on capture to the status of prisoners of war, would appear now always to be entitled to humane treatment and trial by a regular court.”23 moreover, the international court of justice (“icj”) stated that common article 3 is the “minimum yardstick” for any type of armed conflict and constitutes customary international law.24 like grave breaches of the geneva conventions, violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture[,] . . .taking of hostages[,] . . .outrages upon personal dignity, in particular humiliating and degrading treatment[,] . . . the passing of sentences and the carrying out of executions without previous [judgment] pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples25 are all concerns that the international community does not take lightly. accordingly, if the imt’s analysis is similarly applicable to non-international armed conflict, government officials are internationally responsible for violating common article 3 or, in the alternative, responsible for violating customary international law.26 protection of victims of international armed conflicts, june 8, 1977, art 85 1, 1125 unts. 3 [hereinafter geneva protocol i]. 21 geneva convention i, above note 19, art 50; geneva convention ii, above note 19, art 51; geneva convention iii, above note 19, art 130; geneva convention iv, above note 19, art 147. 22 geneva convention i-v, above note 19, art 3 [collectively common article 3]. 23 julius stone legal controls of international conflict 567 (2d ed 1959). 24 military and paramilitary activities (nicar v us), 1986 icj 14 218 (june 27). 25 common article 3, above note 22. 26 id geneva protocol ii also deals with the rules of non-international armed conflict. see protocol additional to the geneva conventions of 12 august 1949, and relating to the protection of victims of non-international armed conflicts, june 8, 1977, 1125 unts. 609 [hereinafter geneva protocol ii]. the denning law journal 164 sufficient culpability or “moral choice” is a requisite for international criminality even if a war crime actually occurred, a legal advisor will not be internationally responsible for illegal acts unless he has sufficient culpability.27 the nuremberg military tribunal (“nmt”) in the high command case explained that the culpability requirement was extracted from “fundamental principle[s] of criminal law as generally accepted by the civilized nations of the world . . . .” id. similarly, the imt defined culpability by asking whether the actor had a “moral choice.”28 the imt determined whether the actor had a “moral choice” by analyzing the actor’s mens rea and his actual ability to influence policy on the other.29 accordingly, when a legal advisor has a high mens rea and a weak ability to influence or ignore criminal policy, he is sufficiently culpable. for example, this occurs when a legal advisor has actual knowledge of the criminality of the policy.30 actual knowledge31 satisfies the “moral choice” standard because the legal advisor knows that one choice is permissible and 27 high command case, above note 2, at 484. the nuremberg military tribunal (“nmt”) in the high command case noted that the culpability requirement was extracted from “fundamental principle[s] of criminal law as generally accepted by the civilized nations of the world . . . .” id at 510. thus, since mere association is not sufficient to support criminal responsibility, strict liability does not satisfy the culpability standard. id at 511 (“[a person] cannot be held criminally responsible for a mere error in judgment as to disputable legal questions”). 28 the international military tribunal (“imt”) acknowledged that the requisite individual culpability is satisfied when a “moral choice was in fact possible.” major war criminals, above note 5, at 224. the nmt described the requisite culpability as “a personal act voluntarily done with knowledge of its inherent criminality under international law.” high command case, above note 2, at 511. 29 in essence, the mens rea analysis tests whether the actor understood that he had a decision to make and the ability to influence policy tests whether the actor had the ability to choose between right and wrong. 30 high command case, above note 2, at 693. for example, in holding lehmann responsible for the criminality of the commando order, the nmt emphasized that “[lehmann] was well aware of the criminal nature of this order.” id at 693. 31 the model penal code (“mpc”) defines knowledge in two ways: “(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist, and (ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.” model penal code § 2.02(2)(b) (1962). “when knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.” id at 2.02(8). the denning law journal 165 the other choice is illegal. thus, the legal advisor has the chance to choose the permissible action. on the other end of the spectrum, if a legal advisor has a low mens rea but a strong ability to influence criminal policy he is criminally culpable. the axiom that ignorance of the law is no excuse speaks well for this type of situation.32 at this level of mens rea, criminal responsibility would apply “if a [legal advisor] can reasonable be expected to know that the act is a crime.”33 thus, the standard is whether a reasonable legal advisor should have known that the policy was criminal.34 in this respect, the author argues that the reasonable legal advisor standard is the general practice of legal advisors as recognized by civilized nations.35 one can appreciate this by analyzing the high command case and comparing the reasonable legal advisor with the field commander of normal intelligence (“reasonable field commander”) and the differing roles that they play in war. the nmt in the high command case reasoned that because the field commander performs in active combat and does not have the full resources that are available to legal advisors, a reasonable field commander “has the right to presume, in the absence of specific knowledge to the contrary, that the legality of such orders has been properly determined before their issuance.”36 thus, the nmt found it was excusable for a field commander to transmit criminal orders during active combat when he passed the order down the 32 woetzel, above note 18, at 118-19 (“it is clear the ignorance of the criminal nature of the act is no excuse . . ”). 33 id at 119. this sounds very similar to the mpc definition of negligence. see model penal code 2.02(2)(d). a person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. the risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation. 34 high command case, above note 2, at 512 (standard of “normal intelligence”). while the nmt is referring to the standard applicable to a commanding officer, the main tenets of the nmt’s analysis are equally applicable to a legal advisor. especially important to note is that the nmt specifically distinguishes the limited legal capacities of field commanders in active combat from those of legal advisors. id at 511. thus, this suggests that the standard as to whether an order is “criminal upon its face” depends on the ordinary legal facilities associated with a person acting within a specific duty and in the case of a legal advisor, the ordinary legal facilities are greater than a field commander. 35 the author adapts article 38 of the icj statute to a legal advisor’s work product standard. see un charter annex art 38 [hereinafter statute of the icj]. 36 high command case, above note 2, at 511. the denning law journal 166 chain of command unless the order was “criminal upon its face” or if he actually knew the order was criminal. 37 the nmt explained that an order is “criminal upon its face” if a legal opinion was not necessary to understand the illegality of the order.38 however, compared to a field commander, a legal advisor is in a better position to influence policy: a reasonable legal advisor is not generally in active combat and has the faculties to better understand the legality of the policy. thus, the legal advisor may be culpable when he does not actually know that the policy is “criminal upon its face.” on the other hand, if, after diligent research, a legal advisor cannot determine whether an act is criminal, then he would be in a situation similar to a reasonable field commander: he would not have the ability to choose between right and wrong. finally, if he had absolutely no ability to influence criminal policy(,) then no matter what his mens rea was, he had no “moral choice” and is not internationally responsible for the war crimes that occurred due to the criminal policy under the policymaker rule.39 a “moral choice” is lacking in two circumstances: (1) where the actor has no ability to influence the policy;40 and (2) where a reasonable person could not have acted any other way.41 an actor falls under the first circumstance only if he did all that he could and yet failed to resist the illegal policy. while professor woetzel suggests that a tribunal may consider the “extent an individual could resist an illegal order,”42 implying that something short of doing everything to resist the illegal policy would suffice, the justice case suggests otherwise. most telling is that in the justice case, curt rothenberger, the state secretary of the reich ministry of justice, was convicted of “aid[ing] and abett[ing] in the program of racial persecution, and notwithstanding his many protestations to the 37 id at 509; cf hostage case, above note 18, at 1236 (“[i]f the illegality of the order was not known to the inferior, and he could not reasonably have been expected to know of its illegality, no wrongful intent necessary to the commission of a crime exists and the inferior will be protected”). this “clearly criminal” or criminality “on its face” standard suggests a recklessness standard. see model penal code 2.02(2)(c) (1962). 38 high command case, above note 2, at 512. 39 some tribunals seem to refer to this as an affirmative defense. 40 in the circumstance where the actor has no ability to influence the policy, it is unclear whether the burden of proof is on the prosecution or the defense. 41 this is a claim of duress. according to the final judgment in prosecutor v. erdemovic, “duress does not afford a complete defence to a soldier charged with a crime against humanity and/or a war crime involving the killing of innocent human beings....” prosecutor v. erdemovic, no it-96-22-a, appeals chamber judgment 17 (october 7, 1997), available at http://www.un.org/icty. 42 see woetzel, above note 18, at 118-19. the denning law journal 167 contrary [the nmt held that] he materially contributed toward the prostitution of the ministry of justice.”43 however, where an actor “protests” against the application of the policy “opposes it in every way short of open and defiant refusal to obey it” and yet the policy is applied, the actor is not criminally responsible for the resulting illegal actions connected to the policy.44 a good example of an actor who fell into this circumstance is von leeb and his connection to the commissar order.45 the nmt held that von leeb did all that he could do and therefore, was not responsible for the resulting catastrophe of the commissar order.46 an actor is in the second circumstance if a “reasonable man would apprehend such imminent physical peril as to deprive him of freedom to choose the right and refrain from the wrong[.]”47 in such circumstance, the actor is not personally responsible for the crime committed. according to the nmt in the einstazgruppen case, the reasonable man would weigh the harm caused by obeying the illegal policy against harm caused by disobeying the illegal policy.48 arguably, as judge cassese stated in his separate and dissenting opinion in prosecutor v. erdemovic, this balance sounds like one simply must take the “lesser of two evils.”49 however, tribunal decisions have required the illegal policy to be more than the lesser of two evils. for example, in the justice case, even though “[t]he evidence conclusively show[ed that in order to maintain the ministry of justice in the good graces of hitler and to prevent its utter defeat by himmler's police,” franz schlegelberger, acting reich minister of justice, was convicted under counts two and three of the indictment.50 43 united states v altstötter, (us mil trib1 948), reprinted in 3 trials of war criminals before the nuernberg military tribunals under control council law no 10, at 1118 [hereinafter justice case]. 44 high command case, above note 2, at 557. 45 id at 555-58. 46 id at 557-58. 47 id at 509. 48 united states v ohlendorf (us mil trib1 949), reprinted in 4 trials of war criminals before the nuernberg military tribunals under control council law no 10, at 471 [hereinafter einsatzgruppen case] (“if the nature of the ordered act is manifestly beyond the scope of the superior’s authority, the subordinate may not plead ignorance of the criminality of the order. if one claims duress in the execution of an illegal order it must be shown that the harm caused by obeying the illegal order is not disproportionately greater than the harm which would result from not obeying the illegal order”). 49 prosecutor v erdemovic, no it-96-22-a, separate and dissenting opinion of judge cassese, 16 (october 7, 1996), available at http://www.un.org/icty. 50 justice case, above note 43, at 1086-87. the denning law journal 168 for several reasons, this is an onerous standard to meet. one, past cases suggest that the tribunals will assume that a person has some type of influence, in effect shifting the burden of proof onto the accused.51 two, because the standard does not consider the actor’s subjective view, the tribunal may disregard the irrationality that the actor may face when attempting to reason whether the physical peril was imminent.52 three, the reasoning that an actor must accomplish before making a decision is hardly practical. first, the legal advisor must assess the imminence of the physical peril.53 second, the legal advisor must evaluate the extent of damage the illegal order would cause. third, the legal advisor must compare the competing factors and then make a decision. fourth, this entire analysis must be based on foresight, rather than a tribunal’s hindsight analysis. this onerous task would put anyone in a difficult position, but the nmt has said that being in a “difficult position” is not enough!54 finally, even if an actor in the second circumstance understood the extent of harm, this balance must greatly favor obeying the illegal policy. the nmt stated: “the harm caused by obeying the illegal [policy] is not disproportionately greater than the harm which would result from not obeying the illegal [policy].”55 thus, unless the choice is to kill or be killed, the balance does not seem to greatly favor obeying the illegal policy.56 accordingly, while an affirmative defense exists on paper, it rarely meets reality.57 hypothetical scenarios concededly, there are many circumstances where legal advice is too tangential to the creation or the implementation of the criminal policy for the legal advisor to meet the requisite culpability for international criminal 51 high command case, above note 2, at 509 (emphasizing that this is a defense of coercion or necessity). thus, the author considers this an affirmative defense. 52 id 53 id (“the defendants in this case who received obviously criminal orders were placed in a difficult position, but servile compliance with orders clearly criminal for fear of some disadvantage or punishment not immediately threatened cannot be recognized as a defense”). 54 id 55 einsatzgruppen case, above note 48, at 471. 56 prosecutor v erdemovic, no it-96-22-tbis, trial chamber ii judgment, 17 (march 5, 1998), available at http://www.un.org/icty. 57 while it may seem difficult to fathom a legal advisor finding himself in “imminent physical peril,” judges and prosecutors may find themselves in this situation. see, eg, id at 954. the denning law journal 169 responsibility. however, there are several situations where the legal advisor acts under the guise of counsel but actually enters the realm of establishing or implementing policy. in this respect, this article proposes that a high-ranking legal advisor may be internationally responsible for his “advice” under two alternative theories. the first theory, addressed in scenario one through three, is direct responsibility based on the legal advisor’s furtherance of a criminal endeavor. this theory applies when a legal advisor gives advice knowing that it will be used for an international criminal purpose or knowing that it will be used to formulate an illegal policy. this is similar to standards established in the model rules of professional conduct as set out by the american bar association and is based on customary international law that planning, instigating, ordering, committing, aiding, abetting, or pursuing a common international criminal purpose is a war crime.58 the second theory, addressed in scenario four, is command responsibility. unlike the first theory, this theory does not require the advice to be criminal. instead it is based on the idea that the legal advice created a “permissive climate” for illegal conduct.59 scenario one: a legal advisor incorporates his own criminal idea into the final version of the policy the simplest instance is scenario one where a legal advisor incorporates his criminal idea into the final version of the policy.60 in this situation, the legal advisor is not even acting as a counselor. to the extent that the legal advisor claims that he is simply giving legal advice, the “legal advice” is merely a façade to hide his attempt to make criminal policy. for example, the nuremberg military tribunal (“nmt”) found that rudolf lehmann’s criminal idea, to punish individuals that would have been 58 prosecutor v tadic, no it-94-1-t, trial chamber ii opinion and judgment 249, 674 (may 7, 1997). 59 bilder & vagts, above note 11, at 691. 60 several legal advisors at the annual legal adviser’s meeting “stressed that the [legal advisor’s] function was also part of the policy formulation process.” hans corell, third legal adviser’s meeting at un headquarters in new york, 87 a.j.i.l. 323, 325 (1993) [hereinafter corell, third legal adviser’s meeting]. thus, the author suspects that legal advisors may, more often than not, encounter scenario one. the informal meeting, organized by the “legal advisers of the ministries of foreign affairs of canada, india, mexico, poland, and sweden, and with the assistance of the legal counsel of the united nations[,]” is meant to create an atmosphere where legal advisors can spontaneously debate over the developing issues in international law. hans corell, legal advisers meet at un headquarters in new york, 85 ajil 371, 371-73 (1991) [hereinafter corell, first legal adviser’s meeting]. the denning law journal 170 acquitted by the judicial process, was integrated into the final version of the barbarossa jurisdiction order.61 finding that lehmann was the originator of the idea, the nmt held “[lehmann] responsible for [his] criminal connection with, participation in, and formulation of [the barbarossa jurisdiction order].”62 in addition the nmt also held lehmann criminally liable for his contribution in enlarging the scope of the original terror and sabotage decrees.63 thus, where the legal advisor is the originator of the criminal idea and that criminal idea becomes part of the final policy, the legal advisor is responsible for the resulting criminal policy. scenario two: a legal advisor compiles other people’s criminal ideas and is the main factor in determining the final version of the policy a legal advisor in scenario two compiles other people’s criminal ideas into one concise criminal policy. 64 “if the basic idea is criminal under international law, the staff officer who puts that idea into the form of a military order, either himself or through subordinates under him, or takes personal action to see that it is properly distributed to those units where it becomes effective, commits a criminal act under international law.”65 a good example of a legal advisor in scenario two is lehmann and his connection to the barbarossa jurisdiction order, the commando order, the night and fog decree, and the terror and sabotage decree.66 61 see high command case, above note 2, at 691-93. the tribunal found that it was lehmann’s idea to completely deny jurisdiction to the courts, in effect giving the troops complete discretion to dispose cases. id at 692-93. this “left the door wide open to the decision of an officer of at least the rank of a battalion commander to impose such collective punishments as he saw fit.” id at 692. lehmann’s idea was particularly important because, in lehmann’s own words, “troops will get rid of just those cases which they consider awkward, namely, the doubtful cases by handling them over to the courts.” id at 692-93. thus, lehmann intended to permit the punishment of individuals that would have been acquitted for lack of evidence. id at 693. this, the imt held, was criminal: “this provision in the order . . . is one of the most vicious parts of the orders.” id 62 id at 693; see id (“this provision in the order [was] obviously [] not derived from hitler, or keitel, or jodi ...”). 63 id at 695. 64 the nmt described it this way: “[t]he basic criminal offense is in the essential part a staff officer [or legal advisor] performs in making effective the criminal whole.” id at 693. 65 id at 513. 66 high command case, above note 2, at 691-95. although lehmann’s ideas were incorporated into the barbarossa jurisdiction order, the nmt emphasized that the denning law journal 171 a legal advisor’s responsibility in scenario two is based on both a deterrence and culpability rationale. the deterrence theory is based on the fact that no matter how much authority one person has, he cannot implement that policy by himself.67 those who draft policy are “indispensable” and an “essential contribution to the final execution” of criminal policy.68 thus, a person with a criminal idea necessarily needs other people to help implement it by consolidating it into a coherent policy. by deterring those key players, the originator of the criminal idea will be greatly impeded from implementing the criminal idea. in addition, a legal advisor in scenario two meets the requisite culpability because underlying scenario two are two important features: (1) that a legal advisor acting in this capacity has the obligation and resources to detect the criminality of the ideas; and (2) that a legal advisor acting in this capacity has substantial influence over the final structure of the criminal policy. first, unlike the intermediate administrative officer who routinely transmits orders and has no time to screen the orders he transmits, a reasonable legal advisor has time to deliberate over the policies.69 furthermore, unlike field commanders, a reasonable legal advisor has time and resources to detect the illegality.70 in fact, a legal advisor’s specialty is to determine the legality of a proposed conduct. second, unlike both the intermediate administrative officer and the field commander, a legal advisor in scenario two has substantial influence over the final structure of the criminal policy. because the legal advisor performs a “fundamental and essential function . . . in producing military orders [and policy] from an original idea[,]”71 a legal advisor is the “main factor in lehmann was also responsible for his contribution to the final form of that order. id at 693. 67 the nmt recognized this in its analysis of crimes against peace. id at 486 (“no matter how absolute his authority, hitler alone could not formulate a policy of aggressive war and alone implement that policy by preparing, planning, and waging such war”). 68 id at 515. 69 see id at 510 (explaining that the intermediate administrative function of transmitting an order does not amount to the requisite personal guilt because “transmittal is a routine function[,]” “in many instances [it] would be handled . . . without being called to his attention[,]” and the person transmitting “is not in a position to screen orders so transmitted”). 70 see below part ivb. cf. high command case, above note 2, at 511 (explaining that because a field commander makes decisions in active combat and has limited legal facilities, “[a field commander] has the right to presume, in the absence of specific knowledge to the contrary, that the legality of such orders has been properly determined before their issuance”). 71 high command case, above note 2, at 691. the denning law journal 172 [implementing] the final form” of the policy.72 a legal advisor acting in this capacity “modifie[s] those ideas within his own sphere up to a certain point and place[s] the whole into an effective military order which [is] transmitted to the troops and carried out.”73 therefore, a legal advisor acting in this capacity has the requisite culpability to be held accountable for the criminal policy. scenario three: a legal advisor attempts to cover a criminal policy with the spin of legality in scenario three, a legal advisor is criminally implicated where he is aware of the criminal nature of the policy, but nevertheless, attempts to give it an appearance of legality.74 scenario three has at least two variants. in the first variant, a legal advisor, knowing that the policy is criminal, revises the criminal policy to give it an impression of legality.75 this is especially significant in modern international law because legal advice is often an attempt to cover illegal policy with legal analysis.76 for example, rudolf lehmann was held criminally responsible for a part of the commando order for “ma[king] certain suggestions as to methods which might, by a strained construction, give some appearance of legality and be suitable for publication; constructions which he apparently did not believe himself.”77 in the second variant, a legal advisor, knowing that the policy is criminal, justifies the legality of the criminal policy in hopes of convincing other people that the criminal policy is actually legal.78 it would seem that such an analysis 72 id at 693. as of 1939, customary international law made it criminal for the participation of military officers at the policy influencing level. id at 489. 73 id 74 id at 693-94. 75 see id 76 newman, above note 1, at 287; see stanko nick, the role of the legal adviser in modern diplomatic services, in modern diplomacy (jovan kurbalija ed., 1998), at http://www.diplomacy.edu/books/mdiplomacy_book/ (last visited april 14, 2005) (“it is significant that even countries and their leaders who bluntly break fundamental rules and principles of international law almost invariably make a considerable effort to wrap their acts in a legally presentable or at least justifiable form”). 77 high command case, above note 2, at 693-94. 78 see major war criminals, above note 5, at 286. often in a situation like this a legal advisor is attempting to “assist or provide a ‘road map’,” which amounts to complicity in the criminal conduct. bilder & vagts, above note 11, at 694 (citations omitted). because legal advisors often encounter this situation, the international law commission has expressed doubt over the value of a legal advisor’s opinion as evidence of customary international law. see manley o. hudson, article 24 of the statute of the international law commission, un doc a/cn.4/16, reprinted in the denning law journal 173 could never amount to a war crime. after all, it is the client who chooses to act. however, legal advice is often requested to further a criminal endeavor.79 in some situations, a reasonable legal advisor would understand that the most likely reason a client would request advice on the specific issue is to avoid the consequences of a crime already committed or a crime that may be committed in the future.80 for example, ribbentrop was held criminally responsible for justifying aggressive actions on norway, denmark, and the low countries.81 unlike the previous two scenarios, however, a legal advisor in scenario three may not have the requisite culpability.82 first, because the legal advisor is reviewing someone else’s final product, he has less influence over the resulting policy. second, the conduct of either revising a policy to conform to international standards or justifying the legality of the policy falls under genuine legal counsel. thus, a more demanding mens rea standard is required to prevent the presumption of criminal responsibility based on mere association to the criminal policy. third, the most important reason for a higher mens rea standard is that the conduct alone may merely be a result of negligence or mistake. before a legal advisor counsels his client on the legal consequences of a proposed conduct, the legal advisor must determine what the law is at that time and then determine whether the proposed conduct may violate the law.83 when the issue touches upon public international law, the legal advisor must not only interpret applicable treaties, but must also recognize “international custom, as [1950] 2 yb int’l lcomm’n 24, 30, un doc a/cn.4/ser.a/1957/add (“reserve may be needed in assessing the value of [opinions of legal advisers] as evidence of customary international law, for the efforts of legal advisers are necessarily directed to the implementation of policy”). 79 newman, above note 1, at 287. 80 id (“there might be legitimate reasons for such a request, but the most likely reason would be a desire to avoid prosecution for a committed crime”). 81 see major war criminals, above note 5, at 286 (“von ribbentrop was advised in advance of the attack on norway and denmark and of the attack on the low countries, and prepared the official foreign office memoranda attempting to justify these aggressive actions.”); see bilder & vagts, above note 11, at 694 (analogizing ribbentrop’s issuance of the memoranda justifying the attack to a legal advisor’s criminal actions). 82 as stated in part iv, above, culpability is a function of both the legal advisor’s actual ability to influence policy and the legal advisor’s mens rea. 83 this is similar to the two-part test that judge anderson expressed in his concurring opinion in the krupp case. united states v krupp (us mil trib1949), reprinted in 9 trials of war criminals before the nuernberg military tribunals under control council law no 10, at 405 (1950) [hereinafter krupp case] (“(a) [w]hat was the law at the time in question and (b) does the evidence show prima facie that the defendants or any of them violated it”). the denning law journal 174 evidence of a general practice accepted as law, the general principles of law recognized by civilized nations, . . . [and] judicial decisions and the teachings of the most highly qualified publicists of the various nations . . . .”84 thus, because “[the] law is not static, but by continual adaptation follows the needs of a changing world[,]”85 it is especially difficult for a legal advisor to determine the current understanding of issues not yet solidified by international consensus. in this respect, knowledge that the policy is actually criminal would suffice. in addition, if the policy were criminal on its face, a legal advisor would have sufficient culpability to be held responsible for the policy.86 there are three practical reasons for applying criminality for scenario three. one, a person knowledgeable in the law is the best person to hide the criminality of the policy, thus making the crime more difficult to detect. two, “there may be strong pressures on government lawyers [or legal advisors] to ‘bend’ or ignore the law in order to support policy decisions . . . .”87 if the legal advisor is not held responsible for his advice, then he will not be deterred from caving into these strong pressures, even when his legal insight strongly suggests that the policy is criminal. three, because “foreign policy decisions are often highly political, and policymakers and others who influence policy are often skeptical concerning the relevance of international law[,]”88 a legal advisor who informs the government that the proposed conduct is most likely illegal will have strong influence on the final policy decision. this is especially so when the legal advisor is counseling a democratic, law-abiding country.89 84 statute of the icj art 38, above note 35; see major war criminals, above note 5, at 221. 85 major war criminals, above note 5, at 221. 86 high command case, above note 2, at 509. the nmt also suggested that believing the policy to be criminal is sufficient. id at 693-94. however, if this is the case, how much faith must a legal advisor have in the legality of a policy before he is willing to venture into revising or justifying a policy? the author suggests that the nmt merely interchanged the meaning of “belief” with “knowledge.” otherwise, this would rely too heavily on the reasonable legal advisor standard, which is quite malleable. 87 bilder & vagts, above note 11, at 693 (citations omitted); see c g weeramantry, universalising international law 212 (2004) (“all too often at the highest levels of government and foreign and military policy there is an expectation that legal opinions will conform to the wishes of those in authority . . . ”). 88 bilder & vagts, above note 11, at 693 (citations omitted). 89 more and more states have a policy of abiding by international law. weeramantry, above note 87, at 211 (“signs are discernible at the highest levels of state policy of an increased readiness to abide by the dictates of international law”). the denning law journal 175 scenario four: a legal advisor creates or implements a policy, which while not illegal, creates a permissive atmosphere for criminal conduct unlike the previous three instances where the legal advisor is held responsible for his direct participation in a criminal conduct, in scenario four, the legal advisor, if at all, is held criminally accountable based on the rubric of command responsibility.90 the best example of scenario four is field marshall wilhelm von leeb’s connection to the barbarossa jurisdiction order in the high command case.91 as commander of his army group, he put the barbarossa jurisdiction order into the chain of command.92 the nmt concluded that even if the order was not criminal, it “was at best ambiguous in respect to the authority conferred upon a junior officer to shoot individuals who were merely suspected of certain acts.”93 furthermore, the nmt found that von leeb did not prevent the illegal application of the order by clarification or otherwise by including further instructions.94 “having set this instrument in motion, he must assume a measure of responsibility for its illegal application[,]”and is thus, indirectly responsible for failing to place safeguards within the order.95 the theory behind command responsibility is twofold. first, “[b]y doing nothing he cannot wash his hands of international responsibility.”96 a legal advisor has the ability to influence the application of the policy, and probably understands that he has this capability. thus, when a reasonable legal advisor has reason to know that although the policy is legal, it is ambiguous, he is just as culpable as a person who implements the illegal policy. second, in implementing an ambiguous policy, the legal advisor has breached his duty.97 because the machinery of the government not only requires the forging and implementation of policy but also the application of that policy by others, a 90 art 5 of the draft code of crimes against the peace and security of mankind succinctly summarizes command responsibility. “an individual shall be responsible for a [war crime] if that individual... [f]ails to prevent or repress the commission of such a crime in the circumstances set out in article 5....” draft code of p&sm art 2, above note 3, [1996] 2 yb int’l lcomm’n at 18-19. 91 high command case, above note 2, at 521-25. 92 id at 560. 93 id for more information about the barbarossa jurisdiction order, see above note 61 and accompanying text. 94 high command case, above note 2, at 560. 95 id at 561-62. 96 id at 512. 97 see colonel william g eckhardt, command criminal responsibility: a plea for a workable standard, 97 mil l rev 1, 5 (1982) (emphasizing that command responsibility does not attach unless the actor has breached a duty). the denning law journal 176 reasonable legal advisor should know that policy is created so that others will follow that policy. thus, the person in charge of implementing that policy has the duty to create a policy that is sufficiently definite. therefore, the doctrine of command responsibility requires that a person, such as a legal advisor, who “knew or had reason to know, in the circumstances at the time, that the subordinate was committing or was going to commit such a crime[, the legal advisor must] take all necessary measures within their power to prevent or repress the crime.”98 therefore, while the policy is not necessarily criminal under international law, where a reasonable legal advisor would understand that the policy creates a permissive atmosphere for criminal conduct, the legal advisor should be held accountable for the actions that follow from that policy. conclusion this analysis of culpability is narrowly tailored by the policy of deterrence. a person who leads others to commit a crime and the person who actually commits the crime share equal culpability in the commission of the crime.99 the nuremberg military tribunal (“nmt”) in the high command case succinctly described it this way: “it is self-evident that national policies are made by man. when men make a policy that is criminal under international law, they are criminally responsible for so doing. this is the logical and inescapable conclusion.”100 furthermore, “[i]f the policy under which it is initiated is criminal in its intent and purpose it is so because the individuals at the policy-making level had a criminal intent and purpose in determining the policy.”101 in addition, because the masterminds of the criminal violations are not involved with the physical action of committing the crime, failure to hold these masterminds accountable for their complicity would undermine the principle of deterrence. since “[t]he acts prohibited are without deterrent effect unless they are punishable as crimes[,]”102 holding those creating the elaborate scheme has significant deterrent effect. “we refuse to accept the notion that lawyers may do anything, including violating the law, to zealously advocate their clients' interests and then avoid criminal prosecution by claiming that they were ‘just doing their job.’”103 in many states in the united states a legal advisor is domestically responsible for his work product. his responsibility flows to his client and to the licensing 98 draft code of p&sm art 6, above note 3, [1996] 2 yb int’l lcomm’n at 25. 99 harris, above note 15, at 503. 100 high command case, above note 2, at 490. 101 id at 486. 102 hostage case, above note 18, at 1240. 103 united states v cueto, 151 f.3d 620, 634 (7th cir 1998). the denning law journal 177 authority that permits him to practice law.104 in addition, when the legal advisor is counseling the government on issues involving international law, the legal advisor has an obligation not only to the general welfare of the citizenry105 and the specific government agency requesting counsel,106 but also to the international community. especially in this age of globalism, a legal advisor’s responsibility necessarily extends to the international community.107 because “international law is not the product of an international legislature,”108 the legal advisor’s role is especially important. therefore, when a legal advisor takes a direct role in an international crime, he must be held responsible for it. in addition, where the legal advisor takes a direct role in a policy that while technically legal, creates a permissive atmosphere for illegal conduct, the legal advisor must be responsible for creating safeguards to prevent the possibility of illegal conduct. 104 in the united states, a lawyer is responsible for his advice to his client and may be sued in civil court under professional malpractice. see, e.g., doe v hughes, 838 p 2d 804 (alaska 1992) (rendering the law firm guilty of professional malpractice because it breached the duty of care owed to the client). generally, a lawyer may also be disciplined by the state’s highest court for professional misconduct. the model rules of professional conduct state that [i]t is professional misconduct for a lawyer to: (a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the rules of professional conduct or other law; or (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law. model rules of prof’l conduct r 8.4(a) (2004); see, eg, in re carnesi, 784 n.y.s.2d 892 (ny app div 2004) (accepting attorney’s resignation and ordering that the attorney be disbarred and his name stricken from the roll of attorneys). 105 see, e.g., united states v cueto, 151 f.3d 620 (7th cir. 1998) (affirming defendant lawyer’s conviction for conspiracy to defraud the united states and obstruction of justice). 106 bilder & vagts, above note 11, at 693. 107 see generally winston p. nagan, lawyers roles, identity, and professional responsibility in an age of globalism, 13 fla j int’l l131 (2001) (explaining the various roles of a legal advisor). 108 major war criminals, above note 5, at 221. the denning law journal 178 a legal advisor’s responsibility to the international community: when is legal advice a war crime? analysis the theory of complicity requires that a war crime actually occur hypothetical scenarios scenario one: a legal advisor incorporates his own criminal idea into the final version of the policy scenario two: a legal advisor compiles other people’s criminal ideas and is the main factor in determining the final version of the policy scenario three: a legal advisor attempts to cover a criminal policy with the spin of legality scenario four: a legal advisor creates or implements a policy, which while not illegal, creates a permissive atmosphere for criminal conduct conclusion the denning law journal 181 denning law journal 2007 vol 19 pp 181-217 the prohibition of the muslim headscarf: contrasting international approaches in policy and law timothy welch introduction law and state policy towards the muslim headscarf differs widely from country to country.1 western states in which the wearing of the headscarf is, or has been, a contentious issue, tend to follow one of two broad theoretical approaches: assimilationalist or culturally pluralist, although rarely in a pure form. often policy will be made up of one, whilst containing threads of the other. this article will focus on the law and state policy predominantly in six countries where the headscarf issue has arisen, and where different political or legal approaches have been adopted, giving rise to different results or consequences. often the veil debates in each country will give rise to the same broad issues. for example, integration, religious freedom, secularity and health and safety are all debated in respect of the muslim headscarf. however, it is often the case that one issue will be more important or prevalent in one particular country than in another. for example in the uk integration has been highlighted in the recent debates, but in the us the concerns rest with the concept of religious freedom, per se. in france and turkey there has been a need to protect secularism, where the veil has been particularly attacked as a form of pressure by muslims on others or else regarded as a symbol of the oppression of women. bans on the headscarf have been attempted in germany based on employment law and in canada on health and safety grounds. in other european countries concerns have centred on immigration issues or public security. state policy tends to be driven by various factors including the particular state’s historical makeup, immigration and demography, public opinion and political pressure, as well as the theoretical issues which underlie and inform the debate. islamic dress before embarking on this comparative study on the muslim headscarf it is necessary to make a few observations about islamic dress which differs widely in many countries and is found in many different forms. some women 1 see leyla sahin v turkey application 44774/98 echr paras 53 – 57. the prohibition of the muslim headscarf: contrasting international approaches 182 wear only a head covering, leaving the face visible. this has different names but is more commonly known, and will be referred to here, as the hijab.2 the jilbab is an “unfitted, long sleeved, ankle length gown.”3 the niqab is a term for cloth which covers the body and entire face, leaving only the eyes visible.4 the burka is an all enveloping robe which covers the entire body except for the eyes which are concealed under a net. in this article the term headscarf will be used generically in referring to any form of islamic head covering, but the correct terms described above will be recalled when referring to a specific item. it is a matter of contention as to whether or not the wearing of islamic dress is a religious requirement, obligatory on muslims and required by the koran. this is debated amongst islamic scholars and muslims alike. even where it can be agreed that there is some form of obligatory dress requirement, there is little consensus as to what form this should take.5 this article does not seek to answer, or even attempt to answer what is really a theological question. here, the contention from the beginning and throughout is that the wearing of any islamic dress is a matter of faith. faith can take many different forms; it can be personal and subjective. it is not therefore possible to quantify reasons for the wearing of any form of islamic dress nor is there a desire to attempt this but it is accepted ultimately that it is a manifestation of religious belief in a legal sense.6 this is widely accepted. indeed of all the countries which are discussed below there have been no serious legal arguments advanced which contend that islamic dress, in any of the forms which it may take, is not an expression of faith in one form or another, and certainly no court has reached such a conclusion. assimilation and cultural pluralism when examining the law and state policy in western countries, in respect of the wearing of islamic head coverings, it is useful to have in mind two 2 fadaw el guindi, s v hijab. the oxford encyclopaedia of the modern islamic world (oxford university press 1995. 3 ibid. 4 ibid. 5 shadid w and van koningsveld, muslim dress in europe: debates on the headscarf, journal of islamic studies, 2005 16:1 pp35-61. 6for example this is the case with the echr see article 9.1 and leyla sahin v turkey application 44774/98 echr, the iccpr see article 18 (1) and general comment number 22 of the united nations human rights committee, adopted on 20 july 1993 doc ccpr/c/21/rev1/add.4. http://www.ingentaconnect.com/content/external-references?article=0955-2340(2005)16:1l.35[aid=6823735] the denning law journal 183 broad policy approaches which, as sebastian poulter points out,7 most theoretical analysis, in respect of state response to ethnic diversity, tends to focus; the dichotomy between assimilation, on the one hand, and cultural pluralism, on the other.8 assimilation entails “the absorption of minorities into the mainstream culture of the majority community.”9 dominant british social attitudes,10 as well as recent political opinion,11 appear to support this view. however, the united kingdom, on the whole, has not favoured assimilation as a policy option. at first sight, assimilation might appear to smack of intolerance. however, poulter points out, there are “rational arguments in favour of assimilation which merit serious consideration.”12 assimilation can go some way in guarding western values, by preventing departure from minimum standards of acceptable behaviour; it can promote equality before the law in its failure to allow special legal minority status; it can, it is argued, allow minorities to break free from a cycle of disadvantage and discrimination–presumably this is done by making everybody the same. lastly assimilation can prevent physical segregation within communities.13 this approach has largely formed french thinking in respect of religious insignia in schools. indeed such an approach is highlighted in french public opinion,14 history15and law.16 cultural pluralism on the other hand signifies a very different approach. “advocates of cultural pluralism not only seek to affirm the value of greater diversity in enriching the overall life of the nation, they also reject the notion that minorities should be encouraged or induced to surrender their identities in 7 s poulter, muslim headscarves in school: contrasting legal approaches in england and france, oxford j legal studies 1997 17: 43-74 8 s poulter, muslim headscarves in school: contrasting legal approaches in england and france, oxford j legal studies 1997 17: p 46. 9 ibid p 46. 10 hence the old saying; when in rome, do as the romans do. 11 harman h, why i want to see the veil gone from britain, available at www.newstateman.com/200610160019; should immigrants try to be 'more british'? bbc, wednesday, 12 december, 2001. 12 s poulter, ‘muslim headscarves in school: contrasting legal approaches in england and france’, oxford j legal studies 1997 17: p 47. 13 s poulter, muslim headscarves in school: contrasting legal approaches in england and france, oxford j legal studies 1997 17. 14 the war of the headscarves, feb 5th 2004, the economist. 15 david howarth and georgios varouxakis, contemporary france: an introduction to french politics and society, oxford university press, london 2003. 16 for example the principle of laccite, provided for in 1905. http://www.newstateman.com/200610160019 the prohibition of the muslim headscarf: contrasting international approaches 184 order to gain economic advancement.”17 such an approach requires a careful balance; it is generally accepted18 that there should be limitations in allowing for diversity,19 nevertheless allowances must be made so as to respect diversity and minority identity.20 the united kingdom in the uk between 1948 and 1956 assimilation had been considered a desirable policy approach;21 this is demonstrated in statements made by politicians of the time. however a 1966 speech given by lord jenkins, the then home secretary, highlighted a shift in british thinking: “i define integration…not as a flattening process of assimilation but as equal opportunity, coupled with cultural diversity, in an atmosphere of mutual tolerance.”22 this position was reaffirmed by john major, as prime minister, who said “it is a fundamental objective of the uk government to enable members of ethnic minorities to participate freely and fully in the economic, social and public life of the nation, with all the benefits and responsibilities which that entails, while still being able to maintain their own culture, traditions, language and values.”23 more recently, david blunkett, on the other hand, appeared to support a shift back towards assimilation when he said this; “if we are going to have social cohesion we have got to develop a sense of identity and a sense of belonging."24 one might well question whose sense of identity he is suggesting we develop. blunkett refers to this as “shared identity based on membership of a political community, rather than forced assimilation.”25 it was around this time that the home office introduced “citizenship classes”.26 17 s poulter, muslim headscarves in school: contrasting legal approaches in england and france, oxford j legal studies 1997 17: p 48. 18 s m poulter (1987) `ethnic minority customs, english law and human rights', iclq, vol. 36, pp. 589-615. 19 certain minimum standards will not be compromised, for example female circumcision., 20 for example sikhs are exempt from wearing protective helmets on motorcycles. 21 s poulter, muslim headscarves in school: contrasting legal approaches in england and france, oxford j legal studies 1997 17. 22 ibid page 48. 23 ibid see page 49. 24 independent on sunday 9 december. 25 what does citizenship mean today? sunday september 15, 2002 observer. 26 http://www.ind.homeoffice.gov.uk/british_citizenship/english/homepage.html. http://www.ind.homeoffice.gov.uk/british_citizenship/english/homepage.html the denning law journal 185 recently the issue of minority integration has returned to the forefront of political thinking, with the focus placed firmly on the muslim veil. the spark which ignited this recent and ongoing debate came from comments made by jack straw that the veil is a “visible sign of separation”. this view was quickly backed by senior cabinet ministers, for example harriet harman who said that women are held back by the veil, which is “an obstacle to women’s participation, on equal terms, in society”.27 tony blair also entered the debate stating that the veil is a “mark of separation which made some outside the [muslim] community feel uncomfortable”.28 much of the recent headscarf debate in the uk has arisen in respect of and focused upon the niqab and, as will be seen below, practical arguments have been made against the wearing of the niqab in schools and other institutions, such as in courts. however at root the issue appears to be the integration, or perhaps assimilation, of minorities into mainstream british society. to that end much of the debate has spilled over onto the wearing of the headscarf in general. certainly some generically view islamic head coverings as a deviation from or direct affront to integration into mainstream british society. in an article published in the times saira khan,29 contestant on bbc’s “apprentice”, made a scathing attack on the headscarf which she viewed as “particularly wrong in britain.”30 she said that it “sends out a clear message; i don’t want to be part of your society”.31 khan is not alone in this line of thinking, which appears to be shared by the archbishop of york who said “the veil does not conform to norms of decency”.32 laws which prohibit the headscarf also have the support of the vatican, endorsed in a statement made by cardinal martoni who said this: “it [prohibition] seems elementary to me and it is quite right that the authorities demand it”.33 these statements show a clear push towards a policy of assimilation. the express hostility towards the muslim headscarf in recent months has been rather worrying. a society in 27 harman h, why i want to see the veil gone from britain, available at www.newstateman.com/200610160019. 28 blair's concerns over face veils, bbc news, tuesday, 17 october 2006: jones g, blair wades into muslim veil row, available at http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2006/10/17/ublair.xml. 29 khan. s, why muslim women should thank straw, the times october 9 2006. 30 ibid. 31 ibid. 32 petre j, bbc frightened of criticising islam, says archbishop, the telegraph 15th november 2006. 33 willey d, vatican enters muslim veil debate, bbc14 november 2006. http://www.newstateman.com/200610160019 http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2006/10/17/ublair.xml the prohibition of the muslim headscarf: contrasting international approaches 186 which our choice of dress is restricted or regulated at law is of deep concern and, as the archbishop of canterbury points out “politically dangerous”.34 khan however advances a simple but misconceived solution to the recent dilemma; immigrants who come to britain should fit into the society which they have chosen as their home. khan cites as an example concessions made by her own mother when first arriving in the uk: “without making any fuss she removed her scarf at work and put it back on when she clocked out”.35 khan also offers some practical advice to those who find their cultural or religious practice in conflict with mainstream social norms: “if you don’t want to integrate, then what the hell are you doing here? why don’t you just go and live in an islamic country?”36 however khan’s approach appears to favour an outright ban on islamic head coverings in the public sphere which is on the extreme and goes some way towards missing the point, which is this: western, liberal, democracies are, or at least profess to be, free, tolerant societies which offer their citizens and residents freedom of expression, religion and freedom of choice. when approached from this position, khan’s question – “what the hell are you doing here?”-perhaps requires a different answer than that which she provides: people come to britain because they are afforded rights: the right to freedom of religion and manifestation of religious belief. however it is accepted that in a culturally pluralistic society there must be, and are, limitations.37 there must be respect for religion, but the rights and freedoms of others are important also. in the veil context it could be that what we are seeing in the uk is the thrashing out of the issues, prior to a balance being found. it may be that, if the wearing of the niqab adversely impacts on the rights and freedoms of others, then in certain and limited circumstances restrictions may have to be made. this was the approach taken by a school in west yorkshire.38 headfield church of england junior school in dewsbury suspended a classroom assistant, who refused to remove her niqab, arguing that children could not hear or understand the assistant and the veil was thus interfering with pupils learning.39 this was accepted by the local mp shalad melik40 34 gledhill r, let people wear cross or veil, says archbishop, the times 27th october 2006. 35 khan. s, why muslim women should thank straw, the times october 9 2006. 36 ibid. 37 poulter, s.m (1987) `ethnic minority customs, english law and human rights', iclq, vol 36, pp. 589-615. 38 headfield church of england junior school dewsbury west yorkshire. 39 norfolk a, suspended teacher should have removed veil, say muslim leaders, the times 14 october 2006. 40 mp for dewsbury. the denning law journal 187 who said it was reasonable for the school to ask that the veil be removed.41 this has also been the approach taken by imperial college london which banned the niqab from university premises, but has allowed girls to wear the hijab.42 this is a compromise which has ministerial support.43 perhaps it is this kind of balance that the country must find. however when viewed from a religious freedom perspective this is not as reasonable as first it might appear. religious expression is a subjective concept measurable only by the extent an individual feels they are manifesting their religious belief. in the veil context wearing the hijab in place of the niqab can be beyond compromise because for some at least, the hijab can be no replacement, as it is simply not in accordance with or a manifestation of their personal religious belief.44 nevertheless as poulter points out, in a multi ethnic society limitations have to be made45 and therefore compromises must be found. it is not possible to say what form this will take in the uk as the dust has yet to settle. perhaps it must be so that where the veil is genuinely and substantially interfering with, and infringing upon, the rights and freedom of others, and where no suitable alternative measures or compromise can be found, restrictions must be made. indeed provision is made for restrictions of religious practice under article 9 (2) of the european convention on human rights. however in that regard any limitation in respect of any item must be made in accordance with strict applications of proportionality and high thresholds should be met.46 making bans on the manifestation of religion and religious belief is not something which should be taken likely. though there has clearly been a shift in political thinking towards the veil in the u.k, there has been no expressly stated desire to legislate against it, as has been the case in france where a ban has been made against the wearing of all islamic head coverings and other religious insignia in french state schools. the french ban, which is discussed later, was reasoned by a desire to protect 41 norfolk a, suspended teacher should have removed veil, say muslim leaders, the times 14 october 2006. 42 tarlo e, the hidden features of the face veil controversy, 23rd october 2006, available at www.open.ac.uk/arts/fergson -centre/discussion-docs/disc-etarlo-veil23octo06.htm. 43 higher education minister bill rammell supports this veil, see – beyond unreasonable expectations, the guardian, 11th september 2006. 44 r (on the application of begum) v headteacher and governors of denbigh high school hl [2006] ukhl 15, [2006] all er (d) 320 (mar) (approved judgement). 45 s m poulter, (1987) `ethnic minority customs, english law and human rights', iclq, vol 36, pp 589-615. 46 a requirement of both article 9 (2) echr and article 18 (3) iccpr. http://www.open.ac.uk/arts/fergson-centre/discussion-docs/disc-etarlo-veil-23octo06.htm http://www.open.ac.uk/arts/fergson-centre/discussion-docs/disc-etarlo-veil-23octo06.htm the prohibition of the muslim headscarf: contrasting international approaches 188 the french secular state.47 this is not an interest the uk can be said to share. under charter vi of the school standards and frameworks act 1988 provision is made for worship and religious education in british state schools. the uk is not a secular state, and it would not be possible to defend a ban on the same basis as have the french without a significant overhaul of united kingdom educational law and schooling standards. however attempts have been made, and continue to be made, to ban the headscarf in british state schools, and other public institutions the denbigh high school case in 2002, 15 year old shabina begum was sent home from school for refusing to remove her jilbab (long sleeved, ankle length gown). her case was recently heard by the house of lords and provides the best indication as to the current law in the uk in respect of the veil in british public institutions. ms begum had claimed that wearing the jilbab was a manifestation of her religious belief, but the school had insisted that only the prescribed variation of the school uniform may be worn. guidance from the department of education and skills states that “whilst pupils must adhere to a school uniform policy, schools must also be sensitive to the needs of different cultures, races and religions. schools are expected to accommodate these needs, within a general uniform policy”.48 however the school argued it had done just that. denbigh high school is a school which has pupils from many different religious and ethnic backgrounds.49 prior to issuing a school uniform the school had entered into consultation with religious leaders from all faiths. it subsequently opted for as a uniform the shalwar kameez.50 this, the school was advised, could be worn by children of different faiths,51 and also satisfied 47 rapport au président de la république 2003,available at ; http://lesrapports.ladocumentationfrancaise.fr/brp/034000725/0000.pdf; statement made by jacques chirac, 28/01/04, available at: www.info-franceusa.org/news/statmnts/2004/chirac_secularism012804.asp. 48 department for education & skills; www.teachernet.gov.uk/management/atoz/u/uniform/. 49 r (on the application of begum) v headteacher and governors of denbigh high school, queens bench division [2004] elr 374 paras 22 – 29. 50 traditional "punjabi suit" consisting of long knee, calf, or even ankle length loose fitting. 51 opinion of legal department to the islamic cultural centre in regents park london, see r (on the application of begum) v headteacher and governors of denbigh high school, queens bench division [2004] elr 374. http://lesrapports.ladocumentationfrancaise.fr/brp/034000725/0000.pdf http://www.info-france-usa.org/news/statmnts/2004/chirac_secularism012804.asp http://www.info-france-usa.org/news/statmnts/2004/chirac_secularism012804.asp http://www.teachernet.gov.uk/management/atoz/u/uniform/ the denning law journal 189 the requirements of the islamic faith.52 the school insisted that this should be worn by all pupils, including begum. the court of appeal however held that begum’s right to manifestation of religious belief under article 9 of the european convention on human rights53 had been infringed.54 it was for the school to justify an interference with begums article 9 right under the conditions set out in art 9 (2).55 but the school had not approached the issue from this direction; rather it had merely insisted that the uniform of compromise must be worn. the court did however leave some room for manoeuvre stating that “it would not be impossible for the school, if the matter was approached from the right direction, to justify the schools policy with regard to another pupil adopting the same position”.56 the court even provided some guidance to schools.57 the house of lords58 did not agree.59 the house held that the court of appeal’s approach had been procedurally mistaken for three main reasons: “first, the purpose of the human rights act 1998 was not to enlarge the rights or remedies of those in the united kingdom whose convention rights have been violated but to enable those rights and remedies to be asserted and enforced by the domestic courts of this country and not only by 52 ibid. 53 european convention on human rights, article 9 (1): everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 54 r (on the application of begum) v headteacher and governors of denbigh high school, queens bench division [2004] elr 374. 55 european convention on human rights article 9 (2): freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others. 56 judgement of mummery lj, r (on application of begum) v headteacher and governors of denbigh high school 140, court of appeal (civil division) [2005] ewca civ 199, [2005] all er, para 88. 57 ibid, see lord brooke paras 81 -82. 58 r (on the application of begum) v headteacher and governors of denbigh high school hl [2006] ukhl 15, [2006] all er (d) 320 (mar) (approved judgement). 59 lord nicholls of birkenhead and baroness hale of richmond dissenting. the prohibition of the muslim headscarf: contrasting international approaches 190 recourse to strasbourg60… secondly, it is clear that the court's approach to an issue of proportionality under the convention must go beyond that traditionally adopted to judicial review in a domestic setting61… thirdly, and as argued by poole in his article cited above, pages 691-695, i consider that the court of appeal's approach would introduce ‘a new formalism’ and be ‘a recipe for judicialisation on an unprecedented scale’… what matters in any case is the practical outcome, not the quality of the decision-making process that led to it.”62 the house of lords viewed the issue of interference as a debatable question, placing particular significance on justification under article 9 (2). in relying on leyla shain v turkey,63 lord bingham said this: “the need in some situations to restrict freedom to manifest religious belief; the value of religious harmony and tolerance between opposing or competing groups and of pluralism and broadmindedness; the need for compromise and balance; the role of the state in deciding what is necessary to protect the rights and freedoms of others; the variation of practice and tradition among member states; and the permissibility in some contexts of restricting the wearing of religious dress.”64 the house concluded that “the school was entitled to consider that the rules about uniform were necessary for the protection of the rights and freedoms of others”.65 this ruling was however restricted to the denbigh case and their lordships made very clear it applied to no other: “it is important to stress at the outset that this case concerns a particular pupil and a particular school in a particular place at a particular time. it must be resolved on facts, which are now, 60 r (on the application of begum) v headteacher and governors of denbigh high school hl [2006] ukhl 15, [2006] all er (d) 320 (mar) (approved judgement) para 29. 61 ibid para 30. 62 ibid para 31. 63 leyla sahin v turkey (application no. 44774/98) 29 june 2004. 64 r (on the application of begum) v headteacher and governors of denbigh high school hl [2006] ukhl 15, [2006] all er (d) 320 (mar) (approved judgement) para 29. 65 ibid para 58. the denning law journal 191 for the purposes of the appeal, agreed. the house is not, and could not be, invited to rule whether islamic dress, or any other feature of islamic dress, should be permitted in the schools of this country. that would be a most inappropriate question for the house in its judicial capacity, and it is not one, which i shall seek to address.”66 since the denbigh ruling there have been further bans made on the headscarf. one related to a prohibition imposed on a legal representative appearing before an immigration tribunal. she was asked to remove her niqab after a judge said he could not hear her properly.67 following the incident mr. justice hodge offered judges guidance on the wearing of veils in courts and tribunals where he said this: “legal advisers and solicitors may wear the islamic veil in court unless it interferes with the interests of justice”.68 lord chief justice lord phillips has said that full rules are being drawn up.69 in another, the case of the niqab in the school in west yorkshire mentioned above, an employment tribunal found that there had been no religious discrimination and upheld the schools decision, but awarded the teaching assistant £1,100 for injury to feelings.70 the assistant has said she will appeal the decision.71 more recently still, and ongoing at the time of writing, a school in buckinghamshire72 has prevented a 12 year old girl from wearing her niqab. the girl, or moreover her father,73 initiated legal proceedings by way of judicial review.74 at the high court counsel for the girl, known only as x, argued that the schools decision to ban the niqab was irrational,75 and 66 ibid para 2. 67 lawyers ‘can wear veils in court’ bbc friday, 10 november available at http://news.bbc.co.uk/1/hi/uk/6134804.stm. 68 ibid. 69 ibid. 70 mp tells veil woman ‘let it go’ bbc 20 october 2006 available at http://news.bbc.co.uk/1/hi/uk_politics/6069012.stm. 71 ibid. 72at the time of writing the identiy of the and the school, and the 12 year old girl involved had not been released to the public due to an anonymity order. see ‘parent fights over child's veil’ wednesday, 24 january 2007 bbc news; available at http://news.bbc.co.uk/2/hi/uk_news/education/6294225.stm. 73 ‘parent fights over child's veil’ wednesday, 24 january 2007 bbc news; available at http://news.bbc.co.uk/2/hi/uk_news/education/6294225.stm. 74 ‘legal fight for school veil’ 2 february 2007 bbc news, available at http://news.bbc.co.uk/go/pr/fr/-/2/hi/uk_news/education/6341815.stm . 75 ‘school veil ban ‘irrational’, court told’ 8 february 2007, the guardian. http://news.bbc.co.uk/go/pr/fr/-/2/hi/uk_news/education/6341815.stm http://news.bbc.co.uk/1/hi/uk/6134804.stm http://news.bbc.co.uk/1/hi/uk_politics/6069012.stm http://news.bbc.co.uk/2/hi/uk_news/education/6294225.stm http://news.bbc.co.uk/2/hi/uk_news/education/6294225.stm the prohibition of the muslim headscarf: contrasting international approaches 192 contrary to article 9 (1) echr76 the judge at the high court hearing, mr justice silber, made several comments which raised the issue of protecting the rights of others who may be affected by students wearing the veil. for example he said that "everyone knows these days how security-conscious head teachers have to be at school. they have to be able to glance around and recognise who's there." he further stated that “barristers had to react to judges' facial expressions, in the same way that teachers reacted to pupils' facial expressions”.77 such comments may be seen as somewhat revealing, however the judge stressed that he was not expressing an opinion one way or the other.78 it will be interesting to see how this case is decided and whether, whatever the decision may be, it is appealed and heard in a higher court such as the house of lords, or at strasbourg. certainly a ruling on the issue of the niqab in schools could add some legal clarity to this specific question of law which increasingly the courts are being asked to rule upon. as it stands, the law is not altogether clear in the uk. whilst article 9 will apply the house of lords has not given specific guidance as to how this should be applied in veil cases, and one must look to strasbourg case law which provides states with a wide margin of appreciation in that regard. this is discussed in detail later. the denbigh case does appear to suggest that the house of lords will uphold a ban, on what appears to be a low level of interference for the purposes of article 9 (2). this position, coupled with the british political hostility towards the veil, is somewhat in contrast with the approach taken in the united states where religious freedom is fiercely protected. the united states in the us religion and religious freedom are highly regarded issues considered extremely important to the nation as a whole.79 the americans have approached religious freedom from a cultural pluralistic position, although there are limitations. for some in the us, america gets religious freedom “remarkably right”80 but others take the view that the us supreme court demonstrates a “clear and unmistakable hostility towards religious 76 ibid. 77 ibid. 78 ibid. 79 hearing before subcommittee on the constitution, civil rights and property rights of the senate judiciary committee, united states senate, one hundred eighth congress beyond the pledge of allegiance: hostility to religious expression in the public square, june 8, 2004. 80 ibid testimony of melissa rogers p 146. the denning law journal 193 expression”81. . . and. . . “local governments take a similar view”.82 rarely do americans express an opinion that religious freedom has gone too far. this approach to religious freedom, which is reflected in us law,83 provides a significant level of protection for the wearing of the islamic veil. the first amendment of the united states constitution84 protects the free exercise of religion,85 and prohibits the government from passing laws which establish an official religion making preference of one over another.86 the us supreme court, which is responsible for the legal interpretation of the constitution, has from an early stage upheld the importance of religious belief under the free exercise clause. although the court has made clear there are limitations to religious expression and religious freedom is not superior to the law,87 supreme court jurisprudence offers the headscarf a high level of protection. tinker v des moines school district “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of expression at the school gates.”88 this was the view expressed by mr. justice fortas in the supreme court’s ruling in tinker v des moines.89 a comment which is revealing of the strident defence of religious liberty taken by the supreme court in the us. the court in tinker held that the wearing of black armbands by students in protest against the war in vietnam was closely akin to “pure speech”90 and protected under the free exercise clause. although the court did not consider the issue of the headscarf, or religious dress, the ruling offers a significant degree protection to girls wishing to wear their headscarves in schools, and the court further formulated a test which may be applied in respect of the same: expression under the first amendment, which includes religion and the manifestation of religious belief, may not be interfered with where it does not 81 ibid opening statement of hon john cornyn, us senator state of texas p 3. 82 ibid. 83 not least the first amendment of the constitution. 84 first amendment: “congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” 85 free exercise clause. 86 establishment clause. 87 davis v beason, 133 us 333 (1890). 88 ibid. 89 tinker v des moines school district, 393 us 503 (1969). 90 ibid per mr justice fortas. the prohibition of the muslim headscarf: contrasting international approaches 194 “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.”91 there are no cases in the us which such a line of argument has succeeded in respect of the headscarf. the compelling interest test traditionally a widely accepted92 hoop through which the government must jump in order to restrict religious expression is the “compelling interest test”. here the government is required to show “a compelling interest…which justifies the substantial infringement of an applicant’s right to religious freedom”,93 and even then, it must be achieved by the least restrictive means possible.94 where a law unduly burdens the practice of religion, even though neutral on its face and uniformly applicable to all citizens, it will be unconstitutional.95 the supreme court has therefore been robust in its protection of religious freedom. however in 1990 there was a sea change in the interpretation of the free exercise clause. in smith96 the compelling interest test was replaced, now allowing for the government to demonstrate merely that a law did not target a particular religion and was neutral and generally applicable.97 under this interpretation a law banning the headscarf therefore could only be upheld where it demonstrably does not target islam or the wearing of the veil as a religious practice. the smith decision was extremely unpopular in the us and was responded to by congress with the passing of the religious freedom restoration act (rfra).98 the rfra restored the compelling interest test, although in fact went further than this99 and was subsequently struck down as unconstitutional by the supreme court.100 however many states enacted their own versions of 91 ibid. 92 introduced in sherbert v verner 374 us 398 (1963) see also wisconsin v yoder 406 us 205 (1972). 93 sherbert v verner 374 us 398 (1963). 94 thomas v review bd., ind empl. sec div, 450 us 707 (1981). 95 wisconsin v yoder 406 us 205 (1972). 96 employment division v smith, 494 us 872 (1990). 97 ibid. 98 passed in 1993. 99 the supreme court in city of boerne v flores, archbishop of san antonio, et al (1997) no 95-2074, held that the rfra forced states to provide more protection than was required by employment division v smith. 100 city of boerne v flores, archbishop of san antonio, et al (1997) no 952074. the denning law journal 195 the rfra at state level.101 though slightly confusing, and will doubtless be the subject of further change, the present state of the law is that the rfra remains as a source of protection, applicable to federal laws.102 tinker is applicable and laws which are discriminatory or targeted will be unconstitutional. though since smith there is increased scope for the government to argue for a prohibition of the veil, there remains a reasonably high threshold which must be met. as a matter of us policy towards the veil, a memorandum issued by bill clinton103 is indicative of the us administrative approach to religious freedom: “nothing in the first amendment converts our public schools into religious free zones”.104 under the heading “student garb” clinton provides that “students may display religious messages on items of clothing”,105 and he mentioned the headscarf in particular where he said this: “when wearing particular attire such as yamulks and headscarves, during the school day is part of student’s religious practice, under the religious freedom restoration act schools generally may not prohibit the wearing of such items.”106 further guidelines issued in 1995,107 and which have been said to carry considerable authority,108 set out that religious symbols may be “displayed on items of clothing to the same extent that [students] are permitted to display other comparable messages.”109 the guidelines also expressly prohibit religions from being “singled out for suppression.”110 schools are however afforded “substantial discretion in adapting policies relating to school dress.”111 there is no general right to be “exempted from religiously neutral 101 including arizona, connecticut, florida, idaho, illinois, missouri, new mexico, oklahoma, pennsylvania, rhode island, south carolina and texas. see douglas laycock, theology scholarships, the pledge of allegiance, and religious liberty: avoiding the extremes but missing the liberty, 118 harv l. rev 155 (2004). 102 gonzales v o centro espírita beneficente união do vegetal, 546 us (2006). 103 then president. 104 bill clinton: memorandum dated july 12, 1995 to attorney general janet reno and secretary of education richard w riley about religious expression in public schools, para 4. 105 ibid para 18. 106 ibid. 107 guidelines on religious expression in schools available at www.ed.gov/speeches/08-1995/religion.html. 108 hearing before subcommittee on the constitution, civil rights and property rights of the senate judiciary committee, united states senate, one hundred eighth congress beyond the pledge of allegiance: hostility to religious expression in the public square, june 8, 2004. 109 ibid. 110 ibid. 111 ibid. http://www.ed.gov/speeches/08-1995/religion.html the prohibition of the muslim headscarf: contrasting international approaches 196 and generally applicable school dress rules based on religious belief.”112 to that end the guidelines restate the law in smith. the bush administration has also issued guidelines on religious freedom in schools,113 and has been praised for its “sensitivity to this issue.” 114 an example of the bush policy towards religious freedom in schools, and here the muslim headscarf in particular, is highlighted from the case of nashala hern, a 12 year old student from oklahoma who was excluded from her school115 for wearing her hijab. this case, reported widely both in the us116 and internationally,117 did not invoke a ruling on the headscarf because it was settled out of court. although the schools lawyers relied on the government guidelines in arguing that “there is no federal right to wear religious attire”118 it was the government which came to herne’s defence. the assistant attorney general for civil rights said this: “the department of justice will not tolerate discrimination against muslims or any other religious group.”119 it is not entirely clear why the school took exception to the wearing of the hijab120 although it has been suggested this was “particularized hostility towards the muslim faith.”121 what is clear is that the school backed down and the issue was resolved in the form of a consent order122 in which 112 ibid. 113 ‘guidance on constitutionally protected prayer in public elementary and secondary schools’ 7 february 2003 us department of education, available at www.ed.gov. 114 hearing before subcommittee on the constitution, civil rights and property rights of the senate judiciary committee, united states senate, one hundred eighth congress beyond the pledge of allegiance: hostility to religious expression in the public square, june 8, 2004, testimony of melissa rogers p 146. 115 muskogee public school oklahoma. 116 ‘girl's head scarf fuels debate on religious freedom’ april 2, 2004 cnn available at http://www.cnn.com/2004/law/04/01/hearn/index.html. 117 ‘us opposes oklahoma headscarf ban’ wednesday, 31 march, 2004 bbc available at http://news.bbc.co.uk/2/hi/americas/3585377.stm. 118 ibid. 119 department of justice briefing statement available at www.osdoj.gov/opa/pr/2004/may/04_crt_343.htm. 120 other students were allowed to cover their heads on medical grounds, see american jewish congress praises oklahoma religious accommodation settlement, (may 19 2004) available at http://ajcongress.org/pages/rels2004/may/may04_03htm. 121 hearing before subcommittee on the constitution, civil rights and property rights of the senate judiciary committee, united states senate, one hundred eighth congress beyond the pledge of allegiance: hostility to religious expression in the public square, june 8, 2004, testimony of melissa rogers p 146. 122 eyvine hearn (united states intervenor) v muskogee public school. consent order ca no: civ 03-598-s. http://www.ed.gov http://www.cnn.com/2004/law/04/01/hearn/index.html http://news.bbc.co.uk/2/hi/americas/3585377.stm http://www.osdoj.gov/opa/pr/2004/may/04_crt_343.htm http://ajcongress.org/pages/rels2004/may/may04_03htm the denning law journal 197 the school made a number of fresh policy decisions on the veil, including a procedure for permitting girls to wear it, and training for teachers in respect of the same.123 perhaps, as one commentator puts it, the school merely “saw the inequity in its practice.”124 on the other hand it may be that the intervention by the government was decisive in the dispute, proving to be an effective protective measure which can be relied upon additionally to rights provided at law. in spite of this there are however various other examples of restrictions being placed on religious freedom in the us, including on the headscarf.125 this may be an accelerating tendency in the us; born perhaps out of an ignorance of islam,126 the law, or from post 911 islamophobia. in that regard the protection offered at law to those who wear the veil, and robust approach taken by the government, is all the more pressing and a commendable example which other countries may wish to follow. canada canada, like the us but starkly contrasted with some european countries such as france, is a country in which the freedom of religion, and manifestation of religion in the public sphere is protected at constitutional level.127 public opinion in canada appears to support the wearing of the 123 ibid. 124 congress praises oklahoma religious accommodation settlement, (may 19 2004) available at http://ajcongress.org/pages/rels2004/may/may04_03htm. 125 ‘women sues after being ordered to remove her headscarf during prison visit (wisconsin), the associated press, may 25 2005; muslim women fights to wear veil in driver licence photograph, cair press, december 12 2004; educators struggle to uphold dress code in light of religious accommodation (texas) houston chronicle, september 19 2006. 126 hearing before subcommittee on the constitution, civil rights and property rights of the senate judiciary committee, united states senate, one hundred eighth congress beyond the pledge of allegiance: hostility to religious expression in the public square, june 8, 2004, testimony of melissa rogers p 146. 127canadian charter; fundamental freedoms: 2. everyone has the following freedoms: (a) freedom of conscience and religion. (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. (c) freedom of peaceful assembly. (d) freedom of association. http://ajcongress.org/pages/rels2004/may/may04_03htm the prohibition of the muslim headscarf: contrasting international approaches 198 headscarf,128 and the canadian government has been praised in its approach towards religious freedom.129 however, the veil issue has been controversial. canadian law offers protection in respect of freedom of religion or sincerely held beliefs, but there are practical limitations placed on this.130 it has been held by the canadian supreme court in respect of employment law that a rule “may be discriminatory if it affects one group differently from others to whom it applies.”131 this principle, which extends to schools and school children,132 will, prima facie, apply to a ban on the headscarf. the law seeks to strike a balance in canada133 between two sets of conflicting rights; the right to freedom of religion must be “reasonably accommodated”134 but only to a point of “undue hardship” with regard to regards the accommodating party.135 what involves undue hardship amounts to a non-exhaustive list of factors,136 including what appears to be an often cited point in canada; grounds of health and safety. it seems difficult to envisage a position where wearing a headscarf can amount to “undue hardship” given that it ultimately involves merely toleration, rather than, as perrie bosset points out “providing material facilities for use in worship”137 as other religious practice might. nevertheless there have been prohibitions made on wearing the headscarf in canada.138 irene waseem, a pupil at a private school in quebec,139 was suspended from her school in 2004 because she refused to remove her hijab. the 128 see centre for research and information on canada document: ‘canadians reject ban on religious symbols or clothes in schools, majority sees racial or religious background of party leaders as irrelevant’ available at www.cric.ca. 129 us department of state international religious freedom report 2005: canada. available at www.state.gov/g/drl/rls/irf/2005/51630.htm. 130 for example where there is a bona fide occupational requirement., see canadian national railway co v canada (human rights comm) and bhinder (1985), 7 chrr d/3093 (scc). 131 ontario human rights commission and o’malley v simpsons-sears (1985) 2 scr 536 551. 132 cdpq v cs st jean-sur richelieu (1991) rjq 3003 3038. 133 ontario human rights commission and o’malley v simpsons-sears (1985) 2 scr 536 551. 134 ibid. 135 ibid. 136 bosset. p, ‘reflections on the scope and limits of the duty of reasonable accomodation in the field of religion’ document 2.120-4.20.2 commission des droits de la personne, 2005. 137 ibid. 138 for discussion see; www.themodernreligion.com/women/hijab_canada2.htm. 139 human rights complaint in hijab case dropped, cbc news 17 november 2004, available at www.cbc.ca/canada/story/2004/11/16/hijab041116.htm. http://www.cric.ca http://www.state.gov/g/drl/rls/irf/2005/51630.htm http://www.themodernreligion.com/women/hijab_canada2.htm http://www.cbc.ca/canada/story/2004/11/16/hijab041116.htm the denning law journal 199 suspension was made despite specific comments made by the quebec human rights commission in respect of the veil in 1995.140 the commission did not however immediately come to waseem’s defence and was criticised for not having done so.141 certainly other human rights groups were quicker to act.142 the commission eventually made a statement on waseem’s case 2 years later stating that schools must show “necessary and objectively” that a restriction is required.143 although schools may apply this as they see fit. waseem’s case was later resolved out of court.144 one possible argument open to an institution in canada wishing to show that a ban is “necessarily and objectively” required would be to rely on health and safety grounds, which as stated above is increasingly relied on in attempting to justify a ban on religious attire. the issue has been raised in respect of physical education classes where there are concerns that long robes could get caught in equipment.145 also cited as reasons for a ban are, similar to the issues raised in the uk, criticisms of the niqab which conflicts with the health and safety others as it inhibits learning and further can be used as a disguise to cheat in exams.146 one wonders how many people cheat on their exams in this way, and whether the problem can possibly be so widespread so as to justify a ban. health and safety concerns surrounding the hijab must have featured on the mind of ikea which employs muslim girls who wear the hijab. however ikea, rather than making a prohibition, tailored their own brand of hijab which comes with clips to avoid health and safety hazards.147 it does not seem unreasonable to ask why schools cannot also take a similar approach. health and safety and religious freedom were issues raised in the canadian case multani.148 here the supreme court found that the banning of a kirpan149 was not proportionate to the objective of maintaining health and safety in a school because the degree of safety sought was excessive and there was little evidence of the kirpan being used in violent incidents inside of 140 ‘quebec private schools must allow hijabs, skullcaps: human rights commission’ 16 june 2005 available at www.cbc.ca. 141 www.muslimcouncil.org/en/2004/11/the-qubec-human-rights-commis.htm. 142 shariff s, balancing competing rights: a stakeholder model for democratic schools, canadian journal of education 29, 2 (2006) 476-496. 143 ibid. 144 human rights complaint in hijab case dropped, cbc news 17 november 2004, available at www.cbc.ca/canada/story/2004/11/16/hijab041116.htm. 145 shariff s, balancing competing rights: a stakeholder model for democratic schools, canadian journal of education 29, 2 (2006) 476-496. 146 ibid. 147 www.hijabshop.com. 148 maltani v commission scolaire marguerite bourgeoys (2006) 1 cr 256 2006. 149 ceremonial knife worn by people of the sikh religion. http://www.cbc.ca http://www.muslimcouncil.org/en/2004/11/the-qubec-human-rights-commis.htm http://www.cbc.ca/canada/story/2004/11/16/hijab041116.htm http://www.hijabshop.com the prohibition of the muslim headscarf: contrasting international approaches 200 schools.150 it would seem therefore that whilst health and safety grounds are often cited as reasons for restricting religious freedom, there is a high threshold which must be met as regards the test of proportionality. france france, like the us has a strict separation of church and state, but in terms of law and policy towards the muslim veil their positions could scarcely be more different. where in the us there is a general pluralistic approach towards the headscarf, assimilation and secularity are considered extremely important in france.151 french national identity is thought to prevail over individual religious and cultural diversity, a concept in france which has widespread public support.152 it is perhaps for historic reasons that this is so. france, which has a bloody history of religious violence, was “created by conflict, by war and the suppression of alternative identities.”153 the french revolution of 1789 was a sequence of events which created large divisions between the catholic church and state.154 in 1905 a law officially provided for the separation of church and state.155 the french principle of laicite is firmly placed in french history, law and national psyche. poulter provides an interesting example of what this means in practice: “it can be interpreted as a more active secularism, in terms of which the nation is promoted as a fundamentally political society fiercely independent of any religious authority but one which the values of the state can be utilised through the concept of “l’ordre public” to justify interference where necessary with some religious organisations.”156 to that end, religion, religious insignia and the muslim veil are considered to have no place in french state schools. the creil controversy 150 ibid. 151 s poulter, muslim headscarves in school: contrasting legal approaches in england and france, oxford j legal studies 1997 17. 152 statement made by jacques chirac, 28/01/04, available at: www.info-franceusa.org/news/statmnts/2004/chirac_secularism012804.asp. 153 judge h ‘the muslim headscarf and french schools’, american journal of education 111, november 2004, p 2. 154 napoleon, who became a virtual dictator of france in 1799, made a deal with the papacy (concordat 1801), which restored certain rights of the catholic church in france, but it was a compromise. see schama, simon. citizens: a chronicle of the french revolution. new york: knopf: 1989. 155 1905 law: “the republic assures the right of conscience and guaranties the freedom of cult” 156 s poulter, muslim headscarves in school: contrasting legal approaches in england and france, oxford j legal studies 1997 17 page 50. http://www.info-france-usa.org/news/statmnts/2004/chirac_secularism012804.asp http://www.info-france-usa.org/news/statmnts/2004/chirac_secularism012804.asp the denning law journal 201 the headscarf first caused controversy in france in the late 1980s when muslim girls at a school in creil were suspended after refusing to remove their hijabs. the matter was referred to the conseil d’etat157 which held that school children would not be allowed to wear religious insignia which: “by ostentatious or campaigning nature, consisted as act of pressure, provocation, proselytism or propaganda, or which were aimed at the dignity or freedom of other pupils or members of the school community, or compromised their health or safety or disturbed good order and the peaceful running of the school.”158 this approach was later reaffirmed,159 and followed by a ministerial circular.160 the debate has thus been raging in france for sometime, but the decision to create a legislative ban on religious insignia is however recent. the 2004 legislative ban in 2004, the french parliament passed a law banning religious insignia in french state schools.161 the law followed an investigative committee report, the stasi report,162 ordered by jacques chirac in 2003.163 the stasi report provides an interesting insight into the french interest n making such a ban. the report set out that the overriding interest in creating a ban was a desire to protect the principle of laicite. the report was robust and uncompromising to that end: “ostentatious displays of religion violate the secular rules of the french school system.”164 jacques chirac makes this aim clear: “what is at stake is supporting the principle of secularism, which is one 157 french council of state. 158 s poulter, muslim headscarves in school: contrasting legal approaches in england and france, oxford j legal studies 1997 17. 159 kherouaa [1993] public law 198. 160 the circular stated that whilst “discreet insignia was permitted…..ostentatious insignia, which constitute in themselves elements of proselytism or differentiation, are prohibited” for discussion see; s poulter, muslim headscarves in school: contrasting legal approaches in england and france, oxford j legal studies 1997 17. 161 law 2004-228 of march 15, 2004. 162 la commission stasi. 163 president of france statement made by jacques chirac, 28/01/04, available at: www.info-france-usa.org/news/statmnts/2004/chirac_secularism012804.asp. 164 rapport au president de la republique 2003,available at ; http://lesrapports.ladocumentationfrancaise.fr/brp/034000725/0000.pdf. http://www.info-france-usa.org/news/statmnts/2004/chirac_secularism012804.asp http://lesrapports.ladocumentationfrancaise.fr/brp/034000725/0000.pdf the prohibition of the muslim headscarf: contrasting international approaches 202 of the pillars of our republic.”165 the law itself applies to all public schools with the exception of universities. it does not apply to state funded private schools, most of which are catholic.166 whilst the law bans all “conspicuous” religious insignia,167 much of the french debate has focused on the islamic veil. the stasi report made various points on the veil, many of which are not peculiar to france. for example it was argued that the veil constitutes a form of pressure on others who do not wish to wear it, and can act contrary to the interests of gender equality. a view strongly argued by french feminist groups.168 the muslim headscarf is often attacked as a form of oppression, or as symbolic of fundamentalism,169 but this is contextual and the headscarf is not always seen subservient. for example an italian women with a scarf in rome is chic, but a muslim women with a scarf is oppressed and a danger to civilisation.170 in placing particular emphasis on the “headscarf as a form of pressure” view the report stated that women wear it “because their parents, their older brothers, as well as religious groups, oblige them to do so.”171 however this is simply not always the case, nor is there evidence to suggest it is so in the majority of cases. women wear the veil for many different reasons; as a way of feeling less emancipated, or as freedom from pressure rather than having succumbed to it. this though is not always accepted. some argue that women do not wear the headscarf as a matter of choice, even if they think they do; they have in fact merely been sold the idea under a guise. the real position, it is argued, is that the headscarf “stands for mock emancipation and oppression of women in society”.172 this view sees the veil as a deep and culturally rooted form of pressure on women based on, or developed from, historical male dominance and oppression of women. the problem here is this view holds women to have no choice, to that end its implementation would prevent 165 statement made by jacques chirac, 28/01/04, available at: www.info-franceusa.org/news/statmnts/2004/chirac_secularism012804.asp. 166 judge h ‘the muslim headscarf and french schools’, american journal of education 111, november 2004, p 14. 167 law 2004-228 of march 15, 2004: ‘religious insignia which exhibits conspicuously a religious affiliation’. 168 ni putes ni soumises. 169 shadid w and van koningsveld, muslim dress in europe: debates on the headscarf, journal of islamic studies, 2005 16:1 pp 35-61. 170 example taken from s poulter, muslim headscarves in school: contrasting legal approaches in england and france, oxford j legal studies 1997 17 p 62. 171 union des organisations islamiques de france, lettre ouverte a monsieur bernard stasi, president de la commission sur la laicite, paris 5 november 2003. 172 a feiter, ‘een feministe met een hoofddoek, kan dat? vier allochtone vrouwen in discussie’, opzij, may 2001, 22-7. http://www.ingentaconnect.com/content/external-references?article=0955-2340(2005)16:1l.35[aid=6823735] http://www.info-france-usa.org/news/statmnts/2004/chirac_secularism012804.asp http://www.info-france-usa.org/news/statmnts/2004/chirac_secularism012804.asp the denning law journal 203 them from having any choice; the decision would already been made for on their behalf. some women say that they wear the veil as a way of avoiding unwanted male sexual advances, or even attacks. however, even assuming the veil serves this purpose, this may be seen as a form of oppression in itself. an australian cleric recently made headlines when he implied women deserved sexual advances or assaults where they do not dress modestly.173 to subscribe to this school of thought bears two propositions; firstly women are in some way responsible for male aggression or violence, and secondly men are incapable of sexual self restraint. both of which are unacceptable and as ayana hirshi ali puts it “insulting”.174 it is likely that in certain individual situation there is pressure to wear the veil and this may take different forms. but it is not as absolute or common place as the report suggests.175 banning the veil on this basis, aside from restricting women’s free choice, is akin to using a sledgehammer to crack a nut. with regard to the reports suggestion that the veil asserts pressure on school girls who do not wish to wear it, this argument is less convincing when looked at statistically. raja elhabiti176 points out that less than 1% of french school students wear the veil, and asks “how this small number can exert any kind of pressure on girls who do not wish to wear the headscarf.”177 there would seem to be a need to strike a balance; those who do not wish, but are pressurised to wear the veil must be protected, whilst consideration should be given to human rights and religious freedom. the french have clearly failed to strike this balance. as with the uk, immigration and integration have featured highly in the french debate. france has seen large immigration, mainly from north african countries.178 something many in france feel uncomfortable with.179 173 tran m, ‘australian muslim leader compares uncovered women to exposed meat’ guardian unlimited 26 october 2006. 174 hirsi ali a, ‘muslim women are the key to change’ the sunday times 29 october 2006. 175 rapport au president de la republique 2003 ,available at ; http://lesrapports.ladocumentationfrancaise.fr/brp/034000725/0000.pdf. 176 raja elhabiti director of research at karama: muslim women lawyers for human rights. 177 the veil controvercy: international perspectives on religion in public life, the brookings center on the united states and europe and the pew forum on religion and public life, 19 april 2004. 178 joyce mushaben more than just a bad-hair day: the head-scarf debate as a challenge to euro-national identities, available at; www.europanet.org/ conference2004/ papers/i7_mushaben.pdf. http://lesrapports.ladocumentationfrancaise.fr/brp/034000725/0000.pdf http://www.europanet.org/conference2004/papers/i7_mushaben.pdf http://www.europanet.org/conference2004/papers/i7_mushaben.pdf the prohibition of the muslim headscarf: contrasting international approaches 204 france has an estimated population of 5 million muslims and “islam is now in numerical terms the second religion.”180 le pen places muslim immigration at the forefront of his political campaigns,181 and has gained worryingly widespread support. france has a “heavy concentration of muslims in socially disadvantaged areas,”182 which has given rise to civil unrest,183 which has received tough and at times hostile political response.184 some have argued that immigration had created a political interest for banning the veil: the need to allay public opinion, thus preventing moderates from turning to the political right.185 the 2004 law was in fact, it is argued, aimed at islam.186 there is little evidence to support this, but were the law aimed at muslims it would almost certainly breach standards of international law187 as well as european convention law.188 however the law is framed in such a way likely to avoid this issue.189 in any case, even where it can be argued that the french law was genuinely motivated as a defence of secularity and is non-discriminatory, it must nevertheless meet the standards set out in article 9 (2) echr, which arguably it may not. 179 walker d ‘ballot experiments have mixed effect’ the guardian 3 may 2002 available at http://society.guardian.co.uk/localgovelections/story/0,,709237,00.html. 180 judge h ‘the muslim headscarf and french schools’, american journal of education 111, november 2004. 181 http://news.bbc.co.uk/1/hi/world/europe/1943193.stm. 182 judge h ‘the muslim headscarf and french schools’, american journal of education 111, november 2004. 183 ‘paris riot: pm cancels canada trip’ cnn 2 november 2005 available at http://edition.cnn.com/2005/world/europe/11/02/france.riots/. 184 nicholas sarkosy refered to rioters as ‘scum’ see; http://edition.cnn.com/2005/world/europe/11/02/france.riots/. 185 ‘report outrages france's muslims’ al jazeera 13 december 2003, available at http://english.aljazeera.net/nr/exeres/e7bc0591-15bb-4340-937e7f3adddd487f.htm. 186 ibid. 187 international covenant on civil and political rights (iccpr) article 2 of the obliges all state parties to “respect the rights set forth in these documents without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property or other status.” 188 for example article 14 prohibition of discrimination. the enjoyment of the rights and freedoms set forth in this convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 189 for example the french law is framed so as to prohibit all insignia which ‘ exhibits conspicuously a religious affiliation.’ http://society.guardian.co.uk/localgovelections/story/0,,709237,00.html http://news.bbc.co.uk/1/hi/world/europe/1943193.stm http://edition.cnn.com/2005/world/europe/11/02/france.riots/ http://edition.cnn.com/2005/world/europe/11/02/france.riots/ http://english.aljazeera.net/nr/exeres/e7bc0591-15bb-4340-937e-7f3adddd487f.htm the denning law journal 205 germany the german constitution would appear to protect religious liberty in germany: “freedom of belief, of conscience and the freedom of faith and world outlook are inviolable”.190 this also extends to the public office: “all german citizens have access to every public office according to their own aptitudes, qualifications and professional abilities. the exercise of civil and civic rights, the admission to public office, as well as the rights acquired in the public service, apply irrespective of religious confession. no disadvantage may arise from affiliation or non-affiliation to a particular confession or world view”.191 this is not however as higher level of protection as the text might lead one to conclude. like france there has been controversy surrounding the wearing of the headscarf in germany. however, unlike france, the germans appear to be less concerned with the display of religious insignia by children; rather the issue has arisen in respect of teachers and employment. a 2003 case192 involved a german teacher who was prohibited from wearing the hijab193 (is definition needed so late on when frequently used before without footnote?) whilst at work. the school194 was concerned that the headscarf symbolised a desire for cultural disintegration that was irreconcilable with the states obligation to neutrality.195 there were also concerns that the headscarf could have a proselytising effect on children who were at an impressionable age.196 to that end similar concerns had been raised in respect of crucifixes.197 the federal constitutional court approached the issue from a religious freedom standpoint, holding that the teacher could not be barred from public school employment, since there was no state law banning religious insignia per se.198 190 german constitution article 4. 191 article 33 german constitution. 192 the case of fereshta ludin – federal labour court 2 azr 427/01, available at www.bundesarbeitsgericht.de. 193 islamic scarf (head covering) see http://womenshistory.about.com/od/islamicdress./ 194 stuttgart school. 195 fereshta ludin federal labour court 2 azr 427/01, available at www.bundesarbeitsgericht.de. 196 for a full discussion of this case see; joyce mushaben more than just a bad-hair day: the head-scarf debate as a challenge to euro-national identities, available at; www.europanet.org/ conference2004/ papers/i7_mushaben.pdf. 197 leicht j. germany: the supreme court headscarf ruling and the myth of religious neutrality. 9 october 2003. www.wsws.org. 198 joyce mushaben more than just a bad-hair day: the head-scarf debate as a challenge to euro-national identities, available at; www.europanet.org/ conference2004/ papers/i7_mushaben.pdf. http://womenshistory.about.com/od/islamicdress./ http://www.wsws.org http://www.bundesarbeitsgericht.de http://www.bundesarbeitsgericht.de http://www.europanet.org/conference2004/papers/i7_mushaben.pdf http://www.europanet.org/conference2004/papers/i7_mushaben.pdf http://www.europanet.org/conference2004/papers/i7_mushaben.pdf the prohibition of the muslim headscarf: contrasting international approaches 206 the ban was found to have no basis in law. the court therefore found in favour of the teacher, but left room for manoeuvre: there could be grounds in which dismissal on grounds of headscarves or denial of employment might be justified.199 german states would not be prevented from making future bans, if they supplied a legal basis for doing so.200 several german state governments have moved to introduce laws which will enable a ban to be made. these include bavaria, hesse, lower saxony and berlin.201 the german position is however, considerably different from france; the existing german cases have related exclusively to employment, whilst the french have favoured an outright ban on religious insignia in schools, at a state level.202 turkey turkey has for many years banned the headscarf in universities, although this rule has not always been strictly applied. like france, turkey has argued that a ban is necessary to protect the secular nature of its state. however in contrast to other european states, turkey has a predominantly muslim population and an islamic history.203 nevertheless, also found in turkey’s history is a staunch commitment to a secular society which is fiercely defended by turkey’s ruling elite.204 in turkey, laws relating to a ban on religious clothing in public institutions date back to the foundation of the republic, and the issue has arisen many times since. turkey’s conflict with the headscarf was perhaps at its height in the late 1980s and early 1990s. in 1988 a law205 allowing that the veil be worn in universities was struck down by the constitutional court as being an affront to the principle of secularism. in 1991 the court made a similar ruling206 and in 1997 the military demanded that the prohibition of the 199 dagmar schiek & carl von ossietzky, european developments – just a piece of cloth? german courts and employees with headscarves, industrial law journal 2004. 200 frhr von a german headscarf debate. brigham young university law review. 2004. 201 leicht j germany: the supreme court headscarf ruling and the myth of religious neutrality. 9 october 2003. www.wsws.org. 202 at the time of writing two german states have proposed a ban: badenwuerttemberg and bavaria. 203 ottoman empire. 204 mustafa kemal ataturk delivered secularity to turkey. 205 law on higher education passed by the motherland government. 206 constitutional court judgement no 1991/8, july 1991. http://www.wsws.org the denning law journal 207 veil be strictly adhered to, without exception.207 since that time “the headscarf ban has been widely enforced both inside and outside universities.”208 women in the turkish parliament are actively discouraged from wearing the veil. those who do are met with immense hostility.209 indeed one female mp lost her citizenship after refusing to remove her hijab.210 although in a recent survey 64 per cent of turks said they would support female mp’s right to wear the headscarf, so there is fierce resistance put up in support of secularity when it is perceived as being under threat.211 further, critics of the headscarf ban have been met in turkey with considerable distain and violence: human rights lawyers have been ill treated by the police, and academics that refuse to enforce a ban, have been dismissed.212 to that end turkey, like france, is extremely defensive of secularity, but in contrast turkey faces far more powerful opposition to it. in turkey islamic religious groups oppose the secular state, preferring an islamic one in its place. serious attempts have been made at destabilising the turkish state so that a fundamentalist agenda can prevail.213 “much of the resistance to the headscarf is inspired by a fear of what might happen if the tables were turned and an outright islamic regime was making the rules.”214 advocates of the headscarf ban have been targeted. one mp was killed in a 207 memorandum to the turkish government on human rights watches concerns with regard to academic freedom in higher education, and access to higher education for women who wear the headscarf. human rights watch briefing paper 29 june 2004, available at www.hrw.org. 208 ibid. 209 rainsford s ‘headscarf issue challenges turkey’ bbc 8 november 2006. 210 kavakci m ‘headscarf hearsay’ may/june 2004 available at www.foreign policy.com. 211 rainsford s ‘headscarf issue challenges turkey’ bbc 8 november 2006. 212 memorandum to the turkish government on human rights watches concerns with regard to academic freedom in higher education, and access to higher education for women who wear the headscarf. human rights watch briefing paper 29 june 2004, available at www.hrw.org. 213 refah partisi and others v turkey, nos 41340/98, 41342/98, 41343/98 and 41344/98, echr 2003. 214 memorandum to the turkish government on human rights watches concerns with regard to academic freedom in higher education, and access to higher education for women who wear the headscarf. human rights watch briefing paper 29 june 2004, available at www.hrw.org. http://www.hrw.org http://www.foreignpolicy.com http://www.foreignpolicy.com http://www.hrw.org http://www.hrw.org the prohibition of the muslim headscarf: contrasting international approaches 208 targeted explosion,215 a judge shot,216 and a columnist was killed by a car bomb.217 the turkish government relied on this position when arguing at strasbourg that a ban on the headscarf should be upheld, and it was.218 this case is discussed below. france has not had its law banning the headscarf challenged at strasbourg, but it could not argue that its state is under threat in the same way as turkey had argued. whilst there are undoubtedly elements of religious fundamentalism of all kinds in france, for example there have been catholic movements against the state in years past, it cannot be taken as serious proposition that the french state and system of government is at risk of being overthrown. critics of the turkish headscarf ban have however argued that, even if the state is under threat from fundamentalist islam, the ban on the veil is overly restrictive and disproportionate to that threat.219 further if the state is under threat, it is from fundamentalism not a piece of cloth. whatever the arguments which can be advanced that the headscarf is symbolic of fundamentalism, it is not always so, and religious fanatics will not disappear because the headscarf is prohibited. the greater impact will be on liberty. other european countries the veil row in holland dates back to at least 1985 when a local authority banned muslim girls from wearing the hijab at the municipal public primary schools.220 more recently the dutch have focused on the veil again, this time it is the niqab and burka in the spotlight. in 2003 the commission for equal treatment sanctioned a ban on the niqab, citing similar reasons put forward by the school in west yorkshire; the niqab restricts communication between teachers and their pupils.221 also in 2003 the niqab came to the attention of the municipality of eindhoven which 215 bahriye ucok mp social democratic populist party. 216 smith h, ‘judge shot dead in turkish court over ban on headscarves’ the guardian 18 may 2006. 217 ugur mumcu cumhuriyet columnist. 218 leyla sahin v turkey (application no. 44774/98) 29 june 2004. 219 memorandum to the turkish government on human rights watches concerns with regard to academic freedom in higher education, and access to higher education for women who wear the headscarf. human rights watch briefing paper 29 june 2004, available at www.hrw.org. 220 alphen aan de rijn, see; shadid w and van koningsveld, muslim dress in europe: debates on the headscarf, journal of islamic studies, 2005 16:1 pp 35-61. 221shadid w and van koningsveld, muslim dress in europe: debates on the headscarf, journal of islamic studies, 2005 16:1 pp 35-61. http://www.ingentaconnect.com/content/external-references?article=0955-2340(2005)16:1l.35[aid=6823735] http://www.ingentaconnect.com/content/external-references?article=0955-2340(2005)16:1l.35[aid=6823735] http://www.hrw.org the denning law journal 209 decided, although no female official intended to wear it, a prohibition of the niqab was considered necessary.222 the most recent veil issue in holland regards the burka. rita verdonk, minister of immigration and integration leader of the christian democrat appeal party has stated that on forming a government, her party would ban the burka in all public places, including in the street. criticised as a political stunt, the move is said to be aimed at public security. the ban will apply also to ski masks and helmets, which presumably must be the cause of many problems in holland. public security has been an increasingly cited reason for banning the veil in recent times. for example italy has invoked old laws preventing the covering of ones face in public,223 which is now being applied to the veil.224 italy is also considering making news laws banning the veil.225 the italian prime minister226, in setting out why these laws are necessary makes a rather unconvincing argument, though perhaps an honest one, where he said this: “you can't cover your face, you must be seen.”227 presumably this applies to muslims and catholic nuns alike. reports of terrorists freely roaming iraq dressed in the burka,228 as well as the recent case of a terrorist suspect escaping the british police by dressing in a niqab,229 only go to add legitimacy to a ban made on the public security basis. however such instances are rare and, as john simpson has found, it can be rather difficult for a man to hide his large feet.230 in belgium women were asked to remove their headscarves for photographs for identification purposes. in 1998 there were seventy six cases going through he courts on the issue.231 the uk has recently addressed this point and the driving standards agency has ordered that headscarves must be removed prior to taking a driving test.232 the belgium’s took the view that 222 ibid. 223 intended to foil terrorism against wearing masks in public. 224 fraser c ‘italy government seeks veil ban’ 7 november 2006 bbc, available at; http://news.bbc.co.uk/go/pr/fr/-/1/hi/world/europe/6125302.stm. 225 ibid. 226 romano prodi. 227 fraser c ‘italy government seeks veil ban’ 7 november 2006 bbc, available at; http://news.bbc.co.uk/go/pr/fr/-/1/hi/world/europe/6125302.stm. 228 browne a and o’neill s ‘suspect in terror hunt used veil to evade arrest’ the times. 229 ibid. 230 simpson j ‘news from no man’s land’ macmillan 2002. 231 shadid w and van koningsveld, muslim dress in europe: debates on the headscarf, journal of islamic studies, 2005 16:1 pp35-61. 232 ‘new driving test rule forces muslim women to remove their veils’ 16 september 2006 www.thisislondon.co.uk. http://www.ingentaconnect.com/content/external-references?article=0955-2340(2005)16:1l.35[aid=6823735] http://news.bbc.co.uk/go/pr/fr/-/1/hi/world/europe/6125302.stm http://news.bbc.co.uk/go/pr/fr/-/1/hi/world/europe/6125302.stm http://www.thisislondon.co.uk the prohibition of the muslim headscarf: contrasting international approaches 210 women who wear the headscarf ought to be photographed with it on, as this is their public identity.233 is a ban compatible with the echr? for a ban on religious insignia in schools to be compatible with the echr234 it must satisfy the requirements of article 9:235 1) everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2) freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others. in order to make an assessment one must ask this; is preventing school children from wearing religious insignia an interference with article 9? if it is, is the prohibiting provision prescribed by law; pursuant with a legitimate aim and; necessary in a democratic society? interference not every act motivated or inspired by a religion or belief is protected.236 in order to be protected, the applicant must show that wearing the religious insignia in question, is actually manifesting a religious belief, rather than being motivated by one.237 however, the wearing of insignia has been held to be a manifestation of belief for the purposes of article 9 (1).238 233 shadid w and van koningsveld, muslim dress in europe: debates on the headscarf, journal of islamic studies, 2005 16:1 pp35-61. 234 european convention on human rights 1950. 235 for example articles 8, 10, 14, 2 and protocol no 1, see leyla sahin v turkey (application no. 44774/98) 29 june 2004. 236 arrowsmith v united kingdom no. 7050/75, rep. 1978 & kalac v turkey judgment of 1 july 1997. 237 arrowsmith v united kingdom no. 7050/75, rep. 1978 para 71. 238 karaduman v turkey no 16278/90 commission decision of 3 may 1993 & leyla sahin v turkey (application no 44774/98) 29 june 2004. http://www.ingentaconnect.com/content/external-references?article=0955-2340(2005)16:1l.35[aid=6823735] the denning law journal 211 prescribed by law whether a ban on religious insignia is prescribed by law will depend on the particular provision, in the particular country, which provides for the ban. the court will look at the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects.239 a published clear, written school uniform policy which is available to all who might be affected by it, has been held to meet this requirement by the court of appeal.240 the strasbourg court has held that circulars and regulatory provisions will also be sufficient.241 legitimate aim a number of legitimate aims are listed in article 9 (2); “in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.” in sahin v. turkey242 the turkish government argued that a law prohibiting students from wearing the islamic veil in university perused the aims of: maintaining order in universities, upholding the principle of secularism and protecting the rights and freedoms of others. as regards the “rights and freedoms of others” the turkish government was particularly concerned with freeing students who may be under pressure to wear the veil and upholding and promoting gender equality.243 the court held that these aims accorded with those listed in the second paragraph of article 9. further, the applicant conceded the importance of such aims, and accepted that they may be regarded as being compatible with article 9 (2).244 protecting the principles of secularism and neutrality, in relation to the prohibition of religious insignia in schools, has also been previously upheld as being legitimate aims for the purpose of article 9 in dahlab v switzerland.245 it is, therefore likely that where a state imposes a ban on religious insignia in schools, whilst following the above described aims, the strasbourg court will 239 leyla sahin v turkey (application no. 44774/98) 29 june 2004 and rotaru v romania (28341/95) [2000] echr 191 (4 may 2000). 240 r (on application of b) v headteacher and governors of denbigh high school 140, court of appeal (civil division) [2005] ewca civ 199, [2005] all er per lord brooke para 61. 241 leyla sahin v turkey (application no. 44774/98) 29 june 2004. 242 leyla sahin v turkey (application no. 44774/98) 29 june 2004. 243 ibid para 82. 244 ibid para 85. 245 dahlab v switzerland no 42393/98 echr 2001. the prohibition of the muslim headscarf: contrasting international approaches 212 find that the aims are legitimate for the purpose of article 9 (2). nevertheless, a ban on religious insignia must be deemed necessary in a democratic society. necessary in a democratic society in determining the issue of necessity, the strasbourg court will look to make a careful balance between the rights at stake, on the one hand, and the effects of the ban on the other. the court explained its role in dahlab, where it said “the court's task is to determine whether the measures taken at national level were justified in principle that is, whether the reasons adduced to justify them appear “relevant and sufficient” and are proportionate to the legitimate aim pursued... in order to rule on this latter point, the court must weigh the requirements of the protection of the rights and liberties of others against the conduct of which the applicant stood accused. in exercising the supervisory jurisdiction, the court must look at the impugned judicial decisions against the background of the case as a whole..."246 in dahlab, where a teacher brought an action against a school which had prohibited her from wearing the islamic veil whilst at work, the swiss government argued that the veil was incompatible with the aims perused; it constitutes a “powerful external symbol” which might have some kind of “proselytising effect, seeing that it appeared to be imposed on women by a precept laid down in the koran”.(no citation or ibid?) this, it was argued, was “hard to reconcile with the principle of gender equality”. the court upheld these arguments as being necessary to protect secularism and school neutrality. in sahin, the most recent strasbourg authority on religious insignia in schools, the turkish governments arguments were based on similar grounds; the protection of secularism and gender equality. in following dahlab, the court gave consideration to the “impugned judicial decisions against the background of the case as a whole”. here turkish history was relevant. turkey is a country with a history of religiously motivated political movements aimed at destabilising its democracy.247 the islamic veil, in the turkish context, is a symbol which attaches fundamentalist political significance. in this regard the veil exerts a form of pressure on university students and adversely affects the principle of gender equality. secularism, turkey submitted, is, inter alia, the guarantor of democratic values, upon which the turkish constitution is based. further, the notions of secularism and 246 dahlab v switzerland no. 42393/98 echr 2001, p11. 247 refah partisi & others v turkey, nos 41340/98, 41342/98, 41343/98 and 41344/98, echr 2003. the denning law journal 213 gender equality are consistent with the values underpinning the convention.248 turkey also argued that in addition to being necessary for the above described reasons, the prohibiting law was proportionate. the government did not seek to limit the freedom to wear religious insignia outside of university. further, muslim students are free to “perform the religious duties that are part of muslim observance.”249 (this seems strange given that the limitations are placed exactly in that regard). in addition, universities treated all forms of dress symbolising or manifesting a religion or faith on an equal footing. in accepting the submissions made by turkey, the court said this; "in a country like turkey, where the great majority of the population belong to a particular religion, measures taken in universities to prevent certain fundamentalist religious movements from exerting pressure on students who do not practise that religion or on those who belong to another religion may be justified under article 9(2) of the convention.".250 such a law banning insignia in schools is therefore “proportionate to the aims perused…and…necessary in a democratic society”,251 at least in convention terms. the strasbourg court will allow a member state a margin of appreciation. “a margin of appreciation is particularly appropriate when it comes to the regulation by the contracting states of the wearing of religious symbols in teaching institutions, since rules on the subject vary from one country to another depending on national traditions.”252 whilst this notion allows states considerable room for manoeuvre253, it does not exclude european supervision254 and in light of sahin, the context would appear to be of great importance. to summarise: preventing school children from wearing religious insignia in schools interferes with their rights provided by article 9 (1). however, doing so may be consistent with the echr if the ban is firstly a law or regulation which is clear, precise and accessible. secondly a legitimate aim must have been pursued and this has been held to include defending the principles of secularity, gender equality and the rights and freedoms of other students. lastly a ban must be considered to be necessary and this will only be the case if it strikes the correct balance between the rights and freedoms, on 248 leyla sahin v turkey (application no. 44774/98) 29 june 2004 para 106. 249 ibid para 111. 250 ibid para 101. 251 ibid para 114. 252 ibid para 102. 253 hatton and others v united kingdom (36022/97) [2001] echr 561 (2 october 2001). 254 ibid para 102. the prohibition of the muslim headscarf: contrasting international approaches 214 the one hand, and the proportionality of the measures on the other, but to that end states are afforded a wide margin of appreciation. international legal standards article 18 of the universal declaration on human rights provides “everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.” article 2 of the international covenant on civil and political rights (iccpr) obliges all state parties to “respect the rights set forth in these documents without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property or other status.” under article 18 (1) iccpr “everyone shall have the right to freedom of thought, conscience and religion. this right shall include freedom to have or to adapt a religion or belief of his choice, and freedom individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.” general comment number 22 of the united nations human rights committee states that this includes the wearing of “distinctive religious clothing or head coverings.”255 a ban on the muslim headscarf clearly violates this provision. article 18 (3) iccpr provides the rights in article 18 (1) above may be limited where “necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” the committee has stated that “restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner.”256 many headscarf bans are verging on this, particularly as often seems to be the case, a prohibition is aimed at islam. article 19 iccpr provides for freedom of expression which also protects the wearing of the headscarf. article 13 of the international covenant on economics, social and cultural rights establishes the right to higher education. this “shall be accessible to all.” under article 2 (2) religion is prohibited as a permissible ground for distinction. a ban on the headscarf in institutions of higher education will deny education to those who wear the headscarf, thus violating this right. under article 10 of the convention of all forms of discrimination against women “state parties shall take all appropriate measures to eliminate 255 general comment number 22 of the united nations human rights committee, adopted on 20 july 1993 doc ccpr/c/21/rev1/add 4. 256 ibid. the denning law journal 215 discrimination against women in order to ensure to them equal rights with men in the field of education and in particular to ensure, on a basis of equality of men and women.” a prohibition on the veil will always apply disproportionately to women, which, additionally to being discriminatory, consequently fails to provide for equality in the field of education. the text of the international legal provisions which apply to a ban of the headscarf therefore sets out a high threshold which must be met by a state party perpetrating a prohibition. a ban must be made by the least restrictive means possible, be non-discriminatory in its nature and it must be proportionate with a legitimate aim. for many of the bans discussed above, it is doubtful whether these standards have been met. conclusions the wearing of the muslim headscarf transcends a wide range of issues producing much debate in western countries, often provoking broad based and emotional responses. this in turn leads to different consequences in both policy and law, which as with the debates themselves differs from one state to another. the issue is considered so important that in some countries only a legislative ban will suffice. in others, courts will rule against freedom of religion in upholding bans which are made with little consideration for religion and tolerance alike. international law presents a clear defence of the right of an individual to wear insignia attesting to their religious beliefs, in all social contexts. this includes the right to wear islamic head coverings in the public sphere. the european convention on human rights affords considerable protection in respect of the same. domestic legal provisions in many european countries, for example france, conflict with these rights. even in countries where direct legislative bans have not been made, institutions, such as schools, continue to deny religious freedom to those who wish to wear islamic head coverings. courts have primarily upheld bans on the headscarf, interpreting the law restrictively.257 however, with so many prohibitions on the wearing of the headscarf in europe, a trend which looks set to continue, the limits of article 9 echr are likely to be tested further. the position taken by the united states has differed considerably with that taken in europe and of all the countries examined in this article the us has been the least compromising in its defence of the rights of its children to wear religious dress in school. in the words of mr justice fortus: “it can 257 leyla sahin v turkey application 44774/98 echr; 258 r (on the application of begum) v headteacher and governors of denbigh high school hl [2006] ukhl 15, [2006] all er (d) 320 (mar) (approved judgement). the prohibition of the muslim headscarf: contrasting international approaches 216 hardly be argued that either students or teachers shed their constitutional rights to freedom of expression at the school gates.”258 the domestic courts in europe, additionally the strasbourg court in particular, may wish to take note of this and have it in mind when, as seems inevitable, the next headscarf case arrives at a court door. the issue of proportionality has and will continue to be central to debates and court cases involving the prohibition of the headscarf. any ban will be considered not only in light of the right to religious expression in dress, but also the rights and freedoms of others.259 this is not a straight forward or easy issue to decide. it was argued in canada that consideration of religious rights must be counter-balanced by considerations of “undue hardship” with regard to the accommodating party.260 canada often appears to draw the line at health & safety hazards.261 in europe it has been considered that an individual’s face must be fully visible for the purposes of official photographs.262 however all too often the arguments advanced in favour of restricting the wearing of the headscarf are weak and at times seem prejudicial. the most specific issue which the courts will likely be asked to decide is whether a ban on a wearing the full faced veil such as the niqab in schools or courts can be justified. it would seem that a careful approach must be taken. it is of course quite proper that the rights and freedoms of others are important and due weight must be given to that end. in a multicultural society limitations will have to be made. if a teacher cannot be understood by her pupils then they cannot learn. if a lawyer is unable to communicate a client’s case to the court then justice cannot prevail. but it is how and to what extent restrictions are made which seems to be where many european countries get it wrong. human rights provisions exist for a purpose. it is simply not right that a state can prohibit religious freedom and manifestation of religious belief on the most flimsy of reasons. it is not right to deny school children their legal rights because others feel they do not “fit in”. it will not do to make bans because some in society merely do not like the headscarf. those who feel women are oppressed by the headscarf may wish to argue that in open debate, but to make legislative bans for such 259tinker v des moines school district, 393 us 503 (1969). 260 article 9 (2) echr; article 18 (3) iccpr. 261 ontario human rights commission and o’malley v simpsons-sears (1985) 2 scr 536 551. 262 shariff s, balancing competing rights: a stakeholder model for democratic schools, canadian journal of education 29, 2 (2006) 476-496. 263 for example in the uk see: new driving test rule forces muslim women to remove their veils’ 16 september 2006 www.thisislondon.co.uk. http://www.thisislondon.co.uk the denning law journal 217 reasons is oppressive in itself and moreover can hardly be said to satisfy the requirements set out in article 9 (2). the law therefore requires high standards of necessity so that a ban is strictly required for compelling reasons,263 but many european countries appear to form policy enacting bans on the headscarf for reasons which merely reflect the political concerns of their people. such concerns often do not amount to reasons sufficiently compelling to justify prohibition as required by the standards of limitation provisions, such as article 9 (2) of the echr. states of course know this, and know that if a ban is to be lawful, limitation provisions must be met. inevitably they will attempt to reach them to legally justify a ban. this transpires where arguments for the prohibition of the headscarf are made on grounds such as public security or the defence of secularism, but the headscarf is then attacked on other fronts not stated as the bans primary aim. for example, why if france was merely concerned with maintaining religious neutrality in state schools, did so much of the focus concentrate on the concern or the perception that the headscarf was oppressive to women? a noble cause the eradication of the oppression of women undoubtedly is, but to presume that the headscarf is inexorably an indicator of oppression is overly presumptive and further it is not the same argument as religious neutrality. though the position relating to bans on the headscarf in most of the countries discussed remains in a developing state and often lacks clarity, it is clear that international law requires that high standards must be met. presently the words found in the text of so many limitation provisions in human rights treaties such as “necessary” and “proportionate” do not seem to be understood. 264 echr article 9 (2); iccpr article 18 (3). unincorporated associations: property holding, charitable purposes and dissolution denning law journal 2014 vol 26 pp 274-280 case commentary bribes and secret commissions fhr european ventures llp v cedar capital partners llc [2014] uksc 45 robert pearce∗ 1. introduction if an agent receives a bribe or a secret commission, does his principal have a proprietary claim? that is a question which has divided both the judiciary and academic opinion. the supreme court has now in fhr european ventures llp v cedar capital partners llc1 given a clear and unequivocal decision. the case holds that the principal does have a proprietary remedy: an agent holds the proceeds of any bribe or secret commission on constructive trust for his principal. 2. the facts fhr european ventures llp (“fhr”) represented a number of investors, including ultimately the bank of scotland, prince alwaleed bin talal bin abdulaziz al saud, a well-established investor in luxury hotels around the world, and fairmont hotels and resorts inc, a hotel investment and operating company.2 fhr acquired the shares in the company which owned the monte carlo grand hotel. cedar capital partners llc (“cedar”), a company established to provide hotel industry consultancy services, acted as its agent in the purchase, and was paid a commission. cedar had also entered into an exclusive brokerage agreement with the sellers to procure the sale of the hotel, in return for which cedar would receive €10m. cedar failed to disclose to fhr the €10m commission which was duly paid on the sale. fhr sought a proprietary remedy. ∗ professor robert pearce, bcl, ma, hon lld, frsa, professor in law, the university of buckingham. 1 [2014] uksc 45. the case is referred to in the text as the monte carlo grand hotel case. 2 the companies forming part of the investment group were also joined as claimants, but for convenience fhr is treated in this commentary as if it were the only claimant. 274 the denning law journal 3. the decision by the time of the hearing by the supreme court, a number of matters were not in dispute. it was not in doubt that a fiduciary may not retain the benefit of any unauthorised profit made in breach of fiduciary duty; it was not in doubt that cedar, as an agent, owed fiduciary duties to both the seller and to fhr; it was not in doubt that as agent for both seller and buyer, there was a conflict of interest3; and finally, it was not in doubt that “an agent may not put himself in a position or enter into a transaction in which his personal interest, or his duty to another principal may conflict with his duty to his principal, unless his principal, with full knowledge of all the material circumstances and of the nature and extent of the agent's interest, consents”.4 one of the main issues at first instance was whether cedar had made sufficient disclosure to fhr of its arrangement with the sellers to allow it to retain the €10m commission. simon j held that cedar had failed to discharge the burden of proving that it had sufficiently disclosed the arrangement, and as a result it did not have the informed consent of fhr to retain the commission.5 the finding of fact that there had been insufficient disclosure was not appealed. the key issue on appeal became the appropriate remedy. the judge at first instance felt constrained by the decision of the court of appeal in sinclair investments (uk) ltd v versailles trade finance ltd6 to hold that the claimants were entitled only to a personal remedy of an account in equity. by the time of the appeal to the court of appeal the issue became simply whether the claimants were entitled to a proprietary remedy. the claimants sought a proprietary remedy because they believed that it would improve their chances of recovery: a primary advantage of a proprietary right is that it permits the asset claimed to be followed into the hands of third parties or traced into new assets.7 the court of appeal similarly considered that it was bound to follow the decision in sinclair v versailles. this decision held that the ordinary remedy for breach of fiduciary duty was the personal remedy of compensation based on an account in equity. a claimant could not succeed in claiming a 3 an argument to the contrary was summarily and correctly dismissed by the trial judge: fhr european ventures llp v mankarious [2011] ewhc 2308 at [102]. 4 fhr european ventures llp v mankarious [2011] ewhc 2308 at [75] per simon j at first instance. 5 fhr european ventures llp v mankarious [2011] ewhc 2308 at [107]. 6 [2011] ewca civ 347 [2012] ch 453 see the commentary by pearce and shearman (2012) 24 denning law journal 191-205. 7 this was one of the main reasons why a proprietary claim was made in attorney general for hong kong v reid [1994] 1 ac 324. 275 case commentary proprietary interest in assets acquired in breach of fiduciary duty 'unless the asset or money is or has been beneficially the property of the beneficiary or the trustee acquired the asset or money by taking advantage of an opportunity or right which was properly that of the beneficiary'.8 the trial judge considered that the commission received by cedar in the monte carlo grand hotel case could not be characterised as taking advantage of an opportunity that was properly that of fhr. the court of appeal disagreed and held that by taking a commission from the seller, cedar had diverted an opportunity, properly that of the claimants, to purchase at the lowest possible price.9 in doing this, it has been said that “the court made the facts fit the law, rather than applying the law to the facts”.10 the supreme court upheld the outcome, but for different reasons. lord neuberger, delivering the judgment of the court, took the opposite position from that which he had adopted in sinclair v versailles. the supreme court held that the general rule was that any benefit acquired by an agent as a result of his agency and in breach of his fiduciary duty is held on trust for the principal.11 this would give the principal the right to choose either a proprietary claim against the asset or its proceeds, or the remedy of account in equity. the supreme court therefore reintroduced the rule applied in attorney general for hong kong v reid12 where the privy council had held that a corrupt official who took bribes to tamper with the administration of criminal justice held those bribes on trust for his employer. lord neuberger in the monte carlo grand hotel case said that “it is not possible to identify any plainly right or plainly wrong answer to the issue of the extent of the rule [ie, when a principal will have a proprietary interest in assets acquired in breach of fiduciary duty], as a matter of pure legal authority.”13 the rule adopted by the supreme court was supported by a number of policy considerations. it had the merit of simplicity, as opposed to the contrary view, which was more likely to result in uncertainty.14 it meant that there were particularly stringent rules relating to bribes and secret commissions, which undermined trust in the business world.15 it also made it possible to trace or follow into other assets or 8 sinclair v versailles [2011] ewca civ 347at [88] (lord neuberger) applied in cadogan petroleum plc v. tolley [2011] ewhc 2286 (ch) at [23] (newey j) 9 [2013] ewca civ 17, at [24]. 10 hedlund, ‘secret commissions and constructive trusts: yet again!’ (2013) jbl 747, 755. 11 [2014] uksc 45 [35]. 12 [1994] 1 ac 324. 13 [2014] uksc 45 [32]. 14 [2014] uksc 45 [35]. 15 [2014] uksc 45 [42]. 276 the denning law journal other recipients.16 (although lord neuberger spoke of following into the hands of knowing recipients, the right to follow applies more generally subject to the defence of bona fide purchase without knowledge.) it was acknowledged that unsecured creditors might be affected, but they lost only the right to claim assets which the agent should never have received, and “at any rate in many cases, the bribe or commission will very often have reduced the benefit from the relevant transaction which the principal will have obtained, and therefore can fairly be said to be his property.”17 the arguments for and against imposing a constructive trust on all unauthorised benefits could both draw upon supporting caselaw. however, the majority of the earlier cases supported the general rule adopted by the supreme court. the contrary view could be traced to three decisions, tyrrell v bank of london18, metropolitan bank v heiron19 and lister & co v stubbs20, all of which could be criticised.21 those cases and any other cases applying them should therefore be treated as overruled. 4. commentary the question of whether bribes and secret commissions are held by a fiduciary in breach of fiduciary duty on trust for his principal has been a matter of strongly held opposing views. the supreme court quoted the comment of sir terence etherton about “this relentless and seemingly endless debate” in his article “the legitimacy of proprietary relief”,22 and to the description by pill lj in the court of appeal of the debate as revealing “passions of a force uncommon in the legal world.”23 much of that debate should be stilled by the very clear, unequivocal and emphatic decision of the supreme court. in addition, some of the wind is taken from the sails of those24 who advocated a narrower approach to imposing a proprietary constructive trust because lord neuberger gave the leading judgment in sinclair v versailles supporting that view and also the judgment of the supreme court in the monte carlo grand hotel case overruling his own earlier decision. this does not mean that there will be no continuing debate, 16 [2014] uksc 45 [44]. 17 [2014] uksc 45 [43]. 18 (1862) 10 hl cas 26. 19 (1880) 5 ex d 319. 20 (1890) 45 ch d 1. 21 [2014] uksc 45 [47]-[49]. 22 (2014) 2 birkbeck law review 59, 62. 23 [2014] ch 1at [61]. 24 like the author of this commentary: see pearce, ‘personal and proprietary claims against bribees’ [1994] lmclq 189. 277 case commentary because there are still some questions which can arise of which will need to be resolved. (i) unauthorised profits other than bribes and secret commissions because of the context, the focus of the supreme court in the monte carlo grand hotel case was on the treatment of bribes and secret commissions by expressly appointed agents, but it can reasonably be assumed that the court’s decision applies to all unauthorised profits made in breach of fiduciary duty. of course, the creation of proprietary rights in favour of the principal by means of a constructive trust, applying the general principles of equity, requires that there are specifically identifiable assets to which the trust can attach. where the gains made in breach of fiduciary duty lack the discrete substance of the single payment which would typically characterise a bribe or commission, a claim to a proprietary right may fail not on principle, but on the question of identification. the principal may therefore be left with only a personal claim for the benefits received by the agent. (ii) agent permitted to mix funds the contractual arrangements under which an agent is employed may sometimes require the agent to segregate the principal’s money from his own (and therefore hold it upon trust); in other cases the agent may be permitted to mix funds received on the principal’s behalf with his own, in which case the assets received by the agent are not held upon trust, and the agent has only a duty to account to the principal for the sums received. millet lj in paragon finance v db thakerar & co25considered that the arrangement in nelson v rye26 was properly characterised in this way: “…it would appear that the defendant was entitled to pay receipts into his own account, mix them with his own money, use them for his own cash-flow, deduct his own commission, and account for the balance to the plaintiff only at the end of the year. it is fundamental to the existence of a trust that the trustee is bound to keep the trust property separate from his own and apply it exclusively for the benefit of his beneficiary.” the obligation to account only on an annual basis was also, in millett lj’s view, inconsistent with a trust because a trustee “is obliged to account to his beneficiary and pay over the trust property on demand.” 25 [1999] 1 all er 400. 26 [1996] 1 wlr 1378. 278 the denning law journal this leads to the question as to whether a constructive trust can be imposed upon an agent of this description who improperly fails to account for all of the money for which he should have accounted at the year end. millett lj was clear that, at least in respect of the sums for which the fiduciary does account, there can be no constructive trust, for the agent is permitted to retain and use the money as his own. what of any additional sums received by the agent? the answer should probably be that this is not substantially different from the monte carlo grand hotel case. if cedar had made full disclosure to fhr of the commission it was receiving from the seller, it could have kept the whole of that commission as its own. because the commission was to be treated as secret (in other word, unauthorised), it was held on trust. again, however, there may be an issue about identification: if the fiduciary is not obliged to account for sums received immediately, it is only after the later failure to account that it can be determined that the agent has made a secret profit, and at that stage there may be no specifically identifiable asset to which the proprietary right can attach. (iii) causal links in order for a constructive trust to attach to profits made by a fiduciary, it must be shown that that the profits relate to a breach of fiduciary duty. there could be significant issues involved in identifying indirect gains where mixed funds have been used to generate a profit or other factors have influenced the achievement of the gains. in sinclair v versailles trust funds (of which tpl, an investment intermediary, was the beneficiary) were received by a company in breach of trust and were used to finance “cross fired” trading (a web of inter-related sham transactions) which gave the appearance that the company was much more successful than was really the case. no profits were made directly by the use of those funds, but the fiduciary (mr cushnie) did make profits from selling shares in the company at prices substantially higher than their true worth. lord neuberger held that “there was undoubtedly a close commercial causal connection between mr cushnie's misuse of the funds in respect of which he owed fiduciary duties to tpl, and the money which he made on the sale of the shares.”27 that causal link was essential to establishing an obligation to account; it would equally be essential to establishing a proprietary claim. similarly, in boardman v phipps28 lord boardman could only be held liable as a constructive trustee for profits made by the reorganisation of a private company because he would not have had that opportunity but for being the solicitor to the trust which had a shareholding in the company. 27 [2012] ch 453 [51]. 28 [1967] 2 ac 46. 279 case commentary (iii) criminal offences in attorney-general's reference (no 1 of 1985)29 a pub manager was charged with offences under the theft act 1968 for purchasing his own barrels of beer, selling them in his managed pub, and retaining the proceeds. he was acquitted on the basis that, although he might have a civil duty to account for the profits he made, he was not a constructive trustee of the proceeds. in so far as the decision was based upon lister v stubbs, which has been overruled, the decision must also be considered to be unsound. however, the court of appeal also raised two further objections to finding the pub manager guilty of theft: because the sums he received from customers consisted of reimbursement for the cost of acquiring the beer and a possible profit element, but it was only for the latter that he was accountable, there could never have been a time when the manager had separate property of which he could be a trustee. “the profit element … remained part of a mixed fund. therefore there never was a moment at which [the manager] was trustee of a definite fund. it follows that there never was a moment when the employers had any proprietary interest in any of the money. the money did not belong to another. there was therefore no theft.”30 in addition, the court was wary of the concept that a person could be considered guilty of theft on the basis of importing the equitable doctrine of constructive trust. “there are topics of conversation more popular in public houses than the finer points of the equitable doctrine of the constructive trust. ... if something is so abstruse and so far from the understanding of ordinary people as to what constitutes stealing, it should not amount to stealing.”31 that view, which relates essentially to the requirement of dishonesty, should be unaffected by the monte carlo grand hotel case. 29 [1986] 1 qb 491. 30 [1986] 1 qb 491 [506]. 31 [1986] 1 qb 491 [506]-[507]. see also r v abdul rashid [1977] 1 wlr 298 (not a criminal offence for a rail steward to “go equipped” with sliced bread and tomatoes with a view to making and selling sandwiches on a train). 280 1. introduction 2. the facts 3. the decision 4. commentary (i) unauthorised profits other than bribes and secret commissions (ii) agent permitted to mix funds (iii) causal links (iii) criminal offences for the purposes of right to self-determination, how does one define people in context of kashmir 263 the denning law journal 2013 vol 25 pp 263-264 book review threats of force: international law and strategy dr francis grimal, routledge 2012, isbn-13: 978-0415609852, price £70.40 hb peter slinn  dr grimal’s monograph on the law of armed conflict relating to threats of force, is a significant contribution to the literature. it ventures along one of the most perilous corridors of uncertainty in modern international law, and attempts with commendable courage to set the legal issues in the context of modern international relations. as professor breau writes in her foreword, the existing literature concentrates overwhelmingly on the actual use of force, and there is little academic analysis of the meaning and significance of the threat of force in terms of the reference in article 2(4) of the united nations charter, to the duty of all members to ‘refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state’. in deconstructing article 2(4), dr grimal draws attention to the use of the word ‘refrain’, rather curiously observing that ‘refrain’ is not the strongest adjective (sic). however, one can sympathise with the author’s observation that threat categorisation is an inaccurate and imprecise science, depending more on context than anything else. dr grimal proceeds to consider what can be gleaned from the jurisprudence of international and national courts and tribunals and the interpretation offered in the practice of united nations organs. he concludes that the existing jurisprudence gives inadequate guidance on what constitutes a threat of force. however, he also concludes that neither the general assembly nor the security council tolerates threats to force. the chapter on threat theory ends with the interesting proposition that the ‘just war theory’ lens may give greater guidance, in terms of establishing the lawfulness of a particular action and whether a threat may be tolerated, if it is designed to uphold some higher purpose. presumably an example would be a threat to use force on humanitarian or similar grounds. such threats appear to have become part of the currency of international relations in the twenty-first  dr peter slinn, adjunct professor of law, university of notre dame (london campus) book review 264 century, so dr grimal’s analysis is of particular contemporary relevance. dr grimal gives specific treatment to the issue of nuclear proliferation as a threat of force in the context of iran and north korea, although the latter’s latest antics took place after dr grimals’s work had gone to press. dr grimal concludes by suggesting a reformulation of article 2(4) based on the caroline test, so that the threat of force is only permitted for the purposes of self-defence in response to an unlawful act. if international law permits the use of force in self-defence, then logically the same should apply to threats. presumably, given the practical difficulties in the way of any amendment of the charter itself, the only hope of implementing dr grimal’s proposal would be by way of an interpretative declaration on the lines of the 1970 friendly relations declaration. dr grimal’s book contains a useful appendix of tables of relevant general assembly and security council resolutions and particularly comprehensive us style footnotes. the argument is clearly presented and, as professor breau suggests in her foreword, is accessible to both students and scholars of international law and of international politics. international lawyers trespass into the field of international relations theory at their peril, but the legal study of the use or threat of force can only be understood in the wider political context, as current events in syria and other parts of the middle east illustrate only too clearly. dr grimal is to be commended for a thought-provoking and scholarly contribution to the debate. unincorporated associations: property holding, charitable purposes and dissolution 183 denning law journal 2013 vol 25 pp 183 -196 case commentary the brave new territory of gay parenting (a v b and c (lesbian co-parents: role of father) [2012] 2 flr 607) mary welstead 1. introduction many couples in same-sex relationships are as enthusiastic in their desire to become parents as those who are in heterosexual relationships. adoption, surrogacy, sperm donation, have all enabled same-sex couples to achieve their parental ambitions and create families. for the most part, they have done so without any interference by, or involvement with, the biological parents after the birth of their children. whilst the majority of lesbian parents tend to use sperm which has been obtained from an anonymous donor, some women have shown a preference to use a sperm donor who is known to them to become the biological father of their children. this may be because they want to know the background, personality and medical history of a potential father before embarking on the procreative process. in some cases, it may also be because some women want their children to have a male role model in their life. using a known sperm donor can, however, involve risks for would-be-mothers if they do not want him to play a significant role in the child‟s life. their dreams of creating an autonomous nuclear family may be destroyed and replaced with a new form of extended family, consisting of three or even four parents if the biological father has a partner. 1 the tale recounted in the appeal court judgment in a v b and c (lesbian co-parents: role of father) (2012) is a cautionary one for lesbian would-beparents and one of hope for potential biological fathers who are known to them. the court of appeal emphasised the paramountcy of the welfare principle, contained in s 1(1) of the children act 1989 in resolving all child  dr mary welstead, cap fellow, harvard law school, visiting professor of family law, university of buckingham. 1 re g; re z (children: sperm donors: leave to apply for children act orders) [2013] 1 flr 1334. case commentary 184 contact disputes. it declined to elicit any further principles in these difficult fact specific cases and stated that the sexual orientation of the parents and their pre-conceptual agreements, or understandings, spoken or unspoken are either irrelevant (per thorpe lj) or relevant but not determinative (per black lj). 2. the facts the facts of the case are somewhat unusual in that the biological gay father, a, and the lesbian mother, b, married each other in july 2007. the couple, who were in their mid-thirties, had been close friends since they were at university together. neither of them wished to live together as husband and wife after the marriage. they viewed it merely as a marriage of convenience which would have benefits for both of them. at the time of the marriage, b was living with her same-sex partner, c, whom she had met not long after leaving university. she introduced c to a, and they too became good friends; the trio socialised regularly together. by marrying a, b hoped that she could mollify her parents, who were middle eastern orthodox christians. they were unable to accept b‟s sexual orientation and her relationship with c. marriage to a would disguise b‟s relationship with c. it would also have a further advantage because b wanted to have a child whose care she would share with c and she needed to placate her parents who disapproved of the birth of children outside of marriage. both b and c thought that a, as a longstanding and trusted friend, would be an ideal biological father who would happily help them to become parents. a also felt that he would benefit by marrying b because he too wanted to father a child, and one with whom he could be actively involved; he did not wish to be a mere progenitor. he very willingly agreed to donate his sperm to artificially inseminate b. by virtue of his marriage, a would automatically acquire parental responsibility for any child he fathered with b. 2 he was, however, unaware that, in the event of any dispute with b about such a child, his parental responsibility might be limited by the court. 3 had c and b been civil partners, c too would have acquired parental responsibility automatically for any child born to b; 4 however, such a status was not open to them given b‟s marriage to a. 5 2 children act 1989, s 2. 3 ibid s 4. 4 human fertilisation and embryology act 2008, s 42. 5 civil partnership act 2004, s 3. the denning law journal 185 both prior to, and after, a and b‟s marriage, the three friends engaged in discussions, often fraught, about the future parenting of any child born to a and b. not surprisingly, there was a mismatch of the trio‟s perceptions of how the child‟s future would pan out. they all agreed that a would play a greater role in his child‟s life than that of a mere sperm donor but were unable to reconcile their differing hopes and expectations about the precise nature of a‟s role. these differences remained unresolved by the time medical help was sought to progress the procreative venture. both a and c attended some of the medical consultations with b and, throughout this stressful time, a was supportive of the two women. he showed particular understanding and sensitivity towards c and her feelings of marginalisation because of the attitude of b‟s family towards her. in december 2008, b became pregnant and, in september 2009, a baby boy, m, was born. at the time of the birth, a was at the hospital with his mother who had flown over from america to see her new grandson. a was registered on the birth certificate as m‟s father, the child was given his name as one of several others, and he was invited to attend m‟s orthodox christening. c was not allowed to attend because of the presence of b‟s family. m lived with b and c in their home where he was cared for by a nanny which allowed both his mothers to continue in their high-powered careers. a visited m but was not permitted to have the child to stay with him in his home which was close by. the relationship between the three friends soon broke down. b and c were very stressed, partly because of their work commitments and partly because c continued to feel insecure about her situation vis a vis b‟s family. she could not accompany b and m on visits to them or be present at any event which involved them. c was also very concerned that, although she was m‟s psychological mother, her role in his life was an unstable one. in particular, she worried about her lack of parental responsibility which meant that that she had no legal authority to make any decisions relating to m if b were absent or worse still were to die. 6 her stress, she felt had an adverse effect on her relationship with b, and consequently also on m‟s welfare. a was equally concerned about his position vis a vis m. he was unable to exercise his parental responsibility in the way that he wanted and could not build a satisfactory relationship with m unless the child could stay with him on a regular basis. 6 children act 1989, s 3. case commentary 186 the interlocutory hearing (2010) in 2010, soon after m‟s first birthday, a applied for a defined contact order to enable him to spend more time with his son. 7 b and c responded promptly and applied for a joint residence order for m and a specific issue order to limit the exercise of a‟s parental responsibility. 8 mrs justice hogg made an interim order which permitted a to spend five hours at a time, once a fortnight, with m, in b and c‟s home. this was, of course, far less than a had wanted. 3. the high court (2011)9 the final hearing to decide m‟s future took place in the high court before hhj jenkins. a argued that his position was analogous to that of a divorced father whose relationship with his child had been established prior to the breakdown of his marriage. such fathers would normally be allowed staying contact with their children which would increase in frequency and duration as the children grew older. b and c objected to any increase in a‟s contact with m over and above that given in the interim order. hhj jenkins rejected a‟s argument. he stressed the importance of the paramountcy of the child‟s welfare in s 1(1), and the importance of the checklist in s 1(3), of the children act 1989 in determining m‟s future. in spite of this emphasis, he appeared to show considerable concern about the needs of the adults in m‟s life and particularly the needs of his two mothers. he acknowledged that b and c:  experienced stress and anxiety over and above that normally experienced in litigation over children. to a great extent this was because of c‟s rejection by b‟s family. it was exacerbated still further because of the uncertainty of c‟s position vis a vis m were b to be away from home, become incapacitated, or die;  viewed a‟s desire to play a greater role in m‟s life as a threat to their autonomy and their dream of a nuclear family in which m would be nurtured in a secure and loving home, and a threat to their relationship with each other;  had a desire to have more children, and by an anonymous sperm donor, which would complicate and change the family dynamics. 7 ibid s 8. 8 ibid. 9 [2013] 1 flr 149. the denning law journal 187 a, he noted:  clearly loved m and took great pleasure in their relationship and wanted to play a full role in his development;  had been supportive of c in her difficulties with b‟s family. hhj jenkins accepted that the nature of the agreement between a and b to marry and the discussions between all three friends prior to m‟s conception were of importance in determining m‟s future and found that:  a and b both accepted that their marriage was one of convenience because of b‟s family‟s objections to her sexual orientation and to her having a child outside of marriage;  a had never received any assurance from b and c about what he perceived his role would be in m‟s life. he may, however, may have been encouraged by their conduct to believe that there might be room for change in the future. at times a heard what he wanted to hear;  b and c were adamant that they had made clear to a that any child he fathered with b would be brought up in a nuclear family by them. however, they would consult a about important issues such as m‟s education, health, and religion;  it was assumed that a would attend family events and special occasions;  a was told that m would be able to visit a‟s family and friends abroad but it had not been specified whether m would also be accompanied by b or c. the judge concluded that: “by agreement with the father, a child was conceived and born and on the basis of a relationship already created where the two mothers were to be the primary carers. the evidence is that they had prepared over a long period for parenthood on that basis, and the evidence is that they have established a regime of security and stability. it is plain that all three parties failed to get to grips with the nature of the relationship. the father never managed to establish an agreement to his satisfaction and he failed in the end to appreciate the way in which the mothers had thought through the stability of the relationship in the way that i have described.” 10 10 [2013] 1 flr 149[36]. case commentary 188 he decided, therefore, to decline a‟s request for a joint residence order but to grant one to b and c. he thought that any benefit which m might gain from a joint residence order between his father and mother, and regular contact and shared holidays with him, would be outweighed by: “… confusion and disruption and the potential disruption of the relationship between the mothers and the child, and it is that relationship which provides the nurture, stability and security for m. that position is made more obvious by the particular anxieties which i have highlighted in this case, in particular the background of b and her family.” 11 hhj jenkins shared the view of black lj in t v t (shared and joint residence orders)(2010) 12 that: “what is profoundly disappointing is to see how, in practice, instead of bringing greater benefits for children, shared joint residence can simply serve as a battlefield for the adults in the children‟s lives, so that even when the practicalities of how child‟s time should be split are agreed or determined by the court they continue to fight over what label is to be put on the arrangement. this can never have been intended when shared/joint residence orders were commended by the courts as a useful tool.” 13 although hhj jenkins declined to restrict a‟s parental responsibility, in reality, the grant of a joint residence order in favour of c did diminish it. a was, left to play a minimal role in m‟s life. according to the judge, m had a right to know that a was his father and he should be allowed to develop a limited relationship with him appropriate to the circumstances surrounding his conception. two homes and three parents for m would be an inappropriate response; that had never been contemplated by b and c. the father‟s contact with m should, therefore, be limited to a five or six-hour visit once a fortnight in b and c‟s home. 14 whilst the judge did not specifically prohibit a from making an application in the future to vary the contact arrangements, he stated clearly that: 11 ibid [37]. 12 [2010] ewca civ 1366. 13 ibid [27]. 14 this was a very slight increase over the contact time contained in the order given by hogg j at the interlocutory hearing. the denning law journal 189 “both parties have essentially invited the court to provide for the future, but it is not really possible to do so. there is the question of the power to vary for i do not see the basis for the staying contact changing very much in the near future.” 15 4. the court of appeal (2012)16 the father appealed on the ground that hhj jenkins‟ negative statement relating to variation of the contact arrangements was both unfounded and unprincipled. the two mothers maintained that:  the judge‟s order did not exclude the possibility of what might happen in the long term;  it was inappropriate to apply the principles relating to contact where a heterosexual couple had cared for their child, prior to living apart, to circumstances where the biological father had never shared a family life with his child. to do so would risk the viability of the relationship between the two mothers which would adversely affect m;  if agreements between gay couples and prospective biological fathers, who were known to them, were to be ignored by the courts, they would be forced to abandon using such men as a means of safe procreation;  agreements made between biological fathers known to lesbian mothers should not only be respected but should rank alongside a child‟s welfare in the determination of parental contact disputes. thorpe lj gave the main judgment. he accepted that the decision of the high court was challengeable, as the judge‟s comments relating to variation imposed, in effect, a bar on any application by a for variation of the contact order without the court‟s permission for some 3–4 years. 17 his lordship held that hhj jenkins had made a fundamental error in relying on a paper written in 2007 by dr claire sturge, an expert in lesbian relationships, 18 and on a line of authority which had taken a similar approach 15 [2013] 1 flr 149 [42]. 16 [2012] 2 flr 607. 17 had the judge wanted to make such a restriction he would have had to have made an order under the children act 1989 s 91(14) and the duration and the extent of the restriction would have been set out in that order which would then have been open to appellate review. 18 claire sturge, „current issues in relation to gay and non-biological parenting‟, a paper presented at the 2007 dartington conferences and published in integrating diversity (jordans publishing 2008). case commentary 190 to that of dr sturge. 19 in her paper, dr sturge had described the stress and insecurity experienced by lesbian psychological mothers vis a vis biological fathers and its damaging effect on their relationships with biological mothers and their children. hhj jenkins had not considered the possibility that dr sturge‟s conclusion may have altered as a consequence of later research. thorpe lj suggested that a report specifically commissioned to consider the situation of a, b, c and m would have been more appropriate. he stressed that the only principle relevant in the determination of contact between a child and his or her parent is the paramountcy principle in s 1(1) of the children act 1989. the approach of the high court meant that many aspects of the case were not considered. 20 thorpe lj, for instance, thought that a's involvement in the whole process of m‟s gestation and his commitment to m from birth should have been taken into account. he suggested that a: “… may be seeking to offer a relationship of considerable value. it is generally accepted that a child gains by having two parents. it does not follow from that that the addition of a third is necessarily disadvantageous.” 21 thorpe lj also thought that consideration should possibly have been given to joining m as a party to the proceedings. an experienced team could then have properly evaluated his welfare and ensured that the concerns of all three parents did not assume a greater importance. more particularly, thorpe lj was concerned about the mothers‟ argument that great weight should be attached to the agreement which they claimed to have reached with a prior to m‟s birth. he stressed the fact that: “human emotions are powerful and inconstant. what the adults look forward to before undertaking the hazards of conception, birth and the first experience of parenting may prove to be illusion or fantasy. b and c may have had the desire to create a two-parent lesbian nuclear family completely intact and free from fracture resulting from contact with the third parent. but such desires may be essentially selfish and may later insufficiently weigh the welfare and developing rights of the child that they have created. no doubt they saw the advantages of a as 19 re d (contact and parental responsibility: lesbian mothers and known father) [2006] 1fcr 556; re b (role of biological father) [2008] 1 flr 1015. 20 thorpe lj suggested that, perhaps, this was because the judge had concluded that they were excluded by the general rule which he had extracted from the line of authorities on lesbian parenting which seemed to favour protecting the female parents from stress. 21 [2012] 2 flr 607 [24]. the denning law journal 191 first an ideal known father and later as a husband to ease problems in the maternal extended family. it would have been naïve not to foresee that the long-term consequences held disadvantages that had to be balanced against the immediate advantages.” 22 thorpe lj drew attention to the judgment of hhj hedley, which post dated the high court decision, in which he had accepted that a new conceptual approach might be required to these less conventional parenting cases. the judge explained: “i have tried hard to see whether there are any other concepts than that of mother, father and primary carer, all conventional concepts in conventional family cases. the best i have achieved and i confess to having found it helpful in thinking about the case is to contemplate the concept of principal and secondary parenting ...” 23 “… accordingly the only guidance that i feel able to give is threefold: first to stress the importance of agreeing the future roles of the parties before the child is born; secondly to warn against the use of stereotypes from traditional family models ... and thirdly to provide a level of contact whose primary purpose is to reflect the role that either has been agreed or has been discerned from the conduct of the parties ...” 24 thorpe lj rejected hhj hedley‟s view that it was important to reflect the agreement of the parents prior to the child‟s birth in determining contact disputes. he also rejected the concept of principal and secondary parents. he thought that it might demean the position of a biological father who was known to the lesbian mothers and reduce him to the role of a mere sperm donor who left the stage once he had made his contribution. in some situations the biological father might have an important role to play in his child‟s life. it would be most unfair to a to categorise him as a mere secondary parent to m; he was not. thorpe lj preferred to employ the concept of primary and secondary carers and proceeded to rank the three parents in accordance with that concept. he accepted that the two mothers, b and c, were at present the primary carers whilst a was, currently, waiting in the wings to become a secondary carer. he was dependent on a court to determine whether he could actually become one. 22 ibid [27]. 23 ml and ar v rwb and swb [2011] ewhc 3431 (fam) [5]. 24 ibid [8]. case commentary 192 thorpe lj concluded that the high court should have considered whether the relationship between m and a was one which should be encouraged to flourish and develop and leave open the issue of future contact to be decided on the basis of the available evidence at that time there were too many unforeseeable factors to have, in effect, ruled out m having staying contact with a at some future date. a‟s appeal was allowed and the case was remitted to a family division judge to consider all the factors relevant to m‟s welfare. this would not take place for another year and would allow the judge to assess future contact in the light of how the current contact arrangements had worked out. thorpe lj ended his judgment by implying that a‟s future contact with his son might depend on whether the current stress of the two mothers had lessened as a consequence of c having joint parental responsibility with b. black lj, who has given a number of judgments relating to conflicts between lesbian mothers and biological fathers, added a short concurring judgment to that of thorpe lj. 25 her ladyship accepted that there had been a distinct lack of precedent for her previous judgments. new forms of family life were evolving which had not yet crystallised. as yet there are no concepts or language designed to accommodated them. the courts have had to continue to struggle to develop a principled approach to fact specific cases. 26 black lj reiterated the importance of the paramountcy of the child‟s welfare in determining these novel parenting issues. she accepted that the high court had carefully considered s 1(3) of the children act 1989 and had found that certain specific factors were potentially relevant. however, her ladyship warned against giving those factors any greater intrinsic weight in future decisions than the other s 1(3) factors. the intentions of a, b and c prior to m‟s conception were considered by black lj to be relevant but not determinative of a‟s parenting role once m was born. she acknowledged the tendency of individuals to change their plans over time when faced with the reality of the situation. her ladyship accepted that it was right for those who contemplated entering into complex procreative arrangements: “…to spell out in as much detail as they can what they contemplate will be the arrangements for the care and upbringing of their child. but no matter how detailed their agreement, no matter what formalities they adopt, this is not a dry legal contract. biology, human nature and the hand of fate are liable to undermine it and to confound their expectations. circumstances change and adjustments must be 25 see eg re d (contact and parental responsibility: lesbian mothers and known father) [2006] 1 fcr 556. 26 [2012] 2 flr 607 [37]. the denning law journal 193 made. and above all, what must dictate is the welfare of the child and not the interests of the adults.” 27 black lj also drew attention to importance of taking into account the emotional state of all the adults involved, or wishing to be involved, in the parenting of the child and its effect on the child‟s welfare: “disruptions to that security and stability, even if arising indirectly because one of the adults is distressed, will be relevant as potentially harmful to the child. sometimes potential disruption will come from one of the parties to the proceedings, sometimes anxiety will be generated from outside, as where there is apprehension about society's response to the child's family arrangements (as there was here in the very early days in relation to m's school) or pressures from other family members (as in the case of b's family).” in granting c a shared residence order, black lj thought that it might make her less anxious and more secure about her role towards, and responsibilities for, m. this could lead to the acceptance by b and c of more generous contact arrangements between a and m. finally, black lj suggested that it might be preferable not to label biological fathers in a‟s situation as sperm donors. the roles of these fathers may vary from one of a close, fulfilling, relationship with their children to a merely nominal one. 5. the future role of parental agreements the court of appeal will be applauded by biological fathers for acknowledging that, regardless of any agreement made in advance of the child‟s birth, if they help their lesbian friends to procreate, they may be allowed to play an important role in the lives of their children. given the difficulties in determining the precise nature of any agreements reached in these emotional situations, 28 and the fact that a biological father may change his mind once he encounters his child at birth, it may have been right for the court to be wary of according importance to them. 29 however, the court‟s 27 ibid [44] 28 see noel arnold, „not straight forward: parental disputes within same-sex families‟ [2012] fam law 1289. 29 courts may be reluctant to consider agreements or parental intentions in the context of procreation because they tend to be somewhat nebulous; in re b (role of biological father) [2008] 1 flr 1015 [14] hedley j found that: “ … each [parent] heard exactly case commentary 194 decision in a v b and c does not entirely close the debate on the role of agreements in the resolution of parental contact disputes. although thorpe lj totally rejected their relevance, black lj took a less rigid approach. she recognised that it was important for parents in these alternative family cases to specify in as much detail as possible the arrangements for their child‟s upbringing and held that their intentions could be a relevant factor even if not a decisive one. this approach suggests that, in the future, greater consideration may be given to agreements between lesbian couples and biological fathers who are known to them. whilst children are not commodities to be dealt with by rigid contracts, intention may well have an important part to play in determining a child‟s future without flouting the paramountcy of the child‟s welfare rule. agreements and welfare may, in fact, be intimately related. there are biological fathers who, prior to parting with their sperm, may make very clear their intention, by words or conduct, their commitment to the welfare of their children and their proposals for fulfilling this commitment. it might be seen as contrary to the children‟s welfare to deny them contact with such a father. a‟s intention may not have been quite so explicit but by his conduct from the moment of m‟s gestation, he had implicitly shown his intention to be intimately involved with m. it is difficult to see how it would benefit m‟s welfare if this relationship were to be more limited after m‟s birth than it was during the period of gestation. a‟s request for staying contact with m, which would increase as m got older, would seem to be a natural consolidation of a‟s commitment to m‟s welfare. other biological fathers may make their intentions clear to lesbian mothers, when they hand over their sperm, that they do not wish to have any contact with their children. if they change their mind at a later date, they would perhaps have a harder task in convincing a court that they have the necessary commitment to the child‟s welfare to permit them to play a fatherly role in the child‟s life. if the agreements between known biological fathers and lesbian mothers are not to be taken into account, comparisons will be made with heterosexual couples whose presumed agreements to bring up their children jointly are honoured after the couple‟s relationship breakdown. they are assumed to have been made for the benefit the child‟s welfare. accusations will be made that children of lesbian parents and their known biological fathers are subject to a form of discrimination which may deprive them of a valuable male parental relationship. 30 what they wanted to hear and excluded everything that did not fit with their aspirations.” 30 see duncan ranton and chris mcintosh, „the judicial approach to alternative families: discrimination or vive la difference?‟ [2012] fam law 1135. the denning law journal 195 6. maternal blackmail the court of appeal‟s judgment illustrates that no matter how caring and loving a biological father might prove himself to be towards his child, he may still face one significant obstacle to contact. lesbian mothers, who wish to exclude fathers from contact with their children, are likely to centre their argument on black lj‟s statement about the connection between a child‟s security and the stability of the mothers‟ relationship with each other. it is all too easy for mothers who are insecure about their relationship to maintain that contact between the child and his biological father is destabilising for the family even when their insecurity stems from other factors. 31 the mothers‟ argument may be difficult to challenge unless the courts are prepared to take a robust approach towards it. after all, a similar argument could equally be put forward by any mother who commences a new relationship with a man who assumes the role of stepfather to her children. it is unlikely that a court would deny the children staying contact with their biological father on the grounds that it might distress the stepfather and jeopardise his relationship with the mother which, in turn, would negatively affect the children. children have a right, wherever possible, to know, and enjoy a relationship with, their parents of both genders. the insecurity of their mothers should not deny them this right. to accept this argument without evidence that it is the biological father who is the cause of the destabilisation of the relationship is tantamount to acceding to the blackmail of mothers. 7. conclusion family life and parenting in the 21 st century have changed dramatically. these new family forms are foreign territory for parents, both biological and psychological, their children, and the judiciary. many families, today, do not conform to the idealised model of the nuclear family so avidly desired by the lesbian mothers, b and c, 32 and they are likely to increase in number. 33 it is 31 [2012] ewca civ 285,[45]. see also claire sturge, alternative families seminar 24th may 2012, 4 paper buildings, „the kids are all right‟, a psychological and legal perspective, http://www.4pb.com/media/publications/seminar_notes/alternative_familes_semina r_2012.pdf 32 see singh v entry clearance officer, new delhi [2005] 1 flr 308 [63]) in which dyson lj said: “the fact is that many adults and children, whether through choice or circumstance, live in families more or less removed from what until comparatively recently would have been recognised as the typical nuclear family”. case commentary 196 not only the courts who have to accept, and grapple with, the reality of these families in their search for principles which will ensure the children‟s welfare, it is also the parents who are responsible for their creation. to exclude known biological fathers, who wish to play a significant part in their children‟s lives, from contact with them is to indulge in the pretence that same-sex procreation is possible. as yet, it is not. 34 until it does becomes feasible, lesbian wouldbe-mothers require male progenitors to help them create their longed for families. the sometimes selfish desires of these mothers to autonomy in their family life should not be allowed to prevail, in the absence of any contrary welfare indication, over the rights of children to have a relationship with their known biological fathers. 33 in particular, the enactment of civil partnership legislation in 2004, the right to parental responsibility, under the hfea 2008, for lesbian partners who are not biologically related to the child, and the pending legislation on same-sex marriage, are all likely to lead to an increase in the number of children born into same-sex families. 34 same-sex reproduction may not be such a long way away, see e.g http://www.newscientist.com/article/mg19726413.000-editorial-getting-ready-forsamesex-reproduction.html unincorporated associations: property holding, charitable purposes and dissolution 191 denning law journal 2012 vol 24 pp 191-205 case commentary the pursuit of proprietary remedies for breach of fiduciary duty sinclair investments (uk) ltd v versailles trade finance ltd (in administration) court of appeal [2011] ewca civ 347 robert pearce* and jennifer shearman** introduction there is an old adage that if an opportunity looks too good to be true, then it almost certainly is. despite this, the law reports are filled with examples of people seeking redress for the fallout from “get rich quick” schemes that have gone wrong. one type of scam, exemplified by the fraudulent investment scheme run by bernard madoff from the united states and which collapsed in 2008, is known as a “ponzi 1 scheme”. 2 the wrongdoer in such a scheme invites “investments” promising a high rate of return. the funds subscribed are not in fact invested (or if they are, they are invested in vehicles which produce a lower rate of return than that promised). instead, the money from new subscribers is used to pay the rewards to earlier subscribers. in due course the scheme is bound to collapse, because there will be a point at which the new funds coming in are insufficient to make the payments to existing subscribers, and the bubble of new investment can continue only for as long as there is confidence on the part of subscribers, encouraging fresh deposits. when the scheme begins to unravel, it falls apart very quickly, since the assets held by the wrongdoer are inevitably inadequate to reimburse all of the subscribers in full. in the ensuing insolvent liquidation, subscribers stand to recover only a small fraction of their subscription as unsecured creditors unless they can demonstrate that they have a proprietary interest in some of * bcl, ma, hon lld, frsa, professor in law, university of buckingham. ** bsc (surrey), solicitor, senior lecturer in law, university of buckingham. 1 named after charles ponzi who ran a fraudulent investment scheme of this kind in the united states in the early 20 th century. 2 another significant example is the stanford international bank, run by sir robert stanford in antigua. see re stanford international bank ltd [2010] ewca civ 137. case commentary 192 the remaining assets. sinclair investments (uk) ltd v versailles trade finance ltd is a case involving what the judge at first instance called a “classic ponzi scheme”. the facts carl cushnie was (through a company he controlled) the major shareholder in versailles group plc (vgp). this company in turn had a trading subsidiary, versailles trade finance ltd (vtfl) whose business was ostensibly a modified form of factoring. in order to supposedly finance this business, investors paid in money through another company, trading partners ltd (tpl) which was not part of the versailles group but in respect of which mr cushnie was a director. furthermore, monies had been made available by various banks, in the main by way of secured lending. in fact, the money advanced by tpl to vtfl was not used in genuine trading activities. instead, part of the funds were used to pay the purported profits to the investors, part was stolen by an associate of mr cushnie, and part was circulated (or “crossfired”) through companies within or associated with the versailles group to create an illusion that vtfl was trading at a substantial level. the tangled web of deceit deluded investors, banks, auditors, the stock exchange and the financial press into believing that the versailles group was a genuine and successful set of companies for some considerable time. 3 inevitably however the scheme collapsed, and in due course the banks appointed joint administrative receivers. the principal ways in which mr cushnie profited from the fraudulent enterprise were that he received dividends which were paid on the false basis that the versailles group was making distributable profits and more substantially, he received £28.69million from a sale of part of his shareholding in vgp. when the administrative receivers were appointed they pursued claims against mr cushnie (some of which were settled) and made substantial payments to the banks which had lent to vtfl. the claimants, sinclair investments, had invested through tpl and had also taken an assignment of tpl’s claims. they asserted two proprietary claims against the money received by the banks from the administrative receivers. the first was in respect of the proceeds of sale of the shares in vgp, which they claimed were held on constructive trust for tpl and the 3 in much the same way that bernard madoff’s ponzi scheme, masked by a large volume of stock trading, escaped detection for at least a decade and possibly for as long as 30 years. the ability of fraudulent schemes of such magnitude as these escaping detection, and indeed, often receiving plaudits from the financial services industry and some financial journalists, raises serious issues about the effectiveness of industry regulation. the denning law journal 193 second was in relation to the monies which had passed from tpl to vtfl and were mixed with vtfl’s own monies. the claim to the funds paid to vtfl the second of the proprietary claims was the less controversial. it was agreed that the claimants had a proprietary interest in the funds paid to vtfl. the funds originally received by tpl were held on trust (there was an express term of the contract with the subscribing investors to this effect), and the investors therefore retained a beneficial interest in those funds when they were paid to vtfl which received them subject to fiduciary duties contained in its management agreement with tpl. what was disputed was whether the claimants had the right to assert this claim against the banks since it was argued that it was impossible to trace any of the money through vtfl which was variously described as a “black hole” or a “maelstrom”. the court of appeal however upheld the decision of lewison j at first instance that this was a valid claim. even though the funds had been inextricably mixed with other money by vtfl, lord neuberger mr observed: “i do not doubt the general principle, reiterated by lord millett in foskett v mckeown,4 that, if a proprietary claim is to be made good by tracing, there must be a clear link between the claimant's funds and the asset or money into which he seeks to trace. however, i do not see why this should mean that a proprietary claim is lost simply because the defaulting fiduciary, while still holding much of the money, has acted particularly dishonestly or cunningly by creating a maelstrom. where he has mixed the funds held on trust with his own funds, the onus should be on the fiduciary to establish that part, and what part, of the mixed fund is his property.” 5 the court concluded that both principle and authority supported that proposition, referring in particular to the fact that lord millett had specifically quoted with approval the observations of page wood v-c in frith v cartland 6 that “if a man mixes trust funds with his own, the whole will be treated as trust property, except so far as he may be able to distinguish what is his own”. tpl was thus able to maintain a claim to any funds which had been paid to vtfl and it was for the administrative receivers to show, on the balance of probabilities, that any funds received by them did not represent funds due to tpl. this claim against vtfl could also be maintained against the banks 4 [2001] 1 ac 102. 5 [2011] ewca civ 347 at 138. 6 (1865) 2 h&m 417 at 418. case commentary 194 who received payments from the administrative receivers except to the extent that they could show that they received the funds without notice of the claimants’ equitable rights. the banks had received the first distributions in good faith and without such notice, but once they had been informed that the claimants had a proprietary claim they could no longer rely on this defence. the claim to the proceeds of sale of the shares in vgp a more complex issue related to the other proprietary claim made by the claimants. it was agreed that mr cushnie owed fiduciary duties to both tpl and vtfl. the claimants relied on the fact that mr cushnie was able to sell his shares in vgp at a substantial profit because as a director of tpl and in breach of his fiduciary duty he dishonestly misused tpl’s funds in the crossfiring activities in order to inflate the apparent turnover and profits of vtfl, thereby increasing the supposed market value of its holding company vgp. without the cross-firing it would have been obvious that vgp was in reality worthless. this profit in selling shares at an artificially inflated price, it was argued, was held on constructive trust and allowed the claimants to assert a proprietary claim in the proceeds of sale. this in turn permitted them to trace into the amounts received by the banks insofar as they had notice of the claim. on the face of it, this argument was supported by the decision of the privy council in attorney general for hong kong v reid. 7 this controversial decision 8 held that where a dishonest fiduciary accepted a bribe (in that case a bribe taken for subverting the course of justice), a constructive trust was immediately imposed upon the recipient. this enabled the bribe to be traced into assets which were no longer in the possession or ownership of the fiduciary. the facts in the versailles case were different, and the two situations might have been distinguished: the secret profit claimed in the versailles case was not a bribe, nor the acquisition of a new asset by the dishonest fiduciary. it was, instead, an increase in the value of an asset (albeit otherwise worthless) already held by the fiduciary. the court was of the view 9 that nonetheless the unauthorised secret profit in the present case should be treated in the same way as a bribe, even though mr cushnie had not acquired the shares as a result of his breach and the profit was made as a shareholder and not a director of vtfl (indirectly through vgp). despite this, the court of appeal declined to follow reid. lord neuberger pointed out that as a general rule the court of appeal should follow its own previous decisions rather than a decision of the privy 7 [1994] 1 ac 324. 8 see pearce “personal and proprietary claims against bribees” [1994] lmclq 189. 9 [2011] ewca civ 347 at 56. the denning law journal 195 council, although there might be an exception where it was a foregone conclusion that the supreme court would prefer the privy council decision. 10 lord neuberger did not think that this was a case where the supreme court would necessarily prefer the decision of the privy council. 11 in his view, the court was instead bound by a series of contrary decisions of the court of appeal, commencing with the cases of metropolitan bank v heiron 12 and lister & co v stubbs. 13 in the first of these two cases a director of a company who had taken a bribe raised the defence of limitation in respect of an action brought against him by the company to recover the bribe. the court of appeal in that case held that a bribe received by a company director amounted to a debt owed in equity to that company which, by analogy to a legal action to recover a debt, would be subject to the same limitation period as governed by the statute of limitations; no proprietary claim (which would not have been subject to the limitation period) was available to the company. in lister & co v stubbs an employee took bribes in return for selling his employer’s goods at a reduced price. despite the clear association between the illicit profit made by the employee and the damage suffered by the employer, the court of appeal held that the obligation on the employee was simply a personal obligation to account, with no proprietary rights on the employer’s part attaching to the bribe or its proceeds. lord neuberger referred 14 to the strong statement made by lindley lj: “…the relation between them is that of debtor and creditor; it is not that of trustee and cestui que trust. we are asked to hold that it is – which would involve consequences which, i confess, startle me. one consequence, of course, would be that, if [the employee] were to become bankrupt, this property acquired by him with the [bribe] would be withdrawn from the mass of his creditors and be handed over bodily to [the employer]. can that be right? another consequence would be that [the employer] could compel [the employee] to account to them, not only for the money with interest, but for all the profits which he might have made by embarking in trade with it. can that be right? it appears to me that those consequences shew that there is some flaw in the argument.” 15 10 ibid at 73 to 74. 11 ibid at 76. 12 (1880) 5 ex d 319. 13 (1890) 45 ch d 1. 14 [2011] ewca civ 347 at 66. 15 (1890) 45 ch d 1 at15. case commentary 196 those two cases had been followed in three subsequent decisions (archer’s case, 16 powell & thomas v evan jones & co, 17 and, a-g's reference (no 1 of 1985) 18 ) and were supported by an earlier decision of the house of lords, tyrrell v bank of london. 19 the preference for the reasoning in lister & co v stubbs was, moreover, supported by two decisions of the court of appeal following the reid case, gwembe valley development co ltd v koshy (no 3), 20 and halton international inc v guernroy. 21,22 in his view, another reason for not following reid was “that there is a real case for saying that the decision ... is unsound” continuing “there can ... be said to be a fundamental distinction between (i) a fiduciary enriching himself by depriving a claimant of an asset and (ii) a fiduciary enriching himself by doing a wrong to the claimant.” 23 he further pointed out that much of the reasoning in reid was circular; 24 the privy council in reid had misapprehended the extent to which tyrrell v bank of london was inconsistent with its decision, 25 and the decision had been criticised in most academic commentaries. 26 the result desired in the case (to deprive a false fiduciary of any profit) could have been achieved by means of an equitable account. 27 on the merits of the decision, lord neuberger expressed his view that lord templeman in reid “may have given insufficient weight to the potentially unfair consequences of the decision to other creditors, if his conclusion was right.” 28 commentary (1) fiduciary duties give rise to personal obligations the duties of a fiduciary are essentially duties of loyalty: to subrogate his or her own interests to those of the principal, and to act with honesty and integrity. whilst fiduciaries have frequently been confusingly described as 16 [1892] 1 ch 322. 17 [1905] 1 kb 11. 18 [1986] 1 qb 491. 19 (1862) 10 hl cas 26. 20 [2004] 1 bclc 131. 21 [2006] ewca civ 801. 22 [2011] ewca civ 347 at 85. 23 ibid, at 80. 24 ibid, at 78. 25 ibid, at 61. 26 ibid, at 81. 27 ibid, at 79. 28 ibid, at 83. the denning law journal 197 constructive trustees 29 (the classic example of this ambiguous description being boardman v phipps 30 ), a breach of fiduciary duty is not in essence substantially different from the breach of other duties such as contractual or tortious duties. 31 the enforcement of duties in contract and in tort does not require the imposition of a proprietary remedy, nor does a breach of fiduciary duty, without more. this analysis of breach of fiduciary duty as giving rise to a personal liability only lies at the heart of both metropolitan bank v heiron and lister & co v stubbs. (2) when will a proprietary remedy be available? so when will a proprietary remedy be available against a fiduciary? there are two prime instances, both of which can be explained as examples of a fiduciary depriving a claimant of an asset. the first is where the assets claimed were originally beneficially owned by the claimant or have been acquired directly using funds owned beneficially by the claimant. lord neuberger explained the principle (by exclusion) in this way: “ … previous decisions of this court establish that a claimant cannot claim proprietary ownership of an asset purchased by the defaulting fiduciary with funds which, although they could not have been obtained if he had not enjoyed his fiduciary status, were not beneficially owned by the claimant or derived from opportunities beneficially owned by the claimant.” 32 in the versailles case, there was no real defence to the claim that funds paid to tpl and held by it on an express trust could be traced into the hands of the banks which had received those funds to the extent that the original funds or their product could still be identified. applying the principle as explained by lord neuberger, a proprietary right can additionally be asserted not just where property was from the outset beneficially owned by the claimant, but also where a trustee holds a right or opportunity exercisable on 29 there is a growing awareness of the desirability of being much clearer in the use of this term: see fhr european venture llp [2011] ewhc 299 where simon j, following versailles and cadogon (below), said that he should have described a person who had gained financially through a breach of fiduciary duty as “accountable in equity” rather than as a “constructive trustee”. see also paragon finance plc v db thakerar & co [1999] 1 all er 400 at 408-409 (millett lj). 30 [1967] 2 ac 46. 31 see shearman and pearce “exempting a trustee for gross negligence” [2011] denning lj 181. 32 above n 22, at 89. case commentary 198 behalf of the trust, and chooses to exercise the right or to exploit the opportunity for his or her own benefit. according to lord neuberger, this is one of the potential explanations of keech v sandford. 33 the second instance where a proprietary remedy can be exercised against a fiduciary is where assets are acquired by an agent acting on behalf of a principal. an agent acquiring property in accordance with the principal’s instructions does so on the principal’s behalf. as lord parker of waddington said in jacobus marler estates v marler: 34 “an agent, whose duty it is to acquire property on behalf of his principal, cannot, without ... consent, acquire it on his own behalf and subsequently resell it to his principal at an enhanced price. in such a case the principal can treat the property as originally acquired for him and the resale as nugatory.” this principle applies only, however, where the agency already exists at the time the agent acquires the property: “if it did not then exist the property acquired was, at the outset, the agent’s own property for all purposes, and the subsequent constitution of the relationship of principal and agent cannot deprive him of property already his own.” the agency need not have been formally constituted. in tyrrell v bank of london 35 a solicitor knew that his client was interested in acquiring a piece of land. he bought the land himself. the house of lords held that the solicitor was to be treated as having acquired the land on behalf of his client, so that he was a trustee of that part of the property in which his client was interested (but not of the remainder). (3) the agency principle there can be difficulties in identifying the limits of the two situations described above. looking first at the limits to the agency principle, there can be little doubt that this applies where there is an expressly created agency. there will be comparatively little difficulty where the express purpose of the agency was for the agent to make the acquisition on behalf of the principal. 33 (1726) sel cas ch 61. another, and more satisfactory, explanation of the proprietary nature of the beneficiary’s right is that the extension of the lease was essentially a graft, enlarging the beneficiary’s existing proprietary interest. 34 114 lt 640. see also a. b. cook v george s. deeks [1916] ukpc 10. 35 (1862) 10 hl cas 26. the denning law journal 199 however, in the tyrrell case the solicitor had not been appointed expressly as an agent for the purpose of acquiring the land concerned. the scope and limits of the agency therefore had to be implied. there may also be cases where it is even less clear that there is an agency at all. lord neuberger in versailles described the agency principle in this way: “in cases where a fiduciary takes for himself an asset which, if he chose to take, he was under a duty to take for the beneficiary, it is easy to see why the asset should be treated as the property of the beneficiary. however, a bribe paid to a fiduciary could not possibly be said to be an asset which the fiduciary was under a duty to take for the beneficiary.” 36 not everyone might agree with this final conclusion. after all, in many cases the receipt of the bribe will cause a direct financial loss to the beneficiary. 37 however, lord neuberger’s conclusion is strongly supported by a-g's reference (no. 1 of 1985). 38 in that case a salaried pub manager, in addition to selling his employer’s beverages, purchased his own and sold them over the bar, pocketing the proceeds. it was held in a criminal prosecution that the money he received from customers did not belong to his employer, yet it would be hard to think of a case where the case for an implied agency would be stronger. the pub manager was doing what he was employed to do (namely to supply drinks across the bar); the customers would have assumed (if they knew the pub manager’s status) that he was selling the employer’s drinks and that he was receiving payment on the employer’s behalf; and all the legitimate payments he received were taken on the employer’s behalf and would have belonged to the employer. when, therefore, can a duty to acquire property on a principal’s behalf be implied? that is not at all clear. it may be, in view of the recent decision in crossco no 4 unlimited v jolan ltd 39 that negotiations for a joint venture may give rise to such a duty. in that case etherton lj, expressing a view with which the majority disagreed, suggested that the “pallant v morgan equity” cases should be seen as based upon the existence and breach of fiduciary duty, 40 in most cases (including in pallant v morgan itself) because the evidence disclosed that the joint venture arrangement amounted to an agency or partnership. 41 in pallant v morgan 42 the two parties to the litigation had 36 versailles [2011] ewca civ 347 at 80. 37 this point is considered further below. 38 [1986] qb 491. 39 [2011] ewca civ 1619. 40 ibid at 88. 41 ibid at 88. case commentary 200 agreed before an auction sale that they would not bid against each other, but that the property would be divided between them if the defendant’s agent was the successful bidder. the defendant sought to renege on the understanding after the sale. harman j held that although the pre-auction agreement was not sufficiently clear to amount to a specifically enforceable contract, the defendant held the property on trust for both parties. the decision has been followed and applied on a number of occasions, most notably in banner homes group plc v luff developments ltd, 43 a decision which was endorsed by the house of lords in yeoman’s row management ltd v cobbe. 44 these cases suggest that the basis for the equity is a common intention constructive trust. the majority of the court of appeal in crossco v jordan (mcfarlane lj and arden lj) felt that the court of appeal was obliged to adopt this interpretation, 45 but etherton lj considered that it could not survive strong indications in stack v dowden 46 and jones v kernott 47 that the common intention constructive trust was to “be seen clearly in retrospect as a specific jurisprudential response to the problem of a presumption of resulting trust and the absence of legislation for resolving disputes over property ownership where a married or unmarried couple have purchased property for their joint occupation as a family home.” 48 it is open to the supreme court to prefer etherton lj’s view, but even if it does, there is a further question as to whether the fiduciary duty upon which etherton lj indicates the remedy should be based is sufficient to create a proprietary constructive trust through the implication of an agency, or whether the breach of fiduciary duty creates only personal rights and remedies. (4) the proprietary base it is similarly difficult to be certain where the limits are to the first principle, that a proprietary claim will succeed if there is a proprietary base because the assets being claimed were originally beneficially owned by the claimant, or they are directly derived from assets, a right, or an opportunity, beneficially owned by the claimant. whilst the core of this principle is clear, the full extent of it is not. 42 named after pallant v morgan [1953] ch 43. 43 [2000] ch 372. 44 [2008] ukhl 55. 45 [2011] ewaca civ 1619 at 120-122 and 128-130. 46 [2007] 2 ac 432 at 40-46. 47 [2011] uksc 53 at 25, 56, 57, 61 and 78. 48 [2011] ewca civ 1619 at 85. the denning law journal 201 (5) opportunities as property it is uncontroversial to suggest that assets can be followed in their original form, or traced into their exchange product. 49 however, the concept that an opportunity can be beneficially owned is difficult. 50 not least among the obstacles to accepting that opportunities can be property is the very clearly expressed view of lord wilberforce in the house of lords in national provincial bank v ainsworth: 51 “before a right or an interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties and have some degree of permanence or stability.” these are not characteristics naturally associated with opportunities, which will frequently be vague and undefined, and transient in character. opportunities can arise from a wide range of circumstances. at one end of the spectrum, it is easiest to conceive of an opportunity “belonging” to someone when it has arisen through the development of a new product or process through investment in research and development, particularly if this leads to intellectual property capable of formal legal protection such as copyright or the grant of a patent. however, if the logic of giving a proprietary remedy to the principal wishing to recover gains made by a fiduciary from the abuse of such an opportunity is that there is proprietary base for these gains, then surely the principal should equally be able to exercise proprietary remedies against anyone else who knowingly breaches the intellectual property rights of the principal by making a personal profit from the use of a patent or copyright material. whilst there is no reason in logic or in principle why intangible property cannot be followed or traced, 52 giving a proprietary remedy permitting the direct restoration of stolen or misappropriated intellectual property or the restitution of its direct substitute is a long way from accepting that there can be a proprietary interest in funds generated through the use of ideas protected by intellectual property legislation, and even less so where the opportunity is 49 see pearce “a tracing paper” [1976] 40 conv (ns) 277. 50 see tang hand wu “confidence and the constructive trust” (2003) 23 legal studies 135 at 147. 51 [1965] ac 1175 at1247-8. 52 see armstrong dlw gmbh v winnington networks ltd [2012] ewhc 10 where stephen morris qc, sitting as a deputy high court judge, allowed proprietary claims to succeed in respect of misappropriated european union allowances (tradeable carbon emission allowances). case commentary 202 not so protected. this may be better demonstrated by an analogy. if i steal watercolours painted by and belonging to the prince of wales, i can be compelled to return them, or to give up the proceeds i receive if i sell them. there will be proprietary remedies in both cases because the claim is to the original property or its exchange product. however, if i put the paintings on display and make a charge for people to view them, whilst i am almost certainly accountable for the profits i make (and i certainly will be where i acquired the paintings through the breach of an existing fiduciary duty), the remedy in respect of these profits is personal only since the profits do not represent the original property or its exchange product. 53 it should make no difference where the property is intangible (such as copyright material) rather than tangible (such as the paintings). the case for arguing that the principal is the beneficial owner of an opportunity is much weaker in most other contexts. many opportunities arise from the identification of a gap in the market, using information which is publicly available. it is hard to conceive of such opportunities belonging to anyone, even if they are identified by an employee or company director in a fiduciary position, perhaps with a responsibility to identify and exploit such opportunities. the case for giving the principal a proprietary remedy against a fiduciary wrongfully exploiting this kind of opportunity appears to be even weaker than that for giving a proprietary remedy to recover a bribe where it will frequently be the case (as in lister v stubbs) that the whole purpose of the payment of the bribe was to save at least an equivalent sum in what would otherwise have been paid to the principal. 54 in cadogan petroleum 55 counsel argued that bribe cases could be treated as examples of opportunities beneficially owned by the claimant since a bribe or secret commission would result in a reduction in the price otherwise payable to the claimant by at least as much as the amount of the bribe. newey j was correctly not persuaded. 56 even where the opportunity to make a personal gain arises from a specific approach suggesting a profitable business venture being made to the principal through the fiduciary, 57 the real wrong done to the principal is the disloyalty of the fiduciary rather than the use of an asset which the principal owns. 53 the profits so made are not materially different from the profits made by the public house manager in a-g's reference (no. 1 of 1985) [1986] qb 491. 54 a bribe will not invariably confer a financial advantage, as in reid, where the favour being sought was the perversion of a process. 55 [2011] ewhc 2286. 56 ibid at 30. 57 or where the fiduciary acquires information through his position, as in boardman v phipps. the denning law journal 203 there are cases (reviewed by lewison j in ultraframe (uk) ltd v fielding) 58 in which maturing business opportunities have been treated as “corporate property” so that directors cannot exploit them for their own benefit even after ceasing to be employed by the company, and if they do will be subject to a “constructive trust”. however, it does not follow from the use of the phrase constructive trust that a proprietary liability is imposed, and lewison j in his careful review expressed the opinion that a company’s profits cannot be the subject of tracing or following. 59 since lewison j links his review of the cases on corporate opportunities to the inability to trace into profits (which are not assets) it would appear to be his view that notwithstanding suggestions that corporate opportunities can be corporate property, this is merely a convenient description for opportunities in respect of which the company can assert rights, and that it does not follow from this description that there will be a proprietary remedy to recover any profits made by the exploitation of those opportunities, even if there may be a personal obligation to account. in any event, the cases also require review in the light of the criticism made in the versailles case of the attempt in reid to push out the boundaries of proprietary remedies. (6) why seek a proprietary remedy? there are three main occasions when a claimant will seek to pursue a proprietary claim. the most usual is because the fiduciary is insolvent, as a proprietary claim will confer priority over the other creditors. great care has to be taken in limiting the bounds of proprietary claims within proper limits lest there be an unfair impact upon the creditors. 60 in the versailles case mr cushnie’s frauds had made him appear extremely wealthy, and many people may have extended credit to him in the belief that his apparent wealth made him a good risk. the effects of the fraud impacted on a wide range of people. can it convincingly be said that the “investors” in tpl were really any worse impacted than the investors who bought vgp shares at grossly inflated prices? both were victims of exactly the same dishonest dealings. there is some authority which suggests that the victim of a fraudulent transaction may be able to obtain rescission and thereby restore equitable title to the extent 58 [2005] ewhc 1638 at 1332-1355. 59 ibid at [1470] to 1475. 60 see allen “bribes and constructive trusts: a-g of hong kong v reid” (1995) 58 mlr 87 and also lord neuberger’s criticism of the reid decision in versailles [2011] ewca civ 347at 83. case commentary 204 necessary to support an equitable tracing claim. 61 this might have allowed the investors who purchased shares in vgp to establish proprietary claims to the sums which they paid for the shares. giving these investors a proprietary claim might help to redress the balance in their favour, but it would have the effect of further disadvantaging other creditors unable to establish a proprietary interest. there will therefore in due course need to be an evaluation of this line of authority. the second reason for making a proprietary claim is to enable the claimant to follow or trace an asset into the hands of a third party recipient of funds. this appears to have been a significant factor in the reid case, where the funds which reid had obtained through bribes had been “laundered” and invested in properties in new zealand. in many large scale frauds, funds will have been laundered and dispersed, but creating a proprietary claim is against principle and as lord neuberger points out, is capable of having unfair consequences on other creditors. 62 finally, a proprietary claim will be sought when an asset acquired using dishonestly or improperly generated funds has increased in value. foskett v mckeown makes it clear that where a beneficiary’s funds can be traced into an asset which has increased in value, or otherwise generates assets greater than those used to acquire it, the beneficiary can make a claim to a proportionate share and is not restricted to a charge for a sum equal to the beneficiary’s loss. in lister & co v stubbs the court of appeal viewed with equanimity the possibility of a dishonest fiduciary retaining profits made with the funds improperly acquired (see above). most observers would be less content for a wrongdoer to be able to benefit in this way. but lord neuberger points out 63 that it would be possible for equitable account to be used to deprive a wrongdoer of such gains. equitable account is a tool of potentially very great flexibility, and provided that there is a debt due, as there very clearly is where a fiduciary has abused his or her position and thereby obtained an authorised profit or payment, there appears to be no reason of principle why equitable account could not be used to quantify both direct and indirect gains made by the fiduciary, although this would undoubtedly require development of the law beyond the limits clearly expressed in lister & co v stubbs. 61 see el ajou v dollar land holdings [1993] 3 all er 717 at 734d; shalson v russo [2003] ewhc 1637 at 120-127; re stanford international bank ltd [2012] ew misc1 (central criminal court) at 98. 62 [2011] ewca civ 347 at 83. 63 [2011] ewca civ 347 at 46 and 79. the denning law journal 205 conclusion the rejection of reid and the outcome in the versailles case is welcome. although the versailles case has already been applied without criticism at first instance, 64 inevitably a considerable measure of uncertainty will remain until the supreme court is able to review the law in this area. the court of appeal in versailles could have avoided considering reid and the other bribe cases. the taking of a bribe from a third party by a fiduciary and making a profit from it is very different from the taking of a beneficiary’s money and using it in such a way that it ultimately increases the value of assets already owned by the fiduciary. lord neuberger himself said that there “was undoubtedly a close commercial causal connection between mr cushnie’s misuse of the funds in which he owed fiduciary duties to tpl, and the money which he made on the sale of the shares”. 65 but because this was not a case where the claimants were purporting to follow their assets into the profits, the court was prepared to equate it to bribe cases inasmuch as in both instances the receipt of the money by the fiduciary derived from his breach of fiduciary duties. this seems to be casting the net very widely. the refusal to follow reid was not inevitable: the law abounds with instances where a decision of the privy council has changed english law. the decision to prefer lister & co v stubbs, whilst justified on the detailed reasoning in this case, also reflects a policy decision to limit the scope of proprietary remedies, and endorses the view that the normal remedy for a breach of fiduciary duty is a personal remedy only. the suggestion – albeit with a number of caveats – that equitable account could be used to deprive a fiduciary of profits made through the investment or other use of misappropriated funds certainly merits further exploration. lord neuberger recognised that existing authority does not create a strong basis for such an extension, and indeed lister & co v stubbs contains unambiguous remarks which are inconsistent with this use of equitable accounting. nonetheless, to deprive the fiduciary of profits derived from exploiting the proceeds of his misdeeds, prevents the scandal of a dishonest fiduciary profiting from his wrongdoing, and could be considered to have a prophylactic effect by creating an environment in which false fiduciary will have the worst of both worlds – being obliged to cover any loss which the fiduciary’s actions have occasioned, but never being able to retain a profit, even one made indirectly. to do this by way of equitable account is certainly far more satisfactory than engineering a proprietary right to achieve the same result. 64 cadogan petroleum plc v tolley [2011] ewhc 2286; page v hewetts solicitors [2011] ewhc 2449. 65 at 51. for the purposes of right to self-determination, how does one define people in context of kashmir 21 the denning law journal 2012 vol 24 pp 21-37 divorce in england and wales: time for reform mary welstead introduction the clamour of voices crying out for reform of the law relating to financial provision on divorce is regularly heard. the judiciary, the academic community, lawyers and prospective divorcees have all expressed concern about the problematic nature of the current law and the urgent need for change. 1 yet these same voices rarely draw attention to the major defects inherent in divorce law itself. the battle for divorce reform which dominated the family law debate during the latter part of the 20th century appears to have been abandoned, along with the decision in 2001 by lord irvine of lairg, the then lord chancellor, not to bring into force the major reforms to divorce law contained in part ii of the family law act 1996 (see below). there is now an uneasy and, for the most part, a silent acceptance that the majority of spouses who want to bring their relationship to a legal end will find a way of doing so. the fact that they might have to resort to a massaging of the law, which may at times border on outright dishonesty, to secure their freedom and the right to embark on a new legal relationship, is largely ignored. indeed in many family law textbooks and family law courses, the topic of divorce is barely discussed. it is viewed as an administrative process with little legal content to it. the few cases which do come before the courts are given similar scant treatment, even when they draw attention to the fundamental problems in the current law, a law which is both outdated and confusing. this is not a satisfactory state of affairs. it is time that the long overdue reform of divorce law be (is) placed back on the parliamentary agenda. with the advent of marriage for civil partners expected in the near future, changes will have to be made to divorce law to accommodate these couples. for instance, there is no concept of adultery in the law relating to the dissolution of civil partnerships. it would therefore be an appropriate moment for a 1 see eg n shepherd “ending the blame game: getting no fault divorce back on the agenda” (2009) family law 122; e hasson “setting a standard or reflecting reality” (2003) intl j law policy and the family 338; g langdon-down “divorce law reform: doing the splits” (2006) law society gazette 20. divorce in england and wales: time for reform 22 complete overhaul of divorce law to be undertaken, rather than a piecemeal tinkering with it, to resolve such an anomaly. the current law of divorce in 2003, wilson j maintained that: “in england and wales divorce is not yet simply available upon joint demand immediately following a separation” 2 theoretically, this statement may be correct but, in the critique of the current law below, it will be seen that many spouses are able to obtain a divorce because they both wish it, although they may have to go through a series of complex, oppressive and, at times, bizarre and illogical hoops to achieve their aim. the one year rule no matter how distressed a spouse is at the state of the marriage, no petition for divorce can be brought before one year has elapsed from the date of the marriage. 3 this provision is based on the belief that marriage is an important institution which provides stability for the couple, their children, and for society. to allow an early exit, it is argued, would be to trivialise and undermine the institution. there are no exceptions to the rule even where a spouse is violent or turns out to be a criminal, or a fraudster with respect to an essential aspect of the relationship. there are circumstances where the rule can produce serious hardship although, of course, there is nothing to prevent a spouse from moving out of the family home and living separately until divorce becomes possible. one ground for divorce five facts as most readers will be aware, there is only one ground for obtaining a divorce; s 1(1) of the matrimonial causes act 1973 (the 1973 act) provides that the relationship must have broken down irretrievably. however, it is insufficient to simply declare that this is so. the breakdown must be evidenced by one of the five facts in s 1(2) of the 1973 act. even where it is self-evident that the relationship has no future, the petitioner must still 2 bhaiji v chauhun [2003] 2 flr 485, at para [20]. 3 matrimonial causes act 1973, s 3(1). the denning law journal 23 establish one of the relevant facts. this has led to a common, but understandable, erroneous belief that the facts are the grounds for divorce. most partners will be able to find at least one of the facts, even if it may require a little imagination, some ingenuity, a significant expenditure of emotional energy, and, in some cases, money. there is no necessity to give any real evidence of the fact; a mere statement of its existence is sufficient. because the divorce process is primarily an administrative one, it rarely involves the spouses in a court appearance. the forms are filled in by the petitioner 4 or her lawyer and sent to the court where a judge will check them before agreeing to the grant of a decree. this means that it will be exceptional for a judge to challenge a petition unless fraud is suspected. 5 of course, it is always possible, but also most unusual, for a respondent spouse, to challenge the petitioner‟s statement and defend her request for a divorce. if he decides to do so, he is highly unlikely to succeed. the two decisions on defended divorce, discussed below illustrate this. rather illogically, the fact on which the petitioner relies need not be the cause of the breakdown of the relationship. in many cases, the fact may well be the symptom of the breakdown rather than its cause. where a petitioner is able to establish the existence of one of the relevant facts, it is still open, although admittedly unlikely, for a judge to decide that the marriage remains viable and decline to grant the order requested. if a respondent spouse defends the petition the judge will, inevitably, have to decide on both the reality of the fact pleaded and the viability of the relationship. divorce in england and wales is primarily a fault-based process. three of the five facts require the petitioner to accuse her spouse of a „matrimonial offence‟. this perpetuates the idea that relationship breakdown involves a perpetrator of harm and a victim. in reality, when relationships reach the point of breakdown, it is commonly acknowledged that it is, more often than not, the fault of both spouses or of neither. many relationships simply reach the end of their natural life. it is important to note that two of the three fault-based facts make it possible for a rapid exit to be made from the marriage as little as three months in many cases. for those who view speed as an essential, there may be 4 throughout this article, to make for easier reading, the petitioner is referred to using the female gender and the respondent using the male gender; this approach also reflects the fact that more petitioners are women. 5 see eg bhaji v chauhan above n 3, where the judge became aware that the marriages had been entered into for immigration reasons and once visas had been obtained, petitions were brought to end the marriages. divorce in england and wales: time for reform 24 a temptation to plead one of these facts even though it may necessitate collusion with a respondent spouse or, maybe, even to indulge in a little judicious exaggeration. occasionally spouses have made totally bogus claims. 6 adultery the first of the fault-based facts is adultery; s 1(2)(a) of the 1973 act requires that the respondent spouse has committed adultery and that the petitioner finds it intolerable to live with him. the petitioner need not give specific details of the adultery or give the name of the adulterer. gone are the days of camera bearing private detectives following maids, delivering breakfast to the hotel room, to capture images of adulterous couples in bed. the petitioner relying on adultery has an additional task, imposed by case law, of stating that it is intolerable to live with the respondent for some reason other than the adultery. 7 this is an unfortunate and almost certainly incorrect gloss on the statute. if the spouses live together for longer than six months following the adultery, the petitioner will be deemed not to find it intolerable to live with the respondent. 8 she will be unable to rely on the adultery fact unless, of course, the adultery is repeated. if marriage between same-sex partners is legalised, the adultery fact would almost certainly have to be abandoned. it is hardly possible that a differential standard could be applied to heterosexual and same-sex spouses. behaviour the second fault-based fact is behaviour; s 1(2)(b) of the 1973 act, provides that the respondent must have behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. it is the fact which is most commonly relied on to prove irretrievable breakdown of the relationship. past decisions have emphasised that it is not the respondent‟s behaviour which must be unreasonable but, rather, the expectation that the petitioner should continue to live with the respondent‟s behaviour. 9 in spite of 6 ibid, at para 20 where the judge said: “this unusual hearing has exposed a concerted attempt to bypass the requirements of the present law and by the use of bogus allegations of behaviour to secure the immediate dissolution of marriages which have outlived their perceived usefulness” 7 cleary v cleary [1974] 1 wlr 73. 8 matrimonial causes act 1973, s 2(1)(2). 9 see eg bannister v bannister (1980) fam law 10. the denning law journal 25 this, the second of the five facts is referred to regularly as „unreasonable behaviour‟. 10 in livingstone-stallard v livingstone-stallard, 11 dunn lj suggested a test which was both subjective and objective. he maintained that the correct question to ask was “… would any right-thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the characters and personalities of the parties?” 12 more recently this fact has been subverted to include behaviour on the part of the respondent if it can be seen as provoked by the petitioner. for example, in 2002 in an unreported decision, a 75 year old husband petitioned for divorce because his wife of 50 years reacted publicly and violently towards the news that he had been living a double life for more than ten years. he had a long-term mistress and child with whom he lived for part of the week and returned home to his wife at weekends. the wife, on discovering the affair, made malicious phone calls, contacted the press and spread the word noisily, and widely, about her husband‟s behaviour. however, she did not want the marriage to end at this late stage in her life she was aged seventy-four and was not prepared to petition for divorce herself. the judge granted the husband a decree and said: “i am satisfied that the respondent has been so overwhelmed by her hurt and outrage at the deception that she went over on to the attack in order to destroy the petitioner and his second family unit. however, no legitimate anger can reasonably lead to the conduct of the kind committed by the respondent. i am completely satisfied that the respondent‟s attitude was one of aggressive retaliation. the husband ruptured the marriage but the respondent, by her behaviour and attitude, caused the irretrievable breakdown. the question i have to ask myself is: would any right-thinking person come to the conclusion that this wife has behaved in such a way that this husband cannot be reasonably expected to live with her. to me the answer is undoubtedly yes. apart from her family and close friends, there was no need for anyone to know about the family tragedy and certainly there was no 10 see savva v savva [2012] ewca civ 579, at para 1. 11 [1974] fam law 47. 12 ibid, at 54. divorce in england and wales: time for reform 26 need for her to spread the news . . . unless her aim was to wound and humiliate.” 13 it was a hard decision in both its practical and emotional effect on the wife and once again demonstrates that two of the three fault-based facts do, in effect, provide for divorce on demand. if the petitioner lives with the respondent for longer than six months, she will not be able to rely on the behaviour complained of in any future petition. she will be deemed to have shown that she is able to tolerate her spouse‟s conduct. 14 it is readily understandable why the behaviour fact is so frequently relied on in petitions. the nature of living in an intimate relationship is almost certain to give rise to behaviour which is irritating. it is arguable that the majority of partners could point to examples of behaviour which they could not reasonably be expected to tolerate. the possibility of relying on this fact, and achieving a rapid exit from the marriage, may lead encourage spouses to search through the dirty linen basket and parade one or more of its contents which is hardly likely to permit a civilised end to a relationship, or encourage cooperation in the upbringing of their children. desertion the third of the fault-based facts is desertion. petitions based on this fact are rare; the provision is positively byzantine. section 1(2)(c) of the 1973 act provides that the petitioner must be able to prove that the respondent has not lived in the same household as her for two years, has no justifiable reason for living apart, and had the intention to remain permanently apart from him or her throughout that period. a spouse may be found to have deserted the petitioner even if they both continue to live under the same roof but separately not an easy task to achieve in a small house and most difficult to prove. 15 there can be no desertion if the petitioner‟s conduct has in some way caused the respondent‟s departure or she has agreed to his departure. where the respondent volunteers to return to the petitioner before the two years has elapsed and she refuses, without good reason, to resume living together, she will be held to be in desertion. it is not difficult to understand why a petitioner may feel unable to take back her deserting spouse. trust may well have been lost but her refusal to comply with the respondent‟s request will mean that she can no longer end 13 the times, 1 september, 2000. 14 matrimonial causes act 1973, s 2(3). 15 see le brocq v le brocq [1964] 1 wlr 1085. the denning law journal 27 the relationship in reliance on her husband‟s original desertion. she may find that her husband will be able to reverse positions with her, become the petitioner and rely on his wife‟s desertion to obtain a divorce. the deserting respondent does not have to communicate his intention to desert to the petitioner. this gives the petitioner the difficult task of discovering at what point the respondent who left without an intention to desert subsequently acquired one. where a respondent who had the intention to desert but prior to the elapse of the two year period becomes mentally incapable of continuing with that intention, at the end of the two year period, he may be deemed to have held the intention for the requisite period of time. 16 it may be the only way in which a petitioner can be helped but such deeming may seem a little unreal to many spouses who do not have familiarity with the jesuitical ability of lawyers. if the deserting spouse returns and is accepted back by the petitioner for a period longer than six months, the desertion is deemed to have ended. if the respondent returns for less than six months, the petitioner may still rely on the desertion but the period of resumed cohabitation does not count towards the requisite two year period. 17 the fault-free facts those spouses who wish to divorce but believe that they live in fault free relationships, or who do not wish to maintain that they are victims of a matrimonial offence, have two other options open to them: living apart for two years with an agreement to end the relationship or living apart for five years without such an agreement. two years apart and agreement section 1(2)(d) of the 1973 act provides that a petition for divorce may be brought if the petitioner and the respondent have lived apart for two years and they both consent to divorce at the end of that period. this fact provides for a non-acrimonious and private end to the marriage. all the royal divorces during the latter part of the 20 th century were based on this fact. as with desertion, the parties may live under the same roof during the two-year period but they must conduct separate households. 18 this is obviously easier to achieve in a royal residence than in the homes of most 16 matrimonial causes act 1973, s 2(4). 17 ibid, s 2(5). 18 ibid, s 2(6). divorce in england and wales: time for reform 28 potential divorcees. the case law has tended not to take into account the realities of everyday life. 19 during times of economic recession, and where the couple have children, it will often be difficult to maintain two separate households. it may be essential and more civilised to share the practical every day arrangements such as cooking, eating and laundry. in every other way the spouses may well be living apart. the petitioner must state the date on which she and the respondent began living apart and give the reason for doing so. it is not necessary to show that there was a matrimonial fault of some sort which precipitated that decision. the petitioner must also state the circumstances in which she concluded that the marriage was at an end. the courts have rather controversially imported an additional requirement into s 1(2)(d) of the 1973 act. in santos v santos 20 for example, it was held that the two year period only commences when one spouse recognises that the marriage is at an end although it is not necessary to communicate that realisation to the other spouse. such an approach could mean hardship for those spouses who separate on a trial basis and do not discover that the marriage is at an end until the two years have elapsed. it fails to recognise the imprecise nature of human relationships. partners who have decided to live apart may continue to harbour a faint hope that their relationship may not be finally over. often it is only when one spouse wishes to enter into a new legal relationship that there is an acceptance that the marriage is truly at an end. although the decision in santos has not been strictly adhered to, the spouses must at least form an intention to live apart at the beginning of the two-year period and continue to live apart until they give their consent to the grant of the decree at the end of the two years. if the spouses move back to live with each other for more than six months, they must recommence the two year period of living apart afresh. if they resume living together for less than six months and wish to proceed with the divorce, the time together will not count towards the requisite two years. 21 in spite of some of the uncertainties of what it actually means to live apart for two years, it would seem that this is the most civilised of all the ways of ending a relationship. it gives the spouses time to consider whether they really do wish to end their marriage. it allows them to plan for their future and that of any children of the relationship. 19 see eg mouncer v mouncer [1972] 1 wlr 321, cf fuller v fuller [1973] 1 wlr 730. 20 [1972] fam 247. 21 matrimonial causes act 1973, s 2(5). the denning law journal 29 five years living apart petitioners who are unable to rely on any other fact have to rely on what is often referred to as the fact of last resort living apart for five years. 22 this fact is not, as has been suggested, 23 a casanova‟s charter for men wishing to divorce their innocent wives unilaterally. the majority of those who rely on this fact are women. the spouses may resume living together for a period of six months. if they remain together for longer, and the relationship subsequently breaks down, the five years must start afresh. if they live together and part before the six months has elapsed, they may not count the time spent together towards the requisite period of five years. 24 there is no requirement that the respondent must consent to the decree but he may attempt to prevent the divorce by pleading the defence of grave hardship. 25 this defence allows a respondent to claim that a decree will result in grave financial or other hardship to him and that it would in all the circumstances be wrong to grant the decree. the judge has a wide remit to take into account such matters as the conduct of both spouses, their interests and those of any children, or other persons concerned. grave hardship of both an emotional and a financial nature is almost inevitable on relationship breakdown but the type of hardship envisaged by the 1973 act is more than that. the hardship must flow from the divorce decree rather than the breakdown of the relationship. case law reveals how difficult it is to prove the relevant connection. the defence has been used primarily as a bargaining tool by respondents; they have threatened to plead the defence in return for a larger financial settlement. now that pension sharing is possible on divorce, the defence has been reduced significantly in importance. no respondent who has pleaded non-financial grave hardship has ever succeeded in preventing the grant of a decree. in banik v banik, 26 the court rejected the respondent‟s claim that her community would ostracise her and she would never be able to re-marry. it said that she would have had to: 22 ibid s 1(2)(e). 23 r deech “divorce and empirical studies” (1990) lqr 229; r deech “divorce a disaster (2009) family law 1049. 24 matrimonial causes act 1973, s 2(6). 25 ibid s 5. 26 [1973] 3 all er 45. divorce in england and wales: time for reform 30 “...satisfy the court that it would be a real hardship to her if the marriage was dissolved, not just something which made her unhappy or distressed her, or which she regarded personally as immoral or contrary to the rules of her community.” 27 even if a respondent is able to clear the difficult hurdle of proving grave hardship, the court retains a discretion whether or not to grant the decree. it has to balance out the hardship to the respondent if the decree were to be granted against the injustice to the petitioner if it were to be refused. 28 the decision in julian v julian 29 is one of the rare cases in which the court declined to grant a decree. it held that it would not be wrong to prevent the petitioner, who was unwell, from the possibility of remarrying. his wife, who was also ill, was found to be more in need of protection from financial hardship which would be the consequence of the grant of the decree. reconciliation the current legislation pays lip service to the possibility of rescuing relationships. section 6(1) of the 1973 act 30 provides that solicitors must state whether they have discussed reconciliation with a client who has sought divorce advice and whether she has been given information about agencies which may be able to help. it is unknown how many relationships have been saved by these provisions but it is assumed very few. the provisions have been criticised as being ineffectual and paternalistic. defended petitions although few respondents attempt to defend a petition, the ones who have tried to do so have been most unsuccessful. if one partner wants a decree of divorce, no matter how desperate a respondent is to save the marriage, defending the petition is not going to give him what he wants. rather, the very act of defending the petition is likely to be so acrimonious that it will actually ensure that the decree will be granted. two important decisions illustrate the likely outcome of defending a divorce. 27 ibid at para 50. 28 matrimonial causes act, s 5(1)(2)(b); see brickell v brickell [1974] fam 31. 29 [1972] 116 sj 763. 30 matrimonial causes act 1973, s 6, family procedure rules, rule 7.6. the denning law journal 31 in hadjimilitis (tsavliris) v tsavliris 31 the respondent spouse was a wealthy ship-owner who decided to defend his wife‟s petition for divorce; she had relied on the behaviour fact. the court found that he had treated his wife with criticism and low warmth, controlling and undermining behaviour, public humiliation and lack of respect, insight, sensitivity, understanding and sympathy. as a consequence, she had become depressed and stressed. her husband‟s reaction to this was to demand that she pull herself together. she had no financial resources of her own and her husband insisted that she ask him or his secretary for money whenever she needed it. he refused to possess a key to the family home so that at whatever time he arrived home, his wife would have to be available to let him in. this allowed him to control her activities and ensure he always knew where she was when he was out of the house. in defending the petition the husband accused his wife of having been unfaithful to him. he claimed that she had merely married him for financial reasons; had not supported him either emotionally or practically; was a bad mother, and a drug taker. the court held that such accusations merely confirmed the wife‟s statements about her husband‟s behaviour. they so undermined the relationship that no one could be expected to live with a husband who made such allegations. the wife was granted her decree. in savva v savva 32 the husband, a chartered surveyor aged sixty four, attempted to prevent his wife, a biology teacher aged fifty eight, from divorcing him. the couple had been married for thirty four years. the wife had petitioned for a decree of divorce in reliance on the behaviour fact. mr savva maintained that his wife had acted angrily and hastily in petitioning for divorce. he maintained that he had not exhibited unreasonable behaviour and that his marriage had only temporarily broken down. he claimed that his wife had suffered a breakdown and was confused, otherwise she would not have petitioned for divorce or criticised his behaviour. he believed that the court should have insisted on psychiatric evidence to show how disturbed she was. furthermore, he suggested that her instability showed that she lacked the capacity to instruct a solicitor. he claimed there were practical reasons why he and his wife did not share a bedroom. he tried to explain that the house was in a mess and his wife needed her own space. mr savva, argued that the divorce law in england and wales did not do enough to encourage couples to remain married; uncorroborated evidence about spousal behaviour was accepted by the court. he urged that a one-year 31 [2003] 1 flr 81. 32 [2012] ewca civ 579. divorce in england and wales: time for reform 32 cooling off period should be introduced to prevent marriages being brought to a rapid end without serious thought (as partly envisaged by part ii of the family law act 1996), that way, he maintained, a lot of angry women would be forced to let their anger abate and consider calmly the future of their marriage and their family before resorting to discussions with solicitors. the recorder, judge cudby rejected mr savva‟s view of the marriage. rather, she found that his wife struck her as upright, honest and, not unsurprisingly fed up with all that had been going on in her marriage. she did not perceive her as in any way psychiatrically unwell or in need of any assistance. judge cudby expressed the view that it was always hard when one party believes that the marriage has ended and the other does not. she commented that it was sad that mr savva could not accept that his long-term marriage had broken down and was seeking excuses rather than facing the truth. nevertheless, she granted mrs savva a decree of divorce. mr savva sought leave to appeal the decision. in the court of appeal, mr savva argued that judge cudby should not have made findings about his and his wife‟s emotional and mental states without the benefit of independent evidence from disinterested parties. he felt his wife was unable to give reliable evidence herself about her mental state and about the events of the marriage. he also maintained that the recorder had wrongly concluded that the marriage had broken down irretrievably but at the same time had questioned the accuracy of the wife‟s evidence on the length of time she and her husband had occupied separate bedrooms. the wife had maintained that this state of affairs had gone on for at least eight years whereas the husband maintained it was only for three years. the court of appeal confirmed the judge‟s approach and said that it mattered not whether the separate occupation of bedrooms had endured for eight or three years, it was clearly symptomatic of the irretrievable breakdown of the relationship. the husband finally maintained that his wife had not obtained a certificate of reconciliation. he thought incorrectly that this document placed an obligation on his wife‟s solicitor to point her in the direction of counselling in an attempt to save the marriage. lady black corrected this view and explained that the solicitor is merely required to state that he has mentioned the possibility of reconciliation to his client. lady black pointed out that it was unlikely that a certificate had not been obtained but, in any event, its absence would not prevent a petition from being granted once the judge had found that the marriage was no longer viable. she refused to grant the husband leave to appeal the grant of the decree. the denning law journal 33 reform of the law a previous attempt to reform family law act 1996 part ii after long debate, parliament finally enacted part ii of the family law act 1996 which introduced the concept of „no fault divorces‟. spouses were to attend information meetings at which they would learn about, inter alia, reconciliation, marriage counselling, mediation, the law and lawyers, the importance of children‟s welfare, the division of financial assets. pilot schemes of such meetings took place but they were not successful. in june 1999, the lord chancellor decided that the preliminary results of the schemes were so disappointing and did not achieve the aim of saving marriages or persuading spouses to mediate. the information meetings were viewed as too rigidly defined; spouses wanted information appropriate to their own specific circumstances. the meetings came too late; marriages were already in a major state of decline by the time the spouses attended them. there was also a problem in finding sufficient numbers of experienced counselors and mediators. when the final evaluation reports became available, the lord chancellor announced in 2001 that the act would not be brought into force (except for s22 relating to relating to the funding of marriage support services, which had already been brought into force and would remain so) and that the government would invite parliament to repeal it once a suitable legislative opportunity arose. 33 the way forward it is abundantly clear that the current divorce law is confusing, misleading, outdated, and excessively legalistic. it is rare for anyone to be prevented from obtaining a decree but, for the most part, the law does not allow for a calm and civilised end to a relationship. this is particularly so where there is no obvious reason, or fault on the part of either partner, for its breakdown. reform is essential. 33 21 april 2010 hl deb 17 june 1999, http://www.dca.gov.uk/family/fla/flapt2.htm; b hale “the family law act 1996: dead duck or golden goose” in s cretney (ed) family law: essays for the new millennium (blackwell synergy, 2000). divorce in england and wales: time for reform 34 marriage reform in spite of the high divorce rate in england and wales, 34 marriage is still regarded by the majority of people as the gold standard for stable familial relationships. part of the government‟s determination to legalise same-sex marriage is based on this view. any attempts to reform the law relating to divorce must consider first the law relating to marriage. if marriage is an important institution for society as well as for the individual, it must not be trivialised or undermined. it is a relationship which should not be undertaken without serious thought. at the heart of divorce reform is the need consider whether the institution of marriage should be reformed, particularly prior to its inception. at present, it is not difficult to marry. one may do so without any understanding of the relationship contract to which the spouses are giving their agreement. they need to understand its legal consequences and responsibilities as well as the benefits given to them by the state for agreeing to undertaking those responsibilities (it must be acknowledged that many of the benefits are given merely for entering into marriage regardless of whether the responsibilities of the contract are fulfilled). it must be questioned how many of those who embark on marriage understand the precise nature of the contract. it is not written down in any positive form, rather, couples are left to discover it in piecemeal manner as they journey through their marriage. it is usually only when the relationship begins to experience difficulties that the spouses learn to their surprise what it is that they unknowingly agreed to (sic) during the marriage ceremony. suddenly, the intricacies of the law and its consequences for them become visible. many couples spend a considerable period of time often several years, planning their perfect wedding day; little is left to chance; expenditure is boundless. but how many of these couples give a similar amount of attention to the nature of the relationship into which they are entering? too often it is argued that it would be unrealistic to expect couples who are about to commit themselves to each other to contemplate the possibility of problems and the legal consequences of them. the proponents of this view believe that all couples are entitled to their romantic dreams. they should not have the magic of their special day ruined with negative thoughts; spouses will find out soon enough what marriage means. it would be better if it was compulsory for all couples to consider the consequences of the contract of marriage, and to do so prior to making a legal 34 in 2010 the divorce rate in england and wales increased by 5.7 per cent to 11.1 divorcing people per thousand married population, compared with 10.5 in 2009 (divorces in england and wales 2011 office of national statistics 2011). the denning law journal 35 commitment to each other. one possible way forward would be to demand that all couples should have to give notification to a registrar of marriages of their intention to marry at least three months before the ceremony. at the time of notification, they would be provided with written information explaining the serious legal implications and responsibilities of marriage, how to legally bring it to an end, should they wish to do so at some point in the future, and the consequences, including the financial ones, of such an action. two months prior to the wedding, the prospective spouses would each have to sign a separate legal document, witnessed by a lawyer, stating that they have read the information given to them and that they understand what it means to commit to each other in marriage. 35 these signed statements would be deposited with a registrar of marriages. divorce reform given the current high divorce rate, it would seem pointless to try to lower it by way of a difficult and complex divorce law. it is inevitable that some spouses will not want to remain married, and attempting to force them to do so is unrealistic. any law reform must reflect this. a way forward must be found which respects the importance of marriage as an institution and allows those who wish to exit it to do so responsibly, thoughtfully, and in a civilised non-confrontational manner, and not in thoughtless great haste. it is essential that any new divorce law must protect, in so far as possible, the couple, their children, and society as a whole, from the damaging effects of ending relationships. it must be acknowledged that damage-free divorce is probably impossible to achieve even if both spouses conclude at the same time that they wish to leave the relationship.. children are never happy at the prospect of their parents leaving each other even if they find it difficult to bear the marital disharmony which so often precedes the parental decision to part. for the majority of spouses, there are serious financial implications on divorce; their standard of living will be significantly lower than during the marriage. no ref necessary i have said that it is true for the majority of spouses-only the rich tend not to suffer a civilised divorce law should be time-based and only time-based ; there should be no other ground for divorce. a prescribed period of time should have to elapse between the decision by a spouse (or both spouses if they are in 35 it may be that those who wish to sign a pre-nuptial financial agreement could also be permitted to so at this stage and, thereby exempt themselves from the financial provisions imposed by the current law on spouses who divorce a law which is also in urgent need of reform. divorce in england and wales: time for reform 36 agreement) to leave the marriage and the grant of the divorce decree. it should not be less than one year and not more than two years; eighteen months would be an acceptable compromise. a spouse, or both spouses if in agreement, would have to sign a simple statement, indicating a wish to end the marriage, and deposit it with the registrar of marriages. there should be no requirement to state or prove that the marriage is no longer viable. it cannot be the task of the law to determine whether that is so. there would then follow a prescribed period of time, at the end of which a petition of divorce would be presented to a judge, accompanied by a statement of the couple‟s proposed resolution of their financial affairs and their arrangements for the future residence and financial support of any children of the marriage. the lapse of a period of time prior to the grant of a divorce would reflect the importance which the state and society attaches to marriage. it would give both spouses time to consider their relationship and either reconsider a decision to end it or begin to adapt to the possibility of, and plan for, a new future. the prescribed period would permit them to put in place arrangements for their children and organise their financial affairs. such a reform has the advantage that there would be no acrimonious accusations of fault or arguments about whether the marriage has broken down or not, there would simply be the requirement that at least one of the spouse wishes to leave the relationship. there is always the possibility that a couple, deliberately or otherwise, would not make the necessary financial arrangement, or decide on the future residence and financial support of the children, within the 18 month period. in such cases, the court would have to be involved and a further three month period would be given to the couple to resolve any outstanding matters. at the end of the three month period, the divorce would normally be granted whether or not the spouse‟s arrangements had been finalised. exceptionally, a judge might declare that a decree of divorce could not be given until a couple‟s affairs had been resolved satisfactorily. in normal circumstances, to allow the process to continue beyond two years would permit a spouse to deliberately sabotage the divorce as a bargaining tool to determine a child‟s residence or to gain a larger financial settlement. there will be critics who are certain to suggest that an eighteen month or two year waiting period is too long a time to wait for a divorce, particularly, if the spouses are forced to occupy the family home together until the financial arrangements have been resolved. whilst recognising that continuing to live together is not easy for a family on the point of break up, the reality is that already many spouses have to do precisely that. even those spouses who obtain a rapid divorce in reliance on the adultery or behaviour fact often have the denning law journal 37 to live together whilst they wait to sell the family home or find alternative accommodation. the advantage of divorce being dependent on the lapse of a period of time would ensure that all potential divorces would be treated equally. it would prevent people using the adultery or behaviour facts to obtain a decree precipitously and remarry rapidly before they have time to process the end of their previous marriage and make satisfactory arrangements with respect to the responsibilities they took on when they married. it would not, of course, prevent people from entering into a new non-marital relationship. a different group of critics is likely to claim that the proposal to simplify divorce, if enacted, would undermine marriage. it would allow people to leave the relationship merely because they wish to do so. the reality is that it is clear that the law already permits this although in a more convoluted and disingenuous manner and it is time to end this unsatisfactory state of affairs. 29 the denning law journal 2011 vol 23 pp 29-46 witness anonymity at the international criminal court: due process for defendants, witnesses or both? tim welch, huma haider, martin meenagh and yassin m'boge* the question of how far and in what way to extend protection to witnesses in trials has manifested itself in institutions as diverse as the european court of human rights (echr), the committee of the international covenant on civil and political rights (iccpr), the ad hoc criminal tribunals (international criminal tribunal for the former yugoslavia, international criminal tribunal for rwanda, the special court for sierra leone), and most recently the international criminal court (icc). this is not surprising; as david lusty has pointed out in his seminal analysis of the use of anonymous accusers, the question has arisen in almost every legal deliberative body for the past two thousand years. 1 the question poses a dilemma in the operation of the rule of law, since an accused has a well-established right to a fair trial. by almost any recorded standard, fairness is identical to the rights of due process, and those in turn have been elaborated in multiple fora. in the iccpr, the right to examine or have examined the witnesses against oneself and to obtain their attendance and examination is a „minimum guarantee‟. 2 article 6(3)(d) of the european convention on human rights defines as a „minimum right‟ the chance of an * tim welch (llb, llm dunelm) and huma haider (llb, llm, mba) worked in the prosecution section of the war crimes chamber, court of bosnia and herzegovina in 2007. tim is now a barrister (inner temple), a visiting lecturer on the llm in international criminal law and procedure at london south bank university, and a director of city law tutors in london; huma is a research fellow at the governance and social development resource centre, university of birmingham; martin meenagh (dphil, mst, ma oxon) is a barrister (middle temple), a lecturer and tutor based in london; finally, dr yassin m'boge phd (queen's university belfast), llm (nottingham), is a research fellow at the school of law, university college dublin. 1 d lusty “anonymous accusers: an historical and comparative analysis of secret witnesses in criminal trials” (2002) 24 sydney law review 361. 2 article 14 (3) iccpr. witness anonymity at the international criminal court 30 accused to examine or have examined the witnesses against him‟ on the same terms as those laid out in the iccpr. article 21 of the statute for the international criminal tribunal for the former yugoslavia (icty) incorporates this minimum guarantee. 3 so does that of the international criminal tribunal for rwanda (ictr), though it allows under rule 69 (a) of its procedures for the protection of the identity of a witness in „exceptional circumstances‟. 4 the rome statute of the international criminal court provides similarly for the rights of the accused in articles 67. 5 despite this impressive body of statutes and rules—and an equally impressive variety of cases which will be examined later in this article—the rights of the accused have frequently and extensively been qualified in international jurisprudence. this is because trials require witnesses. witnesses of massacres, serious and traumatic crimes, mass rapes, or against vast criminal conspiracies often cannot be expected to come forth into the open. by doing so, in many cases, they would place their own psychological or physical health at risk, and may endanger themselves or their families. witness protection has been a key concern of the international criminal system since the establishment of international criminal tribunals in the decade before the icc. the icty and ictr have incorporated in their statutes an explicit call for the protection of victims and witnesses, alongside respect for the rights of the accused. amongst the first decisions in prosecutor v tadić at the start of the yugoslav trials, the icty emphasised that the obligation to protect witnesses represented recognition of the challenges at the time of operating during a conflict, without a witness protection programme. 6 this necessitated the development of complex rules within the trial process. the icty subsequently established a witness protection programme, as did the other ad hoc tribunals. the icc also has a victims and witnesses unit (vwu) concerned with protection, in addition to its court statute and rules. the rome statute has the most extensive provision for the protection of victims and witnesses of all the international criminal tribunals. 7 the vwu has been characterised as one whose resources could be very significantly stretched and therefore fall under pressure should the work required of the 3 article 21(4)(e) statute of the international criminal tribunal for the former yugoslavia. 4 article 20, article 21 statute of the international criminal tribunal for rwanda, and rules of procedure and evidence 69 (a). 5 specifically, article 67(1)(e) of the rome statute of the icc. 6 prosecutor v tadic, decision on prosecution motion for protective measures for witnesses, it-94-i-t 10 august 1995 paras 26-27. 7 article 68, rome statute. the denning law journal 31 icc accelerate. 8 indeed, this pressure has resulted in a perceived tension between the unit and the office of the prosecutor of the icc, who in 2008 were „unable to agree on the extent of their respective responsibilities for witnesses‟. 9 in the face of this, the icc has adapted to what could be termed a „creative tension‟ within its founding rome statute regarding the rights and protections of the accused on the one hand and victims and witnesses on the other. specifically, article 64(2) specifies that „the trial chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses‟; article 67 outlines the rights of the accused and article 68 the protection of victims and witnesses. the icc has responded to this tension by considering the protection of witnesses through anonymity based on the circumstances before it in its expanding number of cases. this practice, as this article will show, can be considered at odds with other established international jurisprudence. at the time of writing, aspects of the protection of defendants and the question of the appropriate balance between the protection of the defendant, witness and victim, are in dispute between the english and welsh courts and the european court of human rights. 10 given that the international criminal court, unlike the ad hoc tribunals, is permanent, the way in which this question plays out in the icc is likely to be of even greater significance. this article will outline the protections offered to witnesses and victims by the icc and the rights of the accused within that body. it will then focus upon the extension of anonymity to witnesses, and shall place those aspects within the international jurisprudence of witness protection generally. the legacy of the icty and ictr before the icc came into existence in july 2002, a debate was ongoing on witness protection and the rights of the accused in the international criminal tribunals then in operation in yugoslavia, rwanda and sierra leone. in particular, article 21(2) and article 22, and rule 69(a) of the icty statute and rules of procedure, and icty decisions related to these provisions, attracted attention. article 21(2) rendered the accused‟s right to a fair trial subject to the need to protect witnesses and victims (article 22). this included 8 international bar association monitoring and outreach programme balancing rights: the international criminal court at a procedural crossroads (may 2008) para 11, p 12. 9 ibid p 20. 10 cf lord phillips in r v horncastle [2009] ewca crim 964 at para 14, commenting on exceptions to article 6(3)(d) of the european convention on human rights. witness anonymity at the international criminal court 32 „non-disclosure of the identity of a victim or witness who may be in danger or at risk until such person is brought under the protection of the tribunal‟ (rule 69(a)). these combined provisions thus qualified the right of an accused to a „fair‟ trial by allowing for anonymity for victims and witnesses. the justification offered in prosecutor v tadic, one of the first and most important cases, was that the icty had an „affirmative obligation‟ to protect victims and witnesses, but that this could be done in the context of trial rules as much as in witness protection programmes. 11 the principle of balancing interests thus began in the tribunals. 12 it was initially grounded, however, on the basis that such a balance operated in „exceptional circumstances‟ (in the tadic case, „in the context of the armed conflict and…terror and anguish‟ of the wars in former yugoslavia‟). 13 the trial chamber in tadic laid out five criteria to apply in determining the applicability of anonymity: "[f]irst and foremost, there must be real fear for the safety of the witness or her or his family [...]. secondly, the testimony of the particular witness must be important to the prosecutor's case [...]. thirdly, the trial chamber must be satisfied that there is no prima facie evidence that the witness is untrustworthy [...]. fourthly, the ineffectiveness or non-existence of a witness protection programme is another point that has been considered in domestic law and has a considerable bearing on any decision to grant anonymity in this case [...]. finally, any measures taken should be strictly necessary." 14 the international criminal tribunal in rwanda, operating a year after the war there nevertheless applied the reasoning of the icty „mechanically‟. 15 however, both courts were ultimately self-limiting, and, after tadic, the 11 above n 6. the reason for the emphasis on rules in tadic is perhaps explained by the way in which threats to the family of an alleged rape victim, leading to a reluctance of the victim to testify, caused charges to be withdrawn by the prosecutor. a discussion of the point can be found in m p scharf & a kang “errors and missteps; key lessons the iraqi special tribunal can learn from the icty, ictr and scsl” (2005) 38 cornell international law journal 911-937, and also at s suscinski witness protection (memorandum from case western reserve university school of law international war crimes research lab) to the office of the prosecutor 1 (nov. 2002), www.law.case.edu/war-crimes-research-portal. 12 n a affolder “tadic, the anonymous witness and the sources of international procedural law” (1997-1998) 19 michigan journal of international law 445. 13 see c chinkin “due process and witness anonymity” (1997) 91(1) the american journal of international law 75-9. 14 tadic, para 62-66. 15 j pozen “justice obscured: the non-disclosure of witnesses‟ identities in ictr trials” (2006) 38 nyuj int‟l l & pol 281 at 282 the denning law journal 33 icty did not extend unqualified anonymity again; nor did the granting of such anonymity become a feature of the ictr jurisprudence. 16 witness protection at the icc the icc represents a „step change‟ from the previous ad hoc and temporary tribunal system. it is instead a permanent international court at the hague, with expanded terms of reference and a founding statute which built upon but went beyond those of the ad hoc tribunals. as noted, it adopted the most extensive provision for the protection of victims and witnesses of all the international criminal tribunals. the growth of the icc‟s remit and activities has been striking. since july 2002, when the rome statute entered into force, the icc has conducted over twenty cases. at the time of writing, trials are ongoing or imminent in sudan, the democratic republic of the congo, the central african republic, uganda and kenya. in addition, the office of the prosecutor has reported „preliminary examinations‟ in afghanistan, colombia, côte d‟ivoire, georgia, guinea and palestine. 17 for such states, witness protection is not only a costly exercise, but also often one that requires deeper bilateral exchanges and discussions amongst states than is extant. 18 drawing in part upon the short history of international criminal tribunals, and upon its own jurisprudence, the icc has evolved its own methods of witness protection which seek to balance the minimum rights of the accused against what may be termed the duty to witnesses, or their „due process‟ rights. 19 colin t. mclaughlin has identified six ways in which witnesses can be legally protected by the court. 20 these methods correspond with the following articles from the rome statute and rules from the icc rules of procedure and evidence: 16 ibid at 291-294. the issue has, however, been discussed in other contexts since, see, for example, c mahony the justice sector afterthought; witness protection in africa (pretoria institute for security studies 2010) which addresses anonymity in kenya, uganda, sierra leone and south africa. 17 report of the international criminal court, note by the secretary-general to the general assembly of the united nations 19 august 2010 a/65/313. 18 ibid paras 4, 20 and 102. 19 a beltz “prosecuting rape in international criminal tribunals; the need to balance victim‟s rights with the due process rights of the accused” (2008) 23 st johns journal of legal commentary 167 at 183-4. 20 c t mcclaughlin “victim and witness measures of the international criminal court: a comparative analysis” (2007) 6 the law and practice of international courts and tribunals 189 at 190. witness anonymity at the international criminal court 34 (i) non-disclosure of identity, associated with rule 76(4) on pre-trial disclosure; (ii) protection from media and public photography, video and sketch, associated with rule 87 (3) on protection measures; (iii) protection from confrontation with the accused, also covered by rule 87(3). in particular, rule 87(3)(c) allows for testimony to be presented by electronic or other special means; and rule 87(3)(d) allows the use of a pseudonym; (iv) anonymity, while not directly discussed can be addressed by the same rules above and by articles 64(6)(e) and 68(1), which provide for the general protection of victims and witnesses; (v) reparations to victims, dealt with by article 75; and (vi) protection for victims of sexual assault, comprehensively covered by articles 68(1); article 68(2), which provides for in camera proceedings for victims of sexual assault; and article 43(6), which calls for staff within the vwu to be trained in dealing with trauma from sexual violence. these provisions are complemented by rule 88, which gives a chamber the power to order special measures on the basis that the witness or victim is a child, an elderly person, a victim of sexual violence, or simply traumatised. 21 going beyond protection of victims and witnesses, the icc is unique in its provision for the participation of victims in the trial process beyond the role of witness. this process is expected to contribute to expiation and recovery of victims. article 68(3) states: where the personal interests of the victims are affected, the court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. the icc in prosecutor v lubanga has permitted victims to remain anonymous in their new participatory roles. the accused thomas lubanga dyilo was charged with using children as soldiers in the democratic republic of congo (drc). the icc pre-trial chamber allowed anonymous participation at the confirmation hearing, citing the deterioration of the safety 21 h haider and t welch “the use of protective measures for victims and witnesses and the balance of competing interests under international law: the special case of war crimes trials” (2010) 28 l’observateur des nations unies special edition on “the place of the victim in international law” 37-62. the denning law journal 35 situation in certain areas of the drc which had undermined the ability to protect victims and witnesses living in these areas. 22 the defence opposed such anonymity claiming that the accused should know who is bringing legal proceedings against him and seeking compensation. 23 the chamber attempted to strike some kind of balance by stating that anonymity would be granted at the expense of limiting the extent of participation. it stressed that : "[t]he fundamental principle prohibiting anonymous accusations would be violated [if victims] were permitted to add any point of fact or any evidence at all to the prosecution's case file against thomas lubanga dyilo in the notification of charges document and the list of evidence". 24 the participation of anonymous victims was limited to accessing public documents and being present during public hearings. more controversially, their representatives were allowed to make opening and closing statements during the confirmation hearing and to intervene with the authorization of judge. 25 the chamber indicated that victims who consented to the disclosure of their identity to the defence could participate to a greater extent. the icc has thus set out a principle that anonymity should not be viewed favourably but has not ruled out its use in particular circumstances. 26 the icc trials in the drc have proven particularly illuminating, in part because they represent the first workings of the court, and they have therefore produced many judgments on modalities and procedures. for example, the trials of thomas lubanga dyilo, germain katanga, and mathieu ngudjolo chui alone led to requests from over 400 victims to participate in the proceedings or to give evidence. over 600 filings and decisions were 22 icc, situation in the democratic republic of the congo, decision on the arrangements for participation of victims a/0001/06, a/0002/06 and a/0003/06 at the confirmation hearing, 22 september 2006, icc-01/04-01/06-462, in jouet (m), "reconciling the conflict rights of victims and defendants at the international criminal court" (2007) 26(2) saint louis university public law review 264-265. 23 icc, situation in the democratic republic of the congo, defence observations relative to the proceedings and manner of participation of victims a/0001/06 to a/0003/06, 4 september 2006, icc-01/04-01/06-379, in jouet (m), ibid, 263. 24 icc, situation in the democratic republic of the congo, above n 24, 265. 25 icc, prosecutor v lubanga, decisions on the arrangement for participation of victims a/0001/06, a/0002/06 and a/0003/06 at the confirmation hearing, pre-trial chamber i, 2 september 2006, icc-01/04-01/062, cited in zappalà (s), "the rights of the victims v the rights of the accused" (2010) 8(1) jicj 150. 26 see zappalà (s), ibid, 151. witness anonymity at the international criminal court 36 delivered. many concerned anonymity. 27 of the rights of a victim or witness, those relating to anonymity have proven to be particularly complicated, and indeed controversial, especially once anonymity moves from victim participation to witness evidence. controversy initially arose because the icc appears to have moved away from previous practice in the icty concerning a hierarchy of rights. in the face of anonymity requests at the tribunal, the rights of the accused to due process were considered a priority. at the time of writing, the issue in the icc remains unresolved. 28 the rules of the icc make resolution difficult. anonymity of witnesses is neither specifically granted nor specifically forbidden by the rome statute or the icc rules of procedure and evidence. this has allowed since lubanga a creative tension to exist, wherein articles 64(6)(e) and 68(1) are balanced with article 67. creative tension allows for discretion, but it also allows for inconsistent judgments, and opens the icc to a kind of cultural blindness that may result in injustice. criticisms of the discretion have tended to fall into two camps. the first represents a strain of „procedural‟ criticism. writing specifically about criminal prosecution and sexual violence, anne-marie de brouwer, for example, has suggested that the icc should extend discussion of anonymity to defence advocates, and that it should draw on national traditions and the characteristics and circumstances of victims in general in making its decisions. 29 the second is a line of „substantive‟ or „culturally aware‟ criticism that draws upon the unfolding of the idea of anonymity as witness and victim protection in international jurisprudence generally. critics have argued that anonymity cannot be reconciled with the right to a fair trial. 30 some have focused on the need to avoid blanket amnesty across tribunals. joanna pozen, for example, argues that minimum rights should be placed in context and „tailored‟. 31 in making specific recommendations for the icc, pozen suggests that anonymity should be factored through four filters. 32 one is the existence 27 international bar association monitoring and outreach programme, balancing rights: the international criminal court at a procedural crossroads may 2008 9. 28 w schabas “article 67 rights of the accused” in triffterer (ed) commentary on the rome statute of the international criminal court (1999) 845-868, 867. 29 a de brouwer supranational criminal prosecution of sexual violence; the icc and the practice of the icty and ictr, (2005) 252-254. 30 a beltz “prosecuting rape in international criminal tribunals: the need to balance victim's rights with the due process rights of the accused” (2008) 23 st john's journal of legal commentary 190. 31 above n 8. 32 pozen, “justice obscured…” above n 15, at 321-22. the denning law journal 37 of any ongoing conflict or war, and the existence of any viable witness protection programme. a second is the extent of any threat of bodily harm to witnesses. a third is the cultural issues and practices regarding identities of witnesses. a fourth relates to the cultural traditions that may influence the importance of cross-examination (eg conflating hearsay with firsthand experiences in rwanda) and thus the acceptance of anonymity. amanda beltz suggests that guidelines and a balancing test that considers both due process for the accused and protection of witnesses can ensure that witness anonymity is reserved for the „most egregious of cases‟. these are situations where a victim would be placed in „significant peril‟ in the absence of such protection. 33 the icc is a young institution. despite its unique mandate, it may be that the court can gain from an appreciation of other systems of witness protection, in other regimes. it is to those that we now turn. international legal standards international conventions (i) the european convention on human rights article 6(3) echr provides that: “everyone charged with a criminal offence has the following minimum rights: (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him…” 34 as with the iccpr, the right to confront witnesses under the echr is an important and indeed „minimum right‟. the significance of which was made clear by the strasbourg court in kostovski v netherlands 35 which observed that: “if the defence is unaware of the identity of the person it seeks to question, it may be deprived of the very particulars enabling it to demonstrate that he or she is prejudiced, hostile or unreliable. testimony or other declarations inculpating an accused may well be 33 beltz, above n 33 at 200. 34 article 6(3)(d) european convention on human rights. 35 kostovski v netherlands (1990) 12 ehrr 434. witness anonymity at the international criminal court 38 designedly untruthful or simply erroneous and the defence will scarcely be able to bring this to light if it lacks the information permitting it to test the author's reliability or cast doubt on his credibility. the dangers inherent in such a situation are obvious” 36 nevertheless, unlike the human rights committee, the strasbourg court has recognised that there are exceptions. in a number of cases the court has ruled that the constituent rights in article 6 are not in themselves absolute. 37 the court has accepted the need to strike a balance between competing interests of victims and witnesses and the accused. where restrictive measures are to be applied, they must be „strictly necessary‟ to be permissible under article 6. 38 the application of such exceptions, however, has been unsystematic. the law commission of england and wales has observed that the strasbourg jurisprudence is “difficult to predict with confidence” 39 . nevertheless a review of the strasbourg case law shows that the court has placed weight on the existence of counterbalancing measures which seek to ensure a fair trial. it will ultimately find a violation of article 6(3)(d) though based on the extent to which a conviction is based on the evidence of anonymous witnesses. counterbalancing in various cases the strasbourg court has placed importance on counterbalancing measures. these are varied but include the opportunity of the defence and/or trial judge/magistrate to put questions to witnesses even if by proxy through a police officer. 40 however the extent to which counterbalancing measures will prevent a violation of article 6(3)(d) is unclear. in finding a violation of article 6(3)(d) the court in kostovski 41 placed weight on the lack of counterbalancing and in van mechelen v 36 ibid at para 42. 37 see for example edwards v united kingdom (1992) 15 ehrr 417, paras 33-34; miailhe v france (no 2) (1996) 23 ehrr 491, para 43; rowe and davis v united kingdom (2000) 30 ehrr 1, para 59. adolf v austria (1982) 4 ehrr 313, 324-325, para 36, where the court, citing guzzardi v italy (1980) 3 ehrr 333, 361, para 88, and x v united kingdom (1981) 4 ehrr 188, 202, para 41; salabiaku v france (1988) 13 ehrr 379. 38 ps v germany (2003) 36 e.h.r.r. 61; [2002] criminal law review 312. 39 law commission no.245, hearsay and related matters 1997 (report no 245); available at http://www.lawcom.gov.uk/docs/lc245.pdf at para 5.1. 40 sn v sweden (2004) 39. 41 above n 20. http://www.lawcom.gov.uk/docs/lc245.pdf the denning law journal 39 netherlands 42 the court observed that “article 6(1) taken together with article 6(3)(d) requires that the handicaps under which the defence labours be sufficiently counterbalanced by the procedures followed by the judicial authorities.” 43 in kok v netherlands 44 the court observed that: “in assessing whether the procedures involved in the questioning of the anonymous witness were sufficient to counterbalance the difficulties caused to the defence due weight must be given to the above conclusion that the anonymous testimony was not in any respect decisive for the conviction of the applicant.” similar statements have been made in visser v netherlands 45 and in lucà v italy. 46 in doorson v netherlands 47 it was held that “even when ‘counterbalancing‟ procedures are found to compensate sufficiently the handicaps under which the defence labours, a conviction should not be based either solely or to a decisive extent on anonymous statements”. 48 this position is supported in the most recent strasbourg ruling on article 6(3)(d) of alkhawaja and tahery v united kingdom. 49 here the court observed that: “while it is true that the court has often examined whether the procedures followed in the domestic courts were such as to counterbalance the difficulties caused to the defence, this has been principally in cases of anonymous witnesses whose evidence has not been regarded as decisive and who have been subjected to an examination in some form or other.” 50 arguably this settles the issue and counterbalancing measures will not prevent a violation, even, if as doak and huxley-binns point out “a plethora of counterbalancing measures has been put in place” 51 . the real issue therefore is the extent to which a conviction is based on the evidence of anonymous witnesses. 42 van mechelen v netherlands (1998) 25 e.h.r.r. 647. 43 ibid at para 54. 44 kok v the netherlands (application no 43149/98). 45 visser v the netherlands at paras 45-46. 46 luca v italy (2003) 36 ehrr 46 at para 40. 47 doorson v netherlands (1996) 22 e.h.r.r. 330. 48 ibid at para 76. 49 al-khawaja and tahery v united kingdom [2009] echr 26766/05 50 ibid at para 76. 51 j doak and r huxley-binns “anonymous witnesses in england and wales: charting a course from strasbourg?” (2009) 73(6) journal of criminal law 508. witness anonymity at the international criminal court 40 solely or to a decisive extent the strasbourg court will evaluate the weight attached to evidence from anonymous witnesses. the most recent decision of al-khawaja and tahery 52 has made clear that where a conviction is based solely or to a decisive extent on the evidence of anonymous witnesses, a violation will be found. a review of the strasbourg jurisprudence taken as a whole however, reveals that there is little consistency on this issue. in windsch v austria 53 the court found a violation of article 6 where the applicant‟s conviction was based „to a large extent‟ 54 on statements made by anonymous witnesses to the police. here the court observed that “the right to a fair administration of justice hold so prominent in democratic society that it cannot be sacrificed.” 55 in unterpertinger v austria 56 the court found a violation of article 6(3) where the applicant was convicted „mainly‟ on statements of witnesses who did not attend court. this decision is difficult to reconcile with the later ruling in artner v austria: 57 in both cases there were absent witnesses with corroborating medical evidence, but in artner no violation was found. three dissenting judges in artner viewed the cases as indistinguishable. 58 the term solely or to a decisive extent appears to have been first used in doorson 59 and then referred to in luca 60 where the court held that “where a conviction is based solely or to a decisive extent 61 on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by art.6.” 62 similar dicta can also be found in the kostovski 63 decision. 52 above n 34. 53 windisch v austria (1991) 13 e.h.r.r. 281. 54 ibid at para 31. 55 ibid at para 30. 56 unterpertinger v austria (1991) 13 e.h.r.r. 175. 57 artner v austria (1992) series a no.342. 58 ibid. the decision was based on a five to four vote and provoked a strong dissent. see joint dissenting opinion of judges walsh, macdonald and palm who held that without the use of the statements no conviction could have been obtained. 59 see r v horncastle [2009] ewca crim 964 at para 44. 60 above n 31. 61 emphasis added. 62 above n 31 at h 8 (d). 63 above n 20 at para 44. the denning law journal 41 it is confusing though that while the words „to a large extent‟ and „mainly‟ were used in windsch 64 and unterpertinger 65 , luca 66 and kostovski 67 use „solely or to a decisive degree‟. however, in ludi v switzerland 68 it was enough that the evidence „played a part‟ in the conviction. 69 in krasniki v czech republic 70 a conviction based solely on the evidence of anonymous witnesses was not considered unsafe, but the court held that the need for anonymity must be clearly established. nevertheless in al-khawaja and tahery 71 the court found a violation where the applicant‟s convictions were based on the hearsay evidence of witnesses unable to testify at trial. the court found that article 6(3)(d) “in principle required that all evidence had to be produced in the presence of the accused at a public hearing with a view to adversarial argument.” 72 luca was referred to and the solely/decisive rule maintained. there is academic opinion arguing that al-khawaja and tahery leaves the strasbourg position on anonymous witnesses “relatively clear”. 73 however the united kingdom government has referred the decision to the grand chamber at strasbourg and the uk supreme court has „squared up‟ to strasbourg 74 on the issue in r v horncastle. 75 here lord phillips was highly critical of the strasbourg court‟s approach to making exceptions to the article 6(3)(d) principle which he observed “has resulted in a jurisprudence that lacks clarity”. 76 questions have also been raised in respect of the meaning of decisive. in van mechelen judge van dijk argued, dissenting, that the solely or decisive extent test “is difficult to apply, because if the testimony of anonymous witnesses is used by the court as part of the evidence, that will always be because the court considers it a “decisive” part of that evidence, making the proof complete or at least sufficient.” 77 this view is shared by lord phillips who in horncastle argued that a strict adherence to the solely/decisive test 64 windisch v austria (1991) 13 e.h.r.r. 281. 65 above n 41. 66 luca v italy (2003) 36 ehrr 46. 67 above n 20 at para 44. 68 ludi v switzerland (1993) 15 e.h.r.r. 173. 69 w o‟brian “the right of confrontation: us and european perspectives” (2005) 121 law quarterly rev 481. 70 krasniki v czech republic (application no. 51277/99). 71 above n 34. 72 ibid at para h3. 73 j doak and r huxley-binns r above n 51. 74 see j r spencer “squaring up to strasbourg: horncastle in the supreme court” archbold review 2010. 75 r v horncastle [2009] ewca crim 964. 76 ibid at para 14. 77 above n 27 at para 88. witness anonymity at the international criminal court 42 could result in injustice: “it will in some cases result in the acquittal, or failure to prosecute, defendants where there is cogent evidence of their guilt. this will be to the detriment of their victims and will result in defendants being left free to add to the number of those victims.” 78 it would seem on balance that the solely/decisive test is the current strasbourg position. but the law is far from being settled. at the time of writing 79 the al-khawaja and tahery case is days away from being heard by the grand chamber and the problems with the test remain. rights of witnesses/victims an important issue, to which the strasbourg authorities will have regard when assessing the permissibility of witness anonymity, is the convention rights of the witnesses themselves. 80 articles 2 and 8 echr mirror articles 6 and 17 iccpr providing protection for the right to life 81 and for private and family life. 82 in doorson the court found there was sufficient reason to maintain the anonymity of drug addicts giving evidence against drug dealers and reasoned that “drug dealers frequently resorted to threats and actual violence against persons who gave evidence against them”. 83 significantly the court observed that: “it is true that article 6 does not explicitly require the interests of witnesses in general, and those of victims called upon to testify in particular, to be taken into consideration. however, their life, liberty or security of person may be at stake, as may interests coming generally within the ambit of article 8 of the convention. such interests of witnesses and victims are in principle protected by other, substantive provisions of the convention, which imply that contracting states should organise their criminal proceedings in such a way that those interests are not unjustifiably imperilled. against this background, principles of fair trial also require that in appropriate 78 above n 60 at para 105. 79 al-khawaja and tahery v united kingdom (nos. 26766/05 and 22228/06). 80 article 2 echr provides “everyone's right to life shall be protected by law. no one shall be deprived of his life…” and article 8 echr provides “everyone has the right to respect for his private and family life, his home and his correspondence.” 81 article 2(1) “everyone's right to life shall be protected by law...” 82 article 8(1) “everyone has the right to respect for his private and family life, his home and his correspondence...” 83 above n 32 at para 71. the denning law journal 43 cases the interests of the defence are balanced against those of witnesses or victims called upon to testify.” 84 in the later case of van mechelen the court recognised that there can be special categories of witnesses and the “balancing of the interests of the defence against arguments in favour of maintaining the anonymity of the witnesses raises special problems if the witnesses in question are members of the police force of the state.” 85 such witnesses interest in remaining anonymous is the court held “to some extent different from that of disinterested witnesses or victims.” 86 particular regard was given to the preservation of undercover agents and protection of their families. 87 (ii) the international covenant on civil and political rights article 14(3) iccpr provides that: “in the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees... (e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.” the rights set out in the covenant are „minimum guarantees‟ and are formulated without restriction. 88 state parties are obligated to „respect and to ensure‟ the rights of individuals within their jurisdiction. 89 the decisions and resolutions of the human rights committee (“the committee”) are “authoritative interpretation” and are not binding on states. 90 the committee has been reasonably uncompromising in its application of article 14(3)(e). in peart v jamaica 91 a violation was found where the police failed to make a prosecution witness‟ police statement available to the 84 above n 27 at para 70. 85 ibid at para 2. 86 ibid at para 56. 87 ibid. 88 m nowak (1993) un covenant on civil and political rights: ccpr commentary (2005 ed) 342. 89 pursuant to article 2 iccpr. 90 above n 4 at para 21. 91 peart v jamaica communication no 464/1991 and 482/1991. u.n.doc.ccpr/c/54/d/464/1991 (1995). witness anonymity at the international criminal court 44 defence. this, the committee held, “obstructed the defence in its crossexamination of the witness”. 92 in espinoza de polay the committee found that trials involving „faceless judges‟ were a violation of article 14(3). 93 violations have also been found in relation to the withholding of the names of witnesses from the defence in drug trafficking trials in columbia. 94 the committee will not find a violation of article 14(3) where the defendant has waived his rights to confrontation. in adams v jamaica 95 the police denied the defendant the opportunity to cross-examine prosecution witnesses. however the committee noted that “even though counsel objected to its submission into evidence, from the record it appears that he did not request an adjournment or even ask for a copy of the statement.” 96 no violation of article 13(3)(e) was found. similar dicta can be found in compass v jamaica. 97 the committee also does not appear to have formulated any exceptions to the right to confront witnesses, as the strasbourg has. the rights of witnesses/victims the rights of witnesses/victims will be balanced by the committee, against the rights of the defence when finding a violation of article 14(3). articles 6 and 17 of the covenant provide for the right to life 98 and protection of privacy 99 respectively. arguably these rights offer protection to witnesses giving evidence before courts and tribunals. state parties have an obligation in accordance in article 2 to “respect and to ensure to all individuals” 100 the rights set out in the covenant. this includes taking “the necessary steps...to 92 ibid at para 13. 93 communication no. 577/1994: peru. 09/01/1998. u.n.doc.ccpr/c/61/d/577/1994. 94 concluding observations by the human rights committee u.n.doc.ccpr/c/79/add.75, 9 april 1997 paras 21-40. 95 michael adams v. jamaica, communication no. 607/1994, u.n. doc. ccpr/c/58/d/607/1994 (1996). 96 ibid at para 8.3. 97 compass v. jamaica, communication no. 375/1989, u.n. doc. ccpr/c/49/d/375/1989 (1993). 98 “every human being has the inherent right to life. this right shall be protected by law...” 99 “no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.” 100 article 2(1). the denning law journal 45 adopt such laws or other measures as may be necessary to give effect to the rights recognized.” 101 the rights of witnesses/victims giving evidence in court are also protected by the un declaration of basic principles of justice for victims of crime and abuse of power. article 6 provides that: “the responsiveness of judicial and administrative processes to the needs of victims should be facilitated by: (b) allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system”. 102 conclusion the protection of witnesses is a complex and important issue that demands an integral balancing act against the rights of the accused. an individual that find themselves facing an international trial at the icc is guaranteed the right to a fair trial in accordance with international human rights standards as prescribed by international instruments such as the iccpr and the echr. the rome statute of the icc explicitly states in article 21(3) that the court must interpret law in accordance with “internationally recognized human rights”. the credibility and legitimacy of the icc will depend on how far the court is able to fulfil these guarantees. the requirements of a fair trial generally include a public hearing in which the accused has an opportunity to examine witnesses against him or her. nevertheless, the right of the accused to know and to confront prosecution witnesses is not absolute and must be balanced against other interests. the judges at the icc will have to be proactive in order to the balance the right of the accused against the protection of victims and witnesses. the judges will have to carefully give appropriate weight to both sets of interests and not shift the balance too far either side. this is a difficult task. the day to day interpretation and practice of the icc over the issue of witness anonymity will be littered with challenges. as well as looking to the practice of other tribunals such as the icty and the ictr, which will no doubt be useful and instructive, the icc can forge and build on the shortcomings from such tribunals. in addition, another source of informative and guidance on the issue of witness anonymity can be found in the realms of international human rights law in particular the echr where the scope of 101 article 2(2). 102 declaration of basic principles of justice for victims of crime and abuse of power. a/res/40/34. 29 november 1985. witness anonymity at the international criminal court 46 witness anonymity has come under the purview of the chambers in strasbourg. yet, the strasbourg jurisprudence is not without its problems. many of the difficulties identified above relating to the use of counterbalancing measures to mitigate a potential violation and the test for determining the scope of witness anonymity are not without their own problems. the case of al-khawaja and tahery may shed further light on the application of the solely/decisive test used in relation to witness anonymity. the decision of the grand chamber at strasbourg on this case will not only be useful to national courts but will also be of value to the icc when confronted with the issue. but what is clear is that the discussion of the issue of witness anonymity by the strasbourg court demonstrates the tension faced by courts generally in dealing with the matter and balancing the protection of witnesses and the rights of the accused. as former icty judge patricia wald commented, „witnesses in war crimes tribunal proceedings are precious commodities‟ and accordingly have to treated with respect and dignity. the use of protective measures such as anonymity is one of a number of means by which the icc will be able to fulfil its obligation under article 68 of the rome statute to take „appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses.‟ but so too the defendants must be afforded their basic rights and given a fair trial, in respect of which confrontation is an important aspect. ultimately, it will fall to the judges at the icc to determine the correct balance between fair trial rights of the accused and the protection of witnesses. unincorporated associations: property holding, charitable purposes and dissolution 65 denning law journal 2012 vol 24 pp 65-88 combating corruption: some reflections on the use of the offence and the tort of misconduct/misfeasance in a public office john hatchard  introduction after several years of controversy and uncertainty, on 8 april 2010 the bribery act 2010 received the royal assent. 1 the act swept away the unsatisfactory, fragmented and complex corruption offences at common law and under the prevention of corruption acts 1889-1916 2 and in their place created two general corruption offences (the offence of bribing another person and the offence of being bribed, each of which may be committed in the public or private sector), a discrete offence of the bribery of a foreign public official and an entirely new offence of failure by a commercial organisation to prevent a bribe being paid. 3 yet whilst an important milestone, the bribery act did not repeal the common law offence of misconduct in a public office 4 nor, of course, did it impact on the tort of misfeasance in public office. for many years, these were both somewhat neglected avenues for dealing with corrupt public officials but recently they have found a new lease of life. 5 the offence has become increasingly popular with prosecutors not only in england and wales 6 but in  john hatchard, llb, llm, barrister, professor of law, university of buckingham law school. this is an expanded and updated article that is based on a chapter written for c nicholls, t daniel, a bacarese and j hatchard corruption and misuse of public office (oxford: oxford university press, 2 nd edn, 2011) (hereafter „nicholls‟). 1 the act came into force on 1 july 2011. 2 it also repealed sections 108-110 anti-terrorism, crime and security act 2001 which extended the jurisdiction of uk courts to include the bribery of foreign public officials and corruption abroad by uk nationals and companies incorporated in the uk. 3 see generally nicholls, chapter 4. 4 the offence is sometimes referred to as misfeasance in a public office. 5 indeed in davis v bromley corporation [1908] 1 kb 170, the court of appeal held the tort of misfeasance did not exist. 6 statistics on the number of persons proceeded against in magistrates‟ courts in england and wales between 1998 and 2007 can be found in a paper by l maer “misconduct in public office” (2009) house of commons library p 11. combating corruption 66 other jurisdictions such as canada 7 and hong kong. 8 its importance as a weapon through which to combat corrupt practices is also highlighted by the inclusion of an “abuse of functions” offence in the united nations convention against corruption (uncac). 9 furthermore, the tort of misfeasance in a public office “bears some resemblance to the crime of misconduct in a public office” 10 and is now well established and is increasingly used in commonwealth countries. 11 several recent cases have explored and extended the scope of both the crime and the tort. this article explores these developments and, in particular, considers the contribution that both the crime and the tort can have in the fight against corruption and misuse of public office. in the first section, the offence of misconduct in a public office is considered whilst the second section explores the tort of misfeasance in a public office. the final section provides a short conclusion. section 1: the criminal offence of misconduct in public office the offence of misconduct in public office is an ancient one. pollock and maitland trace it back to the 13 th century 12 although the starting point for the development of the present offence essentially goes back over two hundred years to the judgment of lord mansfield cj in r v bembridge 13 who identified two principles. firstly that: “...a man accepting an office of trust, concerning the public, especially if attended with profit, is answerable criminally to the king for 7 see article 122 of the criminal code of canada (the offence of breach of trust by a public officer). see further the discussion in r v boulanger [2006] 2 scr 49 (supreme court of canada). 8 hong kong has retained the common law offence: see shum kwok shur v hksar [2002] 5 hkcfar 381 (hong kong court of final appeal). 9 see article 19 which is noted below. 10 see lord steyn in three rivers district council v bank of england (no 3) [2003] 2 ac 1 para 191. 11 see the views of lord diplock in dunlop v woolahra municipal council [1982] ac 158 at 172 and brennan j in northern territory of australia v mengel (1995) 69 aljr 527. 12 f pollock and f maitland the history of english law (cambridge: cambridge university press, 2nd edn, 1898, vol 2) pp 520-521, who trace the offence back to the 13th century: see r v w [2010] ewca crim 372 para 1. 13 (1783) 3 doug 327; 99 er 679. for earlier cases see mackalley’s case (1611) 9 co rep 656; crouther’s case (1600) cro eliz 654; 78 er 893 and anonymous (1704) 87 er 853. the denning law journal 67 misbehaviour in his office; this is true by whomever and in whatever way the officer is appointed.” secondly, “where there is a breach of trust, fraud or imposition, in a matter concerning the public, though as between individuals it would only be actionable, yet as between the king and the subject it is indictable”. 14 thus the offence is essentially a support for integrity and good governance on the basis that those who are entrusted with state power must act for the public good. whilst many of the reported cases involve police officers, the offence applies generally to officials in the public service, local government 15 and, arguably those in the private sector providing public functions. 16 its growing importance is due to several reasons. firstly, it can be used to prosecute corrupt practices by public officials, for example where a public official awards a lucrative government contract to a company of which s/he is a secret beneficiary or arranges for the sale of government land to a company owned or controlled by his/her family at a price far below the market value. 17 a charge of conspiracy to cause misconduct in public office is also available for use against those seeking to corrupt public officials. 18 secondly a single charge of misconduct in a public office may reflect a course of conduct or address a situation where no financial reward is involved. for example, in sin kam wah v hksar 19 the accused, a senior police officer, was in command of a department responsible for investigating vice offences. he was convicted on three charges of misconduct in that on several occasions he had been provided with prostitutes by the owner of several night clubs in return for protection from police investigation. in r v mcdade a former female prison officer pleaded guilty to the misconduct offence following her “inappropriate relationship with an inmate under her care”, which included a sexual relationship with him and the smuggling of items into the prison on his behalf. 20 thirdly it can apply to a somewhat disparate range of acts and omissions where these go beyond the need for disciplinary action. thus in the well 14 at page 681. 15 such as in r v bowden above n 34. 16 the scope of the term “public servant” is considered below. 17 see, for example marin & coye v attorney general of belize [2011] ccj 9 (aj) which is discussed in detail below. 18 for example, in july 2012 two journalists were arrested and charged with conspiracy to corrupt and conspiracy to cause misconduct in a public office. this was part of operation elveden, a police investigation into alleged corrupt payments by journalists to police officers to obtain information. 19 [2005] 2 hklrd 375. 20 unreported, cps press release 13 november 2009. she was sentenced to 30 months‟ imprisonment. combating corruption 68 known case of r v dytham 21 a police officer was convicted of the misconduct offence when, whilst on duty and in uniform, he witnessed a fatal assault on a man by a number of assailants. the officer took no steps to intervene and, when it was over, merely drove away. similarly, in r v burrows 22 the defendant who was a probationary police officer had been called to assist at a public order incident at which a fellow officer had assaulted a man before arresting him. in order to protect his fellow officer, the defendant wrote false notes of the incident and falsely claimed that he had arrested one of the men involved. he admitted the offence of misconduct in a public office. again, in r v w 23 a police officer was charged with the misconduct offence when he used a police credit card for his own personal expenditure as well as official expenses contrary to force instructions, albeit that the practice was widely followed by very large numbers of his colleagues. 24 the failure to protect vulnerable persons is another area where the offence is applicable. for example in r v harrington, a police officer pleaded guilty to misconduct in a public office on the basis of committing sexual acts upon an alleged victim of a sexual assault to whom he had been appointed as chaperone. the case against him was put on the basis that he had a duty to ensure that the woman was treated with kindness and sympathy in order to obtain the best possible evidence from her to aid the investigation of the sexual assault in respect of which she was the victim. 25 fourthly, given that the offence carries a maximum sentence of life imprisonment, it can be used in a variety of circumstances where other charges may not necessarily be applicable or appropriate or where the court‟s sentencing powers are otherwise inadequate. an important contemporary example is the unauthorised leaking of official information, an area in which the offence is proving particularly useful to prosecutors. 26 thus in r v lundlack, 27 a civilian working for a police counter-terrorism unit was convicted of misconduct in public office when he leaked information to a journalist about a 21 [1979] qb 722. 22 unreported, middlesex guildhall crown court, 2005. 23 [2010] ewca crim 372. 24 his appeal against conviction was upheld due to the misdirection of the trial judge regarding the mens rea for the offence. 25 unreported, central criminal court, 2003. the accused was sentenced to six months‟ imprisonment. 26 indeed paragraph 31 of the interpretative notes to uncac indicates that the article 19 “abuse of functions” offence may encompass a range of conduct such as improper disclosure by a public official of classified or privileged information: (a/58/422/add.1, para. 31). 27 unreported, kingston crown court, 2007. he was sentenced to eight months‟ imprisonment. the denning law journal 69 planned al-qaeda attack. in r v turner 28 a police officer was convicted of the offence when over a period of about 18 months and on a large number of occasions, he accessed records held on police computers and passed this information on to criminals. in dismissing his appeal, lord judge emphasized that “at the risk of repetition, police officers who access records and computers kept by the police for police purposes must be deterred, and deterrent sentences will be passed”. 29 the elements of the offence the long line of cases that have explored the elements of the offence were considered by pill lj in the seminal case of attorney-general’s reference (no 3 of 2003) (hereafter a-g ref 2003). 30 from these he concluded that the elements of the offence are: i) a public officer acting as such; ii) wilfully neglects to perform his duty and/or wilfully misconducts himself; iii) to such a degree as to amount to abuse of the public‟s trust in the office holder; iv) without reasonable excuse or justification. 31 it is useful to consider each element separately. i) a public office holder over the years, the scope of a “public office holder” has been extended. as noted earlier, in r v bembridge lord mansfield cj referred to a person “accepting an office of trust, concerning the public” whilst in r v whitaker 32 it was stated that a public officer “is an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public”. 33 in r v bowden 34 the court of appeal concluded that the offence applies generally to every person who is appointed to discharge a public duty and is paid compensation in whatever form, whether from the crown or otherwise. the key issue therefore is whether the 28 [2009] ewca crim 2219. 29 at para 35. turner was sentenced to twelve months‟ imprisonment. 30 [2004] ewca crim 868. 31 at para 61. 32 [1914] 3 kb 1283. 33 at page 1296. 34 [1996] 1 wlr 98; [1996] cr app r 104. combating corruption 70 public has an interest in the proper discharge of the duty placed upon the individual. 35 the issue of remuneration is discussed below. who then is classified as a “public official” for the purposes of the offence? willes j in r v lancaster and worrell 36 concluded that “the application and the principle is not confined to public servants in the narrow sense, under the direct orders of the crown”. thus seemingly it is not necessary that the individual in question is “appointed” to the post. this was certainly the view of the majority in the australian case of r v boston 37 who held that the post of a member of parliament was a public office. 38 the term also seemingly covers the significant number of public sector workers who are paid through private companies. as pill lj noted in a-g ref 2003, “public functions are now frequently carried out by employees in private employment, for example those concerned with security at courts and the transport of defendants”. 39 however the court declined to address the attractive submission of counsel that it is unfair and illogical if those holding a public office, such as police officers, are to be liable to a sanction not applicable to those in private employment who do similar work. a “flexible approach” to the issue is also illustrated in the recent case of r v belton 40 where goss lj in the court of appeal regarded a volunteer prison visitor with the independent monitoring board as a public servant on the basis that: “it seems most improbable that a person would be given such an entitlement [i.e. to visit any place in the prison and to interview any prisoner] if not the holder of a public office, or otherwise, under some suitable contractual arrangement with the prison [my emphasis].” if this statement is correct, then this represents a potentially significant widening of the scope of the offence and makes identifying its limits even more challenging. in such circumstances, it is perhaps preferable to focus on 35 it was also noted that a “public office” was correctly defined in henly v lyme corporation (1828) 5 bing new cases 91 where the case involved a mayor and burgesses of a borough. 36 (1890) 16 cox cc 739. 37 (1923) 33 clr 386. 38 in r v currie unreported, central criminal court, 1992, buckley, j as trial judge, ruled that an mp was the holder of a public office for the purposes of the common law offence of bribery. in the galley and green case, discussed below, the issue was not raised in circumstances where a serving member of parliament was investigated on suspicion of being an accessory to the misconduct offence. 39 para 62. 40 [2010] ewca crim 2857. the denning law journal 71 the nature and extent of the duty undertaken and thus adopt a functional rather than a titular approach to the issue. the issue of whether there is a requirement that the public servant was in receipt of any remuneration in order to establish the offence was also considered in r v belton. the decision itself hinged upon the correctness of the pre-trial ruling that “there is no requirement in law that someone must be remunerated in order to be a public officer”. in the court of appeal, gross lj referred to the words of lord mansfield cj in r v bembridge noted earlier and also the view of at lawrence j in r v whitaker 41 that a “public office holder is an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public” (my emphasis). he also noted that in r v borron 42 an unpaid magistrate was also charged with the misconduct offence 43 and that pill lj in att-gen ref 2003 when setting out the elements of the modern offence made no reference to the point. accordingly, gross lj took the view that “remuneration is indicative but not determinative” of the issue and is thus not an indispensable requirement for the offence of misconduct in public office. 44 the effect of the judgment is to confirm that the offence also potentially applies to a range of unpaid individuals operating within the public sector “including magistrates, special constables, perhaps local councillors and high sheriffs”. 45 in the case of volunteers “each case must turn on its own facts” and this inevitably raises uncertainty about those affected and in what circumstances. as was recognised in belton, liability in each case will seemingly depend upon the scope of the volunteer‟s duties and powers. 46 ii) wilfully neglects to perform a duty and/or wilful misconduct it is useful to explore firstly the scope of the offence as this issue directly impacts on the mens rea requirement. the misconduct offence has always applied to corrupt practices. thus in r v bembridge, lord mansfield cj emphasised the need to prove that the defendant acted “corruptly and fraudulently” whilst in r v williams he referred to the need for a “corrupt motive”. 47 none of the later cases have seemingly explored what constitutes 41 [1914] 3 kb 1283. 42 (1820) 3 b & ald 432. 43 although the charge was dismissed on other grounds. 44 see para 30. 45 per goss lj at para 29. 46 gross lj emphasised that “for the avoidance of any doubt it does not follow ... that every volunteer on every „quango‟ will hold public office” at para 17. 47 see r v bembridge (1783) 3 doug 327; 99 er 679, and r v llewellyn-jones [1968] 1 qb 429. combating corruption 72 “corruption” in this context whilst relevant international instruments are also largely silent on the point. for example, “corruption” is not defined in the united nations convention against corruption which merely requires state parties to adopt (or in some cases to consider adopting) a series of, what might be termed “corruption and related offences” that include bribery, trading in influence and, in article 19 an offence of “abuse of functions” in the following terms: “each state party shall consider adopting such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally, the abuse of functions or position, that is, the performance of or failure to perform an act, in violation of laws, by a public official in the discharge of his or her functions, for the purpose of obtaining an undue advantage for himself or herself or for another person or entity”. the case of magill v weeks 48 indicates that “corruption” goes beyond obtaining a financial advantage. in the house of lords, lord bingham of cornhill described the actions of certain local councillors in designating council houses for sale in the hope of electoral advantage as a “deliberate, blatant and dishonest misuse of public power. it was a misuse of power by both of them not for the purpose of financial gain but for that of electoral advantage. in that sense it was corrupt”. 49 as lord scott of foscote also emphasised: “this is a case about political corruption. the corruption was not money corruption. no one took a bribe. no one sought or received money for political favours. but there are other forms of corruption, often less easily detectable and therefore more insidious. gerrymandering, the manipulation of constituency boundaries for party political advantage, is a clear form of political corruption. so, too, would be any misuse of municipal powers, intended for use in the general public interest but used instead for party political advantage. who can doubt that the selective use of municipal powers in order to obtain party political advantage represents political corruption? political corruption, if unchecked, engenders cynicism about elections, about politicians and their motives and damages the reputation of democratic government”. 50 48 [2001] ukhl 67. 49 at para 48. 50 at para 132. the denning law journal 73 of course the offence goes beyond “corrupt” conduct and is said also to cover those “whose activities include extortion, fraud and oppression”. 51 in r v dytham 52 it was said that the offence “is more vividly exhibited where dishonesty is revealed as part of the dereliction of duty”. 53 in the important recent case of r v w 54 the court of appeal recognised that the nature of the conduct falling within the ambit of the offence is very wide and noted that the salmon report had observed that the offence “embraces a wide variety of misconduct including acts done with a dishonest, oppressive or corrupt motive”. 55 further that “its principal applications are said to include: (a) frauds and deceits (fraud in office); (b) wilful neglect of duty (nonfeasance); (c) "malicious" exercises of official authority (misfeasance); (d) wilful excesses of official authority (malfeasance); and (e) the intentional infliction of bodily harm, imprisonment, or other injury upon a person (oppression)”. 56 what is clear is that there is a critical distinction between breaches of public duty emanating from a corrupt, fraudulent etc motive, which fall within the criminal offence, and mistakes or errors by public officials, however serious, which do not. 57 the majority of reported cases focus on allegations of misconduct by public officials. however, identifying the scope of the offence, and therefore the mens rea requirement, is complicated by the fact that there developed a separate line of cases dealing with public officials who neglected their official duties. thus in the early case of r v wyat 58 it was said that where “... an officer neglects a duty incumbent on him, either by common law or statute, he is for his default indictable”. 59 in fact stephen in his digest of the criminal law identified two separate offences, firstly “frauds and breaches of trust by officers” and secondly “neglect of official duty”. 60 thus in dytham (noted earlier), whilst there was no corruption or dishonesty alleged, lord widgery cj concluded the accused could be convicted of a wilful neglect of duty, with the element of culpability being “of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for 51 r v llewellyn-jones [1968] 1 qb 429. here a county court registrar exercised his judicial responsibility with the intention of gaining an improper personal advantage. 52 [1979] qb 722. 53 per lord widgery cj at 726. 54 [2010] ewca crim 372. 55 report of the royal commission on standards in public life 1974-76 (the salmon commission) cmnd 5624. 56 referring to an article by p d finn “official misconduct” [1978] 2 crim lj 308. 57 a point made by abbott cj in r v borron (1820) 3 b & ald 432. 58 (1705) 91 er 331. 59 at p 332. for example, the failure of officers to suppress a riot: see r v kennett (1781) 172 er 976. 60 articles 121 and 122 respectively. combating corruption 74 condemnation and punishment”. 61 in fact, the cases have regularly combined the two offences, as the formulation in att-gen ref 2003 indicates. 62 this flexibility as to the scope of the offence inevitably impacts upon the formulation of the mental element. in att-gen ref 2003 pill lj emphasised that “the concept of wilful misconduct is apt to the offence” and referred to the “helpful” words of webster j in graham v teesdale & another 63 who stated that wilful misconduct means: “...deliberately doing something which is wrong knowing it to be wrong or with reckless indifference as to whether it is wrong or not”. pill lj emphasised that there must be an awareness of the duty to act or a subjective recklessness as to the existence of the duty and added: 64 “the recklessness test will apply to the question whether, in particular circumstances, a duty arises at all as well as to the conduct of the defendant if it does. the subjective test applies both to reckless indifference to the legality of the act or omission and in relation to the consequences of the act or omission”. to address the mens rea requirement as regards the neglect of official duties, pill lj stated “even in the context of misconduct said to arise from failure to perform a police duty, it was necessary for the crown to establish some mental element”. 65 the result is that what constitutes the appropriate mens rea will vary depending upon the particular circumstances of a case. this was accepted by the court of appeal in r v w where lord judge put it as follows: “…as the nature of the conduct falling within the ambit of the offence is very wide, any necessary element relating to the defendant‟s 61 at page 394. 62 this approach is also reflected in the views of sir anthony mason npj in shum kwok sher v hksar [2002] hkcfa 27, where he stated: “a public official culpably misconducts himself if he wilfully and intentionally neglects or fails to perform a duty to which he is subject by virtue of his office or employment without reasonable excuse or justification. a public official also culpably misconducts himself if, with an improper motive, he wilfully and intentionally exercises a power or discretion which he has by virtue of his office or employment without reasonable excuse or justification” at para 84. see also article 19 of uncac, noted earlier. 63 (1981) 81 lgr 117. 64 applying the house of lords decision in r v g [2003] ukhl 50. 65 as lord judge put it in r v w [2010] ewca crim 372 at para 5 after having referred to the views of pill lj. the denning law journal 75 subjective state of mind cannot be identical for each and every one of its different manifestations”. 66 this situation is hardly conducive to seeking certainty in the formulation of criminal offences and arguably any reform of the current position should consider the development of two separate offences. iii) to such a degree as to amount to abuse of the public’s trust in the office holder for prosecutors and jurors alike, distinguishing between misconduct, mistakes or conflicts of interest by public officials that are merely disciplinary in nature and those which attract criminal liability is potentially problematic. 67 the courts have emphasised that the test of culpability is that of “serious misconduct” and “must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment”. 68 as pill lj put it “the threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public‟s trust in the office holder. a mistake, even a serious one, will not suffice”. 69 allegations of corruption or bribery are certainly covered but in other cases the relevant factors to be taken into account are (i) the responsibilities of the office and office holder, (ii) the importance of the public objects which they serve; and (iii) the nature and extent of the departure from those responsibilities. 70 the issue as to the seriousness of the consequences of the breach in determining criminal liability remains uncertain. in att-gen ref 2003, pill lj noted that: “an act or omission which may have as its consequence a death, viewed in terms of the need for maintenance of public standards to be marked and the public interest to be asserted, is likely to be more 66 above, at para 8. 67 the facts of r v w provide a good example of the sometimes difficult line to be drawn between the two. 68 per lord widgery cj in dytham, above n 21, at 727-8. the supreme court of canada has stated that the conduct of the public officer must represent a “marked departure” from the standards expected of an individual in the accused‟s position: see r v boulanger [2006] 2 scr 49 at para 54. 69 at para 56. this is further emphasised in the crown prosecution guidance which states that “a charge of misconduct in public office should be reserved for cases of serious misconduct or deliberate failure to perform a duty which is likely to injure the public interest”: see http://www.cps.gov.uk/legal/l_to_o/misconduct_in_public_office/ 70 see the views sir anthony mason npj in shum kwok sher, above n 62, at para 86. combating corruption 76 serious than one which would cause a trivial injury. this factor is likely to have less significance where, as in shum kwok sher, the allegation is of corruption where the judgment upon the conduct may not vary directly in proportion to the amount of money involved”. 71 the potential difficulty with this approach is that it suggests that in some cases (such as those involving allegations of “corruption”) misconduct in a public office is a conduct crime and that the consequences of the act or omission are merely a factor to take into account when considering its culpability or seriousness. in other situations, it seems that the consequences of the action/omission as well as the motive with which the public officer acted are the key factors in determining whether the public‟s trust was abused to such an extent as to attract criminal liability. the point is well illustrated in the case of the unauthorised leaking of confidential information by a public servant. arguably this, in itself, is a matter for the criminal law even where there was little or no resultant harm. as judge lj emphasised in attorney-general reference (no 140 of 2004): 72 “the unauthorised disclosure of information held in any records kept and maintained only for public purposes should always be regarded as a serious offence. the amount of private information about each and every single citizen in this country, available to public servants, has increased, and with modern technology continuing increase is virtually inevitable. citizens are entitled to assume that the information so kept will only be made available to those who are entitled to see it, and only for the express purposes permitted by law”. 73 yet the high-profile case of green and galley highlights the uncertainty surrounding this point. here galley, a civil servant, had allegedly leaked confidential government documents to green, a (then) opposition member of parliament. the action was contrary to the civil service code (and therefore a disciplinary matter) but the issue was whether there were grounds to prosecute both men for the misconduct offence. in april 2009, the director of public prosecutions (dpp) announced that he had concluded that there was no realistic prospect of a conviction against either of the men for the alleged 71 at para 46. 72 [2004] ewca crim 3525. 73 para 9. the denning law journal 77 offences and had decided that charges should not be brought. the reasons for this decision are noteworthy. 74 in the first place, the dpp stated: “i have concluded that there is evidence upon which a jury might conclude that the conduct of mr galley in passing various documents to mr green amounted to a clear breach of his public duties.... mr galley seriously breached the trust placed in him by the public.... i have also concluded that there is evidence upon which a jury might conclude that mr green aided or abetted mr galley‟s conduct and, in particular, his breach of the public‟s trust. there is, additionally, evidence upon which a jury might conclude that there was an ongoing relationship between mr galley and mr green, which mr green encouraged in the hope and expectation that mr galley would continue to supply restricted and/or confidential information to him” (my emphasis).” however, the dpp then asserted: “it is important that public officials should not leak restricted and/or confidential information. but, it is important that a breach of duty that might best be considered as a disciplinary matter should not be elevated to a criminal offence simply by virtue of the fact that the person leaking the information is a public official. thus there is a need for an intense focus on any additional damage actually or potentially caused. in this case, i have concluded that there is little evidence of any additional damage caused by the leaks in question. the documents leaked undoubtedly touched on matters of legitimate public interest and mr green‟s purpose in using the documents was apparently to hold the government to account…”. this is a curious approach in that the dpp had already recognised that “mr galley seriously breached the trust placed in him by the public” by the unauthorised leaking of confidential information. arguably, the fact that there was “little evidence of any additional damage caused by the leaks” was not a relevant consideration when determining whether the action itself constituted an abuse of the public‟s trust in the office holder and thus the threshold for a criminal prosecution had already been met by the action of galley in passing confidential documents to green. whatever the motives for the decision of the dpp, it once again highlights the uncertainty as to the scope of the present law. this is reflected in the judgment of pill lj in att gen ref 2003 who 74 “decision on prosecution: mr christopher galley and mr damien green mp” cps 16 april 2009: available at www.cps.gov.uk. combating corruption 78 stated that “it will normally be necessary to consider the likely consequences of the breach in deciding whether the conduct falls so far below the standard of conduct to be expected of the officer as to constitute the offence” (my emphasis). he continued: “there will be some conduct which possesses the criminal quality even if serious consequences are unlikely but it is always necessary to assess the conduct in the circumstances in which it occurs”. 75 arguably, in cases of neglect of official duties the issue of consequences does not arise. an adjustment to the facts of dytham illustrates the point. suppose a police officer, whilst on duty and in uniform, witnesses an assault on a man. the officer takes no steps to intervene and, when the attack is over, merely drives away. however, unlike the situation in dytham itself, the victim is only slightly injured in the attack. assuming the requisite mens rea is present, it is the failure of the officer to respond appropriately that brings about liability for the misconduct offence and the consequences i.e. the extent of the injuries sustained by the victim, are irrelevant to the question of criminal liability. again this illustrates the desirability of establishing two separate offences. iv) without justification or excuse pill lj in att-gen ref 2003 did not elaborate on this requirement but presumably this will be a matter for the court to take into consideration on a case by case basis. too “flexible a friend”? recent developments regarding the misconduct office means that it a potentially useful “safety net” offence for prosecutors, especially as it remains an indictable only offence carrying a maximum sentence of life imprisonment. 76 in 1996, smith commented that “the most unsatisfactory feature of common law misdemeanours is the uncertainty about their elements 75 at para 58. 76 in r v rimmington, r v goldstein [2005] ukhl63 the house of lords emphasised that: “good practice and respect for the primacy of statute require that conduct falling within the terms of a specific statutory provision should be prosecuted under that provision unless there is good reason for doing otherwise” (at para 3). not infrequently, the misconduct offence is included as an alternative to a statutory offence. the denning law journal 79 and limits and the boundaries between them”. 77 the series of cases since then certainly reinforce this view and highlight the “flexible” and somewhat uncertain nature and scope of an offence that covers serious cases involving corruption to cases which arguably are little more than serious disciplinary matters. the uncertainty surrounding its scope might yet attract the interest of the european court of human rights. the longevity of the offence is remarkable, especially in view of the numerous calls for the creation of a statutory offence. yet its end may now be in sight for the law commission has announced that it will commence work in 2014 on a project that will involve the “simplification, clarification and codification of the common law offence” with a view to producing a final report in 2016. hopefully this will address the problems and uncertainties explored in this part of the article. section 2: the tort of misfeasance in a public office like its criminal counterpart, the tort of misfeasance in a public office has a long history dating back at least to the case of ashby v white. 78 the raison d‟être of the tort is to address “bad faith in the exercise of public powers” 79 and thus to allow actions by a private individual or class of persons seeking recompense against public officers who have acted corruptly or otherwise seriously abused their powers: something which was not open to them through a public law suit. in other words, “misfeasance was created to offer the citizen in such a situation a head of liability under which to recover compensation”. 80 for example, where a voter was wilfully denied the right to vote by the returning officer; 81 where a police officer forged the plaintiff‟s signature on a written statement withdrawing a complaint of theft, 82 where a public official exercised his discretion to revoke a trader‟s licence for an improper purpose 83 or where a public official awarded a government contract to a company knowing that he had no power to do so lawfully and that in doing so the plaintiff would be injured. 84 77 j smith case comment “misconduct in public office” [1996] crim lr 57. 78 1 smith‟s lc (13th ed) 253; (1703) 92 er 126. 79 lord steyn in three rivers at page 193b. 80 marin & coye (below) para 11. 81 ashby v white above n 78. 82 kuddus v chief constable of leicestershire [2001] ukhl 29. 83 roncarelli v duplessis [1959] scr 121 (supreme court of canada). 84 harmon cfem facades (uk) ltd v the corporate officer of the house of commons [1999] ewhc technology 199. combating corruption 80 as with its criminal counterpart, there was some uncertainty as to the scope of the tort. indeed at one stage, the court of appeal effectively denied its existence. 85 in 2003 the house of lords in three rivers district council v bank of england (no 3), 86 (three rivers), clarified and significantly expanded the scope of the tort. the decision of the caribbean court of justice in the recent case of marin and coye v attorney general of belize 87 suggests that there is yet further scope to develop the tort. the three rivers case itself concerned a claim that the bank of england was liable to former depositors with the bank of credit and commerce international (bcci) for the tort of misfeasance in public office on the basis of the bank of england‟s failure in its responsibilities in supervising banking activities in the united kingdom. whilst the claim was not upheld, lord steyn in the house of lords took the opportunity to identify the ingredients of the tort as follows. 88 1. the defendant must be a public officer; 2. the defendant, at material times, was exercising power as a public officer; 3. there are two different forms of liability: firstly, targeted malice by the defendant i.e. conduct specifically intended to injure a person(s) through the exercise of public power for an improper or ulterior motive; or secondly, where the defendant acted knowing that s/he had no power to do the act complained of and that the act would probably injure the plaintiff; 4. the plaintiff has sufficient interest or nexus to bring an action; 5. there is proof that the loss was caused by the abuse of power 6. the damage was not too remote. lord steyn also recognised that “the tort bears some resemblance to the crime of misconduct in a public office”. 89 this means that much of the discussion in section 1 of this article on the elements of criminal misconduct is also applicable to the tort. 90 however pill lj noted that there must be some differences between the two, for example in that “the crime is committed upon an affront to the crown, that is in this context the public interest, whereas the tort requires a balancing of interests as between public officers 85 davis v bromley corporation [1908] 1 kb 170. 86 [2003] 2 ac 1. 87 [2011] ccj9 (aj). 88 [2003] 2 ac 1, pp 191–194. 89 at page 191a, citing r v bowden above n 34. 90 for example, the principles laid down in r v bembridge are reflected in the civil case of henly v lyme corporation 5 bing 91. the denning law journal 81 and individual members of the public or organisations seeking private remedies having asserted a loss which must be proved”. 91 the particular significance of the three rivers decision was that it expanded the scope of the tort of misfeasance. as chamberlain has argued, historically, the tort was limited to abuses of power that were directly targeted against a particular plaintiff, the essence being the misuse of power by a public officer with the deliberate intent to harm that person. 92 however, she points out that under the test laid down in three rivers “it is only necessary to establish that the defendants were reckless as to whether their actions were lawful and reckless as to the fact that harm to the plaintiffs would likely ensue” and suggests that such an approach “cannot possibly keep the misfeasance tort within reasonable bounds”. 93 the decision of the caribbean court of justice in marin v coye seeks to develop the tort still further. further developing the tort? the case of marin & coye v attorney general of belize in three rivers, lord steyn stated that one of the essential elements of the tort is that “any plaintiff must have a sufficient interest to found a legal standing to sue. subject to this qualification, principle does not require the introduction of proximity as a controlling mechanism in this corner of the law.... there is no reason why such an action cannot be brought by a particular class of persons, such as depositors at a bank, even if their precise identities were not known to the bank”. 94 this class will also include claims brought by corporate and other entities. 95 it is in this context that the 2011 decision of the caribbean court of justice (ccj) in marin and coye v attorney general of belize (hereafter marin & coye) is of particular interest. 96 the facts were straightforward. the 91 para 48. he added “[neither] the mental element associated with the misconduct, nor the threshold of misconduct should be set lower for the crime than for the tort” (at para 53). however, compare this view with the discussion in marin and coye below. 92 see e chamberlain “the need for a „standing‟ rule in misfeasance in a public office” [2007] oxford university commonwealth law journal 215. 93 at p 235. 94 at p 193. lord steyn also expressly agreed with the view of the trial judge that “if an officer deliberately does an act which he knows is unlawful and will cause economic loss to the plaintiff, i can see no reason in principle why the plaintiff should identify a legal right which is being infringed or a particular duty owed to him, beyond the right not to be damaged or injured by a deliberate abuse of power by a public officer”. 95 see, for example, bourgoin sa v ministry of agriculture, fisheries and food [1985] 3 wlr 1027. 96 [2011] ccj 9 (aj) combating corruption 82 attorney general of belize filed a civil claim against two former government ministers alleging that during their tenure in office they had procured the sale of state land to a company beneficially owned and/or controlled by one of them at almost $1 million below market value. 97 crucially, the claim was based on the common law tort of misfeasance in public office. the central question for the ccj was whether the tort encompassed actions by the attorney general, acting on behalf of the state, against its own officers, or former officers. by a majority of 3-2, the ccj held that the attorney general was competent to bring the action on behalf of the crown against the appellants in order to recover compensation for the loss sustained. 98 as noted below, all the judges of the ccj recognised that some civil causes of action and remedies were already open to the state through which to combat corruption and misuse of public office. the essential disagreement focused on the view of the majority that the tort of misfeasance offered an extra tool for the state to fight corruption to be used not instead of but in addition to other available tools and that would serve to promote rather than erode integrity in public life. the two dissenting judges, de la bastide pccj and saunders jccj, took the view that “as a matter of policy” the court should not extend the tort to accommodate actions by the state and that “there can be little doubt that the appropriate course of action here is for the state to institute criminal proceedings”. further, they found it “impossible to conceive” a situation where corrupt acts occasioning serious material loss to the state would suffice to ground an action in tortious misfeasance but be insufficient to make out a prima facie criminal case. they concluded that: “extending the tort of misfeasance unnecessarily to give the attorneygeneral another choice of civil remedies does not strike a blow for the maintenance of probity by public officials. quite the contrary, it has the opposite effect. it offers the miscreant the softer option of civil liability” (my emphasis). 99 these views raise two key issues for consideration: (i) the use of the tort as an alternative to, or in addition, to the criminal offence of misconduct in public office; and (ii) whether, in any event, the tort accommodates actions brought on behalf of the state. 97 the government of belize was claiming $924,056.60, plus damages and interest, for the sale of 59 parcels of land in coye‟s former constituency. 98 it is not clear as to why the director of public prosecutions did not bring a criminal prosecution for misconduct in public office, where the alleged facts certainly indicated that the former ministers had a case to answer. 99 para 44. the denning law journal 83 (i) the tort of misfeasance as an alternative, or in addition, to the criminal offence of misconduct in public office as in the marin & coye case itself, allegations of corrupt practices or abuse of power against public officials will always raise the prospect of a criminal prosecution for misconduct in public office (or some other offence) and this point was accepted by all members of the ccj. however, that is not to overlook the sometimes sound policy reasons for considering the use of the tort of misfeasance as an alternative, or in addition, to criminal proceedings and there is nothing in law to prevent the two sets of proceedings from running side-by-side. 100 in the first place, the dissenting judges argued that in misfeasance cases, the courts were entitled to require a higher standard of probability than in a negligence claim. this is questionable. this view was based on the views of denning lj in bater v bater 101 that “where criminal acts are being established in a civil case, courts are entitled to require a higher degree of probability than that which they would seek when considering whether negligence, for example, were established.” this implies that there is little to differentiate between the standard of proof in criminal and “serious” civil cases, and as the dissenting judges acknowledged, this may explain why the “rate of success” for misfeasance suits was “notoriously low”. 102 whilst they adopted a comparative analysis of many issues, strangely they made no reference to the 2008 house of lords decision of in re doherty 103 where lord carswell adopted a forthright approach to the standard of proof: 23. much judicial time has been spent in the last 50 or 60 years in attempts to explain what is required by way of proof of facts for a court or tribunal to reach the proper conclusion. it is indisputable that only two standards are recognised by the common law, proof on the balance of probabilities and proof beyond reasonable doubt. the latter standard is that required by the criminal law and in such areas of dispute as contempt of court or disciplinary proceedings brought against members of a profession. the former is the general standard applicable to all other civil proceedings and means simply, as lord nicholls of birkenhead said in in re h (minors) (sexual abuse: standard of proof) [1996] ac 563, 586, that 100 see, for example, connelly v dpp [1964] ac 1245 and r v l [2006] 1 wlr 3092. 101 [1950] 2 all er 458 at 459. 102 para 35. 103 [2008] 1 wlr 1499. combating corruption 84 "a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not." 24. any confusion which has crept into the application of this principle appears to have stemmed from statements made in a number of earlier cases, which may have been misunderstood but certainly have not always been applied correctly. the earliest situation appears to be bater v bater [1951] p 35, 37.... there is much to commend this approach and, if adopted elsewhere, then, contrary to the view of the dissenting judges, there is indeed a clear and significant distinction between the standard of proof in criminal and civil cases even where this involves an allegation of criminal conduct. 104 secondly, there remain significant challenges in successfully prosecuting corruption or misconduct cases, including working with the outdated and excessively technical rules of evidence that are still found in many commonwealth countries. other challenges, particularly associated with senior public officers and political figures, include the absconding of the official, constitutional immunity from prosecution, judicial corruption or the lack of the political will to prosecute. 105 thirdly, the view of the dissenting judges that the tort of misfeasance offers a “softer option” is also questionable. they certainly make the useful point that “the yardstick for measuring the appropriateness of suitable proceedings by the state against those who are involved in corrupt acts ought not, in our view, to be relegated merely to the degree to which the state‟s loss was recoverable through those proceedings”. they also note that courts often impose massive fines on persons convicted of misfeasance in public office, 106 albeit overlooking the fact that fines and criminal confiscation orders are dependent upon a criminal conviction. yet as maurice kaye lj emphasised in hussain v chief constable of west mercia: “misfeasance in public office is an intentional tort of considerable gravity. it is a tort of obloquy. as lord steyn explained in three rivers dc v bank of england (no.3), it involves either targeted malice or bad faith on the part of a public official”. 107 104 one of the majority judges, anderson jccj, certainly recognised that the standard of proof differed significantly between tort and criminal proceedings: see para 147. 105 see generally nicholls, especially chapter 8. 106 para 39. 107 [2008] ewca civ 1205 at para 20. the denning law journal 85 it is also clear that exemplary damages may be claimed. 108 it is against this background that the views of the majority in marin & coye must be considered. in his judgment, wit jccj focused on the need for governments to take firm action against public officials who had abused their office for personal enrichment with a view to the state recovering the stolen assets. he asserted that “if the objective is to recover economic loss due to the public officer‟s abuse of his power, the tort of misfeasance would be the appropriate remedy”. 109 this was echoed by barnard jccj who noted that the option of a criminal prosecution was not within the remit of the attorney general but that in any event “the attorney general may be more concerned with recovering loss to the public purse which in this case is the economic value of the national lands amounting to $924,056.00”. 110 wit jccj also emphasised that “the criminal law should not be used by the state with the main objective of getting compensation for damages suffered by the state even though it is clear that such a result could be obtained through the backdoor of high fines or, where the legislation allows it, through the side door of compensation orders”. 111 this approach reflects the fact that the use of civil actions and remedies is now a key strategy for states seeking to recover stolen state assets. as sir dennis byron has observed “it is now realised that one of the key factors in reducing crime, is the delivery of civil justice where it was previously thought it was the use of criminal sanctions”. 112 there are already many examples of civil actions being brought by the state against corrupt public officials. 113 perhaps the classic example is the civil action brought by the attorneygeneral of zambia in the high court of england and wales in which peter smith j found that the former president of zambia, frederick chiluba, together with former zambian ministers and public officials had conspired fraudulently to misappropriated millions of dollars belonging to the people of zambia through a number of corrupt schemes. 114 interestingly, this led to a criminal prosecution of chiluba taking place in zambia, although in somewhat contentious circumstances, he was exonerated on all charges. 115 108 kuddus v chief constable of leicestershire [2001] ukhl 29. 109 para 95. 110 para 64. 111 para 96. emphasis in the original. 112 address at the opening of the 2nd biennial conference of judicial officers of the caribbean court of justice, 2011. 113 for example the notorious case of a-g for hong kong v reid [1994] 1 ac 324 (pc). see generally nicholls chapters 8 and 9. 114 see attorney-general for zambia v meer care and desai [2007] ewhc 952 (ch). 115 for a discussion see nicholls para 9.29 et seq. combating corruption 86 thus, it is erroneous to view serious misconduct by public officials, such as in marin & coye, as inevitably requiring a criminal prosecution. rather states have a choice between launching a criminal prosecution and a civil action (or utilising both) and this will depend upon the factors discussed above. it means that the key issue in marin & coye was whether it was appropriate to extend the tort of misfeasance to actions by the state. (ii) does the tort of misfeasance extend to actions by the state against public officials? in their dissenting judgment, de la bastide pccj and saunders jccj emphasised that “the overwhelming consensus throughout the entire commonwealth ... is that the tort protects the peculiar interests of a private entity or member of a class”. 116 further that the “essentially private character of the tort” can be traced back to its roots which was to provide aggrieved individuals with the power to obtain recompense against public officials who had abused their powers: something which was not open to them through a public law suit. in other words, “misfeasance was created to offer the citizen in such a situation a head of liability under which to recover compensation”. 117 they also noted that this reflected the position from the early case of henly v lyme corporation through to the house of lords decision in three rivers as well as in jurisprudence from new zealand, 118 australia 119 and canada. 120 curiously, and somewhat at odds with their views on the use of the criminal law in such cases, they also recognised that where the state has suffered loss in such circumstances, it already had effective alternative means to deal with the situation by bringing a civil suit against public officials for breach of fiduciary duty or breach of trust. as they emphasised: “the equitable causes of action are actually tailor-made for a case like this where ministers of government are alleged to have flouted their solemn responsibilities”. 121 the majority based their views on the need for courts to enjoy a wide array of options through which to combat corruption and misuse of public office and that different torts offered different remedies. wit jccj rejected the argument that as there was no prior judicial authority for doing so, extending 116 para 10. 117 para 11. 118 garrett v attorney general [1997] 2 nzlr 332. 119 tampion v anderson [1973] vr 715. 120 odhavji estate v woodhouse [2003] 3 sc 263. 121 para 31. the denning law journal 87 the tort to an action by the state was not maintainable 122 and he pointed out that in all the cases cited by the dissenting judges the point had simply not been in issue. in any event, he asserted, somewhat unconvincingly perhaps, that extending the tort “is in no way creating a new principle but is simply the logical application of the principles which have already been developed by the common law...”. 123 anderson jccj was of the view that the state possessed the entitlement to sue in order to protect its rights and that “in contemporary society, in proceedings by and against the crown, the rights of parties are to be as nearly as possible the same as in a suit between individual persons”. 124 he also pointed out that the availability of alternative causes of action “cannot be logically determinative” of the competence of the attorney general to sue in misfeasance. essentially the matter fell to the consideration of the remedy sought. thus where the state desired to trace property purchased by a public official, an action for breach of fiduciary duty might be more useful. 125 however the tort of misfeasance was appropriate where the attorney general thought that an award of exemplary damages was appropriate and that the decision as to the type of civil proceedings to bring “to vindicate the state‟s corporate interests” should be left in the hands of the attorney-general. 126 part 3: some final thoughts the longevity of both the crime of misconduct and tort of misfeasance is remarkable and both are enjoying a new importance not only in england and wales but also in a number of other jurisdictions. a key reason for this lies in the recognition that they both contribute to the development of a range of effective strategies through which states can seek to combat corrupt practices by their public officials the use of the criminal law is a fundamental part of this approach and, as regards england and wales, the coming into force of the bribery act 2010 is an important step forward. however, as noted earlier, the act is of limited scope. thus the criminal offence of misconduct in a public office will remain an important weapon in the prosecutorial armoury, albeit that the continued uncertainty about its elements and limits discussed in this article certainly 122 at paras 89-90. he noted that in southern developers ltd and others v attorneygeneral of antigua and barbuda (unreported 2007) that it was assumed but not decided that a state could bring the action see para 89. 123 at para 93. barnard jccj refers to the court introducing a “new dimension” to the tort: at para 66. 124 at para 137. 125 see, for example the reid case above n 113. 126 at para 150. combating corruption 88 merit attention. here the proposed law commission project that will involve the “simplification, clarification and codification” of the common law offence will hopefully address these concerns. even with the statutory reform of the offence, for the reasons noted earlier, the criminal law has sometimes proved somewhat ineffective when seeking to combat corruption and serious misconduct by public officers. as a result, alternatives to criminal proceedings are becoming increasingly important prosecutorial tools, for example the use of formal plea negotiations. 127 yet the decision in marin and coye emphasises the increasing importance of utilising civil suits and remedies in the fight to enhance integrity in the public service and combat corrupt practices by public officials. here the objective is to take away the profit from the abuse of office and enable the state and its people to recover its economic loss. seen from this perspective, the decision of the caribbean court of justice is noteworthy for, as wit jccj stated, the decision offers an extra tool for the state to fight corruption to be used not instead of but in addition to other available tools and that will serve to promote rather than erode integrity in public life. as he put it, “at the end of the day the state has, as it should have, all the tools it needs to govern “for the common good of the people” 128 in seeking to introduce a “new dimension” to the tort of misfeasance, the court in marin & coye has suggested that it is “still developing” and that the three rivers decision is not the last word on the matter. 129 it remains to be seen whether other states follow the lead of the caribbean court of justice. what is clear is that courts worldwide are now exploring ways of extending and developing civil actions and remedies as a means to combat corruption in public office. as anderson jccj put is so eloquently: “... these developments may well portend the welcome emergence of a new matrix of causes of action hitherto frozen in time in their historical crypts and animated by judicial imprimatur”. 130 127 see, in particular, the attorney-general’s guidelines on plea discussions on cases of serious or complex fraud (2009). 128 at para 148. 129 see wit jccj at para 75. 130 at para 152. unincorporated associations: property holding, charitable purposes and dissolution denning law journal 2014 vol 26 pp 234-245 case commentary the setting of the sun on the village green era? r (on the application of barkas) v north yorkshire county council [2014] uksc 31 natalie pratt∗ introduction the united kingdom supreme court has recently handed down the much anticipated judgment in r (barkas) v north yorkshire county council1 (“barkas”). the case addressed the “by right” defence in village green law and whether use that is pursuant to a statutory right could be use “as of right” for the purposes of village green registration. the court unanimously ruled that use “by right” could not be considered as use “as of right” and would not be qualifying use for the purposes of registration. use will be “by right” when it is pursuant to a statutory right to use the land, and is usually engaged when the land in question is in public ownership. in reaching this judgment the court overruled the previous authority of r (beresford) v sunderland city council2 (“beresford”). the supreme court left many questions unanswered, although the culmination of recent activity in village green law now makes it considerably harder to register new greens. the inability to protect recreational spaces through village green registration potentially makes this land available for development, thus tipping the balance in favour of the economic aim, at the expense of the social and environmental aims, of sustainable development. context to understand the facts of barkas it first important to understand the legal context in which they occur and the law surrounding village green registration. ∗ lecturer in law, university of buckingham at natalie.pratt@buckingham.ac.uk 1 [2014] uksc 31, [2014] 2 wlr 1360. 2 [2003] ukhl 60, [2004] 1 ac 889. 234 the denning law journal land can be registered as a town or village green (“tvg”) pursuant to s15 commons act 2006 and previously under s22 commons registration act 1965. under the commons act it must be shown that the land has been used as of right for lawful sports and pastimes, for a period of at least twenty years, by the inhabitants of a locality or neighbourhood within a locality. the key requirement is that the use must be “as of right”, which has been taken to mean the tripartite test of nec vi, nec clam and nec precario: that the use must be without force, without stealth and without the licence of the landowner.3 the rationale behind these factors was explained by lord hoffmann in r v oxfordshire county council, ex p sunningwell parish council as being that every legal system needs rules of prescription that protect long established defacto enjoyment of land.4 each of these three factors gives the landowner the opportunity to object to the use, if they opt not to do so then they are taken to have acquiesced in the use by the local inhabitants. it can therefore be seen that village green law is underpinned by the principles of prescription in english law.5 village green registration confers rights of recreation upon the users of the land who are from the relevant locality or neighbourhood within a locality,6 and has the practical effect of protecting the land as it cannot be used in a way that is inconsistent with these recreational rights. tvg law therefore seeks to promote the social value of land (arguably there are some environmental benefits of village green registration, but these concerns are directly addressed by other mechanisms through which land can be protected), often at the expense of the economic value that can be attached to open spaces. registration of land as a village green is often used as an attempt to thwart development plans, to the extent it has been referred to as “being used as a weapon of guerrilla warfare against development of open land.”7 recent developments in village green law appear to have reversed this trend of prioritising the social aim and lean more towards favouring the economic dimension and development of open spaces. the growth and 3 r v oxfordshire county council, ex p sunningwell parish council [2000] 1 ac 335 (hl), 350h (lord hoffmann). 4 [2000] 1 ac 335 (hl), 349d. 5 village green law is described as being “traceable” to prescription by patten lj in taylor v betterment properties (weymouth) ltd [2012] ewca civ 250, [2012] 2 p&cr 3 [36]. 6 r (on the application of oxfordshire and buckinghamshire mental health nhs foundation trust) v oxfordshire county council [2010] ewhc 530, [2010] blgr 631 [80] (hhj waksmann qc). 7 r (lewis) v redcar and cleveland borough council and another [2010] uksc 11, [2010] 2 ac 70 [48] (lord walker). 235 case commentary infrastructure act 2013 amended the commons act 2006 to introduce additional bars to registration of land as a tvg. section 15c now provides that registration will be barred where a trigger event under schedule 1a, which are all linked to planning applications, has occurred. there is a tremendous housing shortage in england and wales and the sterilisation of potential development sites by village green registration is proving controversial. as leslie blohm qc has noted in a recent article, “[t]here is no innate superiority in land being held for recreation as opposed to land being held for housing, business transport or health... at any given time the community may require one rather than the other”.8 at this given time land protected for recreation is clearly not finding favour with parliament and their perceived needs of the economy and society as a whole. facts barkas concerned a playing field of some two hectares, known as helredale playing field (“the field”), situated in north yorkshire and owned by scarborough borough council (the “council”). the field was originally acquired in 1951 by the predecessor of the council as part of a larger plot of land, extending to some fourteen hectares, pursuant to powers under s73(a) housing act 1936. the majority of this plot was subsequently developed into a housing estate with the field being laid out and maintained as recreation grounds pursuant to s80(1) of the housing act 1936. the 1936 act was subsequently repealed and re-enacted with amendments in 1957 and 1985 and by the time litigation commenced the land was now held under s12(1) housing act 1985 which provides: a local housing authority may, with the consent of the secretary of state, provide and maintain in connection with the housing accommodation provided by them under this part (a) buildings adapted for use as shops, (b) recreation grounds, and (c) other buildings or land which, in the opinion of the secretary of state, will serve a beneficial purpose in connection with the requirements of the persons for whom the housing accommodation is provided. the field was surrounded by at least three estates that were developed as local authority housing and had four entrances that were open at all times, 8 leslie blohm, “the ‘by right’ doctrine and village green applications a response” [2014] 1 conv 40, 51. 236 the denning law journal with signs advising dog owners to clear up after their dogs and keep them on leads. it was largely grass, with the exception of a hard surface path that crossed the field, which the council maintained and marked out a football pitch on. for at least fifty the years the park had been used openly and extensively by the local inhabitants for recreation. in october 2007 an application was made on behalf of the helredale neighbourhood council to north yorkshire county council, the relevant commons registration authority, to register the land as a tvg under s15 commons act 2006. section 15(2) commons act 2006 provides that land may be registered as a tvg where: (a) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; and (b) they continue to do so at the time of the application. north yorkshire county council appointed vivian chapman qc to conduct an inquiry in order to determine the application. he reported in june 2010 and determined that the use of the inhabitants had not been “as of right”, but rather “by right”,9 because the inhabitants had only used it for the purpose for which it was provided by the local authority in the exercise of its statutory powers. accordingly, north yorkshire county council rejected the application for registration and christine barkas, a member of the helredale neighbourhood council, applied for judicial review of this decision. the application failed in the high court10 before langstaff j and the appeal to the court of appeal11 was dismissed by sullivan lj, with whom richards and mcfarlane ljj agreed. christine barkas then appealed to the supreme court. issue the issue before the supreme court was relatively basic: where land is provided and maintained by a local authority pursuant to section 12(1) of the housing act 1985 or its statutory predecessors, is 9 to use the terminology of sullivan lj in the court of appeal, [2012] ewca civ 1371, [2013] 2 all er 69 [3]. 10 [2011] ewhc 3653 (admin). 11 [2012] ewca civ 1371, [2013] 2 all er 69. 237 case commentary the use of that land by the public for recreational purposes “as of right” within the meaning of section 15(2)(a) of the commons act 2006?12 lord neuberger also helpfully explained key terminology and the “by right” principle in his speech at paragraph fourteen: “as of right” is, somewhat counterintuitively, almost the converse of “of right” or “by right”. thus, if a person uses privately owned land “of right” or “by right”, the use will have been permitted by the landownerhence the use is rightful. however, if the use of such land is “as of right”, it is without the permission of the landowner, and therefore is not “of right” or “by right”, but is actually carried on as if it were by righthence “as of right”. for use to be “as of right”, and more specifically nec precario, it is required that the user be a trespasser. as soon as there is a pre-existing right to use the land then there can be no prescriptive acquisition of rights. the additional limbs of nec vi and nec clam require the trespasser to be peaceable. section 12 housing act 1985 in itself does not technically confer any rights on the public to use the land. however, sullivan lj explains that: [m]ost statutes dealing with local authorities do not expressly confer rights on members of the public, they tend to impose duties upon the authority and thereby confer rights that are enforceable as a matter of public law.13 therefore the local inhabitants have a statutory right to use the land which has been appropriated for recreation because the local authority, in appropriating the land for this purpose, is under a duty to use it for this purpose until it is formally appropriated for an alternative purpose. decision both lord neuberger and lord carnwarth (with whom lady hale, lord reed and lord hughes agreed) delivered fully reasoned speeches and dismissed the appeal of christine barkas. although the land had been used for over twenty years it had not been used “as of right” but rather “by right” under s12(1) housing act 1985. the land will not be registered as a tvg. 12 barkas [12] (lord neuberger). 13 barkas court of appeal [2012] ewca civ 1371, [2013] 2 all er 69 [42]. 238 the denning law journal lord neuberger explained that where land has been held under a statutory provision such as s12(1) housing act 1985 the public have always had a statutory right to use the land for recreation and therefore they use the land “by right”. they will not be trespassers and as such there can be no possibility that use “as of right” has taken place.14 in addition his lordship indicated at paragraph twenty one that, assessed objectively, the reasonable local authority in this situation would have regarded any use by the local inhabitants as being pursuant to their statutory right to use the land for recreation.15 following this there can be no question with regards to the acquiescence of the landowner: the landowner (the council) could not prevent the use of the land because it would be unlawful to do so, a priori the landowner is unable to acquiesce in the use and it cannot be “as of right”. this principle is further explored at paragraph twenty four where lord neuberger states that: it is impossible to see how...in the absence of any unusual additional facts, it could be appropriate to infer that members of the public have used the land “as of right” simply because the local authority have not objected to their using the land...it would not merely be understandable why the local authority had not objected to the public use: it would be positively inconsistent with their allocation decision if they had done so. r (beresford) v sunderland city council a major factor for the court to consider was the authority of beresford, which concerned land that had been acquired by the washington development corporation under the wide powers of the new town act 1965, and for no specific purpose. section 3 of the act granted the development corporation the power to “acquire, hold, manage and dispose of land and other property”, “to carry on any business or undertaking”, and “generally do anything necessary or expedient” for the purposes of the new town. furthermore, s21(1) provided that: [a]ny land being, or forming part of, a common, open space... which has been acquired for the purposes of this act... may... be used by 14 barkas [20]-[21]. 15 an observation that has relevance following the indication of lord hoffmann in r v oxfordshire county council, ex p sunningwell parish council [2000] 1 ac 335 (hl), 352h-353a that use “as of right” should be judged by “how the matter would have appeared to the owner of the land”. 239 case commentary them, or by any other person, in any manner in accordance with planning permission section 4 new towns act 1965 defined “open space” as “any land laid out as a public garden, or used for the purposes of public recreation”. when the 1965 act was repealed these provisions were replaced by the new towns act 1981 which had an identical effect. the facts summarised by lord walker at paragraph eighty-nine of beresford detail that the land had been identified in the 1973 new town plan as an area for developing a sports centre that included a swimming pool, football pitch and running track. entry to these facilities would be charged. the field was subsequently grassed over in 1974 and the public continued to use it for recreation, and in 1977 the development corporation organised for the maintenance of the grass and put benches on the land. the land was transferred to the commission for new towns in 1989 and was retained due to its potential for commercial development. when the land was finally transferred to sunderland city council in 1996 it was subject to the covenant that it would only be used for courts or community health, leisure or recreation facilities. sunderland city council, despite making no argument in relation to the provisions of the new town act 1965 and 1981, successfully argued that the land had been used by the public pursuant to a licence. this was overturned by the house of lords which found that there was no express licence granted to use the land, and that there could be no implied licence without an “overt act which is intended to be understood , and is understood, as permission to do something that would otherwise be an act of trespass”.16 the court also invited counsel back to a further hearing to hear argument on whether the public had a statutory right to use the land for recreation, which the court then concluded that they did not. lord walker in particular had reservations over whether the land had been subject to a “formal appropriation...as a recreational open space”.17 the land in question was therefore registered as a tvg. the question for the supreme court in barkas to determine was whether it should apply beresford and find that the field had been used “as of right” for the purposes of village green registration, or whether beresford could be distinguished or overruled entirely. lord neuberger initially indicates at paragraph forty seven that beresford could, and should, be distinguished from the issue in barkas. this can be done on the basis that the field in barkas was acquired and maintained as a 16 beresford [75] (lord walker). 17 beresford [90]. 240 the denning law journal recreation ground under a specific statutory power. conversely, the land in beresford was not acquired or appropriated for any specific use. indeed, the land was not even intended to be used for free public access as it had been identified as a site on which fee charging leisure facilities would be developed. as such, the use could not be characterised as “by right”. lord carnwarth however advocated that while the powers under the new town act 1965 were very wide there was a comprehensive statutory framework in place that addressed the concerns of lord walker regarding a “formal appropriation”. the powers were sufficient to make land available for public recreation pending further development. furthermore, lord carnwarth questioned the comments of lord bingham18 and lord rodger19 in beresford that suggested that encouraging the use of the land by maintaining it and providing benches would not be inconsistent with use “as of right”. his lordship concluded that where the acts of encouragement were done by a local authority they “lend force to the...inference that they are done under...statutory powers”.20 this position was also eventually adopted by lord neuberger later in his speech.21 accordingly, beresford was wrongly decided and should no longer be relied upon. it is however unclear whether this holds true for the entirety of the judgment, and thus the much relied on comments regarding the nature of implied licences in village green law, or whether it applies merely to the consideration of the “by right” issue. comment conceptual uncertainty the tripartite test for use “as of right” is that the use must be nec vi, nec clam and nec precario. it is still unclear post barkas as to whether use “by right” is a sub-species of precario or whether it forms a fourth vitiating factor itself. traditionally the courts had little problem with conceptualising “by right” use as a sub-species of precario.22 this sentiment has now been somewhat 18 beresford [7]. 19 beresford [60]. 20 barkas [82] (lord carnwarth). 21 beresford [88]-[89]. 22 see for example r v secretary of state for the environment ex parte billson [1999] qb 374 (hc) where sullivan j held that use of a common pursuant to s193 law of property act 1925 would not be use “as of right” for the purposes of acquiring a prescriptive right of way because the use was by licence. 241 case commentary challenged by recent court of appeal decisions such as r (newhaven port and properties ltd) v east sussex county council23 where richards lj indicated that use pursuant to a statutory right should be characterised as “by right” rather than a sub-species of precario and use by licence.24 furthermore, it was also expressly stated in the court of appeal proceedings in barkas that there may be instances in which a fourth vitiating factor could be relevant.25 the supreme court failed to give a definitive answer on the proper characterisation of use pursuant to a statutory right in barkas. it was initially indicated by both speeches delivered that “by right” use should be considered as an element of precario use,26 however lord carnwarth then swiftly proceeds to frame his speech within an ““as of right/by right” dichotomy”.27 his lordship goes even further by asserting that the tripartite test is “not always the whole story. nor is the story necessarily the same story for all forms of prescriptive right.”28 it matters how this type of use is characterised because it informs our entire conceptual understanding of the village green. if the tripartite test is no longer sufficient to determine if a landowner, whether public or private, has acquiesced in the use of their land for lawful sports and pastimes then it is unclear what standard should be applied. it does not seem satisfactory to have such a level of ambiguity when rights over land (which is an import economic, social and environmental resource) are being determined. to say that the test is “not always the whole story” or not the same for all prescriptive rights leaves open the possibility of costly litigation to determine where the plot of this story ends. such an assertion also unsettles an ingrained tradition of english law that spans back as far as bracton29 and coke.30 publically owned land it is clear that the possibility of registering local authority land as a village green has dramatically diminished with the acknowledgement that use pursuant to a statutory right will not amount to use “as of right”. it is however clear that public ownership of land will not automatically bar the acquisition of village green status, with cases such as oxfordshire county council v 23 [2013] ewca civ 276, [2014] qb 186. 24 ibid [82]. 25 sullivan lj [38]. 26 barkas [20] (lord neuberger), [51] (lord carnwarth). 27 barkas [58] (lord carnwarth). 28 barkas [58] (lord carnwarth). 29 bracton, lib 2, f 51b, 52a, lib 4, f 22b. 30 co litt 11 3b. 242 the denning law journal oxford city council31 (“oxfordshire”) evidencing this. the question therefore appears to be in what circumstances will land held by a local authority be used by the local inhabitants “by right” as opposed to “as of right”? the answer suggested by lord carnwarth in the supreme court is that for land to be used “by right” it must be “laid out or identified in any way for public recreational use”.32 if this is indeed the test it could still be submitted that the field in barkas does not fulfil it. section 12(1) housing act 1985 denotes three purposes for which the land may be held (buildings adapted for use as shops, recreation grounds and any other beneficial purpose) and therefore the land is not solely laid out for recreation. there is no need for a formal appropriation process between these three uses as the holding power of s12 is consistent (at most all that is needed is a “formal decision”33) and therefore the land is not deemed as being used for another purpose, or ceasing to be used for the statutory purpose for which it is held.34 this objection is partially nullified by the overruling of beresford which now allows for use of the land to be “by right” even if it has been acquired under wide powers and for no specific use. it does however seem quite unsatisfactory that the use of the land can change provided that the new use is still within the scope of the same holding power. it is little wonder why local inhabitants try to register their recreational spaces as a tvg to secure better protection for their use rights. where the distinguishing line lays between cases such as oxfordshire and barkas or beresford is even harder to determine. it would appear that any appropriation of land under a statutory power, no matter how wide, will render the use “by right” provided that laying out the land for recreational use can be construed within the power. this would cover most public parks and land owned by local authorities, and it is probable that the land in oxfordshire was only subject to a successful registration because some twenty five per cent of the surface area of the land is inaccessible; the local authority could hardly have laid this land out for recreation even if they had wanted to. it has recently been suggested that “[i]t would be going very far indeed to suggest that parliament, as a matter of fact, intended public parks to fall within the tvg legislation.”35 this sentiment was shared by lord neuberger 31 [2006] ukhl 25, [2006] 2 ac 674; see also barkas [66] (lord carnwarth). 32 barkas [66]. 33 barkas court of appeal [2012] ewca civ 1371, [2013] 2 all er 69 [42] (sullivan lj). 34 applying sullivan lj in barkas court of appeal [2012] ewca civ 1371, [2013] 2 all er 69 [43]. 35 leslie blohm, “the “by right” doctrine and village green applicationsa response” [2014] 1 conv 40, 51. 243 case commentary in barkas.36 it can be argued that tvg registration cannot be reconciled with the power of local authorities to hold land for the purposes of recreation. parliament allows local authorities to change the purposes for which they hold the land under the mechanism of s122 local government act 1972 depending on the needs and interests of the local community at any given time. it would seem highly peculiar that this power could then be impeded simply because they had held the land for recreational purposes for the twenty years required for village green registration. policy considerations the decision of the supreme court in barkas is another firm indication as to the policy concerns surrounding village green registration. land that is registered as a village green is protected in the sense that it prevents any use of the land that is inconsistent with the recreational rights conferred on the local inhabitants. this hinders the economic value of the land and sterilises it in terms of development and commercial investment. the introduction of the “trigger events” that bar registration, as discussed earlier, will automatically preclude most attempts at registration when it is considered that a sizeable portion of applications have been to prevent development on open spaces. local authorities holding land for the purposes of recreation, and the right of the public to use these, does not give the public the same permanence and stability of right that is conferred upon tvg registration. the flexibility in allowing for the appropriation of the land to an alternative use, which can no longer be defeated by village green registration, is more favourable to an expanding economy that is seeking to extract the maximimum economic value from natural resources such as land. creating a class of land that cannot be registered as a village green makes available this valuable resource for purposes other than recreation. conclusion to summarise, there is still some uncertainty as to when it can be inferred that land has been appropriated and laid out for recreational use by the local authority. one thing is however abundantly clear: in an era of economic growth the “village green industry”37 is in decline. the additional protection 36 barkas [24]. 37 r (lewis) v redcar and cleveland borough council and another [2010] uksc 11, [2010] 2 ac 70 [48] (lord walker); see also rowena meager, “the ‘village green industry’: back in business” (2010) 69(2) clj 238. 244 the denning law journal afforded to local authority land post barkas, coupled with the recent amendments to the commons registration act 2006 by the growth and infrastructure act 2013, clearly tips the balance in favour of the development of land and the economic aim of sustainable development.38 38 similar arguments are made in light of the decision in adamson and others v paddico (267) limited [2014] uksc 7, [2014] 2 wlr 300 see natalie pratt, “the application of the equitable doctrine of laches to the rectification of the town and village green register” [2014] 6 journal of planning and environment law 588, 595 245 introduction context facts issue decision r (beresford) v sunderland city council comment conceptual uncertainty publically owned land policy considerations paying judges: why, who, whom, how much the denning law journal 1 paying judges: why, who, whom, how much? neill lecture 2006 michael j beloff qc* my lords, ladies and gentlemen, it is a great privilege for me to be invited to deliver the 5th neill lecture following in the footsteps of such legal giants of our time as lord bingham of cornhill, lord woolf of barnes, lord steyn and lord hoffman, just as the page followed in the footsteps of good king wenceslas in the snowy wastes of bohemia.1 after four aces the fellows of all souls have clearly opted to play the joker. pat neill, the honorand, is fit to be ranked with tom and harry, not to speak of johann and lenny, in the annals of the law although he abstained from taking judicial appointment in this country. instead, like a modern pooh bear, he became lord high everything else, notably – i make a judicious selection warden of all souls, vice chancellor of oxford university, chairman of the press council, chairman of the committee of standards in public life and treasurer of gray’s inn. my path has crossed with pat’s at several junctures. we appeared against each other in court, most memorably in a case in the privy council ng enterprises v urban council,2 which involved an issue of major constitutional importance, namely whether my client could continue to sell “mister softie” ice cream in hong kong from mobile vans. there were no mr softies in the privy council and they acceded unanimously to pat’s argument that regulation of an activity could sometimes, if not always, include its outright prohibition. when vice chancellor of oxford, pat invited me to chair a committee which investigated a unique piece of alleged plagiarism in a thesis submitted * ma (oxon) frsa, ficpd, fass, hon d lit hum (fairleigh dickinson), president of trinity college, oxford, senior ordinary appeal judge of jersey and guernsey, master of the bench of gray’s inn, vice-chairman of the information tribunal, member of the court of arbitration for sport, honorary fellow institute of advanced legal studies. 1 i must thank lord justice thomas, mr justice breyer (usa), mr justice van zyl (sa), malcolm holmes, qc (australia), pathma selvadurai (singapore), timothy castle, (new zealand), dr charles parkinson (australia), joanna innes (fellow of somerville), and john baker, chairman of the ssrb for their assistance in obtaining material for this lecture, delivered under the auspices of all souls college in the examination schools at oxford university on the 27th january 2006. 2 1997 ac 168. the denning law journal 2 and approved by this university for the degree of doctor of philosophy in the field of public international law. our report determined that the charge was, alas, made out; but pat’s successor prevailed upon us not to give wide currency to our conclusion since it showed that the system was as potentially vulnerable to fraud as are postal ballots at municipal elections, and opened up vistas of headlines in the mail on sunday “the dumbing down of the doctorate”. finally i followed pat in what is now becoming the oxford ‘head of house’ slot in the appellate courts of jersey and guernsey, if a sequence of two can create a precedent, in the same way as certain places have become reserved to members of particular ethnic groups or genders on the supreme court of the united states of america, a tribunal which enjoys a somewhat more extensive jurisdiction. i should add, before warming to my theme, that i understand that in recognition of pat’s abilities as a pianist, this lecture takes place only on alternate years, the intervening ones being the occasion for a concert. i make no great – or indeed any – claims to the merits of my address, but i can say with a supreme measure of confidence that it will at any rate be better than my performance on the piano. it is axiomatic, so halsbury recites, that “the independence of the judiciary is essential to the rule of law and to the continuance of its own authority and legitimacy.”3 some of the mechanisms to ensure this are historic, for example security of tenure: others more modern i.e. prospective appointments by a judicial appointments commission. the principle that judicial salaries may be increased by administrative action, but may not be reduced except, presumably, by act of parliament4 has its origins in the act of settlement 1701 and has been linked with immunity from removal as one of the guarantors of such independence.5 in a decision last year in the sensitive area of immigration control r (on the application of g) v immigration appeal tribunal, lord phillips of worth matravers, then master of the rolls, and now lord chief justice, said expressly: 3 halsbury’s laws 4th edn reissue, vol 8(2) para 303. 4 supreme court act 1981, s 12(3); administration of justice act 1973, s 9(1)(3); halsbury’s statutes, vol 11 1057; courts act 1971, s 18(2) halsbury’s statutes, vol 11, 968; county courts act 1984, s 6(1); halsbury’s statutes, vol 11, 708. 5 see also woodhouse the office of lord chancellor (oxford: hart, 2001) p 26; s finer, v bogdanor, b rudden comparing constitutions (oxford: clarendon press, 1995) p 89. viscount birkenhead, “judges and politics” in points of view vol ii (london: hodder and stoughton, 1922) pp 161-2. the denning law journal 3 “it is the role of the judges to preserve the rule of law. the importance of that role has long been recognised by the parliament. it is a constitutional norm recognised by statutory provisions that protect the independence of the judiciary such as sections 11 and 12 of the supreme court of 1981.”6 which are the recent descendants of the act of settlement. the same norm is now enshrined in the constitutional reform act 2005 s 34(4). a more sonorous reference to the original statute featured in a speech by one of lord phillip’s predecessors on a less formal occasion – a provincial law society dinner in hastings in 1935, when lord hewart said: “it might be useful sometimes to remind persons who have forgotten, or who never knew, that there is still in existence an instrument called the act of settlement, and that the independence of judges is the protection of the people.”7 that speech incidentally forms part of a collection of ephemera by that less than radical figure entitled “not without prejudice” – an all but unrivalled example of lawyerly meiosis. the principle that judges’ pay should not be diminished while they hold office is reflected in the constitutions and laws of many jurisdictions, not all of which are based on the common law, such as brazil,8 egypt9 and japan10 as well as in common law based jurisdictions, such as the usa,11 6 [2005] 2 all er 165 at 173, para 12. 7 lord hewart “her majesty’s judges” in not without prejudice (london: hutchinson, 1937) p 240. 8 the constitution of the federation of the republic of brazil 1988 provides at article 95, iii: “judges enjoy the following guarantees … iii irreducibility of earnings.” on salaries see professor celso agricola barbi in professor shetreet and jules deschênes “judicial independence: the contemporary debate”: (leiden: martinus nijhoff publishers, 1985) (“sd”) ch 6 at p 53, and generally m g ferreira filho “fundamental aspects of the 1988 constitution” in j dolinger and k rosenn (eds) a panorama of brazilian law (university of miami, 1992). 9 the independence of the judiciary is constitutionally guaranteed, including special rates as to salary in the constitution 1971 (amended 1980): see chapter 12 at p 198 and 323 “egypt and its laws” in n bernad-maugison and b dupret (eds) (kluwer law international, 2002). 10 the constitution provides at art 80 para 12: “the judges ... shall receive adequate compensation which shall not be decreased during their term of office.” 11 the us constitution provides at art iii.i that all judges shall “at stated times receive for their services a compensation which shall not be diminished during their continuance in office.” the denning law journal 4 bangladesh,12 india,13 australia,14 canada,15 ghana,16 ireland,17 new zealand,18 malta19 and singapore20 indeed generally throughout the new commonwealth where constitutions retained their original westminster hallmark.21 however, the principle is not universal. in finland there is no law to that effect; an academic commentator noted: “there are no regulations against decreasing salaries” adding somewhat primly, “but it is out of the question and no one has, perhaps, even thought about it” – and more primly still, “a 12 the constitution of bangladesh provides under article 147 that there shall be no diminution in salary during term of office, see “bangladesh constitution trends and issues.”justice mustafa kamal, dhaka up p 32. cf: mubaleb: “bangladesh” ch 4: sd p 40. 13 the constitution of india (1949) provides at article 125: (1) there shall be paid to the judges of the supreme court such salaries as may be determined by parliament by law ... (2) ... provided that neither the privileges nor the allowance of a judge nor his right in respect of ... pension should be varied to this disadvantage after his appointment. see generally h k sahoray the constitution of india: an analytical appraisal (eastern law house, 2nd ed, 1997) pp 353-4, citing analogies from elsewhere. 14 commonwealth of australia constitution act 1900 s 72(ii) provides that the justices of the high court created by parliament “shall receive such remuneration as parliament may fix: but the remuneration shall not be diminished during their continuance in office.” 15 british north america act 1807 s 100. the position that salaries be “fixed and provided for” by parliament “protects the judiciary from executive power to impair judicial independence by reductions or raises of salary”: see hogg constitutional law of canada (carswell, 4th edn, 1997) p 172. see also w r lederman “the independence of the judiciary” 1956 canadian bar review xxxiv 1139 at 11631166 (“lederman”). 16 constitution of ghana 1960 art 46: “no judge may suffer a diminution in salary while he remains in office.” bennion the constitutional law of ghana (london: butterworths, 1962). see also enwah e kom “ghana” sd chapter 9 p 76. 17 in ireland, article 35.5 of the constitution has been held to require that judges should receive salaries and pension benefits which are appropriate “otherwise the independence of judges will be undermined.” (mcmenamin v ireland 1994 in the law reports monthly vol 2 p 368 per geoghan j at p 377). 18 constitution act 1986 part iv section 24: “the salary of a high court judge is not to be reduced during the continuance of the commission of the judge.” 19 the constitution of malta provides that salaries of judges “shall not be reduced”, article 110(3): see j m ganado “malta” sd chapter 20 p 237. 20 the constitution of the republic of singapore 1996 s 98(8): “the remuneration and other terms of office (including pension rights) of a judge of the supreme court shall not be altered to his disadvantage after his appointment.” 21 s a de smith the new commonwealth and its constitutions (stevens, 1964) p 139. the denning law journal 5 judicial proceeding is not the way to solve problems relating to salaries.”22 norway,23 italy,24 portugal,25 spain,26 uganda,27 uruguay,28 france29 and greece30 supply other examples of the principle’s exclusion. in israel the basic law:31 provides that a reduction in judicial salaries may be made only if it does not apply solely to such salaries in the public sector.32 in germany the basic law33 stipulates that, in the extraordinary event of changes in the structure of courts, judges may be transferred or removed “provided they retain their full salary”, but in ordinary circumstances judges’ salaries are linked to the annual rate of inflation in the same way as the pay of other civil servants. in russia too there is no such guarantee.34 china is another notable exception.35 a standard commentary refers to “the relatively low social and 22 prof irma lager “finland” sd chapter 7 p 58. 23 prof haakon l haraldson “norway” sd chapter 23 p 270. 24 prof a pizzorusso “italy” sd chapter 17 p 199: “there is a fixed system of indexation of judicial salaries. there is no express provision prohibiting decreases in judicial salaries but such an occurrence is virtually unthinkable.” 25 alexander m pessoa vaz “portugal” sd chapter 24 p 280. 26 prof a beltran pelayo “spain” sd chapter 26 p 320: “there is no constitutional provision concerned with judicial salaries.” 27 joseph m n kakooza “uganda” sd chapter 28 p 248: “there is no constitutional provisional against decreasing judicial salaries, although it is suggested that it is implicit in arrangements for their payment out of the consolidated fund that they should not be.” 28 prof e vescovi: “uruguay” sd chapter 30 p 377. 29 e grivart de kerstrat: “france” sd chapter 8 pp 65-6. in france judicial salaries are determined by central administration according to seniority and rank. hence “a reduction in salaries may be obtained only through judicial proceedings” p 66. 30 professor d kerameus “greece” sd chapter 13 pp 131-2. in greece, art 83.ii of the constitution provides “the remuneration of judicial functionaries shall be commensurate with their office. matters concerning their rank, remuneration and general status shall be regulated by special laws.” this has not availed judges in their claims for higher salaries. 31 adjudication s11 no 1110 (a&y). 32 shimon shetreet justice in israel: a study of the israeli judiciary (leiden: martinus nijhoff publishers, 1994) (“shetreet: israel”) p 160. 33 article 97(2) on the independence of judges. 34 the constitution of russia says the following only in art 124: “the financing of the courts shall be effected solely from the federal budget and must ensure the possibility of the full and independent administration of justice in accordance with federal law.” 35 j minen laws in the people’s republic of china (leiden: martinus nijhoff, 1982). the prc constitution: section viii says nothing about salary although article 126 the denning law journal 6 bureaucratic status and pay of the prc judges.”36 ominously article 93 of the basic law of the hong kong sar confirms only the irreducibility of present pay and allowances for judges who served at the time of the handback. no similar provision is made for subsequent appointees. it has been bleakly observed: “there is no guarantee that salaries or other benefits of subsequent appointees would not be reduced).”37 in other countries the principle, once applicable, has been abandoned. in sweden the constitution was modified in 1966 to allow for such reduction:38 likewise in belgium in 1980.39 in the netherlands indeed, where law also fixes the salaries of judges, it is expressly provided that “the legislature can reduce judicial salaries”.40 nor is this altogether surprising. the common ground identified in international instruments, such as the iba code of minimum standards of judicial independence, is that judges salaries can be reduced only as part of an overall economic package, not that they cannot be reduced at all.41 so whereas, in england, we consider the principle of the protection of judicial salaries to be a necessary but not, of course, a sufficient guarantee of judicial independence, in the wider world it is not always seen as necessary. i wish to explore the prehistory of the domestic principle, its development from the act of settlement onwards, its rationale, and the contemporary issues surrounding judicial pay in this country. the inspiration for any form of judicial payment was rooted in the consideration that judges who were not paid could be bought. wilfred prest states that: “the people’s court shall, in accordance with the law, exercise judicial power independently.” 36 ibid, at p 97. 37 yash ghai hong kong’s new constitutional order (hong kong university press, 1992) p 293. 38 judge andres andersson “sweden” sd chapter 27 p 341. 39 professor storme “belgium” sd chapter 5 p 43. 40 bj van heyst “the netherlands” sd chapter 21 p 240. 41 iba code of minimum standards of judicial independence (1982) article 15(a): “the position of judges, their independence, their security, and their adequate remuneration shall be secured by law.” see also s 15(b): “judicial salaries cannot be decreased during the judges except as a coherent part of an overall public economic measure” please also note that to like effect is the montreal universal declaration on the independence of justices: article 2.21 (c). the denning law journal 7 has written “the spectre of judicial corruption haunted the west from classical times onwards.”42 corruption was certainly a problem in england during the reign of henry iii when, in holdsworth’s words, all royal officials, judges included, were “both poorly and irregularly paid.”43 the short lived provisions of oxford in 1258 were introduced to ensure that the chief justiciary: “takes nothing unless it be presents of bread and wine, and such things, to wit food and drink, as have been used to be brought to the tables of great men.” 44 the oath administered to newly appointed justices of the courts of king bench, exchequer and common pleas from 1344 onwards included an undertaking to abstain from receipt of gifts “except meat and drink and that of small value” at the same time a promise to “do equal law and execution of right to all … rich or poor,”45 whose value, if not vocabulary, has persisted into modern times. the history of judges pay prior to the act of settlement has been recounted, amongst other places, with characteristic detail and humour – as befits a trinity graduate in an article by theobald mathew,46 who identified as his chief source of information sir william dugdale’s origines juridiciales. the records begin in the xith year of henry iii when william insula and r, ducket, kings justices received “x (ten) marks” (a mark being 13 shillings and 4 pence if i may cross-refer to another obsolete currency) each out of the exchequer.47 the trend was generally upward although there was shrinkage in the reign of edward iii in the salary of the chief justice of the kings bench division.48 in the reign of henry vi judges were required to pay taxes on their income for the first time: mathew comments “this novel and disagreeable demand was probably the explanation of the subsequent raising of judicial salaries.”49 during the reign of elizabeth i, the lord chief justice in 42 wilfrid prest “judicial corruption in early modern england” past and present no 133, 62. 43 holdsworth history of english law vol ii pp 294-295. 44 prest p 71. 45 ibid. 46 mathew for lawyers and others (hodge, 1937), chapter entitled “judicial salaries” pp 71-87. 47 ibid p 71. 48 ibid p 72. 49 ibid p 73. the denning law journal 8 england was paid for reward and robes £208.68, wyne: 2 tonnes at £5 per tonne: £10.00, allowance for being justice of assise: £20.00.50 the assessment of the judges for taxation purposes in the reign of henry viii shows however that they had sources of income apart from official pay: presents, fees, perquisites51 under a system “in full swing” as mathew puts it “during the sixteenth century.”52 the right to sell legal office, or to bestow it on some penurious relation was prime among them. the lord chancellor up to time of lord eldon in the nineteenth century had a surfeit of sinecures to bestow. mathew dwells with palpable relish on the exotic nature of these creatures inhabiting the undergrowth of the law in a kind of legal bestiary: the keeper of her majesty’s hanaper, the clerk of the custodies of lunatics and idiots, the prothonotary of the court of chancery, chaffwax, whose duty it was to bring the wax to the proper state of liquefaction when the government seal was in use. as mathew comments wryly: “these posts were alike in two respects – the emoluments were large and the duties could be performed by a deputy.”53 the offices in the gift of the chief justices were fewer, but by no means insignificant.54 but even these benefits were perceived as insufficient to make bribes otiose and in sixteenth and early seventeenth century the satire directed at the judiciary increased.55 in the middle of the 16th century bishop hugh latimer had inveighed against judicial bribe taking.56 curiously, the reputation of chancery judges was inferior to that of their common law counterparts, as they sat solo and without juries and did not take the common law oath.57 as prest puts it “by the reign of james i the inflation stricken salaries for judges in the three ancient common law courts hardly provided a significant deterrent to impropriety.”58 bacon’s fall from office as lord chancellor in 1621 for accepting gifts from litigants is not the only, if it is the best-known, example of judicial corruption. in 1641 the charges on which lord keeper finch was impeached included two for such corruption, which 50 ibid p 74. 51 ibid p 74. 52 ibid p 74. 53 ibid p 75. 54 ibid pp 76-78. 55 prest p 74. 56 prest p 79. 57 prest pp 79-81. 58 prest p 77. the denning law journal 9 dated back to the time when he was chief justice of the court of common pleas.59 in the same year, 1641, the house of commons ordered john pym to include in the grand remonstrance a clause attacking the buying and selling of judicial office as “being among the causes and remedies of the evils of this kingdom”. the remedy for judicial corruption was perceived to be adequate pay for judges out of public revenue openly declared.60 in september 1645 a massive 500% increase from under £200 to the £1,000 pa in the salaries of the common law judges was effected by resolution of the house of commons. in present day values the uplift was from approximately £23,000 to approximately £116,000.61 prest suggests that the increase in financial provision after 1645 was of “prime importance” in improving judicial integrity.62 but the restraint on judges supplementing their salaries with fees was expressly abandoned in january 1660, even before the restoration, “the important if unforeseen result” adds prest, “was that post 1660 judicial income did not fall quite so far behind those of leading counsel as they might otherwise have done.”63 however, payments remained at the same level until the judges’ next pay rise in the next century. the day after the house of commons resolved that james ii had abdicated in 1688, the parliamentary committee drew up its agreement to be presented to a new king, which contained provisions for security of tenure and for payment of judges’ salaries out of the public revenue only. these provisions, however, did not appear in the bill of rights 1688.64 and in 1693 in bridgman v holt three puisne judges of the court of kings’ bench, faithful to the old ways, upheld the right of their chief justice to the very valuable sinecure office of chief clerk of the kings’ bench.65 but in 1701 the act of settlement, as i have already indicated, gave judges secure tenure and secure pay. it provided: 59 brooke lj “judicial independence – its history in england and wales” p 7. lecture www.judiciary.gov.uk 60 ibid. 61 prest p 83. 62 the conversion throughout using the retailers index is based on website http:/eh.nat/limit/power. i have rounded the precise figures up or down to the nearest thousand pounds. 63 prest p 83. 64 brooke p 6. 65 brooke p 9; bridgman v holt (1693) shower p c 111. the denning law journal 10 “judges commission to be made quam diu se bene gesserit and their salaries ascertained and established.”66 then interpreted to mean that judicial salaries should be fixed by parliament and not left to the discretion of the executive.67 gn clark notes in his volume in the oxford history of england: “it should be simply regarded as the formal termination of that control of judges by the executive which had died with the stuart system. it removed the possibility of a new attempt to subject judges to royal control: judicial independence has been a central fact of the constitution from the fall of james ii.” 68 nonetheless in the early 18th century judicial salaries still frequently ran up to 3 terms in arrears69 and while increasingly stringent ethical sensibilities percolated among the common law judiciary from 1650 onwards, the practices of judicial favouritism, receipt of fees and sale of legal offices persisted long after.70 lord chancellor macclesfield increased the honorarium charged by his predecessor for the sale of the chancery masterships by so much that the newly appointed masters felt obliged to recoup the premiums they had had to pay from the litigants who appeared before them. in 1724 the same lord chancellor was duly impeached, convicted and fined £30,000.71 at the end of the seventeenth century the salaries of the puisne judges were £1,000 per year (approximately £118,000 in present day values) complemented by an equivalent amount of fees. although the salaries were increased in 1714, 1760, described as “noble improvements” by no less a 66 costin and watson the law and working of the constitution vol i 1660-1783 (a c black, 1952) p 92-96. “the act is part of written constitutional law” in barendt an introduction to constitutional law (oxford: oup, 1995). 67 bradley and ewing constitutional and administrative law (london: longman, 13th edn, 2003) p 371. they are nowadays charged on the consolidated fund as among those payments which “for constitutional reasons are considered inappropriate for annual authorisations by parliament” (p 35). 68 clark the later stuarts (oxford: clarendon press, 1934) p 184. 69 prest p 87. 70 prest p 92. see also holdsworth “the constitutional position of the judges” (1936) 48 lqr 25, at 33. 71 see from office holding to civil service: the genesis of modern bureaucracy by g e aylmer trhs 198. the denning law journal 11 figure than blackstone72 1779, 1799 and 1809,73 while the value of money diminished, the problems of extra-curricular remuneration remained.74 two further developments were noteworthy. first the rule was established that, unless parliament had provided (or promised) a salary no judicial vacancy could be filled.75 secondly, judicial salaries were charged to the consolidated fund, created in 1767,76 so further protecting judges against the vagaries of politicians. in 1815 puisne judges were paid £240077 (approximately £135,000 in present day values), but still drew much of their income from fees78 something that, according to the former chief justice of australia, sir anthony mason in a throw away line in a judgment concerned with cycling selection procedures for the sydney olympic games, explained the longstanding judicial opposition to arbitration. “as formally the emoluments of judges depended mainly or almost entirely upon fees, and they had no fixed salary there was great competition to get as much litigation as possible into westminster hall for the division of the spoils. therefore they saw that the courts ought not to be ousted from their jurisdiction and that it was contrary to the policy of the old law.” 79 in 1826 two chiefs lost the whole of their patronage and fixed, enhanced compensatory, but above all tax-free salaries replaced old method of remuneration,80 with a range from the chief justice of kings bench at £10,000 per annum through to judges and barons £5,50081 an enviable £346,000 in present day values notwithstanding the opposition from some, on one flank, who regarded the power to dispose of offices as a necessary 72 blackstone commentaries on the law of england pp 267-8. 73 “the high costs of living brought about by the war was the ground put forward for the passing of this statute: and the fact that judges were now subject to a heavy income tax (10%), as well as a land tax was an additional reason for improving their financial positions”: mathew p 80. 74 brooke pp 9-10, holdsworth history of english law vol i pp 253-255. 75 see buckley v edwards 1892 ac 387, at pp 392-393 (a case from new zealand). 76 lederman p 769, pp 792-793. 77 holdsworth lqr p 33. 78 prest p 87. 79 raguz v sulhivan (2000) 50 nswr 236, at para 47. 80 mathew p 81; holdsworth lqr p 33. 81 mathew pp 82-83. the denning law journal 12 prerogative of a chief justice, and on the other the radical brougham, but for whose oratory the basic figure would have been £6,000. this tax free annual salary was trimmed to £5,000 – still no pittance at £338,000 in present day values in 1832,82 the same year in which the lord chancellor lost his sinecures83 but not, for reasons of constitutional propriety, of those already appointed at the higher salary. it remained at that level (astonishingly) for over 100 years. in 1851 by the court of chancery act the salary of the master of the rolls was fixed at £6,000: and those of two new judges of the court of appeal in chancery at the same sum, but when in 1873 the number of lord justices was increased to 5 the salary was lowered to £5,000.84 the judges, consulted on whether the newly titled lords justices should be distinguished from mere puisnes by a further £500 per annum or by a privy councillorship, preferred glory over gold.85 gladstone’s efforts to cut judicial salaries in his first administration was resisted by the judges who refused to discuss the forthcoming judicature bill while such a threat existed, chief justice bovill of common pleas arguing that: “since judges salaries were fixed, everything especially house rents, servants and horses have become much more expensive.”86 their salaries were, however, confirmed to be subjected to income tax in judicature act 1873 following on the income tax act 1842. the privy council later opined in a canadian case in 1937 – with what suppressed reluctance i can only speculate – “neither the independence nor any other attribute of the judiciary can be affected by a general income tax which charges their official incomes on the same footing as the incomes of other citizens.”87 it is arguable that during 19th century the real value of the high court judges salary did not decline, but it is indisputable that there was a dramatic increase of 250% in the cost of living between 1900-1920 so that, when tax 82 mathew p 84, holdsworth lqr p 33. 83 mathew p 84. 84 mathew p 87. 85 mathew p 87. 86 robert stevens the english judge (oxford: hart, 2002) p 81. 87 the judges xg of saskatchewan (1937) 58 ltr 464, at 466. the denning law journal 13 was taken into account, judges, in the view of that most sapient and learned diagnostician of the judicial condition, the former master of pembroke, robert stevens “really were suffering serious diminution in status.”88 lord birkenhead, lord chancellor from 1920-1922, himself a notorious over-spender,89 was sympathetic to high court judges; but the governments of which he was a member were not persuaded to favour increases since the average earnings of qc’s in 1920-21 were £6,814 whereas judges had not only their £5,000 pa but also an attractive non contributory pension, a knighthood and concomitant prestige.90 the 1920’s were indeed a time when high court judges did not question their salaries or pension since the cost of living was dropping and the bar’s prosperity was at best erratic.91 but the great crash at the turn of the next decade reverberated inside, as it did outside, the courts. the national economy act 1931 authorised crown by order in council to make economies in remuneration of persons in the service of the crown and it reduced by 20% salaries of judges which had been, i repeat, been static at £5,000 pa since 1832 and were worth in present day values £220,000. by that time the only judges who received more than £5000 (less income tax) were the lord chief justice (£8,000) the master of the rolls (£6,000) and the six lords of appeal (£6,000). mathew commented sadly: “it is melancholy to realise that the judges, with a salary of £5,000 diminished by 20% and the deductions of tax and surtax were worse off than they were in 1799 when they had £3,000 pa “free and clear of all taxes and deductions whatever.”92 a deputation of judges complained to lord chancellor sankey who in consequence addressed the cabinet with the following plea: “i must point out that their (i.e. the judges) prestige will be lowered. they will be addressed in court by leaders of the 88 robert stevens the independence of the judiciary (oxford: clarendon press, 1993) pp 44-47; on county court salaries 1878-1937, p 507. see the classic biography by john campbell fe smith: first earl of birkenhead (london: jonathan cape, 1983). 89 first earl of birkenhead, ibid. 90 stevens: independence p 51. 91 ibid p 52. 92 mathew p 87. mathew’s figures are discrepant with those of holdsworth: see holdsworth lqr p 33. the denning law journal 14 bar who sometimes make it 2 or 3 days as much as a judge makes in a year.”93 plus ca change! there were threats of resignation, and representations which ranged from the dignified to the extreme such as those of mr justice mccardie who spoke of “pecuniary sacrifice to which there is no parallel in the world”; of mr justice mcnaughten who said that “the judges were now in the power of civil servants and he considered his position was no better than that of an office boy” adding as a final thrust “at the home office” and of mr justice maugham who complained that the judges had been treated “as if they were policemen or postmen,”94 with few exceptions, the vehemence with which judges expressed their views was in inverse proportion to their judicial reputation. there was talk of a petition of right, raising the interesting issue of the reach of the principle nemo judex in causa sua. the government had a defensive bill drawn up by george schuster, the lord chancellor’s permanent secretary who wrote to the parliamentary draftsmen with the cunning of a machiavelli, even of a mandelson, “begin with a recital which should be as long and pompous as possible, asserting the independence and all the rest of it, negating any idea that the economy act or order by council affected that in any way ... then declare that notwithstanding all this they are affected by the cut.” 95 academics entered the fray. sir william holdsworth proposed that judges’ salaries be made tax-free but ventured, additionally, the observation that on its true construction, the national economy act did not apply to judges at all who were not “persons in his majesty’s service.”96 professor sir william wade qc has since expressed a contrary view97 shared by his no less eminent namesake professor e s c wade. in that clash of the titans i prefer the views of the junior sir william.98 service takes many forms. its 93 stevens: independence pp 52-63. charles mowat britain between the wars (london: methuen, 1955) pp 402-406. 94 stevens: independence pp 54-56. 95 stevens: judge p 24. 96 holdsworth pp 25-36. 97 stevens: independence pp 61-2. 98 wade and forsyth administrative law (oxford: oup, 9th edn, 2004) (“wade”) pp 67-9. supported by professor e s c wade 173 law times 246 and 267 reply by holdsworth p 336. the denning law journal 15 meaning in public law differs from that in private law. and to suppose that the wade analysis threatens their independence is truly to elevate form above substance. in the end the judges did not strike strikes are left to the modern criminal bar and in 1934 the judges’ salaries were quickly restored.99 schuster’s biographers have written “looking back on this convoluted conflict as a piece of legal history, it is clear that judges who protested were concerned about money rather than constitutional principle.”100 i should add that the invergordon mutiny in 1931 resulted in a government commitment that no salary reductions for servicemen, police or teachers would exceed 10%, proving, if nothing else, that politicians were – and doubtless still are more fearful of revolt among the british navy than among the british judiciary.101 in the post-world war ii years under both labour and conservative administrations, issues about the scale of judicial salaries continued to surface, but the time for an increase never seemed ripe: egalitarianism and economics both militated against it. not until 1954 was there an uplift from £5,000 to £8,000, about £143,000 in present day values. lord maugham, the ex lord chancellor as the former mr justice maugham had by now become, was as querulous in the fifties as he had been in the thirties, suggesting that for a judge on the net salary “it is impossible to support a wife and children with dignity and to send his sons to public school” – an observation whose unspoken premises could justify a thesis in itself. by 1960 the cost of living had risen 400% since 1913/14, high court salaries by only 60%, and the rate of tax had grow’d like topsy.102 in real terms judges’ salaries had peaked more than a century and a half earlier, and were on an accelerating downward curve. to hasten this brief history to its conclusion, the judicial remuneration act 1965 provided that judges pay could be increased, but not reduced, by order in council with concurrence of both houses of parliament. it also raised high court judges’ salaries to £10,000, £126,000 in present day values. the administration of justice act 1973 authorised the lord chancellor acting with approval of the prime minister to increase judicial salaries in the light of (but not bound by) the recommendation of the top salaries review board (established in 1971) to give the review body on senior salaries its original and strikingly politically incorrect appellation. (i note, however, that similar sentiments have led the new zealand equivalent, previously the higher 99 stevens: independence p 63. 100 jean graham hall and douglas f martin yes lord chancellor, a biography of lord schuster (chichester: barry rose, 2003) pp 129-139. 101 r bassett the invergordon mutin 931 (london: macmillan, 1955) pp 234-236. y 1 102 stevens: independence chapter 2. the denning law journal 16 salaries commission, to be re-titled more neutrally the remuneration authority).103 as a by-product of this new regime, which had switched ultimate control from legislature to executive, in 1972 a high court judge salary became £15,570 (worth £134,000 in present day values). there were pleas in 2005 for further up lift of judicial salaries which had taken place over the intervening three decades more in fits and starts than in smooth curve and now for a high court judge amounted to £155,404.104 103 the remuneration authority (members of parliament) amendment act 2002. 104 table: high court judges: year recommended salary increase 1972 £15,750 1973 £16,000 (1.6%) 1974 £16,350 (2.2%) 1975 £21,000 (28.4%) 1976 1977 1978 £26,000 (23.8%) 1979 £28,500 (9.6%) 1980 £35,000 (22.8%) 1981 1982 £45,000 (28.6%) 1983 £48,000 (6.7%) 1984 £51,250 (6.8%) 1985 £60,000 (17.1%) 1986 £63,500 (5.8%) 1987 £65,000 (2.4%) 1988 £68,500 (5.4%) 1989 £72,000 (5.1%) 1990 £77,000 (6.9%) 1991 £84,250 (9.4%) 1992 £100,000 (18.7%) 1993 £90,148 (-9.9%)* 1994 £96,543 (7.1%) 1995 £100,511 2.5% (4.1%) 1996 £106,071 3.9% (5.5%) 1997 £113,770 (7.3%) 1998 £119,600 3.5% 1999 £123,787 3.5% 2000 £127,872 3.3% 2001 £132,603 3.7% 2002 £143,258 8.0% 2003 £147,198 2.75% 2004 £150,878 2.5% 2005 £155,404 3.0% the denning law journal 17 when it was realised that the lord chancellor would inevitably fail to persuade parliament to enact a judicial pensions bill designed to exempt judges from the legislation in force in april of this year which will impose a lifetime limit of £1.5 million on the tax relief allowed on pension benefits. the judges asserted that since their pensions position was statutory, they were, in the words of lord woolf, the then lord chief justice, “excluded from opportunities available to other professionals to take action to protect themselves against the new legislation”105 and that the forthcoming cap breached the legitimate expectation that they had entertained in accepting judicial appointment. moreover, the convention is that judges cannot (unlike in some other countries) return to the bar – although it is rumoured that an opinion obtained by a former lord chancellor can point to no legal foundation for it so depriving them of the one post-judicial career for which they are most obviously suited. the parliamentary arithmetic suggested that were such a bill, positively discriminatory in favour of the judges, to be introduced, it would fail to attract sufficient support among blairites, cameroons, lib dems and certainly old labour and a quid pro quo of a 20% salary uplift, only obtained twice in the last 30 years could logically be anticipated, to engender similar objections. it was reported that judges were ready to take legal action and had instructed pension specialist counsel to advise.106 some had even (it was rumoured) threatened to resign.107 the new concordat between executive and judiciary, brokered by lord woolf and lord falconer seemed fragile. *the salaries vary from the actual salaries in payment due to the staging of awards – either mid-year as in 1977 and 1988 or over a number of years, as in 2002. the salary position between 1991 and 1993 followed the government’s rejection of the ssrb’s recommendations in 1992 cm 2015 (july 1992) para 137. the actual salaries paid were as follows: 1 april 1991 £82,800 1 december 1991 £84,250 1 april 1992 £87,620 1 april 1993 £90,148 source: ssrb reports. table provided to me through the good offices of andrea prophet, ssrb secretariat. this contrasts incidentally with a median pre appointment income = £166,200 (april 1991) and mean pre appointment income = £227,300 (april 1991). 105 interview with frances gibb in “judges threaten to resign over pensions losses” the times october 6th 2005. 106 francis gibb the times november 7th 2005, based on a story in the lawyer. 107 frances gibb “judges threaten to resign over pension losses” the times october 6th 2005. the denning law journal 18 and then on 15 december 2005 lord chancellor, donning the seasonal garb of santa claus, announced that he would spend an extra £9 million a year on judges’ pay and pensions108 in a complex package whose provisions, announced in parliament and on the website without the usual illuminating concomitant explanatory statement or interview, were capable of being understood, save for the concept of a long service award for judges nearing retirement, only by revenue specialists, as illustrated by the diverse descriptions of its elements in the serious press.109 this was government not too much by spin as by stealth, but as in 1931, so in 2005, by an act of political legerdemain, a constitutional crisis was averted. but england is not the only country where controversy has erupted over judicial pay. in israel there have been several skirmishes. during the mandate period the courts ordinance 1940 had authorised the high commissioner to fix judicial salaries. after the establishment of the state of israel this power was transferred under the law and administration ordinance to government as a whole. the first minister of justice d p rosen had promised that salaries of judges should equate to those of ministers, but salaries were low and: “the final insult came when one minister demanded that the judges salaries be made to 10 lira less per month than that of the ministers in order to symbolise the executive’s superiority over the judiciary.”110 this proposal was defeated and in 1950 it was decided that judicial salaries were to be determined by the knesset (or parliament) rather than the executive.111 nonetheless, in 1978 israeli judges were primed to go on collective vacation to protest over the linkage of their salaries, together with those all other government employees to the cost of living index. it was somewhat imaginatively claimed on their behalf that this gesture evidenced their independence. proceedings were commenced by a dissenting but bold lawyer112 to restrain the judges: an injunction was refused. the president of the supreme court, to whom an approach was made, negotiated a solution. 108 this honoured substantially if not completely (i.e. by primary legislation), the assurance given by him to the judiciary and recorded in review body on senior salaries, report no 59 27th report. chairman john baker cm 6451 para 4.11. compare “falconer sneaks out changes to judges pensions” the daily telegraph december 16th 2005 p 24 with the version in the times of the same day. 109 shimon shetreet justice in israel a study of the israeli judiciary (leiden: martinus nijhoff, 1994) (“shetreet: israel”). 110 shetreet: israel p 72. 111 shetreet: israel p 73. 112 d hooper v judges of the magistrates and district courts – dc ca tel aviv 582/78. the denning law journal 19 henceforth judges’ salaries were linked to the average wage rather than on the cost of living.113 but in 1985 emergency regulations were introduced to combat inflation and all wages in public sector including those of the judges were frozen contrary to the provisions of the basic law adjudication of 1984. the dispute was resolved by awarding an increase to the judiciary of 20%, the rest of the public sector gained by contrast nothing.114 in canada during the depression the same issue arose as in contemporary england.115 a canadian constitutional lawyer has witheringly described the argument then advanced on the judges behalf that even non-discriminatory reductions affected judicial independence as “fantastic”.116 half a century later in the same dominion a contributory pension scheme was introduced for federally appointed judges and applied retroactively to judges who were appointed on the day the bill was introduced. in beauregard v canada117 in 1986 a challenge to the legislation failed. while it was recognised that it is a condition of judicial independence that a judge’s right to salary or pension should not be subject to arbitrary interference by the executive, only laws which were indeed “arbitrary”, “colourable” or “discriminatory” would be vulnerable to attack. and in re public sector pay reduction act118 in 1996, it was held that there was no threat to judicial independence when provincial judges salaries shared in a pay cut in common with other public officials. in ireland a novel point was taken in o’bryne v minister of finance when the widow of a deceased judge claimed that taxation payments deducted from his salary while he was in office were breaches of the conventional constitutional guarantee. a minority of the supreme court actually agreed, but maguire cj said sensibly: “the purpose of the article is to safeguard the independence of judges. to require a judge, to pay taxes on his income on the same basis as other citizens and thus to contribute to the expenses of government cannot be said to be an attack on his independence.”119 in the usa the authors of the declaration of independence complained of george iii who had “made judges dependent on his will alone for the amount and payment of their salaries” but the boundaries of the consequent constitutional guarantee to protect the salaries of judges in office have 113 shetreet: israel p 145-6. 114 shetreet: israel p 146-7. 115 lederman p 769. 116 hogg above n 15 p 172. , 117 1986) 2 scr 56. ( 118 (1996) 20 dlr 449. 119 the irish reports 1959 p 38: i r brian doolan constitutional law and constitutional rights in ireland (gill and macmillan, 1983) p 75. the denning law journal 20 frequently been tested in the court themselves. in broad terms the outcome has been that direct interference (that is to say outright reduction) is unconstitutional: indirect interference (that is erosion) is unconstitutional only if two criteria are satisfied: that the erosion is discriminatory; and that it amounts to an attack on independence of the judiciary:120 in the federalist, alexander hamilton, a founding father, stated: “next to permanency in office, nothing can contribute more to independence of the judges than a fixed provision of their support.”121 mr justice breyer a serving justice has said by reference to these historic statements “the framers also understood that steady judicial compensation would help to secure that necessary independence. ”122 the issue was most recently revisited in williams v usa123 in 2002. it had as its backdrop the reform act 1989, which applied to federal judges and had two objectives. first a strict limitation in the amount of outside income that any judge could earn leaving only writing books or teaching as an alternative source, together with a strict cap on the latter. but second, by way of quid pro quo the maintenance of the judicial compensation at a nearly constant level, with the right to automatic annual adjustments in judicial pay to take account of inflation. in each of the relevant fiscal years – 1995, 1996, 1997 and 1999 congress legislated to prevent those adjustments taking effect for that year. a minority of the supreme court (justices breyer, kennedy and scalia) held that this to be unconstitutional, arguing that the special nature of the judicial enterprise should immunise them from cuts in the salaries of other branches of government. they proclaimed “independence of conscience, freedom from subservience to other government authorities, is necessary to the enterprise.”124 in 1981 the prime minister of australia requested the “justices of the high court to accept a reduction in their salaries because of the economic situation. the judges refused although they made separate individual arrangements.”125 120 atkins v us 556 fed rep 20 1028 (1977), will v us 478 f. supp 621 (1979). judges fought with partial success congressional legislation providing for freezes on judicial salaries (1980). shetreet queries the logic of inclusion of the second if the first is satisfied. shetreet: israel pp 217-218. 121 no 79 at p 562 ed c rossiter (new york, 1961). 122 the statement of mr justice stephen g breyer, national commission on the public service, july 15th 2002 (“breyer”). 123 535 us (2002). 124 dissenting judgment, at 13. 125 mr justice kirby “australia” sd chapter 2 p 11. the denning law journal 21 judges internationally have not been shy to contest in court any perceived diminution in salaries including a decrease in real value. there are examples from brazil, greece and spain as well as those i have already cited.126 before turning to more contemporary and domestic issues i should now belatedly declare an interest. i served as chairman of the judicial sub committee of the review body on senior salaries from 2001-2003 before nolanisation compelled me to surrender my seat on the senior salaries review board (ssrb) and hence on its subsidiary body. i recall that when i mentioned my role to an audience of indian judges and lawyers in chennai madras as it then was they expressed astonishment that a practising qc should enjoy a status, which would, as they saw it, confer such a forensic advantage in court. i am bound to say that i never noticed any particularly restrained treatment of my submissions by the judges, and was more conscious of the loss of income sustained by performing an unpaid service to the state at the expense of my practice! this service, however, gave me a particular perspective on the matter under consideration as well, of course, as a particular fascination with the subject. i turn first to the question of method. there are various possibilities as to who should decide how judges are paid. firstly, it could be the judiciary itself. but there would surely be principled objections to judges determining how much they themselves should be paid. secondly it could be court users. but since the legal system provides a vital public service, it ought to be substantially financed by state budget, and not by payments of those requiring its services.127 thirdly it could be the legislature as is the case in brazil, australia, belgium and greece.128 but this, while it has the advantage that the process is in the hands of a democratic body, has the concomitant disadvantage of cumbersomeness. fourthly, as is typical in some states in the usa, it could be by a court system responsible for its own budget, within the limits of a sum of money allocated to it by the legislature:129 a notion which attracted the former 126 usa: judges at local level: shetreet “judicial indepence” sd chapter 52 p 61. professor celso agricola barbio “brazil” sd chapter 6 p 53. for greece and spain, see shetreet sd chapter 52 p 673 n 160. i have had myself to advise the senior judiciary of trinidad and tobago in relation to a threat to their housing allowance. 127 shetreet: israel p 143. 128 shetreet: sd chapter 52 p 672, n 153. 129 this is partially imitated in british columbia in canada and in the high court in australia. the honourable leonard king: “the iba standard” sd chapter 34 p 406. in japan the supreme court prepares a budget when the cabinet proposes to the diet; the denning law journal 22 senior law lord, then vice-chancellor, sir nicholas browne wilkinson. but this is inconsistent with british constitutional practice130 as he recognised. fifthly, it could be the executive without third party intervention as in spain and sweden. but since the government is often party to the litigation this could compromise the independence of the process.131 as d pannick qc, fellow of this college, put it succinctly: “pay rates for an independent judiciary should not be set by the executive, the most frequent clients of the courts.”132 and on this issue lse is at one with oxford. kate malleson wrote: “the way in which judges are ... paid ... provide the potential means for punishing or rewarding judges for their decisions.”133 sixthly, there could be automatic adjustment of salaries by reference to the price index as in california and some australian states, or to the average wage as in israel.134 but, while this would have the virtue of certainty it would have the concomitant vice of inflexibility. the british compromise, imitated incidentally in new zealand135 and south africa136 is in my view the best solution.137 it seems to me a sensible method of reinforcing the constitutional guarantee to distance the government as far as possible from the determinations of judicial salaries, while also allowing a measure of judicial and outside input. an analogous philosophy is belatedly mirrored in the concept of the judicial appointments commission.138 in the case of dispute between court and cabinet the diet decides. professor yasnhe taniguchi “japan” sd chapter 18 p 207. 130 sir nicholas browne-wilkinson “the independence of the judiciary in the 1980s” (1988) 44 public law, at 44. 131 shetreet: israel pp 143-44. 132 the times september 8th 1992. 133 kate malleson “the new judiciary” (aldershot: ashgate, 1999) (“malleson”) p 67. she notes at p 67 however that “in practice ... there does not appear to have been any serious suggestion that the government has sought to influence the judges either collectively or individu lly in this way.” a 134 l p 44. shetreet: israe 135 from 1982, the remuneration authority deals with judicial salaries: remuneration au ority act 1977 (as amended). th 136 judges remuneration and conditions of employment act no 42 2001, s 2(a) (i). 137 there are overseas analogues. shetreet “judicial independence: new conceptual dimensions and challenges” sd chapter 52, pp 628-629 and p 672 n 155 (austria, belgium). 138 constitutional reform act 2005, ss 23-31. the denning law journal 23 i say as “far as possible” advisedly, since it must be for the government of the day to enjoy the last word, always within the constraints of the constitutional guarantee, on what may be affordable at any particular time. lord williams of mostyn qc (then chairman of bar council, later a poacher turned game keeper as attorney general and finally, before his premature death, leader of the house of lords), called it “dangerous to have an allegedly independent body which is then overruled by politicians.”139 as a matter of record governments have rarely declined to take the ssrb’s advice, if from time to time they have decided only to stage the increases proposed. i have, however, always thought it incongruous that the ssrb’s terms of reference include an obligation to have regard to the funds available to departments as set out in the departmental expenditure limits. this blurs the boundary between the role of the adviser and the advised. but since the obligation is only to ‘have regard to’ rather than to be bound by such consideration, this may be of less significance than at first sight appears. and it does remind the ssrb that their function is not simply to accept judges’ estimation of their own value. the customary processes is of consultation are (or were during my time on the body) well established. an advance guard of senior civil servants from what was then the lord chancellors department (now renamed the department for constitutional affairs) would come and explain the government’s view to the sub-committee. at a later plenary meeting the lord chancellor would arrive in all his glory accompanied by his permanent secretary. either between or after, depending on the respective party’s schedules, the lord chief justice would have audience as spokesman for the judiciary, accompanied by one other judge, usually sir andrew morritt, now chancellor, shop steward and shepherd. after exchange of the usual courtesies, more elaborate in the last two meetings than in the first, carriage of the debate was left largely to the judicial sub committee, three in number, all then lawyers, as the judiciary had originally insisted as the price for their participation in the process. in a little noted change, after my retirement from the chairmanship there was a temporary purge of lawyers; although now the body has been afforced by sir peter north qc, lord neill’s successor as vice chancellor of oxford. how and why this happened will have to await revelations in political memoirs or (less likely) in response to a precisely targeted request under the freedom of information act 2000. for several years i enjoyed some brief encounters of the forensic kind with lord irvine on the one hand and lords bingham and woolf on the other. the lord chancellor would plead poverty; the judges need. we would 139 28 september 1992 (bar conference). the denning law journal 24 formulate proposals for our parent body, and recommendations would go forth to the prime minister in due course in immaculate civil service prose with my more rhetorical flourishes sternly sub-edited out. never underestimate the power as well as the skill of the accomplished civil service draftsman! for the future under the new constitutional settlement the amount of salary in point of law “is to be determined by the lord chancellor with the agreement of the treasury,”140 the one with responsibility for the rule of law, the other for the wealth of the nation. the ssrb’s role will continue to be to square the circle. i turn to the question of criteria. there is no definitive way of measuring what judges should be paid.141 to claim that they are worth such and such a figure is to make a judgment more appropriate to the divine than to the human. justice breyer of the united states supreme court wisely said making a case for an uplift in judicial pay to the national commission on public service: “in this world i can find no pay scale that measures an individual’s just desserts.”142 no such inhibition, incidentally, affected the judge sitting in clarksville tennessee, where the court transcript records the following dialogue. “judge: all right. i sure would feel better if you had a lawyer. you can afford one, can’t you? defendant: no, i can’t, your honour. i cannot afford an attorney. judge: are you drawing your salary from the fire department? defendant: yes, i am. judge: that is a pretty good salary, isn’t it? i mean by that, firemen get paid pretty well. defendant: well, it is not comparable to yours. 140 nstitutional reform act 2005 s 34 (2). co 141 m. kuijer “the blindfold of lady justice” (e m meijers institute, 2004) pp 255-6. 142 breyer p 5. the denning law journal 25 judge: well, it ought not to be comparable to mine. i mean, after all, we are the highest in the state. we are god!”143 axiomatically the constitutional guarantee must be respected: it sets a floor, not a ceiling. it may be thought by some invidious to protect judges against financial risks to which others in the community are vulnerable, but i cannot regard it as anachronistic or anomalous. where the administration of justice is concerned, perception is important. judges must not only be independent, but must be seen to be independent. it has been argued that there is a need to avoid reduction not only in formal but in real terms. otherwise judges independence can be compromised by a side wind. shetreet writes: “withholding salary increase may be an indirect method of interfering with independence at times of higher rates of inflation.”144 if so, the pass has long since been sold. the constitutional guarantee cannot be so benevolently interpreted. more realistically there is a need to ensure increase in judicial salaries equivalent at any rate to that elsewhere in public sector. the ssrb have indeed to bear “broad linkage” in mind. but how much – that is the key? there are several points to be made. firstly judges cannot seriously complain that they are under paid in absolute terms – although that has not prevented them from making serial complaints. lord justice parker commented in his retirement speech in 1992: “if you pay peanuts, you get monkeys”.145 while as a general proposition that may have the ring of truth, it surely does not apply to her majesty’s judges. nor do the concerns which lord denning mr ventilated in a debate on the lord chancellors’ salary in 1985 tug too tightly at the heartstrings. he said: “many of the judges were aggrieved. the younger judges were disappointed they could not provide properly for the education of their children, for their holidays and the like.” adding: “a salary increase made them reasonably satisfied.” 146 143 we this reference to julian dare, trinity, oxford 1958-1959. i o 144 shetreet: israel pp 144-5. 145 on 2nd august 1992. 146 on 29th july 1985 hansard 467 hl 88. the denning law journal 26 later concerns were articulated that not only could judges not pay for their holidays; might have less holidays to pay for. in a working party chaired by kennedy lj in 1995 on a proposal that the long vacation should be abbreviated the authors wrote: “such a prospect would be unlikely to find much favour with the judiciary who, having recently been awarded a pay increase below the rate of inflation and far below the level recommended by the tsrb, are bound to regard the vacations as one of the few remaining attractions of the job.”147 david pannick qc has wisely said “any judicial stress would not be caused by worries of low pay”,148 not least because of the benefits of stability associated with the transition from barrister’s chambers (or solicitor’s office) to bench. one judge, sir peter bristow, candidly wrote in a memoir: “you would fairly be said to be relieved of financial worry with your bottom placed firmly on the consolidated fund. to those who all their working lives had to pay their taxes in arrears, paye came as an enormous blessing.”149 the qc enjoys the hurly-burly of the chaise longue, the judge the peaceful tranquillity of the marriage bed – metaphorically speaking of course. secondly it is difficult to argue that the amount paid per se can compromise their independence. kate malleson comments: “the standards of justice may be poorer in terms of such matters as delay and standards of legal advice if less resources are available but that need not affect the independence of the judges. impartial judges can dispense justice under the proverbial palm tree.” 150 147 review of hcj work, deployment and numbers para 56. note too that staging, as in 2002, causes “unanimous disapproval and even resentment” cm 5718 ssrb ch 4 pa a 4.5. r 148 judges (oxford: oup, 1987) p 20. 149 peter bristow j dge for yourself (william kimber, 1986) p 25. u 150 malleson p 56. the denning law journal 27 thirdly high salaries are surely not necessary nowadays to avoid corruption in our courts and the original justification for paying judges has in practice evaporated. as rodney brazier has sensibly asked: “if a person were susceptible to corruption would he not be so almost regardless of income?”151 in the words of lord justice brooke: “and finally, we are paid large enough salaries to render us free from the sort of financial worries which might in theory fuel the risk of judicial corruption.”152 the key phrase being “in theory”. at a judicial accountability commonwealth lawyers association conference in kuala lumpur in 2003, i recall the chairman, the distinguished australian high court judge, michael kirby, looking around the table at lawyers from malaysia, sri lanka, india, scotland, england, as well as the usa – included pro. tem. for the good and sufficient reason that they were, part funding the conference, and saying that in none of our countries had the scourge of judicial corruption been erased. when i mildly inquired whether he would provide any example of corruption from england in the last two hundred years, he rebuked me for being chauvinistic: chauvinistic possibly: accurate certainly! fourthly, while lord bingham has referred to “subtle link” based on the “perceived relationship between what someone earns and the status and prestige which he enjoys”,153 not even in a materialistic society can it fairly be said that the prestige of a position reflects exactly the sum paid to its occupant. judges may occasionally – in my respectful view unwisely – speak of footballers as role models,154 but do we really admire a master of the goals more than the master of the rolls because one earns £75,000 per week and the other closer to £7,500? 151 brazier constitutional practice (oxford: oup, 3rd edn, 1999) p 275. 152 brooke p 12. however the connection between inadequate pay and judicial corruption remains live elsewhere, see j clifford wallace “resolving judicial corruption” in cd cyrus das and k. chandra judges and judicial accountability (c r, 2003) pp 86-101. l 153 see brazier op cit p 275: “enhance the dignity of judicial office.” the tokyo principles also suggest that remuneration judges should be commensurable with the dignity of their profession and b rden of responsibilities (recommendation r(94) 12. u 154 a v b (2003) qb 195 at 217. the denning law journal 28 the ssrb’s assessment for proper pay is based on an elusive concept of job weight, referable more to the quality of what is done than its content.155 whereas in the other two groups (senior civil servants156 and senior officers of the armed forces) performance related pay has infiltrated the calculation; the 1997 fundamental review roundly rejected it in these words: “it would involve systems of management and appraisal whose authority and efficiency would be controversial and which could be seen to challenge the principle of judicial independence. the view was also expressed that performance related pay might lead to a perception that a judges actions could be influenced by considerations of personal gain and loss.”157 performance related pay was, however, the subject of internal discussion158 and i betray no state secret in identifying the non-lawyers on the body as being less hostile that the lawyers to the notion. i do not, of course, consider that assessment would be impossible. although the quality of performance of a judge may not be as easily measured as that of a senior civil servant, the lord chancellor has hitherto been able to distinguish between those whose careers reach their pinnacle on the high court bench, those who are fit to ascend to the rarified atmosphere of the court of appeal and those who can soar into the stratosphere of the house of lords – without using such crude analytical tools as the ratio of judgments appealed and reversed to those appealed and upheld, or throughput in numbers of cases dealt with per sitting. but in this age of transparency, who would judge the judges, and by reference to what standards? for my part i consider that even evaluation by an independent commission would not entirely dispel the impression, false though it would surely be, that judges might tailor their judgments to fatten their pay packets and might be less robustly oblivious to politician’s criticisms that they manifestly are today. more important still, to distinguish in terms of 155 see the european charter on the statute for judges which mentions length of service, nature of duties and importance of tasks as relevant criteria. 156 one concern is the fact that, contrary to the historic position, the salary of the lcj has fallen substantially behind that of the cabinet secretary: cm 5718 report no 54 chapter 4 para 4.15. 157 cm 3451 1997 para 22. the 2002 fundamental review, which i chaired, did not even raise the issue. 158 see “neither cloistered nor virtuous: judicial independence in the twentieth century” m j beloff qc, atkin lecture reform club 1999, reprinted in (2000) denning law journal 153 at 164. the denning law journal 29 pay between one high court judge and another would lead to the conclusion that one dispensed a purer justice than the other. it may be a fiction that all judges at the same level are equal; some are clearly more equal than others; but that inequality should be reflected in their promotion, not their pay. mr justice breyer compiled a melancholy catalogue of the consequences of false economy159 causing “major financial insecurity among judges” many, if not all, of which can be transposed across the atlantic premature resignations, diminished attraction of judicial office to well qualified lawyers outside the judicial system, repetitive promotion from within the system with consequent risk of bureaucratization and lower morale. judging, he added, might become seen as a temporary assignment, a threat that the odd fisher or laddie apart, is less resonant in england and wales, unless schemes are implemented to allow for judges to return to the profession. he concluded: “in this way the cuts contribute to diminished institutional reforms which in turn promotes public disenchantment and lack of trust in a government, less able to get the job done well and a lack of interest in participating in the work of that government.”160 contending that sufficient pay: “must have and does have everything to do with the nature of the institution and the value of the strong, well functioning, truly independent judicial system for all americans.”161 nor was this a self-serving statement on the fringe of mainstream thinking. in 1989 the report of the american commission on executive, legislative and judicial salaries entitled. “fairness for our public servants” said that reducing the real level of judicial salaries in the usa was “threatening to diminish the quality of justice in this country.”162 so we reach the heart of the matter. while lord bingham has modestly written.163 159 breyer p 6. 160 breyer p 8. 161 breyer pp 5-6. 162 report at p 27. 163 lord bingham of cornhill “judicial independence” at jsb annual lecture in 1996, reprinted in lord bingham the business of judging (oxford: oup, 2000) p 64. the denning law journal 30 “the connection between judicial salaries and judicial independence may not be immediately obvious,” he surely was stating the obvious in continuing: “our own tradition does depend on the willingness of the most successful practitioner at the height of their careers to accept appointment to the judicial bench, and i gravely doubt whether that tradition can be maintained.” 164 the real issue is surely one of recruitment and retention or staying the course, until judges become, in lord bridge’s melancholy phrase “officially geriatric”.165 the ssrb’s own terms of reference – admittedly to be applied to various sectors of public service specify “the need to recruit, retain and motivate suitably able and qualified people to exercise their different responsibilities”.166 if the ablest eligible candidates – i put on one side the controversial claims of diversity – either refuse the invitation to the bench (or decline to apply to advertisement) or, once appointed, serve only for so long as entitles them to a full judicial pension, if that, the standard of justice will inevitably, if imperceptibly, be impoverished. and in an age when the judiciary, armoured with new weapons in the form of paramount community law and the domesticated european convention on human rights, and imbued with an activist spirit which has not been a constant in post war times, play an increasingly significant role in the governance of the nation, any lowering of even high standards would be a cause for legitimate concern. to quote holdsworth: “....a good thing is never cheap: and to pay sufficient to get a good thing is often the best economy for thereby expensive disasters are avoided.”167 164 ibid p 66. 165 in ruxley electronics and construction ltd v forsyth house of lords (1996) ac 344, lord bridge concluded his speech elegiacally: “my lords, since the populist image of the geriatric judge, out of touch with the real world, is now reflected in the statutory presumption of judicial incompetence at the age of 75, this is the last time i shall speak judicially in your lordships’ house. i am happy that the occasion is one when i can agree with your lordships still in the prime of judicial life who demonstrate so convincingly that common sense and the common law here go hand in hand”, at 364. 166 cf remuneration authority act (new zealand) 1977 (section 18 (i) (c)) which refers to “the need to recruit and retain competent persons.” 167 holdsworth lqr p 33. the denning law journal 31 in england, the discrepancy between earnings at the bar and on the bench is notorious.168 it features in the biographies and memoirs of famous members of both professions. it was a reason why george carman qc did not go to the bench – admittedly in hong kong.169 in his autobiography sir neville faulks described his options in this way. “i wanted to be “local boy made good”, but i wanted to keep my children in bread and boots for as long as i could, and the appointment would mean a substantial drop in income”.170 sir michael kerr wrote of the agony of his decision to quit bar for bench “above all there was the question of money. i was earning about £38,000 a year near the top of the bar, and i think that a judge’s salary was then £11,500.”171 this lawyers’ dilemma is no mere contemporary phenomenon. norman birkett’s clerk wrote: “when norman birkett went to the bench he made a very heavy financial sacrifice and so did i when i decided to go with him.”172 the clerk’s sacrifice was appreciated by birkett,173 and his own presumably tolerated. as with birkett, so with atkin. geoffrey lewis, his biographer, wrote “for almost the whole of his career, atkin was troubled by anxiety about money ... by the time he was established as a leading commercial silk he was earning some £11,000 a year but this relative affluence was short lived, and, as has always been the case in england, his appointment to the high court bench brought with it a sharp reduction in income. he returned more than once to the idea of leaving the profession in order to earn more, first as a teacher, later for a post in the city and even when a judge, to return to the bar.”174 168 not only in england; for india see dr anand prakash “india” sd chapter 15 p 163. 169 dominic carman no ordinary man – a life of george carman (london: hodder and stoughton, 2002) p 110. carman was not an example of that caricature figure “filth”: failed in london, try hong kong: see the novel by jane gardam “old filth” (penguin, 2005). 170 ir neville faulks a law unto myself (william kimber, 1978) chapter 6. s 171 michael kerr as far as i remember (oxford: hart, 2002) p 271. 172 a e bowker a lifetime with the law (w h allen, 1961) p 189. 173 h montgomery hyde norman birkett (hamish hamilton, 1964 p 475. ) 174 geoffrey lewis lord atkin (london: butterworths, 1983) p 19. the denning law journal 32 as in the united kingdom, so in the united states of america.175 as breyer put it: “the real pay of federal judges has diminished substantially in the past three decades. the gulf that separates judicial pay from compensation in a non-profit sector, academia, and the private sector grows larger and larger. the result, in my view, threatens irreparable harm both to the institution and in to public that it serves.”176 breyer compared increases in judicial pay, which had exceeded, the cost of living in canada and the uk with the reverse position in the united states. interestingly, it appears that where as in england the order of size of income would be first practising lawyers, second judges, third law academics, in america law academics can outstrip judges – a dispiriting observation for the majority of this audience! in germany by contrast in recent times judges, previously less well paid than academics, have now overtaken them – reflecting changed perceptions of their relative contributions to the law’s development.177 in 1988 the top salaries review body (tsrb) themselves said (echoing sir peter bristow) that drop in income could be mitigated: “in the light of the status and security of judicial office with its prospect of continuing in paid, rewarding and pensionable employment to a later age than is possible in most walks of life.” 178 but this sanguine statement was made before the judicial pensions and retirement act 1993 which (amending the judicial pensions act 1959) raised the period of service for a full pension from 15 to 20 years and lowered the retirement age to 70 prospectively – a double financial whammy, bearing in mind that, as the european court of justice has reminded us, pensions are deferred pay.179 the trsb anyhow added materially “the discount has now become too great.” 175 reyer passim. b 176 breyer p 8. 177 information from professor stefan vogenauer, professor of comparative law, university of oxford and trinity oxford alumnus. 178 mn 1988 para 45. c 179 barber v guardian royal exchange assurance group ltd 262/88 [1991] 1 qb 344 ecj. the denning law journal 33 it may well be that as joshua rozenberg has written: “the real problem is not that judges earn too little but that lawyers earn too much.”180 but unless (unthinkably) there is legislation to cap counsel’s private fees the problem is a problem is a problem. in 2005 thirty barristers earned more than £1 million and a select few more than £2 million.181 the recently retired lord chief justice cast a wistful eye east when he reflected: “i have recently returned from singapore and there the chief justice … transformed recruitment and the quality of the judiciary by obtaining a doubling of judicial salaries.”182 i am reliably informed that the singaporean judges remuneration (annual pensionable salaries) order: “does not deal with the bonuses, car allowances and other perks paid to them which bring the total annual emoluments of judges to 1 million singapore dollars.”183 ex asia semper aliquid novi how real are these concerns of a diminution in the numbers of those willing to accept high court appointments preferring city, campus or a conventional courtroom practice? official statistics obscure rather than illuminate. as is common knowledge among the cognoscenti, they resemble in terms of accuracy to use a modern metaphor borrowed from the shadow chancellor of the exchequer the figures for soviet tractor production, a point appreciated by the ssrb.184 when high court judges were appointed by invitation only and not through advertisement, the lord chancellors department could optimistically, but unrealistically claim that no one counted 180 joshua rozenberg the search for justice (hodder & stoughton, 1994) p 92. 181 the times september 5th 2005 (figures from the lawyer magazine). 182 inner temple millemmium lecture 2001. 183 private information from a prominent local lawyer and former parliamentarian. 184 noting, in 2005, the lord chief justice’s concerns that “the official recruitment data masked a more serious problem at the informal approach stage;” cm 6451 review body on senior salaries para 4.6. the denning law journal 34 as a loss to the bench who had not actually declined face to face by that sometime refutation of the separation of powers. nonetheless even a decade or so ago it was accepted that some asked for deferment described by rozenberg as “the start of an alarming trend.”185 and while in 1988 – 1991 there were no refusals. in 1991 – 1992 – 1 declined. in 1992 – 1993 – 6 declined. similarly in april 2000-2001 19 high court appointments were made (seven as a result of advertisement, the others the traditional “tap on the shoulder”). but six people refused appointment. as we put it in our subcommittee report in 2002: “this significant figure almost a third of the number of those appointed – calls into question whether there was an increasing pattern of refusals which indicates future difficulties in attracting appropriate appointees.” 186 the full body were a trifle more cautious: “in general, we are satisfied that there are no major problems at present in recruiting judges of the required calibre at all levels. however, we agree with the sub-committee that the refusal of a proportion of those offered appointment to the high court gives grounds for concern. while judicial pay is only one factor, and not necessarily the predominant factor, in the refusal of appointment it must not be allowed to diverge so far from the pay of the group from which judges are mainly recruited that it deters the most able, with the result that an increasing proportion of good potential candidates will be lost to the judiciary.”187 and i am sceptical whether the position has truly improved even over the last three years.188 i could immediately name – though respect for their 185 rozenberg op cit p 93. the lord chief justice’s concerns that “the official recruitment data masked a more serious problem at the informal approach stugi was no ed in 2005; cm 6451 para 4.6. t 186 report of the review body of senior salaries in 2002 cm 5389-11 para 4.26. discussed in rances gibb “low point for high court appointments” the times 5th f march 2002. 187 cm 5389-i from paras 31-33. 188 although for 2002-03 the lord chancellor reported only one refusal and that a request for deferment: report of the review body of senior salaries in 2003 cm 5718 para 4.18; for 2003-04 three refusals were reported by the lord chancellor: but the the denning law journal 35 privacy restrains me – at least 10 senior silks who have resisted the temptations of office. in 2004 the average drop in earnings on appointment of a high court judge was 53%.189 while pay is not the only factor, that militates against acceptance of such judicial appointment,190 the implications of these figures can be assessed by someone of lesser intellect than a senior wrangler. three principles of judicial pay may be said to be part of our modern constitutional settlement: it is unconstitutional to cut the salary of an individual judge of a superior court during the currency of his (or her) commission. it is unconstitutional for parliament to reduce the judicial salary scale overall to the extent that it threatens judges’ independence. and no judge can be appointed unless provision is made for his or her salary. these are guarantors of independence, but they are not, by themselves, guarantors of excellence. in 1933 holdsworth wrote: “the remuneration of the judges is not sufficient to induce the ablest lawyers in the prime of life to accept judicial office. if that state of affairs is allowed to continue it must have serious effect upon the administration of the law. it will impair those intellectual standards which have made our english legal system a great legal system; it will tend to impair that lawabiding instinct which is the condition precedent for the maintenance of a high standard of civilisation, and it will weaken the chief remaining guarantee for the prosecution of the liberties of that subject.”191 more than seven decades on, we should still heed his warning. ssrb noted the divergence between official and unofficial refusals: cm 6099 para 5.33. 189 ssrb judicial sub-committee consultation document para 5.5 p 15. 190 other factors are a distaste for going out on circuit, increasing control by the civil service, a sense that in terms and prestige “fings ain’t what they used to be”, and co straints on lifestyle. n 191 holdsworth lqr p 33. see, eg, ramon mullerat obe “the judges independence from his own convictions” in the indian advocate: journal of the bar association of india: vol xxxii 2004 p 88. the denning law journal 36 neill lecture 2006 michael j beloff qc* unincorporated associations: property holding, charitable purposes and dissolution 181 denning law journal 2009 vol 22 pp 181-191 case commentary exempting a trustee for gross negligence spread trustee company ltd v hutcheson privy council [2011] ukpc 13 jennifer shearman* and robert pearce** can an exemption clause exclude a trustee‟s liability for gross negligence? that was the question which the privy council was required to consider in this appeal from the guernsey courts. guernsey has developed substantial activities in finance and trusts, and now has legislation (the trusts (guernsey) law 2007) creating a legal framework for this business. the legislative framework was first introduced in 1989, and amended in 1990. the effect of an exemption clause had never been considered in litigation in guernsey prior to the introduction of legislation. the trusts (guernsey) law 1989 section 34(7) provided: “nothing in the terms of a trust shall relieve a trustee of liability for a breach of trust arising from his own fraud or wilful misconduct.” that provision was amended by the trusts (amendment) (guernsey) law 1990 by adding “or gross negligence”. the 2007 law contains a provision which is in substantially similar terms to the 1989 law as amended. in spread trustee co ltd v hutcheson 1 the acts and omissions on the part of the trustees took place over a number of years. the relevant trust instruments contained an exclusion clause and the privy council had to decide whether or not it was effective to exclude liability for gross negligence in respect of the matters arising before the coming into force of the 1989 and 1990 laws. the board was unanimous in finding that the legislation did not operate retrospectively. however, the board was divided over whether under the customary law of guernsey it was not possible to exempt trustees from liability for gross negligence. the privy council concluded by a majority that the customary law of guernsey would have followed english law, and that the guernsey * bsc (surrey), solicitor, senior lecturer in law, the university of buckingham. ** bcl, ma, hon lld, frsa, professor in law, the university of buckingham. 1 [2011] all er 51. case commentary 182 courts, if the question had arisen before 1989, would or should have come to the same conclusion as the court of appeal in armitage v nurse, 2 which correctly states english law. there was therefore nothing in guernsey law, prior to legislative change, which prevented the exclusion of liability for gross negligence. the issues the claimants were beneficiaries under two settlements set up in november 1977 who alleged they were entitled to compensation of £53.5 million, including interest, for losses arising from failures on the part of the defendant, a professional trustee company, and the previous trustees. the beneficiaries claimed that the defendant was grossly negligent in its investment policy and in failing to investigate breaches by the previous trustees. each settlement contained an exclusion clause, exonerating the trustees from liability for losses to the trust fund except in the case of wilful and individual fraud and wrongdoing on the part of the trustee sought to be made liable. the defendant claimed this protected it from any liability for breach of trust resulting from its gross negligence. the question to be determined as a preliminary issue was whether guernsey law prohibited the exclusion of liability for gross negligence for breaches of trust arising before february 19th 1991 (being the date the 1990 amendment law came into force) and if it did, whether the prohibition applied to breaches arising prior to april 22nd 1989 (being the date the 1989 law came into force). royal court of guernsey the case first came before the lieutenant bailiff sir de vic carey. in his view, it had never been possible for a trustee to exclude liability for gross negligence under guernsey law. he believed that the provisions dealing with exclusion clauses in the 1989 law, as amended in 1990, were declaratory of guernsey law. the policy letter 3 introducing the 1989 law proposed legislation broadly on the lines of earlier legislation passed in jersey, and the legislation actually introduced was similarly worded. that demonstrated that the enactment of guernsey trust laws arose from a desire to keep in step with jersey. the original jersey law of 1984 did not refer to exclusion of liability for gross negligence, but was amended to cover this aspect of liability in 1989. the jersey court of appeal in midland bank trust co (jersey) ltd v federated pension servs 4 had considered obiter that the aim of the legislature 2 1997 2 all er 705. 3 billet d’état no.ix of 1988, art vi. 4 1995 jlr 352 (the midland bank trust case). the denning law journal 183 in amending the 1984 law was to clarify, rather than to change, the provisions, and that therefore the 1989 jersey amendment law had effect in relation to breaches taking place between the two laws. the lieutenant bailiff considered that, even though the jersey decision had only persuasive force, the statement in s 18(1) of the 1989 guernsey law, which provides that a trustee “shall, in the exercise of his functions, observe the utmost good faith and act en bon père de famille” was declaratory of the existing law, and the same was true of s 34(7) dealing with exclusion clauses. the amendment made in 1990 was only a minor change of emphasis. acting with gross negligence in the discharge of one‟s duties as a trustee could not be compatible with acting en bon père de famille. he said: “i further cannot see how any clause in a trust deed completed before 1989 which purported to discharge a trustee from liability to the trust for failures to act en bon père de famille could have been upheld by the court.” 5 court of appeal (guernsey) the trustee appealed to the guernsey court of appeal, 6 and once again the preliminary issues were answered in favour of the claimant, but for different reasons. the guernsey court of appeal said that the proper approach to construction of the two laws was firstly to investigate the customary law of guernsey before the enactment of the 1989 law. the law of trusts in guernsey comprised a mixture of english and customary principles and even though the rules had generally advanced further in england than in other jurisdictions, they would not be applied where they were inconsistent with guernsey law. the court considered both midland bank trust and armitage v nurse, pointing out that both cases had been decided after the 1989 law had been introduced. in midland bank trust the jersey court of appeal had reviewed a series of mainly nineteenth and early twentieth century scottish cases and concluded that they could all be regarded as decisions on the construction of the relevant exclusion clause, a conclusion with which millet lj in armitage v nurse agreed. the guernsey court of appeal did not agree, and thought the cases laid down a clear rule of law that no exoneration clause could exclude liability for fraud or gross negligence. the court pointed out that the scottish law commission had come to same view, saying: “in our view… the scottish law on immunity clauses remains as stated in the 19 th century cases. gross negligence or gross breach of duty is 5 2009-10 glr 197 at 215 [52] (the paragraphing referred to in the privy council report is different from that in the official guernsey law report). 6 2009-10 glr 403. case commentary 184 regarded as tantamount to dole or fraud and cannot be excused : culpa lata dolo aequiparatur.” 7 the court noted that prior to to armitage v nurse, which held that it was permissible to exclude liability for gross negligence, english law was uncertain. the english law commission thought in 1992 that gross negligence might not be excluded, saying: “beyond this, trustees and fiduciaries cannot exempt themselves from liability for fraud, bad faith and wilful default … it is also not altogether clear whether the prohibition on the exclusion of liability for „wilful default‟ also prohibits exclusion of liability for gross negligence although we incline to the view that it does.” 8 the court concluded that the conclusion reached in armitage v nurse was inconsistent with guernsey customary law. millett lj had rejected the suggestion that a duty to act without gross negligence was one of the core obligations of trustees, but his decision should not be applied. he had been mistaken in his view of the scottish cases; his rejection of gross negligence as a civilian concept alien to the common law carried no weight in guernsey, with its mixed english and norman law ancestry; 9 and the clear position in scottish law would, in guernsey, have been adopted in preference to the uncertainty in english law. the report 10 put before the states (the legislature) highlighted the fact that the roots of guernsey law lay in norman customary law, and the lieutenant bailiff had rightly attached significance to the obligation of a trustee to act en bon père de famille which is a phrase derived from french law with no place in english law, even if it can be equated with the standard of care required of trustees in england, viz to act a prudent man of business. the guernsey court of appeal could find nothing to suggest that the 1989 law was intended to take a different view with regard to exclusion clauses than the court had taken with regard to customary law. the fact that the law had not referred to gross negligence was only a mistake which was corrected by the 1990 amendment. the change could not have been seen as significant because the report 11 preceding the 1990 law talked only of making 7 discussion paper on breach of trust, september 2003 (discussion paper no. 123), para 3.16 at 19. 8 fiduciary duties & regulatory rules: a consultation paper (law com no 124), para 3.3.41, at 105. 9 2009-10 glr 403 at [32]-[33] citing millett lj [1998] ch. at 250 at 253-254. the court also observed that gross negligence was in fact recognised in english law for some purposes including manslaughter and bailment. 10 report dated 12th february 1988 of the states advisory & finance committee. 11 report dated 16th march 1990 of the states advisory & finance committee. the denning law journal 185 “minor technical amendments.” thus the effect of the 1989 and 1990 laws was to confirm the position that in guernsey law, a trustee exoneration clause could not exclude liability for gross negligence. the question of retrospectivity did not therefore arise in respect of either law, but if it had had to decide the matter, the court would have held that neither law had retrospective effect. privy council the trustee appealed to the privy council, the majority of whom (lord clarke, lord mance and sir robin auld) 12 held that clauses excluding liability for gross negligence were effective in guernsey law until prohibited by the 1990 law. the 1989 law was clear: “a trust could not lawfully include a term excluding the trustee‟s liability for breach of his obligation to act en bon père de famille arising from his own fraud or wilful misconduct.” 13 it was implicit in this express prohibition that the law permitted a trustee to exclude liability for other causes, in particular negligence and gross negligence. the court of appeal had been wrong to hold that the omission of gross negligence in the original form of s 37(4) was a mistake. firstly there was no evidence to support that conclusion. secondly, the majority of the board was of the view that the 1990 amendment was intended to follow the relevant change to the jersey law of 1984 because it employed almost identical terms. 14 moreover, since the jersey law in its original form contained no provision at all which expressly set out the extent to which a jersey trust could exonerate a trustee, the inclusion of limits on exoneration clauses in the guernsey law of 1989 must have been the result of a considered decision about what to allow and what to prohibit. the failure to prohibit exclusion of liability for gross negligence was not a mistake. the beneficiaries therefore lost their arguments based on statutory interpretation. the question remained of what the position was in guernsey customary law prior to the 1989 law, and this is the question of most interest to english lawyers. the majority in the privy council held that the court of appeal was wrong in concluding that before 1989 the guernsey courts would have followed scottish law in preference to english law. 15 the board accepted that there was a rule of scottish law or policy to the effect that no trustee 12 lord clarke delivered the opinion of the board; lord mance and sir robin auld gave concurring opinions. 13 [2011] ukpc 13 at [21]. 14 ibid at [25]-[34] (lord clarke); at [118] (sir robin auld). 15 sir robin auld at [127] thought that the question was not what a court would have decided, but what it should have decided, but his conclusion was the same. case commentary 186 could be exonerated in respect of fraud or gross negligence. 16 it also entirely accepted that guernsey looked to other jurisdictions for assistance in developing particular areas of law. in the case of trusts, however, the position in english law was the usual starting-point. while this would not be imported wholesale and would yield to guernsey customary or statute law, there was no specific guernsey customary law with regard to exclusion clauses and there was no evidence that guernsey had at any stage looked at the law of scotland. so, what would the guernsey courts have discovered if they looked to english law? “it seems to the board to be much more likely than not that a guernsey lawyer or judge or the board itself, considering the position under english law before 1989, would have looked at the cases cited by millett lj and would have reached the same conclusions as he did.” 17 the board did not think it important that millett lj differed on the interpretation of scottish law. his view that negligence and gross negligence differed only in degree was not negated by examples in which english law recognised gross negligence because there was still a difference between both types of negligence and fraud. 18 finally, even if for some purposes in systems drawing on roman or classical principles gross negligence could be equated with fraud, that was not relevant to the interpretation of english law. there was no rational basis for drawing a distinction between liability for negligence and gross negligence, 19 and any such distinction would have had to be made by statute, as was done in guernsey by the 1990 law. the board agreed with the court of appeal that the 1990 law did not apply to breaches of trust before it came into force, and the same was true of the 2007 law. lord mance, in a concurring opinion with which sir robin auld agreed, raised the possibility that, for the purposes of applying exemption clauses, fraud might be interpreted as including cases where fraud was interpreted objectively, as it was in walker v stones. 20 dissenting opinions neither of the dissenting opinions agreed with the majority that the guernsey courts, prior to 1989 would have reached the same conclusion about 16 lady hale and lord kerr (dissenting) agreed on this point: [2011] ukpc 13 at [133]. lord mance, in a concurring opinion, was doubtful, leaning to the view that the scottish cases were based upon the construction of the exemption clauses concerned rather than applying “an absolutely inflexible rule, effectively one of public policy” precluding exemption of liability for gross negligence: at [108]. 17 [2011] ukpc 13 at [57]. 18 a view emphatically endorsed by sir robin auld in his concurring opinion: [2011] ukpc 13 at [117]. 19 [2011] ukpc 13 at [62] (lord clarke) and at [124] (sir robin auld). 20 [2001] qb 902. the denning law journal 187 exemption clauses as that reached subsequently in 1997 by millett lj in armitage v nurse. this is unsurprising given the contrary conclusion reached in the guernsey courts in this case, and the various doubts which have been expressed about armitage v nurse. 21 lady hale pointed out that the board had upheld a decision of the english court of appeal which had never been considered by the supreme court, and the board should have been slow to depart from the views of the two lower courts of guernsey, when to do so might pre-empt consideration of the issue in the english courts. 22 before armitage v nurse there had been considerable uncertainty about the law, 23 and the view of the law commission that it was not possible to exclude liability for gross negligence was based upon thorough research. 24 predictions by the law commission could be wrong, and so it proved with armitage v nurse. 25 but the decision had been subject to immediate criticism, and in 1999 the trust law committee 26 thought the force of the decision was diminished by the court‟s apparent view that it had to decide between outlawing or accepting all negligence clauses rather than considering whether to only outlaw exemption for gross negligence despite a long line of authority distinguishing the two. 27 lady hale also noted the view of the law commission, in its examination in 2002 of the current law and practice of trustee exemption clauses in england and wales: “it must be admitted that the authority of armitage v nurse ... is not entirely free from doubt. the view taken of the nineteenth century scottish cases does not accord with the understanding of these decisions north of the border... while there is no reason why the english and scottish law should be identical in this respect, the reliance placed by millett lj on the scottish cases was clearly an important part of his reasoning, and should that reliance be shown to have been misplaced, the authority of the decision may thereby be called in question.” 28 21 see lady hale‟s explanation below of some of these doubts. 22 [2011] ukpc 13 at [129]. 23 ibid at [130]. 24 ibid at [132]. 25 ibid at [135]. 26 the trust law committee‟s consultation paper on trustee exemption clauses, para 2.8. 27 [2011] ukpc 13 at [135]. 28 trustee exemption clauses: a consultation paper (law com no 171), para 2.54, at 19. case commentary 188 lady hale said that nothing could be concluded from the fact that the law commission in its later report on trustee exemption clauses 29 did not recommend legislation. that did not mean that a higher court might not subsequently take a different view of the law. since opinion about armitage v nurse was divided, it was open to the guernsey courts to find that, given their jurisdictional heritage, and the differently expressed duty of trustees, liability for gross negligence could not be excluded. the privy council should not interfere with their decision to reach that conclusion. lord kerr agreed that english law before 1989 was uncertain, although there was an ample basis for advice that it was probably permissible to exempt a trustee from liability for gross negligence. 30 however, he pointed out that no investigation of the public policy arguments was undertaken in armitage v nurse although millett lj had expressed concern about the propriety of professional trustees excluding liability for everything except actual fraud. the scottish cases demonstrated that culpa lata (gross negligence) by a trustee could not be exempted in a trust deed, and there was a sufficient basis for the guernsey court of appeal to conclude that this line of authority would have been applied than the less defensible english law. this was not, though, the principal basis for the guernsey courts‟ decision, which was that the fundamental obligation of a trustee to act en bon père de famille gave rise to fiduciary obligations different from those in english law. 31 he said: “ultimately, it appears to me that the notion of exempting from liability a trustee 's gross negligence is not only inimical to the fiduciary duty that he owes to the beneficiary under guernsey law, it is wholly destructive of the essential feature of the relationship between the two.” 32 the scottish cases the guernsey court followed were based on similar reasoning. commentary trusts are a creation of english law, and it is natural to assume that in cases of uncertainty in other jurisdictions, english law can provide a useful, even if not conclusive, guide. there is also value in achieving some harmony between different jurisdictions in areas like trusts and finance where 29 cm 6874 (2006). 30 [2011] ukpc 13 at [163]. 31 a view which was rejected by the majority at 11 and [61]. 32 ibid at 177 . the denning law journal 189 international transactions are commonplace. 33 however, the value of english law as a guide to the resolution of uncertainty is surely diminished where english law itself is uncertain and controversial, as it is in relation to trustee exclusion clauses, and certainly was prior to the decision in armitage v nurse. that was recognised in the minority opinions, but appears to have had little effect upon the majority. reconstructing the past is never easy, and it is even harder to decide how a question which was never asked in the past might have been answered then. it is, of course, not open to a judge to leave the question unanswered when it is essential to the outcome of the litigation. the detailed consideration by the majority of the conclusion in armitage v nurse, and its endorsement of it, may be seen as an indication of how the decision will be treated if the question of trustee exclusion clauses reaches the supreme court. however, the dissenting opinions leave continued uncertainty, and the respect traditionally shown for decisions of the privy council by no means guarantees that the same view will necessarily be taken in domestic english courts. 34 moreover, despite the endorsement of armitage v nurse, some ammunition is given to its critics. for instance, millett lj was convinced that the scottish cases could be treated as based upon the interpretation of the exclusion clauses used in the cases concerned. all but one of the judges in the privy council in this case take a different view and accept that the scottish cases establish a rule of law that trustees cannot be exempted from liability for gross negligence. there can be sound reasons of policy why the law varies from jurisdiction to jurisdiction. the decision of the majority of the privy council aligns guernsey law with english law only in respect of acts or omissions by trustees prior to the coming into force of the trusts (amendment) (guernsey) law 1990. since that date, the law in the two jurisdictions is different, for one or both of two reasons. the first is that there may be a more significant difference between the concepts of en bon père de famille used in guernsey and that of the prudent man of business as tests for the standard of a trustee‟s conduct than the privy council appears to have believed. 35 a man of business 33 m kirby “of advocates, drunks and other players: plain tales from australia” [2011] denning lj 47-64; breakspear v ackland [2008] ewhc 220 at [32]. 34 see sinclair investments (uk) ltd v versailles trade finance ltd [2011] ewca civ 347 (doubting ag for hong kong v reid [1994] 1 ac 324). 35 lord clarke indicated that he thought there was no identifiable discernable difference between the nature and extent of a trustee‟s duty to act with reasonable care in all the circumstances and a duty to act en bon père de famille: [2011] ukpc 13 at [20] and [39] as explained by sir robin auld at [123]. sir robin auld dismissed all the beneficiaries‟ arguments to the contrary: [2011] ukpc 13 at [121]-[124]. lady hale agreed that the duty to act en bon père de famille was “clearly equivalent to the duty ... to act as a prudent man of business” at [139]. only lord kerr considered that there was a distinct difference: at [176]. case commentary 190 is more likely to be prepared to take risks than a bon père de famille (which is why the duty of care defined by reference to the prudent man of business has to be qualified by adding that he acts “for the benefit of other people for whom he felt morally bound to provide”). 36 moreover, the concept of the bon père de famille is an obvious import from norman or french law, and in french law is one where a departure from the required standard of conduct can be either simple or lourde (ordinary or gross). there is therefore a more rational basis for distinguishing between ordinary and gross negligence than the privy council acknowledges. the second reason for the distinction is that the offshore trust business is of great importance to guernsey‟s status as an international financial centre, and that status is likely to be enhanced by rules on exclusion clauses which are more favourable to beneficiaries. as sir de vic carey said at first instance, “settlors and beneficiaries of trusts... needed to have the reassurance that guernsey was a suitable place to bring their wealth for looking after.” 37 just as other jurisdictions can learn from decisions of the english courts, so our courts can learn from decisions in other jurisdictions. the dismissal by most of the judges in the privy council of the concept of the bon père de famille as an explanation for a different attitude to exclusion clauses in guernsey before the 1990 law is based on treating the concept as no more than a different way of explaining the idea of the prudent man of business. this seems to underplay the significance of a concept which may, in fact, be a better way of explaining the range of obligations which fall upon a person with fiduciary responsibilities to place the interests of others above his own interests than the obligations commonly shown in the frequently cut-throat world of business. there could also be value in addressing the utility of the concept of gross negligence in relation to exclusion clauses. it is surely legitimate to ask whether there is a difference in terms of culpability and responsibility between say, a total failure by a newly appointed professional trustee to review the actions of the previous trustees, and a review which, through careless oversight, fails to identify one isolated instance of a breach. under the principles adopted in armitage v nurse the trustees would not only escape liability in both instances, despite the seriousness of the breach, they would be entitled to claim their fees as if they had acted with due diligence. millett lj himself seemed to recognise this, pointing out that the exemption clause in that case: “…exempts the trustee from liability for loss or damage to the trust property no matter how indolent, imprudent, lacking in diligence, 36 re whiteley (1886) 33 ch d 347 at 355. 37 2009-10 glr 197 at 211 [38]-[39]. the denning law journal 191 negligent or wilful he may have been, so long as he has not acted dishonestly.” 38 in response to the claim that exclusion clauses allow a professional fee charger to act irresponsibly, it is often countered that exclusion clauses are risk-shifting devices which simply transfer the onus of taking out insurance against the risk. however, that argument may have little merit in the case of trustee exemption clauses. lord clarke points out in this case that professional trustees may be unwilling to take on the administration of trusts without the protection of exclusion clauses of very wide effect given the cost and difficulty of obtaining insurance 39 (the argument used to persuade the law commission not to recommend legislative change to the result produced by armitage v nurse). but, by thereby transferring the risk to the beneficiaries, the risk is upon parties who have very little ability to control it, and whose ability to obtain insurance (or to spread the risk if insurance is not available) is even more constrained than professional trustees. fairness is therefore a relevant consideration in deciding where the line should be drawn in relation to trustee exemption clauses. guernsey and jersey have chosen to draw that line between ordinary negligence and gross negligence. there appears to be no evidence that doing this by legislation in 1990 and 1989 respectively has destroyed or even damaged their professional trust business, and as lord kerr observed in his closing observations: “the fact that this [dissenting conclusion] would have resulted in discordance between the law in england and wales and that in guernsey could have been faced with equanimity, i believe. if …. the placing of reliance on a responsible person to manage property so as to promote the interests of the beneficiaries of a trust is central to the concept of trusteeship, denying trustees the opportunity to avoid liability for their gross negligence seems to be entirely in keeping with that essential aim.” 40 38 1997 2 all e.r. 705 at 711d. 39 [2011] ukpc 13 at [74]. 40 ibid at [180]. unincorporated associations: property holding, charitable purposes and dissolution 211 denning law journal 2013 vol 25 pp 211 223 case commentary ‘get out of jail free’ card: the courts’ offer of assistance to errant trustees miguel colebrook  introduction decisions taken by trustees have consequences. when trustees make mistakes, especially mistakes that cost the trust fund dearly, can the courts ever erase those errors and let the trustees unwind what they have done and start afresh? to do so, of course, has obvious advantages for both the trustees and those beneficiaries affected by the mistakes, but it is correspondingly disadvantageous for any outsiders who might be equally affected by the court‟s decision to erase in england most typically her majesty‟s revenue and customs. for a long time, the answer to the question posed seemed to be yes. this invaluable „get out of jail free‟ card was delivered to errant trustees by virtue of what was routinely known as the rule in re hastings-bass.the supreme court, the highest court in the land, has now indicated that this is not right, that re hastings-bass has been misunderstood for over 23 years, 1 and that trustees are not so roundly protected by such a rule. however, in reaching its conclusions, it appears that the supreme court may have abolished one rule and replaced it with another, which also seems to benefit trustees. assisting trustees: development of the court award of a ‘get out of jail free’ card the decision of the english court of appeal in re hastings-bass 2 has now obtained the status of a „rule‟. the case concerned a power of advancement exercised pursuant to section 32 of the trustee act 1925. there were two settlements, one in 1947 and one in 1957. the trustees of the 1947  miguel colebrook, llb 2013 (cantab), llm 2014 candidate (harvard). the author is grateful to professor sarah worthington, and two anonymous referees for their comments. 1 this approximation reflects the obiter comments made by lord justice lloyd in pitt v holt (ca) that the contemporary understanding of the rule in re hastings-bass was developed in mettoy pension trustees v evans, a decision taken in 1990. 2 [1974] ewca civ 13; [1975] ch 25. case commentary 212 settlement transferred funds from that settlement into the 1957 settlement to be held subject to the terms of the 1957 settlement. subsequently a dispute arose concerning whether estate duty was payable. the judge at first instance held that the 1947 settlement trustees did not effectively exercise the power of advancement in a manner which would demand that estate duty became payable on the settlor‟s death. the court of appeal reversed the decision of plowman j. the operative part of the judgment concerned the rule against perpetuities; however, the following dictum expressed by buckley lj became known as the rule in re hastingsbass: 3 “where by the terms of a trust (as under section 32) a trustee is given a discretion as to some matter under which he acts in good faith, the court should not interfere with his action notwithstanding that it does not have the full effect which he intended, unless (1) what he has achieved is unauthorised by the power conferred upon him, or (2) it is clear that he would not have acted as he did (a) had he not taken into account considerations which he should not have taken into account, or (b) had he not failed to take into account considerations which he ought to have taken into account.” the rule in re hastings-bass is primarily invoked in cases where trustees have exercised their discretion without a full appreciation of the fiscal consequences of doing so. in many circumstances, and somewhat peculiarly, the trustees themselves have sought to have their decision overturned on the dubious ground that they would not have exercised their discretion in the manner they did had they considered the full consequences of their actions. mr. justice warner in mettoy pension trustees ltd. v evans restated the rule in positive terms: “where a trustee acts under a discretion given to him by the terms of the trust, the court will interfere with his action if it is clear that he would not have acted as he did had he not failed to take into account considerations which he ought to have taken into account.” 4 the language of mr. justice warner is significant; it bears on the issue of whether the trustee‟s action is void or voidable. his use of the term interfere suggested the appropriate remedy was voidness in contradistinction to mere voidability. sir robert walker accurately emphasised the practical importance of the distinction between void and voidable when writing extra-judicially as a lord justice of appeal: 3 ibid 41. 4 [1990] 1 wlr 1587 (ch) 1621. see also sieff v fox [2005] ewhc 1312, [2005] 1 wlr 3811 (ch) 3847 (lloyd lj). the denning law journal 213 “if an appointment made by trustees may be void, despite having been (to all outward appearances) arrived at and recorded in the proper manner, it may lead to great uncertainty. the matter might be raised many years afterwards, when the trust fund had been distributed (and tax paid) on the assumption that the appointment was valid. if on the other hand it was merely voidable, all the restrictions appropriate to the equitable remedy of rescission would come into play, including delay and the acquisition of third-party rights.” 5 the importance of having a rule with defined parameters is that it limits the discretion of the court so that consistent and foreseeable outcomes can be achieved. furthermore beneficiaries under a trust are able to enforce their primary right under a trust – to require good administration by trustees – more readily where a rule, which operates on a trustee‟s discretion, is certain. notwithstanding the ability of the courts to state the rule in re hastings-bass clearly, its scope remained uncertain and varied from case to case. in amp (uk) v barker, 6 the high court held that to invoke the rule in re hastingsbass the court must be shown that the trustee might have acted differently and not necessarily would have acted differently. mr. justice lightman in abacus trust company v barr 7 required that there must have been a breach of trust to apply the rule in re hastings-bass. the requirement that there be a breach of trust was subsequently disapproved by lord justice lloyd in sieff v fox. 8 lloyd lj explained that there was no requirement to show a breach of duty before the rule in re hastings-bass could be invoked. uncertain scope: when will the courts dispense the valuable ‘get out of jail free’ card? errant trustees will be eager to engage a rule that effectively gives them another attempt at executing their power in a way which would benefit the trust. however the courts have been unclear on what was needed to invoke the rule in re hastings-bass and what its remedial consequence would be. uncertainty surrounding the scope of the rule had obvious disadvantages – chief among them being inconsistent applications of the rule. lord neuberger of abbotsbury, writing extra-judicially, observed that due to this uncertainty: 5 sir robert walker, the limits of the principle in re hastings-bass 13 kclj 173, 176 – 177. 6 [2000] ewhc ch 42; [2001] pens lr 77 (ch) 96. 7 [2003] ewhc 114; [2003] ch 409 (ch) 418. 8 sieff (n 5) 80. case commentary 214 “the hasting-bass principle infringes the most fundamental requirements of any legal principle”, 9 which is, of course, certainty. where the principle underpinning the rule was uncertain, there was difficulty with justifying the application of the rule. was the rule in re hastings-bass meant to operate like any other contractual vitiating factor? lord neuberger expressed concern that: “the circumstances where the principle applies are not in accordance with the law applicable to contractual transactions, where mistake only vitiates a document „when the element of consent is totally lacking.‟” 10 lord walker expressed a similar sentiment and suggested that a more demanding, certain, and principled test could curb the unwelcomed tendencies emanating from the rule. 11 three crucial uncertainties that surrounded the rule in re hastings-bass lead to three questions: first, did the rule apply solely to dispositive powers? second, should the rule be governed by the requirements for rescission? third, did the application of the rule result in the transaction being void or voidable? in relation to the first question, it was unclear whether the rule in re hastings-bass applied only to dispositive powers – that is power exercisable in respect of trust property in favour of objects – as opposed to management or administrative powers. in re duxbury’s settlement trust 12 the decision of the court of appeal suggests that the power to appoint new trustees fell outside the scope of the rule. similarly, the power to enter, vary or cancel a contract with a third party was held to fall outside the rule. 13 michael ashdown defended the rule in re hastings-bass. according to ashdown the rule facilitated proper administration by trustees. if ashdown‟s argument is correct and the rule was concerned with protecting „the beneficiaries‟ entitlement to proper performance by trustees of their duty to consider’ 14 there is difficulty in prescribing the rule only to mistakes related to dispositive powers. it is possible that the rule was restricted to dispositive powers in an attempt to provide added protection against errant trustees dissipating trust assets; however, it was unclear why added protection was not needed to defend against trustees doing things like saddling the trust with detrimental contractual liabilities. in relation to the second question, it was unclear whether the rule in re hastings-bass should be made consistent with the requirements governing the 9 lord neuberger, aspects of the law of mistake: re hastings-bass trusts & trustees (2009) 15 (4) 189, 194. 10 gallie v lee [1970] ukhl 5, [1971] ac 1004 (hl) 1026 (lord wilberforce). 11 walker (n 6) 183. 12 [1994] ewca civ 21; [1995] 1 wlr 425 (ca) 428. 13 donaldson v smith [2006] ewhc b9 (ch), [2007] wtlr 421 [53] – [54]. 14 michael ashdown, in defence of the rule in re hastings-bass trusts & trustees (2010) 16 (10) 826, 848. the denning law journal 215 rescission of deeds executed by mistake. the seminal statement outlining the test for mistake was made by lord justice lindley in ogilvie v littleboy: “a donor can only obtain back property which he has given away by showing that he was under some mistake of so serious a character as to render it unjust on the part of the donee to retain the property given to him.” 15 mr. justice millet (as he then was) in gibbon v mitchell held that a deed will not be set aside unless “the mistake is as to the effect of the transaction itself and not merely as to its consequences or the advantages to be gained by entering into it.” 16 the rule in re hastings-bass merely required a failure to account for relevant information and thereby set a threshold for avoiding a transaction well below the littleboy and mitchell tests. notwithstanding the rule in re hastings-bass was not grounded in mistake, if the remedial consequence of applying the rule was setting aside the transaction, it was unclear why the requirement of the rule was not aligned with those governing the rescission of deeds executed by mistake; which would have a similar effect. in relation to the third question, and in many ways the most controversial question surrounding the rule in re hastings-bass was whether the application of the rule lead to the trustee‟s exercised discretion being declared void ab initio or merely voidable, and thereby made subject to ordinary bars of rescission (laches, third party rights etc.). richard nolan observed that “[i]f a fiduciary did have authority to do what he did, but acted on the basis of a flawed decision, then his action should be voidable, rather than void.” 17 this view contrasts with the decision in mettoy pension trustees v evans where it was suggested that the appropriate remedy was a declaration that the exercise of power was void. where a trustee fails to take into account relevant information before exercising their discretion, undoubtedly the resulting decision is flawed. the issue concerning whether the consequence was a determination that the transaction was void or voidable is not a trivial one, as the latter would have offered greater protection to third parties than the former. if the action was merely voidable it would stand until set aside, with the result that, for example, taxes would be payable on the transaction. these three uncertainties invariably made it difficult for the court to apply the rule in re hastings-bass consistently. much of the academic criticism aimed at the rule reacted to them. the general consensus was that a rule with such far-reaching consequences ought to be definite in scope and well structured so as to avoid abuse of the rule and unfairness to parties external to 15 (1897) 13 tlr 399 (ca) 400. 16 [1990] 1 wlr 1304 (ch) 1309. 17 richard nolan, “controlling fiduciary power” (2009) 68 clj 293, 321. see also ashdown (n 15) 848. case commentary 216 the trust. similarly, it was difficult to justify the existence of the rule in light of its inconsistency with established legal principles. shifting reliance: the supreme court introduces fresh uncertainty the decision in pitt v holt and futter v futter in pitt v holt the claimant, mrs. pitt, acted as the receiver for her husband. mrs. pitt, advised by professional financial advisers, gave no thought to liability for inheritance tax when executing the settlement. consequently, large inheritance tax liabilities arose following her husband‟s death. the claimants brought an action for a declaration that the settlement should be setaside in reliance on the rule in re hastings-bass, or, alternatively, relief in equity, relying on the doctrine of mistake. in futter v futter the claimant, mr. futter, settled assets on two discretionary trusts. the trustees exercised their power of enlargement so as to avoid incurring capital gains tax. however, the trustees‟ legal advisors had overlooked a statutory provision that undermined the premise on which the transactions were based. consequently large capital gains tax liabilities were incurred. the claimants brought an action for a declaration that the enlargement and advancements should be set-aside also in reliance on the rule in re hastings-bass. the court of appeal decision although the decision of the court of appeal 18 is superseded by the supreme court‟s 19 decision, it is instructive to begin from the principled and well-reasoned judgment of lloyd lj, as much of lord walker‟s analysis in the supreme court builds on that judgment, and often merely restates what was said in the court of appeal. the court of appeal, while overturning the decision of the judge at first instance in both appeals, held that the so-called re hasting-bass rule didn‟t actually exist, rather it was a rule developed on a misunderstanding of summary observations made in re hastings-bass. 20 his lordship went on to attempt to explain the true principle. first, if trustees act outside trust power their actions are void. 21 if on the other hand trustees act within power, but in some way improperly, provided they act in good faith and for proper purposes their actions will at best be voidable. where a transaction is voidable it is 18 [2011] ewca civ 197; [2012] ch 132. 19 [2013] uksc 26; [2013] 2 wlr 1200. 20 [2011] ewca civ 197; [2012] ch 132 [94]. 21 ibid [96]. the denning law journal 217 subject to the discretion of the court to set it aside, whereas decisions that are void are automatically vitiated and set aside. second, where a decision made by a trustee is within power but the action gives rise to a breach of duty, the transaction will be voidable at the instance of a beneficiary who was adversely affected. 22 the significance of the court of appeal‟s decision was that it introduced that it is the beneficiaries who must control the exercise of trustees‟ discretionary powers. the law as stated by lloyd lj would preclude the trustees themselves from turning around after the event and saying “i did something wrong, get me out of here.” the policy underpinning this point must be correct. the power vested in trustees is for the benefit of beneficiaries; surely it must be the beneficiaries who bring a claim before the court with the aim of enforcing proper administration of the trust. it cannot be up to the trustee to decide whether to bring the claim or not and in effect decide whether to enforce the proper administration of the trust. furthermore, the court of appeal was adamant that only where a decision was made by a trustee in breach of duty, but otherwise within the trust power, would the transaction be voidable. as relief now turns on the fiduciary‟s breach of duty in making his decision, it is instructive to be aware of what duties the court of appeal outlined as pertinent when making decisions. lloyd lj outlined four duties of trustees:  the “duty to know what is the permissible area of selection and then consider responsibly, in individual cases, whether a contemplated beneficiary was within the power and whether, in relation to other possible claimants, a particular grant was appropriate”; 23  the duty “that the power can be exercised only if it is for the benefit of the [appointee] or ... if it is thought to be „a good thing‟ for [the appointee to receive the appointment] ... that good reason must be beneficial to the person to be advanced; it cannot be exercised capriciously or with some other benefit in view.”; 24  the duty to “address ... the question what is fair and equitable in all the circumstances. the weight to be given to one factor as against another is for [the trustees]”; 25 22 ibid [99]. this represents a departure from lloyd lj initial observation in sieff where he doubted that a breach of fiduciary duty was required. 23 ibid [102]; see also in re baden’s trust deeds [1970] ukhl 1, [1971] ac 424 (hl) 449. 24 ibid [104]; see also in re pauling’s settlement trusts [1963] ewca civ 5, [1964] ch 303 (ca) 333. 25 ibid [76]; see also edge v pensions ombudsman [1999] ewca civ 2013, [2000] ch 602 (ca) 627. case commentary 218  the statutory “duty of care, obliging [the trustees] to exercise such skill and care as is reasonable in the circumstances” or under the similar equitable duty, “which continues to apply to cases where the statutory duty does not.” 26 these four duties according to lloyd lj are owed until they are discharged, typically by performing the duty. the duties differ from each other and that is significant as to when the duty will cease to exist. prima facie, the ability of beneficiaries to challenge a transaction based on an incorrect execution of a duty ought to be related to the strictness of the duty. for example, the first duty is a strict one – trustees must know the permissible area of selection. however, this was not the approach adopted by the court of appeal. lloyd lj appeared to say that trustees‟ decisions are immune from attack by simply being careful and reasonable: carefully getting professional advice and reasonably relying on it will result in proper performance of all four duties. if there is any flaw in what was otherwise a well-reasoned judgment it is this point of careful and reasonable behaviour translating to proper execution of duties absent any thought of how strict the duty is. to amplify, incorrect advice is simply incapable of allowing the trustee to know the permissible area of selection, even if they were careful in procuring the advice and reasonably relied on it. in such a circumstance there ought to be scope for beneficiaries to attack the resulting transaction, but the court of appeal said this is not the case. it took the view that it is an absolute defence that immunizes trustees‟ decisions from attack, where they receive professional advice and reasonably rely on it. in pitt v. holt (but not in futter v futter), the fiduciaries also argued that the transaction should be unravelled, relying on the doctrine of mistake. in the court of appeal this ground was unsuccessful. lloyd lj reasoned that notwithstanding a mistake had been made; it was a mistake neither as to an existing fact that was basic to the transaction, nor as to the effect of the transaction. rather, the mistake related merely to the fiscal consequences of the transaction notwithstanding it was of „sufficient gravity‟ to satisfy the ogilvie v littleboy 27 test. 28 the court of appeal was at pains to ensure an appropriate and necessary structure, with sufficient rigor, for permitting relief against a decision taken under advice by a fiduciary. the strictness with which the court of appeal considered the law should apply equitable principles, is observant of the far-reaching consequences of these principles, and the ensuing disarray if they are applied enthusiastically. indeed conaglen supported a restrictive approach by observing, “constraints 26 ibid [107]. 27 ogilvie (n 16). 28 futter (n 19) 219. the denning law journal 219 on equitable intervention are justifiable, in the interests of the stability of voluntary transactions.” 29 indeed a restrictive approach is apposite particularly in light of the unilateral nature of the mistake operative in circumstances giving rise to consideration of the rule in re hastings-bass. supreme court decision lord walker concurred with lloyd lj on the main issues concerning the scope of the rule in re hastings-bass, but he differed with respect to the requirements for invoking the doctrine of mistake. 30 his lordship observed that the error leading to what became known as the rule in re hastings-bass occurred because of a conflation of three separate strands of legal doctrine, blurring their distinctions and resulting in a new rule distinct from what was actually decided in re hastings-bass. furthermore, his lordship, in agreement with the earlier sentiment expressed by lloyd lj, commented that the rule would more aptly be termed „the rule in mettoy‟. 31 with respect to the rule in re hastings-bass, lord walker outlined three categories 32 , the existence of the third being a point of contention. the first category was termed excessive execution. 33 excessive execution concerns the scope issue and deals with circumstances where actions are performed which fall outside the legitimate remit of the trustee‟s power. the remedial consequence of excessive execution is that the transaction is void. 34 it must be emphasised that motives do not factor into the scope issue – transactions entered into outside the power are void without further deliberation into the motives of the trustees. it follows that it is ideal for a beneficiary, who wishes to have a transaction unravelled, to argue that the trustee acted outside the power. however, a finding that the trustee did indeed act outside the power and therefore the transaction is void does not necessarily result in a favourable outcome for the beneficiary. it must be observed that voidness of the transaction and unwinding the transaction are distinct considerations. although the following observation did not fall for consideration by their lordships in the supreme court it may be instructive, nonetheless, to emphasise what appears to be a salient point. where a disposition has occurred under a void transaction, unwinding can occur only where the 29 mattew conaglen, “reviewing the review of fiduciary discretions” clj (2011) 70(2) 301, 303. 30 futter (n 20). 31 ibid [1]. 32 the issue of mistake constituted a fourth and separate consideration. 33 [2013] uksc 26; [2013] 2 wlr 1200 [60]. 34 ibid [58]. case commentary 220 individual receiving trust assets is a donee or where he is not equity‟s darling – viz. he gave consideration but with notice. the upshot being that a beneficiary has a further evidential burden after arguing the transaction should be declared void for want of power. lord walker‟s second category was termed inadequate deliberation. 35 inadequate deliberation occurs where the trustee acts within the scope of the power, but the power is exercised without taking into account considerations that should have been considered or taking into account considerations that they should not have considered. the remedial consequence of inadequate deliberation is that the transaction is voidable if, and only if, taking into account the irrelevant information or not taking into account relevant information is a breach of fiduciary duty. 36 in effect, the second category requires a failure so inadequate that it amounts to a breach of fiduciary duty. from a policy perspective this tightening of the requirements makes it more difficult now than before to make a transaction voidable and thereby responds to the view of some commentators that the rule in re hastings-bass was pro-trustee. furthermore, the difficult „would have/might have‟ debate is out-flanked, as the requirement for a breach of duty replaces the consideration of whether the trustee, had he been properly informed, would have (or might have) exercised the power differently. significantly, “[i]f it is voidable, then it may be capable of being set aside at the suit of a beneficiary, but this would be subject to equitable defences and to the court's discretion.” 37 it follows that the proper plaintiff is a beneficiary and not the defaulting trustee. in the author‟s view, the decisions of the court of appeal and supreme court raise a doctrinal question with respect to the second category – inadequate deliberation. does category two include negligence? inadequate deliberation, as defined by the supreme court can indeed cover negligence. the first category (excessive execution) is concerned with scope, but the second category (inadequate deliberation) appears to be concerned with procedure and therefore seems to embrace negligence. but there is some reticence about including negligence in category two because we typically do not unwind transactions for negligence. negligent conduct typically results in a claim for loss. undoubtedly future cases will have to refine this category so as to determine what the proper limitation of the second category is. lord walker‟s third category, expressed as an intermediate category between the first and second, is called fraud on a power. fraud on a power occurs where the trustee exercises the power within its proper scope but for a 35 ibid [60]. 36 ibid [70]. 37 ibid. the denning law journal 221 positively improper purpose. 38 the cases cited under this category state that the remedial consequence of fraud on a power is that the transaction is void. the supreme court expressed some concern over this line of cases but declined to give judgment on whether this category was correct, as it was unnecessary for deciding the appeals. richard nolan, 39 however, has commented that the fraud on a power doctrine prevents trustees from acting capriciously: it means that the trustees must not “act for reasons which… could be said to be irrational, perverse or irrelevant to any sensible expectation of the settlor.” 40 it follows that there may be a benefit in retaining the doctrine subject to the court attenuating the remedial consequence of its application. the other issue that fell for consideration by the supreme court concerned setting aside a voluntary disposition for mistake. lord walker held that the true test “is simply for there to be a causative mistake of sufficient gravity[:] the test will normally be satisfied only when there is a mistake either as to the legal character or nature of a transaction, or as to some matter of fact or law which is basic to the transaction.” 41 additional guidance for applying the test outlined by their lordships required that the gravity of the mistake must be assessed objectively in terms of injustice or using an equitable term, unconscionability. 42 according to their lordships this test was satisfied in pitt v holt and that appeal was allowed on this ground. lord walker‟s views on mistake in pitt v holt represent a marked change from his views expressed extra-judicially. 43 lord walker and lord neuberger, both writing extra-judicially, advocated that the law be aligned with the requirements for avoiding a transaction on the grounds of non est factum. however, the test developed by lord wilberforce in gallie v lee, in relation to the doctrine of non est factum, is more exacting than the test stated by the court of appeal in pitt v holt. the supreme court advocated an even lower threshold for invoking the doctrine of mistake to avoid a voluntary disposition with the foreseeable untoward effect of shifting reliance from the rule in re hastings-bass to mistake. the linchpin of the mistake doctrine is justice and/or unconscionability; but as is expected from the use of amorphous terms, they are fig leaves for boundless discretion and largely incompetent at producing consistent outcomes. indeed, the supreme court acknowledged that their decision would be subversive of certainty, but viewed this as necessary for working justice: 38 see cloutte v storey [1911] 1 ch 18 and vatcher v paull [1915] ac 372. 39 nolan (n 18) 321; see also ashdown (n 15) 826. 40 re manisty's settlement [1974] ch 17 (ch) 26 (templeman j). 41 futter (n 20) [122]. 42 ibid [126]. 43 walker (n 6). case commentary 222 “the court cannot decide the issue of what is unconscionable by an elaborate set of rules. it must consider in the round the existence of a distinct mistake (as compared with total ignorance or disappointed expectations), its degree of centrality to the transaction in question and the seriousness of its consequences, and make an evaluative judgment whether it would be unconscionable, or unjust, to leave the mistake uncorrected. the court may and must form a judgment about the justice of the case.” 44 having an elaborate set of rules and working justice in circumstances where a trustee has made a mistake while exercising discretionary powers are not mutually exclusive, as lord walker appears to suggest. justice requires principled outcomes – the courts are more likely to arrive at a principled outcome where there exists a structured doctrine of mistake. the introduction of discretion raises the spectre of litigation rather than out-of-court settlement. where it is suggested that a trustee was labouring under a mistake it cannot be said whether the mistake was causative and of sufficient gravity short of pursuing litigation and requiring the court to evaluate the circumstances surrounding the mistake. this raises transaction costs. lord walker‟s pronouncements about mistake in the supreme court were not merely cosmetic, or obvious, from the previous case law surrounding mistake. whereas lloyd lj, in the court of appeal, had methodically worked through the previous case law to develop a principled and defined doctrine of mistake, lord walker stripped away certainty for discretion. the result is that there is now greater difficulty in determining the boundary dividing mistakes of causative significance, for which the court will provide relief, and those inadequate to invoke the discretion of the court. the decision as to which side a particular case falls will be susceptible to judicial manipulation, largely based on the court‟s perception of the merits of the claim. conclusion the „get out of jail free‟ card delivered to errant trustees by virtue of the rule in re hastings-bass meant that lower courts often found themselves bound by a plethora of case law that was largely unsatisfactory. reorganisation of the rule into a structured principle began with the court of appeal decision in pitt v holt and futter v futter and culminated in the appeal from that decision to the supreme court. the supreme court has now confirmed that re hastings-bass has been misunderstood for over 23 years, and that trustees are not so roundly protected by such a rule. 44 futter (n 20) 128. the denning law journal 223 the supreme court‟s decision in the joined appeals of pitt v holt and futter v futter has clarified some of the uncertainties surrounding the rule in re hastings-bass. in effect, their lordships affirmed much of the court of appeal‟s decision, principally from the only fully reasoned judgment of lloyd lj. lord walker, reading the unanimous decision of the supreme court differed from lloyd lj on the mistake point and in doing so, it is argued, shifted the „get out of jail free‟ card away from the rule in re hastings-bass towards mistake. notwithstanding the success of the supreme court in organising the principles surrounding the rule in re hastings-bass so that it does not operate capriciously, their lordships introduced fresh uncertainty and continued the dubious assistance given to errant trustees through their ruling on mistake. as a consequence of the supreme court‟s conclusions much of the criticisms formerly levied against the rule in re hastings-bass are likely to become criticisms of the doctrine of mistake. for better or worse the supreme court‟s statement of law is absolute. trustees remain armed with a „get out of jail free‟ card, but the operative play is no longer receipt of wrong advice but a causative mistake. for the purposes of right to self-determination, how does one define people in context of kashmir 43 the denning law journal 2013 vol 25 pp 43-89 dialogue and declarations of incompatibility under section 4 of the human rights act 1998 christopher crawford  abstract it has been argued that the human rights act 1998 (‗hra‘) establishes a ‗dialogue‘ between the courts, parliament and the executive. this ‗dialogue‘ is supposed to be an exchange of ideas about rights pursuant to which policy goals are revised, but not blocked, following judicial decisions and takes place predominantly when courts issue declarations of incompatibility under s 4 of the hra. there have been 18 cases in which declarations have become final. this article considers those 18 cases and their legislative aftermaths. it reveals, firstly, that parliament has some capability of dealing with rights issues without the courts‘ prompting, secondly, that a declaration can certainly lead to constructive modification of public policy but may also lead to less effective policy and, thirdly, that parliament has no real freedom to disagree with the conclusions of the courts on questions of rights when a declaration has been made. 1. introduction when the human rights act 1998 (‗hra‘) was enacted, many commentators claimed that it would establish a ‗dialogue‘ between the courts, parliament and the executive. 1  barrister-at-law, doctoral candidate at queensland university of technology. 1 sandra fredman ‗bringing rights home‘ (1998) 114 (october) lqr 538, 538-539; sandra fredman ‗allies or subversives? the judiciary and democracy‘ (1998) 32 is lr 407, 422-424; sandra fredman ‗judging democracy: the role of the judiciary under the hra 1998‘ (2000) 53(1) clp 99, 119; ben emmerson ‗constitutional law: human rights‘ [1998] ehrlr 663, 663; francesca klug ‗the human rights act 1998, pepper v hart and all that‘ [1999] pl 246, 248; murray hunt ‗the human rights act and legal culture: the judiciary and the legal profession‘ (1999) 26(1) j law & soc 86, 89-90; joanna miles ‗standing under the human rights act 1988: theories of rights enforcement and the nature of public law adjudication‘ (2000) 59(1) clj 133, 164; joanna harrington ‗rights brought home: the united kingdom adopts a ‗charter of rights‘‘ (2001) 11 const forum const 105, 111. dialogue and declarations of incompatibility under section 4 of the human rights act 1998 44 the concept of ‗dialogue‘ under the hra has been explained by alison young in her book, parliamentary sovereignty and the human rights act. 2 in her book, young defined ‗democratic dialogue models‘ as protections of human rights that do not grant the courts the final ability to make authoritatively determinative accounts as to the compatibility of legislation with human rights; rather, ―mechanisms are incorporated into the legal protection of rights that enable the legislature to respond to judicial determinations as to the compatibility of legislation with human rights‖. 3 young noted that the term ‗democratic dialogue‘ derived from a wellknown journal article by peter hogg and allison thornton (nee bushell). 4 in their article, hogg and thornton argued that where judicial decisions were open to legislative reversal, modification or avoidance, it was appropriate to regard the relationship between the courts and the legislature as a dialogue. 5 it was upon this basis that young found it ‗easy to conclude‘ 6 that the hra provided for a democratic dialogue model of rights protection: judicial decisions taken under both ss 3 and 4 of the hra were open to reversal, modification or avoidance by the legislature. section 3(1) of the hra is an interpretative provision. it provides that, so far as it is possible to do so, primary and subordinate legislation in the united kingdom must be read and given effect in a way that is compatible with the rights set out in schedule 1 to the hra. the rights set out in schedule 1 come from the european convention on human rights (‗convention‘). 7 section 3(2)(b) provides that, if primary legislation is incompatible with convention rights, that does not affect its validity, continuing operation or enforcement. section 4(2) of the hra provides that if a court 8 is satisfied that primary legislation is incompatible with convention rights, it may make a declaration 2 alison young, parliamentary sovereignty and the human rights act (hart publishing 2009). see also richard clayton, ‗judicial deference and democratic dialogue‘: the legitimacy of judicial intervention under the human rights act 1998‘ [2004] pl 33; cf tom hickman ‗constitutional dialogue, constitutional theories and the human rights act 1998‘ [2008] pl 306. 3 young (n 2) 25-26. 4 peter hogg and allison bushell, ‗the charter dialogue between courts and legislatures (or perhaps the charter of rights isn‘t such a bad thing after all)‘ (1997) 35 ohlj 75. 5 ibid 79-80. 6 young (n 2) 113. 7 convention for the protection of human rights and fundamental freedoms, opened for signature 4 november 1950, 213 unts 221 (entered into force 3 september 1953). 8 when the hra was originally enacted, the term ‗court‘ was defined in s 4(5) as (a) the house of lords, (b) the judicial committee of the privy council, (c) the courtsthe denning law journal 45 of that incompatibility. section 4(6)(a) states that a declaration does not affect the validity, continuing operation or enforcement of the statutory provision in respect of which it is given. section 10(2) provides that, if a court makes a declaration then, if a minister considers that there are compelling reasons, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility. schedule 2 to the hra sets out the process by which remedial orders are made. young asserted that ss 3 and 4 established two different forms of dialogue. 9 she contended that dialogue took place predominantly when courts issued s 4 declarations. 10 it is this form of dialogue with which this journal article is concerned. young argued that a declaration provided a signal to parliament that legislation contained provisions that were contrary to convention rights. she asserted that a declaration could prompt the legislature to debate if and how to respond to the courts; it could respond either by amending legislation to ensure its compatibility with convention rights, or by providing a justification for its maintenance on the statute books. 11 importantly, young claimed that the legislature had the freedom to disagree with the conclusions of the courts as to the modifications required to ensure convention compatibility. 12 the dialogue portrayed by young is akin to the ‗institutional interaction‘ described by leighton mcdonald: an exchange of ideas about human rights between the parliament and the courts pursuant to which policy goals are revised, but not blocked, following judicial decisions. 13 the attraction of the concept of dialogue is obvious: if parliament chooses to amend legislation following a declaration then the amendment should be constructive from a rights standpoint; if it disagrees with the judicial decision martial appeal court, (d) in scotland, the high court of justiciary sitting otherwise than as a trial court or the court of session and (e) in england and wales or northern ireland, the high court or the court of appeal. following the creation of the uk supreme court, s 4(5)(a) was amended by omitting the words ‗house of lords‘ and inserting the words ‗supreme court‘. 9 young (n 2) 26. young noted, in passing, that the derogation power and ‗the qualified rights found in articles 8-11 of the convention‘ would also facilitate dialogue but she did not explore the issue any further than that. she clearly considered ss 3 and 4 to be the main drivers of dialogue: see young (n 2) 113-114. 10 ibid 10. 11 ibid. 12 ibid 116. 13 leighton mcdonald, ‗new directions in the australian bill of rights debate‘ [2004] pl 22, 28. dialogue and declarations of incompatibility under section 4 of the human rights act 1998 46 then it is free to do so. in other words, dialogue should lead ‗to a better outcome for rights as well as democracy‘. 14 perhaps unsurprisingly, some say that dialogue under the hra is nothing more than a ‗fantasy‘ that merely raises the question of who gets the last word. 15 james allan has argued that it is the judiciary that has the final say on rights issues. 16 allan contended that, in practice, is almost always impossible for a legislature to disagree with the conclusions of the courts, 17 contrary to young‘s claim. allan asserted that, as the judges‘ views always prevailed over those of the legislature, that in no way resembled a dialogue. 18 young‘s arguments are interesting in light of the fact that the government that introduced the hra did not actually assert that it would precipitate ‗democratic dialogue‘. 19 they are of further interest in light of the fact that two senior law lords, lord bingham of cornhill and lord phillips of worth matravers, expressly denied that the hra involved a dialogue between the courts, parliament and the executive. 20 they are of still further interest when one considers that, despite the protestations of lords bingham and phillips, many commentators have continued to maintain that the hra has established a dialogue about rights between the three arms of government. 21 the purpose 14 irene khan, ‗human rights in an age of terror‘ in nicolas kang-riou, confronting the human rights act 1998: contemporary themes and perspectives (taylor and francis 2012) 105. 15 keith ewing, ‗doughty defenders of the human rights act‘ in nicolas kang-riou, confronting the human rights act 1998: contemporary themes and perspectives (taylor and francis 2012) 122. for other criticisms of dialogue under the hra, see keith ewing and joo cheong tham, ‗the continuing futility of the human rights act‘ [2008] pl 668, 691; philip sales and richard ekins, ‗rights-consistent interpretation and the human rights act 1998‘ (2011) 127 (april) lqr 217, 236; ian leigh and roger masterman, making rights real: the human rights act in its first decade (hart publishing 2008) 118. 16 james allan, ‗the victorian charter of human rights and responsibilities: exegesis and criticism‘ (2006) 30(3) mulr 880, 914. 17 ibid 915. 18 ibid 913. 19 there was no mention of dialogue in either the consultation paper or the white paper that preceded the introduction of the hra: see jack straw and paul boateng ‗bringing rights home: labour‘s plans to incorporate the european convention on human rights into uk law‘ [1997] ehrlr 71; rights unit, uk parliament, rights brought home: the human rights bill (cm 3782, 1997). 20 joint committee on human rights, minutes of evidence taken on monday 26 march 2001: examination of witnesses (2000-01, hl 66-ii, hc 332-ii), [78]. 21 francesca klug, ‗the human rights act a ‗third way‘ or ‗third wave‘ bill of rights‘ [2001] ehrlr 361, 370; richard edwards ‗judicial deference under the human rights act‘ (2002) 65 mlr 859, 867; lizzie barmes ―adjudication and the denning law journal 47 of this article is to examine the extent to which dialogue does take place when courts issue declarations of incompatibility under s 4 of the hra. as at 1 january 2013, 27 declarations of incompatibility had been made by the courts since the hra came into force on 2 october 2000. of these, 18 have become final (in whole or in part) and are not subject to further appeal whilst 9 have been overturned on appeal. 22 the 18 cases in which declarations have been finalised and their legislative aftermaths will be considered below in chronological order from earliest to most recent. 2. r (h) v london north and east region mental health review tribunal [2001] ewca civ 415, [2002] qb 1 this case concerned a patient who made an application to a mental health review tribunal to be discharged from detention in hospital, which was refused. the patient then sought judicial review by way of a declaration of incompatibility under s 4 of the hra, which was also refused. the patient appealed. the court of appeal allowed the appeal and declared that ss 72(1) and 73(1) of the mental health act 1983 were incompatible with the right to public opinion‖ (2002) 118 (october) lqr 600, 621; keir starmer ‗two years of the human rights act‘ [2003] ehrlr 14, 18; clayton (n 2) 42-45; bharat malkani ‗human rights treaties in the english legal system‘ [2011] pl 554, 575; po-jen yap ‗defending dialogue‘ [2012] pl 527, 527 n 2. 22 ministry of justice, united kingdom, responding to human rights judgments: report to the joint committee on human rights on the government’s response to human rights judgments 2011-12 (cm 8432, 2012), 40. in this report, it is recorded that, as at 31 july 2012, 27 declarations had been made by the uk courts. it is also noted that, of these 27 declarations, 19 had become final (in whole or in part) and were not subject to further appeal and 8 had been overturned on appeal. the report is incorrect in counting r (hooper) v secretary of state for work and pensions [2003] ewca civ 875 as a declaration that had become final. the correct interpretation of hooper is that a declaration was made at first instance in respect of repealed legislation: see r (hooper) v secretary of state for work and pensions [2002] ewhc 191 (admin). on appeal to the court of appeal, the declaration was discharged: see r (hooper) v secretary of state for work and pensions [2003] ewca civ 875 [1]. on appeal to the judicial committee of the house of lords, it was held that, as the relevant legislative provisions had been repealed, there was no point in their lordships making a declaration: see r (hooper) v secretary of state for work and pensions [2005] ukhl 29, [2005] 1 wlr 1681, 1696-7. accordingly, the making of the declaration in hooper was, in reality, overturned on appeal. therefore, as at 31 july 2012, 27 declarations had been made by the uk courts, of which 18 had become final (in whole or in part) and were not subject to further appeal and 9 had been overturned on appeal. dialogue and declarations of incompatibility under section 4 of the human rights act 1998 48 liberty under article 5(1)(4) of the convention in that, for the tribunal to be obliged to order a patient's discharge, the burden was placed upon the patient to prove that the criteria justifying his detention in hospital for treatment no longer existed; and that article 5(1)(4) required the tribunal to be positively satisfied that all the criteria justifying the patient's detention in hospital for treatment continued to exist before refusing a patient's discharge. in order to remove the incompatibility, the mental health act 1983 (remedial) order 2001 amended ss 72(1) and 73(1) to provide that a mental health review tribunal had to direct the discharge of a patient if it was not satisfied that the criteria justifying his/her detention in hospital for treatment continued to exist. the house of lords considered the mental health act 1983 (remedial) order 2001 on 11 april 2002. in moving the approval of the order, the labour government whip, lord filkin, made the following comments about h: ―it was the government‘s view that there was no discernible error of law in the court of appeal‘s judgment and in addition, the judgment was not out of line with the thrust of government policy intentions for new mental health legislation as set out in the white paper reforming the mental health act.‖ 23 the order was supported by the conservative and liberal democrat parties (the conservative peer, baroness noakes, described it as ‗clearly necessary‘) and was duly approved. 24 the court of appeal‗s decision in h was uncontroversial. all sides of british politics accepted that ss 72(1) and 73(1) of the mental health act 1983 were incompatible with the right to liberty. the declaration may very well have resulted in a constructive modification to legislation. 3. re an application for judicial review by mcr [2002] niqb 58 this case concerned a northern irishman who was charged with attempted buggery pursuant to s 62 of the offences against the person act 1861. the sexual offences act 1967 effectively decriminalised homosexual acts in private in england and wales but s 62 remained in force in northern ireland. the accused applied for a declaration that s 62 was incompatible with his 23 hl deb 1 april 2002, vol 633, col 601. see also hc deb 28 october 2002, vol 391, col 627 (jean corston). 24 hl deb 11 april 2002, vol 633, col 603 – 607. the denning law journal 49 right to a private life under article 8 of the convention. the application was not opposed by the crown. in a short judgment, the high court of justice in northern ireland referred to two decisions of the european court of human rights (‗ecthr‘) where it was noted that there was no pressing social need for the criminalisation of homosexual acts between consenting adult males performed in private. the court made the declaration sought pursuant to s 4 of the hra. by the time mcr was decided, the process of modernising british law on sexual offences had been underway for some time. a review of sex offences was set up by the uk government in 1999, the independent review group producing a consultation paper in july 2000. in addition the government carried out a review of part 1 of the sex offenders act 1997 and proposals were published for public consultation by home office in july 2001. these two reviews fed into a white paper, protecting the public: strengthening protection against sex offenders and reforming the law on sexual offences, published in november 2002. 25 relevantly, the white paper stated as follows: ―certain existing offences criminalise consensual sexual activity in private between men, which would not be illegal between heterosexuals or between women. in order to provide common sense and making policing the law fair and practicable, these offences will be replaced with generic offences. this will ensure that the criminal law protects everyone equally from non-consensual sexual activity, but does not criminalise sexual activity that takes place between consenting adults in private.‖ 26 the white paper was followed by the enactment of the sexual offences act 2003, which repealed s 62 of the offences against the person act 1861. by 2002, the british government accepted that it should not intervene in the personal, private relationships of consenting adults. 27 this was obviously the reason why the crown did not oppose the high court in northern ireland making the declaration of incompatibility. there is no reason to suspect that the decision in mcr was anything other than uncontentious. 25 arabella thorp, ‗the sexual offences bill (no 128) 2002-03 (uk)‘ (research paper 03/62 house of commons library, united kingdom parliament, 2003) 3. 26 secretary of state for the home department, protecting the public: strengthening protect against sex offenders and reforming the law on sexual offences (cm 5668, 2002) 10. 27 ibid 5 (foreword by the then home secretary, david blunkett). dialogue and declarations of incompatibility under section 4 of the human rights act 1998 50 4. international transport roth gmbh v secretary of state for the home department [2002] ewca civ 158, [2003] qb 728 this case concerned a penalty scheme created pursuant to s 32 of the immigration and asylum act 1999, which made carriers liable to a fixed penalty of £2,000 for every clandestine entrant to the united kingdom found concealed in a vehicle. the owner, hirer and driver were liable unless they could establish that they were acting under duress or that they had no knowledge of the clandestine entrant and that there was an effective system for preventing the carriage of clandestine entrants which was operated properly on the occasion in question. once the home secretary had issued a penalty notice a senior immigration officer could detain the vehicle if he considered there was a serious risk that the penalty would not be paid and no satisfactory alternative security had been given. in several joined proceedings, groups of claimants brought proceedings against the home secretary, challenging the lawfulness of the penalty scheme. the court of appeal held that the scale and inflexibility of the penalty without the possibility of mitigation or the right for the penalty to be determined by an independent tribunal were factors which made the scheme unfair and in breach of the claimants‘ right to a fair hearing under article 6 of the convention. the court of appeal also held that the scheme imposed an excessive burden on the carriers which was disproportionate to the objective to be achieved and was a breach of the claimants‘ right to peaceful enjoyment of their possessions under article 1 of the first protocol to the convention. accordingly, the court of appeal held that a declaration that the scheme was incompatible with article 6 of the convention and article 1 of the first protocol to the convention was appropriate. just before the court of appeal handed down its decision in roth, the government released a white paper on immigration and asylum policy. 28 the majority of the white paper proposals were incorporated into the subsequent nationality, immigration and asylum act 2002. 29 the new act also incorporated a response to roth. section 125 and schedule 8 of the nationality, immigration and asylum act 2002 amended the penalty scheme under s 32 of the immigration and asylum act 1999 by introducing a new 28 secretary of state for the home department, secure borders, safe haven: integration with diversity in modern britain (cm 5387, 2002). the white paper was published on 7 february 2012 (hc deb 7 february 2002, vol 379, col 1027). roth was handed down on 22 february 2002. 29 dallal stevens, ‗the nationality, immigration and asylum act 2002: secure boarders, safe haven?‘ (2004) 67(4) mlr 616, 617. the denning law journal 51 variable penalty of up to £4,000 for those carrying clandestine entrants by road or rail, a right of appeal to the county court against the imposition and/or size of the penalty and the power for the court to release a confiscated vehicle where it thought that penalty was not appropriate. 30 members of the government, including the home secretary, expressly stated that they thought the new penalty scheme was ‗fair‘. 31 although members of a government are hardly likely to say that new legislation is unfair, there is no evidence that they were uncomfortable with the new penalty scheme or with the roth decision. on the contrary, the lord chancellor indicated that he thought that the roth decision was principled and fair. 32 some conservative and liberal democrat lords clearly wanted to lessen the severity of the penalty scheme even more. 33 in those circumstances, it seems likely that a majority of parliament accepted, in a real way, the revised penalty regime brought about by roth. 5. r (anderson) v secretary of state for the home department [2002] ukhl 46, [2003] 1 ac 837 the claimant had been convicted of two murders for which he received mandatory life sentences. by his stated practice, adopted pursuant to his power to control the release of such prisoners under s 29 of the crime (sentences) act 1997, the home secretary received advice from the trial judge, the lord chief justice and departmental officials prior to deciding the minimum period to be served by the claimant. in fixing the claimant's tariff, 34 the home secretary set a longer period than that recommended by the judiciary. the claimant challenged the decision by way of judicial review. on 25 november 2002, the judicial committee of the house of lords declared that s 29 of the crime (sentences) act 1997 was incompatible with the right under article 6 of the convention to have a sentence imposed by an independent and impartial tribunal. 30 david blunkett, ‗uk government: criminal refugees to be removed from country‘ m2 presswire (online), 25 april 2002; m2 presswire, ‗uk government: new penalties for carrying illegal immigrants start tomorrow‘ m2 presswire (online), 9 december 2002. 31 ibid. see also hc deb 21 may 2002, vol 386, col 61wh (john denham). 32 lord irvine ‗the impact of the human rights act: parliament, the courts and the executive‘ [2003] pl 308, 318. 33 hl deb 17 july 2002, vol 637, col 1354 – 1357. 34 the minimum period of imprisonment that a murderer had to serve before release was considered was known as the ‗tariff‘. dialogue and declarations of incompatibility under section 4 of the human rights act 1998 52 anderson was a case ‗waiting to happen‘ 35 because judicial erosion of the home secretary‘s tariff-setting power had already begun by the time it was decided. 36 in may 2002, the ecthr held in stafford v united kingdom 37 that the home secretary's veto of a parole board's recommendation that a posttariff lifer should be released was contrary to the prisoner‘s right under article 5 of the convention to have the lawfulness of his detention decided speedily by a court. the home secretary, david blunkett, said the following in relation to the stafford judgment: ―i am disappointed with this judgment which has the effect of removing the home secretary‘s statutory power to decide the release – on parole board recommendations – of adult murderers whose tariff has expired…i am concerned that this judgment may serve as encouragement for those who would like to remove the home secretary‘s powers to set tariffs for adult murderers. if this judgment were to be used to support a legal process to achieve this, i would seek to use domestic legislation to enshrine the power of parliament to provide adequate punishment for the guilty – including life meaning life. policy on the protection of the public and punishment of the guilty must always be the domain of the elected parliament.‖ 38 it was pretty obvious that the home secretary thought that the stafford decision was wrong. 39 it was also clear that, as a result of stafford, mr anderson would probably win his appeal when it was heard later that year. 40 however, it was less obvious as to what the government intended to do if the result of mr anderson‘s appeal was as expected. in july, the government was maintaining that it was ―necessary for the maintenance of public confidence in the criminal justice system that decisions relating to the length of time a murderer spends in custody and release are taken by the home secretary‖ 41 ; however by october mr blunkett‘s aides were saying that the home secretary 35 christopher gale and annabelle james, ‗comment: mandatory life sentences and executive interference‘ (2002) 66 jcl 417, 421. 36 this process is described in detail in stephen shute ‗punishing murderers: release procedures and the ―tariff‖, 1953-2004‘ [2004] crim l rev 873. 37 (2002) 35 ehrr 32. 38 m2 communications ltd, ‗uk government: stafford judgement‘ m2 presswire (online), 28 may 2002. 39 stephen pollard, david blunkett (hodder and stoughton 2005) 4. 40 clare dyer, ‗blunkett loses key power to keep killers in jail‘ the guardian (london) 29 may 2002, 1.7. 41 david barrett, ‗we should decide killer‘s fate, says top judge‘ daily post (london) 9 july 2002, 19. the denning law journal 53 would simply bring in a new law to make sure ―life means life‖ if mr anderson‘s appeal was successful. 42 on 28 october 2002, the conservative opposition moved a resolution in the commons that the house ‗notes with concern the impact of the convention on the sentencing powers of the home secretary…and calls upon the government…to construct a lasting settlement that can bring the [hra] into conformity with the democratic will of the people…‘ 43 the resolution was defeated but it seems fairly clear that parliament had begun to seriously consider what it would do if confronted by a declaration on a topic of real public interest. 44 anderson was then handed down. mr blunkett promised to introduce new legislation which would establish a clear set of principles within which judges would fix minimum tariffs for murderers in the future, thus indicating that the home secretary would no longer have that power. 45 the government then introduced amendments to the criminal justice bill which transferred the power to fix tariffs in mandatory lifer cases from the home secretary to the sentencing judge. the legislation also established statutory guidelines which had to be taken into account by judges when they set the minimum terms that murderers had to serve before they became eligible for parole. 46 the guidelines were designed to place very substantial constraints on sentencing judges. that this is so can be seen from the explanatory notes to the criminal justice act 2003, which state that while ‗there may be a few very exceptional cases in which starting points [for minimum terms] will be increased or decreased very substantially, it is expected that the vast majority 42 david leppard and zoe thomas, ‗legal ruling may free 200 killers early‘ sunday times (london) 6 october 2002, 10. 43 hc deb 28 october 2002, vol 391, col 605 (dominic grieve). 44 there were a couple of references to dialogue during the commons debate on 28 october 2002 (hc deb 28 october 2002, vol 391, col 605-651) but no agreement as to its form. vera baird (labour, redcar) stated (at col 639): ‗there is no doubt that a healthy tripartite dialogue has been engendered between the courts, parliament and the executive by the human rights act. they have all worked together‘. however, dominic grieve (conservative, beaconsfield) stated (at col 612-613): ‗we have had an extraordinary paradigm shift in the way in which we run our affairs. some might argue that that is for the better. however, it involves a dialogue between the executive and the judiciary, from which parliament is effectively excluded. i have serious doubts about that process. as the dialogue continues, there is a danger that the process of justice, parliament and the executive will be brought into disrepute with the public‘. 45 hc deb 25 november 2002, vol 395, col 100-101w. 46 shute (n 36) 890. dialogue and declarations of incompatibility under section 4 of the human rights act 1998 54 of cases will tend to attract minimum terms that reflect [those prescribed by the act]‘. 47 after noting that the home secretary‘s role of examining tariff cases was ‗horrendous‘, mr blunkett explained the motivation behind the new legislation in the following terms: ―we want to reassert the role of parliament that historically existed when considering cases of murder, and to ensure that there is clarity and a response to public concern… ―today i am responding to the [anderson] judgment. although i accept that it takes the tariff out of the hands of the home secretary – as i said, no home secretary would be sorry to see that go – we are trying to achieve the same result.‖ 48 although it may have been traumatic to consider horrific murders, it seems unlikely that mr blunkett wanted to give up his tariff setting power. he knew that he could hand that power over to the judiciary but he fought mr anderson all the way to the house of lords to try and keep it. even after anderson went against him, he introduced legislation that had, as he saw it, the express purpose of retaining the status quo; that is, accountability to the public for sentences served by murderers. if mr blunkett had tried to retain his tariff setting power after anderson, he may very well have received the support of the conservative party 49 and a large section of the general public. as noted above, he wanted to retain parliament‘s accountability to the public for terms of imprisonment served by murderers. anderson did not, of course, change or strike down any law: the house of lords merely declared s 29 of the crime (sentences) act 1997 to be incompatible with the convention. why then did mr blunkett and the government not simply ignore anderson? there was probably a combination of reasons. firstly, the government may have considered that the new legislation would be effective; that is, it would force the judiciary to hand down the minimum sentences that the government wanted. secondly, it may not have wanted to provoke a political fight with those who believed that the home secretary had no place setting tariffs and/or that the judiciary should not be questioned on matters of human 47 explanatory notes to the criminal justice act 2003 (uk) 642 [835]. 48 hc deb 20 may 2003, vol 405, col 865-870. 49 after stafford was handed down, the shadow home secretary, oliver letwin, said, ‗we believe that the home secretary should retain the ability to overrule the parole board in cases involving murderers‘: dyer (n 40). the denning law journal 55 rights. 50 thirdly, and most likely, the government recognised that mr anderson would simply take his case to the ecthr where he would win. mr blunkett was advised by the home office that he had no chance of success in strasbourg because of the ecthr‘s decision in stafford. 51 sir philip sales and richard ekins disagree with young‘s conclusion that the hra establishes a dialogue between the judiciary and the legislature. 52 they say that the root of the problem with young‘s approach is that it fails to identify what is, in fact, a fundamental feature of the hra, namely, that it provides domestic remedies for rights drawn from international law. sales and ekins note that the ecthr does not perceive itself to be participating in any form of democratic dialogue with each european legislature, ‗nor could it sensibly do so‘. 53 the judgments of the ecthr are legally binding on all three branches of the united kingdom government so it is difficult, politically and legally, for the united kingdom parliament to legislate inconsistently with judgments of the ecthr. 54 sales and ekins conclude that the ‗strasbourg dimension‘ is a ‗fundamental aspect of the [hra]‘. 55 after anderson was handed down, merris amos wrote the following: ―the judgment of the house of lords was…a prime example of the courts, parliament and the executive engaging in a dialogue at the end 50 for example, just prior to anderson being handed down, the liberal democrat home affairs spokesman, simon hughes, was quoted as saying, ‗it would be wrong, even if understandable, for the home secretary to resist any judgment that went against him‘: see vikram dodd and clare dyer, ‗his life in whose hands? sarah payne killer ordered to serve 50 years: law lords to strip home secretary of right to set terms for murderers‘ the guardian (london) 25 november 2002, 1.3. 51 dodd and dyer, ibid. 52 philip sales and richard ekins (n 15) 236. 53 ibid 227-228. 54 jason varuhas ‗courts in the service of democracy: why courts should have a constitutional (but not supreme) role in westminster legal systems‘ [2009] nz law review 481, 515. judgments of the ecthr are of a declaratory nature: they state whether and to what extent there has been a violation of a human rights guarantee under the convention. pursuant to article 46 of the convention, the united kingdom is obliged to abide by any judgment in a case to which it is a party. it is an underlying norm of international law that a state will bring to an end any continuing or future violation of human rights of the kind mentioned in the judgment. there are examples of reluctance on the part of some states to follow the reasoning of the ecthr but in the long run all the states have accepted its jurisprudence: see georg ress, ‗the effect of decisions and judgments of the european court of human rights in the domestic legal order‘ (2005) 40 tex ilj 359. 55 sales and ekins (n 15) 229. dialogue and declarations of incompatibility under section 4 of the human rights act 1998 56 of which fundamental human rights emerged victorious as was intended by the architects of the [hra].‖ 56 if dialogue under the hra is supposed to be an exchange of ideas about human rights between parliament and the courts pursuant to which policy goals are revised, but not blocked, following judicial decisions, there is real reason to doubt the accuracy of amos‘ statement. it is clear that parliament was well aware of the case for the home secretary‘s role to be transferred to the judiciary; after all, as amos accepts, numerous challenges to this role had been brought domestically and in the ecthr. 57 mr anderson‘s appeal could not have raised any new ―ideas‖ about human rights; hence, there could hardly have been an exchange of ideas about them. the government fought to retain the home secretary‘s power; amos admits that mr blunkett ‗was anxious to retain his role‘. 58 once the house of lords handed down its decision, the government relinquished that power. was this an example of a policy goal being blocked or merely modified? the answer to this question depends upon what the policy goal actually was. if the goal was to ensure adequate punishment for murderers then an assessment of whether that goal has been achieved after anderson is beyond the reach of this article. however, it seems fairly clear that mr blunkett formed the view that, in order to ensure that murderers received adequate punishment, it was necessary for the executive to have direct control of their minimum terms of imprisonment. if that was the government‘s goal then it was undoubtedly not achieved. was that objective ‗blocked‘? the ‗strasbourg dimension‘ was patently an important factor in the government‘s decision-making process. although the government may have been anxious to retain its power, it knew that the ecthr would demand its surrender. the government‘s hand was clearly forced by the prospect of an inevitably adverse ecthr judgment. 59 anderson did not produce an exchange of ideas about human rights. depending on one‘s view of what the government‘s policy goal actually was, the process may very well have been closer to a monologue, judges doing the talking and legislatures the listening, 60 than the dialogue alleged by amos. 56 merris amos ‗r v secretary for the home department, ex p anderson – ending the home secretary‘s sentencing role‘ (2004) 67(1) mlr 108,116-117. 57 ibid 108. 58 ibid 117. 59 ibid: amos describes the outcome in anderson as ‗somewhat inevitable‘ (117), ‗a foregone conclusion‘ (117) and ‗not unexpected‘ (122). 60 frederick morton and rainer knopff, the charter revolution and the court party (broadview press 2000) 166. the denning law journal 57 6. r (d) v secretary of state for the home department [2002] ewhc 2805 (admin), [2003] 1 wlr 1315 this case concerned a claimant who had been sentenced to a discretionary term of life imprisonment. he was subsequently transferred to a mental hospital and made the subject of restrictions. the claimant served the minimum period of his detention and applied for discharge. the mental health review tribunal did not have the power to order a patient‘s discharge. under s 74(1) of the mental health act 1983, the mental health review tribunal was obliged to notify the secretary of state whether, in its opinion, the patient was entitled to be discharged. under s 74(1)(b) of the mental health act 1983, if the tribunal formed the opinion that a patient was entitled to be conditionally discharged, the tribunal could recommend that, in the event of the patient not being discharged, the patient should continue to be detained in hospital. it was the secretary of state's policy to refer to the parole board the cases of all restricted patients who remained in hospital following a tribunal recommendation under s 74(1)(b). the parole board had the power to direct the release of a patient; however there was no statutory right of access to a board hearing. mr justice stanley burnton made a declaration under s 4 of the hra that the absence of any power in s 74 of the mental health act 1983 to order the release of a prisoner: (a) who was sentenced to a discretionary life sentence; and (b) who was transferred to hospital and made subject to restrictions; and (c) who was subsequently the subject of a recommendation under s 74(1)(b) of the mental health act 1983; and (d) who remained in hospital, was incompatible with his right to have the lawfulness of his detention decided speedily by a court pursuant to article 5(4) of the convention. section 295 of the criminal justice act 2003 amended s 74 of the mental health act 1983 by inserting a new subsection (5a), which gave transferees such as the claimant in d a right of access to the parole board. as it was the policy of the home secretary, prior to d, to refer all such transferees to the parole board anyway, the amendment was ‗a change in form more than substance‘. 61 the uncontroversial nature of the amendment was reflected in the fact that it was introduced and agreed to in the house of lords without debate. 62 61 peter bartlett and ralph sandland, mental health law: policy and practice (3 rd ed, oup 2007) 417. 62 hl deb 14 october 2003, vol 653, col 918-920. dialogue and declarations of incompatibility under section 4 of the human rights act 1998 58 7. blood and tarbuck v secretary of state for health (high court of england and wales, sullivan j, 28 february 2003, unreported) the facts of this case were reported in the telegraph and daily mail newspapers on 28 february 2003. 63 according to those newspaper reports, mrs blood and mrs tarbuck used the sperm of their respective deceased husbands to conceive children. under s 28(6)(b) of the human fertilisation and embryology act 1990, a man could not be named as the father of a child if his sperm was used to fertilise an egg after his death. the result was that the blood and tarbuck children‘s birth certificates did not state their fathers‘ names. the legal proceedings appear to have been brought by mrs blood and mrs tarbuck on their own account and on behalf of their children. the parties to the litigation agreed that the court should make a declaration pursuant to s 4 of the hra that s. 28(6)(b) was incompatible with human rights. mr justice sullivan (as he then was) made a declaration in the terms sought. the human fertilisation and embryology (deceased fathers) act 2003 introduced new subsections into s 28 of the human fertilisation and embryology act 1990, which set out the circumstances in which certain deceased men could be registered as the father on a child‘s birth certificate. the human fertilisation and embryology (deceased fathers) act 2003 was uncontentious, which is reflected in the fact that the declaration in blood and tarbuck was made with the consent of the health secretary. in 2001, the labour government supported a private members bill that would have allowed a child conceived by in vitro fertilisation after the father‘s death to record his/her father‘s name on his/her birth certificate but it did not complete all its stages before the general election was called that year. 64 when the issue was raised again in parliament in 2003, the human fertilisation and embryology (deceased fathers) act was passed with the support of all sides of politics. 65 8. bellinger v bellinger [2003] ukhl 21, [2003] 2 ac 467 the petitioner was a transsexual female who had been correctly classified and registered at birth as male but had undergone gender reassignment surgery. in 1981 she went through a ceremony of marriage with a man who 63 the case is also noted in ministry of justice (n 22) 47. 64 hc deb 23 march 2001, vol. 365, col 642-650; hc deb 24 january 2002, vol 378, col 1090w. 65 hc deb 28 march 2003, vol. 402 col 602-612; hl deb 4 july 2003, vol 650, col 1148-1163. the denning law journal 59 supported her petition for a declaration that the marriage was valid at its inception and subsisting. the judge at first instance refused to grant the declaration on the ground that ‗male‘ and ‗female‘ in s 11(c) of the matrimonial causes act 1973 were to be determined by reference to biological criteria and that the petitioner was a male and not a woman for the purposes of marriage. on 10 april 2003, the judicial committee of the house of lords dismissed her appeal but made a declaration pursuant to s 4 of the hra that s 11(c) was incompatible with the petitioner's right to respect for her private life under article 8(1) of the convention and with her right to marry under article 12 of the convention. by the time that bellinger was decided, steps were well underway to allow transsexual people to be officially recognised in the gender with which they identified. in 1999, the home secretary set up the interdepartmental working group on transsexual people. the working group published a report in april 2000, which put forward a number of options but suggested that the government put the matters out to public consultation. the working group was reconvened in 2002 to examine the implications of granting full legal status to transsexual people in their acquired gender. 66 on 11 july 2002, the ecthr delivered judgments in favour of two transsexual people in goodwin v united kingdom 67 and i v united kingdom 68 , which effectively obliged the british government to recognise sex changes as legally valid. on 13 december 2002, the government announced that it would publish draft legislation that would give transsexual people legal recognition in their acquired gender. 69 on 27 november 2003, the gender recognition bill had its first reading in the house of lords. 70 it eventually passed both houses of parliament: 155 votes for to 57 against in the lords and 335 votes for to 26 against in the commons. 71 the gender recognition act 2004 enabled transsexual people to apply for legal recognition of their acquired gender. successful applicants would be issued with a gender recognition certificate and would have the right 66 catherine fairbairn, ‗the gender recognition bill (no. 56) 2003-04 (uk)‘ (research paper 04/15 house of commons library, united kingdom parliament, 2004), 10-11. 67 (2002) 35 ehrr 447. 68 (2003) 36 ehrr 53. 69 fairbairn (n 66) 11-15. 70 hl deb 27 november 2003 vol 655, col 24. 71 hl deb 10 february 2004 vol 656, col 1090-1092; hc deb 23 february 2004, vol 418, col 105-108. dialogue and declarations of incompatibility under section 4 of the human rights act 1998 60 to marry in their acquired gender and be given birth certificates that recognised the acquired gender. the gender recognition act 2004 was the outcome, not of the decision in bellinger, but of the working group‘s consultation with the transsexual community in the united kingdom and of the ecthr‘s judgments in goodwin and i. 72 indeed, in bellinger, counsel for the intervening lord chancellor submitted that a declaration would serve no useful purpose as the government had already announced its intention to bring forward primary legislation on the subject. 73 bellinger did not result in any real exchange of ideas about human rights between parliament and the courts because the issue was already being fully considered by the government by the time the decision was handed down. 9. r (m) v secretary of state for health [2003] ewhc 1094 (admin) the claimant was a 34 year old woman with a borderline personality disorder who was liable to detention under the mental health act 1983. she had made allegations of sexual abuse against her adoptive father, which were denied by him. the claimant‘s adoptive father was her ‗nearest relative‘ as that term was defined in s 26 of the mental health act 1983. the mental health act 1983 gave various powers and entitlements to her adoptive father as her ‗nearest relative‘. section 29 of the mental health act 1983 enabled the replacement of a patient‘s ‗nearest relative‘ but only in limited circumstances and not on the application of the patient. as there were no legal means available to the claimant to compel her adoptive father‘s replacement, she applied for a declaration that ss 26 and 29 of the mental health act 1983 were incompatible with her right to respect for her private life under article 8 of the convention. in his reasons for judgment, mr justice maurice kay (as he then was) noted that the health secretary admitted that ss 26 and 29 were incompatible with article 8. his honour stated that that was not surprising given that the ecthr had come to that conclusion in jt v united kingdom 74 . his honour noted that the judgment of the ecthr recorded a friendly settlement between jt and the british government pursuant to which the government undertook to amend the mental health act 1983 in order to provide a detainee with the power to make an application to court to have the ‗nearest relative‘ replaced 72 andrew sharpe ‗gender recognition in the uk: a great leap forward‘ (2009) 18(2) soc & legal stud 241, 242. 73 bellinger v bellinger [2003] 2 ac 467, 471, 481-482. 74 [2000] echr 133. the denning law journal 61 where the patient reasonably objected to a certain person acting in that capacity. following the friendly settlement in jt, no amending legislation had been enacted. the health secretary acknowledged the incompatibility but submitted that the government intended to enact amending legislation in the form of a comprehensive mental health bill with a view to a root and branch reform of the 1983 act. the government had, in fact, published a draft bill in the form of the mental health bill 2002. it was for this reason that the health secretary submitted that a declaration was unnecessary. as the incompatibility had been identified some time previously but its removal had not taken place, mr justice maurice kay rejected the government‘s submission and made the declaration sought. sections 23 – 26 of the mental health act 2007 amended ss 26 – 29 of the mental health act 1983. in particular, s 23 introduced a new right for a patient to apply for a court order displacing the ―nearest relative‖. m was similar to bellinger in that the process of legislative change was well underway by the time the case was decided. if there was an exchange of ideas about human rights, it happened long before m was handed down. 10. a v secretary of state for the home department [2004] ukhl 56, [2005] 2 ac 68 (‘belmarsh’) following the terrorist attacks in the united states of america on 11 september 2001, the british government concluded that there was a public emergency threatening the life of the nation within the meaning of article 15 of the convention. article 15 relevantly provides as follows: derogation in time of emergency 1. in time of war or other public emergency threatening the life of the nation any high contracting party may take measures derogating from its obligations under this convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. article 15 is not expressly incorporated by the hra, but s 14 of the hra makes provision for prospective derogations by the united kingdom to be designated in an order made by the secretary of state. accordingly, the government made the human rights act 1998 (designated derogation) order 2001, designating the united kingdom's proposed derogation, under article 15, from the right to personal liberty guaranteed by article 5(1) of the convention. it then placed the anti-terrorism, crime and security bill before parliament. dialogue and declarations of incompatibility under section 4 of the human rights act 1998 62 part 4 of the bill (ss 21 – 36) received a great deal of attention in parliament and was debated publicly at considerable length. 75 as ultimately enacted, s 21 enabled the home secretary to certify that he reasonably believed that a person‘s presence in the united kingdom was a risk to national security and that the person was a terrorist. under s 23, foreign nationals so certified by the home secretary could be detained if they could not be deported because of fears for their safety or other practical considerations. it was pointed out to the home secretary, mr blunkett, that one of the uk‘s leading human rights barristers, david pannick qc, had opined that the derogation from article 5 was unlawful because detention without trial was not strictly required by the exigencies of the situation. mr blunkett responded by saying that he was aware of mr pannick‘s comments but had received legal advice that they were incorrect. 76 despite the misgivings of some about part 4, 77 parliament passed the bill and the anti-terrorism, crime and security act came into force on 14 december 2001. due to the presence of a sunset clause, 78 parliament was required to revive and renew ss 21 – 23 of the act, which it duly did in 2003. 79 under the terms of the sunset clause, any renewal could only last a year so parliament was required to consider ss. 21 – 23 again in 2004. by that time, a review of the act had been conducted by a committee of privy counsellors, chaired by lord newton of braintree. the newton committee strongly recommended that the powers that allowed foreign nationals to be detained potentially indefinitely be replaced as a matter of urgency. 80 parliament noted the report 81 but decided to renew ss 21 – 23 again anyway. 82 in october 2004, the judicial committee of the house of lords heard an appeal by a and 8 other foreign nationals who had been detained under s 23 of the act. as most of the appellants were being held in belmarsh prison in south-east london, a v secretary of state for the home department became known as the belmarsh decision. 75 hc deb 12 december 2001, vol 376, col 911 (david blunkett). 76 hc deb 12 december 2001, vol 376, col 916. 77 see eg hc deb 19 november 2001, vol 375, col 95 (douglas hogg). 78 anti-terrorism, crime and security act 2001 (uk) s 29. 79 anti-terrorism, crime and security act 2001 (continuance in force of sections 21 to 23) order 2003 (uk); hc deb 3 march 2003, vol 400, col 584-608. 80 privy councillor review committee, anti-terrorism, crime and security act 2001 review: report, (hc december 2003, 100), 11. 81 hc deb 25 february 2004, vol 418, col 293-384. 82 anti-terrorism, crime and security act 2001 (continuance in force of sections 21 to 23) order 2004 (uk). see also hc deb 3 march 2004, vol 418, col 1027. the denning law journal 63 on 16 december 2004, the law lords handed down their judgment in which they held that since s 23 applied to non-nationals suspected of international terrorism but not to nationals who presented the same threat; permitted non-national suspects to leave the united kingdom; did not address the threat from nationals; and was capable of applying to individuals who did not pose that threat, it did not rationally address the threat to security and was not strictly required by the exigencies of the situation within the meaning of article 15. their lordships held that since the purpose of s 23 was to protect the united kingdom from the risk of a terrorist attack, which could come from nationals or non-nationals, the fact that only non-national suspects were detained under s 23 meant that a declaration should be made that that section was incompatible with the right to liberty (article 5 of the convention) and the prohibition against discrimination (article 14 of the convention) in so far as it was disproportionate and permitted detention of suspected international terrorists in a way that discriminated on the ground of nationality or immigration status. the next day, the front page of the guardian newspaper reported that the ‗scathing‘ judgment had ‗left anti-terror laws in tatters‘. 83 the foreign secretary, jack straw, was reported as saying that the law lords were ‗simply wrong‘ to rule that terror suspects were being held arbitrarily without charge. 84 the new home secretary, charles clarke, stated that he would not revoke the s 21 certificates or release the detainees but did say that he would study the judgment carefully to see whether it was possible to modify the act to address the concerns raised by the law lords. 85 the following day, the front page of the independent newspaper reported that the government‘s refusal to withdraw its anti-terror laws had left britain on the brink of a constitutional crisis. 86 on 21 december 2004, the guardian newspaper reported that mr clarke was being attacked for failing to announce what the government would do to respond to the judgment. the newspaper reported conservative mp, tony baldry, as saying that the law lords ‗didn‘t make an ethical, moral or philosophical judgment…they made a legal judgment‘. 87 83 clare dyer, michael white and alan travis, ‗‗judges‘ verdict on terror laws provokes constitutional crisis‘ the guardian (london) 17 december 2004. 84 richard edwards, ‗law lords ‗wrong‘ over detentions, says straw‘ evening standard (london) 17 december 2004. 85 oonagh blackman ‗war on the law lords: clarke defies decision on belmarsh inmates‘ the daily mirror (london) 17 december 2004. 86 robert verkaik and colin brown, ‗belmarsh: a new affront to justice‘ the independent (london) 18 december 2004. 87 david hencke and clare dyer, ‗clarke criticised over terror suspects ruling‘ the guardian (london) 21 december 2004. dialogue and declarations of incompatibility under section 4 of the human rights act 1998 64 on 26 january 2005, mr clarke told the house of commons that, although the government believed that the part 4 powers were justified, he accepted the declaration made by the law lords. he indicated that the government had decided to replace the part 4 powers with a new system of control orders, which would limit the movement and communications of suspected terrorists. 88 on 3 february 2005, the lord chancellor, lord falconer of thoroton, gave a lecture in which he told the audience that he not only accepted the belmarsh judgment but that the government had got the balance wrong. 89 on 22 february 2005, mr clarke introduced the prevention of terrorism bill into the house of commons. as he had previously indicated, the bill introduced a scheme of control orders applicable to all suspected terrorists irrespective of whether they were british or foreign nationals. in his statement to parliament, mr clarke made the following comments: ―the law lords' judgment on 16 december found that the part 4 powers in the 2001 act were disproportionate and discriminatory in that they applied only to foreign nationals, and we had apparently managed to contain the threat from british nationals without detention…i accept that judgment, and therefore believe that it is important to address those concerns. we should not simply renew the current legislation, which the law lords so overwhelmingly regard as flawed. we should replace it—with strong measures that are fully compatible with the european convention on human rights, and applicable to both british and foreign nationals.‖ 90 on 11 march 2005, parliament enacted the prevention of terrorism act, which repealed ss 21 – 23 of the anti-terrorism, crime and security act 2001 and replaced detention with control orders. on 7 july 2005, 52 civilians were killed in a series of terrorist bombings in london. on 26 july 2005, the prime minister, tony blair, gave a press conference in which he was reminded about lord hoffman‘s comments in the belmarsh judgment (‗the real threat to the life of the nation…comes not from terrorism but from laws such as these‘) 91 and asked whether there was ‗any way you can ensure the judges take account of what we think is now public 88 hc deb 26 january 2005, vol 430, col 305-309. 89 adrian butler and deborah james, ‗―we got the balance wrong‖; falconer admits anti-terror legislation broke the law‘ daily post (liverpool) 4 february 2005. 90 hc deb 22 february 2005, vol 431, col 152. 91 a v secretary of state for the home department [2005] 2 ac 68, 132. the denning law journal 65 and parliamentary opinion?‘ the prime minister responded in the following terms: ―i hope that recent events have created a situation where people can understand that it is important that we do protect ourselves and that in a sense if we can take measures to protect ourselves, it then becomes easier in a sense to protect our own way of life and our democracy and i doubt those words that you were quoting from one of those judgments would be uttered now.‖ 92 the prime minister concluded his comments by stating that ‗one way of making sure we keep together is to make sure that the laws that i think the country would regard as the minimum necessary are actually passed and are then upheld‘. 93 the prime minister‘s answers were interpreted by some as indicating his disagreement with the belmarsh decision. 94 as mr blair‘s autobiography reveals, that interpretation was undoubtedly correct: ―less happy was the episode over the new anti-terror laws which we were seeking to pass following the house of lords ruling in december 2004 that our existing power to detain suspects was unlawful under the convention, which was now incorporated into uk law. here, there was simply a fundamental disagreement between myself and the judiciary and media; or at least a large part of it, about the threat we faced. ―although these decisions are supposed to be a strict matter of law, inevitably in the human rights field there is a lot of subjective judgement around the politics. i doubt such a ruling would have been reached in september 2001 or july 2005 – ie in the wake of terrorist attacks in the us and london – but as time passes, the sense of urgency goes with it. and it was true: we were asking for draconian powers, unacceptable in principle except in the most rare circumstances.‖ 95 92 ‗pm‘s press conference 26 july 2005‘ (press release, 26 july 2005) http://webarchive.nationalarchives.gov.uk/20061004051823/http://number10.gov.uk/p age7999. 93 ibid. 94 benedict brogan, ‗blair: judges let us down‘ daily mail (london) 27 july 2005; william cash, ‗terrorism and the rule of law‘ the times (london) 2 august 2005. 95 tony blair, a journey: my political life (alfred a knopf 2010) 575. dialogue and declarations of incompatibility under section 4 of the human rights act 1998 66 if the prime minister disagreed with belmarsh, why didn‘t his government simply refuse to repeal ss 21 – 23 of the anti-terrorism, crime and security act 2001? mr blair offered the following explanation in his autobiography: ―once the house of lords made the ruling, we had to amend the law.‖ 96 why was it that the blair government had to amend the law? the diary of former labour mp, chris mullin, reveals some of the government‘s thinking on the subject. mr mullin attended a meeting at the prime minister‘s office two days before the belmarsh decision was handed down. his diary records the meeting in the following terms: ―to number 10 for a meeting about the detentions at belmarsh…‖ ―the attorney general outlines the options. his starting point is that we should obey the forthcoming lords‘ judgment, which is expected to go against the government. alternatively, we could amend the law – ‗the difficulty is we don‘t know what to put in its place.‘‖ ―‗it will be a big thing, if we don‘t accept the judgment,‘ the attorney general said.‖ 97 what mr mullin‘s diary note exposes is that, not only did the government know that it theoretically had the option of rejecting the law lords‘ judgment, it also knew that it would be a ‗big thing‘ if it took that option. how ‗big‘ of a ‗thing‘ would it have been? lord lloyd of berwick painted a vivid picture in his 2005 denning lecture: ―if the government had rejected the decision in a‘s case, as it could have done, and renewed part 4 of the 2001 act when it expired, there would have been a major constitutional crisis. i shall never forget the sense of relief when…mr clarke as home secretary announced that the government would accept the declaration of incompatibility…i would like to think that mr clarke‘s quiet acceptance of the decision in a‘s case marked the start of a new chapter in the relationship between the judges and the executive. instead of crying foul, as the 96 ibid. 97 ruth winstone (ed) a view from the foothills: the diaries of chris mullin (profile books 2009) 731-732. the denning law journal 67 government might well have done when mr blunkett was home secretary, the executive has recognised that judges also have a job to do, especially in the realm of human rights. if this is so, then a‘s case was a decision of huge importance, not only in what it decided, but in the manner of the government‘s acceptance of that decision.‖ 98 in light of the media reports that followed the belmarsh decision, lord lloyd was almost certainly right to surmise that any rejection of the judgment would have resulted in a major constitutional crisis. it should not be forgotten that 2005 was an election year. one can only imagine the hysteria that would have occurred if the government had been seen to ‗go against‘ the judgment of the highest court in the land. the opposition would have likely had a field day with the issue. one of the law lords who delivered the belmarsh judgment, baroness hale of richmond, argued in her 2007 ryan lecture that, in the united kingdom, all three organs of government were engaged in a constitutional dialogue. 99 lady hale explained that part of the way that democratic dialogue was supposed to work was that, if legislation was incompatible with fundamental rights, the courts ‗decide how far they can go towards putting it right without trespassing on parliamentary sovereignty‘. 100 she explained that parliamentary sovereignty was preserved by the issuing of a declaration because it did not ‗affect the validity of anything done under the statue and parliament still has a choice whether or not to do anything about it‘. 101 lady hale cited the belmarsh decision as evidence of the dialogue. 102 with the greatest of respect to lady hale, it seems difficult to classify the outcome of the belmarsh decision as involving any kind of dialogue. parliament was well aware of the rights arguments that would be deployed against the anti-terrorism, crime and security act 2001 in the courts. despite this, it chose to enact and then renew ss 21 – 23 on a number of occasions, in the face of strong criticism. after the belmarsh decision was handed down, the government clearly did not want to repeal ss 21 – 23 but, if it did not do so, it would have provoked a constitutional crisis. just how little the 98 lord lloyd ‗the judges and the executive – have the goalposts been moved?‘ (2006) 18 denning lj 79, 93. 99 baroness hale, ‗human rights in the age of terrorism: the democratic dialogue in action‘ (2008) 29 geo j. int'l l 383, 386. 100 ibid 405. 101 ibid 388. 102 ibid 391-393. dialogue and declarations of incompatibility under section 4 of the human rights act 1998 68 government thought of law lords‘ decision is demonstrated by the fact that it later took the unusual step of challenging its correctness in the ecthr. 103 despite the protestations of lord falconer, the better view is that the government amended the law, not because it thought that it was wrong, but because the political pressure to do anything else was just too great. the reality is that parliament had no choice: it had to amend the law just as mr blair said. the outcome was not arrived at by an exchange of views: it was dictated by the law lords. prior to the belmarsh decision being handed down, the attorney general knew that the government could amend the law but didn‘t ‗know what to put in its place‘. the comment suggests that the government needed to know what the courts thought the law should be before it could act. the law lords duly did tell the government what they thought the law should be. the leading judgment in belmarsh was delivered by lord bingham who noted that when one of the appellants had been released on bail it was on stringent conditions that limited his freedom of movement and association. 104 lord bingham stated: ―the appellants suggested that conditions of this kind, strictly enforced, would effectively inhibit terrorist activity. it is hard to see why this would not be so.‖ 105 taking the hint and now knowing what to put in place of detention orders, the government introduced the control order scheme under the prevention of terrorism act 2005. some might argue that belmarsh did not involve the rejection of a key legislative policy goal: the legislative objective was to keep the public safe from foreigners suspected of terrorism and the enactment of the prevention of terrorism act 2005 ensured that that objective was achieved in a way that was properly respectful of human rights. in response, two things can be said. firstly, it is unlikely that belmarsh did not result in the blocking of a key policy goal. as mr blair says in his autobiography, he conceived of offering foreigners suspected of terrorism a choice: ‗leave the country, or stay in custody‘. 106 the belmarsh decision totally obstructed this objective. secondly, even if a key objective was not frustrated, the legislature‘s policy was 103 see a v united kingdom (2009) 49 ehrr 29; sangeeta shah, ‗from westminster to strasbourg: a and others v united kingdom‘ (2009) 9 co hrlr 473. 104 a v secretary of state for the home department [2005] 2 ac 68, 106-107. 105 ibid 107. 106 blair (n 95) 575. the denning law journal 69 distorted, and arguably not in a constructive way. 107 as baroness hale herself noted, seven people who were subject to control orders had, by the time of her lecture, gone missing so ‗its effectiveness as a preventive measure is questionable‘. 108 lord lloyd was prescient to say that belmarsh was a decision of huge importance, not only in what it decided, but in the manner of the government‘s acceptance of that decision. if a government that believed so strongly in legislation on such an important subject matter was not willing to defend it in the face of a declaration, perhaps no government ever would? the outcome of belmarsh was strong evidence of the proposition that, in the future, it would be, as lord lloyd predicted, ‗for the judges, and ultimately for strasbourg, to say what the convention means‘. 109 11. r (wilkinson) v inland revenue commissioners [2005] ukhl 30, [2006] 1 all er 529 the taxpayer was a widower whose wife died on 23 june 1999. at that time, s 262 of the income and corporation taxes act 1988 provided for a bereavement allowance payable only to widows. by s 34 of the finance act 1999, s 262 ceased to have effect in relation to deaths occurring after 6 april 2000. by letter of 11 december 2000, the inland revenue commissioners refused the taxpayer's claim to a payment on the ground that there was no basis in united kingdom law for allowing widowers to claim the widow's bereavement allowance. the judge refused the taxpayer's claim for judicial review of the commissioners' decision, but granted a declaration that s 262 was incompatible with article 14 of the convention (‗the enjoyment of the rights and freedoms set forth in this convention shall be secured without discrimination on any ground such as sex…‘) when read with article 1 of the first protocol to the convention (‗every natural or legal person is entitled to the peaceful enjoyment of his possessions‘). the taxpayer took his appeal to the house of lords, arguing that it was possible to read s 262 as including widowers. the house of lords dismissed his appeal. wilkinson did not result in dialogue. the incompatibility was removed by s 34 of the finance act 1999, which was enacted well before the taxpayer filed his claim for judicial review. 107 christopher manfredi and james kelly, ‗six degrees of dialogue: a response to hogg and bushell‘ (1999) 37 ohlj 513, 522. 108 baroness hale (n 99) 396. 109 lord lloyd (n 98) 93. dialogue and declarations of incompatibility under section 4 of the human rights act 1998 70 12. r (morris) v westminster city council (no 3) [2005] ewca civ 1184, [2006] 1 wlr 505: r (gabaj) v first secretary of state (administrative court, 28 march 2006, unreported) the facts of morris were that the claimant and her daughter came to the united kingdom from mauritius and were given leave to enter as visitors. when their leave to remain expired, the claimant applied for a british passport on the basis that she was a british citizen by descent. that status was subsequently recognised and she obtained a british passport, while her daughter was not thought eligible for british citizenship and remained a citizen of mauritius alone. the claimant subsequently applied to the defendant council for accommodation under the housing act 1996. that application was refused on the basis that the claimant did not have a ‗priority need for accommodation‘. the council, relying on s 185(4) of the housing act 1996, subsequently confirmed its decision. under s 189 of the housing act 1996, a person with dependent children had a ‗priority need for accommodation‘. however, s 185(4) prevented an otherwise eligible applicant from relying on a person subject to immigration control to bring him/her within the class of persons with dependent children. in other words, if the claimant‘s daughter had been british, the claimant would have had a ‗priority need for accommodation‘. as the claimant‘s daughter was not british, the claimant did not have a ‗priority need for accommodation‘. on 14 october 2005, the court of appeal declared that s 185(4) was incompatible with the right under article 14 of the convention to enjoy without discrimination the right under article 8 of the convention to respect for home and family life to the extent that it required a dependent child of a british citizen, if both were habitually resident in the united kingdom, to be disregarded when determining whether the british citizen had a priority need for accommodation, when that child was subject to immigration control. the government‘s response to morris took some time to develop. on 3 march 2006, the office of the deputy prime minister informed parliament‘s joint committee on human rights (‗jchr‘) that the government had decided not to appeal the decision. 110 on 28 march 2006, the administrative court made a declaration by consent in gabaj 111 that s 185(4) was incompatible with the convention, albeit in slightly different terms to the declaration in 110 joint committee on human rights, uk parliament, twenty third report (2006) app 4 (letter from alan edwards to the jchr dated 2 march 2006). 111 ibid (letter from alan edwards to the jchr dated 20 april 2006). see also ministry of justice (n 22) 40. the denning law journal 71 morris. on 27 june 2006, the minister for housing and planning, yvette cooper, advised the jchr that the government intended to remedy the incompatibility as quickly as possible. 112 schedule 15 of the housing and regeneration act 2008 introduced amendments to the housing act 1996 that meant that s 185(4) would no longer apply to british citizens. 113 accordingly, a british citizen with a dependent child who applied for housing, like mrs morris, would have a ‗priority need for accommodation‘ even if that child was not a british citizen and subject to immigration control. the housing authority to which the application was made would discharge its duty to the applicant, not by offering long-term social housing, but by arranging an offer of accommodation in the private rental sector. the policy concerns of the government and the purpose of schedule 15 were explained by the undersecretary of state for communities and local government, iain wright, when the commons was considering the amendments: ―this is a complex area of law, but in summary, the issue at stake is what help british citizens whose household includes members with different immigration status should get if they become homeless. the amendments will ensure that in future, households in those circumstances will be provided with suitable housing, while continuing to ensure that people from abroad with no claim to uk public resources cannot confer entitlement to long-term social housing.‖ 114 the amendments were passed by parliament without dissent. 115 although morris posed ‗particularly difficult‘ policy problems, 116 there are reasons to believe that the parliament was comfortable with the ultimate outcome as expressed in the amendments to the housing act 1996. firstly, the government naturally accepted that british citizens had to be provided with some form of housing assistance if they became homeless through no fault of 112 ibid (letter from yvette cooper to the jchr dated 27 june 2006). 113 section 185(4) was also amended so that it would not apply to european economic area nationals and commonwealth citizens with a right of abode in the united kingdom. 114 hc deb (grand committee), 21 july 2008, vol 479, col 610. 115 the amendments were introduced in committee on 23 june 2008 (hl deb (grand committee) 23 june 2008, vol 702, col gc495-560); they were agreed to in the house of lords on the third reading of the housing and regeneration bill on 17 july 2008 (hl deb 17 july 2002, vol 637, col 132288) and agreed to in the house of commons on 21 july 2008 (hc deb 21 july 2008, vol 479, col 575-621). 116 hl deb 9 july 2008, vol 703, col 821 (baroness andrews). dialogue and declarations of incompatibility under section 4 of the human rights act 1998 72 their own. 117 secondly, as noted above, the amendments were agreed to without dissent. thirdly, it seems unlikely that the amendments would have resulted in significant additional expenditure for the government. only a small number of people were affected by the operation of s 185(4). 118 the amendments did not result in migrants obtaining access to scarce and valuable social housing. accordingly, there is good cause to think that morris did provoke an exchange of ideas about rights pursuant to which policy goals were revised but not blocked. 13. r (clift) v secretary of state for the home department [2006] ukhl 54, [2007] 1 ac 484 the claimants were foreign citizens who had been sentenced to lengthy terms of imprisonment and made subject to deportation orders. by virtue of ss 46(1) and 50(2) of the criminal justice act 1991, the parole board had no power to recommend the early release on licence of long-term prisoners subject to deportation orders and the decision was at the discretion of the home secretary. the claimants each made representations for early release but the home secretary decided not to order their release. the claimants sought judicial review of the home secretary's decisions as being contrary to articles 5 and 14 of the convention 119 in that they were treated differently from long-term prisoners who were not subject to deportation because those prisoners were entitled to the benefit of a referral to the parole board. the judge at first instance allowed the claims but was overturned by the court of appeal. on appeal, the judicial committee of the house of lords held that differential treatment afforded to prisoners liable to deportation by having their release dates determined by the secretary of state could not be 117 hl deb (grand committee) 23 june 2008, vol 702, col gc524 (baroness andrews). 118 hl deb (n 116) col 820 (baroness andrews). 119 convention (n 7). article 5 relevantly provides as follows: 1. everyone has the right to liberty and security of person. no one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court;... 4. everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. article 14 relevantly provides as follows: the enjoyment of the rights and freedoms set forth in this convention shall be secured without discrimination on any ground such as...national or social origin. the denning law journal 73 objectively justified, given the parole board's ability to make such determinations. accordingly, a declaration would be made that ss 46(1) and 50(2) were incompatible with article 14, read with article 5, to the extent that they prevented prisoners liable for removal having their cases reviewed by the parole board in the same manner as other long-term prisoners. by the time the matter was heard by the house of lords, ss 46(1) and 50(2) had been repealed and replaced by the criminal justice act 2003. but they continued to apply to offences committed before 4 april 2005 pursuant to the criminal justice act 2003 (commencement no 8 and transitional and saving provisions) order 2005 so they continued to apply to the claimants. section 27 of the criminal justice and immigration act 2008 amended the criminal justice act 1991 to remove the incompatibility in transitional cases. section 27 seems to have been enacted without difficulty or controversy. although the criminal justice and immigration act 2008 had a long passage through parliament, the wording of s 27 did not change from the time that it was first presented. 120 the public bill committee appointed to consider the criminal justice and immigration bill agreed, without dissent, that it should form part of the legislation. 121 the jchr concurred, saying that it was a ‗simple‘ remedy to a ‗straightforward legal problem‘. 122 14. smith v scott [2007] csih 9, 2007 sc 345 this case concerned the incapacity of convicted prisoners to vote pursuant to s 3 of the representation of the people act 1983, which relevantly provides as follows: ―a convicted person during the time that he is detained in a penal institution in pursuance of his sentence…is legally incapable of voting at any parliamentary or local government election.‖ on 6 october 2005, the ecthr held in hirst v united kingdom (no 2) 123 that s 3 violated article 3 of the first protocol to the convention. article 3 provides as follows: ―the high contracting parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will 120 criminal justice and immigration bill 2007 (uk) cl 15. 121 pbc deb 21 november 2007, vol 467, col 355-363. 122 joint committee on human rights, thirty first report (2008) [107]. 123 (2006) 42 ehrr 41. dialogue and declarations of incompatibility under section 4 of the human rights act 1998 74 ensure the free expression of the opinion of the people in the choice of the legislature.‖ for present purposes it is important to note that the ecthr has interpreted article 3 as conferring individual suffrage rights and has held that the undertaking given by the high contracting parties (which obviously includes the united kingdom) obliges them to take positive steps to guarantee those rights. 124 on 2 february 2006, the british government indicated that, as a result of the hirst decision, it would undertake a public consultation in relation to prisoners' voting rights. 125 on 14 february 2006, the registration appeal court (in effect, the scottish court of session) first began to hear mr smith‘s appeal. mr smith was a convicted drug dealer whose application to be included in the register of electors had been refused pursuant to s 3 of the representation of the people act 1983. the time allocated for the appeal was insufficient and it was adjourned to a later date. on 14 december 2006, the department of constitutional affairs published a consultation document, which set out the principles of prisoner enfranchisement and the options available to the united kingdom. 126 on 11 january 2007, the registration appeal court reconvened for the final time on mr smith‘s appeal. during the course of the appeal, counsel for the secretary of state for scotland informed the court that the secretary of state fully accepted the hirst decision. 127 the secretary of state submitted that a declaration was unnecessary as the government was already aware that s 3 was not convention-compliant and action was being taken to remedy that situation. 128 on 24 january 2007, the court delivered its judgment in which it noted that, although the government had published its consultation document, the issue of prisoners‘ voting rights had not been resolved despite having been in 124 sophie briant, ‗dialogue, diplomacy and defiance: prisoners‘ voting rights at home and in strasbourg‘ [2011] ehrlr 243, 244 citing mathieu-mohin and clerfayt v belgium (series a no. 113), judgment of 2 march 1987, 22-23. 125 smith v scott 2007 sc 345, 360-361. 126 steve foster, ‗the long and winding road: the battle for the prisoner‘s right to vote‘ (2011) 16(1) cov lj 19, 21 citing department of constitutional affairs (uk), ‗voting rights of convicted prisoners detained within the united kingdom – the uk government‘s response to the grand chamber of the european court of human rights‘ judgment in hirst v united kingdom‘ cp29/06 (2006). 127 smith v scott 2007 sc 345, 349. 128 ibid 364. the denning law journal 75 the public arena for a long time. 129 in those circumstances and in light of the fact that the scottish parliamentary election would be held in may 2007, the court decided that it would make a declaration that s 3 was incompatible with article 3 of the first protocol to the convention. 130 the declaration of the scottish court produced no response in the british parliament. on 27 march 2007, the lord chancellor, lord falconer, informed the jchr that the government did not believe that the declaration required urgent action because the judgment did not establish any new principle beyond that established in hirst. the lord chancellor also noted that the government‘s consultation process was still underway. 131 thereafter, it is fair to say that the labour government relied upon the consultation process to delay law reform on the topic for the remainder of its time in office. 132 the new conservative/liberal democrat government, elected in may 2010, had no real desire to amend the law either. the politically popular view was enunciated by prime minister david cameron in november 2010: ‗frankly, when people commit a crime and go to prison, they should lose their rights, including the right to vote‘. 133 eventually, the issue came before the ecthr again in scoppola v italy (no 3) 134 , a case concerning prisoner voting rights in which the united kingdom was given leave to intervene. the united kingdom submitted that the findings in hirst were wrong and that the ecthr should revisit its decision. 135 on 22 may 2012, the ecthr rejected that submission and reaffirmed the principles set down in hirst. 136 the result of scoppola was that the united kingdom government was required to provide the ecthr with proposals that satisfied article 3 of the first protocol within 6 months of the judgment. 137 on 22 november 2012, the british government published the voting eligibility (prisoners) draft bill and announced it would be considered by a joint committee of both houses of parliament. the draft bill set out 3 different potential approaches for the committee to consider. the first would enable 129 ibid 364-365. 130 ibid 365. 131 joint committee on human rights, sixteenth report (2007), app 13. 132 colin murray, ‗playing for time: prisoner disenfranchisement under the echr after hirst v united kingdom‘ (2011) 22 klj 309, 310. 133 ibid citing hc deb 3 november 2010, vol 517, col 921. 134 (2013) 56 ehrr 19. 135 ibid 677. 136 ibid 681. 137 steve foster, ‗prisoners‘ voting rights and the echr: still hazy after all these years‘ (2012) 17(1) cov lj 75, 80. dialogue and declarations of incompatibility under section 4 of the human rights act 1998 76 prisoners sentenced to less than 4 years to vote. the second would limit the vote to prisoners sentenced to 6 months or less. the third approach would continue the ban on prisoner voting. 138 as at today‘s date, the joint committee has not been appointed, the issue has not been resolved and there is still much drama to be played out. prime minister cameron has stated very clearly that prisoners will not get the vote under his government. 139 the labour party has proclaimed its opposition to prisoner enfranchisement too. 140 the current home secretary, theresa may, has indicated that the next conservative government will scrap the hra and may leave the convention altogether. 141 against this backdrop, it has been reported 142 that the uk supreme court will hear an appeal in june 2013 by a convicted murderer, george mcgeoch, who has not been allowed to add his name to the electoral register. 143 whatever the eventual outcome, it seems fairly clear that the declaration in smith did not result in an exchange of views between parliament and the judiciary about the voting rights of prisoners. due to the decision in hirst, consideration of that issue was well underway by the time the judgment in smith was handed down. furthermore, there was no parliamentary response to the declaration. it was not a case of parliament considering and then rejecting the registration appeal court‘s opinion: it was more or less ignored. parliament‘s failure to respond to the declaration in smith raises some interesting implications for dialogue theory. it is evidence that a declaration might not have the practical effect of compelling parliament to comply with the views of the judiciary. how could parliament ignore the declaration in 138 hc deb 22 november 2012, vol 553, col 746 (chris grayling). 139 graeme wilson, ‗prisoners won‘t get the vote, says pm‘ the sun (london) 25 october 2012. 140 in response to the announcement of 22 november 2012, the shadow justice minister, sadiq khan, revealed that the labour government‘s assurances to the registration appeal court in smith v scott may not have been entirely accurate: ‗the labour government disagreed with the court‘s decision [in hirst]. it is not, and never has been, labour‘s position to give prisoners the vote. that is why we appealed the decision and continued to challenge it until we lost office‘: see hc deb (n 138) col 747. 141 theresa may, ‗victory 2015‘ (speech delivered to conservative home conference, london, 9 march 2013). 142 owen bowcott, ‗britain ‗painted itself into a corner‘ on prisoner votes: human rights chief says uk is setting bad example‘ the guardian (london) 16 july 2012; owen bowcott, ‗judge defends court role over terror suspects: ministers and supreme court chief at odds over use of human rights laws‘ the guardian (london) 5 march 2013. 143 mcgeoch v lord president of the council [2011] csih 67, 2012 sc 410. the denning law journal 77 smith yet be forced to comply with the ruling in belmarsh? the answer probably lies in the different circumstances surrounding the two cases: a) previous ecthr decision. by the time smith was handed down, parliament was already dealing with the binding decision of the ecthr in hirst. smith was merely a non-binding (in the strict legal sense) affirmation of hirst. by contrast, belmarsh was the sole judicial authority as to whether the government‘s detention scheme was compatible with human rights. b) public support for the legislation in question. the enfranchisement of prisoners had almost no popular support. by contrast, the detention system introduced by the anti-terrorism, crime and security act 2001 was controversial and many people supported its abolition. c) public awareness of the declaration. the belmarsh decision was highly-publicised in the media. by contrast, smith was a relatively obscure decision of a scottish court. d) public respect for the declaration. belmarsh was a ruling of the highest court in the united kingdom. by contrast, the registration appeal court in smith effectively followed a previous ruling of an unpopular european court. taken together, these factors probably made it relatively easier, from a political standpoint, for the government to effectively disregard smith as compared to belmarsh. as noted above, at present it is unclear as to whether parliament will eventually give some prisoners the right to vote. a decision by the supreme court in mr mcgeoch‘s favour may force parliament‘s hand, much as the declaration in belmarsh did. 144 the issue of prisoner enfranchisement may end up playing a decisive role, not only in determining whether parliament can have the final say under the hra, but in the very future of that act. 144 if the decision by the court of appeal in r (chester) v secretary of state for justice [2010] ewca civ 1439, [2011] 1 wlr 1436 is any indicator, it is unlikely that the supreme court will press the government. in chester, the appellant sought the same declaration as was granted in smith. in dismissing the appeal, the court of appeal noted that the government‘s choices were ‗delicate‘, ‗difficult‘ and ‗a political responsibility‘: see chester [2011] 1 wlr 1436, 1449. dialogue and declarations of incompatibility under section 4 of the human rights act 1998 78 15. r (baiai) v secretary of state for the home department (nos 1 and 2) [2008] ukhl 53, [2009] 1 ac 287 in the united kingdom, non-european economic area nationals are subject to immigration control and require leave to enter or remain in the country. section 19 of the asylum and immigration (treatment of claimants, etc) act 2004, together with the immigration (procedure for marriage) regulations 2005, introduced a regime under which non-eea nationals had to apply to the home secretary for a certificate of approval to marry if they wished to enter into a marriage otherwise than in accordance with the rites of the church of england. the home secretary‘s policy was that, in order to obtain a certificate, an applicant had to have valid leave to enter or remain in the united kingdom for more than six months (and more than three months of that leave had to be unexpired at the time of the application), or exceptionally compelling compassionate grounds. the claimants were refused certificates. they sought judicial review and a declaration of incompatibility on the grounds that the s 19 regime and the home secretary‘s policy were incompatible with the right to marry protected by article 12 of the convention. the home secretary maintained that the regime was necessary in order to avoid the abuse of immigration rights by marriages of convenience. the judicial committee of the house of lords found that the conditions set out in the home secretary‘s policy, though relevant to immigration status, had no relevance to the genuineness of a proposed marriage, which was the only relevant criterion for determining whether permission should be given. their lordships held that, since the effect of the policy, subject to the discretionary compassionate exception, was to impose a blanket prohibition on exercise of the right to marry by all those within the specified categories irrespective of whether the parties' proposed marriages were ones of convenience, the scheme represented a disproportionate interference with the right to marry. the scheme violated article 12 to that extent and a declaration was made accordingly. the certificate of approval scheme was abolished by the asylum and immigration (treatment of claimants, etc) act 2004 (remedial) order 2011. the order was approved by the house of commons without debate. 145 in the house of lords, the minister of state for security and counter terrorism, baroness neville-jones, moved that the order be approved, stating: 145 hc deb 30 march 2011, vol 526, col 485. the denning law journal 79 ―the government want to bring this order into force subject to your lordships' agreement. we are doing so for two reasons. first, the domestic courts have declared that the scheme is incompatible with the european convention on human rights. abolishing the scheme will remove this incompatibility. secondly, changes made following rulings from the domestic courts have weakened the scheme and the government do not consider it any longer to be an effective method of dealing with sham marriages.‖ 146 lord avebury indicated that the liberal democrat party welcomed the order. 147 lord rosser signalled that the labour party also supported the order ‗in light of the court judgments‘ but stated that he had a number of concerns about whether the government could continue to restrict sham marriages. 148 in response to lord rosser, baroness neville-jones declared that: ―although there is some anxiety in the house, which i share, about our ability to control the situation, we will be monitoring it carefully and making our best efforts to ensure that [the sham marriage] route is not used. i hope that the house will feel it necessary to abolish the scheme and, on the basis of the government putting in place the best methods that we can to control this, approve the order.‖ 149 the house of lords duly approved the order. as all sides of british politics appeared to accept that the abolition of the certificate of approval scheme was necessary, baiai may very well have produced a real exchange of views about human rights between the judiciary and parliament. 16. r (wright) v secretary of state for health [2009] ukhl 3, [2009] 1 ac 739 the claimants were care workers who were referred to the health secretary under s 82(1) of the care standards act 2000, which made provision for keeping a list of people considered unsuitable to work with vulnerable adults. pending the determination of each reference, the health secretary provisionally included the claimants' names in the list pursuant to s 82(4)(b), which made no provision for first according them a hearing. 146 hl deb 4 april 2011, vol 726, col 1603. 147 ibid col 1605. 148 ibid col 1607-1608. 149 ibid col 1612. dialogue and declarations of incompatibility under section 4 of the human rights act 1998 80 the judicial committee of the house of lords held that, given the possibility that provisional listing under s 82(4)(b) could result in irreparable damage to a person's employment or prospects of employment in the care sector, the denial of an opportunity to answer allegations before being listed meant that s 82(4)(b) contravened the right to a fair hearing under article 6(1) of the convention. the house of lords further held that the listing of a person on suspicion of such serious misconduct as to indicate that he or she posed a risk to vulnerable adults could result in stigma so great as to constitute an interference with the right to respect for private life under article 8 of the convention. accordingly, their lordships made a declaration that s 82(4) was incompatible with articles 6 and 8 of the convention. the day before the judgment was handed down, the government announced that the independent safeguarding authority (isa) had assumed full responsibility for deciding whether a person should be barred from working with children and vulnerable adults. 150 this new barring system was a completely different system to that considered in wright. indeed, the existence of the new scheme was referred to in the judgment but the law lords noted that they had ‗not heard argument upon whether or not that scheme is compatible with the convention rights as the question does not arise on these appeals‘. 151 the new vetting and barring system was established in response to findings of the bichard inquiry, which had been set up in 2004 following the conviction of ian huntley, a school caretaker, for the murders of two schoolgirls. 152 the inquiry report recommended, amongst other things, that a registration scheme should be established for those wishing to work with children or vulnerable adults. the safeguarding vulnerable groups act 2006 provided for such a scheme, maintained by the isa. 153 in short, the abolition of the old scheme and the introduction of the new vetting and barring scheme were not instigated by the declaration in wright. 17. r (f and thompson) v secretary of state for the home department [2010] uksc 17, [2011] 1 ac 331 the claimants were sex offenders. by virtue of the nature of their offences and the length of their sentences, they became automatically subject for an 150 hc deb 20 january 2009, vol 486, col 23ws. 151 [2009] 1 ac 739, 755. 152 after mr huntley was convicted, it was revealed that, although he had been investigated for sexual offences, he had been able to work at a school because none of those investigations had resulted in a conviction. 153 explanatory notes to the protection of freedoms act 2012 (uk), 11. the denning law journal 81 indefinite period to the notification requirements in ss 82 – 86 of the sexual offences act 2003. by these requirements, an offender has to inform the police of certain personal details and by the sexual offences act 2003 (travel notification requirements) regulations 2004, made pursuant to s 86, an offender has to inform the police of the details of foreign travel plans. these notification requirements are what are known colloquially as the ‗sex offenders register‘. 154 the divisional court of the queen's bench division made a declaration that the absence of any mechanism for review of the notification requirements in the 2003 act was a disproportionate interference with the right to respect for private and family life guaranteed by article 8 of the convention. 155 on appeal, the decision was upheld by the court of appeal 156 and the supreme court. the supreme court‘s judgment was handed down on 21 april 2010. the government‘s response took some time to develop but, when it came, it was ferocious. on 16 february 2011, the home secretary, ms may, made a statement in the house of commons in which she declared that the government was ‗disappointed and appalled‘ by the decision in f and thompson. she proclaimed that the government would make the ‗minimum possible changes to the law in order to comply with the ruling‘. 157 prime minister cameron also declared that he was ‗appalled‘ by the decision, stating how ‗completely offensive‘ it was to ‗once again…have a ruling by a court that flies in the face of common sense‘. 158 interestingly, the home secretary asserted that: ―i would far rather not have to stand here saying that we have to make a change to the sex offenders register, but we do have to make a change.‖ 159 154 terry thomas and david thompson, ‗applications to come off the uk sex offender register: the position after f and thompson v. home office 2010‘ (2012) 51(3) howard journal 274 at 274. 155 [2008] ewhc 3170, [2009] 2 cr app r (s) 47. 156 [2009] ewca civ 792, [2010] 1 all er 1024. 157 hc deb 16 february 2011, vol 523, col 959. 158 ibid col 955. other government members also voiced their displeasure with f and thompson: see ‗mp slams sex offender ruling‘ essex chronicle (chelmsford), 24 february 2011; ‗pm ―appalled‖ by ruling on sex register‘ coventry telegraph (uk), 17 february 2011. 159 hc deb (n 157) col 961. dialogue and declarations of incompatibility under section 4 of the human rights act 1998 82 after this assertion was made, labour mp jack straw put the following proposition to ms may: ―[will] she confirm that under section 4 of the human rights act 1998 there is absolutely no obligation on her or the house to change the law one bit? all the court did was to issue a declaration of incompatibility and section 4 makes it absolutely clear that any decision following that is a matter for the sovereign parliament. it would be entirely lawful for the house and her to say that the existing regime will continue without any amendment.‖ 160 the home secretary responded to that proposition in the following terms: ―the right hon. gentleman makes a point about the application of the human rights act and the european convention on human rights and about parliament having the final decision about what should happen. in this case, parliament will have the final decision on what happens.‖ 161 it is probably fair to say that the home secretary fudged the issue. if she had been willing to answer the question directly, her answer may have been along the following lines, ‗it is politically easier for the government to blame the judiciary and make minor changes to the legislation than it is to leave the legislation as it stands and provoke a constitutional crisis‘. 162 of course, there may very well have been other reasons why the government thought it necessary to amend the legislation. when the amending instrument was eventually placed before parliament (the sexual offences act 2003 (remedial) order 2012), the conservative peer, baroness stowell of beeston, stated that: ―our constitutional arrangements are such that when the highest court of the land identifies an incompatibility with the european convention on human rights, the government of the day, whoever is in power, take remedial action. this is for various reasons, not the least of which is to ensure that the government are not left vulnerable to further legal 160 ibid col 963. 161 ibid col 963. 162 in this context, see vernon bogdanor, ‗who decides when mps and courts collide?: britain is fast approach a crisis of authority that only a written constitution can resolve‘ the times (london), 25 may 2011, 22. the denning law journal 83 proceedings, potentially involving millions of pounds of taxpayers‘ money.‖ 163 in other words, the threat of proceedings in the ecthr (which the government clearly could not win) was a powerful incentive to amend the legislation. the sexual offences act 2003 (remedial) order 2012 enabled sex offenders to apply to the police for a review of whether their notification requirements should cease. the application could only be made once a fixed period of time had expired following the offender‘s release from custody: for adults this period was 15 years and for children it was 8 years. offenders could appeal from the police decision to the magistrates‘ court but the onus would be on them to demonstrate that they no longer posed a risk to the community. it is unclear whether this new policy was a distortion of the old (that is, less effective but more easily defensible before the courts). 164 the labour party certainly had serious reservations about the costs involved in allowing offenders to apply for a review and the risk to the community in permitting offenders to come off the register. they refused to support the new policy. 165 unfortunately, sex offences committed by persons released from the register will be a prerequisite to determining whether the labour party‘s stance was correct. it is possible that the government‘s rage over f and thompson was merely confected. the outbursts from the prime minister and the home secretary occurred well after the decision was handed down. the government did, of course, theoretically have the power to ignore f and thompson and the home secretary did concede that parliament would make the final decision on the appropriate policy. if the government had chosen not to amend the legislation, the labour party may very well have supported that position. it seems more likely, however, in light of ms may‘s subsequent declaration that the next conservative government would scrap the hra, 166 that the frustration expressed by conservative politicians about f and thompson was genuine. the conservatives were probably confronted with a conundrum similar to that faced by the labour government after the anderson 163 hl deb 5 july 2012, vol 738, col 875. 164 manfredi and kelly (n 107) 522. 165 hl deb (n 163) col 879-883 (baroness smith). see also the comments of diana johnson in hc deb, eighth delegated legislation committee debates, 19 june 2012. <http://www.publications.parliament.uk/pa/cm201213/cmgeneral/deleg8/120619/120 619s01.htm>. 166 may (n 141). dialogue and declarations of incompatibility under section 4 of the human rights act 1998 84 decision. they did not want to afford criminals additional rights but, by the same token, they did not want to come into direct conflict with the highest court in the nation. ignoring the declaration would simply mean that the matter would be taken to the ecthr where the government would inevitably lose. there may have been another factor that influenced the policy outcome: the fact that the government was a coalition between the conservative party and the liberal democrat party. the liberal democrats were probably much more inclined to accept that the government should follow the supreme court‘s ruling than many conservatives were. 167 amendment of the legislation may have been a price that conservatives such as the prime minister and the home secretary were willing to pay in order to keep the coalition intact. the making of the sexual offences act 2003 (remedial) order 2012 was about raw politics; it had little to do with principle. neither the conservative party nor the labour party really thought that allowing sex offenders an opportunity to come off the register was a good idea. it would be far-fetched to describe the process as having involved a genuine exchange of opinions about rights. like anderson, if there was any flow of information, it was closer to a monologue, judges doing the talking and legislatures the listening, than a dialogue. 18. r (royal college of nursing) v secretary of state for the home department [2010] ewhc 2761 (admin); [2011] ptsr 1193 the safeguarding vulnerable groups act 2006 provided for a registration scheme for those wishing to work with children or vulnerable adults, which was maintained by the isa. under the scheme, persons convicted of or cautioned for a serious sexual offence would be placed on the barred lists with no opportunity to make representations as to why their inclusion might be unwarranted. 168 pursuant to 167 see eg libby brooks, ‗this is not the way to keep us safe from sex offenders: david cameron's ―stand against paedophiles‖ is more to do with ditching the human rights act than protecting victims‘ the guardian (london), 18 february 2011; allegra stratton, ‗nick clegg tells lib dems: power means accepting unpopularity: more than 1,000 police officers on duty or standby at conference, ready for mass protests‘ the guardian (london), 11 march 2011; see also the comments of the liberal democrat peer, lord lester: hl deb 5 july 2012, vol 738, col 884-6. 168 see ralph sandland ‗policing care in the house of lords‘ [2009] j mental health l 171, 174-175. the denning law journal 85 paragraph 8 of schedule 3 to the act (when read with the regulations 169 ), persons convicted of or cautioned for specified offences that were less grave than the aforementioned serious sexual offences would also be automatically placed on the barred lists but had the right to make representations as to why they should be removed. it is the latter category with which the royal college of nursing case was concerned. the facts of royal college of nursing were that the isa placed the second to fourth claimant nurses on the barred lists after having been informed that they had been cautioned for relatively minor offences. their names were subsequently removed but the nurses suffered a significant loss of wages during the periods when they had been unable to work. the first claimant, a body representing the interests of the nursing profession, and the nurses challenged the lawfulness of the scheme. on 10 november 2010, mr justice wyn williams held, after considering the decision in wright, that the nurses‘ inability to make representations in advance of listing was a breach of article 6 of the convention. his honour also found that the scheme gave rise to potential breaches of article 8. accordingly, his honour declared that paragraph 8 of schedule 3 to the act was incompatible with articles 6 and 8 of the convention. by the time that the case was argued before mr justice wyn williams, the new conservative/liberal democrat government had already announced that the vetting and barring scheme would be reviewed and remodelled. 170 in the review report dated february 2011, the government stated: ―following a recent judicial review brought by the royal college of nurses, the ―autobar with representations‖ element of the scheme has been found by the courts not to be compatible with human rights obligations, to the extent that a person is barred before having any opportunity to make representations against the decision. this decision has been accepted by ministers and it follows that this process must be changed in any new scheme.‖ 171 the process was changed by s 67 of the protection of freedoms act 2012. under the new process, the isa was required to seek representations from an 169 safeguarding vulnerable groups act 2006 (prescribed criteria and miscellaneous provisions) regulations 2009 (uk), sch (reg 6 and para 4). 170 explanatory notes to the protection of freedoms act 2012 (uk), 11. mr justice wyn williams referred to the review in the course of his judgment: [2011] ptsr 1193, 1228. 171 home office (uk), vetting and barring scheme remodelling review – report and recommendations, 11 february 2011, 25. dialogue and declarations of incompatibility under section 4 of the human rights act 1998 86 individual who had committed one of those specified offences less grave than a serious sexual offence prior to reaching a decision on whether to place that person on the barred lists. if no representations were received within the prescribed time period, the isa was required to place the individual on the lists. the need to amend the act was, as the review report indicated, accepted by the government. the new process was uncontroversial and proceeded unchallenged through parliament. 172 accordingly, it can be concluded that royal college of nursing probably did result in an exchange of views about rights between the judiciary and parliament pursuant to which policy may very well have been constructively amended. 19. conclusions of the 18 cases in which declarations of incompatibility have been finalised, 17 have resulted in change to legislation for one reason or another. the only case in which the making of a declaration of incompatibility pursuant to s 4 of the hra has not resulted in legislative change is smith v scott. the issue of whether prisoners will get the vote should be decided, at the latest, by the outcome of the 2015 general election. that election is also likely to be critical in determining the future of the hra. of the 17 cases resulting in legislative change, it could only rightly be argued that 8 of them involved a process of ‗dialogue‘ between the courts, parliament and the executive (that is, there was an exchange of ideas about human rights pursuant to which policy goals were revised, but not blocked, following the judicial decision):  r (h) v london north and east region mental health review tribunal  international transport roth gmbh v secretary of state for the home department  r (d) v secretary of state for the home department  r (morris) v westminster city council (no 3)  r (gabaj) v first secretary of state  r (clift) v secretary of state for the home department  r (baiai) v secretary of state for the home department (nos 1 and 2)  r (royal college of nursing) v secretary of state for the home department 172 the reading debates can be found at hc deb 1 march 2011, vol 524, col 205-271; hc deb 11 october 2011, vol 533, col 281-301; hl deb 8 november 2011, vol 732, col 167-228; hl deb, 12 march 2012, vol 736, col 15-69. the denning law journal 87 of those 8 cases, 2 dealt with the exactly the same statutory provision: morris and gabaj. it should also be noted that the declaration in d had no real effect because the new legislation simply accorded with what the government‘s practice had always been. it could not be rightly argued that the other 9 cases involved a process of ‗dialogue‘. in 6 of those 9 cases, the process of amending the impugned legislation was well underway, or indeed completed, by the time the court made the declaration of incompatibility:  re an application for judicial review by mcr  blood and tarbuck v secretary of state for health  bellinger v bellinger  r (m) v secretary of state for health  r (wilkinson) v inland revenue commissioners  r (wright) v secretary of state for health in these 6 cases, the making of a declaration did not cause the legislative change. there could not have been ‗dialogue‘ because the policy goals were revised before the judicial decision, not after. the remaining 3 cases were the ones that attracted the most public interest:  r (anderson) v secretary of state for the home department  a v secretary of state for the home department (‗belmarsh‘)  r (f and thompson) v secretary of state for the home department in each of these 3 cases, the making of the declaration was a direct cause of the legislative change that followed. however, in at least 2 cases, anderson and belmarsh, the government was well aware of the human rights arguments against the relevant legislation long before the judicial decision was handed down. in all 3 cases (especially in relation to belmarsh), there is strong evidence to support the proposition that the government did not want to amend the relevant legislation but was compelled to by the judicial decision. furthermore, in at least 2 cases, belmarsh and f and thompson, there is some evidence to suggest that the new public policy, forced into place by the judicial decision, may be less effective than the old. it seems strained, to say the least, to describe as ‗dialogue‘ a process whereby one party knows the arguments against its position, does not accept them, receives a ‗signal‘ 173 173 young (n 2) 10. dialogue and declarations of incompatibility under section 4 of the human rights act 1998 88 from another party that those arguments should be accepted, then complies with those arguments even though they disagree with them for perfectly valid reasons. 174 whether or not the process is described as ‗dialogue‘, ‗institutional interaction‘ or something else is probably irrelevant; what is important is to recognise that parliament does not, in reality, have much, if any, freedom to disagree with the conclusions of the courts on questions of rights when a declaration has been made. this has obvious implications for the traditional notion of parliamentary sovereignty in the united kingdom. as predicted by mark tushnet, the hra may very well have escalated into what is effectively strong-form judicial review. 175 as cases such as r (h) v london north and east region mental health review tribunal indicate, it is possible that the making of a declaration might lead to a constructive modification of public policy (from a rights perspective). however, as belmarsh and f and thompson suggest, it is also possible that declarations might lead to less effective policy. further research in this respect is clearly required, especially in circumstances where parliament appears to have at least some capability of dealing with rights issues in the absence of ‗signals‘ in the form of s 4 declarations. if the policy benefits of ‗dialogue‘ are negligible then the wisdom of revising the longestablished model of responsible government in the united kingdom might be called into question. 174 see sales and ekins (n 15) 230 but cf alison young, ‗is dialogue working under the human rights act 1998?‘ [2011] pl 773. 175 mark tushnet, ‗new forms of judicial review and the persistence of rights and democracy-based worries‘ (2003) 38 wake forest l rev 813, 836. human rights, 'arranged' marriages and nullity law: when do 'force', parental denning law journal 2014 vol 26 pp 62 97 human rights, “arranged” marriages and family law: should culture override or inform fraud and duress? jocelynne a scutt∗ abstract family law in australia and fiji provides that marriages can be void on various grounds, including duress and fraud. despite some differences, united kingdom (uk) law says marriages can be void or voidable on similar grounds. courts in each jurisdiction have granted annulment in cases of forced marriage where duress “threatens life and limb”. courts now say lesser force or threats, including pressure to comply with religious or traditional duty, can nullify marriage. yet courts continue to require high level force such as passport confiscation, physical abuse, threats of eviction from the family home, and economic harm. this, as with allegations of fraud which receive short shrift, results from returning to common law authorities decided before migration resulted in significant demographic changes, particularly regarding culture and religion. uk authority draws a distinction between “forced” and “arranged” marriages, saying nullity is granted rightly in cases of the former, yet because “culture” “sanctifies” the latter, refusing nullity is right. yet is this distinction valid? should such marriages be recognised by australian, fijian and uk courts as contracted with full and free consent of the parties? an exploration of contemporary cases against the common law background to fraud and duress as nullity grounds indicates that allowing culture to be the measure denies women’s (and sometimes men’s) entitlement to contract marriage with full and free consent according to international human rights law. introduction in april 2013, pakistan’s sindh province passed the child marriage restraint act criminalising marriages of girls under 18 years of age.1 earlier, in march 2011, the german bundestag approved a law imposing ∗ the hon dr jocelynne a scutt, barrister and human rights lawyer, visiting professor and senior fellow, the university of buckingham. 1 see further below. 62 the denning law journal five years imprisonment upon any person convicted of forcing another into marriage.2 germany, along with austria, the netherlands and prospectively belgium, also imposed a minimum age for marriage visas. so did the uk. later (in 2014) forcing someone into marriage in england and wales or forcing a british national into marriage outside the uk became unlawful, carrying a seven-year maximum penalty.3 however, the uk visa requirement came under challenge. in october 2011, the supreme court in r (on the application of quila and another) (fc)(respondents) v secretary of state for the home department (appellant)4 struck down paragraph 277 of the immigration rules banning entry for settlement of foreign spouses or civil partners unless both were 21 years or above. england & wales cases these criminal and civil law measures were intended to combat forced marriage. generally, the problem is understood as having become acute in western countries with increased migration from countries where culture, religion and tradition are perceived to play a major role in selection of marriage partners for reasons other than “love match” or “acceptable” arrangement.5 with forced marriage, choice is not open to the parties. in quila6 the secretary of state advanced the sole purpose of the rule as being to deter or prevent forced marriage. the rule provided that no partner or prospective partner under 21 years of age would be issued with a marriage visa, namely entry clearance, leave to enter, leave to remain or variation of leave on marriage grounds. the supreme court considered a 2 ‘penalties for forced marriages: berlin passes new integration measure’, spiegelonline (18 march 2011), <http://www.spiegel.de/international/germany/penalties-for-forced-marriageberlin-passes-new-integration-measures-a-7517409.html> accessed 21 march 2011. 3 anti-social behaviour, crime and policing act 2014 (uk), ss 121 and 122. 4 [2011] uksc 45. 5 quila (ibid (n 4)) [9] (lord wilson) puts the ‘prevalence of forced marriage within sections of’ the uk community as coming ‘increasingly to the attention of a shocked public’ over the preceding 12 years ‘as victims of it, or witnesses to it, have at least and less infrequently summoned the courage to report it’. the 1999 date is referable to the home office having established in that year a forced marriage working group. “arranged” marriages are seen as acceptable, a distinction being drawn between the latter and forced marriages. see further this article. 6 [2011] uksc 45. 63 http://www.spiegel.de/international/germany/penalties-for-forced-marriage-berlin-passes-new-integration-measures-a-7517409.html http://www.spiegel.de/international/germany/penalties-for-forced-marriage-berlin-passes-new-integration-measures-a-7517409.html human rights, ‘arranged’ marriages and family law legitimate aim under article 8 of the european convention on human rights (echr) “for the rights and freedoms of others” to be “preventing, deterring or delaying” forced marriages. yet was the rule necessary in a democratic society as a proportionate response to a pressing social need?7 wilson lj adopted bingham lj’s huang v secretary of state for the home department8 formula: a) is the legislative objective sufficiently important to justify limiting a fundamental right? b) are the measures designed to meet it rationally connected to it? c) are they no more than necessary to accomplish it? d) do they strike a fair balance between the rights of the individual and the interests of the community?9 the majority (brown lj dissenting)10 determined the rule as incompatible with article 8. hale lj identified three bases for offending against proportionality: • interfering with “many more entirely voluntary marriages” than preventing, deterring or delaying forced marriages, the secretary of state “scarcely [having] considered … the scale and severity of the impact upon these unforced marriages”;11 • an “entire lack of clarity” whether the rule had the “desired effect upon the marriages it [was] designed to prevent or deter”;12 and • the rule “may do a great deal more harm than good” for “a young woman may be sent abroad and forced to marry against her will and kept there until she can sponsor her husband to [the united kingdom]. during this time she may be raped many times, bear children she does not want to have and be deprived of the education and life she would otherwise have had [in the uk] …”13 albeit addressing immigration law, r (quila and another) v secretary of state is instructive when it comes to nullity of forced marriages. 7 quila (ibid (n 4)) [45] (lord wilson), [73] (lady hale). 8 [2007] 2 ac 167. 9 quila (ibid (n 4)) [49] (lord wilson). 10 ibid [81]-[97]. 11 ibid [74]. 12 ibid. 13 ibid [75]. 64 the denning law journal forced and arranged marriages the family law act 1996 (ew) addresses this at point of marriage: s 63q shortly after issuing rule 8, the secretary of state published a guide to forced marriage, identifying “some of the key motives”, said to include: • controlling unwanted sexuality (including perceive promiscuity, or being lesbian, gay, bisexual or transgender) – particular the behaviour and sexuality of women. • controlling unwanted behaviour, for example, alcohol and drug use, wearing make-up or behaving in a “westernised manner”. • preventing “unsuitable” relationships, for example, outside the ethnic, cultural, religious or caste group. • protecting “family honour” or “izzat”. • responding to peer group or family pressure. • attempting to strengthen family links. • achieving financial gain. • ensuring land, property and wealth remain within the family. • protecting perceived cultural ideals. • protecting perceived religious ideals which are misguided. • ensuring care for a child or vulnerable adult with special needs when parents or existing carers are unable to fulfil that role. • assisting claims for uk residence and citizenship. • long-standing family commitments.14 in england and wales, a distinction is drawn between forced and arranged marriages, the latter being acceptable, the former not.15 acceptability is spelled out by wilson lj in quila as where one party 14 ibid [76]. 15 see forced marriage unit (fmu), forced marriage: a wrong not a right – summary of responses to the consultation on the criminalisation of forced marriage (foreign & commonwealth office, london, uk); home office, a choice by right – the report of the working group on forced marriage (london, 2000); centre lgs, response to the home office consultation document – ‘forced marriage: a wrong not a right’, anrc research centre for law, gender and sexuality, london, uk, november 2005; uk parliament, ‘forced marriage (civil protection) bill [hl]’, hansard – house of lords, 26 january 2007, pp 1-5, <http://www.publications.parliament.uk/pa/pabills/200607/forced_marriage_civil _protection.htm> accessed 14 april 2014. 65 human rights, ‘arranged’ marriages and family law enters “not only without her or his free and full consent but also as a result of force including coercion by threats or by other psychological means”, citing ss 63a (4) and (6) family law act 1996, inserted by s 1 of the forced marriage (civil protection) act 2007.16 further, a forced marriage is “entirely different” from an arranged marriage where “in conformity with their cultural expectations, two persons consent to marry pursuant to an arrangement negotiated between their respective families”.17 next, referring to the universal declaration of human rights (udhr) 1948: article 16(2), international covenant on civil and political rights (iccpr) 1966, article 23(3) and echr, article 12, wilson lj said forced marriage is a “gross and abhorrent violation” of rights. 18 apart from the echr, these, along with other international instruments, refer to free consent to marry. the udhr affirms “free and full consent of the intending spouses”,19 which the iccpr reiterates (article 23), adding the “right of men and women of marriageable age to marry”.20 albeit not referred to, article 16(1)(b) of the convention on the elimination of all forms of discrimination against women (cedaw) insists on a “basis of equality of men and women”, with free choice of spouse and “full and free consent”.21 the cedaw committee’s general recommendation 21 specifically affirms women’s rights of spousal choice and entering marriage freely as “central to her life and her dignity and equality as a human being”. 22 meanwhile, the international covenant on economic, social and cultural rights (icescr) article 10 says marriage “must be entered into with the free consent of the intending spouses …”23 curiously, the echr refers (article 12) to the udhr, yet omits reference to consent or choice, potentially sanctioning state laws countenancing marriage without free consent: “men and women of 16 quila (ibid (n 4)) [9]. 17 ibid. 18 ibid. 19 udhr 1948, <http://www.un.org/en/documents/udhr/> accessed 21 april 2014. 20 iccpr 1966 <http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx> accessed 21 april 2014. 21 cedaw 1979, <http://www.un.org/womenwatch/daw/cedaw/> accessed 21 april 2014. 22 cedaw committee, general recommendation no 21 (13th session 1994), ‘equality in marriage and family relations’ [16], <http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#rec om21> accessed 21 april 2014. 23 icescr 1966, <https://treaties.un.org/pages/viewdetails.aspx?chapter=4&lang=en&mtdsg_no=i v-3&src=treaty> accessed 21 april 2014. 66 http://www.un.org/en/documents/udhr/ http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx http://www.un.org/womenwatch/daw/cedaw/ http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm%23recom21 http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm%23recom21 https://treaties.un.org/pages/viewdetails.aspx?chapter=4&lang=en&mtdsg_no=iv-3&src=treaty https://treaties.un.org/pages/viewdetails.aspx?chapter=4&lang=en&mtdsg_no=iv-3&src=treaty the denning law journal marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”24 it is also curious that arranged marriages are not seen to contradict full and free consent. wilson lj cites cultural expectations in conjunction with consent, as if culture or cultural imperatives remove a marriage from possible force or lack of consent. yet the icescr explicitly mandates intending spouses’ free consent. further, many marriages are arranged in conformity with the secretary of state’s indicators for forced marriages. notably, wilson lj sees forced marriages as not only denoting lack of free and full consent but having an additional factor of force,25 defined as including coercion by threats or by other psychological means. yet none of the international instruments referring to marriage by consent says or implies lack of its full and free or free character must be by force, whether of the nature contemplated by wilson lj or not. wilson lj seems to posit two steps: prove lack of free and full consent; prove force and coercion, as if somehow the two are separate and distinct rather than necessarily part and parcel of the same design or proof. surely force and coercion are not additional to a lack of full and free consent, but are what can make consent neither full nor free. further, if an arrangement is negotiated by persons not being the parties to the marriage, this should at least raise a question – even a doubt whether consent is full and freely given. is consent in such circumstances real, or at least a query as to its reality required? family law encapsulates these issues. that a distinction can be drawn with clarity or meaning between forced marriages and arranged marriages – if the determinant is full and free consent to wed is demonstrably misleading. yet despite contrary protestations, nullity cases in england and wales and australia (and originally fiji) where duress is in issue ultimately rely on variations on force – consistent with wilson lj’s view in quila. the notion that culture removes arranged marriages from categorisation as forced also impacts with fraud. nullity under statute the family law act 1975 (cth) recognises nullity “based on the ground that the marriage is void”: s 51 the marriage act 1961 (cth) says 24 convention for the protection of human rights and freedoms, <http://www.echr.coe.int/documents/convention_eng.pdf> accessed 21 april 2014. 25 quila (ibid (n 4)) [9]. 67 http://www.echr.coe.int/documents/convention_eng.pdf human rights, ‘arranged’ marriages and family law a marriage is void where consent of either party is not a real consent because: (i) it was obtained by duress or fraud; (ii) that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or (iii) that party is mentally incapable of understanding the nature and effect of the marriage ceremony; …: s 23b(1)(d) although australia and fiji refer to void and not voidable marriages, while the matrimonial causes act 1973 (ew) refers to both, these provisions originate in common law. matters akin to those covered by s 23b (marriage act (cth)) and s 32 (family law act (fiji)) come under s 12 of the matrimonial causes act (ew) as voidable: • either party has not consented to the marriage, by reference to duress, mistake, unsoundness of mind or otherwise, or capability for valid consent not lacking at time of marriage, but either party suffering from a mental disorder (per the mental health act 1959 (ews)) of such kind or to such extent as to be unfitted for marriage; • the respondent suffers from communicable venereal disease at the time of the marriage, or is pregnant by a person other than the applicant. focusing on duress and fraud, noting the (purported) forced and arranged marriages distinction, how are these provisions applied and what is the common law background continuing to influence outcomes? consent, coercion, force and duress wilson lj’s apparent contention (in quila) that lack of consent must be proven with additional use of force obfuscates full and free consent and lack of it. consent is: • “permission for something to happen or agreement to do something”;26 or • “to give assent or approval”;27 or 26 shorter oxford english dictionary (5th edn, oup 2002). 27 merriam webster dictionary (11th edn, random house 2005). 68 the denning law journal • a “concurrence of wills” where: “express consent is that directly given, either lira voce or in writing. implied consent is manifested by signs, actions, or facts. or by inaction or silence, which raise a presumption that consent has been given … it is an act of reason, accompanied with deliberation, the mind weighing as in a balance the good or evil on each side.” 28 “force” is defined as “compulsion, constraint or obligation to do something”; “driving or propelling against resistance”;29 “to bring about or effect by force” or “bring about of necessity or as a necessary result”; “to put or impose (something or someone) forcibly on or upon a person”;30 “to compel by force; overcome the resistance of”; “exertion or the use of exertion against a person or thing that resists; coercion.”31 “coercion” is “to make (someone) do something by using force or threats”; “to get (something) by using force or threats”;32 “to restrain or dominate by force”; “to compel to an act or choice”;33 “to achieve by force or threat”.34 “duress” is “compulsion by threat or force, coercion, constraint”; “law: such constraint or coercion as will render void a contract or other legal act entered or performed under its influence”;35 “forcible restraint, especially imprisonment”.36 synonyms include intimidation, pressure, bullying, browbeating.“full and free” imports the notion that a party suffers no irresistible impediment or pressure on their will so as to overbear it. contemporary nullity cases assert that overt force or threats of a physical nature are unnecessary. yet scott v sebright37 continues to be cited as leading authority. butt j in this case asserts that for fraud and duress consent to marriage should be “tested and determined in precisely the same manner as … any other contract”, butt j continued: “true it is that in contracts of marriage there is an interest involved above and beyond that of the immediate parties. public policy requires that marriage should not be lightly set aside, and 28 black’s law dictionary (10th edn, thomson west 2014). 29 random house dictionary (random house 2011). 30 world english dictionary (oup 2012). 31 collins english dictionary (11th edn, harpercollins, glasgow, 2011). 32 random house dictionary (n 29). 33 world english dictionary (n 30). 34 collins english dictionary (n 31). 35 random house dictionary (n 29). 36 collins english dictionary (n 31). 37 (1886) 12 pd 21. 69 human rights, ‘arranged’ marriages and family law there is in some cases the strongest temptation to the parties more immediately interested to act in collusion in obtaining dissolution of the marriage tie. these reasons necessitate great care and circumspection on the part of the tribunal, but they in no wise alter the principle or the grounds on which this, like any other contract, may be avoided.”38 butt j went on to disagree that to avoid a contract entered into through fear “the fear must be such as would impel a person of ordinary courage and resolution to yield to it”, for: “whenever from natural weakness of intellect or from fear – whether reasonably entertained or not – either party is actually in a state of mental incompetence to resist pressure improperly brought to bear, there is no more consent than in the case of a person of stronger intellect and more robust courage yielding to a more serious danger. the difficulty consists not in any uncertainty of the law on the subject, but in its application to the facts of each individual case.”39 butt j’s contention as to mental incompetency; his implication that duress or coercion must involve danger, even serious danger and fear; and his focus on prioritising “maintaining” marriage are troubling. although appearing to be a concession to recognising different levels of capacity to resist pressure to consent, “mental incompetency” effectively does the opposite. at the very least it implies that the person (who is not of “more robust courage and stronger intellect”) must, to establish absence of consent, be lacking in “ordinary” mental capacity (“weakness of intellect”). yet a person of ordinary mental capacity (and one robust, of stronger will or even “courage”) may well be overborne by religious or cultural expectations and filial duty, whether there is danger, “serious danger” or what might be accepted as fear in reaction to danger. in any event, incompetence of mind such as to impede a person’s capacity to understand the nature or effect of marriage or that s/he is participating in a marriage ceremony is now covered by a separate head: s 23b (d) (ii) and (iii) of the matrimonial causes act (cth), s 32(2) (d) (ii) and (iii) of the family law act (fiji), and s 12 of the family law act (ew). why import a mental incompetency requirement into duress or force? even if done to expand the scope of force or duress it simply adds confusion. as for butt j’s reference to policy, surely an equally compelling “interest … above 38 ibid [23] this is so for canada, too: rh v rt 2011 bcsc 67. 39 ibid [23-24]. similarly for canada: rh v rt (ibid). 70 the denning law journal and beyond that of the immediate parties” is to make sure that no marriages are entered into without full and free consent. the policy requirement not to maintain such marriages must be just as important (or more so) a public interest as maintaining marriages entered into by full and free consent. this is the impetus behind concerns as to forced marriage – and arguably equally applicable to arranged marriages.40 more recent cases purportedly abjure scott v sebright’s notion that duress must involve danger and fear. hirani v hirani41 is frequently cited. there, annulment was refused at first instance on the basis that duress asserted as applied by ms hirani’s parents was not duress as required by law. nineteen at the time of the marriage, ms hirani was living in england with her parents, british indian hindus who objected to her association with mr hussain, a muslim of indian background. they arranged for her marriage to mr hirani whom she and her parents first met at the registry office. the threats directed to ms hirani and upon which she relied were articulated as: “you want to marry somebody who is strictly against our religion? he is a muslim, you are a hindu; you had better marry somebody we want you to, otherwise pack up your belongings and go. if you do not want to marry mr hirani and you want to marry mr husain, go.”42 the court accepted that leaving the family home meant ms hirani had “no place to go and no means of supporting herself at that age and in those circumstances”, and “in spite of her opposition, ... was forced to go through with the civil ceremony”.43 consistent with hindu tradition, she returned to her parents’ home, going to live with mr hirani after the religious/traditional ceremony some six weeks later. ms hirani’s evidence was that she “was crying all the way through” the ceremony and “was utterly miserable”.44 she lived with mr hirani for six weeks, not engaging in sexual intercourse with him. upon leaving, she went to mr hussain. granting the appeal and annulment, ormrod lj said it was not necessary to find a threat to life, limb or liberty to establish duress, the key question being “whether threats or pressure were such as to overbear” the 40 as to arranged marriages see further below. 41 [1982] ewca civ 1, [1983] 4 flr 232. 42 ibid. 43 ibid. 44 ibid. 71 human rights, ‘arranged’ marriages and family law individual’s will, destroying the reality of consent.45 whatever form duress takes, “it must involve coercion of the will so as to vitiate consent”.46 the threats and pressure employed by ms hirani’s parents “clearly overbore her will”, invalidating or vitiating consent.47 this contests szechter v szechter48 where threat to life, limb or liberty was the criterion by which reality of consent should be measured.49 yet shortly before hirani, singh v kaur50 reiterated this standard, saying a lack of threats to life, limb or liberty meant the nullity application was rightly refused, relying on singh v singh.51 in the latter, ms singh was 17 years when undergoing a civil marriage ceremony, never having met the man previously. being sikh, the coercion she related was religion, custom and duty to her parents. this was considered inadequate to vitiate consent. in the former, whilst in india, a 21-year-old who from four years of age had lived in england was told by his parents that refusing to marry the partner they had chosen would bring shame upon the family and he would be disowned – banned from the family home and family business. his contention that emotional coercion vitiated consent was not accepted as life, limb or liberty threatening. nonetheless, in nh v mi,52 munby j observed it is “no longer the law, if it ever was”, that marriage was voidable for duress “only if ... there was threat of immediate danger to life, limb or liberty …”53 yet nh v mi ultimately hung upon facts clearly showing extreme force and threats: 45 ibid 2-3. 46 ibid 3. 47 ibid. 48 [1971] p 286. 49 ibid 297-98. 50 [1981] famlaw 152. 51 [1971] p 226. 52 [2006] ewhc 1646 (fam). 53 ibid [27], citing szechter ibid (n 48)), singh v singh (ibid (n 52)) and singh v kaur (ibid (n 51)) as support for the earlier position, and hirani (ibid (n 41)) as the ‘new’ position. for a view on the situation in australia, where the authors assert a ‘disjuncture between domestic legal and political responses to forced marriage faced by nationals of western states with the response of refugee law to forced marriages occurring elsewhere’ see catherine dauvergne and jenni millbank, ‘forced marriage as a harm in domestic and international law’ (2010) 73 (1) mlr <http://papers.ssrn.com/sol3/papers.cfm?abstratct_id=1563842> accessed 2 may 2014. as the present article confirms, dauvergne and millbank attribute greater latitude in nullity applications than exists in practice. see also frances simmons and jennifer burn, ‘without consent: forced marriage in australia’ (2012) 36 melbourne university law review 970. similarly for the uk, david bradley, ‘duress and arranged marriages’ (1983) 46 mlr 499; a bradney, ‘duress, 72 http://papers.ssrn.com/sol3/papers.cfm?abstratct_id=1563842 the denning law journal • living in england since her birth, nh was taken to pakistan shortly after her sixteenth birthday, ostensibly a holiday her parents assured her was not for the purpose of marriage; • her expectation (based on parental assurances) of returning to england two months later went unfulfilled: nh was kept in pakistan by relatives, until at 17 years she underwent a marriage ceremony with her 17-year-old cousin; • between arriving in pakistan and marriage, realising or at least concerned marriage was planned, nh constantly telephoned her parents, particularly her mother, for clarification, begging to return to england; • her mother prevaricated, saying her father would be arriving and nh should remain to be in pakistan with her father; • eventually her mother confirmed marriage as the purpose, her cousin the chosen partner (her mother’s brother’s son); • nh’s boyfriend sent his parents to ask for her hand in marriage, creating disturbance amongst the relatives and consternation for her parents, who threatened suicide if she refused to marry the cousin; • her parents told nh she would not be allowed to return to england unless she participated in the marriage; • after the marriage, nh lived in the cousin’s household without intercourse occurring, and signed documents only when her mother said she would not be allowed to return to england without signing. at minimum, being held against her will – false imprisonment or kidnapping – comes within the strictures of threat to life, limb or liberty. this is a common pattern. first, court assertions that such extreme coercion is not required. then, nullity granted on coercion fulfilling the “old” – said to be obsolete – standard. hirani exhibits this – being “thrown on the street” at 17 years, disowned by family, without financial resources. family law and the coherent legal system’ (1994) 57 (6) mlr 963; anne phillips and moira dustin, ‘uk initiatives on forced marriage: regulation, dialogue and exit’ (2004) 52 (3) political studies 531 and canada, bruce ziff, ‘recent developments in marriage and divorce’ (1986) 18 ottawa law review 21. 73 human rights, ‘arranged’ marriages and family law australian cases australian cases reiterate that life, limb and liberty need not be threatened or at stake. yet again nullity is granted where clear threats or physical force, kidnapping or false imprisonment and the like exist. cases where these are not present, yet nullity is granted, are elusive.54 in the marriage of s55 is cited as leading authority. ms s arrived in australia with her family from egypt. at 16, she married in a coptic orthodox church. her evidence was that the marriage took place against her will, under parental pressure: “... right up to the time of the ceremony i still did not want to go through with it. my parents … insisted i go through with it and i could not stand up against them.”56 watson j held she was “caught in a psychological prison of family loyalty, parental concern, sibling responsibility, religious commitment and a culture [demanding] filial obedience” and, if having “no consenting will”, it was “because these matters were operative – not threats, violence, imprisonment or psychological constraint”. 57 referring to scott v sebright and cooper (falsely called crane) v crane,58 watson j said the emphasis in some judgments “on fear and terror … seems unnecessarily limiting” because: “a sense of mental oppression can be generated by causes other than fear or terror. if … circumstances … taken together lead to the conclusion that because of oppression a particular person has not exercised a voluntary consent to a marriage, that consent is vitiated by duress and is not a real consent. this is so howsoever the oppression arises and irrespective of the motivation or propriety of any person solely or partially responsible for the oppression.”59 54 see further ‘culture, force and fraud’, re nagri & chapal [2012] famca 464 (1 june 2012). 55 (1980) 42 flr 94. 56 ibid 98-99. 57 ibid 103. 58 (1981) p 369. 59 in the marriage of s, (ibid (n 55)) 104. 74 the denning law journal the effect of oppression on the individual’s mind, not the form of oppression (whether constraint, threat or otherwise), “should be the operative factor” and: “… i cannot see how i can read down the natural and ordinary meaning of “duress” as equated to oppression or “coercion” to such a degree that there is to be no annulment where the lack of real consent arises from non-violent but nevertheless controlling parental coercion.”60 not insignificantly, ms s was 16 at the time of the marriage, economically dependent upon and living at home with her parents, paralleling hirani. even if ms s were not orally threatened with being evicted from the family home and disowned, this was at least implicit. thus in practical terms the scott v sebright approach persists. if this were not so, reported grants of nullity on the basis of religious and cultural imposition or pressure and filial duty without additional pressures such as economic dependency would be in evidence. in referring as it does to oppression as interfering with “voluntary consent” in the marriage of s endeavours to position duress in a context admitting of imposition comprehending more than narrow notions of force or threat of force. yet cases citing in the marriage of s ultimately generally rely upon far greater explication of coercion or duress, often continuing to refer to scott v sebright and cooper v crane.61 take, for example, zoumaris & paradisio.62 the facts properly led to a refusal of nullity. however, despite giving a nod to in the marriage of s, burr j said: “duress requires the consent of one party to have been obtained by force or threat of force. it is not sufficient for the strong will of one to have imposed on the will of a weak or impressionable character …”63 this recurs time and again, with duress or coercion applied by reference to physical or threated physical assault or constraint including 60 ibid. 61 see further on cooper v crane (ibid n 58) under fraud, supra. 62 [2008] famca 688 (1 august 2008). 63 ibid [24]. 75 human rights, ‘arranged’ marriages and family law kidnapping or false imprisonment (often with passport confiscation), similar threats, or threats of parental suicide – as in hirani.64 kreet & sampir65 is typical. ms kreet was born in australia. her parents came to australia from india, remaining “closely connected to [that] country’s culture … strict in that regard and … strongly against much of australian culture.”66 ms kreet could not cut her hair or wear skirts or dresses apart from school uniform. then: • meeting mr u through social media, she concealed the relationship from her parents until a year later. unhappy, her parents said she could not marry mr u, demanding she cease that contact and threatening an arranged marriage for her in india if she refused. mr kreet kept her from school, confiscated her mobile phone, and stopped her internet access. • the relationship continued. ms kreet’s father said he was considering wedding proposals notified to him by her indian uncle and, once 18, she would go to india with him for an arranged marriage and “appropriate suitor”. • following november 2008 final examinations, ms kreet removed to melbourne to live with mr u. her parents reported her as “missing”, repeatedly telephoning her to persuade her return. her statutory declaration ended the police investigation, confirming she was in melbourne of her own free will. her parents travelled to melbourne, advising her that once 18 she could marry mr u. he and ms kreet participated in an “engagement ceremony” in ms kreet’s parent’s presence, which ms kreet termed a “proclamation in front of god”67 that she would marry mr u. • back in sydney, ms kreet was assailed by her parents’ efforts to persuade her to end the relationship with mr u. mr kreet made 64 rees j in tirta & lim [2012] famca 63 (23 february 2012) sees “difficulty [as arising] in the past … where, for example, the other party had threatened to commit suicide”: 6. a suicide threat by the other party was not accepted as duress in kecskemethy (otherwise magyar) v magyar (1961) 2 flr 437 where he showed the putative marriage partner bloody clothing as ‘evidence’. the threat occurred sometime before the marriage; however ms kecskemethy said fear for mr magyar’s life was continuing, motivating her consent. 65 [2011] famca 22. 66 ibid [9]. 67 ibid [15]. 76 the denning law journal direct threats to mr u that he would kidnap and rape mr u’s mother and sisters. in early 2009, he slapped his daughter’s face on two occasions and struck her on the back. ms kreet returned to melbourne, advising police that she was living with mr u freely. • ms kreet’s parents flew to melbourne, persuading her to return to sydney. apologising and asking her to forgive them, they offered a “proper wedding” to mr u in india for her eighteenth birthday. mr u went to sydney to discuss wedding plans. ms kreet agreed to a traditional wedding with mr u in india. • in india, her parents confiscated ms kreet’s passport, denied her telephone rights with mr u, and concluded discussions about “suitable husbands” by providing one whereupon ms kreet’s refusal was met with mr kreet’s repeated threat to rape and kidnap mr u.’s mother and sisters. • thus arranged, the marriage went ahead. again, coercion or duress included physical assault, confinement and threats. notably, too, the applicant/petitioner’s youth is a central feature. this and the risk of economic survival parallels hirani and in the marriage of s. hence the question whether more than lip service is paid to filial duty, cultural imposition and religious factors in arranged marriages. what of these factors in fraud and arranged marriage? fraud and consent – moss v moss fraud nullity cases return to moss v moss (otherwise archer),68 scott v sebright and cooper (falsely called crane) v crane. post-dating them, australian, english and fijian statutory provisions set out explicitly some circumstances these authorities discuss under fraud generally. the insight provided is instructive. involving pregnancy concealed at time of marriage, in moss fraud is considered in two aspects: • impersonation leading a party to marry another, not realising that that other is not the actual person (physical person) s/he believes is the contracting party; and 68 [1897] p 263. 77 human rights, ‘arranged’ marriages and family law • deliberate inducement of a person with a disability – expressed as “feeble minded” – to marry. mr moss married, not at the time (fully) realising his bride was pregnant to another man. ms archer, the bride, hid this from mr moss. originally meeting when both were in service, ms archer and mr moss re-met in 1895, thereafter seeing one another occasionally. in mid-1896 at her father’s house, she “pressed” mr moss to marry her. he agreed. later that year, at the wedding, his “suspicions for the first time aroused”, mr moss “taxed [her] with being pregnant”.69 she denied it. a week or so later, confessing to the pregnancy, ms archer (now moss) alleged the putative father had seduced her. mr moss left. a month later, the child was born. the court accepted that at the time of marriage mr moss “did not know of his wife’s condition”, having “no grounds” for inquiring “as to her character”70. counsel “for” pregnancy concealment as fraud vitiating consent contended:71 • no english court decision addressed a prospective wife’s concealment of pregnancy from the intended husband at time of marriage as a nullity ground; • nonetheless the facts fell “within the principle of law [avoiding] a contract on the ground that consent of [a party was] obtained by fraud”; • a marriage contact’s validity is “dependent upon the same considerations” as any other contract’s validity, to be “tested in the same way”; • both parties’ consent is mandatory, being consent with “knowledge on their part of all material facts”; • “a material fact was suppressed” by the intending wife; • her conduct was a fraud on the husband, any child born in wedlock being presumed his, requiring him to “support another man’s child”; • pregnancy at time of marriage “rendered [ms archer] incapable … of bearing a child to her husband” at that time and, through concealment, was a fraud on “essentials of the marriage relation”; • us authority establishes by reynolds v reynolds72 “clear law that concealed pregnancy is a ground of nullity”, and by donovan v 69 ibid 265. 70 ibid 266. 71 ibid 266-267. 78 the denning law journal donovan73 that a wife’s “express representation of chastity” before marriage is unnecessary. counsel contesting fraud said:74 • all essentials of a valid marriage contract were present – intelligent consent, free agency, complete age and physical capacity, and statutory compliance; • fraud is a ground for nullity only where “of such a nature as to be inconsistent with the idea of … a real and intelligent consent” by a party; • although based on the parties’ contract, marriage “is not merely a contract in the ordinary legal sense of the term”, as creating a status: niboyet v niboyet75 per brett, lj; sottomayer v de barros,76 per lord hannen; • the wife being “under the circumstances incapable of bearing children to her husband” is countered, this being “at most a temporary disability”; • the us decisions conflict with english law and should not be followed. jeune p refused nullity: lacking precedent it “would be impossible … , at the present day” to endorse a principle “of such importance and so farreaching.”77 on identity fraud, he cited swift v kelly78: absent explicit statutory provisions “requiring certain things to be done in a specific manner”, a marriage contracted on false representations, where “but for such contrivances, consent never would have been obtained” could not be held void: “unless the party imposed upon has been deceived as to the person, … thus [giving] no consent at all, there is no degree of 72 85 mass (3 allen) 6-05 (1892). 73 91 mass (9 allen) 140 (1864). 74 moss (ibid (n 68)) 265. 75 (1815) 3 m&s 537. 76 (1879) 5 pd 94, 101. 77 moss (ibid (n 68)) 267. 78 (1835) 3 knapp 257. 79 human rights, ‘arranged’ marriages and family law deception which can be available to set aside a contract of marriage knowingly made.”79 marriage contracts were distinguished from ordinary commercial contracts, marriage being “a civil contract and a religious vow” parties are not entitled to dissolve of their own volition.80 this tends to munby j’s public interest or public policy argument in ns v mi. moss limits (in ways applicable neither to the australian, fiji nor current uk position) the grounds upon which marriage can be annulled. setting this out in detail is essential to understanding fraud in present law, consistent with relevant statutory provisions. in moss, jeune p pinpointed the need for: • both parties’ voluntary consent; • compliance with legal requirements of publication and solemnisation, so far as law deems essential; • no incapacity in parties either by age, physical capacity or relationship by blood or marriage. he said failure in those respects, but (he believed) in no others served to render a marriage void or voidable: “it has been repeatedly stated that a marriage may be declared null on the ground of fraud or duress. but, on examination, it will be found that it is only a way of amplifying the proposition long ago laid down … that the voluntary consent of the parties is required.”81 as with any other contract, duress in marriage contracts is, jeune p said, “an absence of a consenting will”, and with fraud, this “does not include such fraud as induces a consent, but is limited to [that procuring] the appearance without the reality of consent”:82 • the most simple instance is personation, or as per lord ellenborough in rex v burton-on-trent83, adopting another name for concealment vis-a-vis the putative marriage partner; or 79 ibid 293. 80 moss (ibid (n 68)) 267. 81 moss (ibid (n 68)) 268, citing fulwood’s case (1638) cro car 482, 488, 493. 82 ibid (n 68). 83 (1869) 3 m&s 537. 80 the denning law journal • taking advantage of a “weak” though not “absolutely insane” mind to induce entry into a contract despite a party’s lack of understanding: portsmouth v portsmouth84, harrod v harrod.85 in all cases where fraud constitutes a marriage nullity ground indicates procurement of agreement by form without substance. annulment flows not because fraud is present, but because consent is absent: “this is illustrated by the imaginary case suggested … in reg v mills86 of a mock marriage in a masquerade where the kind of result … fraud might have produced would be produced by mistake. [there], there would be no fraud, but for want of real consent the marriage would be declared void. but when there is consent no fraud inducing that consent is material.”87 referring to wakefield v mackay88 jeune p noted similar, more recent cases where error as to family or fortune procured by “disingenuous representation” cannot contradict marriage validity, for “no disparity of fortune or mistake [of] qualities of the person” can impeach “the vinculum of marriage”:89 “the strongest case [established] of the most deliberate plot, leading to a marriage the most unseemly in all disproportions of rank, of fortune, of habits of life, and even of age itself, would not [release] from claims which though forged by others, he had riveted on himself. if he is capable of consent and has consented, the law does not ask how the consent has been induced.”90 scott v sebright is often cited for a broader nullity concept. this moss explains as a misreading: it was “a case of deception and force acting on a weakened mind”, simply establishing that for marriage, as for other contracts, fraud and duress may “render an apparent consent in truth no 84 1 hagg ecc 355. 85 (1854) 1 k&j 4. 86 (1844) 10 cl&f 534, 785. 87 moss (n 68) 268-69. 88 1 phillim 134, n 137. 89 moss (ibid (n 68)) 269 citing ewing v whatley 2 hagg cons 175, 183. 90 moss (ibid (n 68)) 269-270 citing sullivan v sullivan (1818) 2 hagg cons 283, 284. 81 human rights, ‘arranged’ marriages and family law consent at all”.91 moss thus seeks to establish within its own parameters what was said in scott v sebright, namely that courts refuse to “recognise as binding contacts [where] consent of either party [is] obtained by fraud or duress”, and the validity of a contract of marriage must be tested and determined in precisely the same manner as that of any other contract.92 what then of the statutory provisions? fraud and consent by statute moss says marriage can be annulled only where there is no consent: however or by whatever means induced, consent makes a marriage valid. statute law puts it differently. the matrimonial causes act (ew) diverges from the family law act (fiji) and marriage act (cth), which explicitly include “fraud”. however, the ew act refers to “valid consent”, listing all matters for a void or voidable determination. the australian and fiji acts refer to “consent” that is “not a real consent”, listing specifics: s 32(2) (d), s 23b (1)(d) the distinction matters. first, to moss where nullity must be based on: • no incapacity in the parties to marry – including age, physical capability or relationship by blood or marriage; • no absence of a consenting will; • fraud limited to that procuring an appearance of consent, without reality, including: o personation; o assumed name for concealment from putative partner; o advantage taken of a mind “not absolutely insane, but weak”, to induce entry into a contract the party “did not understand”; o procuring form without substance of agreement not by fraud, but by absence of consent (citing personation, assuming a name, taking advantage of a weak mind); o mock marriage or masquerade.93 frauds not qualifying for nullity include: • disparity of fortune or mistake as to the person’s qualities; 91 moss (ibid (n 68)) 270. 92 moss (ibid (n 68)) 270-71. 93 moss (ibid (n 68)) 268-69. 82 the denning law journal • a “most deliberate plot, leading to marriage most unseemly in disproportion of rank, fortune, habits of life, even age”.94 then to statute law. in australia and fiji, those matters specified by moss are covered explicitly: • identity mistake; • nature of the ceremony mistake; • mental incapacity as to understanding nature and effect of the ceremony: s 32(2)(d)(ii)(iii) fiji, s 23b(1)(c)(ii)(iii) australia as fraud remains a separate head (s 32(2)(d)(i) family law act (fiji), s 23b(1)(d)(i) marriage act (cth), it must have a meaning beyond these. the family law act (ew) references unsoundness of mind, mistake, venereal disease, pregnancy and gender identity. are the listed matters intended to be exhaustive? fraud could come under “otherwise”: that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise: s 129(c) the question is what are “fraud” (in australia and fiji) and “otherwise” (ew) designed to cover? in australia, in the marriage of nemer osman husband and oula mourrali wife suit95 refers to moss and deniz and deniz.96 in deniz, a turkish national accepted by the court as lacking any intention whatsoever of cohabiting, persuaded an australian schoolgirl of lebanese descent to marry him, aiming solely to secure permanent residency. holding fraud not to be limited to identity or nature of the ceremony, the court granted the annulment. a distinction was drawn between consent gained through a fraudulent representation by the respondent as to living with an applicant as husband and wife as opposed to a fraudulent representation that the respondent had riches, good-looks, virtue, health or any such “inducing equality”. osman v mourrali97 and otway and otway98 rejected deniz, conforming to the traditional view. yet that cannot be right: with 94 moss (ibid (n 68)) 269-70. 95 [1989] famca 78 (17 november 1989), (1990) flc ¶92-111. 96 (1977) flc ¶90-252. 97 [1989] famca 78 (17 november 1989), (1990) flc ¶92-111. 83 human rights, ‘arranged’ marriages and family law “identity” and “nature of the ceremony” explicitly covered under section 23, that would render otiose the explicit reference to fraud. nevertheless, fiji initially adopted the same approach. in mpl v jsg99 pulea cj refused a nullity application where an arranged marriage was initiated by jsg’s father. asking whether jsc had married previously and “[is] there anything i won’t be happy with?” mpl’s father was told jsg had never married and “my son is very good and that is why i came and asked for your daughter’s hand”.100 within two weeks of completed marriage negotiations the parties married. the husband then returned to aotearoa/new zealand, mpl and her family in fiji hearing nothing more from him. by telephone, the fathers planned the traditional religious wedding. then, according to mpl’s father: “[jsg’s father] called me … and i was preparing everything as it was coming near to … the ceremonial wedding and he said: ‘i have some bad news …’ he said: ‘why can’t you shift the marriage.’ i asked … why and he told me his son was involved in a drug case and ‘he takes drugs a lot. he is not staying with me anymore… he does not listen to [me].’”101 the drug problem arose at no time during marriage negotiations or on the wedding day, with repeated assurance of jsg’s being “a good boy and hard working. he will look after your daughter very well …”102 arguing fraud under s 32(2)(d)(i), mpl’s father said consent would never have been given, had the drug problem been known. relying on moss, in the marriage of hosking, rg and hosking, jh103 and osman and mourrali, pulea j refused nullity, observing that in each case the basis for declaring marriage “null” for fraud does not include fraud inducing consent. citing hosking and moss she said fraudulent misrepresentations of the quality of a person or future intentions “have never been regarded as sufficient to annul a marriage.”104 observing that, “consent and fraud” principles being “grounded in a long list of authorities” and having “developed over the years.” pulea j said there should be no extension to “deliberate withholding of 98 (1977) flc ¶90-807. 99 fhc case no. 1182/2006 (15 february 2007). 100 ibid 2. 101 ibid 4. 102 ibid 4. 103 [1994] famca 87, (1995) fc ¶92-579. 104 mpl v jsg (ibid (n 99)) 11. 84 the denning law journal information [here, the] drug problem and misrepresentation.”105 the alternative “would appear to be so wide as to cover any situation [involving] lack of information of the conduct, character and circumstances” of a putative partner.106 echoing jeune p in moss she said that introducing “a new principle not resident on any sound basis” would prompt development “in several directions, [giving] rise to many doubts and much confusion.”107 albeit sympathising with mpl, pulea j said nullity fraud did not include misrepresentation and concealed misconduct: “in swift v kelly (1835) knapp 257 the court held: ‘… no marriage shall be held void merely upon proof that it had been contacted upon false representations and that for such contrivances, consent would never have been obtained.’ in hosking v hosking (1995), p. 81,750, the court concluded that the term ‘fraud’ as it appears in s. 23b (1) (d) of the marriage act [1961] (cth) has a fairly limited scope. its concern is with fraud as to the identity of the other party or as to the nature of the ceremony, and not to the motives of a party in entering into the marriage.”108 yet motive is not the issue. section 32(2) (d) (i) is directed to what, when “consenting,” is the mind of the person alleging fraud, and the nature of that fraud. all manner of matters may be the subject of pretence or misunderstanding, misrepresentation or mistake and lack of meeting of minds when parties court and marry. all cannot go to fraud within the meaning of s 32(2) (d) (i) and its australian equivalent. however, some may. cases are inconsistent. courts in england and wales and australia (as in the us – see moss) vary in approach. sullivan v sullivan (falsely called oldacre)109 lists “fraud” not vitiating marital consent: (false) representations of money – or exaggerating the prospective partner’s wealth, (mis)representing class or status, concealing a drug or drink habit. these may distress the party discovering the truth after marriage; however none goes directly to appurtenances of marriage. similarly, assurances that an intended marriage partner is “a good boy” (or “man”). 105 mpl v jsg (ibid (n 99)). 106 mpl v jsg (ibid (n 99)). 107 mpl v jsg (ibid (n 99)) 11-12. 108 mpl v jsg (ibid (n 99)) 12. 109 (1818) 2 hag con 238, 161 er 728, (1807) 3 m&s 265n, 105 er 610. 85 human rights, ‘arranged’ marriages and family law australia swings between a narrow and more liberal view, some obvious in outcome, some less so. in the marriage of otway ej and otway, g110 is clear-cut. four days after the wedding, ms otway acknowledged she had married only because the man she truly wanted to marry had said he wanted a de facto relationship. after two and a half years, ms otway followed that man interstate, eventually living with him. applying for nullity, mr otway argued she had wanted australian residency to remain australia and resume her relationship with the other man. fraud was ruled out. each had consented freely, despite ms otway’s ulterior design unknown to mr otway at the wedding. there was no mistaken identity or mistake as to the ceremony or meaning of marriage. most significantly, having lived as husband and wife, presenting as married and undertaking “couple” activities for 2½ years, it was “drawing a long bow to contend the marriage could be annulled by fraud”.111 mr otway’s route was dissolution. in osman and mourrali,112 mr osman said, after the ceremony: “i don’t want to marry you, the whole purpose of the marriage contract was to obtain residency.”113 one month later, he emphasised to ms mourrali’s mother that he did not wish to marry ms mourrali. then by telephone he was alleged to have said to ms mourrali’s mother that he was “no longer interested in marrying her daughter because he had ‘legal residence’”.114 mr osman admitted that conversation, saying he had said he no longer wished to marry ms mourrali however he was angry when ms mourrali’s mother abused him. he claimed the marriage ended because ms mourrali assumed he was far wealthier and, discovering her mistake, she “lost interest in the marriage and would not proceed.”115 nygh j reviewed the history and principles of nullity fraud. canvassing fellow judges, he found immigration fraud applications to be “relatively common”, some annulments being granted, others refused when judges followed the “traditional view”. nygh j acknowledged having once granted an undefended application, saying he stressed at the time that light of there having been no argument, this should not be seen as a precedent for: 110 (1987) flc ¶91-807l. 111 ibid. 112 [1989] famca 78 (17 november 1989), (1990) flc ¶92-111. 113 ibid 77,741. 114 ibid. the references to ‘marry’ here are discussed further under ‘duress and fraud in forced and “arranged” marriage’, supra. 115 ibid 77,741. 86 the denning law journal “…[i]f a person wishes to go through a ceremony of marriage with [one] whose identity he or she is aware of, then it matters not that that consent is induced by promises of eternal happiness, luxurious living or even the promise to live together for ever after. for, if … a marriage could be annulled on the ground that a party was defrauded as to the intention to cohabit, where should the court draw the line? love and affection are also regarded as essential to a marriage at least in the twentieth century: would lack of love base an application for annulment? again, the production of offspring is a traditional concern of marriage, would a deception as to the intention to bear them or procreate them found an application? where does one draw the line between attributes such as wealth, virtue, beauty or potency on the one hand and the fundamentals of marriage such as cohabitation, mutual love and support and the procreation of children of the parties?”116 noting the english approach, inherited by australia, where marriage would be valid despite neither party’s intending to cohabit, he located in inheritance, property and “dynastic relationships” this “peculiarity” of english law not existing elsewhere in the world: “[a] distinguished historical line of englishmen from the monarch downwards would have been loath to have their marriages annulled if an intention to cohabit had been of the essence! if cohabitation is not of the essence where neither party desires it, how can it then become of the essence if only one party seeks it?”117 nygh j relied also on changing social mores. he said changes to divorce “strengthened” the decision to refuse nullity, for annulment had “some attractions” when divorce was “difficult” and viewed as “socially shameful”. now, with dissolution following one year’s separation without any investigation “nor guilt” produces no stigma. being so easily established, had she sought divorce ms osman “would have been relieved far more expeditiously and cheaply from her bonds some time ago.”118 yet just as pulea j’s reference to “motive” was misplaced, so too with nygh j: the issue is not changing social mores or shame removed from divorce. the question is whether or not there is fraud interfering with the 116 ibid77,742-77,743. 117 ibid 77,743. 118 ibid 77,743-744. 87 human rights, ‘arranged’ marriages and family law reality of consent. this rests upon the particular facts of the particular case, and all the circumstances. fraud in forced and ‘arranged’ marriages in australia, dispute revolves around deniz, which has created a line of authority generally departing from it. statute law, deniz held, excluded ecclesiastical principles limiting fraud to identity or the nature of the ceremony. osman and mourrali criticised this. yet the critique is difficult to fathom in light of the legislation. the court in deniz said fraud in the matrimonial causes act and its successors, the family law act and marriage act, must mean something more than duress. otherwise it constitutes “mere surplusage” lacking effective meaning.119 osman and mourrali responded with a resounding “no”.120 in the marriage of otway endeavoured to address the problem by asserting that the marriage act provisions did “little more” than put into “statutory form” the law as “then understood”, without liberalising or expanding the meaning of fraud.121 the court contended that retaining fraud whilst explicitly referring to mistake as to identity and the nature or effect of the ceremony was simply a clarification of the reality that an “innocent” as well as a “fraudulent” mistake could result in the “relevant” lack of consent to a marriage. yet why does the legislation not say so? both types of mistake are left open as to “innocence” or “deceit”, meaning that under the marriage act (cth) s 23b(ii) and (iii) a court could include either innocent or duplicitous concealment on the part of a party. if the intention is to cover both, again there is no need for retaining fraud in s 23b(i). legislative interpretation matters. as well as ignoring the existence of fraud as a head separate from questions of identity and nature or effect of the ceremony, or accepting the attempted distinction made in in the marriage of otway, osman and mourrali and its followers ignore “or” in s 23b(1)(d)(i) – “duress or fraud” – collapsing duress and fraud or making fraud hang upon some element or elements of duress. the contention is that somehow fraud and duress should be considered together, or are part and parcel of one way (rather than two ways) annulment may be recognised, or consent seen as inoperative or invalid. yet “or” has legislative interpretation on its side as 119 (1977) flc ¶90-252. 120 [1989] famca 78 (17 november 1989), (1990) flc ¶92-111 at 76, 354. 121 (1818) 2 hag con 238, 161 er 728, (1807) 3 m&s 265n, 105 er 610.what the court meant by ‘little more’ rather than ‘only’ remains unexplained. 88 the denning law journal creating or indicating alternatives. it also confirms a parliamentary intention to introduce a disjunction: fraud is not limited by duress. fraud and duress are independent or separate heads by reference to which annulment can be determined and upon which it can be founded. ignoring s. 23b(1)(i) fraud completely by saying it is limited to s 23b(d)(ii) or (iii) situations is equally wrong. in deniz the court sought to adumbrate possible instances of fraud vitiating consent, applying a secular and contemporary perspective. hence the approach was similar to that in sullivan although pointing to the positive – what is fraud, rather than to the negative – what is not fraud. the court acknowledged a lack of reported cases, concluding an apparent reluctance to set down principles or guidelines may arise from perceived difficulty in providing “proper safeguards”: “for instance, there would be general consternation if an application was granted on the basis of fraud by reason of one party deceiving the other as to being possessed of natural teeth. the case of the person who marries to gain money, rank or title as distinct from the more usually professed reasons would also cause concern. clearly the fraud relied on must be one which goes to the root of the marriage contract.”122 quite rightly, it cannot be up to individual participants to decide what goes “to the root of the marriage contact.” this must be determined by courts referable to legislation and parliamentary debates. deniz applied to the specific facts and recognised the need to interpret “fraud” consistent with safeguards against fanciful or inappropriate claims.123 nygh j’s examples in osman and mourrali – along with those of sullivan and the deniz natural teeth example – of what is not fraud can be endorsed without accepting as impossible devising a pattern or principle founding what can constitute fraud. this does not mean individual idiosyncrasies are indulged. it does mean general acceptance of appurtenances of marriage are recognised. impotence appears explicitly in the uk legislation: s 12(a) – applying to both male and female incapacity – although absent a requirement for concealment at the time of marriage. hence, the uk could be seen as moving away from the fraud proposition altogether – although what 122 [1989] famca 78 (17 november 1989), (1990) flc ¶92-111 at 76,354-355 (emphasis added). 123 ibid. 89 human rights, ‘arranged’ marriages and family law “otherwise” means in “duress, mistake, unsoundness of mind or otherwise” continues to require explanation. in ad and vvp124and kn and eg125 the fiji family court canvassed fraud in nullity applications where the husband was impotent at time of marriage, not disclosing it, and the wife would not have married him had she known. in both instances, nullity was granted.126 as there recognised, marriage is not “all about” sexual relations or childbearing. equally certain, generally these are part of marriage. people can and do marry without childbearing intentions even when of childbearing age. people can and do marry without intending sexual relations.127 yet this cannot render childbearing and sexual connection irrelevant to marriage or not a part of the generally accepted marriage relation. hence, if a person marries knowing of his impotence or infertility and concealing it, this should come within fraud as a basis for nullity. similarly with vaginismus or infertility on a putative wife’s part. returning then to forced and arranged marriages, just as the meaning of “duress” in both can be questioned, is there a role for fraud? in quila wilson lj saw culture as sanctifying arranged marriages and somehow making consent to marriage real. should culture be recognised in precisely the opposite way, however as denying capacity to give free and full consent? duress and fraud in forced and ‘arranged’ marriage nygh j dealt with osman and mourrali as immigration fraud. however, a knowledge of muslim and hindu practice is essential for understanding the evidence and analysing the case as (possible) fraud under the family law act (fiji) and marriage act (cth). what the husband said after the (civil) ceremony was: 124 hcfc 0072/2007, 8 february 2008 (scutt cj). 125 hcfc 0029/2008, 12 may 2008 (scutt cj). 126 the current writer was chief judge of the family court division of the high court of fiji with sole jurisdiction in relation to nullity applications. 127 george bernard shaw and his wife charlotte payne-townshend married with agreement on these terms: michael holroyd, bernard shaw: a biography (vintage/random house, london, 1998). 90 the denning law journal “i don’t want to marry you, the whole purpose of the marriage contact was to obtain residency. i am no longer interested in marrying your daughter because i have legal residence.”128 in fiji, hindu and muslim practice has the civil marriage occurring first – parties often describing this as “engagement”. then a religious or traditional ceremony – muslim or hindu – joins parties, and within their culture they are accepted as married. only after the second ceremony do parties consummate marriage and live as husband and wife. this is, generally, traditional hindu and muslim practice in australia and the uk as the cases show. the evidence in osman and mourrali confirms this pattern: the parties went through the (civil) marriage ceremony, then (according to the evidence, although mr osman disputed this) mr osman refused to go through the religious or traditional ceremony: “i don’t want to marry you …”. “i am no longer interested in marrying …” arguably referring to the traditional or religious ceremony, a denial of intention to go through that second step, essential to make marriage “real” for ms mourrali. mr osman did not need this, as civil marriage gained him the immigration status he sought. yet the understanding of ms mourrali and her mother was that the religious or traditional ceremony would follow. this was the basis upon which consent to the civil ceremony was given. thus analysed (that is, cognisant of the cultural background) the immigration issue was motive, hence properly not the basis for fraud. the basis for fraud was the husband’s deception as to his intention to marry ms osman according to religious or traditional practice. she married him – gave her consent to the civil ceremony – solely on the basis that she and he would then be joined through the religious or traditional ceremony. until that time, they would not – and indeed did not live as husband and wife for, according to religious or traditional practice, they were not husband and wife. this is not to ignore the key factor of legal marriage as the only marriage recognised in law, whether in australia, fiji or the uk. religious marriage would not make the parties married according to australian, fijian or england and waleslaw. but the parties would not have been married in accordance with england and wales, australian or fiji law (that is, civilly) – except for the representation, relied upon by the 128 [1989] famca 78 (17 november 1989), (1990) flc ¶92-111.at 77,741.the references to ‘marry’ need to be understood as referring to the religious ceremony that ordinarily follows, or is expected to follow, the civil (legal) ceremony in traditional muslim and hindu culture. 91 human rights, ‘arranged’ marriages and family law wife (and her mother) that the religious or traditional ceremony would go ahead. this is a clear fraud within the context of family law – if fraud is to be given meaning in the marriage act (cth) s 23b(1)(d)(i) and s 32(2)(d)(i); it could also come under “otherwise” in s 12(d). nygh j’s notion that dissolution of marriage being so uncomplicated, its requirements easily complied with, ignores the existence of nullity by fraud in australian law. parliament intends parties to have rightful access to nullity. parties are entitled to be heard on that basis. spurious and fanciful cases should not be entertained as fraud. however, osman v mourrali discloses no basis upon which assertions of fancifulness or spuriousness can be suggested fairly. the substance of the evidence was that mr osman clearly misled ms mourrali. his motive for misleading her is, as noted, not the issue. rather, it is what went on in ms osman’s head at the time of the civil ceremony and her position vis-à-vis marriage. she would not have married – would not have consented to the (civil) marriage, if she had not believed or expected, upon the representations of mr mourrali – that she would be married in the eyes of her faith and tradition or culture – through the religious or traditional ceremony. hence, her consent, though given, was given by reason of fraud. without the religious or traditional ceremony, ms osman was caught in limbo: she would not live with mr mourrali (even had he wanted her to) because of her faith, tradition and culture. she could not marry anyone else – as in law, she was married. this is precisely the sort of situation fraud is intended to encompass and nullity is intended to resolve. turning then to duress. in nagri and chapal129 mr nagri claimed duress. he was 25 years at the time of the marriage. the age difference between mr nagri and ms s in in the marriage of s – she being a minor, he having reached the age of majority some years before marriage was referred to explicitly by the court. nonetheless, nullity was granted, the court saying: “… i am satisfied that in this case, because of the relationship between [mr nagri] and his uncle, [mr nagri] was, at the time of the marriage, the subject of strong feelings of family loyalty. i am satisfied that he accepted his uncle as standing in loco parentis. he was subject to religious and cultural beliefs. he believed that his situation was one where his uncle was entitled to demand his obedience.”130 129 (2012) famca 464 (1 june 2012). 130 ibid [27]. 92 the denning law journal mr nagri and ms chapal (who did not oppose the application albeit her evidence was that she was a fully and freely consenting party) were born in india, a year apart. mr nagri arrived in australia with his mother in 2008, financially supported by his uncle, mr s, who financially supported and posted a bond for him, giving him employment and financial assistance. in about august 2011, mr s told mr nagri of finding a “girl” whom he (mr s) thought mr nagri should marry. when the parties met in september, mr nagri’s mother and uncle had decided on the marriage. mr nagri attempted to tell his uncle in october that he loved another and did not wish to marry ms chapal. mr s said “it would be impossible at that stage that the marriage not occur” and the marriage “must proceed” as “arrangements” had been made and he (mr s) had “given his word.”131 that month the roka (cultural engagement ceremony) ensued, mr nagri and ms chapal then signing relevant documents at a registry office, fixing a november date for the legal ceremony. on the november date, the parties performed the civil marriage ceremony. a month later mr nagri told ms chapal he had married under compulsion and a sense of duty to his family. he apologised unreservedly, asking her forgiveness and saying he had “acted badly”. he then refused to participate in the arranged hindu ceremony, telling his mother in particular that he had hurt ms chapal and would not go through with it. collier j referred to in the marriage of s and teves iii & campomayor,132 the latter simply as following the former. he noted mr nagri was economically dependent – or at least employment-dependent upon his uncle, however, the judgement principally relies upon family and cultural relationship and duty. mr s, said collier j, considered himself to be in a “pater familias” position or something “very similar”, believing he “had authority” and “almost absolute” authority over mr nagri: “it was [mr s – the uncle’s] wish that the marriage should go ahead. indeed, he was quite appalled when [mr nagri] suggested .... the marriage might not go further. he told his nephew that all the arrangements had been made. he particularly made it clear that he … would not go back on his word given to [ms chapal’s] family, that the marriage would take place …” 133 this judgment accepts the role duty and obeisance to family play and the power they have in (some) cultural settings. evidence from both mr s 131 ibid. 132 [1995] flc ¶92-578. 133 [1989] famca 78 (17 november 1989), (1990) flc ¶92-111 at [11-12]. 93 human rights, ‘arranged’ marriages and family law and mr nagri’s mother confirmed pressure, with mr s “prepared to acknowledge that his behaviour in this respect was such that it overbore the will of his nephew at the time the marriage was entered into”.134 this is somewhat consistent with the import of watson j’s determination in in the marriage of s in recognising that duress can arise out of oppression in the context of familial relationships and arranged marriages. “somewhat” because economic dependency is included as if duty and filial ties, tradition and culture are insufficient. cases in fiji over the period 2007-2009 recognised the import of tradition, culture, duty and filial obeisance without the need for bolstering, with a nod to economic dependency, this context and reality of pressure as coercion or duress. 135 after all, at 25 and having lived in australia for some four years, mr nagri could have sought alternative employment. however, duty and filial ties, tradition and culture stood in the way of his doing so. fiji decisions recognise this impact as, for example, in mir and nnj136 where the 31year-old applicant had lived overseas for ten years, returning to fiji twice during that time. his mother demanded his acquiescence to an arranged marriage. he complied, leaving ahead of the traditional or religious wedding. duress lay in duty, tradition, culture and filial obedience, where all his alternative supports and affiliations were abroad. his role as child to a widowed mother undermined his capacity to resist. rather than resort to economics, the impact of culture, tradition and religion on child-parent relations must be recognised fully. underpinning parental dominance, these factors do not disappear when a child becomes adult. inevitably, this raises a question as to munby j’s position in ns v mi, reliant on singer j’s reference in re sk137 to arranged marriage. whose culture, whose rights? in re sk singer j emphasised, saying it “always” needs to be emphasised, that forced marriage constitutes “a spectrum” ranging from “physical force” or “fear of injury or death in their most literal form”, through to the “undue imposition of emotional pressure … at the other end of the forced marriage range”, however: 134 ibid. 135 set by the present author as cj, nullity decisions have since followed this precedent. 136 famcas no 08/2007, 6 may 2008. 137 sk (an adult)(forced marriage: appropriate relief)[2005] 3 all er 421, [2004] ewhc 3202 (fam). 94 the denning law journal “… a grey area then separates unacceptable forced marriage and marriages arranged traditionally which are in no way to be condemned, but rather supported as a conventional concept in many societies. social expectations can of themselves impose emotional pressure and the grey area to which i have referred is where one may slip into the other: arranged may become forced but forced is always different from arranged.”138 yet being “supported as a conventional concept in many societies” cannot make arranged marriages fully and freely consenting. conventional concepts, after all, can be damaging to those obliged to conform to them. women’s struggle throughout the ages, in all societies, to surmount patriarchy bears testament to the fact that convention is dictated by those in power: those lacking power are obliged to conform, or rebel. annual un commission on the status of women conferences confirm that women seek to renounce conventional concepts imposed by tradition, religion or culture, demanding that their respective societies accept women as human, with human rights and entitlements. since the league of nations, international treaties have affirmed women’s struggle against conventions deemed acceptable by male-only and male-dominated parliaments and ruling bodies. singer j appears unmindful or unknowing of this struggle and its longevity. his obeisance to cultural diktats undermining women’s autonomy is indicative of a thread extolling cultural difference at the expense of women’s rights. this ignores, too, the icescr which, whilst affirming the importance of culture within societies simultaneously affirms the fundamental requirement that marriage must be a freely consented to relation. free consent is free consent to marriage – • free consent of the parties, not free consent of the parents of the parties, and • free consent to marriage, not “consent” to conform to culture or parental wishes. nullity cases time and again reveal that arranged marriages flout the “free consent to marriage” standard, despite lack of kidnapping, transportation to foreign soil, passport confiscation, threats of abuse 138 ibid [7]. 95 human rights, ‘arranged’ marriages and family law against the child or someone else. the demand is for daughters (sometimes sons) to conform to culture, religion, tradition, duty and parental wishes. daughters (sometimes sons) are obliged to “consent” to the marriage agreement we (your parents) make: “you’d better marry somebody we want you to …”, to paraphrase hirani. the evidence in mpl v jsg is telling. the father said that had he known of the prospective husband’s drug problem, “consent would never have been given”.139 the consent referred to is consent of the father to his daughter’s marriage to another man’s son. any consent the daughter was asserted to have exercised would be “consent” to her father’s wish that she marry the “partner” chosen by him. it is fanciful that free consent is given to marriage when parties have not met one another prior to arrival at the registry office, or have met only upon parental diktat. that culture says “meet at the registry office” (or on the wedding day, etc) cannot turn acquiescence into full and free consent to wed someone chosen and imposed by others. in fiji, many parents of indian origin are concerned that their children contract marriage with foreign nationals – often originally from fiji and holding australian, canadian or aotearoa/new zealand citizenship – by reason of the country’s political situation.140 that parents generally wish the best for their children in these circumstances cannot oust the requirement of free consent to marry in real rather than fanciful terms or in real terms as to marriage, rather than as to “agreeing” with parental wishes. it cannot transform parents’ agreement to a betrothal into the parties’ consent to wed one another – freely. this is not to impose western cultural views of marriage upon persons whose origins lie in other cultures. it is to say that full and free consent or free consent to marry means just that: full and free or free consent to marry a person whom a marital partner has chosen freely, rather than culturally imposed “consent” by filial, religious or traditional duty to the consent of a parent to a marital arrangement. this distinction is clearly recognised in sindh province, where “arranged” marriage of the type singer j sees as “marriages arranged traditionally which are in no way to be condemned, but rather supported …”141 are condemned by state law. as the sindh child marriage restraint act of 2013 provides: “under the law, any groom who weds a girl under age 18, and parents of such a groom or those facilitating such a marriage will 139 fhc case no. 1182/2006 (15 february 2007) at 11. 140 see for example kkc and psr (case no: 12lbs0006 (1 march 2013). 141 sk (an adult)(forced marriage: appropriate relief)[2005] 3 all er 421, [2004] ewhc 3202 (fam). 96 the denning law journal be punished with maximum three years, minimum two years, rigorous imprisonment, and a fine”. this is not simply about child marriage. it is about freedom to marry a partner of choice. so, returning to ns v mi142 munby j there spoke of stereotyping, citing his judgment in re k: “we must guard against the risk of stereotyping. we must be careful to ensure that our understandable concern to protect vulnerable children (or, indeed, vulnerable young adults) does not lead us to interfere inappropriately – and if inappropriately then unjustly – with families merely because they cleave, as this family does, to mores, to cultural beliefs, more or less different from what is familiar to those who view life from a purely euro-centric perspective.”143 in elevating “families”, munby j fails to recognise that not only european countries adhere to the proposition that “full and free” consent to marriage is a matter for prospective marital partners, not for “families”. international treaties and conventions – agreed to by nations way over and beyond those from europe or with european connections – do not refer to “full and free” consent by families, nor place family before the woman (or man) whose agreement to marriage is the issue. nor do european states or those with european connections alone recognise the right of prospective marriage partners – not their parents – to agree fully and freely to marriage. in seeking to be seen as culturally sensitive, ns v mi and re k apply stereotypes placing in the forefront patriarchal notions of what is right and proper for children, giving imprimatur to parental rights recognised by international treaties and conventions as wrong. 142 [2006] ewhc 1646 (fam). 143 ibid [37]. 97 human rights, “arranged” marriages and family law: should culture override or inform fraud and duress? abstract introduction england & wales cases a) is the legislative objective sufficiently important to justify limiting a fundamental right? b) are the measures designed to meet it rationally connected to it? c) are they no more than necessary to accomplish it? d) do they strike a fair balance between the rights of the individual and the interests of the community?9f albeit addressing immigration law, r (quila and another) v secretary of state is instructive when it comes to nullity of forced marriages. forced and arranged marriages nullity under statute consent, coercion, force and duress australian cases fraud and consent – moss v moss what then of the statutory provisions? fraud and consent by statute fraud in forced and ‘arranged’ marriages legislative interpretation matters. duress and fraud in forced and ‘arranged’ marriage whose culture, whose rights? the denning law journal 33 denning law journal 2007 vol 19 pp 33-68 capacity, moral responsibility and the criminal law james slater∗ introduction this article is concerned with the conflict between two theories of moral responsibility for wrongdoing, one of which i shall term the shallow capacity theory and the other the self-control theory. this conflict is of interest for two reasons. first, and fundamentally, it is important from the perspective of moral philosophy: in this regard, i will argue that the shallow capacity theory is incomplete, and as a result inferior to the self-control theory, which offers a complete account of moral responsibility for wrongdoing. secondly, given the criminal law’s interest in moral responsibility and blame, i will argue that the self-control theory offers two important insights for the criminal law, insights that the shallow capacity theory does not provide. first, it offers the most accurate understanding of the moral significance of killing under provocation, and thus the best framework for understanding the partial defence of provocation. secondly, it demonstrates that there is a need in the criminal law for a defence based on radical impairment of an agent’s capacity for selfcontrol, and in so doing offers a vital insight into the notion of a partial denial of moral responsibility. it should be noted that these insights for the criminal law emerge from those features of the self-control theory that make it superior to the shallow capacity theory as a theory of moral responsibility. this article will proceed as follows. in the first section, i will explain what i mean by moral responsibility for wrongdoing, and in so doing outline the important distinction between exemptions and excuses. in the second section, i will outline and contrast the shallow capacity and self-control theories, and in so doing describe the conflict between them. in the third and fourth sections, i will show how the shallow capacity theory suffers from two fundamental flaws, flaws not shared by the self-control theory. i will also explain the insights offered by the self-control theory for the criminal law in these sections. in the fourth section, i will conclude by offering some general comments on the conflict between the shallow capacity theory and the selfcontrol theory and how the debate can be taken further. ∗ ba (sussex), llm (harvard), phd (birmingham), lecturer in law, the university of buckingham. i am indebted to stephen shute, andrew simester, john gardner and susan edwards for their insightful comments on earlier drafts. capacity, moral responsibility and the criminal law 34 moral responsibility, exemption and excuse when i talk of moral responsibility for wrongdoing, i mean the necessary and sufficient conditions for entering the process of moral evaluation that may issue in the ascription of moral blame for wrongdoing. moral responsibility is therefore preliminary to the process of moral evaluation. whether blame is eventually allocated depends on that process of moral evaluation, so it is important to bear in mind that morally responsible wrongdoers are not necessarily blameworthy. thus moral responsibility explains how, why, and to what extent a wrongdoer is a legitimate object of the moral evaluation that precedes, and may issue in, the ascription of blame. the distinction between moral responsibility and the evaluation upon which the final allocation of blame depends means that exculpation for wrongdoing takes two forms.1 first, a wrongdoer may deny her moral responsibility. such an agent denies that she is, fully or partially, a legitimate object of the moral evaluation that precedes the allocation of blame. this exculpation will take the form of a full or partial exemption. as we will see below, examples of exemptions include insanity and infancy. the idea is that the insane and infants are exempt from the moral evaluation that can lead to the allocation of blame because they lack certain requirements necessary for that moral evaluation to make sense. secondly, a morally responsible wrongdoer may be able to exculpate herself by showing that she is not blameworthy within the terms of the moral evaluation. this will take the form of a full or partial excuse. i will argue below that anger-inducing provocation is best conceptualised as an excuse, because the exercise of the provoked wrongdoer’s capacity for self-control, the possession of which makes her morally responsible, is morally evaluated, and blame allocated when it is exercised poorly. to summarise, exemptions deny, fully or partially, the appropriateness of engaging in the moral evaluation that may issue in blame, whereas excuses accept that the wrongdoer is (more or less) a legitimate candidate for that 1 i am assuming that the wrongdoer is not justified. exculpation in the form of justification is the province of normative theory, whereas this paper is concerned with ascriptive theory. as joseph raz explains, “[n]ormative theory is primarily concerned with establishing what people ought to do”: practical reason and norms (oxford: oxford university press, 2nd edn, 1999) p 11. ascriptive theory, in contrast, is not concerned with what agents ought to do, but with the allocation of praise or blame to agents for doing, or not doing. as such, as john gardner points out, it does “not govern what should be done by anyone, but whether and how we should count what people have done when we are judging them”: “criminal law and the uses of theory: a reply to laing” (1994) 14 oxford journal of legal studies 217 at 220. the denning law journal 35 moral evaluation, but show that the ascription of blame is not appropriate, or not fully appropriate, as its conclusion. the shallow capacity theory and the selfcontrol theory the conflict between the shallow capacity theory and the self-control theory: a preliminary outline according to the shallow capacity theory, an agent will be morally responsible for her wrongdoing, and therefore a legitimate candidate for moral evaluation and the potential allocation of blame for that wrongdoing, if two requirements are satisfied. first, the agent must be the author of the wrongdoing. this means that the wrongdoing must spring from the agent in such a way that it belongs to her. secondly, the agent’s wrongdoing must be intelligible. this means it must emerge from the agent’s intelligible understanding of the pertinent factual and normative features of her situation. in contrast, the self-control theory holds that there is more to moral responsibility than authorship and intelligibility, though it accepts, with an important modification where authorship is concerned, that these are necessary features of moral responsibility. according to the self-control theory, the agent must not only have a capacity to act intelligibly: she must also possess a capacity to act in accordance with the reasons she deems best in light of her conception of the good. this capacity, which i call the capacity for self-control, includes a volitional element, by which i mean an active power for self-determination where action is concerned.2 possession of this capacity, according to the self-control theory, is a necessary condition of an agent’s moral responsibility. the shallow capacity theory explicitly rejects the need for the capacity for self-control. as far as the shallow capacity theory is concerned, an agent is morally responsible so long as she is a springboard for rational action: a volitional capacity to control action in light of better judgment is unnecessary. over the next three sub-sections, i will tease out the exact nature of this conflict as follows: first, i will examine in greater detail the shallow capacity’s requirements for authorship and intelligibility, and articulate the exemptions and excuses that flow from these requirements; second, i will describe in greater detail the capacity for self-control as required by the self 2 i am indebted to the work of r jay wallace for this notion of a volitional power over action: see, for example, “addiction as defect of the will: some philosophical reflections” (1999) 18 law and philosophy 621-624 and “three conceptions of rational agency” (1999) 2 ethical theory and moral practice 217-242. http://www.ingentaconnect.com/content/external-references?article=0167-5249(1999)18l.621[aid=5237139] http://www.ingentaconnect.com/content/external-references?article=1386-2820(1999)2l.217[aid=5094401] capacity, moral responsibility and the criminal law 36 control theory; third, i will describe where the two theories converge, and where, crucially, they part. the shallow capacity theory: a closer look as stated above, the shallow capacity has two, and only two, requirements in order for an agent to be morally responsible for her wrongdoing: first, the requirement that the agent be the author of the wrongdoing; second, the requirement that the wrongdoing be intelligible, that is to say based on a rational interpretation, and response to, the agent’s situation. the shallow capacity theory’s approach to authorship for wrongdoing is characterised by two features. first, the notion that the wrongdoing must be linked to the agent in such a way that it can be said that the wrongdoing springs from the agent in the required sense.3 thus one way an agent can be exempt from moral responsibility according to the shallow capacity theory is if this link between the agent and the wrongdoing is broken. this requirement explains the exculpatory effect of various phenomena grouped under the heading of automatism in anglo-american criminal law, such as bodily movements during a seizure, as these break the link between the agent and her wrongdoing. in such cases, the agent is not the author of the action: there is no connection between her values, beliefs, desires etc and her physical movements. the second feature of the shallow capacity’s approach to authorship is its refusal to compartmentalise the agent at the psychological level, with the result that all cognitive and emotional features of the agent constitute the agent, however transient they may be, or hidden from consciousness.4 the result is that wrongdoing that is in the required sense linked to those features is wrongdoing for which the agent is morally responsible.5 in the same vein, the agent cannot identify herself exclusively with her better judgment, and thereby deny moral responsibility for wrongdoing that is the product of weakness of will,6 or identify herself exclusively with her character, and thereby deny moral responsibility for wrongdoing that is out of character.7 3 eugene schlossberger moral responsibility and persons (philadelphia: temple university press, 1992) p 45. see also robert m adams “involuntary sins” (1985) 94 philosophical review 3 at 25. 4 schlossberger, ibid pp 34 and 44 and generally adams ibid. 5 schlossberger, ibid p 41, p 44 and p 67, adams, ibid, and andrew simester “can negligence be culpable” in jeremy horder (ed) oxford essays in jurisprudence 4th series (oxford: oxford university press, 2000) p 85, p 98. 6 schlossberger, ibid p 41 and p 67. 7 schlossberger, ibid p 44. http://www.ingentaconnect.com/content/external-references?article=0031-8108(1985)94l.3[aid=5084591] http://www.ingentaconnect.com/content/external-references?article=0031-8108(1985)94l.3[aid=5084591] the denning law journal 37 in addition to authorship, the shallow capacity theory also requires that the agent possess a fundamental capacity for rational action at the time of the wrongdoing, with the result that the wrongdoing is itself intelligible, even if morally deficient. thus, in addition to denials of authorship, an agent can deny her moral responsibility according to the shallow capacity theory by denying this capacity.8 the result is that the insane and infants are exempt from moral responsibility as they lack this core rational capacity. the shallow capacity theory also accepts that possession of this rational capacity is a matter of degree, and thus children of a certain age, whose rational capacity is partially developed, are, as a result, partially morally responsible.9 the reason why the shallow capacity theory can be characterised as shallow is because, once the agent is the author of her wrongdoing, there is only one further condition for moral responsibility: that the wrongdoing is intelligible. thus wrongdoing that can be explained in terms of an intelligible evaluation of, and reaction to, moral reasons, means the wrongdoer is a legitimate candidate for blame, without more. in turn, there are only two ways to deny moral responsibility with the shallow capacity theory: either to break the link between the agent and the wrongdoing, and thereby deny authorship, or deny the agent was capable of rational action tout court. further understanding of the shallow capacity theory is obtained through an examination of its approach to excuses. it is to be remembered that once a wrongdoer is morally responsible, she is a legitimate candidate for moral evaluation in light of her wrongdoing, with the allocation of blame dependent on the conclusion reached as a result of that evaluation. according to the shallow capacity theory, moral responsibility depends exclusively on the capacity to act intelligibly. the result of this approach is that the only subject matter upon which blame and excuses can be allocated is the moral quality of the agent’s intelligible motives for her wrongdoing.10 thus, if the wrongdoing expresses morally defective values, then the agent is (more or less) blameworthy. if the wrongdoing expresses (some) morally appropriate values, then the agent may not be fully blameworthy.11 in such cases, a full or partial 8 gardner “the gist of excuses” (1998) 1 buffalo criminal law review 575 at 588589 and “justifications and reasons” in andrew p simester and anthony t h smith (eds) harm and culpability (oxford: clarendon press, 1996) pp 103-129, at pp 121122. also sclossberger, ibid p 144. 9 schlossberger ibid 74-76. 10 the shallow theory also purports to encompasses moral responsibility for negligence, a form of wrongdoing that may appear unmotivated, by interpreting the negligence as constituting or expressing a morally defective attitude, see schlossberger ibid p 109 and simester above n 5 generally. 11 nicola lacey summarises this approach to excusatory exculpation as follows: “the focus, crucially, is upon the quality of the attitude manifested in the defendant’s capacity, moral responsibility and the criminal law 38 excuse may be appropriate.12 this can be illustrated with chosen wrongdoing and duress. let us take two hypothetical soldiers, michael and paul, captured by the enemy. michael is threatened with torture and execution unless he reveals certain important military secrets, and proceeds to do so. meanwhile, paul is threatened with being tickled unless he reveals the same secrets, which he also proceeds to do. michael’s judgment that terrible pain is worth avoiding and that his life is worth saving has certain positive moral features: a subtle moral analysis of his motivation reveals certain morally acceptable dimensions, and is not indicative a person whose priorities are ranked entirely incorrectly. he can be partially excused as a result. by contrast, paul’s choice shows that he values not being tickled, a trivial event, over the fundamental interests of others, and this is an incorrect moral judgment. paul is therefore fully blameworthy.13 conduct, evaluated in the light of (a generous interpretation of) the context in which it occurred [her emphasis]”, see her “partial defences to homicide” in m mitchell and a ashworth (eds) rethinking english homicide law (oxford: oxford university press, 2000) p 107, p 119. lacey calls this the “reasons view” of criminal defences, as it focuses on the agent’s reasons for violating the criminal law, with exculpation allocated when those reasons exhibit certain morally acceptable features. she also points out how those who subscribe to this view distinguish such excusatory defences from exemptions such as insanity and diminished responsibility (p 117), as those benefiting from the latter defences “[are] not capable of acting responsibly in the given sense” (p 119). lacey is describing the position of those who subscribe to the shallow capacity theory. 12 for an argument that there is no such thing as an excuse that fully extinguishes blame for wrongdoing, see n dahl “‘ought’ and blameworthiness” (1967) 64 journal of philosophy 418. 13 i have adapted this example from schlossberger above n 3 p 106. it is important to note that gardner conceives of excuses as instances of “indirect rational explanation”, whereby the agent does not directly justify her wrongdoing, but rather the beliefs, emotions or desires that led to it. according to gardner, duress and provocation therefore excuse when the wrongdoer can point to good reasons for her fear or anger. it is a purely evaluative approach that focuses on the moral quality of the agent’s rational reasons for feeling as she does: see above n 8, especially p 119-120, and also “the mark of responsibility” (2003) 23(2) oxford journal of legal studies 157 and “no provocation without responsibility: a reply to mackay and mitchell” (2004) criminal law review 213, especially at 214-215. gardner’s theory is a version of what lacey calls the “reasons view” of criminal law defences (see above n 11). http://www.ingentaconnect.com/content/external-references?article=0143-6503(2003)23:2l.157[aid=7851709] http://www.ingentaconnect.com/content/external-references?article=0022-362x(1967)64l.418[aid=5247544] http://www.ingentaconnect.com/content/external-references?article=0022-362x(1967)64l.418[aid=5247544] the denning law journal 39 the capacity for self-control as conceived by the self-control theory the capacity for self-control as conceived by the self-control theory requires, as a necessary background feature, the possession by the agent of an intelligible conception of the good. this acts as a general blueprint by which the agent assesses and plans her conduct. such a conception is made up of the agent’s diachronically stable, coherent and more or less mutually consistent higher order moral and prudential values. key to such values is their importance to the agent: as n j h dent explains, a rational agent “will come to some sense of which [various concerns] have a more enduring significance to him, a sense of their significance which will survive the occasional disappearance or overlaying of any passionally engendered sense of their importance. one could say that he will come to an appreciation of their value.”14 conceptions of the good therefore consist of those values, aims and perspectives that, as gary watson puts it, “in a cool and non-self deceptive moment [the agent] articulates as definitive of the good, fulfilling, and defensible life.”15 what i mean by the capacity for self-control is the agent’s capacity to govern her conduct in accordance with her conception of the good whatever the desires she is experiencing.16 the self-control theory therefore rejects the notion of the agent as the passive object of the various desires within her psychology, blown one way or another at any given time by the most causally powerful amongst them, but rather conceives of the agent as possessing a distinct and active capacity to control her actions in light of her deliberative judgements about what she has most reason to do. it is this capacity to control conduct whatever the desires the agent is experiencing that gives the capacity for self-control its active, or volitional, component. this approach to the genesis of action is therefore in contrast to what may be termed the hydraulic account of human motivation, whereby the agent is always at the mercy of her most powerful desires, and whether or not she exercises self-control purely the fortuitous result of a match between her most powerful desire and her better judgment.17 14 the moral psychology of the virtues (cambridge: cambridge university press, 1984) p 111. 15 gary watson “free agency” in g watson (ed) free will (oxford: oxford university press, 1982) pp 96-110, p 105. it is worth noting that a rational agent will also accept that her values and goals may develop or change in light of new experiences, information and argument. 16 i am using the term ‘desire’ widely, to include emotions, urges and impulses. 17 once more i draw the reader’s attention to the work of wallace, above n 2, in particular 630-638 of “addiction as defect of the will: some philosophical reflections”, where wallace contrasts what he calls the volitionalist and hydraulic capacity, moral responsibility and the criminal law 40 the capacity for self-control is called upon whenever the agent experiences desires that prompt conduct inconsistent with her conception of the good. exercising self-control therefore means the agent exploiting her capacity for self-control in order to act, or refrain from acting, as required by her conception of the good in the face of incontinent desires. in turn, when an agent fails to exercise self-control, for example under the influence of addiction, anger or merely temptation, she acts (or fails to act) for reasons that she rejects in light of her conception of the good, or, if not rejects, believes to be outweighed by other reasons.18 the capacity for self-control is therefore more than a mere capacity for intelligible action, since it actively empowers the agent to put her settled higher order values into practical effect whatever the emotions, desires etc she is experiencing. it is worth noting that the capacity is complex, and involves more than a purely volitional component to act on better judgment once practical resolutions have been reached. it also involves an active capacity to prevent emotion and the like from corrupting practical reason, thereby ensuring that the agent’s practical resolutions and intentions are in accordance with better judgment. further understanding of this feature of the capacity will emerge below, when i discuss the exercise of self-control in the context of provocation and the emotion of anger. agreement and conflict between the two theories there is a measure of agreement between the shallow capacity and selfcontrol theories. this is because the self-control theory does not reject the exemptions that flow from the shallow capacity’s requirements for authorship and intelligibility. thus the self-control theory accepts that certain exemptions, such as reflex movements or bodily movements during seizures, exempt by breaking the link between the agent and her wrongdoing. after all, it makes no sense to evaluate an agent morally for wrongdoing with which she is in no way connected. the self-control theory also accepts that agents who are fundamentally incapable of rational action should be exempt. since moral responsibility involves a moral evaluation of the agent in light of her wrongdoing, if the wrongdoing is not an expression of a rational (though perhaps morally defective) set of values, moral evaluation, once more, makes conceptions of human motivation, and rejects the latter. for another argument that treats self-control as a distinct faculty that is exercised by the agent, see richard holton “how is strength of will possible?” in s stroud and c tappolet (eds) weakness of will and practical irrationality (oxford: clarendon press, 2003) pp 3967. 18 in the context of negligence (inadvertent wrongdoing), this means the agent does not wish to bring about, or risk, the harm she inadvertently causes or risks. the denning law journal 41 no sense.19 where excuses are concerned, there is also some agreement, since the self-control theory accepts that some excuses may depend exclusively on an analysis of the moral quality of the agent’s motivation. the conflict between the two theories is due to the fact that the selfcontrol theory considers the shallow capacity theory incomplete; according to the self-control theory, moral responsibility also requires, in addition to the capacity for intelligible action, possession of the capacity for self-control as outlined in the previous section. this requirement is something that the shallow capacity theory explicitly rejects.20 this disagreement is closely linked the shallow capacity theory’s approach to authorship. as stated above, the shallow capacity theory adopts a global and wholly inclusive view of the agent, embracing all her emotional and cognitive features. it also holds that once wrongdoing is linked to those features in the required sense, the agent is morally responsible for that wrongdoing, without more. even if the agent is incapable of controlling her conduct in light of her better judgement, this is irrelevant to her moral responsibility, because the shallow capacity considers such action an expression of the agent’s agency. it is for this reason that 19 schlossberger above n 3 p 144 (“the insane are not responsible, i suggest, because we cannot tell a coherent story about them as moral evaluators that makes sense of their lives. we cannot attribute to them stable attitudes, coherent goals, values to which they are committed, and so forth. we cannot regard their acts as expressing a moral framework, whether good or ill”). see also gardner above n 8 p 121 and above n 8 at 589 (“but the focus on making sense of people’s actions in the light of their reasons rightly brings to the surface the important point that those whose reasoning can’t be made sense of in this way, whether because of profound mental illness or infancy or sleepwalking or (on some interpretations of it) post-hypnotic suggestion, are not responsible for their actions and therefore need no excuses for what they do”). 20 schlossberger ibid p 41 and p 67; adams above n 3 pp 12-13, simester above n 5 p 98 and gardner ibid 581-582, 584-585 and 589. gardner is skeptical about the whole notion of a capacity for self-control, because he believes there is no such thing as unexploited capacity, or, to put it colloquially, capacity to spare. all behaviour is at the limit of whatever that agent is capable of at the moment action. this is not to say that gardner rejects the need for a second-order rational capacity before one is morally responsible. he believes, as explained in an e-mail to me, that an agent’s actions need to be sensitive to her reasons for acting, and her reasons for acting in turn need to be sensitive to the facts (i e to her reasons for holding them to be reasons). in other words, gardner believes that the agent needs to be capable of evaluating and selecting the reasons for which she acts (for that is how they become her reasons). where gardner and i disagree is that gardner does not believe that the agent needs any kind of active or volitional control over the reasons for which she acts. by contrast, i believe that agents do have capacity to spare, capacity that they can fail to exploit, and that possession of this capacity in the context of self-control is a necessary feature of moral responsibility for wrongdoing. capacity, moral responsibility and the criminal law 42 weakness of the will poses no problem for the shallow capacity theory, because the agent is identified with the values expressed in her wrongdoing, even though they are rejected in light of her better judgment.21 the selfcontrol theory, in contrast, argues that self-control does raise questions for moral responsibility, and that a complete understanding of moral responsibility, and hence exemptions and excuses, requires a theory that treats possession of the capacity for self-control as a necessary condition of moral responsibility. it is for this reason that it considers the shallow capacity theory incomplete. i will expose the incompleteness of the shallow capacity theory over the next two sections of this article by discussing two flaws that flow from its rejection of the need for the capacity for self-control. the first of these flaws manifests itself in the context of the partial excuse of provocation, the other in the context of exemptions. the shallow capacity theory’s first flaw: an incomplete account of provocation as excuse this section of the article will proceed in two stages. first, i will argue that the shallow capacity theory is flawed because it cannot give a complete account of why anger-inducing provocation should sometimes partially excuse murder, in contrast to the self-control theory, which can.22 the reason for this flaw lies in the shallow capacity theory’s refusal to see that the exercise of self-control lies at the heart of the correct conceptualisation of the partial excuse. dan m kahan and martha c nussbaum’s approach to the partial defence of provocation, a purely evaluative theory that rejects the relevance of self-control and therefore reflects the approach of the shallow capacity theory, will be used to expose this flaw.23 second, i will assess the criminal law in light of my argument that the exercise of self-control lies at the heart of the partial defence of provocation, including a comment on the law commission’s recent proposals for reform of the defence.24 21 see schlossberger ibid p 67. 22 references to provocation from now on should be taken to refer to provocation that triggers anger. 23 “two conceptions of emotion in criminal law” (1996) 96/2 columbia law review 269. 24 law commission murder, manslaughter and infanticide law com no 304 (london: tso, 2006) (‘law com 2006’), part 5. http://www.ingentaconnect.com/content/external-references?article=0010-1958(1996)96:2l.269[aid=4618670] http://www.ingentaconnect.com/content/external-references?article=0010-1958(1996)96:2l.269[aid=4618670] the denning law journal 43 exposing the flaw in the shallow capacity theory’s conception of provocation as excuse in addressing provocation and the emotion of anger, kahan and nussbaum treat cognition, in the form of an agent’s evaluation that she has been wronged and her evaluation of what she should do in response to that wrong, as the predominant component of the emotion of anger.25 in turn, they argue that provocation’s excusatory nature depends exclusively on an assessment of the agent’s evaluation that she has been wronged. if that evaluation involves the agent perceiving violations of certain fundamental moral values, for example the rape or killing of a loved one, then, according to kahan and nussbaum, the agent can be justifiably enraged and partially excused for her intentional killing,26 and thereby be convicted of voluntary manslaughter.27 however, they recognise, correctly, that there is something defective about the evaluation embodied in the agent’s anger, in that she has failed to give the correct moral weight to the value of the provoker’s life and the importance of lawful resolution of disputes. they conclude that it is this defect that results in provocation acting as a partial excuse.28 key to kahan and nussbaum’s argument is that anger’s impact on the exercise of self-control is irrelevant to why provocation can excuse; in this regard, they state, “the moral status of emotions [ ] is determined by the quality of the values they express, not by their effect on volition.”29 though i agree that provocation is correctly conceived as a partial excuse, it seems to me that this purely evaluative approach, which treats questions of self-control as irrelevant, is incomplete. in turn, when the incomplete nature of the purely 25 this reflects their “evaluative conception” of emotion generally: above n 23, at 285-297. 26 strictly speaking, the defendant might only have intended grievous bodily harm under the english definition of murder. 27 above n 23, at 305-323, in particular at 313. for a similar argument, see v nourse “passion’s progress: modern law reform and the provocation defense” (1997) 106 yale law journal 1331. 28 kahan and nussbaum, ibid 313. it is worth noting gardner’s argument that all excuses, full or partial, suffer from some moral defect, and that it is this defect that distinguishes not full excuses from partial excuses, but excuses of any kind from justifications; see, for example, “justifications and reasons” above n 8 pp 103-129. 29 ibid at 343. though the following quote refers to duress and the emotion of fear, it captures the essence of kahan and nussbaum’s approach to anger and their general thesis that control issues are not relevant: “…duress exculpates not because (and when) threats vitiate a person’s moral agency, but because (and when) a person’s fear expresses a rational and morally appropriate assessment of her circumstances” (336). capacity, moral responsibility and the criminal law 44 evaluative approach is explained, it exposes a flaw in a theory of moral responsibility that treats self-control as irrelevant to moral responsibility. kahan and nussbaum’s theory is incomplete because the moral defect in the provoked agent’s anger is fatal to excuse based exclusively on the moral quality of that anger. the reason emerges from the backward-looking quality of the provoked agent’s reasons for acting. unlike cases of self-defence or duress, where the threatened agent acts prospectively to prevent harm or death to a loved one or herself, provoked agents are, as jeremy horder explains: “inflicting injury in response to a perceived wrongdoing that is now a part of history, albeit recent history.”30 in other words, the provoked agent is not acting to protect her autonomy or the autonomy of another, but to impose private punishment.31 the problem is that killing in the name of private punishment is, without more, fully culpable. the reason why backward and forward-looking reasons for acting are distinguishable in this context is derived from the criminal law’s attitude to self-help combined with the moral quality of the agent’s reasons for acting as she does. with criminal law justifications/excuses based on forward-looking reasons, such as duress and self-defence, the agent is presented with a more or less pressing need to take action in the name of self-preservation or the preservation of another. this need not manifest itself in an immediate temporal need for action, but nevertheless means that the agent must act there and then; an example would be a lone and isolated hostage told she will be executed in 24 hours and presented with an opportunity to attack her kidnapper with 12 hours to go. the agent’s actions in such cases have a special moral purpose: to restore or maintain her own autonomy, or the autonomy of another, in the face of a threat that is, in some sense, illegitimate.32 this moral purpose is one shared by the state, with the result 30 “autonomy, provocation and duress” [1992] criminal law review 706 at 709. for a similar argument, see a von hirsch and n jareborg “provocation and culpability”, in f schoeman (ed) responsibility, character and the emotions: new essays in moral psychology (cambridge: cambridge university press, 1987) pp 241-255, pp 245-248; in this regard, von hirsch and jareborg note: “the claim of extenuation comes not from currently threatened interests, but from the defendant’s sense of grievance” (p 248). 31 horder, ibid 709-711. 32 the above discussion distinguishes between provocation, on the one hand, and selfdefence and duress, on the other, on the basis that action in the former is based on backward-looking reasons and action in the latter is based on forward looking reasons. however, it is accepted that self-defence arguably has a backward looking element, at least in ideal form, in that there must be an aggressor who is legitimately harmed so that her attack can be thwarted. however, acknowledging this does not detract from the argument in the text above, because that argument does not hold that the denning law journal 45 that, if the state had an opportunity to neutralise the threat, it would take that opportunity. furthermore, and crucially, the state’s response would be justified because the threat is illegitimate, and its response can be tailored to remove the threat efficiently due to its overwhelming power. however, if the state cannot intervene, the private citizen, based both on need and also the illegitimacy of the threat faced, is justified in, or at least excused for, neutralising the threat where self-defence is concerned,33 or avoiding the threat where duress is concerned.34 conversely, if there is an opportunity for acting for backward looking reasons by definition cannot sustain an excuse, rather that the backward looking reasons present in cases of provocation cannot do so if provocation’s excusatory potential depends purely on the moral quality of the agent’s anger. in provocation, those backward looking reasons are purely punitive, whereas in self-defence, they define when acting for forward-looking reasons is justified. for a sophisticated discussion of when killing in self-defence is justified, see suzanne uniacke permissible killing; the self-defence justification of homicide (cambridge: cambridge university press, 1994). 33 the force used to neutralize the threat in self-defence must be reasonable in light of the threat or the honestly perceived threat: see scarlett [1994] 98 crim app r 290 and owino [1996] 2 cr app r 128. there is much debate as to whether an agent is justified or merely excused when she mistakenly but reasonably believes she is under attack, and then reacts proportionately to the perceived attack. some argue that the agent is justified in such circumstances; see, for example, joshua dressler “new thoughts about the concept of justification in the criminal law” (1984) 32 ucla law review 61 at 92-95 and kent greenawalt “the perplexing borders of justification and excuse” (1984) 84 columbia law review 1897, at 1907-1911. others argue that the agent is merely excused; see, for example, george fletcher rethinking criminal law (little, brown and company, 1978) pp 762-769 and “the right and the reasonable” (1985) 98 harvard law review 949 at 972-973. the fact that english law allows unreasonable but honestly believed mistakes as to an attack to lead to an acquittal (with the exception of those generated by voluntary intoxication: see o’grady [1987] 3 wlr 321 and o’connor [1991] criminal law review 135) is the product of a certain doctrinal view flowing from the requirement for mens rea (see gardner above n 8 p 121). however, if the mistaken belief in an attack is the product of gross negligence and death results, the defender is guilty of gross negligent manslaughter. 34 there remains a question mark over whether the defence of duress is a justification or an excuse. this arguably depends on the nature of the crime specified in order to avoid realisation of the threat. however, given that the required threat is of death or serious personal injury (see graham (1982) 74 cr app r 235), it is submitted that many instances of duress will be justifications. in any event, the threat represents an illegitimate restriction on the autonomy of the person threatened, a quality duress shares with self-defence. it is worth noting that english law is not clear on whether the defence is lost when the threatened agent has an honest but unreasonable belief http://www.ingentaconnect.com/content/external-references?article=0017-811x(1985)98l.949[aid=5239691] capacity, moral responsibility and the criminal law 46 the state to neutralise the threat, the agent should allow the state to do so; in such circumstances, private action, no longer necessary, ceases to be justifiable or excusable.35 it is for this reason, in part, that the criminal law imposes the requirements of imminence for duress and necessity for selfdefence. thus, to summarise, when the agent cannot rely on the state to protect her autonomy or the autonomy of another, actions taken to secure that autonomy are justifiable in some cases and excusable in others, and this is reflected in the criminal law. the above arguments do not apply with provocation. where self-help is concerned, unlike duress and self-defence, there is no practical need for any action in order to protect autonomy, but only an impulse for a response based on grievance. perhaps this would not matter if the agent’s reasons for killing were morally highly compelling in light of the reasons against killing, but they do not measure up in light of those very powerful reasons. it is for this reason that the criminal law does not share in the values expressed in the act of killing, because the state does not condone punishment of such severity, whatever the provocative act or event.36 in light of these arguments, private individuals are expected to refrain from killing purely in the name of punishment, and remain fully culpable if they do so, however grave the wrong committed against them. this is not to say that the presence of a morally grave provocation does not have an excusatory role to play: naturally, no excuse should be available if the provocation is not sufficiently serious.37 but an additional excusatory factor requires articulation if we are to understand why we excuse in light of the provoked agent’s failure to accord the correct moral weight to the value of the agent’s life and the importance of the lawful resolution of disputes. that necessary additional excusatory factor is the difficulty that sufficiently intense anger creates for self-control, because that difficulty, as i will explain further below, allows us (partially) to overlook the agent inflicting such severe punishment at her own initiative. however, before that a threat is being made: see martin [2000] 2 cr app r 42 and safi [2003] ewca crim 1809. 35 when the agent fails to exploit an opportunity for state intervention, more emphasis could be placed on fear by both the self-defence and duress defences in order to excuse the fact that the agent does not allow for that state intervention. in this sense, the effect of fear on self-control in the context of self-defence and duress should be acknowledged by the criminal law in the same way, as i will argue in the text above, that it acknowledges the effect of anger in the context of provocation. 36 perhaps under certain circumstances, the death penalty is morally justified for certain crimes, though this is highly debatable. even so, the infliction of such punishment should be, in any event, the exclusive province of the state. 37 thus the gravely provoked agent’s reasons for acting are merely a necessary condition for an excuse, but not sufficient of themselves. the denning law journal 47 i turn to the exact nature of this difficulty for self-control, it is necessary to outline how self-control functions as a capacity in this particular context. anger in the context of provocation is the experience of more or less intense physiological arousal, commonly known as affect, triggered by an evaluation that a wrong has been committed against the angry agent or someone close to her.38 anger creates problems for self-control because, as stephen gough explains, “[it] modifies perspective, directing focus towards (existing) reasons to confront and fight at the expense of reasons to bite one’s tongue, walk away or otherwise act sensibly.”39 anger is able to modify perspective in this way because its affective dimension makes the agent uncomfortable, sometimes acutely, in not contemplating retributive action.40 the discomfort inclines the agent towards the choice to harm the provoker because when that choice is entertained and acted on, the anger, and hence the 38 it is a commonly held thesis that the evaluation of such wrongdoing not only triggers anger, but also partly constitutes the emotion of anger: see, for example, kahan and nussbaum, above n 23 at 282-4; patricia s greenspan emotions and reasons: an enquiry into emotional justification (new york: routledge, 1988) pp 48-55; and timothy macklem and gardner “provocation and pluralism” (2001) 64 modern law review 815 at 820. deciding this question is not necessary for the purposes of this paper, though it is accepted that the degree of an agent’s anger, when that agent is emotionally healthy, is proportionate to her evaluations: see n 42 below. the cognition-affect debate with regard to emotion is well summarized in chapter 1 “the cognition-emotion debate: a bit of history” by richard s lazarus, and chapter 2 “the philosophy of cognition and emotion” by william lyons, both in t dalgliesh and m power (eds) handbook of cognition and emotion (john wiley and sons ltd, 1999). see also chapter 8 “anger” in dagliesh and power (eds) cognition and emotion: from order to disorder (hove: psychology press, 1997) pp 303-343, especially pp 304-310 and pp 323-324. see also de sousa, chapter 1 “getting philosophically involved with emotion”, and chapter 7 “the rationality of emotion” in the rationality of emotion (cambridge and london: the mit press, 1987) and jon elster, chapter 2 “emotion” in strong feelings: emotion, addiction and human behaviour (cambridge, mass: the mit press, 1999). 39 “taking the heat out of provocation” (1999) 19 oxford journal of legal studies 481 at 487-8. 40 this discomfort can have two consequences: either the process of practical reasoning is polluted by the anger, resulting the conclusion that retribution is the correct response, or practical reasoning functions perfectly well, but the anger tempts the agent to choose in conscious violation of her better judgment. richard holton and stephen shute discuss the former in “you can’t lose what you ain’t never had: self-control in the modern provocation defence” unpublished manuscript, at 5: see http://homepages.ed.ac.uk/rholton/pubs.html. von hirsch and jareborg point out the latter possibility: “the difficulty, it should be noticed, is not purely cognitive. the distinction between permissible and impermissible responses to wrongdoing may be apparent enough” (above n 30 p 250). http://www.ingentaconnect.com/content/external-references?article=0026-7961(2001)64l.815[aid=7851717] http://www.ingentaconnect.com/content/external-references?article=0026-7961(2001)64l.815[aid=7851717] http://www.ingentaconnect.com/content/external-references?article=0143-6503(1999)19l.481[aid=7851716] http://www.ingentaconnect.com/content/external-references?article=0143-6503(1999)19l.481[aid=7851716] http://homepages.ed.ac.uk/rholton/pubs.html capacity, moral responsibility and the criminal law 48 feeling of discomfort, is assuaged.41 despite this inclination, there are, generally speaking, two ways an agent can exercise self-control so that his anger does not translate into (unjustified) wrongdoing. the first is derived from the nature of the emotion itself. the role of cognition in triggering, and perhaps partially constituting, anger reveals that an important feature of selfcontrol in this context is at the point of cognitive input. this is because, for emotionally healthy agents, cognition and affect stand in a proportionate relationship.42 thus the agent who is jostled accidentally and experiences a surge of anger can exercise self-control by focusing on the fact that no deliberate wrong was intended.43 but self-control can also be exercised at the level of behavioural output. this is because, as carroll izard states, “anger prepares us well for action, but it does not command or compel us to act.”44 such control does not seek to alter the evaluation that triggered the anger, but to ensure that the agent does not allow that anger to translate into the decision to kill or cause serious injury.45 for example, it can channel the anger into a non-violent response, such as words. these two forms of self-control are not mutually exclusive, but can reinforce one another. for example, in the case where the agent is jostled accidentally, buying time so as to enable the agent to evaluate whether the conduct was intended to provoke as a matter of input 41 p s greenspan emotions and reasons: an enquiry into emotional justification (new york: routledge, 1988), pp 48-55 and pp 159-160. see also her “subjective guilt and responsibility” (1992) 101 mind 287-303 at 288, reprinted in wallace (ed) reason, emotion and will (aldershot: ashgate publishing company, 1999) pp 475491, p 476 and her “unfreedom and responsibility”, in schoeman, above n 30, p 67. 42 as michael moore points out: “being caused by judgement, such emotions obey laws of proportionality, keeping feeling proportional, both in type and intensity, to its object”, “choice, character, and excuse” in placing blame (oxford: clarendon press, 1997) p 559, n 29. see also chapter 8 “anger”, in m power and t dagliesh (eds) cognition and emotion: from order to disorder (hove: psychology press, 1997) pp 313-318. 43 as n h frijda points out in a discussion of the control of emotion: “there is appraisal regulation: appraisals can be modified within a considerable range by selective attention and self-serving cognitive activities”, see the emotions (cambridge: cambridge university press, 1993) p 401. for evidence of the success of evaluation-alteration reducing anger, see j r averill anger and aggression: an essay on emotion (new york: springer-verlag, 1982) pp 202-203. 44 the psychology of emotions (new york: plenum press, 1991) p 248. 45 this includes not allowing anger to corrupt judgment, the corruption leading to the conclusion that the provoker deserves what is coming to her: see holton and shute, above n 40. or the agent can control action more directly: as frijda states: “there is impulse control: emotional urges can be suppressed so as to disappear from consciousness as well as from behaviour…overt response can be checked, or attenuated, shaped, or replaced by some other response”, above n 43. the denning law journal 49 control will require a measure of output control. in turn, the dramatic reduction in, or perhaps extinction of, the agent’s anger that flows from her correct assessment facilitates the exercise of output control. with regard to the difficulties anger creates for self-control, what is key is that when the provoked agent’s anger is morally justified, self-control is especially difficult for two reasons. first, input control is not possible: the agent has good reasons for being angry. secondly, output control involves a moral dilemma, as explained by andrew von hirsch and nils jareborg. they point out that, generally speaking, when one is angry, one’s moral sense should act as “a bridle to the passions”: “its proper role is to keep anger in check and prevent it from spilling over into action. ordinarily there is nothing equivocal about that restraining role. if the self-restraint fails, then one’s moral inhibitions have not functioned as they should, and that hardly makes one any less to blame.”46 however, when one is properly angry, ‘[c]onscience…has a divided role, of encouraging animus against the instigator, prompting one to take certain actions against him, and yet restraining one from making other kinds of responses. this divided role complicates self-restraint in fallible human beings, and our sympathy for the provoked person – our sense of the appropriateness of extenuation – stems therefrom.’47 now, i argued above that the mere fact that the provoked agent’s anger is morally justified is insufficient to excuse her for killing in its name. however, when justified anger’s implications for self-control are added to the equation, partial exculpation is appropriate. as gary watson explains in a criticism of kahan and nussbaum, “emotions are both evaluative states and states that potentially interfere with rational control in various ways. it is therefore not surprising that coercive predicaments give rise to defenses expressing both these truths”.48 the moral defect in the provoked agent’s motivation, that is the failure to accord the correct moral weight to the value of the provoker’s life and the importance of the lawful resolution of disputes, ceases to be fatal to an excuse in the presence of the challenge to self-control constituted by intense and justified anger. this is because, though we expect agents to refrain from killing purely in the name of private punishment, when self-control is severely challenged by intense and justified anger, we can partially excuse the failure to exercise self-restraint. but both a morally grave provocation and intense anger flowing from that provocation are necessary. thus the calm agent who kills as a reaction to a wrong, however serious, 46 above n 30, at p 250. 47 ibid. 48 “excusing addiction” (1999) 18 law and philosophy 18 589 at 610, n 60. http://www.ingentaconnect.com/content/external-references?article=0167-5249(1999)18l.589[aid=5051229] capacity, moral responsibility and the criminal law 50 cannot be excused; similarly, the incensed killer whose anger is generated by petty jealousy cannot be excused, however angry she may be.49 the excusatory potential of provocation therefore depends on more than a moral evaluation of the cognitive judgment that triggers, and perhaps partially constitutes, the agent’s anger. in light of the challenge to self-control represented by provocation, moral evaluation of the provoked agent, and the potential allocation of an excuse, has a wider focal point, in the form of an assessment of how the agent’s capacity for self-control was exercised. this moral evaluation takes into account not only the judgments made by the provoked agent, but the effect of anger on her ability to act on her better judgment. thus, when the provocation is grave, and the provoked agent experiences intense anger, the conclusion is that self-control has been exercised sufficiently well for the agent to deserve a partial excuse.50 thus the excusatory potential of provocation cannot be confined to an assessment of the judgment at the heart of the provoked agent’s anger. the above criticism of kahan and nussbaum has implications for the validity of the shallow capacity theory because, in rejecting possession of selfcontrol as a necessary condition of moral responsibility, it is compelled to conceive of the excuse of provocation in a purely evaluative fashion. it is to be remembered that moral responsibility sets out the necessary and sufficient conditions for entering the process of moral evaluation that may issue in blame, and excuses, full and partial, are concerned with those times when the ascription of blame is not (fully) appropriate as the conclusion of that process. the shallow capacity theory therefore cannot, on the one hand, argue that selfcontrol is irrelevant to moral responsibility whilst, on the other, accept that a moral evaluation of the exercise of this supposedly irrelevant capacity lies at the heart of provocation as excuse. in other words, if the way self-control is exercised lies at the heart of the excuse of provocation, with the result that only those possessed of the capacity can be the subjects of that assessment, then moral responsibility requires possession of such a capacity in this context. after all, as john gardner often points out correctly, only the morally 49 given kahan and nussbaum’s purely evaluative approach to provocation, why do they require the agent to be angry at all? their answer is that anger governs the evaluation made by the agent: “…without anger or rage, the defendant’s acts would express nothing more than an inappropriately low valuation of the victim’s life”, see above n 23, at 315. i surmise that kahan and nussbaum believe this is so because an angry killer loses sight of the reasons against killing, whereas a calm killer acts in conscious defiance of those reasons. however, i am far from certain that this is always the case, especially in slow burn cases. 50 horder “criminal law: between determinism, liberalism and criminal justice” (1996) 49 current legal problems 159 at 170. http://www.ingentaconnect.com/content/external-references?article=0070-1998(1996)49l.159[aid=7851719] the denning law journal 51 responsible can make excuses.51 the result is that a theory of moral responsibility that treats self-control as irrelevant cannot underpin a correct conceptualisation of provocation as excuse. in contrast, the self-control theory does offer a full account of why provocation can excuse. by acknowledging not only the need for a morally defensible cognitive judgment to trigger (and perhaps partially constitute) the agent’s anger, but by also focusing on the difficulties that intense and justified anger creates for the exercise of self-control, the self-control theory completes a picture left incomplete by the shallow capacity theory. in light of this insight, i will now turn my attention to its implications for the criminal law. the self-control theory and the criminal law partial defence of provocation according to both the shallow and self-control theories, the partial defence of provocation is an excuse, not an exemption.52 to this extent, and in contrast to r d mitchell and b j mackay’s account of the defence,53 the two theories are in agreement. however, as we have just seen, each theory conceptualises the defence’s excusatory status differently. the shallow capacity theory, in light of its rejection of the relevance of self-control, conceptualises the defence in a purely evaluative way. it focuses on the moral quality of the cognitive judgment that triggers, and perhaps partially constitutes, the agent’s anger. the self-control theory accepts that this is a necessary feature of the defence, but that a full understanding of the defence’s excusatory effect depends on integrating the difficulties anger creates for the exercise of self-control. without those difficulties, an excuse should not be available in light of the provoked agent’s failure to accord the correct moral weight to the value of the provoker’s life and the lawful resolution of disputes. 51 this argument is a common theme of all gardner’s works cited in this article. 52 the most developed excusatory account of provocation as conceived by the shallow capacity theory can be found in the following articles by john gardner and timothy macklem: “compassion without respect: nine fallacies in r v smith” [2001] criminal law review 623 and “no provocation without responsibility” above n 13. 53 the approach of r d mackay and b j mitchell is set out in the following articles: “provoking diminished responsibility: two pleas merging into one” [2003] criminal law review 745; “replacing provocation: more on a combined plea” [2004] criminal law review 219; and “but is this provocation? some thoughts on the law commission’s partial defences to homicide” [2005] criminal law review 44. mackay and mitchell argue that the provocation is really a partial exemption, an approach that i propose to reject in a forthcoming article. capacity, moral responsibility and the criminal law 52 in light of the self-control theory’s requirement that the agent experience intense anger, there is much that is correct in the common law requirement, articulated in the first and subjective limb of the defence,54 that the defendant experience severe emotional disturbance and a consequent loss of selfcontrol.55 the common law is also correct to accommodate the notion of the slow burn: it is not the gap per se between the provocative act and killing that should be determinative, but rather the presence of severe emotional disturbance flowing from the provocative act.56 thus the subjective limb plays a necessary role in maintaining provocation’s status as an excuse. however, articulations of the subjective limb suffer from a terminological defect that may or may not reflect an underlying philosophical position. the language of loss of self-control that features in the case law could be interpreted as implying that self-control is not a capacity, the exercise of which is within the power of the agent, but rather something an agent either has or does not have, with its exercise beyond her control. thus in richens57 the court talks of the agent being unable to restrain himself. i reject this language and the deterministic thinking that may underpin it, as it is redolent of the hydraulic view of motivation, whereby the agent is at the mercy of her emotions, and whether or not she exercises self-control purely a matter of chance. in light of the notions of input and output control, it is submitted that it is better to say that the provoked agent fails to exercise self-control, rather than loses it, but can be partially excused given the difficulties of so doing when experiencing intense and justified anger. the common law should therefore continue to emphasise the need for a high level of anger, and consequent emotional interference with the exercise of self-control, the result 54 the defence is in fact a mixture of the common law and statute, specifically s 3 of the homicide act 1957. i will refer to the common law in the text above, as i believe that provocation is best conceived as a common law defence modified by the homicide act 1957 s 3. 55 see the dictum of devlin j in duffy [1949] 1 all er 932 that there must be a “a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind”, approved by the court of appeal in ibrams (1981) 74 criminal appeal reports and thornton [1992] 1 all er 306. the court of appeal in richens [1993] 4 all er 877 has stated that there is no need for a complete loss of self-control, in the sense that the defendant does not know what he is doing, merely the inability of the agent to restrain herself. though i reject the notion of loss of self-control, as i will argue in the text above, these authorities are correct to stress the need for significant emotional disturbance. 56 see ahluwalia [1992] 4 all er 899. though this is not the place to set out the argument, i believe that many cases of killings by women who are physically abused by husbands/partners should be accommodated by a more sophisticated version of self-defence, as i believe their actions are justified. 57 above n 55. the denning law journal 53 of which is the agent violating her better judgment, but it should not require that the agent be at the deterministic mercy of her anger. the recent decisions of attorney general for jersey v holley58 and r v karimi; r v james59 are to be welcomed for rejecting the increasing subjectivisation of the second limb of the defence in light of the characteristics of the provoked agent, a trend exemplified by the decision in smith (morgan).60 by restoring the objectivity of the second limb, the evaluative element of the defence is preserved through the requirement that the reasonable person would have reacted as the defendant did. this makes clear that the intense anger experienced by the provoked agent must be morally justified.61 these decisions also serve to ensure that the provocation defence remains an excuse and does not blur into an exemption, the value of preserving this distinction emerging more clearly in the next section of this article. thus the common law is more or less theoretically sound, since it requires both emotional disturbance to a significant degree and morally justified anger before the defence is available. in light of this, the recent proposals by the law commission for the reform of the defence are on interest, as they appear to be inspired by the purely evaluative view of provocation.62 the following are those parts of the law commission’s proposed reformulation of provocation that are relevant to the present discussion: (1) unlawful homicide that would otherwise be first degree murder should instead be second degree murder if: 58 [2005] 3 all er 371. 59 (2006) qb 588. 60 [2001] 1 ac 146. 61 there is much debate as to how to accommodate the various characteristics of the defendant in a manner that respects the evaluative element necessary to provocation’s status as an excuse, in particular the workability of ashworth’s distinction between characteristics which bear on the gravity of the provocation and those which bear on the agent’s level of self-control (“the doctrine of provocation” (1976) 35 cambridge law journal 292 at 300). for a discussion, see the works of mackay and mitchell above n 53. see also james chalmers “merging provocation and diminished responsibility: some reasons for skepticism” [2004] criminal law review 198. it is my position that ashworth’s distinction is perfectly workable, and i propose to defend it in another article in which i will reject mackay and mitchell’s argument that provocation only exists as a partial exemption. 62 above n 24, para 5.11. the effect of this defence is to reduce the law commission’s proposed category of first degree murder to its proposed category of second degree murder; the law commission’s definitions of these two categories can be found at paras 1.35 and 1.36. capacity, moral responsibility and the criminal law 54 (a) the defendant acted in response to: (i) gross provocation (meaning words or conduct or a combination of words and conduct) which caused the defendant to have a justifiable sense of being seriously wronged… (b) [and] a person of the defendant’s age and of ordinary temperament, i e, ordinary tolerance and self-restraint, in the circumstances of the defendant might have reacted in the same or a similar way. (2) in deciding whether a person of the defendant’s age and ordinary temperament, i e ordinary tolerance and self-restraint, in the circumstances of the defendant, might have acted in the same or in a similar way, the court should take into account the defendant’s age and all the circumstances of the defendant other than matters whose only relevance to the defendant’s conduct is that they bear simply on his or her general capacity for selfcontrol. (3) the partial defence should not apply where: (a) the provocation was incited by the defendant for the purpose of providing an excuse to use violence; or (b) the defendant acted in considered desire for revenge. (5) a judge should not be required to leave the defence to the jury unless there is evidence on which a reasonable jury, properly directed, could conclude that it might apply. the requirements for an ordinary temperament and a morally grave provocation in the reformulation are to be welcomed, since, as indicated above and explained more fully in the next section, they help maintain provocation’s correct status as an excuse as opposed to an exemption. however, there is no mention of the effect of anger on self-control. indeed there is no mention of the agent’s emotional state at all. this is a deliberate omission by the law commission, as it believes the subjective limb of the defence to be unnecessary and undesirable.63 however, the omission is a serious one, because, as we have seen, the effect of anger on self-control is 63 ibid, paras 5.17 to 5.32. the denning law journal 55 key to the defence’s excusatory status.64 to object to this requirement is therefore to deny the inherent nature of the defence. nevertheless, the law commission advances three arguments against the subjective limb; these arguments, however, can be countered if the self-control theory’s conceptualisation of the subjective limb is adopted.65 first, it believes that the subjective limb suffers from one particular ambiguity: does it mean that the defendant was unable to exercise self-control, or simply failed to exercise self-control? furthermore, it believes the first question cannot be answered, even by medical science.66 however the selfcontrol theory, rejecting as it does the hydraulic view of human motivation, resolves this ambiguity in favour of the defendant having failed to exercise self-control, with an excuse only being available when this failure can be explained in terms of the difficulties created by intense and justified anger. in so doing, it also avoids the supposed impossibility of ascertaining whether the defendant was unable to restrain himself. second, the law commission argues that the current defence favours male reactions over those of women, making it more difficult for women to satisfy the defence.67 but severe anger is not the preserve of men, and the defence is designed for people who kill whilst experiencing such anger. there is a need for a defence for women who kill oppressors, but provocation is not that defence, and should not be altered beyond recognition to meet that need.68 third, the general tenor of the law commission’s rejection of the subjective limb is that it is too vague, and 64 thus mackay and mitchell are correct to point out that emotional disturbance is a necessary feature of provocation, see “but is this provocation?” above n 53, especially at 46-47. 65 the law commission quotes with approval the arguments that it set out in law commission partial defences to murder law com no 290 (london: tso, 2004) (‘law com 2004’), paras 3.28 to 3.30 and 3.135 to 3.137, see above n 24, para 5.2 and n 13 of part 5. the argument in the text above is therefore a response to the arguments set out in both the 2004 and 2006 reports. 66 law com 2004, ibid, para 3.28. 67 law com 2006, above n 24, para 5.18. 68 thus i accept that there is a need for a partial defence based on a killer’s fear of serious violence: see s1(a)(ii) and (iii) of the law commission’s reformulation, law com 2006, above n 24, para 5.11. such a defence, based on forward looking reasons, could, as a result, be purely evaluative (on the significance of forward looking reasons, see my critique in the text above of kahan and nussbaum’s evaluative conception of provocation). one would imagine that the fear of serious violence would have to be based on reasonable grounds. however, it is arguable that such a defence does not go far enough for certain types of victim, such a physically abused women, and that there is a need for a justificatory defence for such circumstances resulting in a full acquittal. such a defence would require a more relaxed approach to the necessity requirement than currently available for self-defence. capacity, moral responsibility and the criminal law 56 therefore unworkable.69 in this regard, it argues that the acceptance of the notion of the slow burn, designed to reflect how anger may function where women are concerned, only adds to this lack of clarity.70 but the notion of extreme anger as required by the self-control theory is not difficult to define: it would not lead, as argued by the law commission, to intense legal scrutiny.71 nor is it beyond the experience of jurors: they are more than capable of asking, and answering, the question: did this person kill whilst experiencing extreme anger? it is no more difficult than many other questions of law that they are asked to understand and apply.72 the law commission would appear to believe that the benefits of the subjective limb are retained with greater clarity by its prohibitions on considered revenge and engineered provocation.73 i am not so sure. it seems to me that the concept of considered revenge is much more likely to engender complex legal debate than extreme anger, involving finely tuned argument as to what constitutes revenge, and then what is a considered version thereof. the prohibition on engineered provocation is in fact not relevant to the merit or otherwise of a subjective limb, but simply a moral bar to the use of the defence easily bolted on to the subjective limb. furthermore, it is vital that the defendant acts against her better judgment in killing, a requirement presently captured by the subjective limb, and the law commission’s bar on considered revenge does not guarantee that it is in place. the fact that a person of ordinary temperament might have reacted in the same way, when combined with no mention of anger’s effect on self-control, makes the reformulation consistent with a spontaneous response that is nevertheless in accordance with the agent’s values. such a defendant, acting in accordance with her better judgment, should not benefit from the defence, yet the substantive content of the law commission’s reformulation would make it available to such a defendant. perhaps the law commission imagines that the judge would prevent such cases reaching the jury under (5) of the reformulation, but if so, upon what basis would he or she do so? if it is because the judge feels that an agent should not benefit from the defence without losing self-control, then the reformulation will have failed to remove the subjective limb from the defence. 69 law com 2004, above n 65, para 3.30, law com 2006, above n 24, paras 5.17 and 5.19. 70 law com 2004, ibid, para 3.29. 71 law com 2006, above n 24, para 5.22, when discussing the notion of extreme emotional disturbance. 72 in this respect, the law commission recognises that the notion of extreme emotional disturbance may indeed be workable: see law com 2006, above n 24, para 5.22, and may even be required to be incorporated into the defence: para 5.32 (2). 73 law com 2006, ibid, para 5.20. the denning law journal 57 it is worth noting that the law commission accepts that 1(a)(i) of its reformulation may also require ‘a spontaneous display of anger’, but only suggests this to avoid certain premeditated killings from benefiting from the defence, as opposed to incorporating the requirement that the agent be acting against her better judgment.74 however, acting against better judgment is a key element of the excuse. the notion of premeditation is relevant to this question, in the sense that premeditated killings will almost always be in accordance with the agent’s better judgment, but some killings that are not premeditated will also be in accordance with the agent’s better judgment, and these should also be precluded from the defence. the prohibition on considered revenge, married with a requirement of spontaneous anger, does not therefore suffice to exclude such unmeritorious cases. to conclude, so long as the subjective limb is gently re-conceptualised in accordance with the self-control theory, it would be a mistake for the criminal law to abandon it as the law commission invites it to do. the notions of anger and failing to exercise self-control, key elements of provocation’s excusatory power, should be explicit and prominent features of the defence. i have argued that because, under certain circumstances, a provoked killer exercises her capacity for self-control with a certain level of normative competence, she should be partially excused for her wrongdoing. this is because the provoked agent is not seeking to exempt herself from the moral standards and modes of assessment that govern the allocation of excuses, but rather to submit herself to those standards and modes of assessment, and show how she more or less met them. more specifically, she is not claiming that her capacity for self-control was lost, impaired or underdeveloped, but that it was intact and exercised to a certain standard.75 however, on other occasions, the agent’s capacity for self-control will be adversely affected through no fault of her own. on such occasions, full or partial exemption from the standards inherent in the allocation of excuses may be appropriate. this brings me to the second flaw in the shallow capacity theory. 74 law com 2006, ibid, para 5.30 75 sometimes commentators talk of self-control being impaired by anger but this is based on confusion created by anger’s internal quality; however, despite this internal quality, anger per se does not impair self-control because it is exactly the type of phenomenon, along with, for example, incontinent desires, that self-control was designed to deal with. to say otherwise is akin to claiming that a person’s strength is impaired by the weight she is lifting. i reject the notion that self-control is a finkish disposition, disabled by anger, the very stimulus it is meant to control: see holton and shute, above n 40, n 30 and accompanying text. capacity, moral responsibility and the criminal law 58 the shallow capacity theory’s second flaw: an incomplete account of exemptions we have seen how the shallow capacity theory gives a convincing account of why automatism, insanity and infancy exempt, because such phenomena mean that the agent is either not the author of her wrongdoing or fundamentally incapable of rational action. however, its second flaw is that it cannot account for the exempting effect of other phenomena that should also exempt; these are involuntary intoxication by alcohol, drug addiction and phobias. in this section of the article, i will expose this flaw by arguing that the correct way of conceiving these phenomena is by showing how they can create such severe difficulties for self-control that the capacity should be considered impaired, thereby exempting the agent from a moral evaluation of how it has been exercised. given its rejection of the relevance of self-control, this argument is not available to the shallow capacity theory. based on this insight, i will then argue that there is a need in the criminal law for a distinct defence based on the notion of radical impairment of the agent’s capacity for self-control. exposing the flaw in the shallow capacity theory’s account of exemptions as i have just stated, the shallow capacity theory cannot account for the exempting effect of involuntary intoxication, drug addiction or phobias by means of any argument that refers to the agent’s capacity for self-control. if it is to give these phenomena exempting status, it must do so in one of two other ways. either it must show that their presence means the agent is incapable of behaving intelligibly, and so account for them in the way it accounts for infancy or insanity. alternatively, it must argue that their presence means the agent is not the author of the wrongdoing, and so account for them in the way that it accounts for wrongdoing resulting from a seizure or a reflex. if it can do neither, and i will explain that it cannot, then it must accept that the agent is fully morally responsible, which i will argue is wrong. alternatively, it may try to account for the exculpatory pull of such examples in the context of excuses, but i will show that this attempt also fails. let me begin with involuntary intoxication by alcohol. are wrongdoings performed whilst drunk, even very drunk, unintelligible? except on those rare occasions when alcohol consumption is such that the agent is rendered insane or an automaton, actions under the influence of alcohol are perfectly intelligible, even if often self-destructive, extreme or cruel. this can be illustrated by the case of kingston.76 though this case concerns drugs other 76 [1994] 3 all er 353. the denning law journal 59 than alcohol, they were disinhibitors, and therefore can be considered the same as alcohol for the purposes of this discussion.77 kingston was a homosexual man with paedophiliac tendencies that he had, apparently, hitherto refrained from indulging. invited to a flat in the belief that it was to discuss business matters, he was given coffee laced, without his knowledge, with soporific drugs.78 he was then taken into a bedroom where he found a 15 year-old-boy lying unconscious on the bed. he abused the boy sexually. despite the disinhibiting effect of the drugs, kingston’s behaviour was intelligible, though morally reprehensible: he was confronted with an object of sexual attraction, and he took advantage of that opportunity. perhaps, then, he was not the author of his actions? this argument would not appear available to the shallow capacity theory, since its refusal to compartmentalise the agent at the psychological level means that kingston is identified with the values expressed in the act of abuse. and the argument that the drugs had severed the link between kingston and his conduct seems equally problematic; at best, it can be said the drugs distorted kingston’s values. but were they distorted? in this regard, the adage in vino veritas springs to mind: kingston may sincerely believe that he should not indulge his desire for under-age boys, perhaps only out of fear of punishment, but he will certainly value so doing at some level. kingston’s agency as conceived by the shallow capacity theory therefore appears to have been expressed in his act of abuse, even though he failed to act in accordance with his better judgment. perhaps then he can be excused? however, an evaluation of his motivation reveals that an excuse is not available: he has acted for bad reasons and failed to accord the correct moral weight to his victim’s physical integrity and emotional wellbeing. he is therefore fully culpable according to the shallow capacity theory. yet i resist this conclusion: kingston’s capacity for self-control, his capacity to act for the reasons he deemed best, was severely compromised by his unknowing consumption of disinhibiting drugs. this factor should result in, at the very least, a partial exemption. i will explain why in greater detail below. the shallow capacity theory similarly cannot account for the impact of drug addiction on moral responsibility.79 the wrongdoing in question is consumption of the relevant drug(s) or wrongdoing designed to enable 77 for a full discussion of this case, see g r sullivan “making excuses” in a p simester and a t h smith (eds) harm and culpability above n 8, pp 131-152. 78 “there was evidence that the defendant had been slipped three kinds of soporific drugs with properties which would affect judgment, consciousness, and memory”: see sullivan, ibid p 131, n 3. 79 i am leaving to one side the important question of the drug addict’s moral responsibility for her wrongdoing that is derived from her original decision to consume the drug(s). for a discussion of this question, see s j morse “hooked on hype: addiction and responsibility” (1999) 18 law and philosophy 3 at 24-27. capacity, moral responsibility and the criminal law 60 consumption, such as burglary or theft. the addict’s decision to commit such wrongs is intelligible.80 where consumption is concerned, it expresses an intelligible decision to be free of, or satiate, the intense desire/craving;81 if it is related wrongdoing, it expresses that value and an intelligible decision to violate the rights of others. from the point of view of authorship, it makes no difference to the shallow capacity theory that the addict disapproves of those wrongful choices motivated by her addiction, because the shallow capacity theory identifies the agent with the values expressed by those choices. it is accepted that, if the behavioural implications of drug addiction are irresistible,82 the wrongdoing does not reflect the addict’s values, since such wrongdoing is nothing more than the direct expression of appetite free of value. in such cases, the intelligibility of the wrongdoing is not in question, since the addict is no longer acting for reasons, and, as a result, no longer the author of her wrongdoing. but such extreme cases, where the addict is akin to an automaton, must be rare. thus the addict, except for rare occasions, is fully morally responsible according to the shallow capacity theory. since she has also acted for bad reasons, and perhaps also failed to accord the correct moral weight to the interests of others, she cannot claim an excuse either. the result is that she is fully culpable according to the shallow capacity theory. yet, once more, i resist this conclusion. the powerful cognitive focus that addiction brings on the pleasures of consumption, a focus that makes acting on better judgment very difficult, should be acknowledged as a form of exculpation, in the form of a partial, and perhaps on some occasions, a full exemption. i will also explain why below. it is accepted that with phobias, the emotion of fear could be said to be unintelligible, in the sense that its object is not a rational source of fear, or, if that object is a rational source of fear, the intensity of the emotion is disproportionate to that object. but wrongdoing flowing from the experience of that fear,83 if not the phobia, is intelligible, in the sense that the agent expresses an intelligible decision not to experience the symptoms of the phobia. with regard to authorship, the phobic agent’s disapproval of her failure to overcome the behavioural implications of the phobia changes 80 i am concerned with wrongdoing committed whilst the addict is experiencing desires/cravings. wrongdoing at other times is a question of excuse. 81 for a sophisticated discussion of how to conceptualise addiction, see j orford “addiction as excessive appetite” (2001) 96 addiction 15. 82 for an explanation of why addictive desires can be resisted, see wallace “addiction as defect of the will: some philosophical reflections” above n 2 at 621624. for a discussion of those extreme cases where the desire might be irresistible, see j elster above n 38, p 138. 83 for example, an acrophobic father’s failure to rescue his child from the edge of a cliff. http://www.ingentaconnect.com/content/external-references?article=0965-2140(2001)96l.15[aid=7851726] the denning law journal 61 nothing where the shallow capacity theory is concerned, because the shallow capacity theory nevertheless identifies the agent with the values expressed by her choice to succumb. it is accepted that, if the behavioural implications of the phobia were irresistible, it could not be said that the wrongdoing reflects the agent’s values, since the intensity of the emotion, combined with its shallow cognitive input (e.g. ‘this is a spider’), has nothing to do with the holding of values. but such extreme cases, where the emotion has direct and irresistible access to the agent’s conduct, must be rare. thus, except for rare occasions, the phobic agent is fully morally responsible according to the shallow capacity theory. is it possible to account for the exculpatory effect of phobias within the domain of excuses, through an assessment of the values expressed in the agent’s wrongdoing? such an approach would enable the shallow capacity theory to account for the exculpatory pull of such cases. eugene schlossberger has attempted to do so.84 treating the phobic as morally responsible, schlossberger argues that the phobia means that what the agent is morally responsible for is less blameworthy. this is so, schlossberger argues, because of the positive moral features of the intelligible reasons for which the phobic agent acts, as is the case with certain instances of duress. his example is that of a snake phobic who will not pick up a friend’s pet garter snake as it escapes past his feet. schlossberger argues that for the non-phobic, picking up the snake is a minor inconvenience, whereas for the phobic, so doing may involve great personal cost in overcoming the aversion. exculpation is therefore appropriate. this example is convincing because schlossberger chooses it well: arguably, the discomfort of overcoming the aversion can be weighed morally against the loss of the snake. however, if one imagines that the snake phobic is an immunised mother who fails to rescue her nonimmunised child from a room containing a poisonous snake, the same conclusion cannot be reached. the blameworthiness of the failure to rescue the child is undiminished because no amount of discomfort has moral weight compared to the interests of the child. as we have seen, the same goes for the other examples above: the intoxicated child molester and the drug addict act for bad, albeit intelligible, reasons. excuses are not available to such agents. if exculpation is to be found, it is in the context of exemptions, or not at all. and the shallow capacity theory’s exclusive focus on authorship and rationality means exemptions are not available. unlike the shallow capacity theory, a theory of moral responsibility that acknowledges the necessary role of the capacity for self-control can cope with the exempting effect of the above examples in a way that chimes with intuition. accepting that the involuntarily drunk, drug addicted and phobic 84 above n 3, at p 153. capacity, moral responsibility and the criminal law 62 agent is normally the intelligible author of her actions, such a theory nevertheless exculpates in the form of a full or partial exemption when the agent’s capacity for self-control is sufficiently compromised by the effects of alcohol, addiction or phobia. the capacity for self-control is compromised in such cases because involuntarily intoxicated and addicted and phobic agents are not, for various reasons, fully cognitively or emotionally healthy; specifically, these conditions (temporary or otherwise) have direct implications for the psychological processes that govern or underpin the exercise of self-control. such implications take different forms: where alcohol is concerned it consists of the weakening of those mental faculties of inhibition,85 where addiction is concerned, it consists of the powerful cognitive focus on consumption generated by the addiction,86 where phobia is concerned, it consists of intense and irrational emotion generating a powerful avoidance reaction.87 such effects should not be confused with the fundamental incapacity for intelligible action of the infant or the paranoid schizophrenic: as argued above, the involuntarily drunk, addicted and phobic agent’s behaviour remains rational, that is based on an intelligible interpretation of, and response to, her situation. in these cases, the problem is elsewhere, in the form of specific difficulties for the successful exercise of the agent’s capacity for self-control. now these difficulties may also be a form of irrationality, but if so, they are of a particular kind, fundamentally different to the core irrationality of the insane or core non-rationality of the infant. in turn, their presence frees the person from the standards of self-control we expect from the sober, addiction free and emotionally healthy. however, whether, and the degree to which, exemption is appropriate in such cases will depend on the intensity or degree of the compromising or burdening effects of the potentially exempting factor.88 cases of involuntary intoxication, drug addiction and phobia may be contrasted with provocation where the anger experienced as a result of the provocation is appropriate and proportionate, and the agent’s capacity for selfcontrol, specifically her ability to exercise input control over the emotion and output control over behaviour, is intact.89 this is why the law commission’s 85 see, for example, mark t fillimore and jessica weafer “alcohol impairment of behavior in men and women” (2004) 99 addiction 1237. 86 morse, above n 79. 87 susan nolen-hoeksena abnormal psychology (mcgraw-hill, 3rd edn, 2004) p 170. 88 wallace offers an explanation of how to conceptualise that intensity in “addiction as defect of the will: some philosophical reflections”, above n 2. so does morse, see above n 79. 89 this may be contrasted with those suffering from phobias, where input control over the emotion of fear has been more or less lost. http://www.ingentaconnect.com/content/external-references?article=0965-2140(2004)99l.1237[aid=7851727] the denning law journal 63 proposals for reform of the defence of provocation are correct to require that the agent be of “ordinary temperament”.90 but the potential for excuse in instances of provocation is merely a feature of a more general truth about the manner in which moral judgment and blame function in the context of any kind of test of an agent’s capacity for self-control. this is that we expect cognitively and emotionally healthy agents to exercise self-control in the face of a range of phenomena that tempt the agent to act against her better judgment, and we judge those who have failed to exercise self-control in the expected manner more or less harshly. in turn, we exempt from that expectation those we know to be insufficiently emotionally and cognitively healthy, as can be the case with the involuntarily drunk, addicted and phobic agent. the overarching argument for the above approach to moral responsibility lies in a vision that treats agents as fully morally responsible only when their capacity to control their actions in light of their better judgment is more or less intact. this vision conceives of moral responsibility as requiring agents who are more than passive, albeit intelligible, reactors to the world, but meaningful and creative contributors to the world. the existence of the capacity to evaluate normatively and develop conceptions of the good, and then to control conduct in light of those conceptions, lies at the heart of that type of meaningful and creative interaction. in turn, when the agent’s capacity for self-control, and hence her capacity for such interaction, is severely compromised, as it can be in the instances outlined above, then the agent’s moral responsibility has also been compromised. unlike the shallow capacity theory, therefore, a theory that recognises that possession of the capacity for self-control is a necessary condition of moral responsibility does not limit the notion of exemption to denials of authorship or core rational capacity: it includes a third kind of exemption turning on the compromise of the agent’s capacity for self-control. i will now turn my attention to the implications of this argument for the criminal law. impaired self-control: the need for a new criminal law defence english criminal law does not include a distinct defence based on the impairment of self-control. involuntary intoxication, drug addiction and phobias are acknowledged only to the extent that they negate mens rea or fall 90 agents who have specific and medically recognized difficulties with anger, for example those suffering from borderline personality disorder, may also be considered as having an impaired capacity for self-control. they are therefore suitable candidates for the diminished responsibility defence, as well as a more general defence of radically impaired self-control, the need for which i describe in the next sub-section of this article. capacity, moral responsibility and the criminal law 64 within the diminished responsibility defence. however, involuntary intoxication and the like will not always negate mens rea: the case of kingston,91 discussed above, is an example. furthermore, diminished responsibility is a defence confined to murder.92 as a result, criminal law commentators who recognise that imposing criminal liability in such cases is problematic have argued that there is a gap in the lexicon of criminal law defences.93 the question is how should such a new defence be conceptualised, and hence accommodated, by the criminal law? my aim in this part of the article is to show that the self-control theory offers a way to conceptualise such defences that is superior to the shallow capacity theory. its superiority is due to the shallow capacity theory’s insistence, once the agent is author of her wrongdoing, that all denials of moral responsibility take the form of denials, at the time of wrongdoing, of the agent’s core capacity for rational or intelligible action. this is too narrow an approach. this excessive narrowness can be illustrated with gardner’s account of the partial defence of diminished responsibility, and how he distinguishes that defence from the partial defence of provocation, because his argument is informed by the shallow capacity theory.94 gardner argues that all excuses are cases of what he terms “indirect rational explanation.”95 this means the agent does not directly justify her wrongdoing, which remains irrational, but rather the beliefs, emotions or desires that led to it. thus provocation excuses when the wrongdoer can point to intelligible and good reasons for her anger. in keeping with the shallow capacity theory, it is a purely evaluative approach that focuses on the moral quality of the agent’s rational reasons for feeling as she does. in turn, according to gardner, the way that provocation differs from diminished 91 above n 76. 92 homicide act 1957 s 2. 93 bob sullivan “making excuses” in harm and culpability above n 8, pp 131-152 and victor tadros “the characters of excuse” (2001) 21 oxford journal of legal studies 495-519. these commentators argue that such cases should be based on the notion of “lapse of character”. i believe the character theory of moral and criminal responsibility is flawed, but this is not the place to explore its defects. lacey, who has also acknowledged the need for such defences, calls such cases “situations of blocked evaluation.” lacey’s approach appears to have something in common with the selfcontrol theory, because she expresses a preference for treating such cases as involving the removal of, or interference with, “the normal reasoning processes”, see above n 11 at p 121. 94 it is worth noting that gardner is talking about diminished responsibility where agent has been provoked, as opposed to a general analysis of the defence of diminished responsibility. 95 see “the mark of responsibility” above n 13, at 158. http://www.ingentaconnect.com/content/external-references?article=0143-6503(2001)21l.495[aid=7851728] http://www.ingentaconnect.com/content/external-references?article=0143-6503(2001)21l.495[aid=7851728] the denning law journal 65 responsibility is that, with diminished responsibility, there is no rational explanation for the agent’s anger, as well as the actions that flow from it. the rationality defect goes “all the way down”.96 in other words, the agent is fundamentally incapable of intelligible action, and as a result a partial exemption, and hence partial defence, is appropriate. with provocation, however, the rationality defect is confined to the action itself, but not the anger upon which it is based, which remains, at the very least, partially justified.97 the fact of, at the very least, partial justification means that the agent is not denying her moral responsibility, but actually asserting it.98 at first blush, it is hard to see how gardner’s approach is compatible with the notion of partial responsibility. if the rationality defect with diminished responsibility goes all the way down, why isn’t a full exemption, and hence a full defence, appropriate? this objection is perhaps dealt with by treating irrationality as a matter of degree, as is the case with children as they progress toward adulthood, and treating the agent’s anger as only partially irrational. however this is an awkward solution and, in any event, not one advanced by gardner, who always talks of the required irrationality in absolute terms. furthermore, this response only deals with the notion of partial responsibility within gardner’s rationale, and that rationale is incomplete. to explain why, we must turn our attention to the phenomena of the previous subsection. where involuntary intoxication and drug addiction are concerned, as i have argued above, the agent’s assessment of, and response to, her situation will often remain rational. for such agents, the problem is not the fundamental incapacity for intelligible action that gardner describes, but acute difficulties in controlling behaviour in accordance with better judgment. thus gardner’s rationale cannot account for the exempting power of these phenomena. the phobic wrongdoer falls more plausibly into gardner’s rationale because, arguably, the rationality defect does go all the way down in such cases: an irrational action out of an irrational fear, that is to say flight or avoidance when there is no real danger. but this congruence is superficial, because, as we have seen, the decision not to experience the effects of the phobia is rational, even if the fear is not. this can be distinguished from anger in the context of diminished responsibility, where the action that flows from the anger is contaminated by the irrationality of the emotion itself, hence the plausibility of gardner’s approach in such cases. thus gardner’s rationale also fails to account for the exempting effect of phobias. furthermore, and equally importantly, gardner’s approach arguably will exempt on certain occasions when exemption is not appropriate. even if the emotion, be it fear 96 “no provocation without responsibility…”, above n 13, at 214-215. 97 ibid, at 214. 98 ibid, at 215. capacity, moral responsibility and the criminal law 66 or anger, is irrational and in some sense leads to irrational action, no exemption, and hence no defence, should be available if the anger or the symptoms of phobia are nevertheless relatively mild. this is because, if they are mild, the agent is expected to exercise self-control over her conduct, and thus avoid any wrongdoing. thus the shallow capacity theory, with its exclusive focus on the agent’s core capacity for rational action, is not equipped to deal with why and how we exempt in cases of involuntary intoxication, drug addiction and phobia. this is because whether an exemption, full or partial, should be allocated to the involuntarily drunk, addicted or phobic agent cannot be decided in terms of her capacity for rational action, but must be ascertained in terms of how difficult it is for such an agent to exercise self-control successfully. thus, for example, if the agent is not that intoxicated, or the drug addict’s cognitive focus on consumption is not that intense, no exemption should be available. the self-control theory therefore offers a model for understanding when a partial or even a full exemption, and hence defence, is appropriate, and when it is not, in the form of the intensity or severity of the factor compromising the exercise of self-control. the shallow capacity theory, given its rejection of the relevance of self-control, has no sense of this ‘difficulty’, with the notable consequence that it runs the risk of exempting when it should not simply because irrational behaviour is linked in some way to an irrational emotion. thus the criminal law should create a new defence based on the notion of radically impaired self-control. i do not propose to analyse the exact form such a defence should take, or whether it should result in a complete acquittal or a special verdict of some description, the latter perhaps leading to civil commitment procedures where there is a danger to the public.99 i also acknowledge that the administration of such a defence raises issues over the allocation of the burden of proof, and also important forensic questions. suffice to say for present purposes is that, if the criminal law wishes to reflect accurately the moral culpability of agents, the self-control theory reveals that there is a need in the criminal law for a defence based on the notion of radical impairment of the agent’s capacity for self-control. conclusion in conclusion, i would like to make some general comments about the fundamental nature of the conflict between the shallow capacity theory and the self-control theory. this conflict, i believe, is a conflict over how 99 it is worth noting that the defence would resemble the law commission’s recent proposal for the amendment of the diminished responsibility defence, though it would have wider application: see above n 24, para 5.112, specifically (a)(iii). the denning law journal 67 profound the judgement of blame should be. the self-control theory accepts that blame for wrongdoing is, as wallace puts it, “a form of deep moral assessment that goes beyond mere evaluative description of what the agent has done.”100 the problem with the shallow capacity theory is that it does not look beyond the agent’s raw capacity for intelligible motivation, with the allocation of excuses dependent on the moral quality of that motivation. the problem is that, if blame is to have depth, it must be based on more than a capacity for intelligibility and consequent pejorative description of the values expressed by the agent’s wrongdoing: it must also pre-suppose an agent who is, in some sense, in control of her conduct in a way that is meaningful. and if this is so, moral responsibility requires more than a mere capacity to conduct oneself in an intelligible fashion.101 this something more takes the form of the capacity for self-control. it is this capacity that gives human agents a unique form of dignity. it is from this dignity that blame for wrongdoing derives the depth that i believe is central to its identity as a form of moral judgment. but i appreciate that this requires much more justification. 100 responsibility and the moral sentiments (cambridge, mass: harvard university press, 1996) p 75. 101 the idea that moral responsibility requires more than exhibiting phenomena capable of being labelled as bad is to be found in work by the following authors: wallace ibid; s wolf freedom within reason (oxford: oxford university press, 1990); m j zimmerman “responsibility regarding the unthinkable” (1995) 20 midwest studies in philosophy 204-223 at 213-215; j a montmarquet epistemic virtue and doxastic responsibility (lanham, md: rowman & littlefield, 1993) pp 68-69; and j sabini and m silver, “emotions, responsibility and character”, in schoeman (ed) responsibility, character and the emotions: new essays in moral psychology above n 30, pp 165-175. zimmerman has pointed out in a criticism of schlossberger that there is a difference between moral responsibility and exhibiting phenomena capable of moral evaluation (p 213). capacity, moral responsibility and the criminal law 68 the principal aim of this paper has been to outline two fundamental flaws with a theory that treats possession of the capacity for self-control as irrelevant to moral responsibility for wrongdoing, and thereby demonstrate the superiority of a theory that recognises that possession of such a capacity is a necessary condition of moral responsibility. a full exploration of the exact nature of this capacity for self-control, and a full defence of why its possession is a necessary condition of moral responsibility for wrongdoing, is a project for another time. unincorporated associations: property holding, charitable purposes and dissolution 153 denning law journal 2012 vol 24 pp 153-168 case commentary sexual infidelity and loss of self-control: context or camouflage? r v clinton and others james slater  introduction r v clinton and others involved three appeals from trial on various matters concerning the “loss of control” partial defence to murder created by the coroners and justice act 2009 („the act‟). 1 this case commentary is concerned with the appeal of jon jacques clinton, as it addressed the ambit of the act‟s controversial exclusion of sexual infidelity from the grounds upon which a defendant can base her loss of self-control. 2 the court of appeal‟s decision (lord chief justice, henriques j, gloster j) is not uncontroversial itself, since it has significantly reduced the potential ambit of this exclusion. the facts jon jacques and dawn clinton had lived together for 16 years and been married since 2001. the marriage, hampered by severe financial difficulties and a mutual history of depression, was disintegrating despite a desperate desire on behalf of mr clinton for it to work. 3 however, mrs clinton had left  ba (sussex), llm (harvard), phd (birmingham), senior lecturer in law, the university of buckingham. i am grateful to professor susan edwards and damian warburton for comments on earlier drafts; the usual disclaimer applies. 1 the defence is called “loss of control” in the heading to s 54 of the act, but s 54(1)(a) refers to a requirement for a “loss of self-control [emphasis added]” as one of the necessary conditions of the defence. 2 see, for example, alan reed and nicola wake “sexual infidelity killings: contemporary standardisations and comparative stereotypes” in reed and michael bohlander (eds) loss of control and diminished responsibility (farnham: ashgate, 2011) p 115. see also denis j baker and lucy x zhao “contributory qualifying and non-qualifying triggers in the loss of control defence: a wrong turn on sexual infidelity” (2012) 76(3) journal of criminal law 254. 3 [58]. case commentary 154 the matrimonial home, leaving behind the children from the marriage, and was conducting an affair. as far as she was concerned the relationship was over. on 13 november 2010 mr clinton, previously suspicious that his wife was having an affair, was informed by her of her extra-marital relationship. this resulted in mr clinton, on the evening of that same day, stealing and vandalising mrs clinton‟s land rover, her most prized possession. on 15 november, the day of the actual killing, mr clinton “tortured himself” by looking at images he found online of his wife in the company of her lover, a mr montgomery, and, at about 12:30 that day, was able to confirm her infidelity by viewing sexual images of his wife with mr montgomery. 4 by the time husband and wife met later, at about 2pm, mr clinton had taken 80mg of codeine and had drunk about a quarter of a bottle of brandy. 5 further drink and codeine was consumed by mr clinton during the highly emotional encounter that followed, which focused on recrimination concerning mrs clinton‟s affair and other extra marital sexual activity. according to mr clinton the encounter was characterised by mrs clinton displaying unprecedented contempt for him, in which she viciously and explicitly taunted him about her sexual activity with 5 other men and cast aspersions on his courage when, having established that mr clinton had looked at suicide websites, stated “you haven‟t got the fucking bollocks”. 6 in addition she displayed indifference to their children in the form of hurtful comments to the effect that she had done her bit where they were concerned and that they were mr clinton‟s responsibility from now on. 7 furthermore, on being reproached by mr clinton about her sexual infidelity on her daughter‟s birthday, mr clinton “heard her kind of snigger”. 8 as a result of this behaviour, mr clinton claimed he went into some kind of altered state; lord judge cj, who summarised mr clinton‟s evidence in delivering the judgment of the court of appeal, said: “...the walls and the ceiling just seemed to close in. she was talking but he could not hear what she was saying. he could see her mouth opening and closing. he could hear a noise, like the distant sea. he wanted everything to stop. he wanted everything to slow down.” 9 it was at this point that mr clinton killed his wife. the police found evidence of the fatal attack in the form of beating (there were head injuries) and strangulation (there was a ligature around her neck). after the killing he removed most of her clothes and took photographs of her 4 [67]. 5 [68]. 6 [68], [72] and [75]. 7 [75]. 8 ibid. 9 [75]. the denning law journal 155 in various positions, which he then sent via text to mr montgomery. 10 he was found by the police in the loft with a noose around his neck attached to the rafters. 11 the law and the decisions in order for the “loss of control” partial defence to reduce murder to manslaughter, there must be a loss of self-control rooted in a qualifying trigger as defined by the act. section 55(4) of the act states that a qualifying trigger is: “...a thing or things done or said (or both) which— (a) constituted circumstances of an extremely grave character, and (b) caused [the defendant] to have a justifiable sense of being seriously wronged.” 12 at trial judge smith, before addressing her mind to the potential presence of this trigger, excluded all the evidence relating to sexual infidelity in the name of s 55(6)(c) of the act, which states: “in determining whether a loss of self-control had a qualifying trigger— (c) the fact that a thing done or said constituted sexual infidelity is to be disregarded.” judge smith then considered whether the additional explanations for mr clinton‟s loss of self-control, which were mrs clinton‟s contempt for his supposed lack of courage to commit suicide and her indifference to the children, satisfied the requirements of s 55(4). she was concerned with this question because s 54(6) of the act stipulates that the judge must be persuaded, before allowing the jury to consider the defence, that evidence has been adduced such that a “jury, properly directed, could reasonably conclude that the defence might apply”, including, therefore, whether evidence has been adduced to enable a jury reasonably to conclude that a qualifying trigger is operative. thus the presence of a qualifying trigger is made subject to 10 [54]. 11 [53]. 12 this is not the only matter defined by the act as a qualifying trigger: s 55(3) refers to “fear of serious violence from [the victim] against [the defendant] or another identified person.” furthermore, s 55(5) allows a qualifying trigger to be made up of a combination of the matters mentioned in s 55(3) and (4). case commentary 156 control not only, axiomatically, by the jury when deciding whether certain facts meet the statutory definition of a qualifying trigger, but also, as a result of s 54(6), by the judge in the form of a preliminary filter to ensure that claims of loss of self-control are not improperly put to the jury. judge smith concluded that a jury, properly directed, could not reasonably conclude that the defence might apply once she had excluded the evidence of sexual infidelity; as a result, she removed the defence from the jury‟s consideration and mr clinton was convicted of murder. on appeal, lord judge cj acknowledged that if mrs clinton‟s sexual infidelity and her references to it had to be ignored under section 55(6)(c), then judge smith‟s decision to withhold the defence from the jury under s 54(6) “was unassailable”. 13 thus it was agreed that no jury could reasonably conclude that mrs clinton‟s comments about mr clinton‟s lack of courage to commit suicide and his having to look after the children could, together, constitute “circumstances of an extremely grave character” and could cause mr clinton “to have a justifiable sense of being seriously wronged”. however lord judge cj rejected judge smith‟s exclusion of sexual infidelity for the following reason: “however, to seek to compartmentalise sexual infidelity and exclude when it is integral to the facts as a whole ....... is unrealistic and carries with it the potential for injustice. ...in our judgment, where sexual infidelity is integral to and forms an essential part of the context in which to make a just evaluation whether a qualifying trigger properly falls within the ambit of sub-ss 55(3) and (4), the prohibition in s 55(6)(c) does not operate to exclude it.” 14 as a result of what shall be termed the contextual approach, lord judge cj concluded that judge smith had “...misdirected herself about the possible relevance of the wife‟s sexual infidelity”. 15 in light of this, he also concluded that “the totality of the matters relied on as a qualifying trigger, evaluated in the context of the evidence relating to the wife‟s sexual infidelity, and examined as a cohesive whole, were of sufficient weight to be left to the jury”. 16 he therefore ordered a retrial. in so doing, lord judge cj confined s 55(6)(c) to those occasions when the defendant seeks to rely exclusively on sexual infidelity as the explanation for a loss of self-control. his lordship 13 [77]. 14 [39]. 15 [77]. 16 ibid. the denning law journal 157 found support for this conclusion in statements to the same effect made by government spokespersons in the parliamentary debates. 17 thus the effect of sexual infidelity as context is that it is no longer excluded by s 55(6)(c) and, once admitted, can convert evidence insufficient to satisfy s 55(4)‟s demanding definition of a qualifying trigger into evidence that is sufficient. this potential of sexual infidelity, when conceived as „contextual‟, to supplement and reinforce factors not caught by s 55(6)(c) so that the evidence as a whole constitutes a qualifying trigger means that sexual infidelity can, on occasion, become part of the make-up of a qualifying trigger despite s 55(6)(c). 18 this commentary will argue that his lordship was wrong to adopt the contextual approach for 3 reasons. before outlining these reasons, it is necessary briefly to discuss a point of clarification made by lord judge cj concerning in what ways, if at all, s 55(6)(c) embraces verbal references to sexual infidelity, in addition to acts of sexual infidelity. “thing done or said” section 55(6)(c) presents many difficulties of interpretation, as noted by lord judge cj. 19 one particular difficulty is how “a thing...said”, as opposed to “a thing done”, can constitute sexual infidelity. 20 this issue was pertinent to clinton because mr clinton sought partly to rely, in explaining his loss of self-control, on his wife‟s taunting regarding her sexual activity with other men. it is arguable that such taunts are not excluded from being a qualifying trigger by s 55(6)(c) because they do not constitute a form of sexual infidelity, but merely refer to it. such a literal approach to the provision would confine it 17 [40] to [44]. these statements are from angela eagle on 3 march 2009, claire ward on 9 november 2009 and lord bach on 26 october and 11 november 2009. they can be found at www.parliament.uk. 18 lord judge cj cites an example at [24]: he refers to a history of physical abuse followed by a taunt of sexual infidelity: the sexual infidelity would be considered “the final straw” according to lord judge cj. lord judge cj also states that the sexual infidelity in this case would enable the defence to be available even when the previous abuse alone would not be enough. for further discussion of this example, see n 27 below and associated discussion in the text. 19 counsel for the crown described the provision as “formidably difficult”, counsel for clinton as “extremely ill drafted”. (i am indebted to counsel for the crown, andrew edis qc, and counsel for clinton, michael birnbaum qc, for sending me their skeleton arguments, which were very helpful in my research for this case commentary.) lord judge cj acknowledged the difficulties of interpreting the provision at [14]. 20 this difficulty has been noted by david ormerod: see smith and hogan’s criminal law (oxford: oxford university press, 13 th edn, 2011) p 521. case commentary 158 to those occasions, perhaps rare, where the words used are in fact a form of sexual interaction, for example „phone sex‟ and words of a sexual nature uttered during sexual activity. however, where “a thing...said” is concerned, lord judge cj did not adopt a literal approach. stating that confining the ambit of the provision to “words spoken to his or her lover by the unfaithful spouse or partner during sexual activity” would be “unrealistic”, 21 he gave the provision a wider meaning, stating: “in our judgment things „said‟ includes admissions of sexual infidelity (even if untrue) as well as reports (by others) of sexual infidelity”. 22 as a result, according to lord judge cj, mrs clinton‟s taunts regarding her sexual infidelity, true or otherwise, are, subject to the contextual approach, embraced by the s 55(6)(c)‟s exclusion of sexual infidelity, in addition to her affair. this broader view of the range of behaviour embraced by s 55(6)(c) must be correct, since it would be both illogical and impracticable to permit taunts regarding sexual infidelity to constitute a qualifying trigger, whilst simultaneously excluding acts of sexual infidelity. as will be discussed in greater detail below, s 55(6)(c) is targeting a possessive and controlling attitude to sexual partners, and such an attitude is triggered as much by verbal references to sexual infidelity as it is by knowledge of acts of sexual infidelity. however, having decided, correctly, that the exclusion embraces references to sexual infidelity in addition to sexual infidelity itself, nevertheless lord judge cj held, as we have seen, that, on this occasion, evidence of such references were admissible, along with the evidence of mrs clinton‟s affair, because he felt that her sexual infidelity, and her references to it, formed part of the context of other factors not excluded by s 55(6)(c). the question is whether this contextual approach is the correct interpretation of s 55(6)(c)? there are three reasons for thinking not. three reasons for rejecting the contextual approach reason 1 for rejecting the contextual approach: a contrasting use of the singular and plural a contrasting use of the singular and the plural within s 55 suggests a literal reason for rejecting the contextual approach. to explain, it is necessary to quote s 55 almost in full: 21 the quotes both come from [26]. 22 [26]. the denning law journal 159 “(2) a loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies. (3) this subsection applies if [the defendant‟s] loss of self-control was attributable to [the defendant‟s] fear of serious violence from [the deceased] against [the defendant] or another identified person. (4) this subsection applies if [the defendant‟s] loss of self-control was attributable to a thing or things done or said (or both) which— (a) constituted circumstances of an extremely grave character, and (b) caused [the defendant] to have a justifiable sense of being seriously wronged. (5) this subsection applies if [the defendant‟s] loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4). (6) in determining whether a loss of self-control had a qualifying trigger— ...; (c) the fact that a thing done or said constituted sexual infidelity is to be disregarded.” it is argued that, given the use of the singular and plural in s 55(4) (“was attributable to a thing or things [emphasis added] done or said (or both)”), a qualifying trigger can be made up of several things said and/or done. furthermore, such things can also be accompanied by fear of serious violence as a result of s 55(5). thus a qualifying trigger can be made up of a multiplicity of factors. attention should now turn to the contrast between the use of the singular and plural in s 55(4) (“thing or things”) and the exclusive use of the singular in s 55(6)(c): “the fact that a thing done or said constituted sexual infidelity is to be disregarded”. the fact that a qualifying trigger can be made up of several elements, and the contrast between the use of the plural in s 55(4) and the use of the singular in s 55(6)(c), would seem to result in the following literal meaning: whether by itself or amongst other factors, sexual infidelity is to be disregarded. this appears to be s 55(6)(c)‟s plain meaning, requiring that sexual infidelity be ignored even when accompanied by other factors. reason 2 for rejecting the contextual approach: the contextual approach as camouflage for avoiding s 55(6)(c) case commentary 160 a closer examination of the outcome of clinton and the implications of the contextual approach reveal that it enables sexual infidelity to act as the main and indeed predominant qualifying trigger despite s 55(6)(c). lord judge cj agreed with judge smith that, by themselves, mrs clinton‟s remarks concerning courage and having to look after the children would not enable a jury reasonably to conclude that s 55(4)‟s definition of a qualifying trigger might apply (“circumstances of an extremely grave character”; “justifiable sense of being seriously wronged”). indeed, as indicated above, he described her decision to withhold the defence if these were the only admissible taunts as “unassailable”. 23 this must be correct: such taunts, though hurtful and mildly humiliating, are not even close to satisfying the language of s 55(4). in light of this and the fact that the most prominent feature of mr clinton‟s narrative was his wife‟s sexual infidelity, it is clear that, where s 55(4) is concerned, lord judge cj saw sexual infidelity performing the predominant normative work at mr clinton‟s retrial. thus, though the language of „context‟ implies the framing of other factors that themselves are central, the contextual approach as applied in clinton means sexual infidelity can be the principal reason for the presence of a qualifying trigger despite s 55(6)(c). 24 it therefore turns out that the contextual approach is not „contextual‟ at all. furthermore, where the result in clinton is concerned, a form of alchemy is occurring: factors that it is agreed are not even close to satisfying the language of s 55(4) are combining with a factor that s 55(6)(c) states should be disregarded so that, as whole, s 55(4) may be satisfied. this is strange to say the least. if the contextual approach is taken to its logical conclusion, it would merely require that the sexual infidelity be accompanied by any reason, however morally trivial, that may have played some part in the loss of selfcontrol. thus where a pattern of sexual infidelity was accompanied by some minor taunt about missing a party at the in-laws, the mere presence of the taunt would overcome the exclusion contained within s 55(6)(c). given the multi-faceted nature of the breakdown of the vast majority of relationships, such that losses of self-control purely on the basis of sexual infidelity are likely to be rare, such an approach would amount to a cynical avoidance of the letter and spirit of s 55(6)(c). 25 indeed it would undermine any purpose the 23 see n 13 above. 24 as also pointed out by baker and zhao: see n 2 above at 265 (where they describe the sexual infidelity in clinton as the “dominant contributory trigger”) and 266 (where they describe the sexual infidelity in clinton as the “overriding trigger”). 25 thus i largely agree with the following statement of nicola wake, also made in light of the complexity of the breakdown of relationships: “it is difficult to see when „sexual infidelity‟ will be the only element to be relied on in support of a qualifying the denning law journal 161 act could have in excluding sexual infidelity from consideration. yet there is nothing in lord judge cj‟s judgment to prevent this approach being adopted. an alternative and perhaps more acceptable way of conceiving the contextual approach would be to require that the non-sexual elements play the predominant role in ascertaining the presence of a qualifying trigger, with sexual infidelity merely tipping the balance so to speak. thus though the nonsexual elements might fall short of completely satisfying the normative benchmark established by s 55(4), the contextual approach so conceived would demand that they go some significant way in doing so in order to admit the sexual infidelity. thus when the other reasons for losing self-control do not have such moral merit, the sexual infidelity would be caught by s 55(6)(c). however this approach would require judges (under s 54(6)) to exercise a further layer of normative judgment where the defence is concerned, introducing more discretion and complexity to a defence already requiring a subtle mix of normative judgment and psychological insight. given that the contextual approach thus involves either a somewhat cynical avoidance of s 55(6)(c) or, if not, adds even more complexity to an already highly complex defence, it is submitted that, for these reasons too, the contextual approach should be rejected. reason 3 for rejecting the contextual approach: the functions of sections 55(4) and 54(1)(c) in order to outline the third and final reason for rejecting the contextual approach, it is first necessary to explain the contrasting roles played by ss 55(4) and 54(1)(c) of the act. as we have seen, s 55(4), in defining a qualifying trigger, requires that the defendant has lost self-control for reasons that satisfy certain normative criteria (“circumstances of an extremely grave character”; “justifiable sense of being seriously wronged”). on the other hand, s 54(1)(c) focuses on the exercise of the psychological faculty of self-control, withholding the defence unless “a person of [the defendant's] sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of [the defendant], might have reacted in the same or in a similar way to [the defendant]”. this latter provision is concerned with the defendant‟s management of his emotions and actions at the moment of killing, imposing a standard based on “normal” levels of tolerance and self-restraint, and withholding the defence if that standard is not met. two examples are suggested to illustrate its function, both of these accepting an actual loss of self-control due to a qualifying trigger. first, the time between the final „triggering‟ act and the act of killing may be trigger.” see wake “loss of control beyond infidelity” (2012) 76(3) journal of criminal law 193 at 196. case commentary 162 of a length and nature such that the defendant can be expected to have exercised of self-control despite the moral gravity of the provocation. second, the nature of the relationship between victim and defendant, say that of a mother and her son, may be such that self-restraint is to be expected however morally grave the „trigger‟ leading to the loss of self-control. lord judge cj argues that s 54(1)(c), by omitting any reference to sexual infidelity, allows for the jury to take account of sexual infidelity in assessing whether self-control should have been lost, and considers this “counter intuitive” when, on one view, the jury are simultaneously forbidden from considering sexual infidelity when addressing the question of a qualifying trigger. 26 the contextual approach thereby (partially) avoids this odd possibility. however this counter intuitivism disappears when the different roles played by ss 55(4) and 54(1)(c) articulated above are focused on. an example given by lord judge cj to demonstrate the need for the contextual approach can, ironically, be used to demonstrate this. the example concerns a wife who has been physically abused by her husband over a long period; during the course of another beating at his hands, he taunts her for the first time about various acts of sexual infidelity, as a result of which she snaps and reacts with fatal force. 27 on the basis that the abuse by itself is insufficient to constitute a qualifying trigger, lord judge cj argues that, in this case, the taunts of sexual infidelity should enable the finding that a qualifying trigger is in place, stating: “yet in the real world the husband‟s conduct over the years, and the impact of what he said on the particular occasion when he was killed, should surely be considered as a whole”. 28 but what lord judge cj has lost sight of is that s 55(4) is a purely normative test not necessarily concerned with the exact moment self-control was lost: what it asks for is a reason for the loss of self-control that survives certain normative filters, with s 55(6)(c) forbidding the use of sexual infidelity in this regard. in his example, the acts of physical abuse satisfy those filters; indeed, it is hard to see what additional normative impact the taunt would have relative to that physical abuse. 29 however, the fact that the loss of self 26 [32]. baker and zhao have argued that lord judge cj‟s concern with regard to this point is misplaced since the jury will not be considering s 54(1)(c) unless they are satisfied a qualifying trigger is in place, and, if the only „trigger‟ is that of sexual infidelity, then the absence of a qualifying trigger means there is no need to consider s 54(1)(c): see n 2 above at 270. however this is not strictly correct as there may be a qualifying trigger not linked to sexual infidelity, and yet the question of sexual infidelity can still arise under s 54(1)(c) because it played a role in the loss of selfcontrol. 27 [24]. 28 ibid. 29 lord judge cj acknowledges, ibid, that such abuse in a different case to his example could constitute a qualifying trigger, but says it would not do so in his the denning law journal 163 control in his example would not make sense without the sexual taunt can be addressed under s 54(1)(c), by (perhaps) helping to explain why “a person of [the defendant's] sex and age, with a normal degree of tolerance and selfrestraint and in the circumstances of [the defendant]”, would have lost selfcontrol at the moment of killing. thus the psychological impact of sexual infidelity is admissible under s 54(1)(c) in assessing the defendant‟s exercise of self-control, but should not be considered when assessing the presence of a qualifying trigger. what the above example reveals is that a loss of self-control will occur at a particular moment in time but the reasons for that loss of self-control can occur over a period of time and operate cumulatively. when presented with such a situation, the judge under s 54(6) will not only have to decide whether any of those reasons might reasonably satisfy s 55(4), but will also have to decide whether the reasons so identified played a sufficient role in explaining the loss of self-control. however, unlike the normative judgment articulated above as part of reason 2 for rejecting the contextual approach, this exercise of judgment is unavoidable given there will often be many reasons for a loss of self-control. however, after at least one reason has been found that both plays a sufficient role in explaining the loss of self-control and satisfies s 55(4), s 54(1)(c) becomes relevant, at which point sexual infidelity can play a role in assessing the exercise of self-control. this is a perfectly workable arrangement and not in the slightest bit counter intuitive. thus, under this arrangement, the defence would certainly fail in clinton but perhaps succeed in lord judge cj‟s example. as such one of lord judge cj‟s reasons for the contextual approach disappears, again favouring the compartmentalisation and exclusion of sexual infidelity where the question of a qualifying trigger is concerned. the three reasons articulated above against the contextual approach are not concerned with the more fundamental question of whether the defence would be improved if s 55(6)(c)‟s prohibition of sexual infidelity was repealed tout court. it is to this question that attention will now turn in the final part of this case commentary. the merit of excluding sexual infidelity section 55(6)(c) is concerned with a complex moral problem, which is the moral significance of sexual infidelity and violent reactions to it. given this complexity, the language of s 55(6)(c), which, when interpreted literally, creates a rule removing sexual infidelity from the equation without exception, example because the wife would have continued to endure it but for the sexual taunts. however, the fact that she personally would have endured the abuse has no bearing on its normative significance and ability to satisfy the language of s 55(4). case commentary 164 perhaps does risk injustice. however, ascertaining whether injustice is indeed risked requires an exploration of the moral significance of violent reactions to sexual infidelity. two schools of thought can be identified where that moral significance is concerned. for some, violence as a result of sexual infidelity is a moral evil and a manifestation of a wider problem concerning the male use of violence against female partners. this violence is seen as an exercise in control that denies the identity of the woman and reduces her autonomy in the name of her male partner‟s interests; to use the phrase of leila tov-ruach, it is designed to secure a woman‟s “unconditional, unjudgmental attentive acceptance”. 30 thus, according to this school of thought, violence triggered by real and/or imagined sexual infidelity is rooted in a deeply problematic attitude to women. for this reason, the legal system has sought, at the substantive, procedural and enforcement level, to take the problem of male violence against female partners seriously. 31 section 55(6)(c) is therefore part of an ongoing project of ensuring that such violence is in no way condoned or excused by the legal system, but rather condemned. on the other hand there is another view of sexual infidelity and violence, set out by lord judge cj himself; he states: “nevertheless daily experience in both criminal and family courts demonstrates that the breakdown of relationships, whenever they occur, and for whatever reason, is always fraught with tension and difficulty, with the possibility of misunderstanding and the potential for apparently irrational fury. meanwhile experience over many generations has shown that, however it may become apparent, when it does, sexual infidelity has the potential to create a highly emotional situation or to exacerbate a fraught situation, and to produce a completely unpredictable, and sometimes violent response. this may have nothing to do with any notional „rights‟ that the one may believe 30 “jealousy, attention, and loss” in amelie o rorty (ed) explaining emotions (berkeley: university of california press, 1980) p 483. in much the same vein, margo wilson and martin daly state: “...violence against wives is a product of self-interested male motives directed at constraining wives‟ autonomy by „encouraging‟ them to prioritize their husband‟s wants rather than their own”; see wilson and daly “lethal and nonlethal violence against wives and the evolutionary psychology of male sexual proprietariness” in r e dobash and r p dobash (eds) rethinking violence against women (thousand oaks, ca: sage, 1998) p 199. 31 see, for example, chapter 4 “domestic violence” in s harris-short and j miles family law: text, cases and materials (oxford: oxford university press, 2 nd edn, 2011) p 203. the denning law journal 165 that he or she has over the other, and often stems from a sense of betrayal and heartbreak, and crushed dreams.” 32 this second school of thought acknowledges that a man or woman can be driven to morally legitimate anger and despair by a campaign of sexual betrayal, taunting and humiliation. on such occasions, sexual infidelity is a morally significant betrayal of trust with traumatic psychological effects that can, on occasion, partially excuse even fatal violence. 33 though the first school of thought will almost always be the correct assessment of violence in response to sexual infidelity, there will remain some situations where the second is true. in light of this, the problem with s 55(6)(c) is that, interpreted in its most far reaching form, it will prevent the court from considering sexual infidelity even in situations reflecting the second school of thought. 34 thus it would be arguably just to repeal the sub-section so that cases involving sexual infidelity became eligible for consideration under s 55(4). it would then be hoped that, given the very high moral standards articulated by s 55(4) (“extremely grave character‟; „justifiable sense of being seriously wronged”), judges (under s 54(6)) would only let juries consider the defence, and juries will only let the defence succeed, when the sexual infidelity under consideration reflected the second school of thought. however, once the door to sexual infidelity is opened, there is the danger of drift towards the acceptance of unmeritorious cases. 35 arguably clinton is an example of such drift, as it is not clear how mrs clinton‟s sexual infidelity, when added to her contempt for mr clinton‟s lack of courage to commit 32 [16]. 33 for an articulation of this argument see reed and wake “sexual infidelity killings....” above n 2, p 128: “...a loss of self-control in response to the actions of a faithless lover, in some cases, has much more to do with the breach of trust involved, and serious relationship violation, rather than proprietorial instinct.” 34 jeremy horder comments on the dangers of a blanket prohibition where sexual infidelity is concerned in a discussion of clause 46(6)(c), the identical provision from the coroners and justice bill: see his memorandum to the house of commons (coroners and justice bill, committee stage, 3 february 2009, cj 01). horder states: “one of the difficulties about being „absolutist‟ in this area is that one prevents the jury hearing rare meritorious cases.” 35 an example of such drift can be found in the behaviour of the judge at first instance in davies (1975) qb 691, who left the common law defence of provocation to the jury in an instance of a killing motivated by the victim‟s infidelity to her husband, the defendant. the jury nevertheless correctly convicted of murder. on appeal, lord widgery cj‟s described leaving the defence to the jury as being “too generous” (see 702). in ibrams (1982) 74 crim app r 154 the decision to leave the defence to the jury at first instance in davies was endorsed as “over-lenient” by lawton lj (see 159). see also the discussion at n 39 below. case commentary 166 suicide and her indifference to the children, could, as a whole, satisfy the normatively exceptional language of s 55(4). after all, there was nothing exceptional about the clintons‟ breakup, sexual infidelity or otherwise. indeed, when a more global approach to the evidence in clinton is taken, it emerges that there was evidence that mr clinton‟s attitude to his wife was coloured by the defects of the first school of thought outlined above. the attack on mrs clinton‟s land rover was a vengeful and vindictive attack in light of the discovery of her association with mr montgomery; after a visit to relate on the 13 th of november, mr clinton showed her a note that he had written on his computer that lists, amongst the difficulties between them, “my bullying”; 36 when her interest in him began to wane from march 2010, he suggested she had become “tarty” and “slutty”. 37 at this point, the following observations of samuel h pillsbury on the moral nature of reactions to sexual infidelity are pertinent: “the challenge in modern provocation law is to distinguish between at least two different kinds of provocation-for-infidelity claims—those based on betrayal of a particular, personal trust, and those based on patriarchal rage-at-dispossession. ...imagine a case in which the married partners have made a particularly strong commitment to sexual fidelity. perhaps one partner has suffered in the past from a lover‟s infidelity and made fidelity a special requirement of the current relationship. in this case discovery of adultery may support great rage. but in other cases we may read rage at infidelity less as an expression of moral betrayal and more as an assertion of a man‟s (or in some instances a woman‟s) need to posses and control a partner. we need to look at the whole context of the relationship and especially the state of the relationship prior to the infidelity. did the relationship violate a fundamental norm of the partners at the time, or was it just one in a series of mutually hurtful actions in a troubled relationship? did it occur during a separation period or when the bonds of loyalty and partnership were still in force? these are the questions that should predominate...” 38 when these questions are directed at the facts of clinton, it emerges that the moral foundations of mr clinton‟s claim were very weak: as mrs clinton was no longer living with her husband, the bonds of partnership, if not entirely of loyalty, were no longer in force; the emotional difficulties between the 36 [65]. 37 [63]. 38 judging evil: rethinking the law of murder and manslaughter (new york and london: new york university press, 1998) p 150. the denning law journal 167 partners were tangible, not hidden by either partner; a pattern of mutually hurtful actions was in place, not least the vandalising of mrs clinton‟s land rover by mr clinton. when these factors are combined with mr clinton‟s intense focus on making the marriage work in spite of all the evidence, a picture emerges of a man not with a justifiable sense of being seriously wronged, but simply having extreme difficulty with his wife losing interest in, and then leaving, him, all too common occurrences. his was “rage-atdispossession”, to use pillsbury‟s phrase. thus, when the facts are considered as a whole, it becomes very difficult to see how the language of s 55(4) could be satisfied. given that clinton was the first time the court of appeal was addressing the nature of s 55(6)(c) and given that its conclusions were always going to draw attention, the fact that mr clinton‟s case had so little merit does not bode well for the future behaviour of judges under s 54(6). as for juries, perhaps they will be more discerning when considering the presence of a qualifying trigger, but there is evidence that they cannot always be trusted not to accept unmeritorious cases. 39 in light of this danger of drift towards the acceptance of unmeritorious cases, it is submitted that it is best if s 55(6)(c) is left in place. conclusion to conclude, if the contextual approach to s 55(6)(c) is maintained, let us hope judges and juries display the necessary critical thinking so that, once and for all, this partial defence is freed from its association with a sexist vision of the relationship between men and women. the danger is that they will not 39 for an account of the potential of judges and juries to accept unmeritorious cases in instances of male violence against women following infidelity, see horder provocation and responsibility (oxford: clarendon press, 1992) pp 192-194. in this regard the case of mellentin [1985] 7 cr app r (s) 9, cited by horder, is of particular interest. a conviction of manslaughter had been returned for a man who had killed his wife after she had taunted him with regard to his lack of sexual prowess compared to her extra-marital lovers. he appealed against his 5 year sentence, which was reduced to 4 years by the court of appeal. the following observation of russell j, who gave the judgment of the court, is noteworthy: “but later, perhaps inflamed by the drink they had consumed, the couple began to argue and in particular mrs mellentin began to boast about her associations with other men. this of course all comes from the appellant and in the nature of things cannot be corroborated, but we have no reason to suspect that what he ultimately told the police was other than an accurate account of what transpired.” the danger within this last sentence is that the killer‟s account will almost always be the only one available, as was the case in clinton. the possibility for distortion and bias in such accounts is clear. case commentary 168 display the necessary critical thinking, resulting in a drift towards the acceptance of unmeritorious cases. if this occurs, one can see the day coming when s 55(6)(c) will find itself interpreted in the manner of judge smith at first instance in clinton. unincorporated associations: property holding, charitable purposes and dissolution denning law journal 2014 vol 26 pp 170-201 revisiting trustees’ decisions: is pitt v holt the final word on the rule in re hastings-bass? robert pearce∗ introduction not every decision we make is a good one. the power to make decisions includes the power to make bad choices as well as good ones. unless there is some other factor, such as the exercise of undue influence, the overbearing of will through duress, or a mistake, good and bad decisions are equally enforceable in law.1 it might be thought that the same rule applies to decisions made by trustees, even though their decisions generally relate to the interests of the beneficiaries, rather than to their own interests. of course, if the decision is so bad that it amounts to a breach of trust, and loss is thereby caused to the trust fund, then the breach might expose the trustees to liability to the beneficiaries. it was against this background that what became known as the rule in re hastings-bass achieved prominence. a series of first instance decisions permitted trustees in some instances to backtrack on a decision which had unintended effects or consequences. the rule became subject to criticism, and was reviewed by the supreme court in futter v hmrc on appeal from pitt v holt in the court of appeal.2 the decision of the supreme court substantially limits the scope of the rule, and identifies three circumstances where the ∗ professor robert pearce, bcl, ma, hon lld, frsa, professor in law, the university of buckingham. 1 see for instance mulitiservice bookbinding ltd v marden [1979] ch 84 where a businessman made the financially very expensive decision to take out a loan at a high rate of interest with repayments linked to the value of the swiss franc, in effect accepting a “double whammy” of two different ways of reflecting the relatively weak position of sterling. even though the bargain was manifestly disadvantageous to the businessman, the court enforced it because there were no vitiating factors. 2 the court of appeal in pitt v holt [2011] ewca civ 197 heard conjoined appeals from pitt v holt [2010] ewhc 45 (ch) and futter v futter [2010] ewhc 449 (ch). the trustees in both cases appealed to the supreme court which heard a conjoined appeal. although the whole litigation is often cited as pitt v holt, for convenience this article refers to the court of appeal decision as pitt v holt [2011] ewca civ 197 and the supreme court decision as futter v hmrc [2013] uksc 26 . 170 the denning law journal decisions of trustees can be reversed: namely where there has been an operative mistake; excessive execution; or inadequate deliberation. this article explores the three dimensions to the rule in re hastings-bass and identifies a number of difficulties with the decision in futter v hmrc. background the hastings-bass rule the rule in re hastings-bass was heavily used and was described as a “get out of jail free card” or a “magic morning-after pill” because of its utility in reversing the effect of a decision by trustees which had an unintended and undesirable consequence, frequently unforeseen tax liability.3 the rule was most authoritatively described by lloyd lj in sieff v fox4, the last case he heard as a high court judge, with judgment delivered only after his elevation to the court of appeal: "where trustees act under a discretion given to them by the terms of the trust, in circumstances in which they are free to decide whether or not to exercise that discretion, but the effect of the exercise is different from that which they intended, the court will interfere with their action if it is clear that they would not have acted as they did had they not failed to take into account considerations which they ought to have taken into account, or taken into account considerations which they ought not to have taken into account." although re hastings-bass5 was first reported in 1974, it was not until the early 21st century that the rule carrying the name of that case achieved attention. as longmore lj observed in pitt v holt, snell on equity did not contain any substantial discussion of re hastings-bass until a supplement issued between the 30th and 31st editions in 2000 and 2005, and other textbooks show a similar pattern.6 until the conjoined appeals in pitt v holt 3 see lord neuberger, “aspects of the law of mistake: re hastings-bass,” lecture to the chancery bar association conference in london on 16 january 2009, (2009) 15(4) trusts & trustees 189–99. 4 sieff v fox[2005] 1 wlr 3811. 5re hastings bass[1975] ch 25. 6 for instance, there is no reference to re hastings-bass in hudson's equity and trusts second edition in 2001, nor in delany's equity and the law of trusts in ireland in 1996. there is no reference to re hastings-bass in the first edition of pearce and stevens, the law of trusts and equitable obligations in 1995. it was only in the second edition in 1998 that re hastings-bass made its first appearance. that appearance was driven by a reference to the then very recently reported case of scott v national trust, the case in which the national trust’s decision to ban stag hunting 171 beyond pitt v holt and futter v futter all of the cases considering the rule had been at first instance, and there were some problems concerning the scope and effect of the rule. there was some uncertainty as to whether there had to be a breach of trust before the rule could be invoked. it was also unclear whether, when the rule applied, the impugned decision of the trustees was void or merely voidable. lloyd lj was therefore not alone in suggesting in sieff v fox that a review by the court of appeal was desirable. as it happened, he was able to undertake the review himself in pitt v holt. the decision of the court of appeal was appealed to the supreme court, which has given what is widely perceived as putting the rule in re hastings-bass on a short leash. as will be seen, it is too early to say that the rule has been fully brought to heel. the history of the cases the decision of the supreme court in futter v hmrc has been explained and analysed by miguel colebrook in last year’s denning law journal,7 so only a brief resumé of the case is needed. in one of the two conjoined appeals, pitt v holt, a settlement by way of a discretionary trust had been established with the funds received by a seriously injured road accident victim. owing to incorrect tax advice, inheritance tax charges would absorb a significant proportion of the funds on his death; if differently structured, the settlement could have avoided those charges. in futter v futter advancements to beneficiaries had been made by the trustees which it was thought, on the basis of incorrect advice, would not incur a capital gains tax charge because they could be set off against other losses. the trustees in both cases sought to have the transactions set aside using the rule in re hastings-bass. the trustees in pitt v holt also argued that the settlement could be set aside on the grounds of mistake. the trustees’ applications were successful in the high court, but were rejected by the court of appeal. the supreme court, in a judgment given by lord walker with which the other supreme court justices agreed, affirmed the decisions of the court of appeal on the interpretation and application of the rule in re hastings-bass, although it differed from the court of appeal in relation to the issue of mistake in pitt v holt, and on this ground only, allowed the appeal. the supreme court identified three routes by which discretionary decisions of trustees can be challenged. the first is what the court described was challenged. the third edition of moffat, trusts law text and materials, published in 1999, contains a very short reference, but no discussion. 7 miguel colebrook, "get out of jail free" card: the courts' offer of assistance to errant trustees” [2013] denning lj 211-223. 172 the denning law journal as excessive execution, the second inadequate deliberation,8 and the third mistake. the first two are branches of the new rule in re hastings-bass. the third is a separate rule. it is convenient to begin with mistake. mistake the statement of the rule in many cases where it is desired to set aside a decision of trustees, a mistake will have been made. in both pitt v holt and in futter v futter the trustees were acting under a mistake about the tax consequences of their decision, but it was only in the former case that the mistake had been pleaded as a basis for reversing the decision. the court of appeal had rejected the claim on the basis that rescission was possible only where a mistake related to the legal effects of a decision or as to an existing fact basic to the transaction, and not where the mistake related to the consequences of a decision. the view of the supreme court was that voluntary dispositions could be set aside whenever a mistake made it objectively unconscionable or unjust to leave the mistake uncorrected having regard to “its degree of centrality to the transaction in question and the seriousness of its consequences”.9 this test was satisfied in the circumstances of pitt v holt, but since the point had not been raised in the claim there was no need to consider the test in futter v futter. the decision of the supreme court on the issue of mistake is applicable not only to decisions of trustees, but also to other gratuitous dispositions. the relevance of taxation the supreme court took the view that a mistake about the tax consequences of a decision could be a relevant consideration, and this is demonstrated by the view it took of the quality of the mistake in pitt v holt. however, the court indicated that: “had mistake been raised in futter there would have been an issue of some importance as to whether the court should assist in extricating claimants from a tax-avoidance scheme which had gone wrong.... in 8 futter v hmrc [2013] uksc 26 at [60]. these labels for the two branches of the rule were not used by the court of appeal. 9 ibid at [128]. the jersey courts have independently reached a similar conclusion about the test for mistake: re representation r, re s trust [2011] jrc 117; cc ltd v apex trust ltd [2012] jrc 071; re b [2012] jrc 229. 173 beyond pitt v holt some cases of artificial tax avoidance the court might think it right to refuse relief, either on the ground that such claimants, acting on supposedly expert advice, must be taken to have accepted the risk that the scheme would prove ineffective, or on the ground that discretionary relief should be refused on grounds of public policy. since the seminal decision of the house of lords in wt ramsay ltd v irc 10 there has been an increasingly strong and general recognition that artificial tax avoidance is a social evil which puts an unfair burden on the shoulders of those who do not adopt such measures.”11 these remarks about tax avoidance are revealing. it may be true that there is some resentment amongst most taxpayers that the rich are able to adopt tax avoidance measures, which reduce the incidence of taxation, which they would otherwise incur (a resentment which almost certainly predated the ramsay decision). what is more important is that the court has signalled a reluctance to assist in the implementation of these schemes. a light touch on the tiller can be enough to change the direction of even the largest vessel. this was evident in the impact of lord neuberger’s report on superinjunctions.12 in the same way lord walker’s remarks may have been intended to, and are likely to have, the effect of discouraging applications to escape from tax avoidance schemes, which have gone wrong. uncertainty about the criteria the clear statement of principle in relation to mistake is welcome since it resolves some of the problems in making sense of the old authorities.13 however, there is only very limited guidance on how the principle should be applied. the emphasis on ascertaining what is unjust, unfair or unconscionable14 in all the circumstances is uncomfortably reminiscent of the discredited notion of the “new model constructive trust” articulated by lord denning in hussey v palmer15 where he suggested that a constructive trust could arise to give a spouse an interest in the family home owned by the other spouse “whenever justice and good conscience require it.” however, the assertion of a broad discretion chimes with the approach of the supreme court 10 wt ramsay ltd v irc [1982] ac 300. 11 futter v hmrc [2013] uksc 26 at [135]. 12 robert pearce. “privacy, superinjunctions and anonymity, ‘selling my story will sort my life out’” (2011) 23 denning lj 92-130 13 see futter v hmrc [2013] uksc 26at [4]. 14 ibid at [126] 15 hussey v palmer [1972] 1 wlr 1286. 174 the denning law journal in the fen tigers case16 to the use of injunctions to restrain a nuisance and it also echoes the language used in the different context of stack v dowden17 and jones v kernott18 for ascertaining shares in a family home purchased in joint names. richard nolan, writing in the law quarterly review,19 argues that the uncertainty implicit in the use of the open-ended criterion of unconscionability should not be overstated, and that the concept should not be inherently more difficult to implement than the widely used criterion of reasonableness. one of the questions which will arise is how far the courts can provide guidance on what factors are relevant to ascertaining when an injustice would arise from leaving a mistaken decision uncorrected. lord walker believed that "the court cannot decide the issue of what is unconscionable by an elaborate set of rules”20 but by contrast, lord neuberger, in the fen tigers case, said that the existence of a broad discretion “does not prevent the courts from laying down rules as to what factors can, and cannot, be taken into account by a judge when deciding whether to exercise his discretion”.21 lord clarke in the same case also referred to the development of a set of principles to be developed on a case-by-case basis.22 unjust or unfair to whom? lloyd lj in the court of appeal concluded, on his review of the authorities, that a dispositive decision of trustees could only be set aside on the basis of mistake where it would be unconscionable for the recipient23 to retain the benefit. the problem with making the recipient the focus is that, although on occasions the recipient will be aware of the mistake, it is possible for the recipient to be completely ignorant of the misapprehension under which the donor was acting.24 the more general focus of the supreme court on whether it would be objectively unconscionable to leave a mistake uncorrected, and the explicit recognition that the mistake jurisdiction applies 16 coventry v lawrence [2014] uksc 13 at [117]-[123] 17 stack v dowden [2007] ukhl 17 18 [2011] uksc 53 19 nolan, “fiduciaries and their flawed decisions” lqr 2013, 129(oct), 469-473 20 futter v hmrc [2013] uksc 26 at [128]. 21 coventry v lawrence [2014] uksc 13 at [121]. 22 ibid at [171]. 23 pitt v holt [2011] ewca civ 197 at [203] and [210]. 24 in day v day [2013] ewca civ 280, decided by the court of appeal between the court of appeal and supreme court decisions in pitt v holt a voluntary conveyance was set aside on the footing of unilateral mistake, but there was strong evidence that the recipient at the very least knew of the mistake and might have contributed to it. 175 beyond pitt v holt to unilateral mistakes, is therefore appropriate. the effect may be that the protection of the recipient is less explicit, but any prejudice to the recipient must surely be a factor in deciding whether justice requires a mistake to be corrected, and also for deciding the terms upon which any relief can be given. similar account can be taken of the impact upon third parties. operative mistake lord walker was very clear that the jurisdiction to reverse a decision made on the basis of a mistake applied only where there had been an operative mistake as opposed to disappointed expectations or total ignorance. it was therefore important in pitt v holt that the tax implications of the settlement had been considered; had no consideration to taxation been given at all, it could not have been argued that the decision to create the settlement was mistaken even if the tax consequences might have proved disastrous. this may seem harsh, but where such a decision is made by trustees in ignorance the rule(s) in re hastings-bass might offer an alternative route to a remedy. the remarks which lord walker made about the acceptance of a known risk not constituting a mistake are illustrated, although not in the context of tax avoidance, by hsh nordbank ag v intesa sanpaolo spa.25 an italian local authority had entered into an interest rate swap agreement with the defendant bank which was later replaced by another interest rate swap agreement with the claimant bank. the claimant bank’s agreement was held by the italian court of auditors to be beyond the local authority’s powers. the claimant bank sought to recover its position by claiming that the earlier interest rate swap agreement between the local authority and the defendant bank was also beyond the local authority’s powers, that the claimant bank had entered into the novation agreement to replace it under the influence of an operative mistake, and that it was therefore entitled to restitution from the defendant bank. the claimant bank failed to establish that the earlier interest rate swap agreement was void as beyond the local authority’s powers, but burton j held that, even if it had succeeded on this point, there was no mistake. the claimant bank’s official was aware that not all interest rate swap agreements made by italian local authorities were permitted by law,26 and “he was not troubled by any such risk and accepted it.”27 the lack of an operative mistake was also fatal in spaul v spaul,28 a case decided by the court of appeal after futter v hmrc. a company director in 25 hsn nordbank ag v intesa sanpaolo spa[2014] ewhc 142 (comm). 26 ibid at [50]. 27 ibid n 25 at [51]. 28 [2014] ewca civ 679. 176 the denning law journal breach of duty appropriated property owned by the company in what the court considered amounted to theft. he subsequently transferred his shares in the company to his brother (the only other shareholder). when the director was required to make restitution to the company for his misappropriation, he claimed that the share transfer should be set aside on grounds of mistake. the court of appeal decided that there was no basis for holding that there had been any mistake: the share transfer had been intended by the director to make good his wrongdoing at a time when the shares were practically worthless, and that intention was not invalidated by the shares subsequently becoming more valuable. a similar decision is pagel v farman.29 this case involved former business partners in an investment business. farman was responsible for choosing the investments, and pagel for marketing. the business was initially successful, but later generated losses. in order to meet a tax bill, pagel asked farman for a substantial gift as a goodwill gesture, and farman gave him shares worth £3.8 million. when pagel later sued to recover the losses, which he believed he had suffered through farman’s poor investment strategy, farman counterclaimed for the return of the gift. the judge rejected the claim that the gift had been made because farman mistakenly thought that pagel was in financial difficulties. farman was likely to know that this was not the case. instead, the gift had more likely been made by farman to acknowledge his responsibility for the losses which the partnership had suffered. no operative mistake was therefore proved. can oversight be a mistake? trustees who fail to take account of a material consideration are likely to be in breach of trust, and beneficiaries may be able to invoke the inadequate consideration branch of the rule in re hastings-bass, discussed below. but would this situation also constitute a mistake? in re strathmullan trust30 an offshore trust was established in 1997 with the objective of reducing liability to inheritance tax. unfortunately no consideration was given to the uk’s deemed domicile provisions, which meant that the trust would not avoid inheritance tax. this problem was identified in 2010. the jersey royal court, finding that the decision in futter v hmrc “seems to us broadly to align the approach to be taken by the english courts in the future with that adopted by the royal court”31 held that there was an operative mistake on the part of the settlor which justified setting the trust aside. the basis of the mistake was that 29 pagel v farman [2013] ewhc 2210 (comm). 30 re strathmullan trust [2014] jrc 056. 31 ibid at [20]. 177 beyond pitt v holt “that one material factor was overlooked”.32 by contrast, lord walker in futter v hmrc held that “causative ignorance” would be insufficient to justify relief for mistake. in his view, “if someone does not apply his mind to a point at all, it is difficult to say that there has been some real mistake about it.”33 this view makes it critically important as to how an oversight is viewed. in the strathmullan case, the facts could be interpreted either as a failure to consider deemed domicile (which was not thought about at all), or as a mistake about the incidence of inheritance tax (which was very much in mind). similarly, mrs pitt either failed to consider inheritance tax or was mistaken in her view that there would be no adverse tax consequences of setting up the trust in the form adopted (the supreme court accepted the latter interpretation). lord walker dismissed the suggestion that drawing the boundary between these different categorisations of the same actions would be subject to judicial manipulation (a description he thought a bit harsh),34 but it is hard to avoid the conclusion that this dimension adds additional uncertainty to the application of the criteria for relief. the (new) rule(s) in re hastings-bass the main issue in pitt v holt was the rule in re hastings-bass. the supreme court agreed with the court of appeal that the rule had been both misattributed and misunderstood. although there were dicta in re hastingsbass which supported the rule, the genesis of the rule could more fairly be attributed to mettoy pension trustees v evans.35 the correct position was also that there were two rules. lord walker, delivering a judgment with which all the other members of the supreme court agreed, considered that lloyd lj had been correct to make “the very important distinction between an error by trustees in going beyond the scope of a power” (“excessive execution”) and “an error in failing to give proper consideration to relevant matters in making a decision which is within the scope of the relevant power” (“inadequate deliberation”).36 because there was no issue of excessive execution, he directed his subsequent remarks to situations involving inadequate deliberation. he agreed with lloyd lj that where trustees were in breach of fiduciary duty in exercising a dispositive power through failing to take into account a relevant matter, or through bringing into account an irrelevant 32 ibid n 30 at [40]. 33 futter v hmrc [2013] uksc 26 at [108]. 34 ibid at [127]. 35 mettoy pension trustees v evans[1990] 1 wlr 1587. 36 ibid at [60]. 178 the denning law journal matter, then their decision would be voidable “at the suit of a beneficiary, but this would be subject to equitable defences and to the court’s discretion.” excessive execution the ambit of the rule although the supreme court described one branch of the redefined rule in re hastings-bass as “excessive execution”, this description does not fully capture its potential ambit. whenever trustees do something which is beyond their powers their action cannot be effective precisely because they have no power to do it. lloyd lj in the court of appeal helpfully identified a number of ways in which an action can be beyond the powers of trustees and will therefore be void.37 (i) procedural defects trustees may act beyond their powers through “the use of the wrong kind of document or the failure to obtain a necessary prior consent.” re gleeds retirement benefits scheme,38 decided after futter v hmrc, is a perfect example. pension trustees had purported to make a number of decisions about pension increases, the appointment of new trustees and other matters. the decisions were not actioned by deed as required by the terms of the trust, but by documents which did not constitute deeds through a failure to have them properly witnessed. newey j held that the documents were wholly ineffective.39 (ii) substantive defects lloyd lj said that “there may be a substantive defect, such as an unauthorised delegation or an appointment to someone who is not within the class of objects.” this again is illustrated by re gleeds retirement benefits 37 pitt v holt [2011] ewca civ 197 at [96]. 38 briggs v gleeds (head office) [2014] ewhc 1178 (ch). 39 a different result would probably have been reached under jersey law, since it has been held by the jersey royal court in re the shinorvic trust [2012] jrc 081 that, subject to a number of conditions which would have been satisfied in the gleeds case, equity will correct a formal defect in the execution of a power. see also marley v rawlings [2014] uksc 2 for a more benign approach to a defect in the execution of a will. 179 beyond pitt v holt scheme.40 the pension trust was restricted to qualified chartered surveyors, but the trustees purported to allow other employees to join the scheme following an ineffective attempt to widen eligibility for membership by an invalidly executed document. newey j held that “anyone purportedly admitted to membership on or after that date who was not a chartered quantity surveyor will not have accrued any benefits under the scheme as a member.”41 (iii) fraud on a power lloyd lj considered that “cases of a fraud on the power are similar to the latter [appointment to someone who is not within the class of object], since the true intended beneficiary, who is not an object of the power, is someone other than the nominal appointee.” (iv) powers of advancement statutory and express powers of appointment can be used only to confer a benefit on the appointee. if no benefit is conferred, then the purported exercise of the power will be void. (v) other legal defects lloyd lj indicated that “there may also be a defect under the general law, such as the rule against perpetuities, whose impact and significance will depend on the extent of the invalidity.” in making this remark he had in mind cases where the effect of the rule against perpetuities might be to deprive the object of a power of appointment of the benefit intended to be conferred by a decision. “in that case the advancement will be void, since the power can only be used for the benefit of the relevant person and the purported exercise was not for his or her benefit.” a grouping of disparate situations the grouping together of this range of situations in which trustees can be considered to have acted beyond their powers has some implications which have yet to be explored or explained. first, lloyd lj has conflated a number of different situations in a way which may not have been sufficiently discriminating. this is demonstrated by the label attached by lord walker. it 40 gleeds retirement benefits scheme [2014] ewhc 1178 (ch). 41 re gleeds retirement benefits scheme [2014] ewhc 1178 (ch) at [189]. 180 the denning law journal is somewhat strange to describe the defective execution of a deed or the breach of some other general provision of the law such as a failure to comply with the rule against perpetuities as “excessive execution”. there is a danger that the grouping means that every situation in the list will be treated similarly. this should not be the case. is there always a breach of trust? the consequences which flow from the different types of acting beyond the scope of a power enumerated by lloyd lj are not always identical. there may be a difference between the treatment of a trustee who acts outside the terms of the trust and a trustee who fails to comply with some provisions of the general law. a trustee who acts outside the scope of his powers (for instance by making a disposition in favour of a person who is not within the class of potential beneficiaries) commits a breach of trust. there is an absolute obligation on trustees to act within their powers42, such that taking all due care does not avoid liability43, although it may be a factor in justifying a court in granting relief on the basis that the trustee had acted “honestly and reasonably and ought fairly to be excused.”44 lord walker thought that there might be cases where trustees are in breach of trust without exceeding their powers “even if they have obtained apparently competent professional advice, if they act ... contrary to the general law”.45 the example he gave, however, was of an australian case46 in which the incorrect advice was as to the interpretation of the intestacy laws. that was not, therefore, a case of doing something which was in breach of the general law, but as lloyd lj in the court of appeal correctly recognised, of the trustees acting outside the scope of their powers by making a payment to a person who was not within the class of beneficiaries.47 by way of contrast, some of the situations in which trustees’ actions are ineffective because of a failure to comply with the general law may not constitute a breach of trust. for instance, it may not be a breach of trust if 42 as is explicitly recognised in pitt v holt by mummery lj at [237]. 43 see pitt v holt [2011] ewca civ 197 at [122] where lloyd lj draws a distinction between making the advancement in re abrahams’ will trust [1969] 1 ch 463 (which he said would not be a breach of trust because the trustees acted reasonably in the light of the state of knowledge at the time they made their decision) and acting on the decision by paying the wrong beneficiary, which would be a breach of trust. 44 trustee act 1925 s. 61. 45 futter v hmrc [2013] uksc 26 at [80]. 46 national trustees co of australasia ltd v general finance co of australasia ltd [1905] ac 373. 47 pitt v holt [2011] ewca civ 197 at [121]. 181 beyond pitt v holt unremunerated lay trustees who have properly made a decision which is within their powers then fail to execute it correctly in accordance with the general law because they reasonably follow48 inadequate or incorrect advice from their properly qualified, properly selected and properly appointed advisers.49 such action is not beyond their powers, it is merely ineffective. consent of beneficiaries another difference is that in those cases where the general law (rather than the terms of the trust) prohibit an act by the trustees, the consent of the beneficiaries affected will normally be irrelevant to the prohibition. conversely, in those instances where there is an act which is outside the scope of the power because it is not authorised by the terms of the trust, the consent of all of the beneficiaries affected is capable of exonerating the trustees from liability for breach of trust50 or even of authorising an act which would otherwise be unauthorised.51 is the invalidity automatic? the main factor which unites the categories enumerated by lloyd lj is that they are instances where the action or decision of the trustees is void. one of the characteristics of a void decision is that it does not in principle require a declaratory decision of the court to make or confirm its invalidity: an order of the court simply serves to declare the position as it already is. a failure properly to execute a document will be ineffective even without a judgment to that effect by a court: for instance it does not require a decision of the court to permit the land registry to reject a transfer of land by trustees which has not been made by deed. however, there are some instances in the list set out by lloyd lj where an evaluative consideration may be required. this can be true both as to whether an advancement confers sufficient benefit on an advancee (category (iv) above) and as to whether the exercise of a power constitutes a 48 in dunn v flood (1885) 28 ch d 586, an example given by lord walker of trustees not being protected by following professional advice from breach of trust for excessive execution, the trustees were in breach for two reasons: the imposition of depreciatory conditions on a sale of trust property was beyond their powers, and they unreasonably decided to follow the advice they received, so they were also in breach of trust for their failure to act with reasonable care. 49 this was not discussed in briggs v gleeds (head office) [2014] ewhc 1178 (ch). 50 re pauling’s settlement trusts [1964] ch 303. 51 saunders v vautier (1841) cr & ph 240; peter luxton, ‘variation of trusts: settlors’ intentions and the consent principle in saunders v vautier’ (1997) 60 mlr 719. 182 the denning law journal fraud in the sense that it confers benefits on parties who are not within the scope of the power (category (iii) above). in such cases it may be much less apparent to a third party that a decision has been made in excess of trustees’ powers than it is with (say) an invalidly executed deed (where the invalidity may be obvious on the face), and there may be scope for argument about whether the decision has properly been made. the difficulty of establishing whether an advancement has been properly made is compounded by the recognition in cases in which the court has approved advancements that the benefit does not require financial gain to the beneficiary concerned: making a gift to charity will confer a benefit on the beneficiary if it meets a moral obligation.52 regard to cases involving variations of trust make the decision even more difficult, for in this context the chance of benefit has been treated as sufficient to justify the court giving consent, even if there may be circumstances in which the benefit may be lost entirely. a court order may therefore be necessary to resolve the issue of whether an advancement has properly been made. in such circumstances there is less logic in concluding that the action of the trustees in making what purports to be an advancement is void, and the same applies to dispositions, on their face within the powers of trustees, which are challenged as having been made in fraud of the power. both the court of appeal and the supreme court had some reservations about holding that a decision of trustees which was in fraud of a power is void, rather than merely voidable, although there is court of appeal authority to this effect. lloyd lj made the case for this issue being revisited, and the need for this was endorsed in the supreme court.53 ambulatory invalidity another question affecting decisions outside the scope of trustees’ powers relates to what may be termed “ambulatory invalidity”. lloyd lj in pitt v holt54 appears to contemplate that where an advancement has been made which is believed to confer a benefit on a beneficiary as the law is then understood, but the beneficiary is later shorn of that benefit because of a change in the interpretation of the relevant law, the advancement will be void because of the absence of benefit, which is a precondition of a valid advancement. this is illustrated by re abrahams’ will trusts which involved a trust established in 1948. advancements purported to be made in 1957 were held to be void. we understand from the analysis in pitt v holt and re hastings-bass that this was because the advancements did not in fact confer 52 re clore’s settlement trusts [1966] 1 wlr 955. 53 futter v hmrc [2013] uksc 26 at [62]. 54 pitt v holt [2011] ewca civ 197 at [122]. 183 beyond pitt v holt any benefit on the advancee. but why was this? it was because, although the trustees honestly and reasonably believed that a new perpetuity period would apply to the advancements, they were wrong. in 1962, several years after the purported advancement, the house of lords held in pilkington v irc that in circumstances like these, the advancement had to be written back into the original settlement. now, of course, the common law fiction is that the house of lords declares the law as it always has been, so it could be argued that even in 1957 the advancement did not in fact confer the benefits it was thought that it did. however, if you had asked the trustees in 1957, the received opinion then was that the arrangement they had made did constitute a valid advancement, and it would have needed unusual powers of prescience to forecast that the house of lords would decide otherwise.55 similarly, in re hastings-bass legal advice was taken before making the advancement, yet buckley lj in that case was still prepared to analyse whether there was a benefit in the light of the “change” made by pilkington. during the interval between the purported advancement and the decision in pilkington, everyone concerned would have believed that the advancement conferred a benefit (and they may have had advice to this effect); it was only following pilkington that there can have been an appreciation that the position had changed. it is hard to reach any conclusion other than that a change in the interpretation of the rule against perpetuities can invalidate what was previously thought to be a valid exercise of discretion by taking the decision of trustees beyond their powers. if that is so, then why would not a change in the interpretation of the tax laws, or even a legislative change to the tax laws have the capacity to strip the anticipated benefit from an advancee and thereby invalidate the decision? inadequate deliberation the elements of the rule the key points which lord walker identified in relation to inadequate deliberation are that the failure by the trustees must be sufficiently grave to amount to a breach of fiduciary duty;56 and that it would be wrong to hold trustees responsible for inadequate deliberation where they have sought and relied upon apparently competent professional advice.57 importantly, lord walker made it clear that trustees are not under a duty to be right on every 55 see pitt v holt [2011] ewca civ 197 at [51]. 56 ibid at [68] and [73] (lord walker repeats the same phrase). 57 ibid n 55 at [80]. 184 the denning law journal occasion.58 the effect of inadequate deliberation is that a decision is only voidable, not void. breach of trust the basis? both the court of appeal and the supreme court place considerable emphasis on inadequate deliberation justifying undoing a decision because it constitutes a breach of fiduciary duty, and therefore a breach of trust. a key part of the reasoning is that unless there is a breach of trust, and in the absence of an operative mistake, there is no justification for setting aside a decision of the trustees. since there is invariably a breach of trust in cases of excessive execution where trustees genuinely act beyond the powers conferred by the trust (rather than failing to comply with a requirement of the general law), it might therefore appear that breach of trust is the general justification for invalidating the decisions of trustees. if this is the case, then there is a very real issue as to where and why the dividing line between void and voidable decisions should be drawn. the supreme court did not consider it necessary to consider the justification for the point at which it drew the line between void and voidable acts, given a concession by counsel on both sides.59 the court of appeal gave little consideration to the issue despite the difference of opinion in earlier cases. the reasoning appears to be that the situations in which a decision will be void should be kept to a minimum60 and that by analogy with the self-dealing rule, transactions in breach of fiduciary duty are voidable not void.61 if the basis for the jurisdiction is breach of fiduciary duty rather than simply breach of trust, then we will see that there is a serious problem. categorisation of breaches of trust the duties of trustees fall into three broad groups. first, there are absolute duties, principally the duty to act within the terms of the trust. secondly, there are situations in which trustees have obligations of diligence, prudence, or reasonable care. finally, trustees have fiduciary duties. lord walker, following lloyd lj in the court of appeal, ostensibly confines the inadequate deliberation rule to the final category. 58 ibid n 55 at [88]. 59 futter v hmrc [2013] uksc 26at [93]. 60 see pitt v holt [2011] ewca civ 197 at [101]. 61 see lloyd lj in pitt v holt [2011] ewca civ 197 at [100] citing gwembe valley development co ltd v koshy [2003] ewca civ 1048. 185 beyond pitt v holt the first category corresponds with the “scope of the power” or the “four corners of the trust” test. there is a breach if the trustee acts beyond the scope of authority conferred by the trust, for instance by failing to follow binding instructions, by paying the wrong beneficiary, by disposing of inalienable property, by acting without a necessary consent, and the like. even where a trustee seeks advice and acts upon it, the duty can be broken, for it is not dependent upon fault in the sense of negligence or lack of care. this is why, in national trustees co of australasia ltd v general finance co of australasia ltd 62 trustees who followed advice about who were their beneficiaries were liable when their advisers “by some extraordinary slip” misinterpreted the statutory intestacy rules. the second category of duty applies where by statute or the rules of equity, trustees are required to act with reasonable care, or the old equitable equivalent, the duty to act as a prudent man of business would in dealing with the affairs of others. a list of circumstances in which there is a duty to take reasonable care is set out in the trustee act 2000, schedule 1. this includes a number of activities including the exercise of investment powers, and the selection and supervision of agents. a similar common law duty under the rule in speight v gaunt applies to most aspects of trustees’ other responsibilities. the final category comprises those duties which are fiduciary in nature. as is frequently pointed out, the essence of a fiduciary duty is that it is a duty to demonstrate loyalty, and this is why it applies not just to trustees but also to others such as agents or company directors who have assumed roles in which this kind of responsibility is inherent. the duties of loyalty applied to fiduciaries include: i. the duty to act in good faith; ii. the duty not to make a personal profit; iii. the duty to avoid any conflict of interest; iv. the duty not to act for one’s own benefit or for the benefit of a third party without informed consent. in addition, it is apt to describe as fiduciary duties the obligation of trustees to ascertain the true wishes of the settlor in order to give effect to the 62 national trustees co of australasia ltd. v general finance co of australasia ltd.[1905] ac 373. 186 the denning law journal settlor’s instructions,63 and the obligation of trustees to hold a fair balance between beneficiaries.64 common slips concerning fiduciary duties it is easy to make one of several slips when considering fiduciary duties. the first is to think that all the duties owed by a fiduciary fall into the same category. mummery lj in the court of appeal probably made this mistake when he suggested that acting “outside the four corners” of a power is a breach of fiduciary duty.65 it should be remembered that not all duties owed by a trustee or other fiduciary are fiduciary duties.66 secondly, because the way in which a beneficial power of appointment is now distinguished from what was described by the house of lords in mcphail v doulton as a “trust power” is by describing it as a fiduciary power67, it can easily be assumed that all duties to which the donee of the power is subject are fiduciary duties. that is no more the case than that all duties owed by trustees are fiduciary duties. finally, a person in a fiduciary position may act in more than one capacity, eg both as custodian of funds and as a financial or tax adviser. it would surely be ludicrous to suggest that advice given by a trustee on financial or tax matters was subject to a fiduciary duty, whilst the same advice given by an independent (ie separate from the trustee) adviser is subject only to a duty to take reasonable care. do the categories have sharp or soft edges? the three categories of breach of trust are relatively sharply distinguished. it would take a considerable stretch of language to describe the duties of a trustee to take reasonable care in the selection of investments as an obligation deriving from the duty of loyalty, and therefore a fiduciary duty. that does not mean that there can never be disagreement as to exactly where the boundaries between the categories lie. lloyd lj in pitt v holt indicates a degree of discomfort in including fraud on a power in the first category, but 63 see re barr’s settlement trusts [2003] ch 409 at [27]; futter v hmrc at [66]. 64 a duty most obviously reflected in the rule in howe v lord dartmouth (1802) 7 ves jr 137. see also re earl of chesterfield’s trusts (1883) lr 24 ch d 643. 65 see mummery lj in pitt v holt at [237]: “if the disposition is a misapplication of property outside the scope of the power (e.g. a fraud on the power) that will be a breach of fiduciary duty and the disposition would be void”. 66 bristol and west bs v mothew [1998] ch 1. see pearce, stevens and barr, the law of trusts and equitable obligations (5th edn, oxford university press 2010 pp 914915). 67 see mettoy pension trustees v evans [1991] 2 all er 513. 187 beyond pitt v holt feels constrained to do so because of previous court of appeal authority holding cases of fraud on a power to be void68; mummery lj justifies this inclusion on the basis that there is “a misapplication of property outside the scope of the power”69 the problem relating to breach of fiduciary duty the problem which is presented by futter v hmrc is that the supreme court is emphatic that the jurisdiction to reverse a decision of trustees for inadequate consideration is based upon breach of fiduciary duty. however, the label “inadequate consideration” appears to relate to the duties of trustees to act with reasonable care or prudence rather than duties of loyalty. richard nolan, commenting on futter v hmrc in the law quarterly review,70 observes that the concept of fiduciary duty in this context must mean something more than the rules governing conflicts of duty and interest. “clearly, what is meant in futter is wider than that: the conflicts rules already provide for a transaction that was made in conflict of duty and interest to be prima facie voidable, so the rule in futter would be redundant if limited to breaches of fiduciary duty in that narrow sense. context also makes it plain that a wider meaning of “fiduciary duty” is intended.” what constitutes breach of fiduciary duty? there is a very real question as to what the wider meaning of breach of fiduciary duty in this context can be. whilst the court of appeal places considerable emphasis upon the need for a breach of fiduciary duty, it is less clear about what will constitute such a breach. longmore lj makes no observations on the matter, beyond concurring in the judgment of lloyd lj. mummery lj suggests that the breach of fiduciary duty in relation to inadequate deliberation consists of “a flaw in the manner in which the discretion has been exercised”71 having earlier cited as examples “that the fiduciary has left a relevant consideration out of account or has taken an irrelevant consideration into account”.72 those factors, of course, are considerations which are more relevant to deciding whether there has been a failure to act with reasonable care than to whether there has been a breach of a 68 pitt v holt [2011] ewca civ 197 at [97] [98]. 69 ibid at [237]; see also lloyd lj at [96]. 70 richard nolan, ‘fiduciaries and their flawed decisions’ (2013) 129 lqr 2013, 469-473. 71 pitt v holt [2011] ewca civ 197 at [233]. 72 ibid at [231]. 188 the denning law journal duty of loyalty. lloyd lj equally appears to take the view that a failure to take reasonable care will be sufficient to allow a decision to be set aside, while at the same time insisting that there should be a breach of fiduciary duty. in one of his statements about when a trustee decision can be overturned, lloyd lj does not explicitly require a breach of fiduciary duty at all, but merely that “the trustees have in some way breached their duties in respect of that exercise” of a discretionary power.73 this could be taken as an isolated and incautious observation were it not that his subsequent remarks similarly suggest that any breach of trust, including a breach of the statutory or common law duty of reasonable care74 would be sufficient to ground intervention by the court at the instance of an affected beneficiary. in those instances where he refers to breach of fiduciary duty he appears to use the term interchangeably with breach of trust75 and he gives three examples of breach of fiduciary duty: failing to consider a discretion which trustees are under a duty to consider,76 failing to take into account a relevant factor, and taking into account some irrelevant matter.77the first of these will be considered later; the other two were the examples picked up in mummery lj’s concurring judgment. in the supreme court similar emphasis is given to the need for breach of fiduciary duty. lord walker agrees “that for the rule to apply the inadequate deliberation on the part of the trustees must be sufficiently serious as to amount to a breach of fiduciary duty.”78 the nearest he gets, however, to describing what would constitute a breach of fiduciary duty is that he says that, in addition to strict liability for acting outside the scope of their powers, “trustees may also be in breach of duty in failing to give proper consideration to the exercise of their discretionary powers, and a failure to take professional advice may amount to, or contribute to, a flawed decision-making process.”79 the conclusion therefore seems to be that a breach of fiduciary duty in this context can consist of a failure to take reasonable care.80 on the surface 73 ibid n 71 at [99]. 74 ibid n 71 at [107] and [162]-[163]. 75 see pitt v holt [2011] ewca civ 197 at [99] and [136]. 76 ibid at [110]. 77 ibid n 75 at [127] he also said at [127] “the trustees' duty to take relevant matters into account is a fiduciary duty, so an act done as a result of a breach of that duty is voidable.” this identical phrase is repeated at [222]. 78 futter v hmrc [2013] uksc 26 at [73]. lord walker’s agreement was with lightman j in abacus trust co (isle of man) v barr [2003] ch 409 although it also reflects agreement with the court of appeal in pitt v holt. 79 ibid at [80]. 80 this is the normal civil law standard of reasonable care. lloyd lj explicitly rejected the test used in public law set out in associated provincial picture houses 189 beyond pitt v holt this looks like requiring one kind of breach of duty, but defining the obligation in the terms of another kind of breach of duty.81 why is the test expressed as breach of fiduciary duty? the question then arises as to why what may be simply a failure to consider all relevant factors – a failure to take reasonable care – is described as a breach of fiduciary duty. no explicit answer is given in either pitt v holt or futter v hmrc. however, there is an implicit answer. one of lloyd lj’s examples of a breach of fiduciary duty is a failure to consider a discretion which trustees are under a duty to consider.82 such a power is, of course, a fiduciary power rather than a beneficial power: it is a power which the donee (often a trustee) holds under an obligation at least to consider its exercise, and which the donee is obliged to exercise in a way which takes heed of those whom it is intended to benefit. in relation to such powers the duties of the fiduciary are not merely to act with loyalty in the sense of acting selflessly and in a way which presents no conflict of personal interest. there is also a duty to have regard to the best interests of the potential beneficiaries. within this duty can be found the obligation of trustees to act in an even handed way between those beneficiaries entitled to income, and those entitled to capital. the reference to fiduciary duty in this context may therefore simply be a convenient shorthand for duties to take reasonable care or to act prudently which arise because a power is held subject to obligations to others. does the rule apply only to dispositive powers? many of the cases in which the rule in re hastings-bass has been considered have involved discretionary dispositive powers, and both lloyd lj and mummery lj in pitt v holt refer several times to the court determining the validity of this type of power. this could be taken to suggest that the rule is limited to discretionary dispositive powers. there is much less in the judgment of lord walker in futter v hmrc to suggest such a limitation, and it is hard to see why it would be justified. the first limb of the rule in re hastings-bass cannot be confined to discretionary dispositive powers: any ltd v wednesbury corporation [1948] 1 kb 223: pitt v holt [2011] ewca civ 197 at [77]. 81 miguel colebrook, "get out of jail free" card: the courts' offer of assistance to errant trustees, [2013] denning lj 211-223 at 220 also makes the point that ‘we typically do not unwind transactions for negligence. negligent conduct typically results in a claim for loss.’ 82 see above text to footnote 76. 190 the denning law journal purported action by trustees which falls outside the four corners of the trust or which is prohibited by general law will be void. a failure to use the appropriate mode of transfer will be just as ineffective in transferring funds to a new custodian trustee as it will be to a beneficiary. there also appears to be no reason of principle why the inadequate consideration rule should be limited to dispositive powers. in one of the cases for decision in pitt v holt and futter v hmrc the question involved the terms of a trust established by mrs pitt, acting as a receiver appointed by the court of protection, to receive damages to which mr pitt was entitled for injuries sustained in a road accident. this was not a typical example of the exercise of a discretionary power. if this situation could fall within the rule, then surely other decisions relating to the allocation of funds should also be within the rule. for instance, a decision of trustees to distribute to a member of a class without considering the claims of the other class members would be voidable. why not also a decision of trustees to invest in a way which unduly favours one class of beneficiary (perhaps by prioritising capital growth over income and thus prejudicing an income beneficiary)? this would truly be a breach of fiduciary duty (the duty to act even-handedly between beneficiaries), and in so far as third parties might be affected, this could be dealt with by the usual safeguards for voidable transactions (including the bona fide purchaser defence). the english high court decision in donaldson v smith,83 which could be taken to suggest that the rule in re hastings-bass is confined to dispositive powers, decided only that the (old) rule could not apply to powers which were wholly unqualified. in that case the judge held that the power of trustees as legal owners in land was an unqualified power, and that even if the exercise of that power was subject to the rule in re hastings-bass, the effect of the rule would have been to make its flawed exercise voidable rather than void. in the jersey case of seaton trustees limited v morgan, re the winton trust84 commissioner clyde-smith said that he could not “see any reason in principle to distinguish between dispositive and administrative discretions” in applying the old rule.85 that is the better view, and it should surely also apply to the redefined rule. 83 donaldson v smith [2006] ewhc b9 (ch). 84 seaton trustees limited v morgan [2007] jrc 206. 85 other cases where the rule has been applied to administrative powers are leumi overseas trust corporation v howe [2007] jrc 248 (borrowing by trustees) and re l,re representation of mrs p, re the r trust [2011] jrc 085 (appointment of new trustee). contrast re duxbury’s settlement trusts [1995] 1 wlr 425 (decision of rattee j that the rule in re hastings-bass did not apply to the appointment of a trustee under trustee act 1925 s36 not challenged on appeal). 191 beyond pitt v holt foundations of sand? lloyd lj in the court of appeal and lord walker in the supreme court both concluded following an analysis of precedent that the rule in re hastings-bass had been developed beyond the bounds justified by authority. that was not a foregone conclusion. deputy bailiff birt, in the jersey case of in the matter of the green glg trust86 considered that the old rule in re hastings-bass was “entirely consistent with precedent and principle.” it would have been open to the english courts to find a similar basis for the unreformed rule. the cases on the exercise of a power for an improper purpose (the doctrine known as fraud on a power), including cloutte v storey87 (in which the court of appeal held that such an exercise was void), fit inconveniently into the new analysis. cloutte v storey in particular “may have to be revisited one day.”88 other cases, the most well-known of which is klug v klug,89 could have supported a broader rule. in that case the court overrode a decision by a mother not to make an advancement to her daughter because she disapproved of her daughter’s choice of husband. lord walker sidestepped this by observing that: “the old cases as to the maintenance of children are rather exceptional ... some judicial pronouncements in these cases should not be taken out of context.”90 were it not for the hostility of the senior judiciary to the rule, a different outcome to the case would have been possible, and it is therefore a shame that the court of appeal and the supreme court based their decisions almost exclusively on an analysis of precedent rather than on policy considerations. there is, after all, a logic to limiting the extent to which the courts can interfere with the decisions of trustees. firstly, the life of trustees would be made impossible if their decisions could be set aside whenever the courts considered that they would have reached a different decision if the relevant considerations had been balanced differently. there is also an arguable perversity if there is a wider jurisdiction to set aside decisions made by 86 in the matter of the green glg trust [2002] jlr 571 at [25] to [28]. 87 cloutte v storey [1911] 1 ch 18. 88 futter v hmrc [2013] uksc 26 at [62]; [2011] ewca civ 197 at [98]. 89 klug v klug [1918] 2 ch 67. 90 futter v hmrc [2013] uksc 26 at [64]. 192 the denning law journal trustees compared with decisions made by individuals,91 and there is therefore merit in increasing the role of mistake in correcting flawed decisions.92 whither the rule in re hastings-bass? the end of the story? longmore lj in pitt v holt expressed the view that “these appeals provide examples of that comparatively rare instance of the law taking a seriously wrong turn, of that wrong turn being not infrequently acted on over a twenty year period but this court being able to reverse that error and put the law back on the right course”.93 he expressed the hope, although without great optimism, that the rule in re hastings-bass would feature much less prominently in the future. his hope, but also his lack of pessimism, have some foundation. how much has really changed? there has been less of a change in the formal rules than the court of appeal in pitt v holt and the supreme court in futter v hmrc may have believed. probably the most significant change is the decision that trustees who reasonably rely upon professional advice in relation to a matter within their powers do not act in breach of trust if that advice proved to be inaccurate. setting aside this crucially important change, there has been more of a clarification of points of doubt than a sea change in the law. what is left of the hastings-bass rule is not in most respects materially different from what preceded it. admittedly, the rule has been broken into two, the excessive execution and the inadequate deliberation rules, but the main effect of this distinction is to differentiate those decisions which are void from those which are voidable. for the second of the two rules, there is also a requirement of breach of trust, but this breach can consist of “the failure of the trustees to take into account a relevant factor to which they should have had regard ...or by their taking into account some irrelevant matter”94. this is almost exactly how lloyd lj characterised the old hastings-bass rule in sieff v fox: he said that the rule applied where trustees “would not have acted as they did had they 91 the amendment to the jersey trusts law referred to below applies to decisions by individuals transferring assets to a trust as well as to decisions by trustees. 92 see natalie lee, ‘futter v hmrc; pitt v hmrc: the rule in hastings-bass and of mistake reviewed’ [2014] conv. 175-185 at 181-182. 93 pitt v holt [2011] ewca civ 197 at [227]. 94 pitt v holt [2011] ewca civ 197 at [127]. 193 beyond pitt v holt not failed to take into account considerations which they ought to have taken into account, or taken into account considerations which they ought not to have taken into account”95. there are, however, some other factors in play. the hostile approach lloyd lj was critical of the way in which trustees had been able themselves to invoke the rule in re hastings-bass to unpick the exercise of a discretion that had produced unfortunate results. he believed that it would only rarely be appropriate for trustees to initiate proceedings, and ‘if in future it is desired to challenge an exercise by trustees of a discretionary power on this basis, it will be necessary for one or more beneficiaries to grasp the nettle of alleging and proving a breach of fiduciary duty on the part of the trustees.’96 it is thus ironic that one of the first cases to invoke the new rule in re hastings-bass in a substantial way was a case initiated by trustees. in roadchef (employee benefits trustees) ltd v hill97 a roadchef director who was in a dominant position secured the appointment of another company of which he was also a director as a trustee of the roadchef employee benefits scheme. through the director’s influence, the scheme was amended in such a way as to divert significant benefits to the director. proudman j, applying futter v hmrc, held that the amendments were void. she thought that there might have been inadequate deliberation, but more importantly, the amendments to the scheme fell outside the trustees’ powers of amendment.98 in addition, the changes had been made for an improper purpose, so that the amendments were void on the basis that they were a fraud on the power.99 for good measure, proudman j also held that the amendments could be set aside on the grounds of mistake.100 the action in this case had been brought by the trustees of the employee benefits scheme, who were, of course, the trustees who had made the impugned decisions. proudman j considered that this was not relevant in so far as the impugned decisions were void, and that this was in any event an appropriate case for the trustees to bring an action since the trust was no longer under the control of the director who had orchestrated the improper decisions, the trustees were able to bring claims for breach of duty that were not available to the beneficiaries, and the trustees in the 95 sieff v fox [2005] 1 wlr 3811 at [119]. see above text to footnote 4. 96 pitt v holt [2011] ewca civ 197 at [130]. 97 roadchef (employee benefits trustees) ltd. v hill [2014] ewhc 109 (ch). 98 roadchef (employee benefits trustees) ltd. v hill [2014] ewhc 109 (ch) at [122]-[123]. 99 ibid at [131]. 100 ibid n 98 at [136]. 194 the denning law journal circumstances were able to act as representatives of the beneficiaries who had brought several actions which were being stayed pending the outcome of the trustees’ proceedings. the case therefore illustrates that there may be a range of circumstances which would justify the trustees continuing to invoke the rule in re hastings-bass in partnership with the beneficiaries rather than in conflict with them. there is also an interesting paradox about the requirement that there be a breach of trust in order to justify the operation of the rule in re hastingsbass. whilst trustees may normally be reluctant to be found in breach because of the potential liability to which it exposes them, since the rule in re hastings-bass can reverse the effect of their flawed decision, a finding that they are in breach could also invoke a mechanism which exonerates them from liability. the trustees may therefore perversely be incentivised to assist the beneficiaries in playing a card which can still get the trustees out of jail free. there is, however, an element of jeopardy: since the trustees’ decision is only voidable, and relief is at the discretion of the court,101 a judge, in the exercise of discretion, may decide that a flawed decision should stand and that the beneficiaries should be left with their remedies for breach of trust. the trustees might also be expected to pay their own costs.102 finally, the newly broadened concept of mistake may prove to be as frequently invoked a tool as the rule in re hastings-bass used to be. the majority of cases in which judgments are available since futter v hmrc have pursued this route, albeit mostly with limited success. judicial hostility what is probably a more important factor in discouraging applications to invoke the rule in re hastings-bass is the evident judicial hostility to the use of the rule to extract trustees from a poor decision. the solidarity of the judiciary in the higher courts in seeking to constrain the rule in re hastingsbass was striking. the supreme court bench of seven judges was unanimous, with only a single judgment. before this, the court of appeal had been unanimous, with no indication of any difference of opinion between the court’s members. lloyd lj referred to critical lectures by lord walker in 2002103 and by lord neuberger in 2009104 and in the judicial studies board 101 pitt v holt [2011] ewca civ 197 at [101] and [127]; futter at [93]. 102 futter v hmrc [2013] uksc 26 at [69]. 103 lord walker, ‘the limits of the principle in re hastings-bass’, lecture at kings college london, [2002] pcb 226. 195 beyond pitt v holt annual lecture,105 given shortly after the court of appeal delivered its decision, lord neuberger (who was later appointed president of the supreme court and was a member of the bench for the appeal), repeated his criticism, described the judgment of lloyd lj as “magisterial”, and said that the development was based upon ‘a cornerstone placed on sand’.106 this background suggests that applications to use the rule in re hastings-bass are likely to be less warmly received than was the case before the appeals. since it is necessary to find a breach of trust, and trustees are not required always to be right, it is possible for judges to find that a decision of trustees – unless manifestly misdirected or misinformed – is within the margin of trustees’ appreciation and not a breach. a case decided between pitt v holt and futter v hmrc illustrates the point. in prudential staff pensions ltd v the prudential assurance company ltd 107 one of the matters addressed was whether the trustees had acted properly in making annual discretionary increases to pensions in payment rather than establishing a scheme under which pensions were increased automatically in line with increases in the retail prices index. the trustees had failed to take advice on whether such an action was within their powers. newey j approached this question by asking himself whether the trustees had been in breach of trust in failing to take advice (they seem to have given this question no thought at all). having concluded that they had acted reasonably in not taking advice, he held that the trustees’ decision relating to indexation was valid. the role of hmrc pitt v holt and futter v futter were the first prominent domestic cases involving the rule in re hastings-bass in which her majesty’s revenue and customs chose to become involved.108 in earlier cases there was what some 104 lord neuberger, “aspects of the law of mistake: re hastings-bass,” lecture to the chancery bar association conference in london on 16 january 2009, (2009) 15(4) trusts & trustees 189–99. 105 lord neuberger, “open justice unbound”, the judicial studies board annual lecture 2011, 16 march 2011 at [17]. 106 lord neuberger, “open justice unbound” , para [18] 107 prudential staff pensions ltd v the prudential assurance company ltd. [2011] ewhc 960 (ch) (14 april 2011). 108 hmrc has also intervened in cases outside the jurisdiction. in hmrc v gresch and rbc trust company limited [2009] glr 239 hmrc successfully sought the right to be represented in a hastings-bass application in guernsey. the privy council denied leave to appeal from the decisions of the guernsey court of apppeal. hmrc made written representations in a jersey case which were considered as a matter of courtesy in the matter of seaton trustees limited [2009] jrc 050. 196 the denning law journal judges suggested was a rather cosy conspiracy between trustees and beneficiaries to overturn a decision which has proved, with the advantage of hindsight, to be less advantageous than it was thought to be when the decision was made. lloyd lj indicated that the absence of hmrc from the cases in which the hastings-bass rule had been considered might have led to an absence of strong forensic debate and testing of the limits of the rule. the more recent cases demonstrate that hmrc has changed its policy and is now seeking representation in similar cases, a change in policy driven in part, no doubt, by a desire to increase the bite of existing taxes at a time when the government is seeking to increase tax revenue but the scope for new taxes is limited. hmrc involvement is likely to make it more difficult for trustees or beneficiaries to establish a case for reversing a decision. that task would be made even more difficult were the courts to endorse the suggestion of natalie lee, writing in the conveyancer, who argues that (presumably only where a decision is voidable), hmrc should be treated as an innocent third party and that where a transaction is set aside it should be “subject to a term that hmrc (and thus the public purse) should not be prejudiced.” 109 most chancery lawyers would be surprised at this suggestion which appears to equate the interest of hmrc with a party who would have a beneficial interest in the funds if a flawed decision remained uncorrected.110 incorrect advice it is, as lord walker recognised111 no defence to trustees who have acted outside their powers that they have done so on the basis of incorrect advice. however, where inadequate consideration is concerned, fault on the part of the trustees is a precondition for invoking the new rule in re hasting-bass. whilst trustees may normally be able to rely upon professional advice they have commissioned, it would still be a breach of trust to follow it if to do so was unreasonable, for instance if the advice contains a recital of facts which is clearly wrong.112 where reliance on incorrect advice is reasonable, but in consequence a decision of trustees cannot be reversed, there may notionally 109 natalie lee, ‘futter v hmrc; pitt v hmrc: the rule in hastings-bass and of mistake reviewed’ [2014] conv. 175-185 at 182. lee draws on bhandari, ‘pitt v holt, futter v futter: at last, hastings-bass limited, but is it enough?’ [2011] b.t.r. 288. 110 compare the view expressed by sir philip bailhache, commissioner of the royal court of jersey in re r [2011] jrc 117 at [39]. 111 futter v hmrc [2013] uksc 26 at [80]. 112 an example given by richard wilson, ‘the rule in re hastings-bass: futter v hmrc; pitt v hmrc further thoughts’ [2014] private client business 20 at 2223. 197 beyond pitt v holt be a remedy against the advisers, but this is not as straightforward as it may seem. where trustees seek professional advice, the primary duty to provide competent advice is owed to the trustees. however, the liability to the trustees may be meaningless, for if the trustees are not in breach of trust because they have sought and followed professional advice, the trustees will bear no loss for which they can seek to be indemnified. it would therefore be necessary to establish that the duty was owed not just to the trustees, but to the trust. actions by the beneficiaries may also be subject to a range of difficulties. it may be hard to identify who are appropriate claimants, particularly in the case of discretionary trusts, those where there are unborn beneficiaries, or where there is a power to add beneficiaries. the beneficiaries, unless the trustees are joined on the basis that there is a duty to the trust which constitutes trust property, will have to show that there is a special relationship giving rise to a tortious duty of care under hedley byrne v heller. lord nicholls explained in royal brunei airlines v tan113 that “it is difficult to identify a compelling reason why, in addition to the duty of skill and care vis-a-vis the trustees which the third parties have accepted, or which the law has imposed upon them, third parties should also owe a duty of care directly to the beneficiaries.” further difficulties which may affect the remedies of the beneficiaries are that incorrect advice is not necessarily negligent, and even if it is negligent, the advisers may be protected by an exemption clause. there may also be issues about whether the brief to the advisers required them to provide advice on the issue concerned. where more than one adviser has been consulted it may not be obvious who is responsible. lloyd lj (perhaps unwittingly) demonstrates the problem that mrs pitt faced in identifying the right defendant if she chose to pursue a negligence claim: “frenkel topping deny that they were under a duty to advise her about iht [inheritance tax]. however that may be, it seems to me that, as between the various advisers which acted for and advised her, it must have been the duty of one or other of them, at least, either to advise her about any risk as to iht, or to point out that she might need such advice and see that she got it.”114 a different problem is illustrated by the trust of which mr futter was a trustee. it was held that he was not in breach of trust because he relied upon advice given by the firm of which his co-trustee was a partner. the co-trustee was also absolved from liability for breach of trust because the advice came 113 rotal brunei airlines v tan [1995] 2 ac 378 at 391. 114 pitt v holt [2011] ewca civ 197 at [162]. 198 the denning law journal from a different solicitor in the firm, and the supreme court agreed with the court of appeal “that it would be artificial to distinguish between the two trustees, who acted together in making and effectuating their decisions.”115 it would not be hard to envisage circumstances, however, where the professional trustee is at fault for giving or following incorrect advice when a lay trustee is not. is it sufficient to ground relief that only one trustee, perhaps only one trustee of several, is in breach? lastly, different limitation periods apply to claims against trustees (6 years from act complained of or beneficiary acquiring interest) and advisers (6 years from negligent advice). given the number of potential difficulties it is hardly surprising that the jersey courts have indicated a reluctance to oblige beneficiaries to seek a remedy against financial advisers.116 defences to breach of trust lord walker “would not treat that clause [an exoneration clause in conventional terms] as ousting the application of the hastings-bass rule, if it were otherwise applicable.”117 the clause to which he was referring was a clause stating that “no trustee shall be liable for a breach of trust arising from a mistake or omission made by him in good faith.” this form of wording acknowledges that there has been a breach of trust whilst relieving the trustee of liable. however, it is possible for clauses to be drafted in a way which defines the standard of care rather than providing relief from liability for carelessness. it would be rather odd if the rule in re hastings-bass might or might not apply, depending upon the way in which a limitation of liability clause is drafted. it is highly likely that, however an exoneration or limitation of liability clause is drafted, the courts will use as a test the standard of care which would need to be demonstrated by a trustee who is not protected by any such clause. similarly, the effect of the consent of the beneficiaries may also be an issue which needs to be addressed in the future. it is not uncommon for trustees to consult the beneficiaries about the exercise of discretions. if the beneficiaries consent to a particular transaction, this can constitute a defence to a claim of breach of trust.118 if the inadequate consideration rule requires a breach of trust, does the consent of the beneficiaries preclude relief? it is 115 futter v hmrc [2013] uksc 26 at [96]. 116 in the matter of the green glg trust [2002] jlr 571at [29]; in the matter of the howe family number 1 trust at [32]; in the matter of seaton trustees limited [2009] jrc 050 at [26]. 117 futter v hmrc [2013] uksc 26 at [89]. 118 re pauling’s settlement trusts [1964] ch 303. 199 beyond pitt v holt surely relevant in that it may preclude the hostile claim which appears to be a normal prerequisite for success; it may also operate to estop the beneficiary from later claiming that there has been inadequate consideration, although it is much less likely to be an obstacle for relief for mistake. it should not be relevant to some forms of excessive execution, although it is possible that the consent of beneficiaries could be interpreted as altering the “four corners” or scope of what is permitted by the trust. the beneficiary’s consent must be informed consent to operate as a defence to a claim for breach of trust119: if consent does preclude hastings-bass relief, it will also be interesting to see how far consent can be considered to be fully informed where it is based on honestly held but inaccurate advice. the impact offshore the law in offshore jurisdictions such as guernsey and jersey is not identical to the law of england. whilst as a matter of comity the decisions of the english courts are treated with respect and careful consideration, it cannot be assumed that they will be followed120 (although a slightly worrying example of the privy council applying english rules despite the different context of guernsey trust law is found in spread trustee company ltd v hutcheson.121 the old rule in re hastings-bass has been applied or discussed in a number of cases in jersey,122 and it was established by the royal court that proof of breach of trust was not a prerequisite to the application of the rule.123 the court of appeal decision in pitt v holt represented a dilemma for 119 holder v holder [1968] ch 383. 120 re b [2012] jrc 229. 121 [2011] ukpc 13. see jennifer shearman and robert pearce, “exempting a trustee for gross negligence” [2011] denning lj 181-191. 122 in the matter of the green glg trust [2002] jlr 571; in the matter of friedman and asiatrust limited [2006] jrc 187; in the matter of the winton investment trust [2007] jrc 206; leumi overseas trust corporation v howe [2007] jrc 248; in the matter of the howe family number 1 trust [2007] jlr 660; in the matter of the representation of vistra trust company (jersey) limited [2008] jrc 111; in the matter of seaton trustees limited [2009] jrc 050; re b and c [2009] jrc 245 and in the matter of the v settlement [2011] jrc 046. for a commentary on these cases see brown, “the development of hastings-bass in jersey,” step journal may 2010 and wakeham, “the end of ‘the rule in re hastings-bass’?” step journal may 2011. 123 in the matter of the green glg trust [2002] jlr 571 applied in leumi overseas trust corporation v howe [2007] jrc 248 and re representation vistra trust company (jersey) ltd [2008] jrc 111. 200 the denning law journal the royal court. in re b124 the royal court suggested that it would have followed pitt v holt had it been necessary to the decision in that case. most uncertainty in relation to jersey law has now been removed by an amendment to the jersey trust law 1984,125 introducing articles 47b to 47j. this gives the courts power to declare voidable or of no effect dispositions to a trust or the exercise of powers in relation to a trust which are the result of mistake or of failing to take into account any relevant considerations or of taking into account irrelevant considerations. there is explicitly no requirement of ‘any lack of care or other fault’.126 it is possible that the law does not extend to situations where trustees have acted in excess of their powers, but it is at least arguable in such a case that the trustees have failed to take into account a relevant consideration. it is widely believed that guernsey and the isle of man will introduce similar laws. this reflects the desire in both jurisdictions to develop a trusts system which offers a benign environment for both trustees and beneficiaries. conclusion futter v hmrc has provided some welcome clarification in an area of the law which was overdue for review by the higher courts. however, the decision leaves a number of important questions unresolved, the most important of which is the meaning in this context of breach of fiduciary duty as it relates to decisions which are flawed because of a failure to consider relevant considerations or because they were influenced by irrelevant considerations. the one thing of which there can be little doubt is that, despite the judicial aversion which has been demonstrated to allowing trustees to continue playing the “get out of jail free” card, there will continue to be occasions where decisions with unwelcome and unanticipated outcomes have been made which trustees and beneficiaries alike will seek to avoid. murphy’s law – what can go wrong will go wrong – applies in most areas of endeavour, and trusts are by no means exempt. the courts will have to continue to grapple with the rule in re hastings-bass, and their task has been made only marginally easier by futter v hmrc. 124 [2012] jrc 229. a similar conclusion was reached in in the matter of the onorati settlement [2013] jrc 182. 125 the trusts (amendment no.6) (jersey) law 2013 came into force on october 25, 2013. see 126 for a discussion see william redgrave, “leviathan can look after itself: jersey legislated on mistake and hastings-bass” [2014] private client business 92. 201 introduction background the hastings-bass rule the history of the cases mistake the statement of the rule the relevance of taxation uncertainty about the criteria unjust or unfair to whom? operative mistake can oversight be a mistake? the (new) rule(s) in re hastings-bass excessive execution the ambit of the rule (i) procedural defects (ii) substantive defects (iii) fraud on a power (iv) powers of advancement (v) other legal defects a grouping of disparate situations is there always a breach of trust? consent of beneficiaries is the invalidity automatic? ambulatory invalidity inadequate deliberation the elements of the rule breach of trust the basis? categorisation of breaches of trust common slips concerning fiduciary duties do the categories have sharp or soft edges? the problem relating to breach of fiduciary duty what constitutes breach of fiduciary duty? why is the test expressed as breach of fiduciary duty? does the rule apply only to dispositive powers? foundations of sand? whither the rule in re hastings-bass? the end of the story? how much has really changed? the hostile approach judicial hostility the role of hmrc incorrect advice defences to breach of trust the impact offshore conclusion unincorporated associations: property holding, charitable purposes and dissolution denning law journal 2014 vol 26 pp 19 45 the legislative veto from the perspective of the kosovo constitution visar morina* abstract the constitution of kosovo has established a number of mechanisms for the separation of powers and reciprocal checks and balances among which is the president’s authority to return legislation for reconsideration. however, the interaction between the president and the assembly on matters confronting the legislative veto has unveiled a number of constitutional ambiguities and inconsistencies which rendered involvement of the constitutional court necessary to define further the constitutionallycontemplated powers of the president for returning legislation for reconsideration. the article analyses the presidential legislative veto from the prospect of the 2008 kosovo constitution. through constitutional interpretation and practical cases this article seeks to examine more closely the structural and the functional aspect of the presidential legislative return statements in post-status kosovo. 1. introduction one of the striking features of the kosovo constitution is the principle of the separation of powers between the legislative, executive and the judicial branch. the separation of powers serves at least two essential functions in this new democracy. first, it aims to ensure that the power sharing is appropriately divided and balanced among the three branches of government, and second, that the exercise of the power is reciprocally checked and controlled on the basis of the checks and balances principle. one of these balancing powers is the right of the president of the republic to veto legislation enacted by the assembly of kosovo (hereinafter “assembly”) if the president (hereinafter “the president”) determines that the enacted legislation is constitutionally suspect or violates substantial state or national interests. to some scholars, the * prof. dr. visar morina is a lecturer of constitutional law at the university of prishtina in kosovo and member of the steering committee of the kosovo chamber of advocates. i would like to express my gratitude to professor brian anderson who has provided insightful comments for this article. 19 the legislative veto from the perspective of the kosovo constitution president’s right to return parliamentary-enacted laws for reconsideration is nothing but a mere constitutional shield of the community rights. some argue, however, that the president’s legislative veto is a reflection of the checks and balances embodied in article 4 of the 2008 kosovo constitution. the occasional use of the presidential legislative veto, however, has attracted wide attention among the legal community in kosovo. with the growing legislative initiatives, the public and civil society organisations have occasionally called upon the president to block legislative attempts that were considered to be incompatible with constitutional norms. the president’s legislative veto and procedure for its override by the assembly was also subject of the kosovo constitutional court, which testifies the importance of this legislative instrument in this new democracy. considering the above-mentioned challenges, this article undertakes a broader legal analysis of the application of the president’s right to return legislation from the perspective of the kosovo constitution. as such, it will complement the existing academic literature on two major accounts. first, this article strives to supplement the academic discourse regarding the presidential powers in the legislative review prior to law promulgation, which remains relatively scant on this important subject. second, this article will fill the gap in the current literature regarding certain structural aspects that are generally not addressed by constitutional norms but which normally require further legal elaboration regarding the interaction between the legislative and the executive branch on law promulgation in the parliamentary-type of governments. following the introduction, this article will initially analyse the powers of the president in the context of the 2008 kosovo constitution. section 3 of the article outlines the process of legal drafting in kosovo while in section 4 focus turns to a critical examination of the constitutional interaction between the president and the assembly in accommodating the presidential concerns over the enacted legislation. this part of the article seeks to demarcate the boundaries of the presidential review of law-enactments prior to their promulgation focusing on both constitutionally enumerated and self-implied categories within parameters contemplated by the kosovo constitution. after having explored the application of the legislative veto in both procedural and substantive grounds, section 5 will focus on the challenges and constraints which the respective constitutional bodies in kosovo have encountered in dealing with a presidential legislative veto and its legal implications to the overall legal drafting process. 20 the denning law journal 2. a brief overview of the constitutional competencies of the president as one of the latest constitutions in a world, the 2008 kosovo constitution follows patterns of modern constitutions by following the concept of powerdivision and human rights protection to limit the potential power abuse of the governmental institutions. the constitution provides for an extensive list of constitutional rights and freedoms (chapter 2 of the constitution) and provides for a direct application of the european convention for the protection of human rights and fundamental freedoms and its protocols (arts 22 and 53 of the constitution). it is also worth pointing out that the constitution has devoted a special chapter to the community rights, which contains specific rights for the members of the non-majority communities in addition to the human rights provided in chapter 2 of the constitution. the principle of the separation of powers, which now enjoys wide acceptance in modern constitutional democracies, is therefore one of the key principles entrenched in the kosovo constitution.1 the constitution in its article 4 provides that “kosovo is a democratic republic based on the principle of separation of powers and the checks and balances among them as provided in this constitution.” the 120 member assembly is entitled to exercise the legislative power while the president of the republic represents the unity of the people.2 the judicial power is vested with the courts while the constitutional court is empowered to conduct constitutional review and make binding constitutional interpretations.3 the nine-member constitutional court is entitled to engage in the so-called abstract review of constitutionality and serves as a final protector of the constitutional rights and freedoms. however, as powers allocated to each branch of the government are not “hermetically” sealed from one another and to ensure that the constitutional powers are allocated equally, the kosovo constitution has introduced the principle of checks and balances where the authority of one organ is controlled and checked by the authority of the other organ. some of those reciprocal controls and the constitutional choices are typical for a parliamentary type of government. for example, the president of the republic is elected by two thirds (2/3) majority of all deputies of the assembly, but the 1 constitution of the republic of kosovo was proclaimed on 9 april 2008 and entered into force 15 june 2008 (constitution). for more on the kosovo constitution see joseph marko, ‘the new constitution of kosovo from the regional perspective’ (2008) 33 review of central and european law 437; john tunheim, “rule of law and the kosovo constitution” (2009) 18 minnesota journal of international law 371; arsim bajrami, sistemi kushtetues i republikës së kosovës (2011) artini. 2 constitution (n 1) art 64 and 84. 3 constitution (n 1) art 102 and 112. 21 the legislative veto from the perspective of the kosovo constitution president can dissolve the assembly following a successful vote of no confidence against the government.4 similarly, the majority of deputies of the assembly adopt laws, decisions and other acts, but the president is entitled to return a law to the assembly by stating the reasons of return. these reciprocal checks are inevitable for a balanced institutional interaction among state institutions, which using carolan reflections on the separation of powers indicate that “the extensive powers exercised by the organs of the state could never be satisfactorily reduced to a simplistic three-way of allocation of tasks.”5 presidential competencies are contemplated by article 84 of the constitution. however, as will be seen in the following section of this article, the president is independent to discharge only certain constitutional competencies; other powers of the president are either shared with or depend on the authority of other constitutional bodies.6 the president initiates decision of another organ: the constitution has introduced certain constitutional choices in which the president only initiates the decision of another constitutional body but the president is prevented from the authority to decide the matter on his own. for example the president is competent to initiate a procedure for compliance of a law with the constitution but the final decision rests ultimately with the constitutional court.7 likewise, the president may initiate the procedure to have an enacted law be reconsidered by the assembly prior to its promulgation but the assembly’s repeated enactment of a law enables the law to enter into force in absence of president’s endorsement.8 it should be noted that these kind of constitutional choices are common for some parliamentary-type constitutions in the european level in order to keep the constitutional balance of power intact. the president’s decision ratifies the decision of another organ: in addition to above, the constitution has foreseen other limitations in the constitutional authority of the president to prevent the president from exercising independent constitutional competencies. these limitations have particularly been introduced to safeguard and protect the independence of the judiciary, including that of the constitutional court, where a decision of the president 4 constitution (n 1) art 82 para 2. 5 eoin carolan, the new separation of powers: a theory for the modern state (oup, 2009) 19. 6 this categorisation of the competencies of the president has been borrowed from the judgment of the hungarian constitutional court no. 48/1991 on presidential powers (1991). 7 constitution (n 1) art 113 para 2. 8 constitution (n 1) art 84 para 6. 22 the denning law journal depends on the authority of the organ and, as such, the president is not permitted to exercise a particular function on his own initiative. examples of these are where the president under article 84 (15) and (16) of the constitution appoints and dismisses the president of the supreme court and other judges under the proposal of the kosovo judicial council. the reading of the respective articles of the constitution clearly implies that the president is authorised to take a decision for the appointment or dismissal of regular judges only based upon a reasoned proposal of the kosovo judicial council. it is also assumed that the president is not allowed to appoint a candidate not included on the list submitted by the kosovo judicial council for appointment. also under article 84 (17) and (18) of the constitution the president appoints and dismisses the chief prosecutor and prosecutors upon the proposal of the kosovo prosecutorial council. what remains unclear from a constitutional point of view is whether the constitutional concept of the president’s power of appointment includes the right to refuse the appointment. in general, it may be considered that the president is bound to accept the choice of the nominated person, and may reject the proposed candidate on very exceptional grounds if he/she has well founded convictions that such appointment might seriously disturb the democratic functioning of the state organisations as provided by art. 84.2 of the constitution. president’s decision is decisive: the category of independent presidential competencies comprises those competencies that are attributable to the president by the constitution and are considered sole constitutional responsibilities. the president is entitled to exercise these constitutional powers independently from other constitutional organs, and the decision of the president is decisive. for example, under article 69.4 of the constitution the president may convene an extraordinary meeting of the assembly of kosovo. further, under article 139 of the constitution the president appoints the chairperson of the central elections commission from among the judges of the supreme court. the president may also take independent political decisions also when serious disturbances in the state’s democratic functioning require his intervention. with such intervention the president fulfils his duties set out in article 84 (2) of the constitution “guarantees the constitutional functioning of the institutions set forth by this constitution.” according to the constitution such cases may arise if the government cannot be established within 60 days from the date when the president of the republic appoints the candidate for prime minister. in this case the president dissolves the parliament while simultaneously setting the date for new elections. 23 the legislative veto from the perspective of the kosovo constitution 3. the legislative procedure having explored the constitutional competences of the president, we will now turn to elaborate in broader terms the legislative process in kosovo. it should be mentioned, however, that not much has been written in this field in kosovo except some documents and guidelines published by the government from time to time. these guidelines were published as an effort to increase the legal drafting capacities in kosovo, in particular when it comes to the process of converting governmental policies into legal drafting instruments, and ensuring compliance with european union legislation. the right to legislative initiative is given to the president of the republic of kosovo, the government, deputies of the assembly or at least ten thousand citizens.9 it should be noted that the president can exercise the right to initiate legislation only within the ambit of its constitutional authority. such was the case with the law on the president and the law on pardon.10 obviously, the power to initiate drafting of legislation is mainly used by the government, which implements the parliamentary approved program through the enactment of legislation whereas legal drafting initiatives by the assembly of kosovo have been rarely undertaken.11 the procedure for the referral of legislative initiatives and the procedure for the presentment of the draft laws for parliamentary scrutiny are further regulated by the law on the legislative initiative and the rules of procedure of the assembly of kosovo.12 the initiating authority is obliged to send the announcement for the commencement of the initiative to appropriate table unit at the assembly, requiring provision of detailed explanation as to the objectives aimed to be implemented.13 the initiating authority should provide an explanation note stating the objectives that are aimed to be achieved and the declaration on the potential budgetary implications of the draft law for the 9 constitution (n 1) art 79. 10 law no. 03/l-101 on pardon was adopted on 12 december 2008 and was promulgated by the decree no. dl-076-2008 dated 30.12.2008. the law on the law no. 03/l-094 was adopted on 19 december 2008 and was promulgated by the decree no. dl-082-2008, dated 07.01.2009. 11 one of a few legal drafting initiatives that were undertaken by the assembly include the law on the rights and obligations of the deputies of the assembly of kosovo, the law on mines and minerals and the law on pension fund. 12 law on legislative initiative no 04/l-025 was approved by the assembly of kosovo on 6 october 2011. the law is available at the official gazette of kosovo http://gazetazyrtare.rks-gov.net/. 13 law on legislative initiative, art 13. 24 http://gazetazyrtare.rks-gov.net/ the denning law journal first three years. furthermore, a declaration of the approximation and harmonisation of the proposed law with eu legislation is also required.14 once presented to the assembly, the draft law is subject to the first reading (discussion and voting of the draft law in principle), which takes place no earlier than two working weeks and no later than four working weeks, from the day of the distribution of the draft law to the members of the assembly.15 the first reading of the draft law commences with its presentation by the sponsor, and continues with presentations by the rapporteur of the functional committee, representatives of parliamentary groups and members of the assembly.16 a voting in principle concludes the first reading. following the approval of the draft law in the first reading, the assembly assigns for further review one of the functional committees as lead committee and the main committees.17 the leading committee reviews all submitted amendments and decides whether to take them into consideration when preparing a new text of the draft law. amendments to the draft law may be introduced by a member of the assembly, parliamentary group, parliamentary committee, and the government, within two working weeks from the approval in principle. the second reading commences with a presentation of the report of the leading committee. once the report is presented, representatives of main committees, representatives of parliamentary groups, representatives of the government and members of the assembly are entitled to discuss and present comments regarding the proposed amendments.18 the second reading of draft law continues by a review and voting on the proposed amendments to be followed with an adoption of the draft law in its entirety.19 it should be noted that when a draft law does not receive the sufficient number of votes for its adoption in the second reading, the assembly upon the request of the sponsor of the draft law can decide to present the draft law to a third reading together with the adopted amendments.20 however, those amendments that were rejected in the second reading or those the content of which is similar with amendments of the 14 rules of procedure of the assembly of kosovo, art 54 (rules of procedure). 15 rules of procedure (n 14) art 56 para 2. 16 rules of procedure (n 14) art 56 para 4. 17 rules of procedure (n 14) art 57 para 1. the main committees include: the committee for legislation and judiciary; the committee for budget and finance; the committee for european integrations; the committee for human rights; gender equality, missing persons and petitions; and the committee for rights and interests of communities and returns. 18 rules of procedure (n 14) art 58 para 1. 19 rules of procedure (n 14) art 58. 20 rules of procedure (n 14) art 58. 25 the legislative veto from the perspective of the kosovo constitution second reading cannot not be presented for the third reading.21 the law adopted by the assembly is signed by the chairman of the assembly within ten working days from the day of its adoption, following which is sent to the president of the republic for promulgation.22 the legislative drafting process is concluded when the president promulgates a law, which occurs within 8 days from the receipt of a law. but a law enters into force fifteen (15) days after its publication in the official gazette of the republic of kosovo except when otherwise specified by the law itself.23 this is of course only a general description of the main phases of the law drafting process in kosovo, which may be considered to have been sufficiently regulated in kosovo by way of laws and regulations. but the legislative process yet remains a complex undertaking and is often considered to be a challenge for drafting authorities in kosovo to deliver qualitative legislative products. linguistic ambiguity, legal inconsistency and sometimes lack of big-picture policy considerations still compromise legislative integrity. in this regard, better communication and cooperation between the three branches of the government needs to be fostered to ensure unification of legal drafting techniques and streamline the law making process at all levels. in particular, it is of great importance for the drafting authorities in kosovo to pay more attention to the policy analysis before the drafting of legislation begins. this is essential to ensure a well-drafted and properly implemented law in a longer run. 4. legislative veto: a structural analysis although the constitution does not employ the specific term “veto”, the content of article 84 para. 6 of the constitution clearly suggests that the president has the right to temporarily prevent entry into force of a law enacted by the assembly if it considers that a law is harmful to the legitimate interests of kosovo or one or more communities.24 this structural arrangement 21 rules of procedure (n 14) art 59 para 2. 22 rules of procedure (n 14) art 61 paras 1-2. 23 constitution (n 1) art 80 para 6. 24 constitution (n 1) art 84 para 6. for more on presidential legislative veto in the general context see chad eggspuehler, ‘the s-words mightier than the pen: signing statements as express advocacy of unlawful action’ [2007/2008] 41 gonz. l. rev. 461; courtney odishaw, “curbing legislative chaos: executive choice or congressional responsibility?” [1998] 74 iowa l. rev 277; michael rappaport, ‘the president's veto and the constitution’ [1992] 87 nw. u.l. rev. 736; aaron zibart, “eulogizing the line item veto act: clinton v city of new york and the wisdom of presidential legislating” [1999/2000] 88 ky. l.j. 505; sofia biller, “flooded by the lowest ebb: congressional responses to presidential signing statements and 26 the denning law journal suggests that the constitution has provided for a qualified negative legislative veto, whose exercise depends on the grounds contemplated by the constitution. there are two structural grounds for vetoing legislation that are implicit in the constitution. the rather broad conceptual framework of protection of legitimate interests of the republic, and the specific adherence to the protection of the community interests. with regard to the latter, the reasons of the constitution emphasising the importance of protecting the community interests from parliamentary legislative encroachments are worthy of explanation. the president’s involvement for the protection the interests of the communities in the course of the legislative activities originate from the constitutional framework for provisional self-government institutions in kosovo, which provided:25 “within 48 hours from the approval of a law by the assembly pursuant to paragraphs 9.1.37 or 9.1.38 above, any member of the assembly, supported by five additional members, may submit a motion to the presidency claiming that the law or certain of its provisions violate vital interests of the community to which he belongs. the motion shall set out a reasoned explanation of the claimed violation. a motion may be made on the grounds that the law or provisions discriminate against a community, adversely affect the rights of the community members under chapters 3 or 4, or otherwise seriously interfere with the ability of the community to preserve, protect or express its ethnic, cultural, religious or linguistic identity.” however, as bieber argues commenting the exercise of the veto powers in the bosnia, kosovo and fyrom, the constitutional framework in fact gave “only serbs, and not the other small communities the possibility of delaying legislation” given the fact that the constitutional framework gave serbs ten guaranteed seats in the assembly.26 this means that only a majority of serbs were able to challenge the law enacted by the assembly. the protection of the rights and interest of the communities by presidential veto was further developed by the comprehensive proposal for the kosovo status settlement, which authorised the president of kosovo to “return once to the assembly for executive hostility to the operation of checks and balances” [2008] 93 iowa l. rev. 1067; george tsebelis, “veto players and law production in parliamentary democracies: an empirical analysis” [1999] 93 the american political science review, 591. 25 constitutional framework for the provisional institutions of self-government in kosovo 2001 s 9(1)(39). 26 sid noel, from power sharing to democracy: post conflict institutions in ethnically divided societies (mcgill queens university press, 2005) 96. 27 the legislative veto from the perspective of the kosovo constitution reconsideration any bill he considers detrimental to the legitimate interests of one or more communities.”27 hence the constitution has virtually borrowed the exact formulation of the comprehensive proposal in giving the president the legislative veto powers. today the legislative veto constitutes an appropriate mechanism in the hands of communities to safeguard their rights and interests against constitutionally suspect legislation or parliamentary omnipotence. the right to return legislation serves essential constitutional functions. first, the president’s authority to return constitutionally objectionable laws enables the president to have a share on the legislative process representing the unity of the people. in this representative capacity “the president’s most important role is to stave off legislation that might be improved or put aside upon more mature and sedate reflection.”28 second, the occasional use of the right to return the adopted law for parliamentary reconsideration enables the president to “contribute to the national constitutional dialogue and thus play a more active role in the scheme of constitutional deliberation.”29 the presidential engagement in the review of adopted law reinforces the conception that it is not only the courts being engaged in the review of constitutionality of legislation. as professor broughton argues “too often, constitutional deliberation is distorted by the mistaken notion that the courts are, or should be the exclusive expositors of the constitution.”30 as some constitutional scholars have argued only a popularly elected president could serve as the “guardian of the constitution.”31 that said, constitutional deliberation would not be considered alien to other political branches, in particular for a president acting as “pouvoir neuter” in parliamentary democracy promoting the constitutional dialogue as a “key element of the president’s role as constitutional deliberator and interpreter outside the judiciary.”32 as the us supreme court recalled in the immigration and naturalization service v. chadha case: “the president's participation in the legislative process was to protect the executive branch from congress and to protect the whole people 27 comprehensive proposal for kosovo status settlement, un doc s/2007/168/add.1. 28 gary gregg, the presidential republic: executive representation and deliberative democracy (lanham, rowman & littlefield publishers, 1997) 70. 29 r broughton, “rethinking the presidential veto” (2005) 42 harvard journal on legislation 91. 30 broughton (n 29) 91. 31 on the role of the president as a guardian of the constitution see carl schmitt, der hüter der verfassung, (duncker & humblot; 1996). 32 broughton (n 29) 91. 28 the denning law journal from improvident laws. the division of the congress into two distinctive bodies assures that the legislative power would be exercised only after opportunity for full study and debate in separate settings.”33 a textual reading of the kosovo constitution provides three constitutional avenues from which the president can depart in the course of the review of legislation prior to its promulgation. the first constitutional option would be if the president decides to sign a law within eight (8) days from the date of its reception at the office of the president. this was and still is the typical approach of the presidential leadership in kosovo. the president can simply wait and do nothing within the eight days period, and the law does enter into force ex officio without the president’s promulgating act.34 the third option happens to be if the president would choose to return a law by stating written objections to the assembly. the exercise of the president’s power to return a law for reconsideration is subject to the following constitutional requirements which i will briefly analyse below. the presentment clause the requirement of the kosovo constitution that all adopted laws be presented to the president for promulgation is constitutionally unambiguous. presentment of the approved law to the president for promulgation is clearly provided by the constitution: “laws adopted by the assembly are signed by the president of the assembly of kosovo and promulgated by the president of the republic of kosovo upon her/his signature within eight (8) days from receipt.”35 according to the rules of procedure of the assembly of kosovo the laws adopted by the assembly are initially signed by the chairman of the assembly within 10 working days from the day of its adoption, following which are forwarded to the president of the republic for promulgation.36 however, there is one exception to this general rule and that is when a law, after being returned by the president based on the grounds specified by the constitution, is approved by the assembly. such circumstances of course render it unnecessary for the chairman of the assembly to present the approved law to the president for promulgation since the approved law is considered automatically promulgated once voted by the assembly. 33 ins v chadha (1983) 462 us 919. 34 constitution (n 1) art 80 para 5. 35 constitution (n 1) art 80 para 2. 36 rules of procedure (n 15) art 61. 29 the legislative veto from the perspective of the kosovo constitution the exercise of the right of referral only once. another limitation of the president’s vetoing powers is encountered in article 84 para. 6 of the constitution, which defines in clear terms that the president’s right for the referral of a law back to assembly may be exercised only once. the one-time presidential veto is typical for power-sharing democracies to ensure that parliaments would not be prevented from discharging their legislative powers. it is obvious that the president’s veto power is not only to rubberstamp parliamentary legislative enactments. the one-time exercise of the veto right is a sufficient mechanism to prevent navigation of improper legislation. the qualified veto power enables the president to state objections to the law by fostering debate and further discussion on the contested points of a law. the presidential intervention in the legislative process is basically to enable the president to protect his constitutional powers in the constitutional democracy and as hamilton has commented to “counter the passage of bad laws, through haste, inadvertence, or design.”37 what hamilton meant by “bad laws” is not sufficiently clear but as professor broughton argued “his meaning of a bad law is not entirely clear on its face […] but it can be deduced that hamilton meant to refer to something other than a law that aggrandises congressional power at the expense of the executive.”38 although it may be considered that the use of the presidential veto only once constitutes a weak and an ineffective tool in the hands of the president to oppose the legislative attempts of the government, such an instrument is certainly an effective way to prevent the legislature from passing laws that may endanger the legitimate interests of kosovo. clearly in multi-party systems that are characterised with politically-fragmented parliaments, attaining the absolute parliamentary majority to overturn a decision of the president is often a difficult undertaking. but, even if it does, the president can still temporarily block the government’s legislative attempt in the assembly by contesting the enacted law before the constitutional court for the lack of compatibility with the constitution. the timeframe for the review of a law. the deadline for the review and signing of the laws after their enactment by the assembly is another constitutional constraint in the exercise of the presidential legislative veto. according to article 84 para 6 of the constitution, the president has 8 (eight) days at its disposal to sign the law enacted by the assembly from the date of its receipt. there is no question that 37alexander hamilton “the federalist no. 73” in the r broughton, “rethinking the presidential veto” (2005) 42 harv. j. on legis. 105. 38 ibid. 30 the denning law journal the constitution has followed the patterns of some regional constitutions, which have introduced similar timeframes to prevent unreasonable delays on part of the president when reviewing legislation prior to its promulgation. the question is, however, whether the eight (8) day period is sufficient to conduct a thorough legislative review. let us first see how the timeframe of the legislative review has been addressed in some constitutions. for example, according to the czech constitution, “the president of the republic has the right to return an adopted law, except a constitutional law, giving reasons, within fifteen days of the day of its transmission to the presidency.”39 the greek constitution has given the president one month to review and promulgate the law voted by the parliament, which is a period significantly lengthier than that compared to the kosovo constitution.40 these examples demonstrate that the assigned timeframe for the review of laws after their enactment by the assembly is significantly longer than that provided by the kosovo constitution. in kosovo, however, although it may seem that the timeframe for a review of laws prior to their promulgation is reasonable, the actual workload at the president’s legal office shows that the eight (8) day period may not be sufficient to allow a detailed scrutiny of the enacted legislation.41 it is useful to recall that certain laws, due to their size and complexity, may require extra time and human efforts to be properly scrutinized prior to their promulgation by the president. another difficulty is that the president’s office is sometimes confronted with a dynamic legislative activity of the assembly, which is obvious for the country’s efforts to join the european union. in such circumstances, the timeframe for review of legislation could not be sufficient to enable the legal team to conduct a vigilant and structural review of the laws enacted by the assembly. therefore, as the president is not entitled to extend the timeframe set by the constitution for the review of laws enacted by the assembly, it may be assumed that the only possible way to ensure a longer legislative review timespan is by way of constitutional amendments. and, speaking about constitutional amendments, it should be noted that the 2008 kosovo constitution will most likely undergo some major changes in a near future since certain constitutional norms have resulted to be too ambiguous to enable proper functioning of constitutional bodies (such is the case with article 95 regarding the process of nominating 39 constitution of czech republic, art 50. for an overview of the constitutional practices of the referral of a law back to parliament by the head of states see the venice commission report on the referral of a law back to parliament by the head of state adopted by the venice commission at its 29th session (15-16 november 1996). 40 constitution of greece, art 42. 41interview with the head of the legal department of the office of the president and lecturer of law at the university of prishtina (faculty of law) xhafer tahiri. 31 the legislative veto from the perspective of the kosovo constitution the candidate for prime minister and article 67 regarding the election of the chairman of the assembly). the president is not entitled to propose amendments. a recent judgment of the kosovo constitutional court has firmly established that the president is not entitled to come up with his own amendments in the course of the review of the legislation adopted by the assembly.42 a few words about the judgment are important here. on 15 march 2012, the assembly adopted the law no. 04l-084 on pension of the members of kosovo security forces [hereinafter as “law on pensions of ksf members”] and sent it to the president for promulgation as provided by the constitution. on 3 april 2012 the president refused to sign the law and decided to send it back to the assembly for reconsideration. in its legislative return statement the president proposed insertion of a new article in the law in order to ensure compliance with international monetary fund obligations and enable kosovo to receive financial support in a form of soft loans or technical assistance.43 on its session held on 3 may 2012, the assembly refused to incorporate the president’s proposal, and the law on pensions of ksf members was declared as promulgated. the president contested the constitutionality of the voting of the law on pensions of ksf members after its return to the assembly for reconsideration and claimed that presidential competencies to return legislation for reconsideration were violated.44 the constitutional court initially assessed whether the president of the republic, when returning the law for parliamentary reconsideration has the right to propose amendment to returned law “without challenging the adopted law or 42president jahjaga v assembly of kosovo [2012] ko 57/12 1 (cc). for more on the operation and jurisprudence of the kosovo constitutional court see enver hasani/p paczolay/m riegner, constitutional justice in south east europe. constitutional courts in kosovo, serbia, albania and hungary between ordinary judiciaries and the european court of human rights (nomos/giz, 2012); visar morina, “the newly established constitutional court in post-status kosovo: selected institutional and procedural concerns” [2010] 35 review of central and east european law 129; fisnik korenica, dren doli, “kosovar constitutional court's jurisdiction: searching for strengths and weaknesses” [2010] 11 german law journal 803. steve hill, paul linden-retek, “supervised independence and post-conflict sovereignty: the dynamics of hybridity in kosovo’s new constitutional court” [2011] 36 yale journal of international law online 26. 43the president of the republic proposed to the assembly an additional paragraph to article 27 of the law on pension of ksf members, as follows: “in case of lack of public funds, the government may downsize the benefits from the law, in order it does not endanger financial security of kosovo.” 44 president jahjaga v assembly of kosovo [2012] ko 57/12 1 (cc) para 10. 32 the denning law journal any of its specific provisions.”45 the court ruled that it cannot. according to the constitutional court nowhere does the constitution provide that the president is entitled to propose concrete amendments in the law pending promulgation.46 the constitutional court went on saying that the president is entitled to propose legislation based on article 79 of the constitution and articles 53 para. 1 and 54 of the rules of the assembly.47 because the president did not exercise that authority, but instead used the competence under article 84 para. 6 for returning the law for reconsideration, the referral back to the assembly was invalid, and the assembly never had a proper return before it – concluded the constitutional court.48 this constitutional court decision has set an important standard in the constitutional relationship between the assembly and the president in the process of a review of legislation prior to promulgation by barring the president from proposing amendments to the law that is subject of presidential review. the constitutional court has rightfully echoed the position that neither the constitution nor rules of procedure of the assembly have authorised the president to suggest concrete amendments in a law that is returned to the assembly for reconsideration. if the president would have enjoyed the right to suggest concrete amendments in a law that is approved by the assembly, it would have certainly distorted the system of constitutional balances in the context of legal drafting process in kosovo. therefore, in line with the reasoning of the constitutional court decision, it appears to be sufficient for the president to only veto a law and send it back to the assembly with a letter outlining the reasons for its rejection. 5. the use of the legislative veto: challenges and constraints the powers of the president to return a law for reconsideration are broad but not unlimited from constitutional point of view. article 84 para. 6 of the constitution enable the president to return adopted laws for re-consideration, “when he/she considers them to be harmful to the legitimate interests of the republic of kosovo or one or more communities.”49 although the language provided in article 84 para. 6 is broad leaving ample room for interpretation, 45 president jahjaga v assembly of kosovo [2012] ko 57/12 1 (cc) para 37. 46 president jahjaga v assembly of kosovo [2012] ko 57/12 1 (cc) para 61. 47 article 79 of the kosovo constitution provides: the initiative to propose laws may be taken by the president of the republic of kosovo from his/her scope of authority, the government, deputies of the assembly or at least ten thousand citizens as provided by law. 48 president jahjaga v assembly of kosovo [2012] ko 57/12 1 (cc) para 61. 49 constitution (n 1) art 86. 33 the legislative veto from the perspective of the kosovo constitution the constitution has boldly underlined two constitutional areas based on which the exercise of the president’s legislative veto can be made. the president is therefore bound to reflect along the categories that are implicit in article 84 para. 6 of the constitution. it is worth to mention that some constitutions provide no guidance with regard the scope of the presidential review of legislation prior to its promulgation.50 according to the french constitution, the president of the republic promulgates acts of parliament within a period of 15 days following their final adoption and transmission to the government. but the president “may, before the expiration of this time limit, ask parliament to reconsider the act, or some of its articles. this reconsideration may not be refused.”51 similar constitutional grounds for the return of law for parliamentary reconsideration are provided by the basic law of the federal republic of germany according to which “laws enacted in accordance with the provisions of this basic law shall, after countersignature, be certified by the federal president and promulgated in the federal law gazette.”52 despite enumeration of the grounds for refusal of legislation, the kosovo constitution has given the president a wide magnitude of reviewing powers to assess whether the enacted legislation threatens the legitimate interests of kosovo or of one its communities. the qualification is made by the president and no other constitutional organ can make constitutional objections to the president’s decision in returning a law for reconsideration. on the other hand, it is difficult to demarcate the boundaries of the president’s veto powers when returning legislation for reconsideration. the exercise of the president’s legislative veto largely depends on the nature of the law, its content and the manner in which the law was adopted. it is unquestionable that the president ought to defend his/her constitutional competencies provided by the constitution against potential parliamentary intrusions. likewise, the president ought to temporarily block constitutionally deficient legislation, which threatens constitutional rights and freedoms or endangers constitutional principles such as the separation of powers, the rule of law or the principle of democracy.53 there are essentially two major constitutional grounds upon which the legislative veto can be exercised, which will be discussed in the following section of this article. 50 venice commission report (n 39). 51 constitution of france 1958 art 10. 52 basic law of the federal republic of germany 1949 art 82. 53 broughton (n 29) 111. 34 the denning law journal procedural review the manner in which the assembly adopts laws, including the required majority for their adoption is regulated by the constitution.54 there are generally three forms for approval of laws at the assembly of kosovo. the first and the most dominant variant is adoption of legislation by a simple majority vote.55 certain laws, however, due to their relevance and complexity require a qualified majority of votes, including the approval of the deputies holding seats reserved or guaranteed for the communities. this is related to the legislation of vital interest for kosovo, for the approval of which the majority of the assembly deputies present and voting and the majority of the assembly deputies’ present and voting holding seats reserved or guaranteed for representatives of communities that are not in the majority is required.56 finally, laws may be adopted by the absolute majority (which requires the majority vote of all deputies). for instance when the president returns an enacted law to assembly for reconsideration, such law is approved by a majority vote of all its deputies.57 until the constitutional court’s decision on the president’s legislative veto powers was issued, there has been some constitutional ambiguity concerning the manner in which the legislative veto was overridden. in a few instances legislation returned by the president was adopted based on a simple majority vote, which is in open contradiction with the constitution. in some other cases, the functional committee proposal, but not the returned law as a whole, was put for voting at the plenary session, which is not what the constitution dictates.58 this constitutional ambiguity has also been generated by the rules of procedure, which have not followed the language of the constitution regarding the approval of the returned legislation by the president. article 61 of the rules of procedure provides: 54 constitution (n 1) art 80. 55article 80 para 1 of the kosovo constitution provides that “laws, decisions and other acts are adopted by the assembly by a majority vote of deputies present and voting, except when otherwise provided by the constitution.” 56constitution (n 2) art 82. the laws that require double majority voting include the laws changing municipal boundaries, establishing or abolishing municipalities, defining the scope of powers of municipalities and their participation in inter municipal and cross-border relations; laws implementing the rights of communities and their members, laws on the use of language; laws on local elections; laws on protection of cultural heritage; laws on religious freedom or on agreements with religious communities; laws on education; laws on the use of symbols, including community symbols and on public holidays. 57 constitution (n 1) art 80 para 4. 58minutes of the plenary session of the assembly of kosovo, p123 dated 27 july 2010. 35 the legislative veto from the perspective of the kosovo constitution “if the president of the republic returns the law for its review in the assembly, the presidency of the assembly shall refer it immediately to the functional – lead committee for its review. functional committee shall only review the issues contained in president’s decision. the committee shall, within two working weeks from the day of receipt, present to the assembly a report with recommendations. the assembly shall with majority of votes of all members of the assembly decide on approval of recommendations addressing the president’s remarks presented by the committee, which, together with the approved amendments, shall be considered as promulgated.” however, the constitution suggests for a different constitutional arrangement than that provided by the rules of procedure on the manner in which the returned law is approved. the constitution provides that on occasion of a return of a law by the president for reconsideration, the returned law must be approved by the majority of all the deputies of the assembly. article 61 of the rules of procedure is clearly in stark contradiction with article 80 para. 4 of the constitution. the following example illustrates the procedural errors that have come up in the process of dealing with the president’s legislative veto. on 20 april 2012, the assembly adopted the criminal code of kosovo (hereinafter “the code”). media and civil society representatives were concerned with the content of articles 37, 38 and 39 of the code that regulated criminal liability for criminal offences committed through media, and requested from the president to veto the law, which the president did on 4 may 2012.59 the president refused to sign the law on the grounds that the contested articles of the code contradicted article 40 (freedom of expression) and article 42 (freedom of media) of the constitution. in addition, the president also invoked articles of the european convention for the protection of human rights and fundamental freedoms and its protocols, which by virtue of article 22 of the constitution is directly applicable.60 the president’s concerns were legitimate but unanticipated parliamentary developments prevented the assembly from accommodating the presidential constitutional objections in the law. at its session of june 22, 2012 the assembly debated regarding the concerns raised in the decision of the president for removal of contested articles of the code but failed to secure an absolute majority of 61 votes to accommodate the constitutional concerns raised by the president. it is important to note that the assembly has not put 59the contested articles of the criminal code of kosovo dealt with the criminal liability of chief editors, publishers, printers or manufacturers, protecting sources of information and application of general provisions on criminal liability. 60 presidential decree (2012) 561/1. 36 the denning law journal for voting the entire law as required by the constitution but only the recommendation of the functional committee requesting removal of the article 37, 38 and 39 of the criminal code.61 the contested provisions of the code were removed only after the assembly adopted the law on amendments to the criminal code on 19 october 2012. in addressing the majority voting requirement required for overriding the presidential legislative veto, the constitutional court recalled the constitutional requirement for the absolute majority as laid down by article 84 para. 4 of the constitution. the constitutional court noted that “provided that the president of the republic exercised the veto power … in order to overturn that presidential veto, it would be necessary that at least 61 deputies vote in favour of the adopted law that was returned by the president of the republic.”62 this was not the case in the course of the parliamentary voting of the returned criminal code. hence, it becomes clear that the president enjoys the constitutional power to ensure that the procedural requirements for the law adoption [as laid down by the constitution and the rules of procedure of the assembly] are duly observed. if the president finds out that the assembly has failed to adhere to the procedural requirements for adopting the law, it is the constitutional duty of the president not to sign a law and to return the law to the assembly and have the law enactment procedures repeated. substantive review in the following part of this article we address the substantive grounds for review of laws before their promulgation by the president, including the parameters of this review. as noted earlier, the scope of the president’s power to determine constitutionally objectionable laws is broad. this is a result of the far-reaching wording that has been employed at the constitution, which gives the president abundant authority to negate enacted-legislation. in broad outline, the constitution provides for two avenues for a review of legislation prior to its promulgation. the first avenue is to assess whether the enactedlaw constitutes a threat for the legitimate interests of the state. it is of course obvious that what constitutes a threat for the state interest is difficult to quantify. it all depends on the nature and the level of such threat, and whether the use of the legislative veto is prudent and proportional to achieving its goal i.e. preventing the parliamentary majority from passing constitutionally objectionable legislation. the second avenue of presidential legislative review powers is verifying whether the enacted law adversely affects any of the vital interests of the communities as provided by the constitution. in this regard 61 kdi, ‘minutes of the assembly session’ (www.votaime.org 2012) <http://www.votaime.org/transkriptet/qershor/22062012.pdf> accessed 25 july 2014. 62 president jahjaga v assembly of kosovo [2012] ko 57/12 1 (cc) para 76. 37 the legislative veto from the perspective of the kosovo constitution one should recall that the constitution has devoted an entire chapter for the protection of the rights and interest of the communities. members of the communities have been given extra-constitutional rights in addition to those contemplated by chapter 2 of the constitution.63 moreover, the constitution provides that state authorities are obliged to respect the standards provided in the council of europe framework convention for the protection of national minorities and the european charter for regional or minority languages, and it establishes the consultative council for communities, which acts under the authority of the president of the republic of kosovo in which all communities are represented.64 the president therefore enjoys broad legislative review powers when receiving legislation for promulgation. however, a critical reading of the constitution seem to suggest that the president should demonstrate reasonable care in preserving the integrity of the legislative process when reviewing laws passed by the assembly as noted at the constitutional court’s decision. in this sense as long as legislative veto is exercised within the contemplated constitutional framework i.e. when there is a substantial violation of state interests or the separation of powers to the detriment of any of the branches of the government, the use of the legislative veto is constitutionally justifiable. the uncertainty may only arise when the president acts beyond the contemplated constitutional boundaries where the legislative veto is used as professor broughton calls it a “policy-making device for dictating the content of national legislation.”65 and, while demarcation of the scope of the presidential review powers implicit in article 84 para. 6 of the constitution is difficult, there seem to be some orientating benchmarks, which could serve as a useful guide for determining whether the enacted legislation is consistent with constitutional requirements, which we will be briefly elaborate in the following section of this article. the supremacy clause it should be noted that the power of the president to defend the constitution and to reject promulgation of constitutionally objectionable laws is unquestionable. as professor johnsen has written, the president can bring “a valuable perspective to the debate over the constitution’s meaning.”66 according to the constitutional supremacy clause it is the duty of the president to refuse to sign any statute with constitutional defects and to notify 63 constitution (n 1) art 57 para 1. 64 constitution (n 1) art 60. 65 broughton (n 29) 133. 66 dawn johnsen, “the constitution under clinton: a critical assessment: presidential non-enforcement of constitutionally objectionable statutes” [2000] 63 law & contemp. prob. 7, 36. 38 the denning law journal the assembly of his constitutional objections. in kosovo the constitution enjoys the status of the highest legal act whereby every law and other legal acts must be in compliance with it.67 therefore, it is the duty of the president to deter any legislation which in his view is unconstitutional. judge frank easterbrook rightfully argues the power to safeguard the constitution is the duty of every branch power. according to easterbrook “no law may go into force unless all three branches agree that it is constitutional. each, acting within its sphere, has the power to say no: congress not to enact, the president not to approve in his legislative role or enforce in his executive role, and the court to set aside.”68 such prerogative according to madison enables the president to “restrain the legislature from encroaching on the other coordinate departments, or on the rights of the people at large; or from passing laws unwise in their principle, or incorrect in their form.”69 the duty to protect the constitutional order is implicit in the oath text provided by the law on the president which states “i swear to commit all my powers to the preservation of independence, sovereignty and territorial integrity of republic of kosovo, to ensure human and citizen rights and freedoms, to respect and protect the constitution and the laws, to maintain peace and welfare of all citizens of republic of kosovo and to conduct all my duties with consciousness and responsibility.”70 invoking the constitutional supremacy clause has been the general practice in the exercise of the legislative veto in kosovo. for example, when the current president of kosovo returned the criminal code of kosovo (adopted on 20 april 2012) for parliamentary reconsideration on the grounds that it contained articles that curtailed down freedom of media standards, it stated incompliance provisions of the constitution.71 recalling the supremacy of the constitution the president stated that adoption of the criminal code would create such constitutional disturbances that would adversely impact the constitutional right on freedom of expression and media, including the european convention for the protection of human rights and fundamental 67 constitution (n 1) art 16. 68 michael crabb, “the executive branch shall construe”: the canon of constitutional avoidance and the presidential signing statement” [2008] 56 kan. l. rev. 711, 725. 69 harold krent, presidential powers (1st, new york university press, 2005) 17. 70 law on the president 03/l-094 (2009). 71 constitution (n 1) art 40. 39 the legislative veto from the perspective of the kosovo constitution freedoms and its protocols, which by virtue of article 22 of the constitution is directly applicable and has superiority over the laws of kosovo.72 the separation of powers in one of the presidential objections the president underlined the importance of protection the separation of powers and the concept of constitutionally implied powers. this actually was one of the rarest cases when the president used the legislative return powers to protect the independent presidential constitutional powers against in what the president portrayed as the tendency of the assembly to amputate presidential competencies contemplated by the constitution and allocate them unconstitutionally within the assembly portfolio. here are the facts of the case. on 12 july 2010, the assembly adopted the law no. 03/l-209 on central bank authority (“law on cba”). following its enactment, the law on cba was sent to the president for promulgation. the president refused to sign the law on the grounds that it contained provisions related to the appointment and removal of a governor or any non-executive member of the central bank board (cbb) that were contrary to the constitution. the constitution unequivocally provides that the president “appoints the governor of the central bank of the republic of kosovo who will also act as its managing director, and appoints the other members of the bank’s board.”73 this competency falls under the independent constitutional competencies of the president whose exercise is not dependent on authority of the other constitutional organ based on the principle of checks and balances. however, the law on cba provided a system for the appointment and removal of the central bank board different from that of the constitution. the law on cba authorized the assembly to conduct the initial selection of the candidates for the central bank board, and forward the proposed candidates to the president for endorsement. with regard to dismissal, the law gave the assembly the authority to initially decide for dismissal of a governor or non-executive members of the central bank board, a decision which would then be sent to the president for approval.74 however, art. 41 para 3 of the vetoed law provided that if the president does not act on the assembly proposed measure of dismissal within 15 days, the decision of the assembly will enter into force. it should be recalled that competencies of the 72 president’s decree 556/01 2012 73 constitution (n 1) art 84 para 27. 74 law no.03/l –209 on central bank of the republic of kosovo. article 41 regulated the disqualification and removal from the central bank board. law entered into force after having been returned for parliamentary reconsideration and voted by the aok on 27 july 2010. 40 the denning law journal assembly are contemplated in article 65 of the constitution, and nowhere does the constitution vests the assembly with authority to propose to the president candidates for appointment at the cbb. departing from this constitutional ground, the president refused to sign the law on cba arguing that the law violated the apportionment of constitutional competencies provided by the constitution and violated the principle of the separation of powers that is inherent in the constitution. in president’s understanding, enactment of the law on cba was a blatant invasion by the assembly of the constitutionally-independent prerogatives of the president on the appointment of a governor another members of the cbb. the president argued that promulgation of the law would seriously jeopardise the legitimate interests of kosovo and would prevent the president from fulfilling his constitutional duty as a guarantor of the constitutional functioning of state institutions. on 27 july 2010, the assembly decided with absolute majority to accept the president’s proposal and modify article 43 para 1. of the law that provided for the entry into force of the assembly decision on dismissal in case the president fails to endorse the proposal within 15 days.75 surprisingly, the assembly voted only the president’s concrete recommendation stated at the decree but not the returned law on cba as required by the constitution. in an attempt to accommodate the president’s constitutional objections, the assembly only inserted a paragraph providing that “the president can approve or not approve the assembly proposal for dismissal of the governor or any member of the central bank board of kosovo.” however, despite the approval of the presidential return statement, the assumed responsibilities of the assembly on appointments or dismissals at the central bank authority could not be fully justified on constitutional grounds. international law the constitution of kosovo offers another avenue of the presidential review of laws adopted by the assembly: compliance with international law. therefore a few words about the status of the international law in the kosovo constitution are important to be mentioned here. the constitution pursues a friendly approach towards international law. the constitution not only contemplates the primacy of the international law versus ordinary legislation but it also gives direct effect in terms of application to some of the most important international human rights instruments enumerated in article 22 of the constitution. hence, the constitution’s approach in kosovo seems to correspond to the doctrine of monism whereby norms of international law are considered an integral part of the national legal system. this is clearly 75 the official transcript on the plenary session of the assembly of kosovo, dated 27 july 2010, is available at the official site of the assembly of kosovo. 41 the legislative veto from the perspective of the kosovo constitution provided in article 19 of the constitution which states that “ratified international agreements become part of the internal legal system after their publication in the official gazette in kosovo” and become directly applicable “except for cases when they are not self-applicable and the application requires the promulgation of a law.”76 this primacy and direct applicability of international law in the kosovo legal system is considered by some international law scholars as a “highly progressive approach to international law.”77 the constitution further provides that main international human rights instruments, including the european convention for the protection of human rights and fundamental freedoms (echr) and its protocols, are directly applicable “and, in the case of conflict, have priority over provisions of laws and other acts of public institutions.”78 that said, it is perfectly adequate for the president to extend the scope of presidential review by taking into account the requirements of the applicable international law with the enacted legislation. for this purpose the president has recently shown special consideration towards reliance on international law in legislative veto practices. one recent example is the decision to return the criminal code for reconsideration where the president has invoked provisions of the echr in 76 constitution (n 1) art 19 para 1. see williman slomanson, fundamental perspectives on international law (cengage learning, 2010) 17. 77 see gideon boas, public international law: contemporary principles and perspectives (edward elgar publishing, 2012) p 153. see also visar morina, fisnik korenica, and dren doli. “the relationship between international law and national law in the case of kosovo: a constitutional perspective.” [2011] international journal of constitutional law 274. see also armin von bogdandy “pluralism, direct effect, and the ultimate say: on the relationship between international and domestic constitutional law.” [2008] international journal of constitutional law (2008) 397. 78 constitution (n 1) art 22. providing for the direct applicability of international agreements and instruments the constitution in its article 22 provides that ‘human rights and fundamental freedoms guaranteed by the following international agreements and instruments are guaranteed by this constitution, are directly applicable in the republic of kosovo and, in the case of conflict, have priority over provisions of laws and other acts of public institutions: (1) universal declaration of human rights; (2) european convention for the protection of human rights and fundamental freedoms and its protocols; (3) international covenant on civil and political rights and its protocols; (4) council of europe framework convention for the protection of national minorities; (5) convention on the elimination of all forms of racial discrimination; (6) convention on the elimination of all forms of discrimination against women; (7) convention on the rights of the child; (8) convention against torture and other cruel, inhumane or degrading treatment or punishment. 42 the denning law journal the same degree with provisions of the constitution.79 not only that it is convenient for the president to check the enacted legislation based on the international law, but according to article 53 of the constitution any interpretation of the human rights and fundamental freedoms that are guaranteed by the constitution must be done in the manner that is “consistent with the court decisions of the european court of human rights.” the president is therefore obligated that in the course of reviewing legislation enacted by the assembly to ensure that the norms of ratified international agreements or of those international human rights instruments that are directly applicable are not violated. it is for this reason that the tendency to uphold international law in reviewing legislation prior to its promulgation in kosovo is increasing. reliance on international law and particularly on the echr is evident for the legislation affecting human rights and fundamental freedoms. as noted earlier the echr enjoys a legal status that is higher than the ordinary legislation, and the constitutional court of kosovo has repeatedly reminded state institutions that observance of the echr and its jurisprudence on matters involving human rights interpretations is of an immense importance.80 decisions of the constitutional court the interesting aspect concerning the use of the presidential powers in the area of law review is not whether the president has the power to interpret the enacted law for compatibility with the constitution but whether the president can veto legislation based on constitutional understandings that contradict understandings implicit in prior constitutional court judgments? in other words the question is whether the president is obliged to follow constitutionally conforming interpretations made by the kosovo constitutional court in the course of the review of laws enacted by the assembly? in light of these questions it is worth noting that kosovo has opted for a centralized version of constitutional review where the authority to resolve a constitutional controversy is vested with the constitutional court whose judgments are obligatory to all and have the force of law. article 116 para. 1 of the constitution provides that “decisions of the constitutional court are binding on the judiciary and all persons and institutions of the republic of 79 president's decree 556/01 2012. 80 see for example gëzim and makfire kastrati against municipal court in prishtina and kosovo judicial council [2012] ki 41/12 (cc); valon bislimi v ministry of internal affairs, kosovo judicial council and ministry of justice [2010] ki 06/10 (cc); imer ibrahimi and 48 other former employees of the kosovo energy corporation v 49 individual judgments of the supreme court of the republic of kosovo [2010] ki 40/09 (cc). 43 the legislative veto from the perspective of the kosovo constitution kosovo.” this means that respect and adherence to the decisions of the constitutional court is constitutionally imperative for every public institution including the president when acting as a law promulgator. moreover, the legislation in kosovo has introduced some further limitations to the president when an adopted law gets challenged for its constitutionality prior to its promulgation. according to the kosovo constitution “ten (10) or more deputies of the assembly of kosovo, within eight (8) days from the date of adoption, have the right to contest the constitutionality of any law or decision adopted by the assembly as regards its substance and the procedure followed.”81 the law on the constitutional court provides that the law adopted by the assembly can be sent to the president for promulgation after the expiry of the deadline provided in article 113 para. 5 of the constitution. but in the event that a law adopted by the assembly is contested on the grounds of constitutionality, the law is sent to the president of the republic of kosovo for promulgation “in accordance with modalities determined in the final decision of the constitutional court.”82 the constitutional court recently warned the president not to promulgate the law on amnesty, which was contested on the grounds of constitutionality within 8 days since its enactment.83 in its press release the constitutional court has reminded the constitutional organs that “any attempt to publish the law or to apply it is unconstitutional and such an act is null and void.”84 until the time of writing, the constitutional court has not yet ruled on the constitutionality of the amnesty law. 6. conclusion this article has sought to define the way in which the presidential legislative veto is exercised in kosovo by taking into account the procedural and substantive factors that are inherent in the course of the legislative review process. by focusing on the kosovan sources of constitutional law, including its national constitutional jurisprudence, the article has attempted to deconstruct the meaning and parameters of the president’s legislative veto powers in a parliamentary-type government. six years after the adoption of 81 constitution (n 1) art 113 para 5. 82 law on the constitutional court 2008 art 43. 83 the law on amnesty was contested by the assembly members from the political movement “vetvendosja” claiming that the law infringed human rights and fundamental freedoms guaranteed by the constitution, including the international covenant for the civil and political rights that is directly applicable in kosovo under article 22 of the constitution. 84 constitutional court press release, dated 25 july 2013 accessible at http://gjkks.org/?cid=2,28,344. 44 the denning law journal the kosovo constitution, the application of the presidential legislative veto to refrain the assembly from passing constitutionally deficient legislation has encountered many challenges. in some cases, this was a result of the constitutionally ambiguous norms while in other cases this may be related to the lack of understanding of the current legislative complexities. as the above mentioned developments in post-status kosovo have unfolded, establishment of a well-structured constitutional dialogue in dealing with presidential return statements both at procedural or substantive grounds has proven to be a difficult undertaking. the lack of a constitutionally-consistent approach for overturning the presidential legislative veto is one the clear examples of the challenges that have confronted the application of the legislative veto in kosovo. such situation rendered the involvement of the constitutional court necessary, which in its 2012 interpretative decision tended to define the procedural dimension of the legislative veto. there is no doubt that constructive improvement of the legislative products is an essential requirement for a rule of law what makes the presidential legislative veto highly important. however, as professor spitzer has emphasised commenting the strategic use of the presidential veto in the united states of america even the veto threat often accomplishes “the purpose of an actual veto”.85 in the case it does not, its use to appeal to the public could also be an effective instrument to refrain the legislators from passing unconstitutional legislation. this is a valid point that deserves consideration in the constitutional landscape of kosovo for as long as the legislative veto is exercised with prudence and pragmatism in order to safeguard the separation of powers being firmly embedded in our constitution. 85 robert spitzer, “why obama must embrace the veto strategy” (http://www.huffingtonpost.com 2011) <http://www.huffingtonpost.com/robert-jspitzer/time-for-an-obama-veto-st_b_803359.html> accessed 25 july 2014. 45 abstract 1. introduction 2. a brief overview of the constitutional competencies of the president the president initiates decision of another organ: the constitution has introduced certain constitutional choices in which the president only initiates the decision of another constitutional body but the president is prevented from the authority to de... the president’s decision ratifies the decision of another organ: in addition to above, the constitution has foreseen other limitations in the constitutional authority of the president to prevent the president from exercising independent constitutional... 3. the legislative procedure 4. legislative veto: a structural analysis the presentment clause the exercise of the right of referral only once. the timeframe for the review of a law. the president is not entitled to propose amendments. 5. the use of the legislative veto: challenges and constraints procedural review substantive review the supremacy clause the separation of powers international law decisions of the constitutional court 6. conclusion the denning law journal 123 denning law journal 2007 vol 19 pp 123-148 the council of europe as a normative backdrop to potential european integration in the sphere of criminal law gerard conway∗ abstract at a european inter-state level, both the council of europe and the european union (eu) have developed cooperation in criminal matters between european jurisdictions. although the eu represents a deeper form of integration and cooperation in legal terms than does the council of europe, the eu also has to date preferred a looser ‘intergovernmental’ means of cooperation in police and criminal matters, as compared to the degree of integration of the common market. this reluctance to integrate, to a greater degree, national systems of criminal law is reflected in the relatively limited nature of the pre-existing council of europe framework of instruments in the field. this article seeks to illustrate this point through an assessment of three of the most relevant council of europe instruments – the european convention of human rights, the convention on mutual assistance in criminal matters, and the convention on extradition – in the light of recent eu developments. introduction two systems of cooperation in the sphere of criminal law exist in europe – that of the council of europe and that of the european union (eu). criminal law is of more central relevance to the council of europe and its primary legal instrument, the european convention on human rights ∗ ba (limerick), m.juris (uppsala), bl (king’s inns); lecturer in law, leeds metropolitan university (2005-6) and brunel university (from september 2007). i am grateful to dr dimitrios doukas, my second phd supervisor at queen’s university belfast, for commenting on a draft of this paper and to the staff of the law library at uppsala university for allowing me to use its facilities when researching this topic. this article developed from a paper given at a conference on globalisation and the criminal law held at the international institute for the sociology of laws (iisj), oňati, spain in may 2006; it also benefited from a period spent as a visiting researcher/scholar at the iisj in january 2007, and i am grateful to the participants of the conference and to the staff of the iisj. i am also grateful to the anonymous referee for several helpful comments that helped improve the initial submission. the council of europe as a normative backdrop to potential european integration in the sphere of criminal law 124 (echr)– which, being concerned with individual rights, is of particular relevance to the exercise of coercive and punitive state power through the application of criminal law. the right to a fair trial in article 6 of the echr, for example, was one of the rights originally set out in the convention in 1950.1 in the eu, cooperation in criminal matters developed as more of an offshoot of a primary concern with economic freedom of trade and the free movement of economic actors. initially in the eu, cooperation in the context of the criminal law began in the 1980s with a core group of states, the benelux countries, who sought to remove administrative restrictions to free movement at their borders, but at the same time to balance this greater freedom with law-enforcement measures, the most important of which was probably an information system for the pooling of data between police forces of the participating countries (the schengen information system). the advent into the sphere of european cooperation of criminal law matters (and foreign policy) began formally only in the early 1990s,2 with the adoption of the pillar structure of the treaty of maastricht.3 however, reflecting the enduring sensitivity of criminal law and foreign policy matters as regards individual member state sovereignty,4 cooperation under the second and third pillars (the third pillar is now, since the treaty of amsterdam, dedicated to police and judicial cooperation in criminal matters5) 1 the convention was opened for signing on 4th november 1950 and came into force, in international law, on 3rd september 1953. 2 although european political cooperation and the schengen convention in the 1980s prefigured the development of the pillar structure at maastricht. generally on criminal law and the eu, see, eg g corstens & j pradel, european criminal law (the hague, kluwer, 2002); jae vervaele, ‘the europeanisation of criminal law and the criminal dimension of european integration’, college of europe european legal studies research papers in law 3/2005 (brugges, college of europe, 2005): http://www.coleurop.be/file/content/studyprogrammes/law/studyprog/pdf/researchpa per_3_2005_vervaele.pdf 3 for an earlier overview, see, e.g. m anderson, m de boer, p cullen, william c gillmore, charles d raab & n walker, policing the european union (oxford, clarendon press, 1995) pp 218-249. 4 on this point in the context of criminal law cooperation, see, eg advocate general henri mayras in case 45/69, boehringer v. commission [1972] ecr 1281, at 1296; g j m corstens, ‘criminal law in the first pillar?’ (2003) 11 european journal of crime, criminal law and criminal justice 131 at 131; vervaele, above n 1 pp 2-3. 5 at maastricht (1992), the third pillar originally related to two main areas – police and criminal law cooperation and asylum, visa and immigration matters. at the treaty of amsterdam (1997), asylum, visa, and immigration matters were transferred to the first pillar (albeit with transitional period before the application of compulsory jurisdiction of the court – the latter was made subject to a unanimous decision of the council – article 67 of the european community treaty/ect), meaning the third http://www.ingentaconnect.com/content/external-references?article=0928-9569(2003)11l.131[aid=6971412] http://www.ingentaconnect.com/content/external-references?article=0928-9569(2003)11l.131[aid=6971412] http://www.coleurop.be/file/content/studyprogrammes/law/studyprog/pdf/researchpaper_3_2005_vervaele.pdf http://www.coleurop.be/file/content/studyprogrammes/law/studyprog/pdf/researchpaper_3_2005_vervaele.pdf the denning law journal 125 lacks the distinctive characteristics of the community method of international law; cooperation is still at an intergovernmental level, with member state sovereignty preponderant relative to the community/union institutions.6 in other words, notwithstanding the high degree of mutual interest represented in the degree of member state cooperation that exists in the project of european integration generally, criminal law and foreign policy cooperation in an eu context are proving resistant to full-scale communitarisation. this general picture would only be modified to a limited extent by the proposed treaty on a constitution for europe, if the latter is adopted – for example, some areas of crime, those with a cross-border or community dimension,7 would be ‘communitarised’, in being subject to qualified majority voting in the council (as regards the passing of legislation) and also subject to the compulsory jurisdiction of the european court of justice (ecj) and to the doctrine of the supremacy of ec law over national law;8 however, most criminal law would remain within the exclusive competence of the member states and criminal procedure would similarly remain largely unaffected (though the constitution does envisage9 the possible adoption of harmonising measures in criminal pillar now relates solely to police and judicial cooperation in criminal matters. a protocol to the treaty of amsterdam further provided for the incorporation of the schengen acquis into the eu. on schengen, see, generally, c jourbet & h bevers, schengen investigated: a comparative interpretation of the schengen provisions on international cooperation in the light of the european convention on human rights (the hague, kluwer, 1996) who conclude, inter alia, that the need for common standards for the protection of rights in the context of the schengen system is not met simply by adherence to the european convention on human rights: “. . . indeed, the role of the european court of human rights as a common, international judge in criminal matters must not be neglected, but the main task of this body is not to guarantee a harmonized interpretation of police powers but to safeguard a minimum level of protection of human rights” (ibid p 542). 6 specifically, in legal terms, the distinguishing characteristics of the first/community pillar (the ‘supranational’ pillar’) that are not found in the other two (‘intergovernmental’) pillars are: supremacy of ec law over national law, direct effect, compulsory jurisdiction of the european court of justice (ecj), qualified majority voting (qmv) in the council of ministers, and co-decision in the passing of legislation for the european parliament (ep). 7 article iii-271 of the treaty establishing a constitution for europe, brussels, 29th october 2004, cig 87/2/04 rev 2. 8 see generally, articles iii 270-277 (judicial cooperation in criminal matters) 9 for general discussion of the provisions of the constitution in this area, see, e.g. a weyembergh, ‘approximation of criminal laws, the constitutional treaty and the hague programme’, (2005) 42 common market law review 1567. the council of europe as a normative backdrop to potential european integration in the sphere of criminal law 126 procedure, this is subject to a requirement of unanimity in the council of ministers10). on the working assumption that the shared values and ideologies that permit the degree of inter-state cooperation that exists in the eu are not necessarily or likely shared to the same degree or extent as between nations in the world more generally, it seems likely that the difficulties and obstacles experienced in the process of greater eu cooperation in criminal matters may be replicated in the context of broader globalisation in criminal matters. to date, international criminal justice has been dominated by international crimes and the international criminal tribunals, whereas eu law is not generally concerned with this special category of crime, but with crime of cross-border concern more generally. in the context of the increased threat of international terrorism over the past decade or so, and the increased opportunities for criminality afforded by the capacity for instantaneous communication of complex data over the internet and by the exponential increase in air travel, this latter broader category of cross-border crime is likely to become of more and more importance for law enforcement so the european example may in this context be of broader interest for international criminal justice. within eu criminal law cooperation, harmonisation of criminal procedure, as opposed to substantive offences, has proved the most controversial and resistant to ready cooperation. two examples, in particular, may illustrate this: 1. co-operation in the law of evidence and the adoption of european evidence warrant (eew) 2. the process of adoption of the european arrest warrant (eaw) procedure. the paper places the pattern of eu cooperation in criminal matters in the context of the adherence of all eu member states to the european convention on human rights11 (echr) and other council of instruments chiefly the echr of 1957;12 the european 10 article iii-270(2) states: “to the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a crossborder dimension, european framework laws may establish minimum rules. such rules shall take into account the differences between the legal traditions and systems of the member states. they shall concern: (a) mutual admissibility of evidence between member states; (b) the rights of individuals in criminal procedure; (c) the rights of victims of crime; (d) any other specific aspects of criminal procedure which the council has identified in advance by a european decision; for the adoption of such a decision, the council shall act unanimously after obtaining the consent of the european parliament. . . .” 11 ets no 005. 12 ets no 024. the denning law journal 127 convention on mutual assistance in criminal matters 195913 and assesses the normative backdrop provided by the council of europe system to eu involvement in criminal law; it is argued that council of europe norms in criminal law do not provide the depth of cooperation that could readily translate into deeper eu integration in criminal law. the most significant eu measure in criminal cooperation to date has been the eaw, which in some respects does considerably go beyond existing extradition practice as reflected in the convention of 1957; however, there have been some difficulties with its implementation. on the other hand, eu cooperation in mutual legal assistance in the law of evidence has not gone much beyond the principles already reflected in council of europe instruments, which themselves were subject to the overriding principle of state sovereignty. in the law of evidence, proposed reforms have had to be watered down to, in effect, a streamlining of mutual legal assistance procedures. council of europe in the context of civil and common law traditions common law versus civil law this divide between the common law and civil law families is the central cleavage globally in terms of legal systems and method. it of course originated in europe,14 and is one of the central issues to be dealt with in developing common inter-state approaches to criminal law and procedure, as is reflected in eu experience to date in criminal law. the general differences between the two systems of civil law and common law are well noted,15 the civil system developing from greek and particularly roman law, with an emphasis on general comprehensive codes and a corresponding lesser role for precedent; the common law system developed in england in the feudal period and is marked by the central role of case law and judicial development on an incremental, case-by-case basis of the law (with a correspondingly reduced role for statutes relative to the role of the latter in the civil law system). increasingly, it is recognised16 that there is 13 ets no 030. 14see generally, eg r van caenegem, judges, legislators and professors: chapters in european legal history (cambridge, cambridge univ. press, 1992). 15 see, eg c van den wyngaert et al (eds), criminal procedure systems in the european community (london, butterworths, 1993); m delmas-marty & j r spencer (eds), european criminal procedures (cambridge, cambridge univ. press, 2002). 16 see, eg w tetley, ‘mixed jurisdictions: common law vs civil law (codified and uncodified) (part i)’, (1993) 3 uniform law review 591 and ‘mixed jurisdictions: the council of europe as a normative backdrop to potential european integration in the sphere of criminal law 128 a greater convergence between the two systems than the common law-civil law dichotomy traditionally may have suggested – statutes are increasingly important in common law jurisdictions, especially in the context of ec law, while precedent plays a significant role in civil law systems, even if in a less formal and systematic way than in the common law. criminal law is one of the areas where the differences between the two systems are perhaps most marked. in the common law, the adversarial tradition conceives of the defence and prosecution as parties on an equal footing battling to ‘bring out’ the truth, with a judge in a relatively passive role, almost as a referee – and it is usually a jury of lay members that makes findings of fact, not the judge. the laws of evidence in the common law tradition have mostly developed as a function of the jury system – the role of lay persons as triers of fact has resulted in a perceived need to regulate the admissibility of evidence, given the lack of professional forensic experience of the members of a jury; certain, broad categories of evidence were excluded so as not to prejudice lay juries unfamiliar with the legal process. the exclusion of character evidence, save for similar fact evidence, and the primacy of the principle of oral evidence, reflected in the rule against hearsay, are central examples of the regulation of admissible evidence in the common law tradition in the context of lay juries as triers of fact. in the civil law tradition where the judge has the central truth-finding or inquisitorial role, with a relatively subordinate function for defence lawyers, lay juries are not involved and virtually all relevant evidence is admissible.17 it is also worth noting that the adversarial-inquisitorial dichotomy and the characteristics it asserts does not hold true to the same extent for all jurisdictions in the civil law tradition, and that there are significant variations between jurisdictions in the latter – in the nordic countries, for example, juries can be a feature of common law vs civil law (codified and uncodified) (part ii)’, (1999) 4 uniform law review 877; n jörg, ‘convergence of criminal justice systems: building bridges – bridging the gaps’, paper delivered at the international society for the reform of the criminal law (isrcl) 17th annual conference (the hague, isrcl, 2003). the emergence of the ad hoc international criminal tribunals and of the international criminal court further indicates the potential for common procedure between the two traditions. 17 the admissibility of relevant evidence is a starting point in the common law of evidence, but the established exceptions to this principle are so extensive that the principle is very heavily qualified – for example, concerning hearsay and documentary evidence and evidence as to character. in the republic of ireland, an additional consideration in this regard is the doctrine that evidence obtained in violation of constitutional rights is inadmissible save in extraordinary circumstances, which often is a central issue in criminal cases: see the people (director of public prosecutions) v kenny [1990] 2 ir 110. the denning law journal 129 trials (eg norway, where lay juries are required in serious cases18) and the principle of oral evidence has a greater role.19 in terms of the number of jurisdictions both within the council of europe system and within the eu, the civilian tradition is clearly dominant. only two jurisdictions are wholly in the common law tradition – ireland and the united kingdom, while two other smaller jurisdictions – cyprus and malta – have a hybrid system with both common law and civil law elements. nonetheless, the importance of the united kingdom20 both politically and as the originator of the common law system has resulted in the common law-civil law divide being of central importance in the context of criminal law cooperation within the eu. the eu and europe experience then may serve as a prototype to engaging with this issue on a more global level. the council of europe and the criminal law within this overall european picture of both unity and diversity, european criminal law brings out possibly as much the potential for diversity, as of unity, in european traditions – or at least the complexity of cooperation. as a backdrop to eu criminal cooperation, the council of europe and the echr provide an existing context of interaction of european states in the criminal sphere. the way in which decisions of the european court of human rights, including those in criminal matters, have become embedded to a degree in terms of their normative weight in legal and political debates21 might be 18 norwegian code of criminal procedure 1887 (lov om rettergangsmåten i straffesaker (straffeprossessloven)), replaced by a new updated code on 22nd may 1981 (which came into force on 1st january 1986), sec 376a. see also, for an example of an eu country in this regard, with spain’s jury law of 1995 (ley orgánica del tribunal del jurado, boe, 1995, 122, as subsequently amended) and art. 125 of the spanish constitution. 19 as regards norway, see, eg ibid at sec 296-i. 20 scotland is of course an exception within the united kingdom in that its municipal law is largely a product of the civil law tradition – in criminal law, scots law tends toward the common law system, though it is often different from the common law of england & wales in criminal matters. unlike civil/non-criminal law in scotland (see the court of session act 1988 as to the latter), there is no appeal in scots criminal cases to the house of lords, and scotland’s high court of justiciary is the highest criminal court in the jurisdiction. under the scotland act 1988, devolution issues can be appealed to the judicial committee of the privy council. 21 as evidenced, eg by the way in which the good friday agreement between the uk and irish governments on a the northern ireland peace settlement required the incorporation in the republic of ireland and northern ireland of the rights protected by the echr, as a two-way guarantee of good faith in the commitment to human rights. see section 6 of the good friday agreement: the council of europe as a normative backdrop to potential european integration in the sphere of criminal law 130 thought to provide a strong normative backdrop22 to more intense eu criminal cooperation. a good deal of the echr itself is concerned with rights in the context of criminal investigation, prosecution, and trial.23 article 3 provides for freedom from torture and degrading treatment. article 5 sets out the circumstances in which detention is lawful, addressing, inter alia, the formalities for a valid arrest, a requirement to bring a detained person promptly before a judge, and what is referred to in the common law tradition as habeus corpus (the right to challenge the lawfulness of detention before a court of law). article 6 of the echr is the most relevant to criminal procedure. it sets out a requirement that in the determination of any criminal charge, everyone is entitled to ‘a fair and public hearing within a reasonable time by an independent and impartial tribunal’. article 6(1), which applies to both civil and criminal proceedings, states: “in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. judgments shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.” the subsequent two paragraphs of article 6 relate specifically to criminal trials. article 6(2) requires a presumption of innocence until proven guilty. article 6(3) states that everyone charged with a criminal offence shall have http://www.nio.gov.uk/agreement.pdf . 22 the question of the normativity of law, in the sense of the duty to obey the law, is a contested one in legal theory, with some arguing, for example, that positivism fails to adequately account for this duty (for an overview, see, eg a marmor, ‘the nature of law’, stanford encyclopaedia of law http://plato.stanford.edu/entries/lawphil-nature/ (visited 4th january 2007). in this article, the term ‘normative’ is used loosely to convey the sense in which echr standards have become broadly accepted within europe as representing minimum safeguards and protections. 23 ets no 5 (46 ratifications).the data on ratifications in this article was obtained from the web site of the treaty office of the council of europe (visited 4th january 2006): http://conventions.coe.int/treaty/commun/listetraites.asp?cm=8&cl=eng http://plato.stanford.edu/entries/lawphil-nature/ http://conventions.coe.int/treaty/commun/listetraites.asp?cm=8&amp;cl=eng http://www.nio.gov.uk/agreement.pdf the denning law journal 131 the following minimum rights: (a) to be informed promptly in a language the suspect understands of the nature and cause of the accusation; (b) to have adequate time and facilities for the preparation of a defence; (c) to defend himself in person or through legal assistance, which is to be given free where the defendant does not have sufficient means to pay for it and if the interests of justice so requires; (d) to examine or have examined witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her; (e) to have the free assistance of an interpreter if he or she cannot understand or speak the language used in court. the court has tended to emphasise that “article 6 enunciates rights which are distinct but stem from the same basic idea and which, taken together, make up a single right not specifically defined in the narrower sense of the term”.24 although article 6 is formulated in relatively detailed terms, compared to other articles of the convention, and thus allows the european court of human rights to be more particular and specific in its rulings under this article as to the requirements it imposes on states, “the convention organs still have to steer a line between autonomy and subsidiarity”,25 reflecting the general character of the echr as setting out minimum standards.26 article 7 of the echr goes on to enshrine the principle of legality (subject to the general principles of law recognized by civilized nations). article 13 requires that everyone whose rights and freedoms as set out in the convention are violated shall have an effective remedy notwithstanding that the violation has been committed by persons acting in an official capacity.27 in addition, other council of europe conventions relate to criminal matters: the european convention on extradition of 1957;28 the european 24 golder v uk a 18 (1975), 1 ehrr 524, § 28, cited in o jacot-guillarmod, ‘rights related to good administration of justice (article 6)’, in r st j macdonald, f matscher & h petzold (eds), the european system for the protection of human rights (the hague, martinus nijhoff, 1993) p 381. see also generally, eg lg loucaides, ‘questions of fair trial under the european convention of human rights’, (2003) 3 human rights law review 27. 25 i cameron, an introduction to the european convention on human rights (uppsala, iustus förlag, 2006) p 89. 26 ibid p 74. see also, generally, h petzold, ´the convention and the principle of subsidiarity’, in macdonald et al, above n 24. 27 article 13 is somewhat limited in scope in that it can only be invoked where there has been a breach of another convention right – it does not stand on its own as an independent basis of challenge: see, generally, p van dijk & gjh van hoof et al, theory and practice of the european convention on human rights (the hague, kluwer, 3rd ed, 1998) p 696 et seq. 28 ets no 024 (47 ratifications – including israel and south africa) was the first european-wide attempt to codify common standards in extradition; its chief http://www.ingentaconnect.com/content/external-references?article=1461-7781(2003)3l.27[aid=7851735] the council of europe as a normative backdrop to potential european integration in the sphere of criminal law 132 convention on mutual assistance in criminal matters 1959;29 european convention on the supervision of conditionally sentenced or conditionally released offenders 1964;30 european convention on the punishment of road traffic offences 1964;31 european convention on the international validity of criminal judgments 1970;32 european convention on the transfer of proceedings in criminal matters 1972;33 european convention on the nonapplicability of statutory limitation to crimes against humanity and war crimes 1974;34 additional protocol to the european convention on extradition of 1975;35 european convention on the suppression of terrorism 1977;36 second additional protocol to the european convention on extradition 1978;37 additional protocol to the european convention on mutual assistance in criminal matters 1978;38 convention on the transfer of sentenced persons 1983;39 european convention on the compensation of victims of violent crimes 1983;40 protocol no 7 to the convention for the protection of human rights and fundamental freedoms 1984;41 european convention for the prevention of torture and inhuman or degrading treatment or punishment 1987;42 convention on insider trading of 198943 and additional protocol to the convention on insider trading 1989;44 innovation was the relaxation of the requirement that a requesting state establish a prima facie case for extradition. 29 ets no 030 (46 ratifications). 30 ets no 051 (19 ratifications). 31 ets no 052 (5 ratifications). 32 ets no 070 (19 ratifications). 33 ets no 072 (23 ratifications). 34 ets no 082 (3 ratifications). 35 ets no. 086 (37 ratifications – including israel), narrowing the scope of the political offence exception and specifying the scope of ne bis in idem. 36 ets no 090 (44 ratifications). 37 ets no 098 (40 ratifications – including south africa), concerning fiscal offences, in absentia trials, and amnesties. 38 ets no 099 (40 ratifications). 39 ets no 112 (61 ratifications – including australia, the bahamas, bolivia, canada, chile, costa rica, ecuador, israel, japan, korea, mauritius, mexico, montenegro, panama, tonga, trinidad and tobago, the united states, venezuela). 40 ets no 116 (21 ratifications). 41 ets 117 (39 ratifications), concerning, in relation to criminal matters, a right of appeal in criminal proceedings, compensation for wrongful conviction, and ne bis in idem in criminal trials generally. 42 ets no 126 (47 ratifications). 43 ets no. 130 (8 ratifications). 44 ets no 133 (8 ratifications). the denning law journal 133 convention on laundering 1990;45 protocols nos 1 & 2 to the european convention for the prevention of torture and inhuman or degrading treatment or punishment 1993;46 additional protocol to the convention on the transfer of sentenced persons 1997;47 convention on the protection of the environment through criminal law 1998;48 criminal law convention on corruption 1999;49 second additional protocol to the european convention on mutual assistance in criminal matters 2001;50 convention on cybercrime 2001;51 protocol no 13 to the convention for the protection of human rights and fundamental freedoms (concerning the abolition of the death penalty in all circumstances) 2002;52 additional protocol to the convention on cybercrime (concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems) 2003;53 protocol amending the european convention on the suppression of terrorism 2003;54 additional protocol to the criminal law convention on corruption 2003;55 convention on the prevention of terrorism 2005;56 convention on action against trafficking in human beings 2005;57 convention on laundering, search, seizure and confiscation of the proceeds of crime and on the financing of terrorism 2005.58 the limits of criminal law convergence in the council of europe system this impressive list of conventions in which, with varying support from contracting states of the council of europe, cooperation in the criminal sphere has been developed could be taken to indicate a geographical and political space in which a high degree of cooperation has been achieved in practice. however, most of the above conventions relate to substantive, rather then procedural criminal law – which criminal law cooperation has become the norm and in which many of the obstacles associated with inter-state criminal 45 ets no 141 (48 ratifications – including australia). 46 ets no 151 and ets no 152 respectively (46 ratifications each). 47 ets no 167 (31 ratifications). 48 ets no 172 (1 ratification – estonia). 49 ets no 173 (35 ratifications). 50 ets no 182 (12 ratifications – including israel). 51 ets no 185 (18 ratifications – including the united states). 52 ets no 187 (37 ratifications). 53 ets no 189 ((10 ratifications). 54 ets no 190 (25 ratifications). 55 ets no 191 (18 ratifications). 56 ets no 196 (3 ratifications). 57 ets no 197(3 ratifications). 58 ets no 198 (0 ratifications). the council of europe as a normative backdrop to potential european integration in the sphere of criminal law 134 cooperation have been surmounted. certainly, much progress has been made, but closer analysis also indicates the limitations of current cooperation; many of the above conventions relate to substantive criminal law, but it is in procedure that the differences between common law and civil law really exist, since broadly speaking legal systems throughout the world show substantial similarity as to the content of what the criminal law prohibits. in the limits of this paper, it is not possible to comprehensively assess the scope of all the conventions referred to above – instead, the paper focuses on some of the conventions that are most relevant with respect to procedure. taking the echr itself as a starting point in this regard, when taken in the context of the totality of criminal substantive and procedural law in any legal system, the scope of convention rights in criminal matters is for the most part very general in nature. this is discussed in more detail in what follows. the convention establishes broad and basic principles – but many criminal issues are un-addressed. perhaps the most obvious example of the latter concerns the law of evidence and of criminal procedure generally. the question of the mode of trial, for example, jury or non-jury, is not dealt with, reflecting the contrasting approaches in this area among contracting states. as to the law of evidence, the convention says relatively little in a central area of the functioning of the criminal law – and one in which there are sharp divergences of approach between civil and common law systems. for example, hearsay evidence, criminal disclosure, and the precise nature of defence rights are all more or less outside of the scope of the convention. harris, warbrick & o’boyle observe: “the right to a fair hearing in article 6(1) does not require that any particular rules of evidence are followed in national courts in either criminal or non-criminal cases; it is in principle for each state to lay down its own rules. such an approach is inevitable, given the wide variations in the rules of evidence in different european legal systems, with, for example, common law systems controlling the rules of evidence very tightly and civil law systems setting very few restrictions. however, the strasbourg authorities have set certain parameters within which states must operate and have found that the use of a particular rule of evidence in any system may cause the trial to be unfair on the facts.”59 59 d j harris, m o’boyle & c warbrick, law of the european convention on human rights (london, butterworths, 1995) p 210. the denning law journal 135 the authors go on to list three main categories in relation to which the convention contains certain requirements: illegally obtained evidence, deposition evidence (primarily evidence from a complainant witness who does not appear at trial), and access to all material evidence: (1) the latter principle identified by harris, warbrick & o’boyle access to all material evidence – is a principle in both common law and civil law systems,60 but it is heavily regulated in the common law by various exclusionary rules;61 recognition of the principle in a general abstract way in the jurisprudence of the european court of human rights says little as to differing ways of applying and qualifying the principle. (2) the second evidential principle referred to above – relating to deposition evidence – is the only specific rule of evidence explicitly addressed in the convention. article 6(3)(d) states62 that everyone charged with a criminal offence has the right to examine or have examined witnesses against him or her and to obtain the attendance of witnesses on his behalf under the same conditions as witnesses against him. (3) on the first principle identified by harris, warbrick & o’boyle concerning illegally obtained evidence, the requirements in the jurisprudence 60 on civil law systems, see, eg k zweigert & h kötz, an introduction to comparative law (trans by tony weir) (oxford, oxford univ press, 3rd ed, 1998) pp 274-275. 61 see secretary of state of the home department/lord chancellor’s office/attorney general, criminal justice white paper: justice for all (cmd 5563) (london, hmso, 2002), which proposed significant moves to relaxing the exclusionary rules of the common law. see also, eg the discussion of the white paper in b. fitzpatrick, ‘tinkering or transformation? proposals and principles in the white paper, “justice for all”’ (2002) 5 web jcli, available online at: http://webjcli.ncl.ac.uk/2002/issue5/fitzpatrick5.html . 62 for an application of article 6(3)(d), see, eg the decision of the european court of human rights in ps v germany (2003) 36 ehrr 61. the applicant was convicted of child sexual abuse, but was denied the opportunity to cross-examine the child and thereby test her credibility. the child’s mother had expressed concerns about the effect of a cross-examination on the child’s health. the court held that where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused had no opportunity to examine or cross-examine, whether during the investigation or the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by article 6(3)(d). cameron notes that the “. . . the court has been very careful as regards agent provocateurs and allowing evidence from anonymous witnesses, or from victims of crimes or witnesses not present at the trial, something which can apply particularly as regards sexual offences against children, in security cases and in organised crime cases” (above n 25 pp 100-101, footnotes omitted). see also petzold, above n 27 p 54. http://webjcli.ncl.ac.uk/2002/issue5/fitzpatrick5.html the council of europe as a normative backdrop to potential european integration in the sphere of criminal law 136 are relatively general,63 and significant variations exist between contracting states. for example, ireland applies a strict exclusionary rule for evidence obtained in breach of constitutional rights. as a consequence, for example, evidence obtained in the execution of a search warrant where the warrant is out of time is automatically inadmissible,64 whereas in the uk, the trial court has discretion as to admitting such evidence.65 the issue of delay in the criminal process can be taken as a further example of the general nature of the rights and principles set out in the echr. both articles 5(3) and 6(1) of the convention are relevant here. article 5(3) provides that everyone arrested or detained is to be brought promptly before a judge and shall be entitled to a trial within a reasonable time or release pending trial. article 6(1) provides, inter alia, that in the determination of a person’s civil rights and obligations or of any criminal charge, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established. these provisions in the echr on delay only arise where a person has been arrested or detained (article 5(3)) or where a person has been subjected to a charge (article 6(1)).66 in relation to article 6(1), the reasonable time guarantee runs from the moment that an individual is subject to a criminal charge, and not from when the alleged offences are committed (article 6(1) also applies to civil cases, in which case the reasonable time guarantee runs usually from the initiation of court proceedings). 63 the general position in the echr caselaw is that the admissibility of illegally obtained evidence is a matter for national law: see schenk v switzerland (1988) 13 ehrr 242 and teixeira de castro v portugal (1998) 28 ehrr 101 (both cited in eu network of independent experts on fundamental rights, opinion on the status of illegally obtained evidence in criminal procedures of the member states of the european union (brussels, cfr-cdf, 2003) p 6). van dijk & van hoof et al observe that “ . . . as to the admissibility according to domestic law, the strasbourg courts are guided in the first place by the opinion of the national court. however, if the latter has taken the position that it may use the evidence, though unlawfully obtained, a strasbourg review of the way in which use is made of this evidence is very urgently needed if the principle of fair trial is not to be frustrated” (van dijk & van hoof et al, above n 27 p 436). 64 save for extraordinary excusing circumstances (see kenny, above n 17). 65 police and criminal evidence act, s. 78; scott v the queen [1989] ac 1242; r v khan [1996] 3 wlr 162. 66 there is no provision of the echr that explicitly relates to the time period between the alleged commission of a criminal offence and the initiation of a prosecution. the denning law journal 137 the relatively general nature of these requirements in articles 5(3)67 and 6(1) becomes apparent in relation to the issue of investigative detention. in common law countries, pre-trial investigative detention is generally prohibited. this principle of refusal to surrender for the purpose of investigative detention. it has some support in existing extradition practice, although there does not appear to be that much authority from ireland or the uk (the two major common law jurisdictions in europe) specifically on the point. it is consistent with the principle that an accused is entitled to a speedy trial, for which there is more considerable authority. the latter principle is guaranteed in relation to criminal trials at a constitutional level in ireland68 and the united states,69 for example (and it is provided for in articles 5(3) and 6 of the european convention on human rights (echr), as referred to above). this concern with investigative detention is also reflected in the relatively short periods of detention without charge permitted by statute in ireland70 and the uk.71 it might also be argued that extended detention pending the completion of the investigative phase of a trial was a form of preventative detention, unless a fairly high threshold of evidence was to apply 67 the european court of human rights has applied a broad margin of discretion to states in applying article 5(3), reflecting the diverse procedural traditions in the area: see, eg, van dijk & van hoof et al, above n 27 p 370. 68 bunreacht na héireann (the constitution of ireland), article 38.1 (right to a trial in due course of law). the right is also recognised at common law. see, eg don knowles v judge leo malone and ors, high court, unreported, 6th april 2001, mckechnie j; pc v director of public prosecutions [1999] 2 ir 25. no absolute time periods are established or identified in caselaw and each case is largely taken on its own facts: d walsh, criminal procedure (dublin, round hall, 2002) p 23. although an accused will often have to show prejudice arising for a trial to be halted on grounds of delay, the caselaw also suggests a category of unconscionable delay as justifying the ending of proceedings, regardless of whether the delay prejudices the conduct or effectiveness of the defence. 69 the sixth amendment to the us constitution. 70 the general requirement is that a suspect must be brought before a judge and charged as soon as is practicable (criminal justice act 1951, s 15). it is now possible to detain a person for certain (again relatively short) periods without charging (see, eg criminal justice act 1984 (as amended), s 4(2), which applies in relation to offences punishable by a period of five years’ imprisonment or more as amended by the criminal justice act 2006, s 9; offences against the state act 1939, s 30). 71 the police and criminal evidence act 1984, s. 42(1) (as amended by the criminal justice act 2003, s. 7, and by the serious organised crime and police act 2005, s. 111) provides that a person arrested and detained may be held by the police for up to 36 hours without charge. the council of europe as a normative backdrop to potential european integration in the sphere of criminal law 138 to arrest in the first place pending the completion of investigation. it seems likely that preventative detention would be unconstitutional in ireland.72 on the question of investigative detention, the echr is relatively silent73 – and there is a clear difference in approach on this issue between common law and civil law states.74 generally in the context of investigative detention, both articles 5(3) and 6(1) are relevant, but primarily the latter. article 5(3) will be satisfied once a judge has become involved, but the concern with investigative detention essentially arises where a holding charge is made against a suspect (satisfying article 5(3)), but then there is delay before the trial proper implicating article 6(1). however, very long periods of pre-trial detention (from a common law point of view) have been held to be 72 see, eg john gallagher v the director of the central mental hospital (no 2) [1996] 3 ir 10, at 18-19, 34 (in the context of detention of a person with a psychiatric illness). however, it is worth noting that the previous position in irish law whereby bail could not be refused on the ground that an accused was likely to offend was the subject of a constitutional amendment, which permits this as a ground for refusing bail (16th amendment to the constitution, inserting article 40.4.6°). recital 12 of the framework decision provides, inter alia, that the framework decision does not prevent a member state from applying its constitutional rules relating to due process. this provision reflects the position in irish law, whereby the state is prohibited from extraditing a suspect where the treatment of the suspect in the requesting state would amount to a denial of or an infringement of constitutional rights or fair procedures in irish law. finucane v mcmahon [1990] 1 ir 165. 73 the circumstances in which preventive detention are permitted under the echr are set out in article 5(1)(e) -(f): “everyone has the right to liberty and security of person. no one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: . . . (e.) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f.) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” in the context of prison sentences, the european court of human rights has tended to hold that in cases of indefinite detention imposed on young offenders, it may be permissible to determine the latter stages of the sentence with reference to the risk posed by the offender, but in this instance the court requires judicial oversight to ensure adequate criteria for release are developed by national authorities: see s livingstone, ‘prisoners’ rights in the context of the european convention on human rights’, (2000) 2 punishment & society 309 at 320. 74 in relation to the uk, see the extradition act 2003, s 2(3). in the house of lord, lord filkin, parliamentary under-secretary of state for the home office, noted regarding s 2(3) of the uk bill that: “… the bill, for the first time, makes it clear that extradition to another eu country will be possible only for the purpose of putting a person on trial” (lords hansard, 1st may 2003, col 854). the denning law journal 139 compatible with this provision. for example, in w v switzerland,75 where the time lag between charging and the trial was four years, no violation of the convention was found by the european court of human rights.76 a further aspect to the degree of normative convergence in europe apparent from the echr is the doctrine of margin of appreciation employed in the strasbourg caselaw.77 this concept essentially entails that the european 75 a 254-a (1993). 76 in w v switzerland, echr (1993) series a, no 254. the commission by 19 votes to 1 was of the opinion that article 5(3) had been violated; a chamber of the court, by 5 votes to 4, disagreed, holding that the total pre-trial detention of 4 years and 3 days was justified in the circumstances of the case. the case involved a range of economic offences. the court noted that “. . . [the echr] caselaw in fact states that the reasonable time cannot be assessed in abstracto . . . the reasonableness of an accused person’s detention must be assessed in each case according to its special features . . . continuing detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty” (para 29). the court upheld the three main grounds on which the swiss authorities justified the pre-trial detention, which were, in addition to the serious suspicion against him: the danger of absconding, the risk of collusion, and the need to prevent the accused committing further offences. judge pettiti entered a strongly worded dissent, noting he would rather that the case had been decided by a grand camber of the court. his dissenting judgment also contained some research on the general picture on pre-trial detention in europe. in france, he noted, pre-trial detention varied with the type of crime, the most lengthy period he cited being eight months – he noted also that excessive pre-trial detention was often deplored by parliament in france. in other european states, he observed, the maximum length of pre-trial detention permitted varied from about six months to two years. among his other comments was that “to justify four years of pre-trial detention is to step backwards in the history of criminal law, to regress to the ‘prehistoric’ era of the lombroso [the 19th-century italian doctor and criminologist who conceived of criminality as inherited] school of thought”. 77 one academic commentator observed: “the margin of appreciation may be the single most distinctive interpretative feature of echr jurisprudence: it has defined not only the interpretative methodology of strasbourg jurisprudence but also the substantive import of convention rights. it remains pivotal to the operation of a critical symbiosis between national upholding of the convention and the supervision of the echr mechanism: it lies at the heart of the ineluctable and perennial mediation of consensus and relativity, supremacy and national autonomy as well as uniformity and diversity” (s mcinerney, ‘review of yourow, howard charles. the margin of appreciation doctrine in the dynamics of the european court of human rights jurisprudence (martinus nijhoff publishers, kluwer press 1996)’, (1998) 9(4) european journal of international law 777 at 777. see also generally petzold, above n 26. the council of europe as a normative backdrop to potential european integration in the sphere of criminal law 140 court of human rights in strasbourg pays respect to the national context and the particular understanding of it possessed by national courts. shany has recently identified two aspects to the doctrine: judicial deference meaning respect for national discretion and evaluation; and normative flexibility meaning international norms incorporating the concept are open-ended and unsettled and provide a limited conduct guidance that preserve a significant ‘zone of legality’ within which states are free to operate.78 the doctrine does not seem to have been explicitly invoked much in the context of articles 5 or 6, for example;79 the degree of latitude these permit to contracting states seems to stem from the general wording of the provisions, rather than primarily the interpretative rule of margin of appreciation. in summary, the content of the echr in terms of criminal procedure is rather general and as such limited. substantial parts of procedure – such as the law of evidence and delay in the context of investigative detention – are largely outside of the scope of the convention. it seems almost unnecessary to invoke the doctrine of the margin of appreciation in this context, since the concept or principle is inherent in the scope of the convention as to criminal procedure.80 the existing council of europe framework in the area of mutual legal assistance in criminal matters council of europe convention of 1959 the council of europe’s 1959 convention on mutual assistance in criminal matters was the first european-wide measure of mutual assistance.81 the convention applies to all judicial proceedings, but does not regulate police-to-police cooperation at the investigative stage (regulation of the latter, 78 see generally y shany, ‘toward a general margin of appreciation doctrine in international law?’, (2006) 16(5) european journal of international law 907 at 910911. shany suggests the two are analytically severable – the first relating to normapplication and the second to norm-interpretation. this application-intrepretation distinction may not be fully sustainable, in that a norm arguably cannot be applied without being interpreted – at least if the term interpretation is given a broad meaning to convey the task of attributing any meaning to a term or legal provision (including if the meaning is clear or obvious). 79 see, eg van dijk & van hoof et al, above n 27 p 86. 80 although article 6 does contain a number of specific provisions (as noted above n 25). 81 see generally, eg c nicholls qc, c montgomery qc & j b knowles, the law of extradition and mutual assistance (london, cameron may, 2002). http://www.ingentaconnect.com/content/external-references?article=0938-5428(2006)16:5l.907[aid=7851738] the denning law journal 141 in so far as it exists, as opposed to simply being a matter of practice, comes under the aegis of europol, interpol and the sis, for example). the basic provision of the convention is broadly framed and states that state parties commit to affording each other “the widest measure of mutual legal assistance in proceedings in respect of offences the punishment of which, at the time of the request for assistance, fall within the jurisdiction of the judicial authorities of the requesting party”.82 the primary instrument provided for is a rogatory letter,83 which is simply the term for a formal request for assistance. a basic principle of the convention is that the requested party is permitted to execute letters rogatory in a manner provided for in its domestic law84 – not the law of the requesting state, reflecting the traditional westphalian principle of the paramountcy of individual state sovereignty in public international law. however, article 3 of the convention further provides that a request in relation to obtaining witness or expert evidence should be acceded to where the law of the requested state does not prohibit it. this appears to represent a good faith clause that the requested state should cooperate to the maximum, rather than minimum, extent possible under its own law.85 perhaps the most obvious context in which this principle as to the priority of the law of the requested state arises is the admissibility of evidence – because of the sharp differences between common law and civil law traditions in this area. there are particularly significant differences across states in this area of law. as the irish director of public prosecutions, for example, has noted, the central problem for a common law jurisdiction seeking to establish an effective means of obtaining evidence from abroad is how to do so while respecting this principle.86 overall in its scope, therefore, the 1959 convention does not significantly impinge on state sovereignty. european union developments the principal eu development in this field has been the adoption of the european evidence warrant (eew). the main change arguably that the eew effects is the standardisation of procedures in the area throughout the eu and 82 article 1. 83 articles 3-6. 84 article 5(1)(c). 85 j hamilton, 'mutual assistance in criminal matters in ireland and the proposed european evidence warrant', (2005) era forum – special issue on european evidence 53 at 59. 86 ibid. both ireland and the uk implemented the convention in domestic law in the early 1990s. ireland did so in part vii of the criminal justice act 1994, the uk did so a few years previously in the criminal justice (international cooperation) act 1990. the council of europe as a normative backdrop to potential european integration in the sphere of criminal law 142 tighter deadlines – the eew as currently proposed would not appear to entail any fundamental departure from current mutual legal assistance principles. probably the most significant aspect of the new measure that is investigative in nature is that it envisages search and seizure; this is, however, to be carried out according to normal rules of the requested/executing member state,87 and a series of grounds for non-recognition/non-execution are provided for.88 the eew as proposed would cover a relatively limited spectrum of evidence; it will only relate to evidence in being – it excludes requests to take further evidence, such as witness statements; obtaining evidence in real time, such as interception of communications and monitoring of bank accounts; as well as the taking of evidence from the body of a person, including dna evidence (article 3(1) however, existing evidence within these categories for example, existing dna evidence does not appear to be excluded (article 3(2)).89 one of the principal differences effected by the eew proposal from existing practice would be for a relaxation of the double criminality rule, applicable under the 1959 council of europe convention in respect of search and seizure powers90 had previously lessened the scope of double criminality. an existing framework decision91 on freezing orders and the non-destruction of evidence, also addresses the issue of transmission of evidence ordered to be frozen and this measure already relaxes, for the purposes of the transfer of evidence, the double criminality requirement for a range of offences (article 10 of this framework decision) (so the relaxation of double criminality is a significant step that had already been taken prior to the eew).92 it is provided that the condition of double criminality for offences not specified in the eew shall be further examined by the council five years after the entry into force of the framework decision.93 arguably, the dis-application of double criminality is not all that significant, since in terms of their substantive 87 article 11 of european evidence warrant, brussels 10th july 2006, 11235/06copen 74. the preamble of this instrument states that “the council adopted at its meeting on 1-2 june 2006 a general approach on the proposal for a framework decision on the eew, with the exception of the form to be annexed to the instrument and recitals other than those recitals agreed specifically as a part of the general approach.” 88 article 15. 89 hamilton, above n 85 at 64. 90 article 51 of the schengen convention 1990, (1991) 30 ilm 184. 91 council framework decision on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime, oj l 181/2 5 7 2000. 92 hamilton, above n 85 at 65. 93 article 16 (4). the denning law journal 143 content, legal systems in the eu are broadly similar as to criminal law prohibitions. moreover, double criminality can be applied strictly or broadly – in abtsracto (relating to the legal definition of offences – which is strict, since it requires equivalent legal definition, and not just criminalisation) or in concreto (relating to the factual definition, ie that the same acts be criminalised, whatever the legal definition in the respective systems – which is thus looser). the fact that double criminality is abolished in relation to specific offences actually retains the broad principle of correspondence – arguably the effect of this is just to exclude a strict in abstracto application of double criminality. it will not be necessary for a prior freezing order to have been issued, which would quicken up and streamline procedures. it would seem to follow from the fact that the eew relates, to a large extent, to evidence already in being means that in many cases an issue as to compliance with domestic law may not arise, as presumably domestic law will already have been complied with in the acquisition of the evidence. the proposal provides that an eew should be issued only when the issuing authority is satisfied that it would be possible to obtain objects, documents or data in similar circumstances if they were on the territory of the issuing state, even though different procedural measures may be used;94 further, the obligation on the executing state is likewise to execute the warrant “in the same way as the objects, documents or data would be obtained by an authority of the executing state.”95 the eew proposal appears to leave some room for member states in regard to the requirements of their domestic law by providing that an issuing state may require the executing state to comply “with other specific formalities and procedures expressly indicated by the issuing authority, unless such formalities and procedures are contrary to the fundamental principles of law in the executing state”.96 the precise implications of this may be unclear in some respects – for example, if there is a breach of procedure by the executing state (ie a breach of its own laws),97 which member state (the issuing or executing) would be thus liable. however, it is clear that the general principle of existing mutual legal assistance law that the laws of the executing state will apply to any request for obtaining evidence – is retained in the eew proposal, and that its chief effect would be to streamline and standardise to a greater extent procedures across the union. even in the eu, developments in mutual legal assistance therefore have been rather modest 94 article 6(b). 95 article 11. 96 article 13(e). 97 article 6 states that the conditions in it shall be assessed only in the issuing state in each case, but this seems to relate to the execution of an eew, rather than to any subsequent judicial challenge. the council of europe as a normative backdrop to potential european integration in the sphere of criminal law 144 and have not gone much beyond the council of europe instruments, which are themselves premised on the traditional principle national sovereignty and adherence to the law of the requested state. in terms of the general significance of this in the scheme of eu criminal cooperation, it is important to note the background and context of its adoption, which was the commission green paper on the protection through the criminal law of the financial interests of the communities and the establishment of a european prosecutor.98 this green paper contained a farreaching proposal, that evidence admissible in one member state should automatically be admissible in another member state, in relation to those matters – crimes relating to the financial interests of the community – over which the envisaged european public prosecutor (epp) was proposed to have jurisdiction.99 the epp would have, as proposed in the green paper, competence to initiate and direct prosecutions in national courts100 (so, under the proposal, there would not be a european court with a special jurisdiction). this would clearly represent a seismic shift in approach for common law jurisdictions, where virtually all the usual rules of admissibility of evidence would be relaxed in relation to this category of evidence. this proposal was first made in 2001, and the degree of criticism it attracted 101 appears to be reflected in the more modest scope of the eew, which does not address the general issue of mutual admissibility at all.102 98 commission green paper on the criminal law protection of the financial interests of the communities and a european prosecutor (com (2001) 715 final, brussels, 11 12 2001). 99 ibid, at 6 3 4, dubbed ‘free movement of evidence’ by some commentators: a biehler, dr s gleß, n parra, dr h e zeitler, analysis of the green paper on criminal-law protection of the financial interests of the community and the establishment of a european prosecutor (freiburg/br, max planck institute of foreign and international criminal law, april 2002) pp 33-45, available on the internet at: http://europa.eu.int/comm/anti_fraud/green_paper/contributions/pdf/gp_mplanck_de_ en.pdf (visited 4th january 2007). 100 above n 93 at 3 2 1. 101 see, eg j fish/president of the council of bars and law societies of europe (ccbe), european commission public hearing on the green paper on the establishment of a european public prosecutor for the criminallaw protection of the community’s financial interests, (brussels, ccbe, 16/17 september 2002): http://www.ccbe.org/doc/en/d_16_170902_en.pdf (visited 4th january 2007). 102 see c williams, ‘the european evidence warrant: the proposal of the european commission’, (2005) era forum – special issue on european evidence 17 at 25. http://europa.eu.int/comm/anti_fraud/green_paper/contributions/pdf/gp_mplanck_de_en.pdf http://europa.eu.int/comm/anti_fraud/green_paper/contributions/pdf/gp_mplanck_de_en.pdf http://www.ccbe.org/doc/en/d_16_170902_en.pdf the denning law journal 145 the council of europe and extradition the council of europe convention of 1957 and subsequent instruments on extradition the 1957 council of europe convention on extradition103 was the first multilateral treaty at european level to deal with extradition. it places parties to the convention under an obligation to extradite in respect of relevant offences, but qualifies this obligation by: a requirement of double criminality;104 a political offence exception;105 a discrimination exception where extradition is sought for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that that person's position may be prejudiced for any of these reasons;106 the nonreturn of fugitives for purely military or fiscal offences;107 a rule of speciality;108 and restrictions in circumstances where the death penalty may be imposed by the requesting state.109 specific aspects of extradition have been dealt with in subsequent protocols.110 probably the most significant innovation was the relaxation of a requirement for the requesting state to establish a prima facie case against the suspect in relation to the offences for which extradition was sought. numerous states entered reservations when ratifying the convention.111 in general, as with the echr, the 1957 convention represents minimum common standards rather than innovation. this was reflected, for example, in caselaw developments from the european court of human rights in particular, soering112 – where the court suggested that the likelihood of violations of an extradited person’s human rights by the requesting state could 103 ets no 024, above n 28. 104 article 2. 105 article 3. 106 article 3. 107 articles 4-5. 108 article 14. 109 article 11. 110 additional protocol to the european convention on extradition 1975 ets no. 086, above n 35, narrowing the scope of the political offence exception and specifying the scope of ne bis in idem and second additional protocol to the european convention on extradition 1978 ets no 098, above n 37, concerning fiscal offences, in absentia trials, and amnesties. 111 c gane & m mackarel (eds)/international bar association, human rights and the administration of justice (1997, kluwer, 1997) p 621, citing mc bassiouni, european inter-state cooperation in criminal matters (the hague, martinus nijhoff, 1987) pp 41-62. 112 soering v united kingdom (1989) ser a vol 161, 11 ehrr 439.b. the council of europe as a normative backdrop to potential european integration in the sphere of criminal law 146 be a ground for refusal of extradition, which goes beyond what the 1957 convention makes explicit. recent eu development – european arrest warrant the framework decision on a european arrest warrant (eaw)113 by the eu is one of the most significant eu initiatives to date in criminal matters. the immediate context of its enactment was the atrocities in the us of september 11 2001 – a factor that appears to have significantly speeded its adoption through the eu legislative process. the main aim of the framework decision was to speed up and facilitate the extradition or surrender of suspects between eu member states. in addition to establishing common standards in a sphere that was to date largely reserved for more conventional multilateral cooperation, the framework decision involved a number of departures from the traditional principles governing extradition. one of the most significant of these is the relaxation of double criminality, which requires that the offence for which a suspect is sought to be extradited be a criminal offence in both the requesting and the requested state.114 however, as noted above in relation to the eew – the abolition of double criminality in respect to specific offences only arguably retains a broad principle of correspondence, since in order to be excepted the crimes would have to come within the list. other novel aspects are provisions concerning the optional abolition of the rule of speciality; the assignment of most functions of national authorities to judicial personages, rather than the executive; and the non-application of the political offence 113 see, generally, eg v mitsilegas, ‘the constitutional implications of mutual recognition in criminal matters in the eu’, (2006) 43 common market law review 1277; g conway, ‘judicial interpretation and the third pillar ireland’s acceptance of the european arrest warrant and the gözütok and brügge case’, (2005) 13(2) european journal of crime, criminal law and criminal justice 255; j wouters & f naert, ‘of arrest warrants, terrorist offences and extradition deals: an appraisal of the eu’s main criminal law measures against terrorism after “september 11”’, (2004) 41 common market law review 909; s allegre & m leaf, ‘mutual recognition in european judicial cooperation: a step too far too soon? case study – the european arrest warrant’, (2004) european law journal 200; m. plachta, .european arrest warrant: revolution in extradition?’, (2003) 11 european journal of crime, criminal law and criminal justice 178. 114 the concern has been expressed, for example, that the extra-territorial scope of the eaw combined with the absence of a double criminality rule for a range of offences could have the effect of rendering a person subject to criminal sanction for actions not criminalized in the state where they occur. see lord filkin, parliamentary undersecretary of state for the home office, in the house of lords – lords hansard, 1st may 2003, col 855 (referring to the uk extradition bill 2003, ss 64(2) & 65(2), the uk implementing measure); irish european arrest warrant act 2003, s 32. http://www.ingentaconnect.com/content/external-references?article=1351-5993(2004)0l.200[aid=7851741] http://www.ingentaconnect.com/content/external-references?article=0928-9569(2005)13:2l.255[aid=7851740] http://www.ingentaconnect.com/content/external-references?article=0928-9569(2005)13:2l.255[aid=7851740] http://www.ingentaconnect.com/content/external-references?article=0928-9569(2003)11l.178[aid=6349524] http://www.ingentaconnect.com/content/external-references?article=0928-9569(2003)11l.178[aid=6349524] the denning law journal 147 exception to extradition. for civil law jurisdictions, a further very significant element of the new measure is that it requires the surrender of nationals. the willingness of civil law countries to depart from this principle perhaps runs counter to the general thrust of this article – it is a good example of how far the eu can go and has gone in reconciling diverse criminal law traditions. however, it was on this ground that the implementing legislation of germany115 and poland,116 for example, was declared unconstitutional by their respective constitutional courts. further, for example, ireland and the uk in their implementing legislation sought to restrict the application of the eaw procedure for pre-trial investigative detention.117 nonetheless, overall, the eaw is more far-reaching than the eew and represents the high point of cooperation to date (in contrast, the main innovation of the council of europe treaty on extradition of 1957, as mentioned above apart from the fact of codifying existing law was the relaxation of the requirement for the requesting state to show prima facie evidence of the committal of offences(s) for which extradition was sought); however, if the thrust of the argument in this article is valid, that is perhaps not saying too much. conclusion on the basis of an assessment of the three council of europe instruments of most relevance to the criminal law and, in particular, criminal procedure, notwithstanding the implicit acceptance of the need for and desirability of european inter-state cooperation, the instruments adopted for the most part allow contracting states to retain their own traditions of criminal law and 115bundesverfassungsgericht, judgment of 18th july 2005 2 b v r 2236 /04. the german federal constitutional court (bundesverfassungsgericht) held that germany’s implementing legislation for the framework decision on an eaw encroached upon the freedom from extradition (article 16.2 of the basic law (grundgesetz)), in a disproportionate manner because the legislature had not exhausted the margins afforded to it by the framework decision on the european arrest warrant in such a way that the implementation of the framework decision for incorporation into national law showed the highest possible consideration in respect of the fundamental right concerned and infringed the guarantee of recourse to a court (article 19.4 of the basic law) because there was no possibility of challenging the judicial decision that granted extradition 116 polish constitutional tribunal, judgment of 27th of april 2005 concerning polish law implementing the european arrest warrant. the tribunal held that poland’s implementing legislation violated article 55(1) of the polish constitution, which states that “the extradition of a polish citizen shall be forbidden”. see k kowalikbañczyk, ‘should we polish it up? the polish constitutional tribunal and the idea of supremacy of eu law’, (oct 2005) 6(10) german law journal. 117 see conway, above n 97. the council of europe as a normative backdrop to potential european integration in the sphere of criminal law 148 procedure. in that context, it is easier to understand the, in general, relative caution and slowness of cooperation in criminal matters at eu level (although the eaw is a significant innovation in several respects), notwithstanding the more general acceptance of and engagement with the ideal of cooperation in matters of mutual concern more generally that the eu obviously represents. the relative speed of adoption and innovation of the eaw seems to be explained to a significant extent by the context of post-september 11, when the need for greater inter-state cooperation in combating the threat of international terrorism was most keenly felt. perhaps it is only such pressures, from the real threats posed by organised and transnational crime and terrorism, that will overcome national adherence to criminal law traditions. for the purposes of right to self-determination, how does one define people in context of kashmir 129 the denning law journal 2013 vol 25 pp 129 158 the public law dimension of public authority liability tom cornford  abstract in 2008, the law commission published a consultation paper on administrative redress. the paper was informed by the basic assumption that the problem of administrative liability in english law can only be understood by examining both its tortious and its public law dimensions and that a satisfactory solution would involve a form of liability that straddled the public/private divide. in this article i endorse the law commission‟s assumption. i advance a rationale for a form of liability that involves reparation for harms resulting from acts unlawful as a matter of public law and argue that the form of liability that the rationale supports would inevitably impinge upon the territory currently occupied by the law of tort. i then proceed to criticise the views of scholars who have recently argued that a satisfactory law of public authority liability can be arrived at by the use of the concepts of orthodox tort law alone. 1. introduction in 2008, the law commission published a consultation paper entitled administrative redress: public bodies and the citizen. 1 the paper considered, amongst other things, the issue of when a monetary remedy should be awarded to citizens who suffer harm as a result of unlawful administrative action (i.e. who are the victims of “public law wrongs” as i shall call them) and it canvassed the familiar failings in this respect of current law. it pointed out the absence of a remedy in a number of situations which appear to call for one. it mentioned, for example, the case of the taxi driver deprived of a license during the period of challenge to a wrongful decision to remove it, 2 the farmer prevented from marketing his cattle by an erroneously  dr tom cornford, ma cantab, llm london, barrister, senior lecturer essex university school of law. 1 consultation paper no.187, available on the law commission's website at <http://lawcommission.justice.gov.uk/docs/cp187_administrative_redress_consultat ion.pdf> accessed 6 may 2013. 2 r v knowsley borough council ex parte maguire [1992] cod 499. the public law dimension of public authority liability 130 made movement restriction order, 3 and the person who loses his job when he is mistakenly placed on a child abuse register. 4 it also drew attention to the pervasive uncertainty and instability of the law of tort, and in particular the law of negligence, in so far as it relates to public authorities. the commission‟s proposed solution was, in essence, a single form of liability that straddled the boundaries of public law and the law of tort. the proposal was welcomed by some 5 and subject to a great deal of criticism from others 6 but it was, in any case, strongly opposed by the government and consequently abandoned. at the same time, during roughly the period of gestation of the law commission‟s project, the courts became increasingly conservative. the prospects of success for a claimant seeking compensation from public authorities for misuse of their powers diminished. 7 we are thus left with a situation in which the deficiencies identified by the law commission remain but in which there is little immediate prospect of the courts or the government doing anything about it. the status quo – or aspects of it – has its defenders. amongst recent writers, there are those who on the one hand, accept that there exists in the law as a whole deficiencies of the sort identified by the law commission but who, on the other, insist that the private law of tort must continue as before, unruffled by the problems that afflict public law. in this article i wish to consider the recently expressed views of two respected scholars who take this view, donal nolan and roderick bagshaw. in recent writing on the law of negligence, the first defends the position currently taken by the courts and suggests that any lacuna in the system for holding public authorities to account must remain the province of public law while the second suggests an incremental extension of the duty of care to cover one type of case in which citizens are harmed by unlawful administrative action while appearing to accept that the court‟s general position with regard to the liability of public authorities should remain the same. the view i shall take here is that the law commission was right in its basic contention and the supporters of the status quo wrong: one cannot arrive at a defensible view as to how the law of tort should apply to public bodies 3 r (banks) v secretary of state for health [2004] ewhc 416 (admin), [2004] npc 43. 4 r v norfolk county council social services department ex parte m [1989] qb 619. 5 see eg k oliphant, tort and insurance law yearbook: european tort law 2008 (esretl 2008) 219. 6 see law commission analysis of consultation responses at <http://lawcommission.justice.gov.uk/docs/lc322_administrative_redress_responses. pdf> accessed 6 may 2013. 7 the most obvious manifestation of this is the gorringe case discussed further below. the denning law journal 131 without attending to the public law as well as to the tortious dimensions of the problem and any attempt to do so will lead to unsatisfactory results. the focus of the commentators whose arguments i shall consider is on negligence and, as a consequence, most of my criticisms of those arguments will also concern negligence. but if the commentators are right to think that the correct approach to the negligence liability of public authorities can be determined without considering the position of public authorities in public law then it must, by the same token, be possible to disregard the position of public authorities in public law in determining the correct approach to their liability in tort law as a whole. the conclusions i draw will thus concern tort law generally and not just the law of negligence. the plan of the article is as follows. in part 2, i shall briefly set out what i consider to be the strongest argument for the creation of a form of liability specifically concerned with public law wrongs. it will be seen that the form of liability it supports would inevitably impinge upon the existing law of tort. in part 3, i shall examine the arguments of nolan and in part 4 those of bagshaw. the argument i make in part 2 may be subject to myriad objections and in the course of this single article i cannot hope to rebut these or to convince sceptics that the form of liability it supports is the right one. nor will pointing out the flaws in nolan and bagshaw‟s position show conclusively that my belief in the inescapable salience of the public law dimension is correct. but i will, i hope, have done enough to show that the case for a form of tort liability with an explicitly public law dimension cannot be dismissed without a detailed answer from those opposed to it. 2. the case for a unitary administrative liability the following argument presents, i suggest, the strongest reason for developing the law so as to provide reparation for public law wrongs. it also expresses the underlying normative impulse that has led many to view the present failure of the law to provide such reparation as unfair. 8 i present the argument in numbered steps. 1. although separate (but overlapping) bodies of law apply to public bodies and private persons, there are certain basic moral and legal principles that apply to both. 8 cf the argument made in t cornford, towards a public law of tort (ashgate 2008). the public law dimension of public authority liability 132 2. one such principle is what might be called a principle of corrective justice, namely that those who are responsible for the wrongful losses of others have a duty to repair them. 3. it follows that where a citizen suffers loss as a result of a public law wrong committed by a public body with respect to that citizen, the public body is under a duty to repair the loss. 4. step 3 is open to the obvious objection that public law wrongs are wrongs to society as a whole rather than to individuals and that it cannot therefore be right to award compensation to citizens who happen to suffer loss as a result of them. the answer is that, properly understood, the norms of public law perform a dual function. on the one hand, they ensure that public bodies act with fidelity to the public purposes for which their powers are granted. on the other hand, they ensure that public bodies act with fairness towards individuals and infringe their private interests no more than can be justified by reference to the lawful public aims that they seek to attain. breach of those public law norms intended to protect individuals may result in loss to the individuals concerned and it is in these circumstances that the award of compensation is appropriate. on this basis, we may also say that public bodies owe duties to those affected by their actions to treat them in accordance with the norms of public law and that, correspondingly, those affected possess entitlements to be so treated. the argument may be made clearer by a pair of examples. imagine, firstly, that a public body has the power to award and to revoke licences that are necessary if a company is to market a drug. suppose further that the body purports to revoke a company‟s licence on a particular ground when on a correct reading of the law it does not have the power to do so and that as a result the company suffers loss. the norm here breached is the rule requiring the public body to direct itself correctly as to its powers. it protects the public interest in having the body act lawfully. but it also ensures that, as long as no lawful ground for removing the licence exists, the company‟s interest in retaining it is protected. the public body owes the company a duty to behave in accordance with the norm and the company has a corresponding entitlement that the body so behave. where the body breaches the norm causing loss to the company, the principle of corrective justice dictates that the proper remedy is monetary compensation. imagine, secondly, that a housing authority has a duty to provide citizens with accommodation if they are homeless and in priority need. suppose that the authority unreasonably refuses to provide an applicant with the denning law journal 133 accommodation and that there is a significant period before the rectification of the decision during which the applicant is homeless. the authority owes the applicant a duty to deal with her application reasonably and the applicant has a corresponding entitlement that the authority do so. where the authority breaches the norm causing harm to the applicant in the form of homelessness, the principle of corrective justice demands that the authority repair the loss by paying compensation. an objection sometimes made to the idea of liability based on public law unlawfulness is that the impugned decision cannot be said to cause harm to the claimant because it can be taken again lawfully with the same result. in the two examples previously given, however, the unlawfulness is of the sort that enables the court to say that the authority has reached substantively the wrong outcome. such substantive unlawfulness is unusual outside the field of human rights law but even where there are no grounds for saying that a lawful decision-making process will produce a different outcome from the unlawful decision-making process that preceded it, breach of procedural norms may have produced harm to the persons affected. so for example, delay in the making of a decision may cause loss of economic opportunities while the refusal to allow affected persons to participate in the making of a decision and the failure to give reasons may cause anxiety and distress to the persons affected. it is arguable that these kinds of harms should also be the subject of compensation. the numbered steps above may be presented in a different order. doing so brings out a different facet of the argument. 1. public authorities owe duties to the citizens affected by their actions to treat them in accordance with the norms of public law. 2. breach of such duties calls for a remedy. at present public law provides a remedy in most circumstances in which its norms are breached: a citizen can have an unlawful act which affects her quashed, in some cases she can prevent such an act before it occurs and she may also be able to compel an authority to perform some act affecting her interests which it is obliged to perform. but where somebody suffers a loss as a result of unlawful administrative action, public law provides no remedy. 3. in accordance with the principle of corrective justice (as defined in step 2 of the first version of the argument described above), the natural solution is that where a public authority causes harm to a citizen by breaching the duty it owes to that citizen to treat her in accordance with a norm of public law, it must repair the harm. the public law dimension of public authority liability 134 putting the argument in this way brings out a significant feature of current english public law, namely that it involves a form of unequal treatment. the victim of unlawful administrative action who applies for a remedy before the action causes loss is able to obtain one, whereas the victim of such action who, through no fault of her own, is not able to apply for a remedy before it causes loss is left with none. the foregoing gives a rough idea of the grounds that might be advanced for developing a form of liability for harm-causing acts that are unlawful as a matter of public law. to gain a slightly fuller picture of a how a form of liability like that justified by the argument might work, a little more needs to be said about the picture of public law it assumes and the implications of this picture. i present the account, again, in the form of a series of numbered steps. 1. every public authority exists for some purpose or set of purposes. in other words, every public authority has some overarching duty or mission. typically, assigning such an overarching duty is a matter of statutory interpretation. 2. a public authority is obliged at all times to act in pursuit of its overarching duty or mission. it has no private purposes. 3. a public authority must also exercise its powers in accordance with the norms of public law. the norms in question are those familiar to us from judicial review. what duties a public authority is subject to in any given situation is a question to be determined by reference to the relevant statute as interpreted in the light of the norms of public law. 9 4. with these propositions in mind, we can address the question of how a public authority can be said to owe duties to individuals in particular situations. not every public authority owes duties to individuals and public authorities that do owe duties to individuals will often perform acts that do not involve them in any such duty. in general terms, a public authority will owe a duty to an individual where a reasonable authority would have that individual in contemplation as likely to suffer harm to some protected interest as a result of its actions. to be slightly more specific, there are two main types of circumstance in which such a duty might arise. firstly, it may be part of the authority‟s mission to assist individuals in some way. this is obviously so, for example, in the case of many welfare functions such as those concerned with the provision of 9 i leave aside here the question of public authorities, such as the crown or the police, the source of whose powers is not statutory. the denning law journal 135 housing, education or nursing care. in such cases, where, as in the homelessness example above, a person applies to the authority for a benefit, there is little difficulty in discerning a relationship between authority and applicant and any reasonable authority would have in contemplation the applicant and the likely effect of its decision on the applicant‟s interests. on this basis, we can say that the authority owes the applicant a duty to decide her case in accordance with the norms of public law. this does not entail that the authority is obliged to make the decision in the applicant‟s favour and deliver the requested benefit. but there might be a situation, as postulated in the example above, in which it was unreasonable for the authority to do otherwise and if it did do otherwise we would be able to say that the authority had breached its duty to the applicant and thereby caused loss. the authority might also breach one of the norms of procedural propriety and thereby cause harms such as anxiety or distress. we may also say of an authority whose mission it is to deliver a certain sort of benefit to individuals that it ought to have in contemplation a particular individual even though the individual in question has not applied for it. this might be the case for example where an authority whose mission is child protection receives reliable information that a particular child is in danger of harm. as a reasonable authority, it ought to act on this information, and this puts it in a relationship with the child in question: it owes the child a duty to deal with her case in accordance with the norms of public law. 5. it goes without saying, of course, that the overarching duty of many public authorities is not to assist individuals. some indeed, can only be plausibly regarded as serving very general public interests. this would be true, for example, of an agency that protected some feature of the environment or of the bank of england in its role as the setter of interest rates. but often an authority can only attain its assigned ends by determining or interfering with the rights of individuals and here again it is natural to speak of there being a relationship between the authority in question and the individual affected by its actions. this is the second type of circumstance in which a duty to an individual may arise, the hypothetical case above of the licensing authority being an example. its public mission is to serve the public interest in the availability of safe drugs. but in fulfilling this mission it must determine whether private persons have the right to market the drugs. the authority owes such persons a duty to decide their cases in accordance with the norms of public law. the public law dimension of public authority liability 136 not every harm caused by the breach of a public law duty owed to an individual by an authority is of the sort that could properly be the subject of compensation. citizens should not expect to be compensated because they are mildly exasperated by some instance of procedural propriety. nor should they expect to be compensated for the absence of some benefit that would have accrued to them as a result of a favourable decision of a public authority if the benefit was not one that it was part of the mission of the authority to confer. 10 three broad types of harm would be proper subjects for compensation: firstly, interests in receiving the benefits which it was the purpose of a particular public function to provide, the corresponding harm being the absence of or failure to receive the benefit; secondly, interests generally recognized in positive law as a whole such as those in person and property, the harm consisting in the infringement of these; and thirdly, the interests referred to above that might be harmed by the failure to observe procedural propriety in making decisions relating to holders of either of the first two types of interest. as described so far, the form of liability contemplated would arise only in cases that might also be the subject of judicial review. but this would be to underestimate the reach of public law. we tend to think of public law as only concerned with cases in which public authorities make formal determinations of the kind that are usually the focus of judicial review. by the same token we tend to think of acts done in the course of practical activities carried out by public authorities through their employees – such as the fighting of a fire by the fire brigade, or the cleaning of a watercourse by an internal drainage board – as being within the purview of negligence and not of public law. this way of thinking is merely, however, a product of the current remedial structure of english law and not defensible as a matter of principle. a public authority is obliged, as a matter of public law, to act reasonably so as to ensure that its actions conduce to the public purpose that it exists to attain. this explains, why, for example, the fire brigade must act reasonably in making policy decisions as to levels of staffing, what equipment to buy and so forth. but it also entails that the fire brigade must act reasonably when actually fighting fires: just as unreasonable decisions about staffing and equipment would cause the fire brigade to fail in its duty to protect the public from the dangers of fire so too would unreasonable decisions on the ground. but whereas reasonableness in the former context would involve the traditionally recognized public law virtues of taking into account relevant considerations 10 so, if for example, an authority has a duty to inspect buildings to ensure that they are safe, the owner of a building should not be able to claim compensation if she suffers loss because the authority‟s inspection failed to disclose a defect in the building that made it less valuable but did not render it unsafe. the denning law journal 137 and ignoring irrelevant ones, reasonableness in the latter context would be a matter of practical competence. it would closely resemble what we usually think of as constituting reasonable conduct in the context of negligence law. 11 a similar argument can be made even in relation to those functions that are normally thought of as purely administrative in nature. if the tax authorities decide that a citizen is entitled to a tax rebate, they are then under an obligation to send the citizen in question a letter containing a cheque and this means that the clerk charged with carrying out the task must not forget to do it or post the letter to the wrong address or include a cheque in the wrong amount. in other words, reasonableness on the part of the authorities involves the competent implementation of their higher level decisions as well as the original making of those decisions. if it is accepted that public authorities are under a duty to perform their practical tasks with reasonable competence, then duties to particular individuals to do so will arise according to principles similar to those described above as determining when duties to individuals arise in the making of formal determinations. such duties will arise: where an authority has already decided to confer a benefit on a given individual; where, despite not having decided to confer a benefit on a given individual, an authority is under an obligation as a matter of public law to do so; or where any reasonable authority would foresee that a failure on its part to perform one of its activities with reasonable competence would harm an important interest of an individual, one recognized in general positive law. we can illustrate each of these different types of circumstance by reference again to the case of the fire brigade. i)where the fire brigade, in pursuit of its overarching duty to protect the public from fire, undertakes to put out a fire at a house belonging to a given individual, then it will be under a duty to the individual in question to act with reasonable competence in trying to put out the blaze. ii) where the fire brigade has not undertaken to put out a particular fire but where it is unreasonable, given its overarching duty, not to do so, it will also be under a duty both to attempt to put out the fire and to do so with reasonable competence. iii) where the fire brigade has undertaken to put out a fire at a house belonging to an individual and it is foreseeable that in doing so it may cause harm to recognized interests of the individual, such as person or 11 for an attempted refutation of the assumption that there are two distinct species of reasonableness, one appropriate to negligence and the other to public law, in towards a public law of tort (n 8) 72-74. the public law dimension of public authority liability 138 property, it will be under a duty to the individual to act with reasonable competence in seeking to avoid causing the harm in question. here the duty is identical to the duty the fire brigade would be under in negligence. on the view set out here it owes such a duty concurrently in both negligence and in public law. once it is recognized that the reach of public law extends well beyond the range of cases traditionally dealt with in judicial review, it becomes clear that a satisfactory form of administrative liability must extend equally far, from cases generally thought of as belonging to public law such as the case of the wrongfully withheld licence to cases like that of the fire brigade. i hope it is clear from the above, however, that this does not necessarily entail that there will be liability wherever a public authority harms or fails to confer a benefit on a citizen. it must first be established either that the authority‟s overarching mission is to assist individual citizens in some way or that the exercise of its powers is likely to infringe in some ways citizens' recognized interests. then it must be established that the authority owes a duty to the particular claimant either because the reasonable exercise of the authority‟s power would bring the claimant within its contemplation or because it has undertaken to assist the claimant. and it must also be shown that the authority‟s unlawful behaviour has caused one or more recognized forms of harm to the claimant. one way of implementing liability of this type, would be to identify the duty of care in negligence with the public law duties whose existence i have postulated above. if this were done, the existence of a duty of care could be denied if its imposition would tend to stultify the authority in the performance of the function to which it related. the development of a specialised branch of the law of negligence would be one way of implementing the form of liability i propose. no doubt it might be possible to develop instead other existing torts such as misfeasance in a public office. the most likely method would of course be legislation. but it should not be supposed that the legislative enactment of a form of liability like that outlined here would result in something separate from tort law that could be safely disregarded by tort lawyers. the form of liability proposed here overlaps so much with the existing law of tort and shares so many of its concerns, that it would belong as much in the civil law courts as in the administrative court. the denning law journal 139 3. the gorringe case and liability for nonfeasance gorringe in gorringe v calderdale borough council, 12 the claimant was injured when she drove her car too fast over the crest of a dangerous hill and hit a bus coming in the other direction. at some time in the past, the word “slow” had been painted on the road as it approached the crest but this appeared to have been obliterated by subsequent resurfacing. section 39 of the road traffic act 1988 provided: (2) each relevant authority – (a) if it is a local authority, must prepare and carry out a programme of measures designed to promote road safety…(3) each relevant authority – (a) must carry out studies into accidents arising out of the use of vehicles (i) if it is a local authority, on roads or parts of roads …within their area…(b) must, in the light of those studies, take such measures as appear to the authority to be appropriate to prevent such accidents, including…the construction, improvement, maintenance or repair of roads for the maintenance of which they are responsible and other measures taken in the exercise of their powers for controlling, protecting or assisting the movement of traffic on roads. the claimant argued that that the authority owed a common law duty of care to act reasonably in the fulfilment of its duty under s.39 to improve the safety of the roads in its area. the duty had been breached, she argued, by the authority‟s failure to give further warning of the dangerous nature of the crest. the court of appeal accepted that in principle the authority might owe a duty to improve the road markings if it would be unreasonable in the light of its duty under s.39 not to and it conducted an inquiry into the reasonableness of the authority‟s system for calculating the frequency of accidents on different parts of the road system and for deciding where to spend its budget. in doing so it followed the approach laid down by lord woolf in an earlier case about s.39, larner v solihull metropolitan borough council. 13 may and stuart-smith lj found the system reasonable while potter lj, dissenting, found that it was not. by contrast, the house of lords rejected the idea that a common law duty to act could be based on the existence of a statutory power. it held that there 12 [2004] ukhl 15, [2004] 1 wlr 1057. 13 [2001] rtr 32 (ca). the public law dimension of public authority liability 140 was no duty of the sort that could give rise to an action for breach of statutory duty and, that in the absence of a duty deriving from statute it would be wrong to impose a common law duty in negligence. the authority‟s failure to improve the existing road markings was thus a case of pure nonfeasance. there were no grounds for making it liable for the claimant‟s injury. gorringe is an important case. it illustrates the way in which a case involving public authority liability can cross the boundaries between public law and the ordinary law of tort. on the one hand, the harm suffered by the claimant was physical injury of the sort that commonly forms the subject of negligence actions. on the other hand, the alleged fault of the defendant authority consisted in a failure to fulfil its statutory duties in the way required by the norms of public law and this failure could in principle have been challenged in judicial review. 14 in undertaking a review of the reasonableness of the authority‟s actions, the court of appeal adopted an approach very similar to that advocated in the argument above. the house of lords rejected this approach and by insisting that a common law duty of care cannot be based on a statutory power or duty effectively overruled a long line of earlier cases going back to anns v merton borough council. 15 misfeasance and nonfeasance in his article „the liability of public authorities for failing to confer benefits‟, 16 donal nolan examines the case and ends by endorsing the distinction between misfeasance and nonfeasance upon which the house of lords‟ decision depends. in his discussion of the distinction, he begins by considering lord hoffmann‟s observations in the earlier highway case of stovin v wise. 17 according to his lordship, the two justifications usually given for the rule were that to impose on private individuals a duty to help others might be unduly burdensome and that there is often no principled reason to impose a duty to help on one particular individual rather than another (the „why pick on me‟ argument). neither applied to public authorities since, in most cases in which it was alleged that they had failed in some duty to assist 14 for other examples of negligence cases involving physical harm of which the same might be said see e.g. thomson v home office [2001] ewca civ 331 (negligence action by prisoner attacked by fellow prisoner with razor blade disputing reasonableness of prison governor‟s policy of allowing prisoners to use razorblades) and miller v greater glasgow health nhs board 2011 slt 131 (negligence action by patient who contracted mrsa in hospital based on defective nature of hospital‟s infection control policy). 15 [1978] ac 728 (hl). 16 (2011) 127 lqr 260. 17 [1996] ac 623 (hl) at 946. the denning law journal 141 the claimant, they existed for the very purpose of rendering assistance of the sort in question. nolan notes that these are not especially good justifications for the general presumption against liability for nonfeasance. they do not satisfactorily explain, for example, why an ordinary private person should not be liable for an omission to act in circumstances in which to act would not be unduly burdensome and in which there are no or few other people who could render the assistance required. 18 but, nolan argues, there are more convincing justifications for the differential treatment of misfeasance and nonfeasance. here he cites tony honoré, „who argues that in general harmful abstentions are less culpable than wrongful acts, because while the latter constitute inroads on security, the former threaten only the expectation of improvement, a different and secondary value.‟ honoré‟s argument is false, however, and to see why it is useful to examine the essay in which it is made. 19 honoré begins the essay by pointing out, first of all, that at the level of the general background duties that each of us owes to all the world, there is a good reason to treat misfeasance as more culpable than nonfeasance. the reason is that we can all easily bear duties to refrain from acting so as to harm others but we cannot so easily bear duties to assist others. it is also easier to assign duties to help particular others to persons who have some particular reason for helping those others than it is to assign such duties to citizens in general or to anyone who might be able to help. in other words, honoré starts with the same position as that set out by lord hoffmann in stovin. honoré also acknowledges that there are many situations in which a person may be said to come under distinct, as opposed to background, duties to others and that in these situations it often appears to matter little whether the duty-holder harms the person to whom the duty is owed by acting or by failing to act. so, for example, a parent will be held equally culpable for beating or for starving her child. moreover, honoré tells us, distinct duties may often have greater weight than background ones. honoré provides a familiar list of the types of circumstance in which distinct duties may arise: where d creates a danger which she is then under a duty to prevent harming others; where d holds some special position of responsibility; where there is a relationship of dependence between d and 18 nolan mentions in this connection weinrib‟s article „the case for a duty of rescue‟ (1980) 90 yale lj 247 at 262 and a beever, rediscovering the law of negligence (hart 2007) 210. he is presumably thinking of cases like those of the man who does nothing to help a child drowning in a shallow pond. in such a case, the child can be saved without an undue burden being imposed and if he is the only person present, or one of a small number, the „why pick on me‟ argument has no purchase. 19 t honoré, „are omissions less culpable?‟ in p cane and j stapleton (eds) essays for patrick atiyah (oxford, clarendon press 1991). the public law dimension of public authority liability 142 another; where someone has conferred a benefit on d and she therefore owes a duty in return; and where d has made an undertaking. honoré‟s aim, i take it, is to show that there are reasons for treating misfeasance as more serious than nonfeasance that go beyond this basic distinction between background duties and distinct duties. if it were not, there would be no reason to say anything more once the basic distinction had been made. moreover, to make good the proposition that misfeasance harms security more than nonfeasance it is not sufficient to give examples in which the situations compared both involve background duties, because in such cases the difference in seriousness between misfeasance and nonfeasance can be explained by reference to the basic distinction. this can be seen if we consider an example that honoré seems to think supports his security argument. he says that someone who drops litter is more culpable than someone who fails to pick up the same litter even though the harm caused and the likely effort that would be required to do the right thing would be the same in each case. but here honoré is comparing two background duties: the duty that a citizen owes to society as a whole not to drop litter and the duty that a citizen owes to society as a whole to pick up someone else‟s litter. the greater culpability of breach of the former duty can be explained by the second, “why pick on me” justification for the original point about background duties. we can see this more clearly if we make a comparison of the relative culpability of someone who drops litter with someone whose job it is to pick up the litter and who fails to do so. here it is much less clear that misfeasance is worse than nonfeasance. note also that if, contrary to the argument of the previous paragraph, it is the point of honoré‟s argument merely to show that misfeasance is worse than nonfeasance at the level of background duties then the argument has no relevance to the legal problem under discussion. it is generally accepted that at the background level there should be liability for misfeasance and not for nonfeasance and no one suggests that at the background level public authorities should be liable to help citizens simply because they are practically speaking able to. no one argues, for example, that the fire brigade should be liable for failure to take injured persons to hospital or that the police should be liable for failure to put up adequate signage at a dangerous junction just because they might be capable of performing these tasks. the case made above for duties of care flowing from the statutory duties of public authorities was based on the idea that public authorities owe distinct duties to citizens who would be within their contemplation if they exercised their powers reasonably. a public authority whose mission is to protect some particular interest of citizens can quite comfortably, i suggest, occupy honoré‟s category of persons who are under distinct duties because they hold a position of special responsibility. the denning law journal 143 turning, then, to the question of what honoré says in support of the proposition that at the level of distinct duties misfeasance breaches security more than nonfeasance, the answer is „very little‟. if one makes a series of pairwise comparisons of instances in which similar kinds and degrees of harm are caused by wrongful acts and wrongful failures to act the idea that one is worse than another or that one breaches security more than the other is quickly undermined. so, for example, honoré suggest that a wage cut is worse than the failure to receive a pay rise. i suggest, however, that whether this is so depends entirely on the context and what one has been led to expect. if you work in a company that has been doing badly because of the recession and the necessity of a pay cut has been discussed and the pay cut then turns out to be only 5% of your income, you may be relieved. if, by contrast, you were confidently expecting a christmas bonus worth 10% of your income and you have already bought expensive christmas presents on that assumption then you may be gravely disappointed with a bonus worth only 5% of your salary. in any case, the characterization of either act on the part of your employers as misfeasance rather than nonfeasance is open to question since, at bottom, the employer has a positive duty to pay wages which is derived from an undertaking he has made towards you: even a wage cut can be characterised as a kind of nonfeasance. let us take two more examples. compare someone who is injured in a car crash as a result of the negligent driving of another with someone who suffers the same injury in a train crash which occurs as result of a negligent failure to properly maintain the track. note in this instance that the train is operated and the track maintained by different companies so that it cannot be said that the person who causes harm by their nonfeasance created danger that it was their duty to avert. take secondly the example of a haemophiliac. in one case, someone cuts her by accident and she suffers serious loss of blood. in another case, she cuts herself by accident, starts to bleed and calls an ambulance that fails to arrive due to the negligence of the ambulance crew. can we say that the act of the person who cuts her by accident is worse than the omission of the negligent ambulance driver? the assertion that misfeasance poses a greater threat to security than nonfeasance gains a superficial plausibility from the fact that the word „security‟ tends to connote freedom from physical harm and from the thought that direct acts of violence to the person and many accidents consist in, or are primarily the result of, positive acts. but as the last two examples above show, citizens‟ freedom from physical harm is guaranteed in part by a system whereby many groups of persons are under positive obligations (ones whose breach would be nonfeasance) to provide some form of protection from the public law dimension of public authority liability 144 physical harm. 20 the fact is that we rely for our security as much on the performance of their duties by people who owe us positive duties to act as we do on people refraining from harming us. modern society is a cooperative venture in which risky activities are undertaken and the risk is kept at an acceptable level both by requiring people to refrain from exacerbating the risk and by putting many people, including often public officials, under duties positively to act so as to avert, abate or minimise the risk. our security rests on a pattern of expectations and if there is harm to it, it is as likely to be because of nonfeasance as misfeasance. none of this goes to undermine the misfeasance/nonfeasance distinction altogether. but the only sound basis for the distinction is the initial consideration that it is easier to justify a background duty to refrain from harming others than it is to justify a background duty to help others. nolan is right, of course, that this consideration does not provide a complete justification for the rule against liability for nonfeasance that we have in english law. it does not, for example, justify the rule that there can be no liability where a citizen makes no attempt to help a child drowning in a shallow pond. but this just goes to show that in english law the misfeasance/nonfeasance distinction is pushed to a point further than the arguments that justify it will support. contra nolan and honoré there are no other, better arguments that can justify the practice of english law in this respect and as lord hoffmann pointed out, the basic argument that provides 20 note in this connection, a passage from honoré‟s earlier work with hart causation and the law (2 nd ed, oup 1985) 37: „though what is treated as normal represents in many ways our practical interests and our attitude to nature, it would be wrong to identify as the normal and so always as part of the “mere conditions” of events the course of nature unaffected by human intervention. this is an over-simplification, because what is taken as normal for the purpose of the distinction between cause and mere conditions is very often an artefact of human habit, custom or condition. this is so because men have discovered that nature is not only sometimes harmful if we intervene, but is also sometimes harmful unless we intervene, and have developed customary techniques, procedures, and routines to counteract such harm. these have become second “nature” and so a second “norm”. the effect of drought is regularly counteracted by governmental precautions in conserving water or food; disease is neutralized by inoculation; rain by the use of umbrellas. when such man-made normal conditions are established, deviations from them will be regarded as exceptional and so rank as the cause of harm. it is obvious that in such cases, what is selected as the cause from the total set of conditions will often be an omission which coincides with what is reprehensible by established standards of behaviour...‟ the authors‟ primary concern in this passage is to show that omissions can be causes. but the passage also tends to support the view that, generally speaking, harm-causing omissions – which is to say instances of nonfeasance that take place in the context of distinct duties – are no less serious than harm-causing acts. the denning law journal 145 such justification as there is has little application to the case of public authorities. a final observation in relation to honoré‟s argument concerns again its relevance. suppose that the argument somehow succeeded in showing, in the context of distinct duties, that misfeasance was worse than nonfeasance. what significance would this have for the present debate? nolan‟s use of the argument is intended to show that where a public authority fails to discharge a public law obligation to assist a citizen it is somehow to be taken less seriously than if a person (public or private) who has incurred a distinct duty on private law principles to assist another fails to discharge that duty. but a general argument of the sort that nolan imputes to honoré could just as well be taken to show that nonfeasance was less serious than misfeasance in the latter case as it could be taken to show that nonfeasance was less serious than misfeasance in the former case. the lesson is that only arguments that are aimed specifically at demonstrating that the interests recognized in public law are worthy of a lower level of protection than are those recognized in the orthodox law of tort will achieve the result nolan wants. he offers two of these but they are extremely weak. 21 i quote the first: “...as simmonds has observed, “the more extensive the protective scope of the state's authority, the less we will be inclined to regard tragedies as the result of ill-fortune, and the more we will seek to ascribe blame”, 22 and yet it seems paradoxical that the more things that governments do, and the more measures which they take to protect the public, the more likely it is that they will be criticised (and possibly sued) for not doing more. indeed, it has been argued that this paradox is a potentially dangerous one, since attaching liability to government attempts to protect citizens may deter the state from involving itself in such matters, though obviously this danger would not arise if the withdrawal of state protection would be politically unacceptable, as it obviously would be in areas such as policing and social services.” 23 21 he also offers a further consideration in favour of the basic misfeasance/nonfeasance distinction namely the support they find in the works of the rights theorists allan beever and robert stevens. i advert again to this aspect of his argument in my conclusion below.it suffice it to say here that the other reasons he advances to support his view suggest that he does not really find beever‟s and steven‟s positions plausible himself. 22 here nolan cites ne simmonds, „justice, causation and private law‟ in m d'entrèves and u vogel, public and private: legal, political and philosophical perspectives (routledge 2000)171. 23 ibid 285. the public law dimension of public authority liability 146 to begin with the first sentence in this passage, it is of course true that the more one creates the expectation that people will be protected from particular harms, the more likely one is to be criticised if the protection in question is not forthcoming. this is hardly a reason for not providing the protections in the first place. if it were, then we ought to go back to a time when, for example, the poor were allowed to live in a state of semi-starvation or grow up illiterate or when fatal infectious diseases were allowed to spread unchecked through the population. 24 but the point of the passage is that somehow attaching liability to pay damages to the failure to perform public functions, in addition to all the other remedies that may be invoked for dealing with such failure, might discourage the state from taking up such functions. this argument has little to recommend it. public authorities are already subject to liability in relation to many of the services they provide. the nhs can be sued for failure to provide adequate health care; 25 education authorities can be sued for failure to adequately address a child‟s education needs; 26 child protection authorities can be sued for failure to remove children suffering abuse from their families; 27 highway authorities can be sued for failure to maintain the highway. 28 and in cases where there is no liability for nonfeasance there is often the possibility of liability for misfeasance: so, for example, the work of the police and of the fire services carries very real risks of positively causing harm to citizens or their property and in the case, certainly, of the former, not infrequently gives rise to liability. 29 the state shows no sign of withdrawing from any of these areas. nolan accepts that the danger of the state withdrawing from particular functions will not arise when it would be politically unacceptable to do so, and cites the cases of policing and social services. 30 this admission perhaps 24 it is perhaps worth adding that the fact that the provision of welfare creates expectations is one of its desirable features since the avowed aim of the welfare state is not only to remove poverty, ignorance, disease and so forth but to also to remove the fear of them. 25 bolitho v city and hackney health authority [1998] ac 232. 26 phelps v hillingdon lbc [2000] 3 wlr 776 (hl). 27 jd v east berkshire community health nhs trust [2004] qb 558 (hl). 28 highways act 1980, s 41. 29 see eg taylor v chief constable of thames valley police [2004] ewca civ 858, [2004] 1 wlr 3155. 30 he also very fairly cites in a footnote booth and squire‟s argument (made in the negligence liability of public authorities (oup 2006) 8.40) that holding public authorities liable for negligent interventions, but not for negligent failures to intervene, may have the effect of distorting their priorities in sensitive contexts such as child protection . the denning law journal 147 undermines his argument more than he realises since it is hard to think of many areas of protection from which it would be politically acceptable to withdraw. if, moreover, the general principle were established that there should be liability where public authorities failed to act lawfully or with reasonable care in carrying out their functions, it would always be open to parliament to override the principle in relation to a particular function if it took the view that the imposition of liability was rendering impractical the performance of the function in question. one might also ask the question: if the imposition of liability is likely to discourage the state from providing beneficial services, why are we not worried that the imposition of liability on private persons who provide beneficial services might discourage them? the idea that someone who creates the expectation that she will provide some service or deliver some benefit will be liable if she fails to do so or falls below a certain standard in trying to do so is at the root of a number of legal doctrines, not least the doctrine that someone who assumes responsibility towards another for the performance of some task will be under a duty of care towards that other. if there is a danger of the state being discouraged from providing protections of various sorts by the prospect of liability, why is there no danger of solicitors being discouraged from drawing up wills, 31 or surveyors being discouraged from surveying houses 32 or employers being discouraged from giving references? 33 the answer that might be given is that even where the duties in such cases arise independently of any contract between the service provider and the person to whom the duty is owed, the service provider has some incentive for providing the service: she has a contract with some other person to provide the service or stands to gain some business advantage from providing it. it might be supposed that this was a point of distinction between the case of a private professional person or service provider and the case of the state. this supposition would be mistaken., however. if we look at the matter, first of all, from a practical point of view, the legislature has an incentive to legislate for the provision of services, namely that the electorate wants and expects it. if we ascend to a higher level of abstraction, then we may think of the state as the embodiment of the citizenry as a whole and as existing to protect its members from harm and to further their welfare. 34 if we think of the state in this way, then clearly it has an incentive to provide services that benefit its 31 white v jones [1995] 2 ac 207 (hl). 32 smith v eric bush [1990] 1 ac 831 (hl). 33 spring v guardian assurance [1995] 2 ac 296 (hl). 34 cf q skinner, „a genealogy of the modern state‟ (2009) 162 proceedings of the british academy 325. the public law dimension of public authority liability 148 members and this incentive will only be removed if the cost of compensating those who suffer harm where the powers to provide the service are exercised unlawfully or carelessly outweighs the wider benefits to the citizenry as a whole. considered at this abstract level, moreover, harm caused by the state‟s unlawful or careless exercise of its power is a social cost whether borne by the state itself or by the individuals upon whom it falls. since the harm is ex hypothesi the state‟s fault, there is no reason why it should be borne by individuals and to leave them to bear it is unfair. 35 the second further consideration that nolan advances in support of gorringe is that other avenues of redress may prove more efficient and effective than negligence liability. he mentions in this connection the ombudsman, actions under the human rights act and statutory or administrative compensation. recommendations of ombudsmen do not confer on persons who have suffered harm as a result of public law unlawfulness a right to compensation, while not every instance of harm-causing public law unlawfulness involves breach of a human right, gorringe itself being an example. of course, it might be the case that some specialised form of statutebased public liability would do a better job of providing redress in cases like gorringe than the law of negligence. but to assert this is to state a conclusion rather than provide an argument. to have a clear idea of what kind of solution would be better, one would have to spell out in some detail what the proposed solution would look like, something which nolan does not do. assumption of responsibility rejection of the idea that public authorities‟ possession of statutory powers and their mission to protect citizens from various ills are reasons to find that they owe a duty of care has a corollary: that in seeking to determine when authorities should be under a duty to assist others, one is bound to concentrate on the use of purely private law concepts. nolan undertakes a careful examination of how these concepts apply in cases of nonfeasance. he concludes that the doctrine of reliance affords little assistance to claimants because even where a claimant has been induced to rely on an authority by representations it has made or by the past regularity of its conduct, this is hard to prove. he then examines the doctrine of assumption of responsibility and tries to make sense of the inconsistent pattern of decisions 35 i have spoken here of the state causing harm whereas nolan is careful to talk of it failing to confer benefits. it is of course the aim of my argument to show that in relation to the kinds of situation in which a case for public authority can be made, there is no difference. but even if one uses the language of conferring benefits, it is unfair that a few people should fail to receive a benefit in circumstances in which most people receive it and in which it would normally be expected to be conferred. the denning law journal 149 in relation to rescue services. he suggests that the reason why there is an assumption of responsibility and hence a duty of care when an injured person summons an ambulance but none where the fire brigade is summoned to put out a fire or the police are summoned to the scene of an emergency is that in the first case, but not in the second and third, there is a foreseeable possibility of detrimental reliance: someone who summons an ambulance is likely to renounce the alternative means of transport available to her whereas the person who summons the other emergency services is likely to have no other means of assistance to renounce. the paradoxical consequence of this reasoning is that the more absolutely dependent a citizen is on the protection provided by a public authority, the less likely the authority is to owe her a duty of care. nolan also rebuts the claim, accepted by judges in a number of cases, 36 that where a public authority is subject to a statutory duty to act it cannot be said to have assumed responsibility towards those affected by its action because it was not acting voluntarily. nolan argues that this view rests upon a misinterpretation of the word „voluntary‟ and that in the context of assumption of responsibility an act is voluntary because it is „conscious‟, „considered‟ or „deliberate‟; were it otherwise, conduct done in pursuance of a contractual obligation could not amount to an assumption of responsibility. this is true enough, but it remains the case that assumption of responsibility is an inadequate concept for deciding when a public authority should be held to owe a duty towards citizens belonging to the class of persons whose purpose it is to assist. one reason for this is that there are situations in which an authority ought to help a citizen even though, with respect to the citizen in question, it has done nothing voluntary in either the sense nolan criticises or the one he endorses. to give an example, in the current state of the law, an authority charged with the protection of vulnerable children owes a duty of care to a vulnerable child whose need for protection comes to its attention. 37 but, as nolan points out, the decision that establishes this is inconsistent with the reasoning in gorringe. suppose that the position were governed by gorringe principles and suppose further the existence of two contrasting cases. in the first, the authority is apprised of the needs of a particular vulnerable child and wrongly and carelessly concludes that the child should be left with her parents. in the second, the authority is told by a reliable informant that a particular child needs its help but does absolutely 36 by lords bingham and mance in customs and excise commissioners v barclays bank plc [2006] ukhl 28; [2007] 1 ac 181 [14] and [94] respectively; by andrew simmons qc in neil martin ltd v revenue and customs commissioners [2006] ewhc 2425 (ch) [97]; and by dyson lj in rowley v secretary of state for work and pensions [2007] ewca civ 598; [2007] 1 wlr 2861 [54]. 37 see jd v east berkshire (n 27) above. the public law dimension of public authority liability 150 nothing, perhaps because it is so disorganized that letters and other sources of information are simply lost or filed in the wrong place. if „assumption of responsibility' means anything it must require the defendant to perform some act to bring itself into a relationship with the claimant. there is no such act in the second case. and yet to assert that there should be liability in the first case and not in the second, as the logic of gorringe requires, would be to make an indefensible distinction. the underlying reason why we would regard the result in the second case as wrong is, i suggest, as follows. where an authority exists for the very purpose of protecting children and the reasonable exercise of its power would bring it into a relationship with a particular child and where it could, by the reasonable exercise of its powers, protect the child in question then for it not to do so is wrong and culpable whether it performs some voluntary act with respect to the child or not. 38 it is always open, of course, for someone who believes that the gorringe position is correct to insist that in the cases in which there is no assumption of responsibility, the claimants have not really suffered harm, or more generally, that wherever orthodox negligence principles do not indicate the existence of a duty of care there is no harm of a sort that the law should concern itself with. the logical conclusion of this way of thinking would be to deny that there is anything wrong at all with the cases generally taken to indicate a deficiency in the law concerning administrative liability. if one took this view, one could then rejoice that our courts wisely refuse to award compensation to citizens wrongfully deprived of licenses 39 or whose person or property the relevant authorities incompetently fail to protect. this does not appear to be nolan‟s position, however. 40 alternatively, one can support the gorringe position while accepting, as nolan appears to, that there are deficiencies in our law of administrative liability. but in that case there seems little point in discussing at length how orthodox negligence principles should apply to public authorities in cases in which they are acting in pursuit of statutory duties that have no equivalent in the private sphere. a satisfactory public law solution would supplant the use of negligence and the only question that would remain for those who adopted a purely private law perspective would be where to draw the line between the system of public law administrative liability and private tort law. 38 a similar argument can be made in relation to general reliance, a doctrine that nolan discusses sympathetically. 39 as to which see the discussion of the jain case below. 40 that it is not is indicated by his use of the quotation from beever discussed in the conclusion below. the denning law journal 151 4. jain and the misuse of licensing powers nolan‟s approach to the problems raised by public authority liability is firstly, to endorse an approach which makes public authorities liable in tort only where a private person analogously placed would be and secondly, to assert that the special problems raised by public authorities should be cordoned off from the law of tort and treated as solely the province of public law. a distinct but related approach involves accepting that the law governing public authority liability is in certain respects unsatisfactory but insisting that its defects could be remedied by drawing upon the conceptual resources of the ordinary private law of tort. one example of this approach is to be found in a recent article 41 about the jain case 42 by roderick bagshaw. in jain, the claimants were the proprietors of a nursing home. in the exercise of its statutory powers the defendant health authority made an ex parte application to the local magistrate‟s court for an order cancelling the home‟s registration. the application was made on the basis of a slipshod investigation and inaccurate information but since the claimants were not made aware of it they were not able to contest it and the order was granted. the claimants successfully appealed against the order but by the time the appeal was granted four months had passed and their business was ruined. the claimants sued the authority on the basis that it had breached a common law duty of care owed to them in making the application. their claim succeeded at first instance but was rejected by the court of appeal and house of lords. in denying the existence of a duty of care, the house of lords held that a duty to the claimants would conflict with the authority‟s primary duty under the statute which was to protect the welfare of the inhabitants of nursing homes. it also held that it would be inappropriate to impose a duty of care in relation to proceedings leading to a court application, the task of ensuring that such proceedings were properly conducted being a matter for the court in question; and it emphasised that in future cases involving misuse of licensing powers a remedy was likely to be available under the human rights act. 43 if one discounts the quasi-judicial nature of the process that caused the claimants‟ loss in jain then it is on all fours with other cases in which the value of a business is diminished as a result of the misuse of regulatory powers. bagshaw argues, plausibly, that it is open to doubt whether every such misuse of regulatory powers would involve breach of convention rights. 41 r bagshaw, „negligently making business activities illegal: jain v trent strategic health authority‟ (2009) 17 tlj 295. 42 jain v trent strategic health authority [2009] ukhl 4 [2009] 2 wlr 248. 43 the facts giving rise to the case occurred before the coming into force of the act. the public law dimension of public authority liability 152 he suggests that rather than thinking in terms of some general extension of administrative liability we should consider an incremental development of the law of negligence to cover the narrower class of cases to which jain belongs. it does not seem to be bagshaw‟s intention that this development should involve any fundamental rethinking of the relationship between statutory powers and duties on the one hand and the duty of care on the other,: his sole apparent motive for suggesting the development of liability in cases like jain is that, in the words of the house of lords, its outcome – and presumably that of other licensing cases – was „regrettable‟. and although he says nothing to suggest that a duty of care of the sort contemplated should be imposed on anyone who is not a public authority possessing regulatory powers, his idea seems to be that the incidence of the duty of care and the standard of care required should be determined on the basis of the kind of balancing of likely costs and benefits by means of which these questions are conventionally thought to be determined in the law of negligence, regardless of whether the defendant is a public authority or a private person. in other words, the standard he imagines being applied in such cases are ones that might apply to a private defendant even though there are none. 44 44 in an earlier article, „monetary remedies in public law – misdiagnosis and misprescription‟ (2006) 26 ls 4, bagshaw suggested that five problems needed to be investigated with a view to incremental development of the law: „first, when particular classes of public professionals should be subject to professional duties, and who those duties should be owed to. secondly, when a body charged with granting licences to others which are required to allow them to participate in a profitable activity should be required to compensate those who it has incorrectly denied a licence. thirdly, when a body charged with regulating so as to reduce an external risk should be required to compensate those who have suffered due to a regulatory failure. fourthly, when a body charged with investigating and prosecuting wrongdoing should be required to compensate those who have suffered harm as a result of the investigative and prosecution process. fifthly, how a body charged with choosing between strategies which create risks for others should be required to assess those risks and evaluate them in the decision-making process, and when such a body should be held liable to pay damages for harms caused by its chosen distribution.‟ liability in relation to all these areas might seem to cover so many of the cases that would be covered by a system of liability for public law wrongs that one might take bagshaw to be in favour of such a system. but the paper from which it is drawn is a critique of the law commission‟s 2004 consultation paper on public authority liability (monetary remedies in public law) in which bagshaw castigates the commission for supposing that there is some general deficiency in the system of remedies available in public law or in the relationship between public authorities and tort law. his selection of problems for further investigation reflects the belief that rather than one big problem there are a number of smaller problems each susceptible of treatment in accordance with the accepted techniques of english tort law. the view expressed in the paper the denning law journal 153 it is worth pointing out straight away that in one respect, the development bagshaw suggests would inevitably extend to a wider class of cases than he makes explicit. bagshaw writes of the economic loss that occurs where an activity becomes or remains unlawful as involving the wrongful denial or revocation of a license or permission. where a license is required to perform some activity, the lack of a licence may be simply due to the licensing authority‟s failure to respond to an application for the licence‟s grant or renewal: to adapt a hypothetical illustration given by lord hoffmann in stovin v wise, 45 the application may simply be languishing at the bottom of a filing cabinet. 46 in other words, the putative claimant may be the victim of nonfeasance rather than misfeasance and it is hard to think of a reason why this should not be the subject of liability if the positive wrongful denial of a licence can be. but recognition of this point should lead us to ask a much larger question: if there can be liability in respect of the wrongful refusal or cancellation of a licence why should liability not be extended so as to cover a much wider range of cases in which public authorities have the power to make determinations vital to the welfare of citizens and in which the absence of liability strikes us as unfair or „regrettable‟? if (considerations of quasijudicial process aside) a health authority should be liable where it destroys a business by wrongfully cancelling a care home‟s registration should it not also be liable where it fails in its primary purpose of protecting the welfare of care home residents by wrongfully omitting to deregister a badly run care home? and if an authority should be liable for wrongful failure to fulfil its primary purpose of protecting some class of citizens, why should it not be liable in those cases in which its role is not a regulatory one but in which its primary purpose is to provide some benefit directly to citizens, as where it has a responsibility for housing homeless persons 47 or making decisions as to discussed in the text thus seems consistent with the views expressed in the earlier paper. 45 (n 17) 956. 46 or the authority may send the license to the wrong address so that the applicant is effectively unaware that a decision has been made in her favour. such a failure is, i suggest, better characterized as an omission than as an act: it is a failure to do the things necessary to communicate the authority‟s decision to the applicant. cf neil martin ltd v revenue and customs commissioners [2007] ewca civ 1041, [2007] all er (d) 393. 47 o’ rourke v camden borough council [1997] 3 wlr 86 (hl). the public law dimension of public authority liability 154 whether to fund treatment for some unusual medical condition 48 or obtaining maintenance for a mother who has separated from an abusive husband? 49 bagshaw‟s answer is that the regulation of economic activity affects the „liberty‟ of those regulated. presumably, then, the ground of distinction between the case of economic regulation and the case in which a public authority determines whether a citizen should receive accommodation or health care or financial assistance is that in the case of economic regulation something has been removed from the regulated person that she would normally have a right to whereas, in the other cases, the citizens concerned are appealing to the state‟s largesse. in other words, bagshaw‟s argument appeals to the traditional notion that our liberty is the residue remaining where positive law has not intervened and represents the wrongful deprivation of a licence as constituting an incursion into that liberty by administrative action from which we require protection. it has to be admitted that this kind of argument has a strong grip on the common law imagination. it explains why the licensing example is so often used to illustrate the inadequacy of our law of administrative liability and also why the law commission, in the report referred to in the introduction to this article, focused on examples of the same type when arguing for its proposed reforms. nonetheless, it is ill founded. once a statutory regime is introduced which determines when and whether persons can carry out a particular activity, then if there ever was a liberty to perform it (which is not always the case) the liberty is extinguished. one thinks in this connection of the effect of the town and country planning act 1947. prior to the act, a landowner was free, subject to the law of nuisance, to build what he pleased on his land or to change its use as he wished. the act extinguished these rights. the ability to develop land became dependent on the grant of planning permission or the making of secondary legislation under the act by the secretary of state. wherever a regulatory regime of this type is introduced, the right to act in the relevant respect becomes similarly dependent on the exercise of official discretion. there is thus no ground in positive law for treating an authority‟s abuse of its power to give or withhold a licence required to perform some activity as more serious than abuse of its power to give or refuse to give some benefit directly to a citizen. in each case, some important interest of the citizen depends upon the decision of the authority and in each case, the authority must exercise the power fairly and reasonably and with due regard for the interests of the citizen concerned. at one point in his argument, bagshaw says 48 r v north derbyshire health authority ex p fisher (1998) 38 bmlr 76 (qb). 49 rowley and others v secretary of state for the department of work and pensions [2007] ewca civ 598, [2007] all er (d) 186. the denning law journal 155 in respect of marketable licences „that a new form of intangible property may exist within the regulatory state which is sufficiently important to human flourishing to be protected alongside “property”‟. 50 this is a much better description of the interest in issue in business licensing cases generally than the description of it as a liberty interfered with by the state, but it means that the interest in question belongs to the same category as the various benefits that public authorities have the power to bestow directly. 51 for a judge to differentiate between such interests on the ground that one is a liberty and the others not would be, wittingly or otherwise, to impose an ideological preference and to create an ordering that has no sanction in existing positive law. underlying bagshaw‟s proposal is the view that the careful piecemeal development of the law is to be preferred to grand solutions. if one remains always at the level of detail, however, one is likely to miss a larger question: should we employ a method that involves deriving duties whose breach sounds in damages from the overarching statutory duties of public authorities and from the public law norms that govern the exercise of their powers; or should we accept the blanket exclusions of this method contained in the judgments in gorringe and jain? to proceed in the way bagshaw recommends is to choose the latter option by default. yet to choose the former option would not entail the unrestricted expansion of liability to cover every case in which a public authority caused harm by its unlawful acts or omissions. if, for example, one were to try to implement the form of liability i outlined above by identifying public law duties with the duty of care in negligence it would still be possible to exclude the duty of care if its imposition was shown to be likely to stultify the authority in the performance of the function whose exercise was in issue. the starting point would be, however, that in a wide range of cases the activities of public authorities are governed by norms that exist to further and protect the interests of individual citizens and that breach of these norms can, in principle, give rise to liability to pay compensation. 5. conclusion nolan concludes his evaluation of gorringe by citing approvingly a quotation from allan beever‟s rediscovering the law of negligence. 52 50 (n 41) 303. 51 cf c reich, „the new property‟ 73 yale lj 733 (1964). 52 (hart publishing 2007) 340. the public law dimension of public authority liability 156 “the problem as identified concerns the state's obligations to its citizens. accordingly, the appropriate place to deal with this problem, if it can be dealt with in law at all, is in the area of law that controls the relationship between the state and its citizens: public law. it may be that, for instance, the state possesses special obligations to rescue its citizens from harm that private persons do not possess. if these obligations exist, their justification lies in the nature of the state, not in the structure of tort law. moreover, if these obligations exist, it is not necessarily the case that tort law ought to protect them. perhaps it would be better to institute or strengthen a separate public law area of accountability … the point is … that, if the state has special obligations, those are a product of the kind (or kinds) of legal entity it is and not of the law of negligence … . tort law should not be used as the law's swiss army knife to fix potential inadequacies in public law. it has a structure of its own.” in its original context, this passage is, of course, the expression of a general theory. according to the theory the law of negligence exists to protect a set of primary rights and these are identifiable without reference to policy considerations and independently of the process of defining the duty of care in particular cases. a duty of care can only arise in relation to activities that create a foreseeable risk that a primary right will be infringed or where a new right arises as a result of an undertaking by the defendant. a corollary of this is that public authorities can only owe a duty of care in circumstances in which a private person analogously placed would do. there can thus be no liability in negligence for public law wrongs. in seeking to justify the decision in gorringe, nolan invokes this theory and the very similar one proposed in relation to the law of tort as a whole by robert stevens. 53 the two theories are either correct or they are not 54 . if they are correct then they provide a complete account of what the law governing the tort liability of public authorities should be. if not, they can be ignored. it makes little sense to invoke them (as nolan does) as one of a number of considerations that support the status quo, especially when the other 53 see r stevens, torts and rights (oup 2007). 54 most commentators have found them to be implausible: see eg c witting, „the house that dr beever built: corrective justice, principle and the law of negligence‟ (2008) 71 mlr 621; m lunney, „counterfactuals and corrective justice: legal history and allan beever‟s reconstructing the law of negligence‟ (2009) 17 tlj 219; j. murphy, „rights, reductionism and tort law‟ (2008) 28 ojls 393; p cane review of stevens torts and rights (2008) 71 mlr 641; p cane, „rights in private law‟ in nolan and robertson (eds) rights and private law (hart 2012). the denning law journal 157 considerations include policy arguments of the sort that the theories are specifically designed to exclude. putting this to one side, however, the quotation is also the expression of a widely held attitude and for this reason it is worth criticising independently of any detailed consideration of the theory that supports it. three observations are worth making. firstly, the quotation ascribes to tort law a conceptual unity that it simply does not possess. secondly, it assumes a clear division between tort and public law that has never existed in english law. the law of tort has always been used to hold public bodies to account. 55 it remains the case that the only way of seeking a monetary remedy in judicial review proceedings is by appending a claim in tort 56 and despite judicial dicta discouraging the use of public law concepts in negligence cases, 57 the phenomenon whereby the public law lawfulness of an official‟s acts are examined in a tort action is entirely familiar. 58 given the weakness of the public/private divide in our tradition, it is quite natural to seek to address the deficiencies in our system of administrative liability by developing the law of tort. thirdly, however, it is certainly possible to argue that it would be better to develop a discrete and purely public law monetary remedy. to do this, one would have to develop a set of functional equivalents for many of the concepts used in tort – proximity, recognized forms of harm, causation and so forth. but one can only make this argument on the basis of a proper examination of the state of public law as well as that of tort. to do it one would have to work out the dimensions of the proposed form of liability, which kinds of case it would and would not cover and how far it would encroach upon the territory traditionally thought to belong to tort. one cannot do this by adopting a purely private law perspective. nor, in advocating such a solution, should one be motivated solely by the desire to see the orthodox law of tort continue unchanged. to conclude, the writings i have examined in this article disclose no general a priori reason why the public law obligations of public authorities should not be reflected in duties of care or other forms of tortious duty. nor do they make a convincing case that a satisfactory law of public authority liability can be created purely by the use of private law concepts. it may be that the best solution to the problems of public authority liability is to create a completely separate and parallel monetary remedy in public law. but this is a 55 see dicey law of the constitution 10 th ed by ecs wade (macmillan 1959) 193. see also a bradley, „administrative law and the law of torts – and unresolved boundary dispute?‟ [1989] the law teacher 109, 111. 56 senior courts act 1981 s 31(4). 57 see e.g. the speeches of lords slynn and hutton in barrett v enfield lbc [1999] 3 wlr 79 (hl) and lord steyn in gorringe (n 12). 58 as for example in police cases such as mohammed-holgate v duke [1984] ac 437 (hl). the public law dimension of public authority liability 158 solution that can only be reached by means of a full examination of both sides of the public/private divide. microsoft word 22-3 slcw amends kosovo 131010.doc 51 the denning law journal 2010 vol 22 pp 51-85 calling kosovo’s constitution: a legal review1 dren doli2 and fisnik korenica3 abstract one of the world’s youngest constitutions, the constitution of kosovo not only summarises the international community’s prescribed obligations towards kosovo’s polity and establishes the polity per se, but also determines kosovo’s governing system and prescribes the rights and liberties of kosovo’s citizens. the constitution also determines the extra rights of ethnic minorities and assigns guarantees for their participation in public life. the constitution, moreover, specifies its relationship with the ahtisaari plan and lays out the international civilian representative’s position in kosovo. to better understand these attributes, this paper shall conduct both a legal review of the kosovan constitution and draw some conclusions about the governing system and model of democracy established by the constitution. keywords. kosovo’s constitution, ahtisaari plan, sovereignty, assembly, government, president, judiciary, constitutional court, international civilian representative, ethnic minorities introduction in the days following the north atlantic treaty organization’s (nato) successful deployment of peacekeeping forces in kosovo, the united nations (un) security council adopted resolution 1244. fourteen members of the 1 the authors want to thank the editor-in-chief of the denning law journal and the anonymous peer reviewers, for their invaluable comments and guidance. 2 dren doli is a senior lecturer on law principles at universum university college, having served earlier as a senior legal executive for integration to the prime minister of kosovo. 3 fisnik korenica is a lecturer on the theory of state and law at the university of prishtina, and a senior lecturer in constitutional law at universum university college. calling the kosovo’s constitution: a legal review 52 security council voted for the resolution, none opposed it, and china abstained.4 issued under the authorisation of the united nations charter,5 this resolution established the united nations interim administration mission in kosovo (unmik) and authorized un peacekeeping forces.6 the resolution directed unmik to establish a civilian administration in kosovo, with the goal of building provisional and self-governing kosovan institutions.7 as the first steps toward developing democratic institutions, unmik adopted the constitutional framework for kosovo,8 which not only established kosovan transitional institutions, but also provided domestic legitimacy for the unmik’s powers in kosovo, in addition to the constraints implied vis-à-vis the kosovan provisional institutions. the constitutional framework did not imply any sovereign powers for the provisional institutions, however, it did establish most of the basic institutional structures of a polity. during the transitional phase, the framework generally has been considered a de-facto constitution of kosovo,9 and as such acknowledges the attributes of a state that it created throughout kosovan public life. in october 2005, following international developments surrounding the kosovo issue, the security council authorized the initiation of the international settlement process on kosovo’s status. in addition, the security council embraced the secretary general’s attempts to begin the negotiation process between kosovan representatives and serbia, as foreseen in resolution 1244.10 as a consequence, the secretary general appointed marti ahtisaari to be the special envoy for the future status of kosovo.11 ahtisaari’s responsibilities included organizing the negotiation process between the kosovan people’s representatives12 and serbian institutions. if it appeared that 4 un doc. s/res/1244 (1999) of june 10 1999. 5 see chapter 7 of the un charter. 6 see paragraph 10 of resolution 1244 (un doc. s/res/1244 (1999) of june 10 1999), which authorizes the secretary general to deploy a civilian mission in kosovo. 7 matheson m j “united nations governance of post-conflict societies” (2001) the american journal of international law vol 95 no 1 76–85. 8 unmik regulation on constitutional framework for provisional self-government in kosovo no 2001/9. 9 weller m contested statehood: kosovo’s struggle for independence (new york: oxford university press, 2009). 10 un doc s/prst/2005/51. 11 un doc s/2005/708 and s/2005/709. 12the serbian government did not accept the idea that representatives of the kosovan people are, simultaneously represent both kosovans and the local serbian community in kosovo. however, legally, the kosovan negotiating party included members of ethnic minorities – as provided by the international community’s prescription; thereby the representatives of the kosovan people also represent the serbian minority in the denning law journal 53 the negotiating parties could not reach agreement, the un tasked ahtisaari with drafting a proposal for the determination of kosovo’s status in accord with the contact group’s policy on kosovo’s status.13 the negotiations between the kosovan people’s representatives and serbian institutions failed14 because of disagreement over kosovo’s international status. serbia insisted that kosovo could not become a state, whereas the kosovan people’s representatives claimed that the only acceptable solution was an independent kosovo.15 nevertheless, as kerlindsay argues, “the status process was not about discussing status options, such as autonomy—instead, it was about creating the structures for a kosovo state.”16 following the failure of negotiations, marti ahtisaari drafted a plan for kosovo’s status, called the ahtisaari plan,17 and sent it to the security council for adoption.18 despite the secretary general’s endorsement of the ahtisaari plan, the council did not approve it because of fundamental disagreements among council members.19 20 thus, resolution 1244 remained in force.21 following these developments, the united states and its european allies began to search for a solution that would employ the ahtisaari plan while still kosovo (see the statements of the negotiating group of kosovo, delivered through the kosovan president). 13 un doc s/2005/709. the contact group’s policy upon kosovo’s status prescribed three prohibitions: no union with another country, no return to the pre-1999 position and no partition of kosovo. 14 erler g “kosovo 120 days after the constitution’s adoption” (2008) sudosteuropa mitteilungen. vol 05-06 16–21. 15 kostovva d “legitimacy and international administration: the ahtisaari settlement for kosovo from a human security perspective” (2008) international peacekeeping. vol 15 no 5 631–647. 16 ker-lindsay j “from autonomy to independence: the evolution of international thinking on kosovo, 1998–2005” (2009) journal of balkan and near eastern studies vol 11 no 2 141–156 (quoted from page 153). 17 ‘ahtisaari plan’ is a short name for the international comprehensive proposal for the kosovo status settlement of 2007, proposed by the united nations office of special envoy for kosovo (ahtisaari plan, in the official form, is un doc. s/2007/168/ad 1, march 26 2007). 18 un doc s/2007/168 of march 26 2007. 19 for the importance of a security council-approved settlement for kosovo’s status, see the contact group minister’s statement on kosovo, s263/2007, september 27 2007. 20 un doc s/2007/168 of march 26 2007. 21 serbia holds that resolution 1244 prohibits the kosovan declaration of independence. see a comprehensive report on this at: security council report, kosovo, update report no 1, march 10 2008. available at: <http://www.securitycouncilreport.org/site/c.glkwlemtisg/b.3945613/>. calling the kosovo’s constitution: a legal review 54 following resolution 1244’s prescriptions. in the meantime, under close supervision by the international community, the kosovan people’s representatives declared kosovo’s independence, requesting recognition from individual states.22 the kosovan declaration of independence stated that kosovo shows its appreciation for an international mission through the european union and acknowledges the ahtisaarian obligations over kosovo’s polity.23 still, because of the deadlock in the security council over a joint accord about kosovo, the united states and the main european powers decided to recognise unilaterally kosovo’s independence.24 in the meantime, although the european union (eu) had shown its unwillingness to deploy a mission without clear authorization from resolution 1244, either through the security council or the secretary general,25 it replaced unmik with the european security and defence policy (esdp) mission in kosovo in the post-status phase. hence, in a joint interaction between the un secretary general, the united states and the european union, these actors agreed to make a place for the esdp mission in kosovo and transfer most of the existing powers of unmik to the esdp mission.26 therefore, the european union mission in kosovo27—the european union rule of law mission in kosovo, known as eulex—took over the responsibility of supervising the kosovan institutions’ independence along with european union special representative (eusr).28 the european union also assigned the eusr the duties of the international civilian representative (icr), as requested by the ahtisaari plan. the eusr nominee, peter faith, was, therefore, confirmed both as the eusr and the icr.29 it is important to 22 kosovo’s declaration of independence, february 17 2008. 23 this declaration accepted the international constraints upon kosovo, and recognized the significance and position of the ahtisaari plan, kostovicova, d “legitimacy and international administration: the ahtisaari settlement for kosovo from a human security perspective” (2008) international peacekeeping vol 15 no 5 631–647). 24 advancing freedom and democracy reports: kosovo: united states departament of state, bureau of democracy, human rights and labour. may 2008. 25 council of the european union, 6496/08 (presse 41) press release 2851st council’s meeting, general affairs and external relations, brussels, february 18 2008. 26 un doc s/2008/354, un doc s/2008/458, and un doc s/2008/692. 27 council joint action 2008/124/cfsp of february 4 2008 on the european union rule of law mission in kosovo, eulex-kosovo, official journal of the european union l42/92. 28 council joint action 2008/123/cfsp, february 04 2008 appointing a european union special representative in kosovo. official journal of the european union, l42/88. 29 press statement, first meeting of the international steering group (isg) for kosovo, february 28 2008, paragraph 3, vienna. the denning law journal 55 note that the icr “was modeled after the office of the high representative in bosnia and herzegovina, whose powers to override the local legislative decisions and rule by decree have, since 1995, illustrated the pitfalls of building democracy by undemocratic means”.30 given this, one may consider kosovo’s statehood-building31 as an internationally driven process that culminated in the ahtisaari plan.32 the plan provided broad guarantees for the protection of the serbian minority in a sovereign kosovo, including a deep decentralization process that favoured the serbian minority.33 although the plan was not formally adopted in the security council, it did determine substantial and formal matters in relation to the establishment of kosovo’s statehood, which, inter alia, implied that kosovo should have a constitution. as a result, as specified by the ahtisaari plan,34 the kosovan president appointed a multi-ethnic constitutional commission, responsible for composing and proposing a draft of the kosovan constitution.35 closely supervised by many international representatives, the work of the commission, reflected the international community’s concern – and perhaps even their desired outcomes – for the constitution.36 however, as marko argues, this process resulted in a lack of legitimacy, which, in turn, has forced the albanian political elites in kosovo to face a sharp drop in popular legitimacy.37 30 kostovicova d “legitimacy and international administration: the ahtisaari settlement for kosovo from a human security perspective” (2008) international peacekeeping vol 15 no 5: 631.647 (at 636). 31 for more about the kosovan state-building process, see kosovo’s fragile transition, international crisis group. europe report, no 196 september 25 2008. 32 kostovicova argues that ahtisaari plan has two main attributes: first, the plan delivers a communitarian and territorial approach; and second, the plan prescribes the supervision upon kosovo’s polity (kostovicova d “legitimacy and international administration: the ahtisaari settlement for kosovo from a human security perspective” (2008) international peacekeeping vol 15 no 5: 631–647). 33 tansey o kosovo “independence and tutelage” (2009) journal of democracy vol 20 no 2 153–166. 34 see the comprehensive proposal for the kosovo status settlement, february 26 2007, article 10. 35 decree of the kosovan president on the appointment of the kosovan constitutional commission, february 19 2008. accessed at (march 30 2010): http://www.kosovoconstitution.info/repository/docs/vendimi%20i%20presiden tit%20per%20kkk.pdf. 36 for more about the ethnic minorities’ representatives and international involvement in the kosovan constitution-making process, see: tunheim, j “rule of law and the kosovo constitution” (2009) min j int’l l 18 371. 37 marko j “the new kosovo constitution in a regional comparative perspective “(2008) review of central and east european law vol 33 437–450. calling the kosovo’s constitution: a legal review 56 following the proposal of the kosovan constitutional commission and the decree by kosovo’s president, the representatives of the kosovan people adopted the kosovan constitution on april 9, 2008. this acknowledged the international community’s constraints, made manifest in the constitution, upon kosovo’s polity. the kosovan constitution entered into force on june 15, 2008, when most of the powers of the unmik already had been transferred to the kosovan polity and the esdp mission in kosovo. kosovo’s constitution complemented the establishment of kosovo’s statehood by providing it with a domestic legal origin. moreover, the constitution not only established and/or recognized the international community’s constraints upon kosovo’s polity, it also recognized the international community’s civilian presence in kosovo. as such, the international civilian representative (icr) – who was also simultaneously the eusr – certified kosovo’s constitution as being in accordance with the comprehensive status proposal for kosovo (ahtisaari plan).38 hence, the global community, via this representation, acknowledged that the kosovan constitution followed both the spirit and the details of the ahtisaari settlement. in addition, the kosovan constitutionmaking process involved consulting with the citizens of kosovo, including ethnic minorities; as a consequence, many of the citizens’ suggestions were included in the constitution.39 in strict domestic terms, the constitution of kosovo provides a contested basis for a classic sovereign polity, given accepted limitations. still, the constitution delivers most of the statehood authorizations for the kosovan polity and promotes a legal order with a somewhat unique configuration. in that context, kosovo’s constitution, in one way or another, subsumes the kosovan legal system and declares superiority over the governing system of kosovo. therefore, the constitution of kosovo embeds a legal rationality into kosovo’s statehood, providing a legal basis for its functioning. kosovo’s constitution has many distinguishing features which might not be apparent in other ‘classic’ constitutions; however, these features are a product of the constrained sovereignty in kosovo demanded by the international community. given this context, one may then ask whether the constitution of kosovo is a ‘people’s constitution’. of course, a number of criticisms have been put forth which contest the legitimacy of the 38 press release of the constitutional commission of kosovo, in regard to peter faith’s decision on the certification of the kosovan constitution, april 2 2008. accessed at (march 25 2010): http://www.kushtetutakosoves.info/?cid=1,203,1316. see also the press statement, second meeting of the international steering group (isg) for kosovo, april 17 2008, paragraph 4, vienna. 39 press release of the constitutional commission of kosovo, regarding the “inclusion of citizens’ recommendations in kosovo’s constitution”, march 4 2008. accessed at (march 25 2010): http://www.kushtetutakosoves.info/?cid=1,203,1296. the denning law journal 57 constitution; nonetheless, it should be noted that the constitution has been adopted by the kosovan people’s representatives, despite the huge impositions made by the international community on both the constitution and the constitutional development process. the constitution consists of fourteen chapters and 154 articles, regulating both the formal and substantial matters of the state. most importantly, it proclaims the style of kosovo’s polity – its model of democracy and the basis upon which it functions. moreover, it establishes and determines the circles of competences of the assembly, the president, the government, and the judiciary. it also establishes a range of rights and liberties for kosovo’s citizens – in addition to the extra guarantees that it delivers for the ethnic minorities. the constitution positions the state in the direction as that of the ahtisaari plan, accepting the icr’s position in kosovo.40 ultimately, the constitution determines the procedure for constitutional amendment and outlines the mode of transition from the previous legal order to the new one. therefore, this paper, in addition to providing a general analysis of most of the matters mentioned above, reviews kosovo’s constitution in general. as such, it examines the proclamations delivered in the general provisions and then explores the governing system description within the constitution. following that, this paper focuses upon the rights and liberties section of the constitution with special attention to the constitutional guarantees for ethnic minorities. next, the study discusses the amendment procedure and the procedure’s legal and political consequences. finally, this paper reviews the position of the ahtisaari plan in relation to the constitution of kosovo and discusses the legal implications. this paper concludes with the argument that kosovo’s constitution contains a significant number of constitutional innovations that, in a classical sense, may not have been seen previously. this review contends that kosovo’s constitution provides a limited basis for a classic polity. general principles of kosovo’s constitution this section reviews the basic provisions of kosovo’s constitution (hereafter “constitution”), focusing on kosovo’s state principles. this part of the constitution, to achieve certain objectives, delivers both formal proclamations and substantial obligations for kosovo’s polity. this analysis begins with a survey of the constitution’s preamble. in its preamble, the constitution describes its aspirations and refers to the ‘enactor’ of the constitution. it opens with the famous phrase, “we, the people”, thereby acknowledging the people as the authors of the constitution. 40 the international civilian representative’s powers are prescribed by the ahtisaari plan. calling the kosovo’s constitution: a legal review 58 this statement illustrates the people’s determination to form a democratic and peace-loving state and proclaims kosovo as a state for all of its citizens.41 the preamble also represents a commitment to guarantee the rights and liberties of all citizens and to promote social prosperity. furthermore, the preamble proclaims the state of kosovo’s determination to promote stability in the region and to be one of the world’s peace-loving countries. finally, the preamble reveals kosovo’s intention to become a member of the euroatlantic organizations. as such, the preamble of kosovo’s constitution dedicates most of its proclamations to the ‘peaceful’ character of the state entity being legally and formally established by this constitution. the preamble does not refer to any historical event, unlike the constitutions of most other countries, and makes no indication of any ‘nationalistic pride’. hence, one may consider the preamble a step toward making the state of kosovo a nationalist-free country. there is no sign that the constitution is authored by a single ethnicity, as opposed to an ethnically pluralistic constitution; rather, the preamble refers to all of kosovo’s citizens as its authors, whatever their ethnic background. having surveyed the preamble, the basic provisions section of the constitution will be examined next. in the first provision, kosovo’s constitution proclaims that: “the republic of kosovo is an independent, sovereign, democratic, unique and indivisible state”.42 thus, the constitution proclaims kosovo’s independence and sovereignty. as a matter of such determinations, one may consider the constitution to be the domestic legal foundation of sovereignty. also within this provision, the constitution designates democracy as the governmental format for kosovo and describes kosovo’s territory as unique and indivisible. the territorial “uniqueness and indivisibility” function as complementing principles of sovereignty and statehood. as will be discussed in this paper, apart from these particular proclamations and determinations, kosovo’s statehood and sovereignty are neglected and/or constitutionally constrained. the constitution specifies, “the republic of kosovo is a state of its citizens. the republic of kosovo exercises its authority based on the respect for human rights and freedoms of its citizens and all other individuals within its borders”.43 this sentence constitutionally proclaims kosovo to be a citizens’ state – disregarding potential nation-state statehood, and sets forth the human rights dimension of the polity as a constitutional principle. 41 the european commission considers the kosovan constitution to be “a constitution of a high european standard.” see commission staff working document: kosovo under unscr1244/99 2008 progress report. commission of the european communities, sec (2008) 2697, brussels. 42 kosovo constitution 2008, article 1, para 1. 43 kosovo constitution 2008, article 1, para 2. the denning law journal 59 in light of this, one may argue that the constitution of kosovo establishes kosovo as a state of its citizens but not as a state of a single ethnic group. as such, as john rawls argues, “it is of a fundamental ideal of liberal democracy that all citizens should enjoy fully equal citizenship”.44 since the constitution shows no sign of privileging or recognizing any ethnic group, it both liberally governs and equally recognizes the citizens’ constitutional position; therefore the constitution provides a statehood that is legally bound to the kosovan citizens but not to any specific ethnic community. furthermore, following bernd rechel’s findings,45 as far as the human rights dimension of the polity is concerned, human rights in kosovo are important for a number of reasons. first, the importance of the proclamation of human rights in the constitution of kosovo stems from domestic factors: the historical legacies and domestic political crises in kosovo have made the protection of minority rights crucial for the existence of a multi-ethnic polity. in addition, the international community’s conditionality regarding kosovo’s statehood and the international community’s support for kosovo have been directly linked with kosovo’s respect for minority and human rights. hence, the latter facts have affected directly the constitution of kosovo’s design. however, as warbrick and mcgoldrick argue, the constitution attaches to itself the erga omnes duty to respect human rights and protect minorities. thus, as warbrick and mcgoldrick assert, the human rights dimension of the constitution of kosovo touches the exact concern of the countries that must recognize and accept kosovo’s statehood.46 hence, the human rights dimension of the constitution of kosovo reflects the both the domestic and international aspirations of kosovo. in this review, it is also important to discuss these provisions in the context of the montevideo convention. the constitution of kosovo refers to kosovo’s territory as an element of the state and defines the relationship of the people who live in that territory to kosovo’s statehood. in addition, the constitution highlights the polity’s aspiration to participate in international diplomatic relations. from that perspective, the constitution of kosovo indeed proclaims the concepts of kosovo’s state territory, population, sovereign government, and relations with other states and international organizations, as determined by article 1 of the montevideo convention on 44 rawls in conover p et al “the elusive ideal of equal citizenship: political theory and political psychology in the united states and great britain” (2004) the journal of politics vol 66 no 4 10–61. 45 rechel b introduction in rechel b ed minority rights in central and eastern europe. (new york: routledge, 2009). 46 warbrick c and mcgoldric, d kosovo “the declaration of independence” (2008) international and comparative law quarterly vol 57 675–690. calling the kosovo’s constitution: a legal review 60 the rights and duties of states.47 hence, one may argue that the constitution of kosovo prescribes, to the extent possible, the principles of the montevideo convention as a means of proclaiming statehood in a legal context. the subsequent constitutional provision declares that: “the republic of kosovo shall have no territorial claims against, and shall seek no union with, any state or part of any state”.48 thus, kosovo is constitutionally restrained from making a “territorial incursion” toward any nation that it could seize, and it should abstain from joining or seeking a union with any state. this is directly aimed at constitutionally prohibiting a potential ‘union’ of kosovo with albania – a real concern of the international community. using a ‘lincolnian’ approach, kosovo’s constitution proclaims that: “the sovereignty of the republic of kosovo stems from the people, belongs to the people and is exercised in compliance with the constitution through elected representatives, referendum and other forms in compliance with the provisions of this constitution”.49 thus, the constitution establishes the peoples’ sovereignty as the method of governance, thereby acknowledging three principles: first, that sovereignty stems from the people; second, that sovereignty is exercised on behalf of the people; and third, that sovereignty is exercised via the peoples’ representatives and/or referenda. to that extent, the constitution promotes ‘lincolnian democracy’. following that section, the constitution specifies that: “the sovereignty and territorial integrity of the republic of kosovo is intact, inalienable, indivisible and protected by all means provided in this constitution and the law”.50 here the constitution provides both a foundation and obligation for kosovo’s polity to protect its territorial integrity and sovereignty, meaning that external aggressions or internal secessions will be constitutionally fought. this is implicitly based on article 2(4) of the un charter, which asks states to refrain from actions that interfere with a state’s territorial integrity and political independence. in addition, the above provision complements article 2(7) of the un charter, which requires the united nations to refrain from intervening in domestic affairs, excluding the application of chapter vii of the un charter.51 in light of chapter vii, the esdp’s mission in kosovo could not be considered a breach to kosovo’s territorial integrity as prescribed in articles 2(4) and 2(7), given that the esdp’s mission in kosovo is derived 47 montevideo convention on the rights and duties of states 1993, article 1. 48 kosovo constitution 2008, article 1, para 3. 49 kosovo constitution 2008, article 2, para 1. 50 kosovo constitution 2008, article 2, para 2. 51 united nations charter, article 2, paras 4 & 7. the denning law journal 61 from chapter vii of the u.n. charter.52 furthermore, the constitution details kosovo’s capacity to become part of international security alliances.53 this could be interpreted as being motivated by kosovo’s intention to become a part of either nato or esdp, if integrated into the european union. on the other hand, although the constitution of kosovo legally establishes kosovo’s sovereignty, one may argue that, in the post-cold war world, no state can be sovereign without being recognized internationally. this might lead us to examine the number of states that have recognized kosovo;54 however, we will approach this question by further digging into the montevideo convention, which specifies the following: “…the political existence of the state is independent of recognition by the other states. even before recognition, the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interest, administer its services and to define the jurisdiction and competence of its courts”.55 after reviewing the proclamations in kosovo’s constitution and reading the excerpt from the montevideo convention, one may argue that the proclamations for a fully fledged sovereignty have logical complmentarity with the spirit of the montevideo convention. as such, the proclamations alone, as the montevideo convention proscribes, play a role in the existence of kosovo’s statehood. even though the constitution of kosovo proclaims the territorial indivisibility of kosovo, there are some territorial areas within kosovo that are not effectively governed by kosovo’s institutions. the northern mitrovica region of kosovo is one such case; it remains (as of this writing) outside of the constitution of kosovo’s authority.56 this has led to the conclusion that, although the constitution of kosovo provides a basis for indivisible territorial sovereignty, its relevance in practice remains unrealistic in some places. so far, this has been one of the most egregious violations of the constitution of 52 see a basic argument for this in: de wet e “the governance of kosovo: security council resolution 1244 and the establishment and functioning of eulex” (2009) american journal of international law vol 103 no 1 83–-96. 53 kosovo constitution 2008, article 2, paragraph 3. 54 sixty-five nations have recognized kosovo’s independence to date, although the independence has not been recognized by the united nations as a collective unit (see kosovo’s ministry of foreign affairs, states that have recognized kosovo. available at: http://www.mfa-ks.net/?page=1,33). 55 montevideo convention, article 3. 56 freedom in the world country report 2009, freedom house. available at: http://www.freedomhouse.org/template.cfm?page=22&country=7757&year=2009). calling the kosovo’s constitution: a legal review 62 kosovo. the lack of constitutional supremacy in those sections has been associated with not only criminal resistance but also total institutional failure and negligence.57 therefore, constitutional proclamations of territorial unity face enormous challenges in practice.58 one of the most important proclamations and/or determinations that kosovo’s constitution delivers relates to the principle of multi-ethnicity. as such, the constitution states that: “the republic of kosovo is a multi-ethnic society consisting of albanian and other communities, governed democratically with full respect for the rule of law through its legislative, executive and judicial institutions”.59 as a way of recognizing the equality of ethnic minorities’ positions with that of the albanian majority,60 the constitution establishes kosovo as a multi-ethnic state. in that context, the constitution does legally impose the multi-ethnicity principle as a basis for kosovo’s polity. it then follows that the constitution is, in that context, a multi-ethnic constitution, since the state that it legally produces is a multiethnic state, having dismissed the governing principle of rule by the majority. to that end, kosovo’s constitution offers relatively rich protections for ethnic minorities, guaranteeing an equal state for all of its citizens61 by disregarding the majority’s ethnic background as a constitutional principle. yet, although it is regarded as a principle, the constitution employs this principle in almost every aspect of kosovan institutional life, as will be discussed later. hence, as pond argues, this proclamation most substantially employs and consequently provides an over-proportional representation of minorities in institutional life, 57 commission staff working document: kosovo under unscr1244/99 2009 progress report. commission of the european communities, sec (2009) 1340, brussels. 58 for this reason, kosovo’s government and the ico have adopted a strategy for the northern mitrovica, which attempts to establish constitutional supremacy over the latter (radio free europe, kush eshte pjese e strategjise se veriut? radio free europe. available at: http://www.evropaelire.org/content/article/1931637.html). 59 kosovo constitution 2008, article 3, para 1. 60 according to the kosovan statistical institute, kosovo’s population is composed of: albanians – 92 percent, serbs – 5.3 serbs, turkish – 0.4%, roma – 1.1 %, and others – 1.2% (kosovan statistical office, report for ‘ndryshimet demografike te popullsise se kosoves ne periudhen 1948–2006’. series no 4: statistics of population. available at (april 15 2010): http://www.ksgov.net/esk/index.php?opinion=com_docman&task=cut_view&gid=8&itemid=8). 61 the citizenship regime produced by the kosovan constitution is argued to have an inclusive approach, meaning that multi-ethnicity is reflected in the design of kosovan citizenship. see: krasniqi g “the challenge of building an independent citizenship regime in a partially recognized state: the case of kosovo” (2010) citsee working papers series 2010 paper no 04 available at: http://www.law.ed.ac.uk/citsee/workingpapers. the denning law journal 63 creating a positive discrimination in favor of minorities which can be practically observed in the institutional context.62 in addition, the constitution determines that: “kosovo is a democratic republic based on the principle of separation of powers and the checks and balances among them as provided in this constitution”.63 hence, the constitution enacts the principle of the separation of powers: it establishes that the assembly shall exercise the law-making powers,64 the president shall represent the unity of the people,65 and the government shall execute the laws and policies.66 in this vein, the constitution establishes the judiciary as the law-controlling and interpreting body67 and the constitutional court as the final interpreter of the constitution.68 one may therefore argue that the separation of powers principle materializes through an institutional triangle consisting of the assembly, the government and president, and the judiciary, whereas the constitutional court should ultimately guard the overall constitutional order. this system of the separation of powers also enacts the principle of checks and balances; however, the proclamation of the principle of checks and balances could have no meaning if it does not materialize in the state itself. therefore, observation over time will indicate whether this principle has materialized substantially. the constitution’s section on basic provisions addresses another important issue – the official language. the constitution determines that: “the official languages in the republic of kosovo are albanian and serbian”,69 moreover, “turkish, bosnian and roma languages have the status of official languages at the municipal level or will be in official use at all levels as provided by law”.70 as a result, the constitution recognizes two official languages and authorizes other languages to be used officially at the municipal level. it is worth noting, however, that the kosovan population, as evidenced by kupchan, is made up of roughly 90 percent albanians—most of the rest is either serbian or another ethnic minority.71 as such, the 62 pond, e. “the eu’s test in kosovo” (2008) the washington quartely vol 31 no 4 97–112. 63 kosovo constitution 2008, article 4, para 1. 64 kosovo constitution 2008, article 4, para 2. 65 kosovo constitution 2008, article 4, para 3. 66 kosovo constitution 2008, article 4, para 4. 67 kosovo constitution 2008, article 4, para 5. 68 kosovo constitution 2008, article 4, para 6. 69 kosovo constitution 2008, article 5, para. 1. 70 kosovo constitution 2008, article 5, para. 2. 71 kupchan a c “independence for kosovo: yielding balkan reality” (2005) foreign affairs vol 82 no 6 14–20. calling the kosovo’s constitution: a legal review 64 constitution offers a well-grounded multi-ethnic logic of official languages,72 which contributes to the multi-ethnic nature of the state, given the importance of the use of language in the citizen-state relationship.73 in addition to the language, the constitution determines that kosovo’s state symbols should represent the multi-ethnic character of the state, thus disregarding singleethnic symbols for the polity.74 to this end, inter alia, the kosovan constitutional court has dismissed the emblem of the municipality of prizren, considering that, as determined by the constitution, it does not sufficiently represent all ethnic groups that live in the city.75 this has led to many public contestations;76 however, the international community has welcomed this decision, acknowledging that the kosovan constitutional court is adequately preserving the constitutional principle of multi-ethnicity.77 other important determinations that the constitution provides in the section on basic provisions include the proclamations for a market economy, the preservation of cultural heritage, freedom, peace, and others. one of the most important determinations that the constitution delivers concerns the constitution’s legal position. the constitution specifies that: “the constitution is the highest legal act of the republic of kosovo. laws and other legal acts shall be in accordance with this constitution”,78 [and that the] “the power to govern stems from the constitution”.79 to this extent, one may argue that the constitution is the highest [human] legal act of the polity, and no other legal norm can compete or override the constitution. as argued near the end of this paper, this proclamation conflicts with another provision of the constitution itself. still, one might argue that the principle of constitutional superiority is here at least proclaimed and determined. moreover, in this section the constitution establishes that the power to govern 72 for more, see lantschner e “protection of minority communities in kosovo: legally ahead for european standards – practically still a long way to go” (2008) review of central and east european law review vol 33 451–490. 73 this links directly to the standards of the european charter for regional or minority languages 1992, european treaty series no 148. council of europe. 74 kosovo constitution 2008, article 6 para 1. 75 case no ko01/09 qemajl kurtisi vs municipal assembly of prizren ref no agj07/10, constitutional court of kosovo, march 18 2010. 76 “kundershtohet vendimi i gjykates kushtetuese per emblemen e prizrenit”, kosova info (prishtine). available at (april 12 2010): http://www.kosova.info/2010/03/kundershtohet-vendimi-i-gjykates-kushtetuese-peremblemen-e-prizrenit/ (published on march 24 2010). 77 news release “ruling of constitutional court supports community rights—icr”. no 04/2010 of march 24 2010 available at (april 15 2010): http://www.kos.org/2/100319_cc_prizren_emblem_eng.pdf. 78 kosovo constitution 2008, article 16, para. 1. 79 kosovo constitution 2008, article 16, para. 2. the denning law journal 65 stems from the constitution only, establishing the constitution as both the source of and limit upon kosovo’s governance. having proclaimed and determined itself as the highest legal act, the constitution has, in fact, determined itself – as hans kelsen’s grundnorm, that is “the basic norm that constitutes the unity in the multitude of norms by representing the reason for the validity of all norms that belong to this order”.80 to this extent, the abovementioned provision of the constitution of kosovo imitates or creates the constitution as the grundnorm – or the peak – of kosovo’s legal system. still, this is only a proclamation, so the issue of whether the constitution can stand as a grundnorm needs to be more deeply analyzed. it is important to remember that the ahtisaari plan, a document in competition with the constitution, has also proclaimed itself as a basis for the constitution of kosovo, and, in doing so, the plan declares itself superior to the constitution. as a result, the position of the constitution of kosovo vis-à-vis the ahtisaari plan remains a contested matter, especially given the status settlement’s obligations undertaken by kosovo. however, although this issue is contested, the search for a grundnorm in the kosovan legal order continues to be indefinitely linked with the abovementioned proclamation of the constitution. the remaining elements of the constitution’s basic provisions section cover international agreements, the applicability of international law, and the delegation of sovereignty. to provide external sovereignty, the constitution authorizes the polity to enter into international legal instruments and to become part of international organizations.81 however, as of this writing, kosovo has been part of only two international organizations – the international monetary fund and the world bank.82 this potentially weakens kosovo’s international position. in contrast to the international organizations, the constitution provides that “ratified” parts of international law will – upon ratification by the parliament – become automatically part of the internal law of kosovo. this establishes a monist system of relations between domestic and international law,83 whereas, in practice, the constitution and the practical challenges to the latter have created dualist elements. still, some constitutional provisions remain relatively illogical in terms of the position that ratified parts of international law deliver vis-à-vis the kosovan legal 80 kelsen hans (1970) “the pure theory of law” translated by knight, max from reine rechtslehre (berkley: university of california press, 2nd edition, 1960) p 195. 81 kosovo constitution 2008, articles 17 & 18. 82 press release no 2009/658 “kosovo joins the imf and wb” united states department of state, bureau of public affairs. june 29 2009. 83 for more about the monist system, see: shaw m qc international law (cambridge: cambridge university press, sixth edn, 2009); and hillier t sourcebook on public international law. (london: cavendish publishing limited, 1998) calling the kosovo’s constitution: a legal review 66 system, and they complicate the position of constitutional norms amid the norms of the latter. ultimately, in the basic provisions section, the constitution authorizes state institutions to delegate state sovereignty to international organizations and establishes the procedure for doing so. that is, of course, an authorization for the polity vis-à-vis the european union integration process, given that direct constitutional powers are recognized to the polity so as to be able to delegate sovereign powers to the european union. having surveyed the basic provisions section of the constitution, the analysis moves on to an examination of its provisions for the governing system. kosovo’s top governing institutions the second part of the paper reviews the constitution’s provisions which establish and regulate the top governing institutions, or—in particular—the assembly, the government, the president, and the judiciary, including the constitutional court. although one may appreciate the constitution of kosovo for its standard of democracy, rule of law, separation of powers, and identification of human rights,84 a deeper review may indicate whether any of these principles have not been well-provided. as marko asserts, the relationship between the three branches of the polity suggests that the constitution of kosovo delivers a parliamentarian system of governance.85 however, the pufendorfian notion of sovereignty would not fit well with the powers articulated by the constitution. “to summarize pufendorf’s understanding, to legislate, to judge, to determine war and peace, to raise armies, to levy taxes, and to enforce the will decreed in the legislation is what it means to be sovereign”.86 hence, either the authorizations provided by the constitution are lacking or it does not actually authorize the polity to engage in wars, to raise armies, and to provide unrestrained legislation, which can be seen as a limit on what defines a pufendorfian-sovereign constitution. the examination begins with the constitutional provisions provided for the kosovan assembly. 84 kosovo (under unscr 1244) administrative legal framework, assessment of may 2009, sigma programme’s report for kosovo (financed by the oecd & eu). 85 marko j “the new kosovo constitution in a regional comparative perspective” (2008) review of central and east european law vol 33 437–450. 86 pufendorf cited at: dehart paul r uncovering constitution’s moral design. (columbia: university of missouri press, 2007) p 74. the denning law journal 67 assembly the constitution establishes that: “the assembly is the legislative institution of the republic of kosovo directly elected by the people”.87 this provision relates two specific things: first, that the assembly is the lawmaking body of the polity; and second, that the people directly elect the members of the assembly. in addition to the assembly’s power to make laws, the constitution assigns others, including the power to appoint and dismiss the government,88 the power to appoint and dismiss the president of republic,89 the power to ratify international agreements,90 the power to approve the budget of the state,91 the power to propose constitutional court judges,92 and others. thus, the constitution establishes the assembly not only as a law-making body, but also as a peoples’ representative body, capable of appointing and dismissing high-level officials for the governing institutions of the state. in this context – given that the assembly is the only people-elected body in the polity – its power to articulate the peoples’ sovereignty makes it the most legitimate body in the polity, as determined by the constitution. the constitution93 specifies that the assembly shall have 120 members, elected through a proportional system.,94 out of these 120 members, the constitution reserves twenty places for the representatives of minorities.95 this constitutional guarantee which reserves places for representatives of ethnic minorities ensures that no ethnic minority goes unrepresented in the assembly96 no matter the outcome of the popular vote. the guaranteed parliamentary seats for ethnic minorities ensure a multi-ethnic assembly, thereby excluding the possibility for majority overrule. according to the constitution, every ethnic minority which exists in kosovo’s territory shall 87 kosovo constitution 2008, article 63. 88 kosovo constitution 2008, article 65, para 8. 89 kosovo constitution 2008, article 65, para 7. 90 kosovo constitution 2008, article 65, para 4. 91 kosovo constitution 2008, article 65, para 5. 92 kosovo constitution 2008, article 65, para 11. 93 kosovo constitution 2008, article 64, para 1. 94 united states has appreciated the standard of the first elections held under the authority of the kosovan constitution. see: press release on “kosovo’s first elections since independence”. united states department of state. november 16, 2009. available at (april 11 2010): http://www.state.gov/r/pa/prs/ps/2009/nov/131994.htm. 95 kosovo constitution 2008, article 64, para 1 subpara 1 & 2. 96 currently, there are three parliamentary groups that belong to ethnic minorities in the kosovan assembly, with more than twenty members from the ethnic minorities’ communities. available from the assembly’s website: http://www.assemblykosova.org/?cid=2,192. calling the kosovo’s constitution: a legal review 68 have guaranteed seats in the assembly, with the serbian minority having the highest number of guaranteed seats (10).97 the constitution specifies that the assembly shall be chaired by a president,98 with at least two of the assembly’s deputy presidents coming from the ethnic minorities’ members. according to the constitution, the president and deputy-presidents of assembly shall be appointed on the basis of a relative majority, whereas their dismissal can take place only if a majority of two-thirds vote in the assembly.99 the members’ mandate, according to the constitution, is free, given that members “are representatives of the [whole] people [as opposed to a portion of constituency] and are not bound by any obligatory mandate”.100 that means that members have no constitutional obligation vis-à-vis their strict electorate – the members’ mandate is free and not linked with the electorate’s will. the constitution recognizes that the members have a representative mandate unconstrained by their electorate’s desires; hence, they represent the whole people of kosovo, despite from whence their votes derived. in addition, the constitution determines that once a kosovan is at least 18 years old, he/she is eligible to become a member. moreover, the composition of the assembly “shall respect internationally recognized principles of gender equality”.101 therefore, the constitution recognizes and establishes the gender balance principle in the assembly’s composition, meaning that, despite the popular vote, women shall take member positions at a certain percentage (i.e., onethird of the assembly should be composed of women, according to the electoral law of kosovo). as per the constitution, “a member of the assembly of kosovo shall neither keep any executive post in the public administration or in any publicly owned enterprise nor exercise any other executive function as provided by law”.102 this provides a clear division between the members of the assembly and the members of the government or other state institutions. also, members of the government cannot simultaneously hold the position of member of the assembly, so that those in the assembly voting to appoint the government will have clear relationships. 97 most of these, according to hughes, have been imposed by the international community through the ahtisaari settlement. see: hughes j “eu conflict management policy: comparing the security-development model in the ‘sui generis’ cases of northern ireland and kosovo”. paper presented at the european consortium for political research, september 10–12 2009, potsdam, germany. available at: http://eprints.lse.ac.uk/26061/. 98 kosovo constitution 2008, article 67, para. 2. 99 kosovo constitution 2008, article 67. 100 kosovo constitution 2008, article 70, para. 1. 101 kosovo constitution 2008, article 71, paras 1&2. 102 kosovo constitution 2008, article 72. the denning law journal 69 the members of the assembly are granted immunity “from prosecution, civil lawsuit and dismissal for actions or decisions that are within the scope of their responsibilities as deputies of the assembly. [however] the immunity shall not prevent the criminal prosecution of deputies of the assembly for actions taken outside of the scope of their responsibilities as deputies of the assembly”.103 therefore, although members have a limited immunity, the judiciary branch members cannot prosecute members of the assembly. this style of immunity is similar to that granted to representatives and senators in the united states congress. the constitution provides the assembly with the capacity to regulate its own procedural function through the adoption of an internal regulation. this requires the assent of at least two-thirds of the members.104, 105 furthermore, the constitution assigns to the assembly the power to establish permanent or ad hoc committees; investigative committees may be established at the request of at least one-third of members.106 the investigative committee requirements allow any opposition political party to request that an investigative committee be established, thus creating the possibility to wield formidable opposition parliamentary power. in a similar vein, the constitution determines that there shall be a permanent committee on the rights and interests of [ethnic] communities, which shall control the representation of ethnic communities’ interests in the law-making process. 107 one of the most important matters determined by the constitution is the legislative initiative. the constitution establishes that the initiative for adopting a law may “be taken by the president of the republic of kosovo from his/her scope of authority, the government, deputies of the assembly or at least ten thousand citizens as provided by law”.108 thus, a number of different actors may initiate the adoption of a law in the assembly. moreover, a legislative initiative could be initiated by any of kosovo’s ten-thousand citizens, which makes the assembly ‘open’ in terms of law initiatives. the constitution sets forth that laws are adopted at the assembly if the majority of members present vote in favor of the law. the law adopted by the assembly should be promulgated by the president of republic within eight days of its adoption. the president may use a suspensive veto against a law, 103 kosovo constitution 2008, article 75, para 1. 104 kosovo constitution 2008, article 76. 105 the current regulation has been adopted under the authority of the former constitutional framework, issued by unmik. see: assembly of kosovo “rules of procedure of the assembly of kosovo” approved on may 20 2005 and amended on june 1 2006. 106 kosovo constitution 2008, article 77. 107 kosovo constitution 2008, article 78. 108 kosovo constitution 2008, article 79. calling the kosovo’s constitution: a legal review 70 which sends it back to the assembly. the assembly can then override the president’s veto by using the same majority that it used for its adoption. if the law is adopted by the assembly a second time, then it is automatically promulgated, without the need for the president of republic’s signature. the entry into force of an adopted and promulgated law should take place fifteen days after the given law has been publicized in the official gazette of kosovo.109 the constitution makes a distinction between usual laws and vital interest laws. in that context, the constitution determines that a law of vital interest requires a double majority in the assembly for adoption. laws of vital interest can be adopted, amended, or abrogated only if the majority of the assembly, and majority of those holding guaranteed seats (i.e., reserved seats) in the assembly, vote in favour of it.110 this double-majority for laws of vital interest, as opposed to a common majority, makes the participation of ethnic minorities crucial in the adoption process of vital laws.111 if the vital interest law fails to garner a double-majority, this essentially constitutes an ethnicminority veto of any law that might constrain their interests. yet, as marko argues, this is not a one-ethnic-minority absolute veto and may not be used by one ethnic group only for blocking all of the others.112 ultimately, the constitution regulates the manner through which the assembly might be dissolved. it specifies that the assembly can be dissolved under three circumstances: first, when the government with a decreed prime minister cannot take the votes for appointment in the assembly; second, when the assembly fails to appoint the president of republic for a certain period of time; and third, when the members themselves require the dissolution.113 president and government president of the republic the constitution of kosovo provides a bi-cephalic executive branch, meaning that there shall be a president and a government headed by a prime minister. the constitution establishes that: “the president is the head of state 109 kosovo constitution 2008, article 80. 110 for more about the double majority procedure in the kosovan vital laws’ case, see: tansey o kosovo “independence and tutelage (2009) journal of democracy. vol 20 no 2 153–166. 111 kosovo constitution 2008, article 81, para 1. 112 marko j “the new kosovo constitution in a regional comparative perspective” (2008)review of central and east european law vol 33 437–450. 113 kosovo constitution 2008, article 82. the denning law journal 71 and represents the unity of the people of the republic of kosovo”.114 this fundamental power held by the president of the republic (hereafter, “president”) is formal, meaning that nothing substantial can be acquired by the president if he/she represents the unity of the people. the manner of appointment of the president required by the constitution leaves questions as to whether the president can be a true representative of the people’s unity remains to be. in addition, the constitution specifies that the president shall represent the state internally and externally,115 shall guarantee the constitution’s performance,116 shall promulgate laws adopted by the assembly,117 shall return laws to the assembly for reconsideration,118 shall sign international agreements,119 can propose amendments to the constitution,120 shall lead the foreign policy of the country,121 shall be the chief of kosovo’s security force (army),122 shall decree the candidate for prime minister from the party that has won the majority of seats in the assembly,123 shall appoint and dismiss judges and prosecutors upon the proposal of kosovo’s judicial council and kosovo’s prosecutorial council,124 shall appoint the commander of kosovo’s security force upon proposal of the government,125 shall appoint the governor of the central bank,126 shall appoint the chair of the electoral commission,127 shall appoint the ambassadors and the head of the intelligence service upon the proposal of the government, shall declare states of emergency,128 and so forth. prior to analyzing the president’s powers, one must understand how the constitution determines the election of the president. the constitution specifies that the president shall be appointed by the assembly via a twothirds vote of the whole assembly. “if a two thirds (2/3) majority is not reached by any candidate in the first two ballots, a third ballot takes place between the two candidates who received the highest number of votes in the 114 kosovo constitution 2008, article 83. 115 kosovo constitution 2008, article 84, para 1. 116 kosovo constitution 2008, article 84, para 2. 117 kosovo constitution 2008, article 84, para 5. 118 kosovo constitution 2008, article 84, para 6. 119 kosovo constitution 2008, article 84, para 7. 120 kosovo constitution 2008, article 84, para 8. 121 kosovo constitution 2008, article 84, para 10. 122 kosovo constitution 2008, article 84, para 12. 123 kosovo constitution 2008, article 84, para 14. 124 kosovo constitution 2008, article 84, paras 15-19. 125 kosovo constitution 2008, article 84, para 20. 126 kosovo constitution 2008, article 84, para 27. 127 kosovo constitution 2008, article 84, para 26. 128 kosovo constitution 2008, article 84, paras 21-30. calling the kosovo’s constitution: a legal review 72 second ballot, and the candidate who receives the majority of all deputies of the assembly shall be elected as president of the republic of kosovo”.129 as a result, the president is likely to be elected from a coalition of parties or from the party that holds the government (i.e., the one that has 50 percent plus one (1) members in the assembly).130 the president’s election will usually end in the third round of voting, given that the coalition of parties or the party holding the majority in the assembly will most likely require the seat of the president. as a result, president will likely be a political tool of the majority party (or coalition of parties) in the assembly; therefore, no political independency can be assumed to be delivered by the president per se.131 the underlying reasoning for powers of the president, especially those in the judiciary sphere, conflict with the manner of the presidential election specified in the constitution. it follows that one should not assume that the president’s position within the political context represents the unity of the people, given that the manner in which the president is elected preconditions a partisan president, rather than a non-partisan (i.e., comprehensive) one. still, the powers of the president granted by the constitution do make him or her a constitutionally powerful president. the constitution grants a mandate of five years for the president and allows reelection only once.132 moreover, it sets forth that the president, while in office, can exercise no partisan functions, meaning that the constitution prohibits the president from holding a partisan affiliation and/or position.133 despite this limitation, the current kosovan president holds both the position of president of the ldk party and the position of president of republic, having legally ‘frozen’ his position within the ldk.134 this is considered, however, a gap within the constitution itself; this contest has generated many clashes within the kosovan party politics.135 the constitution does not specify whether ‘freezing’ one’s position in one’s party, while continuing to hold it formally, is sufficient to make one eligible to hold the position of the 129 kosovo constitution 2008, article 86, para 5. 130 the current president comes from ldk, which is a part of the coalition of political parties that hold the government. see: platforma e sejdiut per ldk gazeta express available at (april 20 2010): http://www.gazetaexpress.com/web/index.php/artikujt/lexo/28976/c4/c13. 131 see, for instance: rikonfirmohet koalicioni ldk-pdk bbc in albanian available at (april 21 2010): http://www.bbc.co.uk/albanian/news/2009/11/091120_kos_partner.shtml. 132 kosovo constitution 2008, article 87. 133 kosovo constitution 2008, article 88. 134 kryetari “i ngrirë” cakton ministrat, koha net, available at (april 21 2010): http://www.kohaditore.com/index.php?cid=1,22,17097. 135 ditelindja e kushtetutes gazeta express available at (april 21 2010): http://www.gazetaexpress.com/web/index.php/artikujt/lexo/28316/c4/c13. the denning law journal 73 president of republic. nonetheless, many argue that the constitution prohibits a president of republic with double positions.136 this issue has not yet been ruled on by the constitutional court. the constitution has established a relatively complex procedure for dismissing the president: “if the president of the republic of kosovo has been convicted of a serious crime or if the assembly in compliance with this article determines that the president is unable to exercise her/his responsibilities due to serious illness, or if the constitutional court has determined that he/she has seriously violated the constitution, the assembly may dismiss the president by two-thirds (2/3) vote of all its deputies”.137 the constitution strongly protects the president’s mandate, and as such, it widely restricts the possibility for dismissal and allows the undertaking of the dismissal process only with two-thirds of the vote, as opposed to the majority of votes necessary for his or her election. government the constitution establishes that the government “consists of the prime minister, deputy prime minister (s) and ministers”,138 and its function is to “exercise the executive power”139 of the state, which consists of implementing the “laws and other acts adopted by the assembly of kosovo”.140 therefore, the government is the most powerful part of the executive branch. in particular, the constitution specifies that the government can propose and implement the internal and foreign policy of the polity,141 promote economic development,142 propose laws and issue sub-laws,143 propose the budget of the state,144 direct the public administration of the country,145 propose the appointment of ambassadors and other chiefs of independent institutions in 136 radio free europe, ‘kushtetuta nuk lejon poste te dyfishta’. available at (april 01 2010): http://www.evropaelire.org/content/article/1336999.html. 137 kosovo constitution 2008, article 89, para 3. 138 kosovo constitution 2008, article 92, para 1. 139 kosovo constitution 2008, article 92, para 2. 140 kosovo constitution 2008, article 92, para 3. 141 kosovo constitution 2008, article 93, para 1. 142 kosovo constitution 2008, article 93, para 2. 143 kosovo constitution 2008, article 93, paras 3 & 4. 144 kosovo constitution 2008, article 93, para 5. 145 kosovo constitution 2008, article 93, paras 6 & 7. calling the kosovo’s constitution: a legal review 74 kosovo, and other similar duties. the constitution determines that the government shall be headed by a prime minister, whose office shall have individual competences, as opposed to those of the government as a whole.146 moreover, the prime minister has the capacity to remove a minister of his/her government without the assent of the assembly.147 the prime minister’s position is relatively powerful as a matter of the constitutional arrangement, i.e., stronger than that of a primus-inter-partes prime minister. because of these stipulations, the prime minister shall head the government and be able to direct and demand accountability from his/her ministers. here, the constitution provides for a powerful prime minister, whose powers make him or her a proper chief of the government (or at least provide him or her with the option to become one). the constitution requires that the government be appointed by the assembly with a majority of votes. as a preliminary step, the president of the republic shall decree the prime minister from the party or coalition that has won the majority of seats in the assembly, whereas the prime minister shall compose the government and send it up for a vote in the assembly.148 yet: “…if the proposed composition of the government does not receive the necessary majority of votes, the president of the republic of kosovo appoints another candidate with the same procedure within ten (10) days. if the government is not elected for the second time, the president of the republic of kosovo announces elections, which shall be held not later than forty (40) days from the date of announcement”.149 as relates to the ministries, the constitution determines that the number of ministries and their functioning shall be regulated with an internal act of the government.150 it also determines that there must be a minimum of two ministers in any government representing ethnic communities,151 one of whom should come from the serbian minority.152 as such, the constitution offers a rich, ethnically plural government, given the obligation to include 146 kosovo constitution 2008, article 94. 147 kosovo constitution 2008, article 94, para 4. 148 kosovo constitution 2008, article 95, paras 1, 2 & 3. 149 kosovo constitution 2008, article 95, para 4. 150 kosovo constitution 2008, article 96, para 2. 151 three ministries are currently led by ethnic minorities’ representatives (two of them belong to the serbian community). see: new mandate, new opportunities, national democratic institute october 2008, prishtina. 152 kosovo constitution 2008, article 96, para 3. the denning law journal 75 ministers from the ethnic communities, exclusive from the votes in the assembly. in terms of responsibility, the constitution determines that the government shall be responsible to the assembly for its work. the responsibility can be required individually or collectively.153 thus, in order to forge an inflexible link between the people’s legitimacy and the executive branch, the constitution establishes a proper parliamentary-controlled government. it follows that one may consider this governing system to be purely parliamentarian. the constitution has bestowed the government and its members with immunity.154 in addition, it establishes that the dismissal of the government may be undertaken if a motion of non-confidence against the government passes successfully with a majority of votes of all members of assembly.155 overall, the constitution provides no special protection for the government from the assembly; however, the style of the governing system provides that the majority of the assembly functions as a tool of the prime minister or the government as a whole. thus, the assembly does not possess true control of the government, given the strict partisan linkage between the majority of members in the assembly and the holders of government positions. judiciary the constitution determines that the judicial branch of power shall be exercised by courts156 and provides that “judicial power is unique,157 independent, fair, apolitical and impartial and ensures equal access to the courts”.158 this constitutes a range of formal guarantees that the constitution delivers vis-à-vis the judiciary. to that end, the constitution establishes the judiciary an accurate interpreter and controller of the law. it guarantees the right to appeal first-level judicial decisions to a higher judicial level,159 thus 153 kosovo constitution 2008, article 97. 154 kosovo constitution 2008, article 98. 155 kosovo constitution 2008, article 100. 156 kosovo constitution 2008, article 102, para. 1. 157 currently, the justice system in the north of kosovo is dysfunctional, hence, in practice, it cannot be described as an indivisible justice system, as proclaimed by the constitution. see: probleme me funksionimin e gjykatave ne veri bbc in albanian available at (april 19 2010): http://www.bbc.co.uk/albanian/news/2010/03/100310_prishtina.shtml. 158 kosovo constitution 2008, article 102, para 2. 159 kosovo constitution 2008, article 102, para 5. calling the kosovo’s constitution: a legal review 76 acknowledging that the judicial system is based on the double-tier interpretation of law (ie, the principle of appellation). the constitution states that there shall be a supreme court, as the highest judicial institution, which shall ultimately judge whatever cases are raised. the supreme court shall have at least three judges who come from the ethnic communities. in addition, the terms of the supreme court judges shall last seven years and be elected by the president of kosovo upon the proposal of kosovo’s judicial council.160 the constitution requires that other courts in kosovo be established and regulated by law. the appointment of judges in all other courts in kosovo is decreed by the president upon the proposal of kosovo’s judicial council. furthermore, the constitution specifies that the “composition of the judiciary shall reflect the ethnic diversity of kosovo and internationally recognized principles of gender equality”.161 similarly, the constitution establishes that the “initial mandate for judges shall be three years… the reappointment mandate is permanent until the retirement age as determined by law or unless removed in accordance with law”.162 in addition, the constitution prohibits the establishment of extraordinary courts.163 the constitution establishes kosovo’s judicial council as an institution which guarantees the independent functioning of the judiciary. to that end, kosovo’s judicial council is composed of members who are appointed by the judiciary itself, by the assembly of kosovo, and in particular, by the members of assembly who hold reserved seats.164 in that context, kosovo’s judicial council is constitutionally independent vis-à-vis the executive and legislative branch. thus, the control over the judiciary’s performance has been preconditioned to be accurate. similarly, kosovo’s judicial council shall be able to make mandatory nominations of judges at all levels, propose mandatory dismissals of judges, and perform disciplinary measures upon judges if malpractice occurs.165 kosovo’s constitution authorizes the judicial council to develop rules for the functioning and organization of the judiciary, subordinate to the relevant laws. the constitution establishes the position of state prosecutor, which is “an independent institution with authority and responsibility for the prosecution of persons charged with committing criminal acts and other acts specified by law”.166 in addition, it establishes the prosecutorial council, an institution that 160 kosovo constitution 2008, article 103, paras 1–3. 161 kosovo constitution 2008, article 104, para 2. 162 kosovo constitution 2008, article 105, para 1. 163 kosovo constitution 2008, article 103, para 4. 164 kosovo constitution 2008, article 108. 165 kosovo constitution 2008, article 108. 166 kosovo constitution 2008, article 109, para 1. the denning law journal 77 is mandated to deliver nominations for prosecutors as well as proposals for dismissing prosecutors, and generally ensures that the functioning of the prosecutorial system is lawful and constitutional.167 overall, the constitution provides a relatively stable basis for the judiciary’s independence, largely ensured by the powers of kosovo’s judicial council. to that end, the constitutional protection of the judiciary’s independence is well equilibrated with the two other branches of governing system. however, the judiciary faces serious performance challenges,168 leading to potentially serious breaches in the constitution of kosovo’s prescription for a functional and independent judiciary.169 constitutional court the constitution empowers the constitutional court to adjudicate the constitutionality of laws and decisions. as such, the constitution establishes that: “the constitutional court is the final authority for the interpretation of the constitution and the compliance of laws with the constitution”.170 the constitutional court, therefore, essentially controls the application of the constitution and, as such, takes the necessary steps to enable its accurate application. in particular, the constitution authorizes the constitutional court to interpret the constitutionality of laws, governmental regulations, and decrees issued by the prime minister and the president.171 in addition, it has the jurisdiction to resolve conflicts of competences between the president of the republic, the assembly and the government, decide on the constitutionality of a proposed referendum, review the constitutionality of a declaration of a state of emergency and those actions undertaken during such a state, control the constitutionality of a proposed constitutional amendment with the binding international agreements, and control the constitutionality of elections for the assembly.172 moreover, the constitution assigns to the constitutional court the rights to control the constitutionality of municipal statutes and to judge any potential constitutional infringement caused by the president of republic.173 in all of these jurisdictions, only institutional actors 167 kosovo constitution 2008, article 110. 168 kosovo (under unscr 1244) administrative legal framework, assessment of may 2009, sigma programme’s report for kosovo (financed by oecd & eu). 169 state department’s human rights report for kosovo 2009, available at: http://www.state.gov/g/drl/rls/hrrpt/2009/eur/136039.htm. 170 kosovo constitution 2008, article 112, para 1. 171 kosovo constitution 2008, article 113, para 1. 172 kosovo constitution 2008, article 113, para 3. 173 kosovo constitution 2008, article 113, para 5. calling the kosovo’s constitution: a legal review 78 can initiate the procedure before the constitutional court; citizens are not authorized by the constitution to do so. one might ask whether the constitution allows individuals to raise questions and file appeals at the constitutional court. the constitution does allow individuals to raise questions of constitutional rights and abuses of freedoms in constitutional court, provided that all other judicial remedies have been exhausted.174 this is the only time when individuals can raise a question in the constitutional court; therefore, the constitution provides citizens a limited opportunity in which to question constitutionality at the constitutional court level. as such, this bias against the citizens may be considered a democratic deficiency, since an unconstitutional law, for example, cannot be challenged by individuals at the constitutional court. hence, the constitution, in this context, denies the public an opportunity to directly participate in challenging the unconstitutionality of an act. this raises the question of whether the constitutional court can ex officio exercise its jurisdiction, without the need for an appeal from an institutional actor or individual. the constitution provides no ex-officio powers for the constitutional court; therefore, the court’s authority, more or less, depends on institutional or individual requests. the constitution requires that the constitutional court have nine judges, appointed by the president of the republic upon the proposal of the assembly. seven of the judges are to be proposed by two-thirds of the assembly, with two judges to be elected by the majority of assembly after gaining the consent of the members holding reserved seats (minority members).175 the judges of the constitutional court shall have immunity,176 and their dismissal can take place only if two-thirds of its judges recommend the removal and the president of republic issues a decree concurring with their recommendation.177 in contrast to the appointment process of the court overall, the transitory provisions of the constitution require that, in the transitory period, three of the judges of the constitutional court not be kosovan citizens – instead, they are to be appointed by the international civilian representative upon consultation with the president of the european court of human rights.178 given the analysis above, the governing system installed by the constitution may be considered to be a purely parliamentarian system. as a consequence, the assembly remains the only route through which the people’s legitimacy may be employed; therefore, the assembly exercises both 174 kosovo constitution 2008, article 113, para 7. 175 kosovo constitution 2008, article 144. 176 kosovo constitution 2008, article 117. 177 kosovo constitution 2008, article 118. 178 kosovo constitution 2008, article 152. the denning law journal 79 the representation function and the law-making function. as such, the assembly has control over both the government and the president. the judiciary is free from this political control, so its independence remains relatively well-protected. in contrast, the president holds a wide range of powers—not commonly found in purely parliamentarian systems of governance; however, in practice, the president should be appointed by a parliamentarian majority which simultaneously holds the government. given this, the constitution’s authorizations for the president, and especially the powers that the president holds over the judiciary, make no sense in legal-rational terms, since a president who comes from the same parliamentarian majority that holds the government can offer the judiciary no protection. in that context, most of the powers of the president have no logic vis-à-vis the mode of appointing the president. therefore, the constitution makes it highly likely that the president and the assembly will be controlled by the coalition or the party in control of the government.179 in addition, given the president’s manner of appointment, no semi-presidential elements are apparent in the constitution. similarly, the only powerful obstacle which could be set forth against the government is parliamentary opposition—which can block some of the laws and form investigative commissions (from a constitutional point of view). taken as a whole, the constitution produces a purely parliamentarian governing system where the separation-of-powers principle is widely applied. the rights and liberties of citizens the constitution creates an environment rich with human rights and liberties.180 given the conflicts that appeared and persisted between albanians and serbs after the dissolution of the socialist federal republic of yugoslavia, it guarantees special protection instruments for ethnic minority citizens.181 however, in general, the constitution forms the basis for almost every right and liberty a citizen possesses.182 the constitution’s framers 179 for more on the importance of the political supervision of the assembly upon the government, see: national democratic institute for international affairs (2006) towards development of international standards for democratic legislature washington. 180 for a detailed human rights’ analysis at the municipal level, see: krasniqi, g “local policies in multiethnic communities” (2009) kipred’s civil dialogue working paper series. prishtina. 181 for more about the history of conflicts between albanians and serbs, see: malcolm n kosovo – a short history (london: macmillan, 1998). 182 it is worth looking at: state department’s human rights report for kosovo 2009 available at: http://www.state.gov/g/drl/rls/hrrpt/2009/eur/136039.htm. calling the kosovo’s constitution: a legal review 80 considered the human rights provisions to be a core responsibility of the new document. in addition, the ahtisaari plan had set forth its own human rights’ guarantees that later became accepted as constitutional elements. the constitution also delivers direct-applicability powers to a wide range of international legal instruments. thus, the constitution accepts and provides at least three sources of human rights guarantees: first, the constitutional guarantees of rights and liberties; second, the ahtisaari plan’s guarantees of rights and liberties; and third, the international legal instruments to which the constitution per se refers. these are reviewed in this section. kosovo’s constitution establishes that: “human rights and fundamental freedoms are indivisible, inalienable and inviolable and are the basis of the legal order of the republic of kosovo”.183 it then states that: “the republic of kosovo protects and guarantees human rights and fundamental freedoms as provided by this constitution”.184 in more substantial terms, the constitution guarantees the right to be equal before the law;185 the right to life;186 the right to personal integrity;187 the right to be protected from torture, cruel, inhuman, or degrading treatment;188 the prohibition of slavery and forced labor;189 the right to liberty and security;190 the rights of the accused;191 the right to fair and impartial trial;192 the right to legal remedies;193 the principle of legality and proportionality in criminal procedures;194 the right not to be tried twice for the same criminal act;195 the freedom of movement;196 the right to privacy;197 the right to marriage and family;198 the freedom of expression;199 and many other rights and liberties. although the constitution seems to enact a high standard when it comes to those rights and liberties which are guaranteed, the freedom house report 183 kosovo constitution 2008, article 21, para 1. 184 kosovo constitution 2008, article 21, para 2. 185 kosovo constitution 2008, article 24. 186 kosovo constitution 2008, article 25. 187 kosovo constitution 2008, article 26. 188 kosovo constitution 2008, article 27. 189 kosovo constitution 2008, article 28. 190 kosovo constitution 2008, article 29. 191 kosovo constitution 2008, article 30. 192 kosovo constitution 2008, article 31. 193 kosovo constitution 2008, article 32. 194 kosovo constitution 2008, article 33. 195 kosovo constitution 2008, article 34. 196 kosovo constitution 2008, article 35. 197 kosovo constitution 2008, article 36. 198 kosovo constitution 2008, article 37. 199 kosovo constitution 2008, article 40. the denning law journal 81 argues that the constitution200 limits the freedom of expression if the freedom concerned is used for fueling ethnic conflicts.201 this, however, may be negatively interpreted from a liberal human rights perspective and might contradict some of the international legal instruments on human rights. the second element of the constitutional protections of human rights consists of the international legal instruments of which the constitution recognizes their direct applicability in kosovo. as a result, kosovo accepts and employs the doctrine of incorporation, given that the instruments concerned automatically take effect in the domestic law.202 in light of that, the constitution states that: “human rights and fundamental freedoms guaranteed by the following international agreements and instruments are guaranteed by this constitution, are directly applicable in the republic of kosovo and, in the case of conflict, have priority over provisions of laws and other acts of public institutions: (1) universal declaration of human rights; (2) european convention for the protection of human rights and fundamental freedoms and its protocols; (3) international covenant on civil and political rights and its protocols; (4) council of europe framework convention for the protection of national minorities; (5) convention on the elimination of all forms of racial discrimination; (6) convention on the elimination of all forms of discrimination against women; (7) convention on the rights of children; (8) convention against torture and other cruel, inhumane or degrading treatment or punishment”.203 furthermore, the constitution declares, “human rights and fundamental freedoms guaranteed by this constitution shall be interpreted consistent with the court decisions of the european court of human rights”.204 along these 200 article 40, para. 2. 201 freedom in the world country report 2009, freedom house. available at: http://www.freedomhouse.org/template.cfm?page=22&country=7757&year=2009. 202 for more about the doctrine of incorporation, see: aust a handbook of international law new york: cambridge university press, 2005) 203 kosovo constitution 2008, article 22. 204 kosovo constitution 2008, article 53. calling the kosovo’s constitution: a legal review 82 same lines, the direct applicability of international legal instruments in kosovo provides a wide and rich environment for the guarantee and protection of rights and liberties. similarly, as seen in this list of applicable conventions and agreements, the european court of human rights’ case law is binding upon the kosovan courts’ jurisdiction – this leads to a judicial system that should be compulsorily referred to the comprehensive system of european human rights. overall, the constitution provides a wide range of rights and liberties and recognizes the direct applicability of many international legal instruments in kosovo’s legal system. in addition, the case law of the european court of human rights ‘europeanizes’ kosovo’s legal order, as a result of the constitution’s prescription. still, one totally illogical provision provided by the constitution specifies that: “fundamental rights and freedoms guaranteed by this constitution may only be limited by law”.205 with no rational basis for this, the authors consider it an unreasonable portion of the constitution. rights and privileges of ethnic communities the constitution provides special guarantees for the members of ethnic minorities. as such, it offers a special constitutional position, as opposed to a rule of majority governance, to those minorities, thereby making their participation in public life and constitutional protection privileged.206 the constitution declares that: “inhabitants belonging to the same national or ethnic, linguistic, or religious group traditionally present on the territory of the republic of kosovo (communities) shall have specific rights as set forth in this constitution in addition to the human rights and fundamental freedoms provided in chapter ii of this constitution207 . . . [and] every member of a community shall have the right to freely choose to be treated or not to be treated as such, and no discrimination shall result from this choice or from the exercise of the rights that are connected to that choice”.208 205 kosovo constitution 2008, article 55, para 1. 206 for more about the minorities’ special protection system, see: lantschner e “protection of minority communities in kosovo: legally ahead for european standards – practically still a long way to go” (2008) review of central and east european law review vol 33 451–490. 207 kosovo constitution 2008, article 57, para 1. 208 kosovo constitution 2008, article 57, para 2. the denning law journal 83 kosovo’s constitution determines the responsibility of the state vis-à-vis ethnic communities and guarantees cultural autonomy for the communities concerned.209 in addition, it creates a consultative council of communities, responsible for creating the institutional link between the ethnic minorities (represented in the council) and the institutional structures.210 in a similar way, the constitution guarantees that the “communities and their members shall be entitled to equitable representation in employment in public bodies and publicly owned enterprises at all levels”,211 meaning that a true representation of ethnic minorities in public institutions and services is constitutionally assured. however, given the serbs’ boycott of participating in the institutions and the existence of parallel serbian-government-funded institutions, these provisions are being challenged in practice; therefore, the guarantees concerned are, in many cases, rejected by the serbian minority in kosovo. this is most likely leading to a practical and/or political dismissal of the constitutional principle of multi-ethnicity by the serbs themselves.212 taken as a whole, one may consider the constitution to be a consociational constitution, given that the ethnic minorities’ constitutional position, both in the context of institutional representation and in that of rights and duties, is based on the consociational model of democracy213—as opposed to a majoritarian model of democracy. consociational democracy, according to its founder arend lijphart, is a model of governance that “makes plural societies more thoroughly plural. its approach is not to abolish or weaken segmental cleavages but to recognize them explicitly and to turn the segments into constructive elements of stable democracy”.214 therefore, overall, the constitution of kosovo creates a position for the minorities’ that is well protected, liberally recognized, and politically empowered. this supports the argument that the constitution is a consociational one, though hughes contests this claim by arguing that there is no longer a vibrant communitarian minority in kosovo that can take part in a fully functional consociational system of governance.215 209 kosovo constitution 2008, article 59. 210 kosovo constitution 2008, article 60. 211 kosovo constitution 2008, article 61. 212 tansey o “kosovo: independence and tutelage” (2009) journal of democracy vol 20 no 2 153–166. 213 this term is used to describe the arend lijphart theory of consociationalism. 214 lijphart a democracy in plural societies. a comparative exploration (new haven and london: yale university press, 1977) p 42. 215 hughes j “eu conflict management policy: comparing the security-development model in the sui generis cases of northern ireland and kosovo” (2009) paper presented at the european consortium for political research, 10-12 september 2009, potsdam, germany. available at: http://eprints.lse.ac.uk/26061/. calling the kosovo’s constitution: a legal review 84 kosovan constitution’s relationship to the ahtisaari plan the position of the constitution appears to be relatively subordinate to that of the ahtisaari plan.216 in regard to this issue, the constitution states: “the constitution, laws and other legal acts of the republic of kosovo shall be interpreted in compliance with the comprehensive proposal for kosovo’s status settlement dated 26 march 2007. if there are inconsistencies between the provisions of this constitution, laws or other legal acts of the republic of kosovo and the provisions of the said settlement, the latter shall prevail”.217 although the ahtisaari plan is thought to have legal authority over the constitution, however, one might still argue that the ahtisaari plan is legally empowered by the constitution itself, given that the united nations did not approve it. from that perspective, the constitution’s section recognizing its subordination to the ahtisaari plan could be amended, therefore leading to a constitution with no acknowledgment of the plan’s authority. yet, as hughes asserts, “the universal albanian view is that the ‘multi-ethnic’ framework will be removed by the kosovan government or will be superseded by a new constitution or legal framework within ‘a few years’, as the current system lacks ‘local ownership’, it seems inevitable that it will be superseded in due course”.218 constitutional amendment process the constitution of kosovo sets forth that the constitution’s amendment “shall require for its adoption the approval of two-thirds (2/3) of all deputies of the assembly, including two-thirds (2/3) of all deputies of the assembly holding reserved or guaranteed seats for representatives of communities that are not in the majority in the republic of kosovo.”219 therefore, the ethnic communities’ position in the constitutional amendment process is equal with 216 for the political consequences of this, see an extensive analysis in: kosovo’s fragile transition, international crisis group europe report n°196 september 25 2008. 217 kosovo constitution 2008, article 143, para 3. 218 hughes j “eu conflict management policy: comparing the security-development model in the sui generis cases of northern ireland and kosovo” (2009) paper presented at the european consortium for political research, 10–12 september 2009, potsdam, germany. available at: http://eprints.lse.ac.uk/26061/. 219 kosovo constitution 2008, article 144, para 2. the denning law journal 85 that of the majority. given this equality, the ethnic minorities’ members in the assembly can veto a constitutional amendment, thereby totally blocking it. this provision of the constitution has ensured that the constitutional guarantees for ethnic minorities cannot be altered unless the ethnic minorities themselves agree to it. as such, the constitution provides a rigid amendment process, leading to a rigid constitutional model. conclusion the paper has reviewed the most vital parts of kosovo’s constitution and, while reviewing each of its segments, has summarized the essential arguments. this paper reviewed the basic provisions of the constitution and examined the constitutional components provided for the top institutions of the polity, its citizens’ human rights and liberties, the ethnic communities’ special rights and liberties, and, finally, the constitutional amendment process as well as the relationship between the constitution and the ahtisaari plan. the most central segments of the constitution aim to ensure the participation of ethnic communities in public life, in part, by guaranteeing their rights and liberties. in addition, the ethnic communities’ involvement in public life is both institutionally and substantially guaranteed by the constitution. the constitution outlines a pure parliamentarian system of governance, wherein the assembly is the only body of the state elected by the people. this makes the assembly the only source of popular legitimacy in the whole governing system of kosovo. as a result, both the government and the president are appointed by the assembly and controlled—in one way or another—by it. nevertheless, as presented herein, the constitution shows no signs of making the assembly independent from the government; instead, it preconditions an assembly that is politically bound to the government, given that the coalition or party holding the government holds the absolute majority of seats in the assembly. admittedly, the judiciary’s independence is constitutionally well established, but no rationality for the president’s powers in that field could be found. one may conclude that the constitution provides three bases of protecting human rights and liberties: that of the constitution per se, that of the ahtisaari plan, and that of international legal instruments which have direct applicability in kosovo, as a matter of the constitution’s sanctioning. in conclusion, kosovo’s constitution exists as a consociational constitution, one that builds a system of governance dedicated to the protection of minorities vis-à-vis the majority’s rule. ultimately, the constitution is subordinate to the ahtisaari plan; this calls into question ‘constitutional supremacy’ and leads to an innovative form of sovereignty. in time and in place the double edge of occupation and protection 145 denning law journal 2010 vol 22 pp 145-171 current commentary the european court of human rights – universalist aspirations of protection in the middle of the edge of occupation susan s m edwards∗ introduction this current commentary considers the case of al-saadoon and mufdhi v the united kingdom1 (a recent decision of the european court of human rights (ecthr)) and the issues upon which it turns. it raises the question of whether an occupying force has an obligation to protect the human rights of those under occupation. the inherent tensions, conflicts, contradictions, and limits posed in and by such a question are obvious. the occupying force – the uk – in this case constituted itself as part of the multi-national force (mnf) and invaded iraq in 2003. the invasion and occupation was subsequently held to be illegitimate.2 the question of whether iraqi citizens have a right to protection under any international convention or treaty or any human rights instrument is a question of considerable importance and was the question so ∗professor and dean of law, university of buckingham, barrister, door tenant, clarendon chambers, 1 plowden buildings, temple, london. 1 al-saadoon and mufdhi v the united kingdom (application no. 61498/08) judgement 2 march 2010). 2 the war on iraq was opposed by many nato members and the so called “operation iraqi freedom” was not conducted by nato. the illegitimacy of the action of the us and the uk and the duplicity of its leaders with the fantastic subterfuge and lies that accompanied this particular ‘jihad’ has been eloquently analysed by philippe sands in his book lawless world (penguin: london 2006). see also kofi annan, who in september 2004, publicly stated that the war on iraq was illegal. in november 2004, the senior policy advisor to the prime minister acknowledged: “we allowed our judgement of the dire consequences of inaction to override our judgement of the even more dire consequences of parting from the rule of law” see s wall, the independent november 9th 2004 p 31. see also elizabeth wilmhurst’s resignation on 18th march: “i regret i cannot agree that it is lawful to use force....”. current commentary 146 considered, in the case of al-saadoon and mufdhi, in the case of al-skeini,3 and whether british forces were so protected was considered in r (smith) v secretary of state for defence,4 to which i shall refer later. viewed by western democratic governments as repugnant (a view enshrined as a principle in the laws that bind them) and outlawed by art 1 protocol 13 to the european convention on human rights (echr), the death penalty is the very starting point and paramount consideration for the european court of human rights (ecthr) in the case of al-saadoon and mufdhi.5 this and other rights, including the right to be free from inhuman and degrading treatment (article 3), and the right to a fair trial (article 6), are revered, protected, and regarded as emblematic of the rule of law which is proclaimed and cherished by western democracies. the foreign policy of western democracies, especially its incursions and foraging into other territories, is presented by western governments through the lens of the will to liberate, to civilise and to deliver the rule of law. the human rights protected by the echr enshrine an inalienable code of conduct which the uk government wishes to export to non-democratic societies and to the developing world. it is this very objective and humanitarian purpose – the export of human rights – which the uk government has proclaimed provides one of the key justifications for uk foreign policy in the invasion of iraq.6 indeed, using human rights to sell war7 perhaps characterises the position of the uk and the us with regard to the invasion of iraq. it is perhaps worth noting, at this point, the words of george orwell: “in our time, political speech and writing are largely the defence of the indefensible. things like the continuance of british rule in india, the russian purges and deportations, the dropping of atom bombs on japan, can indeed be defended, but only by arguments which are too brutal for most people to face, and which do not square with the professed aims of political parties. thus political language has to consist largely of euphemism, question-begging and sheer cloudy vagueness... when there is a gap between one’s real and one’s 3 r (on the application of al-skeini and others) v secretary of state for defence [2007] ukhl 26, [2007] 3 all er 685. 4 r (smith) v secretary of state for defence jun 10[2010] uksc 29. 5 see above n 3 para 115. 6 n chomsky power and terror (london: palgrave macmillan, 2003) p 37: “every time blair or bush or clinton or madeleine albright or someone calls for war on iraq, they always say it the same way. they say, [t]his is the worst monster in history. how can we allow him to exist? he even committed the ultimate crime: he used gas “against his own people.” how can such a person exist?” 7 j bricmont humanitarian imperialism: using human rights to sell war (new york monthly review press, 2007). the denning law journal 147 declared aims, one turns as it were instinctively to log words and exhausted idioms...political language – and with variations this is true of all political parties, from conservatives to anarchists – is designed to make lies sound truthful and murder respectable...”8 it is also significant that the war on iraq was presented by the uk and the usa as a quest and mission to assist the national liberation struggle.9 at the same time as these hallowed reasons for the invasion of iraq, stephen poole in his critique reveals how language is instrumental in masking the truth.10 whilst philippe sands qc unmasks the reality.11 the urgent question which this current commentary considers is whether iraqi citizens, who are alleged to have been involved in the deaths of two british soldiers during the occupation of iraq by british and american forces (the mnf)12 – the al-saadoon case – are entitled to protection and basic human rights, inter alia, the rights enshrined in the echr. this is considered alongside two further questions, the first is whether iraqi civilians killed by the british forces are entitled to echr protection – the al-skeini case, and the second is whether british soldiers on active service outside the uk are entitled to the protection of the echr – the smith case. such a question is considered within the existing framework of legal principles of international law, and international criminal justice but it is as much a moral question as it is a legal one. 8 g orwell “politics and the english language” george orwell: essays (london: penguin, 2000) pp 348-360. see also s poole unspeak (london little brown, 2006) p 5. 9 bush euphemistically called the invasion of iraq “operation iraqi freedom”. see also, g stedman jones “the history of us imperialism” in r blackburn (ed) ideology in social science (london fontana, 1976): “many illusions about the historical development of the united states derive from a failure to appreciate its underlying continuity. the non-territorial nature of us imperialism during some important periods obscured this fact and allowed many historians to represent the united states as a champion of national liberation.” p 207. 10 see poole above n 8. 11 see sands above n 2 especially chapter 8 entitled “kicking ass in iraq.” 12 the multi-national force – iraq (mnf-i) was led by the us, it was a military command which claimed to be responsible for “operation iraqi freedom”. the objectives, were expressed in june 2004 in an annex to unscr 1546, in which u.s. secretary of state powell in a letter to the un security council, stated, “the mnf under unified command is prepared to continue to contribute to the maintenance of security in iraq, including by preventing and deterring terrorism and protecting the territory of iraq. the goal of the mnf will be to help the iraqi people to complete the political transition and will permit the united nations and the international community to work to facilitate iraq’s reconstruction.” http://en.wikipedia.org/wiki/operation_iraqi_freedom current commentary 148 the invasion of iraq “on 20 march 2003 a coalition of armed forces, the ‘mnf’, led by the united states of america with a large force from the united kingdom and smaller contingents from australia and poland, commenced the invasion of iraq.13 ...the united states and the united kingdom thereafter became occupying powers within the meaning of section iii of the hague regulations on the laws and customs of war on land, 1949 and the fourth geneva convention on the protection of civilians in time of war, 1949.”14 the british government’s proclaimed reasons for the invasion of iraq were that (1) saddam hussein was developing “weapons of mass destruction”, (2) there was a need both to promote democracy in iraq and (3) to challenge saddam hussein’s human rights record. in claiming to bring human rights to iraq, the occupiers, inevitably, set themselves up as champions of human rights protection with the consequence that, because of their own high grounded claims and promises, their human rights example in iraq was up for scrutiny and examination, both legally and morally. this invasion which some would argue is a demonstration of human rights imperialism is an aspect to which i shall return later. the deaths of british soldiers and the iraqi suspects on, or about, march 23rd 2003, staff sergeant simon cullingworth and sapper luke allsopp, two british soldiers serving in iraq, were abducted and killed by iraqi militia forces. faisal attiyah nassar khalaf al-saadoon and khalef hussain mufdhi were suspected of involvement in the killings. from 2003 to december 2008 al-saadoon and mufdhi and former senior officials of the ba’ath party were detained pending investigation and trial in a british run detention facility – the “divisional temporary detention facility” – and from april 20th 2008 until december 2008 they were detained in the “divisional internment facility” again, under british detention. following the iraqi council of ministers’ resolution (50/2008 of 23 december 2008), all occupying forces were to withdraw from iraq no later than july 31 2009. from 2003 to st may 21st 2006 the british authorities classified al-saadoon and mufdhi as “security internees” on the basis of resolution 1546, and after may 21st 2006 and until december 31st 2008, reclassified them as “criminal 13 fourth section case of al-saadoon and mufdhi v the united kingdom (application no. 61498/08 judgement 2 march 2010. para [10]. 14 fourth section case of al-saadoon and mufdhi v the united kingdom (application no. 61498/08 judgement 2 march 2010. para [11]. the denning law journal 149 detainees”. on december 27th, 2007, the iraqi authorities (the iraq high tribunal (iht))15 formally requested the british forces to transfer them into its custody and from this moment they were detained by british forces at the ‘behest’ of the iraqi government. the applicants, did not wish for this transfer from british into iraqi custody because, since iraq had reintroduced the death penalty in 2004, they feared they would be executed following an order from an iraqi court, if they were found guilty of any involvement with the killings. represented by public interest lawyers,16 al-saadoon and mufdhi on june 12th 2008, issued judicial review proceedings in the uk, challenging the legality of the proposed transfer. their application raised important legal matters of uk jurisdiction in iraq as to (1) whether the uk, as one of the occupying forces, had an obligation and duty to ensure that iraqi citizens were protected by law, and (2) whether the law of the echr extended to them. their application for judicial review was refused. they appealed this decision to the court of appeal on 29th, 30th december 2008, and january 21st 2009. the court of appeal was required to consider whether the two men, whose status was first as persons arrested by british forces in iraq having been suspected originally of orchestrating violence against the coalition forces and detained as security internees before being reclassified as criminal detainees and then placed under the authority of an iraqi court, were persons who were eligible for the protection under the echr. the court of appeal concluded that the uk government were under no such obligation to afford the men protection under the echr since they had been transferred into the control of the iraq authorities. following this decision, the british government defied the strasbourg injunction issued on december 30th 2008, which prohibited the transfer of the two men until further notice, under rule 39 of the rules of court,17 and in breach of this injunction transferred the applicants into the control of the iraqi government.18 15 in 2003, a special court–the iraq domestic tribunal–was established in iraq to hear crimes committed by the previous regime and was created by a national statute from the interim governing council. in 2005, it was ratified and renamed as the iraq high tribunal by the iraqi transitional national assembly. its statute provides jurisdiction for certain international crimes committed by iraqi’s during the ba’athist regime – july 1968 to may 2003. 16 pil – “public interest lawyers is a leading public law firm specialising in domestic and international human rights and environmental and planning law. in recent years we have brought on behalf of our clients many of the seminal judicial review cases in these areas.” http://www.publicinterestlawyers.co.uk/cases/cases.php?id=126 17 rule 39 (interim measures) “1. the chamber or, where appropriate, its president may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the http://web.archive.org/web/20071013130404/www.iraq-iht.org/en/staute.html current commentary 150 their lawyers lodged an appeal from the decision of the court of appeal to the ecthr challenging the legality of the transfer from british into iraqi custody and the resulting abrogation of convention rights with regard to their suffering as a result of their uncertain status prior to trial and their fear of execution which was a real possibility, if not a certainty, should they be found guilty at trial or on appeal. on may 26th 2009, al-saadoon and mufdhi faced trial in an iraqi court (iht)19 for their alleged involvement in the killing of the two british soldiers. prosecution witnesses recanted their original statements, and in september of that year20 charges against them were dismissed on grounds of insufficient evidence. the court said however that they had not been found innocent and could be retried within 12 months should evidence be found against them. the prosecutors appealed and the two men were then further remanded in custody pending an appeal hearing. in may 2010, the ecthr, in reversing the decision of the court of appeal, found that the applicants did indeed fall within the jurisdiction of the echr because they were in the custody of the british forces at the relevant time – the time of their arrest: and once arrested they were then entitled to protection throughout the duration of the judicial process, and were “at real risk of being subjected to an unfair trial followed by execution by hanging” interests of the parties or of the proper conduct of the proceedings before it. 2. notice of these measures shall be given to the committee of ministers. 3. the chamber may request information from the parties on any matter connected with the implementation of any interim measure it has indicated”. see court européenne des droits de l’homme. european court of human rights, rules of court (july 2009) registry of the court, strasbourg. 18 public interest lawyer, phil shiner said in response to the ecthr ruling in march 2010, with regard to the uk’s breach of the original injunction of the ecthr not to transfer the two men, “it is a national disgrace that our government, in breach of an injunction by the european court, was prepared to hand our clients to the iraqi authorities when they knew full well that they faced the real risk of being executed by hanging,” (morning star march 3rd 2010). it is to be noted also that this is the first time the uk government has acted in breach of an injunction issued by the european court. phil shiner went on, “it beggars belief that a labour government should act in such flagrant disregard for the rule of law and to have put two fingers up to the european court in the process." he went even further and accused the mod of a “vindictive” and “flagrant disregard for the rule of law”, arguing that this case is “about fundamental principles – the right to life and the prohibition of torture.” 19 upi newstrack top news may 26th 2009. 20 defence minister, bob ainsworth took the view that the government had taken the right course of action and said, “we had been put in an extraordinary position with this injunction. they were effectively asking us to do something illegal. we have no legal powers to hold these individuals. it is the right decision that they face trial in iraq where these crimes were committed.” (the independent january 1st 2009). the denning law journal 151 and had been “subjected to mental suffering caused by the fear of execution amounting to inhuman treatment” whilst in detention. let us consider in some detail the jurisprudence and reasoning of the british courts and the jurisprudence and reasoning of the ecthr on these overarching questions. british courts and a narrow vision of jurisdiction the divisional court the case of al-saadoon and mufdhi first came before a british court with regard to challenging, via a judicial review, the decision to transfer them into iraqi control on june 12th 2008. the divisional court (richards lj and silber j), in giving judgement on december 19th 2008,21 concluded that their proposed transfer into iraqi control was indeed lawful. the applicants claimed that a transfer into iraqi custody would place them, if convicted, as i have already pointed out, under risk of execution by hanging, and that this would violate not only their rights under the echr but also would be contrary to the free-standing principles of public international law condemning the death penalty. on the jurisdictional question, the divisional court concluded that there was no real risk of them being treated in any way contrary to international norms and that therefore, there was no justification for the uk not to transfer them. in fact, they went further and concluded that international law positively required them to transfer the applicants into the custody of the iraqi court. in arriving at this conclusion they applied the test in r (b) v secretary of state for foreign and commonwealth affairs which held: “that the authorities of the receiving state can require surrender of a fugitive in respect of whom they wish to exercise the authority that arises from territorial jurisdiction.”22 they also considered munaf v geren,23 a decision of the us supreme court, which raised a similar question in respect of us jurisdiction. in adopting a restrictive and archaic view of jurisdiction, the supreme court said: “the habeas petitioners do not dispute that they voluntarily traveled to iraq, that they remain detained within the sovereign territory of iraq 21 [2008] ewhc 3098 (admin), [2008] all er (d) 246 (dec). 22 [2008] ewhc 3098 (admin), [2008] all er (d) 246 (dec) para [69]. 23[2008] ewhc 3098 (admin), [2008] all er (d) 246 (dec) para [23]. see also supreme court of the united states syllabus munaf et al v geren, secretary of the army, et al. certiorari to the united states court of appeals for the district of columbia circuit no 06–1666. argued march 25th 2008 – decided june 12th 2008* http://www.lexisnexis.com/uk/legal/search/runremotelink.do?langcountry=gb&linkinfo=f%23gb%23ewhcadmin%23year%252008%25page%253098%25sel1%252008%25&risb=21_t9270260920&bct=a&service=citation&a=0.8043491094192422 http://www.lexisnexis.com/uk/legal/search/runremotelink.do?langcountry=gb&linkinfo=f%23gb%23allerd%23sel2%2512%25year%252008%25page%25246%25sel1%252008%25vol%2512%25&risb=21_t9270260920&bct=a&service=citation&a=0.043709324597926646 http://www.lexisnexis.com/uk/legal/search/runremotelink.do?langcountry=gb&linkinfo=f%23gb%23ewhcadmin%23year%252008%25page%253098%25sel1%252008%25&risb=21_t9270260920&bct=a&service=citation&a=0.8043491094192422 http://www.lexisnexis.com/uk/legal/search/runremotelink.do?langcountry=gb&linkinfo=f%23gb%23allerd%23sel2%2512%25year%252008%25page%25246%25sel1%252008%25vol%2512%25&risb=21_t9270260920&bct=a&service=citation&a=0.043709324597926646 http://www.lexisnexis.com/uk/legal/search/runremotelink.do?langcountry=gb&linkinfo=f%23gb%23ewhcadmin%23year%252008%25page%253098%25sel1%252008%25&risb=21_t9270260920&bct=a&service=citation&a=0.8043491094192422 http://www.lexisnexis.com/uk/legal/search/runremotelink.do?langcountry=gb&linkinfo=f%23gb%23allerd%23sel2%2512%25year%252008%25page%25246%25sel1%252008%25vol%2512%25&risb=21_t9270260920&bct=a&service=citation&a=0.043709324597926646 current commentary 152 today, or that they are alleged to have committed serious crimes in iraq. indeed, omar and munaf both concede that, if they were not in mnf–i custody, iraq would be free to arrest and prosecute them under iraqi law. further, munaf is the subject of ongoing iraqi criminal proceedings and omar would be but for the present injunction. given these facts, iraq has a sovereign right to prosecute them for crimes committed on its soil, even if its criminal process does not come with all the rights guaranteed by the constitution, see neely v. henkel, 180 u. s. 109, 123. as chief justice marshall explained nearly two centuries ago, “[t]he jurisdiction of the nation within its own territory is necessarily exclusive and absolute.” schooner exchange v. mcfaddon, 7 cranch 116, 136. this court has twice applied that principle in rejecting claims that the constitution precludes the executive from transferring a prisoner to a foreign country for prosecution in an allegedly unconstitutional trial. wilson, supra, at 529–530; neely, supra, at 112–113, 122.” on the fair trial point, the divisional court concluded that there was no risk that they would not receive a fair trial (article 6 echr) and said, “the evidence before us falls a long way short of establishing substantial grounds for believing there to be a real risk that a trial of the claimants would involve a “flagrant breach” of the principles guaranteed by article 6. thus, even if the convention were to apply in the normal way, we would reject the claim that transfer of the claimants into the custody of the iht would be contrary to article 6.”24 (i will return to discuss the threshold of “flagrant breach” later). in concluding that the proposed transfer would be lawful the court did say: “whilst we have been led to that conclusion by our analysis of the legal principles and the factual evidence, we are seriously troubled by the result, since on our assessment the claimants, if transferred, will face a real risk of the death penalty in the event that they are convicted by the iraqi court. in all normal circumstances the convention (as well as the extradition act 2003 in extradition cases) would operate to prevent such a result. it arises here only because of the highly exceptional circumstances of the case and the application to them of the principles in r (b) v. secretary of state for foreign and 24 [2008] ewhc 3098 (admin), [2008] all er (d) 246 (dec). cited in the ehcr judgement al-saadoon and another v united kingdom (app no 61498/08) [2010] at para [59]. http://www.lexisnexis.com/uk/legal/search/runremotelink.do?langcountry=gb&linkinfo=f%23gb%23ewhcadmin%23year%252008%25page%253098%25sel1%252008%25&risb=21_t9270260920&bct=a&service=citation&a=0.8043491094192422 http://www.lexisnexis.com/uk/legal/search/runremotelink.do?langcountry=gb&linkinfo=f%23gb%23allerd%23sel2%2512%25year%252008%25page%25246%25sel1%252008%25vol%2512%25&risb=21_t9270260920&bct=a&service=citation&a=0.043709324597926646 the denning law journal 153 commonwealth affairs, as we have understood the judgement of the court of appeal in that case....” 25 the divisional court, in their reasoning however, drew a distinction between the case of al-saadoon and al-skeini26 and said that in the al-skeini case the echr jurisdiction applied because no sovereign government existed in iraq at the time of the killing of baha mousa by british forces, whereas in the case of al-saadoon there was indeed a government in office in 2008, the time deemed by the court to be the relevant time. let us then turn to the facts of al-skeini27 which is a test case brought by the families of six victims, from a very much larger number of claims. the question of the ambit of echr protection was considered by the house of lords, (lord bingham of cornhill, lord rodger of earlsferry, baroness hale of richmond, lord carswell and lord brown of eaton-under-heywood). in this case, five iraqi citizens were shot by british troops in the streets or in their homes in basra, which the uk occupied. hazim jum’aa gatteh al-skeini was attending a funeral and was shot dead by a british soldier on august 4th 2003. hannan mahaibas saeed shmailawi was with her husband and family at the institute of education in basra when the building was fired on by british forces. she was shot dead. muhammad abdul ridha salim was at his brother-in-law’s house when a soldier fired a rifle into his stomach causing his death. waleed fayayi muzban was driving home from work when british soldiers fired at him from behind causing his death. raid hadi sabir al musawia, in his role as a policemen, was taking a box of “suggestions and complaints” to a judge’s house, when he was shot dead by a british patrol. the house of lords considered all these five victims to be “outside the jurisdiction” for the purposes of article 1 of the convention confirming what had previously been 25 [2008] all er (d) 246 (dec)*r (on the application of al-saadoon and another) v secretary of state for defence [2008] ewhc 3098 (admin) para [204]. cited in the ehcr judgement, ibid, at para [62]. 26 r (on the application of al-skeini and others) v secretary of state for defence [2007] ukhl 26 [2007] 3 all er 685. 27 [2008] 1 ac 153 (per lord bingham of cornhill) “my lords, ... these proceedings arise from the deaths of six iraqi civilians, and the brutal maltreatment of one of them causing his death, in basra. each of the deceased was killed (or, in one case, is said to have been killed) and the maltreatment was inflicted by a member or members of the british armed forces. in each case a close relative of the deceased has applied in the high court in london for an order of judicial review against the secretary of state for defence, seeking to challenge his refusal (by a letter of 26 march 2004) to order an independent enquiry into the circumstances of this maltreatment and these deaths, and his rejection of liability to afford the claimants redress for causing them. these six cases have been selected as test cases from a much larger number of claims in order, at this stage, to resolve certain important and far-reaching issues of legal principle.” current commentary 154 held by the divisional court and also confirmed on appeal. a sixth person, baha mousa, who was captured and later tortured and killed in a uk military detention facility was however considered to be “within the jurisdiction” for the purposes of article 1, since he had been killed by british troops when he was held as a prisoner in a british military detention unit. this was also the view of the divisional court and the court of appeal. lord brown of eatonunder-heywood, in the house of lords said: “… i for my part would recognise the uk's jurisdiction over mr mousa only on the narrow basis found established by the divisional court, essentially by analogy with the extraterritorial exception made for embassies (an analogy recognised too in hess v united kingdom (1975) 2 dr 72, a commission decision in the context of a foreign prison which had itself referred to the embassy x v federal republic of germany).”28 although, lord bingham in the house of lords said: “i would accordingly hold that the 1998 act has no extra-territorial application. a claim under the act will not lie against the secretary of state based on acts or omissions of british forces outside the united kingdom. this does not mean that members of the british armed forces serving abroad are free to murder, rape and pillage with impunity. they are triable and punishable for any crimes they commit under the three service discipline acts already mentioned...”29 the interpretation of “territory” and the obligations of the occupying force in al-skeini, was of such overriding importance as a matter of principle that interrights submitted a third party intervention jointly with the bar human rights committee, the european human rights advocacy centre, human rights watch, the international federation for human rights, the law society, and liberty. their intervention focused on the issue of the extraterritorial application of human rights law, especially the application of the european convention on human rights. the interveners argued that a narrow interpretation of “jurisdiction” would create double standards and observed: “during the 1930’s and 40’s appalling human rights abuses were carried out across europe by military forces within occupied 28 ibid at para 132. 29 ibid lord bingham of cornhill para 26 at 704. the denning law journal 155 territories. it is inconceivable in this context that the drafters of the convention, amongst whom were such notables as pierre-henri teitgen who had been captured and tortured by the forces of the belligerent occupier of france, should have considered that the prospective responsibilities of states under the convention should be confined to the violations of human rights perpetrated only within their own territories. such an approach would have meant that states could be held accountable for buchenwald, but not for auschwitz, and not for the extraterritorial reprisals and atrocities carried out by the occupying forces that took place in eg poland, ukraine, czechoslovakia, greece, the netherlands or france.”30 having considered the al-skeini judgement, the divisional court in alsaadoon concluded that a decision, therefore, not to meet the request of the iraqi government, and to defy the request to transfer the two men into iraqi custody could be regarded as an interference with iraq’s sovereign government.31 in considering the question of whether a situation falls within the jurisdiction of a state for the purposes of article 1,32 the house of lords in alskeini held that the national court should be guided by the decision of the strasbourg court in bankovic v belgium.33 in that case, which considered the territoriality of nato forces in yugoslavia, the court held that only in exceptional cases could acts of the contracting states outside their territories constitute an exercise of jurisdiction by them within the meaning of article 1 of the convention.34 although bankovic does not set out with any clarity what an exception might be, the divisional court nevertheless followed this approach and deemed al-saadoon not to be sufficient of an exception.35 although it is to be noted that the bankovic decision has been held in some circles to be flawed.36 in al-skeini (with regard to the deceased victim baha mousa) the house of lords held that article 6 of the echr applies to a 30 interrights submission in al-skeini see http://www.interights.org/al-skeini 31 ibid, [2008] ewhc 3098 (admin), [2008] all er (d) 246 (dec) at para [67]. 32 article 1 “the high contracting parties shall secure to everyone within their jurisdiction the rights and freedoms defined in section i of this convention” as per echr. 33 bankovic v belgium (application 52207/99) (2001) 11 bhrc 435. 34 see for a critique of the restrictive interpretation of territory in this case k altiparmak “bankovic: an obstacle to the application of the european convention on human rights in iraq”? journal of conflict and security law 2004 9 (213). 35 see the relevant case law on this point, loizidou v turkey (preliminary objections) (1995) 20 ehrr 99, soering v uk [1989] echr 14038/88. 36 see altiparmak above n 33. http://www.lexisnexis.com/uk/legal/search/runremotelink.do?langcountry=gb&linkinfo=f%23gb%23ewhcadmin%23year%252008%25page%253098%25sel1%252008%25&risb=21_t9270260920&bct=a&service=citation&a=0.8043491094192422 http://www.lexisnexis.com/uk/legal/search/runremotelink.do?langcountry=gb&linkinfo=f%23gb%23allerd%23sel2%2512%25year%252008%25page%25246%25sel1%252008%25vol%2512%25&risb=21_t9270260920&bct=a&service=citation&a=0.043709324597926646 http://www.lexisnexis.com/uk/legal/search/runremotelink.do?langcountry=gb&linkinfo=f%23gb%23bhrc%23sel2%2511%25year%252001%25page%25435%25sel1%252001%25vol%2511%25&risb=21_t9481933805&bct=a&service=citation&a=0.9925676920515918 http://www.lexisnexis.com/uk/legal/search/runremotelink.do?langcountry=gb&linkinfo=f%23gb%23echr%23sel2%2588%25year%251989%25page%2514038%25sel1%251989%25vol%2588%25&risb=21_t9481933805&bct=a&service=citation&a=0.05671811125298165 current commentary 156 public authority acting outside the territory of the united kingdom but within the jurisdiction of the united kingdom, within the meaning of article 1 of the convention. article 1 provides that contracting states shall secure to everyone “within their jurisdiction” the rights and freedoms defined in the convention. the divisional court in al-saadoon relied on the finding of the divisional court in al-skeini which was also approved by the house of lords in alskeini: “it is not at all straining the examples of extraterritorial jurisdiction discussed in the jurisprudence considered above to hold that a british military prison, operating in iraq with the consent of the iraqi sovereign authorities, and containing arrested suspects, falls within even a narrowly limited exception exemplified by embassies, consulates, vessels and aircraft, and in hess v united kingdom 2 dr 72, a prison” and that “[w]e can see no reason in international law considerations, nor in principle, why in such circumstances the united kingdom should not be answerable to a complaint, otherwise admissible, brought under articles 2 and/or 3 of the convention.”37 court of appeal – jurisdiction in basra? “manifestly absurd” the applicants, al-saadoon and mufdhi, then appealed the decision of the divisional court, to uphold the ruling of the iht, to the court of appeal.38 before waller, laws and jacob ljj, their lawyers contended that if the two men were transferred into iraqi custody there were substantial grounds for believing that if they were convicted, they would face a real risk of execution by hanging.39 in reply to the submission, advanced on their behalf, that execution by hanging was generally condemned by the law of nations, the court of appeal said that: “no freestanding rule of regional customary international law of non-refoulement by european states to third countries where the death penalty might be carried out existed.”40 on the territoriality question, the applicants argued that since they had been detained by the british forces in iraq they fell within the jurisdiction of the united kingdom for the purposes of the convention. they argued that an international law question arose with regard to a principle of regional 37 [2008] all er (d) 246 (dec)*r (on the application of al-saadoon and another) v secretary of state for defence [2008] ewhc 3098 (admin) at para [40] citing the divisional court in al-skeini with reference to baha mousa [2007] qb 140, para 287. 38 r (on the application of al-saadoon and another) v secretary of state for defence [2009] ewca civ 7. 39 see ibid [22], [73], [74] above. 40 ibid para [3], [63]. http://www.lexisnexis.com/uk/legal/search/runremotelink.do?langcountry=gb&linkinfo=f%23gb%23qb%23year%252007%25page%25140%25sel1%252007%25&risb=21_t9481933805&bct=a&service=citation&a=0.2452260782019765 the denning law journal 157 customary law, with regard to whether hanging was regarded as a crime against humanity and/or inhuman or degrading treatment. on the jurisdictional question, the court of appeal upheld the decision of the divisional court, and, although using rather more elaborate and diffuse language, said that whilst having no “sharp edge” jurisdiction was a concept and reality derived from “strategic rather than lexical thinking.”41 the court of appeal said that the scope of the echr was “the ‘espace juridique’ of the states parties”42 thereby endorsing the so-called ‘espace juridique’ principle.43 in considering, in the words of laws lj, “whether the echr writ runs, so to speak, to the british base in basra,”44 the court of appeal concluded that it did not! in essence, what this means is that the construct of jurisdiction relies on a conservative model of territory conceived as an organic enterprise, and in this regard the court of appeal appealed to an understanding of “natural setting.” laws lj went further and asserted that the argument that the echr had any ambit in basra was “manifestly absurd”. as he pointed out: “the essentially regional nature of the convention is relevant to the way that the court operates. it has judges elected from all the contracting states, not from anywhere else. the judges purport to interpret and apply the various rights in the convention in accordance with what they conceive to be developments in prevailing attitudes in the contracting states. this is obvious from the court's jurisprudence on such matters as the death penalty, sex discrimination, homosexuality and transsexuals. the result is a body of law which may reflect the values of the contracting states, but which most certainly does not reflect those in many other parts of the world. so the idea that the united kingdom was obliged to secure observance of all the rights and freedoms as interpreted by the european court in the utterly different society of southern iraq is manifestly absurd.”45 the court of appeal followed established law where standards and principles have already been diluted in respect of some applicants and not 41 ibid para [37]. 42 ibid para [39]. 43 see r wilde, “the ‘legal space’ or ‘espace juridique’ of the european convention on human rights: is it relevant to extraterritorial state action”? european human rights law review (2005) 10, 2 115-124. see also “the british military in iraq applicability of the espace juridique doctrine” [2005] pl 448, s miller “revisiting extraterritorial jurisdiction: a territorial justification for extraterritorial...” european journal of international law (2009) 20 1223-1246. 44 ibid para [15]. 45 ibid para [78]. current commentary 158 others. for example, on the question of “real risk” of hanging, the court of appeal queried whether “real risk” was actually the test applicable in “so called foreign cases,” accepting that in such cases the extent of the risk had to be not merely “real” but “flagrant,”46 albeit concluding however, that the standard of proof is that of real risk.47 such a distinction between the extent of the risk required and its threshold of “flagrant”, with a standard of proof at the threshold of “real risk” is difficult if not impossible to articulate, comprehend, or divine, creating a parallel standard for human rights in so called foreign cases. the approach of the british courts to the jurisdictional question, in my view, can only be said to be “making the world a safer place for hypocrisy.”48 immediately following the decision of the court of appeal, the european court issued an injunction to prohibit the transfer, notwithstanding, the two men were handed over to the iraqi authorities. their legal team asserted with some dismay, “they were transferred despite the court injunction, the lack of evidence against them, the unpredictable and highly political nature of the iht proceedings and the very real risk that a death sentence would be imposed.”49 human rights imperialism laws lj, in invoking a novel concept, went on to say that interference of the kind desired by the applicants would put the court in a position which “would run the risk not only of colliding with the jurisdiction of other human 46 it is to be observed that protection and justice as applied to foreign nationals, ‘foreign cases’, so called, and in this case to occupied peoples, demonstrates two tiers of human rights as practiced. for example, in considering a decision to deport from the uk, the uk courts must consider whether any person deported will face the risk of torture or inhuman treatment, or an unfair trial. the acid test with regard to their rights under article 3 of the european convention on human rights is that deportation will expose them to a “real risk” of torture or inhuman treatment. with regard to fair trial under article 6, the litmus test is that there is a real possibility that trial in another country will be a “flagrant breach” or a real risk of a “total denial of the right to a fair trial.” these higher bars of real risk of torture (article 3) and total denial of fair trial (article 6) were upheld in the house of lords decision in the case of mr. othman (abu qatada, february 18th 2009 rb (algeria) v secretary of state for the home department; u (algeria) v secretary of state for the home department; othman v secretary of state for the home department [2009] ukhl 10, [2009] 4 all er 1045). 47 ibid para [16]. 48 t wolfe look homeward angel 1920 (london: penguin edition 1990). 49 http://www.publicinterestlawyers.co.uk/cases/cases.php?id=126 accessed july 2nd 2010. http://www.publicinterestlawyers.co.uk/cases/cases.php?id=126 the denning law journal 159 rights bodies but of being accused of human rights imperialism.”50 with the greatest respect, i cannot agree with laws lj. human rights organisations widely and broadly were concerned that the men would face the death penalty and given the fact of their broad and wide involvement and concern rather than collision, they appeared united. indeed, the many human rights groups that joined the case as interveners is a testament to the very broad support these men and/or the principles involved in their case secured. of course there is a problem of human rights imperialism, but it is not an issue in my view with respect to the right to protection of al-saadoon and mufdhi from the death penalty. human rights imperialism, certainly characterises the invasion of iraq by foreign powers. human rights imperialism is evident for example, in the way in which claims to universalist principles are hollow since the human rights instruments, are drafted largely by the west, and therefore are characterised by ‘ethnocentricism’ or ‘anthropocentricism’ on the one hand and, by ‘orientalism’ or ‘cultural imperialism’51 on the other. perhaps this problem and limitation is best articulated by sardar, who writes: “there is, …nothing ‘natural’ about human rights … just as democracy is a cynical ploy for post modernising the non-west, human rights too have become an instrument for promoting the western agenda…. the western liberal notion of human rights, which is the basis for the un declaration of human rights, reduces the issue of the rights of human beings simply to preserving the civil liberties of individuals and provides a moral high ground for these rights to be imposed, by coercion if necessary, on all nonwestern and by definition illiberal, people.”52 ethnocentricism or anthropocentricism characterises the way in which human rights reflect western values53 (and the way in which the west becomes the template for the world. said in culture and imperialism,54 argues that the british, french and american imperial experience had a unique cultural centrality creating what he calls a “totalizing discourse.”55 it is this “totalising discourse” which is demonstrated in the invasion and 50 ibid para [78] 51 d l donoho, “relativism versus universalism in human rights: the search for meaningful standards” 27 stan.j.international l. 345,353 (1991). 52 z sadar postmodernism and the other (london: pluto, 1998) p 67. 53 j a m copbbah “african values and the human rights debate: an african perspective” 9 human rights quarterley 309 (1987). 54 e said culture and imperialism (london: vintage, 1994) p xxv. 55 ibid xxvii. current commentary 160 occupation of iraq. such “civilising” projects resonate of the crusaders jihad against saledin.56 samir amin calls this contemporary “project” an expression of “eurocentricism.”57 these narratives masquerade as high theory and define the constructs of human rights, which, as pollis and schwab write: “(is) a twentieth-century concept … embedded in the united nations (which) can be traced to the particular experiences of england, france and the united states…. thus to argue that human rights has a standing which is universal in character is to contradict historical reality. what ought to be admitted by those who argue universality is that human rights as a western concept based on natural right should become the standard upon which all nations ought to agree, recognising, however, that this is only our particular value system.”58 but it is not, in my view eurocentric or ethnocentric to resist the imposition of the death penalty wherever it lurks in the world. european court of human rights the will to do justice on december 22nd 2008, an application (no. 61498/08), against the united kingdom of great britain and northern ireland was made which alleged that the detention and transfer of al-saadoon and mufdhi gave rise to violations of their rights under articles 2, 3, 6, 13 and 34 of the convention and article 1 of protocol no. 13. on december 30th 2008, the acting president of the section granted the applicants request, under rule 39 of the rules of court, for an interim measure. in spite of this, on december 31st the two men were transferred into iraqi custody. on february 17th 2009, their case was given priority under rule 41.59 on march 20th 2009 the equality and human rights commission was granted leave to intervene as a third party.60 also granted leave to intervene on march 25th 2009, were the bar human rights committee of england and wales, british irish rights watch, the european 56 t ali the book of saledin islam quintet 2 (london: verso, 1999). 57 s amin eurocentricism (london: zed press, 1989) p 106. 58 a pollis and p schwab (eds) human rights: cultural and ideological perspectives (new york: praeger publishers inc, 1980) p 4. cited in s poulter ethnicity, law and human rights (oxford: clarenden, 1990) p 109. 59 rule 41 requests for priority pursuant to rule 41 of the rules of court of the european court of human rights. 60 article 36 § 2 of the convention and rule 44 § 2. the denning law journal 161 human rights advocacy centre, human rights watch, the international commission of jurists, the international federation for human rights, justice, liberty and redress (otherwise referred to as “the group of interveners”). on june 30th 2009, the applicants case was heard before l. garlicki, president, and judges sir nicolas bratza, g. bonello, l. mijovic; j. sikuta, m. poalelungi and n. vucinic.61 on february 2nd 2010, having deliberated in private, the court delivered its judgement. the judges took as their starting point (protocol no 13),62 which states that convicted persons have a right not to be subjected to the death penalty and they pointed out that this right enshrines one of the basic values of democratic societies. they went on to say that the principles underlying the convention cannot be interpreted and applied in a vacuum, therein very much embracing a “living instrument” approach to the convention.63 in taking at the centre a fundamental objection to the death penalty they held, “it is not open to a contracting state to enter into an agreement with another state which conflicts with its obligations under the convention.”64 and, therefore took the view that any agreement to transfer the men, with its attendant consequences for the men, would conflict with convention obligations. they then went on to say that such a principle “carries all the more force in the present case given the absolute and fundamental nature of the right not to be subjected to the death penalty and the grave and irreversible harm risked by the applicants.”65 on the question of the transfer of the men into iraqi custody the ecthr said this: “the majority of the chamber have found the government's noncompliance with the rule 39 indication to be unjustified on two principal grounds. it is said that there was no ‘objective impediment’ to compliance with the interim measures since the absence on 31 december 2008 of any available course of action consistent with respect for iraqi sovereignty other than the transfer of the applicants was of the respondent state’s own making. secondly, it is said that the government have not satisfied the court that they took all reasonable steps, or indeed any steps, to seek to comply with the rule 39 indication, not having informed the court of any attempt to explain the situation to the iraqi authorities or to reach a temporary solution 61 fourth section case of al-saadoon and mufdhi v the united kingdom (application no 61498/08 judgement 2 march 2010. 62 ibid para [118]. 63 ibid para [126]. 64 ibid para [138]. 65 ibid. current commentary 162 which would have safeguarded the applicants’ rights until the court had completed its examination.”66 in approaching this question the ecthr considered the obligations of the echr as prospective and forward looking and not fixed in one moment in time or place, very much looking to the end of the justicial process. they said this: “the court considers that the respondent state was under a paramount obligation to ensure that the arrest and detention did not end in a manner which would breach the applicants’ rights under articles 2 and 3 of the convention and article 1 of protocol no. 13.”67 the ecthr concluded: “[143] in summary, therefore, the court considers that, in the absence of any such binding assurance, the referral of the applicants’ cases to the iraqi courts and their physical transfer to the custody of the iraqi authorities failed to take proper account of the united kingdom’s obligations under articles 2 and 3 of the convention and article 1 of protocol no. 13 since, throughout the period in question, there were substantial grounds for believing that the applicants would face a real risk of being sentenced to death and executed.[144] the outcome of the applicants’ case before the iht is currently uncertain. while the applicants remain at real risk of execution since their case has been remitted for reinvestigation, it cannot at the present time be predicted whether or not they will be retried on charges carrying the death penalty, convicted, sentenced to death and executed. whatever the eventual result, however, it is the case that through the actions and inaction of the united kingdom authorities the applicants have been subjected, since at least may 2006, to the fear of execution by the iraqi authorities. the court has held above that causing the applicants psychological suffering of this nature and degree constituted inhuman treatment. it follows that there has been a violation of article 3 of the convention.”... [171]. in the present case, the court has found that through the actions and inaction of the united kingdom authorities the applicants have been subjected to mental suffering caused by the fear of execution amounting to inhuman treatment within the meaning of article 3. while the outcome of the proceedings before the iht remains uncertain, that suffering continues. for the court, compliance with their obligations under article 3 of the convention requires the government to seek to put an end to the applicants’ suffering as soon 66 ibid: partly dissenting opinion of judge bratza at para [13], although he said that he was not convinced by either of these two arguments at para [14]. 67 ibid para [140]. the denning law journal 163 as possible, by taking all possible steps to obtain an assurance from the iraqi authorities that they will not be subjected to the death penalty.”68 altiparmak in 2004, in his critique of bankovic has said, “the iraqi war might require the ecrthr to revisit this 'jurisdiction' definition” that “there should not be a shadow of doubt that pows and civilians under british custody in iraq fall within the jurisdiction of the united kingdom” and “the ecthr will have to redefine 'jurisdiction' if it receives an application from someone detained by british forces.”69 the question is has it done so? the war on iraq has indeed provided the ecthr with the opportunity to revise its position on the application of the echr in military invasions. what did the ecthr in al-saadoon have to say on jurisdiction? somewhat surprisingly perhaps, the court said nothing new on jurisdiction in fact it completely sidestepped the issue focusing exclusively on the echr obligations. in fact the ecthr, has, in the words of miller,70 “failed clearly to articulate when and why signatory states’ extraterritorial actions can be brought within the jurisdiction of the european convention.” the court said: “[155] this was, indeed, an exceptional case. if it was correct that the relevant acts fell within the jurisdiction of the united kingdom, the case was by definition 'exceptional' in terms of the extraterritorial application of the convention (see banković, cited above, para 74). further, the exceptional nature of the case derived specifically from the fact that the united kingdom was acting or being required to act outside its own territory....[162] as stated above, the court's approach in interpreting the convention must be guided by the fact that its object and purpose as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective.” judge bratza, in dissent, however did have something to say on the jurisdiction question and adopted a mechanistic approach to jurisdiction which followed in the the spirit of the british courts. he said: “while i in no way question these general principles laid down in the court’s case-law, i am not persuaded that they have any direct application to the special circumstances of the present case, where the two applicants were held by a 68 ibid para [143][144][171]. 69 see altiparmak above n 34. 70 s miller “revisiting extraterritorial jurisdiction: a territorial justification for extraterritorial jurisdiction under the european convention” european journal of international law 2010 20 4 1223-1246. current commentary 164 contingent of a multinational force on foreign sovereign territory, whose mandate to remain on that territory had expired and who had no continuing power or authority to detain or remove from the territory nationals of the foreign sovereign state concerned. it is these considerations which have led me to dissent from the majority of the chamber in their finding that there have also been violations of articles 13 and 34 of the convention.”71 washing our hands of jurisdiction the plight of al-saadoon and mufdhi seemed of limited interest (at least at the time of writing) to the world’s press either on the jurisdiction point or on the human rights point. the independent newspaper in the english language press and sections of the arabic press72 were however concerned with the long term detention of these men, the conditions of their detention, the potential abuse of their human rights, and the wider question of jurisdiction in the modern post-colonial73 age. it has been an erstwhile principle of law that everyone has the right to representation and the protection of the law, a right enshrined in article 6 of the convention. and in this regard, it is of significance that a formidable group of human rights lawyers and activists joined this case as interveners, because of the fundamental issues and rule of law upon which this case turned. however, the applicant’s right to legal representation out of uk legal aid funds was vociferously challenged.74 but, it is to be remembered, as henry brougham put it: “an advocate, by the sacred duty which he owes his client, knows in the discharge of that office but one person in the world, that client and none other. to save that client by all expedient means – to protect that client at all hazards and cost to all others, including himself, is the highest and most unquestioned of his duties; and he must not regard the alarm, the suffering, the torment, the destruction which he may bring upon any other. he must go on, reckless of the consequences... 71 see above n 61. partly dissenting opinion of judge bratza at para [9]. 72 website of ismail alwan al tamimi. 73 i use this term not to suggest that colonialism is over but that we have entered a new colonialist era. 74 patrick mercer, mp said: “it seems totally wrong to me that these men are being given legal aid. would we have given legal aid to nazis who committed war crimes in the second world war – of course not – this is arrant nonsense” s rayment, and b leach the telegraph, november 15th 2008. the denning law journal 165 even if his fate it should unhappily be, to involve his country in confusion for his client’s protection.”75 the fundamental question at stake was whether these men were entitled to the protection of the echr, especially, the right if convicted not to be executed, and whilst in detention to be free from inhuman and degrading treatment, and to receive a fair trial. dancing on the head of the pin of “jurisdiction” allowed both the court of first instance and the court of appeal, albeit with troubled minds, to wash their hands of the protection of these two men, by concluding that they fell outside the jurisdiction of the echr, and were therefore simply not our concern. in addition, applying an organic notion of territory allowed a retreat into a conservative model of “natural territory” which disregarded and stripped bare the complexity of the context in which this case was framed and fixed. this reification excluded the reality and context of the occupation and invasion by a foreign power. such invasions are becoming an increasing tendency in the new colonialist era. in my view it is somewhat of a conundrum to treat jurisdiction in its ordinary meaning when it is being realised in extraordinary circumstances. such arguments were further aided by a rigid notion of what indeed was the relevant time, sine the time taken as the relevant time secured the negation of their right to protection. the british courts took the recent time and the time at which these men were transferred, 2008, as the relevant point. their detention in a previous time frame, prior to 2008, and any obligations to the protection of the human rights of the two men whilst held in british custody, were excluded. this produced a somewhat illogical and piecemeal outcome which, in effect, placed the men beyond humanity’s reach. principles of justice and humanity, the foundation stones of law and one of the declared reasons for the british government’s invasion, were abandoned, through being subordinated to a fixed model of territory and relevant time, thereby ensuring an inevitable outcome. the divisional court stated that their decision left them “seriously troubled” because if convicted the men would face execution, whilst the court of appeal found any extension of the echr to southern iraq “manifestly absurd”. stripped of context and hermeneutically sealed off from what was, in fact, happening all around the court in this case began to resemble what geoffrey robertson has called “slot-machine jurisprudence”.76 75 monroe h freedman hofstra law review 2006 34 4 summer. see also in re griffiths, 413 us 717, 724 n 14 (1973) (citation omitted). see also cammer v united states, 359 us 399, 405 (1956), in which it was held that lawyers are more than just officers of the court “within the conventional meaning of that term”. 76 g robertson the justice game (london: chatto and windus, 1998) p x. current commentary 166 the difference made by teleological interpretation by stark contrast, the ecthr approached the case from a very different vantage point and brought justice and a moral code into sight, translating these overarching principles into legal judgement. as altiparmak writes, “the 'object and purpose' of the echr has been a crucial factor in the interpretation of the strasbourg organs.”77 the court was faced with a choice on the one hand of treating jurisdiction in the ordinary sense but denying the reality in which the men found themselves or indeed anyone might find themselves in iraq under occupation, or on the treating jurisdiction in a way that took into account the reality of the circumstances and thereby honoured the universal aspirations of the convention. the ecthr ostensibly started out from a natural law position à la hobbes, not of territory but of the commitment and quest for a just and responsible law. a position which echoes the sentiments of lord acton, “opinions alter, manners change, creeds rise and fall, but the moral law is written on the tablets of eternity.”78 they approached the case with a mindset of justice. as douzinas and warrington, when writing on the essence of a just and responsible decision, state – such a decision “must both conserve and destroy, or suspend, the law enough to reinvent it and rejustify it in each case. each case requires unique interpretation which no rule can guarantee absolutely. but, at the same time, there is no just decision if the judge does not refer to law or rule… this is the reason that we cannot say that a judgment is just. a decision…cannot be declared just because justice is the dislocation of the said of law by the – unrepresentable-saying of ethics.”79 indeed, lord denning himself said, “i must do justice, whatever the law may be.”80 the ecthr is indeed a living instrument and the need for it to be interpreted in the light of contemporary circumstances and context is rooted and reflected in its case law. as altiparmak points out that this principle is derived from the nature of the echr.81 effective protection (effet utile) lies at its heart requiring application of the provisions to ensure its safeguards are practical and effective. 77 see altiparmak above n 34. 78 cited in j glover humanity: a moral history of the twentieth century (london: pimlico, 2001) p 1. 79 cited in a sarat (ed) law, violence and the possibility of justice (princeton: princeton university press, 2002) p 7-8. 80 g robertson the justice game (london: chatto and windus, 1998) p x. 81 r. bernhardt “thoughts on the interpretation of human rights treaties” in f matscher & h petzold (eds) protecting human rights: the european dimension (studies in honour of gérard j. wiarda), (1988) 5 at 68–71. the denning law journal 167 the vision and reach of the echr in ensuring effectiveness is also prospective or promissory – a performative utterance.82 as paul de mann when writing about laws in general terms, “[they] are future-orientated and prospective; their illocutionary mode is that of the promise. on the other hand, every promise assumes a date on which the promise is made and without which it would have no validity; laws are promissory notes in which the present of the promise is always a past with regard to its realization.”83 it is in this sense that the echr is promissory: it promises to protect and secure fundamental human rights, and arguably does so from the moment a person falls within its reach right up until the end or conclusion of the judicial/justicial process. in this regard, once arrested and under british jurisdiction, both men were guaranteed henceforth, in both the present and the future, human rights protection. it was therefore this promissory role of the echr that the ecthr implicitly relied upon, that is, to ensure the protection of al-saadoon and mufdhi until the end or conclusion of that process, notwithstanding the fact that in 2008 the british forces were no longer in control and an iraqi government was in situ. the teleological perspective applied by the ecthr enabled new possibilities. it is worth reflecting on the construct of “time” in the writings of avital ronell who writes, “justice can no longer permit itself to be merely backward looking or bound in servility to sclerotic models and their modifications (their “future”). a justice of the future would have to show the will to rupture...”.84 and what of the judges? by disclosing two faces of law and two different approaches, one legally mechanistic, narrow, and one morally purposive and effective, the british courts and the ecthr have demonstrated the inherent tensions within the law, between on the one hand its logic and its rules, and on the other hand its justice, played out in a context between international law and the echr principles. in theorising this dichotomy robert cover argues, “because of the violence they command, judges characteristically do not create law, but kill it. theirs is the jurispathic office...among warring sects, each of which wraps itself in the mantle of a law of its own, they assert a regulative function that permits a life of law rather than violence.”85 the british courts effectively asserted this regulatory function killed human rights 82 see j austin philosophical papers (clarendon:oxford 1960). j austin how to do things with words (cambridge: harvard, 1975). 83 paul de mann allegories of reading: fugural language in rousseau, nietzsche, rilke, and proust (new haven: yale university press, 1979) p 273. 84 a ronell wars: literature addiction mania (lincoln: university of nebraska press, 1992) p 21. 85 a sarat (ed) law, violence and the possibility of justice (princeton: princeton university press, 2002). see also r m cover “the supreme court: a foreword”1983 97.4 harvard law review p 53. current commentary 168 law by privileging international law and its vision of territory above the potential universal reach of human rights. cover calls upon judges to be less “jurispathic” and to “invite new worlds.”86 the ecthr judges clearly see the world through the language and concepts of the lens of the echr, inviting new worlds, and are driven by the will to rupture old ways of thinking with purposive and universalist aspirations. reading the judgement of the ecthr in al-saadoon and mufdhi we are also reminded of drucilla cornell’s call to re-envision the good87 and her concern with the law of law. cornell challenges the indifference of the law, an indifference which is produced and allowed by law, and perhaps, characterises somewhat the law as applied by the british courts in this case albeit that the court of appeal did say that it was “seriously troubled” by the outcome of their judgement. the consequence of the decision of the british courts provides an example of what sarat calls “law’s violence”, unlike the ecthr who in re-imagining and reconfiguring legal thought, principles, justice and the construct of time, and overriding the fixity of territory produced a protective outcome. however, whilst the ecthr held that al-saadoon and mufdhi were indeed eligible to protection under the echr they, like the british courts, remained mute about the wider political context in which the men were detained. the two men, after all, were detained in basra by the british military88 without trial for several years “for imperative reasons of security” and it was not until the last moment that it was decided that they were allegedly involved in these murders and therefore treated as criminal detainees.89 the conditions of their detention by the british military were as mazin younis of the iraqi league, describes “...a mini-guantanamo in southern iraq, outside the boundaries of both iraqi and british legal jurisdiction.”90 the two men were kept in solitary confinement where they alleged they were subjected to deliberate sleep deprivation, extreme heat, arbitrary body searches and physical abuse.91 then, when the british authorities made it clear that they were going to simply disregard the strasbourg injunctive ruling they were turned over to the iraqi authorities. the 86 a sarat (ed) law, violence and the possibility of justice (princeton: princeton university press, 2002) p 53. 87 d cornell “from the lighthouse: the promise of redemption and the possibility of legal interpretation”, 11 cardozo law review 1687, 1709 (1990). 88 morning star march 3rd 2010. 89 the independent september 11th 2009. 90 the independent september 11th 2009. 91 morning star, march 3rd 2010. the denning law journal 169 courts, in the main part, avoided the factual realities of the experience of the men affected, and the consequences of any judgement.92 the fate of the jurisdiction question and the men as shiner somewhat ironically remarks, “we went into iraq on the basis that we would stand for the rule of law.”93 the ecthr decision in this case still leaves the question of territoriality unanswered. the two men currently remain in custody, in rusafa 1 prison94 in bahgdad. on 12th january 2010 their case was been sent back by the court of cassation to the investigative chamber for a renewed investigation. since then their lawyers have had no further information. with regard to the iht their lawyers have been informed that it was decided by the chief trial judge that the death penalty is no longer 92 this was not true in al-skeini and the house of lords did albeit briefly recognise the suffering of iraqi civilians. lord carswell [93] “my lords, it is a sad but inescapable consequence of armed conflict that lives will be lost. unhappily, some of the persons killed will be peaceable civilians caught in cross-fire. others will have been shot by members of the armed forces involved, and the extent of the justification for shooting them which may be advanced will vary enormously with the circumstances. one of the appeals before the house concerned such an innocent civilian, and it cannot even be determined on the evidence presently available which group fired the shot which killed her. in four of the appeals the victims were shot by members of the british armed forces. as is very commonly the case in such situations, the versions of the facts retailed by witnesses differ markedly. the soldiers maintain that they were or reasonably thought themselves to be under attack, and so were within the rules of engagement. civilian witnesses aver, however, that the victims were harmless and uninvolved citizens and that the shootings were unjustified. the sixth case is wholly different: mr baha mousa died as a result of appalling maltreatment in a prison occupied and run by british military personnel. his treatment cannot for a moment be defended, but due to a regrettable paucity of evidence it has not proved possible to bring to justice those responsible for his death.” 93 law society gazette (2009) 14 june 2009 “interview – phil shiner: fighting the good fight”. 94 sam dagher, in a report that details torture at rusafa april 27, 2010,states, “...at least 505 cases of torture were documented in iraqi prisons in 2009, according to a report released by the state department in march.” see http://www.state.gov/g/drl/rls/hrrpt/2009/nea/136069.htm see also human rights watch http://www.hrw.org/en/news/2010/04/27/iraq-detainees-describe-torture-secret-jail “detainees in a secret baghdad detention facility were hung upside-down, deprived of air, kicked, whipped, beaten, given electric shocks, and sodomized, human rights watch said today. iraq should thoroughly investigate and prosecute all government and security officials responsible” http://www.state.gov/g/drl/rls/hrrpt/2009/nea/136069.htm http://www.state.gov/g/drl/rls/hrrpt/2009/nea/136069.htm http://www.state.gov/g/drl/rls/hrrpt/2009/nea/136069.htm http://www.hrw.org/en/news/2010/04/27/iraq-detainees-describe-torture-secret-jail current commentary 170 an available sentence with the result that the charges were amended on july 29th 2009 and according to the iraq government “the death penalty is not an appropriate penalty for those charges.”95 meanwhile the territoriality question has also been considered in the context of british troops serving in iraq.96 in r (smith v mod)97 following the death of private jason smith on august 13th 2003 from hyperthermiaheatstroke while serving in iraq as a private soldier with the territorial army, the supreme court considered to what extent british soldiers serving in iraq are protected by the european convention on human rights and whether the inquest on jason smith should comply with article 2 of the convention. the supreme court, (lord phillips of worth matravers, president, lord hope of craighead, deputy president, lord rodger of earlsferry, lord walker of gestingthorpe, baroness hale of richmond, lord brown of eaton-under-heywood, lord mance, lord collins of mapesbury and lord kerr of tonaghmore) by a majority of 6 to 3 (lady hale, lord mance and lord kerr dissenting in part) overturned a ruling of the court of appeal that held soldiers on active service outside the uk were indeed entitled to the protection of convention rights, and found that they were not so protected (although found that an inquest should comply with art 2). considering the question of territoriality they concluded that they were bound by the decision of the house of lords in gentle,98 a case in which gordon gentle and geoffrey clarke were killed by a roadside bomb on june 28th 2004 – in ‘friendly fire’ so called – whilst serving in iraq. lord brown concluded in gentle: [68] no member of the committee could fail to be moved by the plight of these appellants and others like them, the mothers of soldiers killed on active service in iraq. your lordships naturally recognise too that the appellants' suffering is the greater because of their understandable concern that the invasion may not have been lawful in the first place. but however sympathetic your lordships may be to the appellants' plea for a public inquiry to address and resolve the questions that so trouble them—most notably perhaps, whether the invasion was lawful under international law, how the attorney general came to his opinion that it was, and whether perhaps the government was not in any event intent upon hostilities—your lordships could only order such an inquiry if art 2 of the european convention for the protection of 95 i am grateful to the legal team at pil for providing me with the latest information on these two men. 96 r (gentle) v prime minister [2008] ukhl 20, [2008] 1 ac 1356. 97 see above n 4. 98 see above n 96. the denning law journal 171 human rights and fundamental freedoms 1950 (as set out in sch 1 to the human rights act 1998) requires it. [69] each of your lordships has reached the clear conclusion that the appellants' argument for an inquiry under art 2 must fail. that too was the conclusion reached by collins j at first instance (who cannot be criticised for refusing permission to claim judicial review on the ground that it was unarguable) and by the court of appeal (who expressly granted the necessary permission not on the basis that the claim had any real prospect of success but rather because it thought there was compelling reason to hear it).[70] it is impossible to argue that art 2 of the convention was ever intended or is now apt to guarantee or police compliance by member states with art 2(4) of the charter of the united nations.”99 it is clear that the applicants in gentle, were also concerned with wider questions including; the “manifest absurdity” of the foraging by the uk into other territories, on this occasion iraq; trumped up global crime thriller tales of weapons of mass destruction; stockpiling in bunkers, and nuclear weapons that could destroy in 45 minutes. notwithstanding the importance of these questions and concerns the fate of al-saadoon and mufdhi is still undetermined even after the decision of the ecthr and in smith, (if appealed) the question of territory is still yet be concluded by the ecthr. as lord hope said, “a decision that the extra-territorial jurisdiction should be extended that far in this case would be likely to have profound consequences for other member states....and for the court itself. a decision of that kind is best left to strasbourg.”100 99 [2008] 3 all er 1 at 26. 100 smith see above n 4 at para 92. http://www.lexisnexis.com/uk/legal/search/runremotelink.do?langcountry=gb&linkinfo=f%23gb%23uk_acts%23num%251998_42a_title%25&risb=21_t9712286135&bct=a&service=citation&a=0.6926121976456194 current commentary introduction the invasion of iraq the deaths of british soldiers and the iraqi suspects british courts and a narrow vision of jurisdiction court of appeal – jurisdiction in basra? “manifestly absurd” human rights imperialism european court of human rights the will to do justice washing our hands of jurisdiction the difference made by teleological interpretation the fate of the jurisdiction question and the men for the purposes of right to self-determination, how does one define people in context of kashmir the denning law journal 2014 vol 26 pp 305-307 book review moral crusades in an age of mistrust: the jimmy savile scandal frank furedi, palgrave macmillan, london 2013 isbn 978-1137338013 price £24.99 hb carol brennan∗ frank furedi’s exposition of the jimmy savile scandal is a self-styled offer of a “sociologically informed explanation” of the drama, as it unfolded. its publication date of 2013 is significant, because even a year is a long time in the dismal saga of child abuse revelations in 21st century britain. professor furedi is emeritus professor of sociology at the university of kent and a high-profile commentator in print, both academic and popular, as well as in broadcasting. he itemises a number of modern manifestations of what he believes is a general loss of authority, when public institutions are no longer trusted and instead substitutions must be found. the resultant “moral crusades” created by politicians in concert with the media gain a momentum of their own but, he argues, analysis often reveals that these are nothing more than ineffectual responses to a problems which have been exaggerated or are even illusory. jimmy savile was a hugely influential british celebrity in the 1970s and ‘80s, known for fronting top of the pops on bbc television, while frenetically raising money for medical charities. by the time of his death in 2011 he had been knighted by the queen, had earned an audience with the pope, not forgetting the café named after him at stoke mandeville hospital. in 2012 evidence began to emerge which substantiated older suspicions, that savile had in fact been a prolific sexual predator, abusing the vulnerable of both sexes and all ages; usually gaining access to his victims through both his performing and charity activities. among formal responses, the metropolitan police instituted operation yewtree which extended on beyond savile the net of inquiry on historic child abuse. what has ensued has been described, variously, as a long overdue recognition of past wrongs or a “witch-hunt”. professor furedi believes that scandals such as this tell us more about today than yesterday. studying what he calls a “retroactive attribution of meaning” can reveal “the way a community understands itself”. in this instance, the outrage exhibited against savile is actually a form of psychocultural displacement of moral concerns. in 21st century britain, he argues, ∗ lecturer in law, university of buckingham 305 book review childhood is “sacralised”; that is made the subject of sentiment, veneration and profound emotional investment. in our diverse and fragmented society, the one crime about which there is consensus is that against children. a measure of durkheimian unity is provided by a phenomenon which is much more than criminal; the existence of child abuse constitutes “moral pollution”. furedi proceeds to posit an “inflation of abuse”, leading to a “demonology of ritual abuse, conspiracy and cover-up”. allegations of satanic ritual abuse, which were largely discredited in both the usa and the uk, are used to show how western society, unable to manage the vast uncertainties of 21st century life, finds some comfort in the belief that there are forces with a conspiratorial plan, however malign. however his own is arguments are actually similarly conspiracy-based; only here they are perpetrated by what he calls “moral crusaders”. the ever more frequent resort to the device of the judicial inquiry by governments faced with public disquiet on issues ranging from the decision to go to war in iraq to press regulation is explained by furedi in terms of a profound loss of trust in authority and public institutions. the inquiry is the current solution to what max weber identified as modernity’s search for legitimacy. furedi must have been amused to note the events of summer 2014. the home secretary theresa may was compelled to announce not one but two judicial inquiries into aspects of child abuse. chosen to chair a wideranging review of alleged cover-ups of abuse in the bbc, the church and other major institutions was the retired judge baroness butler-sloss. her appointment caused an outcry by those who believed that her family connections meant that her objectivity would appear compromised. following her decision to decline the position, it began to appear almost impossible to find any putative chair whose would not be questioned. effectively, judicial inquiries are now next on the list of public institutions found wanting. the history of the words “victim” (used sparingly even in press accounts of the concentration camps in 1945) and “abuse” are traced and it is noted that the usages have been so broadened that the distinctions between degrees of suffering have been lost. recent dissention over the possible criminalising of forms of emotional abuse in the domestic context would support his argument. further, his moral crusaders are said to be seeking to achieve “domain expansion” by portraying different forms of abuse as pervasive in society; by an ideology hostile to anyone who dares to question it. “scepticism the worst form of heresy.” but this is where the cracks begin to appear in the furedi argument. the plot thickens. 2014 saw the convictions of other high profile abusers including rolf harris and max clifford, while the lampard nhs report revealed a considerably wider scale to savile’s activities than had been guessed at the time furedi wrote. these developments do not in themselves diminish the central point he is making. however, more threatening to his 306 the denning law journal fundamental thesis are the ongoing revelations about the grooming, exploitation and rape of thousands vulnerable young girls preyed upon in cities such as rotherham, rochdale and oxford. here, as in the savile story, the key theme is not so much secrecy but the fact that victims and others who tried to reveal what was going on, were ignored at all levels of police, social services and local politics: a gross under-response. the status of the male perpetrators are very different from the “operation yewtree” cases – taxi drivers and kebab sellers rather than powerful celebrities, but yet again the victims were all vulnerable and their stories notably “inconvenient”. furedi in no way excuses or condones savile’s activities, which are duly condemned, however he implicitly characterises the scandal as a unique event from which it is dangerous to draw wider assumptions. he alleges that an overreaction to such cases has increased intergenerational mistrust; now there exists a cultural of suspicion which actually diminishes the safety of children. this is not a new observation but it is one which does a huge disservice to the increasingly evident reality that there exists a minority of men who pose a very real threat to the vulnerable, both at home and on the streets. the book ends rather inconclusively, with the fundamental understatement that, “it is still too early to determine the scale of fallout from savile”. the exploitation of the vulnerable is an unfortunate example chosen to illustrate a thesis with some very thought-provoking aspects. furedi’s concise analysis provides valuable conceptual tools with which to objectively assess societal reactions but it would be interesting to see if they can be applied to an under – rather than allegedly over – reaction. the biggest mistake that can be now made is to allow the savile case to be historicised – pushed into the past and disavowed, with hollow claims that “lessons have now been learned”. the phenomenon of the voiceless and inconvenient victim endures and remains to be addressed by academics, policy makers and society. 307 for the purposes of right to self-determination, how does one define people in context of kashmir the denning law journal 2014 vol 26 pp 301-304 book review cyber crime cyber crime & warfare, peter warren and michael streeter, hodder & stoughton, london, uk, 2013 isbn 9781444189988 price £8.99 pb cybercrime – the psychology of online offenders, grainne kirwan and andrew power, cambridge university press, cambridge, uk, 2013 isbn 978-0521180214 price £23.99 pb jocelynne a scutt∗ none of these four authors is a lawyer. yet both books are strong contributors to the field of cybercrime and essential reading for lawyers – as well as forensic psychologists, journalists, filmmakers, creative and information technologists, and historians interested in this burgeoning field. the historical accounts in both of the on-going development of cybercrime are particularly rewarding for lawyers from a common law background: they recount well the ingenuity of the criminal mind and the way common law can adapt to new developments, whilst pinpointing common law adaptability limitations spurring parliamentary intervention. simultaneously, the books encapsulate well the excitement generated by the rise of the computer and the internet, the invention of the world wide web, and the escalating growth of social media. cyber crime & warfare is written by two journalists with a wealth of complementary expertise, the book being blessed with an engaging style which makes it easily read: i did this in one sitting. directed at the general reader and specialists from a range of disciplines, eleven chapters cover ‘the nature of cyber crime’, through ‘the history of hacking’, ‘the rise of the internet and virus threat’ and cyber espionage, identity theft, spam, botnets and ‘cyber warfare and the information war’. chapters also describe the profiles of cyber criminals and ‘policing cyber space’ as well as the troubling engagement of the internet and the vulnerable: ‘targeting children’. the book ends with a chapter on ‘future technology ...’ and ‘100 ideas’ for exploration of the subject in great depth. the 100 list includes websites, historical and ∗ the hon dr jocelynne a scutt, barrister & human rights lawyer, visiting fellow, lucy cavendish college, university of cambridge, visiting professor, university of buckingham. 301 book review contemporary locations for pursuing hacking history, annual conferences, films, non-fiction books, cybercrime fighting organisations, destructive computer viruses and worms, famous hackers or cyber criminals, hackers-infiction (including stieg larsson’s lisbeth salander and michael crichton’s dennis nedry of jurassic park) and ‘five spectacular hacks’, (the 77m accounts compromised through the 2011 hacking of the sony playstation network being one) plus 'ten key milestones in the history of cybercrime’ . cybercrime sets out consciously to be a graduate and undergraduate text book, the first chapters introducing key concepts (forensic psychology and cybercrimes) and offences specific to computer hacking and malware, followed by chapters covering crimes facilitated by computer technology or becoming more prevalent with its advent, including copyright infringement, identity theft, fraud, terrorism, bullying, stalking, child pornography and child sexual exploitation. the final chapter addresses crime committed in virtual worlds. each chapter commences with case studies anticipating what is to follow and introducing readers to computer and internet crimes of varying types, their impact on victims and survivors, (possible) consequences for perpetrators and, sometimes, perpetrators’ excuses, explanations or rationalisations. a chapter overview and conclusion sandwich the substantive content which is fashioned into sections followed by short summaries or activities students can undertake to ensure they have a good grasp of the material. additional assistance to students is provided through model essay questions and lists of additional reading at each chapter conclusion. this format makes the student audience objective clear, yet does not detract from the interest or value to those pursuing the field for reasons other than examtaking. that the authors work in the dublin institute of art, design and technology (iadt) ensures they know their subject well and are adept combining their respective skills, qualifications and expertise to ensure a captive audience: grainne kirwan is a psychology lecturer, her doctoral thesis researching ethics, motives and interpersonal relationships of hackers, whilst as iadt head of the faculty of film, art and creative technologies, andrew power comes with 18 years ict industrial experience and a doctorate researching active citizenship linkages through social networking. for criminal law teachers, particularly, cybercrime and cyber crime & warfare provide opportunities for incorporating into traditional criminal law teaching examples and perspectives on existing criminal fields that can connect well with new generations of law students. tort teachers could also benefit, adapting criminal law scenarios to their field. as the books raise ethical questions, too, their relevance to law in contemporary times and the teaching of law students who use computers – including iphones and other electronic devices and the internet as a matter of course is self-evident. the books are timely, particularly with recent high profile trials having brought hacking to the fore. initial naivety and lack of awareness about the 302 the denning law journal intrusions and the capacity of journalists to engage in them have generated, at times, daily coverage of angry, upset and sometimes traumatised victims and survivors. yet this could be considered surprising in light of the longevity of this practice. hacking originated in the 1950s, when academics at mit and other science universities created and employed these skills, generating advances in information technology now underpinning the far reaching positive uses of computers and the internet today. warren & streeter point out that thirty years ago the prosecution of robert schifreen and stephen gold under the 1981 forgery and counterfeiting act failed when, on appeal, the court ruled that charges of forgery, theft and criminal damage had no applicability to hacking into the mailbox of philip windsor (husband of the british monarch). this prosecutorial failure generated the computer misuse act 1990 (uk), reflecting the us computer fraud and abuse act of 1984. both books discuss at some length hacking as a socio-criminal phenomenon. kirwan and power provide the most comprehensive coverage, devoting an entire chapter to ‘hackers’ and debating varying definitions which attest to the fluid or variable assessment of this activity. confirming, however, that traditional ways of looking at crime, criminality and criminals persist, the hacking world is populated by white hat and black hat hackers – as well as a new category, grey hat hackers. those in the ‘white’ camp engage in hacking activity which is formally criminal, however, they do so for ‘good’ reasons – to discover flaws in it systems and failures of security so as to alert system owners and, on occasion, correct these failures and flaws. ‘black hats’ engage in the same hacking practices – yet use the information gained for nefarious purposes: syphoning off large monetary sums being a principal pursuit. those under the ‘grey’ headgear hack to uncover flaws and failures – then alert the subject companies or governments, demanding payment for information that will counter the problems, or offering their expertise to correct them – at a price. the difficulties of policing nefarious activities online, the international nature of this criminal activity – adding not only to policing difficulties but to framing effective legislation in the first instance – are canvassed well – more briefly in cyber crime, more extensively in cybercrime & warfare, yet both providing useful insights. cooperation between crime agencies on an international basis is a positive development leading to multiple arrests on an unprecedented scale, particularly in relation to child exploitation and transmission of and accessing abusive images and videos. as the books affirm, this is a developing area of the law – new laws, old laws adapted, and the need for ingenuity in law making in a field where technological advances mean that crime fighting may seem ever a step behind. one particularly interesting aspect is the cooperation between governments and corporations having a mutual interest in halting practices which can interfere with corporate and state security. the inclusion of ‘warfare’ in 303 book review warren and streeter’s book is complemented by kirwan and power’s coverage of terrorism. for lawyers and law teachers seeking to engage with these new (and extension of old) practices, at a time when reliance on computer technology and the internet is ever-growing, cyber crime and cyber crime & warfare will – along with more traditional casebooks – be a valuable addition to the library. 304 cyber crime cyber crime & warfare, peter warren and michael streeter, hodder & stoughton, london, uk, 2013 isbn 9781444189988 price £8.99 pb cybercrime – the psychology of online offenders, grainne kirwan and andrew power, cambridge university press, cambridge, uk, 2013 isbn 978-0521180214 price £23.99 pb human rights, 'arranged' marriages and nullity law: when do 'force', parental denning law journal 2014 vol 26 pp 98 148 consumer capture and the legal services act 2007 tim sinnamon* 1. introduction it is now nearly 7 years since the legal services act 2007 (lsa)1 was brought onto the statute books.2 it is now 5 years since the major provisions of the act became effective.3 for those unfamiliar with the act, it is a blockbuster piece of legislation4 which in its entirety runs to 214 sections (covering 120 pages) and 24 schedules which make up the remainder of the total 389 pages. the lsa 2007 sought to fundamentally recalibrate the regulation of the legal services market. to achieve this, the act introduced a new tier of oversight regulation, above the then existing regulators of legal services.5 this new oversight regulator, called the legal services board (lsb) is armed with an arsenal of statutory powers. the lsa 2007 also established a new ombudsman in the form of the office of legal complaints.6 potentially the most contentious change brought about by the lsa 2007 was that it paved the way for new methods of practising law,7 including, alternative business structures * dr tim sinnamon, ba(hons), pgdip, llm pgcap, phd, fhea, lecturer in law, buckingham law school, university of buckingham, buckingham, mk18 1eg. email: tim.sinnamon@buckingham.ac.uk. 1 legal services act 2007 (lsa 2007). 2 ibid. received royal assent on the 30 october 2007. 3 the legal services board came into being on the 1 january 2009. it became fully operational on the 1 january 2010. 4 james thorne and ian miller, guide to the legal services act (lexis nexis 2009). 5 now termed ‘approved regulators’: the law society, the general council of the bar, the master of faculties, the chartered institute of legal executives, the chartered institute of patent attorneys, the institute of trade mark attorneys, the association of law costs draftsmen; the council for licensed conveyancers. 6 lsa 2007, pt 6. 7 ibid pt 5. it should be noted that legal disciplinary partnership and multidisciplinary partnership were previously provided for, in a limited way, in the administration of justice act 1986 and the courts and legal services act 1992, though no steps were substantively taken to develop them. 98 the denning law journal (abs) which, when fully developed will allow for what were commonly referred to as multi-disciplinary practices, and much more. currently the authorised regulators of abs8 permit non-lawyers to own legal service providers and many more permutations of ownership and service delivery than hitherto existed. at the time of writing 2909 abs have been authorised and regulated by the solicitors regulatory authority since 26 march 2012. 43 abs10 have been authorised and are regulated by the council for licensed conveyancers since 6 october 2011. ipreg11 who regulates for and on behalf of cipa12 and itma13 were approved by the ministry of justice14 and the lsb to regulate abs in december 2013. the bar announced on 27 june 2014 that it will move towards entity licencing, though they have signalled that this will fall short of full abs.15 the institute of chartered accountants in england and wales (icaew) was recommended to the lord chancellor by the lsb in december 2013 to be accepted as an approved regulator for probate and as a licensing authority for abs. the lord chancellor approved of this on the 6 march 2014 paving the way for icaew to become the first non-legal body to be able to regulate probate services and licence abs.16 icaew received assent to regulate probate activities and licence abs on the 14 august 2014.17 8 ibid pt 5. 9 ‘register of licensed bodies (abs)’ (solicitors regulation authority) <http://www.sra.org.uk/absregister/> accessed 29 july 2014. 10 ‘licensed body (abs) register’ (council for licensed conveyancers) <http://www.conveyancer.org.uk/absregister.php> accessed 29 july 2014. 11 intellectual property regulation board. 12 chartered institute of patent attorneys. 13 institute of trade mark attorneys. 14 neil rose, ‘ipreg poised to become licensing authority number 3’ (legal futures, 10 december 2013) <http://www.legalfutures.co.uk/latest-news/ipregpoised-become-abs-licensing-authority-number-3> accessed 24 july 2014. 15 catherine baksi, ‘bar regulator announces move into entity licensing’ (law society gazette, 27 june 2014) <http://www.lawgazette.co.uk/practice/ipregauthorised-to-regulate-abs-entities/law/bar-regulator-announces-move-into-entitylicensing/5041910.article> accessed 14 august 2014; nick hilborne, ‘barristers lay out plans for range of new entities’ (legal futures, 1 july 2014) <http://www.legalfutures.co.uk/latest-news/barristers-lay-out-plans-range-newentities> accessed 14 august 2014. 16 neil rose, ‘grayling gives accountants abs and probate green light’ (legal futures, 7 march 2014) <http://www.legalfutures.co.uk/latest-news/graylinggives-accountants-abs-probate-green-light> accessed 15 august 2014. 17 gazette reporter, ‘icaew approved to regulate probate and license abs’ (law society gazette, 14 august 2014) 99 http://www.sra.org.uk/absregister/ http://www.conveyancer.org.uk/absregister.php http://www.lawgazette.co.uk/practice/ipreg-authorised-to-regulate-abs-entities/law/bar-regulator-announces-move-into-entity-licensing/5041910.article http://www.lawgazette.co.uk/practice/ipreg-authorised-to-regulate-abs-entities/law/bar-regulator-announces-move-into-entity-licensing/5041910.article http://www.lawgazette.co.uk/practice/ipreg-authorised-to-regulate-abs-entities/law/bar-regulator-announces-move-into-entity-licensing/5041910.article http://www.legalfutures.co.uk/latest-news/barristers-lay-out-plans-range-new-entities http://www.legalfutures.co.uk/latest-news/barristers-lay-out-plans-range-new-entities http://www.legalfutures.co.uk/latest-news/grayling-gives-accountants-abs-probate-green-light http://www.legalfutures.co.uk/latest-news/grayling-gives-accountants-abs-probate-green-light consumer capture and the legal services act 2007 these developments signal profound change and it is for this reason that this paper examines, in part, the way in which regulation of the legal services market is done. in particular it considers the regulatory objectives included in the lsa 2007.18 the regulatory objectives run through the lsa 2007 like the lettering in a stick of rock. there are over thirty substantive references to the regulatory objectives in the act. far from being a passive declaration of the purpose of the act, the regulatory objectives underpin the statutory obligations of the lsb19 and the approved regulators.20 the lsb, the approved regulators, and the olc21 are all obliged to act in a way that they consider appropriate for meeting the regulatory objectives.22 the lsb23 and the olc24 need to prove how they have met the regulatory objectives in their annual reports. the lsb has a considerable range of powers, including: setting approved regulators performance targets,25 directions regarding actions that need to be taken,26 censuring approved regulators,27 giving intervention directions allowing for the removal of a regulatory function from an approved regulator,28 and, most dramatically, removing an approved regulators licence to regulate.29 each of the foregoing powers rests on the lsb’s determination as to how the approved regulators’ actions or omissions have affected one or more of the regulatory objectives. <http://www.lawgazette.co.uk/practice/icaew-approved-to-regulate-probate-andlicense-abss/5042605.article> accessed 15 august 2014. 18 lsa 2007, pt 1, s 1. 19 ibid s 3(2)(a). 20 ibid s 28(2)(b). 21 ibid s 118(2)(b). 22 the regulatory objectives are: (a) protecting and promoting the public interest; (b) supporting the constitutional principle of the rule of law; (c) improving access to justice; (d) protecting and promoting the interests of consumers; (e) promoting competition in the provision of services within subsection (2); (f) encouraging an independent, strong, diverse and effective legal profession; (g) increase public understanding of the citizen’s legal rights and duties; (h) promoting and maintaining adherence to the professional principles. 23 lsa 2007, s 6(2)(b). 24 ibid s 118(2)(b). 25 ibid s 31(2)(a). 26 ibid s 32(4). 27 ibid s 35. 28 ibid s 41(1). 29 ibid s 45. 100 the denning law journal the importance attached to understanding what each regulatory objective means is undeniable. regulators and administrative authorities are often charged with making complex judgements. in the context of the lsa 2007, individual objectives, within a broad spectrum of regulatory objectives, need to be rationalised, by the regulators, with each other. these regulatory objectives, for reasons outlined throughout this paper, and others,30 set the course for the regulation of legal services. the introduction of regulatory objectives into the lsa 2007 was by no means an uncontroversial move. there has been much discussion about these regulatory objectives and it is not the intention of this paper to revisit this.31 this paper considers two of the regulatory objectives, namely: the objectives of “protecting and promoting the consumer interest” and “protecting and promoting the public interest”. as this paper will both argue, and demonstrate, attention appears to have been lavished on the former at the expense of the latter. this paper argues that rather than the lsb investing time and effort into understanding the public interest, the consumer interest has become the focus of most, if not all regulatory endeavours. the consumer interest has become firmly embedded in the lexicon of the lsb to the exclusion of any meaningful consideration of the public interest. this paper examines the approach of the lsb to the consumer interest and argues that there is evidence to suggest that the design of the regulatory structure and the process of regulatory decision making is such that regulation is being potentially captured by the consumer interest and those preoccupied with consumer affairs and consumerism. it demonstrates how this attention is stimulated by both the design of the lsa 2007 and, maybe, capture of the oversight regulator & legal services regulation, not by the legal profession, as pre the act it was commonly argued, but by the lscp, the consumer lobby and the consumer interest. moreover, this paper suggests that the lsb, and to a degree, the regulatory arms of the “approved regulators” have become “culturally captured.” this reinforces, as argued elsewhere by this author,32 the point that there should be a more considered, evidence based approach towards the public interest at the forefront of every regulatory endeavour, before any consideration of the consumer interest. this paper discusses in the next section what is required to found a claim of regulatory capture. the second section analyses what the consumer 30 laurel s terry, steve mark and tahlia gordon, ‘adopting regulatory objectives for the legal profession’ (2012) 80 fordham law review 2684. 31 ibid. 32 tim sinnamon, ‘the public interest and the legal services act 2007’ (phd thesis, university of surrey 2013). 101 consumer capture and the legal services act 2007 interest is, and establishes why pursuing it is not necessarily in the public interest. the third section identifies a number of structural features of the lsa 2007 which may, as a result of statutory creation, tilt regulation towards the consumer interest. these factors are important to any overall determination that capture of the legal services regulators has occurred. the fourth section reviews a number of decisions taken by the lsb. the final section draws together the points identified in the preceding sections and draws conclusions. 2. regulatory capture and the consumer interest one of the intellectual arguments underpinning the developments that led to the lsa 2007 was that the legal profession had captured regulation for its own self-interest.33 self-regulation by the professions was lambasted from a number of quarters.34 a number of commentators suggested that the regulatory environment at the time could be explained by private interest theories of regulation or capture.35 many of these claims remain vulnerable to strict scrutiny especially as stigler’s36 rather arbitrary standard of causal inference, in connection with his private interest theories of regulation have been uncritically embraced by a subsequent generation of economists.37 this paper does not seek to unpack these claims – rather, it argues, that if anything there has been, if ever 33 richard abel, english lawyers between the market and state the politics of professionalism (oup 2004); david clementi, review of the regulatory framework for legal services in england and wales, final report (december 2004) 57-8; robert baldwin, martin cave and kate malleson, ‘regulating legal services: time for the big bang?’ (2004) 67 mlr 787; oecd, competition in professional services (daffe/clp 2000) 3-4; iain paterson and others, ‘regulation of professional services’ (ihs, 2003) <http://ec.europa.eu/competition/sectors/professional_services/studies/prof_servi ces_ihs_part_1.pdf> accessed 22 july 2014. 34 ibid. 35 frank stephen, ‘the market failure justification for the regulation of professional services markets and the characteristics of consumers’ in claus dieter ehlerman and isabela atanasiu (eds) european competition law annual 2004: the relationship between competition law and (liberal) professions (hart publishing 2004); paterson (n 33). 36 george stigler, ‘the theory of economic regulation’ (1971) 2 bell journal of economics and management science 3. 37 daniel carpenter and david a moss, preventing regulatory capture, special interest influence and how to limit it (cambridge 2014) 8-9. 102 http://ec.europa.eu/competition/sectors/professional_services/studies/prof_services_ihs_part_1.pdf http://ec.europa.eu/competition/sectors/professional_services/studies/prof_services_ihs_part_1.pdf the denning law journal there was capture by the professions, a pendulum swing, not necessarily to a neutral ground where regulation pursues policies free of capture, but, that matters have now swung beyond this, to a situation whereby regulation has become preoccupied with the consumer interest, as constructed and interpreted by the lsb, lscp and lobbyists on behalf of discrete sections of the consumers of legal services.38 the argument that the lsb and regulators are now preoccupied by the consumer interest is not a particularly new one. a number of claims have been made to this end.39 notably, lord neuberger has referred to “consumer fundamentalism” and the “tyranny of the consumer interest.”40 as recently as the 20 june 2014 he spoke of the dangers of the lsb regulating solely in favour of the consumer.41 this paper attempts to argue that rather than these being unjustifiable claims, as the previous chairman of the lsb42 and current chairwoman of the lscp43 have tried to make 38 the construction of the consumer interest by the lsb and lscp has been by no means uniform or all embracing. it has concentrated on consumers of ‘regular legal services’ – (conveyancing, probate, small business matters etc) and vulnerable consumers (with specific impairments). it has not looked at the consumer in a wider sense – including the government, the courts, large businesses, society, the rule of law. 39 jonathan goldsmith, ‘the core values of the legal profession for lawyers today and tomorrow’ (2008) 28 north-western journal of international law and business 441; ruth deech, ‘regulating the regulators’ (gresham college, 23 may 2012) <http://www.gresham.ac.uk/lectures-and-events/regulating-theregulators> accessed 27 july 2014. 40 david neuberger, ‘the tyranny of the consumer or the rule of law’ (speech by lord neuberger master of the rolls 25th annual bar conference 6 november 2010); neuberger d, ‘professional discipline – challenges for the future’ (lord neuberger, master of the rolls, keynote speech, disciplinary conference, 5 february 2010). 41 ‘lord neuberger at a conference of the bar councils of northern ireland and ireland, belfast: the future of the bar’ (the supreme court, 20 june 2014) <http://www.supremecourt.uk/docs/speech-140620.pdf> accessed 14 august 2014; dan bindman, ‘neuberger backs single regulator but criticises lsb for adding cost and confusion’ (legal futures, 25 june 2014) <http://www.legalfutures.co.uk/latest-news/neuberger-backs-single-regulatorcriticises-lsb-adding-cost-confusion> accessed 14 august 2014. 42 david edmonds, ‘quality and standards in a liberalised market’ (legal services board, 10 may 2012) <http://www.legalservicesboard.org.uk/news_publications/speeches_presentation s/2012/20120510-david-edmonds-russell_cooke_speech.pdf> accessed 14 july 2014; elizabeth davies, ‘unreflective consumer fundamentalism: who are the 103 http://www.gresham.ac.uk/lectures-and-events/regulating-the-regulators http://www.gresham.ac.uk/lectures-and-events/regulating-the-regulators http://www.supremecourt.uk/docs/speech-140620.pdf http://www.legalfutures.co.uk/latest-news/neuberger-backs-single-regulator-criticises-lsb-adding-cost-confusion http://www.legalfutures.co.uk/latest-news/neuberger-backs-single-regulator-criticises-lsb-adding-cost-confusion http://www.legalservicesboard.org.uk/news_publications/speeches_presentations/2012/20120510-david-edmonds-russell_cooke_speech.pdf http://www.legalservicesboard.org.uk/news_publications/speeches_presentations/2012/20120510-david-edmonds-russell_cooke_speech.pdf consumer capture and the legal services act 2007 out – preoccupation with the consumer interest, to a point of regulatory capture, is an emerging reality. in addressing this claim it is important to set out firstly, the ingredients for a claim of consumer capture and secondly, the problems associated with the consumer interest which indicate that regulating primarily in this interest is neither pragmatic, appropriate, nor, necessarily in the public’s interest. regulatory capture there were a number of early models and case studies developing the theory of regulatory capture and the general understanding of the attendant dangers.44 beyond these early works there has been relatively little follow up in recent decades.45 in a traditional sense, critics maintain that regulatory capture stunts competition and innovation, as firms are able to capture their regulators effectively wielding the regulatory power of the state and can use it as a weapon to block the entry or success of other firms.46 capture has thus been alleged – perhaps quite plausibly – to figure significantly in the major human and environmental crises of our unreflective consumer fundamentalists? (legal services consumer panel, 28 february 2013) <http://www.legalservicesconsumerpanel.org.uk/how_can_we_help/blog/blog_en try_chair_march_2013.html> accessed 14 august 2014. 43 elizabeth davies, ‘what is the consumer interest?: using the consumer principles (legal services consumer panel, 20 november 2013) <http://www.legalservicesconsumerpanel.org.uk/how_can_we_help/blog/blog_en try_chair_006_2013.html> accessed 14 august 2014. 44 george stigler, ‘the theory of economic regulation’ (1971) 2 bell journal of economics and management science 3. for a general account see: robert baldwin and martin cave, understanding regulation (oxford 1999); richard posner, ‘theories of economic regulation’ (1974) 5 the bell journal of economics and management science 335; kip viscusi, john vernon and joseph harrington, economics of regulation and antitrust (2nd edn, mit 1995); peter aranson, ‘theories of economic regulation: from clarity to confusion’ (1990) 6 journal of law and politics 247; micheal hankte-domas, ‘the public interest theory of regulation: non-existence or misinterpretation?’ (2003) 15 european journal of law and economics 165, 185; hans maks and niels phillipsen, ‘an economic analysis of the regulation of professions’ in lode vereeck regulation of architects (intersentia, 2002); cass r sunstein, after the rights revolution: reconceiving the regulatory state (university of chicago press 1990). 45 carpenter (n 37) 13. 46 ibid 1. 104 http://www.legalservicesconsumerpanel.org.uk/how_can_we_help/blog/blog_entry_chair_march_2013.html http://www.legalservicesconsumerpanel.org.uk/how_can_we_help/blog/blog_entry_chair_march_2013.html http://www.legalservicesconsumerpanel.org.uk/how_can_we_help/blog/blog_entry_chair_006_2013.html http://www.legalservicesconsumerpanel.org.uk/how_can_we_help/blog/blog_entry_chair_006_2013.html the denning law journal time.47 capture has also been blamed for severely under-cutting efforts at reform.48 plugging some of the gaps in the scholarship is now an edited collection by carpenter and moss published in 2014.49 the text, which will surely become seminal, brings together a set of authors from a range of disciplines who attempt to gain a clearer grasp of what regulatory capture is, where and to what extent it occurs, what prevents it from occurring more fully and pervasively, and, finally, it attempts to distil lessons for policy makers and the public for how capture can be mitigated and the public interest protected.50 for present purposes, the text suggests a useful working definition of regulatory capture and the key ingredients against which a claim of capture should be judged. “regulatory capture is the result or process by which regulation, in law or application, is consistently or repeatedly directed away from the public interest and toward the interests of the regulated industry, by the intent and action of the industry itself.” 51 previous definitions and theoretical treatments of capture theory have focused on the regulated industry capturing the regulator for its own benefits. in the context of legal services this would be the legal profession capturing regulation for its own self-interest. these theories afford little room for the consideration of other interests capturing regulation. in a departure from existing theories, carpenter52 notes that in principle, the word “industry” in their definition could be replaced with the word “interest” or “special interest.” they advance this idea on the basis that they believe other actors have the potential to twist regulation to serve their own interests at the expense of the broader public interest.53 it is on the basis of this theoretical acknowledgement that this paper proceeds to argue that consumerism and the “consumer interest” in the hands of the lsb, lscp and consumer lobby may be orientating regulation away from the public interest as a result of capture. the foregoing definition of capture can be broken down into three distinct elements. firstly, public interest; secondly, intent and thirdly, regulated industry. carpenter and others also set out quite clearly the 47 ibid 2. 48 ibid 2. 49 ibid. 50 ibid 2. 51 ibid 13. 52 ibid 14. 53 ibid 14. 105 consumer capture and the legal services act 2007 evidential burden required to establish a claim of capture. the public interest element is perhaps the most difficult element to qualify or quantify. carpenter notes, as do a whole plethora of lawyers, political scientists and philosophers that both understanding and measuring the public interest is a “thorny problem as old as democracy”.54 the author of this paper has also conducted significant research on this very problem in the context of legal services,55 noting that the lsb’s own understanding of the public interest is problematical and lacking in many regards.56 the second element of carpenter’s definition requires intent. carpenter argues that the fact that an industry or special interest is well served by regulation is deeply insufficient for a judgment of capture. both intent and action on the part of the regulated industry or special interest are required. unless the industry or special interest actively and knowingly pushes regulation away from the public interest, there can be no capture. carpenter suggests the fact that an industry or special interest benefits from regulation, is, by itself, insufficient, because it could be alternatively explained by bureaucratic drift, coincidence, or mistakes, or a simple by product of public serving regulation.57 the third element of carpenter’s definition is consistent with many earlier theories of capture in which industry captures regulation for its own benefit. the industry or special interest needs therefore to derive some benefit from the regulation. carpenter suggests that their definition of capture provides a set of standards for making statements about whether capture has occurred in the case of a given regulation or agency. he argues that three general empirical standards straightforwardly flow from their definition. to claim capture, they suggest an argument ought to provide a defeasible model of the public interest; show a policy shift away from the public interest and towards industry (special interest), and, show action and intent by the industry (special interest) in pursuit of this policy shift sufficiently effective to have plausibly caused an appreciable part of the shift.58 the extent of carpenter and other’s contribution to the literature is robust and there is much fruitful research to be conducted on a host of aspects of capture. of particular note are the various ways in which, relatively subtly, scholars now suggest capture might come about. this is 54 ibid 13. 55 tim sinnamon, ‘the public interest and the legal services act 2007’ (phd thesis, university of surrey 2013). 56 ibid 172. 57 carpenter (n 37) 16-18. 58 ibid. 106 the denning law journal beyond the commonly understood methods of capture whereby political campaigns are funded by industry to exert influence, or, pressure is brought to bear on politicians, or the much discussed ‘revolving door’ method.59 in the context of legal services these more subtle forms of understanding how capture might occur are useful, as adducing evidence to substantiate a claim of capture in the traditional sense might prove difficult. moving beyond the aforementioned crude incentives which might appeal to regulator’s personal self-interest, james kwak,60 nolan mccarty61 and luigi zingales62 each explore new mechanisms of understanding capture. james kwak investigates the idea of cultural capture. he has explored new ways by which regulators are influenced, even unknowingly, by interests through a combination of social, cultural and intellectual currents.63 moving beyond other forms of capture – kwak argues that “people’s actions are the product of many different factors, and mixes of motivations are certainly possible.”64 he argues that there is evidence to suggest that regulators act according to their ideological beliefs.65 this, he suggests, only raises the question of how those beliefs are formed and specifically how the administrative process exposes regulators in such a way that it can colour their beliefs. both the capture model and the public interest model of regulatory action assume that regulators are rational actors: either they maximise their material self-interest or they maximise their consciously held policy interests.66 however, there is another possibility: that regulators are susceptible to nonrational forms of influence, which interest groups can exploit to achieve the practical equivalent of capture-favourable policy outcomes. kwak describes three mechanisms by which a regulated industry, or special interest, is able to 59 ibid 18. 60 james kwak, ‘cultural capture and the financial crisis’ in daniel carpenter and david a moss (eds), preventing regulatory capture, special interest influence and how to limit it (n 63). 61 nolan mccarty, ‘complexity, capacity, and capture’ in daniel carpenter and david a moss (eds), preventing regulatory capture, special interest influence and how to limit it (cambridge 2014). 62 luigi zingales, ‘preventing economists’ capture’ in daniel carpenter and david a moss (eds), preventing regulatory capture, special interest influence and how to limit it (cambridge 2014). 63 kwak (n 60). 64 ibid. 65 ibid. 66 ibid 71. 107 consumer capture and the legal services act 2007 shape regulators’ beliefs and actions – mechanisms that should not work if regulators are rational beings not devoted to their self-interest or if they form their policy preferences rationally. they are: identity: regulators are more likely to adopt positions advanced by people whom they perceive as being in their in-group. status: regulators are more likely to adopt positions advanced by people whom they perceive to be of a higher status in social, economic, intellectual, or other terms. relationships: regulators are more likely to adopt positions advanced by people who are in their social networks.67 the composition, background, experience, political affiliation of the many new actors involved in legal services regulation merits scrutiny and could form the basis of a study in and of itself. for present purposes, it is noteworthy that there is a flow of staff members between regulatory organisations in the city and in particular senior members from the former regulator oftel to the lsb. there is also a flow to and from the lsb, ofcom, the fca, the competition authorities and others quangos.68 from this it is plausible to suggest that there is an inter-exchange of ideas and methods of regulating – creating something of an “in group” and a broad based professional / social network. existing studies have already identified this point in other sectors.69 it has also been identified that some 67 ibid 71. 68 as an example of this david edmonds (former chair of the lsb), chris kenny chief executive of the lsb both previously worked at oftel and david edmonds remained for a while with ofcom. alex roy, research director of the lsb has recently left to join the financial conduct authority. crispin passmore, former lsb strategy director is now the executive director of the solicitors regulation authority. 69 peter lunt and sonia livingstone, ‘regulation in the public interest’ (2007) 17 consumer policy review 4; sonia livingstone, peter lunt and laura miller, ‘citizens and consumers: discursive debates during and after the communications act 2003’ (university of kent, october 2006) <http://www.kent.ac.uk/scarr/papers/livingstone%20wk%20paper10.(2).pdf> accessed 22 july 2014; sonia livingstone, peter lunt and laura miller, ‘citizens, consumers and the citizen – consumer: articulating the interests at stake in media and communications regulation’ (2007) 1 discourse and communication 85, 97; sonia livingstone, ‘what is the citizen’s interest in communication regulation?: ofcom’s agenda for “citizens, communications and convergence”’ (conference paper, lse research online, 30 october 2008) 2 108 http://www.kent.ac.uk/scarr/papers/livingstone%20wk%20paper10.(2).pdf the denning law journal of the “new regulators”70 regulate in a similar way, using nearly identical “tools.” these regulatory tools have also failed to get to grips with concepts analogous to the citizen or public interest.71 a casual review of the composition of the boards of the lsb, lscp and sra now reveals a membership of, on the whole, career board members often with past affiliations or current memberships of consumer organisations or competition promoting organisations.72 there is a loose similarity in the credentials, including academic and professional backgrounds, of many members of the various boards which oversee the regulatory functions of the larger approved regulators. this again hints at many of the precepts of cultural capture outlined above. the similarity of the recent composition of the lscp is something that has not escaped the attention of baroness ruth deech who in a house of lords debate on referral fees noted: “there is a perception that the legal services board consumer panel may fail the test of impartiality and expert evidence. after a freedom of information request, it was revealed that the panel has an unbalanced political composition. half of its members are declared members of the labour party and/or members of unionsthe unions being, of course, supporters of the labour party. why does this matter? because there is a conflict between the duty to represent the consumer and certain vested interests that are not always transparently declared in, for example, the consumer panel report on referral fees, which was adopted by the parent body, the legal services board. the labour party itself is in receipt of referral fees. lord justice jackson, in his review of civil litigation costs earlier this year, said that they should be banned in personal injury cases. so did the noble lord, lord young of (this work does not frame these observations in the context of capture or cultural capture). 70 ‘new regulators’ is a term used commonly to describe a new breed of regulators brought about during the period of the blair government. they were primarily concerned with economic regulation. they are variously lighter touch, public facing, risk centred, created by statute and funded by a levy on the industry they regulate and are usually accountable to parliament. see: livingstone (n 69). 71 lunt (n 69). 72 john kay, ‘how to spot a good from a bad quango’ (financial times, 12 october 2010) <http://www.ft.com/cms/s/0/cc7ff2e4-d651-11df-81f000144feabdc0.html#axzz36fpyhhm4 > accessed 25 october 2014; notably kay referred to a modern class of ‘quangocrats’ who glide effortlessly from committee to committee. 109 http://www.ft.com/cms/s/0/cc7ff2e4-d651-11df-81f0-00144feabdc0.html%23axzz36fpyhhm4 http://www.ft.com/cms/s/0/cc7ff2e4-d651-11df-81f0-00144feabdc0.html%23axzz36fpyhhm4 consumer capture and the legal services act 2007 graffham, in his report on the claims culture. the law society has set its face against the practice. therefore, it is odd that the lsb consumer panel has come out in favour of the retention of referral fees, whereby solicitors and others may buy in work by, for example, paying unions to refer business to them. given that half of the consumer panel is made up of members of the labour party, the perception may be there-it is possible to make the criticism-that it could be influenced by the unwillingness of the party to give up a potential source of income from the firm of solicitors that acts on its behalf in personal injury cases.”73 returning to other ways in which capture may manifest itself, mccarty74 argues that the “provision of expertise by interest” – in which, as a result of heightened complexity, regulators come to rely on industry or interest groups expertise in ways that tilt decision making toward these particular interests. the very fact, as discussed later on in this paper that the lsb is duty bound to interact with the lscp75 is a significant factor in any argument that a tilt has occurred in favour of the consumer interest. moreover, the fact that the lscp appears to repeatedly use certain research organisations, as does the lsb, shows a predisposition to particular ways of thinking. zingales76 argues, that perhaps the most subtle of all methods of capture occurs by “economists capture” in which industry or interest groups influences and incentivises scholars to favour a particular perspective in their work, thereby indirectly influencing regulators who rely on the scholars’ judgment and expertise in making decisions. the next section identifies the fact that the lsb and others have been explicit in their commitment to market failure analysis and cost benefit analysis, commonly following the treasury’s green book methodology.77 these economic methodologies for decision making are also clearly to be found used in much of the research appropriated by the lsb despite market failure analysis coupled with cost benefit being roundly criticised.78 the 73 baroness ruth deech, hl deb 9 november 2010, vol 722 col 170. 74 mccarty (n 61). 75 lsa 2007, ss 8-11. 76 zingales (n 60). 77 hm treasury, the green book appraisal and evaluation in central government (hmso 2003). 78 christopher decker and george yarrow, understanding the economic rationale for legal services regulation (legal services board, 2010) 12. 110 the denning law journal following interrogates the concept of the consumer interest and discusses the way in which it has become the focus of economic methodologies. 3. the consumer interest the lsa 2007 in part helps in the search for an understanding of the consumer. of all the terms that appear in the regulatory objectives, the only one that is further defined in the act is “consumer”. s 207(1) defines consumers as follows: legal services act 2007, s 207(1)79 “consumers” means persons a) who use, have used or are, or may be contemplating using, services within (subsection 2)80 b) who have rights or interests which are derived from, or are otherwise attributable to, the use of such services by other persons, or c) who have rights or interests which may be adversely affected by the use of such services by persons acting on their behalf or in a fiduciary capacity in relation to them this definition is broadly constructed, however, adding “interest”81 to it, to make “consumer interest,” presents more of a definitional challenge. prominent scholars in the world of consumer affairs have concluded that the term consumer interest “resists a single definition” and is “highly politicised”.82 this is an experience borne out by many established regulators, who have made concerted efforts to understand what the 79 lsa 2007, s 207(1). 80 ibid s 2(a): ‘any services provided by a person who is an authorised person in relation to an activity which is a reserved legal activity, and, (b) any other services provided by a person which consist of or include a legal activity carried on by, or on behalf of, that person.’ 81 for the purposes of this paper, the term interest is not taken to be a sense of feeling or curiosity. rather it relates to something being done, or enacted, or brought about, or maintained. it is a separate question from that of whether an individual must be aware of his interest. this approach broadly is an articulation of that commonly adopted in the literature pertaining to public interest scholarship. virginia held, the public interest and individual interests (basic books 1970) 18. 82 stephen broebeck, ‘defining the consumer interest: challenges for advocates’ (2006) 40 journal of consumer affairs 177, 178. 111 consumer capture and the legal services act 2007 consumer interest is.83 complex toolkits have been developed in the pursuit of diagnosing the consumer interest.84 broebeck, has, however, noted that the consumer interest can be most usefully thought of in terms of “competition, representation, information and redress.”85 the labour government shed some light on its understanding of the consumer interest in the heated debates between itself and the house of lords over proposed legislation, which later became the communications act 2003.86 to clarify the difference between the consumer and the citizen, borne out of a series of challenges to the language used in the communications bill presented to parliament, the government provided an explanatory memorandum.87 it noted that the consumer interest can be defined as the interest of a purchaser or other user of a good or service, normally based on an economic relationship between the individual and the supplier of the good or service in question.88 in comparison, the citizen interest may be defined as the interest of the individual in his or her capacity as a member of society and the public interest as the interest or good of society as a whole.89 in connection with the consumer interest, this has led scholars to note: “in a general sense one can define consumer interests in the market as related to four market characteristics of price, service, quality and choice.”90 83 ofcom, ‘capturing the consumer interest: a report of the launch of the toolkit for regulators and government’ (ofcom, 2 february 2006) <http://www.communicationsconsumerpanel.org.uk/downloads/policy/consumer %20interesttoolkit/events/capturing%20the%20consumer%20interest%20a%2 0report%20of%20the%20launch%20etc.pdf > accessed 22 july 2014. 84 lscp, ‘the consumer interest – using consumer principles consumer toolkit’ (lscp, january 2014) <http://www.legalservicesconsumerpanel.org.uk/ourwork/consumerengagement/ documents/usingconsumerprinciples2014.pdf> accessed 18 august 2014. 85 broebeck (n 82). 86 communications act 2003. 87 dti/dcms, ‘note by the department of trade and industry and the department for culture. media and sport on the meaning of “customer”, “consumer” and “citizen”’ (parliament, june 2002) <http://www.parliament.thestationery-office.co.uk/pa/jt200102/jtselect/jtcom/169/2070808.htm> accessed 22 july 2014. 88 ibid. 89 ibid. 90 eugène buttigietg, competition law: safeguarding the consumer interest a comparative analysis of us antitrust law and ec competition law (wolters kluwer 2009) 1. 112 http://www.communicationsconsumerpanel.org.uk/downloads/policy/consumer%20interesttoolkit/events/capturing%20the%20consumer%20interest%20a%20report%20of%20the%20launch%20etc.pdf http://www.communicationsconsumerpanel.org.uk/downloads/policy/consumer%20interesttoolkit/events/capturing%20the%20consumer%20interest%20a%20report%20of%20the%20launch%20etc.pdf http://www.communicationsconsumerpanel.org.uk/downloads/policy/consumer%20interesttoolkit/events/capturing%20the%20consumer%20interest%20a%20report%20of%20the%20launch%20etc.pdf http://www.parliament.the-stationery-office.co.uk/pa/jt200102/jtselect/jtcom/169/2070808.htm http://www.parliament.the-stationery-office.co.uk/pa/jt200102/jtselect/jtcom/169/2070808.htm the denning law journal this characterisation of the consumer, therefore, moves beyond a more general understanding of the consumer interest in terms of consumer rights and consumer protection. it reflects a more enhanced understanding of the consumer, as an individual with preferences and as a prime feature of the market. the government’s focus on the consumer in the legal services bill followed the trend embodied in its other public sector reforms. this leads therefore to an argument and hypothesis that “protecting and promoting the consumer interest” was concerned with ensuring the market mechanism worked effectively.91 the market perspective of the consumer interest is arguably of critical importance, as in a number of situations the market may not be compatible with other socially desirable outcomes.92 market failure is commonly used as the intellectual premise upon which many regulators approach regulation.93 it therefore provides a valuable lens with which to further view the consumer interest. the use of market failure is clearly apparent among many of the regulators created since 1997. the fsa94 and the lsb95 explicitly note that they use this approach in the process of decision making regarding policy and regulation. there is evidence that 91 there is clear evidence of this assertion in the following speeches by senior members of the legal services board. chris kenny, ‘alternative business structures and the legal services market – impact one year on and future challenges’ (speech at the westminster legal policy forum, 18 october 2012); david edmonds, ‘quality and standards in a liberalised market’ (address by the chairman of the legal services board, russell cooke forum, 10 may 2012). 92 for an outline account see stephen mayson, legal services regulation and “the public interest” (legal services institute 2011); for a more developed account: mike feintuck, the public interest in regulation (oup 2004); barry bozeman, public values and public interest (georgetown university press 2007); deborah satz, why some things should not be for sale: the moral limits of markets (oup 2010). 93 harry mcvea ‘financial services regulation under the financial services authority: a reassertion of the market failure thesis’ (2005) 64 clj 413. 94 ‘effective inspection and enforcement: implementing the hampton vision in the financial services authority’ (national audit office, 2008) <http://www.nao.org.uk/publications/0708/hampton_financial_services_au.aspx> accessed 22 july 2014; mcvea (n 93). 95 alex roy, ‘understanding the economic rationale for legal services regulation’ (legal services board, 2011) <http://www.legalservicesboard.org.uk/news_publications/latest_news/pdf/econo mics_of_legal_services_regulation_discussion_papers_publication_final.pdf> accessed 22 july 2014. 113 http://www.nao.org.uk/publications/0708/hampton_financial_services_au.aspx http://www.legalservicesboard.org.uk/news_publications/latest_news/pdf/economics_of_legal_services_regulation_discussion_papers_publication_final.pdf http://www.legalservicesboard.org.uk/news_publications/latest_news/pdf/economics_of_legal_services_regulation_discussion_papers_publication_final.pdf consumer capture and the legal services act 2007 other regulators, including ofcom96 commonly use this method, though they do not appear to have explicitly stated so, in the same way as the fsa and the lsb.97 the government’s green book98 also mandates market failure analysis and cost benefit analysis as the principal rationale for government intervention regarding the operation of markets and institutions.99 the following outlines the theory, and then considers it as a tool for policy and decision making. the market failure theory is a consumer orientated theory of regulation,100 rooted in the idea that market forces are the best means of ensuring that consumers’ needs are met. underlying the theory is the assumption that consumer preferences are more likely to be satisfied when firms engage in fierce and constant competition with each other. in the situation of a perfect market,101 the market is said to generate benefits for consumers in terms of price, innovation, quality, and variety of service (choice). these outcomes are only true under conditions of perfect competition.102 given that markets are seldom perfect and suffer from a variety of deficiencies, regulation is justified when it aims to eliminate market failures and so restore a competitive equilibrium. the justifications for regulation under the market failure thesis are limited to instances of information asymmetries; externalities; anti-competitive practices and public goods.103 the economic justification for the market failure approach is that through market based transactions enshrined in the idea of mutually beneficial, voluntary exchanges – consumer preferences are best satisfied and scarce resources are shifted to where they are most valued on the basis of willingness to pay otherwise known as “allocative 96 for an overall account of the market failure approach taken by ofcom see: tony prosser, ‘regulation and social solidarity’ (2006) 33 journal of law and society 364, 367 -369 97 roy (n 95). 98 hm treasury (n 77). 99 ibid. 100 mcvea (n 93). 101 ibid. 102 perfect competition presupposes: clearly defined property rights, nonnatural monopolies; no barriers to entry; no transaction costs. 103 frank stephen, ‘the market failure justification for the regulation of professional services markets and the characteristics of consumers’ in claus dieter ehlerman and isabela atanasiu (eds), european competition law annual 2004: the relationship between competition law and (liberal) professions (hart publishing 2004). 114 the denning law journal efficiency.”104 market failure establishes, however, only a prima facie case for regulation, and in some instances the costs of regulation may outweigh any benefits. market failure analysis is therefore often accompanied by a cost-benefit analysis.105 the consumer interest is, through this approach, essentially a by-product of the process of the market operating properly. the market, free of regulation, yields benefits in the consumer’s interest in terms of lower prices, more innovative services, better choice of services and better quality. however, within what is a relatively simple hypothesis, the consumer is construed narrowly. the following outlines some broad problems associated with the approach. the market failure theory is, by definition, rooted in the theory of private value and is driven by a concern for pricing efficiency.106 the narrowness of the approach has led to a number of studies which have shown that market failure negates broader public values, beyond the economic, and especially outcomes where the technical efficiency of prices is not a primary consideration.107 bozeman108 notes that the pervasiveness of market failure reasoning ensures a built in conservatism in public policy which often results in the neglect of public values. this is because the model marginalises many collective values by simply not dealing with them. this raises an important point. the market, by definition, is concerned with individual values; it is not concerned with collective values which may be important to the whole of society. this is significant in matters to do with the law, the environment and culture. in regards to law, concepts such as the rule of law, access and administration of justice, honesty and dignity, duties to the court, reputation, sustainability, independence and ethics are not easily translated into values that can be expressed in monetary terms. the market failure model and the consumer are therefore just concerned with the market. it is not 104 ibid. 105 hm treasury (n 77) 52; mcvea (n 93) 413. 106 barry bozeman, public values and public interest (georgetown university press 2007) 5. 107 richard zerbe and howard mccurdy ‘the failure of market failure’ (1999) 18 journal of policy analysis and management 558 the comprehensive critique analyses lighthouses, land tenancy, bees and crops, common property, concluding that in each of these cases the theoretical proposition put forward by market failure when tested empirically was incorrect. the authors suggest that the correct normative theory rests on transaction costs, which is inherently based on significant empirical enquiry. 108 bozeman (n 106) 20. 115 consumer capture and the legal services act 2007 concerned with other factors which may be of importance. market failure, is, as sagoff argues, a perfectly appropriate measure of the consumer’s interest.109 interests can accurately be assessed in terms of price, which reveals what individuals are willing to pay to obtain what they want.110 he posits that the model deals with the efficiency of markets and how one knows that markets are not efficient. it is not, he asserts, about people and social institutions.111 despite these problems, market failure is widely used by policy makers and regulators. decker and yarrow have commented on the unreflective use of market failure analysis and concluded that analysts tend to jump straight from a finding of “market failure” to a conclusion that intervention is not just potentially warranted, rather, they omit further investigation and assert that intervention is actually warranted.112 beyond this, there are a number of more subtle problems with the way in which the model constructs the preferences the market seeks to promote. the following sets these out. the traditional view of the free market is a presumption that what justifies regulation is market failure, or more specifically, the failure of the market by itself to achieve efficiency.113 the purpose of regulation under this model is to restore the market to its natural condition, or as close an approximation of that condition as can be hoped for.114 efficiency in this context has been explained by posner as follows: “efficiency is a technical term: it means exploiting economic resources in such a way that human satisfaction as measured by aggregate consumer willingness to pay for goods and services is maximised.”115 whilst, as noted, this approach is good at understanding the consumer’s interest, a number of scholars have queried whether the consumer interest is worth satisfying. notably, sagoff has argued: “an efficiency criterion assumes that the goals of our society are contained in the preferences individuals reveal or would reveal in 109 mark sagoff, ‘economic theory and environmental law’ (1981) 79 michigan law review 1393. 110 ibid. 111 peter brown, ‘the failure of market failures’ (1992) 21 journal of socio economics 1, 1-24; brown argues that it is premised on shallow utilitarianism and as such is a prisoner to its foundations in economic individualism. 112 decker (n 78) 12. 113 edward rubin, ‘deregulation, reregulation, and the myth of the market’ (1988) 45 washington and lee law review 1249, 1258. 114 ibid. 115 posner (n 44). 116 the denning law journal markets.”116 these individual preferences are not fixed,117 are subjective118 and reflect a number of cultural and maybe societal conditions.119 further to this, these individual preferences are capable of changing. were they not, there would be no place in the world for advertising, salespeople and consumer psychologists. the theory works on the premise that autonomously created, materially defined self-interests do exist, and it is the collective expression of these interests through market purchases which leads to optimal resource allocation.120 a critical argument flows from this that a preference satisfying policy will only be as good as the preferences as understood, and there is nothing that guarantees that the preferences will be the right ones, or ones worth having.121 many examples abound to explain this point. sagoff, frames the key issue as follows: “as consumers, indeed, we buy the least expensive goods, and in that way reveal a preference for lower worker safety standards, since they bring lower prices with them. yet as citizens we may regard ourselves as americans together and therefore responsible for the decency of workplace conditions. likewise many of us who never visit a magnificent landscape may believe nevertheless that society has a duty to preserve it. concerns such as these impersonal values rather than consumer preferences may become more important to us than our personal or economic interest.”122 in the context of legal services, stempel makes a similar point but builds on it by noting the importance of considering collective values in addition to individual consumer values in the context of the law. 116 mark sagoff, ‘at the shrine of our lady of fatima or why political questions are not all economic’ (1981) 23 acj 1283. 117 jane barron and jeffrey dunoff ‘against market rationality: moral critiques of economic analysis in legal theory’ (1996) 17 cardozo lr 431; mark sagoff ‘on preserving the natural environment (1974) 84 yale lj 205, 207. 118 stephen broebeck, ‘defining the consumer interest: challenges for advocates’ (2006) 40 journal of consumer affairs 177, 178. 119 rubin (n 113) 1267. 120 mcvea (n 93) 441. 121 mark sagoff, ‘the principles of federal pollution control’ (1986) 71 minn l rev 19, 58. 122 mark sagoff, ‘values and preferences’ (1986) 96 ethics 301, 311. 117 consumer capture and the legal services act 2007 “as a consumer, i am a participant in markets. my aim is to enhance my own well-being, by satisfying my preferences, which i express through market behaviour. as a citizen, my concern is different. it is a concern not with what is best for me but with what is right for us. my aim is to participate in deliberation with my fellows, and i consider not only my preferences but my (and our) values as well. frequently, my consumer preferences coincide with the values i support as a citizen; sometimes, however, they do not. because our aims as consumers and citizens are somewhat schizophrenic, public and private life both require a never-ending negotiation between consumer values and citizen values.” 123 the focus on consumer preferences alone is not desirable. mcvea124 argues that consumer preferences “tells us nothing about, indeed, it seems unconcerned with whether –those preferences are worth having.”125 this is not an isolated assertion. sagoff suggests that it cannot be argued that the satisfaction of preferences is a good thing in itself for many preferences are sadistic, envious, racist or unjust.126 furthermore, in the context of preferences, mcvea has noted that markets also pander to particular types of preferences (more is better than enough) and tend to systematically favour the lowest common-denominator amongst the spectrum of consumer preferences.127 what emerges from the foregoing is that one of the main methods of regulators decision making is largely predicated on both a narrow conception of the consumer interest, and secondly, is compromised in considering collective interests that may affect society as a whole. the market model is concerned with the market. there is little in the model which can discern when the consumer interest is compatible with the public interest, or when it is not. the market model pursues the market vision, irrespective of whether this is in the collective public interest or not. this raises a number of questions as to whether this is an appropriate method of approaching the regulation of legal services. 123 jeffrey stempel, ‘embracing descent: the bankruptcy of a business paradigm for conceptualising and regulating the legal profession’ (1999) 27 florida state university law review 120. 124 mcvea (n 93). 125 jane barron and jeffrey dunoff, ‘against market rationality: moral critiques of economic analysis in legal theory’ (1996) 17 cardozo lr 431; sagoff (n 117); mcvea (n 93); sagoff (n 122) 126 sagoff (n 121). 127 mcvea (n 93). 118 the denning law journal 4. structural positioning of the consumer interest understanding the problems with the consumer interest and the way in which it is commonly located within decision making processes is important in any overall determination of consumer capture, as it locates the objection towards regulators regulating in its interest without thoughtful consideration of the public interest. this section considers some factors which, in part, may explain the emphasis accorded to the consumer interest by the lsb. the following outlines the socio-political and economic influences which led to the emphasis afforded to the consumer interest in the lsa 2007. the following argues that the lsa 2007 is both stylistically and substantively a piece of economic regulation – drafted in a style that presents a number of interesting and, as yet, unresolved questions. it argues that the method of regulation, characteristic of the early years of the millennium, spawning a number of quango regulators, has, through a form of “group sync” and new public management128 influences, come to regulate in the consumer interest because it is amenable to relatively simplistic quantification and apparently transparent regulation. whilst the legal services bill was drafted with a strong economic and consumer emphasis, absent any reference to the public interest – this paper reiterates the fact that the overriding purpose of regulation is to further the public interest. whilst this is a simple matter of understanding for most, the explanatory notes to the lsa 2007 are delphic and vague. without promoting a clear hierarchy of regulatory objectives with the public interest at the top, it is perhaps understandable, but unforgivable, that regulators have sought to prioritise the consumer interest. the following section also draws attention to the statutory creation of the lscp and its very close relationship with the lsb. this section challenges this narrowly constructed formalised champion of the consumer interest within the lsb whilst noting that no other interest group is accorded such a privilege. the final argument made is that there is a long-standing recognition that charging a regulator with being a champion of both the consumer interest and the public interest is a problematical combination which might come to have serious consequences. 128 ‘new public management’. this prioritises the efficiency of public sector administration rather than an orientation towards broader values which many regard as important. consequently, a burgeoning area of study is to be found attempting to reconnect public services and management to public values; bozeman (n 106). 119 consumer capture and the legal services act 2007 there has been a long pedigree of claims, extending over 40 years, that the legal profession and legal services market should be liberalised.129 many accounts set out the background to these claims.130 it was only in and around the early years of the millennium that a number of catalysts coalesced to provide the requisite political will and potential for achieving a successful outcome for a piece of far reaching legislation reforming legal services. the labour government’s appetite for reforming the legal professions was perhaps most advantaged, politically, by a highly publicised problem with the handling of complaints made against solicitors.131 this problem fuelled a co-ordinated and sustained campaign 129 mmc, a report on the general effect on the public interest of certain restrictive practices (hmso 1970); oecd, competition in professional services (daffe/clp 2000); royal commission on legal services, the royal commission on legal services in england and wales: final report (hmso 1979); robin white, a guide to the courts and legal services act, 1990 (fourmat publishing 1991); richard abel, english lawyers between market and state (oup 2004); great britain, the work and organisation of the legal profession (stationary office books 1989); great britain, conveyancing by authorised practitioners (stationery office books 1989); great britain, contingency fees (hmso 1989); michael zander, ‘the thatcher government’s onslaught on the lawyers: who won?’ (1990) 24 international law 753, 759; laurel s terry, ‘the european commission project regarding competition in professional services’ (2009) 29 northwestern journal of international law and business1, 1-10; iain paterson and others, ‘economic impact of regulation in the field of liberal professions in different member states: regulation of professional services’ (ihs,2003) <http://ec.europa.eu/competition/sectors/professional_services/studies/prof_servi ces_ihs_part_1.pdf> accessed 11 july 2014; dca, competition and regulation in the legal services marketplace (cp(r2) 2003) 20; michael zander, lawyers and the public interest (weidenfeld nicolson 1968). 130 richard abel, english lawyers between market and state (oup 2004); judith l maute, ‘revolutionary changes to the english legal profession or much ado about nothing?’ (2006) 17 professional lawyer 1, 7; mary seneviratne, ‘consumer complaint and the legal profession: making self regulation work?’ (2000) 7 international journal of the legal profession 39; mary seneviratne, the legal profession: regulation and the consumer (sweet and maxwell 1999) ch 5; mark davies, ‘the regulatory crisis in the solicitors profession’ (2003) 6 legal ethics 2; robert baldwin and others, ‘regulating legal services: time for the big bang’ (2004) 67 mlr 787. 131 richard moorhead, ‘self-regulation and the market for legal services’ (cardiff working papers, 2004) <http://www.ccels.cf.ac.uk/archives/publications/2004/moorheadpaper.pdf> accessed 19 august 2014; mary seneviratne, ‘consumer complaint and the 120 http://ec.europa.eu/competition/sectors/professional_services/studies/prof_services_ihs_part_1.pdf http://ec.europa.eu/competition/sectors/professional_services/studies/prof_services_ihs_part_1.pdf http://www.ccels.cf.ac.uk/archives/publications/2004/moorheadpaper.pdf the denning law journal by a number of consumer organisations – who for a long time had been challenging the perceived monopoly of the legal profession. the oft’s interest in reform, buoyed by a number of developments in the eu and at the oecd also meant that the time was ripe for change.132 what has been overlooked by many commentators was the fact that the legal services bill was introduced to parliament at a time where the labour government was preoccupied with pursuing a neo-liberal, consumer friendly inspired deregulation agenda.133 the result being that the legal services bill was drafted along strictly economic lines.134 that is to say it was a piece of economic regulation in all but name. this in part explains the insertion of regulatory objectives – which are a drafting feature of regulation, and primarily economic regulation at that time. in essence, the consumer lobby and government were simultaneously pursuing an outcome which sought to improve the lot of the consumer through market means. to illustrate this point, the public interest, which had until 2002 appeared as a term in many of the documents evaluating the legal professions, was given legal profession: making self regulation work?’ (2000) 7 international journal of the legal profession 39. 132 oft, competition in professions (oft 328, 2001); oft, competition in professions – progress statement (oft 385, 2002) 133 stephen broebeck, ‘defining the consumer interest: challenges for advocates’ (2006) 40 journal of consumer affairs 177, 178; michelle everson, ‘legal construction of the consumer’ in frank trentmann (ed), the making of the consumer: knowledge, power and identity in the modern world (berg 2005); john clarke, janet newman and louise westmarland, ‘creating citizen-consumers? public service reform and (un)willing selves’ in sabine maasen and barbara sutter (eds), on willing selves: neoliberal politics and the challenge of neuroscience (palgrave macmillan 2007) 125–145; thomas frank, one market under god: extreme capitalism, market populism and the end of economic democracy (anchor books 2001) 25; wendy larner, ‘neo-liberalism: policy, ideology, governmentality’ (2000) 63 studies in political economy 5. 134 the select committee on regulators, uk economic regulators (hl 20062007, 189-i; the select committee on regulators, uk economic regulators (hl 2006-2007, 189-ii) the report focuses on economic regulators. whilst the lsa 2007did not necessarily set out to create a specific economic regulator, the legal services board has clearly acknowledged that it views a rather substantial part of its statutory remit as creating this responsibility. ‘if we’re not an economic regulator, why on earth did parliament write in all the stuff in the act about bringing in alternative business structures? what is that, if not breaking down barriers to entry in a form of economic regulation?’; legal futures ‘edmonds comes out fighting’ (legal futures, 27 april 2012) <http://www.legalfutures.co.uk/latest-news/edmonds-comes-out-fighting-indefence-of-lsb> accessed 23 july 2014. 121 http://www.legalfutures.co.uk/latest-news/edmonds-comes-out-fighting-in-defence-of-lsb http://www.legalfutures.co.uk/latest-news/edmonds-comes-out-fighting-in-defence-of-lsb consumer capture and the legal services act 2007 scant consideration after lord chancellor irving left office. the term public interest did not feature in any of the documents, reports or consultations in the period 20022007. as a result of the successful passage of the lsa 2007 this brought about a number of regulatory innovations which, in one way or another, can be seen in other pieces of regulation. similar to the lsa 2007 the communications act 2003 gave birth to a quango oversight regulator. studies reveal that there is a degree of similarity of approach in the ways in which these regulators regulate.135 in particular they hold themselves out to be evidenced based regulators. however, the approaches taken towards evidence and transparent regulation have yielded some interesting results. the hampton136 requirement for transparent decision making has, in line with the neo liberal inspired “new public management” approach sought methods by which regulatory decisions can be defended. as mentioned earlier in this paper – market failure coupled with cost benefit analysis is these regulators stock in trade. naturally this means that consumer interested policies are prioritised because these simplistic economic tools provide a methodology by which regulators can defend their decisions. moreover, it provides a panacea by which ideologies of the regulators may be aired.137 studies reveal that other regulators have been unable, unwilling or incapable of making, or taking, decisions 135 lunt (n 69). 136 the following five principles were identified by the better regulation task force in 1997 – otherwise known as the hampton principles. regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed. these principles are inserted specifically in the act at lsa 2007, pt 2, s 3(a). 137 as an example – see david edmonds: ‘we have a very simple goal – to reform and modernise the legal services marketplace in the interests of consumers, enhancing quality, ensuring value for money and improving access to justice across england and wales’; legal services board, ‘strategic plan 201215 business plan 2012/13’ (lsb, april 2012) <http://www.legalservicesboard.org.uk/news_publications/publications/pdf/busin ess_plan_201213_final.pdf> accessed 30 april 2014, 11; david edmonds: ‘we want regulators to step back from dictating the services offered and the structures of businesses operating in the legal services market to allow market forces to play a greater role. this we believe will help create a legal services market that is the right size for consumers.’ david edmonds, ‘regulatory standards and assessing regulatory performance’ (legal compliance bulletin, 2012) <http://www.legalservicesboard.org.uk/news_publications/speeches_presentation s/2012/legal_compliance_bulletin_article_issue_20_july_2012.pdf> accessed 30 april 2014. 122 http://www.legalservicesboard.org.uk/news_publications/publications/pdf/business_plan_201213_final.pdf http://www.legalservicesboard.org.uk/news_publications/publications/pdf/business_plan_201213_final.pdf http://www.legalservicesboard.org.uk/news_publications/speeches_presentations/2012/legal_compliance_bulletin_article_issue_20_july_2012.pdf http://www.legalservicesboard.org.uk/news_publications/speeches_presentations/2012/legal_compliance_bulletin_article_issue_20_july_2012.pdf the denning law journal orientated by the public interest or the citizen interest – for reasons to do with both the method of regulating and ideological predispositions.138 the draft legal services bill appeared without a regulatory objective to protect and promote the public interest. this was rectified in the house of lords after significant debate. in some regards the debates in the house of lords might well have ameliorated some of the effects of capture by the consumer lobby. the background to the lsa 2007 set its sights ideologically on promoting the consumer. this was synonymous with the labour government’s policy disposition at the time. therefore, from the start, the legislation has been orientated towards the consumer. this emphasis has, in a way proved rather difficult to rationalise when it comes to understanding the regulatory objectives. the explanatory notes to the act provide that the regulatory objectives are not ranked in terms of any importance. this is something that the lsb has been keen to point out. however, for anyone acquainted with regulatory theory – regulation should promote and protect the public interest. any argument to the alternative is wholly misguided. however, as has been noted in this paper, the public interest is an amorphous concept and apt to be manipulated in a way which can give rise to outcomes which are not in the public interest. in a sense, when it comes to the interpretation of the regulatory objectives – the public interest is easily subordinated or subverted. to understand the public interest requires much consideration from a regulator with ideological neutrality. david edmonds and chris kenny of the lsb have never recanted in their frequent speeches and presentations from eulogising about the wisdom of free market economics, the capacity of markets to operate largely free of regulation and finally the benefits of protecting consumers and consumerism. therefore, whilst it is clear that the ideological disposition of the lsb has pursued these ideas – it is in part, the drafting of the lsa 2007 that might be challenged for not more robustly framing the public interest as the principle purpose of regulation. the lsb’s own interpretation of the public interest which equates it with “public confidence” bears testament to the ease with which the regulator has been able to decide, largely unchallenged, what the public interest is.139 as has been rightly identified – even if “public confidence” 138 lord currie, chair of ofcom, was so incensed that he is on record as saying that the wording of the communications act confused the clear vision of ofcom as an economic regulator see: lord currie, (english national forum seminar speech, 7 july 2003) <http://media.ofcom.org.uk/2003/07/07/english-nationalforum-seminar/> accessed 12 august 2014. 139 legal services board, business plan 2010-2011 (lsb, 2010). <http://www.legalservicesboard.org.uk/news_publications/publications/pdf/final_ 123 http://media.ofcom.org.uk/2003/07/07/english-national-forum-seminar/ http://media.ofcom.org.uk/2003/07/07/english-national-forum-seminar/ http://www.legalservicesboard.org.uk/news_publications/publications/pdf/final_annual_plan_2010.pdf consumer capture and the legal services act 2007 were an appropriate encapsulation of the public interest, which it is not, the absence of a caveat that it must be “justifiable public confidence” leaves much to be desired.140 in short, structurally, in an assessment of capture of regulation – the lsa 2007 provides the conditions through which emphasis may be accorded to other regulatory objectives as opposed to the public interest. evidence of potential consumer capture by those advocating the consumer interest in the period leading to the lsa 2007 is again apparent in the text of the act. whereas the previous paragraph might be explained as emphasis being accorded to the consumer interest as a result of omission – that is to say insufficient attention was given to framing the public interest as the objective to which all other objectives must be subordinated – this section deals with a matter of commission. part 2 section 8 lsa 2007 requires the lsb to establish a legal services consumer panel to represent the interest of consumers.141 the lscp may make such arrangements as it thinks fit for committees established by the panel to give advice to the panel about matters.142 the lscp makes its own arrangements for procedures, committee structures and decision making. the lsb must consider any representation made to it by the lscp.143 if the lsb disagrees with the lscp on a view expressed or a proposal made, in the representations, it must give the lscp a notice to that effect stating reasons for disagreeing144 the lscp may publish such information as it thinks fit about any representation made by the lsb. in essence the lscp can say what it wishes and it has a right to publicly disagree with the lsb – even after the lsb has set out its reasons for disagreeing. the function of the lscp is “to carry out research for the board’ and ‘give advice to the board.” the lsb is mandated to consider any advice given and the results of any research carried out under this section.145 the lscp website notes: “we are located inside the legal services board which allows us to put across the consumer view from the beginning to the end of annual_plan_2010.pdf> accessed 15 august 2012 (this document sets out the lsb’s interpretation of the regulatory objectives). 140 david neuberger, ‘professional discipline – challenges for the future’ (keynote speech, disciplinary conference, 5 february 2010). 141 lsa 2007, pt 2, s 8. 142 lsa 2007, pt 2, s 9. 143 lsa 2007, pt 2, s 10(1). 144 lsa 2007, pt 2, s 10(2). 145 lsa 2007, pt 2, s 11(2). 124 http://www.legalservicesboard.org.uk/news_publications/publications/pdf/final_annual_plan_2010.pdf the denning law journal the policy-making process. however, the consumer panel is fully independent of the board – we commission and carry out independent research, advise the lsb on the interests of consumers, and scrutinise the lsb’s work on behalf of consumers.”146 the intricate details of how the lsb and lscp interact and how the latter is funded are set out in a memorandum of understanding signed in 2010. the point to be taken from the mere existence of the lscp – is that no other interest group is represented so completely and closely at the heart of the oversight regulator and legal services regulation. no public interest panel, rule of law panel or professional lawyering panel exists. suggestions were made that there should be a panel to represent the legal profession during the debates on the legal services bill in the house of lords – but this was roundly rejected.147 the extent to which there is a sharing of information and approach by the lscp and lsb – in part explains some of the arguments posited below. for present purposes, however, the structure of the legislation and the direct representation of the consumer at the heart of legal services regulation links to another point, first raised by ben lewis in the 1930’s concerning research undertaken into the national recovery board in america, an initiative created during the first new deal project.148 he drew attention to the following critical point: “to place any official in the position of having to represent both the public interest and the consumer interest is to make him both the judge of all parties and counsel for one of the parties at interest.”149 146 lsb and lscp, ‘memorandum of understanding between lsb and lscp’ (lsb, 14 january 2010) <http://www.legalservicesconsumerpanel.org.uk/publications/corporate_documen ts/documents/mou_lsb_consumerpanel.pdf> accessed 10 august 2014. 147 lord kingsland hl deb 15 may 2007 vol 692 pt 86. 148 the 1997 labour government used the ideological label ‘new deal’, based loosely on the ideas that underpinned the first ‘new deal’. 149 ben lewis, ‘the “consumer” and “public” interests under public regulation’ (1938) 46 journal of political economy 97, 100. 125 http://www.legalservicesconsumerpanel.org.uk/publications/corporate_documents/documents/mou_lsb_consumerpanel.pdf http://www.legalservicesconsumerpanel.org.uk/publications/corporate_documents/documents/mou_lsb_consumerpanel.pdf consumer capture and the legal services act 2007 it is perhaps no coincidence that after the failure of the financial system in 2007,150 there was a scramble to re-organise the architecture of the financial services authority, which had previously been responsible for a whole host of matters, including prudential regulation of the financial services industry in the wider public interest and consumer protection in the consumers’ interest.151 the financial services act 2010,152 comprehensively split these functions up to include the prudential regulatory authority (concentrating on economic and financial stability), the economic crime agency and the financial conduct authority (concentrating on the conduct of business regulation). the latter now has a much less consumer orientated role than originally undertaken by the financial services authority.153 the foregoing has sought to explain that there are a number of factors built into the fabric of the lsa 2007 which might explain why the product of regulation is now orientated towards the consumer interest. on this basis alone there remains an interesting avenue of work to assess the extent to which the lsa 2007 was itself the subject of capture by those with a consumer interest. the following moves away from considering these inherent features of the lsa 2007 to consider how the lsb has approached 3 instances of regulatory decision making. 5. consumer capture -referral fees, lay chairs and the letr referral fees involve payments by lawyers to organisations who are in a position to secure potential clients eg estate agents, insurance companies and trade unions. the subject of referral fees has been very 150 evan turgeon, ‘boom and bust for whom? the economic philosophy behind the 2008 financial crisis’ (2009) 4 virginia law and business review 1. 151 financial services act 2010. 152 ibid. 153 this was previously going to be named the consumer protection and markets authority. attention has been focused on the change of name in the following paper: – james perry et al, ‘the new uk regulatory landscape’ (2011) 84 compliance officer bulletin 1-33 whereby it was noted that ‘branding the cmpa as a consumer champion would be inappropriate, confusing and potentially dangerous. the job of a regulator is to ensure that regulation is effective and proportionate. that requires a balance between preventing abusive behaviour and ensuring that regulation does not impose excessive costs and restrictions. see also nathan willmott, ‘equipping the modern regulator: assessing the new regulatory powers under the financial services act 2010’ (2010) 78 compliance officer bulletin, 1-28. 126 the denning law journal controversial.154 following the oft “competition in the profession’s report” in 2000,155 the law society changed its regulations to allow referral fees in 2004, as this form of restriction was regarded as being anticompetitive.156 the rationale was that there was no apparent reason why an out-right ban on referral fees could be regarded as proportionate. it was argued that they would benefit access to justice by providing a less intimidating way of accessing lawyers. five years after the law society relaxed its regulatory rules to allow referral fees, the law society voted to support a ban on referral fees.157 in the interim period an industry of claims management companies emerged. certain law firms were buying blocks of claims that had been assembled by claims management companies. the law society’s objections to referral fees were based on the following arguments: (1) the financial relationship between lawyers and introducers had the potential to lead to the needs of the referrer being placed above those of the client; (2) law firms having become reliant on buying work from claims management companies had framed their business plans accordingly meaning that, through competition, claims management companies would sell work to the highest bidder. (3) given that there is no certainty that a claim would be successful, and that the cost of the referral fee had to be recovered, referral fees added unnecessary costs to legal advice because a percentage of cases have to be won to compensate for those that have not. this, it was argued, could lead to lower quality advice as lawyers would be forced to cut corners to deliver advice and make profits. (4) a further argument was made that referral fees cut choice and access to justice by pushing consumers to use referred lawyers, as opposed to the most appropriate lawyers and/ or the 154 john cooper, ‘referral fees: corrupt and criminal’ (2012) 176 criminal law and justice weekly 29; katherine dillon, ‘referral fees and pithe way forward?’ (2007) 4 journal of personal injury law 324. 155 oft, competition in professions (oft328, 2001). 156 paula rohan, ‘law society votes to allow referral fees’ (law society gazette, 9 january 2004) <http://www.lawgazette.co.uk/news/law-society-votesallow-referral-fees-0> accessed 22 july 2014; law society, ‘referral fees: an overview’ (the law society, 7 march 2006) <http://governance.lawsociety.org.uk/secure/meeting/201322/sra_board_paper _public_item_8_-_referral_fees.pdf> accessed 22 july 2014 157james dean, ‘law society council votes against referral fees’ (law society gazette online, 2009) <http://www.lawgazette.co.uk/news/law-society-councilvotes-against-referral-fees> accessed 22 july 2014. 127 http://www.lawgazette.co.uk/news/law-society-votes-allow-referral-fees-0 http://www.lawgazette.co.uk/news/law-society-votes-allow-referral-fees-0 http://governance.lawsociety.org.uk/secure/meeting/201322/sra_board_paper_public_item_8_-_referral_fees.pdf http://governance.lawsociety.org.uk/secure/meeting/201322/sra_board_paper_public_item_8_-_referral_fees.pdf http://www.lawgazette.co.uk/news/law-society-council-votes-against-referral-fees http://www.lawgazette.co.uk/news/law-society-council-votes-against-referral-fees consumer capture and the legal services act 2007 best quality.158 the law society noted that a number of personal injury claims were dealt with by what have been termed “personal injury factories”, employing a largely unqualified workforce. overall the law society deemed that referral fees were doing untold damage to the reputation of the profession.159 in light of the new competitive environment brought about by the lsa 2007 and changes to legal aid funding that lawyers were faced with in 2009, it would be easy to dismiss the claims of the law society as reactionary and protectionist. however, in 2009 lord justice jackson, undertaking a comprehensive review of civil litigation costs, advocated a ban on referral fees in personal injury cases for similar reasons to those outlined above. the report noted the inappropriateness of having victims of personal injuries traded as commodities. the report also argued that the culture of ambulance chasing had led to the commoditisation of claims160 leading to serious problems in the insurance industry. this was largely because the merits of claims were seldom assessed until they reached the hands of lawyers, and that even then many claims were pursued regardless.161 the cost of litigation meant that it was more cost effective for many insurance companies to settle cases rather than try and defend them. the problem was that this had resulted in an inexorable rise in insurance premiums. the report also highlighted the fact that referrers simply referred cases to the highest bidder and that this was inappropriate from the perspective of justice.162 the lsb began a review of referral fees in 2009 in response to the law society’s vote to ban them. in 2010 the lsb published proposals for a consultation. it then published the consultation. the executive summary in the consultation document noted that the lsb considered neither an outright ban nor a “free for all” to be appropriate, but that there should be increased transparency.163 it would appear that the board had made up its 158 the law society, ‘law society statement on referral fees’ (the law society, 2011) <http://www.lawsociety.org.uk/news/press-releases/law-society-statementon-referral-fees/> accessed 22 july 2014. 159 dean (n 157); the law society (n 158). 160 review of civil litigation costs: final report, (tso, january 2010) <http://www.judiciary.gov.uk/resources/jco/documents/reports/jackson-finalreport-140110.pdf> accessed 23 july 2014, 204-6. 161 ibid. 162 ibid. 163 legal services board, ‘referral fees, referral arrangements and fee sharing – discussion document on the regulatory treatment of referral fees, referral arrangements and fee sharing’ (lsb, september 2010) 128 http://www.lawsociety.org.uk/news/press-releases/law-society-statement-on-referral-fees/ http://www.lawsociety.org.uk/news/press-releases/law-society-statement-on-referral-fees/ http://www.judiciary.gov.uk/resources/jco/documents/reports/jackson-final-report-140110.pdf http://www.judiciary.gov.uk/resources/jco/documents/reports/jackson-final-report-140110.pdf the denning law journal mind before publishing the consultation. prior to publishing this consultation the lsb had asked the lscp to consider the subject. they produced a report,164 drawing on research conducted by vanilla research.165 this research had suggested that there was maybe a case for requiring more transparency when a client’s referral would result in the introducer receiving a payment. the substance of vanilla research’s research was a relatively small number of interviews and group discussions based on perceptions and preferences about making a claim. based on this arguably limited research the lscp made a case that referral fees should be retained. they did not seek to assess anything other than the interests of the consumer. the lsb also commissioned charles river associates166 to consider a cost benefit case for referral fees. their methodology was based on market failure theory. charles river associates reported no problems with conveyancing referrals. they found no evidence to suggest that referral fees in personal injury cases were causing consumer detriment and advised that referral fees were unlikely to be problematical.167 the cost benefit analysis included in the report makes no reference to factors extending beyond consumer detriment and the consumer interest.168 the lsb sought views on its 2010 consultation and on the conclusions that it had initially arrived at, based on the lscp’s opinion and the charles river report. a report combining these findings, with <http://www.legalservicesboard.org.uk/what_we_do/pdf/20100929_referral_fees. pdf> accessed 29 july 2014. 164 vanilla research is a small market research consultancy specialising in consumer perceptions. vanilla research, ‘referral arrangements research’ (vanilla research, march 2010) <http://www.legalservicesconsumerpanel.org.uk/publications/research_and_repor ts/documents/vanillaresearch_consumerresearch_referralarrangements.pdf accessed > accessed 29 july 2014. this report was based on ten group discussions with consumers or potential consumers. 165 legal services consumer panel, ‘referral fees’ (lscp, may 2010) <http://www.legalservicesconsumerpanel.org.uk/publications/research_and_repor ts/documents/consumerpanel_referralarrangementsreport_final.pdf > accessed 29 july 2014. 166 charles river associates ‘cost benefit analysis of policy options related to referral fees in legal services’ (charles river associates, may 2010) <http://governance.lawsociety.org.uk/secure/meeting/185852/consultant_report_ on_referral_fees_may2010.pdf> accessed 22 july 2014. 167 ibid. 168 charles river associates (n 166). 129 http://www.legalservicesboard.org.uk/what_we_do/pdf/20100929_referral_fees.pdf http://www.legalservicesboard.org.uk/what_we_do/pdf/20100929_referral_fees.pdf http://www.legalservicesconsumerpanel.org.uk/publications/research_and_reports/documents/vanillaresearch_consumerresearch_referralarrangements.pdf http://www.legalservicesconsumerpanel.org.uk/publications/research_and_reports/documents/vanillaresearch_consumerresearch_referralarrangements.pdf http://www.legalservicesconsumerpanel.org.uk/publications/research_and_reports/documents/consumerpanel_referralarrangementsreport_final.pdf http://www.legalservicesconsumerpanel.org.uk/publications/research_and_reports/documents/consumerpanel_referralarrangementsreport_final.pdf http://governance.lawsociety.org.uk/secure/meeting/185852/consultant_report_on_referral_fees_may2010.pdf http://governance.lawsociety.org.uk/secure/meeting/185852/consultant_report_on_referral_fees_may2010.pdf consumer capture and the legal services act 2007 those of various stakeholders was published in september 2010.169 in this report, the lsb posed a series of further questions and asked for stakeholders to respond.170 drawing heavily on the lscp and the report prepared by charles river, the lsb argued that it had developed robust evidence upon which to base its opinions. the final decision of the lsb was to not recommend banning referral fees, but instead to introduce requirements for transparency. the requirement for transparency meant that consumers would have to be apprised of the fact that a referral fee had been paid by a lawyer to the intermediary that introduced the lawyer to the consumer. this decision was published in may 2011.171 the recommendation for enhanced transparency has since been regarded as both aspirational and unworkable.172 however, the extent to which the lsb followed the advice proffered by the lscp is clear to see from the following excerpt from a letter sent by chairman david edmonds to the then chair of the lscp, diana hayter: “your advice to us has been invaluable and was central to the proposals we consulted on in september. your advice set out a persuasive analysis of the impact of referral fees on consumers and was backed by empirical research which has ensured that consumers’ views were fed into the process directly. your conclusion of ‘reveal, regulate so retain’ was the basis for our discussions and has remained fundamental to our final decisions on referral fees.”173 169 legal services board, ‘referral fees, referral arrangements and fee sharing – discussion document on the regulatory treatment of referral fees, referral arrangements and fee sharing’ (lsb, september 2010) <http://www.legalservicesboard.org.uk/what_we_do/pdf/20100929_referral_fees. pdf> accessed 27 july 2014. 170 ibid. 171 legal services board, ‘referral fees, referral arrangements and fee sharing decision document’ (lsb, may 2011) <http://www.legalservicesboard.org.uk/what_we_do/consultations/closed/pdf/201 10527_referral_fees_decision_press_release_final4.pdf> accessed 24 july 2014 172 legal futures, ‘straw: legal services board report on referral fees was “gobbledegook”’ (legal futures, 29 september 2011) < http://www.legalfutures.co.uk/news/straw-legal services board-report-onreferral-fees-was-gobbledegook> accessed 12 july 2014. 173 legal services board, ‘letter from david edmonds to dianna hayter on referral fees’ (lsb, 26 may 2011) <http://www.legalservicesboard.org.uk/what_we_do/consultations/closed/pdf/201 10526_letter_david_edmonds_to_dianne_hayter.pdf> accessed 14 august 2014. 130 http://www.legalservicesboard.org.uk/what_we_do/pdf/20100929_referral_fees.pdf http://www.legalservicesboard.org.uk/what_we_do/pdf/20100929_referral_fees.pdf http://www.legalservicesboard.org.uk/what_we_do/consultations/closed/pdf/20110527_referral_fees_decision_press_release_final4.pdf http://www.legalservicesboard.org.uk/what_we_do/consultations/closed/pdf/20110527_referral_fees_decision_press_release_final4.pdf http://www.legalfutures.co.uk/news/straw-lsb-report-on-referral-fees-was-gobbledegook http://www.legalfutures.co.uk/news/straw-lsb-report-on-referral-fees-was-gobbledegook http://www.legalservicesboard.org.uk/what_we_do/consultations/closed/pdf/20110526_letter_david_edmonds_to_dianne_hayter.pdf http://www.legalservicesboard.org.uk/what_we_do/consultations/closed/pdf/20110526_letter_david_edmonds_to_dianne_hayter.pdf the denning law journal on the 9 september 2011, the government announced that referral fees in personal injury cases should be banned and that it was taking steps to bring about legislation to this effect. in a written ministerial statement, jonathan djanogly174 noted that the current arrangements had led to the growth of an industry that actively encouraged individuals to bring cases, regardless of the merits of their claim, and spoke of the effect on insurance premiums. he also spoke of the serious effect on the reputation and integrity of the legal profession.175 on 26 october 2011, ken clarke176 announced that he was tabling amendments to the legal aid, sentencing and punishment of offenders bill to ban referral fees in connection with personal injury claims.177 the amendment was agreed to. section 56 of the legal aid, sentencing and punishment of offenders act 2012 now prohibits referral fees in personal injury claims.178 the law society and the bar, along with others, including a cross section of the government, remains committed to banning referral fees outright.179 it is clear from the foregoing that the combination of the lscp’s research and the cost benefit analysis undertaken by the economic and business consulting firm, charles river associates, was deemed sufficient to address the public interests associated with referral fees.180 in particular, in arriving at their decision, the lsb noted: “our scrutiny has been focused on the regulatory treatment of referral fees, assessed against the regulatory objectives set out in section 1 of the legal services act 2007. we do not offer a view 174 parliamentary undersecretary of state for justice. 175 ministry of justice press release, better protection from intruders and excessive compensation costs, 26 october 2011. <http://www.justice.gov.uk/news/features/feature261011a> accessed 24 july 2014. 176 secretary of state for justice and lord chancellor. 177 hc deb 1 november 2011 cc822-849. 178legal aid, sentencing and punishment of offenders act 2012 c 10 pt 2 s 60 179 the bar council, ‘bar council welcomes move to ban referral fees but calls for further action’ (bar council, 9 september 2011) <http://www.barcouncil.org.uk/media-centre/news-and-pressreleases/2011/september/bar-council-welcomes-move-to-ban-referral-fees-butcalls-for-further-action/> accessed 22 july 2014; catherine baksi, ‘oft calls for referral fee payment regulation’ ( law society gazette, 25th february 2014) <http://www.lawgazette.co.uk/news/law-societycouncil-votes-against-referral-fees> accessed 22 july 2014. 180 legal services board (n 171). 131 http://www.justice.gov.uk/news/features/feature261011a http://www.barcouncil.org.uk/media-centre/news-and-press-releases/2011/september/bar-council-welcomes-move-to-ban-referral-fees-but-calls-for-further-action/ http://www.barcouncil.org.uk/media-centre/news-and-press-releases/2011/september/bar-council-welcomes-move-to-ban-referral-fees-but-calls-for-further-action/ http://www.barcouncil.org.uk/media-centre/news-and-press-releases/2011/september/bar-council-welcomes-move-to-ban-referral-fees-but-calls-for-further-action/ http://www.lawgazette.co.uk/news/law-society-council-votes-against-referral-fees http://www.lawgazette.co.uk/news/law-society-council-votes-against-referral-fees consumer capture and the legal services act 2007 on any wider public policy arguments for their retention or abolition.”181 this assertion, coupled with the consumer and economic research relied on by the lsb rather begs the question what does the lsb actually consider the regulatory objective of ‘protecting and promoting the public interest’ to involve? there was no reference to the public interest in any of the documents published by the lsb. the force of the arguments from the law society, the bar,182 lord justice jackson, the association of british insurers, the former lord chancellor jack straw183 and, in part, the office of fair trading were apparently not considered. arguably they reflected the public interest, whereas the lsb seemingly favoured the findings of the lscp and the research from charles river associates.184 this assertion is bolstered by the following response to a question posed by a member of the house of commons justice committee regarding the lsb’s approach to referral fees and whether the board had been complacent in the approach it had taken to referral fees. david edmonds, chair of the board responded as follows: “i think ‘complacency’ is not a word i would use. when my board was set up, we instituted a consumer panel that did a significant tranche of research into this area and produced a report that said they could not see consumer detriment arising from the administration of referral fees in the legal services sector. the secretary of state and parliament took a different view in terms of 181 ibid. 182 bar council, ‘joint response of the bar council and criminal bar association to the legal services board discussion document on the regulatory treatment of referral fees, referral arrangements and fee sharing’ (legal services board, 21 december 2010) <http://www.legalservicesboard.org.uk/what_we_do/consultations/closed/pdf/join t_response_of_the_bar_council_and_criminal_bar_association.pdf > accessed 29 july 2014. 183 legal futures (n 172). 184 paradoxically, despite the ban, it is likely that is that alternative business structures, it will be easy to circumvent the referral fee ban in the future. john hyde, ‘sra powerless to stop abs circumventing referral fee ban’ (law society gazette, 13 june 2012) <http://www.lawgazette.co.uk/news/srapowerless-stop-abss-circumventing-referral-ban> accessed 29 july 2014. 132 http://www.legalservicesboard.org.uk/what_we_do/consultations/closed/pdf/joint_response_of_the_bar_council_and_criminal_bar_association.pdf http://www.legalservicesboard.org.uk/what_we_do/consultations/closed/pdf/joint_response_of_the_bar_council_and_criminal_bar_association.pdf http://www.lawgazette.co.uk/news/sra-powerless-stop-abss-circumventing-referral-ban http://www.lawgazette.co.uk/news/sra-powerless-stop-abss-circumventing-referral-ban the denning law journal personal injury, and that part of the referral fee process has now been banned.” 185 “i am both defensive and protective of our stance on referral fees. as a regulator with an interest in economic regulation, i like to see markets operating in a way in which markets can operate, which is that referrals are made, satisfactory solutions are found and you don’t intervene where there is no evidence that you should intervene. i guess there is a degree not of complacency but of agnosticism on the part of my board, fuelled by the report of my own consumer panel. if anyone was going to complain about, or find evidence of, consumer detriment, it would be in the research that they commissioned in this area, and they didn’t find any. that is why, after a lengthy debate, my board took the decision that we did take. as you have seen, the minister took a different view over personal injury.”186 this response evidences the strong ideological commitment that the lsb has adopted towards the market. it also draws attention to the close connection between the lsb and the lscp. the attention seemingly paid to the lscp’s findings affirms, in part, some of the incidents of cultural capture outlined in this paper. in terms of the ingredients that carpenter suggests for a finding of capture, if the fact that the legal aid and sentencing and punishment of offenders act 2012 is an expression of the public interest, then the regulatory decisions taken by the lsb shows a policy shift away from the public interest and towards industry (special) interest. the position adopted by the lscp, their research and the magnitude of their desire to see referral fees not banned shows action and intent by a special interest in pursuit of the policy shift sufficiently effective to have plausibly caused an appreciable shift in the regulator’s (lsb) position. lay chairs of approved regulators regulatory boards the second decision taken by the lsb relates to the changes that they have made to the internal governance rules for all authorised regulators. prior to the change of these rules on the 20 february 2014 the authorised regulators were able to appoint to their regulatory boards, following general principles, anyone. that is to say that there was no bar 185 house of commons justice committee, the operation of the legal services board (2013 hc 963-1) 14. 186 ibid. 133 consumer capture and the legal services act 2007 on who the chairperson might be – provided that they were qualified in terms of the skills, experience and qualifications. therefore, the chair of the regulatory boards might be a lawyer, it might be a non-lawyer, it might be a former practitioner whose days of practising were over as they progressed their career. now, the chair of the boards can only be a layperson. lawyers, and those with a background in the law need not apply. a suggestion that the chairperson of approved regulators boards must be a lay person was made in 2009 by the lscp without any empirical or theoretical basis.187 the suggestion was not adopted by the lsb who cited it, at the time, as “a step too far.”188 as a result of what the lsb perceived as difficulties dealing with the sra & bsb in september 2013 they mooted a change of the internal governance rules. the then strategy director, crispin passmore, presented a paper at the lsb board on the 11september 2013189 where he explained the following: “the lsb has been concerned that the regulators are not consistently committed to the liberalisation of their regulatory approaches. whilst the key regulators have taken significant steps forward in terms of allowing abs, shifting their models towards outcomes and re-focusing on risk based supervision, progress is still held back by traditions of barriers to entry and cultural ties to each regulator’s ‘bit’ or title within the legal profession. this manifests in a number of ways in both policy substance and governance arrangements.”190 187 dianne hayter, ‘response to the lsb consultation on ‘internal governance & practising fees rules’ (lscp, 30 october 2009) <http://www.legalservicesconsumerpanel.org.uk/publications/consultation_respo nses/documents/2009-10-30_lsb_consultationinternalgovernancerules.pdf> accessed 17 august 2014; 188 crispin passmore, ‘lay chairs of regulatory boards’ (lsb board meeting papers, 11 september 2013) <http://www.legalservicesboard.org.uk/about_us/board_meetings/pdf/13_59_chai rs_of_regulatory_bodies.pdf> accessed 15 august 2014, 4. 189 ibid. 190 passmore (n 188) the paper cites the following as reasons for the rule change: ‘sra reluctance to remove separate business rule; sra approach to in-house solicitors ;sra approach to multi-disciplinary partnerships; sra pace of abs authorisation and over emphasis on looking like they are controlling entry (when in actual fact less than 5 abs licence have been refused).; sra and others’ resistance to single appeals mechanism ;bsb reluctance to embrace non-barrister leading entities; bsb refusal to enforce against outcomes; regulators’ scepticism about data transparency in general and failure to make the data they have in a 134 the denning law journal he went on to further note that: “the executive assesses that this reticence to embrace the better regulation principles can put the regulatory objectives at risk. in particular, the continuing tendency to threaten innovation and undermine competition, thus limiting consumer choice and compromising access to justice” 191 mr passmore also picked up on the attacks that the lsb had received about its approach to regulating. one of the most outspoken critics of the lsb’s approach has been baroness ruth deech, who, as it happens, has for the last 5 years been chairwoman of the bar standards board: “the board may also wish to note the level of commentary about the lsb’s relentless focus on consumer interests. this has been described as a ‘cult of consumerism’ and that an ‘excessive focus on the consumer interest may be to the detriment of the professional interests and standards upheld by the lawyers’”. 192 the following quote from mr passmore’s paper leaves the motive behind the restriction on allowing lawyers to become the chairperson of the approved regulator’s board in little doubt. “the question is whether further changes to board composition would help build greater proactivity in this area on the part of regulators themselves. overly strong ties to history, culture and practice of self regulation by each part of the regulatory community are a significant drag on regulators complying with the better regulation principles and thus may put the regulatory objectives at risk. it therefore seems probable that the tendency of the regulators to hold on to a ‘what they know’ preference would be diminished by insisting on ‘a fresh pair of eyes’ at chair level, range of areas widely available to enable independent analysis (so called big data analysis) ;regulators’ handbooks remaining complicated and prescriptive; tendency to offer very detailed guidance in relation to changes which can be taken as mandatory; tendency to involve complex sub-committee structures to scrutinise the microrather than macro – impact of proposed changes.’ 191 ibid. 192 ibid. 135 consumer capture and the legal services act 2007 provided that the boards as a whole have the right balance of skills and knowledge around the table.” 193 these statements, along with others made by the lsb,194 dismissing the points made by members of the legal profession, does signal a rather narrow minded approach to discourse and decision making. lord neuberger has made the point that it is a rather peculiar state of affairs to dismiss points that have been constructively and intelligently made by educated, qualified people, who are presumably capable of understanding the boundaries of public life and suppressing self – interest.195 in all of this – there is a delicious irony that baroness deech has had a very successful career outside of the law, in public life, choosing never to practise as a lawyer. she would, now, on a very minor technicality be prevented from being chairwoman of the bsb under the rules introduced by the lsb in february 2014. however, to all intents and purposes she is cut from the same cloth that many definitively lay chair people are cut from. what is interesting to this paper is how the policy articulated in crispin passmore’s briefing, furthering the ideas suggested by the lscp was translated into a regulatory decision, which as noted, was adopted. the following tracks the developments. further to a resolution by the lsb in october 2013 a consultation was launched on a fast track process, meaning that there would only be 6 weeks for consultees to respond. the consultation closed on the 19th november 2013. 14 of the 17 respondents to the consultation indicated strong or very strong opposition to the proposed rule change.196 two of the three who agreed with the rule 193 ibid. 194 ‘we want {legal professions} regulators to step back from dictating the services offered and the structures of businesses operating in the legal services market to allow market forces to play a greater role. this we believe will help create a legal services market that is the right size for consumers.’ david edmonds, ‘regulatory standards and assessing regulatory performance’ (legal compliance bulletin, 2012) <http://www.legalservicesboard.org.uk/news_publications/speeches_presentation s/2012/legal_compliance_bulletin_article_issue_20_july_2012.pdf> accessed 22 july 2014. 195 neuberger, (n 40) 196 lsb, ‘submissions received to the consultation on lay chairs for front line regulators’ (lsb, 2013) <http://www.legalservicesboard.org.uk/what_we_do/consultations/closed/submis sions_received_to_the_consultation_on_lay_chairs_for_front_line_legal_ regulators.html> accessed 14 july 2014. 136 http://www.legalservicesboard.org.uk/news_publications/speeches_presentations/2012/legal_compliance_bulletin_article_issue_20_july_2012.pdf http://www.legalservicesboard.org.uk/news_publications/speeches_presentations/2012/legal_compliance_bulletin_article_issue_20_july_2012.pdf http://www.legalservicesboard.org.uk/what_we_do/consultations/closed/submissions_received_to_the_consultation_on_lay_chairs_for_front_line_legal_regulators.html http://www.legalservicesboard.org.uk/what_we_do/consultations/closed/submissions_received_to_the_consultation_on_lay_chairs_for_front_line_legal_regulators.html http://www.legalservicesboard.org.uk/what_we_do/consultations/closed/submissions_received_to_the_consultation_on_lay_chairs_for_front_line_legal_regulators.html the denning law journal change were which? and the lscp. it is perhaps no surprise that the lscp agreed, given that they were the intellectual brainchild of the ideas set out in the lsb’s position paper.197 no clearer evidence is forthcoming than the following two statements made by the lsb that they had no evidence for this statutory change. this paucity of evidence was picked up by the 14 consultees who did not agree with the lsb. “we acknowledge that this was ultimately a matter of judgement based on our nearly four years of experience rather than on quantifiable evidence. indeed, the very nature of the issues being considered here makes it unlikely that quantifiable evidence would be available” 198 “the proposed change was built on the lsb’s view that although the aars have made significant progress by accepting the principle of independent regulation and structurally separating regulatory functions out from their representative arms, the regulatory bodies remain tied too closely to the individual branches of the profession that they oversee.”199 it takes something of a leap of faith for a regulator who prides itself on being an “evidence based regulator” to jump from no evidence to arrive at the foregoing statements. it is suggested that the lsb saw an opportunity to speed up the pace of change in the legal services market as the terms of office of the chairs of the sra and bsb end in december 2014. this is aptly demonstrated in the following statements: “in consultation we highlighted our view that this proximity is detrimental to both the public and consumer interest. we also 197 lsb, ‘chairs of regulatory boards – consultation on an amendment to the internal governance rules to require that the chairs of the boards of the regulatory arms of each applicable approved regulator be a lay person’ (lsb, 2013) <http://www.legalservicesboard.org.uk/what_we_do/consultations/pdf/lsb_consul tation_on_lay_chairs_08_10_13.pdf> accessed 16 august 2014. 198 lsb, ‘chairs of regulatory boards, summary of responses, decision document on a proposed amendment to the internal governance rules to require that the chairs of boards of the regulatory arms of each applicable approved regulator be a lay person’ (lsb, 20 february 2014) <http://www.legalservicesboard.org.uk/what_we_do/consultations/closed/pdf/201 40219_lsb_lay_chairs_summary_of_responses_and_decision.pdf> accessed 14 july 2014, 7. 199 ibid 6. 137 http://www.legalservicesboard.org.uk/what_we_do/consultations/pdf/lsb_consultation_on_lay_chairs_08_10_13.pdf http://www.legalservicesboard.org.uk/what_we_do/consultations/pdf/lsb_consultation_on_lay_chairs_08_10_13.pdf http://www.legalservicesboard.org.uk/what_we_do/consultations/closed/pdf/20140219_lsb_lay_chairs_summary_of_responses_and_decision.pdf http://www.legalservicesboard.org.uk/what_we_do/consultations/closed/pdf/20140219_lsb_lay_chairs_summary_of_responses_and_decision.pdf consumer capture and the legal services act 2007 outlined our view that overly strong ties to the history, culture and rules of professional selfregulation within specific sub-groups can act as a significant drag on the better regulation principles and therefore put the regulatory objectives at risk. in particular this negatively impacts on the objective of promoting competition in legal services in order to improve innovation, value, consumer choice and therefore access to justice.” 200 “further, we outlined our view that requiring the chairs of the regulatory boards to be lay would be likely to provide a proportionate route to greater regulatory independence. in proposing this change we acknowledge the crucial role played by chairs in leading their boards. in many cases, an inevitable effect of membership of a profession will be to influence behaviour when chairing a regulator. given the importance of the chair and the greater time and support s/he has to shape discussion and consider issues, this influence could be disproportionately important.” 201 given the lsb holds itself out to be an evidence based regulator it is strange that they did not consult any evidence. it is rather questionable why a much broader body of literature on the subject was not considered. this literature draws attention to the way in which lay involvement can, and does skew the decision making process of a board. a portion of this work specifically addresses the questions of how lay involvement, especially where understanding of the matter at hand is important, contributes to ineffective decision making.202 the timing of the lsb’s decision also raises questions about its attitude to regulatory decision making. at the same time that the board 200 ibid 6. 201 ibid 6. 202 christine hogg and charlotte williamson, ‘whose interests do lay people represent? towards an understanding of the role of lay people as members of committees’ (2001) 4 health expectations 2; william rothstein and linh phuong, ‘ethical attitudes of nurse, physician, and unaffiliated members of institutional review boards’ (2007) 39 journal of nursing scholarship 75; guy holburn and richard van den bergh, ‘consumer capture of regulatory institutions: the creation of public utility consumer advocates in the united states’ (2006) 126 public choice 45; orit dayagi-epstein, ‘representation of consumer interests by consumer associations – salvation for the masses? (2007) 3 the competition law review 209; les carlson, ‘use, misuse, and abuse of content analysis for research on the consumer interest’ (2008) 42 the journal of consumer affairs 100. 138 the denning law journal was pursuing these changes, a high profile story was unravelling at the co-op which revealed some serious problems of lay involvement in boards, and the problems that a lay chair can bring. it is ultimately not good practice to pick on individual stories as evidence of anything. however, given the fact that 2 high profile investigations203 were commissioned investigating the governance arrangements of the co op, it might have been pragmatic to reflect on these findings – which, as it happens, drew attention to the problems brought about by an unqualified and largely lay board with a lay chair.204 this example demonstrates a narrowness of approach by the lsb and a wholesale casual connection between the policies initiated by the lscp – right the way through to execution, despite vociferous opposition by those who responded to the consultation. it is possible to detect right through the decision document, published by the lsb, that actually what it wanted to do was to pursue its agenda without steadfast opposition to its plans. the document cites a rich culture and tradition of the professions as reasons that progress is delayed. this in a way demonstrates a counter cultural ideology and some of the features of cultural capture. statutory guidance and the legal education training review (letr) the third decision taken by the lsb considered by this paper relates to its decision to use s 162 lsa 2007 to produce statutory guidance on how the “approved regulators” should make regulatory arrangements for education and training. the background to the letr, in and of itself, tells a story. the lsb originally planned to conduct the review, however, it 203 the co-operative group, ‘report of the independent governance review – the co-operative group’ (lord paul myners, 7 may 2014) <http://www.cooperative.coop/pagefiles/989348879/report_of_the_independent_governance_r eview.pdf> accessed 14 july 2014; the co-operative group, ‘failings in management and governance – report of the independent review into the events leading to the co-operative bank’s capital shortfall’ (sir christopher kelly, 30 april 2014) <http://www.thekellyreview.co.uk/documents/168461-07kelly%20review-final%20report-30apr14.pdf> accessed 14 july 2014. 204 the kelly report is replete with criticisms about the lay board – which he asserted did not fully understand the requirements of a regulated bank (page 9), that the board was oblivious to a number of issues (page 9), that there was a failure of stewardship which was an inevitable consequence of the limited relevant experience of the individual board members, that there was a serious problem because the cbg failed to have relevant banking experience (page 10), that the board was hampered by the lack of banking experience of the chair – page 11. 139 http://www.co-operative.coop/pagefiles/989348879/report_of_the_independent_governance_review.pdf http://www.co-operative.coop/pagefiles/989348879/report_of_the_independent_governance_review.pdf http://www.co-operative.coop/pagefiles/989348879/report_of_the_independent_governance_review.pdf http://www.thekellyreview.co.uk/documents/168461-07-kelly%20review-final%20report-30apr14.pdf http://www.thekellyreview.co.uk/documents/168461-07-kelly%20review-final%20report-30apr14.pdf consumer capture and the legal services act 2007 was persuaded to let the sra, bsb and the as then ilex professional standards board to take the lead under the lsb’s oversight.205 it has been argued that this change occurred amidst allegations that the lsb was at risk of going beyond its oversight role.206 the then chairman of the lsb set out his support and expectations for the report in the annual lord upjohn lecture.207 the letr took longer than expected to produce its final report. during the research phase many consultations and calls for evidence were made.208 throughout the research phase the lscp made a formal response to the consultation.209 this response by the lscp set out a powerful vision for what education and training should look like. in addition, the lscp took the liberty of writing to the head of the letr research team, professor julian webb, urging the team to “put the interest of consumers at the forefront of its recommended scheme”. moreover, the lscp urged the team to take the once in a generation opportunity to produce a ‘bold blueprint’ for change in legal education and training.210 they asserted that ‘vested interests’ were striving to water it down.211 205 legal futures, ‘edmonds to back education and training review as lsb role is curbed’ (legal futures, 18 november 2010) <http://www.legalfutures.co.uk/latest-news/edmonds-to-back-education-andtraining-review-as-lsb-role-is-curbed/print/> accessed 14 august 2014. 206 ibid. 207 david edmonds, ‘training the lawyers of the future – a regulator’s view’ (lsb, 19 november 2010) <http://www.legalservicesboard.org.uk/news_publications/speeches_presentation s/2010/de_lord_upjohn_lec.pdf> accessed 16 august 2014. 208 letr, ‘setting standards, the future of legal services education and training regulation in england and wales’ (letr, june 2013) <http://letr.org.uk/wp-content/uploads/letr-report.pdf> accessed 16 august 2014. 209 lscp ‘response to the letr consultation on legal education and training’ (lscp, 21 may 2012) <http://www.legalservicesconsumerpanel.org.uk/publications/consultation_respo nses/documents/2012-05-21letrsubmission.pdf> accessed 17 august 2014. 210 elisabeth davies, ‘letter from legal services consumer panel to prof julian webb – legal education review team’ (lscp, 23 october 2012) <http://letr.org.uk/wp-content/uploads/legal-services-consumer-panel1.pdf> accessed 14 august 2014. 211 legal futures, ‘be bold and ignore the vested interests letr told’ (legal futures, 25 october 2012) <http://www.legalfutures.co.uk/latest-news/be-boldignore-vested-interests-letr-told/print/> accessed 14 july 2014. 140 http://www.legalfutures.co.uk/latest-news/edmonds-to-back-education-and-training-review-as-lsb-role-is-curbed/print/ http://www.legalfutures.co.uk/latest-news/edmonds-to-back-education-and-training-review-as-lsb-role-is-curbed/print/ http://www.legalservicesboard.org.uk/news_publications/speeches_presentations/2010/de_lord_upjohn_lec.pdf http://www.legalservicesboard.org.uk/news_publications/speeches_presentations/2010/de_lord_upjohn_lec.pdf http://letr.org.uk/wp-content/uploads/letr-report.pdf http://www.legalservicesconsumerpanel.org.uk/publications/consultation_responses/documents/2012-05-21letrsubmission.pdf http://www.legalservicesconsumerpanel.org.uk/publications/consultation_responses/documents/2012-05-21letrsubmission.pdf http://letr.org.uk/wp-content/uploads/legal-services-consumer-panel1.pdf http://www.legalfutures.co.uk/latest-news/be-bold-ignore-vested-interests-letr-told/print/ http://www.legalfutures.co.uk/latest-news/be-bold-ignore-vested-interests-letr-told/print/ the denning law journal the letr team published its findings on 25 june 2013212 and it is no understatement that the reaction to it was one that was damped with faint praise.213 whilst it was a thoroughly researched document, producing a range of sensible recommendations, it did not, and was perhaps never going to, seize the once in a generation opportunity to fundamentally change legal education and training that the lscp would have liked. arguably the research did not suggest that this was necessary. in many regards the current system is not as broken as some might perceive and thus does not require the sorts of developments argued by some as necessary. writing after the publication neil wightman, for and on behalf of the lscp argued that a major opportunity had been missed – asserting that “it would have been wonderful to report that the way forward is to redesign legal education and training around the consumer”. he should perhaps be reminded that the law and its practise do not revolve solely around the consumer (however the consumer’s interest might be constructed). the rule of law, the public interest and a host of other imperatives are, it is suggested, equally important factors for consideration. the lscp would have liked to have seen the following: active quality assurance by regulators, periodic re-accreditation of practitioners, on-going competency checks, updated professional service standards and skills, training and education designed and delivered around the consumer, a system of cpd that is fit for purpose and the creation of new access points to improve social mobility.214 the reason for pointing this out is that the lscp were clearly disappointed with the letr as were the lsb. in a briefing paper supplied to the lsb’s board meeting on the 24 july 2013 it noted: “the final report starts from the position that the current system of education and training is fit for purpose. it therefore proposes incremental change, backed up by the necessary infrastructure to enable more significant change over time. this conclusion has been reached on the basis of the evidence provided to the review 212 letr (n 208) 213see in particular richard moorhead, ‘why everyone is happy and no one is smiling’ (lawyer watch, 26 june 2013) <http://lawyerwatch.wordpress.com/2013/06/26/letr-why-everyone-is-happy-andno-one-is-smiling/> accessed 16 august 2014. 214 neil wightman, ‘lscp panel member neil wightman’s reaction to the letr.’ (lscp, 25 june 2013) <http://www.legalservicesconsumerpanel.org.uk/how_can_we_help/blog/blog_en try_guest_june_2013.html> accessed 16 august 2014. 141 http://lawyerwatch.wordpress.com/2013/06/26/letr-why-everyone-is-happy-and-no-one-is-smiling/ http://lawyerwatch.wordpress.com/2013/06/26/letr-why-everyone-is-happy-and-no-one-is-smiling/ http://www.legalservicesconsumerpanel.org.uk/how_can_we_help/blog/blog_entry_guest_june_2013.html http://www.legalservicesconsumerpanel.org.uk/how_can_we_help/blog/blog_entry_guest_june_2013.html consumer capture and the legal services act 2007 which focuses heavily on the views of the profession. while we would support the need for evidence there is a perception that the report and its conclusions rely too heavily on the views of the profession and do not give enough weight to the consumer perspective (as is the view of the legal services consumer panel).”215 as statements go – the one pertaining to the fact that the evidence relied upon by the letr is heavily focused on the views of the profession is open to question. a casual perusal of the robust academic sources relied upon by the letr dispels this notion. this is before the wealth of submissions to the various calls for evidence and consultations are considered. in attempting to explain this statement – the lsb’s subsequent actions tell its own story. in the lsb’s board meeting that the above briefing paper was received at, the board resolved to propose draft statutory guidance regarding education and training. this draft statutory guidance was to be produced for its september board meeting.216 at the september board meeting of the lsb it resolved to put this draft statutory guidance out for consultation.217 the rationale for this statutory guidance was as follows: “in our view statutory guidance provides a clear and transparent way to set out the lsb’s views in this area. it also provides a solid basis for which they could review progress or take action if they found evidence of detriment to the regulatory objectives or better regulation principles.”218 215 crispin passmore and alex roy, ‘letr briefing paper (13)54’ (lsb, 24 july 2014) <http://www.legalservicesboard.org.uk/about_us/board_meetings/pdf/13_54_le tr_report_briefing.pdf> accessed 17 august 2014. 216 ibid; legal services board ‘minutes of a meeting of the legal services board on 24 july 2013’ (lsb, 26 july 2013) <http://www.legalservicesboard.org.uk/about_us/board_meetings/pdf/20130724_ minutes.pdf> accessed 17 august 2014. 217 legal services board ‘minutes of a meeting of the legal services board on 11 september 2013’ (lsb, 12 september 2013) <http://www.legalservicesboard.org.uk/about_us/board_meetings/pdf/20130911_ minutes.pdf> accessed 17 august 2014. 218 emily lyn, crispin passmore, alex roy, ‘legal services board meeting briefing paper (13) 58’ (lsb, 11 september 2013) <http://www.legalservicesboard.org.uk/about_us/board_meetings/pdf/13_58_letr _consultation_paper.pdf> accessed 17 august 2014. see also lsb ‘increasing 142 http://www.legalservicesboard.org.uk/about_us/board_meetings/pdf/13_54_letr_report_briefing.pdf http://www.legalservicesboard.org.uk/about_us/board_meetings/pdf/13_54_letr_report_briefing.pdf http://www.legalservicesboard.org.uk/about_us/board_meetings/pdf/20130724_minutes.pdf http://www.legalservicesboard.org.uk/about_us/board_meetings/pdf/20130724_minutes.pdf http://www.legalservicesboard.org.uk/about_us/board_meetings/pdf/20130911_minutes.pdf http://www.legalservicesboard.org.uk/about_us/board_meetings/pdf/20130911_minutes.pdf http://www.legalservicesboard.org.uk/about_us/board_meetings/pdf/13_58_letr_consultation_paper.pdf http://www.legalservicesboard.org.uk/about_us/board_meetings/pdf/13_58_letr_consultation_paper.pdf the denning law journal this statement, articulating the lsb’s rationale, indicates that it wished to set out its own vision for how matters associated with legal education and training should develop. what is less clear is what robust evidence base led them to set out this vision. there is certainly no reference to research in any of the briefing papers, or the consultation documents produced by the lsb. the framing of this statutory advice also, as outlined above, provides the basis upon which, in the lsb’s own words, momentum in this area might be maintained and a culture of change might be brought about.219 as clearly indicated, this statutory guidance is to be used by the lsb to assess the extent to which their vision is being pursued. the clear implication is that they intend to hold the approved regulators to account to their vision. the draft statutory guidance was put out for consultation in september 2013. the period for consultation ended on the 11 december 2013. there were 16 responses to the consultation, 6 from the approved regulators, 6 from representative bodies, 2 from legal education providers and one from the lscp.220 the majority queried whether there was any need for the lsb to take this action. many respondents questioned whether issuing statutory guidance was a proportionate response for the lsb to take. on the 4 march, despite many serious points being raised by the respondents to the consultation, the lsb published, under s162 lsa 2007 – statutory guidance on education and training.221 whilst as noted earlier on the lscp has a wide range of ambitions when it comes to education and training – it is perhaps no surprise that the statutory guidance issued by the lsb reflects in a multitude of ways the ideas of the lscp. the flexibility in legal education and training consultation on proposals for draft statutory guidance to be issued under section 162 of the legal services act 2007’ <http://www.legalservicesboard.org.uk/what_we_do/consultations/closed/pdf/201 30918_consultation_paper_on_guidance_for_education_and_training_final_fo r_publication.pdf> accessed 17 august 2014. 219 lyn (n 218). 220 legal services board, ‘submissions received to the consultation on proposals for draft guidance on education and training’(lsb, december 2013) <http://www.legalservicesboard.org.uk/what_we_do/consultations/closed/submis sions_received_to_the_consultation_on_proposals_for_draft_guidance_on_ education_and_training.html> accessed 17 august 2014. 221 lsb, ‘guidance on regulatory arrangements for education and training issued under s 162 of the legal services act 2007’ (lsb, 4 march 2014) <http://www.legalservicesboard.org.uk/what_we_do/consultations/closed/pdf/201 40304_lsb_education_and_training_guidance_2.pdf> accessed 17 august 2014. 143 http://www.legalservicesboard.org.uk/what_we_do/consultations/closed/pdf/20130918_consultation_paper_on_guidance_for_education_and_training_final_for_publication.pdf http://www.legalservicesboard.org.uk/what_we_do/consultations/closed/pdf/20130918_consultation_paper_on_guidance_for_education_and_training_final_for_publication.pdf http://www.legalservicesboard.org.uk/what_we_do/consultations/closed/pdf/20130918_consultation_paper_on_guidance_for_education_and_training_final_for_publication.pdf http://www.legalservicesboard.org.uk/what_we_do/consultations/closed/submissions_received_to_the_consultation_on_proposals_for_draft_guidance_on_education_and_training.html http://www.legalservicesboard.org.uk/what_we_do/consultations/closed/submissions_received_to_the_consultation_on_proposals_for_draft_guidance_on_education_and_training.html http://www.legalservicesboard.org.uk/what_we_do/consultations/closed/submissions_received_to_the_consultation_on_proposals_for_draft_guidance_on_education_and_training.html http://www.legalservicesboard.org.uk/what_we_do/consultations/closed/pdf/20140304_lsb_education_and_training_guidance_2.pdf http://www.legalservicesboard.org.uk/what_we_do/consultations/closed/pdf/20140304_lsb_education_and_training_guidance_2.pdf http://www.legalservicesboard.org.uk/what_we_do/consultations/closed/pdf/20140304_lsb_education_and_training_guidance_2.pdf consumer capture and the legal services act 2007 lscp’s ideas when it comes to education and training are set out in its submission to the letr research team. without reference to any real substantive research the lscp sets out, in this document, a desire to see a future education and training system built around an activity-based authorisation regime for individuals and entities.222 in particular they frame their entire submission around ‘activity based regulation,’ ‘reaccreditation’ and ‘regulation of entities.’223 the lsb’s statutory advice, which sets out 5 outcomes, which are also qualified in some detail, produced by the lsb, reflects almost in its entirety these three themes, with some flourishes that mitigate some of the more controversial elements of the lscp’s suggestions. it is, however, clear that the intellectual bedrock of the lsb’s vision rests quite firmly on that articulated by the lscp. as acknowledged earlier in this paper this is to be expected as a result of the construction of the lsb and its consumer panel. the point at issue is, in the face of a robust piece of work conducted by the letr team which laboured for 3 years to produce a report where is the intellectual basis of the lsb’s statutory guidance? moreover, as outlined earlier the lsb and lscp were clearly not convinced by the letr report and its apparent neglect of the consumer. the actions taken by the lsb, drawing on the lscp’s robust views in this area, once again suggest that the consumer it being prioritised ahead of at least thoughtful consideration of the public interest. where the public interest lies in all of this is open for discussion, however, designing an education and training system around the consumer is, for a spectrum of reasons, unlikely to protect and promote the public interest. 6. discussion the aforementioned three illustrations of the way in which the lsb has made decisions reveals, firstly, an instance in which the public interest was, by the lsb’s own admission, not taken account of. secondly, a decision that was taken by the lsb which, by its own admission, was based on little, to no, evidence. thirdly, a decision was made in the context of education and training which was both un-evidenced and arguably un-necessary. what unites all three of these illustrations is the reliance placed on research or policy set forth by the lscp to the lsb. in 222 lscp ‘response to the letr consultation on legal education and training’ (lscp, 21 may 2012) <http://www.legalservicesconsumerpanel.org.uk/publications/consultation_respo nses/documents/2012-05-21letrsubmission.pdf> accessed 17 august 2014. 223 ibid 4. 144 http://www.legalservicesconsumerpanel.org.uk/publications/consultation_responses/documents/2012-05-21letrsubmission.pdf http://www.legalservicesconsumerpanel.org.uk/publications/consultation_responses/documents/2012-05-21letrsubmission.pdf the denning law journal considering the three elements of capture, discussed earlier on in this paper, it is difficult to conclusively arrive at an understanding of what the public interest is. this, as previously noted, requires further substantial investigation. however, in at least one of the cases, a clear alternative to the path preferred by the lsb was taken by the government acting in a legislative capacity. they were robustly supported in this by a welter of other organisations and impartial commentators. as to the policy approach advocated by the lsb – this clearly favoured the lscp’s preferred policy outcome and a discernible move was made by the lsb away from the public interest as maybe otherwise understood. by virtue of the lscp’s expressed policy, it is clear that there was intent by them in favour of a special interest, purportedly representing the ‘consumer interest.’ with regards to the second decision taken by the lsb, in light of the parameters of regulatory capture suggested at the beginning of this paper – it is slightly more difficult to make a clear determination on this. firstly, understanding where the public interest lies is, as noted above a matter of some determination. this paper has clearly indicated that there is scholarship on the wisdom of lay boards in regulatory decision making. doubt has been cast over whether lay boards and lay chair people are necessarily as ideal as some would promote them to be. the lscp certainly set out their desire for lay chair persons of the regulatory boards a long time ago. it is unclear what their intellectual argument for this was. what is clear, however, is that the decision taken by the lsb on lay chairs favoured the lscps position on this matter. given that the lscp had a positive policy on this matter this demonstrates intent on their behalf to realise this change. therefore, in this case, again, subject to a determination of the public interest, it appears that some of the conditions for finding capture are apparent in this situation. regarding the last example, again, the public interest in this context is a matter for some discussion. what is, however, clear is that the lsb clearly favoured the lscps policies in this area – and clearly developed their thinking together on this. this is, as clearly articulated, not reflective of the whole broad thrust of thinking and interests in this area. the lscp has a clear policy to design education and training around the consumer. the mere fact that they negate to consider the public interest is a cause for concern. in a way this suggests that they are preoccupied with their vision and policies – absent any real theoretical or research backing. moreover, their lack of appetite to take account of the range of other interests which are necessary to be considered, is concerning. the fact that the lsb’s statutory guidance reflects in substance the policies of the lscp demonstrates a move away from some important public interest considerations. 145 consumer capture and the legal services act 2007 in drawing the various strands of this paper together – when it comes to making a claim that the lsb has been captured; a number of considerations need to be born in mind. the first of which is that there are a range of structural factors which lead to the prioritisation of the consumer interest. it would be incorrect to hold the lsb accountable for following the letter of the lsa 2007. it would also be incorrect to hold the lsb accountable for setting up the lscp and working with it. if anything, an allegation of consumer capture rests at the legislative stage – where it is arguable that the government became captured by the consumer lobby and entrenched voices within government who advocated the promotion of the consumer interest. this paper has sought to explain the problems associated with the consumer interest and its promotion. moreover, it has drawn on various critiques of commonly used economic methodologies used in decision making which promote a version of the consumer interest. this has, in part, illustrated some of the attendant dangers of promoting consumer orientated policies without thoughtful consideration of the public interest. the aforementioned economic methodologies appear not to take account of the public interest. the lsb appears to have struggled with conceptualising the public interest. in attempting to make a judgment as to whether the lsb has become captured by the consumer interest it is important to carpenter’s definition to discover whether special interests have actively and knowingly sought to move policy away from the public interest towards the consumer interest. the foregoing has illustrated that there is a close connection between the lsb and the lscp. it has also shown that the lsb has a strong ideological bent and that the evidence to back up some of its policies is both formed by the lscp and is wanting in some regards. it is plausible to suggest that the lsb believes that it is protecting and promoting the public interest through the decisions that it has made. it would also be a dramatic accusation to make that the lscp actively wished to knowingly and actively advance policies away from the public interest. for this reason, and existing problems surrounding the public interest in the context of legal services, it would likely be a challenge to conclusively meet carpenter’s evidential burden for capture. if anything this paper charges both the lscp and the lsb with failing to sufficiently get to grips with, and respect, the public interest. in terms of making an assertion based around capture, kwak’s theories about cultural capture, mccarty’s theories around capture and provision of expertise by interest, and zingales’ theories about economists capture – all provide promising routes of enquiry. as illustrated throughout this paper – a variety of pieces of evidence exist to suggest that these forms of capture might all exist. at present these remain 146 the denning law journal suggestions and fuller examination needs to be made of each. it remains a theoretical issue for future resolution how each of these forms of capture are to be resolved with carpenter’s definition. the aspect of carpenter’s definition that requires intent on behalf of the interest group is difficult to rationalise with the theories posited by kwak in the context of cultural capture. by its very nature culture does not necessarily manifest intention or a form of mens rea. kwak’s notion of cultural capture appears a particularly appealing way of explaining many of the approaches taken by the lsb. the way in which particular tools have been selected for decision making, the ideological predisposition of the member of the lsb, the proactive approach that the lsb have adopted, often in the face of expert comment advocating alternative approaches, all points to a general culture inside the regulator which prioritises the consumer interest. the pursuance of a consumer orientated set of policies is perhaps culturally no surprise. 7. conclusion this paper concludes, by suggesting that there is little prospect of the lsb changing its approach to the consumer interest. sir michael pitt, the new chairman of the lsb has re-affirmed the existing ideological predisposition of the lsb in a recent paper supplied to the lsb’s may 2014 board meeting. he stated: “the lsb has been criticised for its ‘consumer obsession’ by some of the regulators and indeed the senior judiciary. i am similarly obsessed and for me it is a starting point. we still have a market which is far too intimidating, too uniform and, in many cases, too expensive.” 224 “in the wider economy, customers are generally best served by well-functioning markets, with public interest safeguards and regulation targeted only where justified in light of the fundamental characteristics of the market (for example the inevitable disparities 224 sir michael pitt, ‘lsb strategy: chair’s perspective paper 14(28)’ (lsb, 22 may 2014) <http://www.legalservicesboard.org.uk/about_us/board_meetings/pdf/20140522_ 22_may_2014/14_28_lsb_strategy_chairs_perspective.pdf> accessed 19 august 2014, 2. 147 consumer capture and the legal services act 2007 in knowledge between consumers and the professionals they consult)”225 “i would like to think that every decision we make is informed by a “consumer interest” test of whether legal services are becoming more rather than less accessible. i believe there is much to be gained in this respect by learning from the consumer panel and the olc who have access to significant evidence relating to consumer behaviours and experiences.” 226 in drawing together the various elements of this paper the following points can be made. firstly, there are a number of robust reasons why regulating in the consumer’s interest is not always a sensible thing to do. secondly, there are a number of structural factors, inherent in the design of the lsa 2007 which led to a prioritisation of the consumer interest. this is compounded by modern decision making methods which inherently rely upon narrow decision making tools borrowed from crude and basic economics. for reasons to do with quantifying the public interest and apportioning an active intention on behalf of the consumer lobby to detract from the public interest – it is difficult to assert, according to the evidential burden set out by carpenter that the lsb has been captured by the consumer interest and consumer lobby. it remains, however, plausible according to kwak’s theory of cultural capture that a more subliminal form of capture exists. the source of this capture is derived from a number of sources. irrespective of this – the danger remains that regulation of the legal profession and legal services will continue, as it appears to have done since 2007, to advance an unreflective consumer orientated agenda. aspects of this agenda might service the public interest. however, for reasons set out earlier to do with the problems of promoting an individual interests, which the market does – it remains much more than a possibility that the public interest is neglected. it remains imperative that greater focus is placed on the public interest – such that this interest is not subordinated. 225 ibid 2. 226 ibid 3. 148 consumer capture and the legal services act 2007 1. introduction 2. regulatory capture and the consumer interest regulatory capture 3. the consumer interest 4. structural positioning of the consumer interest 5. consumer capture -referral fees, lay chairs and the letr lay chairs of approved regulators regulatory boards statutory guidance and the legal education training review (letr) 6. discussion 7. conclusion unincorporated associations: property holding, charitable purposes and dissolution denning law journal 2014 vol 26 pp 281-297 case commentary towards the reasonable accommodation of religious freedom mba v mayor and burgesses of the london borough of merton [2013] ewca civ 1562 peter smith* summary the court of appeal’s decision in mrs mba’s case is notable because: (a) it rejects the qualitative evaluation of her sabbatarian belief as a “core component” of christianity in assessing for the purposes of domestic antidiscrimination legislation the proportionality of her employer’s requirement for her to work sundays; (b) it continues to keep minimal the size of the group required to show group disadvantage; and (c) per elias lj and vos lj, it finds the assessment of group disadvantage to be incompatible with article 9 when the echr is engaged. the case represents the continued move from a group to an individual focus, and is welcome: it better protects personal religious freedoms. the logical conclusion is for domestic law to oblige employers to reasonably accommodate religious rights via a sui generis legal mechanism. introduction/case summary celestina mba worked as a care worker in a children’s home, the brightwell. she was rostered by her employer, the london borough of merton, to work on sundays, in line with her contractual obligations of employment. she did not wish to work on sundays for reasons connected to her religious beliefs as a baptist christian. after a final written warning (against which she unsuccessfully appealed) mrs mba resigned from her employment. she subsequently brought a claim alleging constructive unfair dismissal and discrimination against the council.1 * peter smith, ma (cantab), mphil (cantab). employed barrister, carter-ruck, 6 st andrew street, ec4a 3ae. member of the denning society (lincoln’s inn). 1 mba v mayor and burgesses of the london borough of merton [2013] ewca civ 1562. 281 case commentary an employment tribunal concluded that although indirect discrimination2 had occurred on the grounds of her religion, the policy, criterion or practice (pcp) applied by her employer in compelling her to work on the sabbath was justified as a proportionate means of achieving a legitimate aim, the provision of round-the-clock care to disabled and other children at brightwell.3 it noted that: “[w]e also need to weigh in the balance the discriminatory impact of the pcp upon [mrs mba]. we accept that the pcp impacted on her genuinely and deeply held religious belief and observance…however, in terms of the degree of disadvantage to her, we bear in mind the following particulars: (i) [the council] did make efforts to accommodate her in this respect for two years; (ii) [the council] was in any event prepared to arrange the shifts in a way that enabled her to attend church to worship each sunday; and (iii) her belief that sunday should be a day of rest and worship upon which no paid employment was undertaken, whilst deeply held, is not a core component of the christian faith… as much is as accepted in terms as… bishop nazir-ali’s witness statement…, where he states that some christians will not work on the sabbath. to approach the matter in this way does not involve a secular court impermissibly adjudicating in evaluative terms upon religious beliefs…, as opposed to simply proceeding on the basis of evidence before it as to the components of the christian faith.” the court of appeal, in assessing the tribunal’s reasoning on proportionality, considered the first two of the factors cited by the tribunal as irrelevant, and deemed its reasoning an error of law in relation to the third: whether not working on a sunday was a “core component” of mrs mba’s 2 direct discrimination was not an issue. 3 employment equality (religion or belief) regulations 2003, si 2003/1660, reg 3 reads: ‘(1) for the purposes of these regulations, a person (‘a’) discriminates against another person (‘b’) if — (a) on grounds of religion or belief, a treats b less favourably than he treats or would treat other persons; or (b) a applies to b a provision, criterion or practice which he applies or would apply equally to persons not of the same religion or belief as b, but — (i) which puts or would put persons of the same religion or belief as b at a particular disadvantage when compared with other persons, (ii) which puts b at that disadvantage, and (iii) which a cannot show to be a proportionate means of achieving a legitimate aim.’ 282 the denning law journal faith.4 in doing so, it reversed the finding of the employment appeal tribunal.5 the court considered that the correct approach to weighing the employee’s religion or belief in a proportionality assessment – the exercise of balancing the discriminatory impact on a protected religious practice or belief against the objectives of an employer – is neither strictly qualitative (“evaluating how important the belief is, so that it may be described as ‘core’”) nor quantitative (“how many people who are adherent to the faith believe in that particular aspect or requirement of it”).6 the bench was split, however, on the relationship between the two positions and whether the numerical popularity of a religion or belief assisted the employer or employee. for maurice kay lj, it was enough to ask whether a genuine religious belief was held by the claimant, following r (williamson) v secretary of state for education and employment.7 provided it was shared by “some”8 christians (a test in favour of the employer) then that was sufficient for group disadvantage under the reg 3(b)(i). there was no need to consider quantity for the purposes of the proportionality assessment under reg 3(b)(iii) as, in any case, the popularity of a belief cut both ways: a minority belief could be interpreted as more or less deserving of protection.9 4 the expert evidence of bishop michael nazir-ali was adduced to prove that, whereas many do not, some christians follow closely the fourth commandment: ‘remember the sabbath day to keep it holy. six days shalt thou labour, and do all thy work: but the seventh day is the sabbath of the lord thy god: in it thou shalt not do any work.’: see mba (n 1) [1], [13]. 5 ms c mba v the mayor and burgesses of the london borough of merton [2013] icr 658. material parts of the employment appeal tribunal decision are cited therein. 6 mba (n 1) [16]; ms c mba (n 6) [48]. 7 [2005] 2 ac 246 (hl) [22] (lord nicholls): ‘when the genuineness of a claimant’s professed belief is an issue in the proceedings the court will inquire into and decide this issue as a question of fact. this is a limited inquiry. the court is concerned to ensure an assertion of religious belief is made in good faith: “neither fictitious, nor capricious, and that it is not an artifice”…but, emphatically, it is not for the court to embark on an inquiry into the asserted belief and judge its “validity” by some objective standard such as the source material upon which the claimant founds his belief on the orthodox teaching of the religion in question or the extent to which the claimant’s belief conforms to or differs from the views of others professing the same religion. freedom of religion protects the subjective belief of an individual.’; quoted at mba (n 1) [13]. religion or belief is a wide category: see grainger plc and others v nicholson [2010] icr (eat) 360: where an employment appeal tribunal held that beliefs about climate change could amount to a protected belief. 8 mba (n 1) [18]. 9 ibid [19]. 283 case commentary for elias lj (with whom vos lj largely agreed),10 the court should engage in a more sophisticated analysis. if article 9 of the european convention on human rights (echr) was not engaged then the “extent”11 of the discriminatory impact as part of group disadvantage was relevant in the proportionality assessment also.12 convention jurisprudence, by contrast, required no consideration of the group disadvantage of the discriminatory measure because of its focus on the rights and freedoms affecting one person: eweida v united kingdom.13 in tandem with the claim for indirect discrimination, article 9 was engaged (albeit not directly enforceable in the employment tribunal) ostensibly because the respondent was a public authority although also, following eweida, because of the positive obligation to safeguard the religious freedom protected under article 9. yet, because the concept of group disadvantage does not exist in convention jurisprudence, elias lj recognised there was a problem: there was no way to read the requirements of the convention and domestic legislation compatibly, as the court was obliged to do.14 his criticism was significant: discrimination law cannot be read down to “ignore the need to establish group disadvantage” under reg 3(b)(i) when article 9 was engaged. instead, he read “the concept of justification [reg 3(b)(iii)] compatibly with article 9 where that provision is in play. in that context it does not matter whether the claimant is disadvantaged along with others or not, and it cannot in any way weaken her case with respect to justification that her beliefs are not more widely shared or do not constitute a core belief of any particular religion”.15 he observed that “paradoxically, if a belief is not widely shared, which is more likely to be the case where it is not a core belief of a particular religion, that is a factor which under article 9 is likely to work in favour of the employee rather than against”.16 despite these errors, the court declined to quash the employment tribunal findings against mrs mba, and she lost her case. 10 ibid [39]. 11 ibid [33]. 12 the relevant part of convention for the protection of human rights and fundamental freedoms (european convention on human rights, as amended) (echr) 1950, art 9(2): ‘freedom to manifest one’s religion or belief shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society…for the protection of the rights and freedoms of others.’ 13 eweida v united kingdom (2013) ehrr 8 [79]-[84]. 14 human rights act 1998, s 3(1): ‘so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the convention rights.’ 15 mba (n 1) [35]. 16 ibid [36]. 284 the denning law journal the court’s refocus on protecting individual religious practice or belief takes indirect discrimination in english law further away from the identification of the “core component” of an infringed religious practice or belief as part of assessing proportionality in the justification test as applied previously by the court of appeal in islington london borough council v ladele.17 yet reading the court’s decision in mba is not a wholly satisfying activity. although the 2003 religion or belief regulations have been superseded by the equality act 2010, the problems inherent in assessing proportionality in any defence to a claim of indirect discrimination remain the same.18 any proportionality assessment of the numbers of adherents to the religion or belief can assist either the employer or employee. the decision in mba still leaves open the precise number of adherents – the meaning of “some” or “a few” – needed to satisfy the group disadvantage test under reg 3(b)(i): as the employment appeal tribunal (eat) has noted, there is “no consensus in law as to how large (or small) this cohort of others or ‘group’ must be in order to suffice”.19 courts remain keen to refrain from evaluating the theological or philosophical importance of a religion or belief. united kingdom (uk) equality laws remain “extremely complex” in the view of at least one specialist.20 to a certain extent, english discrimination law is stuck in a conceptual rut. rather than adjudicating fairly between competing interests and protecting diverse values and freedoms, it has the potential to act as an expensive fetter on private enterprise and the public sector alike without reaching equitable decisions. given these difficulties, what course should english law now take to protect religious rights and balance the needs of employers against those of employees? 17 [2010] 1 wlr 955 (ca) [52] (neuberger mr); mba (n 1) [15]: where the claimant’s view of marriage was considered ‘not a core part of her religion’. 18 see lucy vickers, ‘religious discrimination in the workplace: an emerging hierarchy?’ (2010) 12 ecc l j 280, 297 for criticisms of proportionality as applied in both contexts. 19 chatwal v wandsworth borough council [2011] eq lr 942 (eat) [25]-[27]. see also sir james dingemans, can yeginsu, tom cross and hafsah masood, the protections for religions rights: law and practice (oup 2013) [6.76]-[6.82]. 20 gay moon, ‘from equal treatment to appropriate treatment: what lessons can canadian equality law on dignity and on reasonable accommodation teach the united kingdom?’ (2006) 6 ehrlr 695, 695. 285 case commentary the problems with anti-discrimination measures derived from eu law in a recent speech at yale law school, the deputy president of the uk supreme court, baroness hale of richmond, spoke about the clash between measures prohibiting discrimination on the grounds of religion and measures prohibiting discrimination on the grounds of sexual orientation.21 she distinguished two types of cases: those when christian believers assert their beliefs against their employers or the state and with “no competing equality right in play”, as in mrs. mba’s case,22 and those where the manifestations of their beliefs cause christians to deny goods or services from people on their grounds of their sexual orientation.23 most of these cases fall under uk anti-discrimination provisions created directly as a consequence of european union (eu) law, especially the general principle of equal treatment embodied in the framework directive on equal treatment in employment and occupation24 and the subsequent package of domestic legislation. for instance, the 2003 sexual orientation regulations25 created mirror protections to the 2003 religion or belief regulations, and both religion or belief and sex and sexual orientation are, alongside age, race, etc. “protected characteristics” under the equality act 2010.26 the prohibition 21 lady hale, ‘religion and sexual orientation: the clash of equality rights’ (comparative and administrative law conference, 7 march 2014) <www.supremecourt.uk/docs/speech-140307.pdf> accessed 10 may 2014. 22 gibson in matthew gibson, ‘the god “dilution”? religion, discrimination and the case for reasonable accommodation’ (2013) 72 clj 578, 585-6 divides this category into two further sets: cases concerning the employee’s wish to modify personal appearance in accordance with their religion or belief, and cases relating to the conflict between an employee’s obligation to attendance religious observance ceremonies and their scheduled work duties. the only ‘relevant appellate uk antidiscrimination judgment’ he could find in the latter category is mr n cherfi v g4s security services ltd [2011] wl 11519 (eat), which only shallowly considers the proportionality exercise. 23 perhaps best known example of the latter is bull and another v hall and another [2013] uksc 73, where the bulls – christian hoteliers who refused a double-bedded room to same-sex civil partners on the grounds of their blanket policy to let double accommodation to heterosexual married couples only – were found to be directly discriminating against mr hall and mr preddy. 24 council directive (ec) 2000/78 establishing a general framework for equal treatment in employment and occupation. 25 employment equality (sexual orientation) regulations 2003, si 2003/1661. 26 ‘protected characteristics’ defined at equality act 2010, ss 4-12 and in s 19(3) in relation to indirect discrimination. 286 the denning law journal of indirect discrimination in the 2010 act is very similar to that in reg 3 and it carries over the ambiguous language of group disadvantage and proportionality.27 as shown in mba through the differing approaches of maurice kay lj on the one hand and elias and vos ljs on the other, domesticated eu law (in the form of the 2003 religion or belief regulations) sit uncomfortably with the jurisprudence of article 9. this comes in part from three differences drawn by lady hale between the two legal systems in their protection for religious rights.28 firstly, their contrasting spheres of operation. through article 14, the convention protects against discrimination on the basis of rights protected therein. these rights are only enforceable vertically, against the state, unless the state has a positive obligation to ensure respect for a convention right by private persons (as it does in regards to article 9), an exception rather than the norm.29 eu law covers largely30 employment, occupation and training, as these are all part of establishing the common market in labour, but in both the private and public sectors.31 secondly, eu law defines and protects fewer characteristics than the echr, and the echr list is non-exhaustive: “all sorts of things have been 27 equality act 2010, s 19: ‘(1) a person (a) discriminates against another (b) if a applies to b a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of b’s. (2) for the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of b’s if —(a) a applies, or would apply, it to persons with whom b does not share the characteristic, (b) it puts, or would put, persons with whom b shares the characteristic at a particular disadvantage when compared with persons with whom b does not share it, (c) it puts, or would put, b at that disadvantage, and (d) a cannot show it to be a proportionate means of achieving a legitimate aim.’ 28 ibid ss 4-5. 29 echr (n 13) art 14: ‘prohibition of discrimination. the enjoyment of the rights and freedoms set forth in this convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’ 30 see council directive (ec) 2000/43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin; for instances where the provisions of some goods and services are covered. the corresponding domestic legislation goes consistently further than eu law because it protects against discrimination in the supply of goods and services too. 31 this situation will change when the eu charter of fundamental rights becomes fully effective. given its uncertain status in the uk, it is outside the scope of this analysis. 287 case commentary recognised under the ‘other status’ rubric, including where you live or the character of your sentence of imprisonment.”32 finally, eu and convention jurisprudence take different approaches to justification. eu law distinguishes between direct and indirect discrimination and allows justification of the latter only – although identifying the species of discrimination can, as lady hale observed, be a fraught process.33 the convention also recognises both forms of discrimination but either may be justified if a proportionate response to a legitimate aim.34 lady hale’s view is that the convention approach is “preferable” to the eu approach given the lack of a general defence of justification in the latter, which precludes courts and tribunals from “addressing the real issues” in discrimination cases such as legitimate aim, rational connection and the proportionality of a prima facie discriminatory measure. the exercise of distinguishing direct and indirect discrimination is, in effect, to distract the court from the real exercise at hand, viz. the administration of justice. she suggests a new approach to claims like mrs mba’s. “[i]nstead of all the technicalities which eu law has produced, would it not be a great deal simpler if we required the providers of employment, goods and services to make reasonable accommodation for the religious beliefs of others? we can get this out of the echr approach but not out of our anti-discrimination law (although it is well established there in relation to disability).”35 mrs mba’s case, it is submitted, incrementally takes english law in that direction by blending convention and eu law, by watering down group disadvantage for the purpose of reg 3 (and thus the 2010 act), and by narrowing the factual inquiries in the assessment of proportionality. especially where no other protected characteristic is in conflict, the reasonable accommodation approach provides a simpler solution, and one that, when the facts of mrs mba’s case, provides a fairer outcome. it is an idea whose time has come. the reasonable accommodation of religious rights: an alternative approach the reasonable accommodation of religious rights has emerged from numerous sources, including international jurisprudence (particularly in north 32 ibid s 4. 33 bull (n 24) and the similar case of black and morgan v wilkinson [2013] ewca civ 820; both following james v eastleigh borough council [1990] 2 ac 751 (hl). 34 such justifications being ‘prescribed by law and are necessary in a democratic society’, as eg in echr (n 13) art 9(2). 35 ibid art 18. 288 the denning law journal america and the strasbourg court) and academic discourse.36 it draws on the concept of “reasonable adjustment” in disability law37 as lady hale herself observed and has been suggested by the uk’s equalities and human rights commission38 as a viable mechanism. as far back as 2000, the hepple report proposed that a duty of reasonable adjustment should be extended to religion or belief39 and the notion has received the more recent blessing of a range of 36 kristin henrard, ‘duties of reasonable accommodation in relation to religion and the european court of human rights: a closer look at the prohibition of discrimination, the freedom of religion and related duties of state neutrality’ (2012) 5 erasmus lr 59; emmanuelle bribosia, julie ringelheim and isabelle rorive, ‘reasonable accommodation for religious minorities: a promising concept for european antidiscrimination law?’ (2010) 17 mj 137; vickers (n 19); moon (n 21); gibson (n 23). 37 equality act 2010, ss 20-2 requires employers and providers of goods and services to make ‘reasonable adjustments’ to accommodate the needs of people with disabilities. this means that an employer must make sure that a person with disabilities has the same access, as far as is reasonable, to everything that is involved in getting and doing a job that a person without disabilities has. 38 equality and human rights commission, ‘religion or belief in the workplace: a guide for employers following recent european court of human rights judgments’ (comission, 2013) <www.equalityhumanrights.com/sites/default/files/documents/rob/religion_or_belief _in_the_workplace_a_guide_for_employers.pdf> accessed 10 june 2014: ‘the equality and human rights commission supports individuals' right to freedom of thought, conscience and religion, and to conditional protection of the right to express religion or belief. it seeks to promote a balanced approach to recognising and managing religion or belief issues at work and to help employers and employees find reasonable solutions, wherever possible, and avoid complex, costly and damaging litigation. it is in the interests of all parties to try to find reasonable solutions through discussion, mutual respect and, where practical, mutual accommodation.’ the ehrc encourages employers ‘to take as their starting-point consideration as to how to accommodate the request unless there are cogent or compelling reasons not to do so, assessing the impact of the change on other employees, the operation of the business and other factors outlined below.’ such factors include the cost, disruption and wider impact on business or work if the request is accommodated, whether there are health and safety implications for the proposed change, the disadvantage to the affected employee if the request is refused, the impact of any change on other employees, including on those who have a different religion or belief, or no religion or belief, the impact of any change on customers or service users, and whether work policies and practices to ensure uniformity and consistency are justifiable… 39 bob hepple, marry coussey and tufyal choudhury, equality: a new framework, report of the independent review of the enforcement of uk anti-discrimination legislation (hart 2000) 49, recommendation 21. the report was the forerunner to the 289 case commentary religious and secular opinion-formers.40 moreover, it already exists as an embryonic concept in the context of religious rights exercised in employment situations, thanks to the court of appeal in copsey v wbb devon clays limited41 and lady hale’s judgment in bull and another v hall and another.42 the strasbourg court, too, has begun fashioning a right to reasonable accommodation as a way of achieving a legitimate aim that is least restrictive of rights and freedoms.43 some commentators argue that there is no need for reasonable accommodation of religion or belief in eu law because the justification test for indirect discrimination already includes a duty to so.44 however the point here is that, whatever its basis, whether reasonable accommodation is part of direct or indirect indiscrimination law or in fact a third sui generis legal mechanism, mba’s case shows how its reasoning is penetrating uk antidiscrimination jurisprudence. what does a reasonable accommodation test look like? the most developed model for a reasonable accommodation approach is that found in canada.45 it is rooted in the 1982 canadian charter of rights and freedoms46 general attempt to consolidate anti-discrimination measures in one act, as was done in the equality acts 2006 and 2010. 40 see the multiple contributors to the christians in parliament adrian hilton, alec bounds and all s fitzwarren, ‘clearing the ground’ (2012) <www.eauk.org/currentaffairs/publications/upload/all-contributors-ctg.pdf> accessed 10 june 2014; prakash shah, ‘asking about reasonable accommodation in the context of religious universalism’ (queen may university of london, 2013) queen mary university of london, school of law legal studies research paper 134/2013, 1 <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2243375> accessed 20 august 2014. 41 [2005] ewca civ 932 [71] (rix lj): ‘it seems to me that it is possible and necessary to contemplate that an employer who seeks to change an employee's working hours so as to prevent that employee from practising his sincere adherence to the requirements of his religion in the way of sabbath observance may be acting unfairly if he makes no attempt to accommodate his employee's needs.’ also at para 72: ‘it seems to me that if respect for the right to manifest one's religion is to have meaning in a democratic society, it is not possible to say that an employer who, in the given situation, would simply ignore any need to seek a reasonable accommodation would be acting fairly.’ 42 bull (n 24) [45]-[51]. 43 francesco sessa v italy app no 28790/08 (ecthr, 3 april 2012). 44 erica howard, ‘reasonable accommodation of religion and other discrimination grounds in eu law’ (2013) 38 e l rev, 360. 45 moon (n 21); briobosia (n 37) 144-50; gibson (n 23) 593-7. 46 canadian charter of rights and freedoms 1982, ss 1, 15. 290 the denning law journal and 1985 canadian human rights act.47 in outline, once a religious belief has been identified, as in english law it must be recognised as sincere48 and must be the basis of the discrimination complained of. employers are obliged to protect their employees’ religious rights without “undue interference” in those rights.49 any discriminatory measure is subject to a now standard test. the employer must show, on the balance of probabilities, “(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job; (2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and (3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose.”50 lest this balancing act result in the scales of justice becoming stuck in the middle, the key to the canadian model is that “to show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.”51 factors to be taken into account in assessing “undue hardship”, in a nonexhaustive list, include financial cost, any disruption of a collective agreement, morale problems for other employees, the inter-changeability of workforce and facilities, the size of the employer, and safety.52 it is noticeable how high a threshold the employer faces to justify his discriminatory measure: it must be impossible to accommodate individual employees without undue hardship on the part of the employer. by comparison, in the united states the reasonable accommodation hurdle is set extremely low: undue hardship in federal law53 means, in the context of 47 canadian human rights act 1985, s 2 mandates that ‘all individuals should have an opportunity to equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered or prevented from doing so by discriminatory practices based on…religion…’ 48 lord nicolls in wilkinson (n 34) was quoting a canadian case. 49 ontario human rights commission (o’malley) v simpson sears [1985] 2 scr 536 [23] (mr justice mcintyre). 50 british columbia (public service employee relations comm) v bcgeu [1999] 3 scr 3 [54] (justice mclachlin). 51 bcgeu (n 51) [54] (justice mclachlin): ‘the elevated standard is not to give undue recognition to religious interests; rather, it is to force courts to engage with all the relevant issues so as to resolve whether, and if so how far, an accommodation should have been made.’ 52 central alberta dairy pool v alberta (human rights commission) [1990] 2 scr 489. 53 civil rights act 1964, title vii 42 uscc 21 701(j). 291 case commentary religious discrimination, “more than a de minimis cost” on the part of the employer.54 one of the principal benefits of the canadian model is that the balancing of reasonable accommodation can happen at both an individual and group level without the cumbersome procedure in reg 3, and is therefore much more like lady hale’s current preference in the convention. all three lord justices in mba were concerned to move away from the need to consider the numbers of adherents holding a particular belief. they sought to be sensitive to “the diversity of beliefs between and within religions, which flows from the respect that is accorded to the range of sincerely held religious beliefs.”55 the reasonable accommodation test clearly places the burden of proving the impossibility of accommodation onto the shoulders of the employer and removes the need for the employee to adduce evidence of other employees affected. whereas the first three limbs of the test allow broad application to a wide variety of factual matrices, the factors to be taken into account when evaluating undue hardship mean that the case law is ultimately narrower and more structured, giving more security and certainty to employers and employees alike. the reasonable accommodation test is squarely presumptive in favour of the employee, unlike the proportionality test which always begs the question, “proportionate to what?”, and thus tends towards obliging employers to make the minimum effort not to disadvantage the employee. in doing so, reasonable accommodation moves the analysis from individuals and their characteristics to the context or environment in which they exist, and sharpens the focus of the exercise onto the dignity and autonomy of the worker. it points towards substantive equality in the workplace, where employees are aided in their pursuit of moral needs, rather than a bland or formal equality that is the by-product of desiccated legal reasoning.56 54 trans world airlines v hardison (1977) 432 us 63; on us reasonable accommodation: bribosia (n 37) 139-44; gibson (n 23) 596. 55 mba (n 1) [14] with emphasis in original. 56 bribosia (n 37): ‘reasonable accommodation is based on a fundamental observation: some individuals, because of an inherent characteristic they have, such as disability or religion, are prevented from performing a task or from accessing certain spaces in conventional ways. since society is organised primarily on the basis of people who do not share those traits, the former may be unable to access employment, services, or other activities. hence, the interaction between an individual’s characteristics and the physical, social or normative environment ultimately deprives him/her of the advantages of an employment or of a service which, in principle, should be open to everyone.’ 292 the denning law journal the reasonable accommodation test is admittedly not without its downsides, none of which are insurmountable hurdles.57 on its own, a positive obligation to accommodate religion or belief would potentially create privilege over other protected characteristics (except, as the law currently stands, for disability). but this is an argument for extending reasonable accommodation to all protected grounds. as lady hale explained in both her lecture and judgment in bull, the reasonable accommodation test does not necessarily assist christians who deny the provision of goods and services to others.58 whilst it may be tempting to limit reasonable accommodation to lady hale’s first category of cases and not the second (thus sidestepping the “clash” of equalities regulations)59 that would still leave a large area of law open to be considered under the existing and unsatisfactory indirect discrimination mechanism.60 it is possible that there may be religions or beliefs which qualify for protection even though they may be reasonably thought of as pernicious, and it is unclear (following nicholson) whether political beliefs would fall within the protections – yet both of these criticisms are true of the legal status quo. moreover, the reasonable accommodation test sharpens scrutiny on the practical, real relationships between employer and employee, and does not dress this balance up in abstractions. as lady hale put it when advocating the convention approach over the eu law approach, “courts and tribunals have a natural eye for what they see as the merits of the case. if they think that there is a good reason for a difference in treatment they will try and find a reason why it is not unlawful.”61 the reasonable accommodation test gives more latitude to apply that “natural eye” and, in doing so, it points in spirit towards an objective assessment of competing interests. it thereby takes the sting out of laws’ lj remark that “[t]he conferment of any legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled; it imposes 57 gwyneth pitt, ‘taking religion seriously’ (2013) 42 ilj 398, 405-6; aileen mccolgan, ‘class wars? religion and (in)equality in the workplace’ (2009) 38 ilj. 58 smith and chymyshyn v knights of columbus and others (2005) bchrt 544 and eadie and thomas v riverbend bed and breakfast and others (no 2) (2012) bchrt 247, both cases before the british columbia, canada, human rights and broadly analogous to bull (n 24) and black (n 34). 59 bull (n 24); black (n 34); r (core issues trust) v transport for london (secretary of state for culture, media and sport and minister for women and equalities intervening) [2014] ewca civ 34. 60 see gibson (n 23). 61 ibid 5. 293 case commentary compulsory law not to advance the general good on objective grounds, but to give effect to the force of subjective opinion”.62 so, if the canadian model were applied to mrs mba’s case, would the outcome have been any different? reasonable accommodation applied to mrs mba’s case the eat distilled the background to the council’s policy of contractually obliging staff to work on sundays as follows. brightwell provided an important community care function which required continuity of care “insofar as possible”, as a lack of such continuity increased the risks of significant behavioural changes in children going unnoticed. national standards required minimum levels of staffing experience and provision for both male and female workers at all times. there were set patterns for daily shifts and weekly and monthly rotas which provided alternative 24-hour cover by three (or sometimes four) members of staff, which brightwell’s management were adamant that it was “not possible to alter”. there were only five full-time members of staff when brightwell was established for nine personnel; agency and locum staff were hired as necessary, but this was a more expensive option, especially for weekend cover. mrs mba’s employment contract included the duty of working on occasional sundays.63 the eat summarised the tribunal’s findings on the council’s legitimate aim in its policy of “ensuring (a) an appropriate gender balance on each shift, (b) an appropriate seniority mix on each shift, (c) a cost-effective service in the face of budgetary constraints, (d) fair treatment of all its staff, and (e) continuity of care in staff looking after the children at the brightwell”.64 the council also submitted (in their internal appeal process) that it was “concerned about the impact of continuing on a permanent basis to accommodate [mrs mba’s] request not to work sundays. it limited flexibility. it affected other staff. they would have to cover sunday shifts disproportionately, and it would reduce their opportunity to have a full week’s leave. it was more costly to the council. it provided less well-trained staff, since agency staff would have to cover and they were less well trained. thus the quality and continuity of service to children with disabilities would not always be so high.” the more limited use of agency and locum staff was also sought by the council. the conclusion was that “[w]here possible, requests in 62 mcfarlane v relate avon limited [2010] ewca civ 880 [21]. 63 ms c mba (n 6) [4]-[8]. 64 ibid [18]. 294 the denning law journal respect of faith days would be accommodated but specific days off as a matter of routine could not…be accommodated.” 65 mrs mba’s claim to religious freedom in respect of her sabbatarian belief was in the context that she had a sincere belief that was worthy of respect, and that that belief was a manifestation of her faith that was a fundamental part of her autonomy and human dignity. more specifically, she suggested to the tribunal and eat that there were ways the council could circumvent the problem: using agency or bank workers, recruiting an additional female permanent employee, scheduling one of two other female employees or an experienced locum to cover sundays, or redeploying members from a related team in the council.66 applying the arguments on both sides to the canadian test, it is more likely than not that mrs mba’s case would have been decided differently and that her sabbatarianism would have been reasonably accommodated. although the council applied the obligation of sunday working for a purpose rationally connected to the continued and smooth running of brightwell, and that the council acted in an honest and good faith belief that the obligation was necessary for the fulfilment of that work-related purpose, it was less than likely that the obligation was reasonably necessary for that purpose. this is because, it is submitted, the council could not show that it would be impossible67 to accommodate mrs mba without imposing undue hardship, for the following reasons. (a) although the tribunal did not delve deeply into the council’s finances, the marginal financial cost of one additional employee to a london borough to cover mrs mba’s sunday working is likely to be minimal (if not de minimis). the problem for the council was not the cost of employing a full-time member or members of staff, but in the extra expense of temporary and agency staff, which they were reluctant to employ. (b) although the impact on staff morale was a concern, it is far from certain that it would have been impossible to ameliorate through proper and effective personnel management by the council. there is no competing protected characteristic that is mutually exclusive with mrs mba’s religious freedom. no collective agreement or other trade union compact was claimed to affect the council’s relationship with 65 ms c mba (n 6) [19]. 66 ibid [21]. 67 see mba (n 1) [24] for a stricter test than the remark of maurice kay lj that there was ‘really no viable or practicable alternative way of running brightwell effectively’. 295 case commentary mrs mba. it was likely that, should mrs mba’s case be resolved pragmatically in her favour, positive public relations would accrue to the council as a consequence. (c) there were clear arguments for interchangeability of staff, as mrs mba’s counsel argued throughout, and several other reasonable options lay open to the council (albeit at varying levels of expense). the employer was a large entity with an associated “outreach” team which could have provided alternative staff cover. (d) so far as legal obligations on the employer were concerned, there was no evidence it would have been impossible to take accommodating steps without compromising safety. these measures could, in all likelihood, have been taken in such way as to comply with national minimum standards. (e) mrs mba had already been allowed to not work on sundays for over two years, showing that a reasonable adjustment could be made to the council’s staff roster and subsequently undermining the council’s claim that it was “not possible to alter” staff shift patterns. conclusion there is always an uneasy dynamic in english law, as judges expand the scope of religious protections in some directions whilst narrowing them in others in response to cultural changes.68 in the limited circumstances of mrs mba’s case at least, it is time to move from the negative injunction – “do not interfere without justification in a protected right” – to the positive duty of reasonable accommodation.69 68 this is sharply shown in the changed attitude and protections given to the church of scientology between the court of appeal in r v registrar general, ex parte segerdal and another [1970] 2 qb 697 (ca) and the supreme court in r (hodkin and another) v registrar general of births, deaths and marriages [2014] ac 610 (sc), which redefined scientology as a religion and thus allowed the registration of scientology buildings as places for the valid conduct of marriage ceremonies. lord toulson pithily noted how cultural and normative change shaped the acceptability of scientology as a form of religious worship (at [61]): ‘in my view the meaning given to worship in segerdal was unduly narrow, but even if it was not unduly narrow in 1970, it is unduly narrow now.’ 69 in a speech to the law society of ireland on 13 june 2014, which largely re-iterated her comments at yale, lady hale appeared to suggest that the right of reasonable accommodation could provide an overarching test that draw in and unified the many 296 the denning law journal this takes religious protections away from the “specific circumstances” defence used by employers, who argue that employees put themselves voluntarily in a position where their religious freedoms are curtailed. employees who cannot square such restrictions with their conscience should quit and find another job – a particularly pernicious idea in a time of high unemployment and an ever more specialised labour market and one explicitly rejected by the strasbourg court in eweida.70 in an increasingly diverse society with more religions and beliefs finding legal protection, employers risk losing valued staff and employees risk becoming ostracised from mainstream employment, creating social silos as people congregate by creed in the workplace. as a matter of public policy, this is very undesirable. given the judicial push for a more individualised set of anti-discrimination religious protections and the complexities in contemporary anti-discrimination law, it is time for the reasonable accommodation of religious freedom to be revisited. ‘different strands’ of protections for freedom of religion and belief. she also hinted that mrs mba’s case may yet be appealed to the uk supreme court. lady hale (n 22). 70 eweida (n 14) [83]: ‘given the importance in a democratic society of freedom of religion, the court considers that, where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate.’ 297 case commentary summary introduction/case summary the problems with anti-discrimination measures derived from eu law the reasonable accommodation of religious rights: an alternative approach reasonable accommodation applied to mrs mba’s case conclusion unincorporated associations: property holding, charitable purposes and dissolution 246 denning law journal 2014 vol 26 pp 246-260 case commentary no burqas we’re french! the wide margin of appreciation and the ecthr burqa ruling sas v france (application no 43835/11) unreported, july 1, 2014 (ecthr) grand chamber susan s m edwards∗ background in the 1970s in parts of the middle east and in the gulf, (united arab emirates, oman and qatar especially), the burqa or niqab when worn was worn by women from tribal regions only. otherwise known as a “batoola” this garment is a head and face covering with an area of mesh covering the eyes, another variation is provided by a mask covering the face and nose. jonathan raban in 1979 observed such sights in london “...it was on the earl’s court road that i first saw the strange beak shaped foil masks of gulf women...”1 there has been a modernist revival in these once rare face coverings for a multiplicity of reasons and correspondingly the wearing of them contain several meanings. the burqa is worn for political, religious and other reasons, but also although not exclusively it is a garment intended to keep women in subjection. stuart hall in interpreting the work of frantz fanon’s 1960’s writings on the burqa (then called the veil) for algerian women, explained “no sign is fixed in its meaning”2 emphasising the fluidity of the burqa and also its capacity for appropriation by others. this is also true when considering the symbolic significance of the burqa today. wearing it is defended as a right to choose, albeit in parts of asia, for example in afghanistan in the tribal regions, the burqa is a requirement for women. ∗ ba, ma, llm, phd, professor of law and dean of law, university of buckingham; barrister. member of the ewi and expert witness in the case of d(r), r v [2013] ew misc 13 (cc). 1 jonathan raban, arabia (picador 1979) 11. 2 frantz fanon, studies in a dying colonialism (new york, monthly review press, 1965). see also frantz fanon: black skin, white mask / directed by isaac julien, (video pal format) 1996; rita faulkner, ‘assia djebar, frantz fanon, women, veils, and land’ (1996) 70 world literature today, 847. the denning law journal 247 whilst in some parts of africa and the middle east wearing the burqa is expressly prohibited. in the west and on the streets of london (following recent patterns of migration) the burqa is an increasingly common sight, and whilst it might have been worn by a woman who was subject to the norms of her own society and merely visiting the united kingdom, many women who choose to settle in the united kingdom and desire united kingdom nationality are also wearing the burqa. this demonstration and visible representation of otherness has created anxiety, provoked public debate and criticism, and in france and belgium, prohibition. the arguments against the burqa are several including, amongst others, that the burqa is imposed, that it is oppressive and demeaning and contravenes gender equality, and that it poses a threat to national security. the argument for the freedom to wear the burqa aligns with the obligation to preserve and protect multi-culturalism and a belief that dress choice is a fundamental human right. feminists urging gender equality and respect for human rights are divided, some regard the burqa as a vile manifestation of brutal patriarchy arguing that the pursuit of gender equality trumps any other individual rights such that its prohibition is justified. others contend that whatever the burqa may represent the state has no right to interfere with individual rights. the majority (fifteen votes to two) judgment, in the case of sas v france,3 held that the objective of “living together” and the overriding need for effective social communication rendered the prohibition necessary, and ruled that the french prohibition on the burqa in public places fell within the margin of appreciation and therefore was not in breach of european convention on human rights (echr). they declared unanimously, the complaints, concerning articles 8, 9 and 10 of the convention, taken separately and together with article 14 of the convention, admissible and the remainder of the application inadmissible; and held by fifteen votes to two, that there had been no violation of article 8 of the convention; by fifteen votes to two, that there had been no violation of article 9 of the convention; unanimously, that there had been no violation of article 14 of the convention taken together with article 8 or with article 9 of the convention; and unanimously, that no separate issue arises under article 10 of the convention, taken separately or together with article 14 of the convention. the two dissentient judges, judges nussberger and jäderblom, contended that the social objective of tolerance within a democratic society protected and of necessity embraced the right to wear the burqa irrespective of its intrinsic meaning for the individual concerned. 3 sas v france application no 43835/11 (unreported, echr 1 july 2014) grand chamber. case commentary 248 the legal background the french law in october 2010, the french parliament introduced a law, no 2010-1192, to “prohibit the act of aiming to conceal the face in public” (nul ne peut, dans l’espace public, porter une tenue destinée à dissimuler son visage). the law came into force on 11 april 2011. “article 1 – no one shall, in any public space, wear clothing designed to conceal the face. article 2 (i) – for the purposes of the application of section 1, the public space shall be composed of the public highway and premises open to the public or used for the provision of a public service. (ii) – the prohibition set forth in section 1 herein above shall not apply if such clothing is prescribed or authorised by legislative or regulatory provisions, is authorised to protect the anonymity of the person concerned, is justified for health reasons or on professional grounds, or is part of sporting, artistic or traditional festivities or events. article 3 – failure to comply with the prohibition set forth in section 1 shall be punishable by the fine envisaged for offences of the second category. the duty to attend a citizenship course as referred to in 8 of article 131-16 of the penal code may be ordered at the same time as, or in lieu of, the payment of a fine. article 4 – whosoever shall, by means of threats, duress or constraint, undue influence or misuse of authority, compel another person, by reason of the sex of said person, to conceal their face shall be liable to a punishment of one year’s imprisonment and a fine of €30,000. when the offence is committed against a minor, the punishment shall be increased to two years’ imprisonment and a fine of €60,000.” a similar prohibition was introduced in belgium. on 28 april 2011, art 563 bis of the belgian criminal code established that persons, “will be punished with a fine of 15 to 25 euro and/or detention of 1 to 7 days, those who, except for contrary legal provisions, are present in places that are accessible to the public with their faces completely or partially covered or hidden, such as not to be recognisable.” women in france who wished to wear the burqa, including those who considered the prohibition an affront to personal freedom, protested and several women who wished to wear the burqa refused to comply with the law. since the passing of this law, whilst precise figures are difficult to establish, it is estimated that over 500 women have been prosecuted across france with the denning law journal 249 some women mounting challenges under the echr.4 hind ahmas was one such litigant, who when stopped by police said she was willing to confirm her identity but refused to remove her face veil. she was brought before the tribunal de grande instance (court of first instance for civil and criminal matters) and sentenced to a 15 day citizenship course.5 she appealed the decision, to the cour de cassation in pursuance of exhausting domestic remedies (a requirement of art 35(1) of the echr). the ahmas case (no 12808091) was referred to in the judgment of sas. “the court of cassation was called upon to examine an appeal on points of law (no 12-808091) against a judgment of the community court of paris, dated 12 december 2011, in which a woman had been ordered to follow a two-week citizenship course for wearing the fullface veil with the aim of protesting against the law of 11 october 2010 in the context of a demonstration for that purpose outside the elysée palace. examining the arguments submitted by the appellants under article 9 of the convention, the criminal division found as follows on 5 march 2013: ‘..whilst the community court was wrong to disregard the religious reasons for the impugned demonstration, the judgment should not be overruled in so far as, although article 9 of the convention ... guarantees the exercise of freedom of thought, conscience and religion, paragraph 2 thereof stipulates that this freedom is subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others; ... this is the case for the law prohibiting the full covering of the face in public places, as it seeks to protect public order and safety by requiring everyone who enters a public place to show their face; ...’ ”6 4 see for example, alison hird, ‘one year of france's burqa bans yields 20 fines and no men prosecuted’ (rfi, 11 april 2012) <http://www.english.rfi.fr/france/20120411-one-year-frances-burka-ban-yields-20fines-and-no-men-prosecuted> accessed 10 august 2014. see also the case of cassandra belin, afp, ‘woman convicted for wearing burqa in france’ (dawn, 8 january 2014) <http://www.dawn.com/news/1079182> accessed 10 august 2014> 5 see angelique chrisafis, ‘france’s burqa ban: woman are ‘effectively under house arrest’’ (the guardian, 19 september 2011) <http://www.theguardian.com/world/2011/sep/19/battle-for-the-burqa>. 6 sas (n 3) [34]. case commentary 250 the case for sas before the ecthr sas is a 24 year old french citizen originally from pakistan, and a (sunni) muslim. she said that she wished to wear the burqa in public. she refuted the french government’s several arguments that the burqa prohibition had the legitimate aim of public safety; that for women to cover their faces was incompatible with the principle of gender equality; and that women who wore the burqa were either forced to do so, or did so in order to proselytise others. in contradistinction, she contended that wearing the burqa was instead a mark of women’s emancipation, self-assertion and essentially participation in society. she submitted that as a devout believer her faith was an essential element of her life and asserted that “a truly free society was one which could accommodate a wide variety of beliefs, tastes, pursuits, customs and codes of conduct, and that it was not for the state to determine the validity of religious beliefs.”7 she alleged a violation of articles 3, 8, 9, 10 and 11, of the echr, taken separately, and together with article 14. it may be helpful to rehearse the substance of these articles. article 3 of the convention, states: “no one shall be subjected to torture or to inhuman or degrading treatment or punishment.” it was, she contended, degrading for her to be required to remove the veil in public places and as such that article had been or would be violated. she contended a breach of article 8 which states: “1. everyone has the right to respect for his private and family life, his home and his correspondence.” she claimed that her right to religious belief and manifestation of that belief under article 9 had been infringed. “everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.” article 10 which secured the right to speech asserts. “everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority” she claimed had also been violated as had article 11 the right to assembly. she argued that wearing the burqa was an aspect of her right to speech and that in prohibiting her from wearing a burqa in public she was prevented from association with others. article 14 of the convention was also violated, she contended: “the enjoyment of the rights and freedoms set forth in [the] convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 7 ibid [78]. the denning law journal 251 her case was considered in public on 27 november 2013, significantly, she was represented by united kingdom lawyers, and six third party interveners were joined marking the importance that this case had generated within the human rights community across europe. the belgian government was the only intervener expressing support for the ban pointing out that a law prohibiting the wearing of any “clothing entirely or substantially concealing the face” had also been passed in belgium. the remaining five interveners all opposed the ban, albeit presenting slightly different arguments. amnesty international submitted, “in the third party’s submission it is an expression of gender-based and religion-based stereotyping to assume that women who wear certain forms of dress do so only under coercion; ending discrimination would require a far more nuanced approach.”8 article 19 submitted that the rights protected under the echr did not support general prohibitions on covering the face in public and expressed the concern that such a ban may lead to, “confinement of the women concerned in the home,” and “their exclusion from public life and marginalisation” 9 and might “expose muslim women to physical violence and verbal attacks.”10 the human rights centre of ghent university was concerned that such a ban would result in the targeting of such woman and to negative stereotyping.11 liberty also shared this concern.12 the open society justice initiative considered that there was no consensus on the issue in europe and that blanket bans were disproportionate.13 admissibility legal argument was heard with regard to whether the claim of sas was admissible (see also er and ors v turkey)14 and (1) whether she had exhausted her remedies in the domestic courts under the principle of subsidiarity as is required under art 35(1) (see varnarva and others v turkey, 15 and (2) whether she was in fact a victim (see ouardiri v switzerland and ligue des musulmans de suisse v switzerland).16 8 ibid [91]. 9 ibid [92-3]. 10 ibid [93]. 11 ibid [95]. 12 ibid [99]. 13 ibid [102]. 14 application no 23016/04 (echr 31 july 2012) grand chamber. 15 application nos 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90 (echr 18 september 2009) grand chamber. 16 application no 65840/09 and 66274/09 2009 (echr 28 june 2011) ‘the minarets case’. case commentary 252 “the government argued that, in the absence of any domestic proceedings, the application should be declared inadmissible for failure to exhaust domestic remedies. the ecthr did not agree and held the application to be admissible since there was no evidence leading the court to draw the conclusion that, the applicants conduct, had hindered the proper functioning of the court.”17 the interpretation of these two requirements has been well rehearsed by the european court of human rights (ecthr). the french government contended that the sas case was an abuse of an individual application, and under article 35(3)(a) made an application to the court for a declaration of inadmissibility. further, the french government described her application as containing: “...a totally disembodied argument, lodged on the very day the prohibition on concealing the face in public came into force by an applicant who ha[d] not been the subject of domestic proceedings and of whom nothing [was] known, except what she [had] seen fit to say about her religious opinions and about her uncertain way of expressing them in her behaviour.”18 they also noted impliedly disapprovingly that further applications had also been made by the united kingdom lawyers who were representing the applicant. notwithstanding this criticism the grand chamber of the ecthr concluded that her application amounted to an actio popularis, that is to say an action brought by a member of the public on a point of public order. the court concluded that victim status is not the exclusive preserve of those whose rights have already been breached but as case law demonstrates may also include putative or potential victims.19 thin and veiled the courts reasoning on the side of the applicant, the court accepted that the drafting of the french law may have “upset” some sections of the muslim community and recognised as valid the concerns that the ban may give rise to islamophobia but rejected the argument of the government that the ban was necessary for 17 sas (n 3) [59]. 18 ibid [62]. 19 ibid [53]. see dudgeon v the united kingdom application no 7525/76 (22 october 1981) series a no 45, court plenary, norris v ireland application no 10581/83 (26 october 1988) series a no 142, court plenary, and and modinos v cyprus application no 15070/89 (22 april 1993) series a no 259. court chamber. the denning law journal 253 public security.20 the court accepted that there had been, an “interference” with or a “limitation” of the exercise of the applicant’s rights protected by articles 8 and 9 of the convention21 and gave what it described as a “detailed examination” of whether the aim was legitimate.22 in considering this the court took into account the arguments concerning the need to see the face in social interaction and said this: “the court is therefore able to accept that the barrier raised against others by a veil concealing the face is perceived by the respondent state as breaching the right of others to live in a space of socialisation which makes living together easier. that being said, in view of the flexibility of the notion of ‘living together’ and the resulting risk of abuse, the court must engage in a careful examination of the necessity of the impugned limitation.”23 when considering the obligation of furthering the objective of “living together” it said this: “consequently, having regard in particular to the breadth of the margin of appreciation afforded to the respondent state in the present case, the court finds that the ban imposed by the law of 11 october 2010 can be regarded as proportionate to the aim pursued, namely the preservation of the conditions of ‘living together’ as an element of the ‘protection of the rights and freedoms of others.’”24 however, at the same time the court said that “pluralism, tolerance and broadmindedness are hallmarks of a ‘democratic society’”25! partly dissenting opinion was offered by judges nussberger and jäderblom who both doubted whether the ban pursued a legitimate aim, and declared it unnecessary in a democratic society, arguing that the alleged fears about the burqa were created by the philosophy attaching to dress codes and its symbolic meaning.26 they said: 20 sas [148], [149] and [139] respectively. 21 ibid [110]. 22 ibid [114]. 23 ibid [122]. 24 ibid [157]. 25 ibid [128]. 26 ibid [6]. case commentary 254 “nevertheless, we cannot share the opinion of the majority as, in our view, it sacrifices concrete individual rights guaranteed by the convention to abstract principles. it is doubtful that the blanket ban on wearing a full-face veil in public pursues a legitimate aim (b). in any event, such a far-reaching prohibition, touching upon the right to one’s own cultural and religious identity, is not necessary in a democratic society (c). therefore we come to the conclusion that there has been a violation of articles 8 and 9 of the convention (d).”27 commentary this of course may be the first case where the question of criminalisation of the burqa has come before the ecthr, but domestic case law across several jurisdictions has frequently considered whether the burqa may be worn by school pupils,28 or teachers29 and more recently whether the burqa may be worn in court,30 as well as women fleeing from the imposition of the burqa31 and also those fleeing to the united kingdom so they may wear the burqa.32 tolerance and shock in dissent judges nussberger and jäderblom asserted that even if the french governments interpretation of the burqa was correct “...there is no right not to be shocked or provoked by different models of cultural or religious identity, even those that are very distant from the traditional french and european lifestyle”33 since, as the court has previously conceded, the convention protects not only those opinions “that are favourably received or regarded as 27 ibid [a2]. 28 see x v y school [2007] ewhc 298 (admin), [2008] 1 all er 249. 29 azmi (appellant) v kirklees metropolitan borough council (respondent) [2007] irlr 484. 30 in canada see r v ns [2012] scc 72 (canlii), in the united kingdom see r v d (r) [2013] eq. l.r. 1034, [2014] 1 lrc 629. see also aan (veil) [2014] ukut 00102 (iac). see also commentaries on these cases for example, susan edwards, ‘proscribing unveiling: law a chimera and an instrument in the political agenda’ in eva brems (ed), the experiences of face veil wearers in europe and the law (cambridge university press 2014) 278-297. 31 r (on the application of shakeel) v secretary of state for the home department [2012] ewhc 1169 (a), co/4528/2010. 32 r (on the application of baradaran) v secretary of state for the home department, court of appeal (civil division) 24 june 2014 [2014] ewca civ 854; (2014) 164 (7613) nlj 18; times, july 15, 2014. 33 sas [b7]. https://www.lexisnexis.com/uk/legal/search/enhrunremotelink.do?a=0.151644145317117&service=citation&langcountry=gb&backkey=20_t20429222840&linkinfo=f%23gb%23ewhcadmin%23sel1%252007%25page%25298%25year%252007%25&erskey=23_t20429204046 https://www.lexisnexis.com/uk/legal/search/enhrunremotelink.do?a=0.30918236810898636&service=citation&langcountry=gb&backkey=20_t20429222840&linkinfo=f%23gb%23aller%23vol%251%25sel1%252008%25page%25249%25year%252008%25sel2%251%25&erskey=23_t20429204046 http://canlii.ca/en/ca/scc/doc/2012/2012scc72/2012scc72.html the denning law journal 255 inoffensive or as a matter of indifference, but also ... those that offend, shock or disturb” (see mouvement raëlien suisse v switzerland [gc],34 and stoll v switzerland [gc]).35 in this sense the dissentient judgments return us to the court in handyside v the united kingdom36 which held that information and ideas which “offend, shock or disturb the state or any sector of the population” must be allowed to circulate in order to safeguard the “pluralism, tolerance and broad-mindedness without which there is no democratic society.” furthermore, elsewhere the court has held: “although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position.”37 however the spirit of tolerance, pluralism and promotion of multi-culturalism did not result in the court’s refusal to uphold the ban. in an anti-pluralist stance the burqa ban has sought to eradicate a source of tension or difference within french society. the french ban and the opinion of the ecthr sends out the message that matters of interest and habit that may characterise a minority, where disapproved of by the majority, will in fact not be tolerated but simply eradicated and erased and extinguished. proscribing “living together” the central precept in the french government’s reasoning was at least for the court a new concept of “living together”. surprisingly, neither the french government nor the court really had much to say on this concept albeit that it became the guiding justification for the ban. certainly the court spent much time reviewing other arguments and justifications for previous strasbourg jurisprudence in which the court had upheld state bans on religious dress, but such discussions lent nothing to clarifying the central justificatory concept of “living together.” it did however assist in examining how the margin of appreciation had been applied in such cases. “however, for their part, the government indicated that it was a question of responding to a practice that the state deemed 34 application no 16354/06 (echr, 13 july 2012) 48. 35 application no 69698/01 (echr, 10 december 2007) 101. 36 application no 5493/72 (7 december 1976) series a no 24, 49. 37 young, james and webster v the united kingdom application no 7601/76, 7806/77 (13 august 1981) 63. case commentary 256 incompatible, in french society, with the ground rules of social communication and more broadly the requirements of ‘living together’. from that perspective, the respondent state is seeking to protect a principle of interaction between individuals, which in its view is essential for the expression not only of pluralism, but also of tolerance and broadmindedness without which there is no democratic society (see paragraph 128 above). it can thus be said that the question whether or not it should be permitted to wear the full-face veil in public places constitutes a choice of society.”38 the concept of “living together” finds a place in a document published by the council of europe on the media39 but not in the strasbourg jurisprudence. the new concept of “living together” whatever this means is insufficiently defined thus permitting an extremely wide interpretation. if the french government accorded such a central place to banning the burqa in the pursuance of the objective of “living together” the reality on the ground is in fact the reverse across europe where whilst some very different communities do indeed live together, many prefer to live apart. looking to the experience of the united kingdom as an example, it is certainly true that a diversity of groups are now practising and declaring their faith in a way that would simply not have been possible in the united kingdom’s avowedly christian country of the 1970’s. mirza. senthilkumaran and ja’far in research published by the policy exchange found that many british born muslims in a search for community and identity are turning to islam.40 in london’s southall 83% of the community are ethnic minorities largely originating from the asian subcontinent.41 elsewhere, the haredi jewish community of stamford hill in north london (haredi means “fearful,”) are in fact 90% of the community. in furtherance of their haredic faith in 2003 the local council permitted an “eruv” which is a symbolic enclosure or symbolic walled city within which religious observances must be kept. it has a boundary 11 miles long and encloses an area of 6.5 square miles covering hendon, golders green and hampstead garden suburb, together with parts of child’s hill, cricklewood, east finchley, finchley and mill hill. clearly some communities prefer to live apart and practice their faith within their 38 sas (n 3) [153]. 39 see living together, yasha lange (ed), (council of europe, april 2009) <http://www.coe.int/t/dghl/standardsetting/media/doc/livingtogether_en.pdf>. 40 munira mirza, abi senthilkumaran and zein ja’far, living apart together: british muslims and the paradox of multiculturalism, (policy exchange 2007). 41 see <http://www.visitsouthall.co.uk/local_info/southall_middlesex.php>. the denning law journal 257 communities. bikhu parekh42 observes that if some cultures wish to live within their own communities we should respect them for that. and the dissenting judgments in sas echo this: “furthermore, it can hardly be argued that an individual has a right to enter into contact with other people, in public places, against their will. while communication is admittedly essential for life in society, the right to respect for private life also comprises the right not to communicate and not to enter into contact with others in public places – the right to be an outsider.”43 france a land of intolerance parekh argues that at the heart of multi-cultural society lies the requirement of tolerance.44 therefore we should tolerate living together in diversity and also living apart. over the past three years we have witnessed european leaders expressing a view that prioritises the host state above those of minorities.45 where is tolerance then in the decision of the court or indeed in french society and government policy? in the language of the universal declaration on human rights, the opening clause of its preamble, upholds and affirms human dignity: “whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” article 1 recognises that, “all human beings are born free and equal in dignity and rights.” it also states that “8....tolerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society” (see gündüz v turkey).46tolerance however is something that french society has decided to set aside in favour of an enforced “living together” but in accordance with the dominant norms of french society. this enforced “living together” is nuanced in such a way that there are disturbing echoes of france’s colonialist past where the forcible unveiling of algerian women in a claim to liberate them at the same time allowed the ulterior motive of domination and conquer to burgeon. again the assault on the arab female body is more about alterity cast in a paternalistic benevolent feigned motive and desire to live together, when the reality is to enforce the subaltern under and beneath. 42 bikhu parekh, rethinking multiculturalism: cultural diversity and political theory (harvard university press, 2000). 43 sas n 3 [8]. 44 parekh n 42 168. 45 rimvydas ragauskas, 'paradox of multiculturalism: tolerance for the intolerant?' (geopolitika, 10 september 2012) accessed on <http://eurodialogue.eu/paradox-ofmulticulturalism-tolerance-for-the-intolerant>. 46 application no 35071/97 (14 june 2004) 40. case commentary 258 the french path to this “living together” has been one of cultural genocide where anxiety about “the other” has resulted in oppression, domination and enforced assimilation. the history of france’s treatment of “the other” has been marked by intolerance. as far back as 1925, les cahiers du mois sent out a questionnaire to its readership in which it explored, with over a 100 questions, its perceptions of “the orient”, including questions which addressed the concern that the orient was a dangerous place.47 the court was eager to be seen to promoting harmony. “the court reiterates that remarks which constitute a general, vehement attack on a religious or ethnic group are incompatible with the values of tolerance, social peace and non-discrimination which underlie the convention and do not fall within the right to freedom of expression that it protects (see, among other authorities, norwood v the united kingdom (dec), no 23131/03, echr 2004-xi, and ivanov v russia (dec), no 35222/04, 20 february 2007).”48 fuelling intolerance so what about the arguments advanced by four of the interveners that the ban would actually increase the problem of islamophobia and what about the courts acceptance that this would indeed be the effect of such a ban? clearly the decision reflects the assimilationist thrust of france. parekh argues that societies and cultures are also moral systems and society needs to show that diversity whatever that may be, provided it does not harm others, is justified and to be defended.49 indeed, there is much evidence that hate crimes against women wearing burqas are becoming increasingly prevalent. it was also emphasised by the court “that a state which enters into a legislative process of this kind takes the risk of contributing to the promulgation of stereotypes and intolerance, when it has a duty, to promote tolerance.”50 certainly data from the criminal statistics england and wales for 2011/12 and 2012/13,51 estimated an average of 70,000 incidents of 47 nathaniel berman, ‘the appeals of the orient: colonized desire and the war of the riff' in karen knop (ed), gender and human rights (oxford university press 2004) 194. 48 sas n 3 [149]. 49 parekh (n 42) 166. 50 sas n 3 [149]. 51 see an overview of hate crime in england and wales (home office, office for national statistics and ministry of justice december 2013) <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file /266358/hate-crime-2013.pdf> accessed 12 august 2014. http://hudoc.echr.coe.int/sites/eng/pages/search.aspx#%7b%22appno%22:%5b%2223131/03%22%5d%7d http://hudoc.echr.coe.int/sites/eng/pages/search.aspx#%7b%22appno%22:%5b%2235222/04%22%5d%7d the denning law journal 259 religiously motivated hate crime annually52 with muslim adults the most likely to be a victim of religiously motivated hate crime.53 in 2012/13, the police recorded 1,573 religious hate crimes, around one-quarter (24%) of religious hate crimes were recorded by the police as violence against the person and of these violent crimes, 64 per cent involved injury.54 refugees fleeing from intolerance france will become an increasingly inhospitable place for women who wish to wear the burqa. already applications have been made by women for sanctuary in the uk fleeing france because of the criminalisation of those should they wear the burqa. in b and m v secretary of state for the home department,55 the father and daughter were iranian nationals and practising muslims, they arrived in france claiming asylum and later entered the united kingdom. the question for the court was whether they should be returned to france as the first country of arrival. they contended that they could not return to france because of the burqa ban already in force. the secretary of state responded by refusing the third country claim. b and m appealed on the basis that the decision to remove them to france violated their rights under art 8 and art 9 with art 14 of the convention so that the decision was unlawful, and was made in breach of the borders, citizenship and immigration act 2009 s 55.they also argued a violation of art 3. the court of appeal in r (on the application of baradaran) v secretary of state for the home department56 held that there claim under articles 8, 9 and 14 of the convention failed since the applicant would be permitted to wear her burqa at home and at places of worship. the ecthr in sas has expressed some anxiety about the french prohibition since such a prohibition creates a climate of exclusion. indeed, this state sponsored justification for stigmatisation and exclusion permitted by a wide margin of appreciation troubled the court who recognise the damage that will be done to community relations and ask what mechanisms will be put in place to address the fallout from this ruling. “in this connection, the court is very concerned by the indications of some of the third-party interveners to the effect that certain islamophobia remarks marked the debate which preceded the adoption of the law of 11 october 2010 (see the observations of the human 52 ibid appendix table 1.01. 53 ibid appendix table 1.14. 54 ibid, figure 4; appendix table 2.03. 55 [2013] ewhc 2281 (admin). 56 r (on the application of baradaran) (n 32). http://login.westlaw.co.uk/maf/wluk/app/document?src=doc&linktype=ref&context=10&crumb-action=replace&docguid=i8329f5d077fd11de9b59d6383b5296db http://login.westlaw.co.uk/maf/wluk/app/document?src=doc&linktype=ref&context=10&crumb-action=replace&docguid=i8329f5d077fd11de9b59d6383b5296db case commentary 260 rights centre of ghent university and of the non-governmental organisations liberty and open society justice initiative, paragraphs 98, 100 and 104 above). it is admittedly not for the court to rule on whether legislation is desirable in such matters. ...”57 notwithstanding their concern, the enormously wide margin of appreciation in this case results in a somewhat troubled ecthr upholding the ban. france must simply be urged to put in place strategies to prevent the explosion in hate crime that will inevitably follow.58 57 sas (n 3) [1]. 58 see the evidence of hate crime related to dress, ‘“maybe we are hated”: the experience and impact of anti-muslim hate on british muslim women’ (university of birmingham 2013) which found that of hate crimes reported 58% were against women and of those 83% were against women wearing a niqab or hijab. see also commission on british muslims and islamophobia, ‘islamophobia: a challenge for us all’ (the runnymede trust 1997). background the legal background the french law the case for sas before the ecthr admissibility thin and veiled the courts reasoning commentary tolerance and shock in dissent proscribing “living together” france a land of intolerance fuelling intolerance refugees fleeing from intolerance for the purposes of right to self-determination, how does one define people in context of kashmir 105 the denning law journal 2013 vol 25 pp 105 127 business, human rights and children: the developing international agenda olga martin-ortega and rebecca wallace  1. introduction business activities may have a significant impact on human rights including those of children who are no less susceptible to the potential effects than adults. that impact may not be adverse and can be positive. it may be indirect, for example via children‟s parents‟ and carers‟ access to resources and enjoyment of their own rights, or from affecting children‟s communities and environments in which they live. the impact may also be direct, through children‟s inclusion among the work force. moreover business activities have effects on their health and wellbeing, for example when children are the consumers of products and services provided by businesses. consideration of the role of the private business sector with regards to the fulfilment of children‟s rights is relatively recent. international attention on the effects business activities have on children has been fragmented until now, focussing on specific sectors, mainly child labour and economic exploitation. recent international developments, addressed to states and business enterprises, propose a more comprehensive approach. this article focuses on two: the unicef-global compact and save the children children‟s rights and business principles (crb principles), launched in may 2012, 1 and the committee on the rights of the child‟s general comment no. 16 on state obligations regarding the impact of the business sector on children‟s rights, published in april 2013. 2 both documents represent an important step in the consolidation of an international agenda for the protection of the rights of the child that takes into account the different challenges faced by children in the current economic system. these documents are a further step in the  dr olga martin-ortega is reader in public international law, university of greenwich and professor rebecca wallace is professor in international human rights and justice, robert gordon university. the authors would like to acknowledge the research assistance of karen wylie, robert gordon university. 1 unicef, global compact and save the children children’s rights and business principles, 2012: http://www.unglobalcompact.org/docs/issues_doc/human_rights/crbp/childrens_ri ghts_and_business_principles.pdf 2 crc/c/gc/16, 15 march 2013. the general comment was adopted on the committee‟s sixty-second session (14 january – 1 february 2013). business, human rights and children: the developing international agenda 106 development of a comprehensive approach which takes into consideration all the actors involved in the protection and promotion of children‟s rights, and moves away from a solely state-centric conception of international human rights obligations and responsibilities. the specific focus on how business activities impact children‟s rights is a recognition that not only the actions (or inaction) of the state affects their rights but it follows a general demand for businesses, as organs of society, to undertake responsibility in the fulfilment of human rights. in particular with regards to children‟s rights, it follows the increased recognition of children as socio-economic rights bearers, independently of the society or family unit of which they form part. 3 this article analyses the two recent instruments mentioned as well as providing insight on their potential impact in the developing agenda for business and children‟s rights. initially, it is important to contextualise these documents‟ adoption within wider business and human rights policy and other normative developments. 2. the business and human rights framework advances in technology have hastened the sharing of information and it is harder for businesses to hide behind closed doors. business enterprises face greater scrutiny and their decisions are publicised around the world. as a consequence of the globalisation of goods and services and increasing consumer awareness, it is no longer feasible to hold that the only responsibility of business is to accrue profit. financial gain may still remain the primary objective of business enterprises, but arguably this cannot now be pursued at any cost. the global compact and un norms the role of business vis-à-vis human rights has come in for greater international consideration since the mid 1990s, when the un human rights bodies started to pay attention to the negative impact of globalisation on human rights. 4 more specifically, in 1999, the un secretary general presented the global compact to the business community. the global compact comprises ten principles addressing human rights, labour standards, 3 a nolan, children’s socio-economic rights, democracy and the courts (oxford, hart publishing 2011) 7. 4 the extinct un commission on human rights appointed two special rapporteurs on the issue of globalization and its impact on the full enjoyment of human rights. see, un commission on human rights resolution 1999/59, globalization and its impact on the full enjoyment of all human rights, e/cn.4/res/1999/59, 28 april 1999. the denning law journal 107 the environment and corruption. 5 it is non-legally binding and not intended as a normative instrument. all that is required of businesses is to publicly sign up to the global compact‟s principles voluntarily and integrate them into commercial practices, including the relations with business partners. the global compact is an important tool for dialogue and awareness raising regarding the role of business in society and its capacity to respect, protect and promote human rights. however, its voluntary nature, along with the lack of a robust monitoring mechanism, denies its capacity to be more than that. in parallel to the process of launching and promoting the global compact the un sub-commission on the promotion and protection of human rights undertook the task of drafting a human rights instrument for business. in 2006 it proposed norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights. the norms adopted a bolder stance relating to the weight placed upon business enterprises claiming that: “within their respective spheres of activity and influence, transnational corporations and other business enterprises have the obligation to promote, secure the fulfilment of, respect, ensure respect of and protect human rights recognized in international as well as national law, including the rights and interests of indigenous peoples and other vulnerable groups.” 6 the norms proved to be highly divisive. although eagerly welcomed by some human rights groups and academics, states and the business sector were decisive in their rejection of the norms. 7 the main point of contention lay in the norms‟ attempt to attribute human rights duties to business, which envisaged legally binding obligations. the un guiding principles the current framework was put forward by john ruggie who was appointed as special representative to the secretary-general on the issue of human rights and transnational corporations and other business enterprises in 5 un global compact, the ten principles; http://www.unglobalcompact.org/aboutthegc/thetenprinciples/index.html. 6 un sub-commission for the protection and promotion of human rights, e/cn.4/sub.2/2003/12/rev.2 (2003), at section a.1, 4, (emphasis added). 7 see r m m wallace and o martin-ortega, „the un norms: a first step to universal regulation of transnational corporations‟ responsibilities for human rights?‟ (2004) 26 dublin university law journal 304-319. business, human rights and children: the developing international agenda 108 2005. 8 over the following six years ruggie developed the un framework, the „protect, respect and remedy‟ framework 9 and guidance for its implementation: the un guiding principles on business and human rights (hereinafter the guiding principles). 10 these were presented to and endorsed by the human rights council on june 16, 2011. 11 the guiding principles are grounded in recognition of: “(a) states‟ existing obligations to respect, protect and fulfil human rights and fundamental freedoms; (b) the role of business enterprises as specialized organs of society performing specialized functions, required to comply with all applicable laws and to respect human rights; (c) the need for rights and obligations to be matched to appropriate and effective remedies when breached.” 12 as can be seen from this the guiding principles avoid the controversy created by the norms in that ruggie clearly differentiates the roles for states and businesses, namely that the former has the obligation to respect, protect and fulfil human rights whereas businesses are expected to respect human rights. this was obviously a politically expedient move on ruggie‟s part and he succeeded in gaining consensus with his criticism of “ „the norms‟ exaggerated legal claims‟ that human rights law directly imposes a wide spectrum of duties on corporations.” 13 furthermore ruggie insisted on behalf 8 ruggie was appointed by then un secretary-general kofi annan under, un commission on human rights, resolution 2005/69, human rights and transnational corporations and other business enterprises, e/cn.4/res/2005/69, 20 april 2005. ruggie is berthold beitz professor of international affairs, harvard‟s kennedy school of government, and affiliated professor in international legal studies at harvard law school. 9 report of the special representative of the secretary-general on the issue of human rights and transnational corporations and other business enterprises, john ruggie, protect, respect and remedy: a framework for business and human rights, a/hrc/8/5, 7 april 2008. 10 report of the special representative of the secretary-general on the issue of human rights and transnational corporations and other business enterprises, john ruggie, guiding principles on business and human rights: implementing the united nations ‘protect, respect and remedy’ framework, a/hrc/17/31, march 21, 2011. 11 human rights council, resolution 17/4, human rights and transnational corporations and other business enterprises, a/hrc/res/17/4, 6 july 2011. 12 guiding principles, (n. 10) at 6. 13 jh knox, the human rights council endorses „guiding principles‟ for corporations, asil insight, august 1, 2011, volume 15, issue 21, 2. http://www.asil.org/pdfs/insights/insight110801.pdf. the denning law journal 109 of business enterprises “the responsibility [to respect human rights] stems from societal expectations rather than human rights law.” 14 the guiding principles are aimed primarily at states and are divided into three sections. section i relates to the state duty to protect human rights (principles 1 – 10). the founding principle is that states must “protect against human rights abuses within their territory and/or jurisdiction by third parties, including business enterprises.” 15 the onus lies with states to “set out clearly the expectation that all business enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their operations.” 16 however the guiding principles, in section ii (principles 11 – 24), also address the responsibilities of business enterprises and what is expected of them in relation to human rights, namely that they should “avoid infringing on the human rights of others and should address the adverse human rights impacts with which they are involved.” 17 the means by which this end should be sought is prescribed in guiding principle 15 which provides businesses must have: “(a) a policy commitment to meet their responsibility to respect human rights; (b) a human rights due diligence process to identify, prevent, mitigate and account for how they address their impact on human rights; (c) processes to enable the remediation of any adverse human rights impacts they cause or to which they contribute.” as this demonstrates the responsibility for businesses to respect human rights is not a passive one but requires businesses to actively put in place the means to execute this responsibility. businesses are expected to base their activities on the exercise of due diligence and have in place the processes and mechanisms to track, monitor and respond to any negative human rights impact their activities create. they are also required to implement systems to communicate widely any responses. human rights due diligence can be included within broader enterprise risk-management systems or be a separate, specific process. either way it should go beyond identifying risks for the company to include risks to rights-holders. this involves assessing the human rights context prior to commencing a business activity, where possible; identifying who may be affected; cataloguing the relevant human rights 14 ibid (emphasis in original). 15 guiding principle 1. the full text of the guiding principles and accompanying commentary can be accessed at: http://www.businesshumanrights.org/media/documents/ruggie/ruggie-guidingprinciples-21-mar-2011.pdf. 16 guiding principle 2. 17 guiding principle 11. business, human rights and children: the developing international agenda 110 standards and issues; and projecting how the proposed activity and associated business relationships could have adverse human rights impacts. these risks should be periodically reassessed throughout the lifespan of an activity or business relationship. 18 section iii of the guiding principles (principles 25 – 31) is concerned with access to remedy for those whose rights have been violated by business activity. states “should provide effective and appropriate non-judicial grievance mechanisms alongside judicial mechanisms.” 19 as the commentary to the guiding principles recognises “[u]nless states take appropriate steps to investigate, punish and redress business related human rights abuses when they do occur, the state duty to protect can be rendered weak or even meaningless.” 20 equally, the guiding principles require businesses to establish or participate in operational-level grievance mechanisms in order to provide effective means of redress for individuals and communities who may be adversely impacted (principle 29). it remains the case though that the guiding principles are non-legally binding and are of a voluntary nature. also the tools suggested by the guiding principles such as human rights impact assessments will often be developed, conducted and evaluated by the business enterprises themselves. this constructs an environment of self-regulation that could be open to abuse or apathetic monitoring. also, although the guiding principles address the need for states to ensure those whose human rights have been violated by the activities of businesses have access to effective remedies, they have been criticised for giving little attention to judicial remedy and for a lack of clarity regarding corporate liability for gross human rights abuses. 21 however despite these criticisms there has emerged a set of standards to which business is expected to comply in relation to human rights. the guiding principles have thus far been well received and have precipitated discussion at national and regional levels for developing national action plans to implement the framework. 22 18 commentary to guiding principle 18. 19 guiding principle 27. 20 commentary to guiding principle 25. 21 see, for example, the summary of discussions of the forum on business and human rights, prepared by the chairperson, john ruggie, a/hrc/fbhr/2012/4, 23 january 2013, http://www.ohchr.org/documents/issues/business/forumsession1/a_hrc_fbhr_2 012_4_en.pdf. 22 several eu countries are embarked in the drafting of national action plans after the european commission invited all member states to implement the un guiding principles at national level in 2011, communication from the commission to the european parliament, the council, the european economic and social committee and the denning law journal 111 3. businesses’ fragmented approach towards children’s rights to date attention on the impact private sector activities has on children‟s rights has been fragmented and focussed on specific sectors, mainly child labour and the privatisation of public services. this section briefly explores the current legal framework with regards to the economic dimension of children‟s rights whilst the following analyses the recent developments towards a more comprehensive approach. child labour most of the advances made in international law in relation to children‟s rights and business have focussed on child labour and child economic exploitation. the legal framework to combat child labour has evolved since the adoption of the 1989 convention on the rights of the child (crc), even if child labour and child exploitation remains a present and sad reality. article 32 crc explicitly establishes that the child has the right to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child‟s education, or to be harmful to the child‟s health or physical, mental, spiritual, moral or social development. equally, the supplementary convention on the abolition of slavery, the slave trade and institutions and practices similar to slavery, the universal declaration of human rights (art. 4), the international conventions on civil and political rights and economic, social and cultural rights (arts 8.2 and 10.3 respectively), all prohibit the economic exploitation of children. specifically in the framework of the international labour organisation (ilo), child labour comes within the meaning of forced labour as regulated in the convention concerning forced or compulsory labour no. 29 and convention concerning the abolition of forced labor no. 105. children‟s work is also regulated in the minimum age convention no. 138 and recommendation no. 146 and more specifically on the convention on the worst forms of child labour no. 182. the recent ilo convention on domestic workers no. 189 also contains references to a minimum age for children in domestic labour. the ilo declaration on fundamental principles and rights at work, adopted in 1998, declared that the effective abolition of child labour is a principle to which all members of the ilo, even if they have not ratified the conventions in question, have the obligation to respect, promote and realise. in all these international legal instruments establish a regime that the committee of regions, a renewed eu strategy 2011-14 for corporate social responsibility, com(2011) 681 final, 25 november 2011. business, human rights and children: the developing international agenda 112 distinguishes tolerable child labour from exploitative child labour, namely: labour performed under the minimum age established for specific types of work, which is likely to impede a child‟s education and full development, hazardous work and the worst forms of labour. 23 whilst the prohibition of child labour in international law does not form part of customary law yet, it can be argued that is a norm of ius cogens. 24 the aforementioned instruments establish a clear framework of state obligations. they encompass the adoption of the necessary measures legislative, administrative, social and educational. among the legal norms are included: minimum age legislation establishing criminal sanctions for noncompliance, preventative measures, labour inspections of private parties, removal of children from the worst forms of child labour, adequate educational measures and recovery, rehabilitation and integration of exploited children, as well as cooperation at the international level to further attain the eradication of child labour. 25 states not only have a negative obligation to refrain from exploiting children but also a positive one to protect them from violations committed by third parties and to fulfil related obligations such as to provide free basic education, recovery, rehabilitation and social integration measures. the use of child labour is also the area on which businesses themselves have focused more prominently in their self-regulation attempts. the undertaking not to use child labour is one of the central, and nearly exclusive, corporate social responsibility commitments of business with regards to children. 26 privatisation of public services another aspect of business and human rights with regards to children which has received specific attention has been the impact of privatisation of public services. the consideration of the best interests of the child by private welfare institutions is already foreseen in the crc (art. 3), but the increased privatisation of public services since the 1990s posed specific risks to which the committee on the rights of the child (hereafter the committee) has devoted particular attention since 2002. on 20 september 2002 the 23 f humbert, the challenge of child labour in international law (cambridge, university press 2009) 120. 24 ibid. 25 ibid. 26 o martin-ortega and r m m wallace, „the interactions between international law and corporate codes of conduct: a study of women and children in the textile industry‟ in s tully (ed) the research handbook on corporate legal responsibility (cheltenham, edward edgar 2005) 302-315. the denning law journal 113 committee held a day of general discussion 27 on the theme of “the private sector as service provider and its role in implementing child rights.” 28 among the main conclusions of the committee are that states parties to the crc have the primary responsibility for compliance with its provisions with regards to all persons within its jurisdiction. the legal obligation to respect and ensure the rights of children as stipulated in the convention includes their obligation to ensure that non-state service providers operate in accordance with the provisions of the convention, and the state continues to be bound by its obligations under the treaty, even when the provision of services is delegated to non-state actors. 29 the committee unequivocally states that the crc creates indirect obligations on private service providers. 30 the committee specifically calls on them to respect the principles and provisions of the crc, taking into account the four general principles set out in the provisions concerning non-discrimination (art. 2), the best interest of the child (art. 3), the right to life, survival and development (art. 6), and the right of the child to express his or her views freely (art. 12), when conceptualising, implementing and evaluating their programmes, including when subcontracting to other nonstate service providers. 31 it further recommends developing self-regulation instruments and compliance mechanisms in accordance with the principles of 27 un committee on the rights of the child, report on the thirty-first session, crc/c/121, 11 december 2002, paras 629-659.the committee has organised days of general discussion since 1992. their purpose is to discuss a specialised topic of importance for the implementation of the crc, as well as providing an opportunity for the committee to engage in dialogue with representatives of state parties, ngos and other un agencies. as j doek explains, in choosing the theme the committee often follows the proposals made by ngos. recommendations are issued at the end of the discussion, which are approved by the committee. they are meant to guide state parties, ngos, un agencies and others with the implementation of the crc, as well as serve as basis for the production of general comments. they could have important consequences. for example, the appointment of the un special representative of the secretary general on children in armed conflict followed a crc committee day of general discussion on the matter, which also contributed to the elaboration of the optional protocol to the crc on children in armed conflict. see, j e doek, „the crc: dynamics and directions of monitoring its implementation‟ in a invernizzi and j williams, the human rights of children. from visions to implementation (farmham ashgate, 2011) 104-105; see as well w vandenhole, the procedures before the un human rights treaty bodies. divergence or convergence? (antwerp, intersentia 2004) 189-190. 28 un committee on the rights of the child, ibid: private sector encompasses business, non-governmental organisations and other profit-making and non-profit making private associations. 29 ibid, recommendations, legal obligations, para 653.1. 30 ibid. 31 ibid, recommendations to non-state service providers, para 653.16. business, human rights and children: the developing international agenda 114 the crc. 32 this approach was later reinforced in the committee‟s general comment 5 on general measures of implementation of the convention on the rights of the child. 33 general business and international human rights instruments the initiatives specifically concerned with business and human rights have paid little particular attention to children‟s rights. most of them include it in the general context of labour rights, as in the un norms 34 and the un global compact. the latter only mentions children with regards to the principle on the effective abolition of child labour (global compact, principle 5). the un guiding principles are silent on any references to children‟s rights in its main text and there are only two references in the commentary. these references include children in a wider category of vulnerable individuals, with women, national and ethnic minorities, religious and linguistic minorities, indigenous people, persons with disabilities and migrant workers and their families, when considering general state regulatory and policy functions (commentary to principle 3) and when listing the international legal instruments relevant to the responsibility of business (commentary to principle 12). this is certainly a limited range of references, and it is particularly unsatisfactory from a children‟s rights perspective that their needs are considered in the context of such a diverse group. the inclusion of children among other groups is problematic because children occupy a different position in society from that of other socially disadvantaged groups. 35 commentators have argued against considering children as members of a wider category of vulnerable people. in this regard, nolan has highlighted that the inaccurate conceptualisation of children as vulnerable, dependent and passive results in the lack of recognition of, and therefore capacity to exercise, their agency. this gives rise to a vicious circle, in which “false perceptions of children are reinforced by, and give rise to, the limited opportunities available to children to demonstrate their competence and agency.” 36 it must of course 32 ibid, para 653.17 33 un committee on the rights of the child, general comment 5 on general measures of implementation of the convention on the rights of the child (arts 4, 42 and 44, para 6), crc/gc/2003/5, 27 november 2003, paras 42-44. 34 the un norms only had two mentions: an exception to the principle of nondiscrimination when the protection of children‟s rights required greater protection (art. 2) and, in the context of rights of workers, the prohibition of economic exploitation of children from transnational corporations and other business enterprises (art. 6), (n 6). 35 nolan, (n 3) 10. 36 ibid, p 11. as the author sustains, child dependency cannot be ended merely by social or political change: children are inevitably dependent, as they are always the denning law journal 115 be noted that children are not a homogenous group. given that childhood is accepted under international law to encompass individuals from birth to the age of 18 years old 37 they obviously represent a large and diverse group. equally, children in different socio-economic and political contexts face different challenges and needs, and accordingly the impact of business activities will differ. as mentioned corporate self-regulatory regimes also refer to children, mostly with regards to child labour. codes of conduct and corporate social responsibility schemes normally include provisions regarding the protection of children, concentrating on the commitment to fight child labour as part of their voluntary commitments and seldom refer to internationally recognised normative standards. 38 some of the most developed industry sector practices in this regard are found in the textile sector, sports merchandise and footwear. however it does not necessarily follow that the advances on paper have translated to great improvements in practice. 4. towards comprehensive approaches for business and states two important recent developments have heralded a more comprehensive approach in the efforts to tackle the negative impact of business activities on children‟s rights, pointing to joint responsibilities of states and business for the protection and promotion of children‟s rights. these instruments, analysed below, are addressed to business and to states respectively. they too highlight how new considerations towards the impact of business in children‟s lives are increasingly based on children as rights bearers, with agency and voice, rather than exclusively as objects of protection. 5. unicef, global compact and save the children children’s rights and business principles in 2012 unicef, the un global compact and save the children called on businesses to step up their efforts to respect and support children‟s rights in the community, the marketplace and workplace. in furtherance of this, they published a set of ten principles designed to ensure that companies respect and support children‟s rights: the children‟s rights and business principles members to a vulnerable group due to the fact that their vulnerability cannot be fully remedied by empowerment measures, 10-11. 37 article 1 of the united nations convention on the rights of the child 1 defines a child as meaning every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier. 38 for a thorough study see martin-ortega and wallace, (n 26). business, human rights and children: the developing international agenda 116 (hereinafter, crb principles). 39 these principles have been endorsed by the secretary-general of the united nations ban ki-moon. 40 the principles are intended to serve as a guide to all businesses in their interactions with children, and as such they are not binding. they identify a comprehensive range of actions that all businesses should take to both prevent and address adverse impacts connected with their activities and relationships, and to maximize positive business impacts on children‟s lives. 41 this way the crb principles aspire to be a key reference point for existing and future voluntary and other initiatives on business and children, and as a basis for the promotion of multi-stakeholder collaboration. 42 the crb principles‟ drafting process started in 2010 and together with the three leading organisations, other human and children‟s rights organisations have participated in the process. during 2011 these organisations convened meetings and engaged in online consultation with over 600 business leaders, civil society and government representatives as well as experts and children. 43 children participated through a child participation strategy, intended to ensure that they were respected as equal stakeholders in the initiative and at the same time build their capacity to engage with business and understand businesses‟ responsibilities to respect and support their rights. during the summer of 2011, consultations with over 400 children, aged 7-17, were held in nine countries. 44 the results of these consultations were published by unicef, the global compact and save the children in a report entitled „how business affects us‟. 45 this widely participatory process is fully in line with the crc‟s provisions on children‟s participation and the right to have their voices heard during the development 39 crb principles, (n 1). 40 secretary-general ban ki-moon: children's rights and business principles, 11 march 2012: http://www.youtube.com/watch?v=cuoyj--d3eg&feature=youtu.be 41 global compact, a call to business to respect and support children’s rights, press release, 12 march 2012: http://unglobalcompact.org/news/197-03-12-2012 42 ibid. 43 global compact, development of the children’s rights and business principles: http://www.unglobalcompact.org/issues/human_rights/childrens_principles/developm ent.html 44 the countries were: brazil, argentina, philippines, zambia, bangladesh, ethiopia, senegal, paraguay and peru, the children were asked to share their perspective about how business affects their lives, families and communities and review a set of draft principles. global compact, ibid. 45 unicef, global compact and save the children, how business affect us. children and young people share their perspectives on how business impacts their lives and communities, june-august 2011: http://resourcecentre.savethechildren.se/library/how-business-affects-us-childrenand-young-people-share-their-perspectives-how-business the denning law journal 117 of policies affecting them. it further provides important legitimacy to the crb principles. the principles are drafted using rights-based language, recognising children as the bearers of rights rather than the recipients of corporate kindness. this represents an advance with regards to previous experiences of corporate social responsibility instruments. in this regard, the crb principles make reference to how they are derived from recognised human rights standards including the crc and its optional protocols and the relevant ilo conventions. however, and in line with ruggie‟s guiding principles on business and human rights, they are clear in asserting that “they do not create new international obligations.” 46 in this regard they are firmly rooted in ruggie‟s tripartite framework and rely on the general business responsibility to respect human rights as defined by the framework and the guiding principles. the crb principles reinforce the distinction between obligations and responsibilities for states and businesses respectively and do not move beyond ruggie‟s premise that businesses are solely legally bound by national law. 47 they even go further in the distinction of the roles and scope of responsibilities by adding yet another level of engagement: commitment, as distinct from responsibility. in this regard they assert that businesses have a corporate responsibility to respect and corporate commitment to support children‟s rights. the crb principles are thus based on recognition of corporate responsibility as the minimum that is required of business and defined as: “avoiding any infringement of the human rights of others, including children, and addressing adverse human impact with which the business is involved. the corporate responsibility to respect applies to business‟s own activities and its business relationships, linked to its operations, products and services.” whilst the corporate commitment to support is strongly encouraged, even if not required, and it is defined as: “voluntary actions that seek to advance human rights, including children‟s rights, through core business activities, strategic social 46 crb principles, preamble, at 12. 47 the preamble explicitly states: „governments at all level have the duty to respect and fulfill children‟s rights. however, all societal actors, including business, must comply with applicable national law and respect international standards on children‟s rights‟. crb principles, at 13. business, human rights and children: the developing international agenda 118 investment and philanthropy, advocacy and public policy engagement, and working in partnership and other collective action.” 48 each principle is drafted according to this distinction, specifying what is considered as part of the responsibility to respect and suggestions as to how businesses can extend their support for children‟s rights if they voluntarily choose to do so. conforming to ruggie‟s model the crb principles are addressed to all businesses, regardless of their size, sector, location, ownership and structure. they also apply to business relationships, that is, “those relationships a business has with business partners, entities in its value chain, and any other state or non-state (government or non-governmental) entity directly linked to its business operations, products or services”. 49 this definition mirrors that of the un guiding principles, 50 but it then goes further to “include indirect relationships in an enterprise‟s value chain, beyond the first tier, as well as a majority and minority shareholding positions in joint ventures”. 51 the crb principles cover a wide range of key issues – from child labour to marketing and advertising practices to the role of business in aiding children affected by emergencies, the impact of land acquisition and security arrangements. the crb principles are generally gender-sensitive, recognising that girls and boys may face different risks in relation to business activities. crb principle 1 lays down the general responsibility for business with regards to children‟s rights. it reads: “all business should meet their responsibility to respect children‟s rights and commit to supporting the human rights of children”. this responsibility mirrors the general one established in the un guiding principles, therefore demanding a public policy commitment to human rights, the development of due diligence processes to identify and address human rights impacts and the participation in remediation processes when their activities give rise to adverse consequences on human rights. the value of the crb principles is its concentration on children‟s rights, something which was absent in the un guiding principles. of particular importance is the definition of human rights due diligence as needing to be child sensitive. crb principle 1 specifically requires businesses to identify and assess actual or potential adverse impact on children‟s rights through processes which involve meaningful consultation with children; it demands the use of appropriate qualitative and quantitative indicators and the resource to feedback from internal and external sources, including affected children and their families; and requires businesses to communicate externally their 48 crb principles, introduction, at 5. 49 crb principles, glossary, at 6. 50 un guiding principles, (n 10), commentary to principle 13. 51 crb principles, glossary, at 6. the denning law journal 119 efforts to address their impact on children in a way that it is accessible to the intended audience. crb principle 1 also advances the definition of remediation processes specifically intended to address children‟s rights impact by establishing that these processes should be child-sensitive, accessible to girls and boys, their families and those who represent their interests. crb principles 2-4 mainly deal with labour related rights. they establish that all business should: 2) contribute to the elimination of child labour, including in all business activities and business relationships; 3) provide decent work for young workers, parents and caregivers; 4) ensure the protection and safety of children in all business activities and facilities. crb principle 4 explicitly suggests that business should develop a child protection code of conduct for business operations, as part of the corporate commitment component of the principle. it is rather surprising that this reference to a child specific code only appears in this one place. crb principles 5 and 6 deal with children as consumers of products and services and establish that all business should: 5) ensure that products and services are safe and seek to support children‟s rights through them; 6) use marketing and advertising that respect and support children‟s rights. the following crb principles are particularly innovative and respond to the comprehensive approach to the risks faced by children and their needs. crb principle 7 states that all businesses should respect and support children‟s rights in relation to the environment and to land acquisition and use. this is particularly important because until now children have been largely neglected when considering the impact large investment projects requiring land acquisition have had on them, as well as how their health, livelihood and future development may be affected by the environmental consequences of commercial operations. 52 crb principle 7 includes, with regards to the corporate responsibility to respect: “a) respecting children‟s rights in relationship to the environment, when planning and implementing environmental and resource use strategies, ensuring that business operations do not affect children‟s right through damaging the environment or reducing access to natural resources and ensuring that the rights of children, their families and communities are addressed in contingency plans and remediation for environmental and health damage derived from their operations and; 52 according to the world health organisation each year around three million children under the age of five die due to environment-related diseases, see who, global plan of action for children's health and the environment (2010-2015), http://www.who.int/ceh/cehplanaction10_15.pdf (undated). business, human rights and children: the developing international agenda 120 b) respecting children‟s rights as an integral part of human rights considerations when acquiring or using land, which includes avoiding or minimising displacement of communities, engaging in meaningful consultation, including seeking prior and informed consent of indigenous peoples and in particular respecting children‟s rights, specially their right to education, protection, health, adequate food and adequate standard of living and participation when resettlement is carried out, as well as when providing for compensation.” notably, there is no reference made to child-sensitive consultation processes in this particular provision. crb principle 8 refers to the responsibility to respect and support children‟s rights in security arrangements, which is a particularly important issue, especially when businesses operate in highly volatile contexts or conflict situations, which per se pose increased risks to children. crb principle 9 calls on all businesses to help protect children affected by emergencies, suggesting that as part of their commitment to support children‟s rights they make a positive contribution to sustainable peace and development. finally crb principle 10 states that all businesses should reinforce community and government efforts to protect and fulfil children‟s rights. the main responsibility in this regard is not to undermine government efforts to protect and fulfil children‟s rights, recognising that respect for the rule of law and use of responsible business practices, including the payment of taxes, are essential for governments to meet their obligation to protect and fulfil children‟s rights. as a voluntary instrument the crb principles only constitute international aspirations for the business community to assume human rights responsibilities. the principles therefore suffer from the same problem as other voluntary initiatives with regards to how to guarantee compliance, lack of sanctions for non-compliance and lack of mechanisms for reparation and redress. however, they are a very important step because they provide a comprehensive framework of issues that businesses should look out for and raise consciousness and direct future practice, which may have an important practical impact if it translates into the transformation of business practices. 6. united nations committee on the rights of the child, general comment 16 in 2013 the un committee on the rights of the child adopted and published general comment 16 on state obligations regarding the impact of the denning law journal 121 the business sector on children‟s rights. 53 the general comment has emerged from the context of the committee‟s previous discussions relating to children and the private sector and the simultaneous development of a more robust framework dealing with business and human rights generally, as mentioned above. general comments of course are not legally binding and have received a mixed reception from states. however general comments are recognised as indicators as to how the relevant treaty body believes certain provisions of the convention it oversees should be interpreted. 54 in particular, the committee on the rights of the child also relies on its general comments when evaluating the compliance of state parties to their obligations under the convention and it tends to refer systematically to them when delivering concluding observations on state parties‟ progress. 55 many general comments elaborate on the interpretation of a specific article contained in a convention; however general comment 16 is more unusual in that it seeks to explore business activities vis-à-vis the convention as a whole and to clarify the scope of state obligations with regards to this sector. this is an ambitious task given the holistic approach of the crc, which contains a wide range of rights and covers various specific circumstances, e.g. migrant children, disabled children and those otherwise marginalised. the committee on the rights of the child is also the first un treaty body to examine the relationship between business and human rights in a dedicated comment. general comment 16 provides states with a framework for implementing the crc as a whole in relation to the business sector, while focussing on specific contexts where the impact of business activities on children‟s rights can be most significant. in doing so it acknowledges the importance of several instruments directly related to business and human rights, including ruggie‟s framework, and specifically mentions the crb principles, analysed above. 56 the committee adopts the same approach as ruggie in maintaining that it is primarily the state‟s obligation to protect children‟s rights and that states have a duty to ensure that business activities comply with the required human rights standards. in this regard, it clarifies that a state will be in breach of its obligations under the crc and its optional protocols when it fails to respect, protect and fulfil children‟s rights in relation to business activities and operations that impact on them. 57 states‟ obligations to respect, protect and fulfil children‟s rights in the context of business activities include providing 53 un committee on the rights of the child, (n 2). 54 see generally, p alston and j crawford (eds) the future of un human rights treaty monitoring (cambridge university press, 2000). 55 j e doek, (n 27) 105. 56 un committee on the rights of the child, (n 2) para 7. 57 ibid, para 25. business, human rights and children: the developing international agenda 122 effective remedies and reparations in case of violations by business. 58 children‟s rights are mainstreamed in the business sector as per general comment 16 as it clearly declares that “all business-related policy, legislation or administrative acts and decision-making should be transparent, informed and include full and continuous consideration of the impact on the rights of the child.” 59 the general comment calls on states to facilitate the development of an environment in which children‟s rights are respected. the committee considers that the obligations assumed by states under the crc are obligations of result and of conduct. therefore, as it has maintained previously states are not relieved of their obligations under the crc and its protocols if their functions are delegated or outsourced to a private business (or to a non-profit organisation for that matter). however, the comment also foresees a direct role for business: “duties and responsibilities to respect the rights of children extend in practice beyond the state and state-controlled services and institutions and apply to private sector actors and business enterprises. therefore all business must meet their responsibilities regarding children‟s rights and states must ensure that they do so.” 60 the comment then adds that part of this responsibility of business is not to undermine the state‟s ability to meet its obligations towards children. the due diligence standard is identified as a means for measuring compliance. what that means of course, is that a state will be held responsible if it fails to take the appropriate steps to prevent, investigate, adjudicate and redress any alleged violations of children‟s rights. 61 however, the committee also relies on due diligence as the standard to facilitate businesses‟ own responsibilities towards children‟s rights. in particular due diligence allows businesses to identify, prevent and mitigate their impact on children's rights including across their business relationships and within global operations. 62 this represents a clear nexus with the un guiding principles. however, in contrast to the crb principles, the committee does not define what should be understood as child rights due diligence and whether it differs from general human rights due diligence processes. in this regard, the lack of references to specific child inclusive processes and explicit requirements for child participation in consultation and remediation processes is a missed opportunity. it is, again, the state‟s responsibility to facilitate the processes of 58 ibid, paras 30-31. 59 ibid, para 26. 60 ibid, para 8. 61 ibid, para 28. 62 ibid. para 62. the denning law journal 123 corporate child rights due diligence, and to provide the adequate environment for it. in fact, the onus is on states to lead by example with regard to state owned enterprises and to publicly communicate their impact on children‟s rights. where there is a high risk of business enterprises being involved in violations of children‟s rights because of the nature of their operations or their operating contexts, states should require a stricter process of due diligence and an effective monitoring system. general comment 16 does not consider right by right what the impact of business activities may be on children‟s rights and how far the obligations of states and responsibilities of business reach. it rather focuses on the four cardinal principles of the convention, namely, the right to non-discrimination (art 2), the best interests of the child (art 3(1)); life, survival and development (art 6); and the right to be heard (art 12) with which all business activities must conform to ensure a child‟s rights approach is applied holistically. it provides illustrative examples of how business activities may impact upon the lives of children with regards to each principle. pursuant to the right to nondiscrimination, the committee understands that article 2 demands states ensure that all legislation, policies and programmes dealing with business issues are not discriminatory towards children either intentionally or unintentionally, both in content and implementation. the general comment places an obligation on states to prevent discrimination in the private sphere, as well as to provide remedies for when discrimination has occurred. part of states‟ obligations is to provide a supportive environment for businesses so they can respect the right to protection from discrimination. 63 in respect of the best interests of the child, as per article 3(1), the comment states unequivocally that states are obliged to integrate and to apply this principle in all legislative, administrative and judicial proceedings concerning business activities and operations that directly or indirectly impact on children. 64 the best interests of the child now requires to be read in conjunction with general comment 14, which was published by the committee in may 2013. 65 the obligation on the state is not merely to ensure the best interests of the child have been taken into consideration, but it must also be able to explain how the principle has been weighed in relation to other considerations. 66 this becomes all the more important when states are called upon to weigh competing priorities, such as short term economic concerns over longer term development issues. specific norms and policies which 63 ibid, paras 13-14. 64 ibid, para 15. 65 un committee on the rights of the child, general comment 14 on the right of the child to have his or her best interests taken as a primary consideration (art 3, para 1), crc/c/gc/14, 29 may 2013. 66 ibid, para. 12. business, human rights and children: the developing international agenda 124 states should consider in this regard are those related to employment, taxation, corruption, privatisation, transport and other general economic, trade or financial issues. 67 general comment 16 (para 18) recalls article 6 and general comment 5, 68 relating to the child‟s right to life, survival and development. this is a “holistic concept, embracing the child‟s physical, mental, spiritual, moral, psychological and social development.” 69 the way in which business enterprises can impact on the realisation of article 6 is illustrated by reference to, for example, environmental degradation and contamination and how these may occur as a result of business activity and in turn may compromise children‟s rights to health, food security and access to safe drinking water and sanitation. a wide range of business activities and policies can have an impact on children‟s rights to life, survival and development, as is illustrated by the examples given in the commentary. among them, and in clear connection with the crb principles, are those related to decent work for parents and carers (principle 3), the marketing of products which may be harmful for children (principle 6) and the access to land and natural resources (principle 7). the right of the child to be heard (article 12) again has to be looked at in the context of general comment 12 70 and the relevant articles contained within the convention on the rights of persons with disabilities. as anticipated article 12 is considered core and general comment 16 emphasises the need for businesses to consult with children in situations where the enterprises‟ activities may impact upon children‟s rights, or indeed have had an impact. the obligation to ensure that children are listened to falls on states, whose responsibility it is to provide the necessary environment and frameworks to ensure children are consulted. voluntary participation of children in judicial procedures, conciliation and arbitration mechanisms is now required by general comment 12. the committee also provides a non-exhaustive set of specific circumstances in which “the impact of business enterprises can be significant and where states‟ legal and institutional frameworks are often insufficient, ineffective or under pressure”, 71 and in which therefore business activities and operations are most likely to impact on children‟s rights. this way the 67 un committee on the rights of the child, (n 2) para 15. 68 un committee on the rights of the child, (n 33). 69 see official records of the general assembly, fifty-ninth session, supplement no. 41 (a/59/41), annex xi, para 12. 70 un committee on the rights of the child, general comment 12 the right of the child to be heard, crc/c/gc/12, 20 july 2009. 71 un committee on the rights of the child, (n 2) para32. the denning law journal 125 comment elaborates further on the private provision of services for the enjoyment of children‟s rights; the impact on children of the informal economy; children‟s rights and global business operations; the role of states as part of international organisations; and finally the relationship between business and children in the context of emergencies and conflict situations. this final point was also addressed by the crb principles. the committee recognises that one of the most critical factors influencing the impact of business activities on children‟s rights is the lack of implementation or poor enforcement of laws regulating businesses. 72 section vi is therefore devoted to establishing a framework for implementation which foresees the development by states of measures of various kinds: legislative, regulatory and enforcement, remedial, policy, coordination and monitoring, collaborative and awareness-raising. some have been mentioned already, such as the assistance to businesses to develop their own due diligence processes to assess, prevent, mitigate and remediate harm to children‟s rights. another one is to strengthen regulatory agencies which have responsibility for the overseeing of standards, such as health and safety, education, labour and advertising and marketing. these have to be strengthened so they have sufficient power and resources to monitor and investigate complaints, and to provide and enforce remedies for the abuse of children‟s rights. interesting measures suggested in the implementation section include the definition of child rights impact assessments 73 and the specific role for national human rights institutions in raising awareness of the crc‟s provisions amongst business enterprises. 74 states also have to disseminate laws relating to children‟s rights and business, including disseminating to business enterprises. the training of judges and other administrative officials including lawyers and legal aid providers is also recommended. this is to ensure the correct application of the crc and its protocols on business and children‟s rights. states have to provide for an effective remedy through judicial or non-judicial mechanisms and ensure effective access to justice. children frequently do not have full legal standing in some judicial systems or their access is highly restricted for legal or practical reasons. the committee envisages as part of states‟ obligations that they should focus their attention on removing social, economic and juridical barriers so that children can in practice have access to effective judicial mechanisms without discrimination of any kind. 75 throughout the general comment there is an emphasis on facilitating children‟s access to effective remedies, especially those children who may face additional barriers in respect to, for example, 72 ibid, para 61. 73 ibid, paras 78-81. 74 ibid, para 83. 75 ibid, para 68. business, human rights and children: the developing international agenda 126 language or disability. it is not just a child friendly, but a child respecting approach, for which the general comment calls, and the need to create the appropriate environment for that to flourish. there is, with respect to the crc, the potential of the optional protocol on a communication procedure. this would allow for individuals or their representatives to initiate a complaints procedure against an agreeing state party. however at the time of writing this has not been ratified by the necessary state parties 76 and the option for this mechanism to be an effective instrument to deal with business related children‟s rights abuse is still very far away. 7. conclusion the instruments analysed in this article are part of an important trend: the development of a comprehensive response to the risks children‟s rights face from business activities. until recently international focus has been somewhat ad hoc and sector-specific. this has been evidenced by the concentration on the regulation of child labour and economic exploitation of children and the consequences of the privatisation of public services on their rights. the international legal instruments regulating these spheres placed the responsibility in the fulfilment of the rights of the child exclusively on states. however, both the crb principles and general comment 16 acknowledge a responsibility of business vis-à-vis children‟s rights beyond that of the state. even in the case of the general comment, which is fundamentally addressed to states, it contains clear direct references to what is expected of business within this ambit. whilst only states have direct obligations with regards to children‟s rights, increased recognition of business responsibilities in instruments such as the ones analysed here, contribute to, and may continue to contribute to, the creation of fertile ground for increased demands on business. this may lead to indirect obligations in international law and the development of direct obligations in national systems. the crb principles and general comment 16 are also important because they are based on the conception of children as rights bearers. this goes beyond the traditional perception, in the context of business activities, that children are mainly objects of protection from economic exploitation and abuse as members of the labour force or recipients of welfare services. children have rights also in relation to business, and they should be included in every step of the way to guarantee that economic activities do not harm them. importantly both instruments widen the protection of children to include areas which had previously not received attention, such as the needs of children as consumers of products, services and marketing strategies; their 76 currently only six of the ten required state parties have ratified the optional protocol. the denning law journal 127 rights in the context of large economic projects which affect their environment and their communities; and the specific challenges and risks to which they are exposed to in situations of armed conflict and emergencies. therefore, although the documents discussed above are not legally binding they do represent the development of a more comprehensive strategy rather than the piecemeal approach which has, until recently, been characteristic of the field of children‟s rights and business. there is a substantive body of international instruments on the issue of children‟s rights as well as an increased number of international initiatives regarding business and human rights. cross-reference has to be made and cognisance given to the ramifications each has for the others. equally, businesses themselves are contributing by acknowledging their own role in the fulfilment of children‟s rights. however a plethora of instruments and public declarations of good will in itself will not promote and protect the rights of children: it is important that these are realised in practice and that the appropriate checks and balances, informed by robust monitoring, be implemented. the current progress is encouraging but for effective promotion and protection of children‟s rights, states have to take the necessary steps in their domestic legal systems and businesses have to discharge their responsibilities diligently, taking into account all those likely to be affected by their activities. however whether this can be realised while the framework around children‟s rights and business is of a voluntary nature remains to be seen. the denning law journal 69 denning law journal 2007 vol 19 pp 69-84 beckford and beyond. some developments in the doctrine of abuse of process. judge richard bray∗ in recent years one of the largest growth areas of law in the criminal trial jurisdiction has been the development of the doctrine of abuse of process. as recently as the 1970s, submissions based on abuse of process were virtually unknown in the criminal courts. now there is no competent defence advocate who does not come to court well armed with a quiver full of authorities ready to shoot down a prosecution as the opportunity arises. the underlying principle behind the doctrine of abuse of process is the concept that the court has a duty in criminal cases, to hold the balance between the interests of the state in maintaining order and the rights of individuals, and in exercising that duty the court retains a residual power to stay prosecutions which are vexatious or oppressive. the leading cases almost always re-iterate the principle that such a power should very rarely be exercised.1 despite such dicta there has been an inexorable rise in the number of cases in which the courts have intervened on the basis of abuse of process, and distinct categories of abuse cases have developed. the reasons behind this development may be disputed and could indeed form the basis of a separate dissertation. some cynics may say that it coincides with the emergence of the cps as the prosecuting authority. they would argue that with the advent of bureaucracy have come all the incidental failings that are associated with it: loss of individual responsibility, the blind following of guidelines rather than the individual exercise of judgment, delays, lack of liaison between police and prosecution leading to failures of disclosure and loss of evidence. others would argue that in the fight against ever more sophisticated crime the police have responded with increasingly intrusive methods of surveillance and detection, which threaten individual liberty. in any event, the categories into which most abuse of process applications are generally divided may be said to speak for themselves: misuse of the process of court, misconduct by the prosecution or police, failures in the disclosure of evidence, delay in the trial process. ∗ his honour judge bray sits on the midland circuit. 1 see for example dicta of lord salmon in dpp v humphreys [1977] 1 hl p 46 c-f and dicta of lord lane in att gen ref no 1 of 1990 (1992) 95 cr app r p302. beckford and beyond 70 the aim of this article is to revisit the underlying principles which the courts apply in considering these applications, to review some of the developments in the doctrine that have evolved in recent cases and to reemphasise the importance of judicial discretion in this field. the doctrine of abuse of process is based on common law and judicial precedent. the oft-quoted test is 1) whether the defendant can have a fair trial and/or 2) whether the defendant can fairly be tried r v beckford.2 during submissions reliance is sometimes placed on article 6 of the human rights act and section 78 of pace.3 but in practice these add nothing to common law principles because they are both based on the same concept of fairness. under article 6 a defendant is entitled to a “fair and public hearing within a reasonable time”. under section 78 a court may refuse to admit evidence “if it appears to the court having regard to all the circumstances, including the circumstances in which the evidence was obtained, that the admission of the evidence would have an adverse effect on the fairness of proceedings”. both provisions are drafted in the widest terms, thus leaving it to the judge to decide what is fair and just in the individual circumstances of each case. it follows that the doctrine has been able to develop piecemeal from case to case to meet pressures and circumstances as they arise, hence the ever widening field of use. the categories are never closed. before turning to recent developments and to some of the important issues that arise it is useful, perhaps, to set out the brief background. the starting point can be said to be connolly v dpp.4 it was the custom in those days, where the charge was murder, for the prosecution not to include any other count on the indictment. in that case the defendant had been acquitted, on appeal, of murder and manslaughter where a victim had been killed in a robbery. the prosecution subsequently pursued a charge of robbery on a second indictment. the defendant appealed his conviction inter alia upon the ground that the second trial, upon essentially the same facts, should have been stayed as an abuse of process. the court of appeal dismissed the appeal upon the ground that it had not been open to the jury on the first indictment to convict the defendant of robbery. lord devlin, in his judgment, reviewed the case of downes5 in which lord goddard had set out the four grounds on which an indictment could be 2 [1996] 1 cr app r 94. 3 for example r v khan [1997] ac 558 (improper police conduct), r v looseley [2002] 1 cr app r 29 (entrapment), att gen ref no 2 of 2001 [2004] 2 wlr 1 hl (delay), sofris v s [2004] crim l r 846 (loss of evidence). 4 [1996] 1 cr app r 94. 5 [1954] 37 cr app r 148. the denning law journal 71 quashed or stayed namely (1) where it is held defective in substance or form (2) where a plea in bar is resolved in favour of the defendant (3) where a nolle prosequi is entered by the prosecution and (4) where the indictment discloses an offence which the court has no jurisdiction to try. lord devlin added a fifth ground namely where the criminal proceedings constitute an abuse of the court’s process. in the judgments of the house of lords it was accepted that the court had a general and inherent power to protect its process from abuse. this case was considered by the house of lords in dpp v humphreys6 where lord salmon said: ‘it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. fortunately such prosecutions are hardly ever brought but the power of the court to prevent them is, in my view, of great constitutional importance and should be jealously preserved’. that last sentence, spoken in 1977, shows how rarely the doctrine of abuse was invoked some thirty years ago. it has now blossomed into a number of distinct categories, all governed by the principles set out in beckford’s case. within the scope of this article it is only possible to highlight some of the developments in the major categories. all, however, are concerned with the need to strike the balance between the right of the individual to a fair trial and the interest of the state in seeing that wrongdoers are convicted. as the cases cited below will show, it is possible to disagree with some of the judgments made but it must surely remain a fundamental principle that this balance must be struck by the courts and an independent judiciary. this is particularly important because, as the cases considered below will show, the majority of abuse of process applications are concerned with abuse of the criminal process by government bodies. it is the duty of the courts, applying the rule of law, to control the misuse of power by the executive. as lord denning used to put it “be you ever so high, the law is always above you”. it is a sad reflection of the times and of interference by government that this principle has been questioned and needs to be reasserted. 1. misuse of the process of court two main strands can be identified in this category. firstly, where the prosecution seek to try a defendant twice upon the same essential facts, and secondly, where they seek to resile from a promise or representation that the defendant would not be prosecuted. under the first heading the principle is that no one should be punished twice for an offence arising out of the same or substantially the same set of 6 [1977] ac hl. beckford and beyond 72 facts. thus in r v moxon –tritsch7 a private prosecution for causing death by reckless driving was stayed after a defendant had been convicted of careless driving and excess alcohol offences. in r v beedie8 a prosecution for manslaughter arising out of a defective gas installation was stayed where the defendant had already pleaded guilty to summary offences arising out of the same incident. in r v horsham jj ex p reeves9 it was held that it would be vexatious and oppressive to permit the prosecution to pursue charges which were essentially the same as those on which the justices had found no case to answer in committal proceedings. a typical example of this type of case arose in r v mcfee.10 the police were chasing a car suspected of being involved in a robbery. the car was stolen and being driven dangerously in the chase. when the police caught up with it, various occupants decamped and ran away leaving the defendant in the driving seat. he was arrested and later that day he appeared in the magistrates’ court. the cps accepted a plea to the lesser offence of being carried in a stolen vehicle. during the chase the car had been caught on a speed camera. the police recovered the film from the camera and the defendant was identified by an officer as being the driver shown on the film. the film was in the hands of the police at the time of the magistrates’ court case but had not been developed. after the defendant had been sentenced for the lesser alternative offence the cps later sought to prosecute him for dangerous driving and driving whilst disqualified, claiming that fresh evidence was now available. the prosecution was stayed on the ground that it was based on the same set of facts. the prosecution had accepted the defendant’s plea on the basis that he was a passenger in the car, they had not sought an adjournment to analyse the further evidence and they were therefore bound by their earlier decision. to have allowed the prosecution to proceed, after an earlier prosecution had concluded, would have opened the door to further prosecutions whenever fresh evidence emerged. in the recent case of r v l11 the long-standing issue of whether a criminal court is bound by a previous decision on the same facts in a civil court has at last been resolved. the appellant was convicted of the manslaughter of his 3 month old baby. in previous care proceedings the judge had concluded that it was not possible to determine which of the two parents had caused the injuries. it was submitted that in the light of the ruling in the care proceedings 7 [1988] crim l r 46. 8 [1997] 2cr app r 167. 9 75 cr app r 236. 10 northampton crown court aug 31st 2006 unreported. 11 [2006] ewca crim 1902. the denning law journal 73 the prosecution should have been stayed. the appeal was dismissed. it was held that the civil court had no jurisdiction finally to exonerate or condemn the appellant or to pass sentence on him and was not therefore ‘competent’ for that purpose. under the second heading there is a clutch of cases relating to the revival of prosecutions after promises or representations that the defendant would not be prosecuted. for example in r v croydon justices ex parte dean12 a defendant had been arrested as part of a murder investigation. he had not taken part in the killing but had assisted in destroying the victim’s car. in interview he gave vital information to the police about the killing. the police decided to treat him as a prosecution witness and gave him a promise that he would not be prosecuted. the cps later sought to prosecute him for the destruction of evidence. the divisional court held that the prosecution by the cps of a defendant who has been given a promise of immunity by the police, albeit informally, is capable of being an abuse of process. in the particular circumstances of this case, where the defendant had clearly given assistance to the police in response to the promise, the prosecution should be stayed. however, after some uncertainty as to whether such promises provided an ultimate bar to further prosecution the issue appeared to be resolved in r v horseferry road magistrates’ court ex parte dpp.13 the divisional court quashed a stay for abuse of process holding that the breach of an assurance not to prosecute cannot per se justify a stay. the court must consider whether the defendant has suffered such prejudice from the pursuit of proceedings, e.g. by delay, as to justify a stay. thus, in r v pepperman,14 a doctor was charged with indecently assaulting two separate patients. after investigating the first alleged assault the police had informed the defendant’s solicitors that he would not be prosecuted. six years later, following a second complaint by a different patient, the cps decided to prosecute both alleged offences. the judge dismissed the application to stay the count in relation to the first offence holding that the promise could not ipso facto justify the stay and that in the circumstances the defendant had not suffered such prejudice as a result of delay that he could not have a fair trial. the recent house of lords decision in jones v whalley15 has not, it must be said, helped to clarify the position. in that case the appellant had been cautioned for assault on the respondent. he had signed a written form of caution which contained the words: ‘this means that you will not have to go before a criminal court in connection with this matter but that a record will be 12 (1994) 98 cr app r 76. 13 [1999] cod 441. 14 northampton crown court dec 4th 2006 unreported. 15 [2006] ukhl 41. beckford and beyond 74 kept of this warning’. the respondent subsequently brought a private prosecution. the justices stayed the prosecution for abuse of process. the divisional court reversed the decision. the house of lords allowed the appeal. they cited with approval the judgment of the divisional court in r v croydon justices and found that the particular terms of the caution amounted to a representation that he would not be prosecuted. the house of lords had been asked to rule on the wider issue whether, when a person is cautioned or told that he will not be prosecuted, that must always be a bar to a subsequent prosecution. although they expressed sympathy for this view, certainly in the case of subsequent private prosecutions, they declined to give a ruling without further argument before them. although citing r v croydon justices it appears that the house of lords was not referred to and did not consider, the judgment in r v horseferry road magistrates’ court. it must now be uncertain to what extent that case remains good law. 2. entrapment and police misconduct faced with the growing sophistication of criminals, particularly in the field of drugs, the police have resorted to intrusive and unconventional methods of crime detection and investigation including the use of bugging techniques and undercover police officers. the boundary between acceptable and unacceptable police behaviour has become increasingly blurred and abuse of process applications have been used to test the reaction of the courts.16 there is a distinction to be made between ‘entrapment’ cases where the abuse argument is based on the submission that the police have provoked the 16 examples are: nottingham city council v amin [2000] 1 cr app r 426 (police officers, posing as fares, hail an unlicensed taxi), christou v wright (1992) 95 cr app r 264 (undercover police officers set up a jewellery shop in london, posing as shady jewellers ready to buy stolen goods), r v smurthwaite (1994) 98 cr app r 437 (undercover police officer poses as contract killer to a man who wanted to kill his wife), r v gill [1989] cr l r 358 (undercover police officers pose as ira members willing to carry out a shooting for money), r v williams (1994) 98 cr app r 209 (police leave unattended van in busy high street full of ‘cigarette cartons’), r v khan [1997] ac 558 (police leave a bugging device in a private house), r v bailey [2001] ewca 733 (undercover police officers trick their way into a house posing as purchasers of stolen goods), r v grant [2005] ewca 1089 (police fix bugging devices in a police station to record private interviews between defendants and their solicitors), r v marshall and others, leicester crown court nov 2005 unreported, (police officer acts as lorry driver importing heroin for drugs gang). the denning law journal 75 defendant into committing an offence which he would not otherwise have committed, and cases of improper conduct where the police have used improper methods to obtain evidence relating to an offence which was not prompted by the police. in the “entrapment” cases it is said that a stay will normally be the appropriate remedy. in improper conduct cases an application should normally be made for the exclusion of evidence under section 78. in some cases, as we shall see, this distinction has become blurred. (1) entrapment the leading case is still r v looseley:17 the only proper purpose of police participation is to obtain evidence of criminal acts which they suspect someone is about to commit or in which he is already engaged. it is not to tempt people to commit crimes in order to expose their bad characters and punish them (per lord hoffman). the judgment followed dicta of bingham lj in nottingham city council v amin18 in which he held that where the police had done no more than present the defendant with an unexceptional opportunity to commit crime they were not to be regarded as having instigated or incited an offence. dicta in these cases have been used to justify test purchases by undercover police officers, nowadays the standard method of catching drugs offenders on housing estates. under cover of such authorities the police have adopted increasingly bold tactics. a classic example is the recent case of r v harmes and crane19 where undercover police officers supplied soft drinks to a pub landlord suspected of drug smuggling. the officers asked to be paid in cocaine. this encouraged the defendants to set up a conspiracy importing drugs by plane into heathrow, involving the officers. despite the fact that there were numerous breaches of the police codes of practice under ripa and the fact that it was the officers who first brought up the question of cocaine, the court of appeal upheld the judge’s ruling that the defendants had not been induced to commit crime but had taken advantage of the opportunity to participate in drugs smuggling for their own individual gain. 17 att gen ref (no 3 of 2000) [2002]1 cr app r 29. 18 [2000] 1 cr app r 426. 19 [2006] ewca crim 928. beckford and beyond 76 a case on the other side of the coin is r v moon.20 the appellant, a heroin addict, had been persuaded by an undercover woman police officer to supply her with a small amount of heroin. the court of appeal held that the prosecution should have been stayed for abuse of process. this case might seem to give some encouragement to a challenge to the validity of test purchase operations. it is best seen as a decision on its own facts. the court found, on the admission of the prosecution at trial, that the defendant was a drug user rather than a supplier and had been pressed into supply by a sob story told by the undercover police officer. it can be said therefore that the court was not seeking to disagree with the dicta in amin but merely to suggest that where a mere drug user was caught in the net of a police undercover operation the appropriate charge was possession rather than supply. (2) improper conduct in these cases a balance has to be struck between the public interest in “ensuring that those charged with grave crimes should be tried and the competing interest in not conveying the impression that the end justifies the means”.21 many of the cases involve bugging by police officers of premises occupied or frequented by defendants, often in breach of police codes of practice. in abuse of process applications reliance is often placed on article 8 of the human rights act and the consequential breach of the right to fair trial under article 6. article 8 provides that: (1) everyone has the right to respect of his private and family life, his home and his correspondence. (2) there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety……for the prevention of disorder or crime. a leading case is r v khan.22 a bugging device had been fixed to the outside of a private house without the knowledge of the occupiers. the house of lords held that the bugging involved a breach of article 8 of the human rights act but that the evidence thereby obtained was fairly admitted within the provisions of section 78 of pace. lord nolan’s judgment was trenchant: 20 [2004] ewca crim 2872. 21 r v latif and shahzad [1996] 2 cr app r 92. 22 [1997] ac 558. the denning law journal 77 “‘if the behaviour of the police in the particular case amounts to an apparent or probable breach of some relevant law or convention, common sense dictates that this is a consideration which may be taken into account for what it is worth. its significance, however, will normally be determined not so much by its apparent unlawfulness or irregularity as upon its effect, taken as a whole, upon the fairness or unfairness of proceedings. the fact that the behaviour of the police constitutes a breach of the convention or of a foreign law can plainly be of no greater significance per se than if it constituted a breach of english law.’ and he went on that he had reached his conclusion in the case: ‘not only firmly as a matter of law but also with relief. it would be a strange reflection on our law if a man who has admitted his participation in the alleged importation of a large quantity of heroin should have his conviction set aside on the grounds that his privacy has been invaded.’” this case was followed by the court of appeal in r v bailey.23 undercover police officers had tricked their way into a house by posing as purchasers of stolen goods. they had with them recording equipment and recorded admissions by the defendants of drug dealing and offers to sell drugs. the court of appeal (per judge lj) held that there had been no breach of article 8 since the recording equipment had not been fixed or left within the home and that the evidence could fairly be admitted since it was the best possible evidence of what had actually been said. the ruling in khan was endorsed by the european court of human rights holding that the admission of evidence obtained in breach of article 8 did not necessarily render the proceedings unfair. it was for the domestic courts, in accordance with their rules of evidence to decide what evidence it was fair to admit. the court therefore endorsed the exercise of the judge’s discretion to decide what was fair in each individual case. these two cases represent a high-water mark of judicial approval for the use of invasive techniques on the part of the police. effectively, the courts were prepared to admit the evidence, even though somewhat dubiously obtained, upon the basis it was highly probative of guilt, and therefore just to admit it. 23 [2001] ewca 733. beckford and beyond 78 however, the case of r v grant24 may represent some turning back of the tide. this was one of three cases involving lincoln police officers who had placed bugging devices in the exercise yard of a police station thus allowing communications between defendants and their solicitors to be captured. in two cases the prosecution had been stayed as an abuse of process, but in the third astill j had refused the application. the court of appeal allowed the appeal against conviction, finding that the prosecution should have been stayed even though nothing was recovered from the illicit intercepts of any value to the prosecution and nothing so recovered was used as, or led towards, any evidence to be called by the crown. much of the leading judgment of laws lj was taken up with a critical assessment of astill j’s finding of fact that the bugging had not been a deliberate violation of the right to professional privilege. it was taken as axiomatic that deliberate misconduct of this kind was sufficient to require a stay. laws lj said: ‘we are in no doubt that in general unlawful acts of the kind done in this case, amounting to a deliberate violation of a person’s right to legal professional privilege, are so great an affront to the integrity of the justice system, and therefore the rule of law, that the associated prosecution is rendered abusive and ought not to be countenanced by the court’. he went on: “it is unnecessary to multiply authority to demonstrate the importance which the law attaches to professional privilege ……’ ‘where the court is faced with illegal conduct by police or state prosecutors which is so grave as to threaten or undermine the rule of law itself, the court may readily conclude that it will not tolerate, far less endorse, such a state of affairs and so hold that its duty is to stop the case.” in support of this proposition he quoted the case of r v horseferry rd magistrates court ex p. bennett.25 in that case a defendant had been brought to this country to stand trial as a result of the collaboration of authorities here and abroad in disregard of extradition procedures. it was held that the prosecution should be stayed regardless of the merits of the case. bennett’s case can surely be distinguished from grant on the basis that the trial proceedings were vitiated ab initio by the illegality of the extradition, whereas in grant the arrest and charging of the defendant were legal. it was merely that improper attempts had been made to acquire further evidence against him. it may be that the decision in grant can be justified upon the basis that there are some cases of misconduct which are so extreme that to 24 [2005] ewca 1089. 25 [1994] 1 ac 42. the denning law journal 79 proceed would be an affront to the administration of justice. but it may also be suggested that the decision in this case fits uneasily with the principles set out by the house of lords in khan and the balancing exercise in latif. grant was a serious case of murder involving an allegation of contract killing, which needed in the interests of justice to be tried. if there had been any evidence against the defendant obtained by the illegal bugging it could have been excluded under s.78, which is the normal remedy in such cases. in grant there was no evidence obtained by the bugging and therefore no prejudice suffered by the defendant so as to render his trial unfair. the trial should therefore have been allowed to proceed leaving the police officers to be disciplined or even prosecuted at a later stage as deemed appropriate. grant’s case may also be seen to be inconsistent with the approach of the court of appeal in r v hestonfrancois26 which was cited with approval by lord lane in att gen ref no 1 of 1990.27 in that case the police searched under warrant the defendant’s home for stolen jewellery. they removed files of documents and tapes prepared for his defence to charges of burglary. the officer showed the documents to prosecution witnesses. the judge refused to stay the indictment. on appeal watkins lj said: “‘the facts of the present case demonstrated the importance of, among other things, discovering during the trial whether the alleged misconduct by the police had any effect upon the evidence and any likely bearing on the result. it had none’. later on he said: ‘however reprehensible conduct of this kind may be, it is not, at least in circumstances such as the present, an abuse or, in another word, a misuse of the court’s process. it is conduct which in these circumstances falls to be dealt with in the trial itself by judicial control upon admissibility of evidence…applying that test to the facts in grant, the prosecution of the defendant was surely not ‘a misuse of the court’s process’. the trial judge could fairly control proceedings by exercising his discretion to exclude evidence where appropriate.” although there may be argument in individual cases as to where the courts should draw the line in striking the balance between the need to prosecute grave crimes and the need to restrain oppressive and improper behaviour by prosecuting authorities, there can surely be no argument that this duty must lie 26 (1984) 78 cr app r 209. 27 (1992) 95 cr app r 296. beckford and beyond 80 with the courts since the courts can be the only effective restraining influence on the executive. this “balance” is continually under tension, as exemplified by the uneasy relationship between the courts and the home office in recent years as a result of what may be seen as constant legislative interference by successive governments in the criminal justice system. a small but significant example of this is the proposed government legislation to curtail the powers of the court of appeal so that it will no longer be able to quash convictions “on purely procedural grounds” in cases where it is sure that the defendant is factually guilty. this proposal is in practice an attempt to prevent the courts from exercising their residual power to restrain prosecutions which are an abuse of the court’s process, a power which lord salmon in dpp v humphreys declared to be “of great constitutional importance and should be jealousy preserved.” the proposal has come under scathing attack from professor spencer in his recent article: “quashing convictions, and squashing the court of appeal”.28 he points out that under such provisions the decision in r v horseferry rd magistrates ex parte bennett could no longer be maintained. he argues that the fact that two views are possible about some of the cases in which the higher courts felt it necessary to quash the conviction of an obviously guilty person is no good reason for abolishing their power to do so altogether. he goes on to say that: “decisions of this sort are best made as they are now: by our senior judges, after argument, on a case by case basis. there is no reason to tie their hands with yet more prescriptive legislation, passed with an eye to reversing particular decisions that happen to have attracted the eye of the tabloid newspapers.”29 delay applications in this category have become increasingly common because of the increase in the numbers of prosecutions for sexual offences which arise out of allegations of historic abuse and which the cps are prepared to prosecute in apparent disregard of the 50% chance of success guideline. the standard test was set out by lane lcj in att gen ref no 1 of 1990.30 two questions had been posed in the reference: (1) whether proceedings on 28 [2006] vol 170 jp 790. 29 [2006] vol 170 jp 793. 30 (1992) 95 cr app r 296. the denning law journal 81 indictment may be stayed on the ground of prejudice arising from delay in the institution of those proceedings even though that delay has not been occasioned by any fault on the part of the prosecution and (2) what is the degree of likelihood and the seriousness of any prejudice which is required to justify a stay of such proceedings. lord lane noted with some unease that the earlier rule which required that delay should be unjustifiable seemed to have been relaxed in recent cases. he therefore felt constrained to agree ‘to a limited extent’ that mere delay without fault which gave rise to prejudice could amount to an abuse. however he went on to say: “stays imposed on the grounds of delay or for any other reason should only be employed in exceptional circumstances.” on the second question he said: “no stay should be imposed unless the defendant shows on a balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held.” lord lane went on to express the hope that “this judgment will result in a significant reduction in the number of applications to stay proceedings on the ground of delay.” that hope remains unfulfilled. the flood of applications since has shown no sign of decreasing. indeed recent decisions of the court of appeal have thrown into doubt such fundamental issues as the appropriate method of procedure in abuse applications, the test to be applied in considering an appeal against conviction, and even the prejudice test set out by lord lane in att gen ref no 1 of 1990. in r v b31 there had been a 30 year delay in making a complaint of sexual abuse. the court of appeal, presided over by lord woolf cj, found that the judge had been right to refuse the application to stay, made at the start of the trial. moreover, they found that no criticism could be made of the conduct of the trial or of the judge’s summing up or his direction to the jury on the subject of delay. nevertheless they allowed the appeal on the basis that the court of appeal had a residual discretion to set aside a conviction if it was felt to be unsafe or unfair. the basis for the exercise of the discretion appears at paragraph 28 of the judgment: “it has to be recognised because of the delay that occurred, in our judgment the appellant was put in an impossible position to defend himself. he was not able to conduct any proper cross-examination of the complainant. there was no material he could put to the complainant to suggest that she had said something had happened on one occasion which could be established to be incorrect. all that the appellant could do 31 [2003] ewca crim 319. beckford and beyond 82 was to say that he had not committed the acts alleged against him.” not surprisingly the decision in this case was relied upon in subsequent appeals based on substantial delay in the making of a complaint. in r v e32 the court of appeal was able to distinguish r v b upon the basis that in the later case there was some supporting evidence for the claimant’s allegations and material which the complainant could be crossexamined upon. in his judgment hooper lj felt constrained to make two criticisms of the judgment of lord woolf in r v b. first he pointed out what he described as a “degree of tension” between lord woolf’s assertion that the trial judge had been right to refuse a stay and right to allow the case to go to the jury for a verdict after the evidence and the court of appeal’s own decision that the evidence was unsafe. as lord hooper pointed out “it is questionable that the judge was right to conclude at the close of the evidence that it would not have been unsafe for the jury to convict the defendant if it had been impossible for the defendant to defend himself.” secondly, lord hooper criticised the concept of ‘residual discretion’ as a ground for quashing a conviction. as he crisply put it: “we remind ourselves that if the court concludes that the conviction is unsafe, it must be set aside. we approach this appeal in that way.” during the course of his judgment in r v b lord woolf expressed the view that the trial judge should not entertain applications to stay made on the basis of delay until the end of the evidence.33 he repeated this view in r v smolenski34 where he again found that the conviction was unsafe even though the judge had been right to leave the case to the jury. he stated that applications to stay for abuse of process should be discouraged in cases of this type where it was sometimes very difficult for children to speak out and where it could take many years before matters came to light. where evidence was given after many years had passed by, trial judges should exercise very careful scrutiny at the end of the evidence to determine whether cases were safe to be left to juries. if this is intended to be a direction to trial judges to hear applications to stay only after the evidence has been heard, it is open to obvious objections. firstly, the judge would have to determine the issue whether the defendant could have a fair trial at a time when the trial itself had substantially already taken place, with all the attendant strain upon the witnesses in this sort of 32 [2004] ewca crim 1441. 33 see para 19. 34 [2004] ewca 1270. the denning law journal 83 case. secondly, the judge would have to make his decision at a time when there would be obvious pressure on him to allow the case to continue. finally, lord lane’s test as to the burden and standard of proof in establishing abuse has come under scrutiny. in r v ew35 clarke lj said: it appears to us that ultimately the question for the judge on any application for a stay in a case of this kind is essentially whether in all the circumstances of the case a fair trial is possible notwithstanding the delay. we think there is force in the point that once the issue has been raised it must be for the crown to satisfy the court that a fair trial is still possible. nevertheless it must be for the defendant to raise the issue and to identify those respects in which he says that a fair trial is not possible. this judgment was quoted with approval by rose lj in r v pauls36 where he said at para 20: “in our judgment the discretionary decision whether or not to grant a stay as an abuse of process because of delay, is an exercise of judicial assessment dependent on judgment rather than any conclusion as to fact based on evidence. it is therefore potentially misleading to apply to the exercise of that discretion the language of burden and standard of proof, which is more apt to an evidence based fact finding process. accordingly we doubt whether today, in the light of intervening authorities in relation to the exercise of judicial discretion, lord lane would have expressed himself as he did with regard to the burden and standard of proof.” lord rose went on to stress that his remarks, and those of clarke lj, represented no departure from the general approach of lord lane and he reiterated that a stay should only be granted in exceptional circumstances. however, it can be argued that the judgments in r v pauls and r v ew certainly represent a change of emphasis, encouraging a trial judge to exercise his discretion in deciding whether a defendant can have a fair trial rather than leaving the burden on the defendant to prove a negative, albeit on a balance of probabilities. 35 [2004] ewca 2901. 36 [2006] ewca crim 756. beckford and beyond 84 as can be seen from this article, cases on abuse of process show no sign of abating and the doctrine will continue to develop. there are two recurrent themes in this development, both of which have been traced in this article. the first is that this area of law, so vital in striking a balance between the need to bring criminals to justice and the right to fair trial, is essentially judge-made law. the judges are exercising their inherent powers to stay prosecutions which are vexatious or oppressive. such inherent power is a vital part of our unwritten constitution and needs to be jealously guarded. the second is that in deciding whether or not to stay proceedings, the emphasis for trial judges is upon the exercise of judicial discretion in deciding what is fair and just in the instant case. lord denning would surely have approved of these two propositions. microsoft word 23 5 pearce v2.doc 92 the denning law journal 2011 vol 23 pp 92-130 privacy, superinjunctions and anonymity “selling my story will sort my life out” robert pearce1 1 introduction 1.1 the adakini ntuli story in march 2010 adakini ntuli sent howard donald a text message in which she said: “why shud i continue 2 suffer financially 4 the sake of loyalty when selling my story will sort my life out?” we do not know what her story was because mr donald, a member of the pop band take that, obtained a superinjunction forbidding both publication of her story and disclosure of the existence of the injunction. the court of appeal later allowed the parties to be named, but not the details of their relationship.2 the first known superinjunction, the trafigura injunction, was not concerned with privacy, but prohibited disclosure of a legally privileged internal company report concerning alleged dumping of toxic waste.3 injunctions preventing disclosure of confidential information have been available for almost two centuries.4 their use to protect privacy is a controversial twenty-first century phenomenon which severely constrains the 1 bcl, ma, hon lld, frsa; professor in law, the university of buckingham; visiting professor, the university of gloucestershire; emeritus professor, university of wales trinity saint david. the author is grateful to professor john mee of university college cork for helpful comments on a draft of this article. responsibility for all faults remains with the author. 2 ntuli v donald [2010] ewca civ 1276, [2011] 1 wlr 294. 3 the case is discussed in the neuberger report (see n 7) paras 6.1 to 6.4. there is no publicly available judgment. 4 since prince albert v strange (1849) 1 mac & g 25. a recent example is imerman v tchenguiz [2011] 1 all er 555. the denning law journal 93 freedom of the press to publish “kiss and tell” and more serious stories. it has been speculated that the number of superinjunctions could exceed 200,5 although the absence of reliable statistics makes this hard to verify, and this figure may be an exaggeration or the result of differences in categorisation.6 the neuberger report (report of the committee on super-injunctions: super-injunctions, anonymised injunctions and open justice)7 divides injunctions concealing the identity of the claimant into two groups: anonymised injunctions, where only the identity of one or more of the parties is concealed, and superinjunctions which also order that the existence of the injunction itself be kept secret.8 press comment often groups both kinds of injunction together. the neuberger report definitions suggest that all anonymised injunctions and superinjunctions are interim orders granted pending full trial although it acknowledges that it is possible for a permanent injunction to be granted securing indefinite secrecy or anonymity9 and to be enforceable contra mundum.10 permanent anonymity orders are said in the neuberger report to be rare,11 but if the facts assumed at the interim stage are proved, and the balancing of competing rights requires it, there is no juridical reason why permanent protection should be refused.12 5 see privacy and freedom of expression: a delicate balance, lecture by lord neuberger at eton, april 28th 2010. 6 the neuberger report (see n 7) para 4.4. the report recommended better data collection and a one year pilot scheme was introduced from august 1st 2011. the guardian has produced a list of known superinjunctions: butterworth and wolferobinson, guardian online august 5th 2011. savage, the daily star online, may 15th 2011 has a longer list. 7 report of the committee on super-injunctions: super-injunctions, anonymised injunctions and open justice, may 2011 (the “neuberger report”). this is the report of a committee convened by lord neuberger, master of the rolls, to consider mainly procedural issues concerning the grant of superinjunctions and similar orders. 8 there is also a category of injunction known as a “hyperinjunction” which additionally contains a prohibition on discussing issues with third parties: neuberger report paras 6.9-6.22. 9 neuberger report para 2.37. 10 opq v bjm [2011] ewhc 1059. 11 neuberger report para 2.35. 12 see for instance venables & thompson v news group newspapers ltd [2001] ewhc qb 32; [2001] fam 430 (see also venables v news group papers ltd [2010] ewhc b18); rst v uvw [2009] ewhc 2448, [2010] emlr 13 (cited in the neuberger report para 2.35 as an instance where the absence of a return date, thus creating a potentially permanent injunction, was justified). privacy, superinjunctions and anonymity 94 1.2 open justice it is a longstanding principle of english law13 that justice should be seen to be done, and that in consequence judicial hearings should take place in public.14 open justice may have had its origins in trials being held in the royal courts, which were open places, but it is now justified by policy considerations, including “winning ... public confidence and respect,”15 exposing judges to scrutiny,16 and safeguarding against miscarriages of justice, such as false claims.17 as jeremy bentham said, “publicity is the very soul of justice. it is the keenest spirit to exertion and the surest of all guards against improbity. it keeps the judge, while trying, under trial.”18 some exceptions to open justice are the result of specific legislation, such as the general rule in the court of protection that proceedings are conducted in private and judgments are not made public.19 in addition the courts have a general authority under the civil procedure rules20 to grant anonymity where it is considered necessary.21 in late 2009, counsel remarked to the supreme court, “"your first term docket reads like alphabet soup,"22 and lord rodger, acknowledged “how deeply ingrained has the habit of anonymisation become”.23 the growth of exceptions to open justice has fuelled media 13 dating back to time immemorial: see neuberger open justice unbound, the judicial studies board annual lecture, march 16th 2011. 14 spigelman, the principle of open justice: a comparative perspective (address by the hon jj spigelman ac, media law resource centre conference, september 20th 2005). 15 scott v scott [1913] ac 417 at 473 per lord shaw. 16 scott v scott [1913] ac 417 (lord diplock). 17 jxf v york hospitals nhs foundation trust [2010] ewhc 2800. 18 bowling (ed) works of jeremy bentham (1843) vol 4 at 316-317, cited in spigelman, n 14 above. 19 in exceptional cases, the hearing may be held in public and/or the judgment may be made public. see a v independent news & media ltd [2010] ewca civ 343; hillingdon v neary [2011] ewhc 413 (cop); w v m & ors [2011] ewhc 1197 (cop) 20 civil procedure rules 39.2. the neuberger report has recommended that these rules should be reviewed. 21 the principles which govern the grant of anonymity in the reporting of a hearing (except where governed by specific statutory provisions) are the same or substantially the same as those which apply to the grant of superinjunctions and anonymised injunctions: w v m [2011] ewhc 1197 (c). 22 re guardian news and media ltd [2010] uksc 1 at [1]. see brennan what’s in a name? [2010] denning lj 197-207. 23 ibid. the denning law journal 95 concerns.24 anonymised injunctions offend against the principle of open justice, and need special justification. 2 respect for privacy 2.1 protection of privacy at common law one of the principal reasons for the upsurge in anonymity rulings is the incorporation into english law of the european convention on human rights (the echr) by the human rights act 1998 (the hra). before this there was no direct protection for privacy. the law of defamation offered protection only against falsehoods. when gordon kaye (the star of the bbc comedy series ’allo ’allo!) was recovering from brain surgery following a serious accident, a journalist and photographer gained access to his private hospital room, took photographs, and claimed to have interviewed him. the court of appeal stated simply: “in english law there is no right to privacy, and accordingly there is no right of action for breach of a person's privacy.”25 privacy could sometimes be protected indirectly through the action for breach of confidence, as when the duke of argyll was prevented from publishing information about his third wife’s private conduct in the celebrated case of argyll v argyll.26 publishing the information, acquired by him during the course of the marriage, would have breached the confidential relationship between married couples. all this changed with the implementation of the hra. most provisions of the the echr impose obligations on the state which are not directly enforceable against private citizens. article 8 of the convention, which states that “everyone has the right to respect for his private and family life, his home and his correspondence” is different. the european court of human rights (the european court) has held that it imposes a positive obligation on the state, through the legislature and the courts, to respect, and therefore to promote, the interests of private and family life. as buxton lj said in mckennitt v ash, “that means that a citizen can complain against the state 24 see, for instance telegraph online may 8th 2011: chef wins gagging order to suppress tribunal details where it was reported that despite opposition from two newspaper groups, no reasons were given for ordering anonymity for a celebrity chef: j v k ltd, central london employment tribunal may 4th 2011 25 kaye v robertson (1991) fsr 62 at 66. an interlocutory injunction to restrain publication of the interview was granted on the ground that it was arguably a malicious falsehood to represent that the plaintiff had consented to it. 26 [1967] ch 302. privacy, superinjunctions and anonymity 96 about breaches of his private and family life committed by other individuals.”27 the european court has developed a substantial jurisprudence relating to privacy. the court has held that article 8’s protection is broad. it includes protection for individuals wishing to express their own sexual identity28, protection from surveillance and interception of communications29, the right to develop one’s own personality,30 and the right to create relationships with others31, even in a public context.32 2.2 protection of privacy now as a consequence of the hra, the jurisprudence of the european court has been “mainlined” into english law, creating an almost immediate impact upon the protection of privacy in domestic law. recent cases create what can most accurately be described as a general principle of privacy, although as recently as 2004, the house of lords maintained that there was no such high level principle,33 and that respect for privacy was essentially an extension of the tort of breach of confidence,34 which had in consequence been renamed as the “misuse of private information.”35 what the cases now very clearly establish is that where there is a “reasonable expectation of privacy”, article 8 of the echr is engaged and there is a prima facie case for protection.36 the reasonable expectation of privacy may arise from the way in which the information has been obtained, 37 27 [2006] ewca civ 1714 at [9]. 28 dudgeon v uk [1981] echr 5. 29 klass and others v germany [1978] echr 4; kennedy v uk [2010] echr 682. 30 botta v italy [1998] echr 12. 31 niemietz v germany [1992] echr 80; jehova’s witnesses of moscow v russia [2010] echr 887. 32 pg and jh v united kingdom, [2001] echr 550; peck v united kingdom, [2003] echr 44. 33 wainwright v home office [2004] 2 ac 406 at [28]-[35]. the case involved the strip search of visitors to a prisoner suspected of dealing in drugs. 34 douglas v hello! ltd (no3) [2006] qb 125 at [53]. 35 lord nicholls of birkenhead in campbell v mirror group newspapers ltd [2004] 2 ac 457 at [14] and [21]. for a description of how the law concerning the protection of confidence has developed, see paras [43]-[48] (lord hoffman). 36 campbell v mirror group newspapers ltd [2004] 2 ac 457, at [21] per lord nicholls of birkenhead, and murray v big pictures (uk) ltd [2008] ewca civ 446, at [24]. 37 douglas v hello! ltd (no 3) [2005] ewca civ 595; amm v hxw [2010] ewhc 2457. the denning law journal 97 for instance by illegal means38 such as intercepting e-mails or telephone communications,39 where a message has been received by mistake,40 or through a traditional breach of confidence.41 in some cases weight has been placed on the fact that photographs have been taken surreptitiously with a camera smuggled into a private event42 or with the use of a telephoto lens,43 or that a private conversation has been covertly recorded.44 deliberately targeting someone by “staking out” their home, or a place they are known to visit, may also be a relevant factor.45 some information, regardless of the way it is obtained, will be considered inherently private, and therefore entitled to protection. the boundaries of this concept have yet to be well clarified. in douglas v hello! ltd (no 3) lord phillips, delivering the judgment of the court of appeal asked: “what is the nature of 'private information?' it seems to us that it must include information that is personal to the person who possesses it and that he does not intend shall be imparted to the general public.”46 in theakston v mirror group newspapers ltd47 ouseley j declined to grant an injunction to prevent the sunday people disclosing that a television presenter had visited a brothel and engaged in sexual activities with three prostitutes. he considered that there could be no blanket rule guaranteeing a 38 hellewell v chief constable [1995] 1 wlr 804 at 807. 39 goldsmith & khan v bcd [2011] ewhc 674; inerman v tchenguiz [2011] 1 all er 555. 40 yyz v yvr [2011] ewhc 274. 41 mckennitt v ash [2006] ewca civ 1714 (information about a music star obtained by an aide). 42 douglas v hello! ltd (no 3) [2005] ewca civ 595; mosley v news group newspapers ltd [2008] ewhc 1777. 43 holden v express newspapers ltd, june 7th 2001, eady j (referred to by ouseley j in theakston v mirror group newspapers ltd. [2002] ewhc 137 at [41]); campbell v mirror group newspapers ltd [2004] 2 ac 457 at [123]; murray v big pictures (uk) ltd [2008] ewca civ 446 at [50]; von hannover v germany [2004] echr 294. 44 d v l [2003] ewca civ 1169 at [24] and [34]. 45 campbell v mirror group newspapers ltd [2004] 2 ac 457 at [123]; murray v big pictures (uk) ltd [2008] ewca civ 446; [2009] ch 481 at [50] and [57]. it is possible for different views to be held as to whether the element of harassment or stalking by paparazzi was an important ingredient in the decision in von hannover v germany [2004] echr 294: see murray at [43]ix; compare jih v news group newspapers ltd, [2010] ewhc 2818 at [59]. 46 [2006] qb 125 at [83]. 47 [2002] ewhc 137. privacy, superinjunctions and anonymity 98 presumption of privacy or confidentiality for sexual conduct. shortly afterwards, the court of appeal held that it was not appropriate to grant anonymity to a premier league footballer who, despite being married with two children, had engaged in casual sexual relationships with a lap dancer and another woman, but did not want his wife to discover this.48 this robust view appears to have been displaced by a more protective attitude. in mosley v news group newspapers ltd49 the news of the world published a report that the president of the fédération internationale de l'automobile (the governing body for formula 1 motor racing) had engaged in what it claimed was a “sick nazi orgy with 5 hookers”. the key issue was whether there was an expectation of privacy. eady j’s view was clear. he said that generalisations were best avoided: “nevertheless, one is usually on safe ground in concluding that anyone indulging in sexual activity is entitled to a degree of privacy – especially if it is on private property and between consenting adults (paid or unpaid).”50 it is hard to generalise about what other information which will be considered private. the location of the activity is not conclusive. in von hannover v germany51 the european court held that german magazines were wrong to publish paparazzi photographs showing princess caroline of monaco engaging in ordinary activities in public places. she was not carrying out public duties and no other justification for the publication of the photographs had been made. similar decisions have been made by english courts.52 much depends upon the impact that publication will have. lord hope in campbell v mirror group newspapers ltd suggested that where it is not obvious that information is private, “the broad test is whether disclosure of the information about the individual ("a") would give substantial offence to a, assuming that a was placed in similar circumstances and was a person of ordinary sensibilities.”53 a relatively tough approach to this question was suggested in ambrosiadou v coward.54 lord neuberger mr remarked: 48 a v b & c [2002] 1 flr 1021. 49 [2008] ewhc 1777. 50 [2008] ewhc 1777 at [98]. 51 [2004] echr 294. 52 campbell v mirror group newspapers ltd [2004] 2 ac 457 at [123]; murray v big pictures (uk) ltd [2008] ewca civ 446. 53 campbell v mirror group newspapers ltd [2004] ukhl 22 at [92]. 54 [2011] ewca civ 409. the denning law journal 99 “while respect for family and private life is of fundamental importance, it seems to me that the courts should, in the absence of special facts, generally expect people to adopt a reasonably robust and realistic approach to living in the 21st century.” 55 2.3 publicity destroys privacy? under the old law of confidence, when information enters the public domain, the courts will not protect it further by injunction.56 the same principle has been applied to privacy, 57 provided the information is generally available.58 in the mosley case,59 eady j declined to grant an injunction requiring the news of world to remove a covertly taken video from its website because: “the material is so widely accessible that an order in the terms sought would make very little practical difference. one may express this conclusion either by saying that mr mosley no longer has any reasonable expectation of privacy in respect of this now widely familiar material or that, even if he has, it has entered the public domain to the extent that there is, in practical terms, no longer anything which the law can protect. the dam has effectively burst.”60 conversely, it has been said that “in the context of personal information (as opposed to commercial secrets) it does not necessarily follow, from the fact that something has been published, that further coverage cannot itself infringe a claimant's privacy.”61 this could be especially true of photographs, 55 [2011] ewca civ 409 at [30]. 56 attorney-general v guardian newspapers (no 2) [1990] 1 ac 109 (the spycatcher case). see also attorney general v blake [2000] ukhl 45, [2001] 1 ac 268 (secrecy no longer applied following revelations by the spy and traitor george blake – state left to pursue remedies in damages or account of profits); british broadcasting corporation v harpercollins publishers ltd [2010] ewhc 2424 (identity of “the stig” no longer secret). 57 x & y v persons unknown [2006] ewhc 2783 at [38]. 58 etk v news group newspapers ltd [2011] ewca civ 439 at [11]; browne v associated newspapers ltd [2007] ewca civ 295 at [61]. 59 [2008] ewhc 687 (hearing on damages [2008] ewhc 1777). 60 [2008] ewhc 687 at [36]. see also to the same effect etk v news group newspapers ltd [2011] ewca civ 439 at [10]. 61 x & y v persons unknown [2006] ewhc 2783 at [64]; jih v news group newspapers ltd [2010] ewhc 2818 at [59]; tse v news group newspapers ltd [2011] ewhc 1308]. privacy, superinjunctions and anonymity 100 for instance images of “a film star ... photographed, with the aid of a telephoto lens, lying naked by her private swimming pool”.62 2.4 whose privacy? it is not only the claimant’s privacy that has to be considered. in re guardian news and media ltd, hm treasury v ahmed,63 the main case made in argument for affording anonymity to a number of individuals suspected of involvement in terrorism was the impact upon relatives. the impact on children may be particularly relevant.64 in etk v news group newspapers ltd,65 although an affair between two journalists was an open secret amongst colleagues, the court of appeal refused to allow it to be made more widely known partly because of the impact of publicity on the man’s children. similarly, in cc v ab,66 the effect that disclosure would have on the claimant’s wife, who was in a fragile mental state and was attempting to rebuild her marriage, was a reason for granting an injunction to prevent a cuckolded husband, in revenge, publishing the fact that his wife had had an affair with the claimant. even where the court has not been asked to take account of the rights of a party, it can act on its own initiative if that person’s article 8 rights are engaged. in cde v mirror group newspapers ltd,67 when granting an injunction to prevent revelations about a virtual sexual relationship involving a minor celebrity, eady j was influenced by the impact that the contemplated coverage would have on the family of one of the others involved. 3 the new methodology 3.1 a question of balance before the hra the debate about anonymity was conducted largely on the basis of the balance between the principles of open justice and of confidentiality. the balance is now principally between the rights to respect for privacy and family life under article 8, and to freedom of expression under article 10. the principle of open justice remains relevant even where 62 douglas v hello! ltd (no 3) [2006] qb 125 at [105]. 63 [2010] uksc 1. 64 see murray v big picture (uk) ltds [2008] ewca civ 446 (publication of photographs of son of jk rowling) and ivereigh v associated newspapers ltd [2008] ewhc 339 (anonymity agreed to protect family of witness in libel case). 65 [2011] ewca civ 439. 66 [2006] ewhc 3083. 67 [2010] ewhc 3308. the denning law journal 101 no claim is made under article 10. neither the principles of confidentiality or of open justice nor rights under articles 8 and 10 are absolute. there are, however, significant differences between the old and new approaches. before the hra the starting point was the principle of open justice, attenuated only where necessary in the interests of justice. the case for anonymity had to be compelling.68 the hra has resulted in what has been described as a “new methodology.”69 the starting point is now to determine whether article 8 is engaged, and if so, whether the presumption that privacy should be protected is displaced by other considerations including those set out in article 10. in re s (a child) (identification: restrictions on publication) lord steyn identified four propositions as emerging from campbell v mirror group newspapers ltd70 where both articles 8 and 10 are engaged: “first, neither article has as such precedence over the other. secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. thirdly, the justifications for interfering with or restricting each right must be taken into account. finally, the proportionality test must be applied to each. for convenience i will call this the ultimate balancing test.” 71 in amm v hxw tugendhat j has said of this test that, “having carried out the exercise prescribed by the supreme court in the two recent cases, the judge will either have a duty to make an anonymity order, or a duty not to make one... it is not a matter of the court's discretion.” 72 3.2 human rights act s12 the government incorporated special provisions in to the hra to address concerns about the potential impact on press freedom.73 section 12 applies when a court is considering injunctions which may restrict freedom of expression. the section states that no relief is to be granted in ex parte proceedings unless all practicable steps have been taken to notify the respondent, or there are compelling reasons why the respondent should not be 68 scott v scott [1913] ac 417. 69 by lord steyn in re s (a child) (identification: restrictions on publication) [2005] 1 ac 593 at [23]. 70 [2004] ac 457. 71 [2004] ukhl 47; [2005] 1 ac 593 at [17]. 72 [2010] ewhc 2457 at [34]-[35]. 73 see the neuberger report para 1.5. privacy, superinjunctions and anonymity 102 notified. it also requires the court to “have particular regard to the importance of the convention right to freedom of expression” and in this context to the public interest, the extent to which information is in or is about to enter the public domain, and the provisions of any relevant privacy code. the section also provides that an injunction against publication before trial should not be granted “unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.” in cream holdings ltd v banerjee74 the court of appeal had concluded “that the more obvious meaning of the words in s12(3) is ‘more likely than not to establish’ (rather than ‘has a real prospect of establishing’),”75 but nevertheless felt constrained to conclude that the test was the lower one given the impact that a higher test “would have on competing convention rights.”76 the house of lords reversed the decision. lord nicholls, in an opinion with which the other lords agreed, said: “the degree of likelihood of success at the trial needed to satisfy section 12(3) must depend on the circumstances. there can be no single, rigid standard governing all applications for interim restraint orders. rather, on its proper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied the applicant's prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case... the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably ('more likely than not') succeed at the trial.” 77 lord nicholls felt that this compromise was “convention-compliant”.78 whether it defends the principle of freedom of expression in the way parliament anticipated is another matter. the neuberger report notes that “there is reasonable and legitimate argument whether the courts have interpreted hra s12 as parliament intended.”79 74 [2005] 1 ac 253. 75 [2003] ch 650 at [58]. 76 [2003] ch 650 at [59]. 77 [2005] 1 ac 253 at [22]. 78 [2005] 1 ac 253 at [23]. 79 the neuberger report para 1.5. the denning law journal 103 3.3 press code of practice under the hra s12(4), a court is required to have particular regard to “any relevant privacy code”, when considering injunctions relating to (inter alia) journalistic material which might affect the convention right to freedom of expression. the relevant code is the press complaints commission code of practice. the guidance the code provides follows closely the terms of the echr and the developing english caselaw. in part because of this close alignment, there have been very few cases in which the code has added anything to the decision-making process. for instance, in a v b & c80 lord woolf, setting out guidelines for considering privacy cases, said that the code “is only one of a number of factors to be taken into account”.81 likewise, in campbell v mirror group newspapers ltd82 the code was referred to by baroness hale as confirming the restoration by the house of lords of the conclusion reached at first instance. this does not mean that the code is unimportant, for there may be cases where the code of practice contains requirements going beyond those required by law. for instance the european court considered in mosley v uk83 that it would be inappropriate to condemn the english legal system for the absence of a requirement to notify the individual concerned prior to publication of potentially private information, but that a pre-notification requirement subject to a public interest exception could sensibly be included in the code of practice. moreover, as brooke lj said in douglas v hello! ltd “a newspaper which flouts clause 3 of the code is likely in those circumstances to have its claim to an entitlement to freedom of expression trumped by article 10(2) considerations of privacy.”84 4 justifying disclosure 4.1 competing individual rights where articles 8 and 10 most evidently come into conflict is where two individuals involved in the same actions differ about making them public. in theakston v news group newspapers ltd85 ouseley j, considered that the right to freedom of expression of the prostitutes involved in a casual sexual encounter in a brothel outweighed the man’s claim to privacy. a v b & c86 80 a v b & c [2003] qb 195. 81 [2003] qb 195at [11](xiv). 82 [2004] ac 457 at [159]. 83 [2011] echr 774. 84 [2001] qb 967 at [94]. 85 [2002] ewhc 137. 86 [2003] qb 195. privacy, superinjunctions and anonymity 104 established that “the court will be less inclined to protect the rights of one party to a sexual relationship if the other party wishes to reveal what happened.”87 privacy seems to have ranked higher in more recent cases.88 4.2 public interest the justification that publication would be in the public interest is surprisingly rarely argued in opposing privacy orders.89 this may be because the argument has rarely been successful.90 there is a dichotomy between public interest arguments presented to court and those made in newspaper comments. sir fred goodwin, the erstwhile chief executive of the royal bank of scotland, obtained an injunction banning a report that at a critical time leading to the bank’s collapse he had an affair with a female senior colleague. the order initially prevented even his occupation being mentioned because it might have led to his identification. a significant element in the campaign to lift the injunction was that the public had a right to know of the alleged affair in view of the public takeover of the bank and the possibility that the affair might in some way have contributed to the bank’s problems. the argument does not appear to have been put to the court.91 the sorts of situation which might give rise to a public interest justification are disclosure of activities which are in “breach of the country's security,92 or in breach of law, including statutory duty, fraud, or otherwise destructive of the country or its people, including matters medically dangerous to the public.”93 disclosing a misuse of corporate power would be of legitimate public interest.94 in campbell v mirror group newspapers ltd95 the house of lords apparently agreed with the concession made by naomi campbell that disclosure of her drug addiction was justified because it 87 the proposition was accepted in those terms by eady j in cc v ab [2006] ewhc 3083 at [32]. 88 see the imogen thomas story below. 89 see tse v news group newspapers ltd [2011] ewhc 1308; butterworth and wolfe-robinson, guardian online august 5th 2011. 90 see the remark of tugendhat j in tse v news group newspapers ltd [2011] ewhc 1308 at [11]. 91 mnb v news group newspapers ltd [2011] ewhc 528 at [6] and [18]; goodwin v news group newspapers ltd [2011] ewhc 1309 at [9]. 92 the profumo scandal might be an example: see cc v ab [2006] ewhc 3083 at [37]. 93 beloff v pressdram [1973] rpc 765 at 783. 94 see browne v associated newspapers ltd [2007] ewca civ 295; [2008] 1 qb 103 at [52]; goodwin v news group newspapers ltd [2011] ewhc 1341 [14]. 95 [2004] 2 ac 457 at [36]. the denning law journal 105 corrected earlier, incorrect statements that she had made that she had no drug problem. exposing hypocrisy on the part of a politician whose personal life is at odds with public claims would probably be treated similarly.96 a key distinction, repeatedly made in the cases, is that what is of interest to the public is not necessarily of public interest. entertaining the public is not enough. as lady hale said in a libel case, jameel v wall street journal: “there must be a real public interest in communicating and receiving the information. this is, as we all know, very different from saying that it is information that interests the public – the most vapid tittletattle about the activities of footballers' wives and girlfriends interests large sections of the public but no-one could claim any real public interest in our being told all about it.” 97 in etk v news group newspapers ltd98 ward lj considered that the decisive factor in assessing public interest “is the contribution the published information will make to a debate of general interest.”99 it is hard to see how this advances an understanding of the public interest since debates of general interest frequently relate to “vapid tittle-tattle”. refusing to permit proposed revelations about a journalist’s extra-marital affair which led to the sacking of a colleague, he set out other criteria: “here there is no political edge to the publication. the organisation of the economic, social and political life of the country, so crucial to democracy, is not enhanced by publication. the intellectual, artistic or personal development of members of society is not stunted by ignorance of the sexual frolics of figures known to the public." 100 96 francome v mirror group newspapers ltd [1984] 1 wlr 892, at p 989 per sir john donaldson mr; the argument would probably not succeed with a footballer or a musician who had not made direct claims to a squeaky clean personal life: see tse v news group newspapers ltd [2011] ewhc 1308 at [11]; lee v news group newspapers ltd [2010] niqb 106 at [46]. 97 [2006] 2 ac 465 at [147]. the case has been cited as accurately stating the law in privacy cases: see n 152 below. 98 [2011] ewca civ 439. 99 see also re guardian news and media ltd [2010] uksc 1. this formulation of the test is derived from the judgment of the european court in von hannover v germany (2005) 40 ehrr 1. 100 [2011] ewca civ 439 at 10. privacy, superinjunctions and anonymity 106 4.3 wider public interest as was explained above,101 the principle of open justice is itself based upon the public interest. it has also been recognised that there is a public interest in having active news media, not just at the national level, but also in local publications. if newspapers are unable to print what interests the public, they will sell fewer copies, and this can jeopardise their viability.102 such general arguments about the public interest will not suffice in justifying disclosure of private information. considerations of wider public interest have, however, influenced the courts (albeit only in a limited way) in their policy of allowing anonymised information about injunctions to be made public, rather than naming the claimant without explaining the reasons for the injunction. lord neuberger in jih v news group newspapers ltd said that, when a restriction was required, the public interest was better served by the first of these two options.103 4.4 onus of proving public interest the person claiming a public interest justification bears the onus of proof.104 in the goodwin case tugendhat j did not accept that disclosure was justified by a possible breach of corporate governance rules at the royal bank of scotland since no evidence was provided of those rules other than a print out of the group “code of conduct on integrity matters”, and counsel admitted that direct enquiries had not been made of the parties involved or within the bank.105 5 proportionality 5.1 interference must be proportional the concept of proportionality has become a legal theme as significant in late 20th and early 21st century jurisprudence as the concept of reasonable forseeability was in the half century following donoghue v stevenson.106 it is a key component in the balancing exercise between articles 8 and 10. as lord neuberger said in his lecture on privacy and freedom of expression: 101 see §1.2 above. 102 a v b & c [2003] qb 195 at [11] (xii). 103 [2011] ewca civ 42 at [33]. see below §5.2. 104 hutcheson (formerly known as "kgm") v news group newspapers ltd [2011] ewca civ 808 at [31]. 105 goodwin v news group newspapers ltd [2011] ewhc 1309 at [17]-[19]. 106 [1932] ac 562, the denning law journal 107 “when considering the conflict between the two the court is required to do three things: first, it must intensely scrutinise the comparative importance of the specific rights claimed in the particular case; it must then consider the justifications set out for interfering with or restricting each right; and finally, the court must consider the proportionality of the proposed interference or restriction.” 107 since at least jih v news group newsapapers ltd108, in which guidelines were laid down by the court of appeal, the courts have enunciated the principle that “restrictions on reporting should always be kept to a minimum,”109 although press commentary disputes that this has happened in practice. 5.2 tailoring the remedy in most cases where disclosure of a sexual relationship has been permitted, the disclosure allowed has been confined to the fact of the relationship, with the omission of the salacious details (like the famous but probably untrue account of david mellor wearing his chelsea united kit for a sexual encounter110) that often characterised pre hra accounts.111 tugendhat j pointed out in gray v uvw that: “there is a range of measures open to the court to protect the article 8 rights of the parties. these include a variety of measures to prohibit or prevent disclosure of the information sought to be protected, and an order prohibiting disclosure of the identity of one or both parties. but each measure is cumulative. the fact that one such measure may be necessary is not a reason for concluding that they are all necessary. on the contrary, the measures as a whole must be no more than is necessary and proportionate, and if one measure is adopted, then that may mean that an additional measure is not necessary.”112 107 privacy and freedom of expression: a delicate balance, lecture by lord neuberger at eton, april 28th 2010. 108 jih v news group newspapers ltd [2011] ewca civ 42. 109 ibid at [29]. 110 a story which featured on the front page of the the sun in july 1992. 111 theakston v mirror group newspapers ltd [2002] ewhc 137 at [75]; john terry (previously referred to as lns) v persons unknown [2010] ewhc 119. 112 [2010] ewhc 2367 at [56]. privacy, superinjunctions and anonymity 108 hirschfeld v mcgrath113 offers an example of a tailored remedy. the defendant was proposing to write an autobiography that his ex-wife feared would contain private information about her health and other matters during their married life. the original anonymised injunction was amended to name the parties following the hearing on the return date because it was acknowledged that since the husband gave undertakings not to make the disclosures, there was no longer a need for anonymity. 5.3 the extent of the intrusion a crucial consideration is the extent of the intrusion into privacy. the publication of photographs is seen as considerably more intrusive114 and much less likely to be permitted than publication of an account in words. 115 in callaghan v independent news & media ltd116 a convicted sexual murderer objected to the publication of photographs, taken in a cafe and a shopping centre, that might help to identify him. the northern ireland high court granted the injunction, although his name, his age, and details of his crime could still be published.117 5.4 truth or falsity unlike the law of defamation, which is concerned with the publication of falsehoods, the protection of private and family life applies whether or not allegations are true. this was resolved in mckennitt v ash118. the court of appeal held that “the defendant cannot deprive the claimant of his article 8 protection simply by demonstrating that the matter is untrue”.119 eady j explained in ctb v news group newspapers ltd: 113 [2011] ewhc 249. 114 douglas & ors v hello! ltd (no 3) [2006] qb 125 at [84]; von hannover v germany 40 ehrr 1 at [59]. 115 campbell v mirror group newspapers ltd [2004] 2 ac 457; theakston v mirror group newspapers ltd [2002] ewhc 137; amanda holden v express newspapers ltd (june 7th 2001). 116 [2009] niqb 1. 117 callaghan v independent news & media ltd [2009] niqb 1. compare murray v newsgroup newspapers ltds [2010] iehc 248 in the republic of ireland, where callaghan was distinguished, and a different decision reached. 118 [2006] ewca civ 778. 119 mckennitt v ash [2006] ewca civ 1714. see also amm v hxw [2010] ewhc 2457 at [14]. doubts about the availability of an injunction in similar circumstances had been expressed by tugendhat j in rst v uvw [2009] ewhc 2448. the denning law journal 109 “it is important always to remember that the modern law of privacy is not concerned solely with information or "secrets": it is also concerned importantly with intrusion.” 120 the falsity of a statement may be relevant in weighing the balance between articles 8 and 10. as was said in mckennitt v ash121, the falsity of allegations will undermine a public interest justification. untrue allegations may also increase the degree of intrusion into privacy since a failure to refute the allegations could be seen as acknowledging their truth.122 a false public interest claim, like the incorrect assertion in the mosley case that there was a nazi theme to a sado-masochistic sex party,123 may also “rub salt into the wound,” and be reflected in the award of damages.124 tugendhat j had little hesition in zam v cfw125 in granting an injunction to prevent the dissemination of libellous allegations of misappropriation of funds from family trusts, which, if unchecked, would have constituted harassment. although he accepted that it was unusual to grant injunction to to prevent the making of defamatory statements, the defendants had made no representations suggesting that any defence could be provided that would succeed at trial.126 5.5 blackmail in some “kiss and tell” cases, the person seeking publicity for their story has first contacted the celebrity involved seeking payment with the implicit or explicit threat or understanding that publication will follow if they do not comply.127 in theakston v mirror group newspapers ltd, ouseley j was only prepared to block publication of information obtained specifically for the purpose of blackmail, and not other information.128 other cases have not made the same distinction.129 amm v hxw130 the ex-wife of a television presenter 120 [2011] ewhc 1326 at [78]. 121 [2008] qb 73 at [79]. 122 xja v news group newspapers ltd [2010] ewhc 3174 at [8]. 123 see cathcart, code breakers, index on censorship, june 30th 2011. 124 mosley v news group newspapers ltd [2008] ewhc 2341 at [29]; [2008] ewhc 1777 at [222]. 125 [2011] ewhc 476. 126 citing bonnard v perryman [1891] 2 ch 269 and greene v associated newspapers ltd [2005] qb 972. 127 see ntuli v donald [2011] 1 wlr 294; theakston v mirror group newspapers ltd. [2002] ewhc 137. 128 [2002] ewhc 137 at [70] and [80]. 129 for example dft v tfd [2010] ewhc 2335. privacy, superinjunctions and anonymity 110 was proposing to disclose information about their relationship including an alleged affair after their divorce. it is very unlikely that any of the information was acquired for the purpose of blackmail. tugendhat j considered that “the fact that a person is making unwarranted demands with threats to disclose information does not of itself mean that that person has no right to freedom of expression.”131 there might even be cases where the blackmailer was under a duty to disclose the information. however: “if a person is making unwarranted demands with threats to publish, that is a factor in deciding whether that person has any art 10 rights, and, if so, then the weight to be accorded to them in balancing them with the applicant's art 8 rights. in my judgment, the need to have regard to the art 8 rights of the claimant, and to promote the public interest in preventing and punishing blackmail are both factors which weigh strongly in favour of the grant of an anonymity order.”132 in the same way, the fact that information has been obtained by manipulation, subterfuge or pressure is likely to be a factor in any assessment of proportionality.133 5.6 courting publicity well before the hra, bridge lj said in woodward v hutchin: “it seems to me that those who seek and welcome publicity of every kind bearing upon their private lives so long as it shows them in a favourable light are in no position to complain of the invasion of their privacy by publicity that shows them in an unfavourable light.” 134 this view has been repeated since the hra came into force. in a v b & c lord woolf said: “if you have courted public attention then you have less ground to object to the intrusion which follows.” 135 an identical view was 130 [2010] ewhc 2457. also applied in poi v the person known as lina [2011] ewhc 25. 131 [2010] ewhc 2457 at [38]. 132 [2010] ewhc 2457 at [38]-[39]. sharp j adopted the same logic in kjh v hgf [2010] ewhc 3064 at [11]. 133 cde v mgn ltd [2010] ewhc 3308 at [40]. 134 [1977] 1 wlr 760 at 765 (lord denning concurring). 135 [2003] qb 195 at [11]. see also hutcheson (formerly known as "kgm") v news group newspapers ltd [2011] ewca civ 808. the denning law journal 111 taken in murray v big pictures (uk) ltd136 where the issue concerned the right to privacy of the son of jk rowling. the court of appeal accepted the view of the trial judge that: “it is difficult to see how ... a famous parent who chooses to exploit his children to gain personal publicity could avoid publication of photographs taken of his children in a public place simply by resorting to the device of making that child the claimant.”137 in hickey v sunday newspapers ltd138 the irish high court declined to grant damages for the publication of pictures of the plaintiff leaving the registry office with her child from a relationship with the husband of a wellknown performer called “twink”139, partly because the “plaintiff had spoken to a journalist with the specific intention of publicity being accorded to the very matters in respect of which she now seeks to claim privacy.”140 5.7 public figures the extent to which there is a reasonable expectation of privacy or a public interest in disclosure may be affected by a person’s public profile. in a v b & c141 lord woolf, in setting out guidelines for first instance judges to follow in privacy cases, referred to council of europe resolution 116 5 of 1998 which states: “public figures must recognise that the special position they occupy in society – in many cases by choice – automatically entails increased pressure on their privacy.142 public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain.”143 in this context lord woolf observed that: 136 2008] ewca civ 446. 137 [2008] ewca civ 446 at [15] and [38]. 138 [2010] iehc 349, [2011] 1 ilrm 333. 139 also known as adele king. 140 [2010] iehc 349 (the judgment does not contain numbered paragraphs). 141 [2003] qb 195. 142 council of europe resolution 116 5 of 1998 para 6. 143 council of europe resolution 116 5 of 1998 para 7. privacy, superinjunctions and anonymity 112 “a public figure is entitled to a private life. the individual, however, should recognise that because of his public position he must expect and accept that his actions will be more closely scrutinised by the media. even trivial facts relating to a public figure can be of great interest to readers and other observers of the media.”144 this strongly suggests that the boundary between public and private life is drawn at a different place in respect of public figures. however, some subsequent cases have cast doubt on this. lord phillips mr in campbell v mirror group newspapers ltd said that: “when lord woolf spoke of the public having 'an understandable and so a legitimate interest in being told' information, even including trivial facts, about a public figure, he was not speaking of private facts that a fair-minded person would consider it offensive to disclose.”145 lord neuberger has gone further still (in the context of responding to newspapers suggesting that celebrities were benefiting from legal processes which would not be available to those with more limited means) in saying, “no special treatment should be accorded to public figures or celebrities: in principle, they are entitled to the same protection as others, no more and no less.”146 5.8 role models lord woolf in a v b & c observed that it was relevant that “footballers are role models for young people and undesirable behaviour on their part can set an unfortunate example.”147 subsequent decisions appear to have distanced from this view. in mckennitt v ash 148 buxton lj suggested that lord woolf’s remarks on this point were directed principally at disreputable conduct (presumably because disclosure of disreputable conduct could be justified as in the public interest). baroness hale in campbell v mirror group newspapers ltd was even more emphatic, observing: “it might be questioned why, if a role model has adopted a stance which all would agree is beneficial rather than detrimental to society, it is so important to reveal that she has feet 144 a v b & c [2003] qb 195 at [11] (xii). 145 [2003] qb 633 at [40]. 146 jih v news group newspapers ltd [2011] ewca civ 42 at [21](6). 147 [2003] qb 195 at [43] (vi). 148 mckennitt v ash [2006] ewca civ 1714 at [65]. the denning law journal 113 of clay.”149 it does not appear even to have been argued in the more recent cases involving footballers that their position as role models justifies a more intense focus on their behaviour or a more restricted view of what could reasonably be considered to be private. 6 the imogen thomas story 6.1 the background to the story the imogen thomas story was at the centre of a crisis in the relationship between the courts, parliament, and the media, and it illustrates many of the issues concerning superinjunctions and anonymity orders. it involved a “kiss and tell” relationship between two “celebrities”, one an originally unidentified footballer with a wife and family, the other a former big brother contestant. on april 14th 2011 a story appeared in the sun reporting that imogen thomas had a sexual relationship with a premier league footballer over a period of six months. his name was not revealed because of an agreement with a sun journalist on april 13th that his name would not be disclosed pending a court hearing the following day. in the afternoon of april 14th eady j granted an order prohibiting disclosure of the footballer’s identity until a further hearing scheduled for the following week. following that hearing, eady j confirmed the anonymity order.150 6.2 the process applied eady j applied the new methodology. the footballer and his family had a reasonable expectation of privacy. “in this case, as in so many others, there can be no doubt on that score. it is concerned with conduct of an intimate and sexual nature and, what is more, there has been no suggestion in this case that the relationship, for so long as it lasted, was conducted publicly.”151 against this, no public interest argument had been made. it was argued that the information was already in the public domain, but eady j said “when the matter was before me, i was not persuaded that there was by that time nothing left to protect in respect of which the claimant still had a reasonable expectation of privacy.” 152 149 campbell v mirror group newspapers ltd [2004] ukhl 22 at [151] echoing the similar sentiment of lord phillips in the court of appeal [2003] qb 633 at [41]. 150 his judgment giving his reasons was not published until may 16th 2011, and further argument took place on issues discussed below in ctb v news group newspapers ltd [2011] ewhc 1232. 151 ctb v news group newspapers ltd [2011] ewhc 1232 at [23]. 152 ctb v news group newspapers ltd [2011] ewhc 1232 at [30]. privacy, superinjunctions and anonymity 114 eady j then took into the balance the rights of imogen thomas and of the journalists to exercise their freedom of expression rights by selling and publishing the story. he said: “it will rarely be the case that the privacy rights of an individual or of his family will have to yield in priority to another's right to publish what has been described in the house of lords as "tittle-tattle about the activities of footballers' wives and girlfriends": see eg jameel v wall street journal europe sprl.153 it has recently been reemphasised by the court in strasbourg that the reporting of ‘tawdry allegations about an individual's private life’ does not attract the robust protection under article 10 afforded to more serious journalism. in such cases, ‘freedom of expression requires a more narrow interpretation’: mosley v uk.154”155 the case for an injunction was strengthened by evidence which, although denied by imogen thomas (who had engaged the publicist max clifford to help her exploit her story), suggested a crude attempt at both blackmail and at a “set-up” hotel meeting to enable photographs to be taken. counsel for the claimant told the judge that ms thomas had asked for £50,000, a sum which she later increased to £100,000, in return for keeping quiet. eady j’s view, on the evidence available to him, was that the applicant would be likely to obtain a perpetual injunction at a full trial, and it was therefore appropriate to continue the interim injunction. he made an order to that effect, with his judgment being handed down three weeks later. 6.3 footballer identified online media interest in superinjunctions and anonymity orders became intense, with almost daily coverage in the print and broadcast media. a twitter site (on a server located outside the uk) was created for subscribers to speculate as to which celebrities had obtained privacy orders. this case was one of the most popular, with a large majority correctly identifying the footballer. the footballer’s response was reportedly twofold. first, on may 18th 2011 he commenced an action against twitter seeking disclosure of the names of individuals who had posted his name on the site.156 secondly, because lawyers 153 [2007] 1 ac 359 at [147]. 154 [2011] echr 774, at [114]. 155 ctb v news group newspapers ltd [2011] ewhc 1232 at [34]. 156 josh halliday, guardian online, may 20th 2011. twitter complied with a disclosure order brought in the us by a uk litigant complaining of libel (sunday telegraph may 29th 2011). the denning law journal 115 for the footballer suspected a leak from news group newspapers (ngn), publishers of the sun, an application was made to eady j for disclosure of email traffic and sms messages by employees of the company, and by kelvin mackenzie, a journalist who wrote for the sun, containing any reference to the claimant. kelvin mackenzie appears to have been named because he disclosed in a broadcast on bbc radio on the morning of april 30th that he regularly passed on the identities of claimants who had been granted injunctions, and that he sought to undermine anonymity orders by dropping “hints in his articles to give any interested readers a steer as to who might be covered by an order.”157 argument on this issue was heard on the same day as eady j handed down his judgment on the continuation of the anonymity order. eady j also heard argument from ngn that the growing information on the internet and in foreign publications meant that the identity of the footballer had so entered the public domain that to maintain the injunction would leave the court looking like king canute seeking to hold back the tides.158 6.4 further developments events then started to move more rapidly. at the end of the week in which eady j heard argument, lord neuberger mr published his long-awaited report on superinjunctions. this did nothing to suppress media disquiet about the growing use of “gagging orders”, and indeed may have increased concern since the press conference in which the report was made public appeared to be setting the judges and parliament on a potential collision course. over the same weekend on 22nd may, the sunday herald, a newspaper which circulates only in scotland, published a full front page picture of the footballer with only his eyes obscured and an editorial saying that it was "unsustainable" for newspapers not to be able to print information widely available on the internet, adding "the issue is one of freedom of information and of a growing argument in favour of more restrictive privacy laws." the newspaper had received legal advice that the english courts’ injunction did not apply in scotland. the following day the prime minister confessed on itv’s daybreak programme, that “like everybody else” he knew the identity of the footballer, and added, echoing the concerns expressed by the sunday herald: 157 see ctb v news group newspapers ltd [2011] ewhc 1326 (may 23rd 2011); [2011] ewhc 1232 (hearing on may 16th) at [8]. 158 see also ctb v news group newspapers ltd [2011] ewhc 1326 at [18] and [24]. one version of this myth has it that canute was in fact seeking to demonstrate to his subjects his powerlessness over nature rather than seeking to assert his omnipotence. privacy, superinjunctions and anonymity 116 "it is rather unsustainable, this situation, where newspapers can't print something that clearly everybody else is talking about, but there's a difficulty here because the law is the law and the judges must interpret what the law is. what i've said in the past is, the danger is that judgments are effectively writing a new law which is what parliament is meant to do. so i think the government, parliament has got to take some time out, have a proper look at this, have a think about what we can do, but i'm not sure there is going to be a simple answer." later that morning, eady j delivered his judgment on the arguments he had heard the previous week. he rejected the claim for disclosure of email and sms traffic from kelvin mackenzie and ngn employees on the basis that the purpose of this disclosure was to demonstrate a contempt of court, and it was for the law officers of the crown to take the initiative on this, with the court being slow to order the release of information which might result in selfincrimination. he also rejected the argument that the ban on naming the footballer should be lifted because his name was so freely available on the internet. in his view the purpose of an injunction protecting private life was not just to preserve confidentiality or secrecy, but to prevent intrusion, and each new publication constituted a further intrusion: “in these circumstances, it seems to me that the right question for me to ask, in the light of jih v news group newspapers ltd159 and re guardian news and media ltd,160 is whether there is a solid reason why the claimant's identity should be generally revealed in the national media, such as to outweigh the legitimate interests of himself and his family in maintaining anonymity. the answer is as yet in the negative. they would be engulfed in a cruel and destructive media frenzy. sadly, that may become unavoidable in the society in which we now live but, for the moment, in so far as i am being asked to sanction it, i decline to do so.”161 6.5 footballer named in parliament eady j’s prophecy was very rapidly fulfilled. the same day, on monday may 23rd 2011, in a house of commons debate, john hemming mp named ryan giggs as the footballer concerned, before being called to order by the speaker who insisted that parliamentary questions should be used as an opportunity for raising issues of principle rather than for flouting court orders. 159 [2011] 2 all er 324. 160 [2010] uksc 1. 161 ctb v news group newspapers ltd [2011] ewhc 1326 at [26]. the denning law journal 117 by this stage, of course, the cat was out of the bag, and the identity of ryan giggs was broadcast prominently on all the main television channels. finally that evening, ngn applied to have the anonymity order lifted because there remained no secrecy to protect. this was also rejected. tugendhat j said: “it is obvious that if the purpose of this injunction were to preserve a secret, it would have failed in its purpose. but in so far as its purpose is to prevent intrusion or harassment, it has not failed. the fact that tens of thousands of people have named the claimant on the internet confirms that the claimant and his family need protection from intrusion into their private and family life. the fact that a question has been asked in parliament seems to me to increase, and not to diminish the strength of his case that he and his family need that protection. the order has not protected the claimant and his family from taunting on the internet. it is still effective to protect them from taunting and other intrusion and harassment in the print media.”162 6.6 later revelations the futility of protecting ryan giggs by means of an injunction became more apparent as time passed. newspaper stories revealed that as well as the affair with imogen thomas, ryan giggs had also conducted an affair with the fiancée of his younger brother rhodri and with a third woman. the affair with the unnamed “third woman” lasted for two years, ending on his marriage; the affair with his brother’s fiancée ended only on her wedding day.163 reports said that only weeks previously, she was paid £500 by ryan giggs to abort his child.164 7 commentary on the current position 7.1 the press and the courts newspapers, both broadsheet and tabloid, have found privacy orders irksome, and have campaigned against them, principally through the pages of their newspapers rather than through the courts. for instance, in mjn v news 162 ctb v news group newspapers ltd [2011] ewhc 1334. he is also reported as saying “if a court can stop one person or five people.... – not 50,000 – is there not something to be achieved?": josh halliday and ben quinn, guardian online, may 23rd 2011. 163 daily telegraph june 8th 2011; daily mail june 8th 2011. 164 greenhill and narain, mail online, june 13th 2011. privacy, superinjunctions and anonymity 118 group newspapers ltd165 kimberley west, a lingerie model, sold to the sun the story of her relationship with a married premier league footballer. the newspaper conceded that an injunction should be granted, but then ran headlines complaining that the story had been “gagged”. as has been seen, many other injunctions have been unopposed,166 and the public interest argument in publication is rarely put forward.167 this may be because the press does not consider it worthwhile168 or because it is using spurious claims about public interest to grandstand for the sake of good headlines. there has been judicial comment on inaccurate reporting,169 but the relationship between the press and the judiciary may not have been helped by some of the fine distinctions made by judges. for instance, in goodwin v news group newspapers ltd170 tugendhat j claimed that the case had not involved a superinjunction because the existence of the order could be disclosed, even though disclosure was confined to saying “the claimant was wealthy and married; and that he was a senior business executive.”171 the court order prohibited disclosure of sir fred goodwin’s name or occupation, the name of the woman with whom he allegedly had an affair, or the fact that there had been a sexual relationship. the difference between this and a superinjunction as now defined in the neuberger report172 is surely so narrow that it is a question of semantics more than substance. 165 [2011] ewhc 1192. 166 see, for example, mnb (later identified as goodwin) v news group newspapers ltd [2011] ewhc 528; mjn v news group newspapers ltd [2011] ewhc 1192. 167 see butterworth and wolfe-robinson, guardian online, august 5th 2011. 168 especially since the failure of the claim in mosley v news group newspapers [2008] ewhc 1777 that an unproved nazi theme justified disclosure of the events at a sado-masochistic sex party. 169 see goodwin v news group newspapers ltd [2011] ewhc 1309; goodwin v news group newspapers ltd [2011] ewhc 1341 at [17]. see also rozenberg, mr justice eady on balancing acts, index on censorship, june 12th 2011. 170 [2011] ewhc 1309. 171 mnb v news group newspapers ltd [2011] ewhc 528 at [17]. an order providing even less information than this was made in dft v tfd [2010] ewhc 2335, but is described by tugendhat j in amm v hxw [2010] ewhc 2457 at [40] and in the neuberger report para 2.27 as being an anonymised injunction rather than a superinjunction. 172 see above, § 1.1. the denning law journal 119 7.2 judicial and public responses one of the first reactions of the judiciary to publicly expressed disquiet about superinjunctions was to put limits upon their use. in ntuli v donald173 maurice kay lj, delivering a judgment with which the other members of the court of appeal agreed, observed that “superinjunctions attract understandable controversy.”174 he pointed out that a superinjunction was not necessary because howard donald could have been protected by a simple anonymity order or by a prohibition restraining the disclosure of details of the relationship.175 the same approach was adopted in jih v news group newspapers ltd176 where, after laying out guidelines governing the use of superinjunctions or anonymity orders, lord neuberger accepted as a general proposition that anonymising the order or banning indentification of the confidential information were alternatives.177 most injunctions since then, as the neuberger report indicates, have been anonymity orders rather than superinjunctions. whilst this policy gives greater recognition to the values of open justice than would the use of superinjunctions, it may have had an unintended (although not unforeseen178) effect of fuelling speculation about the identity of the anonymised person involved. whilst in years gone by that speculation might have taken place principally in parlours and public houses, it can now “go viral” over the internet. the speculation is not always accurate. on may 6th 2011 the daily mail reported that: “mother-of-two mrs logan became a victim of the privacy row after a judge granted an unprecedented worldwide gagging order to a married television star, permanently banning publication of pictures of him with a woman. internet and twitter gossips seized on the entirely false idea that the bbc sports presenter has had an affair with pundit and former england football captain mr shearer”. jemima khan similarly felt obliged several days later179 to deny rumours on the twitter website that she had obtained a superinjunction to prohibit 173 [2010] ewca civ 1276. 174 ibid at [47]. 175 ibid at [46]. 176[2011] ewca civ 42. 177 [2010] ewhc 2818 at [8] and [9]. 178 jih v news group newspapers ltd [2011] ewca civ 42 at [38]: “an anonymity order runs the risk of unintentionally encouraging suspicion and gossip in relation to innocent third parties.” 179 swinford, telegraph online may 8th 2011. privacy, superinjunctions and anonymity 120 publication of intimate pictures of herself and jeremy clarkson, the top gear presenter. speculation about the names of stars who have obtained superinjunctions has become almost a sport in itself. within two minutes of a twitter account being set up to name the celebrities who had secured superinjunctions, “more than 2,000 people had signed up to follow updates and new postings.” within days “the account had more than 26,000 followers.”180 7.3 disdain in parliament concerns have been expressed in parliament about the use of anonymity orders, and advantage has been taken of parliamentary privilege to name two claimants, sir fred goodwin and ryan giggs. john hemming mp, who named ryan giggs, said that he did so because he wanted to protect his constituents and others from legal process for having named him on the internet: “basically when he... showed that he was going to go after relatively normal people and try and prosecute them, for gossiping about him on a matter of trivia, i think he has to be held to account for that.” 181 the use of parliamentary privilege in this way invoked the intervention of mr speaker, and adverse comment by senior judges. on the day that ryan giggs was named in parliament, lord judge lcj and lord neuberger were holding a press conference launching the neuberger report on superinjunctions.182 lord judge said that the media: “need to think whether it's a very good idea for our lawmakers to be in effect flouting a court order because they disagree with the order or, for that matter, because they disagree with the law of privacy which parliament has created”.183 this remark was widely viewed as putting the courts and parliament on course for a constitutional crisis.184 fortunately that prospect has not materialised, and the neuberger report itself takes a more measured view: 180 swinford, telegraph online may 9th 2011. 181 bbc online may 23rd 2011. 182 see above §1.1. 183 bowcott and watt, guardian online, may 21st 2011. 184 sedley, the goodwin and giggs show, (2011) 33 london review of books no. 12 p 3. the denning law journal 121 “article 9 of the bill of rights 1689 recognises and enshrines a longstanding privilege of parliament: freedom of speech and debate. it is an absolute privilege and is of the highest constitutional importance. any attempt by the courts to go beyond that constitutional boundary would be unconstitutional. no super-injunction, or any other court order, could conceivably restrict or prohibit parliamentary debate or proceedings.” that view has been accepted in parliament by the attorney-general as the considered and official response of the judiciary.185 7.4 enforcing injunctions anonymity orders are enforced in exactly the same way as other injunctions, namely, by the machinery of contempt of court. as orders granting injunctions make clear, disregarding the injunction can lead to a fine or imprisonment. the courts have, however, been reluctant to take the initiative. in responding to complaints that an anonymity order has been disregarded, judges have said that invoking the contempt of court process is a matter for the attorney-general. in goodwin v news group newspapers ltd tugendhat j declined to refer to the attorney-general a complaint by the woman alleged to have had an affair with sir fred that press coverage had breached the injunction by tending to identify her: “the reason that i decline to make the reference is that in my judgment it would not assist the attorney-general. the lady is free to refer the matter to the attorney-general herself, and the attorneygeneral is free to act of his own motion. this case has received extensive coverage in very many newspapers and other news media, and has been the subject of public judgments.” 186 the attorney-general said in law in action on bbc radio 4 on june 7th that “i will take action if i think that my intervention is necessary, in the public interest, to maintain the rule of law, proportionate, and would achieve an end of upholding the rule of law,” and “the fact you are doing it on twitter does not give some blanket exemption.” he added that there was nothing to prevent litigants acting of their own initiative. the rule of law depends not just upon the machinery of justice, however, but upon general compliance with the law. where the law departs from what most individuals and the press perceive as being fair and appropriate, there is 185 commons hansard may 23rd 2011 col 636. 186 [2011] ewhc 1341 at [20]. privacy, superinjunctions and anonymity 122 a problem. if that problem persists, it can be dealt with only by a change in practice or by a change in the law. 7.5 speed and extent of development of privacy laws britain’s privacy laws underwent a metamorphosis with the enactment of the hra 1998. there is no doubt that a fundamental and rapid change was required if britain was to be compliant with the echr and the jurisprudence of the european court. what is less clear is whether the extent of the change was necessary. max mosley’s claim that his rights had been infringed because there was no requirement of pre-notification failed in the european court.187 the court considered that states had a wide “margin of appreciation” in meeting convention obligations, especially under article 8, since there was a lack of clarity about the notion of “respect” for private life;188 there were variations in practice across the member states;189 the degree of protection for privacy needed to be commensurate with the seriousness of the invasion;190 and a fair balance had to be struck between the competing rights and interests arising under articles 8 and 10.191 on the specific issue of max mosley’s application, the view of the european court was that the uk’s practice in not requiring pre-notification was within the margin of appreciation. this was emphasised by the diversity of practice amongst member states about how to balance articles 8 and 10,192and by the “not unjustified” concerns about the effectiveness of the duty given the need for a public interest exception, and the lack of means of enforcement which did not unduly “chill” freedom of expression.193 more generally, the case suggests that a slower pace of development of privacy law, and a less aggressive approach to enforcement by means of prior restraint with greater reliance upon an effective system for payment of compensation for unjustified invasions of privacy might have been considered by the european court to have been compliant with the convention. 187 mosley v uk [2011] echr 774. see above, text to n 83. 188 [2011] echr 774 at [108]. 189 [2011] echr 774 at [110]. 190 [2011] echr 774 at [109]. 191 [2011] echr 774 at [111]. 192 [2011] echr 774 at [124]. 193 [2011] echr 774 at [126]. the denning law journal 123 7.6 prior restraints require “most careful scrutiny” the european court in mosley appeared to have a particular concern about the use of prior restraint for dealing with invasions of privacy. the court observed that: “while article 10 does not prohibit the imposition of prior restraints on publication, the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the court. this is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest.” 194 whilst not a condemnation of the practice of granting injunctions to protect privacy, this is hardly a ringing endorsement of the current practice in england. there are other considerations which suggest that the courts could have been less ready than they have to use anonymity orders so willingly in cases where the intrusion on private life does not have serious consequences. according to lord nicholls in cream holdings limited v banerjee hra section 12(3) was intended to inhibit the too ready grant of interlocutory injunctions by requiring a higher threshold for the grant of interlocutory injunctions against the media than the normal test.195 the provision has not had the impact which parliament seems to have intended.196 in addition, the award of an interlocutory injunction is discretionary. the courts could have been less willing to find that respect for privacy automatically requires the grant of an injunction. more account could have been taken of the seriousness of the damage that a revelation would cause, and the real origin of that damage. if a footballer has been having an affair with his brother’s fiancée would any damage to his marriage be the result of the footballer’s infidelity (which his wife may have discovered anyway), of the lack of honesty in the relationship, or only of the publicity resulting from press coverage? the courts have traditionally been more cautious in granting injunctions in libel cases, as reflected in the rule in bonnard v perryman197 (an interlocutory injunction will not be granted where the defendant intends to prove the truth of the defamatory statement), and it is odd that a person should be more protected against the disclosure of the truth than against the telling of lies. neither does the recent approach recognise the importance historically 194 [2011] echr 774 at [117]. 195 2005] 1 ac 253 at [15]. 196 see above §3.2. 197 [1891] 2 ch 269. privacy, superinjunctions and anonymity 124 accorded to freedom of expression. for instance, before the hra, hoffman lj said of freedom of expression under the echr: “it cannot be too strongly emphasised that outside the established exceptions, or any new ones which parliament may enact in accordance with its obligations under the convention, there is no question of balancing freedom of speech against other interests. it is a trump card which always wins." 198 similarly, in r v shayler199 lord hope said that when looking at any restriction on freedom of expression, “a close and penetrating examination of the factual justification for the restriction is needed.” whilst these remarks were not made in the context of the balancing of articles 8 and 10, they are illustrative of the importance of freedom of expression. the approach in ireland, while applying principles very similar to those in england, appears to have a stronger bias against prior restraint. in murray v newsgroup newspapers ltd200 a convicted violent sex offender objected to the disclosure of information which might have helped in his identification. irvine j pointed out that particular care had to be taken where the relief being sought was a prior restraint order,201 and that, “any such restriction [on freedom of expression] calls for the most careful scrutiny,”202 with the onus being on the plaintiff to demonstrate that it was required on the balance of convenience.203 the plaintiff’s claim for an injunction failed because he had “failed to demonstrate sufficient significant inconvenience such as would justify a curtailment on the freedom of expression of the defendant newspapers.”204 7.7 are the restraints discriminatory? tugendhat j has refuted suggestions that the operation of anonymised injunctions has been discriminatory. he said “there is no stereotype which can be used to categorise claimants in privacy actions, and many of them are 198 r v central independent television plc [1994] fam. 192. 199 [2002] ukhl 11, [2003] 1 ac 247 at [61]. 200 [2010] iehc 248. 201 [2010] iehc 248 at [58]. 202 [2010] iehc 248 at [109]. this proposition was derived from the observer and the guardian v u k (1992) 14 ehrr 153 where the european court held that “article 10 of the convention does not in terms prohibit the imposition of prior restraints on publication, as such. … on the other hand, the dangers inherent in prior restraints are such that they call for the most careful scrutiny by the court.” 203 [2010] iehc 248 at [85]. 204 [2010] iehc 248 at [85]. the denning law journal 125 women”.205 after giving a list of examples drawn from his book on privacy, he continued “all of the claimants in that passage were women or children, some rich, and some not rich.”206 while this may be true, privacy orders are not cheap, with the cost certainly running to several thousand pounds, putting them beyond the reach of most people with ordinary means. in relation to gender, whilst there is no evidence of an inherent bias in the law, some of the most prominent reports have disclosed only the woman’s side of a “kiss and tell” story, on occasions with details affecting her family. 207 7.8 protecting commercial interests the european court indicated in von hannover v germany that “the guarantee afforded by article 8 of the echr is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings.” 208 english law protects privacy even where the primary motive is commercial,209 and this has been a cause of some public disquiet. it is now probably too late for english law to distinguish between genuinely private space and space to which access is controlled for commercial reasons. however, the distinction is surely relevant when considering whether an injunction should be granted. damages are far more likely to be an adequate remedy where privacy laws are being used to secure the opportunity for commercial exploitation than where privacy is being sought “to ensure the development of the personality”. 7.9 ownership of the law england’s new privacy law has been created by a combination of the legislative incorporation of the echr into english law; judicial development by english judges; and judicial development by the european court. this interaction has not always been acknowledged. some comments depict the law as having been imposed by europe210 or as being developed in a way which was not anticipated or authorised by parliament. the prime minister, 205 tse v news group newspapers ltd [2011] ewhc 1308 at [36]. 206 tse v news group newspapers ltd [2011] ewhc 1308 at [38]. 207 for example nej v wood [2011] ewhc 1972 concerned the relationship between “a married actor” and helen wood, a woman reportedly previously involved in sex for payment with wayne rooney. media reports contained information in relation to which helen wood’s family might have had a reasonable expectation of privacy: greenhill and narain, mail online, april 14th 2011. 208 von hannover v germany [2004] echr 294. 209 douglas v hello! ltd (no 3) [2005] ewca civ 595. 210 see sir william cash, commons hansard may 23rd 2011 column 638. privacy, superinjunctions and anonymity 126 david cameron, has said that “the judges are creating a sort of privacy law,” 211about which he felt uneasy since parliament, not judges, should decide on the balance between press freedom and privacy. paul dacre, writing in the guardian, has gone even further. he said: “the british press is having a privacy law imposed on it, which apart from allowing the corrupt and the crooked to sleep easily in their beds is undermining the ability of mass-circulation newspapers to sell newspapers in an ever more difficult market. this law is not coming from parliament no, that would smack of democracy but from the arrogant and amoral judgments words i use very deliberately of one man. justice david eady has, again and again, under the privacy clause of the human rights act, found against newspapers and their age-old freedom to expose the moral shortcomings of those in high places.”212 conversely, other remarks suggest that the development of the law should have been no surprise to parliament. the neuberger report states that “the courts (as parliament anticipated) have developed the common law in light of the convention and its jurisprudence,”213 and the attorney-general, in a commons debate, remarked: “in constructing the human rights act, i do not think parliament can be described as anything other than open-eyed as to what it intended to do about privacy law.” 214 in ctb v news group newspapers ltd eady j said: “it has for several years been repeatedly claimed in media reports that courts are ‘introducing a law of privacy by the back door’. yet the principles have long been open to scrutiny. they are readily apparent from the terms of the human rights act , and indeed from the content of the european convention itself... the law has been loyally applied by the courts in a wide variety of circumstances and exhaustively explained in numerous appellate judgments.” 215 eady j also felt obliged to defend the development of the law in one of the hearings in the mosley litigation: 211 cameron 'uneasy' about use of injunctions, bbc online 21 april 21st 2011. 212 the guardian, november 10th 2008. 213 neuberger report, para 1.4, citing lord irvine of lairg lc, house of lords hansard, hl debates, november 24th 1997, cols 771, 783 and 785 and the human rights act 1998 s2. 214 commons hansard may 23rd 2011 col 642. 215 [2011] ewhc 1232 at [20] – [21]. the denning law journal 127 “it is not simply a matter of "unaccountable" judges running amok. parliament enacted the 1998 statute which requires these values to be acknowledged and enforced by the courts. in any event, the courts had been increasingly taking them into account because of the need to interpret domestic law consistently with the united kingdom's international obligations. it will be recalled that the united kingdom government signed up to the convention more than 50 years ago.” 216 attempts to cast responsibility entirely on the judges or entirely on parliament are unfortunate. the reality is that the law has developed as a result of both inputs. 8 where from here? 8.1 legislative change legislation could more clearly delimit the limits to privacy and its enforcement. given the “margin of appreciation” allowed to member states within the echr to implement treaty obligations in their own way and in their own legal contexts,217 the balance could be drawn differently from that which currently applies. a more extreme response would be to repeal the hra, so that judges were no longer required to follow the precepts of the echr. however, if britain remained a signatory to the convention, it would continue to exert an influence, and more detailed laws (such as a “bill of rights”) would still be needed to introduce principles which differ from the rules set out in current caselaw. 8.2 judicial change eady j said in ctb v news group newspapers ltd: “parliament may at some stage wish to change the law... but in the meantime the courts are obliged to apply the law as it currently stands.... it is not easy to see... how any significant changes could be achieved other than by legislation.” 218 216 [2008] ewhc 1777 at [7]. 217 see for instance mgn ltd v u k [2011] echr 66, [2011] echr 919. the margin of appreciation applies both to legislative action ([2011] echr 919 at [200]) and to decisions of the courts ([2011] echr 919 at [150]). 218 [2011] ewhc 1326 at [15] – [17]. see also tse v news group newspapers ltd [2011] ewhc 1308 at [16]. privacy, superinjunctions and anonymity 128 there is more scope for judicial change than this suggests. first, the boundary of private life could be delimited differently, reversing some of the distance which has been travelled since the theakston decision, without transgressing echr obligations.219 secondly, there could be a greater reluctance to use injunctions, reserving them for instances where it is demonstrated that damages would not be a sufficient remedy.220 thirdly, the current approach appears to assume that once a reasonable expectation of privacy has been established, it is worthy of protection by injunction unless good countervailing reasons are demonstrated. that approach could be reversed, as it is in ireland.221 in the landmark decision in herrity v associated newspapers (ireland) ltd222 dunne j held that damages could be awarded in irish law for an invasion of privacy.223 in considering the balance between the rights in the irish constitution guaranteeing freedom of expression and privacy224, dunne j observed that “as a general proposition, i think that cases in which the right to privacy will prevail over the right to freedom of expression may well be far and few between”. the actions in that case had taken place before the echr became part of irish domestic law, but this general approach was endorsed by kearns p in hickey v sunday newspapers ltd225 where the events took place after the convention was incorporated into law. the neuberger report shows how practice has developed between 2010 and the report’s publication in may 2011 to ensure that superinjunctions are likely to be used only in the most exceptional circumstances, and only for the shortest possible period. other changes proposed in the neuberger report226 are likely to have an impact. increased emphasis on the principle that orders should not be granted without notice to the parties affected, including the media, will help to ensure that the courts take full account of all relevant considerations, provided that the media pursues public interest arguments more vigorously, and where a good case is not accepted at trial, appeals. as a matter of principle, a court accepting that reporting should be anonymous 219 see above §2.2 and 7.5. 220 see above §7.5 and 7.6. 221 see above §4.4 and 7.6. 222 [2009] 1 ir 316. 223 in this case the disclosure of an affair by a married woman with her roman catholic parish priest discovered through illegal phone tapping 224 an unenumerated human right established by mcgee v ag [1974] ir 284 and subsequent cases. 225 [2010] iehc 349. 226 practice guidance for interim non-disclosure orders envisaged in the neuberger report was launched on august 1st 2011. the denning law journal 129 should always provide its reasons for reaching this conclusion,227 and those reasons should be made publicly available.228 8.3 the leveson enquiry and media self-regulation the ability of the media to regulate itself has been called into question recently by scandals involving the interception of telephone messages by reporters acting for the news of the world (and potentially for other newspapers) which have led to the closure of the newspaper and the establishment of a public enquiry in july 2011 led by leveson lj. the enquiry is expected to take at least a year before reporting. the enquiry may well make recommendations for more effective protection of personal privacy, and is likely to review the press complaints commission code of conduct. as the european court recognised in the mosley229 case there is a role for press self-regulation. it is possible that exemplary damages can be awarded to redress serious invasions of privacy 230 and if the code of conduct has been breached, this may be a factor in deciding whether such an award is appropriate. 8.4 catch 22 ryan giggs could hardly have obtained greater publicity than he achieved through an anonymised injunction. seeking an injunction may thus defeat its very purpose. this was recognised by the irish high court in foley v sunday newspapers ltd. a notorious criminal known as “the viper” objected to references to him made in certain publications about underworld gangsters. kelly j remarked: “the information in question is in the public domain and the bringing of this action with its attendant publicity has given it a much wider circulation.”231 the experiences of ryan giggs and sir fred goodwin in seeing their attempts at anonymity backfire may well be a powerful disincentive for others. 227 this proposition is tacitly accepted by the neuberger report – see paras 1.28 and 3.53. 228 as was recommended in jih v news group newspapers ltd [2011] ewca civ 42 at [21(9)] & [35]. see neuberger report para 4.8. 229 [2011] echr 774. see above § 3.3. 230 mosley v news group newspapers ltd [2008] ewhc 2341. 231 [2005] 1 ir 88 at [60]. privacy, superinjunctions and anonymity 130 8.5 do nothing? doing nothing is nearly always an option, but it is not necessarily the best choice. however, the storm about superinjunctions has blown over almost as rapidly as it started, being displaced by the news of the world telephone hacking scandal.232 any legislative change will be slow in coming but, although controversial, probably eclipsed by other issues in any bill of rights, the most likely vehicle for change. in the meantime, most of the arguments have already been deployed; the judiciary is well aware of the controversy about superinjunctions and is now more circumspect;233 the implementation of the neuberger report will equally have an impact; the “catch 22” dilemma may reduce the number of anonymity orders being sought; and as media interest subsides, internet gossip is likely to wane. 232 see greenslade, guardian online, july 26th 2011. 233 see for instance hutcheson (formerly known as "kgm") v news group newspapers ltd [2011] ewca civ 808. the denning law journal 219 denning law journal 2007 vol 19 pp 219-247 jehovah’s witnesses – medical care, minors and the religious rite/right david ziebart∗ introduction responsible and caring parents seek the best possible medical care for their children. in the case of parents who are jehovah’s witnesses their religious beliefs prohibit medical intervention which uses blood. this prohibition specifically includes the refusal of blood transfusions even where such a refusal may result in the death of the person concerned. jehovah’s witnesses as a result are often viewed with animosity or contempt, considered foolhardy and recklessly disregarding life, martyring themselves and their children. this article seeks to examine the religious origins of the blood prohibition and attempts to set the rationale for refusal in its religious context. it also explores the approach of the courts in the uk, the us and canada to jehovah’s witnesses children (supported by their parents) including those who have expressed a wish to refuse such treatment or else have been too young to do so. it concludes with presenting such refusal as a religious right which it is argued engages article 9 of the european convention on human rights (echr). the biblical doctrine on blood jehovah’s witnesses’ belief system is derived from the bible. this is the means by which jehovah1 transmitted his standard to mankind and established the principles governing the way one should worship and live one’s life.2 biblical principles are applied to all aspects of life, ranging from parenting3 to ∗ this article is based on an undergraduate dissertation submitted to the faculty of law, university of reading llb programme 2005. david ziebart llb gave permission to the denning law journal’s editor to adapt the dissertation for publication. david ziebart is a consultant at michael page international and a practising jehovah’s witness. 1 the personal name of god in the bible, translated from hebrew, meaning ‘he causes to become.’ 2 ‘all scripture is inspired of god and beneficial,’ (watchtower bible and tract society, inc 1990) p 7. 3 eg‘how to be a successful parent,’ watchtower 1st may 1988, (watchtower bible and tract society, inc 1988) p 3-6. jehovah’s witnesses – medical care, minors and the religious rights 220 moral behaviour4 and to political neutrality. throughout the bible, life is viewed as a gift from jehovah and many christians today recognise jehovah as the ultimate source of life.5 in the bible, blood is often used as a symbol of the soul or life of a human or animal, and this is seen as belonging to god. the first biblical injunction prohibiting the eating of blood was given to noah and his sons: “every moving animal that is alive may serve as food for you. as in the case of green vegetation, i do give it all to you. only flesh with its soul its blood you must not eat.”6 this was repeated much later in mosaic law, where, to prevent the consumption of blood, it was not to be stored but instead “poured out” on the ground like water and covered with dust effectively giving it back to jehovah, not using it for one’s own purpose.7 mosaic law called for a number of offerings to be made to god, such as grain, oil and wine.8 it permitted the israelites to use blood only in the offering of animal sacrifices to jehovah so that they could be granted forgiveness for their inherited sinful state. the redemptive power of blood is found in leviticus 17: 11,12 (emphasis added): “the soul of the flesh is in the blood, and i myself have put it upon the altar for you to make atonement for your souls, because it is the blood that makes atonement by the soul in it. that is why i have said to the sons of israel: “no soul of you must eat blood.” christians also understood blood as having a unique role associated with providing relief from sin and death inherited from adam. the apostle paul writing in the 1st century ce, in hebrews 9:22 commented, “nearly all things are cleansed with blood according to the law, and unless blood is poured out no forgiveness takes place.” under mosaic law, animal’s blood was poured at the base of the altar to illustrate that atonement depended on blood.9 however in hebrews 10:3,4 it is written, “by these sacrifices there is a reminding of sins from year to year, for it is not possible for the blood of bulls and goats to take sins away.” hence the animal sacrifices only prefigured the sacrificial death of jesus christ, who would give his life or pour out his blood to redeem mankind. jehovah’s witnesses believe that the bible is categorical 4 eg ‘learn and teach christian morality,’ watchtower 15th june 2002, (watchtower bible and tract society, inc 2002) p 17-22. 5 acts 17:28 ; revelation 4:11. 6 genesis 9:3,4; ibid. 7 deuteronomy 12:16. 8 leviticus 2:1-4; 23:13; numbers 15:1-5. 9 leviticus 9:9; hebrews 9:22; 1 corinthians 1:18; see also insight on the scriptures volume 2 (watchtower bible and tract society, inc 1988) p 345. the denning law journal 221 about forgiveness resting on the presence of christ’s blood. “this means my blood of the covenant, which is to be poured out on behalf of many for forgiveness of sins.”10 similarly, paul’s letter to the congregation in ephesus provides further evidence on this point: “by means of him we have the release by ransom through the blood of that one, yes, the forgiveness of our trespasses, according to the riches of his undeserved kindness.”11 the only way for christians to be forgiven for their sins and gain benefits from the ransom is “through the blood he (jesus) shed.”12 revelation speaks of those who “wash their robes in the blood of the lamb (jesus),”13 thought to symbolize followers of jesus cleansing their consciences before god. hence mankind was not allowed to use blood in any unauthorised way. it had legal significance before jehovah as it enabled permanent forgiveness and eternal salvation. such sanctity was to be respected. whether the restrictions in the mosaic law were to be binding on 1st century christians was debated by a council in jerusalem in 49 c.e. after careful consideration, james, the chairman of the council, stated that christians were only bound to observe certain divine requirements, as outlined in acts 15:28,29: “the holy spirit and we ourselves have favoured adding no burden to you, except these necessary things, to keep abstaining from things sacrificed to idols and from blood and from things strangled and from fornication. if you carefully keep yourselves from these things you will prosper.” although not all the specific provisions within the mosaic law were to be binding on christians after the death of christ, the need to “abstain from blood” and recognise its elevated position was clearly ratified within this text. the early christian congregations took the ruling of the jerusalem council as definitive, with the “decision that they should keep themselves from what is sacrificed to idols as well as from blood and what is strangled and from fornication.” 14 10 matthew 26:28. 11 ephesians 1:7. 12 colossians 1:20. 13 revelation 7:9,14. 14 acts 21:25. see also the historical record of theologian priestley j the theological and miscellaneous works, (volume ix, 1818) p 366also recognizes the importance of the biblical injunction on the christians in the 1st century ce:‘the prohibition to eat jehovah’s witnesses – medical care, minors and the religious rights 222 blood prohibition in medical treatment the medical use of blood is also incorporated within the scope of this prohibition. the scriptural passages in acts refer separately to “blood” and “what is strangled” in order to clarify that blood is to be avoided both as part of one’s diet, as in the case of un-bled meat, and also as “blood” itself.15 this latter context includes the use of blood for therapeutic purposes, a popular therapy for certain ailments at the time. the second-century physician aretaeus of cappadocia, reported on the drinking of human blood as a treatment for epilepsy.16 by the 16th century experiments involving transfused blood began. thomas bartholin, the professor of anatomy at the university of copenhagen, noted with concern the dilemma medical treatment posed for religious observance. “those who drag in the use of human blood for internal remedies of diseases appear to misuse it and to sin gravely. cannibals are condemned. why do we not abhor those who stain their gullet with human blood? similar is the receiving of human blood from a cut vein, either through the mouth or by instruments of transfusion. the authors of this operation are held in terror by the divine law, by which the eating of blood is prohibited.”17 jehovah’s witnesses will not accept transfusions of whole blood, or any of the primary components namely red and white blood cells, plasma and platelets. there is no biblical command that forbids the use of other human tissue or bone. none of the scriptures state that such body parts have special significance in god’s eyes. it is therefore left to the conscience of an blood, given to noah, seems to be obligatory on all his posterity...if we interpret [the] prohibition of the apostles by the practice of the primitive christians, who can hardly be supposed not to have rightly understood the nature and extent of it, we cannot but conclude, that it was intended to be absolute and perpetual; for blood was not eaten by any christians for many centuries.’ see also benson j, the holy bible, containing the old and new testaments, (new york, volume i, 1839) p 43, see also newton i, the chronology of ancient kingdoms amended, (dublin, 1728) p 184. 15 stevenson p a manual for blood conservation, (tfm publishing ltd, 2005) p 191. 16 adams f the extant works of arateaus, the cappodocian,’ (the sydenham society, london, 1855) p 471.see also tertullian (c 160-230 ce), apology (loeb classical library, cambridge and london, 1977) chapter 30, p 409; pliny, natural history, by pliny xxviii.ii.4, (loeb classical library, vol viii, harvard university press, cambridge, ma) p 5. 17 bartholin t ‘a medical disquisition concerning the prohibition of blood,’ (frankfurt, 1673) p 11. the denning law journal 223 individual as to whether they view organ transplants as an acceptable form of treatment. with regard to the use of secondary blood components such as albumin and haemophiliac preparation, it is again for the individual concerned to decide whether they fell these fall within the scope of the scriptural prohibitions.18 jehovah’s witnesses medical treatment and self determination how does the law regard jehovah’s witnesses who wish to be treated without the use of blood products? the starting point requires consideration of how far the principle of self-determination is granted legal recognition in relation to medical care, and how that principle is affected by the age of a patient. self-determination – an established legal principle the concept of self-determination was summarized by lord donaldson as “the patient’s interest…to live his own life how he wishes, even if it will damage his health or lead to a premature death.”19 the general legal rule that is a well established cornerstone of medical law within the uk is that in order for a doctor to proceed, the consent of the patient is required: “...every human being of adult years and sound mind has a right to determine what should be done with his own body; and the surgeon who performs an operation without consent commits an assault for which he is liable in damages.”20 justice cardoza’s legal rule is clear and unambiguous, and has received recognition not only in common law and legislation but also within numerous ethical codes21 and international agreements.22 the penalties imposed on 18 family care and medical management of jehovah’s witnesses, (watchtower bible and tract society, inc 2000) beliefs p 4. 19 re t (adult: refusal of medical treatment) (1992) 9 bmlr 46 at 59. 20schloendorff v society of new york hospital (1914) 211 ny 125 at 126 per cardoza j approved, for example, in re f (mental patient: sterilisation) [1989] 2 all er 545; airedale nhs trust v bland [1993] 1 all er 821; hughes j in re ak (medical treatment: consent) [2001] 1 flr 129; butler-sloss p in ms b and an nhs hospital trust [2002] ewhc 429 (fam). 21 eg information and consent for anaesthesia, the association of anaesthetists of great britain and ireland, july 1999; seeking patients’ consent: the ethical considerations, general medical council, august 1999. jehovah’s witnesses – medical care, minors and the religious rights 224 physicians who disregard such a principle can be criminal as well as civil. in 1992, the house of lords said: “any treatment given by a doctor to a patient which is invasive (ie involves any interference with the physical integrity of the patient) is unlawful unless done with the consent of the patient: it constitutes the crime of battery and the tort of trespass to the person.”23 the potential charge of battery is designed to act as a deterrent to make doctors think twice about treating patients in a way that they personally view as correct but that has little regard for the autonomy of the patient. although unlikely to be liable for the crime of battery if they have acted in good faith, the fact that there can be civil repercussions for physicians either in the tort of battery or negligence illustrates that the judiciary will not simply ignore a patient’s autonomy by deferring to the doctor’s assessment of what is medically appropriate. if the situation is an emergency and the patient is unable to communicate their medical wishes, the common law grants a doctor the right to proceed without patient consent under the doctrine of necessity.24 such permission would apply to unconscious/comatose adults in an emergency situation where their personal wishes cannot be ascertained.25 however, when the wishes of the patient are clear, the right of selfdetermination is unaffected if a patient decides to reject a form of medical intervention that is regarded as the only chance for the life of the patient. the actions of a doctor who proceeds without patient approval will be unlawful. the extent to which the uk courts will protect an adult’s right to choose or refuse is evident by the force of the language in the judgements in airedale nhs trust v bland: “a (competent) person is completely at liberty to decline to undergo treatment, even if the result of his doing so will be 22 eg the universal declaration of human rights, 1948; the european convention for the protection of human rights and fundamental freedoms, 1950. 23airedale nhs trust v bland [1993] 1 all er 821 at 882 per lord brownewilkinson. 24 re f (a mental patient: sterilisation) [1990] 2 ac 1, per lord goff at 73. 25 under such circumstance the advanced medical directive. provides a means of anticipating a patients wishes see. he v a hospital nhs trust [2003] ewhc 1017; re ak (medical treatment: consent) [2001] 1 flr 129. the denning law journal 225 that he will die.”26….”the principle of sanctity of human life must yield to the principle of self-determination.”27 doctors can face civil liability in negligence or criminal culpability in manslaughter28 or even murder29 where inappropriate treatment, or no treatment at all, is administered. however, even in this critical context, the individual’s right to self-determination where competent should be the prevailing interest. when applying these legal principles to the medical care of an adult jehovah’s witness, the case law establishes that the principle of selfdetermination allows a competent individual to refuse a blood transfusion on religious grounds. the key issue is whether the patient has the necessary capacity, or competence to decide, whether to consent to or refuse a particular form of treatment.30 re t31 established that an adult will be presumed to have such decision-making capacity, but such a presumption can be rebutted, at which point such an individual is classed as incompetent.32 capacity within the uk legal system is not determined on the basis of what society in general views as a reasonable or rational decision, but instead on the three-stage test of competence identified by thorpe j in re c. 33 the adult patient must be able to: 1. comprehend and retain the necessary information 2. believe it; and 3. weigh the information, balancing the risks and needs, so as to come to a choice. lord donaldson mr made it abundantly clear in re t that an adult who refused a potentially lifesaving blood transfusion on religious grounds would not be regarded as incompetent simply because the majority of society would view such a stance as wholly irrational. the adult patient still had the right to decide: “[a patient’s ] right of choice is not limited to decisions which others might regard as sensible. it exists notwithstanding that the reasons for making a choice are rational, irrational, unknown or even non-existent.”34 the court 26airedale trust at 860 per lord keith. 27airedale trust at 866 per lord goff of chieveley. 28 r v adamako [1995] 1 ac 171. 29 r v adams (bodkin) [1957] crim lr 365; r v cox (1992) 12 bmlr 38. 30 this discussion will use the terms ‘capacity, and ‘competence’ interchangeably. 31re t (adult: refusal of treatment) [1992] 4 all er 649. 32ibid, per lord donaldson at 796d. 33re c (adult: refusal of medical treatment) [1994] 1 flr 31 at 33d. reaffirmed, for example, in st george’s healthcare nhs trust v s [1998] 3 all er 673. 34 concurring with sidaway v bethlem royal hospital [1985] ac 871, per lord templeman at 904. jehovah’s witnesses – medical care, minors and the religious rights 226 of appeal in re mb35 endorsed the re c test and recognised that in principle a patient’s veto of medical treatment on religious grounds could be valid even if the consequences could be death for, in this instance, the pregnant mother or her unborn child. the present state of the law did not support the conclusion that an unborn child should be granted any legal interests, as had been suggested in previous cases.36 the court in re mb also concurred with the earlier remarks of lord donaldson mr in re t, that the competence of a patient must be “commensurate with the gravity of the decision…the more serious the decision, the greater the capacity required.”37 such a statement is not thought to promote the view that a greater level of reasoning ability is required for a decision with more serious consequences, but rather, that the patient should be able to understand more detail about the procedure involved before making such a decision. as such, judicial scrutiny of a patient’s decision-making capacity and reasoning will be at its highest in a lifethreatening situation.38 however, once capacity is established on the basis of re c, the state has no power to interfere or obstruct competent adult refusal. the recent approach of the judiciary has been to defer to the wishes of competent adults, even when the personal view of the judge in question may well have been that refusal of treatment based on religious beliefs was an irrational stance.39 although there may be an understandable reluctance on the part of a doctor to discontinue treatment when they perceive that they can intervene to remedy a medical condition, it was recently emphasised that such a desire to preserve life should not take precedence over an adult’s competent request for cessation of treatment.40 competent minors and medical treatment the uk law has demonstrated an unwillingness to apply these clearly embedded legal principles to minors in the regulation of their own healthcare even where they are ostensibly competent. historically, the common law was unclear as to whether a minor could make medical decisions for themselves, leaving some to suggest that a child could never validly consent to 35re mb (adult: medical treatment) (1997) 38 bmlr 175 at pp 48 per butler-sloss lj. 36 eg re s (adult: refusal of medical treatment) [1992] 4 all er 671; thorpe j obiter in secretary of state for the home department v robb [1995] 1 all er 677. 37 re t per lord donaldson at 796f. 38 kennedy i and grubb a, medical law, (butterworths 3rd edition 2000) p 627. 39see re t approving the canadian case of malette v shulman (1990) 72 or (2d) (ontario ca). 40 re b (adult: refusal of medical treatment) [2002] 2 all e.r. 449. the denning law journal 227 treatment.41 however, the right of competent minors to consent under certain conditions is codified within government legislation. for example, a 16 or 17year-old can consent to medical treatment under the provisions within section 8 of the family law reform act 1969. nolan lj, commenting on the effect of this statute in re w,42 made it clear that 16 and 17-year-olds have “the same capacity as an adult to surgical, medical or dental treatment.”43 this is rebuttable, however, if the child suffers from a mental disability which will affect their understanding. in general though, the minor who is 16 or older is placed in the same legal position as an adult in this context. lord scarman in gillick v west norfolk and wisbech area health authority44 established that a minor who is under 16 and who demonstrates a “sufficient understanding and intelligence,” can have the legal right to make their own medical decisions.45 the court would have to be satisfied that the minor understood the nature, purpose and likely consequences of undergoing or not undergoing the procedure, although such issues would be a question of fact, and would often depend on the maturity and developmental capacity of the young person.46 once a minor has demonstrated the necessary level of capacity required of them, any consent to medical treatment will be legally effective despite any parental objections to such medical intervention. in the context of minors whose parents are jehovah’s witnesses but who themselves do not believe or adhere to such religious views, the law allows “gillick” competent minors to consent to a blood transfusion even if their parents do not consider such treatment to be correct or proper. the doctor would be able to proceed without the risk of litigation from any disapproving parents or relatives. 47 when a minor wishes to refuse medical treatment, all minors including 16 and 17-year-olds must fulfil the test of legal competence expected of children under 16; namely, they must have or achieve “gillick” competence. however, many of the cases dealing with the issue of “gillick” competence within this category have required a very high level of understanding and appreciation of the consequences of the decision made when life is at risk. 41 eg see the discussion by staughton lj in re r (a minor) (wardship: consent to treatment) [1991] 3 wlr 592 at 604. 42 re w (a minor)(medical treatment: court’s jurisdiction) [1992] 3 wlr 758. 43 ibid at 776. 44 gillick v west norfolk and wisbech aha [1985] 3 all er 402. 45 ibid at 423. 46 ibid at 411 per lord fraser. 47 ibid at 423. jehovah’s witnesses – medical care, minors and the religious rights 228 jehovah’s witnesses minors – self determination this has been particularly evident when the courts have had to confront cases involving young people who are conscientious jehovah’s witnesses. in re e,48 which concerned a boy of 15 ¾ who suffered from leukaemia, the medical treatment advised by the hospital authority involved administering blood products offering a predicted full remission rate of 80-90 per cent. e, a jehovah’s witness, refused such treatment. in these circumstances, ward j addressed what he felt to be the necessary level of understanding in order for “gillick” competence to be established. he was impressed by the obvious intelligence of e and recognised that e was of sufficient intelligence to make decisions about his own well-being, nonetheless, the judge still found that he could not be classed as a “gillick” competent minor and as such his veto of treatment could not be legally binding.49 ward j considered e possessed: “no realisation [by e] of the full implications which lie before him as to the process of dying. he may have some concept of the fact that he will die, but as to the manner of his death and to the extent of his and his family’s suffering i find he has not the ability to turn his mind to it nor the will to do so.”50 ward j suggested that in later years, e could be likely to “suffer some diminution in his convictions.”51 ward j was to be proved wrong. e maintained his religious convictions throughout his life and on reaching the age of majority, refused all blood-based treatment and subsequently died.52 in re s, 53 the minor in question was 15½-years-old and had a potentially life-threatening form of thalassaemia that had been treated from birth using blood products, something that the minor wished to stop. johnson j was full of praise for s, but he concluded that: “...whilst as she gave evidence i was so very strongly impressed by her integrity and her commitment, i believe they were the integrity and commitment of a child and not of 48 re e (a minor) (wardship: medical treatment) [1993] 1 flr 386. 49 ibid at 224. 50 ibid at 224. 51 ibid at 226. 52 revealed by johnson j in re s (a minor) (consent to medical treatment) [1994] 2 flr 1065 at 1075. 53 ibid. the denning law journal 229 somebody who was competent to make a decision that she tells me she has made.”54 the minor was held to not be “gillick” competent on the basis of her emotional immaturity and the fact that she was “very much ...a child.” johnson j placed reliance on ward j’s judgement in re e, concurring with his views that a sufficient level of understanding about death is necessary, concluding that: “an understanding that she will die is not enough. for her decision to carry weight she should have a greater understanding of the manner of the death and pain and the distress.”55 in re l56 a 14-year-old refused a blood transfusion. bloodless surgery was not viewed as possible and the minor was likely to undergo a “horrible” death without the necessary surgery being performed. the refusal of such medical treatment manifested itself both in the anticipatory form of an ‘advanced medical directive’ prohibiting the use of blood for medical treatment in all circumstances, signed by the minor, as well as a clear refusal of consent given to the surgeon by the minor after the accident. throughout the judgement, sir stephen brown, p, acknowledged that such religious beliefs were strongly and sincerely held and also accepted that l was “mature for her age.” however, l was held not to have the necessary competence under the “gillick” test. the basis for such a conclusion was the fact that l’s view “did not in fact lend itself in her mind to a discussion.”57 sir stephen brown commented that she had not been told or made aware of all the grave consequences relating to the manner of her death that would occur. as such, her lack of understanding of the way that she would die effectively vitiated her ability to be competently able to give such a refusal.58 the reasoning used by the judges in these cases to rebut a finding of “gillick” competence has been criticized. in re e, ward j concluded that the minor was unable to give sufficient thought to the concept and process of dying, although such an exceptionally comprehensive understanding of the dying process and death is unlikely to be found in a sick patient who has achieved majority status. similarly, the level of understanding in both re s and re l would not be legally required by an adult looking to exercise their 54 ibid. 55 ibid at 1073. 56 re l (medical treatment: gillick competency) [1998] 2 flr 810. 57 ibid at 812a. 58 ibid at 812g. jehovah’s witnesses – medical care, minors and the religious rights 230 autonomy in this situation. such an individual would merely have to satisfy the three-stage test in re c, something it can be strongly argued that all three conscientious minors would have done. an understanding of the nature of the pain that may follow refusal, or the manner of death, or the reaction of family members would not be required. this is highly significant in the context of minors that are jehovah’s witnesses as the practical effect of such a stance is that it will be almost impossible to hold that such minors are “gillick” competent. one commentator noted that “case law establishes far less stringent requirements when assessing an adult patient’s competence to refuse treatment [than a child]. these requirements are difficult to justify on logical grounds to the teenagers themselves.”59 in re s, johnson j also used in his reasoning the fact that s was hopeful of some kind of miracle as a reason to conclude that she lacked the necessary level of legal competence. it was suggested that the hope that s had that she might not actually die limited her understanding of the severity of the situation. however, there was never any suggestion that s had a mental condition causing a misperception of reality, which, if that had been the case, would have rebutted any adult’s presumption of competence. her reasoning was not distorted; she simply hoped for a miracle that would relieve her of death. kennedy and grubb notes that many terminally ill patients hope for a miracle cure even when their doctors make clear that they are going to die.60 the fact that the patient perceives their chances of survival differently from the doctor should not be used against a patient to conclude that they are incompetent. surely the preferable view is that such a hope is the product of an individual’s belief system, in s’s case motivated by the strong religious background with which she was associated. in re l, sir stephen brown seemed to hold against the minor the fact that she did not consider her religious views to be negotiable. instead of viewing this as a positive indication of l’s strength of feeling on the matter, he attributed this view to the fact that she was a child with a largely sheltered upbringing which limited her understanding. her lack of experience of life was said to make the minor unable to formulate a competent opinion. however, the judge acknowledged how deeply held and sincere l’s religious convictions were, and the minor’s anticipatory refusal was clear evidence reflecting her most recent views that she did not want blood in relation to medical care in any circumstances. is it likely then that if l had been an 18year-old her additional life experience would have resulted in anything but the same conscientious refusal? 59 fortin j children’s rights and the developing law (1998), pp 108-109. 60 kennedy i and grubb a medical law, (butterworths 3rd edition 2000) p 650. the denning law journal 231 even if this latter point cannot be definitively concluded either way, sir stephen brown’s reasoning, that l could not be sufficiently competent on the basis that she had not been made aware of the actual manner of her death, does not adequately protect the patient’s interests. the minor was unaware of such information because the doctor felt that such disclosure was inappropriate. although the intentions of the doctor may have been honourable in this regard, such a fact should hardly be used against the minor to deprive her of the opportunity of establishing legal competency. it is the responsibility of the practicing physician to provide the patient with all the vital information that will impact on the decision-making process.61 the consent or refusal of the patient will then be suitably informed. the patient’s lack of information could have been remedied before the case came to court. the cynical though persuasive view of some commentators is that doctors might deliberately vitiate refusal of consent by withholding information.62 how can negligence on the part of the doctor in withholding vital information from l be used by the judiciary as justification for disregarding the minor’s autonomy? the decisions of jehovah’s witness teenagers have wrongly been classed as incompetent to provide justification for disregarding beliefs that are sincere and heartfelt, and wholly defensible. to manipulate the legal concept of competence so that more is expected of minors than adults in such a serious context is totally inappropriate, notes kennedy and grubb.63 other critics go as far as suggesting that such an approach amounts to positive discrimination, and cannot be reconciled with article 14 of the human rights act 1998, due to the way that it endorses age based discrimination.64 jehovah’s witnesses minors – their “best interests” whilst all these judgements have concluded that the youths have been incompetent when assessing their decision-making capacity, the case law can be seen to endorse the view that the issue of competence is not the most important consideration to the judiciary. ward j in re e stated that whether the minor was “gillick” competent or not was not in his opinion the key issue. “whether or not he is of sufficient understanding to have given consent or to 61 the need for proper consultation with the patient was emphasized in st. george’s healthcare nhs trust v s; r v louise collins et al, ex parte s [1998] 2 flr 728. 62 mason g k & mccall smith a, law and medical ethics, (butterworths 4th edition 1994); supra note 19 p 616. 63 kennedy i and grubb a, medical law, (butterworths 3rd edition 2000) p 650. 64 wicks e the right to refuse medical treatment under the european convention on human rights, medical law review, (2001; 9) p 17-40. http://www.ingentaconnect.com/content/external-references?article=0967-0742(2001)0l.17[aid=7851757] jehovah’s witnesses – medical care, minors and the religious rights 232 withhold consent is not the issue for me.”65 the primary concern in ward j’s eyes, endorsing the observations of lord hailsham in re b,66 was the welfare of the child from an objective viewpoint. the court would do all it could to stop the child from damaging himself. ward j had strong views about what the obligations of the court were in this regard: “there is compelling and overwhelming force in the submission of the official solicitor that this court, exercising its prerogative of protection, should be very slow to allow a child to martyr himself.”67 the jurisdiction of the high court was comprehensively discussed in two court of appeal cases considering the right of a minor to veto recommended medical treatment.68 instead of focusing on the concept of self-determination, these cases instead viewed the “child’s own best interests, objectively considered”69 as the key consideration. this approach was exemplified by nolan lj’s comments that: “an individual who has attained the age of 18 is free to do with his life what he wishes, but it is the duty of the court to ensure so far as it can that children survive to attain that age.”70 such a viewpoint was echoed in re r, where lord donaldson quoted the words of lord upjohn that the duty of the court was to “act as the judicial reasonable parent.”71 however, he then clarified that the court’s powers extend beyond those of a parent, or a competent minor, when evaluating when to give consent to medical treatment. the court had a duty to exercise its powers in the interests of the children, reflecting the reasonable standards in society at the time about how children should be brought up. in re r such reasoning was used to justify the court exercising its jurisdiction to override the wishes of a minor who had refused anti-psychotic medication. it was reinforced that even if a decision regarding medical treatment was made by a “gillick” competent minor, the jurisdiction of the court could still be exercised to override such a decision. the “best interests” approach that the judiciary have taken to such cases was evident again in re w, which concerned the refusal of treatment by a troubled minor suffering from anorexia nervosa. balcombe lj said that the question of when the courts should override the wishes of a minor refusing medical treatment should be looked at on an incremental basis as a matter of fact. he concluded: “what i do stress is that the judge should approach the exercise of discretion with a 65 re e (a minor) (wardship: medical treatment) [1993] 1 flr 386 at 226. 66 re b (a minor) (wardship: sterilisation) (1987) 2 bmlr 126 at 133. 67 re e (a minor) (wardship: medical treatment) [1993] 1 flr 386 68re r (a minor) (wardship: consent to treatment) [1991] 3 wlr 592; re w (a minor) (medical treatment: court’s jurisdiction) [1992] 3 wlr 758. 69 ibid at 776 per balcombe lj. 70 ibid at 781. 71 re r (a minor) (wardship: consent to treatment) [1991] 3 wlr 592 at 601-2. the denning law journal 233 predilection to give effect to the child’s wishes on the basis that prima facie that will be in his or her best interests.”72 such a position illustrates the way that the judiciary is willing to respect the decision-making capacity of a minor up to the point where it is felt that the minor is in danger of causing harm to themselves. at this point, although the wishes of the minor are not totally disregarded, they are overridden as the welfare of the child is deemed to be paramount. the practical impact of the common law position for conscientious minors who are jehovah’s witnesses was summarised by sir stephen brown in re l: “it is also my view… that it would be the appropriate order to make even if i were not justified in coming to the conclusion that she was not so called ‘gillick competent.’ this is an extreme case and her position is grave indeed. it is vital that she should receive this treatment.”73 although such judgements suggest that an assessment of the minor’s capacity is a key consideration in deciding whether the refusal of treatment can be binding, satisfying the test of competency will make no difference to whether the autonomy of the minor is to be respected. refusal of treatment will be overridden if it is felt that this is in the best interests of the minor when objectively considered. whether the minor sufficiently understands the decision they are making ultimately has no practical value whatsoever. such an approach is unsatisfactory because it displays a total unwillingness on the part of the courts to treat the competent minor in the same way as the competent adult, on the basis that age should be considered above all else for decision-making purposes. lowe and juss comment that “in the final analysis, a child is still only a child.”74 the possibility that an autonomous minor could make decisions that risk their health or, possibly, even their life needs to be placed in a societal context. a 16-year-old is legally entitled to drive a moped or a car at 17.75 similarly, the law allows a 16-year-old to buy cigarettes or fireworks.76 government legislation expressly allows minors to exercise selfdetermination even if the consequences of such actions may be serious harm. parents are not afforded a right to veto such activities and the judiciary is given no opportunity to objectively consider the child’s best interests. 72 ibid at 776. 73 re l (medical treatment: gillick competency) [1998] 2 flr 810 at 813. 74 lowe n and juss s ‘medical treatment – pragmatism and the search for principle,’ medical law review, (1993) p 865-871. 75 motor vehicle (driving licences) regulations 1999. 76 children and young persons act 1933; explosives act 1875 s 31. jehovah’s witnesses – medical care, minors and the religious rights 234 similarly, children from 14 or even younger can be made criminally culpable for their actions, illustrating that their decisions can carry with them legal responsibility.77 against such a background, can it really be justifiable to overrule a competent child who wants to exercise autonomy in relation to his healthcare? the criticism of adopting such an approach is that minors who are jehovah’s witnesses who fully understand the implications of vetoing blood based medical treatment and the possible consequences of such a refusal, will never have such conscientious views respected. their religious stance will always be undermined, due to such a belief system not being the recognised norm within society. can such paternalistic intervention really be argued to represent the best interests of the minor? it is suggested that, although no one doubts the good intentions of the judiciary in giving primacy to the preservation of life in such cases, such an outcome-based approach is illadvised when applied to cases involving jehovah’s witnesses. after all, although in the case of re e the decision of the court to prescribe bloodbased treatment gave the minor two more years of life, the fact that he immediately refused blood when attaining the age of majority suggests that the minor still had ultimate regard for his religious beliefs rather than his life being preserved at all costs. it is arguable that prolonging his life in such circumstances when his views were clear and unambiguous simply added to his level of emotional distress and deprived him of his dignity. this point has not gone unnoticed within the medical community, with the association of anaesthetists commenting: “administration of blood to a competent patient against their will and in conflict with their genuinely held beliefs has been likened by the witnesses to rape. it may have as deep a psychological effect as forceful sexual interference.”78 against the backdrop of such psychological anguish for the minor, can it really be said that the outcome-based approach used to justify judicial paternalism is truly in their best interests. e, s and l all made their refusals clear either using an ‘advance medical directive’ or by notifying the doctors of their stance prior to an emergency situation. refusal of blood was not merely based on a whim or the emotion of the situation, but was due to deeply rooted religious objections. surely the lack of respect for a minor’s autonomy in such circumstances is likely to be deeply traumatic for the youth and leave them with a profound 77 crime and disorder act 1998. 78 management of anaesthesia for jehovah’s witnesses, association of anaesthetists of great britain and ireland, (march 1999) p 3 pp 2,4. the denning law journal 235 sense that they have been violated. can it really be in the minor’s best interests to pay no respect to their religious views in such an instance? even johnson j acknowledged in re p79 that “treatment which is imposed against the wishes of the patient is surely to be avoided wherever possible.” this is all the more true when dealing with jehovah’s witnesses who satisfy the legal test of capacity. the gillick decision was thought to herald a new legal dawn granting competent minors a right to self-determination with respect to all medical decisions. however, subsequent case law has demonstrated that the aim is to protect a doctor from possible litigious claims.80 the representation by lord donaldson of consent either as a “legal flak jacket”81 or as “merely a key which unlocks a door”82 can be criticized for not protecting the principle of self-determination by focusing too heavily on the avoidance of punishment. the british medical association has taken a position that clearly supports and respects minors who have the capacity to make medical decisions for themselves: “the tendency to regard mature young people as autonomous in their own right is a very welcome trend which should not be undermined… respect for autonomy must be commensurate with the ability of the individual to decide… minors who are clearly competent to agree to treatment must be acknowledged as also having an option to refuse treatment if they understand the implications of doing so.”83 the medical profession in the uk clearly recognizes that a competent minor has the right to self-determination. there can be no justification for the courts to paternalistically disregard such a right. 79 re p(a minor) [2003] ewhc 2327 (fam) at 10. 80 douglas g the retreat from gillick, medical law review,(1992) 55 mlr 569. 81 re w (a minor) (medical treatment: court’s jurisdiction) [1992] 3 wlr 758. at 767. 82 re r (a minor) (wardship: consent to treatment) [1991] 3 wlr 592 at 599. 83 medical ethics today: its practice and philosophy, (british medical association, 1993) pp 1:3.2; 3:2.1. jehovah’s witnesses – medical care, minors and the religious rights 236 the incompetent jehovah’s witness minor and parental consent parental autonomy when a child is clearly incapable of looking after themselves because of tender age jehovah’s witnesses believe that the appropriate decision-makers should be the child’s parents.84 the family unit has always been regarded within society as the appropriate place to protect the interests of the child, a point highlighted in the united nations convention on the rights of the child: “[the family is] the natural environment for the growth and well-being of all its members and particularly children, and should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community.”85 lord fraser acknowledged such a principle in gillick,86 when he commented that “nobody doubts, certainly i do not doubt, that in the overwhelming majority of cases the best judges of a child’s welfare are his or her parents.” when exercising such a choice, the fact that a parent takes a medical decision on the basis of religiously held views with which the medics disagree should not legitimate transferring the power to make that decision away from parents to an officer of the state. such a principle was upheld in the united states supreme court.87 julius landworth, md, noted: “parents have a right to select among medically appropriate options based on their individualised assessment of the relative burdens and benefits of the proposed intervention from the perspective of personal and family values.”88 84family care and medical management for jehovah’s witnesses, (watchtower bible and tract society, inc. 2002) family p 3. 85 convention on the rights of the child, adopted by the general assembly of the united nations on 20th november 1989, preamble. 86 gillick v west norfolk and wisbech area health authority, [1985] 3 all er 402 at 412. 87 parham v j r 442 us 584, 99 s ct 2493,2504 (1979). 88 landwirth j ‘ethical issues in paediatric and neonatal resusitation,’ annals of emergency medicine’,vol 22, no 2 (part 2), february 1993, pp 236-41 at 238. the denning law journal 237 ii. the question of medical necessity when the doctor considers the minor’s health to be in serious danger unless they receive an immediate blood transfusion the situation is not so straight forward and whether the situation is one of medical necessity, or not, may still be a matter of opinion. the notes editors writing in the minnesota law review commented: “the issue of compulsory treatment should only be reached after the diagnosis is sound. in determining whether the judgement is sound, the opinion of the doctors seeking authorisation should be carefully scrutinized in view of their involvement.”89 the honourable madame justice beverley mclachlin of the supreme court of canada, called for caution when “weighing whether the facts show a likelihood of severe physical or emotional harm to the child unless state intervention is permitted.”90 dr. richard spence speaking for physicians unwilling to treat jehovah’s witnesses in accordance with their wishes has said: “if you can’t transfuse, transfer. [this] helps the patient to live and the transferring physicians to live with themselves.”91 once all reasonable steps have been taken to explore medical alternatives to blood and the situation is truly life-threatening, parents that are jehovah’s witnesses will respect the decisions of the courts if the judge in question feels compelled by the circumstances to issue an order permitting the use of blood. to support and assist patients who are jehovah’s witnesses, the hospital liaison committee network has been designed to act as a liaison between the doctor and the adult patient, or the parents and the minor, at the patient’s request.92 jehovah’s 89 notes editors edwin c carpenter, lawrence a lokken and thomas d tews ‘compulsory medical treatment: the state’s interest re-evaluated’ 51 minnesota law review 293 at 304 (1966). 90 honourable madame justice b mclachlin, ‘who owns our kids? education, health and religion in a multicultural society,’ address to the canadian institute for advanced legal studies, cambridge lectures, july 1991. 91 spence r k ‘the status of bloodless surgery,’ transfusion medicine reviews, vol v, no 4, october 1991, pp 274-286 at 285. 92such committees are made up of qualified professionals who are able to help hospitals to locate doctors who are willing to treat patients using non-blood medical management. in the uk, the hospital liaison committees have a database of around 5000 doctors who have submitted that they would be willing to be available for consultation or a transfer, in order to treat jehovah’s witnesses using non-blood medical management. i am grateful for an interview with paul wade, head of hospital information services (britain) for jehovah’s witnesses, march 2005. jehovah’s witnesses – medical care, minors and the religious rights 238 witness families with the help of the hospital liaison committees seek a solution that can give the best medical care to their children whilst accommodating the sincere religious beliefs of the parents. in re s 93 a 4 ½ year old child suffered from t-cell leukaemia with a high risk of death. the parents of s were dedicated jehovah’s witnesses who conscientiously refused to the intensive chemotherapy that was able to treat the disease since it included the transfusion of blood as an integral part of the treatment. the local authority sought an order from the court permitting the use of blood transfusions. thorpe j commented that the parenting of s had always been above criticism, and that a close accord had been established between the hospital and parents on diagnosis.94 the judge also remarked on how impressed he was with the emotional control and sincerity with which the father of s stated his convictions, concluding that “there was no impression of the bigot, of the closed mind, or of unreasonable obstinacy.”95 thorpe j considered the appropriate legal test to be the “best interests” of the child. under these circumstances, the duty of the court was felt to be to do all that could be done to offer s a chance of a medical remedy and provide the appropriate consent for such medical treatment endorsing the use of blood. the judge also made clear that the judicial act of taking responsibility for consent away from the parents of s would allow the parents to absolve their conscience of responsibility for the child being treated using blood.96 the family division was again asked to consider the question of whether the court should override beliefs of two of jehovah’s witnesses, in order to treat their incompetent child using blood in re o.97 this case concerned a baby that had been born 12 weeks prematurely and consequently suffered from respiratory distress syndrome. the local authority made an application for an emergency protection order that would allow a blood transfusion to be given without the consent of the parents in an emergency situation. furthermore, they applied for a care order on the basis that there was a further and continuing need for medical treatment involving blood transfusions. johnson j recognised that the dilemma for the parents was “awesome”, due to the fact that they were “deeply committed and loving parents” who did not want their child to die.98 however, the judge also felt that, whilst endeavouring to pay every respect to the religious principles underlying the family’s decision, intervention was necessary in this instance to protect the welfare of the child, quoting from 93 re s (a minor)(medical treatment) [1993] 11 bmlr 105. 94 ibid at 106. 95 ibid at 108. 96 ibid at 109. 97 re o (a minor)(medical treatment) [1993] 2 flr 149 (fam). 98 ibid at 151. the denning law journal 239 lord upjohn that he must act “as the judicial reasonable parent.”99 on this basis, he would give directions to administer blood when the medical need arose. in re r100 a 10-month-old baby suffering from lymphoblastic leukaemia, needed a blood transfusion, r’s parents, as jehovah’s witnesses, withheld consent. a specific issue order was applied for. booth j considered such an order, ordering the treatment of the child with blood, to be appropriate on the basis that “the welfare of the little girl is the court’s paramount consideration.”101 it was agreed amongst all parties that the specific issue order, although allowing blood to be administered in an imminently lifethreatening situation without the consent of the parents, should require the doctors to consult with the parents in any situation less than imminently lifethreatening. such consultation would allow all alternative forms of non-blood medical management to be considered. if the conclusion of the doctor after such consultation was that there was no reasonable alternative to the administration of blood, then they could act in this way without the parents consent. such cases illustrate the fact that the welfare of the child will always be viewed as the key consideration, and this is to be assessed on the basis of what the courts consider to be the outcome of parental refusal to treatment. this approach is perhaps not surprising in relation to incompetent minors when one bears in mind that the judiciary have decided cases involving “gillick” competent minors in the same way. the approach of the courts has given a high level of respect to parental autonomy, whilst recognizing that in certain circumstances there are criteria that the proxy cannot have regard to when coming to a decision for the incompetent patient. these decisions do not endorse a blanket-like overruling of parental autonomy when the court does not agree with a decision based on religious beliefs. the courts were not seeking to disregard the right of the parents to make a choice in all cases. rather, the protective powers of the court would only be exercised in very particular circumstances. it was felt that an order to give blood should be issued only when there was no reasonable alternative to using blood to treat the serious condition of the child. the uk courts have not had to provide a judgement on whether they would override the wishes of jehovah’s witnesses who wished their children to be treated using a blood-free form of treatment that had a lower chance of success to a blood-based alternative. however, it is likely from the obiter dicta of the judges that deference would be given by the courts to parental autonomy as long as there was a reasonable alternative to using blood. this 99 ibid at 152. 100 re r (a minor) (blood transfusion) [1993] 2 flr 757 (fam). 101 ibid at 759. jehovah’s witnesses – medical care, minors and the religious rights 240 conclusion can be made on the basis that booth j. phrased the specific issue order in such a way to make sure that other options were considered before blood products were administered.102 the order was only to have legal force if such an alternative did not exist. blood transfusions were not to be administered simply as a matter of routine when they were not medically necessary, a point clarified in re o. 103 thorpe j also intimated that the legal position may well be different if there was a choice of procedures, one of which was medically more risky but not objected to by the parents. he did not make a definitive statement on such a point, but the fact that there was only one available form of treatment seemed to be the determining factor in reaching the conclusion that judicial intervention was justified. although it would be dependant on the facts of the particular case, it is likely that a decision by one of jehovah’s witnesses to opt for treatment for their child that was medically riskier, but blood free, would be within the zone of decisionmaking afforded to parents as long as the treatment has not been totally rejected by all responsible medical authority. such a conclusion would echo the approach that has been adopted in foreign jurisdictions and is felt to be justified because, as noted by kennedy and grubb, there is no real basis for the court to claim that they are a better parent than those who are prima facie entitled to form such a judgement.104 the need for the parents to be heard and remain part of the decisionmaking process in cases where doctors seek an order to administer blood, guided the reasoning in both re o and re s. the basic procedural right of giving parents formal notice of such an order and a suitable hearing was overlooked in re o, where an emergency protection order was made without necessary notice to the parents. johnson j commented: “whatever the circumstances, efforts should in my view be made to achieve an inter partes hearing however unusual the particular arrangements may need to be.”105 booth j concurred with such a view, noting that “the most strenuous efforts should always be made to achieve an inter partes hearing. such issues should be determined by a high court judge.”106 similarly, in the new zealand case of re cl the court recognised that there should be a proper opportunity for everyone with a legitimate interest to be heard. justice robertson stated: 102 ibid at 760. 103 ibid at 761. 104 kennedy i and grubb a, medical law, (butterworths 3rd edition, 2000) p 795. 105 re o (a minor)(medical treatment) [1993] 2 flr 149 (fam) at 151. 106 re s (a minor)(medical treatment) (1993) 11 bmlr 105. the denning law journal 241 “whenever there is the potential for an interference with parental rights, then to the extent that it is in all the circumstances reasonable, the parents’ views should be heard and weighed in the decision making process.”107 the case law in both the high court of australia108 and the divisional court of ontario, canada confirms this as the correct process, with the order of a blood transfusion without a fair hearing in canada deemed to be a “clear violation of the fundamental principles of natural justice.”109 once legal steps have been taken seeking an order to administer blood, reasonable notification should be given to the parents. this will allow the court to come to an informed decision about what actions are necessary to protect the welfare of the child and demonstrate that parental autonomy will not be disregarded without proper consideration. when such actions are followed a fair balance is struck between the competing interests of jehovah’s witnesses faced with an impossible moral dilemma and the judiciary who must ensure that the welfare of incompetent patients is not compromised. the role of the law in this regard is perhaps best summed up by the words of johnson j. in re o: “when the state, in the form here of the legal system, is asked to override the views of parents. . . then the system should ensure that so far as judicial ingenuity can ensure, justice is seen, and felt, to be done.”110 the way forward i. lessons from abroad: the american approach the approach of the courts in the united states to this issue has endeavoured to pay more than mere lip service to the decision-making capacity of conscientious minors. the law in the united states includes the firmly established doctrine of the “mature minor,” the american equivalent to a “gillick” competent minor. since the late 1980’s such a doctrine has been applied to minors who are jehovah’s witnesses. re e.g111 is a good example, 107 re cl [1994] nzflr 352 at 355 (hc new zealand). 108 j v lieschke (1987) 11 fam lr. 109 children’s aid society of metropolitan toronto v f(m) (1993), 99 dlr (4th) 378 at 379 (ont div ct). 110 re o (a minor)(medical treatment) [1993] 2 flr 149 (fam) at 151. 111 re eg 549 ne 2d 322 (ill 1989). jehovah’s witnesses – medical care, minors and the religious rights 242 where the supreme court of illinois decided that a 17 year old minor had a sufficient level of maturity and understanding to refuse blood based treatment. the judgement commented: “age is not an impenetrable barrier that magically precludes a minor from possessing or exercising certain rights normally associated with adulthood.”112 the basic prerequisite in america for the state exercising the inherent jurisdiction of the high court, also known as parens patriae authority, on behalf of any individual, is that: “the individual himself must be incapable of making a competent decision concerning treatment on his own. otherwise, the very justification for the state’s purported exercise of its parens patriae power its citizen’s inability to care for himself would be missing.”113 the approach in the united states endorses the view that competent persons with decision-making capacity, even if they are minors, do not need the state to tell them what is the “best” or “right” thing for them, according to the value judgement of a doctor or a judge or a social institution. the “best interests” approach commonly adopted within the uk has been heavily criticized due the lack of real guidance that it gives a judge. the consequence of applying such a vague standard is thought to be that “judges…may find it difficult to avoid decisions resting on subjective values.”114 the us approach has consistently opposed the position evident in re estates of brooks: “what has happened here involves a judicial attempt to decide what course of action is best for a particular individual, notwithstanding that individual’s contrary views based upon religious convictions.”115 it is submitted that the american legal model to competence not only recognizes that a competent minor should have the right to self-determination but also actively seeks to give the law some practical significance for the 112 ibid at 327-328. see also, in re rena 705 ne 2d 1155 (mass ct app 1999); in re swan, 569 a 2d 1202 (me 1990). 113 rogers v okin, 634 f 2d 650, 657 (1st cir 1980). 114 smith v organization of foster families for equality and reform, 431 us 816, 835 n 36 (1977). 115 re estates of brooks, 205 ne 2d 435, 442 (ill 1965). the denning law journal 243 conscientious jehovah’s witness. the outcome based approach within the uk that undermines adolescent autonomy when life is at risk in the perceived “best interests” of the minor, is no justification for positive state intrusion within this model. the state has no lawful interest in protecting competent individuals capable of independently protecting their own interests. ii. lessons from abroad: the canadian approach the case of re ldk116 concerned a 12-year-old with life-threatening leukaemia who refused blood transfusions as a form of treatment. when such treatment was forcibly administered without her consent, this was found to violate her rights under the canadian charter. an application for further blood-based treatment was dismissed by the judge on the basis that this offended her religious beliefs and the fact that she had “wisdom and maturity well beyond her years.”117 this approach was followed in re ay118 and walker,119 both cases conferring the right of self-determination on youths who refused blood transfusions. they were deemed to be mature young adults “capable of understanding the nature and consequences of medical treatment.”120 the position in relation to self-determination and competent minors is still evolving121 but such cases illustrate that certain judges have found no reason to justify paternalism when faced with refusal by mature minors who are jehovah’s witnesses. iii. an alternative uk legal model if a minor has the sufficient understanding and maturity to make an informed, competent decision, the only difference between the minor and an adult in the same situation is that the minor has not yet attained the chronological age of majority. a distinction based on nothing more than the fortune of majority status should not negate a competent minor’s right to determine what happens to his or her body within a principled legal system. 116 re ldk; 1st november 1985 48 rfl (2d) 164 (ontario provincial court). 117 ibid at 168, 169, 171 per main prov j. 118 re ay (6th february 1994) 111 nfld & peir 348 apr 91 (supreme court of newfoundland) 119 walker (litigation guardian of) v region 2 hospital corp. (june 23rd 1994) 4 rfl (4th) 321 (new brunswick court of appeal). 120 ibid at 29,30. 121 compare bh (next friend of) v alberta, (court of queen’s bench of alberta), 2002 abqb 371. jehovah’s witnesses – medical care, minors and the religious rights 244 a more appropriate model could be for the medical profession to start out from the position that all patients are presumed to be competent, irrespective of age, but that presumption can be rebutted if the patient is unable to satisfy a codified test of competency based on the three stages outlined in re c. this test has been carried over into the proposals in the draft mental incapacity bill (2003), with the added provision that a patient should be “able to communicate the decision (whether by talking, using sign language or any other means).”122 by treating all patients in this way, it would create a legal standard of competency that was impartial and was based on the patient’s decisionmaking capacity as opposed to any arbitrary age limit imposed by the state. such a model would bring to an end the unsatisfactory situation in the uk where a minor may have to establish a significantly higher level of understanding regarding the consequences of a particular decision than an adult patient with the same medical predicament. some critics have suggested that a determination of every patient’s individual ability for competence would be time consuming and impractical, elliston notes that such an objection is not sustainable. he commented that: “while setting an arbitrary age for such reasons as ability to vote is acceptable, since the administrative difficulties involved in questioning every citizen in order to establish their competence for enfranchisement would be practically insurmountable, the same is not true where decisions about the management of the health of an individual are concerned. here the individual’s ability to make a decision can be scrutinized…”123 such a model would reflect the uk law’s current attitude evident in nhs trust airedale v bland that “the principle of sanctity of human life must yield to the principle of self-determination.”124 the difference would be that this legal position would apply to all competent patients, not just those over 18. as such, it is likely that under this new approach, the conscientious refusal of blood by e, s and l would have been respected if regarded as the decision of a competent patient. 122 clause 2 (1)(d). 123 elliston s ‘if you know what’s good for you…’: a consideration of refusal of consent to medical treatment by children, contemporary issues in law, medicine and ethics, (dartmouth publishing co, 1996) p 29-55. 124 airedale nhs trust v bland [1993] 1 all er at 866 per lord goff of chieveley. the denning law journal 245 it is important to note that all decisions relating to medical care would have to be scrutinised to make sure that the patient was free from any undue influence and not compromised by pressure from family or friends. the common law already establishes that where a competent patient’s decision is based on the undue influence of a third party, however well intentioned, such a decision will not be based on the independent understanding of that person and will be disregarded.125 critics may suggest that such an approach effectively signs a death warrant for unstable minors like those in the cases of re r and re w. however, when analysing the position of such minors, it is important to recognise what the legal position would have been for these ones had they been judged against the re c criteria. there is the definite possibility that r would have been held not to satisfy the second requirement of the test in re c, that she believed the treatment information given to her. r was diagnosed with a psychotic disorder but nevertheless sought to refuse the anti-psychotic medication prescribed as necessary to help such a condition. a veto of medication in the light of such circumstances makes it highly debatable whether r truly believed that she actually had a mental condition that required treatment. similarly, in re w, although w was not directly suffering from a mental illness, medical evidence makes it clear that one of the characteristics of anorexia nervosa is that it is capable of destroying the sufferer’s ability to make an informed choice. also, lord donaldson noted that one of its clinical manifestations was “a firm wish not to be cured, or at least not to be cured until the sufferer wishes to kill herself.”126 against such a background, it is easy to conclude that w’s ability to satisfy the third limb of re c, weighing the information in the balance so as to arrive at a clear choice, could be compromised. although neither case demonstrates a complete misperception of reality which would automatically rebut the presumption of competence in an adult, it is suggested that the underlying mental instability of both w and r could result in them not being able to demonstrate that they had arrived at a clear choice, being denied competency on these grounds even if they were adults. with respect to the patient who is unconscious but has made their wishes clear through the use of an anticipatory form of refusal such an ‘advance medical directive,’ the law should respect the wishes of the patient when it can be established that the patient was competent at the time that such wishes were made, and all the other criteria to make such a directive valid are present. the problem that arises is where the unconscious patient has no 125 re t (adult: refusal of medical treatment) [1992] 4 all er 649. 126 re w (a minor)(medical treatment: court’s jurisdiction) [1992] 3 wlr 758 at 761e. jehovah’s witnesses – medical care, minors and the religious rights 246 opportunity to satisfy the re c test, and the evidence is ambiguous as to whether an advance directive reflects the independent wishes of a competent person who understands the significance of the form. for example, a scenario could arise where a 14-year-old unconscious jehovah’s witness was admitted to hospital in a serious condition. although she had an advanced “no blood” directive signed and up to date, how could the doctor be sure that such a stance represented the view of a competent patient free from undue influence? in such a situation, as the decision-making capacity of the patient is in doubt, it is suggested that the most appropriate response would be for the medical practitioner to initially try and do all that they can to preserve life, until it can be ascertained what the minor’s true wishes are. the patient should surely be the one that bears the responsibility of making their wishes clear to the medical profession if they have special circumstances like religious beliefs that they want to impact on their healthcare. one practical suggestion for dealing with this type of situation would be for a patient that wished to make use of an anticipatory form of refusal to have such a directive placed on the medical record that they have with their general practitioner. such a person would be in a position to assess whether their patient satisfied the three stage test in re c and such a refusal was the product of independent thought. if the patient had performed such steps and they were deemed competent, in the case of an emergency situation where they were unconscious, such actions should be given sufficient recognition to entitle the patient’s anticipatory refusal to be respected. many today may consider that a loving god would not object to a worshipper undertaking a form of healthcare involving blood products if it was likely to have a positive effect, possibly even a lifesaving effect, on his or another’s physical health. however, far from martyring themselves, jehovah’s witnesses are exercising their right to determine how they are medically treated, choosing to act in a way that will not contravene what they regard as perpetual commands and expressing their right to hold and manifest their religious belief through the refusal of blood products. article 9(1) of the european convention for the protection of human rights and fundamental freedoms 1950 (as set out in schedule 1 to the human rights act 1998). article 9 asserts: “1. everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are the denning law journal 247 necessary in a democratic society . . . for the protection of the rights and freedoms of others.” for the purposes of right to self-determination, how does one define people in context of kashmir 1 the denning law journal 2013 vol 25 pp 1-17 media reportage of sexual harassment: the (in)credible complainant  keziah judd  and patricia easteal  1. introduction: the mass media and the court of public opinion studies of court and conciliation decisions about credible complainants and legitimate sexual harassment. in determining what is reasonable and indeed in assessing whether behavior was sexual and unwelcome and resulted in humiliation, it is often the complainant‘s identity, history and behaviour that are scrutinised and evaluated by conciliators and judicial officers. 1 youth can enhance credibility if the alleged harasser is older. also, credible victims fight back, report immediately, are consistent in their evidence, are able to particularise and testify either in a nonaggressive and not too ‗smart‘ manner or make an argumentative presentation coupled with confidence. 2 judicial commentary about the complainant‘s relationships, dress and attitudes to sexuality is a chilling echo of catharine mackinnon‘s 1979 observation that sexual harassment was often dismissed as ―trivial, isolated, and ‗personal,‘ or as universal ‗natural‘ or ‗biological‘ behaviours…‖ 3 these findings also confirm the feminist perspective that law must be looked at within the broader cultural context – in this instance in the broader context of beliefs about sexual harm. those beliefs and the broader context  this article appears as chapter 4 in p easteal (ed) justice connections (cambridge scholars publishing 2013). the authors and publisher have given their permission to reprint it here.  phd candidate with the university of canberra, australia  professor, faculty of business, government & law, school of law, university of canberra, australia. 1 see deb tyler and patricia easteal, ‗sexual harassment in the tribunals: the credibility gap‘ (1998) 23 (5) the alternative law journal 211; patricia easteal and keziah judd, ‗‗she said, he said‘ credibility and outcome in sexual harassment‘ (2008) 31(5) women‘s studies international forum 336; patricia easteal and skye saunders, ‗the (un)successful rural workplace sexual harassment complainant.‘ (justice connections symposium, canberra, june 2011). 2 ibid. 3 catharine mackinnon, sexual harassment of working women: a case of sex discrimination (yale university press 1979) 1. media reportage of sexual harassment 2 are both reflected by and contributed to by the media. the media has been described as a shaper of attitudes through its use of narrative techniques: ―stories create a causal chain: this happened because she did that, he responded by doing this. they identify notions of responsibility and blame; they make sense of the chaos of events ‗out there‘, and in doing so steer the audience‘s response towards one view of the world rather than another.‖ 4 in examining how female victims of sexual harassment are portrayed by the media, we must be aware that media reporting may be simplistic, misleading, and overly reliant on clichéd and ‗archetypal characters‘ as ‗ancient as they are inflammatory‘—the seductress, the victimised man, and the man-hating woman. 5 ―the language of the media is limited: ‗feminists‘ are always ‗ideologues‘. ‗women in the workplace‘ invariably ‗threaten the place of men‘. ‗complaints‘ of sexual harassment are constantly ‗on the rise‘. the tone ranges from flattened to melodramatic, often, without that much in between.‖ 6 indeed it has been noted that feminism will always be working ‗against the grain‘ when engaging with the media: ―the forms of feminist theory and practice that most challenge the liberal status quo are the most likely to be misunderstood and/or mistreated by the media because of the media‘s own reliance on a liberal paradigm. this presents a significant challenge for those feminists who attempt to work with or within the commercial media.‖ 7 4 john street, mass media, politics and democracy (palgrave 2001) 4. 5 jenna mead (1997) (ed) ‗introduction – tell it like it is,‘ bodyjamming – sexual harassment, feminism and public life sydney: allen and unwin, at 6. 6 ibid 6. mead‘s term ‗melodramatic‘ refers to classic tabloid journalism, with screaming simplistic headlines, highly emotive language, and a focus on scandal and gossip. while mead herself does not define ‗flattened,‘ we understand the term to refer to media commentary located beyond the front page, offering detailed but dry analysis to those readers who bother to dig for it. 7 donna young, ‗introduction‘ in martha a fineman, martha t mccluskey, feminism, media and the law (oxford university press 1997) 7. the denning law journal 3 much of the critical analysis of the media focuses on the idea of propaganda, with the media responsible for providing messages to subdue the populace, even in ‗enlightened‘ liberal democracies. ―the mass media serve as a system for communicating messages and symbols to the general populace. it is their function to amuse, entertain, and inform, and to inculcate individuals with the values, beliefs, and codes of behaviour that will integrate them into the institutional structures of the larger society.‖ 8 the media constructs a version of ‗reality‘ that favours those in power. continuing in this vein, the media‘s use of clichéd characters can be seen as a shorthand method of reinforcing dominant social values about gender and the law. this use of media shorthand has been described as both political and problematic with television as ‗myopically focused on the foreground of ordinary experience 9 favouring the simple (and indeed the simplistic) at the expense of the complex: it filters out 1) more abstract and conceptual structures or relationships, including systems (which are relationships that interact over time to produce particular results or to maintain a particular balance); 2) causality, particularly remote causal histories and destinies, evolutionary change, and uncertain or incomplete processes of change; 3) context, which is likewise relational and causative; and 4) ambiguity, i.e., uncertainty of meaning, and ambivalence, or uncertainty of value. 10 this tendency for over-simplification, eschewing of context and reliance on broad-brush characterisation can be seen in media reporting of sexual harassment law, together with a love of drama and exaggeration. the latter would fall at the inflammatory, screaming headlines ‗tabloid‘-style coverage of the spectrum in contrast with the with the more thoughtful, detailed yet buried analysis associated with broadsheet articles beyond the front page. 11 in ‗ripples from the first stone,‘ anya poukchanski also identifies a blend of sensationalism and skepticism in the media when reporting sexual 8 edward s herman and noam chomsky, manufacturing consent – the political economy of the mass media (vintage 1994) 1. 9 jeffrey scheuer, the sound bite society – how television helps the right and hurts the left (routledge, 2001) 121. 10 ibid 21-122. 11 mead (n 5). media reportage of sexual harassment 4 harassment cases. she comments, ‗a scandal-happy media armed with the lurid resources of the internet means privacy for victims is almost impossible, and reputation is easily, and enduringly, marred.‘ 12 poukchanski discusses the use of language to undermine the credibility of sexual harassment complainants, with particular attention to the term ‗alleged‘: ―journalists refer to the ‗alleged victim‘, but it is the victim who is doing the alleging, against a person she claims to have committed a crime against her – the alleged assaulter. referring to the ―alleged‖ victim immediately casts the foundation of her claim into doubt; well she might be a victim, or she might be putting the whole thing on.‖ 13 identifying the ties in the following paper we look at the style of writing in the reporting of a selection of australian sexual harassment cases. we contrast broadsheets with tabloid, and the extent to which mead‘s flattened/melodramatic dichotomy applies. we also particularly focus on how those who allege sexual harassment cases are characterised. we analyse the reporting by a sample of australian newspapers of five sexual harassment cases from mid 2010 through 2011. using microfiche archives from the national library of australia and the online database newsbank newspapers australia, we conducted an analysis of selected print media coverage of three new south wales (nsw) based cases—fraser-kirk and david jones, bridgette styles‘ complaint against clayton utz and caroleann britt‘s complaint against patrick stevedores and two victorian matters— susan spiteri‘s complaint against ibm and sallyanne robinson‘s complaint against rivers. for the nsw matters, articles appearing in three major sydney newspapers the broadsheet the sydney morning herald, its weekend tabloid the sun herald and the populist tabloid the daily telegraph were identified. we used articles in daily broadsheet the age, and the tabloids herald sun and sunday herald sun for the cases to be heard in melbourne courts. for each of the five, we looked at the ‗splash‘ period, focusing our attention on the first month of reporting of the case. this period was chosen because at this time the case was ‗fresh‘ in the minds of journalists and readers, and would have had the greatest impact. in the ibm case, we looked at two distinct ‗splash‘ periods – when the case first hit the headlines it was 12 anya poukchanski, ‗ripples from the first stone‘ (2011) the sydney institute quarterly issue 39 10, 12. 13 ibid. the denning law journal 5 announced in the media in april 2011, and when the claim was filed in the federal court in october 2011. having developed a pro forma template, we recorded variables such as how the media portrayed the parties, the behaviour complained of, the relationship between the complainant and alleged harasser, whether the complainant‘s response to harassment was discussed and whether the age of the complainant was mentioned. we also noted and report below relevant ‗grabs‘ that are indicative of sensationalism and/or stereotyping and melodramatic versus flat reporting. after the textual analysis was complete, aside from looking at the aggregate findings, we compared the broadsheet to the tabloid coverage. caveat the generalisability of our findings is limited both by the small sized sample and our focus on reportage in only four australian newspapers. any conclusions must be regarded as preliminary and not necessarily true for other print or visual media or for other types of cases. 2. ‘facts’ of the five cases the facts of the david jones case are well known to australian readers. junior publicist kristy fraser-kirk made a complaint of sexual harassment against former ceo mark mcinnes. in her statement of claim, ms fraser-kirk stated that mr mcinnes engaged in repeated unwelcome conduct of a sexual nature toward her, including telling her that a dessert was like a ―fuck in the mouth‖, placing his hand under her clothing and touching her bra, trying to kiss her on the mouth and repeatedly asking her to accompany him to his home at bondi. 14 ms fraser-kirk also stated that when she reported these incidents to her supervisor at david jones, she was told to say ―no, mark‖ and her complaints were not addressed. 15 some of the alleged harassment took place at work functions which were held away from the workplace or were text messages which were sent to the complainant whilst she was at home, if that matter had proceeded to a hearing, the test for vicarious liability may have failed. in the clayton utz case, bridgette styles complained of harassing behaviour by her colleagues, and described the law firm as a ―hostile place to 14 fraser kirk v david jones & ors (2010) nsd 964/2010 statement of claim <http://resources.news.com.au/files/2010/08/02/1225900/118204-aus-bus-file-djsstatement-pdf.pdf> 3. 15 ibid 4. media reportage of sexual harassment 6 work‖, where managers failed to take action against a facebook group called ―clayton utz workplace relations (sydney) whorebags.‖ 16 ms styles claimed that after her relationship with colleague luis izzo ended, she was harassed by other employees, who ―posted a photo and montage of images of mr izzo with the caption ‗i'm nice to look at‘ near her desk in the firm's workplace relations group.‖ 17 ms styles also complained of sexual comments being made to her by colleagues during work functions, a failure by her employer to investigate her complaint of sexual harassment and victimisation in the workplace following the making of her complaint. 18 in the ibm matter, the complainant susan spiteri alleged harassing behaviour by a former senior manager, which included telling her to ‗―get those boobies out‘ to get sales.‖ 19 ms spiteri‘s complaint also included allegations that this manager made sexual remarks in front of her during christmas events, repeatedly placed his hand on her leg and up her dress at a work function, and engaged in bullying behaviour such as name-calling and phoning her late at night. 20 a herald sun article on the case noted, ―despite complaining to four managers, no action was taken for 18 months, and only after the woman attempted suicide was the perpetrator forced to resign in mid2009.‖ 21 the article then quoted the complainant‘s legal representative siobhan keating, ―ibm's inaction is impossible to understand.‖ 22 in written judgment on an application for interlocutory relief, jessup j commented: ―i should emphasise that the applicant does not allege in her statement of claim that any of those respondents directly engaged in any conduct which would be unlawful under the sex discrimination act. rather, the case against them is that they failed to act to prevent the particular perpetrator from engaging in the conduct which was said to be unlawful on his part.‖ 23 16 louise hall, ‗claims of sexism as young lawyer takes on top firm‘ the sydney morning herald, (sydney 8 june 2011) 3. 17 ibid. 18 styles v clayton utz (no 3) [2011] nswsc 1452 12-17, 21-22, 120 (maccallum j). 19 author not named, ‗woman sues ibm for bullying by boss‘ the age, (melbourne, 21 october 2011) 7. 20 marianne betts, ‗woman sues ibm for $1.1m sex pest legal fight‘ herald sun (melbourne, 15 april 2011) 9. 21 ibid. 22 ibid. 23 spiteri v ibm australia ltd [2011] fca 1318 4 (jessup j). the denning law journal 7 in the rivers case, former executive sallyanne robinson made a civil claim against the company for harassment by its owner and sole director 24 , philip goodman. her statement of claim was reported as including complaints of unwanted sexual advances, unwanted touching of her breasts and bottom, being asked to model the company‘s underwear range, and being addressed as ―honey bun‖ and ―bunny‖. 25 in the patrick stevedores matter, dock worker carole-ann britt complained of a hostile work environment, in which she was surrounded by ―posters of naked women and piles of pornographic magazines and regularly asked about her sex life‖. 26 alleged behaviours included the display of pornography on an overhead projector during a meeting. 27 ms britt said that she made a complaint to the maritime union after a male colleague drove her to a remote location on the port, touched her between the legs and encouraged her to have sex with him. 28 3. fanfare v muted coverage while the david jones (djs) case appeared in the media with considerable fanfare, coverage of the other cases was considerably more muted. during august 2010, the djs matter received front page coverage in the sydney morning herald and the daily telegraph on five separate occasions. 29 for the other four cases in our sample, only two articles made the front page. 30 the sheer volume of the coverage of the david jones case was extraordinary. during its first month, the david jones case was the subject of 24 hamish heard, ‗assault payout‘ sunday herald sun (melbourne, 13 november 2011) 21. 25 cameron houston, ‗rivers tycoon on sex assault charge‘ the sunday age (melbourne, 4 december 2011) 1. 26 tim barlass, ‗sexist port workers in the dock stevedore 'surrounded by porn' blames sexual assault on toxic atmosphere‘ the sun herald (sydney, 11 december 2011) 3. 27 ibid. 28 ibid. 29 belinda kontominas and simon mann, ‗are you being sued? sordid details of $37 million djs sex claim‘ the sydney morning herald (sydney, 3 august 2010) 1, 6; andrew hornery, ‗from lawsuit to swimsuit, djs dodges ‗m‘ word‘ the sydney morning herald (sydney, 4 august 2010) 1-2; janet fife-yeomans, ‗inside australia‘s biggest harassment case $37m sex suit‘ the daily telegraph (sydney, 3 august 2010) 1-3; nick tabakoff, ‗djs to set up bully hotline‘ the daily telegraph (sydney, 7 august 2010) 1-2 and the front page teaser headline ‗new djs revelation: $37m battle turns nasty, page 3‘ the daily telegraph (sydney, 8 august 2010) 1. 30 houston (n 25) 1. media reportage of sexual harassment 8 26 articles in the sydney morning herald, and 24 articles in the daily telegraph. however, the other cases in our sample have not attracted this level of coverage. the clayton utz case was the subject of two articles in the sydney morning herald, and two articles in the daily telegraph. the ibm case appeared twice in the age, and two times in the herald sun. the rivers case was the subject of one article in the age, one in the herald sun and one in the sunday herald sun. the patrick stevedores case, which arguably made the most serious allegations in our sample, was reported in a single article in only one newspaper; the sun herald. 4. melodramatic v flat (tabloid v broadsheet) we anticipated that there would be differences between the tabloid and broadsheet coverage. however, the cases in our sample showed that sometimes the line is not so clear. for example, much of the sydney morning herald coverage of the david jones case had a ‗scandal and gossip‘ element, with much of the reporting on the case done by the herald gossip columnist andrew hornery for his ―private sydney‖ column. in contrast, once the melodramatic ―sex fight‖ headlines were stripped away, the herald sun provided some surprisingly thoughtful commentary on the rivers case. we found that some of the coverage of the fraser-kirk case was nuanced but a flattened/melodramatic dichotomy was present in much of the media reporting, and ancient sexist stereotypes have continued to appear. as legal practitioners representing fraser-kirk, mcinnes and david jones competed for media attention and sympathetic coverage, much of the coverage focused upon the size of the claim and the credibility of the complainant. in some of the more prominently placed articles, these newspapers provided a platform for the players to make their respective announcements, and argue their cases. both the broadsheet and the tabloid newspapers highlighted the ‗scandalous gossip‘ aspects of the case, with the publication of provocative yet irrelevant sound bites from fashion designer alannah hill in the ‗private sydney‘ column, and speculation from the telegraph about sydney private investigator frank monte shadowing the complainant. in many articles, journalists provided their own critical analysis of the legal and social implications of the case, or its impact on the economic position of the david jones brand. the most ‗flattened‘, yet detailed and legally accurate articles on david jones were buried in the business day liftout section of the herald, which is separate from the main newspaper. the telegraph coverage of the david jones case fell predictably into the ‗melodramatic‘ camp, with a focus on the more colourful aspects of the case. a critical difference between the melodramatic and flattened commentary in both newspapers was the treatment of the tortious component of the claim. the denning law journal 9 in the melodramatic camp, commentators who chose to position fraser-kirk as the gold-digger generally did not concern themselves with the difference between compensatory and punitive damages. miranda devine‘s column for the herald presents a typical example: ―woman (sic) who are raped don't get that kind of money as victims compensation they're lucky if they receive $100,000. a woman who was raped by a navy colleague at hmas cairns was awarded less than $500,000 in 2007 in a sexual harassment lawsuit. a david jones employee who sustained a serious brain injury at work would get less than $300,000 in compensation under workcover. so why does mcinnes's conduct qualify for such a grand cash grab?‖31 although written with a fine rhetorical flourish, this statement fails to grasp the differences between an award of compensatory damages to return complainants to their original positions prior to the wrong suffered, compensation awarded under statutory no-fault schemes, and punitive damages to punish tortfeasors for their conduct. such a basic error rendered the article very misleading in its analysis of legal issues. a handful of commentators in the djs articles did take pains to clarify the punitive nature of the claim. for example, in the sydney morning herald, kate lahey commented: ―the figure is unusual for two reasons. its sheer size is light years away from usual payouts in such cases and the nature of the damages sought is equally rare. it is designed as punishment, beyond general compensation damages for actions so egregious they warrant the extra penalty unheard of in discrimination cases in australia.‖ 32 however, such analysis was the exception rather than the rule. only one of the telegraph articles referred to the purpose of punitive damages, ―if she wins, it would be the first time any australian court has awarded punitive damages to punish an employer in a sexual harassment case.‖ 33 the flattened/melodramatic dichotomy was also seen in the daily telegraph reporting of the clayton utz case. at first, the daily telegraph 31 miranda devine, ‗nobody died, so why is she demanding a king's ransom?‘ the sydney morning herald (sydney, 5 august 2010) 15. 32 kate lahey, ‗―no‖ gets no firmer than a $37 million lawsuit‘ the sydney morning herald (sydney, 4 august 2010) businessday 1. 33 janet fife-yeomans, ‗$37m sex suit: inside australia‘s biggest harassment case‘ the daily telegraph (sydney, 3 august 2010) 2. media reportage of sexual harassment 10 appeared to have little interest in styles‘ case, with its first report of the case being confined to a tiny ‗news in brief‘ column on page 13, 34 which was a classic example of ‗flattened‘ coverage. the brief article noted, ―a former clayton utz lawyer who is suing the top-tier firm for sexual harassment and defamation said she never made a formal complaint because she feared for her job.‖ 35 melodramatic reportage began when the newspaper launched a blistering attack on the complainant, with a more sympathetic focus on her alleged harasser. 36 the melodrama escalated with an article on the victimised ‗man in the middle‘ of the case, and an unflattering portrait of the complainant as a scorned harridan: ―mr izzo's brief fling with fellow lawyer bridgette styles triggered a volley of legal claims from his scorned lover.‖ 37 the rivers case attracted the melodramatic headline ―tycoon sex fight‖ with its front page coverage in the herald sun, 38 but the article itself struck a good balance between the flattened and the melodramatic. while aspects of the complaint were spelt out in detail, the article appeared to take pains to describe both sides of the case without the use of further inflammatory language like ‗sex fight‘, and ended with the almost bland statement, ―the matter is expected to be heard next year.‖ 39 the herald sun took a similarly dramatic approach in its headlines for the ibm case, with the sensationalist titles: ―woman sues ibm for $1.1m – sex pest legal fight‖ and ―woman sues ibm for $1.1m – worker allegedly told to ‗get boobies out‘‖. 40 these headlines demonstrated the preoccupation with money and melodrama that we found in the david jones coverage. ―sex pest legal fight‖ opened with a focus on the most dramatic aspects of the case: the size of the claim, and the ―salaciousness‖ of the harassment: ―a former female executive is suing a major melbourne company for $1.1 million after it allegedly failed to act on her repeated complaints of serious sexual harassment ….if she is awarded $1.1 million it could be the biggest sexual harassment payout in australian history. maurice blackburn lawyer siobhan keating said the allegations included that a male colleague had rubbed himself against 34 ‗lawyer‘s job fears‘ the daily telegraph (sydney, 8 june 2010) 13. 35 ibid. 36 vanda carson, ‗man in the middle of $200k claim – law firm‘s sexual harassment case‘ the daily telegraph (sydney, 4 july 2010) 17. 37 ibid. 38 shelly hadfield, ‗millionaire denies woman‘s harassment court claim – tycoon sex fight‘ herald sun (melbourne, 5 november 2010) 1, 4. 39 ibid. 40 betts (n 20); ruth lamperd, ―woman sues ibm for $1.1m worker allegedly told to ‗get boobies out‘‖ herald sun (melbourne, 20 october 2010) 13. the denning law journal 11 the woman and that he made comments such as, ‗if you get your breasts out, you will get more sales.‘‖ 41 in contrast, the age reported on the case in its ‗business‘ section, and adopted a more subdued tone, with less of a focus on describing the behaviour in gory detail, and a placing of the case in the context of recent legal history: ―a sexual harassment claim for $1.1 million brought by a top ibm saleswoman shows the failure of companies to implement their own policies properly, the woman's lawyer says. the woman, whose lawyers will not name her because of her "delicate mental state", 42 is likely to lodge a federal court claim against ibm next week. she claims she endured almost two years of sexual harassment, discrimination and bullying at the hands of a male senior manager. maurice blackburn special counsel siobhan keating said the case, together with the lawsuit against against former david jones chief executive mark mcinnes brought last year by publicist kirsty fraserkirk, showed ‗the gap in how far corporate australia has come with sexual harassment.‘‖ 43 while the size of the claim was of interest and the article covered the same information as its herald sun counterpart, the selection of quotes from the complainant‘s solicitor demonstrated an interest in the legal, rather than the ‗sexual‘, aspects of the case. 5. credibility and character in their coverage of fraser-kirk, the herald and telegraph used similar criteria as the courts in assessing her credibility. in the ‗flattened‘ and ‗melodramatic‘ articles just described, her identity, history and behaviour were scrutinised and evaluated. at first glance, fraser-kirk appeared to fit the stereotype of the credible complainant in the court discussed above. she was almost twenty years younger than her alleged harasser, and in a clearly 41 ibid betts 42 no suppression orders of the complainant‘s name appear to be in place at this time. the complainant‘s full name has been used in judgments on the federal court website, and can be seen in the online court file of the case: susan spiteri v ibm australia & ors, federal court of australia, victorian registry vid1134/2011 https://www.comcourts.gov.au/file/federal/p/vid1134/2011/actions 43 ben butler, ―ibm saleswoman in $1.1m sexual harassment claim‖ the age (melbourne, 11 april 2011) 3. media reportage of sexual harassment 12 subordinate position in the workplace hierarchy. she made a prompt, very vocal complaint of harassment. her statement of claim documented the allegations of harassment with precision. this was certainly the picture of fraser-kirk that her public relations and legal team attempted to paint, when she addressed the media on 2 august 2010. looking scared but brave, accompanied by her parents and boyfriend, she said, ―i'm a young woman standing here today simply because i said it wasn't ok, because i said that this should never happen to anyone‖. 44 many of the articles did refer to fraser-kirk‘s relative youth. thirteen herald articles and eight telegraph articles reported her age. in contrast, there appeared to be less interest in the age of mcinnes, which was only reported in three herald articles and one telegraph article. this interest in the age of the complainant was also apparent in the other cases in our sample. while styles‘ age was not specifically mentioned in the media coverage, the two sydney morning herald articles made a point of characterising her as a ‗young lawyer‘ 45 when reporting on her complaint against clayton utz. as with fraser-kirk, there was a high level of scrutiny of her behaviour in some of the coverage. for instance, in the telegraph: ―when she told mr izzo how she felt about the photos at an after-work drinks session at sydney's ryan's bar, mr izzo reported to the law firm management that he believed she was using the threat of a harassment claim as a bargaining chip with management. just weeks after she joined the prestigious firm, mr izzo alleges ms styles accused him of ‗spading other girls‘, ‗looking for his next victim‘ and ‗being such a slut.‘‖ 46 in its choice of quotations, the journalist appears to make connections between ms styles‘ workplace rotations as a graduate solicitor and her complaint of sexual harassment, with some implications for her credibility as a complainant: ―they dated for three weeks before she joined the firm, but the couple agreed to end their relationship once ms styles began work. she said shortly after she began a rotation with the company's workplace 44 kontominas and mann (n 29) 1. 45 louise hall, ‗claims of sexism as young lawyer takes on top firm‘ the sydney morning herald (sydney, 8 june 2011) 3 and emma mcdonald, ‗life in the firm still no picnic for women‘ the sydney morning herald (sydney, 9 june 2011) 15. 46 carson (n 36). the denning law journal 13 relations department which advises large companies and government on claims of unfair treatment by employees she felt harassed.‖ 47 the last line of the article can be read as a parting shot at the complainant, her credibility and her work performance, ―ms styles was sacked in december 2008. she is seeking at least $200,000 in damages.‖ 48 indeed, analysis of reportage on these five cases shows that language may be used to paint a picture of incredibility. in a herald sun article on the ibm case, the reporter suggested that the complainant may have been the archetypal incredible woman through repeated use of the word ‗allegedly‘. the complainant‘s legal representative is also mentioned as labelling her client‘s complaint as an allegation: ―maurice blackburn lawyer siobhan keating said the allegations included that a male colleague had rubbed himself against the woman and that he made comments such as, ‗if you get your breasts out, you will get more sales.‘‖ 49 the article went on, ―he had also allegedly made sexual remarks in front of her during christmas events, and had allegedly repeatedly placed his hand on her leg and up her dress several times at an evening function…he also allegedly bullied her…‖ 50 the daily telegraph gets the award for biggest turnaround in its clayton utz coverage. its first article on the case was a miniscule 'news in brief' item called "lawyer's job fears". then a few weeks later, it was a profile on the ‗man in the middle‘ of the allegations, and a blistering attack on the complainant's credibility. reportage on the rivers matter showed that mental health issues could be a double-edged sword for complainant credibility, and presented competing pictures of a hysterical, incredible woman and an injured victim of ‗real‘ sexual harassment. coverage of the rivers case focused on two attributes of the parties: the complainant, robinson‘s mental health and the respondent philip goodman‘s wealth. an article in the age included a description of the latter‘s lavish lifestyle: ―goodman has made a fortune from a national chain of more than 150 rivers stores. he owns two adjoining mansions in an exclusive 47 ibid. 48 ibid. 49 betts (n 20). 50 ibid. media reportage of sexual harassment 14 toorak court, where he keeps a fleet of prestige cars including a babyblue bentley and a red ferrari california.‖ 51 tabloid and broadsheet coverage alike devoted significant column space to the respondent, and defence attacks on the complainant‘s credibility. one herald sun article opened with a focus on the respondent and his wealth: ―a top retail tycoon has been accused of sexual harassment against a female worker, allegedly getting her to model underwear for him and spy on a business rival. millionaire philip harry goodman, 54, is the sole director of the rivers australia chain, which has 50 stores across victoria.‖ 52 the remainder of the article devoted equal space to the complainant and respondent‘s respective cases, noting that the complainant, ―claims in court documents that mr goodman:  patted her on the bottom and grabbed her breast  required her to model underwear for him in private, during which time she claims he placed his hands over and under her bra.  told her to pretend to be his wife or girlfriend during product sample purchases and called her ‗honey bun‘.  offered her gifts and insisted she call in sick so they could go to lunch.  required her to wear glasses fitted with cameras to covertly photograph products and displays of a competitor.‖ 53 then the defence‘s case was outlined: ―in a defence document responding to ms robinson's claims, mr goodman and rivers allege she has a history of bipolar behaviour, and that she suffered a range of ailments and conditions during her time with rivers, including alcohol abuse -a claim she denies. they said ms robinson at no time modelled underwear or was naked -but that she insisted on trying on underwear samples in front of mr goodman. they claim it was part of her duties as accessories product developer, charged with building the women's underwear range, that she try on samples. mr goodman denied touching ms robinson's 51 cameron houston (n 25). 52 hadfield (n 38). 53 ibid 1, 4. the denning law journal 15 breasts or bottom. rivers claims in the course of her job, he and ms robinson went to shops to assess clothes, and he would have told her that if she was approached by sales staff, she should adopt the role of being a couple. rivers and mr goodman admitted getting her to covertly photograph a competitor's goods but said that was not victimisation.‖ 54 these kind of attacks on the complainant‘s credibility, were also reported extensively by the age: ―[the defence] claimed the rivers employee did ‗nudie runs after having drunk too much alcohol‘ and ‗got so wasted on occasions at the end of a night out that she can't walk‘. max legal lawyer terry mchugh slammed the personal attacks on his client.‖ 55 the complainant‘s mental health was also used by her own legal representatives in the media – albeit to present her sexual harassment claims as credible: ―ms robinson, now of queensland, who claims she has suffered posttraumatic stress disorder, depression and panic attacks, declined to comment. her lawyers say she is ‗attempting to re-establish her career.‘‖ 56 the limited reportage of the patrick stevedore complaint is markedly dissimilar to the other four with no aspersions or hints of victim incredibility. the portrayal of britt, who described her workplace as a toxic environment, was quite sympathetic and focused on the details of the sexual harassment: ―carole-ann britt claims that she, as a handful of female workers among 450 men at patrick's port botany docks, she was surrounded by posters of naked women and piles of pornographic magazines and regularly asked about her sex life… the matter came to a head when she alleges she was driven at night to a secluded part of the port behind freight containers where a male employee placed his hand between her legs and encouraged her to have sex with him.‖ 57 54 ibid 4. 55 houston (n 51). 56 hadfield (n 38). 57 barlass (n 26). as discussed above, this case only appeared in one newspaper story. media reportage of sexual harassment 16 the article quoted the complainant‘s legal representative‘s description of the matter as ―the worst case of sexual harassment i have ever seen‖ 58 and a patrick stevedores spokesperson expressing disappointment over the failure of conciliation and the complainant‘s decision to speak to the media. 59 6. conclusion a common feature of both media reporting and judgments is the focus upon the credibility of the complainant as opposed to the respondent. discussion of the complainant‘s behaviour, response to harassment and mental health was a common feature of the newspaper coverage. while there was some discussion of the respondent‘s behaviour in the rivers case, it was the complainant who held the most interest for journalists. coverage of the ibm case and rivers case placed considerable focus on the mental health of complainants. in court hearings, the credibility or character of the complainant appears to correlate with a finding in her favour. 60 in contrast, the media‘s presentation of the woman did not seem to affect the outcome. for example, coverage tended to be more sympathetic to the complainant in the other four cases than towards fraser-kirk. she was depicted in many of the stories as avaricious. yet her matter settled for a reputedly higher amount than in the other four. the melodramatic nature of the coverage did not necessarily equate to a credible or incredible picture of the complainant in a sexual harassment case. generally, the melodramatic reporting focused on the ‗sexual‘ aspects of the complaint in lurid detail, and the complainant‘s response to harassment. this could include either a sympathetic portrayal of the complainant, as in the patrick stevedores coverage, or an unsympathetic portrayal, as seen in the telegraph coverage of the clayton utz case. although the more ‗flattened‘ commentary did not make the same judgments of complainant incredibility as the ‗melodramatic‘ coverage, its ‗buried‘ nature made it less accessible to all but the most interested readers. the more ‗flattened‘ commentary also did not necessarily equate to a more credible presentation of the complainant, or a discussion of the complainant at all. the telegraph ‗news in brief‘ item on the clayton utz case amounted to a ‗burying‘ of the story, and gave no impression of ms styles as a complainant, either credible or incredible. the more ‗flattened‘ sydney morning herald coverage in its business day liftout of the david jones case did not make the 58 ibid. 59 ibid. 60 easteal and judd (n 1) 2008. the denning law journal 17 same credibility judgments as the private sydney columns in the main paper, but its more nuanced coverage was not placed in a prominent position. it is somewhat disturbing then to see how the mass media plays an important role in the shaping of community attitudes, by using stories to present its own ‗reality.‘ it is this ‗reality‘ that gives the general community their information about sexual harassment and the law. the coverage was somewhat uneven in its focus, with some articles addressing relevant legal issues, and others showing a greater interest in using language to undermine the credibility of complainants. for instance, whilst it is important for the media to be careful in reporting of court cases and show an understanding of key concepts like damages, and to not describe matters in dispute as established facts, the journalist‘s use of the word ‗allegedly‘ five times and ‗allegations‘ twice in the 300 word article about the ibm case does seem excessive. further, the melodramatic coverage presented patchy legal information for readers, and a continuing influence of sexist stereotyping. many of the articles included irrelevant information, such as suggestions that the complainant in the rivers case engaged in ‗nudie runs‘ when drunk, that presented a picture of an incredible complainant but did not have any bearing on her complaint of sexual harassment. information of this kind can be challenged in a court of law before being admitted in evidence, but the complainant does not have this option if these statements are already in print. therefore, if the media indeed creates its own ‗reality,‘ it presents a problematic picture of sexual harassment law for potential complainants and respondents, and leaves a somewhat misleading impression of their respective rights and responsibilities. in the ways described here, it would seem that the australian tabloid and broadsheet print media, like their overseas counterparts, do indeed frequently rely on broad-brush characterization and evocative language, which may impact upon how sexual harassment complainants and perhaps sexual harassment itself, are regarded by the community. unincorporated associations: property holding, charitable purposes and dissolution denning law journal 2014 vol 26 pp 205-213 case commentary daejan investments ltd v benson [2013] uksc 14, [2013] 1 wlr 854, [2013] 2 all er 375 philip h pettit∗ introduction in this important case on the landlord and tenant act 1985 (as amended by the commonhold and leasehold reform act 2002) the supreme court, by a bare majority, allowed the appeal against the decision of a leasehold valuation tribunal (lvt) which had been affirmed by, first, the upper tribunal (lands chamber), and, secondly, by the court of appeal. almost all long leases of flats contain an obligation on the landlord (or a service company) to provide services, such as repairing the exterior and common parts of the block, and a concomitant obligation on the tenants to pay service charges. the right of the landlord to recover such service charges depends on the terms of the particular lease, but the 1985 act and the service charges (consultation requirements)(england) regulations 2003 impose certain statutory requirements and restrictions on a landlord, which impinge on its ability to recover service charges. these requirements are designed to ensure that tenants of flats are not required (i) to pay for unnecessary services or services which are provided to a defective standard, and (ii) to pay more than they should for services which are necessary and have been provided to an acceptable standard. the statutory provisions section 19(1) of the 1985 act provides that in determining the amount of a service charge the costs of qualifying works are to be taken into account: “(a) only to the extent that they are reasonably incurred, and (b) …only if the…works are of a reasonable standard.” ∗ emeritus professor of equity, universities of bristol and buckingham. 205 case commentary further, where the costs in any year would result in the service charge contribution of any tenant to the cost of the relevant works exceeding £250, the landlord cannot recover more than that sum unless, as provided by section 20(1) of the 1985 act: “ the consultation requirements have been either – (a) complied with in relation to the works…or (b) dispensed with in relation to the works…by (or on appeal from) a leasehold valuation tribunal.” s 20za(1) provides that: “where an application is made to a leasehold valuation tribunal for a determination to dispense with all or any of the consultation requirements in relation to any qualifying works…the tribunal may make the determination if satisfied that it is reasonable to dispense with the requirements.” the dispensation may be either prospective or retrospective. in practice it has hitherto been very difficult to persuade a lvt to dispense with any of the requirements prospectively, and almost impossible to do so retrospectively. the consultation requirements are contained in pt 2 of sch 4 to the 2003 regulations. they are in four stages: stage 1. notice of intention to do the works details of the proposed works must be given to each tenant, allowing at least 30 days for observations (to which the landlord must have regard) and nomination of possible contractors. stage 2. estimates the landlord must seek estimates from, inter alios, nominees of the tenants. stage 3. notices about estimates the landlord must issue a statement to the tenants with two or more estimates (including any nominee’s estimate) and a summary of observations and its responses. 30 days must be allowed for further observations, to which regard must be had by the landlord. stage 4. notification of reasons unless the chosen contractor is a nominee or submitted the lowest estimate, the landlord must make its reasons available to each tenant within 21 days. 206 the denning law journal facts daejan investments ltd (daejan) was the owner of premises including five flats held on long leases by the five respondents. it proposed to carry out works costing over £400,000. it carried out stages 1 and 2 of the consultation requirements but at the original hearing before a lvt it was concluded that the landlord had failed to comply with the stage 3 requirements in two respects. as lord wilson jsc put it, daejan aborted the stage 3 requirement and thus deprived the tenants of an opportunity to examine the tenders and make informed observations thereon. at a further hearing before the lvt the issue was whether the requirements should be dispensed with in relation to the works pursuant to the provisions contained in ss 20(1)(b) and 20za(1) set out above. if the landlord was free to enforce the service charge provisions in all the leases held by the five respondent tenants, it would be entitled to recover just under £280,000 in total from the respondents by way of service charge payments in respect of the works, whereas, if no dispensation was granted, it would be limited to recovering service charges of £250 per respondent in respect of the works, ie a total of £1,250. the lvt decided that it should not dispense with the requirements, and its decision was affirmed by the upper tribunal (lands chamber) and subsequently on a further appeal to the court of appeal. the lvt also rejected a proposal by the landlord that the chargeable amount should be reduced by £50,000: in the court of appeal gross lj doubted that the lvt would have been entitled to accede to this proposal, and in any event was entitled to reject it. issues raised on appeal to the supreme court in the supreme court lord neuberger psc, with whom lord clarke and lord sumption jjsc agreed, said that three questions of principle arose which needed to be answered before it could be decided how the appeal should be resolved. these were: (i) the proper approach to be adopted on an application under s 20za(1) to dispense with compliance with the requirements; (ii) whether the decision on such an application must be binary, or whether the lvt can grant a s 20(1)(b) dispensation on terms; (iii) the approach to be adopted when prejudice is alleged by tenants owing to the landlord’s failure to comply with the requirements. lord neuberger began his consideration of the first question by observing that the act gave little specific guidance as to how a lvt should exercise its jurisdiction “to dispense with all or any of the [requirements]” in a particular case. the circumstances, he said, in which a s 20za(1) application is made are almost infinitely various, so any principles that can be derived should not 207 case commentary be regarded as representing rigid rules. taking account of the purpose of the requirements as noted above, he expressed the opinion that the issue on which a lvt should focus on an application under s 20za(1) is the extent, if any, to which the tenants were prejudiced by the failure of the landlord to comply with the requirements. in a case where it was common ground that the extent, quality and cost of the works had in no way been affected by the landlord’s failure to comply with the requirements, he found it hard to see why the dispensation should not be granted (at least in the absence of some very good reason). in such case a dispensation should not be refused solely because the landlord seriously breached, or departed from, the requirements. the requirements are a means to an end, not an end in themselves. he did not consider it convenient or sensible to distinguish in this context, as the lvt, upper tribunal and court of appeal all thought appropriate, between “a serious failing” and “a technical, minor or excusable oversight”, save in relation to the prejudice it causes. on the one hand a “minor or excusable oversight” could cause severe prejudice, and on the other hand a gross breach might cause the tenants no prejudice. the courts below had been right to emphasise the importance of real prejudice to the tenants flowing from the landlord’s breach of the requirements: this is, indeed, normally the sole question for a lvt when considering how to exercise its jurisdiction. in agreement with the courts below, he held that the financial consequences to the landlord of not granting a dispensation is not a relevant factor. lord neuberger further stated that he did not agree with the courts below in so far as they supported the proposition that an additional reason for the imposition of the consultation requirements was to ensure a degree of transparency and accountability when a landlord decides to undertake qualifying works. in his opinion the obligations in ss 20 and 20za do no more than provide practical support for the two purposes identified in s 19(1). on the second question the contention of the respondents was that a lvt has to choose between two simple alternatives: it must either dispense with the requirements unconditionally, or refuse to dispense with the requirements. if this contention was correct, then, as the upper tribunal held, and the court of appeal thought probable, it would not have been possible for the lvt to grant a dispensation on the terms offered by the landlord, namely a reduction of the sum payable by the respondents of £50,000. lord neuberger held, however, that a lvt is not so constrained when exercising its jurisdiction under s 20za(1): it has power to grant a dispensation on such appropriate terms as it thinks fit. although a lvt has a very limited power to make an order for costs, the terms may include a condition as to costs – eg that the landlord pays the tenants’ reasonable costs incurred in connection with the landlord’s application for a dispensation. this condition would be a term on 208 the denning law journal which the lvt granted the statutory indulgence of a dispensation to the landlord, not a free-standing order for costs. lord neuberger began his consideration of the third question by observing that where the landlord has failed to comply with the requirements, there may be a dispute as to whether, and to what extent, the tenants would relevantly suffer prejudice if an unconditional dispensation was accorded. the fact that this might occasionally involve a difficult exercise was not a valid reason for the court refusing to carry it out. he continued by saying that while the legal burden of proof – semble, proof that it was reasonable to dispense with the requirements – would be, and would remain throughout, on the landlord, the factual burden of identifying some relevant prejudice that they would or might have suffered would be on the tenants. however given that, ex hypothesi, the landlord will have failed to comply with the requirements, a lvt should view the tenants’ arguments sympathetically; a further reason for such an approach is that the lvt is having to undertake the exercise of reconstructing what would have happened, and it is because of the landlord’s failure to comply with its duty to the tenants that it is having to do so. for the same reason a lvt should be slow to deprive the tenants of the costs of investigating relevant prejudice, or seeking to establish that they would suffer such prejudice. and once the tenants have shown a credible case for prejudice, the lvt should look to the landlord to rebut it. effect of conclusions on above three issues having set out his conclusions on the three issues raised, lord neuberger went on to explain their effect. a landlord who fails to comply with the statutory requirements must, he said, get a dispensation under s 20(1)(b) if it is to recover service charges in respect of the works in a sum greater than the statutory minimum. in so far as the tenants will suffer relevant prejudice as a result of the landlord’s failure, the lvt should normally require the landlord to reduce the amount claimed as service charges to compensate the tenants fully for that prejudice. concern that this could be unduly favourable to the landlord by enabling it to buy its way out of its failure to comply with the requirements is, he said, answered by the significant disadvantages which the landlord would face, ie having to pay (i) the costs of an application to a lvt under s 20(1)(b); (ii) the tenants’ reasonable costs in connection with the application; (iii) full compensation for any relevant prejudice. the overall result would be, (a) the power to dispense with the requirements would be exercised in a proportionate way consistent with their purpose; (b) a fair balance between (i) ensuring that the tenants do not receive a windfall because the power is exercised too sparingly and (ii) ensuring that landlords are not 209 case commentary cavalier, or worse, about adhering to the requirements because the power is exercised too loosely. application of the law to facts of the case applying the law as noted above lord neuberger said that all the courts below had adopted the wrong approach to the application for a dispensation. this was because (i) they took into account the gravity of the failure not only in the prejudice it may have caused to the tenants, but as a free-standing matter, (ii) they considered that the mere possibility of prejudice would be enough to preclude the grant of a dispensation, and (iii) in the case of the upper tribunal and the court of appeal they did not consider (or doubted) that it was open to the lvt to grant a dispensation on terms, and in the case of the lvt that they did not address the question whether the £50,000 reduction offered by the landlord exceeded any relevant prejudice which the tenants could establish. the correct question which the lvt should have asked itself was whether the respondents would suffer any relevant prejudice, and, if so, what relevant prejudice as a result of the landlord’s failure, if the s 20(1)(b) dispensation was granted unconditionally. on the facts although there was an undoubted failure by the landlord to comply fully with the requirements, the relevant prejudice to the respondents of granting the dispensation could not be higher than the £50,000 reduction offered by the landlord. accordingly the lvt ought to have decided that the landlord’s application for a dispensation should be granted on the terms that (i) the respondents’ aggregate liability to pay for the works be reduced by £50,000, and (ii) that the landlord pay the reasonable costs of the respondents in so far as they reasonably tested its claim for a dispensation and reasonably canvassed any relevant prejudice which they might suffer. the appeal was accordingly allowed and a dispensation granted on the terms indicated. dissenting opinions both lord hope dpsc and lord wilson jsc gave strong dissenting judgments. lord hope attached great importance to the fact that the issues to which s 20za(1) directed attention had been entrusted by statute to an expert tribunal. questions such as whether a landlord’s breach of the consultation requirements was “serious” or “technical, minor or excusable” were questions of fact and degree best left to the tribunal. further this was an area of tribunal law and practice where it had been recognised, out of respect for the tribunal’s expertise, that judicial restraint should be exercised. though it would normally be appropriate for the tribunal to require the tenants to provide some 210 the denning law journal evidence of prejudice (particularly in the case of a minor breach) there could, in his opinion, be cases where the breach was so serious that it would on that ground alone not be “reasonable”, as put in s 20za(1), to dispense with the consultation requirements. it should be, he said: “open to the tribunal to take that view in the interests of preserving the integrity of the legislation, and to do so without conducting any such inquiry.” lord hope further stated that he was unable to agree with the conclusion of the majority that the courts below had been wrong to hold that it should be open to the lvt to distinguish, in the exercise of its judgment, between breaches or departures according to their level of seriousness, without having first to consider the amount of prejudice they may cause or may have caused. of course, he added, the two things may run together, but it would be not be right to hold that to separate the two can never be appropriate. lord wilson expressly disagreed with central aspects of the exposition by lord neuberger of the principles to be applied by a lvt in its determination of an application to dispense with one or more of the consultation requirements. in his opinion when parliament by the 2002 act inserted the new s 20 and the additional s 20za into the 1985 act and accepted the 2003 regulations it deliberately imposed requirements which impacted severely on landlords. the dispensation is only available to a landlord if he satisfies the lvt that it is reasonable to grant it; even if so satisfied the lvt has a discretion whether to grant the dispensation; in the absence of compliance or dispensation the contribution of each tenant is limited to £250 whatever the cost of the works. lord wilson’s view was that substantial non-compliance with the requirements was, without more, intended to entitle the lvt, in the exercise of its discretion, to refuse to dispense with them in order to preserve the integrity of the legislation. this view, he said, was supported by a consultation paper in relation to a draft of the regulations which stated that the intention of the dispensation procedure was to cover situations where consultation was not practicable and to avoid penalising landlords for minor breaches of procedure which do not adversely affect service charge payers’ interests. in lord wilson’s opinion lord neuberger’s conclusion that the gravity of the landlord’s non-compliance with the requirements is relevant to dispensation not of itself but only in so far as it causes financial prejudice to the tenant subverts parliament’s intention. again disagreeing with lord neuberger he agreed with the analysis of lewison j in paddington basin developments ltd v west end quay estate management ltd 1that one of the 1 [2010] ewhc 833 (ch), [2010] 1 wlr 2735. 211 case commentary reasons for the imposition of the consultation provisions was to ensure a degree of transparency and accountability. both the dissenting judges however agreed with the majority that it was open to a lvt to attach a condition such as that proposed by daejan that it would reduce the cost of the works to be charged to the tenant by £50,000. the lvt’s expressed reason for rejecting the landlord’s offer of a reduction of £50,000 was that it was impossible to assess it in the light of the costs of the works already undertaken and of the estimated cost of the works still to be undertaken, as to neither of which had the landlord adduced evidence. the gravity of the landlord’s non-compliance with the requirements made the lvt’s appraisal of any offer extremely difficult. but, lord wilson said, with the full agreement of lord hope, that it was in any event entitled, in its discretion, to decline to accept the offered reduction without knowing the proportion which it bore to the overall cost of the works. in their view the lvt had made no error of law in refusing the landlord’s application for dispensation with the requirements and the upper tribunal and the court of appeal had been correct in determining not to set its refusal aside. they would, therefore, have dismissed the appeal. comment as gross lj said in the court of appeal:2 “the issue is one of statutory construction…” from what has been said above, it seems that the approach of the majority to the issue departed from the strict approach applied by the minority and the courts below. this is to the effect that non-compliance with the consultation requirements, in accordance with the terms of the statutory provisions, unless the requirements have been dispensed with by the lvt, has the consequence that costs incurred by the landlord above the statutory limit are irrecoverable through the service charge. this is so even if they had been reasonably incurred and had been incurred in the provision of services, or the carrying out of works, to a reasonable standard, and the tenant had suffered no prejudice. lord wilson, as noted above, in disagreement with the decision of the majority, was of opinion that where there had been a serious breach a lvt might properly hold that on that ground alone it would not be “reasonable” to dispense with the consultation requirements. he recognized that this might give rise to a windfall to the tenants and impact severely on the landlord, but considered that this severity was testament to the importance which parliament attached to compliance with the requirements. lord neuberger, on the other hand, giving the decision of the majority, was of opinion that one should look more deeply into, and lay more stress on, 2 [2011] 1 wlr 2320 at 59. 212 the denning law journal the reason for the imposition of the requirements, which in this case, as the minority agreed, was the protection of tenants in relation to service charges. in his view it was held to follow, as noted above, that normally the sole question for the lvt when considering whether it was reasonable to dispense with consultation requirements was the real prejudice flowing from the landlord’s breach of the requirements. no distinction should be made between a “serious failing” and a “technical, minor or excusable oversight” save in relation to the prejudice it causes. a dispensation should not be refused by a lvt solely because the landlord seriously breached, or departed from, the requirements. it remains to be seen whether this more relaxed approach will be extended to codes imposing requirements to be fulfilled in other contexts. the decision has met with a mixed reception, not surprising in a case where the voice of the bare majority in the supreme court, which must prevail, is in disagreement with all the other judges who have been involved in the case. some applaud the approach of the majority which, in their view, produces a sensible result between, as lord neuberger put it, on the one hand ensuring that tenants do not receive a windfall because the power is exercised too sparingly and, on the other hand, ensuring that landlords are not cavalier, or worse, about adhering to the requirements because the power is exercised too loosely. others consider that the purpose of parliament was to protect long leaseholders from the doubtful practices of some landlords and they take the view that the decision is inconsistent with the integrity of the consultation process which is intended to deny relief to landlords who fail to follow the correct procedure. its further intention is to ensure a degree of transparency and accountability. landlords have welcomed the decision, but they should not treat it as entitling them to disregard the consultation requirements. as noted above lord neuberger pointed out the landlord would have to pay not inconsiderable costs on the application for a dispensation. landlords should, of course, comply with the consultation requirements, but if they have failed to do so they would be well advised to seek a dispensation, offering to discount the amount of the service by an appropriate amount to compensate the leaseholders for any prejudice arising from their failure to comply with the consultation requirements. 213 introduction the statutory provisions stage 1. notice of intention to do the works stage 2. estimates stage 3. notices about estimates stage 4. notification of reasons facts issues raised on appeal to the supreme court effect of conclusions on above three issues application of the law to facts of the case dissenting opinions comment unincorporated associations: property holding, charitable purposes and dissolution denning law journal 2014 vol 26 pp 1-18 human rights and media: the experience of the commission of inquiry on north korea michael kirby* abstract increasingly un human rights mandate-holders are engaging with diverse modern media to enhance the effectiveness of their work. there are dangers and difficulties in doing so. however modern media can be a useful ally in the work of the un by raising awareness of grave crimes and violations; engaging with and empowering victims of abuse; and encouraging demands that investigations will be followed by action and accountability. this article, based on the experience of the un inquiry into north korea explains the coi’s methodology; examines the adoption and features of its media plan; outlines a number of suggested basic rules to be observed by un inquiries; identifies modalities of news management; and predicts likely future developments inherent in new media technology. the author insists that news coverage is not an end in itself but a means to help attain the human rights goals of the inquiry and of the un. media and human rights: natural bedfellows? even in oppressive countries, those responsible for abuses of human rights normally perform their deeds of commission and omission in private, away from the glare of publicity. publicity and news attention encourage supporters of global human rights to address the violations of human rights of peoples and individuals. they speak up and demand action. secrecy is a cloak for terrible crimes and violations. this is why, in the current international situation, those with responsibility for the united nations’ efforts to advance universal human rights, and to expose violators, have increasingly looked to the media (especially * the hon. michael kirby ac cmg, former chair of the united nations human rights council’s commission of inquiry on north korea (2013-14); former special representative of the secretary-general of the united nations on human rights in cambodia (1993-6); one time justice of the high court of australia (1996-2009). 1 human rights and media: the experience of the commission of inquiry on north korea international media) to support their efforts. between the time in the 1990s when i discharged a mandate as special representative of the secretarygeneral for human rights in cambodia (1993-6) and the more recent time in which i served as chair of the commission of inquiry (coi) on alleged human rights violations in the democratic people’s republic of korea (dprk) (north korea) (2013-14),1 i noticed a significant change in the engagement of united nations personnel with the media. a connection with media became more intensive, more time consuming and more professional. moreover, it is supported from the top of the organisation. the secretarygeneral of the united nations (ban ki-moon), the high commissioners for human rights, other agency heads and mandate-holders have become much more willing to engage with media and much more skilful in doing so. by this i mean not only local newspapers, radio and television interviews but also international media and the new social networks, blogs, reddit and the internet generally. together these media can bring news, information and opinions of un experts on human rights to an audience far wider than that which, in the past, had access to un reports on human rights concerns. there are, of course, dangers in such engagement. they include: ∗ the capacity of hostile media to distort, edit and manipulatively abbreviate interviews, so as to cast the united nations and its officials in a bad light; ∗ the danger of media that has its own partial agenda and biased viewpoint that will distort the messages that the un officials try to convey; ∗ the growth of opinionated journalists; superficial "celebrity" coverage of serious events; and the deliberate or negligent misrepresentation of news stories dealing with human rights problems. by definition, these problems are ordinarily serious and deserving of a careful reportage that respects complaining victims and is also fair and accurate towards alleged perpetrators; and ∗ the vicissitudes of modern media today include the priority given to personality, colourful celebrities and visual stories, particularly those designed to tug the heart strings or to enflame the passions of the audience. these can sometimes distort the stories themselves and influence competing priorities. 1 established by the united nations, human rights council, resolution 22/13, adopted 21 march 2013. 2 the denning law journal these problems, which have become magnified over the past 20 years, were amongst the reasons why some early office-holders of the united nations were suspicious of media and often inclined to keep their distance. other problems arise from the varying skills of mandate-holders, including in their respective linguistic abilities, in coping with the pressures of media questioning, particularly in circumstances that are highly charged, sensitive and potentially dangerous. this article acknowledges the dangers and difficulties. however, it proceeds on the assumption that, used with care and skill, the modern media can become an important ally for the united nations’ efforts to uphold and defend universal human rights. this proposition will be illustrated by reference to lessons taught by the coi on north korea. establishment and methodolgy the coi on dprk got underway after 7 may 2013 when the president of the human rights council (hrc) appointed sonja biserko (a human rights expert from serbia) and myself (a former judge in australia) to join the special rapporteur on dprk, marzuki darusman (indonesia), as members of the coi. i was designated to serve as the chair. the mandate given to the coi specified nine substantive areas upon which reports had been received by the united nations of serious and widespread violations of human rights. by its resolution, the hrc urged the government of dprk to cooperate fully with the coi’s investigation; to permit the members of the coi unrestricted access to the country; and to provide them with all necessary information to allow the fulfilment of the mandate. however, the ambassador of dprk in geneva immediately rejected the establishment of the coi. he indicated that dprk would not cooperate.2 this position was not altered in the course of the investigation. accordingly, the coi was unable to extend its investigation to on the spot scrutiny of the situation of human rights in dprk. this was an undoubted disadvantage. but just as, in national jurisdiction, it cannot be left to a party suspected of grave violations in the law to determine whether or not it will cooperate with a body lawfully created to conduct such investigations, so in international jurisdiction the non-cooperation of dprk could not be allowed to deflect the coi from performing its duty. at the end of the investigation, in a comment on the report of the coi, the representative of china expressed the view that, as the coi had not been able 2 letter from dprk dated 10 may 2013 to the president of the human rights council. see report of the detailed findings of the commission of inquiry on human rights in the democratic people’s republic of korea, a/hrc/25/crp.1 (7 february 2014), 8-9 [21]. 3 human rights and media: the experience of the commission of inquiry on north korea to persuade the country concerned (dprk) to cooperate, its report was necessarily flawed and deprived of essential evidentiary material and thus legitimacy. this cannot be the way in which the charter of the united nations is intended to operate. effectively, such a view would give every state of the organisation a veto power. under the charter, only the permanent members of the security council enjoy the exceptional power of an effective veto, and then only in validating defined decisions of the security council on non-procedural matters, in respect of which the concurring votes of the permanent members must be included in the majority outcome.3 nevertheless, for reasons of ensuring a thorough, impartial and effective investigation, and to address the optics of the inaccessibility of the country and people most concerned, the coi addressed the issue of its methodology at its first meeting held in geneva on 1-5 july 2014. it decided to advertise widely for submissions and to conduct public hearings before which witnesses for whom it would be safe, could provide oral testimony. in the result, a large number of witnesses, including some institutional and some with special expertise, approached the commission to give evidence. to meet the potential criticism that these witnesses were self-selecting and unacceptably prejudiced against dprk, the coi decided, with the approval of the witnesses, to film the evidence and to place it online. where it was judged to be unsafe or risky to do so, either the witness would be interviewed in confidential session and not filmed or photographed, or improvisations would be adopted (disguises of various kinds) to fulfil the mandate instruction to avoid any risks to the witnesses. the foregoing decisions were to prove time consuming and demanding for the members of the coi and its secretariat, as for some witnesses. there were various logistical difficulties, including the necessity of translation of evidence and security for witnesses. however, the methodology adopted afforded the coi, where it accepted the witness testimony, an appropriate response to the charge of partiality. critics and the merely curious could be invited themselves to view the witness testimony. in this way modern information technology, supported by the interest of international news media, brought the veracity question directly to the interested international audience. because, overwhelmingly, the witnesses were plainly truthful and commonly impressive, the transparency adopted by the coi constituted an antidote to the criticisms levelled against it by dprk and china. subsequent efforts of the coi, in cooperation with the governments of the republic of korea (south korea) (rok) and japan, secured transcripts of the oral testimony. these were made available both in english and in the 3 united nations, charter, 26 june 1945; 59 stat. 1031; ts 993, 3 bevans 1153, entered into force 24 october 1945, article 27.3. 4 the denning law journal language in which the witness gave evidence. like the digital images, these transcripts were later uploaded on the website of the coi. in addition to these matters of methodology, the coi, in the spirit of transparency, also consulted the major national missions having an interest in the situation in north korea: australia, china, france, laos, the russian federation, thailand, the united kingdom and the united states of america. later, meetings in geneva with regional participants from africa, asean, europe and latin america permitted outreach to most countries with a special interest in dprk. the conduct of public hearings in seoul (20-24 august 2013); tokyo (2930 august 2013); london (23 october 2013) and washington dc (30-31 october 2013) produced a powerful body of testimony that became highly visible on several continents. often the testimony was extremely vivid, dramatic and distressing. the manner in which the coi went about its task was therefore adapted to modern media: radio, television, print media, the internet and social media. if the medium in the contemporary world is to some extent the message, the methodology of the coi on dprk projected a potent message of transparency. it demonstrated the impartiality of the commissioners, both in the way in which they gathered evidence by nonleading questions and in their assessment of the evidence itself as credible, reasonable and normally convincing, even understated. in this way, the methodology chosen by the commissioners re-enforced the success of the way in which the coi went about its work. it helped to neutralise the noncooperation of dprk. it provided intensely powerful statements of apparent veracity. it also afforded the coi a pool of vivid evidence with which to illustrate its investigations of the nine subject areas nominated by the mandate from the hrc. in the subsequent write up of the report of the coi, it was therefore possible to include, effectively on every second page, quotations from the hearing transcripts. these allowed victims of grave human rights abuses to describe their ordeals in their own language. by quoting them, the coi gave them a voice to the highest levels of the united nations and the international community. it also avoided the inevitable tendency of second and third hand versions of evidence to reduce the power of witness expositions by mediating them through the analysis and impressions of third parties, however expert. apart from every other utility of this source of evidentiary material, the technique of public hearings afforded to the media a large pool of expressive evidence, in direct speech, from which media could freely quote. in this way, the methodology of the coi was well adapted to the modern techniques of media reporting. generally, these seek to concretise large, opaque issues by invoking the described experience and reactions of the named witnesses. 5 human rights and media: the experience of the commission of inquiry on north korea adopting a media plan although none of the commissioners of the coi on dprk was a journalist by training, each had viewed the operation of modern media in their own country. in my own case, a period of service as chairman of the australian law reform commission in 1975-84 had given me the experience of working with national media to explain, justify and promote institutional recommendations for law reform. accordingly, in my own country, 20 years earlier, i had a decade’s experience of working with print and electronic media. further, during my service as special representative of the secretarygeneral for human rights in cambodia, i had insisted on engagement with local, national and international media. at the end of each visit to cambodia as special representative, a media conference was conducted. even in the 1990s, this was the usual practice of human rights mandate-holders for the united nations.4 this practice is an important aspect of transparency and free speech, which is itself a basic human right. however, it has to be handled with care to avoid needless criticism by the governments concerned, hostility, and allegations of bias and pre-judgment. the coi on dprk was fully alert to these risks and it avoided them. to ensure the availability of expert guidance in dealing with the media, the coi engaged for its visits to seoul and tokyo in august 2013, a journalist with extensive experience in the human rights work of the united nations, mr ron redmond, a united states national. at the request of the coi, he developed a media plan. this was basically adhered to throughout the work of the coi. mr redmond was not available for the coi’s public hearings in london nor subsequently. however, at that time, the coi secured the support and assistance of a senior officer in the office of the high commissioner for human rights (ohchr), mr rolando gomez. he also assisted the coi in relation to its engagements with the general assembly (3rd committee) in october 2013 and later the "arria procedure" to brief members of the security council (17 april 2014). in addition, for engagements in geneva, particularly with the hrc, side events in the palais de nations and with engagements with un and independent news media in geneva, the coi had the support and assistance of mr rupert colville and ms liz throssell. they helped arrange the media conferences that took place in geneva at the time of the oral update of the hrc (september 2013), the release online of the english language version of the coi report (17 february 2014) and the formal 4 ted piccone, catalysts for change: how the uns independent experts promote human rights (brookings institution 2012) 23-24, 31-32, 116, 125. 6 the denning law journal presentation of the report to the hrc and engagement with the hrc members and other nations (17 march 2014). the media conferences, and follow up media interviews in geneva and the media ‘stake out’ in new york after the arria procedure in the un headquarters on 17 april 2014, were all very heavily attended by media. each such engagement lasted more than an hour. each was heavily reported in local and international print and electronic media, as well as in social media and on the internet. the media plan initially, devised by mr redmond, involved a number of initiatives: ∗ information brochure: a number of frequently asked questions were addressed in detail. these contained clarifications of the mandate of the coi, expressed in language that could be picked up and used in media reports. it also included a description of what a coi was; what the mandate of the coi on dprk provided; the history and background of the coi; the identities and short biographies of the commissioners; an analysis of the mandate; an outline of the immediate program of the coi; and some quotes that could be attributed to the commissioners in relation to the immediately pending public session of the coi; ∗ media releases: in advance of each series of public hearings and the other engagements in geneva, washington and new york, media releases were produced and widely distributed through the un media contacts. these gave different angles on the work of the coi and on the purpose of the upcoming engagements. for the public hearings in seoul and tokyo, translations of the media releases into the local language were provided. this was also done in advance of subsequent important engagements of the coi; ∗ interviews: a schedule of interviews was prepared and approved by the commissioners in advance of the engagements of the coi both for public hearings and also consultations in geneva and new york. as well, indications were provided as to how additional interviews might be secured and contacts were given to permit direct enlistment of the help of the coi media officer. ∗ embargos: strict embargos were assigned to a number of engagements, including the oral updates in geneva and new york in 2013, the initial release of the coi report to the media in february 2014; and the presentation of the coi report to the hrc and members of the security council, respectively, in march and april 2014. one 7 human rights and media: the experience of the commission of inquiry on north korea international news service appeared to breach the embargo specified for the initial release of the report. this potentially endangered the impact of the primary release of the findings of the coi. immediate efforts of the geneva-based media officers circumvented what could have been a serious disturbance of the hoped-for impact of the coi report. in the result, as a sanction, the offending agency was excluded from the ensuing media conference in geneva, although not without protests and excuses offered on its behalf. ∗ social networks: an officer of the office of the high commissioner for human rights (ohchr) handles the release of human rights material on social networks, including twitter, weibo, you tube, reddit, blogs and other modalities. this expertise was enlisted to ensure maximum possible distribution of the coi’s media material. the consequence was one of the most widespread and powerful examples ever of news coverage in the human rights field. of course, the readability, attractions and significance of the coi report itself assisted in this endeavour. international news media is particularly discerning in the attention it gives to news stories. it is also resistant to attempts to "puff" news stories into a significance that they inherently lack. the widespread coverage of the successive stages of engagement of the coi on dprk with news media was commented upon in many places, including in observations by senior officers of ohchr.5 ∗ follow up and assessment: at my request, following the conclusion of his engagement with the coi, the initial media officer who formulated the media plan, mr redmond, prepared an assessment of the lessons and a description of the coi’s media engagement.6 this assessment is candid. it addresses such issues as planning guidelines; the importance of local field support; the requirements of suitable venues for public hearings; the assessment of local interest; the possible necessity of procedures for registration of media; the handling of interview requests; the monitoring of media coverage; the conduct of post hearing media conferences; and the utilisation and 5 m rishmawi, “the role of human rights fact finding in the prevention of genocide”, unpublished paper for international conference on prevention of genocide, brussels, march 2014, referring at p 2 to the commission on the occupied palestinian territory and southern israel, 2009, (judge richard goldstone, president). 6 ronald redmond, “media relations for coi public hearings in the field: lessons learned from the coi on human rights in dprk”, unpublished, ohchr, 2013. 8 the denning law journal archiving of video materials, transcripts and other records. the report also contains a number of useful recommendations for cois of the united nations human rights system in the future. future suggested activities include the creation of dedicated websites for the coi on dprk; the posting on them of electronic copies of the report of the coi; the inclusion of speeches of commissioners given in the course of the performance of their duties; transcripts of media conferences; news coverage; photographs and other materials. the posting of nonenglish language media materials and of translations into other languages of the report and detailed findings of the coi are imperatives to ensure the success of the coi in reaching out beyond a purely english language audience. in what follows, a number of basic rules for the conduct of cois will be mentioned. these have no official significance but are possibly useful indications for those who work in advancing the united nations’ cause of protecting and upholding human rights through the mandates given to bodies such as cois and to individuals such as special rapporteurs as well as dedicated committees and agencies. some basic rules ∗ maintaining a cool temper: recently, when addressing a conference, the microphone system broke down for the third time. i protested somewhat bluntly in frustration. whilst this was a natural human reaction, it was damaging to the message and looked inappropriate in the recording preserving the passing event for repeated viewings. unerring patience is called for in all dealings with media, particularly where these activities are filmed or otherwise recorded; ∗ clarification of context: preferably before recording begins, it is important to clarify whether the interview is live or pre-recorded; on or off the record; will or will not be edited; and will or will not be open to correction and a fresh take if the interviewee is unhappy with the question or answer or conditions maintained during the interview. it will also be important to clarify any embargo that will be observed by the media, where that is required or desired; ∗ personality, infotainment: some modern media, as stated above, trivialise serious stories and reduce them to superficial or predictable images. many questions were addressed to me concerning the emotional impact of the coi testimony of human rights abuses on me, 9 human rights and media: the experience of the commission of inquiry on north korea personally. it is important to answer such questions honestly but briefly. of course, the important issue is not the emotions of the coi member but (for crimes against humanity) the condemnation of the international community. however, a refusal to answer may seem over-proud. a well answered response may help to bring home to the audience the inevitable feeling of revulsion. it may give the response a concrete and personal edge that helps to convey the emotions which should be felt by viewers and listeners alike when confronted with certain evidence. however, the interviewee should not be misled into thinking that his or her reactions are significant in themselves; ∗ time constraints: modern media increasingly operates under time constraints shorter than was the case in earlier times. sometimes this can be irritating, as where a question is asked and, in the midst of the answer, the interviewee is interrupted to be told “we must leave it there”. the proper reaction is to attempt to wind up quickly and not to show irritation, however justifiable this might be. interviewees must also learn to be brief. often this is difficult for lawyers and other professional experts. they may know many complications and qualifications. but brevity is crucial to good media messaging; ∗ bite size: in answering questions, it is best to provide communication in bite size chunks so that the questioner can get in more questions. interviewers sometimes themselves have big egos and occasionally aspire to be, or become, “media personalities”. lawyers and other experts frequently see multiple ramifications and even potential traps in media questions. this does not provide a justification for longwinded answers, with multiple layers of qualification and elaboration. the primary rule is kiss: keep it simple stupid, the message reportedly given to hubert humphrey, an unsuccessful us presidential candidate, by his wife. it remains a good injunction. presumably he did not follow it. he lost the election; ∗ exhibiting calm: a good interviewee will remain calm, civil, polite and courteous at all times. this also exudes an image important for human rights. universal human rights are expressed with the authority of the united nations and international law. united nations mandateholders can therefore afford to be calm. they deserve to be authoritative. they are speaking in support of an important and global cause in which they themselves can only ever be a temporary and minor player; 10 the denning law journal ∗ cultural issues: it is essential to avoid discriminatory language or implications and to ensure respect for all relevant minorities and local cultures, at least so far as they conform to universal human rights. naturally, local audiences will ordinarily be proud of their cultures, society, religions and values. where these are criticised by a mandate holder, by reference to a norm of universal human rights, it should be done carefully, accurately and respectfully; ∗ gender sensitivity: it is desirable that cois undertake consultations with un women and, where possible, have a dedicated gender adviser who will scrutinise documents, including drafts for media reports and ensure attention to gender-specific issues and the avoidance of gender unfriendly language, patriarchal values or apparently insensitive appearances, attitudes or actions; ∗ training and experience: after rudimentary training and opportunities to exercise their skills non-experts can become skilled in media presentation. it is desirable that cois should have available to them experienced media advisers (as the coi on dprk did for a time). commonly, such advisers will remain present during interviews and offer constructive criticisms and comments for improvement of individual interview techniques and clarification of key messages. coi members, who may not have experience in media engagement, should not be embarrassed to ask for advice because such engagement is an increasingly important part of the work of human rights for un cois and other mandate-holders. incompetence, arrogance, hot temper, needless politicisation, unprofessional behaviour, sexism, racism, homophobia, abuse of authority and other errors must be avoided. media will often be vigilant and unhesitating in reporting such faults. on the other hand, if the coi has manifest integrity, is clearly striving to be impartial, truthful and compliant with principle, media will usually detect these features and be supportive. this is not universally so as some media outlets or individuals have their own agendas to pursue. but normally, the working journalist will have an interest in common with a coi or other mandate-holder. this is to get out a story that is brief, accurate and interesting. this is the motivation that coi members and their secretariats must engage with; ∗ human interest: the methodology of much modern media is to avoid abstract concepts and to illustrate problems with human interest stories. whilst this can sometimes be irritating and can result in superficial, personalised coverage of complex and serious issues and 11 human rights and media: the experience of the commission of inquiry on north korea repeated use of particular stories, it is also a way of rendering human rights abuses concrete and understandable for ordinary readers, listeners and viewers. coi members must therefore consider the ways in which particular testimony (especially if there have been public hearings or other non-confidential interviews) can help illustrate large points being advanced by the coi. a strength of the report of the coi on dprk derived from the fact that, on about half of the pages of the report, vivid passages are quoted from the public hearings or other interviews conducted by the coi that help to bring to life the suffering involved in human rights abuses. they do this in a way that dense text and detailed reporting might not do. moreover, such quotes can be picked up and used later, in media releases, in oral television grabs and in print media reports. they will tend to be used, and so repeated, in syndicated news items, op eds and editorial opinions; ∗ debriefing: at the conclusion of every day of work of the coi or other mandate holder’s work in the field and in public outreach it is useful to engage in a debriefing exercise so that commissioners, in consultation with the secretariat and (if there is one) the media adviser can go through the events of the day; note the main messages that emerged from those events; and review how to express those messages more succinctly and effectively in the media messages that follow. this is also a time and opportunity for secretariat officers to correct any factual errors – however small – that may have crept into media statement and comments by the commissioners. it is easy to feel irritated by such corrections. however, they are usually wellintentioned and designed to protect the mandate holder from immaterial attack based on factual errors or misstatements of the evidence; and ∗ news analysis: in addition to internal debriefing of the coi, it is desirable that assistance be provided to the coi (and other mandateholders) by way of follow up analysis of news coverage, descriptions of the "hits" on the dedicated coi/mandate website; and tweets and other social networks concerned with the coi or other mandates. a record should be kept, whether electronic or in print form, of media coverage so that this will become part of the chronological archives of the project. such media coverage, particularly if online, helps those who come later to describe and analyse the conduct of the coi and to assess the success of its investigation. 12 the denning law journal messaging and news management in most societies, it is not ultimately possible for a coi to manage the presentation of, and priority given to, its media messages. news media are properly vigilant as to their own role in news selection and presentation. nevertheless, a number of sensible rules may be observed that enhance the coverage of the desired news story: ∗ variety and new material: the coi should decide for itself upon clear themes and messages. it should also continually vary some messages in order to avoid media fatigue that will be exacerbated by repetition of old news; ∗ simple messages: it is highly desirable that messaging should be kept simple and avoid unduly complex issues of law, history and policy which may be of interest and importance to experts but of less concern to most journalists and consumers of news media. excessive detail in media releases is likely to kill media interest in the coi once and for the future; ∗ basic rules: it is usually best for commissioners to adhere to short sentences; to avoid the use of the passive voice; to stick to some clear and repeated messages; and, on the main themes of their work, to agree on language into which those messages should be packaged by the several coi members; ∗ assertions: it can be useful, where it is the fact, to assert appropriately the observance by the coi of the principles of impartiality, independence, due process and procedural fairness and to illustrate these merits by reference to the activities of the coi which can be described. for example, the point was often made that a number of the witnesses giving oral testimony to the coi on dprk insisted on their love for kim il-sung, the first member of the kim family of supreme leaders of north korea. this protestation was usually on indication of the honesty and neutrality of the witnesses. it tended to contradict the assertion by dprk that the witnesses were “human scum” and hopelessly biased against the dprk regime; ∗ appearance: it is desirable for coi members and staff to attend to basic matters of appearance for television filming: combing the hair, fixing the tie or scarf, removing nasal hairs, dusting shoulders etc. 13 human rights and media: the experience of the commission of inquiry on north korea these are simple matters but appearance is inescapably important in messaging in modern media, particularly visual media; ∗ over familiarity: some journalists seek to ingratiate themselves by assuming terms of familiarity. generally, it is best for un officers to avoid undue familiarity and the use of first names with media personnel at least whilst on film or radio interviews. without becoming pompous or appearing self-important, it should be remembered that the issues of human rights are invariably serious and too much informality or the injection of inappropriate humour will not be considered correct by most readers, listeners or viewers; and ∗ bullying: some media employees may try to pressure or bully the interviewee. this can be politely rejected and deflected. losing one’s temper whilst being filmed is not a good look. staying calm is imperative and it attracts admiration. global media and human rights appreciation: where media have helped a coi, the help should be reciprocated. in the case of the north korea inquiry, the earliest possible copies of the coi report were distributed to media on the day of release, subject to embargo. special care was taken to supply journalists who had accurately reported the hearings and activities of a coi. where media advisers have helped the coi, their help should be acknowledged both to them and to their superiors and drawn to the notice of the high commissioner for human rights. the days of regarding media as an enemy to united nations’ operations are over. especially in the discharge of human rights mandates, media can be influential in spreading the awareness of human rights abuses; alerting those concerned about the existence of a mandate and where to contact the mandate-holder(s); informing the world community of the steps taken to expose and redress serious wrongs; and raising expectations that perpetrators of human rights abuses everywhere will be rendered accountable, both before the human rights council and in follow up before appropriate institutions of international criminal justice. reports: the advances in the technology of contemporary media make it appropriate to envisage changes in the format future of hcr reports. already such reports, available online, permit links to be made to earlier reports and other relevant sources of information. in the future it may be anticipated that access will also be provided to victim statements, graphic photographs and moving film; and statistical and like data displayed in attractive format. reports quoting victims will become multimedia in character and permit the 14 the denning law journal victims to speak, directly, not mediated through the analysis of reporters. an application by the coi on dprk to the human rights council to supplement the textual/oral presentation of its oral report to the hrc with digital images containing the voices of victims recorded at its public hearings was declined by the presidency. the presidency expressed concern about potential misuse of such technology. this risk can perhaps be understood. however, because most media communication today has become multimedia, it must be expected that reports to the hrc will eventually follow suit. mobilising the enlarged potential: it behoves all, who are engaged in the work of human rights and with the ohchr, to use the potential of new technology of media more effectively. in this, i believe that high commissioner pillay (hchr) gave a particularly important lead. so, i believe, did the coi in dprk. mobilising social media: officers of ohchr are now available to advise commissioners (typically of a different generation) concerning the potential of social media to expand and enlarge access to human rights mandate reports. these can reach large and different, usually younger, audiences. they also require new styles of reporting, in terms that are briefer and sharper, with much less patience for detail. blogging and tweets: some present and future coi members may be tempted to blog or tweet their personal opinions about their work. some such messaging may not always have been sufficiently thought out. care must be observed to avoid showing prejudgment or breaching due process requirements by revealing provisional coi deliberations out of due order or accidentally breaching security. nevertheless, because many younger people secure news and information today through these means, they will undoubtedly come to play a significant part: informing interested persons about the coi or other mandate, its activities and impressions, wherever permissible. if necessary, mandate holders should seek, and obtain, professional assistance from inside the office of the unhchr on how to use new media and how to avoid the pitfalls. availability of commissioners: coi commissioners and other mandate holders should be available, and not hostile, to modern media. high commissioner pillay was particularly skilful in using global media. she thereby enhanced the worldwide awareness of the work of her office and of the independent mandate-holders who report to the hrc. problems of availablity because of the often intense work of the coi, the long hours, in some cases working in a foreign language, and the pressures of responsibility, engagement with the media may sometimes slip to the bottom of the list. 15 human rights and media: the experience of the commission of inquiry on north korea however, this attitude should be resisted because of the potential, properly performed, for media engagement to enhance and re-enforce, and not detract from, the work of the coi. a number of simple rules can be used in engagements with the media: ∗ attitudes: it is important not to regard the media as an enemy or hostile competitor. in rare cases hostility may exist or eventuate. but generally, media have an interest in common with the un officers: to spread knowledge about the work; to encourage cooperation; to raise visibility; and to promote expectations of successful and practical outcomes; ∗ deadlines: particular difficulty is often presented by media deadlines. these arise every day and at differing times of the day. coi members must, so far as they seek to interest and mobilise media, be conscious of deadlines and of their frequent inflexibility. they must strive to work within the realities of media deadlines. so far as is consistent with the fulfilment of the mandate, a coi should strive to release and embargo media releases with such deadlines in mind; ∗ competition: media interests will often be in competition. care must therefore be taken to observe even-handedness, to avoiding "favourites" and to engage with all media on the basis of equality, courtesy and mutual respect; ∗ embargoes: it is important for any embargo on the publication of a media report to be made completely clear, including by reference to relevant international time zones. likewise, it is vital to be clear where speaking to the media is "off the record" or by way of "background" only. generally such limited communications should be minimised. a coi should operate transparently and honourably; and this generally means speaking and acting on the record when both parties to the briefing know precisely what material is available for quotation and broadcast. confidential information will require protection. great care must be taken to safeguard the identity and evidence of confidential witnesses. their safety and even their lives may depend on it; ∗ photographs: it is desirable that good quality photographs of the commissioners should be available and provided by the secretariat or media officer to media interests; 16 the denning law journal ∗ informal photographs: media will often seek informal photographs or film showing the coi at work. care should be taken to check any surrounding personnel or witnesses; background images and potential embarrassments; ∗ media officer: wherever possible, a dedicated media officer (or ohchr media personnel) should be engaged to assist the coi and to propose successive cycles of media releases and interviews for consideration by the commissioners as the work of the coi unfolds; ∗ establishing website: a dedicated website for the coi should be established soon after its establishment. onto this website should be posted regular updated materials concerning the program and activities of the coi; and ∗ variety of voices: it is desirable that a variety of voices for the coi should be heard. this will involve deflection of particular questions at a media conference, for example, so that all commissioners become identifiable and bring their several interests and talents into play. diversion of questions to other commissioners should be carried out, preferably with their prior concurrence. in the presentation of the oral report of the coi on dprk to the arria briefing of the security council on 17 april 2014 in new york, the course was adopted of dividing the oral remarks so that each commissioner spoke. this ensured that a variety of voices was heard. it relieved the potential monotony of a single voice. it demonstrated the unity, and also any special interests, of the coi members. in particular, in the case of the coi on dprk, it allowed the highly responsible role of women in the coi’s work to be clearly demonstrated. conclusion: beneficial symbiosis i pay a tribute to the commissioners and secretariat of the coi on dprk for their industry, adaptability and willingness to innovate in relation to media engagement. the coi demonstrated clearly that no country today can pull down the shutters and prevent the scrutiny of its human rights record by the united nations, simply by refusing to cooperate. a commission of inquiry today may cross even the most hostile border. it may negotiate the loftiest prison walls and bring the message of human rights abuses to the notice of the world through global news media and the internet. nowadays, as was said in the context of dprk, no one has an excuse to say they do not know of human rights abuses brought to light by the united nations. now we all know. and 17 human rights and media: the experience of the commission of inquiry on north korea that knowledge propels us to seek to address, and to demand, accountability: justly, effectively and quickly. it is still too early to judge the success of the coi on dprk. all of the commissioners insisted that success was not to be assessed simply by reference to the provision of a report, however well written and widely covered. success depends on positive outcomes on the recommendations made by the coi: an improvement in the human rights situation for the people of korea; an enhancement of cooperation by the state concerned with the ohchr, the hrc, the general assembly and the security council; and greater knowledge and understanding of the situation in dprk in the wider world. judged by these criteria the coi on dprk chalked up a number of achievements. several of these lay in the context of engagement with the media. the full story is yet to be written. 18 abstract increasingly un human rights mandate-holders are engaging with diverse modern media to enhance the effectiveness of their work. there are dangers and difficulties in doing so. however modern media can be a useful ally in the work of the un by raisin... media and human rights: natural bedfellows? establishment and methodolgy adopting a media plan some basic rules messaging and news management global media and human rights problems of availablity conclusion: beneficial symbiosis unincorporated associations: property holding, charitable purposes and dissolution 89 denning law journal 2012 vol 24 pp 89-115 to every thing there is a season and a time to every purpose under the heaven – a time to be born and a time to die. 1 natural law, emotion and the right to die. bob watt  introduction here we will discuss the „right to die‟; should a person, in certain circumstances, lawfully be able to call upon the assistance of another to bring their life to an end? the proposal is that the answer should be „yes‟ , but the novelty of this essay is in its argument that such an answer can be provided by a „natural lawyer‟ which is to say a person who believes that law has some minimal, inescapable, moral content. this answer is quite contrary to that proposed by professor john finnis, the leading modern exponent of natural law theory. the matter is of particular relevance because of the recent death of tony nicklinson who unsuccessfully sought a declaration that a doctor would not face prosecution for giving him a lethal injection. the high court declined to issue such an order saying that parliament would need to give specific statutory authority for such a step. 2 a draft statute is provided near the end of the article in order to stimulate supply of the high court‟s request. the practical argument herein is therefore addressed, at least in part, to parliament, but the criticism of john finnis‟ theory will, it is hoped, appeal to an academic audience. this article aims to restore emotion to its proper place 1 ecclesiastes 3:1. ecclesiastes (hebrew qoheleth), which must not be confused with ecclesiasticus (sirach), is an ancient book of philosophy of disputed authorship and provenance included in the christian bible. the burden of the text is that life is bounded by birth and death, there being no after-life, and life has no extrinsic meaning; these views are incompatible with the generally understood doctrines of christianity and are those held by the author.  r awatt, ba, bcl, phd; professor of law, university of buckingham, hunter st buckingham mk18 1eg. i am grateful to giovanni agrusti, dr phil larkin, dr graham melling, dr sarah sargent, tim sinnamon, the editor, and the anonymous referees for their helpful comments. none of them should be taken as supporting, endorsing or, for that matter, opposing the arguments set out herein. 2 [2012] ewhc 2381. right to die 90 as a tool for evaluating human practice, 3 and thus claim that emotion has a place alongside reason as a basis for law as an institution, the drafting of particular laws, and adjudication. reference to poetry, music, and myth are used in order to illustrate the claim that humans are uniquely emotional beings and to illustrate the argument being made.. these are not idiosyncratic „addons‟; in an ideal world all of the music and poetry would have been embedded in the text of the article because they communicate some of the ideas herein more effectively than discursive argument. 4 the reader is urged to listen to all the music and to read the poems and myth in their entirety. furthermore lawyers and philosophers are trained to analyse words; the words of the poetry and music are not of paramount importance. the reader is asked instead to consider the affect raised. there is an essential preliminary point. some readers may be surprised to find that this article does not contain a detailed analysis of the nicklinson decision. this must be explained. tony nicklinson was obliged to bring this matter to court because he was anxious to avoid prosecution of any physician for bringing his life to a swift, peaceful, and painless end in accordance with his wishes. the courts, however, are creatures of reason and precedent and are unable to consider questions of emotion. 5 since tony nicklinson‟s argument was founded upon matters which judges qua judges are precluded from considering, 6 it is unsurprising that the decision is little more than a recitation of the law as it presently stands. the novelty is in the referral to parliament and this is addressed below. 3 a project also undertaken by michael stocker who, with elizabeth hegeman, is “concerned to normalize and rescue emotions, and to show that they enjoy secure and respectable connections with value, in part because of their important cognitive, evaluative and desiderative content.‟ see valuing emotions (cambridge: cup, 1996). henceforth ve. the quotation is from p 6. 4 stocker ve above n 3, p 6 makes a similar stylistic point. 5 see the strong statement expressing this view in another context by atkin lj in balfour v balfour [1919] 2kb 571 at 579 “the common law does not regulate the form of agreements between spouses. their promises are not sealed with seals and sealing wax. the consideration that really obtains for them is that natural love and affection which counts for so little in these cold courts.” 6 as they were precluded from commenting upon behaviour in re agar-ellis (1883) 24 ch d 317, see bowen lj at 335: „this is a case in which, if we were not in a court of law, but in a court of critics capable of being moved by feelings of favour or disfavour, we might be tempted to comment, with more or less severity, upon the way in which, so far as we have heard the story, the father has exercised his parental rights.” the denning law journal 91 the one dimensional (hu)man – a kind of desiccated calculating machine 7 john finnis, 8 whether consciously or not, concedes john mackie‟s central claim 9 that there are no objective moral values “out there”. it would be very queer, 10 if, whilst running through the buckinghamshire countryside, we were to come upon a „good‟ or an „evil‟ in the same way as we might come upon a sheep or even, as at maids moreton, an alpaca. surely no one now thinks that there are forms awaiting discovery somewhere outside our present shadowy cave. 11 we can take it that finnis has a true aim when he writes that there are “human goods” and one cannot produce an adequate theory of law unless one “participates in the work of evaluation, of understanding what is really good for human persons”. 12 “goods” – things to be desired and actively sought and “evils” – things to be shunned exist only in the human mind as abstract concepts against which we evaluate our “actions, practices, habits, dispositions and ... discourse” 13 and thus, at some time, our ancestors must have invented them or they must have evolved in our ascent from lowlier forms of life. this is not to claim that they engaged in some definite act of creation from nothing, or that they sat down on some dank afternoon and exhaustively defined good and evil. law, as a uniquely human institution, must depend to some extent upon our nature. hence part of the claim is that, and here finnis would agree, there are identifiable human goods which stem from our nature as human persons. 14 the quarrel with finnis stems from the fact that he seems to have ducked an important second order question. he has 7 the remark is attributed to aneurin bevan and is alleged to have been directed at hugh gaitskell. 8 in j finnis natural law and natural rights (oxford: clarendon, 1980) (henceforth nlnr). there is a famous comment made by john mackie in ethics: inventing right and wrong in which he praises those with whom he disagrees; see p.10 and the obituary notice in the university college record. may i echo that remark, and say that my comments on others‟ work, which i trust are not barbed, are offered in a spirit of respectful, scholarly dispute? 9 see j l mackie ethics; inventing right and wrong (harmondsworth: penguin, 1990). (henceforth eirw). 10 mackie eirw above n 9, pp 38-42, section headed “the argument from queerness”. 11 the influence of platonic thought on the development of modern natural law theory will be considered below. it will be argued that plato and aristotle have cast a long shadow. stocker, ve above n4, at p 7 takes a different view of aristotle arguing that his work places “affectful emotions” and “psychological concerns” at the centre of his ethical views. 12 finnis nlnr above n 8, p 4. 13 finnis nlnr above n 8, p 4. 14 see his discussion in nlnr above n 8, p 34. right to die 92 identified “goods”, but on the basis of a thin, or one dimensional, conception of humanity; he has failed adequately to address the question of humanity. this is a fatal omission: how can one possibly expound a doctrine of natural law that which is good for humankind unless one explores the nature of humankind? the central reason for finnis‟s reluctance so to do is his exclusive (or better – exclusionary) adherence to a neo-stoic conception of humankind in which the good life is recognised by reason. 15 cicero‟s adage “true law is right reason in accordance with nature” would provide a fitting epigraph to finnis‟ book when one notices that in the following passage it is clear that cicero sees reason as the mechanism whereby humankind discerns the order, or way of life, which god put into the universe. 16 if one rejects cicero‟s and finnis‟ theism one is obliged to seek value in some other source. here emotion is seen as the source of value. (a) natural law – some analytical preliminaries. there are some important, preliminary points to be made. the concept of „natural law‟ is used in the sense that law must, in order to serve the purposes of mortal (the word is of vital importance) humankind, 17 contain definite substantive principles, “the truth of which is contingent on human beings and the world they live retaining the salient characteristics which they have.” 18 by natural law is meant, the law by which humans ought to live so that, in accordance with their own nature as human, they may thrive as individuals and as the ζώον πολιτικόν, the animal which lives in society. it is our job, whether as legislators, lawyers, academics or ordinary citizens and voters, to participate in the debate about making law. 19 second, the practice of law in its widest sense has two distinct components which are relevant to this article – legislating and judging. regarding legislation, analytical jurists have explained that law (legislation or quasi-legislation) is a system of norms (ought statements) whose function is to provide pre-emptive and exclusionary advice as to how we should behave in 15 finnis nlnr above n 8, pp 371-410, especially pp 374-379. 16 cicero de republica iii. 22 17 see a local authority v e and others [2012] ewhc 1639, para 137 per jackson j “we only live once – we are born once and we die once – and the difference between life and death is the biggest difference we know.” 18 h l a hart the concept of law (oxford: clarendon, 1961) p 195. 19 see the discussion in nlnr above n 8, pp 371-378, and the alternative reasoning set out below. it will be argued that h l a hart‟s discussion in the concept of law above n 11, the minimum content of natural law, pp 189-195, is a useful, although incomplete, starting point. the denning law journal 93 order, primarily, to avoid a sanction. 20 it is important to note that law as a system of norms is directed to governing behaviour; those statements aimed at involuntary status (such as the apartheid “laws” of the republic of south africa or the nazi nuremburg “laws”) may have been contained in legislation, but they were not “laws”. they are a species of command „kill jews‟ is repugnant shorthand for the nuremburg commands. no matter what a black person or a jew did, s/he would still be subjected to tyranny. it seems that norms (or laws properly so-called) may logically fall into one of six categories. 1) a norm may be properly drafted such that it may reliably guide human behaviour into performing action which is consistent with human ends. (a perfect norm.) 2) a norm may be intended to guide human behaviour into performing action which is consistent with human ends, but is poorly drafted. (a faulty norm.) 3) a norm may be intended to guide human behaviour into performing action which is inconsistent with human ends and is properly drafted. (a false norm.) 4) a norm may be intended to guide human behaviour into performing action which is inconsistent with human ends and is poorly drafted. (a faulty false norm). 5) a norm may have no effect on human ends and is properly drafted (for example – a norm which requires potatoes to be sold by the kilogram or pound; a regulatory norm.) 6) a norm may have no effect on human ends and is poorly drafted. (a faulty regulatory norm.) in this article we are only concerned with the relationship between 1) perfect norms and 3) false norms. all faulty norms (numbers 2), 4), 6)) may be repaired, and the regulatory norms 5) and 6) may fall completely outside the scope of the analysis but, in any event, they will not concern us here. we have no reason to doubt that both perfect norms and false norms are both amenable and subject to the ordinary processes of the courts; the processes of judgment. if we select that which professor finnis would undoubtedly claim to be, a false norm, 21 the abortion act 1976, we can see that the act can be explored and analysed by the courts. the latest case being mary teresa doogan & concepta wood, petitioners for judicial review of a 20 joseph raz “the authority of law” in the morality of freedom (oxford: oup, 1988). 21 there is no comment on this claim in this article. it will be fully explored in subsequent articles. right to die 94 decision of greater glasgow and clyde health board. 22 this case explores the extent or definition of part of a norm contained in the act. an earlier case which explores the application of another of the constituent norms is re ss (an adult: medical treatment). 23 these cases demonstrate that the handling of potentially false norms by courts does not necessarily differ from the treatment of perfect norms at the level of judgment. a judge‟s duty is, of course, to give judgment according to the law. the same judge may, qua private citizen, believe that the law is wrong. the judge as citizen may think that permitting abortion under the 1967 act is a false norm, but it is by no means certain that s/he does so on rational grounds, any more than it is certain that those opposed to abortion who rely upon s4 (1) – the conscience clause – of the 1967 act are opposed to it on rational grounds; they may simply feel revolted by the idea of, as they see it, participating in the death of a child. in plain words, the falsity of a norm is judged by applying standards which include the rational, but which may include other standards. judges are bound to apply the law which is prima facie a coherent system of reason, but the law itself may be judged. in the case of abortion the law allows potential participants to recuse themselves in certain cases, 24 by means of their emotional judgement. parliament recognised in passing the 1967 act that it could not rightly force people to behave against their own feelings in such a sensitive matter. parliament as legislator acknowledged that people behave as whole beings in both acting and judging. it seems strange to do otherwise. thirdly, and this point flows from the second, the serious question of moral philosophy is, as benn and peters point out, the question of the rightness of rules. 25 benn and peters assert that we can measure the rightness or otherwise of a rule by the effect upon the interests of others. however, people do not just consider the interests of others when they act. they consider their own interests and, more importantly, they consider themselves and others simpliciter. they do not act to benefit another or themselves in any 22 [2012] csoh 32. 23 [2001] all er(d) 220. 24 a justification of the circumstances in which they cannot recuse themselves, as set out in s 4(2) of the 1967 act is supposedly provided by the doctrine of „double effect‟ in which the unwilling abortionist is said to think “i am not killing the baby because i do not desire to kill the baby; i am saving the life of the mother.” the present author does not accept that this is a rational doctrine (although it is a very powerful emotional one and, accordingly, both valuable and acceptable). it is a doctrine akin to that which leads to the apocryphal story that members of a firing squad are issued with one blank bullet so that those who wish so to do may convince themselves that they did not participate in the killing. the doctrine of double effect is further explored below. 25 s i benn and r s peters social principles and the democratic state (london: george allen and unwin, 1959) p 32. the denning law journal 95 specific way; in the best of circumstances they act out of love for another, in the worst, out of hatred. (b) emotion the aim of this article is to use a richer and more accurate conception of humanity in order to explore one of finnis‟ goods; that of life. 26 there is no question that, in the sunny daylight, life is anything less than a good; however as the shadows lengthen (for whatever reason) life may become an evil. 27 in accordance with finnis‟ powerful statements, this can only be understood by those who participate in the work of evaluation; but this evaluation needs to be undertaken by a whole person. to start this task of rehabilitating emotion a setting of poetry to music will be used as an example of the way in which continued life may be seen as an evil rather than a good. the device of “lengthening shadows” in the earlier paragraph was chosen because of its resonance with “at gloaming”, im abendrot, in the setting of joseph von eichendorff‟s poem to the last of richard strauss‟ four last songs. 28 we have gone through sorrow and joy hand in hand. now we can rest from our wandering above the quiet land. around us, the valleys bow; the air is growing darker. 26 subsequent works will explore some of finnis‟ other goods and, indeed, his other arguments as to the nature of a good. these essays will, as in this case, produce some conclusions which differ radically from those which he reaches. 27 the almost poetic quality of justice steffen‟s words in mckay v bergstedt (1990) 801 p ed 617 (nevada supreme ct.) 2 at p 5 are worthy of note: “one of the verities of human experience is that all life will eventually end in death. as the seasons of life progress through spring, summer and fall, to the winter of our years, the expression unknown to youth is often heard evincing the wish to one night pass away in the midst of a peaceful sleep. it would appear, however, that as the scientific community continues to increase human longevity and promote “the greying of america” prospects for slipping away during peaceful slumber are decreasing. and for significant numbers of citizens like kenneth, misfortune may rob life of much of its quality long before the onset of winter.” this passage is quoted quite poignantly by dame elizabeth butler-sloss p at para [29] of ms b v an nhs trust [2002] ewhc 429. we will return to this theme at the end of the article with a quotation from rupert brooke‟s choriambics i. 28 for ease of listening view http://www.youtube.com/watch?v=ppoquvlkkbu . in order fully to appreciate the point the reader is urged to listen to herbert von karajan‟s recording with gundula janowitz and the berliner philharmoniker. deutsche grammophon 447 422-2. http://www.youtube.com/watch?v=ppoquvlkkbu right to die 96 just two skylarks soar upwards dreamily into the fragrant air. come close to me, and let them flutter. soon it will be time for sleep. let us not lose our way in this solitude. o vast, tranquil peace, so deep at sunset! how weary we are of wandering --is this perhaps death? arguably the third of the songs, a setting of hermann hesse‟s “going to sleep”, beim schlafengehen provides a stronger text, but it lacks the power of the final dusky chords on the strings lifted by the trills on the flute. 29 the point is important because it demonstrates that words, often the vehicle of reason, lack the communicative power of music which appeals to us upon an emotional level. this is the point made in the introduction to this essay. it is not to say that music lacks reason; indeed it has its own internal logic demonstrated by the art of the great composers. the rational or technical art of composition is the conveyance of emotion, but it is the emotion which affects the ordinary listener. the charge is that john finnis elevates the place of reason as the driving force of human action, which to say practical reason, to a position far beyond that which it does occupy and that which it should occupy. despite the fact that he is well aware of the fact that reason may be perverted, in, for example, the schemes of mass-murderers; 30 he seems to insist that one can grasp “(f)rom one‟s capacity to grasp intelligently the basic forms of good as „to-bepursued‟” and amongst these forms of basic good is “life”. 31 the argument against him is that it is not at all clear that the good of life is either to be “grasped intelligently” in all circumstances, and, indeed, whether “intelligence” is the best or even the most appropriate way of ascertaining the good of life. the point is that it has been appreciated, at least since the time of plato, that human perception and action is not solely based upon reason. whilst plato and many of those following him elevated reason to the highest position in human understanding, the most appropriate basis for action, and the foundation of judgement, it is not clear that this is invariably correct. 29 the idea of approaching death approaching is first raised in the second of the songs „september‟, but the present author finds that particular song unnecessarily miserable. if we need a song about september, kurt weill and maxwell anderson‟s september song recorded by ella fitzgerald and paul smith on verve jazz ‘round midnight 511 035-2 is much to be preferred. we are not considering the september of a person‟s life in this article; we are considering the cold, bleak end of december after all joy has departed. 30 finnis nlnr above n 8, p 134. 31 finnis nlnr above n 8, pp 85-86. the denning law journal 97 humankind is not composed of desiccated calculating machines, and it would be much the poorer if that were to be the case. the whole person herbert hart has rightly recognised that men are neither devils nor angels; 32 clearly too they are neither calculating machines, nor beasts ruled solely by instincts and passions. plato pointed out in the republic 33 that one might think that the human soul was divided into two parts the rational and the appetitive – but closer examination led one to further divide the appetitive soul into the spirited soul, in which were located the emotions, and the (true) appetitive in which were located the basic desires. plato uses the person and the city state as mutual similes or models and claims that the state should be ruled by the wise, the rational guardians, supported by the spirited technocrats, and they should keep the base workers in check. rationality or reason is seen as the philosopher –king at the level of both the individual and the polis. the problem with reason is, as we have seen finnis points out, 34 that the most highly rational operations such as the drafting of complex train timetables by, eg, adolf eichmann, to send people to extermination camps mask the most hideous evils. we do not blame such people for being irrational, for we can see the perverse rationality of their actions. we are sickened by them at a visceral level; we view them as cruel and „heartless‟. the notion that the heart is the seat of emotions is not due to the purveyors of modern valentine cards, but is of ancient origin. we can weigh emotions almost instinctively, because emotionality – the capacity to feel emotionis one that all people save the psychopath share. it is thus suggested that the proper tool for weighing emotion is itself emotion. attempts have been made to weigh emotion by means of reason, but this has produced some grotesque answers. aristotle tries to claim that sex, as an example of the licentious pleasure of touch, is part of our low, brutish, animal nature. 35 this is simply silly, for a reason pointed out by jacob bronowski in his brilliant the ascent of man. bronowski writes: 36 32 hart above n 13, p 191. 33 plato the republic, university of pennsylvania e-publication http://www2.hn.psu.edu/faculty/jmanis/plato/republic.pdf ed j manis. see book 4, the dialogue between plato and glaucon pp 84-85 34 above n 15. 35 aristotle ethics (london: penguin, trans. thompson rev. 1976) iii8b. 36 and in the sense that a picture paints a thousand words, he illustrates his point with pictures of the great rationalists james watson, marie curie, louis pasteur, albert einstein, ludwig boltzmann, max born, niels bohr and john von neumann with right to die 98 most of the world‟s literature, most of the world‟s art, is preoccupied with the theme of boy meets girl. we tend to think of this as a sexual preoccupation that needs no explanation. but i think that is a mistake. …sex was invented as a biological instrument by (say) the green algae. but as an instrument in the ascent of man which is basic to his cultural evolution, it was invented by man himself. spiritual and carnal love are inseparable. a poem by john donne says that: he called it the extasie, … 37 following this we can easily say, for example, “death was invented as a biological instrument by (say) the sponges or the jellyfish. but as an instrument in the ascent of man which is basic to his cultural evolution, it was invented by man himself.” death is not only a physical and a cultural phenomenon, it is also an emotional one which is not reducible to reason. emotion is immediately affective and is not mediated or reducible to reason. 38 we have seen above the words to im abendrot, which we may take as an example of the cultural significance of death. amoebae, which divide by binary fission and thus cannot be said to undergo a normal death would have no grasp of the significance of the „vast tranquil peace‟ of sunset and would not (if they were able to) bother to write the poem or compose the music. 39 indeed it might be that as much of our culture would disappear if we abolished death as if we had abolished sex. more importantly for our present purposes, imagine the effect upon our inner world if we abolished sex and death; we would have no need and no place for the emotions of love or grief. human „death behaviour‟ is as far removed from animal „death behaviour‟ as human lovemaking is from animal rutting. the fundamentally simple claim is that we can only understand death as a human phenomenon by means of its emotional significance. we certainly do not fully understand it by means of reason, although much of our mythology their (intended) spouses. see below n 37, p 406 ff perhaps the present author is a sentimentalist, but the song if written by paul heaton, scott shields and martin slattery expresses the emotion more clearly than argument. http://www.youtube.com/watch?v=1jhew8npbca&feature=related . 37 jacob bronowski the ascent of man (london: bca/bbc; 1977) p 406. there is insufficient space to quote the 500 words of donne‟s poem here. readers are recommended to read it at http://www.luminarium.org/sevenlit/donne/ecstacy.htm . 38 stocker v e see pp 38-51. argument in favour of this assertion is set out below. 39 a similar point is made by ludwig wittgenstein when he observed that “if a lion could speak, we would not be able to understand it”. duncan richter in his essay entitled “ludwig wittgenstein 1889-1951” http://www.iep.utm.edu/wittgens/ draws attention to the fact that emotionality is an important element in the formation of values. the denning law journal 99 is devoted to attempting just that impossible feat. we can certainly understand death as a biological process, as a social process with legal consequences, and we can reliably predict the emotional consequences and their physical results; but we do not cry any the less at the death of a loved one. the interesting point is that the overwhelming majority of readers understand the point exactly. we mourn because we understand, at an emotional level, the sadness of death; we can understand and weigh emotions because we share them. our understandings of the extasie and im abendrot grow as we experience love (with its physical and emotional faces) and the death of, for example, our parents. the bringing together of love and death in im abendrot, which richard strauss wrote for himself and his long-time wife, the soprano pauline de ahna; or ovid‟s story of baucis and philemon 40 allow us to contemplate, or emotionally rehearse, our own death and that of our spouse. humankind can, and does, communicate its emotional life within its membership and the overwhelming majority of humanity has stories which allow us to share these feelings. arthur schopenhauer in his work on religion points out that religion purports to provide an explanation and, where necessary, consolation for the vicissitudes of life; most importantly an understanding of death. 41 humankind, perhaps uniquely amongst the animals, communicates and feels the emotion of our fellows. we have no evidence that any other creature is empathic, and we are certain that no other creature is empathic in the same way. to admit plato‟s claim that such humanity is a feature of our more primitive, appetitive, soul is erroneous. even marxist theoreticians, for all their insistence upon rational scientific laws of human history and conduct acknowledge the importance of human emotion. cornforth writes: 42 men are not divided into a degraded material and a higher spiritual part, and need no supernatural help or guidance. yet their needs are not confined to material needs in the sense of requirements for the biological functioning of human bodies and the continuation of the species. the characteristic human need is for personal relations with other people. people need human companionship, sympathy, assistance and co-operation first of all to produce together the material means of life and then, on that basis to develop and enjoy the activities and fruits of human culture. while none of this is possible unless elementary material needs are satisfied (so that to preach that material 40 ovid, metamorphoses viii. 41 see, generally, arthur schopenhauer religion: a dialogue, http://www.gutenberg.org/ebooks/10833 42 m cornforth communism and human values (london: lawrence & wishart, 1972) p 35. right to die 100 satisfactions are worthless in comparison with “spiritual” ones is utterly repugnant to the development of human needs and human personality), the material needs of men are themselves humanised and transformed into specifically human as distinct from animal needs. thus people do not simply need food but need it artfully prepared and served, they do not simply need clothing and shelter but fashions and architecture, and they do not simply need sexual intercourse, but the art of love and human relations between the sexes. let us now consider the relation between reason and emotion. some writers take the view that emotions are reasons. indeed they are, but of a very special sort. this is best elucidated by examining joseph raz‟s view of emotion at the beginning of his practical reason and norms where he writes: 43 as well as reasons for action there are reasons for beliefs, for desires and emotions, for attitudes, for norms and institutions and many others. of these reasons for action and for belief are the most fundamental types of reasons, the others being derived from or dependent upon them. reasons are referred to in explaining, in evaluating and guiding people‟s behaviour. the concept of a reason is used for various other purposes as well, but these three are primary and the rest are derived from or dependent on them for example, we say on the appropriate occasion that john married mary for her money, that people should marry for love only and that therefore since john acted for the wrong reasons he behaved badly and derek should not do the same. the first disagreement with this text is with the sentence “of these reasons for action and belief are the most fundamental types of reasons, the others being derived from or dependent upon them.” if this text is understood correctly, it seems that raz‟s own example contradicts his text; and reflects, instead, the position being taken here. the act of marrying is acting for a reason; marrying for love is acting on the reason of an emotion, and we judge it differently from acting upon another emotion – greed. one could plausibly argue that greed is a more complicated emotion than love because greed requires calculation rather than merely acceptance. however, at base we have love and greed and these emotions are plainly fundamental to reasons for action; reasons for action depend upon them. 43 joseph raz practical reason and norms (new jersey: princetown up, 1990) pp 15-16. it is necessary to quote two sections of the text in full because there are fundamental disagreements with professor raz‟s argument. see the comment at n 8 above. the denning law journal 101 the second disagreement with raz is that whilst it is true that a reason is used in evaluating john‟s behaviour, it is somewhat of an understatement to say that it is merely “referred to”. if john married mary because he is a grasping gold digger rather than a lover, we are making an emotional evaluation of john. john, if he were – however unlikely this may be open and honest about his veniality, is a corrupt and rotten person from whom we would instinctively recoil. “i only married mary for her money, she means nothing to me, you can buy me if you pay mary off and give me more” is hardly likely to endear him to us; whilst if mary were to acquiesce in this behaviour saying “yes, i know john doesn‟t love me. i just keep him on so i can use him for sex and chores; he‟s worth every penny”, it would lead most of us to shun them and reflect that perhaps they were just right for each other. no doubt some readers will now say “but you are making a moral judgement about john and mary‟s behaviour; if they wish to behave like whores, they should be free so to do; apart from which how do you know that their behaviour is wrong?” the simple answer to the question is because of my emotions which concur with the emotions of mature people. here, plainly, the argument comes very close to that advanced by john finnis, 44 the difference between my argument and that advanced by finnis is that he wrongly grounds his argument in reason rather than emotion. the first sentence of the imaginary critique must also be answered. no doubt people should be free to act as they wish in their private lives and i might well take the tolerant view that, even though i find their behaviour sickening and wish to have nothing to do with john and mary, they ought to be allowed to get on with their behaviour. private lives of private people are personal matters and prying into them is no more than prurience. 45 we think of john and mary as emotionally abnormal, as deficient or crippled, and, if we are charitable or convinced that they got into this state because of some illness or accident, we might seek for ways to help them, but in the last analysis we should recognise, along with john stuart mill, that they are the best judges of their own lives. the most sophisticated and persuasive account of the relationship between the emotions and reason is that provided by david hume. 46 after showing that reason (properly so called) does not provide motivation or impetus for any action, but that it purely serves to provide the means to do that which we have already chosen to do and later describing reason as „the slave of the passions‟, he goes on to show how the „quiet passions‟ are easily confused with reason 44 see nlnr above n 8, pp 31-32, pp 102-103 and p 128 in his discussion of the spouadios where he refers to the root of his argument in aristotle‟s nichomachean ethics in bk1iii. 45 this is no more than a restatement of js mill‟s harm principle. 46 see david hume a treatise of human nature part 3 sec iii “of the influencing motives of the will” http://www.gutenberg.org/files/4705/4705-h/4705-h.htm right to die 102 but that the passions are fundamental. a simple thought experiment is helpful – ask yourself why you love your „real love‟. 47 the question is unanswerable. john may have married mary for her money and could only truthfully answer to that effect; he would be unable to explain why he loves, for example, jane. he cannot go back further than „love‟. he can use it to explain his practical reason – why he has bought her jewellery – but he cannot resolve love further. he may be able to describe love more accurately in terms of mental, physical, physiological or biochemical effects, but he still cannot go beyond the emotion. another example may be useful. in recent years the phrase “inappropriate touching” has gained currency. it is most often used to describe the wrongful touching by adults of children‟s sexual organs. it is suggested that the bland adjective “inappropriate” is wholly inappropriate. whilst the preceding sentence is to say the least – inelegant it is accurate. the second use of the word “inappropriate” identifies the first use as inaccurate or incorrect – it does not connote emotional evaluation. it is more natural to describe such abuse as “revolting”, “disgusting” or, in the sense that it ought to give rise to shame on the part of the toucher, “shameful”. the coldness or lack of affect introduced by the phrase “inappropriate touching” reduces the wrongdoing to the level of a grammatical slip or minor traffic violation. one might almost think that the act was rendered less wrongful by the description than a breach of good manners because the judgement of manners involves the judgement of character. hume asserts that certain passions or emotions are „implanted‟ into human nature and, whilst the use of that particular past participle is contested –„have evolved‟ is preferred – there is no reason to doubt that hume is, in essence, correct. these emotions are basic and cannot be reduced to reason. plainly such emotions have their „dark‟ mirror images – hate and so forth, but most of us can distinguish between the virtuous and the vicious emotions and can judge ourselves and others by them even in the face of confusion introduced by reason. uniquely in the animal kingdom we enjoy recognisable emotional attachments to members of our own species, other species (our keeping of pets, our love of wildlife), inanimate objects (either as symbols, when we invest, eg, a wedding ring with sentimental value, or in themselves “i love the countryside”) or countries and nations (such as in patriotism). human beings do not only identify themselves as members of a species 48 , they identify themselves (at least in part) by means of their emotional relationships to animate and inanimate objects in the world. it is now time to pull the threads together: 47 spouse, partner and so forth. 48 see for a clear account of the elusive concept of species being, jacob held marx via feuerbach: species-being revisited (2009) 39 idealistic studies 137-148 the denning law journal 103 1. humans are not only rational beings, but also emotional beings. our emotions are not some primitive element of our nature “left over” (as it were) from our animal past, but are a distinct and valuable facet of our human nature. 2. our emotions are at the root of our engagement with the world; they not only facilitate our understanding, interpretation, explanation and evaluation of ourselves, the human world and the world in general, they provide some ultimate and particularly powerful and inexplicable reasons for action. 3. emotions are „shared‟; we can understand another person‟s emotion; sometimes to the extent that powerful emotions such as love and our response to, or understanding of, death are fundamental to our culture. john finnis points out that the whole point of law is to give effect to practical right-mindedness and to establish good and proper order amongst people and in individual conduct. 49 law can only have this effect where it takes account of our emotional nature. to a great extent it does so; demonstration of this fact extends to areas beyond the scope of the present work. the problem is then to show how it ought to deal with emotion in cases of euthanasia. assisted suicide suppose that someone comes to a mature emotional decision to bring their life to an end and acts upon it. albert camus claims that suicide is the only important philosophical question; 50 whilst one reading of this view and the arguments which led camus to it, are strongly disputed below, it does imply one essential truth. deliberate suicide is a uniquely human action. the implications of this are considered below. john finnis seems to suggest that suicides should be resuscitated tout court; the author has even heard it suggested (by a very junior doctor) that the correct medical response would be to resuscitate a suicide and then apply for an order under s2 of the mental health act 1983 since the person clearly constituted a danger to themselves. these are the responses of totalitarians if they are really advocating compulsion, or people afflicted with the worst kind of moral nosiness if they are simply interfering. the courts, thankfully, take from time to time a much more realistic and humane view. firstly, we need to eliminate those cases in which a person is not able to come to a mature 49 see nlnr above n 8, p 18. 50 albert camus the myth of sisyphus and other essays (trans justin o‟brien, 1955) http://www.josephkenny.joyeurs.com/philtexts/camus/myth%20of%20sisyphus-.pdf right to die 104 decision. in the difficult case of a local authority v e and others 51 the high court held, on the evidence that ms e should be subjected to compulsory feeding because she had lost the capacity under the mental capacity act 2005, because she had become so incapacitated by her lack of nutrition and dependency upon alcohol and opiates, to make a proper decision for herself. on the other hand in ms b v an nhs hospital trust 52 the high court held that ms b had the capacity to require that her artificial ventilation be discontinued and that she had been treated unlawfully during the time in which artificial ventilation had been imposed upon her. ms b‟s case is possibly the most valuable in this area. ms b was 43, well educated, and before her illness held a very senior position in a profession ancillary to medicine. she suffered two haemorrhages in her neck as a result of the malformation of some important blood vessels and was left with catastrophic injuries. despite excellent medical care she was left in the condition set out in paragraph 38 of the judgment: 53 her present situation is that she is paralysed from the neck down. she is conscious and capable of speech with the assistance of a speaking valve. she can move her head and use some of her neck muscles, but cannot move her torso, arms or legs at all. she is able to eat and drink. she is totally dependent on her carers, who feed, clothe and wash her and assist with her bodily functions. her life is supported by artificial ventilation through a tracheostomy, a tube in her windpipe. without the help of artificial ventilation, according to the medical evidence, she would have a less than 1% chance of independent ventilation, and death would almost certainly follow. ms b wanted the ventilator switched off. she sought a declaration that the use of the ventilator keeping her alive constituted an unlawful trespass and sought (nominal) damages for trespass to the person. the court accepted without serious question, though with a careful examination of the authorities, that a person has: an absolute right to refuse to consent to medical treatment for any reason, rational or irrational, or for no reason at all, even where that decision may lead to his or her own death 54 51 [2012] ewca 1639. 52 [2002] ewhc 429 (fam). 53 [2002] ewhc 429 paragraph 38. 54 see para 20 of the judgment referring to in re mb (medical treatment) [1997] 2flr 426, sidaway v board of governors of the bethlehem royal hospital and the maudsley hospital [1985] ac 871 and re t (adult: refusal of treatment) [1993] the denning law journal 105 the only qualification placed on „person‟, and the point is crucial, is that such a person must be mentally competent. most of the argument in ms b‟s case concerned her mental competence, and once she had been held to be competent, the decision to allow her to terminate the trespass flowed naturally. 55 the most interesting point in ms b‟s case is that death would follow rapidly upon switching off the ventilator. brain damage occurs after three or four minutes of anoxia; this becomes permanent after about five minutes, and is invariably fatal within one quarter of an hour. one might reasonably expect that ms b would be sedated whilst the machine was switched off and she died, rather than leave her body gasping automatically for breath whilst she was fully conscious. whilst this would be briefly distressing for ms b, although she would have no abiding memory of the pain, it would, undoubtedly be very distressing for the medical staff. the president averted to this fact when she said at paragraph 100 viii) that if the doctors concerned in the procedure to end ms b‟s life had objections to it that it was the duty of the hospital to find other doctors. 56 (a) act/omission and double effect. there are three angles from which one could view the act of euthanasia: from that of the “victim”, that of the victim‟s loved ones and those who love him or her, and from the point of view of the “killers”. 57 the president‟s last point above addresses the viewpoint of the “killers”. it has been suggested that there is a further dimension which ought to be taken into account – that of society at large. the reasons for this are not clear. in cases of euthanasia the only people directly affected are those listed above. it is quite different from fam 95. further reference was made to a similar decision in cruzan v director, missouri department of health (1990) 180 s. ct .2841 55 those who wish to examine the legal principles set out in the case are referred to the useful guidance set out in paragraph 100. 56 see paragraph 100 viii) 57 the word “killers” and “kills” are used neutrally and provisionally. this accords with michael oakeshott‟s notion of “adverbial descriptions”. he points out that there is nothing wrong with killing per se – the fault lies in “killing murderously” it is accepted that some people may believe that „murder‟ is the more appropriate word in some of these instances, whilst others may prefer „ finally relieve their suffering‟. it is accepted that this use is controversial, but there is no other convenient term. if the reader thinks that emotive language is being used, the authors point is thereby conceded valuation is a matter of emotion rather than reason. oakeshott explains the use of “adverbial descriptions” in his on human conduct (oxford: clarendon, 1975). see the first essay “on the theoretical understanding of human conduct”. right to die 106 abortion where there is the interest of another party -the foetus to be considered and, as blackmun j points out in roe v wade, 58 the state does have a legitimate interest in speaking up for a party which cannot speak. here, the state seems to be pushing its nose into a personal affair against the expressed wish of a party who is the only possible loser in the situation. the reason why some seek to invoke the public interest seems to be a „slippery slope‟ argument. if a person who really wants to die can be given, say, a lethal injection, what is to stop the next person who only nearly wants to die from being dispatched in the same way, and so on down the slope until we are killing those who do not want to die at all? the way out of this problem is, it is suggested, simple. the draft act set out below provides that the person who wishes to die is the only person who may bring the action. it is difficult to conceive of a situation in which a person who does not want to die brings an action and convinces a court that he desires his death does precisely that. as we shall see below the evidence from ms b‟s case is that the slope runs quite the other way; some seek to prevent those who wish to die from having their wishes fulfilled by proposing quite extraordinary solutions. if the person who wishes to die is indeed gravely ill, is competent, is aware of the alternatives, and is of a settled mind, there seems to be nothing more to be said. these are matters which a court is admirably suited to judge, as evidenced by the ms b case. one presumes that the person wishing to die has spoken to their family and friends and has taken some account of their views. 59 this raises issues of competency and undue influence. any court would want to be assured that there was no evidence that a person was being persuaded to die by, for example, avaricious relatives. the real issue arises with the state of mind or emotion of the killer. clearly doctors do „kill‟ people from time to time. the abortionist „kills‟ an unborn child even where the treatment is designed to save the mother‟s life, and the doctor who obeys a „do not resuscitate‟ notice, or who decides to use the liverpool care pathway as opposed to continuing with more aggressive treatments to keep the patient alive „kills‟ the patient in some sense. furthermore the doctor who switches off the life-support machine having determined that the patient is -for all practical purposes 60 dead, is much more closely implicated in the person‟s death. all of these examples fall short of the deliberate killing of a patient by the administration of an overdose of hypnotic or pain relieving drugs. the question is how and why? 58 410 us 113 (1973), see vii and xi. 59 tony nicklinson certainly discussed the matter with his family, so did diane pretty, and press reports indicate that the other anonymous applicant in nicklinson‟s case discussed the matter with his wife. 60 such people are unable to speak, engage in voluntary movement, eat or drink, control their excretory functions, or breathe without support. the denning law journal 107 there are two alternative explanations which are normally used. the first explanation is the „doctrine of double effect‟. this doctrine is judged unsatisfactory. the classical example of the doctrine arises in the case of an abortion performed to save the life of the mother who will die if the abortion is not performed. clearly abortion will kill the unborn child. 61 the doctrine of „double effect‟ seems to be given a wholly inappropriate name; it seems to be a doctrine of „half-think‟ or perhaps it is „think-too-much‟ this term („halfthink‟ or „think-too-much‟) needs to be explored. it has been suggested that the term „half-think‟ is unnecessarily pejorative – someone who half-thinks is, by implication, a half-wit. stocker points out that “many contemporary ethicists, along with other contemporary philosophers, have lost sight of the evaluative importance of emotions and perhaps of emotions themselves.” if „half-thinkers‟ are arrive at their position by neglecting their emotions, and it is not thought that they do, they would indeed be „half-thinkers‟. it seems that they „think-too-much‟ or reason-away their emotional repugnance by cleverness; a sophistication of thinking which enables the person to explain away, or justify, their performance of an action which they find repugnant the destruction of a baby in order to save the life of the mother cannot be regarded as two effects from a single action one desirable (the deliberate saving of the life of the mother) and one undesirable (the deliberate killing of the baby). the saving of the mother‟s life requires the death of the baby, even though such a death is the very last thing that the physicians and the mother desired; they would go to nearly any lengths to save the baby‟s life. the socalled doctrine of double-effect requires a sleight-of-mind. the performer of the act is required to convince themselves that simply because it was the last thing that s/he would have desired to do that s/he did not, in fact, do it in any morally relevant sense. however this is simply „half-think‟ the mother is alive, the baby is dead, the abortion was performed, but the abortionist was somehow missing. it is suggested that this only makes sense in two situations. the first situation is very familiar to those of religious faith. if god is waiting 61 there is another kind of double-think going on in the matter of abortion. it is unclear whether it is the proor antiabortion lobby (or both) which engage in this behaviour. those who oppose abortion often refer to the foetus (i am here using the correct scientific term in a neutral way) as a “baby” or “an unborn child”, whilst those who support abortion refer to the unborn child as a “foetus” or “the product of conception”. the point is to either encourage emotional warmth for we are revolted at the killing of a baby or to produce emotional distance “it is only a bundle of cells, not a real child”. for a more detailed treatment of this issue in wider circumstances, see jonathan glover humanity: a moral history of the twentieth century (london: pimlico, 2001) chapter 35. arguably one could explain a great deal of glover‟s work by adopting the theory set out here and in valuing emotions by simply pointing out the glover‟s 20th century monsters (hitler, stalin and the rest) simply suppressed their emotions in a nietzschean way. right to die 108 beyond our physical life to judge the conscience of the abortionist and s/he is to be called upon to confess to murder in breach of, eg, the biblical commandment „thou shalt not kill‟ s/he needs a convincing reason to absolve her from responsibility. since those of faith believe that god is the final judge, and the author of absolute standards in this matter, they cannot quarrel with the rule, and we cannot convince them otherwise. the only route of escape is by saying that one should only be judged according to that which one desired to do and, since one did not desire to kill the baby, one is innocent. the second situation which may have more appeal for those without religious faith, and may well be adopted by those who judge the position from the perspective of the whole person as set out above is much more complex. it needs to be distinguished from the classical utilitarian position. a classical utilitarian would refer to „the greatest good of the greatest number‟ and would presumably decide to sacrifice the baby in most circumstances. let us presume, for the sake of simplicity, in that case that the woman has a loving husband and other small children. if we add in the emotional nature of the abortionist-agent, we might not end up in the same position. our designated abortionist might feel that s/he could not perform the operation because s/he would be so revolted by it. s/he might well say “i cannot kill an innocent baby.” the doctrine of half-think (think-too-much), or double-effect, then comes into play to save the abortionist from themselves. the same arguments apply with the act/omission doctrine. a physician might say, when faced with the decision to switch off a life-support machine, when without the support of the device the patient will inevitably die: a) “i will be damned if i kill the patient”, or b) “i cannot bear to kill the patient”. they would then „reach‟ for the act/omission doctrine and characterise their action as an omission. this, too, is half-think or think-too-much. the doctrines of double-effect or act/omission as they have been read in writing this essay depend crucially upon a rigid humean approach to events caused by human action or inaction. 62 hume defines a cause as „an object precedent and contiguous to another and so united with it in the imagination, that the idea of the one determines the mind to form the idea of the other and the impression of the one to form a more lively idea of the other.” 63 both an „act‟ (such as injecting a person with a fatal dose of morphine) and an „omission‟ (switching off a life-support machine) qualify using this definition as the cause of a person‟s death, but we often draw a distinction between them calling one a (currently) culpable act and the other a (usually) non-culpable omission. this essay contains an implicit claim that the difference between 62 nothing is said here about other instances of causation. 63 see j l mackie the cement of the universe; a study of causation (oxford: clarendon, 1974) p 3. the denning law journal 109 the „act‟ and the „omission‟ is very much less than is commonly supposed and is best explained, in circumstances of assisted suicide at least (as opposed to the murder of an unwilling victim) as simply addressing the mental and moral hygiene of the killer. it is emotionally unpalatable to think of oneself as a murderer. one can avoid this shame by evaluating oneself as an „omitter‟ or as a „mercy-killer‟. there is another way out of the problem. it is to recognise that occasionally we are called upon to perform acts which are morally and emotionally unacceptable. life is, from time to time, nasty; it is seldom, if ever, fair. one can simple take the view that one simply has to take the least unacceptable way forward; we have to muddle through somehow. 64 perhaps one way of doing this is in the case of the critically ill patient in the situation of mr nicklinson and listens to the patient saying “i am going to die soon, i cannot bear to continue with this miserable existence” one could take the view of the merciful gods in the story of baucis and philemon. 65 baucis and philemon could not bear the thought of one living beyond the life of the other – for such would be a miserable existence beyond their emotional capacity and asked the gods as a reward for their kindness to be allowed to die together. 66 here we are dealing with a single death, not a suicide pact, but we can just the same recognise that death like everything else has its season. suppose that one has had a hitherto happy and active life and this has been blighted with a disease such that one cannot do all that makes life worth living and one is reduced to dependence upon others for even the simplest or most intimate of tasks. one might then, in a mature emotional way, seek oblivion rather than endure further pain, distress, and, it has to be said, shame. it is not doubted that some people, for example, those who work in hospices, derive great satisfaction from caring for the terminally ill. indeed some of these people speak as if their emotional commitment to the dying 64 this point is made in the poignant wartime song from meet me in st louis (mgm, 1943), “have yourself a merry little christmas” (hugh martin & ralph blane) as sung by judy garland. the exact lines are “someday soon we all will be together, if the fates allow. until then we‟ll have to muddle through somehow.” http://www.youtube.com/watch?v=yudgy30dd68. rather than focusing upon the (rather mawkish) story of the film; readers are invited to consider the effect of the song upon the wartime servicemen and women and their families. these particular words were found to be so powerful that they were rewritten for later renditions of the song. sometimes we are faced with impossible situations and all we can do is “muddle through somehow”. 65 see above n 40. 66 in the case of our dying patient we can now recognise that the „gods‟ in the story of baucis and philemon were wholly mythical; they were supernatural representations of that which seems like a natural and normal human response to many people. right to die 110 amounts to a vocation. it is as if the other side of the emotional coin to refusing to kill is a commitment to keep someone alive for as long as possible. there is no shortage of suffering people and some of them may well wish to live out every last moment of their lives tended by hospice workers. however, those who wish to die are surely under no obligation to provide them with patients. do those who work in hospices or intensive therapy units actively seek people for whom to care? to answer this question in the positive sounds almost absurd; could anyone really want to care for someone living a life which they want to lose? in ms b v an nhs hospital trust, one of the witnesses, mr g (a consultant in spinal medicine) argued that ms b should not be allowed to bring her life to an end with assistance because she lacked the capacity to form a judgement. 67 mr g argued that ms b did not realise just how good life could be for a person who was in the state described above. if he was able to persuade her to enter a specialist therapy unit and live there for a period of two years, his experience was that many people came to recognise that they were, in fact, living a worthwhile life. mr g wanted the court to declare that ms b was not competent to decide the issue of her own life because she had not had the benefit of this two years of experience. it is argued that mr g was seeking to impose the sentence of the gods upon sisyphus upon the unfortunate ms b. as camus helpfully summarises: 68 “the gods had condemned sisyphus to ceaselessly rolling a rock to the top of a mountain, whence the stone would fall back of its own weight.” in sisyphus‟ case the gods had thought that there could be “no more dreadful punishment than futile and hopeless labour”. this point needs exploration in depth but there is a preliminary point concerning ms b‟s autonomy. ms b was a highly qualified, highly experienced, senior social worker in the nhs with an excellent understanding of her condition and her prognosis, she had received the offer of mr g‟s care and had decided to reject it. for it to be claimed that she was thereby incompetent to decide upon her life is quite extraordinary and represents that which it is tempting to describe as a totalitarian attitude – “you do not agree with that which i think is best for you, therefore you must be incompetent”. 69 67 see paragraphs 59-63 of the judgment. 68 the opening sentence of the final part of the essay, above n 5. 69 if it is thought that this is hyperbole, see robert van voren “political abuse of psychiatry an historical overview”, schizophrenia bulletin 36(1) 33-35. van voren writes “the political abuse of psychiatry in the soviet union originated from the concept that persons who opposed the soviet regime were mentally ill because there was no other logical explanation why one would oppose the best sociopolitical system in the world.” by this reasoning, if wishing to die is incapable of logical explanation anyone who wishes to die is clearly incompetent. that is a totalitarian attitude. the denning law journal 111 there may be more reputable ways to justify a decision to refuse to allow treatment to be withdrawn from ms b and thus killing her. 70 the first such argument is rejected in its entirety. it is of the form – “god judges us by our reaction to trying events such as strokes and major illnesses” – since the author rejects the notion of an external judge of our lives, this makes no sense. the second such argument is that advanced by camus. camus suggests that sisyphus is made happy by enduring the struggle in an absurd world. camus might have sisyphus say: “pushing the rock up the hill requires effort and by performing this meaningless task i can take pride in my strength and fortitude. i am happy. ” this is, of course, a wholly emotional reaction and one could understand ms b, or any other person, taking the view that their own strength would carry them through. 71 this would suggest that a person who decided to bring their life to an end in ms b‟s situation is no more than a coward. before jumping to such a conclusion we should, of course, be thankful that we are not ourselves in such an unhappy situation having to face the hourly indignity of having to be given nutrient (not tasty, life-enhancing, emotionally satisfying, food or drink), having our nosed wiped, and having to be cleaned after soiling ourselves. would we be surprised if our pride and courage in existence was overcome by shame? however there is a much more positive argument to be made. it may be thought that the person wants to die in order to bring their shame to an end or because they are a coward, but suppose, in the alternative, that the person wants to die because they are so warmly and passionately attached to life that they cannot bear to be reduced to the status of a spectator. to a limited extent one can see sisyphus‟ pride in carrying on because he is, at least, doing something. however, one essential element of living is making a contribution to the lives of others, and ms b would be prevented from doing that. she would lose the emotional satisfaction which comes from all the „jobs well done‟ for others. another essential element of living is the ability to plan one‟s own life; a person in ms b‟s situation would be unable to make even the simplest plan for herself. suppose that ms b had, shortly before her second, disabling bleed planted a hyacinth bulb in her garden. for the rest of us we could, at the prompting of a stray thought, wonder at the progress of this flower and, opening the door, slip down the steps to examine it. “here it is, bright blue and sweetly scented in the spring sunshine ... and the leaf buds are breaking on the bushes, ... and a robin is singing … look! there he is … on 70 recall that the arguments set out above are that 1. she would need to be sedated before the life-support machine was switched off, and 2. the difference between act and omission is illusory in fact and can only be understood from the emotional standpoint of the „killer‟. 71 the clearest musical example of such an emotion is frank sinatra‟s rendition of the famous song written by jacques revaux and paul anka my way. right to die 112 the lilac… which is coming back to life. we might say “i planted that, and in the autumn i will plant another.” these plans and these happened-upon sights, smells, and sounds are now beyond ms b. we might well call our partner to look and then caress and share in the spring morning. this is not for ms b, she has only the life-support machine. if this story were told by some more skilled story-teller and thus the imagination of the reader was provoked and an affect raised, the reader‟s eyes would have moistened with tears. that is life and the key to understanding it is emotion. can we really be surprised if some people would rather bring their diminished, life-supported, existence to a close? the explanations of why camus is wrong, why the atheist is not a nihilist, and why it is right in the circumstances faced by ms b, nicklinson, and others to bring their existence to a peaceful and speedy end at their request now come together. camus is wrong, because life is not absurd or meaningless, it has value when experienced from the inside; our emotions give it value. value is „in here‟ because we feel it. camus gives his argument away when he acknowledges the final pride and joy of sisyphus in spitting in the eye of the condemnatory gods. “here is the worst you could do and i can beat you.” there is no need of any external source of value such as a god if we can judge things internally by our emotion. finally, if (and tony nicklinson, diane pretty and ms b had clearly reached that stage) our emotional fires have burnt so low that all value has drained from our lives; it is argued that it cannot be wrong for someone just to douse the guttering flame. how can we bring this about in legal form? how can we allow a person to bring about their death in the circumstances which they choose, free from the worry that they will be coerced into death, and such that physicians may decline to kill patients. the following draft act is proposed. it is argued that it is a true norm because it reflects the realities of the human condition. the draft act it is proposed that parliament should enact a short act in the following form. this is intended to address the point made at the end of nicklinson where the court felt constrained from issuing a declaration in the absence of an act permitting authorising such an action. 1. it shall be lawful for a medical practitioner to administer an approved fatal injection of suitable drugs to a person (“the patient”) in the following circumstances 1) where the patient concerned is suffering from: a) a scheduled disease or medical condition, or, the denning law journal 113 b) any other condition such that their capacity to breath, eat, drink, or voluntarily retain or void bodily waste can only be maintained by artificial means or constant care and intervention, and is unlikely to improve, and the high court has issued a declaration to the appropriate health authority that the administration of such an injection will be lawful. 1. the high court may issue such a declaration upon the application of a patient suffering from a disease or medical condition set out in section 1 where a) the patient has suffered from such a disease for a period of twelve months preceding the date of such application, and b) that the court is satisfied that the patient has the capacity to make such an application and understands its import, and c) the court is satisfied that the patient‟s decision is made of their own free will and is not subject to duress or the undue influence of another in coming to the decision to seek a declaration, and d) the court is satisfied that the alternatives to an immediate death have been explained to the patient. 1. the patient may represent themselves or be represented by counsel. the secretary of state shall appoint the official solicitor to represent the interests of the respondent health authority in ensuring that the criteria set out in section 2 are fulfilled. argument shall be limited to those matters contained in section 2. above. no interventions in such proceedings will be permitted 2. if such declaration is issued it will be the duty of the respondent health authority to provide a doctor willing to administer the injection. 1) no doctor may be obliged to administer such an injection against their will or conscience and any doctor shall have an absolute and unquestionable discretion to refuse to administer such an injection. 2) the identity of the doctor shall be protected from publication by injunction and shall only be disclosed to the patient and their immediate family. 1. schedules to this act shall contain 1) the formulations of such drugs as are approved to constitute the fatal injection. 2) the list of scheduled diseases. right to die 114 a short explanation of this act is required. firstly it is intended that the act is only intended for use where a person is disabled by a serious disease where there is no reasonable hope of recovery. it would be unconscionable for the state to provide facilities for, or co-operate in, the suicide of a person who was able to act for themselves because the opportunities for abuse are too great. this further explains why, at section 2, it is necessary for the person who wishes to die to bring their own application. in part this rule is intended to prevent opponents of the act from bringing applications designed to bring the matter into disrepute. the issue of capacity must be introduced to prevent those whose illness is such that they lack capacity (such as the unfortunate ms e) are unable to use the act. the requirement that the person make the application of their own free will is designed both to preclude the applicant being pressured to bring their life to an end against their will and to ensure that the person has themselves determined that their will to live is at an end. it is clear, for the reasons set out above, that some doctors may have an objection to bringing another‟s life to a close. perhaps they are religious, perhaps their emotions inhibit them, perhaps they are unconvinced by the arguments for euthanasia. it should be their absolute right to refuse. however there are doctors who are willing to provide the necessary expertise. the rule against interventions is designed to protect the person who wishes to die from the attentions of zealots who understand the world in a quite different way. similarly the injunction to protect the identity of the doctor is designed to free him or her from the threat of lawsuits or even, rather ironically, unlawful violence. most acts of domestic, as opposed to international, terrorism in the usa are aimed at facilities which provide lawful abortions. 72 conclusion this article contains the argument that we only make sense of our lives and our deaths by means of emotion. we are not wholly rational creatures and indeed our lives would be much the poorer if we were only actuated by reason. the author of this paper currently enjoys the best of health and wishes such to continue for as long as possible. however, he knows that sooner or later his health will decline and he will die to every thing there is a season … a time to be born and a time to die. such is the nature of human life. there were countless ages before he was born and there will be countless ages after he dies. the writing of philosophy always serves some purpose. it is not an 72 m jacobson and h royer "aftershocks: the impact of clinic violence on abortion services" [2011] 3 (1) american economic journal: applied economics 189–223. the denning law journal 115 empty academic exercise, the author often wants to change the world, 73 or, at the very least to explain his or her own position within it. a person writing about emotion must be taken to want to explain their own emotions. suppose that tomorrow the author were to suffer a stroke, and he be left tetraplegic, unable to eat or drink, and incontinent. his own wish in that horrible situation is for his wife to sit with him and for him to receive such an injection. the words of rupert brooke in choriambics sum up his feelings: only at length, dear, when the great day ends, when love dies with the last light, and the last song has been sung, and friends all are perished, and gloom strides on the heaven: then, as alone i lie, ‟mid death‟s gathering winds, frightened and dumb, sick for the past, may i feel you suddenly there, cool at my brow; then may i hear the peace of your voice at the last, whispering love, calling, ere all can cease in the silence of death; then may i see dimly, and know, a space, bending over me, last light in the dark, once, as of old, your face. why should we deny any human being that release? to condemn them to a twilight non-life is, in the view of the author, simply wicked. 73 karl marx and frederick engels x th thesis on ludwig feuerbach, appendix to ludwig feuerbach and the end of classical german philosophy (moscow: progress publishers, 1988). the denning law journal 149 denning law journal 2007 vol 19 pp 149-170 scalia, hamdan and the principles of subject matter recusal brian flanagan∗ the point of judicial recusal is at once obvious and elusive. the idea of a partial judge immediately grates on our sense of fairness. almost invariably, the normative basis of judicial impartiality is traced to what is described as ‘natural justice’;1 specifically the celebrated maxims of nemo iudex in causa sua2 and audi alteram partem.3 but the relationship of this moral bedrock to the exigencies and settled practices of constitutional adjudication is far from straightforward. this article will focus on the implications of the latter principle – perhaps best translated as a standard of judicial open-mindedness regarding the subject matter of a dispute. despite its moral immediacy, there are serious theoretical objections, best described as ‘realist,’ to an expansive conception of judicial open-mindedness. likewise, at a practical level, the institution of the dissenting opinion can be seen as diluting the duty to keep an open mind, at least in jurisdictions such as the us where judges are expected to exhibit relatively little deference towards previous decisions in which they were outvoted. the issue of judicial impartiality was placed in sharp relief by the recent controversy surrounding us supreme court justice antonin scalia’s extrajudicial commentary on legal questions relating to a then pending supreme court case, hamdan v rumsfeld.4 in part i, the article will proceed with a doctrinal analysis of the legality of justice scalia’s decision to sit in the ∗ balliol college, oxford. i assisted in the preparation of binyam mohamed’s amicus curiae brief to the supreme court in support of the petitioner in the hamdan case. the brief related solely to the merits of the petition. i am grateful to ravinder thukral, greg ó ceallaigh and the denning reviewers for their helpful comments on earlier drafts of this paper, and to david whelan for directing me to some interesting case law. the usual disclaimer applies. 1 as in the scottish case of bradford v mcleod [1986] slt 244 where the court, in grounding its standard of judicial impartiality, declared it was ‘entirely satisfied that what are commonly referred to as the rules of natural justice apply to criminal trials in this country.’ at 247. see also the commonwealth case of kanda v government of malaya [1962] ac 322 at 337, ‘[t]hose two rules [the rule against bias and the right to be heard] are the essential characteristics of what is often called natural justice’ (denning lj). 2 that no one be a judge in their own case. 3 that one must listen to both sides. 4 supreme court docket no. 05-184; 126 s ct 2749 (2006). scalia, hamdan and the principles of subject matter recusal 150 case notwithstanding his prior remarks. taking a broader perspective, part ii will consider whether objections to justice scalia’s participation in hamdan can be reconciled with the nature of appellate adjudication and, in relation to dissenting opinions, with an established feature of adjudicative practice in most common law jurisdictions. part i: hamdan and the law of recusal section a: swiss judicial neutrality during a q&a session on march 8th of last year at the university of freiburg in switzerland, justice scalia noted his astonishment at “the world reaction to guantanamo,” and declared that “[w]ar is war, and it has never been the case that when you capture a combatant you have to give them a jury trial in your civil courts.”5 challenged as to the justice of incarcerating an individual in guantanamo bay without having proven their guilt, scalia interjected, “if he was captured by my army on a battlefield, that is where he belongs. i had a son on that battlefield and they were shooting at my son and i’m not about to give this man who was captured in a war a full jury trial. i mean it’s crazy.” when the questioner suggested a role for the geneva conventions in the matter, scalia asked “what do they mean?” and answered, “they mean almost anything.” it is difficult to imagine justice scalia being oblivious to the hamdan case6 when making these remarks.7 oral argument in the supreme court was 5 a video of the justice’s speech is available at http://bafweb.com/index.php?s=scalia 6 hamdan’s facts, as had been found by the court of appeal (dc circuit), were that afghani militia forces captured the petitioner in afghanistan in late november 2001. his captors turned him over to the american military, which transported him to the guantanamo bay naval base in cuba. the military initially kept him in the general detention facility, known as camp delta. on july 3, 2003, the president determined ‘that there is reason to believe that [hamdan] was a member of al qaeda or was otherwise involved in terrorism directed against the united states.’ hamdan was designated for trial before a military commission. in april 2004, hamdan filed a petition for habeas corpus. while his petition was pending before the district court, the government formally charged hamdan with conspiracy to commit attacks on civilians and civilian objects, murder and destruction of property by an unprivileged belligerent, and terrorism. in response to the supreme court’s decision in hamdi v rumsfeld 124 s ct 2633 (2004), hamdan received a formal hearing before a combatant status review tribunal. the tribunal affirmed his status as an enemy combatant for whom continued detention was required. on november 8, 2004, the district court granted in part hamdan’s petition. among other things, the court held that hamdan could not be tried by a military commission unless a competent tribunal determined that he was not a prisoner of war under the 1949 geneva convention http://bafweb.com/index.php?s=scalia the denning law journal 151 less than three weeks away and it was clear to any informed observer that the case had the potential to have enormous implications for the bush administration’s approach to bringing its guantanamo captives to justice.8 in response to justice scalia’s comments, a request for his recusal was filed on march 27 by one of hamdan’s amici curiae, ‘retired generals’.9 ignoring this request, justice scalia proceeded to take part in oral argument10 and subsequently dissented from the court’s reversal of the court of appeals’ decision to deny hamdan relief.11 governing the treatment of prisoners. the court therefore enjoined the secretary of defense from conducting any further military commission proceedings against hamdan. the district court’s decision was reversed by the court of appeal on july 15, 2005. the questions for which hamdan was granted certiorari by the supreme court were: 1. whether the military commission established by the president to try petitioner and others similarly situated for alleged war crimes in the ‘war on terror’ is duly authorized under congress's authorization for the use of military force (aumf); the uniform code of military justice (ucmj); or the inherent powers of the president? 2. whether petitioner and others similarly situated can obtain judicial enforcement from an article iii court of rights protected under the 1949 geneva convention in an action for a writ of habeas corpus challenging the legality of their detention by the executive branch? 7 for instance, in an essay by adam cohen published in the new york times on april 3, 2006 (which did not refer to any recusal issue) hamdan was described as ‘probably the term’s most important case.’ the following day, the paper’s editorial board described the case as ‘momentous’. on march 28, the washington post described hamdan as ‘one of the most important terrorism-related cases to reach the court.’ likewise, on february 7, hamdan received prominent mention in a speech on comparative law by justice scalia’s colleague, justice ginsburg. hamdan was the only case on the supreme court docket referred to by ginsburg. indeed according to the philadelphia inquirer editorial of march 31, justice scalia himself told his freiburg audience that he was ‘‘only weeks away from sitting in judgment on osama’s former wheelman.’’ 8 evidence of hamdan’s importance could be found in the number of its amici curiae – a total of 53 briefs were filed. 9 the amicus’ letter is viewable at http://www.scotusblog.com/movabletype/archives/hamdanrecusalletter.pdf 10 the case was argued on march 28. 11 justice scalia’s dissenting opinion dealt solely with the question of whether the court had jurisdiction to hear hamdan’s petition, and concluded that it did not. the argument might thus be made that any prejudicial view which the justice may have entertained regarding the substance of hamdan’s petition would ultimately have been irrelevant to his disposition of the case. one sufficient reason for considering this argument unsustainable, however, is justice scalia’s joining of justice thomas’ dissenting opinion. the thomas dissent dealt in detail with the substance of each of the questions for which the court had granted hamdan certiorari. http://www.scotusblog.com/movabletype/archives/hamdanrecusalletter.pdf scalia, hamdan and the principles of subject matter recusal 152 the federal law regulating justice scalia’s participation in hamdan provides, in relevant part, that: (a) any justice, judge, or magistrate judge of the united states shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) he shall also disqualify himself in the following circumstances: (5) he or his spouse, or a person within the third degree of relationship to either of them . . .: (iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; 12 there were two potential grounds for justice scalia’s recusal. the first was that the justice had formed his opinion on the merits of hamdan’s petition prior to hearing hamdan’s arguments thereon and was thus unfit to decide the case due to prejudice. the second had been his perception that his son was maliciously injured or endangered by battlefield detainees. justice scalia’s remarks indicate he viewed this endangerment as relevant to the legality of a battlefield detainee’s treatment. thus it could be argued that “a person [within the first degree of relationship] was known by the judge to have an interest [in seeing his enemies held captive and/or brought to justice] that could have been substantially affected by the outcome of the proceeding,”13 to wit, whether battlefield detainee hamdan could be tried under president bush’s military commissions, as then constituted. the first ground relates to the prejudgment of the substance of a case and is addressed by subsection (a); the second ground concerns personal interest bias and is dealt with by both (a) and (b)(5)(iii). this article will focus on the first ground only. section b: subject matter prejudice writing for the supreme court in one of its few opinions on subsection (a), justice scalia held that: [i]t was an entirely new ‘catch-all’ recusal provision, covering both ‘interest or relationship’ and ‘bias or prejudice’ . . . but requiring them all to be evaluated on an objective basis, so that what matters is not the reality of bias or 12 section 455 of title 28, part i, chapter 21 of the us code. 13 per section 455 (b)(5). the denning law journal 153 prejudice, but its appearance. quite simply and quite universally, recusal was required whenever ‘impartiality might reasonably be questioned.’14 as regards the question of subject matter prejudice, the history of the enactment of section 455 happened to shed some light on justice scalia’s situation. the subject of recusal had arisen in the supreme court’s 1972 decision in laird v tatum.15 laird involved a constitutional challenge to the army’s surveillance of civilian political activity. while serving in the department of justice prior to his elevation to the supreme court, william rehnquist had commented on the proper application of the law to the facts of the laird case, which was then pending in a lower court.16 the recusal issue in laird was whether rehnquist, having already articulated his views on the merits of the case, was prejudiced towards the supreme court arguments of one of its parties. rehnquist’s subsequent decision to sit in the case and provide the crucial fifth vote for the army’s surveillance activities provoked controversy. in response, the american bar association adopted a new cannon that required a judge to recuse himself whenever “his impartiality might reasonably be questioned.”17 in 1974, taking the cannon as its model, congress enacted section 455 with the stated goal of “promoting confidence in the impartiality of the judicial system.”18 it seems clear, therefore, that section 455 (a) was enacted to prohibit laird style non-recusals.19 14 liteky v us 510 us 540 (1994) at 548. 15 408 us 1 (1972). 16 hearings before the subcommittee on constitutional rights of the committee on the judiciary of the united states senate, 92nd cong, 1st session, on ‘‘federal data banks, computers and the bill of rights,’’ part i, at 864-5 (1971). 17 cannon 3c (now cannon 3e). 18 hr rep no 93-1453 (1974) at 2, 5. this goal and the congressional intention to conform with cannon 3c was noted by the supreme court in liljeberg v health services acquisition corp., 486 us 847 (1988) fn 7. see further a frost, ‘keeping up appearances: a process-oriented approach to judicial recusal’ 53 kansas l rev 531, 545-547 (2005) and c l roberts, ‘the fox guarding the henhouse?: recusal and the procedural void in the court of last resort’ 57 rutgers law review 107, 138-143 (2004). 19 interestingly, when questioned on his decision not to recuse in laird during his senate confirmation hearings for the position of chief justice, rehnquist remarked, ‘‘i have gone back and read the opinion, and i think, under the statute as it was changed after laird v tatum, i think there would be probably a very strong ground for [my] disqualification. but i didn’t feel dissatisfied with the way i had behaved under the statute as it then stood.’’ s hrg 99-1067, p 184. scalia, hamdan and the principles of subject matter recusal 154 one difference between laird and hamdan suggests itself. in his pre-case remarks, rehnquist referred to laird by name; whereas justice scalia did not mention hamdan. the difference lay in justice scalia’s favour, but was arguably insufficient to meet the post laird standard of judicial impartiality introduced by section 455. to maintain that scalia was any less partial towards rumsfeld than rehnquist was towards laird, one must assume scalia had not adverted his mind to hamdan’s supreme court petition prior to holding forth on its subject matter. given the petition’s imminence and notoriety, this scenario appears implausible, especially in light of the remarkable perspicuity the justice had demonstrated earlier in his swiss remarks regarding a different ‘case.’ asked about the constitutionality of restrictive abortion legislation that had recently been enacted by south dakota,20 but which at that time was not even the subject of a lawsuit, justice scalia refused to answer. looking directly into the camera, the justice noted that the case might wend its way up to the supreme court someday and that it would thus be inappropriate for him to pronounce upon it.21 the supreme court has not elaborated a specific test for subject matter prejudice or bias under section 455, but guidance can be drawn from its comments in liteky regarding an ‘objective basis’ and its dictum in liljeberg v health services acquisition corp. that “[t]he goal of section 455(a) is to avoid even the appearance of partiality.”22 this would suggest the appropriate test is whether there exists a reasonable apprehension of partiality.23 let us therefore take the perspective of the reasonable man. if he felt that justice scalia had simply been noting the historical precedent for the executive’s proposals – rather than commenting on what rights a detainee should enjoy at trial – a reasonable observer might not have entertained doubts as to the justice’s impartiality. were historical standards to mean little 20 signed into law by governor mike rounds on march 6, 2006. 21 see n 5. the legislation in question was subsequently repealed by statewide referendum on november 7, 2006, without having been tested in federal court. 22 486 us 847, 860 (1988). 23 that the objective appearance of partiality is sufficient to warrant judicial recusal is likewise the position prevailing in several other common law jurisdictions. see for instance bradford v mcleod (n 1) at 247 (scotland); locabail (uk) ltd v bayfield properties ltd [2000] hrlr 290 at 301, 314 (england and wales) – cited approvingly in the privy council case of diedrichs-shurland v talanga-stiftung [2006] ukpc 58 paras 22-23; bula limited v tara mines limited (no 6) [2000] 4 i.r. 412, 449 (ireland); ebner v official trustee in bankruptcy (2000) 205 clr 337 para 6 (australia); wewaykum indian band v canada [2003] 2 scr 259, para 60 (canada); auckland casino ltd. v casino control authority [1995] 1 nzlr 142, 149 (new zealand); president of south africa v south african rugby union football (1999) (4) sa 149 paras 35-39. see also langborger v sweden (1990) 12 ehrr 416, paras 32, 35 (european court of human rights). the denning law journal 155 to justice scalia, that hypothesis might stand. however, it is exceptionally rare for justice scalia to make an historical observation while discussing the constitutionality of a legal practice without employing that observation in the latter’s favour or vice versa. as he made clear during his swiss remarks, justice scalia is a committed originalist for whom statements such as ‘it has never been the case that when you capture a combatant you have to give them a jury trial in your civil courts’ could only ever function as a reason to deny such a trial.24 an objective observer would thus remain concerned that the justice had already applied his theory of constitutional interpretation to the case at bar. quite apart from title 28, justice scalia’s conduct may raise constitutional questions. in re murchison,25 the supreme court made an arguably analogous recusal decision based on the due process clause26 of the fourteenth amendment. the issue was whether a contempt proceeding complied with the due process requirements of an impartial tribunal where the judge presiding at the contempt hearing had also served as the ‘one-man grand jury’ out of which the contempt charges arose. the court held that: “[i]t would be very strange if our system of law permitted a judge to act as a grand jury and then try the very persons accused as a result of his investigations. . . having been a part of that process a judge cannot be, in the very nature of things, wholly disinterested in the conviction or acquittal of those accused. while he would not likely have all the zeal of a prosecutor, it can certainly not be said that he would have none of that zeal.”27 it is not entirely clear whether the prejudice found in murchison was that the judge had become emotionally committed to having his own decision to prefer charges vindicated as a matter of professional pride at the subsequent hearing or whether it lay in the judge bearing a disposition on the merits prior 24 justice scalia has articulated his judicial philosophy in many public fora over the years. one could go so far as to credit the justice with putting ‘originalism’ on the international legal map. for an authoritative treatment see his ‘a matter of interpretation: federal courts and the law’ (new jersey; princeton university press 1997). 25 349 us 133 (1955). 26 us constitution, fourteenth amendment, section 1, ‘‘no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the united states; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’’ 27 at 137. scalia, hamdan and the principles of subject matter recusal 156 to the hearing which would inevitably cloud his judgment thereof. in the latter case, the fourteenth amendment was held to constitutionally enshrine a principle of judicial open-mindedness. as such, justice scalia’s substantive comments on hamdan’s position would place his judicial qualification to hear the latter’s petition under considerable pressure. in the former case, murchison could only be read as taking a strong line against the appearance in the judiciary of emotional commitment to a particular outcome, ‘prosecutorial zeal.’ but such a reading would have equally negative implications for a justice’s decision to sit where he views one of the litigants as partially responsible for the malicious endangerment of his own son; endangerment he considers relevant to the issue of law at bar. thus on either construction of murchison’s legal standard (or on a mélange of both), the freiburg event implicated the question of recusal. moreover, the test applied to the due process clause by murchison was as rigorous as that imputed by liteky and liljeberg to section 455 (a), “our system of law has always endeavored to prevent even the probability of unfairness . . . to perform its high function in the best way justice must satisfy the appearance of justice.”28 on the analysis thus far, federal law appears to dictate recusal for prejudice as the appropriate course for justice scalia in hamdan. as it stands, however, that conclusion is not incontrovertible. likewise, we have yet to address a primary objection to the whole notion of judicial recusal – that judges are bound to have preconceived ideas about the law before they go into a case, many of which have been cogently expressed in their prior dissents. fortunately, we are in a position to garner some guidance on these questions from justice scalia’s own record regarding the norms of subject matter prejudice. section c: justice scalia’s standards on january 12 2003, scalia spoke in fredericksburg, virginia at an event sponsored by the knights of columbus. remarking generally on the trend of the supreme court’s jurisprudence under the establishment clause, he criticised a decision of the ninth circuit on the wording of the pledge of allegiance.29 at the time he spoke, the newdow case had been decided by a three-judge ninth circuit court of appeal panel, and was being considered for en banc rehearing. on february 28, rehearing was denied. on april 30, the school district that lost the newdow case filed for review by the supreme court, and on october 14 the court granted review of the case. it was argued 28 at 136. 29 see for instance the report of the free lance-star at http://fredericksburg.com/news/fls/911/2003/012003/01132003/846367 http://fredericksburg.com/news/fls/911/2003/012003/01132003/846367 the denning law journal 157 before the supreme court on march 24 2004. without comment, justice scalia recused himself from consideration of newdow.30 in his memo explaining his refusal to disqualify himself from the cheney case, he stated: “recusal is the course i must take – and will take – when, on the basis of established principles and practices, i have said or done something which requires that course. i have recused for such a reason this very term. see elk grove unified school district v newdow.”31 in substance, there does not appear to be any difference between justice scalia’s comments in relation to newdow and his comments with regard to hamdan. indeed, whereas hamdan was on the justice’s docket and only weeks from oral argument when he spoke in freiburg, at the time of his comments in fredericksburg, newdow remained ten months from a supreme court decision. moreover, at that point, newdow had not even worked its way out of the court of appeal and petition for certiorari would not be filed for a further 3 and half months. it is true that justice scalia did not refer to hamdan by name in freiburg whereas he appears to have mentioned the ninth circuit’s decision in fredericksburg. but as with the laird analogy, it is difficult to believe the justice was not adverting to the hamdan case in making his comments, despite omitting to mention it by name. consider the following extrajudicial response to a question asking whether different standards of judicial review should be applied under the equal protection clause of the fourteenth amendment: “i just cannot do it [answer], and, i think the only way to be sure that i am not impairing my ability to be impartial, and to be regarded as impartial in future cases before the court, is simply to respectfully decline to give an opinion on whether any of the existing law on the supreme court is right, or wrong.” when asked if the views expressed in a legal article he wrote four years before reflected his current views: “i do not think i should say. as far as a litigant who has to appear before me is concerned, it is troublesome enough to 30 elk grove unified school district v newdow 542 us 1. 31 cheney v us district court 541 us (2004) memorandum of scalia j. for an outline of the controversy regarding justice scalia’s qualification to sit in cheney given his friendship with the vice president see frost (n 18) at 572-76. scalia, hamdan and the principles of subject matter recusal 158 them, i suppose, that i once wrote views on one side or another like that, to reaffirm them after i am a sitting judge.” when questioned if marbury v madison32 was correctly decided: “i do not want to say that anything is a settled issue as far as i am concerned. if somebody wants to come in and challenge marbury v madison, i will listen to that person. . . i really do not want to say with respect to any decision that i would not listen to a litigant who wants to challenge it.” a more uncompromising defence of judicial open-mindedness regarding the substance of future litigation would be hard to find. the defence is that of judge antonin scalia given in sworn testimony before the senate committee on the judiciary prior to his confirmation as associate justice of the us supreme court.33 a federal judge who is wary of making extrajudicial pronouncements on madison v marbury for fear of prejudicing an unidentifiable future litigant would surely baulk at the prospect of deciding an identifiable litigant’s fate having publicly dispatched the relevant legal question before hearing the litigant’s argument. of course, refusing to answer senatorial questions on the merits of any specific point of law (especially the most settled ones) enabled judge scalia to give a principled reason for declining to say where he stood on several hot button issues, most notably roe v wade.34 indeed the fact that so many senators accepted an appeal to judicial open-mindedness as reason enough for a judge to refuse to answer their questions suggests that the principle has considerable traction.35 in any 32 5 us 137 (1803). 33 s hrg 99-1064 (august 5th 1986). the quotes can be found at p 58, 59 and 83 respectively. 34 410 us 113 (1973). 35 justice scalia was confirmed by a vote of 98-0. during the hearings, when asked by senator edward kennedy (amongst several others) whether he would overrule roe v wade, scalia declined to answer. at this point, the chairman of the judiciary committee, senator strom thurmond, intervened in support of the judge, stating at p 37, ‘i agree with you. i do not think it is proper to ask any question that he has to act on or may have to act on.’ similarly, several members of the judiciary committee referred to the principle of judicial open-mindedness (in substance if not by name) in their official statements on judge scalia’s nomination. see thurmond at p 2, ‘a person who is open-minded;’ hatch at p 15 ‘his openness to varied viewpoints,’ and ‘judicial temperament;’ denton at p 23, ‘a judge who eagerly seeks out the opinions and viewpoint of his fellow judges when he is formulating a position;’ deconcini at p 17, ‘judicial temperament;’ mcconnell at 29, ‘judicial temperament;’ leahy at p 20, the denning law journal 159 case, on the question of subject matter prejudice, both federal law and justice scalia’s own articulated standards suggest that, in hamdan, recusal would have been the more appropriate course.36 the advisability of a scalia recusal is confirmed by a clear line of federal court of appeals precedent to the effect that, where the “question of whether §455(a) requires disqualification is a close one, the balance tips in favor of recusal.”37 moreover, as chief justice roberts had already recused himself from the case,38 the commonly raised spectre of an equally divided court passively affirming the decision below could not apply in hamdan.39 in relation to his swiss remarks, the prospect of a 4-4 decision arose only by ‘your philosophy about the standards you would apply in recusing yourself from cases.’ 36 note i am not attempting to draw a parallel between the importance of a justice’s testimony at his supreme court confirmation hearing and the lectures he may deliver at university settings. equally, i offer no view at this point as to whether justice scalia would have prejudiced himself had he answered questions concerning the correct state of the law at his confirmation hearings. the point is simply to draw attention to the nature of the standards which justice scalia had himself proposed regarding the principle of judicial open-mindedness. 37 patterson v mobil oil corp 335 f3d 476 ca 5 (tex) 2003 at 484; in re chevron usa., inc 121 f.3d 163 ca 5 (tex) 1997 at 165; nichols v alley 71 f3d 347 ca 10 (okl) 1995 at 352; us v dandy 998 f2d 1344 ca 6 (mich) 1993 at 1349; in re boston's children first 244 f.3d 164 ca 1, 2001 at 167; republic of panama v american tobacco co inc 217 f3d 343 ca 5 (la) 2000 at 347. this ‘tie-breaker’ consideration is also applicable in other common law jurisdictions, see for instance locabail (n 23) at 304, ‘if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal’ (england and wales). 38 having participated in the court of appeal decision for which petitioner hamdan had been granted certiorari by the supreme court. 39 cheney v us district court 541 us (2004) memorandum of scalia j at ii; laird v tatum 409 us 824 (1972) memorandum of rehnquist j at 837; microsoft corp v us 121 s ct 25 (2000) memorandum of rehnquist cj at 27. (the memoranda set out the respective justices’ reasons for not considering themselves disqualified from sitting on the cases in question.) see also justice ginsburg’s comment to this effect in ‘an open discussion with justice ruth bader ginsburg’ 36 conn l rev 1033, 1038 (2004). according to supreme court practice, an equally divided court has the effect of affirming the decision under review without producing any precedential impact; see eaton v price 364 us 263 (1960). however, recent empirical work by lee epstein and ryan black suggests that the fear of equal division on the supreme court is largely unfounded. ‘recusals and the “problem” of an equally divided supreme court’ 7 j appellate prac & process 75 (2005) (finding that between the 1946 and 2003 terms less than ten percent of impartiality recusals resulted in an equal division on the subsequent decision). scalia, hamdan and the principles of subject matter recusal 160 virtue of justice scalia’s decision to hear the case despite his apparent conclusions as to its merits. but whatever the doctrinal position regarding disqualification in this instance, broader concerns as to the plausibility of insisting on recusal for subject matter prejudice present themselves: is a subject matter dimension to the principle of audi alteram partem practical, or even coherent? part ii: the law of recusal and the administration of justice section a: the ‘realist’ objection there remains a cogent ‘realist’ objection to our subject matter analysis thus far, namely, that since judges will inevitably have fixed ideas about the law, penalising them for expressing those ideas off the bench, especially when they have already said as much in previous dissents, is arbitrary and nonsensical. the principle of judicial open-mindedness is thus an illusion. to understand the limits of this point we need to consider the normative basis of subject matter impartiality and how it relates to the process of constitutional adjudication. any legal system which takes positions on questions of morality or politics will necessarily place some of its litigants at a disadvantage. simply put, certain actors will find their activities closer to the right side of the law than others.40 moreover, as regards constitutional bills of rights, the vagueness of the text inevitably invests those responsible for applying such bills with some law making capacity.41 this is evident when broadly worded provisions such as the first amendment of the us constitution42 or article 8 of the echr43 are at issue – the range of textually coherent, alternative 40 that is, some litigants are more likely to win because they satisfy the substantive rules that the legal system has set out – a defendant who sells defectively dangerous goods in a jurisdiction which prohibits such activities is less likely to win the case than the plaintiff, however impartial the judge. 41 pace ronald dworkin, as in ‘no right answer?’ in p m s hacker and j raz (eds.) law, morality and society. essays in honour of h l a hart (oxford; clarendon 1977). 42 ‘congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.’ 43 ‘1. everyone has the right to respect for his private and family life, his home and his correspondence. 2. there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a the denning law journal 161 outcomes is as wide as the range of factual scenarios arguably implicating those guarantees. if the judge is to produce an outcome, she must make choices which define the legal content of those provisions.44 likewise, to interpret a bill of rights, or any legal document, a judge needs a theory of interpretation. if she had no such theory, she would have no means of recognising the meaningfulness of the texts with which she is presented.45 the choice of a theory of interpretation, though one bounded by what is politically possible, will inevitably have some impact on the kind of results she believes the legal texts require.46 consequently, the necessity of choosing a theory of interpretation can be regarded as an investment of law making competence in those responsible for using the law to adjudicate disputes in the name of the jurisdiction. thus, between the openness of the text and the choices faced by judges in their selection of a theory for its interpretation, the application of a bill of rights requires some judicial creativity. put differently, to resolve ‘rights’ questions, judges must make some law. evidently, judges would find it impossible to make law (however little is necessary) without personal ideas as to what is morally and politically desirable. thus, as a qualified lawmaker, justice scalia is entitled to hold normative views about what the law should be and how it is to be determined. anyone with such views will find certain legal outcomes, such as the success or failure of hamdan’s petition, more plausible than others. in light of these interpretive realities, as between litigants, an inequality of legal arms is an inevitable feature of constitutional adjudication. unless we start resolving our lawsuits by rolling dice, we cannot expect our judges to be equally likely to find favour with the contending sides – quite apart from the inequalities of opportunity brought about by the unambiguous substantive content of the legal regime. as such, there is no reason in principle for insisting that judges refrain from making normative statements in their public remarks.47 democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’ 44 the point was well made by john p frank, ‘disqualification of judges: in support of the bayh bill’ 35 law and contemporary problems 43 (1970) at 48 ‘supreme court justices are strong-minded men, and on the general subject matters which come before them, they do have propensities; the course of decision cannot be accounted for in any other way.’ 45 for an elaboration of this point see f schauer ‘precedent and necessary externality of constitutional norms’ 17 harvard j public policy 45, 50-56 (1994). 46 different theories of the role of precedent, social science evidence, legislative intent, ‘evolving’ meaning and foreign law each yield potentially different results when factored into acts of legal reasoning. 47 whether conceived as a matter of principle or prudence, the ‘appearance of judicial impartiality’ involves an objective test. however, it is difficult to base an objective scalia, hamdan and the principles of subject matter recusal 162 similarly, there is no principled basis for criticising judges for articulating their theories of constitutional interpretation, however strongly those bear on the outcome of the particular cases before them. judges can hardly avoid choosing interpretative theories with which there is less than universal agreement if they are to render justice in accordance with legal prescriptions of any kind. section b: the french connection for a system of judicial review for constitutionality, in which the authority to pursue constitutional cases lay exclusively with the organs and officers of the state, we might leave our theoretical analysis there. such a system prevails in france,48 which, for present purposes, we will characterise as a system of ‘official’ review.49 however, in jurisdictions where parties may invoke the constitution to challenge the legality of their circumstances, a different scenario emerges. there can only be contending parties to a constitutional dispute if one side believes that the law operates to protect their interest by frustrating the other’s interest and if that side has a right to the operation of constitutional law with regard to his own particular circumstances. by contrast, under a system of official judicial review, the initiating officer or organ has no right to have the disputed provision interpreted with regard to his personal circumstances. this is not for a moment to suggest that the officers in question have no personal interest in the operation of the law or that the operation they advocate would not work to protect their personal interests while frustrating those of another. the process of ‘seizing’ france’s constitutional court is entirely political. crucially, however, an initiating officer has no right to advert to the unconstitutional effect that the law would have on his personal circumstances – political or otherwise – as a reason for grounding the conseil finding of partiality on a forthright judicial lecture if we accept that, objectively, judges will have (and need) views on controversial constitutional issues which will affect how they decide the cases which come before them. even as a principle in itself, therefore, it seems that the appearance of impartiality would not be undercut by overt judicial moralising – impartiality being defined so as to exclude the differential impact such moralities exert on particular cases. 48 according to article 61 of the french constitution of 1958, prior to their promulgation, laws may be referred to the conseil constitutionnel for review of their constitutionality by the president of the republic, the prime minister, the president of the national assembly, the president of the senate, and sixty deputies or sixty senators. 49 the usual english terminology here is ‘abstract’ review; this contrasts with the use of ‘concrete’ review in the common law world. the denning law journal 163 constitutionnel’s judicial review. the contending sides to official review act only in the context of their state offices. as such, even though individual national legislators line up on either side of the legal question before the constitutional tribunal, the state, as legislator, is simply carrying out its processes of law making. neither state itself nor its citizens are parties to a legal dispute. whenever they initiate judicial review, french legislators act in their official capacity as such. through invoking the question of constitutional conformity, those minority parliamentarians who opposed the assembly passage of a bill are not simply engaging in a legal dispute with the ones in majority; both sides are using their constitutionally delegated powers to collectively make law. a constitutional challenge to a bill by an assembly minority is simply a continuation of its lawmaking struggle with the majority. put differently, legislators invoking judicial review represent elements of the state’s law making apparatus, whose cohesion in a bill’s route to promulgation is assured by its constitution. this is not simply the theory; practically speaking, before the conseil constitutionnel, no delegation of deputies or head of government pleads how their personal constitutional rights will be compromised by the proposed law.50 conversely, this is the very first thing a litigant will plead in a private constitutional challenge, à l’américaine. in a system of official judicial review, a court applies constitutional law to prospective statutory law having regard to the impact each will have on the circumstances of the nation at large. in a system of ‘unofficial’ judicial review, the court applies constitutional law to statutory law with regard also to the impact each will have on the circumstances of the individual litigant.51 in other words, a qualitatively different paradigm is at work where citizens or other private entities may constitutionally vindicate their personal interests against the state and one another: here we find two sides contesting not simply the constitutionality of a law, but the constitutionality of a law as it relates to them as legal actors. we shall characterise this model as a system of ‘adversarial’ judicial review. having pursued this theoretical excursion we now are in a position to address the question of judicial predispositions towards particular constitutional cases in systems of adversarial review. if a party to a dispute exercises his right to have the constitution operate with regard to his personal circumstances (ie, if he litigates), an adjudicator cannot proceed without knowing the relationship between those circumstances and the constitution. since a given party will hold the best, and possibly the only, information on 50 for a selection of recent conseil constitutionnel briefs and decisions see http://www.conseil-constitutionnel.fr/divers/actu.htm 51 in using the term ‘apply’ here, i do not mean to imply that the courts in either system would fail to engage in some law-making while discharging these functions. http://www.conseil-constitutionnel.fr/divers/actu.htm scalia, hamdan and the principles of subject matter recusal 164 his own circumstances, it would appear irrational for an adjudication to take place without a party’s input. but a party’s right to have the constitution operate with regard to his circumstances bears more fundamental implications.52 first, that it is inappropriate for an adjudicator to deny a party the opportunity of having the law operate with respect to his circumstances by refusing to listen with an open mind to his account of those circumstances. thus, in hamdan, one would expect the members of the us supreme court to listen to hamdan’s account of the facts. we have no reason to believe justice scalia failed do so. the second implication is that an adjudicator ought to listen with an open mind to a party’s account of how the law at issue applies to his circumstances. in the absence of an open mind regarding the application of law to the facts, even full knowledge of a party’s account of his circumstances will not allow a judge to discharge his duty in adversarial litigation. so in hamdan, the fact that justice scalia may have possessed full knowledge of hamdan’s presentation of his circumstances did not relieve him of his duty to listen with an open mind to hamdan’s legal arguments. though the second implied judicial duty does not follow as obviously as the first, it is as much a component of an individualised approach to administering justice.53 keeping an open mind towards a litigant’s legal argument is important for the proper administration of justice because it is only by way of their relationship to the law that the pertinence of a party’s circumstances becomes manifest. thus, the ‘fact’ that an accused party had a confession induced by torture is relevant to his subsequent trial only because it might violate what he 52 to clarify the use of the concept of ‘right’ in this context: a party has a right to ask a court to apply, say, article 9 of the uk human rights act/echr on religious freedom to his circumstances, to wit, that he has been prohibited from wearing a turban in his workplace. evidently, our prospective litigant could not take such a case were he unable to mention his workplace and religious circumstances. likewise, in applying article 9, a court could not simply ignore the litigant’s claim that he had been prohibited from wearing his turban, assuming the alleged prohibition went to the decisive legal issue(s). in one sense, the ‘right’ in question is a practical concomitant of the possibility of non official parties participating in litigation. the very point of such participation will be to bring law to bear on the circumstances of the participants. nevertheless, the concept of right i have in mind is broader than this – it is also a norm of concern for an individualised administration of justice. the right would thus apply outside the realm of purely constitutional adjudication. 53 in terms of the role which the notion of individuality plays in conceptions of the administration of justice, note its addition to the following formula of judicial impartiality, ‘the reason [for the fundamental nature of the right to fair hearing by an impartial tribunal] is obvious. all legal arbiters are bound to apply the law as they understand it to the facts of individual cases as they find them’ locabail (23) at 295 (joint judgment of bingham lcj, woolf mr and scott v-c). the denning law journal 165 says is a legal interest in constitutional due process. a party cannot choose which of his many circumstances to present to a court for the purpose of having the law applied thereto without a theory of how the law makes them relevant. a party would not know whether to mention his belief that he was tortured if he did not have a theory that he was entitled to due process and that due process proscribed the use of torture. a party’s presentation of his circumstances is thus a product of his theory of how the law makes them relevant – or how it ought to. consequently, until a court tests a party’s legal theory it cannot make much claim to have applied the law specifically to the party’s circumstances since it cannot assess the party’s presentation of those circumstances. for instance, until justice scalia listened to what hamdan had to say about the geneva conventions, he would not be able to understand why the petitioner mentioned that he was captured ‘on the field of battle in a war between the united states and the government of afghanistan’; both of which, arguably, represented mutual signatories of the geneva conventions during the 2001 war against the taliban’s afghanistan.54 if he did not understand why hamdan mentioned the facts he did, justice scalia would have been unable to assess hamdan’s facts on their own terms, know how the presented facts purported to relate to each other, or know what non-presented facts he should ask hamdan about. where a judge applies his theory of the law to a litigant’s facts (as scalia did to hamdan’s facts at his swiss q&a) without bothering with the litigant’s own theory of why those facts are legally relevant, he cannot claim to have diligently applied the law with regard to the litigant’s particular circumstances. this is so because the judge would have failed to investigate the prima facie reason for the party’s appearance in his court – that, given his circumstances, the law is on his side. in short, a party’s presentation of his personal circumstances represents the court’s primary source of information about them; if an assessment of it is neglected, the court cannot be certain to have satisfied his right to have the constitution operate with regard to his circumstances. practically speaking, a failure to approach the parties’ legal arguments with an open mind would risk leaving a court shooting in the dark with respect to their circumstances.55 i 54 brief for the petitioner before the us supreme court, no 05-184 at 7. 55 the point here is not that courts invariably follow the legal direction suggested by the parties’ arguments or that they should feel reluctant to decide cases sua sponte. rather, the point is that it would be exceptional, and generally regarded as incorrect, for a court to decide a case sua sponte or otherwise without listening to counsel’s argument as to how it should be decided. having done so, the court is of course free to do whatever it thinks is best. conversely, ‘shooting in the dark’ is unproblematic in a system of official review since the court owes no duty to the persons of the initiating officers. the court is at large with respect to how its decisions affect the particular circumstances of its referents, qua referents. scalia, hamdan and the principles of subject matter recusal 166 should emphasise that this concern regarding extrajudicial commentary does not apply where a judge’s thinking – however controversial – is framed in the abstract, without regard to upcoming cases. rather, our analysis pertains to judicial remarks which set out the law to be applied in a pending case. such commentary would indicate a close mindedness towards the case’s subject matter. given the implications of such an attitude for the individualised administration of justice in an adversarial system, remarks of that nature warrant a judge’s recusal. the distinction between a judge’s dispositions in relation to a particular party’s prospects and his preferential attitudes to certain moral and policy positions is now readily apparent. moral preferences in genuinely hypothetical scenarios do not prejudice the realisation of any party’s right to the constitutional vindication of his particular circumstances since they do not compromise a judge’s ability to appreciate the legal theory explaining a party’s presentation of his circumstances.56 section c: the dissenting opinion the final element of the realist objection to the recognition of a principle of judicial open-mindedness lies in the operation of dissenting opinions. in relation to capital punishment, one us supreme court justice went so far as to declare in a dissent that, “[f]rom this day forward, i no longer shall tinker with the machinery of death.”57 likewise, justice scalia expressed views similar to those he advocated in switzerland in his dissent in rasul v bush.58 56 note that there is no analogy between personal interest bias (at least of a pecuniary nature) and the normative preconceptions affecting judicial approaches to the determination of cases. the latter are an essential element of appellate adjudication, the former are not. cf philip bryden, ‘legal principles governing the disqualification of judges’ 82 canadian bar rev 3 (2003) at 555, 589, ‘if we must recognize that our law requires parties to take on faith to some extent the ability of our judges to be open-minded in deciding cases that require them to examine their own views and predispositions, there is a certain irony in our reluctance to require parties to accept the ability of judges to act impartially when relatively insignificant personal interests are at stake.’ in truth, there is no conflict between open-mindedness in deciding individual cases and the use of personal normative views in the making of those decisions. if, having listened to a litigant’s presentation of their position, a judge makes a choice that is within the ambit of his normative discretion, we might well consider that choice normatively misguided. having applied his discretion equally to each party’s position, we cannot, however, regard the judge as partial. conversely, one may be as open-minded as solomon as to whether one’s financial interest in the outcome of a case ought to affect that outcome, but one will remain nonetheless a judge in one’s own case. 57 callins v collins, 510 us 1141(1994) (blackmun j dissenting). 58 rasul v bush 542 us 466 (2004). the denning law journal 167 by allowing minority judges to express their views as to the correct interpretation of the law (notwithstanding the majority’s definitive interpretation thereof) while not expecting them to adopt the majority’s version in future cases, we are recognising that judges have ideas as to what the law should be and that those ideas will affect how they dispose their future cases. thus, if we are going to permit judges to publish dissents, how can we coherently hold them to a standard of subject matter impartiality? the first point to note is that if a judge were to extrajudicially articulate an abolitionist platform in apparent reference to a particular capital case he would open himself to the same charge of judicial partiality we have been canvassing in relation to justice scalia in hamdan. in terms of blackmun’s dissent, it is arguable that the judge was not in fact construing the law with regard to particular capital cases but was instead setting out a general philosophy that was open to being countered by a state in any given case.59 but either way, it is perfectly possible for a judge to intend his opinion in case a, dissenting or otherwise, to rule his decision in case b, prior to having heard argument in the latter. in common with majority opinions, dissents are ex cathedra judicial statements. they enjoy a place in the theories of authority adhered to in most adversarial legal systems – certainly that of the united states. how often have we heard approving judicial reference to murphy’s dissent in korematsu,60 holmes’ dissent in lochner,61 harlan’s dissent in plessy?62 in the recent lawrence v texas63 decision, the supreme court overruled its decision of 17 years earlier, bowers v hardwick.64 in so doing, the court 59 see fn 27, ‘. . . i believe that the death penalty, as currently administered, is unconstitutional. perhaps one day this court will develop procedural rules or verbal formulas that actually will provide consistency, fairness, and reliability in a capital sentencing scheme.’ 60 korematsu v us 323 us 214 at 233 (1944) (murphy j dissenting). for supreme court majority opinions citing the dissent see for instance hamdi v rumsfeld 542 us 507 at 535 (2004); adarand constructors, inc v pena 515 us 200 at 215 (1995) and city of richmond v j a. croson co 488 us 469 at 501 (1989). 61 lochner v new york 198 us 45 at 65 (1905) (holmes j dissenting). for supreme court majority opinion citations see for instance college sav bank v florida prepaid postsecondary education expense board 527 us 666 at 691 (1999); planned parenthood of southeastern pennsylvania v casey 505 us 833 at 861 (1992) and rivera v minnich 483 us 574 at 578 (1987). 62 plessy v ferguson 163 us 537 at 552 (1896) (harlan j dissenting). for supreme court majority opinion citations see for instance johnson v california 543 us 499 at 513 (2005); romer v evans 517 us 620 at 623 (1996) and new york v us 505 us 144 at 185 (1992). 63 539 us 558 (2003). 64 478 us 186 (1986). scalia, hamdan and the principles of subject matter recusal 168 quoted a passage from justice stevens’ bowers dissent and held that “justice stevens’ analysis, in our view, should have been controlling in bowers and should control here.” it is difficult to imagine the court drawing on a contemporaneous public lecture by justice stevens to make the same point. conversely, it is easy to imagine justice scalia’s dissent in rasul being cited in a future supreme court decision on the executive’s war powers, whereas there would be no question of considering the citation of his substantively similar comments in switzerland. none of this is to say that dissenting opinions possess anything remotely like the degree of authority accorded to previous court decisions, simply that they possess some element of judicial authority. in practice, dissents, like majority opinions, are taken to play a part in the doctrine of precedent, which in turn is taken to play a part in the jurisdiction’s theory of legal authority. when judges hold forth in their bench opinions they are exercising an authority which the legal system has accorded them. in majority, they are, in part, creating law. in dissent, they are creating intimations of law which lie dormant, perhaps forever, but which both detract from the degree of authority accorded to the original decision65 and which facilitate a future judicial change of course. as such, there is no analogy between off bench q&a sessions and ex cathedra judicial pronouncements. the latter represent the legal authorities governing future cases (albeit to greatly differing degrees), the former represent the opinions of those who must yet determine, on an ad hoc basis, what the law should be in future cases. like majority opinions, dissenting opinions take on a systemic identity independent of their authors. once handed down, their authority would not be overridden by any contrary extrajudicial assertion their authors might make. consequently, a dissenting opinion, even if intended by its author to apply to another, as yet unargued case, cannot be regarded as prejudicing the litigants of that future case since, once expressed, it is no longer a creature of that author’s intent. by definition, litigants seek the justice provided by their legal system’s theory of authority, that is, they come to advance their interests by exercising their right to have the constitution applied to their particular circumstances. the judicial operation of that theory of authority – the judicial citation of previous judicial opinions, including dissents – is what litigants have expressed an interest in obtaining. litigants cannot subsequently criticise the operation of that theory as partial because a judge cites his previous dissent. such citations represent a working element of the jurisdiction’s theory of authority; a theory the parties recognised by litigating on its terms. by contrast, extrajudicial speeches constitute a non-authoritative 65 it is rare for a court to omit the fact that the supporting precedent it is citing was a unanimous opinion. the reason for this is evident – unanimity is deemed to increase, albeit only slightly, the authority of the citation. the denning law journal 169 vehicle for the expression of normative opinions. as such, when directed at particular cases, the views they disclose may compromise the litigant’s prospects for a specific (ie, ad hoc) determination of the law with respect to his individual circumstances. conclusion questions of subject matter prejudice can be problematic. the maintenance of a consistent approach to such questions – at least those arising from acts of appellate adjudication – will be not realised in the absence of a clearly theorised account of the underlying need for judicial impartiality. in practice, we would be likely to find ourselves criticising the non-recusal decisions of judges whose philosophies we find disagreeable while happily attending the lectures of those whose philosophies we admire. the foregoing analysis suggests that a line may be drawn between a judge’s preconceptions concerning controversial matters relevant to a legal dispute before him and any preconception he might have regarding how those matters relate to that dispute. drawing the line in this fashion would preserve individualised judicial attention to litigants as an element in our theory of the proper administration of justice. taking this approach would recognise statutory recusal norms such as the us code’s section 455, or indeed the us constitution’s fourteenth amendment,66 as coherent markers for judicial propriety within jurisdictions featuring judicial discretion and dissenting opinions. we may thus conclude that justice scalia’s apparent contravention of these laws in his adjudication of hamdan’s petition was an action which may not be excused on the ‘realist’ ground that, whatever the doctrinal position, appellate judges will inevitably have normative preconceptions going into any dispute. a question deserving of further consideration is the precise role of ‘the appearance of justice.’ the notion is widely employed as a test for recusal, and can be understood either as a normative end in itself67 or as a method of ensuring that as few as possible actually partial judgments occur.68 perhaps the best characterisation of the ‘appearance of justice’ in the former role would be that the reasonable person has a right to be confident that her jurisdiction’s legal system operates impartially – in addition to any right to be 66 as interpreted in re murchison (n 25). 67 a plausible interpretation of hewart lcj’s famous dictum that it ‘is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done.’ r. v sussex justices, ex parte mccarthy [1924] 1 k.b. 256 at 259. 68 see ebner (n 23) para 7. scalia, hamdan and the principles of subject matter recusal 170 subject to a legal system which operates impartially. however, given what we can expect the reasonable person to acknowledge regarding the quasi legislative nature of adjudication, it is unclear how abstract extrajudicial commentary could shake her confidence in judicial impartiality – even where the commentary concerns itself with controversial questions.69 thus in practice, at least as regards subject matter prejudice, whether ‘reasonable appearance’ is recognised as an independent principle rather than simply an indispensable instrument for eliminating substantive partiality might not make very much difference. 69 recall that we are merely addressing the issue of judicial impartiality; a perfectly impartial judge might use his discretion to bring immoral or misguided philosophies to bear on the cases before him. human rights, 'arranged' marriages and nullity law: when do 'force', parental denning law journal 2014 vol 26 pp 149-169 equity’s jurisdiction to relieve against forfeiture of leases – an historical perspective mark pawlowski ∗ absract this article seeks to trace the evolution of equity’s jurisdiction to relieve against the forfeiture of leases from the early 17th century cases through to the present day in the united kingdom jurisdiction. although the celebrated case of sanders v pope,1 decided in 1806, marked a trend towards a more flexible (discretionary) approach to equitable relief, this was to be short lived following lord eldon’s judgment in hill v barclay2 in 1811 declining to grant relief against forfeiture of a lease for a wilful breach of covenant not involving the failure to pay rent even where the same was capable of adequate compensation. this remained the position until 1973, when the house of lords in shiloh spinners ltd v harding3 took the opportunity to review the whole question of the scope of equity’s jurisdiction to relieve against forfeitures. what emerged was a principled approach to the grant of equitable relief which was not limited to the two orthodox heads of relief: (a) where the right to forfeit was inserted by way of security for the payment of rent and (b) where the breach had been occasioned by fraud, accident, mistake or surprise. the shiloh ruling paved the way for the granting of relief for breaches of other covenants in the same way as that in the case of rent, namely, to prevent a forfeiture where the landlord may be adequately compensated and receive proper undertakings as to future performance, so that the forfeiture clause is merely security to achieve these results. the article also examines the current scope of equity’s jurisdiction to relieve against forfeiture given that the court’s statutory power to grant relief has been gradually extended in the landlord and tenant context from the single case of non-payment of rent till it has reached its present dimensions of a broadly based jurisdiction to relieve against virtually all forms of default by ∗ ll.b (hons), bcl (oxon), aciarb, sfhea, barrister, professor of property law, school of law, university of greenwich. 1 (1806) 12 ves jun 283; 33 er 108. 2 (1811) 18 ves jun 56; 34 er 238. 3 [1973] ac 691. 149 equity’s jurisdiction to relieve against forfeiture of leases – an historical perspective the tenant, sub-tenant or mortgagee. what emerges is a more limited, but no less significant, equitable power to grant relief outside the court’s statutory jurisdiction. in jurisprudential terms, it is argued, equity’s ability to prevent the unconscionable exercise of legal rights remains at the heart of our common law tradition. 1. introduction to the ordinary person, the term “equity” connotes justice and fairness reflecting some universally accepted concept of right and wrong. to the lawyer, however, brought up in the common law tradition, it has been associated with judicial decision-making to ensure that justice is done between the parties to a dispute. to this extent, the term has acquired a specific and technical meaning, namely, that body of law which evolved historically through the court of chancery to mitigate the rigours and deficiencies of the early common law. in the words of lord ellesmere in the earl of oxford’s case,4 heard in 1615: “[men’s] actions are so diverse and infinite that it is impossible to make any general law which may aptly meet with every particular and not fail in some circumstances. the office of the chancellor is to correct men’s consciences for frauds, breaches of trust, wrongs and oppression of what nature so ever they be, and to soften and mollify the extremity of the law.” undoubtedly, the greatest influence of equity has been in the development of english land law, in particular, the granting of relief5 against the forfeiture of leases. the landlord’s right to forfeit (i.e., terminate) a lease for breach of any tenant’s covenant or condition in the lease, regardless of the gravity or seriousness of the breach, was seen as one of the common law’s harshest of remedies which had the potential to cause grave injustice to the defaulting tenant. it is not surprising, therefore, that from earliest times, the court of chancery recognised an equitable jurisdiction to relieve against forfeiture of leases where the landlord could be put back into the same position as if the tenant’s obligation in question had not been broken.6 the underlying principle 4 (1615) 1 rep ch 1, 6. 5 in the sense of allowing the tenant to retain his leasehold term. 6 see generally, white and tudor’s leading cases in equity, (9th ed, 1928), vol. 2, pp 222-227, 235-236 and 239-241; woodfall’s law of landlord and tenant, (21st ed), pp 405-407 and platt on leases, vol 2, pp 485 et seq. 150 the denning law journal determining relief was whether the landlord could be adequately compensated for his loss occasioned by the tenant’s breach. whilst, however, there was no difficulty in compensating a landlord for a tenant’s failure to pay rent in due time by simply permitting the tenant to tender late payment with interest and costs,7 other breaches did not readily permit the placing of the landlord in the same position he would have been if no breach had occurred. for this reason, as we shall see, no relief could be given in respect of a tenant’s breach of covenant not to assign or sub-let, to insure or to carry out repairs to the demised premises.8 in each of these cases, the courts of equity declined relief to the tenant because it was not possible to quantify the extent of the landlord’s loss or injury occasioned by the breach. although some attempt was made judicially to widen equity’s jurisdiction in the early 19th century, it was not until 1973 that the house of lords confirmed that this inherent jurisdiction extended beyond the granting of relief for nonpayment of rent to cover wilful breaches of other forms of covenant. the long history surrounding the evolution of equity’s willingness to grant relief against forfeiture of leases is a fascinating story with all the twists and turns of a romantic novel. we begin with the earliest cases decided in the 17th century where the notion of relief based upon a compensatory principle was first developed. 2. relief upon making measurable compensation the earliest reported case appears to be cage v russell,9 decided in 1681, where a testatrix left lands to the executors of her will to pay the sum of £500 out of them to her son when he should reach the age of 21. the devise was made subject to the proviso that, if the father’s son failed to give a release for the lands, the sum of £500 was to be forfeited to the executors. the father was subsequently willing to grant the release and the court decreed payment of the £500 to the son stating that: 7 it was assumed that, if the money was paid with interest and costs, this was a sufficient indemnity to the landlord. yet, in a number of cases, no doubt, considerable inconvenience was suffered by the landlord not having the money paid at the due time. any such inconvenience, however, appears to have been disregarded by equity in granting relief. this was recognised by lord eldon in reynolds v pitt (1812) 19 ves 134, 34 er 468, where he said: “the failure of the payment at the time may be attended with mischievous consequences, that never can be cured in a rational sense by subsequent payment with the addition of interest”. 8 see, eden, a treatise on the law of injunctions, (1821), p 26 and comyn, treatise on the law of landlord and tenant, (1821), pp 494-495. 9 (1681) 2 vent 352; 86 er 481. 151 equity’s jurisdiction to relieve against forfeiture of leases – an historical perspective “it was the standing rule of the court, that a forfeiture should not bind where a thing may be done afterwards, or any compensation made for it. as when the condition was to pay money or the like.” an early formulation of this principle is to be found in the judgment of lord nottingham lc in popham v bampfeild:10 “when the court can in any case compensate the party in damages for the non-precise performance of the condition, there it is just and equitable to relieve”. another 17th century case is webber v smith,11 where the landlord forfeited the tenant’s interest in a number of houses on the ground of the latter’s failure to pay rent and repair the houses in accordance with the terms of the lease. the tenant had sub-let the premises and the sub-tenants were granted relief from forfeiture upon payment of the arrears and repair of all the houses. these early cases paved the way for the emergence of the principle that equity only had jurisdiction to relieve against a forfeiture where the object of the forfeiture clause was to secure payment of a definite sum of money. in grimstone v bruce,12 for example, certain lands were devised upon condition that the devisee paid the testator’s debts and legacies. one such legacy involved a payment of £30,000 to the testator’s grand-daughter to be paid (initially) in instalments of £1,000 per year. the condition was broken but lord chancellor cowper granted relief by allowing late compliance with the condition and awarding payment of interest on each instalment from the time each fell due for payment together with the costs of the action. it was not, however, until 1721 that the principle was clearly formulated by lord macclesfield in one of the leading cases of the period. in peachy v duke of somerset,13 the owner of a copyhold estate had entered into various leases contrary to the custom of the manor and without licence of the lord. he sought to be relieved from the forfeiture of his estate by offering to make recompense for the breach but his lordship refused relief, stating:14 “the true ground of relief against penalties is from the original intent of the case, where the penalty is designed only to secure money, and the court gives him all he expected or deserved: but it is quite otherwise in the present case. these penalties or forfeitures were never intended by way of compensation, for there can be none.” 10 (1682) 1 vern 79, at 83; 23 er 325, at 326. 11 (1689) 2 vern 103; 23 er 676. 12 (1707) 2 vern 594; 23 er 986. 13 (1721) 1 stra 447; 93 er 626. 14 ibid, 453; 630. 152 the denning law journal this narrow view of the scope of equity’s jurisdiction was also favoured in the subsequent case of descarlett v dennett,15 where sir joseph jekyll mr refused to grant relief on the basis that: “the court of chancery cannot relieve the non-performance of a covenant or condition, the prejudice in breach of which cannot be estimated by damages”. two years later, a similar conclusion was reached in wafer v mocatto,16 where the claimant, the tenant of certain houses in london, assigned the same in breach of a covenant in the lease not to assign without the prior consent of the landlord. lord macclesfield took the opportunity to re-iterate the view he adopted in the peachy case by saying that: “this court never relieves but in such cases where it can give some compensation in damages and where there is some rule to be the measure of damages, to avoid being arbitrary”. in this case, the court proceeded on the basis that the landlord could not be returned to his position prior to the tenant’s breach because, where there was an assignee without licence, the court could not ascertain the compensation which should be awarded to the landlord for having a new tenant forced upon him. a number of early cases also sought to restrict equitable relief to cases not involving wilful neglect or misconduct on the part of the defaulting party. in eaton v lyon,17 for example, the tenant failed to serve a formal notice of exercise of an option to renew a lease within a specified time. in refusing the tenant relief, lord alvanley said: “at law a covenant must be strictly and substantially performed according to the true intent and meaning of the parties, so far as circumstances will admit; but if by unavoidable accident, if by fraud, by surprise, or ignorance not wilful default, parties may have been prevented from executing it literally, a court of equity will interfere; and upon compensation being made, the party having done everything in his power and being prevented by the means i have alluded to, will give relief.” 18 this was not, however, the approach taken by lord erskine eight years later in the celebrated case of sanders v pope,19 involving a lease of a public house which contained a covenant on the part of the tenants to spend the sum of £200 in improving and repairing the premises before the end of the first 15 (1722) 9 mod 22; 88 er 290. 16 (1724) 9 mod 12; 88 er 348. see also, rose v rose (1756) amb 331; 27 er 222. 17 (1798) 3 ves jun 691; 30 er 1223. 18 ibid, 692-693; 1224. 19 above n 1. 153 equity’s jurisdiction to relieve against forfeiture of leases – an historical perspective five years of the term. the tenants failed to carry out the repairs and the landlord forfeited the lease. the issue before the court was whether the tenants were entitled to relief in equity upon them laying out the sum of £200 in repairs or otherwise making compensation to the landlord for their breach. in granting relief, lord erskine, in a classic judgment, said:20 “there is no branch of the jurisdiction of this court more delicate than that which goes to restrain the exercise of a legal right. that jurisdiction rests only upon this principle; that one party is taking advantage of a forfeiture; and as a rigid exercise of the legal right would produce a hardship, a great loss and injury on the one hand arising from the going to the full extent of the right, while on the other the party may have the full benefit of the contract, as originally framed, the court will interfere; where a clear mode of compensation can be discovered.” in the instant case, the covenant provided for the expenditure of a specific sum of money (£200) on the property over a period of five years and, consequently, the difficulty of seeking to make an award of general damages to compensate for the breach did not arise. however, it is significant that the court was not prepared to draw any distinction between expenditure of a specified sum on repairs within a prescribed period and payment of arrears of rent. in this connection, lord erskine observed:21if it is a subject admitting of certain calculation, though not a specific sum of money or rent, relief may be given.” his lordship also had occasion to refer to the judgment of lord alvanley in eaton v lyon (where, it will be recalled, it was sought to confine equity’s jurisdiction to cases where there was no wilful neglect or misconduct on the part of the party in breach) and said:22 “if the covenant is broken with the consciousness that it is broken, that is, if it is wilful, not by surprise, accident or ignorance, still if it is a case, where full compensation can be made, these authorities23 say, not that it is imperative upon the court to grant relief, but that there is a discretion.” 20 ibid, 289; 110. 21 ibid, 290; 111. 22 ibid, 293; 112. 23 see, cage v russell (1681) 2 vent 352; 86 er 481; northcote v duke (1765) amb 511; 27 er 330; hack v leonard (1724) 9 mod 90; 88 er 335; wafer v mocatto (1724) 9 mod 12; 88 er 348 and eaton v lyon (1798) 3 ves jun 691; 30 er 1223. 154 the denning law journal a year later, lord erskine re-iterated this view in davis v west,24 a case involving the forfeiture of a lease for non-payment of rent. the lord chancellor said: “. . . where the covenants are broken, and there is no fraud, and the party is capable of giving complete compensation, it is the province of a court of equity to interfere, and give relief against the forfeiture for breach of other covenants, as well as those for payment of rent.”25 there is no doubt that the case of sanders v pope marked a turning point in the evolution of equity’s jurisdiction to grant relief against forfeitures. it paved the way for the acceptance by equity of a more robust attitude to do justice between the parties irrespective of the nature of the covenant broken and the wilfulness of the breach, provided only that the interests of the injured party could be adequately protected by an appropriate form of order. where, therefore, strict reliance on the forfeiture would produce an injustice to the party in breach, equity had a discretion to intervene so long as measurable compensation could be made to the injured party. this broad approach to equitable relief was, however, to be short lived for in 1811 lord eldon, in the landmark case of hill v barclay26 declined to grant relief against forfeiture of a lease for a wilful breach of covenant not involving the failure to pay rent even where the same was capable of adequate compensation. 3. no relief for wilful breaches in hill v barclay,27 a covenant in the lease provided inter alia that, if the tenants did not, within a specified time period, spend £150 on repairs to the demised premises or otherwise did not repair the premises within three months of being notified to do so by the landlord, the latter was entitled to reenter the premises and forfeit the lease. the tenants failed to comply with the landlord’s notice within the time period stipulated but, nevertheless, began the works following the landlord’s action for ejectment. they then sought an injunction to restrain the landlord’s action on the ground that the works would be completed and the premises put in a complete state of repair. lord eldon 24 (1806) 12 ves 475; 33 er 180. 25 ibid, 476; 180. 26 above, n2. 27 see also, 16 ves jun 402; 33 er 1037, where lord eldon in an earlier motion in the case involving the tenant’s claim for an injunction to restrain the landlord’s ejectment said: “ . . . a court of equity would not relieve against a breach of a general covenant to do repairs”. 155 equity’s jurisdiction to relieve against forfeiture of leases – an historical perspective distinguished the earlier case of sanders v pope on the basis that it involved the laying out of a specific sum of money by the tenant towards the repair of the demised property and that the landlord had made no specific demand on the tenant to repair the premises prior to commencing his action for ejectment. in referring to the earlier cases, his lordship observed that a “very material consideration” which had been overlooked was that equitable relief could not be given in circumstances where the breach of the covenant was wilful. accordingly, on the basis that the breach in the case before him was both wilful and incapable of giving rise to an accurate estimate in damages, he dismissed the tenant’s motion for an injunction to restrain possession. his decision was, no doubt, influenced by a strong desire not to interfere with the contract made between the parties and, in particular, the landlord’s unfettered legal right to re-enter for breach of covenant in the absence of exceptional circumstances. a similar approach was adopted in rolfe v harris,28 where the tenant had neglected to insure the premises in breach of covenant. in refusing relief, sir t. plumer vc said: “. . . where the court will relieve, the omission and consequent failure, must be the effect of inevitable accident, and the injury or inconvenience arising from it must be capable of compensation; but where the transgression is wilful, or the compensation impracticable, the court will refuse to interfere.” a number of subsequent cases followed this reasoning. in reynolds v pitt,29 the tenant neglected to renew the insurance during a period of two years, but effected the policy on the very same day that the landlord brought an action for ejectment. lord eldon, after an extensive review of the earlier authorities, concluded that equity had no jurisdiction to relieve against the wilful breach of a covenant to insure. the case proceeded on the basis that the risk which the landlord had incurred during the period when no insurance was in force was something which could not be the subject of compensation. a leading case of the time (and which merits detailed analysis) is bracebridge v buckley,30where the court of exchequer refused to grant equitable relief to a tenant who was in breach of a covenant to lay out a sum of £1,000 to repair the demised premises within a stipulated time on the 28 (1811) 2 pri 202; 145 er 68. 29 (1812) 19 ves 134; 34 er 468. see also, lovat v lord ranelagh (1814) 3 ves & bea 24; 35 er 388. 30 (1816) 2 pri 200; 146 er 68. see also, white v warner (1817) 2 mer 459; 35 er 1016; green v bridges (1830) 4 sim 96; 58 er 37 and shearman v mcgregor (1853) 11 hare 106; 68 er 1206. 156 the denning law journal ground that it had no effective means of ascertaining precisely what compensation the landlord was entitled to in these circumstances. moreover, relief was denied notwithstanding the fact that no damage had been sustained by the delay in carrying out the repair works and that the premises would be put into as good (or even better) condition than they would have been if the covenant had been punctually performed. counsel for the tenant relied primarily on sanders v pope in support of the contention that equity had jurisdiction to relieve in cases where the covenant provided for the expenditure of a specific sum of money. he also referred to a number of matters which he argued made it just and equitable that relief should be granted. first, the tenant was willing to submit to any terms the court thought fit to impose even if this meant placing the landlord in a better position than he would have been if the covenant had been strictly performed in accordance with the terms of the lease. secondly, the tenant had been lulled into a false sense of security since the landlord had permitted him to continue in undisturbed possession of the premises for two years after the breach of covenant had occurred. thirdly, it was argued that, despite the specific time limit for carrying out the repairs under the lease, the parties had, in fact, understood that the tenant was to take his own time to proceed with the repairs. it was submitted, therefore, that the tenant’s breach could not be characterised as a wilful neglect to perform the covenant. moreover, the landlord had given no prior notice of his intention to re-enter for the breach. as to the court’s difficulty in securing that precise compensation was made to the landlord, it was suggested on behalf of the tenant that the court could direct an inquiry as to what sum would be necessary to put the premises into the same state of repair as they would have been if the money had been applied according to the terms of the lease. none of these arguments found favour with the majority of the court, but a strong dissenting judgment was given by baron wood who concluded that the tenant should be relieved on laying out the £1,000 towards the repairs and paying all the landlord’s costs of the action. in his view, equity could grant relief wherever it was possible to award sufficient compensation in damages to the injured party: “equity will relieve in almost all cases of forfeiture, if they can put the parties in as good a condition”.31 one exception to this broad principle was the breach of a covenant not to assign or underlet where no damage could be ascertained “because the tenant, though he might be perfectly solvent, may not be, in other respects, such a man as the landlord would choose”.32 for the same reason, the breach of a covenant to insure 31 ibid, 221; 76. 32 ibid, 221; 76. 157 equity’s jurisdiction to relieve against forfeiture of leases – an historical perspective could not be the subject of relief because the injury suffered by the landlord (i.e., the risk which the landlord would inevitably incur whilst the premises remained uninsured) was not susceptible of measurement by an award of damages. in the context of a tenant’s neglect to repair, however, the learned judge considered that the various objections to the practicability of granting relief were ill-founded: “the course of reference to the master is an answer to all those difficulties”.33 in adopting, therefore, an expansive approach to equity’s jurisdiction, he concluded: “all the cases must depend on the tenant, and be governed by their own particular circumstances. where, indeed, he has been guilty of wilful waste, or even presumptive waste, relief might properly be refused: but not for a mere want of repair, which, at the time of the application to be relieved, can be effectually supplied.” 34 the case of hannan v the south london waterworks company35 (decided in the same year) is also of interest. here, lord eldon, whilst reaffirming the principle that, in general, the court would not relieve against the breach of a covenant to repair, had occasion to grant equitable relief (in the form of an injunction restraining an action for ejectment) in favour of a tenant who was in breach of his covenant to repair the premises. the facts of this case were, however, considered by the lord chancellor to be exceptional in so far as the tenant had contracted to deliver up possession of the premises to a third party, who in turn intended to demolish the premises pursuant to the latter’s statutory powers. in this case at least, the court felt no difficulty in granting equitable relief upon terms which would compel the tenant to perform his obligations under the repairing covenant and make appropriate compensation to the landlords in the event of a proven diminution in value of their reversionary interest occasioned by the breach. inevitably, any such compensation would fall to be measured by means of an inquiry as to the market value of the landlord’s interest in the property in its unrepaired state and its condition on the assumption that the tenant had complied with his obligations under the lease. this, therefore, clearly marks a departure from the earlier authorities which denied relief for the very reason that the injury suffered by the landlord was not the subject of measurable compensation in cases involving disrepair. despite this apparent relaxation of the hill v barclay principle, the courts, nevertheless, continued to adopt a restrictive approach to the scope of equity 33 ibid, 223-224;77. 34 ibid, 225; 77. 35 (1816) 2 mer 65; 35 er 863. 158 the denning law journal jurisdiction to grant relief. a good example is harries v bryant,36 where sir john leach mr extended the meaning of wilful breaches to include an omission occurring through negligence as a result of a failure to act with reasonable diligence prudence. he said:37 “ignorance is considered to be wilful, where a person neglects the means of information, which ordinary prudence would suggest; and accident is not unavoidable, which reasonable diligence might have prevented.” thus, in bargent v thompson,38 for example, the court granted the tenant relief from forfeiture for non-repair of the premises on the exceptional ground that the remedial work had been delayed because of poor weather conditions.39 4. suspension of rights in the celebrated case of hughes v metropolitan railway co,40 the house of lords, whilst re-affirming what had by then become the established view that “equity had no general power to relieve against forfeiture by way of mercy or by way merely of saving property from forfeiture,41 held that equity could intervene to grant relief in exceptional circumstances where the party in default had been misled by the other party’s conduct into believing that the latter’s strict legal rights had been abandoned or suspended for a time. in hughes, the landlords had served a notice on the tenant to repair various houses forming the subject-matter of the lease within a period of six months expiring on april 22, 1875. upon service of this notice, the tenant 36 (1827) 4 russ 89; 38 er 738. see also, gregory v wilson (1852) 9 hare 683; 68 er 687, where sir g.j. turner vc said: “where a man, who knows that he is charged with a legal obligation, neglects to perform it, his neglect to do so must be deemed to be wilful and, if he persists in it, to be obstinate”, and elliott v turner (1843) 13 sim 477; 60 er 185, where sir lancelot shadwell vc suggested that the word “wilful” meant “spontaneous” so that, if the neglect or default arose from a voluntary act and not from the pressure of external circumstances over which the party in default had no control, the neglect or default fell to be classified as wilful. in his view, mere forgetfulness could amount to wilful neglect. 37 ibid, 91; 739. 38 (1864) 4 giff 473; 66 er 792. see also, bamford v creasy (1862) 3 giff 675; 66 er 579. 39 in hill v barclay, lord eldon himself observed: “i do not mean to apply these observations to cases of accident and surprise; the effect of the weather, . . . or permissive want of repair, the landlord standing by and looking on” (emphasis added): (1811) ves jun 56, 62; 34 er 238, 240. 40 (1877) 2 app cas 439. see also, bruner v moore [1904] 1 ch 305. 41 ibid, at 448, per lord cairns (lc). 159 equity’s jurisdiction to relieve against forfeiture of leases – an historical perspective made an offer to sell his interest in the premises to the landlords and various negotiations ensued culminating in a letter from the landlords (written on december 31, 1874) requiring a modification of the tenant’s proposals. no further communication was made between the parties until april 1875 when the landlords wrote stating inter alia that the tenant had had ample time to complete the repairs since december 1874 when negotiations had broken off. shortly after the expiry of the repair notice, the landlords brought an action for ejectment. the house of lords held that the tenant was entitled to be relieved from the forfeiture on the basis that the negotiations had the effect of suspending the notice and that this suspension did not come to an end until december 31, 1874. accordingly, till that time, the operation of the notice had been waived by the landlords so that no part of that time could be counted against the tenant in calculating the six months’ notice to repair. 5. fraud, accident, surprise and mistake the reluctance of the courts to expand the boundaries of equity’s jurisdiction is also amply illustrated by the court of appeal decision in barrow v isaacs.42 in this case, the tenants had underlet part of the demised premises without the prior consent of the landlord in breach of a covenant in the lease. the underletting had, in fact, been prepared by their solicitors who had omitted to look at the head lease and forgot that it contained the covenant not to underlet without consent. the undertenants were respectable and responsible persons and no injury had been suffered by the landlord by the grant of the underletting. moreover, the landlord would have had no valid objection to the underletting had consent, in fact, been asked. nevertheless, the court of appeal felt constrained to hold that the landlord was entitled to succeed in his action for possession on the ground that the omission to ask the landlord’s consent was not a mistake falling within the recognised heads of equity’s jurisdiction to grant relief. lord esher mr put the matter this way:43 “equity, it is said, will relieve against fraud, accident or mistake; and i think you must add that equity will only relieve when there can be complete compensation, or where there is no injury which requires compensation. under which head is this case brought? it is obvious that it is not fraud. this is not to be attributed to either of the parties. it is not accident, because it is the result of something which was done on behalf of one of the parties. is it a mistake? . . . if you treat mistake 42 [1891] 1 qb 417. see also, ellis v allen [1914] 1 ch 904, 909; eastern telegraph co ltd v dent [1899] 1 qb 835 and atkin v rose [1923] 1 ch 522, 539. 43 ibid, 420. 160 the denning law journal in its ordinary sense in the english language, is mere forgetfulness mistake? can you, in english, say, ‘i forgot’, and is this the same thing as saying ‘i was mistaken?’ i think not.” it is noteworthy, however, that the learned judge also concluded that, had the case been one of mistake, he would have granted equitable relief notwithstanding the fact that the tenants’ agent had acted negligently in failing to observe the terms of the lease. kay lj,44 on the other hand, in refusing equitable relief, felt no difficulty in holding the tenants responsible for the carelessness of their solicitors. in a brief historical analysis of equity’s jurisdiction to grant relief,45 he had cause to observe:46 “at first there seems to have been some hesitation whether this relief might not be extended to other cases of forfeiture for breach of covenants such as to repair, to insure, and the like, where compensation could be made; but it was soon recognised that there would be great difficulty in estimating the proper amount of compensation; and, since the decision of lord eldon in hill v barclay, it has always been held that equity would not relieve, merely on the ground that it could give compensation, upon breach of any covenant in a lease except the covenant for payment of rent. but of course this left unaffected the undoubted jurisdiction to relieve in case of breach occasioned by fraud, accident, surprise or mistake.” despite his obvious reluctance to interfere with well-established principles, there is a significant recognition in kay lj’s judgment that the court’s refusal to extend the limits of equity’s jurisdiction to relieve against forfeitures had produced anomalous and harsh results. he observed: “[there] ensued a long period in which equity seems to have refused relief in cases of breach of any other covenants in a lease. very hard cases occurred, in which unconscionable landlords insisted on their legal rights. especially hard were these forfeitures for breach of the covenant to insure where no damage had ensued . . .” 47 44 with whose judgment lopes lj agreed. 45 see also, howard v fanshawe {1895] 2 ch 581, 586-589, per stirling j and in re dixon, heynes v dixon [1900] 2 ch 561, per rigby lj. 46 [1891] 1 qb 417, 425. 47 ibid, 429. 161 equity’s jurisdiction to relieve against forfeiture of leases – an historical perspective the decision in barrow was applied in eastern telegraph company ltd v dent48 where thoughtlessness on the part of the tenant or failure on his part to realise the gravity of a breach of covenant not to underlet without the landlord’s consent were urged as grounds for relief against forfeiture. the argument was, however, firmly rejected by the court of appeal as having no foundation in principle or authority.49 the barrow ruling was also referred to by parker j in matthew v smallwood,50 where the learned judge said: “ . . .carelessness on the part of the person claiming relief could not be considered in a court of equity to be a mistake or accident of a nature which could afford a ground for relief.” 51 6. a discretionary approach to relief it will be evident from the foregoing review of the case law that equity’s jurisdiction to relieve from forfeiture of leases was limited to essentially two specific heads of relief, namely, (a) where the right to forfeit was inserted by way of security for the payment of a specific sum of money (such as rent) and (b) where the breach had been occasioned by fraud, accident, mistake or surprise. the emergence of this limited jurisdiction was, of course, largely attributable to the acceptance by the courts of the restrictive approach adopted by lord eldon in hill v barclay as opposed to the more liberal and expansive view promulgated by lord erskine in sanders v pope. at the heart of this dichotomy lay the court’s inherent inability to compensate the injured party for any loss occasioned by the breach by means of an appropriate award of damages. it was, therefore, this inherent (procedural) disability of the court of chancery which precluded the development of a coherent set of equitable principles for the relief of forfeiture under english law. because of this disability, the jurisdiction of equity was inevitably confined to very narrow limits where either the injured party could be compensated by payment of the specific money owed with interest and costs or where (because of his conduct) it would be manifestly unjust to permit a strict performance of his legal rights. coupled with this, however, was also the acceptance of lord eldon’s view (in 48 [1989] 1 qb 835. 49 where, however, the breach was occasioned by a bona fide belief, induced by the landlords’ agents that the landlord had expressly consented to an underletting (as opposed to a mere mistake committed on the part of the tenant and his advisers) relief was granted: upjohn v macfarlane [1922] 2 ch 256. 50 [1910] 1 ch 777. see also, wg clark (properties) ltd v dupre properties ltd [1992] 1 all er 596, 608. 51 ibid, 792. 162 the denning law journal preference to that of lord erskine) that equity would not relieve against a wilful breach of covenant. in this connection, the “wilfulness” of the breach came to be regarded as a matter that went to the court’s jurisdiction whether or not to grant relief and not merely as a factor that fell to be weighed (together with other factors) in exercising its discretion whether or not to relieve in a particular case. the foregoing remained the position52 until 1973, when the house of lords took the opportunity to review the whole question of the scope of equity’s jurisdiction to relieve against forfeiture of property in the landmark case of shiloh spinners ltd v harding.53 the leading speech was given by lord wilberforce, who restated the basis for equitable relief in these terms: “. . . we should affirm the right of courts of equity in appropriate and limited cases to relieve against forfeiture for breach of covenant or condition where the primary object of the bargain is to secure a stated result which can effectively be attained when the matter comes before the court, and where the forfeiture provision is added by way of security for the production of that result. the word ‘appropriate’ involves consideration of the conduct of the applicant for relief, in particular whether his default was wilful, of the gravity of the breaches, and of the disparity between the value of the property of which forfeiture is claimed as compared with the damage caused by the breach.” (emphasis added). it is evident from this passage that lord wilberforce was not prepared to limit equity’s jurisdiction to the two classical heads of relief referred to earlier. in his view, the policy of the law in granting the right to apply for relief from forfeiture for breaches of other covenants was the same as that in the case of rent, namely, to prevent a forfeiture where the landlord may be adequately compensated and receive proper undertakings as to future performance, so that the forfeiture clause is merely security to achieve these results. as to the question whether lord eldon’s view in hill v barclay remained good law in relation to covenants to repair and similar covenants concerning the condition of the property (other than those now specifically dealt with by statute), he said: 52 lord simon of glaisdale in shiloh spinners ltd v harding [1973] ac 691, 707, refers to the “trail from hill v barclay” as leading into a “juristic desert” and as demonstrating an “abnegation of equity”. 53 above n3. 163 equity’s jurisdiction to relieve against forfeiture of leases – an historical perspective “lord eldon lc’s decision was in fact based partly on the circumstance that he was concerned with a wilful default and partly on the impossibility of speculating whether the later doing of the repairs would compensate the landlord; such considerations remain relevant.” what is evident from this passage is that matters relating to the wilfulness of the breach and the adequacy or otherwise of compensation were now to be considered as mere factors influencing the court’s discretion whether or not to grant relief in a particular case. indeed, since the power of re-entry in shiloh was, clearly, inserted with the intention of securing enforcement of the various covenants in the assignment, lord wilberforce had no difficulty in holding that the court had the requisite equitable jurisdiction to grant relief. however, as a matter of discretion, he concluded that the court ought not, in the circumstances, to grant relief to the respondent. having examined all the evidence available to the trial judge, his lordship concluded that the case was not one suitable for relief because of the respondent’s clear and wilful braches of the covenants and his inability to make good the consequences of his default. 7. current scope of equity’s jurisdiction there have been a number of cases decided since shiloh which have raised the question whether the equitable jurisdiction to relieve from forfeiture of a lease has survived the relevant legislation giving the statutory right to such relief or whether such legislation has, in effect, impliedly extinguished the inherent jurisdiction in relation to leases. in one group of cases, an inherent equitable jurisdiction to grant relief was upheld in circumstances where the condition for obtaining relief under the relevant statute did not apply. in ladup ltd v williams & glyn’s bank plc,54 the claimant recovered judgment for a sum of £43,000 in an action against the tenant of a residential flat and, in order to enforce the judgment, obtained a charging order in respect of the tenant’s lease of the flat. subsequently, the landlord brought proceedings against the tenant for forfeiture of the lease for non-payment of rent and obtained possession of the flat. the claimant creditor then sought relief from forfeiture as being a person interested in the lease by virtue of the charging order. warner j held that the court was entitled, in the exercise of its inherent equitable jurisdiction, to grant relief to an equitable charge who had no interest in the lease entitling him to possession of the demised premises. in his view, there was no fetter on the jurisdiction of a court of equity to relieve against forfeiture where the object of the right to 54 [1985] 2 all er 577. 164 the denning law journal forfeit was essentially to secure payment of a sum of money as in the case of a right to forfeit a lease for non-payment of rent. the ladup case can, therefore, be explained on the basis that relief against forfeiture for non-payment of rent falls within a class of its own so that the relevant statutory provisions were not to be treated as being exhaustive. similarly, in abbey national building society v maybeech,55nicholls j held that, whilst no relief was available in respect of the failure to pay service charge contributions under s.146(4) of the law of property act 1925 (which applied to other breaches as well as non-payment of rent) because there were no longer any landlord’s proceedings during the pendency of which the claimant could apply for relief under that section, nevertheless, this did not preclude the court from exercising its equitable jurisdiction to grant relief from a failure to pay a specific sum of money. in both the ladup and maybeech cases, very clear grounds existed for affording relief to the chargee and mortgagee, respectively, due to the gross disparity in both cases between the possible ultimate loss to the landlord in having to wait a little longer for his rent arrears and the value of the leasehold security which the applicants for relief stood to lose. in a second group of cases, however, an inherent equitable jurisdiction was denied in the face of the existence of a statutory jurisdiction covering the area in point. in official custodian for charities v parway estates development ltd56 (decided on the same day as the maybeech case), the question was whether the court had jurisdiction to grant equitable relief from the tenant’s liquidation in circumstances where no such relief was available under s.146(10) of the law of property act 1925 because the application for relief had not been made within one year of the tenant’s liquidation as required by that section. the court of appeal held that, where the legislature had enacted particular legislation in a particular area (as, for example, in s.146(10) of the 1925 act), the effect had to be given to it so that any wider equitable jurisdiction was thereby ousted. this reasoning was followed by walton j in smith v metropolitan city properties ltd,57 a case involving the forfeiture of a lease for a tenant’s breach of covenant to repair. here, the tenant, against whom forfeiture proceedings had been completed (and the landlord had re-taken possession of the demised premises), sought to re-open 55 [1985] 1 ch 190. see also, cardigan properties ltd v consolidated property investment ltd [1991] 07 eg 132, where mr p.j. cox qc, sitting as a deputy judge of the high court, was prepared to grant relief under equity’s inherent jurisdiction which, in his view, s.146 of the law of property act 1925 had not, in the absence of express words, completely ousted. 56 [1985] 1 ch 151. 57 (1986) 1 eglr 52. 165 equity’s jurisdiction to relieve against forfeiture of leases – an historical perspective the question of relief by invoking equity’s inherent jurisdiction to grant relief. the essence of the tenant’s argument was that, although the statutory jurisdiction under s.146(2) of the 1925 act could not be relied on (as the landlords’ proceedings had been completed), the court still had an equitable jurisdiction to grant relief in any circumstances in which the statutory jurisdiction was not available. walton j held that such an argument was untenable on the authorities and “quite fantastic”.58 in his view, the equitable jurisdiction to relieve for breach of covenant as between landlord and tenant (other than non-payment of rent) no longer existed. the court’s hostility to acknowledging the existence of inherent equitable relief within the compass of statutory provision is also highlighted in di palma v victoria square property ltd,59where the tenant sought equitable relief in the high court, having failed to pay arrears of rent in due time in compliance with a court order made pursuant to s.138 of the county courts act 1984. the court of appeal held that a tenant sued in the county court for non-payment of rent could only seek relief from forfeiture under the provisions of s.138 of the 1984 act and that the words “barred from all relief” contained in s.138(7) meant he was barred from obtaining all relief whatsoever, including relief that might be obtained other than under s.38, namely, in the high court. although the actual decision has been somewhat tempered since the amendment of s.138 by virtue of s.55 of the administration of justice act 1985, the decision illustrates the modern trend of the case law to rule out the possibility of equitable relief in the face of statutory intervention. this trend is, perhaps, most vividly shown in billson v residential apartments ltd,60 where the majority of the court of appeal held that the inherent jurisdiction as between landlord and tenant to relieve against forfeiture from a wilful breach of covenant (other than non-payment of rent) had been entirely extinguished by the provisions of s.146 of the law of property act 1925. in the course of his judgment, sir nicholas brownewilkinson vc took the opportunity to examine the effect of the legislation on the three recognised heads of equity jurisdiction to relieve against forfeiture, namely, in the case of (a) fraud, accident or mistake (b) non-payment of rent or other specific sums of money and (c) wilful breach of covenant other than non-payment of rent where adequate compensation could be made for the breach. under (a), relief could still be granted in an appropriate case even 58 ibid, 53. 59 [1986] ch 150. 60 [1991] 3 all er 265. 166 the denning law journal where the fraud, accident or mistake arose in the context of a lease. on this point, the vice-chancellor observed:61 “in my judgment, the general equitable jurisdiction to relieve from the consequences of fraud, accident or mistake has never been affected by the statutory provisions and is not affected by section 146. say a landlord was by fraud to procure the tenant to commit a breach of covenant and then forfeited the lease and obtained possession. can it be doubted that the court would relieve against the forfeiture on the grounds of fraud even though the statutory jurisdiction to grant relief was no longer exercisable?” under (b), the vice-chancellor concluded that the equitable jurisdiction remained intact and that the relevant legislation (which was largely procedural) merely modified and limited equity’s power to grant relief in certain respects, particularly in relation to time-limits. moreover, the inherent jurisdiction to relieve without time-limit continued to apply in cases involving a forfeiture by peaceable re-entry. under (c), following a brief review of the earlier case law referred to earlier,62the vice-chancellor concluded that the equitable jurisdiction to relieve from wilful breaches of covenant (other than on-payment of rent), which had been resurrected retrospectively by the house of lords in the shiloh case, had been extinguished in the landlord and tenant context by reason of parliament having legislated comprehensively in that field. 8. conclusion from earliest times, equity recognised that it had jurisdiction to relieve against forfeiture where the object of the forfeiture clause was to secure payment of a definite sum of money. accordingly, the court of chancery allowed a tenant to keep his lease provided that he paid the arrears of rent and the landlord’s costs and expenses by a specified time. this equitable jurisdiction remains intact to this day subject only to various statutory provisions which have merely modified equity’s power to grant relief in certain procedural respects. whilst these provisions differ as between high court and county court, the nature of relief in both jurisdictions continues to 61 ibid, 282. 62 notably, official custodian for charities v parway estates developments ltd [1985] ch 151; abbey national building society v maybeech [1985] ch 190 and smith v metropolitan city properties ltd (1986) 1 eglr 52. 167 equity’s jurisdiction to relieve against forfeiture of leases – an historical perspective be rooted in equity’s inherent power to relieve against forfeiture for nonpayment of rent. whilst equity’s jurisdiction to grant relief against forfeiture for nonpayment of rent remains extensive, its jurisdiction to grant relief in cases involving other breaches of covenant has had a chequered history. this is because, historically, the underlying principle governing relief was whether the landlord could be adequately compensated for his loss occasioned by the tenant’s breach. thus, whilst there was no difficulty in compensating a landlord for a tenant’s failure to pay rent by simply permitting the tenant to tender late payment with interest and costs, other breaches of covenant did not readily permit the placing of the landlord in the same position he would have been if no breach had occurred. coupled with this inherent difficulty was the court of chancery’s acceptance of the principle that equity would not relieve against a wilful breach of covenant other than one involving the non-payment of a specific sum of money. the result, as we have seen, was the emergence of only a limited equitable jurisdiction to relieve from forfeiture restricted essentially to two specific heads of relief, namely, (a) where the right to forfeit was inserted by way of security for the payment of specific sum of money (such as rent) and (b) where the breach had been occasioned by fraud, accident, mistake or surprise. the foregoing remained the position until the decision in shiloh in which the house of lords redefined the scope of equity’s jurisdiction in more expansive terms so that the courts now retain the right, in appropriate circumstances, to relieve against forfeiture for breach of covenant or condition where the primary object of the bargain is to secure a stated result which can effectively be attained when the matter comes before the court and where the forfeiture provision is added by way of security for the production of that result. a modern example of the application of this principle is to be found in the recent case of cukurova finance international ltd v alfa telecom turkey ltd63 where the privy council held, by a majority, that it had a discretion, in exceptional circumstances, to grant equitable relief from forfeiture to a company on the basis that account should be taken of the fact that, although the company had defaulted on a facility agreement resulting in an appropriation of that security, it would be inequitable to ignore the circumstances of a subsequent offer of repayment under the agreement. although this resurrected jurisdiction remains intact in a general sense, it has now been overtaken in the landlord and tenant context by virtue of the provisions of s.146 of the law of property act 1925. the upshot of this is that relief against forfeiture in respect of breaches of covenant or condition other than non-payment of rent is now governed exclusively by statute in the 63 [2013] ukpc 20. 168 the denning law journal landlord and tenant field, except in cases where there is some element of fraud, accident, surprise or mistake64 or in circumstances where the statutory code does not apply.65 the retention of this inherent (albeit now limited) equitable power to grant relief from forfeiture of leases outside the statutory jurisdiction remains significant. the function of the common law has been to establish rules to govern the generality of cases and to promote certainty in our law. at the heart of equity is the notion that the requirement of certainty in decisionmaking needs to be tempered by the need for judicial discretion to achieve fairness in individual cases and to restrain the exercise of legal rights in order to ensure justice between the parties. in this sense, the common law and equity remain distinct but mutually dependent aspects of english law. equity’s function, in particular, is to regulate and supplement the common law by preventing inequitable or unconscionable results – a function that is no better evidenced, it is submitted, than in the evolution of equity’s ability to prevent the unconscionable exercise of a landlord’s right to forfeit a lease. 64 see, for example, barrow v isaacs [1891] 1 qb 417. 65 see, shiloh spinners ltd v harding [1973] ac 691, (where the relationship of landlord and tenant did not exist); ladup ltd v williams & glyn’s bank plc [1985] 1 wlr 851, (where relief was granted to an equitable chargee) and abbey national building society v maybeech [1985] 1 ch 190, (where relief was afforded to a mortgagee). 169 equity’s jurisdiction to relieve against forfeiture of leases – an historical perspective absract 1. introduction 2. relief upon making measurable compensation 3. no relief for wilful breaches 4. suspension of rights 5. fraud, accident, surprise and mistake 6. a discretionary approach to relief 7. current scope of equity’s jurisdiction 8. conclusion for the purposes of right to self-determination, how does one define people in context of kashmir 89 the denning law journal 2013 vol 25 pp 89 103 recent human rights developments in extradition law & related immigration law1 edward fitzgerald this article provides a critical overview of some key human rights developments since january 2012 in the field of extradition and deportation law. it is arranged by reference to the key articles of the european convention on human rights likely to be engaged, namely, articles 3, 8 and 6. 1. article 3 assurances and the abu qatada case the case of othman (abu qatada) v uk 2 represents something of a setback in the european court of human rights for the cause of article 3 protection. here the court accepted the assurance of the jordanian regime that abu qatada would not be tortured or ill-treated on his return despite acknowledging of the systemic practice of torture in jordan. the court refused to accept or adopt any general principle that assurances could not reduce the risk to an acceptable level even in a country which routinely practises torture. 3 instead, it laid down a list of relevant factors for the courts to apply when deciding on the reliability of „non-torture‟ assurances from the requesting or receiving state: “more usually, the court will assess first, the quality of assurances given and, second, whether, in light of the receiving state‟s practices they can be relied upon. in doing so, the court will have regard, inter alia, to the following factors: edward fitzgerald qc, cbe, ba mphil doughty street chambers, 54 doughty street, london wc1n 2ls. 1 this article is based on the keynote speech by edward fitzgerald qc at the justice international crime conference, tuesday 19 march 2013. originally entitled „evolving human rights standards in cross-border criminal cases.‟ 2 [2013] 55 ehrr 1. 3 at paras 193-6. recent human rights developments in extradition law & related immigration law 90 (i) whether the terms of the assurances have been disclosed to the court; (ii) whether the assurances are specific or are general and vague; (iii) who has given the assurances and whether that person can bind the receiving state; (iv) if the assurances have been issued by the central government of the receiving state, whether local authorities can be expected to abide by them; (v) whether the assurances concerns treatment which is legal or illegal in the receiving state; (vi) whether they have been given by a contracting state; (vii) the length and strength of bilateral relations between the sending and receiving states, including the receiving state‟s record in abiding by similar assurances; (viii) whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant‟s lawyers; (ix) whether there is an effective system of protection against torture in the receiving state, including whether it is willing to co-operate with international monitoring mechanisms (including international humanrights ngos), and whether it is willing to investigate allegations of torture and to punish those responsible; (x) whether the applicant has previously been ill-treated in the receiving state; and (xi) whether the reliability of the assurances has been examined by the domestic courts of the sending/contracting state.” 4 applying these guidelines in the othman case, the court relied on the strong bilateral relationship between the uk and jordan, the specificity and detail of the memorandum of understanding between the two states, and the high profile of mr othman as removing any „real risk‟ of torture despite the evidence of systemic torture there. it confirmed that the efficacy of assurances to reduce article 3 risks to an acceptable level (i.e. to remove the „real risk‟ of ill-treatment or torture) must be judged on a case by case basis. this put an end to an emerging jurisprudence, exemplified in ismoilov 5 that non-torture assurances would simply not be accepted from states where torture is systemic or endemic. 4 at para 189. cases referred to by the european court have been omitted. 5 (2009) 49 ehrr 42 [127]. the denning law journal 91 the test in extradition cases harkins & edwards v uk 6 is important for clarifying that the article 3 test is the same for both extradition and deportation cases, namely the existence of substantial grounds for believing that there is a real risk of torture or ill-treatment: “the court therefore concludes that the chahal 7 ruling (as reaffirmed in saadi 8 ) should be regarded as applying equally to extradition and other types of removal from the territory of a contracting state and should apply without distinction between the various forms of illtreatment which are prevented by article 3.” 9 this was a significant rejection of the „relativist‟ approach to article 3 protection advocated for extradition cases by lord hoffman in wellington. 10 here, lord hoffman had reasoned that protection from ill-treatment was a relative concept and that the public interest in upholding extradition arrangements and avoiding impunity somehow justified a „higher threshold‟ in order to find a violation of article 3 in extradition cases. the european court rejected this and reaffirmed the principle that the protection from illtreatment under article 3 was „absolute‟. 11 however the european court did recognise that because „the convention does not purport to be a means of requiring the convention states to impose convention standards on other states...treatment which might violate article 3 because of an act or omission of a contracting state might not attain the minimum level of severity which is required for there to be a violation of article 3 in an expulsion or extradition‟. 12 mandatory life sentences without parole the harkins case itself involved the applicant‟s exposure in the state of florida to a mandatory sentence of life without parole on conviction for murder on the basis of the outdated „felony murder‟ rule. the court distinguished between the two types of sentence of life imprisonment without parole: 6 (2012) 55 ehrr 19. . 7 (1997) 23 ehrr 413. 8 (2009) 49 ehrr 30. 9 at para 128. 10 [2009] 1 ac 335. 11 at paras 124-5. 12 at para 129. recent human rights developments in extradition law & related immigration law 92 i) a discretionary sentence of life imprisonment without the possibility of parole; ii) a mandatory sentence of life imprisonment without the possibility of parole. 13 the court held that the article 3 issues did not arise at the time the sentence was imposed but only at the point – many years down the line – when „continued incarceration no longer serves any legitimate penological purpose.‟ it continued that no article 3 issue arose unless the life sentence was „irreducible de facto and de iure‟. 14 the court reasoned that, in mr harkins‟ case, the time at which his incarceration no longer served any legitimate penological purpose might not ever arise, because his crime certainly deserved lengthy detention. and if that point was ever reached, there was still the power of executive clemency vested in the governor of florida. 15 the net effect is that extradition will be refused on article 3 grounds only when the mandatory life sentence, that will foreseeably be imposed in the requesting state, will be grossly disproportionate on the facts at the time when it is imposed. the court rejected any argument based on such gross disproportionality in mr harkins‟ case – though he was only twenty at the time and would be sentenced to life without parole on the basis of the discredited felony-murder rule. 16 this is a disappointing result. it shows just how difficult it will be to rely on disproportionality of sentence as a ground for refusing extradition. but, the european court has at least now clearly accepted that, in principle, extradition can be refused when the foreseeable sentence in the receiving state will be grossly disproportionate to the facts of the case. prison conditions in ‘supermax’ in ahmad & others 17 the european court rejected the article 3 challenge to extradition on grounds of prison conditions in supermax prisons in the united states and, in particular, the adx florence prison in colorado. the court did not distinguish between the applicable test for the inhumanity of „solitary‟ conferred in a domestic european case and in a „foreign‟ extradition 13 ibid n 6 para 134. 14 ibid n 6 para137. 15 at ibid n 6 para 140. the later decision in ahmad & others v uk (2013) 56 ehrr 1 [176] was to like effect. 16 ibid n 6 para 139. 17 (2013) 56 ehrr 1. the denning law journal 93 case. 18 it held that indefinite detention in solitary confinement might well „reach the minimum level of severity required for a violation of article 3‟: “if an applicant were at real risk of being detained indefinitely at adx, then it would be possible for conditions to reach the minimum level of severity required for a violation of article 3.” 19 however, the european court accepted (highly contentious) evidence of a real possibility of progress out of the isolation regime and, on that basis, held that extradition to face detention in adx colorado would not violate article 3 (para 223). there was a further unsuccessful attempt by the applicants to stop extradition by the home secretary on the basis that the european court had misunderstood the evidence, and there clearly was a risk of indefinite, longterm detention in solitary. 20 overall, the future prospects of ever stopping extradition to the united states on grounds of prison conditions do not appear good. prison conditions in other extradition contexts even so, there have been article 3 rulings in the english courts blocking extradition to other jurisdictions on grounds of prison conditions and these have clearly been influenced by the recent development in case law. in lutsyuk v government of ukraine 21 the divisional court took as its starting point on prison conditions the decision of the asylum and immigration tribunal in the case of ps (prison conditions, military service) ukraine v secretary of state for the home department cg: 22 “imprisonment in the ukraine is likely to expose the detainee to the real risk of inhuman or degrading ill-treatment that would cross the article 3 threshold.” this finding of a specialist tribunal on the very issue before the court was stated to be „an authoritative starting point‟ 23 and of a kind that should „usually be determinative of the specific issue it addresses‟, 24 where the same 18 at paras 205ff. 19 at para 223. 20 see r v secretary of state ex parte ahmad & others [2007] ewhc 3217 (admin). 21 lutsyuk v government of ukraine, court of appeal administrative court, january 18, 2013, [2013] ewhc 189 (admin) co/889/2012 22 [2006] ukait 00016 [100]. 23 para 15 of laws lj‟s judgment. 24 per higginbottom j at para 24. recent human rights developments in extradition law & related immigration law 94 issue arises in the extradition context. the requested person did not have to prove which particular prison he would be sent to, merely that there was a „real risk‟ that he would be detained in a jail where he would be subjected to ill-treatment. 25 this is an important judgment for which the finding in harkins as to the equivalence of the test on immigration and extradition clearly paved the way – though the court held there was no real inconsistency between lord hoffman‟s approach in wellington and that of the european court in harkins. in russian federation v trefilov 26 district judge evans held the prison conditions in russia were such that extradition would be inconsistent with the „absolute‟ prohibition on extradition to face article 3 treatment in a requesting state (whether in the form of „inhuman or degrading treatment or torture.‟ 27 ) he adopted the submissions of counsel which in turn relied heavily on the judgment of the european court in ananyev v russia. 28 that pilot judgment of the european court held that „there had been a repeated and ongoing failure by the russian federation to address the concerns underpinning a series of judgments ... in which violations of article 3 had been found‟. the consistent pattern of inhuman conditions due to overcrowding in pre-trial detention meant that there was a systematic violation of article 3. trefilov marks a new departure in russian extradition cases. effectively it means that, unless some new development ensues or some new form of assurance is given, any extradition to russia will be barred when there is a real risk of pre-trial detention on the basis that this exposes the individual to a real risk of inhuman conditions contrary to article 3. in the case of lithuania v liam campbell, 29 the northern ireland court of appeal rejected the lithuanian government‟s appeal against the recorder of belfast‟s decision to refuse extradition on article 3 grounds – because of the prison conditions on remand in lithuania. key aspects of the court‟s reasoning can be summarised as follows: i) it relied on the evidence of professor rod morgan of the committee for the prevention of torture on the deplorable state of lithuanian prisons, the overcrowding and the consequent violence – both inter-prisoner and by prison guards. ii) the court relied on the absolute nature of the prohibition on extradition to face inhuman conditions established by the european court in harkins (see para 21). 25 per laws lj at para 22. 26 unreported, 16th november 2012. 27 ibid para 51(a). 28 (2012) 55 ehrr 18. 29 [2013] niqb 19. the denning law journal 95 iii) it declined (at para 32) to follow a line of english decisions that had previously held that extradition to lithuania did not involve a violation of article 3 on grounds of prison conditions there, the most recent of which being janovic v prosecutor general’s office lithuania. 30 iv) it rejected the argument that there was an irrebuttable presumption that european convention countries would comply with article 3 (a fallacy first promulgated by mitting j in rot, 31 involving poland, but subsequently rejected by the english divisional court in agius v court of magistrates malta. 32 this is a significant judgment, and again owes something both in its spirit and its ratio to the clarification in harkins of the absolute nature of the article 3 protection in extradition cases. conclusion on article 3 developments regarding assurances and prison conditions it does appear that the clarification in harkins & edwards that the article 3 test in extradition cases is an absolute one has had some real impact on the courts‟ readiness to refuse extradition on article 3 grounds – particularly in cases involving prison conditions. but the evidence as to the inhumanity of prison conditions still has to be recent, specific, and founded on expert evidence or judicial findings of article 3 violations. on a practical level, evidence of systemic brutality or ill-treatment by prison officers or fellow prisoners may be more compelling than general evidence of poor conditions and overcrowding. but both are significant. despite the european court‟s acceptance of the very specific and detailed assurances in othman – together with the „tailor-made‟ monitoring mechanism, assurances will not always work. in particular, this will be unlikely to thwart an article 3 argument in the following situations: i) where the assurances are vague or generalised rather than specific and effective; ii) where there is doubt as to the requesting state‟s power to enforce them (as in zakaev v russia 33 (and chahal 34 ), or to monitor compliance; iii) where torture is systemic and impunity for its practice is general in the requesting state (ismailov 35 ); 30 [2011] ewhc 710 (admin). 31 [2010] ewhc 1829 (admin). 32 [2011] ewhc 759 [32] [33]. 33 13 th november 2003. 34 ibid n 7. recent human rights developments in extradition law & related immigration law 96 iv) where there is no sound diplomatic basis for reliance on the requesting state‟s promises or doubts as to its consistency (as in the case of as and dd v libya, 36 where the assurances came from colonel gaddafi, and the special immigration appeals commission (siac) found he was too unpredictable and quixotic to be relied on despite the glowing write-up of gaddafi as a „man of honour‟ provided by the foreign office! 2. the suicide cases the 2013 decision of the secretary of state to refuse the extradition of garry mckinnon on article 3 grounds has focused attention once more on suicide risk as a reason to refuse extradition. it was on grounds of the high risk of suicide that the secretary of state based her decision. the most helpful and simple test in this area is that distilled by mr justice bean from earlier authorities in the case of marius wrobel v poland. 37 the earlier cases from which he derived the test were rot (below), prosser 38 and jansons v latvia. 39 the relevant test was whether there was „independent and convincing evidence‟ of a psychiatric nature of „a very high risk of suicide if the fugitive is returned‟. the test was developed in the section 25 context (which has to do with physical or mental health making it oppressive to extradite) but was held to be consistent with the correct approach in article 3 and article 8 cases. this was the test that the secretary of state was invited to apply in the mckinnon case and which she appears to have applied. it is obviously necessary that the suicide risk should arise from mental disorder, or be heavily influenced by it. hence the need for psychiatric evidence. a rational decision to commit suicide if extradited is not a good ground for refusal to refute extradition: see turner v government of usa. 40 otherwise defendants could blackmail the courts into refusing extradition. it is also necessary to consider what measures are in place in the requesting state (and in transit) to remove or reduce the risk of suicide to an acceptable level: see turner v government of usa (above). in the 2013 case of poland v wolkowicz 41 the president (lord justice thomas) approved the propositions laid down by aikens lj in turner v government of usa at paragraph 28. these were: 35 http://www.memo.ru/eng/news/2012/06/25/2506122.html last accessed on august 13th 2013. 36 [2008] ewca civ 289. 37 [2011] ewhc 374. 38 [2010] ewhc 84. 39 [2004] ewhc 1845. 40 [2012] ewhc 2426. 41 [2013] ewhc 102 (admin). the denning law journal 97 “(1) the court has to form an overall judgment on the facts of the particular case: united states v tollman [2008] 3 all er 150 per moses lj [50]. (2) a high threshold has to be reached in order to satisfy the court that a requested person‟s physical or mental condition is such that it would be unjust or oppressive to extradite him: howes v hm’s advocate [2009] scl 341 and the cases there cited by lord reed in a judgment of the inner house. (3) the court must assess the mental condition of the person threatened with extradition and determine if it is linked to a risk of a suicide attempt if the extradition order were to be made. there has to be a „substantial risk that [the appellant] will commit suicide‟. the question is whether, on the evidence the risk of the appellant succeeding in committing suicide, whatever steps are taken is sufficiently great to result in a finding of oppression: see jansons v latvia [2009] ewhc 1845 at [24] and [29]. (4) the mental condition of the person must be such that it removes his capacity to resist the impulse to commit suicide, otherwise it will not be his mental condition but his own voluntary act which puts him at risk of dying and if that is the case there is no oppression in ordering extradition: rot v district court of lubin, poland [2010] ewhc 1820 at [13] per mitting j. (5) on the evidence, is the risk that the person will succeed in committing suicide, whatever steps are taken, sufficiently great to result in a finding of oppression: ibid. (6) are there appropriate arrangements in place in the prison system of the country to which extradition is sought so that those authorities can cope properly with the person‟s mental condition and the risk of suicide: ibid at [26]. (7) there is a public interest in giving effect to treaty obligations and this is an important factor to have in mind: norris v government of the usa (no 2) [2010] 2 ac 487.” the fourth proposition in turner suggests that „the mental condition of the person must be such that it removes the capacity to remove the impulse to commit suicide‟. this is a psychologically crude and legally questionable test. the psychiatric condition must be a cause, or possibly the main reason, for the suicidal intention. but to talk of irresistible impulse is not really appropriate. for instance, a person suffering from severe depression sees the world differently and may therefore form a suicidal intention because of their depressive world view and then find it difficult to restrain themselves. that is not to say that they surrender to an irresistible impulse if they take their life. and, for the purposes of article 3, the existence of an irresistible impulse should not be necessary, provided a diagnosed mental disorder causes or influences the high risk of suicide. in wolkowicz (above), sir john thomas suggested that where extradition is to a council of europe jurisdiction, there should be a presumption that recent human rights developments in extradition law & related immigration law 98 effective preventative measures will be in place. but it is important that any such presumption must be rebuttable in the light of specific evidence either that preventative measures will not prove effective or that they are not actually available in the requesting state. alternatives to article 3 article 3 has the advantage of providing an absolute prohibition on extradition when its high threshold is met in suicide cases. but it is a high threshold. by contrast, article 8 involves an overall balancing of the harm to private life (which includes the effect of a person‟s extradition on their susceptibility to suicide) against the public interest in upholding extradition arrangements. it may be easier to rely on article 8 when the crime is of no great gravity – as in jansons v latvia (above) and the successful „children‟ case of f-k. 42 in such cases, the argument would be the fact that the crime is of no great gravity means that the public interest in extradition is not so great as to outweigh the very high risk of suicide if the requested person is extradited. as to section 25, it would appear that the section 25 test has been broadly assimilated to the test under article 3 and article 8 (see wrobel above). but reliance on it does serve to emphasise that the basis of the objection to extradition is the mental health of the requested person. 3. article 8: the right to family life and the best interests of children the central issue in the supreme court judgment in hh, ph & f-k (above) was whether the rights of young children who were dependent on a requested person could outweigh the public interest in extradition and justify the refusal of extradition on article 8 grounds. in the case of f-k, the supreme court held that it would be a violation of article 8 to extradite to poland a mother of five with two very young children charged with offences of fraud of „no great gravity‟ dating back some sixteen years. the court held that the public interest in honouring extradition arrangements was outweighed by the „inevitable severe harm to the interest of the two youngest children in doing so‟ (per baroness hale at para 48; lord hope at para 91; lord brown at para 96; lord manse at para 102; lord judge at para 133; and lord kerr at para 147). by contrast in the case of hh, which involved the extradition of two parents to italy for very serious crimes of drugs importation, the court held that the public interest in extradition outweighed the best interests of the children even though extradition would lead to the separation of the children 42 [2012] 3 wlr 90: see the discussion below. the denning law journal 99 from the primary care-giver and the likelihood of the children being separated and taken into care. the most significant aspect of the case was the recognition that article 3.1 of the united nations convention on the rights of the child applied to extradition hearings involving the parents of a child. it required the court to treat the „best interests of the child‟ as a „primary consideration‟ (per baroness hale at paras 10-11 and 33-34). this did not mean that the best interests of dependent children would generally or normally prevail over the public interest in extradition. their best interests were a primary consideration, not the primary consideration and could be outweighed by the public interest in extradition. indeed, generally this would be the case. but in every case the two interests had to be balanced against each other in order to determine whether extradition was compatible with article 8. thus as the case of f-k showed, in an especially compelling case the best interests of the child could prevail over the public interest in extradition: here the factor of delay and the relative lack of gravity of the offences told in favour of extradition being disproportionate. the supreme court recognised that the criminal justice context meant that the public interest factor was greater in extradition cases than in deportation cases. but a balancing exercise was nonetheless required in every case. lord judge suggested that one relevant factor was as follows: “when resistance to extradition is advanced, as in effect it is in each of these appeals, on the basis of the article 8 entitlements of dependent children and the interests of society in their welfare, it should only be in very rare cases that extradition may properly be avoided if, given the same broadly similar facts, and after making proportionate allowance as we do for the interests of dependent children, the sentencing courts here would nevertheless be likely to impose an immediate custodial sentence: any other approach would be inconsistent with the principles of international comity.” 43 the ruling in f-k was a breakthrough in the sense that it was the first time that the courts had refused extradition in the interests of an innocent juvenile and their dependence on the requested person. subsequently the courts have not always been true to the spirit of the decision and the importance it attached to the best interests of the child. thus in czech republic v jp 44 the extradition of a mother was upheld by the divisional court as proportionate and consistent with article 8 – even though her crimes were of even lesser gravity than those of f-k, and she had three young children dependent on her 43 at para 132. 44 [2013] ewhc 2603 (admin). recent human rights developments in extradition law & related immigration law 100 as their primary carer. the court declined to grant a certificate to resolve the glaring inconsistency between its decision and that of the supreme court in fk. however in ms, the divisional court did adopt a broadly similar approach to that in f-k and refused extradition on article 8 grounds where the crimes were of no great gravity and there was a risk to her two very young children and also to the mental health of her vulnerable fourteen year old daughter, if she was extradited. 4. article 6 cases a mention of article 6 as a ground for refusing extradition is also necessary. this is because of the great controversy created by the european court‟s decision that the extradition of abu qatada 45 would involve a violation of the article as it would expose him to the „real risk‟ of a „flagrant denial of justice‟. this was on the basis that on his return there was a real risk that the main evidence against him at his retrial would consist of confession evidence obtained from two alleged co-conspirators who had been tortured (or may well have been tortured) into making their confessions (which incriminated both themselves and him). firstly, the court emphasised that for a country to be found in breach of article 6 by reason of extradition or expulsion to another state where there was a risk of an unfair trial, the test was a high and exacting one. the prospective trial in a foreign state would have to constitute a „flagrant denial of justice‟ – which meant more than an unfair trial for the purpose of article 6 when dealing with a trial taking place in the european convention state itself. 46 the court had previously given some examples in cases such as einhorn, 47 bader 48 and al-moayad 49 but it had never before „found that an expulsion would be in violation of article 6‟ in any case since the test was formulated in soering. 50 it emphasised that: “what is required is a breach of the principles of a fair trial guaranteed by article 6 which is so fundamental as to amount to a nullification, or 45 ibid n 2 othman (abu qatada) v the united kingdom 8139/09 judgment 17.1.2012 [section iv]. 46 at paras 258-62. 47 einhorn v france (application no 71555/01, 16 october 2001. 48 bader and kanbor v sweden(application no. 13284/04) 8 november 2005. 49 al-moayad v germany (application no 35865/03) european court of human rights 20 february. 50 soering v united kingdom 161 eur ct hr (ser. a) (1989). the denning law journal 101 destruction of the very essence, of the right guaranteed by that article.” 51 it is significant that the english courts have recognised the trial in a military court at guantanamo would satisfy the test of a flagrant denial of justice (ahmed), and that trial by a court that was not independent and impartial would also do so: see rwanda v brown. 52 essentially the court‟s reasoning was that trial on the basis of torture evidence would constitute a flagrant denial of justice because the prohibition of the use of torture evidence is a universal norm: “more fundamentally, no legal system based upon the rule of law can countenance the admission of evidence – however reliable – which has been obtained by such a barbaric practice as torture. the trial process is a cornerstone of the rule of law. torture evidence damages irreparably that process. it substitutes force for the rule of law and taints the reputation of any court that admits it. torture evidence is excluded to protect integrity of the trial process and, ultimately, the rule of law itself.” 53 the court further found that all that could be expected of the applicant was that he showed that there was a real risk of the admission of evidence obtained by torture at his forthcoming „retrial‟ on return to jordan. (he had also been convicted in absentia on the basis of his co-accused‟s confession but was entitled to a retrial on return.) the court‟s reasoning appears to justify a twofold test: the first test is whether there is a real risk that the confession evidence of his co-accused was obtained by torture. “the court has found that a flagrant denial of justice will arise where evidence obtained by torture is admitted in criminal proceedings. the applicant has demonstrated that there is a real risk that abu hawsher and al hamasher were tortured into providing evidence against him and the court has found that no higher burden of proof can be imposed upon him. having regard to this conclusion, the court, in keeping with the court of appeal, found that there is a real risk that the applicant‟s retrial would amount to a flagrant denial of justice.” 54 51 ibid n 2 at para 260. 52 [2009] ewhc 770 (admin). 53 ibid n 2 para 264. 54 ibid n 2 para 282. recent human rights developments in extradition law & related immigration law 102 the court also found that there was concrete and compelling evidence that abu hawsher and al hamasher had been tortured into confessing (para 285). the second test is whether there was a real risk that such evidence would be admitted at the trial. here the court relied on the finding of siac in england that there was a high probability that the state security court would admit the confession evidence. it further referred to the questionable reputation of the state security court in investigating allegations of torture. the secretary of state did not appeal from the european court‟s decisions to the grand chamber. instead she negotiated further assurances from jordan, and obtained further information as to the likely course of the trial. the principal assurance obtained was that mr othman would be tried by a state security court panel composed of three civilians rather than a panel consisting of two military and one civilian members. reliance was also placed on the amendment of the constitution to prohibit the admission of evidence obtained by torture and the (disputed) evidence of an expert that the confession evidence would not be admissible at mr othman‟s retrial. siac‟s finding was that neither the change in the composition of the court, nor the amendment to the constitution could remove the „real risk‟ that the confession evidence would be admitted at trial. siac further indicated that it did not propose to go behind the european court‟s finding that the confession evidence may well have been obtained by torture and that there was „concrete and compelling‟ evidence to support this fact. some final thoughts on article 6 the principal controversy throughout was whether the „real risk‟ test was sufficiently exacting, and whether, providing there was a hearing at which the torture issues were considered by an „independent‟ court, it was still possible to claim that the prospective trial would constitute a „flagrant denial of justice‟. this is the issue now to be determined by the court of appeal. in fact, the „flagrant denial‟ finding is far more common than is generally realised. it is certainly true that the european court itself has only found the real risk of a flagrant denial of justice in one case – that of abu qatada. but the english courts have recognised that the trial process in a foreign country would fail the „flagrant denial‟ test in a number of other cases. for example, where the „flagrant denial of justice‟ would be involved in trial by a military court in guantanamo (in the case of ahmad); by trials in russia for opponents of putin or alleged chechen „terrorists‟ such as akmed zakaev; and the trial in rwanda of alleged hutu mass murderers. all these prospective trials have been held to involve a real risk of a flagrant denial of justice. so the concept the denning law journal 103 has continuing vigour and application and is an important safeguard in the field of both deportation and extradition. unincorporated associations: property holding, charitable purposes and dissolution denning law journal 2014 vol 26 pp 214-233 case commentary is it time to kill off hampshire land? a review of the cases on the adverse interest principle alistair alcock∗ rules of attribution in the early development of english company law it was doubted whether a company could be deemed to have the necessary “malice or motive” for most criminal and many tortious liabilities.1 this view was rejected by the privy council in citizens’ life assurance co ltd v brown,2 which led to the concept of a company having attributed to it personally (as against vicariously) the thoughts and actions of its “directing mind and will”. this was famously explained in a further house of lords decision, lennard’s carrying co ltd v asiatic petroleum co ltd.3 in the cases that followed, it became very unclear exactly who might be held to be the “directing mind and will” of a company, beyond any controlling directors. in tesco supermarkets ltd v nattrass, lord reid said: “normally the board of directors, the managing director and perhaps other superior officers of a company carry out the functions of management and speak and act as the company. their subordinates do not. they carry out orders from above and it can make no difference that they are given some measure of discretion. but the board of directors may delegate some part of their functions of management giving to their delegate full discretion to act independently of instructions from them. i see no difficulty in holding that they have thereby put such a delegate in their place, so that within the scope of the delegation he can act as the company.” 4 ∗ ma (cantab), fcsi, barrister of middle temple, currently acting vice-chancellor, university of buckingham. 1 abrath v north eastern ply co (1886) app cas 247 (hl) 271 (lord bramwell). 2 [1904] ac 423 (pc). 3 [1915] ac 705 (hl) 713 (viscount haldane). 4 [1972] ac 154 (hl) 171. 214 the denning law journal on the facts of the case, however, the actions of the store manager were held not to be those of the company and so tesco was able to claim the benefit of a statutory defence that the local mispricing of goods was the act of another under section 24(1) of the trade descriptions act 1968. in the privy council decision in meridian global funds management asia ltd v securities commission,5 lord hoffmann reviewed the existing cases again. he felt that the terminology of the “directing mind and will” could be misleading and the explanation as to which individual’s thoughts and actions were or were not to be attributed to the company lay more with interpreting the purpose of the law being applied: “the company’s primary rules of attribution together with the general principles of agency, vicarious liability and so forth are usually sufficient to enable one to determine its rights and obligations. in exceptional cases, however, they will not provide an answer. this will be the case when a rule of law, either expressly or by implication, excludes attribution on the basis of the general principles of agency or vicarious liability… this is generally true of rules of the criminal law, which ordinarily impose liability only for the actus reus and mens rea of the defendant himself. how is such a rule to be applied to a company? one possibility is that the court may come to the conclusion that the rule was not intended to apply to companies at all; for example, a law which created an offence for which the only penalty was community service. another possibility is that the court might interpret the law as meaning that it could apply to a company only on the basis of its primary rules of attribution, ie if the act giving rise to liability was specifically authorised by a resolution of the board or an unanimous agreement of the shareholders. but there will be many cases in which neither of these solutions is satisfactory; in which the court considers that the law was intended to apply to companies and that, although it excludes ordinary vicarious liability, insistence on the primary rules of attribution would in practice defeat that intention. in such a case, the court must fashion a special rule of attribution for the particular substantive rule. this is always a matter of interpretation: given that it was intended to apply to a company, how was it intended to apply? whose act (or knowledge, or state of mind) was for this purpose intended to count as the act etc of the company? one finds the answer to this question by applying the usual canons of interpretation, taking 5 [1995] 2 ac 500 (pc). 215 case commentary into account the language of the rule (if it is a statute) and its content and policy.”6 applying this approach, the lord hoffmann held that the failure of the investment manager of the company was to be attributed to the company as its failure to declare a shareholding as required by section 20 of the new zealand securities amendment act 1988. whatever the exact basis for these “special rules of attribution”, the personal as against vicarious nature of the company’s liability does mean that the company can in effect be deemed to be a co-conspirator with a director or other individual whose improper thoughts and/or actions have been attributed to it. this raises a difficult issue with which the courts have struggled for more than a century. it is clear that a company, and behind it, its shareholders and creditors, can be as much a victim as a perpetrator of a fraud or other wrong committed by its directors and/or other “directing mind and will”. so, in what circumstances should the courts recognise this and not attribute the fraud or other wrong to the company? hampshire land the complex history of cases dealing with this issue starts with two cases which were not stated to be based on the attribution or non-attribution of the thoughts and actions of a “directing mind and will” at all. in re hampshire land co7 the articles of hampshire land (the company) restricted the ability of the company to borrow unless authorised by its shareholders in general meeting. at a shareholders’ meeting for which insufficient notice (both as to time and content) had been given, the shareholders purported to authorise the company to borrow £30,000 from the portsea island building society (the society). mr wills was the company secretary of both the company and the society and knew that the notice for the shareholders’ meeting of the company was not valid. at that time, third parties (like the society) dealing with a company were deemed to have constructive knowledge of any restrictions in the company’s articles filed at companies house; but if there were procedures to overcome such restrictions, the rule in royal british bank v turquand8 allowed the third party to presume that the procedures had been followed. the problem for the society was that if the knowledge of its company secretary was attributed to it, that would defeat the presumption 6 ibid 507. 7 [1896] 2 ch 743 (ch). 8 (1856) 6 el & bl 327 (exch). 216 the denning law journal and the society would be prevented from proving for its debt in the liquidation of the company. justice vaughan williams did not accept that knowledge of a common officer had to be attributed to both his principals9 and on the particular facts in hampshire land commented: “… if wills had been guilty of a fraud, the personal knowledge of wills of the fraud that had [been] committed upon the company would not have been knowledge of the society of the facts constituting that fraud; because common sense at once leads one to the conclusion that it would be impossible to infer that the duty, either of giving or receiving notice, will be fulfilled where the common agent is himself guilty of fraud. it seems to me that if you assume here that mr wills was guilty of irregularity – a breach of duty in respect of these transactions – the same inference is to be drawn as if he had been guilty of fraud.”10 the problem with this rationale is that it is potentially incredibly wide. virtually all improper thoughts and actions to be attributed to a company will have involved an agent in at least a breach of a duty of loyalty in not passing on his knowledge. of course, hampshire land was only a first instance judgment and pre-dated lennards, but vaughan william’s rationale was taken up by the house of lords in the later case of jc houghton & co v nothard, lowe & wills.11 there were two rival fruit trading companies, george wills & sons ltd (wills) and nothard & lowe fruit & preserving co (preserving). the companies agreed to combine their businesses under a new company, nothard, lowe & wills (new co). however, certain types of business continued to be reserved to preserving. maurice and george lowe were directors of preserving and new co and walker and brand were directors of wills and new co. the lowes negotiated a written brokerage agreement with the appellant, jc houghton & co (the broker), whereby in return for an exclusive agency, the broker advanced £20,000 to preserving. the broker was then entitled to retain and apply 70% of the net proceeds of sale of preserving’s goods to repay the £20,000. preserving, the lowes and another also undertook in the agreement, that the broker “shall be entitled to retain and apply in or towards repayment of the said advances, [70%] of the net proceeds of the sale of 9 citing re marseilles extension railway company, ex p credit foncier and mobilier of england (1871-72) lr 7 ch 161 (ca). 10 hampshire land (n 7) 749. 11 [1928] ac 1 (hl). 217 case commentary goods sold by [the broker] on behalf of or as agents for [new co].” new co was found not to be a party to this agreement. as directors of new co, walker and brand knew nothing of the advances which were applied solely to the benefit of preserving, nor of the apparent agreement that 70% of the net proceeds of the sale of new co’s goods were to be applied to repaying the advances. the broker’s claim was that the lowes’ knowledge of the agreement must be attributed to new co which would then be estopped by conduct amounting to acquiescence from denying the advances and retention arrangements. viscount dunedin, giving the leading judgment, said: “the knowledge of the company can only be the knowledge of persons who are entitled to represent the company. it may be assumed that the knowledge of directors is in ordinary circumstances the knowledge of the company. the knowledge of a mere official like the secretary would only be the knowledge of the company if the thing of which knowledge is predicated was a thing within the ordinary domain of the secretary’s duties. but what if the knowledge of the director is the knowledge of a director who is himself particeps criminis, that is, if the knowledge of an infringement of the right of the company is only brought home to the man who himself was the artificer of such infringement? common sense suggests the answer, but authority is not wanting.”12 viscount dunedin then cited as precedents hampshire land and an earlier case lacey v hill13 to hold that the lowes’ knowledge should not be attributed and so new co had not knowingly acquiesced to the advances and retention arrangements. what is the common but perhaps unusual factor in these two cases was that it only required the normal attribution of an agent’s knowledge to his principal14 to have led to the company’s civil liability to a third party. mere knowledge would have defeated the protection of the rule in turquand in hampshire land and created an estoppel in jc houghton. limiting english law’s rather easy attribution of an agent’s knowledge to his principal in this way may seem acceptable. however, the refusal to attribute knowledge using the hampshire land rationale, has been applied in other circumstances. 12 ibid 14. 13 (1876) 4 ch d 537 (ca). 14 as against the personal attribution of dishonest, intentional or reckless thoughts and actions. 218 the denning law journal towards the primary victim principle in belmont finance corp ltd v williams furniture ltd15 the company sued two of its directors because they had caused the company inter alia to acquire shares in another company at a grossly inflated price. at first instance, the company lost on the argument that the wrongs of the two directors were attributed to the company since the transactions had been approved at a full board meeting. however, that was overturned on appeal. as lord justice buckley said: “… [the plaintiff] was a victim of the conspiracy. i think it would be irrational to treat the directors, who were allegedly parties to the conspiracy, notionally as having transmitted this knowledge to the [plaintiff]; and indeed it is a well-recognised exception from the general rule that a principal is affected by notice received by his agent that, if the agent is acting in fraud of his principal and the matter of which he has notice is relevant to the fraud, that knowledge is not to be imputed to the principal.”16 although not cited in belmont, this view is clearly based on hampshire land. this victim concept was taken up and extended in attorney-general’s reference (no 2 of 1982).17 controlling director-shareholders of the company were charged with stealing from the company. it was argued that as the knowledge and dishonest intent of such controllers had to have been attributed to the company, the company must logically have consented to the appropriations. this was rejected by the court of appeal. lord justice kerr cited the passage from belmont above and said: “so far as the authorities in the realm of the civil law are concerned, this decision directly contradicts the basis of the defendants' argument in the present case. there can be no reason, in our view, why the position in the criminal law should be any different.”18 a further extension of the victim concept was attempted in first mcnicholas construction co ltd v customs and excise commissioners19 and 15 [1979] ch 250 (ca). 16 ibid 261. 17 [1984] qb 624 (ca). 18 ibid 641. 19 [2000] stc 553 (qb). 219 case commentary then morris v bank of india.20 in mcnicholas site managers of the company created paperwork indicating payments to bogus sub-contractors in order to recover vat that had never been paid. this apparently made the company liable to pay compensation to the vat man and the company argued that the fraudulent behaviour of its site managers should not be attributed to the company as, although the fraud was primarily aimed at the vat man, this risk to the company made it a secondary victim. as justice dyson said: “the hampshire land principle or exception is founded in common sense and justice. it is obvious good sense and justice that the act of an employee should not be attributed to the employer company if, in truth, the act is directed at, and harmful to, the interests of the company. in the present case, the fraud was not aimed at [the company]. it was not intended by the participants in the fraud that the interests of [the company] should be harmed by their conduct. in judging whether the fraud was in fact harmful to the interests of [the company], one should not be too ready to find such harm.”21 the same argument was adopted by the court of appeal in morris v bank of india. the london manager of the bank of india, mr samant, had involved the bank in a scheme that had as its aim fraudulently to deprive the creditors of another bank, bank of credit and commerce international (bcci), of their rights. this involvement in the scheme exposed the bank of india to claims from bcci of fraudulent trading under section 213 of the insolvency act 1986. in rejecting the application of the re hampshire land principle, lord justice mummery said: “clearly there are some circumstances in which an individual’s knowledge of fraud cannot and should not be attributed to a company. the classic case is where the company is itself the target of an agent’s or employee’s dishonesty. in general, it would not be sensible or realistic to attribute knowledge to the company concerned, if the attribution had the effect of defeating the right of the company to recover from [the] dishonest agent or employee or from a third party. [counsel] argued that there should be no attribution of knowledge as this was a case in which [the bank of india] was the ‘secondary victim’ of mr samant. his actions were harmful to the interests of [the bank of india], as he had exposed it to the risk of potential liability for fraudulent trading. we have no hesitation in rejecting [this] 20 aka re bank of credit and commercial international sa (no 15) [2005] ewca civ 693; [2005] 2 bclc 328. 21 mcnicholas (n 19) [55], [56]. 220 the denning law journal submission. if it were correct, it would never be possible to attribute the knowledge of the individual to a company under section 213.”22 this last point highlighted the dangerously wide potential of the hampshire land rational and the development of the primary victim principle was clearly an attempt to restrict its application. of course, it is hard to classify the society in hampshire land as a primary victim, but the nonattribution of knowledge of a company’s constitution to a bona fide third parties is now dealt with by section 40 of the companies act 2006.23 the society would almost certainly be treated as bona fide now because section 40(2)(b) specifically says: “a person dealing with a company... (iii) is not to be regarded as acting in bad faith by reason only of his knowing that an act is beyond the powers of the directors under the company’s constitution.” as for jc houghton, although not characterised in this way by the house of lords, the lowe brothers’ attempts to divert new co’s resources to pay preserving’s debts did make new co look like a primary victim. so, to this point, the case history suggested that, at least in cases requiring more than the attribution of knowledge under general agency principles, the courts would only attribute dishonesty, intent etc where special rules of attribution applied (usually involving a “directing mind and will”). however, such attribution would not be made where the company was the “primary victim”. this whole area has now been reconsidered by the court of appeal in bilta (uk) ltd v nazir.24 rejecting hampshire land in bilta, mr nazir and mr chopra were the company’s only directors and mr chopra the sole shareholder. the company bought and sold european emissions trading scheme allowances (euas) which at the time were vatable. however, the two directors arranged transactions with other corporate defendants apparently to ensure that the company never had sufficient funds to pay the vat as it became due (known as a carousel fraud). 22 morris (n 20) [114]. 23 section 40 has been held to cover procedural matters formerly subject to the rule in turquand (n 8), see smith v henniker-major and co [2002] ewca civ 762; [2003] ch 182. 24 [2013] ewca civ 968; [2014] ch 52. 221 case commentary so from the very start of trading, the company was insolvent and now its liquidator was seeking damages and equitable compensation from the directors and these other corporate defendants, allegedly all involved in this conspiracy. in this hearing in front of the court of appeal, the corporate defendants were seeking to strike out the action against them on the grounds that the only victim of the alleged conspiracy was the vat man and the company was a perpetrator of the fraud because the conduct of the directors and sole shareholder had to be attributed to it personally. this argument was rejected at 1st instance and by the court of appeal. in the leading appeal judgment, lord justice patten cast some doubts on both the hampshire land and primary victim rationales. he pointed out that: “[re hampshire land co] was concerned only with the imputation of knowledge which was relevant to portsea’s ability to enforce a contract that was unauthorised by hampshire land. the judge treated it as a question of whether the knowledge of an agent should be imputed to his principal and it was not therefore necessary for him to consider any wider issues of attribution relevant to unlawful conduct. in particular, the rationale based on the inherent unlikelihood of the director disclosing his own fraud to the object of his deceit might be thought to apply even where the intended victim was not the company, of which he was a director or officer but was a third party. yet this was not sufficient to prevent attribution in [el ajou’s case] and the other liability cases i mentioned earlier.”25 these “liability cases” were el ajou v dollar land holdings plc,26 royal brunei airlines sdn bhd v tan,27 mcnicholas construction co ltd v customs and excise comrs28 and morris v bank of india.29 as lord justice patten pointed out, in these cases: “… reliance on the consequences to the company of attributing to it the conduct of its managers or directors is not enough to prevent attribution because… it would prevent liability ever being imposed. as between the company and the defrauded third party, the former is not to be treated as a victim of the wrongdoing on which the third party sues but one of the perpetrators.”30 25 ibid [41]. 26 [1994] 2 all er 685 (ca). 27 [1995] 2 ac 378 (pc). 28 mcnicholas (n 19). 29 morris (n 20). 30 bilta (n 24) [34]. 222 the denning law journal on the other hand, he thought that non-attribution could arise in secondary damages cases. “but it does not follow… that secondary damage of the kind relied on unsuccessfully in the liability cases will not be sufficient to prevent attribution when it forms the subject matter of the action by the company against those whose breach of duty has caused it. in that context the damage is not secondary but primary and the company is the direct victim of the breach of duty relied on. it ought therefore not to matter whether the conspiracy alleged in these proceedings had as its object a vat fraud on hmrc or is limited to depriving bilta of the proceeds of sale from the euas.”31 so lord justice patten took the view that in civil cases, the wrongdoings of a company’s agents (at least those who could be viewed as the “directing mind and will”) should be attributed to the company where the issue was the company’s liability to third parties, but not where the issue was the breach of duty of the agent to the company. likewise presumably in criminal cases, attribution to the company would arise where it served the purpose of the statute in protecting third parties and the public,32 but not where it would prevent the purpose of protecting the company.33 to get to the position of rejecting both the hampshire land and primary victim rationales, lord justice patten was forced to re-write some the rationales given for previously decided cases. what, as he himself admitted, could still stand in the way of this approach was the 3-to-2 majority decision of the house of lords in stone & rolls ltd v moore stephens.34 stone & rolls as i have written elsewhere,35 this penultimate decision of the appellate committee of the house of lords36 was not perhaps its finest hour. in stone & rolls mr stojevic acquired the company to use as a vehicle for a ponzi scheme based on obtaining ever larger letters of credit from banks against 31 ibid [45]. 32 meridian (n 5). 33 attorney-general’s reference (n 17). 34 [2009] ukhl 39; [2009] 1 ac 1391. 35 alistair alcock, ‘auditors’ liability and stone & rolls ltd v moore stephens’ in gore-browne on companies special release (jordans 2011) 6. 36 in 2009, the judicial functions of the house of lords were transferred to a new supreme court. 223 case commentary bogus equipment purchases. when eventually the company defaulted, a czech bank found itself owed nearly $200 million. the moneys paid to the company and indeed to mr stojevic had disappeared. so the company’s liquidator proceeded to sue the auditors of the company, moore stephens, for failing to detect and thereby prevent the escalation of the fraud. in this hearing, the auditors had applied to strike out the action on the grounds that the company was barred from suing by the ex turpi causa principle. the auditors claimed that the company was itself a perpetrator of the fraud with mr stojevic since, as the “directing mind and will” of the company, indeed probably its only shareholder, his fraudulent intent and actions had to be attributed to the company. in bilta, lord justice patten’s analysis of the decision in stone & rolls was that two of the majority, lords walker and brown, held that hampshire land (referred in stone & rolls as the “adverse interest” principle or rule) would have applied had not ownership and control vested entirely with the fraudster, ie a “sole actor”.37 also, unfortunately for lord justice patten’s analysis of the old cases, lord walker (with whom lord brown basically concurred) went on to say of the adverse interest principle: “i can see no reason why the principle should be limited to claims. it is… a general principle of agency which can apply to any issue as to a company’s notice, knowledge or complicity, whether that issue arises as a matter of claim or defence.”38 lord justice patten dismissed this as “true but the contexts in which the point arises are very different.”39 on the sole actor exception to the adverse interest principle, lord walker looked to the us decision in mediators inc v manney, re the mediators inc.40 he explained this and the argument that the company was only a secondary victim and so not entitled to the adverse interest principle thus: “it is necessary to keep well in mind why the law makes an exception (the adverse interest rule) for a company which is a primary victim (like the belmont company, which was manipulated into buying maximum at a gross overvaluation). the company is not fixed with its directors’ fraudulent intentions because that would be unjust to its innocent participators (honest directors who were deceived, and 37 bilta (n 24). the ‘adverse interest’ and ‘sole actor’ terminology comes from us cases. 38 stone & rolls (n 34) [145]. 39 bilta (n 24) [59]. 40 (1997) 105 f 3d 822, 827. 224 the denning law journal shareholders who were cheated); the guilty are presumed not to pass on their guilty knowledge to the innocent. but if the company is itself primarily (or directly) liable because of the ‘sole actor’ rule, there is ex hypothesi no innocent participator, and no one who does not already share (or must by his reckless indifference be taken as sharing) the guilty knowledge.”41 however, lord justice patten took the view that the third member of the majority in stone & rolls, lord phillips, came to his conclusion by a very different route: “lord phillips of worth matravers considered that the answer to the question whether the ex turpi causa rule applied to the claim was not to be found in the application of the hampshire land principle but by looking behind the company at the persons whose interests the duty of the auditors was intended to protect. since this was owed to the shareholders of the company and not to its creditors, there was no justification for disapplying the ex turpi causa rule.”42 as lord phillips put it himself: “i have reached the conclusion that all whose interests formed the subject of any duty … owed by moore stephens to s&r, namely the company’s sole will and mind and beneficial owner mr stojevic, were party to the illegal conduct that forms the basis of the company’s claim. in these circumstances i join with lord walker and lord brown in concluding that ex turpi causa provides a defence.”43 since only two of the majority relied upon any argument involving hampshire land, lord justice patten also considered the two dissenting judgments. lord scott based his judgment primarily on there being no public policy purpose in applying the ex turpi causa rule at all.44 as for the sole actor exception: “it is noteworthy that there appears to be no case in which the ‘sole actor’ exception to the hampshire land … rule has been applied so as to bar an action brought by a company against an officer for breaches of duty that have caused, or contributed to, loss to the company as a 41 stone & rolls (n 34) [173]. 42 bilta (n 24) [54]. 43 stone & rolls (n 34) [86]. 44 ibid [120]. 225 case commentary result of the company engaging in illegal activities. i can easily accept that, for the purposes of an action against the company by an innocent third party, with no notice of any illegality or impropriety by the company in the conduct of its affairs, the state of mind of a ‘sole actor’ could and should be attributed to the company… but it does not follow that that attribution should take place where the action is being brought by the company against an officer or manager who has been in breach of duty to the company… mr stojevic could not, in my opinion, reduce his liability for breach of duty to s&r by attributing to s&r his own dishonesty, praying in aid the ‘sole actor’ exception and the application of the ex turpi causa rule.”45 lord mance attacked the argument that the company was a secondary victim and so could not claim the benefit of hampshire land, an argument that had persuaded the court of appeal to uphold the defence of ex turpi causa. “in distinguishing between the primary and secondary victims, the court of appeal in the present case was, however, influenced by reasoning in mcnicholas… and [morris v bank of india]… both those cases were… concerned with claims against the company by injured third parties, rather than claims by the company against others in breach of duty to it. so it is not clear why the hampshire land issue arose at all, and in my view the statements in them are of no assistance in resolving any issue of attribution in the present context.”46 he also disliked importing the “sole actor” rule from the us because there was a fundamental difference between us and uk law:47 “… an important element to understanding this rule is that in american law ‘where third parties aid and abet a fiduciary’s breach of duty to creditors… the creditors may bring an action in their own right against such parties.’”48 lord mance ultimately concluded that the “sole actor” rule was irrelevant because, in direct contradiction to lord phillips, he believed an auditor’s duty, 45 ibid [109], [110]. 46 ibid [234]. 47 ibid [239]. 48 re the mediators inc (1997) 105 f 3d 822, 825. 226 the denning law journal where a company was insolvent, was not just (if at all) to shareholders, but also (perhaps only) to creditors, like the duty of directors.49 clearly in bilta, lord justice patten preferred the arguments of the dissenting judges in stone & rolls, but could he avoid being bound by those of the majority? could stone & rolls be distinguished? unsurprisingly, the corporate defendants in bilta put the same two arguments as the auditors did in stone v rolls, namely: 1. the company was not the primary victim – that was the vat man – so non-attribution using the hampshire land/primary victim rationale(s) was not possible. the company’s inability to pay the vat was an integral part of the fraud, ie the company was a primarily a perpetrator. 2. the total control of mr nazir and mr chopra meant that the company was a one-man company and so attribution fell within the “sole actor” exception. there were no innocent participators in the company prejudiced by the company’s inability to obtain damages or compensation. in general, lord justice patten pointed out that these two arguments were only accepted by two out the five lords in stone & rolls, lords walker and brown. lords scott and mance firmly rejected them and the “swing vote” of lord phillips was based on his view that the duty of the auditors was limited, ie only owed to, here entirely fraudulent, shareholders and not to creditors. so lord justice patten concluded by asking: “but are we bound by [the] stone & rolls [case] to apply the sole actor exception in this case [bilta] case? i do not believe we are. the issue on that appeal concerned a claim by the company against its auditors who were not party to the fraud on the bank but were negligent in not alerting the company to its existence. both this court and the house of lords have decided that [re hampshire land co] did not prevent attribution in that case. there is, however, a significant difference between the liability of an auditor for failing to notify the company about what was taking place and a conspiracy against the company by its directors and others to deprive it of its assets. the claim against the auditors was a claim against a third party who owed 49 liquidator of west mercia safetywear ltd v dodd & another [1988] bclc 250 (ca). 227 case commentary no fiduciary duties as such to the company or its creditors based on what in the context of that claim was secondary damage caused to the company by a separate breach of duty on the part of the company’s own director. it is therefore readily distinguishable from what we have to consider. the decision in [the] stone & rolls [case] should be confined in my view to the claim and the facts in that case.” 50 again, the ever resourceful lord justice patten, here came up with a rationale that does not appear anywhere in stone & rolls itself. only one out of five law lords, lord phillips, suggested that the decision turned on the limited nature of the auditor’s duty, and then not the distinction drawn here. indeed, lord mance thought the scope of the auditor’s duty similar to that of a director and there is at least one court of appeal decision suggesting that the duty might include, where there is no innocent board member/shareholder to report to, reporting matters to the authorities.51 however, before coming to any conclusions about the current state of the law in this area, two further court of appeal decisions not cited in bilta but theoretically binding the court, should be considered. safeway stores in safeway stores ltd v twigger52 the claimant companies admitted to breaching section 2(1) of the competition act 1998 and because it was accepted that the infringement had been committed “negligently or intentionally by the undertaking” under section 36 of the same act, the claimant companies were subject to a penalty of between £10.5 and £16.5 million. now the companies were seeking an indemnity and damages from the directors and managers who had involved them in the breach. these directors and managers raised the defence of ex turpi causa, claiming that as their intention was attributed personally to the companies, they were in effect co-conspirators. at first instance, this argument was rejected by justice flaux because he believed that the companies’ liability was arguably only vicarious and arose from the general rules of agency, unless it could be shown at full trial that each of the defendants was a “directing mind and will” of the companies.53 this decision was overturned by the court of appeal. as lord justice longmore said: 50 bilta (n 24) [81]. 51 sasea finance ltd v kpmg [2000] 1 all er 676 (ca) 684. 52 [2010] ewca civ 1472; [2011] 2 all er 841 . 53 safeway stores ltd. v twigger [2010] ewhc 11 (comm); [2010] 3 all er 577 [68], [74], [75]. 228 the denning law journal “… the company’s liability is not vicarious for the simple reason that the 1998 act does not impose any liability of any kind on the directors or employees of an undertaking for which the companies can be vicariously responsible. the liability is a ‘personal’ one and that is enough to make the acts of the company ‘personal’ for the purpose of the application of the [ex turpis causa] maxim.”54 he went on to reject the application of hampshire land.55 this does not seem to be consistent with lord justice patten’s views on the scope of nonattribution in bilta: “… when it forms the subject matter of the action by the company against those whose breach of duty has caused it. in that context the damage is not secondary but primary and the company against those whose breach of duty has caused it. in that context the damage is not secondary but primary and the company is the direct victim of the breach of duty relied on.”56 however, lord justice pill explained why, in safeway stores, there might be a particular public policy behind rejecting the application of hampshire land to this part of the competition legislation: “the policy of the 1998 act is to protect the public and to do so by imposing obligations on the undertaking specifically. the policy of the statute would be undermined if undertakings were able to pass on the liability to their employees or the employees’ d&o (directors and officers) insurers. only if the undertaking itself bears the responsibilities and meets the consequences of their non-observance are the public protected… [t]he provisions of the 1998 act may be contrasted with those in part 6 of the enterprise act 2002 which created a criminal offence of dishonesty in agreeing to make identified anti-competitive agreements. under that statute the offence can be committed only by individuals.”57 it is interesting to note that in a case of primary attribution, a director voting at a board meeting in favour of an improper course of action by the 54 safeway stores (n 52) [27]. 55 ibid [29]. 56 bilta (n 24) [45]. 57 safeway stores (n 52) [44]. 229 case commentary company may not be personally liable unless his involvement in the course of action is more direct.58 rozeik in r v rozeik,59 rozeik was appealing his conviction for dishonestly obtaining property (namely cheques) by deception under section 15 of the theft act 1968. he had provided two finance companies with false invoices for property when entering into hire purchase agreements, but there was some evidence that the branch managers at the two finance companies knew that the information was false. at first instance, however, judge david smith qc instructed the jury that “if any employee of the company was deceived by that invoice into doing something which resulted in a cheque being obtained, then the prosecution have proved the case.” 60 lord justice leggatt, giving the judgment of the court of appeal, summarised the law thus: “whether or not a company is fixed with the knowledge acquired by an employee or officer will depend on the circumstances. it is necessary first to identify whether the individual in question has the requisite status and authority in relation to the particular act or omission in point…61 an employee who acts for the company within the scope of his employment will usually bind the company since he is the company for the purposes of the transaction in question…62 the company may be liable to third parties or be guilty of criminal offences even though that employee was acting dishonestly or against the interests of the company or contrary to orders. but different considerations apply where the company is the victim and the employee’s activities have caused or assisted the company to suffer loss. the company will not be fixed with knowledge where the employee or officer has been defrauding it… in such a case knowledge of a manager is not to be imputed to his employers if the manager is acting in fraud of his employers and the knowledge which 58 mca records inc v charly records ltd (no. 5) [2001] ewca civ 1441; [2003] 1 bclc 93 cf koninklijke philips electronics nv v princo digital disc gmbh [2003] ewhc 2588 (pat); [2004] 2 bclc 50. 59 [1996] 1 wlr 159 (ca). 60 ibid 161. 61 el ajou (n 26) 696. 62 director general of fair trading v pioneer concrete (uk) ltd. and another [1995] 1 ac 456 (hl) 465. 230 the denning law journal he has is relevant to the fraud…63 the reason why the company is not visited with the manager’s knowledge is that the same individual cannot both be party to the deception and represent the company for the purpose of its being deceived.”64 so, if it had been proved that the managers had been dishonest, in effect working with rozeik, then their knowledge would not have been attributed to the company and the company would have been deceived and both rozeik and the managers guilty under section 15. however, the managers had not been called as witnesses, and so without any clear evidence of their dishonesty, their possible knowledge could be attributed to the company and so there was a doubt that the company was deceived. rozeik’s conviction was quashed. lord justice leggatt’s “circumstance” based approach as to when the normal rules of attribution are overridden in the criminal sphere is very much in line with lord justice patten’s “context” based approach in the civil sphere. is hampshire land dead? clearly in one sense hampshire land is very much alive. it is remarkable that a 1st instance decision dating from before many of the key house of lords decisions on company law,65 is still cited so often.66 this is so, even though the actual decision in the case would almost certainly now fall to be decided under what has become section 40 of the companies act 2006. nevertheless, as this brief survey of some of the cases citing hampshire land shows, the original rationale given in hampshire land has to be doubted, at least outside the area where a company’s legal position is determined by the attribution or non-attribution of mere knowledge. where, attribution is of dishonest, intentional or reckless thoughts and actions, the implausible width of the rationale was highlighted by lord justice mummery in morris v bank of india67 and most recently by lord justice patten in bilta68 where he went on to say: “in particular, the rationale based on the inherent unlikelihood of the director disclosing his own fraud to the object of his deceit might be 63 attorney general’s reference (n 17). 64 ibid 164. 65 not just brown (n 2) and lennard’s (n 3), but even by a few months, the house of lords decision in salomon v a salomon & co ltd [1897] ac 22 (hl). 66 30 times since 2000 in westlaw, ie over twice a year. 67 morris (n 20) [114]. 68 bilta (n 24) [41]. 231 case commentary thought to apply even where the intended victim was not the company, of which he was a director or officer but was a third party.”69 that has been clearly rejected with the development of the primary victim rule; but as lord justice patten pointed out, the primary victim restriction on the application of the hampshire land rationale is not a complete explanation of when a company should or should not have the improper thoughts and actions of its agents attributed to it. even if the company is a primary victim, the “liability cases” show that attribution of such thoughts and actions should be allowed to determine the company’s liability to third parties.70 on the other hand, lord justice patten also believed that there should be no attribution even if the company is a secondary victim and the company is suing its agent for breach of duty. this seems to have been the position of lord justice leggatt in rozeik when he considered attribution and non-attribution in a criminal context.71 there is at least one case where a company was clearly suing its agents as a secondary victim, safeways,72 where the court of appeal refused to make an exception to attributing improper thoughts and actions to the company. however, as lord justice pill highlighted, the legislation was itself in an unusual form.73 most legislation creating criminal or other liabilities does so in terms appropriate for individuals and leaves it to the courts to interpret, now guided by meridian,74 whether and how it might be applied to companies. the competition act 1998 clearly makes the “undertaking” liable and lord justice pill’s interpretation of the public policy behind that is itself an example of following the approach of lord hoffmann in meridian. this leaves the house of lords decision in stone & rolls.75 in bilta, lord justice patten ingeniously managed, in effect, to adopt the arguments of the two dissenting judgments in stone & rolls. as a matter of making sense of this area of law, i have enormous sympathy with lord justice patten. in what was his final uk judgment before retirement, lord scott in stone & rolls ended an exemplary career as a judge interpreting company law, even if, as in that case, he sometimes failed to convince his fellow judges.76 69 ibid [41]. 70 ibid [34]. 71 rozeik (n 59) 164. 72 safeway stores (n 52). 73 ibid [44]. 74 meridian (n 5). 75 stone & rolls (n 34) 1391. 76 for a much earlier example of when his fellow judges should have heeded sir richard scott v-c as he then was, see his 1st instance judgment in equitable life assurance society v hyman [1999] pens lr 297 (ch), dismissed by the house of lords with disastrous consequences at [2002] 1 ac 408 (hl). 232 the denning law journal nevertheless, until the supreme court revisits this area, lower courts still have to deal with lords walker and brown’s explanation of hampshire land and its limitations. fortunately, a supreme court decision is imminent as permission to appeal bilta to the supreme court was granted in february 2014 and the hearing is set for the autumn. the truth is that the law has moved so far away from the original rationale in hampshire land that it is time to kill it off. perhaps when the supreme court does consider bilta, the one element of lords walker and brown’s judgments in stone & rolls that should be adopted is to rename the rule or rules on non-attribution as the “adverse interest” principle and then consign the use of hampshire land to history. 233 rules of attribution hampshire land towards the primary victim principle rejecting hampshire land stone & rolls could stone & rolls be distinguished? safeway stores rozeik is hampshire land dead? human rights, 'arranged' marriages and nullity law: when do 'force', parental 204 denning law journal 2015 vol 27 pp 204-240 the model for a path forward. a proposal for a model law dealing with cyber-squatting and other abusive domain name practices james plotkin  1. introduction the internet is without a doubt the most powerful network ever developed. its connective capacity and speed are peerless. one of the internet‘s primary applications is and always has been e-commerce. given the prevalence of online shopping, 1 strong online presence is a commercial necessity, and the preferred means of identifying a business online is by a domain name containing the business‘ trademark. a single domain name can only be associated with a single website. domain names are therefore a scarce resource. cyber-squatters exploit this resource by registering domain names that are either identical or confusingly similar to well-known trademarks. they then attempt to sell the domain name(s) to the legitimate trademark holder for a profit. little is written today about domain name dispute resolution and cyber-squatting. the majority of the literature on the subject was published between 2000 and 2003. this is surprising given the fact that the incidence of cyber-squatting has not abated since the internet‘s early days and has in fact been on the rise for the past nine years. 2  james plotkin, llb, jd jamesplotkin@gmail.com 1 in 2010, canadians placed nearly 114 million orders while shopping online, averaging about 10 orders per person. orders totalled $15.3 billion, with an average value of $1,362 per person per year. see: ‗online shopping‘ (statistics canada, 20 december 2012) <http://www.statcan.gc.ca/pub/11-402x/2012000/chap/retail-detail/retail-detail01-eng.htm> accessed 5 october 2014. 2 the world intellectual property organization (wipo) has received increasing numbers of complaints since 2005. see: ‗wipo udrp domain name decisions (gtld)‘ (world intellectual property organization – arbitration and mediation center) <http://www.wipo.int/amc/en/domains/decisionsx/> accessed 2 october 2014. the denning law journal 205 the current legal framework surrounding domain names comports two major components: 1) national trademark laws; and 2) the internet corporation for assigned names and numbers (icann) uniform dispute resolution policy (udrp). 3 the united states is the only jurisdiction to enact a purpose-built piece of legislation aimed at abusive domain name registration practices. that law is called the anticybersquatting consumer protection act (acpa). 4 given that cyber-squatting is as prevalent as ever, the current regulatory regime is clearly inadequate to deal with this issue. both the udrp and acpa suffer from significant shortcomings. the proposed solution represents a major change to the current cyber-squatting framework ̠a model law dealing with cyber-squatting and other abusive domain name practices. this purpose-built piece of model legislation would create causes of action for cyber-squatting and what is known as reverse-domain name hijacking, the practice of instituting false cybersquatting claims to have a domain name transferred from a registrant. 5 first, this paper briefly describes the domain name system (dns), defines cybersquatting, and presents data demonstrating a need for further regulation. next the paper examines the existing legal regime, namely the udrp and the acpa. 6 while both of these instruments are useful, they suffer from certain legal (and, in the case of the udrp, empirical) shortcomings. finally, this paper makes the case for a model law dealing with cyber-squatting and other abusive domain name practices and elaborates on several key provisions of the proposed model law. 7 3 ‗uniform domain name dispute resolution policy‘ (internet corporation for assigned names and numbers, 24 october 1999) <https://www.icann.org/resources/pages/policy-2012-02-25-en> accessed 29 september 2014. note that certain country-code top level domain registries have established their own dispute resolution policies. these policies generally strongly resemble the udrp. one such example is the canadian internet registration authority (cira): canadian dispute resolution policy (cdrp). 4 15 usc s1125(d) and 15 usc s1114(2)(d)(v). 5 sallen v corinthians licenciamentos [2001] 273 f3d. 6 while it is beyond the scope of this paper to examine a large number of national trademark laws, part 4 below briefly explains why domain names do not fit neatly into the trademark context. 7 the author recognizes that icann‘s recent initiative allowing private entities to register their own ‗generic top-level domains (gtlds) is perhaps a more current issue. it falls outside the scope of this paper and has therefore intentionally been excluded. this is because the process for registering these gtlds is different from that relating to domain names; so too is the dispute resolution framework. icann has established a sunrise period for each new a proposal for a model law dealing with cybersquatting 206 this edition of the denning law journal has running through it a common thread: magna carta. while the proposals set out in this writing fall well short of anything resembling a ―great charter of the internet‖, it does touch on some of the subject matter such a document would cover, namely property rights and access to swift justice. in that regard, it is fitting that this paper be included in an edition celebrating the 800 th anniversary of magna carta, for had such a document been written today, it is not unreasonable to think that domain names, as digital property rights, may have garnered the barons‘ attention. 2. the dns and cyber-squatting primer before delving into the current cyber-squatting legal framework, and potential regulatory innovations, it is useful to first briefly define exactly what cyber-squatting is and introduce the domain name system (dns), the vehicle with which cyber-squatters ply their trade. this section also presents data demonstrating that cyber-squatting is still a problem in need of regulation. a. the dns at its core, the internet, like all networks, is little more than a web of connections (albeit a particularly vast and complex one). in the same way that the postal system relies on physical addresses to identify the source and destination of mail, the internet relies upon ―internet protocol (ip) addresses‖ to identify computer systems allowing information to be transferred between them. 8 ip addresses consist of sets of numbers which themselves break down into binary bits. 9 early developers of the internet rightly thought that this system would be cumbersome as it is difficult for individuals to remember long sets of integers. the dns was created to address this problem. a domain name is composed of a hierarchical set of ―labels‖ separated by gtld registration allowing trademark holders to submit claims for domains in the new tld. in contrast, the present paper offers a new model for ex post dispute resolution. 8 david lindsay, international domain name law: icann and the udrp (1st edn, hart publishing 2007) 3. 9 john postel and a cooper, ‗the us domain (rfc 1480)‘ (usc/information sciences institute, june 1993) <http://tools.ietf.org/html/rfc1480> accessed 2 october 2014. the denning law journal 207 periods (.). 10 each domain name consists of a ―top-level domain‖ (tld) and a ―second-level domain‖. 11 tlds are contained in all web addresses and occupy the right-most portion of a domain name. there are several categories of tlds. among the most notable ones are ―generic top-level domains‖ (gtlds) such as ―.com‖, ―.net‖ and ―.edu‖and ―country-code top level domains‖ (cctlds) –like ―.ca‖, ―.us‖ and ―.eu‖. each must be administered by a registry responsible for registering the second-level domains under the tld. 12 to the left of the tld in the domain name lays the second-level domain. this is the part of the domain name that bears the greatest significance to internet users as they are unique and identify a defined address space on the web. it is also the part of the domain name that is susceptible to cyber-squatting and is thus the subject of the present inquiry. 13 b. cyber-squatting cyber-squatting has come to connote several different activities. ―classic cyber-squatting‖ could be defined as the act of registering domain names that are either identical or confusingly similar to trademarks, and then attempting to sell the domain name(s) to the legitimate trademark holder for a profit. the u.s. court of appeal for the 9 th circuit offered the following definition: ―cybersquatting is the internet version of a land grab. cybersquatters register well-known brand names as internet domain names in order to force the rightful owner of the marks to 10 paul mockapetris, ‗domain names – implementation and specification (rfc 1035)‘ (usc/information sciences institute, 1987) <http://tools.ietf.org/html/rfc1035> accessed 2 october 2014. 11 domain names may contain further sub-levels (third level domain, fourth level domain etc.), but for the purposes of this writing, only tlds and second level domains are relevant. 12 for example, verisign inc is the registry responsible for the ‗.com‘ and ‗.net‘ gtlds. the canadian internet registration authority (cira) is responsible for administering the ‗.ca‘ cctld. 13 from this point forward, the term domain name will reference second-level domains. a proposal for a model law dealing with cybersquatting 208 pay for the right to engage in electronic commerce under their own name.‖ 14 a related activity known as ―typo-squatting‖ consists of registering a domain name that is nearly identical to an existing website, save that it contains a typo that people commonly make when trying to access that site. 15 this is done to divert traffic from the intended website to the ―typo site‖ for the purposes of generating advertising revenue or gaining exposure for the website‘s content. panels constituted under the udrp have found that the policy captures typo-squatting. 16 typo-squatting has also been captured by the acpa (see section 3c below). 17 ―domaining‖ is another deceitful practice by which the alleged cybersquatter registers a domain name (usually containing a trademark) that he or she believes will see a high volume of traffic with the goal of generating advertising revenue. 18 here the cyber-squatter never actually tries to sell the domain name, though he or she is profiting from it all the same. cybersquatting is an international problem and has been since the early days of the internet. the world intellectual property organization (wipo) arbitration and mediation center is the world‘s busiest domain name dispute resolution provider. since 2000, it has handled between 1700-2600 disputes annually with a marked uptake in complaints since 2005. 19 in 2013 alone, wipo administered over 2000 domain name disputes. 20 14 interstellar starship services, ltd v epix, inc, [2002] 304 f 3d 936, 946. see also harrods ltd v sixty internet domain names [2002] 302 f3d 214, 219-20, 238. 15 for example, instead of ‗youtube‘, one may erroneously enter ‗youtubr‘ into the address bar of a web browser (the ‗r‘ key is directly adjacent to the ‗e‘ key on a standard computer keyboard). see christopher clark, ‗the truth in domain names act of 2003 and a preventative measure to combat typosquatting‘ [2004] 89-6 cornell l rev 1476, 1480. 16 see for example: dell computer corporation v clinical evaluations [2002] no d2002-0423; expedia, inc v alvaro collazo [2003] no d2003-0716; and marriott international, inc v seocho [2003] naf decision no fa149187. 17 shields v zuccarini [2001] 254 f 3d 476, 483. 18 see for example teva pharmaceutical industries ltd v apex domain pty ltd [2014] no dau2014-0001. 19 ‗wipo udrp domain name decisions (gtld)‘ (world intellectual property organization – arbitration and mediation center) <http://www.wipo.int/amc/en/domains/decisionsx/> accessed 12 october 2014. 20 ibid. the denning law journal 209 the vast majority of disputes involve only a single domain name, though there is no limit to the number of domain names that may be the subject of a single udrp proceeding. 21 for example, in hermes international v. brian e. nielson 22 , the sole panellist granted the transfer of 184 domain names to the complainant. multiple domain names have also been adjudicated in the same action under the acpa. 23 despite the fact that there are legal implements in place giving trademark holders the tools to combat cyber-squatting, the issue is still pervasive. the current regulatory framework surrounding domain names therefore merits closer inspection to determine if and where it comes up short. 3. the current system – the icann udrp and the acpa domain names are currently regulated by means of a few (sometimes conflicting) legal regimes. operating on a transnational level, the icann udrp is the most important piece of the domain name regulation. this is because every icann accredited domain name registrar has incorporated the udrp into the terms of its domain name registration agreements. this means that virtually every domain name registrant has agreed to be bound by the udrp. the acpa is the only purpose-built piece of national cyber-squatting legislation enacted as of this writing. its broad scope of application, which as demonstrated below stretches far beyond the u.s., is relevant to any discussion on global domain name policy. this is particularly true here given that this paper advocates a model law approach. the opportunity to examine a piece of national legislation with a fifteen-year history is essential to plotting a path forward. finally, domain names have received some protection via national trademark laws. as discussed more fully in part 4 below, trademark law is ill-equipped to deal decisively with cyber-squatting because domain names are conceptually different from (though related to) trademarks rendering the application of certain key trademark law concepts difficult. 21 jean-francois poussard, ‗keep alert white paper: domain name cybersquatting in 2013‘ (keep alert, may 2014) <http://sys.to/cyb13en> accessed 10 october 2014. 22 [2013] no d2013-1407. 23 harrods (n 14). a proposal for a model law dealing with cybersquatting 210 a. the udrp in december of 1999, icann set afoot its udrp in an effort to combat cyber-squatting. the udrp was intended to provide a streamlined arbitration-style procedure by which a complainant, upon meeting the criteria set out in the policy, could have a domain name containing its trademark transferred or cancelled. to be successful in a udrp complaint, a complainant must show that: (i) the impugned domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; (ii) the registrant has no rights or legitimate interests in respect of the domain name; and (iii) the registrant registered and is using the domain name in bad faith. 24 section 4(c)(i)-(iii) sets out a non-exhaustive list of affirmative defences to counter a complaint under section 4(a): (i) before any notice to the registrant of the dispute, its use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; (ii) the registrant (as an individual, business, or other organization) have been commonly known by the domain name, even if the registrant has acquired no trademark or service mark rights; or (iii) the registrant is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. the udrp was originally intended to deal with ―easy cases‖ of blatantly abusive domain name registrations. 25 since the udrp is agreed to by default by every domain name registrant, and given the relatively low cost of proceeding under the policy as compared with any form of litigation, the udrp has seen steady, and at times growing, application since its inception. 26 24 uniform dispute resolution policy (udrp), s 4(a)(i)-(iii). 25 see greame b dinwoodie, ‗(national) trademark laws and the (nonnational) domain name system‘ [2000] 21 u pa j int‘l econ l 495, 511; bernadette dino, ‗passive warehousing under icann‘s uniform dispute resolution policy: a utilitarian perspective‘ [2002-2003] 10 comm law cons 301, 301-302. 26 ‗wipo udrp domain name decisions (gtld)‘ (n 2). the denning law journal 211 b. shortcomings of the udrp this subsection examines the shortcomings of the udrp. these have been divided into ―legal shortcomings‖ and ―empirical shortcomings‖. c. legal shortcomings the udrp suffers from a number of legal shortcomings. some of these, like the fact that the udrp fails to stipulate an applicable body of law, are general; others are specific to certain countriesfor example that the udrp conflicts with certain consumer protection laws.  no set body of law beyond the requirements to prove a claim and the listed affirmative defences in section 4, the udrp does not prescribe any legal rules to be applied by udrp panels. udrp rules 15a states that: ―a panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the policy, these rules and any rules and principles of law that it deems applicable.‖ 27 (emphasis added). reference to national laws may be required to establish whether a complainant has a legitimate trademark rights. section 4(a)(i) of the udrp says ―trademark or service mark in which the complainant has rights‖. there is no requirement that the trademark be registered which opens the door to allowing complainants to oppose a domain name registration on the basis of a common law trademark. some countries such as france and china do not have unregistered trademarks. 28 for these reasons, it would be appropriate for a udrp panel to refer to a given jurisdiction‘s law. national laws should not, however, be used as a basis for determining confusion or bad faith. the legal tests associated with confusing use of a trademark or trademark infringement may vary from jurisdiction to jurisdiction. as panels are free to apply whichever legal principles they 27 ‗rules for uniform domain name dispute resolution policy (the ―rules‖)‘ (internet corporation for assigned names and numbers, 30 october 2009), <https://www.icann.org/resources/pages/rules-be-2012-02-25-en> accessed 2 november 2014. 28 france is one such example, less an exception for protection of unregistered ‗well-known‘ marks pursuant to art 6bis of the paris convention for the protection of industrial property. see: david i greenbaum, ‗no registration, no problem‘ [2013] 40 world trademark magazine 90. a proposal for a model law dealing with cybersquatting 212 consider appropriate, it is difficult for parties to a udrp proceeding to know exactly what legal standard they have to meet. likewise, the notion of bad faith is not a rigid concept. 29 there is a fair degree of variation in how different udrp panels have interpreted the bad faith requirement. some have even transferred domain names that were registered before the udrp took effect and when there was no attempt to sell the domain name to the complainant. 30 how does a panel choose to apply one country‘s laws over another? should the law be that of the complainant‘s jurisdiction, respondent‘s jurisdiction or the law of the dispute panel‘s seat? at least one author held out hope that udrp panels could develop a rich corpus of conflict of law rules. 31 this does not seem to have materialized.  udrp is not binding on courts section 4(k) of the udrp says that: ―the mandatory administrative proceeding requirements set forth in paragraph 4 shall not prevent either you or the complainant from submitting the dispute to a court of competent jurisdiction for independent resolution before such mandatory administrative proceeding is commenced or after such proceeding is concluded.‖ several u.s. courts have noted the non-binding nature of udrp proceedings. 32 the fact that parties to a udrp proceeding may commence a court action at any time clearly undermines the value and finality of a udrp panel decision (and arguably the process as a whole). one of the more attractive features of arbitration generally is that it allows for final resolution of an issue in a forum that is (often) less costly and time consuming than court. 33 this cost efficiency is challenged by the fact that 29 see generally emily houh, ‗the doctrine of good faith in contract law: a (nearly) empty vessel?‘ [2005] 1 utah l rev 1. 30 hearst communications inc and hearst magazines property inc v david spencer d/b/a/ spencer associates, and mail.com, inc, [2000] naf case no. fa0093763. 31 see laurence r helfer, ‗whither the udrp: autonomous, americanized, or cosmopolitan?‘ [2004] cardozo j int‘l & comp l 493, 504. 32 sallen (n 5); weber-stephen products co. v. armitage hardware [2000] case no. d2000-0187 and building supply inc, [2000] 54 uspq 2d 1766; parisi v netlearning, inc, [2001] 139 f supp 2d 745. 33 thomas j stipanowich, ‗arbitration: the ―new litigation‖‘ [2010] 1 u ill l rev 1, 4. the denning law journal 213 udrp panel decisions are not binding. so too is the time efficiency in the event that one of the parties chooses to re-litigate the issue before a court.  complainant driven selection process one of the most biting criticisms of the udrp is the fact that the complainant driven provider selection process provides a major incentive for dispute resolution providers and panellists to be ―complainant friendly.‖ 34 one author noted that there is ―statistical evidence that selection of dispute resolution service providers by challengers leads to forum shopping that biases the results.‖ 35 while this is discussed in greater depth in part ii (empirical shortcomings) below, consider the following. wipo is the largest udrp dispute resolution provider; naf is the second largest. in 2000, wipo and naf together accounted for about 90% of udrp disputes decided annually. 36 a third provider, eresolutions (based in quebec) accounted for about 7% of udrp disputes. eresolutions ceased offering udrp arbitration services in 2001. 37 its president, professor karim benyekhlef, spoke out in a press release in which he condemned the whole udrp framework as being biased in favour of complainants and blamed wipo in specific for perpetuating the problem. 38 whether or not professor benyekhlef was correct, eresolutions was the only udrp provider that demonstrated a more balanced record of decisions. 39  panellists tend to be pro-intellectual property by nature unlike courts which tend to be made up of judges with various practice or academic backgrounds, the overwhelming majority of udrp 34 laurence r helfer and graeme b dinwoodie, ‗designing non-national systems: the case of the uniform domain name dispute resolution policy‘ [2001] 43 wm & mary l rev 144, 210. 35 milton meuller, ‗rough justice, an analysis of icann‘s uniform dispute resolution policy (v2.1)‘ <http://www.acm.org/usacm/ig/roughjustice.pdf>, 2. 36 ibid. 37 kieren mccarthy, ‗eresolution quits domain arbitration: blames wipo‘ (the register, 4 december 2001) <http://www.theregister.co.uk/2001/12/04/eresolution_quits_domain_arbitration/ > accessed 12 november 2014. 38 ibid. 39 meuller (n 35) 11. a proposal for a model law dealing with cybersquatting 214 panellists are practicing or retired intellectual property lawyers. these individuals (understandably) tend to favour strong intellectual property rights enforcement. in any case in which a respondent‘s defense is not based on intellectual property rights, the argument could be made that the average panellist would be less receptive to that line of argumentation. one common example is when respondents raise freedom of expression defenses. in 2013, three wipo udrp panels assessed complaints in which the respondent mounted a freedom of expression defense. 40 the domain names were transferred in two of those cases. the complaint was denied in the third, but on the grounds that the complainant did not meet the standard set out in section 4(a) of the udrp. wal-mart stores, inc. v. walsucks and walmarket puerto rico is a well-known wipo panel decision dealing with a group of domain names which were variations on the theme ―wal-martsucks.com‖. 41 that decision seems to all but ignore the respondent‘s freedom of expression argument altogether: ―for purposes of deciding this proceeding, the panel need not explore the content of respondent‘s website, nor the relevance of the quantum of expression on his website.‖ 42 one would think that in order to determine whether a registrant is making legitimate use of a domain name, it would be germane to in fact view the website‘s content, especially when a freedom of expression defense has been mounted. none of this conclusively proves systemic bias or pre-judgment by udrp panellists. however, some udrp decisions, like wal-mart, demonstrate a marked disinclination towards freedom of speech defenses to udrp complaints.  little protection against reverse-domain name hijacking rule 15(e) of the udrp rules defines reverse-domain name hijacking as ―using the policy in bad faith to attempt to deprive a registered domain-name holder of a domain name.‖ as noted, the udrp was originally conceived to deal with the most blatant and uncontroversial instances of cyber-squatting. 43 icann recognized this by adding the 40 the priory in new zealand of the most venerable order of the hospital of st john of jerusalem v 24-7 ltd / domains by proxy, llc, [2012] case no d20122301; deskan s/a v prq inet kb / internet.bs corp. / fundación private whois [2013] case no d2013-1112; and yellowstone mountain club llc v offshore limited d and pci [2013] case no d2013-0097. 41 [2000] case no d2000-0477. 42 ibid. 43 dinwoodie (n 25) 511. the denning law journal 215 affirmative defences at section 4(c)(i)-(iii). this has proven to be inadequate in that the udrp does not provide any meaningful sanctions for frivolous or abusive process as is the case in civil litigation. 44 the low cost of a udrp proceeding makes it an attractive avenue for a complainant who, despite not having a strong chance of success, is willing to launch a complaint in the hopes that it will go unopposed.  udrp does not protect against ―passive warehousing‖ passive warehousing refers to the practice of registering potentially sought after domain names without intent to use them or actively market them as would a classic cyber-squatter. instead, the passive warehouser relies on instances in which a trademark holder seeks to register a domain name, finds out that it is already registered to someone else, and then offers that individual (the warehouser) a sum of money for the domain name. 45 this activity is objectionable under the spirit of the udrp and would be captured by a broad definition of cyber-squatting. since section 4(a)(ii) requires that a complainant show not only registration, but use in bad faith, a passive warehouser should not be caught by the udrp. 46 this seems to make a distinction where none should exist. there are perfectly obvious instances of passive-warehousing which by all accounts would be objectionable under the udrp but for the ―use in bad faith‖ requirement. this wording therefore obfuscates the udrp‘s purpose by allowing an entire sub-category of genuine cyber-squatting to go unaddressed.  udrp does not protect personal names that are not registered as trademarks 44 catherine a shutz and courtney a hofflander, ‗reverse-domain name hijacking and the uniform dispute resolution policy: systematic weaknesses, strategies for the respondent, and proposed policy reforms‘ [2013] cybaris ip l rev 218, 233-234. 45 see dino (n 25) 301. 46 this is consistent with the findings of icann‘s second staff report. see ‗second staff report on implementation documents for the uniform dispute resolution policy‘ (internet corporation for assigned names and numbers, 25 october 1999) <http://www.icann.org/udrp/udrp-second-staff-report24oct99.htm> para 4.1(c). a proposal for a model law dealing with cybersquatting 216 strictly speaking, the udrp is only supposed to apply to existing ―trademarks of service marks‖. 47 this excludes personal names of famous individuals who have not obtained trademark rights therein. despite the fact that the udrp should properly exclude complaints of this kind, several have been made and some have resulted in the impugned domain name(s) being transferred or cancelled. both bruce springsteen and julia roberts were successful in front of wipo udrp panels. 48 sting was less fortunate. 49 apart from the unfortunate section 4(a)(1)‘s wording, there is no reason why the definition of cyber-squatting should exclude instances in which alleged cyber-squatter‘s buy up domain names containing famous individuals‘ names. these domain names are valuable to (and have been targeted by) cyber-squatters in the same way as those containing wellknown trademarks. that said, given that the policy currently excludes these rights, the fact that udrp panels have found in favour of complainants in these scenarios is disconcerting.  conflict with consumer protection laws some authors have voiced concern about potential conflicts between the udrp and national consumer protection laws. 50 under both french and german law, it would appear that at least some domain name registrants would be considered consumers under the relevant consumer protection statutes. 51 these laws prohibit clauses in consumer contracts which require mandatory submission to arbitration. in cases where the respondent in a udrp proceeding fits under the definitions of consumer set out in these laws, the udrp clauses found in domain name registration agreements would be invalidated. in canada, consumer protection laws would not appear to prohibit incorporating the udrp into domain name registration agreements. the only two provinces whose consumer protection legislation addresses the 47 udrp s 4(a)(i). 48 bruce springsteen v jeff burgar and bruce springsteen club [2000] case no d2000-1532; and julia fiowna roberts v russel boyd [2000] case no d20000210. 49 gordon sumner, p/k/a sting v michael urvan [2000] case no d2000-0596. 50 for an in depth discussion on how the incorporation of the udrp into internet registrar/registrant contracts may be counter to the consumer protection laws in france and germany, see: holger p hestermeyer, ‗the invalidity of icann‘s udrp under national law‘ [2002] 3 minn intell prop rev 1, 32. 51 hestermeyer (n 50) 36-37. the denning law journal 217 binding nature of arbitration agreements in consumer contracts are quebec and ontario. 52 the relevant provisions of those laws only prevent the clauses from prohibiting a consumer from suing in court. as discussed above, the udrp expressly allows for court proceedings concurrent with or consecutive to udrp proceedings. these provisions therefore should not apply.  conflict with language laws the udrp was only officially drafted in english. 53 to this day, icann has not released an official version of the udrp in any other language. 54 this appears to be a serious oversight on icanns part given the international application of the policy. more than being an inconvenience to non-english speakers, the unilingual nature of the udrp may in fact invalidate its application in certain countries. french law and its ―legendary contempt‖ for the use of other languages on its territory require that consumer contracts be in french. 55 incorporating the udrp by reference therefore appears to offend that law. german law requires that the contract be in a language understandable to the parties. 56 in a contract between a german registrant and registrar, that language would likely be german. the udrp clause would therefore fall under those laws as well. d. empirical shortcomings the udrp is often criticized as being substantively one-sided. while this may or may not be the case, the fact that it is applied by dispute resolution providers in a one-sided manner is empirically verifiable. 57 in 2000, complainants won 67.5% of wipo udrp proceedings and 71.5% 52 art 11.1 of the quebec consumer protection act, c p-40.1; and s 6(2) of the ontario consumer protection act, 2002, so 2002 ch 30 sch a. 53 hestermeyer (n 50) 38. 54 see ‗uniform domain-name dispute-resolution policy‘ (internet corporation for assigned names and numbers) <https://www.icann.org/resources/pages/udrp2012-02-25-en> accessed on 13 november 2014. even though the page linking to the udrp may be viewed in english, french, spanish, arabic, russian (cyrillic) and chinese, as of 13 november 2014, the policy itself is still only accessible in english. 55 hestermeyer (n 50) 42. 56 hestermeyer (n 50) 41. 57 meuller (n 35) 34. a proposal for a model law dealing with cybersquatting 218 of naf proceedings. 58 eresolution decided only 44.5% of disputes in favour of complainants; it filed for bankruptcy in 2001. 59 thirteen years later, the numbers are even more skewed in favour of complainants. in 2013 wipo decided in favour of complainants 91% of the time. 60 naf edged wipo out at 92%. 61 the fact that panel decisions are decided overwhelmingly in favour of complainants is not itself sufficient proof of bias, though it does raise questions. forum shopping has been labelled as an endemic issue the udrp‘s application. 62 while complainant bias is the most obvious factor in selecting a udrp dispute resolution provider, given that complainant bias is nearly uniform across all providers, it cannot be the sole factor. one exhaustive empirical study of udrp proceedings conducted in 2005 showed an unequivocal bias by providers towards nationals from their own countries. 63 the same study found that the panellist selection process itself favours complainants. in the event that the complainant opts for a single panellist (and the respondent does not request a three-member panel), the provider chooses the panellist. 64 when the provider chooses the sole panellist, complainants win 80% of the time whereas in the case of three-member panels –where each party chooses one panellist– complainants only win 63% of the time. 65 if one is of the opinion that the udrp itself is skewed towards complainants, this data is not very revelatory. it would simply show that udrp dispute resolution providers are faithfully applying a complainantcentric policy. however, if it is in fact true that the udrp is balanced from a policy perspective, then this data shows conclusively that udrp dispute resolution providers and panellists are biased towards complainants. 58 ibid 11. 59 ibid and mccarthy (n 37). 60 poussard (n 21) 8. 61 ibid 21. 62 meuller (n 35) 2. 63 jay p kesan and andres a gallo, ‗the market for private dispute resolution services an empirical re-assessment of icann-udrp performance‘ 11 mich. telecomm tech l rev 285, 296. 64 udrp rules, r 6(b). 65 kesan (n 63) 300. see also michael geist, ‗fair.com? an examination of the allegations of systemic unfairness in the icann udrp‘ (2002) 27 brook j int‘l l 903, 926. the denning law journal 219 e. the acpa and its case law the acpa was enacted by the u.s. congress in 1999 to explicitly deal with cyber-squatting. the law (an amendment to the lanham act) gives trademark holders a new cause of action against cyber-squatters and also allows for a plaintiff to bring an action in rem against a domain name itself. the law also comports a provision offering relief for litigants who believe they are the victim of reverse-domain name hijacking. 66 in determining the optimal path forward, it is relevant to examine the acpa and some of its case law for at least two reasons: 1) the acpa is, as of this writing, the only national law in force that directly addresses cyber-squatting; and 2) given u.s. federal courts‘ position on jurisdiction over cyber-squatting claims (discussed more fully below), the acpa has significant extra-territorial effect and relevance. f. the acpa the acpa is found at 15 u.s.c. §1125(d) and 15 u.s.c §1114(2)(d). the provisions under § 1125(d) create a cause of action for trademark holders against cyber-squatters. §1114(2)(d)(i)-(iv) deal with limiting domain name registrars, registries, or other domain name registration authorities‘ liability when they comply with court and panel orders. §1114(2)(d)(v) is a novel provision allowing a registrant believing that his or her domain name was transferred by a udrp panel in error to have a court declare that it is the rightful owner and restore its registration.  bad faith registration of a domain name §1125(d)(1)(a) §1125(d)(1)(a) makes it actionable to register a domain name that is identical or confusingly similar to a trademark with a ―bad faith intent to profit from that mark‖. 67 §1125(d)(1)(b) sets out nine factors to be considered in determining whether the bad faith requirement is met. some of the factors mirror those found in the udrp such as ―the extent to which the domain name consists of the legal name of the person or a name that is otherwise commonly used to identify that person‖ 68 or ―the person‘s prior use, if any, of the domain name in connection with the bona fide offering of any goods or services‖ 69 . others are unique to the acpa. 66 15 usc s 1125 (3)(c) for definition of reverse-domain name hijacking. 67 15 usc s 1125(d)(1)(a)(i). 68 ibid s 1125(d)(1)(b)(i)(ii). 69 ibid s 1125(d)(1)(b)(i)(iii). a proposal for a model law dealing with cybersquatting 220 unlike the udrp, the factors set out in this section are non-exhaustive and need not all be considered in every instance. one of the main advantages of an action under §1125(d)(1)(a) of the acpa over a udrp proceeding is the availability of the full suite of common law and equitable remedies including damages, accounting of profits and injunctions.  in rem action against domain name §1125(d)(2)(a). in certain cases, the acpa also allows a plaintiff to undertake an action in rem against the domain name itself. 70 this is permitted when: 1) the plaintiff is unable to obtain in personam jurisdiction over the registrant; or 2) the plaintiff, having exercised due diligence, cannot locate the registrant. the acpa therefore favours actions in personam but allows an individual to sue a domain name directly if necessary. this is in recognition of the fact that people who register domain names that affect the holders of u.s. trademark rights are situated around the world and that registrants often provide false information to domain name registrars during registration. 71 unlike an action under §1125(d)(1)(a), proceeding under this provision limits the available remedies to the cancellation or transfer of the domain name.  preventing reverse-domain name hijacking §1114(2)(d)(v) reverse-domain name hijacking occurs when a trademark holder uses the udrp mechanism to bully a registrant out of a validly registered domain name. 72 §1114(2)(d)(v) addresses this abusive practice by empowering individuals who believe that their domain names should not have been cancelled or transferred to have that domain returned. §1114(2)(d)(v) reads as follows: 70 15 usc s 1125(d)(2)(a). 71 see kieren mccarthy, ‗77% of domain name registrations stuffed with rubbish‘ (the register, 17 february 2010) <http://www.theregister.co.uk/2010/02/17/domain_name_problems/> accessed 9 december 2014. 72 ryan r owens, ‗domain-name dispute-resolution after sallen v corinthians licenciamentos & barcelona.com, inc v excelentisimo ayuntameiento de barcelona‘ 18:1 berkeley tech lj 257, 262. the denning law journal 221 a domain name registrant whose domain name has been suspended, disabled, or transferred under a policy [udrp] described under clause (ii)(ii) may, upon notice to the mark owner, file a civil action to establish that the registration or use of the domain name by such registrant is not unlawful under this chapter. the court may grant injunctive relief to the domain name registrant, including the reactivation of the domain name or transfer of the domain name to the domain name registrant. the provision gives the court the power to grant injunctive relief requiring the domain name to be returned to its rightful owner. the provision does not, however, expressly give courts permission to award damages. g. case law under the acpa the following is a brief look as three key decisions under the acpa. they demonstrate how american courts have given the acpa a broad reading, extending far beyond the u.s. border.  sallen v corinthians licenciamentos 73 in 1998, jay sallen, a resident of massachusetts, registered ―corinthians.com‖ with network solutions inc. (nsi). corinthians licenciamentos (―corinthians‖) was a brazilian soccer team with trademark rights in the word ―corintheoa‖ (the portuguese equivalent to corinthian). sallen contacted corinthians offering to sell the domain name to the team. corinthians responded with a cease and desist letter demanding that he turn the domain name over to it. sallen did not comply. in may 2000, corinthians undertook a udrp preceding before a wipo arbitration panel to have the domain name transferred. 74 the panel found that the domain name was confusingly similar to corinthians‘ trademark and that sallen had registered and used it in bad faith. the panel ordered that the domain name be transferred to corinthians. sallen filed an action under the acpa in the u.s. district court for the district of massachusetts to have the wipo panel decision reviewed. his action was based on §1114(2)(d)(v) (the provision that addresses the practice of reverse-domain name hijacking). 73 sallen (n 5). 74 corinthians licenciamentos ltda v sallen [2000] no d2000-0461. a proposal for a model law dealing with cybersquatting 222 the district court refused sallen‘s claim on the grounds that no actual controversy existed between the parties at the time the action was brought. 75 on appeal, the us court of appeal for the first circuit found that it had jurisdiction as sallen‘s claim was based on a federal statute. corinthians argued that the court lacked subject-matter jurisdiction because the ―corintheao‖ trademark was registered in brazil, not in the u.s. the court found this argument unpersuasive. it based its reasoning on the language in §1114(2)(d)(v) which uses the term ―mark owner‖. the lanham act 76 comports separate definitions for the terms ―mark‖ and ―registered trademark‖. ―mark‖ is defined broadly and does not that require the trademark be registered in the u.s. in fact, the definition of ―mark‖ (which itself refers to the definition ―trademark‖) does not appear to set any territorial limitations. 77 in other words, the definition applies to trademarks that are used as such anywhere in the world. the court made reference to the fact that in drafting the acpa, congress intended to signal its awareness of the ―international nature of trademark disputes‖. 78 while the court actually agreed with the wipo panel on the merits, it made a rather grand statement when it said: ―a [federal] court‘s §1114(2)(d)(v) decision that a party is not a cybersquatter under the acpa, and that a party has a right to use a domain name, necessarily negates a wipo decision that a party is a cybersquatter under the udrp.‖ 79 keep in mind that the trademark at issue was not registered in the u.s. this case stands for the proposition that if a foreign complainant obtains an award from a udrp panel based on non-u.s. trademark rights, an american court will still assert jurisdiction over a complaint brought under the acpa. the sole basis for this is that the acpa is a federal statute enabling parties to bring causes of action relating to domain names, and that congress‘ legislative intent was clear. one author calls sallen a ―startling precedent endorsing the view that a federal statute in the u.s. can trump an international convention.‖ 80 this 75 art iii, s 2, clause 1 of the united states constitution limits the jurisdiction of u.s. federal courts to actual cases and controversies dealing with (among other things) federal law. 76 15 usc s 1051 et seq. 77 sallen (n 5) 24. 78 the court obviously misspoke here and should have at least said ‗internet related trademark disputes‘ or ‗cyber-squatting related disputes‘. 79 sallen (n 5) 28. 80 aaron j horowitz, ‗u.s. jurisdictional monopolization of international cybersquatting disputes: a review of current inequities and future consequences‘ [2006] 11 j. tech l & pol‘y 191, 203. the denning law journal 223 seems to be a slight overreaction in that the udrp is not an international convention; it is a policy created by a private entity. while it is true that, in effect, the udrp may have a broader and more pervasive application than many international treaties, it is still incorrect to call it an international legal instrument. while strictly speaking incorrect, the author‘s point is well taken. the corinthians decision demonstrates at least one u.s. court‘s disregard for international norms that touch on extra-territorial ip rights. from a practical perspective, a ruling of this nature under the acpa will only have effect if the registrar that registered the impugned domain is located either in the u.s. or a jurisdiction in which a u.s. court decision will be recognized and enforced. nsi is a u.s. based registrar. any order made by a u.s. federal court would therefore be binding upon it. had the domain name been registered with a chinese registrar, things may have been different.  harrods ltd. v sixty internet domain names 81 harrods uk (―harrods‖) operates a high end department store in london, england. harrods buenos aires (hba) was once a whollyowned subsidiary of harrods but had since begun operating independently. hba registered 60 domain names containing the ―harrods‖ trademark. both companies owned registered trademarks in ―harrods‖ in different countries (harrods being the owner of the u.s. trademark). after a breakdown in negotiations and an unsuccessful law suit for, among other things, passing-off in england, harrods filed an action in the eastern district of virginia against hba citing breaches of the acpa. 82 unable to show that the court had personal jurisdiction over hba, harrods brought an action in rem against the domain names themselves. the district court held in favour of harrods with reference to 54 of the domain names but granted summary judgement in favour of hba for six. on appeal, the u.s. court of appeal for the fourth circuit upheld the trial judge‘s ruling as to the 54 domains to be transferred to the plaintiff but overturned the summary judgement ruling finding that it was inappropriate given the plaintiff‘s lack of opportunity to conduct discoveries. citing the united states supreme court, the fourth circuit based its decision on an old common law doctrine dealing with damage 81 harrods (n 14). 82 note that nsi, the registrar with which the 60 domains were registered was located in virginia. a proposal for a model law dealing with cybersquatting 224 caused by an absentee owner‘s land ―suits for injury suffered on the land of an absentee owner, where the defendant‘s ownership of the property is conceded but the cause of action is otherwise related to rights and duties growing out of that ownership.‖ 83 the court ruled that hba was tantamount to an absentee owner of the domain names which were causing the plaintiff damage. the harrods court‘s reasoning is dubious. the equivocation between a domain name registrant and an absentee land owner is not seamless. for one thing, the decision is unclear as to whether the domain names were actually in use or if they were simply parked. in the second case, the analogy makes a little more sense. however, if the domain names were being used in connection with a bona fide offering of goods or services, it is hard to see how the analogy finds application. another problem with this decision is the assertion that a domain name is situated at the seat of the registrar that registered it. while nsi is located in virginia, the servers containing the information and files that made up the website were not. if the website is ―situated‖ anywhere, would it not be in the jurisdiction in which those servers are located? the harrods case further extends the acpa‘s reach to allow transfers of domain names in instances where there is legitimate concurrent use of the same trademark by two entities. unlike corinthians, the plaintiff in harrods actually did have a u.s. trademark registration. at the same time, while corinthians dealt with a more classic example of cyber-squatting, the court in harrods transferred the domain names in spite of the fact that hba had legitimate trademark rights therein, an outcome that should never be reached by a udrp panel. 84 while not expressly saying so, the court in this case essentially said that a foreign trademark can ―infringe‖ a u.s. trademark for the purposes of a domain name dispute under the acpa.  nbc universal, inc. v nbcuniversal.com 85 no decision rendered under the acpa is as expansionist as the district court for the eastern district of virginia in nbc universal. junak kwon registered ―nbcuniversal.com‖ in korea with a korean registrar. nbc undertook a wipo udrp proceeding in which kwon failed to appear. kwon brought an action in a korean court causing the udrp 83 harrods (n 14) 225. 84 this is likely why harrods uk never bothered undertaking a udrp proceeding and instead chose to challenge hba in the courts of england and then the us. 85 [2005] 78 f supp 2d 715, 717-18. the denning law journal 225 panel to abstain from ordering the transfer of the domain name pending the korean court‘s decision. nbc universal concurrently started an in rem action under the acpa. in spite of the fact that the korean action was already pending, the district court refused to stay proceedings on the grounds that the action in korea was in personam whereas the action before it was in rem. the court seemingly ignored the fact that despite this legal technicality, the subject-matter of the disputes was identical. as to jurisdiction, the court found that because verisign inc., the registry that administers the ―.com‖ gtld registry is located in virginia, it had jurisdiction over the claim. this reasoning is based on § 1225(d)(2)(a) of the acpa: the owner of a mark may file an in rem civil action against a domain name in the judicial district in which the domain name registrar, domain name registry, or other domain name authority that registered or assigned the domain name is located if— (i) the domain name violates any right of the owner of a mark registered in the patent and trademark office, or protected under subsection (a) or (c) of this section; (emphasis added). this means that the u.s. district court for the eastern district of virginia has jurisdiction over any ―.com‖, ―.net‖ or ―.gov‖ domain name (it manages the registries for those tlds as well as the cctlds ―.cc‖ and ―.tv‖), even if the it is registered by a non-u.s. citizen with a registrar in a foreign jurisdiction, as was the case in nbc universal. the foregoing three cases show that u.s. courts are ready to accept jurisdiction over acpa claims in a broad range of circumstances in which a court would traditionally decline jurisdiction. this is largely facilitated by the in rem jurisdiction conferred by §1225(d)(2)(a) of the acpa. sallen allows a litigant to pursue a reverse-domain name hijacking claim against a party whose trademarks are registered outside the u.s. harrods endorses the idea that a foreign trademark can ―infringe‖ a u.s. trademark for the purposes of determining rightful ownership over a domain name. under nbc universal, the u.s. district court for the eastern district of virginia has jurisdiction over any second-level domain under the ―.com‖, ―.net‖ or ―.gov‖ gtlds registered worldwide. nbc universal also shows at least one american court‘s unwillingness to decline jurisdiction even when another seemingly competent court is addressing substantively the same issue. a proposal for a model law dealing with cybersquatting 226 h. shortcomings of the acpa being the only national law to deal directly with the problem of cybersquatting, any proposal for a model law should examine the acpa‘s shortcomings to avoiding potential pitfalls. on the positive side, the acpa is a powerful vehicle for trademark holders. it also provides a certain degree of balance by allowing a registrant to fight what it thinks is a bad udrp panel decision. the case law outlined above, however, shows what may arguably be called an unjustifiable overreaching by american courts. the court in sallen showed a total disregard for the respondent‘s foreign trademark rights. the internet is a global network whereas trademark rights are necessarily territorial. the sallen court‘s assertion that congress‘ use of the term ―domain name‖ in the acpa gives it jurisdiction to hear any case relating to a domain name regardless of other jurisdictional factors is problematic. this approach would be unsustainable if other countries enacted similar laws and their national courts began taking the same view. forum shopping would likely become an issue. harrods shows even greater disregard for foreign trademark rights. as noted, the global nature of the internet sometimes conflicts with the territorial nature of trademarks. the udrp deals with this by adopting a ―first to register‖ system. in other words, in a competition between two or more trademark holders, the first to register the domain name should get it and the others should have no recourse so long as the registrant has a ―legitimate interest‖ in the domain name. the respondent in harrods did have a legitimate interest in the domain names in question; it was a registered trademark holder (though not of u.s. trademarks). the idea that a foreign trademark could be treated as ―infringing‖ a u.s. trademark for the purposes of determining domain name rights shows a wanton disregard for non-u.s. jurisdictions, also known as the rest of the world. finally, if the court in nbc universal‘s reasoning is to stand, the fact that verisign inc. is located in virginia has the effect of granting a single u.s. district court jurisdiction over the whole .com tld which is currently comports more than 100 million domain names and growing. 86 the court‘s indifference to the pending litigation in korea over the same issue is also troubling. in addition to being an affront to judicial economy, 86 sean michael kerner, ‗dot com domains top 105 million names‘ (enterprise networking planet, 2 january 2013) <http://www.enterprisenetworkingplanet.com/netsp/dot-com-domains-top-105million-names.html> accessed 2 november 2014. the denning law journal 227 conflicting judgements from two different national courts may cause enforcement issues, particularly when the domain name registry is not located in one of the states in which a court action has been brought. some authors have pointed to the growing unease in certain countries vis-à-vis the current state of internet governance. 87 not everyone is comfortable with the u.s. government‘s significant influence over icann. in fact, at a 2005 un summit, more than 170 countries pressured the u.s. government to relinquish its unilateral oversight over icann; it refused. 88 there has even been talk of private companies in other countries starting their own intranets which would be excluded from icann‘s control. 89 users of these intranets would not be excluded from the greater internet, but they would be excluded from the udrp. given the ruling in sallen, however, it is debatable as to whether even these drastic measures would be enough to prevent a u.s. court from accepting jurisdiction under the acpa. 4. a potential path forward – a model law on cyber-squatting and other abusive domain name practices having established that the current domain name regulatory framework can be improved upon, this paper proposes a model law dealing with cyber-squatting and other abusive domain name practices made to work in place of or in tandem with the udrp. before addressing the substantive provisions of the model law as well as its benefits and shortcomings, we must first establish that regulation is in fact the best form of action, and that a model law is the most rational regulatory avenue. a. is regulation the best form of action? most countries, with the notable exception of the u.s., have not enacted national legislation dealing with cyber-squatting, relying instead upon trademark laws and the udrp to address the issue. based on the shortcomings of the udrp and national trademark laws, and given the 87 horowitz (n 80). see also christopher rhoads, ‗in threat to internet‘s clout, some are starting alternatives‘ (yale global, 31 january 2006) <http://yaleglobal.yale.edu/display.article?id=6906> accessed 2 november 2014. 88 horowitz (n 80) 212. 89 rhodes (n 87). a proposal for a model law dealing with cybersquatting 228 established fact that cyber-squatting is a problem that shows no sign of stopping or slowing down under the current regulatory framework, further regulatory efforts are warranted. since cyber-squatting only directly affects a relatively small subset of the population (i.e. trademark holders and domain name registrants) market-based solutions are inapplicable. 90 unlike perpetrators of online copyright infringement, cyber-squatters are relatively few in number compared with the total number of internet users. a broad-based educational regime would therefore have little effect. further, most cybersquatters likely know that what they are doing is objectionable, or at least that it contravenes the udrp; this does not seem to stop them. a. what form should the regulation take? a model law is the best regulatory approach as set out in section 5 below, this paper espouses the idea of a model law on cyber-squatting and other abusive domain name practices. there are potential alternatives, for example, a convention to amend national trademark laws to include specific causes of action for cyber-squatting. another route would be advocating for a re-vamped udrp that takes into consideration the legal and empirical shortcomings referenced above. a model law approach would be superior to a convention in that it would create actual legal provisions outlining new causes of action and legal procedures that an adopting country could implement with minimal legislative effort. since uniform interpretation is a goal, having experts in the area draft purposeful provisions (and potentially provide explanatory notes) would maximize that objective. a convention on this subject-matter would, by contrast, create obligations for signatories without providing any concrete guidance on how to fulfil them. the model law approach is also superior to advocating for a revamped udrp. even if icann could be persuaded to retool the udrp to the point where all of the above mentioned concerns would be addressed, the fact remains that it is a policy created by a u.s. non-profit with the u.s. government backing. icann itself has been accused of operating in a less than democratic manner. 91 the model law would achieve the result of a reworked udrp while respecting national 90 while it can be argued that cyber-squatting indirectly affects society as a whole, the average individual may be entirely unaware of these practices. 91 see: a michael froomkin, ‗wrong turn in cyberspace: using icann to route around the apa and the constitution‘ [2000] 50 duke lj 17. the denning law journal 229 sovereignty and the fact that the internet is a truly international (or more accurately supra-national) space. the model law would also be capable of working in tandem with the udrp offering disputants the choice to proceed under that policy if they so choose. in addition to the above approaches, there is also the option of allowing individual countries to figure cyber-squatting out themselves (or not). the author does not believe that an uncoordinated, de-centralized effort is appropriate given the global nature of the problem and that the structure of the internet makes compartmentalized regulation a challenge. be it a model law or some other instrument, the chosen approach should seek to promote a harmonized regime. b. is there a legal basis for a model law framework? there is a legal basis for a model law dealing with cyber-squatting and other abusive domain name practices. the model law approach‘s flexibility allows the adopting country to adjust the model law to fit seamlessly into the country‘s existing legal regime. this assures respect for the rule of law. since there is no existing international instrument dealing directly with cyber-squatting, the model law would not conflict with adopting countries‘ existing treaty obligations. c. which is the appropriate level (or levels) of government to implement the model law? the appropriate level of government to deal with the adoption and implementation of the model law depends on the constitutional framework of the country in question. in canada, the model law would almost certainly have to be adopted at the provincial level in accordance with article 92(13) of the constitution act (1867) 92 (property and civil rights in the province). the model law will also include certain procedural provisions (discussed in more detail below) which would engage article 92(14) (the administration of justice in the province) as well. d. do the benefits of a model law outweigh its costs? the model law is a particularly economic approach for at least two reasons: 92 30 & 31 victoria, c 3 (uk). a proposal for a model law dealing with cybersquatting 230 1) since it is already drafted, the adoption process is much smoother and less time-consuming for legislators and legislative drafters. this makes it less demanding on the public purse. 2) it uses each adopting country‘s existing legal system. the law‘s procedural provisions will reference the adopting jurisdiction‘s existing procedural rules rather than create new procedures. while the subset of the population that will benefit directly from the model law is relatively small, adopting it does not pose any obvious social cost given that: 1) it is ―complain-driven‖; and 2) it poses no budgetary cost (i.e. need to create a regulatory body or bureaucracy). e. the model law’s provisions must be clear, consistent, comprehensible, and accessible to users in order to maximize the model law‘s utility, an effort should be made to both employ a plain language drafting style and, wherever appropriate, define terms exhaustively. this approach maximizes both transparency and certainty for potential litigants. one example of how this will be implemented in the model law is the reverse-domain name hijacking provision. as discussed more fully below, that provision will begin by exhaustively defining reverse-domain name hijacking. this is not the case under the udrp. udrp rule 15(e) defines reverse-domain name hijacking as: ―the filing of a complaint in bad faith, resulting in the abuse of the udrp administrative process.‖ this definition is vague. first, the provision does not tell us what constitutes abuse of the udrp process. second, the provision fails to define bad faith. the udrp offers examples of bad faith registration at section 4(b), but that provision clearly does not apply to the term bad faith as used in rule 15(e). the model law provision will list factors for courts to apply when considering whether to grant a plaintiff‘s cause of action. creating a freely available database and digest of decisions dealing with the model law will also achieve the ends of consistency, accessibility and transparency. the united nations commission on international trade law (uncitral) has implemented this strategy in the creation of its ―case law on uncitral texts‖ (clout) database. the uncitral commission on international trade law has noted the positive effects the clout database has had on promoting uniform application of uncitral texts. 93 93 report of the united nations commission on international trade law, fortyseventh session (7-18 july 2014), (united nations, new york, 2014), 32. the denning law journal 231 f. all interested stakeholders should be consulted the three major stakeholders implicated by cyber-squatting regulation are: trademark owners, domain name registrants who are not trademark owners and the general public. 94 adopting countries should consult representatives of these groups before implementing the model law. since the model law will encourage a balanced approach, all three of these groups should (in principle) be in favour of it. representatives of these groups will, however, lobby for amendments to the law favourable to their respective priorities, which will often collide. g. how will compliance with the model law be achieved? one of the weaknesses of the model law approach (discussed more fully below) as with any international instrument is that a sovereign state cannot be forced to adopt it. the hope is that governments will see the merits in the model law and wish to adopt it. however, once the model law is adopted, compliance will be achieved through the adopting country‘s judicial system. once implemented, the model law will be enforceable like any other law. compliance would be encouraged by the fact that the law is backed by the executory force of the judicial system. this may be contrasted with a model law favouring arbitration where a successful party would, after succeeding before the arbitral tribunal, still have to commence proceedings before the court in the enforcement jurisdiction (this is known as single exequatur or homologation). 95 benefits and shortcomings of a model law approach as with any regulatory approach, a model law comports both benefits and shortcomings. the author is naturally of the opinion that the former outweigh the latter in the present context. 94 see warren b chick, ‗lord of your domain but master of none: the need to harmonize and recalibrate the domain name regime of ownership and control‘ [2008] 16 int‘l jl & info tech 8, 32. 95 see a redfern and m hunter, law and practice of international commercial arbitration (4th edn, sweet & maxwell, 2004), 516; and antonin i pribetic, ‗―winning is only half the battle‖: procedural issues relating to the recognition and enforcement of foreign arbitral awards‘ [2009] 8 icfai university journal of alternative dispute resolution 11, 13. a proposal for a model law dealing with cybersquatting 232 h. benefits as noted in brief above, the model law offers the best of both worlds: certainty of content and flexibility of implementation. different countries have varying judicial procedures and systems of adjudication. the most obvious distinction is between common law and civil law jurisdictions. the model law‘s drafting will be juridically neutral. this means that the provisions of the law will either make use of only neutral terms (i.e. terms that do not derive specifically from common law or civil law) or will include the terms applicable in both legal traditions. 96 another benefit is the creation of binding precedent within a given jurisdiction and persuasive jurisprudence vis-à-vis other model law countries. like all arbitral awards, the decisions of udrp panels are not binding on future panels. 97 this has led to inconsistent and often conflicting decisions. 98 in contrast, courts in common law jurisdictions operate under the principle of stare decisis, the rule that courts are bound by prior decisions dealing with the same subject-matter. while this is not the case in civil law jurisdictions, there is the notion of jurisprudence courante. this doctrine stands for the proposition that, without being binding, a steady current of consistent decisions on a legal point (especially by a country‘s high court) is highly persuasive on other courts. 99 these doctrines serve the important objective of providing legal certainty to litigants (and potential litigants) which is currently lacking under the udrp. to amplify the benefit of this new body of case law, the entity responsible for drafting the model law should keep and update a searchable database which should be freely accessible. as noted above, this has already been implemented by uncitral to positive effect. 96 an example of the latter technique may be found at s 75 of the canadian bankruptcy and insolvency act, rsc, 1985, c b-3: ‗despite anything in this act, a deed, transfer, agreement for sale, mortgage, charge or hypothec…‘ 97 yun zhao, ‗reflection on the finality of panel‘s decisions in domain name dispute resolution process, with reference to china‘s practice‘ [2008-2009] 26 j marshall j comp & info l 395, 399-400. 98 ibid, 408. 99 see jean-louis baudoin, ‗the impact of the common law on the civilian systems of louisiana and quebec‘, in joseph dainow, the role of judicial decisions and doctrine in civil law and in mixed jurisdictions (louisiana state university press 1974) 13; and jean boulanger, ‗notations sur le pouvoir créateur de la jurisprudence civile‘ [1961] 59 revue trimestrielle de droit civil 417. the denning law journal 233 the models law‘s treatment of cyber-squatting and reverse-domain name hijacking as legislatively and conceptually separate from trademark law is another key benefit. while related, domain names and trademarks are not the same. the legal principles surrounding trademark law can be ill-fitting in the cyber-squatting context. for example, a key concepts in trademark law is consumer confusion. in canada (like many other jurisdictions), in order to demonstrate trademark infringement, a plaintiff must show a likelihood that the average canadian consumer would be confused by the defendant‘s mark into thinking that the latter‘s goods or services were actually being offered by the plaintiff. 100 in many cases, the average consumer would not be confused by a cyber-squatter‘s use of a trademark in a domain name. 101 some jurisdictions including canada and the u.s. require that a defendant ―use‖ a trademark for there to be trademark infringement. 102 cyber-squatters often do not post any content (or relevant content) to the domain. 103 in these cases, even though the defendant is clearly engaging in cyber-squatting, a plaintiff in a trademark infringement action would be unsuccessful due to its inability to meet the threshold use requirement. 104 other trademark related causes of action such as trademark dilution under american trademark law have been applied to the domain name context as well. 105 some trademark holders have found success with dilution arguments. 106 there are still gaps in protection, however. first, the dilution provisions only apply to ―famous trademarks‖. 107 this shortchanges trademark owners who have not achieved ―fame‖ status, but are 100 mattel, inc v 3894207 canada inc [2006] scc 22, 56. 101 keith blackman, ‗the uniform domain name dispute resolution policy: a cheaper way to hijack domain names and suppress critics‘ [2001] 15:1 harv jl & tech 212, 217. 102 clairol international corp v thomas supply & equipment co [1968] 55 cpr 176, 3. 103 blackman (n 101) 218. 104 there must also be a commercial component to the use by the cyber-squatter. s 4 of the canadian trade-marks act, rsc, 1985, c t-13 requires use ―in the normal course of trade‖. the relevant provisions of the lanham act require ―use in commerce‖. 105 federal trademark dilution act, codified at 15 usc s 1125(c). 106 see intermatic inc v toeppen [1996] 947 f supp 1227. 107 the provision reads: ―subject to the principles of equity, the owner of a famous mark that is distinctive, inherently or through acquired distinctiveness, shall be entitled to an injunction against another person who, at any time after the owner’s mark has become famous, commences use of a mark or trade name…‖(emphasis added). a proposal for a model law dealing with cybersquatting 234 well-known enough to attract a cyber-squatter. second, the provision is only meant to apply to instances in which there is ―blurring‖ or ―tarnishment‖ of the plaintiff‘s trademark. 108 in some instances a cybersquatter registers a domain name and immediately contacts the trademark owner to offer it for sale without populating it with content. in these cases, no blurring or tarnishment could have occurred. i. shortcomings like any international instrument, a model law is only useful if it is implemented. some model laws have been very well received. two examples of these are the uncitral model law on international commercial arbitration and the uncitral model law on electronic commerce which have been adopted in 67 countries (totalling 97 jurisdictions) and 61 countries (totalling 126 jurisdictions) respectively. 109 others have been made available for adoption for several years without implementation by a single jurisdiction. 110 since the u.s. already has the acpa, it would likely not sign onto the model law. given that u.s. courts have demonstrated a willingness to exercise extra-territorial jurisdiction when it comes to domain names, the effect of the model law may be attenuated. that said, u.s. courts are predisposed to exercise extra-territorial jurisdiction as it is under the acpa. there is no reason why implementing the model law would exacerbate that fact. though improving the corpus of international domain name law, the model law will not have the effect of creating internationally binding precedents. the court decisions in one sovereign country will never have binding effect on courts in other sovereign countries; there is thus still room for contradictory jurisprudence. 108 blackman (n 101) 219. see also toppen (n 106) and hasbro inc v internet entm’t group, ltd, [1996] 40 us p q 2d 1479. 109 see ‗uncitral texts and status‘ (united nations commission on international trade law) <http://www.uncitral.org/uncitral/en/uncitral_texts.html> accessed 14 november 2014. 110 for example, the uncitral model law on international credit transfers (1992) has not been ratified anywhere, although a directive of the european parliament and of the council of the european union based on the principles of the model law was issued on 27 january 1997. another example is the uncitral model law on public procurement (2011) which has yet to be adopted. the denning law journal 235 in spite of the shortcomings to the model law approach, the author is still of the opinion that they are far outweighed by the benefits. j. key provisions of the model law the model law‘s two most important provisions are the cybersquatting and the reverse-domain name hijacking causes of action. this section will also outline a few other key provisions to be drafted into the model law. k. cause of action for cyber-squatting this provision seeks to improve upon section 4 of the udrp. the udrp requires the complainant to prove that the respondent has ―no rights‖ in the disputed domain name. this asks the complainant to prove a negative. instead, the model law provision will require the plaintiff to show that, after exercising reasonable diligence, it is unable to identify any legitimate rights in the domain name. the provision will set out a non-exhaustive list of what constitutes legitimate rights; this list will include express recognition of free expression rights. 111 once this threshold is met, the burden will shift to the defendant to show that it does in fact have a legitimate right. the acpa‘s wording seems to be a good starting point. like the acpa, the provision will expressly include protection for personal names. the provision will also favour the acpa‘s ―bad faith intent to profit‖ language over the udrp‘s ―registration and use in bad faith‖ language. this will capture passive domain name warehousing so long as it can be shown that the warehouse‘s only reasonable goal was to lure the trademark owner into making an offer to purchase the domain name. the bad faith considerations listed in the acpa will also be incorporated, with certain exceptions. for example § 1125(d)(1)(b)(viii) reads: [t]he person‘s registration or acquisition of multiple domain names which the person knows are identical or confusingly similar to marks of others that are distinctive at the time of registration of such domain names, or dilutive of famous marks of others that are famous at the time of registration of such domain names, without regard to the goods or services of the parties. 111 the acpa references ‗bona fide [sic] non-commercial or fair use‘ at s 1125(d)(1)(b)(iv). since fair use is a doctrine found exclusively in us law, the model law will us more neutral ‗freedom of expression style‘ language. a proposal for a model law dealing with cybersquatting 236 this factor would be excluded. the intention here was to allow the court to consider whether the defendant has demonstrated a pattern of cyber-squatting. this is not relevant. the cause of action is against cybersquatting, not the identification and elimination of cyber-squatters. the action is between the plaintiff and defendant. the only relevance is whether the defendant has infringed the plaintiff‘s rights. we do not consider a defendants prior conduct when determining infringement in the patent, copyright and trademark contexts; why should it be considered here? the model law will also allow in rem actions against websites. unlike the acpa, this will only be allowed when, after exercising due diligence, the plaintiff was unable to locate the defendant. the acpa also allows for an in rem action when the plaintiff is ―unable to obtain in personam jurisdiction‖ over a would-be defendant. 112 this was applied in nbc universal to allow the u.s. district court to assume jurisdiction even though nbc was able to locate the registrant. limiting in rem actions to instances in which the registrant legitimately cannot be found would limit the potential for jurisdictional encroachments like the one in nbc universal. cause of action for reverse-domain name hijacking this provision will provide an individual who feels they have been wronged by a domain name dispute panel with a means of retaining their domain name and obtaining damages for frivolous or vexatious proceedings undertaken by a complainant. the model law‘s reversedomain name hijacking provision will exhaustively define the term. one possible definition could be the following: ―reverse-domain name hijacking‖ refers to the act of instituting frivolous, vexatious or baseless proceedings under the udrp or another domain name dispute policy. the provision would then set out a test for determining whether to grant a reverse-domain name hijacking claim. some of the factors to be considered would include the following: o assuming the facts alleged by the complainant are true, does complainant meet the legal standard required to succeed under the relevant policy? o did complainant make an attempt to settle the matter amicably with respondent before instituting proceedings? o did complainant undertake any due diligence to determine the existence and extent of respondent‘s rights in the disputed domain name? 112 s 1125(d)(2)(a)(ii)(i). the denning law journal 237 o did respondent attempt to communicate to complainant that it had rights in the disputed domain name? o does respondent‘s domain name registration predate complainant‘s trademark rights? note that none of these factors directly refers to the correctness of the panel‘s decision. this is because the reverse-domain name hijacking provision is not an ―appeal‖ or ―review‖ of the panel‘s decision so much as it is a cause of action against the complainant in that process. this approach is necessary due to the inconsistency with which udrp panels apply legal concepts. if the model law allowed for a judicial review of panel decisions, courts in each adopting jurisdiction would likely look at the case as a function of whether the decision conforms to that jurisdiction‘s trademark law. this would thwart the model law‘s harmonization objective. l. other key provisions a few other key provisions to be included in the model law include:  jurisdictional provision the model law will maximize jurisdictional certainty to minimize forum shopping. every jurisdiction has its own body of private international law. however, the model law may offer guidance on whether the court should accept jurisdiction over a cause of action thereunder. some potential factors for determining jurisdiction could be: o residence of parties o location of trademark registration o location of the domain name registry o country in which one of the parties has significant assets or business dealings. the author does not advocate for any of these in particular. further study should be given to the question of what constitutes the best indicator of appropriate jurisdiction. the location of the domain name registry (applied in nbc universal) appears to be a weak factor because it would grant exclusive jurisdiction to a single court for each tld. it is, however, a potential factor and should therefore be left on the table until decided otherwise by the drafters of the model law. a proposal for a model law dealing with cybersquatting 238  default should be summary or abridged proceeding one of the udrp‘s benefits is its speed and cost-effectiveness. no court process will be as cheap as a udrp proceeding. however, the model law could favour quick and cost-effective resolution by including a provision which presumes a summary or simplified procedure wherever such an option exists in the adopting country‘s procedural rules. the model law would employ neutral language so as not to refer to a specific type of procedure. for example, the provision would not expressly use the term ―summary proceeding‖ or ―simplified procedure‖ as those terms refer to procedural rules that may not exist everywhere. adopting jurisdictions would then be free to modify the text of this provision to refer to their own procedural mechanisms. for example, in ontario, the model law could refer to the simplified procedure rules (rule 76) in the rules of civil procedure. 113  burden of proof the model law should have a provision expressly setting out which party has the burden of proof in a given context. this will almost always be the plaintiff, though certain provisions -such as the requirement for a defendant in a cybersquatting action to show that it does have rights in the domain name after the plaintiff demonstrates reasonable diligence in trying to ascertain the existence of those rights may reverse that presumption.  stay provisions the model law should comport a stay provision allowing: 1) a party to have the court order that a domain name dispute resolution panel stay its proceedings pending final resolution by the court; and 2) a party to have a proceeding taken under the model law stayed if there is a pending proceeding in another model law jurisdiction dealing with the same subject-matter. 5. conclusion 113 rro 1990, reg 194. the denning law journal 239 the current domain name dispute resolution framework is inadequate as the udrp, acpa and national trademark laws are only partially effective. the model law presents a novel solution. the model law is superior to the udrp because: it creates an exhaustive legal regime under which no reference need be made to trademark law; decisions invoking the model law are final; it eliminates the propensity for bias inherent in the complainant/provider-driven udrp panel selection process; the greater variety in legal background of judges eliminates the pro-intellectual property slant some udrp panellists may carry; it provides robust protection against reverse-domain name hijacking; it captures passive warehousing; it protects personal names; and it will not conflict with national consumer protection and language laws. the model law‘s key cyber-squatting provision will bear a stark resemblance to § 1125(d) of the acpa. however, the jurisdictional provisions in the model law will do a much better job of circumscribing the jurisdiction of the national courts in adopting countries. trademark law has never fully addressed cyber-squatting. the fact that the model law would be treated as conceptually separate from trademark law would allow for the case law developing around the new causes of action to be uninhibited by those ill-fitting concepts. since there are currently no international treaties on cyber-squatting, there is a legal basis for a model law dealing with cyber-squatting and other abusive domain name practices. the appropriate level of government to deal with the adoption and implementation of the model law depends on the constitutional framework of the country in question. the benefits of the model law justify its minimal implementation cost because: 1) the model law comes essentially ready for implementation cutting the time and cost associated with enacting legislation from the ground up; and 2) since litigants would go before the courts, there would be no need to create any additional administrative body for oversight or adjudication. the law‘s provisions will be clear, consistent and accessible. this will be achieved primarily through plain language drafting and properly defined terms. all interested stakeholders, namely trademark owners, domain name registrants who are not trademark owners and the general public, should be consulted before the model law is implemented in each adopting country. compliance with the model law, once enacted, will be achieved through the adopting country‘s established judicial system and will enjoy the benefit of the executory force attached thereto. while it represents a significant undertaking, this paper shows that drafting and implementing a model law dealing with cyber-squatting and other abusive domain name practices would be the most effective a proposal for a model law dealing with cybersquatting 240 regulatory approach to curbing cyber-squatting and reverse-domain name hijacking. the udrp and acpa are fifteen years old. both are laudable efforts, but neither has ever adequately measured up to the task of eliminating (or greatly diminishing) cyber-squatting. perhaps, in 2014, it is time to revisit the domain name regulatory framework and create a complete, harmonizing document in the hopes of addressing the issue once and for all.